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Last Minute Tips in Political Law: Judge Gener M. Gito, LL.M., D.C.L
Last Minute Tips in Political Law: Judge Gener M. Gito, LL.M., D.C.L
Last Minute Tips in Political Law: Judge Gener M. Gito, LL.M., D.C.L
POLITICAL LAW
by:
1. What are the crimes which are under the jurisdiction of the
International Criminal Court?
2. What is genocide?
For the purpose of this Statute, "genocide" means any of the following
acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such: (a) Killing members of the
group; (b) Causing serious bodily or mental harm to members of the
group; (c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in
part; (d) Imposing measures intended to prevent births within the
group; (e) Forcibly transferring children of the group to another
group.
4. What are the condition before the ICC can exercise jurisdiction over
the crimes under the jurisdiction of the ICC?
Before the ICC can exercise jurisdiction, it is required that the State
must be a state party to the convention. It is provided under the Rome
Statute that the State party is considered deemed to have accepted the
jurisdiction of the ICC (Article 12). ICC shall also have jurisdiction over
those cases referred to it by the Security Council under Chapter VII of
the UN Charter.
5. Can the ICC acquire jurisdiction nationals of non-parties?
YES. The ICC may exercise jurisdiction even over nationals of states
that are not parties to the Treaty and have not otherwise consented to
the jurisdiction. Article 12 provides that, in addition to jurisdiction
based on Security Council action under Chapter VII of the UN Charter
and jurisdiction based on consent by the defendant state nationality,
the ICC will have jurisdiction to prosecute the nationals of any state
when crimes within the Court’s subject matter jurisdiction are
committed on the territory of the state party. Likewise, ICC will have
jurisdiction over non-state party, if it consented to ICC jurisdiction.
9. What are the two ways by which the Constitution may be changed?
11. What are the two (2) tests to determine the kind of change that is
proposed?
Under UNCLOS, archipelagic state has the right to draw baselines but
"[t]he drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago" (Article 47
(3) of UNCLOS III). Kalayaan Group of Islands are located at an
appreciable distance from the nearest shoreline of the Philippine
archipelago (Margallona vs. Ermita).
19. What are the right of a coastal state over maritime zones?
Territorial sea - The coastal state has sovereignty over the territorial
sea subject to this Convention and to other rules of international law
(Art. 2, UNCLOS III).
Contiguous zone - The coastal state has the right to exercise control
necessary to 1) prevent infringement of its customs, fiscal, immigration
or sanitary laws and regulations within its territory or territorial sea;
and, 2) punish infringement of the above laws and regulations
committed within its territory or territorial sea (Art. 33, UNCLOS III).
Exclusive economic zone - The coastal state has the sovereign rights
for the purpose of exploring and exploiting, conserving and managing
the natural resources. It has also jurisdiction over the establishment
and use of artificial islands, installations and structures; marine
scientific research; and, the protection and preservation of the marine
environment (Art. 56, UNCLOS III).
Continental shelf - The coastal state has the exclusive right to explore
and exploit its natural resources therein (Art. 77, UNCLOS III).
NO. From the moment the law becomes effective, any provision of law
that empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this
principle, a provision that requires Congress or its members to
approve the implementing rules of a law after it has already taken
effect shall be unconstitutional, as is a provision that allows Congress
or its members to overturn any directive or ruling made by the
members of the executive branch charged with the implementation of
the law (ABAKADA vs. Purisima).
Pork Barrel System as the collective body of rules and practices that
govern the manner by which lump-sum, discretionary funds,
primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of
government, including its members. (Belgica vs. Executive Secretary,
November 19, 2013).
31. Section 17, Article XII provides that “in times of national emergency,
when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily
take over or direct the operation of any privately owned public utility
or business affected with public interest.” Can this provision be
legally invoked by the President to temporarily take over or direct
the operation of any privately owned public utility or business
affected with public interest during without authority from
Congress?
NO. Without legislation, the President has not power to take over
privately-owned public utility of business affected with public
interest. In short, the President has no absolute authority to exercise all
the power of the State under Section 17, Article XII in the absence of an
emergency powers act passed by Congress (David vs. Arroyo, 489 SCRA
161).
Completeness test - The law must be complete in all its essential terms
when it leaves the legislature so that there will be nothing left for the
delegate to do when it reaches him except to enforce it. A law is
complete when it sets forth therein the policy to be executed, carried
out or implemented by the delegate (Pelaez vs. Auditor General, 122
Phil. 965).
34. Congress passed a law which provides that all candidates for
elective public office should undergo mandatory drug testing. Law
provides that those who will not undergo drug testing, they will be
allowed to assume the function of the office for which they were
elected, even if they were proclaimed. Is the law valid?
No. Under the constitution, each province shall have at least one (1)
representative. Thus, the creation of a province carries with it the
creation of legislative district. And only Congress can create a
legislative district. Therefore, only Congress can create a province
(Sema vs. COMELEC).
The sole judge of all contests relating to the election, returns, and
qualifications of the members of the Senate and the House of
Representatives (Section 17, Article VI).
44. When does the jurisdiction of the Comelec over the candidates for
House end and when does the jurisdiction of the Electoral Tribunal
begins?
When the president signs it. When the president vetoes it, but the veto
was overridden by two thirds of all the members of the House. When
the president does not act upon it within thirty days after it shall have
been presented to him.
48. May the President approve some part or parts of the bill and
veto the rest?
Sec. 25(1), Art. VI - Section 25. (1) The Congress may not increase the
appropriations recommended by the President for the operation of the
Government as specified in the budget. The form, content, and manner
of preparation of the budget shall be prescribed by law.
Section 25(2), Art VI - No provision or enactment shall be embraced
in the general appropriations bill unless it relates specifically to some
particular appropriation therein. Any such provision or enactment
shall be limited in its operation to the appropriation to which it relates.
The following are considered savings under the law: 1) Funds which
are still available after the completion or final discontinuance or
abandonment of the work, activity or purpose for which the
appropriation is authorized. 2) There can be savings when there is
unpaid compensation and related costs pertaining to vacant positions.
3) There can be savings from cost-cutting measures adopted by
government agencies (Araullo vs. Aquino III).
55. What are the requisites for the valid transfer of appropriated funds
under Section 25(5), Article VI of the 1987 Constitution?
56. What is the difference between the power of Congress under Section
22 (Question hour) and its power to conduct legislative
investigation?
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid claim
of privilege. They are not exempt by the mere fact that they are
department heads. Only one executive official may be exempted from
this power — the President on whom executive power is vested, hence,
beyond the reach of Congress except through the power of
impeachment (Senate vs. Ermita).
58. Can Congress compel the justices of the Supreme Court to appear
during congressional inquiry?
No. By the same token, members of the Supreme Court are also exempt
from this power of inquiry. Unlike the Presidency, judicial power is
vested in a collegial body; hence, each member thereof is exempt on
the basis not only of separation of powers but also on the fiscal
autonomy and the constitutional independence of the judiciary (Senate
vs. Ermita).
60. For how long can the Congress detain a person cited for legislative
contempt?
The Court finds that the period of imprisonment under the inherent
power of contempt by the Senate during inquiries in aid of legislation
should only last until the termination of the legislative inquiry under
which the said power is invoked (Balag vs. Senate, 2018).
61. The law allows the holder of appointive position in the executive
department hold any other office other than he is presently holding.
Is the law constitutional?
No. Prohibition under Section 15, Article VII does not apply to
appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary (De Castro vs. JBC)
63. The signing of the appointing papers and the transmittal of the same
was made before the ban but the acceptance and oath of office
happened during the ban. Is the appointment valid?
The following are the military powers of the president: 1) calling out
power; the power to suspend writ of habeas corpus; 3) the power to
declare martial law? (Section 18, Art. VI).
68. What are the limitations on the military power of the president?
b. The grounds for the suspension of the privilege of the writ of habeas
corpus and the proclamation of martial law are now limited only to
invasion or rebellion.
c. The duration of such suspension or proclamation shall not exceed
sixty days, following which it shall be automatically lifted.
e. The Congress may then, by majority votes of all its members voting
jointly, revoke his action. The revocation may not set aside by the
President.
f. By the same vote and in the same manner, the Congress may, upon
initiative of the President, extend his suspension or proclamation
for a period to be determined by the Congress if the invasion or
rebellion shall continue and the public safety requires extension.
h. Martial law does not automatically suspend the privilege of the writ
of habeas corpus or the operation of the Constitution. The civil
courts and the legislative bodies shall remain open. Military courts
and agencies are not conferred jurisdiction over civilians where the
civil courts are functioning.
71. What quantum of proof does the President need to satisfy for the
declaration and/or suspension?
76. Can congress pass a law, increasing the appellate jurisdiction of the
Supreme Court?
77. Can Congress pass a law prohibiting the court from issuing TRO or
Injunction?
NO. This will violate the rule making power of the Supreme Court
under Section 5(5). The issuance of TRO or injunction is a matter of
procedure which is under the exclusive prerogative of the Supreme
Court.
78. In order to decongest the cases pending before the Supreme Court,
the Congress passed a law which provides that the judgement of the
Court of Appeals in criminal cases imposing a penalty of reclusion
perpetua is final and executory and that said decision may not
anymore be questioned by whatever procedural means. Is the law
constitutional?
79. What are the subject of the rule making power of the Supreme
Court?
1.The protection and enforcement of constitutional rights;
2. Pleading, practice, and procedure in all courts;
3. The admission to the practice of law,
4. The Integrated Bar;
5. Legal assistance to the underprivileged.
80. The law provides: SEC 23. Plea-Bargaining Provision. -Any person
charged under any provision of this Act regardless of the imposable
penalty shall not be allowed to avail of the provision on plea-
bargaining. Is the law constitutional?
No. Under Section (3), Article IX-C, the COMELEC can decide all
question relating to election except the right to vote?
The following are the requisites for a valid ordinance: 1) It must not be
contrary to the Constitution or law; 2) It must not be unfair or
oppressive 3) It must not be partial or discriminatory; 4) It must not
prohibit but regulate trade; 5) It must not be unreasonable
91. What is the nature of the taxing power of the local government units?
95. When will the 3 term limit of local elective officials apply?
Two requisites must concur: 1) Official must have been elected to the
same position 3 times; 2) He must have served three full terms.
96. What are the rules on term limits of local government elective
officials?
b. If the official runs again for the same position he held prior to his
assumption of the higher office, then his succession to said position
is by operation of law and is considered an involuntary severance
or interruption (Montebon v. COMELEC, [2008]).
c. An elective official, who has served for three consecutive terms and
who did not seek the elective position for what could be his fourth
term, but later won in a recall election, had an interruption in the
continuity of the official’s service. For, he had become in the
interim, i.e., from the end of the 3rd term up to the recall election, a
private citizen (Adormeo v. Comelec, [2002]); Socrates v. Comelec,
[2002]).
g. The break or interruption need not be for a full term of three years
or for the major part of the 3-year term; an interruption for any
length of time, provided the cause is involuntary, is sufficient to
break the continuity of service (Socrates v. Comelec; Lonzanida v.
Commission on Elections).
The voters of the unit or units directly affected (Tan vs. Comelec,
[1986]).
Gutierrez vs. The House of Representatives, Feb. 25, 2011, rules that
“an impeachment complaint need not alleged only one impeachable
offense.” In fact, multiple complaints may be considered so long as
they would all be simultaneously referred or endorsed to the proper
committee.
All lands are owned by the “Crown.” This is reflected in the 1987
Constitution. Thus: “All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State.”
No. The minerals are owned by the State under the “regalian
doctrine”. The land is thus converted into mineral land. For the loss
sustained by the owner, he is entitled to compensation (Republic vs.
CA, 160 SCRA 228).
107. Are there lands which are not covered by regalian doctrine?
Yes. When, as far back as testimony or memory goes, the land has been
held by individuals under a claim of private ownership, it will be
presumed that to have been held in the same way from before the
Spanish conquest, and never to have been public land (Carino vs.
Insurer, 41 Phil. 935; Cruz vs. DENR).
108. Who are qualified to take part with the State in the exploration,
development and utilization of natural resources?
110. When husband and wife purport to buy land, and the husband is
alien while the wife is Filipino, is the property conjugal such that it
may not be disposed of without the consent of the husband?
The seller may question the sale made to the alien. The principle of pari
delicto is not applicable (Philippine Banking corporation vs. Lui She,
[1967]).
No. The Constitution provides that the CHR has the power to
“investigate, on its own or on complaint by any party, all forms of
human rights violations involving civil and political rights.” (Section
18, Article XIII; Simon, Jr. vs. CHR, [1994]).
It is the power of the State to regulate liberty and property for the
common good. The power of promoting the public welfare by
restraining the use of liberty and property.
Police power (Manila Memorial Park, Inc., vs. Secretary, December 13,
2013).
118. What are the two (2) tests to determine the validity of the exercise of
police power?
Lawful subject – the interest of the public generally, as distinguished
from those of a particular class, require the exercise of police power.
Lawful means – the means employed are reasonably necessary for the
accomplishment of the purpose and must not be unduly oppressive.
119. A LGU passed an ordinance levying a special assessment equivalent
to one-half percent (0.5%) of the assessed value of Land in excess of
One Hundred Thousand Pesos (Php100,000.00) shall be collected by
the City Treasurer which shall accrue to the Socialized Housing
Programs of the Quezon City Government. The special assessment
shall accrue to the General Fund under a special account to be
established for the purpose. The fund will be used for the benefit of
informal settlers. Petitioners questioned the constitutionality of the
ordinance on the ground that people should not be required to pay
for the services that the government is mandated to do. Further, It is
a form of class legislation since it favors informal settlers who
occupy property not their own and pay no taxes, over law-abiding
real property owners who pay income and realty taxes.
YES. Section 6, Article XII provides that the use of property bears a
social function, and all economic agents shall contribute to the
common good. Individuals and private groups, including
corporations, cooperatives, and similar collective organizations, shall
have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands. Property rights of
individuals may be subjected to restraints and burdens in order to
fulfill the objectives of the government in the exercise of police power.
In this jurisdiction, it is well-entrenched that taxation may be made
the implement of the state's police power (Ferrer vs. Bautista, 2015).
The power to take private property for public use upon payment of
just compensation.
123. What is the remedy of the land owner if the government refused to
pay the just compensation?
124. The Congress passed a law proving for a formula by which the Court
can compute the amount of just compensation. Is the Court bound
by the formula?
Otherwise, the judge runs the risk of violating the agrarian reform law
should he choose not to use the formula laid down by the DAR for the
determination of just compensation. The Court reaffirmed this
established jurisprudential rule in Alfonso v. Land Bank of the Philippines
when it categorically gave "full constitutional presumptive weight and
credit to Section 17 of RA 6657, DAR AO No. 5 (1998) and the resulting
DAR basic formulas." (LDP vs. Spouses Esteban, 2017).
125. When does life begin?
Life commences upon “conception” that is upon fertilization. When
the egg cell and sperms meet, then there life begins. Hence, the
obligation upon the State to “equally protect the life of the mother and
the life of an unborn from conception” prevents the legislature from
legalizing abortion (Imbong vs. Ochoa).
The strict scrutiny test applies when a classification either (i) interferes
with the exercise of fundamental rights, including the basic liberties
guaranteed under the Constitution, or (ii) burdens suspect classes.
Lastly, the rational basis test applies to all other subjects not covered
by the first two tests (Samahan ng mga Progresibong Kabataan vs.
Quezon City, GR No. 225442, August 8, 2017).
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects can
or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone,
nor can they not cause the government to restrict other groups. To do
so, in simple terms, would cause the State to adhere to a particular
religion and, thus, establishing a state religion.
The Court is of the view that the obligation to refer imposed by the RH
Law violates the religious belief and conviction of a conscientious
objector. Once the medical practitioner, against his will, refers a patient
seeking information on modern reproductive health products,
services, procedures and methods, his conscience is immediately
burdened as he has been compelled to perform an act against his
beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas)
has written, "at the basis of the free exercise clause is the respect for the
inviolability of the human conscience." (Imbong vs. Ochoa).
135. Angela Tan, a high school student at St. Theresa’s College (STC),
uploaded on Facebook several pictures of her and her classmates
(Nenita Daluz and Julienne Suzara) wearing only their
undergarments. Thereafter, some of their classmates reported said
photos to their teacher, Mylene Escudero. Escudero, through her
students, viewed and downloaded said pictures. She showed the
said pictures to STC’s Discipline-in-Charge for appropriate action.
Is the right of the children to privacy violated?
Police line-up is not part of the custodial investigation; hence, the right
to counsel guaranteed by the Constitution cannot yet be invoked at
this stage. This is because during a police line-up, the process has not
yet shifted from the investigatory to the accusatory and it is usually
the witness or the complainant who is interrogated and who gives a
statement in the course of the line-up (People v. Amestuzo, 413 Phil.
500 (2001; People vs. Escordial, January 16, 2002).
146. What are the requisites for the validity of administrative rule with
penal sanction?
149. What is a petition to deny due course the certificate of candidacy and
on what ground?
151. What is the effect if the certificate of candidacy is declared void for
lack of material misrepresentation?
A cancelled certificate of candidacy void ab initio cannot give rise to a
valid candidacy, much less valid votes. If one’s certificate of candidacy,
much less valid votes. If one’s certificate is void ab initio, then there was
never a candidate. The Court ruled that a cancelled certificate of
candidacy void ab ignition cannot give rise to a valid candidacy, and
much less to valid votes. Thus, the “second placer” candidate is
deemed to have garnered the highest number of votes and is entitled
to hold the corresponding elective position (Aratea vs. COMELEC,
2012).
154.