FUNDAMENTAL POWERS OF THE STATE (Police Power) 1.

Define:

police poweris the power vested in the legislature by the Constitution to make, ordain, establish all manner of wholesome and reasonable laws for the good and welfare of the State and its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967) The basic purposes of police power are: a. to promote the general welfare, comfort and convenience of the people; (ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343; US VS. TORIBIO, 15 Phil. 85 b. to promote and preserve public health; (VILLANUEVA VS. CASTANEDA, September 21,

1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO VS. DIRECTOR OF HEALTH, 50 Phil. 595apprehend and confine lepers in a leprosarium) PROFESSIONAL REGULATIONS COMMISSION VS. ARLENE DE GUZMAN, ET AL., June 21, 2004 POLICE POWER/Public Health; THE RIGHT TO PRACTICE A PROFESSION Facts: After the Professional Regulations Commission (PRC) released the names of successful examinees in the Medical Licensure Examination, the Board of Medicines observed that the grades of the 79 Fatima College of Medicine successful examinees were unusually and exceptionally high in the two (2) most difficult subjects of the exam, i.e., Biochemistry and Obstetrics and Gynecology. The Board then issued Resolution No. 19 withholding the registration as physicians of all the examinees from Fatima College of Medicine. Compared with other examines from other schools, the results of those from Fatima were not only incredibly high but unusually clustered close to each other. The NBI Investigation found that the Fatima examinees gained early access to the test questions. On July 5, 1993, the respondents-examinees filed a petition for mandamus before the RTC of Manila to compel the PRC to give them their licenses to practice medicine. Meanwhile on July 21, 1993, the Board of medicine issued Resolution No. 21 charging the respondents of immorality, dishonest conduct, fraud and deceit and recommended that the test results of the Fatima Examinees be nullified. On December 19, 1994, the RTC of Manila promulgated its decision ordering the PRC to allow the respondents to take the physicians oath and to register them as physicians. The same was appealed by the PRC to the Court of Appeals which sustained the RTC decision. Hence, this petition. Held:

It must be stressed that the power to regulate the practice of a profession or pursuit of an occupation cannot be exercised by the State in an arbitrary, despotic or oppressive manner. However, the regulating body has the right to grant or forbid such privilege in accordance with certain conditions. But like all rights and freedoms guaranteed by the Constitution, their exercise may be regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and general welfare of the people. As such, mandamus will not lie to compel the Board of Medicine to issue licenses for the respondents to practice medicine. RA 2382 which prescribes the requirements for admission to the practice of medicine, the qualifications of the candidates for the board examination, the scope and conduct of the examinations, the grounds for the denying of the issuance of a physicians license, or revoking a license that has been issued. It is therefore clear that the examinee must prove that he has fully complied with all the conditions and requirements imposed by law and the licensing authority to be granted the privilege to practice medicine. In short, he shall have all the qualifications and none of the disqualifications. The petition is therefore granted.

power of eminent domain power of taxation

2. Differences and similarities

Didipio earth savers multi purpose association vs. denr sec. Elisea gozu, et al., 485 scra 586 Chico-Nazario, J. 1. The power of eminent domain is the inherent right of the State to condemn or to take

private property for public use upon payment of just compensation while police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property without compensation; 2. In the exercise of police power, enjoyment of a property is restricted because the

continued use thereof would be injurious to public welfare. In such case, there is no compensable taking provided none of the property interests is appropriated for the use or for the benefit of the public. Otherwise, there should be compensable taking if it would result to public use. 3. Properties condemned under police power are usually noxious or intended for noxious

purpose; hence , no compensation shall be paid. Likewise, in the exercise of police power, property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health and prosperity of the state. While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the case. Taking may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended such as the establishment of an easement. As such, an imposition of burden over a private property through easement (by the government) is considered taking; hence, payment of just compensation is required. The determination of just compensation, however, is a judicial function (EPZA vs. Dulay, 149 SCRA 305) and initial determinations on just compensation by the executive department and Congress cannot prevail over the courts findings.

Finally, service contracts with foreign corporations is not prohibited under the 1987 Philippine Constitution with foreign corporations or contractors would invest in and operate and manage extractive enterprises, subject to the full control and supervision of the State; this time, however, safety measures were put in place to prevent abuses of the past regime.

3. 4.

Limitations in the exercise of said powers Tests for a valid exercise of police power

a. the interests of the public, not mere particular class, require the exercise of police power; (LAWFUL SUBJECT) b. the means employed is reasonably necessary for the accomplishment of the purpose and not unduly oppressive to individuals. (LAWFUL MEANS). In short, the end does not justify the means.

ARTICLE II DECLARATION OF PRINCIPLES AND STATE POLICIES Selected principles Sec 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Elements of a State (for municipal law purposes) CODE: PTSG 1. A community of persons, more or less numerous (PEOPLE) 2. Permanently occupying a definite portion of territory (TERRITORY) 3. Independent of external control (SOVEREIGNTY) 4. Possessing an organized government to which the great body of inhabitants render habitual obedience (GOVERNMENT)

Definition of People
1. 2. 3. 4. A Community of persons; Sufficient in Number; Capable of maintaining the continued existence of the community; and Held together by a common bond of law.

CODE: CNCH

Definition of Sovereignty
1. LEGAL sovereignty 1. The supreme power to make law. 2. It is lodged in the people.

1. 1. 2. 3.

POLITICAL sovereignty The sum total of all the influences in a state, Legal and non-legal, Which determine the course of law. 1. According to the Principle of AUTO-LIMITATION:

Sovereignty is the property of the state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.

Definition of Government
1. That institution or aggregate of institutions

2. 3. 4. 5.

by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.

Classification of governments
1. De jure 2. De facto one established by the authority of the legitimate sovereign one established in defiance of the legitimate sovereign

Classification of de facto governments 1. De facto proper 1. That government that gets possession and control of 2. or usurps by force or by the voice of majority 3. the rightful legal government 4. and maintains itself against the will of the latter. 1. Government of paramount force 1. That which is established and maintained by military forces 2. who invade and occupy a territory of the enemy 3. in the course of war. 1. That established as an independent government by the inhabitants of a country who rise ininsurrection against the parent state.

Definition of Republican State

It is one wherein all government authority emanates from the people and is exercised by representatives chosen by the people.

Definition of Democratic State

This merely emphasizes that the Philippines has some aspects of direct democracy such as initiative and referendum. Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Kind of war renounced by the Philippines

The Philippines only renounces AGGRESSIVE war as an instrument of national policy. It does not renounce defensive war. Some generally accepted principles of international law recognized by the Court: 1. Right of an alien to be released on bail while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him ( Mejoff v. Director of Prisons, 90 Phil. 70) 2. The right of a country to establish military commissions to try war criminals ( Kuroda v. Jalondoni, 83 Phil. 171) 3. The Vienna Convention on Road Signs and Signals (Agustin v. Edu, 88 SCRA 195)

Amity with all nations

This does not mean automatic diplomatic recognition of all nations. Diplomatic recognition remains a matter of executive discretion.

Sec 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. Civilian authority/supremacy clause (1st sentence) 1. Civilian authority simply means the supremacy of the law because authority, under our constitutional system, can only come from law. 2. Under this clause, the soldier renounces political ambition.

Mark of sovereignty (2nd and 3rd sentences) 1. Positively, this clause singles out the military as the guardian of the people and of the integrity of the national territory and therefore ultimately of the majesty of the law. 2. Negatively, it is an expression of disapproval of military abuses.

Sec 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service. Sec. 5. The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. Sec. 6. The separation of Church and State shall be inviolable.
Selected state policies

Sec. 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. Sec. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.
Policy of freedom from nuclear weapons

1. The policy PROHIBITS: 1. The possession, control and manufacture of nuclear weapons 2. Nuclear arms tests. 1. The policy does NOT prohibit the peaceful uses of nuclear energy.

Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. etc. Principle that the family is not a creature of the state.
Protection for the unborn

1. It is not an assertion that the unborn is a legal person. 2. It is not an assertion that the life of the unborn is placed exactly on the level of the life of the mother. Hence, when it is necessary to save the life of the mother, the life of the unborn may be sacrificed. 3. Under this provision, the Roe v. Wade doctrine allowing abortion up to the 6 th month of pregnancy cannot be adopted in the Philippines because the life of the unborn is protected from the time of conception.

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

1. While the right to a balanced and healthful ecology is found under the declaration of Principle and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. (Oposa v. Factoran) 2. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. (Oposa v. Factoran)

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. Sec. 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. ARTICLE III BILL OF RIGHTS Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.

Definition of Police Power: 1) 2) 3) 4) 5) 6) 7) Power vested in the legislature By the Constitution To make, ordain, and establish All manner of wholesome and reasonable laws, statutes, and ordinances Either with penalties or without Not repugnant to the constitution As they shall judge to be for the good and welfare of the commonwealth and of the subjects

of the same. Aspects of Due Process: 1. Procedural due process refers to the mode of procedure which government agencies must follow in the enforcement and application of laws. 2. Substantive due process prohibition against arbitrary laws. Note: PROCEDURAL DUE PROCESS: 1. A law which hears before it condemns. 2. Due process of law contemplates notice and opportunity to be heard before judgment is rendered affecting ones person or property (Lopez v. Dir. of Lands) 3. Due process depends on circumstances; it varies with the subject matter and the necessities of the situation. Requisites of PROCEDURAL due process:
For JUDICIAL proceedings: CODE: C J N O H

1. A court or tribunal clothed with judicial power to hear and determine the matter before it. 2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings. 3. The defendant must be given notice and an opportunity to be heard. 4. Judgment must be rendered upon a lawful hearing.

For ADMINISTRATIVE proceedings: CODE: H E D S H I P 1. The right to a hearing, which includes the right to present ones case and submit evidence in support thereof.

2. 3. 4. 5.

The tribunal must consider the evidence presented. The decision must have something to support itself. Evidence supporting the conclusion must be substantial. The decision must be based on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected. 6. The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. 7. The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved and the reasons for the decision rendered.

Note: 1. What is required is not actual hearing, but a real opportunity to be heard. 2. The requirement of due process can be satisfied by subsequent due hearing. 3. Violation of due process: when same person reviews his own decision on appeal. 4. Notice and hearing are required in judicial and quasi-judicial proceedings, but not in the promulgation of general rule. For SCHOOL DISCIPLINARY proceedings: CODE: W A In A D P 1. The student must be informed in writing of the nature and cause of any accusation against them. 2. The student shall have the right to answer the charges against him, with the assistance of counsel if desired. 3. The student has the right to be informed of the evidence against him. 4. The student has the right to adduce evidence in his own behalf. 5. The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. 6. The penalty imposed must be proportionate to the offense. Note: 1. The school has a contractual obligation to afford its students a fair opportunity to complete the course a student has enrolled for. 2. Exceptions: 3. Serious breach of discipline; or 4. Failure to maintain the required academic standard. 5. Proceedings in student disciplinary cases may be summary; cross-examination is not essential Instances when hearings are NOT necessary: 1. When administrative agencies are exercising their quasi-legislative functions. 2. Abatement of nuisance per se. 3. Granting by courts of provisional remedies. 4. Cases of preventive suspension. 5. Removal of temporary employees in the government service. 6. Issuance of warrants of distraint and/or levy by the BIR Commissioner. 7. Cancellation of the passport of a person charged with a crime. 8. Issuance of sequestration orders (considered a provisional remedy). 9. Judicial order which prevents an accused from travelling abroad in order to maintain the effectivity of the courts jurisdiction. 10. Suspension of a banks operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank. Note: 1. The right to counsel is a very basic requirement of substantive due process and has to be observed even in administrative and quasi-judicial bodies. 2. The right to appeal is a statutory privilege that may be exercised only in the manner in accordance with law. Requisites of SUBSTANTIVE due process: CODE: I M 1. The INTERESTS of the public generally, as distinguished from those of a particular class, requires the interference by the government and

2. The MEANS employed are necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals.

Requirements of a valid ordinance: 1. Must not contravene the Constitution or any statute 2. Must not be unfair or oppressive 3. Must not be partial or discriminatory 4. Must not prohibit, but may regulate trade 5. Must be general and consistent with public policy 6. Must not be unreasonable
When is a law VAGUE?

1. When it lacks COMPREHENSIBLE STANDARDS 2. That men of ordinary intelligence must necessarily GUESS as to its meaning 3. And differ as to its application

Equal Protection of the law The equality that it guarantees is legal equality or the equality of all persons before the law. It does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.
Requisites for valid classification for purposes of the equal protection clause

The classification must: CODE: SGEE 1. Rest on SUBSTANTIAL DISTINCTIONS 2. Be GERMANE to the purposes of the law 3. Not limited to existing conditions only 4. APPLY EQUALLY to all members of the SAME CLASS. Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized. General Rule: Search and seizures are unreasonable unless authorized by a validly issued search warrant or warrant of arrest Requisites for a valid warrant: CODE: P J E D 1. It must be issued upon PROBABLE CAUSE. 2. The existence of probable cause is determined personally by the JUDGE. 3. The judge must EXAMINE UNDER OATH the complainant and the witnesses he may produce. 4. The warrant must PARTICULARLY DESCRIBE the place to be searched and person or things to be seized.
Definition of PROBABLE CAUSE

For the issuance of a warrant of arrest: Probable cause refers to such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. For the issuance of a search warrant: Probable cause would mean such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched.

Note: Probable cause for the issuance of a search warrant does NOT require that the probable guilt of a specific offender be established, unlike in the case of a warrant of arrest.
Existence of probable cause DETERMINED PERSONALLY BY THE JUDGE

The judge is NOT required to personally examine the complainant and his witnesses. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause (Soliven v. Makasiar, 167 SCRA 394). To be sure, the Judge must go beyond the prosecutors certification and investigation report whenever necessary (Lim v. Felix). Procedure: 1. The judge personally evaluates the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest or 2. If on the basis thereof, the judge finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at the conclusion as to the existence of probable cause. Examination UNDER OATH OR AFFIRMATION OF THE COMPLAINANT AND WITNESSES 1. The oath required must refer to the truth of the facts within the personal knowledge of the complainant or his witnesses because the purpose is to convince the judge of the existence of probable cause (Alvarez v. CFI, 64 Phil. 33). 2. The true test of sufficiency of an affidavit to warrant the issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for the damages caused (Alvarez v. CFI). PARTICULARITY OF DESCRIPTION (SEARCH WARRANT) 1. A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow or 2. When the description expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search and seizure or 3. When the things described are limited to those which bear a direct relation to the offense for which the warrant is being issued (Bache and Co. v. Ruiz, 37 SCRA 823). JOHN DOE WARRANT A John Doe warrant can satisfy the requirement of particularity of description if it contains a descriptio personae such as will enable the officer to identify the accused (People v. Veloso, 48 Phil. 159) GENERAL WARRANT A general warrant is one that does not allege any specific acts or omissions constituting the offense charged in the application for the issuance of the warrant. It contravenes the explicit demand of the Bill of Rights that the things to be seized be particularly described. VALID WARRANTLESS SEARCH 1. Search made as an incident to lawful arrest 1. An officer making an arrest may take from the person arrested: 1. Any money or property found upon his person which was used in the commission of the offense or 2. Was the fruit thereof or 3. Which might furnish the prisoner with the means of committing violence or escaping or 4. Which may be used in evidence in the trial of the case 1. The search must be made simultaneously with the arrest and it may only be made in the area within the reach of the person arrested 1. Search of moving vehicles 1. This exception is based on exigency. Thus, if there is time to obtain a warrant in order to search the vehicle, a warrant must first be obtained.

2. The search of a moving vehicle must be based on probable cause. 1. Seizure of goods concealed to avoid customs duties/authorized under the Tariffs and Customs Code 1. The Tariffs and Customs Code authorizes persons having police authority under the Code to effect search and seizures without a search warrant to enforce customs laws. 2. Exception: A search warrant is required for the search of a dwelling house. 3. Searches under this exception include searches at borders and ports of entry. Searches in these areas do not require the existence of probable cause. 1. Seizure of evidence in plain view 1. To be a valid warrantless search, the articles must be open to the eye and hand. 2. The peace officer comes upon them inadvertently. 1. Waiver of right 1. Requisites of a valid waiver: 1. The right exists. 2. The person had actual or constructive knowledge of the existence of such right. 3. There is an actual intention to relinquish such right. 1. The right against unreasonable searches and seizures is a personal right. Thus, only the person being searched can waive the same. 2. Waiver requires a positive act from the person. Mere absence of opposition is not a waiver. 3. The search made pursuant to the waiver must be made within the scope of the waiver.

Note: 1. Checkpoints: as long as the vehicle is neither searched nor its occupants subjected to a body search and the inspection of the vehicle is limited to a visual search = valid search ( Valmonte V. De Villa) 2. Carroll rule: warrantless search of a vehicle that can be quickly moved out of the locality or jurisdiction 3. The 1987 Constitution has returned to the 1935 rule that warrants may be issued only by judges, but the Commissioner of Immigration may order the arrest of an alien in order to carry out a FINAL deportation order. VALID WARRANTLESS ARRESTS 1. When the person to be arrested has committed, is actually committing, or is about to commit an offense in the presence of the arresting officer. 1. When an offense has in fact just been committed and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it. 1. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 1. Waiver of an invalid arrest: When a person who is detained applies for bail, he is deemed to have waived any irregularity which may have occurred in relation to his arrest.
1. Hot pursuit

A. The pursuit of the offender by the arresting officer must be continuous from the time of the commission of the offense to the time of the arrest. B. There must be no supervening event which breaks the continuity of the chase.
1. Stop and frisk

When a policeman observes suspicious activity which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect which is

unlicensed, he can arrest such person then and there for having committed an offense in the officers presence. Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceedings. R.A. 4200 (Anti-Wiretapping Act) 1. The law does not distinguish between a party to the private communication or a third person. Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200 (Ramirez v. Ca) 1. The use of a telephone extension to overhear a private conversation is not a violation of R.A. 4200 because it is not similar to any of the prohibited devices under the law. Also, a telephone extension is not purposely installed for the purpose of secretly intercepting or recording private communication. (Gaanan v. IAC, 145 SCRA 112) Types of communication protected: Letters, messages, telephone calls, telegrams and the like. Exclusionary rule: Any evidence obtained shall be inadmissible for any purpose in any proceeding. However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. ( People v. Martin) Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances. What are considered protected speech: Protected speech includes every form of expression, whether oral, written, tape or disc recorded. It includes motion pictures as well as what is known as symbolic speech such as the wearing of an armband as a symbol of protest. Peaceful picketing has also been included within the meaning of speech.
Prohibitions under Section 4

1. Prohibition against PRIOR RESTRAINT 1. Prohibition against SUBSEQUENT PUNISHMENT

Prohibition against prior restraint

1. Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. 2. Examples/forms of prior restraint 1. movie censorship 2. judicial prior restraint = injunction against publication 3. license taxes based on gross receipts for the privilege of engaging in the business of advertising in any newspaper 4. flat license fees for the privilege of selling religious books
When prohibition does not apply

1. During a war. Ex. Government can prevent publication about the number/locations of its troops (Near v. Minnesota, 238 US 697) 2. Obscene publications.

Standards for allowable subsequent punishment

TEST 1. Dangerous Tendency Test the speech and the evil apprehended. 2. Clear and Present Danger Test

CRITERION There should be a RATIONAL CONNECTION between

There should be a clear and present danger that the

words when used under such circumstances are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about the substantive evils that the State has a right to prevent. 3. Balancing of Interests Test The courts should BALANCE the PUBLIC INTEREST

served by legislation on one hand and the FREEDOM OF SPEECH (or any other constitutional right) on the other. The courts will then decide where the greater weight should be placed. Freedom of Speech The doctrine on freedom of speech was formulated primarily for the protection of core speech, i.e. speech which communicates political, social or religious ideas. These enjoy the same degree of protection. Commercial speech, however, does not.

Commercial Speech 1. A communication which no more than proposes a commercial transaction. 1. To enjoy protection: 1. It must not be false or misleading; and 2. It should not propose an illegal transaction. 1. Even truthful and lawful commercial speech may be regulated if: 1. Government has a substantial interest to protect; 2. The regulation directly advances that interest; and 3. It is not more extensive than is necessary to protect that interest. (Central Hudson Gas and Electric Corp. v. Public Service Commission of NY, 447 US 557) Unprotected Speech 1. 1. LIBEL 1. FAIR COMMENT (U.S. Rule). These are statements of OPINION, not of fact, and are not considered actionable, even if the words used are neither mild nor temperate. What is important is that the opinion is the true and honest opinion of the person. The statements are not used to attack personalities but to give ones opinion on decisions and actions. 1. OPINIONS. With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding their public actuations. Comment on their private lives, if not germane to their public personae, are not protected. 1. 2. OBSCENITY 1. Test for obscenity (Miller v. California) 1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct, specifically defined by law. 3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. 2. Procedure for seizure of allegedly obscene publications 1. Authorities must apply for issuance of search warrant. 2. Court must be convinced that the materials are obscene. Apply clear and present danger test. 3. Judge will determine whether they are in fact obscene. 4. Judge will issue a search warrant. 5. Proper action should be filed under Art. 201 of the RPC.

6. Conviction is subject to appeal. Right of Assembly and Petition 1. The standards for allowable impairment of speech and press also apply to the right of assembly and petition. 1. Rules on assembly in public places: 1. Applicant should inform the licensing authority of the date, the public place where and the time when the assembly will take place. 1. The application should be filed ahead of time to enable the public official concerned to appraise whether there are valid objections to the grant of the permit or to its grant, but in another public place. The grant or refusal should be based on the application of the Clear and Present Danger Test. 1. If the public authority is of the view that there is an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. 1. The decision of the public authority, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity so that they may, if they so desire, have recourse to the proper judicial authority. 1. Rules on assembly in private properties:

Only the consent of the owner of the property or person entitled to possession thereof is required. Section 5. 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.

Clauses under Section 5 1. Non-establishment clause 2. Free exercise of Religion Distinction between the clauses (School District v. Schempp, 374 US 203) 1. The non-establishment clause does not depend upon any showing of direct governmental compulsion. It is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. The test of compliance with the non-establishment clause can be stated as follows: What are the purposes and primary effect of the enactment? If either is the advancement or inhibition of religion, the law violates the non-establishment clause. Thus, in order for a law to comply with the non-establishment clause, two requisites must be met. First, it has a secular legislative purpose. Second, its primary effect neither advances nor inhibits religion. 1. The free exercise of religion clause withdraws from legislative power the exertion of any restraint on the free exercise of religion. In order to show a violation of this clause, the person affected must show the coercive effect of the legislation as it operates against him in the practice of his religion. While the freedom to believe (non-establishment) is absolute, the moment such belief flows over into action, it becomes subject to government regulation. Requisites for government aid to be allowable: 1. It must have a secular legislative purpose; 2. It must have a primary effect that neither advances nor inhibits religion; 3. It must not require excessive entanglement with recipient institutions. Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law.

Rights guaranteed under Section 6: 1. Freedom to choose and change ones place of abode. 2. Freedom to travel within the country and outside.

Curtailment of rights:
RIGHT 1. Liberty of abode by law. 2. Right to travel May be curtailed even by administrative officers (ex. MANNER OF CURTAILMENT Lawful order of the court and within the limits prescribed

passport officers) in the interest of national security, public safety, or public health, as may be provided by law. Note: The right to travel and the liberty of abode are distinct from the right to return to ones country, as shown by the fact that the Declaration of Human Rights and the Covenant on Human Rights have separate guarantees for these. Hence, the right to return to ones country is not covered by the specific right to travel and liberty of abode. (Marcos v. Manglapus) Section 7. The right of the people to information on matters of public concern shall be recognized.

Rights guaranteed under Section 7 1. Right to information on matters of public concern 2. Right of access to official records and documents Persons entitled to the above rights Only Filipino citizens.
Discretion of government

The government has discretion with respect to the authority to determine what matters are of public concern and the authority to determine the manner of access to them. Recognized restrictions on the right of the people to information: 1. National security matters 2. Intelligence information 3. Trade secrets 4. Banking transactions 5. Diplomatic correspondence 6. Executive sessions 7. Closed door cabinet meetings 8. Supreme Court deliberations Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law, shall not be abridged. The right to form associations shall not be impaired without due process of law and is thus an aspect of the right of liberty. It is also an aspect of the freedom of contract. In addition, insofar as the associations may have for their object the advancement of beliefs and ideas, the freedom

of association is an aspect of the freedom of speech and expression, subject to the same limitation. The right also covers the right not to join an association. Government employees have the right to form unions. They also have the right to strike, unless there is a statutory ban on them. Section 9. Private property shall not be taken for public use without just compensation. Who can exercise the power of eminent domain: 1) The national government
1. Congress 2. Executive, pursuant to legislation enacted by Congress

2)

Local government units, pursuant to an ordinance enacted by their respective legislative

bodies (under LGC) 3) Public utilities, as may be delegated by law.

When is the exercise of the power of eminent domain necessary?

It is only necessary when the owner does not want or opposes the sale of his property. Thus, if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract.
Elements of the power of eminent domain

1) 2) 3)

There is a TAKING of private property Taking is for PUBLIC USE Payment of JUST COMPENSATION

TAKING A. Elements: CODE: E P A P O 1. The expropriator enters the property 2. The entrance must not be for a momentary period, i.e., it must be permanent 3. Entry is made under warrant or color of legal authority 4. Property is devoted to public use 5. Utilization of the property must be in such a way as to oust the owner and deprive him of the beneficial enjoyment of his property. B. Compensable taking does not need to involve all the property interests which form part of the right of ownership. When one or more of the property rights are appropriated and applied to a public purpose, there is already a compensable taking, even if bare title still remains with the owner. PUBLIC USE 1. Public use, for purposes of expropriation, is synonymous with public welfare as the latter term is used in the concept of police power. 1. Examples of public use include land reform and socialized housing.

JUST COMPENSATION 1. Compensation is just if the owner receives a sum equivalent to the market value of his property. Market value is generally defined as the fair value of the property as between one who desires to purchase and one who desires to sell. 2. The point of reference use in determining fair value is the value at the time the property was taken. Thus, future potential use of the land is not considered in computing just compensation. Judicial review of the exercise of the power of eminent domain 1. To determine the adequacy of the compensation 2. To determine the necessity of the taking 3. To determine the public use character of the taking. However, if the expropriation is pursuant to a specific law passed by Congress, the courts cannot question the public use character of the taking. When municipal property is taken by the State: Compensation is required if the property is a patrimonial property, that is, property acquired by the municipality with its private funds in its corporate or private capacity. However, if it is any other property such a public buildings or legua comunal held by the municipality for the State in trust for the inhabitants, the State is free to dispose of it at will. Point of reference for valuating a piece of property: General rule: The value must be that as of the time of the filing of the complaint for expropriation. Exception: When the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. BUT if the value increased independently of what the expropriator did, then the value is that of the latter filing of the case. Section 10. No law impairing the obligation of contracts shall be passed. When does a law impair the obligation of contracts: 1) If it changes the terms and conditions of a legal contract either as to the time or mode of

performance 2) 3) If it imposes new conditions or dispenses with those expressed If it authorizes for its satisfaction something different from that provided in its terms.

A mere change in PROCEDURAL REMEDIES which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts. A valid exercise of police power is superior to obligation of contracts. Section 12. Rights of person under investigation for the commission of an offense. Rights of person under investigation for the Commission of an offense CODE: SCISI 1) Right to remain silent 2) 3) Right to have competent and independent counsel, preferably of his own choice Right to provided with the services of counsel if he cannot afford the services of one.

4) Right to be informed of these rights. When rights are available: 1) AFTER a person has been taken into custody or

2)

When a person is otherwise deprived of his freedom of action in any significant way.

3) When the investigation is being conducted by the government (police, DOJ, NBI) with respect to a criminal offense. 4) Signing of arrest reports and booking sheets.

When rights are not available: 1) During a police line-up. Exception: Once there is a move among the investigators to elicit admissions or confessions from the suspect. 2) 3) During administrative investigations. Confessions made by an accused at the time he voluntarily surrendered to the police or

outside the context of a formal investigation. 4) Statements made to a private person.

Exclusionary rule

1)

Any confession or admission obtained in violation of this section shall be inadmissible in

evidence against him (the accused). 2) Therefore, any evidence obtained by virtue of an illegally obtained confession is also

inadmissible, being the fruit of a poisoned tree. Requisites of valid waiver: 1) 2) Waiver should be made in WRITING Waiver should be made in the PRESENCE OF COUNSEL.

Section 13. Right to bail Who are entitled to bail: 1) 2) 3) All persons ACTUALLY DETAINED shall, BEFORE CONVICTION Be entitled to bail.

Who are not entitled to bail: 1) Persons charged with offenses PUNISHABLE by RECLUSION PERPETUA or DEATH, when evidence of guilt is strong 2) 3) Persons CONVICTED by the trial court. Bail is only discretionary pending appeal. Persons who are members of the AFP facing a court martial.

Other rights in relation to bail. 1) The right to bail shall NOT be impaired even when the privilege of the writ of habeas corpus

is suspended.

2)

Excessive bail shall not be required.

Factors considered in setting the amount of bail: 1) 2) 3) 4) 5) 6) 7) 8) 9) Ability to post bail Nature of the offense Penalty imposed by law Character and reputation of the accused Health of the accused Strength of the evidence Probability of appearing at the trial Forfeiture of previous bail bonds Whether accused was a fugitive from justice when arrested

10) If accused is under bond in other cases Implicit limitations on the right to bail: 1. The person claiming the right must be in actual detention or custody of the law. 2. The constitutional right is available only in criminal cases, not, e.g. in deportation proceedings. Note: 1. Right to bail is not available in the military. 2. Apart from bail, a person may attain provisional liberty through recognizance. Section 14. Rights of an accused Rights of a person charged with a criminal offense 1. Right to due process of law 2. Right to be presumed innocent 3. Right to be heard by himself and counsel 4. Right to be informed of the nature and cause of the accusation against him 5. Right to have a speedy, impartial and public trial 6. Right to meet the witnesses face to face 7. Right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf DUE PROCESS This means that the accused can only be convicted by a tribunal which is required to comply with the stringent requirements of the rules of criminal procedure. PRESUMPTION OF INNOCENCE The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the ultimate fact presumed. Presumption of guilt should not be conclusive.

RIGHT TO BE HEARD BY HIMSELF AND COUNSEL The right to be heard includes the following rights: 1. Right to be present at the trial 1. The right to be present covers the period from ARRAIGNMENT to PROMULGATION of sentence. 1. After arraignment, trial may proceed notwithstanding absence of accused, provided 2 requisites are met. Note, that trial in absentia is allowed only if the accused has been validly arraigned. (i) (ii) Accused has been duly notified; and His failure to appear is unjustifiable.

1. The accused may waive the right to be present at the trial by not showing up. However, the court can still compel the attendance of the accused if necessary for identification purposes. Exception: If the accused, after arraignment, has stipulated that he is indeed the person charged with the offense and named in the information, and that any time a witness refers to a name by which he is known, the witness is to be understood as referring to him. 1. While the accused is entitled to be present during promulgation of judgement, the absence of his counsel during such promulgation does not affect its validity.

2. Right to counsel (a) Right to counsel means the right to EFFECTIVE REPRESENTATION.

(b) If the accused appears at arraignment without counsel, the judge must: (i) Inform the accused that he has a right to a counsel before arraignment

(ii) Ask the accused if he desires the aid of counsel (iii) If the accused desires counsel, but cannot afford one, a counsel de oficio must be appointed (iv) If the accused desires to obtain his own counsel, the court must give him a reasonable time to get one. 3. Right to an impartial judge 4. Right of confrontation and cross-examination 5. Right to compulsory process to secure the attendance of witnesses RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM Purposes of the right: 1) To furnish the accused with a description of the charge against him as will enable him to

make his defenses 2) cause 3) To inform the court of the facts alleged. To avail himself of his conviction or acquittal against a further prosecution for the same

If the information fails to allege the material elements of the offense, the accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements.

The real nature of the crime charged is determined from the recital of facts in the information. It is not determined based on the caption or preamble thereof nor from the specification of the provision of law allegedly violated RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL Factors used in determining whether the right to a speedy trial has been violated. 1) 2) 3) 4) 5) Time expired from the filing of the information Length of delay involved Reasons for the delay Assertion or non-assertion of the right by the accused Prejudice caused to the defendant.

Effect of dismissal based on the ground of violation of the accuseds right to speedy trial If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused Remedy of the accused if his right to speedy trial has been violated He can move for the dismissal of the case. If he is detained, he can file a petition for the issuance of writ of habeas corpus. Definition of impartial trial The accused is entitled to the cold neutrality of an impartial judge. It is an element of due process. Definition of public trial The attendance at the trial is open to all irrespective of their relationship to the accused. However, if the evidence to be adduced is offensive to decency or public morals, the public may be excluded. The right of the accused to a public trial is not violated if the hearings are conducted on Saturdays, either with the consent of the accused or if failed to object thereto.

RIGHT TO MEET WITNESS FACE TO FACE Purposes of the right: 1. To afford the accused an opportunity to cross-examine the witness 2. To allow the judge the opportunity to observe the deportment of the witness Failure of the accused to cross-examine a witness If the failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should be excluded. When the right to cross-examine is demandable

It is demandable only during trials. Thus, it cannot be availed of during preliminary investigations.
Principal exceptions to the right of confrontation

1. The admissibility of dying declarations 2. Trial in absentia under Section 14(2) 3. With respect to child testimony

Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.
Distinction between Section 14 and Section 16

While the rights of an accused only apply to the trial phase of criminal cases, the right to a speedy disposition of cases covers ALL phases of JUDICIAL, QUASI-JUDICIAL or ADMINISTRATIVE proceedings. Section 17. No person shall be compelled to be a witness against himself. When is a question incriminating: A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness. Distinction between an accused and an ordinary witness 1. An accused can refuse to take the witness stand by invoking the right against self -incrimination. 2. An ordinary witness cannot refuse to take the stand. He can only refuse to answer specific questions which would incriminate him in the commission of an offense. Scope of right 1. What is PROHIBITED is the use of physical or moral compulsion to extort communication from the witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from the witness. 2. The right does NOT PROHIBIT the examination of the body of the accused or the use of findings with respect to his body as physical evidence. Hence, the fingerprinting of an accused would not violate the right against self-incrimination. However, obtaining a sample of the handwriting of the accused would violate this right if he is charged for falsification. 3. The accused cannot be compelled to produce a private document in his possession which might tend to incriminate him. However, a third person in custody of the document may be compelled to produce it. When the right can be invoked: 1. In criminal cases 2. In administrative proceedings if the accused is liable to a penalty (Ex. Forfeiture of property) Who can invoke the right: Only natural persons. Judicial persons are subject to the visitorial powers of the state in order to determine compliance with the conditions of the charter granted to them. Section 18. Right against involuntary servitude Definition of involuntary servitude It is every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised.

Exceptions: 1. Punishment for a crime for which the party has been duly convicted 2. Personal military or civil service in the interest of national defense 3. Return to work order issued by the DOLE Secretary or the President Section 19. Prohibition against cruel, degrading and inhuman punishment When is a penalty cruel, degrading and inhuman? 1. A penalty is cruel and inhuman if it involves torture or lingering suffering. Ex. Being drawn and quartered. 2. A penalty is degrading if it exposes a person to public humiliation. Ex. Being tarred and feathered, then paraded throughout town. Standards used: 1. The punishment must not be so severe as to be degrading to the dignity of human beings. 2. It must not be applied arbitrarily. 3. It must not be unacceptable to contemporary society 4. It must not be excessive, i.e. it must serve a penal purpose more effectively than a less severe punishment would. Excessive fine A fine is excessive, when under any circumstance, it is disproportionate to the offense. Note: Fr. Bernas says that the accused cannot be convicted of the crime to which the punishment is attached if the court finds that the punishment is cruel, degrading or inhuman. Reason: Without a valid penalty, the law is not a penal law. Section 20. No person shall be imprisoned for debt or non-payment of a poll tax. Definition of debt under Section 20 1) Debt refers to a CONTRACTUAL obligation, whether express or implied, resulting in any liability to pay money. Thus, all other types of obligations are not within the scope of this prohibition. 2) Thus, if an accused fails to pay the fine imposed upon him, this may result in his subsidiary

imprisonment because his liability is ex delicto and not ex contractu. 3) A FRAUDULENT debt may result in the imprisonment of the debtor if:
1. The fraudulent debt constitutes a crime such as estafa and 2. The accused has been duly convicted.

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
Requisites for a valid defense of double jeopardy: CODE: ATS

1) 2)

First jeopardy must have attached prior to the second. The first jeopardy must have terminated.

3) The second jeopardy must be for the same offense as that in the first. When does jeopardy ATTACH: (1st requisite) CODE: CICAV 1) 2) A person is charged Under a complaint or information sufficient in form and substance to sustain a conviction

3) 4) 5)

Before a court of competent jurisdiction After the person is arraigned Such person enters a valid plea.

When does jeopardy NOT attach: 1) If information does not charge any offense

2) If, upon pleading guilty, the accused presents evidence of complete self-defense, and the court thereafter acquits him without entering a new plea of not guilty for accused. 3) 4) If the information for an offense cognizable by the RTC is filed with the MTC. If a complaint filed for preliminary investigation is dismissed.

When does first jeopardy TERMINATE: (2ND REQUISITE) 1) 2) 3) 4) Acquittal Conviction Dismissal W/O the EXPRESS consent of the accused Dismissal on the merits.

Examples of termination of jeopardy: 1) 2) Dismissal based on violation of the right to a speedy trial. This amounts to an acquittal. Dismissal based on a demurrer to evidence. This is a dismissal on the merits.

3) Dismissal on motion of the prosecution, subsequent to a motion for reinvestigation filed by the accused. 4) Discharge of an accused to be a state witness. This amounts to an acquittal.

When can the PROSECUTION appeal from an order of dismissal: 1) If dismissal is on motion of the accused. Exception: If motion is based on violation of the right to a speedy trial or on a demurrer to evidence. 2) 3) 4) 5) If dismissal does NOT amount to an acquittal or dismissal on the merits If the question to be passed upon is purely legal. If the dismissal violates the right of due process of the prosecution. If the dismissal was made with grave abuse of discretion.

What are considered to be the SAME OFFENSE: (under the 1st sentence of Section 21) 1) 2) Exact identity between the offenses charged in the first and second cases. One offense is an attempt to commit or a frustration of the other offense.

3)

One offense is necessarily included or necessary includes the other.

Note: where a single act results in the violation of different laws or different provisions of the same law, the prosecution for one will not bar the other so long as none of the exceptions apply. Definition of double jeopardy (2nd sentence of Sec. 21) Double jeopardy will result if the act punishable under the law and the ordinance are the same. For there to be double jeopardy, it is not necessary that the offense be the same. SUPERVENING FACTS 1) Under the Rules of Court, a conviction for an offense will not bar a prosecution for an offense which necessarily includes the offense charged in the former information where:
1. The graver offense developed due to a supervening fact arising from the same act or omission constituting the former charge. 2. The facts constituting the graver offense became known or were discovered only after the filing of the former information. 3. The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended party.

2) Under (1)(b), if the facts could have been discovered by the prosecution but were not discovered because of the prosecutions incompetence, it would not be considered a supervening event. Effect of appeal by the accused: If the accused appeals his conviction, he WAIVES his right to plead double jeopardy. The whole case will be open to review by the appellate court. Such court may even increase the penalties imposed on the accused by the trial court. Section 22. No ex post facto law or bill of attainder shall be enacted. Definition of ex-post facto law. 1) One which makes an action done before the passing of the law, and which was innocent

when done, criminal, and punishes such action. 2) One which aggravates the crime or makes it greater than when it was committed.

3) One which changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed. 4) One which alters the legal rules of evidence and receives less testimony than the law required at the time of the commission of the offense in order to convict the accused. 5) One which assumes to regulate civil rights and remedies only BUT, in effect, imposes a penalty or deprivation of a right, which, when done, was lawful. 6) One which deprives a person accused of a crime of some lawful protection to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty. Note: The prohibition on ex post facto laws only applies to retrospective PENAL laws.

Definition of BILL OF ATTAINDER 1) 2) A bill of attainder is a LEGISLATIVE act which inflicts punishment W/O JUDICIAL trial. The bill of attainder does not need to be directed at a specifically named person. It may

also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial. 3) Elements of the bill of attainder
1. There must be a LAW. 2. The law imposes a PENAL burden on a NAMED INVIDIDUAL/EASILY ASCERTAINABLE MEMBERS of a GROUP. 3. The penal burden is imposed DIRECTLY by the LAW W/O JUDICIAL trial.

ARTICLE VI THE LEGISLATIVE DEPARTMENT

Sec. 1. The legislative power shall be vested in the Congress of the Philippines, which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. Definition of Legislative Power: The authority to make laws and to alter or repeal them. Classification of legislative power: (O De CO) 1. Original Possessed by the people in their sovereign capacity 2. Delegated Possessed by Congress and other legislative bodies by virtue of the Constitution 3. Constituent The power to amend or revise the Constitution 4. Ordinary The power to pass ordinary laws Note: The original legislative power of the people is exercised via initiative and referendum. In this manner, people can directly propose and enact laws, or approve or reject any act or law passed by Congress or a local government unit.

Limits on the legislative power of Congress: 1. Substantive limitations on the content of laws. E.g. no law shall be passed establishing a state religion. 1. Procedural limitations on the manner of passing laws. E.g. generally a bill must go through three readings on three separate days. Note: Provided that these two limitations are not exceeded, Congress legislative power is plenary.

Corollaries of legislative power:

1. Congress cannot pass irrepealable laws. Since Congress powers are plenary, and limited only by the Constitution, any attempt to limit the powers of future Congresses via an irrepealable law is not allowed. 1. Congress, as a general rule, cannot delegate its legislative power. Since the people have already delegated legislative power to Congress, the latter cannot delegate it any further.

EXCEPTIONS: 1. Delegation of legislative power to local government units; 2. Instances when the Constitution itself allows for such delegation [see Art. VI Sec. 23(2)] What may Congress delegate: Congress can only delegate, usually to administrative agencies, RULE-MAKING POWER or LAW EXECUTION. This involves either of two tasks for the administrative agencies:
1. Filling up the details on an otherwise complete statute; or 2. Ascertaining the facts necessary to bring a contingent law or provision into actual operation.
Sections 2-4. SENATE

Composition
24 senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

Qualifications
1. 2. 3. 4. 5. Natural-born citizen; At least 35 years old on the day of election; Able to read and write; A registered voter; and Philippine resident for at least 2 years immediately preceding the day of the election.

Note: The qualifications of both Senators and Members of the House are limited to those provided by the Constitution. Congress cannot, by law, add or subtract from these qualifications.

Term of Office:
6 years, commencing (unless otherwise provided by law) at noon, 30 June next following their election. Term Limitations: 1. No Senator shall serve for more than 2 consecutive terms. 2. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.
Sections 5-7. HOUSE OF REPRESENTATIVES

Composition:
1. Not more than 25 members, unless otherwise fixed by law; and 2. Party-list Representative

Election of 250 members 1. They shall be elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area. 2. Legislative districts are apportioned in accordance with the number of inhabitants of each area and on the basis of a uniform and progressive ratio. 1. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory; 2. Each city with at least 250,000 inhabitants will be entitled to at least one representative. 3. Each province will have at least one representative.

4. Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census. According to Jack, however, while the apportionment of districts is NOT a political question, the judiciary CANNOT compel Congress to do this. 5. The standards used to determine the apportionment of legislative districts is meant to prevent gerrymandering, which is the formation of a legislative district out of separate territories so as to favor a particular candidate or party.

Qualifications 1. Natural born citizen of the Philippines; 2. At least 25 years old on the day of the election; 3. Able to read and write; 4. Registered voter in the district he seeks to represent; and 5. A resident of such district for at least one year immediately preceding the day of the election. Term of Office 1. Each member of the House shall be elected for a term of three (3) years which shall commence (unless otherwise provided for by law) at noon on 30 June next following their election. 2. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Term Limitations No member of the House of Representatives shall serve for more than three (3) consecutive terms. Distinctions between Term and Tenure 1. Definition 1. Terms means the period during which the elected officer is legally authorized to assume his office and exercise the powers thereof. 2. Tenure is the actual period during which such officer actually holds his position. 1. Limitation/Possible Reduction 1. Term CANNOT be reduced. 2. Tenure MAY, by law, be limited. Thus, a provision which considers an elective office automatically vacated when the holder thereof files a certificate of candidacy for another elective office (except President and Vice-President) is valid, as it only affects the officers tenure and NOT his constitutional term. Party-List Representatives 1. Constitute 20% of the total number of representatives, including those under the party-list system (thus a maximum of 50 party-list members of the House) 1. However, for 3 consecutive terms from 2 February 1987 (i.e., the 1987-92, 92-95 and 95-98 terms), 25 seats shall be allotted to sectoral representatives. Under Art. XVIII, Sec. 7, the sectoral representatives are to be appointed by the President until legislation otherwise provides. 1. Mechanics of the party-list system: 1. Registered organizations submit a list of candidates in order of priority. 2. During the elections, these organizations are voted for at large. 3. The number of seats that each organization gets out of the 20% allotted to the system depends on the number of votes they get. 1. Qualifications 1. Natural born citizen of the Philippines 2. At least 25 years of age on the day of the election 3. Able to read and write Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. Sec. 10. Salaries of Senators and Members of the House Determination of Salaries:

Salaries of Senators and Members of the House of Representatives shall be determined by law. Rule on increase in salaries: No increase in their salaries shall take effect until after the EXPIRATION OF THE FULL TERM (NOT TENURE) OF ALL THE MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES APPROVING SUCH INCREASE. Note: Since the Constitution provides for rules on salaries and not on emoluments, our distinguished legislators can appropriate for themselves other sums of money such as travel allowances, as well as other side benefits. Sec. 11: CONGRESSIONAL IMMUNITIES 1.) Immunity from arrest: 1. Legislators are privileged from arrest while Congress is in session with respect to offenses punishable by up to 6 years of imprisonment. Thus, whether Congress is in regular or special session, the immunity from arrest applies. 2. If Congress is in recess, members thereof may be arrested. 3. The immunity is only with respect to arrests and NOT to prosecution for criminal offenses. 2.) Legislative privilege: 1. No member shall be questioned or held liable in any forum other than his/her respective Congressional body for any debate or speech in the Congress or in any Committee thereof. 1. Limitation on the privilege: (i) Protection is only against forum other than Congress itself. Thus for inflammatory remarks which are otherwise privileged, a member may be sanctioned by either the Senate or the House as the case may be. (ii) The speech or debate must be made in performance of their duties as members of

Congress. This includes speeches delivered, statements made, votes cast, as well as bills introduced, and other activities done in performance of their official duties. (iii) Congress need NOT be in session when the utterance is made, as long as it forms part of legislative action, i.e. part of the deliberative and communicative process used to participate in legislative proceedings in consideration of proposed legislation or with respect to other matters with Congress jurisdiction. Sec. 12. All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.

ARTICLE VII. THE EXECUTIVE DEPARTMENT Section 1. EXECUTIVE POWER Scope: 1) Executive power is vested in the President of the Philippines.

2)

The scope of this power is set forth in Art. VII of the Constitution. But this power is not

limited to those set forth therein. The SC, in Marcos v. Manglapus, referred to the RESIDUAL powers of the President as the Chief Executive of the country, which powers include others not set forth in the Constitution. EXAMPLE: The President is immune from suit and criminal prosecution while he is in office. 3) Privilege of immunity from suit is personal to the President and may be invoked by him alone. It may also be waived by the President, as when he himself files suit. 4) BUT The President CANNOT dispose of state property unless authorized by law.

ections 14-16. POWER TO APPOINT Principles: 1) Since the power to appoint is executive in nature, Congress cannot usurp this function.

2) While Congress (and the Constitution in certain cases) may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the Presidents prerogative. Scope: The President shall appoint the following: 1) 2) 3) Heads of executive departments (CA confirmation needed): Ambassadors, other public ministers, and consuls (CA confirmation needed). Officers of AFP from rank of colonel or naval captain (CA confirmation needed).

4) Other officers whose appointment is vested in him by the Constitution (CA confirmation needed), such as: a) b) c) d)

Chairmen and members of the COMELEC, COA and CSC. Regular members of the Judicial and Bar Council. The Ombudsman and his deputies; Sectoral representatives in Congress.
N.B. President also appoints members of the Supreme Court and judges of the lower courts, but these appointments do not need CA confirmation.

5) All other officers whose appointments are not otherwise provided for by law; and those whom he may be authorized by law to appoint. a) This includes the Chairman and members of the Commission on Human Rights, whose appointments are provided for by law NOT by the Constitution. b) Congress may, by law, vest the appointment of other officers lower in rank in the President alone or in the courts, or in the heads of departments, agencies, boards or commissions.

c)

BUT: Congress cannot, by law, require CA confirmation of the appointment of other officers

for offices created subsequent to the 1987 Constitution (e.g. NLRC Commissioners, Bangko Sentral Governor). d) ALSO: Voluntary submission by the President to the CA for confirmation of an appointment which is not required to be confirmed does not vest the CA with jurisdiction. The President cannot extend the scope of the CAs power as provided for in the Constitution. Procedure: 1) a) b) c) d) CA confirmation needed: Nomination by President Confirmation by CA Appointment by President; and Acceptance by appointee.

Note: At any time before all four steps have been complied with, the President can withdraw the nomination/appointment. 2) a) b) No CA confirmation: Appointment; and Acceptance.

Note: Once appointee accepts, President can no longer withdraw the appointment. Ad-interim appointments: 1) When Congress is in recess, the President may still appoint officers to positions subject to CA confirmation. 2) These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress. 3) Appointments to fill an office in an acting capacity are NOT ad-interim in nature and need no CA approval. Appointments by an Acting President: These shall remain effective UNLESS revoked by the elected President within 90 days from his assumption or re-assumption of office. Limitation 1) 2 months immediately before the next Presidential elections, and up to the end of his term, the President or Acting President SHALL NOT make appointments. This is to prevent the practice of midnight appointments. 2) a) b) EXCEPTION: Can make TEMPORARY APPOINTMENTS To fill EXECUTIVE POSITIONS;

c)

If continued vacancies therein will prejudice public service or endanger public safety.

Section 17. Power of Control and Supervision Power of Control: The power of an officer to alter, modify, or set aside what a subordinate officer has done in the performance of his duties, and to substitute the judgment of the officer for that of his subordinate. Thus, the President exercises control over all the executive departments, bureaus, and offices. The Presidents power over government-owned corporations comes not from the Constitution but from statute. Hence, it may be taken away by statute. Qualified Political Agency: 1) Since all executive and administrative organizations are adjuncts of the Executive

Department, the heads of such departments, etc. are assistants and agents of the President. 2) Thus, generally the acts of these department heads, etc, which are performed and

promulgated in the regular course of business, are presumptively the acts of the President. 3) Exception: If the acts are disapproved or reprobated by the President.

4) Under Administrative Law, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies. 5) Qualified political agency does NOT apply if the President is required to act in person by law or by the Constitution. Example: The power to grant pardons must be exercised personally by the President. Disciplinary Powers: 1) The power of the President to discipline officers flows from the power to appoint the, and NOT from the power control. 2) BUT While the President may remove from office those who are not entitled to security of tenure, or those officers with no set terms, such as Department Heads, the officers, and employees entitled to security of tenure cannot be summarily removed from office. Power of Supervision: 1) This is the power of a superior officer to ensure that the laws are faithfully executed by subordinates. 2) The power of the president over local government units is only of general supervision. Thus, he can only interfere with the actions of their executive heads if these are contrary to law. 3) The execution of laws is an OBLIGATION of the President. He cannot suspend the operation of laws. 4) The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. Section 18. COMMANDER-IN-CHIEF POWERS

Scope: 1) 2) a) b) c) 3) a) b) The President is the Commander-in-Chief of the Armed Forces. Whenever necessary, the President may call out the AFP to PREVENT or SUPPRESS: Lawless violence; Invasion; or Rebellion. The President may also: Suspend the privilege of the writ of habeas corpus; and Proclaim a state of martial law.

Suspension of the privilege of the writ of habeas corpus and declaring martial law; 1. Grounds 1. Invasion or 2. Rebellion; and 3. Public safety requires it. 1. The invasion or rebellion must be ACTUAL and not merely imminent. 1. Limitations: 1. Suspension or proclamation is effective for only 60 days. 1. Within 48 hours from the declaration or suspension, the President must submit a report to Congress. 1. Congress, by majority vote and voting jointly, may revoke the same, and the President cannot set aside the revocation. 1. In the same manner, at the Presidents initiative, Congress can extend the same for a period determined by Congress if: i. Invasion or rebellion persist and ii. Public safety requires it. NOTE: Congress CANNOT extend the period motu propio.
1. Supreme Court review:

i. The appropriate proceeding can be filed by any citizen. ii. The SC can review the FACTUAL BASIS of the proclamation or suspension. iii. Decision is promulgated within 30 days from filing.
1. f. Martial Law does NOT:

i. Suspend the operation of the Constitution. ii. Supplant the functioning of the civil courts or legislative assemblies. iii. Authorize conferment of jurisdiction on military courts over civilians where civil courts are able to function and

iv. Automatically suspend the privilege of the writ.

1. Suspension of privilege of the writ:

i. Applies ONLY to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. ii. Anyone arrested or detained during suspension must be charged within 3 days. Otherwise he should be released. Note: While the suspension of the privilege of writ and the proclamation of martial law is subject to judicial review, the actual use by the President of the armed forces is not. Thus, troop deployments in times of war is subject to the Presidents judgment and discretion. Section 19: EXECUTIVE CLEMENCY Scope: 1.) 1. 2. 3. 4. 2.) 3.) 4.) The President may grant the following: [ Pa R C Re] Pardons (conditional or plenary) Reprieves Commutations Remittance of fines and forfeitures These may only be granted AFTER conviction by final judgment. ALSO: The power to grant clemency includes cases involving administrative penalties. Where a conditional pardon is granted, the determination of whether it has been violated

rests with the President. Limitations: 1.) As to scope:

Cannot be granted: a.) b.) Before conviction In cases of impeachment

c.) For violations of election laws, rules, and regulation without the favorable recommendation of the COMELEC d.) 2.) a.) b.) In cases of civil or legislative contempt As to effect: Does not absolve civil liabilities for an offense. Does not restore public offices already forfeited, although eligibility for the same may be

restored. Amnesty: 1.) An act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself.

2.)

President alone CANNOT grant amnesty. Amnesty needs concurrence by a majority of all the

members of Congress. 3.) When a person applies for amnesty, he must admit his guilt of the offense which is subject to

such amnesty. If his application is denied, he can be convicted based on this admission of guilt. 4.) Amnesty V. Pardon AMNESTY PARDON

Addressed to POLITICAL offenses Granted to a CLASS of persons Need not be accepted

Addressed to ORDINARY offenses Granted to INDIVIDUALS Must be accepted

Requires concurrence of majority of all members of Congress No need for Congressional concurrence A public act. Subject to judicial notice Private act of President. It must be proved. Only penalties are extinguished.
May or may not restore political rights. Absolute pardon restores. Conditional does not. Civil indemnity is not extinguished.

Extinguishes the offense itself May be granted before or after conviction

Only granted after conviction by final judgement

Section 20. Power to Contract or Guarantee Foreign Loans Limitations: (1) The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board; and (2) Subject to such limitations as may be provided by law. Section 21. Foreign Relations Powers include: (1) Power to negotiate treaties and other international agreements (a) BUT: Such treaty of international agreement must be concurred in by at least 2/3 of all Senators in order to be valid and effective in our country. (b) Options of Senate when a treaty is submitted for its approval: (i) (ii) (iii) Approve with 2/3 majority; Disapprove outright; or Approve conditionally, with suggested amendments.

(c) If treaty is not re-negotiated, no treaty

(d) If treaty is re-negotiated and the Senates suggestions are incorporated, the treaty will go into effect without need of further Senate approval. Note: While our municipal law makes a distinction between international agreements and executive agreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction. Note: The President cannot, by executive agreement, undertake an obligation which indirectly circumvents a legal prohibition. (e) Conflict between treaty and municipal law. (i) Philippine court: The later enactment will prevail, be it treaty or law, as it is the latest expression of the States will. (ii) International tribunal Treaty will always prevail. A State cannot plead its municipal law to justify noncompliance with an international obligation. (2) Power to appoint ambassadors, other public ministers, and consuls. (3) Power to receive ambassadors and other public ministers accredited to the Philippines. (4) Power to contract and guarantee foreign loans on behalf of the Republic (5) Power to deport aliens (a) This power is vested in the President by virtue of his office, subject only to restrictions as

may be provided by legislation as regards the grounds for deportation. (b) In the absence of any legislative restriction to authority, the President may still exercise this power. (c) The power to deport aliens is limited by the requirements of due process, which entitles the

alien to a full and fair hearing. BUT: The alien is not entitled to bail as a matter of right.

ARTICLE VIII. THE JUDICIAL DEPARTMENT

Sec. 1. JUDICIAL POWER Scope: 1. Judicial power is the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights. 2. Vested in the Supreme Court and such lower courts as may be established by law.

3. Since the courts are given judicial power and nothing more, courts may neither attempt to assume or be compelled to perform non-judicial functions. They may not be charged with administrative functions except when reasonably incidental to the fulfillment of their duties. 4. In order that courts may exercise this power, there must exist the following:
1. An actual controversy with legally demandable and enforceable rights; 2. Involving real parties in interest; 3. The exercise of such power will bind the parties by virtue of the courts application of existing laws.

5. Judicial power cannot be exercised in vacuum. Without any laws from which rights arise and which are violated, there can be no recourse to the courts. 6. The courts cannot be asked for advisory opinions. 7. Judicial power includes:
1. The duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable; and 1. To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Political Questions: 1. A political question is one the resolution of which has been vested by the Constitution exclusively in either the people, in the exercise of their sovereign capacity, or in which full discretionary authority has been delegated to a co-equal branch of the Government. 2. Thus, while courts can determine questions of legality with respect to governmental action, they cannot review government policy and the wisdom thereof, for these questions have been vested by the Constitution in the Executive and Legislative Departments. Sec. 2. ROLES OF CONGRESS 1. Defining enforceable and demandable rights and prescribing remedies for violations of such rights; and 2. Determining the court with jurisdiction to hear and decide controversies or disputes arising from legal rights. 3. Thus, Congress has the power to define, prescribe and apportion the jurisdiction of various courts.
1. BUT, Congress cannot deprive the Supreme Court of its jurisdiction over cases provided for in the Constitution. 2. Creation and abolition of courts: 1. The power to create courts implies the power to abolish and even re-organize courts. 2. BUT this power cannot be exercised in a manner which would undermine the security of tenure of the judiciary. 3. If the abolition/re-organization is done in good faith and not for political or personal reasons, then it is VALID. (same rule applies for civil servants)

Sec. 3. FISCAL AUTONOMY 1. The entire judiciary shall enjoy fiscal autonomy. 2. Annual appropriations for the judiciary cannot be reduced below the amount appropriated for the previous year. 3. Once approved, appropriations shall be automatically and regularly released. Secs. 4-7; 12 JUDICIARY Composition of the Supreme Court: 1. Chief Justice and 2. 14 Associate Justices Note: Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

ARTICLE XVI GENERAL PROVISIONS

Sections 1-2. Symbols of Nationality 1) Flag

Red, white, and blue. With a sun and 3 stars The design may be changed by constitutional amendment.

2) Congress may, by law, adopt a new: (a) Name for the country, (b) National anthem, or (c) National seal. Note: Law will take effect upon ratification by the people in a NATIONAL REFERENDUM. Section 3. State Immunity Suability of State 1) The State cannot be sued without its consent. 2) When considered a suit against the State a). The Republic is sued by name; b). Suits against an un-incorporated government agency; c). Suit is against a government official, but is such that ultimate liability shall devolve on the government i. When a public officer acts in bad faith, or beyond the scope of his authority, he can be held personally liable for damages.

ii. BUT: If he acted pursuant to his official duties, without malice, negligence, or bad faith, they are not personally liable, and the suit is really one against the State. 3) This rule applies not only in favor of the Philippines but also in favor of foreign states. 4) The rule likewise prohibits a person from filing for interpleader, with the State as one of the defendants being compelled to interplead. Consent to be sued A. Express consent: 1). The law expressly grants the authority to sue the State or any of its agencies. 2). Examples: a). A law creating a government body expressly providing that such body may sue or be sued. b). Art. 2180 of the Civil Code, which creates liability against the State when it acts through a special agent. B. Implied consent: 1). The State enters into a private contract. a). The contract must be entered into by the proper officer and within the scope of his authority. b). UNLESS: The contract is merely incidental to the performance of a governmental function. 2). The State enters into an operation that is essentially a business operation. a). UNLESS: The operation is incidental to the performance of a governmental arrastre services) function (e.g.

b). Thus, when the State conducts business operations through a GOCC, the latter can generally be sued, even if its charter contains no express sue or be sued clause. 3). Suit against an incorporated government agency. a) This is because they generally conduct propriety business operations and have charters which grant them a separate juridical personality. 4). The State files suit against a private party. UNLESS: The suit is entered into only to resist a claim. Garnishment of government funds: 1) GENERAL RULE: NO. Whether the money is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment. 2) EXCEPTION: A law or ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished. Consent to be sued is not equivalent to consent to liability:

1) The Fact that the State consented to being sued does not mean that the State will ultimately be held liable. 2) Even if the case is decided against the State, an award cannot be satisfied by writs of execution or garnishment against public funds. Reason: No money shall be paid out of the public treasury unless pursuant to an appropriation made by law. Section 4. THE ARMED FORCES OF THE PHILIPPINES Composition: A citizen armed force Prohibitions and disqualifications: 1) Military men cannot engage, directly or indirectly, in any partisan political activity, except to vote. 2) Members of the AFP in active service cannot be appointed to a civilian position in the government, including GOCCs or their subsidiaries. The Chief of Staff: 1) Tour of duty: Not exceed to three years 2) EXCEPTION: In times of war or other national emergency as declared by Congress, the President may extend such tour of duty. ARTICLE XIII SOCIAL JUSTICE AND HUMAN RIGHTS

Social Justice
1) Social justice in the Constitution is principally the embodiment of the principle that those who have less in life should have more in law. 2) The 1987 Constitution advances beyond what was in previous Constitutions in that it seeks not only economic social justice but also political social justice.

Principal activities in order to achieve social justice

1) Creation of more economic opportunities and more wealth; and 2) Closer regulation of the acquisition, ownership, use and disposition of property in order to achieve a more equitable distribution of wealth and political power.

Labor
Section 3 of Article XIII elaborates on the provision in Article II by specifying who are protected by the Constitution, what rights are guaranteed, and what positive measures the state should take in order to enhance the welfare of labor. The right to organize is given to all kinds of workers BOTH in the PRIVATE and PUBLIC sectors. The workers have a right to hold peaceful concerted activities except the right to strike, which is subject to limitation by law.

Right to organize and to hold peaceful concerted activities

Right to participate in the decision making process of employers

The workers have the right to participate on matters affecting their rights and benefits, as may be provided by law. This participation can be through 1) 2) 3) 4) collective bargaining agreements, grievance machineries, voluntary modes of settling disputes, and conciliation proceedings mediated by government.

Agrarian Reform
Goals: Agrarian reform must aim at 1) efficient production, 2) a more equitable distribution of land which recognizes the right of farmers and regular farmworkers who are landless to own the land they till, and 3) a just share of other or seasonal farmworkers in the fruits of the land.
CARL as an exercise of police power and power of eminent domain

To the extent that the law prescribes retention limits for landowners, there is an exercise of police power. But where it becomes necessary to deprive owners of their land in excess of the maximum allowed there is compensable taking and therefore the exercise of eminent domain. It extends not only to private agricultural lands, but also to other natural resources, even including the use and enjoyment of communal marine and fishing resources and offshore fishing grounds.

Reach of agrarian reform

The Commission on Human Rights

Composition: 1) Chairman; and 2) 4 members Qualifications: 1) Natural-born citizens of the Philippines; 2) Majority of the Commission must be members of the Philippine Bar; 3) Term of office, other qualifications and disabilities shall be provided by law; 4) The appointment of the CHR members is NOT subject to CA confirmation; and 5) The CHR is not of the same level as the COMELEC, CSC, or COA. Powers:

1) Investigate all forms of human rights violations involving civil or political rights A. Violations may be committed by public officers or by civilians or rebels. B. CHR cannot investigate violations of social rights. C. CHR has NO adjudicatory powers over cases involving human rights violations. D. They cannot investigate cases where no rights are violated. E. Example: There is no right to occupy government land, i.e. squat thereon. Therefore, eviction therefrom is NOT a human rights violation. 2) Adopt operational guidelines and rules of procedure. 3) Cite for contempt for violations of its rules, in accordance with the Rules of Court. 4) Provide appropriate legal measures for the protection of the human rights of all persons, within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection. A. CHR can initiate court proceedings on behalf of victims of human rights violations. B. They can recommend the prosecution of human rights violators, but it cannot itself prosecute these cases. C. BUT: The CHR cannot issue restraining orders or injunctions against alleged human rights violators. These must be obtained from the regular courts. 5) Exercise visitorial powers over jails, prisons and other detention facilities. 6) Establish continuing programs for research, education and information in order to enhance respect for the primacy of human rights. 7) Recommend to Congress effective measures to promote human rights and to provide compensation to victims of human rights violations or their families. 8) Monitor compliance by the government with international treaty obligations on human rights. 9) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any CHR investigation. 10) Request assistance from any department, bureau, office, or agency in the performance of its functions. 11) Appoint its officers and employers in accordance with law. 12) Perform such other functions and duties as may be provided for by law ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS Section 1: PUBLIC OFFICE AS A PUBLIC TRUST

Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice and lead modest lives. Section 2: IMPEACHMENT/REMOVAL FROM OFFICE Impeachment: (as means of removal from office) 1. Who may be impeached: - President - VP - SC Justices - Constitutional Commission members - Ombudsman 2. Grounds - Culpable violation of the Constitution - treason - bribery - graft and corruption - other high crimes or - betrayal of public trust Note: It is an exclusive list. Congress cannot, by law, add to the list of impeachable offenses. 1. These officers cannot be charged in court with offenses that have removal from office as penalty. 2. The President cannot be charged with murder. 3. A SC Justice cannot be disbarred because this would disqualify him from his position. 4. BUT AFTER an official has been impeached, he can be charged with the appropriate offense. 5. Resignation by an impeachable official does not place him beyond the reach of impeachment proceedings; he can still be impeached All Other Public Officers and Employees 1. They may be removed from office as provided by law 2. BUT: NOT by impeachment Section 3: PROCEDURE FOR IMPEACHMENT Exclusive Power of House of Representatives The House of Representatives has exclusive power to INITIATE all cases of impeachment. Procedure: 1. Filling of verified complaint
1. Can be filed by: 1. Any member of the House of Representatives or

2. Any citizen upon a resolution of endorsement by any Member of the House or 3. By at least 1/3 of all the Members of the House of Representatives

2.) Inclusion of complaint in the order of business with 10 session days 3.) Referral to proper Committee within 3 session days thereafter 4.) Submission of Committee report to the House together with corresponding resolution
1. There should be a hearing 2. There should be a majority vote of the members 3. The report should be submitted within 60 days from referral, after hearing, and by a majority vote of ALL its members.

5.) Calendaring of resolution for consideration by the House Should be done within 10 session days from receipt thereof 6.) Vote of at least 1/3 of all Members of the House necessary to:
1. Affirm a favorable resolution with the Articles of Impeachment of the Committee or 2. To override its contrary resolution

Note: If the verified complaint or resolution of impeachment was filed by at least 1/3 of all the Members of the House, it shall constitute the Articles of Impeachment. Trial in the Senate shall proceed. 7.) Trial in the Senate

1. Senate has the sole power to try and decide all cases of impeachment 2. For this purpose, the Senators shall be under oath or affirmation 3. When the President of the Philippines is on trial, the CJ of the Supreme Court presides. However, he/she will not vote.

8.)

Judgment of Conviction

This requires the concurrence of 2/3 of all the Members of the Senate 9.) Effect of the Impeachment

1. Removal from office of the official concerned 2. Disqualification to hold any office under the Republic of the Philippines 3. Officer still liable to prosecution, trial, and punishment if the impeachable offense committed also constitutes a felony or crime.

Section 4: SANDIGANBAYAN Sandiganbayan = the anti-graft court Sections 5-6, 8-14: OFFICE OF THE OMBUDSMAN Composition: 1.) 2.) 3.) 4.) Ombudsman/Tanodbayan Overall deputy At least one Deputy each for Luzon, Visayas and Mindanao Deputy for military establishment may be appointed

Qualifications: (Ombudsman and his deputies) 1.) 2.) 3.) 4.) 5.) 6.) Natural born citizen of the Philippines At least 40 years old at time of appointment Of recognized probity and independence Member of the Philippine bar Must not have been candidate for any elective office in the immediately preceding election For Ombudsman: He must have been for ten years or more

1. A judge or 2. Engage in the practice of law in the Philippines

Disqualifications/Prohibitions (under Article IX, Section 2) 1.) Cannot hold any other office or employment during his tenure

2.) Cannot engage in the practice of any profession or in the active management or control of any business which may be affected by the functions of his office 3.) Cannot be financially interested, directly or indirectly, in any contract with or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries. Appointment 1. Of Ombudsman and deputies 1. By the president from a list of at least 6 nominees prepared by the Judicial and Bar Council. Vacancies will be filled from a list of 3 nominees 2. Appointments do NOT require confirmation 3. All vacancies shall be filled within 3 months after they occur. 2. Of other officials and employees of the Office of the Ombudsman 1. By the Ombudsman 2. In accordance with Civil Service Law Term: (Ombudsman and deputies) 1. 7 years with reappointment 2. They are NOT qualified to run for any office in the election immediately succeeding their cessation from office Rank/Salaries: 1. The Ombudsman has the rank of Chairman of a Constitutional Commission 2. The Members have the rank of members of a Constitutional Commission 3. Their salaries cannot be decreased during their term of office. Powers, Functions and Duties of the Office of the Ombudsman

1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
1. The SC held that the power to investigate and prosecute cases involving public officers and employees has been transferred to the Ombudsman. 2. The Ombudsman may always delegate his power to investigate. 3. The power to investigate includes the power to impose preventive suspension. 4. This preventive suspension is not a penalty. 5. INVESTIGATE does not mean preliminary investigation. 6. The complaint need not be drawn up in the usual form. 7. The ILLEGAL act or omission need not be in connection with the duties of the public officer or employee concerned. 8. ANY illegal act may be investigated by the Ombudsman. In this regard, the Ombudsmans jurisdiction is CONCURRENT with that of the regular prosecutors.

2. Direct, upon complaint or at its own instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any governmentowned or controlled corporation with original charter, to perform and expedite any act of duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.
1. The Ombudsman has PERSUASIVE POWER, and may require that proper legal steps are taken by the officers concerned. 2. The public official or employee must be employed in:

(I). (II). (III).

The Government Any subdivision, agency, or instrumentality thereof; or GOCCs with original charters

1. The SC has held that the SP may prosecute before the Sandiganbayan judges accused of graft and corruption, even if they are under the Supreme Court.

3.) Direct the officer concerned to take the appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.
1. The Ombudsman does NOT himself prosecute cases against public officers or employees. 2. Final say to prosecute still rests in the executive department. 3. The Ombudsman or Tanodbayan may use mandamus to compel the fiscal to prosecute.

4.) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds of properties, and report any irregularity to COA for appropriate action. 5.) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 6.) Public matters covered by its investigation when circumstances so warrant and with due process.

7.) Determine the cause of inefficiency, red tape, mismanagement, fraud and corruption in the government and make recommendations for their elimination and the observance of high standards of ethics and efficiency 8.) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Note: The Office of the Ombudsman also has the duty to act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality including GOCCs and their subsidiaries. In appropriate cases, it should notify the complainants of the action taken and the result thereof. Fiscal Autonomy The Office of the Ombudsman enjoys fiscal autonomy. Its approved annual appropriations should be automatically and regularly released. Section 7: OFFICE OF THE SPECIAL PROCECUTOR 1. Under the 1987 Constitution, the existing Tanodbayan became the Office of the Special Prosecutor 2. Powers
1. It will continue to function and exercise its powers as now or hereafter may be provided by law 2. Exception: Powers conferred on the Office of the Ombudsman

3. The Office of the Special Prosecutor is subordinate to and acts under the orders of the Ombudsman Note: According to Jack, the SC was wrong because the ConCom intended that the SP was to prosecute anti-graft cases.

Section 15: RECOVERY OF ILL-GOTTEN WEALTH Prescription, Laches, Estoppel 1.) The right of the State to recover properties unlawfully acquired by public officials and employees from them or from their nominees or transferees shall NOT be barred by prescription, laches or estoppel. 2.) Their right to prosecute criminally these officials and employees may prescribe. Section 16: PROHIBITION ON CERTAIN FINANCIAL TRANSACTIONS Coverage: This prohibition applies to: 1.) 2.) 3.) 4.) President Vice-President Members of the Cabinet Members of Congress

5.) 6.) 7.) 8.)

Members of Supreme Court Members of Constitutional Commissions Ombudsman Any firm or entity in which they have controlling interest

When prohibition applies: Prohibition applies during their TENURE. Scope of prohibition: 1.) The above mentioned officials cannot obtain, directly or indirectly for BUSINESS PURPOSES:

1. Loans 2. Guarantees 3. Other forms of financial accommodation

From:
1. Government owned or controlled banks; or 2. Government owned or controlled financial institutions.

2.)

If the loan, etc, is NOT for business purpose, e.g. a housing loan, the prohibition does not

apply. Section 17: Statements of assets, liabilities and net worth When submitted: Public officer and employee shall submit a declaration under oath of his assets, liabilities and net worth upon assumption of office and as often as required under the law. When declaration shall be disclosed to the public: These declarations shall be disclosed to the public in a manner provided by law in the case of: 1.) 2.) 3.) 4.) 5.) 6.) 7.) 8.) President Vice-President Members of the Cabinet Members of Congress Justices of the Supreme Court Members of Constitutional Commissions Other constitutional offices Officers of the armed forces with general or flag rank

Section 18: Allegiance of public officers and employees Allegiance to the State and to the Constitution

Change in Citizenship/Immigrant Status 1.) Incumbent public officers and employees who seek either:

1. Change his citizenship; or 2. Acquire immigrant status in another country

Shall be dealt with by law. 2.) If Philippine citizenship is one of the qualifications to the office, the loss of such citizenship means the loss of the office by the incumbent. 3.) The Election Code provides the rules with respect to non-incumbents, i.e. persons running for elective offices.
1. The Code provides that permanent residents of or immigrant to a foreign country cannot file certificates of candidacy unless they expressly waive their status as such

This renunciation must be some other than, and prior to, the filling of the certificate of candidacy.