To Count or Not to Count the Vice Governor

 A QUALIFICATION can now be had. For purposes of determining the existence of quorum, the Vice Governor, as the Presiding Officer of the Sangguniang Panlalawigan (SP), must be counted. For purposes of ascertaining the number which constitutes as the majority vote, the Vice Governor, as the Presiding Officer of the SP, must be excluded in the counting.

It can be recalled that the Supreme Court in La Carlota City vs. Rojo, G.R. No. 181367, April 24, 2012, addressed the issue on whether or not the Vice Governor should be counted in determining the existence of quorum.  In Tobias vs. Cadiao, G.R. No. 185369, August 3, 2016, the Supreme Court finally resolved the recurring issue on whether or not the Vice Governor as Presiding officer should be counted in determining the required majority to uphold legislative matter before the SP.

The settled pronouncements of the Supreme Court in Tobias vs. Cadiao can be summed up as follows:

  1. The entire membership must be taken into account in computing the quorum of the SP. Section 53 of the Local Government Code requires that the majority of “all  the members of the sanggunian” shall constitute a quorum. As a composite member in the SP, the Vice Governor is therefore included in the determination of a quorum.
  1. The Vice Governor, as Presiding Officer of SP, must not be counted in determining the required majority to uphold legislative matter before the SP. The Vice Governor is elected at large. He holds the mandate of the entire body politic or the entire province. In contrast, regular SP members are elected by district. The regular SP members hold the mandate of specific constituency, their district constituency. On the other hand, Ex-officio SP members represent their respective groups (PCL, ABC and SK).
  1. The Highest Tribunal further explained that the Vice Governor does not enjoy full rights of participation in the floors of the SP since he holds the mandate of the entire province. He does not represent any particular group. He ensures that the SP conducts its business for the general welfare of the entire province. He does not take side or cast a vote to every question put upon the body. He exercises his right to vote only in situation of deadlock or tie. He is an “embodiment of impartiality.” To quote the Supreme Court:

            “To hold that the Presiding Officer should be counted in determining the required number of votes necessary to uphold a matter before the SP shall be counter-productive. It would admit deadlocks as ordinary incidents in the conduct of business of the SP, which in effect incapacitates the said body from addressing every issue laid before it. In the process, the SP’s responsiveness, effectivity and accountability towards the affairs of the body politic would be diminished.”

It is suggested that local sanggunians should revisit their Internal Rules of Procedure (IRP) to conform with the doctrinal rules established by the Supreme Court in Tobias vs. Javier.  The issue has been examined and decided. In the order of hierarchy as regards the sources of the parliamentary rules, the judicial decisions of the Supreme Court prevail over the IRP of local sanggunians.

 

 

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Clarifying the Policy on Employment in Government Service of Filipino Citizens with Dual Citizenship

WHEN A POLICY is too restrictive or too encompassing, the best next move for the government agency or Constitutional body concerned is to issue a clarificatory Circular to address the pertinent portion of the original issuance which raised inquiries.

Case in point is CSC MC 08 s. 2017 clarifying CSC MC No. 23 s. 2016. In CSC MC 23 s. 2016, CSC issued a policy saying person with dual citizenship shall not be appointed in the government unless he/she renounces his/her foreign citizenship pursuant to the provisions of RA 9225, otherwise known as “Citizenship Retention and Re-Acquisition Act of 2003”.

CSC MC 23 s. 2016 invites inquiries because an instance can be had wherein a Filipino national can possess dual citizenship by virtue of the citizenship policy of the State where he or she was born. Take the case of the citizenship policy of U.S.A. which follows the principle of jus soli or a principle of nationality law by which citizenship is determined by place of birth.

By circumstances of your birth, you can possess American citizenship if you were born in U.S.A. even assuming you were born of Filipino parents. In this situation, you are Filipino citizen because your parents are Filipinos and you are also an American citizen because you were born in U.S.A. The pivotal question  – Is there a need for you to renounce your American citizenship if you want to be appointed in the Philippine government? This question could not be answered in CSC MC 23 s. 2016 and hence, CSC issued CSC MC 08 s. 2017 to address this situation.

CSC MC No. 08 s. 2017 clarified that CSC MC 23 s. 2016 covers only natural-born Filipinos who were naturalized in another country and later on reacquired their Filipino Citizenship. CSC MC 23 s. 2016 does not cover Filipinos who were born to Filipino parents in another State which follows the principle of jus soli or a principle of nationality law by which citizenship is determined by place of birth.

Policy clarified and inquiries arising therefrom answered.

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Simplifying the Smoking Ban Executive Order of President Rodrigo R. Duterte

MANILA, Philippines – President Rodrigo R. Duterte’s Executive Order No. 26 (EO 26) on Smoking Ban is set to be implemented on July 23, 2017.  Here is my humble attempt to dissect the provisions of EO 26 for easy understanding and ready reference.

 viber image 2

Q1: What does EO 26 provide?

A1: EO 26 provides for the establishment of smoke-free environments in public and enclosed places.

Q2: Who are covered by EO 26?

A2: The EO applies to all persons, whether resident or not, and in all places, found within the territorial jurisdiction of the Philippines.

Q3: Enumerate the prohibited acts under EO 26.

A3: The following acts are declared prohibited and unlawful:

  1. Smoking within enclosed public places and public conveyances whether stationary or in motion;
  2. For persons-in-charge to allow, abet or tolerate smoking in designated smoking areas (DSAs) which do not comply with the requirements of the EO.
  3. For any person to sell, distribute or purchase tobacco products to and from minors. It shall not be a defense for the person selling or distributing that he/she did not know or was not aware of the real age of the minor. Neither shall it be a defense that he/she did not know nor had any reason to believe that the cigarette or any other tobacco product was for the consumption of the minor to whom it was sold;
  4. For a minor to smoke, sell or buy cigarettes or any other tobacco products;
  5. Ordering, instructing, or compelling a minor to use, light up, buy, sell, distribute, deliver, advertise or promote tobacco products;
  6. Selling or distributing tobacco products in a school, public playground, youth hostels, and recreational facilities for minors, including those frequented by minors, or within 100 meters from any point of the perimeter of these facilities;
  7. Placing, posting, displaying or distributing advertisement and promotional materials of tobacco products, such as but not limited to leaflets, posters, display structures, and other materials within 100 meters from the perimeter of a school, public playground, and other facilities frequented particularly by minors, hostel and recreational facilities for minors, including those frequented by them, or in an establishment when such establishment or its location is prohibited from selling tobacco products;
  8. Placing any form of tobacco advertisement outside of the premises of point-of-sale retail establishments; and
  9. Placing any stall, booth, and other display concerning tobacco promotions to areas outside the premises of point-of-sale locations or adult-only facilities.

Q4: Is smoking within enclosed public places and public conveyances, whether stationary or in motion, prohibited?

A4: As a general rule, smoking is prohibited within enclosed public places and public conveyances, whether stationary or in motion.

Q5: Is there an exemption to the general rule?

A5: Yes. Smoking is allowed in Designated Smoking Areas (DSAs) fully compliant with the requirements set forth in the EO.

Q6: Define “Designated Smoking Area” (DSA).

A6: DSA refers to an area of a building or conveyance where smoking may be allowed, which may be in an open space or separate area with proper ventilation subject to the specific standards provided in the EO.

Q7: What are the standards for DSAs?

A7: All DSAs are required to comply with the following standards:

  1. There shall be opening that will allow the air to escape from the DSA to the smoke-free area of the building or conveyance, except for a single door equipped with an automatic door closer; provided that, if the DSA is not located in an open space, such door shall open directly towards a non-smoking buffer zone;
  2. The DSA shall not be located in or within ten (10) meters from entrances, exits, or any place where people pass or congregate, or in front of air intake ducts;
  3. The combined area of the DSA and the buffer zone shall not be larger than 20% of the total floor area of the building or conveyance, provided that in no case shall such area be less than ten (10) square meters.
  4. No building or conveyance shall have more than one DSA;
  5. The ventilation system for the DSA other than in an open space and for the buffer zone shall be independent of all ventilation systems servicing the rest of the building or conveyance;
  6. Minors shall not be allowed inside the DSA and the buffer zone
  7. The DSA shall have the following signages highly visible and prominently displayed:
    1. “Smoking Area” signage
    2. Graphic health warnings on the effects of tobacco use; and
    3. Prohibition on the entry of persons below 18 years old.
  8. Other standards and specifications to better ensure a smoke-free environment as may be prescribed by the Inter-Agency Council-Tobacco under RA No. 9211, provided that such standards and specifications are consistent with EO 26 and that the person-in-charge are given 60 days to comply.

Q8: Enumerate the public places where smoking is absolutely prohibited and DSAs are not allowed. 

A8: There shall be no DSAs in the following public places:

  1. Centers of youth activity such as playschools, preparatory schools, elementary schools, high school, colleges and universities, youth hostels and recreational facilities for minors;
  2. Elevators and stairwells;
  3. Locations in which fire hazards are present, including gas stations and storage areas for flammable liquid, gas, explosives or combustible materials;
  4. Within the building and premises of public and private hospitals, medical, dental, and optical clinics, health centers, nursing homes, dispensaries and laboratories; and
  5. Food preparation areas.

 Q9: Does the EO prevent the person-in-charge from instituting more stringent measures in their buildings and establishments to better ensure a smoke-free environment in their premises?

A9: No. The EO does not prevent the person-in-charge from instituting more stringent measures in their buildings and establishments to better ensure a smoke-free environment in their premises.

Q10: The EO provides that if the DSA is not located in an open space, such door shall open directly towards a non-smoking buffer zone. Define “Non-Smoking Buffer Zone”.

A10: “Non-Smoking Buffer Zone” is ventilated area between the door of the DSA not located in an open space and the smoke-free area. There shall be no opening that will allow air to escape from such Non-Smoking Buffer Zone to the smoke-free area, except for a single door equipped with an automatic door closer. Such door is distinct from the door of the DSA, which shall at least two (2) meters away from the other.

Q11: Who are tasked to implement the provisions of EO 26?

A11: The persons-in-charge are tasked to implement the provisions of EO 26.

Q12: Who are considered as persons-in-charge?

Q12: Persons-in-charge refer to the president/manager in case of a company, corporation, partnership or association, the owner/proprietor/operator in case of a single proprietorship, or the administrator in case of government or private property, facility, office or building, and the city/ municipal schools superintendent, school president, dean or principal in case of school.

Q13: Enumerate the duties and obligations of persons-in-charge.

A13: The following are the duties and obligations of persons-in-charge:

  1. Prominently post and display the “No Smoking” signage in locations most visible in public areas where smoking is prohibited;
  2. Prominently post and display the “No Smoking” signage in the most conspicuous location within the public conveyance;
  3. Remove from the places where smoking is prohibited all ashtrays and other receptacles for disposing of cigarette refuse
  4. For persons-in-charge of schools, public playgrounds, youth hostels and recreational facilities for minors, post the following statement in a clear and conspicuous manner:

 SELLING, ADVERTISING AND PROMOTING CIGARETTES OR OTHER TOBACCO PRODUCTS NOT ALLOWED WITHIN 100 METERS FROM ANY POINT IN THE PERIMETER OF (name of SCHOOL/PLAYGROUND/FACILITY FOR MINORS/ETC.)

  1. For persons-in-charge of schools, public playgrounds, youth hostels and recreational facilities for minors , including those frequented by minors, to report to the nearest Smoke-Free Task Force of the concerned city or municipality any tobacco product selling, advertising, and/or promotion located within 100 meters from its perimeter.
  2. For persons-in-charge of point-of-sale establishment, post the following notice together with a graphic/picture-based health warning on the health consequences of the tobacco use, as prescribed by the Department of Health, in a clear and conspicuous manner:

SALE/DISTRIBUTION OF TOBACCO PRODUCTS TO MINORS IS UNLAWFUL

  1. Establish internal procedure and measures through which EO 26 shall be implemented and enforced within the area of which he or she is in charge.
  2. Ensure that all the employees in the establishment are aware of EO26 and the procedure and measures for implementing and enforcing it; and
  3. For all signage required to be posted, provide for versions of them in local dialect or in English.

 Q14: Who are the persons liable in case the provisions of EO 26 are not duly complied with?

A14: The following persons are liable and be punished in accordance with the governing provision of RA 9211 and other applicable laws:

  1. Any person or entity who commits any of the prohibited acts as stated above;
  2. Person-in-charge who knowingly allow, abet, authorize or tolerate the prohibited acts enumerated above, or who otherwise fail to fulfill his duties and obligations.

Q15. Does EO 26 enjoin Local Government Units (LGUs) to develop, promote and implement Local Smoking Cessation Programs?

Q15.Yes. EO 26 enjoins LGUs, in coordination with DOH, to develop, promote and implement their respective Local Smoking Cessation Programs.  LGUs are also enjoined to form a local Smoke-Free Task Force.

Q16: Who are directed to carry out the provisions of EO 26?

A16: Members of the PNP and Smoke-Free Task Forces are directed to carry out the provisions of EO, including the apprehension of violators and the institution of criminal proceedings for violations of the EO, in accordance with the relevant rules and regulations, and strictly observing due process.

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Personal Data Sheet: Have You Ever Been Formally Charged?

All civil servants encounter an item number in their Personal Data Sheet (PDS) which asks this question: Have you ever been 16 cartoon official 2formally charged?

The standard question is answerable by “Yes” or “No”. Since every statement in the PDS is under oath, an untruthful answer to said question can spell legal trouble. In not a few instances, civil servants ended up as accused in criminal cases and as respondents in administrative cases for giving false statements in their PDS.

But when do we know that a civil servant is considered “formally charged” in a criminal or administrative case?  Do we equate the pendency of a complaint against a civil servant before the Office of the Ombudsman or Office of the Prosecutor as “formal charge”?

Accurate interpretation of the term “formally charged” is necessary because a civil servant formally charged can be deprived of some rights/privileges such as obtaining loans from the GSIS, delay in the release of retirement benefits, prohibition from traveling abroad and disqualification from being nominated or appointed to any government post.

In Plopinio vs. Atty. Cario, A.M. No. P-08-2458, March 22, 2010, a case involving a Clerk of Court who faced administrative and criminal cases for allegedly failing to disclose her pending administrative and criminal cases before the Ombudsman, the Supreme Court had the occasion to clear all the confusions and summarized the instances when a civil servant is considered to be formally charged, to wit:

  1. In administrative proceedings, a civil servant is considered to be formally charged (a) upon the filing of a complaint at the instance of the disciplining authority; or (b) upon the finding of the existence of a prima facie case by the disciplining authority, in case of a complaint filed by a private person.
  1. In criminal proceedings, a civil servant is considered to be formally charged (a) upon the finding of the existence of probable cause by the investigating prosecutor and the consequent filing of an information in court with the required prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy; (b) upon the finding of the existence of probable cause by the public prosecutor or by the judge in cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure; or (c) upon the finding of cause or ground to hold the accused for trial pursuant to Section 13 of the Revised Rule on Summary Procedure.

The court pronouncement is reasonable and fair as it shields civil servants from undesirable legal implications arising from frivolous suits.

 

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Barangay Officials Barred from Partisan Political Activities

COMELEC joined forces with CSC in rally drawingthe issuance of an advisory on electioneering or partisan political activities. I am referring to COMELEC-CSC Joint Circular 01 s. 2016 dated March 29, 2016. At first glance, COMELEC-CSC Joint Circular 001 s. 2016 appears to be just a reiteration of previous CSC Memorandum Circulars reminding government officials and employees holding non-political positions of the prohibition from engaging directly or indirectly in any partisan political activity.

But it is not what it seems. Yup, there were major changes!  It bears noting that in Yatco vs. Santos, G.R. No. L-16133, the Supreme Court is plain that “elective officials” are not covered by the prohibition against engaging in electioneering or partisan political activities for practical reasons and in view of the nature of positions and responsibility.

 To recall, partisan political activity refers to any act designed to promote the election or defeat of a particular candidate or party to public office. Does that mean that elective officials at all levels can engage in electioneering or partisan political activities?

It does not appear so. Item 14 of COMELEC-CSC Joint Circular 001 s. 2016 is explicit that elective officials EXCEPT BARANGAY OFFICIALS are not outside the coverage of prohibition against electioneering or partisan political activities. Simply, elective barangay officials are therefore barred from partisan political activities. To quote COMELEC Chair Juan Andres Bautista: “They should be neutral in the way they provide services to their constituents. And they are not supposed to belong to any political party.”

I carefully selected some items of COMELEC-CSC Joint Circular 01 s. 2016 which may guide the government officials, including barangay officials, of some prohibited acts considered as electioneering or partisan political activities. Take note of the words “consistent”, “continuous”, “wearing”, “government resources”, “job orders” and “contract of services”.

Here are some of the prohibited electioneering acts:

  1. Consistent presence in political rallies, caucuses of, and continuous companionship with certain political candidates and/or political party in said political activities, causing the employee to be closely identified with such candidate and/or with political party.
  1. Wearing of t-shirts or pins, caps or any similar election paraphernalia bearing the names of the candidates or political party except authorized by the COMELEC.
  1. Utilizing government resources such as personnel including job orders or contract of service hirees, time and properties for political purposes.

For social media warriors or the so called “facebookers” or “instagramers”, the Circular allows you to rejoice a little bit as it cited acts not considered as partisan political activities, to wit:

“Social media functions such as “liking”, commenting, “sharing”, re-posting, or following a candidate’s or party’s account, unless these are resorted as an means to solicit support for or against a candidate or party during the campaign period.”

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When the “or” becomes the Basis of an Election Offense

          Failure to give meaning and significance to the two-letter word “or” could end up as legal nightmare for local officials. This was exemplified in the case De Guzman v. COMELEC, G.R. No. 182380, August 28, 2009. The City Mayor purchased two parcels of land to be converted into public cemetery pursuant to leelection offense or notgislative authorization granted to him by the Sangguniang Panlungsod. As payment for the said purchase, the City Treasurer issued and released treasury payment.

          One crucial fact of the case is that the purchase of the two parcels of land and the issuance of treasury payment were done within the 45-day campaign period for local officials. A complaint was filed against the City Mayor and the City Treasurer for violating Sections (v) and (w) of the Omnibus Election Code. Succinctly, paragraph (v) of Section 261 of the Omnibus Election Code prohibits the release, disbursement or expenditure of public funds for public works during the 45-day campaign period. On the other hand, paragraph (w) of Section 261 of the Omnibus Election Code prohibits the construction of public works during the 45-day campaign period or issuance of treasury warrant within the same period.

          The Supreme Court opined that the City Mayor and the City Treasurer could not be charged under paragraph 261 (v) of the Omnibus Election Code since the purchase of the 2 parcels of lands is not subsumed in the term “public works”. The Court explained that that the term “public works” refers only to fixed public infrastructures for use of the public. Unfortunately, the Supreme Court found basis for the filing of criminal information against the City Mayor and the City Treasurer for violating Section 261 (w) of the Omnibus Election Code.

          The Supreme Court postulated that Section 261 (w) is violated in either two ways, to wit: (a) by any person who, within 45 days preceding a regular election and 30 days before a special election, undertakes the construction of any public works except those enumerated in the preceding paragraph; or (b) by any person who issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds within 45 days preceding a regular election and 30 days before a special election.

          Let us revisit the textual language of Section 261 (w) of the Local Government Code, viz:

     “xxx During the period of forty five days preceding a regular election xxxx, any person who: (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds.” (Emphasis supplied)

           The word “or” is a disjunctive term which expresses an alternative. It signifies independence of one thing from another thing. It implies as a disjunctive term. To quote the Court, “the word and can never be read as or, or vice versa, in criminal and penal statutes, where the rule of strict construction prevails”. The peremptory pronouncement of the Supreme Court made it clear in this case that whether or not the treasury warrant issued during the 45-day campaign period was intended for public works is irrelevant in determining if indeed Section 261 (w), subparagraph (b) of the Omnibus Election Code was violated.

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2015 in review

The WordPress.com stats helper monkeys prepared a 2015 annual report for this blog.

Here’s an excerpt:

A New York City subway train holds 1,200 people. This blog was viewed about 6,400 times in 2015. If it were a NYC subway train, it would take about 5 trips to carry that many people.

Click here to see the complete report.

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