political law review - j.v.p....

POLITICAL LAW REVIEWVOLUME II

Based on the outline of Justice Vicente V. Mendoza

May 1996 Revised Edition

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Compiled by Jose Salvador Y. Mirasol

Updated by UP Law Batch 1995

Updated and Enlarged by Rodell A. MolinaUP Law Batch 1996

This work is dedicated to the members of UP Law Batch 1996, to which I belong, especially to the members of Prof. Barlongay's class in Political Law Review, without whose encouragement and support, this work would not have been accomplished.

Special thanks to Lianne Tan for lending me her diskette in Political Law Review as updated by UP Law Batch 1995, Shirley Alinea and Raquel Ruiz for lending me their notes, Non Lerrer, Buddy Carale, TJ Matta and Irene Isidoro for patiently printing this work.

To the Lord Almighty, this work is lovingly dedicated

RAM

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II. THE CONSTITUTIONAL COMMISSIONS

Independent Constitutional Commissions

Art. IX, A, Sec. 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission (CSC). the Commission on Elections and (COMELEC), and the Commission on Audit (COA).

A. Civil Service Commission

1. Composition and qualifications of Commissioners

Art. IX, B, Sec. 1. (1) The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirtyfive years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment.

Art. VII, sec. 13. xxxThe spouse and relatives by consanguinity or affinity within the fourth civil degree of the

President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries.

2. Appointment and term of Office

Art. IX, B, Sec. 1. xxx(2) The Chairman and the Commissioners shall be appointed by the President with the consent of

the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Transitional terms

Of the first appointment, the Chairman shall serve for 7 years, without reappointment. Of the Commissioners, the following periods apply:

1 Commissioner for 5 years; another for 3 years without reappointment

3. Appointment of personnel of CSC

Art. IX, A, Sec. 4. The Constitutional Commissions shall appoint their officials and employees in accordance with law.

4. Salary

Art. XVIII, Sec. 17. Until the Congress provides otherwise xxx the Chairmen of the Constitutional Commissions (shall receive an annual salary of) two hundred four thousand pesos each; and the Members of the Constitutional Commissions, one hundred eighty thousand pesos each.

Art. IX, A, Sec. 3. The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure.

The salary, of course, can be increased and the increase can take effect at once, since, like the Judiciary, the Constitutional Commissions have not part in the passage of such a law.

5. Disqualifications

Art. IX, A, Sec. 2. No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including governmentowned or controlled corporations or their subsidiaries.

No members of a Constitutional Commission shall during his "tenure" :

a. Hold any other office or employment.

This is similar to the prohibition against executive officers. It applies to both public and private offices and employment.

b. Engage in the practice of any profession.

c. Engage in the active management or control of any business which in any way may be affected by the

functions of his office.

d. Be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by, the Government, its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries.

6. Impeachment

Art. XI, Sec. 2. xxx [T]he members of the Constitutional Commissions xxx may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. xxx

7. Functions of the CSC

Art. IX, B, Sec. 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel program.

Art. IX, A, Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

Id., Section 8. Each Commission shall perform such other functions as may be provided by law.

8. Scope of the Civil Service

Art. IX, B, Sec. 2 (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including governmentowned or controlled corporations with original charters.

Art. XII, Sec. 16. xxx. Governmentowned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

National Service Corp. v. NLRC, 168 SCRA 125 (1988) The civil service does not include Government owned or controlled corporations (GOCC) which are organized as subsidiaries of GOCC under the general corporation law.

F: Eugenio Credo was an employee of the National Service Corporation. She claims she was illegally dismissed. NLRC ruled ordering her reinstatement. NASECO argues that NLRC has no jurisdiction to order her reinstatement. NASECO as a government corporation by virtue of its being a subsidiary of the NIDC, which is wholly owned by the Phil. National Bank which is in turn a GOCC, the terms and conditions of employment of its employees are governed by the Civil Service Law citing National Housing v Juco.

ISSUE: W/N employees of NASECO, a GOCC without original charter, are governed by the Civil Service Law.

HELD: NO. The holding in NHC v Juco should not be given retroactive effect, that is to cases that arose before its promulgation of Jan 17, 1985. To do otherwise would be oppressive to Credo and other employees similarly situated because under the 1973 Consti but prior to the ruling in NHC v Juco, this court recognized the applicability of the Labor jurisdiction over disputes involving terms and conditions of employment in GOCC's, among them NASECO.

In the matter of coverage by the civil service of GOCC, the 1987 Consti starkly differs from the 1973 consti where NHC v Juco was based. It provides that the "civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government owned or controlled corporation with original charter." Therefore by clear implication, the civil service does not include GOCC which are organized as subsidiaries of GOCC under the general corporation law. Adapted.

Trade Unions of the Philippines and Allied Services (TUPAS) VS. NHA, 173 SCRA 33

F: Respondent NHC is a corporation organized in 1959 under the Uniform Charter of Government Corporations. Its shares of stock have been 100% owned by the Government from its incorporation. Petitioner TUPAS is a legitimate labor organization with a chapter in NHC. TUPAS filed a petition for certification election with DOLE. It was denied. Adapted.

HELD: The civil service now covers only govt owned or controlled corporations w/ original or legislative charters, that is those created by an act of Congress of by special law, and not those incorporated under and pursuant to a general legislation.

xxxThere is, therefore, no impediment to the holding of a certification election among the workers of NHC

for it is clear that they are covered by the Labor Code, the NHC being a govt owned and/ or controlled corp. w/o

an original charter. RAM.

Alliance of Government Workers v Minister of Labor and Employment, 124 SCRA 1 (1983)

F: Petitioner is a federation of unions in govtowned corps. and in govt schools. It petitioned the SC for a ruling that PD 851, requiring "all employers... to pay their employees receiving a basic salary of not more than P1,000 a month... a 13th month pay," applies to govt employees. VV. HELD: NO. It is an old rule of statutory construction that restrictive statutes and acts w/c impose burdens on the public treasury or w/c diminish rights and interests, no matter how broad their terms do not embrace the Sovereign, unless the Sovereign is specifically mentioned. The Republic of the Phil. as a sovereign cannot be covered by a general term like "employer" unless the language used in the law is clear and specific to that effect.

ISSUE 2: May government employees act through a labor federation which uses the collective bargaining power to secure increased compensation for its members?

HELD: NO. The terms and conditions of employment in the Government including any political subdivision or instrumentality thereof are governed by law. And this is effected through statutes or administrative circulars, rules and regulations and not through Collective Bargaining agreements.

Under the present constitution, (1973), GOCC's are now part of the civil service, thus, not allowed to use concerted activities to get other benefits or higher salaries different from that provided by law and regulation. Adapted.

OVERRULED:

Governmentowned or controlled Corporations, Considered and Defined.

National Housing Corp. v. Juco, 134 SCRA 172 (1985)

F: Juco was an employee of the NHA. He filed a complaint for illegal dismissal w/ MOLE but his case was dismissed by the labor arbiter on the ground that the NHA is a govtowned corp. and jurisdiction over its employees is vested in the CSC. On appeal, the NLRC reversed the decision and remanded the case to the labor arbiter for further proceedings. NHA in turn appealed to the SC. VV.

ISSUE: Are employees of the National Housing Corporation, a GOCC without original charter, covered by the Labor Code or by laws and regulations governing the civil service?

HELD: Sec. 11, Art XIIB of the Constitution specifically provides: "The Civil Service embraces every branch, agency, subdivision and instrumentality of the Government, including every government owned and controlled corporation.

The inclusion of GOCC within the embrace of the civil service shows a deliberate effort at the framers to plug an earlier loophole which allowed GOCC to avoid the full consequences of the civil service system. All

offices and firms of the government are covered.This consti provision has been implemented by statute PD 807 is unequivocal that personnel of GOCC

belong to the civil service and subject to civil service requirements."Every" means each one of a group, without exception. This case refers to a GOCC. It does not cover

cases involving private firms taken over by the government in foreclosure or similar proceedings. Adapted.

xxxFor purposes of coverage in the Civil Service, employees of govt owned or controlled corps. whether

created by special law or formed as subsidiaries are covered by the Civil Service Law, not the Labor Code, and the fact that pvt. corps. owned or controlled by the govt may be created by special charter does not mean that such corps. not created by special law are not covered by the Civil Service.

xxxThe infirmity of the resp's position lies in its permitting the circumvention or emasculation of Sec. 1,

Art. XIIB [now Art IX, B, Sec. 2 (1)] of the Consti. It would be possible for a regular ministry of govt to create a host of subsidiary corps. under the Corp. Code funded by a willing legislature. A govtowned corp. could create several subsidiary corps. These subsidiary corps. would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict accountability required by the Civil Service Dec. and the regulations of the COA. Their incomes would not be subject to the competitive restraint in the open market nor to the terms and conditions of civil service employment. Conceivably, all govtowned or controlled corps. could be created, no longer by special charters, but through incorp. under the general law. The Constitutional amendment including such corps. in the embrace of the civil service would cease to have application. Certainly, such a situation cannot be allowed. VV.

Quimpo v. Tanodbayan, 146 SCRA 137 Tanodbayan Has Jurisdiction over all Government Owned Firms Regardless of How Organized.

F: F. Quimpo filed a complaint w/ the Tanodbayan (TB) charging G. Dimaano and D. Remo, manager and analyst of Petrophil, w/ viol. of RA 3019 for their refusal to pay Quimpo's fees as surveyor. The TB dismissed the complaint, however, on the ground that his jurisdiction extended only to govt owned corps. organized under a special law. Petrophil is a corp. organized under the Gen. Corp. Code; it was acquired by the govt to carry out its oil and gasoline programs. Quimpo filed a petition for certiorari, questioning the decision of the TB. The new TB confessed judgment. VV.

ISSUE: WON PETROPHIL is a government owned or controlled corporation whose employees fall within the jurisdictional purview of the Tanodbayan for purposes of the Antigraft and Corrupt Practices Act?

HELD: YES. Uphold the Tanodbayan jurisdiction. While it may be that PETROPHIL was not originally "created" as a GOCC, PETROPHIL became a subsidiary of PNOC and thus shedoff its private status. It is now funded and owned by the government as in fact, it was acquired to perform functions related to governmental programs and policies on oil. It was acquired not temporarily but as a permanent adjunct to perform essential government related functions. Adapted.

xxxThe meaning thus given to "govtowned or controlled corps." for purposes of the civil service provision

[Art. IX, B, Sec. 2 (1)] should likewise apply for purposes of the TB and SB provisions [Art. XI, Secs. 4 and 12], otherwise, incongruity would result; and a govtowned corp. could create as many subsidiary corps. under the Corp. Code it wishes, w/c would then be free from strict accountability and could escape the liabilities and responsibilities provided by law. xxx

a. Terms, conditions of employment in the Civil Service

(1) Oath of allegiance to the Constitution

Art. IX, B, Sec. 4. All public officers and employees shall take an oath or affirmation to uphold and defend the Constitution.

Art. XI, Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

(2) Merit System

(a) Appointment of lame ducks

Art. IX, B, Sec. 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government, or any governmentowned or controlled corporations or in any of their subsidiaries.

(b) Ban on holding multiple positions

Art. IX, B, Sec. 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries.

Art. VII, Sec. 13. The President, VicePresident, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any

franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries.

Art. VI, Sec. 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

Art. VIII, Secs. 8 (1) (3) and 12

Art. VIII, Sec. 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice, as ex officio Chairman, the Secretary of Justice and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

xxx(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep

a record of its proceedings.

Sec. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasijudicial or administrative functions.

CLU v Executive Secretary, 194 SCRA 317 (1991)

F: The petitioner challenged Ex. Order No. 284 which in effect allowed Cabinet members, their undersecretaries and asst. secretaries and other appointive officials of the Executive Department to hold other positions in the govt., albeit, subject of the limitations imposed therein. The respondents, in refuting the petitioners' argument that the measure was violative of Art. VIII, Sec. 13, invoked Art. IXB, Sec. 7, allowing the holding of multiple positions by the appointive official if allowed by law or by the pressing functions of his positions.

HELD: By ostensibly restricting the no. of positions that Cabinet members, undersecretaries or asst. secretaries may hold in addition to their primary position to not more than 2 positions in the govt. and GOCCs, EO 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of

Art. VIII, Sec. 13 prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. If maximum benefits are to be derived from a dept. head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other govt. offices or employment.

xxxThe stricter prohibition applied to the Pres. and his official family under Sec. 13, Art. VII as compared

to the prohibition applicable to appointive officials in general under Art. IX, B, Sec. 7, par. 2 are proof of the intent of the 1987 Consti. to treat them as a class by itself and to impose upon said class stricter prohibitions.

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the govt during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Consti. itself. xxx

However, the prohibition against holding dual or multiple offices or employment under Art. VII, Sec. 13 must not be construed as applying to posts occupied by the Executive officials specified therein w/o addition compensation in an exofficio capacity as provided by law and as required by the primary functions of said official's office. The reason is that these posts do not comprise "any other office" w/in the contemplation of the constitutional prohibition but are properly an imposition of additional duties and function on said officials. Adapted.

Flores v. Drilon, 223 SCRA 568 (1993)

F: Mayor Richard Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA) under Sec. 13, par (d) of RA 7227 "Bases Conversion and Development Act of 1992.

ISSUE: W/N proviso in Sec 13 par (d) of RA 7227 which states, "Provided, however that for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the constitutional proscription against appointment or designation of elective officials to other government posts.

HELD: YES. Sec 7 of Art IXB of the Consti provides:

"No elective official shall be legible for appointment or designation in any capacity to any public office or position during his tenure."

In the case at bar, the subject proviso directs the President to appoint an elective official, i.e. Mayor of Olongapo City, to other governmental post. Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, 1st par of Art IXB. While the second par. authorizes the holding of multiple offices by an appointive position, there is no exception to the first paragraph except as are particularly recognized in the Constitution itself.

Futhermore, the proviso is a legislative encroachment on appointing authority to only one eligible i.e. the incumbent Mayor of Olongapo City. The conferment of the appointing power is a perfectly valid legislative act but the proviso limiting his choice to one is an encroachment to his prerogative.

Thus, Mayor Gordon is ineligible for appointment throughout his tenure but may resign first from his elective office before he may be considered for appointment. He has a choice.

Sec. 13 par (d) is declared unconstitutional and the appointment of Mayor Gordon is invalid but his previous acts as Chairman of SBMA shall be considered that of a de facto officer. Adapted.

(3) Standardization of pay and ban double compensation

Standardization of pay

Art. IX, B, Sec. 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in governmentowned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions.

Ban on double compensation

Art. IX, B, Sec. 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

Sec. 56. Additional or Double Compensation. No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument, office, or title of any kind from any foreign state.

Pensions or gratuities shall not be considered as additional, double or indirect compensation. (Book V, Title I, Chapter 8, Administrative Code of 1987.)

(4) Ban on partisan political activities

Art. IX, B, Sec. 2. xxx(4) No officer or employee in the civil service shall engage, directly or indirectly, in any

electioneering or partisan political campaign.

Compare with

Art. XVI, Sec. 5. xxx(3) Professionalism in the armed forces and adequate remuneration and benefits of its members

shall be a prime concern of the State. The armed forces shall be insulated from partisan politics.No member of the military shall engage directly or indirectly in any partisan political activity

except to vote.

Cailles v. Bonifacio, 65 Phil 328 (1938)

F: This is a quo warranto petition to oust respondent Bonifacio from the office of Provincial Governor of Laguna. It is contended that at the time he filed his certificate of candidacy and was elected to office, respondent was a Captain in the Philippine Army and for this reason, is ineligible to that office.

HELD: Section 2, Art. XI of the 1935 Const. (similar to the 1987 provision) prohibits members of the Armed Forces from engaging in any partisan political activity or otherwise taking part in any election except to vote, but it does not ex vi termini grant or confer upon them the right of suffrage. As Section 431 of the Election Law, as amended disqualifies from voting only members in the active service of the Philippine Army and no claim is made that this discrimination is violative of the Constitution, it follows that the respondent, being in the reserve force, is not disqualified from voting. The respondent being a qualified elector and the possession by him of the other qualifications prescribed for an elective provincial office not being challenged, he is not ineligible to the office of provincial governor to which he has been elected.

The constitutional provision mentioned contemplates only those in the active service otherwise it would lead to widespread disqualification of the majority of the able bodied men who are part of the reserve corps of the armed forces from voting and from being voted upon.

Raison d' etre for the disqualification: Members of the armed forces are servants of the State and not the agents of any political group. Adapted.

Santos v. Yatco, 59 0G 548 (1959)

F: This is petition for prohibition seeking to enjoin the enforcement of the order of Judge Yatco disallowing then Secretary of Defense Alejo Santos from campaigning personally for Governor Tomas Martin in the province of Bulacan.

The petition was granted for the ff. reasons:

The position of department secretaries is not embraced and included within the terms officers and employees in the Civil Service;

When Santos, a Nacionalista campaigned for Gov. Martin, a candidate of the Nacionalista Party, he was acting as a member of the Cabinet in discussing the issues before the electorate and defending the actuations of the Administration to which he belongs;

The question of impropriety as distinct from illegality of such campaign because of its deleterious influence upon the members of the armed forces, who are administratively subordinated to the Secretary of National Defense and who are often called upon by the COMELEC to aid in the conduct of orderly and impartial elections, is not justiciable by the court. Adapted.

(5) Removal or suspension only for cause

Art. IX, B, 2. xx (3) No officer or employee of the civil service shall be removed or suspended except for cause

provided by law.

De los Santos v Mallare, 87 Phil 289

F: Eduardo de los Santos, petitioner, was appointed City Engineer of Baguio on 7/16/46 by the Pres. He then began the exercise of the duties and functions of the position. On 6/1/50, Gil Mallare was extended an ad interim appointment by the Pres. to the same position, after w/c, on 6/3, the Undersec. of the DPW & Communications directed Santos to report to the Bureau of Public Works for another assignment. Santos refused to vacate the office, and when the City Mayor and the other officials named as Mallare's codefendants ignored him and paid Mallare the salary corresponding to the position, he commenced these proceedings.

HELD: The provision of Sec. 2545 of the Rev. Admin. Code that the Pres. may remove at pleasure any of the said appointive officers is incompatible w/ the constitutional inhibition that "No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." We therefore declare Sec. 2545 of the RAC as repealed by the Consti. and ceased to be operative from the time that instrument came into effect.

For cause as provided by law. The phrase "for cause" in connection w/ removals of public officers has acquired a welldefined concept. "It means for reasons w/c the law and sound public policy recognized as sufficient warrant for removal, that is, legal cause, and not merely causes w/c the appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested w/ the power of removal, or w/o any cause. Moreover, the cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public."

Three specified classes of positions policydetermining, primarily confidential and highly technical are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Consti. xxx

The office of city engineer is neither primarily confidential, policydetermining, nor highly technical. Primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee

for the duties of the office but primarily close intimacy w/c insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.

Policydetermining. Nor is the position of city engineer policydetermining. A city engineer does not formulate a method of action for the govt or any of its subdivisions. His job is to execute policy, not to make it.

Highly technical. Finally, the position of city engineer is technical but not highly so. A city engineer is not required nor is he supposed to posses a technical skill or training in the supreme or superior degree, w/c is the sense in w/c "highly technical" is, we believe, employed in the Consti. RAM.

Corpus v. Cuaderno, 13 SCRA 591 (1965)

F: Mariano Corpus was the Special Assistant to the Governor, In Charge of the Export Department of the Central Bank, a position declared by the President of the Philippines as highly technical in nature. He was administratively charged by several coemployees in the export department with dishonesty, incompetence, neglect of duty and violation of internal regulations of the Central Bank. He was suspended from office while an investigation was being conducted over his complaint. The investigating committee found no basis upon which to recommend him for disciplinary action, hence, recommended that he be immediately reinstated to his office. Despite such recommendation, the Monetary Board approved a resolution dismissing Corpus from Office on the ground that the latter's continuance in office is prejudicial to the best interests of Central Bank. Corpus moved to reconsider said resolution but the same was denied. He filed an action with the RTC which declared the resolution null and void. Central Bank appeals and alleges that officers holding technical positions may be removed at any time for lack of confidence by the appointing power and that such removal is implicit in Sec. 1 Art. XII of the Constitution which provide that : "x x x Appointments in the Civil Service, EXCEPT as to those which are policydetermining, primarily confidential or highly technical in nature, shall be made only according to merit and fitness. " CB also argues that for the three classes of positions referred to in the Constitution, lack of confidence of the one making the appointment constitutes sufficient and legitimate cause of removal.

ISSUE: W/N the removal of Respondent by resolution of the Monetary Board on the ground of loss of confidence was valid despite the fact that the committee which investigated the charges against him found no basis for his removal

HELD: NO. The removal of respondent on the ground of loss of confidence is a clear and evident afterthought resorted to when the charges subject matter of the investigation were not proved or substantiated. It was a mere pretext to cure the inability to substantiate the charges upon which the investigation proceeded. The court therefore dismissed the reason of "loss of confidence" for the dismissal of Corpus. That being so, the constitutional mandate that No officer in the Civil Service shall be removed or suspended except for cause as provided by law must be applied. Persons holding positions which are highly technical in nature must be afforded the Constitutional safeguard requiring removal to be for cause as provided by law, and if the dismissal for "loss of confidence" be allowed, it must have basis in fact, which does not exist in the case at bar. The exemption of the three positions adverted to earlier from the rule requiring APPOINTMENTS to be made on the basis of Merit and fitness DOES NOT EXEMPT such positions from the operation of the rule that no officer in the Civil Service shall be removed except for cause as provided for by law. This rule is absolute, in fact, the CB Charter provided for the same absolute rule. Furthermore, the Civil Service Law which classified Corpus' position as noncompetitive provides that such positions are protected by the Civil Service Law and that his removal must only be for cause recognized by law (Garcia v Exec. Secretary.) While the tenure of officials holding primarily confidential positions ends upon loss of confidence, the tenure of officials holding highly technical posts does not end upon mere loss of confidence. The Consti. clearly distinguished the primarily confidential from the highly technical, and to apply the loss of confidence rule to the latter incumbents is to ignore and erase the differentiation expressly made by our fundamental charter. Officers holding highlytechnical positions hold office on the basis of their special skills and qualifications. The court also said that if mechanics and engineers enjoy security of tenure with more reason should a highly technical officer, as Respondent Corpus, be protected by the Constitutional provision on security of tenure. RAM.

Ingles v. Mutuc, 26 SCRA 171 (1968)

F: Plaintiffs herein are civil service eligibles, holding positions under the Office of the President. About the second week of January, 1962, plaintiffs received a communication from Executive Sec. Mutuc advising them that their services in the government were terminated. They appealed to the President but said appeal was denied. They filed an action against the Exec. Sec. alleging that they had been removed from office without just cause and without due process. Defendant, on the other hand, averred that the positions which plaintiffs were then occupying were primarily confidential in nature and therefore, their appointments were subject to removal at the pleasure of the appointing power.

ISSUE: W/N plaintiffs are occupying positions which are primarily confidential and therefore are subject to removal at the pleasure of the appointing authority.

HELD: NO. The fact that the plaintiffs held office for the "president's Private Office" under subdivision entitled "private secretaries" and that they handled "confidential Matters" even if they only performed clerical work do not make them officers and employees occupying highly confidential offices. There is nothing in the items of the plaintiffs (who were clerks and secretaries) to indicate that their respective positions are "primarily confidential" in nature. The fact that they handled at times "confidential matters" does not suffice to characterize their positions as primarily confidential. No officer or employee in the Civil Service shall be removed or suspended except for cause as provided for by law and since plaintiffs positions were protected by this provision, their removal without cause was therefore illegal. Adapted.

xxx

Officer holding position primarily confidential in nature; Statement in De los Santos v. Mallare declared as mere obiter. The assumption that an officer holding a position w/c is primarily confidential in nature is "subject to removal at the pleasure of the appointing power," is inaccurate. This assumption is evidently based upon a statement in De los Santos v. Mallare to the effect that "three specified classes of positions policydetermining, primarily confidential and highly technical are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Consti. xxx. This was, however, a mere obiter, bec., the office involved in said case that of City Engineer of Baguio did not belong to any of the excepted classes, and, hence, it was not necessary to determine whether its incumbents were removable or not at the pleasure of the appointing power. What is more, said obiter, if detached from the context of the decision of w/c it forms part, would be inconsistent w/ the constitutional command to the effect that "no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law" and it is conceded that one holding in the Govt a primarily confidential position is "in the Civil Service."

Meaning of "term merely expires"; Distinguished from "removal" and "dismissal." When an incumbent of a primarily confidential position holds office at the pleasure of the appointing power, and that pleasure turns into displeasure, the incumbent is not "removed" or "dismissed" from office his term merely "expires," in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for w/c he had been appointed or elected, is not and can not be deemed "removed" or "dismissed" therefrom, upon the expiration of said term. The main difference bet. the former primarily confidential officer and the latter is that the latter's term is fixed or definite, whereas that of the former is not prefixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not "removed" or "dismissed" from office his term merely "expired." RAM.

[NOTE: The Court in this case ruled that the one holding in the government a primarily confidential position is "in the Civil Service" and that "officers in the unclassified as well as those in the classified service" are protected by the provision in the organic law that "no officer shall be removed from office without cause as provided by law". While incumbent of a primarily confidential position holds office at the pleasure only of the appointing power and such pleasure turns into displeasure, the incumbent is not "removed or dismissed" but that his term, merely expires.]

Cristobal v. Melchor, 78 SCRA 175 A Civil Service Employee is Not Barred by Laches if before Bringing Suit He Continuously Pressed His Claim for Reinstatement.

F: Cristobal, a thirdgrade civil service eligible, was employed as a private Secretary in the Office of the President of the Philippines. In January 1962, he and some others were given notice of termination of their services effective January 1, 1962. On March 24, 1962, five of the employees concerned filed an action with the CFI, which culminated in an SC ruling ordering their reinstatement (Ingles v Mutuc). Cristobal, however, was not a party to the case because during the pendency of such case, he sought reinstatement and in fact, the Exec. Secretary and several other Exec. secretaries promised to look for placement for him. After the Supreme Court rendered the decision in the Mutuc case, Cristobal wrote the President requesting reinstatement. This request was denied in five successive letters from the Office of the President, the last letter declared the matter "definitely closed". Cristobal filed an action in the CFI (now RTC) of Manila. The dismissal was based on Rule 66 of the Rules of Court (Quo Warranto) which provides that an action for quo warranto may not be filed unless commenced within one year after the cause of the ouster. Since Cristobal did not bring the action until after the lapse of nine years, his case was barred by laches.

HELD: Cristobal is not guilty of laches. He sought reconsideration of his separation from the service and although he did not join in the Ingles court action, he continued to press his request for reinstatement during the pendency of the case. In fact Secretary Mutuc assured him that he would work for his reinstatement. The continued promise not only of Mutuc but of the subsequent Secretaries led Cristobal to wait but depite waiting for such a long time, his reinstatement never came about. It would be the height of inequity if after Cristobal relied and reposed his faith and trust on the word and promises of the former Exec. Secretaries, the court would rule that he had lost his right to seek relief because of the lapse of time. Cristobal, just like the Plaintiffs in the Ingles v Mutuc case, was not holding an office characterized as "highly confidential", he was performing purely clerical work although he handled "confidential matters" occasionally. He is therefore protected in his tenure and may not be therefore removed without just cause. He is entitled to backwages for five years although he had been dismissed for nine years, applying by analogy the award of backwages in cases of unfair labor practice. Adapted.

(6) Right of SelfOrganization

Art. III, Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Art. IX, B, Sec. 2. xxx

(5) The right to selforganization shall not be denied to government employees.

(not in VV's outline)

Sec. 38. Coverage. (1) All government employees, including those in governmentowned or controlled corporations with original charters, can form, join or assist employees' organizations of their own choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate government authorities, labormanagement committees, work councils and other forms of workers' participation schemes to achieve the same objectives.

(2) The provisions of this Chapter shall not apply to the members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards. (Book V, Title I, Subtitle A, Chapter 6, Administrative Code of 1987.)

Alliance of Government Workers v Minister of Labor, 124 SCRA 1 (1983)

F: supra.

HELD: The dismissal of this petition should not, by any means, be interpreted to imply that workers in govtowned or controlled corporations or in state colleges and universities may not enjoy freedom of association. These workers whom the petitioners purport to represent have the right to form associations or societies for purposes not contrary to law. But they may not join associations w/c impose the obligation to engage in concerted activities in order to get salaries, fringe benefits, and other emoluments higher than or different from those provided by law and regulation.

National Service Corp. v NLRC, 168 SCRA 122 (1988), supra.

TUPAS v NHA, 173 SCRA 33 (1989), supra.

ISSUE: W/N employees of NHC have undoubtedly the right to form unions.

HELD: The right to unionize is now explicitly recognized and granted to both employees in both governmental and the private sectors. There is no impediment to the holding of a certificate of election among the workers of NHC for it is clear that they are covered by the Labor Code, for NHC is a GOCC without an original charter. Statutory implementation of the Consti (par 5 sec 2 art IXB) is found in Art 244 of the Labor Code. Adapted.

(7) Right to strike

SSS Employees Association v CA, 175 SCRA 690 [Public Sector LaborManagement has jurisdiction of

dispute concerning terms and conditions (of employment) but not damages arising from acts of a union.]

F: SSS filed w/ the RTCQC a complaint for damages w/ a prayer for a writ of prel inj. against petitioners SSSEA, alleging that the officers and members of the latter staged an illegal strike and barricaded the entrances to the SSS building preventing nonstriking employees from reporting to work and SSS members from transacting business w/ SSS. The Public Sector LaborManagement Council ordered the strikers to return to work but the strikers refused to do so. The SSSEA went on strike bec. SSS failed to act on the union's demands.

Petitioners filed a motion to dismiss the complaint for lack of jurisdiction, w/c motion was denied. The restraining order w/c was previously issued was converted into an injunction after finding the strike illegal. Petitioners appealed the case to the CA. The latter held that since the employees of SSS are govt employees, they are not allowed to strike.

HELD: Employees in the Civil Service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, in order to pressure the Govt. to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Govt. EEs to SelfOrganization which took effect after the initial dispute arose, the terms and conditions of employment in the Govt, including any political subdivision or instrumentality thereof and govt. owned and controlled corporations with original charters, are governed by law and employees therein shall not strike for the purpose of securing changes thereof.

The statement of the court in Alliance of Govt Workers v. Minister of Labor and Employment (124 SCRA 1) is relevant as it furnishes the rationale for distinguishing bet. workers in the private sector and govt employees w/ regard to the right to strike?

Since the terms and conditions of govt. employment are fixed by law, govt. workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion of law. Relations bet. private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In govt employment, however, it is the legislature and, where properly given delegated power, the administrative heads of govt w/c fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through CBA's.

EO 180, w/c provides guidelines for the exercise of the right to organize of govt employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law.

Govt employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are w/in the ambit of legislation or negotiate w/ the appropriate govt agencies for the improvement of those w/ are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector LaborManagement Council for appropriate action. RAM.

Issue: W/N the RTC can enjoin the SSSEA from striking.

Held: Yes. EO 180 vests the Public Sector LaborManagement Council with jurisdiction over unresolved labor

disputes involving government employees. Clearly, the NLRC has no jurisdiction over the dispute. The RTC was not precluded, in the exercise of its general jurisdiction under BP 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the PSLM Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council and the NLRC that has jurisdiction over the instant labor dispute, resort to general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate. Adapted.

Manila Public School Teachers Association v. Laguio, 200 SCRA 323 (1991)

F: On September 17,1990, Monday, at least 800 public school teachers proceeded to the national office of the DECS and aired their grievances. The mass action continued into the week despite the DECS Secretary's RETURN TO WORK order. The Secretary filed administrative charges against the protesting teachers. The Secretary rendered the questioned decisions in the administrative proceeding. He dismissed some teachers and placed others in under suspension. Two separate petitions were filed to assail the validity of the return to work order and his decisions in the administrative proceeding.

ISSUE: WHETHER OR NOT THE MASS ACTIONS ARE CONSIDERED AS STRIKES?

HELD: Yes. The mass actions constituted a concerted and unauthorized stoppage of, or absence from work, which it was the teachers' duty to perform, undertaken for essentially economic reasons.

ISSUE: WHETHER OR NOT PUBLIC SCHOOL TEACHERS CAN STRIKE?

HELD: No. Employees of the public service do not have the right to strike although they have the right to self organization and negotiate with appropriate government agencies for the improvement of working conditions.

ISSUE: WHETHER OR NOT DUE PROCESS WAS OBSERVED DURING THE ADMINISTRATIVE PROCEEDINGS?

HELD: This court is a court of last resort. It resolves questions of law where there is no dispute of the facts or that the facts have been already determined by the lower tribunals. It is not a trier of facts. It can not resolve the issue which requires the establishment of some facts. The remedy is for the petitioners to participate in the administrative proceedings. If they lost, they may appeal to the Civil Service Commission. If pending said administrative proceedings, immediate recourse to judicial authority was believed necessary, recourse is with the RTC where there would be opportunity to prove relevant facts. Adapted.

9. Review of the decisions of the CSC

Art. IX, A, Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or

memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

BARLONGAY CASES:

Dario v. Mison, 176 SCRA 84 (1989)

Manalansang v. CSC, , 203 SCRA 797 (1991)

F: This is a resolution of the Court en banc denying petitioner's second motion for reconsideration. The Court wishes, however, to devote a few words to one issue raised by the petitioner w/c appears of sufficient importance to merit separate treatment and disposition: that concerning the effect of the filing of a motion for reconsideration of a decision, or final order or resolution of the CSC on the 30day period prescribed for taking an appeal therefrom. Adapted.

HELD: The Court holds that the thirty day period prescribed by Sec. 7, Part A, Art. IX of the Consti. shall be interrupted from the time a motion for reconsideration is timely and properly filed until notice of the order overruling the motion shall have been served upon the accused or his counsel. In other words, in computing the period of appeal from the CSC, the time during w/c a motion for reconsider or set aside its judgment, order or resolution has been pending shall be deducted, unless such motion fails the requirements set therefor. RAM.

Mancita v. Barcinas, 216 SCRA 772 (1992)

F: On 10/15/90, Mayor Divinigracia, Jr., who had succeeded Mayor Prila, informed pvt. resp. Nacario that her services as MPDC would be terminated effective 11/16/90 to pave the way for the reinstatement of petitioner (w/c CSC ordered.)

xxx Meanwhile, on 11/8/90, pvt. resp. Nacario filed w/ the RTC of Pili, Camarines Sur, a petition for declaratory relief

and prohibition w/ prel. inj. against CSC xxxAs prayed for by the petitioner (now pvt. resp. Nacario), the resp. Judge issued on the same day a temporary

restraining order and set the hearing of the application for a writ of prel. inj. on 11/22/90. Petitioner filed a motion to dismiss the petition on the ground that the court a quo has no jurisdiction to rule, pass upon or review a final judgment, order or decision of the CSC. On 2/25/91, resp. Judge issued an order denying the motion. MFR was also denied Hence, this petition for certiorari.

HELD: The CSC, under the Consti., is the single arbiter of all contests relating to the civil service and as such, its judgments are unappealable and subject only to this Court's certiorari jurisdiction. (Lopez v. CSC, et. al, 195 SCRA 777.) Since the decision, order, or ruling of the CSC is subject to review only by this Court on certiorari under Rule 65, ROC, the RTC has no jurisdiction over the civil case, an action w/c seeks a review of a decision of the CSC. RAM.

10. Fiscal Autonomy

Art. IX, A, Sec. 5. The Commissions shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.

Approval of appointments by the CSC

BARLONGAY CASES:

Barrozo v. CSC, 198 SCRA 487

F: On 11/10/88, David Borja retired as City Engineer of Baguio. At that time, petitioner Teodoro Barrozo was a Senior Civil Engineer of DPWH assigned to the office of the City Engineer of Baguio and resp. V. Julian was the Asst. City Engineer of Baguio. On 12/27/88, Mayor Labo extended to Barrozo a permanent appointment as City Engineer of Baguio. On 2/16/89, after his protest was rejected by Mayor Labo, pvt. resp. Julian appealed to the MSPB of the CSC, claiming that as a qualified nextinrank officer, he had a preemptive right over Barrozo. The CSC Cordillera Admin. Region, to w/c the appeal was referred, declared Barrozo's appointment void for being violative of Civil Service promotion rules. MFR was denied. CSC, on appeal, affirmed the decision. Adapted.

HELD: The CSC has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other officers except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the CSC. It cannot disallow an appointment bec. it believes another person is better qualified and mush less can it direct the appointment of its own choice.

xxxThe law does not absolutely require that the person who is next in rank shall be promoted to fill a

vacancy. In fact, the vacancy may be filled not only by promotion but "by transfer of present employees in the govt service, by reinstatement, by reemployment of persons separated through reduction in force, or by appointment of persons w/ the civil service eligibility appropriate to the position. What the Civil Service Act provides is that if a vacancy is filled by promotion, the person holding that position nextinrank thereto "shall be considered for promotion."

xxxOne who is next in rank is entitled to preferential consideration for promotion to the higher vacancy but

it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. RAM.

B. COMMISSION ON ELECTIONS

1. Composition and qualifications of Commissioners

Art. IX, C, Sec. 1. (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirtyfive years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.

Art. VII, Sec. 13. xxxThe spouse and relatives by consanguinity or affinity within the fourth civil degree of the

President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries.

Cayetano v. Monsod, 201 SCRA 210

F: Monsod was nominated by President Aquino as Chairman of the Comelec. The Commission on Appointments confirmed the appointment despite Cayetano's objection, based on Monsod's alleged lack of the required qualification of 10 year law practice. Cayetano filed this certiorari and prohibition.

ISSUE: W/N MONSOD HAS BEEN ENGAGED IN THE PRACTICE OF LAW FOR 1O YEARS?

HELD: YES. The practice of law is not limited to the conduct of cases or litigation in court. It embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients, and other works where the work done involves the determination of the trained legal mind of the legal effect of facts and conditions (PLA vs. Agrava.)

The records of the 1986 constitutional commission show that the interpretation of the term practice of law was liberal as to consider lawyers employed in the Commission of Audit as engaged in the practice of law provided that they use their legal knowledge or talent in their respective work.

The court also cited an article in the January 11, 1989 issue of the Business Star, that lawyers nowadays have their own specialized fields such as tax lawyers, prosecutors, etc., that because of the demands of their specialization, lawyers engage in other works or functions to meet them. These days, for example, most corporation lawyers are involved in management policy formulation.

Therefore, Monsod, who passed the bar in 1960, worked with the World Bank Group from 19631970, then worked for an investment bank till 1986, became member of the CONCOM in 1986, and also became a member of the Davide Commission in 1990, can be considered to have been engaged in the practice of law as lawyereconomist, lawyermanager, lawyerentrepreneur, etc.

ISSUE: W/N THE COMMISSION ON APPOINTMENTS COMMITTED GRAVE ABUSE OF DISCRETION IN CONFIRMING MONSOD'S APPOINTMENT?

HELD: NO. The power of the COA to give consent to the nomination of the Comelec Chairman by the

president is mandated by the constitution. The power of appointment is essentially within the discretion of whom it is so vested subject to the only condition that the appointee should possess the qualification required by law. From the evidence, there is no occasion for the SC to exercise its corrective power since there is no such grave abuse of discretion on the part of the CA. Adapted.

2. Appointment and term of office of Commissioners; Rule against reappointment

Art. IX, C, Sec. 1. xxx(2) The Chairman and the Commissioners shall be appointed by the President with the consent of

the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Nacionalista Party v. Angelo Bautista, 85 PHIL 103 (1949)

F: President Quirino designated the SolicitorGeneral as Acting member of the Comelec in November, 1949. The Nacionalista Party filed this prohibition on the following grounds: (1) the SG did not resign from the office of the SolicitorGeneral; (2) there is no vacancy in the Comelec because the retirement of the Comelec member causing the vacancy, was accepted by the President in bad faith; and (3) the functions of a SolicitorGeneral are incompatible with those of a Comelec member.

ISSUE: W/N THE DESIGNATION WAS VALID?

HELD: NO, it was not. By the nature of the Comelec's functions, the Comelec must be independent. Members are not allowed to perform other functions, powers and duties to preserve its impartiality. The SolicitorGeneral's duties also require an undivided time and attention for efficiency. Furthermore, when there is a vacancy, appointment is preferred to designation.

ISSUE: W/N PROHIBITION WOULD LIE?

HELD: NO. The case is by nature a quo warranto proceeding because it questions the legality of the respondent's designation or his right to office. The proceeding is instituted by the other party claiming the position occupied and/or the SolicitorGeneral. Prohibition however, has a different purpose, which is to prevent the usurpation of jurisdiction by a subordinate court.

Although there is no other party who claims a right over the position occupied nor will the SG file a case against himself, the court must grant the remedy of a quo warranto proceeding because the SG's continued

occupancy as member of the Comelec is illegal. Adapted.

Brillantes v. Yorac, 192 SCRA 358 (DEC. 18, 1990)

F: Associate Commissioner Haydee Yorac was appointed by Pres. Aquino as Acting Chairman of the Commission on Elections, in place of Chairman Hilario Davide, who had been named chairman of the factfinding commission to investigate the Dec. 1989 coup d'état attempt.

ISSUE: WON the appointment is unconstitutional

HELD: NO. Art. IXA, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent". Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. Each of these Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to review on certiorari by the SC as provided by the Constitution in Art. IXA, Section 7. The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exercised for it, even with its consent, by the President of the Philippines. Adapted.

NP v. Vera, 85 Phil 149

F: This is an action brought by the Nacionalista Party against De Vera on the ground that his appointment as Chairman of the COMELEC is a violation of the Constitution particularly Art. X, Sec. 1 of the 1935 Constitution which provides that the members of the COMELEC shall hold office for nine years without reappointment.

Held: The prohibition against reappointment comes as a continuation of the requirement that the Commission shall hold office for a term of nine years. Reappointment is not prohibited provided his term will not exceed nine years in all.

In July 1945, three Commissioners were appointed. De Vera was appointed for three years. If he were to succeed himself, he cannot be reappointed to do so because that would preclude the appointment of a new member after 3 years and would furthermore increase his term to 12 years since upon the expiration of his term, his successor must be appointed for nine years.

But in this case, de Vera's appointment was by virtue of the death of the Chairman in 1947 and he was promoted to occupy the chairmanship of the Commission for the unexpired term only. Thus, this is not offensive to the Constitution because it does not increase de Vera's term of office to more than nine years nor does it preclude the appointment of a new member upon the expiration of the first term of three years. Adapted.

Republic v. Imperial, 96 Phil 770

F: This is a quo warranto proceeding to test the legality of the continuance in office of Imperial as Chairman and Perez as member of COMELEC.

When Chairman de Vera died in August 1951, before the expiration of the maximum term of nine years of the

Chairman of the Commission, Imperial was appointed Chairman to succeed de Vera. His appointment provided for a term expiring July 12, 1960. The SG contended that the term for which he will legally serve as Chairman legally expired on July 12, 1954, the expiration of the 9 year term for which the first Chairman was appointed.

Comelec member Perez on the other hand, was appointed for a term of 9 years expiring on 24 November 1958. The SG contended that his term legally expired on July 12, 1951, the expiration of the term of 6 years for which Commissioner Enage, his predecessor was appointed.

Held: The terms cannot begin from the first appointments made in July 12, 1945 but from the date of the organization of the COMELEC under CA 657 on June 21, 1941. Thus, the term of office of the first Chairman, Lopez Vito began on June 21, 1941 and ended June 20, 1950. That of member Enage began on June 21, 1941 to June 20, 1944 (but this was not filled). Since the first 3 year term had already expired in 1944, the appointment of De Vera on June 12, 1945 must be for the full term of nine years (June 1944 to June 1953). The first vacancy occurred by the expiration of the term of Enage. His successor, Perez, was named for a full 9 year term which shall have started on June 1947 to June 1956.

The second vacancy happened upon the death of Lopez Vito on May 1947. To succeed him, de Vera appointed and lasted only up to June 1950, the unexpired period of Lopez Vito's term. Thus, on June 1950, a vacancy occurred which De Vera could no longer fill because his appointment was expressly prohibited by the Constitution. Thus, the next Chairman was respondent Imperial whose term of 9 years must be deemed to have began on June 21, 1990 to expire on June 20, 1959. Adapted.

3. Appointment of personnel


4. Salary


Art. XVIII, Sec. 17. Until the Congress provides otherwise x x x the Chairmen of the Constitutional Commissions (shall receive), two hundred four thousand pesos each; and the Members of the Constitutional Commissions, one hundred eighty thousand pesos each.

The salary, of course, can be increased and the increase can take effect at once, since, like the Judiciary, the Constitutional Commissions have not part in the passage of such a law.



No members of a Constitutional Commission shall during his "tenure" : (IX, V, 2)




c. Engage in the active management or control of any business which in any way may be affected by the functions of his office.


6. Impeachment

Art. XI, Sec. 2. The members of the Constitutional Commissions may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption and other high crimes, or betrayal of public trust.

7. Powers and functions of the COMELEC

The Commission on Elections shall exercise the following powers and functions:

a. Enforce election laws

Art. IX, C, Sec. 2. (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

Sanchez v. COMELEC, 114 SCRA 454

F: Sanchez, a mayoralty candidate, who lost in the 1980 San Fernando, Pampanga elections, filed with the Comelec a petition to nullify the said elections due to large scale terrorism, which took place after the people had cast their votes. The Comelec, after hearing, issued the resolution which ordered the nullification of the elections and the certification of the failure of elections to the president or prime minister for remedial legislation and the appointment of municipal officials. The winning mayoralty candidate questioned the validity of the resolution.

ISSUE: W/N THE COMELEC HAS THE POWER TO NULLIFY ELECTIONS ON THE GROUND OF POST ELECTION TERRORISM?

HELD: YES, it has. The Comelec is now the sole judge of all contests relating to the elections, returns and qualifications of all members of the Batasang Pambansa, elective provincial and city officials. In line with its duty to protect and preserve the integrity of the elections, the Comelec must be deemed possessed of the authority to annul elections where the will of the voters has been defeated and the purity of elections sullied. The fact that the failure of elections was due to terrorism after the votes were cast is not material.

ISSUE: W/N THE COMELEC HAS THE POWER TO CALL SPECIAL ELECTIONS?

HELD: YES. The Comelec, being the sole judge of elections, returns and qualifications, has the power to call special elections. During the time the Comelec was not the sole judge, the president, upon certification to him by the Comelec of a failure of elections, had the power to call special elections. The Comelec has the duty to take necessary steps to complete the elections, that is, to see to it that the real winners are proclaimed. But when the winners cannot be determined from the elections, which was marred by massive and pervasive terrorism, the Comelec must call for a special election in order to proclaim the real winners. Adapted.

b. Decide administrative questions pertaining to election except the right to vote

Art. IX, C, Sec. 2. xxx(3) Decide, except those involving the right to vote, all questions affecting elections, including

determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

c. Petition for inclusion or exclusion of voters

Art. IX, C, Sec. 2. xxx(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or

exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices.

Omnibus Election Code

Right to Vote

The right to vote may be challenged in the MTC by:

a) a proceeding challenging the right of a voter to be registered;b) an action instituted by a voter for reinstatement;c) proceeding filed by an individual to exclude any voter whose name appears in the list of voters.

There are dates which the law allots for the registration of voters. Any person, under 136, during this period may challenge the registration of voters on the grounds of the qualifications and disqualifications in the exercise of the right of suffrage.

Qualifications (Articles 5, 117)a) Filipino citizenb) 18 years oldc) Resident of the Phils., for one year and of the municipality where he proposes to vote for 6 months.

Disqualifications (Art. 118)

a) Those convicted by final judgment and have been sentenced to imprisonment for at least one year and such disqualifications has not been removed by absolute pardon or amnesty. This disqualification lasts for 5 years unless restored by absolute pardon or amnesty. (Cristobal v Labrador)b) Those convicted of crimes involving the national security, or disloyalty to the government, rebellion, sedition, subversion, etc.c) Insanity or incompetency

Inclusion Proceedings

If the Board of Registration cancels the name of a voter, he can file in the MTC a petition for an order to include his name in the list of voters or to reinstate him. Action must be filed within 20 days form the last day of registration. Appeal can be made to the RTC within 5 days, and the decision shall be final and unappealable and no motion for reconsideration shall be allowed.

Exclusion Proceedings (Articles 138, 139, 142)

A petition for exclusion must be filed with the MTC within 20 days from the last day of registration.

d. Prosecute election law violators

Art. IX, C, Sec. 2. xxx(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or

exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices.

BP Blg. 881, Sec. 265

Sec. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing the complaint, he may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.

EO 134, Sec. 11, February 27, 1987

Sec. 11. Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper investigations and prosecution, if warranted.

The Commission may avail of the assistance of other prosecuting arms of the government.

De Jesus v. People, 120 SCRA 760

In De Jesus v People, 120 SCRA 760 (1983), it was ruled that a government official (COMELEC Registrar) who violated the election law ( tampering with returns to make it appear that there were more registered voters) must be prosecuted by the COMELEC, before the RTC, not the Sandiganbayan. The 1978 Election Code is clear that the COMELEC shall have the power to conduct preliminary investigations of all election offenses, and that the RTC has exclusive original jurisdiction to try and decide such cases. It is not the character or personality of the offender (public official) but the crime committed (violation of election law) that determines jurisdiction. This provision of the 1978 Election Code has been integrated in the 1987 Constitution. Adapted.

Corpuz v. Tanodbayan, 149 SCRA 281

F: The complaint for electioneering against the Director of Trade et. al., filed before the Comelec was withdrawn and later on refiled with the Tanodbayan. The Comelec Legal Assistance Office moved to enter its appearance for the complainants. The Tanodbayan denied the motion on the ground that it has exclusive authority to prosecute the election offenses of public officials.

ISSUE: WHETHER OR NOT THE TANODBAYAN HAS EXCLUSIVE AUTHORITY TO PROSECUTE ELECTION OFFENSES?

HELD: NO. There is no constitutional provision granting the Tanodbayan, either explicitly or implicitly, authority to prosecute, investigate and hear election offenses. Instead the constitution granted such power exclusively to the Comelec in order to insure a free, orderly and honest elections. It is the nature of the offense that determines the exclusive jurisdiction of the Comelec regardless of who the offender is, whether a private individual or a public officer. Adapted.

People v. Basilia, 179 SCRA 87

F: Three complaints were filed with the provincial fiscal alleging violations of the Omnibus Election Code. After conducting preliminary investigation, the fiscal filed the information with the RTC. The judge, motu proprio, dismissed the information on the ground that the Comelec has the exclusive authority to conduct preliminary investigation and prosecute election offenses. Hence this review.

ISSUE: W/N FISCALS MAY CONDUCT PRELIMINARY INVESTIGATIONS AND PROSECUTE ELECTION OFFENSES?

HELD: YES, they may. Although the Comelec is granted the exclusive authority to conduct preliminary investigation and prosecute election offenses, it is also authorized by the Omnibus Election Code to avail itself of the assistance of other prosecuting arms of government. To ensure credible elections, the Comelec may deputize law enforcement agencies and instrumentalities, whether before or after elections. Pursuant to such authority granted by law, the Comelec issued Resolution no 1862 providing that fiscals may conduct preliminary investigations and prosecute election offenses. Adapted.

People v. Inting, 187 SCRA 788(1990)

*EN BANC

F: In 1988, Mrs. Barba filed a letter complaint against OIC Mayor Regalado of Tanjay, Negros Or. with the COMELEC, for allegedly transferring her, a permanent Nursing Attendant, in the office of the Mayor to a very remote barangay and without obtaining prior permission or clearance from the COMELEC as required by law. The COMELEC directed the Provincial Election Supervisor of Dumaguete City (Atty. Lituanas) to, among others, conduct the preliminary investigation of the case. Said directive was pursuant to a COMELEC resolution which in turn, is based on the constitutional mandate that the COMELEC is charged with the enforcement and administration of all laws relative to the conduct of elections. After a preliminary investigation, Atty. Lituanas found a prima facie case. Hence, he filed with the respondent RTC of Dumaguete City a criminal case against the OICMayor. The RTC issued a warrant of arrest against the accused which was later cancelled on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Sec. 2, Art. III of the 1987 Constitution. The court stated that it "will give due course to the information filed if the same has the written approval of the Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." Atty. Lituanas failed to comply with the condition. Hence the RTC quashed the information. A motion for reconsideration was denied. Hence, this petition.

ISSUE: W/N a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the Provincial Fiscal, before the RTC may take cognizance of the investigation and determine whether or not probable cause exists.

HELD: NO. The Court emphasizes the important features of the constitutional mandate that "xxx no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge xxx." (Art. III, Sec. 2, Constitution) First, the determination of probable cause is a function of the Judge. It is not for the Prov'l Fiscal nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the judge. It merely assists him to make the determination of probable cause. The judge does not have to follow what the Prosecutor presents to him. It is the report, the affidavits, the transcripts of stenographic notes, and all other suppporting documents behind the Prosecutor's certification w/c are material in assisting the judge to make his determination. Third, judges and prosecutors alike should distinguish the preliminary inquiry w/c determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the judge. The preliminary investigation properwhether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore whether or not he should be subjected to trialis the function of the prosecutor. Article IXC, Sec. 2 of the Constitution provides: "Sec. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. xxx xxx xxxx (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of votes, investigate and, where appropriate, prosecute cases of violation of election laws, including acts or omission constituting election frauds, offenses, and malpractices."

In effect, the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the judge determine probable cause and for filing an information in court. This power is exclusive with the COMELEC. Hence, the Prov'l Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal files an information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his office. It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that Sec. 2, Art. III of the 1987 Constitution comes in. This is so, because, when the application for a warrant of arrest is made and the information is filed with the court, the judge will then determine whether or not a probable cause exists for the issuance of a warrant of arrest. Adapted.

People v. Delgado, 189 SCRA 715 (1990)

F: Upon recommendation of the provincial election supervisor, who conducted a preliminary investigation of the alleged election offenses of Delgado, et. al, the Comelec filed an information against the latter. The respondents moved for reconsideration and the suspension of the warrants of arrests on the ground that no preliminary investigation was conducted. The trial court ordered for reinvestigation. The Comelec opposed the order on the ground that only the SC may review the decisions, orders, resolutions of the Comelec. The trial court denied the Comelec motion. Hence this certiorari.

ISSUE: W/N THE COMELEC ACTION MAY BE REVIEWED ONLY ON CERTIORARI BY THE SC?

HELD: NO. According to the constitution, the Comelec has the following functions: (1) enforcement of election laws; (2) decision of election contests; (3) decision of administrative questions; (4) deputizing law enforcement agencies; (5) registration of political parties; and (6) improvement of elections. What are reviewable on certiorari by the SC are those orders, decisions, etc., rendered in actions or proceedings before the Comelec in the exercise of its adjudicatory or quasijudicial powers. Thus decisions of the Comelec on election contests or on administrative questions are subject to judicial review only by the SC. In this case, no Comelec adjudicatory power is exercised. As a public prosecutor, the Comelec has the exclusive authority to conduct preliminary investigation and prosecute offenses punishable under the election code before the competent court. But when the Comelec files the information, the subsequent disposition of the case is subject to the court's approval. The Comelec can't conduct reinvestigation unless so ordered by that court nor refuse its order of reinvestigation. Adapted.

e. Recommend pardon, amnesty, parole or suspension of sentence of election law violators

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

f. Deputize law enforcement agents and recommend their removal

Art. IX, C, Sec. 2. xxx(4) Deputize, with the concurrence of the President, law enforcement agencies and

instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

xxx(8) Recommend to the President the removal of any officer or employee it has deputized, or the

imposition of any other disciplinary action, for violation or disregard, or disobedience to its directive, order or decision.

xxx

g. Registration of political parties, organizations and coalitions and ACCREDITATION of citizens' arms

Art. IX, C, Sec. 2. xxx(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in

addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration.

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

The following shall not be registered:

a. Religious denominations and sects.b. Those seeking to achieve their goals through violence or unlawful means.c. Those refusing to uphold and adhere to this Constitution.d. Those which are supported by any foreign government. Financial contributions from foreign

government and their agencies to political parties or candidates related to elections constitute "interference in national affairs," and when accepted, shall be an additional ground for cancellation of registration, in addition to other penalties the law may prescribe.

Art. IX, C, Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the partylist system as provided in this Constitution.

Art. IX, C, Sec. 8. Political parties, or organizations or coalitions registered under the partylist systems, shall not be presented in the voters' registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law.

Art. VI, Sec. 5. xxx(2) The partylist representatives shall constitute twenty per centum of the total number of

representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, onehalf of the seats allocated to the partylist representatives shall be filled, as provided bylaw, by selection or election from labor, peasant, urban poor, indigenous cultural communities, women,

youth, and such other sectors as may be provided by law, except the religious sector.

Art. XVIII, Sec. 7. Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seats reserved for sectoral representation in paragraph 2, Section 5 of Article VI of the Constitution.

h. Regulation of public utilities and media of information

Art. IX, C, Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment of utilization of all franchises or permits for the operation or transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any governmentowned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

Such supervision or regulation shall aim to ensure (i) equal opportunity, time and space, (ii) the right to reply, including reasonable equal rates therefor, for public information campaigns and from among candidates, in connection with the object of holding free, orderly, honest, peaceful and credible elections.

National Press Club V. COMELEC, 176 SCRA 84

F: Petitioners herein were representatives of mass media which were prevented from selling and donating space or air time for political advertisements under RA 6646.

ISSUE: Whether or not RA 6646 constitutes a violation of the constitutional right to freedom of expression.

RULING: NO. The Comelec has been expressly authorized by the Constitution to supervise or regulate the enjoyment or utilization of the franchises or permits for the operation of media of communication and information. The fundamental purposes of such power are to ensure "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with "public information campaigns and forums amoong candidates." Of course, the law limits the right of free speech and of access to mass media of the candidates themselves. The limitation however, bears a clear and reasonable connection with the objective set out in the Constitution. For it is precisely in the unlimited purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to make a crucial difference. Charo.

Adiong v. COMELEC, 207 SCRA 712

F: Petitoner, Adiong, a 1992 senatorial candidate, assails Comelec Resolution No. 2347 insofar as it prohibits the posting of decals and stickers on mobile places, public or private, and limits their location or publication to authorized postiing areas.

ISSUE: Whether or not the resolution is constitutional.

RULING: NO. The prohibition unduly infringes on the citizen's fundamental right of free speech. There is no public interest substantial enough to warrant the kind of restriction involved in this case. The posting of decals amd stickers in mobile places does not endanger any substantial government or public interest. Under the clear and present danger rule, not only must the danger be patently clear and pressingly present but the evil sought to be avoided, must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled. Significantly, the freedom of expression curtailed by the prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehichle, the expression becomes a statement by the owner, primarily his own and not of anybody else. Morever, The restriction is so broad that it encompasses even the citizen's private property, which in this case is a privately owned vehicle. In consequence of this prohibition, another cardinal right guaranteed under the Constitution is violated which is that no person shall be deprived of his property without due proocess of law. Charo.

Art. IX, C, Sec. 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter.

i. Decide election contests

Art. IX, C, Sec. 2. xxx (2) 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

all 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 involvingelective municipal and barangay offices shall be final, executory, and not appealable.

Art. IX, C, Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedures in order to expedite disposition of election cases, including pre

proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

RA 7166, Sec. 22

Sec. 22. Election Contests for Municipal Offices. All election contests involving municipal offices with the Regional Trial Court shall be decided expeditiously. The decision may be appealed to the Commission within five (5) days from promulgation or receipt of a copy thereof by the aggrieved party. The Commission shall decide the appeal within sixty (60) days after it is submitted for decision, but not later than six (6) months after the filing of the appeal, which decision shall be final, unappealable, and executory.

"Contests"

Prior to the proclamation of the winning candidate, the case is deemed to be still in its administrative stage, and so is to be resolved by the COMELEC under its power to administer all election laws, and not under its authority as the sole judge of election contests. Only after a winner has been proclaimed can there be a "contest", with a contestant who seeks not only to oust the intruder but also to have himself installed into office.

Under the Omnibus Election Code (OEC), a preproclamation controversy concerns the regularity of proceedings of a board of canvassers. It includes the questions of: i) the legality of the composition of the Board of Canvassers, and ii) questions of fraudulent election returns.

Candidates for public office usually grab the proclamation to be able to take the office, and thus anyone filing an electoral contest against the person would now find himself at a disadvantage because his opponent is now enjoying the power of the office. (Lagumbay v COMELEC). Thus, the purpose of a pre proclamation contest is to prevent the proclamation of his opponent.

i. Municipal original with the RTC; appeal to the COMELEC

II. Barangay original with inferior court; appeal to COMELEC

Javier v. COMELEC, 144 SCRA 194 (1986) Under the 1973 Constitution, even PreProclamation Controversies Involving Members of the Batasang Pambansa Must be Decided by the COMELEC en banc.

F: Petitioner Evelio Javier filed a petition for certiorari to annul a decision of the COMELEC's Second Division proclaiming Arturo Pacificador elected member of the BP representing Antique Province. He contended that under the 1973 Consti., all contests, involving members of the BP, must be decided by the COMELEC en banc.

Art. XII, C, Sec. 2 (2) of the 1973 Consti. provided that the COMELEC "(shall) be the sole judge of all contests relating to the election, returns and qualifications of all members of the BP and elective provincial and city officials." Sec. 3, on the other hand, provided that "All election cases may be heard and decided by divisions except contests involving members of the BP, w/c shall be heard and decided en banc." The former Sol.Gen. argued that the controversy in this case is still in the admin. stage and so is to be resolved by the COMELEC under its power to administer all election laws, not under its authority as sole judge of election contests, bec. until one of the candidates was proclaimed, there could be no contest, in w/c the contestant seeks not only to oust the intruder but also to have himself inducted into office. On the other hand, the new SolGen sought the dismissal of the case as moot and academic on the ground that the petitioner had been killed apparently for political reason and that the BP had been abolished after the Feb. 1986 Revolution.

HELD: xxx(2) It is worth observing that the special procedure for the settlement of what are now called "pre

proclamation controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through the 1978 Election Code. Bef. that time, all proceedings affecting the election, returns and qualifications of public officers came under the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth charter was imposed, to divide the electoral process into the preproclamation stage and the postproclamation stage and to provide for a separate jurisdiction for each stage, considering the first admin. and the second juridical.

Contests. The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Consti. should be interpreted liberally. As employed in the 1973 Consti., the term should be understood as referring to any matter involving the title or claim of title to an elective office, made bef. or after proclamation of the winner, whether or not the contestant is claiming the office in dispute.

Elections, returns and qualifications. The phrase "elections, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that election refers to the conduct of the polls, including the listing of voters, holding of electoral campaign, and casting and counting of votes. "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns; and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty, or ineligibility, or the inadequacy of his certificate of candidacy.

As correctly observed by the petitioner, the purpose of Sec. 3 in requiring that cases involving members of the BP be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are only too familiar w/ the "grabtheproclamationanddelaythe protest" strategy in the frustration of the popular will and the virtual defeat of the real winners in the election. VV.

The jurisdiction of the COMELEC as the judge of election contests involving the election, returns, and qualifications of elective officials has been bee restricted to elective local officials under the 1987 Constitution. The judge in the Presidential Election, as noted, is the SC acting as Electoral Tribunal. The judge in the

Congressional elections, is the respective Electoral Tribunal of the Senate and House of Representatives.

Pimentel v. COMELEC, 101 SCRA 769 (1986)

*EN BANC

F: Herein petitioners are the contestants while herein private respondents are the contestees in 3 election cases pending before the CFI of Quirino. Petitioners allege in their election protests that they were duly certified candidates for mayor, vicemayor and members of the Sangguniang Bayan of Diffun, Quirino, in the general elections of January 30, 1980, but they were not considered as such by the Municipal Board of Canvassers who did not count the votes cast in their favor and proceeded instead to proclaim the private respondents as the duly elected officials of Diffun. The private respondents filed their opposition to such protests. They also filed a "Joint Motion to Limit Reception of Evidence Pursuant to Material Allegations in the Protests," which was denied. Accordingly, the CFI ordered the opening of the ballot boxes and the counting of the votes as reflected in the ballots and not in the election returns. Private respondents filed w/ the COMELEC a petition for certiorari and prohibition with preliminary injunction seeking to restrain the CFI from enforcing its orders. The COMELEC, on May 25,1980, issued a resolution restraining the CFI from enforcing its order. Consequently, the CFI issued an order pursuant to the COMELEC's resolution. Thus, petitioners filed this present petition for certiorari and prohibition w/ preliminary mandatory injunction seeking to annul the said COMELEC's resolution. Petitioners allege, among others, that the COMELEC has no jurisdiction to take cognizance of the petition for certiorari and prohibition filed by the private respondents questioning an interlocutory order issued by the CFI, much less to restrain said court from enforcing said order. On the other hand, private respondents contend that the COMELEC has jurisdiction over the petition for certiorari, prohibition and mandamus involving election cases as supported by the following: that the 1978 Election Code grants the COMELEC the power to "prescribe the rules to govern the procedure and other matters relating to election contests"; that under Sec. 4, Rule 65 of the ROC, petitions for certiorari, prohibition and mandamus "may also be filed with the Court of Appeals if it is in aid of its appellate jurisdiction"; that since the COMELEC exercises appellate jurisdiction over election cases filed w/ the CFI involving municipal offices, pursuant to the 1978 Election Code, said Commission is thus vested w/ jurisdiction over petitions for certiorari, prohibition and mandamus, applying by analogy the quoted provision of Sec. 4, Rule 65 of the ROC.

ISSUES: W/N the COMELEC has jurisdiction over petitions for certiorari, prohibition and mandamus involving election cases filed w/ the CFI.

HELD: NONE Settled is the rule that jurisdiction is conferred only by the Constitution or the law. Thus, it cannot be conferred by the Rules of Court w/c are neither constitutional provisions nor legislative enactments but mere procedural rules promulgated by the SC in the exercise of its power to prescribe "rules concerning pleading, practice and procedures in all courts." Accordingly, the aforequoted provision of Sec. 4, Rule 65 of the ROC, cannot be construed as a grant of jurisdiction to the Court of Appeals over petitions for certiorari, prohibition or mandamus involving cases appealable to it. Much less can such provision be interpreted, by analogy, as a grant to the COMELEC of jurisdiction over petitions for certiorari, prohibition or mandamus involving election cases cognizable by the CFI and appealable to said Commission. While it is true that the CA has jurisdiction over petitions for certiorari, prohibition or mandamus

involving cases appealable to it, the grant of jurisdiction is not by virtue of the ROC, but by express legislative fiat, namely, Sec. 30 of the Judiciary Act. No such legislative grant of jurisdiction exists in the case of the COMELEC. Consequently, respondents' contention cannot be sustained. Adapted.

Garcia v. De Jesus, 206 SCRA 779

*EN BANC

F: Two election cases are consolidated herein for both cases involved the same issue, which is, the jurisdiction of the COMELEC to issue Writs of Certiorari, Prohibition and Mandamus in electoral contests. In the Antipolo case, petitioners Garcia and O'Hara were the winning candidates for mayor and vicemayor respectively of Antipolo, Rizal in the 1988 Local Elections. Private respondents De Jesus and David instituted an election protest before the RTC. The RTC ordered for the examination of the ballots and the recounting of the votes. The petitioners filed a Motion to Dismiss Opening of Ballot Boxes and/or to Dismiss the Protest. Consequently, the RTC issued an order limiting the opening of the ballot boxes. The motion for reconsideration filed by private respondents was denied. The respondents then filed a Petition for Certiorari and Mandamus before the COMELEC. Petitioners objected the assumption of jurisdiction by the COMELEC. The COMELEC, nevertheless, directed the RTC to open all the ballot boxes. In the Isabela case, respondent Neyra was proclaimed mayor of Isabela over petitioner Uy in the same local election. Petitioner Uy filed an election protest before the RTC. The RTC in turn, declared Uy the winner. Neyra filed a Notice of Appeal, while Uy filed a Motion for Execution Pending Appeal. Later, Neyra filed before the COMELEC, a petition for Certiorari and/or Prohibition, seeking to enjoin the RTC from further acting on Uy's Motion for Execution. The RTC granted Uy's Motion for Execution, while the COMELEC later, on motion by Neyra, declared as null and void the writ of Execution granted by the RTC.

ISSUES: 1. W/N the COMELEC has the power to issue Writs of Certiorari, Prohibition and Mandamus in electoral contests.

HELD: NONE. In the absence of any specific conferment upon the COMELEC, either by the Constitution or by legislative fiat, the COMELEC is bereft of jurisdiction to issue said Writs. It is the COMELEC alone, invoking its constitutionally (Rep. v. Feliciano, Garcia v. De Jesus, Peo. v. Dramayo) invested appellate jurisdiction and rulemaking power, that arrogate unto itself the authority to issue the aforementioned Writs, in Rule 28, Sec. 1 of its Rules of Procedure. However, neither the appellate jurisdiction of the COMELEC nor its rulemaking power justifies such selfconferment of authority. Jurisdiction or the legal power to hear and determine a cause of action must exist as a matter of law. It may be classified into original and appellate jurisdictions. Original jurisdiction is the power of the Court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law. Appellate jurisdiction is the authority of a Court higher in rank to reexamine the final order or judgment of a lower court w/c tried the case now elevated for judicial review. In the Philippine setting, the authority to issue Writs of Certiorari, Prohibition and Mandamus involves the exercise of original jurisdiction. Thus, such authority has always been expressly conferred, either by the Constitution or by law. It is never derived by implication.

Significantly, what the Constitution granted the COMELEC was appellate jurisdiction. The Constitution makes no mention of any power given the COMELEC to exercise original jurisdiction over Petitions for Certiorari, Prohibition and Mandamus unlike in the case of the SC which was specifically conferred such authority. The immutable doctrine being that jurisdiction is fixed by law, the power to issue such Writs can not implied from the mere existence of appellate jurisdiction. Although there may be authorities in other jurisdictions w/c maintain that such Writs are inherent in the power of higher Courts exercising appellate jurisdiction, the same refers to judicial tribunals, w/c the COMELEC is not. What this agency exercises are administrative and quasijudicial powers. Certiorari is a "writ from a superior court to an inferior court or tribunal commanding the latter to send up the record of a particular case." The function of a Writ of Certiorari is to keep an inferior court w/n the bounds of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to excess of jurisdiction. The grant of appellate jurisdiction to the COMELEC does not necessarily make it a "superior court" visàvis RTCs.

2. W/N RTCs can order execution pending appeal in election contests decided by it involving elective municipal officials.

HELD: YES. The COMELEC is bereft of authority to deprive RTCs of the competence to order execution pending appeal. For one, it is essentially a judicial prerogative. For another, it is a pronouncement of the COMELEC alone in its procedural rules, w/o benefit of statute, unlike in the past. There is no express provision of law, therefore, disauthorizing executions pending appeal, and the COMELEC, in its procedural rules alone, should not be allowed to divest RTCs of that authority. It deprives the prevailing party of a substantive right to move for such relief contrary to the constitutional mandate that those Rules cannot diminish nor modify substantive rights. Section 2, Rule 39 of the ROC, w/c allows RTCs to order executions pending appeal upon good reasons stated in a special order, may be made to apply suppletorily to election contests decided by them. In the Isabela case, good reasons exist w/c justified the RTC's order, granting execution pending appeal. Among others mentioned by the RTC are the combined considerations of the near expiration of the term of office, public interest, the pendency of the election contest for more than 3 years, and that Uy had filed a bond. Adapted.

Veloria v. COMELEC, 211 SCRA 907

*EN BANC

F: Petitioners Veloria, et. al., as well as private respondents Sales, et. al. were candidates for mayor, vicemayor and members of the Sangguniang Bayan of Manaoag, Pangasinan, in the 1988 local elections. The private respondents were declared as winners. Dissatisfied, the petitioners filed election protest w/ the RTC of Ardent, Pangasinan. The RTC ordered the revision of ballots. Priv. repondents filed a Motion to Dismiss on the ground that the RTC had not acquired jurisdiction over the election protest. Such motion was granted leading to the dismissal of the case. However, instead of perfecting an appeal w/n 5 days as provided by law, the petitioners filed a Motion for

Reconsideration, which was denied. The petitioners in turn, filed a Notice of Appeal, which was given due course. The private respondents sought recourse w/ the COMELEC by a petition for Certiorari and Prohibition w/ a Prayer for a Writ of Preliminary Injunction to annul the order giving due course to the appeal. The COMELEC en banc granted the petition. Hence, this special civil action of Certiorari and Prohibition w/ a Prayer fro a Writ of preliminary injunction filed by the petitioners.

ISSUE: W/N the COMELEC has jurisdiction to grant the private respondents' petition for certiorari.

HELD: NONE. There is no merit in this petition for review for the COMELEC correctly found that the petitioners' appeal from the court's order dismissing their election protest was indeed tardy. It was tardy because their motion for reconsideration did not suspend their period to appeal. The petitioners' reliance on Sec. 4, Rule 19 of the COMELEC RULES OF PROCEDURE w/c provides: "A motion to reconsider a decision, resolution, order, or ruling when not pro forma, suspends the running of the period to elevate the matter to the Supreme Court." is misplaced. The "motion for reconsideration" referred to above is the motion for recon. filed in the COMELEC, not in the trial court where a motion for recon. is not entertained. Nevertheless, this petition for certiorari must be granted, for the COMELEC does not possess jurisdiction to grant the private respondents' petition for certiorari. The SC in the consolidated cases of GARCIA v. COMELEC and UY v. COMELEC (GARCIA V. DE JESUS206 SCRA 779), the SC ruled that the COMELEC has not been given, by the Constitution nor by law, jurisdiction to issue writs of certiorari, prohibition and mandamus. "Significantly, what the Constitution granted the COMELEC was appellate jurisdiction. The Constitution makes no mention of any power given the COMELEC to exercise original jurisdiction over petitions for Certiorari, Prohibition and Mandamus. The immutable doctrine being that jurisdiction is fixed by law, the power to issue such writs cannot be implied from the mere existence of appellate jurisdiction xxx." (GARCIA v. DE JESUS) In view of such pronouncement, an original special civil action of certiorari, prohibition or mandamus against a RTC in an election contest may be filed in the Court of Appeals or in the SC being the only courts given such original jurisdiction under the Constitution and the law. Adapted.

8. Rule making

Art. IX, A, Sec. 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules however shall not diminish, increase or modify substantive rights.

Art. IX, C, Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedures in order to expedite disposition of election cases, including preproclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

9. Other functions

Art. IX, A, Sec. 8. Each Commission shall perform such other functions as may be provided by law.

10. Act as National Board of Canvassers for Senators

EO 144, Sec. 2, March 2, 1987

Sec. 2. Board of Canvassers. The Chairman and Members of the Commission on Elections sitting en banc shall be the National Board of Canvassers for the election of Senators. It shall canvass all certificates of canvass coming from and prepared by the district, provincial, and city boards of canvassers (of those cities which comprise one or more legislative districts.)

Furthermore, there shall be a board of canvassers for each province, city, municipality and district of Metropolitan Manila, as follows:

(a) Provincial board of canvassers. The provincial board of canvassers shall be composed of the provincial election supervisor or a senior lawyer in the regional office of the Commission, as chairman, the provincial fiscal, as vicechairman, and the provincial superintendent of schools, as members.

This board shall canvass certificates of canvass from the municipalities and the cities which do not comprise at least one legislative district. It shall proclaim as elected the candidates for the House of Representatives who obtained the highest number of votes in the respective legislative districts.

With respect to the election of senators, the provincial board of canvassers shall prepare in duplicate a certificate of canvass supported by a statement of votes received by each candidate in each municipality/ city, and transmit the first copy thereof to the Commission on Elections for canvassing. The second copy shall be kept by the provincial election supervisor.

(b) City Boards of Canvassers for cities comprising one or more legislative districts. The city board of canvassers for cities comprising one or more legislative districts shall be composed of the city election registrar or lawyer of the Commission, as chairman, the city fiscal, as vicechairman, and the city superintendent of schools as member.

This board shall canvass election returns coming from the polling places within the jurisdiction of the city, and shall proclaim as elected the candidate or candidates for the House of Representatives who obtained the highest number of votes in the legislative district or respective legislative districts.

With respect to the election of senators, this board shall prepare in duplicate certificate of canvass supported by a statement of votes received by each candidate in each polling place and transmit the first copy to the Commission on Elections for canvassing. The second copy shall be kept by the city election registrar.

(c) District Board of Canvassers. The district board of canvassers shall be composed of a lawyer of the Commission, as chairman, and a ranking fiscal in the district, as vicechairman, and the most district school supervisor in the district, as member, to be appointed by the Commission upon consultation with the Department of Justice and the Department of Education, Culture and Sports respectively.

This board shall canvass election returns coming from the polling places within the jurisdiction of the district and shall proclaim as elected the candidate for the House of Representatives who obtained the highest number of votes in the legislative district.

With respect to the election for senators, the same procedure shall be followed by this board as that observed by the city board of canvassers for cities comprising one or more legislative districts.

(d) City/ Municipal Board of Canvassers. The city (for cities not comprising at least one legislative district)

or municipal board of canvassers shall be composed of the city/ municipal election registrar, as chairman, the city fiscal/ municipal treasurer, as the case may be, as vicechairman, and the city superintendent/ district supervisor or in his absence any public school principal, as the case may be, as member.

The board shall canvass election returns coming from the polling places within its jurisdiction, but shall not proclaim any winner in the election for Members of the House of Representatives or for Senators.

This board shall prepare in triplicate a certificate of canvass supported by a statement of votes received by each candidate in each polling place, and transmit the first copy thereof to the provincial board of canvassers for canvassing. The second copy shall be transmitted to the Commission for record purposes and the third copy shall be kept by the city/ municipal election registrar.

11. Review of COMELEC decisions, orders, and resolutions

Art. IX, C, Sec. 2. xxx(2) 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 all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by courts of limited jurisdiction.

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

Art. IX, A, Sec. 7. Each Commission shall decide by a majority of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

Flores v. COMELEC, 184 S 484 (1990)

F: RF was proclaimed as punong barangay. His election was protested by NR. The Municipal Circuit Trial Court sustained NR & installed him as punong barangay. RF appealed to the RTC w/c affirmed the challenged decision. RF then went to the COMELEC but his appeal was dismissed on the ground that the COMELEC had no power to review the decision of the RTC based in Sec. 9 of RA 6679 (Local Gov't Code)

Issue: W/in the COMELEC has jurisdiction

Held: Under Art IXC, Sec 2(2) of the Consti, the COMELEC shall have jurisdiction, hence, Sec. 9 of RA 6679 insofar as it provides that the decision of the municipal or metropolitan court in a barangay case should be appealed to the RTC must be declared unconstitutional.

P had a right to presume the law as valid. Hence his appeal to the RTC would be considered as an

appeal to the COMELEC. Decisions of the COMELEC on election contests involving municipal & barangay officer shall be final & unappealable with respect to questions of fact & not of law. Art IX6 Sec 2(2) of the Consti was not intended to divert the SC of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Consti. Adapted.

Galido v. COMELEC, 193 S 78 (1991)

F: In an election contest involving the elected mayor of GarciaHernandez, Bohol. The COMELEC declared Galeon as the duly elected mayor. Fifteen ballots in the name of his rival, Galido, was invalidated for being marked ballots.

Galido filed the petition for certiorari & injunction w prayer for a restraining order. Galeon moved for the dismissal of the petition on the ground that according to the Consti, Art IX (C) Sec 2 (2), final decisions, orders or rulings of the COMELEC in election contests involving elective municipal offices are final & executory & not appealable. Galido cited Art IX (A) Sec. 7 w/c said that the decision may be brought to the SC.

Issue: W/n decisions of the COMELEC are appealable

Held: Yes. The fact that decisions, final orders or rulings of the COMELEC in contests involving executory & not appealable does not preclude a recourse to the SC by way of a special civil action of certiorari.

A study of the case would however show that the COMELEC committed NO grave abuse of discretion in rendering the questioned decision. Adapted.

Rivera v. COMELEC, 199 S 178 (1991)

F: Petitioner Rivera & private respondent Garcia were candidates for the position of mayor during the local elections in Jan 1988. In an election contest between, Garcia was proclaimed mayor. Rivera appealed the said decision but said decision was affirmed by the COMELEC. R filed a petition with the SC seeking annulment of the COMELEC decision. He contends that the decision has not yet become final & executory. G however contends that the decisions of the COMELEC on election contests involving elective municipal & barangay officials are final, executory & not appealable.

Issue: W/n decisions of the COMELEC on election contests involving elective municipal & barangay officials are unappealble

Held: No. The fact that decisions, final orders or rulings of the COMELEC in contests involving elective municipal & barangay officials are final, executory and not appealable does not preclude a recourse to the SC by way of a special action of certiorari. (Galido v. Comelec.) Adapted.

12. Fiscal Autonomy

Art. IX, A, Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.

C. Commission on Audit

1. Composition and Qualifications

Art. IX, D, Sec. 1. (1) There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirtyfive years of age, certified public accountants with not less than ten years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years, and must not have been candidates for any elective position in the elections immediately preceding their appointment. At no time shall all Members of the Commission belong to the same profession.

Art. VII, sec. 13. xxx The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries.

2. Appointment and Term of Commissioners

Art. IX, D, Sec. 1. xxx(2) The Chairman and the Commissioners shall be appointed by the President with the consent of

the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

3. Appointment of COA personnel


4. Salary


Art. XVIII, Sec. 17. Until the Congress provides otherwise x x x and the Chairmen of the Constitutional Commissions (shall receive), two hundred four thousand pesos each; and the Members of the Constitutional Commissions, one hundred eighty thousand pesos each.

The salary, of course, can be increased and the increase can take effect at once, since, like the Judiciary, the Constitutional Commissions have no part in the passage of such a law.



No members of a Constitutional Commission shall during his "tenure":




c. Engage in the active management or control of any business which in any way may be affected by the functions of his office.


6. Impeachment

Art. XI, Sec. 2. The members of the Constitutional Commissions may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption and other high crimes, or betrayal of public trust.

7. Powers and functions

Art. IX, D, Sec. 2. The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions,

agencies, or instrumentalities, including governmentowned and controlled corporations with original charters, and on a postaudit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other governmentowned or controlled corporations and their subsidiaries; and (d) such nongovernmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law of the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special preaudit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.

The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.

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

Art. VI, Sec. 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each member.

8. Rule making

Art. IX, A, Sec. 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules however shall not diminish, increase or modify substantive rights.

9. Other functions

Art. IX, A, Sec. 8. Each Commission shall perform such other functions as may be provided by law.

10. Review of decisions of COA

Art. IX, A, Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

10. Fiscal Autonomy

Art. IX, A, Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.

D. Sandiganbayan

Art. XI, Sec. 4. The present antigraft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.

PD 1606, as amended by Republic Act 7975

Nunez v. Sandiganbayan, 111 SCRA 433 Decree Creating Sandiganbayan Is Valid.

F: The constitutionality of the law creating the Sandiganbayan was questioned as being violative of (a) due process and equal protection (since private persons charged with estafa or malversation are guaranteed the right to appeal first to the CA and thereafter to the SC, while private persons charged with public officers before the SB are allowed only one appeal, and that is, to the SC), and (b) no ex post facto rule (since before the promulgation of PD 1606, the right to appeal to the CA and then to the SC was already secured by Secs. 17 and 29 of the Judiciary Act of 1948). Adapted.

HELD: (1) The claim that PD 1606 deprives petitioner of the equal protection of the law is hardly convincing considering that the Decree is based on a valid classification. The Consti. provides for the creation of a special court, known as Sandiganbayan (SB), and the rule is settled that the general guarantees of the Bill of Rights, among w/c are the due process and equal protection clauses, must give way to specific provisions, such as the provision on the creation of the SB.

(2) It hardly can be argued that a particular mode of procedure provided in a statute can become the vested right of any person. "An accused has no vested right in particular modes of procedure as in determining whether particular statutes by their operation take from an accused any right that was regarded, at the time of the adoption of the Consti., as vital for the protection of life and liberty, and w/c he enjoyed at the time of the commission of the offense charged against him.

Would the omission of the CA as an intermediate tribunal, deprive those, like the petitioner, who are

charged in the SB, of a right that is vital to the protection of their liberty? Its answer must be in the negative. The innocence of guilt of the accused is passed upon by a 3judge division of the SB. Moreover, a unanimous vote is required, otherwise, the Presiding Justice designates two other Justices from among the members of the SB to sit temporarily in a division of 5 until a decision is rendered w/ the concurrence of 3 Justices. If convicted, the accused can seek a review in the SC on a question of law or the substantiality of the evidence. Petitioner makes much of the facts that there is no review by the SC of facts. What cannot be too strongly emphasized is that the SC, in determining whether to give due course to a petition for review of a decision of the SB, must be convinced that the constitutional presumption of innocence has been overcome. Thus, it cannot be said that there is no way of scrutinizing whether the quantum of evidence required for conviction in criminal cases have been satisfied. VV.

Makasiar, J., concurring and dissenting:

The dissenting opinion noted the discrimination in treatment as contented by allowing only one appeal, and only by way of certiorari which is based on mere substantial evidence and not proof beyond reasonable doubt. Adapted.

E. Office of the Ombudsman

See also PD 1603, July 18, 1979RA 6770, Nov. 17, 1989

1. Composition

Art. XI, Sec. 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

2. Qualifications

Art. XI, Sec. 8. The Ombudsman and his Deputies shall be naturalborn citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have for ten years or more been a judge or engaged in the practice of law in the Philippines.

During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article IXA of this Constitution.

3. Appointment and Term

Appointment

Art. XI, Sec. 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.

Term

Id., Sec. 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office.

4. Rank and salary

Id., Sec. 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their term of office.


Art. IX, Sec. 8. xxxDuring their tenure, they shall be subject to the same disqualifications and prohibitions as

provided for in Section 2 of Article IXA of this Constitution.


(not in VV's outline)

Art. XI, Sec. 16. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly by any government owned or controlled bank or financial

institution to the President, Vice President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.

6. Jurisdiction

Id., Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government owned or controlled corporations and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

Quimpo v. Tanodbayan, 146 SCRA 137 (1986) Tanodbayan Has Jurisdiction over all Government Owned Firms Regardless of How Organized.

F: F. Quimpo filed a complaint w/ the Tanodbayan (TB) charging Greg Dimaano and Danny Remo, manager and analyst of Petrophil, w/ viol. of RA 3019 for their refusal to pay Quimpo's fees as surveyor. The TB dismissed the complaint, however, on the ground that his jurisdiction extended only to govt owned corps organized under a special law. PETROPHIL is a corp. organized under the Gen. Corp. Code; it was acquired by the govt to carry out its oil and gasoline programs. Quimpo filed a petition for certiorari, questioning the decision of the TB. The new TB confessed judgment.

HELD: (1) In NHA v. Juco, 134 S 172 (1984), it was held that for purposes of coverage in the Civil Service, employees of govt owned or controlled corps. whether created by special law or formed as subsidiaries are covered by the CS law, not the Labor Code, and the fact that pvt. corps. owned or controlled by the govt may be created by special charter does not mean that such corps. not created by special law are not covered by the Civil Service. (This ruling has since been overruled.)

(2) The meaning thus given to "govtowned or controlled corps." for purposes of the CS [Art. IX, B, Sec. 2 (1)] provision should likewise apply for purposes of the TB and the SB provisions [Art. XI, secs. 4 and 12], otherwise, incongruity would result; and a govtowned corp. could create as many subsidiary corps. under the Corp. Code as it wishes, w/c would then be free from strict accountability and could escape the liabilities and responsibilities provided for by law. xxx [T]here can be no gainsaying that as of the date of its acquisition by the Govt, utilizing public funds, PETROPHIL, while retaining its own corporate existence, became a govtowned or controlled corp. w/in the constitutional precept. Its employees, therefore are public servants falling w/in the investigatory and prosecutory jurisdiction of the TB for purposes of the RA 3019. VV.

7. Powers and functions

Art. XI, Sec. 13. The Office of the Ombudsman shall have the following powers, functions and duties:

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

(2) Direct, upon complaint or at its own instance, any public official or employee of the

Government, or any subdivision, agency or instrumentality thereof, as well as of any governmentowned or controlled corporation with original charter; to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

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

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

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

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

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

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

Barlongay: The functions of the Ombudsman may be divided into four: (1) Investigatory; (2) Prosecutory; (3) Disciplinary; and (4) Assistory.

8. Fiscal Autonomy

Id., Sec. 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly release.

9. Appointment of personnel

Id., Sec. 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law.

E. Office of the Special Prosecutor

Id., Sec. 7. The existing Tanodbayan shall hereafter be known as the Office of the Special

Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.

Zaldivar v. Sandiganbayan, 160 SCRA 843 (1988) and Resolution, May 19, 1988

F: Petitioner, governor of Antique, filed a petition for certiorari, prohibition and mandamus to restrain the Sandiganbayan & Tanodbayan Raul Gonzales from proceeding with the prosecution & hearing of criminal cases against him on the ground that said cases were filed by the Tanodbayan w/o legal & constitutional authority since under the 1987 Consti., it is only the Ombudsman who has the authority to file cases with the Sandiganbayan.

HELD: (1) We find the petitions impressed w/ merit. Under Art. XI, Sec. 13, par. 1 of the Consti., the Ombudsman (as distinguished w/ the incumbent TB) is charged w/ the duty to:

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

On the other hand, Art. XI, Sec. 7 of the Consti. provides that

"The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution."

Now, then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent TB (now called Sp. Pros.) is clearly without authority to conduct prel. investigations and to direct the filing of crim. cases, except upon orders of the Ombudsman. This right to do so was lost effective Feb. 2, 1987

Resolution on the Motion for Reconsideration, May 19, 1988

(1) The power of investigation conferred on the Ombudsman covers both administrative and crim. offenses. Accordingly, the Sp Pros. cannot claim that he retains the specific power of prel. investigation while conceding the general power of investigation to the Ombudsman. The greater power embraces the lesser.

(2) The fact that the informations filed by the resp. from Feb. 2, 1987, were invalid bec. they were not authorized by the Ombudsman, is not a jurisdictional defect. The Informations could have been challenged in a motion to quash under R 117, ROC on the ground of lack of authority on the part of the officer filing the same. If this ground was not invoked, it is deemed waived under Sec. 8 of the same Rule. xxx

At any rate, to settle this question, we hereby rule that the decision of this Court in this case shall be given prospective application only from April 27, 1988. xxx

To recapitulate, the Court holds that, in the interest of justice, its ruling in 4/27/88 shall apply prospectively to cases filed in Court prior to said resolution and pending trial nor to convictions or acquittals pronounced therein. The exception is where there has been a timely objection and a specific challenge, as in this case, where the Court ordered the nullification of the Info. filed for lack of authority on the part of resp. Gonzales. VV.

See PD No. 1630, secs. 10, 1215 (administrative investigations) and sec. 17 (criminal investigations)

Sec. 10. Powers. The Tanodbayan shall have the following powers:(a) He may investigate, on complaint by any person or on his own motion or initiative, any administrative

act whether amounting to any criminal offense or not of any administrative agency including any government owned or controlled corporations;

(b) He may prescribe the methods by which complaints are to be made, received, and acted upon; he may determine the scope and manner of investigations to be made; and, subject to the requirements of this Decree, he may determine the form, frequency, and distribution of his conclusions and recommendations;

(c) He may request and unless as herein provided for he shall be given by each administrative agency the assistance and information he deems necessary to the discharge of his responsibilities; he may examine the records and documents of all administrative agencies; and he may enter and inspect premises within any administrative agency's control, provided, however, that, where the President in writing certifies that such information, examination or inspection might prejudice the national interest or violate existing law, the Tanodbayan shall desist. All information so obtained shall be confidential, unless the President, in the interest of public service, decides otherwise;

(d) He may issue a subpoena to compel any person to appear, give sworn testimony, or produce documentary or other evidence the Tanodbayan deems relevant to a matter under his inquiry;

(e) If after preliminary investigation he finds a prima facie case, he may file the necessary information or complaint with the Sandiganbayan or any proper court or administrative agency and prosecute the case;

(f) He may file and prosecute civil and administrative cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in governmentowned or controlled corporations, in relation to their office;

(g) He may undertake, participate in, or cooperate with general studies or inquiries, whether or not related to any particular administrative agency or any particular administrative act, if he believes that they may enhance knowledge about or lead to improvements in the functioning of administrative agencies.

In carrying out his functions, the Tanodbayan may with the approval of the President, deputize or call upon any official or employee of the government or any agency or office and during such deputation the official or employee concerned shall be under the supervision and control of the Tanodbayan.

Sec. 12. Matters appropriate for Investigation. (a) In selecting matters for his attention, the Tanodbayan should also address himself to an administrative act that might be

1. contrary to law or regulation;2. unreasonable, unfair, oppressive, or inconsistent with the general course of an administrative agency's

functioning;3. mistaken in law or arbitrary in ascertainment of facts;4. improper in motivation or based on irrelevant considerations;5. unclear or inadequately explained when reasons should have been revealed;6. inefficiently performed; or7. otherwise objectionable

(b) The Tanodbayan may concern himself also with strengthening procedures and practices which lessen the risk of occurrence of any objectionable administrative acts.

Sec. 13. Action on Complaints. (a) The Tanodbayan may receive a complaint from any source concerning an administrative act. At no expense to the complainant, he may conduct a suitable investigation into the things complained of.

(b) After completing his consideration of a complaint, whether or not it has been investigated, the Tanodbayan shall suitably inform the complainant and, when appropriate, the administrative agency or agencies involved.

(c) A letter to the Tanodbayan from a person in a place of detention or in a hospital or other institution under the control of an administrative agency shall be immediately forwarded, unopened to the Tanodbayan.

Sec. 14. Consultation with Agency. Before announcing a conclusion or recommendation that criticizes an administrative agency or any person, the Tanodbayan shall consult with that agency or person.

Sec. 15. Recommendations. (a) If, having considered a complaint and whatever material he deems pertinent, the Tanodbayan is of the opinion that an administrative agency should (1) consider the matter further, (2) modify or cancel an administrative act, (3) alter a regulation or ruling, (4) explain fully the administrative act in question, or (5) take any other step, he shall state his recommendations to the administrative agency. If the Tanodbayan so requests, the agency shall, within the time he has specified, inform him about the action taken on his recommendations or the reasons for not complying with them.

(b) If the Tanodbayan believes that an administrative action has been dictated by laws whose results are unfair or otherwise objectionable, he shall bring to the of the President and the National Assembly (Congress) his views concerning desirable statutory change.

Sec. 17. Investigation and Prosecution of Cases. The Office of the Tanodbayan shall have the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan to file information therefor and to direct and control the prosecution of said cases. The Tanodbayan may utilize the personnel of his office and/ or with the approval of the President, designate or deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist him in the investigation and prosecution of said cases. Those designated or deputized to assist him as herein provided shall be under his supervision and control.

No publicity shall be allowed during the pendency of such preliminary investigation and the name of the complainant and the accused shall not be made public until an information is filed by the Tanodbayan.

The Tanodbayan, his investigators and prosecutors, whether regular members of his staff or designated by him as herein provided, shall have the authority to administer oaths, to issue subpoena duces tecum, to summon and compel witnesses to appear and testify under oath before them and/ or to bring books, documents and other things under their control, and to secure the attendance or presence of any absent or recalcitrant witness through application before the Sandiganbayan or before any inferior or superior court having jurisdiction of the place where the witnesses or evidence is found.

The resolutions and actions of the Tanodbayan shall not be subject to review by any administrative agency.

G. Central Monetary Authority

1. Composition and qualifications

Art. XII, Sec. 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be naturalborn Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions.

Until the Congress otherwise provides, the Central Bank of the Philippines, operating under existing laws, shall function as the central monetary authority.

Joaquin Bernas, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A commentary, 1988 first edition, vol. II (hereinafter II Bernas):

An Independent Central Monetary Authority. The important concept is "independent." This has reference to all forms of undue control or influence whether foreign or local. xxx

As envisioned, what seems to be envisioned is the diminution of govt control on monetary policy bec. the body will be composed of a majority from the private sector, w/c can include people from the labor and peasant sector.

2. Functions

Id., Sec. 20, supra.

Id., Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.

See RA 7653

H. Economic and Planning Agency

Id., Sec. 9. The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development.

Until the Congress provides otherwise, the National Economic and Development Authority shall

function as the independent planning agency of the government.

Id., Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporation or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

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

The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

I. National Commissions

1. Commission on Human Rights

a. Composition and Qualifications

Art. XIII, Sec. 17. (1) There is hereby created an independent office called the Commission on Human Rights.

(2) The Commission shall be composed of a Chairman and four Members who must be naturalborn citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law.

(3) Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers.

(4) The approved annual appropriations of the Commission shall be automatically and regularly released.

b. Powers and Functions

Art. XIII, Sec. 18. The Commission on Human Rights shall have the following powers and functions:

(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid

services to the underprivileged whose human rights have been violated or need protection;(4) Exercise visitorial powers over jails, prisons, or detention facilities;(5) Establish a continuing program of research, education, and information to enhance respect for

the primacy of human rights;(6) Recommend to the Congress effective measures to promote human rights and provide for

compensation to victims of violations of human rights, or their families;(7) Monitor the Philippine Government's compliance with international treaty obligations on

human rights;(8) Grant immunity from prosecution to any person whose testimony or whose possession of

documents or other evidence is necessary or convenient to determine the truth in any investigation conduced by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the performance of its functions;

(10) Appoint its officers and employer in accordance with law; and(11) Perform such other duties and functions as may be provided by law.

Id., Sec. 19. The Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendations.

II Bernas:

Functions of the Commission. The principal functions of the CHR is investigatory. In fact, in terms of law enforcement, this pretty much is the limit of its function. Beyond investigation, it will have to rely on the Justice Dept. w/c has full control over prosecutions. Thus, under Sec. 18 (9), it can only request assistance from executive offices.

xxx

Operational Measures. The authority to set its "operational guidelines" was adopted in lieu of authority to "set its own priorities" in order to avoid the suspicion that the CHR might narrow the scope of its investigation to military violations of human rights only.

Legal Measures. What the legal measures are w/c the CHR may adopt under Sec. 18 (3) was explained as including the power to issue directives for the preservation of "the body of the detainee and to prevent the authorities from hiding it, or from torturing or transferring the body until further orders of the court, w/o prejudice to the right of the aggrieved party to petition for the issuance of a writ of habeas corpus..." xxx The Commission, however, has no power to order the release of a detainee.

BARLONGAY CASES:

Carino v. Commission on Human Rights, 204 SCRA 483 (1991)

The threshold question is whether of not the CHR has the power under the Consti. to adjudicate; whether or not, like a court of justice, or even a quasijudicial agency, it has jurisdiction or adjudicatory powers or the power to try and decide, or hear and determine, certain specific type of cases, like alleged human rights violations involving civil or political rights.

The Court declares the CHR to have no such power xxx The most that may be conceded to the CHR in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But factfinding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasijudicial agency or official. xxx To be considered a judicial function, the faculty or receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitely, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the CHR does not have.

Investigate. The legal meaning of "investigate" is "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into w/ care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry; to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of w/c ordinarily does not require a hearing xxx an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters.

Adjudicate. In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous w/ adjudge in its strict sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn xxx Implies a judicial determination of a fact, and the entry of judgement." RAM.

EPZA v. CHR, 208 SCRA 125

F: On 5/30/80, PD 1980 was issued reserving and designating certain parcels of land in Rosario and Gen. Trias Cavite, as the "Cavite EPZA. For purposes of devt, the area was divided into Phases I to IV. A parcel in Phase IV was bought by the Filoil Refinery Corp., w/c in turn sold it to EPZA.

Bef. EPZA could take possession of the area, several individuals had entered the premises and planted agricultural products therein w/o permission from EPZA or its predecessor. To convince the intruders to depart peacefully, EPZA, in 1981, paid P10,000 financial assistance to those who accepted the same and signed quitclaims. Among them were Teresita Valles and Alfredo Aledia, father or resp. Loreto Aledia.

After 10 yrs., resp. T. Valles, Loreto Aledia and Pedro Ordonez filed in the resp. CHR a joint complaint praying for "justice and other reliefs and remedies."

xxxOn 5/17/91, the CHR issued an order of injunction commanding EPZA, the 125th PNP Co. and Gov. Remulla and

their subordinates to desist from committing further acts of demolition, terrorism, and harassment until further orders from the CHR and to appear bef. the CHR. Subsequent orders of injunction were issued by CHR. The motion filed w/ EPZA for the lifting of the order of injunction was denied. MFR was likewise denied. Hence, petitioner filed in this Court a special civil action of certiorari and prohibition, w/ a prayer for the issuance of a restraining order and/ or prel. inj., alleging

that CHR acted in excess of its jurisdiction and w/ grave abuse of discretion in issuing the restraining order and injunctive writ xxx ISSUE: Does the CHR have jurisdiction to issue a writ of injunction or restraining order against supposed violators of human rights, to compel them to cease and desist from continuing the acts complained of.?

HELD: No. The constitutional provision directing the CHR directing the CHR to "provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection" may not be construed to confer jurisdiction on the CHR to issue a restraining order or writ of injunction for, if that were the intention, the Consti. would have expressly said so. Jurisdiction is only conferred by the Consti. or by law." xxx

Evidently, the "preventive measures and legal aid services" mentioned in the Consti. refer to extrajudicial and judicial remedies (including prel. writ of injunction) w/c the CHR may seek from the proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself has not jurisdiction to issue the writ, for a writ of pre. inj. may only be issued "by the judge of any court in w/c the action is pending (w/in his district), or by a Justice of the CA, or of the SC. It may also be granted by a judge of a RTC in any action pending in an inferior court w/in his district. RAM.

c. Fiscal Autonomy

Art. XII, Sec. 17. (4) The approved annual appropriations of the Commission (on Human Rights) shall be automatically and regularly released.

2. National Language Commission

Art. XIV, Sec. 9. The Congress shall establish a national language commission composed of representatives of various regions and disciplines which shall undertake, coordinate, and promote researches for the development, propagation and presentation of Filipino and other languages.

3. National Police Commission

Art. XVI, Sec. 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.

BARLONGAY CASES:

Carpio v. Executive Secretary, 206 SCRA 290 (1992)

F: The Petitioner, as citizen, taxpayer and member of the Phil. Bar, filed a petition to declare the unconstitutionality of RA 6975, "An Act Establishing the Philippine National Police Under a Reorganized DILG and For Other Purposes."

HELD: 1. As to the view that RA 6975 emasculated the NPC by limiting its power to administrative control over the PNP, thus control remained w/ the Dept. Sec. under whom both the NPC and the PNP were placed.

It is an accepted principle in consti. law that the Pres. has control of all executive departments, bureaus, and offices. This presidential power of control over the executive branch of govt extends over all executive officers xxx

As a corollary rule is the Doctrine of Qualified Political Agency. As the Pres. cannot be expected to exercise his control powers all at the same time and in person, he will have to delegate some of them to his Cabinet members.

Under this doctrine, all executive and administrative organizations are adjuncts of the Exec. Dept., the heads of various exec. depts. are assistants and agents of the Chief Exec., and except in cases where the Chief Exec. is required by the Consti or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Exec. are performed by and through the exec. depts., and the acts of the Secretaries of such depts., performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Pres., presumptively the acts of the Chief Exec.

Thus, the President's power of control is directly exercised by him over the Cabinet members who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in the exec. dept.

Additionally, the circumstance that the NPC and the PNP are placed under the reorganized DILG is merely an administrative realignment that would bolster a system of coordination and cooperation among the citizenry, local executives and the integrated law enforcement agencies and public safety agencies created under RA 6975, the funding of the PNP being in large part subsidized by the national govt.

2. As to the issue that in manifest derogation of the power of control of the NPC over the PNP, RA 6975 vested the power to choose the PNP Prov'l Director and the Chief of Police in Governors and Mayors, respectively; the power of operational "supervision and control" over police units in city and municipal mayors.

There is no usurpation bec. under this very same provision, it is clear that the local executives are only acting as representatives of the NPC. As such deputies, they are answerable to the NPC for their actions in the exercise of their functions under that section.

3. As to the issue that in manifest derogation of the power of control of the NPC over the PNP, RA 6975 vested in the CSC, participation in appointments to the positions of Senior Supt. to Deputy Director Gen. as well as the administration. of qualifying entrance examinations.

Sec. 31 (a), (b), (c) and Sec. 32 of said Act precisely underscores the civilian character of the PNP and will undoubtedly professionalize the same.

4. As to the issue that in manifest derogation of the power of control of the NPC over the PNP, RA 6975 vested disciplinary powers over the PNP members in the People's Law Enforcement Boards (PLEB) and in city and municipal mayors.

Pursuant to Sec. 20 (c) of the Act, the NPC exercises appellate jurisdiction, through the regional appellate board, over decisions of both the PLEB and the said mayors. Further, it is the Commission w/c shall issue the implementing guidelines and procedures to be adopted by the PLEB for the conduct of its hearings, and it may assign the NPC hearing officer to act as legal consultants of the PLEBs.

xxx The purpose of the establishment of PLEB is to professionalize the PNP.

5. As to the issue that Sec. 12 of the law constitutes an encroachment upon , interference w/, and an abdication by the Pres. of exec. control and commanderinchief powers.

Sec. 12 gives muscle to and enforces the proposition that the national police does not fall under the CommanderinChief powers of the Pres. This is so since the police force, not being integrated w/ the military, is not part of the AFP. As a civilian agency of the govt, it properly comes w/in the and is subject to the exercise by the Pres. of the power of exec. control. xxx

6. As to the issue that the creation of "A Special Oversight Committee" under Sec. 84 of the Act, especially the inclusion of some legislators as members is an unconstitutional encroachment upon and diminution of the President's power of control over all exec. depts., bureaus and offices.

The Commit is simply an ad hoc or transitory body, established and tasked solely w/ planning and overseeing the immediate transfer, merger, and/or absorption into the DILG of the "involved agencies."

7. The 3 Constitutional Commissions (CSC, COA & COMELEC) and the additional commission created by the Consti (CHR) are all independent of the Executive; but the NAPOLCOM is not. In fact, it was stressed during the CONCOM deliberations that this commission would be under the Pres., and hence may be controlled by the Pres., through his or her alter ego, the Sec. of the Interior and Local Govt. Adapted.

NAPOLCOM v. De Guzman, 229 SCRA 801 (1994)

F: The case at bar had its origin in the implementation of the compulsory retirement of PNP officers as mandated in Sec. 39, RA 6975. Among others, the Act provides for a uniform retirement system for PNP members xxx for officer(s) and nonofficer(s) upon the attainment of age 56. Based on Sec. 39 of the said Act, petitioners sent notices of retirement to private respondents who are all members of the defunct PC and have reached the age of 56.

In response, pvt. resps. filed a complaint on 12/19/91 for declaratory order and/ or injunction bef. the RTC. In their complaint, resps. aver that the age of retirement set at 56 cannot be applied to them since they are also covered by Sec. 89 of the same law w/c provided for a transition period of four yrs. following the effectivity of the Act in setting the retirement age. xxx It is the submission of resps. that the term "INP" includes both the former members of the PC and the local police force who were earlier constituted as the INP. On the other hand, the belief of the petitioners that the 4yr. transition period provided in Sec. 89 applies only to the local police forces who previously retired, compulsorily at age 60 for those in ranks of Police/ Fire Lt. or higher; while the retirement age for the PC had already been set at 56 under the AFP law.

xxx

ISSUE: Does the RA 6975 distinguish INP from the PC?

HELD: From a careful perusal of some provisions of the law (Secs. 23, 85 and 86), it appears therefore, that the use of the term INP is not synonymous w/ the PC. Had it been otherwise, the statute could have just made a uniform reference to the members of the whole PNP for retirement purposes and not just the INP. The law itself distinguishes INP from the PC and it cannot be construed that "INP" as used in Sec. 89 includes the members of the PC.

As contrary to the pronouncement of resp. judge that the law failed to define who constitutes the INP. Sec. 90 of the law states that "xxx The Integrated National Police, which is the civilian component of the PCINP xxx."

xxxThe legislative intent to classify the INP in such manner that Sec. 89 is applicable only to the local

police force is clear. The question now is w/n the classification is valid. The test for this is reasonableness such that it must conform to the ff. requisites: (1) it must be based upon substantial distinctions; (2) it must be germane to the purpose of the law; (3) It must not be limited to existing conditions only; and (4) it must apply equally to all members of the same class.

The classification is based upon substantial distinctions. The PC, bef. the effectivity of the law, were already retirable at age 56 while the local police force at 60 and governed by different laws. The distinction is relevant for the purpose of the statute, w/c is to enable the local police force to plan for their retirement w/c would be earlier than usual bec. of the new law. Sec. 89 is merely transitory, remedial in nature, and loses its force and effect once the 4yr. transitory period has elapsed. Finally, it applies to all local police officers. xxx RAM.

Himagan V. PEOPLE, 237 SCRA 538 (1994)

F: Petitioner, a policeman assigned w/ the medical co. of the PNP HQ at Camp Catitigan, Davao City was implicated in the killing of Benjamin Machitar, Jr. and the attempted murder of Bernabe Machitar. After the informations for murder and attempted murder were filed w/ the RTC, the trial court issued an order suspending petitioner until termination of the case on the basis of Sec. 47 of RA 6975, w/c provides:

Sec. 47. Preventive Suspension Pending Criminal Case. Upon the filing of a complaint or information sufficient in form and substance against a member of the PNP for grave felonies where the penalty imposed by law is six (6) years and one (1) day or more, the court shall immediately suspend the accused from office until the case is terminated. Such case shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment of the accused.

Petitioner filed a motion to lift the order for his suspension relying on Sec. 42 of PD 807, that his suspension should be limited to 90 days and also, on our ruling in Deloso v. SB, and Layno v. SB. The motion and the subsequent MFR were denied. Hence, this petition for certiorari and mandamus.

HELD: We find the petition to be devoid of merit.(1) The language of the first sentence is clear, plain and free from ambiguity. xxx The second sentence

xx providing the trial must be terminated w/in 90 days from arraignment does not qualify or limit the first sentence. The 2 can stand independently of each other. The first refers to the period of suspension. The 2nd deals w/ the time frame w/in w/c the trial should be finished.

Suppose the trial is not terminated w/in the 90day period, should the suspension of accused be lifted? Certainly no. While the law uses the mandatory word "shall" bef. the phrase "be terminated w/in 90 days," there is nothing in the law that suggests that the preventive suspension of the accused will be lifted if the trial is not terminated w/in that period. But this is w/o prejudice to the administrative sanctions, and, in appropriate cases where the facts so warrant, to criminal or civil liability of the judge. Should the trial be unreasonably delayed w/o the fault of the accused, he may ask for the dismissal of the case. Should this be refused, he can compel its dismissal by certiorari, prohibition or mandamus, or secure his liberty by

(2) Petitioner misapplies Sec. 42 of PD 807. A meticulous reading of the section clearly shows that it refers to the lifting of the preventive suspension in pending admin. investigation, not in crim. cases, as here. xxx Sec. 91 of RA 6975 w/c states that the CS law and its implementing rules shall apply to members of the PNP insofar as the provisions, rules and regulations are not inconsistent w/ RA 6975.

(3) The petitioner's reliance on Layno and Deloso is misplaced. xxx Sec. 13 of RA 3019 upon w/c the preventive suspension of the accused in Layno and Deloso was based was silent w/ respect to the duration of the preventive suspension, such that the suspension of the accused therein for a prolonged and unreasonable length of time raised a due process question. Not so in the instant case. Petitioner is charged w/ murder under the RPC and it is undisputed that he falls squarely under Sec. 47 RA 6975 w/c categorically states that his suspension shall last until the case is terminated.

(4) The deliberations of the Bicameral Conference Committee on National Defense relative to the bill that became RA 6975 reveal the legislative intent to place on preventive suspension a member of the PNP charged w/ grave felonies where the penalty imposed by law exceeds six yrs. of imprisonment and w/c suspension continues until the case against him is terminated. RAM.

4. Commission on Indigenous Cultural Communities

Art. XVI, Sec. 12. The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities.

UPDATED 1/15/96RAM

III. LOCAL GOVERNMENTS

A. Local government units

II Bernas:

Local Government Units. "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 u unitary system of govt, such as the govt under the Phil. Consti., local govt can only be an infrasovereign subdivision of one sovereign nation. It cannot be an imperium in imperio.

Structure of local government units

(not in VV's outline)Art. X, Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the

provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

The territorial and political subdivisions of the Republic of the Philippines are the (a) provinces, (b) cities, (c) municipalities and (d) barangays.

II Bernas:

The constitutional significance of Sec. 1 is that provinces, cities, municipalities and barangays have been fixed as the standard territorial and political subdivisions of the Phils. To these the 1987 Consti. added the "autonomous regions." This manner of subdividing the Phils. cannot go out of existence except by a constitutional amendment.

Art. II, Sec. 25. The State shall ensure the autonomy of local governments.

Art. X, Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

II Bernas: Local autonomy as a concept is relative and simply means, as indicated in Sec. 3, decentralization. The measure of decentralization for the local units, however, will be less than for the autonomous regions.

Ganzon v. CA, 200 SCRA 271 (1991). Local autonomy means "a more responsive and accountable local govt structure instituted through a system of decentralization. The Consti. does nothing more than to break up the monopoly of the national govt over the affairs of local govts. "to liberate local govts from the imperialism of Mla." Autonomy, however is not meant to end the relation of partnership and interdependence bet. the central administration and local govt units, or otherwise, to usher in a regime of federalism. xxx

Decentralization means devolution of national administration, but not power, to the local levels.

1. General supervision of local governments by the President

Art. X, Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

Id., Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.

Supervision Defined. Supervision means overseeing or the power of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. (Ganzon v. CA, 200 SCRA 271.)

2. Local Government Code

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

Republic Act 7160, "Local Government Code of 1991"

Local Government Code

The Congress shall enact a local government code which shall:

(1) Provide for a more responsive and accountable local government structure, instituted through a system of decentralization, with effective mechanism of recall, initiative, and referendum.

(2) Allocate among the different local government units their powers, responsibilities and resources.

Legislative bodies of local governments shall have sectoral representation as may be provided by law. (Art. X, Sec. 9)

(3) Provide for the qualifications, election, appointment and removal, term, salaries, powers and

functions and duties, of local officials.

The term of office of elective local officials except barangay officials which shall be determined by law, shall be 3 years.

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 an interruption in the continuity of his service for the full term for which he was elected. (Art. X, Sec. 8)

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the members of Congress. (Art. XVIII, Sec. 1.)

(4) All other matters relating to the organization and operation of the local units. (Art. X, Sec. 3.)

Validity of Creation of Municipality Before the Local Government Code.

Torralba v. Municipality of Sibagat, 147 SCRA 390 (1987)

F: The petitioners question the validity of BP 56 creating the municipality (mun.) of Sibagat in Agusan Province, on the ground that it was not passed in accordance w/ the criteria of the LGC as required by Art. IX, Sec. 3 of the 1973 Consti. (now Art. IX, Sec. 10 of the Consti.)

HELD: The LGC took effect on 2/10/83, whereas BP 56 took effect on 2/1/80. The Consti. does not make the enactment of the LGC a condition sine qua non for the creation of a new mun., but only that it must be approved by the people in the area or areas affected. Unlike in the case of Tan v. COMELEC, there is no question here that a plebiscite was held in such area and its legality is not questioned. VV.

a. Term of office of local officials, except barangay officials

Art. X, Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.

XVIII, Sec. 1. xxxThe first local election shall be held on a date to be determined by the President, which may be

simultaneous with the election of the Members of the Congress. It shall include the election of all the Members of the city or municipal councils in the Metropolitan Manila area.

b. Term of office of barangay officials

Art. X, Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.

Republic Act No. 6679, Sec. 1 in conjunction with Sec. 43 (c), RA 7160

Sec. 1. The elections of barangay officials set on the second Monday of November 1988 by Republic Act No. 6653 are hereby postponed and reset to March 28, 1989. They shall serve a term which shall begin on the first day of May 1989 and ending on the thirtyfirst day of May 1994.

There shall be held a regular election of barangay officials on the second Monday of May 1994 and on the same day every five (5) years thereafter. Their term shall be for five (5) years which shall begin on the first day of June following the election and until their successors shall have been elected and qualified: Provided, That no barangay official shall serve for more than three (3) successive terms.

The barangay elections shall be nonpartisan and shall be conducted in an expeditious and inexpensive manner. (RA 6679)

Sec. 43. Term of Office. xxxxxx(c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3)

years, which shall begin after the regular election of barangay officials on the second Monday of 1994. (RA 7160.)

c. Local Legislative Bodies

Art. X, Sec. 9. Legislative bodies of local governments shall have sectoral representation as may be prescribed by law.

d. Creation, abolition, division or merger of local government units

Art. X, Sec. 10. No province, city, municipality, or barangay may be created, divided, merged,

abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Republic Act 7160, Secs. 610

Sec. 6. Authority to Create Local Government Units. A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the sanggunian panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code.

Sec. 7. Creation and Conversion As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit:

(a) Income. It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned;

(b) Population. It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c) Land Area. It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR.)

Sec. 8. Division and Merger. Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, That the income classification of the original local government unit or units shall not fall below its current income classification prior to such division.

The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein.

Sec. 9. Abolition of Local Government Units. A local government unit may be abolished when its income, population or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sanggunian concerned, as the case may be.

The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged.

Sec. 10. Plebiscite Requirement. No creation, division, merger, abolition, or substantial alteration of

boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (Comelec) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.

In Tan v COMELEC, 142 SCRA 727 (1986), the SC ruled that the plebiscite to be conducted in the creation of a new province (Negros del Norte) must be conducted not only among the constituents of the new province, but also the constituents of those units to be left behind. In other words, the plebiscite must be conducted among the inhabitants of both the old and new towns. The reason is, the old towns are as directly affected by the creation of the new province for they may lose income or other benefit.

Tan v. COMELEC, 142 SCRA 727 (1986)

F: Prompted by the enactment of BP 885 w/c was enacted to create the new Province of Province of Negros del Norte, petitioners herein, who are residents of the Prov. of Negros Occidental, in the various cities and municipalities therein, filed w/ this Court a case for prohibition for the purposes of stopping resps. COMELEC from conducting the plebiscite w/c was scheduled to be held for 1/3/86. Petitioners contend that the law is unconstitutional and it is not in complete accord w/ the LGC as in Art XI, Sec. 3 of our (1973) Consti. xxx The plebiscite sought to be enjoined by them was held as scheduled but there are still serious issues raised in the instant case affecting the legality, constitutionality and validity of such exercise w/c should properly be passed upon and resolved by this Court.

The plebiscite was confined only to the inhabitants of the territory of Negros del Norte. Bec. of the exclusions of the voters from the rest of the province of Negros Occ., petitioners found need to change the prayer of their petition to the end that the constitutional issues w/c they have raised in the action will be ventilated and given final resolution.

HELD: We now state that the ruling in the cases of Lopez v. COMELEC and Paredes v. Hon. Exec. Sec., et al. sanctioning the exclusion of the voters belonging to an existing political unit from w/c the new political unit will be derived, from participating in the plebiscite conducted for the purpose of determining the formation of another political unit, is hereby abandoned.

1. Fact that the plebiscite which the petition at bar sought to stop had already been held and officials of the new province appointed does not make the petition moot, as the petition raises issues an issue of constitutional dimension. The Consti. makes it imperative that there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros Occ. would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate that the 2 political units would be affected. The first would be the parent province of Negros Occ bec. its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte.

2. A plebiscite for creating a new province should include the participation of the residents of the mother province for the plebiscite to conform to the constitutional requirements. No amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite bec. of an alleged intent on the part of the authors and implementors of the challenged statute to carry out what is claimed to be a mandate to guarantee and promote autonomy of local govt. units. The alleged good intentions cannot prevail and overrule the cardinal precept that what our Consti. categorically directs to be done or impose as a requirement must first be observed, respected and complied w/.

3. The created province does not even satisfy the area requirement prescribed in Sec. 197 of the LGC. To this issue, it is even the submission of the respondents that in this regard the marginal sea w/in the three mile limit should be considered in determining the extent of the territory of the new province. Such an interpretation is strained, incorrect and fallacious.

Use of the word "territory" in Sec. 197 of the LGC refers only to the land mass, not to the waters, comprising the political entity. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the LGC and in the very last sentence thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over w/c the political unit exercises control. Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, next, or adjacent. "Contiguous" when employed as an adjective is only used when it describes physical contact, or a touching of sides of 2 solid masses of matter. xxx In the context of the sentence above, what need not be contiguous is the "territory" the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters.

e. Metropolitan Political Subdivisions

Art. X, Sec. 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination.

Art. XVIII, Sec. 8. Until otherwise provided by Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Area.

See RA 7924

Art. XVIII, Sec. 1. xxxxxx The first local elections which shall be held on a date to be determined by the President

xxx. It shall include the election of all members of the city or municipal councils in the Metropolitan area.

II Bernas: The area of jurisdiction of the metropolitan political subdivision will not be the totality of the concerns of municipal govt. but only basic services. As such it will be a juridical entity w/ mun. powers police, eminent domain, and taxation powers exercised by a legislative assembly to the extent needed for providing basic services.

f. Right to vote

Id., Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

Republic Act 7160, Sec. 451

Sec. 451. Cities, Classified. A city may either be component or highly urbanized: Provided, however, That the criteria established in this Code shall not affect the classification and corporate status of existing cities.

Independent component cities are those component cities whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the province.

Under the Local Government Code, a highly urbanized city must have a population of at least 150,000 people, and an annual income of P 30 million. (Sec. 166)

In highly urbanized cities, the voters do not vote in the provincial elections, the city is independent of the province.

In component cities, it depends if the charter prohibits voters from voting in the provincial election, then they cannot participate in the provincial election. That the city pays to the province is no basis for the complaint. If, on the other hand, their charter does not expressly prohibit (it does not have to allow), then they can vote in the provincial election.

Ceniza v COMELEC, 95 SCRA 703 (1980) exemplifies the case in which a component city that is not highly urbanized (Mandaue) because of its income cannot vote in the provincial election (Cebu) because its charter prohibits the voters from voting unlike other component cities whose charters do not contain a similar prohibition.

The classification of cities into highly urbanized cities would show whether it is capable of support of provincial governments, thus justifying the prohibition to vote for provincial officials.

Classification of Cities into "Highly Urbanized" and "Component" Cities.

Ceniza v. COMELEC, 95 SCRA 763 (1980)

F: BP 51 called for the election of local officials on 1/30/80 and, in connection therewith, classified chartered cities into "highly urbanized" and "component" cities on the basis of their regular income (P40M). The registered voters of component cities could vote in the election of the province of w/c that city is a component is their charter so provided, while voters in the highly urbanized cities were not allowed to participate nor vote in the elections of the province in w/c such cities are located. Cebu City was classified as a highly urbanized city while Mandaue, w/ less than P40M income was classified as a component city, but its voters bec. of its charter provisions were not allowed to vote in the elections of the Cebu Province. Petitioners, as TPs and registered voters of Cebu and Mandaue cities, filed an action to stop the election in the affected provinces to allow voters to vote in provincial elections.

HELD: (1) The classification of cities in BP 51 is based on substantial distinction. The revenue of a city would show whether it is capable of indep. existence. Cities w/ smaller income need the continued support of the provincial govts thus justifying the continued participation of the voters in the election of provincial officials. It is true that Mandaue is classified as a component city but bec. of the provision of its charter its registered voters are not allowed to vote in the elections of the Prov. of Cebu, while the other component cities are allowed to do so. But this difference in treatment is a matter of legislative discretion.

(2) The prohibition against the imposition of burdens on the right of suffrage refers to such irrelevant requirements as poll tax, etc.

(3) Highly urbanized cities are indep. of the province in the admin. of their affairs. Such being the case it is but just and proper to limit the selection and election of provincial officials to the voters of the province whose interest are affected and exclude the voters of highly urbanized cities

(4) The charter of Mandaue w/c took effect on 6/21/69 did not have to be ratified by the residents as the requirement or ratification in the Consti (1973) was prospective in character. (5) Neither can BP 51 and the Charter of Mandaue be said to have been enacted for a gerrymandering purpose. "Gerrymandering" is a term employed to describe an apportionment of representative districts so contrived as to give an unfair advantage to a party in power. The statutes here do not involve an apportionment. Nor has it been shown that the exclusion of voters in the affected cities give an unfair advantage to candidates of the party in power. xxx VV. .

3. Powers of Local Governments

a. Revenue and taxing power

Art. X, Sec. 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

II Bernas: Sec. 5 does not change the doctrine that municipal corporations do not posses inherent powers of taxation. What it does is to confer municipal corps. a general power to levy taxes and otherwise create sources of revenue. They no longer have to wait for a statutory grant of these powers. The power of legislative authority relative to the fiscal powers of LGUs has been reduced to the authority to impose limitations on mun. powers.

Moreover, these limitations must be "consistent w/ the basic policy of local autonomy."

b. Share in national taxes

Id., Sec. 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.

c. Share in the proceeds of national wealth

Id., Sec. 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits.

d. Coordination of efforts, services and resources for common benefit

Id., Sec. 13. Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law.

RA 7160, Sec. 33

Sec. 33. Cooperative Undertakings Among Local Government Units. Local Government units may, through appropriate ordinances, group themselves, consolidate, or coordinate their efforts, services, and resources for purposes commonly beneficial to them. In support of such undertakings, the local government units involved may, upon approval by the sangguniang concerned after a public hearing conducted for the purposes, contribute funds, real estate, equipment, and other kinds of property and appoint or assign personnel under such terms and conditions as may be agreed upon by the participating local units through Memoranda of Agreement.

4. The Two Autonomous Regions

a. Creation

Art. X, Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics which the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

Id., Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

Id., Sec. 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.

II Bernas: In the process of determining the territory that will comprise the autonomous regions, there are 3 steps: (1) there is a preliminary administrative determination of what areas should be considered for inclusion in the autonomous region; (2) Congress through the Organic Act makes a determination of what areas should be included and therefore should participate in the plebiscite; (3) Plebiscite can further modify the determination made by the Organic Act bec. Sec. 18 says that "only provinces, etc. voting favorably in such plebiscite shall be included in the autonomous region.

Abbas v. COMELEC, 179 SCRA 287 (1989)

F: The present controversy relates to the plebiscite in 13 provinces and 9 cities in Mindanao and Palawan scheduled for 11/19/89, in implementation of RA 6734 providing for an Organic Act for the Autonomous Region in Muslin Mindanao. These consolidated petitions pray that the Court: (1) enjoin the COMELEC from conducting the plebiscite and the Sec. of Budget from releasing funds to the COMELEC for that purpose; and (2) declare RA 6734, or parts thereof, unconstitutional.

The arguments against RA 6734 raised by petitioners may generally be categorized into either of the ff:I. That certain provisions of the law conflict w/ the Tripoli Agreement.II. That RA 6734, or parts thereor, violates the Consti.

HELD: I. We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement and its binding effect on the Phil Govt whether under public international or internal Phil. law. It is now the Consti. itself that provides for the creation of an autonomous region in Muslim Mindanao.

II. Petitioner contends that the tenor of the above provision makes the creation of an autonomous region absolute, such that even if only 2 provinces vote in favor of autonomy, such an autonomous region would still be created xxx.

HELD: Under the Consti. and RA 6734, the creation of the autonomous region shall take effect only when approved by a majority of the votes cast by the constituent units in a plebiscite, and only those provinces and cities where a majority vote in favor of the Organic Act shall be included in the autonomous region. xxx The single plebiscite will be determinative of (1) whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and cities, among those enumerated in RA 6734 shall comprise it.

Q: The Consti makes effective the creation of the autonomous region upon approval "by majority of the votes cast by the constituent units in a plebiscite called for the purpose." The question is: Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both?

A: If the framers of the Consti. intended to require approval of a majority of all the votes cast in the plebiscite, they would have so indicated. Thus, in Art. XVIII, Sec. 27, it is provided that "[t]his Consti. shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose xxx." Comparing this w/ the provision on the creation of autonomous region, w/c reads:

"The creation of autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite held for the purpose xxx (Art. X, Sec. 18, par. 2.) it will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. xxx It is thus clear that what is required by the Consti. is a simple majority of votes approving the Organic Act in individual constituent units put together, as well as in the individual constituent units.

[Barlongay: What is required is simple majority and not double majority] Separation of Powers. The ascertainment by Congress of the areas that share common attributes is w/in

the exclusive realm of the legislature's discretion and any review of this ascertainment would have to go into the wisdom of the law.

xxx

The power to merge administrative regions is a power which has traditionally been lodged w/ the Pres. to facilitate the exercise of the power of gen. supervision over local govts. No conflict bet. the power of the Pres. to merge administrative regions w/ the Constitutional provision requiring plebiscite in the merger of local govt units. What is referred to in RA 6734 is the merger of admin. regions. Regions I to XII and the NCR, are (mere) groupings of contiguous provinces for admin. purposes, w/c was made as part of the law of the land. Admin. regions are not territorial and political subdivisions. While the power to merge admin. regions is not expressly provided for in the Consti., it is a power w/c has traditionally been lodged w/ the Pres. to facilitate the exercise of the power of gen. supervision over loc. govts. xxx RAM.

Ordillo v. COMELEC, 192 SCRA 100 (1990)

F: On 1/30/90, the people of the provinces of Benguet, Mt. Prov., Ifugao, and Kalinga Apayao and the City of Baguio cast their votes in a plebiscite held pursuant to RA 6766 w/c was an Act Providing for an Organic Act for the Cordillera Autonomous Region. The COMELEC results of the plebiscite showed that the creation of the Region was approved by a majority of the votes in only the Ifugao Prov. and was overwhelmingly rejected in the rest of the provinces and city above mentioned. Consequently, the COMELEC, issued a resolution stating that the Organic Act for the Region has been approved and/ or ratified by majority of the votes cast only in the province of Ifugao. xxx

Petitioners filed a petition w/ the COMELEC to declare the nonratification of the Organic Act for the Region. The petitioners maintain that there can be no valid Cordillera Autonomous Region in only one prov. as the Consti. and RA 6676 require that the said Region be composed of more than one constituent unit.

HELD: The sole prov. of Ifugao cannot validly constitute the Cordillera Autonomous Region. Looking at Art X, Sec. 15, the keywords provinces, cities, municipalities, and geographical areas connote that "region" is to be made up of more than one constituent unit. The term "region" used in its ordinary sense means 2 or more provinces. This is supported by the fact that 13 regions into w/c the Phils is divided for admin. purposes are groupings of contiguous provinces. Ifugao is a prov. in itself. To become part of a region, it must join other provinces, cities, municipalities, and geographical areas. xxx

The entirety of RA 6766 creating the CAR is infused w/ provisions w/c rule against the sole province of Ifugao constituting the Region.

Art. III, Secs. 1 & 2 of the law provide that the CAR is to be administered by the Cordillera govt consisting of the Regional Govt and local govt units.

From these sections, it can be gleaned that Congress never intended that a single province may constitute the autonomous region. Otherwise, we would be faced w/ the absurd situation of having 2 sets of officials, a set of provincial officials and another set of officials exercising their executive and legislative powers over exactly the same small area.

Art. V, Secs. 1 & 4 of RA 6766 vest the legislative power in the Cordillera Assembly whose members shall be elected from regional assembly districts apportioned among provinces and cities composing of the CAR.

If we follow resp's position, the members of such Cordillera Assembly shall then be elected only from the province of Ifugao creating an awkward predicament of having 2 legislative bodies the Cordillera Assembly and the Sangguniang Panlalawigan exercising their legislative powers over the prov. of Ifugao.

xxx

Art. XII, Sec. 10 of the law creates a Regional Planning and Devt Bd. composed of the Cordillera Gov., all the provincial governors and city mayors or their representatives, 2 members of the Cordillera Assembly, and members from the pvt. sector. The Bd has a counterpart in the provincial level called the Provincial Planning and Devt. Coordinator. The Bd.'s functions are almost similar to those of the Provincial Coordinator's.

Art. XXI, Sec. 13 (B) (c) allotting the huge amount of P10M to the Regional Govt for its initial organizational requirements can not be construed as funding only a lone and small province.

Other Provisions w/c are either violated or w/c cannot be complied w/. Sec. 16 of Art. Vi calls for a Regional Chairman on Appointments w/ the Speaker as Chairman and 6 members coming from different

provinces and cities in the Region. Under respondent's view, the Comm. would have a Chairman and only 1 member. It would never have a quorom. Sec. 3 of Art VI calls for cabinet members, as far as practicable, to come from various provinces and cities of the Region. Sec. 1 of Art. II creates a system of tribal courts for the various indigenous cultural communities of the Region. Sec. 9 of Art. XV requires the devt of a common regional language based upon the various languages and dialects in the region w/c regional language in turn is expected to enrich the national language. RAM.

b. Powers of autonomous regions

Art. X, Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organizations;(2) Creation of sources of revenues;(3) Ancestral domain and natural resources;(4) Personal, family, and property relations;(5) Regional urban and rural planning development;(6) Economic, social, and tourism development;(7) Educational policies;(8) Preservation and development of the cultural heritage; and(9) Such other matters as may be authorized by law for the promotion of the general welfare of

the people of the region.

Id., Sec. 21. The preservation of peace and order within the region shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the region shall be the responsibility of the National Government.

c. General supervision by the President

Art. X, Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.

Legal Succession

Benito v. COMELEC, 235 SCRA 436

F: Petitioner Benito and deceased Ogca were candidates for mayor in the mun. of Balabagan, Lanao del Sur. COMELEC Deputy (Makinug) for that area filed a petition for disqualification against Ogca alleging that at on 4/28/92, while inside a billiard hall, Ogca asked him to work for the former's reelection. However, when Makinug refused, Ogca struck him on the head w/ a billiard cue. Subsequently, the Regional Election Director of Cotabato City issued a resolution

stating that there was a prima facie case against Ogca and the latter was probably guilty of the charges in the petition for disqualification. Thereafter, nothing more was heard of the petition. Thereafter, the elections were held, w/ Ogca receiving the highest number of votes for the mayoralty position. xxx [O]n 5/20/92, Ogca was killed in an ambush. On the same date, petitioner, probably not aware of his opponent's death filed a motion to suspend the procl. of Ogca as elected mayor of Balabagan, contending that there was strong evidence of guilt against him in the disqualification case. The motion was denied. xxx

The Municipal Board of Canvassers when asked to exclude from tallying, counting and canvassing all votes for and in the name of the deceased mayoralty candidate ruled in favor of the prayer. xxx On 6/30/92, the Mun. Bd. of Canvassers proclaimed petitioner Benito as the duly elected mayor of the municipality of Balabagan.

HELD: The procl. of petitioner Benito was not a valid procl. It appears from the record that during the 5/11/92 elections, the deceased Ogca obtained a total vote of 3,699 as against petitioner's 2,644. Thereupon, it was the duty of the Mun. Bd. of Canvassers to proclaim as winner the candidate who obtained the highest number of votes. However, the Mun. Bd. of Canvassers, instead of performing what was incumbent upon it, that is, to proclaim Ogca as winner but w/ the info. that he died, to give way to legal succession to office, went on to proclaim herein petitioner. This cannot be countenanced.

xxxThe fact that the candidate who obtained the highest number of votes dies, or is later declared to be

disqualified or not eligible for the office to w/c he was elected does not necessarily entitle the candidate who obtained the 2nd highest number of votes to be declared the winner of the elective office. For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate w/o any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice. RAM .

IV. ACCOUNTABILITY OF PUBLIC OFFICERS

A. Public Office is a public trust

Art. XI, Sec. 1. Public Office is a public trust. Public Officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.

N.B. Local Government Code of 1991, Sec. 40 (f) and Sec. 60 (g) [re elective local officials who apply for foreign citizenship or permanent residence in foreign countries.

Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:

xxx(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and

continue to avail of the same right after the effectivity of this Code xxx

Sec. 60. Grounds for Disciplinary Action. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

xxx(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of

another country xxx

Art. IX, B, Sec. 4. All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution.

See Code of Conduct and Ethical Standards for Public Officials and Employees (Rep. Act 6713, effective March 25, 1989)

B. Disclosure of Assets, Liabilities and Net Worth

Art. XI, Sec. 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, VicePresident, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.

C. Ban on Financial Accommodations

Art. XI, Sec. 16. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any governmentowned or controlled bank or financial institution to the President, the VicePresident, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.

D. Agencies for Insuring Public Accountability

1. Congress Impeachment

Cruz, Philippine Political Law: Impeachment has been defined as a method of national inquest into the conduct of public men. Corwin describes it as "the most formidable weapon in the arsenal of democracy. xxx [I]t is an

extraordinary means of removal exercised by the legislature over a selected number of officials, the purpose being to ensure the highest care in their indictment and conviction and the imposition of special penalties in case of a finding of guilt, taking into account the degree of nature of the offense committed and the high status of the wrongdoers.

Art. XI, Sec. 2. The President, the VicePresident, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal or public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Art. XI, Sec. 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least onethird of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least onethird of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of twothirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.

Lecaroz v. Sandiganbayan, 128 SCRA 324 (1988), supra.

The broad power of the New Consti. vests the resp. court (Sandiganbayan) with jurisdiction over "public

officers and employees, including those in govtowned or controlled corporations." there are, exceptions, however, like constitutional officers, particularly those declared to be removable by impeachment.

Art. XIII, Sec. 2 of the 1973 Consti (now Art. XI, Sec. 2.) proscribes removal from office of the constitutional officers mentioned therein) by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office with an offense that carries the penalty of removal from office, would be violative of the clear mandate of the fundamental law.

xxxJudgment in cases of impeachment shall be limited to removal from office and disqualification to hold

any office of honor, trust, or profit under the Republic of the Phils., but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment, in accordance w/ law. xxx [T]he effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust, or profit under the Republic. It is equally manifest that the party thus convicted may be proceeded against, tried and thereafter punished in accordance w/ law. The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject to prosecution, trial and punishment according to law; and that if the same does not result in a conviction and the official is not thereby removed, the filing of a criminal action "in accordance w/ law" may not prosper. RAM.

2. Sandiganbayan

Art. XI, Sec. 4. The present antigraft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.

3. Ombudsman known as Tanodbayan

Art. XI, Sec. 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

Id., Sec. 6. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.

Id., Sec. 8. The Ombudsman and his Deputies shall be naturalborn citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have for ten years or more been a judge or engaged in the practice of law in the Philippines.

During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article IXA of this Constitution.

Id., Sec. 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.

Id., Sec. 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their term of office.

Id., Sec. 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office.

Id., Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government owned or controlled corporations and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

Id., Sec. 13. The Office of the Ombudsman shall have the following powers, functions, duties:(1) Investigate on its own or on complaint any act or omission of any public official, employee,

office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient(2) Direct, upon complaint or at its own instance, any public official or employee of the

Government, or any subdivision, agency or instrumentality thereof, as well as of any governmentowned or controlled corporation with original charter; to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

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

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

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

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

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

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

Id., Sec. 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly release.

4. Office of Special Prosecutor

Id., Sec. 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.

Zaldivar v. Sandiganbayan, 160 SCRA 843 (1988) and Resolution, May 19, 1988

F: Petitioner, governor of Antique, filed a petition for certiorari, prohibition and mandamus to restrain the Sandiganbayan & Tanodbayan Raul Gonzales from proceeding with the prosecution & hearing of criminal cases against him on the ground that said cases were filed by the Tanodbayan w/o legal & constitutional authority since under the 1987 Consti., it is only the Ombudsman who has the authority to file cases with the Sandiganbayan.

HELD: (1) We find the petitions impressed w/ merit. Under Art. XI, Sec. 13, par. 1 of the Consti., the Ombudsman (as distinguished w/ the incumbent TB) is charged w/ the duty to:

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

On the other hand, Art. XI, Sec. 7 of the Consti. provides that

"The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution."

Now, then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent TB (now called Sp. Pros.) is clearly without authority to conduct prel. investigations and to direct the filing of crim. cases, except upon orders of the Ombudsman. This right to do so was lost effective Feb. 2, 1987

Resolution on the Motion for Reconsideration, May 19, 1988

(1) The power of investigation conferred on the Ombudsman covers both administrative and crim. offenses. Accordingly, the Sp Pros. cannot claim that he retains the specific power of prel. investigation while conceding the general power of investigation to the Ombudsman. The greater power embraces the lesser.

(2) The fact that the informations filed by the resp. from Feb. 2, 1987, were invalid bec. they were not authorized by the Ombudsman, is not a jurisdictional defect. The Informations could have been challenged in a motion to quash under R 117, ROC on the ground of lack of authority on the part of the officer filing the same. If this ground was not invoked, it is deemed waived under Sec. 8 of the same Rule. xxx

At any rate, to settle this question, we hereby rule that the decision of this Court in this case shall be given prospective application only from April 27, 1988. xxx

To recapitulate, the Court holds that, in the interest of justice, its ruling in 4/27/88 shall apply prospectively to cases filed in Court prior to said resolution and pending trial nor to convictions or acquittals pronounced therein. The exception is where there has been a timely objection and a specific challenge, as in this case, where the Court ordered the nullification of the Info. filed for lack of authority on the part of resp. Gonzales. VV.

5. Civil Service Commission (as added by Prof. Barlongay)

UPDATED 1/16/96RAM

V. THE NATIONAL ECONOMY AND PATRIMONY

A. Goal

Art. XII, Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be

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

II Bernas: Three basic directions may be gleaned from Sec. 1: (1) it sets the goal of dynamic productivity and a more equitable distribution of what is produced; (2) it seeks complementarity bet. industrialization and agricultural devt; (3) it is protective of things Filipino. xxx

Industrialization and full employment based on sound agricultural development and agrarian reform. What is envisioned by the provision is not necessarily agriculturallyrelated industrialization but rather industrialization that is the result of releasing locked up capital through agrarian reform. xxx Moreover, the policy does not mean a hardbound rule that agricultural devt must have priority over industrialization. What is envisioned is a flexible and rational relationship bet. the 2 as dictated by the common good.

Mirasol notes:

The goals of the national economy are:

(1) A more equitable distribution of opportunities, income, and wealth.

(2) A sustained increased by the amount of goods and services produced by the nation for the benefit of the people; and

(3) An expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

B. Natural Resources

1. Citizenship Requirement

Art. XII, Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into coproduction, joint venture, or productionsharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twentyfive years, renewable for not more than twentyfive years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow smallscale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreignowned corporations involving either technical or financial assistance for largescale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

II Bernas: If natural resources, except agricultural land, cannot be alienated, how can they be explored, developed or utilized? xxx A distinction must be made bet. alienable lands and inalienable lands. Alienable lands may be the subject of lease, and the rules are found in Sec. 3. xxx Inalienable lands, however, can only be developed and utilized directly by the State or in conjunction w/ qualified individuals or corps. through "coproduction, joint venture, or productionsharing" and thus "full control and supervision of the State" is preserved.

Howsoever natural resources might be exploited or developed, the right to do so is reserved for "Filipino citizens, or corps., or associations at least sixty per centum of whose capital is owned by such citizens

Id., Sec. 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

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

Exploration, Development, and Utilization

a. All (a) lands of the public domain, (b) waters, (c) mineral oils, (d) all forces of potential energy, (e) fisheries, (f) forest or timber, (g) wildlife, (h) flora and fauna, and (i) other natural resources are owned by the State. (This is the Regalian Doctrine.)

b. All natural resources, with the exception of agricultural lands, shall not be alienated.

c. The exploration, development, and utilization or natural resources shall be under the full control and supervision of the State ( as the owner thereof.)

d. In so exploring, developing or utilizing its natural resources, the State has two options:

One, it may undertake such activities directly, or

Two, it may enter into (a) coproduction, (b) joint venture, or (c) production sharing agreement with Filipino citizens, or corporations or associations with at least 60% Filipino capital.

In the case of the second option, any such agreements are subject to the following limitations and qualifications:

(A) As to Terms and Conditions

(i) Such agreements ( for the exploration, development or utilization of natural resources excluding water rights other than the development of water power) may be for a period not more than 25 years, and under such terms and conditions as may be provided by law.

(ii) But in cases of water rights for (a) irrigation, (b) water supply, (c) fisheries, or (d) industrial uses other than the development of water power. Beneficial use may be the measure and limit of the grant.

(B) As to who may grant what privileged to whom

(i) The State shall protect the nation's (marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and shall reserve its use and enjoyment "exclusively" to Filipino citizens. (Corporations, even though owned by Filipinos are not included.)

Who State

What Marine Wealth

Whom Filipino Citizens only

(ii) The Congress may, by law, allow small scale utilization of natural resources by Filipino citizens. It may also allow cooperative fish farming with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.

Who Congress

What small scale utilization of the natural resources

Whom Filipino Citizens only

(iii) The President may enter into agreements with foreignowned corporations involving either "technical or financial assistance" for "large scale" exploration, development and utilization of (a) minerals, (b)

petroleum, (c) other mineral oils, according to the general terms and conditions provided by law. Such agreements shall (i) be based on "real" contributions to economic growth and the general welfare

of the country, and (ii) promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision within 30 days from its execution.

Who President

What minerals, petroleum, other mineral oils;

Whom foreign owned corporations

This is really "service contracts" over again. "Technically", this provision "falls" under the general rule that the State may enter into coproduction, joint venture or productionsharing agreements only which Filipino citizens or 60% Filipino corporations, since what in involved here is only "technical or financial assistance" for the exploration, development and utilization of these specific natural resources, and not the exploration, development, and utilization themselves. In reality, however, it is an exception to the general rule.

Not more than 12 hectares thereof by (i) purchase, (ii) homestead or (iii) grant, (Art. XII, Sec. 3, par I.)

The manner of acquiring alienable lands of the public domain is governed by Com. Act No. 141 (Public Land Act), which prescribes 5 ways of acquiring such lands.

Homestead

This is available to citizens, at least 18 years of age (or less if a head of the family) resident of the Philippines, and not the owner of 24 (now 12) hectares in the Philippines.

Steps for Application:

One, the application is filed with the Bureau of Lands, upon payment of a nominal filing fee.

Two, the Bureau of Lands conducts an investigation to find out if the land is alienable, if it is free from adverse claim or better rights of prior occupants, if there is possession in fact, and if the applicant has the qualifications of law. A report is then made, which is the basis for an "order of approval'.

Three, upon approval, the applicant is made practically the owner short of title. It is conditioned on the following; (a) That he enter the land within 6 months from the date of approval, if he has not yet done so; (b) That within 5 years, he must cultivate at least 20% of the land and must establish his residence on the lands itself or in the municipality where it is located and (c) That he proves compliance with the cultivation and residence requirements as well as his nonviolation of the provisions of the law, through a sworn statement known as the "final proof paper". This is submitted to the Bureau which then conducts an ocular inspection and then submits a final report.

Fourth, a favorable report gives rise to an "order of issuance of a patent". It is only at this point when his title is vested, even if the paper title is not yet in his name, or the applicant is still single at this point, or is already a widower, the property is capital. If he is married already, it is conjugal property

Public Lands

Taking into account the requirements or conservation, ecology and development are subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held or leased, and the conditions therefore. (Art. XII, Sec. 3, par 2)

Marine Wealth

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and executive economic zone. (Art. XII, Sec. 2. par 2.)

2. Classification, Size, and Conditions for Grant of Public Lands

Art. XII, Sec. 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twentyfive years, renewable for not more than twentyfive years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant.

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

II Bernas: The first rule established in Sec. 3 is that only agricultural lands of the public domain may be alienated.

The second rule is that only qualified individuals may acquire alienable lands of the public domain.The third rule establishes the size of the land w/c may be acquired by individuals or leased by

individuals or corps.The fourth rule limits the discretion of Congress to open public lands for lease or acquisition.

Disqualification of private corporations. One purpose of this constitutional prohibition is to equitably diffuse landownership or to encourage owner cultivatorship and economic family size farms and thereby prevent

the recurrence of huge land holdings by corps. or private persons. It was also aimed against undue exploitation of our public lands and natural resources by large corps.

xxx

No citizenship limitation? The impression might be given that Sec. 3 opens utilization of alienable lands to foreign individuals or foreign corps. bec. Sec. 3 makes no mention of citizenship requirement. But alienable lands are part of the natural resources and the gen. rule on the utilization of all natural resources can be found in Sec. 2. xxx Thus, the utilization of alienable lands is open only to those qualified under Sec. 2 and in the manner prescribed by Sec. 2.

Mirasol Notes:

Public Lands

a. Classification Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to which they may be devoted.

b. Alienability

With the exception of agricultural lands, all other natural resources are owned by the State. (Art. XII, Sec. 2)

Alienable lands of the public domain shall be limited to agricultural lands. (Art. XII, Sec. 3.)

If the public land is nonalienable which is the case if it is forest or timber, mineral land, or national parks, then it cannot be held by anyone. The general rule on natural resources applies and that is, that the State can only enter into coproduction, jointventures or production sharing agreements with Filipino citizens or 60% Filipino owned corporations for the exploitation, development and utilization of these lands.

But if the public land is alienable, that is, agricultural, then it may be held by a private person, natural or juridical, in accordance with the following rules.

c. Who May Hold Alienable Lands of the Public Domain

(i) Corporations: Lease

Private corporation or associations may not hold alienable lands of the public domain except by lease.

Limitations:

i. Period: Not more than 25 years, renewable for not more than 25 years.

ii. Size: Not to exceed 1,000 hectares in area.

As worded, it would seem that even foreign corporations may become the lessees of alienable lands of the public domain, because (Art. XII, Sec. 3) does not specify the 60% Filipino owned requirement. It is unlike the case for the exploration, development and utilization of natural resources other than public agricultural lands, in which the Constitution specifies the ownership requirement. Whether this is a mere oversight in a valid question, considering the nationalists intent of the Constitution, on the one hand, and the presence of anti nationalist farmers, on the other hand.

(ii) Filipino Citizens: Acquire or Lease

Citizens of the Philippines may (a) lease no more than 500 hectares, (subject to the same conditions as in Filipino corporations) or (b) not more than 12 hectares thereof by purchase, homestead or grant.

Sale or Purchase

This is available to Filipino citizens, of legal age, and not the owner of more than 12 hectares.

The land is sold at public auction to the highest bidder, even if there are applications for sale or purchase. The applicant, however, is granted "preferential rights" to purchase the land, in the following manner.

A sealed bidding is first conducted. If he is the highest bidder, the land is awarded to him. If there are 2 or more highest bids, and the bid of the applicant is one of then, he is preferred. If the applicant's bid is not among the highest, the bidding was converted into an open bidding.

In the open bidding, if the highest bid is not that of the applicant, he is asked nevertheless if he wants to watch the highest bid. If he does, he is then required to pay 10% of the price. The award is conditioned on his ability to cultivate 20% of the land within 5 years, and his payment of the 10% deposit, the balance of which is payable in 10 equal annual installments. No residence is required.

Upon compliance with these conditions, he is then entitled to a patent.

Administrative Legalization of Imperfect Title

The applicant "must (a) be a naturalborn citizen, (b) by himself of his predecessorininterest have occupied the land and cultivated it since July 4,1945 (as set by the Paredes Law of 1955) and (c) not be the owner of more than 24 (now 12) hectares. There is no age requirement.

Most unregistered lands belong to this category: public lands but with imperfect titled usually proven by

tax declaration. Since these are neither public nor private, the occupants are given the chance to perfect their title administratively, after which he can apply to have his title registered.

Judicial Confirmation of Imperfect or Incomplete Title

The applicant must (a) be a Filipino citizen, (b) have been in open, continuos, exclusive, and notorious possession of public agricultural land, under a bona fide claim of title since June 12, 1945 ( originally July 26, 1894, Further, under R.A. 1942, an applicant was entitled if he could prove 30 years of such occupation prior to filing. But this was cut off to June 12, 1945 by P.D. 1073)

The law originally allowed a total grant of 144 hectares, as against administrative legalization which granted 24 hectares. The 1987 Constitution is deemed to have limited this to 12 hectares.

Query: May corporations acquire lands of the public domain?

Answer: The rule has always been in the negative. However, the real issue is whether corporations can be the transferees of lands to which a transferor is entitled to either an administrative legalization of imperfect title or a judicial confirmation of imperfect or incomplete title, prior to the actual grant thereof in accordance with the proceedings required by the Public Land Act? In other words, can the corporation itself make application for the grant on the ground that when it acquired the land from its possessor, such possessortransferor if he applied for a grant would have qualified without doubt?

Under the present state of jurisprudence in Director of Lands V. IAC and Acme Plywood and Veneer Co...(Dec. 1986), a case involving the application for confirmation of title by Acme which possessed the land since 1961, after acquiring it from the Dumagats of Isabela who in turn possessed it since time immemorial, the answer is in the affirmative.

According to the SC, although a corporation can only hold alienable public lands by lease, it can acquire from private individuals who are citizens and had been in open, continuos, exclusive and notorious possession of alienable (or agricultural) public lands, in the concept of an owner for at least 30 years. When it does, it does not violate the Constitution provision since what it is acquiring is really already a private land.

For an individual who has satisfied the requirements under sec. 48 (b) of the Public Land Act is conclusively presumed to have performed all the acts needed for a title, and is thus entitled to the issuance of one. That individual acquires a vested right to the public land, and so, by operation of law, the land is deemed isolated from public domain and effectively becomes private land. Thus the corporation can file the title for the actual issuance of title is but a mere formality to the perfection of a right already previously acquired, accrued, and vested, upon the completion of possession for 30 years. When a corporation applies for the title, it is not acquiring public lands but merely formalizing its acquisition of a private land.

This overrules the case of Meralco V. Castro Bartolome, 114 SCRA 799 (1982), a case involving 2 residential lots of 65 sq. meters in Tanay, which Meralco bought in 1976 from one who, by himself and his predecesssors in interest, possessed the land in since 1941.

In this case, the SC ruled that if the individual in possession of the land neglected to apply to the court for confirmation of imperfect title, and in the meantime sold this land to a corporation, the corporation cannot later bring an action to confirm the imperfect title, because the land has not ceased to the public, and under the law as well as the Constitution, corporations may not acquire alienable public lands.

This also overrules Republic V. Villanueva, 114 SCRA 675 (1982), a case involving a corporation sole (INK) which applied for judicial confirmation of title for a land it acquired from one in possession for 30 years.

Meralco v. CastroBartolome, 114 SCRA 799 (1982)

Corporations May Lease But Not Acquire Public Lands

F: The Meralco, a domestic corp., applied for the confirmation of its title to 2 residential lots w/ a total land area of 165 sq m. located in Tanay, Rizal, but its application was dismissed on the ground that under the Consti. (now Art. XII, sec. 3), no pvt. corp. or asso. may hold lands of the public domain except by lease not to exceed 1,000 hectares. The lots were formerly possessed by O. Ramos in 1941. They were sold to Rafael Piguing in '47 and sold by the latter to Meralco in '76. Meralco's applic. was filed pursuant to sec. 48 (b) of the Public Land Law w/c provides that Filipino citizens, who "by themselves or through their predecessors in interest have been in continuous, exclusive, and notorious possession, and occupation of agricultural lands of the public domain, under a bona fide claim of ownership for at least 30 yrs. immediately preceding the filing of the application for confirmation of title except when prevented by war or force majeur. These shall be conclusively presumed to have performed all the conditions essential to a Govt grant and shall be entitled to a cert. of title under the provisions of this chapter."

HELD: (1) As bet. the State and Meralco, the land is still public land. It would cease to be public land only upon the issuance of the cert. of title under Sec. 48 (b) of the Public Land Law. Since Meralco is a juridical person, it is disqualified to apply for its registration. The ruling in Susi v. Razon, 48 Phil 424, to the effect that an open, continuous and adverse possession of the land from time immemorial confers on the individual and his precedessor in interest effective title does not apply here since Meralco and its predecessors in interest have not been in possession of the land since time immemorial.

(2) The argument that if Meralco's predecessorininterest can apply under Sec. 48 (b), so can the corp do the same in representation, is untenable bec. Meralco's predecessorsininterest did not acquire a vested right as they did not file an applic., w/c is a condition precedent. VV.

Republic v. Villanueva, 114 SCRA 875 (1982)

Religious Corporations Are Disqualified from Acquiring Public Lands

F: On 9/13/77, the Iglesia ni Kristo (INK) applied for registration of 2 lots, invoking the provisions of the Public Land Law:

Sec. 48. The following described citizens of the Phils., occupying the lands of the public domain or claiming to own any such lands or an interest therein, but whose titles have not been perfected or completed, may apply to the CFI of the province where the land is located for confirmation of their claims and the issuance of a cert. of title therefor under the

LRA, to wit..."(b) Those who by themselves or through their predecessors in interest have been in continuous, exclusive, and

notorious possession, and occupation of agricultural lands of the public domain, under a bona fide claim of ownership for at least 30 yrs. immediately preceding the filing of the application for confirmation of title except when prevented by war or force majeur. These shall be conclusively presumed to have performed all the conditions essential to a Govt grant and shall be entitled to a cert. of title under the provisions of this chapter."

From the decision of the CFI ordering registration of the 2 lots, the govt appealed.

HELD: The INK, as a corp. sole or a juridical person, is disqualified to acquire or hold alienable lands of the public domain, like the lots in question, bec. of the consti. prohibition mentioned and bec. the said church is not entitled to avail itself of the benefits of Sec. 48 (b) w/c applies only to Filipino citizens of natural persons. A corp. sole has no nationality.

The contention that the 2 lots are pvt. lands, following the rule laid down in Susi v. Razon is not correct. What was considered pvt. lands there was a parcel of land possessed by a Filipino citizen since time immemorial. The lots sought to be registered in this case do not fall w/in that category. They are still public lands.

"All lands that were not acquired from the Govt, either by purchase or by grant, belong to the public domain. An exception to the rule would be any land that should have been in the possession of the same occupant and of his predecessorsininterest since time immemorial, for such possession would justify the presumption that the land had never been part of the public domain or that it had been a pvt. prop. even bef. the Spanish conquest. VV.

Director of Lands v. IAC, 146 SCRA 509 (1986)

Public Lands Possessed Exclusively Becomes Private By Mere Lapse of at Least 30 Years.

F: In 1962, Acme Plywood & Veneer Co., acquired from members of the Dumagat tribe a parcel of land w/ an area of 481,390 sq. m., in Maconacon, Isabela. On 7/17/81 Acme applied for the confirmation of its imperfect title to the land, on the basis of its possession from 1962 and that of the Dumagats and the latter's ancestors, w/c was from time immemorial. The CFI ordered the registration of the land in favor of Acme. Its decision was affirmed by the IAC. However, the Director of Lands appealed to the SC on the ground that under the Consti. (now Art. XII, Sec. 3 of) Acme could not own lands of the public domain.

HELD: The Court xxx is of the view, and so holds, that the majority ruling in Meralco must be reconsidered and no longer deemed to be binding precedent. The correct rule, as enunciated in the line of cases already referred to, is that alienable land held by a possessor, personally or through his predecessorininterest openly, continuously and exclusively for the prescribed statutory period (30 yrs. under the Public Land Act, as amended) is converted to pvt. prop. by the mere lapse or completion of said period, ipso jure. The land subject of this appeal was already private property at the time it was acquired from the Infiels by Acme. Acme acquired a registrable title, there being at the time no prohibition against said corp's holding or owning pvt. land. VV.

Republic v. Court of Appeals, 155 SCRA 344 (1987)

F: In its application for registration bef. the trial court, resp. Circulo Bantayano Foundation (CBF) alleged that it is the owner in fee simple or through a possessory info. title of a parcel of land including the buildings and improvements thereon situated at Poblacion, Bantayan, Cebu through purchase on 12/5/74 from the heirs (represented by Anunciacion Escario) of the late Pedro Escario, Sr., who in turn inherited said land from his father Margarito; that the said land is assessed for taxation purposes of P7,850 for 1978; that the same is occupied and possessed openly, continuously, notoriously and peacefully in the concept of owners for more than 40 yrs. by applicant and its predecessorsininterest.

Petitioner opposed the application alleging that pvt. resp. did not have title in fee simple or imperfect title to the land and it was disqualified under the 1973 Consti., being a corp., to own lands of the public domain. xxx The trial court ruled in favor of CBF. The CA affirmed the trial court's decision. Hence, this petition for review.

ISSUE: W/n private resp. is qualified under the 1973 or the 1987 Consti. to acquire and subsequently register in its name the disputed lot.

HELD: It is true that under both the 1973 and 1987 Consti, a pvt. corp. (even if a domestic one) cannot acquire (and therefore cannot register) lands of the public domain, but in the present case, the land involved, at the time it was acquired by the corp. in 1974, was no longer part of the public domain; long years of exclusive, continuous, and adverse possession of the same by its predecessorsininterest had given ownership thereof ipso jure to said predecessors, enabling the latter to convey title to said corp. True, the Corp.'s acquisition was in 1974, or after the 1973 Consti was already in effect. But then as of that time, the land was no longer public land. It was private land. RAM.

3. Conservation of forest lands and national parks

Art. XII, Sec. 4. The Congress shall, as soon as possible determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor decrease except by law. The Congress shall provide for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas.

4. Protection of ancestral lands of indigenous cultural communities

Art. XII, Sec. 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well being.

The Congress may provide for the applicability of customary laws governing property tights or relations in determining the ownership and extent of ancestral domain.

II Bernas: The ancestral lands referred to in Sec. 5 include both those outside ant those inside autonomous regions. xxx

The phrase "ancestral domain" is a broader concept than "ancestral lands." The former includes land not yet occupied, such as deep forests, but w/c generally is regarded as belonging to a cultural region. "Ancestral

lands" are those w/c have been subjected to occupation.

C. Private Lands

1. Citizenship requirement

Who may acquire private lands by transfer or conveyance?

Art. XII, Sec. 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

II Bernas: May a Filipino private corp. acquire private land? The answer must be that pvt. corps. can still acquire private land since Sec. 7 makes capacity to acquire private land dependent on capacity to "acquire or hold lands of the public domain." The provision uses the disjunctive "or." Either capacity to acquire lands of the public domain or capacity otherwise to hold such land confers capacity to acquire private land.

Mirasol Notes:

Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease...Citizens of the Philippines may lease...or acquire...(Art. XII, Sec. 3, par 1.)

Notwithstanding the provisions of section 7, a naturalborn citizen of the Philippines who has lost his Philippines citizenship, may be a transferee of private lands, subject to limitations provided by law. (Art. XII, Sec. 8.)

As a general rule, the acquisition of private lands is limited to individuals or corporations (and associations who are qualified to acquire or holds land of the public domain). These are:

a. Citizens of the Philippines because they are qualified to both acquire and leases (hold) alienable lands under sec. 3.

b. "Private Corporations" because they are qualified to hold alienable public lands under sec. 3 by way of lease. The issue is whether the term "private corporation" is limited to 60% Filipino owned corporation, which should be the intent of the Constitution, as in the case of other natural resources. If not, then even foreign corporations can purchase private lands, not only lease alienable public lands.

All others, including aliens, cannot be the transferee or conveyee or private lands except:

a. Aliens in cases of hereditary succession (Art. XII, Sec. 7.) This is limited to compulsory and legal

succession and does not include testamentary succession, as ruled in Ramirez v. Ramirez.

b. A natural born citizen who lost his Philippine citizenship. (Art. XII, Sec. 8.) The law provides that they may own not more than 2 lots of 1000 sq. m. if urban or 2000 sq. m. if rural.

Status of contract of sale of private land to those who are not qualified to hold them.

The rulings of the SC on the issue can be summarized thus: Although the sale of private lands to aliens not allowed to acquire them is void, the vendor or his successorsininterest can no longer seek recovery if in the meantime the land has fallen into the hands of one who is not disqualified to acquire them.

Land Sold to an Alien Cannot be Recovered If in the Meantime He had Sold It to A Filipino or He Has Become a Citizen.

Godines v. Pak Luen, 120 SCRA 223 (1983)

F: Jose Godines sold a parcel of land in Jolo to Fong Pak Luen, a Chinese citizen. On 1/11/63, Pak Luen in turn sold the land to Trinidad S. Navato, a Filipino. On 9/30/66, the heirs of Godines brought suit to recover the land on the ground that the sale to Pak Luen was null and void. The CFI dismissed the case on the ground that the action has prescribed. Hence, this appeal.

HELD: The Krivenko ruling that "under the Consti aliens may not acquire private or agricultural lands including residential lands" is a declaration of an imperative constitutional policy. Consequently, prescription may never be invoked to defend that w/c the Consti. prohibits. But neither can the vendor or his heirs rely on an argument based on imprescriptibility bec. the land is now in the hands of a Filipino citizen. If the ban on aliens from acquiring not only agricultural but also urban lands is to preserve the nation's lands for future generations of Filipino, that aim or purpose would not be thwarted if in the meantime the land is sold to Filipino citizens. xxx. VV.

Yap v. Grajeda, 121 SCRA 244 (1983)

F: On April 12, 1939, Maximo Kico executed a deed of absolute Sale in favor of pet., Yap who was the a Chinese National over a residential lot in Albay. After nearly 15 years following the sale, Yap was admitted as a Filipino Citizen. On Dec 1, 1967, pet. ceded the major portion of the lot to his son who was also a Filipino citizen. Resp. vendors almost 30 years after the sale filed an action to recover the said property. The trial count ordered reconveyance declaring the sale as null & void as being violative of Sec. 5 Art. XIII 1935 Consti. being an absolute & unqualified prohibition of Aliens acquiring priv. agrilands.

ISSUE: WON the conveyance was validated or its void nature altered by the subsequent naturalization of the vendor

HELD: YES. As held in Sarosa Vda. de Busabia v. Areneo (113 SCRA 547), the mandatory provision of the

`35 Consti. is an expression of public policy to conserve lands on the Filipinos xxx. Since the litigated prop. is now in the bands of a naturalized Fil., he is no longer a disqualified vendors. As a naturalized citizen, he is constitutionally qualified to own the subject property. There would no longer be any public policy to be served in allowing recovery of prop in the band of a qualified person.

Further, as held in Vasquez v. Li Seng Grap (96 Phil. 447), "xxx if the ban on aliens from acquiring not only agricultural but also urban lands xxx is to preserve the nation's land for future generations of Filipinos, that aim or purpose would not be wasted but achieved by making lawful the acquisition of real estate by aliens who became Filipino citizens by naturalization." Adapted.

Tejido v. Zamacoma, 138 SCRA 78 (1985)

F: The appellants brought an action for the recovery of 18 parcels of land in La Carlota, Negros Occ., claiming that the conveyance of the l ands by their predecessorsininterest way back in k1926 was void bec. the person to whom they were conveyed, the late Pedro Uriarte, was a Spanish citizens. However, the trial court dismissed the case on the ground that the prohibition in 1935 Consti. against aliens holding public or pvt. lands in the Phils. took effect only on 11/15/35. Hence, this appeal.

HELD: The appeal has no merit. Bef. the effectivity of the 1935 Consti., there was no ban on aliens owning private lands in the Phils. The prohibition in Act 2874 against aliens applied only to public agricultural lands or lands of the public domain. Art. III, Sec. 5 of the 1935 Consti., w/c in effect prohibited the transfer of pvt. lands to aliens, cannot be retroactively applied to contracts in this case w/c was entered into bef. its effectivity, otherwise, the appellees would be deprived of property w/o due process of law. Moreover, since the lands are now in the hands of Filipino citizens, there is no public policy to be served by allowing the appellants to recover the lands. VV.

Moss v. Director of Lands, 80 SCRA 269 (1977)

Rights Acquired by American Citizens under the Original Ordinance to the Constitution Do Not Lapse.

F: Eugene Moss & Alber Cassidy, American nationals purchased a tenhectare island on Jan. 20, 1945 from Filipino vendors. In an action to quiet title by Moss vs. Cassidy, Moss was adjudged sole owner in a decision dated March 27, 1962. He subsequently declared the land for taxation purpose & paid realty taxes thereon. On April 3, 1965 Moss filed on application for the registration of said land w/c was denied by the TCT. holding that Moss, being an American citizen, was disqualified to acquire lands under sec. 5 Art. XIII 1935 Consti, as held in Krivenko v. Reg. of deeds.

ISSUE: WON Moss is disqualified. NO.

HELD: While aliens are disqualified to acquire lands under the 1935 Consti., citizens of the US can acquire lands like Fil. citizens. The ordinance appended to the 1935 Consti. by Resolution no. 39 of the Nat'l Assembly dated Sept. 15, 1939 & approved by the Pres. of the US on Nov. 10, 1939, provides that citizens & corps. of the US shall enjoy in the Commonwealth of the Phils. All the civil rights of the citizens & corps. respectively, thereof. This Ordinance was made part of the 1935 Consti. as directed by Sec. 2 of the TydingsMcDuffie Law.

The proclamation of Phil. Indep. on July 4, 1946 did not impair Moss' proprietary rts. over the said land bec. the 1935 Consti. provides that upon proclamation of Phil. independence, "all existing property rights of citizens or corps. of the US shall be acknowledged, respected & safeguarded to the same extent as prop. rights. of citizen of the Phils. [sec. 1(1) Art. XVII.] This was implemented on Art. VI of the Treaty of General relations bet. the US & the Phils. Adapted.

Republic v. Quasha, 46 SCRA 160 (1972)

Under the Parity Amendment to our Constitution, citizens of the United States and corporations and business enterprises owned or controlled by them can not acquire and own, save in cases of hereditary succession, private agricultural lands in the Philippines and that all other rights acquired by them under said amendment will expire on 3 July 1974.

F: Quasha, an American citizen, purchased on Nov. 26, 1954 a land with permanent improvements thereon, at Forbes Park, Makati. On March 19, 1968 he filed petition for declaration of his rights under Parity Amendment because officials of Phil. Gov't claimed that on expiration of Parity Amendment on July 3, 1974, the rights acquired by US citizens over lands will cease and be of no further force and effect. Quasha sought a declaration of his rights under the Parity Amendment, said pltff. contending that the ownership of properties during the effectivity of the Parity Amendment continues notwithstanding the termination and effectivity of the Amendment.

ISSUE: What are rights of Quasha, if any, over the land?

HELD: (1) Under Parity Amendment, Quasha could not acquire ownership of Fobres Park land because "parity" between Filipinos and Americans referred only to two matters:

(a) disposition, exploitation, dev't and utilization of agricultural, timber, and mineral lands of the public domain and other natural resources of Phils. (Sec. 1, Art. XIII '35 Consti.)

(b) operation of public utilities (Sec. 8, Art. XIV.)

xxx

No other provision of our Consti. was referred to by the "Parity Amendment"; nor Sec. 2 of Art. XIII of the 1935 Consti. limiting the maximum area of public agricultural lands that could be held by individuals or corporations or associations; nor Sec. 5 restricting the transfer or assignment of private agricultural lands to those qualified to acquire or hold lands of the public domain (w/c under the original Sec. 1 of Art. XII meant Filipinos exclusively) save in cases of hereditary succession. these sections 2 and 5 were therefore left untouched and allowed to continue in operation as originally intended by the Consti.'s framers.

(2) Assuming ownership could be acquired, all rights conferred under Parity Amendment were subject to one and the same resolutory term: they are to last during effectivity of the Exec. Agreement entered into on July 4, 1946, but in no case to extend beyond July 3, 1974.

(3) The right of Americans to acquire private agricultural lands in the Phils vanished with the advent of the Republic on July 4, 1946. The only exception is hereditary succession. Adapted.

When the case was decided in 1972, the expiration of the Parity Rights had not yet taken place. The pronouncement of JBL Reyes in this case was overtaken by the 1973 Constitution which provided that "the rights and privileges granted to citizens or corporations owned by citizens of the U.S. under the ordinances appended to the 1935 Constitution ( granting to citizens and corporations of the U.S. all the civil rights of the citizens and corporations, during the Commonwealth period) shall automatically terminate on July 3, 1974. Titles to private lands acquired by such persons before such date shall be valid as against private persons only. (Art. XVII, Sec. 11.) (Thus only the State can question such titles, A Filipino is barred from bringing and action to recover a private land he sold to an American.)

Quasha and Moss Compared. The difference between Quasha and Moss is that Moss acquired the private land during the Commonwealth period, and was thus governed by the original Ordinance appended to the 1935 Constitution, while Quasha bought the private land in 1954 during the regime of the Parity Rights.

2. Exceptions

(a) Acquisition by LEGAL Succession

PD 471

FIXING A MAXIMUM PERIOD FOR THE DURATION OF LEASES OF PRIVATE LANDS TO ALIENS

WHEREAS, the Constitution bans the acquisition by aliens and alienowned entities of public and private lands; WHEREAS, leases of unreasonably long duration would amount to a virtual transfer of ownership in violation of

the intent of the Constitutional prohibition;WHEREAS, there is a compelling need to fix a reasonable maximum period for the duration of leases or private

lands to aliens and to enforce compliance thereof by punishing violations; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested

in me by the Constitution, do hereby order and decree:

Sec. 1. The maximum period allowable for the duration of leases or private lands to aliens or alienowned corporations, associations, or entities not qualified to acquire private lands in the Philippines shall be twentyfive years, renewable for another period of twentyfive years upon mutual agreement of both lessor and lessee.

Sec. 2. Any contract or agreement made or executed in violation of this decree shall be null and void ab initio, and both parties to the agreement shall be punished by a fine of not less than five hundred nor more than one thousand pesos, or by imprisonment of from six months to one year, or both in the discretion of the court, Provided, that the president or managers and directors or trustees of corporations, associations or partnerships violating this decree shall be criminally liable in lieu thereof.

Sec. 3. This decree shall take effect immediately.

Done in the City of Manila, this 24th day of May, in the year of Our Lord, nineteen hundred and seventyfour.

Ramirez v. Vda. de Ramirez, 111 SCRA 704 (1982)

F: The appellants claim that the usufruct over real properties of the estate in favor of Wanda, who was an Austrian living in Spain, is void bec. it violates the constitutional prohibition against the acquisition of lands by aliens.

The Court a quo upheld the validity of the usufruct given to Wanda on the ground that the Consti. covers not only succession by operation of law but also testamentary succession.

HELD: We are of the opinion that the Constitutional provision w/c enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Phil. landowner in exchange for a devise of a piece of land.

This opinion, notwithstanding, we uphold the usufruct in favor of Wanda bec. a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens w/c is proscribed by the Consti. RAM.

(b) Acquisition by former NATURALBORN citizens

Art. XII, Sec. 8. Notwithstanding the provisions of Section 7 of this Article, a naturalborn citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law.

BP 185

BATASANG PAMBANSA BLG. 185

AN ACT TO IMPLEMENT SECTION FIFTEEN OF ARTICLE IV OF THE CONSTITUTION AND FOR OTHER PURPOSES.

Be it enacted by the Batasang Pambansa in session assembled:

Sec. 1. In implementation of Section fifteen of Article XIV of the Constitution, a naturalborn citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private land, for use by him as his residence, subject to the provisions of this Act.

Sec. 2. Any naturalborn citizen of the Philippines who has lost his Philippine citizenship and who has the legal capacity to enter into a contract under Philippine laws may be a transferee of a private land up to a maximum area of one thousand square meters, in the case of urban land, or one hectare in the case of rural land, to be used by him as his residence. In the case of married couples, one of them may avail of the privilege herein granted: Provided, That if both shall avail of the same, the total area acquired shall not exceed the maximum herein fixed.

In case the transferee already owns urban or rural lands for residential purposes, he shall still be entitled to be a transferee of additional urban or rural lands for residential purposes which, when added to those already owned by him, shall not exceed the maximum areas herein authorized.

Sec. 3. A transferee under this Act may acquire not more than two lots which should be situated in different municipalities or cities anywhere in the Philippines: Provided, That the total area thereof shall not exceed one thousand square meters in the case of urban lands or one hectare in the case of rural lands for use by him as his residence. A transferee who has already acquired urban land shall be disqualified from acquiring rural land, and vice versa.

Sec. 4. As used in this Act

(a) A naturalborn citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship;

(b) Urban areas shall include:

(1) In their entirety, all municipal corporations which, whether designated as chartered cities, provincial capitals or not, have a population density of at least 1,000 persons per square kilometer;

(2) Poblaciones or central districts of municipalities and cities which have a population density of at least 500 persons per square kilometer;

(3) Poblaciones or central districts (not included in 1 and 2) regardless of population size which are the following:

(a) Street pattern, i.e., network of street in either at parallel or right angle orientation;(b) At least six establishments (commercial, manufacturing, recreational and/ or personal

services); and(c) At least three of the following:

1. A town hall, church or chapel with religious services at least once a month;2. A public plaza, park or cemetery;3. A market place or building where trading activities are carried on at least once a

week; and4. A public building like a school, hospital, puericulture and health center or library.

(4) Barangays having at least 1,000 inhabitants which meet the conditions set forth in subparagraph (3) or paragraph (b) above, and in which the occupation of the inhabitants is predominantly other than farming or fishing.

(c) All other areas of the Philippines which do not meet the conditions in the preceding definition of urban areas shall be considered as rural areas.

Sec. 5. Transfer as a mode of acquisition of private land under this Act refers to either voluntary or involuntary sale, devise or donation. Involuntary sales shall include tax delinquency, foreclosures and executions of judgment.

Sec. 6. In addition to the requirements provided for in other laws for the registration of titles to lands, no private

land shall be transferred under this Act, unless the transferee shall submit to the register of deeds of the province or city where the property is located a sworn statement showing the date and place of his birth; the names and addresses of his parents, of his spouse and children, if any; the area, the location and the mode of acquisition of his landholdings in the Philippines, if any; his intention to reside permanently in the Philippines, the date he lost his Philippine citizenship and the country of which he is presently a citizen; and such other information as may be required under Section 8 of this Act.

Sec. 7. The transferee shall not use the lands acquired under this Act for any purpose other than for his residence. Violations of this section, any misrepresentation in the sworn statement required under Section 6 hereof, any acquisition through fraudulent means or failure to reside permanently in the land acquired within two years from the acquisition thereof, except when such failure is caused by force majeure, shall, in addition to any liability under the Revised Penal code and deportation in appropriate cases, be penalized for forfeiture of such lands and their improvements to the National Government. For this purpose, the Solicitor General or his representative shall institute escheat proceedings.

Any transferee liable under this section shall moreover be forever barred from further availing of the privilege granted under this Act.

Sec. 8. The Minister (now Secretary) of Justice shall issue such rules and regulations as may be necessary to carry out the provisions of this Act. Such rules and regulations shall take effect fifteen days following its publication in a newspaper of general circulation in the Philippines.

Sec. 9. If any part of this Act shall be declared unconstitutional, the remaining provisions not thereby affected shall remain in full force and effect.

Sec. 10. This Act shall take effect upon its approval.

Approved, March 16, 1982.

Read Republic v. CA, 235 SCRA 567 (1994)

3. Agrarian Reform

Art. XIII, Sec. 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of agricultural lands, subject to such priorities and reasonable retention limits as Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary landsharing.

Sec. 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers' organizations to participate in the planning, organization,

and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and other support services.

Sec. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.

The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law.

Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.

Sec. 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice.

4. Urban land reform and housing

Art. XIII, Sec. 9. The State shall by law, and for the common good, undertake in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program, the State shall respect the rights of small property owners.

Sec. 10. Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner.

No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated.

D. Lease to foreigners of private lands valid

Smith Bell & Co. v. Register of Deeds, 96 Phil 53 (1954)

E. Duration of Lease

Article 1643. In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a price certain, and for a period which may be definite or indefinite. However, no lease for more than ninetynine years shall be valid. (New Civil Code.)

F. Regulation of economic activities

1. Rationale

Socialistic Economy

Art. XII, Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.

The Constitution announces the policy of free enterprise tempered by state intervention when the common good so requires. The economic theory is one in between pure capitalism and pure socialism, with a tendency towards socialism.

Nationalistic Economy

Art. XII, Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials, and locally produced goods, and adopt measures that help make them competitive.

Art. XII, Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.

2 The NEDA and development program

Article XII, Sec. 9. The Congress may establish an independent economic planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development.

Until Congress provides otherwise, the National Economic and Development Authority shall functions as the independent planning agency of the government.

II Bernas: The 1987 Consti. has made the creation of the independent economic planning agency optional. Commissioner Villegas explained that there was a consensus in the Committee that an economic planning agency should not be constitutionalized since formal economic planning is not an indispensable part of managing the national economy. xxx Commissioner Mondsod added that "if we are going for less govt and more private sector initiative, later on it may not be necessary to have a planning agency.

Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation enterprises whose capital is wholly owned by Filipinos.

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

The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

3. Organization and regulation of private corporations

Art. XII, Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Governmentowned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

II Bernas: The purpose of the first sentence is to insulate Congress against pressures from special interests: "To permit the law making body by special law to provide for the organization or formation or regulation of pvt. corps., it was believed xxx, would in effect to offer to it the temptation in many cases to favor certain groups to the prejudice or to the prejudice of the interest of the country.

4. Operation of public utilities

Art. XII, Sec. 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporations or association must be citizens of the Philippines.

II Bernas: For the purpose of this provision, a corp. or association is considered a Filipino if: (1) it is organized under Phil. laws and (2) at least 60 % of its capital is owned by Filipino citizens.

xxxIt should be noted xxx that the Consti. does not prohibit the mere formation of a public utility corp. w/o

the required proportion of Filipino capital. xxx What it does prohibit is the granting of a franchise or other form of authorization for the operation of a public utility already in existence but w/o the requisite proportion of Filipino capital.

Sec. 17. In times of national emergency, when the public interest so requires, 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.

5. On Mass Media and Advertising Industry

A. Policy

Art. XVI, Sec. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

B. Ownership and Management of Mass Media

Sec. 11. (1) The ownership and management of mass media shall be limited to citizens of the

Philippines, or to corporations, cooperatives or associations, whollyowned and managed by such citizens.The Congress shall regulate or prohibit monopolies in commercial mass media when the public

interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. xxx

II Bernas: "Mass media" in Sec. 11 (1) includes radio, television and the printed media. It does not include commercial telecommunications w/c are governed as public utilities under Art. XII, Sec. 11.

C. Ownership of Advertising Companies

Id., (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare

Only Filipino citizens or corporations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry.

The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines.

Art. XVIII, Sec. 23. Advertising entities affected by paragraph (2), Section 11 of Article XVI of this Constitution shall have five years from its ratification to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement therein.

6. Practice of professions

Art. XII, Sec. 14. The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, highlevel technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit.

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

7. State operation of private enterprises

Art. XII, Sec. 17. In times of national emergency, when the public interest so requires, 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.

Sec. 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

8. Monopolies, combinations, and unfair competition

Art. XII, Sec. 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.

Philippine Ports Authority v. Mendoza, 138 SCRA 632 (1985)

F: In 1977, the PPA adopted a policy of allowing only one arrastre operator for every port in the Philippines. In compliance with this policy, eleven operators at the Cebu City port merged into one corporation called United South Dockhandler, Inc. However, other arrastre operators questioned the one portone operator policy and obtained from the resp. judge of RTC an injunction against the implementation of the policy. PPA appealed.

HELD: (1) The power granted to PPA under PD 857, Sec. 6(2)(v) to provide services within the port districts includes the power to adopt the policy in question. As held in AngloFil Trading v Lazaro, PPA has discretion to choose the stevedoring contractor in accordance with reasonable standards.

(2) The grant of permit to only one operator does not violate Art. XIV, Sec. 2 (now Art. XII, Sec. 10) on monopolies. Private monopolies are not necessarily prohibited. The use of the word "regulate" in the Constitution indicates that some monopolies, properly regulated may be allowed. "Competition can best regulate a free economy. Like all basic beliefs, however that principle must accommodate hard practical experience. There are areas where for special reasons the force of competition, when left wholly free, might operate too destructively to safeguard the public interest. Public utilities are an instance of that consideration." (Oleck, Modern Corporation Law, Vol. IV, p. 197). In the case at bar, the area affected is maritime transportation in the port of Cebu. The operations there of arrastre and stevedoring affect not only the city of Cebu, the principal port of the South, but also the economy of the whole country. Any prolonged disjunction of the services being rendered there will prejudice not only inter island but also international trade and commerce.

PPA's policy of integration through compulsory merger may not even be in this instance considered as promoting a monopoly because the fact of the matter is that actually USDI is comprised of the eleven port service contractors which previously used said port.

Petition granted. Orders appealed from are reversed. VV.

9. Money, banking and credit

Art. XII, Sec. 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be naturalborn Filipino citizens, of known probity, integrity and patriotism, the majority of whom shall come form the private sector. They shall also be subject to

such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions.

Until the Congress otherwise provides, the Central Bank of the Philippines, operating under existing laws, shall function as the central monetary authority.

Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of monetary authority. Information on foreign loans obtained or guaranteed by the government shall be made available to the public.

10. Cooperatives

Art. XII, Sec. 15. The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development.

II Bernas: What is contemplated here is a line agency under the Office of the Pres. and outside the jurisdiction of the DAR.

UPDATED 2/17/96RAM

IV. SOCIAL JUSTICE AND HUMAN RIGHTS

A. Social Justice Defined

Art. XIII, Sec. 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

To this end, the state shall regulate the acquisition, ownership and disposition of property and its increments.

Calalang v. Williams, 70 PHILS 726 (1940)

F: CA No. 458 authorizes Director of Public Works with the approval of the Secretary of Public Works and Comms. to promulgate rules and regulations for regulation and control of use and traffic on national roads. The Director, with approval of Secretary of Pub Works and Comm, and upon recommendation of Nat'l Traffic Commission, issued an order closing to animaldrawn vehicles certain parts of Rizal Ave. and Rosario Street. Petitioner challenges constitutionality of the Act (and order) as being an undue delegation of legislative powers.

ISSUE: W/N there is undue delegation

HELD: No. The authority delegated to Director and Secretary is not to determine what public policy demands but merely to carry out the legislative policy laid down by the Nat'l Assembly, "to promote safe transit upon and avoid obstruction on, roads and streets designated as nat'l roads" and to close them temporarily to any or all classes of vehicles "whenever the condition of the road or the traffic makes such action necessary or advisable in the public convenience or interest." The delegated power, if at all, is not the determination of what the law should be but merely the ascertainment of facts and circumstances on which the application of the law is to be predicated. This is an administrative function which must depend on discretion of another govt official to whom is confided the duty of determining whether there is proper occasion to execute the law. But the exercise of such discretion cannot be said as making the law.

ISSUE: W/N there is proper exercise of police power

HELD: Yes. The Act aims to promote safe transit, relief from traffic congestion and to avoid obstructions on nat'l roads in the interest and convenience of the public. Public welfare then lies at the bottom of the enactment of the law and the state, in order to promote the general welfare, may interfere with personal liberty, property, business and occupations.

ISSUE: W/N, as averred by the petitioner, the rules and regulations complained of infringe upon the constitutional precept regarding the promotion of social justice to insure the wellbeing and economic security of all the people. Adapted.

HELD: NO. The promotion of social justice xxx is to be achieved not through a mistaken sympathy towards any given group.

"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 the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability 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 the adoption of measures legally justifiable, or extraconstitutionally, the exercise of powers underlying the existence of all governments on the timehonored principle of salus populi est suprema lex."

B. Aspects of Social Justice

1. Labor

Art. XII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decisionmaking processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.

2. Agrarian and natural resources reform

Art. XIII, Sec. 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary landsharing.

Sec. 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers' organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial production, marketing, and other support services.

Sec. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.

The State may resettle landless farmers and farmworkers in its own agricultural estates which

shall be distributed to them in the manner provided by law.

Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.

Sec. 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice.

See Comprehensive Agrarian Reform Law of 1988 (Republic Act No. 6657 and Executive Order No. 229, July 22, 1987.)Association of Small Landowners of the Philippines v. Secretary of Agrarian Reform, 175 SCRA 343 (1989) F: PD No. 27 was promulgated along with martial law to provide for the compulsory acquisition of private lands for distribution among tenant farmers and to specify maximum retention limits for landowners.

On July 17, 1987, Pres. Aquino issued EO No. 228 declaring full land ownership in favor of the beneficiaries of PD 27 and providing for the valuation of still unvalued lands covered by the decree as well as the manner of their payment. This was followed by Proclamation No. 131, instituting a comprehensive agrarian reform program, and EO No. 229 providing the mechanics for its implementation.

Subsequently, after its formal organization, Congress enacted RA 6657 known as the Comprehensive Agrarian Reform Law. This law gives the previous enactments suppletory effects inosfar as they are not inconsistent with its provisions.

These 4 cases are consolidated questioning the constitutionality of the above laws.

ISSUE: The doctrine of judicial supremacy.

HELD: Although regarded as the weakest of the 3 departments of the govt, the judiciary is nonetheless vested with the power to annul the acts of either legislative or executive or both when not conformable to the fundamental law. This is the reason for the socalled judicial supremacy. xxx The doctrine of separation of powers imposes upon the courts a proper restraint, born of the nature of their functions and of their respect for the other departments, in striking down the acts of the legislative and the executive as unconstitutional. xxx The theory is that before the act was done or the law was enacted, earnest studies were made by Congress or the President, or both, to insure that the Constitution would not be breached.

ISSUE: Essential requisites of a judicial inquiry into a constitutional question.

HELD: There must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination; the constitutional question must have been opportunely raised by the proper party; and the resolution of the question is unavoidably necessary to the decision of the case itself. All these requirements were met in this case.

ISSUE: The power of Pres. Aquino to promulgate Procl. No. 131 and EO's 228 and 229.

HELD: Such power was authorized under sec. 6 of the Transitory Provisions of the 1987 Constitution. The said measures were issued by Pres. Aquino before Congress was formally convened and took over legislative power from her. A statute does not ipso facto become inoperative simply because of the dissolution of the legislature that enacted it. By the same token, Pres. Aquino's loss of legislative power did not have the effect of invalidating all the measures enacted by her when and as long as she possessed it. Moreover, Congress has substantially affirmed the challenged measures and has specifically provided that they are suppletory to RA 6657.

ISSUE: W/N the creation of the 50B peso fund under Procl. No. 131 and EO 229 does not conform to the requirements of a valid appropriation as specified in the Constitution.

HELD: Procl. No. 131 is not an appropriation measure even if it does provide for the creation of said fund, for that is not its principal purpose. An appropriation law is one the primary purpose and specific purpose of which is to authorize the release of public funds from the treasury. The creation of the fund is only incidental to the main objective of the proclamation, which is agrarian reform.

ISSUE: As to invalidity of Procl. 131 and EO 229 because of the lack of retention limits as required by the Consti.

HELD: RA 6657 does provide for such retention limits now in sec. 6 of the law.

ISSUE: W/N EO 229 violates the constitutional requirement that a bill shall have only one subject, to be expressed in the title.

HELD: NO. The title of the bill does not have to be a catalogue of its contents and will suffice if the matters embodied in the text are relevant to each other and may be inferred from the title.

ISSUE: Police power and Power of eminent domain.

HELD: Recent trends 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 like the power of taxation.

To the extent that the measures under challenge merely prescribe retention limits for landowners, there is an exercise of the police power for the regulation of private property in accordance with the Constitution. But where, to carry out such regulation, it becomes necessary to deprive such owners of whatever lands they may own in excess of the maximum area allowed, there is definitely a taking under the power of eminent domain for which payment of just compensation is imperative. The taking contemplated is not a mere limitation of the use of the land but requires the surrender of the title to and physical possession of the said excess and all beneficial rights accruing to the owner in favor of the farmerbeneficiary. This is definitely an exercise of the power of

eminent domain.

ISSUE: W/N there is a denial of equal protection because of the absence of retention limits.

HELD: This has become academic because of sec. 6 of RA 6657.

ISSUE: W/N the requisites for a valid classification has been violated. (The small farmers and sugar planters claim they belong to a particular class with particular interests of their own.)

HELD: NO. No evidence have been submitted that the requisites for a valid classification has been violated. Classification has been defined as the grouping of persons or things similar to each other in certain

particulars and different from each other in these same particulars. To be valid, it must conform to the ff. requirements:

(1) it must be based on substantial distinctions;(2) it must be germane to the purposes of the law;(3) it must not be limited to existing conditions only;(4) it must apply equally to all the members of the class.

All these requirements have been met by the measures.Equal protection simply means that all persons or things similarly situated must be treated alike both as

to the rights conferred and the liabilities imposed. The petitioners have not shown that they belong to a different class entitled to a different treatment

ISSUE: Power of Eminent Domain.

HELD: Eminent domain is an inherent power of the State that enables it to forcibly acquire private lands intended for public use upon payment of just compensation to the owner. It is only where the owner is unwilling to sell or cannot accept the price or other conditions offered by the vendee, that the power of eminent domain will come into play to assert the paramount authority of the State over the interests of the property owner. Private rights must then yield to the irresistible demands of the public interest on the timehonored justification that the welfare of the people is the supreme law.

However, the power of eminent domain is not absolute. The limitation is found in the constitutional injunction that "private property shall not be taken for public use without just compensation." Basically, the requirements for a proper exercise of the power are:

(1) Public use and(2) just compensation

(1) As to the requirement of public use:

It is not correct to say that only public agricultural lands (as argued by petitioners) may be covered by the CARP as the Constitution calls for "the just distribution of all agricultural lands." In any event, the distribution to distribute private agricultural lands under the CARP was made by the legislative and executive departments in the exercise of their discretion.

The purposes specified in PD 27, Procl. 131 and RA 6657 are only an elaboration of the constitutional

injunction that the State adopt the necessary measures "to encourage and undertake the just distribution of all agricultural lands to enable farmers who are landless to own directly or collectively the lands they till. That public law is binding on us."

(2) As to the requirement of just compensation:

There is compensable taking when the ff conditions concur:(a) the expropriator must enter a private property;(b) The entry must be for more than a momentary period;

(c) the entry must be under a warrant or color of legal authority; (d) the property must be devoted to public use or otherwise informally appropriated or injuriously affected; and (e) the utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property.

All these requisites are envisioned in the questioned measures.

ISSUE: W/N the manner of fixing the just compensation is entrusted to the administrative authorities in violation of judicial prerogatives.

HELD: NO. The determination of just compensation is a function addressed to the courts of justice and not to be usurped by any other branch or official of the govt.

Sec. 16(d) of the CARP Law shows that although the proceedings are described as summary, the landowner and other interested parties are allowed an opportunity to submit evidence on the real value of the property. The determination of the just compensation by the DAR is not final and conclusive upon the landowner or any other interested party. The determination by the DAR is only preliminary unless accepted by all parties concerned. Otherwise, the courts of justice will still have the right to review with finality the said determination in the exercise of what is admittedly a judicial function.

ISSUE: W/N sec. 18 of RA 6657, which provides for the valuation and mode of compensation is unconstitutional insofar as it requires the owners of the expropriated properties to accept just compensation therefor in less than money, which is the only medium of payment allowed.

HELD: NO. The traditional medium for the payment of just compensation is money and no other. However, we do not deal here with the traditional exercise of the power of eminent domain. This is not an ordinary expropriation where only a specific property of relatively limited area is sought to be taken by the State from its owner for a specific and perhaps local purpose. What we deal with here is a revolutionary expropriation.

The expropriation before us affects all private agricultural lands wherever found and of whatever kind as long as they are in excess of the maximum retention limits. This kind of expropriation is intended not only for the benefit of a particular community but the entire Filipino nation. Finally, it is no less than the Constitution itself that has ordained this revolution in the farms, calling for "a just distribution" among the farmers of lands.

Such a program will involve hundreds of billions of pesos which amount will not even be fully available at this time. It can therefore be assumed that the intention of the framers of the Constitution was to allow such manner of payment as is now provided for by the CARP Law, particularly the payment of the balance (if the

owner cannot be paid fully in money), or of the entire amount of the just compensation, with other things of value.

Accepting the theory that payment of just compensation is not always required to be made fully in money, the SC finds that the proportion of cash payment to the other things of value constituting the total payments, as determined on the basis of the areas of the lands expropriated, is not unduly oppressive upon the landowner.

The other modes available to the landowner at his option, are also not unreasonable because payment is made in shares of stock, LBP bonds, other properties or assets, tax credits, and other things of value equivalent to the amount of just compensation.

ISSUE: W/N the landowner is divested of his property even before actual payment to him in full of just compensation, in contravention of a wellaccepted principle of eminent domain.

HELD: NO. It is true that PD 27 expressly ordered the emancipation of tenantfarmer as of Oct. 21, 1972 and declared that he shall "be deemed as owner" of a portion of land consisting of a familysized farm except that "no title to the land owned by him was to be actually issued to him unless and until he had become a fullpledged member of a duly recognized farmers' cooperative. It was understood however, that full payment of the just compensation also had to be made first, conformably to the constitutional requirement.

When EO 228 stated in its Sec. 2 that "All qualified farmer beneficiaries are now deemed full owners as of Oct. 21, 1972 of the land they acquired by virtue of PD 27" it was obviously referring to land already validly acquired under the said decree, after proof of membership in the farmers' cooperatives and full payment of just compensation. Hence, it was also proper under sec. 2 that the "lease rentals paid to the landowner by the farmerbeneficiary after Oct. 21, 1972 (pending transfer of ownership after full payment of just compensation), shall be considered as advance payment for the land.

The Carp Law conditions the transfer of possession and ownership of the land to the govt on receipt by the landowner of the corresponding payment or the deposit by the DAR of the compensation in cash or LBP bonds with an accessible bank. Until then, the title also remains with the landowner. No outright change of ownership is contemplated either. Adapted.

3. Urban Land Reform And Housing

Art. XIII, Sec. 9. The State shall by law, and for the common good, undertake in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program, the State shall respect the rights of small property owners.

Sec. 10. Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner.

No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated.

See PD No. 1517, June 11, 1978.

4. Health

Sec. 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

Sec. 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country's health needs and problems.

Sec. 13. The State shall establish a special agency for disabled persons for their rehabilitation, selfdevelopment and selfreliance, and their integration into the mainstream of society.

5. Women

Sec. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.

C. People's Organizations

Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means.

People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure.

Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decisionmaking shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.

D. Human Rights

Art. XIII, Sec. 17. (1) There is hereby created an independent office called the Commission on

Human Rights.(2) The Commission shall be composed of a Chairman and four Members who must be natural

born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law.

(3) Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers.

(4) The approved annual appropriations of the Commission shall be automatically and regularly released.

Sec. 18. The Commission on Human Rights shall have the following powers and functions:(1) Investigate, on its own or on complaint by any party, all forms of human rights violations

involving civil and political rights;(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations

thereof in accordance with the Rules of Court;(3) Provide appropriate legal measures for the protection of human rights of all persons within

the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;(5) Establish a continuing program of research, education, and information to enhance respect for

the primacy of human rights;(6) Recommend to the Congress effective measures to promote human rights and provide for

compensation to victims of violations of human rights, or their families;(7) Monitor the Philippine Government's compliance with international treaty obligations on

human rights;(8) Grant immunity from prosecution to any person whose testimony or whose possession of

documents or other evidence is necessary or convenient to determine the truth in any investigation conduced by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the performance of its functions;

(10) Appoint its officers and employer in accordance with law; and(11) Perform such other duties and functions as may be provided by law.

Sec. 19. The Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendations.

VII. ESTACS (Education, Science, Technology, Arts, Culture and Sports)

A. Education

1. Right To Education

Art. XIV, Sec. 1. The state shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all.

In Villar v. TIP, 135 SRCA 706 (1985), SC said that while the right to college education is a social, economic, and agricultural right, it is available only "on the basis of merit", as provided, in Art. 26 of the Declaration of Human Rights. Accordingly, the refusal of admission of student activities with marked academic deficiencies (failure in certain subjects) is valid; but the refusal to those who, without incurring deficiencies, were just exercising their constitutional right of free speech and peaceable assembly, is unjustified.

In Tangonan v. Cruz Pano, 137 SCRA (1985), the SC ruled that part of the right of academic (institutional freedom is the right of institutions of higher learning to decide for itself how best to attain the search for truth, which includes the choice of students, free from outside coercion or interference, save possibly when the overriding public welfare calls for some restraint. Thus, it upheld the refusal of the Capitol Medical Center School for Nursing to admit petitioner for her failure in Psychiatric Nursing, which subject she failed to take up in another school when she tried to bribe the Dean in that school.

Villar v. TIP, 136 SCRA 706 (1985)

F: The petitioners were students of the Technological Institute of the Phils. (TIP). They filed an action for certiorari and prohibition, alleging that the TIP had denied them enrollment bec. of their involvement in student demonstrations and activism. On the other hand, the TIP claimed that the students were denied enrollment bec. of academic deficiencies. Their records showed that Rufino Salcon and Remeo Guilatco each failed in 1 subject in the first semester of the SY 19841985. Venecio Villar failed in 2 subjects in the first sem of SY 19831984. Inocencio Recitis passed all subjects in the first sem of 19831984 but failed 1 subject in the 2nd sem. of that year and the next year he had 2 failing grades. On the other hand, Noverto Barreto failed in 5 subjects in the 1st sem of SY 19831984 and in year 19841985, he again failed in 6 subjects. Edgardo de Leon had 3 failing grades in the 1st sem of the SY 19841985. Regloban Laxamana had 5 failing grades and no passing grade in the 1st sem of the 19841985 SY. VV.

ISSUE: W/N the exercise of the freedom of assembly on the part of certain students of resp. TIP could be a basis for their being banned from enrollment.

HELD: NO. As in Reyes v. Bagatsing, the invocation of the right to freedom of peaceable sassembly carries w/ it the implication that the right to full speech has also been disregarded. Both are embraced in the concept of freedom of expression w/c is the liberty to discuss publicly & truthfully, any matter of public interest w/o censorship or punishment & w/c is not to be limited nor denied except on a showing of a clear & present danger of a substantive evil that the state has a right to prevent.

The academic freedom enjoyed by "institutions of higher learning "includes the right to set academic standards to determine under what circumstances failing grades suffice in expulsion of students. However, it cannot be utilized to discriminate against those students who exercise this constitutional rights to peaceable assembly & full speech. If it does so, then there is a legitimate guidance by the students prejudiced, their right

to the equal protection clause being disregarded.

ISSUE: W/N the constitutional provision as to the state maintaining "a system of full public elem. educ. & in areas where finances permit, est. & maintain a system of the pub. educ. up to high school level excludes the exercise of that it in colleges & universities.

HELD: The Constitutional provision does not per se exclude the exercise of that right. in colleges & universities. It is only at the most a reflection of the lack of sufficient funds for such a duly to be obligatory in the case of students in colleges & Universities. As far as the right itself is concerned, Art. 26 of the Universal Declaration of HRs provides: "Everyone has the right to education. Educ. shall be full at the least in the elem. & fundamental stages. xxx Technical & professional educ. shall be made generally available & higher educ. shall be equally accessible to all on the basis of merit."

Hence, to that extent, there is justification for excluding 3 of the pets. bec. of their marked academic deficiency. Adapted.

Right to quality education available only on the basis of merit. While the right to college education is a social, economic and cultural right, it is available only "on the basis of merit," as provided in Art. 26 of the Declaration of Human Rights. Accordingly, bec. of marked academic deficiency, the denial of enrollment to Barreto, De Leon and Laxamana was justified. However, w/ regard to Villar, Salcon, Guitlatco and Recitis, the refusal of the TIP to allow them to enroll was unjustified. They could not be expelled for exercising their constitutional right of free speech and peaceable assembly. As J. Fortas said, students do not shed their constitutional rights at the schoolhouse gate. VV.

Tangonan v. Cruz Pano, 137 SCRA 245 (1985)

F: Petitioner brought suit for mandamus to compel the Capitol Medical Center School of Nursing to admit her for the academic year 19761977. She had been previously provisionally admitted the previous schoolyear, but she failed in Psychiatric Nursing. She tried to take the course again in another school, but she was refused admission bec. she tried to bribe the dean of the school. When she tried to reenrol at the Capitol Medical Center, she was denied admission. She brought the matter on certiorari. VV. ISSUE: WON the school can be compelled by the court to readmit petitioner. NO.

HELD: Any duty on the part of the school to enrol pet. is not merely a ministerial duty but one w/c involves the exercise of discretion not compellable by Mandamus. Capitol was perfectly justified in refusing to admit her, its refusal (being) sanctioned by the Manual of Regulations of Priv. Schools w/c considers academic delinquency & violation of disciplinary regulations as valid grounds for refusing enrollment of a student. Adapted.

Further, to grant relief to pet. would be doing violence to the academic freedom enjoyed by Capitol enshrined under Act. XV sec. 8 (2) Consti. Academic freedom includes not only the freedom of professionally qualified persons to inquire, discover, publish & teach the truth as they see it in the field of their competence subject to no control or authority except of rational methods by w/c truths and conclusions are sought and established in these disciplines, but also the right of the school or college to decide for itself how best to attain them the grant being to institutions of higher learning free from outside coercion or interference save possibly

when the overriding public welfare calls for some restraint. It has a wide spread of autonomy certainly extending to the choice of students. Said constitutional provision is not to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose and nullify its intent. VV.

2. Educational mandate of the state

Art. XIV, Sec. 2. The state shall: (1) Establish, maintain, and support a complete, adequate, and integrated system of education, relevant to the needs of the people and society;

(2) Establish and maintain a system of free public education in the elementary and high school levels. Without limiting the natural right of parents to reach their children, elementary, education is compulsory for all children of school age;

(3) Establish and maintain a system of scholarship grants, student loan program, subsidies, and other incentives, which shall be available to deserving students in both public and private schools, especially to the underprivileged;

(4) Encourage nonformal, informal, and indigenous learning systems, as well as selflearning, independent, and out ofschool study programs, particularly to those that respond to community needs; and

(5) Provide adult citizens, the disabled, and outofschool youth with training in civics, vocational efficiency, and other skills.

(6) Sec. 5. (1) The State shall take into account regional and sectoral needs and conditions, and encourage local planning in the development of educational policies and programs.

(7) Sec. 5. (5) Assign the highest budgetary priority to education, and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment.

(8) Sec. 5. (2) Adademic freedom shall be enjoyed in all institutions of higher learning.

Academic freedom is the right of the faculty to pursue, investigate, and publish in his field of inquiry, without fear of ecclesiastical, civil, or political reprisal, except only the judgment of his competence by his own peers. Institutional autonomy is the right of the institution of higher learning to set it own policies on how to achieve its educational goals.

(9) Sec. 5. (3) Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable and academic requirement.

(10) Sec. 5. (4) The State shall enhance the right of teachers to professional advancement. Nonteaching academic and nonacademic personnel shall enjoy the protection of the State.

University of the Philippines v. Ayson, 176 SCRA 571 (1989)

F: Sometime in 1972, the UP Board of Regents approved the establishment of UP College of Baguio High School (UPCBHS) as part of the graduate program in education to serve as a laboratory and demonstration school for prospective teachers provided that it be a selfsupporting unit and should not entail any subsidy from the budget of UP. xxx

xxx In 1989, the UP Board of Regents approved the phaseout of UPCBHS as UPCB does not offer programs in education thus the purpose for which it was created was not served and it was not selfsupporting. The principal of UPCBHS filed an injunction with RTC Baguio which was granted. MFR by UP denied hence, this petition.

ISSUE: Is secondary public education demandable in an institution of higher learning such as the Univ. of the Phils.? (Academic freedom [Art. XIV sec. 5(2)] vs. right to free public secondary education [Art. XIV sec. 2(2)]

HELD: We rule in the negative. It is beyond cavil that UP, an institution of higher learning, enjoys academic freedom the institutional kind.

Scope of academic freedom as recognized in the Constitution. It is the business of a university to provide that atmosphere w/c is most conductive to speculation, experimental and creation. It is an atmosphere in w/c there prevails the 'four essential freedoms' of a university to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.

RA 6655 (Free Public Secondary Education Act of 1988), includes in its coverage state colleges and universities offering secondary courses. xxx At this juncture, it must be pointed out that the UPCBHS was established subject to a number of conditionalities, e.g., it must be selfsupporting, it can serve as a feeder for the UP at Baguio, it can serve as a laboratory and demonstration school for prospective teachers, failing in w/c the University can order its abolition on academic grounds, specially where the purpose for w/c it was established was not satisfied.

UP was created under its charter (Act 1870) to provide advanced tertiary and not secondary education. Sec. 2 of Act 1870 states that "the purpose of UP shall be to provide advance instruction in literature, philosophy, the sciences and arts, and to give professional and technical training." It is apparent that secondary education is not the mandated function of UP; consequently, it can validly phase out or abolish UPCBHS especially so when the requirements for its continuance have not been met, RA 6655 (Free Public 2ndary Education Act of 1988) notwithstanding.

xxxRA 6655 implements the policy of the State to provide free public secondary education and vests the

formulation of a secondary public education curriculum, the nationalization of public secondary schools and the implementation of the rules and regulations thereof upon the Sec. of DECS. xxx However, this mandate is not directed to institutions of higher learning like UP but to govt through the DECS. As an institution of higher learning enjoying academic freedom, UP cannot be compelled to provide for secondary education. However, should UP operate a high school in the exercise of its academic freedom, RA 6655 requires that the students enrolled therein "shall be free from payment of tuition and other school fees." RAM.

Alcuaz v. PSBA, 178 SCRA 135 (1989)

F: Tamayo, Encarnacion & Magtalas, teachers from PSBA, were dismissed from work due to findings of the investigation that they participated in the unlawful demonstration. They allege that they have been arbitrarily and wantonly terminated.

HELD: NO, they were not. Full time teachers who have rendered satisfactory service for 3 yrs. are considered permanent and thus can nor be removed from office except for just cause and after due process. Although Tamayo has served for 3 1/2 yrs., his services can not be deemed satisfactory as he participated in the unlawful demonstration. The other two have only served for 2 1/2 yrs. Thus, validly terminated. The Court respects the right of the students to resort to rallies and demonstrations for the redress of their grievances and as part of their freedom to speech and to assemble. However, such rallies and demonstrations and assemblies should be conducted peacefully and without resort to intimidation, coercion and violence. Academic freedom in all its forms, demands the full display of discipline. To hold otherwise would be to subvert freedom into degenerate license. Adapted.

Guingona v. Carague, 196 SCRA 221 (1991)

F: Under Pres. Aquino's administration, Petitioners Senators Guingona & Pimentel question the Constitutionality of the automatic appropriations for debt service in the amount of P86.8 B in the 1990 budget. The said automatic appropriation for debt service is authorized by PD 81, PD 1177 & PD 1967, all promulgated by former Pres. Marcos.

PD 1177, Sec. 31 Automatic appropriations. All expenditures for principal & interest on public debt, national govt guarantees of obligations w/c are drawn upon, are automatically appropriated provided that no obligations shall be incurred or payments made from funds thus authomatically appropriated except as issued in the form of regular budgetary allotments.

PD 1967, Sec. 1. There is hereby appropriated, out of any funds in the National Treasury not otherwise appropriated such amounts as may be necessary to effect payments on foreign or domestic loans xxx

Petitioners seek the declaration of the unconstitutionality of PD 81, Sec. 31 of PD 1177 and PD 1967. Adapted.

ISSUE: Is the appropriation of P86 Billion in the P233 Billion of 1990 budget violative of Sec. 5, Art. XIV of the Constitution?

HELD: While it is true that under Sec. 5 (5), Art. XIV of the Consti., Congress is mandated to "assign the highest budgetary priority to education" in order to "insure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment," it does not thereby follow that the hands of the Congress are so hamstrung as to deprive it the power to respond to the imperatives of the national interest and for the attainment of other state policies or objectives.

As aptly observed by respondents, since 1985, the budget for education has tripled to upgrade and improve the facility of the public school system. The compensation for teachers has been doubled. The amount set aside for the DECS under the General Appropriations Act is the highest budgetary allocation among all department budgets. This is clear compliance w/ the aforesaid constitutional mandate according highest priority to education.

Having faithfully complied therewith, Congress is certainly not w/o any power, guided only by its good

judgment, to provide an appropriation, that can reasonably service our enormous debt, the greater portion of w/c was inherited from the previous administration. It is not only a matter of honor and to protect the credit standing of the country. More especially, the very survival of our economy is at stake. RAM.

3. The Educational System

Article XIV, Section 3. (1) All educational institutions shall include the study of the Constitution as part of the curricula.

(2) They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.

(3) At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

State Supervision

Sec. 4. (1) The State recognizes the complementary, roles of public and private institutions in the educational system, and shall exercise reasonable supervision and regulation of all educational institutions.

Requirements for Educational Institutions

Sec. 4. (2) Educational institutions other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippine citizens or corporations or associations at least sixty percentum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall be vested in Filipinos.

No educational institution shall be established exclusively for aliens, and no group of aliens shall comprise more than onethird of the enrollment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents, and unless otherwise provided by law, for other foreign temporary residents.

(In general, then, there are 3 requirements for any educational institution: (1) ownership, (2) management, and (3) student population. In the case of schools for foreign diplomats, and foreign temporary residents, however, these 3 requirements are dispensed with)

Taxation of Educational Institutions

Sec. 4. (3) All revenues and assets of nonstock, nonprofit educational institutions used actually directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law.

Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions, subject to such limitations provided by law, including restrictions on dividends and provisions for reinvestment.

All lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. [Art. VI, Sec. 28(3)]

Art. XIV, Sec. 4(3), a new provision, refers to income tax (revenues) and property tax (assets), Art. VI, Sec. 28 (3), an old provision, refers only to real property tax (lands, buildings, and improvements).

A) Educational institutions, whether nonstock and nonprofit or proprietary, whether sectarian or secular fall under Art. VI, Sec. 28(3) and are exempt from real property tax.

But additionally if an educational institution is nonstock and nonprofit, whether it is sectarian or secular, it falls under Art. XIV, Sec. 4(3), and so is exempt from taxes on its revenues and, assets (assuming that these are actually, directly, and exclusively used for educational purposes).

If it is proprietary, it would fall under Art. VI, Sec. 28 (3) and Art. XIV, Sec. 4 (3), par. 2. This means that it may be entitled to certain exemptions by law, but it is always exempt from real property tax on its lands, buildings and improvements actually, directly and exclusively for educational purposes.

Sec. 4. (4) Subject to conditions described by law, all grants, endowments, donations or contributions used actually, directly, and exclusively for educational purposes shall be exempt from tax.

This refers to donor's and gift taxes made out to educational institutions. Whether nonstock and nonprofit or proprietor/sectarian or secular, so long as the property is actually, directly, and exclusively used for educational purposes.

Mandates of Educational Institutions

(1) Include the study of the constitution as part of the curricula. [Art. XIV, Sec. 3(1)]

(2) Develop the total person through the following:

(Nationalistic Mandates)

(a) Inculcate patriotism and nationalism, (b) foster love of humanity, (c) (foster) respect for human rights, (d) (foster) appreciation of the roles of national heroes in the historical development of the country, (e) teaches the rights and duties of citizenship.

(MoralSpiritual Mandates)

(f) Strengthen ethical and spiritual values, (g) develop moral character and personal discipline.

(Intellectual Mandates)

(h) Encourage critical and creative thinking, (i) broaden scientific and technological knowledge, and (j) promote vocational efficiency. [Art. XIV, Sec. 3 (2)]

(3) Allow the teaching of religion in public elementary and high schools at the option expressed in writing by the parents or guardians to their children or wards within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the government. [Id., Sec. 3(3)]

This is the first time that this is allowed by the constitution. Under the Administrative Code, the teaching of religion was allowed, but only outside of class hours. If we view this provision with Art. 359 of the Civil Code which allows the integration of religion in the curriculum upon certain conditions, then students may now even be graded and may fail their religion subjects.

(4) Undertake regular sports activities in all educational institutions throughout the country in cooperation with athletic clubs and other sectors. [Art. XIV, Sec. 19(2)]

B. Language

Article XIV, Sec. 6. The national language of the Philippines is Filipino. As it evolves, it shall be further developed and enriched on the basis of existing Philippine and other languages.

Subject to provisions of law and as the Congress may deem appropriate, the Government shall take steps to initiate and sustain the use of Filipino as a medium of official communication and as language of instruction in the educational system.

Sec. 7. For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English.

The regional languages are the auxiliary official languages in the regions and shall serve as auxiliary media of instruction therein.

Spanish and Arabic shall be promoted on a voluntary and optional basis.

Sec. 8. This Constitution shall be promulgated in Filipino and English and shall be translated into major regional languages, Arabic, and Spanish.

Sec. 9. The Congress shall establish a national language commission composed of representatives of various regions and disciplines which shall undertake, coordinate, and promote researches for the development, propagation, and preservation of Filipino and other languages.

1. National Language: Filipino2. Official Languages: Filipino and English3. Auxiliary official languages: Regional Languages4. Voluntary and optional languages: Spanish and Arabic

The Congress shall establish a national language commission composed of representatives of various regions and disciplines which shall undertake, coordinate, and promote researches for the development, propagation, and preservation of Filipino and other languages. (Art. XIV, Sec. 4.)

C. Science and Technology

Policy

Art. XIV, Sec. 10. Science and technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, and services. It shall support indigenous, appropriate and selfreliant scientific and technological capabilities and their application to the country's productive systems and national life.

Incentives

Sec. 11. The Congress may provide for incentives including tax, deduction, to encourage private participation in program of basic and applied scientific research. Scholarships, grantsinaid, or other forms of incentives, shall be provided to deserving science students, researchers, scientists, inventors, technologists, and specially gifted citizens.

Technology transfer

Sec. 12. The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage the widest participation of private groups, local governments, and communitybased organizations in the generation and utilization of science and technology.

Intellectual Property

Sec. 13. The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens, to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.

D. Arts and Culture

Guiding policy

Sec. 14. The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture, based on the principle of unity in diversity in a climate of artistic and intellectual expression.

Arts and Letters

Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as well as artistic creations.

National treasures

Sec. 16. All the country's artistic and historic wealth constitutes the cultural treasure of the national and shall be under the protection of the State which may regulate it's disposition.

Indigenous Cultures

Sec. 17. The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of nation plan and policies.

Cultural opportunities

Sec. 18. (1) The state shall ensure equal access to cultural opportunities through the educational system, public or private cultural entities, scholarship, grants, and other incentives and community cultural centers, and other public venues. (2) The state shall encourage and support researches and studies on the arts and culture.

E. Sports

Sec. 19. (1) The state shall promote physical education, and encourage sports program, league competitions, and amateur sports, including training for international competitions, to foster selfdiscipline, teamwork, and excellence for the development of a healthy and alert citizenry.

(2) All educational institutions shall undertake regular sports activities throughout the country in cooperation with athletic clubs and other sectors.

VII. GENERAL PROVISIONS

A. On the flag

Article XVI, Sec. 1. The flag of the Philippines shall be red, white and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law.

Act No. 2928, March 26, 1920, An Act to Adopt An Official Flag for The Government of the Philippine Islands, Prescribing The Rules for Its Use, And Provide Penalties for The Violations of Said Rules.

Texas v. Johnson, 491 US 397 (June 21, 1989)

Flag burning when done to express dissent is protected speech.

F: Respondent Johnson participated in a political demonstration where he burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute which (1) prohibited the desecration of, among other things, a state or national flag, and (2) defined desecration as the physical mistreatment of such objects in a way which the actor knows will seriously offend one or more persons likely to observe or discover the act. A state court of appeals affirmed. The Court of Criminal Appeals of Texas reversed, holding that the desecration statute as applied violated the defendant's right to freedom of speech under the Federal Constitution's First Amendment, because the statute (1) was too broad for First Amendment purposes as it related to breaches of the peace, and (2) was not adequately supported by the state's purported interest in preserving a symbol of unity.

ISSUE: Whether the flag desecration statute is unconstitutional

HELD: YES. Decision Affirmed. Johnson's conviction was inconsistent with the First Amendment under the particular circumstances because (1) Johnson's conduct was sufficiently imbued with elements of communication to implicate the First Amendment, given that this flag burning was the culmination of a political demonstration and that the state conceded that the protester's conduct was expressive; (2) the state's interest in preventing breaches of the peace was not implicated on the record in this case, since (a) no disturbance of the peace actually occurred or threatened to occur because of the flag burning, (b) it cannot be presumed that an audience which takes serious offense at a particular expression is necessarily likely to disturb the peace, and (c) the flag burning does not fall within the small class of "fighting words" that are likely to provoke the average person to retaliation and thereby cause a breach of the peace; and (3) the state's asserted interest in preserving the flag as a symbol of nationhood and national unity does not justify the conviction, since (a) the attempted restriction on expression is contentbased, and thus subject to the most exacting scrutiny, given that the flag desecration statute is aimed not at protecting the physical integrity of the flag in all circumstances, but only against impairments that would cause serious offenses to others and is aimed at protecting onlookers from being offended by the ideas expressed by the prohibited activity, and (b) although the state has a legitimate interest in encouraging proper treatment of the flag, it may not foster its own view of the flag by prohibiting expressive conduct relating to it and by criminally punishing a person for burning the flag as a means of political protest.

Rehnquist, White, O'Connor, JJ., Dissenting Opinion:

(1) The Texas statute is not invalid under the First Amendment as applied in this case, because (a) the American Flag has come to be the visible symbol embodying our nation and is not simply another idea or point of view competing for recognition in the marketplace of ideas, and the public burning of the American flag in this case was no essential part of any exposition of ideas and had a tendency to incite a breach of the peace; and (2) the statute is not unconstitutionally vague or overbroad.

Stevens, J., Dissenting Opinion:

(1) Sanctioning the desecration of the flag will tarnish its value as a national symbol, a tarnish which is not justified by the trivial burden on free expression that is occasioned by requiring that alternative modes of expression be employed; (2) the flagdesecration statute does not prescribe orthodox views or compel any conduct or expression of respect for any idea or symbol; and (3) the defendant was prosecuted not for his criticism of government policies, but for the method he chose to express those views, and a prohibition against that method is supported by a legitimate interest in preserving the quality of an important national asset. Adapted.

Ebranilag v. Division Superintendent of Schools of Cebu, 219 SCRA 256 (1993)

Conscientious Objectors cannot be compelled to salute the flag.

F: All the petitioners in these cases were expelled from their classes by the public school authorities in Cebu for refusing to salute the flag, since the national anthem and recite the patriotic pledge as required by RA 1265 and by Dept.

Order No. 8 dated July 21, 1955 of the DECS making the flag ceremony compulsory in all educational institutions.

ISSUE: W/N school children who are members of a religious sect known as Jehovah's Witnesses may be expelled from school (both private and public), for refusing, on account of their religious beliefs, to take part in the flag ceremony which includes playing (by a band) or singing the Phil. National Anthem, saluting the Phil. flag and reciting the patriotic pledge.

HELD: NO. The idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic

pledge, during a flag ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights w/c guarantees their rights to free speech and the free exercise of religious profession and worship.

xxx xxx Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that

violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.

xxxThe sole justification for a prior restraint or limitation on the exercise of religious freedom is the

existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, moral, health or any other legitimate public interest, that the state has a right and duty to prevent. Absent such a threat to public safety, the expulsion of the pets. from the schools is not justified.

xxxAlthough petitioners do not participate in the compulsory flag ceremony, they do not engage in external

acts or behavior that would offend their countrymen who believe in exercising their love of country through the observance of the flag ceremony. They quietly stand at attention during the ceremony to show their respect for the right of those who choose to participate in the solemn proceedings. As there is no disruption, expulsion is unwarranted. However, if they should commit breaches of peace by action that offend the sensibilities, both religious and patriotic, of other persons, the school authorities have the power to discipline them. Adapted.

B. On the Name, Anthem and Seal

Art. XVI, Sec. 2. The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum.

Com. Act 382, Sept. 5, 1938

COMMONWEALTH ACT NO. 382

AN ACT TO ADOPT THE ORIGINAL AUTHENTIC FORM OF THE PHILIPPINE NATIONAL ANTHEM AND TO

APPROPRIATE FUNDS FOR ITS PRINTING AND FREE DISTRIBUTION.

To preserve the musical adaptation and motive in the original authentic composition of the Philippine National Anthem as set by its author, Julian Felipe, and to attain uniform performance thereof in the Philippines:

Be it enacted by the National Assembly of the Philippines:

Sec. 1. The musical arrangement and composition of the Philippine National Anthem as set by its author, Julian Felipe, is adopted.

Sec. 2. There is appropriated, out of the unappropriated funds in the National Treasury, the sum of five hundred pesos for the preparation, printing and free distribution of copies of the Philippine National Anthem as adjusted to its original authentic outline.

Sec. 3. The National Library of the Philippines is entrusted with the accomplishment hereof.Sec. 4. This Act shall take effect on its approval.Approved, September 5, 1938.

C. On the Armed Forces of the Philippines

1. Concept of citizen army

Art. XVI, Sec. 4. The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve, as may be provided by law. It shall keep a regular force necessary for the security of the State.

2. Regulation of The Armed Forces

Sec. 5. (1) All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution.

(2) The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty.

(3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics.

No member of the military shall engage directly or indirectly in any partisan political activity, except to vote.

(4) No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government including governmentowned or controlled corporations or any of their subsidiaries.

(5) Laws on retirement of military officers shall not allow extension of their service.(6) The officers and men of the regular force of the armed forces shall be recruited

proportionately from all provinces and cities as far as practicable.(7) The tour of duty of the Chief of Staff of the armed forces shall not exceed three years.

However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.

Art. XVIII, Sec. 24. Private armies and other armed groups not recognized by duly constituted authority shall be dismantled. All paramilitary forces including Civilian Home Defense Forces not consistent with the citizen armed force established in this Constitution shall be dissolved or, where appropriate, converted into the regular force.

D. On the National Police

Art. XVI, Sec. 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.

E. On Retirement and Other Benefits

1. War veterans

Sec. 7. The State shall provide immediate and adequate care, benefits, and other forms of assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. Funds shall be provided therefor and due consideration shall be given them in the disposition of agricultural lands of the public domain and, in appropriate cases, in the utilization of natural resources.

2. Government and private sector retirees

Sec. 8. The State shall, from time to time, review to upgrade the pensions and other benefits due to retirees of both the government and the private sectors.

F. On Consumer Protection

Sec. 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.

IX. THE AMENDING PROCESS

Cruz, Philippine Political Law, 1991 ed. (hereinafter Cruz):

Amendment and Revision. Art. XVII provides that the Consti. may be changed either by amendment or revision.

Amendment refers to isolated or piecemeal change only, as distinguished from revision, which is a revamp or rewriting of the whole instrument.

Procedure. Two steps are involved in the amendment or revision of the Consti. The first is the proposal and the second is the ratification.

A. Proposal

Art. XVII, Section 1. Any amendment to, or revision of, this Constitution may be proposed by:(1) The Congress, upon a vote of threefourths of all its Members; or(2) A constitutional convention.

Cruz: The choice of the method of proposal lies in the exclusive discretion of the legislature.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Gonzales v. COMELEC, 21 SCRA 774 (1967)

F: On 3/16/67, the Senate and the HReps. passed the ff. resolutions:(1) R.B.H. (Resolution of Both Houses) No. 1 proposing that Sec. 5, Art VI of the Consti. be amended so as to

increase the membership of the HReps from a maximum of 120 to a maximum of 180, to be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, although each province shall have at least 1 member;

(2) R.B.H. No. 2, calling a convention to propose amendments to said Consti., the convention to be composed of 2 elective delegates from each representative district, to be "elected in the general elections to be held on the second Tues. of Nov., 1971;" and

(3) R.B.H No. 3 proposing that Sec. 16, Art. VI of the same Consti. be amended as to authorize the Senators of the Members of the HReps to become delegates to the aforementioned constitutional conventions, w/o forfeiting their

respective seats in Congress.Subsequently, Congress passed a bill, w/c, upon approval of the Pres., on 6/17/67, became RA 4913, providing that

the amendments to the Consti. proposed in the aforementioned Resolutions Nos. 1 and 3 be submitted, for approval by the people, at the general elections w/c shall be held on 11/14/67.

ISSUE NO. 1: Alternatives Available to Congress. Atty. Juan David, as amicus curiae, maintains that Congress may either propose amendments to the Consti. or call a convention for that purpose, but it can not do both, at the same time.

HELD: This theory is based upon the fact that the 2 alternatives are connected in the Consti. by the disjunctive "or." Such basis is, however, a weak one, in the absence of other circumstances supporting the conclusion drawn by the amicus curiae

ISSUE NO. 2: May Constitutional Amendments be submitted for ratification in a general election?

HELD: Yes. The 1935 Consti. provides:

Art. XV, Sec. 1. The Congress in joint session assembled, by a vote of threefourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.

There is in this provision nothing to indicate that the "election" therein referred to is a "special," not general election. The circumstance that 3 previous amendments to the Consti. had been submitted to the people for ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections.

ISSUE NO. 3: Would the submission now of the Contested Amendments to the People Violate the Spirit of the Constitution?

HELD: No. xxx A legislation cannot be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or unconstitutionality depends upon no other factors than those existing at the time of the enactment thereof, unaffected by the acts or omissions of law enforcing agencies, particularly those that take place subsequently to the passage or approval of the law.

xxxThe determination of the conditions under w/c the proposed amendments shall be submitted to the

people is concededly a matter w/c falls w/in the legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in enacting RA 4913. xxx

J. Sanchez, Dissenting:

In order that the proposed amendments could be considered to have been properly submitted, "the people must be afforded opportunity to mull over the original provisions, compare them w/ the proposed

amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influence. There must be a fair submission, intelligent consent or rejection." Such fair submission would be possible only if the plebiscite were scheduled on a special date. RAM.

1. By Congress

Art. VII, Section 1. Any amendment to, or revision of, this Constitution may be proposed by:(1) The Congress, upon a vote of threefourths of all its Members; or(2) A constitutional convention.

1935 Constitution, Art. XV

Art. XV, Sec. 1. The Congress in joint session assembled, by a vote of threefourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.

Gonzales v. COMELEC, supra.

2. By Constitutional Convention

Sec. 3. The Congress may, by a vote of twothirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

3. By The People through Initiative

RA 6735, Secs. 5 (b) & 9 (b)

Sec. 5. Requirements. xxx(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the

total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter.

Sec. 9. Effectivity of Initiative or Referendum Proposition. xxx(b) The proposition in an initiative on the Constitution approved by a majority of the votes cast in the

plebiscite shall become effective as to the day of the plebiscite.

B. Ratification

1. In Case of Amendment Proposed by Congress or Convention

Art. XVII, Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

xxx

2. In Case of Amendment Proposed through Initiative

Sec. 4. xxxAny amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast

in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.

3. Plebiscite to Be Called by Congress And Supervised by COMELEC But The Initiative on Constitution Will Be Called By COMELEC.

C. Theories regarding the position of the constitutional convention in our system of government

Cruz: Position of the Constitutional Convention. There are 3 theories on the relative position of the constitutional convention visàvis the regular departments of the government:

1. Theory of Conventional Sovereignty. The first holds that the constitutional convention is supreme over the other departments of the govt bec. the powers it exercises are in the nature of sovereign powers.

2. The second theory considers the constitutional convention inferior to the other departments of the govt since it is merely a creation of the legislature. (Legislative Control Theory.)

3. The third declares that as long as it exists and confines itself w/in the sphere of its jurisdiction, the constitutional convention must be considered independent of and coequal w/ the other departments of the govt. (Coequality Theory.)

The third of these theories, w/c is the most popular, has been observed in this jurisdiction since the case of Mabanag v. Lopez Vito, 78 Phil. 1.

Tolentino v. COMELEC, 41 SCRA 702 (1971)

F: This is a petition for prohibition principally to restrain the resp. COMELEC from undertaking to hold a plebiscite on 11/8/71 at w/c the proposed constitutional amendment reducing the voting age in Sec. 1 of Art V of the 1935 Consti. to 18 yrs. shall be submitted for ratification by the people pursuant to Organic Resolution No. 1 of the Con Con of 1971 and the subsequent implementing resolutions, by declaring said resolutions to be w/o the force and effect of law in so far as they direct the holding of such plebiscite and by also declaring the acts of the resp. COMELEC performed and to be done by it in obedience to the aforesaid Con Con to be null and void, for being violative of the Consti.

xxxThe main thrust of the petition is that Organic Resolution No. 1 and the other implementing resolutions thereof

subsequently approved by the Con Con have no force and effect as laws in so far as they provide for the holding of a plebiscite coincident w/ the election of 8 senators and all city, provincial and municipal officials to be held on 11/8/71, hence all of the Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is, by the Consti., a power lodged exclusively in Congress, as a legislative body, and may not be exercised by the Convention, and that, under Sec. 1, Art. XV of the 1935 Consti., the proposed amendment in question cannot be presented to the people for ratification separately from each and all of the other amendments to be drafted and proposed by the Convention.

ISSUE: In the case at bar, the ultimate question is: Is there any limitation or condition in Sec. 1, Art. XV of the Consti. w/c is violated by the act of the convention of calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1?

HELD: The Court holds that there is, and it is the condition and limitation that all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite.

In order that a plebiscite for the ratification of an amendment to the Consti. may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Consti. w/ w/c it has to form a harmonious whole. In the context of the present state of things, where the Convention has hardly started considering the merits of hundreds, if not thousands, of proposals to amend the existing Consti., to present to the people any single proposal or a few of them cannot comply w/ this requirement. Under Sec. 1, Art. XV of the Consti., a proposal to amend the Consti., should be submitted to the people not separately from but together w/ all the other amendments to be proposed by this present Convention.

Limits to the power of a constitutional convention. As to matters not related to its internal operation and the performance of its assigned missions to propose amendments to the Consti., the convention and its officers and members are all subject to all the provisions of the existing Consti. Now we hold that even as to its latter task of proposing amendments to the Consti., it is subject to the provisions of Sec. 1 of Art. XV. This must be so, bec. it is plain to us that the framers of the Consti. took care that the process of amending the same should not be undertaken w/ the same ease and facility in changing an ordinary legislation. RAM.

D. Judicial Review of The Amending Process

Gonzales v. COMELEC, supra.

The issue w/n a Resolution of Congress acting as a constituent assembly violates the Constitution is

essentially a justiciable, not political (question), and hence, subject to judicial review.

Nature of Power to Amend the Constitution. The power to amend the Consti. or to propose amendments thereto is not included in the general grant of legislative powers to Congress. It is a part of the inherent powers of the people as the repository of sovereignty in a republican state, such as ours to make, and hence, to amend their own fundamental law. Congress may propose amendments to the Consti. merely bec. the same explicitly grants such power. Hence, when exercising the same, it is said that Senators and Members of the HReps. act, not as members of Congress but as competent elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Consti., unlike the people, when performing the same function, for their authority does not emanate from the Consti. they are the very source of all powers of govt, including the Constitution itself.

Since, when proposing, as a constituent assembly, amendments to the Consti., the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on w/n their acts are w/in or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a govt of laws and not of men, and to the rigid nature of our Consti. xxx

Judicial power to nullify executive or legislative acts, not violative of principle of separation of powers. The system of checks and balances underlying the judicial power to strike down acts of the Executive or of the Congress transcending the confines set forth in the fundamental law is not in derogation of powers, pursuant to w/c each dept. is supreme w/in its own sphere.

Tolentino v. COMELEC, supra.

ISSUE: W/N SC has jurisdiction over acts of Constitutional Convention?

HELD: YES. The courts may review the validity of an act of the Constitutional Convention proposing a particular

amendment to the Consti. xxxPower to review acts of the constitutional convention. A constitutional convention is supreme w/in the

domain of its legitimate authority. A revolutionary convention w/c drafts the first Consti. of an entirely new govt born either of war or liberation from a mother country or of a revolution against an existing govt or of a bloodless seizure of power a la coup d' etat is completely w/o restraint and omnipotent. The 1971 Con Con, however, came into being only by virtue of the provisions of the 1935 Consti.

True it is that once convened, this convention became endowed w/ extraordinary powers generally beyond the control of any dept of the existing govt, but the compass of such powers can be can be coextensive only with the purpose for which it was called and as the amendments it may propose cannot have any effect as part of the Consti. until the same are ratified by the people, it necessarily follows that the acts of the Convention, its officers and members, are not immune from attack on constitutional grounds. The present Consti is in full force and effect in its entirety and in everyone and its parts, the existence of the Convention notwithstanding, and operates even within the walls of that assembly. As the Consti Convention is subject to the Constitution and the rule of law, thus upon principle, reason of authority, it is within the power, as it is the solemn duty of the court, under the existing Consti (1935) to resolve the issues in this case.

Rationale for the power of judicial review. In upholding the jurisdiction of the Court over the case at bar, it is not bec. the Court is superior to the Con Con or that the Convention is subject to the control of the Court, but simply bec. both the Con Con and the Court are subject to the Consti. and the rule of law, and "upon principle, reason and authority," per J. Laurel, it is w/in the power, as it is the solemn duty of the Court under the existing Consti., to resolve the issues in w/c petitioner, respondents and intervenors have joined in this case. RAM.

Javellana v. Executive Secretary, 50 SCRA 30 (1973.)

By virtue of the majority of six votes w/ four dissenting votes, all the cases were dismissed. This being the vote of the majority, there is no further judicial obstacle to the New Constitution being considered in force and effect.

Art. VIII, Sec. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

xxx

E. When Will Proposed Amendments Take Effect?

Compare Art. XVII, Sec. 4 with Art. XVIII, Sec. 27

Art. XVII, Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.

Art. XVIII, Sec. 27. This Constitution shall take effect immediately upon ratification by a majority of the votes case in a plebiscite held for the purpose and shall supersede all previous Constitutions.

xxx

Recall De Leon v Esguerra, 153 SCRA 602 (1987) which held that: The 1987 Constitution took effect on February 2, 1987, the date of the plebiscite not on February 11, 1987, the date of Proclamation No. 58, which proclaimed that the Constitution was ratified by the people.

UPDATED 1/25/96REVISED 5/13/96RAM

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