Research and Bill Drafting
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Presentation by Atty. Rosario H. Amatong-Buendia at the IAG training workshop for the ARMM Regional Legislative Assembly, 6th September 2013, Makati City

Presentation by Atty. Rosario H. Amatong-Buendia at the IAG training workshop for the ARMM Regional Legislative Assembly, 6th September 2013, Makati City

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Research and Bill Drafting Research and Bill Drafting Presentation Transcript

  • RESEARCH AND BILL DRAFTING FOR MEMBERS OF THE REGIONAL LEGISLATIVE ASSEMBLY OF THE ARMM By: ATTY. ROSARIO H. AMATONG-BUENDIA September 6, 2013
  • INTRODUCTION Scope A. Power s, functions and responsibilities of the Re gional Assembly with sample of bills B. Resear ch and Bill Dr afting Procedur e C. How to amend an existing law
  • PERSONAL REQUIREMENTS OF A MEMBER OF CONGRESS/LEGISLATIVE ASSEMBLY  Knowledge of political, economic, social and cultural aspects of life.  Knowledge of the districts or province they are representing.
  • Knowledge of official parliamentary procedures. Excellent communication and listening skills
  • POWERS OF THE MEMBERS OF THE REGIONAL LEGISLATIVE ASSEMBLY
  • General Plenary Powers Legislative power or law making power (Art. VI Sec.1 ARMM)
  • Art. VI Sec.1 (ARMM) The Regional Assembly- The Legislative power of the autonomous government shall be vested in the Regional Assembly except to the extent that is reserved to the people by provisions on initiative and referendum as provided by law.
  • HOUSE BILL NO. 2300 “ An Act Instituting the Philippine Code of Crimes to further strengthen the criminal justice system, repealing for the purpose book one of Act No. 3815, as amended, otherwise known as the Revised Penal Code of the Philippines and other Special Laws”
  • The Initiative and Referendum Act R.A. 6735   Initiative – the power of the people to directly propose, enact, approve or reject the Constitution, laws, ordinances or resolutions past by any legislative body Santiago v. Comelec GR 127325 Mar. 25 1997, The Law on Initiative is inadequate, incomplete and wanting in essential terms insofar as amendments to the constitution is concerned.
  •  Power to raise money for public use (Taxation) (Art. XI, Secs. 1, 7, 13, ARMM)
  • Art. IX, Sec. 1 (ARMM) The Regional Government shall have the power to create its own sources of revenues and to levy taxes, fees, and charges, subject to the provisions of the Constitution and this Organic Act.
  • Art. IX, Sec. 7 (ARMM ) Extent of Tax Powers; Exceptions. – Unless otherwise provided herein, the taxing power of the regional government and of the provinces, cities, municipalities, and barangays located therein shall not extend to the following:
  • (a) Income tax, except when levied on banks and other financial institutions; (b) Documentary stamps tax; (c) Taxes on estate, inheritance, gifts, legacies, and other acquisition mortis causa, except as otherwise provided by law; (d) Customs duties, registration fees of vessels and wharfage and other charges.
  • HOUSE BILL NO. 00127 “An Act Imposing an Excise Tax, To be Known as Environmental Levy on the use of Plastic Bags in shops, supermarkets, service stations, stores and/or sales outlets, creating the Environmental Support Fund”
  • HOUSE BLL NO. 3343 “ An Act Providing for a Standard Rate of Fees and Charges for Automated Teller Machines”
  • House Bill 4438  An Act Prohibiting the Imposition of Fees and Charges on Dormant Accounts and for other purposes
  • Article IX, Sec. 13 Regional Tax Exemptions. The Regional Assembly, by a vote of absolute majority of all its members, may grant exemptions from regional taxes.
  • RA 10143    An Act Establishing The Philippine Tax Academy, Definings Its Powers and Functions Sec. 13. Income, Legacies, Gifts, Donations, Foreign Aids and Grants For the benefit of the Philipppine Tax Academy or for its operations , administration and support or maintenance shall be exempt from all forms of taxes, fees, assessments and other charges of the government, its agencies, instrumentalities, branches and subdivisions
  • RA 10026 “ An Act Granting Income Tax Exemption to Local Water Districts by Amending Section 27(C) of the National Revenue Code (NIRC) of 1997, as amended, and adding Section 289-A to the Code, for the purpose” (Lapsed into Law on March 11. 2010)
  •  Power to provide how that money should be used (Appropriations) (Art VI, Sec 20, ARMM)
  • Art VI, Sec 20 (ARMM) Annual Budget and Infrastructure Funds. – The annual budget of the Regional Government shall be enacted by Regional Assembly. Funds for infrastructure in the autonomous region allocated by the central government or national government shall be appropriated through a Regional Assembly Public Works Act.
  • Unless approved by the Regional Assembly, no public works funds allocated by the central government or national government for the Regional Government or allocated by the Regional Government from its own revenues may be disbursed, distributed, realigned, or used in any manner.
  • RA 10155 “ General Appropriatons Act of 2012” TOTAL APPROPRIATIONS, AUTONOMOUS REGION IN MUSLIM MINDANAO: P 11,717,707,000
  • RA 10352 “General Appropriations Act 2013” TOTAL APPROPRIATIONS, AUTONOMOUS REGION IN MUSLIM MINDANAO: P13,172,022,000
  • AUTONOMOUS REGION IN MUSLIM MINDANAO PROPOSED BUDGET FOR FISCAL YEAR 2014 Proposed New Appropriations Language for general administration and support to operations, and operations, including locally-funded projects and foreign-assisted projects: P19,615,029,000
  • Non-Legislative Powers The power of removal (Art. VII Sec. 13)
  • Article VII, Sec. 13 (ARM M) Removal of Regional Governor or Regional Vice Governor. – The Regional Governor or the Regional Vice Governor may be removed from office for culpable violation of the Constitution or this Organic Act, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust by a threefourths (3/4) vote of all the Members of the Regional Assembly .
  • The power to propose amendments to the Constitution (Art. XVII Sec. 2 ARMM)
  • Art XVII, Sec. 2 (ARMM) The Regional Assembly shall have the power to initiate proposals for amendment to or revisions of this Organic Act by a vote of three-fourths (3/4) of all of its Members or it may call for a Regional Consultative Commission to propose the amendment or revision.
  • In any case, the amendment or revision shall require the approval of the Congress of the Philippines by a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately.
  • HR 00730 “ Resolution to Constitute the Senate and the House of Representatives into a Constituent Assembly for the purpose of drafting and proposing amendments to, or revision of, the 1987 Constitution particularly to establish a unicameral Congress”
  • HOUSE CONCURRENT RESOLUTION NO. 0017 “ A Concurrent Resolution calling for a Constitutional Convention to propose amendments to, or revision of, the 1987 Constitution of the Republic of the Philippines”
  • HOUSE CONCURRENT RESOLUTION NO. 0026 “ Concurrent Resolution Submitting to the People the Question of Calling a Constitutional Convention”
  • Implied Powers Power to punish contempt/ Power for of inquiry and investigation (Art. VI, Sec. 13 par. 5 ARMM)
  • Arnault v. Nazareno .R. No. L-3820 July 18, 1950    The Senate has the power to punish for contempt for refusing to reveal the name of person to whom Pesos 440,000 was given because information is often unavailing, inaccurate and incomplete so some compulsion is essential Senate has authority to commit petitioner in contempt beyond its legislative session Arnault cannot invoke his right to selfincrimination; it is for the court to determine
  • Art. VI, Sec. 13 par. 5 (ARMM) The Regional Assembly or any of its committees may conduct inquiries or public consultations in aid of legislation in accordance with its rules. In connection therewith, it shall have the power to issue subpoenae or subpoenae duces tecum to compel the attendance of and the production of papers, documents or things by witnesses or persons under investigation by the assembly, itself, or by any of its committees.
  • It shall also have the right to cite witnesses or persons under investigation for contempt for refusal to testify before it or before any of its committees or to produce papers, documents or things required by the assembly or any of its committees. The rights of persons appearing in or affected by such inquiries shall be respected.
  • Question Hour (Art VI, Sec. 14 ARMM)
  • Art. VI, Sec. 14 (ARMM) Questioning Cabinet Members and Other Officials. – The Regional Assembly may, in aid of legislation and with the express consent of the Regional Governor, require the presence of the regional cabinet members or their deputies as its rules shall provide, for questioning on matters falling within the scope of their powers and functions.
  • The Regional Assembly may require any regional commission, office, or agency of the central government or national government with offices in the autonomous region to explain matters relating to the exercise of its powers and functions.
  • To Confirm Certain Appointments ( Art. VII Sec. 2, par. 3 ARMM)
  • Art. VII, Sec. 2, p. 3 (ARMM) The Regional Governor shall appoint the members of the cabinet subject to confirmation by the Regional Assembly.
  •  Power with Regard to Utilization of Natural Resources (Art. XII, Sec. 1 and Art. XII Sec. 8 ARMM)
  • Art. XII Sec. 1 (ARMM) Regional Economy and Conservation of Patrimony – Consistent with the Constitution and existing laws the Regional Assembly may enact laws pertaining to the regional economy and patrimony that are responsive to the needs of the region.
  • The Regional Government may not lower the standards required by the central government or national government for the protection, conservation, and enhancement of the natural resources.
  • Art. XII, Sec. 8 (ARMM ) Rules, Regulations and Fees. – The Regional Assembly shall by law regulate the exploration, utilization, development, and protection of the natural resources, including the mines, and minerals, except the strategic minerals as provided in this Organic Act.
  • The Regional Government shall, pursuant to the said law prescribe the rules and regulations and impose regulatory fees in connection therewith.
  • Upon the enactment of the said law and the effectivity of such rules and regulations, the fees imposed by the Regional Government shall replace those that had been imposed by the central government or national government.
  • LEGISLATIVE RESEARCH: AN ESSENTIAL TOOL OF PARLIAMENTARY DRAFTING
  • GUIDE QUESTIONS IN LEGISLATIVE RESEARCH AND BILL DRAFTING
  •   What is the prevailing law governing the subject matter of the research or bill and resolution? What provisions of the constitution are relevant to the subject matter?
  •   What is the controlling jurisprudence? What is the government policy on the matter?
  •  What is the stand of the concerned government agency, the NGOs, interest groups and other stakeholders on the subject?
  •   Had there been a similar bill filed in the previous Congresses? Has a bill been filed in the present Congress?
  • SOURCES OF INFORMATION WHERE - when one sets about searching for legal information where does the person go?
  •  Libraries   School Libraries Government Libraries (National Library, Senate Library, House of Representatives Library, Supreme Court Library, etc.)
  •         Computer-based legal research system On-line source/Web Source Research www. congress.gov.ph www. senate.gov.ph www. judiciary.gov.ph www. chanrobles.com www.lawphil.net www.gov.ph
  • Software Programs  LEX LIBRIS  LEXIS - (Latest software programs that provide Philippine Laws and Jurisprudence together with U.S. Federal and state court cases, legislation, law reviews and journals)
  •  Government Agency/Stakeholders concerned
  • WHO – Research work can be expedited by consulting the right people
  •  Librarian  Colleague  Professors  Consultant  Lecturer  Government Employees
  • WHEN – The information may be obtained by attending or participating in:
  • Seminars Symposia Conventions Conferences Dialogues
  • WHAT – The information may be in any type of legal materials, such as:
  •  Textbooks  Legal Forms  Text of law  Journals  Citators  Dictionaries  Law Reports
  • STEPS IN PREPARING RESEARCH REPORTS  STEP 1. The First Step is always to determine the primary authority that governs the subject matter. PRIMARY AUTHORITY All three branches of government generate primary authority
  •    The statutes passed by Congress; The rules promulgated by the Executive; The decisions of the Supreme Court are primary authority.
  •  The Constitution The first and foremost source of primary authority is the Constitution. It is the supreme law of the land. (The Organic Act for the Autonomous Region in the Muslim Mindanao is the Primary Authority for the ARMM)
  • Treaties When properly ratified and brought into force a treaty may not be infringed by domestic legislation.
  • Statutes Proper Acts No. 1 to Acts No 4275 (19001935)  Commonwealth Acts No. 1 to Act 733 (1935-1946)  Republic Acts No. 1 to RA No. 6635 (1946-1972)  Presidential Decrees 1 to PD 2036 (1972-1986)  Batas Pambansa No. 1 to No 889 (1978-1985)  Republic Act 6636 to RA10606(1987-2013) 
  • Local Legislation Ordinances and laws, passed by the ARMM Regional Assembly, provinces, cities, municipalities and barangays
  • Subordinate Legislation Letter of Instructions (Martial Law)  Letters of Implementations (Martial Law)  Proclamation (Martial Law)  Executive Orders  Implementing Rules and Regulations 
  • Congress and Supreme Court Rules  Rules of the House of Representatives and the Senate  Rules of Criminal Procedure  Rules of Summary Procedure  Special Proceedings Rules
  • Judicial Precedents  Philippine Reports  Supreme Court Reports Annotated (SCRA) (1961Present)  Supreme Court Advance Decisions (SCAD)
  • STEP 2. The next step is finding secondary authority  SECONDARY AUTHORITY is anything other than primary authority that could be used as basis when the primary authority is unclear or unavailable. This includes:
  •  Records of the Constitutional Commission, Constitutional Convention, Constituent Assembly  Legislative History of a Statute
  •  Commentaries of legal experts as found in legal books and journals of law schools  Case digests  Encyclopedias  Dictionaries
  •  STEP 3. The third step is to find other research materials. These materials could be used to provide other information which may have been overlooked. These materials include:
  •    Loose Leaf Pamphlets from Government Agencies; Periodicals Major Studies from agencies, associations, public interest groups, unions Proposals from groups that have interest in the subject.
  • THE CHECKLIST OF THE BILL DRAFTER  Constitutionality Check  Existing Law Check  Identical Bill Check  Foreign Law Check  Other sources
  • PARTS OF A BILL
  • The Explanatory Note That part which serves to explain the intention of the lawmaking body in presenting the bill and which announces the purposes or objects of the bill.
  • G.R. NO. 169435, February 27, 2008 MUNICIPALITY OF NUEVA ERA, ILOCOS NORTE, represented by its Municipal Mayor, CAROLYN ARZADON-GARVIDA, petitioner, vs. MUNICIPALITY OF MARCOS, ILOCOS NORTE, represented by its Municipal Mayor, SALVADOR PILLOS, and the HONORABLE COURT OF APPEALS, respondents
  • According to the decision of the Supreme Court: (T) his conclusion on the intention of the legislature is bolstered by the explanatory note of the bill which paved the way for the creation of Marcos. Said explanatory note mentioned only Dingras as the mother municipality of Marcos.
  • Where there is ambiguity in the statute, as in this case, courts may resort to the explanatory note to clarify the ambiguity and ascertain the purpose and intent of the statute. (Agapalo, Statutory Construction, 3rd ed., 1995, p. 73 citing Basiana v Luna, G.R. No. 34135, February 24, 1981, 103 SCRA 49 [1981]; Libares v. Exe. Secretary, G.R. No. 21505, October 24, 1963, 9 SCRA 261 [1963]; People v. Olarte, 108 Phil. 756 [1960].)
  • The Title Announces the subject of a bill  The purpose is to apprise the legislators of the purposes, nature and scope of the law  To prevent the enactment of matters which have not received the notice, action and study of the legislators and  The public 
  •      Not part of the law Not the law but the name given to the law by the makers Does not create , repeal or put the Act into effect An aid in the interpretation as to the intent of legislators Must be made concise but broad enough to indicate the scope of the bill
  • The Enacting Clause That part of the bill immediately preceding the body of the proposed measure which secures uniformity on the style of the proposed law and identifies the authority by which the same in enacted. The form of enacting clause used by Congress is “Be it enacted by the Senate and the House of Representatives of the Philippines in Congress Assembled”
  • The Body of the Bill The principal portion of the bill containing the proposed law itself.
  • Questions when drafting the body of a bill       What will the law do? Who will do it? Must an office be created to perform it? How will it be done? Is there a period or time within which to perform the law? Liabilities of persons, Penalties, Fines? Appropriations, sources of money, fund?
  • The Effectivity Clause That portion which provides for the time when the proposed law once approved shall take effect.
  • New Civil Code of the Philippines “ Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. “ “ This Code shall take effect one year after its publication.”
  • Jurisprudence Tañada V. Tuvera, 136 SCRA 27 (April 25, 1985); Id., Motion for Reconsideration) 146 SCRA 446 (December 29, 1986) In the case of Tañada v. Tuvera, the Supreme Court had the occasion to interpret the phrase “unless otherwise provided” found in Article 2 of the Civil Code. The Court debunked the argument that publication is not necessary when the laws (decrees) themselves declare that they are to become effective immediately upon their approval.
  • Executive 292 (July Order No. 25, 1987) “Sec. 18. When Laws Take Effect. – Laws shall take effect after fifteen (15) days following the completion of their publication in the Official Gazette or in a newspaper of general circulation, unless it is otherwise provided.”
  •  TOPIC : ANCESTRAL DOMAIN AND MINING CLAIMS II. CONSTITUTIONAL PROVISION: Sec.12, Art. XII (National Economy and Patrimony) (1987 Constitution)
  • III.  LAWS: R.A. 8371 – AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENEOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFORE, AND FOR OTHER PURPOSES
  • R.A. 7942 – AN ACT INSTITU TING A NEW SYSTEM OF MINERAL RESOURCES EXPLORATION, DEVELOPMENT, UTILIZATION AND CONSERVATION
  • JURISPRUDENCE ISAGANI CRUZ V. SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, ETAL. G.R. NO. 135385, DECEMBER 6, 2000
  • HOW TO AMEND A LAW
  • Ramseyer Rule (1929)  US Congress Is a legislative drafting rule which provides that whenever a committee reports a bill or joint resolution repealing or amending any statute or part thereof to be repealed, as well as a comparative print showing the proposed omissions and insertions by striken-through type and italics, parallel columns, or other appropriate typographical devices. 
  • PURPOSE The purpose of the Ramseyer rule is to inform Members of any changes in existing law to occur through proposed legislation.
  • In Congress, all proposed amendatory bills comply with the rule by enclosing in brackets all words, phrases, numbers and punctuation marks sought to be deleted and printing in all capital letters those intended to be added or inserted.
  • The object is to be fairly apprise the legislators of the changes proposed to be made on existing laws, thereby affording them more exhaustive and intelligent deliberations on bills under consideration.
  • Sample of an Amendatory Bill
  • ‘AN ACT PROVIDING FOR STIFFER FINES AND PENALTIES FOR THE ILLEGAL DISPOSAL OF WASTE MATERIALS, AMENDING FOR THE PURPOSE REPUBLIC ACT 9003 KNOWN AS THE “ECOLOGICAL SOLID WASTE MANAGEMENT ACT OF 2000”
  • Section 1. Section 49 of Republic Act 9003, is hereby amended to read as follows: “Sec.49. Fines and Penalties. – (a) Any person who violates Sec. 48 paragraph (1) shall, upon conviction, be punished with a fine of not less the [Three] FIVE hundred pesos [(P300.00)] (P500.00) but not more than One Thousand FIVE HUNDRED Pesos [(P1,000.00)] (P1,500.00) or render community service for not less than [one] FIFTEEN [(1)] (15) dayS to not more than [fifteen] THIRTY [(15)] (30) days to LGU where such prohibited acts are committed, or both;…..
  • THANK YOU AND GOD BLESS!