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Archive for the ‘Political Law’ Category

Conversion of Municipalities into Cities

Posted by lexforiphilippines on October 13, 2010

Section 10, Article X of the 1987 Constitution states that “(n)o province, city, municipality, or barangay shall be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.”

Applying this provision, the Supreme Court, in the case of League of Cities of the Philippines (LCP), et al. vs. Commission on Elections, et al. (G.R. No. 176951, G.R. No. 177499 & G.R. No. 178056; 24 August 2010), held that the creation of local government units must follow the criteria established in the Local Government Code and not in any other law.  The High Court stressed that Congress could not write such criteria in any other law, like laws creating cities or converting municipalities into cities.  The clear intent of the Constitution, said the High Court, was to insure that the creation of cities and other political units follow the same uniform, non-discriminatory criteria found solely in the Local Government Code.  Consequently, when Congress enacted cityhood laws which exempted 16 municipalities from the increased income requirement under the Local Government Code, as amended by Republic Act No. 9009 (RA 900), the exemption was held to be in violation of Section 10, Article X of the 1987 Constitution.  That the 16 municipalities had pending cityhood bills in Congress before the income requirement was increased was of no moment.  To be valid, said the High Court, such exemption must be written in the Local Government Code and not in any other law, including the cityhood laws.

To know more about said case, click on Digested Cases under Tools.

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Posted in Cases, constitutional Law, Notes, Political Law | Tagged: , , | Leave a Comment »

A Sense of Fair Play in Upholding an Immunity Agreement

Posted by lexforiphilippines on August 20, 2010

“More than any one, the government should be fair.” – The Supreme Court concluded its opinion in the case of Disini vs. Sandiganbayan (G.R. No. 180564; 22 June 2010) with this statement.

Said case involved an immunity agreement between petitioner and the State whereby petitioner agreed to testify for, and provide information and documents to, the State in two cases involving the contract for the construction of the Bataan Nuclear Power Plant, believed to have been brokered by one of his second cousin’s companies and attended by anomalies.  Under the same agreement, petitioner would not be compelled to testify in any other case which the state may bring against his said cousin.  Eighteen years after the immunity agreement was forged, and after petitioner complied with his undertaking, the State, through the PCGG, revoked its guarantee not to compel petitioner to testify against his second cousin.

Upholding petitioner’s immunity from testifying against his second cousin in other cases, the Supreme Court, in part, held:

“x x Trusting in the Government’s honesty and fidelity, (petitioner) agreed and fulfilled his part of the bargain.  Surely, the principle of fair play, which is the essence of due process, should hold the Republic on to its promise.”

“A contract is the law between the parties.  It cannot be withdrawn except by their mutual consent.  This applies with more reason in this case where (petitioner) had already complied with the terms and conditions of the Immunity Agreement. To allow the Republic to revoke the Agreement at this late stage will run afoul of the rule that a party to a compromise cannot ask for a rescission after it had enjoyed its benefits.”

To know more about the case and the Court’s ruling, click on Digested Cases under Tools and look for the digest of Disini vs. Sandiganbayan (G.R. No. 180564; 22 June 2010).

Posted in Cases, Civil Law, Law School, Political Law | Tagged: , , | 1 Comment »

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 »

The Philippine Truth Commission of 2010

Posted by lexforiphilippines on August 5, 2010

On 30 July 2010, President Benigno Simeon Aquino III issued Executive Order No. 1 creating the Philippine Truth Commission of 2010.  The Commission is tasked to investigate reports of graft and corruption “of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people,” involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration, and thereafter to submit its finding and recommendations to the President, Congress and the Ombudsman.

The Truth Commission shall be composed of a Chairman and four (4) members.  Officials of the Commission shall include a General Counsel, a Deputy General Counsel, a Special Counsel, and a Clerk of the Commission.

In relation to the graft cases it shall choose to investigate, the Truth Commission is empowered to:

  • Collect and receive evidence
  • Require any agency, official or employee of the Executive Branch, including government-owned or controlled corporations, to produce documents, books, records and other papers
  • Upon proper request, obtain information and documents from the Senate and the House of Representatives and records of investigations conducted by their committees
  • Upon proper request, obtain from the courts, including the Sandiganbayan and the Office of the Court Administrator, information or documents in respect to corruption cases filed with the Sandiganbayan or the regular courts
  • Invite or subpoena witnesses and take their testimonies, and for that purpose, administer oaths or affirmations
  • Recommend that a person be admitted as a state witness
  • Turn evidence over to the appropriate prosecutorial authorities for expeditious prosecution
  • Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for assistance and cooperation
  • Engage the services of resource persons, professionals and other personnel, when necessary
  • Engage the services of experts as consultants or advisers, when necessary
  • Promulgate rules and regulations and rules of procedure
  • Exercise such other acts incident to or appropriate and necessary in connection with the Commission’s objectives.

Any person called to testify before the Truth Commission has the right to counsel at any stage of the proceedings.  To ensure the safety of persons called to testify, the Commission may secure the assistance of the Philippine National Police and other appropriate government agencies.

If a government official or personnel (a) fails, without lawful excuse, to appear when subpoenaed by the Commission; or (b) appears before the Commission but refuses to take oath or affirmation, give testimony or produce documents for inspection, when required, he shall be subject to disciplinary action.  If a private person does the same, he may be dealt with in accordance with law.

The proceedings of the Truth Commission shall be open to the public.  However, the Commission, on its own, or on the request of the person testifying, may hold an executive or closed-door hearing when matters of national security or public safety are involved or when the personal safety of the witness warrants it.

The Truth Commission should accomplish its mission and render a comprehensive final report on or before 31 December 2012.  The comprehensive final report shall be published upon the President’s directive.

For a copy of Executive Order No. 1, click on Laws under Tools.

Posted in Law School, Laws and Implementing Rules, Notes, Political Law | Tagged: , | 1 Comment »

Can the Courts Compel Re-correction of Board Examination?

Posted by lexforiphilippines on July 27, 2010

In the recent consolidated cases of Antolin vs. Domondon, et al. (G.R. No. 165036; 5 July 2010) and Antolin vs. Fortuna-Ibe (G.R. No. 175705; 5 July 2010), involving a CPA Board examinee’s prayer for re-correction of her examination by the Board of Accountancy, the Supreme Court held that any claim for re-correction or revision of her examination cannot be compelled by the court.  The High Court reiterated its previous ruling in the case of Agustin Ramos vs. Sandoval (G.R. No. 84470, 2 February 1989), where it dismissed an action to compel the Medical Board of Examiners and the Professional Regulation Commission to re-correct the petitioning examinees’ ratings, explaining that the function of reviewing and re-assessing the answers to the examination questions was a discretionary function of the Medical Board, not a ministerial and mandatory one.

Click on Digested Cases under Tools to find a digest of the consolidated cases of Antolin vs. Domondon, et al. (G.R. No. 165036; 5 July 2010) and Antolin vs. Fortuna-Ibe (G.R. No. 175705; 5 July 2010).

Posted in Cases, Civil Law, Political Law, Uncategorized | Leave a Comment »

Charter Change – How the Constitution can be Amended

Posted by lexforiphilippines on July 20, 2010

Under Article XVII of the 1987 Philippine Constitution

  • Any amendment to, or revision of, the Constitution may be proposed by:

1. Congress (acting as a constituent assembly), upon a vote of three-fourths of all its Members; or

2. A constitutional convention.

A constitutional convention may be called by Congress by a vote of two-thirds of all its members.  Congress may, by a majority vote of all its members, opt to submit to the electorate the question of calling such a convention.

Any amendment to, or revision of, the Constitution, as proposed by a constituent assembly or a constitutional convention, shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the approval of such amendment or revision.

  • Amendments to the Constitution may also be directly proposed by the people through initiative upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters in the district.

Any amendment as proposed through said initiative shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the certification by the Commission on Elections of the sufficiency of the petition.

The power of initiative may be exercised only after 5 years from the ratification of the 1987 Constitution and only once every 5 years thereafter.  There must be an enabling law providing for the implementation of the exercise of this power.

* Republic Act No. 6735, otherwise known as “The Initiative and Referendum Act” was enacted by Congress and signed into law on 4 August 1989.  However, the Supreme Court, in Santiago vs. Comelec (G.R. No. 127325; 19 March 1997) declared R.A. 6735 “incomplete, inadequate or wanting in essential terms and conditions” to cover the system of initiative on amendments to the Constitution.

Posted in Political Law | 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 »

Exemption of Cooperatives from Taxes

Posted by lexforiphilippines on February 18, 2010

The Supreme Court declared that members of cooperatives are exempt from the 20% withholding tax on the interest of their savings and time deposits maintained with the cooperative. See the digest at Tools + Digested Cases Tab.

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

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.

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