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Archive for the ‘Election Law’ Category

Recall, Withdrawal and Revocation of “Midnight Appointments”

Posted by lexforiphilippines on August 6, 2010

Under Executive Order No. 2, issued on 30 July 2010 by President Benigno S. Aquino III, the following appointments, made by former President Gloria Macapagal-Arroyo and other appointing authorities in her administration, were considered “midnight appointments” that violate Section 15, Article VII of the 1987 Constitution* and Section 261(g) of the Omnibus Election Code,** and were thereby recalled, withdrawn and revoked:

  • Those made on or after 11 March 2010, including all appointments bearing dates prior to 11 March 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after 11 March 2010, except temporary appointments in the executive positions when continued vacancies will prejudice public service or endanger public safety as may be determined by the appointing authority;
  • Those made prior to 11 March 2010, but to take effect after said date or appointments to office that would be vacant only after 11 March 2010; and
  • Appointments and promotions made during the period of 45 days prior to the 10 May 2010 elections in violation of Section 261 of the Omnibus Election Code.

The positions covered or otherwise affected were declared vacant.  The Executive Secretary was authorized to designate an officer-in-charge (OIC) until the replacement has been appointed and qualified, when designation of an OIC is necessary to maintain efficiency in public service and ensure the continuity of government operations.

* Section 15, Article VII of the 1987 Constitution states that: “Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service of endanger public safety.”

** Section 261 (g) of the Omnibus Election Code considers it an election offense if a government official, during the period of 45 days before a regular election and 30 days before a special election: (1) appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority by the Commission on Elections (COMELEC) when the position to be filled is essential to the proper functioning of the office or agency concerned, and the position will be filled in a manner that will not influence the election, and except when appointment of a new employee is urgently needed, in which case COMELEC should be notified of the appointment within 3 days from the date of appointment; or (2) promotes or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations.

For a copy of Executive Order No. 2, click on Laws under Tools.


Posted in Election Law, Law School, Laws and Implementing Rules, Notes, Political Law | Tagged: , , | Leave a Comment »

Quinto v. COMELEC, G.R. No. 189698 (The Motion for Reconsideration Ruling)

Posted by lexforiphilippines on February 25, 2010

On December 1, 2009, the Supreme Court voting 8-6 declared as unconstitutional the second provision in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of Batas Pambansa Blg. 881 and Section 4(a) of COMELEC Resolution No. 8678, for being violative of the equal protection clause and for being overbroad. The ponente of the decision was Justice Antonio B. Nachura.

On February 22, 2010, voting 10-5, the Supreme Court reversed its earlier ruling, granted the motions for reconsideration of its December 1, 2009 decision and upheld the constitutionality of the three provisions in election laws that deemed appointive officials automatically resigned once they filed their certificates of candidacy (CoCs). The ruling was penned by Chief Justice Reynato S. Puno with a dissent from Justice Nachura.

Speaking for the Court, Chief Justice Puno rationalized that the issue as to equal protection has been addressed in the earlier case of case of Farinas v. Executive Secretary, (G.R. No. 147387, December 10, 2003) where the Court stated that  “the equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other.  x x  Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.   x x Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.”

The Court goes on to state that “By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. x x x Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.”

In view of these pronouncements, Justice Puno states that the case at bar is “a crass attempt to resurrect a dead issue.” And that “the miracle is that the (our) assailed Decision gave it new life.  We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really “adherence to precedents,” mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner.”

“The Farinas ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum. This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any statement as to the matter on which the decision is predicated.”

The concern, voiced by Justice Nachura, in his dissent, that elected officials (vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring – but not by the Court. The remedy lies with the Legislature. “It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislature’s power to make the deemed-resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. The Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint.”

Posted in Election Law, Law School, Political Law | Tagged: , , | 2 Comments »

Dual Citizenship or Dual Allegiance?

Posted by lexforiphilippines on February 5, 2010

Since it is election time, we are hearing a lot of cases being filed to seek the disqualification of certain candidates from seeking elective posts.  Most notable is the case for disqualification of Vivien Tan, daughter of Lucio Tan, from seeking the congressional seat for a Quezon City district.

But what is really the basis for disqualification? Is it dual citizenship or dual allegiance?

In Cordora vs. COMELEC, et al. (G.R. No. 176947, 19 February 2009) , the Supreme Court explained –

Dual citizenship is different from dual allegiance.

Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states.  For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis* is born in a state which follows the doctrine of jus soli.**  Such a person, automatically and without any voluntary act on his part, is concurrently considered a citizen of both states.

Given the provisions on citizenship under the 1987 Philippine Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states.  While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition – his active participation in the naturalization process.

Under Republic Act No. 9225,*** a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizen’s foreign citizenship.

Dual citizenship is not a ground for disqualification from running for elective position.  Like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the Oath of Allegiance contained therein.  On the other hand, a person with dual allegiance who seeks public office must (apart from meeting the qualifications under Philippine law) swear to an Oath of Allegiance and execute a Renunciation of Foreign Citizenship pursuant to R.A. 9225.

* A child’s citizenship is determined by its parents’ citizenship, as in the Philippines.

** A child’s citizenship is determined by its place of birth, as in the United States of America.

*** The Citizenship Retention and Reacquisition Act of 2003.

Posted in Cases, Election Law, Political Law | Tagged: , | 2 Comments »

Is Premature Campaigning Still an Election Offense? The Case of Penera vs. COMELEC (G.R. No. 181613; 25 November 2009)

Posted by lexforiphilippines on January 29, 2010

In Penera vs. COMELEC (G.R. 181613; 25 November 2009), the Supreme Court reversed its earlier decision (dated 11 September 2009) to disqualify a candidate (Penera) for premature campaigning. According to the High Court, at the time the supposed premature campaigning took place, Penera was not officially a “candidate” albeit she already filed her certificate of candidacy. Under Section 15 of Republic Act 8436, as amended by Republic Act 9369, a person who files his certificate of candidacy is considered a candidate only at the start of the campaign period, and unlawful acts applicable to such candidate take effect only at the start of such campaign period. Construing this law, the Supreme Court concluded that a candidate is liable for an election offense only for acts done during the campaign period, not before. Before the start of the campaign period, such election offenses cannot be committed and any partisan political activity is lawful. (For a comprehensive digest of the case, please click Digested Cases under Tools.)

Frankly and with due respect to the Court, I do not agree with the decision as it practically makes “premature campaigning” impossible to commit. No candidate will ever be held liable for premature campaigning even though this act is still prohibited under our present state of laws. Section 80 of the Omnibus Election Code, which prohibits this act, has not been repealed and remains good law.

The essence of premature campaigning is that the promotion/campaign is done outside the campaign period. It does not matter when a person officially becomes a candidate. If he promoted himself for election purposes before the campaign period, he should be disqualified if he pursues his candidacy. Otherwise, the very purpose of the proscription against premature campaigning will be defeated. Indeed, how can we say that the playing field among candidates has been leveled and that we can expect fair elections, when candidates will be allowed to promote themselves in advance and with impunity.

Besides, as observed by the Supreme Court in its earlier (11 September 2009) ruling, the prohibition against premature campaigning, under Section 80 of the Omnibus Election Code, applies to any person, whether a voter or a candidate. This only underscores that one does not have to be officially a candidate at the time of the alleged premature campaigning to be liable for an election offense.


Posted in Election Law, Law School, Political Law | Tagged: , | Leave a Comment »

Ang Ladlad- a partylist representative for now

Posted by lexforiphilippines on January 13, 2010

The Philippine Supreme Court issued a temporary restraining order against the COMELEC over its decision to disqualify the group “Ang Ladlad” from running as a partylist representative in the coming May 2010 elections. The Supreme Court en banc directed the COMELEC to recognize Ang Ladlad as an accredited partylist group and to include it in the printing of the ballots for the coming May elections pending the Court’s final ruling on the matter.

Posted in Election Law, Political Law, Uncategorized | Tagged: , | Leave a Comment »

Palatino, et al. vs. COMELEC G.R. No. 189868; 15 December 2009

Posted by lexforiphilippines on January 8, 2010

Registration of new voters extended by the Supreme Court to January 9, 2010. Under Tools, click Digested Cases to see why.

Posted in Election Law, Political Law | Leave a Comment »

Quinto v. COMELEC, G.R. No. 189698; 1 December 2009

Posted by lexforiphilippines on January 7, 2010

Are appointive officials who intend to run in the 2010 elections,   automatically resigned from office upon the filing of their Certificate of Candidacy (CoC)? Visit our Tools Section and click Digested Cases for the Supreme Court’s answer to this query.

Posted in Cases, Election Law, Political Law, Remedial Law | Tagged: , , , | Leave a Comment »