Article IX Constitutional Commission Commission on Election

A Written Report Submitted to Atty. Rene Callanta Polytechnic University of the Philippines (College of Law)

By Balitao, Mariel Ratani C. De Guzman, May D.L Nequinto, Catherine Jane C. Rasuman, Yasmin P.

September 20

Article IX - Constitutional Commission The Commission on Election Article IX, C Section 1. (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective positions in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for

1. Composition, Qualifications and appointment The composition of the Commission on Election has been reduced to a total complement of seven- a chairman and and six Commissioners. The complement of nine under the 1973 constitution was thought to be too cumbersome. The chairman and the Commissioners must be 1. Natural-born citizen of the Philippines, 2. At the time of their appointment, at least thirty five years of age, 3. Holders of the college degree, but a majority including the chairman must be members of the Philippine Bar who have been engaged in the practice of law for at least ten years, as this required obviously because of the duty reposed in them to be the sole judge of certain election contests, it is remarkable that the qualification is not imposed on all the members and 4. must not have been a candidate for for any elective position in the immediately preceding election. Furthermore, as an additional requirement second paragraph of Article VII sec. 13 says: "The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commission, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries." This is essentially an anti-nepotism provision which even in statutes normally goes up to the fourth degree of consanguinity or affinity. If fourth degree relatives, however, are already in office when President assumes office, the relatives are not thereby ousted from their positions. What is prohibited is appointment and not uninterrupted continuance in office. The meaning of engaging in the practice of law as a requisite for a majority of

the members including chairman was given a broad interpretation by the Supreme Court in Cayetano v. Monsod as simply meaning engaging in "any activity, in or out court, which requires the application of law, legal knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill. Justice Cruz found such definition too sweeping as to render the constitutional requirement practically toothless. But the majority of the court through Mr. Justice Paras held that person's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer entrepreneur of industry, a lawyer - negotiator of contracts, and a lawyer-legislator more than satisfy the constitutional requirement for appointment as Chairman of the Commission on Election that he has been engaged in the active practice of law for at least ten years and that practice of law need not be habitual services rendered in litigations in court. Furthermore, SC upheld that the judgment of the Commission on Appointment which confirmed the appointment was not attended by "grave abuse of discretion and therefore was beyond "judicial interference." 2. Appointment and Term of Office of Commissioners; Rule against Reappointment
Article IX,C, Sec.1 (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

The commissioners are appointed by the President with consent of the Commission of Appointment for a term of seven years "without reappointment". The first appointees are given staggered terms of seven, five, and three years, also "without reappointment". By prescribing that the term of each Commissioner shall be seven years but that of the first Commissioners first appointed and three shall hold office for seven years, three for five years, and the last three for three years, the result achieved is that at any one time only three Commissioners retire together.

Continuity in the body is thus achieved. Moreover, it makes it unlikely that all the Commissioners at any one time are appointees of the same President. (The long reign of President Marcos frustrated this devout wish under the 1973 Constitution.) Since appointment to any vacancy is only for the unexpired portion of the term of the predecessor, the regularity of the staggered rotational system remains undisturbed even by vacancies occurring in mid-term. Moreover, as pointed out in NP v. De Vera the prohibition on reappointment comes as continuation of the retirement that the Commission shall hold office for a term of nine years. Reappointment is not prohibited provided his term will not exceed nine years. But in Republic v. Imperial the SC made the statement that, once appointed, regardless of the duration of his tenure, a member of the Commission on Elections could no longer be reappointed because of the express prohibition in the Constitution. The prohibition of temporary appointments or appointments in acting capacity was the subject of Brillantes v. Yorac. In the absence of chairman and statutory rule on the subject, President Aquino designated Commissioner Yorac Acting Chairman. The Solicitor General argued that the designation was justified by "administrative expediency." However, emphasizing the importance of the Commission's constitutionally guaranteed independence, the court said that the choice of temporary chairman is an internal matter which comes under the discretion of the Commission as a body and that such discretion cannot be exercised for the Commission by anybody else. Pursuant to the policy underlying the rotational scheme, it was held in Nacionalista v. Bautista, that the Solicitor General could not be appointed acting member of the Commission on Elections. The reason of SC was that the revocable nature of his appointment, coupled with the fact that as a solicitor general he was subject to the President's constitutional power of control and that would impair his independence in the election body. The case of Matibag v. Benipayo in justifying the second ad interim appointment, the court made a distinction between a permanent appointment that has been confirmed by the Commission on Appointment and a permanent appointment that has not been so confirmed, as in the case of an ad interim appointment: "the ad interim appointment and the subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on

reappointments because there were no previous appointments that were confirmed by the Commission on Appointment." In sum, therefore, in the judgment of the Court the prohibition of reappointment is only of one who has been confirmed by the Commission on Appointments. 3. Appointment of Personnel
Article IX A Section 4 . The Constitutional Commissions shall appoint their officials and employees in accordance with law.

The Constitutional Commission are offices specifically authorized by the Constitution to appoint their officials. This does not mean however, that appointments made by them are not subject to Civil Service Law and Rules. If this were the case, these independent bodies would arrogate upon themselves a power that properly belongs to the Civil Service Commission. Had the intention of the framers of the Constitution been to isolate and grant full independence to the Constitutional Commission in the matter of appointments, it would have so provided.

4. Salary
Article IX, A, Section 3 The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure

This provision protects their salary from diminution during their continuance in office. Furthermore, the chairmen of each of each of these Constitutional Commissions originally received an annual salary of P204, 000.00, and the members an annual salary of P180,000.00. These salaries have been increased by statute and may not be decreased during the incumbent's continuance in office. The purpose of the prohibition against the decrease is to prevent the legislature from exerting pressure upon the Commissions by "operating on their necessities." The Permission to increase their salaries during their continuance in office is a realistic recognition of the need that may arise to adjust the compensation to any increase in the cost of living. However, it may also be utilized by the legislature to influence the Commissions by "appealing to their avarice" through a promise to improve their pay in exchange for certain concessions.

5. Disqualifications Article IX, A, Section 2 No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office, nor shall he 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 government-owned or controlled corporations or their

The purpose of these disqualifications is to compel the chairmen and members of the Constitutional Commissions to devote their full attention to the discharge of their duties and, as well, to remove from them any temptation to take advantage of their official positions for selfish purposes. The clause which says that a Commissioner shall not "engage in the practice of any profession or in the active management or control of any business which in any way may be affected by function of his office" was the subject of the prolonged discussion. It was made clear that "practice of a profession, at least for the purpose of this prohibition, does not thereby include teaching thus a lawyer who teaches law does not violate the said provision. In addition, the prohibition on "active management" of a business does not prohibit a Commissioner from owning a business but it prohibits him from being a managing officer or a member of the governing board of a business which in any way may be affected by the functions of his office. The prohibition of financial interest in government contracts or franchises applies also to contracts with subsidiaries of government corporations, that is, corporations formed not by special law but by mother corporations through the general corporation law. 6. Impeachment Article XI Section 2 The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

This section enumerates the officers who are removable only by impeachment; the President, Vice President, member of the Supreme court, the Chairmen and members of the Commission on Civil Service, the Commission on Election and the Commission on Audit, and the Ombudsman. The right to be removed only by impeachment is the constitutional guarantee of security of tenure. The guarantee effectively blocks the use of other legal ways of ousting an officer. 7. Powers and function of the Commission on Election a. Enforcement of Election Laws The Constitution expressly provided for the powers and functions of the Commission on Election as stated in Art. IX, C, Sec. 2. It posits the COMELEC to have the power to enforce and administer all laws and regulations relative to plebiscite, initiative, referendum, recall and election. For the purpose of the COMELECs power and functions Election should be understood as the conduct of polls, listing of voters and holding of the electoral campaign, casting and counting of votes, initiative as the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for that purpose, referendum as the power of the electorate to approve or reject legislation through an election called for that purpose, recall as the termination of official relationship of a local elective official for loss of confidence prior to the expiration of his term through the will of the electorate and plebiscite is the submission of constitutional amendments or important legislative measures to the people for ratification. The laws and regulations pertaining to the powers and function of the COMELEC includes but are not limited to the filing of certificates of candidacy, prevent or prosecute election offenses, supervise the registration of voters and the holding of polls, make sure that canvass of votes and proclamations of winners are in accordance to law, annul an illegal registry of voters, cancel a proclamation made by board if canvassers by reason of irregular or incomplete canvass, oust the candidate proclaimed notwithstanding that he has already assumed office, declare failure of election because of terrorism while counting votes, preparations of election return and call another election and may reject nuisance candidacies. However among the election activities falling under the powers of

COMELEC mentioned above, the Supreme Court ruled in the case of Aguam v. COMELEC, that the power to refuse to give due course to a certificate of candidacy duly accomplished and filed which is ministerial in nature is not included. While the COMELEC is provided with the power of being the sole judge of any dispute pertaining to elections and the rest of the activities related to it, it is imperative to take note that in the case of Carlos v. Angeles it was emphasized that the laws governing to election contests must be liberally construed to the end that the will of the people shall not be defeated due to technicalities of rules set by the COMELEC. Furthermore, together with the function of enforcing and administering laws, in the case of Gallardo v. Tambamo it was mentioned by the supreme court that the COMELEC is also with the power to promulgate such pertaining to election concerns independent from Congress but may withdraw the same at anytime. This is based on the reason of ensuring free, orderly and honest elections to preserve the peoples sacred right of suffrage. According to Art. IX, C, Sec. 7 No pardon, amnesty, parole or suspension of sentence may be granted by the president without the recommendation of the COMELEC. b. Decision of Administrative Question The constitution stated in Art. IX, C, Sec. 2 that the COMELEC shall decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. This ascertains the establishment of precincts, the designation of polling places, the purchase of election paraphernalia, and the appointment of election officials, the registrations of voters and the conduct of elections in general. c. Prosecute Election Law Violators The power of COMELEC to prosecute violations on election laws as provided by the Constitution states that COMELEC shall exercise exclusive original jurisdiction over all contests relation to the elections, returns and qualifications of all

elective regional provincial and city officials and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Also it says that decisions, final orders or rulings of the COMELEC on election contests involving elective municipal and barangay offices shall be final, executory and not appealable. It means that those cases involving municipal or barangay officials that were initially decided by regional or municipal trial courts are under the appellate jurisdiction of the commission on election apart from those which the commission initiated and that these cases may be appealed to the Supreme Court by petition for certiorari on pure question of law involving lack or excess of jurisdiction. COMELEC meets in two divisions of three members and their decisions may be reviewed by the commission sitting en banc through a motion for reconsideration. When it comes to prosecution of election violations the phrase election, returns and qualification should be interpreted in its totality as referring to all matter affecting the validity of the contestees title. Returns means canvas of returns and proclamation of winners, composition of the board of canvassers and authenticity of the election returns and qualification pertains to questions against the proclaimed winner, such as disloyalty or ineligibility or the inadequacy of certificate of candidacy. Also it is an established rule that prosecution of election registrar is the jurisdiction of COMELEC not the Tanodbayan based on the case of De Jesus v. People. The Supreme Court states that it is not the character or personality of the offender but the crime committed that determines jurisdiction. d. Deputization of Law- Enforcement Agencies The power to deputize with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections is vested by the Constitution to the COMELEC. It was understand that the COMELEC may only exercise the power of deputization with the consent of the President because the commission cannot directly exercise disciplinary authority over any officer or employee it has deputized. According to Juan V. Borra, a delegate in the 1935 Constitution, deputization

prerogatives are initially and actively the COMELECs and the president may veto or institute any COMELECs action meaning though deputization is expressly vested by the Constitution to COMELEC it is subordinated to the President. In effect it shall be implied that the disorderliness in any election must be equally shared by the COMELEC and the president.

REFERENCES A. Books Bernas, Joaquin G. The 1987 Constitution of the Republic of the Philippines: A commentary. 2009 edition Cruz, Isagani. Philippine Political law. 1998 edition

B. Magazines/ Journal Articles C. Internet