UNIVERSITY OF SANTO TOMAS, FACULTY OF CiviL LAW (1734) POLITICAL LAW Pre-Week Notes 2022 ACADEMICS COMMITTEE SECRETARY GENERALS: Francine Blaise M. Loja & Joanna Nicole A. Paz EXECUTIVE COMMITTEE FOR POLITICAL LAW: Maria Crisanta M. Paloma EXECUTIVE COMMITTEE FOR TAXATION Law: Mikaela Cecille S. Silverio EXECUTIVE COMMITTEE: Marc Gabriel A. Abella, Kiara Louise T. Baliwag, Danielle B, Baranda, Ma. Carmina A. Dieta, Dainiele Renee R. Fajilagutan, Georjhia Czarinah Q. Malaluan Layout Artist: Angela Beatrice S. Pefia Potirica Law PRE-WEEK COMMITTEE Subject HEAD For PouiticaL Law: Katherine S. Policarpio Supject HEAD FOR TAXATION LAW: Alexander J. Cairo MEmpeRs: Marie Angelique M. Aquino, Mary Angelica B. Bassig, Lyn Jeen I. Binua, Danie Lois B. Bautista, Jan Ysabel U. De Leon, Patrisha Louise E. Dumanil, Sarah May D. Medalle, Priscilla Lee V. Morales, Danica Ella C. Nagorite, Maria Lourdes R. PrincipeDISCLAIMER THE RISK OF USE OF THIS BAR REVIEW MATERIAL SHALL BE BORNE BY THE USER Academics Committee Faculty of Civil Law University of Santo Tomas Espafia, Manila 1008 Allrights reserved by the Academics Committee of the Faculty of Civil Law of the Pontifical and Royal University of Santo Tomas, the Catholic University of the Philippines. 2022 Edition. No portion of this material may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devises or in any other form, for distribution or sale, without a written permission, A copy of this material without the corresponding code either proceeds from an illegal source or is in possession of one who has no authority to dispose the same. Released in the Philippines, 2022.PRE-WEEK NOTES 2022 1. BASIC CONCEPTS UNDER THE 1987 CONSTITUTION A. DECLARATION OF PRINCIPLES AND STATE POLICIES ‘Separation of Church and State ‘Theories on the Separation of Church and State 1. Separation Standard - May take the form of either {a) strict separation, or (b) the tamer version of strict neutrality, or what Justice Carpio refers toas the second theory of governmental neutrality. Benevolent Neutrality Approach (2016 BAR) ~ The “wall ofseparation” is meant to protect the church from. the State, It believes that with respect to governmental actions, accommodation of religion may be allowed, not to promote the government's favored form of religion, Dut to allow individuals and groups to exercise their religionwithout hindrance (#strada v. Escritor, AM. No. 02-1651, 22 June 2006) NOTE: In the Philippine context, the Court categorically ruled that, “the Filipino people, inadopting the Constitution, manifested their adherence to the benevolent neutrality approach that requires accommodations in interpreting the religion clauses.” (Estrada v. Escritor, A.M. No. P-02-1651, 22 June 2006) ‘Conscientious Objector Approach Everyone has the right to freedom of thought, conscience, and religion. This right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance. (Art.18, Universal Declaration of Human Rights) In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the State, onthe other, to provideaccess and information on reproductive health products, services, procedures and methods to enable the people to determine the timing, number and spacing of the birth of their children, the religious freedom of health providers, whether public or private, should be accorded primacy. A conscientious objector should be exempt from compliance with the mandates of the RH Law. Ifthey would be compelled to act contrary to their religious belief and. conviction, it would be violative of the principle of non- coercion enshrined in the constitutional right to free exercise of religion. (Imbong v. Ochoa, GR. No, 204819, 08 Apr. 2014) B. NATIONAL TERRITORY Composition of the Philippine Territory The national territory comprise 1. The Philippine archipelago, with all the islands and waters embraced therein; and 2. All other territories over which the Philippines has sovereignty or jurisdiction, consisting of: a. Its terrestrial, fluvial and aerial domains b. Including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. , SEPARATION OF POWERS Doctrine of Separation of Powers Legislation belongs to the Congress, implementation to the executive, and settlement of legal controversies and adjudication of rights to the judiciary. Each department has ‘exclusive cognizance of and is supreme in matters falling ‘within its own constitutionally allocated sphere. Each is therefore prevented from invading the domain of the others, ‘Plea bargaining in drug cases Plea bargaining operates as a means to implement an existing right by regulating the judicial process for ‘enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a Aisregard or infraction of them. (Estipona v.Lobrigo, GR. No. 226679, 15 Aug. 2017) ‘The power to promulgate rules of pleading, practice and procedure is exclusive domain of the Judicial department and no Ionger shared with the Executive and Legislative departments, The adoption of the plea-bargaining framework in Drug Cases under Sec. 23 of RA. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002 is "unconstitutional for the inclusion of the provision in the kaw encroaches on the exclusive constitutional power of the Supreme Court, (Estipona v. Lobrigo, GR. No. 226679, 15 Aug. 2017) Pres, Benigno Aquino Ill signed £0, No. 1 establishing the Philippine Truth Commission, a special body to investigate reported cases of graft and corruption allegedly committed during the Arroyo administration, Is E.0, No. 1 constitutional? NO. The President has no power to create a public office. I is not shared by Congress with the President, until and unless Congress enacts legislation that delegates a part of UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAWPOLITICAL LAW the power to the President, or any other officer or agency. It Js a settled rule that the President's power of control ean only mean the power of an officer to alter, modify, or set aside what a subordinate officer had done in the performance of his duties, and to substitute the judgment of the former for that of the latter. As such, the creation by the President of a public office like the ‘Truth Commission, without either a provision of the Constitution or a proper law enacted by Congress authorizing such creation, is not an act that the power of control includes. (Biraogo v. The Philippine Truth Commission, GR. No. 192935, 07 Dec. 2010, Bersamin, |. separate opinion) Q Joey Tribbiani was convicted of Estafa, When his case reached the Supreme Court, some Justices proposed to alter the penalties provided for under RPC on the basis of the ratio of P1.00 to P100.00, believing that it is not, fair to apply the range of penalties, which was based on. the value of money in 1932, to crimes committed at present. However, other justices opposed the said proposal for it amounts to judicial legislation, Is the opposition correct? [A: YES. The opposition is correct because the Court cannot modify the said range of penalties because that would constitute judicial legislation, What the legislature's perceived fallure in amending the penalties provided for in the said crimes cannot be remedied through this Court's decisions, as that would be encroaching upon the power of another branch of the government. Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative powers by judicial legislation and that in the course of such application or construction, it should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the la the law a construction which is fepugnant to its terms. Suecinctly put, the Court should shy away from encroaching, upon the primary function of a co-equal branch of the Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation, (Corpuz v. People, GR. No. 180016, 29 Apr. 2014) D. CHECKS AND BALANCES Principle of Checks and Balances Allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments. (Cruz, 2014) E,STATE IMMUNITY Doctrine of State Immunity. The State may not be sued without its consent. (Sec. 3. Art XVI, 1987 Constitution) GR: All states are sovereign equals and cannot assert jurisdiction over one another, consonant with the public international law principle of par in parem non habet imperium. & contrary disposition would “unduly vex the peace of nations." (Arigo v. Swift, GR. No. 206510, 16 Sept 2014) Likewise, public officials may not be sued for acts done in the performance of their official functions or within the scope of their authority. (DOH v. Phil. Pharmawealth, Inc, GR, No, 182358, 20 Feb, 2013) NOTE: The rule is that ifthe judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, the suit may be regarded as against the state Itself although it has not been formally impleaded. (Garcia v. Chief of Staff 6.8. No. L-20213, 31 Jan, 1966) XPN: A State may be sued If It gives const express or implied. \t, whether: Capacities ofthe State in entering into contracts 1, In jure gestionis - By right of economic or business relations; commercial, or proprietary acts. MAY BE SUED. (US v, Guinto, G.R. No. 76607, 26 Feb. 1990) NOTE: The State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts, Consequently, the restrictive application of State Immunity is proper only in such, case. (Restrictive Theory of State Immunity from suit) 2, In jure imperii - By right of sovereign power and in the exercise of sovereign functions. No implied consent. (US v. Rulz, GR, No. L-35645, 22 May 1985) NOTE: In exercising the power of eminent domain, the State exercises a power jure imperi. Yet, it has been held that where property has been taken without the payment of just compensation, the defense of immunity from suit cannot be set up in an action for payment by the owner. (Republic v. Sandiganbayan, GR. No, 90478, 21 Nov, 1991) gg) UNIVERSITY oF Santo Tomas 2022 GOLDEN NoTESPRE-WEEK NOTES 2022 Q: Do all contracts entered into by the government operate asa waiver of its non-suability? 10. Distinction must still be made between one which Is executed In the exercise of Its sovereign function and another which Is done in its proprietary capacity. A State may be said to have descended to the level of an individual and can be deemed to have actually given its consent to be sued only when it enters into business contraets. It does not apply where the contract relates to the exercise of its sovereign functions, (Department of Agriculture ¥. NERCGR. No, 104269, 11 Nov. 1993) ‘When suit is considered as suit against the State 1. The Republic is sued by name; 2. The suit is against an unincorporated government agency performing propriety functions; and 3. The suitis om its face against a goverment officer, but the case is such that ultimate liability will belong to the ‘government. (Republic v. Sandoval, GR. No. 84607, 19 Mar. 1993) Q: EA. Ramirez filed before the RTC a Complaint for Breach of Contract with Damages against PTRI and a number of its employees. EA. Ramirez alleged that PTRI acted in bad faith in terminating their Contract of Work. PTRI ct al. filed a Motion to Dismiss, Invoking the privilege of state immunity from suit. They asserted that PTRI is an agency of the Department of Science and. Technology (DOST) and thus cannot be sued without the consent of the State. PTRI alleged that the immunity extended to the impleaded employees of PTRI since they were sued while they were performing official or governmental functions. Is PTRI et al, correct? ‘A: NO. It is not disputed that PTRI is an unincorporated national government agency. Hence, being an unincorporated government agency that exercises a governmental function, the PTRIenjoys immunity from suit Further, its employees acting in their official capacity kewise enjoy this immunity from suit, as public officials ‘may not be sued for acts done in the performance of their official functions or within the scope of their authority. However, the rule on State immunity from suit is not absolute. The State may be sued with its consent, which may be giveneither expressly or impliedly. Express consent may be made through a general law or a special law. The general law waiving the Immunity of the state from suit is found in Act No. 3083. There is implied consent when the State enters into a contract. In this situation, the government is deemed to have descended to the level ofthe other contracting party and to have divested. itself of its sovereign immunity. However, not all contracts, centered into by the government operate as a walver of its non-suability; distinction must still be made between one ‘which is executed in the exercise of its sovereign functions and another which is done in its proprietary capacity. Here, not only did PTRI descend to the level of acontracting, parly by entering into the subject contract, under the subject contract Itself, which contemplated a situation ‘wherein legal action may arise from the execution of the agreement and incorporating provisions on the procedures to be undertaken in settling legal disputes, PTRI also ‘manifested unequivocally its consent to be subjected to suit ‘with respect to disputes arising from the subject contract. (Philippine Textile Research Institue, et al. v. Court of Appeals and E.A. Ramirez Construction, Inc. GR.No. 223319, 09 Oct. 2019, J. Cagutoa) Gamishment of government funds GR: Whether the money Is deposited by way of general or special deposit, they remain goverment funds and are not subject to garnishment XPN: Where a law of ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished. NOTE: Funds belonging to government corporations, which ‘can sue and be sued and are deposited with a bank, can be ‘garnished. (PNB v. Pabalan, GAR, No, 1-33112, 15 June 1978) If the local legislative authority refuses to enact a law appropriating the money judgment rendered by the court, the winning party may file a petition for mandamus to ‘compel the legislative authority to enact alaw. (Municipality, of Makati v.CA, GR. Nos. 89898-98, 01 Oct 1990) money judgments against it, except in the following instances: (Em-Er-Go) 1. Exercise of the power of 2. Erroneous collection of taxes 3. Where Gavernnient agrees to pay interest pursuant to law F, DELEGATION OF POWERS be 7 sit GR: What has been delegated cannot he delegated. 11 is based upon the ethical principle that such delegated power constitutes not only as a right, but also as a duty to bbe performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. A further delegation of such power, unless permitted by the sovereign power, would constitute a negation ofthis duty in violation of the trust reposed in the delegate. (cruz, 2014) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAWPOLITICAL LAW XPNS: 1, Delegations to the People at large; a, R.A. 6735 ~ The Initiative and Referendum Act as authorized by the constitutional mandate for the creation of a system of legislation by initiative and referendum b. A plebiscite is required in the creation, division, merger, abolition of province, city, municipality, or barangay or the substantial alteration of its boundary. NOTE: These are more of reservations of power by the people than delegations considering the fact that the people are repositories ofall governmental powers. 2, Emergency powers of the President; 3. Tariff powers of the President; 4. Delegation to local governments; and 5. Delegation to administrative bodies of the power of subordinate legislation, (Cruz, 2014) Emergency Powers For the delegation of emergency powers to the President to be valid, the following requisites must concur: (N-A-LI-Res) 1. Itis done during war or National emergency 2. It must Allow the President to exercise such powers which are necessary and proper to carry outadeclared national policy 3. Such exercise must be for a Limited period only. NOTE: If the Congress does not expressly take back the power by means of a Resolution, the same shall cease upon its next Adjournment. 4. Such exercise must be subject to Restrictions prescribed by the Congress. (Sec. 23 (2), Art. VI, 1987, Constitution) NOTE: The Congress, through a law, may authorize the President to exercise such emergency powers necessary and proper to carry out a national policy. (ibid) This specific provision of the Constitution was applied in the Bayanihan to Heal as One Act, wherein former President Rodrigo Duterte was given temporary emergency measures to respond to the crisis brought by the COVID-19 pandemi (Sec-4, RA, No, 11469, Bayanihan to Heal as One Act) ‘Tests for Valid Delegation 1. Completeness Test - The lave must be complete in itself, setting forth therein the policy to be executed, carried ut, or implemented by the delegate. 2. Sufficiency Standard Test "The law must fixa standard, the limits of which are sufficiently determinate or determinable, to which the delegate must conform in the performance of his functions. NOTE: For subordinate legislation to be valid, the Administrative Code of 1987 requires the filing of rules adopted by the administrative agencies with the UP Law Center, in addition to compliance with completeness test and sufficient standard test. (Quezon City PTCA Federation, Inc. v. DepEd, GR. No, 188720, 23 Feb. 2016) ‘The Kindergarten Education Act institutionalized kindergarten education, which is one (1) year of preparatory education for children at least five years old, as part of basic education, and is made mandatory and compulsory for entrance to Grade 1. On the other hand, to be at par with international standards and in line with the country’s commitment in EFA 2015, the Philippine Congress, on 15 May 2013, passed the K to 12 Law. One of its salient features is expansion of basic education from ten (10) years to thirteen (13) years, encompassing “at least one (1) year of kindergarten education, six (6) years of elementary education, and six (6) years of secondary education. Secondary education includes four (4) years of junior high school and two (2) years of senior high school education.” Claiming that the K to 12 Basic Education Program violates various constitutional provisions, petitions were filed before the Court praying that the Kindergarten Education Act, K to 12 Law, K to 12 IRR, DONo.31, Joint Guidelines, and CMO No. 20, be declared unconstitutional. Are the petitioners correct? A.NO. There is no undue delegation of legislative power in the enactment of the K to 12 Law. In determining whether or not a statute constitutes an undue delegation of legislative power, the Court has adopted two tests: the ‘completeness test and the sufficient standard test. Clearly, under the two tests, the K to 12 Law, read and appreciated in its entirety, is complete in all essential terms and conditions and contains sufficient parameters on the power delegated to the DepEd, CHED, and TESDA. The fact that the K to 12 Law did not have any provision on labor does not ‘make sald law incomplete. The purpose of permissible delegation to administrative agencies Is for the latter to “implement the broad policies laid down in a statute by ‘filling in’ the details which the Congress may not have the opportunity or competence to provide.” With proliferation of specialized activities and their attendant peculiar problems, the legislature has found itnecessary to entrust to administrative agencies, who are ‘supposed to be experts in the particular fields assigned to them, the authority to provide direct and efficacious solutions to these problems. ‘This is effected by the promulgation of supplementary regulations, such as the K to 12 ITT jointly issued by the DepEd, CHED and TESDA and the Joint Guidelines issued in gg) UNIVERSITY oF Santo Tomas 2022 GOLDEN NoTESPRE-WEEK NOTES 2022 coordination with DOLE, to address in detail labor and ‘management rights relevant to implementation of the K 10 42 Law. (Council of Teachers and Staff of Colleges and Universities of the Philippines v, Secretary of Education, GR. Nos, 216920, 217451, 217725 218045, 218098, 218123 & 210465, 09 Oct. 2018, J. Caguioa) G. FUNDAMENTAL POWERS OF THE STATE Pe Police power is the power of the state to promote public ‘welfare by restraining and regulating the use of liberty and property. It is the most pervasive, the least limitable, and the most demanding of the three fundamental powers ofthe State. The state, In order to promote general welfare, may interfere with personal liberty, with property, and with business and occupations. Persons may be subjected to all Kinds of restraint and burdens in order to secure the general comfort, health and prosperity of the state and to this fundamental aim of our Government, the rights of the individual are subordinated. (Ortigas and Co, Limited Partnership v. Feati Bank and Trust Co, GR No. L-24670, 14 Dec. 1979) ‘Requisites fora valid exercise of police power 1. Lawful subject ~ The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power, and 2. Lawful means ~ The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon Individuals, (National Development Company and New Agrix, Inc. v. Philippine Veterans Bank GR. Nos. 84132-33, 10 Dec. 1990) Q: President Rodrigo Duterte issued Prodamation No. 475 formally declaring a state of calamity in Boracay and ordering its closure for six (6) months. Duc to this, Boracay residents Mark Anthony Zabal and Thiting, Jacosalem filed the present petition alleging that they ‘would suffer grave and irreparable damage as their livelihood depends on the tourist activities therein, They attacked the order on the ground that it is an invalid exercise of legislative powers. Is the order invalid? A: NO. That the assailed governmental measure in this case is within the scope of police power cannot be disputed, Verily, the statutes from which the said measure draws authority and the constitutional provisions which serve as, its framework are primarily concerned with the environment and health, safety, and well-being of the people, the promotion and securing of which are clearly legitimate objectives. of governmental efforts and. regulations. (Zabat v, Duterte, GR, No, 238467, 12 Feb, 2019) Q:Can MMDA exercise police power? ‘A: NO. The MMDA cannot exercise police powers since its powers are limited to the formulation, coordination, regulation, Implementation, preparation, managenient, monitoring, setting of policies, installing a system, and administration. Nothing in RA. No. 7924 granted the MMDA police power, let alone legislative power (MMDA. v. ‘Trackworks, GR. No. 179554, 16 Dec. 2009) TIMI Eminent domain is the right or power of a sovereign state to appropriate private properly to uses to promote public welfare, It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfare, The power of eminent domain is inseparable in sovereignty being essential to the existence of the State and Inherent in government. (NTC ws. Oroville Dev't Corp, GR. No. 223366, 01 Aug. 2017) Requisites fora valid talsing (Pri-Mo-L-Pr-U) 1. ‘The expropriator must enter a Private property; 2. Entry must be for more thana Mementary period; Entry must be under warrant or color of Legal authority; 4. Broperty must be devoted to public use or otherwise informally appropriated or injuriously affected: and 5. Uilization of property must be in such away as to oust the owner and deprive him of benefictal enjoyment of the property. (Republic v. De Castellvi, G.R. No. L-20620, 15Aug. 1974) ‘Requisites_before_an_LGU_can_exercise Eminent Domain: (0-Pu-J-0) 1. An Qrdinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property; 2. ‘The power of eminent domain Is exercised for Public use, purpose or welfare, or for the benefit of the poor and the landless; 3. There is payment of Just compensation; and. 4. Avalid and definite Offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. (City of Manila v. Roces- Prieto, GR. No, 221366, 08 July 2019) UNIVERSITY OF SANTO TOMAS () FACULTY OF CIVIL LAWPOLITICAL LAW Concept of Vicarious Benefit This abandons the traditional concept that number of actual beneficiaries determines public purpose. Public use now includes the broader notion of indirect public advantage, Le, conversion of a slum area into a model housing community, urban land reform and housing. There is a vicarious advantage to the society. (Filstream international Incorporated v. CA, GR, No, 125218, 23 Jan, 1998) Period to determine just compensation GGR: Just compensation must be reckoned from the time of taking or filing ofthe complaint, whichever came first. (TC vs Oroville Dev't. Corp, GR. No. 223365, 01 Aug. 2017) XPN: At the time the inverse condemnations proceedings were instituted, I. GENERAL PRINCIPLES OF TAXATION A. DEFINITION, CHARACTERISTICS AND PURPOSE OF TAXATION mm ERISTICS POZO Q: What are the characteristics of Taxation? \: The characteristics of taxation are: (C-U-P-S) 1. Comprehensive ~ as it covers persons, businesses, activities, professions, rights and privileges. 2. Unlimited - the power to impose taxes is one so unlimited in force and so searching in extent, that courts scarcely venture to declare that it Is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. (Tio v, Videogram Regulatory Board, GR. No. L- 75697, 18 june 1987) Plenary - as it is complete. Under the National Internal Revenue Code (NIRC), the Bureau of Internal Revenue (BIR) may avail of certain remedies to ensure the collection of taxes. 4, Supreme - insofar as the selection of the subject of taxation is concerned. It cannot be interpreted to mean that it is superior to the other inherent powers of the government. (Dimaampao, 2021) Q:What are the characteristics of Tax? \: The following are the characteristics of tax: (P!-E-R-L® 1. Broportionate in character ~ taxes are based on one's ability to pay. 6 Under Sec, 28(1), Art. VI of the 1987 Constitution, the rule of taxation shall be uniform and equitable, The Congress shall evolve a progressive system of taxation. Generally Bayable in money ~ unless the law prescribes another form or kind of payment (4e, backpay certificates under Sec. 2, RA. No. 304, as amended) Moreover, a tax is a pecuniary burden, (ingles, 2021) Enforced contribution - taxes are obligations created by law (Vera v. Fernandez, 6.8. No. L-31364, 30 Mar. 1979) Paid at Regular periods or intervals Levied on persons, property or exercise of a right or privilege Levied by the State having jurisdiction over the subject to be taxed Levied by the legislature - such power is exclusively vested in the legislature except where the 1987 Constitution provides otherwise. Levied for a public purpose - taxes are exacted only for a public purpose. They cannot be used for purely private purposes or for the exclusive benefit of private persons. It is the purpose which determines the public character of the tax law, not the number of persons benefited. (Dimaampao, 2021) gg) UNIVERSITY oF Santo Tomas 2022 GOLDEN NoTESPRE-WEEK NOTES 2022 B, POWER OF TAXATION AS DISTINGUISHED FROM POLICE POWER AND EMINENT DOMAIN Pen inguish the power of taxation, from police power, and eminent domain E ror AS to Authority Who Exercises the Power TIT Government or its political st Government or its political subdivision As to Purpose Government or public companies and public utilities To raise revenue in support of the Government; regulation is merely incidental. To promote general welfare through regulations To facilitate the taking of private property for public purpose. AS to Persons Affected Upon the community or class of Individuals. Upon the community or class of individuals. On an individual as the owner of a particular property. As to Amount of Monetary imposition No ceiling except inherent limitations, imited to the cost of regulation, Issuance of license, or surveillance. No imposition; the owner is paid just ‘compensation for his property. As to Benefits Received NO DIRECT BENEFIT Protection of a secured organized society, benefits recelyed from the: ‘government. NO DIRECT BENEFIT Maintenance of healthy economic standard of society, intangible altruistic focling that he has contributed to the general welfare. DIRECT BENEFIT ‘The person receives just compensation. AS to Non-Impairment of Contracts ‘Tax laws generally do. not impair contracts unless the government is party to a contract granting exemption fora consideration. Contracts may be impaired. As to Transfer of Property Rights Contracts may be impaired, ‘Taxes paid become part of public funds. No transfer but only restraint on its Expropriated private property becomes property of the State, As to Scope Alll persons, property and excises. All persons, property and excises, Private property upon payment of just ‘compensation, UNIVERSITY OF SANTO TOMAS (2 FACULTY OF CIVIL LAWPOLITICAL LAW Q R.A. 9257 took effect, amending RA. 7432, which provides that the 20% senior citizen discount may be claimed as a tax deduction from gross income, gross sales, or gross receipts. Petitioners challenge its constitutionality and pray that the tax credit treatment of the 20% discount be reinstated. They posit that the resolution of this case lies in the determination of whether the legally mandated 20% senior discount is an exercise of police power or eminent domain. If it is police power, no just compensation is warranted, But if it is eminent domain, the tax deduction scheme is unconstitutional because it is not a peso for peso reimbursement of the 20% discount n to senior citizens. Thus, it constitutes taking of private property without payment of just compensation. Is the tax deduction scheme an exercise of police power or the power of eminent domain? POLICE POWER. ‘The 20% discount given to senior cltizens is a valid exereise of police power, Thus, even ifthe current law, through its tax deduction scheme (which abandoned the tax credit scheme under the previous law), does not provide for a peso for peso reimbursement of the 20% discount given by private establishments, no constitutional infirmity obtains because, being a valid exercise of police power, payment of just compensation Is, not warranted, ‘The 20% discount is intended to improve the welfare of senior citizens who, at their age, are less likely to be gainfully employed, more prone to illnesses and other disabilities, and thus, in need of subsidy in purchasing basic commodities, The discount serves to honor senior citizens who presumably spent the productive years of their lives on contributing to the development and progress of the nation. This distinct cultural Filipino practice of honoring the elderly Is an integral part of this law. As to its nature and effects, the 20% discount is a regulation affecting the ability of private establishments to price thelr products and services relative to a special class of individuals, senior citizens, for which the Constitution affords preferential concern. (Manila Memorial Park v. DSWD, GR. No. 175356 03 Dec. 2013) C, SCOPE AND LIMITATIONS OF TAXATION 1. INHERENT AND CONSTITUTIONAL LIMITATIONS OF ‘TAXATION Q: What are the inherent limitations on taxation? A: The following are the inherent limitations on taxation: (@4t+4) 1. Bublic Purpose; 2. Inherently Legislative; Lerritorial; 4, International Comity; and 5. Exemption of government entities, agencies and instrumentalities. 4 Sn A What are the constitutional limitations on taxation? Provisions directly affecting taxation Prohibition against imprisonment for non Payment of poll tax (Sec. 20, Art Ill, 1987 Constitution) Uniformity and equality of taxation (Sec. 28(1), Art. VI, 1987 Constitution) Grant by Congress of authority to the President to impose tariff rates (Sec. 28(2), Art. VI, 1987 Constitution) Prohibition against taxation of religious, charitable entities, and educational entities (Sec 28(3), Art. VI, 1987 Constitution) Prohibition against taxation of non-stock, non. profit educational institutions (Sec. 4(3), Art. XIV, 1987 Constitution) Majority vote of Congress for grant of tax exemption (Sec. 28(4), Art. VI, 1987 Constitution) Prohibition on use of tax levied for special purpose (See, 29(3), Art. VI 1987 Constitution) President's veto power on appropriation, revenue, tariff bills (Sec. 27 (2), Art Vi 1987 Constitution) Non-impairment of jurisdiction of the Supreme Court (See. 30, Art. VI 1987 Constitution) Grant of power to the LGUs to create its own sources of revenue (Sec, 5, Ar, X 1987 Constitution) Origin of Revenue and Tariff Bills (Sec. 24, Art. VI 1987 Constitution) No appropriation or use of public money for religious purposes (Sec: 29(2), Art VI, 1987 Constitution) 2, Provisions indirectly affecting taxation b Due process (Sec. 1, Art. Il, 1987 Constitution) Equal protection (Sec 1, Art Hl, 1987 Constitution) Religious freedom (Sec. 5, Art Ill, 1987 Constitution) gy University oF Santo Tomas 8 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 d._Non-impairment of obligations of contracts (Sec 10, Art Ill, 1987 Constitution) ©. Freedom of the press (Sec. 4 Art Ill, 1987 Constitutton) —— Q: What are the principles relative to public purpose? ‘no constitutional limitation because the legislature is free to select the subjects of taxation. NOTE: The legislature is not required to adopt a policy of “all or none” for the Congress has the power to select the object of taxation, (Lutz v, Araneta, GR. No. L-7859, 22 Dec. 1955) ‘As the State has the power to determine the subjects of taxation, it is also free to select those who will be exempt from taxation. (Gomez ¥. Palomar, GR. No, -23645, 29 Oct. 1968) 3. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an ‘organized society, established and safeguarded by the devotion of taxes to public purposes. (Gomez Palomar, GR. No, -23645, 29 Oct, 1968) Public purpose may legally exist even if the motive which impelled the legislature to impose the tax. was to favor one industry over another. (Tio ¥. Videogram Regulatory Board GR. No. 75697, 19 June 1987) Public purpose is continually expanding. Areas formerly left to private initiative now lose thelr boundaries and may be undertaken by the government if it is to mect the increasing social challenges of the times, 5. The public purpose of the tax law must exist at the time of its enactment. (Pascual v. Secretary of Public Works, GR. No, 1-10405, 29 Dec. 1960} INHERENTLY LEGISLATIVE Q: What are the non-delegable legislative powers? 1. Selection of subject to be taxed 2. Determination of purposes for which taxes shall be levied 3. Fixing of the rate/amount of taxation 4. Situsof tax 5. Kind of tax Q: The Court promulgated a decision declaring the phrase “internal revenue” appearing in Sec. 284 of RA. 7160 (Local Government Code) unconstitutional and deleted the same, The Office of the Solicitor-General (0SG), however, contends that the provisions of the LGC. are not contrary to Sec. 6, Art. X of the Constitution. Is the 0SG's contention correct? ‘A: NO. Sec. 6 Art X of the 1987 Constitution textually ‘commands the allocation to the LGUs of their just share in the national taxes. Sec. 6 embodies three mandates: (1) the LGUs shall have a just share in the national taxes; (2) the just share shall be determined by law;and (3) the just share shall be automatically released to the LGUs. Congress has exceeded its constitutional boundary by limiting to the National Internal Revenue Taxes the base from which to compute the just share ofthe LGUs. Although the power of Congress to make laws is plenary in nature, ‘congressional lawmaking remains subject to the limitations stated in the 1987 Constitution, Thus, the phrase “national internal revenue taxes” engrafted in Sec. 284 is undoubtedly more restrictive than the term national taxes written in See. 6. (Congressman Mandanas v. Executive Secretary Ochoa, jr, GR. No. 199802/208488, 10 Apr. 2019) ‘TERRITORIAL GR: The taxing power ofa country is limited to persons and property within and subject to its jurisdiction, XPNs: 1, Where tax laws operate outside territorial jurisdiction, (eg, taxation of resident citizens on their incomes derived abroad) 2. Where tax laws do not operate within the territorial jurisdiction of the State a. When exempted by treaty obligations; or b. When exempted by international comity. Q What are the principles relative to territorial jurisdiction? 1. As the State can exercise its power to tax within its territorial jurisdiction, it can tax sales within foreign military zones as these military zones are not considered foreign territory. (Reagan ¥. CIR, GR. No. L- 26379, 27 Dec. 1969) 2. The State can tax a transaction if the substantial elements of the contract are situated in the Philippines. (Manila Electric Company v. Yatco, GR. No. 45697, 01 Nov. 1939) 3. Turnkey contracts relating to the installation ofa wharf complex and an ammonia storage complex were actually divisible contracts which each had different stages, with each stage having different tax implication. (CIR v. Marubeni, GR. No. 137377, 18 Dec. 2001) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAWPOLITICAL LAW INTERNATIONAL COMITY Q: What Is the Doctrine of International Comity? A. Itrefers to the respect accorded by nations to each other because they are sovereign equals. Thus, the property or income of a foreign state may not be the subject of taxation by another State. Under international comity, a state must recognize the generally-accepted tenets of international law, among which are the principles of sovereign equality among states, and of their freedom from suit without their consent, that mits that authority of a government to effectively Impose taxes in a sovereign state and its instrumentalities, as well as in its property held and activities undertaken in that capacity. (2009 BAR) NOTE: Tax treaties are entered into to minimize the harshness of international double taxation, (Ingles, 2021) Q:ABCD Corporation (ABCD) is a domestic corporation with individual and corporate shareholders who are residents of the United States. For the 2nd quarter of 1983, these US.-based individual and corporate stockholders received cash dividends from the corporation, The corresponding withholding tax on dividend income - 30% for individual and 35% for corporate non-resident stockholders ~ was deducted at source and remitted to the BIR. ner of On May 15, 1984, ABCD filed with the Commi Internal Revenue a formal claim for refund, alleging that under the RP-US Tax Treaty, the deduction withheld at source as tax on dividendsearned was fixed at 25% of said income. Thus, ABCD asserted that it overpaid the withholding tax due on the cash dividends given to its non-resident stockholders in the US. The Commissioner denied the claim, 0.17 Jan, 1985, ABCD filed a petition with the Court of Tax Appeals (CTA) reiterating its demand for refund, Is the contention of ABCD Corporation correct? Why or why not? (2009 BAR) ‘A: YES. The provision ofa treaty must take precedence over and above the provisions of the local taxing statute consonant with the principle of international comity. Tax treaties are accepted limitations to the power of taxation, Thus, the CTA should apply the treaty provision so that the claim for refund representing the difference between the amount actually withheld and paid to the BIR and the amount due and payable under the treaty should be granted, Hawatlan-Philippine Company v. CIR, CTA Case No. 3887, 31 May 1988) EXEMPTION FROM TAXATION OF GOVERNMENT ENTITIES @ PAGCOR is a duly created government sstrumentality by virtue of PD No. 1869. Under its Charter, no form oftax or charge shall attach in any way to the earnings of PAGCOR, except a Franchise Tax of 5% of the gross revenue or earnings derived from its operation under this Franchise. Further, such tax shall be in liew of all kinds of taxes, levies, fees, or assessments of any kind. The CIR Issued an assessment against PAGCOR for deficiency income tax, among others, on the ground that PAGCOR is no longer exempt from the payment of income taxes because its income tax exemption has been effectively withdrawn by the amendments to the 1997 NIRC introduced by RA No. 9337. Is the contention of CIR correct? ‘A: NO. PAGCOR's income from gaming operations is subject only to 5% franchise tax under PD No. 1869, as amended, while its income from other related services Is subject to corporate income tax pursuant to PD No, 1869, as amended, in relation to RA No, 9337. In PAGCOR v. BIR, the Court En ane clarified that RA No, 9337 did not repeal the tax privilege granted to PAGCOR under PD No. 1869, with respect to its Income from gaming operations, What RA No. 9337 withdrew was PAGCOR's exemption from corporate Income tax on its Income derived from other related services, previously granted under Sec. 27(C) of RA No. 8424. (PAGCOR v. CIR, GR No. 210689-90, 210704 & 210725 22 Nov. 2017, J. Caguioa) COONS PROVISIONS DIRECTLY AFFECTING TAXATION PROHIBITION AGAINST IMPRISONMENT FOR NO! PAYMENT OF POLL TAX Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit, cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (Sec. 28(3}, Art. VI, 1987 Constitution) Q: What is the coverage of the tax exemption? ‘A: The exemption only applies to real property tax, (Lladoc ¥ CIR, GR. No. L-19201, 16 June 1965) Accordingly, a conveyance of such exempt property can he subject to transfer taxes. Q: What properties are exempt under the Constitution from the payment of property taxes? 1. Charitable institutions; 2. Churches and parsonages or convents gy University oF Santo Tomas 10 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 appurtenant thereto; 3. Mosques; 4. Non-profit cemeteries; and 5. All lands, buildings, and improvements actually, directly and exclusively used for religious, charitable or educational purposes shall be exempt from taxation, (Sec. 283), Art Vl 1987 Constitution) Q: What is the meaning of “Charitable” as used in the Constitution? I |s not restricted to relief of the poor or sick. The test whether an enterprise is charitable or not is whether it exists to carry out a purpose recognized in aw as charitable ‘or whether it is maintained for gain, profit, or private advantage. (Lung Genter ofthe Pailipinesv. Quezon City, GR. No, 144104, 29 june 2004) Q: What is the meaning of “Actual, Direct and Exclusive use of the property” as used in the Constitution? Az It is the direct, immediate, and actual application of the property itself to the purposes for which the charitable institution is organized. NOTE: It is the actual use of the property and not the use ‘of the income from the real property that is determinative of whether the property is used for tax-exempt purposes. LINE-ITEM VETO ‘The President shall have the power to veto any particular item or items in an appropriation, revenue or tariff bill but the veto shall not affect the item or items which he does not object. (See: 27(2), Art. VI, 1987 Constitution) NOTE: The veto power on particular items only applies to appropriation, revenue and tariff bills. Bills other than appropriation, revenue and tariff bills can only be vetoed by the President as a whole. GRANT OF POWER TO THE LGUS TO CREATI SOURCES OF REVENUE Each LGU shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such ‘guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shalll accrue exclusively to the local governments. (Sec, 5, Art. X, 1987 Constitution) ORIGIN OF REVENUE AND TARIFF BILLS All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and. private bills shall originate exelusively in the House of Representatives, but the Senate may propose or concur with amendments. (Sec. 24, Art VI, 1987 Constitution) What is required to originate in the House of Representatives is not the law but the revenue bill which ‘must “originate exclusively” in the lower house, The bill ‘may undergo such extensive changes that the result may be ‘a rewriting of the whole. The Senate may not only concur ‘with amendments but also propose amendments. To deny the Senate's power not only to “concur with amendments” but also to “propose amendments” would be to violate the cooquality of legislative power of the two houses of Congress and in fact make the House superior to the Senate, (Tolentino v. Secretary of Finance, GR. No. 119873, 25 Aug 1994) PROVISIONS INDIRECTLY AFFECTING TAXATION RELIGIOUS FREEDOM No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed, No religious test shall be required for the exercise of civil or political rights. (Sec. 5, Art. Il, 1987, Constitution) Q: Is. municipal license tax on the sale of bibles and religious articles by a non-stock, non-profit missionary ‘organization at minimal profits valid? A: NO. Such imposition of license tax constitutes curtailment of religious freedom and worship which is ‘guaranteed by the Constitution, NOTE: The constitutional guarantee of the free exercise and enjoyment of religious profession and worship carries with It the right to disseminate religious information. ‘Any restraints of such right can only be justified like other restraints of freedom of expression on the grounds that there is clear and present danger of any substantive evil which the State has the right to prevent. (American Bible Socieyy v. Gity of Mania, GR. No. 1-9637, 30 Apr. 1957) NON-IMPAIRMENT CLAUSE No law impairing the obligation of contracts shall be passed. (Sec. 10, Art I, 1987 Constitution) Q: What are contractual tax exemptions? Contractual tax exemptions are: 1, Those entered into by the taxing authority; Those lawfully entered under enabling laws; and 3. Wherein the government acts in its private capacity and sheds its cloak of authority and immunity. (Manila Flectric Co. v. Province of Laguna, GR. No, 131359, 05 1999) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAWPOLITICAL LAW Q: What are the rules regarding Non-Impairment of Obligation and Contract with respect to the grant of tax exemptions? Unilaterally granted by law If the grant of the exemption is merely a spontaneous concession by the legislature, such exemption may be revoked, NOTE: A license conferring a tax exemption can be revoked at any time since it does not confer an absolute right, even if these were granted as inducement to invest in the country. (Republic v. Caguioa, GR. No, 168584, 15 Oct, 2007) 2. Franchise If it is without payment of any consideration or the assumption of any new burden by the grantee, It is a ‘mere gratuity and exemption may be revoked. NOTE: A franchise Is likewise subject to amendment, alteration, or repeal by Congress when the public Interest so requires. (Cagayan Flectric Power and Light Go, Ine. ¥. CIR, G.R. No, L-60126, 25 Sept. 1985) 3. Bilaterally agreed upon However, if the tax exemption constitutes a binding contract and for valuable consideration, the government cannot unilaterally revoke the tax ‘exemption, Q: Congress enacted R.A. No. 7716, or otherwise known as the Expanded Value-Added Tax Law, which seeks to widen the tax base of the existing VAT system and enhance its administration, Thereafter, petitions for the declaration of unconstitutionality were filed before the Supreme Court, One of the contentions of the petitioners is that the application of such law to existing contracts of sale of real properties by installment or on deferred payment basis would result in substantial increases i the monthly amortizations to be paid due to the 10% VAT, Hence, R.A. 7716 violates the non-impairment clause of contracts, Is the contention tenable? A:NO. RA. No, 7716 does not violate the non-impairment clause, The contention that the imposition of the VAT on the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law would violate the constitutional provision that “No law impairing the obligation of contracts shall be passed’ Is without legal basis. ‘The parties to a contract cannot fetter the exercise of the taxing power of the State, For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes. of sovereign power is also read into contracts as a basic postulate of the legal order. ‘The Contract Clause has never been thought as a limitation on the exercise of the State's power of taxation save only where a tax exemption has been granted for a valid consideration. (Tolentino v. Secretary of Finance, GR. No, 115455, 25 Aug. 1994) FREEDOM OF THE PRESS Q:Is RA. No. 7716 unconstitutional for it violates the freedom of the press under Art, Ill, Sec. 4 of the Constitution by imposing VAT on the gross receipts of newspapers from advertisements and on their acquisition of paper, ink and services for publication? ‘A: NO. Even with due recognition of its high estate and its importance in a democratic society, however, the press is, not immune from general regulation by the State. It has been hheld that the publisher of a newspaper has no Immunity from the application of general laws, He has no special privilege to invade the rights and liberty of others. He must answer for libel. He may be punished for contempt of court. Like others, he must pay equitable and nondiscriminatary taxes on his business. (Tolentino . Secretary of Finance, G.R No. 115873, 25 Aug. 1994) ‘2, TERRITORIALITY PRINCIPLE AND SITUS OF TAXATION Teen ene Q: What is the situs of taxation? [Az It is the place or authority that has the right to Impose ‘and collect taxes, (Commissioner of Internal Revenue ¥, Marubeni Corporation, GR. No, 137377, 18 Dec. 2001) Q What are the factors to determine the si taxation: (Re-Ci-N-S2) Residence of the taxpayer, Citizenship of the taxpayer, Nature of the tax, ‘Subject matter of the tax, and ‘Source of income. gy University oF Santo Tomas 2 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 D. REQUISITES OF A VALID TAX Q: Enumerate the requisites of a valid tax. ‘As The requisites of a valid tax are: (Uni-JIP) 1. It should be fora Public purpose; 2. Itshould be Uniform; 3. ‘The person or property being taxed should be within the Jurisdiction ofthe taxing authority; and 4, ‘The tax must not impinge on the Inherent and constitutional limitations on the power of taxation. E, TAX AS DISTINGUISHED FROM OTHER FORMS OF EXACTIONS F, KINDS OF TAXES AS TO OBJECT 1. Personal / poll or capitation tax - a fixed amount imposed upon all persons, or upon all persons of a certain class or residents within a specified territory, ‘without regard to their property or occupation. (eg., ‘community tax) 2. Property tax ~ tax imposed on property, whether real or personal, in proportion either to its value, or in accordance with some other reasonable method of apportionment. (eg, real property ti50) 3. Privilege / excise tax ~acharge upon the performance of an act, the enjoyment of a privilege, or the engaging inan occupation. An excise tax isa tax that does not fall as property tax, (2g, income tax, estate tax, donor’s tax, vat) NOTE: This is different from the excise tax under the NIRC which is a business tax imposed on items such as cigars, cigarettes, wines, liquors, frameworks, mineral products, among others. Based on the possibility of shifting the incidence of taxation, taxes may be classified into: 1. Direct taxes, and 2. Indirect taxes. (CIR v, PLDT, GR. No, 140230, 15 Dec. 2005) Q: Distinguish a direct from an indirect tax. ‘examples. (1994, 2000, 2001, 2006 BAR) ‘Az Direct taxes are demanded from the very person who, as Intended, should pay the tax which he cannot shift to another; while Indirect taxes are demanded in the first instance from one person with the expectation that he can shift the burden to someone else, not as a tax but as a part of the purchase price. (Maceda v. Macaralg, Jr, GR. NO. 88291, 08 June 1993) Direct taxes are taxes wherein either the incidence (or liability for the payment ofthe tax) as well as the impact or burden of the tax falls on the same person. Indirect taxes, ontheother hand, are taxes wherein the incidence ofor the liability of payment of the tax falls on one person but the burden thereof can be shifted or passed on to another person. Income tax, estate tax, and donor's tax are considered as direct taxes: On the other hand, value-added tax, excise tax, other percentage taxes, and documentary stamp tax are indirect taxes. NOTE: The liability for payment of the indirect taxes lies only with the seller of the goods or services, notin the buyer thereof. Thus, one cannot Invoke one’s exemption privilege to avoid the passing on or the shifting of the VAT to hima by the manufacturers or suppliers of the goods, Hence, itis important to determine if the tax exemption granted specifically includes the indirect tax; otherwise, it is presumed that the tax exemption embraces only those taxes for which the buyer is directly liable. (CIR v. PLDT, GR. No. 140230, 15 Dec. 2005) In case of withholding taxes, the incidence and burden of taxation fallon the same entity, the statutory taxpayer. The burden of taxation is not shifted to the withholding agent ‘who merely collects, by withholding, the tax due from income payments to entities arising from certain transactions and remits the same to the government. Due to this difference, the deficiency VAT and exeise tax cannot be “deemed” as withholding taxes merely because they constitute indirect taxes. (Asia International Auctioneers, Ine, v, CIR, GR, No, 179115, 26 Sept. 2012) In indirect taxation, a distinction is made between the liability for the tax and burden of the tax. For instance, the seller who Is liable for the VAT (le, las the incidence of taxation) may shift or pass on the amount of VAT it paid on ‘goods, properties, or services to the buyer, who has the burden of taxation. In such acase, what is transferred is not the seller's liability but merely the burden ofthe VAT. (Diaz v. The Secretary of Finance, GR. No, 193007, 19 July 2011) ay Ts 1. Specific - tax ofa fixed amount imposed by the head or number, or by some standard of weight or measurement. (eg, excise tax on cigar, cigarettes and liquors) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAWPOLITICAL LAW 2. Ad valorem - tax based on the value of the property with respect to which the tax isassessed. It requires the intervention of assessors or appraisers to estimate the value of such property before the amount due can be determined. (eg, real estate tax, income tax, donor's tax and estate tax) Mixed ~ a choice between ad valorem and/or specific depending on the condition attached. aa 1. General/fiscal or revenue - taximposed solely for the general purpose of the government. (eg. Income tax and donor's tax) 2. Special/regulatory or sumptuary ~ tax levied for specific purpose, Le, to achieve some social or economic ends. (eg, tariff and certain duties on Imports) En RITYT Do National tax - tax levied by the National Government. (eg, income tax, estate tax, donor's tax, VAT, other percentage taxes and documentary stamp taxes) 2. Local or municipal - tax levied by a local government, (eg, real estate tax and community tax) Progressive - ataxrate which increases as the tax base or bracket increases. (eg, income tax, estate tax and donor's tax) Regressive - the tax rate decreases as the tax base or bracket increases. Proportionate - a tax ofa fixed percentage of amounts of the base, which can be the value of the property, or amount of gross recelpts, among others. (eg.. VAT and ‘other percentage taxes) G, DOCTRINES IN TAXATION Pee Q: What are the manifestations of lifeblood theory (CARD) 1. Taxes could not be the subject of Compensation and set-off, subject to certain exceptions Imposition even in the Absence of constitutional grant State's Right to select objects and subjects of tation 4. Avalid tax may result in Destruction of property No Injunction to enjoin collection of taxes except for a period of 60 days upon application to the CTA as an incident of its appellate jurisdiction @ Discuss the meaning and the implications of the statement: “Taxes are the lifeblood of the government and their prompt and certain availability is an imperious need”, (1991 BAR) A: It expresses the underlying basis of taxation which is governmental necessity. For indeed, without taxation, a government can neither exist nor endure. Considering that taxes are the lifeblood of the government, ‘and in Holmes’ memorable metaphor, the price we pay for civilization, tax laws must be faithfully and strictly implemented. (CIR v. Acosta, GR No. 154068, 3 Aug. 2007) ‘Taxes should be collected promptly. No court shall have the authority to grant an injunction to restrain the collection of any internal revenue tax, fee or charge imposed by the NIRC. (Angeles City v. Angeles Electric Cooperation, GR. No. 166134, 29 June 2010) ee Org ‘TAXLAWS. must be construed strictly against the government and liberally in favor of the taxpayer. (MCIAA ¥. Marcos, G.R. No, 120082, 11 Sept. 1996) ‘The imposition of altax cannot be presumed. Rationale: Taxes are burdens on the taxpayer and should not be unduly imposed or presumed beyond what the statutes expressly and clearly import. (CIR v. The Philippine American Accident Insurance, Inc. GR. No, 141658, 18 Mar. 2005) XPN: ‘The statute imposes a tax clearly, expressly, and unambiguously. XPN to XPN: The rule that, in case of doubt of legislative Intent, the doubt must be liberally construed in favor of taxpayer does not extend to cases involving the issue of the validity of the tax law itself which, In every case, Is presumed valid ‘TAX EXEMPTIONS AND EXCLUSIONS GR: Statutes granting tax exemptions are construed in strietissim! juris against the taxpayers and liberally in favor of the taxing authority. (MCIAA v. Marcos, GR, No, 120082, I1 Sept. 1996) ‘Tax exclusions (removal of otherwise taxable items from gy University oF Santo Tomas 4 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 the reach of taxation) are likewise strictly construed against the taxpayer. (Smart Communications, Inc. v. City of Davao, GR. No, 155491, 16 Sept. 2008) NOTE: Tax refunds are in the nature of tax exemptions which are construed in strictissim! juris against the taxpayer and liberally in favor of the government. (Kepco Philippines Corporation v. CIR, GR.No. 179961, 31 Jan.2011) XPNs: (P-E-A) 1. Ifthe grantee of the exemption is a Political subdivision or instrumentality, the rigid rule of construction does not apply because the practical effect of the exemption Is merely to reduce the amount of money that has to be handled by the government in the course of its operations. (MCIAA v. Marcos GR. No, 120082, 11 Sept. 1996) NOTE: It isa recognized principle that the rule on strict interpretation does not apply in the case of exemptions im favor of a government political subdivision or instrumentality. In the case of property owned by the state oracity or other public corporations, the express exemption should not be construed with the same degree of strictness that applies toexemptions contrary to the policy of the state, since as to such property “exemption is the rule and taxation the exception”. (Maceda v. Macaraig, G.R. No, 88291, 31 May 1991) 2. Erroneous payment of the tax, or 3. Absence of law for the government’s exaction. (CIR Fortune Tobacco Corporation, GR. Nos. 167274-75, 21 July 2008) 3. PROSPECTIVITY OF TAX LAWS Pee 5 TEST Q: What are the kinds of double taxation? A: There are two kinds of double taxation: 1. Direct double taxation, and 2. Indirect double taxation, DIRECT (STRICT SENSE) Q: What are the elements of direct double taxatio: A 1. The same property is taxed Twice when it should be taxed only once; and 2. Both taxes are Imposed: (Ju-P2-A-C-S) a. within the same Jurisdiction; b. forthe same Purpose; ¢. during the same taxing Period; ._ by the same taxing Authority; ©. the taxes must be of the same kind or Character; and £ on the same Subject matter. (City of Mantia v. Coca Cola Bottlers Phillppines, G.R. No. 181845, 04 Aug. 2009) NOTE: All the elements must be present in order to apply double taxation ints strict sense. Rationale: It constitutes double taxation in the objectionable or prohibited sense since it violates the equal protection clause of the Constitution, NOTE: Imposition of a penalty and a tax on one taxpayer does not amount to double taxation. (Republic Bank v. CTA, GR. No, 62554, 02 Sept 1992) INDIRECT (BROAD SENSE) It isa permissible double taxation wherein some elements of direct double taxation are absent. Q: Differentiate between double taxation in the strict ‘sense and in a broad sense and give an example of each. (2015 BAR) ‘A: Double taxation in the strict sense pertains to the direct double taxation. This means that the taxpayeris taxed twice by the same taxing authority, within the same taxing jurisdiction, for the same property and same purpose. An ‘example is the imposition of final withholding tax on cash dividend and requiring the taxpayer to declare this tax-patd ‘income in his tax returns, (On the other hand, double taxation in the broad sense pertains to indirect double taxation. This extends to all ‘cases inwhich there isaburdenoftwo or more impositions. Itis the double taxation other than those covered by direct double taxation. (CIR v, Solidbank Corp,, GR. No, 148191, 25, ‘Nov: 2003) An example is subjecting the interest income of banks on their deposits with other banks t0 the 5% Gross Receipts Tax (GRT) despite of the same income having been subjected to 20% Final Withholding Tax (FWT). The GRT is, taxon the privilege ofengaging in business, while the FWT is a tax on the privilege of earning income, (CIR v: Bank of Commerce, GR.No. 149636, 08 June 2005) Q: In 2018, City X amended its Revenue Code to include a new provision imposing a tax on every sale of merchandise by a wholesaler based on the total selling, price of the goods, inclusive of value-added taxes (VAT). ABC Corp, a wholesaler operating within the city, challenged the new provision based on the following contentions: (1) The new provision is a form of prohibited double taxation because it essentially amounts to City X imposing VAT which was already being levied by the national government; and (2) Since the tax being Imposed is akin to VAT, it is beyond the power of City X to levy the same. 15 UNIVERSITY OF SANTO TOMAS (24 FACULTY OF CIVIL LAWPOLITICAL LAW Rule on ABC Corp.'s first contention. (2019 BAR) ‘A: ABC CORP. IS INCORRECT. Under the NIRC, direct double taxation exists only when two taxes are Imposed on the same: (1) subject matter, (2) purpose, (3) by the same taxing authority, (4) within the same jurisdiction, (5) during the same taxing period, and (6) the taxes of the same kind of nature, In this case, the taxing authorities are different. Hence, the tax imposed by the LGU is not a form of direct double taxation, Q KM Corporation, doing business in the City of Kalookan, has been a distributor and retailer of ig and household materials. It has been paying of Kalookan local taxes based on Secs. 15 (Tax on Wholesalers, Distributors or Dealers) and 17 (Tax on Retailers) of the Revenue Code of Kalookan City (Code). Subsequently, the Sangguniang Panglungsod enacted an ordinance amending the Code by inserting Sec. 21 which imposes a tax on “Businesses Subject to Excise, Value-Added and Percentage Taxes under the NIRG," at the rate of 50% of 1% per annum on the gross sales and receipts on persons “who sell goods and services In the course of trade or business.’ KM Corporation paid the taxes due under Sec. 21 under protest, claiming that (a) local government units could not impose a tax on businesses already taxed under the NIRC and (b) this would amount to double taxation, since its business was already taxed under Secs. 15 and 17 of the Code. Does this amount to double taxation? (2018 BAR) ‘A: YES, The three taxes are all in the nature of local business taxes on wholesalers, retailers and service providers which are imposed by the same taxing authority on the same subject matter for the same tax period; hence, the elements, of double taxation are present. (Nursery Care Corp. v. Acehedo, G.R. No. 180651, 30 july 2014) Orcs Q: What are the principles governing tax exemptions? 1. Tax exemptions are highly disfavored in law. ‘Tax exemptions are personal and non-transferable. 3. He who claims an exemption must Justify that the legislature intended to exempt him by words too plain to be mistaken, He must convincingly prove that he is ‘exempted. 4, Itmust be strictly construed against the taxpayer. NOTE: Deductions for income tax purposes partake of the nature of tax exemptions, hence, they are also strictly construed against the taxpayer. Constitutional grants of tax exemptions are self: executing. 6. Tax exemption is generally revocable, unless founded fon contracts which are protected by the non impairment clause, 7. Inorder to be irrevocable, the tax exemption must be founded on a contract or granted by the Constitution, 8, The congressional power to grant an exemption necessarily carries with it the consequent pawer to revoke the same, 9, Personal in nature and covers only taxes for which the grantee Is directly Hable. It cannot be transferred or assigned by the person to whom itis given without the consent of the State, 10 Strictly construed against the taxpayer. 11, Implies a waiver on the part of the government of its right to collect what otherwise would be due. 12, Exemptions are not presumed. The burden is upon the claimant to establish right to exemption beyond casonable doubt, However, the strict interpretation does not apply in the case of exemptions running to the benefit of the government itself or its agencies. Q Pursuant to Sec. 11 of the "Host Agreement” between the United Nations and the Philippine government, it was provided that the World Health Organization (WHO), ‘its assets, income and other properties shall be: (a) exempt from all direct and direct taxes.” Precision Construction Corporation (PCC) was hired to construct the WHO Medical Center in Manila. Upon completion of the building, the BIR assessed a 12% VAT on the gross receipts of PCC derived from the construction of the WHO building. The BIR contends that the 12% VAT isnot a direct nor an indirect tax on the WHO but a tax that is primarily due from the contractor and is therefore not covered by the Host Agreement. The WHO argues that the VAT. is deemed an indirect tax as PCC can shift the tax burden to it. Is the BIR correct? Explain. (2016 BAR) ‘A: NO. Since the WHO, the contractee, is exempt from direct and indirect taxes pursuant to an international agreement where the Philippines is a signatory, the exemption from direct taxes should mean that the entity or person exempt is the contractor itself because the manifest Intention of the government is to exempt the contractor so that no tax may be shifted to the contractee. (CIR v. John Gotamco & Sons, Inc, GR. No. L-31092, 27 Feb, 1987) The immunity of WHO from indirect taxes extends to the contractor by treating the sale of service as effectively zero-rated when the law provided that - “services rendered to persons or entities whose exemption under special laws or international agreements to which the Philippines isa signatory effectively subjects the supply to gy University oF Santo Tomas 16 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 such service to zero percent rate” (Sec. 108(B)(2), NIRC) Accordingly, the BIR is wrong in assessing the 12% VAT from the contractor PCC. NOTE: For indirect taxes, the tax exemption of the buyer (or whoever the burden of tax falls to) does not exempt him from the payment of indirect taxes because such person is not the one statutorily liable for the payment of the tax in the first place. (Philippine Acetylene Co,, Inc. ¥ CIR, GR. No. 1-19707, 17 Aug. 1967) ‘The exception is when the buyer (or whoever the burden, of tax falls to) Is specifically exempted from payment of Indirect taxes. (CIR v. John Gotamco & Sons, Inc, G.R. No. L~ 31092, 27 Feb, 1987) Q:SMC, a coal mining operator, has been selling coal to NPC for years without paying VAT pursuant to the ‘exemption granted under Sec. 16 of PD No. 972 or the “Coal Development Act of 1976”, However, after RA No. 9337 took effect, NPC started to withhold a tax of 5% representing the final withholding VAT on SMC’s coal billings on the belief hat the sale of coal by SMC was no longer exempt from VAT. It was argued that the provision which grants tax exemption to SMC under Section 109 (e) of the NIRC of 1997 was withdrawn by the legislature when RA No. 9337 was passed deleting. the “sale or importation of coal and natural gas, in whatever form or state” from the list of transactions ‘exempt from VAT. Does SMCs sale of coal remain ‘exempt from VAT notwithstanding R.A. 9337? ‘A: YES. SMC is exempt from the payment of VAT on the sale of coal produced under its COC, because Section 16 (a) of PD No. 972, a special law, grants SMC exemption from all national taxes except income tax, SMC's claim for VAT exemption is anchored not on the paragraph deleted by RA No, 9337 from the list of VAT ‘exempt transactions under Section 109 of the NIRCof 1997, as amended, but on the tax incentives granted to operators ‘of COCs executed pursuant to PD No. 972, The Court agrees ‘with the CTA that the tax exemption provided under Section 16 of PD No. 972 was not revoked, withdrawn or repealed — expressly or impliedly — by Congress with the enactment of RA No. 9337. (CIR v. Semirara Mining Corporation, GR. No. 202922, 19 jun. 2017, J. Caguioa) & What are the restrictions on revocation of tax ‘exemptions? 1. Non-impairment clause 2. A municipal franchise once granted as a contract cannot be altered or amended except by actual consent of the parties concerned. 3. Adherence to form (eg, if the exemption Is granted by the Constitution, its revocation may be affected through constitutional amendment only) 4. Where the tax exemption grant is in the form of a special law and not by a general law, even if the terms of the general act are broad enough to include the codes in the general law, unless there is manifest intent to repeal or alter the special law. (CIR v. CA, GR No, 95022, 23 Mar. 1992) Q: BCDA was the owner of four (4) real properties in BGC collectively referred to as the “Expanded Big Delta Lots’, It entered into a contract to sell with the NET GROUP. The total purchase price was P2,032,749,327.96, NET GROUP deducted the amount ‘of Php101,637,466.40 as CWT and issued to BCDA the corresponding certificates of creditable tax withheld at source. BCDA then wrote the BIR for refund of the amount but to no avail. BCDA claimed that it was ‘exempt from all taxes and fees arising from or in relation to the sale, as provided under its charter, RA No. 7227, asamended by RA 7917. Is BCDA exempt from Creditable Withholding Tax (CWT) on thesale of its BGC properties? YES. Insofar as the sale of the "Expanded Big Delta Lots” is concerned, RA. No. 7227 as amended by RA. No. 7917 specifically exempts BCDA from taxes. R.A. No. 7222, as amended is a special law. The NIRC, being a general law, is not deemed to have amended or superseded the special law in the absence ofan express repeal thereof in the NIRCitself. Sec. 8 of RA. No. 7227, as amended by RA. No. 7917, specifically governs BCDA's disposition of the properties ‘enumerated therein and their sale proceeds, The law ‘exerupls these sale proceeds fromall kinds of fees and taxes as the same law has already appropriated them for specific purposes and for designated beneficiaries, Itis settled that between a general law and a special law, the latter prevails. For a special law reveals the legislative intent more clearly than a general law does. Verily, the special law should be deemed an exception to the general law, (CIR ¥. BCDA, GR. No, 217898, 15 Jan, 2020) a PEFI MT, TION ‘TAX AVOIDANCE Q: Mr. Pascual’s income from leasing his property reaches the maximum rate of tax under the law. He donated % of his said property to a non-stock, non- profit educational institution whose income and assets are actually, directly, and exclusively used for ‘educational purposes, and therefore qualified for tax ‘exemption under Sec. 4(3), Art. XIV of the Constitution and Sec. 3(h) of the NIRC. Having thus transferred a portion of his said asset, Mr. Pascual succeeded in paying a lesser tax on the rental income derived from his property. Is there tax avoidance or tax evasion? Explain, (2000 BAR) ‘A: THERE IS TAX AVOIDANCE. Mr. Pascual has exploited a legally permissive alternative method to reduce his income by transferring part of his rental income to a tax-exempt 7 UNIVERSITY OF SANTO TOMAS (24 FACULTY OF CIVIL LAWPOLITICAL LAW entity through a donation of % of the income producing property, The donation is likewise exempt from donor's tax. The donation is the legal means employed to transfer the incidence of income tax on the rental income. ‘TAX EVASION OR TAX DODGING Q: What are the elements in determ (USE) ing tax evasion: 1. Course of action or failure of action is Unlawful; 2. Accompanying State of mind, which is “evil’, in “bad faith’, “willful” or “deliberate and not accidental’; and 3. End to be achieved, ie, payment of less than that xnown by the taxpayer to be legally due, or non- payment of tax when itis shown that the tax is due. (CIR v, Estate of Benigno Toda, GR. No. 147188, 14 Sept. 2004) ifferentiate tax avoidance from tax evasion perverted Validity Legal and not subject to | legal and subject to. criminal penalty criminal penalty Effect Almost always results in Minimization of taxes absence of tax payment Q: What are the pieces of e prove tax evasion? jence that may be used to 1, Fallure of taxpayer to declare for taxation purposes his true and actual income derived from business for two (2) consecutive years (Republic v. Gonzales, G.R. No, L-17744, 30 Apr. 1965) 2. Substantial under-declaration of income in the Income tax return for four (4) consecutive years coupled by intentional overstatement of deductions. (Perez v. CTA, GR No. L-10507, 30 May 1958) Q HSBC transferred the assets of its Merchant Acquiring Business in the Philippines to GPAP Phils., Inc, The CIR issued a Final Assessment Notice (FAN) against HSBC for deficiency Income Tax on the sale of joodwill” of its Merchant Acquiring Business (MAB), HSBC filed its Administrative Protest. CIR issued a Final Decision on Disputed Assessment (FDDA). HSBC, thus, filed the present Petition for Review with the CTA Division. In its Answer, CIR claimed that the Deed of Assignment did not pertain to a sale of shares but to a sale or transfer of business or “Goodwill,” which is subject to ordinary income tax and not capital gains tax. CTA Division granted HSBC's petition and cancelled the FDDA and FAN. The CTA Division found that, contrary to CIR's assertion, the evidence bears that the transaction in question isa sale or transfer of capital asset, and not, a sale of an ordinary asset which the CTA En Banc affirmed. Is the act of the respondent one that falls as tax evasion? ‘A:NO, Ataxpayer has the legal right to decrease the amount of what otherwise would be his taxes or altogether avoid them by means which the law permits, This is called tax avoidance, It is the use oflegal means to reduce tax liability. However, this method should be used! by the taxpayer in ‘good faith and at arm's length. In this case, when HSBC transferred the assets of its MAB in the Philippines to GPAP-Phils, Ine. in exchange for shares, pursuant to the tax-free exchange provision under Section 40(C)(2) of the 1997 NIRC, as amended, and subsequently. sold such shares to GPAP-Singapore and pald the corresponding CGT in accordance with Section 27(D)(2) of the same Code, itsimply availed of tax saving devices within the means sanctioned by law. Further, this methodology ‘was adopted by HSBC not merely to reduce taxes but also for legitimate business purpose — ie, the restructuring of the MAB to achieve more efficiency and economies of scale. Consequently, what was employed to minimize taxes wasa tax avoidance scheme. (CIR v Co, et al. GiR, 241424 09 Dec 2020, Caguioa) What isthe Will Blindness Doctrine? ‘A: Pursuant to the Will Blindness Doctrine, a taxpayer can ‘no longer raise the defense that the errors on their tax returns are not thelr responsibility or that it Is the fault of the accountants they hired. (Ingles 2021) ‘The only thing that needs to be proven is that the taxpayer ‘was aware of his obligation to file the tax return, but he nevertheless voluntarily, knowingly, and intentionally failed to file the required returns. (People v. Kintanar, CTA EB, Criminal Case No, 005, 03 Dec. 2010) Q When will compensation or set-off arise? ‘A: Compensation or set-off shall take place when two persons, in their own right, are creditors and debtors of each other, (Art 1278, Civil Code) gy University oF Santo Tomas 18 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 Q: What are the rules governing compensation or set off as applied in taxation? R: No set-off is admissible against the demands for taxes levied for general or local governmental purposes. ‘Taxes cannot be subject to compensation because the government and the taxpayer are not creditors and debtors of each other. (Philex Mining Corporation ¥. CIR, GR. No, 125704, 28 Aug. 1998; CIR ¥. Toledo Power Company, GR. No, 196415, 02 Dec, 2015) NOTE: The prevalent rule in our jurisdiction disfavors set offor legal compensation of tax obligations for the following 1, Taxes are of a distinct kind, essence, and nature, and these impositions cannot be so classed in merely the same category as ordinary obligations; 2. The applicable laws and principles governing each are peculiar, not necessarily common to each; and 3. Public policy is better subserved if the integrity and dependence of taxes be maintained under the Lifeblood Doctrine. The collection of a tax cannot await the results of a lawsult against the government (Republic v. Mambulao Lumber Company, GR. No. L= 177725, 28 Fob, 1962; Francia v. IAC, GR. No. 1-67649, 28 June 1988; Caltex Philippines, Inc. v. Commission on Audit, GR No. 92585, 08 May 1992) XPN: Where both the claims of the government and the taxpayer against each other have already become due, demandable, and fully liquidated, compensation takes place by operation of law and both obligations are ‘extinguished to their concurrent amounts. In the case of the taxpayer's claim against the government, the government must have appropriated the amount thereto, (Domingo v. Garlitos, GR. No. 1-18994, 29 June 1963) G: Can an assessment for a local tax be the subject of set-off or compensation against a final judgment for a ‘sum of money obtained by a taxpayer against the local government that made the assessment? (2005 BAR) NO. Taxes and debts are of different nature and character. Taxes cannot be subject to compensation for the sirmple reason that the government and the taxpayers are not creditors and debtors of each other, debts are duc to the government in its corporate capacity, while taxes are due to the government in its sovereign capacity. (South African Airways v. CIR, G.R. No. 180356, 16 Feb. 2010) NOTE: Itis only when the local tax assessment and the final judgment are both overdue, demandable, and fully liquidated that set-off or compensation may be allowed (Domingo v, Garlltos, G.R. No, 1-18994, 09 June 1963) IIL LEGISLATIVE DEPARTMENT. A. LEGISLATIVE POWER ‘The power or competence to Propose, Enact, Aniend, or Repeal Laws. It is vested in the Congress which shall consist ofa Senate and a House of Representatives, except to the extent reserved to the people hy the provision on initiative and referendum. (Sec: 1, Art VI, 1987 Constitution) 1. SCOPE AND LIMITATIONS ‘The following may exercise legislative power (Co-Lo-R) 1. Congress; 2, Regional/Local Government Units; and 3. The People through initiative and Referendum. (2002 BAR) 2, PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS GR: What has been delegated cannot be delegated. It is based upon the ethical principle that such delegated, power constitutes not only as a right, but also as a duty to bbe performed by the delegate through the instrumentality ‘of his own judgment and not through the intervening mind ‘of another. A further delegation of such power, unless permitted by the sovereign power, would constitute a negation of this duty in violation of the trust reposed in the delegate. (Cruz, 2014) XPNS: 1. Delegations to the People at large; a. RA.No. 6735 - The Initiative and Referendum Act as authorized by the constitutional mandate for the creation of a system of legislation by initiative and referendum, b. A plebiscite is required in the creation, division, ‘merger, abolition of province, city, municipality, or barangay or the substantial alteration of its boundary. (Sec. 10, RA. No. 7160) NOTE: These are more of reservations of power by the people than delegations considering the fact that the people are repositories of all governmental powers, 2. Emergency powers of the President; 3. Tariff powers of the President; 4, Delegation to local governments; and 19 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAWPOLITICAL LAW 5. Delegation to Administrative bodies of the power of subordinate legislation, (Cruz, 2014) B, HOUSES OF CONGRESS; COMPOSITIONS AND QUALIFICATIONS ‘SENATE : Dein ‘One who has been declared by competent authority as insane or incompetent; or 2. One who has been sentenced by final judgment for: (SIR-18-M) a. Subversion; b. Insurrection; ©. Rebellion; d._ Any offense for which he has been sentenced toa penalty of more than 18 months; or fe. Acrime involving Moral turpitude, XPN: When the offender has been given plenary or pardon or granted amnesty. (Sec. 12, BP. 881) ‘2, HOUSE OF REPRESENTATIVES a Cisne een ay Apportionment of Legislative Districts Legislative apportionment is. the determination of the number of representatives which a State, country, or other subdivision may send to a legislative body. It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts (Bagabuyo v, COMELEG, GR. No. 176970, 08 Dec. 2008) Manner of Reapportionment Reapportionment s therealignment or change in legislative istriets brought about by changes in population and ‘mandated by the constitutional requirement of equality of representation, (Bagabuyo v. COMELEG GR. No, 176970, 08 Dec. 2008) Reapportionment may be made through a special law. The Constitution does not preclude the Congress from increasing its membership by passing a law other than a general reapportionment law. To hold that reapportionment can only be made through a general apportionment law, with a review of all the legislative districts allotted to each local government unit nationwide, ‘would create an inequitable situation where a new city or province created by Congress will be denied legislative representation for an indeterminate period of time. Thus, a Jaw converting a municipality into a highly-urbanized city automatically creates a new legislative district and, consequently, increases the membership of the HoR. (Mariano, Jr. v. COMELEG G.R. No, 118577, 07 Mar. 1995) NOTE: The Constitution doesnot requirea plebiscite for the creation of a new legislative district by a legislative reapportionment. It is required only for the creation of new local government units. (Bagabuya v. COMELEC, 2008, GR No, 176970, 08 Dec, 2008) (2015 BAR) Gerrymandering (2014 BAR) Formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party. It is not allowed because Sec. 5(3), Art. VL of the Constitution provides that each district shall comprise, as far as practicable, contiguous, compact and adjacent territory. (Rernas, ibid.) Congress enacted a law creating the legislative district of Malolos based on a certification of the demographic projection from the National Statistics Office (NSO) stating that by 2010, Malolos is expected to reach the population of 250,000, hence entitling it to one legislative district. Is the law valid? ‘A: NO. Congress cannot establish a new legislative district based on a projected population of the NSO to meet the population requirement of the Constitution in the reapportionment of legislative districts. PI Party-list System ‘A mechanism of proportional representation in the election of representatives to the HoR from national, regional and sectoral parties or organizations or coalitions thereof registered with the COMELEC. (Sec, 3(a), A. No. 7941) NOTE: Party-list representatives shall constitute 20% of the total number of representatives in the HoR including those under the party list. (Sec, 5(2), Art VI, 1987 Constitution) (2007 BAR) National and Regional parties need not represent the ‘To require all national and regional parties under the party- list system to represent the “marginalized and underrepresented” is to deprive and exclude, by judicial flat, ideology-based and cause-oriented parties from the party-list system. To exclude them from the party-list system is to prevent them from joining the parliamentary struggle, leaving as their only option armed struggle. To exclude them from the party-list system is, apart from being obviously senseless, patently contrary to the clear intent and express wording of the 1987 Constitution and RA. No. 7941. (Atong Paglaum v. COMELEC, ibid.) gy University oF Santo Tomas 20 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 canara i ach registered party, organtzation or coalition shal submit to the COMELEG not later than 45 days before the election list of names, not less than five (5), from which party-list representative shall be chosen in case tt obtains the required nuraber of votes. (Sec: 8 RA. No, 7941) ‘Qualifications of a Party-list Nominee (Nat-Re*-90-25) 1, Natural- born citizen of the Philippines; 2. Registered voter; 3. Resident of the Philippines for at least 1 year immediately preceding the day of the election; 4. Able to Read and write; 5, Bonafide member of the party or organization which he seeks to represent for at least 90 days preceding lection day; and NOTE: In the case of sectoral parties, to be a bona fide party-list nominee, one must either belong to the sector represented, or have a track record of advocacy for such sector. (Atong Paglaurn v. COMELEG, tbid.) 6. Atleast 25 years of age on the day of the election. (For youth sector nominees, he must be atleast 25 years and not more than 30 years of age) NOTE: Any youth representative who attains the age of 30 during his term shall beallowed to continue in office until the expiration of his term, ‘Representatives under Sec 11 of RA 7941 (2014 BAR) 1, The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the ‘number of yotes they garnered during the elections. 2. The parties, organizations, and coalitions receiving at least 2% ofthe total votes cast for the party-list system, shall be entitled to one guaranteed seat each, 3, Those garnering sufficient mumber of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated. 4, Each party, organization, or coalition shall be entitled to not more than 3 seats. NOTE: In computing the additional seats, the guaranteed, seats shall no longer be included because they have already been allocated at one seat each to every two- percenter. Thus, the remaining available seats for allocation as “additional seats” are the maximum seats reserved under the party-list system less the guaranteed seats, Fractional seats are disregarded in the absence of a provision in RA, No. 7941 allowing for a rounding off of fractional seats. (BANAT v. COMBLEG, GR. No. 179271, 21 Apr. 2009) 2% threshold as regards the allocation of additional 7 7 ‘The Court struck down the 2% threshold only in relation to the distribution of the additional seats as found in the second clause of Sec, 11(b) of RA. No, 7941, The 26 threshold presents an unwarranted obstacle to the full implementation of Sec. 5(2), Art. VI of the Constitution and prevents the attainment of the “broadest possible representation of party, sectoral or group interests in the House of Representatives.” (BANAT v. COMELEC, G.R. No. 179271, 21 Apr. 2009} NOTE: The 2% threshold Is constitutional only insofar as the determination of the guaranteed seat is eoncerned. ‘The Banat Ruling NOTE: Sec. 6(8) of RA 7941 provides for two separate grounds for delisting. These grounds cannot be mixed or combined to support delisting, “The disqualification for failure to garner 2% party-list votes in two preceding elections should now be understood, in light of the Banat ruling, to mean failure to qualify for a seat in two preceding elections for the uuency in which it has registered, (PGBI . COMELEC, GR:No, 190529, 29 Apr. 2010) C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND QUALIFICATIONS iaanice Pitin — a 1. Immunity from Arrest, This grants the legislators the privilege from arrest while Congress is “in session’, whether regular or special, with respect to offenses that are punishable by imprisonment for not more than six (6) years. (Sec. 11, Art. VI, 1987 Constitution) This applies regardless of whether or not he is, attending the session. (People , Jalosjos, GR. Nos. 132875- 76,03 Feb. 2000) NOTE: Session covers the entire period from its initial convening until its final adjournment. 2. Legish Privilege Speech No member shall be questioned or held liable in any forum. other than his respective Congressional body for any debate or speech in Congress or inany committee thereof. (Sec. 11, Art, VI, 1987 Constitution; Pobre v. Sen. Santiago, A.C. No. 7399, 25 Aug. 2009) 21 UNIVERSITY OF SANTO TOMAS (24 FACULTY OF CIVIL LAWPOLITICAL LAW Requirements for the privilege of speech and debate to. operate 1. Remarks or comments are made while in session; and 2. Must be made in connection with the discharge of official duties (Cruz, 2014) Q: The Senate Committee on Accountability of Publ Officials and Investigation conducted an investigatis in aid of legislation, regarding the alleged P1.601 billion overpricing of the new 11-storey Makati City Hall Il Parking Building. During media interviews inthe Senate, particularly during gaps and breaks in the plenary hearings, Sen. Trillanes expressed that Antonio Tiu appearsto be a “front” or’ is acting as a “dummy” of the actual and beneficial owner of the Hacienda Binay. As such, Tiu filed a complaint for damages against’ Sen. Trillanes. Consequently, Sen. Trillanes asked for the dismissal of the case claiming he enjoys parliamentary immunity. Is Sen. Trillanes correct? : NO. The remarks of Sen. Trillanes fall outside the privilege of speech or debate under Sec. 11, Art. VI of the 1987 Constitution. The statements were clearly not part of any speech delivered in the Senate or any of its committees They were not also spoken during any debate, It cannot likewise be successfully contended that they were made in the official discharge or performance of Sen. Trillanes! duties as a Senator, as the remarks were not part of or integral to the legislative process. To participate in or respond to media interviews is not an official function af any lawmaker; itis not demanded by his sworn duty nor is, it a component of the process of enacting laws. A lawmaker's participation in media interviews is not a legislative act, but is “political in nature,” outside of the ambit of the immunity conferred under the Speech or Debate Clause in the 1987 Constitution. (Sen. Antonlo ‘Trillanes vs. Hon. Evangeline Castillo-Marigomen, GR. No. 223451, 14 Mar. 2018) D.QUORUM AND VOTING MAJORITIES Instances when Congress is Voting Separately and Voting lointly SEPARATE (V-I-P-A-S) JOINT (H-M) 1. Confirming nomination of Vice-President (Sec 9 Art. VIL 1987 Constitution) 2, Determining President's Inability to discharge the powers|* When revoking or and duties of his office] "ending (Sec. 11, Art. Vil, 1997)» Proclamation suspending, the Constitution) privilege of writ of Habeas corpus (Sec. 18. Ar. Vi, 1987 Constitution) 3, Choosing the President Im case of a tie (See. 4, Are VIL «1987 tion) 2. When revoking or extending the declaration of Martial law (Sec. 18 Art. Vil 1987 Constitution) 4, Proposing Constitutional Amendments (See. 1, Art XVI, 1987 Constitution) Dedlaring the existence ofa State of war in joint session (See. 23, Art. Vi 1987 Constitution) Majority vote of all its respective members (Sec. 16(1), Art. VL 1987 Constitution) Elect the Senate President or House of Representatives Speaker Majority vote of all the members (See. 18, Art. VI 41987 Constitution) Commission on Appointments ruling Majority of all the Passing alaw grantingany |memhers of Congress tax exemption (Sec. 28(4), Art. VI, 1987 Constitution) gy University oF Santo Tomas 22 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 Peary eee To suspend or expel a member in accordance | 2/3 fal its members (See, 16(3), AreVi, 1987 with its rules and i Constitution) proceedings 1/5 of the members To enter the Yeas and | present Nays in the Journal (Sec. 16(4), Art. VI, 1987 Constitution) 2/3 of both houses in joint session voting separately (Sec. 4 Art Vi, 1987 Constitution) To declare the existence ofa state ofwar E, DISCIPLINE OF MEMBERS F. PROCESS OF LAW-MAKING 1, No bill passed by either House shall become a law unless It has passed 3 readings on separate days. 2, Printed copies of the bill in its final form should be distributed to the Members 3 days before its passage 3. Upon the last reading of a bill, no Amendment thereto shall be allowed. 4, The Yote on the bill shall he taken immediately after the last reading of a bill 5, The yeas and the nays shall he Entered in the Journal. XPN: The cértificationof the President, due to the necessity of its immediate enactment to meet a public calamity or ‘emergency, dispenses with the reading on separate days ‘and the printing of the bill in the final form before its final approval. (Sec, 26(2) Art. VI, 1987 Constitution; Tolentino v. Secretary of Finance, GR. No, 115455, 30 Oct. 1995) Instances when a bill becomes a law (1991, 1993, 1996 BAR) (AS-O-Fa-Bi) 41. Approved and Signed by the President 2, Presidential veto Qverridden by 2/3 vote of all ‘members of both Houses 3, Eallure of the President to veto the bill and to return it with his objections to the House where it originated, within 30 daysafter the date of receipt 4, ABill calling a special election for President and Vice- President under Sec. 10. Art. VII becomes a law upon its approval on the third reading and final reading. Bule on Presidential Veto GR: Ifthe President disapproves a bill enacted by Congress, he should veto the entire bill. He is not allowed to veto separate items of a bill. (Sec. 27(1), Art Vi, 1987 Constitution) XPN: Item-veto Is allowed in case of Appropriation, Revenue, and Tariff bills (Sec. 27(2), Are VI, 1987 Constitution) (1991, 2010 BAR) XPNs to the XPN: 4. Doctrine of inappropriate provisions - A provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is not an appropriation or revenue item. (Gonzales v. Macaraig, G.R: No. 87636, 19 Nov. 1950) 2. Executive impoundment - Refusal of the President to spend finds already allocated by Congress for specific purpose. It is the failure to spend or obligate budget authority of any type. (Philconsa v. Enriquez, GR. No. 113105, 19 Aug. 1994) G. APPROPRIATION AND REALIGNMENT Definition of Appropriation ‘The power of the purse belongs to Congress, subject only to the veto power of the President. The President may propose the budget, but still the final say on the matter of appropriations is lodged in the Congress. GR: Transfer of items of appropriations cannot be inserted as provisions in appropriation laws. XPN: Appropriations Law may authorize the following officials to augment any item for their offices from savings in other items of their appropriations: President; Senate President; Speaker of the House; Chief Justice; and Heads of Constitutional Commission (Sec. 24(5), Art. Vi, 1957 Constitution) UNIVERSITY OF SANTO TOMAS (24 FACULTY OF CIVIL LAWPOLITICAL LAW H, LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS Q In the exercise of its power to investigate in aid of legislation, can Congress cite a person in contempt and 10. The Court finds that the period of imprisonment under the inherent power of contempt by the Senate during Inquiries in ald of legislation should only last until the termination of the legislative inquiry under which the said power fs invoked or when Congress adjourns sine dle, If Congress decides to extend the period of imprisonment for the contempt committed by a witness beyond the duration of the legislative inquiry or after it has already adjourned, then it may filea criminal case under the existing statute or enact a new law to Increase the definite period of imprisonment. Question hour vs. Legislative investigation Poor Penna apap ia er wy (SEC.21, ART. VI) As to persons who may appear Only a department head Any person. As to who conducts the investigation Entire body. Committees/Entire Body As to subject matter Matters related to the department only ‘Any matter for the purpose oflegislation As to attendance/compliance Discretionary Compulsory/mandatory 1, POWER OF IMPEACHMENT 1. The House of Representatives shall have the exclusive power to initiate ll cases of impeachment; and Not more than one impeachment proceeding shall be initiated against the same official within a period of one year. (One-year bar rule) J. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS ELECTORAL TRIBUNAL a a ae 1, 3 Supreme Court Justices designated by the Chief Justice; 2. 6 members of the Senate or the House of Representatives, as the case may be, chosen on the basis of proportional representation from the political parties and from those registered under the party-list system represented therein. (1987 Constitution, Art. V1, Sec. 17) NOTE: The senior Justice in the Electoral Tribunal shall be its Chairman, 11. POWERS AND JURISDICTION lurisdiction of the Electoral Tribunals Each electoral tribunal shall be the sole Judge of all contests relating to the election, returns, and qualifications of their respective members (See. 17, Art. Vl, 1987 Constitution). This Includes determining the validity or invalidity of a proclamation declaring a particular candidate as the winner, Each ET is also vested with rule-making power (Lazatin v. HRET, GR. No, L-84297, 08 Dec. 1988) istnsote rei Sec. 17, Art VI, 1987 Constitution provides that the SET/HRET is the sole judge of all contests. Hence, from its decision, there is no appeal. Appeal is not a constitutional right but merely a statutory right. Remedy from an Adverse Decision of the Electoral ‘Tribunal A special civil action for certiorari under Rule 65 of the Rules of Court may be filed. This is based on grave abuse of discretion amounting to lack or excess of jurisdiction, This shall be filed before the Supreme Court. NOTE: Under the doctrine of primary administrative Jurisdiction, prior recourse to the House is necessary before the petitioners may bring the case to the Supreme Court. (Pimentel vs. House of Representative Electoral Tribunal, GR, ‘No, 141489, 29 Nov. 2002) gy University oF Santo Tomas 24 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 COMMISSION ON APPOINTMENTS Presidential appointments subject to confirmation by the Commission (Ex-A-CC-0-Co-Ju-Co) 1. Heads of the Executive departments; XPN: Vice-President who is appointed to the post 2. Ambassadors, other public ministers, or consuls; 3. Officers of the AFP from the rank of Colonel or naval Captain; and 4. Other Officers whose appointments are vested in him by the Constitution: a.Chalrman and members of 3 Constitutional Commissions; >b.Regular members of the Judicial and Bar Council; . Members of the Regional Consultative Council. NOTE: The enumeration is exclusive K. INITIATIVE AND REFERENDUM, Initiative Itis the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. (Sec. (a), RA. No, 6735, The Initiative and Referendum Act) Kinds of initiative under the Initiative and Referendum Act (RA 6735): (Co-Sta-Loc) 1. Initiative on the Constitution ~ Refers to a petition proposing amendments to the Constitution; 2. Initiative on Statutes ~ Refers to a petition to enact a national legislation; and 3. Initiative on Loeal Legislation ~ Refers to a petition proposing 10 enact a regional, provincial, municipal, city, or barangay law, resolution or ordinance (Sec. 3(a), RA.Na, 6735) Referendum 1t As the power of the electorate to approve or reject legislation through an election calle for that purpose. (Sec: (6), RA. No. 6735) Kinds of Referendum 1. Referendum on Statutes- Refers toa petition to approve or reject a law, or part thereof, passed by Congress. 2. Referendum on Local Law ~ Refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. (See. 3(¢), RA 6735) Initiative vs Referendum (2000 Bar) INITIATIVE Pn Extent 1. Propose amendments to the Constitution; and Approve or legislation reject 2. Propose and enact legislation. NOTE: The following are the limitations on initiative or referendum: 1. Nopetition embracing more than one (1) subject shall bbe submitted to the electorate; and. 2. Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution, cannot be subject to referendum until 90 days after their effectivity. (Sec. 10, RA 6735) IV. EXECUTIVE DEPARTMENT. A. QUALIFICATIONS, ELECTION, AND TERM OF THE PRESIDENT AND VICE-PRESIDENT Qualifications of the President and the Vice-President (WP) (Nat-Re?-40-10) ‘Natural-born citizen of the Philippines; A Registered voter, Able to Read and write; At least forty (40) years of age on the day of the lection; and 5, Aresident ofthe Philippines for at least ten (10) years immediately preceding such election. (Sec. 2, Art. VI, 1987 Constitution) NOTE: The enumeration is exclusive. PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS Privileges of the President and Vice-President Ee Sn 1. Salary is determined Dy law and shall not to be decreased during his tenure (Sec. 6, Art vu, 1987 Constitution}; andl 25 UNIVERSITY OF SANTO TOMAS (24 FACULTY OF CIVIL LAWPOLITICAL LAW 2, Salary Is determined [2. If appointed toa by law and shall not to | Cabinet post, no need be decreased during| for Commission on his tenure; (Sec. 6 Art | Appointments’ Vil, 1987 Constitution) | confirmation. (Sec. 3, and, Ar. VI, 1987 Constitution) 3, Immunity from sult for official acts Doctrine of Executive Immunity The President is immune from suit or from being brought to court during the period of his incumbency and tenure, Reason: Assures that the President is free to exercise his Presidential duties and responsibilities without any hindrance or distraction, GR: The privilege of immunity can only be invoked by the President by virtue of the office, not by any other person on. behalf of the President. (De Lima vs Duterte, GR. No. 227635, 15 Oct. 2019) Rules on Executive Immunity. A. Rules on immunity during tenure: 1, The President is immune from sult during his tenure, (in re: Bermudez, G.R. No. 76180, 24 Oct. 1986) 2. An impeachment complaint may be filed against him during his tenure, (Art. X1, 1987 Constitution) 3. The President may not be prevented from instituting sult. (Soliven v, Makaslar, GR No, 82585, 14 Nov. 1988) 4, There is nothing in our laws that would prevent the President from waiving the privilege, He may shed the protection afforded by the privilege. (Soliven v. ‘Makaslar, ibid) 5, Heads of departments cannot invoke the President's immunity. (Gloria v. CA, GR. No, 119903, 15 Aug. 2000) B. Rule on immunity after tenure: Once out of office, even before the end of the 6-year term, immunity for non-official acts is lost. Immunity cannot be claimed to shield a non-sitting President from prosecution for alleged criminal acts done while sitting in office. (Estrada v. Desierto, GR. Nos. 146710-15, 02 March 2001) Presidential Privilege It is the power of the President and high-level executive branch officers to withhold certain types of information from Congress, the courts, and ultimately the public. (2009, 2010, and 2015 BAR) Persons who can Invoke Executive Privilege 1. President - Being an extraordinary power, the privilege must be wielded only by the highest official in the executive department. Thus, the President may not authorize her subordinates to exercise such’ power. 2, Executive Secretary - upon proper authorization from the President- must state that the authority is “By order of the President,” which means he personally consulted with the President. Scope of Executive Privilege 1, Conversations and correspondences to enable the President and those who assist him to freely “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately"; 2. It likewise covers military, diplomatic and other national security matters which, in the interest of national security, should not be divulged: 3. It includes information between inter-government agencies prior to the conclusion of treaties and executive agreements, discussions in closed-door ibinet meetings, and matters affecting national security and public order, Presidential Communications Privilege vs. Deliberative ons PST Conway Lecmapcioe tcl Pees ami Scope of the privilege Pertains *° | includes advisory documents or other | °Pinlons, recommendations and deliberations comprising part of a process by which materials that reflect presidential —_decision- making and deliberations that the President believes | S°Ver™mmental decisions should remain | 202 Policies are confidential formulated To whom applicable Applies to decision- ale e Reston making of the President Bae Foundation Rooted in the constitutional principle of separation of powers and the President’s unique constitutional role, Rooted in common law privileges gy University oF Santo Tomas 26 2022 GOLDEN NoTEsPRE-WEEK NOTES 2022 ane 3 edi real Cabinet Members, and their deputies or assistants, unless otherwise provided in the Constitution (1996, 1998, 2002, 2004 BAR) 1, Shall not recelve any other emolument from the government or any other source (Sec: 6, Art. VI, 1987 Constitution); NOTE: Emolument refers to any compensation received for services rendered or from possession ofan office, 2. Shall not hold any other office or employment during, their tenure unless: a. Otherwise provided in the Constitution (eg. VP can bbe appointed as a Cabinet Member without the need of confirmation by Commission on Appointments; Sec. of justice its in the Judictal and. Bar Council) 1b. The positions are ex-officio and they do not receive any salary or other emaoluments therefore (eg. See of Finance as head of the Monetary Board}; 3. Shall not practice, directly or indirectly, any other profession during their tenure; 4, Shall not participate in any business; 5. Shall not be financially interested in any contract with, ‘or In any franchise, or special privilege granted by the Government, including GOCCs; 6. Shall avoid conflict of interest in conduct of office; and 7. Shall avoid nepotism. (Sec. 13 Art VIL 1987 Constitution) C. POWERS OF THE PRESIDENT 1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS OW 8 Tale-Care” Gi ‘The power to take care that the laws be faithfully executed. (Sec. 17, Constitution, Art. VIL) ‘The law he is supposed to enforce includes the Constitution, statutes, judicial decisions, administrative rules and regulations and municipal ordinances, as well as treaties entered into by the government. Power of administrative reorganization ‘The President has the power to reorganize the offices and agencies In the executive department in line with his constitutionally granted power of control over executive offices and by virtue of a previous delegation of the legislative power to reorganize executive offices under ‘existing statutes, (Banda v. Ermita, GR. No, 166620, 20 Apr. 2010} ‘2, POWER OF APPOINTMENT ESN Limitations on the Power of Appointment 1. The spouse and relatives by consanguinity or affinity within the 4 civil degree of the President shall not, ‘luring his tenure, be appointed as: ‘Memibers of the Constitul Office of the Ombudsman, Secretaries; Undersecretaries; and Chairmen or heads of bureaus or offices, including GOCCs and their subsidiaries. (Sec. 13, Art. VI, 1987 Constitution) nal Commissions; ppose NOTE: If the spouse, etc., was already in any of the above offices at the time before his/her spouse became President, he/she may continue in office. What is prohibited is appointment and reappointment, not continuation in office. They can also be appointed to the judiciary and as ambassadors and consuls, (Bernas, 2009) 2. Midnight Appointments GR: TWo months immediately before the next presidential clections and up to the end of his term, a President or Acting President shall not make appointments. XPN: Temporary appointments to executive positions when continued vacancies therein wil prejudice public service or ‘endanger public safety. (Sec. 15, Art VIL, 1987 Constitution) PO En ‘CONFIRMATION OF APPOINTMENTS. ‘Snpolatmenta where coefirmatian of tee-Gommisnion NOT HeQuirea: 1. All other officers of the Government whose appointments are not otherwise provided for by law; 2. Those whom the President may be authorized by law to appoint; and 3. Officers lower in rank whose appointments the Congress may by law vest in the President alone, (Glanato v. Sistoza, GR. No, 107369, 11 Aug. 1999) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW