MANGUERA OUTLINE 2010 CONSTITUTIONAL LAW I PART 2 VERSION 3.0 Article IX CONSTITUTIONAL COMMISSIONS I. COMMON PROVISIONS (Article IX-A) II. CIVIL SERVICE COMMISSION (Article IX-B) III. COMMISSION ON ELECTIONS (Article IX-C) IV. COMMISSION ON AUDIT(Article IX-D) I. Common Provisions Independent Constitutional Commissions Safeguads Insuing Independen!e In"i#itions on t"e Mem#es of t"e Commissions Rotational S!"eme Reappointment Po!eedings Enfo!ement of De!isions Section 1. The Constitutional Commissions, which shall be independent, are the Civil ervice Commission, the Commission on !lections, and the Commission on Audit. Section 2. "o member o# a Constitutional Commission shall, durin$ his tenure, hold an% other o##ice or emplo%ment. "either shall he en$a$e in the practice o# an% pro#ession or in the active mana$ement or control o# an% business which, in an% wa%, ma% be a##ected b% the #unctions o# his o##ice, nor shall he be #inanciall% interested, directl% or indirectl%, in an% contract with, or in an% #ranchise or privile$e $ranted b% the &overnment, an% o# its subdivisions, a$encies, or instrumentalities, includin$ $overnment-owned or controlled corporations or their subsidiaries. Section. 3. The salar% o# the Chairman and the Commissioners shall be #i'ed b% law and shall not be decreased durin$ their tenure. Section 4. The Constitutional Commissions shall appoint their o##icials and emplo%ees in accordance with law. Section 5. The Commission shall en(o% #iscal autonom%. Their approved annual appropriations shall be automaticall% and re$ularl% released. Section 6. !ach Commission en banc ma% promul$ate its own rules concernin$ pleadin$s and practice be#ore it or be#ore an% o# its o##ices. uch rules, however, shall not diminish, increase, or modi#% substantive ri$hts. Section . !ach Commission shall decide b% a ma(orit% vote o# all its )embers, an% case or matter brou$ht be#ore it within si't% da%s #rom the date o# its submission #or decision or resolution. A case or matter is deemed submitted #or decision or resolution upon the #ilin$ o# the last pleadin$, brie#, or memorandum re*uired b% the rules o# the Commission or b% the Commission itsel#. +nless otherwise provided b% this Constitution or b% law, an% decision, order, or rulin$ o# each Commission ma% be brou$ht to the upreme Court on certiorari b% the a$$rieved part% within thirt% da%s #rom receipt o# a cop% thereo#. Section !. !ach Commission shall per#orm such other #unctions as ma% be provided b% law. A. In"e#en"ent Constit$tion%l Commissions The independent constitutional commissions are the, -. Civil ervice Commission .. Commission on !lections /. Commission on Audit &' 0h% have these commissions been made constitutional commissions1 A' The CC, C2A and C2)!3!C per#orm 4e% #unctions in the $overnment. In or"er to #rotect t(eir inte)rit*, the% have been made constitutional bodies. - +. S%,e)$%r"s Ins$rin) t(e In"e#en"ence o, t(e Commissions 2 1. The% are constitutionall% created5 the% ma% not be abolished b% statute. (Art. IX-A, 6-) 2. !ach is e'pressl% described as 7independent.8 (Art. IX-A, 6-) 3. !ach is con#erred certain powers and #unctions which cannot be reduced b% statute. (Art. IX-B, C and D) 4. The Chairmen and members cannot be removed e'cept b% impeachment. (Art. XI, 6.) 1 Bernas Primer at 367 (2006 ed.) 2 Cruz, Philippine Political a!, p. 27" (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence - FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
$. The Chairmen and members are $iven #airl% lon$ term o# o##ice o# 9 %ears. (Art. IX-B, C and 6-(.)) 6. The terms o# o##ice o# the chairmen and members o# all the commissioners are sta$$ered in such a wa% as to lessen the opportunit% #or appointment o# the ma(orit% o# the bod% b% the same :resident. (Art. IX-B, C and 6-(.)) 7. The chairmen and members ma% not be reappointed or appointed in an actin$ capacit%. / (Art. IX-B, C and 6-(.)) ". The salaries o# the chairman and members are relativel% hi$h and ma% not be decreased durin$ continuance in o##ice. (Art. IX-A, 6/5 Art. X;III, 6-9 ) #. The Commissions en(o% ,isc%l %$tonom*. (Art. IX-A, 6<) 10. !ach Commission ma% promul$ate its own procedural rules, provided the% do not diminish, increase or modi#% substantive ri$hts. (Art. IX-A, 6=) 11. The chairmen and members are sub(ect to certain dis*uali#ications calculated to stren$then their inte$rit%. (Art. IX-A, 6=) 12. The Commissions ma% appoint their own o##icials and emplo%ees in accordance with Civil ervice 3aw. (Art. IX-A, 6=) &' There are independent o##ices speci#icall% authori>ed b% the Constitution to appoint their o##icials. Does this impl% that their appointment will not be sub(ect to Civil ervice 3aw and ?ules1 A' "o. i# this were the case, these independent bodies would arro$ate upon themselves a power that properl% belon$s to the Civil ervice Commission. @ad the intention o# the #ramers o# the Constitution been to isolate and $rant #ull independence to Constitutional Commission in the matter o# appointments, it would have been so provided. But that is not the case. And since all matters pertainin$ to appointments are within the realm o# e'pertise o# the CC, all laws, rules and re$ulations it issues on appointments must be complied with. (2mbudsman v. CC, Aebruar% -B, .CC<) C. In(i-itions./is0$%li,ic%tions (ection .) )embers o# constitutional commissions, 1. hall not, duing tenue, hold an% other o##ice or emplo%ment5 3 %n &ati'a( ). Benipa*o, the +C said that !hen an ad interim appointment (o, the Chairman o, C-&..C) is not con,irmed (as it !as '*/passed, or that there !as no ample time ,or the Commission on 0ppointments to pass upon the same), another ad interim appointment ma* 'e e1tended to the appointee !ithout )iolatin( the Constitution. 2. hall not en$a$e in the pa!ti!e of an$ pofession5 3. hall not en$a$e in the a!ti%e management o !ontol o# an% business which in an% wa% ma% be a##ected b% the #unctions o# his o##ice. 4. hall not be finan!iall$ inteested, directl% or indirectl%, in an% contract with, or in an% #ranchise or privile$e $ranted b% the &overnment, an% o# its subdivisions, a$encies or instrumentalities, includin$ $overnment- owned or controlled corporation or their subsidiaries. P$r#ose o, /is0$%li,ic%tions. To compel the chairmen and members o# the Constitutional Commissions to devote their #ull attention to the dischar$e o# their duties and, as well, to remove #rom them an% temptation to ta4e advanta$e o# their o##icial positions #or sel#ish purposes. = 1Pr%ctice o, #ro,ession2 #or the purpose o# ection /, does not include teachin$. Thus, a law%er who teaches law does not thereb%, #or the purpose o# ection ., violate the prohibition o# practice o# a pro#ession. (I ?!C2?D <==-<<<, <<D- <<E) Pro(i-ition o, 1%ctive m%n%)ement2 does not prohibit a Commissioner #rom ownin$ business but it prohibits him #rom bein$ the mana$in$ o##icer or a member o# the $overnin$ board o# a business, 7which in an% wa% ma% be a##ected b% the #unctions o# his o##ice,8 a *uali#%in$ phrase which does not appl% to the prohibition o# a practice o# a pro#ession. (I ?!C2?D <<.-<<E) /. 3ot%tion%l Sc(eme o, A##ointments (-EEE Bar F) (ection -(.) o# Article IX-B, C and D.) The #irst appointees shall serve 9, < and / %ears respectivel%. 3e%son ,or St%))erin) o, Terms' -. To lessen the opportunit% o# the :resident to appoint a ma(orit% o# the bod% durin$ his term5 .. To ensure continuance o# the bod%, which alwa%s retains .G/ o# its membership. 3. The s%stem is e'pected to stabili>e the policies o# the bod% as maintained b% the remainin$ members. < &aminde %. COA' De!em#e ()' *+++. It was held that in order to preserve the periodic succession mandated b% the Constitution, the rotational plan re*uires two conditions, 4 Cruz, Philippine Political a!, p. 2"0 (1##$ ed). $ Cruz, Philippine Political a!, p. 2"# (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence . FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
1. The terms o# the #irst commissioners should start on a common date (4e- 25 16!)5 and .. An% vacanc% due to death, resi$nation or disabilit% be#ore the e'piration o# the term should onl% be #illed #or the une'pired balance o# the term. 7. Procee"in)s 1. /ecision There is no decision until the dra#t is si$ned and promul$ated. @ence, i# a commissioner si$ns a decision but retires be#ore the decision is promul$ated, his vote does not count even i# it was he who penned the decision. (Ambil v. C2)!3!C, 2ctober .<, .CC<) 2. 8(o m%9es t(e "ecision The decisions are made b% the bod% and not b% individual members. "o individual member ma% ma4e a decision #or the Commission. )uch less ma% cases be decided b% subordinates o# the Commission. "ot even the CommissionHs le$al counsel ma% ma4e a decision #ro the Commission. 3. !ach Commission shall decide -* % m%:orit* vote of all its Mem#es an% case or matter brou$ht be#ore it within si't% da%s #rom the date o# its submission #or decision. (Article IX-A ection 9) The provision is clear that what is re*uired is the ma(orit% vote o# all the members, not onl% o# those who participated in the deliberations and voted thereon. (!strella v. C2)!3!C, )a% .9, .CC=) (Article IX-B, ection . allows the C2)!3!C to ma4e decisions in divisions) In the C2)!3!C, there is #ull Commission to #orm a banc i# there are #our Commissioners le#t. &' Two commissioners who participated in the consideration o# the case retired be#ore the promul$ation o# the C2)!3!C decision but a#ter the% cast their vote. Aour commissioners were le#t. hould the votes o# the retirees be counted1 A' "o. Their vote should be automaticall% withdrawn. There is no decision until it is promul$ated. &' Is the /-- vote o# the remainin$ commissioners a valid decision en banc. A' The vote o# / is a ma(orit% vote o# all. (Duma%as v. C2)!3!C, April .C, .CC-) 4. Unless ot(er;ise #rovi"e" -* t(is Constit$tion or -* l%;, an% decision, order, or rulin$ o# each Commission ma% be brou$ht to the upreme Court on certiorari b% the a$$rieved part% within /C da%s #ro the receipt thereo#. (Article IX-A ection 9) The certiorari re#erred to is a s#eci%l civil %ction ,or certior%ri under ?ule B<. (Dario v. )ison) The certiorari (urisdiction o# the upreme Court is limited to decision rendered in actions or proceedin$s ta4en co$ni>ance o# b% the Commissions in the e'ercise o# their ad(udicator% or *uasi-(udicial powers. (It does not re#er to purel% e'ecutive powers such as those which relate to the C2)!3!CHs appointin$ power. @ence, *uestions arisin$ #rom the award o# a contract #or the construction o# votin$ booths can be brou$ht be#ore a trial court. imilarl%, actions ta4en b% the C2)!3!C as prosecutor come under the (urisdiction o# the trial court which has ac*uired (urisdiction over the criminal case.) &' <o; %re "ecisions o, t(e commissions revie;e" -* t(e SC= Commission on A$"it' Iud$ments or #inal orders o# the Commission on Audit ma% be brou$ht b% an a$$rieved part% to the upreme Court on certiorari under ?ule B<. 2nl% when C2A acts without or e'cess in (urisdiction, or with $rave abuse o# discretion amountin$ to lac4 or e'cess o# (urisdiction, ma% the C entertain a petition #or certiorari under ?ule B<. Civil Service Commission' In the case o# decisions o# the CC, Administrative Circular --E< B which too4 e##ect on Iune -, -EE<, provides that #inal resolutions o# the CC shall be appealable b% certiorari to the CA within -< da%s #rom receipt o# a cop% thereo#. Arom the decision o# the CA, the part% adversel% a##ected thereb% shall #ile a petition #or review on certiorari under 3$le 45 o# the ?ules o# Court. &' 0hen certiorari to the upreme Court is chosen, what is re*uired1 A' ?ule B<, ection - sa%s that certiorari ma% be resorted to when there is no other plain or speed% and ade*uate remed%. But reconsideration is a speed% and ade*uate remed%. @ence, a case ma% be brou$ht to the upreme Court onl% a#ter reconsideration. (As a conse*uence, in the case o# decisions o# the C2)!3!C, onl% decision en banc ma% be brou$ht to the Court b% certiorari since Article IX-C, / sa%s that motions #or reconsideration o# decisions shall be decided b% the Commission en banc. (?e%es v. ?TC, -EE<) 6 Pursuant to 20 7#02. I sweat, I bleed, I soar Service, Sacrifice, Excellence / FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
4. 7n,orcement o, /ecisions The #inal decisions o# the Civil ervice Commission are en#orceable b% a ;rit o, e>ec$tion that the Civil ervice Commission ma% itsel# issue. (;ital- &o>on v. CA, .-. C?A ./<) ?. 4isc%l A$tonom* Article IX-A, ection < $ives the constitutional commissions #iscal autonom%, that is, their approved annual appropriations shall be automaticall% and re$ularl% released and shall not be sub(ect to pre-audit. 9 4isc%l A$tonom*. In Ci%il Se%i!e Commission %. D,M' -ul$ **' *++.' the C said that the 7no report, no release8 polic% ma% not be validl% en#orced a$ainst o##ices vested with #iscal autonom%, without violatin$ ection < o# Article IX- A o# the Constitution. The 7automatic release8 o# approved annual appropriations to petitioner, a constitutional commission vested with #iscal autonom% should thus be construed to mean that no condition to #und releases to it ma% be imposed. ''' @owever, petitionerHs claim that its bud$et ma% not be reduced b% Con$ress below the amount appropriated #or the previous %ear, as in the case o# the Iudiciar%, must be re(ected. The provisions in ection /, Article ;III, prohibitin$ the reduction in the appropriation #or the Iudiciar% below the amount appropriated #or the previous %ear does not appear in ection <, Article IX-A. The plain implication o# this omission is that Con$ress is not prohibited #rom reducin$ the appropriations o# Constitutional Commissions below the amount appropriated #or them #or the previous %ear. Note' The upreme Court said that the Commission on @uman ?i$hts, unli4e the three constitutional commissions, does not en(o% #iscal autonom%. (C@? !mplo%ees Association v. C@?, "ovember .<, .CC=). <. Po;er to Prom$l)%te 3$les o, Proce"$re Article IX-A, ection B $ives the constitutional commissions authorit%, sittin$ en, to promul$ate rules o# procedure. &' In case o# con#lict between a rule o# procedure promul$ated b% a Commission and a ?ule o# Court, which prevails1 A' In case o# con#lict between a rule o# procedure promul$ated b% a Commission and a ?ule o# Court, the rule o# the Commission should prevail i# the proceedin$ is be#ore the Commission5 but i# the 7 Bernas Commentar*, p 1003(2003 ed). proceedin$ is be#ore a court, the ?ules o# Court prevail. (Aruelo Ir. v. CA, 2ctober .C, -EE/) &' )a% the upreme Court disapprove internal rules promul$ated b% the Commissions1 A' The upreme Court has no power to disapprove Commission rules e'cept throu$h the e'ercise o# the power o# 7(udicial review8 when such Commission rules violate the Constitution. D &' )a% Con$ress assume power to review rules promul$ated b% the Commission1 A' "o. (B% vestin$ itsel# with the powers to approve, review, amend, and revise the Implementin$ ?ules #or the 2verseas Absentee ;otin$ Act o# .CC/, Con$ress acted be%ond the scope o# its constitutional authorit%. Con$ress trampled upon the constitutional mandate o# independence o# the C2)!3!C.) ()acalintal v. C2)!3!C, Iul% -C, .CC/) I# the rules promul$ated b% a Commission are inconsistent with a statute, the statute prevails. (Antonio v. C2)!3!C, eptember .., -EEE) II. Civil Service Commission Composition of CSC /un!tions0 O#1e!ti%e of CSC Natue of t"e Po2es of CSC 3ualifi!ations of CSC Commissiones Appointment of CSC Commissiones S!ope of Ci%il Se%i!e Classifi!ation of Positions Classes of Se%i!e Dis4ualifi!ations Se!uit$ of Tenue Patisan Politi!al A!ti%it$ Rig"t to Self5ogani6ation Pote!tion to Tempoa$ Emplo$ees Standadi6ation of Compensation Dou#le Compensation Section 1. (-) The civil service shall be administered b% the Civil ervice Commission composed o# a Chairman and two Commissioners who shall be natural-born citi>ens o# the :hilippines and, at the time o# their appointment, at least thirt%-#ive %ears o# a$e, with proven capacit% #or public administration, and must not have been candidates #or an% elective position in the elections immediatel% precedin$ their appointment. (.) The Chairman and the Commissioners shall be appointed b% the :resident with the consent o# the Commission on Appointments #or a term o# seven %ears without reappointment. 2# those #irst appointed, the Chairman shall hold o##ice #or seven %ears, a Commissioner #or #ive %ears, and another Commissioner #or three %ears, without reappointment. Appointment to an% vacanc% shall be onl% #or the une'pired term o# the predecessor. In no " Bernas Commentar*, p 1003(2003 ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence = FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
case shall an% )ember be appointed or desi$nated in a temporar% or actin$ capacit%. Section 2. (-) The civil service embraces all branches, subdivisions, instrumentalities, and a$encies o# the &overnment, includin$ $overnment- owned or controlled corporations with ori$inal charters. (.) Appointments in the civil service shall be made onl% accordin$ to merit and #itness to be determined, as #ar as practicable, and, e'cept to positions which are polic%-determinin$, primaril% con#idential, or hi$hl% technical, b% competitive e'amination. (/) "o o##icer or emplo%ee o# the civil service shall be removed or suspended e'cept #or cause provided b% law. (=) "o o##icer or emplo%ee in the civil service shall en$a$e, directl% or indirectl%, in an% electioneerin$ or partisan political campai$n. (<) The ri$ht to sel#-or$ani>ation shall not be denied to $overnment emplo%ees. (B) Temporar% emplo%ees o# the &overnment shall be $iven such protection as ma% be provided b% law. Section 3. The Civil ervice Commission, as the central personnel a$enc% o# the &overnment, shall establish a career service and adopt measures to promote morale, e##icienc%, inte$rit%, responsiveness, pro$ressiveness, and courtes% in the civil service. It shall stren$then the merit and rewards s%stem, inte$rate all human resources development pro$rams #or all levels and ran4s, and institutionali>e a mana$ement climate conducive to public accountabilit%. It shall submit to the :resident and the Con$ress an annual report on its personnel pro$rams. Section 4. All public o##icers and emplo%ees shall ta4e an oath or a##irmation to uphold and de#end this Constitution. Section 5. The Con$ress shall provide #or the standardi>ation o# compensation o# $overnment o##icials and emplo%ees, includin$ those in $overnment-owned or controlled corporations with ori$inal charters, ta4in$ into account the nature o# the responsibilities pertainin$ to, and the *uali#ications re*uired #or, their positions. Section 6. "o candidate who has lost in an% election shall, within one %ear a#ter such election, be appointed to an% o##ice in the &overnment or an% &overnment-owned or controlled corporations or in an% o# their subsidiaries. Section . "o elective o##icial shall be eli$ible #or appointment or desi$nation in an% capacit% to an% public o##ice or position durin$ his tenure. +nless otherwise allowed b% law or b% the primar% #unctions o# his position, no appointive o##icial shall hold an% other o##ice or emplo%ment in the &overnment or an% subdivision, a$enc% or instrumentalit% thereo#, includin$ &overnment-owned or controlled corporations or their subsidiaries. Section !. "o elective or appointive public o##icer or emplo%ee shall receive additional, double, or indirect compensation, unless speci#icall% authori>ed b% law, nor accept without the consent o# the Con$ress, an% present, emolument, o##ice, or title o# an% 4ind #rom an% #orei$n $overnment. :ensions or $ratuities shall not be considered as additional, double, or indirect compensation. A. Com#osition o, CSC Civil ervice Commission is composed o# a Chairman and two Commissioners. (Article IX-B, ection -(-)) +. 4$nctions o, CSC 1. The CC shall administer the civil service. (Art. IX-B, 6-(-)) 2. The CC as the #ersonnel %)enc* o, t(e )overnment shall establish a career service5 /. It shall adopt measures to promote morale, e##icienc%, inte$rit%, responsiveness, pro$ressiveness, and courtes% in the civil service. =. It shall stren$then the merit and rewards s%stem5 <. It shall inte$rate all human resources development pro$rams #or all levels and ran4s5 B. It shall institutionali>e a mana$ement climate conducive to public accountabilit%. 7. It shall submit to the :resident and the Con$ress an annual report on its personnel pro$rams. (Article IX-B, ection /) Po;er to ?r%nt Civil Service 7li)i-ilit*. In the e'ercise o# its powers to implement ?A BD<C ($rantin$ civil service eli$ibilit% toe emplo%ees under provisional or temporar% status who have rendered seven %ears o# e##icient service), the CC en(o%s wide latitude o# discretion and ma% not be compelled b% mandamus to issue eli$ibilit%. (Torre$o>a v. CC) But the CC cannot validl% abolish the Career !'ecutive ervice Board (C!B)5 because the C!B was created b% law, it can onl% be abolished b% the 3e$islature (!u$enio v. CC, -EE<) Po;er to (e%r %n" "eci"e %"ministr%tive c%ses. +nder the Administrative Code o# -ED9, the CC has the power to hear and decide administrative cases instituted be#ore it directl% or on appeal, includin$ contested appointments. E @$ris"iction on Personnel %ctions. It is the intent o# the Civil ervice 3aw, in re*uirin$ the establishment o# a $rievance procedure, that decisions o# lower o##icials (in cases involvin$ # 0ntonio B. 3achura, -utline42e)ie!er in Political a!, 307 (2006) I sweat, I bleed, I soar Service, Sacrifice, Excellence < FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
personnel actions) be appealed to the a$enc% head, then to the CC. The ?TC does not have (urisdiction over such personal actions. (2landa v. Bu$a%on$, .CC/) A$t(orit* to 3ec%ll A##ointments. The 2mnibus ?ules implementin$ the Administrative Code provides, amon$ others, that notwithstandin$ the initial approval o# an appointment, the same ma% be recalled #or violation o# other e'istin$ Civil service laws, rules and re$ulations. Thus, in Debulgado v. CSC, it was held that the power o# the CC includes the authorit% to recall appointment initiall% approved in disre$ard o# applicable provisions o# the Civil ervice law and re$ulations. -C Ori)in%l :$ris"iction to (e%r %n" "eci"e % com#l%int ,or c(e%tin). The Commission has ori$inal (urisdiction and decide a complaint #or cheatin$ in the Civil ervice e'aminations committed b% $overnment emplo%ees. The #act that the complaint was #iled b% the CC itsel# does not mean that it cannot be an impartial (ud$e. (Cru> v. CC. .CC-) -- &' 0hen there are more than one person *uali#ied #or a position, ma% the CC dictate to the appointin$ authorit% who amon$ those *uali#ied should be appointed1 A' "o. the power o# the CC is limited to attestin$ to the eli$ibilit% or ineli$ibilit% o# the appointee. (2rbos v. CC, -EEC) -. &' )a% the CC revo4e a certi#icate o# eli$ibilit%1 A' Jes. As central personnel a$enc% o# the $overnment, the CC ma% revo4e a certi#icate o# eli$ibilit% motu propio. The power to issue a certi#icate o# eli$ibilit% carries with it the power to revo4e one that has been $iven. 0hether hearin$ is re*uired #or revocation depends on circumstances o# a case. (Thus, where the case 7simpl% involves the rechec4in$ o# e'amination papers and nothin$ more than a re-evaluation o# documents alread% in the records o# the CC accordin$ to a standard answer 4e% previousl% set b% it, notice and hearin$ is not re*uired. Instead, what Kwould appl% in such a case isL the rule o# res ipsa loquitor. (3a>o v. CC, -EE=) &' 0hat (urisdiction does the CC have over the personnel cases $iven b% statute to the (urisdiction o# the )erit %stems Board1 10 0ntonio B. 3achura, -utline42e)ie!er in Political a!, 307 (2006) 11 0ntonio B. 3achura, -utline42e)ie!er in Political a!, 307 (2006) 12 Bernas Primer at 3"6 (2006 ed.) A' It has onl% automatic review (urisdiction, not ori$inal (urisdiction. (&I v. CC, -EE-) C. N%t$re o, t(e Po;ers o, CSC The Commission is an administrative a$enc%, nothin$ more. As such, it can onl% per#orm powers proper to an administrative a$enc%. It can per#orm e'ecutive powers, *uasi-(udicial powers and *uasi- le$islative or rule-ma4in$ powers. -/ /. &$%li,ic%tions o, CSC Commissioners -. "atural-born citi>ens o# the :hilippines5 2. At the time o# their appointment, at least thirt%- #ive %ears o# a$e5 /. 0ith proven capacit% #or public administration5 =. )ust not have been candidates #or an% elective position in the elections immediatel% precedin$ their appointment. (Article IX-B, ection -(-)) 7. A##ointment o, CSC Commissioners The Chairman and the Commissioners shall be appointed b% the :resident with the consent o# the Commission on Appointments #or a term o# seven %ears without reappointment. 2# those #irst appointed, the Chairman shall hold o##ice #or seven %ears, a Commissioner #or #ive %ears, and another Commissioner #or three %ears, without reappointment. Appointment to an% vacanc% shall be onl% #or the une'pired term o# the predecessor. In no case shall an% )ember be appointed or desi$nated in a temporar% or actin$ capacit%. (Article IX-B, ection -(.)) 3e%son ,or St%))erin) o, Terms' -. To lessen the opportunit% o# the :resident to appoint a ma(orit% o# the bod% durin$ his term5 .. To ensure continuance o# the bod%, which alwa%s retains .G/ o# its membership. 3. The s%stem is e'pected to stabili>e the policies o# the bod% as maintained b% the remainin$ members. -= 4. Sco#e o, Civil Service S*stem The civil service embraces all branches, subdivisions, instrumentalities, and a$encies o# the &overnment, includin$ $overnment-owned or 13 Bernas Primer at 372 (2006 ed.) 14 Cruz, Philippine Political a!, p. 2"# (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence B FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
controlled corporations 2it" oiginal !"ates. (Article IX-B, ection .(-)) Test ,or "eterminin) ;(et(er % )overnment o;ne" or controlle" cor#or%tion is s$-:ect to t(e Civil Service L%;' The test is the manner o# its creation. Corporations created b% special charter are sub(ect to the Civil ervice, whereas corporations incorporated under the Corporation 3aw are not. (:"2C v. 3eo$ardo, -EDE) Cor#or%tions ;it( ori)in%l c(%rters. The% are those created b% special law, li4e &I, , 3ocal 0ater Districts and :A&C2?. (Corporations which are subsidiaries o# these chartered a$encies li4e the )anila @otel and :A3, are not within the covera$e o# the Civil ervice. -< Note' The moment, that a corporation ceases to be $overnment controlled, #or instance, i# it is privati>ed, it ceases to #all under the Civil ervice. -B &' Does the Department o# 3abor have a role over civil service members1 A' Jes. !ntities under the civil service s%stem are not completel% be%ond the reach o# Department o# 3abor or labor laws. (0hen a $overnment entit% that is under the Civil ervice enters into a contract, e.$., with a securit% a$enc% or (anitorial a$enc%, it becomes an indirect emplo%er o# the securit% $uards or the (anitors. In such a situation, under the 3abor Code, the liabilities #or wa$es are (oint and solidar% with the contractor. The law on wa$es on in the 3abor Code speci#icall% provides that 7emplo%er8 includes an% person actin$ directl% or indirectl% in the interest o# an emplo%er in relation to emplo%ees. (:hilippine Aisheries Development Authorit% v. "3?C M 2din ecurit% A$enc%, -EE.) ?. Cl%ssi,ic%tion o, Positions (under Section 2(2) for purpose of determining te manner of testing merit and fitness) 1. Com#etitive Positions 2. NonAcom#etitive Positions Com#etitive Positions As a $eneral rule, positions in all branches o# $overnment belon$ to the competitive service. (amson v. CA) 4%cts' :etitioner, the )a%or o# Caloocan Cit%, terminated the services o# respondent, the Assistant ecretar% to the )a%or, on the $round o# loss o# con#idence. ?espondent protested on the $round that his position belon$ed to the classi#ied service. :etitioner ar$ued that under the Civil ervice 3aw, the secretaries o# cit% ma%ors occupied primaril% 1$ Cruz, Philippine Political a!, p.2#0 (1##$ ed). 16 Bernas Primer at 374 (2006 ed.) con#idential position and respondent was a secretar% to the ma%or. <el"' The termination o# respondent is void. T"e position of Assistant Se!eta$ to t"e Ma$o s"ould #e !onsideed as #elonging to t"e !ompetiti%e se%i!e. The position o# ecretar% o# the )a%or and Assistant ecretar% are two distinct positions. The latter is o# a lower ran4 and is not primaril% con#idential. An assistant secretar% merel% helps in a subordinate capacit% the person clothed with the duties o# a secretar%. (amson v. CA, -=< C?A B<=) -9 4%cts' ?espondent was appointed as member o# intern%l sec$rit* st%,, o, t(e PA?CO3. @e was terminated alle$edl% #or loss o# con#idence, because he alle$edl% en$a$ed in pro'% bettin$. 0hen respondent sued #or reinstatement, the :A&C2? ar$ued that under :D -DBE, all its emplo%ees are classi#ied as con#idential. <el"' The classi#ication in :D -DBE can be no more than an initial determination and is not conclusive. It is the nature o# the position which #inall% determines whether a position is primaril% con#idential. ?espondent did not en(o% close intimac% with the appointin$ authorit% which would ma4e him a con#idential emplo%ee. As member o# the internal sta##, he was tas4ed with preventin$ irre$ularities amon$ the emplo%ees and customers, reportin$ unusual incidents and in#ractions, coordinatin$ with securit% department durin$ chips inventor%, re#ills, %ields and card shu##lin$, and escortin$ the deliver% o# table capital bo'es, re#ills and shoe bo'es. (CC v. alas, .9= C?A =-=) -D Cl%sses o, NonACom#etitive Positions -. :olic% Determinin$ .. :rimaril% Con#idential /. @i$hl% Technical Polic*A/eterminin) Position 2ne char$ed with la%in$ down o# principal or #undamental $uidelines or rules, such as that o# a head o# a department. -E Prim%ril* Con,i"enti%l Position 2ne denotin$ not onl% con#idence in the aptitude o# the appointee #or the duties o# the o##ice but #rim%ril* close intimac% which ensures #reedom o# intercourse without embarrassment or #reedom #rom mis$ivin$s or betra%als o# personal trust on con#idential matters o# state (De los antos v. )allare, D9 :hil .DE). Pro>imit* 3$le' The occupant o# a particular position can be considered a con#idential emplo%ee i# the pedominant eason wh% he was chosen b% the appointin$ authorit% was the latterHs belie# that he can share a close intimate relationship with the occupant which ensures #reedom o# discussion without #ear o# 17 5acinto 5imenez, Political a! Compendium, 36$ (2006 ed.) 1" 5acinto 5imenez, Political a! Compendium, 367 (2006 ed.) 1# Cruz, Philippine Political a!, p.2#3 (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence 9 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
embarrassment or mis$ivin$s o# possible betra%als o# personal trust and con#idential matters o# stare. Delos antos v. )allare) (0here the position occupied is remote #rom that o# the appointin$ authorit%, the element o# trust between them is no lon$er predominant, and there#ore, cannot be classi#ied as primaril% con#idential) The #ollowin$ are held to be primaril% con#idential, -. Chie# le$al counsel o# :"B. (Besa v. :"B) .. Cit% le$al o##icer (Cadiente v. antos) 3. :rovincial attorne%(&rino v. CC) (!o"ever, positions of te legal staff are not confidential) =. ecurit% $uards o# a vice-ma%or (Borres v. CA) 4%cts' +pon recommendation o# the vice- ma%or, the ma%or appointed respondents as sec$rit* )$%r"s o, t(e vice m%*or. The ma%or and vice ma%or lost in the election. As the new ma%or, petitioner terminated the services o# respondents #or lac4 o# con#idence. ?espondents sued #or reinstatement on the $round that their removal was ille$al. <el"' T(e #ositions o, res#on"ents Bsec$rit* )$%r"s o, t(e vice m%*orC %re #rim%ril* con,i"enti%l, as the% involve $ivin$ protection to the vice ma%or. The relationship between the vice ma%or and his securit% depend on the hi$hest o# trust and con#idence. @ence, the tenure o# respondents ended upon loss o# con#idence in them. (Borres v. CA, -</ C?A -.C) .C <i)(l* Tec(nic%l Position A hi$hl% technical position re*uires the appointee thereto to possess technical s4ill or trainin$ in the supreme or superior de$ree. The position o# a cit% en$ineer ma% be technical but not hi$hl% so because he is not re*uired or supposed to posses a supreme or superior de$ree o# technical s4ill. The duties o# a cit% en$ineer are eminentl% administrative in character and can be dischar$ed even b% non- technical men. (Delos antos v. )allare) In #ontecillo v. CSC, 200$, the C said that under Administrative Code o# -ED9, the CC is e'pressl% empowered to declare positions in the CC as primaril% con#idential. This si$ni#ies that the enumeration in the Civil ervice decree, which de#ines the non-career service, is not an e'clusive list. The Commission can supplement this enumeration, as it did when it issued )emorandum Circular .., s. -EE-, speci#%in$ positions in the Civil ervice which are considered primaril% con#idential 20 5acinto 5imenez, Political a! Compendium, 366 (2006 ed.) and, there#ore, their occupants hold tenure co- terminous with the o##icials the% serve. .- &' 0ho determines whether a position is polic%- determinin$, primaril% con#idential or hi$hl% technical1 A' It is a (udicial *uestion. It is the n%t$re o# the position "ic finall% determines whether a position is primaril% con#idential, polic%-determinin$ or hi$hl% technical. The initial classi#ication ma% be made b% the authorit% creatin$ the o##ice. !'ecutive pronouncements as to the nature o# the o##ice can be no more than initial determination o# the nature o# the o##ice. .. K&e competitive and non'competitive positions rougl% correspond to te classification in te Civil Service Code no" embodied in te (evised )dministrative Code of $*+,- ($) Career Service and (2) .on'Career Service.L 23
<. Cl%sses o, Service (under te (evised )dministrative Code) 1. C%reer Service 2. NonAC%reer Service 1. C%reer Service (-EEE Bar Fuestion) The career service is characteri>ed b%, -. !ntrance based on the merit and #itness to be determined as #ar as practicable b% competitive e'aminations, or based on hi$hl% technical *uali#ications5 .. 2pportunit% #or advancement to hi$her career positions5 3. ecurit% o# Tenure. .= The career service includes, 1. O#en C%reer #ositions #or appointment to which prior *uali#ication in an appropriate e'amination is re*uired. 2. Close" C%reer #ositions which are scienti#ic or hi$hl% technical in nature5 these include the #acult% and academic sta## o# state colle$es and universities, and scienti#ic and technical positions in scienti#ic or research institutions which shall establish and maintain their own merit s%stems5 3. Positions in t(e C%reer 7>ec$tive Service, namel%, +ndersecretar%, Assistant ecretar%, Bureau Director, Assistant Bureau Director, ?e$ional Director, Assistant ?e$ional Director, Chie# o# Department ervice and 21 0ntonio B. 3achura, -utline42e)ie!er in Political a!, 311 (2006) 22 See Bernas Commentar*, p 1016(2003 ed)6 See also 0ntonio B. 3achura, -utline42e)ie!er in Political a!, 311 (2006) 23 Bernas Commentar*, p 1017(2003 ed). 24 Cruz, Philippine Political a!, p.2#0 (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence D FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
other o##icers o# e*uivalent ran4 as ma% be identi#ied b% the Chie# !'ecutive ervice Board, all o# whom are appointed b% the :resident5 4. C%reer o,,icers, other that those in the Career !'ecutive ervice, who are appointed b% the :resident, such as the Aorei$n ervice 2##icers in the DAA. $. Commissione" o,,icers %n" enliste" men o, t(e Arme" 4orces, which shall maintain a separate merit s%stem5 6. Personnel o, )overnmentAo;ne" or controlle" cor#or%tions, whether per#ormin$ $overnmental or proprietar% #unctions, who do not #all under the non-career service5 and 7. Perm%nent l%-orers5 whether s4illed, semi-s4illed, or uns4illed. .< C%reer Service 7>ec$tives DC7SE. 2n )a% /-, -EE=, the CC issued )emorandum Circular "o. .- identi#%in$ the positions covered b% the C!. The )emorandum provides that, 7incumbents o# positions which are declared to be C! positions #or the #irst time pursuant to this ?esolution who hold permanent appointments thereto shall remain under permanent status in their respective positions. @owever, upon promotion or trans#er to other C! positions, these incumbents shall be under temporar% status in said other C! positions until the% *uali#%.8 .B C7S %n" Sec$rit* o, Ten$re. The mere #act that a position belon$s to the C! does not automaticall% con#er securit% o# tenure on the applicant. uch ri$ht will have to depend on the nature o# his appointment which, in turn, depends on his eli$ibilit% or lac4 o# it. A person who does not have the re*uisite *uali#ications #or the position cannot be appointed to it in the #irst place or, onl% as an e'ception to the rule, ma% be appointed to it onl% in an actin$ capacit% in the absence o# appropriate eli$ibles. The appointment e'tended to him cannot be re$arded as permanent even i# it ma% be so desi$nated. uch bein$ the case, he could trans#erred or reassi$ned without violatin$ the constitutional $uarantee o# securit% o# tenure. (De 3eon v. CA, .CC-) 3e0$isites ,or Sec$rit* o, Ten$re o, C7S em#lo*ee' -. Career ervice !li$ibilit% .. Appointment to the appropriate career e'ecutive service ran4. It must be stressed that the securit% o# tenure o# emplo%ees in the C! (e'cept - st and . nd level emplo%ees in the civil service) pertains onl% to ran4 and not to the o##ice or to the position to which the% ma% be appointed. (Thus, a C! o##icer ma% be trans#erred or reassi$ned #orm one position to another without losin$ his 2$ Cruz, Philippine Political a!, p.2#0 (1##$ ed). 26 0ntonio B. 3achura, -utline42e)ie!er in Political a!, 307 (2006) ran4 which #ollows him wherever he is trans#erred or reassi$ned. In #act, a C! o##icer su##ers no diminution in salar% even i# assi$ned to a C! position with lower salar% $rade, as he is compensated accordin$ to his C! ran4 and not on the basis o# the position or o##ice which he occupies. (&eneral v. ?oco, .CC-) 2. NonAC%reer Service The non-career service is characteri>ed b%, -. !ntrance on bases other than o# the usual tests o# merit and #itness utili>ed #or the career service5 2. Tenure which is limited to a period speci#ied b% law, or which is co-terminous with that o# the appointin$ authorit% or sub(ect to his pleasure, or which is limited to the duration o# a particular pro(ect #or which purpose emplo%ment was made. .9 The non-career service includes, -. !lective o##icials and their personal or con#idential sta##5 .. Department heads and other o##icials o# Cabinet ran4 who hold positions at the pleasure o# the :resident and their personal or con#idential sta##5 /. Chairmen and members o# commissions and boards with #i'ed terms o# o##ice and their personal or con#idential sta##5 =. Contractual personnel or those whose emplo%ment in the $overnment is in accordance with a special contract to underta4e a speci#ic wor4 or (ob, re*uirin$ special or technical s4ills not available in the emplo%in$ a$enc%, to be accomplished within a speci#ic period, which in no case shall e'ceed one %ear, and per#orm or accomplish the speci#ic wor4 or (ob, under their own responsibilit% with a minimum o# direction and supervision #rom the hirin$ a$enc%5 and $. !mer$enc% and seasonal personnel. .D &' Is the classi#ication in the ?evised Administrative Code (Career and .on'Career) and the classi#ication in ection .(.) (Competitive and .on'competitive) mutuall% e'clusive1 A' "o. ?ather, the% overlap and complement each other. The classi#ication in the Code is #or the purposes o# determinin$ tenure. The classi#ication in ection .(.) is #or purposes o# determinin$ the manner o# testin$ merit and #itness. I. Si)ni,ic%nce o, /istinction -et;een com#etitive %n" nonAcom#etitive #ositions 27 Cruz, Philippine Political a!, p.2#1 (1##$ ed). 2" Cruz, Philippine Political a!, p.2#2 (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence E FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
A##ointment to a competitive positions must be made accordin$ to merit and #itness as detemined' as fa as pa!ti!a#le' #$ !ompetiti%e e7amination. )erit and #itness in appointments to non-competitive positions are not determined b% competitive e'aminations5 but merit and #itness are re*uired. .E @. A##ointments in t(e Civil Service Appointments in the civil service shall be made onl% %ccor"in) to merit %n" ,itness to be determined, as #ar as practicable, -* com#etitive e>%min%tion. (Article IX-B, ection .(.)) 7>ce#t' To positions which are polic%-determinin$, primaril% con#idential, or hi$hl% technical.
1. Perm%nent A##ointments A permanent appointment shall be issued to a person who meets all the re*uirements #or the positions to which he is bein$ appointed, includin$ the appropriate eli$ibilit% prescribed, in accordance with the provision o# laws, rules and standards promul$ated in pursuance thereo#. (Administrative Code o# -ED9, Boo4 ;-A, ec. .9) 2. Tem#or%r* A##ointments In the absence o# appropriate eli$ibles and it becomes necessar% in the public interest to #ill a vacanc%, a temporar% appointment shall be issued to a person who meets all the re*uirement #or the position to which he is bein$ appointed e'cept the appropriate civil service eli$ibilit%. Temporar% appointments do not have a de#inite term and ma% be withdrawn or discontinued, with or without cause, b% the appointin$ power. /C The new Constitution now sa%s, 7Temporar% emplo%ees o# the &overnment shall be $iven such protection as ma% be provided b% law.8 (The provision is not sel#-e'ecutor%) &' A permanent appointment is e'tended. The Civil ervice Commission approves it as temporar% in the belie# that somebod% else is better *uali#ied. )a% the Commission do so1 A' "o. The sole #unction o# the Commission is to attest to the *uali#ication o# the appointee. (3ue$o v. CC, -EDB) /iscretion o, A##ointin) A$t(orit* The appointin$ authorit% has "iscretion who to appoint even in the career service o# the Civil ervice, where the appointee possesses the minimum *uali#ication re*uirements prescribed b% 2# Bernas Primer at 37$ (2006 ed.) 30 Cruz, Philippine Political a!, p.2#3 (1##$ ed). law #or the position. (3ue$o v. CC, -=/ C?A /.9) Thus, even i# o##icers and emplo%ees in the career service o# the Civil ervice en(o% the ri$ht to pre#erence in promotion, it is not mandator% that the vacanc% be #illed b% promotion. The appointin$ authorit% should be allowed the choice o# men o# his con#idence, provided the% are *uali#ied and eli$ible. (Central Ban4 v. CC -9- C?A 9==) The discretion o# the appointin$ authorit% is not onl% in the choice o# the person who is to be appointed, but also in t"e natue o !"aa!te of t"e appointment issued, i.e., whether the appointment is permanent or temporar%. (&e CSC ma%, o"ever, approve as merel% temporar% an appointment intended to be permanent "ere te appointee does not possess te requisite eligibilit% and te e/igenc% of te service demands tat te position be filled up, even in a temporar% capacit%.) 3ole o, CSC (-EE= Bar Fuestion) 7All the Commission is authori>ed to do is to chec4 that the appointee possesses the *uali#ications and appropriate eli$ibilit%. I# he does, his appointment is approved5 i# not, it is disapproved.8 (3ope> v. CC) The CC is not a co-mana$er, or surro$ate administrator o# $overnment o##ices and a$encies. Its #unctions and authorit% are limited to approvin$ or reviewin$ appointments to determine their compliance with re*uirements o# the Civil ervice 3aw. 2n its own the Commission does not have the power to terminate emplo%ment or to drop members #rom the rolls. (Torres v. CC, .CC-) S$-st%ntive 3e0$irement. A substantive re*uirement under ection -- o# the 2mnibus ervice ?ules and ?e$ulations is that an appointment should be submitted to the CC within /C da%s #rom issuance5 otherwise it shall be ine##ective. (See 2)"C v. )acarai$, .CC=) Le)%l St%n"in). Both the appointin$ authorit% and the appointee are the real part% interest, and both have le$al standin$, in a suit assailin$ a CC order disapprovin$ an appointment. (Abella Ir. v. CC) F. /is0$%li,ic%tions -. "o candidate who has lost in an% election shall, within one %ear a#ter such election, be appointed to an% o##ice in the &overnment or an% &overnment-owned or controlled corporations or in an% o# their subsidiaries. (6B) .. "o elective o##icial shall be eli$ible #or appointment or desi$nation in an% capacit% to an% public o##ice or position durin$ his tenure. (69) /. +nless otherwise allowed b% law or b% the primar% #unctions o# his position, no appointive I sweat, I bleed, I soar Service, Sacrifice, Excellence -C FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
o##icial shall hold an% other o##ice or emplo%ment in the &overnment or an% subdivision, a$enc% or instrumentalit% thereo#, includin$ &overnment-owned or controlled corporations or their subsidiaries. (69) &' 0hat is the purpose o# the prohibition o# appointment o# 7lame duc4s8 in ection B1 A' The e'tirpation o# the 7spoils s%stem.8 &' Are there e'ceptions to the rule a$ainst appointment o# elective o##icials1 A' Jes. The ;ice-:resident ma% be appointed member o# the Cabinet. A member o# Con$ress is desi$nated to sit in the Iudicial and Bar Council. /- &' Is the rule on appointive o##icials (69) applicable to members o# Cabinet1 A' "o. Aor them, the applicable rule is the stricter prohibition in Article ;II, ection -/. /. &' Distin$uish the rule on appointments o# members o# Con$ress and rule on elective o##icials (other than Con$ressmen). A' The $ st paragrap of Section , $overns elective o##icials. +nli4e the provision #or members o# Con$ress in Article ;I ection -/, which does not prohibit acceptance o# an appointment but merel% causes the #or#eiture o# the con$ressional seat i# the holder accepts an appointment, 1 st #%r%)r%#( o, Section po"i#its ele!ti%e offi!ials ot"e t"an mem#es of Congess fom a!!epting appointment duing t"ei tenue. I# the elective o##icial accepts an appointment without #irst resi$nin$ his elective position, the appointment is invalid. "either, however, does he thereb% #or#eit his elective seat. (Alores v. Drilon, -EE/) &' )a% Con$ress b% law authori>e the appointment o# elective o##icials1 A' "o. +nli4e the case o# appointive o##icers in . nd para$raph o# ection 9, Con$ress ma% not create e'ception on elective o##icials mentioned in - st para$raph o# ection 9. L. Sec$rit* o, Ten$re (-EE/, -EEE, .CC< Bar Fuestion) "o o##icer or emplo%ee o# the civil service shall be removed or suspended e'cept #or cause provided b% law. (6.(/)) 1. Si)ni,ic%nce o, Sec$rit* o, Ten$re The e##icienc% o# the a civil service s%stem depends lar$el% on the morale o# the o##icers and emplo%ees in the service. )orale, in turn, can be #atall% undermined when the securit% o# o##icers in the possession o# their o##ice is unprotected a$ainst the arbitrar% action o# superior o##icers. @ence, basic in an% civil service is a $uarantee o# securit% o# tenure, a $uarantee a$ainst arbitrar% impairment, whether total or partial o# the ri$ht to continue in the position held. // 31 Bernas Primer at 3"7 (2006 ed.) 32 Bernas Primer at 3"" (2006 ed.) 33 Bernas Primer at 37" (2006 ed.) 2. 14or C%$se Provi"e" -* L%;2 This is a $uarantee o# both procedural and substantive due process. 14or C%$se2 means #or reasons which the law and sound public polic% reco$ni>e as su##icient #or removal, that is le$al cause, and not merel% causes which the appointin$ power in the e'ercise o# discretion ma% deem su##icient. )oreover, the cause must relate to and e##ect the administration o# the o##ice, and must be restricted to somethin$ o# a substantial nature directl% a##ectin$ the ri$hts and interests o# the public. (De los antos v. )allare) 3. Cover%)e o, Sec$rit* o, Ten$re "o o##icer or emplo%ee o# the civil service shall be removed or suspended e'cept #or cause provided b% law. (6.(/)) ecurit% o# Tenure is en(o%ed onl% b% those who posses a #erm%nent %##ointment. /= 2ne does not become a permanent appointee unless *uali#ied #or the position, and this, even i# the appointment e'tended is mista4enl% desi$nated as permanent. The appointment o# one who is not *uali#ied can onl% be temporar% and it is understood #rom the outset that it is without #i'it% but endurin$ onl% at the pleasure o# the appointin$ authorit%. Aor an appointment to be permanent, it must be a eal appointment b% the appointin$ authorit% and not (ust a desi$nation b% one who does not have the appointin$ authorit%. (Thus, where the law sa%s that the o##icer is to be appointed b% the :resident, desi$nation b% the department secretar% does not result in a permanent appointment. (Binamira v. &arucho)) !ven one who has an appointment to a position which is subse*uentl% converted to a career position must %ield the position to one who has it i# he or she does not possess !aee eligi#ilit$.(Dima%u$a v. Benedicto II) A person la!8ing t"e ne!essa$ 4ualifi!ations who is $iven a temporar% appointment does not automaticall% become a permanent appointee when he or she ac*uires the re*uired *uali#ication. (Aor a temporar% appointee to become permanent, he must receive a new commission, that is, a permanent appointment i# he is to be considered permanent.) Persons occ$#*in) nonAcom#etitive #ositions %re %lso covere" -* t(e )$%r%ntee o, sec$rit* o, ten$re. The distinction between competitive and non-competitive is si$ni#icant onl% #or purposes o# appointment. The termination o# the o##icial relation o# o##icials and emplo%ees holdin$ primaril% con#idential positions on the $round o# loss of confidence can be (usti#ied because in that case their cessation #rom o##ice involves no removal but 34 Bernas Commentar*, p 102$(2003 ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence -- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
e/piration o# the term o# o##ice. (@ernande> v. ;ille$as, -= C?A <==, -EB<) /< 4%cts' :etitioner a watchman in the o##ice o# the provincial treasurer, was dismissed #or the convenience o# the province. @e has no civil service eli$ibilit%. @e sued #or reinstatement. <el"' Althou$h petitioner is not a civil service eli$ible, this is not a $round to dismiss him an%time without #ormal char$e. The position o# watchman #alls under the unclassi#ied service. Positions in t(e $ncl%ssi,ie" service %re %lso )$%r%ntee" sec$rit* o, ten$re. (Ba*uidra v. CAI, DC C?A -./) /B &' Do appointees to the #orei$n service who do not belon$ to the Career Corps en(o% securit% o# tenure li4e the Career Corp.1 A' "o. :olitical appointees in the #orei$n service possess 7tenure coterminous with that o# the appointin$ authorit% or sub(ect to his pleasure.8 (Astra*uillo et al v. )an$lapus, -EEC) &' Binamira was 7desi$nated8 b% the ecretar% o# Tourism as )ana$er o# the Tourism Authorit%. The law, however, re*uires that the )ana$er be appointed b% the :resident. Did Binamira ac*uire securit% o# tenure1 A' "o, because he did no receive a valid appointment. (Binamira v. $arucho, -EEC) &' Can one who does not have *uali#ications #or a position ac*uire securit% o# tenure therein1 A' "o, securit% o# tenure in an o##ice is ac*uired onl% b% one who has the *uali#ications #or that o##ice. (Dima%u$a v. Benedicto , .CC.) &' Are temporar% appointees protected b% the $uarantee o# securit% o# tenure1 A' "o. the% ma% be removed an%time. ()endiola v. Tancinco, -E9/) The new Constitution now sa%s, 7Temporar% emplo%ees o# the &overnment shall be $iven such protection as ma% be provided b% law.8 (The provision is not sel#-e'ecutor%) &' 0hat is the e'tent o# the :residentHs disciplinar% authorit% over presidential appointees who belon$ to the career service1 A' The power is limited. Career service o##icers and emplo%ees who en(o% securit% o# tenure ma% be removed onl% #or an% o# the causes enumerated b% law. (3arin .v. !'ecutive ecretar%, .DC C?A 9-/) 4. Tr%ns,ers Perm%nent Tr%ns,er. The trans#er o# a permanent emplo%ee to another permanent position without the consent o# the emplo%ee violates securit% o# tenure. (&loria. CA, .CCC) Tem#or%r* Tr%ns,er. 0hile a temporar% trans#er or assi$nment o# personnel is permissible even without the emplo%eeHs prior consent, it cannot be done when the trans#er is a preliminar% step toward his removal, or is a scheme to lure him awa% #rom his permanent position, or desi$ned to indirectl% terminate his service, or #orce his resi$nation. uch 3$ Bernas Primer at 37# (2006 ed.) 36 5acinto 5imenez, Political a! Compendium, 370 (2006 ed.) would in e##ect circumvent the provision which sa#e$uards the tenure o# o##ice o# those who are in the Civil ervice. (&loria v. CA, .CCC) 5. A-olition o, O,,ice 0hile abolition o# o##ice does not impl% removal o# the incumbent o##icer, this is true onl% where the abolition o# o##ice is done in $ood #aith and not merel% as a cover #or a removal otherwise not allowed b% the Constitution. (Briones v. 2smena, -E<D) Thus, #or abolition o# o##ice to escape the taint o# unconstitutionalit%, it must be made, -. In $ood #aith5 .. "ot #or personal or political reasons5 and /. "ot in violation o# the law. (?o*ue v. !ricta) Note' Abolition o# o##ice, even i# arisin$ #rom reor$ani>ation mandated b% law must be (usti#ied b% $ood #aith and public need. (Abro$ar v. &arrucho, -EE-) )oreover, abolition o# an o##ice created b% law can onl% be done also b% law. (!u$enio v. CC, -EE<) 6. 3eor)%niG%tion (-EDD Bar Fuestion) Abolition b% law as a result o# reor$ani>ation is a reco$ni>ed cause #or termination o# a $overnment emplo%ee. &' Does the :resident have the authorit% to reor$ani>e the e'ecutive department1 A' Jes. And this can include deactivation o# o##ices. As #ar as bureaus, a$encies or o##ices in the e'ecutive department are concerned, the :residentHs power o# control ma% (usti#% him to inactivate the #unctions o# a particular o##ice, or certain laws ma% $rant him the broad authorit% to carr% out reor$ani>ation measures. (Bu4lod n$ Nawanin$ !IIB v. !'ecutive ecretar%, .CC-) /9 . /ecl%r%tion o, O,,ice H%c%nt &' ection /< o# ?A B9-< declared all positions o# the Commissioners, !'ecutive 3abor Arbiters and 3abor Arbiters o# the present "3?C vacant. :etitioners *uestion its constitutionalit%. A' Un!onstitutional. 0hile abolition b% law as a result o# reor$ani>ation is a reco$ni>ed cause #or termination o# a $overnment emplo%ee, it is not the same as a declaration that the o##ice is vacant. ?A B9-< has e##ected no e'press abolition o# the positions, neither an implied abolition (i.e., an irreconcilable inconsistenc% between the nature, duties and #unctions o# the petitionerHs o##ices under the old rules and those o# the new law) ()a%or v. @on. )acarai$, -EE-) !. Preventive S$s#ension :endin$ administrative investi$ation, it is provided that the emplo%ee char$ed shall be sub(ect to 37 Bernas Primer at 3"3 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence -. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
preventive suspension but the same shall be li#ted a#ter ninet% da%s i# he is not a presidential appointee unless the dela% in the conduct o# the probe is imputable to him. (Boo4 ;(A), ec. =B) 6. +%c9 8%)es 0hen an emplo%ee is ille$all% dismissed, and his reinstatement is later ordered b% the Court, #or all intents and purposes he is considered as not havin$ le#t his o##ice, and notwithstandin$ the silence o# the decision, he is entitled to pa%ment o# bac4 salaries. (Del Castillo v. CC, -EE9) But where the reinstatement is ordered b% the court not as the result o# e'oneration but merel% as an act o# liberalit% o# the Court o# Appeals, the claim #or bac4wa$es #or the period durin$ which the emplo%ee was not allowed to wor4 must be denied. The $eneral rule is that a public o##icial is not entitled to compensation i# he has not rendered an% service. (Balitaosan v. D!C, .CC/) The pa%ment o# bac4wa$es durin$ the period o# suspension o# a civil servant who is subse*uentl% reinstated is proper onl% i# e is found innocent of te carges and the suspension is un0ustified. (See Bru$ada v. ec. o# !ducation, .CC<) M. P%rtis%n Politic%l Activit* 1. Cover%)e "o o##icer or emplo%ee in the civil service shall en$a$e, directl% or indirectl%, in an% electioneerin$ or partisan political campai$n.(6.(=)) The militar% establishment is covered b% this provision. Article X;I, ection <(/) provides that no member o# the militar% shall en$a$e directl% or indirectl% in an% partisan political activit% e'cept to vote. But this prohibition applies onl% to those in the active militar% service, not to reservists. (Cailles v. Boni#acio, B< :hil /.D) 7>ce#tions' 1. :articularl% e'empted #rom the prohibition a$ainst partisan political activit% are mem-ers o, t(e C%-inet. /D 2. :ublic o##icers and emplo%ees holdin$ political o##ices (who are allowed to ta4e part in political and electoral activities, e'cept to solicit contributions #rom their subordinates or commit acts prohibited under the !lection Code) (ection =< o# Civil ervice 3aw) /E 3" Cruz, Philippine Political a!, p.2#7 (1##$ ed). 3# 0ntonio B. 3achura, -utline42e)ie!er in Political a!, 320 (2006) 2. P$r#ose o, t(e Pro(i-ition A)%inst P%rtis%n Politic%l Activit* -. To prevent the members o# the civil service #rom usin$ the resources o# the $overnment #or the bene#it o# their candidates5 2. To insulate them #rom political retaliation #rom winnin$ candidates the% have opposed or not supported. =C 3. Me%nin) o, P%rtis%n Politic%l Activit* As interpreted b% the Civil ervice Commission, partisan political activit% means a!ti%e suppot fo o affiliation 2it" t"e !ause of a politi!al pat$ o !andidate. This would include, amon$ others, bein$ a candidate #or an% elective o##ice or dele$ate to an% political convention, bein$ an o##icer or member o# an% political committee, part% or or$ani>ation, deliverin$ speeches, canvassin$ or soli!iting %otes or political support or contributions #or an% political part% or candidate or, in $eneral, becomin$ activel% identi#ied with the success or #ailure o# an% candidate or candidates #or election to public o##ice. =- 4 A"min Co"e o, 16! 1"o o##icer or emplo%ee in the Civil ervice, includin$ members o# the AA:, shall en$a$e directl% or indirectl% in an% partisan political activit% or ta4e part in an% election e'cept to vote nor shall he use his o##icial authorit% or in#luence to coerce the political activit% o# an% other person or bod%. "othin$ herein provided shall be understood to prevent an% o##icer or emplo%ee #rom e'pressin$ his views on current political problems or issues, or #rom mentionin$ the names o# candidates #or public o##ice whom he supports, :rovided, That public o##icers and emplo%ees holdin$ political o##ices ma% ta4e part in political and electoral activities but it shall be unlaw#ul #or them to solicit contributions #rom their subordinates or sub(ect them to an% o# the acts involvin$ subordinates prohibition in the !lection Code.8 (Boo4 ;(A), ec. <B) N. 3i)(t to Sel,AOr)%niG%tion The ri$ht to sel#-or$ani>ation shall not be denied to $overnment emplo%ees. (6.(<)) Thus, the Con$ress ma% provide, #or e'ample, that temporar% emplo%ees who ac*uire civil service eli$ibilit% #or the positions occupied b% them shall be automaticall% considered permanent appointees thereto, or that temporar% emplo%ees ma% not be replaced durin$ a #i'ed period e'cept #or cause, or shall be entitled to the same material bene#its, such as leave privile$es, durin$ incumbenc%. =. 40 Cruz, Philippine Political a!, p.2#" (1##$ ed6 +antos ). 7atco, 106 Phil 74$) 41 +ection 14, 2ule 89%%%, Ci)il +er)ice 2ules. 42 Cruz, Philippine Political a!, p.300 (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence -/ FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
&' )a% members o# the Civil ervice unioni>e1 A' Jes. -. Article III, ection D $uarantees the ri$ht o# all 7includin$ those emplo%ed in the public and private sectors, to #orm unionsO8 .. Article IX-B, ection .(<) states that 7the ri$ht to sel#-or$ani>ation shall not be denied to $overnment emplo%ees.8 /. Article XIII, ection / $uarantees 7the ri$ht o# all wor4ers to sel#-or$ani>ation, collective bar$ainin$ and ne$otiations, and peace#ul concerted activities, includin$ the ri$ht to stri4e in accordance with law.8 Their ri$ht to stri4e, however, ma% be limited b% law. =/ 3i)(t to Stri9e ?i$ht to or$ani>e does not include the ri$ht to stri4e. @ence, the Court ruled that emplo%ees o# and public school teachers do not have a constitutional ri$ht to stri4e. This does not mean, however, that the% ma% not be $iven the ri$ht to stri4e b% statute. == O. Protection to Tem#or%r* 7m#lo*ees Temporar% emplo%ees o# the &overnment shall be $iven such protection as ma% be provided b% law. (6.(B)) P. St%n"%r"iG%tion o, Com#ens%tion The Con$ress shall provide #or the standardi>ation o# compensation o# $overnment o##icials and emplo%ees, includin$ those in $overnment-owned or controlled corporations with ori$inal charters, ta4in$ into account the nature o# the responsibilities pertainin$ to, and the *uali#ications re*uired #or, their positions. (Art. IX-B, 6<) &. /o$-le Com#ens%tion. A""ition%l Com#ens%tion "o elective or appointive public o##icer or emplo%ee shall receive additional, double, or indirect compensation, unless spe!ifi!all$ aut"oi6ed #$ la2, nor accept without the consent o# the Con$ress, an% present, emolument, o##ice, or title o# an% 4ind #rom an% #orei$n $overnment. :ensions or $ratuities shall not be considered as additional, double, or indirect compensation. (Art. IX-B, 6D) 1. 3e%son ,or Pro(i-ition 43 Bernas Primer at 3"$ (2006 ed.) 44 Bernas Commentar*, p 1027(2003 ed). 1. To in#orm the people o# the e'act amount a public #unctionar% is receivin$ #rom the $overnment so the% can demand commensurate services5 .. To prevent the public #unctionar% #rom dividin$ his time amon$ several positions concurrentl% held b% him and ineptl% per#ormin$ his duties in al o# them because he cannot devote to each the proper attention it deserves. 2. 8(%t is Pro(i-ite" The prohibition o# the Constitution was a$ainst double compensation or additional compensation, not double appointments. @ence, a second position ma% be held concurrentl% with the principal position as lon$ as the two are not incompatible, but the incumbent cannot collect additional salaries #or services rendered unless speci#icall% allowed b% law. (Fuimson v. 2>aeta) A""ition%l Com#ens%tion. There is additional compensation when #or one and the same o##ice #or which a compensation has been #i'ed there is added to such #i'ed compensation an e'tra reward in the #orm, #or instance, o# a bonus. This is not allowed in the absence o# law speci#icall% authori>in$ such e'tra reward. (Thus, where an o##icerHs pa% as provided b% law was a #i'ed per diem, the C disallowed additional compensation in the #orm o# cost o# livin$ allowances as well as incentive and Christmas bonuses. @owever, the Court was care#ul to point out that when a per diem or an allowance is $iven as reimbursement #or e'penses incident to the dischar$e o# an o##icerHs duties, it is not an additional compensation prohibited b% the Constitution. (:eralta v. )atha%, -EB9)) /o$-le Com#ens%tion. ?e#ers to two sets o# compensation #or two di##erent o##ices held concurrentl% b% one o##icer. In the instances when holdin$ a second o##ice is allowed, when an o##icer accepts a second o##ice, he can draw the salar% attached to the second o##ice onl% when he is speci#icall% authori>ed b% law to receive double compensation. =<
3. Me%nin) o, 1S#eci,ic%ll* A$t(oriGe" +* L%;2 Sti!t Intepetation9 :The authorit% re*uired b% the Constitution to receive double or additional compensation is a speci#ic authorit% $iven to a particular emplo%ee or o##icer o# the $overnment because o# peculiar or e'ceptional reasons warrantin$ the pa%ment o# e'tra or additional compensation.8 (adueste v. uri$ao, -E=-) 4$ Bernas Primer at 3"# (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence -= FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
(&e above interpretation seems to be too strict. 1t seems in effect to require a special la" for ever% instance of additional or double compensation. )n obiter dictum in te later case of 2uimson v. 34aeta, $*56, approves of a more liberal and peraps administrativel% more rational approac.) 76 Li#eal Intepetation9 7Accordin$ to law, under certain circumstances, the :resident ma% authori>e double compensation in some cases, such as $overnment o##icials actin$ as members with compensation in $overnment e'aminin$ boardO, or department secretaries actin$ as members o# Board o# Directors o# $overnment corporations, and in such cases the prohibition a$ainst double compensation is not observed. I# the :resident approves the double compensation, well and $ood. The appointee whose appointment ma% then be re$arded as valid #rom the be$innin$ could receive e'tra compensation. I# it is disapproved, then the appointment will have to be withdrawn or cancelled, unless o# course, the appointee was willin$ to serve without compensation, in which case there would be no valid ob(ection. (Fuimson v. 2>aeta, ED :hil 9C<, 9CE-9-C)) 0hen a law sa%s that mone% $enerated b% a school ma% be used #or 7other pro$ramsGpro(ects o# the universit% or colle$e,8 such a law is not authori>ation #or $ivin$ additional or double compensation. =9 &' +pon optional retirement #rom the (udiciar% on April -, -EE., antos was #ull% paid o# his retirement $ratuit% under ?A E-C, as amended. Aor #ive %ears therea#ter he has been receivin$ a monthl% pension. Therea#ter he was appointed Director III o# the de#unct ))A. D1E Can he continue to receive his pension while receivin$ salar% as director1 A' Jes. The second para$raph o# ection D means that a retiree receivin$ pension o# $ratuit% can continue to receive such pension or $ratuit% even i# he accepts another $overnment position to which another compensation is attached. D2E +pon separation #rom ))A, can his separation pa% under ?A 9.E= include %ears o# service in (udiciar%1 A' "o. That would be double compensation #or the same service in the (udiciar% #or which he has alread% been paid. ection -- o# ?A 9E.= does not speci#icall% authori>e pa%ment o# additional compensation #or %ears o# $overnment outside o# the ))A. (antos v. CA, .CCC) =D O. O%t( o, Alle)i%nce All public o##icers and emplo%ees shall ta4e an oath or a##irmation to uphold and de#end this Constitution. (Art. IX-B, 6=) 46 Bernas Primer at 3"# (2006 ed.) 47 Benguet State U v. Colting, :.2. 3o. 16#637, 5une ", 2007. 4" Bernas Primer at 3#0 (2006 ed.) III. Commission on 7lections Composition of COMELEC 3ualifi!ations of COMELEC Commissiones Appointment of COMELEC Commissiones Independen!e of COMELEC Natue of COMELEC Po2es Constitutional Po2es and O#1e!ti%es Statuto$ Po2es of COMELEC En ,an! and Di%ision Cases -udi!ial Re%ie2 Open Pat$ S$stem Repesentation Ele!tions Section 1. (-) There shall be a Commission on !lections composed o# a Chairman and si' Commissioners who shall be natural-born citi>ens o# the :hilippines and, at the time o# their appointment, at least thirt%-#ive %ears o# a$e, holders o# a colle$e de$ree, and must not have been candidates #or an% elective positions in the immediatel% precedin$ elections. @owever, a ma(orit% thereo#, includin$ the Chairman, shall be members o# the :hilippine Bar who have been en$a$ed in the practice o# law #or at least ten %ears. (.) The Chairman and the Commissioners shall be appointed b% the :resident with the consent o# the Commission on Appointments #or a term o# seven %ears without reappointment. 2# those #irst appointed, three )embers shall hold o##ice #or seven %ears, two )embers #or #ive %ears, and the last )embers #or three %ears, without reappointment. Appointment to an% vacanc% shall be onl% #or the une'pired term o# the predecessor. In no case shall an% )ember be appointed or desi$nated in a temporar% or actin$ capacit%. Sec. 2. The Commission on !lections shall e'ercise the #ollowin$ powers and #unctions, (-) !n#orce and administer all laws and re$ulations relative to the conduct o# an election, plebiscite, initiative, re#erendum, and recall. (.) !'ercise e'clusive ori$inal (urisdiction over all contests relatin$ to the elections, returns, and *uali#ications o# all elective re$ional, provincial, and cit% o##icials, and appellate (urisdiction over all contests involvin$ elective municipal o##icials decided b% trial courts o# $eneral (urisdiction, or involvin$ elective baran$a% o##icials decided b% trial courts o# limited (urisdiction. Decisions, #inal orders, or rulin$s o# the Commission on election contests involvin$ elective municipal and baran$a% o##ices shall be #inal, e'ecutor%, and not appealable. (/) Decide, e'cept those involvin$ the ri$ht to vote, all *uestions a##ectin$ elections, includin$ determination o# the number and location o# pollin$ places, appointment o# election o##icials and inspectors, and re$istration o# voters. (=) Deputi>e, with the concurrence o# the :resident, law en#orcement a$encies and instrumentalities o# the &overnment, includin$ the Armed Aorces o# the :hilippines, #or the e'clusive purpose o# ensurin$ #ree, orderl%, honest, peace#ul, and credible elections. I sweat, I bleed, I soar Service, Sacrifice, Excellence -< FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
(<) ?e$ister, a#ter su##icient publication, political parties, or$ani>ations, or coalitions which, in addition to other re*uirements, must present their plat#orm or pro$ram o# $overnment5 and accredit citi>ensP arms o# the Commission on !lections. ?eli$ious denominations and sects shall not be re$istered. Those which see4 to achieve their $oals throu$h violence or unlaw#ul means, or re#use to uphold and adhere to this Constitution, or which are supported b% an% #orei$n $overnment shall li4ewise be re#used re$istration. Ainancial contributions #rom #orei$n $overnments and their a$encies to political parties, or$ani>ations, coalitions, or candidates related to elections, constitute inter#erence in national a##airs, and, when accepted, shall be an additional $round #or the cancellation o# their re$istration with the Commission, in addition to other penalties that ma% be prescribed b% law. (B) Aile, upon a veri#ied complaint, or on its own initiative, petitions in court #or inclusion or e'clusion o# voters5 investi$ate and, where appropriate, prosecute cases o# violations o# election laws, includin$ acts or omissions constitutin$ election #rauds, o##enses, and malpractices. (9) ?ecommend to the Con$ress e##ective measures to minimi>e election spendin$, includin$ limitation o# places where propa$anda materials shall be posted, and to prevent and penali>e all #orms o# election #rauds, o##enses, malpractices, and nuisance candidacies. (D) ?ecommend to the :resident the removal o# an% o##icer or emplo%ee it has deputi>ed, or the imposition o# an% other disciplinar% action, #or violation or disre$ard o#, or disobedience to, its directive, order, or decision. (E) ubmit to the :resident and the Con$ress, a comprehensive report on the conduct o# each election, plebiscite, initiative, re#erendum, or recall. Section 3. The Commission on !lections ma% sit en banc or in two divisions, and shall promul$ate its rules o# procedure in order to e'pedite disposition o# election cases, includin$ pre- proclamation controversies. All such election cases shall be heard and decided in division, provided that motions #or reconsideration o# decisions shall be decided b% the Commission en banc. Section 4. The Commission ma%, durin$ the election period, supervise or re$ulate the en(o%ment or utili>ation o# all #ranchises or permits #or the operation o# transportation and other public utilities, media o# communication or in#ormation, all $rants, special privile$es, or concessions $ranted b% the &overnment or an% subdivision, a$enc%, or instrumentalit% thereo#, includin$ an% $overnment- owned or controlled corporation or its subsidiar%. uch supervision or re$ulation shall aim to ensure e*ual opportunit%, and e*ual rates there#or, #or public in#ormation campai$ns and #orums amon$ candidates in connection with the ob(ective o# holdin$ #ree, orderl%, honest, peace#ul, and credible elections. Section 5. "o pardon, amnest%, parole, or suspension o# sentence #or violation o# election laws, rules, and re$ulations shall be $ranted b% the :resident without the #avorable recommendation o# the Commission. Section 6. A #ree and open part% s%stem shall be allowed to evolve accordin$ to the #ree choice o# the people, sub(ect to the provisions o# this Article. Section . "o votes cast in #avor o# a political part%, or$ani>ation, or coalition shall be valid, e'cept #or those re$istered under the part%-list s%stem as provided in this Constitution. Section !. :olitical parties, or or$ani>ations or coalitions re$istered under the part%-list s%stem, shall not be represented in the votersP re$istration boards, boards o# election inspectors, boards o# canvassers, or other similar bodies. @owever, the% shall be entitled to appoint poll watchers in accordance with law. Section 6. +nless otherwise #i'ed b% the Commission in special cases, the election period shall commence ninet% da%s be#ore the da% o# election and shall end thirt% da%s therea#ter. Section 1I. Bona #ide candidates #or an% public o##ice shall be #ree #rom an% #orm o# harassment and discrimination. Section 11. Aunds certi#ied b% the Commission as necessar% to de#ra% the e'penses #or holdin$ re$ular and special elections, plebiscites, initiatives, re#erenda, and recalls, shall be provided in the re$ular or special appropriations and, once approved, shall be released automaticall% upon certi#ication b% the Chairman o# the Commission. A. Com#osition o, COM7L7C There shall be a Commission on !lections composed o# a C(%irm%n %n" si> Commissioners. (Article IX-C, ection -(-)) +. &$%li,ic%tions o, Mem-ers o, COM7L7C 1. "atural-born citi>ens o# the :hilippines5 2. At the time o# their appointment, at least thirt%- #ive %ears o# a$e5 /. @olders o# a colle$e de$ree5 4. )ust not have been candidates #or an% elective positions in the immediatel% precedin$ elections. A ma(orit% thereo#, includin$ the Chairman, shall be members o# the :hilippine Bar who have been en$a$ed in the practice o# law #or at least ten %ears. (Article IX-C, ection -(-)) &' Aor purposes o# this provision, what does 7engaged in t"e pa!ti!e of la28 mean1 A' It means to en$a$e in 7an% activit%, in or out o# court, which re*uires the application o# law, le$al procedure, 4nowled$e, trainin$ and e'perience.8 (Ca%etano v. )onsod, -EE-) I sweat, I bleed, I soar Service, Sacrifice, Excellence -B FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
C. A##ointment o, COM7L7C Mem-ers The Chairman and the Commissioners shall be appointed b% the :resident with the consent o# the Commission on Appointments #or a term o# seven %ears without reappointment. 2# those #irst appointed, three )embers shall hold o##ice #or seven %ears, two )embers #or #ive %ears, and the last )embers #or three %ears, without reappointment. Appointment to an% vacanc% shall be onl% #or the une'pired term o# the predecessor. In no case shall an% )ember be appointed or desi$nated in a temporar% or actin$ capacit%. (Article IX-C, ection -(.)) &' 0hat is the common startin$ point #or appointees to the Commission1 A' 4e-r$%r* 25 16!5 the da% the new Constitution too4 e##ect. Thus, in rec4onin$ the seven %ear term, countin$ must alwa%s start #rom Aebruar% . even i# the appointee too4 o##ice later. This wa% the sta$$erin$ o# the terms is preserved. =E 4%cts' ?espondents were appointed as ad interim Chairman and Commissioners o# the C2)!3!C. As their appointments were not acted upon b% the Commission on Appointments (C2A), the :resident renewed their ad interim appointments twice. :etitioner *uestioned the validit% o# appointments on the $round that the% violated the constitutional prohibition a$ainst temporar% appointments and reappointments to the C2)!3!C. <el"' An ad interim appointment is a permanent appointment, because it ta4es e##ect immediatel% and can no lon$er be withdrawn b% the :resident once the appointee has *uali#ied into the o##ice. The #act that is sub(ect to con#irmation b% C2A does not alter its permanent character. An ad interim appointment means it is a permanent appointment made b% the :resident in the meantime that Con$ress is in recess. T(e #ro(i-ition on re%##ointment in Section 1D2I5 Article IXAC o, t(e Constit$tion "oes not %##l* to % -*A#%sse" %" interim %##ointment5 -ec%$se t(ere is no ,in%l "is%##rov%l $n"er Article HII5 Section 16. T(ere m$st -e con,irm%tion -* t(e COA o, t(e #revio$s %##ointment -e,ore t(e #ro(i-ition on %##ointment c%n %##l*. I# an interim appointment cannot be renewed, the :resident will hesitate to ma4e ad interim appointments because most o# the appointees will e##ectivel% disapproved b% mere inaction o# the C2A. This will nulli#% the constitutional power o# the :resident to ma4e ad interim appointments. ()atiba$ v. Benipa%o,/DC C?A =E) <C &' In the absence o# a Chairman o# the C2)!3!C, the :resident desi$nated Commissioner Jorac Actin$ Chairman. ;alid1 A' "o. Article IX-C, ection -(.) prohibits the appointment o# )embers in a temporar% or actin$ 4# Bernas Primer at 3#1 (2006 ed.) $0 5acinto 5imenez, Political a! Compendium, 3"1 (2006 ed.) capacit%. The choice o# temporar% chairman #all under the discretion o# the Commission and cannot be e'ercised #or it b% the :resident. (Brillantes v. Jorac, -EEC) /. In"e#en"ence o, COM7L7C Aor violatin$ the constitutional mandate o# independence o# the C2)!3!C, ections -9.-E and .< o# ?A E-DE (3verseas )bsentee 8oting )ct of 2003) inso#ar as the% relate to the creation o# Ioint Con$ressional 2versi$ht Committee and $rant to it the power to review, revise, amend and approve the Implementin$ ?ules and ?e$ulations promul$ated b% the C2)!3!C, were declared unconstitutional. ()a4alintal v. C2)!3!C, .CC/) 7. N%t$re o, #o;ers o, t(e COM7L7C 3i4e the CC, the C2)!3!C is an administrative a$enc%. As such, there#ore, the power it possesses are e>ec$tive5 0$%siA:$"ici%l %n" 0$%siA le)isl%tive. B% e'ception, however, it has been $iven :$"ici%l #o;er as (ud$e with e'clusive ori$inal (urisdiction over 7all contest relatin$ to the election, returns, and *uali#ications o# all elective re$ional, provincial, and cit% o##icials, and appellate (urisdiction over all contest involvin$ elective municipal o##icials decided b% trial courts o# $eneral (urisdiction or involvin$ elective baran$a% o##icials decided b% trial courts o# limited (urisdiction. <- 4. Constit$tion%l Po;ers o, COM7L7C (under Article IX-C) ((ead complete te/t of Section 2 above) 1. 7n,orcement o, election l%;s. (ection . (-), (=),(B) and (D)). 2. /eci"in) election contests. (ection .(.)). 3. /eci"in) A"ministr%tive &$estions. (ection .(/)). 4. /e#$tiG%tion o, L%;Aen,orcement %)encies. (ection .(=)). $. 3e)istr%tion o, Politic%l P%rties. (ection .(<)) 6. Im#rovement o, elections. (ection .(9), (D) and (E)). 7. Po;er to Prom$l)%te 3$les (ection /) ". S$#ervision or re)$l%tion o, ,r%nc(ises (ection =) #. Po;er to recommen" e>ec$tive clemenc* ,or viol%tion o, election l%;s %n" r$les. (ection <) 10. In s#eci%l c%ses5 #o;er to ,i> t(e election #erio". (ection E) $1 Bernas Primer at 3#3 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence -9 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
1. 7n,orcement o, 7lection L%;s Section 2D1E' 7The Commission on !lections shall ''' KeLn#orce and administer all laws and re$ulations relative to the conduct o# an election, plebiscite, initiative, re#erendum, and recall.8 (See also Section 2(6) and (+)) uch authorit% includes, 1. :romul$ate rules and re$ulations #or the implementation o# election laws. (&allardo v. Tabamo, -EE/) 2. :ower to Ascertain identit% o# a political part% and its le$itimate o##icer. (3D: v. C2)!3!C) 3. B% virtue o# such authorit%, the C2)!3!C can re*uire compliance with the rules #or the #ilin$ o# certi#icates o# candidac%, prevent or prosecute election o##enses, supervise the re$istration o# voters and the holdin$ o# the polls, and see to tie that the canvass o# the votes and the proclamation o# the winners are done in accordance with law. <. 4. uch authorit% includes the power to annul an ille$al re$istr% o# voters, to cancel a proclamation made b% the board o# canvassers on the basis o# irre$ular or incomplete canvass, and even to oust the candidate proclaimed notwithstandin$ that he has alread% assumed o##ice. It ma% also re(ect nuisance candidates. </ $. :ower to annul an entire municipal election on the $round o# post-election terrorism. (C2)!3!C has e'tensive powers under the $eneral authorit% to 7en#orce and administer all laws relative to the conduct o# elections.8 (Biliwan$ v. C2)!3!C, -ED.) (@ere the C2)!3!C had #ound that it was impossible to distin$uish the ille$al #rom the valid returns. ("ote also that the C2)!3!C annulled the elections a#ter proclamation)) Po;er to #rom$l)%te r$les %n" re)$l%tions ,or t(e im#lement%tion o, election l%;s. The Commission ma% promul$ate rules and re$ulations #or the implementation o# election laws. uch power is deemed implicit in the power to implement re$ulations. (&allardo v. Tabamo, -EE/) Accordin$l%, where the sub(ect o# the action is the en#orcement o# the provisions o# the 2mnibus !lection Code, the case is within the e'clusive (urisdiction o# the C2)!3!C, not o# the re$ular courts. (&allardo v. Tabamo, -EE/) $2 Cruz, Philippine Political a!, p. 30" (1##$ ed). $3 Cruz, Philippine Political a!, p. 30" (1##$ ed). Po;er to Ascert%in i"entit* o, % #olitic%l #%rt* %n" its le)itim%te o,,icer. The power to en#orce and administer laws relative to the conduct elections, decide all *uestions a##ectin$ elections, re$ister and re$ulate political parties, and ensure orderl% elections, include the ascertainment o# the identit% o# political part% and its le$itimate o##icers. (3D: v. C2)!3!C, .CC=) (In this case the C held that the C2)!3!C erred in resolvin$ the controvers% b% $rantin$ o##icial candidate status to the 3D: candidates either the 7An$ara 0in$8 or the 7A*uino 0in$8, because clearl%, it is the :art% Chairman, who is the Chie# !'ecutive 2##icer o# the :art%, who has the authorit% to represent the part% in all e'ternal a##airs and concerns, and to si$n documents #or and in its behal#.) The re$ular courts have no (urisdiction to entertain a petition to en(oin the construction o# public wor4s pro(ects within =< da%s be#ore an election. (&allardo v. Tabamo, .-D C?A .</) Section 2D4E' 7The Commission on !lections shall ''' KdLeputi>e, with the concurrence o# the :resident, law en#orcement a$encies and instrumentalities o# the &overnment, includin$ the Armed Aorces o# the :hilippines, #or the e'clusive purpose o# ensurin$ #ree, orderl%, honest, peace#ul, and credible elections.8 Section 2D!E' 7The Commission on !lections shall ''' KrLecommend to the :resident the removal o# an% o##icer or emplo%ee it has deputi>ed, or the imposition o# an% other disciplinar% action, #or violation or disre$ard o#, or disobedience to, its directive, order, or decision.8 Article IXAC5 Section 2D!EJ Section 525 Omni-$s 7lection Co"e' The C2)!3!C has the power to recommend the imposition o# disciplinar% action upon an emplo%ee it has deputi>ed #or violation o# its order. ince the C2)!3!C can recommend that disciplinar% action be ta4en a$ainst an o##icer it had deputi>ed, it can investi$ate an administrative char$e a$ainst such an o##icer to determine whether or not it should recommend that disciplinar% action be ta4en a$ainst him. (Tan v. C2)!3!C, ./9 C?A /</) Section 2D6E' 7The Commission on !lections shall ''' K#Lile, upon a veri#ied complaint, or on its own initiative, petitions in court #or inclusion or e'clusion o# voters5 investi$ate and, where appropriate, prosecute cases o# violations o# election laws, includin$ acts or omissions constitutin$ election #rauds, o##enses, and malpractices.8 I sweat, I bleed, I soar Service, Sacrifice, Excellence -D FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
@$ris"iction to investi)%te %n" #rosec$te c%ses. The C2)!3!C has e>cl$sive (urisdiction to investi$ate and prosecute cases #or violations o# election laws. (De Iesus v. :eople, -.C C?A 9BC) @owever, the C2)!3!C ma% validl% dele$ate this power to the :rovincial Aiscal K:rosecutorL. (:eople v. Iud$e Basilla, -9E C?A D9) 4in"in) o, #ro-%-le c%$se. It is well-settled that the #indin$ o# probable cause in the prosecution o# election o##enses rests in the C2)!3!CHs sound discretion. The C2)!3!C e'ercises the constitutional authorit% to investi$ate and where appropriate, prosecute cases #or violation o# election laws, includin$ acts or omissions constitutin$ election, #raud, o##enses and malpractices. (Ba%tan v. C2)!3!C, .CC/) No o-li)%tion to se%rc( ,or evi"ence nee"e". C2)!3!C has no obli$ation to search #or the evidence needed. 8The tas4 o# the C2)!3!C as investi$ator and prosecutor, actin$ upon an% election o##ense complaint is not searchin$ and $atherin$ o# proo# in support o# a complaint #or alle$ed commission o# an election o##ense. A complainant, who in e##ect accuses another person o# havin$ committed an act constitutin$ an election o##ense, has the burden, as it is his responsibilit% to #ollow throu$h his accusation and prove the complaint.8 <= S$-:ect to %$t(orit* o, tri%l :$")e. 0hen the Commission acts as prosecutor, its actions and decision are sub(ect to the authorit% o# the trial (ud$e. !ven a#ter the Commission has decided that an in#ormation be #iled, a trial (ud$e be#ore whom the in#ormation is #iled ma% still order reinvesti$ation. A$t(orit* to "eci"e ;(et(er to %##e%l. This power to investi$ate and prosecute election law violations includes the authorit% to decide whether or not to appeal the dismissal o# a criminal case b% the trial court. (C2)!3!C v. ilva, .DB C?A -99) &' The C2)!3!C is $iven authorit% to investi$ate and prosecute violations o# the election law and ection 9 sa%s that decisions, orders and rulin$s o# the Commission ma% be reviewed onl% b% the C on certiorari. A#ter the preliminar% investi$ation conducted b% C2)!3!C law%ers and a#ter the C2)!3!C approves the report and orders the #ilin$ o# a criminal case, ma% the trial court order a reinvesti$ation and re*uire the presentation o# the records o# the preliminar% investi$ation made b% the C2)!3!C1 A' Jes. The #inal orders, rulin$s and decision o# the C2)!3!C reviewable on certiorari b% the C as provided b% law are those rendered in actions o# proceedin$s be#ore the C2)!3!C and ta4en co$ni>ance o# b% said bod% in the e'ercise o# its ad(udicator% or *uasi-(udicial powers. (such as $4 ;ilos'a*an ). C-&..C (1##7) decisions in election contests. It does not re#er to prosecutor% #unction o# the Commission) The ?TC on the other hand, is $iven e'clusive authorit% to tr% and decide criminal cases involvin$ elections. 0hen the C2)!3!C as prosecutor #iles a case be#ore a trial court, the trial court ac*uires (urisdiction and all subse*uent dispositions o# the case must be sub(ect to approval b% the court. @ence, the court ma% order reinvesti$ation and re*uire submission o# records o# the preliminar% e'amination to satis#% itsel# that there is probable cause #or the issuance o# a warrant o# arrest. (:eople v. @on. Del$ado, -EEC) The power o# the Commission under ection .(B) covers not (ust criminal cases but also administrative cases. (Thus, where the Commission has deputi>ed a Cit% :rosecutor as election canvasser, such :rosecutor cannot claim immunit% #rom the power o# the Commission on the ar$ument that he comes under the e'ecutive department. The Commission has power all persons re*uired b% law to per#orm duties relative to the conduct o# elections. @owever, under ection .(D), the Commission ma% merel% issue a recommendation #or disciplinar% action to the :resident.) << 2. /eci"in) 7lection Contests Section 2D2E' 7The Commission on !lections shall ''' KeL'ercise e>cl$sive ori)in%l :$ris"iction over all contests relatin$ to the elections, returns, and *uali#ications o# all elective re$ional, provincial, and cit% o##icials, and %##ell%te :$ris"iction over all contests involvin$ elective municipal o##icials decided b% trial courts o# $eneral (urisdiction, or involvin$ elective baran$a% o##icials decided b% trial courts o# limited (urisdiction. Decisions, #inal orders, or rulin$s o# the Commission on election contests involvin$ elective municipal and baran$a% o##ices shall be #inal, e'ecutor%, and not appealable. 7 Po;ers $n"er Section 2D2E' 1. 7>cl$sive ori)in%l :$ris"iction over all contests relatin$ to the elections, returns, and *uali#ications o# all elective re$ional, provincial, and cit% o##icials5 2. A##ell%te :$ris"iction over all contests involvin$ elective municipal o##icials decided b% trial courts o# $eneral (urisdiction, or involvin$ elective baran$a% o##icials decided b% trial courts o# limited (urisdiction. (&e enumeration found in Section 2(2) e/cludes 0urisdiction over elections for te Sangguniang 9abataan. :urisdiction over tese is given to te D1;<. ()lunan 111 v. #irasol, $**,) The C2)!3!C shall e'erciseO e>cl$sive ori)in%l :$ris"iction over all contests relatin$ to $$ Bernas Commentar*, p 10$$ (2003 ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence -E FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
the elections, returns, and *uali#ications o# all elective re$ional, provincial, and cit% o##icials. <B 8(o "eci"es #ro-lems involvin) 1elections5 ret$rns5 %n" 0$%li,ic%tions2 o, c%n"i"%tes= Con)ression%l C%n"i"%te' 2nce a winnin$ candidate has been proclaimed, ta4en his oath, and assumed o##ice as a )ember o# the @ouse o# ?epresentatives, C2)!3!CHs (urisdiction over election contests relatin$ to his election, returns and *uali#ications ends, and the @?!T8s own (urisdiction be$ins (A$$abao v. C2)!3!C, .CC<) M$nici#%l O,,ices' In the case o# municipal o##ices5 even i# the case be$an with the C2)!3!C be#ore proclamation be#ore the controvers% is resolved, it ceases to be a pre- proclamation controvers% and becomes a contest co$ni>able b% the Court o# Airst Instance. <9 &' 0hat is the di##erence between the (urisdiction o# the C2)!3!C be#ore the proclamation and its (urisdiction a#ter proclamation1 A' The di##erence lies in the due process implications. C2)!3!CHs (urisdiction over a pre- proclamation controvers% is administrative or *uasi- (udicial and is $overned b% the less strin$ent re*uirements o# administrative due process (althou$h the C has insisted that *uestion on 7*uali#ications8 should be decide onl% a#ter a #ull- dress hearin$). C2)!3!CHs (urisdiction over 7contests8 is (udicial and is $overned b% the re*uirements o# (udicial process. @ence, even in the case o# re$ional or provincial or cit% o##ices, it does ma4e a di##erence whether the C2)!3!C will treat it as a pre- proclamation controvers% or as a contest. <D 7>cl$sive @$ris"iction over #reA#rocl%m%tion c%ses. The C2)!3!C shall have e'clusive (urisdiction over all pre-proclamation controversies. (B: DD-, ection .=.) This should be construed as re#errin$ onl% to re$ional, provincial and cit% o##icials.(:an$ilinan v. C2)!3!C) <E ?A 9-BB ection -< #ro(i-its #reA#rocl%m%tion controversies in n%tion%l o,,ices De>ce#t on 0$estions involvin) t(e com#osition %n" #rocee"in)s o, t(e +o%r" o, C%nv%ssersE. 6I As re$ards national o##ices, "o pre-proclamation case is allowed re$ardin$ the preparation, transmission, receipt, custod% and appreciation o# $6 <ean Bautista= <ecide >uestions a,,ectin( elections ('ut not to 'e )oted ,or). $7 Bernas Primer at 3#6 (2006 ed.) $" Bernas Primer at 3#1 (2006 ed.) $# 5acinto 5imenez, Political a! Compendium, 3#0 (2006 ed.) 60 0ntonio B. 3achura, -utline42e)ie!er in Political a! 330 (2006 ed.) the election returns or certi#icate o# canvass. (:an$ilinan v. C2)!3!C, ..D C?A /B) B- In a con$ressional election, the losin$ candidate cannot #ile a petition #or correction o# mani#est errors. (;in>ons-Chato v. C2)!3!C, <.C C?A -BB) B. &' Does the C2)!3!C have authorit% to review contests involvin$ the election o# o##icers o# a baran$a% #ederation1 A' "o. the power o# the C2)!3!C is over popular elections. (Taule v. ecretar% antos, -EE-) The C2)!3!C shall have Oa##ell%te :$ris"iction over all contests involvin$ elective municipal o##icials decided b% trial courts o# $eneral (urisdiction, or involvin$ elective baran$a% o##icials decided b% trial courts o# limited (urisdiction. A##ell%te @$rsi"iction. The C2)!3!C e'ercises appellate (urisdiction over contests involvin$ municipal or baran$a% o##icials as ori$inall% decided b% re$ional or municipal trial courts, and its decision in these cases shall be #inal, e'ecutor% and not appealable &' ection E o# ?A BB9E ma4es decisions o# a municipal or metropolitan court in a baranga% election appealable to the re$ional trial court. Is this valid1 A' "o. The C2)!3!C has e'clusive appellate (urisdiction over all contests involvin$ baranga% elective o##icials decided b% trial court o# limited (urisdiction. The (urisdiction o# the C2)!3!C, however, is over *uestions o# #act5 *uestions o# law $o to the upreme Court. (Alores v. C2)!3!C, -EEC) Po;er to iss$e ;rits. The appellate (urisdiction includes, b% virtue o# ection <C o# B: EB9, the power to issue writs o# certiorari, prohibition and mandamus. B/ The C2)!3!C has the power to review decisions o# municipal courts on municipal election contests. And when it does so, the entire case is not opened as what happens in appeals on criminal cases. B= Perio" to A##e%l ,rom 3TC. Appeal to the C2)!3!C #rom the ?TC must be #iled within < da%s #rom receipt o# a cop% o# the decision. A motion #or reconsideration o# the ?TC decision is a prohibited pleadin$, and does not interrupt the runnin$ o# the period #or appeal. (;eloria v. C2)!3!C) B< 61 5acinto 5imenez, .lection a! 37 (200"). 62 5acinto 5imenez, .lection a! 37 (200"). 63 Bernas Commentar*, p 104" (2003 ed). 64 Manzala v. Comelec, :2 176211m &a* ", 2007. 6$ 0ntonio B. 3achura, -utline42e)ie!er in Political a! 332 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence .C FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
+nder C2)!3!C ?ules o# :rocedure, the mere #ilin$ o# the "otice o# Appeal is not enou$h5 it should be accompanied b% pa%ment o# the correct amount o# appeal #ee, in order that the appeal ma% be deemed per#ected. BB 7>ec$tion Pen"in) A##e%l. The C2)!3!C cannot deprive the ?TC o# its competence to order e'ecution o# (ud$ment pendin$ appeal, because the mere #ilin$ o# appeal does not divest the trial court o# its (urisdiction over a case and the authorit% to resolve pendin$ incidents. (!ddin$ v. C2)!3!C, .=B C?A <C.) B9 3%tion%le. uch e'ception is allowed in election cases 7to $ive as much reco$nition to the worth o# the trial (ud$eHs decision as that which is initiall% ascribed b% the law to the proclamation o# the board o# canvassers8. Indeed, to deprive trial courts o# their discretion to $rant e'ecution pendin$ appeal would 7brin$ bac4 the $host o# the Q$rab-the-proclamation, prolon$ the protestH techni*ues so o#ten resorted to b% devious politicians in the past in their e##orts to perpetuate their hold on an elective public o##ice.8 (antos v. C2)!3!C, .CC/) BD It was held that ?TC ma% $rant a motion #or e'ecution pendin$ appeal when there are valid and special reasons to $rant the same such as, -. The public interest or the will o# the electorate5 .. The shortness o# the remainin$ portion o# the term5 /. The len$th o# time that the election contest has been pendin$. ("avarosa v. C2)!3!C, .CC/) The motion #or e'ecution pendin$ appeal should be #iled be#ore the e'piration o# the period #or appeal. (?elampos v. Cumba, .=/ C?A 9<9) &' Does the C2)!3!C have (urisdiction to issue writs o# certiorari, mandamus, quo "arranto or abeas corpus1 A' Jes, it does, but onl% in aid o# its appellate (urisdiction over election protest cases involvin$ elective municipal o##icials decided b% courts o# $eneral (urisdiction. (This means that its (urisdiction is concurrent with that o# the upreme Court under Article ;III, ection <(-). (Carlos v. Iud$e An$eles, .CCC) BE Con)ression%l C%n"i"%te. The $eneral rule is that the proclamation o# a con$ressional candidate 66 0ntonio B. 3achura, -utline42e)ie!er in Political a! 332 (2006 ed.) 67 0ntonio B. 3achura, -utline42e)ie!er in Political a! 332 (2006 ed.) 6" 0ntonio B. 3achura, -utline42e)ie!er in Political a! 332 (2006 ed.) 6# Bernas Primer at 3#3 (2006 ed.) divests C2)!3!C o# (urisdiction in #avor o# the proper !lectoral Tribunal R unless the proclamation was invalid. 9C Ple-iscites. The Comelec has (urisdiction over cases involvin$ plebiscites. Thus where the *uestion was whether the electorate o# Ta$ui$ voted in #avor o#, or a$ainst the conversion o# the municipalit% o# Ta$ui$ into a hi$hl% urbani>ed cit% in the plebiscite conducted #or the purpose, the Comelec correctl% assumed (urisdiction. The problem was not #or re$ular courts. It was not a case callin$ #or the e'ercise o# (udicial power since it did not involve the violation o# an% le$all% demandable ri$ht and its en#orcement. There was no plainti## or de#endant in the case. It merel% involved the ascertainment o# the vote o# the electorate o# Ta$ui$. 9- &' Does the Commission have the power to trans#er municipalities #orm one con$ressional district to another #or the purpose o# preservin$ proportionalit%1 A' "o. This is not one o# the broad power $ranted b% ection .(.). "either is it what is re#erred to b% the 2rdinance Appended to the Constitution (ections . and /) authori>in$ the Commission to ma4e 7 minor ad(ustments8. The deliberations o# the Constitutional Commission on the sub(ect clearl% e'cluded the power to trans#er whole municipalities. ()onte(o v. C2)!3!C, -EE<) Po;er to P$nis( Contem#t. The power to punish contempt can be e'ercised onl% in connection with (udicial #unctions and not administrative #unctions. ()asan$ca% v. C2)!3!C, B C?A .9) Decisions, #inal orders, or rulin$s o# the Commission on election contests involvin$ elective municipal and baran$a% o##ices s(%ll -e ,in%l5 e>ec$tor*5 %n" not %##e%l%-le. 7 . (&is rule does not conflict "it te minimum appellate 0urisdiction of te SC under )rticle 8111, Section 5(2), "ic covers onl% te final 0udgments and orders of courts of 0ustice. &e Commission is not a 0udicial tribunal but onl% an administrative bod%.) It should be noted that, its decisions, orders and rulin$s ma% be challen$ed in a petition #or certiorari with the C under Article IX-A, ection 9, on the $round o# $rave abuse o# discretion. 9. The non-appealable character re#ers onl% to *uestions o# #act and not o# law. uch decisions remain sub(ect to the (urisdiction o# the C throu$h the special civil action o# certiorari under ?ule B< in accordance with Article IX-A, ection 9.(?ivera v. C2)!3!C, -EE-) 3. /eci"in) A"ministr%tive &$estions 70 Planas v Comelec, G.R. No. 167594, March 10, 2006. 71 Buac and Bautista v. Comelec, :.2. 3o. 1$$"$$, 5anuar* 26, 2004. 72 Cruz, Philippine Political a!, p. 311 (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence .- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Section 2D3E' 7The Commission on !lections shall ''' KdLecide, e'cept those involvin$ the ri$ht to vote, all *uestions a##ectin$ elections, includin$ determination o# the number and location o# pollin$ places, appointment o# election o##icials and inspectors, and re$istration o# voters.8 &$estions on 3i)(t to Hote. The C2)!3!C cannot decide the ri$ht to vote, which re#ers to the inclusion or e'clusion o# voters. (.CC- Bar Fuestion) The Constitution prevents the C2)!3!C, in the e'ercise o# its administrative powers and #unctions, to decide *uestions involvin$ the ri$ht to vote. (It ma% do so, however, in the dischar$e o# its duties concernin$ re$istration o# voters, e'cept that its decision shall be sub(ect to (udicial review. uch power comes within its *uasi-(udicial authorit% and ma% be validl% e'ercised as incidental to its powers o# re$ulation.) 9/ C(%n)e in #ollin) #l%ces. 0hile chan$es in the location o# pollin$ places ma% be initiated b% the written petition o# the ma(orit% o# the voters, or b% a$reement o# all the political parties, ultimatel%, it is the C2)!3!C that determines whether a chan$e is necessar% a#ter due notice and hearin$. (Cawasa v. C2)!3!C, .CC.) The upreme Court held that the contempt power con#erred upon the C2)!3!C b% law was an inherentl% (udiciall% prero$ative and could not be e'ercised b% it in connection with the dischar$e o# its purel% routinar% or administrative duties, as distin$uished #rom *uasi-(udicial duties. (&uevara v. C2)!3!C) 4. /e#$tiG%tion o, L%; 7n,orcement A)encies Section 2D4E' 7The Commission on !lections shall ''' KdLeputi>e, with the concurrence o# the :resident, law en#orcement a$encies and instrumentalities o# the &overnment, includin$ the Armed Aorces o# the :hilippines, #or the e'clusive purpose o# ensurin$ #ree, orderl%, honest, peace#ul, and credible elections.7 It should be stressed that this power ma% be e'ercised onl% with the consent o# the :resident, or ne$ativel% stated, ma% not be e'ercised without his permission. 9= 73 Cruz, Philippine Political a!, p. 313 (1##$ ed)6 Nachura: As an incident to its duties concernin$ re$istration o# voters, it ma% decide a *uestion involvin$ the ri$ht to vote, -$t its decision shall be sub(ect to (udicial review. 0ntonio B. 3achura, -utline42e)ie!er in Political a! 334 (2006 ed.) 74 Bernas Commentar*, p 10$2 (2003 ed). &' 0hat is the scope o# power o# the Commission over deputi>ed o##icers1 A' The power o# the Commission over deputi>ed o##icers under ection .(B) covers not (ust criminal cases but also administrative cases. Thus, where the Commission has deputi>ed a Cit% :rosecutor as election canvasser, such :rosecutor cannot claim immunit% #orm the power o# the Commission on the ar$ument that he comes under the e'ecutive department. The Commission has power over all persons re*uired b% law to per#orm duties relative to the conduct o# elections. @owever, under ection .(D), the Commission ma% merel% issue a recommendation #or disciplinar% action to the :resident. (Tan v. C2)!3!C, -EE=) &' 0hat is one instance that the C2)!3!C is subordinated to the :resident1 A' ection .(D) provides that the C2)!3!C ma% merel% 7recommend to the :resident the removal o# an% o##icer or emplo%ee it has deputi>ed, or the imposition o# an% disciplinar% action, #or violation or disre$ard o#, or disobedience to, its decision, order, or directive.8 9< 5. 3e)istr%tion o, Politic%l P%rties Section 2D5E' 7The Commission on elections shall ''' KrLe$ister, a#ter su##icient publication, political parties, or$ani>ations, or coalitions which, in addition to other re*uirements, must present their plat#orm or pro$ram o# $overnment5 and accredit citi>ensP arms o# the Commission on !lections. ?eli$ious denominations and sects shall not be re$istered. Those which see4 to achieve their $oals throu$h violence or unlaw#ul means, or re#use to uphold and adhere to this Constitution, or which are supported b% an% #orei$n $overnment shall li4ewise be re#used re$istration. Ainancial contributions #rom #orei$n $overnments and their a$encies to political parties, or$ani>ations, coalitions, or candidates related to elections, constitute inter#erence in national a##airs, and, when accepted, shall be an additional $round #or the cancellation o# their re$istration with the Commission, in addition to other penalties that ma% be prescribed b% law.8 P$r#ose o, 3e)istr%tion. 1. To ac*uire (uridical personalit% 2. To *uali#% #or accreditation, 3. To be entitled to the ri$hts o# political parties, a political part% must be re$istered with the C2)!3!C (ection BC, 2mnibus !lection Code) 3e%son ,or #resent%tion o, #l%t,orms %n" #ro)r%ms. It is essential that political parties present their pro$rams and plat#orms o# $overnment #or the in#ormation o# the electorate whose support the% are see4in$ as otherwise the voters ma% not properl% and intelli$entl% e'ercise 7$ Cruz, Philippine Political a!, p. 314 (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence .. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
their su##ra$es. This rule will also enable the Commission to determine i# the part% see4in$ re$istration is not entitled thereto because it is a reli$ious $roup, or is subversive in nature or purpose, or does not reco$ni>e the Constitution, or bein$ supported b% a #orei$n $overnment. Politic%l P%rt*. ection DC o# the -EB< !lection Code and ection .. o# the -E9- !lection Code de#ined a political part% as 7an or$ani>ed $roup o# person pursuin$ the same political ideals in a $overnment and includes its branches and divisions..8 the -E9D !lection Code adopted the a#ore*uoted de#inition b% providin$ in ection -EE that 7an% other $roup o# persons pursuin$ the same political ideals in the $overnment ma% re$ister with the Commission and be entitled to the same ri$ht and privile$es.8 (&eronimo v. C2)!3!C, -ED-) 9B ?ro$#s ;(ic( c%nnot -e re)istere" %s #olitic%l #%rties' -. ?eli$ious denominations or sects5 .. Those who see4 to achieve their $oals throu$h violence or unlaw#ul means5 /. Those who re#use to uphold and adhere to the Constitution5 and =. Those supported b% #orei$n $overnments (Article IX-C, ection.(<)) ?ro$n"s ,or C%ncell%tion o, 3e)istr%tion. +nder ?A 9E=-, C2)!3!C ma% motu propio or upon a veri#ied complaint o# an% interested part%, re#use or cancel, a#ter due notice and hearin$, the re$istration o# an% national, re$ional or sectoral part%, or$ani>ation or coalition, on an% o# the #ollowin$ $rounds, -. It is a reli$ious sect or denomination, or$ani>ation or association or$ani>ed #or reli$ious purposes5 .. Advocates violence or unlaw#ul means to see4 its $oal5 /. It is a #orei$n part% or or$ani>ation5 =. It is receivin$ support #rom an% #orei$n $overnment5 #orei$n political part%, #oundation, or$ani>ation, whether directl% or throu$h an% o# its o##icers or members, or indirectl% throu$h third parties, #or partisan election purposes5 <. It violates or #ails to compl% with laws, rules and re$ulations relatin$ to elections5 B. T declares untruth#ul statements in its petition5 9. It has ceased to e'ist #or at least one %ear5 D. It #ails to participate in the last two precedin$ elections, or #ails to obtain at least .S o# the votes cast under the part%-list s%stem in the two precedin$ elections #or the constituenc% in which it was re$istered. 76 Bernas Primer at 404 (2006 ed.) One c%n"i"%te #er #%rt* ,or e%c( Politic%l P%rt*. The C annulled the C2)!3!C resolution dividin$ the 3D: into 7win$s8, each o# which nominate candidates #or ever% elective position and be entitled to representation in the election committees that the C2)!3!C create. The Court declared that the electoral process envisions one candidate #rom a political part% #or each position, and disunit% and discord amon$st members o# a political part% should not be allowed to create a moc4er% thereo#. B% accordin$ both win$s representation in the election committees, the C2)!3!C has eroded the si$ni#icance o# political parties and e##ectivel% divided the opposition. (3D: v. C2)!3!C) &' To re$ister #or purposes o# the electoral process, must an or$ani>ation be a political part%1 A' "o. 99 &' Is there a distinction between an accredited political part% and a re$istered political part%1 A' The concept o# accreditation no lon$er appears in the new Constitution. Aor purpose o# the electoral process, all parties, or$ani>ations and coalitions are considered e*ual. 9D 6. Im#rovement o, 7lections Section 2DE' 7The Commission on !lections shall ''' KrLecommend to the Con$ress e##ective measures to minimi>e election spendin$, includin$ limitation o# places where propa$anda materials shall be posted, and to prevent and penali>e all #orms o# election #rauds, o##enses, malpractices, and nuisance candidacies.8 The 2mnibus !lection Code has e'panded the list o# prohibited election practices, chan$ed the limitations on the e'penses to be incurred b% political parties or candidates, allows the C2)!3!C to re#use to $ive due course to certi#icates o# nuisance candidates and assures e*ual treatment #or all candidates privile$ed or not. 9E Section 2D6E' 7The Commission on !lections shall ''' KsLubmit to the :resident and the Con$ress, a comprehensive report on the conduct o# each election, plebiscite, initiative, re#erendum, or recall.8 The report mentioned here can be the basis o# le$islation that ma% improve the conduct o# #uture elections. DC . Po;er to Prom$l)%te 3$les o, Proce"$re 77 Bernas Primer at 40$ (2006 ed.) 7" Bernas Primer at 40$ (2006 ed.) 7# Cruz, Philippine Political a!, p. 317 (1##$ ed). "0 Cruz, Philippine Political a!, p. 317 (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence ./ FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Section 3' 7The Commission on !lections ma% sit en banc or in two divisions, and shall promul$ate its rules o# procedure in order to e'pedite disposition o# election cases, includin$ pre- proclamation controversies. All such election cases shall be heard and decided in division, provided that motions #or reconsideration o# decisions shall be decided b% the Commission en banc. COM7L7C 3$les v. 3$les o, Co$rt. hould there be a con#lict between a rule o# procedure promul$ated b% the Commission and a ?ule o# Court, i# the proceedin$ is be#ore the Commission , the Commission rule should prevail5 but i# the proceedin$ is in court, the ?ules o# Court should prevail. ( Aruelo v. CA, -EE/) !. S$#ervision or 3e)$l%tion o, 4r%nc(ises Section 4' 7The Commission ma%, durin$ the election period, supervise or re$ulate the en(o%ment or utili>ation o# all #ranchises or permits #or the operation o# transportation and other public utilities, media o# communication or in#ormation, all $rants, special privile$es, or concessions $ranted b% the &overnment or an% subdivision, a$enc%, or instrumentalit% thereo#, includin$ an% $overnment-owned or controlled corporation or its subsidiar%. uch supervision or re$ulation shall aim to ensure e*ual opportunit%, and e*ual rates there#or, #or public in#ormation campai$ns and #orums amon$ candidates in connection with the ob(ective o# holdin$ #ree, orderl%, honest, peace#ul, and credible elections.8 C(%veG v. COM7L7C5 2II4' The C upheld the validit% o# ection /., ?esolution "o. B<.C, providin$ that all materials showin$ the picture, ima$e or name o# a person, and all advertisements on print, in radio or on television showin$ the ima$e or mentionin$ the name o# a person, who subse*uent to the placement or displa% thereo# becomes a candidate #or public o##ice shall be immediatel% removed, otherwise the person and the radio station shall be presumed to have conducted premature campai$nin$ in violation o# ection DC o# the 2mnibus !lection Code. PPI v. COM7L7C5 244 SC3A 22' The C invalidated the C2)!3!C resolution re*uirin$ newspapers to $ive, #or #ree, one-hal# pa$e newspaper space #or use b% the C2)!3!C. This was held to be an invalid e'ercise o# the police power, there bein$ no imperious public necessit% #or the ta4in$ o# the newspaper space. S8S v. COM7L7C5 1!1 SC3A 526' The C held that this power ma% be e'ercised onl% over the media, not over practitioners o# media. Thus, in this case the C invalidated a C2)!3!C resolution prohibitin$ radio and T; commentators and newspaper columnists #rom commentin$ on the issues involved in the #orthcomin$ plebiscite #or the rati#ication o# the or$anic law establishin$ the CA?. &' Does the power to re$ulate media durin$ 7election period8 also e'tend to the period o# a plebiscite or re#erendum1 A' Jes. 2# essence to plebiscite and re#erenda is 7#air submission.8 )oreover, the #ormulation o# the Constitution is more important in a sense than choice o# men who will implement that charter. !videntl%, there#ore, re$ulator% power durin$ the period o# plebiscite or re#erendum, is also intended. (+nido v. C2)!3!C, -ED-) 6. Po;er to 3ecommen" 7>ec$tive Clemenc*K Section 5' 7"o pardon, amnest%, parole, or suspension o# sentence #or violation o# election laws, rules, and re$ulations shall be $ranted b% the :resident without the #avorable recommendation o# the Commission.8 1I. In S#eci%l C%ses5 Po;er to 4i> 7lection Perio" Section 6' +nless otherwise #i'ed b% the Commission in special cases, the election period shall commence ninet% da%s be#ore the da% o# election and shall end thirt% da%s therea#ter. 7lection Perio" v. C%m#%i)n Perio". Ele!tion peiod re#ers to the period o# time needed #or administerin$ an election. It can thus $o be%ond the date #or the castin$ o# ballots. D-
Campaign peiod re#ers to the period o# active solicitation o# votes. This ma% be set b% the le$islature #or a period less than the election period. D. Campaign peiod !annot e7tend #e$ond t"e ele!tion da$. D/ &' !numerate some speci#ic recommendator% powers o# C2)!3!C. A' ection .(9), (D) and (E). (See also Section 5) 7. St%t$tor* Po;ers 1. The C2)!3!C shall have e/clusive char$e o# the en#orcement and administration o# all laws relative to the conduct o# elections. (B: DD-, ection <.) .. !'ercise direct and immediate supervision and control over national and local o##icials or emplo%ees. (B: DD-, ection <.(a)). /. The power to authori>e an% members o# AA:, :":, "BI to act as deputies durin$ the period o# campai$n and endin$ /C da%s therea#ter when in an% are o# the countr% there are "1 Bernas Commentar*, p 1062 (2003 ed). "2 Bernas Commentar*, p 1062 (2003 ed). "3 Cruz, Philippine Political a!, p. 31" (1##$ ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence .= FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
persons committin$ acts o# terrorism. (B: DD-, ection <.(b)). =. :romul$ate rules and re$ulations implementin$ provisions o# laws which the Commission is re*uired to en#orce. (B: DD- ection <.(c)). $. :ower to summon parties to a controvers% pendin$ be#ore it. (B: DD-, ection <.(d)) 6. Po;er to #$nis( contem#t. (B: DD-, ection <.(d)) 9. :ower to en#orce and e'ecute its decisions, directives, orders and instructions. (B: DD-, ection <.(#)) D. :ower to prescribe #orms to be used in the election, plebiscite or re#erendum. E. :ower to procure an% supplies, e*uipment, materials or services needed #or holdin$ o# elections. (B: DD-, ection <.(h)) 10. Po;er to #rescri-e $se or %"o#tion o, t(e l%test tec(nolo)ic%l "evices. (B: DD-, ection <.(i)) 11. Po;er to #rescri-e l%test tec(nolo)ic%l %n" electronic "evices $#on notice to %ccre"ite" #olitic%l #%rties %n" c%n"i"%tes not less t(%n 3I "%*s -e,ore. T(e COM7L7C is %$t(oriGe" to $se %n AUTOMAT7/ 7L7CTION SLST7M ,or t(e #rocess o, votin)5 co$ntin) votes5 %n" c%nv%ssin) o, t(e res$lts. (?A D=/B, ection B) -.. :ower to carr% out continuin$ s%stematic campai$n. (B: DD-, ection <.(()) -/. :ower to enlist non-partisan $roup or or$ani>ations o# citi>ens (B: DD-, ection <.(4)) 14. Po;er to iss$e se%rc( ;%rr%nts durin$ election periods. (B: DD-, ection <9(-)) -<. :ower to stop an% election activit%, or con#iscate tear down, and stop an% unlaw#ul, libelous, misleadin$ or #alse election propa$anda, a#ter due notice and hearin$. (B: DD-, ection <9(.)) 16. Po;er to in0$ire into t(e ,in%nci%l recor"s o# candidates and an% or$ani>ation or $roup o# persons a#ter due notice and hearin$. (B: DD-, ection <9(/)) 17. Po;er to "ecl%re ,%il$re o, election %n" c%ll ,or s#eci%l elections (?A 9-BB, ection =) 1". /ivi"e % #rovince ;it( onl* one le)isl%tive "istrict into t;o "istricts ,or #$r#oses o, t(e election o, t(e mem-ers o, t(e S%n))$ni%n) F%-%t%%n. D?A 9-BB, ection /(b)) Po;er to /ecl%re 4%il$re o, 7lections The C said that under B: DD-, there are onl% three instances where a #ailure o# elections ma% been declare, namel%, -. The election in an% pollin$ place has not bee held on the date #i'ed on account o# #orce ma(eure, violence, terrorism, #raud or other analo$ous causes5 .. The election in an% pollin$ place had been suspended be#ore the hour #i'ed b% law #or the closin$ o# the votin$ on account o# #orce ma(eure, violence terrorism, #raud or other analo$ous cases5 or /. A#ter the votin$ and durin$ the preparation and transmission o# the election returns or in the custod% or canvass thereo# such election results in a #ailure to elect on account o# #orce ma(eure, violence, terrorism, #raud or other analo$ous causes. (ison v. C2)!3!C, -EEE5 :asandalan v. C2)!3!C, .CC.) Contents o, Petition. The C held that #or C2)!3!C to conduct a hearin$ on a veri#ied petition to declare a #ailure o# election, it is necessar% that the petition must show on its #ace two conditions, -. That no votin$ has ta4en place in the precinct on the date #i'ed b% law or, even i# there was votin$, the election nevertheless results in a #ailure to elect5 and 2. The votes not cast would a##ect the results o# the election. ()itmu$ v. C2)!3!C, ./C C?A <=) Thus, in this case, #or #ailure o# the petition to show the e'istence o# the #irst condition, the C2)!3!C did not commit $rave abuse o# discretion when it dismissed the petition even without a hearin$. ?. 7>%m#les o, M%tters Not 8it(in t(e Po;ers.@$ris"iction o, COM7L7C 1. C2)!3!C has no power to decide *uestions 7involvin$ the ri$ht to vote.8 (ection .(/) ection .(B) places cases involvin$ 7inclusion or e'clusion o# voters8 under the (urisdiction o# courts. D= 2. The $eneral rule is that the proclamation o# a con$ressional candidate divests C2)!3!C o# (urisdiction in #avor o# the proper !lectoral Tribunal R unless the proclamation was invalid. D< 3. In the case o# municipal o##ices5 even i# the case be$an with the C2)!3!C be#ore proclamation be#ore the controvers% is resolved, it ceases to be a pre-proclamation controvers% and becomes a contest co$ni>able b% the Court o# Airst Instance. DB "4 Bernas Commentar*, p 10$1 (2003 ed). "$ Planas v Comelec, G.R. No. 167594, March 10, 2006. "6 Bernas Primer at 3#6 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence .< FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
4. The C2)!3!C has no power to ma4e a reapportionment o# le$islative districts. ()onte(o v. C2)!3!C) $. The C2)!3!C cannot prohibit radio and T; commentators and newspaper columnists #rom commentin$ on the issues involved in the #orthcomin$ plebiscite #or the rati#ication o# the or$anic law establishin$ the CA?. (::I v. C2)!3!C) B. The C2)!3!C cannot deprive the ?TC o# its competence to order e'ecution o# (ud$ment pendin$ appeal, because the mere #ilin$ o# appeal does not divest the trial court o# its (urisdiction over a case and the authorit% to resolve pendin$ incidents. (!ddin$ v. C2)!3!C, .=B C?A <C.) <. Po;ers o, C(%irm%n 4%cts' ?espondent as Chairman o# the C2)!3!C removed petitioner as Director o# the !ducation and In#ormation Department and reassi$ned her to the 3aw Department. :etitioner ar$ued that onl% the C2)!3!C actin$ as a colle$ial bod% can authori>e her reassi$nment. <el"' +nder ection 9(=), chapter ., ubtitle C, Boo4 ; o# the ?evised Administrative Code, the C"aiman COMELEC is %ested 2it" po2e to ma8e tempoa$ assignments' otate and tansfe pesonnel in a!!odan!e 2it" t"e po%ision of t"e Ci%il Se%i!e La2. In the e'ercise o# this power, the Chairman is not re*uired b% law to secure the approval o# the C2)!3!C en banc. ()atiba$ v. Benipa%o) D9 I. 7n +%nc. T;o /ivisions The Commission on !lections ma% sit en banc or in two divisions, and shall promul$ate its rules o# procedure in order to e'pedite disposition o# election cases, includin$ pre- proclamation controversies. All s$c( election c%ses s(%ll -e (e%r" %n" "eci"e" in "ivision, provided that motions #or reconsideration o# decisions shall be decided b% the Commission en banc. (Article IX-C, ection /) The last sentence o# ection / prescribes two important rules, (. Motions fo e!onsideation ae de!ided en #an!. But a decision en banc is re*uired onl% when the sub(ect #or reconsideration is a 7decision,8 that is, a resolution o# substantive issues. Thus, reconsideration o# a dismissal based on lac4 o# interest ma% be heard in division. (ala>ar v. C2)!3!C, -EEC) <o;ever, while a motion to reconsider an interlocutor% order o# a division should be resolved b% the division which issued the interlocutor% order, it ma% be re#erred to the Comelec en banc i# all the members "7 5acinto 5imenez, Political a! Compendium, 3"2 (2006 ed.) o# the division a$ree. (Soriano et al v Comelec, &? -B==EB-<C<, April ., .CC9). I# a case which should $o to the Comelec en banc is erroneousl% #iled with a division, it ma% automaticall% be elevated to the Comelec en banc. This is not provided #or in the Comelec ?ules o# :rocedure, but such action is not prohibited. (#utilan v Comelec, &.?. -9-.=BD, April ., .CC9.) *. Ele!tion !ases ae de!ided in di%ision. The rule that all election cases, includin$ pre- proclamation cases, should #irst be heard and decided b% the C2)!3!C in division applies onl% when the C2)!3!C e'ercises its ad(udicator% or *uasi-(udicial #unctions, not when it e'ercises purel% administrative #unctions. ()unicipal Board o# Canvassers v. C2)!3!C, .CC/) The conduct o# a preliminar% investi$ation be#ore the #ilin$ o# an in#ormation in court does not involve the e'ercise o# ad(udicator% #unction. (Balindon$ v. C2)!3!C, .CC/) !lection cases must #irst be decided in division. @ence the Comelec en banc ma% not decide an election case still pendin$ be#ore a division. (#u=o4 v Comelec, &.?. -9CB9D, Iul% -9, .CCB.) C%ses ;(ic( m$st ,irst -e (e%r" %n" "eci"e" in "ivision' -. All election cases, includin$ pre-proclamation contests, ori$inall% co$ni>able b% the Commission in the e'ercise o# its powers under ection .(.) o# Article IX-C. .. :etition to cancel a certi#icate o# candidac% rests with the C2)!3!C in division, not he C2)!3!C en banc. (Bautista v. C2)!3!C, .CC/) /. Cases appealed #rom the ?TC or )TC. (Abad v. C2)!3!C, -EEE) =. :etition #or certiorari #rom a decision o# the ?TC (or )TC).(oller v. C2)!3!C, .CCC) C%ses -* 7n +%nc 1. )otions #or reconsideration o# 7decisions8. (ection /, Article IX-C) .. Cases that involve the e'ercise o# purel% administrative #unctions. C2)!3!C en banc ma% directl% assume (urisdiction over a petition to correct mani#est errors in the tabulation or tall%in$ o# results (Statement of 8otes) b% the Board o# canvassers.(Torres v. C2)!3!C) o tatement o# ;otes is merel% a tabulation per precinct o# the votes obtained b% the candidates as re#lected in the election returns. 0hat is involved is simple arithmetic. In ma4in$ the correction in the computation, the Board o# Canvassers acts in an administrative capacit% under the I sweat, I bleed, I soar Service, Sacrifice, Excellence .B FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
control and supervision o# the C2)!3!C. :ursuant to its constitutional #unction to decide *uestions a##ectin$ elections, the C2)!3!C en banc has authorit% to resolve an% *uestion pertainin$ to proceedin$s o# the Board o# Canvassers. ()astura v. C2)!3!C) The power o# the C2)!3!C to prosecute cases o# violation o# election laws involves the e'ercise o# administrative powers which ma% be e'ercised directl% b% the C2)!3!C en banc. (Ba%tan v. C2)!3!C, .CC/) &' Does the C2)!3!C en banc have (urisdiction to decide election cases1 A' "o. This power pertains to the divisions o# the Commission. An% decision b% the Commission en banc as re$ards election cases decided b% it in the #irst instance is null and void. (oller v. C2)!3!C, .CCC) &' 0hen is hearin$ b% division re*uired1 A' It is onl% in the e'ercise o# its ad(udicator% or *uasi- (udicial powers that the C2)!3!C is mandated to hear and decide cases #irst b% division and then, upon motion #or reconsideration, b% the C2)!3!C en banc. The conduct o# a preliminar% investi$ation be#ore the #ilin$ o# an in#ormation in court does not involve the e'ercise o# ad(udicator% #unction. (Ba%tan v. C2)!3!C, .CC/) &' )ust a motion #or reconsideration o# an order o# dismissal #or lac4 o# interest due to the #ailure o# petitioner or counsel to appear #or hearin$ be reviewed b% the C2)!3!C en banc or ma% it be considered b% a division1 A' It ma% be considered b% a division. 0hat the Constitution sa%s must be heard en banc are motions #or reconsideration o# 7decisions,8 that is resolutions o# substantive issues. The described dismissal was not a decision. (ala>ar v. C2)!3!C, -EEC) &' Is the rule on pre#erential disposition o# election cases su$$ested b% Article IX-A, ection 9 and the re*uirement in ection .<9 o# the 2mnibus !lection C2D! that the C2)!3!C shall decide all election cases brou$ht be#ore it within ninet% da%s #rom the date o# submission a hard and #irm rule1 A' "o. Considerin$ the tribunalHs manpower and lo$istic limitations, it is sensible to treat the procedural re*uirements on deadlines realisticall%. (Alvare> v. C2)!3!C, .CC-) <. P%rt* S*stem Section 6' A #ree and open part% s%stem shall be allowed to evolve accordin$ to the #ree choice o# the people, sub(ect to the provisions o# this Article. Section . "o votes cast in #avor o# a political part%, or$ani>ation, or coalition shall be valid, e'cept #or those re$istered under the part%-list s%stem as provided in this Constitution. ((elate tis to )rticle 81, Section 5 par.2 providing for 20> of te seats in te !ouse of (epresentatives being allocated to part%'list representatives) Section !' :artiesOre$istered under the part%-list s%stemOshall be entitled to appoint poll watchers in accordance with law. I. 3e#resent%tion :olitical parties, or or$ani>ations or coalitions re$istered under the part%-list s%stem, shall not be represented in the votersP re$istration boards, boards o# election inspectors, boards o# canvassers, or other similar bodies. @owever, the% shall be entitled to appoint poll watchers in accordance with law. (Article IX-C, ection D) @. 7lections 1. 7lection Perio" +nless otherwise #i'ed b% the Commission in special cases, the election period shall commence ninet% da%s be#ore the da% o# election and shall end thirt% da%s therea#ter. (Article IX-C, ection E) The election period is distin$uished #rom the campai$n period in that the latter cannot e'tend be%ond the election da%. DD 2. 70$%l Protection o, C%n"i"%tes Bona #ide candidates #or an% public o##ice shall be #ree #rom an% #orm o# harassment and discrimination. (Article IX-C, ection -C) &' Does ection -C $ive candidates immunit% #rom suit1 A' "o. DE &' ?ive e>%m#le o, "iscrimin%tion. A' +ne*ual treatment in the availment o# media #acilities. EC 3. 4$n"s. 4isc%l A$tonom* Aunds certi#ied b% the Commission as necessar% to de#ra% the e'penses #or holdin$ re$ular and special elections, plebiscites, initiatives, re#erenda, and recalls, shall be provided in the re$ular or special appropriations and, once approved, shall be released automaticall% upon certi#ication b% the Chairman o# the Commission. (Article IX-C, ection --) F. 3evie; o, /ecisions Article IXAA5 Section . ''' +nless otherwise provided b% this Constitution or b% law, %n* "ecision5 or"er5 or r$lin) o# each Commission ma% be brou$ht to the upreme Court on certiorari b% the a$$rieved part% within thirt% da%s #rom receipt o# a cop% thereo#. "" Cruz, Philippine Political a!, p. 31" (1##$ ed). "# Bernas Primer at 407 (2006 ed.) #0 Bernas Primer at 407 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence .9 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
S$#reme Co$rt. 2nl% decisions o# the C2)!3!C en banc ma% be brou$ht to the C on certiorari (as a special civil action under ?ule B<). 0hat is contemplated b% the term #inal or"ers5 r$lin)s %n" "ecisions o# C2)!3!C reviewable b% certiorari b% the C as provided b% law are those rendered in actions or proceedin$s be#ore the C2)!3!C and ta4en co$ni>ance o# b% the said bod% in the e'ercise o# its %":$"ic%tor* or 0$%siA:$"ici%l #o;ers 61 . (Ailipinas !n$ineerin$ and )achine hop v. Aerrer, -/< C?A .<) The certiorari (urisdiction o# the C does not re#er to purel% e'ecutive powers such as those which relate to the C2)!3!CHs appointin$ power. E. (Ambil v. C2)!3!C, .CCC) Tri%l Co$rts. Determinations made b% the C2)!3!C which are merel% administrative (not (udicial) in character, ma% be challen$ed in an ordinar% civil action be#ore trial courts. (Ailipinas !n$ineerin$ M )achine hop v. Aerrer) Thus, where what was assailed in the petition #or certiorari was the C2)!3!CHs choice o# appointee, which is a purel% administrative dut%, the case is co$ni>able b% the ?TC (or the CC as the case ma% be). IH. Commission on A$"it Composition of COA 3ualifi!ations of Commissiones of COA Appointment of Commissiones Po2es and Duties of COA -uisdi!tion ection -. (-) There shall be a Commission on Audit composed o# a Chairman and two Commissioners, who shall be natural-born citi>ens o# the :hilippines and, at the time o# their appointment, at least thirt%-#ive %ears o# a$e, Certi#ied :ublic Accountants with not less than ten %ears o# auditin$ e'perience, or members o# the :hilippine Bar who have been en$a$ed in the practice o# law #or at least ten %ears, and must not have been candidates #or an% elective position in the elections immediatel% precedin$ their appointment. At no time shall all )embers o# the Commission belon$ to the same pro#ession. A. Com#osition o, COA #1 Thus, a person whose certi#icate o# candidac% is re(ected or canceled b% the C2)!3!C on the $round, sa%, that he does not possess the re*uired *uali#ications, ma% elevate the matter on certiorari to the upreme Court. (Cruz, Philippine Political a!, p. 31# (1##$ ed). #2 @ence, *uestions arisin$ #rom the award o# a contract #or the construction o# votin$ booths can be brou$ht be#ore a trial court. Commission on Audit is composed o# a Chairman and two Commissioners. +. &$%li,ic%tions o, Commissioners 1. "atural-born citi>ens o# the :hilippines5 2. At the time o# their appointment, at least thirt%- #ive %ears o# a$e5 3. Certi#ied :ublic Accountants with not less than ten %ears o# auditin$ e'perience, or members o# the :hilippine Bar who have been en$a$ed in the practice o# law #or at least ten %ears5 4. )ust not have been candidates #or an% elective position in the elections immediatel% precedin$ their appointment. At no time shall all )embers o# the Commission belon$ to the same pro#ession. C. A##ointment o, Commissioners Section 1D2E The Chairman and the Commissioners shall be appointed b% the :resident with the consent o# the Commission on Appointments #or a term o# seven %ears without reappointment. 2# those #irst appointed, the Chairman shall hold o##ice #or seven %ears, one Commissioner #or #ive %ears, and the other Commissioner #or three %ears, without reappointment. Appointment to an% vacanc% shall be onl% #or the une'pired portion o# the term o# the predecessor. In no case shall an% )ember be appointed or desi$nated in a temporar% or actin$ capacit%. /. Po;ers %n" /$ties o, COA ection .. (-) The Commission on Audit shall have the power, authorit%, and dut% to e'amine, audit, and settle all accounts pertainin$ to the revenue and receipts o#, and e'penditures or uses o# #unds and propert%, owned or held in trust b%, or pertainin$ to, the &overnment, or an% o# its subdivisions, a$encies, or instrumentalities, includin$ $overnment-owned or controlled corporations with ori$inal charters, and on a post- audit basis, (a) constitutional bodies, commissions and o##ices that have been $ranted #iscal autonom% under this Constitution5 (b) autonomous state colle$es and universities5 (c) other $overnment-owned or controlled corporations and their subsidiaries5 and (d) such non-$overnmental entities receivin$ subsid% or e*uit%, directl% or indirectl%, #rom or throu$h the &overnment, which are re*uired b% law or the $rantin$ institution to submit to such audit as a condition o# subsid% or e*uit%. @owever, where the internal control s%stem o# the audited a$encies is inade*uate, the Commission ma% adopt such measures, includin$ temporar% or special pre-audit, as are necessar% and appropriate to correct the de#iciencies. It shall 4eep the $eneral accounts o# the &overnment and, #or such period as ma% be provided b% law, preserve the vouchers and other supportin$ papers pertainin$ thereto. I sweat, I bleed, I soar Service, Sacrifice, Excellence .D FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
(.) The Commission shall have e'clusive authorit%, sub(ect to the limitations in this Article, to de#ine the scope o# its audit and e'amination, establish the techni*ues and methods re*uired there#or, and promul$ate accountin$ and auditin$ rules and re$ulations, includin$ those #or the prevention and disallowance o# irre$ular, unnecessar%, e'cessive, e'trava$ant, or unconscionable e'penditures or uses o# $overnment #unds and properties. 1. ?ener%l 4$nction o, COA It is the #unction o# the C2A to e'amine the accurac% o# the records 4ept b% accountable o##icers and to determine whether e'penditures have been made in con#ormit% with law. It is there#ore throu$h the Commission on Audit that the people can veri#% whether their mone% has been properl% spent. E/ 2. Cl%ssi,ic%tion o, COAMs 4$nctions 64 -. To e'amine and audit all #orms o# $overnment revenues5 .. To e'amine and audit all #orms o# $overnment e'penditures5 /. To settle $overnment accounts5 =. To de#ine the scope o# techni*ues #or its own auditin$ procedures5 <. To promul$ate accountin$ and auditin$ rules 7includin$ those #or the prevention and disallowance o# irre$ular, unnecessar%, e'cessive, e'trava$ant, or unconscionable e'penditures,85 B. To decide administrative cases involvin$ e'penditures o# public #unds. To e>%mine %n" %$"it %ll ,orms o, )overnment e>#en"it$resJ PostA%$"it. The provision on post-audit is a reco$nition o# the #act that there are certain $overnment institutions which can be hampered in their operation b% pre-audit re*uirements. E< PostA%$"it A$t(orit*. The Commission has onl% post-audit authorit% over, -. Constitutional bodies, commissions and o##ices that have been $ranted #iscal autonom% under the Constitution5 .. Autonomous state colle$es and universities5 /. 2ther $overnment-owned controlled corporations and their subsidiaries5 =. uch non-$overnmental entities receivin$ subsid% or e*uit%, directl% or indirectl%, #rom or throu$h the $overnment, which are re*uired b% law or b% the $rantin$ institution to submit to such audit as a condition o# subsid% or e*uit%. #3 Bernas Primer at 40# (2006 ed.) #4 Bernas Primer at 40# (2006 ed.) #$ Bernas Commentar*, p 1066 (2003 ed). (0here the internal control s%stem o# audited a$encies is inade*uate, the Commission ma% adopt such measures, includin$ temporar% or special pre-audit, as are necessar% and appropriate to correct an% de#iciencies. )oreover, even in cases where pre-audit is allowed and pre-audit has alread% been per#ormed, the Commission is not estopped #rom ma4in$ a post-audit.) Priv%te A$"itors. :ublic corporations ma% emplo% private auditors. The clear and unmista4able conclusion #rom a readin$ o# the entire ection . is that the C2APs power to e'amine and audit is non-e'clusive. 2n the other hand, the C2APs authorit% to de#ine the scope o# its audit, promul$ate auditin$ rules and re$ulations, and disallow unnecessar% e'penditures is e'clusive. @owever, as the constitutionall% mandated auditor o# all $overnment a$encies, the C2APs #indin$s and conclusions necessaril% prevail over those o# private auditors, at least inso#ar as $overnment a$encies and o##icials are concerned. EB
Com#romise A)reement. The participation b% the Cit% in ne$otiations #or an amicable settlement o# a pendin$ liti$ation and its eventual e'ecution o# a compromise a$reement relative thereto, are indubitabl% within its authorit% and capacit% as a public corporation, and a compromise o# a civil suit in which it is involved as a part% is a per#ectl% le$itimate transaction, not onl% reco$ni>ed but even encoura$ed b% law. Thus, C2A committed $rave abuse o# discretion when it disallowed the Cit%Hs appropriation o# :/C,CCC made con#ormabl% with the compromise a$reement. (2smena v. C2A, ./D C?A =B/) S%l%r* Ho$c(er. The dut% to pass in audit a salar% voucher is discretionar%. (&on>ales v. :rovincial Board o# Iloilo, -. C?A 9--) The C held that the C2A has the power to overrule the ":C ("ational :ower Corporation) &eneral Counsel on post-audit measures relative to the determination o# whether an e'penditure o# a $overnment a$enc% is irre$ular, unnecessar%, e'trava$ant or unconscionable. &' )a% C2A in the e'ercise o# its auditin$ #unction, disallow the pa%ment o# bac4wa$es to emplo%ees ille$all% dismissed and sa% that the responsibilit% belon$s to the o##icial who dismissed them in bad #aith1 A' "o. C2A cannot sa% that the responsibilit% belon$s to the o##icial who made the ille$al dismissal when such o##icial has not been heard. Besides, pa%ment o# bac4wa$es is not an irre$ular, unnecessar%, e'cessive or e'trava$ant e'pense. (+% et. al. v. C2A, .CCC) #6 DBP v. COA, :.2. 3o. ""43$. 5anuar* 16, 2002 I sweat, I bleed, I soar Service, Sacrifice, Excellence .E FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
&' Does the power o# the Commission e'tend to non- accountable o##icers1 A' Jes. The Commission has authorit% not (ust over accountable o##icers but also over the o##icers who per#orm #unctions related to accountin$ such as veri#ication o# evaluations and computation o# #ees collectible, and the adoption o# internal rules o# control. (An !valuatorGComputer, #or instance is an indispensable part o# the process o# assessment and collection and comes within the scope o# the CommissionHs (urisdiction.) ()amaril v. Domin$o, -EE/) E9 To settle )overnment %cco$nts Po;er to 1settle %cco$nts2. This means the power to settle liquidated accounts, that is, those accounts which ma% be ad(usted simpl% b% an arithmetical process. It does not include the power to #i' the amount o# an unfi/ed or undetermined debt. (Compania &eneral de Tabacos v. Arench and +nison, -E-E) +nli*uidated claims present a (usticiable *uestion which is be%ond the powers o# the C2A to ad(udicate. ?ecover% based on quantum meruit involves a unli*uidated claim, because its settlement re*uires the application o# (ud$ment and discretion and cannot be ad(usted b% simple arithmetical process. (A.A. )anacop Construction Co., Inc. v. CA, .BB C?A ./<) ED To secure the release o# #unds #rom the Treasur%, a ;%rr%nt must be drawn b% the proper administrative o##icial and co$ntersi)ne" b% the Commission on Audit. EE This counter-si$nature ma% be compelled i# it can be shown that, -. The warrant has been le$all% drawn b% the o##icer authori>ed b% law to do so5 .. An appropriation to which the warrant ma% be applied e'ists b% virtue o# law5 /. An une'pected balance o# the amount appropriated is available. (Jncausti v. 0ri$ht, =9 :hil. DBB) The dut% to countersi$n the warrant in this case is merel% ministerial. The #ollowin$ have been held to be discretionar%, -. The dut% to pass audit a salar% voucher. (&on>ales v. :rovincial Auditor o# Iloilo, -. C?A 9--) .. The dut% o# the Commission on Audit to issue a certi#icate o# clearance to an% accountable o##icer see4in$ to leave the :hilippines. (3amb v. :hilipps, .. :hil. =9/) #7 Bernas Primer at 40# (2006 ed.) #" 5acinto 5imenez, Political a! Compendium, 3#4 (2006 ed.) ## Cruz, Philippine Political a!, p.324 /eci"e Mone* Cl%ims. The C2A can decide mone% claims based on law. But i# a mone% claim is denied b% a law, C2A has no authorit% to pass (ud$ment on the constitutionalit% o# the law. -CC 166! +%r &$estion DMone* Cl%imsE &' The Department o# "ational De#ense entered into a contract with ?aintree Corporation #or the suppl% o# ponchos to the AA:, stipulatin$ that, in the event o# breach, action ma% be #iled in the proper courts in )anila. uppose the AA: #ails to pa% #or delivered ponchos, where must ?aintreee Corporation #ile its claim1 0h%1 A' ?aintree Corporation must #ile its claim with the C2A. +nder Article IX-D, ection .(-), the C2A has the authorit% to settle all the accounts pertainin$ to e'penditure o# public #unds. ?aintree Corporation cannot #ile a case in court. The ?epublic o# the :hilippines did not waive its immunit% #rom suit when it entered into the contract with ?aintree Corporation #or the suppl% o# ponchos #or the use o# AA:. The contract involves the de#ense o# the :hilippines and there#ore relates to a soverei$n #unction. The provision #or venue in the contract does not constitute a waiver o# the tate immunit% #rom suit because the e'press waiver o# this immunit% can onl% be made b% a statute. A$t(orit* to "e,ine t(e sco#e o, its %$"it %n e>%min%tion5 est%-lis( tec(ni0$es %n" met(o"s re0$ire" t(ere,or. The C said that the power o# the Commission to de#ine the scope o# its audit and to promul$ate auditin$ rules and re$ulations and the power to disallow unnecessar% e'penditures is e'clusive. (?ut its po"er to e/amine and audit is not e/clusive) To #rom$l)%te %cco$ntin) %n" %$"itin) r$les 1incl$"in) t(ose ,or t(e #revention %n" "is%llo;%nce o, irre)$l%r5 $nnecess%r*5 e>cessive5 e>tr%v%)%nt5 or $nconscion%-le e>#en"it$res.2 The C held that the C2A has the power to overrule the ":C ("ational :ower Corporation) &eneral Counsel on post-audit measures relative to the determination o# whether an e'penditure o# a $overnment a$enc% is irre$ular, unnecessar%, e'trava$ant or unconscionable. It was held that C2A ma% stop the pa%ment o# the price stipulated in $overnment contracts when #ound to be irre$ular, e'trava$ant or 100 Parreo c. COA, :.2. 162224 5une 7, 2007 I sweat, I bleed, I soar Service, Sacrifice, Excellence /C FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
unconscionable. (ambeli v. :rovince o# Isabela, .-C C?A DC) C2A Circular "o 9<-B, prohibitin$ the use o# $overnment vehicles b% o##icials who are provided with transportation allowance was held to be a valid e'ercise o# its powers under ection ., Article IX-D o# the Constitution5 and the prohibition ma% be made to appl% to o##icials o# the ":C. &' The C2A reduced the amount that was passed in audit on the $round that the ori$inal amount was 7e'cessive and disadvanta$eous to the $overnment.8 Does the Commission have the authorit% to do so1 A' Jes, on the basis o# its authorit% in Article IX-D, ection .(-). This e'tends to the accounts o# all persons respectin$ #unds or properties received or held b% tem in an accountable capacit%. (Dincon$ v. Commissioner &uin$ona, -EDD) -C- &' )a% C2A in the e'ercise o# its auditin$ #unction, disallow the pa%ment o# bac4wa$es to emplo%ees ille$all% dismissed and sa% that the responsibilit% belon$s to the o##icial who dismissed them in bad #aith1 A' "o. C2A cannot sa% that the responsibilit% belon$s to the o##icial who made the ille$al dismissal when such o##icial has not been heard. Besides, pa%ment o# bac4wa$es is not an irre$ular, unnecessar%, e'cessive or e'trava$ant e'pense. (+% et. al. v. C2A, .CCC) Po;er to veto %##ro#ri%tions. There is now a view to the e##ect that the critical #unction o# the Commission on Audit under the reworded provision o# the Constitution authori>es it to veto appropriations. This can be done, so it is ar$ued, throu$h the power o# the Commission to re#use to 7e'amine, audit and settle8 an% account violatin$ its o"n re$ulations 7#or the prevention and disallowance o# irre$ular, unnecessar%, e'cessive, e'trava$ant or unconscionable e'penditures or uses o# $overnment #unds properties.8 -C. 7. @$ris"iction ection /. "o law shall be passed e'emptin$ an% entit% o# the &overnment or its subsidiaries in an% $uise whatever, or an% investment o# public #unds, #rom the (urisdiction o# the Commission on Audit. 8%ter /istricts S$-:ect to t(e @$ris"iction o, COA. The Court alread% ruled in several cases that a water district is a $overnment-owned and controlled corporation with a special charter since it is created pursuant to a special law, :D -ED. The C2A has the authorit% to investi$ate whether 101 Bernas Primer at 410 (2006 ed.) 102 Cruz, Philippine Political a!, p.32# directors, o##icials or emplo%ees o# &2CC receivin$ additional allowances and bonuses are entitled to such bene#its under applicable laws. Thus, water districts are sub(ect to the (urisdiction o# the C2A. (De Iesus v. C2A, .CC/) :A3 (:hil. Airlines) havin$ ceased to be a $overnment-owned or Rcontrolled corporation, is no lon$er under the audit (urisdiction o# the C2A. (:A3 v. C2A, .=< C?A /E) 2II1 +%r &$estion &' The :"B was then one o# the leadin$ $overnment Rowned ban4s and it was under the audit (urisdiction o# the C2A. A #ew %ears a$o, it was privati>ed. 0hat is the e##ect i# an%, o# the privati>ation o# :"B on the audit (urisdiction o# the C2A1 A' In accordance with the rulin$ in :al v. C2A, since :"B is no lon$er owned b% the $overnment the C2A no lon$er has (urisdiction to audit it as an institution. +nder Article IX-D, ection .(.), &2CCs and their subsidiaries are sub(ect to audit b% the C2A. @owever, in accordance with ection .(-), the C2A can audit the :"B with respect to its accounts because the $overnment still has e*uit% in it. A$"it o, Priv%te 7ntities 4%cts' :etitioners were end-users o# copra. :D .9B imposed a lev% on copra to be collected b% the end-users #rom the sellers o# the copra. The #und was to be used to subsidi>e the purchase o# copra to maintain the stabilit% o# the price. The C2A audited the petitioners and #ound that there was a de#icienc% in their collection o# the lev%. :etitioners ar$ued that the C2A had no authorit% to audit them as the% were not $overnment-owned or controlled corporation. <el"' The ar$ument has no merit. +nder the Constitution, the C2A has the power to audit non- $overnmental entities receivin$ subsid% #rom or throu$h the $overnment. (Blue Bar Coconut :hilippines v. Tantuico, -B/ C?A 9-B) -C/ In ?agatsing v. Committee on :rivati>ation, the Court interpretin$ C3) Circular .o. +*'2*6 tat tere is failure of bidding "en (a) tere is onl% one offeror, or (b) "en all te offers are non'compl%ing or unacceptable, declared that the C2A circular does not spea4 o# accepted bids, but o# o##erors, without distinction as to whether the% are dis*uali#ied or *uali#ied. Thus, since in the biddin$ o# the =CS bloc4 o# :etron shares, there were three o##erors, namel% audi Aramco, :etronas and 0estmontTalthou$h the latter were dis*uali#iedTthen there was no #ailure o# biddin$. 4. 3e#ort 103 5acinto 5imenez, Political a! Compendium, 3#1 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence /- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
ection =. The Commission shall submit to the :resident and the Con$ress, within the time #i'ed b% law, an annual report coverin$ the #inancial condition and operation o# the &overnment, its subdivisions, a$encies, and instrumentalities, includin$ $overnment-owned or controlled corporations, and non-$overnmental entities sub(ect to its audit, and recommend measures necessar% to improve their e##ectiveness and e##icienc%. It shall submit such other reports as ma% be re*uired b% law. P$r#ose o, 3e#ort. Throu$h the report re*uired b% this provision, the :resident and the Con$ress shall be in#ormed o# the #inancial status o# the $overnment and the manner in which revenues have been collected, appropriation laws have been implemented, and e'penditures or uses o# public #unds and properties underta4en. In#ormation contained in this report and the recommendations made b% the Commission on Audit will be use#ul in enablin$ the $overnment to improve its #inancial operations. -C= The authorit% o# the Commission to recommend measure to improve the e##icienc% and e##ectiveness o# the $overnment empowers it 7to conduct the so-called per#ormance audit which consist o# the anal%tical and critical review, assessment and evaluation o# the activities, mana$ement and #iscal operations o# the &overnment in order to reduce operational costs and losses and promote $reater econom% and administrative e##icienc% in public e'penditures. This is a modern concept o# auditin$ that $oes be%ond the mere e'amination o# receipts and e'penditures as it e'tends to the evaluation o# the application o# #unds, to the anal%sis o# e'penditures as well as cost bene#it studies.8 -C< <. 3evie; o, CommissionMs /ecisions The review power o# the C over decision o# the Commission is the same as that over the C2)!3!C- the limited-certiorari power under ?ule B<. The (urisdiction o# the C over the Commission is on mone% matters and not over decisions on personnel movements. "either is it the tas4 o# the C to review a Commission opinion on ta' liabilit%. -CB 104 Cruz, Philippine Political a!, p.330 10$ Cruz, Philippine Political a!, p.331 >uotin( &onte?o, @he 3e! Constitution, 20". 106 Bernas Commentar*, p "3 (2003 ed). I sweat, I bleed, I soar Service, Sacrifice, Excellence /. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Article X LOCAL ?OH73NM7NT I. LOCAL &OVERNMENTS (ections -, -C- -=) II. LOCAL AUTONOM; (ection .) III. LOCAL &OVERNMENT CODE (ection /) IV. &ENERAL PO<ERS AND ATTRI,UTES (ection <,B,9) V. MUNICIPAL LIA,ILIT; VI. LOCAL O//ICIALS (ection D,E) VII. AUTONOMOUS RE&IONS VIII.INTER5&OVERNMENTAL RELATIONS I=. LOCAL INITIATIVE AND RE/ERENDUM ?7N73AL P3OHISIONS I. Loc%l ?overnments Lo!al &o%enment Unit 3uota#le 3uotes on Natue of Lo!al &o%enments Teitoial and Politi!al Su#di%isions T"e ,aanga$ T"e Muni!ipalit$ T"e Cit$ T"e Po%in!e Leagues of L&Us0Offi!ials Section 1. The territorial and political subdivisions o# the ?epublic o# the :hilippines are the provinces, cities, municipalities, and baran$a%s. There shall be autonomous re$ions in )uslim )indanao and the Cordilleras as hereina#ter provided. A. 8(%t is % Loc%l ?overnment Unit= A local $overnment unit is a #olitic%l s$-"ivision o, t(e St%te which is !onstituted #$ la2 and possessed o# substantial control over its own a##airs. In a unitar% s%stem o# $overnment, it is an intra-soverei$n subdivision o# one soverei$n nation, not intended to be an imperium in imperio Kempire within an empire)L. (Alvare> v. &uin$ona &? --D/C/, -EEB) 0hen the Dra#ters o# the -ED9 Constitution enunciated the polic% o# ensurin$ the autonom% o# local $overnments, it was never their intention to create an imperium in imperio and install an intra- soverei$n political subdivision independent o# a sin$le soverei$n state. (Batan$as CAT; v. Court o# Appeals, &? "o. -/DD-C, .CC=) &' 0hat is the present #orm o# local $overnment1 A' The present #orm consists o# an e'ecutive distinct #rom the le$islative bod%. -C9 107 Bernas Primer at 416 (2006 ed.) +. &$ot%-le &$otes on N%t$re o, Loc%l ?overnments 1. 7O$rs is still % $nit%r* ,orm o, )overnment5 not % ,e"er%l st%te. Bein$ so, an% #orm o# autonom% $ranted to local $overnments will necessaril% be limited and con#ined within the e'tent allowed b% the central authorit%.8 (;ina v. @ano, <( $2*0*3, 0+.30.200$) 2. 7A Loc%l ?overnment Unit is % #olitic%l s$-"ivision o, t(e St%te which is constituted b% law and possessed o# substantial control over its own a##airs. ?emainin$ to be an intra soverei$n subdivision o# one soverei$n nation, but not intended, however, to be an imperium in imperio, the local $overnment unit is autonomous in the sense that it is $iven more powers, authorit%, responsibilities and resources. :ower which used to be hi$hl% centrali>ed in )anila, is thereb% deconcentrated, enablin$ especiall% the peripheral local $overnment units to develop not onl% at their own pace and discretion but also with their own resources and assets.8 ()lvare4 v. <uingona, <( $$+303, 0$.3$.*6) 3. An L??U is cre%te" -* l%; %n" %ll its #o;ers %n" ri)(ts %re so$rce" t(ere,rom. It has there#ore no power to amend or act be%ond the authorit% $iven and the limitations imposed on it b% law.8 (@aranaque v. 8# (ealt% Corp., <( $2,+20, 0,.20.*+) C. 7n$mer%te t(e Territori%l %n" Politic%l S$-"ivisions in Section 1' The territorial and political subdivisions o# the ?epublic o# the :hilippines are the, -. :rovinces .. Cities /. )unicipalities =. Baran$a%s There shall be autonomous re$ions in )uslim )indanao and Cordilleras as provided in the Constitution. (ection-) Si)ni,ic%nce o, Section 1. The constitutional si$ni#icance o# ection - is that provinces, cities and municipalities and baranga%s have been #i'ed as the standard territorial and political subdivisions o# the :hilippines. T(is m%nner o, s$-"ivi"in) t(e P(ili##ines c%nnot )o o$t o, e>istence e>ce#t -* % constit$tion%l %men"ment. -CD &' !2 ..C dated Iul% -<, -ED9 creates the Cordillera Administrative ?e$ion (CA?) creatin$ a temporar% administrative a$enc% pendin$ the creation o# Cordillera Autonomous ?e$ion. Does !2 ... thereb% create a territorial and political subdivision1 A' "o. 0hat is created is not a public corporation but an e'ecutive a$enc% under the control o# the national $overnment. It is more similar to the re$ional development councils which the :resident ma% create 10" Bernas Primer at 413 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence // FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
under Article X, ection -=. (Cordillera Board Coalition v. C2A, -EEC) /. M$nici#%l Cor#or%tions 1. M$nici#%l Cor#or%tion A bod% politic and corporate !onstituted #$ t"e in!opoation o# the inhabitants #or the purpose o# local $overnment. -CE 2. 7lements o, % M$nici#%l Cor#or%tion 11I 1. Le)%l cre%tion or incor#or%tion- the law creatin$ or authori>in$ the creation or incorporation o# a municipal corporation. 2. Cor#or%te n%me- The name b% which the corporation shall be 4nown. The an$$unian$ :anlalawi$an ma%, in consultation with the :hilippine @istorical Institute, chan$e the name o# the component cities and municipalities, upon the recommendation o# the san$$unian concerned5 provided that the same shall be e##ective onl% upon the rati#ication in a plebiscite conducted #or the purpose in the political unit directl% a##ected. (?A 9-BC, ection -/) 3. In(%-it%nts- The people residin$ in the territor% o# the corporation. 4. Territor*A The land mass where the inhabitants reside, to$ether with the internal and e'ternal waters, and the air space above the land waters. 3. /$%l N%t$re %n" 4$nctions !ver% local $overnment unit created or or$ani>ed (under the 3ocal &overnment Code) is a bod% politic and corporate endowed with powers to be e'ercised b% it in con#ormit% with law. As such, it shall e'ercise powers as a political subdivision o# the "ational &overnment and as a corporate entit% representin$ the inhabitants o# its territor%. (?A 9-BC, ection -<) Accordin$l% it has dual #unctions namel%, 1. P$-lic or )overnment%lA It acts as an a$ent o# the tate #or the $overnment o# the territor% and the inhabitants. 2. Priv%te or #ro#riet%r*- It acts as an a$ent o# the communit% in the administration o# local a##airs. As such, it acts as a separate entit%, #or its own purposes, and not as a subdivision o# the tate (Bara 3idasan v. Comelec, .- C?A =EB) 7. Cre%tion. /issol$tion o, M$nici#%l Cor#or%tions 1. A$t(orit* to Cre%te 10# 0ntonio 3achura, -utline on Political a!, $$3 (2006) 110 0ntonio 3achura, -utline on Political a!, $$3 (2006) A local $overnment unit ma% be created, divided, mer$ed, abolished, or its boundaries substantiall% altered either b% law enacted b% Con$ress in the case o# a province, cit%, municipalit% or an% other political subdivision, or b% ordinance passed b% the san$$unian$ panlalawi$an or sa$$unian$ panlun$sod concerned in the case o# a baran$a% located within its territorial (urisdiction, sub(ect to such limitations and re*uirements prescribed in the 3ocal &overnment Code (?A 9-BC, ection B) 2. 3e0$isites.Limit%tions on Cre%tion or Conversion Ati!le =' Se!tion (+9 "o province, cit%, municipalit% or an% baran$a% ma% be created, divided, mer$ed, abolished, or is its boundar% substantiall% altered, e'cept in accordance with the criteria established in the local $overnment code and sub(ect to approval b% a ma(orit% o# the votes cast in a PL7+ISCIT7 in the political units directl% a##ected. RA >(?+' Se!tion (+9 "o creation, division or mer$er, abolition or substantial alteration o# boundaries o# local $overnment units shall ta4e e##ect unless approved b% a ma(orit% o# the votes cast in a plebiscite called #or the purpose in the political unit or units directl% a##ected. aid plebiscite shall be conducted b% the Comelec within -.C da%s #rom the date o# e##ectivit% o# the law or ordinance e##ectin$ such action, unless said law or ordinance #i'es another date. It was held that a plebiscite #or creatin$ a new province should include the participation o# the residents o# the mother province in order to con#orm to the constitutional re*uirement. (Tan v. Comelec, -=. C?A 9.95 :adilla v. Comelec, .-= C?A 9/<) In other words, all political units a##ected should participate in the plebiscite. I# what is involved is a baran$a%, the plebiscite should be municipalit% or cit%-wide5 i# a municipalit% or component cit%, province wide. I# a portion o# province is to be carved out and made into another province, the plebiscite should include the mother province. (Tan v. C2)!3!C, -EDB) 3A 16I5 Section ' Based on veri#iable indicators o# viabilit% and pro(ected capacit% to provide services, to wit, 1. IncomeA Income must be su##icient, based on acceptable standards, to provide #or all essential $overnment #acilities and services and special #unctions commensurate with the si>e o# population, as e'pected o# the local $overnment unit concerned. Avera$e annual income #or the last two consecutive %ears based on -EE- constant prices should be at least, Muni!ipalit$9 ..< ) Cit$9 -CC) (Jear .CCC constant prices, amended b% ?A ECCE) @ig"l$ u#ani6ed !it$9 <C) Po%in!e9 .C) I sweat, I bleed, I soar Service, Sacrifice, Excellence /= FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
It was held that the Internal ?evenue Allotments (I?As) should be included in the computation o# the avera$e annual income o# the municipalit% (#or purposes o# determinin$ whether the municipalit% ma% be validl% converted into a cit%), but under ?A ECCE, it is speci#icall% provided that #or conversion to cities, the municipalit%Hs income should not include the I?A. (Alvare> v. &uin$ona, .<. C?A BE<) 2. Po#$l%tionA it shall be determined as the total number o# inhabitants within the territorial (urisdiction o# the local $overnment unit concerned. 3. L%n" Are% - It must be conti$uous, unless it comprises two or more islands or is separated b% a local $overnment unit independent o# the others5 properl% identi#ied b% metes and bounds with technical descriptions and su##icient to provide #or such basic services and #acilities to meet the re*uirements o# its populace. Income Po#$l%tion L%n" Are% Baran$a% .,CCC inhabitants (e'cept in )etro )anila and other metropolitan political subdivisions or in hi$hl% urbani>ed cities where the re*uirement is <,CCC inhabitants) )unicipalit % ..<) .<,CCC <Cs*4m Cit% -CC) -<C,CCC -CCs*4m @i$hl% +rbani>ed Cit% <C) .CC,CCC :rovince .C) .<C,CCC .,CCCs* h4m Compliance with the #ore$oin$ indicators shall be attested to b% the Department o# Ainance, the "2 and the 3ands )ana$ement Bureau o# the D!"?. The C said that the re*uirement that the territor% o# newl%-created local $overnment units be identi#ied b% metes and bounds is intended to provide the means b% which the area o# the local $overnment unit ma% be reasonabl% ascertained, i.e., as a toll in the establishment o# the local $overnment unit. As lon$ as the territorial (urisdiction o# the newl% created cit% ma% be reasonabl% ascertainedTb% re#errin$ to common boundaries with nei$hborin$ municipalitiesTthen the le$islative intent has been su##icientl% served. ()ariano v. Comelec, .=. C?A .--) K"ote, ?A 9D<=, which converted )a4ati into a cit%, did not de#ine the boundaries o# the new cit% b% metes and bounds, because o# a territorial dispute between )a4ati and Ta$ui$, which was best le#t #or the courts to decideL Appl%in$ Article X, ection -C the upreme Court, in the case o# Le%)$e o, Cities o, t(e P(ili##ines DLCPE5 et %l. vs. Commission on 7lections5 et %l. D?.3. No. 166515 ?.3. No. 1466 N ?.3. No. 1!I56J 24 A$)$st 2I1IE, held that the creation o# loc%l )overnment $nits m$st ,ollo; t(e criteri% est%-lis(e" in t(e Loc%l ?overnment Co"e %n" not in %n* ot(er l%;. 3. +e)innin) o, Cor#or%te 7>istence +pon the election and *uali#ication o# its chie# e'ecutive and a ma(orit% o# the members o# its san$$unian, unless some other time is #i'ed there#or b% the law or ordinance creatin$ it. (?A 9-BC, ection -=) 4. /ivision %n" Mer)erJ A-olition o, L?Us /ivision %n" mer)er shall compl% with same re*uirements, provided that such division shall not reduce the income, population or land area o# the local $overnment unit or units concerned to less than the minimum re*uirements prescribed5 provided #urther that the income classi#ication o# the ori$inal local $overnment unit or units shall not #all below its current income classi#ication prior to the division. (?A 9-BC, ection D) A-olition. A local $overnment unit ma% be abolished when its income, population or land area has been irreversibl% reduced to less than the minimum standards prescribed #or its creation, as certi#ied b% the national a$encies mentioned. The law or ordinance abolishin$ a local $overnment unit shall speci#% the province, cit%, municipalit% or baran$a% with which the local $overnment unit sou$ht to be abolished will be incorporated or mer$ed. (?A 9-BC, ection E) 5. /e 4%cto M$nici#%l Cor#or%tions 3e0$isites' -. ;alid law authori>in$ incorporation .. Attempt in $ood #aith to or$ani>e under it /. Colorable compliance with the law. =. Assumption o# corporate powers The C declared as unconstitutional ection BD o# the ?evised Administrative Code which authori>ed the :resident to create municipalities throu$h !'ecutive 2rder. 0ith this declaration, municipalities created b% !'ecutive 2rder could not claim to be de facto municipal corporations because there was no valid law authori>in$ incorporation. (:elae> v. Auditor &eneral, -< C?A <BE) 6. Att%c9 A)%inst Inv%li"it* o, Incor#or%tion "o collateral attac4 shall lie5 and in*uir% into the le$al e'istence o# a municipal corporation is reserved to the tate in a proceedin$ #or *uo warranto or other direct proceedin$. ()alaban$ v. Benito, .9 C?A <//) But this rule applies onl% I sweat, I bleed, I soar Service, Sacrifice, Excellence /< FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
when the municipal corporation is at least a de #acto municipal corporation. @owever, where the challen$e was made nearl% /C %ears a#ter the e'ecutive order5 creatin$ the municipalit% was issued, or where the municipalit% has been in e'istence #or all o# -B %ears be#ore the rulin$ in @elae4 v. )uditor <eneral was promul$ated and various $overnmental acts throu$hout the %ears indicate the tateHs reco$nition and ac4nowled$ment o# the e'istence o# the municipal corporation, the municipal corporation should be considered as a re$ular de 0ure municipalit%. 2II4 +%r &$estion' &')ADAN2 is a municipalit% composed o# DC baran$a%s, /C west o# )ada4o ?iver and <C east thereo#. The /C western baran$a%s, #eelin$ le#t out o# economic initiatives, wish to constitute themselves into a new and separate town to be called )asi$la. A law is passed creatin$ )asi$la and a plebiscite is made in #avor o# the law. B. uppose that one %ear a#ter )asi$la was constituted as a municipalit%, the law creatin$ it is voided because o# de#ects. 0ould that invalidate the acts o# the municipalit% andGor its municipal o##icers1 !'plain brie#l%. S$))este" Ans;er, Althou$h the municipalit% cannot be considered as a de #acto corporation, because there is no valid law under which it was created, the acts o# the municipalit% and o# its o##icers will not be invalidated, because the e'istence o# the law creatin$ it is an operative #act be#ore it was declared unconstitutional. @ence, the previous acts o# the municipalit% and its o##icers should be $iven e##ect as a matter o# #airness and (ustice. ()unicipalit% o#)alaban$ v. Benito, .9 C?A <// K-EBEL 4. T(e +%r%n)%* As the basic political unit, the baran$a% serves as the primar% plannin$ and implementin$ unit o# $overnmental policies, plans, pro$rams, pro(ects and activities in the communit%, as a #orum wherein the collective views o# the people ma% be e'pressed , cr%stalli>ed and considered, and where disputes ma% be amicabl% settled. (?A 9-BC, ection /D=) ?. T(e M$nici#%lit* The municipalit%, consistin$ o# a $roup o# barana%s, serves primaril% as a $eneral purpose $overnment #or the coordination o# and deliver% o# basic, re$ular and direct services and e##ective $overnance o# the inhabitants within its (urisdiction. (?A 9-BC, ection ==C) ?A 9-BC ections ==C-==9 <. T(e Cit* The cit%, composed o# more urbani>ed and developed baran$a%s, serves as a $eneral- purpose $overnment #or the coordination and deliver% o# basic, re$ular and direct services and e##ective $overnance o# the inhabitants within its territorial (urisdiction. (?A 9-BC, ection ==D) ?A 9-BC ections ==D-.<D Section 12. Cities that are hi$hl% urbani>ed, as determined b% law, and component cities whose charters prohibit their voters #rom votin$ #or provincial elective o##icials, shall be independent o# the province. The voters o# component cities within a province, whose charters contain no such prohibition, shall not be deprived o# their ri$ht to vote #or elective provincial o##icials. &' )a% a resident o# 7component cities whose charter prohibit their voters #rom votin$ #or provincial elective o##icials8 run #or a provincial elective o##ice1 A' "o. ection -. sa%s, these are independent o# the province. This independence includes the incapacit% o# its residents to run #or provincial o##ice. (Abella v. C2)!3!C, -EE-) I. T(e Province The province composed o# a cluster o# municipalities and component cities, and as a political and corporate unit o# $overnment, serves as a d%namic mechanism #or developmental processes and e##ective $overnance o# local $overnment units within its territorial (urisdiction. (?A 9-BC, ection =<E) (ee ?A 9-BC ections =<E-=BD) @. A$tonomo$s re)ions in M$slim Min"%n%o %n" in Cor"iller%s (This will be discussed under ection -<) ()s of tis "riting, onl% one autonomous region, tat of te #uslim #indanao, as been establised.) F. S#eci%l Metro#olit%n Politic%l S$-"ivisions Section 11. The Con$ress ma%, b% law, create special metropolitan political subdivisions, sub(ect to a plebiscite as set #orth in ection -C hereo#. The component cities and municipalities shall retain their basic autonom% and shall be entitled to their own local e'ecutive and le$islative assemblies. The (urisdiction o# the metropolitan authorit% that will thereb% be created shall be limited to basic services re*uirin$ coordination. :ursuant to Article X, ection --, Con$ress ma%, b% law, create special metropolitan political subdivisions sub(ect to a plebiscite set #orth in ection .C, but the component cities and municipalities shall retain their basic autonom% and shall be entitled to their own local e'ecutives and le$islative assemblies. The (urisdiction o# the metropolitan authorit% that will thereb% created shall be limited to basic services re*uirin$ coordination. I sweat, I bleed, I soar Service, Sacrifice, Excellence /B FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
NOT7' As earlier decided in the Belair case, the ))DA is NOT the metropolitan political unit contemplated in ection --. ?ather it is an administrative a$enc% o# the $overnment and as such it does not possess police power. It ma% e'rcise onl% such powers as are $iven to it b% law. @ence, where there is a tra##ic law or re$ulation validl% enacted b% the le$islature or those a$encies to whom le$islative powers have been dele$ated (the Cit% o# )anila in this case) empowerin$ it to con#iscate suspend licenses o# errin$ drivers, it ma% do per#orm such acts. 0ithout such law, however, the ))DA has no power. --- L. Le%)$es o, L?Us.O,,ici%ls (ee ?A 9-BC ections =E--=E<5 =EB-=ED) Section 13. 3ocal $overnment units ma% $roup themselves, consolidate or coordinate their e##orts, services, and resources #or purposes commonl% bene#icial to them in accordance with law. &' Does the $roupin$ contemplated in ection -/ create a new (uridical entit%1 A' "o. --. &' )a% local $overnment units create these $roupin$s even without prior enablin$ law1 A' Jes. Li)% n) m)% +%r%n)%*A 2r$ani>ation o# all baran$a% #or the primar% purpose o# determinin$ the representation o# the 3i$a in the san$$unians, and #or ventilatin$, articulatin$ and cr%stalli>in$ issues a##ectin$ baran$a% $overnment administration and securin$, throu$h proper and le$al means, solutions thereto. 2II3 +%r &$estion &' Can the 3i$a n$ m$a Baran$a% e'ercise le$islative powers1 +&&!T!D A"0!?, The 3i$a n$ )$a Baran$a% cannot e'ercise le$islative powers. As stated in Bito-2non v. Aernande>. /<C C?A 9/. K.CC-L, it is not a local $overnment unit and its primar% purpose is to determine representation o# the m$a in the san$$unians5 to ventilate, articulate, and cr%stalli>e issues a##ectin$ baran$a% $overnment administration5 and to secure solutions #or them throu$h proper and le$al means. Le%)$e o, M$nici#%lities. 2r$ani>ed #or the primar% purpose o# ventilatin$, articulatin$ and cr%stalli>in$ issues a##ectin$ municipal $overnment administration, and securin$, throu$h proper and le$al means, solutions thereto. M. 3e)ion%l /evelo#ment Co$ncils 111 MMDA v. Garin, :.2. 3o. 130230, 0pril 1$, 200$. 112 Bernas Primer at 432 (2006 ed.) Section 14. The :resident shall provide #or re$ional development councils or other similar bodies composed o# local $overnment o##icials, re$ional heads o# departments and other $overnment o##ices, and representatives #rom non- $overnmental or$ani>ations within the re$ions #or purposes o# administrative decentrali>ation to stren$then the autonom% o# the units therein and to accelerate the economic and social $rowth and development o# the units in the re$ion. P$r#ose. The purpose o# this provision is to #oster administrative decentrali>ation as a complement to political decentrali>ation. This is meant to allow bottom-to-top plannin$ rather than the reverse. --/ Po;er to Cre%te 3/Cs. It will be noted that the power to #orm these development councils is $iven to the :resident. @e does not need authori>ation #rom Con$ress. --= II. Loc%l A$tonom* Section 2. The territorial and political subdivisions shall en(o% local autonom%. A. Constit$tion%l Provisions Article II5 Section 25' The tate shall ensure the autonom% o# local $overnments. Article X5 Section 2' The territorial and political subdivisions shall en(o% local autonom%. ASee also Se!tions B'.'?' > and (+ of Ati!le =C +. Si)ni,ic%nce o, /ecl%r%tion o, Loc%l A$tonom* It is meant to #ree local $overnments #rom the well- ni$h absolute control b% the le$islature which characteri>ed local $overnment under the -E/< Constitution. Thus, althou$h a distinction is made between local $overnments in $eneral and autonomous re$ions, even those outside the autonomous re$ions are supposed to en(o% autonom%. --< /. 3$les on Loc%l A$tonom* 7In resumU, the Court is la%in$ down the #ollowin$ rules, -. 3ocal autonom%, under the Constitution, involves a mere decentrali>ation o# administration, not o# power, in which local o##icials remain accountable to the central $overnment in the manner the law ma% provide5 .. The new Constitution does not prescribe #ederalism5 /. The chan$e in constitutional lan$ua$e (with respect to the supervision clause) was meant 113 Bernas Commentar*, p 10#" (2003 ed). 114 Bernas Commentar*, p 10#" (2003 ed). 11$ Bernas Primer at 414 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence /9 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
but to den% le$islative control over local $overnments5 it did not e'empt the latter #rom le$islative re$ulations provided re$ulation is consistent with the #undamental premise o# autonom%5 =. ince local $overnments remain accountable to the national authorit%, the latter ma%, b% law, and in the manner set #orth therein, impose disciplinar% action a$ainst local o##icials5 $. OS$#ervisionO %n" Oinvesti)%tionO %re not inconsistent termsJ Oinvesti)%tionO "oes not si)ni,* OcontrolO (which the :resident does not have)5 '''8 (<an4on v. C), <( *3252, 0+.05.*$) 7. Me%nin) o, Loc%l A$tonom* VLoc%l %$tonom*5 $n"er t(e Constit$tion5 involves % mere DECENTRALIDATION O/ ADMINISTRATION 5 not o, #o;er .... (&an>on v. CA, -EE-) N%c($r% %n" A)r% Notes' The principle o# local autonom% under the -ED9 Constitution simpl% means "ecentr%liG%tion. (Basco v. :a$cor, -E9 C?A <.) --B (3ina v. :ano, .CC-) ,enas9 ;ocal autonom% means more tan 0ust decentrali4ation. ?ut te concept of autonom% is relative. )utonom% for local governments in general "ill be less tan for te autonomous regions. $$, @owever, even as we reco$ni>e that the Constitution $uarantees autonom% to local $overnment units, the e'ercise o# local autonom% remains sub(ect to the power o# control b% Con$ress, and the power o# $eneral supervision b% the :resident. (Iud$e Dadole v. C2A, .CC.) &' 0hat is the meanin$ o# local autonom% as it has emer$ed in recent decisions1 A' It means that local $overnments have certain powers $iven b% the Constitution which ma% not be curtailed b% the national $overnment, but that, outside o# these, local $overnments ma% not pass ordinances contrar% to statute. ()a$ta(as v. :r%ce :roperties, ./= C?A .<< (-EE=)). --D &' Do local $overnments have the power to $rant #ranchise to operate CAT; s%stem. A' "o. (Batan$as CAT; v. CA, .CC=) &' The law sa%s that the bud$et o##icer shall be appointed b% the Department head upon the recommendation o# the head o# local $overnment sub(ect to civil service rules and re$ulations. I# none o# those recommended b% the local $overnment head meets the re*uirements o# law, ma% the Department head appoint an%one he chooses1 116 0ntonio 3achura, -utline on Political a!, $$1 (2006) 117 Bernas Commentar*, p 1077 (2003 ed). 11" Bernas Primer at 41$ (2006 ed.) A' "o, he must return the recommendations o# the local $overnment head e'plainin$ wh% the recommendees are not *uali#ied and as4 #or a new recommendation. In other words, the recommendation o# the local $overnment head is a condition sine qua non o# the DepartmentHs appointin$ authorit%. This is the onl% wa% local autonom% can be $iven b% reco$nition the Constitution wants it to have. 0hen in doubt, #avor autonom%. (an Iuan v. CC, -EE-) &' )a% C2A reduce the allowance $iven to (ud$es b% local $overnments1 A' "o. ince the 3ocal &overnment Code authori>es local $overnments to $ive allowance to (ud$es and decide how much this should be, local autonom% prohibits the Commission on Audit #rom inter#erin$ with the authorit% o# the local a $overnment b% reducin$ what has been decided b% the local $overnment. (Dadole v. C2A, .CC.5 3e%nes v. C2A, .CC/) 4. 3e)ion%l A$tonom* 3e)ion%l %$tonom* is t(e "e)ree o, sel,A "etermin%tion e>ercise" -* t(e loc%l )overnment $nit visAPAvis t(e centr%l )overnment. (Disomangcop v. Secretar% of @ublic AorBs and !ig"a%s, <( $7*+7+, $$.25.2007) 73e)ion%l %$tonom* re,ers to t(e )r%ntin) o, -%sic intern%l )overnment #o;ers to t(e #eo#le o, % #%rtic$l%r %re% or re)ion ;it( le%st control %n" s$#ervision ,rom t(e centr%l )overnment. The ob(ective o# the autonom% s%stem is to permit determined $roups, with a common tradition and shared social-cultural characteristics, to develop #reel% their wa%s o# li#e and herita$e, e'ercise their ri$hts, and be in char$e o# their own business.8 (Disomangcop v. Secretar% of @ublic AorBs and !ig"a%s, <( $7*+7+, $$.25.2007) 3e)ion%l %$tonom* is %lso % me%ns to;%r"s solvin) e>istin) serio$s #e%ce %n" or"er #ro-lems %n" secessionist movements. :arentheticall%, autonom%, decentrali>ation and re$ionali>ation, in international law, have become politicall% acceptable answers to intractable problems o# nationalism, separatism, ethnic con#lict and threat o# secession. @owever, the creation o# autonomous re$ions does not si$ni#% the establishment o# a soverei$nt% distinct #rom that o# the ?epublic, as it can be installed onl% Wwithin the #ramewor4 o# this Constitution and the national soverei$nt% as well as territorial inte$rit% o# the ?epublic o# the :hilippines. (Disomangcop v. Secretar% of @ublic AorBs and !ig"a%s, <( $7*+7+, $$.25.2007) ?. 4isc%l A$tonom* 7Loc%l %$tonom* incl$"es -ot( %"ministr%tive %n" ,isc%l %$tonom*. ''' The Court declared I sweat, I bleed, I soar Service, Sacrifice, Excellence /D FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
therein that local #iscal autonom% includes the power o# the 3&+s to, inter alia, allocate their resources in accordance with their own priorities. ''' Aurther, a basic #eature o# local #iscal autonom% is the constitutionall% mandated automatic release o# the shares o# 3&+s in the national internal revenue.8 (@rovince of ?atangas v. (omulo, <( $52,,7, 05.2,.2007) 7+nder e'istin$ law, local $overnment units, in addition to havin$ administrative autonom% in the e'ercise o# their #unctions, en(o% #iscal autonom% as well. 4isc%l %$tonom* me%ns t(%t loc%l )overnments (%ve t(e #o;er to cre%te t(eir o;n so$rces o, reven$e in %""ition to t(eir e0$it%-le s(%re in t(e n%tion%l t%>es rele%se" -* t(e n%tion%l )overnment5 %s ;ell %s t(e #o;er to %lloc%te t(eir reso$rces in %ccor"%nce ;it( t(eir o;n #riorities. It e'tends to the preparation o# their bud$ets, and local o##icials in turn- have to wor4 within the constraints thereo#. The% are not #ormulated at the national level and imposed on local $overnments, whether the% are relevant to local needs and resources or not. @ence, the necessit% o# a balancin$ o# viewpoints and the harmoni>ation o# proposals #rom both local and national o##icials, who in an% case are partners in the attainment o# national $oals. 3ocal #iscal autonom% does not however rule out an% manner o# national $overnment intervention b% wa% o# supervision, in order to ensure that local pro$rams, #iscal and otherwise, are consistent with national $oals. i$ni#icantl%, the :resident, b% constitutional #iat, is the head o# the economic and plannin$ a$enc% o# the $overnment, primaril% responsible #or #ormulatin$ and implementin$ continuin$, coordinated and inte$rated social and economic policies, plans and pro$rams #or the entire countr%. @owever, under the Constitution, the #ormulation and the implementation o# such policies and pro$rams are sub(ect to Wconsultations with the appropriate public a$encies, various private sectors, and local $overnment units. The :resident cannot do so unilaterall%.8 (@imentel v. )guirre, <( $32*++, 0,.$*.2000) 7''' the limite" %n" restrictive n%t$re o, t(e t%> e>em#tion #rivile)es $n"er t(e Loc%l ?overnment Co"e is consistent ;it( t(e St%te #olic* to ens$re %$tonom* o, loc%l )overnments and the ob(ective o# the 3ocal &overnment Code to $rant $enuine and meanin$#ul autonom% to enable local $overnment units to attain their #ullest development as sel#- reliant communities and ma4e them e##ective partners in the attainment o# national $oals. The obvious intention o# the law is to broaden the ta' base o# local $overnment units to assure them o# substantial sources o# revenue.8 (@!1;(CC) v. D1;<, <( $730,6, 06.$0.2003) 70ith the added burden o# devolution, it is even more imperative #or )overnment entities to s(%re in t(e re0$irements o, "evelo#ment, #iscal or otherwise, b% pa%in$ ta'es or other char$es due #rom them.8 (.)@3C3( v. Cabanatuan Cit%, <( $7*$$0, 07.0*.2003) 7 ''' in ta'in$ $overnment-owned or controlled corporations, the St%te $ltim%tel* s$,,ers no loss.8 (@ilippine @orts )utorit% v. 1loilo Cit%, <( $0*,*$, 0,.$7.2003) 7The important le$al e##ect o# ection < (o# Article X o# the -ED9 Constitution) is that hence#orth, in inter#retin) st%t$tor* #rovisions on m$nici#%l ,isc%l #o;ers, doubts will have to be resolved in #avor o# municipal corporations.8 (San @ablo Cit% v. (e%es, <( $2,,0+, 03.25.**) ACO3/ v. Q%mor% (&? -==.<B, CB.CD..CC<) Constitution po%ides fo automati! elease of IRA. The &eneral Appropriation Act o# .CCC cannot place a portion o# the Internal ?evenue Allotment (:-CB) in an +npro$rammed Aund onl% to be released when a condition is met i.e. the ori$inal revenue tar$ets are reali>ed, since this would violate the automatic release provision under ection <, Article X o# the Constitution. As the Constitution la%s upon the e'ecutive the dut% to automaticall% release the (ust share o# local $overnments in the national ta'es, so it en(oins the le$islature not to pass laws that mi$ht prevent the e'ecutive #rom per#ormin$ this dut%. Both the e'ecutive and le$islative are barred #rom withholdin$ the release o# the I?A. I# the #ramers o# the Constitution intended to allow the enactment o# statutes ma4in$ the release o# I?A conditional instead o# automatic, then Article X, ection B o# the Constitution would have been worded di##erentl%. Con$ress has control onl% over the share which must be (ust, not over the manner b% which the share must be released which must be automatic since the phrase 7as determined b% law8 *uali#ied the share, not the release thereo#. Province o, +%t%n)%s v. 3om$lo (&? -<.99=, C<..9..CC=) &AA !annot amend L&C. Constitution po%ides fo automati! elease of IRA. The &eneral Appropriation Acts o# -EEE, .CCC and .CC- and resolutions o# the 2versi$ht Committee cannot amend the -EE- 3ocal &overnment Code inso#ar as the% provide #or the local $overnmentsH share in the Internal ?evenue Allotments as well as the time and manner o# distribution o# said share. A national bud$et cannot amend a substantive law, in this case the Code. The provisions in the &AA creatin$ the 3ocal &overnment pecial !*uali>ation Aund and authori>in$ the non- release o# the =CS to all local $overnments are inappropriate provisions. Aurther, the restrictions are violative o# #iscal autonom%. Aiscal autonom% means that local $overnments have the power to create their own sources o# revenue in addition to their e*uitable share in the national ta'es released b% the national $overnment, as well as the power to allocate I sweat, I bleed, I soar Service, Sacrifice, Excellence /E FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
their resources in accordance with their own priorities. It e'tends to the preparation o# their bud$ets, and local o##icials in turn have to wor4 within the constraints thereo#. The% are not #ormulated at the national level and imposed on local $overnments, whether the% are relevant to local needs and resources or not. Aurther, a basic #eature o# local #iscal autonom% is the constitutionall% mandated automatic release o# the shares o# local $overnments in the national internal revenue. Civil Service Commission v. /e#%rtment o, +$")et %n" M%n%)ement (&? -<D9E-, C9.....CC<) :No Repot' No ReleaseE poli!$ %iolates fis!al autonom$. A 7no report, no release8 polic% ma% not be validl% en#orced a$ainst o##ices vested with #iscal autonom%. uch polic% cannot be en#orced a$ainst o##ices possessin$ #iscal autonom% such as Constitutional Commissions and local $overnments. The automatic release provision #ound in the Constitution means that these local $overnments cannot be re*uired to per#orm an% act to receive the 7(ust share8 accruin$ to them #rom the national co##ers. Pimentel v. A)$irre (&? -/.EDD, C9.-E..CCC) E7e!uti%e 2it""olding of (+F of t"e Intenal Re%enue Allotment 2it"out !ompl$ing 2it" e4uiements set fot" in Se!tion *GB L&C %iolated lo!al autonom$ and fis!al autonom$ of lo!al go%enmentsH <it""olding amounted to e7e!uti%e !ontol 7+nder e'istin$ law, local $overnment units, in addition to havin$ administrative autonom% in the e'ercise o# their #unctions, en(o% #iscal autonom% as well8 and that 7#iscal autonom% means that local $overnments have the power to create their own sources o# revenue in addition to their e*uitable share in the national ta'es released b% the national $overnment, as well as the power to allocate their resources in accordance with their own priorities8. /%"ole v. Commission on A$"it (&? -.</<C, -..C/..CC.) D,M !annot impose a limitation 2"en t"e la2 imposes none. DB) 3ocal Bud$et Circular "o. << which provides a limit to allowance that ma% be $iven b% local $overnments to (ud$es is null and void since the -EE- 3ocal &overnment does not prescribe a limit. B% virtue o# hisG her power o# supervision, the :resident can onl% inter#ere in the a##airs and activities o# a local $overnment unit i# it has acted contrar% to law. Le*nes v. COA (&? -=/<EB, -..--..CC/) D,M !annot nullif$ a statuto$ po2e. A "ational Compensation Circular b% the Department o# Bud$et and )ana$ement cannot nulli#% the authorit% o# municipalities to $rant allowances to (ud$es authori>ed in the -EE- 3ocal &overnment Code. The Circular prohibits the pa%ment o# representation and transportation allowances #rom more than one source R #rom national and local $overnments. ?. Sel,A/etermin%tion 7el#-determination re#ers to the need #or a political structure that will respect the autonomous peoplesP uni*ueness and $rant them su##icient room #or sel#- e'pression and sel#-construction. (Disomangcop v. Secretar% of @ublic AorBs and !ig"a%s, <( $7*+7+, $$.25.2007) <. /ecentr%liG%tion A necess%r* #rere0$isite o, %$tonom* is "ecentr%liG%tion. Decentrali>ation is a decision b% the central $overnment authori>in$ its subordinates, whether $eo$raphicall% or #unctionall% de#ined, to e'ercise authorit% in certain areas. It involves decision-ma4in$ b% subnational units. It is t%picall% a dele$ated power, wherein a lar$er $overnment chooses to dele$ate certain authorit% to more local $overnments. Aederalism implies some measure o# decentrali>ation, but unitar% s%stems ma% also decentrali>e. Decentrali>ation di##ers intrinsicall% #rom #ederalism in that the sub-units that have been authori>ed to act (b% dele$ation) do not possess an% claim o# ri$ht a$ainst the central $overnment. Decentrali>ation comes in two #orms T deconcentration and devolution. /econcentr%tion is administrative in nature5 it involves the trans#er o# #unctions or the dele$ation o# authorit% and responsibilit% #rom the national o##ice to the re$ional and local o##ices. This mode o# decentrali>ation is also re#erred to as administrative decentrali>ation. /evol$tion, on the other hand, connotes political decentrali>ation, or the trans#er o# powers, responsibilities, and resources #or the per#ormance o# certain #unctions #rom the central $overnment to local $overnment units. This is a more liberal #orm o# decentrali>ation since there is an actual trans#er o# powers and responsibilities. It aims to $rant $reater autonom% to local $overnment units in co$ni>ance o# their ri$ht to sel#-$overnment, to ma4e them sel#-reliant, and to improve their administrative and technical capabilities.8 (Disomangcop v. Secretar% of @ublic AorBs and !ig"a%s, <( $7*+7+, $$.25.*++B) 7/ecentr%liG%tion sim#l* me%ns t(e "evol$tion o, n%tion%l %"ministr%tion5 not #o;er5 to loc%l )overnments. 3ocal o##icials remain accountable to the central $overnment as the law ma% provide.8 (@imentel v. )guirre, <( $32*++, 0,.$*.*+++) &' Are autonom% and decentrali>ation the same1 A' "ot reall%. Autonom% is either de!entali6ation of administation or de!entali6ation of po2e. I sweat, I bleed, I soar Service, Sacrifice, Excellence =C FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
There is de!entali6ation of administation when the central $overnment dele$ates administrative powers to political subdivisions in order to broaden the base o# $overnmental power an in the process to ma4e local $overnments more responsive and accountable and ensure their #ullest development as sel#-reliant communities and ma4e them mote e##ective partners in the pursuit o# national development and social pro$ress. At the same time it relieves the central $overnment o# the burden o# mana$in$ local a##airs and enable it to concentrate on national concernsO De!entali6ation of po2e on the other hand, involves an abdication o# political power in #avor o# local $overnment units declared to be autonomous. In that case the autonomous $overnment is #ree to chart its own destin% and shape its #uture with minimum intervention #rom central $overnment authorities. Accordin$ to a constitutional author, decentrali>ation o# power amounts to 7sel#- immolation,8 since in that event, the autonomous $overnment becomes accountable not to the central authorities but to its constituenc%. (3imbona v. Conte )i$uelin, 16!6 citin$ Bernas, Brewin$ the torm 2ver Autonom%) --E
I. Presi"entMs ?ener%l S$#ervision Section 4. The :resident o# the :hilippines shall e'ercise $eneral supervision over local $overnments. :rovinces with respect to component cities and municipalities, and cities and municipalities with respect to component baran$a%s, shall ensure that the acts o# their component units are within the scope o# their prescribed powers and #unctions. 1. Po;er o, ?ener%l S$#ervision The power o# $eneral supervision is the power o# a superior o##icer to see to it that the lower o##icers per#orm their #unctions in accordance with law. It does not include the power to substitute oneHs (ud$ment #or that o# a lower o##icer in matters where a lower o##icer has various le$al alternatives to choose #rom. -.C 7Consistent with the doctrine that local $overnment does not mean the creation o# imperium in imperio or a state within a tate, the Constitution has vested the :resident o# the :hilippines the power o# $eneral supervision over local $overnment units. uch $rant o# power includes the #o;er o, "isci#line over loc%l o,,ici%ls, 4eepin$ them accountable to the public, and seein$ to it that their acts are 4ept within the bounds o# law. "eedless to sa%, this awesome supervisor% power, however, must be e'ercised (udiciousl% and with utmost circumspection so as not to trans$ress the avowed constitutional polic% o# local autonom%.8 (#alon4o v. Damora, <( $3,,$+, 0,.2,.**) 7@and in hand with the constitutional restraint on the :residentPs power over local $overnments is the state polic% o# ensurin$ local autonom%. ''' 11# Bernas Primer at 414 (2006 ed.) 120 Bernas Primer at 41" (2006 ed.) P%r%"o>ic%ll*5 loc%l )overnments %re still s$-:ect to re)$l%tion5 (o;ever limite"5 ,or t(e #$r#ose o, en(%ncin) sel,A)overnment.8 (@imentel v. )guirre, <( $32*++, 0,.$*.2000) &' 0hen ection -D9 o# the 3ocal &overnment Code authori>es the ecretar% o# Iustice to pass (ud$ment on the constitutionalit% or le$alit% o# ta' ordinances or revenue measures, does he not e'ercise the power o# control1 A' "o. @e does not thereb% dictate the law should be but merel% ensures that the ordinance is in accordance with law. (Drilon v. 3im) &' :etitioner challen$es the ri$ht o# the :resident, throu$h the ecretar% o# Interior to suspend him on the $round that the removal o# the phrase 7As ma% be provided b% law8 #rom unconstitutional provision has stripped the :resident and le$islature o# the power over local $overnments. Corollaril%, he ar$ues that new Constitution has e##ectivel% repealed e'istin$ laws on the sub(ect. Decide. A' The power o# $eneral supervision o# the :resident includes the power to investi$ate and remove. )oreover, ection / itsel# o# this Article provides that the 3ocal &overnment Code (3&C) ma% provide #or 7removal8 thus indicatin$ that laws on the sub(ect are not out o# the compass o# the le$islature. Autonom% does not trans#orm local $overnments into 4in$doms unto themselves. (&an>on v. CA, -EE-) &' )a% the ecretar% o# the local &overnment annul the election o# o##icers o# a #ederation o# baran$a% o##icials1 A' "o. uch annulment would amount to control and there#ore in e'cess o# e'ecutive supervisor% powers. (Taule v. ecretar% antos, -EE-) -.- 2. S$#ervisor* Str$ct$re in t(e Loc%l ?overnment S*stem The :resident has $eneral supervision over all 3&+s. But his direct supervisor% contact is with autonomous re$ions, provinces, and independent cities. The rest #ollow in hierarchal order as indicated in ection =. @. Loc%l A$tonom* %n" Le)isl%tive Control 7The Constitution did not, however, intend, #or the sa4e o# local autonom%, to "e#rive t(e le)isl%t$re o, %ll %$t(orit* over m$nici#%l cor#or%tions, in particular, concernin$ discipline. The chan$e in constitutional lan$ua$e did not e'empt local $overnments #rom le$islative re$ulation provided re$ulation is consistent with the #undamental premise o# autonom%.8 (<an4on v. C), <( *3252, 0+.05.*$) This basic relationship between the national le$islature and the local $overnment units has not been en#eebled b% the new provisions in the Constitution stren$thenin$ the polic% o# local 121 Bernas Primer at 41# (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence =- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
autonom%. 0ithout meanin$ to detract #rom that polic%, we here con#irm that Con)ress ret%ins control o, t(e loc%l )overnment $nits %lt(o$)( in si)ni,ic%ntl* re"$ce" "e)ree now than under our previous Constitutions. The power to create still includes the power to destro%. The power to $rant still includes the power to withhold or recall. ''' B% and lar$e, however, the national le$islature is still the principal o# the local $overnment units, which cannot de#% its will or modi#% or violate it.8 (#agta0as v. @r%ce @roperties, <( $$$0*,, 0,.20.*7) III. Loc%l ?overnment Co"e Pin!ipal &uidelines &i%en to Congess Effe!ti%it$ of L&C S!ope of Appli!ation De!laation of Poli!$ Rules of Intepetation Section 3. The Con$ress shall enact a local $overnment code which shall provide #or a more responsive and accountable local $overnment structure instituted throu$h a s%stem o# decentrali>ation with e##ective mechanisms o# recall, initiative, and re#erendum, allocate amon$ the di##erent local $overnment units their powers, responsibilities, and resources, and provide #or the *uali#ications, election, appointment and removal, term, salaries, powers and #unctions and duties o# local o##icials, and all other matters relatin$ to the or$ani>ation and operation o# the local units. A. Princi#%l ?$i"elines ?iven to Con)ress The principal $uidelines $iven to Con$ress #or structurin$ 3&+s are, 1. That the structure must be 7responsive and accountable8 and 7instituted thou$h a s%stem o# decentrali>ation.8 2. The structure must be both sensitive to the needs o# the localit%, accountable to the electorate o# the localit%, and #reed as much as possible #rom central $overnment inter#erence. -.. &' The -E9/ Constitution contained a provision which said that 7"o chan$e in the e'istin$ #orm o# $overnment shall ta4e e##ect until rati#ied b% a ma(orit% o# the votes cast in a plebiscite called #or the purpose.8 0h% was this not retained1 A' The provision was considered too limitive o# the power o# Con$ress. -./ +. 7,,ectivit* o, L?C @%n$%r* 15 16625 unless otherwise provided herein, a#ter its complete publication in at least one newspaper o# $eneral circulation (?A 9-BC, ection </B) 122 Bernas Commentar*, p 10"1 (2003 ed). 123 Bernas Primer at 417 (2006 ed.) C. Sco#e o, L?CMs A##lic%tion The Code shall appl% to all provinces, cities, municipalities, baran$a%s and other political subdivisions as ma% be created b% law, and , to the e'tent herein provided, to o##icials, o##ices or a$encies o# the "ational &overnment (?A 9-BC, ection </B) /. /ecl%r%tion o, Polic* (ection .) 1. The territorial and political subdivisions o# the tate shall en(o% $enuine and meanin$#ul local autonom% to enable them to attain their #ullest development as sel#-reliant communities and ma4e them more e##ective partners in the attainment o# national $oals5 .. !nsure accountabilit% o# local $overnment units throu$h the institution o# e##ective mechanisms o# recall, initiative and re#erendum5 and /. ?e*uire all national a$encies and o##ices to conduct periodic consultations with appropriate local $overnment units, non-$overnmental and peopleHs or$ani>ations, and other concerned sectors o# the communit% be#ore an% pro(ect or pro$ram is implemented in their respective (urisdictions. 7. 3$les o, Inter#ret%tion -. An% provision on a power o# local $overnment unit shall be liberall% interpreted in its #avor, and in case o# doubt, an% *uestion thereon shall be resolved in #avor o# devolution o# powers and o# the local $overnment unit. .. An% ta' ordinance or revenue measure shall be construed strictl% a$ainst the local $overnment unit enactin$ it and liberall% in #avor o# the ta'pa%er. An% ta' e'emption, incentive or relie# $ranted b% an% local $overnment unit shall be construed strictl% a$ainst the person claimin$ it. /. The $eneral wel#are provisions shall be liberall% interpreted to $ive more powers to local $overnment units in acceleratin$ economic development and up$radin$ the *ualit% o# li#e #or the people in the communit%. =. ?i$hts and obli$ations e'istin$ on the date o# e##ectivit% o# this Code and arisin$ out o# contracts or an% other source o# prestation involvin$ a local $overnment unit shall be $overned b% the ori$inal terms and conditions o# said contracts or the law in #orce at the time such ri$hts were vested. $. In the resolution o# controversies arisin$ under this Code where no le$al provision or (urisprudence applies, resort ma% be had to I sweat, I bleed, I soar Service, Sacrifice, Excellence =. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
the customs and traditions in the place where the controversies ta4e place. -.= (See page 6,6'6*, of :acBEs Compendium(2006)) IH. ?ener%l Po;ers %n" Attri-$tes o, L?Us Po2es in &eneal &o%enmental Po2es Copoate Po2es Section 5. !ach local $overnment unit shall have the power to create its own sources o# revenues and to lev% ta'es, #ees and char$es sub(ect to such $uidelines and limitations as the Con$ress ma% provide, consistent with the basic polic% o# local autonom%. uch ta'es, #ees, and char$es shall accrue e'clusivel% to the local $overnments. Section 6. 3ocal $overnment units shall have a (ust share, as determined b% law, in the national ta'es which shall be automaticall% released to them. Section . 3ocal $overnments shall be entitled to an e*uitable share in the proceeds o# the utili>ation and development o# the national wealth within their respective areas, in the manner provided b% law, includin$ sharin$ the same with the inhabitants b% wa% o# direct bene#its. A. Po;ers in ?ener%l 1. So$rces -. Article II, ection .<, 7The ate shall ensure the autonom% o# local $overnments.8 .. Article X, ections <,B, M 9. /. tatutes (e.$., ?A 9-BC) =. Charter (particularl% o# cities) 2. Cl%ssi,ic%tion 1. !'press , implied, inherent (powers necessar% and proper #or $overnance, e.$., to promote health and sa#et%, enhance prosperit%, improve morals o# inhabitants) 2. :ublic or $overnmental5 :rivate or proprietar% 3. Intramural , e'tramural 4. )andator% , director%5 )inisterial, discretionar%. ?overnment%l Po;ers Cor#or%te Po;ers -. &eneral 0el#are .. Basic ervices and Aacilities /. :ower to &enerate and Appl% ?esources =. !minent Domain <. ?eclassi#ication o# 3ands B. Closure and 2penin$ o# ?oads -. To have continuous succession in its corporate name. .. To sue and be sued /. To have and use a corporate seal =. To ac*uire and conve% real or personal propert% 124 0ntonio 3achura, -utline on Political a!, $61 (2006) 9. 3ocal 3e$islative :ower D. Authorit% over :olice +nits <. :ower to enter into contracts B. To e'ercise such other powers as are $ranted to corporations, sub(ect to the limitations provided in the Code and other laws. 3. 7>ec$tion o, Po;ers -. 0here statute prescribes the manner o# e'ercise, the procedure must be #ollowed5 2. 0here the statute is silent, local $overnment units have discretion to select reasonable means and methods o# e'ercise. -.< +. ?overnment%l Po;ers -. &eneral 0el#are (?A 9-BC, ection -B) .. Basic ervices and Aacilities (?A 9-BC, 6-9) /. :ower to &enerate and Appl% ?esources (?A 9-BC 6-D5 Article X, 66<-9) =. !minent Domain (?A 9-BC, 6 -E) <. ?eclassi#ication o# 3ands (?A 9-BC, 6 .C) B. Closure and 2penin$ o# ?oads (?A 9-BC, 6 .-) 9. 3ocal 3e$islative :ower (?A 9-BC, 66 =D-<E) D. Authorit% over :olice +nits (ee Article X;I, ection B5 :": Act) 1. ?ener%l 8el,%re ?A 9-BC, ection -B, !ver% local $overnment unit shall e'ercise the powers e'pressl% $ranted, those necessaril% implied there#rom, as well as powers necessar%, appropriate, or incidental #or its e##icient and e##ective $overnance, and those which are essential to the promotion o# $eneral wel#are. 0ithin their respective territorial (urisdiction, local $overnment units shall ensure and support, amon$ other thin$s, the preservation and enrichment o# culture, promote health and sa#et%, enhance the ri$ht o# the people to a balanced ecolo$%, encoura$e and support the development o# appropriate and sel#-reliant scienti#ic and technolo$ical capabilities, improve public morals, enhance economic prosperit% and social (ustice, promote #ull emplo%ment amon$ its residents, maintain peace and order, and preserve the com#ort and convenience o# their inhabitants. Police #o;er. The $eneral wel#are clause is the statutor% $rant o# police power to local $overnment units. 7The )ener%l ;el,%re cl%$se (%s t;o -r%nc(es. (-) ?ener%l le)isl%tive #o;er, authori>es the municipal council to enact ordinances and ma4e re$ulations not repu$nant to law, as ma% be necessar% to carr% into e##ect and dischar$e 12$ 0ntonio 3achura, -utline on Political a!, $62 (2006) I sweat, I bleed, I soar Service, Sacrifice, Excellence =/ FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
the powers and duties con#erred upon the municipal council b% law. (.) Police #o;er #ro#er, authori>es the municipalit% to enact ordinances as ma% be necessar% and proper #or the health and sa#et%, prosperit%, morals, peace, $ood order, com#ort, and convenience o# the municipalit% and its inhabitants, and #or the protection o# their propert%.8 ((ural ?anB of #aBati v. #aBati, <( $50,63, 0,.02.2007) 7As with the tate, the local $overnment ma% be considered as havin$ properl% e'ercised its police power onl% i# the #ollowin$ re*uisites are met, (-) the interests o# the public $enerall%, as distin$uished #rom those o# a particular class, re*uire the inter#erence o# the tate, and (.) the means emplo%ed are reasonabl% necessar% #or the attainment o# the ob(ect sou$ht to be accomplished and not undul% oppressive upon individuals. 2therwise stated, t(ere m$st -e % conc$rrence o, % l%;,$l s$-:ect %n" l%;,$l met(o".8 (;ucena <rand Central v. :)C, <( $7+33* 02.23.2005) Limit%tions on t(e e>ercise o, #o;ers $n"er t(is cl%$se' 1. !'ercisable onl% within territorial limits o# the local $overnment unit, e'cept #or protection o# water suppl%. 2. !*ual protection clause. (The interests o# the public in $eneral, as distin$uished #rom those o# a particular class, re*uire the e'ercise o# the power. 3. Due process clause . (The means emplo%ed are reasonabl% necessar% #or the accomplishment o# the purpose and not undul% oppressive on individuals) 4. )ust not be contrar% to the Constitution and the laws. :rohibited activities ma% not be le$ali>ed in the $uise o# re$ulation5 activities allowed b% law cannot be prohibited, onl% re$ulated. M%)t%:%s v. Pr*ce Pro#erties' To be valid , an ordinance, a. )ust not contravene the Constitution and an% statute5 b. )ust not be un#air or oppressive5 c. )ust not be partial or discriminator%5 d. )ust not prohibit, but a% re$ulate trade5 e. )ust not be unreasonable and5 #. )ust be $eneral in application and consistent with public polic%. C%ses' H%li" 7>ercise o, Police Po;er 1. Clos$re o, +%n9. A local $overnment unit ma%, in the e'ercise o# police power under the $eneral wel#are clause, order the closure o# a ban4 #or #ailure to secure the appropriate ma%orHs permit and business licenses. (?ural Ban4 o# )a4ati v. )unicipalit% o# )a4ati, .CC=) 2. +%n on S(i#ment. The C upheld, as le$itimate e'ercise o# the police power, the validit% o# the :uerto :rincesa 2rdinance 7bannin$ the shipment o# all live #ish and lobster outside :uerto :rincesa #rom -EE/--EED as well as the an$$unian$ :anlalawi$an ?esolution 7prohibitin$ that catchin$, $atherin$, possessin$, bu%in$, sellin$ and shipment o# live marine coral dwellin$ o# a*uatic or$anisms #or a period o# < %ears, comin$ #rom :alawan waters.8 /. It was held that the power o# municipal corporations is broad and has been said to be commensurate with but to e'ceed the dut% to provide #or the real needs o# the people in their health, sa#et%, com#ort and convenience, and consistentl% as ma% be with private ri$hts. 2rdinance is not unconstitutional merel% because it incidentall% bene#its a limited number o# persons. The support #or the poor has lon$ been an accepted e'ercise o# the police power in the promotion o# the common $ood. (Bina% v. Domin$o, .C- C?A <CD) 4. Im#osition o, Ann$%l 4ee. It was held that where police power is used to discoura$e non- use#ul occupations or enterprises, an annual permitG license #ee o# :-CC.CC althou$h a bit e'orbitant, is valid. (:h%sical Therap% 2r$ani>ation o# the :hilippines v. )unicipal Board o# )anila) <. The ordinance re*uirin$ owners o# commercial cemeteries to reserve BS o# their burial lots #or burial $rounds o# paupers was held invalid5 it was not an e'ercise o# the police power, but o# eminent domain. (FC v. !ricta, -.. C?A 9<E) B. The )anila 2rdinance prohibitin$ barber shops #rom conductin$ massa$e business in another room was held valid, as it was passed #or the protection o# public morals. (;elasco v. ;ille$as, -.C C?A <BD) 7. Qonin) Or"in%nce. A >onin$ ordinance reclassi#%in$ residential into commercial or li$ht industrial area is a valid e'ercise o# the police power. (2rti$as v. Aeati Ban4, E= C?A <//) D. The act o# the )unicipal )a%or in openin$ Iupiter and 2rbit treets o# Bel Air ubdivision, to the public was deemed a valid e'ercise o# police power. (an$alan$ v. IAC, -9B C?A 9-E) Inv%li" Or"in%nces 1. L?U m%* not re)$l%te s$-scri-er r%te. A local $overnment unit ma% not re$ulate the subscribe rates char$ed b% CAT; operators within its territorial (urisdiction. The re$ulation and supervision o# the CAT; industr% shall remain vested 7solel%8 in the "TC. Considerin$ that the CAT; industr% is so technical a #ield, "TC, a speciali>ed a$enc%, is in a better position than the local $overnment units to re$ulate it. This does not mean, however, that the 3&+ cannot prescribe re$ulations over CAT; operators in the e'ercise o# the $eneral wel#are clause. (Batan$as CAT; v. CA, .CC=) I sweat, I bleed, I soar Service, Sacrifice, Excellence == FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
2. Or"in%nce contr%r* to st%t$te (el" inv%li". The ordinance prohibitin$ the issuance o# a business permit to, and cancellin$ an% business permit o# an% establishment allowin$ its premises to be used as a casino, and the ordinance prohibitin$ the operation o# a casino, were declared invalid #or bein$ contrar% to :D -DBE (Charter o# :A&C2?)which has the character and #orce o# a statute. ()a$ta(as) 3. 8(ere #o;er to )r%nt ,r%nc(ise not )r%nte". 0hat Con$ress dele$ated to the Cit% o# )anila in ?A =CE (?evised Charter o# )anila) with respect to wa$ers and bettin$ was the power 7to license, permit or re$ulate,8 not the power to #ranchise. This means that the license or permit issued b% the Cit% o# )anila to operate wa$er or bettin$ activit%, such as (ai-lai, would not amount to somethin$ meanin$#ul unless the holder o# the license or permit was also #ranchised b% the "ational &overnment to operate. There#ore, )anila 2rdinance "o. 9CB<, which purported to $rant ADC a #rachise to conduct (ai-alai operations, is void and ultra vires (3im v. :ac*uin$) ?A 9-BC e'pressl% authori>es the )a%or to issue permits and licenses #or the holdin$ o# activities #or an% charitable or wel#are purpose5 thus, the )a%or cannot #ei$n total lac4 o# authorit% to act on re*uests #or such permits. (2livares v. andi$anba%an , -EE<) But its is the 3a$una 3a4e Development Authorit% (33DA), not the municipal $overnment, which has the e'clusive (urisdiction to issue permits #or the en(o%ment o# #isher% privile$es in 3a$una de Ba%, b% virtue o# ?A =D<C, :D D-/ and !2 E.9, because althou$h ?A 9-BC vests in municipalities the authorit% to $rant #isher% privile$es in municipal waters, ?A 9-BC did not repeal the charter o# 33DA, and the latter is an e'ercise o# the police power. (33DA v. CA) =. The ordinance o# Ba%amban$, :an$asinan, appointin$ 3acuesta mana$er o# #isheries #or .< %ears, renewable #or another .< %ears, was held invalid, ultra vires, as it e##ectivel% amends a $eneral law.(Terrado, v. CA, -/- C?A /9/) <. An ordinance imposin$ :C./C police inspection #ee per sac4 o# cassava #lour produced and shipped out o# the municipalit% was held invalid. It is not a license #ee but a ta', un(ust and unreasonable, since the onl% service o# the municipalit% is #or the policeman to veri#% #rom the drivers o# truc4s o# petitioner the number o# sac4s actuall% loaded. ()atalin Coconut v. )unicipal Council o# )alaban$, -=/ C?A =C=) B. The power to issue permits to operate coc4pits is vested in the )a%or, in line with the polic% o# local autonom%. (:hilippine &ame#owl Commission v. IAC) 7. The Bocaue, Bulacan ordinance prohibitin$ the operation o# ni$ht-clubs, was declared invalid, because o# his prohibitor%, not merel% re$ulator%, character. (Dela Cru> v. :aras, -./ C?A <BE) D. It was held that the ordinance penali>in$ persons char$in$ #ull pa%ment #or admission o# children (a$es 9--.) in moviehouses was an invalid e'ercise o# police power #or bein$ unreasonable and oppressive on business o# petitioners. (Balacuit v. CAI) 1663 +%r &$estion &' )a%or Al#redo 3im closed the #unhouses in the !rmita district suspected o# bein$ #ronts #or prostitution. To determine the #easibilit% o# puttin$ up a le$ali>ed red li$ht district, the cit% council conducted an in*uir% and invited operators o# the closed #unhouses to $et their views. "o one honored the invitation. The cit% council issued subpoenas to compel the attendance o# the operators but which were completel% disre$arded. The council declared the operators $uilt% o# contempt and issued warrants #or their arrest. The operators come to %ou #or le$al advice, as4in$ the #ollowin$ *uestions, (-) Is the council empowered to issue subpoenas to compel their attendance1 (.) Does the council have the power to cite #or contempt1 S$))este" Ans;er' (-) The cit% council is not empowered to issue subpoenas to compel the attendance o# the operators o# the #un-houses In the !rmita district. There is no provision in the Constitution, the 3ocal &overnment Code, or an% law e'pressl% $rantin$ local le$islative bodies the power to subpoena witnesses. As held in "e$ros 2riental II !lectric Cooperative, Inc. vs. an$$unian$ :anlun$sod o# Duma$uete, -<< C?A =.-, such power cannot be implied #rom the $rant o# dele$ated le$islated power. uch power is Iudicial. To allow local le$islative bodies to e'ercise such power without e'press statutor% basis would violate the doctrine o# separation o# powers. (.) The cit% council does not have the power to cite #or contempt. There is li4ewise no provision in the Constitution, the 3ocal &overnment Code, or an% other laws $rantin$ local le$islative bodies the power to cite #or contempt. uch power cannot be deemed implied in the dele$ation o# le$islative power to local le$islative bodies, #or the e'istence o# such power poses a potential dero$ation o# individual ri$hts. 2. +%sic Services %n" 4%cilities ?A 9-BC, ection -9, 3ocal $overnment units shall endeavor to be sel#-reliant and shall continue e'ercisin$ the powers and dischar$in$ the duties and #unctions currentl% vested upon them. The% shall also dischar$e the #unctions and responsibilities o# national a$encies and o##ices devolved to them pursuant to this Code (within B months a#ter the e##ectivit% o# this Code) The% shall li4ewise e'ercise such other powers and dischar$e such other #unctions as are necessar%, appropriate, or incidental to e##icient and e##ective provision o# the basic services and #acilities enumerated herein. "ote that public wor4s and in#rastructure pro(ects and other #acilities, pro$rams and services #unded b% the national $overnment under the &eneral Appropriations Act and other laws, are not covered under this section, e'cept where the local $overnment unit is dul% desi$nated as the implementin$ a$enc% #or such pro(ects, #acilities, pro$rams and services. -.B /evol$tion. Devolution re#ers to the act b% which the national $overnment con#ers power and authorit% upon the various local $overnment units to per#orm speci#ic #unctions and responsibilities. This includes 126 0ntonio 3achura, -utline on Political a!, $66 (2006) I sweat, I bleed, I soar Service, Sacrifice, Excellence =< FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
the trans#er to the local $overnment units o# the records, e*uipment and other assets and personnel o# national a$encies and o##ices. ?e$ional o##ices o# national a$encies shall be phased out within one %ear #orm the approval o# this Code. Career re$ional directors who cannot be absorbed b% the local $overnment unit shall be retained b% the national $overnment, without diminution in ran4, salar% or tenure. -.9 3. Po;er to ?ener%te %n" A##l* 3eso$rces 3A 16I5 Section 1!, 3ocal $overnment units shall have the power and authorit% to establish an or$ani>ation that shall be responsible #or the e##icient and e##ective implementation o# their development plans, pro$ram ob(ectives and priorities5 to create their own sources o# revenue and to lev% ta'es, #ees and char$es which shall accrue e'clusivel% to their use and disposition and which shall be retained b% them5 to have a (ust share in the national ta'es which shall be automaticall% and directl% released to them without need o# #urther action5 to have an e*uitable share in the proceeds #rom the utili>ation and development o# the national wealth and resources within their respective territorial (urisdictions includin$ develop, lease, encumber, alienate or otherwise dispose o# real or personal propert% held b% them in their proprietar% capacit% and to appl% their resources and assets #or productive, developmental or wel#are purposes, in the e'ercise o# #urtherance o# their $overnmental or proprietar% powers and #unctions and thereb% ensure their development into sel#-reliant communities and active participants in the attainment o# national $oals. Section 1! o, 3A 16I rest%tes %n" im#lements Sections 5565 o, Article X. But this power is alwa%s sub(ect to the limitations which the Con$ress ma% provide b% law. (Basco v. :A&C2?, -E9 C?A <.) Thus, it was held that the local $overnment units have no power to ta' instrumentalities o# the "ational &overnment, such as :A&C2?. 7The #o;er to t%> is primaril% vested in the Con$ress5 however, in our (urisdictions, it ma% be e'ercised b% local le$islative bodies, no lon)er merel* -* virt$e o, % v%li" "ele)%tion %s -e,ore5 -$t #$rs$%nt to "irect %$t(orit* con,erre" -* Section 55 Article X o, t(e Constit$tion. +nder the latter the e'ercise o# the power ma% be sub(ect to such $uidelines and limitations as the Con$ress ma% provide which, however, must be consistent with the basic polic% o# local autonom%. ''' These polic% considerations are consistent with the tate polic% to ensure autonom% to local $overnments and the ob(ective o# the 3&C that the% en(o% $enuine and meanin$#ul local autonom% to enable them to attain their #ullest development as sel#-reliant communities and ma4e them e##ective partners in the attainment o# national $oals. The power to ta' is the most e##ective instrument to raise needed revenues to 127 0ntonio 3achura, -utline on Political a!, $67 (2006) #inance and support m%riad activities o# local $overnment units #or the deliver% o# basic services essential to the promotion o# the $eneral wel#are and the enhancement o# peace, pro$ress, and prosperit% o# the people.8 (#actan Cebu 1nternational )irport v. #arcos, <( $$00+2, 0*.$$.*6) &' 0hat are the #und sources o# local $overnments1 A' The% are, -. 3ocal ta'es, #ees and char$es5 .. Its share in the national ta'es5 /. Its share in the proceeds o# the utili>ation o# national resources within their respective areas5 4. 2ther 7sources o# revenues8 which the% ma% le$itimatel% ma4e use o# either in their public or $overnmental capacit%, or private or proprietar% capacit%. -.D &' 0hat is the scope o# their power to lev% ta'es, #ees, and char$es1 A' The% are sub(ect to such $uidelines and limitations as Con$ress ma% provide. @owever, such $uidelines and limitations to be imposed b% Con$ress must not be such as to #rustrate the 7basic polic% o# local autonom%.8 -.E &' 0hat is the share o# the national $overnment in such ta'es, #ees and char$es1 A' "one. -/C &' In what wa% can local $overnments share in the #ruits o# the utili>ation o# local natural resources1 A' 3ocal $overnments can either have shares #rom revenues accruin$ throu$h #ees and char$es or the% can receive direct bene#its such as lower rates, e.$., #or consumption o# electricit% $enerated within their localit%. -/- 4$n"%ment%l Princi#le ?overnin) t(e 7>ercise o, t(e T%>in) %n" ot(er 3even$eA3%isin) Po;ers o, L?Us (?A 9-BC, ection -/C) -. Ta'ation shall be uni#orm in each 3&+5 .. Ta'es, #ees, char$es and other impositions shall be e*uitable and based as #ar as practicable on the ta'pa%erHs abilit% to pa%5 levied and collected onl% #or public purposes5 not un(ust, e'cessive, oppressive or con#iscator%5 and not contrar% to law, public polic%, national economic polic%, or in restraint o# trade5 3. The collection o# local ta'es, #ees and char$es and other impositions shall in no case be let to an% private person5 =. The revenue collected shall inure solel% to the bene#it o#, and be sub(ect to disposition b% the local $overnment unit, unless speci#icall% provided herein5 and <. !ach 3&+ shall as #ar as practicable evolve a pro$ressive s%stem o# ta'ation. 12" Bernas Primer at 423 (2006 ed.) 12# Bernas Primer at 423 (2006 ed.) 130 Bernas Primer at 423 (2006 ed.) 131 Bernas Primer at 423 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence =B FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
C%ses' 1. The e'ercise b% local $overnments o# the power to ta' is ordained b% the present Constitution5 onl% $uidelines and limitations that ma% be established b% Con$ress can de#ine and limit such power o# local $overnments. (:hilippine :etroleum Corporation v. )unicipalit% o# :ililia, ?i>al, -ED C?A D.) 2. Con$ress has the power o# control over local $overnments5 i# Con$ress can $rant a municipal corporation the power to ta' certain matters, it can also provide #or e'emptions or even ta4e bac4 the power. ''' The power o# local $overnments to impose ta'es and #ees is alwa%s sub(ect to limitations which Con$ress ma% provide b% law.''' 3ocal $overnments have no power to ta' instrumentalities o# the "ational &overnment and is there#ore e'empt #rom local ta'es. (Basco v. :A&C2?, -E9 C?A <.) 3. 3&+s have the power to create their own sources o# revenue, lev% ta'es, etc., but sub(ect to such $uidelines set b% Con$ress. (!stanislao v. costales, -EB C?A D</) =. ection -D9, ?A 9-BC which authori>es the ecretar% o# Iustice to review the constitutionalit% o# le$alit% o# a ta' ordinanceTand i# warranted, to revo4e it on either or both $roundsTis valid, and does not con#er the power o# control over local $overnment units in the ecretar% o# Iustice, as even i# the latter can set aside a ta' ordinance, he cannot substitute his own (ud$ment #or that o# the local $overnment unit. (Drilon v. 3im, -EE=) $. The Cit% o# Cebu as a 3&+, the power to collect real propert% ta'es #rom the )actan Cebu International Airport Auhtorit% ()CIAA v. )arcos, -EEB) There is no *uestion that under ?A BE<D, )CIAA is e'empt #orm the pa%ment o# realt% ta'es imposed b% the "ational &overnment or an% o# its political subdivisions5 nevertheless, since ta'ation is the rule, the e'emption ma% be withdrawn at the pleasure o# the ta'in$ authorit%. The onl% e'ception to this rule is where the e'emption was $ranted to private parties based on material consideration o# a mutual nature, which then becomes contractual and is thus covered b% the non-impairment clause o# the Constitution. 6. 0hile indeed local $overnments are authori>ed to impose business ta'es, the% can do so onl% i# the entit% bein$ sub(ected to business ta' is a business. (Thus, #or )a4ati to impose a business ta' on a condominium, the cit% must prove that the condominium is en$a$ed in business.) -/. Article X5 Section 6' 13ocal $overnment units shall have a (ust share, as determined b% law, in the national ta'es which shall be automaticall% released to them.8 S(%re in N%tion%l T%>es. ection B mandates that (-) the 3&+s shall have a W(ust shareW in the national ta'es5 (.) the W(ust shareW shall be determined b% law5 and (/) the W(ust shareW shall be automaticall% released to the 3&+s. Thus, where the local 132 Yamane v. BA e!anto Condominium, :.2. 3o. 1$4##3, -cto'er 2$, 200$. $overnment share has been determined b% the &eneral Appropration Act, its relese ma% not be made sub(ect to te condition that Wsuch amount shall be released to the local $overnment units sub(ect to the implementin$ rules and re$ulations, includin$ such mechanisms and $uidelines #or the e*uitable allocations and distribution o# said #und amon$ local $overnment units sub(ect to the $uidelines that ma% be prescribed b% the 2versi$ht Committee on Devolution.W To sub(ect its distribution and release to the va$aries o# the implementin$ rules and re$ulations, includin$ the $uidelines and mechanisms unilaterall% prescribed b% the 2versi$ht Committee #rom time to time, as sanctioned b% the assailed provisos in the &AAs o# -EEE, .CCC and .CC- and the 2CD resolutions, ma4es the release not automatic and a #la$rant violation o# the constitutional and statutor% mandate that the W(ust shareW o# the 3&+s Wshall be automaticall% released to them.W -// )oreover, neither Con$ress nor the !'ecutive ma% impose conditions on the release. As the Constitution la%s upon the e'ecutive the dut% to automaticall% release the (ust share o# local $overnments in the national ta'es, so it en(oins the le$islature not to pass laws that mi$ht prevent the e'ecutive #rom per#ormin$ this dut%. To hold that the e'ecutive branch ma% disre$ard constitutional provisions which de#ine its duties, provided it has the bac4in$ o# statute, is virtuall% to ma4e the Constitution amendable b% statute R a proposition which is patentl% absurd. )oreover, i# it were the intent o# the #ramers to allow the enactment o# statutes ma4in$ the release o# I?A conditional instead o# automatic, then Article X, ection B o# the Constitution would have been worded to sa% 7shall be Kautomaticall%L released to them as provided b% law.8 -/= 4$n"%ment%l Princi#le ?overnin) t(e 4in%nci%l A,,%irs5 Tr%ns%ctions %n" O#er%tions o, L?Us (?A 9-BC, ection /C<) -. "o mone% shall be paid out o# the local treasur% e'cept in pursuance o# an appropriation ordinance o# law5 .. 3ocal $overnment #unds and monies shall be spent solel% #or public purposes5 3. 3ocal revenue is $enerated onl% #rom sources e'pressl% authori>ed b% law or ordinance, and collection thereo# shall at all times be ac4nowled$ed properl%. =. All monies o##iciall% received b% a local $overnment o##icer in an% capacit% or on an% occasion shall be accounted #or as local #unds, unless otherwise provided b% law5 <. Trust #unds in the local treasur% shall not be paid out e'cept in #ul#illment o# the purpose #or which the trust was created or the #unds received5 B. !ver% o##icer o# the local $overnment unit whose duties permit or re*uire the possession or custod% o# local #unds shall be properl% bonded, and such o##icer shall be accountable and responsible #or said #unds and #or the 133 Batangas v. "#ecutive Secretar$, :.2. 3o. 1$2774. &a* 27, 2004 134 Alternative Center v. %amora, :.2. 3o. 1442$6, 5une ", 200$. I sweat, I bleed, I soar Service, Sacrifice, Excellence =9 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
sa#e4eepin$ thereo# in con#ormit% with the provisions o# law5 9. 3ocal $overnments shall #ormulate sound #inancial plans, and the local bud$ets shall be based on #unctions, activities, and pro(ects in terms o# e'pected results5 D. 3ocal bud$et plans and $oals shall, as #ar as practicable, be harmoni>ed with national development plans, $oals and strate$ies in order to optimi>e the utili>ation o# resources and to avoid duplication in the use o# #iscal and ph%sical resources. E. 3ocal bud$ets shall operationali>e approved local development plans5 -C. 3&+s shall ensure that their respective bud$ets incorporate the re*uirements o# their component units and provide #or e*uitable allocation o# resources amon$ these component units5 --. "ational plannin$ shall be based on local plannin$ to ensure that the needs and aspirations o# the people is articulated b% the 3&+s in their respective local development plans are considered in the #ormulation o# bud$ets o# national line a$encies or o##ices5 -.. Aiscal responsibilit% shall be shared b% all those e'ercisin$ authorit% over the #inancial a##airs, transactions, and operations o# the 3&+s5 and -/. The 3&+ shall endeavor to have a balanced bud$et in each #iscal %ear o# operation. 1661 +%r &$estion &'The province o# :alawan passes an ordinance re*uirin$ all ownersGoperators o# #ishin$ vessels that #ish in waters surroundin$ the province to invest ten percent (-CS) o# their net pro#its #rom operations therein in an% enterprise located in :alawan. "A?C2 Aishin$ Corp., a Ailipino corporation with head o##ice in "avotas, )etro )anila, challen$es the ordinance as unconstitutional. Decide the case. S$))este" Ans;er' The ordinance is invalid. The ordinance was apparentl% enacted pursuant to Article X, ec. 9 o# the Constitution, which entitles local $overnments to an e*uitable share in the proceeds o# the utili>ation and development o# the national wealth within their respective areas. @owever, this should be made pursuant to law. A law is needed to implement this provision and a local $overnment cannot constitute itsel# unto a law. In the absence o# a law the ordinance in *uestion is invalid. 4. 7minent /om%in ?A 9-BC, ection -E, A 3ocal &overnment +nit ma%, throu$h its chie# e'ecutive and actin$ pursuant to an or"in%nce, e'ercise power o# eminent domain #or public use, or purpose, or wel#are #or the bene#it o# the poor and the landless, upon pa%ment o# (ust compensation, pursuant to the provisions o# the Constitution and pertinent laws, :rovided, however, That the power o# eminent domain ma% not be e'ercised unless a valid and de#inite o##er has been previousl% made to the owner and such o##er was not accepted, :rovided, #urther, That the 3&+ ma% immediatel% ta4e possession o# the propert% upon the #ilin$ o# e'propriation proceedin$s and upon ma4in$ a deposit with the proper court o# at least -<S o# the #air mar4et value o# the propert% based on the current ta' declaration o# the propert% to be e'propriated, :rovided, #inall%, That the amount to be paid #or the e'propriated propert% shall be determined b% the proper court, based on the #air mar4et value at the time o# the ta4in$ o# the propert%. 7Loc%l )overnment $nits (%ve no in(erent #o;er o, eminent "om%in and can e'ercise it onl% when e'pressl% authori>ed b% the le$islature. B% virtue o# ?A 9-BC, Con$ress con#erred upon local $overnment units the power to e'propriate. ''' There are two le$al provisions which limit the e'ercise o# this power, (-) no person shall be deprived o# li#e, libert%, or propert% without due process o# law, nor shall an% person be denied the e*ual protection o# the laws5 and (.) private propert% shall not be ta4en #or public use without (ust compensation. Thus, the e'ercise b% local $overnment units o# the power o# eminent domain is not absolute. In #act, ection -E o# ?A 9-BC itsel# e'plicitl% states that such e'ercise must compl% with the provisions o# the Constitution and pertinent laws.8 (;agcao v. ;abra, <( $55,76, $0.$3. 2007) 7trictl% spea4in$, the power o# eminent domain dele$ated to an 3&+ is in realit% not eminent but Oin,eriorO "om%in, since it must con#orm to the limits imposed b% the dele$ation, and thus parta4es onl% o# a share in eminent domain. Indeed, Wthe national le$islature is still the principal o# the local $overnment units, which cannot de#% its will or modi#% or violate it.8 (@aranaque v. 8# (ealt% Corp., <( $2,+20, 0,.20.*+) 7It is true that local $overnment units have no inherent power o# eminent domain and can e'ercise it onl% when e'pressl% authori>ed b% the le$islature. It is also true that in dele$atin$ the power to e'propriate, the le$islature ma% retain certain control or impose certain restraints on the e'ercise thereo# b% the local $overnments. 0hile such dele$ated power ma% be a limited authorit%, it is complete within its limits. )oreover, the limitations on the e'ercise o# the dele$ated power must be clearl% e'pressed, either in the law con#errin$ the power or in other le$islations. St%t$tes con,errin) t(e #o;er o, eminent "om%in to #olitic%l s$-"ivisions c%nnot -e -ro%"ene" or constricte" -* im#lic%tion.8 (@rovince of Camarines Sur v. C), 222 SC() $,3) Limit%tions on t(e 7>ercise o, t(e Po;er o, 7minent /om%in -* Loc%l ?overnment Units' -. !'ercised onl% b% the local chie# e'ecutive, actin$ pursuant to a valid ordinance5 .. Aor public use or purpose or wel#are, #or the bene#it o# the poor and the landless5 /. 2nl% a#ter a valid and de#inite o##er had been made to, and not accepted b%, the owner. I sweat, I bleed, I soar Service, Sacrifice, Excellence =D FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
It was held that the an$$unian$ :anlalawi$an cannot validl% disapprove the resolution o# the municipalit% e'propriatin$ a parcel o# land #or the establishment o# a $overnment center. The power o# eminent domain is e'plicitl% $ranted to the municipalit% under the 3ocal &overnment Code. 2II5 +%r &$estion &' The an$$unian$ Ba%an o# the )unicipalit% o# anta, Ilocos ur passed ?esolution "o. - authori>in$ its )a%or to initiate a petition #or the e'propriation o# a lot owned b% Christina as site #or its municipal sports center. This was approved b% the )a%or. @owever, the an$$unian$ :anlalawi$an o# Ilocos ur disapproved the ?esolution as there mi$ht still be other available lots in anta #or a sports center. "onetheless, the )unicipalit% o# anta, throu$h its )a%or, #iled a complaint #or eminent domain. Christina opposed this on the #ollowin$ $rounds, (a) the )unicipalit% o# anta has no power to e'propriate5 (b) ?esolution "o. - has been voided since the an$$unian$ :anlalawi$an disapproved it #or bein$ arbitrar%5 and (c) the )unicipalit% o# anta has other and better lots #or that purpose. ?esolve the case with reasons. S$))este" Ans;er, +nder ection -E o# ?.A. "o. 9-BC, the power o# eminent domain is e'plicitl% $ranted to the municipalit%, but must be e'ercised throu$h an ordinance rather than throu$h a resolution. ()unicipalit% o#:arana*ue v. ;.). ?ealt% Corp., &.?. "o. -.9D.C, Iul% .C, -EED) The an$$unian$ :anlalawi$an o# Ilocos ur was without the authorit% to disapprove ?esolution "o. - as the municipalit% clearl% has the power to e'ercise the ri$ht o# eminent domain and its an$$unian$ Ba%an the capacit% to promul$ate said resolution. The onl% $round upon which a provincial board ma% declare an% municipal resolution, ordinance or order invalid is when such resolution, ordinance or order is be%ond the powers con#erred upon the council or president ma4in$ the same. uch is not the situation in this case. ()oda% v. Court o# Appeals, &.?. "o. -C9E-B, Aebruar% .C, -EE9) The *uestion o# whether there is $enuine necessit% #or the e'propriation o# ChristinaPs lot or whether the municipalit% has other and better lots #or the purpose is a matter that will have to be resolved b% the Court upon presentation o# evidence b% the parties to the case. 5. 3ecl%ssi,ic%tion o, L%n"s A cit% or municipalit% ma%, throu$h an ordinance passed a#ter conductin$ public hearin$s #or the purpose, authori>e the reclassi#ication o# a$ricultural lands and provide #or the manner o# their utili>ation or disposition, -. 0hen the land ceases to be economicall% #easible and sound #or a$ricultural purposes as determined b% the Department o# A$riculture, or .. 0here the land shall have substantiall% $reater economic value #or residential, commercial or industrial purposes, as determined b% the san$$unian5 :rovided that such reclassi#ication shall be limited to the #ollowin$ percenta$e o# the total a$ricultural land area at the time o# the passa$e o# the ordinance, i. Aor hi$hl% urbani>ed cities and independent component cities, -<S ii. Aor component cities and - st to / rd class municipalities, -CS iii. Aor = th to B th municipalities, <S. :rovided that a$ricultural land distributed to land re#orm bene#iciaries shall not be a##ected b% such reclassi#ication. 6. Clos$re %n" O#enin) o, 3o%"s ?A 9-BC, ection .-. A local $overnment unit ma%, pursuant to an ordinance, permanentl% or temporaril% close or open an% local road, alle%, par4 or s*uare #allin$ within its (urisdiction, provided that in case o# permanent closure, such ordinance must be approved b% at least .G/ o# all the members o# the san$$unian, and when necessar%, an ade*uate substitute #or the public #acilit% shall be provided. A""ition%l limit%tions in c%se o, #erm%nent clos$re' -. Ade*uate provision #or the maintenance o# public sa#et% must be made5 .. The propert% ma% be used or conve%ed #or an% purpose #or which other real propert% ma% be law#ull% used or conve%ed, but no #reedom par4 shall be closed permanentl% without provision #or its trans#er or relocation to a new site. "ote, Temporar% closure ma% be made durin$ an actual emer$enc%, #iesta celebrations, public rallies, etc. C%ses' -. A municipalit% has the authorit% to prepare and adopt a land use map, promul$ate a >onin$ ordinance, and close an% municipal road. (:ilapil v. CA, .-B C?A //) 2. The closure o# = streets in Baclaran, :arana*ue was held invalid #or non-compliance with ))A 2rdinance "o. .. Aurther, provincial roads and cit% streets are propert% #or public use under Article =.=, Civil Code, hence under the absolute control o# Con$ress. The% are outside the commerce o# man, and cannot be disposed o# to private persons. ("ote, This case was decided under the ae$is o# the old 3ocal &overnment Code) ()acasiano v. Dio4no, .-. C?A =B=) /. 2ne whose propert% is not located on the closed section o# the street ordered closed b% the :rovincial Board o# Catanduanes has no ri$ht to compensation #or the closure i# he still has reasonable access to the $eneral s%stem o# streets. (Cabrera v. CA, -E< C?A /-=) =. The power to vacate is discretionar% on the an$$unian.''' when properties are no lon$er intended #or public use, the same ma% be used or conve%ed #or an% law#ul purpose, and ma% even become patrimonial and thus be the sub(ect o# common contract. (Cebu 2'%$en M Acet%lene Co. v. Berciles, BB C?A =D-) <. The Cit% Council has the authorit% to determine whether or not a certain street is still necessar% I sweat, I bleed, I soar Service, Sacrifice, Excellence =E FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
#or public use. (Aavis v. Cit% o# Ba$uio, .E C?A =<B) 6. The Cit% )a%or o# )anila cannot b% himsel#, withdraw :adre ?ada as a public mar4et. The establishment and maintenance o# public mar4ets is amon$ the le$islative powers o# the Cit% o# )anila5 hence, the need #or (oint action b% the an$$unian and the )a%or. . Loc%l Le)isl%tive Po;er (!'ercised b% the local san$$unian) %. Pro"$cts o, le)isl%tive %ction' 1. Odinan!e- prescribes a permanent rule o# conduct. 2. Resolution- o# temporar% character, or e'presses sentiment. -. 3e0$isites ,or v%li"it* -. )ust not contravene the Constitution and an% statute5 .. )ust not be un#air or oppressive5 /. )ust not be partial or discriminator%5 =. )ust not prohibit but ma% re$ulate trade5 <. )ust not be unreasonable5 B. )ust be $eneral in application and consistent with public polic%. c. A##rov%l o, Or"in%nces 2rdinances passed b% the san$$unian$ panlalawi$an, san$$unian$ panlun$sod, or san$$unian$ ba%an shall be approved, -. I# the local chie# e'ecutive approves the same, a##i'in$ his si$nature on each an ever% pa$e thereo#. 2. I# the local chie# e'ecutive vetoes the same, and the veto is overridden b% .G/ vote o# all the members o# the san$$unian. The local chie# e'ecutive ma% veto the ordinance, onl% once, on the $round that the ordinance is ultra vires, or that it is pre(udicial to the public wel#are. @e ma% veto an% particular item or items o# an appropriation ordinance, an ordinance or resolution adoptin$ a development plan and public investment pro$ram, or an ordinance directin$ the pa%ment o# mone% or creatin$ liabilit%. In such a case, the veto shall not a##ect the items or items which are not ob(ected to. The veto shall be communicated b% the local chie# e'ecutive to the san$$unian within -< da%s in case o# a province, or -C da%s in case o# a cit% or municipalit%5 otherwise, the ordinance shall be deemed approved as i# he si$ned it. In Delos (e%es v. Sandiganba%an, $**,, where petitioner was char$ed with #alsi#ication o# a public document #or approvin$ a resolution which purportedl% appropriate mone% to pa% #or the terminal leave o# . emplo%ees when actuall% no such resolution was passed, the petitioner ar$ued that his si$nature on the resolution was merel% ministerial. The C disa$reed, sa%in$ that the $rant o# the veto power accords the )a%or the discretion whether or not to disapprove the resolution. 7A s%n))$ni%n is % colle)i%l -o"*. 3e$islation, which is the principal #unction and dut% o# the san$$unian, re*uires the participation o# all its members so that the% ma% not onl% represent the interests o# their respective constituents but also help in the ma4in$ o# decisions b% votin$ upon ever% *uestion put upon the bod%. The acts o# onl% a part o# the an$$unian done outside the parameters o# the le$al provisions a#orementioned are le$all% in#irm, hi$hl% *uestionable and are, more importantl%, null and void. And all such acts cannot be $iven bindin$ #orce and e##ect #or the% are considered uno##icial acts done durin$ an unauthori>ed session.8 (Damora v. Caballero, <( $7,,6,, 0$.$7.2007) K"ote, 2rdinances enacted b% the san$$unian$ baran$a% shall, upon approval b% a ma(orit% o# all its members, be si$ned b% the punon$ baran$a%. The latter has no veto power.L ". 3evie; -* S%n))$ni%n) P%nl%l%;i)%n :rocedure, 0ithin / da%s a#ter approval, the secretar% o# the san$unian$ panlu$sod (in component cities) or san$$uninan$ ba%an shall #orward to the san$$unian$ pan$lalawi$an #or review copies o# approved ordinances and resolutions approvin$ the local development plans and public investment pro$rams #ormulated b% the local development councils. The sann$unian$ panlalawi$an shall review the same within /C da%s5 i# it #inds that the ordinance or resolution is be%ond the power con#erred upon the san$$unian$ panlus$sod or sa$$unian$ ba%an concerned, it shall declare such ordinance or resolution invalid in whole or in part. I# no action is ta4en within /C da%s, the ordinance or resolution is presumed consisted with law, valid. e. 3evie; o, +%r%n)%* Or"in%nces 0ithin -C da%s #rom enactment, the san$$unian$ baran$a% shall #urnish copies o# all baran$a% ordinances to the san$$unian$ panlun$sod or san$$unian$ ba%an #or review. I# the reviewin$ san$$unian #inds the baran$a% ordinances inconsistent with law or cit% or municipal ordinances, the san$$unian concerned shall, within /C da%s #orm receipt thereo#, return the same with its commentsand recommendations to the san$$unian$ baran$a% #or ad(ustment, amendment or modi#ication, in which case the e##ectivit% o# the ordinance is suspended until the revision I sweat, I bleed, I soar Service, Sacrifice, Excellence <C FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
called #or is e##ected. I# no action is ta4en b% the san$$unian$ panlun$sod or san$$unian$ ba%an within /C da%s, the ordinance is deemed approved. ,. 7n,orcement o, "is%##rove" or"in%nces. resol$tions An% attempt to en#orce an ordinance or resolution approvin$ the local development plan and public investment pro$ram, a#ter the disapproval thereo#, shall be su##icient $round #or the suspension or dismissal o# the o##icial or emplo%ee concerned. ). 7,,ectivit*. +nless otherwise stated in the ordinance or resolution, the same shall ta4e e##ect a#ter -C da%s #rom the date a cop% thereo# is posted in a bulletin board at the entrance o# the provincial capitol, or cit%, municipal or baran$a% hall, and in at least two other conspicuous places in the local $overnment unit concerned. i. The $ist o# all ordinances with penal sanction shall be published in a newspaper o# $eneral circulation within the province where the local le$islative bod% concerned belon$s. In the absence o# a newspaper o# $eneral circulation within the province, postin$ o# such ordinances shall be made in all municipalities and cities o# the province where the san$$unian o# ori$in is situated. ii. In the case o# hi$hl% urbani>ed and independent component cities, the main #eatures o# the ordinance or resolution dul% enacted shall, in additions to bein$ posted, be published once in a local newspaper o# $eneral circulation within the cit%5 o# there is no such newspaper within the cit%, then publication shall be made in an% newspaper o# $eneral circulation. (. Sco#e o, Loc%l L%; M%9in) A$t(orit* -. an$$unians e'ercise onl% dele$ated le$islative powers con#erred on them b% Con$ress. As mere a$ents, local $overnments are vested with the power o# subordinate le$islation. (#agta0as v. @r%ce, <( $$$0*,, 0,.20.*7) .. It is a #undamental principle that municipal ordinances are in#erior in status and subordinate to the laws o# the tate. An ordinance in con#lict with a state law o# $eneral character and statewide application is universall% held to be invalid. The principle is #re*uentl% e'pressed in the declaration that municipal authorities, under a $eneral $rant o# power, cannot adopt ordinances which in#rin$e upon the spirit o# a state law or repu$nant to the $eneral polic% o# the state. In ever% power to pass ordinances $iven to a municipalit%, there is an implied restriction that the ordinances shall be consistent with the $eneral law. (?atangas C)&8 v. Court of )ppeals, <( $3++$0, 0*.20.2007) /. The -EE- 3ocal &overnment Code provides that local le$islative power shall be e'ercised b% the san$$unian. The le$islative acts o# the san$$unian in the e'ercise o# its lawma4in$ authorit% are denominated ordinances. Aor an ordinance to be valid, it must not onl% be within the corporate powers o# the local $overnment concerned to enact but must also be passed accordin$ to the procedure prescribed b% law. (;agcao v. ;abra, <( $55,76, 3ctober $3, 2007) =. A proviso in an ordinance directin$ that the real propert% ta' be based on the actual amount re#lected in the deed o# conve%ance or the prevailin$ BI? >onal value is invalid not onl% because it mandates an e'clusive rule in determinin$ the #air mar4et value but more so because it departs #rom the established procedures stated in the 3ocal Assessment ?e$ulations "o. --E. and undul% inter#eres with the duties statutoril% placed upon the local assessor b% completel% dispensin$ with his anal%sis and discretion which the Code and the re$ulations re*uire to be e'ercised. Aurther, the charter does not $ive the local $overnment that authorit%. An ordinance that contravenes an% statute is ultra vires and void. ()llied ?anBing Corporation v. 2ue4on Cit%, <( $57$26, $0.$$.2005) 1666 +%r &$estion &' Iohnn% was emplo%ed as a driver b% the )unicipalit% o# Calumpit, Bulacan. 0hile drivin$ rec4lessl% a municipal dump truc4 with its load o# sand #or the repair o# municipal streets,Iohnn% hit a (eepne%. Two passen$ers o# the (eepne% were 4illed. The an$$unian$ Ba%an passed an ordinance appropriatin$ :/CC,CCC as compensation #or the heirs o# the victims. -) Is the municipalit% liable #or the ne$li$ence o# Iohnn%1 .) Is the municipal ordinance valid1 S$))este" Ans;er, .) The ordinance appropriatin$ :/CC,CCC.CC #or the heirs o# the victims o# Iohnn% is void. This amounts to appropriatin$ public #unds #or a private purpose. +nder ection //< o# the 3ocal &overnment Code, no public mone% shall be appropriated #or private purposes. I sweat, I bleed, I soar Service, Sacrifice, Excellence <- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Altern%tive Ans;er' +pon the #ore$oin$ considerations, the municipal ordinance is null and void #or bein$ ultra vires. The municipalit% not bein$ liable to pa% compensation to the heirs o# the victims, the ordinance is utterl% devoid o# le$al basis. It would in #act constitute an ille$al use or e'penditure o# public #unds which is a criminal o##ense. 0hat is more, the ordinance does not meet one o# the re*uisites #or validit% o# municipal ordinances, ie., that it must be in consonance with certain well-established and basic principles o# a substantive nature, to wit, Kit does not contravene the Constitution or the law, it is not un#air or oppressive. It is not partial or discriminator%. It is consistent with public polic%, and it is not unreasonable.L !. A$t(orit* Over Police Units As ma% be provided b% law. (ee ection B, Article X;I5 :": Act) C. Cor#or%te Po;ers 3ocal $overnment units shall en(o% #ull autonom% in the e'ercise o# their proprietar% #unctions and in the mana$ement o# their economic enterprises, sub(ect to limitations provided in the Code and other applicable laws. The corporate powers o# local $overnment units are, 9. To have continuous succession in its corporate name. D. To sue and be sued E. To have and use a corporate seal -C. To ac*uire and conve% real or personal propert% --. :ower to enter into contracts -.. To e'ercise such other powers as are $ranted to corporations, sub(ect to the limitations provided in the Code and other laws. 1. To (%ve contin$o$s s$ccession in its cor#or%te n%me 2. To s$e %n" -e s$e" The rule is that suit is commenced b% the local e'ecutive, upon the authorit% o# the an$$unian, e'cept when the Cit% Councilors themselves and as representatives o# or on behal# o# the Cit%, brin$ action to prevent unlaw#ul disbursement o# Cit% #unds. (Cit% Council o# Cebu v. Cuison, =9 C?A /.<) But the municipalit% cannot be represented b% a private attorne%. 2nl% the :rovincial Aiscal or the )unicipal Attorne% can represent a province or municipalit% in lawsuits. This is mandator%. The municipalit%Hs authorit% to emplo% a private law%er is limited to situations where the :rovincial Aiscal is dis*uali#ied to represent it, and the #act o# dis*uali#ication must appear on record. The AiscalHs re#usal to represent the municipalit% is not le$al (usti#ication #or emplo%in$ the services o# private counsel5 the municipalit% should re*uest the ecretar% o# Iustice to appoint an Actin$ :rovincial Aiscal in place o# the one declined to handle the case in court. ()unicipalit% o# :ililia ?i>al v. CA, .// C?A =D=) 3. To (%ve %n" $se % cor#or%te se%l 3&+s ma% continue usin$, modi#% or chan$e their corporate seal5 an% chan$e shall be re$istered with the DI3&. -/< 4. To %c0$ire %n" conve* re%l or #erson%l #ro#ert* a. The 3&+ ma% ac*uire tan$ible or intan$ible propert%, in an% manner allowed b% law, e.$., sale, donation, etc. b. The local $overnment unit ma% alienate onl% patrimonial propert%, upon proper authorit%. c. In the absence o# proo# that the propert% was ac*uired throu$h corporate or private #unds, the presumption is that it came #rom the tate upon the creation o# municipalit% and thus, is $overnmental or public propert%. (alas v. Iarencio, =D C?A 9/=) d. Town pla>as are properties o# public dominion5 the% ma% be occupied temporaril%, but onl% #or the duration o# an emer$enc% (!spiritu v. :an$asinan, -C. :hil DBB) e. A public pla>a is be%ond the commerce o# man, and cannot be the sub(ect o# the lease or other contractual underta4in$. And, even assumin$ the e'istence o# a valid lease o# the public pla>a or part thereo#, the municipal resolution e##ectivel% terminated the a$reement, #or it is settled that the police power cannot be surrendered or bar$ained awa% throu$h the medium o# a contract. (;illanueva v. Castaneda, -<= C?A -=.) #. :ublic streets or thorou$h#ares are propert% #or public use, outside the commerce o# man, and ma% not be the sub(ect o# lease or other contracts. (Dacana% v. Asistio, .CD C?A =C=) (. :rocurement o# supplies is made throu$h competitive public biddin$ K:D <.BL, e'cept when the amount is minimal (as prescribed in :D <.B) where a personal canvass o# at least three responsible merchants in the localit% ma% be made b% the Committee on Awards, or in case o# emer$enc% purchases allowed under :D <.B. -/B 5. Po;er to 7nter into Contr%cts 3e0$isites o, v%li" m$nici#%l contr%ct' 1. The local $overnment units has the e'press, implied or inherent power to enter into the particular contract. 13$ 0ntonio 3achura, -utline on Political a!, $76 (2006) 136 0ntonio 3achura, -utline on Political a!, $76 (2006) I sweat, I bleed, I soar Service, Sacrifice, Excellence <. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
.. The contract is entered in to b% the proper department, board, committee, o##icer or a$ent. +nless otherwise provided b% the Code, no contract ma% be entered into b% the local chie# e'ecutive on behal# o# the local $overnment unit without prior authori>ation b% the san$$unian concerned. /. The contract must compl% with certain substantive re*uirements, i.e., when e'penditure o# public #und is to be made, there must be an actual appropriation and a certi#icate o# availabilit% o# #unds. =. The contract must compl% with the #ormal re*uirements o# written contracts, e.$. the tatute o# Arauds. Ultr% Hires Contr%cts. 0hen a contract is entered into without the compliance with the - st and / rd re*uisites (above), the same is ultra vires and is null and void. uch contract cannot be rati#ied or validated. ?ati#ication o# de#ective municipal contracts is possible onl% when there is non- compliance with the second andGor the #ourth re*uirements above. ?ati#ication ma% either be e'press or implied. In 2ue4on Cit% v. ;e/ber, 200$, it was held that :D -==< does not provide that the absence o# appropriation ordinance ipso #act ma4es a contract entered into b% a local $overnment unit null and void. :ublic #unds ma% be disbursed not onl% pursuant to an appropriation law, but also in pursuance o# other speci#ic statutor% authorit%. (In this case, B: //9, the law which was then in #orce, empowered the )a%or to represent the cit% in its business transactions and si$n all warrants drawn on the cit% treasur% and all bonds, contracts and obli$ations o# the cit%. 0hile the )a%or has power to appropriate #unds to support the contracts, neither does B: //9 prohibit him #rom enterin$ into contracts unless and until #unds are appropriated there#or. B% enterin$ into the two contracts, )a%or imon did not usurp the cit% councilHs power to provide #or the proper disposal o# $arba$e and to appropriate #unds there#or. The e'ecution o# contracts to address such a need is his statutor% dut%, (ust as it is the cit% councilHs dut% to provide #or such service. There is no provision in the law that prohibits the cit% ma%or #orm enterin$ into contracts #or the public wel#are unless and until there is a prior authorit% #orm the cit% council.) Ot(er C%ses' 1. A contract o# lease $rantin$ #ishin$ privile$es is a valid and bindin$ contract and cannot be impaired b% a subse*uent resolution settin$ it aside and $ratin$ the privile$e to another. (+nless the subse*uent resolution is a police measure, because the e'ercise o# police power prevails over the non-impairment clause.) ()anantan v. 3a +nion, D. :hil D==) 2. A municipal >onin$ ordinance, as a police measure, prevails over the non-impairment clause. (2rti$as v. Aeati Ban4, E= C?A <//) 3. Breach o# contractual obli$ations b% the Cit% o# )anila renders the Cit% liable in dama$es. The principle o# respondeat superior applies. A$t(orit* to ne)oti%te %n" sec$re )r%nts. (?A 9-BC, ection ./) the local chie# e'ecutive ma%, upon authorit% o# the san$$unian, ne$otiate and secure #inancial $rants or donations in 4ind, in support o# the basic services and #acilities enumerated in ection -9, #rom local and #orei$n assistance a$encies without necessit% o# securin$ clearance or approval #orm and department a$enc%, or o##ice o# the national $overnment or #rom an% hi$her local $overnment unit5 :rovided, that pro(ects #inanced b% such $rants or assistance with national securit% implications shall be approved b% the national a$enc% concerned. 6. To e>ercise s$c( ot(er #o;ers %s %re )r%nte" to cor#or%tions s$-:ect to t(e limit%tions #rovi"e" in t(e Co"e %n" ot(er l%;s. H. M$nici#%l Li%-ilit* 3UL7' 3&+s and their o##icials are not e'empt #rom liabilit% #or death or in(ur% to persons or dama$e to propert% (?A 9-BC, ection .=) A. S#eci,ic Provisions o, L%; M%9in) L?Us Li%-le 1. Article 21!65 Civil Co"e' The 3ocal &overnment +nit is liable in dama$es or in(uries su##ered b% reason o# the de#ective condition o# roads, streets, brid$es, public buildin$s and other public wor4s. Cit$ of Manila %. Teoti!o, 22 SC() 26,- The Cit% o# )anila was held liable #or dama$es when a person #ell into an open manhole in the streets o# the cit%. -imene6 %. Cit$ of Manila, $50 SC() 5$0- Despite a mana$ement and operatin$ contract with Asiatic Inte$rated Corporation over the ta. Ana :ublic )ar4et, the Cit% o# )anila (because o# )a%or Ba$atsin$Hs admission that the Cit% still has control and supervision) is solidaril% liable #or in(uries sustained b% an individual who stepped on a rusted nail while the mar4et was #looded. &uilat!o %. Cit$ of Dagupan, $,$ SC() 3+2- 3iabilit% o# the Cit% #or in(uries due to de#ective roads attaches even i# the road does not belon$ to the local $overnment unit, as lon$ as the Cit% e'ercises control or supervision over said road. 2. Article 21!I D6 t( #%r.E Civil Co"e' The tate is responsible when it acts throu$h a special a$ent. 3. Article 345 Civil Co"e' The local $overnment unit is subsidiaril% liable #or dama$es su##ered b% a person b% reason o# the #ailure or re#usal o# a member o# the police I sweat, I bleed, I soar Service, Sacrifice, Excellence </ FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
#orce to render aid and protection in case o# dan$er to li#e and propert%. +. Li%-ilit* ,or Tort Despite the clear lan$ua$e o# ection .=, ?A 9-BC, that local $overnment units and their o##icials are not e'empt #orm liabilit% #or death or in(ur% to persons or dama$e to propert%, it is still unclear whether liabilit% will accrue when the local $overnment unit is en$a$ed in $overnmental #unctions. upreme Court decisions, interpretin$ le$al provisions e'istin$ prior to the e##ectivit% o# the 3ocal &overnment Code, have come up with the #ollowin$ rules on municipal liabilit% #or tort, -. I# the 3&+ is en$a$ed in $overnmental #unctions, it is not liable5 .. I# en$a$ed in proprietar% #unctions5 3&+ is liable. 1. I, t(e L?U is en)%)e" in )overnment%l ,$nctions5 it is not li%-le. i. The prosecution o# crimes is a $overnmental #unction, and thus, the local $overnment unit ma% not be held liable there#or. (:ala#o' v. :rovince o# Ilocos "orte, -C. :hil --DB) ii. In #unicipalit% of San Fernando v. Firme, $*5 SC() 6*2, the municipalit% was not held liable #or torts committed b% a re$ular emplo%ee, even i# the dump truc4 used belon$ to the municipalit%, inasmuch as the emplo%ee was dischar$in$ $overnmental (public wor4s) #unctions. iii. Deliver% o# sand and $ravel #or the construction o# municipal brid$e in the e'ercise o# the $overnmental capacit% o# local $overnments. The municipalit% is not liable #or in(uries that arise in the per#ormance o# $overnmental #unctions. (;a Gnion v. Firme,$*5 SC() 6*2) Note' Aor liabilit% to arise under Article .-DE o# the Civil Code, ownership o# the roads, streets, brid$es, public buildin$s and other public wor4s is not a controllin$ #actor, it bein$ su##icient that a province, cit% or municipalit% has control or supervision thereo#. 2n the other hand, a municipalit%Hs liabilit% under ection -=E o# the -ED/ 3ocal &overnment Code #or in(uries caused b% its #ailure to re$ulate the drillin$ and e'cavation o# the $round #or the la%in$ o# $as, water, sewer, and other pipes, attaches re$ardless o# whether the drillin$ or e'cavation is made on a national or municipal road, #or as lon$ as the same is within its territorial (urisdiction. (#unicipalit% of San :uan v. C), <( $2$*20, 0+.0*.2005) 2. I, en)%)e" in #ro#riet%r* ,$nctions5 L?U is li%-le i. 2peration o# a #err% service is a proprietar% #unction. The municipalit% is ne$li$ent and thus liable #or havin$ awarded the #ranchise to operate #err% service to another notwithstandin$ the previous $rant o# the #ranchise to the plainti##. ()endo>a v. De 3eon, // :hil <CD) ii. @oldin$ o# town #iesta is a proprietar% #unction. The )unicipalit% o# )alasi$ue, :an$asinan was held liable #or the death o# a member o# the >ar>uela $roup when the sta$e collapsed, under the principle of respondeat superior. K"ote, The )unicipal Council mana$ed the town #iesta. 0hile the municipalit% was held liable, the councilors themselves are not liable #or the ne$li$ence o# their emplo%ees or a$ents.L (Torio v. Aontanilla, D< C?A <EE) iii. The operation o# a public cemeter% is a proprietar% #unction o# the Cit% o# )anila. The Cit% is liable #or the tortuous acts o# its emplo%ees, under the principle of respondeat superior. i). )aintenance o# cemeteries is in the e'ercise o# the proprietar% nature o# local $overnments. The Cit% is liable #or breach o# a$reement. (Cit% of #anila v. 1)C, $,* SC() 72+) ). Lia#ilit$ fo illegal dismissal of an emplo$ee. It was held that inasmuch as there is no #indin$ that malice or bad #aith attended the ille$al dismissal and re#usal to reinstate respondent &entallan b% her superior o##icers, the latter cannot be held personall% accountable #or her bac4 salaries. The municipal $overnment there#ore, should disburse #unds to answer #or her claims (bac4 salaries and other monetar% bene#its #orm the time o# her ille$al dismissal up to her reinstatement) resultin$ #rom dismissal. In Cit% of Cebu v. :udge @iccio, $$0 @il 55+, it was held that a municipal corporation, whether or not included in the complaint #or recover% o# bac4 salaries due to wron$#ul removal #rom o##ice, is liable. )i. Lo!al offi!ials ma$ also #e "eld pesonall$ lia#le. Cit% of )ngeles v. C), 26$ SC() *0, where the cit% o##icials ordered the construction o# a dru$ rehabilitation center on the open space donate b% the subdivision owner in violation o# :D -.-B, the cost o# the demolition o# the dru$ rehabilitation center should be borne b% the cit o##icials who ordered the construction -ec%$se t(e* %cte" -e*on" t(e sco#e o, t(eir %$t(orit* %n" ;it( evi"ent -%" ,%it(. (@owever, since the cit% ma%or and the I sweat, I bleed, I soar Service, Sacrifice, Excellence <= FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
san$$unian members were sued in their o##icial capacit%, the% cannot be held personall% liable without $ivin$ them their da% in court.) (ama v. C), $7+ SC() 7*6, the :rovincial $overnor and the members o# the :rovincial Board where held liable in dama$es in their personal capacit% arisin$ #orm the ille$al act o# dismissin$ emplo%ees in bad #aith. 8(ere t(e* %ct m%licio$sl* %n" ;%ntonl* %n" in:$re in"ivi"$%ls r%t(er t(%n "isc(%r)e % #$-lic "$t*5 t(e* %re #erson%ll* li%-le. Correa v. CF1 ?ulacan, *2 SC() 3$2, the )a%or who, without (ust cause, ille$all% dismissed an emplo%ee, acted with $rave abuse o# authorit%, and he not the )unicipalit% o# "or>a$ara%, Bulacan, is personall% liable. This liabilit% attaches even i#, at the time o# e'ecution, he is no lon$er the )a%or. Salcedo v. C), +$ SC() 70+, the )a%or, #or his persistent de#iance o# the order o# the CC to reinstate the emplo%ee, was held personall% liable #or the pa%ment o# bac4 salaries. @ilar v. Sangguniang ?a%an of Dasol, $2+ SC() $,3, the )a%or was held liable #or e'emplar% and corrective dama$es #or vetoin$, without (ust cause, the resolution o# the an$$unian$ Ba%an appropriatin$ the salar% o# petitioner. .emen4o v. Sabillano, 25 SC() $, )a%or abillano was ad(ud$ed personall% liable #or pa%ment o# bac4 salaries o# a policeman who was ille$all% dismissed. The )a%or cannot hide behind the mantle o# his o##icial capacit% and pass the liabilit% to the )uncipalit% o# which he is )a%or. San ;uis v. C), $*+*, 3a$una &overnor an 3uis was held personall% liable #or moral dama$es #or re#usin$ to reinstate Berro%a, *uarr% superintendent, despite the rulin$ o# the CC as a##irmed b% the 2##ice o# the :resident. C. Li%-ilit* ,or Hiol%tion o, L%; 1. 0here the )unicipalit% closed a part o# a municipal street without indemni#%in$ the person pre(udiced thereb%, the )unicipalit% can be held liable #or dama$es. (Abella v, )unicipalit% o# "a$a, EC :hil /D<) 2. 3ac4 o# #unds does not e'cuse the )unicipalit% #rom pa%in$ the statutor% minimum wa$e o# :-.C a month to its emplo%ees. The pa%ment o# the minimum wa$e is a mandator% statutor% obli$ation o# the )unicipalit%. (?acho v. )unicipalit% o# Ila$an, Isabela) /. The )unicipalit% o# Bunawan, A$usan del ur, throu$h the )a%or was held in contempt and #ined :-,CCC.CC with a warnin$, because o# the re#usal o# the )a%or to abide b% a T?2 issued b% the Court. /. Li%-ilit* ,or Contr%cts 1. ?ule, A municipal corporation, li4e an ordinar% person, is liable on a contract it enters into, provided that the contract is intra vires (I# the contract is ultra vires, the municipal corporation is not liable.) .. A private individual who deals with a municipal corporation is imputed constructive 4nowled$e o# the e'tent o# the power or authorit% o# the municipal corporation to enter into contracts. 3. 2rdinaril%, there#ore, the doctrine o# estoppel does not lie a$ainst the municipal corporation. 4. The do!tine of implied muni!ipal lia#ilit$9 A municipalit% ma% become obli$ated upon an implied contact to pa% the reasonable value o# the bene#its accepted or appropriated b% it as to which it has the $eneral #o;er to contr%ct. (:rovince o# Cebu v. IAC, -=9 C?A ==9) The doctrine applies to all cases where mone% or other propert% o# a part% is received under such circumstances that the $eneral law, independent o# an e'press contract, implies an obli$ation to do (ustice with respect to the same. i. It was held that the :rovince o# Cebu cannot set up the plea that the contract was ultra vires and still retain bene#its thereunder.''' havin$ re$arded the contract as valid #or purposes o# reapin$ bene#its, the :rovince o# Cebu is estopped to *uestion its validit% #or the purpose o# den%in$ answerabilit%. (:rovince o# Cebu v. IAC, -=9 C?A ==9) ii. &' Does @rovince of Cebu v. 1)C, reverse De <uia v. )uditor <eneral where the upreme Court held that the en$a$ement o# the services o# Att%. De &uia b% the )unicipal Council o# )ondra$on, "orthern amar was ulra vires, because a municipalit% can en$a$e the services o# a private law%er onl% i# the :rovincial Aiscal is dis*uali#ied #rom appearin$ as counsel #or the municipalit%1 A' Apparentl% not, because in @rovince of Cebu v. 1)C, the :rovince could not possibl% en$a$e the le$al services o# the :rovincial Aiscal, the latter havin$ ta4en a position adverse to the interest o# the :rovince #or havin$ priorl% rendered an opinion that the donation was valid. iii. !stoppel cannot be applied a$ainst a municipal corporation in order to validate a contract which the municipal corporation has no power to ma4e or which it is authori>ed to ma4e onl% under prescribed limitations or in a prescribed mode or mannerTeven i# the municipal corporation has accepted bene#its therunder. In San Diego v. #unicipalit% of .au0an, the C re(ected I sweat, I bleed, I soar Service, Sacrifice, Excellence << FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
the doctrine o# estoppels, because to appl% the principle would enable the municipalit% to do indirectl% what it cannot do directl%. i). In #uncipalit% of @ililia (i4al v. C), where the C said that the municipalit% cannot be represented b% a private attorne%. 2nl% the :rovincial Aiscal or the )uncipal Attorne% can represent a province o# municipalit% in lawsuits. This is mandator%. The municipalit%Hs authorit% to emplo% a private law%er is limited to situations where the :rovincial Aiscal is dis*uali#ied to represent it, and the #act o# dis*uali#ication must appear on record. The AiscalHs re#usal to represent the municipalit% is not a le$al (usti#ication #or emplo%in$ the services o# private counsel5 the municipalit% should re*uest the ecretar% o# Iustice to appoint an Actin$ :rovincial Aiscals in place o# the one who declines to handle the case in court. v. But i# the suit is #iled a$ainst a local o##icial which could result in personal liabilit% o# the said public o##icial, the latter ma% en$a$e the services o# private counsel. ()ancenido v. CA, .CCC) HI. Loc%l O,,ici%ls A. N%t$re o, O,,ice DA)r% NotesE 1. A local chie# e'ecutive is considered an accountable public o##icer as de#ined under the ?evised :enal Code since heG she, in the dischar$e o# hisG her o##ice, receives mone% or propert% o# the $overnment which heG she is dut% bound to account #or. Thus, a local chie# e'ecutive is $uilt% o# malversation upon #indin$ that heG she received public #unds and was unable to satis#actoril% account #or the same. (&anggote v. Sandiganba%an, <( $035+7, 0*.02.*7) 2. A local chie# e'ecutive is mandated to abide b% Article I o# ection ===(b)(') o# -EE- 3ocal &overnment Code which directs e'ecutive o##icials and emplo%ees o# the municipalit% to #aith#ull% dischar$e their duties and #unctions as provided b% law. (8elasco v. Sandiganba%an, <( $60**$, 02.2+.2005) 3. The -ED9 Constitution provides that no elective o##icial shall be eli$ible #or appointment or desi$nation in an% capacit% to an% other public o##ice or position durin$ hisG her tenure in order that the% ma% serve #ull-time with dedication. Thus, a local chie# e'ecutive cannot be appointed as chairperson o# the ubic Ba% )etropolitan Authorit% since such o##ice is not an e/ officio post or attached to the o##ice o# the local chie# e'ecutive. (Flores v. Drilon, <( $07,32, 06.22.*3) 4. The municipal ma%or, bein$ the appointin$ authorit%, is the real part% in interest to challen$e the Civil ervice CommissionPs disapproval o# the appointment o# hisG her appointee. The CCPs disapproval o# an appointment is a challen$e to the e'ercise o# the appointin$ authorit%Ps discretion. The appointin$ authorit% must have the ri$ht to contest the disapproval. (Dagadag v. &ongna"a, <( $6$$66'6,, 02.03.2005) $. The municipal ma%or, not the municipalit% alone must be impleaded in a petition assailin$ the dismissal o# an emplo%ee whom heGshe appointed even i# the ma%or acted in hisGher o##icial capacit% when he dismissed the respondent. I# not impleaded, heGshe cannot be compelled to abide b% and compl% with its decision, as the same would not be bindin$ on himGher. (Civil Service Commission v. Sebastian, <( $6$,33, $0.$$.2005) 6. A proclaimed candidate who was later on dis*uali#ied has no le$al personalit% to institute an action see4in$ to nulli#% a decision o# the Civil ervice Commission concernin$ the dismissal o# municipal emplo%ees since heG she is not a real part% in interest. (#iranda v. Carreon, <( $73570, 07.$$.2003) 7. The cit% treasurer is the proper disciplinin$ authorit% in the case o# a local revenue o##icer, the #ormer bein$ the head o# a$enc%. (<arcia v. @a0aro, <( $7$$**, 0,.05.2002) ". A punon$ baran$a% cannot terminate the services o# the baran$a% treasurer and secretar% without the concurrence o# san$$unian$ baran$a% since this is e'plicitl% re*uired under ection /DE o# the -EE- 3ocal &overnment Code. ()lqui4ola v. 3col, <( $327$3, 0+.2,.**) +. Provisions A##lic%-le to 7lective %n" A##ointive Loc%l O,,ici%ls Po"i#ited ,usiness and Pe!unia$ Inteest (?A 9-BC, ection DE), It shall be unlaw#ul #or an% local $overnment o##icial or emplo%ee, directl% or indirectl% to, -. !n$a$e in an% business transaction with the local $overnment unit in which he is an o##icial or emplo%ee or over which he has the power o# supervision, or with an% o# its authori>ed boards, o##icials, a$ents or attorne%s, whereb% mone% is to be paid, or propert% or an% other thin$ o# value is to be trans#erred, directl% or indirectl%, out o# the I sweat, I bleed, I soar Service, Sacrifice, Excellence <B FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
resources o# the local $overnment unit to such person or #irm5 .. @old such interests in an% coc4pit or other $ames licensed b% the local $overnment unit5 /. :urchase an% real estate or other propert% #or#eited in #avor o# the local $overnment unit #or unpaid ta'es or assessment, or b% virtue o# a le$al process at the instance o# the local $overnment unit5 =. Be a suret% o# an% person contractin$ or doin$ business with the local $overnment unit #or which a suret% is re*uired5 and <. :ossess or use an% public propert% o# the local $overnment unit #or private purposes. B. The prohibitions and inhibitions prescribed in ?A B9-/ also appl%. Pr%ctice o, Pro,ession (ection EC, ?A 9-BC) -. All $overnors, cit% and municipal ma%ors are prohibited #orm practicin$ their pro#ession or en$a$in$ in an% occupation other than the e'ercise o# their #unction as local chie# e'ecutives. .. an$$unian members ma% practice their pro#ession, en$a$e in an% occupation, or teach in schools e'cept durin$ session hours, :rovided, that those who are also members o# the Bar shall not (i) appear as counsel be#ore an% court in an% civil case wherein the local $overnment unit or an% o##ice, a$enc% or instrumentalit% o# the $overnment is the adverse part%5 (ii) appear as counsel in an% criminal case wherein an o##icer or emplo%ee o# the national or local $overnment is accused o# an o##ense committed in relation to his o##ice5 (iii) collect an% #ee #or their appearance in administrative proceedin$s involvin$ the 3&+ o# which he is an o##icial5 and (iv) use propert% and personnel o# the $overnment e'cept when the san$$unian member concerned is de#endin$ the interest o# the $overnment. It was held that b% appearin$ as counsel #or dismissed emplo%ees, Cit% Councilor Iavellana violated the prohibition a$ainst en$a$in$ in private practice i# such practice represents interests adverse to the $overnment. (Iavellana v. DI3&, .-. C?A =9<) /. Doctors o# medicine ma% practice their pro#ession even durin$ o##icial hours o# wor4 onl% on occasion o# emer$enc%, provided the% do not derive monetar% compensation there#rom. It was held that DI3& )emorandum Circular "o. EC-D- does not discriminate a$ainst law%ers and doctors5 it applies to all provincial and municipal o##icials. (Iavellana v. DI3&, .-. C?A =9<) Pro(i-ition A)%inst A##ointment (?A 9-BC, ection E=) -. "o elective or appointive local o##icial shall be eli$ible #or appointment or desi$nation in an% capacit% to an% public o##ice or position durin$ his tenure. +nless otherwise allowed b% law or b% the primar% #unctions o# his o##ice, no local o##icial shall hold an% other o##ice or emplo%ment in the $overnment or an% subdivision, a$enc% or instrumentalit% thereo#, includin$ &2CCs or their subsidiaries. (?elate this to ection 9, Article IX-B) .. !'cept #or losin$ candidates in baran$a% election, no candidate who lost in an% election shall, within one %ear a#ter such election, be appointed to an% o##ice in the $overnment o# &2CC or their subsidiaries. (?elate this to ection B, Article IX-B) C. 7lective Loc%l O,,ici%ls 2ualifications Disqualifications #anner of Clection Date of Clection &erm of 3ffice (ules of Succession Compensation (ecall (esignation <rievance @rocedure Discipline Cases on 3ffenses ()gra .otes) Cases on @rocedure ()gra .otes) Complaints @reventive Suspension @enalt% ()gra .otes) )dministrative )ppeal C/ecution @ending )ppeal :urisdiction of Sandiganba%an ()gra .otes) Cffect of (e'election 1. &$%li,ic%tions (?A 9-BC, ection /E) -. Citi>en o# the :hilippines5 .. ?e$istered ;oter in the baran$a%, municipalit%, cit% or province, or in the case o# a member o# the san$$unian$ panlalawi$an, panlun$sod or ba%an, the district where he intends to be elected5 /. A resident therein #or at least - %ear immediatel% precedin$ the electionH =. Able to read and write Ailipino or an% other local lan$ua$e or dialect5 <. 2n the election da%, must be at least ./ %ears o# a$e K#or $overnor, vice-$overnor, member o# the san$$unian$ panlalawi$an, ma%or, vice ma%or, or member o# the ssan$$unian$ panlun$sd o# hi$hl% urbani>ed citiesL5 .- %ears o# a$e K#or ma%or or vice ma%or o# independent component cities, component cities, or munciplaitiesL5 -D %ears o# a$e K#or member o# the san$$unian$ panlun$sod or sa$$unian$ ba%an, or punon$ I sweat, I bleed, I soar Service, Sacrifice, Excellence <9 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
baran$a% or member o# the san$$unian$ baran$a%L, or at least -< but not more than .- %ears o# a$e Kcandidates #or the san$$unian$ 4abataanL i. The 3&C does not speci#% an% particular date when the candidate must posses Ailipino citi>enship. :hilippine citi>enship is re*uired to ensure that no alien shall $overn our people. An o##icial be$ins to $overn onl% upon his proclamation and on the da% that his term be$ins. ince Arivaldo too4 his oath o# alle$iance the da% that his term be$ins. ince Arivaldo too4 his oath o# alle$iance on Iune /C, -EE<, when his application #or repatriation was $ranted b% the epcial Committee on "aturali>ation created under :D D.<, he was there#ore *uali#ied to be proclaimed. Besides, ection /C o# the 3&C spea4s o# *uali#ications o# elective o##icials, not o# candidates. Aurthermore, repatriation retroacts to the date o# the #ilin$ o# his application on Au$ust -9, -EE=. (Arivaldo v. C2)!3!C, .<9 C?A 9.9) ii. In )lta0eros v. C3#C;CC, 2007, the petitioner too4 his oath o# alle$iance on December -9, -EE9, but his Certi#icate o# ?epatriation was re$istered with the Civil ?e$istr% o# )a4ati Cit% onl% a#ter B %ears, or on Aebruar% -D, .CC=, and with the Bureau o# Immi$ration on )arch -, .CC=, thus completin$ the re*uirements #or repatriation onl% a#ter he #iled his certi#icate o# candidac%, but be#ore the election. 2n the issue o# whether he was *uali#ied to run #or )a%or o# an Iacinto, )asabate, the Court applied the rulin$ in Frivaldo, that repatriation retroacts to the date o# #ilin$ o# the application #or repatriation. :etitioner was, there#ore, *uali#ied to run #or )a%or. iii. :etitioner who was over .- %ears o# a$e on the da% o# the election was ordered dis*uali#ied b% the C when the latter re(ected the contention o# the petitioner that she was *uali#ied because she was less than .. %ears old. The phrase 7not more than .- %ears old8 is not e*uivalent to 7less than .. %ears old.8 (&arvida v. ales, .9- C?A 9B9) 2. /is0$%li,ic%tions (?A 9-BC, ection =C) The #ollowin$ are dis*uali#ied #rom runnin$ #or an% elective local position, -. Those sentenced b% #inal (ud$ment #or an o##ense involvin$ moral turpitude or #or an o##ense punishable b% one %ear or more o# imprisonment, within two %ears a#ter servin$ sentence5 .. Those removed #rom o##ice as a result o# an administrative case5 /. Those convicted b% #inal (ud$ment #or violatin$ the oath o# alle$iance to the ?epublic. 4. Those with dual citi>enship -/9 5 <. Au$itives #rom (ustice in criminal or non- political cases here or abroad5 B. :ermanent residents in a #orei$n countr% or those who have ac*uired the ri$ht to reside abroad and continue to avail o# the same ri$ht a#ter the e##ectivit% o# the Code5 9. The insane or #eeble-minded. i. ;iolation o# the Anti-Aencin$ 3aw involves moral turpitude, and the onl% le$al e##ect o# probation is to suspend the implementation o# the sentence. Thus, the dis*uali#ication still subsists. (De la Torre v. C2)!3!C, .<D C?A =D/) 3i4ewise, violation o# B: .. is a crime involvin$ moral turpitude, because the accused 4nows at the time o# the issuance o# the chec4 that he does not have su##icient #unds in , or credit with, the drawee ban4 #or pa%ment o# the chec4 in #ull upon presentment. (;illaber v. C2)!3!C, .CC-) ii. Article 9/ o# the ?ules Implementin$ ?A 9-BC, to the e'tent that it con#ines the term 7,$)itive ,rom :$stice8 to re#er onl% to a person 7who has been convicted b% #inal (ud$ment8 is an inordinate an undue circumscription o# the law. The term includes not onl% those who #lee a#ter conviction to avoid punishment, but li4ewise those who, a#ter bein$ char$ed, #lee to avoid prosecution8. In (odrigue4 v. C3#C;CC, 25* SC() 2*6, it was held that ?odriue> cannot be considered a 7#u$itive #rom (ustice8, because his arrival in the :hilippines #orm the + preceded b% at least #ive months the #ilin$ o# the #elon% complaint in the 3os An$eles Court and the issuance o# the warrant #or his arrest b% the same #orei$n court. iii. ection =C, ?A 9-BC, cannot appl% retroactivel%. Thus, an elective local o##icial who was removed #rom o##ice as a result o# an administrative case prior to Ianuar% -, -EE. (date o# 3&CHs e##ectivit%) is not dis*uali#ied #orm runnin$ #or elective local o##ice (&re$o v. C2)!3!C In (e%es v. C3#C;CC, 257 SC() 5$7, the C ruled that the petitioner, a )unicipal )a%or who had been ordered removed #rom o##ice b% the an$$unian :anlalawi$an, was dis*uali#ied, even as he alle$ed that the decision was not %et #inal because he had not %et received a cop% o# the decision. It was shown, however, that he merel% re#use to accept deliver% o# the cop% o# the decision. i). In #ercado v. #an4ano, 30, SC() 630, the C clari#ied the 7dual citi>enship8 dis*uali#ication, and reconciled the same with ection <, Article I; o# the C2nsitution on 7dual alle$iance8. ?eco$ni>in$ situation in which a Ailipino 137 %nterpreted in the case o, &ercado ). &anzano, 307 +C20 630). I sweat, I bleed, I soar Service, Sacrifice, Excellence <D FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
citi>en ma%, without per#ormin$ an% act and as an involuntar% conse*uence o# the con#lictin$ laws o# di##erent countries, be also a citi>en o# another tate, the Court e'plained that 7dual citi>enship8, as a dis*uali#ication, must re#er to citi>ens with 7dual alle$iance8. Conse*uentl%, persons with mere dual citi>enship do not #all under the dis*uali#ication. 3. M%nner o, 7lection (?A 9-BC, ection =-) 1. The $overnor, vice-$overnor, cit% or municipal ma%or, cit% or municipal vice- ma%or and punon$ baran$a% shall be electe" %t l%r)e in their respective units. The san$$unian$ 4abataan chairman shall be elected b% the re$istered voters o# the 4atipunan n$ 4abataan. 2. The re$ular members o# the san$$unian$ panlalawi$an, panlun$sod and ba%an shall be elected b% district as ma% be provided b% law. The presidents o# the lea$ues o# san$$unian members o# component cities and municipalities shall serve as e/ officio members o# the san##unian$ panlalawi$an concerned. The presidents o# the li$a n$ m$a baran$a% and the pederas%on n$ m$a san$$unian$ 4abataan elected b% their respective chapters, shall serve e/ officio members o# the san$$unian$ panlalawi$an, panlun$sod or ba%an. Article X5 Section 6. 3e$islative bodies o# local $overnments shall have sectoral representation as ma% be prescribed b% law. /. In addition, there shall be one sectoral representative #rom the women, one #rom the wor4ers, and one #rom an% o# the #ollowin$ sectors, urban poor, indi$enous cultural communities, disabled persons, or an% other sector as ma% be determined b% san$$unian concerned within EC da%s prior to the holdin$ o# the ne't local elections as ma% be provided b% law. The Comelec shall promul$ate the rules and re$ulations to e##ectivel% provide #or the election o# such sectoral representatives. 4. /%te o, 7lection !ver% three %ears on the second )onda% o# )a%, unless otherwise provided b% law. 5. Term o, O,,ice Three %ears, startin$ #rom noon o# Iune /C, -EE., or such date as ma% be provided b% law, e'cept that o# elective baran$a% o##icials. "o local elective o##icial shall serve #or more than three consecutive terms in the same position. The term o# o##ice o# baran$a% o##icials and members o# the san$$unian$ 4abataan shall be #or #ive (<) %ears, which shall be$in a#ter the re$ular election o# baran$a% o##icials on the second )onda% o# )a%, -EE9. (?A D<.=) Article X5 Section !. The term o# o##ice o# elective local o##icials, e'cept baran$a% o##icials, which shall be determined b% law, shall be three %ears and no such o##icial shall serve #or more than three consecutive terms. ;oluntar% renunciation o# the o##ice #or an% len$th o# time shall not be considered as an interruption in the continuit% o# his service #or the #ull term #or which he was elected. &' Due to incumbent ma%orHs death, the vice-ma%or succeeds to the o##ice o# ma%or b% operation o# law and serves the remainder o# the ma%orHs term. Is he considered to have served a term in that o##ice #or the purpose o# the three-term limit1 A' "o. ection o# Article X embodies two policies, vi>., (-)to prevent political d%nasties and (.) to enhance the #reedom o# choice o# the people. T(e term limit o, elective o,,ici%ls m$st -e t%9en to re,er to t(e ri)(t to -e electe" %s ;ell %s t(e ri)(t to serve in t(e s%me elective #osition. Conse*uentl%, it is not enou$h that an individual served three consecutive terms in an elective local o##ice, he must also been elected to the same position #or the same number o# times be#ore the dis*uali#ication can appl%. $3+ &' 0hen will the three-limit o# local elective o##icials- e'cept baran$a% o##icials- appl%1 A' 2nl% when these two conditions concur, 1. The local o##icial concerned has been electe" three consecutive times5 and 2. @e has #ull% serve" three consecutive terms. (Bor(a v. C2)!3!C, -EED) SC "evise" scen%rios to e>#l%in t(e %##lic%tion o, Article X5 Section ! in ,o1a %. COMELEC9 &' uppose A is a vice-ma%or who becomes ma%or b% reason o# the death o# the incumbent. i' months be#ore the ne't election, he resi$ns and is twice elected therea#ter. Can he run a$ain #or ma%or in the ne't election1 A' Jes, because althou$h he has alread% #irst served as ma%or b% succession and subse*uentl% resi$ned #rom o##ice be#ore the #ull term e'pired, he has not actuall% served there #ull terms in all #or the purpose o# appl%in$ the term limit. +nder Art. X, ection D, voluntar% renunciation o# o##ice is not considered as an interruption in the continuit% o# his service #or the #ull term onl% i# the term is one 7#or which he was elected.8 ince A is onl% completin$ the service o# the term #or which the deceased and not he was elected, A cannot be considered to have completed one term. @is resi$nation constitutes an interruption o# the #ull term. (Bor(a v. C2)!3!C, -EED) &' uppose B is elected ma%or and, durin$ his term, he is twice suspended #or misconduct #or a total o# - %ear. I# he is twice re-elected a#ter that, can he run #or one more term in the ne't election1 A' Jes, because he has served onl% two-#ull terms successivel%. (Bor(a v. C2)!3!C, -EED) +ern%s' 1t is submitted tat tis is not correct. Suspension does not interrupt is term nor in fact is tenure because te 13" Bor?a ). C-&..C, 1##" I sweat, I bleed, I soar Service, Sacrifice, Excellence <E FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
office still belongs to im during suspension. #oreover, te CourtEs solution re"ards "rong doing. &' The case o# vice-ma%or C who becomes ma%or b% succession involves a total #ailure o# the two conditions to concur #or the purpose o# appl%in$ Article X, ection D. uppose he is twice elected a#ter that term, is he *uali#ied to run a$ain in the ne't election1 A' Jes, because he was not elected to the o##ice o# the ma%or in the #irst terms but simpl% #ound himsel# thrust into it b% operation o# law. "either had he served the #ull term because he onl% continued the service, interrupted b% the death, o# the deceased ma%or. C$rrent 3$les on Term Limits' -. 3on>anida was elected )a%or to a third term. @is election was challen$ed, however, and he lost and had to abandon his o##ice. @e could still run in the ne't election %ear because he did not serve three #ull terms. -/E .. Tala$a lost when he ran #or a third term. The winner, however, lost to him in a recall election and he served the rest o# the #ormer winnerHs term. At the end o# this term he could run a$ain because he had not served three #ull terms. -=C /. @a$edorn served as )a%or #or three #ull terms. In the #irst %ear a#ter the end o# his third term, he ran in a recall election. Fuali#ied1 Jes, because between the end o# his third term and the recall election there was an interruption thus brea4in$ the successiveness. -=- =. Durin$ the third term o# a )a%or o# a municipalit%, the municipalit% was converted to a cit%. The )a%or was allowed to #inish the third term. Could he run as )a%or o# the cit% in the ne't election1 "o. There has been no chan$e in territor% nor in constituenc%. Thus the three term limit applies. -=. <. 0hen a municipal councilor assumed the o##ice o# ;ice-)a%or respondentHs assumption o# o##ice as vice- ma%or in Ianuar% .CC= b% operation o# law, it was an involuntar% severance #rom his o##ice as municipal councilor resultin$ in an interruption in the service o# his .CC--.CC= term. @e did not serve the #ull .CC-- .CC= term. -=/ B. A#ter servin$ a #ull three %ear term, Ale$re was declared to have been invalidl% elected. hould that term be counted #or purposes o# the three term limit1 Jes. The decision declarin$ him not elected is o# no practical conse*uence because he has alread% served. -== &' ?A 9-BC, ection =/-c limits the term o# o##ice o# baran$a% o##icial to three %ears. :etitioners ar$ue that ection D, Article X 7b% e'ceptin$ baran$a% o##icials whose Qterms shall be determined lawH #rom the $eneral provision #i'in$ the term o# Qelective local o##icialsH at three %ears,8 impliedl% prohibits Con$ress #orm le$islatin$ a three-%ear term #or such o##icers. Thus, ection =/-C o# ?A 9-BC is unconstitutional. Decide. 13# onzanida v Comelec, :.2. 3o. 13$1$0. 5ul* 2", 1###. 140 Adormeo v Comelec, :.2. 3o. 147#27. Ae'ruar* 4, 2002. 141 Socrates v Comelec, :.2. 3o. 1$4$12. 3o)em'er 12, 2002. 142 atasa v. Comelec. :.2. 3o. 1$4"2#. <ecem'er 10, 2003. 143 Monte&on v COM""C, :.2. 3o. 1"0444, 0pril ", 200". 144 -n( ). 0le(re, :.2. 3o. 1632#$, 5anuar* 23, 20066 2i)era %%% ). &orales, :2 167$#1, &a* #, 2007. A' The Constitution did not e'pressl% prohibit Con$ress #rom #i'in$ an% term o# o##ice o# baran$a% o##icials. (David v. C2)!3!C, -EE9) &' @ow lon$ then is the term o# baran$a% o##icials1 A' As ma% be determined b% law. And the 3ocal &overnment Code, ection =/-c limits their term to three %ears. 2II6 +%r &$estion. La2 fi7ing t"e tems of lo!al ele!ti%e offi!ials. &'tate whether or not the law is constitutional. !'plain brie#l%. 7A law #i'in$ the terms o# local elective o##icials, other than baran$a% o##icials, to B %ears.8 S$))este" Ans;er, The law is invalid. +nder Article X, ection D o# the -ED9 Constitution, Wthe term o# o##ice o# elective local o##icials, e'cept baran$a% o##icials, which shall be determined b% law, shall be three %ears and no such o##icial shall serve #or more than three consecutive terms.W The law clearl% $oes a$ainst the a#oresaid constitutional re*uirement o# three %ear terms #or local o##icials e'cept #or baran$a% o##icials. 6. 3$les o, S$ccession (?A 9-BC, ections ===- =B) Perm%nent H%c%nciesA A permanent vacanc% arises when an elective local o##icials #ills hi$her vacant o##ice, re#uses to assume o##ice, #ails to *uali#%, dies, is removed #rom o##ice, voluntaril% resi$ns, or is permanentl% incapacitated to dischar$e the #unctions o# his o##ice. I# a permanent vacanc% occurs in the o##ice o#, -. &overnor or ma%or, the vice-$overnor or vice-ma%or concerned shall become the $overnor or ma%or. 2. ;ice-$overnor or vice-ma%or, the hi$hest ran4in$ san$$unian member or, in case o# permanent inabilit%, the second hi$hest ran4in$ san$$unian member, and subse*uent vacancies shall be #illed automaticall% b% the other san$$unian members accordin$ to their ran4in$. ?an4in$ in the san$$unian shall be determined on the basis o# the proportion o# votes obtained b% each winnin$ candidate to the total number o# re$istered voters in each district in the immediatel% precedin$ election. a) In 8ictoria v. Comelec, 22* SH() 26*, the C re(ected the contention that this provision be interpreted b% #actorin$ the number o# the voters who actuall% voted, because the law is clear and must be appliedT and the courts ma% not speculate as the probable intent o# the le$islature apart #orm the words used in the law. ') In #en4on v. @etilla, $*, SC() 25$, it was held that this mode o# succession #or permanent vacancies ma% also be observed in the case o# temporar% vacancies in the same o##ice. I sweat, I bleed, I soar Service, Sacrifice, Excellence BC FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
/. :unon$ baran$a%, the hi$hest- ran4in$ san$$unian baran$a% member, or in case o# his permanent inabilit%, the second hi$hest ran4in$ baran$a% member. K"ote, A tie between or amon$ the hi$hest ran4in$ san$$unian members shall be resolved b% drawin$ o# lots.L 4. an$$unian$ member, where automatic succession provided above do not appl%, #illed b% appointment b% the :resident, throu$h the !'ecutive ecretar% in the case o# the an$$unian :anlalawi$an or san$$unian panlun$sod o# hi$hl% urbani>ed cities and independent component cities5 b% the &overnor in the case o# the san$$unian$ panlun$sod o# component cities and san$$unian$ ba%an5 and b% the cit% or municipalit% ma%or in the case o# san$$unian$ baran$a% upon recommendation o# the san$$unian$ baran$a% concerned. @owever, e'cept #or the san$$unian$ baran$a%, onl% the nominee o# the political part% under which the san$$unian member concerned had been elected and whose elevation to the position ne't hi$her in ran4 created the last vacanc% in the san$$unian shall be appointed. A nomination and a certi#icate o# membership o# the appointee #rom the hi$hest o##icial o# the political part% concerned are conditions sine *ua non, and an% appointment without such nomination and certi#icate shall be null and void and shall be a $round #or administrative action a$ainst the o##icial concerned. In case the permanent vacanc% is caused b% a san$$unian$ member who does not belon$ to an% political part%, the local chie# e'ecutive shall upon the recommendation o# the san$$unian concerned, appoint a *uali#ied person to #ill the vacanc%. a) The reason behind the ri$ht $iven to a political part% to nominate a replacement when a permanent vacanc% occurs in the an$$unian is to maintain the part% representation as willed b% the people in the election. (In this case, with the elevation o# Tama%o, who belon$ed to (eforma';# to the position o# ;ice )a%or, a vacanc% occurred in the an$$uninan that should be #illed up with someone who belon$s to the political part% o# Tama%o. 2therwise, (eforma';#Es representation in the an$$unian would be diminished. To ar$ue that the vacanc% created was that #ormerl%held b% the D th an$$unian member, a ;aBas' .GCD'9ampi member, would result in the increase in that part%Hs representation in the an$$unian at the e'pense o# (eforma';#. ("avarro v. CA, .CC-) b) The appointment to an% vacanc% caused b% the cessation #rom o##ice o# a member o# the san$$unian$ baran$a% must be made b% the ma%or upon the recommendation o# the san$$unian. The recommendation b% the san$$unian ta4es the place o# nomination b% the political part% (since members o# the san$$unian$ baran$a% are prohibited to have part% a##iliations) and is considered as a condition sine *ua non #or the validit% o# the appointment. In Farinas v. ?arba, 256 SC() 3*6, where vacanc% to be #illed was that o# a member o# the an$$unian$ Ba%an who did not belon$ to an% political part%, the C held that neither the petitioner nor the respondent was validl% appointed. "ot the petitioner, because althou$h he was appointed b% the &overnor, he was not recommended b% the an$$unian Ba%an. "either the respondent, because althou$h he was recommended b% the an$$unian Ba%an, he was not appointed b% the &overnor. <. ;acanc% in the representation o# the %outh and the baran$a% in the san$$unian, #illed automaticall% b% the o##icial ne't in ran4 o# the or$ani>ation concerned. In <arvida v. Sales, .9- C?A 9B9, the C pointed out that under the 3&C, the member o# the an$$unian$ Nabataan who obtained the ne't hi$hest number o# votes shall succeed the Chairman i# the latter re#uses to assume o##ice, #ails to *uali#%, is convicted o# a crime, voluntar% resi$ns, dies is permanentl% incapacitated, is removed #rom o##ice, or has been absent without leave #or more than three consecutive months. Ineli$ibilit% is not one o# causes enumerated in the 3ocal &overnment Code. Thus, to avoid hiatus in the o##ice o# the Chairman, the vacanc% should be #illed b% the members o# the an$$unian$ Nabataan chosen b% the incumbent N members b% simple ma(orit% #rom amon$ themselves. Ot(er C%ses on 1S$ccession2 1. ;ice-$overnor actin$ as $overnor cannot continue to preside over san$$unian$ panlalawi$an sessions while actin$ as such. (<amboa v. )guirre, <( $372$3, 0,.20.**) 2. +nder ection ===(b)(-)('iv) o# the -EE- 3ocal &overnment Code,
applications #or leave o# municipal o##icials and emplo%ees appointed b% the )a%or shall be acted upon b% himGher, not b% the Actin$ ;ice-)a%or. (Civil Service Commission v. Sebastian, <( $6$,33, $0.$$.2005) 3. In case o# vacanc% in the an$$unian$ Ba%an, the nominee o# the part% under which the member concerned was elected and whose elevation to the hi$her position created the last vacanc% will be appointed. The last vacanc% re#ers to that created b% the elevation o# the councilor as vice-ma%or. The reason behind the rule is to maintain part% representation. (.avarro v. Court of )ppeals, <( $7$30,, 03.2+.200$) I sweat, I bleed, I soar Service, Sacrifice, Excellence B- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
&e ranBing in te sanggunian sall be determined on basis of te proportion of te votes obtained b% eac "inning candidate to te total number of registered voters. &e la" does not provide tat te number of votes "o actuall% voted must be factored in te ranBing. (;ictoria v. Comelec, &? -CECC<, C-.-C.E=) 4. The prohibition on midni$ht appointments onl% applies to presidential appointments. There is no law that prohibits local elective o##icials #rom ma4in$ appointments durin$ the last da%s o# hisG her tenure. (De (ama v. Court of )ppeals, 353 SC() *7) 1n accordance "it Section 77 of te $**$ ;ocal <overnment Code, te igest ranBing sangguniang baranga% member, not te second placer, "o sould become te punong baranga% in case te "inning candidate is ineligible. (Bautista v. Comelec, &? -<=9EB, -C../..CC/5 Toal Iae %. Comele!' &R (.>.*?0 (.>.*>' +B.*G.*++B) Tem#or%r* H%c%ncies 1. 0hen the $overnor, cit% or municipal ma%or, or punon$ baran$a% is temporaril% incapacitated to per#orm his duties #or ph%sical or le$al reasons such as, but not limited to, leave o# absence, travel abroad and suspension #orm o##ice, the vice $overnor, cit% or municipal vice ma%or, or the hi$hest ran4in$ san$$unian baran$a% member shall automaticall% e'ercise the powers and per#orm the duties and #unctions o# the local chie# e'ecutive concerned, e'cept the power to appoint, suspend, or dismiss emplo%ees which can be e'ercised onl% i# the period o# temporar% incapacit% e'ceeds thirt% wor4in$ da%s. (aid temporar% incapacit% shall terminate upon submission to the appropriate san$$unian o# a written declaration that he has reported bac4 to o##ice. In case the temporar% incapacit% is due to le$al causes, the local chie# e'ecutive concerned shall also submit necessar% documents showin$ that the le$al causes no lon$er e'ists.) .. 0hen the local chie# e'ecutive is travellin$ within the countr% but outside this territorial (urisdiction #or a period not e'ceedin$ three consecutive da%s, he ma% desi$nate in writin$ the o##icer-in-char$e o# the said o##ice. uch authori>ation shall speci#% the powers and #unctions that the local o##icial shall e'ercise in the absence o# the local chie# e'ecutive, e'cept the power to appoint, suspend or dismiss emplo%ees. (I# the local chie# e'ecutive #ails or re#uses to issue such authori>ation, the vice-$overnor, cit% or municipal vice-ma%or, or the hi$hest ran4in$ san$$unian baran$a% member, as the case ma% be , shall have the ri$ht to assume the powers, duties and #unctions o# the said o##ice on the #ourth da% o# absence o# the local chie# e'ecutive, e'cept the power to appoint., suspend or dismiss emplo%ees.) . Com#ens%tion (?A 9-BC, ection D-) The compensation o# local o##icials and personnel shall be determined b% the san$$unian concerned, sub(ect to the provisions o# ?A B9<D KCompensation and :osition Classi#ication Act o# -EDE). The elective baran$a% o##icials shall be entitled to receive honoraria, allowances and other emoluments as ma% be provided b% law or baran$a%, municipal or cit% ordinance, but in no case less than -,CCC per month #or the punon$ baran$a% and :BCC.CC #or the san$$unian members. !lective o##icials shall be entitled to the same leave privile$es as those en(o%ed b% appointive local o##icials, includin$ the cumulation and commutation thereo#. !. 3ec%ll ?ecall is the termination o# o##icial relationship o# an elective o##icial #or loss o# con#idence prior to the e'piration o# his term throu$h the will o# electorate. 1. Initiatin$ the process o# recall throu$h the convenin$ o# the :reparator% ?ecall Assembl% (:?A) is constitutional. The Constitution empowers Con$ress to provide e##ective means o# recall. The adoption o# the :?A resolution is not the recall itsel#. (<arcia v. Comelec, <( $$$5$$, $0.05.*3) 2. 3oss o# con#idence as a $round #or recall is a political *uestion. (<arcia v. Comelec, <( $$$5$$, $0.05.*3) 3. Another resolution b% the :reparator% ?ecall Assembl% must be adopted to initiate the recall o# a vice-ma%or who, be#ore the recall election, became the ma%or. ()fiado v. Comelec, <( $7$,+,, 0*.$+.2000) 4. The :reparator% ?ecall Assembl% is distinct #rom li$a n$ m$a baran$a%. Baran$a% o##icials who participated in recall did so not as members o# the li$a but as :?A members. (#alon4o v. Comelec, <( $2,066, 03.$$.*,) $. "otice to all members o# the :reparator% ?ecall Assembl% is a mandator% re*uirement. (<arcia v. Comelec, <( $$$5$$, $0.05.*3) 6. "otice ma% be served b% president o# the li$a n$ m$a baran$a% who is also a member o# the :reparator% ?ecall Assembl%. (#alon4o v. Comelec, <( $2,066, 03.$$.*,) 7. ervice o# notice ma% be e##ected under an% o# the modes o# service o# pleadin$s R personal, b% re$istered mail. (#alon4o v. Comelec, <( $2,066, 03.$$.*,) I sweat, I bleed, I soar Service, Sacrifice, Excellence B. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
". The --%ear ban (#rom assumption and ne't election) re#ers to the holdin$ o# the recall election, not the convenin$ o# the :?A. (Claudio v. Comelec, <( $70560I ,$7, 05.07.2000) #. The Qre$ular recall electionH mentioned in the --%ear proscription re#ers to an election where the o##ice held b% the local elective o##icial sou$ht to be recalled will be contested and #illed b% the electorate. (@aras v. Comelec, <( $23$6*, $$.07.*6J :ariol v. Comelec, <( $2,756, 03.20.*,) 10. A part% a$$rieved b% the issuance o# Comelec en banc resolution (calendar o# activities #or recall election) when heG she had su##icient time, must #ile a motion #or reconsideration with Comelec en banc. (:ariol v. Comelec, <( $2,756, 03.20.*,) 6. 3esi)n%tion (?A 9-BC, ection D.) ?esi$nation o# elective local o##icials shall be deemed e##ective onl% upon acceptance b% the #ollowin$ authorities, a) The :resident, in case o# $overnors, vice-$overnors, and ma%ors and vice-ma%ors o# hi$hl% urbani>ed cities and independent component cities. b) The $overnor, in the case o# municipal ma%ors and vice-ma%ors, cit% ma%ors and vice-ma%ors o# component cities. c) The san$$unian concerned, in case o# san$$unian members. d) The cit% or municipal ma%or, in the case o# baran$a% o##icials. K"ote, The resi$nation shall be deemed accepted i# not acted upon b% the authorit% concerned within -< wor4in$ da%s #rom receipt thereo#. Irrevocable resi$nations b% san$$unian members shall be deemed accepted upon presentation be#ore an open session o# the san$$unian concerned and dul% entered in its records, e'cept where the san$$unian members are sub(ect to recall elections or to cases where e'istin$ laws prescribe the manner o# actin$ upon such resi$nations.L 1I. ?riev%nce Proce"$re (?A 9-BC, ection D/) The local chie# e'ecutive shall establish a procedure to in*uire into, act upon, resolve or settle complaints and $rievances presented b% local $overnment emplo%ees. 11. /isci#line (?A 9-BC, ections BC-BD) ?ro$n"s ,or /isci#lin%r* Action' An elective local o##icial ma% be disciplined, suspended, or removed #rom o##ice on an% o# the #ollowin$ $rounds, 1. Dislo%alt% to the republic o# the :hilippines. 2. Culpable violation o# the Constitution. /. Dishonest%, oppression, misconduct in o##ice, $ross ne$li$ence, or dereliction o# dut%. It was held that acts o# lasciviousness cannot be considered misconduct in o##ice, and ma% not be the basis o# an order o# suspension. To constitute a $round #or disciplinar% action, the ma%or char$ed with the o##ense must be convicted in the criminal action. =. Commission o# an% o##ense involvin$ moral turpitude or an o##ense punishable b% at least prision ma%or. <. Abuse o# authorit%. In #ailin$ to share with the municipalities concerned the amount paid b% the "aitonal :ower Corporation #or the redemption o# the properties ac*uired b% the :rovince o# Alba% at a public auction held #or delin*uent realt% ta'es, the :rovincial 2##icials were held $uilt% o# abuse o# authorit%. (alalima v. &uin$ona, .<9 C?A <<) B. +nauthori>ed absence #or -< consecutive wor4in$ da%s, e'cept in the case o# members o# the san$$unian$ palalawi$an, panlun$sod, ba%an and baran$a%. 7. Application #or, or ac*uisition o#, #orei$n citi>enship or residence or the status o# an immi$rant o# another countr%. D. uch other $rounds as ma% be provided in this Code and other laws. KAn elective local o##icial ma% be removed #rom o##ice on the $rounds enumerated above b% order o# the proper court.L C%ses on /isci#liin%r* Action (A$ra "otes) 1. The power o# the :resident over administrative disciplinar% cases a$ainst elective local o##icials is derived #rom hisG her power o# $eneral supervision over local $overnments. The power to discipline and ensure that the laws be #aith#ull% e'ecuted must be construed to authori>e the :resident to order an investi$ation o# the act or conduct o# local o##icials when in hisG her opinion the $ood o# the public service so re*uires. Thus, 7Independentl% o# an% statutor% provision authori>in$ the :resident to conduct an investi$ation o# the nature involved in this proceedin$, and in view o# the nature and character o# the e'ecutive authorit% with which the :resident o# the :hilippines is invested, the constitutional $rant to himG her power to e'ercise $eneral supervision over all local $overnments and to ta4e care that the laws be #aith#ull% e'ecuted must be construed to authori>e himG her to order an investi$ation o# the act or conduct o# the local o##icial.(:oson v. &orres, <( $3$255, 05.20.*+) 2. Iurisdiction over administrative disciplinar% actions a$ainst elective local o##icials is lod$ed in two authorities, the I sweat, I bleed, I soar Service, Sacrifice, Excellence B/ FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Disciplinin$ Authorit% and the Investi$atin$ Authorit%. The Disciplinar% Authorit% ma% constitute a pecial Investi$atin$ Committee in lieu o# the ecretar% o# the Interior and 3ocal &overnment. 0ith respect to a provincial $overnor, the disciplinin$ Authorit% is the :resident o# the :hilippines, whether actin$ b% himsel#G hersel# or throu$h the !'ecutive ecretar%. The ecretar% o# the Interior and 3ocal &overnment is the Investi$atin$ Authorit%, who ma% act himsel#G hersel# or constitute and Investi$atin$ Committee. The ecretar% o# the Department, however, is not the e'clusive Investi$atin$ Authorit%. In lieu o# the Department ecretar%, the Disciplinin$ Authorit% ma% desi$nate a pecial Investi$atin$ Committee. The power o# the :resident over administrative disciplinar% cases a$ainst elective local o##icials is derived #rom hisG her power o# $eneral supervision over local $overnments. The power o# the Department to investi$ate administrative complaints is based on the alter-e$o principle or the doctrine o# *uali#ied political a$enc%. (:oson v. &orres, <( $3$255,05.20.*+) 3. An Qadministrative o##enseH means ever% act or conduct or omission which amounts to, or constitutes, an% o# the $rounds #or disciplinar% action. (Salalima v. <uingona, <( $$,5+*'*2,05.22.*6) 4. The -EE- 3ocal &overnment Code is the applicable law inso#ar as disciplinar% action a$ainst an elective local o##icial is concerned. The Code prevails over the Administrative Code since the latter is o# $eneral application and the #ormer was enacted much later than the latter. (Calingin v. Court of )ppeals, <( $576$6, 0,.$2.2007) $. 0hen a ma%or is ad(ud$ed to be dis*uali#ied, a permanent vacanc% was created #or #ailure o# the elected ma%or to *uali#% #or the o##ice. In such eventualit%, the dul% elected vice ma%or shall succeed as provided b% law. The second placer cannot be declared as ma%or. (&oral 9are v. Comelec, <( $5,526I $5,52,, 07.2+.2007) 6. An% vote cast in #avor o# a candidate, whose dis*uali#ication has alread% been declared #inal re$ardless o# the $round, shall be considered stra%. The application o# this rule is not onl% limited to dis*uali#ication b% conviction in a #inal (ud$ment. ection =C o# the -EE- 3ocal &overnment Code enumerates other $rounds. The dis*uali#ication o# a candidate is not onl% b% conviction in a #inal (ud$ment. (&oral 9are v. Comelec, <( $5,526I $5,52,, 07.2+.2007) 7. A reelected local o##icial ma% not be held administrativel% accountable #or misconduct committed durin$ hisG her prior term o# o##ice. The re-election o# a public o##icial e'tin$uishes onl% the administrative, but not the criminal, liabilit% incurred durin$ the previous term o# o##ice. (8alencia v. Sandiganba%an, <( $7$336, 06.2*.2007) A local o##icial who was re-elected can no lon$er be char$ed administrativel% #or misconduct durin$ previous term. (<arcia v. #o0ica, <( $3*073, 0*.$0.**) An administrative case has become moot and academic as a result o# the e'piration o# term o# o##ice o# an elective local o##icial durin$ which the act complained o# was alle$edl% committed. :roceedin$s a$ainst respondent are there#ore barred b% hisG her re-election. (#alinao v. (e%es, <( $$,6$+, 03.2*.*6J (e%es v. Comelec, <( $20*05, 03.0,.*6) ". +nder the -EE- 3ocal &overnment Code, the dis*uali#ication to run #or an% elective local position is #or two %ears a#ter service o# sentence, not < %ears under the 2mnibus !lection Code since the 3&C is the later enactment. (#agno v. Comelec, <( $7,*07, $0.07.2002) 12. C%ses on O,,enses (A$ra "otes) 1. There are no unlaw#ul disbursements o# public #unds when disbursements are made pursuant to a reenacted bud$et. )one% can be paid out o# the local treasur% since there is a valid appropriation. There is no undue in(ur% since there was non unlaw#ul e'penditure. @owever, onl% the annual appropriations #or salaries and wa$es, statutor% and contractual obli$ations, and essential operatin$ e'penses are deemed reenacted. There is criminal liabilit% in dela% in submission o# the bud$et proposal provided the re*uirements under ection /-D o# the Code are not met. The ma%or must #irst receive the necessar% #inancial documents #rom other cit% o##icials in order to be able to prepare the bud$et. (8illanueva v. 3ple, <( $65$25, $$.$+.2005) 2. A ma%or who continues to per#orm the #unctions o# the o##ice despite the #act that heG she is under preventive suspension usurps the authorit% o# the 2##ice o# the )a%or and is liable #or violation o# ection -/ o# the Anti-&ra#t and Corrupt :ractices Act. ection -/ o# ?.A. "o. /C-E covers two t%pes o# o##enses, (-) an% o##ense involvin$ #raud on the $overnment5 and (.) an% o##ense involvin$ public #unds or propert%. The #irst t%pe involves an% #raud whether public #unds are involved or not. 7Araud upon $overnment8 I sweat, I bleed, I soar Service, Sacrifice, Excellence B= FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
means 7an% instance or act o# tric4er% or deceit a$ainst the $overnment.8 It cannot be read restrictivel% so as to be e*uivalent to malversation o# #unds. @onest belie# that he is no lon$er under preventive suspension cannot serve as de#ense when he re#used to leave his position despite havin$ received the memorandum #rom the Department o# Interior and 3ocal &overnment and onl% vacatin$ the o##ice a#ter bein$ #orced out b% the :hilippine "ational :olice. (#iranda v. Sandiganba%an, <( $570*+, 0,.2,.2005) 3. B% allowin$ a dismissed emplo%ee whose dismissal was a##irmed b% the Civil ervice Commission to continue wor4in$ and receive hisG her salar%, the ma%or accorded unwarranted bene#its to a part%. There#ore heG she is liable #or violatin$ ection /(e) o# the Anti-&ra#t and Corrupt :ractices Act. At the time o# the commission o# the crime, the municipal ma%or, heG she was mandated to abide b% Article I o# ection ===(b)(') o# -EE- 3ocal &overnment Code which directs e'ecutive o##icials and emplo%ees o# the municipalit% to #aith#ull% dischar$e their duties and #unctions as provided b% law. Considerin$ such dut%, the ma%or had to en#orce decisions or #inal resolutions, orders or rulin$s o# the Civil ervice Commission. (8elasco v. Sandiganba%an, <($60**$, 02.2+.2005) 4. +nder ection /(h) o# ?.A. /C-E, the person liable is an% public o##icer who directl% or indirectl% has #inancial or pecuniar% interest in an% business, contract or transaction in connection with which he intervenes or ta4es part in his o##icial capacit%, or in which he is prohibited b% the Constitution or b% an% law #rom havin$ an% interest. The essential elements o# the violation o# said provision are as #ollows, -) The accused is a public o##icer5 .) he has a direct or indirect #inancial or pecuniar% interest in an% business, contract or transaction5 /) he either, a) intervenes or ta4es part in his o##icial capacit% in connection with such interest, or b) is prohibited #rom havin$ such interest b% the Constitution or b% law. In other words, there are two modes b% which a public o##icer who has a direct or indirect #inancial or pecuniar% interest in an% business, contract, or transaction ma% violate ection /(h) o# ?.A. /C-E. The #irst mode is when the public o##icer intervenes or ta4es part in his o##icial capacit% in connection with his #inancial or pecuniar% interest in an% business, contract or transaction. The second mode is when he is prohibited #rom havin$ such an interest b% the Constitution or b% law. K Thus, a ma%or violated the a#orestated provision via the #irst mode when heGshe intervened in hisGher o##icial capacit% in connection with hisGher #inancial or pecuniar% interest in the transaction re$ardin$ the suppl% and deliver% o# mi'ed $ravel and sand to the constituent baran$a%s. It was the ma%orHs compan% that supplied the materials. (Domingo v. Sandiganba%an, <( $7*$,5, $0.25.2005) $. There are two modes b% which a public o##icer who has a direct or indirect #inancial or pecuniar% interest in an% business, contract, or transaction ma% violate ection /(h) o# the Anti-&ra#t and Corrupt :ractices Act. The #irst mode is i# in connection with hisG her pecuniar% interest in an% business, contract or transaction, the public o##icer intervenes or ta4es part in hisG her o##icial capacit%. The second mode is when heG she is prohibited #rom havin$ such interest b% the Constitution or an% law. A ma%or relative to the issuance o# a license to operate a coc4pit which heG she owns cannot be held liable under the #irst mode since heG she could not have intervened or ta4en part in hisG her o##icial capacit% in the issuance o# a coc4pit license because he was not a member o# the an$$unian$ Ba%an. +nder the -EE- 3ocal &overnment Code, the $rant o# a license is a le$islative act o# the san$$unian. @owever, the ma%or could be liable under the second mode. Aurther, ection DE o# the -EE- 3ocal &overnment Code proscribes such pecuniar% interest. The penalt% must be that one provided under the Code, not under the Anti-&ra#t 3aw since the Code speci#icall% re#ers to interests in coc4pits while the latter re#ers in $eneral to pecuniar% interest. (&eves v. Sandiganba%an, <( $57$+2, $2.$,.2007) 6. An ille$all% dismissed $overnment emplo%ee who is later ordered reinstated is entitled to bac4wa$es and other monetar% bene#its #rom the time o# hisG her ille$al dismissal up to hisG her reinstatement. This is onl% #air and (ust because an emplo%ee who is reinstated a#ter havin$ been ille$all% dismissed is considered as not havin$ le#t hisG her o##ice and should be $iven the correspondin$ compensation at the time o# hisG her reinstatement. 0hen there is no malice or bad #aith that attended the ille$al dismissal and re#usal to reinstate on the part o# the municipal o##icials, the% cannot be held personall% accountable #or the bac4 salaries. The municipal $overnment should disburse #unds to answer #or the claims resultin$ #rom dismissal. (Civil Service Commission v. <entallan, <( $52+33, 05.0*.2005) 7. Q)oral TurpitudeH is an act o# baseness, vileness, or depravit% in the private duties which a person owes hisG her #ellow I sweat, I bleed, I soar Service, Sacrifice, Excellence B< FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
men (and women) or to the societ% in $eneral, contrar% to the accepted and customar% rule o# ri$ht and dut% between man and woman or conduct contrar% to (ustice, honest%, modest%, or $ood morals. 2ne such act is the crime o# #encin$. (Dela &orre v. Comelec <( $2$5*2, 0,.05.*6) ". A local chie# e'ecutive is not dut%- bound to approve and si$n a voucher when there is no appropriations ordinance and when there is no certi#ication o# availabilit% o# #unds #or the intended purpose. Aor not si$nin$ the voucher, bad #aith cannot be imputed a$ainst himG her. (;lorente v. Sandiganba%an, <($22$66, 03.$$.*+) #. 0hen the validit% o# subse*uent appointments to the position o# Assistant Cit% Assessor has not been challen$ed, the cit% ma%or who appointed a person to serve in said position had ever% ri$ht to assume in $ood #aith that the one who held the position prior to the appointments no lon$er held the same. Thus, the cit% ma%or is not liable #or violation o# ections /(a) and /(e) o# the Anti- &ra#t and Corrupt :ractices Act. ection /(a) re*uires a deliberate intent on the part o# the public o##icial concerned to violate those rules and re$ulations dul% promul$ated b% competent authorit%, or to commit an o##ense in connection with o##icial duties. 2n the other hand, ection /(e) poses the standard o# mani#est partialit%, evident bad #aith, or $ross ine'cusable ne$li$ence be#ore liabilit% can be had on that para$raph. )ani#est partialit% has been characteri>ed as a clear, notorious or plain inclination or predilection to #avor one side rather than the other. !vident bad #aith connotes a mani#est deliberate intent on the part o# the accused to do wron$ or cause dama$e. &ross ine'cusable ne$li$ence has been de#ined as ne$li$ence characteri>ed b% the want o# even sli$ht care, actin$ or omittin$ to act in a situation where there is a dut% to act, not inadvertentl% but wil#ull% and intentionall% with a conscious indi##erence to conse*uences in so #ar as other persons ma% be a##ected. ((e%es v. )tien4a, <( $52273, 0*.23.2005) 10. The approval b% the Commission on Audit (C2A) o# disbursements o# local #unds b% a local e'ecutive relates to the administrative aspect o# the matter o# the o##icials accountabilit%. It does not #oreclose the 2mbudsmanHs authorit% to investi$ate and determine whether there is a crime to be prosecuted #or which heG she is accountable. Compliance with C2A rules and re$ulations does not necessaril% mean that no misappropriation o# public #unds was committed. !vidence in this re$ard must still be adduced. ()guinaldo v. Sandiganba%an, <( $277,$, $$.2+.*6) 11. :ublic o##icials, more especiall% an elected one, should not be onion-s4inned. Thus, a vice-ma%or who beat up a motorist despite the provocation b% the latter, is $uilt% o# misconduct. The period where an o##icial was placed under preventive suspension cannot be credited to the penalt% imposed on himG her. (Kabut v. 3ffice of te 3mbudsman, <( $$$307, 0,.$,.*7) 12. A cit% ma%or cannot be held liable under ection /($) o# the Anti-&ra#t and Corrupt :ractices Act #or enterin$ into a contract which is $rossl% and mani#estl% disadvanta$eous to the $overnment when the contract which is sub(ect o# the complaint has been rescinded be#ore the report o# the Commission on Audit came out and be#ore the complaint was #iled with the 2mbudsman. (Duterte v. Sandiganba%an, <( $30$*$, 07.2,.*+) 13. :artial restitution o# cash shorta$e is an implied admission o# misappropriation o# missin$ #unds b% the municipal treasurer in case where heG she o##ers no competent and credible evidence to prove that the missin$ #unds were actuall% cash advances o# emplo%ees in the municipalit%. (Doldol v. @eople of te @ilippines, <( $677+$, 0*.20.2005) 13. C%ses on Proce"$re (A$ra "otes) 1. An errin$ elective local o##icials has ri$hts a4in to the constitutional ri$hts o# an accused. These are essentiall% part o# procedural due process. The local elective o##icial has the (-) ri$ht to appear and de#end himsel#G hersel# in person or b% counsel5 (.) the ri$ht to con#ront and cross-e'amine the witnesses a$ainst himG her5 and (/) the ri$ht to compulsor% attendance o# witness and the production o# documentar% evidence. Thus, the o##icialHs ri$ht to a #ormal investi$ation was not satis#ied when the complaint a$ainst himG her decided on the basis o# position papers. The provisions #or administrative disciplinar% actions elective local o##icials are mar4edl% di##erent #rom appointive o##icials. The rules on the removal and suspension o# elective local o##icials are more strin$ent. The procedure o# re*uirin$ position papers in lieu o# a hearin$ in administrative cases is e'pressl% allowed with respect to appointive o##icials but not to those elected. An elective o##icial, elected b% popular vote, is directl% responsible to the communit% that elected himG her. The o##icial has a de#inite term o# o##ice #i'ed b% law which is relativel% o# short duration. uspension and removal #rom o##ice I sweat, I bleed, I soar Service, Sacrifice, Excellence BB FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
de#initel% a##ects and shortens this term o# o##ice. 0hen an elective o##icial is suspended or removed, the people are deprived o# the services o# the o##icial the% had elected. (:oson v. &orres, <( $3$255, 05.20.*+) 2. The essence o# procedural due process is embodied in the basic re*uirement o# notice and a real opportunit% to be heard. In administrative proceedin$s, procedural due process simpl% means the opportunit% to e'plain oneHs side or the opportunit% to see4 a reconsideration o# the action or rulin$ complained o#. :rocedural due process has been reco$ni>ed to include the #ollowin$, (-) the ri$ht to actual or constructive notice o# the institution o# proceedin$s which ma% a##ect a respondentHs le$al ri$hts5 (.) a real opportunit% to be heard personall% or with the assistance o# counsel, to present witnesses and evidence in oneHs #avor, and to de#end oneHs ri$hts5 (/) a tribunal vested with competent (urisdiction and so constituted as to a##ord a person char$ed administrativel% a reasonable $uarantee o# honest% as well as impartialit%5 and (=) a #indin$ b% said tribunal which is supported b% substantial evidence submitted #or consideration durin$ the hearin$ or contained in the records or made 4nown to the parties a##ected. Ninship alone does not establish bias and partialit%. Bias and partialit% cannot be presumed. In administrative proceedin$s, no less than substantial proo# is re*uired. )ere alle$ation is not e*uivalent to proo#. )ere suspicion o# partialit% is not enou$h. There should be hard evidence to prove it, as well as mani#est showin$ o# bias and partialit% stemmin$ #rom an e'tra(udicial source or some other basis. (Casimiro v. &andog, <( $76$3,, 06.0+.2005) 3. An administrative complaint a$ainst an errin$ elective o##icial must be veri#ied and #iled with the proper $overnment o##ice. A complaint a$ainst an elective provincial or cit% must be #iled with the 2##ice o# the :resident. A complaint a$ainst an elective municipal o##icial must be #iled with the an$$unian$ :anlalawi$an while that o# a baran$a% o##icial must be #iled be#ore the an$$unian$ :anlun$sod or an$$unian$ Ba%an. (#endo4a v. ;a/ina, <( $76+,5, 0,.$7.2003) 4. The lac4 o# veri#ication in a letter- complaint ma% be waived, the de#ect bein$ not #atal. ;eri#ication is a #ormal, not (urisdictional re*uites. (:oson v. &orres <( $3$255, 05.20.*+) $. Decisions o# the 2##ice o# the :resident are #inal and e'ecutor%. "o motion #or reconsideration is allowed b% law but the parties ma% appeal the decision to the Court o# Appeals. The appeal, however, does not sta% the e'ecution o# the decision. The ecretar% o# the Interior and 3ocal &overnment ma% validl% move #or its immediate e'ecution. (Calingin v. Court of )ppeals, <( $576$6, 0,.$2.2007) 6. Direct recourse to the courts without e'haustin$ administrative remedies is not permitted. Thus, a ma%or who claims that the imposition o# preventive suspension b% the $overnor was un(usti#ied and politicall% motivated, should see4 relie# #irst #rom the ecretar% o# the Interior and 3ocal &overnment, not #rom the courts. (Cspiritu v. #elgar, <( $00+,7, 02.$3.*2) 7. The -EE- 3ocal &overnment Code does not preclude the #ilin$ o# an appeal o# a decision o# a san$$unian$ panlun$sod involvin$ an elective baran$a% o##icial. ection BD o# the Code speci#icall% allows a part% to appeal to the 2##ice o# the :resident. The decision is immediatel% e'ecutor% but the respondent ma% nevertheless appeal the adverse decision to the 2##ice o# the :resident or to the an$$unian$ :anlalawi$an, as the case ma% be. (#endo4a v. ;a/ina, <( $76+,5, 0,.$7.2003) ". +nder ection B- o# the -EE- 3ocal &overnment Code, a complaint a$ainst an% elective o##icial o# a municipalit% shall be #iled be#ore the san$$unian$ panlalawi$an whose decision ma% be appealed to the 2##ice o# the :resident. 0hen appeal to the 2##ice o# the :resident is available, resort to #ilin$ a petition #or certiorari, prohibition and mandamus with the Court o# Appeals under ?ule B<, -= was inapt. The availabilit% o# the ri$ht o# appeal precludes recourse to the special civil action #or certiorari. (?alindong v. Dacalos, <( $5++,7, $$.$0. 2007) #. "o notice o# the session where a decision o# the san$$unian is to be promul$ated on the administrative case is re*uired to be $iven to the petitioner. The deliberation o# the san$$unian is an internal matter. In order to render a decision in administrative cases involvin$ elective local o##icials, the decision o# the san$$unian must be writin$ statin$ clearl% and distinctl% the #acts and the reasons #or the decision. Thus, the votin$ #ollowin$ the deliberation o# the members o# the san$$unian did not constitute the decision unless this was embodied in an opinion prepared b% one o# them and concurred in b% the others. +ntil the members have si$ned the opinion and the decision is promul$ated, the% are #ree to chan$e their votes. (#alinao v. (e%es, <( $$,6$+, 03.2*.*6) I sweat, I bleed, I soar Service, Sacrifice, Excellence B9 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
10. The #ilin$ o# motion #or reconsideration be#ore the supervisin$ local $overnment concernin$ a disciplinar% case involvin$ an elective o##icial o# the supervised unit prevents the decision o# the #ormer #rom becomin$ #inal. Thus, there is thus no decision #indin$ the o##icial $uilt% to spea4 o# which would dis*uali#% said o##icial. (;ingating v. Comelec, <( $537,5, $$.$3.2002) 11. +nder the -EE- 3ocal &overnment Code, an elective local o##icial must be citi>en o# the :hilippines. 2ne who claims that a local o##icial is not has the burden o# provin$ hisG her claim. In administrative cases and petitions #or dis*uali#ication, the *uantum o# proo# re*uired is substantial evidence. (#atugas v. Comelec, <( $5$*77, 0$.20.2007) 12. The 2##ice o# the :resident is authori>ed to sta% the e'ecution o# a decision a$ainst a municipal ma%or issued b% the an$$unian$ :analawi$an pendin$ appeal. ?eviewin$ o##icials are not deprived o# their authorit% to order a sta% an appealed decision. upervisin$ o##icials are $iven such discretion. (?erces v. <uingona, 27$ SC() 53*) 14. Com#l%ints 1. A veri#ied complaint a$ainst provincial, hi$hl% urbani>ed cit% or independent component cit% elective o##icial, shall be #iled be#ore the 2##ice o# the :resident. a) It ma% be noted that the Constitution places local $overnments under the supervision o# the !'ecutive. 3i4ewise, the Constitution allows Con$ress to include in the 3ocal &overnment Code provisions #or removal o# local o##icials, which su$$est that Con$ress ma% e'ercise removal powers. o, the 3ocal &overnment Code has done and dele$ated its e'ercise to the :resident. "ote also that le$all%, supervision is not incompatible with disciplinar% authorit%. (&an>on v. CA, .CC C?A .9-) ') +nder Administrative 2rder "o. ./, the :resident has dele$ated the power to investi$ate complaints to the ecretar% o# Interior and 3ocal &overnment. This is valid dele$ation because what is dele$ated is onl% the power to investi$ate, not the power to discipline. Besides, the power o# the ecretar% o# Interior and 3ocal &overnment to investi$are is based on the alter ego principle. (Ioson v. Torres, .EC C?A .9E) c) The respondent has the ri$ht to #ormal investi$ation under Administrative 2rder "o. ./ which includes the ri$ht to appear and de#end himsel# in person or b% counsel, the ri$ht ri$ht to con#ront the witnesses a$ainst him and the ri$ht to compulsor% process #or the attendance o# witnesses and the production o# documents. Thus, in this case, where the ecretar% denied the petitioners motion #or a #ormal investi$ation and decided the case on the basis o# position papers, the ri$ht # the petitioner was violated (Ioson v. Torres) In Salalima v. <uingona, 25, SC() 55, the C said that the administrative investi$ation can proceed even durin$ the pendenc% o# an appeal o# audit #indin$s to the Commission on Audit. 2. A veri#ied complaint a$ainst elective municipal o##icials, shall be #iled be#ore the san$$uinian panlalawi$an, whose decision ma% be appealed to the 2##ice o# the :resident. a) Administrative 2rder "o. -D dated Aebruar% -., -ED9, which provides that on appeal #rom the decision o# the an$$unian$ :anlalawi$an, the :resident ma% sta% e'ecution o# the appealed decision, was deemed not to have been repealed b% ?A 9-BC did not e'pressl% repeal the administrative order, and implied repeals are #rowned upon. (Berces v. !'ecutive ecretar%, .=- C?A </E) ') The decision o# the san$$unian panlalawi$an in administrative cases involvin$ elective o##icials ma% be in writin$ statin$ clearl% and distinctl% the #acts and the reasons #or the decision, and must be si$ned b% the re*uisite ma(orit% o# the san$$unian. ()alinao v. ?e%es, .<B C?A B-B) 3. A valid complaint a$ainst elective baran$a% o##icials, shall be #iled be#ore the san$$unian$ pan$lun$sod os sa$$unian$ ba%an concerned, whose decision shall be #inal and e'ecutor. 15. Preventive S$s#ension (A$ra "otes) 1. N%t$re. :reventive suspension is merel% a preventive measure, a preliminar% step in an administrative investi$ation. P$r#ose. The purpose o# the suspension order is to prevent the accused #rom usin$ his position and the powers and prero$atives o# his o##ice to in#luence potential witnesses or tamper with records which ma% be vital in the prosecution o# the case a$ainst him.
I# a#ter such investi$ation, the char$e is established and the person investi$ated is #ound $uilt% o# acts warrantin$ his suspension or removal, then he is suspended, removed or dismissed. This is the penalt%. "ot bein$ a penalt%, the period within which one is under preventive suspension is not considered part o# the actual penalt% o# suspension. Thus, service o# the preventive suspension cannot be credited as service o# penalt%. (2uimbo v. <ervacio, <( $55620,0+.0*.2005) 2. PreAre0$isites. A preventive suspension ma% be imposed b% the Disciplinar% Authorit% at an% time (a) a#ter the issues are (oined i.e. respondent has #iled an answer5 (b) when the evidence o# $uilt is I sweat, I bleed, I soar Service, Sacrifice, Excellence BD FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
stron$5 and (c) $iven the $ravit% o# the o##enses, there is $reat probabilit% that the respondent, who continues to hold o##ice, could in#luence the witnesses or pose a threat to the sa#et% and inte$rit% o# the records and other evidence. These are the pre-re*uisites. @owever, the #ailure o# respondent to #ile hisG her answer despite several opportunities $iven himG her is construed as a waiver o# hisG her ri$ht to present evidence in hisG her behal#. In this situation, a preventive suspension ma% be imposed even i# an answer has not been #iled. (:oson v. &orres, <( $3$255, 05.20.*+) 3. ection B/ o# the 3ocal &overnment Code which provides #or a BC da% ma'imum period #or preventive suspension #or a sin$le o##ice does not $overn preventive suspensions imposed b% the 2mbudsman, which is a constitutionall% created o##ice and independent #rom the !'ecutive branch o# $overnment. The 2mbudsmanHs power o# preventive suspension is $overned b% ?epublic Act "o. B99C
otherwise 4nown as 7The 2mbudsman Act o# -EDE8. +nder the Act, the preventive suspension shall continue until the case is terminated b% the 2##ice o# the 2mbudsman but not more than si' months. (#iranda v. Sandiganba%an, <( $570*+, 0,.2,.2005) 4. +nder the -EE- 3ocal &overnment Code, a sin$le preventive suspension o# local elective o##icials should not $o be%ond BC da%s. Thus, the andi$anba%an cannot preventivel% suspend a ma%or #or EC da%s. ((ios v. Sandiganba%an, <( $2**$3, 0*.26.*,) $. A municipal o##icial placed under preventive suspension b% a san$$unian$ panlalawi$an must #ile a motion #or reconsideration be#ore the said san$$unian be#ore #ilin$ a petition #or certiorari with the Court o# Appeals. uch motion is a condition sine qua non be#ore #ilin$ a petition #or certiorari under ?ule B< o# the -EE9 ?ules o# Civil :rocedure, as amended. (Flores v. Sangguniang @anlala"igan of @ampanga, <( $5*022, 02.23.2005) 6. There is nothin$ improper in placin$ an o##icer in preventive suspension be#ore char$es a$ainst himG her are heard and be#ore heGshe is $iven an opportunit% to prove hisGher innocence. This is allowed so that such o##icer ma% not hamper the normal course o# the investi$ation throu$h the use o# hisG her in#luence and authorit%. (Cspiritu v. #elgar, <( $00+,7, 02.$3.*2) 7. The 2mbudsman pursuant to ?epublic Act "o. B99C and the :resident are both authori>ed to place under preventive suspension errin$ local o##icials o# hi$hl%- urbani>ed cities, independent cities and provinces. The 2mbudsman ma% impose a lon$er period o# preventive suspension than the :resident ma%. In order to (usti#% the preventive suspension o# a public o##icial under ection .= o# ?epublic Act "o. B99C, the evidence o# $uilt should be stron$, and (a) the char$e a$ainst the o##icer or emplo%ee should involve dishonest%, oppression or $rave misconduct or ne$lect in the per#ormance o# dut%5 (b) the char$es should warrant removal #rom the service5 or (c) the respondentHs continued sta% in o##ice would pre(udice the case #iled a$ainst himGher. The 2mbudsman can impose the B-month preventive suspension on all public o##icials, whether elective or appointive, who are under investi$ation. 2n the other hand, in imposin$ the shorter period o# si't% (BC) da%s o# preventive suspension under the -EE- 3ocal &overnment Code on an elective local o##icial (at an% time a#ter the issues are (oined), it would be enou$h that (a) there is reasonable $round to believe that the respondent has committed that act or acts complained o#, (b) the evidence o# culpabilit% is stron$, (c) the $ravit% o# the o##ense so warrants, or (d) the continuance in o##ice o# the respondent could in#luence the witnesses or pose a threat to the sa#et% and inte$rit% o# the records and other evidence. (!agad v. <o4o'dadole, <( $0+0,2, $2.$2.*5) 8(o m%* im#ose #reventive s$s#ension. :reventive suspension ma% be imposed b% the :resident, the $overnor, or the ma%or Kas the case ma% beL at an% tome a#ter the issues are (oined, when the evidence o# $uilt is stron$, and $iven the $ravit% o# the o##ense, there is $reat probabilit% that the continuance in o##ice o# the respondent could in#luence the witnesses or pose a threat to the sa#et% and inte$rit% o# the records and other evidence5 provided that an% sin$le preventive suspension shall not e'tend be%ond BC da%s, and in the event several administrative cases are #iled a$ainst the respondent, he cannot be suspended #or more than EC da%s within a sin$le %ear on the same $round or $rounds e'istin$ and 4nown at the time o# the #irst suspension. -. The authorit% to preventivel% suspend is e'ercised concurrentl% b% the 2mbudsman, pursuant to ?A B99C5 the same law authori>es a preventive suspension o# si' months. (@a$ad v. &o>o-Dadole, -EE<) The preventive suspension o# an elective local o##icial (in this case the )a%or o# an Aernando, ?omblon) b% the andi$naba%an I sweat, I bleed, I soar Service, Sacrifice, Excellence BE FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
on a char$e o# violation o# ?A /C-E, shall li4ewise be onl% #or a period o# BC da%s, not EC da%s, consistent with ection B/, ?A 9-BC, which provides that 7an% sin$le preventive suspension o# local elective o##icials shall not e'tend be%ond BC da%s.8 (?ios v. andi$anba%an, -EE9) .. +pon e'piration o# the preventive suspension, the respondent shall be deemed reinstated in o##ice without pre(udice to the continuation o# the proceedin$s a$ainst him, which shall be terminated within -.C da%s #rom the time he was #ormall% noti#ied o# the case a$ainst him. /. An% abuse o# the e'ercise o# the power o# preventive suspension shall be penali>ed as abuse o# authorit%. 16. Pen%lt* (A$ra "otes) 1. +nder ection BC o# the -EE- 3ocal &overnment Code, the penalt% o# dismissal #rom service upon an errin$ local o##icial ma% be declared onl% b% a court o# law. Thus, Article -.=(b), ?ule XIX o# the ?ules and ?e$ulations Implementin$ the 3ocal &overnment Code, which $rants the disciplinar% authorit% the power to remove elective local o##icials, is a nullit%. (@ablico v. 8illapando, <( $7,+,0, 0,.3$.2002) 2. A san$$unian panlalawi$an ma% cause the removal o# a municipal ma%or who did not appeal to the 2##ice o# the :resident within the re$lemantar% period the decision removal himG her #rom o##ice. I# a public o##icial is not removed be#ore hisG her term o# o##ice e'pires, heG she can no lon$er be removed i# heGshe therea#ter re-elected #or another term. There#ore, a decision removin$ an elective local o##icial, which has become #inal be#ore the election, constitutes a dis*uali#ication. ((e%es v. Comelec, <( $20*05, 03.0,.*6) 3. The :resident ma% suspend an errin$ provincial elected o##icial who committed several administrative o##enses #or an a$$re$ate period e'ceedin$ B months provided that each administrative o##ense, the period o# suspension does not e'ceed the B- month limit. (Salalima v. <uingona, <( $$,5+*'*2, 05.22.*6) 4. Dishonest% , oppression, misconduct in o##ice, $ross ne$li$ence, or an o##ense punishable b% at least prison ma%or constitute $rounds #or removal upon order o# the proper court. (Castillo'Co v. ?arbers <( $2**52, 06.$6.*+) The penalt% o# suspension imposed upon the respondent shall not e'ceed his une'pired term, or a period o# B months #or ever% administrative o##ense, nor shall said penalt% be a bar to the candidac% o# the respondent as lon$ as he meets the *uali#ications re*uired #or the o##ice. 1. In @ablico v. 8illapando, 2002, it was held that b% virtue o# ection BC o# the 3&C, which provides that 7an elective local o##icial ma% be removed #rom o##ice on $rounds enumerated above b% order o# the proper court,8 the penalt% o# dismissal #orm the service ma% be imposed upon an errin$ local elective o##icial onl% b% a court o# law. The provision o# the Implementin$ ?ules and ?e$ulations $rantin$ the disciplinin$ authorit% the power to remove an elective local o##icial administrativel% are invalid. .. "ote that under ection =C o# the 3ocal &overnment Code, the penalt% o# removal #orm o##ice as a result o# an administrative case shall be a bar to the candidac% o# the respondent #or an% elective local o##ice. 3. In Salalima v. <uingona, 25, SC() 55, the C upheld the imposition o# the administrative penalt% o# suspension o# not more than B months #or each o##ense, provided that the successive serves o# the sentence should not e'ceed the une'pired portion o# the term o# the petitioners. The suspension did not amount to removal #rom o##ice. 1. A"ministr%tive A##e%l Decision ma%, within /C da%s #rom receipt thereo#, be appealed to, -. The san$$unian$ panlalawi$an, in the case o# decision o# component citiesH san$$unian$ panlun$sod and san$$unian$ ba%an5 2. The 2##ice o# the :resident, in the case o# decision o# the san$$unian$ panlalawi$an and the san$$unian$ pan$lun$sod o# hi$hl% urbani>ed cities and independent component cities. Decision o# the 2##ice o# the :resident shall be #inal and e'ecutor%. a) In #alinao v. (e%es, 255 SC() 6$6, the C ruled that certiorari will not lie because there is still ade*uate remed% available in the ordinar% course o# law, i.e., appeal o# the decision o# the an$$unian$ :anlalawi$an to the 2##ice o# the :resident. ') That there is appeal to the 2##ice o# the :resident is reiterated in #endo4a v. ;a/ina, 2003, althou$h in this case, because the issue raised was purel% le$al, resort to court was upheld. The phrases, 7#inal and e'ecutor%8 and 7#inal or e'ecutor%8 in ections B9 and BD o# the 3ocal &overnment Code, simpl% mean that administrative appeal will not prevent the en#orcement o# the decision. 0hile the administrative decision is immediatel% e'ecutor%, the local elective o##icial ma% I sweat, I bleed, I soar Service, Sacrifice, Excellence 9C FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
nevertheless appeal the adverse decision to the 2##ice o# the :resident or the an$$unian :anlalawi$an, as the case ma% be. A#ter all, i# e'onerated on appeal, he will be paid his salar% an such other emoluments denied him durin$ the pendenc% o# the appeal. 1!. 7>ec$tion Pen"in) A##e%l An appeal shall not prevent a decision #rom bein$ e'ecuted5 the respondent shall be considered as havin$ been placed under preventive suspension durin$ the pendenc% o# the appeal. But in ?erces v. C/ecutive Secretar%, 27$ SC() 530, the C pointed out the Administrative 2rder "o. -D authori>es the 2##ice o# the :resident to sta% the e'ecution o# a decision pendin$ appeal. Administrative 2rder "o. -D was not repealed b% the 3ocal $overnment Code. 16. @$ris"iction o, S%n"i)%n-%*%n -. Aor an o##ense to #all under the e'clusive ori$inal (urisdiction o# the andi$anba%an, the #ollowin$ re*uisites must concur, (-) the o##ense committed is a violation o# (a) ?.A. /C-E, as amended (the Anti-&ra#t and Corrupt :ractices Act), (b) ?.A. -/9E (the law on ill-$otten wealth), (c) Chapter II, ection ., Title ;II, Boo4 II o# the ?evised :enal Code (the law on briber%), (d) !'ecutive 2rder "os. -, ., -= and -=- A, issued in -EDB (se*uestration cases), or (e) other o##enses or #elonies whether simple or comple'ed with other crimes5 (.) the o##ender committin$ the o##enses in items (a), (b), (c) and (e) is a public o##icial or emplo%ee holdin$ an% o# the positions enumerated in para$raph A o# ection =5 and (/) the o##ense committed is in relation to the o##ice. Thus, #or the andi$anba%an to have e'clusive (urisdiction, it is essential that the #acts showin$ the intimate relation between the o##ice o# the o##ender, a ma%or who holds a salar% $rade level .9, and the dischar$e o# o##icial duties be alle$ed in the in#ormation. The (urisdiction o# a court is determined b% the alle$ations in the complaint or in#ormation, and not b% the evidence presented b% the parties at the trial. It does not thus su##ice to merel% alle$e in the in#ormation that the crime char$ed was committed b% the o##ender in relation to his o##ice or that he too4 advanta$e o# his position as these are conclusions o# law.
The speci#ic #actual alle$ations in the in#ormation that would indicate the close intimac% between the dischar$e o# the o##enderHs o##icial duties and the commission o# the o##ense char$ed, in order to *uali#% the crime as havin$ been committed in relation to public o##ice are controllin$. ()da4a v. Sandiganba%an, <( $57++6, 0,.2+.2005) 2. Aor purposes o# ac*uisition o# (urisdiction b% the andi$anba%an, the re*uirement imposed b% ?epublic Act "o. D.=E that the o##ense be 7committed in relation8 to the o##enderHs o##ice is entirel% distinct #rom the concept o# 7ta4in$ advanta$e o# oneHs position8 as provided under Articles -9- (Falsification b% public officer, emplo%ee or notar% or ecclesiastic minister) and -9. (Falsification b% private individuals and use of falsified documents) o# the ?evised :enal Code. The o##ender under Article -9. must be a private individual or ma%be a public o##icer, emplo%ee or notar% public who does not 7ta4e advanta$e o# his o##icial position.8 . +nder Article -9-, an essential element o# the crime is that the act o# #alsi#ication must be committed b% a public o##icer, emplo%ee or notar% who 7ta4es advanta$e o# his o##icial position.8 The o##ender 7ta4es advanta$e o# his o##icial position8 in #alsi#%in$ a document when, (-) he has the dut% to ma4e or to prepare or otherwise intervene in the preparation o# the document5 or (.) he has the o##icial custod% o# the document which he #alsi#ies. ()da4a v. Sandiganba%an, <( $57++6, 0,.2+.2005) 3. Aor purposes o# vestin$ (urisdiction with the andi$anba%an, the local elective o##icial who holds a position o# &rade .9 under the 3ocal &overnment Code o# -EE- must have committed the o##ense char$ed in relation to the o##ice. Aor an o##ense to be committed in relation to the o##ice, the relation between the crime and the o##ice must be direct and not accidental, in that in the le$al sense, the o##ense can not e'ist without the o##ice. As an e'ception to this rule, the Court held that althou$h public o##ice is not an element o# an o##ense char$ed, as lon$ as the o##ense char$ed in the in#ormation is intimatel% connected with the o##ice and is alle$ed to have been perpetrated while the accused was in the per#ormance, thou$h improper or irre$ular, o# hisG her o##icial #unctions, there bein$ no personal motive to commit the crime and had the accused would not have committed it had he not held the a#oresaid o##ice, the accused is held to have been indicted #or 7an o##ense committed in relation8 to his o##ice. @owever, even i# public o##ice is not an essential element o# the o##ense o# obstruction o# (ustice under ection -(b) o# :.D. -D.E but could have been committed had said ma%or not held the o##ice o# the ma%or, said o##icial is sub(ect to the (urisdiction o# the andi$anba%an. The ma%or I sweat, I bleed, I soar Service, Sacrifice, Excellence 9- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
in the course o# hisG her dut% as )a%or, who is tas4ed to e'ercise $eneral and operational control and supervision over the local police #orces, used hisG her in#luence, authorit% and o##ice to call and command members o# the municipal police. ((odrigue4 v. Sandiganba%an, <( $7$,$0, 03.03.2007) 4. The andi$anba%an has ori$inal (urisdiction over a member o# the an$$unian$ :anlun$sod, who was char$ed with violation o# ection /(e) o# the Anti-&ra#t and Corrupt :ractices Act. ;iolation o# ?epublic Act "o. /C-E committed b% o##icials in the e'ecutive branch with alar% &rade .9 or hi$her, and the o##icials speci#icall% enumerated in (a) to ($) o# ection = a.(-) o# :.D. "o. -BCB, as amended b% ection . o# ?ep. Act "o. 9E9<, re$ardless o# their salar% $rades, such as provincial and cit% elective o##icials, li4ewise #all within the ori$inal (urisdiction o# the andi$anba%an. (1nding v. Sandiganba%an, <( $7307,, 0,.$7.2007) 2I. 7,,ect o, 3eAelection The re-election o# a local o##icial bars the continuation o# the administrative case a$ainst him, inasmuch as the re-election o# the o##icial is tantamount to condonation b% the people o# whatever past misdeeds he ma% have committed. ()alinao v. ?e%es, .<< C?A B-B) In ;ingating v. Comelec, 2002, the respondent )a%or, havin$ been #ound $uilt% o# the administrative char$es and ordered removed #rom o##ice, had seasonabl% #iled a motion #or reconsideration with the an$$unian :anlalawi$an, and no action on his motion was ta4en, then the decision o# the an$$unian :anlalawi$an never became #inal. A#ter the respondent was re-elected, he ma% no lon$er be removed #rom o##ice #or the administrative o##ense. /. A##ointive Loc%l O,,ici%ls 1. 3es#onsi-ilit* ,or ($m%n reso$rces %n" "evelo#ment The local chie# e'ecutive shall be responsible #or human resources and development in his unit and shall ta4e all personnel actions in accordance with the Constitution, pertinent laws, includin$ such policies, $uidelines and standards as the Civil ervice Commission ma% establish5 :rovided that the local chie# e'ecutive ma% emplo% emer$enc% or casual emplo%ees or laborer paid on a dail% wa$e or piecewor4 basis and hired throu$h (ob orders #or local pro(ects authori>ed b% the san$$unian concerned, without need o# approval or attestation b% the Civil ervice Commission, as lon$ as the said emplo%ment shall not e'ceed B months. a) In De (ama v. C), 200$, it was held that the constitutional prohibition on so-called midni$ht appointments speci#icall% those made within two months immediatel% prior to the ne't presidential elections, applies onl% to the :resident or to Actin$ :resident. There is no law that prohibits local elective o##icials #rom ma4in$ appointments durin$ the last da%s o# their tenure absent #raud on their part, when such appointments are not tainted b% irre$ularities or anomalies which breach laws and re$ulations $overnin$ appointments. ') The :rovincial &overnor is without authorit% to desi$nate the petitioner as Assistant :rovincial Treasurers #rom a list o# recommendees o# the :rovincial &overnor. (Dimaandal v. C2A, .E- C?A /..) 2. O,,ici%ls common to %ll M$nici#%lities5 Cities %n" Provinces (?A 9-BC, ection =BE-=EC) -. ecretar% to the an$$unian .. Treasurer /. Assessor =. Accountant <. Bud$et 2##icer B. :lannin$ and Development Coordinator 9. !n$ineer D. @ealth 2##icer E. Civil ?e$istrar -C. Administrator --. 3e$al 2##icer -.. A$riculturist -/. ocial 0el#are and Development 2##icer -=. !nvironment and "atural ?esources 2##icer -<. Architect -B. In#ormation 2##icer -9. Cooperatives 2##icer -D. :opulation 2##icer -E. ;eterinarian .C. &eneral ervices 2##icer K"ote, In the baran$a%, the mandated appointed o##icials are the Baran$a% ecretar% and the Baran$a% Treasurer, althou$h other o##icials o# the baran$a% ma% be appointed b% the punon$ baran$a%.L 3. A"ministr%tive /isci#line Investi$ation and ad(udication o# administrative complaints a$ainst appointive local o##icials and emplo%ees as well as their suspension and removal shall be in accordance with the civil service law and rules and other pertinent laws. a) :reventive uspension. The local chie# e'ecutive ma% preventivel% suspend #or a period not e'ceedin$ BC da%s an% subordinate o##icial or emplo%ee under his authorit% pendin$ investi$ation i# the char$e a$ainst such o##icial or emplo%ee involves dishonest%, oppression or $rave misconduct or ne$lect in the per#ormance o# dut%, or i# there is reason to believe that the respondent is $uilt% o# the char$es which would warrant his removal #rom the service. ') Disciplinar% Iurisdiction. !'cept as otherwise provided b% law, the local chie# e'ecutive ma% impose the penalt% o# removal #rom service, demotion in ran4, suspension #or not more than - %ear without pa%, #ine in an amount not e'ceedin$ B monthsH salar%, or I sweat, I bleed, I soar Service, Sacrifice, Excellence 9. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
reprimand. I# the penalt% imposed is suspension without pa% #or not more than /C da%s, his decision shall be #inal5 i# the penalt% imposed is heavier, the decision shall be appealable to the CC which shall decide the appeal within /C da%s #rom receipt thereo#. @owever, it is not the Cit% )a%or, but the Cit% Treasurer who e'ercises disciplinar% authorit% over a Cit% ?evenue 2##icer. As head o# the 2##ice o# the Treasurer, and ?evenue 2##icer bein$ an o##icer under him, the #ormer ma% validl% investi$ate the said ?evenue 2##icer and place him under preventive suspension. (&arcia v. :a(aro, .CC.) HII. A$tonomo$s 3e)ions NOT7' As o# this writin$, onl% one autonomous re$ion, that o# )uslim )indanao, has been established. (The 2r$anic Act #or the autonomous re$ion o# the Cordilleras #ailed to obtain the necessar% number o# votes because onl% one province approved the 2r$anic Act. An autonomous re$ion must have at least two provinces. It is however, still possible #or an 2r$anic Act #or the Cordilleras to be approved at some #uture date.) Article X Section 15. There shall be created autonomous re$ions in )uslim )indanao and in the Cordilleras consistin$ o# provinces, cities, municipalities, and $eo$raphical areas sharin$ common and distinctive historical and cultural herita$e, economic and social structures, and other relevant characteristics within the #ramewor4 o# this Constitution and the national soverei$nt% as well as territorial inte$rit% o# the ?epublic o# the :hilippines. A. 3e%sons +e(in" t(e Cre%tion o, A$tonomo$s 3e)ions -. The creation o# a situation which will allow each culture to #lourish unhampered b% the dominance o# other cultures and thereb% to contribute more e##ectivel% to national pro$ress. 2. To #urnish possible solution to the re$ional con#licts that have arisen partl% #rom cultural diversit%. -=< 14$ Bernas Primer at 433 (2006 ed.) &' Is an autonomous re$ion an independent nation within the nation1 A' "o, an autonomous re$ion is or$ani>ed 7within the #ramewor4 o# this Constitution and the national soverei$nt%.8 -=B +. Presi"entMs ?ener%l S$#ervision Section 16. The :resident shall e'ercise $eneral supervision over autonomous re$ions to ensure that laws are #aith#ull% e'ecuted. C. Po;ers Not ?iven to A$tonomo$s 3e)ions Section 1. All powers, #unctions, and responsibilities not $ranted b% this Constitution or b% law to the autonomous re$ions shall be vested in the "ational &overnment. Some o, t(e #o;ers ;(ic( %re NOT )iven to %$tonomo$s re)ions' -. Iurisdiction over national de#ense and securit%5 .. Aorei$n relations and #orei$n trade5 /. Customs and tari##, *uarantine =. Currenc%, monetar% a##airs, #orei$n e'chan$e, ban4in$ and *uasi-ban4in$, e'ternal borrowin$5 <. :osts and communications5 B. Air and sea transport 9. Immi$ration and deportation5 D. Citi>enship and naturali>ation5 E. &eneral auditin$. /. 7n%ctment o, Or)%nic ActsJ Cre%tion o, A$tonomo$s 3e)ion Section 1!. The Con$ress shall enact an or$anic act #or each autonomous re$ion with the assistance and participation o# the re$ional consultative commission composed o# representatives 146 Bernas Primer at 434 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence 9/ FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
appointed b% the :resident #rom a list o# nominees #rom multi- sectoral bodies. The or$anic act shall de#ine the basic structure o# $overnment #or the re$ion consistin$ o# the e'ecutive department and le$islative assembl%, both o# which shall be elective and representative o# the constituent political units. The or$anic acts shall li4ewise provide #or special courts with personal, #amil%, and propert% law (urisdiction consistent with the provisions o# this Constitution and national laws. The creation o# the autonomous re$ion shall be e##ective when approved b% ma(orit% o# the votes cast b% the constituent units in a plebiscite called #or the purpose, provided that onl% provinces, cities, and $eo$raphic areas votin$ #avorabl% in such plebiscite shall be included in the autonomous re$ion. Section 16. The #irst Con$ress elected under this Constitution shall, within ei$hteen months #rom the time o# or$ani>ation o# both @ouses, pass the or$anic acts #or the autonomous re$ions in )uslim )indanao and the Cordilleras. 1. 7n%ctment o, Or)%nic Acts As preliminar% step towards the establishment o# the autonomous re$ions, Con$ress is commanded to #ormulate an 2r$anic Act #or each o# the two. The Constitution commands the Con$ress to enact an 2r$anic Act which will be the #undamental law o# the re$ions. &' 0hat law will be the charter o# the autonomous re$ions1 A' Their charter will be the Ogani! A!t which will be passed b% Con$ress in the manner and accordin$ to the substantive speci#ications contained in ection -D. &' I# the #irst Con$ress #ails to pass the 2r$anic Act within -D months, will it no lon$er be able to pass such Act later1 A' Jes. The #ailure o# Con$ress to act cannot be allowed to #rustrate the clear intent o# the electorate. The relativel% short period is prescribed in order to emphasi>e the ur$enc% o# creatin$ autonomous re$ions. &' The le$alit% o# ?A B9/=, the 2r$anic Act o# )indanao, is challen$ed and the plebiscite called in -/ provinces o# )indanao #or the rati#ication o# the 2r$anic Act is challen$ed #or bein$ ille$al in that aspects o# the 2r$anic Act violate the Tripoli A$reement which is a valid international a$reement. Decide. A' !ven i# the Tripoli A$reement were an international a$reement, the #act would not a##ect the validit% o# the 2r$anic Act. International a$reements as internal law are on the same le$al level as statutes and whichever as between the two, international a$reement or statute, comes later supersedes the other. (Abbas v. Comelec, -EDE) N%t$re o, Or)%nic Act. The 2r$anic Act itsel# in le$al cate$or% is a statute. @owever, it is more than an ordinar% statute because it en(o%s a##irmation b% a plebiscite. @ence, its provision cannot be amended b% ordinar% statute. (:andi v. CA, .CC.) 2. Cre%tion o, A$tonomo$s 3e)ion The enactment o# the 2r$anic Act does not %et create the autonomous re$ion. The creation o# the autonomous re$ions ta4es place onl% ;(en t(e Ogani! A!t is atified 7b% a ma(orit% o# the votes cast b% the constituent units in a plebiscite called #or the purpose.8 &'Aor the e##ective creation o# the automous re$ion is it re*uired that the total votes cast in all the units where the plebiscite is called must %ield a ma(orit% o# a##irmative votes1 A' "o. It is enou$h #or the creation o# the autonomous re$ion that some 7provinces, cities, and $eo$raphic areas8 vote #avorabl%. In other words, as an e'amination o# the constitutional te't shows, #or e##ective rati#ication it is not necessar% to achieve a 7double ma(orit%.8 (Abbas v. Comelec, -EDE) 8(%t %re%s -ecome #%rt o, t(e A$tonomo$s 3e)ion= 2nl% those areas which vote in #avor o# the 2r$anic Act. And since the Constitution spea4s o# 7provinces,8 an autonomous re$ion has to consist o# more than one province. &' 0hat happens to the political subdivisions which do not vote #avorabl%1 I sweat, I bleed, I soar Service, Sacrifice, Excellence 9= FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
A' The% remain in the administrative re$ion to which the% belon$. (Abbas v. Comelec, -EDE) &' Can constituent units which vote ne$ativel% in the #irst plebiscite under this Constitution (oin the autonomous re$ion at some #uture time1 A' It is submitted that the% ma% throu$h a subse*uent plebiscite. -=9 &' )a% the :rovince o# I#u$ao, which was the onl% province which voted #or a Cordillera Autonomous ?e$ion, constitute the Cordillera Autonomous ?e$ion1 A' "o, the Constitution sa%s that an autonomous re$ion shall consists o# provinces, cities and municipalities, and there#ore, not (ust on province. (2rdillo v. Comelec, -EEC) &' Can a tribal court o# the Cordillera Bodon$ Administration render a valid e'ecutor decision in a land dispute1 A' "o. In the Ianuar% /C, -EEC plebiscite, the creation o# the Cordillera Autonomous ?e$ion was re(ected b% all the provinces and cit% o# Cordillera re$ion e'cept I#u$ao province, hence the Cordillera Autonomous ?e$ion did not come to be. @ence, no autonomous re$ion was created. As a lo$ical conse*uence o# that, the Cordillera Bodon$ Administration created under !2 ..C as well as the indi$enous and special courts #or the indi$enous cultural communities o# the Cordillera re$ion do not e'ist. 7uch tribal courts are not a part o# the :hilippine Iudicial s%stem. The% do not posses (udicial power. 3i4e the pangBats or conciliation panels created b% :D -<CD in the baran$a%s, the% are advisor% and conciliator% bodies whose principal ob(ective is to brin$ to$ether parties to a dispute and persuade them to ma4e peace, settle, and compromise8 (pouses Badua v. Cordillera Bodon$ Administration, -EE-) /. 7n$mer%te" Po;ers o, A$tonomo$s 3e)ion Section 2I. 0ithin its territorial (urisdiction and sub(ect to the provisions o# this Constitution and national laws, the or$anic act o# autonomous re$ions shall provide #or le$islative powers over, 147 Bernas Primer at 436 (2006 ed.) (-) Administrative or$ani>ation5 (.) Creation o# sources o# revenues5 (/) Ancestral domain and natural resources5 (=) :ersonal, #amil%, and propert% relations5 (<) ?e$ional urban and rural plannin$ development5 (B) !conomic, social, and tourism development5 (9) !ducational policies5 (D) :reservation and development o# the cultural herita$e5 and (E) uch other matters as ma% be authori>ed b% law #or the promotion o# the $eneral wel#are o# the people o# the re$ion. &' 3e$islation passed b% the autonomous re$ions can come into con#lict with the Constitution. @ow are such con#licts to be resolved1 A' The Constitution should alwa%s prevail. (Aor instance, the #ull $amut o# reli$ious #reedom must be reco$ni>ed even in an area where a principal basis #or the autonom% is reli$ious homo$eneit%.) &' 3e$islation passed b% the autonomous re$ions can come into con#lict with national laws. @ow are such con#licts to be resolved1 A' There is no eas% answer as to which would prevail. The matter necessitates the serious wei$hin$ o# the values. It ma% even involve ad(ustment o# national laws in order to accommodate the constitutional desire #or local autonom% in its various aspects. (And indeed con#lict will almost naturall% have to be e'pected because national laws are $enerall% a re#lection o# the nationall% predominant culture. But, althou$h ection .C sa%s that local le$islative power should be sub(ect to national laws, national laws themselves are sub(ect to the Constitution one o# those state policies is to ensure the autonom% o# local $overnments.) Con#licts can also arise in the application o# local laws. This can be particularl% crucial in the case o# personal and propert% laws #or those belon$in$ to autonomous re$ions but actin$ outside the autonomous territor% and also #or those who do not belon$ to autonomous re$ions but are actin$ within autonomous territor%. Thus, con#lict o# law principles could develop could develop within our one national municipal law. &' Is the enumeration in ection .C e'haustive o# what the 2r$anic Act ma% $ive to the autonomous re$ions1 A' "o. ee ection -9. The enumeration in ection .C is intended as a political si$nal that indeed the Constitution ta4es the matter o# re$ional autonom% seriousl%. 7. Pe%ce %n" Or"er5 /e,ense %n" N%tion%l Sec$rit* Section 21. The preservation o# peace and order within the re$ions shall be the responsibilit% o# the local police a$encies which shall be or$ani>ed, maintained, supervised, and utili>ed in accordance with applicable laws. The de#ense and securit% o# the re$ions shall be the responsibilit% o# the "ational &overnment. ection .- ma4es a distinction between the problem o# internal peace and order and the problem o# national de#ense and securit%. The #ormer, understood as the problem o# ordinar% criminalit% which should normall% be the concern o# police authorities, is the responsibilit% o# the local police a$encies. I sweat, I bleed, I soar Service, Sacrifice, Excellence 9< FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
@owever, the or$ani>ation, maintenance, and supervision o# police a$encies ma% in certain circumstances be be%ond the capabilities o# local $overnments. In such instances, the :resident, as Commander-in-Chie# ma% order the armed #orces into the autonomous re$ion to per#orm whatever ma% be necessar%. As to national de#ense and securit%, that is, as to dealin$ with threats to the stabilit%, inte$rit%, and survival o# the nation, this clearl% is the primar% responsibilit% o# the national $overnment. HIII. InterA?overnment%l 3el%tions 14! A. N%tion%l ?overnment 1. Po;er o, ?ener%l S$#ervision The :resident shall e'ercise $eneral supervision over local $overnment units to ensure that their acts are within the scope o# their prescribed powers and #unctions. The :resident shall e'ercise supervisor% authorit% directl% over provinces, hi$hl% urbani>ed cities and independent component cities5 throu$h the province with respect to component cities and municipalities5 and throu$h the cit% and municipalit% with respect to the baran$a%s. 2. 7n%ctment o, Or)%nic Acts "ational a$encies and o##ices with pro(ect implementation #unctions shall coordinate with one another and with the local $overnment units concerned in the dischar$e o# these #unctions. The% shall ensure the participation o# local $overnment units both in the plannin$ and the implementation o# said national pro(ects. 3. 7n%ctment o, Or)%nic Acts "o pro(ect or pro$ram shall be implemented b% $overnment authorities unless the consultations mentioned in ections .(c) and .B are complied with, and prior approval o# the san$$unian concerned is obtained5 :rovided, that occupants in areas where such pro(ects are to be implemented shall not be evicted unless appropriate relocation sites have been provided. +. P(ili##ine N%tion%l Police The e'tent o# operational supervision and control o# local chie# e'ecutives over the police #orce, #ire protection unit and (ail mana$ement personnel assi$ned in their respective (urisdictions shall be $overned b% the provisions o# ?A BE9<, otherwise 4nown as the 7DI3& Act o# -EEC.8 C. InterA)overnment%l 3el%tions 14" 0ntonio 3achura, -utline on Political a!, 603 (2006) -. The province, throu$h the $overnor, shall ensure that ever% component cit% and municipalit% within its territorial (urisdiction acts within the scope o# its prescribed powers and #unctions. @i$hl% urbani>ed cities and independent component cities shall be independent o# the province. !'cept as otherwise provided under the Constitution and special statutes, the $overnor shall review all e'ecutive orders promul$ated b% the component cit% or municipal ma%or within his (urisdiction. The cit% or municipal ma%or shall review all e'ecutive orders promul$ated b% the punon$ baran$a% within his (urisdiction. I# the $overnor or the cit% or municipal ma%or #ails to act on said e'ecutive orders within /C da%s #rom submission, the same shall be deemed consistent with law and there#ore valid. .. In the absence o# the le$al o##icer, the municipal $overnment ma% secure the opinion o# the provincial le$al o##icer, and in the absence o# the latter, that o# the provincial prosecutor on an% le$al *uestion a##ectin$ the municipalit%. /. The cit% or municipalit%, throu$h the cit% or municipal ma%or, shall e'ercise $eneral supervision over component baran$a%s to ensure that said baran$a%s acts within the scope o# their prescribed powers and #unctions. =. 3ocal $overnment units ma%, throu$h appropriate ordinances, $roup themselves, consolidate or coordinate their e##orts, services and resources #or purposes commonl% bene#icial to them. In support o# such underta4in$s, the local $overnment units ma%, upon approval b% the san$$unian a#ter a public hearin$ conducted #or the purpose, contribute #unds, real estate, e*uipment, and other 4inds o# propert% and appoint or assi$n personnel under such terms and conditions as ma% be a$reed upon b% th participatin$ local units. /. Peo#leMs %n" NonA?overnment%l Or)%niG%tions -. 3ocal $overnment units shall promote the establishment and operation or peopleHs and non-$overnmental or$ani>ations to become active partners in the pursuit o# local autonom%. .. 3ocal $overnment units ma% enter into (oint ventures and such other cooperative arran$ements with peopleHs and non- $overnmental or$ani>ations to en$a$e in the deliver% o certain basic services, etc. /. A local $overnment unit ma%, throu$h its local chie# e'ecutive and with the concurrence o# the san$$unian concerned, provide assistance, #inancial or otherwise, to such peopleHs and non-$overnmental or$ani>ations #or economic, sociall%-oriented, environmental I sweat, I bleed, I soar Service, Sacrifice, Excellence 9B FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
or cultural pro(ects to be implemented within its territorial (urisdiction. 7. M%n"%te" Loc%l A)encies -. The 3ocal chool Board (ections ED--C-) The C held that the pecial !ducation Aund (!A) ma% be used #or the pa%ment o# salaries and personnel-related bene#its o# the teachers appointed b% the province in connection with the establishment and maintenance o# e'tension classes and operation and maintenance o# public schools. @owever, the #und ma% not be used to de#ra% e'penses #or colle$e scholarship $rants. The $rant o# $overnment scholarship to poor but deservin$ students was omitted in ections -CC(c) and .9. o# the 3ocal &overnment. (C2A o# Cebu v. :rovince o# Cebu, .CC-) .. The 3ocal @ealth Board (ection -C.--C<) /. The 3ocal Development Council (ections -CB---<) =. The 3ocal :eace and 2rder Council (ection --B) 4. Settlement o, +o$n"%r* /is#$tes -. Boundar% disputes between and amon$ local $overnment units shall, as much as possible, be settled amicabl%. The rules on settlement o# disputes are, a) Involvin$ two or more baran$a%s in the same cit% or municipalit%, re#erred to the san$$unian$ panlun$sod or sa$$unian$ ba%an. b) Involvin$ two or more municipalities in the same province, re#erred to the san$$unian panlalawi$an. The C declared that the ?TC was correct when it ordered a relocation surve% to determine to which municipalit% the baran$a% belon$ed. The a$reement between the municipalities o# Iimene> and inacaban which was approved b% the an$$unian :anlalawi$an is invalid as it would e##ectivel% amend !2 .<D (creatin$ the municipalit% o# inacaban). The power o# the an$$unian$ :anlalawi$an to settle boundar% disputes is limited to implementin$ the law creatin$ the municipalit%5 and an% alteration o# boundaries not in accordance with the law would e'ceed this authorit%. c) Involvin$ municipalities or component cities in di##erent provinces, (ointl% re#erred to the san$$unians o# the provinces concerned. d) Involvin$ a component cit% or municipalit% on one hand and a hi$hl% urbani>ed cit% on the other, or two or more hi$hl% urbani>ed cities, (ointl% re#erred to the respective san$$unians o# the parties. 2. In the event the san$$unian #ails to e##ect a settlement within BC da%s #rom the date the dispute was re#erred to it, it shall issue a certi#ication to this e##ect. The dispute shall then be #ormall% tried b% the san$$unian concerned which shall decide the issue within BC da%s #rom the date o# certi#ication. /. 0ithin the time and manner prescribed b% the ?ules o# Court, an% part% ma% elevate the decision o# the san$$unian concerned to the proper ?TC havin$ (urisdiction over the area in dispute which shall decide the appeal within - %ear #orm the #ilin$ thereo#. Inasmuch as ection --D o# the 3ocal &overnment Code does not provide #or the o##ice or the a$enc% vested with the (urisdiction over the settlement o# boundar% disputes between a municipalit% and an independent component cit% in the same province, under B: -.E, as amended b% ?A 9BE-, it should be the ?TC in the province that can ad(udicate the controvers%. A#ter all, ?TC has $eneral (urisdiction to ad(udicate all controversies, e'cept onl% those withheld #rom its plenar% powers. ()unicipalit% o# Nanan$a v. )adrona, .CC/) 4. The importance o# drawin$ with precise stro4es the territorial boundaries o# a local unit o# $overnment cannot be overemphasi>ed. The boundaries must be clear #or the% de#ine the limits o# the territorial (urisdiction o# the local $overnment unit. It can le$itimatel% e'ercise powers o# $overnment onl% within the limits o# its territorial (urisdiction. Be%ond these limits, its acts are ultra vires. "eedless to state, an% uncertaint% in the boundaries o# local $overnment units will sow costl% con#licts in the e'ercise o# $overnment power which ultimatel% will pre(udice the peopleHs wel#are. ()ariano v. Comelec) +A3 &U7STION D2II5E' Boundar% Dispute ?esolution5 3&+5 ?TCHs Iurisdiction R &'There was a boundar% dispute between Duenas, a municipalit%, and :assi, an independent component cit%, both o# the same province. tate how the two local $overnment units should settle their boundar% dispute. (<S) S$))este" Ans;er, Boundar% disputes between local $overnment units should, as much as possible, be settled amicabl%. A#ter e##orts at settlement #ail, then the dispute ma% be brou$ht to the appropriate ?e$ional Trial Court in the said province. ince the 3ocal &overnment Code is silent as to what bod% has e'clusive (urisdiction over the settlement o# boundar% disputes between a municipalit% and an independent component cit% o# the same province, the ?e$ional Trial Courts have $eneral (urisdiction to ad(udicate the said controvers%. ()un. o# Nanan$a v. )adrona, &.?. "o. -=-/9<, April /C, .CC/) IX. Loc%l Initi%tive %n" 3e,eren"$m A. Loc%l Initi%tive I sweat, I bleed, I soar Service, Sacrifice, Excellence 99 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
1. /e,inition o, Loc%l Initi%tive It is the le$al process whereb% the re$istered voters o# a local $overnment unit ma% directl% propose, enact or amend an% ordinance. It ma% be e'ercised b% all re$istered votes or the provinces, cities, municipalities and baran$a%s. 2. Proce"$re a) "ot less than .,CCC re$istered voters in the re$ion, -,CCC re$istered voters in case o# provinces and cities5 -CC voters in case o# municipalities, and <C in case o# baran$a%s, ma% #ile a petition with the san$$unian concerned proposin$ the adoption, enactment, repeal or amendment o# an ordinance. E?A B9/<, ection -/) b) I# no #avorable action is ta4en b% the san$$unian concerned within /C da%s #orm presentation, the proponents, throu$h their dut% authori>ed and re$istered representatives, ma% invo4e their power o# initiative, $ivin$ notice thereo# to the san$$unian concerned. c) The prposition shall be numbered seriall%, startin$ #rom numeral I. Two or more propositions ma% be submitted in an initiative. The Comelec or its desi$nated representative shall e'tend assistance in the #ormulation o# the proposition. d) :roponents shall have EC da%s Kin case o# provinces and citiesL, BC da%s Kin case o# municipalitiesL, and /C da%s Kin case o# baran$a%sL #rom notice mentioned in (b) to collect the re*uired number o# si$natures. e) The petition shall be si$ned be#ore the election re$istrar or his desi$nated representative, and in the presence o# a representative o# the proponent and a representative o# the san$$unian concerned in a public placein the local $overnment unit. #) +pon the lapse o# the period, the Comelec shall certi#% as to whether or not the re*uired number o# si$natures has been obtained. Aailure to obtain the re*uired number o# si$natures de#eats the proposition. $) I# the re*uired number is obtained, the Comelec shall set a date #or the initiative durin$ which the proposition is submitted to the re$istered voters in the local $overnment unit #or their approval within BC da%s Kin case o# provincesL, =< da%s Kin case o# municipalitiesL, and /C da%s Kin case o# baran$a%sL #rom the date o# certi#ication b% the Comelec. The initiative shall be held on the date set, a#ter which the results thereo# shall be certi#ied and proclaimed b% the Comelec. h) I# the proposition is approved b% a ma(orit% o# the votes cast, it shall ta4e e##ect -< da%s a#ter certi#ication b% the Comelec as i# a##irmative action had been ta4en thereon b% the san$$uninan and local chie# e'ecutive concerned. 3. Limit%tions On Loc%l Initi%tive' i. The power o# local initiative shall not be e'ercised more than once a %ear. ii. Initiative shall e'tend onl% to sub(ects or matters which are within the le$al powers o# the san$$unian to enact. iii. I# at an% time be#ore the initiative is held, the san$$unian concerned adopts in toto the proposition presented and the local chie# e'ecutive approves the same, the initiative shall be cancelled. @owever, those a$ainst such action ma%, i# the% so desire, appl% #or initiative in the manner herein provided. On t(e S%n))$ni%n An% proposition or ordinance approved throu$h an initiative and re#erendum shall not be repealed, modi#ied or amended b% the san$$unian within B months #rom the date o# approval thereo#, and ma% be amended, modi#ied or repealed within / %ears therea#ter b% a vote o# X o# all its members. In case o# baran$a%s, the period shall be -D months a#ter the approval thereo#. +. Loc%l 3e,eren"$m 1. /e,inition o, Loc%l 3e,eren"$m. The le$al process whereb% the re$istered voters o# the local $overnment units ma% approve, amend or re(ect an% ordinance enacted b% the san$$unian. .. The local re#erendum shall be held under the control and direction o# the Comelec within BC da%s Kin case o# provincesL, =< da%s Kin case o# municipalitiesL and /C da%s Kin case o# baran$a%sL. The Comelec shall certi#% and proclaim the results o# the said re#erendum. C. A$t(orit* o, Co$rts "othin$ in the #ore$oin$ shall preclude the proper courts #rom declarin$ null and void an% proposition approved pursuant hereto #or violation o# the Constitution or want o# capacit% o# the san$$unian concerned to enact said measure. ((ead Case Digests in @ages 752'502 of :acBEs Compendium (2006)) I sweat, I bleed, I soar Service, Sacrifice, Excellence 9D FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Article XI ACCOUNTA+ILITL O4 PU+LIC O44IC73S I. STATEMENT O/ POLIC; (ection -) II. IMPEAC@MENT (ections . M /) III. SANDI&AN,A;AN (ection =) IV. OM,UDSMAN (ection <,B,D--=) V. SPECIAL PROSECUTOR (ection 9) VI. ILL5&OTTEN <EALT@ (ection -<) VII. RESTRICTION ON LOANS(ection -B) VIII.TRANSPARENC; RULE (ection -9) I=. ALLE&IANCE TO T@E STATE AND T@E CONSTITUTION (ection -D) I. St%tement o, Polic* Section 1. :ublic o##ice is a public trust. :ublic o##icers and emplo%ees must, at all times, be accountable to the people, serve them with utmost responsibilit%, inte$rit%, lo%alt%, and e##icienc%5 act with patriotism and (ustice, and lead modest lives. A. P$-lic O,,ice 1. /e,inition The ri$ht, authorit% or dut%, created and con#erred b% law, b% which #or a $iven period, either #i'ed b% law or endurin$ at the pleasure o# the creatin$ power, an individual is invested with some soverei$n power o# $overnment to be e'ercised b% him #or the bene#it o# the public. (Aernande> v. to. Tomas, -EE<) 2. 7lements -. Created b% law or b% authorit% o# law5 .. :ossess a dele$ation o# a portion o# the soverei$n powers o# $overnment, to be e'ercised #or the bene#it o# the public5 /. :owers con#erred and duties imposed must be de#ined, directl% or impliedl%, b% the le$islature or b% le$islative authorit%5 =. Duties must be per#ormed independentl% and without the control o# a superior power other than the law, unless the% be those o# an in#erior or subordinate o##ice created or authori>ed b% the le$islature, and b% it placed under the $eneral control o# a superior o##ice or bod%5 and $. )ust have permanence o# continuit%. -=E 3. Cre%tion :ublic o##icers are created, a. B% the Constitution 14# 0ntonio 3achura, -utline on Political a!, 423 (2006) b. B% valid statutor% enactments (e.$. 2##ice o# the Insurance Commissioner) c. B% authorit% o# law (e.$. Davide Commission) -<C +. P$-lic O,,icer A person who holds a public o##ice. -<- C. P$-lic O,,ice %s P$-lic Tr$st 39 0hat is meant b% 7public o##ice is a public trust81 A9 The basic idea o# $overnment in the :hilippines is that o# a representative $overnment the o##icers bein$ mere a$ents and not rulers o# the peopleO where ever% o##icer accepts o##ice pursuant to the provisions o# law and holds the o##ice as a trust #or the people whom he represents. (Iustice )alcom in Corne(o v. &abriel, =- :hil -DD, -E.C) -<. &' 0hat does the command to lead modest lives entail1 A' !ven i# the public o##icer is independentl% wealth%, he should not live in a manner that #launts wealth. -</ II. Im#e%c(ment Section 2. The :resident, the ;ice-:resident, the )embers o# the upreme Court, the )embers o# the Constitutional Commissions, and the 2mbudsman ma% be removed #rom o##ice on impeachment #or, and conviction o#, culpable violation o# the Constitution, treason, briber%, $ra#t and corruption, other hi$h crimes, or betra%al o# public trust. All other public o##icers and emplo%ees ma% be removed #rom o##ice as provided b% law, but not b% impeachment. Section 3. (-) The @ouse o# ?epresentatives shall have the e'clusive power to initiate all cases o# impeachment. (.) A veri#ied complaint #or impeachment ma% be #iled b% an% )ember o# the @ouse o# ?epresentatives or b% an% citi>en upon a resolution or endorsement b% an% )ember thereo#, which shall be included in the 2rder o# Business within ten session da%s, and re#erred to the proper Committee within three session da%s therea#ter. The Committee, a#ter hearin$, and b% a ma(orit% vote o# all its )embers, shall submit its report to the @ouse within si't% session da%s #rom such re#erral, to$ether with the correspondin$ resolution. The resolution shall be calendared #or consideration b% the @ouse within ten session da%s #rom receipt thereo#. (/) A vote o# at least one-third o# all the )embers o# the @ouse shall be necessar% either to a##irm a #avorable resolution with the Articles o# Impeachment o# the Committee, or override its contrar% resolution. The vote o# each )ember shall be recorded. 1$0 0ntonio 3achura, -utline on Political a!, 423 (2006) 1$1 0ntonio 3achura, -utline on Political a!, 423 (2006) 1$2 Bernas Primer at 440 (2006 ed.) 1$3 Bernas Primer at 440 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence 9E FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
(=) In case the veri#ied complaint or resolution o# impeachment is #iled b% at least one-third o# all the )embers o# the @ouse, the same shall constitute the Articles o# Impeachment, and trial b% the enate shall #orthwith proceed. (<) "o impeachment proceedin$s shall be initiated a$ainst the same o##icial more than once within a period o# one %ear. (B) The enate shall have the sole power to tr% and decide all cases o# impeachment. 0hen sittin$ #or that purpose, the enators shall be on oath or a##irmation. 0hen the :resident o# the :hilippines is on trial, the Chie# Iustice o# the upreme Court shall preside, but shall not vote. "o person shall be convicted without the concurrence o# two-thirds o# all the )embers o# the enate. (9) Iud$ment in cases o# impeachment shall not e'tend #urther than removal #rom o##ice and dis*uali#ication to hold an% o##ice under the ?epublic o# the :hilippines, but the part% convicted shall nevertheless be liable and sub(ect to prosecution, trial, and punishment, accordin$ to law. (D) The Con$ress shall promul$ate its rules on impeachment to e##ectivel% carr% out the purpose o# this section. A. /e,inition o, Im#e%c(ment A national in*uest into the conduct o# public men. -<= +. P$r#ose o, Im#e%c(ment The purpose o# impeachment is not to punish but onl% to remove an o##icer who does not deserve to hold o##ice. -<< C. Im#e%c(%-le O,,icers -. :resident .. ;ice-:resident /. Chie# Iustice and Associate Iustice o# the upreme Court =. Chairmen and members o# the Constitutional Commissions <. 2mbudsman Note' The list o# o##icers sub(ect to impeachment in ection . as worded is e'clusive. Mem-ers o, t(e S$#reme Co$rt The upreme Court said that the pecial :rosecutor cannot conduct an investi$ation into alle$ed misconduct o# a upreme Court (ustice, with the end view o# #ilin$ a criminal in#ormation a$ainst him with the andi$anba%an. A upreme Court Iustice cannot be char$ed in a criminal case or a disbarment proceedin$, because the ultimate e##ect o# either is to remove him #rom o##ice, and thus circumvent the provision on removal b% impeachment thus violatin$ his securit% o# tenure (In ?e, Airst Indorsement #rom @on. ?aul &on>ale>, A.). "o. DD-=- <=//) 1$4 0ntonio 3achura, -utline on Political a!, 34$ (2006) 1$$ Bernas Primer at 442 (2006 ed.) An impeachable o##icer who is a member o# the :hilippine bar cannot be disbarred #irst without bein$ impeached. (Iar*ue v. Desierto, .<C C?A --) -<B C. ?ro$n"s -. Culpable ;iolation o# the Constitution .. Treason, Briber% and &ra#t and Corruption /. 2ther @i$h Crimes or =. Betra%al o# :ublic Trust Note' The enumeration is e'clusive. C$l#%-le Hiol%tion o, t(e Constit$tion Culpable violation o# the Constitution is wron$#ul, intentional or will#ul disre$ard or #loutin$ o# the #undamental law. 2bviousl%, the act must be deliberate and motivated b% bad #aith to constitute a $round #or impeachment. )ere mista4es in the proper construction o# the Constitution, on which students o# law ma% sincerel% di##er, cannot be considered a valid $round #or impeachment. -<9 Tre%son Treason is committed b% an% person who, owin$ alle$iance to the &overnment o# the :hilippines, levies war a$ainst it or adheres to its enemies, $ivin$ them aid and com#ort. (?:C, Article --=) +ri-er* Briber% is committed b% an% public o##icer who shall a$ree to per#orm an ac, whether or not constitutin$ crime, or re#rain #rom doin$ an act which he is o##iciall% re*uired to do in connection with the per#ormance o# his o##icial duties, in consideration #or an% o##er, promise, $i#t or present received b% him personall% or throu$h the mediation o# another, or who shall accept $i#ts o##ered to him b% reason o# his o##ice. E?:C, Arts. .-C-.--) Ot(er <i)( Crimes Accordin$ to the special committee o# the @ouse o# ?epresentatives that investi$ated the impeachment char$es a$ainst :resident Fuirino, are supposed to re#er to those o##enses 7which, li4e treason and briber%, are o# so serious and enormous a nature as to stri4e at the ver% li#e or the orderl% wor4in$s o# the $overnment.8 This rather ambi$uous de#inition, assumin$ it is correct, would probabl% e'clude such o##enses as rape and murder which, althou$h as serious as treason and briber%, will not necessaril% stri4e at the orderl% wor4in$s, let alone li#e o# the $overnment. -<D ?r%,t %n" Corr$#tion &ra#t and corruption is to be understood in the li$ht o# the prohibited acts enumerated in the Anti-&rant 1$6 0ntonio 3achura, -utline on Political a!, 34$ (2006) 1$7 Cruz, Philippine Political a!, p.33$ 1$" Cruz, Philippine Political a!, p.33$ I sweat, I bleed, I soar Service, Sacrifice, Excellence DC FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
and Corrupt :ractices Act, which was in #orce at the time o# the adoption o# the Constitution. -<E +etr%*%l o, P$-lic Tr$st The -ED9 Constitution has added 7betra%al o# public trust,8 which means an% #orm o# violation o# the oath o# o##ice even i# such violation ma% not be criminall% punishable o##ense. -BC This is a catch-all to cover all manner o# o##enses unbecomin$ a public #unctionar% but not punishable b% the criminal statutes, li4e 7ine'cusable ne$li$ence o# dut%, t%rannical abuse o# authorit%, breach o# o##icial dut% b% mal#easance or mis#easance, cron%ism, #avoritism, obstruction o# (ustice. -B- /. Proce"$re Con$ress shall promul$ate its rules on impeachment to e##ectivel% carr% out the purpose. (ection /(D)) 1. Initi%tion The proceedin$ is initiated or be$ins, 2"en a %eified !omplaint A2it" a!!ompan$ing esolution o indosementC is filed and efeed to t"e Committee on -usti!e fo a!tion. This is the initiatin$ step which tri$$ers the series o# steps that #ollow. (Aransisco v. @ouse pea4er, .CC/) 2. Limit%tion on initi%tin) o, im#e%c(ment c%se The Constitution prohibits the initiation o# more than one 7impeachment proceedin$8 within one %ear. In Fransico v. !ouse of (epresentatives, the C said that considerin$ that the #irst impeachment complaint was #iled b% #ormer :resident !strada a$ainst Chie# Iustice Davide alon$ with seven associate (ustices on Iune C., .CC/ and re#erred to the @ouse Committee on Iustice on Au$ust C<, .CC/, the second impeachment complaint #iled b% some ?ep. Teodoro et. al., a$ainst the Chie# Iustice on 2ctober ./, .CC/, violates the constitutional prohibition a$ainst the initiation o# impeachment proceedin$s a$ainst the same impeachable o##icer within a one-%ear period. 3. Tri%l The enate shall have the sole power to tr% and decide all cases o# impeachment. 0hen sittin$ #or that purpose, the enators shall be on oath or a##irmation. 0hen the :resident o# the :hilippines is on trial, the Chie# Iustice o# the upreme Court shall preside, but shall not vote. A decision o# conviction must be concurred in b% at least two- thirds o# all the members o# the enate. 1$# Cruz, Philippine Political a!, p.336 160 Bernas Primer at 442 (2006 ed.) 161 Cruz, Philippine Political a!, p.336 4. Pen%lt* The penalt% which ma% be imposed 7shall not e'tend #urther than removal #rom o##ice and dis*uali#ication to hold an% o##ice under the ?epublic.8 -B. This penalt% is be%ond the reach o# the :residentHs power o# e'ecutive clemenc%, but does not place the o##icer be%ond liabilit% to criminal prosecution. (0hen criminall% prosecuted, there#ore, #or the o##ense which warranted his conviction on impeachment, the o##icer cannot plead the de#ense o# double (eopard%.) -B/ 5. 7,,ect o, Conviction ?emoval #rom o##ice and dis*uali#ication to hold an% o##ice under the ?epublic o# the :hilippines. But the part% convicted shall be liable and sub(ect to prosecution, trial and punishment accordin$ to law. 6. @$"ici%l 3evie; III. S%n"i)%n-%*%n Section 4. The present anti-$ra#t court 4nown as the andi$anba%an shall continue to #unction and e'ercise its (urisdiction as now or herea#ter ma% be provided b% law. A. Com#osition o, S%n"i)%n-%*%n +nder :D -BCB, it is composed o# a :residin$ Iustice and !i$ht Associate Iustices, with the ran4 o# Iustice o# the Court o# Appeals. It sits in three K/L divisions o# three members o# each. +. N%t$re o, S%n"i)%n-%*%n andi$anba%an is "2T a constitutional court. It is % st%t$tor* co$rt5 that is, it is created not onl% b% the Constitution but b% statute, althou$h its creation is mandated b% the Constitution. -B= C. @$ris"iction o, S%n"i)%n-%*%n Ori)in%l @$ris"iction ;iolations o# ?A /C-E (A&C:A) as amendedJ ?A -/9E5 and Chapter II, ection ., Titile ;II, Boo4 II o# the ?:; where one or more o# the accused are o##icials occup%in$ the #ollowin$ positions in the $overnment, whether in a permanent, actin$ or interim 162 Bernas Primer at 442 (2006 ed.) 163 Bernas Primer at 442 (2006 ed.) 164 Bernas Primer at 443 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence D- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
capacit% at the time o# the commission o# the o##ense, a. 2##icials o# the !'ecutive branch with the position o# ?e$ional Director or hi$her, or with alar% &rade 3evel .9 (&.9) accordin$ to ?A B9<D. b. )embers o# Con$ress and o##icials thereo# with &.9 an up5 c. )embers o# the Iudiciar% without pre(udice to the Constitution5 d. Chairmen and members o# the Constitutional Commissions without pre(udice to the Constitutions5 and e. All other national and local o##icials with &.9 or hi$her. 2ther o##enses or #elonies whether simple or comple'ed with other crimes committed b% the public o##icials and emplo%ees mentioned in ubsection a in relation to their o##ice5 Civil and criminal cases #iled pursuant to and in connection with !2 nos. -, ., -=, and -=-A issued in -EDB. 7>cl$sive Ori)in%l @$ris"iction over petitions #or the issuance o# the writs o# mandamus, prohibitions, certiorari, habeas corpus, in(unction and other ancillar% writs and processes in aid of its appellate 0urisdictionJ :rovided, that (urisdiction over these petitions shall not be e'clusive o# the upreme Court5 7>cl$sive A##ell%te @$ris"iction over #inal (ud$ments, resolutions or orders o# re$ional trial courts whether in the e'ercise o# their own ori$inal (urisdiction or o# their appellate (urisdiction. (?A D.=E) The #ollowin$ re*uisites must concur in order that a case ma% #all under the e'clusive (urisdiction o# the andi$anba%an, 1. The o##ense committed is a violation o# ?A -/9E, Chapter II, ection , Title ;II, Boo4 II o# the ?evised :enal Code, !'ecutive 2rders "os. -, . -= and -=-A, issued in -EDB, or other o##enses or #elonies whether simple or comple'ed with other crimes5 .. The o##ender committin$ the o##enses (violatin$ ?A /C-E, ?A -/9E, the ?:C provisions, and other o##enses, is a public o##icial or emplo%ee holdin$ an% o# the positions enumerated in par. A, ection =, ?A D.=E5 and /. The o##ense committed is in relation to the o##ice. (3acson v. !'ecutive ecretar%, -EEE) Priv%te in"ivi"$%ls. 1In case private individuals are char$ed as co-principals, accomplices or accessories with the public o##icers or emplo%ees, the% shall be tried (ointl% with said public o##icers and emplo%ees. (ection =, :D -BCB)8 1:rivate persons ma% be char$ed to$ether with public o##icers to avoid repeated and unnecessar% presentation o# witnesses and e'hibits a$ainst conspirators in di##erent venues, especiall% o# the issues involved are the same. It #ollows there#ore that i# a private person ma% be tried (ointl% with public o##icers, he ma% also be convicted (ointl% with them, as in the case o# the present petitioners.8 (Balmadrid v. The @onorable andi$anba%an, -EE-) Ma!alino %. Sandigan#a$a' *++*9 It was held that because the :hilippine "ational Construction Compan% (:"CCC has no ille$al charter, petitioner, an o##icer o# :"CC, is not a public o##icer. That bein$ so, the andi$anba%an has no (urisdiction over him. The onl% instance when the andi$anba%an ma% e'ercise (urisdiction over a private individual is when the complaint char$es him either as a co-principal, accomplice or accessor% o# a public o##icer who has been char$ed within the (urisdiction o# the andi$anba%an. /etermin%tion o, @$ris"iction. 0hether or not the andi$anba%an or the ?TC has (urisdiction over the case shall be determined b% the alle$ations in the in#ormation speci#icall% on whether or not the acts complained o# were committed in relation to the o##icial #unctions o# the accused. It is re*uired that the char$e be set #orth with particularit% as will reasonabl% indicate that the e'act o##ense which the accused is alle$ed to have committed is one in relation to his o##ice. Thus, the mere alle$ation in the in#ormation that the o##ense was committed b% the accused public o##icer 7in relation to his o##ice8 is a conclusion o# law, not a #actual averment that would show the close intimac% between the o##ense char$ed and the dischar$e o# the accusedHs o##icial duties. (3acson v. !'ecutive ecretar%) ,ina$ %. Sandigan#a$an' (JJJ9 The upreme Court discussed the rami#ications o# ection 9, ?A D.=E, as #ollows, -. I# trial o# the cases pendin$ be#ore whatever court has alread% be$un as o# the approval o# ?A D.=E, the law does not appl%5 .. I# trial o# cases pendin$ be#ore whatever court has not be$un as o# the approval o# ?A D.=E, then the law applies, and the rules are, i. I# the andi$anba%an has (urisdiction over a case pendin$ be#ore it, then it retains (urisdiction5 ii. I# the andi$anba%an has no (urisdiction over a cased pendin$ be#ore it, the case shall be re#erred to the re$ular courts5 iii. I# the andi$anba%an has (urisdiction over a case pendin$ be#ore a re$ular court, the latter loses (urisdiction and the same shall be re#erred to the andi$anba%an5 I sweat, I bleed, I soar Service, Sacrifice, Excellence D. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
iv. I# a re$ular court has (urisdiction over a case pendin$ be#ore it, then said court retains (urisdiction. /. /ecisions.3evie;
The unanimous vote o# all the three members shall be re*uired #or the pronouncement o# (ud$ment b% a division. Decisions o# the andi$anba%an shall be reviewable b% the upreme Court on a petition #or certiorari. a. It is now settled that ection -/, ?A /C-E, ma4es it mandator% #or the nadi$anba%an to suspend an% public o##icer a$ainst whom a valid in#ormation char$in$ violation o# that law, or an% o##ense involvin$ #raud upon the $overnment or public #unds or propert% is #iled. (Bolasti$ v. andi$anba%an, ./< C?A -C/) b. The appellate (urisdiction o# the upreme Court over decisions and #inal orders o# the andi$anba%an is limited to *uestions o# law. (?epublic v. andi$anba%an, .CC.) IH. Om-$"sm%n Section 5. There is hereb% created the independent 2##ice o# the 2mbudsman, composed o# the 2mbudsman to be 4nown as Tanodba%an, one overall Deput% and at least one Deput% each #or 3u>on, ;isa%as, and )indanao. A separate Deput% #or the militar% establishment ma% li4ewise be appointed. Section 6. The o##icials and emplo%ees o# the 2##ice o# the 2mbudsman, other than the Deputies, shall be appointed b% the 2mbudsman, accordin$ to the Civil ervice 3aw. Section !. The 2mbudsman and his Deputies shall be natural- born citi>ens o# the :hilippines, and at the time o# their appointment, at least #ort% %ears old, o# reco$ni>ed probit% and independence, and members o# the :hilippine Bar, and must not have been candidates #or an% elective o##ice in the immediatel% precedin$ election. The 2mbudsman must have, #or ten %ears or more, been a (ud$e or en$a$ed in the practice o# law in the :hilippines. Durin$ their tenure, the% shall be sub(ect to the same dis*uali#ications and prohibitions as provided #or in ection . o# Article -X-A o# this Constitution. Section 6. The 2mbudsman and his Deputies shall be appointed b% the :resident #rom a list o# at least si' nominees prepared b% the Iudicial and Bar Council, and #rom a list o# three nominees #or ever% vacanc% therea#ter. uch appointments shall re*uire no con#irmation. All vacancies shall be #illed within three months a#ter the% occur. Section 1I. The 2mbudsman and his Deputies shall have the ran4 o# Chairman and )embers, respectivel%, o# the Constitutional Commissions, and the% shall receive the same salar% which shall not be decreased durin$ their term o# o##ice. ection --. The 2mbudsman and his Deputies shall serve #or a term o# seven %ears without reappointment. The% shall not be *uali#ied to run #or an% o##ice in the election immediatel% succeedin$ their cessation #rom o##ice. Section 12. The 2mbudsman and his Deputies, as protectors o# the people, shall act promptl% on complaints #iled in %n* ,orm or m%nner a$ainst public o##icials or emplo%ees o# the &overnment, or an% subdivision, a$enc% or instrumentalit% thereo#, includin$ $overnment-owned or controlled corporations, and shall, in appropriate cases, noti#% the complainants o# the action ta4en and the result thereo#. Section 13. The 2##ice o# the 2mbudsman shall have the #ollowin$ powers, #unctions, and duties, (-) Investi$ate on its own, or on complaint b% an% person, an% act or omission o# an% public o##icial, emplo%ee, o##ice or a$enc%, when such act or omission appears to be ille$al, un(ust, improper, or ine##icient. (.) Direct, upon complaint or at its own instance, an% public o##icial or emplo%ee o# the &overnment, or an% subdivision, a$enc% or instrumentalit% thereo#, as well as o# an% $overnment-owned or controlled corporation with ori$inal charter, to per#orm and e'pedite an% act or dut% re*uired b% law, or to stop, prevent, and correct an% abuse or impropriet% in the per#ormance o# duties. (/) Direct the o##icer concerned to ta4e appropriate action a$ainst a public o##icial or emplo%ee at #ault, and recommend his removal, suspension, demotion, #ine, censure, or prosecution, and ensure compliance therewith. (=) Direct the o##icer concerned, in an% appropriate case, and sub(ect to such limitations as ma% be provided b% law, to #urnish it with copies o# documents relatin$ to contracts or transactions entered into b% his o##ice involvin$ the disbursement or use o# public #unds or properties, and report an% irre$ularit% to the Commission on Audit #or appropriate action. (<) ?e*uest an% $overnment a$enc% #or assistance and in#ormation necessar% in the dischar$e o# its responsibilities, and to e'amine, i# necessar%, pertinent records and documents. I sweat, I bleed, I soar Service, Sacrifice, Excellence D/ FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
(B) :ublici>e matters covered b% its investi$ation when circumstances so warrant and with due prudence. (9) Determine the causes o# ine##icienc%, red tape, mismana$ement, #raud, and corruption in the &overnment and ma4e recommendations #or their elimination and the observance o# hi$h standards o# ethics and e##icienc%. (D) :romul$ate its rules o# procedure and e'ercise such other powers or per#orm such #unctions or duties as ma% be provided b% law. Section 14. The 2##ice o# the 2mbudsman shall en(o% #iscal autonom%. Its approved annual appropriations shall be automaticall% and re$ularl% released. A. Com#osition An 2mbudsman to be 4nown as the Tanodba%an. 2ne over-all Deput% At least one Deput% each #or 3u>on, ;isa%as and )indanao A separate Deput% #or the militar% establishment ma% li4ewise be appointed +. &$%li,ic%tions The 2mbudsman and his Deputies must be, -. "atural Born Citi>ens o# the :hilippines .. At least =C %ears o# a$e /. 2# reco$ni>ed probit% and independence =. )embers o# the :hilippine Bar <. )ust not have been candidates #or an% elective o##ice in the immediatel% precedin$ election. The 2mbudsman must have been a (ud$e or en$a$ed in the practice o# law #or ten %ears or more. C. A##ointment B% the :resident #rom a list o# at least si' nominees prepared b% the Iudicial and Bar Council, and #rom a list o# at least three nominees #or ever% vacanc% therea#ter. All vacancies to be #illed in three months. a. Term o# 2##ice , een %ears without reappointment '. ?an4 and alar% , The 2mbudsman and his Deputies shall have the ran4 o# Chairman and )embers, respectivel%, o# the Constitutional Commissions, and the% shall receive the same salar% which shall not be decreased durin$ his term o# o##ice. c. Aiscal Autonom% , The 2##ice o# the 2mbudsman shall en(o% #iscal autonom%. /. /is0$%li,ic%tions.In(i-itions Durin$ their tenure, hall not hold other o##ice or emplo%ment hall not en$a$e in the practice o# an% pro#ession or in the active mana$ement o# control o# an% business which in an% wa% ma% be a##ected b% the #unctions o# his o##ice5 hall not be #inanciall% interested, directl% or indirectl%, in an% contract with, or in an% #ranchise or privile$e $ranted b% the &overnment, or an% o# its subdivisions, etc,5 hall not be *uali#ied to run #or an% o##ice in the election immediatel% succeedin$ their cessation #rom o##ice. 7. @$ris"iction <o; is t(e :$ris"iction o, t(e Om-$"sm%n over % #erson "etermine"= Aor purposes o# determinin$ the scope o# the (urisdiction o# the 2mbudsman, a public o##icer is one to whom some o# the soverei$n #unctions o# the $overnment has been dele$ated. (The "ational Centennial Commission per#orms e'ecutive power which 7is $enerall% de#ined as the power to en#orce and administer laws. It is the power o# carr%in$ the laws into practical operation and en#orcin$ their due observance.8 The e'ecutive #unction, there#ore, concerns the implementation o# the policies as set #orth b% law. ;aurel v. Desierto, 2002) &' Char$ed with murder, the &overnor challen$es the authorit% o# the o##ice o# the 2mbudsman to conduct the investi$ation. @e ar$ues that the authorit% o# the 2mbudsman is limited to 7crimes related to or connected with an o##icialHs dischar$e o# his public #unctions.8 Decide. A' The 2mbudsman has authorit%. ection -. sa%s that he ma% 7investi$ateO an% act or omission o# an% public o##icialO when s$c( %ct or omission %##e%rs to -e ille)%l5 $n:$st5 im#ro#er or ine,,icient. )urder is ille$al. And since it was alle$edl% committed b% a public o##icial it comes within the (urisdiction o# the 2mbudsman. (Deloso v. Domin$o, -EEC) 4. Po;ers %n" /$ties (See Section $2 and $3 of )rticle H1) 2ver the %ears the scope o# the powers o# the 2mbudsman under ection -. has been clari#ied thus settlin$ various disputed issues, 1. The ombudsman can investi$ate onl% o##icers o# $overnment owned corporations with ori$inal charter. :A3, even when still owned b% the $overnment, did not have ori$inal charter. -B< 2. The (urisdiction o# the 2mbudsman over disciplinar% cases involvin$ public school teachers 16$ '(an, )r v Om&udsman, :.2. 3o. 12$2#6, 5ul* 20. 2006. I sweat, I bleed, I soar Service, Sacrifice, Excellence D= FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
has been modi#ied b% ection E o# ?.A. =B9C, otherwise 4nown as the )a$na Carta #or :ublic chool Teachers, which sa%s that such cases must #irst $o to a committee appointed b% the ecretar% o# !ducation. -BB It is erroneous, thus, #or respondents to contend that ?.A. "o. =B9C con#ers an e'clusive disciplinar% authorit% on the D!C over public school teachers and prescribes an e'clusive procedure in administrative investi$ations involvin$ them. ?.A. "o. =B9C was approved on Iune -D, -EBB. 2n the other hand, the -ED9 Constitution was rati#ied b% the people in a plebiscite in -ED9 while ?.A. "o. B99C was enacted on "ovember -9, -EDE. It is basic that the -ED9 Constitution should not be restricted in its meanin$ b% a law o# earlier enactment. The -ED9 Constitution and ?.A. "o. B99C were *uite e'plicit in con#errin$ authorit% on the 2mbudsman to act on complaints a$ainst all public o##icials and emplo%ees, with the e'ception o# o##icials who ma% be removed onl% b% impeachment or over members o# Con$ress and the Iudiciar%. 3. The 2mbudsman Act authori>es the 2mbudsman to impose penalties in administrative cases. -B9 ection .- o# ?A B99C vests in the 2mbudsman 7"isci#lin%r* %$t(orit* over %ll elective %n" %##ointive o,,ici%ls o, t(e ?overnment,8 e'cept impeachable o##icers, members o# Con$ress, and the Iudiciar%. And under ection .< o# ?A B99C, the 2mbudsman ma% impose in administrative proceedin$s the 7#en%lt* r%n)in) ,rom s$s#ension ;it(o$t #%* ,or one *e%r to "ismiss%l with #or#eiture o# bene#its or a #ine ran$in$ #rom #ive thousand pesos (:<,CCC.CC) to twice the amount malversed, ille$all% ta4en or lost, or both at the discretion o# the 2mbudsman ' ' '.8 Clearl%, under ?A B99C the 2mbudsman has the power to impose directl% administrative penalt% on public o##icials or emplo%ees. -BD "ote, however, that accordin$ to the 3ocal &overnment Code, elective o##icials ma% be dismissed onl% b% the proper court. 70here the disciplinin$ authorit% is $iven onl% the power to suspend and not the power to remove, it should not be permitted to manipulate the law b% usurpin$ the power to remove.8 -BE 4. The pecial :rosecutor ma% not #ile an in#ormation without authorit% #rom the 2mbudsman. ?epublic Act "o. B99C, b% con#errin$ upon the 2mbudsman the power to prosecute, li4ewise $rants to the 2mbudsman the power to authori>e the #ilin$ o# in#ormations. A dele$ated authorit% to prosecute was also $iven to the Deput% 2mbudsman, but no 166 Om&udsman v. "standarte, :2 16"670, 0pril 13, 2007. 167 Om&udsman v. CA, 3o)em'er 22, 20066 -m'udsman ). ucero, 3o)em'er 24, 2006. 16" Ombudsman v. CA, :.2. 3o. 16"07#, 5ul* 17, 2007. 16# +an((unian( Baran(a* ). Punon( Baran(a*, :.2. 3o. 170626, &arch 3, 200". such dele$ation e'ists to the pecial :rosecutor. "or is there an implied dele$ation. The pecial :rosecutor prosecutes onl% when authori>ed b% the 2mbudsman. -9C 5. The 2mbudsman has been con#erred rule ma4in$ power to $overn procedures under it. -9- 2ne who is answerin$ an administrative complaint #iled be#ore the 2mbudsman ma% not appeal to the procedural rules under the Civil ervice Commission. -9. 6. The power to investi$ate or conduct a preliminar% investi$ation on an% 2mbudsman case ma% be e'ercised b% an investi$ator or prosecutor o# the 2##ice o# the 2mbudsman, or b% an% :rovincial or Cit% :rosecutor or their assistance, either in their re$ular capacities or as deputi>ed 2mbudsman prosecutors. -9/ . A preventive suspension will onl% last ninet% (EC) da%s, not the entire duration o# the criminal case li4e petitioners seem to thin4. Indeed, it would be constitutionall% proscribed i# the suspension were to be o# an inde#inite duration or #or an unreasonable len$th o# time. The Court has thus laid down the rule that preventive suspension ma% not e'ceed the ma'imum period o# ninet% (EC) da%s, in consonance with :residential Decree "o. DC9, now ection <. o# the Administrative Code o# -ED9. -9= &' ?A B99C empowers the 2##ice o# the 2mbudsman to conduct preliminar% investi$ations and to directl% underta4e criminal prosecutions. 0hat is the constitutional basis #or this power1 A' Article XI, ection -/(D) means that the 2mbudsman ma% be validl% empowered with prosecutorial #unctions b% the le$islature, and this the latter did when it passed ?A B99C. (Camana$ v. &uerrero, -EE9) &' ?A B99C empowers the 2##ice o# the 2mbudsman to conduct preliminar% investi$ations and to directl% underta4e criminal prosecutions. Does it not violate the principle o# separation o# powers since the power to conduct preliminar% investi$ation is e'clusive to the e'ecutive branch1 A' I# it is authori>ed b% the Constitution it cannot be lo$icall% ar$ued that such power or the e'ercise thereo# is unconstitutional or violative o# the principle o# the separation o# powers. (Camana$ v. &uerrero, -EE9) 170 Perez v. Sandiga&a$an, :.2. 3o. 166062, +eptem'er 26, 2006. 171 Buencamino v. CA, :2 17$"#$,0pril 4, 2007. 172 &edina ). C-0, :.2. 3o. 17647", Ae'ruar* 4, 200". 173 *onasan ++ v. Panel o, +nvestigators o, t(e DO), :.2. 3o. 1$#747, 0pril 13, 2004. 174 9illasenor ) +andi(an'a*an :.2. 3o. 1"0700, &arch 4, 200" I sweat, I bleed, I soar Service, Sacrifice, Excellence D< FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
&' ?A B99C empowers the 2##ice o# the 2mbudsman to conduct preliminar% investi$ations and to directl% underta4e criminal prosecutions. Does it not directl% contravene Article XI, ection 9 b% diminishin$ the authorit% and power lod$ed in the 2##ice o# the pecial :rosecutor1 A' In )cop v. 3ffice of te 3mbudsman, $**5, the Court upheld not onl% the power o# Con$ress to so place the 2##ice o# the pecial :rosecutor under the 2mbudsman, but also the power o# Con$ress to remove some o# the powers $ranted to the 2##ice o# pecial :rosecutor. . (Camana$ v. &uerrero, -EE9) &' Are the powers o# 2mbudsman dele$able1 A' The power to investi$ate or conduct a preliminar% investi$ation on an% 2mbudsman case ma% be e'ercised b% an investi$ator or prosecutor o# the 2##ice o# the 2mbudsman, or b% an% :rovincial or Cit% :rosecutor or their assistance, either in their re$ular capacities or as deputi>ed 2mbudsman prosecutors. (@onasan II v. :anel o# Investi$ators o# the D2I, .CC=) 1In %n* ,orm or m%nner2 It was held that the #act that the 2mbudsman ma% start an investi$ation on the basis o# an% anon%mous letter does not violate the e*ual protection clause. Aor purposes o# initiatin$ preliminar% investi$ation be#ore the 2##ice o# the 2mbudsman, a complaint 7in an% #orm or manner8 is su##icient. (&arcia v. )iro, .CC/) -9< Po;er o, Contem#t. The 2mbudsman is also $ranted b% law the power to cite #or contempt, and this power ma% be e'ercised b% the 2mbudsman while conductin$ preliminar% investi$ation because preliminar% investi$ation is an e'ercise o# *uasi- (udicial #unctions. (3astimosa v. ;as*ue>, .=/ C?A =E9) -9B C%n t(e Co$rt -e com#elle" to revie; t(e e>ercise o, "iscernment in #rosec$tin) or "ismissin) % c%se -e,ore t(e Om-$"sm%n= It has been consistentl% held that it is not #or the Court to review the 2mbudsmanHs paramount discretion in prosecutin$ or dismissin$ a complaint #iled be#ore his o##ice. The rule is based not onl% upon the respect #or the investi$ator% and prosecutor powers $ranted b% the Constitution to the 2##ice o# the 2mbudsman but upon practicalit% as well. (2therwise, the #unctions o# the courts will be $rievousl% hampered b% innumerable petitions assailin$ the dismissal o# investi$ator% proceedin$s conducted b% the 2##ice o# the 2mbudsman with re$ard to complaints #iled be#ore it. (2laire> v. andi$anba%an, .CC/) There is, however, one important e'ception to this rule, and that is, when $rave abuse o# discretion on the part o# the 2mbudsman in either prosecutin$ or 17$ 0ntonio 3achura, -utline on Political a!, 3$1 (2006) 176 0ntonio 3achura, -utline on Political a!, 3$1 (2006) dismissin$ a case be#ore it is evident. In this event, the act o# the 2mbudsman can (usti#iabl% be assailed. -99 Om-$"sm%n (%s no %$t(orit* to "irectl* "ismiss % #$-lic o,,icer ,rom )overnment service. +nder ection -/(/) o# Article XI, the 2mbudsman can onl% recommend to the o##icer concerned the removal o# a public o##icer or emplo%ee #ound to be administrativel% liable. (Taplador v. 2##ice o# the 2mbudsman, .CC.) Be that as it ma%, the re#usal, without (ust cause, o# an% o##icer to compl% with such an order o# the 2mbudsman to penali>e errin$ o##icer or emplo%ee is a $round #or disciplinar% action. Thus, there is a stron$ indication that the 2mbudsmanHs recommendation is not merel% advisor% in nature but actuall% mandator% within the bounds o# law. This, should not be interpreted as usurpation o# the 2mbudsman o# the authorit% o# the head o# o##ice or an% o##icer concerned. It has lon$ been settled that the power o# the 2mbudsman to investi$ate and prosecute an% ille$al act or omission o# an% public o##icial is not an e'clusive authorit%, but a shared or concurrent authorit% in respect o# the o##ense char$ed. (3edesma v. CA, .CC<) 4. Po;er to Investi)%te The power to investi$ate, includin$ preliminar% investi$ation, belon$s to the 2mbudsman and not to the pecial :rosecutor. (Acop v. 2mbudsman, -EE<) U* v. S%n"i)%n-%*%n5 2II1' It was held that under ections -- and -<, ?A BB9C, the 2mbudsman s clothed with the authorit% to conduct preliminar% investi$ation and to prosecute all criminal cases involvin$ public o##icers and emplo%ees, not onl% those within the (urisdiction o# the andi$anba%an, but those within the (urisdiction o# re$ular courts as well. The clause 7an% ille$al act or omission o# an% public o##icial8 is broad enou$h to embrace an% crime committed b% a public o##icer or emplo%ee. Om-$"sm%nMs Po;er to Investi)%te5 Not 7>cl$sive. 0hile the 2mbudsmanHs power to investi$ate is primar%, it is not e'clusive and, under the 2mbudsman Act o# -EDE, he ma% dele$ate it to others and ta4e it bac4 an% time he wants to. (Acop v. 2mbudsman, -EE<) The 2mbudsman can also investi$ate criminal o##enses committed b% public o##icers which have no relation to their o##ice. (;as*ue> v. Alino, .9- C?A B9) 177 0ntonio 3achura, -utline on Political a!, 3$3 (2006) I sweat, I bleed, I soar Service, Sacrifice, Excellence DB FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
&' )a% the militar% deput% investi$ate civilian police1 A' Because the power o# the 2mbudsman is broad and because the Deput% 2mbudsman acts under the direction o# the 2mbudsman, the power o# the )ilitar% Deput% to investi$ate members o# the civilian police has also been a##irmed. (Acop v. 2mbudsman, -EE<) +%r &$estion D2II3E Om#udsmanH Po2e to In%estigate A $roup o# losin$ liti$ants in a case decided b% the upreme Court #iled a complaint be#ore the 2mbudsman char$in$ the Iustices with 4nowin$l% and deliberatel% renderin$ an un(ust decision in utter violation o# the penal laws o# the land. Can the 2mbudsman validl% ta4e co$ni>ance o# the case1 !'plain. SU??7ST7/ ANS873, "o, the 2mbudsman cannot entertain the complaint. As stated in the case o# In re, 3aureta. -=D C?A /D. K-ED9L, pursuant to the principle o# separation o# powers, the correctness o# the decisions o# the upreme Court as #inal arbiter o# all (usticiable disputes is conclusive upon all other departments o# the $overnment5 the 2mbudsman has no power to review the decisions o# the upreme Court b% entertainin$ a complaint a$ainst the Iustices o# the upreme Court #or 4nowin$l% renderin$ an un(ust decision. S7CON/ ALT73NATIH7 ANS873, Article XI, ection - o# the -ED9 Constitution provides that public o##icers must at all times be accountable to the people. ection .. o# the 2mbudsman Act provides that the 2##ice o# the 2mbudsman has the power to investi$ate an% serious misconduct alle$edl% committed b% o##icials removable b% impeachment #or the purpose o# #ilin$ a veri#ied complaint #or impeachment i# warranted. The 2mbudsman can entertain the complaint #or this purpose. &' )a% the 2mbudsman act on a complaint #iled b% dis$runtled part% liti$ants a$ainst the upreme Court alle$in$ certain named members o# the Court as havin$ committed acts that appear to be ille$al, un(ust, improper or ine##icient1 0ould it violate the principle o# separation o# powers i# he ta4es co$ni>ance1 S$))este" Ans;er -* A-el%r"o /omon"on' Jes, it is the dut% o# the 2mbudsman to investi$ate 7on complaint b% an% person, an% act or omission o# an% public o##icial, emplo%ee, o##ice or a$enc% when such act or omission appears to be ille$al, un(ust, improper or ine##icient.8 (Article XI, ection -/(-)) ?. Po;er to S$s#en" Preventive S$s#ension. The power to investi$ate also includes the power to impose preventive suspension. (Buenaseda v. Alavier, -EE/) S$s#ension $n"er t(e Om-$"sm%n Act visAPA vis t(e Loc%l ?overnment Co"e' In order to (usti#% the preventive suspension o# a public o##icial under ection .= o# ?A B99C, the evidence o# $uilt should be stron$, and, a. The char$e a$ainst the o##icer or emplo%ee should involve dishonest%, oppression or $rave misconduct or ne$lect in the per#ormance o# dut%5 b. That the char$es should warrant removal #orm the service5 or c. The respondentHs continued sta% in o##ice would pre(udice the case #iled a$ainst him. The 2mbudsman can impose the B-month preventive suspension to all public o##icials, whether elective or appointive, who are under investi$ation. 2n the other hand, in imposin$ the shorter period o# si't% (BC) da%s o# preventive suspension prescribed in the 3ocal &overnment Code o# -EE- on an elective local o##icial (at an% time a#ter issues are (oined), it would be enou$h that, a. There is reasonable $round to believe that the respondent has committed the act or acts complained or5 b. The evidence o# culpabilit% is stron$5 c. The $ravit% o# the o##ense so warrants5 or d. The continuance in o##ice o# the respondent could in#luence the witnesses or pose a threat to the sa#et% and inte$rit% o# the records and other evidence. (Iose )iranda v. andi$anba%an, .CC<) +%r &$estion D2II4E Om#udsman9 Po2e to SuspendH Pe%enti%e Suspension Director 020 #ailed the li#est%le chec4 conducted b% the 2mbudsmanPs 2##ice because 020s assets were $rossl% disproportionate to his salar% and allowances. )oreover, some assets were not included in his tatement o# Assets and 3iabilities. @e was char$ed o# $ra#t and corrupt practices and pendin$ the completion o# investi$ations, he was suspended #rom o##ice #or si' months. &' A$$rieved, 020 petitioned the Court o# Appeals to annul the preventive suspension order on the $round that the 2mbudsman could onl% recommend but not impose the suspension. )oreover, accordin$ to 020, the suspension was imposed without an% notice or hearin$, in violation o# due process. Is the petitionerPs contention meritorious1 Discuss brie#l%. (<S) I sweat, I bleed, I soar Service, Sacrifice, Excellence D9 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
SU??7ST7/ ANS873, The contention o# Director 020 is not meritorious. The suspension meted out to him is preventive and not punitive. ection .= o# ?epublic Act "o. B99C $rants the 2mbudsman the power to impose preventive suspension up to si' months. :reventive suspension ma%be imposed without an% notice or hearin$. It is merel% a preliminar% step in an administrative investi$ation and is not the #inal determination o# the $uilt o# the o##icer concerned. (&arcia v. )o(ica, /-= C?A .C9 K-EEEL). &' Aor his part, the 2mbudsman moved to dismiss 020s petition. Accordin$ to the 2mbudsman the evidence o# $uilt o# 020 is stron$, and petitioner #ailed to e'haust administrative remedies. 020 admitted he #iled no motion #or reconsideration, but onl% because the order suspendin$ him was immediatel% e'ecutor%. hould the motion to dismiss be $ranted or not1 Discuss brie#l%. (<S) SU??7ST7/ ANS873' The motion to dismiss should be denied. ince the suspension o# Director 020 was immediatel% e'ecutor%, he would have su##ered irreparable in(ur% had he tried to e'haust administrative remedies be#ore #ilin$ a petition in court (+niversit% o# the :hilippines Board o# ?e$ents v. ?asul, .CC C?A BD< K-EE-CBesides, the *uestion involved is purel% le$al. (A>arcon v. Buna$an, /EE C?A /B< K.CC/L). +%r &$estion D1666E Om#udsmanH Po2e to SuspendH Pe%enti%e Suspension An administrative complaint #or violation o# the Anti- &ra#t and Corrupt :ractices Act a$ainst X was #iled with the 2mbudsman. Immediatel% a#ter ta4in$ co$ni>ance o# the case and the a##idavits submitted to him, the 2mbudsman ordered the preventive suspension o# X pendin$ preliminar% investi$ation. X *uestioned the suspension order, contendin$ that the 2mbudsman can onl% suspend preventivel% subordinate emplo%ees in his own o##ice. Is X correct1 !'plain. SU??7ST7/ ANS873' "o, X is not correct. As held in Buenaseda vs. Alavier, ..B C?A B=<. under ection .= o# ?epublic Act "o. B99C, the 2mbudsman can place under preventive suspension an% o##icer under his disciplinar% authorit% pendin$ an investi$ation. The moment a complaint is #iled with the 2mbudsman, the respondent is under his authorit%. Con$ress intended to empower the 2mbudsman to suspend all o##icers, even i# the% are emplo%ed in other o##ices in the &overnment. The words WsubordinateW and Win his bureauW do not appear in the $rant o# such power to the 2mbudsman. <. Po;er o, Om-$"sm%n Over <is O,,ice +nder the Constitution, the 2##ice o# the 2mbudsman is an independent bod%. As a $uarant% o# this independence, the 2mbudsman has the power to appoint all o##icials and emplo%ees o# the 2##ice o# the 2mbudsman, e'cept his deputies. This power necessaril% includes the power o# settin$, prescribin$ and administerin$ the standards #or the o##icials and personnel o# the 2##ice. To #urther ensure its independence, the 2mbudsman has been vested with the power o# administrative control and supervision o# the 2##ice. This includes the authorit% to or$ani>e such directorates #or administration and allied services as ma% be necessar% #or the e##ective dischar$e o# the #unctions o# the 2##ice, as well as to prescribe and approve its position structure and sta##in$ pattern. "ecessaril%, it also includes the authorit% to determine and establish the *uali#ications, duties, #unctions and responsibilities o# the various directorates and allied services o# the 2##ice. This must be so i# the constitutional intent to establish an independent 2##ice o# the 2mbudsman is to remain meanin$#ul and si$ni#icant. The Civil ervice Commission has no power over this. -9D I. Cl%im o, Con,i"enti%lit* !ven the claim o# con#identialit% will not prevent the 2mbudsman #rom demandin$ the production o# documents needed #or the investi$ation. -9E In )lmonte v. 8asque4, $**5, the Court said that where the claim o# con#identialit% does not rest on the need to protect militar%, diplomatic or other national securit% secrets but on $eneral public interest in preservin$ con#identialit%, the courts have declined to #ind in the Constitution an absolute privile$e even #or the :resident. -DC )oreover, even in cases where matters are reall% con#idential, inspection can be done in camera. -D- H. S#eci%l Prosec$tor Section . The e'istin$ Tanodba%an shall herea#ter be 4nown as the 2##ice o# the pecial :rosecutor. It shall continue to #unction and e'ercise its powers as now or herea#ter ma% be provided b% law, e'cept those con#erred on the 2##ice o# the 2mbudsman created under this Constitution. This provision applies onl% to civil actions #or recover% o# ill-$otten wealth and not to criminal cases. Thus, prosecution o# o##enses arisin$ #rom, relatin$, or incident to, or involvin$ ill-$otten wealth in the said provision ma% be barred b% prescription. 17" Om&udsman v. CSC, :.2. 3o. 16221$, 5ul* 30, 2007. 17# Bernas Primer at 446 (2006 ed.) 1"0 Bernas Primer at 447 (2006 ed.) 1"1 Bernas Primer at 447 (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence DD FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
(:residential Ad-hoc Aact Aindin$ Committee on Behest 3oans v. Deseirto, -EEE) HI. IllA)otten 8e%lt( Section 15. The ri$ht o# the tate to recover properties unlaw#ull% ac*uired b% public o##icials or emplo%ees, #rom them or #rom their nominees or trans#erees, shall not be barred b% prescription, laches, or estoppel. This provision applies onl% to civil actions #or recover% o# ill-$otten wealth and not to criminal cases. Thus, prosecution o# o##enses arisin$ #rom, relatin$, or incident to, or involvin$ ill-$otten wealth in the said provision ma% be barred b% prescription. (:residential Ad-hoc Aact Aindin$ Committee on Behest 3oans v. Desierto, -EEE) &' Does ection -< prevent the prescription o# the crime1 A' "o. The ri$ht to prosecute criminall% can prescribe. -D. +%r &$estion D2II2E &aft and CouptionH Pes!iption of Cime uppose a public o##icer has committed a violation o# ection / (b) and (c) o# the Anti&ra#t and Corrupt :ractices Act Y?A "o, /C-E), as amended, b% receivin$ monetar% and other material considerations #or contracts entered into b% him in behal# o# the $overnment and in connection with other transactions, as a result o# which he has amassed ille$all% ac*uired wealth. (a) Does the criminal o##ense committed prescribe1 (.S) (b) Does the ri$ht o# the $overnment to recover the ille$all% ac*uired wealth prescribe1 (/S) SU??7ST7/ ANS873' a) A violation o# ection /(b) and (c) o# the Anti- &ra#t and Corrupt :ractices Act prescribes. As held in :residential Ad-@oc Aact-Aindin$ Committee on Behest 3oans v. Desierto, /-9 C?A .9. (-EEE), Article XI, ection -< o# the Constitution does not appl% to criminal cases #or violation o# the Anti- &ra#t and Corrupt :ractices Act (b) Article XI, ection -< o# the Constitution provides that the ri$ht o# the tate to recover properties unlaw#ull% ac*uired b% public o##icials or emplo%ees, or #rom them or #rom their nominees or trans#erees, shall not be bared b% prescription. HII. 3estriction on 4in%nci%l Accomo"%tions Section 16. "o loan, $uarant%, or other #orm o# #inancial accommodation #or an% business purpose ma% be $ranted, directl% or indirectl%, b% an% $overnment-owned or controlled ban4 or #inancial institution to the :resident, the ;ice- 1"2 Bernas Primer at 4$1 (2006 ed.) :resident, the )embers o# the Cabinet, the Con$ress, the upreme Court, and the Constitutional Commissions, the 2mbudsman, or to an% #irm or entit% in which the% have controllin$ interest, durin$ their tenure. HIII. Tr%ns#%renc* 3$le Section 1. A public o##icer or emplo%ee shall, upon assumption o# o##ice and as o#ten therea#ter as ma% be re*uired b% law, submit a declaration under oath o# his assets, liabilities, and net worth. In the case o# the :resident, the ;ice- :resident, the )embers o# the Cabinet, the Con$ress, the upreme Court, the Constitutional Commissions and other constitutional o##ices, and o##icers o# the armed #orces with $eneral or #la$ ran4, the declaration shall be disclosed to the public in the manner provided b% law. IX. Alle)i%nce to t(e St%te %n" t(e Constit$tion Section 1!. :ublic o##icers and emplo%ees owe the tate and this Constitution alle$iance at all times and an% public o##icer or emplo%ee who see4s to chan$e his citi>enship or ac*uire the status o# an immi$rant o# another countr% durin$ his tenure shall be dealt with b% law. &' )i$uel is a holder o# a 7$reen card8 entitlin$ him to be a resident o# the +nited tates permanentl%. In his application #or the card he put down his intention to reside in the +nited tates 7permanentl%8. @e actuall% immi$rated to the +nited tates in -ED= and thereb% assumed alle$iance to the +nited tates. @e however returned to the :hilippines in -ED9 to run #or ma%or o# a municipalit%. Is Article XI, ection -D applicable to him1 Does he have the necessar% residence re*uirement1 A' Article XI, ection -D is not applicable because it has re#erence to 7incumbents.8 0hat is applicable is ection BD o# the 2mnibus !lection Code which bars 7a permanent resident o# or an immi$rant to a #orei$n countr%8 unless he waives his status as a permanent resident o# the #orei$n countr%. The mere #ilin$ o# a certi#icate o# candidac% is not the re*uired waiver. It must be b% a special act done be#ore #ilin$ a certi#icate o# candidac%. (Caasi v. CA, -EEC) X. Notes %n" Comments -* /omon"on on Article XI 1. Croni*ism which involves undul% #avorin$ a cron% to the pre(udice o# public interest is a #orm o# violation o# the oath o# o##ice which constitute betra%al o# the public trust. I sweat, I bleed, I soar Service, Sacrifice, Excellence DE FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
.. An administrative o##icer $iven b% statute the ran4 o# Iustice is not a member o# the Iudiciar%, but o# the !'ecutive Department. @e ma% there#ore be investi$ated b% the 2mbudsman. The upreme Court does not have (urisdiction to investi$ate because it would be violative o# the concept o# separation o# powers. ("oble(as v. Tehan4ee, -EBD) I sweat, I bleed, I soar Service, Sacrifice, Excellence EC FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Article XII NATIONAL 7CONOML AN/ PAT3IMONL I. &OALS O/ NATIONAL ECONOM; (ection -) II. NATURAL RESOURCES0RE&ALIAN DOCTRINE (ections .) III. LANDS O/ PU,LIC DOMAIN (ection /) IV. CITIDENS@IP RE3UIREMENT V. /OREST LANDS AND PARIS (ection =) VI. ANCESTRAL LANDS AND ANCESTRAL DOMAIN (ection <) VII. STE<ARDS@IP CONCEPTH TRANS/ER O/ LANDS(ection B,9, and D) VIII.INDEPENDENT ECONOMIC AND PLANNIN& A&ENC; (ection -9) I=. /ILIPINIDATION O/ AREAS O/ INVESTEMENTS (ection -D) =. PU,LIC UTILITIES (ection --) =I. PRE/ERNTIAL USE O/ /ILIPINO LA,OR (ection -.) =II. TRADE POLIC; (ection -/) =III. SUSTAINED DEVELOPMENT O/ @UMAN RESOURCEH PRACTICE O/ PRO/ESSION (ection -=) =IV. COOPERATIVES (ection -<) =V. &OCCS (ection -B) =VI. TEMPORAR; STATE TAIE5OVER (ection -9) =VII. NATIONALIDATION O/ INDUSTRIES (ection -D) =VIII. MONOPOLIES (ection -E) =I=. CENTRAL MONETAR; AUT@ORIT; (ection .C) ==. /OREI&N LOANS (ection .-) ==I. PENAL SANCTIONS (ection ..) I. ?o%ls o, N%tion%l 7conom* Section 1. The $oals o# the national econom% are a more e*uitable distribution o# opportunities, income, and wealth5 a sustained increase in the amount o# $oods and services produced b% the nation #or the bene#it o# the people5 and an e'pandin$ productivit% as the 4e% to raisin$ the *ualit% o# li#e #or all, especiall% the under-privile$ed. The tate shall promote industriali>ation and #ull emplo%ment based on sound a$ricultural development and a$rarian re#orm, throu$h industries that ma4e #ull and e##icient use o# human and natural resources, and which are competitive in both domestic and #orei$n mar4ets. @owever, the tate shall protect Ailipino enterprises a$ainst un#air #orei$n competition and trade practices. In the pursuit o# these $oals, all sectors o# the econom% and all re$ions o# the countr% shall be $iven optimum opportunit% to develop. :rivate enterprises, includin$ corporations, cooperatives, and similar collective or$ani>ations, shall be encoura$ed to broaden the base o# their ownership. A. T(ree,ol" )o%l o, t(e n%tion%l econom* -. )ore e*uitable distribution o# wealth5 .. Increase o# wealth #or the bene#it o# the people5 /. Increased productivit%. +. N%tion%l Polic* on In"$stri%liG%tion %n" A)ric$lt$r%l /evelo#ment 0hat is envisioned is not necessaril% a$riculturall% related industriali>ation but rather industriali>ation that is a result o# releasin$ throu$h a$rarian re#orm capital loc4ed up in land. There#ore, this does not mean a hard-bound rule that a$ricultural development must have priorit% over industriali>ation. 0hat is envisioned is a #le'ible and rational relationship between the two as dictated b% the common $ood. -D/
C. Me%nin) o, t(e P(r%se 1UN4AI3 4O37I?N COMP7TITION AN/ T3A/7 P3ACTIC7S2 The phrase is not to be understood in a limited le$al and technical sense but in the sense o# an%thin$ that is harm#ul to :hilippine enterprises. At the same time, however, the intention is not to protect local ine##icienc%. "or is the intention to protect local industries #rom #orei$n competition at the e'pense o# the consumin$ public. -D= /. /eAcl%ssi,ic%tion o, ,orests reserves The law on #orest reserves was amended b% :rsidential Decree "o. B=/ dated -9 )a% -E9=. 0hereas under previous law the concurrence o# the "ational Assembl% was needed to withdraw #orest reserves #ound to be more valuable #or their mineral contents than #or the purpose #or which the reservation was made and convert the same into non-#orest reserves, le$islative concurrence is no lon$er needed. All that is re*uired is a recommendation #rom the D!"? ecretar% indicatin$ which #orest reservations are to be withdrawn. -D< An unclassi#ied #orested area ma% not be ac*uired b% continuous possession since it is inalienable. -DB 1"3 Bernas Primer at 4$3 (2006 ed.) 1"4 Bernas Primer at 4$4 (2006 ed.) 1"$ A!e# Mining v. Soutneast Mindanao Gold, :.2. 3o. 1$2613 B 3o. 1$262", 5une 23, 2006. 1"6 -e!u&lic v. .aguiat, :.2. 3o. 13420#. 5anuar* 24, 2006. I sweat, I bleed, I soar Service, Sacrifice, Excellence E- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
II. N%t$r%l 3eso$rces.3e)%li%n /octrine Section 2. All l%n"s o, t(e #$-lic "om%in, waters, minerals, coal, petroleum, and other mineral oils, all #orces o# potential ener$%, #isheries, #orests or timber, wildli#e, #lora and #auna, %n" ot(er n%t$r%l reso$rces %re o;ne" -* t(e St%te. 0ith the e'ception o# a$ricultural lands, all other natural resources shall not be alienated. The e'ploration, development, and utili>ation o# natural resources shall be under the #ull control and supervision o# the tate. The tate ma% directl% underta4e such activities, or it ma% enter into co- production, (oint venture, or production-sharin$ a$reements with Ailipino citi>ens, or corporations or associations at least si't% per centum o# whose capital is owned b% such citi>ens. uch a$reements ma% be #or a period not e'ceedin$ twent%- #ive %ears, renewable #or not more than twent%-#ive %ears, and under such terms and conditions as ma% be provided b% law. In cases o# water ri$hts #or irri$ation, water suppl% #isheries, or industrial uses other than the development o# water power, bene#icial use ma% be the measure and limit o# the $rant. The tate shall protect the nationPs marine wealth in its archipela$ic waters, territorial sea, and e'clusive economic >one, and reserve its use and en(o%ment e'clusivel% to Ailipino citi>ens. The Con$ress ma%, b% law, allow small-scale utili>ation o# natural resources b% Ailipino citi>ens, as well as cooperative #ish #armin$, with priorit% to subsistence #ishermen and #ish- wor4ers in rivers, la4es, ba%s, and la$oons. The :resident ma% enter into a$reements with #orei$n-owned corporations involvin$ either technical or #inancial assistance #or lar$e-scale e'ploration, development, and utili>ation o# minerals, petroleum, and other mineral oils accordin$ to the $eneral terms and conditions provided b% law, based on real contributions to the economic $rowth and $eneral wel#are o# the countr%. In such a$reements, the tate shall promote the development and use o# local scienti#ic and technical resources. The :resident shall noti#% the Con$ress o# ever% contract entered into in accordance with this provision, within thirt% da%s #rom its e'ecution. A. 3e)%li%n /octrine B@$r% 3e)%li%C 7The universal #eudal theor% that all lands 2ee "eld fom t"e Co2nE ( Carino v. Insular &overnment, -ECE) (?eco$ni>ed in the -E/<, -E9/ and -ED9 Constitutions5 As adopted in a republican s%stem, the medieval concept o# 0ura regalia has been stripped o# re$alia overtones, ownership is vested in the tate, not in the head o# the tate. (3ee @on$ No4 v. David, =D C?A /9.) -D9 1"7 0ntonio 3achura, -utline on Political a!, 3$6 (2006) +. Conse0$ence o, t(e 3e)%li%n /octrine in Section 2 An% person claimin$ ownership o# a portion o# the public domain must be able to show title #rom the state accordin$ to an% o# the reco$ni>ed modes o# ac*uisition o# title. (3ee @on$ No4 v. David, =D C?A /9.) &' 0hen the re$alia doctrine was introduced into the :hilippines b% coloni>ers, did the coloni>ers strip the natives o# their ownership o# lands1 A' "o. 70hen as #ar bac4 as testimon% or memor% $oes, the land has been held b% individuals under a claim o# private ownership, it will be presumed that to have been held in the same wa% #rom be#ore the panish con*uest, and never to have been public land.8 (Carino v. Insular &overnment, -ECE) C. Im#eri$m %n" /omini$m In public law, there e'ists the well-4nown distinction between $overnment authorit% possessed b% the tate which is appropriatel% embraced in soverei$nt%, and its capacit% to own or ac*uire propert%. The #ormer comes under the headin$ o# imperium, and the latter o# dominium. The use o# the term dominium is appropriate with re#erence to lands held b% the tate in its proprietar% character. In such capacit%, it ma% provide #or the e'ploitation and use o# lands and other natural resources, includin$ their disposition, e'cept as limited b% the Constitution. -DD /. Limits Im#ose" -* Section 2 on t(e @$r% 3e)%li% o, t(e St%te. -. 2nl% a$ricultural lands o# the public domain ma% be alienated. 2. The e'ploration, development, and utili>ation o# all natural resources shall be under the #ull control and supervision o# the tate either b% directl% underta4in$ such e'ploration, development, and utili>ation or throu$h co- production, (oint venture, or production-sharin$ a$reements with *uali#ied persons or corporations. /. All a$reements with the *uali#ied private sector ma% be #or onl% a period not e'ceedin$ twent%- #ive %ears, renewable #or another twent%-#ive %ears. (The twent%-#ive %ear limit is not applicable to 7water ri$hts #or irri$ation, water suppl%, #isheries, or industrial uses other than the development o# water power,8 #or which 7bene#icial use ma% be the measure and the limit o# the $rant.8) 1"" 0ntonio 3achura, -utline on Political a!, 3$7 (2006) I sweat, I bleed, I soar Service, Sacrifice, Excellence E. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
=. The use and en(o%ment o# marine wealth o# the archipela$ic waters, territorial sea, and e'clusive economic >one shall be reserved #or Ailipino citi>ens. (It would seem there#ore that corporations are e'cluded or at least must be #ull% owned b% Ailipinos.) $. +tili>ation o# natural resources in rivers, la4es, ba%s, and la$oons ma% be allowed on a 7small scale8 Ailipino citi>ens or cooperatives- with priorit% #or subsistence #ishermen and #ishwor4ers. (The bias here is #or the protection o# the little people.) -DE 7. C%ses on 3e)%li%n /octrine
S$n-e%m Convenience 4oo" v. CA5 1!1 SC3A 443' 70e adhere to the ?e$alian Doctrine where all a$ricultural, timber and mineral lands are sub(ect to the dominion o# the tate.8 Thus, be#ore an% land ma% be classi#ied #rom the #orest $roup and converted into alienable or disposable land #or a$ricultural or other purposes, there must be a positive act #rom the &overnment. The mere #act that a title was issued b% the Director o# 3ands does not con#er ownership over the propert% covered b% such title where the propert% is part o# the public #orest. 3e#$-lic v. S%*o5 161 SC3A 1' It was held that in the absence o# proo# that propert% is privatel% owned, the presumption is that it belon$s to the tate. Thus, where there is no showin$ that the land had been classi#ied as alienable be#ore the title was issued, an% possession thereo#, no matter how len$th%, cannot ripen into ownership. And all lands not otherwise appearin$ to be clearl% within private ownership are presumed to belon$ to the tate. (eville v. "ational Development Compan%, .CC-) Unite" P%r%c%le v. "e l% 3os%5 221 SC3A 1I!' The Court said that consonant with ?e$alian Doctrine, all lands not otherwise appearin$ to be clearl% within private ownership are presumed to belon$ to the tate. It is also on the basis o# this doctrine that the tate has the power to control minin$ claims, as provided in :D -.-=. 3e#$-lic v. 3e)ister o, /ee"s o, &$eGon5 244 SC3A 53' +nder the ?e$alian Doctrine, all lands not otherwise clearl% appearin$ to be privatel% owned are presumed to belon$ to the tate. In our (urisdiction, the tas4 o# administerin$ and disposin$ lands o# the public domain belon$s to the Director o# 3ands and, ultimatel%, the ecretar% o# !nvironment and "atural ?esources. The classi#ication o# public lands is, thus, an e'clusive prero$ative o# the !'ecutive Department throu$h the 2##ice o# the :resident. Courts have no 1"# Bernas Primer at 4$7 (2006 ed.) authorit% to do so. In the absence o# such classi#ication, the land remains unclassi#ied public land under released there#rom and rendered open to disposition. It$r%l"e v. 4%lc%s%ntos5 1666' Aorest land is nt capable o# private appropriation and occupation in the absence o# a positive act o# the $overnment declassi#%in$ it into alienable or disposable land #or a$ricultural purposes. Accordin$l%, where there is %et no award or $rant to petitioner o# the land in *uestion b% #ree patent or other wa%s o# ac*uisition o# public land, petitioner cannot law#ull% claim ownership o# the land. :ossession o# #orest lands, however lon$, cannot ripen into private ownership. 4. 3ecl%ime" l%n"s &' 0hat is the nature o# reclaimed #oreshore and submer$ed lands1 A' The% are l%n"s o, #$-lic "om%in and, unless classi#ied as alienable, ma% not be disposed o#. &' Aor reclaimed land to be re$istered as private propert% what is re*uired1 A' (-) There must be a proo# that the land had been classi#ied as alienable5 (.) The person see4in$ re$istration must show proo# o# havin$ ac*uired the propert% (e.$., b% prescription). (?epublic v. !nciso, .CC<) &' Could the :ublic !states Authorit% dispose o# reclaimed lands1 A' In order #or :!A to sell its reclaimed #oreshore and submer$ed alienable lands o# the public domain, there must be le$islative authorit% empowerin$ :!A to sell these lands. 0ithout such le$islative authorit%, :!A could not sell but onl% lease its reclaimed #oreshore and submer$ed alienable lands o# the public domain. "evertheless, an% le$islative authorit% $ranted to :!A to sell its reclaimed alienable lands o# the public domain would be sub(ect to the constitutional ban on private corporations #rom ac*uirin$ alienable lands o# the public domain. @ence, such le$islative authorit% could onl% bene#it private individuals. (Chave> v. :!A and A)A?I, Iul% E, .CC.) 7?eclaimed lands o# the public domain i# sold or trans#erred to a public or municipal corporation #or a monetar% consideration become patrimonial propert%O KandL ma% be soldO to private parties, whether Ailipino citi>ens o# *uali#ied corporations.8 ()a% B, .CC/ ?esolution) &' 0hat is the nature o# the ?opon$$i propert% in Iapan1 A' It is o# public dominion (unless it is convincin$l% shown that the propert% has become patrimonial). As propert% o# public dominion, the ?opon$$i lot is outside the commerce o# man. I sweat, I bleed, I soar Service, Sacrifice, Excellence E/ FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Chavez v. NHA, G.R. No. 164527, August 15, 2007. ?eclaimed land is public land. Be#ore it can be re$isted as private propert% is must be classi#ied as alienable. -EC 2nce classi#ied it becomes alienable. A presidential proclamation is a su##icient instrument #or classi#%in$ reclaimed land. Thus when :resident A*uino issued )2 =-< conve%in$ the land covered b% the mo4e% )ountain Dumpsite to the "ational @ousin$ Authorit% as well as the area to be reclaimed across ?--C, the cone%ance implicitl% carried with it the declaration that said lands are alienable and disposable. 2therwise, the "@A could not e##ectivel% use them in its housin$ and resettlement pro(ect. :resident ?amos made similar conve%ances to the "@A. ?A BE<9 as amended b% ?A 99-D provides ample authorit% #or the classi#ication o# reclaimed land. The #act that ?A BE<9 as modi#ied b% ?A 99-D declared that t reclaimed lands that shall serve as pa%ment to the pro(ect proponent alread% implies that the the land has been classi#ied. This conclusion is necessar% #or how else can the land be used as the enablin$ component #or the :ro(ect i# such classi#ication is not deemed made. 0e ruled in @C) that 7alienable lands o# public domain must be trans#erred to *uali#ied private parties, or to $overnment entities not tas4ed to dispose o# public lands, be#ore these lands can become private or patrimonial lands (emphasis supplied).8 To lands reclaimed b% :!A or throu$h a contract with a private person or entit%, such reclaimed lands still remain alienable lands o# public domain which can be trans#erred onl% to Ailipino citi>ens but not to a private corporation. This is because :!A under :D -CD= and !2 <.< is tas4ed to hold and dispose o# alienable lands o# public domain and it is onl% when it is trans#erred to Ailipino citi>ens that it becomes patrimonial propert%. 2n the other hand, the "@A is a $overnment a$enc% not tas4ed to dispose o# public lands under its charterTThe ?evised Administrative Code o# -ED9. The "@A is an 7end-user a$enc%8 authori>ed b% law to administer and dispose o# reclaimed lands. The moment titles over reclaimed lands based on the special patents are trans#erred to the "@A b% the ?e$ister o# Deeds, the% are automaticall% converted to patrimonial properties o# the tate which can be sold to Ailipino citi>ens and private corporations, BCS o# which are owned b% Ailipinos. The reason is obvious, i# the reclaimed land is not converted to patrimonial land once trans#erred to "@A, then it would be useless to trans#er it to the "@A since it cannot le$all% trans#er 1#0 -e!u&lic v. "nciso, :.2. 16014$, 3o)em'er 11, 200$. or alienate lands o# public domain. )ore importantl%, it cannot attain its avowed purposes and $oals since it can onl% trans#er patrimonial lands to *uali#ied bene#iciaries and prospective bu%ers to raise #unds #or the )D?:.
Arom the #ore$oin$ considerations, we #ind that the 9E-hectare reclaimed land has been declared alienable and disposable land o# the public domain5 and in the hands o# "@A, it has been reclassi#ied as patrimonial propert%. -E- ?. 7>#lor%tion5 /evelo#ment %n" UtiliG%tion o, In%lien%-le 3eso$rces. 7The e'ploration, development, and utili>ation o# natural resources shall be under the #ull control and supervision o# the tate. The tate ma% directl% underta4e such activities, or it ma% enter into co-production, (oint venture, or production-sharin$ a$reements with Ailipino citi>ens, or corporations or associations at least si't% per centum o# whose capital is owned b% such citi>ensO8 &' ection . spea4s o# 7co-production, (oint venture, or production sharin$ a$reements8 as modes o# e'ploration, development, and utili>ation o# inalienable lands. Does this e##ectivel% e'clude the lease s%stem1 A' Jes, with respect to mineral and #orest lands. (A$ricultural lands ma% be sub(ect o# lease) -E. &' 0ho are *uali#ied to ta4e part in the e'ploration, development and utili>ation o# natural resources1 A' Ailipino citi>ens and corporations or associations at least si't% percent o# whose capital is owned b% Ailipino citi>ens. ("ote however, that as to marine wealth, onl% Ailipino citi>ens are *uali#ied. This is also true o# natural resources in rivers, ba%s, la4es and la$oons, but with allowance #or cooperatives.) -E/ &' I# natural resources, e'cept a$ricultural land, cannot be alienated, how ma% the% be e'plored, developed, or utili>ed1 A' (-) Direct underta4in$ o# activities b% the tate or (.) Co-production, (oint venture, or production- sharin$ a$reements with the tate and all 7under the #ull control and supervision o# the tate.8
&' )a% the tate enter into service contracts with #orei$n owned corporations1 A' Jes, but sub(ect to the strict limitations in the last two para$raphs o# ection .. Ainancial and e technical a$reements are a #orm o# service contract. uch service contacts ma% be entered into onl% with respect to minerals, petroleum, and other mineral oils. The $rant o# such service contracts is sub(ect to several sa#e$uards, amon$ 1#1 C(avez v. .*A, :.2. 3o. 164$27, 0u(ust 1$, 2007. 1#2 Bernas Primer at 4$7 (2006 ed.) 1#3 Bernas Primer at 4$# (2006 ed.) I sweat, I bleed, I soar Service, Sacrifice, Excellence E= FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
them, (-) that the service contract be cra#ted in accordance with a $eneral law settin$ standard o# uni#orm terms, conditions and re*uirements5 (.) the :resident be the si$nator% #or the $overnment5 and (/) the :resident report the e'ecuted a$reement to Con$ress within thirt% da%s. (3a Bu$al BHlaan Tribal Assoc., .CC=, ?econsideration, .CC<) &' 0hen technical and #inancial assistance a$reement is entered into under ection ., can it include some mana$ement role #or the #orei$n corporation1 A' Jes. 0hile the Constitution mentions onl% #inancial and technical assistance the% necessaril% include the mana$erial e'pertise needed in the creation and operation o# the lar$e-scale minin$Ge'tractive enterprise, but the $overnment throu$h its a$encies (D!"?G)&B) must activel% e'ercises #ull control and supervision over the entire enterprise. (3a Bu$al BHlaan Tribal Assoc., .CC=, ?econsideration, .CC<) <. M%rine 8e%lt( Article XII, ection ., 7OThe tate shall protect the nationPs marine wealth in its archipela$ic waters, territorial sea, and e'clusive economic >one, and reserve its use and en(o%ment e'clusivel% to Ailipino citi>ens. '''8 Article XII, ection ., 7The Con$ress ma%, b% law, allow small-scale utili>ation o# natural resources b% Ailipino citi>ens, as well as cooperative #ish #armin$, with priorit% to subsistence #ishermen and #ish- wor4ers in rivers, la4es, ba%s, and la$oons. 7 M%r)in%l 4is(erm%n' A mar$inal #isherman is de#ined as an individual en$a$ed in #ishin$ b% e'istin$ price levels, is barel% su##icient to %ield a pro#it or cover the cost o# $atherin$ the #ish while a 7subsistence8 #isherman is one whose catch %ields but the irreducible minimum to his livelihood. ection -/- o# the 3ocal &overnment Code de#ines a 7mar$inal #armer or #isherman8 as one en$a$ed in subsistence #armin$ or #ishin$, which shall be limited to the sale, barter or e'chan$e o# a$ricultural or marine products produced b% himsel# and his immediate #amil%. The pre#erential ri$ht $ranted to them is not absolute. (Tano v. ocrates, -EE9) 4. 4in%nci%l %n" Tec(nic%l A)reements The -ED9 Constitution did not completel% do awa% with service contracts5 but now their scope has been limited and are now called #inancial and technical a$reements and he% ma% be entered into with #orei$n corporations. The $rant o# such service contracts is sub(ect to several sa#e$uards, amon$ them, (-) that the service contract be cra#ted in accordance with a $eneral law settin$ standard or uni#orm terms, conditions and re*uirements5 (.) the :resident be the si$nator% #or the $overnment5 and (/) the :resident report the e'ecuted a$reement to Con$ress within thirt% da%s. -E= Aorei$n contractors ma% provide not (ust capital, techonolo$% and technical 4now-how but also mana$erial e'pertise to the e'tent needed #or the creation and operation o# the lar$e-scale minin$Ge'tractive enterprise. But the $overnment, throu$h its a$encies (D!"?, )&B) must activel% e'ercises #ull control and supervision over the entire enterprise. -E< III. L%n"s o, P$-lic /om%in Section 3. 3ands o# the public domain are classi#ied into a$ricultural, #orest or timber, mineral lands and national par4s. A$ricultural lands o# the public domain ma% be #urther classi#ied b% law accordin$ to the uses to which the% ma% be devoted. Alienable lands o# the public domain shall be limited to a$ricultural lands. :rivate corporations or associations ma% not hold such alienable lands o# the public domain e'cept b% lease, #or a period not e'ceedin$ twent%-#ive %ears, renewable #or not more than twent%-#ive %ears, and not to e'ceed one thousand hectares in area. Citi>ens o# the :hilippines ma% lease not more than #ive hundred hectares, or ac*uire not more than twelve hectares thereo#, b% purchase, homestead, or $rant. Ta4in$ into account the re*uirements o# conservation, ecolo$%, and development, and sub(ect to the re*uirements o# a$rarian re#orm, the Con$ress shall determine, b% law, the si>e o# lands o# the public domain which ma% be ac*uired, developed, held, or leased and the conditions there#or. Cl%ssi,ic%tion o, P$-lic L%n"s. The classi#ication o# public lands is a #unction o# the e'ecutive branch o# $overnment, speci#icall% the Director o# 3ands, now the Director o# the 3and )ana$ement Bureau. The decision o# the Director, when approved b% the ecretar% o# the Department o# !nvironment and "atural ?esources, as to *uestions o# #act, is conclusive upon the courts. (?epublic v. Imperial, -EEE) The prero$ative o# classi#%in$ public lands pertains to administrative a$encies which have been speciall% tas4ed b% statutes to do so and the courts 1#4 a Bugal B/laan 0ri&al Assoc. D.32, :.2. 3o. 127""2, <ecem'er 1, 2004. (-n 2econsideration) and Ae'ruar* 1, 200$. 1#$ %d. I sweat, I bleed, I soar Service, Sacrifice, Excellence E< FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
will not inter#ere on matters which are addressed to the sound discretion o# $overnment andGor *uasi- (udicial a$encies entrusted with the re$ulation o# activities comin$ under their special technical 4nowled$e and trainin$. -EB &' 0ho ma% chan$e the classi#ication o# public lands, e.$., #rom inalienable to alienable, and how is the classi#ication done1 A' The classi#ication o# public lands is the e'clusive prero$ative o# the :resident upon recommendation o# the pertinent department head. (CA "o. -=-) &' Does the classi#ication o# land chan$e automaticall% when the nature o# the land chan$es1 A' "o. A positive act o# the e'ecutive is needed. An%one who claims that the classi#ication has been chan$ed must be able to show the positive act o# the :resident indicatin$ such positive act. The classi#ication is descriptive o# its le$al nature and not o# what the land actuall% loo4s li4e. @ence, #or instance, that a #ormer #orest has been denuded does not b% the #act meant that it has ceased to be #orest land. (Director o# 3ands v. Iud$e A*uino, -EEC) &' Can a land have a mi'ed classi#ication, e.$., partl% mineral, partl% a$ricultural1 A' "o. 7The Court #eels that the ri$hts over the land are indivisible and that the land itsel# cannot be hal# a$ricultural and hal# mineral.(?epublic v. CA) Alien%-le l%n"s o, t(e #$-lic "om%in s(%ll -e limite" to %)ric$lt$r%l l%n"s. It was determined that the lands sub(ect o# the decree o# the Court o# Airst Instance were not alienable lands o# the public domain, bein$ part o# the reservation #or provincial par4 purposes and thus part o# the #orest >one. Aorest land cannot be owned b% private persons5 its is not re$istrable, and possession thereo#, no matter how len$th%, cannot convert it into private land, unless the land is reclassi#ied and considered disposable and alienable. Aoreshore land is that part o# the land which is between the hi$h and low water, and le#t dr% b% the #lu' and re#lu' o# the tides. It is part o# the alienable land o# the public domain and ma% be disposed o# onl% b% lease and not otherwise. (?epublic v. Imperial, -EEE) Priv%te cor#or%tions or %ssoci%tions m%* not (ol" s$c( %lien%-le l%n"s o, t(e #$-lic "om%in e>ce#t -* le%se. In Director of ;ands v. 1)C and )cme @l%"ood L8eneer Co., $76 SC() 50*, the upreme Court declared that the -E9/ Constitution cannot impair vested ri$hts. 0here the land was ac*uired in -EB. when corporation were allowed to ac*uire lands not e'ceedin$ -,C.= hectares, the same ma% be re$istered in -ED., despite the 1#6 -e!u&lic v. Mendoza, :2 1$3727. &arch 2", 2007. constitutional prohibition a$ainst corporations ac*uirin$ lands o# the public domain. This is the controllin$ doctrine toda%. The -ED9 Constitution prohibits private corporations #rom ac*uirin$ alienable lands o# the public domain. )mari bein$ a private corporation, is barred #rom such ac*uisition. The :ublic !states Authorit% (:!A) is not an end user a$enc% with respect to the reclaimed lands under the amended Ioint ;enture A$reement, and :!A ma% simpl% turn around and trans#er several hundreds o# hectares to a sin$le private corporation in one transaction. (Chave> v. :!A, .CC/) &' 0hen does land o# the public domain become private land1 A' 0hen it is ac*uired #rom the $overnment either b% purchase o# b% $rant. (As held in 3 Co v. Director of ;ands, 9< :hil EDC, 7all lands that were not ac*uired #rom the &overnment, either b% purchase or b% $rant, belon$ to the public domain. An e'ception to the rule would be an% land that should have been in the possession o# an occupant and o# his predecessors-in-interest since time immemorial, #or such possession would (usti#% the presumption that the land had never been part o# the public domain or that it had been private propert% even be#ore the panish con*uest.8) &' Can prescription trans#orm public land into private land1 A' Jes, i# it is alienable land. (72pen, e'clusive and undisputed possession o# alienable public land #or the period prescribed b% law creates the le$al #iction whereb% the land, upon completion o# the re*uisite period ipso 0ure and without need o# (udicial or other sanction, ceases to be public land and becomes private propert%. uch open, continuous, e'clusive and notorious occupation o# the disputed properties #or more than /C %ears must, however, be concl$sivel* established. This *uantum o# proo# is necessar% to avoid erroneous validation o# actuall% #ictitious claims or possession over the propert% in dispute. (an )i$uel Corporation v. CA, -EEC) &' In computin$ the thirt%-%ear period #or ac*uisitive prescription under ection =E(E) o# the :ublic 3and 3aw, can the period be#ore the land (e.$. #orest land) is converted into alienable public land be included1 A' "2. The thirt%-%ear period onl% be$ins to toll onl% #rom the time the land is converted into alienable land. (Almeda v. CA, -EE-) &' Do minin$ claims ac*uired, re$istered, per#ected, and patentable under the 2ld )inin$ 3aw mature to private ownership that would entitle the claimant to the ownership thereo#1 A' 7)ere location does not mean absolute ownership over the a##ected land or the minin$ claim. It merel% se$re$ates the located land or area #orm the public domain b% barrin$ other would-be locators #rom locatin$ the same and appropriatin$ #or themselves the minerals #ound therein. To rule otherwise would impl% that location is all that is needed to ac*uire and maintain ri$hts over a I sweat, I bleed, I soar Service, Sacrifice, Excellence EB FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
located minin$ claim. This, we cannot approve or sanction because it is contrar% to the intention o# the lawma4er that the locator should #aith#ull% and consistentl% compl% with the re*uirements #or annual wor4 and improvements in the located minin$ claims.8 (Director o# 3ands v. Nalahi Investments, -EDE) &' )a% aliens lease land o# the public domain1 A' "o, because that would en(o% en(o%ment o# the natural resources o# the public domain. &' )a% an alien lease a private land1 A' Jes. A lease to an alien #or a reasonable period is valid. o is an option $ivin$ an alien the ri$ht to bu% the real propert% on condition he is $ranted :hilippine citi>enship. IH. CitiGens(i# 3e0$irement Co-production, (oint venture or production sharin$ a$reements K#or e'ploration, development and utili>ation o# natural resourcesL Ailipino citi>ens or Corporations or associations at least BCS o# whose capital is Ailipino owned. (Art. XII, ection .) "ote,A$reements shall not e'ceed a period o# .< %ears, renewable #or anther .< %ears. +se and en(o%ment o# the nationHs marine wealth in its archipela$ic waters, territorial sea and e'clusive economic >one Y:D -<EEL5 +" Convention on the 3aw o# the ea (rati#ied b% ?: in Au$ust, -ED/)L !'clusivel% #or Ailipino Citi>ens (Art. XII, ection .) Alienable lands o# the public domain Kwhich shall be limited to a$ricultural landsL, 2nl% #or Ailipino citi>ens ma% ac*uire not more than -. hectares b% purchase, homestead or $rant5 or lease not more than <CC hectares. :rivate corporations ma% lease not more than -,CCC hectares #or .< %ears, renewable #or another .< %ears. Certain areas o# investment Kas Con$ress shall provide when the national interest so dictatesL See )nne/ $-Si/t (egular Foreign 1nvestment .egative ;ist, ;ists ) and ?) ?eserved #or Ailipino citi>ens or corporations BCS o# whose capital is Ailipino owned, althou$h Con$ress ma% prescribe a hi$her percenta$e o# Ailipino ownership (Art. XII, ection -C) Aranchise, certi#icate or an% other #orm o# authori>ation #or the operation o# a public utilit%. 2nl% to citi>ens o# the :hilippines or corporations at least BCS o# whose capital is Ailipino owned. (Art. XII, ection --) H. 4orest L%n"s %n" P%r9s Section 4. The Con$ress shall, as soon as possible, determine, b% law, the speci#ic limits o# #orest lands and national par4s, mar4in$ clearl% their boundaries on the $round. Therea#ter, such #orest lands and national par4s shall be conserved and ma% not be increased nor diminished, e'cept b% law. The Con$ress shall provide #or such period as it ma% determine, measures to prohibit lo$$in$ in endan$ered #orests and watershed areas. HI. Ancestr%l L%n"s %n" Ancestr%l /om%in Section 5. The tate, sub(ect to the provisions o# this Constitution and national development policies and pro$rams, shall protect the ri$hts o# indi$enous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-bein$. The Con$ress ma% provide #or the applicabilit% o# customar% laws $overnin$ propert% ri$hts or relations in determinin$ the ownership and e'tent o# ancestral domain. HII. Ste;%r"s(i# Conce#tJ Tr%ns,er o, L%n"s Section 6. The use o# propert% bears a social #unction, and all economic a$ents shall contribute to the common $ood. Individuals and private $roups, includin$ corporations, cooperatives, and similar collective or$ani>ations, shall have the ri$ht to own, establish, and operate economic enterprises, sub(ect to the dut% o# the tate to promote distributive (ustice and to intervene when the common $ood so demands. Section . ave in cases o# hereditar% succession, no private lands shall be trans#erred or conve%ed e'cept to individuals, corporations, or associations *uali#ied to ac*uire or hold lands o# the public domain. Section !. "otwithstandin$ the provisions o# ection 9 o# this Article, a natural-born citi>en o# the :hilippines who has lost his :hilippine citi>enship ma% be a trans#eree o# private lands, sub(ect to limitations provided b% law. A. Ste;%r"s(i# Conce#t ee ection B. +. Priv%te L%n"s 1. 3$le %n" 7>ce#tions 3UL7' "o private lands shall be trans#erred or conve%ed e'cept to individuals, corporations, or I sweat, I bleed, I soar Service, Sacrifice, Excellence E9 FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
associations *uali#ied to ac*uire or hold lands o# the public domain. 7XC7PTIONS' -. @ereditar% uccession (This does not appl% to testamentar% dispositions, ?amire> v. ;da. De ?amire>, --- C?A 9=C) .. A natural born citi>en o# the :hilippines who has lost his :hilippine citi>enship ma% be a trans#eree o# private lands (ection D, Article XII) /. Americans hold valid title to private lands as a$ainst private persons No #riv%te l%n"s s(%ll -e tr%ns,erre" or conve*e" e>ce#t to in"ivi"$%ls5 cor#or%tions5 or %ssoci%tions 0$%li,ie" to %c0$ire or (ol" l%n"s o, t(e #$-lic "om%in. An% sale or trans#er in violation o# the prohibition is null and void. In 3ng Cing @o v. C), 23* SC() 37$, it was held that even i# the petitioner proves that the Deed o# ale in his #avor is in e'istence and dul% e'ecuted, nonetheless, bein$ an alien, petitioner is dis*uali#ied #rom ac*uirin$ and ownin$ real propert%. 4renGel v. C%tito5 2II3' The upreme Court said that inasmuch as the petitioner is an alien, he is dis*uali#ied #orm ac*uirin$ and ownin$ lands in the :hilippines. The sale o# three parcels o# lands was null and void. "either can the petitioner recover the mone% he had spent #or the purchase thereo#. !*uit%, as a rule will #ollow the law, and will not permit to be done indirectl% that which, because o# public polic%, cannot be done directl%. An %ction to recover t(e #ro#ert* sol" ,ile" -* t(e ,ormer o;ner ;ill lie. (The pari delicto rule has been abandoned as earl% as :BC v. 3ui he, .- C?A <., where the upreme Court declared that a lease #or EE %ears, with a <C-%ear oprtion to purchase the propert% i# and when 0on$ @en$ would be naturali>ed, is a virtual surrender o# all ri$hts incident to ownership, and there#ore, invlaid.) 3and sold to an alien which was later trans#erred to a Ailipino citi>enTor where the alien later becomes a Ailipino citi>enTcan no lon$er be recovered b% the vendor, because there is no lon$er an% public polic% involved. (?epublic v. IAC, -9< C?A /ED5 @alili v. CA, -EE95 3ee v. Director o# 3ands, .CC-) A n%t$r%l -orn citiGen o, t(e P(ili##ines ;(o (%s lost (is P(ili##ine citiGens(i# m%* -e % tr%ns,eree o, #riv%te l%n"s5 s$-:ect to limit%tions #rovi"e" -* l%;. Thus, even i# private respondents were alread% Canadians when the% applied #or re$istration o# the properties in *uestion, there could be no le$al impediment #or the re$istration thereo#, considerin$ that it is undisputed that the% were #ormerl% natural- born citi>ens. (?epublic v. CA, ./< C?A B<9) ?A D-9E provides that natural-born Ailipino citi>en ma% ac*uire to a ma'imum area o# private land to <,CCC s*uare meters #or urban land and / hectares #or rural land. Aurthermore, such land ma% now be used #or business and #or other purposes. Americ%ns (ol" v%li" title to #riv%te l%n"s %s %)%inst #riv%te #ersons. A previous owner ma% no lon$er recover the land #rom an American bu%er who succeeded in obtainin$ title over the land. 2nl% the tate has the superior ri$ht to the land, throu$h the institution o# esceat proceedings Kas a conse*uence o# the violation o# the ConstitutionL, or throu$h an action for reversion Kas e'pressl% authori>ed under the :ublic 3and Act with respect to lands which #ormerl% #ormed part o# the public domainL. 2. 3eme"ies to 3ecover Priv%te L%n" ,rom /is0$%li,ie" Alien -. !scheat :roceedin$s .. Action #or ?eversion under the :ublic 3and Act 3. An action #or recover% #iled b% the #ormer Ailipino owner (unless the land is sold to an American citi>en prior to Iul% /, -E9= and the American citi>en obtained title thereto. Action ,or reversion $n"er t(e P$-lic L%n" Act. The Director o# 3ands has the authorit% and the speci#ic dut% to conduct investi$ations o# alle$ed #raud in obtainin$ #ree patents and the correspondin$ titles to alienable public lands, and , i# #acts disclosed in the investi$ation warrant, to #ile the correspondin$ court action #or reversion o# the land to the tate. (?epublic v. CA, -9. C?A -) The action o# the tate #or reversion to the public domain o# land #raudulentl% $ranted to private individuals is imprescriptible. (Ba$uio v. ?epublic, -EEE) But it is the tate alone which ma% institute reversion proceedin$s a$ainst public lands alle$edl% ac*uired throu$h #raud and misrepresentation pursuant to ection -C- o# the :ublic 3and Act. :rivate parties are without le$al standin$ at all to *uestion the validit% o# the respondentHs title (+r*ui$a v. CA, -EEE) Thus, in &anBiBo v. Ce4ar, $***, it was held that where the propert% in dispute is still part o# the public domain, onl% the tate can #ile suit #or reconve%ance o# such public land. ?espondents, who are merel% applicants #or sales patent thereon, are not proper parties to #ile an action #or reconve%ance. I sweat, I bleed, I soar Service, Sacrifice, Excellence ED FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
The tate can be put in estoppels b% the mista4es or errors o# its o##icials or a$ents. !stoppel a$ainst the tate is not #avored5 it ma% be invo4ed onl% in rare and unusual circumstances as it would operate to de#eat the e##ective operation o# a polic% adopted to protect the public. @owever, the tate ma% not be allowed to deal dishonorabl% or capriciousl% with its citi>ens. In (epublic v. C), $*** because #or nearl% .C %ears startin$ #rom the issuance o# the titles I n-EEB to the #ilin$ o# the complaint in -ED<, the tate #ailed to correct and recover the alle$ed increase in the land area o# the titles issued, the prolon$ed inaction stron$l% militates a$ainst its cause, tantamount to laces, which means the 7#ailure or ne$lect, #or an unreasonable and une'pected len$th o# time, to do that which b% e'ercisin$ due dili$ence could or should have been done earlier.8 It is ne$li$ence or omission to assert a ri$ht within a reasonable time, warrantin$ a presumption that the part% entitled to assert it either abandoned it or declined to assert it. 4orei)n cor#or%tions %n" l%n". A #orei$n corporation ma% bu% shares in e'cess o# =CS o# the shares o# the corporation. But the e##ect would be that the corporation it bu%s into would lose its status as a Ailipino corporation and its capacit% to hold private land. -E9 It should be noted, however, that the prohibition in the Constitution on aliens applies onl% to ownership o# land. It does not e'tend to all immovable or real propert% as de#ined under Article =-< o# the Civil Code, that is, those which are considered immovable #or bein$ attached to land, includin$ buildin$s and construction o# all 4ind attached to the soil. -ED Hiol%tion -* %liens. An attempt b% an alien to circumvent to prohibition on alien ac*uisition o# land can have dire conse*uences #or such alien. Thus an alien ma% not be reimbursed #or the mone% he $ave to his wi#e to purchase land and build a house.. +pon the dissolution o# the communit% o# propert% the alien reimbursement in e*uit% on the theor% that )aria merel% held the propert% in trust. To claim e*uit% he must come with clean hands. Nlaus 4new he was violatin$ the law when he purchased the land. -EE HIII. In"e#en"ent 7conomic %n" Pl%nnin) A)enc* 1#7 ).G. Summit v. C.A., :.2. 3o. 1242#3. 5anuar* 31, 200$ 1#" ).G. Summit v. C.A., :.2. 3o. 1242#3. 5anuar* 31, 200$ 1## Muller v. Muller, :.2. 3o. 14#61$, 0u(ust 2#, 2006. Section 6. The Con$ress ma% establish an independent economic and plannin$ a$enc% headed b% the :resident, which shall, a#ter consultations with the appropriate public a$encies, various private sectors, and local $overnment units, recommend to Con$ress, and implement continuin$ inte$rated and coordinated pro$rams and policies #or national development. +ntil the Con$ress provides otherwise, the "ational !conomic and Development Authorit% shall #unction as the independent plannin$ a$enc% o# the $overnment. IX. 4ili#iniG%tion o, Are%s o, Investments Section 1I. The Con$ress shall, upon recommendation o# the economic and plannin$ a$enc%, when the national interest dictates, reserve to citi>ens o# the :hilippines or to corporations or associations at least si't% per centum o# whose capital is owned b% such citi>ens, or such hi$her percenta$e as Con$ress ma% prescribe, certain areas o# investments. The Con$ress shall enact measures that will encoura$e the #ormation and operation o# enterprises whose capital is wholl% owned b% Ailipinos. In the $rant o# ri$hts, privile$es, and concessions coverin$ the national econom% and patrimon%, the tate shall $ive pre#erence to *uali#ied Ailipinos. The tate shall re$ulate and e'ercise authorit% over #orei$n investments within its national (urisdiction and in accordance with its national $oals and priorities. M%nil% Prince <otel v. ?SIS5 2 SC3A 4I!' The upreme Court said that the term 7patrimon%8 pertains to herita$eTand #or over ei$ht decades, the )anila @otel has been mute witness to the triumphs and #ailures, loves and #rustrations o# the Ailipino5 its e'istence is impressed with public interest5 its own historicit% associate with our stru$$le #or soverei$nt%, independence and nationhood. ;eril%, the )anila @otel has become part o# our national econom% and patrimon%, and <- S o# its e*uit% comes within the purview o# the constitutional shelter, #or it comprises the ma(orit% and controllin$ stoc4. Conse*uentl%, the Ailipino Airst polic% provisions is applicable. Aurthermore, the upreme Court said that this provision is a positive command which is complete in itsel# and needs no #urther $uidelines or implementin$ rules or laws #or its operation. It is per se en#orceable. It means precisel% that Ailipinos should be pre#erred and when the Constitution declares that a ri$ht e'ists in certain speci#ied circumstances, an action ma% be maintained to en#orce such ri$ht. X. P$-lic Utilities I sweat, I bleed, I soar Service, Sacrifice, Excellence EE FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Section 11. "o #ranchise, certi#icate, or an% other #orm o# authori>ation #or the operation o# a public utilit% shall be $ranted e'cept to citi>ens o# the :hilippines or to corporations or associations or$ani>ed under the laws o# the :hilippines, at least si't% per centum o# whose capital is owned b% such citi>ens5 nor shall such #ranchise, certi#icate, or authori>ation be e'clusive in character or #or a lon$er period than #i#t% %ears. "either shall an% such #ranchise or ri$ht be $ranted e'cept under the condition that it shall be sub(ect to amendment, alteration, or repeal b% the Con$ress when the common $ood so re*uires. The tate shall encoura$e e*uit% participation in public utilities b% the $eneral public. The participation o# #orei$n investors in the $overnin$ bod% o# an% public utilit% enterprise shall be limited to their proportionate share in its capital, and all the e'ecutive and mana$in$ o##icers o# such corporation or association must be citi>ens o# the :hilippines. A #ranchise, certi#icate or authori>ation shall not be e'clusive nor #or a period more than <C %ears, and shall be sub(ect to amendment, alteration or repeal b% Con$ress. All e'ecutive and mana$in$ o##icers must Ailipino citi>ens. In @ilipino &elepone Corporation v. .(C, 2003, it was held that a #ranchise to operate a public utilit% is not an e'clusive private propert% o# the #ranchisee. "o #ranchisee can demand or ac*uire e'clusivitl% in the operation o# a public utilit%. Thus, a #ranchisee cannot complain o# sei>ure or ta4in$ o# propert% because o# the issuance o# another #ranchise to a competitor. ee )lbano v. (e%es, $,5 SC() 267, where the upreme Court said that Con$ress does not have the e'clusive power to issue such authori>ation. Administrative bodies, e.$. 3TA?B, !?B, etc., ma% be empowered to do so. In @ilippine )irlines v. Civil )eronautics ?oard, $**, where it was held that ection -C, ?A 99B, reveals the clear intent o# Con$ress to dele$ate the authorit% to re$ulate the issuance o# a license to operate domestic air transport services. In Gnited ?roadcasting .et"orBs v. .ational &elecommunications Commission, 2003- the upreme Court ac4nowled$ed that there is a trend towards dele$atin$ the le$islative power to authori>e the operation o# certain public utilities to administrative a$encies and dispensin$ with the re*uirement o# a con$ressional #ranchise. @owever, in this case, it was held that in view o# the clear re*uirement #or a le$islative #ranchise under :D <9B-A, the authori>ation o# a certi#icate o# public convenience b% the "TC #or the petitioner to operate television Channel .< does not dispense with the need #or a #ranchise. T%t%" v. ?%rci%' The Constitution, in no uncertain terms, re*uires a #ranchise #or the operation o# public utilities. @owever, it does not re*uire a #ranchise be#ore one can own the #acilities needed to operate a public utilit% so lon$ as it does not operate them to serve the public. 0hat private respondent, in this case, owns are rail trac4s, rollin$ stoc4s li4e coaches, rail stations, terminals and power plant, not public utilit%. 0hat constitute a public utilit% is not their ownership but their use to the public. +%)%tsin) v. Committee on Priv%tiG%tion' The Court held that :etron is not a public utilit%5 hence there is no merit to petitionerHs contention that the sale o# the bloc4 o# shares to Aramco violated Article XII, ection -- o# the Constitution. A public utilit% is one or$ani>ed 7#or hire or compensation8 to serve the public, which is $iven the ri$ht to demand its service. :etron is not en$a$ed in oil re#inin$ #or hire or compensation to process the oil o# other parties. @? S$mmit <ol"in)s v. CA5 2II3' A public utilit% is a business or service en$a$ed in re$ularl% suppl%in$ the public with some commodit% or service o# public conse*uence, such as electricit%, $as, water, transportation, telephone or tele$raph service. To constitute a public utilit%, the #acilit% must be necessar% #or the maintenance o# li#e and occupation o# the residents. As the name indicates, 7public utilit%8 implies public use and service to the public. A ship%ard is not a public utilit%. Its nature dictates that it serves but a limited clientele whom it ma% choose to serve at its discretion. It has no le$al obli$ation to render the services sou$ht b% each and ever% client. T7L7+AP v. COM7L7C5 2!6 SC3A 33' All broadcastin$, whether b% radio or television stations, is licensed b% the &overnment. ?adio and television companies do not own the airwaves and #re*uencies5 the% are merel% $iven temporar% privile$e o# usin$ them. A #ranchise is a privile$e sub(ect to amendment, and the provision o# B: DD- $rantin$ #ree airtime to the C2)!3!C is an amendment o# the #ranchise o# radio and television stations. @? S$mmit <ol"in)s v. CA5 2II3' A (oint venture #alls within the purview o# an 7association8 pursuant to ection -- o# Article XII5 thus a (oint venture which would en$a$e in the business o# operatin$ a public utilit%, such as a ship%ard must compl% with the BCS-=CS Ailipino-#orei$n capitali>ation re*uirement. XI. Pre,erenti%l Use o, 4ili#ino L%-or Section 12. The tate shall promote the pre#erential use o# Ailipino labor, domestic materials and locall% produced $oods, and adopt measures that help ma4e them competitive. XII. Tr%"e Polic* I sweat, I bleed, I soar Service, Sacrifice, Excellence -CC FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
Section 13. The tate shall pursue a trade polic% that serves the $eneral wel#are and utili>es all #orms and arran$ements o# e'chan$e on the basis o# e*ualit% and reciprocit%. XIII. S$st%ine" /evelo#ment o, <$m%n 3eso$rceJ Pr%ctice o, Pro,ession Section 14. The sustained development o# a reservoir o# national talents consistin$ o# Ailipino scientists, entrepreneurs, pro#essionals, mana$ers, hi$h-level technical manpower and s4illed wor4ers and cra#tsmen in all #ields shall be promoted b% the tate. The tate shall encoura$e appropriate technolo$% and re$ulate its trans#er #or the national bene#it. The practice o# all pro#essions in the :hilippines shall be limited to Ailipino citi>ens, save in cases prescribed b% law. XIH. Coo#er%tives Section 15. The Con$ress shall create an a$enc% to promote the viabilit% and $rowth o# cooperatives as instruments #or social (ustice and economic development. In Cooperative Development )utorit% v. Dolefil )grarian (eforms ?eneficiaries Cooperative, 2002, the upreme Court said that, a#ter ascertainin$ the clear le$islative intent o# ?A BE/E, it now rules that the Cooperative Development Authorit% (CDA) is devoid o# an% *uasi-(udicial authorit% to ad(udicate intra-cooperative disputes and, more particularl%, disputes related to the election o# o##icers and directors o# cooperatives. It ma% however, conduct hearin$s and in*uiries in the e'ercise o# its administrative #unctions. XH. ?OCCs ection -B. The Con$ress shall not, e'cept b% $eneral law, provide #or the #ormation, or$ani>ation, or re$ulation o# private corporations. &overnment-owned or controlled corporations ma% be created or established b% special charters in the interest o# the common $ood and sub(ect to the test o# economic viabilit%. XHI. Tem#or%r* St%te T%9eAOver Section 1. In times o# national emer$enc%, when the public interest so re*uires, the tate ma%, durin$ the emer$enc% and under reasonable terms prescribed b% it, temporaril% ta4e over or direct the operation o# an% privatel%-owned public utilit% or business a##ected with public interest. T%9eover o, P$-lic Utilities. The power $iven to the :resident to ta4e over the operation o# public utilities does not stand alone. It is activated onl% i# Con$ress $rants emer$enc% powers to the :resident under Article ;I, ection ./. .CC XHII. N%tion%liG%tion o, In"$stries Section 1!. The tate ma%, in the interest o# national wel#are or de#ense, establish and operate vital industries and, upon pa%ment o# (ust compensation, trans#er to public ownership utilities and other private enterprises to be operated b% the &overnment. XHIII. N%tion%liG%tion o, In"$stries Section 16. The tate shall re$ulate or prohibit monopolies when the public interest so re*uires. "o combinations in restraint o# trade or un#air competition shall be allowed. Mono#ol*. A monopol% is 7a privile$e or peculiar advanta$e vested in one more persons or companies, consistin$ in the e'clusive ri$ht (or power) to carr% on a particular business or trade, manu#acture a particular article, or control the sale o# a particular commodit%.8 Clearl%, monopolies are not per se prohibited b% the Constitution but ma% be permitted to e'ist to aid the $overnment in carr%in$ on an enterprise or to aid in the per#ormance o# various services and #unctions in the interest o# the public. @owever, because monopolies are sub(ect to abuses that can in#lict severe pre(udice to the public, the% are sub(ected to a hi$her o# tate re$ulation than an ordinar% business underta4in$ (A$an Ir. v. :IATC2) The Constitution does not absolutel% prohibit monopolies. Thus #or e'ample, an award #or stevedorin$ and arrastre services to onl% one corporation is valid. (:hilippine Authorit% v. )endo>a) Be that as it ma%, in &atad v. Sec., $**,, the upreme Court declared that Article XII, ection -E is anti-trust in histor% and spirit5 it espouses competition. The desirabilit% o# competition is the reason #or the prohibition a$ainst restraint o# trade, the reason #or the interdiction o# un#air competition, and the reason #or the prohibition in unmiti$ated 200 O&iter in David v. "rmita, :.2. 3o. 17140#, &a* 3, 2006. I sweat, I bleed, I soar Service, Sacrifice, Excellence -C- FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW Atty. ARIS S. MANGUERA
monopolies. A mar4et controlled b% one pla%er (monopol%) or dominated b% a hand#ul o# pla%ers (oli$opol%) is hardl% the mar4er where honest-to- $oodness competition will prevail. In this case, it cannot be denied that our downstream oil industr% is operated and controlled b% oli$opol%, #orei$n oli$opol% at that. o, o# onl% to help the ma% who are poor #rom #urther su##erin$ as a result o# unmiti$ated increase in the prices o# oil products due to dere$ulation, it is a must that ?A D-DC be repealed completel%. In &anada v. )ngara, 2,2 SC() $+, the upreme Court said that the 0T2 does not violate Article II ection -E, nor ections -E and -. o# Article XII, because these sections should be read and understood in relation to ections - and -/ o# Article XII, which re*uire the pursuit o# trade polic% that 7serves the $eneral wel#are and utili>es all #orms and arran$ements o# e'chan$e on the basis o# e*ualit% and reciprocit%.8 In )ssociation of @ilippine Coconut Desiccators v. @ilippine Coconut )utorit%, $**+, the upreme Court declared that althou$h the Constitution enshrines #ree enterprise as a polic%, it nevertheless reserves to the &overnment the power to intervene whenever necessar% #or the promotion o# the $eneral wel#are, as re#lected in ections B ad -E o# Article XII. Mono#olies in restr%int o, tr%"e. Contracts re*uirin$ e'clusivit% are not per se void. !ach contract must be viewed vis'M'vis all the circumstances surroundin$ such a$reement in decidin$ whether a restrictive practice should be prohibited as imposin$ an unreasonable restraint on competition. .C- XIX. Centr%l Monet%r* A$t(orit* Section 2I. The Con$ress shall establish an independent central monetar% authorit%, the members o# whose $overnin$ board must be natural-born Ailipino citi>ens, o# 4nown probit%, inte$rit%, and patriotism, the ma(orit% o# whom shall come #rom the private sector. The% shall also be sub(ect to such other *uali#ications and disabilities as ma% be prescribed b% law. The authorit% shall provide polic% direction in the areas o# mone%, ban4in$, and credit. It shall have supervision over the operations o# ban4s and e'ercise such re$ulator% powers as ma% be provided b% law over the operations o# #inance companies and other institutions per#ormin$ similar #unctions. +ntil the Con$ress otherwise provides, the Central Ban4 o# the :hilippines operatin$ under e'istin$ laws, shall #unction as the central monetar% authorit%. 201 Avon v. una, :. 2. 3o. 1$3674, <ecem'er 20, 2006. XX. 4orei)n Lo%ns Section 21. Aorei$n loans ma% onl% be incurred in accordance with law and the re$ulation o# the monetar% authorit%. In#ormation on #orei$n loans obtained or $uaranteed b% the &overnment shall be made available to the public. XXI. Pen%l S%nctions Section 22. Acts which circumvent or ne$ate an% o# the provisions o# this Article shall be considered inimical to the national interest and sub(ect to criminal and civil sanctions, as ma% be provided b% law. I sweat, I bleed, I soar Service, Sacrifice, Excellence -C.