Expulsion

Art. 127. Expulsion. — The penalty of prision correccional shall be imposed upon any public officer or employee who, not being thereunto authorized by law, shall expel any person from the Philippine Islands or shall compel such person to change his residence.

Acts punishable under Article 127

1.   By expelling a person from the Philippines

2.   By compelling a person to change his residence

Elements

1. That the offender is a public officer or employee

2. That he expels any person from the Philippines, or compels a person to change his residence

3. That the authority is not authorized to do so by law

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Delaying Release

Art. 126. Delaying release. — The penalties provided for in Article 124 shall be imposed upon any public officer or employee who delays for the period of time specified therein the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or unduly delays the service of the notice of such order to said prisoner or the proceedings upon any petition for the liberation of such person. (Revised Penal Code)

Acts punishable under Article 126

1. By delaying the performance of a judicial or executive order for the    release of a prisoner

2. By unduly delaying the service of the notice of such order to said prisoner

3. By unduly delaying the proceedings upon any petition for the liberation of such person

Elements

1.   That the offender is a public officer or employee

2.   That there is a judicial or executive order for the release of a prisoner or detention prisoner, or that there is a proceeding upon a petition for the liberation of such person

3.   That the offender without good reason delays:

a.  The service of the notice of such order to the prisoner;

b.  The performance of such judicial or executive order for the release of the prisoner; OR

c.  The proceedings upon a petition for the release of such person

● Wardens and  jailers  are  the  public  officers  most  likely  to  violate  Article  126  since  they  are  the  officers temporarily in charge of the custody of persons or detained persons.

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Is it still necessary to get a marriage license if the parties to be married have already been living together as husband and wife?

A marriage license is one of the formal requisites of marriage (Article 3, Family Code of the Philippines). Except in the cases provided in Articles 27, 28, 31, 32 and 34 of the Family Code of the Philippines, anyone who wants to be married must secure a marriage license from the local civil registrar of the city or municipality where either contracting party habitually resides (Article 9, id.). Such marriage license shall be valid in any part of the Philippines for a period of one hundred twenty (120) days from the date of issue and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it (Article 20, id.).

One exception to the marriage license requirement is termed as the legal ratification of marital cohabitation as provided in Article 34 of the Family Code, to wit:

“Article 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage”.

By lessening the requirements of getting married, this exemption somehow encourages persons who have been living together without the benefit of marriage to legalize their cohabitation. However, the mere cohabitation between the contracting parties does not automatically exempt them from the marriage license requirement. In order that this exemption may be invoked, the following requisites, as enunciated in the case of Borja-Manzano vs. Sanchez (A.M. No. MTJ-00-1329, March 08, 2011) are: 

1) The man and woman must have been living together as husband and wife for at least five years before the marriage; 

2) The parties must have no legal impediment to marry each other; 

3) The fact of absence of legal impediment between the parties must be present at the time of marriage; 

4) The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other; and 

5) The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage.

Taken from: Manila Times

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Civil Service Commission vs Dacoycoy

To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee.

Facts:

In 1995, George P. Suan, Citizens Crime Watch Vice-President, Allen Chapter, Northern Samar, filed with the Civil Service Commission (CSC), Quezon City, a complaint for habitual drunkenness, misconduct and nepotism against respondent Pedro O. Dacoycoy. After a formal investigation, the CSC promulgated its resolution on January 28, 1997 finding no substantial evidence to support the charge of habitual drunkenness and misconduct. However, the CSC found Dacoycoy guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service.

On appeal to the Court of Appeals, the CSC’s resolution was reversed ruling that the respondent did not appoint his two sons; hence, respondent was not guilty of nepotism. The Court further held that it is “the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act.

Issues:

1. Whether or not Dacoycoy is guilty of nepotism.

2. Who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case

Held:

Yes. The law defines nepotism as all appointments to the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited. The word “relative” and members of the family referred to are those related within the third degree either of consanguinity or of affinity.

The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential capacity, (b)  teachers, (c)  physicians, and (d)  members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission.”

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:

a) appointing authority;

b) recommending authority;

c) chief of the bureau or office, and

d) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered.  In the last two mentioned situations, it is immaterial who the appointing or recommending authority is.  To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee.

It is true that Dacoycoy did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who recommended to DECS Region VIII the appointment of Rito Dacoycoy as driver and appointed Ped Dacoycoy as casual utility worker. However, it was the respondent who recommended Mr. Daclag’s authority to appoint first level positions. It was also the respondent who certified that “funds are available for the proposed appointment of Rito and even rated his performance as “very satisfactory”. Further, Ped, listed him in his job description as his “next higher supervisor.” Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. Mr. Daclag recommended the appointment of respondent's two sons and placed them under respondent's immediate supervision serving as driver and utility worker of the school. Both positions are career positions. Clearly he is guilty of nepotism.

Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel.  In Debulgado, we stressed that “The basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one.” “The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive.” If not within the exceptions, it is a form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head.  As we said in an earlier case “what we need now is not only to punish the wrongdoers or reward the ‘outstanding’ civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft or circumvention of the law.

2. There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him. He was the respondent official meted out the penalty of dismissal from the service.  On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service. Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism.  Who now may appeal the decision of the Court of Appeals to the Supreme Court?  Certainly not the respondent, who was declared not guilty of the charge.  Nor the complainant George P. Suan, who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system.  Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court.

The Court REVIVES and AFFIRMS the resolutions of the Civil Service Commission dated January 28, 1998 and September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service. (Civil Service Commission vs. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999)

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People vs. Sola

The primordial aim and intent of the Constitution must ever be kept in mind. In case of doubt, it should be resolved in favor of a change of venue.

The prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. 

Facts:

CFI Negros Occidental issued a search warrant for the search and seizure of the deceased bodies of 7 persons believed in the possession of the accused Pablo Sola in his hacienda at Sta. Isabel, Kabankalan, Negros Occidental. On September 16, 1980 armed with the above warrant, the 332nd PC/INP Company proceeded to the place of Sola. Diggings made in a canefield yielded two common graves containing the 7 bodies. Seven (7) separate complaints for murder were thus filed against Pablo Sola and 18 other persons.  The municipal court found probable cause against the accused and ordered their arrest. However, without giving the prosecution the opportunity to prove that the evidence of guilt of the accused is strong, the court granted them the right to post bail for their temporary release. Pablo Sola and two others have since been released from detention. The witnesses in the murder cases informed the prosecution of their fears that if the trial is held at the CFI Himamaylan which is but 10 kilometers from Kabankalan, their safety could be jeopardized. At least 2 of the accused are official with power and influence in Kabankalan and they have been released on bail. In addition, most of the accused remained at large. There have been reports made to police authorities of threats made on the families of the witnesses.

Issues:

1. Whether or not change of venue is proper

2. Whether or not the bail bond should be cancelled for failure to abide by the basic requirement that the prosecution be heard in a case where the accused is charged with a capital offense, prior to bail being granted.

Held:

Change of venue

Change of venue has become moot and academic with the transfer of the case to Bacolod City. However, the case proceeds with this discussion: To compel the prosecution to proceed to trial in a locality where its witnesses will not be at liberty to reveal what they know is to make a mockery of the judicial process, and to betray the very purpose for which courts have been established. The witnesses in the case are fearful of their lives. They are afraid they would be killed on their way to or from Himamaylan during any of the days of trial. Because of this fear, they may either refuse to testify or testify falsely to save their lives.

Right of bail

The bail bonds must be cancelled and the case remanded to the sala of Executive Judge Alfonso Baguio for such hearing. 

Whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. 

Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. This norm which is of the very essence of due process as the embodiment of justice requires that the prosecution be given the opportunity to prove that there is strong evidence of guilt. It does not suffice, as asserted herein, that the questions asked by the municipal judge before bail was granted could be characterized as searching. That fact did not cure an infirmity of a jurisdictional character. (People vs. Sola, G.R. No. L-56158-64 March 17, 1981)

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Constitutional Safeguards to Insure Independence of the Judiciary

The following are the constitutional safeguards to maintain judicial independence:

1) The Supreme Court is a constitutional body and cannot be abolished by mere legislation.

2) The members of the Supreme Court cannot be removed except by impeachment.

3) The Supreme Court cannot be deprived of its minimum jurisdiction prescribed in Section 5, Article X of the Constitution.

4) The appellate jurisdiction of the Supreme Court cannot be increased by law without its advice and concurrence.

5) Appointees to the Judiciary are nominated by the Judicial and Bar Council and are not subject to confirmation by the Commission on Appointments.

6)  The Supreme Court has administrative supervision over all lower courts and their personnel.

7) The Supreme Court has exclusive power to discipline Judges of lower courts.

8) The Members of the Judiciary have security of tenure, which cannot be undermined by a law reorganizing the Judiciary.

9)  Members of the Judiciary cannot be designated to any agency  performing quasi-Judicial or administrative functions.

10) The salaries of Members of the Judiciary cannot be decreased during their continuance in office.

11) The Judiciary has fiscal autonomy.

12) The Supreme Court has exclusive power to promulgate rules of pleading, practice and procedure.

13) Only the Supreme Court can temporarily assign judges to other stations.

14) It is the Supreme Court who appoints all officials and employees of the Judiciary. (Cruz, Philippine Political Law, 1995 ed. (pp. 229-31.) Political Law Bar Question 2000

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Appointment to the Judiciary

Sections 7, Article VIII,  1987 Constitution

1. No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines.

2. The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar.

3. A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.

Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointment within ninety days from the submission of the list.

A. QUALIFICATIONS

1. Members of the Supreme Court

a. Natural-born citizen;

b. At least 40 years old;

c. Have been for 15 years or more, a judge of a lower court or engaged in the practice of law in the Philippines

d. Of proven competence, integrity, probity, and independence

2. Members of the Court of Appeals

- same qualifications as those provided for Justice of the Supreme Court

3. Regional Trial Court Judges

a. Natural-born citizen;

b. At least 35 years old;

c. At least 10 years of law practice in the Philippines or holding office requiring admission to the bar as a prerequisite

d. Of proven competence, integrity, probity, and independence

4. Metropolitan, Municipal and Municipal Circuit Trial Court Judges

a. Natural-born citizen;

b. At least 30 years old;

c. At least 5 years of law practice in the Philippines or holding office requiring admission to the bar as a prerequisite

d. Of proven competence, integrity, probity, and independence

B. PROCEDURE IN APPOINTMENT

The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicialand Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointment within 90 days from the submission of the list.

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Judicial and Bar Council

Section 8, 1987 Phil. Constitution

1.   A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

2.  The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year.

3.  The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings.

4.  The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.

5.  The Council shall have the principal function of recommending appointees to the judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.

What is the Judicial and Bar Council?

The Judicial and Bar Council of the Philippines is a constitutionally-created body that recommends appointees for vacancies that may arise in the composition of the Supreme Court and other lower courts.

Who are the member of the JBC?

The Constitution provides for the composition of the JBC to include the following:

Ex-Officio Chairman

1. The Chief Justice 

Ex-Officio Members

2.  The Secretary of Justice 

3. A representative of the Congress 

Regular Members

4. A representative of the Integrated Bar of the Philippines;

5. A professor of law;

6. A retired member of the Supreme Court;

7. A representative from the private sector.

Ex-Officio Secretary

Clerk of Supreme Court

How are the members of the JBC appointed?

Members from the government are automatically members of the JBC by virtue of their office. The regular members would be nominated by the President with the consent of the Commission on Appointments for a term of four years. However, since the terms will be staggered, the first set of members would serve different lengths of service: the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year. 

What are the powers/functions of the JBC?

The principal function of the JBC is to recommend appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.

Who supervises the JBC and takes care of its appropriations?

The Supreme Court supervises the JBC and provides in the annual budget of the Court the appropriations of the JBC.

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Privilege of Speech and of Debate

Members of Congress cannot be prosecuted for any words spoken in debate or in connection with voting or used in written reports or with things generally done in a session of either House in relation to the business before it. This protection is extended to them during the session on the occasion of the exercise of their functions either in their respective chambers or in joint assembly, or in committees or commission. 


Constitutional Basis

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in Congress or in any committee thereof. (Section 11, Article VI, 1987 Philippine Constitution)


Purpose of the privilege

The purpose of this privilege of speech or debate is not to protect the members against prosecutions for their own benefit but to enable them as representatives of the people to execute the functions of their office without fear of prosecution, civil or criminal. As held in the case of Osmeña v. Pendatun, the Supreme Court took the occasion of defining the purpose of the privilege. It ruled:

Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. As old as the English Parliament, its purpose is to enable and encourage a representative of the public to discharge his public trust with firmness and success for it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however, powerful, to whom the exercise of that liberty may occasion. Such immunity has come to this country from the practices of Parliament as construed and applied by the Congress of the United States. Its extent and application remain no longer in doubt insofar as related to the question before us. It guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional hall. But it does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming to a member thereof. (Source: http://www.senate.gov.ph)

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Freedom from Arrest

Constitutional Basis

One of the privileges that a member of Congress enjoys is the privilege from arrest. In this regard, Section 11, Article VI, of the Constitution provides as follows:

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in Congress or in any committee thereof.

Purpose of the privilege

This privilege is intended to insure representation of the constituents by the members of Congress. In Vera vs. Avelino, the Supreme Court, quoting a decision of the United States Supreme Court, explained for whose benefit the right to parliamentary immunity is secured:

These privileges are thus secured not with the intention of protecting the members against prosecutors for their own benefit, but to support the rights of the people, by enabling their representatives to execute the function of their office without fear of prosecution, civil or criminal.

Discipline of members

A member of Congress could only be suspended by the House of which he is a member and only for the purpose of self-preservation or self-protection. To protect a member of Congress from oppression, even this power has been circumscribed by the 1935 Constitution and further limited by the 1987 Constitution.

The rationale for this was expressed by the Supreme Court as early as 11 September 1924 in Alejandrino vs. Quezon:

It is noteworthy that the Congress of the United States shall not in all its long history suspend a member. And the reason is obvious. Punishment by way of reprimand or fine vindicates the outraged dignity of the House without depriving the constituency of representation; expulsion, when permissible, likewise vindicates the honor of the legislative body while giving to the constituency an opportunity to elect anew; but suspension deprives the electoral district of representation without that district being afforded any means by which to fill the vacancy. By suspension, the seat remains filled, but the occupant is silenced. (Source: http://www.senate.gov.ph)

Cases:

People vs. Jalosjos, G.R. Nos. 132875-76. February 3, 2000. The immunity from arrest or detention of Senators and members of the House of Representatives arises from a provision of the Constitution. The history of the provision shows that the privilege has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable considerations.

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Commission on Appointments

Section 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members. (Article VII, 1987 Philippine Constitution)

What is the Commission on Appointments?

The Commission on Appointments is a body of the Congress of the Philippines as provided by the Constitution. It confirms certain appointments made by the President of the Philippines under Article VII, Section 16 of the 1987 Constitution which reads:

"The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.”

Composition (1-12-12)

1. Ex officio Chairman - Senate President

2. Members 

     a.  12 Senators

     b.  12 Members of the House of Representatives

How are the 12 senators and 12 congressmen elected?

The 12 Senators and 12 Congressmen are elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented.

Powers

The Commission shall act on all appointments submitted to it within thirty (30) session days of the Congress from their submission.

Voting

The Commission shall rule by a majority vote of all the Members. The chairman of the Commission shall not vote, except in case of a tie.

When shall the members Commission on Appointments meet?

The Commission shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its members. 

Who are the officers subject to confirmation by the CA?

Under Section 16, Article VII of the 1987 Constitution, there are two classes of public officers whose appointments need confirmation. These are:

1. The heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain; and

2.  Other officers whose appointments are vested in the President under the 1987 Constitution. The officers referred to under this provision are: the Chairman and Members of Constitutional Commission such as the Commission on Elections, the Commission on Audit and the Civil Service Commission; the regular members of the Judicial and Bar Council.

A. 1. Heads of Executive Departments

               a.  Executive Secretary

               b.  Secretary of executive departments

               c.  Press Secretary

               d.  Director General of NEDA 

               

    2. Ambassadors, other Public Ministers and Consuls

    3. Officers of the Armed Forces from the rank of Colonel or Naval Captain

Air Force, Army and Marine Corps

- General

- Lieutenant General

- Major General

- Brigadier General

- Colonel

Navy

- Admiral

- Vice Admiral

- Rear Admiral

- Commodore

- Captain

B. Other officers whose appointments are vested in the President under the 1987 Constitution

     1.  Regular Members of the Judicial and Bar Council

     2. Chairman and Commissioners of the Civil Service Commission

     3. Chairman and Commissioners of the Commission on Elections

     4. Chairman and Commissioners of the Commission on Audit

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