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Atty. ARIS S. MANGUERA

MANGUERA OUTLINE
CONSTITUTIONAL LAW I
COMPREHENSIVE VERSION 2010

Branch of public law1 which deals with the


organization and operation of the governmental
PRELIMINARIES organs of the state and defines the relations of the
state with the inhabitants of its territory.2

I. Political Law B. Subdivisions of Political Law


A. Definition of Political Law 1. Law of public administration
B. Subdivisions of Political Law 2. Constitutional law
C. Basis of Philippine Political Law 3. Administrative law
4. Law of public corporations3
II. Constitution
A. Definition of Constitution C. Basis of Philippine Political Law
B. Philosophical View of the Constitution
C. Purpose of Constitution The principles of government and political law of
D. Classifications of Constitutions the Philippines are fundamentally derived from
E. Qualities of a Good Written American jurisprudence. This conditions was the
Constitution inevitable outcome of the establishment of the
American rule in the Philippines. When Spain
F. Essential Parts of a Good Written ceded the Phils. to the US, the Spanish Political
Constitution laws were automatically displaced by those of the
G. Permanency and Generality of US.4
constitutions
H. Interpretation/Construction of
II. CONSTITUTION
Constitution
I. Brief Constitutional History
J. The 1987 Constitution A. Definition of Constitution

III. Constitutional Law Comprehensive Definition: That body of rules


A. Concept of Constitutional Law and maxims in accordance with which the powers
B. Types of Constitutional Law of sovereignty are habitually exercised.5 (Cooley)

IV. Basic Concepts American sense: A constitution is a written


A. Constitutionalism instrument by which the fundamental powers of
B. Philippine Constitutionalism government are established, limited, and defined
C. Doctrine of Constitutional Supremacy and by which these powers are distributed among
D. Republicanism several departments, for their more safe and useful
E. Principle of Separation of Powers exercise, for the benefit of the body politic. (Justice
F. System of Checks and Balances Miller quoted by Bernas)
G. Judicial Review
H. Due Process With particular reference to the Philippine
Constitution: That written instrument enacted by
I. POLITICAL LAW
1
Public law is understood as dealing with matters affecting the state,
the act of state agencies, the protection of state interests. Private law
A. Definition of Political Law deals with the regulation of the conduct of private individuals in their
relation with one another.
As thus conceived public law consists of political law, criminal law
and public international law. Private law includes civil and
commercial law.
2
Vicente Sinco, Philippine Political Law 1, 10th ed., 1954.
3
Vicente Sinco, Philippine Political Law 1, 10th ed., 1954.
4
Vicente Sinco, Philippine Political Law 2, 10th ed., 1954.
5
This definition is comprehensive enough to cover written and
unwritten constitutions. (Cruz, Constitutional Law)

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direct action of the people by which the


fundamental powers of the government are C. Purpose of the Constitution
established, limited and defined, and by which
those powers are distributed among several To prescribe the permanent framework of a system
departments for their safe and useful exercise for of government, to assign to the several
the benefit of the body politic. (Malcolm, Philippine departments their respective powers and duties,
Constitutional Law, p. 6) and to establish certain first principles on which the
government is founded.9 (11 Am. Jur. 606 cited in
In other words: It is the supreme written law of Cruz)
the land.6
Why would a society generally committed to
B. Philosophical View of the Constitution majority rule choose to be governed by a
document that is difficult to change?
The Constitution is a social contract. (Marcos v. a) To prevent tyranny of the majority
Manglapus) b) Society’s attempt to protect itself from
itself.
Viewed in the light of the Social Contract Theories, c) Protecting long term values from short
the Constitution may be considered as the Social term passions.10
Contract itself in the sense that it is the very basis
of the decision to constitute a civil society or State, D. Constitution as a Municipal Law
breathing life to its juridical existence, laying down
the framework by which it is to be governed,
A constitution is a municipal law. As such, it is
enumerating and limiting its powers and declaring
binding only within the territorial limits of the
certain fundamental rights and principles to be
sovereignty promulgating the constitution.11
inviolable.
E. Classification
The Constitution as a political document may be
considered as the concrete manifestation or A. (1) Rigid12
expression of the Social Contract or the decision to (2) Flexible
abandon the ‘state of nature’ and organize and B. (1) Written13
found a civil society or State. (2) Unwritten
C. (1) Evolved14
According to Dean Baustista, “the Constitution is a (2) Enacted
social contract between the government and the D. (1) Normative- adjusts to norms
people, the governing and the governed.”7 (ASM: I (2) Nominal –not yet fully operational
don’t necessarily agree with this statement. As a (3) Semantic-perpetuation of power
social contract, the Constitution, I think is a The Constitution of the Philippines is written,
contract between and among the people conventional and rigid.
themselves and not between the government and
the people. The government is only an “effect” or 9
consequence of the social contract of the people.
10
In other words, the government is only a creature Andres D. Bautista, Introduction to Constitutional Law 1, Slide 4
of the Constitution. Hence, the government cannot June 16, 2007.
11
be a party to a contract that creates it. In the 1987 Bernas Commentary, p 5(2003 ed).
Philippine Constitution, it reads, “We the sovereign 12
Rigid constitution is one that can be amended only by a
Filipino people…in order to build a …society and formal and usually difficult process; while a flexible
establish a government… ordain and promulgate constitution is one that can be changed by ordinary
this Constitution.”) legislation. (Cruz, Constitutional Law p 5)
13
A written constitution is one whose precepts are embodied
According to Dean Bautista, “the Constitution in one document or set of documents; while an unwritten
reflects majoritarian values but defends constitution consists of rules which have not been integrated
minoritarian rights.”8 into a single, concrete form but are scattered in various
sources, such as statues of a fundamental character, judicial
6 decisions, commentaries of publicists, customs and traditions,
See People v. Pomar, 46 Phil 440. Bernas Commentary xxxvii and certain common law principles. (Cruz, Constitutional Law
(2003 ed). pp 4-5)
7
Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3 14
An enacted or conventional constitution is enacted,
June 16, 2007. formally struck off at a definitive time and place following a
8
Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3 conscious or deliberate effort taken by a constituent body or
June 16, 2007.; Majoritarianism is a traditional political philosophy ruler; while a cumulative or evolved is the result of political
which asserts that a majority of the population is entitled to a certain evolution, not inaugurated at any specific time but changing by
degree of primacy in the society, and has the right to make decisions accretion rather than by systematic method. (Cruz,
that affect the society. Constitutional Law p 5)

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F. Qualities of good written constitution


1. Broad15 J. Brief Constitutional History
1. Malolos Constitution
2. Brief16 2. The American Regime and the Organic Acts
3. Definite17 3. The 1935 Constitution
4. The Japanese (Belligerent) Occupation
G. Essential parts of a good written constitution 5. The 1973 Constitution
1. Constitution of government18 6. The 1987 Constitution

2. Constitution of liberty19 K. The 1987 Constitution


3. Constitution of sovereignty20
[Social and economic rights] The 1987 Constitution is the 4th fundamental law to
govern the Philippines since it became
H. Interpretation/Construction of the Constitution21 independent on July 4, 1946.

In Fransisco v HR, the SC made reference to the Background of the 1987 Constitution
use of well-settled principles of constitutional 1. Proclamation of the Freedom Constitution
construction, namely: a. Procalamation No. 1, February 25, 1986,
1. Verba Legis22 announcing that she (Corazon Aquino) and
VP Laurel were assuming power.
2. Ratio legis et anima23 b. Executive Order No.1, (Febrauary 28, 1986)
3. Ut magis valeat quam pereat24 c. Procalamation No.3, March 25, 1986,
announced the promulgation of the
I. Permanence and Generality of constitutions Provisional (Freedom) Constitution, pending
the drafting and ratification of a new
A constitution differs from a statute, it is intended Constitution. It adopted certain provisions in
not merely to meet existing conditions, but to the 1973 Constitution, contained additional
govern the future. articles on the executive department, on
government reorganization, and on existing
It has been said that the term ‘constitution’ implies laws. It also provided of the calling of a
an instrument of a permanent nature.25 Constitutional Commission to be composed
of 30-50 members to draft a new
15
Broad. Because it provides for the organization of the entire Constitution.
government and covers all persons and things within the territory of 2. Adoption of the Constitution
the State and also because it must be comprehensive enough to a. Proclamation No. 9, creating the
provide for every contingency. (Cruz, Constitutional Law pp 5-6) Constitutional Commission of 50
16
Brief. It must confine itself to basic principles to be implemented members.
with legislative details more adjustable to change and easier to b. Approval of the draft Constitution by the
amend. (Cruz, Constitutional Law pp 4-5) Constitutional Commission on October 15,
17
Definite. To prevent ambiguity in its provisions which could result 1986
in confusion and divisiveness among the people. (Cruz, c. Plebiscite held on February 2, 1987
Constitutional Law pp 4-5) d. Proclamation No. 58, proclaiming the
18
Constitution of Government. The series of provisions outlining ratification of the Constitution.
the organization of the government, enumerating its powers, laying 3. Effectivity of the 1987 Constitution: February 2,
down certain rules relative to its administration and defining the 1987
electorate. (ex. Art VI, VII, VIII and IX)
19
Constitution of Liberty. The series of proscriptions setting forth Features of 1987 Constitution26
the fundamental civil and political rights of the citizens and imposing
limitations on the powers of government as a means of securing the
1. The new Constitution consists of 18
enjoyment of those rights. (Ex. Article III) articles and is excessively long compared to
20
Constitution of Sovereignty. The provisions pointing out the the 1935 and 1973 constitutions.
mode or procedure in accordance with which formal changes in the 2. The independence of the judiciary
fundamental law may be brought about. (Ex. Art XVII) has been strengthened with new provisions
21
Antonio B. Nachura, Outline/Reviewer in Political Law (2006 for appointment thereto and an increase in
ed.) its authority, which now covers even political
22
Plain meaning rule. Whenever possible the words used in the questions formerly beyond its jurisdiction.
Constitution must be given their ordinary meaning except when 3. The Bill of Rights of the
technical terms are employed. Commonwealth and Marcos constitutions
23
Interpretation according to spirit. The words of the Constitution has been considerably improved in the 1987
should be interpreted in accordance with the intent of the framers.
24
The constitution has to be interpreted as a whole.
25 26
Ruling Case Law, vol.6, p16) Cruz, Political Law.

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Constitution and even bolstered with the different constitutional settings and needs."
creation of a Commission of Human Rights. Indeed, although the Philippine Constitution
can trace its origins to that of the United
III. CONSTITUTIONAL LAW States, their paths of development have long
since diverged. In the colorful words of Father
Bernas, "[w]e have cut the umbilical cord."”
A. Concept of Constitutional Law
(But see the case of Neri v. Senate Committees
Constitutional law is a body of rules resulting from where the Court cited many American cases)
the interpretation by a high court of cases in which
the validity, in relation to the constitutional IV. BASIC CONCEPTS
instrument, of some act of government…has been
challenged. (Bernas Commentary xxxviii) Constitutionalism
Philippine Constitutionalism
Constitutional law is a term used to designate the Doctrine of Constitutional Supremacy
law embodied in the constitution and the legal Republicanism
principles growing out of the interpretation and Principle of Separation of Powers
application made by courts of the constitution in System of Checks and Balances
specific cases. (Sinco, Phil. Political Law) Judicial Review
Due Process
Constitutional law is the study of the maintenance
of the proper balance between authority A. Constitutionalism
represented by the three inherent powers of the
State and liberty as guaranteed by the Bill of Constitutionalism refers to the position or practice
Rights. (Cruz, Constitutional Law) that government be limited by a constitution.

Constitutional law consist not only of the The doctrine or system of government in which the
constitution, but also of the cases decided by the governing power is limited by enforceable rules of
Supreme Court on constitutional grounds, i.e., law, and concentration of power is limited by
every case where the ratio decidendi is based on a various checks and balances so that the basic
constitutional provision. (Defensor-Santiago, rights of individuals and groups are protected.
Constitutional Law)
B. Philippine Constitutionalism
B. Types of Constitutional law27
1. English type28 Constitutionalism in the Philippines, understood in
2. European continental type29 the American sense, dates back to the ratification
3. American type30 of Treaty of Paris. Then it grew from a series of
organic documents. These are:
C. Weight of American Jurisprudence (1) Pres. Mc Kinleys’ Instruction to the
Second Phil. Commission,
In the case of Francisco v. HR, (2003) The Supreme (2) Phil. Bill of 1902,
Court speaking through Justice Carpio Morales opined: (3) Phil. Autonomy Act of 1916. (Bernas,
“American jurisprudence and authorities, much Commentary xxxviii)
less the American Constitution, are of dubious
application for these are no longer controlling C. Doctrine of Constitutional Supremacy (2004 Bar
within our jurisdiction and have only limited Exam Question)
persuasive merit insofar as Philippine
constitutional law is concerned. As held in If a law violates any norm of the constitution, that
the case of Garcia vs. COMELEC, "[i]n law is null and void; it has no effect. (This is an
resolving constitutional disputes, [this Court] overstatement, for a law held unconstitutional is
should not be beguiled by foreign not always wholly a nullity)
jurisprudence some of which are hardly
applicable because they have been dictated by The American case of Marbury v. Madison laid
down the classic statement on constitutional
27
Vicente Sinco, Philippine Political Law 67, 10th ed., 1954. supremacy” “It is a proposition too plain to be
28 contested, that the Constitution controls any
Characterized by the absence of a written constitution.
29 legislative act repugnant to it.”
There is a written constitution which gives the court no power to
declare ineffective statutes repugnant to it.
30
Legal provisions of the written constitution are given effect
through the power of the courts to declare ineffective or void
ordinary statutes repugnant to it.

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Constitutional supremacy produced judicial American sovereignty in the Philippines, the


review.31 principle was introduced as an inseparable feature
of the governmental system organized by the
D. Republicanism United States in this country.37

The essence of republicanism is representation Limitations on the Principle


and renovation, the selection by the citizenry of a 1. System of Checks and Balances
corps of public functionaries who derive their 2. Existence of overlapping powers38
mandate from the people and act on their behalf,
serving for a limited period only, after which they F. Checks and Balances
are replaced or retained at the option of their
principal.32 The Constitution fixes certain limits on the
(More discussion of Republicanism under Article II) independence of each department. In order that
these limits may be observed, the Constitution
E. Principle of Separation of Powers gives each department certain powers by which it
may definitely restrain the other from exceeding
Essence. In essence, separation of powers means their authority. A system of checks and balances is
that legislation belongs to Congress, execution to thus formed.39
the executive, settlement of legal controversies to
the judiciary. Each is prevented from invading the To carry out the system of checks and balances,
domain of others. (Bernas, Commentary 656, 2003 the Constitution provides:
ed.) 1. The acts of the legislative department
Division and Assignment. Its starting point is the have to be presented to the executive for
assumption of the division of the functions of the approval or disapproval.
government into three distinct classes—the 2. The executive department may veto
executive, the legislative and the judicial. Its the acts of the legislature if in its judgment
essence consists in the assignment of each class they are not in conformity with the
of functions to one of the three organs of Constitution or are detrimental to the
government.33 interests of the people.
3. The courts are authorized to
Theory. The theory is that “a power definitely determine the validity of legislative
assigned by the Constitution to one department measures or executive acts.
can neither be surrendered nor delegated by 4. Through its pardoning power, the
that department, nor vested by statute in another executive may modify or set aside the
department or agency.”34 judgments of the courts.

Reason. The underlying reason of this principle is


5. The legislature may pass laws that in
effect amend or completely revoke
the assumption that arbitrary rule and abuse of
decisions of the courts if in its judgment
authority would inevitably result from the
they are not in harmony with its intention
concentration of the three powers of government in
or policy which is not contrary to the
the same person, body of persons or organ.35
Constitution.40
6. President must obtain the
More specifically, according to Justice Laurel, the
concurrence of Congress to complete
doctrine of separation of powers is intended to:
certain significant acts.
1. Secure action
2. To forestall overaction 7. Money can be released from the
3. To prevent despotism treasury only by authority of Congress.41
4. To obtain efficiency36
G. Judicial Review
History. Separation of powers became the pith and
core of the American system of government largely
through the influence of the French political writer 37
US v. Bull, 15 Phil 7, 27.
Montesquieu. By the establishment of the 38
The power of appointment is one of these. Although this is
executive in nature, it may however be validly exercised by any of
31 the three departments in selecting its own subordinates precisely to
Defensor Santiago, Constitutional Law 7.
32 protect its independence. (Vicente Sinco, Philippine Political Law
Cruz, Political Law. 136, 10th ed., 1954).
33
Vicente Sinco, Philippine Political Law 131, 10th ed., 1954. 39
Vicente Sinco, Philippine Political Law 135, 10th ed., 1954.
34
Williams v. US, 289 US 553 (1933). 40
Tarlac v. Gale, 26 Phil. 338 cited in Vicente Sinco, Philippine
35
Vicente Sinco, Philippine Political Law 131, 10th ed., 1954. Political Law 135, 10th ed., 1954.
36 41
Pangasinan Transportaion Co. v. PSC, 40 O.G., 8th Supp. 57. Bernas, Commentary 656, 2003 ed.

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Definition. Judicial review refers to the power of arbitrariness on the part of the government.
the courts to test the validity of governmental acts Observance of both substantive and procedural
in light of their conformity with a higher norm (e.g. rights is equally guaranteed by due process.48
the constitution). (More discussion of Due Process under Article III)

Expression of Constitutional Supremacy.


Judicial review is not an assertion of superiority by
the courts over the other departments, but merely
an expression of the supremacy of the
Constitution.42 Constitutional supremacy produced
judicial review, which in turn led to the accepted
role of the Court as “the ultimate interpreter of the
Constitution.”43

Judicial Review in Philippine Constitution.


Unlike the US Constitution44 which does not
provide for the exercise of judicial review by their
Supreme Court, the Philippine Constitution
expressly recognizes judicial review in Section 5
(2) (a) and (b) of Article VIII of the Constitution.
(More discussion of Judicial Review under Article
VIII)

H. Due Process

Origin: By the 39th chapter of the Magna Carta


wrung by the barons from King John, the despot
promised that “no man shall be taken, imprisoned
or disseized or outlawed, or in any manner
destroyed; nor shall we go upon him, nor send him,
but by the lawful judgment of his peers or by the
law of the land.”
In 1335, King Edward III’s Statute 28 declared that
“no man, of what state or condition whoever be,
shall be put out of his lands, or tenements, nor
taken, nor imprisoned, nor indicted, nor put to
death, without he be brought in to answer by due
process of law.” It is this immortal phrase that has
resounded through the centuries as the formidable
champion of life, liberty and property in all-freedom
loving lands. (Cruz)

Definition45: Embodiment of the sporting idea of


fair play.46 It is the responsiveness to the
supremacy of reason, obedience, to the dictates of
justice.47 Due process is a guaranty against

42
Angara v. Electoral Commission, 63 Phil 139.
43
See Cooper v. Aaron, 358 US 1 (1956)
44
The case of Marbury v. Madison established the doctrine of
judicial review as a core legal principle in American constitutional
system: “So if a law be in opposition to the constitution; of both the
law and the constitution apply to a particular case, so that the court
must either decide that case conformably to the law, disregarding the
constitution; or conformably to the constitution, disregarding the law;
the court must determine which of these conflicting rules governs the
case. This is the very essence of judicial duty.”
45
The idea that laws and legal proceedings must be fair. Due process
is best defined in one word- fairness.
46
Frankfurter, Mr. Justice Holmes and the Supreme Court pp
32-33
47 48
Ermita-Malate Hotel & Motors Association v. City of Manila (Tupas v. CA)

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independence and democracy under the rule of law


and the regime of truth, justice, freedom, love,
PREAMBLE equality and peace.”

I. Meaning III. Social Contract Theory


II. Function
III. Social Contract Theory ASM: I submit that the Preamble is somehow a
manifestation of the Social Contract Theory as it
I. Meaning states: “We the sovereign Filipino people…in
order to build a…society and establish a
government… do ordain and promulgate this
Preamble means “to walk before.” (Praeambulus:
constitution.”
Walking in front)

II. Function
Function
Origin/Authorship
Scope and Purpose

A. Functions
1. It sets down the origin, scope and purpose of
the Constitution.49
2. It enumerates the primary aims and expresses
the aspirations of the framers in drafting the
Constitution.50
3. Useful as an aid in the construction and
interpretation of the text of the Constitution.51

Thus, Preamble is a source of light.52 It is not a


source of rights or obligations. (Jacobson v.
Massachusetts, 197 U.S. 11, 22 (1905).

B. Origin/Authorship

Its origin, or authorship, is the will of the “sovereign


Filipino people.”

The identification of the Filipino people as the


author of the constitution also calls attention to an
important principle: that the document is not just
the work of representatives of the people but of the
people themselves who put their mark of approval
by ratifying it in a plebiscite.53

C. Scope and Purpose

“To build a just and humane society as to establish


a government that shall embody our ideals and
aspirations, promote the common good, conserve
and develop our patrimony, and secure to
ourselves and our posterity the blessings of

49
Bernas Primer at 1 (2006 ed.)
50
Cruz, Philippine Political Law, p. 49 (1995 ed).
51
Cruz, Philippine Political Law, p. 49 (1995 ed).
52
Bernas Primer at 1 (2006 ed.)
53
Bernas Commentary, p 4(2003 ed).

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C. Significance of Territory

ARTICLE I: NATIONAL TERRITORY Control over territory is of the essence of a state


(Las Palmas case). Certain rights and authority are
I. Territory exercised within the state’s territory.
II. Archipelago
III. Archipelagic Principle 1. State’s sovereignty is over its:
o Land territory (and airspace above it)
I. Territory o Internal Waters (and airspace above it
and seabed under it)
o Archipelagic Waters( and airspace
A. What is Territory above it and seabed under it)
o Territorial Sea (and airspace above it
Territory is the fixed portion of the surface of the and seabed under it)
earth inhabited by the people of the state.54 2. The coastal state has a right against innocent
passage57 in its internal waters.
Territory as an element of a state means an area 3. The coastal state exercises authority over the
over which a state has effective control.55 area (contiguous zone) to the extent necessary to
prevent infringement of customs, fiscal, immigration
B. What does territory include? or sanitation authority over its territorial waters or
territory and to punish such infringement.
Territory includes land, maritime areas, airspace 4. The coastal state has rights over the economic
and outer space.56 resources of the sea, seabed and subsoil.

Airspace D. Scope of Philippine National Territory Defined in


o Each state has exclusive jurisdiction Article I, Section 1.
over the air above its territory. It includes:
o The consent for transit must be (1) The Philippine archipelago;
obtained from the subject nation. (2) All other territories over which the Philippines
o Aircrafts not engaged in international has sovereignty or jurisdiction;
air service, shall have the right to make (3) The territorial sea, seabed, subsoil, insular
flights into or in transit non-stop across its shelves and other submarine areas
territory and to make steps for non-traffic corresponding to (1) and (2). Moreover, (1)
purposes without the necessity of obtaining and (2) consist of terrestrial, fluvial and aerial
prior permission and subject to the right of domains.58
the State flown over to require landing.
(Chicago Convention on International Civil E. Territories Covered under the Definition of Article
Action) 1
1. Those ceded to the US by virtue of the Treaty
Outerspace
of Paris on December 10, 1898.
o Sovereignty over airspace extends
only until where outerspace begins. (50-100 2. Those defined in the treaty concluded between
miles from earth) the US and Spain (Treaty of Washington) on
November 7, 1990, which were not defined in
Different areas beyond the land territory the Treaty of Paris, specifically the islands of
o Territorial Seas (12 N.mi from Cagayan, Sulu and Sibuto.
baseline) 3. Those defined in the treaty concluded on
o Contiguous Zone (24 N.mi from January 2, 1930, between the US and Great
baseline) Britain (Treaty with Great Britain), specifically
o Exclusive Economic Zone/Patrimonial the Turtle and Mangsee islands.
Sea (200 N.mi from baseline) 4. The island of Batanes, which was covered
o High seas (Waters beyond territorial under a general statement in the 1935
sea) Constitution.

54
Cruz, Philippine Political Law, p. 16 (1995 ed).
55
Bernas, An Introduction to Public International Law, 97 (2002 57
ed). Passage that is not prejudicial to the peace, good order or
56 security of the coastal state.
Bernas, An Introduction to Public International Law, 97 (2002
58
ed). Bernas Primer at 4 (2006 ed.)

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5. Those contemplated in the phrase “belonging high sea from the rights of foreign vessel to transit
to the Philippines by historic right or legal title” passage for international navigation.”
in the 1973 Constitution.59
Bernas: The reservation is ad cautelam. The claim
E. “All other territories which the Philippines has made in the Constitution took effect in 1973 before
sovereignty and jurisdiction.” the 1982 Law of the Sea Convention was
formulated. Article 8(2) of the Convention itself
says that the new rule on archipelagic waters
This includes any territory which presently belongs
applies only to “areas which had not previously
or might in the future belong to the Philippines
been considered as” internal waters.61
through any of the internationally modes of
acquiring territory.
D. Philippine Archipelago
o Batanes islands
o Those belonging to the Philippines by
The Philippine archipelago is that body of water
historic right or legal title (Sabah, the studded with islands which is delineated in the
Marianas, Freedomland) Treaty of Paris, modified by the Treaty of
Washington and the Treaty of Great Britain.
II. Archipelago
Archipelago III. Archipelagic Principle
Archipelagic State Archipelagic Doctrine
Archipelagic Waters Archipelago Doctrine of Article I
Philippine Archipelago Elements of Archipelagic Doctrine
Purpose of Archipelagic Doctrine
A. Archipelago
A. Archipelagic Doctrine
Archipelago is a body of water studded with (1989 Bar Question)
islands.60
It is the principle whereby the body of water
B. Archipelagic State studded with islands, or the islands surrounded
with water, is viewed as a unity of islands and
Archipelagic state means a state constituted wholly waters together forming one integrated unit. For
by one or more archipelagos and may include this purpose, it requires that baselines be drawn by
other islands. (Article 46 (a) of UNCLOS) connecting the appropriate points of the “outermost
islands to encircle the islands within the
C. Archipelagic Waters archipelago. We consider all the waters enclosed
by the straight baselines as internal waters.62
According to UNCLOS, Archipelagic waters refers
to areas enclosed as internal waters by using the B. Elements of Archipelagic Doctrine
baseline method which had not been previously
considered as internal waters. (See Article 53 of
1. Definition of internal waters63
UNCLOS) 2. The straight line method of delineating the
territorial sea.
Article 8(2) of UNCLOS: Where the
establishment of a straight baseline in Straight Baseline Method- drawn connecting
accordance with the method set forth in Article selected points on the coast without departing to
7 has the effect of enclosing as internal waters any appreciable extent from the general direction
areas which had not previously been of the coast. RA 3046 and RA 5446 have drawn
considered as such, a right of innocent passage straight baselines around the Philippines.
as provided in this Convention shall exist in
those waters.
(The problem with the straight baseline method is
According to UNCLOS, in “archipelagic waters”, a that it conflicts with the Law of the Sea because it
right of innocent passage shall exist in these recognizes the right of innocent passage in
waters. But, the Philippines made a reservation, archipelagic waters. That is why we made a
thus, “ The concept of archipelagic waters is similar
to the concept of internal waters under the 61
Bernas Commentary, p 28(2003 ed).
Constitution of the Philippines, and removes straits 62
connecting these waters with the economic zone or Cruz, Philippine Political Law, p. 17 (1995 ed).
63
Internal waters refer to “all waters landwards from the
59 baseline of the territory.”
Cruz, Philippine Political Law, p. 18 (1995 ed).
60
Note: The Philippines considers all waters connecting the
Bernas Primer at 4 (2006 ed.) islands as internal waters.

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reservation. However, as Bernas pointed out, the coastal state may exercise control necessary to
reservation is ad cautelam) prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations within
C. Purposes of Archipelagic Doctrine its territory or territorial sea. (Article 33 of the
1. Territorial Integrity Convention on the Law of the Sea.)
2. National Security
3. Economic reasons The EEZ extends 200 nautical miles from the
baseline. The EEZ is recognized in the UN
It is said that the purpose of archipelagic doctrine is Convention on the Law of the Sea. Although it is
to protect the territorial integrity of the archipelago. not part of the national territory, exclusive
Without it, there would be “pockets of high seas” economic benefit is reserved for the country within
between some of our islands and islets, thus the zone.
foreign vessels would be able to pass through By virtue of PD 1599, the Philippine declares that it
these “pockets of seas” and would have no has sovereign rights to explore, exploit, conserve
jurisdiction over them. and manage the natural resources of the seabed,
subsoil, and superjacent waters. Other states are
D. Archipelago Doctrine in Article I, Section 1 prohibited from using the zone except for
(1989 Bar Question) navigation and overflight, laying of submarine
“The waters around, between and connecting the cables and pipeline, and other lawful uses related
islands of the archipelago, regardless of their to navigation and communication.
breadth and dimensions, form part of internal Q: Distinguish the flag state and the flag of
waters of the Philippines” convenience. (2004 Bar Question)

Q: Differentiate archipelagic waters, territorial Flag state means a ship has the nationality of the
sea and internal waters. (2004 Bar Question) flag of the state it flies, but there must be a genuine
A: link between the state and the ship. (Article 91 of
the Convention on the Law of the Sea)
According to UNCLOS, Archipelagic waters refers Flag of convenience refers to a state with which a
to areas enclosed as internal waters by using the vessel is registered for various reasons such as
baseline method which had not been previously low or non-existent taxation or low operating costs
considered as internal waters. (See Article 53 of although the ship has no genuine link with the
UNCLOS) state. (Harris, Cases and Materials on International
Law, 5th ed., 1998, p. 425.)
Territorial sea is an adjacent belt of sea with a
breadth of 12 nautical miles measured from the
baselines of a state and over which the state has
sovereignty. (Article 2, 3 of UNCLOS)

Internal waters refer to “all waters landwards from


the baseline of the territory.” Is from which the
breadth of territorial sea is calculated. (Brownlie,
Principles of PIL) No right of innocent passage for
foreign vessels exist in the case of internal waters.
(Harris, Cases and Material on International Law,
5th ed., 1998, p.407)

Under Section 1, Article I of the 1987 Constitution,


the internal waters of the Philippines consist of the
waters around between and connecting the islands
of the Philippine archipelago regardless of their
breadth and dimensions including the waters in
bays, rivers, and lakes.

Q: Distinguish briefly but clearly between the


contiguous zone and the exclusive economic
zone. (2004 Bar Question)

Contiguous zone is a zone contiguous to the


territorial sea and extends up to twelve nautical
miles from the territorial sea and over which the

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XXIX. Full Public Disclosure (§28)


ARTICLE II I. Principles and State Policies
DECLARATION OF PRINCIPLES AND
STATE POLICIES A. Description

I. Principles and State Policies This portion of the Constitution (Article II) might be
II. State as a Legal Concept called the basic political creed of the nation.64
PRINCIPLES
By its very title, Article II of the Constitution is a
III. Republicanism (§ 1)
declaration of principles and state policies. x x
IV. Incorporation Clause (§2) x.These principles in Article II are not intended to
V. Supremacy of Civilian be self-executing principles ready for enforcement
Authority(§3) through the courts.They are used by the judiciary
as aids or as guides in the exercise of its power of
VI. Defense of State (§4)
judicial review, and by the legislature in its
VII. Peace and Order(§5) enactment of laws. (Tanada v. Angara cited in
VIII. Separation of Church and Tondo Medical Center Employees Association v.
State (§6) CA, July 17, 2007)
STATE POLICIES
B. Function of the “Declaration of Principles and
IX. Independent Foreign
State Policies” in the Constitution
Policy(§7)
X. Freedom from Nuclear It is the statement of the basic ideological principles
Weapons(§8) and policies that underlie the Constitution. As such,
XI. Just and Dynamic Social the provisions shed light on the meaning of the
Order (§9) other provisions of the Constitution and they are a
XII. Promotion of Social Justice guide for all departments of the government in
the implementation of the Constitution.65
(§10)
XIII. Respect for Human C. What are Principles? What are Policies?
Dignity(§11)
XIV. Family, Rearing the Youth Principles are binding rules which must be
(§§ 12-13) observed in the conduct of the government.66
XV. Women(§14)
XVI. Health Policies are guidelines for the orientation of the
state.67
XVII. Balanced and healthful
Ecology(§§15-16) Note: The distinction between principles and
XVIII. Education, Science and polices is of little significance because not all of the
Technology(§17) six “principles” are self-executory and some of the
XIX. Labor(§18) “policies” already anchor justiciable rights.68
XX. Economy(§19) o Section 5 (maintenance of peace and
order…promotion of general werlfare…) is a
XXI. Private Sector and Private mere guideline. (Section 16 (right of the people
Enterprise (§20) to a balanced and healthful ecology is right-
XXII. Comprehensive Rural conferring provisions. (Oposa vs. Factoran)
Development (§21)
XXIII. Indigenous Cultural
Communities (§22)
XXIV. Sectoral Organizations (§23) 64
See Tanada v. Angara. See Vicente Sinco, Philippine Political Law
XXV. Communication and 116 (11th ed., 1962).
65
Information (§24) Bernas Primer at 7(2006 ed.)
XXVI. Local Autonomy (§25) 66
See IV RECORD OF THE CONSTITUTIONAL COMMISSION
768 and 580.
XXVII. Equal Access to 67
See IV RECORD OF THE CONSTITUTIONAL COMMISSION
Opportunities (§26)
768 and 580.
XXVIII. Public Service (§27) 68
Bernas Commentary, p 37(2003 ed).

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Section 1. The Philippines is a Territory as an element of a state means an area


democratic and republican State. over which a state has effective control.76
Sovereignty resides in the people and
all government authority emanates Read Province of North Cotabato v.
from them. Government of the Republic of the Philippines

3. Sovereignty
II. State as a Legal Concept
Definition
Definition of a State Kinds
Elements of a State Characteristics
Government Effects of Belligerent Occupation
Acts of State Effects of Change in Sovereignty
State Immunity Dominium v. Imperium
Jurisdiction
A. Definition of a State “Sovereignty resides in the people”

A state refers to a community of persons, more or a. Sovereignty


less numerous, permanently occupying a definite
portion of territory, independent of external control, The supreme and uncontrollable power inherent in
and possessing an organized government to which a State by which that State is governed.77
the great body of inhabitants render habitual
obedience.69 In auto-limitation terms: It is the property of a State-
force due to which it has the exclusive capacity of
B. Elements of a State legal determination and restriction.
1. People
2. Territory b. Kinds:
3. Sovereignty 1. Legal
4. Government 2. Political
3. Internal
1. People 4. External
A community of persons sufficient in number and
capable of maintaining the continued existence of Legal Sovereignty.
the community and held together by a common Cruz: Legal sovereignty is the authority which
bond of law.70 has the power to issue final commands. In our
country, the Congress is the legal sovereign.78
Different Meanings of “People” as used in the
Constitution: Bernas: Legal sovereignty is the supreme
power to affect legal interests either by
1. Inhabitants71 legislative, executive or judicial action. This is
2. Electors72 lodged in the people but is normally exercised
3. Citizens73 by state agencies79
4. Sovereign. The people organized (Bernas: Political writers distinguish between
collectively as a legal association is the legal sovereignty and political sovereignty.
state which sovereignty resides.74 The former is described as the supreme power
to make laws and the latter as the sum total of
2. Territory all influences in a state, legal or non-legal,
Territory is the fixed portion of the surface of the
earth inhabited by the people of the state.75 76
Bernas, An Introduction to Public International Law, 97 (2002
ed).
77
Garner cited in Cruz, Philippine Political Law, p. 26 (1995 ed).
78
69 Cruz, Philippine Political Law, p. 26 (1995 ed).
Bernas Commentary, p 39 (2003 ed). 79
70 Bernas Primer at 8 (2006 ed.); Section 1 of Article II says:
Bernas Commentary, p 40 (2003 ed).
71 “Sovereignty resides in the people an all government authority
Article II, Section 15, 16; Article III, Section 2; Article XIII, emanates from them.” Sovereignty in this sentence therefore can be
Section 1. understood as the source of ultimate legal authority. Since the
72
Article VII, Section 4; Article XVI, Section 2; Article XVIII, ultimate law in the Philippine system is the constitution, sovereignty,
Section 25) understood as legal sovereignty, means the power to adapt or alter a
73 constitution. This power resides in the “people” understood as those
Article II, Section 4; Article III, Section 7.
74 who have a direct hand in the formulation, adoption, and amendment
Preamble; Article II, Section 1.
75
or alteration of the Constitution. (Bernas Commentary, p 55 (2003
Cruz, Philippine Political Law, p. 16 (1995 ed). ed).

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which determine the course of law. Sinco beyond except those of a political complexion,
prefers not to make the distinction and places which are automatically annulled upon the
legal sovereignty in the state itself considered restoration of the legitimate authority.82
as a juridical person.)
e. Effects of Change in Sovereignty
Political Sovereignty
Sum total of all the influences of a State, legal As to political laws. Where there is a change in
and non-legal which determine the course of sovereignty, the political laws of the former
law. sovereign are not merely suspended but
abrogated unless they are retained or re-enacted
Internal Sovereignty by positive act of the new sovereign.
It refers to the power of the State to control its
domestic affairs. It is the supreme power over As to non-political laws. Non-political laws,
everything within its territory. continue in operation.

External Sovereignty f. Imperium v. Dominium


Also known as Independence, which is
freedom from external control. It is the power Imperium. State’s authority to govern. Covers such
of State to direct its relations with other activities as passing laws, governing territory,
States.80 maintaining peace and order over it, and defending
against foreign invasion. This is the authority
c. Characteristics of Sovereignty possessed by the State embraced in the concept of
sovereignty.
It is permanent, exclusive, comprehensive,
absolute, indivisible, inalienable, and Dominium. Capacity of the State to own property.
imprescriptible.81 Covers such rights as title to land, exploitation and
use of it, and disposition or sale of the same.
But wait, in the case of Tanada v. Angara, it was
held that sovereignty of a state cannot be g. Jurisdiction
absolute. It is subject to limitations imposed by
membership in the family of nations and limitations Jurisdiction is the manifestation of sovereignty. The
imposed by treaties. The Constitution did not jurisdiction of the state is understood as both its
envision a hermit-type isolation of the country from authority and the sphere of the exercise of that
the rest of the world. (2000 Bar Question) authority.

Kinds of Jurisdiction:
d. Effects of Belligerent Occupation 1. Territorial jurisdiction- authority of the
state to have all persons and things within
As to political laws. No change of sovereignty its territorial limits to be completely subject
during a belligerent occupation, the political laws of to its control and protection.83
the occupied territory are merely suspended,
subject to revival under the jus postliminium upon 2. Personal jurisdiction- authority of the
the end of the occupation. state over its nationals, their persons,
property, and acts whether within or
Note that the rule suspending political laws affects outside its territory (e.g. Art. 15,CC)
only the civilian inhabitants of the occupied 3. Extra-territorial jurisdiction- authority of
territory and is not intended to bind the enemies in the State over persons, things, or acts,
arms. Also, the rule does not apply to the law on
treason although decidedly political in character. 82
Cruz, Philippine Political Law, p. 28 (1995 ed
83
As to non-political laws. The non-political laws Exempt are:
are deemed continued unless changed by the 1. Foreign states, heads of state, diplomatic representatives,
belligerent occupant since they are intended to and consuls to a certain degree;
2. Foreign state property, including embassies, consulates,
govern the relations of individuals as among
and public vessels engaged in non-commercial activities;
themselves and are not generally affected by 3. Acts of state;
changes in regimes of rulers. 4. Foreign merchant vessels exercising the rights of innocent
passage or involuntary entry, such as the arrival under
As for judicial decisions. As for judicial decisions stress;
the same are valid during the occupation and even 5. Foreign armies passing through or stationed in its territory
with its permission;
80 6. Such other persons or property, including organizations
Cruz, Philippine Political Law, p. 26 (1995 ed). like the United Nations, over which it may, by agreement,
81
Laurel v. Misa, 77 Phil 856. waive jurisdiction.

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outside its territorial limits by reason of


their effect to its territory. 1. Government of the Republic of the
Examples: Philippines
1. Assertion of its personal jurisdiction over The Government of the Republic of the Philippines
its nationals abroad; or the exercise of its is a term which refers to the corporate
rights to punish certain offenses
committed outside its territory against its
governmental entity through which the functions
national interests even if the offenders are of government are exercised throughout the
non-resident aliens; Philippine Islands, including, save as the contrary
2. By virtue of its relations with other states appears from context, the various arms through
or territories, as when it establishers a which political authority is made effective in said
colonial protectorate, or a condominium, Islands, whether pertaining to the central
or administers a trust territory, or occupies Government or to the provincial or municipal
enemy territory in the course of war; branches or other form of local government.
3. When the local state waives its jurisdiction
over persons and things within its territory,
(Section 2 of the Revised Administrative Code
as when a foreign army stationed therein (1917).
remains under the jurisdiction of the On the national scale, the term “government of the
sending states; Philippines” refers to the three great departments.
4. by the principle of extra territoriality, as On the local level, it means the regional provincial,
illustrated by the immunities of the head of city municipal an barangay governments.
state in a foreign country; It does not include government entities which are
5. Through the enjoyment or easements or given a corporate personality separate and distinct
servitudes, such as the easement of
innocent passage or arrival under stress;
for the government and which are governed by the
6. The exercise of jurisdiction by the state in corporation law.
the high seas over its vessels; over
pirates; in the exercise of the right to visit 2. Government v. Administration
and search; and under the doctrine of hot
pursuit; Government is the institution through which the
7. The exercise of limited jurisdiction over state exercises power. Administration consists of
the contiguous zone and the patrimonial
sea, to prevent infringement of its
the set of people currently running the institution.87
customs, fiscal, immigration or sanitary
regulations. 3. Functions of Government
(1) Governmental (Constituent)- are the
h. Juristic Theory of Sovereignty compulsory functions which constitute the very
bonds of society.
The legalistic and analytical view of sovereignty
considers the state as a corporate entity, a (2) Proprietary (Ministerial)—optional functions of
juridical person.84 It takes the state purely as a the government for achieving a better life for
legal organism. It does not have anything to do at the community. (Bacani v. NACOCO)
all with its social and historical background.
Governmental Function
i. “Sovereignty resides in the PEOPLE” • Implementation of the land reform may not strictly be
“constituent” in the sense of Bacani but the
The “people” in the sense in which it is used here compelling urgency with which the Constitution
refers to the entire citizenry considered as a speaks of social justice does not leave any doubt that
unit.85 land reform is not an optional but a compulsory
function of sovereignty. (ACCFA v. CUGCO)
• The functions of the Veterans Federation of the
4. Government Philippines fall within the category of sovereign
Government. That institution or aggregate of functions. (Veterans Federation of the Phils. V. Reyes
institutions by which an independent society makes 483 SCRA 526)
and carries out those rules of action which are • The Manila International Airport Authority is a
necessary to enable men to live in a social state, or governmental instrumentality vested with corporate
which are impose upon the people forming that powers to perform its governmental function. It
society by those who possess the power or performs government functions essential to the
operation of an international airport. (MIAA v. CA)
authority of prescribing them.86
• Housing is a governmental function since housing is
considered an essential service. (PHHC v. CIR)
C Government • The NHA is tasked with implementing the
governmental program of providing mass housing to
84
Sinco, Philippine Political Law, p 18 (1954ed). meet the needs of Filipinos for decent housing. The
85
Sinco, Philippine Political Law, p 19 (1954ed). NHA is exempt from paying docket fees in suits in
86
US v. Dorr, 2 Phil 332 cited in Bacani v. NACOCO, 100 Phil. 468
87
(1956). Bernas Commentary, p 44(2003 ed).

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relation to its governmental functions. (Badillo v. against the Union during the war of
Tayag) secession in the United States.)
• The (RCA) Rice and Corn Administration is a 3. Government of paramount force.
government machinery to carry out declared That which is established and maintained
government policy to stabilize the price of palay, rice, by military forces who invade and occupy
and corn and making it within the reach of average a territory of enemy in the course of war. 92
consumers. Its activity of buying and selling corn is (Such as the cases of Castine in Maine,
only an incident to its government function. Hence,
which was reduced to a British possession
it is exempt from posting an appeal bond. (Republic
v. CFI) in the war of 1812, and Tampico, Mexico,
• The “AFP Retirement and Benefits System” is a occupied during the war with Mexico by
government entity and its funds are in the nature of the troops of the US.) (Co Kim Chan v.
public funds (People v. Sandiganbayan) Valdez , 75 Phil 113)
Proprietary Function
• Undertaking to supply water for a price is considered Note:
a trade and not a governmental activity. (Spouses The government under Cory Aquino and the
Fontanilla v. Maliaman) Freedom Constitution is a de jure government.
• Civil Aeronautics Administration is in charge of the It was established by authority of the legitimate
administration of MIA, it is performing proprietary sovereign, the people. It was a revolutionary
functions, hence it can be sued even when the claim government established in defiance of the
is based on a quasi-delict. (CAA v. CA) 1973 Constitution. (In Re Letter of Associate
Justice Puno, 210 SCRA 589 (1992).
4. Doctrine of Parens Patriae
Literally, “parent of the people.” One of the The government under President Gloria
important tasks of the government is to act for the Macapagal Arroyo established after the ouster
State as parens patriae, or guardian of the rights of of President Estrada is de jure government.93
the people.88
Sinco on Revolution or Direct State Action:
5. Classification of Government on the Basis of “It sometimes happens that the people rise in
Legitimacy revolt against the existing administration
1. De Jure Government [government] and through force or threats
2. De Facto Government succeed in altering the constituted organs of
the government. From the point of view of the
De Jure Government. One established by existing constitutional plan, that act is illegal;
authority of the legitimate sovereign.89 but considered from the point of view of the
sate as a distinct entity not necessarily bound
De Facto Government. One established in to employ a particular government or
defiance of the legitimate sovereign.90 It actually 92
exercises power or control without legal title.91 It has been held that the Second Republic of the Philippines was a
de facto government of paramount force, having been established by
the Japanese belligerent during the occupation of the Philippines in
3 Kinds of De Facto Government: World War II.
1. The government that gets The characteristics of this kind of de facto government are:
possession and control or, or usurps, 1. Its existence is maintained by active military power
by force or by the voice of majority, the within the territories, and against the rightful authority of
rightful legal government and maintains an established and lawful government.
itself against the will of the latter. (Such as 2. During its existence, it must necessarily be obeyed in civil
the government of England under the matters by private citizens who, by acts of obedience
Commonwealth, first by Parliament and rendered in submission to such force, do not become
responsible, as wrongdoers, for those acts, though not
later by Cromwell as Protector.)
warranted by the laws of the rightful government. Actual
2. Established and maintained by governments of this sort are established over districts
invading military forces. That differing greatly in extent and conditions. They are
established as an independent usually administered by military authority, supported
government by the inhabitants of a more or less directly by military force. (Co Kim Chan v.
country who rise in insurrection against Valdez , 75 Phil 113)
the parent state (Such as the government By contrast, the Supreme Court unanimously held in Lawyers
League for a Better Philippines v. Corazon Aquino that “the
of the Southern Confederacy in revolt
people have made the judgment; they have accepted the
88
government of President Corazon Aquino which is in effective
Cruz, Philippine Political Law, p. 23 (1995 ed). control of the entire country so that it is not merely a de facto
89 government but in fact and law a de jure government.
Bernas Primer at 9 (2006 ed.)
90
Moreover, the community of nations has recognized the
Bernas Primer at 9 (2006 ed.) legitimacy of the present government.”
91 93
Cruz, Philippine Political Law, p. 23 (1995 ed). Bernas Primer at 9 (2006 ed.)

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administration to carry out its will, it is the of the government and not subject to judicial
direct act of the state itself because it is review. An illustration is the decision of the
successful. As such, it is legal, for whatever is President, in the exercise of his diplomatic power,
attributable to the state is lawful. This is the to extend recognition to a newly-established
legal and political basis of the doctrine of foreign State or government.99
revolution.”94
D. State Immunity
5. Presidential v. Parliamentary form of
government (2006 Bar Exam Question) “The State cannot be sued without its consent.”
(Article XVI, Section 3)
The presidential form of government’s identifying
feature is what is called the “separation of (State immunity will be discussed under Article XVI,
powers.”95 Section 3)

The essential characteristics of a parliamentary PRINCIPLES


form of government are:
1. The members of the government or III. Republicanism
cabinet or the executive arm are, as a
rule, simultaneously members of the
legislature; Section 1. The Philippines is a
2. The government or cabinet consisting of democratic and republican State.
the political leaders of the majority party or Sovereignty resides in the people and
of a coalition who are also members of the all government authority emanates
legislature, is in effect a committee of the from them.
legislature;
3. The government or cabinet has a A. Republic
pyramidal structure at the apex of which is
the Prime Minister or his equivalent; Republic is a representative government run by
4. The government or cabinet remains in the people and for the people.100
power only for so long as it enjoys the
support of the majority of the legislature; Republican state is a state wherein all
5. Both government and legislature are government authority emanates from the people
possessed of control devices which each and is exercised by representatives chosen by the
can demand of the other immediate people.101
political responsibility. In the hands of the
legislature is the vote of non-confidence B. Essential Features of Republicanism
(censure) whereby government may be
ousted. In the hands of the government is The essence of republicanism is representation
the power to dissolve the legislature and and renovation. The citizenry selects a corps of
call for new elections.96 public functionaries who derive their mandate from
the people and act on their behalf, serving for a
Q: What constitutional forms of government limited period only, after which they are replaced or
have been experienced by the Philippines retained at the option of their principal.102
since 1935?
A: Presidential and presidential only.97 C. Manifestations of Republicanism
C. Acts of State 1. Ours is a government of laws and not of men.
(Villavicencio v. Lukban, 39 Phil 778)
An act of State is done by the sovereign power of a 2. Rule of Majority (Plurality in elections)
country, or by its delegate, within the limits of the 3. Accountability of public officials
power vested in him.98 4. Bill of Rights
5. Legislature cannot pass irrepealable laws
Within particular reference to Political Law, an act 6. Separation of powers
of State is an act done by the political departments
D. “Democratic State”
94
Sinco, Philippine Political Law, p 7 (1954ed).
95 99
Bernas Primer at 10 (2006 ed.) Cruz, Philippine Political Law, p. 29 (1995 ed).
96 100
Bernas Primer at 11 (2006 ed.) Cruz, Philippine Political Law, p. 50 (1995 ed).
97 101
Bernas Primer at 11 (2006 ed.) Bernas Primer at 11 (2006 ed.)
98 102
Cruz, Philippine Political Law, p. 29 (1995 ed). Cruz, Philippine Political Law, p. 50 (1995 ed).

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In the view of the new Constitution, the Philippines


is not only a representative or republican state but 3. Historical Development of the Policy
also shares some aspects of direct democracy Condemning or Outlawing War in the
such as “initiative and referendum”. The word International Scene:
democratic is also a monument to the February 1. Covenant of the League of Nations-
Revolution which re-won freedom through direct
provided conditions for the right to go to war.
action of the people.
2. Kellogg-Briand Pact of 1928- also
E. Constitutional Authoritarianism known as the General Treaty for the
Renunciation of War, ratified by 62 states,
Constitutional authoritarianism as understood and which forbade war as “an instrument of
practiced in the Marcos regime under the 1973 national policy.”
Constitution, was the assumption of extraordinary 3. Charter of the United Nations- Prohibits
powers by the President, including legislative and the threat or use of force against the territorial
judicial and even constituent powers.103 integrity or political independence of a State.

Q: Is constitutional authoritarianism compatible B. Incorporation Clause


with a republican state?
A: Yes if the Constitution upon which the Executive “The Philippines…adopts the generally accepted
bases his assumption of power is a legitimate principles of international law as part of law of the
expression of the people’s will and if the Executive land…”
who assumes power received his office through a
valid election by the people.104 1. Acceptance of Dualist View
Implicit in this provision is the acceptance of the
IV. Renunciation of War/ Incorporation Clause/ dualist view of legal systems, namely that
Policy of PEJ-FCA with All Nations domestic law is distinct from international law.
Since dualism holds that international law and
municipal law belong to different spheres,
Section 2. The Philippines renounces
international law becomes part of municipal law
war as an instrument of national
only if it is incorporated in to municipal law.105
policy, adopts the generally accepted
principles of international law as part
2 Doctrine of Incorporation (1997 Bar Question)
of law of the land and adheres to the
policy of peace, equality, justice, Every state is, by reason of its membership in the
freedom, cooperation, and amity with family of nations, bound by the generally
all nations. accepted principles of international law, which
are considered to be automatically part of its
own laws. This is the doctrine of incorporation.106
A. Renunciation of War
3. International Law
“The Philippines renounces war as an instrument of
International Law
national policy…”
Traditional definition: It is a body of rules and
(Read along Preamble, Article II Secs. 7 &8; Article
principles of action which are binding upon civilized
XVIII Sec. 25)
states in their relation to one another.
Restatement: The law which deals with the conduct
1. Aggressive War
of states and of international organizations and
The Philippines only renounces AGGRESSIVE war with their relations inter se, as well as with some
as an instrument of national policy. It does not other relations with persons, natural or juridical.
renounce defensive war.
4. To What Elements of International Law does
2. Philippines Renounces Not Only War the principle of incorporation apply?
As member of United Nations, the Philippines does Since treaties become part of Philippine law only
not merely renounce war but adheres to Article 2(4) by ratification, the principle of incorporation applies
of the UN charter which says: “ All Members shall only to customary law and to treaties which
refrain in their international relations from the have become part of customary law. 107
threat or use of force against the territorial
integrity or political independence of any state, or 5. Effect of Incorporation Clause
in any other manner inconsistent with Purposes of
the Untied Nations.” 105
Bernas Commentary, p 61 (2003 ed).
106
103
Bernas Primer at 12 (2006 ed.) Cruz, Philippine Political Law, p. 55 (1995 ed).
104 107
Bernas Primer at 12 (2006 ed.) Bernas Commentary, p 61 (2003 ed).

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International law therefore can be used by (2) To secure the sovereignty of the State and the
Philippine courts to settle domestic disputes in integrity of the national territory.114
much the same way that they would use the Civil
Code or the Penal Code and other laws passed by (3) They may be called to prevent or suppress
Congress.108 lawless violence, invasion or rebellion.115
(4) All Members of the armed forces shall take an
C. Policy of PEJ-FCA with All Nations oath or affirmation to uphold and defend the
“The Philippines…adheres to the policy of peace, Constitution.116
equality, justice, freedom, cooperation, and amity
with all nations.” 2. Composition
The Armed Forces of the Philippines shall be
Q: Does the affirmation of amity will all nations composed of a citizen armed force which shall
mean automatic diplomatic recognition of all undergo military training and serve as may be
nations? provided by law. (Article XVI, Section 4)
A: No. Amity with all nations is an ideal to be aimed
at. Diplomatic recognition, however, remains a 3. On Politics
matter of executive discretion.109
The armed forces shall be insulated from partisan
V. Supremacy of Civilian Authority politics. No member of the military shall engage
directly or indirectly in any partisan political activity,
except to vote. (Article XVI, Section 5)
Section 3. Civilian Authority is, at all
times supreme over the military. The Q: Is the provision an assertion of the political
Armed Forces of the Philippines is role of the military?
the protector of the people and the A: No. The phrase “protector of the people”
State. Its goal is to secure the was not meant to be an assertion of the
sovereignty of the State and integrity political role of the military. The intent of the
of the national territory. phrase “protector of the people” was rather to
make it as corrective to military abuses
A. Civilian Authority experienced during martial rule.117

That civilian authority is at all times supreme over


the military is implicit in a republican system.110 Q: Does this mean that the military has no
Still, it was felt advisable to expressly affirm this political role?
principle in the Constitution to allay all fears of a A: Bernas: The military exercise of political
military take-over of our civilian government.111 power can be justified as a last resort—when
civilian authority has lost its legitimacy.118
It was also fittingly declared that the President, who (This is dangerous.)
is a civilian official, shall be the commander-in-chief
of all the armed forces of the Philippines.112 4 . Bar Question (2003)
Q: Is the PNP covered by the same mandate under
Q: Does this mean that civilian officials are superior Article II, Section 3?
to military officials? A: No. This provision is specifically addressed to
A: Civilian officials are superior to military official the AFP and not to the PNP, because the latter is
only when a law makes them so.113 separate and distinct from the former. (Record of
the Constitutional Commission, Volume V, p. 296;
B. Armed Forces of the Philippines Manalo v. Sistoza, 312 SCRA 239)

1. Reasons [in the constitution] for the VI. Defense of State


existence of the armed forces
(1) As protector of the people and the State
Section 4. The prime duty of the
government is to serve and protect
the people. The Government may call
108
Bernas Commentary, p 61 (2003 ed). upon the people to defend the state
109
Bernas Primer at 13 (2006 ed.) 114
Article II, Section 3.
110
Cruz, Philippine Political Law, p. 67 (1995 ed). 115
Article VII, Section 18. See IBP v. Zamora.
111 116
Cruz, Philippine Political Law, p. 67 (1995 ed). Article XVI, Seciton 5.
112 117
Article VII, Section 18. Bernas Commentary, p 66 (2003 ed).
113 118
Bernas Primer at 13 (2006 ed.) Bernas Commentary, p 66 (2003 ed).

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and, in the fulfillment thereof, all 2. Religious sect cannot be registered as a


citizens may be required, under political party (Article IX-C, Section 2(5))
conditions provided by law, to render 3. No sectoral representatives from the religious
personal military or civil service. sector. (Article VI, Section 5 (2))
4. Prohibition against appropriation against
sectarian benefit. (Article VI, 29(2)).
VII. Peace and Order
D. Exceptions
Section 5. The maintenance of 1. Churches, parsonages, etc. actually, directly
peace and order, the protection of and exclusively used for religious purposes
life, liberty and property, and the shall be exempt from taxation. (Article VI,
promotion of general welfare are Section 28(3)).
essential for the enjoyment by all the 2. When priest, preacher, minister or dignitary is
people of the blessings of democracy. assigned to the armed forces, or any penal
institution or government orphanage or
leprosarium, public money may be paid to
Section 5 is not a self-executing provision. It is
them. (Article VI, Section 29(2))
merely a guideline for legislation. (Kilosbayan v.
3. Optional religious instruction for public
Morato)
elementary and high school students. (Article
XIV, Section 3(3)).
Right to bear arms. The right to bear arms is a
4. Filipino ownership requirement for education
statutory, not a constitutional right. The license to
institutions, except those established by
carry a firearm is neither a property nor a property
religious groups and mission boards. (Article
right. Neither does it create a vested right. Even if it
XIV, Section 4(2)).
were a property right, it cannot be considered
absolute as to be placed beyond the reach of
police power. The maintenance of peace and
STATE POLICIES
order, and the protection of the people against
violence are constitutional duties of the State, and
the right to bear arms is to be construed in IX. Independent Foreign Policy
connection and in harmony with these
constitutional duties. (Chavez v. Romulo, 2004) Section 7. The State shall pursue an
independent foreign policy. In its
VIII. Separation of Church and State relations with other states the
paramount consideration shall be
national sovereignty, territorial
Section 6. The separation of Church
integrity, national interest, and the
and State shall be inviolable.
right to self-determination.
A. Rationale
The word “relations” covers the whole gamut of
treaties and international agreements and other
“Strong fences make good neighbors.” The idea is to kinds of intercourse.121
delineate boundaries between the two institutions and
thus avoid encroachments by one against the other
X. Freedom from Nuclear Weapons
because of a misunderstanding of the limits of their
respective exclusive jurisdictions.119
Section 8. The Philippines consistent
B. Who is Prohibited from Interfering with the national interest, adopts and
pursues a policy of freedom from
Doctrine cuts both ways. It is not only the State that is nuclear weapons in its territory.
prohibited from interfering in purely ecclesiastical
affairs; the Church is likewise barred from meddling in A. Scope of Policy
purely secular matters. 120(Cruz)
The policy includes the prohibition not only of the
C. Separation of Church and State is Reinforced by: possession, control, and manufacture of nuclear
1. Freedom of Religion Clause (Article III, Section weapons but also nuclear arms tests.
5)
B. Exception to the Policy
119
Cruz, Philippine Political Law, p. 65 (1995 ed).
120 121
Cruz, Philippine Political Law, p. 65 (1995 ed). Bernas Commentary, p 72 (2003 ed).

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XIII. Respect for Human Dignity


Exception to this policy may be made by the
political department but it must be justified by the
demands of the national interest.122 Section 11. The State values the
dignity of every human person and
The policy does not prohibit the peaceful use of guarantees full respect for human
nuclear energy.123 rights.

C. Implication of the Policy for the Presence of The concretization of this provision is found
American Troops principally in the Bill of Rights and in the human
rights provision of Article XIII.126
Any new agreement on bases or the presence of
the troops, if ever there is one, must embody the Facts: Petitioners questioned the constitutionality
basic policy of freedom from nuclear weapons. of PD 1869, which created the PAGCOR and
Moreover, it would be well within the power of authorized it to operate gambling casinos, on the
government to demand ocular inspection and ground that it violated Sections 11, 12 and 13 of
removal of nuclear arms.124 Article II of the Constitution.
Held: These provisions are merely statements of
XI. Just and Dynamic Social Order policies which are not self-executing. A law has to
be passed to implement them. (Basco v. PAGCOR,
197 DCRA 52)127
Section 9. The State shall promote a
just and dynamic social order that will
ensure the prosperity and XIV. Family; Rearing the Youth
independence of the nation and free
the people from poverty through
policies that provide adequate social Section 12. The State recognizes the
services, promote full employment, a sanctity of family life and shall protect
raising standard of living, and an and strengthen the family as a basic
improved quality of life for all. autonomous social institution. It shall
equally protect the life of the mother
and the life of the unborn from
XII. Social Justice conception. The natural and primary
right and duty of parents in rearing of
the youth for civic efficiency and the
Section 10. The State shall promote development of moral character shall
social justice in all phases of national receive the support of the
development government.

A. Definition of Social Justice Section 13. The State recognizes


the vital role of the youth in nation-
Social Justice is neither communism, nor building and shall promote and
despotism, nor atomism, nor anarchy, but the protect their physical moral, spiritual,
humanization of the laws and the equalization intellectual, and social well-being. It
of the social and economic forces by the State shall inculcate in the youth patriotism
so that justice in its rational and objectively and nationalism, and encourage their
secular conception may at least be involvement in public and civic affairs.
approximated. (Calalang v. Williams)
A. Family
Social justice simply means the equalization of
economic, political, and social opportunities with Family” means a stable heterosexual relationship.
special emphasis on the duty of the state to tilt the The family is not a creature of the State.128
balance of social forces by favoring the
disadvantaged in life.125 B. Effect of the Declaration of Family Autonomy

122
Bernas Primer at 15 (2006 ed.)
123 126
Bernas Primer at 15 (2006 ed.) Bernas Commentary, p 83 (2003 ed).
124 127
Bernas Primer at 15 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 4 (2006 ed.)
125 128
Bernas Primer at 16 (2006 ed.) Bernas Commentary, p 84 (2003 ed).

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It accepts the principle that the family is anterior to


the State and not a creature of the State. It protects Parens Patriae. However, as parens patriae, the
the family from instrumentalization by the State.129 State has the authority and duty to step in where
parents fail to or are unable to cope with their
C. Purpose of Assertion of Protection of the Unborn duties to their children.

The purpose of the assertion that the protection XV. Women


begins from the time of conception is to prevent
the State form adopting the doctrine in Roe v.
Wade which liberalized abortion laws up to the Section 14. The State recognizes the
sixth month of pregnancy by allowing abortion any role of women in nation-building, and
time during the first six months of pregnancy shall ensure the fundamental equality
provided it can be done without danger to the before the law of women and men.
mother.
The provision is so worded as not to automatically
D. Legal Meaning of the Protection Guaranteed for dislocate the Civil Code and the civil law
the Unborn. jurisprudence on the subject. What it does is to
1. This is not an assertion that the unborn is give impetus to the removal, through statutes, of
a legal person. existing inequalities. The general idea is for the law
to ignore sex where sex is not a relevant factor in
2. This is not an assertion that the life of the determining rights and duties. Nor is the provision
unborn is placed exactly on the level of the life meant to ignore customs and traditions.131
of the mother. (When necessary to save the
life of the mother, the life of the unborn may be In Philippine Telegraph and Telephone Co. v.
sacrificed; but not when the purpose is merely NLRC, 1997, the Supreme Court held that the
to save the mother from emotional suffering, petitioner’s policy of not accepting or considering
for which other remedies must be sought, or to as disqualified from work any woman worker who
spare the child from a life of poverty, which contracts marriage , runs afoul of the test of, and
can be attended to by welfare institutions.)130 the right against discrimination, which is
guaranteed all women workers under the
E. Education Constitution. While a requirement that a woman
employee must remain unmarried may be justified
In the matter of education, the primary and natural as a “bona fide qualification” where the particular
right belongs to the parents. The State has a requirements of the job would demand the same,
secondary and supportive role. discrimination against married women cannot be
adopted by the employer as a general principle.
Foreign Language. The State cannot prohibit the
teaching of foreign language to children before XVI. Health
they reach a certain age. Such restriction does
violence both to the letter and the spirit of the
Constitution. (Meyer v. Nebraska) Section 15. The State shall protect
and promote the right to health of the
Public School. The State cannot require children people and instill health
to attend only public schools before they reach a consciousness among them.
certain age. The child is not a mere creature of the
State. Those who nurture him and direct his destiny The provisions which directly or indirectly pertain to
have the right to recognize and prepare him. the duty of the State to protect and promote the
(Pierce v. Society of Sisters) people’s right to health and well-being are not self-
executory. They await implementation by Congress.132
Religious Upbringing. The State cannot require
children to continue schooling beyond a certain XVII. Balanced and Healthful Ecology
age in the honest and sincere claim of parents that
such schooling would be harmful to their religious
upbringing. Only those interests of the State “of the Section 16. The State shall protect and
highest order and those not otherwise served can advance the right of the people to a
overbalance” the primary interest of parents in the balanced and healthful ecology in
religious upbringing of their children. (Wisconsin v.
Yoder)
131
Bernas Primer at 18 (2006 ed.)
129
Bernas Primer at 16 (2006 ed.) 132
Tondo Medical Center Employees v. CA. G.R. No.
130
Bernas Primer at 17 (2006 ed.) 167324, July 17, 2007.

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accord with the rhythm and harmony of While it is true that the Court has upheld the
nature. constitutional right of every citizen to select a
profession or course of study subject to fair,
Section 16 provides for enforceable rights. Hence, reasonable and equitable admission and academic
appeal to it has been recognized as conferring requirements, the exercise of this right may be
“standing” on minors to challenge logging policies regulated pursuant to the police power of the State
of the government. (Oposa v. Factoran) to safeguard health, morals, peace, education,
order, safety and general welfare.
While the right to a balanced and healthful Thus, persons who desire to engage in the learned
ecology is to be found under the Declaration of professions requiring scientific or technical
Principles and State Policies and not under the Bill knowledge may be required to take an examination
of Rights, it does not follow that it is less important as a prerequisite to engaging in their chosen
than any of the civil and political rights enumerated careers. This regulation assumes particular
in the latter. Such a right belongs to a different pertinence in the field of medicine, in order to
category of rights for it concerns nothing less than protect the public from the potentially deadly effects
self-preservation and self-perpetuation. These of incompetence and ignorance. (PRC v. De
basic rights need not even be written in the Guzman, 2004)
Constitution for they are assumed to exist from the
inception of humankind. (Oposa v. Factoran,1993) XIX. Labor

On this basis too, the SC upheld the empowerment


of the Laguna Lake Development Authority (LLDA) Section 18. The State affirms labor
to protect the inhabitants of the Laguna Lake Area as a primary social economic force. It
from the deleterious effects of pollutants coming shall protect the rights of workers and
from garbage dumping and the discharge of promote their welfare.
wastes in the area as against the local autonomy
claim of local governments in the area. (LLDA v. “A primary social economic force” means that the
CA, 1995) human factor has primacy over non-human factors
of production.
See Rule of Procedure on Environmental
Cases. Protection to labor does not indicate promotion of
employment alone. Under the welfare and social
See Writ of Kalikasan under Article VIII. justice provisions of the Constitution, the promotion
of full employment, while desirable, cannot take a
XVIII. Education, Science and Technology backseat to the government’s constitutional duty to
provide mechanisms for the protection of our
workforce, local or overseas. (JMM Promotion and
Section 17. The State shall give Management v. CA, 260 SCRA 319)
priority to education, science and
technology, arts, culture and sports to What concerns the Constitution more paramountly
foster patriotism, nationalism, is employment be above all, decent, just and
accelerate social progress, and humane. It is bad enough that the country has to
promote total human liberation and send its sons and daughters to strange lands,
development. because it cannot satisfy their employment needs
(See Article XIV, Section 2) at home. Under these circumstances, the
Government is duty bound to provide them
This does not mean that the government is not free adequate protection, personally and economically,
to balance the demands of education against other while away from home. (Philippine Association of
competing and urgent demands. (Guingona v. Service Exporters v. Drilon, 163 SCRA 386)
Carague)
XX. Self-Reliant and Independent Economy
In Philippine Merchant Marine School Inc. v. CA,
the Court said that the requirement that a school
must first obtain government authorization before Section 19. The State shall develop
operating is based on the State policy that a self-reliant and independent
educational programs and/or operations shall be of national economy effectively
good quality and, therefore, shall at least satisfy controlled by Filipinos.
minimum standards with respect to curricula,
teaching staff, physical plant and facilities and This is a guide for interpreting provisions on
administrative and management viability. national economy and patrimony. Any doubt must

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be resolved in favor of self-reliance and Section 22. The State recognizes


independence and in favor of Filipinos. and promotes the rights of indigenous
cultural communities within the
A petrochemical industry is not an ordinary framework of national unity and
investment opportunity, it is essential to national development.
interest. (The approval of the transfer of the plant (See Article VI Section 5(2); Article XII, Section 5;
from Bataan to Batangas and authorization of the Article XIV, Section 17; See Cruz v. DENR)
change of feedstock from naptha only to naptha
and/or LPG do not prove to be advantageous to XXIV. Independent People’s Organizations;
the government. This is a repudiation of the Volunteerism
independent policy of the government to run its
own affairs the way it deems best for national
interest.) (Garcia v. BOI) Section 23. The State shall
encourage non-governmental,
The WTO agreement does not violate Section 19 of community-bases, or sectoral
Article II, nor Sections 10 and 12 of Article XII, organizations that promote the
because said sections should be read and welfare of the nation.
understood in relation to Sections 1 and 3, Article (See Article XIII, Sections 15-16)
XII, which requires the pursuit of a trade policy that
“serves the general welfare and utilizes all forms The provision recognizes the principle that
and arrangements of exchange on the basis of volunteerism and participation of non-governmental
equality and reciprocity.” (Tanada V. Angara) organizations in national development should be
encouraged.133
XXI. Private Sector and Private Enterprise
XXV. Communication and Information
Section 20. The State recognizes the
indispensable role of the private Section 24. The State recognizes the
sector, encourages private enterprise, vital role of communication and
and provides incentives to needed information in nation-building.
investments.
(See Article XVI, Sections 10-11; Article XVIII,
Section 23)
Section 20 is an acknowledgment of the
importance of private initiative in building the The NTC is justified to require PLDT to enter
nation. However, it is not a call for official into an interconnection agreement with a
abdication of duty to citizenry. (Marine Radio cellular mobile telephone system. The order
Communications Association v. Reyes) was issued in recognition of the vital role of
communications in nation-building and to
Although the Constitution enshrines free enterprise ensure that all users of the public
as a policy, it nevertheless reserves to the telecommunications service have access to all
Government the power to intervene whenever other users of service within the Philippines.
necessary for the promotion of the general welfare, (PLDT v. NTC)
as reflected in Sections 6 and 19 of Article XII.
XXVI. Local Autonomy
XXII. Comprehensive Rural Development

Section 25. The State shall ensure


Section 21. The State shall promote the autonomy of local governments.
comprehensive rural development
(See Article X)
and agrarian program.
(See Article XIII, Sections 4-10) Local autonomy under the 1987 Constitution simply
means “decentralization” and does not make the
Comprehensive rural development includes not local governments sovereign within the State or an
only agrarian reform. It also encompasses a broad imperium in imperio. (Basco v. PAGCOR)
spectrum of social, economic, human, cultural,
political and even industrial development. Decentralization of administration is merely a
delegation of administrative powers to the local
XXIII. Indigenous Cultural Communities government unit in order to broaden the base of
governmental powers. Decentralization of power is

133
Bernas Commentary, p 96(2003 ed).

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abdication by the national government of recognized as privileged in nature. (Akbayan v.


governmental powers. Aquino, 2008)

Even as we recognize that the Constitution xxx


guarantees autonomy to local government units,
the exercise of local autonomy remains subject to (1996 Bar Question)
the power of control by Congress and the power of A law was passed dividing the Philippines into
general supervision by the President. (Judge three regions (Luzon, Visayas and Mindanao)
Dadole v. Commission on Audit, 2002) each constituting an independent state except
on matters of foreign relations, national
XXVII. Equal Access to Opportunities defense and national taxation, which are vested
in the Central Government. Is the law valid?

Section 26. The State shall The law dividing the Philippines into three regions
guarantee equal access to each constituting an independent state and vesting
opportunities for public service, and in a central government matters of foreign
prohibit political dynasties as may be relations, national defense and national taxation is
defined by law. unconstitutional.
(See Article VII, Section 13; Article XIII, Sections 1- 1. It violates Article I, which guarantees the
2) integrity of the national territory of the
Philippines because it divided the
Purpose. The thrust of the provision is to impose Philippines into three states.
on the state the obligation of guaranteeing equal
access to public office.134 2. It violates Section 1, Article II of the
Constitution which provides for the
There is no constitutional right to run for or hold establishment of democratic and republic
public office. What is recognized is merely a states by replacing it with three states
privilege subject to limitations imposed by law. organized as a confederation.
Section 26 of the Constitution neither bestows such 3. It violates Section 22, Article II of the
right nor elevates the privilege to the level of an Constitution, which, while recognizing and
enforceable right. (Pamatong v. COMELEC) promoting the rights of indigenous cultural
communities, provides for national unity
XXVIII. Public Service and development.
4. It violates Section 15, Article X of the
Constitution, which, provides for
Section 27. The State shall maintain
autonomous regions in Muslim Mindanao
honesty and integrity in public service
and in the cordilleras within the framework
and take positive and effective
of national sovereignty as well as
measures against graft and
territorial integrity of the Republic of the
corruption.
Philippines.
(See Article IX-D; Article XI, Sections 4-15)
5. It violates the sovereignty of the Republic
of the Philippines.
XXIV. Full Public Disclosure
(1989 and 2000 Bar Question)
Section 28. Subject to reasonable
conditions prescribed by law, the
State adopts and implements a policy
of full public disclosure of all its
transactions involving public interest.
(Article III, Section 7; Article VI Sections 12 and 20;
Article VII, Section 20; Article XI, Section 17; Article XII,
Section 21)

It is well established in jurisprudence that neither


the right to information nor the policy of full public
disclosure is absolute, there being matters which,
albeit of public concern or public interest, are

134
Bernas Commentary, p 99 (2003 ed).

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A. Definition of Legislative Power

Legislative power is the authority to make laws and


LEGISLATIVE DEPARTMENT to alter or repeal them.

B. Where Vested
OUTLINE OF ARTICLE VI
Legislative power is vested in Congress except to
I. Legislative Power (§1) the extent reserved to the people by the provision
II. Powers of Congress on initiative and referendum.
III. Congress (§§ 2-10) C. Classification of legislative power
IV. Privileges of Members (§ 11) (1) Original legislative power- possessed by the
V. Duty to Disclose, Disqualifications sovereign people.
and Prohibitions (§§ 12-14) (2) Derivative legislative power- that which has
VI. Internal Government of Congress been delegated by the sovereign people to the
(§§ 15-16) legislative bodies. (Kind of power vested in Congress)
VII. Electoral Tribunal, CA (§§17-19) (3) Constituent- The power to amend or revise
VIII. Records and Books of the constitution
Accounts (§ 20) (4) Ordinary- Power to pass ordinary laws.
IX. Inquiries/ Oversight function (§§ 21- Legislative power exercised by the people. The
22) people, through the amendatory process, exercise
X. Emergency Powers (§ 23) constituent power, and through initiative and
XI. Bills/ Legislative Process (§ referendum, ordinary legislative power.
24,26,27)
D. Scope of Legislative power.
XII. Power of the Purse/Fiscal
Powers (§§ 28,29,25) Congress may legislate on any subject matter.
XIII. Other Prohibited Measures (Vera v. Avelino) In other words, the legislative
(§§30-31) power of Congress is plenary.
XIV. Initiative and Referendum (§ 32)
E. Limitations on legislative power:
I. LEGISLATIVE POWER 1. Substantive limitations135
2. Procedural limitations136
Definition of Legislative Power
Where Vested 1. Substantive limitations:
Classification of Legislative Power a. Express Limitations
Scope of Legislative power i. Bill of Rights137
Limitations on Legislative Power
Non-delegability of Legislative power ii. On Appropriations138
Rationale of the Doctrine of Non-delegability 135
Valid delegation of legislative powers Refer to the subject matter of legislation. These are limitations on
Delegation of rule-making power the content of laws.
136
Requisites for a valid delegation of rule-making Formal limitations refer to the procedural requirements to be
power complied with by Congress in the passage of the bills. (Sinco, Phil.
Political Law)
Sufficient Standards 137
Examples of Invalid of Delegation Bill of Rights
o No law shall be passed abridging
freedom of speech, of expression etc (art. 3 §4)
Section 1. The Legislative power o No law shall be made respecting an
shall be vested in the Congress of the establishment of religion (art. 3 §5)
Philippines which shall consist of a o No law impairing the obligation of
Senate and a House of contracts shall be passed. (art 3 §10)
Representatives, except to the extent o No ex post facto law or bill of
reserved to the people by the attainder shall be enacted. (art. 3 §22)
138
provision on initiative and On Appropriations
referendum. o Congress cannot increase
appropriations by the President (art. 6 §25)
o (art. 6 29(2)

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iii. On Taxation139 (1) Delegation of tariff power to the


iv. On Constitutional Appellate President
jurisdiction of SC140 (2) Delegation of emergency powers to
v. No law granting a title of royalty or the President
nobility shall be enacted (art. 6 §31) (3) Delegation to LGU’s
b. Implied limitations
i. Congress cannot legislate Note:
irrepealable laws Some commentators include (a) delegation to
ii. Congress cannot delegate legislative the people at large and (b) delegation to
powers administrative bodies to the exceptions.(See Cruz,
iii. Non-encroachment on powers of Philippine Political Law p 87, 1995 ed.) However, I
other departments submit this is not accurate.
I submit that legislative power is not delegated
2. Procedural limitations: to the people because in the first place they are the
a. Only one subject primary holder of the power; they only delegated
b. Three readings on separate days such power to the Congress through the
c. Printed copies in its final form 3 days before Constitution. (See Preamble and Article II Section
passage of the bill. (art 6 § 26) 1) Note that Article VI Section 1 does not delegate
power to the people. It reserves legislative power
F. Non-delegability of Legislative power to the people. -asm
What is delegated to administrative bodies is
Doctrine of Non-delegation of legislative not legislative power but rule-making power or law
powers: The rule is delegata potestas non potest execution.
delagari-what has been delegated cannot be
delegated. The doctrine rests on the ethical I. Delegation of rule-making powers
principle that a delegated power constitutes not
only a right but duty to be performed by the What is delegated to administrative bodies is not
delegate by the instrumentality of his own judgment legislative power but rule-making power or law
and not through the intervening mind of another. execution. Administrative agencies may be allowed
either to:
G. Rationale of the Doctrine of Non-delegability:  Fill up the details on otherwise
complete statue or
(1) Based on the separation of powers.  Ascertain the facts necessary to bring
(Why go to the trouble of separating the three a “contingent” law or provision into actual
powers of government if they can straightaway operation.
remerge on their own notion?)
(2) Based on due process of law. Such Power of Subordinate Legislation. It is the
precludes the transfer of regulatory functions authority of the administrative body tasked by the
to private persons. legislature to implement laws to promulgate rules
(3) And, based on the maxim, “degelata and regulations to properly execute and implement
potestas non potest delegari” meaning what laws.
has been delegated already cannot be further
delegated. Contingent Legislation
The standby authority given to the President to
H. Valid delegation of legislative powers increase the value added tax rate in the VAT Law,
R.A. 9337 was upheld as an example of contingent
legislation where the effectivity of the law is made
General Rule: Legislative power cannot be
to depend on the verification by the executive of
delegated
the existence of certain conditions.141
Exceptions:
In Gerochi v. DENR142 the power delegated to the
Energy Regulator Board to fix and impose a
universal charge on electricity end-users was
139
On Taxation challenged as an undue delegation of the power to
o (art. 6 §28 and 29(3)) tax. The Court said that, since the purpose of the
o (art. 14 §4(3)) law was not revenue generation but energy

140 141
No law shall be passed increasing the appellate jurisdiction of Abakada Guru Party List Officers v. Executive Secretary, G.R.
the SC without its advice and concurrence (art. 6 §30) 168056, September 1, 2005. Reconsidered October 18, 2005.
142
G.R. No. 159796, July 17, 2007

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regulation, the power involved was more police the ground that it constituted an undue
power than the power to tax. Moreover the Court delegation of legislative power. There is
added that the power to tax can be used for however a reference to “imminent and grave
regulation. As to the validity of the delegation to an danger of a substantive evil: in Section 6(c).
executive agency, the Court was satisfied that the Decide.
delegating law was complete in itself and the A: The law provides a precise and sufficient
amount to be charged was made certain by the standard, the clear and present danger test
parameters set by the law itself. in Section 6(a). The reference to imminent
and grave danger of a substantive evil in
J. Requisites for a valid delegation of rule-making Section 6(c) substantially means the same.
power or execution: (2005 Bar Question) (Bayan v. Ermita)

(1) The delegating law must be complete in itself 4. Examples of sufficient standards
o “Necessary or advisable in the public interest” as
– it must set therein the policy to be carried out a standard. Public interest in this case is sufficient
or implemented by the delegate. standard pertaining to the issuance or cancellation
(2) The delegating law must fix a sufficient of certificates or permits. And the term “public
standard- the limits of which are sufficiently interest’ is not without a settled meaning. (People vs.
Rosenthal)
determinate or determinable, to which the
o “Necessary in the interest of law and
delegate must conform in the performance of
order” as a standard. An exception to the general
his functions. rule, sanctioned by immemorial practice, permits the
central legislative body to delegate legislative
Importance of Policy. Without a statutory powers to local authorities. (Rubi vs. Provincial
declaration of policy, the delegate would, in effect, Board of Mindoro)
make or formulate such policy, which is the o “To promote simplicity, economy and
essence of every law. efficiency” as a standard. (Cervantes vs. Auditor
General)
Importance of Standard. Without standard, there o “Of a moral, educational, or amusing and
harmless character” as a standard. (Mutual Film Co.
would be no means to determine with reasonable
vs. Industrial Commission of Ohio)
certainty whether the delegate has acted within or o “To maintain monetary stability promote
beyond the scope of his authority. Hence, he could a rising level of production, employment and real
thereby arrogate upon himself the power, not only income” as a standard. (People vs. Jollife)
to make law, but also to unmake it, by adopting o “Adequate and efficient instruction” as
measures inconsistent with the end sought to be standard. (Philippine Association of Colleges and
attained by the Act of Congress. (Pelaez v. Auditor Universities vs. Sec. of Education.
General) o “Justice and equity and substantial merits of the
case” as a standard. The discretionary power thus
K. Standards conferred is judicial in character and does not
1. Need not be explicit infringe upon the principle of separation of powers
2. May be found in various parts of the statute the prohibition against the delegation of legislative
function (International Hardwood and Veneer Co. vs.
3. May be embodied in other statutes of the
Pangil Federation of Labor)
same statute o “Fair and equitable employment
practices” as a standard. The power of the POEA in
1. A legislative standard need not be explicit or requiring the model contract is not unlimited as there
formulated in precise declaratory language. It can is a sufficient standard guiding the delegate in the
be drawn from the declared policy of the law and exercise of the said authority. (Eastern Shipping
from the totality of the delegating statute. (Osmena Lines Inc. vs. POEA)
v. Orbos) It can be implied from the policy and o “As far as practicable”, “decline of crude
purpose of the law (Agustin v. Edu) oil prices in the world market” and “stability of the
peso exchange rate to the US dollar” as standards.
2. A legislative standard may be found in various The dictionary meanings of these words are well
parts of the statute. (Tablarin v. Guttierez) settled and cannot confuse men of reasonable
intelligence. (However, by considering another factor
to hasten full deregulation, the Executive
3. A legislative standard need not be found in the Department rewrote the standards set forth in the
law challenged and may be embodied in other statute. The Executive is bereft of any right to alter
statues on the same subject. (Chiongbayan v either by subtraction or addition the standards set in
Orbos) the statute.) (Tatad vs. Sec of Energy)

Q: Petitioners questioned the grant of the L. Examples of invalid delegation


powers to mayors to issue permits for public o Where there is no standard that the officials
assemblies in the Public Assembly Act on must observe in determining to whom to distribute
the confiscated carabaos and carabeef, there is thus

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an invalid delegation of legislative power. (Ynot v. (3) Power of Taxation (art. 6 §28(3), art. 14 §4(3),
IAC) art 6, §29(4))
o Where a provision provides that the penalty (4) Investigatory Power (art. 6 §21)
would be a fine or 100 pesos OR imprisonment in (5) Oversight function (art. 6 §22)
the discretion of the court without prescribing the (6) Power to declare the existence of state of war
minimum and maximum periods of imprisonment, a (art. 6 §23(1))
penalty imposed based thereon is unconstitutional. It (7) Power to act as Board of Canvassers in election
is not for the courts to fix the term of imprisonment
of President146 (art 7 §4)
where no points of reference have been provided by
the legislature. (People v. Dacuycuy) (8) Power to call a special election for President
o Where the statute leaves to the sole discretion and Vice-President. (art. 7 §10)
of the Governor-General to say what was and what (9) Power to judge President’s physical fitness to
was not “any cause” for enforcing it, the same is an discharge the functions of the Presidency (art.
invalid delegation of power. The Governor-General 7§11)
cannot by proclamation, determine what act shall (10) Power to revoke or extend suspension of the
constitute a crime or not. That is essentially a privilege of the writ of habeas corpus or
legislative task. (US vs. Ang Tang) declaration of martial law. (art. 7 §18)
o Where a statute requires every public utility “to
(11) Power to concur in Presidential amnesties.
furnish annually a detailed report of finances and
operations in such form and containing such matter Concurrence of majority of all the members of
as the Board may, from time to time, by order, Congress. (art.7 §19)
prescribe”, it seems that the legislature simply (12) Power to concur in treaties or international
authorized the Board to require what information the agreements. Concurrence of at least 2/3 of all
Board wants. Such constitutes an unconstitutional the members of the Senate.(art.7 §21)
delegation of legislative power. (Compana General (13) Power to confirm certain
de Tabacos de Filipinas vs. Board of Public Utility appointments/nominations made by the
Commissioners)
President (art.7 §9, art.7§16)
o Where the legislature has not made the (14) Power of Impeachment (art.11§2)
operation (execution) of a statute contingent upon (15) Power relative to natural resources147 (art. 12
specified facts or conditions to be ascertained by the §2)
provincial board but in reality leaves the entire
(16) Power of internal organization
matter for the various provincial boards to
determine, such constitute an unconstitutional Election of officers
delegation of legislative power. A law may not be Promulgate internal rules
suspended as to certain individuals only, leaving the Disciplinary powers (art.6 §16)
law to be enjoyed by others. (People vs. Vera)
o The authority to CREATE municipal corporations Note: Members of Congress have immunity from
is essentially legislative in nature. arrest and parliamentary immunity.148 (art 6
§§11&12)
II. POWERS OF CONGRESS
III. Congress

A. Inherent Powers
B. Express Powers Composition of Congress
Bicameralism v. Unicameralism
A. INHERENT POWERS Composition of Senate
(1) Police power Qualification of Senators
(2) Power of eminent domain Senators’ Term of Office / Staggering of Terms
(3) Power of taxation Composition of HR
(4)Implied Powers (Contempt Power)143 Qualification of Members of HR
Domicile
B. EXPRESS POWERS Property Qualification
Term of Office of Representatives
Party-List System
(1) Legislative Power (art 6 sec1)
Legislative Districts
(a) Ordinary- power to pass ordinary laws
(b) Constituent144- power to amend and or
revise the Constitution and manner of preparation of budget shall be prescribed by law.
(2) Power of the Purse145 (art. 6§25) (art 6 §25)
146
This function is non-legislative. (Pimentel v. Joint Committee on
143 Congress. June 22, 2004)
Page 12 of 2008 UP Bar Ops Reviewer. 147
144
Antonio B. Nachura, Outline/Reviewer in Political Law (2006
Propose amendment to or revision of the Constitution (art 17 ed.)
§1)Call for a constitutional convention (art 17 §3) 148
Privilege from attest is not given to Congress as a body, but rather
145
No money shall be paid out of the Treasury except in pursuance one that is granted particularly to each individual member of it.
of an appropriation made by law. (art 6 §29(1)) The form, content, (Coffin v. Coffin, 4 Mass 1)

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Election
Salaries Section 3. No person shall be a
senator unless he is a natural-born
A. Composition of Congress citizen of the Philippines, and, on the
day of the election, is at least thirty-
The Congress of the Philippines which shall consist five years of age, able to read and
of a Senate and a House of Representatives. (art 6 write, a registered voter, and a
§1) resident of the Philippines for not less
than two years immediately preceding
B. Bicameralism v. Unicameralism the day of election.

The Congress of the Philippines is a bicameral Qualifications of a senator


body composed of a Senate and House of (1) Natural-born citizen of the Philippines
Representatives, the first being considered as the (2) At least 35 years of age on the day of
upper house and the second the lower house. the election
(3) Able to read and write
Advantages of Unicameralism. (4) Registered voter
1. Simplicity of organization (5) Resident of the Philippines for not
resulting in economy and efficiency less than 2 years immediately preceding the
2. Facility in pinpointing day of election.
responsibility for legislation “On the day of the election” means on the day the
3. Avoidance of duplication. votes are cast. (Bernas Primer)

Advantages of Bicameralism. E. Senators’ Term of Office


1. Allows for a body with a national Term
perspective to check the parochial Commencement of Term
tendency of representatives elected by Limitation
district. Effect of Voluntary Renunciation
2. Allows for more careful study of Staggering of Terms
legislation Reason for Staggering
3. Makes the legislature less susceptible
to control by executive Section 4. The term of office of the
4. Serves as training ground for national Senators shall be six years and shall
leaders.149 commence, unless otherwise
provided by law, at noon on the
C. Composition of Senate thirtieth day of June next following
their election.
Section 2. The Senate shall be No Senator shall serve for more than
composed of twenty-four senators two consecutive terms. Voluntary
who shall be elected at large by the renunciation of the office for any
qualified voters of the Philippines, as length of time shall not be considered
may be provided by law. as an interruption in the continuity of
his service for the full term for which
he was elected.
Elected at large, reason. By providing for a
membership elected at large by the electorate, this
rule intends to make the Senate a training ground 1. Term. The term of office of the Senators shall be
for national leaders and possibly a springboard for 6 years.
the Presidency. The feeling is that the senator,
having national rather than only a district 2. Commencement of term. The term of office of
constituency, will have a broader outlook of the the Senators shall commence on 12:00 noon of
problems of the country instead of being restricted June 30 next following their election. (unless
by parochial viewpoints and narrow interests. With otherwise provided by law)
such a perspective, the Senate is likely to be more
circumspect and broad minded than the House of 3. Limitation. A Senator may not serve for more
Representatives.150 than two consecutive terms. However, they may
serve for more than two terms provided that the
D. Qualifications of a Senator terms are not consecutive.

4. Effect of Voluntary Renunciation. Voluntary


149
Bernas, Primer p 224, 2006 ed. renunciation of office for any length of time shall
150
Cruz, Phlippine Political Law. not be considered as an interruption in the

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continuity of his service for the full term for which period of not less than one year
he was elected. (art. 6 § 4) immediately preceding the day of the
election.
5. Staggering of Terms. The Senate shall not at
any time be completely dissolved. One-half of the Qualifications of District Representatives:
membership is retained as the other half is (1) Natural-born citizen of the Philippines
replaced or reelected every three years. (2) At least 25 years of age on the day of
the election
6. Reason for Staggering. The continuity of the (3) Able to read and write
life of the Senate is intended to encourage the (4) A registered voter in the district in
maintenance of Senate policies as well as which he shall be elected
guarantee that there will be experienced members (5) A resident of the district in which he
who can help and train newcomers in the shall be elected for a period not less than 1
discharge of their duties.151 year immediately preceding the day of the
election.
F. Composition of House of Representatives
H. Domicile
Section 5. (1) The House of
Representatives shall be composed Domicile
of not more than two hundred and Residence as a qualification means “domicile”.
fifty members, unless otherwise fixed Normally a person’s domicile is his domicile of
by law, who shall be elected from origin.
legislative districts apportioned
among the provinces, cities, and the If a person never loses his or her domicile, the one
Metropolitan Manila area in year requirement of Section 6 is not of relevance
accordance with the number of their because he or she is deemed never to have left the
respective inhabitants, and on the place. (Romualdez-Marcos v. COMELEC)
basis of a uniform and progressive
ratio, and those who, as provided by A person may lose her domicile by voluntary
law, shall be elected through a party- abandonment for a new one or by marriage to a
list system of registered national, husband (who under the Civil Code dictates the
regional, and sectoral parties or wife’s domicile).
organizations.
Change of domicile
Composition. The composition of the House of To successfully effect a change of domicile, there
Representatives shall be composed of not more must be:
than 250 members unless otherwise fixed by law. o Physical Presence-Residence or
bodily presence in the new locality (The
Representatives shall be elected from legislative change of residence must be voluntary)
districts and through party-list system.
o Animus manendi -Intention to remain
a) District representatives in the new locality (The purpose to remain in
b) Party-list representatives or at the domicile of choice must be for an
indefinite period of time)
c) Sectoral representatives
o Animus non revertendi-Intention to
(these existed only until 1998)
abandon old domicile
G. Qualification of Representatives
A lease contract does not adequately support a
change of domicile. The lease does not constitute
Section 6. No person shall be a a clear animus manendi. (Domino v. COMELEC)
member of the House of However a lease contract coupled with affidavit of
Representatives unless he is a the owner where a person lives, his marriage
natural born citizen of the Philippines certificate, birth certificate of his daughter and
and, on the day of the election, is at various letter may prove that a person has
least twenty-five years of age, able to changed his residence. (Perez v. COMELEC)
read and write, and except the party-
list representatives, a registered voter I. Property Qualification
in the district in which he shall be
elected, and a resident thereof for a
Property qualifications are contrary to the social
justice provision of the Constitution. Such will also
151
Cruz, Philippine Political Law.

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be adding qualifications provided by the Party-list Representatives


Constitution. Guidelines
Parties or organizations disqualified
J. Term of Office of Representatives Qualifications of a party-list nominee

Section 7. The members of the Section 5.


House of Representatives shall be (2) The party-list representatives shall
elected for a term of three years constitute twenty per centum of the
which shall begin, unless otherwise total number of representatives
provided by law, at noon on the including those under the party-list.
thirtieth day of June next following For three consecutive terms after the
their election. ratification of this Constitution, one-
No member of the House half of the seats allocated to party-list
Representatives shall serve for more representatives shall be filled, as may
than three consecutive terms. be provided by law, by selection or
Voluntary renunciation of the office election from the labor, peasant,
for any length of time shall not be urban poor, indigenous cultural
considered as an interruption in the communities, women, youth, and
continuity of his service for the full such other sectors as may be
term for which he was elected. provided by law, except the religious
sector.
Term v. Tenure. Term refers to the period during
which an official is entitled to hold office. Tenure 1. Party-list System. (RA 7941) The party-list
refers to the period during which the official actually system is a mechanism of proportional
holds the office. representation in the election of representatives of
the House of Representatives from national,
The term of office of Representatives shall be 3 regional, and sectoral parties or organizations or
years. The term of office of Representatives shall coalitions thereof registered with the Commission
commence on 12:00noon of June 30 next following on Elections.
their election. (unless otherwise provided by law)
Reason for party-list system. It is hoped that the
A Representative may not serve for more than 3 system will democratize political power by
consecutive terms. However, he may serve for encouraging the growth of a multi-party system.
more than 3 terms provided that the terms are not
consecutive. (1996 Bar Question) 2. Party-list representatives
Ceiling. “The party-list representatives shall
Why three years? One purpose in reducing the constitute 20% of the total number of
term for three years is to synchronize elections, representatives.” Section 5(2) of Article VI is not
which in the case of the Senate are held at three- mandatory. It merely provides a ceiling for party-list
year intervals (to elect one-half of the body) and in seats in Congress. (Veterans Federation Party v.
the case of the President and Vice-President every COMELEC; BANAT v. COMELEC)
six years.152
Veternas Doctrine (Old): The 2% threshold
Voluntary renunciation of office for any length of requirement and the 3 seat-limit provided in RA
time shall not be considered as an interruption in 7941 are valid. Congress was vested with broad
the continuity of his service for the full term for power to define and prescribe the mechanics of the
which he was elected. party-list system of representation. Congress
wanted to ensure that only those parties,
Abandonment of Dimaporo. The case of organizations and coalitions having sufficient
Dimaporo v. Mitra which held that “filing of COC for number of constituents deserving of representation
a different position is a voluntary renunciation” has are actually represented in Congress. (Veterans
been abandoned because of the Fair Elections Act. Federation Party v. COMELEC)

The filing of COC is not constitutive of voluntary Banat Doctrine (2009): The 2% threshold in the
renunciation. (Farinas v. Executive Secretary; distribution of additional party-list seats. The
Quinto v. COMELEC, December 1, 2009) allocation of additional seats under the Party-List
System shall be in accordance with the procedure
K. Party List System used in Table 3 of the Decision. (Banat v. Comelec,
Party-list system G.R. No. 179295, April 21, 2009)

152 Computation
Cruz, Philippine Political law.

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The Court reiterated that “the prevailing formula for the 8. It fails to participate in the last two (2)
computation of additional seats for party-list winners is preceding elections or fails to obtain at least
the formula stated in the landmark case of Veterans.” two per centum (2%) of the votes cast under
CIBAC v COMELEC, G.R. No. 172103 (2007) the party-list system in the two (2) preceding
elections for the constituency in which it has
No. of votes of registered.
concerned party No. of Additional
additional seats Seats for 5. Qualifications of a party-list nominee in RA
____________ allocated to the=concerned 7941:
_ xfirst party party (1) Natural-born citizen of the Philippines;
(2) Registered Voter;
(3) Resident of the Philippines for a period of not
No. of votes less than 1 year immediately preceding the
of first party day of election
(4) Able to read and write
(5) A bona fide member of the party or organization
which he seeks to represent for at least 90
3. Guidelines on what organizations may apply days preceding the day of election
in the party-list system: (6) At least 25 years of age. (Ang Bagong Bayani v.
(1) The parties or organizations must represent COMELEC)
the marginalized and underrepresented in
Section 5 of RA 7941; Political Parties. Political parties may participate
(2) Political parties who wish to participate must in the party-list system (as long as they comply with
comply with this policy; the guidelines in Section 5 of RA 7941.) (Ang
(3) The religious sector may not be represented; Bagong Bayani v. COMELEC) Major political
(4) The party or organization must not be parties are disallowed from participating in party-list
disqualified under Section 6 of RA 7941; elections. (Banat v. Comelec, G.R. No. 179295,
(5) The party or organization must not be an April 21, 2009)
adjunct of or a project organized or an entity
funded or assisted by the government; Section 10 of RA 7941 provides that the votes cast
(6) Its nominees must likewise comply with the for a party which is not entitled to be voted for the
requirements of the law; party-list system should not be counted. The votes
(7) The nominee must likewise be able to they obtained should be deducted from the
contribute to the formulation and enactment of canvass of the total number of votes cast for the
legislation that will benefit the nation. (Ang party-list system. (Ang Bagong Bayani v.
Bagong Bayani v. COMELEC, June 26, 2001) COMELEC)

4. Parties or organizations disqualified Religious sectors v. Religious leaders. There is


The COMELEC may motu propio or upon verified a prohibition of religious sectors. However, there is
complaint of any interested party, remove or cancel no prohibition from being elected or selected as
after due notice and hearing the registration of any sectoral representatives.
national, regional or sectoral party, organization or
coalition on any of the following grounds: L. Legislative Districts
1. It is a religious sect or denomination, Apportionment
organization or association organized for Reason for the Rule
religious purposes; Reapportionment
2. It advocates violence or unlawful Gerrymandering
means to seek its goal;
3. It is a foreign party or organization; Section 5
4. It is receiving support from any (3) Each legislative district shall
foreign government, foreign political party, comprise, as far as practicable,
foundation, organization, whether directly or contiguous, compact and adjacent
through any of its officers or members or territory. Each city with a population
indirectly through third parties for partisan of at least two hundred fifty thousand,
election purposes; or each province, shall have at least
5. It violates or fails to comply with laws, one representative.
rules or regulations relating to elections. (4) Within three years following the
6. It declares untruthful statements in its return of every census, the Congress
petition; shall make a reapportionment of
7. It has ceased to exist for at least one legislative districts based on the
(1) year; standards provided in this section.

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1. Apportionment M. Election
Legislative districts are apportioned among the 1. Regular Election
provinces, cities, and the Metropolitan Manila area. 2. Special Election

Legislative districts are apportioned in accordance Section 8. Unless otherwise provided


with the number of their respect inhabitants and on by law, the regular election of the
the basis of a uniform and progressive ratio. (art. 6 Senators and the Members of the
§ 5) House of Representatives shall be
held on the second Monday of May.
Each city with a population of at least 250,000 shall
have at least one representative. Regular election
A person holding office in the House must yield his
Each province shall have at least one or her seat to the person declared by the
representative. COMELEC to be the winner. The Speaker shall
administer the oath to the winner. (Codilla v. De
The question of the validity of an apportionment Venecia)
law is a justiciable question. (Macias v. Comelec)
Disqualified “winner”
2. Reason for the rule. The underlying principle The Court has also clarified the rule on who should
behind the rule for apportionment (that assume the position should the candidate who
representative districts are apportioned among received the highest number of votes is
provinces, cities, and municipalities in accordance disqualified. The second in rank does not take his
with the number of their respective inhabitants, and place. The reason is simple: “It is of no moment
on the basis of a uniform and progressive ration.”) that there is only a margin of 768 votes between
is the concept of equality of representation protestant and protestee. Whether the margin is
which is a basic principle of republicanism. One ten or ten thousand, it still remains that protestant
man’s vote should carry as much weight as the did not receive the mandate of the majority during
vote of every other man. the elections. Thus, to proclaim him as the duly
elected representative in the stead of protestee
Section 5 provides that the House shall be would be anathema to the most basic precepts of
composed of not more than 250 members unless republicanism and democracy as enshrined within
otherwise provided by law. Thus, Congress itself our Constitution.”153
may by law increase the composition of the HR.
(Tobias v. Abalos)
Section 9. In case of vacancy in the
When one of the municipalities of a congressional Senate or in the House of
district is converted to a city large enough to entitle Representatives, a special election
it to one legislative district, the incidental effect is may be called to fill such vacancy in
the splitting of district into two. The incidental the manner prescribed by law, but the
arising of a new district in this manner need not be Senator or Member of the House of
preceded by a census. (Tobias v. Abalos) Representatives thus elected shall
serve only for the unexpired term.
3. Reapportionment Special election
Reapportionment can be made thru a special law. A special election to fill in a vacancy is not
(Mariano v. COMELEC) mandatory.

Correction of imbalance as a result of the increase In a special election to fill a vacancy, the rule is that
in number of legislative districts must await the a statute that expressly provides that an election to
enactment of reapportionment law. (Montejo v. fill a vacancy shall be held at the next general
COMELEC) elections, fixes the date at which the special
election is to be held and operates as the call for
4. Gerrymandering that election. Consequently, an election held at the
Gerrymandering is the formation of one legislative time thus prescribed is not invalidated by the fact
district out of separate territories for the purpose of that the body charged by law with the duty of
favoring a candidate or a party. calling the election failed to do so. This is because
the right and duty to hold the election emanate
Gerrymandering is not allowed. The Constitution from the statue and not from any call for election by
provides that each district shall comprise, as far as some authority and the law thus charges voters
practicable, contiguous, compact and adjacent
territory.
153
Ocampo v. HRET, G.R. No. 158466. June 15, 2004.

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with knowledge of the time and place of the audited by the Commission on Audit ‘which shall
election. (Tolentino v. COMELEC) publish annually an itemized list of amounts paid
and expenses incurred for each Member.154
Special Election (R.A. 6645)
1. No special election will be called if IV. PRIVILEGES OF MEMBERS
vacancy occurs:
a. at least eighteen (18) months before the A. Privilege from Arrest
next regular election for the members of B. Parliamentary freedom of speech
the Senate; and debate
b. at least one (1) year before the next
regular election members of Congress Section 11. A Senator or Member of
2. The particular House of Congress the House of Representatives shall,
where vacancy occurs must pass either a in all offenses punishable by not more
resolution if Congress is in session or the than six years imprisonment, be
Senate President or the Speaker must sign a privileged from arrest while the
certification, if Congress is not in session, Congress is in session. No member
a. declaring the existence of vacancy; shall be questioned nor be held liable
b. calling for a special election to be held in any other place for any speech or
within 45 to 90 days from the date of the debate in the Congress or in any
resolution or certification. committee thereof.
3. The Senator or representative elected
shall serve only for the unexpired term. A. Privilege from Arrest (Parliamentary Immunity of
Arrest)
N. Salaries Privilege
When increase may take effect Purpose
Reason fro the delayed effect of increased salary Scope
Emoluments Limitations
Allowances Privilege is Personal
Trillanes Case
Section 10. The salaries of Senators
and Members of the House of 1. Privilege. A member of Congress is privileged
Representatives shall be determined from arrest while Congress is in session in all
by law. No increase in said offenses (criminal or civil) not punishable by more
compensation shall take effect until than 6 years imprisonment.
after the expiration of the full term of
all the members of the Senate and 2. Purpose. Privilege is intended to ensure
the House of Representatives representation of the constituents of the member of
approving such increase. Congress by preventing attempts to keep him from
attending sessions.155
1. When increase may take effect. No increase in
the salaries of Senators and Representatives shall 3. Scope. Parliamentary immunity only includes
take effect until after the expiration of the full term the immunity from arrest, and not of being filed suit.
of all the members of the Senate and House of
Representatives. 4. Limitations on Parliamentary Immunity
1. Crime has a maximum penalty of not more
2. Reason for the delayed effect of increased than 6 years;
salary. Its purpose is to place a “legal bar to the 2. Congress is in session, whether regular or
legislators’ yielding to the natural temptation to special;
increase their salaries. (PHILCONSA v. Mathay) 3. Prosecution will continue independent of
arrest;
3. Emoluments. Bernas submits that, by appealing 4. Will be subject to arrest immediately when
to the spirit of the prohibition, the provision may be Congress adjourns.
read as an absolute ban on any form of direct or
indirect increase of salary (like emoluments). While in session. The privilege is available “while
the Congress is in session,” whether regular or
4. Allowances. A member of the Congress may special and whether or not the legislator is actually
receive office and necessary travel allowances attending a session. “Session” as here used does
since allowances take effect immediately. Nor is not refer to the day-to-day meetings of the
there a legal limit on the amount that may be
appropriated. The only limit is moral, because, 154
Bernas Commentary, p700.
according to Section 20, the books of Congress are 155
Cruz, Philippine Political Law.

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legislature but to the entire period from its initial criminally for violation of the Anti-Graft and
convening until its final adjournment.156 Hence the Corrupt Practices Act?
privilege is not available while Congress is in
recess. A: Yes. In Paredes v. Sandiganbayan, the
Court held that the accused cannot validly
Why not available during recess. Since the argue that only his peers in the House of
purpose of the privilege is to protect the legislator Representatives can suspend him because
against harassment which will keep him away from the court-ordered suspension is a preventive
legislative sessions, there is no point in extending measure that is different and distinct from
the privilege to the period when the Congress is the suspension ordered by his peers for
not in session. disorderly behavior which is a penalty.

5. Privilege is personal. Privilege is personal to 6. Trillanes Case (June 27, 2008)


each member of the legislature, and in order that In a unanimous decision penned by Justice Carpio
its benefits may be availed of, it must be asserted Morales, the SC en banc junked Senator Antonio Trillanes’
at the proper time and place; otherwise it will be petition seeking that he be allowed to perform his duties as a
considered waived.157 Senator while still under detention. SC barred Trillanes from
attending Senate hearings while has pending cases, affirming
the decision of Makati Judge Oscar Pimentel.
Privilege not granted to Congress but to its The SC reminded Trillanes that “election to office does
members. Privilege from arrest is not given to not obliterate a criminal charge”, and that his electoral victory
Congress as a body, but rather one that is granted only signifies that when voters elected him, they were already
particularly to each individual member of it. (Coffin fully aware of his limitations.
v. Coffin, 4 Mass 1)158 The SC did not find merit in Trillanes’ position that his
case is different from former representative Romeo Jalosjos,
Privilege is reinforced by Article 145 of the Revised who also sought similar privileges before when he served as
Penal Code-Violation of Parliamentary Immunity. Zamboanga del Norte congressman even while in detention.
Quoting parts of the decision on Jalosjos, SC said that
“allowing accused-appellant to attend congressional sessions
Note: The provision says privilege from arrest; it and committee meetings five days or more a week will virtually
does not say privilege from detention. make him a free man… Such an aberrant situation not only
elevates accused appellant’s status to that of a special class, it
Q: Congressman Jalosjos was convicted for would be a mockery of the purposes of the correction system.”
rape and detained in prison, asks that he be The SC also did not buy Trillanes’ argument that he be
allowed to attend sessions of the House. given the same liberal treatment accorded to certain detention
A: Members of Congress are not exempt prisoners charged with non-bailable offenses, like former
President Joseph Estrada and former Autonomous Region in
from detention for crime. They may be Muslim Mindanao (ARMM) governor Nur Misuari, saying these
arrested, even when the House in session, emergency or temporary leaves are under the discretion of the
for crimes punishable by a penalty of more authorities or the courts handling them.
than six months. The SC reminded Trillanes that he also benefited from
these “temporary leaves” given by the courts when he was
Q: Congressman X was convicted for a allowed to file his candidacy and attend his oath-taking as a
crime with a punishment of less than 6 senator before.
years. He asks that he be allowed to attend The SC also believes that there is a “slight risk” that
Trillanes would escape once he is given the privileges he is
sessions of the House contending that the asking, citing the Peninsula Manila incident last November.
punishment for the crime for which he was
convicted is less than 6 years. B. Privilege of Speech and Debate
A: I submit that Congressman X can be
Requirements
detained even if the punishment imposed is
Purpose
less than 6 years. The provision only speaks
Scope
of privilege from arrest. It does not speak of
Privilege Not Absolute
exemption from serving sentence after
conviction. Members of Congress are not
1. Isagani Cruz: 2 Requirements for the
exempt from detention for crime.-asm
privilege to be availed of:
1. That the remarks must be made while the
Q: Can the Sandiganbayan order the legislature or the legislative committee is
preventive suspension of a Member of the functioning, that is in session;159 (See Jimenez v.
House of Representatives being prosecuted Cabangbang)

156
Cruz, Philippine Political Law.
157
Sinco, Philippine Political Law, p. 187, 10th ed. 159
Cruz, Philippine Political Law p. 116 (1995 ed.); See Jimenez v.
158
Sinco, Philippine Political Law, p. 187, 10th ed. Cabangbang.

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2. That they must be made in connection with the “legislative action”, that is, it must be part of
discharge of official duties.160 the deliberative and communicative process by
which legislators participate in committee or
But wait! As regards Requirement #1 provided congressional proceedings in the
by Cruz, Bernas Primer provides: to come consideration of proposed legislation or of
under the privilege, it is not essential that the other matters which the Constitution has
Congress be in session when the utterance is placed within the jurisdiction of Congress.
made. What is essential is that the utterance (Gravel v. US)
must constitute “legislative action.”161 (4) The privilege extends to agents of
assemblymen provided that the “agency”
Libelous remarks not in exercise of legislative consists precisely in assisting the legislator in
function shall not be under privilege of speech. the performance of “legislative action” (Gravel
v. US)
To invoke the privilege of speech, the matter must
be oral and must be proven to be indeed 4. Privilege not absolute. The rule provides that
privileged. the legislator may not be questioned “in any other
place,” which means that he may be called to
2. Purpose. It is intended to leave legislator account for his remarks by his own colleagues in
unimpeded in the performance of his duties and the Congress itself and, when warranted, punished
free form harassment outside.162 for “disorderly behavior.”165
Privilege of speech and debate enables the 5. Privilege and the Supreme Court
legislator to express views bearing upon the public
interest without fear of accountability outside the
halls of the legislature for his inability to support his A senator who has crossed the limits of decency
statements with the usual evidence required in the and good professional conduct by giving
court of justice. In other words, he is given more statements which were intemperate and highly
leeway than the ordinary citizen in the ventilation of improper in substance may not be disbarred or be
matters that ought to be divulged for the public imposed with disciplinary sanctions by the
good.163 Supreme Court. Courts do not interfere with the
legislature or its members in the manner they
To enable and encourage a representative of the perform their functions in the legislative floor or in
public to discharge his public trust with firmness committee rooms. Any claim of an unworthy
and success" for "it is indispensably necessary that purpose or of the falsity and mala fides of the
he should enjoy the fullest liberty of speech and statement uttered by the member of the Congress
that he should be protected from resentment of does not destroy the privilege. The disciplinary
every one, however, powerful, to whom the authority of the assembly and the voters, not the
exercise of that liberty may occasion offense. courts, can properly discourage or correct such
(Osmena V. Pendatun cited in Pobre v. Defensor- abuses committed in the name of parliamentary
Santiago, 2009) immunity. (Pobre v. Defensor-Santiago, 2009)

3. Scope:164
(1) The privilege is a protection only against V. DUTY TO DISCLOSE; PROHIBITIONS
forums other than the Congress itself.
(Osmena v. Pendatun)
(2) “Speech or debate” includes utterances A. Duty to Disclose
made in the performance of official functions, B. Prohibitions
such as speeches delivered, statements
made, votes cast, as well as bills introduced A. Duty to disclose
and other acts done in the performance of
official duties. (Jimenez v. Cabangbang) Section 12. All members of the
(3) To come under the privilege, it is not Senate and the House of
essential that the Congress be in session Representative shall, upon
when the utterance is made. What is essential assumption of office, make a full
is that the utterance must constitute disclosure of their financial and
business interests. They shall notify
160
Cruz, Philippine Political Law p. 116 (1995 ed.). the House concerned of a potential
161 conflict of interest that may arise from
Bernas Primer, p. 245 (2006 ed.)
162
Bernas Primer, p. 245 (2006).
163
Cruz, Philippine Political Law.
164 165
Bernas Primer, p. 245 (2006 ed.) Cruz, Philippine Political Law; See Osmena v. Pendatun.

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the filing of a proposed legislation of (1) To hold any other office or


which they are authors. employment in the government, or any
subdivision, agency, or instrumentality
This provision speaks of duty to disclose the thereof, including government-owned or
following: controlled corporation or their subsidiaries
(1) Financial and business interest upon during his term without forfeiting his
assumption of office seat. (Incompatible office)
(2) Potential conflict of interest that may arise (2) To be appointed to any office which
from filing of a proposed legislation of which may have been created or the
they are authors. emoluments thereof increased during the
term for which he was elected. (Forbidden
office)
B. Prohibitions (Disqualifications and Inhibitions) Prohibitions on lawyer-legislators
Prohibitions (3) To personally appear as counsel
Disqualifications before any court of justice or before the
Prohibitions on lawyer-legislators Electoral Tribunals, or quasi-judicial and
Conflict of interests other administrative bodies.
Conflict of Interests
Disqualifications (4) To be interested financially, directly
Section 13. No Senator or Member or indirectly, in any contract with, or in
of the House of Representatives may any franchise or special privilege
hold any other office or employment granted by the Government, or any
in the government, or any subdivision, agency or instrumentality
subdivision, agency, or thereof, including any government-owned
instrumentality thereof, including or controlled corporation, or its subsidiary,
government-owned or controlled during his term of office.
corporation or their subsidiaries, (5) To intervene in any matter before
during his term without forfeiting his any office of the Government for his
seat. Neither shall he be appointed to pecuniary benefit or intervene in any
any office which may have been matter before any office of the
created or the emoluments thereof Government where he may be called
increased during the term for which upon to act on account of his office.
he was elected. (6) See Section 10

2. Disqualifications
Section 14. No Senator or Member
of the House of Representatives may Incompatible Office
personally appear as counsel before Purpose. The purpose of prohibition of
any court of justice or before the incompatible offices is to prevent him from owing
Electoral Tribunals, or quasi-judicial loyalty to another branch of the government, to the
and other administrative bodies. detriment of the independence of the legislature
Neither shall he, directly or indirectly, and the doctrine of separation of powers.
be interested financially in any 2 Kinds of Office under Article 13
contract with, or in any franchise or 1) Incompatible office (1st sentence of article 13)
special privilege granted by the 2) Forbidden office (2nd sentence of article 13)
Government, or any subdivision,
agency or instrumentality thereof, Prohibition not absolute. The prohibition against
including any government-owned or the holding of an incompatible office is not
controlled corporation, or its absolute; what is not allowed is the simultaneous
subsidiary, during his term of office. holding of that office and the seat in Congress.166
He shall not intervene in any matter Hence, a member of Congress may resign in order
before any office of the Government to accept an appointment in the government before
for his pecuniary benefit or where he the expiration of his term.167
may be called upon to act on account
of his office. When office not incompatible. Not every other
office or employment is to be regarded as
1. Prohibitions: incompatible with the legislative position. For,
Disqualifications 166
Cruz, Philippine Political Law.
167
Bernas Primer, p.246 (2006).

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example, membership in the Electroral Tribunals is Pleadings. A congressman cannot sign pleadings
permitted by the Constitution itself. Moreover, if it [as counsel for a client] (Villegas case)
can be shown that the second office is an
extension of the legislative position or is in aid of 4. Conflict of Interests
legislative duties, the holding thereof will not result
in the loss of the legislator’s seat in the Financial Interest
Congress.168 Purpose. This is because of the influence they can
easily exercise in obtaining these concessions. The
Forbidden Office. idea is to prevent abuses from being committed by
Purpose. The purpose is to prevent trafficking in the members of Congress to the prejudice of the
public office.169 The reasons for excluding persons public welfare and particularly of legitimate
from office who have been concerned in creating contractors with the government who otherwise
them or increasing the emoluments are to take might be placed at a disadvantageous position vis-
away as far as possible, any improper bias in the à-vis the legislator.
vote of the representative and to secure to the
constituents some solemn pledge of his Contract. The contracts referred to here are those
disinterestedness.170 involving “financial interest,” that is, contracts from
which the legislator expects to derive some profit at
Scope of prohibition. The provision does not the expense of the government.175
apply to elective offices, which are filled by the
voters themselves. Pecuniary Benefit. The prohibited pecuniary
benefit could be direct or indirect and this would
The appointment of the member of the Congress to cover pecuniary benefit for relatives. (Bernas
the forbidden office is not allowed only during the Commentary, p. 710, 10th ed.)
term for which he was elected, when such office
was created or its emoluments were increased. VI. INTERNAL GOVERNMENT OF CONGRESS
After such term, and even if the legislator is re-
elected, the disqualification no longer applies and
he may therefore be appointed to the office.171 Sessions
Adjournment
3. Prohibition on lawyer legislators. Officers
Quorum
Purpose. The purpose is to prevent the legislator Internal Rules
from exerting undue influence, deliberately or not,
Disciplinary Powers
upon the body where he is appearing.172
Legislative Journal and Congressional Record
Not a genuine party to a case. A congressman Enrolled Bill Doctrine
may not buy a nominal account of shares in a
corporation which is party to a suit before the SEC A. Sessions
and then appear in “intervention”. That which the 1. Regular
Constitution directly prohibits may not be done by 2. Special
indirection. (Puyat v. De Guzman) 3. Joint Sessions

Prohibition is personal. It does not apply to law Section 15. The Congress shall
firm where a lawyer-Congressman may be a convene once every year on the
member.173 The lawyer-legislator may still engage fourth Monday of July for its regular
in the practice of his profession except that when it session, unless a different date is
come to trials and hearings before the bodies fixed by law, and shall continue to be
above-mentioned, appearance may be made not in session for such number of days as
by him but by some member of his law office.174 it may determine until thirty days
before the opening of its next regular
session, exclusive of Saturdays,
Sundays, and legal holidays. The
168
Cruz, Philippine Political Law. President may call a special session
169
Cruz, Philippine Political Law. at any time.
170
Mr. Justice Story quoted in Sinco, Philippine Political Law, p.
163 (1954). Regular session
171
Cruz, Philippine Political Law. 175
172 Cruz, Philippine Political Law. Legislators cannot be members of
Cruz, Philippine Political Law.
173 the board of corporations with contract with the government. Such
Bernas Primer, p.247 (2006). would be at least indirect financial interest. (Bernas Commentary, p.
174
Cruz. Philippine Political Law. 710, 10th ed.)

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Congress shall convene once every year for its placing the Philippines under martial law. (art 7
regular session. §18)

Congress shall convene on the 4th Monday of July Instances when Congress votes other than
(unless a different date is fixed by law) until 30 majority.
days (exclusive of Saturdays, Sundays and legal a. To suspend or expel a member in
holidays) before the opening of the next regular accordance with its rules and proceedings: 2/3
session. of all its members (Sec. 16, Art. VI).
b. Yeas and nays entered in the Journal: 1/5
Special session of the members present (Sec. 16(4), Art. VI)
A special session is one called by the President c. Declare the existence of a state of war:
while the legislature is in recess. 2/3 of both houses in joint session voting
separately (Sec. 23, Art. VI)
Mandatory recess. A mandatory recess is d. Re-passing of a bill after Presidential veto:
prescribed for the thirty-day period before the 2/3 of the Members of the House where it
opening of the next regular session, excluding originated followed by 2/3 of the Members of
Saturdays, Sundays and legal holidays. This is the the other House.
minimum period of recess and may be lengthened e. Determining President’s disability after
by the Congress in its discretion. It may however, submissions by both the Cabinet and the
be called in special session at any time by the President: 2/3 of both Houses voting
President. separately (Sec. 11, Art. VII)

The President’s call is not necessary in some B. Adjournment


instances:
1. When the Congress meets to Section 16
canvass the presidential elections (5) Neither House during the session
2. To call a special election when both of the Congress shall, without the
the Presidency and Vice-Presidency are consent of the other, adjourn for more
vacated than three days, nor to any other
3. When it decides to exercise the place than that in which the two
power of impeachment where the respondent Houses shall be sitting.
is the President himself.176
Either House may adjourn even without the
Q: May the President limit the subjects which consent of the other provided that it will not be
may be considered during a special election more than three days.
called by him?
A: No. The President is given the power to If one House should adjourn for more than three
call a session and to specify subjects he days, it will need the consent of the other.
wants considered, but it does not empower
him to prohibit consideration of other Neither house can adjourn to any other place than
subjects. After all, Congress, if it so wishers, that in which the two Houses shall be sitting without
may stay in regular session almost all year the consent of the other.
round.177
Reason. These rules prevent each house from
Joint Sessions holding up the work of legislation.178 This
a. Voting Separately coordinative rule is necessary because the two
i) Choosing the President (art. 7 §4) houses form only one legislative body.179
ii) Determine President’s disability (art. 7 §11)
iii) Confirming nomination of the Vice-President C. Officers
(art. 7 §9)
iv) Declaring the existence of a state of war (art. Section 16. (1) The Senate shall
6 §23) elect its President and the House of
v) Proposing constitutional amendments (art. 12 Representatives its Speaker, by a
§1) majority vote of all its respective
b. Voting Jointly Members.
To revoke or extend proclamation suspending Each House shall choose such other
the privilege of the writ of habeas corps or officers as it may deem necessary.

176 178
Cruz, Philippine Political Law, Sinco, Philippine Political Law, p 170 (1954).
177 179
Bernas Commentary, p.711, (2003 ed.) Bernas Commentary, p.723, (2003 ed.)

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Officers of the Congress:


(1) Senate President E. Internal Rules
(2) House Speaker Power to determine rules
(3) Such other officers as each House may deem Nature of the rules
necessary. Role of courts

It is well within the power and jurisdiction of the Section 18


Court to inquire whether the Senate or its officials (3) Each House may determine the
committed a violation of the Constitution or gravely rules of its proceedings, punish its
abused their discretion in the exercise of their Members for disorderly behavior, and
functions and prerogatives. (Santiago v. Guingona) with the concurrence of two-thirds of
all its Members, suspend or expel a
The method of choosing who will be the other Member. A penalty of suspension,
officers must be prescribed by Senate itself. In the when imposed, shall not exceed sixty
absence of constitutional and statutory guidelines days.
or specific rules, this Court is devoid of any basis
upon which to determine the legality of the acts of 1. Power to determine internal rules. Each
the Senate relative thereto. On grounds of respect House may determine the rules of its proceedings.
for the basic concept of separation of powers,
courts may not intervene in the internal affairs of 2. Nature of the Rules. The rules adopted by
the legislature; it is not within the province of courts deliberative bodies (such as the House) are subject
to direct Congress how to do its work. (Santiago v. to revocation, modification, or waiver by the body
Guingona) adopting them. (Arroyo v. De Venecia)
D. Quorum The power to make rules is not one, once
exercised is exhausted. It is a continuous power,
Section 16 always subject to be exercised by the House, and
(2) A majority of each House shall within the limitations suggested and absolutely
constitute a quorum to do business, beyond the challenge of any other body. (Arroyo v.
but a smaller number may adjourn De Venecia)
from day to day and may compel the
attendance of absent Members in 3. Role of Courts. The Court may not intervene in
such manner and under such the implementation of the rules of either House
penalties, as such House may except if the rule affects private rights. On matters
provide. affecting only internal operation of the legislature,
the legislature’s formulation and implementation of
Quorum to do business. A majority of each its rules is beyond the reach of the courts. When,
House shall constitute a quorum to do business. however, the legislative rule affects private rights,
the courts cannot altogether be excluded. (US v.
Quorum is based on the proportion between those Smith)
physically present and the total membership of
the body.
F. Disciplinary powers (suspension/expulsion)
A smaller number may adjourn from day to day.
Basis for punishment. Each House may punish
A smaller number may compel the attendance of its Members for disorderly behavior.
absent members in such manner and under such
penalties as the House may provide. Preventive Suspension v. Punitive Suspension.
A congressman may be suspended as a preventive
The members of the Congress cannot compel measure by the Sandiganbayan. The order of
absent members to attend sessions if the reason of suspension prescribed by the Anti-Graft and
absence is a legitimate one. The confinement of a Corrupt Practices Act is distinct from the power of
Congressman charged with a non-bailable offense congress to police its own ranks under the
(more than 6 years) is certainly authorized by law Constitution. The suspension contemplated in the
and has constitutional foundations. (People v. constitutional provisions is a punitive measure that
Jalosjos) is imposed upon determination by a House upon
an erring member. The suspension spoken in
The question of quorum cannot be raised AGCPA is not a penalty but a preventive measure.
repeatedly, especially when a quorum is obviously The doctrine of separation of powers by itself may
present, for the purpose of delaying the business of not be deemed to have excluded members of
the House. (Arroyo v. De Venecia, June 26, 1998) Congress from AGCPA. The law did not exclude

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from its coverage the members of the Congress (2) To provide proof of what actually transpired in
and therefore the Sandiganbayan may decree a the legislature. (Field v. Clark)
preventive suspension order. (Santiago v.
Sandiganbayan) (2002 Bar Question) 4. What may be excluded. The Constitution
exempts from publication parts which in the
2/3 Requirement. Each House may with the judgment of the House affect national security.
concurrence of two-thirds of all its Members,
suspend or expel a Member. 5. Matters which, under the Constitution, are to
be entered in the journal:
Period of suspension. A penalty of suspension, 1. Yeas and nays on
when imposed, shall not exceed sixty days. third and final reading of a bill.
2. Veto message of the
Not subject to judicial review. Disciplinary action President
taken by Congress against a member is not subject 3. Yeas and nays on the
to judicial review because each House is the sole repassing of a bill vetoed by the President
judge of what disorderly behavior is. (Osmena v. 4. Yeas and nays on
Pendatun) any question at the request of 1/5 of members
present

G. Legislative Journal and Congressional Record 6. Journal vs. Extraneous evidence. The Journal
Requirement is conclusive upon the Courts (US v. Pons)
Journal
Purpose of Journal 7. What is a Record? The Record contains a word
What may be excluded for word transcript of the deliberation of
Matters to be entered to the journal Congress.182
Journal v. Extraneous Evidence
Record H. Enrolled bill doctrine
Enrolled Bill
Section 18 Enrolled Bill Doctrine
(4) Each House shall keep a Journal Underlying Principle
of its proceedings, and from time to Enrolled Bill v. Journal Entry
time publish the same, excepting Enrolled bill v. matters required to be entered in the
such parts as may, in its judgment, journals
affect national security; and the yeas Remedy for Mistakes
and nays on any question shall, at the
request of one-fifth of the Members 1. Enrolled Bill. One which has been duly
present, be entered in the Journal. introduced, finally passed by both houses, signed
Each House shall also keep a Record by the proper officers of each, approved by the
of its Proceedings. [president]. (Black Law Dictionary)

1. Requirement. Each House shall keep a Journal 2. Enrolled bill doctrine: The signing of a bill by
of its proceedings, and from time to time publish the Speaker of the House and the Senate
the same. President and the certification by the secretaries of
both Houses of Congress that such bill was passed
2. What is a journal? The journal is usually an are conclusive of its due enactment. (Arroyo v. De
abbreviated account of the daily proceedings.180 A Venecia)
legislative journal is defined as “the official record
of what is ‘done and past’ in a legislative [body]. It Where the conference committee report was
is so called because the proceedings are entered approved by the Senate and the HR and the bill is
therein, in chronological order as they occur from enrolled, the SC may not inquire beyond the
day to day.181 certification and approval of the bill, and the
enrolled bill is conclusive upon the judiciary (Phil.
3. Purpose of the requirement that a journal be Judges Association v. Prado)
kept:
(1) To insure publicity to the proceedings of the 3. Underlying Principle of the Doctrine. Court is
legislature, and a correspondent responsibility bound under the doctrine of separation of
of the members of their respective powers by the contents of a duly authenticated
constituents; and measure of the legislature. (Mabanag v. Lopez
Vito, Arroyo v. De Venecia)
180
Bernas Commentary, p.723, (2003 ed.)
181 182
Sinco, Philippine Political Law 191, (1954). Bernas Commentary, p.723, (2003 ed.)

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4. Enrolled bill vs. Journal Entry: The enrolled the Chief Justice, and the remaining
bill is the official copy of approved legislation and six shall be members of the Senate or
bears the certification of the presiding officers of the House of Representatives, as the
the legislative body. The respect due to a co-equal case may be, who shall be chosen on
department requires the courts to accept the the basis of proportional
certification of the presiding officer as conclusive representation from the political
assurance that the bill so certified is authentic. parties and the parties or
(Casco Philippine Chemical Co. v. Gimenez) organizations registered under the
However, If the presiding officer should repudiate party-list system represented therein.
his signature in the “enrolled bill”, the enrolled will The senior justice in the Electoral
not prevail over the Journal. This is because the tribunal shall be its Chairman.
enrolled bill theory is based mainly on the respect
due to a co-equal department. When such co-equal 1. Two Electoral Tribunals. The Senate and the
department itself repudiates the enrolled bill, then House of Representatives shall each have an
the journal must be accepted as conclusive. Electoral Tribunal
5. Enrolled bill v. Matters required to be entered 2. Composition of ET
in the journals. The Supreme Court has explicitly Each electoral tribunal shall be composed of 9
left this matter an open question in Morales v. members. 3 from the SC (to be designated by the
Subido.183 CJ) and 6 from the respective House.
6. Remedy for Mistakes. If a mistake was made in 3. Why create an electoral tribunal independent
printing of the bill before it was certified by from Congress. It is believed that this system
Congress and approved by the President, the tends to secure decisions rendered with a greater
remedy is amendment or corrective legislation, not degree of impartiality and fairness to all parties. It
judicial decree. (Casco (Phil) Chemical Co. also enables Congress to devote its full time to the
Gimenez) performance of its proper function, which is
legislation, rather than spend part of its time acting
VII. Electoral Tribunals, CA as judge of election contests.184

Proportional Representation. The congressmen


Electoral Tribunal
who will compose the electoral tribunal shall be
CA
chosen on the basis of proportional representation
Constitution of ET and CA
from the political and party-list parties.
A. Electoral Tribunal
Reason for Mixed Membership. The presence of
Electoral Tribunals justices of the Supreme Court in the Electoral
Composition Tribunal neutralizes the effects of partisan
Rationale influences in its deliberations and invests its action
Independence with that measure of judicial temper which is
Security of Tenure greatly responsible for the respect and confidence
Power people have in courts.185
Jurisdiction of ET
Jurisdiction of COMELEC Chairman. The senior Justice in the electoral
Judicial Review tribunal shall be its Chairman.

Section 17. The Senate and the SET cannot legally function absent its entire
House of Representatives shall each membership of senators, and no amendment of its
have an Electoral Tribunal which shall rules can confer on the 3 remaining justice-
be the sole judge of all contests members alone, the power of valid adjudication of
relating to the election, returns, and senatorial election contest. (Abbas v. SET)
qualifications of their respective
Members. Each electoral tribunal 4. Independence. The Congress may not regulate
shall be composed of nine members, the actions of the electoral tribunals even in
three of whom shall be Justices of the procedural matters. The tribunal is an independent
Supreme Court to be designated by constitutional body. (Angara v. Electoral
Commission)
183
Bernas Primer, p. 251 (2006 ed.); Cruz in his book says: “But
except only where the matters are required to be entered in the
journals, the contents of the enrolled bill shall prevail over those of 184
the journal in case of conflict. (Page 129 Philippine Political Law Sinco, Philippine Political Law, p.158 (1954).
185
(1995 ed). Sinco, Philippine Political Law, p.158 (1954).

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5. Security of Tenure. Members of ET have but the case must be decided after thorough
security of tenure. Disloyalty to the party is not a investigation of the evidence.187
ground for termination. (Bondoc v. Pineda) (2002
Bar Question) Absence of election contest. In the absence of
an election contest, however, the electoral tribunals
6. Power. The Electoral Tribunal shall be the sole are without jurisdiction. Thus, the power of each
judge of all contests relating to the election, House to defer oath-taking of members until final
returns, and qualifications of their respective determination of election contests filed against
members. them has been retained by each House. (Angara v.
The tribunal has the power to promulgate rules Electoral Commission)
relating to matters within its jurisdiction, including
period for filing election protests. (Lazatin v. HET) Invalidity of Proclamation. An allegation of
Electoral Tribunal has incidental power to invalidity of a proclamation is a matter that is
promulgate its rules and regulations for the proper addressed to the sound discretion of the Electoral
exercise of its function (Angara v. Electoral Tribunal. (Lazatin v. COMELEC)
Commission)
Motion to Withdraw. The motion to withdraw does
7. Jurisdiction of Electoral Tribunal not divest the HRET the jurisdiction on the case.
The Electoral Tribunal shall be the sole judge of all (Robles v. HRET)
contests relating to the election, returns, and
qualifications of their respective members. 8. Jurisdiction of COMELEC
Pre-proclamation controversies include:
The jurisdiction of HRET is not limited to (1) Incomplete returns (omission of name or
constitutional qualifications. The word votes)
“qualifications” cannot be read to be qualified by (2) Returns with material defects
the term “constitutional”. Where the law does not (3) Returns which appeared to be tampered with,
distinguish, the courts should likewise not. The falsified or prepared under duress or
filing of a certificate of candidacy is a statutory containing discrepancies in the votes (with
qualification.(Guerrero v. COMELEC) significant effect on the result of election)
Where a person is contesting the proclamation of a “Where a petitioner has seasonably filed a motion
candidate as senator, it is SET which has exclusive for reconsideration of the order of the Second
jurisdiction to act. (Rasul v. COMELEC) Division suspending his proclamation and
disqualifying him, the COMELEC was not divested
Contest after proclamation is the jurisdiction of of its jurisdiction to review the validity of the order
HRET (Lazatin v. COMELEC) of the Second Division. The order of the Second
division is unenforceable as it had not attained
When there is an election contest (when a finality. It cannot be used as the basis for the
defeated candidate challenge the qualification and assumption to office of respondent. The issue of
claims the seat of a proclaimed winner), the the validity of the order of second division is still
Electoral Tribunal is the sole judge. within the exclusive jurisdiction of the COMELEC
en banc. (Codilla v. De Venecia)
Errors that may be verified only by the opening of
ballot boxes must be recoursed to the electoral It is the COMELEC which decides who the winner
tribunal. is in an election. A person holding office in the
House must yield his or her seat to the person
Once a winning candidate has been proclaimed, declared by the COMELEC to be the winner and
taken his oath and assumed office as a member of the Speaker is duty bound to administer the oath188.
the House, COMELEC’s jurisdiction over election The Speaker shall administer the oath on the
contest relating to his election, returns and winner.
qualifications ends, and the HRET’s own
jurisdiction begins. (Aggabao v. COMELEC) In election contests, however, the jurisdiction of the
COMELEC ends once a candidate has been
Nature of election contests. An election is not like proclaimed and has taken his oath of office as a
an ordinary action in court. Public interests rather Member of Congress. Jurisdiction then passes to
than purely private ones are involved in its the Electoral Tribunal of either the House or the
determination.186 It is therefore not permissible that Senate.189
such a contest be settled by stipulation between
the parties, nor can judgment be taken by default;
187
Reinsch,, American Legislature, p 216.
186 188
Sinco, Philippine Political Law, p.161 (1954). Codilla v. de Venecia, G.R. No. 150605. December 10, 2002.

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9. Judicial Review effectivity of the appointment of certain key


SC may intervene in the creation of the electoral officials, the consent of CA is needed.
tribunal. SC may overturn the decisions of HRET
when there is GADLJ. (Lerias v. HRET) 2. Composition (25 members)
(1) Senate President as chairman
Judicial review of decisions or final resolutions of (2) 12 senators
the electoral tribunals is possible only in the (3) 12 members of HR
exercise of the Court’s so called extra-ordinary
jurisdiction upon a determination that the tribunal’s 3. Proportional Representation. The members of
decision or resolution was rendered without or in the Commission shall be elected by each House on
excess of jurisdiction or with grave abuse of the basis of proportional representation from the
discretion constituting denial of due process. political party and party list.
(Robles v. HET)
The sense of the Constitution is that the
Q: Are the decisions rendered by the membership in the Commission on Appointment
Electoral Tribunals in the contests of which must always reflect political alignments in
they are the sole judge appealable to the Congress and must therefore adjust to changes. It
Supreme Court? is understood that such changes in party affiliation
A: No. The decisions rendered by the must be permanent and not merely temporary
Electoral Tribunals in the contests of which alliances (Daza v. Singson)
they are the sole judge are not appealable to
the Supreme Court except in cases of a Endorsement is not sufficient to get a seat in COA.
clear showing of a grave abuse of (Coseteng v. Mitra)
discretion.
4. Fractional Seats. Fractional seats cannot be
B. Commission on Appointments rounded off. The seats should be vacant.
Function of CA (Coseteng v. Mitra) A full complement of 12
Composition members from the Senate is not mandatory
Proportional Representation (Guingona v. Gonzales) Holders of .5 proportion
Fractional Seats belonging to distinct parties may not form a unity
Voting for purposes of obtaining a seat in the Commission.
Action on Appointments (Guingona v. Gonzales)
Ad Interim Appointments not acted upon
Ruling 5. Voting. The Chairman shall not vote except in
the case of a tie.
Section 18. There shall be a
6. Action on appointments. The Commission
Commission on Appointments
shall act on all appointments submitted to it within
consisting of the President of the
30 session days of the Congress from the
Senate, as ex-officio Chairman,
submission.
twelve Senators and twelve Members
of the House of Representatives,
7. Ad interim appointments not acted upon. Ad
elected by each House on the basis
interim appointments not acted upon at the time of
of proportional representation from
the adjournment of the Congress, even if the thirty-
the political parties and parties or
day period has not yet expired, are deemed by-
organizations registered under the
passed under Article VII, Section 16.
party-list system represented therein.
The Chairman of the Commission
8. Ruling. The Commission shall rule by a majority
shall not vote, except in the case of a
vote of all its Members.
tie. The Commission shall act on all
appointments submitted to it within
C. Constitution of ET and CA
thirty session days of the Congress
from the submission. The Organization
Commission shall rule by a majority Reason for early organization of ETs
vote of all its Members. Reason of provision on CA
CA Meeting
1. Function of CA. It acts as a legislative check on
the appointing authority of the President. For the Section 19. The Electoral Tribunals
and the Commission on
Appointments shall be constituted
189
within thirty days after the Senate and
Aggabao v. Comelec, G.R. No. 163756. January 26, 2005; the House of Representatives shall
Vinzons-Chato v. Comelec, GR 172131, April 2, 2007.

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have been organized with the election Section 20. The records and books
of the President and the Speaker. of accounts of the Congress shall be
The Commission on Appointments preserved and be open to the public
shall meet only while the Congress is in accordance with law, and such
in session, at the call of its Chairman books shall be audited by the
or a majority of all its members, to Commission on Audit which shall
discharge such powers and functions publish annually an itemized list of
as are herein conferred upon it. amounts paid to and expenses
incurred for by each Member.
1. Organization. The ET and COA shall be
constituted within 30 days after the Senate and the Records and books of accounts
House shall have been organized with the election The records and books of accounts of the
of the President and the Speaker. Congress shall be preserved and be open to the
public in accordance with law.
2. Reason for Early organization of ETs. In the
case of Electoral Tribunals, the need for their early The records and books of accounts of the
organization is obvious, considering the rash of Congress shall be audited by the Commission on
election contests already waiting to be filed after, Audit.
even before, the proclamation of the winners. This
is also the reason why, unlike the Commission of The Commission on Audit shall publish annually an
Appointments, the Electoral Tribunals are itemized list of amounts paid to and expenses
supposed to continue functioning even during the incurred for by each Member.
recess.190
IX. LEGISLATIVE HEARINGS
3. Reason, provision on COA. The provision is (INQUIRIES AND OVERSIGHT FUNCTIONS)
based on the need to enable the President to
exercise his appointing power with dispatch in
coordination with the Commission on A. Inquiries in Aid of Legislation
Appointments. B. Oversight Functions
The rule that the Commission on Appointments can
meet only during the session of the Congress is the There are two provisions on legislative hearing,
reason why ad interim appointments are permitted Sections 21 and 22. Section 21 is about legislative
under the Constitution. These appointments are investigations in aid of legislation.
made during the recess, subject to consideration
later by the Commission, for confirmation or Section 21. Legislative Section 22. Oversight
rejection. Investigation Function
Who may appear
But where the Congress is in session, the Any person Department heads and
President must first clear his nominations with the others
Commission on Appointments, which is why it must Who may be summoned
be constituted as soon as possible. Unless it is Anyone except the Each house may only
organized, no appointment can be made by the President and SC request the appearance of
President in the meantime.191 members (Senate v. department heads.
Ermita)
4. COA meeting Subject Matter
The Commission on Appointments shall meet only Any mattes for purpose of Matters related to the
while the Congress is in session to discharge its legislation department only
powers and functions. Obligatory force of appearance
Mandatory Discretionary
The Commission on Appointments shall meet at
the call of its Chairman or a majority of all its A. Inquiries in Aid of Legislation
members
Who has the power
Nature
VIII. RECORDS AND BOOKS OF ACCOUNTS Limitation of Power
Reason for Limitation
Scope of Questions
Who may be summoned
Power to Punish
Rights of Persons
190
Cruz, Philippine Political Law. Courts and Committee
191
Cruz, Philippine Political Law.

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Power of Inquiry v. Executive Privilege was purely private in nature and therefore outside
Neri v. Senate Committee the scope of the powers of Congress.197

Section 21. The Senate or the House 5. Scope of questions


of Representatives or any of its It is not necessary that every question propounded
respective committees may conduct to a witness must be material to a proposed
inquiries in aid of legislation in legislation. (Arnault v. Nazareno) This is because
accordance with its duly published the legislative action is determined by the
rules of procedure. The rights of information gathered as a whole. (Arnault v.
persons appearing in or affected by Nazareno)
such inquiries shall be respected.
6. Who may be summoned under Section 21
Power of Inquiry Senate v. Ermita198 specified who may and who
may not be summoned to Section 21 hearings.
1. Who has the power Thus, under this rule, even a Department Head
The Senate or the House of Representatives or who is an alter ego of the President may be
any of its respective committees may conduct summoned. Thus, too, the Chairman and
inquiries in aid of legislation. members of the Presidential Commission on Good
Government (PCGG) are not except from
2. Nature summons in spite of the exemption given to them
The power of inquiry is an essential and by President Cory Aquino during her executive
appropriate auxiliary to the legislative action. rule.199 The Court ruled that anyone, except the
(Arnault v. Nazareno) It has been remarked that President and Justices of the Supreme Court
the power of legislative investigation may be may be summoned.
implied from the express power of legislation and
does not itself have to be expressly granted.192 7. Power to punish

3. Limitations193: Legislative Contempt. The power of investigation


necessarily includes the power to punish a
1. It must be in aid of legislation 194
contumacious witness for contempt. (Arnault v.
2. It must be in accordance with its duly Nazareno)
published rules of procedure195
3. The rights of persons appearing in or Acts punished as legislative contempt. The US
affected by such inquiries shall be respected. Supreme Court in the case of Marshall v. Gordon200
4. Power of Congress to commit a mentions:
witness for contempt terminates when the 1. Physical obstruction of the legislative body in
legislative body ceases to exist upon its final the discharge of its duties.
adjournment.196 2. Physical assault upon its members for action
(Note: 1-3 are explicit limitations while 4 is an taken or words spoken in the body;
implicit limitation.) 3. Obstruction of its officers in the performance of
their official duties
4. Reason for the limitations 4. Prevention of members from attending so that
The reason is in the past, this power was much their duties might be performed
abused by some legislators who used it for
illegitimate ends to browbeat or intimidate
5. Contumacy in refusing to obey orders to
produce documents or give testimony
witnesses usually for grandstanding purposes only.
which was a right to compel.201
There were also times when the subject of inquiry
Power to punish for contempt and local
192
Cruz, Philippine Political Law, p. 155 (1995 ed). legislative bodies. The power to punish may not
193
See Concurring Opinion of Justice Corona in Neri v. Senate be claimed by local legislative bodies (Negros
Committee; See also Bernas Commentary, p737 (2003 ed). Oriental Electric Cooperative v. Sangguniang
194
This requirement is an essential element for establishing Panglunsod)
jurisdiction of the legislative body.
195
Section 21 may be read as requiring that Congress must have
“duly published rules of procedure” for legislative investigations.
Violation of these rules would be an offense against due process. 197
Cruz, Philippine Political Law, p. 155 (1995 ed).
(Bernas Commentary p. 740 (2003 ed). 198
196
G.R. No. 169777, April 20, 2006.
This must be so inasmuch as the basis of the power to impose 199
Sabio v. Gordon, G.R. No. 174318, October 17, 2006.
such a penalty is the right which the Legislature has to self- 200
preservation, and which right is enforceable during the existence of 243 US 521.
201
the legislative body. (CJ Avancena in Lopez v De los Reyes) Sinco, Philippine Political Law, p 208 (1954ed).

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Power to punish is sui generis. The exercise of President or by the Executive Secretary.
the legislature of contempt power is a matter of (Senate v. Ermita; EO 464 case)
preservation and independent of the judicial
branch. Such power is sui generis. (Sabio v. 10. Power of Inquiry v. Executive Privilege
Gordon) Senate v. Ermita: “Congress has undoubtedly has
a right to information from the executive branch
Q: When may a witness in an investigation whenever it is sought in aid of legislation. If the
be punished for contempt? executive branch withholds such information on the
A: When a contumacious witness’ testimony ground that it is privileged, it must so assert it
is required in a matter into which the and state the reason therefore and why it must
legislature or any of its committees has be respected.” (Justice Carpio Morales in Senate
jurisdiction to. (In short, the investigation v. Ermita)
must be in aid of legislation.) (Arnault v.
Nazareno) Neri v. Senate: Was the claim of executive
privilege properly invoked in this case? Yes
Q: For how long may a private individual be according to the Justice Leonardo-De Castro’s
imprisoned by the legislature for contempt? ponencia. For the claim to be properly invoked,
A: For HR: Until final adjournment of the there must be a formal claim by the President
body. For Senate: Offender could be stating the “precise and certain reason” for
imprisoned indefinitely by the body provided preserving confidentiality. The grounds relied upon
that punishment did not become so long as by Executive Secretary Ermita are specific enough,
to violate due process. (Arnault v. Nazareno) since what is required is only that an allegation be
made “whether the information demanded involves
8. Rights of persons military or diplomatic secrets, closed-door Cabinet
PhilComStat has no reasonable expectation of meetings, etc.” The particular ground must only be
privacy over matters involving their offices in a specified, and the following statement of grounds
corporation where the government has interest. by Executive Secretary Ermita satisfies the
(Sabio v. Gordon) requirement: “The context in which executive
privilege is being invoked is that the information
9. Courts and the Committee sought to be disclosed might impair our diplomatic
A court cannot enjoin the appearance of a witness as well as economic relations with the People’s
in a legislative investigation. (Senate Blue Ribbon Republic of China.”202
Committee v. Judge Majaducon)
Bernas: The general rule of fairness, (which is what 11. Neri v. Senate Committee
due process is about) could justify exclusion of Background:
persons from appearance before the Committee. This case is about the Senate investigation of
anomalies concerning the NBN-ZTE project. During
the hearings, former NEDA head Romulo Neri
Q: Section 1 of EO 464 provides that “all
refused to answer certain questions involving his
heads of departments of the Executive conversations with President Arroyo on the ground
Branch shall secure the consent of the they are covered by executive privilege. When the
President prior to appearing before House Senate cited him in contempt and ordered his arrest,
of Congress.” Does this contravene the Neri filed a case against the Senate with the
power of inquiry vested in the Congress? Supreme Court. On March 25, 2008, the Supreme
Is Section 1 valid? Court ruled in favor of Neri and upheld the claim of
A: Valid. The SC read Section 1 of EO executive privilege.
Issues:
464 to mean that department heads need
(1) xxx
the consent of the president only in (2) Did the Senate Committees commit grave
question hour contemplated in Section abuse of discretion in citing Neri in contempt and
22 of Article VI. (The reading is dictated ordering his arrest?
by the basic rule of construction that Ruling:
issuances must be interpreted,as much as (1) xxx
possible, in a way that will render it (2) Yes. The Supreme Court said that the Senate
constitutional.) Committees committed grave abuse of discretion
in citing Neri in contempt. The following were the
reasons given by the Supreme Court:
Section 1 of EO 464 cannot be applied to a. There was a
appearances of department heads in legitimate claim of executive privilege.
inquiries in aid of legislation. Congress
is not bound in such instances to respect
b. Senate
Committees did not comply with the
the refusal of the department head in such requirement laid down in Senate v. Ermita
inquiry, unless a valid claim of privilege
is subsequently made, either by the 202
Primer on Neri v. Senate made by Atty. Carlos Medina.

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that the invitations should contain the Congress may refuse the initiative
“possible needed statute which prompted the
need for the inquiry” along with “usual
Section 22. The Heads of
indication of the subject of inquiry and the
questions relative to and in furtherance Departments may upon their own
thereof.” initiative, with the consent of the
c. A reading of the President, or upon the request of
transcript of the Committees’ proceeding either House as the rules of each
reveals that only a minority of the member of House shall provide, appear before
the Senate Blue Ribbon Committee was and be heard by such House on any
present during the deliberations Thus, there matter pertaining to their
is a cloud of doubt as to the validity of the
departments. Written questions shall
contempt order
be submitted to the President of
d. The Senate Senate or the Speaker of the House
Rules of Procedure in aid of legislation of Representatives at least three days
were not duly published in accordance to
before their scheduled appearance.
Section 21 of Article VI.
Interpellations shall not be limited to
e. The contempt written questions, but may cover
order is arbitrary and precipitate because the matters related thereto. When the
Senate did not first rule on the claim of
security of the State or the public
executive privilege and instead dismissed
Neri’s explanation as unsatisfactory. This is interest so requires and the President
despite the fact that Neri is not an unwilling so states in writing, the appearance
witness. shall be conducted in executive
Hence, the Senate order citing Neri in contempt and session.
ordering his arrest was not valid.
1. Purpose of Section 22
12. Power of Inquiry v. Commander in Chief The provision formalizes the “oversight function” of
power of the President Congress. Section 22 establishes the rule for the
exercise of what is called the “oversight function” of
Since the President is commander-in-chief of the Congress. Such function is intended to enable
Armed Forces she can demand obedience from Congress to determine how laws it has passed are
military officers. Military officers who disobey or being implemented.
ignore her command can be subjected to court
martial proceeding. Thus, for instance, the 2. Oversight function
President as Commander in Chief may prevent a “Broadly defined, congressional oversight
member of the armed forces from testifying before embraces all activities undertaken by Congress to
a legislative inquiry. A military officer who disobeys enhance its understanding of and influence over
the President’s directive may be made to answer the implementation of legislation it has enacted.”204
before a court martial. Since, however, Congress The acts done by Congress in the exercise of its
has the power to conduct legislative hearings, oversight powers may be divided into three
Congress may make use of remedies under the categories, to wit: scrutiny, investigation, and
law to compel attendance. Any military official supervision.205
whom Congress summons to testify before it may
be compelled to do so by the President. If the 3. Appearance of Heads of Departments by
President is not so inclined, the President may be their own initiative
commanded by judicial order to compel the
attendance of the military officer. Final judicial The Heads of Departments may upon their own
orders have the force of the law of the land which initiative, with the consent of the President
the President has the duty to faithfully execute.203 appear before and be heard by either House on
any matter pertaining to their departments.
B. Oversight Function
4. Why permission of the President needed
Purpose of Section 22
Oversight Function In deference to separation of powers, and because
Appearance of Heads of Department Department Heads are alter egos of the President,
Why Permission of President Needed they may not appear without the permission of the
Exemption from Summons President.206
Appearance at the Request of Congress
Written Questions
Scope of Interpellations 204
Macalintal v. Commission on Elections, 405 SCRA 614
Executive Session (2003), at 705.
205
Macalintal v. Commission on Elections, 405 SCRA 614 (2003),
203
Gudani v. Senga, G.R. No. 170165, April 15. 2006. at 3.

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5. Exemption from summons applies only to


Department Heads 10. Congress may refuse the initiative
It should be noted, that the exemption from Because of separation of powers, department
summons applies only to Department Heads and secretaries may not impose their appearance upon
not to everyone who has Cabinet rank. either House.207 Hence, the Congress may refuse
the initiative taken by the department secretary.208
Q: Does Section 22 provide for a
“question hour”? X. Emergency Powers
A:

Bernas Primer: No. the “question hour” is A. Declaration of the existence of a state of
proper to parliamentary system where there war
is no separation between the legislative and B. Delegation of emergency power
executive department. Section 22, unlike in
the “question hour” under the 1973 A. War power
Constitution, has made the appearance of 1. Power to declare existence of a state
department heads voluntary. of war
2. Rewording of the provision
But wait! The SC in Senate v. Ermita,
adopting the characterization of Section 23. (1) The Congress, by a
constitutional commissioner Hilario Davide, vote of two-thirds of both Houses in
calls Section 22 as the provision on joint session assembled, voting
“Question Hour”:“[Section 22] pertains to separately, shall have the sole power
the power to conduct a question hour, the to declare the existence of a state of
objective of which is to obtain information in war.
pursuit of Congress’ oversight function.”
1. Power to declare existence of a state of
Reconcile: Although the Court decision calls war209
this exercise a “question hour,” it does so The Congress, by a vote of 2/3 of both Houses in
only by analogy with its counterpart in joint session assembled, voting separately, shall
parliamentary practice. have the sole power to declare the existence of a
state of war.
6. Appearance at the request of Congress 2. Rewording of the provision
The Heads of Departments may upon their own From 1935 Constitution’s power to declare war210 to
initiative, with the consent of the President, or power to declare the existence of a state of war
upon the request of either House as the rules of under 1987.
each House shall provide, appear before and be Bernas: The difference between the two
heard by such House on any matter pertaining to phraseologies is not substantial but merely in
their departments. emphasis. The two phrase were interchangeable,
but the second phrase emphasizes more the fact
7. Written Questions that the Philippines, according to Article II, Section
Written questions shall be submitted to the Senate 2, renounces aggressive war as an instrument of
President or the House Speaker at least 3 days national policy.211
before their scheduled appearance.
Q: May a country engage in war in the
8. Scope of Interpellations absence of declaration of war?
Interpellations shall not be limited to written A: Yes. The actual power to make war is
questions, but may cover matters related thereto. lodged in the Executive. The executive when
necessary may make war even in the
9. Executive Session absence of a declaration of war.212
The appearance shall be conducted in executive
session when:
(1) The public interest so requires and 207
Bernas Primer at 263 (2006 ed.)
(2) The President so states in writing. 208
Bernas Commentary, p 744 (2003 ed).
209
206
War is defined as “armed hostilities between the two states. (II
This was explicitly mentioned in the deliberations of the 1935 RECORD 169)
Constitutional Convention where some Delegates had doubts about 210
Wording of the 1935 Constitution.
the propriety or constitutionality of Department Heads appearing in 211
Congress. Such deference is not found, by the Court’s interpretation, Bernas Commentary, p 745 (2003 ed).
212
in Section 21. Bernas Primer at 264 (2006 ed.)

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B. Delegation of emergency powers Doctrine of inappropriate provisions


1. Requisites for Delegation Executive Impoundment
2. Duration of delegation Legislative Veto
3. Powers that may be delegated
4. Withdrawal of powers A. Origination Clause
Exclusive Origination Clause
Section 23 Bills that must exclusively originate from HR
(2) In times of war or other national Origination from the House, Meaning
emergency, the Congress may by law Reason for exclusive origination
authorize the President, for a limited Senate may propose amendments
period and subject to such restrictions Scope of Senate’s power to introduce amendments
as it may prescribe, to exercise
powers necessary and proper to carry Section 24. All appropriation,
out a declared national policy. Unless revenue or tariff bills, bills authorizing
sooner withdrawn by resolution of the increase of the public debt, bills of
Congress, such power shall cease local application and private bills shall
upon the next adjournment thereof. originate exclusively in the House of
Representatives, but the Senate may
1. Requisites for the delegation: (1997 Bar Q) propose or concur with amendments.
(1) There must be a war213 or other national
1. Origin of money bills, private bills and bills of
emergency
local application
(2) Law authorizing the president for a limited
period and subject to such restrictions as All appropriation217, revenue218 or tariff bills219, bills
Congress may prescribe authorizing increase of the public debt220, bills of
(3) Power to be exercised must be necessary and local application221 and private bills222 shall originate
proper to carry out a declared national policy. exclusively in the House of Representatives, but
the Senate may propose or concur with
2. Duration of the delegation: amendments.
(1) Until withdrawn by resolution of Congress
2. Bills that must exclusively originate from the
(2) Until the next adjournment of Congress
HR:
3. Powers that may be delegated (1) Appropriation bills
(2) Revenue bills
Congress may authorize the President, to exercise
(3) Tariff bills
powers necessary and proper to carry out a
(4) Bills authorizing increase of the public debt
declared national policy Note that the nature of
(5) Bills of local application
delegable power is not specified. It is submitted
(6) Private bills
that the President may be given emergency
legislative powers if Congress so desires.214
3. Origination from the House
4. Withdrawal of powers The exclusivity of the prerogative of the House of
Representatives means simply that the House
Congress may do it by a mere resolution.215 And
such resolution does not need presidential 217
An appropriation bill is one whose purpose is to set aside a sum
approval.216 of money for public use. Only appropriation bills in the strict sense
of the word are comprehended by the provision; bills for other
XI. BILLS/ LEGISLATIVE PROCESS purposes which incidentally set aside money for that purpose are not
included. Bernas Commentary, p 748 (2003 ed).
218
A revenue bull is one that levies taxes and raises funds for the
Origination Clause government. Cruz, Philippine Political Law, p. 144 (1995 ed).
One bill-one subject rule 219
A tariff bill specifies the rates of duties to be imposed on
Passage of a bill imported articles. Cruz, Philippine Political Law, p. 144 (1995 ed).
Presidential Approval, Veto or Inaction; Legislative 220
A bill increasing public debt is illustrated by one floating bonds
Reconsideration for public subscription redeemable after a certain period. Cruz,
Item Veto Philippine Political Law, p. 144 (1995 ed).
221
Bills of local application are those which is limited to specific
213 localities, such for instance as the creation of a town. Bernas
War is defined as “armed hostilities between the two states. (II
Commentary, p 748 (2003 ed).
RECORD 169) 222
214 Private bills are those which affect private persons, such for
Bernas Primer at 265 (2006 ed.)
215 instance as a bill granting citizenship to a specific foreigner. Bernas
See concurring opinion of Justice Padilla in Rodriguez v. Gella, Commentary, p 748 (2003 ed). Private bills are illustrated by a bill
49 Off. Gaz. 465, 472. granting honorary citizenship to a distinguished foreigner. Cruz,
216
Bernas Primer at 265 (2006 ed.) Philippine Political Law, p. 155 (1995 ed).

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alone can initiate the passage of revenue bill, such (2) It is not necessary that the title be a
that, if the House does not initiate one, no revenue complete index of the content (PHILCONSA v.
law will be passed. (Tolentino v. Secretary of Gimenez)
Finance)
2. Purpose of the Rule:
4. Reason for exclusive origination (1) To prevent hodge-podge or log-rolling
The district representatives are closer to the pulse legislation
of the people than senators are and are therefore (2) To prevent surprise or fraud upon the
in a better position to determine both the extent of legislature
the legal burden they are capable of bearing and (3) To fairly appraise the people. (Central Capiz v.
the benefits that they need.223 It is more numerous Ramirez)
in membership and therefore also more
representative of the people.224 3. Liberal interpretation of the rule
The rule should be given a practical rather than a
5. Senate may propose amendments strict construction. It should be sufficient
The addition of the word “exclusively” in the compliance with such requirement if the title
Constitution is not intended to limit the power of the expresses the general subject and all the
Senate to propose amendments to revenue bills. provisions of the statute are germane to that
(Tolentino v. Sec. of Finance) general subject. (Sumulong v. COMELEC)

6. Scope of the Senate’s power to introduce 4. Germane


amendments A partial exemption from the increase of tax imposed is
Once the House has approved a revenue bill and not a deviation from the general subject of the law.
passed it on to the Senate, the Senate can (Insular Lumber Co. v. CTA)
completely overhaul it, by amendment of parts or
A tax may be germane and reasonably necessary for the
by amendment by substitution, and come out accomplishment of the general object of the decree for
with one completely different from what the regulation. (Tio v. VRB)
House approved. Textually, it is the “bill” which
must exclusively originate from the House; but the A repealing clause does not have to be expressly
“law” itself which is the product of the total included in the title of the law. (Phil. Judges Assoc. v.
bicameral legislative process originates not just Prado)
from the House but from both Senate and House.
The creation of a new legislative district is germane to
(Tolentino v. Secretary of Finance)
“the conversion of a municipality to an urbanized city.”
(Tobias v. Abalos)
(Discussion of Section 25 can be found after Section
29(3)) The reorganization of the remaining administrative
regions is germane to the general subject of “establishing
B. One bill-one subject rule the ARMM”. (Chiongbayan v. Orbos)
Mandatory Nature of the Rule
The expansion in the jurisdiction of the Sandiganbayan
Purpose of the Rule does not have to be expressly stated in the title of the law
Liberal Interpretation of the Rule (An Act Further Defining the Jurisdiction of the
Germane Sandiganbayan) because such is the necessary
Not Germane consequence of the amendment. (Lacson v. Executive
Secretary)
Section 26. (1) Every bill passed by
A provision that states that “no election officer shall hold
the Congress shall embrace only one
office for more than four years” is relevant to the title “An
subject shall be expressed in the title Act Providing for a General Registration of voters,
thereof. Adopting a System of Continuing Registration,
Prescribing Procedures Thereof and Authorizing the
1. Mandatory nature of the rule Appropriation of Funds Therefor” as it seeks to ensure the
Every bill passed by the Congress shall embrace integrity of the registration process by providing
guidelines for the COMELEC to follow in the
only one subject. The subject shall be expressed in reassignment of election officers. (De Guzman v.
the title of the bill. This rule is mandatory. COMELEC)

The requirement is satisfied when: The abolition of 2 municipalities is but a logical


(1) All parts of the law relate to the consequence of its merger to create a city.
subject expressed in the title
5. Not Germane
223
. Bernas Commentary, p 748 (2003 ed).
224
Cruz, Philippine Political Law, p. 145 (1995 ed).

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Prohibition of places of amusement should be included President or the Speaker to the proper
in the title of the law which only provides for the committee for study.
regulation of places of amusement. (De la Cruz v. Paras)
3. The bill may be killed in
C. Passage of a bill the committee or it may be recommended for
approval, with or without amendments,
Rules
sometimes after public hearings are first held
Procedure
thereon. (If there are other bills of the same
Reason for three readings
nature or purpose, they may all be
consolidated into one bill under common
Section 26 authorship or as a committee bill.)
(2) No bill passed by either House
shall become a law unless it has 4. Once reported out, the bill
passed three readings on separate shall be calendared for second reading. It is
days, and printed copies whereof in at this stage that the bill is read in its entirety,
its final form have been distributed to scrutinized, debated upon and amended when
its Members three days before its desired. The second reading is the most
passage, except when the President important stage in the passage of the bill.
certifies to the necessity of its 5. The bill as approved in
immediate enactment to meet a second reading is printed in its final form and
public calamity or emergency. Upon copies thereof are distributed at least three
the last reading of a bill, no days before the third reading. On third
amendment thereto shall be allowed, reading, the members merely register their
and the vote thereon shall be taken votes and explain them if they are allowed by
immediately thereafter, and the yeas the rules. No further debate is allowed.
and the nays entered in the Journal. 6. Once the bill passes third
reading, it is sent to the other chamber,
1. Rules where it will also undergo the three readings.
(1) No bill passed by either House shall become a 7. If also approved by the
law unless it has passed three readings on second House, it will then be submitted to the
separate days. President for his consideration.
(2) Printed copies of the bill in its final form should
be distributed to the Members 3 days before 8. The bill is enrolled when
its passage (except when the President printed as finally approved by the Congress,
certifies to the necessity of its immediate thereafter authenticated with the signatures of
enactment to meet a public calamity or the Senate President, the Speaker, and the
emergency). Secretaries of their respective chambers, and
(3) Upon the last reading of a bill, no amendment approved by the President.
thereto shall be allowed.
(4) The vote on the bill shall be taken immediately 3. Reason for three readings
after the last reading of a bill. To address the tendency of legislators, (on the last
(5) The yeas and the nays shall be entered in the day of the legislative year when legislators were
Journal. eager to go home), to rush bills through and insert
Exception. The certification of the President matters which would not otherwise stand scrutiny in
dispenses with the reading on separate days and leisurely debate.226
the printing of the bill in the final form before its
final approval. (Tolentino v. Secretary of Fincance) Q: If the version approved by the Senate
Operative. All decrees which are not inconsistent is different from that approved by the
with the Constitution remain operative until they are House of Representatives, how are the
amended or repealed. (Guingona v. Carague) differences reconciled?
A: In a bicameral system bills are
2. Procedure:225 independently processed by both Houses
of Congress. It is not unusual that the final
1. A bill is introduced by
version approved by one House differs
any member of the House of Representatives from what has been approved by the
or Senate except for some measures that must other. The “conference committee,”
originate only in the former chamber. consisting of members nominated from
2. The first reading involves both Houses, is an extra-constitutional
only a reading of the number and title of the creation of Congress whose function is to
measure and its referral by the Senate
226
See Bernas Commentary, p 760 (2003 ed).
225
Cruz, Philippine Political Law, p. 155 (1995 ed).

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propose to Congress ways of reconciling (3) He returns the passed bill with his objections to
conflicting provisions found in the Senate the House where it originated. (Veto Mesasge)
version and in the House version of a bill. General rule: If the president
disapproves the bill approved by
D. Presidential Approval, Veto or Inaction; Congress, he should veto the entire
Legislative Reconsideration bill. He is not allowed to veto
Three Methods separate items of a bill.
Presidential Approval Exceptions:
Presidential Veto (1) President may veto
Legislative Approval of the bill an item in cases of
Presidential Inaction appropriation, revenue and
tariff bills.
Section 27. (1)Every bill passed by (2) President may veto
the Congress shall, before it becomes inappropriate provisions or
a law, be presented to the President. riders.
If he approves the same, he shall
sign it; otherwise, he shall veto it and 4. Legislative reconsideration of the bill (1993
return the same with his objections to Bar Question)
the House where it originated, which (1) The House where the bill originated enters the
shall enter the objections at large in objections of the President at large in its Journal.
its Journal, and proceed to consider (2) Said House reconsiders the bill.
it. If, after such reconsideration, two- (3) 2/3 of all the Members of such House agree to
thirds of all the Members of such pass the bill.
House shall agree to pass the bill, it (4) The bill together with the objections is sent to
shall be sent, together with the the other House by which it is also reconsidered.
objections to the other House by (5) The other House approves the bill by 2/3 of all
which it shall likewise be the members of that House.
reconsidered, and if approved by two- (6) The bill becomes a law.
thirds of all the Members of that In all such cases, the votes of each House shall be
House, it shall become a law. In all determined by yeas or nays.
such cases, the votes of each House The names of the Members voting for or against
shall be determined by yeas or nays, shall be entered in its Journal.
and the names of the Members voting
for or against shall be entered in its Q: When does the Constitution require that
Journal. The President shall the yeas and nays of the Members be taken
communicate his veto of any bill to every time a House has to vote?
the House where it originated within A:
thirty days after the date of receipt 1. Upon the last and third readings of a bill
thereof; otherwise, it shall become a (art. 6 sec26(2))
law as if he had signed it. 2. At the request of 1/5 of the members
present (art 6 sec 16(4))
1. Three methods by which a bill may become a 3. In repassing a bill over the veto of the
law: (1988 Bar Question) President (art 6 sec 27(1))
1. When the President signs
5. Presidential Inaction
it;
2. When the President (1) Passed bill is presented to the President
vetoes it but the veto is overridden by two- (2) President does not approve nor communicate
thirds vote of all the members of each House; his veto to the House where the bill originated
3. When the President does within 30 days.
not act upon the measure within 30 days after (3) The bill becomes a law.
it shall have been presented to him.

2. Presidential approval
(1) Passed bill is presented to the President
(2) President signs the bill if he approves the same
(3) The bill becomes a law.

3. Presidential veto
(1) Passed bill is presented to the President
(2) President vetoes the bill if he does not approve
of it.

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E. Item veto must be incorporated in a separate bill. Being an


inappropriate provision, it was properly vetoed.
Section 27 (PHILCONSA v. Enriquez)
(2) The President shall have the
power to veto any particular item or The proviso on “power of augmentation from
items in an appropriation, revenue, or savings” can by no means be considered a specific
tariff bill, but the veto shall not affect appropriation of money. (Gonzales v. Macaraig)
the item or items to which he does
not object. 4. Appropriate Provisions
The special provision providing that “the maximum
Again, the General rule is: If the president amount of the appropriation for the DPWH to be
disapproves the bill approved by Congress, he contracted for the maintenance of national roads
should veto the entire bill. He is not allowed to veto and bridges should not exceed 30%” is germane to
separate items of a bill. the appropriation for road maintenance. It specifies
Exceptions: how the item shall be spent. It cannot be vetoed
separately from the item. (PHILCONSA v.
(1) President may veto an item in cases of Enriquez)
appropriation, revenue and tariff bills.
(2) President may veto inappropriate The special provision that all purchases of
provisions or riders. medicines by the AFP should comply with Generics
Act is a mere advertence to an existing law. It is
Item. An item is an indivisible [sum] of money directly related to the appropriation and cannot be
dedicated to a stated purpose.227 (Item = Purpose, vetoed separately from the item. (PHILCONSA v.
Amount) Enriquez)
In a tax measure, an item refers to the subject of
the tax and the tax rate. It does not refer to the G. Executive Impoundment:
entire section imposing a particular kind of tax.
(CIR v. CTA) Refusal of the President to spend funds already
allocated by Congress for a specific purpose. (See
The president may not veto the method or manner PHILCONSA v. Enriquez)
of using an appropriated amount. (Bengzon v.
Drillon) H. Legislative veto

F. Doctrine of inappropriate provisions A Congressional veto is a means whereby the


Doctrine legislature can block or modify administrative
Reason for the Doctrine action taken under a statute. It is a form of
Inappropriate Provisions legislative control in the implementation of
Appropriate Provisions particular executive actions.

1. Doctrine XII. FISCAL POWERS/ POWER OF THE PURSE


A provision that is constitutionally inappropriate for
an appropriation bill may be singled out for veto
even if it is not an appropriation or revenue “item”. Taxation
(Gonzales v. Macaraig) A. Nature
B. Limitations
2. Reason for the Doctrine C. Delegation of power to tax
The intent behind the doctrine is to prevent the D. Exempted from taxation
legislature from forcing the government to veto an Spending Power
entire appropriation law thereby paralyzing A. Spending Power
government. B. Appropriation
C. Non-establishment provision
3. Inappropriate Provisions D. Special Fund
E. Appropriation
Repeal of laws. Repeal of laws should not be
done in appropriation act but in a separate law
Power of the Purse. Congress is the guardian of
(PHILCONSA v. Enriquez) (use this doctrine
the public treasury. It wields the tremendous power
carefully)
of the purse. The power of the purse comprehends
both the power to generate money for the
The requirement of congressional approval for the
release of funds for the modernization of the AFP

227
Bernas Primer, p. 276 (2006 ed.)

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government by taxation and the power to spend martial rule product, which imposed a ten peso
it.228 capital contribution for the sale of each bag of
fertilizer “until adequate capital is raised to make
TAXATION PPI viable.” PPI was private corporation. Clearly,
therefore, the imposition was for private benefit and
Section 28. (1) The rule of taxation not for a public purpose.
shall be uniform and equitable. The
Congress shall evolve a progressive B. Limitations on Power of Taxation
system of taxation. 1. Rule of taxation shall be uniform and equitable.
Congress shall evolve a progressive system
A. Nature of taxation.
Definition 2. Charitable institutions, etc. and all lands, building
Scope and improvements actually, directly and
Purposes exclusively used for religious, charitable or
Tax educational purposes shall be exempt from
Public Purpose taxation. (art. 6 §28(3))
3. All revenues and assets of non-stock, non-profit
1. Definition educational institutions used actually, directly
and exclusively for educational purposes shall
Taxation refers to the inherent power of the state to
be exempt from taxes and duties. (art. 14
demand enforced contributions for public purposes.
§4(3))
4. Law granting tax exemption shall be passed only
2. Scope
with the concurrence of the majority of all the
Taxation is so pervasive that it reaches even the members of Congress. (art. 6 §29(4)
citizen abroad and his income earned from source
outside the State. UNIFORM
General Limit: For a public purpose; Due process
and equal protection clauses (Sison v. Ancheta) Uniformity. Uniformity signifies geographical
Specific Limit: Uniform and equitable (Section 28) uniformity. A tax is uniform when it operates with
(See 29(2)) the same force and effect in every place where the
Exercise of the power: Primarily vested in the subject is found.
national legislature.
Uniformity in taxation v. Equality in taxation.
3. Purposes: Uniformity in taxation means that persons or things
(1) To raise revenue belonging to the same class shall be taxed at the
(2) Instrument of national economic and social same rate. It is distinguished from equality in
policy taxation in that the latter requires the tax imposed
(3) Tool for regulation to be determined on the basis of the value of the
(4) The power to keep alive229 property.232

4. Tax Tan v. del Rosario:


Taxes are enforced proportional contributions from Uniformity means:
persons and property levied by the law making (1) the standards that are used therefor
body of the state by virtue of its sovereignty for the are substantial and not arbitrary;
support of the government and all public needs. (2) the categorization is germane to
Justice Holmes said: “Taxes are what we pay for achieve the legislative purpose;
civilized society.” (3) the law applies, all things being
equal, to both present and future conditions;
5. Public Purpose and
It is fundamental in democratic governments that (4) the classification applies equally well
taxes may be levied for public purpose only. to all those belonging to the same class.
Without this element, a tax violates the due
process clause and is invalid.230 In Planters There is a difference between the homeless people
Products, Inc. (PPI) v. Fertiphil Corp.231 the Court and the middle class. The two social classes are
had occasion to review the validity of LOI 1465, a differently situated in life. (Tolentino v. Sec. of
Finance)
228
Bernas Commentary, p 785 (2003 ed). EQUITABLE
229
Bernas Primer at 278 (2006 ed.)
230
Sinco, Philippine Political Law, p 579 (1954ed).
231 232
G.R. No. 166006, March 14, 2008. Cruz, Philippine Political Law, p. 168 (1995 ed).

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The present constitution adds that the rule of (3) The said power is to be exercised within
taxation shall also be equitable, which means that specified limits and subject to such limitations and
the tax burden must be imposed according to the restrictions as the Congress may impose.
taxpayer’s capacity to pay.233 (4) The authorization of such power must be within
the framework of the national development
Progressive system of taxation. The Congress program of the Government.
shall evolve a progressive system of taxation. Tax
system is progressive when the rate increases as 2. Tariff and Customs Code, Flexible Tariff
the tax base increases.234 Clause
The President is given by the Tariff and Customs
Reason for progressive system. The explicit Code ample powers to adjust tariff rates.
mention of progressive taxation in the Constitution
reflects the wish of the Commission that the Flexible Tariff Clause
legislature should use the power of taxation as an The President may fix tariff rates, import and export
instrument for a more equitable distribution of quotas, etc. under TCC:
wealth. 1) To increase, reduce or remove existing
protective rates of import duty (including any
Directive not a judicially enforceable right. The
necessary change in classification)
directive to evolve a progressive system of taxation
is addressed to Congress and not a judicially  the existing rates may be increased or
enforceable right. (Tolentino v. Sec. of Finance) decreased to any level on one or several
stages but in no case shall be higher than a
Indirect taxes. The Constitution does not prohibit maximum of 100% ad valorem
the imposition of indirect taxes, which are 2) To establish import quota or to ban imports of
regressive. The provision simply means that direct any commodity, as may be necessary
taxes are to be preferred and indirect taxes should 3) To impose an additional duty on all imports not
be minimized as much as possible. It does not exceeding 10% ad valorem whenever necessary
require Congress to avoid entirely indirect taxes.
Otherwise, sales taxes, which are the oldest form 3. Limitation Imposed Regarding the Flexible
of indirect taxes, will be prohibited. The mandate to Tariff Clause
Congress is not to prescribe but to evolve a 1) Conduct by the Tariff
progressive system of taxation. (Tolentino v. Sec. Commission of an investigation in a public
of Finance) hearing
 The Commissioner shall also hear the
C. Delegation of power to tax views and recommendations of any
Conditions government office, agency or
Tariffs and Customs Code instrumentality concerned
Limitation imposed regarding the Flexible Tariff Clause  The NEDA thereafter shall submits its
recommendation to the President
Section 28 2) The power of the President
(2) The Congress may by law, to increase or decrease the rates of import
authorize the President to fix within duty within the abovementioned limits fixed in
specified limits, and subject to such the Code shall include the modification in the
limitations and restrictions as it may form of duty.
impose, tariff rates, import and export  In such a case the corresponding ad
quotas, tonnage and wharfage dues, valorem or specific equivalents of the duty
and other duties or imposts within the with respect to the imports from the
framework of the national principal competing country for the most
development program of the recent representative period shall be used
Government. as bases. (Sec 401 TCC)

1. Conditions in the delegation of the power to D. Exempted from taxation


tax: Exempted from taxation
(1) Delegation must be made by law Kind of tax exemption
(2) The power granted is to fix tariff rates, import “Exclusively”, Meaning
and export quotas, tonnage and wharfage dues, Elements in determining a charitable institution
and other duties and impost. Reason for Requirement of Absolute Majority
233
Cruz, Philippine Political Law, p. 168 (1995 ed). Section 28
234
Bernas Commentary, p 779 (2003 ed). (3) Charitable institutions, churches
and parsonages or convents

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appurtenant thereto, mosques, non- power to tax and consequent loss of revenue to the
profit cemeteries and all lands, government.
buildings, and improvement actually,
directly, and exclusively used for POWER OF APPROPRIATION/ SPENDING POWER
religious, charitable, or educational
purposes shall be exempt from A. Spending Power
taxation. 1. Spending Power
2. Reason
1. Exempted: 3. “By Law”
(1) Charitable institutions
(2) Churches Section 29. (1) No money shall be
(3) Parsonages or convents appurtenant to paid out of the Treasury except in
churches pursuance of an appropriation made
(4) Mosques by law.
(5) Non-profit cemeteries
(6) All lands, buildings, and improvement actually, 1. Spending Power
directly and exclusively used for religious, The spending power of Congress is stated in
charitable, or educational purpose shall be exempt Section 29(1): “No money shall be paid out of the
from taxation. Treasury except in pursuance of an appropriation
made by law.” (1988, 1992 Bar Question)
2. Kind of tax exemption under 28(3)
The exemption created by Section 28 is only for 2. Reason
taxes assessed as property taxes and not excise Behind the provision stands the principle that the
tax. (CIR v. CA) people’s treasure that the people’s treasure may
be sent only with their consent. That consent is to
3. “Exclusively” be expressed either in the Constitution itself or in
The phrase “exclusively used for educational valid acts of the legislature as the direct
purposes” extends to facilities which are incidental representative of the people.235
to and reasonably necessary for the
accomplishment of the main purpose. (Abra Valley 3. “By law”
College v. Aquino) The provision does not say “appropriation by
Congress” but rather “by law”, a term which covers
PCGG has no power to grant tax exemptions both statutes and the Constitution.236
(Chavez v. PCGG)
B. Appropriation
4. Elements to be considered in determining Appropriation
whether an enterprise is a charitable Classification
institution/entity: CDF
(1) Statute creating the enterprise
(2) Its corporate purposes 1. Appropriation
(3) Its constitution and by-laws An appropriation measure may be defined as a
(4) Method of administration statute the primary and specific purpose of which is
(5) Nature of actual work performed to authorize the release of public funds from the
(6) Character of services rendered treasury.237 A law creating an office and providing
(7) Indefiniteness of the beneficiaries funds therefore is not an appropriation law since
(8) Use and occupation of the properties (Lung the main purpose is not to appropriate funds but to
Center v. QC) create the office.238

Section 28 2. Classification of Appropriation Measures:


(4) No law granting any tax
exemption shall be passed without
(4) General- The general appropriations
the concurrence of a majority of all law passed annually is intended to provide for
the Members of the Congress. the financial operations of the entire
government during one fiscal period.
5. Reason for absolute majority
Bills ordinarily passed with support of only a simple 235
majority, or a majority of those present and voting. See Sinco, Philippine Political Law, p 208 (1954ed).
236
The above provision requires an absolute majority Sinco, Philippine Political Law, p 211 (1954ed).
of the entire membership of the Congress because 237
Cruz, Philippine Political Law, p. 158 (1995 ed).
a tax exemption represents a withholding of the 238
Cruz, Philippine Political Law, p. 159 (1995 ed).

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(5) Special- designed for a specific 5. Prohibition against transfer of appropriations. (art
purpose such as the creation of a fund for the 6 sec 25(5))
relief of typhoon victims. 6. Rule on automatic reappropriation. (art 6 sec
25(7))
CDF 7. Prohibition against appropriations for sectarian
benefit. (art 6 sec 29(2))
A law creating CDF was upheld by the SC saying
that the Congress itself has specified the uses of
D. Non-establishment provision
the fund and that the power given to Congressmen
and Vice-President was merely recommendatory to
the President who could approve or disapprove the Section 29
recommendation. (PHILCONSA v. Enriquez) (2) No public money or property shall
be appropriated, applied, paid, or
C. Limitations on Appropriations employed, directly or indirectly, for
Extra-Constitutional Limitations the use, benefit, or support of any
Constitutional Limitations sect, church, denomination, sectarian
institution, or system of religion, or of
1. Implied Limitations any priest, preacher, minister, or
other religious teacher or dignitary as
such, except when such priest,
1. Appropriation must be devoted to a public
preacher, minister, or dignitary is
purpose
assigned to the armed forces, or to
2. The sum authorized must be determinate or at
any penal institution, or government
least determinable.239
orphanage or leprosarium.
2. Constitutional Limitations
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for
Specific Limitations on the power of
the use, benefit, or support of any sect, church,
appropriation240 [Sec 24, Sec 25(6)]
denomination, sectarian institution, or system of
1. Appropriation bills should originate in the House
religion, or of any priest, preacher, minister, or
of Representatives. (art. 6 sec 24)
other religious teacher or dignitary as such.
2. Discretionary funds appropriated for particular
officials shall be disbursed only for public
Public money may be paid to a priest, preacher,
purposes to be supported by appropriate
minister, or dignitary if he is assigned to the armed
vouchers and subject to such guidelines as
forces, or to any penal institution, or government
may be prescribed by law. (art. 6 sec 25(6)
orphanage or leprosarium.
Constitutional limitations on special
General or specific appropriation. Whether the
appropriation measures [Sec 25(4), Sec 29(2)]
appropriation be general or specific, it must
1. Must specify the public purpose for which the
conform to the prohibition against the use of public
sum is intended. (art 6 sec 25 (4))
funds or property for sectarian purposes.242
2. Must be supported by funds actually available as
certified to by National Treasurer, or to be
Purpose of the provision. This provision must be
raised by a corresponding revenue proposal
read with Article III, Section 5 on religious freedom
included therein. (art 6 sec 25(4))
and Article II, Section 6 on the separation of
3. Prohibition against appropriations for sectarian
Church and State. Its purpose is to further bolster
benefit. (art 6 sec 29(2))241
this principle and emphasize the neutrality of the
State in ecclesiastical matters.
Constitutional rules on general appropriations
law [Sec 25 (1)(2)(3)(5)(7), Sec 29(2)]
E. Special Fund
1. Congress may not increase the appropriations
recommended by the President. (art 6 sec
25(1)) Section 29
2. The form, content, and manner of preparation for (3) All money collected on any tax
the budget shall be prescribed by law. (art 6 levied for a special purpose shall be
sec 25(1)) treated as a special fund and paid out
3. Rule on riders. (art 6 sec 25(2)) for such purpose only. If the purpose
4. Procedure for approving appropriations for for which a special fund was created
Congress. (art 6 sec 25(3)) has been fulfilled or abandoned, the
balance, if any, shall be transferred to
239
Cruz, Philippine Political Law, p. 160 (1995 ed). the general funds of the Government.
240
Cruz, Philippine Political Law, p. 160 (1995 ed).
241 242
See Cruz, Philippine Political Law, p. 164 (1995 ed). Cruz, Philippine Political Law, p. 164 (1995 ed.)

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2. Rule on riders
Tax levied for a special purpose. All money
collected on any tax levied for a special purpose Section 25
shall be treated as a special fund. (2) No provision or enactment shall
be embraced in the general
For such purpose only. All money collected on appropriations bill unless it relates
any tax levied for a special purpose shall be paid specifically to some particular
out for such purpose only. appropriation therein. Any such
provision or enactment shall be
Balance to the general funds. If the purpose for limited in its operation to the
which a special fund was created has been fulfilled appropriation to which it relates.
or abandoned, the balance, if any, shall be (2001 Bar Question)
transferred to the general funds of the
Government. Every provision or enactment in the general
appropriations bill must relate specifically to some
F. General Appropriation particular appropriation therein.
Budget and Appropriation
Rule on Riders Every such provision or enactment shall be limited
Special Appropriations Bill in its operation to the appropriation to which it
No Transfer of Appropriations relates
Discretionary Funds
Automatic Re-enactment Purpose. To prevent riders or irrelevant provisions
that are included in the general appropriations bill
1. Budget and Appropriation to ensure their approval.246

Section 25. (1) The Congress may Procedure in approving appropriations for the
not increase the appropriations Congress
recommended by the President for (3) The procedure in approving
the operation of the Government as appropriations for the Congress shall
specified in the budget. The form, strictly follow the procedure for
content, and manner of preparation of approving appropriations for other
the budget shall be prescribed by law. departments and agencies.

Budget. The budget is only a proposal, a set of Same Procedure. The procedure in approving
recommendations on the appropriations to be appropriations for the Congress shall strictly follow
made for the operations of the government. It is the procedure for approving appropriations for
used as a basis for the enactment of the general other departments and agencies.
appropriations law.243
Reason. To prevent the adoption of appropriations
The budget as a restriction on appropriations. sub rosa by the Congress.
The Congress may not increase the appropriations
recommended by the President for the operation of 3. Special Appropriations bill
the Government as specified in the budget.
(4) A special appropriations bill shall
Reason. The reason for the above provision is the specify the purpose for which it is
theory that the President knows more about the intended, and shall be supported by
needed appropriations than the legislature.244 Being funds actually available as certified by
responsible for the proper administration of the the National Treasurer, or to be
executive department, the President is ordinarily raised by a corresponding revenue
the party best qualified to know the maximum proposal therein.
amount that the operation of his department
requires.245 A special appropriations bill shall:
(1) Specify the purpose for which it is intended;
Preparation of Budget. The form, content, and (2) Be supported by funds actually available as
manner of preparation of the budget shall be certified by the National Treasurer; or
prescribed by law. (3) Be supported by funds to be raised by a
corresponding revenue proposal therein.

243
Cruz, Philippine Political Law, p. 161 (1995 ed.) 4. No transfer of appropriations
244
Cruz, Philippine Political Law, p. 161 (1995 ed.)
245 246
Sinco, Philippine Political Law, p 216 (1954ed). Cruz, Philippine Political Law, p. 162 (1995 ed.)

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public purposes to be supported by appropriate


(5) No law shall be passed vouchers and subject to such guidelines as may be
authorizing any transfer of prescribed by law.
appropriations; however, the
President, the President of the Reason. This was thought necessary in view of the
Senate, the Speaker of the House of many abuses committed in the past in the use of
Representatives, the Chief Justice of discretionary funds. In many cases, these funds
the Supreme Court, and the heads of were spent for personal purposes, to the prejudice
Constitutional Commissions may, by and often even without the knowledge of the
law, be authorized to augment any public.249
item in the general appropriations law
for their respective offices from 6. Automatic Reenactment
savings in other items of their (1998 Bar Question)
respective appropriations. (7) If, by the end of any fiscal year,
(1998 Bar Question) the Congress shall have failed to
pass the general appropriations bill
Prohibition of transfer. No law shall be passed for the ensuing fiscal year, the
authorizing any transfer of appropriations. general appropriations law for
preceding fiscal year shall be deemed
Reason. This provision prohibits one department reenacted and shall remain in force
from transferring some of its funds to another and effect until the general
department and thereby make it beholden to the appropriations bill is passed by the
former to the detriment of the doctrine of separation Congress.
of powers. Such transfers are also unsystematic,
besides in effect disregarding the will of the Reason. This is to address a situation where
legislature that enacted the appropriation Congress fails to enact a new general
measure.247 appropriations act for the incoming fiscal year.

Augmentation of item from savings. The


President, the Senate President, the House XIII. OTHER PROHIBITED MEASURES
Speaker, the Chief Justice, and the heads of
Constitutional Commission may, by law, be
authorized to augment any item in the general Appellate Jurisdiction of Supreme Court
appropriations law for their respective offices from Title of Royalty and Nobility
savings in other items of their respective
appropriations. In this case, there is no danger to A. Appellate Jurisdiction of Supreme Court
the doctrine of separation of powers because the
transfer is made within a department and not from Section 30. No law shall be passed
one department to another.248 increasing the appellate jurisdiction of
the Supreme Court as provided in this
Exclusive list. The list of those who may be Constitution without its advice and
authorized to transfer funds under this provision is concurrence.
exclusive. However, members of the Congress
may determine the necessity of realignment of the Limitation on power of Congress. No law shall
savings. (PHILCONSA v. Enriquez) be passed increasing the appellate jurisdiction of
the Supreme Court as provided in this Constitution
5. Discretionary funds without its advice and concurrence.

(6) Discretionary funds appropriated SC’s Advice and Concurrence Needed. The
for particular officials shall be Congress may increase the appellate jurisdiction of
disbursed only for public purposes to the SC but only with its advice and concurrence.
be supported by appropriate
vouchers and subject to such Reason. To prevent further additions to the
guidelines as may be prescribed by present tremendous case load of the Supreme
law. Court which includes the backlog of the past
decades.250
Public Purpose. Discretionary funds appropriated
for particular officials shall be disbursed only for B. Titles of Royalty and Nobility

247 249
Cruz, Philippine Political Law, p. 164 (1995 ed.) Cruz, Philippine Political Law, p. 160 (1995 ed.)
248 250
Cruz, Philippine Political Law, p. 164 (1995 ed.) Cruz, Philippine Political Law, p. 146 (1995 ed.)

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3. Initiative on local legislation


Section 31. No law granting a title of which refers to a petition proposing to enact a
royalty or nobility shall be enacted. regional, provincial, city, municipal or barangay
law, resolution or ordinance.
Reason. To preserve the republican and
democratic nature of our society by prohibiting the Local Initiative. Not less than 2,000 registered
creation of privileged classes with special voters in case of autonomous regions, 1,000 in
perquisites not available to the rest of the citizenry. case of provinces and cities, 100 in case of
municipalities, and 50 in case of barangays, may
XIV. INITIATIVE AND REFERENDUM file a petition with the Regional Assembly or local
legislative body, respectively, proposing the
Initiative and Referendum adoption, enactment, repeal, or amendment, of any
initiative law, ordinance or resolution. (Sec. 13 RA 6735)
Referendum
Limitations on local initiative:
Section 32. The Congress shall as 1. The power of local initiative shall not be
early as possible, provide for a exercised more than once a year;
system of initiative and referendum, 2. Initiative shall extend only to subjects or
and the exceptions therefrom, matters which are within the legal matters
whereby the people can directly which are within the legal powers of the local
propose and enact laws or approve or legislative bodies to enact;
reject any act or law or part thereof
passed by the Congress or local
3. If any time before the initiative is held, the local
legislative body shall adopt in toto the
legislative body after the registration
proposition presented, the initiative shall be
of a petition therefor signed by at
cancelled. However, those against such action
least ten per centum of the total
may if they so desire, apply for intitiative.
number of registered voters, of which
every legislative district must be
Q: Petitioners filed a petition with COMELEC
represented by at least three per
to hold a plebiscite on their petition for an
centum of the registered voters
initiative to amend the Constitution by
thereof.
adopting a unicameral-parliamentary form of
government and by providing for transitory
1. Initiative and referendum provisions.
The Congress shall as early as possible, provide A: An initiative to change the Constitution
for a system of initiative and referendum, and the applies only to an amendment and not
exceptions therefrom. revision. Revision broadly implies a change
that alters basic principle in the Constitution
Petition. A petition must be signed by at least 10% like altering the principle of separation of
of the total number of registered voters, of which powers or the system of checks and
every legislative district must be represented by at balance. The initiative of the petitioners is a
least 3% of the registered voters thereof. The revision and not merely an amendment.
petition must then be registered. (Lambino v. COMELEC)

RA 6735. The current implementing law is RA 3. Referendum


6735, an Act Providing for System of Initiative and Power of the electorate to approve or reject
Referendum. legislation through an election called for the
purpose.
2. Initiative.
The power of the people to propose amendments Two Classes of Referendum
to the Constitution or to propose and enact 1. Referendum on statutes which refers to a
legislation. petition to approve or reject an act or la, or part
thereof, passed by Congress;
Three systems of Initiative: 2. Referendum on local laws which refers to a
1. Initiative on the Constitution petition to approve or reject a law, resolution or
which refers to a petition proposing ordinance enacted by regional assemblies and
amendments to the Constitution; local legislative bodies. (Sec. 2(c) RA 6735)
2. Initiative on statutes which
Prohibited Measures. The following cannot be
refers to a petition proposing to enact a
subject of an initiative or referendum:
national legislation.
1. Petition embracing more than one subject shall
be submitted to the electorate.

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2. Statutes involving emergency measures, the


enactment of which is specifically vested in
Congress by the Constitution, cannot be
subject to referendum until ninety(90) days
after their effectivity. (Sec. 10 RA 6735)

Q: Is the People Power recognized in the


Constitution? (1987, 2000 and 2003 Bar
Examinations)
A: “People power” is recognized in the
Constitution, Article III, Section 4 of the 1987
Constitution guarantees the right of the people
peaceable to assemble and petition the
government for redress of grievances. Article VI,
Section 32 of the 1987 Constitution requires
Congress to pass a law allowing the people to
directly propose or reject any act or law or part of it
passed by congress or a local legislative body.
Article XIII, Section 16 of the 1987 Constitution
provides that the right of the people and their
organizations to participate in all levels of social,
political, and economic decision-making shall not
be abridged and that the State shall, by law,
facilitate the establishment of adequate
consultation mechanisms. Article XVII, Section 2 of
the 1987 Constitution provides that subject to the
enactment of an implementing law, the people may
directly propose amendments to the Constitution
through initiative.

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B. Executive Power, Scope

EXECUTIVE DEPARTMENT 1. The scope of power is set forth in the


Constitution specifically in Article VII.

I. Executive Power (§ 1) 2. However, Executive power is more


II. The President (§ 2-13) than the sum of specific powers enumerated in
the Constitution. It includes residual
III. The Vice-President powers252 not specifically mentioned in the
IV. Powers of the President Constitution. (Marcos v. Manglapus (1989)
V. Power of Appointment (§ 14-16)
The prosecution of crimes appertains to
VI. Power of Control (§ 17) the Executive Department, whose
VII. Military Powers (§ 18) responsibility is to see the laws are
VIII. Power of Executive Clemency faithfully executed. (Webb v. De Leon)253
(§ 19)
IX. Borrowing Power (§ 20) 3. BUT the President cannot dispose of
State property unless authorized by law.254
X. Foreign Affairs Power (§ 21) 4. Enforcement and administration of
XI. Budgetary Power (§ 22) election laws is the authority of the
XII. Informing Power (§ 23) COMELEC.255
XIII.Other Powers
C. Executive Power, Where Vested

I. EXECUTIVE POWER The Executive power shall be vested in the


President of the Philippines.

Executive Power, (Definition) D. Ceremonial Functions (Head of State)


Scope
Where Vested In a presidential system, the presidency includes
Ceremonial Functions many other functions than just being executive.
Executive Immunity The president is the [symbolic and] ceremonial
Executive Privilege head of the government of the [Philippines].256
Cabinet
E. Executive Immunity from suit
Section 1. The Executive power shall
be vested in the President of the Rules on Immunity during tenure
Philippines 1. The President is immune
from suit during his tenure.257
A. Executive Power (Definition)
252
Residual Powers are those which are implicit in and correlative to
The executive power is the power to enforce and the paramount duty residing in that office to safeguard and protect
administer the laws.251 (NEA v. CA, 2002) general welfare.
253
See Jacinto Jimenez, Political Law Compendium p.306 (2005 ed.)
254
251
Justice Irene Cortes in the case of Marcos v. Manglapus (1989) See Laurel v. Garcia (Roponggi Case)
opines: “It would be inaccurate… to state that ‘executive power’ is 255
Cruz, Philippine Political Law, p. 308 (1995 ed).
the power to enforce laws, for the President is head of State as well 256
as head of government and whatever power inhere in such positions See Bernas Commentary, p 800 (2003 ed).
257
pertain to the office unless the Constitution itself withholds it.” The incumbent President is immune from suit or from being
brought to court during the period of their incumbency and tenure.
M.T., in his attempt to provide a comprehensive interpretation of (In re Saturnino Bermudez,1986)
executive power provides: “The President during his tenure of office or actual incumbency, may
“Executive power refers to the power of the President: not be sued in ANY civil or criminal case. It will degrade the dignity
(a) to execute and administer laws (b) power enumerated in the of the high office of the President, the Head of State, if he can be
Constitution (c) those powers that inhere to the President as head of dragged into court litigations while serving as such.” (David v.
state and head of government, and (d) residual powers.” [Ermita])
“Executive power refers to the totality of the President’s power.” Article VII, Section 17 (1st Sentence) of the 1973 Constitution
provides: “The President shall be immune from suit during his
According to Sinco, “Executive power refers to the legal and tenure.” The immunity granted by the 1st sentence while the President
political functions of the President involving the exercise of was in office was absolute. The intent was to give the President
discretion. (Philippine Political Law, p.242 (1954 ed.) absolute immunity even for wrongdoing committed during his

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2. He may be filed Types of Executive Privilege (Neri v. Senate)


impeachment complaint during his tenure. Variety of Executive Privilege (Senate v. Ermita)
(Article XI) Kinds of Executive Privilege (Neri v. Senate)
3. The President may not be Elements of Presidential Communications Privilege
prevented from instituting suit (Soliven v. Presidential Communications are Presumptively
Makasiar) Privileged
4. There is nothing in our laws Executive Privilege v. Public Interest
that would prevent the President from waiving Power of Inquiry v. Executive Privilege
the privilege. The President may shed the Case Digest of Neri v. Senate
protection afforded by the privilege. (Soliven v.
Makasiar) 1) Definition
5. Heads of departments Briefly and in simplest terms, it is the power of the
cannot invoke the presidents’ immunity (Gloria President to withhold certain types of information
v. CA) from the public, from the courts, and from
Rules on Immunity after tenure Congress.
6. Once out of office, even
2) How invoked
before the end of the six year term, immunity
for non-official acts is lost. Such was the case Invoked in relation to specific categories of
of Joseph Estrada. (See Bernas Commentary, information. Executive privilege is properly
p 804 (2003 ed.) It could not be used to shield invoked in relation to specific categories of
a non-sitting President from prosecution for information and not to categories of persons.
alleged criminal acts done while sitting in (While executive privilege is a constitutional
office. (Estrada v. Disierto; See Romualdez v. concept, a claim thereof may be valid or not
Sandiganbayan) depending on the ground invoked to justify it and
the context in which it is made. Noticeably absent
Note: In David v. Arroyo, the Court held that it is is any recognition that executive officials are
improper to implead President Arroyo as exempt from the duty to disclose information by the
respondent. However, it is well to note that in mere fact of being executive officials. (Senate v.
Rubrico v. Arroyo, Min. Res., GR No, 180054, Ermita)
October 31, 2007, the Supreme Court ordered the
respondents, including President Arroyo, to make a 3) Who can invoke
return of the writ: “You, respondents President In light of this highly exceptional nature of the
Macapagal Arroyo….are hereby required to make privilege, the Court finds it essential to limit to the
a return of the writ before the Court of Appeals…” President the power to invoke the privilege. She
may of course authorize the Executive Secretary
Reasons for the Privilege: to invoke the privilege on her behalf, in which case
1. Separation of powers. The separation of the Executive Secretary must state that the
powers principle is viewed as demanding the authority is "By order of the President," which
executive’s independence from the judiciary, so means that he personally consulted with her. The
that the President should not be subject to the privilege being an extraordinary power, it must be
judiciary’s whim.258 wielded only by the highest official in the executive
2. Public convenience. By reason of public hierarchy. In other words, the President may not
convenience, the grant is to assure the exercise of authorize her subordinates to exercise such power.
presidential duties and functions free from any (Senate v. Ermita) (It follows, therefore, that when an
hindrance or distraction, considering that the Chief official is being summoned by Congress on a matter
Executive is a job that, aside from requiring all of which, in his own judgment, might be covered by
executive privilege, he must be afforded reasonable time
the office-holder’s time, also demands undivided to inform the President or the Executive Secretary of
attention (Soliven v. Makasiar) the possible need for invoking the privilege. This is
necessary in order to provide the President or the
F. Executive Privilege Executive Secretary with fair opportunity to consider
Definition whether the matter indeed calls for a claim of executive
How Invoked privilege. If, after the lapse of that reasonable time,
Who may invoke neither the President nor the Executive Secretary invokes
the privilege, Congress is no longer bound to respect the
Privilege Not Absolute failure of the official to appear before Congress and may
tenure. (Bernas, Philippine Political Law, 1984) Although the new then opt to avail of the necessary legal means to compel
Constitution has not reproduced the explicit guarantee of presidential his appearance.) (Senate v. Ermita)
immunity from suit under the 1973 Constitution, presidential
immunity during tenure remains as part of the law. 4) Privilege Not Absolute
(See Bernas Commentary, p 804 (2003 ed.) Claim of executive privilege is subject to balancing
against other interest. In other words,
258
See Almonte v. Vasquez

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confidentiality in executive privilege is not of separation of powers


absolutely protected by the Constitution. Neither and the President’s
the doctrine of separation of powers, nor the need unique constitutional
for confidentiality of high-level communications, role
without more, can sustain an absolute, unqualified Applies to documents in
Presidential privilege of immunity from judicial their entirety and covers
process under all circumstances. (Neri v. Senate) final and post decisional
A claim of executive privilege does not guard materials as well as pre-
against a possible disclosure of a crime or deliberative ones
wrongdoing (Neri v. Senate)
8) Elements of presidential communications
5) Types of Executive Privilege259 privilege (Neri v. Senate)
1. State secrets (regarding military, diplomatic and 1) The protected communication must relate to a
other security matters) “quintessential and non-delegable presidential
2. Identity of government informers power.”
3. Information related to pending investigations 2) The communication must be authored or
4. Presidential communications “solicited and received” by a close advisor of the
5. Deliberative process President or the President himself. The judicial test
is that an advisor must be in “operational proximity”
6) Variety of Executive Privilege according to with the President.
Tribe (Tribe cited in Senate v. Ermita) 3) The presidential communications privilege
1.State Secrets Privilege. that the information is remains a qualified privilege that may be overcome
of such nature that its disclosure would subvert by a showing of adequate need, such that the
crucial military or diplomatic objectives; information sought “likely contains important
(2)Informer’s privilege. Privilege of the evidence” and by the unavailability of the
Government not to disclose the identity of information elsewhere by an appropriate
persons who furnish information of violations of investigating authority.
law to officers charged with the enforcement of
that law. 9) Presidential Communications are
(3) General Privilege. For internal deliberations. Presumptively Privileged
Said to attach to intragovernmental documents The presumption is based on the President’s
reflecting advisory opinions, recommnendations generalized interest in confidentiality. The privilege
and deliberations comprising part of a process by is necessary to guarantee the candor of
which governmental decisions and policies presidential advisors and to provide the President
formulated. and those who assist him with freedom to
explore alternatives in the process of shaping
7) Two Kinds of Privilege under In re: Sealed policies and making decisions and to do so in a
Case (Neri v. Senate) way many would be unwilling to express except
1. Presidential Communications Privilege privately.
2. Deliberative Process Privilege The presumption can be overcome only by
mere showing of public need by the branch
Presidential Deliberative seeking access to conversations. The courts are
Communications Process Privilege enjoined to resolve the competing interests of the
Privilege political branches of the government “in the
Pertains to Includes advisory manner that preserves the essential functions of
communications, opinions, each Branch.”
documents or other recommendations
materials that reflect and deliberations xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
presidential decision comprising part of a
making and process by which 10) Executive Privilege and the Public
deliberations that the governmental The Court held that this jurisdiction recognizes the
President believes decisions and common law holding that there is a “governmental
should remain policies are privilege against public disclosure with respect to
confidential formulated state secrets regarding military, diplomatic and
Applies to decision Applies to decision other national security matters and cabinet closed
making of the President making of executive door meetings.” (Chavez v. PCGG)
officials
Rooted in the Rooted on common 11) Power of Inquiry v. Executive Privilege
constitutional principle law privileges
Requirement in invoking the privilege: formal
259
Primer on Neri v. Senate made by Atty. Carlos Medina. claim of privilege. “Congress has undoubtedly

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has a right to information from the executive branch the answers to the three (3) questions in the enactment
whenever it is sought in aid of legislation. If the of a law.
executive branch withholds such information on the (2) Yes. The Supreme Court said that the Senate
Committees committed grave abuse of discretion in
ground that it is privileged, it must so assert it
citing Neri in contempt. The following reason among
and state the reason therefore and why it must others was given by the Supreme Court:
be respected.” (Justice Carpio Morales in Senate a. There was a
v. Ermita) legitimate claim of executive privilege.
A formal and proper claim of executive privilege For the claim to be properly invoked, there must be
requires a specific designation and description a formal claim by the President stating the “precise
of the documents within its scope as well as and certain reason” for preserving confidentiality.
precise and certain reasons for preserving their The grounds relied upon by Executive Secretary
Ermita are specific enough, since what is required is
confidentiality. Without this specificity, it is
only that an allegation be made “whether the
impossible for a court to analyze the claim short of information demanded involves military or diplomatic
disclosure of the very thing sought to be protected. secrets, closed-door Cabinet meetings, etc.” The
Upon the other hand, Congress must not require particular ground must only be specified, and the
the executive to state the reasons for the claim with following statement of grounds by Executive
such particularity as to compel disclosure of the Secretary Ermita satisfies the requirement: “The
information which the privilege is meant to protect. context in which executive privilege is being invoked
(Senate v. Ermita) is that the information sought to be disclosed might
impair our diplomatic as well as economic relations
with the People’s Republic of China.”
12) Neri v. Senate Committee
Background: Comments on Neri v. Senate
This case is about the Senate investigation of
Atty Medina: The ruling expands the area of
anomalies concerning the NBN-ZTE project. During
the hearings, former NEDA head Romulo Neri information that is not accessible to the public.
refused to answer certain questions involving his Executive privilege can now be invoked in
conversations with President Arroyo on the ground communications between his close advisors. (See
they are covered by executive privilege. When the the second element in the presidential
Senate cited him in contempt and ordered his arrest, communications privilege)
Neri filed a case against the Senate with the Bernas: The problem with the doctrine is, anytime
Supreme Court. On March 25, 2008, the Supreme the President says “That’s covered”, that’s it.
Court ruled in favor of Neri and upheld the claim of
Nobody can ask anymore questions.
executive privilege.
Issues: ASM: I think when the President says, “It’s
(1) . Are the communications sought to be elicited by covered,” the Court can still make an inquiry under
the three questions covered by executive privilege? the Grave Abuse Clause. This inquiry can be done
(2) Did the Senate Committees commit grave abuse in an executive session.
of discretion in citing Neri in contempt and ordering
his arrest? G. Cabinet
Ruling:
Extra-constitutional creation
(1) The SC said that the communications sought to
be elicited by the three questions are covered by the Composition
presidential communications privilege, which is one Prohibitions
type of executive privilege. Vice-President
Using the elements of presidential communications Ex-officio Capacity
privilege, the SC is convinced that the communications Prohibited Employment
elicited by the three (3) questions are covered by the Prohibited Compensation
presidential communications privilege.
First, the communications relate to a “quintessential
1. Extra-constitutional creation
and non-delegable power” of the President, i.e. the
power to enter into an executive agreement with other Although the Constitution mentions the Cabinet a
countries. This authority of the President to enter into number of times, the Cabinet itself as an institution
executive agreements without the concurrence of the is extra-constitutionally created. 260
Legislature has traditionally been recognized in
Philippine jurisprudence. 2. Composition
Second, the communications are “received” by a close
advisor of the President. Under the “operational
It is essentially consist of the heads of departments
proximity” test, petitioner can be considered a close who through usage have formed a body of
advisor, being a member of President Arroyo’s cabinet. presidential adviser who meet regularly with the
Third, there is no adequate showing of a compelling President.261
need that would justify the limitation of the privilege and
of the unavailability of the information elsewhere by 3. Prohibitions (1987, 1996 Bar Question)
an appropriate investigating authority. The record is
bereft of any categorical explanation from respondent 260
Bernas Commentary, p 808 (2003 ed).; See art.7 secs. 3, 11 and
Committees to show a compelling or critical need for
13.
261
Bernas Commentary, p 808 (2003 ed).

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(Applies to Members of Cabinet, their deputies or the PCGG since the PCGG answers to the
assistants.) President.263
1. Unless otherwise provided in
the Constitution, shall not hold any other 7. Prohibited Compensation
employment during their tenure. When an Undersecretary sits for a Secretary in a
2. Shall not directly or indirectly function from which the Secretary may not receive
practice any other profession, participate in additional compensation, the prohibition on the
any business, or be financially interested in Secretary also applies t the Undersecretary.264
any contract with, or in any franchise or special
privilege granted by the government or any
subdivision, agency, or instrumentality thereof, II. The President
including government-owned or controlled
corporations or their subsidiaries during their
tenure. Who is he?
3. Strictly avoid conflict of Qualifications
interest in the conduct of their office during Election
their tenure. (Section 13) Term of Office
Oath of Office
4. Vice-President Privileges
Note that the VP may be appointed to the Cabinet, Prohibitions/Inhibitions
without need of confirmation by the Commission on Vacancy Situations
Appointments; and the Secretary of Justice is an Rules of Succession
ex officio member of the Judicial and Bar Council. Temporary Disability
Serious Illness
5. Ex-officio262 capacity (2002 Bar Question) Removal from Office
The prohibition must not be construed as applying
to posts occupied by the Executive officials without A. Who is the President
additional compensation in an ex-officio capacity
as provided by law and as required by the primary The President is the Head of State and the Chief
functions of the said official’s office. The reason is Executive.265 (He is the executive) He is the
that the posts do not comprise “any other office” repository of all executive power.266
within the contemplation of the constitutional
prohibition, but properly an imposition of additional B. Qualifications
duties and functions on said officials. Qualifications
To illustrate, the Secretary of Transportation and Reason for Qualifications
Communications is the ex officio Chirman of the Qualifications are exclusive
Board of Philippine Ports Authority. The ex officio Natural Born
position being actually and in legal contemplation Registered Voter
part of the principal office, it follows that the official Age
concerned has no right to receive additional Registered Qualification
compensation for his services in said position. The
reason is that these services are already paid for Section 2. No person may be elected
and covered by the compensation attached to the President unless he is a natural-born
principal office. (National Amnesty Commission v. citizen of the Philippines, a registered
COA, 2004) voter, able to read and write, at least
forty years of age on the day of the
6. Prohibited Employment election, and a resident of the
Since the Chief Presidential Legal Counsel has the Philippines for at least ten years
duty of giving independent and impartial legal immediately preceding such election.
advice on the actions of the heads of various
executive departments and agencies and to review 1. Qualifications
investigations involving other presidential 1. Natural born citizen of the Phils.
appointees, he may not occupy a position in any of 2. Registered voter
the offices whose performance he must review. It 3. Able to read write
would involve occupying incompatible positions.
Thus he cannot be Chairman at the same time of 263
Public Interest Group v Elma, G. R. No. 138965, June 30,
2006.
262
An ex-oficio position is one which an official holds but is 264
Bitonio v. COA, G.R. No. 147392, March 12, 2004.
germane to the nature of the original position. It is by virtue of the 265
original position that he holds the latter, therefore such is Bernas Primer at 289 (2006 ed.)
266
constitutional. Sinco, Philippine Political Law, p.240 (1954 ed.)

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4. At least 40 years of age o the day of at noon on the thirtieth day of June next
the election following the day of the election and shall end
5. A resident of the Philippines for at at noon of the same date six years thereafter.
least 10 years immediately preceding the The President shall not be eligible for any
election. reelection. No person who has succeeded as
President and has served as such for more
2. Reason for Qualifications than four years shall be qualified for election to
Qualifications are prescribed for public office to the same office at any time.
ensure the proper performance of powers and No Vice-President shall serve for more than two
duties.267 successive terms. Voluntary renunciation of the
office for any length of time shall not be considered
as an interruption in the continuity of the service for
3. Qualifications are exclusive
the full term for which he was elected.
The above qualifications are exclusive and may not Unless otherwise provided by law, the regular
be reduced or increased by Congress. The election for President and Vice-President shall
applicable rule of interpretation is expression unius be held on the second Monday of May.
est exclusio alterius.268 The returns of every election for President and
Vice-President, duly certified by the board of
4. Natural Born canvassers of each province or city, shall be
One who is a citizen of the Philippines from birth transmitted to the Congress, directed to the
without having to perform any act to acquire or President of the Senate. Upon receipt of the
perfect his Philippine citizenship. (Article IV, certificates of canvass, the President of the
Section 2) Senate shall, not later than thirty days after the
day of the election, open all the certificates in
An illegitimate child of an American mother and a the presence of the Senate and the House of
Filipino father is a natural born Filipino citizen if Representatives in joint public session, and the
paternity is clearly proved. Hence such person Congress, upon determination of the
would be qualified to run for President. This was authenticity and due execution thereof in the
the case of Fernando Poe, Jr. (Tecson v. COMELEC) manner provided by law, canvass the votes.
The person having the highest number of votes
5. Registered Voter shall be proclaimed elected, but in case two or
Possession of the qualifications for suffrage as more shall have an equal and highest number
enumerated in Article V, Section 1. of votes, one of them shall forthwith be chosen
by the vote of a majority of all the Members of
6. Age both Houses of the Congress, voting
The age qualification must be possessed “on the separately.
day of the election for President” that is, on the day The Congress shall promulgate its rules for the
set by law on which the votes are cast.269 canvassing of the certificates.
The Supreme Court, sitting en banc, shall be
7. Residence Qualification the sole judge of all contests relating to the
The object being to ensure close touch by the election, returns, and qualifications of the
President with the country of which he is to be the President or Vice-President, and may
highest official and familiarity with its conditions promulgate its rules for the purpose.
and problems, the better for him to discharge his
duties effectively.270 1. Regular Election
The President (and Vice-President) shall be
C. Election elected by direct vote of the people. Unless
Regular Election otherwise provided by law, the regular election for
Special Election President (and Vice-President) shall be held on the
Congress as Canvassing Board second Monday of May.
Who will be Proclaimed
Presidential Electoral Tribunal 2. Special Election (Discussed under Section 10)

Section 4. The President and the Vice- 3. Congress as Canvassing Board


President shall be elected by direct vote of the The returns of every election for President and
people for a term of six years which shall begin Vice-President, duly certified by the board of
canvassers of each province or city, shall be
267
Cruz, Philippine Political Law, p. 174 (1995 ed). transmitted to the Congress, directed to the
268
Cruz, Philippine Political Law, p. 174 (1995 ed). President of the Senate. Upon receipt of the
269 certificates of canvass, the President of the Senate
Bernas Commentary, p 809 (2003 ed).
270
shall, not later than thirty days after the day of the
Cruz, Philippine Political Law, p. 175 (1995 ed).

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election, open all the certificates in the presence of Congress may continue the canvass even after
the Senate and the House of Representatives in the final adjournment of its session. The final
joint public session, and the Congress, upon adjournment of Congress does not terminate an
determination of the authenticity and due unfinished presidential canvass. Adjournment
execution thereof in the manner provided by terminates legislation but not the non-legislative
law, canvass the votes. The Congress shall functions of Congress such as canvassing of
promulgate its rules for the canvassing of the votes. (Pimentel v. Joint Committee of
certificates. Congress, 2004)

Is the function of Congress merely 4. Who will be proclaimed


ministerial? The person having the highest number of votes
Bernas: The function of Congress is not merely shall be proclaimed elected, but in case two or
ministerial. It has authority to examine the more shall have an equal and highest number of
certificates of canvass for authenticity and due votes, one of them shall forthwith be chosen by the
execution. For this purpose, Congress must pass vote of a majority of all the Members of both
a law governing their canvassing of votes.271 Houses of the Congress, voting separately.
Cruz: As the canvass is regarded merely as a
ministerial function, the Congress shall not have 5. Presidential Electoral Tribunal
the power to inquire into or decide questions of The Supreme Court, sitting en banc, shall be
alleged irregularities in the conduct of the
the sole judge of all contests relating to the
election contest. Normally, as long as the
election returns are duly certified and appear to election, returns, and qualifications of the
be authentic, the Congress shall have no duty President or Vice-President, and may
but to canvass the same and to proclaim as promulgate its rules for the purpose.
elected the person receiving the highest number
of votes.272 Q: Can Susan Roces, widow of Fernando Poe.
Justice Carpio Morales: This duty has been Jr, intervene and/or substitute for him, assuming
characterized as being ministerial and arguendo that the protest could survive his
executive.273 death?
A: No. The fundamental rule applicable in a
Validity of Joint Congressional Committee. presidential election protest is Rule 14 of the
Congress may validly delegate the initial PET Rules. It provides that only the 2nd and 3rd
determination of the authenticity and due placer may contest the election. The Rule
execution of the certificates of canvass to a Joint effectively excludes the widow of a losing
Congressional Committee so long as the candidate.274 (Fernando Poe v. Arroyo)
decisions and final report of the said Committee
shall be subject to the approval of the joint The validity, authenticity and correctness of the
session of Both Houses of Congress voting SOVs and COCs are under the Tribunal’s
separately. (Lopez v. Senate, 2004) jurisdiction. The constitutional function as well as
the power and the duty to be the sole judge of all
COMELEC. There is no constitutional or contests relating to election, returns and
statutory basis for COMELEC to undertake a qualification of President and Vice-President is
separate and “unofficial” tabulation of result expressly vested in the PET in Section 4 Article
whether manually or electronically. If Comelec is VII of the Constitution. Included therein is the
proscribed from conducting an official canvass of duty to correct manifest errors in the SOVs and
the votes cast for the President and Vice- COCs. (Legarda v. De Castro, 2005)
President, the Comelec is, with more reason,
prohibited from making an “unofficial” canvass of Q: After Fidel Ramos was declared President,
said votes. (Brilantes v. Comelec, 2004) defeated candidate Miriam Defensor Santiago
filed an election protest with the SC.
The proclamation of presidential and vice- Subsequently, while the case is pending, she ran
presidential winners is a function of Congress for the office of Senator and, having been
and not of Comelec (Macalintal v. COMELEC) declared elected, assumed office as Senator.
What happens to her election protest?
A: Her protest is deemed abandoned with her
election and assumption of office as Senator.
(Defensor Santiago v. Ramos)
271
Bernas Primer at 293 (2006 ed.)
272
Cruz, Philippine Political Law, p. 176 (1995 ed). D. Term of Office
273
Separate Opinion of Justice Carpio Morales in Pimentel v. Joint 274
Committee (June 22, 2004) citing Lopez v. Roxas, 17 SCRA 756, Fernando Poe, Jr. v. Arroyo, P.E.T. CASE No. 002.
769 (1966) March 29, 2005.

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Section 6. The President shall have


6 years. The President (and the Vice-President) an official residence. The salaries of
shall be elected by direct vote of the people for a the President and Vice-President shall
term of six years. be determined by law and shall not be
decreased during their tenure. No
Noon of June 30.Term hall begin at noon on the increase in said compensation shall
thirtieth day of June next following the day of the take effect until after the expiration of
election and shall end at noon of the same date six the term of the incumbent during
years thereafter. which such increase was approved.
They shall not receive during their
No re-election. The President shall not be eligible tenure any other emolument from the
for any reelection. No person who has succeeded Government or any other source.
as President and has served as such for more than
four years shall be qualified for election to the 1. Official Residence
same office at any time. The President shall have an official residence.
Reason for prohibition on any reelection for 2. Salary
Presidency. It was thought that the elimination of
The salaries of the President and Vice-President
the prospect of reelection would make for a more
shall be determined by law and shall not be
independent President capable of making correct
decreased during their tenure.
even unpopular decisions.275 He is expected to
The initial salary of the President is 300,00 per
devote his attention during his lone term to the
year. (Article XVIII Section 17)
proper discharge of his office instead of using its
No increase during their term. No increase in
perquisites to ensure his remaining therein for
said compensation shall take effect until after the
another term.276
expiration of the term of the incumbent during
which such increase was approved.
E. Oath of Office
No additional emolument during their tenure.
They shall not receive during their tenure any other
Section 5. Before they enter on the emolument from the Government or any other
execution of their office, the source.
President, the Vice-President, or the
Acting President shall take the 3. Immunity from Suit
following oath or affirmation: (Discussed under Section 1 [I(E)])
“I do solemnly swear (or affirm) that I
will faithfully and conscientiously fulfill G. Prohibitions/Inhibitions
my duties as President (or Vice-
President or Acting President) of the
Section 13. The President, Vice-President, the
Philippines, preserve and defend its Members of the Cabinet, and their deputies or
Constitution, execute its laws, do assistants shall not, unless otherwise provided in this
justice to every man, and consecrate Constitution, hold any other office or employment
myself to the service of the Nation. So during their tenure. They shall not, during said tenure,
help me God.” directly or indirectly, practice any other profession,
(In case of affirmation, last sentence participate in any business, or be financially interested
will be omitted.) in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including
Oath. The oath is not a source of substantive government-owned or controlled corporations or their
power but is merely intended to deepen the sense subsidiaries. They shall strictly avoid conflict of interest
of responsibility of the President and ensure a in the conduct of their office.
more conscientious discharge of his office.277 The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not
F. Privileges during his tenure be appointed as Members of the
Constitutional Commissions, or the Office of the
1. Official Residence Ombudsman, or a Secretaries, Undersecretaries,
2. Salary chairmen or heads of bureaus or offices, including
3. Immunity from suit government-owned or controlled corporations and their
subsidiaries.

Prohibitions:
275
Bernas Commentary, p 812 (2003 ed).
1. Shall not receive increase
276 compensation during the term of the
Cruz, Philippine Political Law, p. 177 (1995 ed).
277
Cruz, Philippine Political Law, p. 183 (1995 ed).

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incumbent during which such increase was practice of Cabinet members occupying seats in
approved. (sec 6) the boards of directors of affluent corporations
2. Shall not receive any other owned or controlled by the government from which
emoluments from the government or any other they derived substantial income in addition to their
source during their tenure. (sec 6) regular salaries. The second paragraph of Section
3. Unless otherwise provided in 13 is intended as a guarantee against nepotism.280
the Constitution, shall not hold any other
employment during their tenure. H. Vacancy
4. Shall not directly or indirectly
Section 7. The President-elect and the Vice-President-
practice any other profession, participate in elect shall assume office at the beginning of their
any business, or be financially interested in terms.
any contract with, or in any franchise or special If the President-elect fails to qualify, the Vice-
privilege granted by the government or any President-elect shall act as President until the
subdivision, agency, or instrumentality thereof, President-elect shall have qualified.
including government-owned or controlled If a President shall not have been chosen, the Vice-
corporations or their subsidiaries during their President-elect shall act as President until a President
shall have been chosen and qualified.
tenure. If at the beginning of the term of the President, the
5. Strictly avoid conflict of President-elect shall have died or shall have become
interest in the conduct of their office during permanently disabled, the Vice-President-elect shall
their tenure. become President.
6. May not appoint spouse or Where no President and Vice-President shall have
been chosen or shall have qualified, or where both
relatives by consanguinity or affinity within the shall have died or become permanently disabled, the
fourth civil degree as Member of Constitutional President of the Senate or, in case of his inability, the
Commissions or the Office of the Ombudsman, Speaker of the House of Representatives shall act as
or as Secretaries, Under Secretaries, President until a President or a Vice-President shall
chairmen or heads of bureaus or offices, have been chosen and qualified.
including government-owned or controlled The Congress shall, by law, provide for the manner in
corporations and their subsidiaries. which one who is to act as President shall be selected
Note: Nos. 1-6 above applies to the President. 1-5 until a President or a Vice-President shall have
qualified, in case of death, permanent disability, or
applies to the Vice-President. 3-5 applies to inability of the officials mentioned in the next preceding
Members of Cabinet, their deputies or assistants. paragraph.

Prohibition against increase of compensation


Section 8. In case of death, permanent disability,
during tenure. The prohibition against the change removal from office, or resignation of the President, the
of their salary either by reduction or increase Vice-President shall become the President to serve the
during their term is meant to prevent the legislature unexpired term. In case of death, permanent disability,
from “weakening the fortitude by appealing to their removal from office, or resignation of both the
avarice or corrupting their integrity by operating on President and Vice-President, the President of the
their necessities. 278 Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President
until the President or Vice-President shall have been
Emoluments. The emoluments which they may
elected and qualified.
not receive during their tenure from the The Congress shall, by law, provide who shall serve as
government or any other source (that is, private) President in case of death, permanent disability, or
refers to any compensation received for services resignation of the Acting President. He shall serve until
rendered or form possession of an office. This the President or the Vice-President shall have been
means that the President cannot accept other elected and qualified, and be subject to the same
employment elsewhere, whether in the government restrictions of powers and disqualifications as the
or in the private sector, and must confine himself to Acting President.
the duties of his office.279
Section 10. The Congress shall, at ten o’clock in the
Reason for Inhibitions under Section 13. The morning of the third day after the vacancy in the offices
inhibitions are in line with the principle that a public of the President and Vice-President occurs, convene in
accordance with its rules without need of a call and
office is a public trust and should not be abused for
within seven days enact a law calling for a special
personal advantage. Officers mention under election to elect a President and a Vice-President to be
Section 13 (except the VP who may be appointed held not earlier than forty-five days nor later than sixty
to the Cabinet) are inhibited from holding any other days from the time of such call. The bill calling such
office or employment in the government during special election shall be deemed certified under
their tenure. This will discontinue the lucrative paragraph 2, Section 26, Article VI of this Constitution
and shall become law upon its approval on third
278
Cruz, Philippine Political Law, p. 183 (1995 ed).
279 280
Cruz, Philippine Political Law, p. 183 (1995 ed). Cruz, Philippine Political Law, p. 185 (1995 ed).

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reading by the Congress. Appropriations for the special dies or is permanently becomes President
election shall be charged against any current incapacitated before the
appropriations and shall be exempt from the beginning of his term
requirements of paragraph 4, Section 25, Article VI of 4. When both the President The Senate President or
this Constitution. The convening of the Congress and Vice-President have not the Speaker- in that order-
cannot be suspended nor the special election yet been chosen or have acts as President until a
postponed. No special election shall be called if the failed to qualify
President or Vice-
vacancy occurs within eighteen months before the date
of the next presidential election. 5. When both shall have died President qualifies.
or become permanently
incapacitated at the start of
Vacancy Situations:
the term.
1. Vacancy that occurs at the start of the 6. When the Senate Congress will decide by
term (Sec 7) President and the Speaker of law who will act as
2. Vacancy that occurs in mid-term (Sec the House shall have died or President until a President
8) shall have become
or Vice-President shall
3. Vacancy in both the presidency and permanently incapacitated, or
are unable to assume office. have been elected and
vice-presidency. (Section 10)
qualified.
Vacancy Situations under Section 7:
(The vacancy situations here occur after the office Section 8
has been initially filled.) Reason for Vacancy Succession
1. When the incumbent The vacancy created is
1. When a President has been chosen but
President dies or is thus permanent. The Vice-
fails to qualify at the beginning of his term permanently disabled, is
2. When no President has yet been chosen President becomes
removed or resigns.
at the time he is supposed to assume office. President.
3. When the President-elect dies or is 2. When both the President The Senate President or
and the Vice-President die, or the Speaker-in that order-
permanently incapacitated before the are permanently disabled, are
beginning of his term shall act as President until
removed, or resign.
4. When both the President and Vice- a President of Vice-
President have not yet been chosen or have President shall have been
failed to qualify qualified.
5. When both shall have died or become 3. When the Acting President Congress will determine
dies, or is permanently by law who will act as
permanently incapacitated at the start of the
incapacitated, is removed or President until a new
term. resigns.
President or Vice-
6. When the Senate President and the
President shall have
Speaker of the House shall have died or shall qualified.
have become permanently incapacitated, or
are unable to assume office.
Resignation. In Estrada v. Macapagal-Arroyo, the
SC through Justice Puno (main opinion) declared
Vacancy Situation under Section 8
that the resignation of President Estrada could not
(Vacancy that occurs in mid-term)
be doubted as confirmed by his leaving
1. When the incumbent President dies or is
Malacanang. The SC declared that the elements of
permanently disabled, is removed or resigns.
a valid resignation are (1) intent to resign; and (2)
2. When both the President and the Vice-
act of relinquishment. Both were present when
President die, or are permanently disabled, are
President Estrada left the Palace. Justice Puno
removed, or resign.
anchored his opinion mainly on the letter of
3. When the Acting President dies, or is
Estrada and on the diary of ES Edgardo Angara.
permanently incapacitated, is removed or resigns.
Permanent Disability. In Estrada v. Macapagal-
I. Rules of Succession
Arroyo, Justice Bellosillo anchored his concurrence
on permanent disability. He opined that permanent
Section 7 disability as contemplated by the Constitution does
Reason for Vacancy Succession not refer only to physical or mental incapacity, but
1. When a President has The Vice-President must likewise cover other forms of incapacities of a
been chosen but fails to becomes acting President permanent nature, e.g. functional disability.
qualify at the beginning of his until a President qualifies
term He views Estrada’s disability in (a) objective and
(b) subjective perspectives.
2. When no President has yet Objective Approach. “Without people, an effectively
been chosen at the time he is functioning cabinet, the military and the police, with
supposed to assume office. no recognition from Congress and the international
3. When the President-elect Vice-President elect community, [Estrada] had absolutely no support

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from and control of the bureaucracy from within No special elections. No special election shall be
and from without. In fact he had no more called if the vacancy occurs within eighteen months
functioning government to speak of. It is in this before the date of the next presidential election.
context that [Estrada] was deemed absolutely
unable to exercise or discharge the powers, duties J. Temporary Disability
and prerogatives of the Presidency.
Subjective Approach. [Estrada’s] contemporaneous Section 11. Whenever the President transmits to the
acts and statements during and after the critical President of the Senate and the Speaker of the House
episode are eloquent proofs of his implied-but of Representatives his written declaration that he is
nevertheless unequivocal-acknowledgment of the unable to discharge the powers and duties of his office,
permanence of his disability. and until he transmits to them a written declaration to
the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.
Comment on Estrada v. Macapagal-Arroyo Whenever a majority of all the Members of the Cabinet
Bernas: In sum, 3 justices (Puno, Vitug and Pardo) transmit to the President of the Senate and to the
accepted some form of resignation; 2 jsutices Speaker of the House of Representatives their written
(Mendoza and Bellosillo) saw permanent disability; declaration that the President is unable to discharge
3 justices (Kapuna, Yners Santiago and Sandoval- the powers and duties of his office, the Vice-President
Gutierrez) accepted the presidency of Arroyo as an shall immediately assume the powers and duties of the
irreversible fact. 5 justices (Quisumbing, Melo, office as Acting President.
Buena, De Leon and gonzaga-Reyes) signed the Thereafter, when the President transmits to the
President of the Senate and to the Speaker of the
decision without expressing any opinion. Davide House of Representatives his written declaration that
and Panganiban abstained. In the light of all this, it no inability exists, he shall reassume the powers and
is not clear what doctrine was established by duties of his office. Meanwhile, should a majority of all
the decision.281 the Members of the Cabinet transmit within five days to
the President of the Senate and to the Speaker of the
When the Senate President or Speaker becomes House of Representatives their written declaration that
Acting President, he does not lose the Senate the President is unable to discharge the powers and
presidency or the speakership.282 duties of his office, the Congress shall decide the
issue. For that purpose, the Congress shall convene, if
it is not in session, within forty-eight hours, in
Section 10 accordance with its rules and without need of call.
Call not needed. The Congress shall, at ten If the Congress, within ten days after receipt of the last
o’clock in the morning of the third day after the written declaration, or, if not in session, within twelve
vacancy in the offices of the President and Vice- days after it is required to assemble, determines by a
President occurs, convene in accordance with its two-thirds vote of both Houses, voting separately, that
rules without need of a call and within seven days the President is unable to discharge the powers and
enact a law calling for a special election to elect a duties of his office, the Vice- President shall act as
President; otherwise, the President shall continue
President and a Vice-President to be held not exercising the powers and duties of his office.
earlier than forty-five days nor later than sixty days
from the time of such call.
K. Serious Illness
Bill deemed certified. The bill calling such special
election shall be deemed certified under paragraph
2, Section 26, Article V1 of this Constitution and Section 12. In case of serious illness of the President,
shall become law upon its approval on third the public shall be informed of the state of his health.
The members of the Cabinet in charge of national
reading by the Congress. security and foreign relations and the Chief of Staff of
the Armed Forces of the Philippines, shall not be
Appropriations. Appropriations for the special denied access to the President during such illness.
election shall be charged against any current
appropriations and shall be exempt from the Section 12 envisions not just illness which
requirements of paragraph 4, Section 25, Article V1 incapacitates but also any serious illness which can
of this Constitution. be a matter of national concern.283
No suspension or postponement. The convening Reason for informing the public. To guarantee
of the Congress cannot be suspended nor the the people’s right to know about the state of
special election postponed. President’s health, contrary to secretive practice in
totalitarian regimes.284

Who has the duty to inform? The section does


not specify the officer on whom the duty devolves.
281
Bernas Commentary, p 827 (2003 ed).
282 283
Bernas Primer at 298 (2006 ed.) Bernas Primer at 300 (2006 ed.)
284
Bernas Commentary, p 832 (2003 ed).

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It is understood that the Office of the President


would be responsible for making the disclosure. D. Prohibitions and Inhibitions

Reason of the access. To allow the President to 1. Shall not receive increase
make the important decisions in those areas of
compensation during the term of the
government.285
incumbent during which such increase was
approved. (sec 6)
L. Removal from Office
2. Shall not receive any other
emoluments from the government or any other
Ways of removal from office: source during their tenure. (sec 6)
1. By Impeachment 3. Unless otherwise provided in
2. By People Power the Constitution, shall not hold any other
3. By Killing the President (e.g. employment during their tenure.
Assassination)286 4. Shall not directly or indirectly
(Number 2 is extra constitutional and Number 3 is illegal. –asm). practice any other profession, participate in
(But for purposes of examinations, answer number 1 only) any business, or be financially interested in
(Impeachment will be discussed under Article XI) any contract with, or in any franchise or special
privilege granted by the government or any
III. The Vice- President subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries during their
Who is the Vice-President
tenure.
Qualifications, Election, Term of Office
5. Strictly avoid conflict of
Oath of Office
interest in the conduct of their office during
Prohibitions/Inhibitions
their tenure. (Section 13)
Vacancy
Removal from Office
E. Vacancy in the Vice-Presidency
Appointment to Cabinet

A. Who is the Vice-President Section 9. Whenever there is a vacancy in the Office


of the Vice-President during the term for which he was
elected, the President shall nominate a Vice-President
His function is to be on hand to act as President from among the Members of the Senate and the House
when needed or to succeed to the presidency in of Representatives who shall assume office upon
case of a permanent vacancy in the office. The confirmation by a majority vote of all the Members of
President may also appoint him as a Member of both Houses of the Congress, voting separately.
the Cabinet. Such appointment does not need the
consent of the Commission on Appointments.287 F. Removal from Office

B. Qualifications, Election, Term of Office He may be removed from office in the same
manner as the President. (Section 3)
Section 3. There shall be a Vice-President who
shall have the same qualifications and term of F. Appointment to Cabinet
office and be elected with and in the same
manner as the President. xxx The Vice-President may be appointed as a
Member of the Cabinet. Such appointment requires
No Vice-President shall serve for more than two no confirmation. (Section 3)
successive terms. Voluntary renunciation of the
office for any length of time shall not be considered Justice Cruz submits that the Vice-President may
as an interruption in the continuity of the service for not receive additional compensation as member of
the full term for which he was elected. (Section 4) Cabinet because of the absolute prohibition in
Section 3 of Article VII.288
C. Oath of Office

Same as the President. See Section 5. IV. POWERS OF THE PRESIDENT

285
Bernas Commentary, p 832 (2003 ed). Constitutional Powers of the President
286
Number 2 is extra constitutional and Number 3 is illegal. -asm 1. Executive Power
287
Bernas Primer at 291 (2006 ed.)
2. Power of Appointment
3. Power of Control
288
Cruz, Philippine Political Law, p. 183 (1995 ed).

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4. Military Powers an individual who is to exercise the functions of a


5. Pardoning Power given office.289
6. Borrowing Power It is distinguished from designation in that the
7. Diplomatic Power latter simply means the imposition of additional
8. Budgetary Power duties, usually by law, on a person already in the
9. Informing Power public service.
10. Other Powers It is also different from the commission in that the
a. Call Congress to a Special Session latter is the written evidence of the appointment.
(art 6, sec 15)
b. Power to approve or veto bills (art 6 B. Nature of Power of Appointment
sec 27) 1. Executive in Nature
c. To consent to deputation of 2. Non-delegability
government personnel by the Commission 3. Necessity of Discretion
on Elections (art 19-C sec 2(4))
d. To discipline such deputies (art 19-C 1. Executive in Nature
sec 2(8)) Appointing power is executive in nature.
e. Emergency powers by delegation (Government v. Springer) Indeed, the filling up of
from Congress (art 6 sec 23(2)) an office created by law is the implementation or
f. Tariff Powers by delegation from execution of law.290
Congress (art 6 sec 28(2)) Although, intrinsically executive and therefore
g. General Supervision over local pertaining mainly to the President, the appointing
governments and autonomous regional power may be exercised by the legislature and by
governments (art 10) the judiciary, as well as the Constitutional
Commissions, over their own respective personnel
V. Power of Appointment (See art 6 sec 16 (last sentence), Article VIII etc.)
Implication. Since appointment to office is an
Definition of Appointment
executive function, the clear implication is that the
Nature of Power of Appointment
legislature may not usurp such function.
Classification of Appointment
The legislature may create an office and prescribe
Kinds of Presidential Appointment
the qualifications of the person who may hold the
Scope of Appointing Power
office, but it may neither specify who shall be
Appointments needing Confirmation of CA
appointed to such office nor actually appoint him.291
Officials Who are to be Appointed by the President
Steps in the Appointing Process
2. Non-delegability.
Appointment of Officers Lower in Rank
Limitations on the President’s Appointing power Facts: The Minister of Tourism designate petitioner as
general manager of the Philippine Tourism Authority.
Power of Removal When a new Secretary of Tourism was appointed, the
President designated [him] as a general manager of
Section 16. The President shall nominate and, with the the PTA on the ground that the designation of
consent of the Commission on Appointments, appoint petitioner was invalid since it is not made by the
the heads of the executive departments, ambassadors, President as provided for in PD 564. Petitioner claimed
other public ministers and consuls, or officers of the that his removal was without just cause.
armed forces from the rank of colonel or naval captain, Held: The appointment or designation of petitioner by
and other officers whose appointments are vested in the Minister of Tourism is invalid. It involves the
him in this Constitution. He shall also appoint all other exercise of discretion, which cannot be delegated.
officers of the Government whose appointments are Even if it be assumed that the power could be
not otherwise provided for by law, and those whom he exercised by the Minister of Tourism, it could be
may be authorized by law to appoint. The Congress recalled by the President, for the designation was
may, by law, vest the appointment of other officers provisional.292 (Binamira v. Garrucho)
lower in rank in the President alone, in the courts, or in
the heads of departments, agencies, commissions, or 3. Necessity of Discretion
boards.
The President shall have the power to make
Discretion is an indispensable part in the exercise
appointments during the recess of the Congress, of power of appointment. Congress may not,
whether voluntary or compulsory, but such therefore, enact a statute which would deprive the
appointments shall be effective only until disapproval President of the full use of his discretion in the
by the Commission on Appointments or until the next nomination and appointment of persons to any
adjournment of the Congress. public office. Thus it has been held that a statute

A. Definition of Appointment 289


Cruz, Philippine Political Law, p. 189 (1995 ed).
290
Bernas Commentary, p 839 (2003 ed).
Definition of Appointment. Appointment is the 291
selection, by the authority vested with the power, of Bernas Primer at 305 (2006 ed.)
292
Jacinto Jimenez, Political Law Compendium, p.313 (2006 ed.)

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unlawfully limits executive discretion in Permanent appointments are those extended to


appointments when it provides for the drawing of persons possessing eligibility and are thus
lots as a means to determine the districts to which protected by the constitutional guarantee of
judges of first instance should be assigned by the security of tenure. 298
Chief Executive.293 Congress may not limit the
President’s choice to one because it will be an 2. Temporary (2003 Bar Question)
encroachment on the Prerogative of the Temporary appointments are given to persons
President.294 without such eligibility, revocable at will and without
the necessity of just cause or a valid
Appointment is essentially a discretionary power investigation299; made on the understanding that
and must be performed by the officer in which it is the appointing power has not yet decided on a
vested according to his best lights, the only permanent appointee and that the temporary
condition being that the appointee, if issued a appointee may be replaced at any time a
permanent appointment, should possess the permanent choice is made.
minimum qualification requirements, including the
Civil Service eligibility prescribed by law for the Not subject to CA confirmation. A temporary
position. This discretion also includes the appointment and a designation are not subject
determination of the nature or character of the to confirmation by the Commission on
appointment, i.e., whether the appointment is Appointments. Such confirmation, if given
temporary or permanent.295 erroneously, will not make the incumbent a
permanent appointee. (Valencia v. Peralta)
The power to appoint includes the power to decide
who among various choices is best qualified 3. Regular
provided that the person chosen has the A regular appointment is one made by the
qualification provided by law.296 Even the next-in- President while Congress is in session; takes effect
rank rule of the Civil Service Code cannot be read only after confirmation by the Commission on
as binding the appointing authority to choose the Appointments, and once approved, continues until
first in the order of rank when two or more possess the end of the term of the appointee.
the requisite qualifications.297
4. Ad Interim (1991, 1994 Bar Question)
Q: The Revised Administrative Code of 1987 An ad interim appointment is one made by the
provides, “All provincial and city prosecutors President while Congress is not in session; takes
and their assistants shall be appointed by the effect immediately, but ceases to be valid if
President upon the recommendation of the disapproved by the Commission on Appointments
Secretary.” Is the absence of recommendation or upon the next adjournment of Congress. In the
of the Secretary of Justice to the President latter case, the ad interim appointment is deemed
fatal to the appointment of a prosecutor? “by-passed” through inaction.
A: Appointment calls for discretion on the part The ad interim appointment is intended to prevent
of the appointing authority. The power to interruptions in vital government services that
appoint prosecutors is given to the President. would otherwise result form prolonged vacancies in
The Secretary of Justice is under the control of government offices.
the President. Hence, the law must be read
simply as allowing the Secretary of Justice to Ad interim appointment is a permanent
advice the President. (Bermudez v. Secretary, appointment. It is a permanent
1999) appointment because it takes effect
immediately and can no longer be withdrawn
C. Classification of Appointment (1994 Bar Question) by the President once the appointee
1. Permanent qualified into office. The fact that it is subject
2. Temporary to confirmation by the Commission on
3. Regular Appointments does not alter its permanent
4. Ad Interim character. (Matibag v. Benipayo, 2002)
1. Permanent (2003 Bar Question) Ad interim appointed, how terminated.
1. Disapproval of the appointment by
293
the Commission on Appointments;
Sinco, Philippine Political Law, p 272 (1954ed). 2. Adjournment by Congress without the
294
Flores v. Drilon, 223 SCRA 568. CA acting on the appointment.
295
Antonio B. Nachura, Outline/Reviewer in Political Law 274
(2006 ed.) 298
296
Bernas Primer at 305 (2006 ed.) Cruz, Philippine Political Law, p. 190 (1995 ed).
297 299
Bernas Commentary, p 840 (2003 ed). Cruz, Philippine Political Law, p. 190 (1995 ed).

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There is no dispute that when the abused, they can also be a way of circumventing
Commission on Appointments the need for confirmation by the Commission on
disapproves an ad interim appointment, Appointments.
the appointee can no longer be extended However, we find no abuse in the present case.
a new appointment, inasmuch as the The absence of abuse is apparent from President
approval is a final decision of the Arroyo’s issuance of ad interim appointments to
Commission in the exercise of its respondents immediately upon the recess of
checking power on the appointing Congress, way before the lapse of one year.
authority of the President. Such (Pimentel v. Ermita, 2005)
disapproval is final and binding on both
the appointee and appointing power. D. Kinds of Presidential Appointment
But when an ad interim appointment is by- 1. Appointments made by an Acting President
passed because of lack of time or failure (Section 14)
of the Commission on Appointments to 2. Appointments made by the President within
organize, there is no final decision by the two months before the next presidential
Commission to give or withhold its elections and up to the end of his term.
consent to the appointment. Absent such (Section 15)
decision, the President is free to renew 3. Regular Appointments (Section 16)
the ad interim appointment. (Matibag v. 4. Recess or Ad interim Appointments (Section
Benipayo) 13)

Q: What happens if a special session is called E. Scope of the Power to Appoint


and that session continues until the day before
the start of the regular session? Do Officials to be Appointed by the President
appointments given prior to the start of the
special session lapse upon the end of the
1. Those officials whose appointments are vested
special session or may they continue into the in him by the Constitution. (See Section 16, 1st
regular session? sentence)
A: Guevara v. Inocente again says that there • Heads of executive
must be a “constructive recess” between the departments
sessions and thus appointments not acted • Ambassadors, other public
upon during the special session lapse before ministers and consuls
the start of the regular session.300 • Officers of the armed forces
from rank of colonel or naval captain
Difference between an ad interim appointment • Article VIII, Section 9 provides that
and an appointment in an acting capacity. the President appoints member of the
1. The former refers only to positions which need SC and judges of lower courts
confirmation by the CA while the latter is also • The President also appoints
given to those which do not need confirmation. members of JBC, chairmen and
2. The former may be given only when Congress members of the constitutional
is not in session whereas the latter may be commissions (art 9,B, Sec 1(2); C,
given even when Congress is in session. Section 1(2)), the Ombudsman and
his deputies (art 11, sec 9).
Acting Capacity. The essence of an appointment • Appointment of Sectoral
in an acting capacity is its temporary nature. In Representatives (art 18 sec 7)
case of a vacancy in an office occupied by an alter (Quintos-Deles v. Commission on
ego of the President, such as the Office of Appointments)
Department Secretary, the President must
necessarily appoint the alter ego of her choice as 2. Those whom he may be authorized by law
Acting Secretary before the permanent appointee (Section 16, 2nd sentence)
of her choice could assume office. 3. Any other officers of the government whose
Congress, through law, cannot impose on the appointments are not otherwise provided by
President the obligation to appoint automatically law (Constitution or statutes). (Section 16, 2nd
the undersecretary as her temporary alter ego. “An sentence)
alter ego, whether temporary or permanent, holds
a position of great trust and confidence. Congress, Significance of enumeration in Section 16, 1st
in the guise of prescribing qualifications to an sentence. The enumeration means that Congress
office, cannot impose on the President who her may not give to any other officer the power to
alter ego should be.”Acting appointments are a appoint the above enumerated officers.301
way of temporarily filling important offices, but if
300 301
Bernas Primer at 306 (2006 ed.)

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F. Appointments needing the Confirmation of CA G. Steps in the Appointing Process (where COA
CA Confirmation confirmation is needed)
Exclusive List 1. Nomination by the President
2. Confirmation of the Commission on Appointments
1. What appointments need confirmation by the 3. Issuance of the Commission
Commission on Appointments? (1999 Bar Q)
Those enumerated in the 1st sentence of Section Acceptance. An appointment is deemed complete
16: only upon its acceptance. Pending such
1. Heads of executive departments acceptance, the appointment may still be
2. Ambassadors, other public ministers withdrawn. (Lacson v. Romero)
and consuls Appointment to a public office cannot be forced
3. Officers of the armed forces from upon any citizen except for purposes of defense of
rank of colonel or naval captain the State under Article II Section 4.
4. Those other officers whose
H. Appointment of Officers Lower in Rank
appointments are vested in him in the
Constitution. (Sarmiento v. Mison) (Note:
Although the power to appoint Justices, Section 16 (3rd sentence of first paragraph)
The Congress may, by law, vest the appointment of
judges, Ombudsman and his deputies is
other officers lower in rank in the President alone, in
vested in the President, such the courts, or in the heads of departments, agencies,
appointments do not need confirmation commissions, or boards.
by the Commission on Appointments)
Significance of the phrase “the President
Why from rank of colonel. The provision alone”. Alone means to the exclusion of the courts,
hopefully will have the effect of strengthening the heads of departments, agencies, commissions
civilian supremacy over the military302 To some or boards. 304
extent, the decision of the Commission was
influenced by the observation that coups are Appointing authority may also be given to other
generally led by colonels.303 officials. Thus Section 16 says: “The Congress
may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts,
Military officers. The clause “officers of the or in the heads of departments, agencies,
armed forces from the rank of colonel or naval commissions, or boards.” In Rufino v Endriga305
captain” refers to military officers alone. interpreted this to mean that, when the authority is
Hence, promotion and appointment of officers given to collegial bodies, it is to the chairman that
of Philippine Coast Guard which is under the the authority is given. But he can appoint only
DOTC (and not under the AFP), do not need officers “lower in rank,” and not officers equal in
the confirmation of Commission on rank to him. Thus a Chairman may not appoint a
Appointments. (Soriano v. Lista, 2003) Also, fellow member of a Board.
promotion of senior officers of the PNP is not
subject to confirmation of CA. PNP are not I. Limitations on the President’s Appointing Power
members of the AFP. (Manalo v. Sistoza,
1999)
Section 14. Appointments extended by an Acting
President shall remain effective, unless revoked by the
Chairman of CHR. The appointment of the elected President within ninety days from his
Chairman of the Commission on Human assumption or reassumption of office.
Rights is not provided for in the Constitution or
in the law. Thus, there is no necessity for such
Section 15. Two months immediately before the next
appointment to be passed upon by the
presidential elections and up to the end of his term, a
Commission on Appointments. (Bautista v. President or Acting President shall not make
Salonga) appointments, except temporary appointments to
executive positions when continued vacancies therein
2. Exclusive list will prejudice public service or endanger public safety.
The Congress cannot by law require the
confirmation of appointments of government Special Limitations
officials other than those enumerated in the first
sentence of Section 16 of Article VII. (Calderon v.
Carale) 304
Bernas Commentary, p 847 (2003 ed).; The earlier view of Fr.
Bernas confirmed by Sarmiento v. Mison, was that the retention of
302
Bernas Commentary, p 844 (2003 ed). the phrase “President alone” was an oversight.
303 305
II RECORD 394-395. G.R. No. 139554, July 21, 2006.

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1. (Anti-Nepotism Provision) The President same time frames provided therein unless
may not appoint his spouse and relatives by prohibited by Section 15 of Article VII.
consanguinity or affinity within the fourth civil While the filing up of vacancies in the
degree as Members of the Constitutional judiciary is undoubtedly in the public
Commission, as Ombudsman, or as interest, there is no showing in this case of
Secretaries, Undersecretaries, chairmen or any compelling reason to justify the making
heads of Bureaus or offices, including of the appointments during the period of the
government owned-or-controlled corporations. ban. (In Re Appointment of Mateo
(Section 13) Valenzuela, 1998)
2. Appointments extended by an acting President New Doctrine: The prohibition under Article
shall remain effective unless revoked by the VII, Section 15 of the Constitution against
elected President within 90 days form his presidential appointments immediately
assumption of office. (Section 14) before the next presidential elections and up
3. (Midnight Appointments)Two months to the end of the term of the President does
immediately before the next presidential not apply to vacancies in the Supreme
elections and up to the end of his term, a Court. (De Castro v. JBC, March 17, 2010)
President or acting President shall not make
appointments except for temporary
appointments to executive positions when Other Limitations:
continued vacancies therein will prejudice 1. The presidential power of appointment may
public service or endanger public safety. also be limited by Congress through its power
(Section 15) to prescribe qualifications for public office.
4. The President shall have the power to make 2. The judiciary may annul an appointment made
appointments during the recess of the by the President if the appointee is not
Congress, whether voluntary or compulsory, qualified or has not been validly confirmed.307
but such appointments shall be effective only
until disapproval by the CA or until the next J. Power of Removal
adjournment of Congress. (Section 16 par. 2)
The President possesses the power of removal by
Provision applies only to presidential implication from other powers expressly vested in
appointments. The provision applies only to him.
presidential appointments. There is no law 1. It is implied from his power to appoint
that prohibits local executive officials from 2. Being executive in nature, it is implied
making appointments during the last days of from the constitutional provision vesting
their tenure. (De Rama v. CA) the executive power in the President.
3. It may be implied from his function to take
Old Doctrine: [Section 15] applies in the care that laws be properly executed; for
appointments in the Judiciary. Two without it, his orders for law enforcement
months immediately before the next might not be effectively carried out.
presidential elections and up to the end of 4. The power may be implied fro the
his term, a President or Acting President
President’s control over the administrative
shall not make appointments, except
departments, bureaus, and offices of the
temporary appointments to executive
government. Without the power to
positions when continued vacancies therein
remove, it would not be always possible
will prejudice public service or endanger
for the President to exercise his power of
public safety. Since the exception applies
control.308
only to executive positions, the prohibition
covers appointments to the judiciary.306
As a general rule, the power of removal may be
During this period [2 months immediately
implied from the power of appointment.309 However,
before the next presidential elections…], the
the President cannot remove officials appointed by
President is neither required to make
him where the Constitution prescribes certain
appointments to the courts nor allowed to do
so.
Section 4(1) and 9 of Article VIII simply 307
Cruz, Philippine Political Law, p. 195 (1995 ed).
mean that the President is required by law to 308
Sinco, Philippine Political Law, p 275 (1954ed).; But See Ang-
fill up vacancies in the courts within the
Angco v. Castillo, “The power of control is not the source of
the Executive’s disciplinary power over the person of his
subordinates. Rather, his disciplinary power flows from his
306 power to appoint.” Bernas Primer at 313 (2006 ed).
In re: Appointment of Valenzuela, AM 98-0501 SC, November 9,
309
1998. Cruz, Philippine Political Law, p. 196 (1995 ed).

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methods for separation of such officers from public Control is a stronger power than mere
service, e.g., Chairmen and Commissioners of supervision.314
Constitutional Commissions who can be removed
only by impeachment, or judges who are subject to Supervision. Supervision means overseeing or the
the disciplinary authority of the Supreme Court. In power or authority of an officer to see that
the cases where the power of removal is lodged in subordinate officer performs their duties. If the
the President, the same may be exercised only for latter fail or neglect to fulfill them, then the former
cause as may be provided by law, and in may take such action or steps as prescribed by law
accordance with the prescribed administrative to make them perform these duties.315
procedure.
Bernas Primer: Power of Supervision is the power
Members of the career service. Members of the of a superior officer to “ensure that the laws are
career service of the Civil Service who are faithfully executed” by inferiors. The power of
appointed by the President may be directly supervision does not include the power of control;
disciplined by him. (Villaluz v. Zaldivar) provided but the power of control necessarily includes the
that the same is for cause and in accordance with power of supervision.316
the procedure prescribed by law.
Control Supervision
Members of the Cabinet. Members of the Cabinet An officer in control Supervision does not
and such officers whose continuity in office lays down the rules in cover the authority to
depends upon the President may be replaced at the doing of an act. lay down the rules.
any time. (Legally speaking, their separation is Supervisor or
effected not by removal but by expiration of superintendent merely
term.310) (See Alajar v. CA) sees to it that the rules
are followed.
VI. Power of Control If rules are not If the rules are not
followed, he may, in observed, he may order
Control his discretion, order the work done or re-
Control v. Supervision the act undone, re- done but only to
The President and Power of Control done by his conform to the
Alter ego Principle; Doctrine of Qualified Political subordinate or he prescribed rules. He
Agency may decide to do it may not prescribe his
Supervision over LGUs himself. own manner for the
The Take-Care Clause doing of the act. He has
no judgment on this
Section 17. The President shall have control of all the matter except to see to
executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
it that the rules are
followed. (Drilon v. Lim)

A. Control C. The President and Power of Control


Power of Control of the President
Control is the power of an officer to alter or modify Scope
or nullify or set aside what a subordinate officer Section 17 is self-executing
had done in the performance of his duties and to Not a Source of Disciplinary Powers
substitute the judgment of the former for that of the
latter.311 1. Power of Control of the President
[Power of Control] has been given to the President
It includes the authority to order the doing of an act over all executive officers from Cabinet members to
by a subordinate or to undo such act or to assume the lowliest clerk. This is an element of the
a power directly vested in him by law.312 The power presidential system where the President is “the
of control necessarily includes the power of Executive of the government.”317
supervision.313
The power of control vested in the President by the
B. Control v. Supervision Constitution makes for a strongly centralized
administrative system. It reinforces further his

310 314
Cruz, Philippine Political Law, p. 197 (1995 ed). Cruz, Philippine Political Law, p. 198 (1995 ed).
311
Mondano v. Silvosa 315
Mondano v. Silvosa
312 316
Cruz, Philippine Political Law, p. 198 (1995 ed). Bernas Primer at 313 (2006 ed.)
313 317
Bernas Primer at 313 (2006 ed.) Bernas Primer at 310 (2006 ed.)

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position as the executive of the government, President to reorganize the executive branch,
enabling him to comply more effectively with his which may include such abolition, is permissible
constitutional duty to enforce laws. The power to under present laws.322
prepare the budget of the government strengthens
the President’s position as administrative head.318 3. Section 17 is a self-executing provision
The President derives power of control directly
2. Scope from the Constitution and not from any
a. The President shall have control of all the implementing legislation. Such a law is in fact
executive departments, bureaus, and offices. unnecessary and will even be invalid if it limits the
(Section 17) exercise of his power or withdraws it altogether
from the President.323
b. The President has control over officers of
GOCCs. (NAMARCO v. Arca) (Bernas: It is 4. Power of Control is not the source of the
submitted that such power over government- Executive’s disciplinary power
owned corporation comes not from the The power of control is not the source of the
Constitution but from statute. Hence, it may also Executive’s disciplinary power over the person of
be taken away by statute.) his subordinates. Rather, his disciplinary power
flows from his power to appoint. (Ang-Angco v.
c. Control over what? The power of control is Castillo)324
exercisable by the President over the acts of his
subordinates and not necessarily over the D. Alter Ego Principle; Doctrine of Qualified Political
subordinate himself. (Ang-angco v. Castillo) It Agency
can be said that the while the Executive has Doctrine
control over the “judgment” or “discretion” of his When Doctrine not Applicable
subordinates, it is the legislature which has Reason for the Doctrine
control over their “person.”319 Power of Control exercised by Department Heads
Power of Control exercised by ES
d. Theoretically, the President has full control of Abakada Case
all the members of the Cabinet. He may appoint
them as he sees fit, shuffle them at pleasure, 1. Doctrine
and replace them in his discretion without any The doctrine recognizes the establishment of a
legal inhibition whatever.320 single executive. The doctrine postulates that, “All
executive and administrative organizations are
e. The President may exercise powers conferred adjuncts of the Executive Department, the heads of
by law upon Cabinet members or other the various executive departments are assistants
subordinate executive officers. (City of Iligan v. and agents of the Chief Executive, and, (except in
Director of Lands) Even where the law provides cases where the Chief Executive is required by the
that the decision of the Director of Lands on Constitution or law to act in person or the
questions of fact shall be conclusive when exigencies of the situation demand that he act
affirmed by the Sec of DENR, the same may, on personally,) the multifarious executive and
appeal to the President, be reviewed and administrative functions of the Chief Executive are
reversed by the Executive Secretary. (Lacson- performed by and through the executive
Magallanes v. Pano) departments, and the acts of the secretaries of
such departments, performed and promulgated
f. It has been held, moreover, that the express in the regular course of business, are, unless
grant of the power of control to the President disapproved or reprobated by the Chief
justifies an executive action to carry out the Executive presumptively, the acts of the Chief
reorganization of an executive office under a Executive” (Villena v. Sec. of Interior)
broad authority of law.321 A reorganization can
involve the reduction of personnel, consolidation Put simply, when a department secretary makes a
of offices, or even abolition of positions by decision in the course of performing his or her
reason of economy or redundancy of functions. official duties, the decision, whether honorable or
While the power to abolish an office is generally disgraceful, is presumptively the decision of the
lodged with the legislature, the authority of the President, unless he quickly and clearly disowns
it.325
318
Sinco, Philippine Political Law, p 243 (1954ed).
319
Bernas Primer at 313 (2006 ed.)
320 322
Cruz, Philippine Political Law, p. 199 (1995 ed). Malaria Employees v. Executive Secretary, G.R. No.
321 160093, July 31, 2007.
Anak Mindanao v. Executive Sec, G.R. No. 166052 , August 29, 323
2007; Tondo Medical Center Employees v. CA. G.R. No. 167324, Cruz, Philippine Political Law, p. 199 (1995 ed).
324
July 17, 2007; Bernas Primer at 313 (2006 ed.)

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2. When Doctrine not Applicable President cannot alter or modify or nullify, or set
Qualified political agency does NOT apply if the aside the findings of the Secretary of Finance and
President is required to act in person by law or by to substitute the judgment of the former to the
the Constitution. Example: The power to grant latter.329 (Abakada Guro v. ES, 2005)
pardons must be exercised personally by the
President. E. Power of Supervision over LGUs

3. Reason for the Doctrine The power of the President over local governments
Since the executive is a busy man, he is not is only one of general supervision.330 (See Article X,
expected to exercise the totality of his power of Sections 4 and 16)
control all the time. He is not expected to exercise
all his powers in person. He is expected to The President can only interfere in the affairs and
delegate some of them to men of his confidence, activities of a local government unit if he finds that
particularly to members of his Cabinet. Thus, out of the latter had acted contrary to law. (Judge Dadole
this practical necessity has risen what has come v. COA)
to be referred to as “doctrine of qualified political
agency.”326 A law (RA 7160 Sec 187) which authorizes the
Secretary of Justice to review the constitutionality
4. Power of Control exercised by Department of legality of a tax ordinance—and if warranted, to
Heads in the President’s Behalf revoke it on either or both grounds—is valid, and
The President’s power of control means his power does not confer the power of control over local
to reverse the judgment of an inferior officer. It government units in the Secretary of Justice, as
may also be exercised in his behalf by Department even if the latter can set aside a tax ordinance, he
Heads. Thus the Secretary of Justice may reverse cannot substitute his own judgment for that of the
the judgment of a prosecutor and direct him to local government unit. (Drilon v. Lim)
withdraw an information already filed. Such action
is not directly reviewable by a court. One who F. Faithful Execution Clause; Take Care Clause
disagrees, however, may should appeal to the
Office of the President in order to exhaust The power to take care that the laws be faithfully
administrative remedies prior to bring it to court.327 executed makes the President a dominant figure in
the administration of the government.331
5. Power of Control exercised by the ES
The Executive Secretary when acting “by authority The President shall ensure that the laws be
of the President” may reverse the decision of faithfully executed. (Section 17 2nd sentence) The
another department secretary. (Lacson-Magallanes law he is supposed to enforce includes the
v. Pano) 328 Constitution, statutes, judicial decisions,
administrative rules and regulations and municipal
6. Abakada Case ordinances, as well as treaties entered into by
government.332
Petitioners argue that the EVAT law is
unconstitutional, as it constitutes abandonment by
This power of the President is not limited to the
Congress of its exclusive authority to fix the rate of
enforcement of acts of Congress according to their
taxes and nullififed the President’s power of control
express terms. The President’s power includes “the
by mandating the fixing of the tax rate by the
rights and obligations growing out of the
President upon the recommendation of the
Constitution itself, international relations, and all
Secretary of Finance. The SC ruled that the
the protection implied by the nature of the
Secretary of Finance can act as agent of the
government under the Constitution.333
Legislative Department to determine and declare
the event upon which its expressed will is to take
The reverse side of the power to execute the law is
effect. His personality in such instance is in reality
the duty to carry it out. The President cannot refuse
but a projection of that of Congress. Thus, being
to carry out a law for the simple reason that in his
the agent of Congress and not of the President, the

325
Fr. Bernas in his Inquirer column, “A Golden Opportunity for
GMA”. 329
San Beda College of Law, 2008 Centralized Bar Operations,
http://opinion.inquirer.net/inquireropinion/columns/view_article.php Political Law Reviewer, p. 29.
?article_id=107245 330
326 Bernas Primer at 313 (2006 ed.)
Bernas Commentary, p 857 (2003 ed). 331
327 Cruz, Philippine Political Law, p. 203 (1995 ed).
Orosa v. Roa, GR 14047, July 14, 2006; DENR v. DENR 332
Employees, G.R. No. 149724. August 19, 2003 Cruz, Philippine Political Law, p. 203 (1995 ed).
328 333
See the case of Neri v. Senate Committee on the authority of ES In Re Neagle, 135 US 1 (1890). Bernas Commentary, p 863
to invoke Executive Immunity. -asm (2003 ed).

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judgment it will not be beneficial to the people.334 agencies over where civil courts are able to function,
As the Supreme Court pointed out, “after all we still nor automatically suspend the privilege of the writ.
live under a rule of law.” The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
It has been suggested that the President is not
During the suspension of the privilege of the writ, any
under obligation to enforce a law which in his belief person thus arrested or detained shall be judicially
is unconstitutional because it would create no charged within three days, otherwise he shall be
rights and confer no duties being totally null and released.
void. The better view is that it is not for him to
determine the validity of a law since this is a A. The Military Power (1987 Bar Question)
question exclusively addressed to the judiciary.
Hence, until and unless a law is declared Section 18 bolsters the principle announced in
unconstitutional, the President has a duty to Article II, Section 3 that “civilian authority is at all
execute it regardless of his doubts on its validity. A times, supreme over the military.” By making the
contrary opinion would allow him not only to negate President the commander-in-chief of all the armed
the will of legislature but also to encroach upon the forces, the Constitution lessens the danger of a
prerogatives of the judiciary.335 military take-over of the government in violation of
its republican nature.336
VII. Military Power/Emergency Powers
Section 18 grants the President, as Commander-in-
The Military Power Chief, a sequence of graduated powers. From the
Limitations on Military Power most to the least benign, these are: the calling out
Commander-in-Chief Clause/ Calling Out Power power, the power to suspend the privilege of the
Suspension of the Privilege writ of habeas corpus, and the power to declare
Martial Law martial law. (Sanlakas v. Executive Secretary)

Section 18. The President shall be the Commander-in- The power of the sword makes the President the
Chief of all armed forces of the Philippines and most important figure in the country in times of war
whenever it becomes necessary, he may call out such or other similar emergency.337 It is because the
armed forces to prevent or suppress lawless violence, sword must be wielded with courage and resolution
invasion or rebellion. In case of invasion or rebellion,
that the President is given vast powers in the
when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the making and carrying out of military decisions.338
writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours The military power enables the President to:
from the proclamation of martial law or the suspension 1. Command all the armed forces of the
of the privilege of the writ of habeas corpus, the Philippines;
President shall submit a report in person or in writing to
the Congress. The Congress, voting jointly, by a vote
2. Suspend the privilege of the writ of
of at least a majority of all its Members in regular or habeas corpus
special session, may revoke such proclamation or 3. Declare martial law
suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the B. Limitations on Military Power339 (1987, 2000 Bar
Congress may, in the same manner, extend such Question)
proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion 1. He may call out the armed forces to prevent or
shall persist and public safety requires it. suppress lawless violence, invasion or rebellion
The Congress, if not in session, shall, within twenty- only.
four hours following such proclamation or suspension,
convene in accordance with its rules without need of a 2. The grounds for the suspension of the
call. privilege of the writ of habeas corpus and the
The Supreme Court may review, in an appropriate proclamation of martial law are now limited only to
proceeding filed by any citizen, the sufficiency of the invasion or rebellion.
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
3. The duration of such suspension or
thereof, and must promulgate its decision thereon proclamation shall not exceed sixty days, following
within thirty days from its filing. which it shall be automatically lifted.
A state of martial law does not suspend the operation 4. Within forty-eight hours after such suspension
of the Constitution, nor supplant the functioning of the or proclamation, the President shall personally or in
civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and 336
Cruz, Philippine Political Law, p. 204 (1995 ed).
337
Cruz, Philippine Political Law, p. 205 (1995 ed).
334 338
Bernas Commentary, p 863 (2003 ed) Cruz, Philippine Political Law, p. 205 (1995 ed).
335 339
Cruz, Philippine Political Law, p. 203 (1995 ed). Cruz, Philippine Political Law, p. 213 (1995 ed).

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writing report his action to the Congress. If not in ignore her command can be subjected to court
session, Congress must convene within 24 hours. martial proceeding. Thus, for instance, the
5. The Congress may then, by majority votes of President as Commander in Chief may prevent a
all its members voting jointly, revoke his action. member of the armed forces from testifying before
The revocation may not set aside by the President. a legislative inquiry. A military officer who disobeys
6. By the same vote and in the same manner, the the President’s directive may be made to answer
Congress may, upon initiative of the President, before a court martial. Since, however, Congress
extend his suspension or proclamation for a period has the power to conduct legislative hearings,
to be determined by the Congress if the invasion or Congress may make use of remedies under the
rebellion shall continue and the public safety law to compel attendance. Any military official
requires extension. whom Congress summons to testify before it may
be compelled to do so by the President. If the
7. The action of the President and the Congress President is not so inclined, the President may be
shall be subject to review by the Supreme Court commanded by judicial order to compel the
which shall have the authority to determine the attendance of the military officer. Final judicial
sufficiency of the factual basis of such action. This orders have the force of the law of the land which
matter is no longer considered a political question the President has the duty to faithfully execute.341
and may be raised in an appropriate proceeding by
any citizen. Moreover, the Supreme Court must 2. Civilian Supremacy (Bernasian view)
decide the challenge within thirty days from the
Is the President a member of the armed
time it is filed.
forces?
8. Martial law does not automatically suspend the
Dichotomy of views:
privilege of the writ of habeas corpus or the
Sinco: The President is not only a civil official.
operation of the Constitution. The civil courts and
As commander-in-chief of all armed forces, the
the legislative bodies shall remain open. Military
President is also a military officer. This dual role
courts and agencies are not conferred jurisdiction
given by the Constitution to the President is
over civilians where the civil courts are functioning.
intended to insure that the civilian controls the
9. The suspension of the privilege of the writ of military.342
habeas corpus shall apply only to persons facing Bernas: The weight of authority favors the
charges of rebellion or offenses inherent in or position that the President is not a member of the
directly connected with invasion. armed forces but remains a civilian.
10. Any person arrested for such offenses must be The President’s duties as Commander-in-Chief
judicially charged therewith within three days. represent only a part of the organic duties
Otherwise shall be released. imposed upon him. All his other functions are
clearly civil in nature.
C. Commander-in-Chief Clause; Calling Out Power • He is elected as the highest civilian officer
Power over the military • His compensation is received for his
Civilian Supremacy services rendered as President of the
Calling-out Power nation, not for the individual part of his
duties; no portion of its is paid from sums
The President shall be the Commander-in-Chief of all appropriated for the military or naval forces.
armed forces of the Philippines and whenever it • He is not subject to court martial or other
becomes necessary, he may call out such armed forces military discipline
to prevent or suppress lawless violence, invasion or • The Constitution does not require that the
rebellion. (Section 18, 1st sentence) President must be possessed of military
training and talents.
1. Power over the Military. This position in fact, is the only one compatible
The President has absolute authority over all with Article II, Section 3, which says” “Civilian
members of the armed forces. (Gudani v. Senga, authority is at all times, supreme over the
2006) He has control and direction over them. As military.” The net effect thus of Article II, Section3
Commander-in-chief, he is authorized to direct the when read with Article VII, Section 18 is that a
movements of the naval and the military forces civilian President holds supreme military
placed by law at his command, and to employ them authority and is the ceremonial, legal, and
in manner he may deem most effectual to harass administrative head of the armed forces.343
and conquer and subdue the enemy.340

Since the President is commander-in-chief of the


Armed Forces she can demand obedience from
341
military officers. Military officers who disobey or Gudani v. Senga, G.R. No. 170165, April 15. 2006.
342
Sinco, Philippine Political Law, p 261 (1954ed).
340 343
Bernas Commentary, p 866 (2003 ed) citing Fleming v. Page. Bernas Commentary, p 865 (2003 ed).

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3. Calling Out Power under Section 18 (2006 Bar 3. Reproving statements of the communist
Question) leaders
4. Minutes of the Intelligence Report and
Most Benign power of Section 18 Security Group of the Philippine Army
Use of Calling Out Power Vests No Constitutional showing the growing alliance between the
or Statutory Powers NPA and the military.
Declaration of State of Rebellion Did PGMA gravely abuse her discretion in
Declaration of State of National Emergency calling out the AFP?
Calling out Power and Judicial Review NO. Section 18 grants the President the calling
out power. The only criterion for the exercise is
a. Most Benign power of Section 18. The that “whenever it becomes necessary”, the
President may call the armed forces “to prevent or
diminution of any constitutional rights through the suppress lawless violence, invasion or rebellion”
suspension of the privilege of the writ or the These conditions are present in this case.
declaration of martial law is deemed as “strong Considering the circumstances then prevailing
medicine” to be used sparingly and only as a last PGMA found it necessary to issue PP1017. Owing
resort, and for as long as only truly necessary. to her Office’s vast intelligence network, she is in
Thus, the invocation of the “calling out” power the best position to determine the actual condition
stands as a balanced means of enabling a in her country. PP1017 is constitutional insofar
heightened alertness in dealing with the armed as it constitutes a call by PGMA on the AFP to
prevent or suppress lawless violence.
threat, but without having to suspend any
constitutional or statutory rights or cause the
e. President’s action in calling out the armed
creation of any new obligations.
forces, and judicial review. It may be gathered
from the broad grant of power that the actual use to
b. Vests no new constitutional or statutory
which the President puts the armed forces, is
powers. For the utilization of the “calling out”
unlike the suspension of the privilege of writ of
power alone cannot vest unto the President any
habeas corpus, not subject to judicial review.344
new constitutional or statutory powers, such as the
enactment of new laws. At most, it can only renew
But, wait! While the Court considered the
emphasis on the duty of the President to execute
President’s “calling-out” power as a discretionary
already existing laws without extending a
power solely vested in his wisdom and that it
corresponding mandate to proceed extra-
cannot be called upon to overrule the President’s
constitutionally or extra-legally. Indeed, the “calling
wisdom or substitute its own, it stressed that “this
out” power does not authorize the President or the
does not prevent an examination of whether such
members of the Armed Forces to break the law.
power was exercised within permissible
constitutional limits or whether it was exercised in a
c. Declaration of State of Rebellion. Declaration
manner constituting grave abuse of discretion. (IBP
of the state of rebellion is within the calling-out
v. Zamora) Judicial inquiry can go no further than
power of the President. When the President
to satisfy the Court not that the President’s decision
declares a state of emergency or a state of
is correct, but that “the President did not act
rebellion her action is merely a description of the
arbitrarily.” Thus, the standard is not correctness,
situation as she sees it but it does not give her new
but arbitrariness. It is incumbent upon the petitioner
powers. The declaration cannot diminish or violate
to show that the President’s decision is totally
constitutionally protected rights. (Sanlakas v.
bereft of factual basis” and that if he fails, by way of
Executive Secretary, G.R. No. 159085, February
proof, to support his assertion, then “this Court
3, 2004.)
cannot undertake an independent investigation
beyond the pleadings. (IBP v. Zamora cited in
d. Declaration of a “state of national
David v. Arroyo)
emergency”. The President can validly declare a
state of national emergency even in the absence of
D. Suspension of the Privilege
congressional enactment. (David v. Ermita) (2006
Bar Question) Writ of Habeas Corpus
Privilege of the Writ of Habeas Corpus
PP 1017 case Suspension of the Privilege, Meaning
Facts: On February 24, 2006, President Arroyo General Limitations on the power to Suspend
issued Presidential Proclamation 1017 declaring a To whom Applicable
state of national emergency. The Solicitor General Effect on Applicable Persons
enumerated the following events that lead to the Grounds
issuance of PP1017: Duration
1. Escape of Magdalo group and their Four Ways to Lift the Suspension
audacious threat of the Magdalo D-day Duty of the President
2. The defecations in the Military, particularly in Role of Congress
the Phil. Marines
344
Bernas Commentary, p 866 (2003 ed)

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Role of the Supreme Court


Facts: Claiming they were illegally arrested without
1. Writ of HC any warrant of arrest, petitioners sued several
officers of the AFP for damages. The officers of the
AFP argued that the action was barred since the
The writ. The writ of habeas corpus is a writ suspension of the privilege of the writ of habeas
directed to the person detaining another, corpus precluded judicial inquiry into the legality of
commanding him to produce the body of the their detention.
prisoner at a designated time and place, with the Held: The contention of AFP officers has not merit.
day and cause of his caption and detention, to do, The suspension of the privilege of the writ of habeas
to submit to, and receive whatever the court or corpus does not render valid an otherwise illegal
arrest or detention. What is suspended is merely
judge awarding the writ shall consider in his behalf. the right of individual to seek release from
(Bouvier’s Law Dictionary) (Hence, an essential detention through the writ of habeas corpus.347
requisite for the availability of the writ is actual (Aberca v. Ver, 160 SCRA 590)
deprivation of personal liberty) (Simply put, a writ
of habeas corpus is a writ of liberty) 4. General Limitations on the power to suspend
the privilege
Purpose. The great object of which is the liberation 1. Time limit of 60 days
of those who may be in prison without sufficient 2. Review and possible revocation by Congress
cause.345 3. Review and possible nullification by SC348
To what Habeas Corpus extends. Except as 5. To whom Applicable
otherwise provided by law, the writ of habeas
corpus shall extend to all cases of illegal
The suspension of the privilege of the writ shall
confinement or detention by which any person is
apply only to persons judicially charged for
deprived of his liberty, or by which the rightful
rebellion or offenses inherent in or directly
custody of any person is withheld from the person
connected with invasion.
entitled thereto. (Rule 102, Section 1 or Rules of
COurtt)
6. Effect on Applicable Persons
2. Privilege of the writ of HC
During the suspension of the privilege of the writ,
any person thus arrested or detained shall be
Privilege. It is the right to have an immediate
judicially charged within three days, otherwise he
determination of the legality of the deprivation of
shall be released. (Article VI Section 18)
physical liberty.
The suspension of the privilege of the writ does not
3. Suspension of the privilege.
impair the right to bail. (Article III Section 13)
In case of invasion or rebellion, when the public 7. (Grounds) Factual Bases for Suspending the
safety requires it, [the President] may, for a period Privilege (1997 Bar Question)
not exceeding sixty days, suspend the privilege of
1. In case of invasion or rebellion
the writ of habeas corpus.
2. When the public safety requires it
Suspension of the Privilege, Meaning.
8. Duration.
Suspension of the privilege does not suspend the
writ itself, but only it’s privilege. This means that
when the court receives an application for the writ, Not to exceed sixty days, following which it shall be
and it finds the petition in proper form, it will issue lifted, unless extended by Congress.
the writ as a matter of course, i.e., the court will
issue an order commanding the production before 9. Four Ways to Lift the Suspension
the court of the person allegedly detained, at a time 1. Lifting by the President himself
and place stated in the order, and requiring the true 2. Revocation by Congress
cause of his detention to be shown to the court. If 3. Nullification by the Supreme Court
the return to the writ shows that the person in 4. By operation of law after 60 days
custody was apprehended and detained in areas
where the privilege of the writ has been suspended 10. Duty of the President
or for crimes mentioned in the executive
proclamation, the court will suspend further Within forty-eight hours from the proclamation of
proceedings in the action.346 (1997 Bar Question) martial law or the suspension of the privilege of the

345 347
Moran, Rules of Court, Vol. II, 499. Jacinto Jimenez, Political Law Compendium, 322 (2006 ed.)
346 348
Cruz, Philippine Political Law, p. 210 (1995 ed). Bernas Primer at 318 (2006 ed.)

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writ of habeas corpus, the President shall submit a


report in person or in writing to the Congress. 2. Martial Law, Nature
a. Essentially police power
11. Role of Congress b. Scope of Martial Law: Flexible Concept
a. Congress convenes
b. Congress may either revoke or (with President’s Martial law is essentially police power. This is
initiative) extend borne out of the constitutional text which sets down
“public safety” as the object of the exercise of
Congress convenes. The Congress, if not in martial law. Public safety is the concern of police
session, shall, within twenty-four hours following power.
such proclamation or suspension, convene in
accordance with its rules without need of a call. What is peculiar, however, about martial law as
police power is that, whereas police power is
Congress may revoke. The Congress, voting normally a function of the legislature executed by
jointly, by a vote of at least a majority of all its the civilian executive arm, under martial law, police
Members in regular or special session, may revoke power is exercised by the executive with the aid of
such proclamation or suspension, which revocation the military.
shall not be set aside by the President.
Martial law is a flexible concept. Martial law
depends on two factual bases: (1) the existence of
Congress may extend. Upon the initiative of the invasion or rebellion; and (2) the requirements of
President, the Congress may, in the same manner, public safety.
extend such proclamation or suspension for a Necessity creates the conditions for martial law
period to be determined by the Congress, if the and at the same time limits the scope of martial
invasion or rebellion shall persist and public safety law. Certainly, the necessities created by a state of
requires it. invasion would be different from those created by
rebellion. Necessarily, therefore the degree and
12. Role of Supreme Court kind of vigorous executive action needed to meet
the varying kinds and degrees of emergency could
The Supreme Court may review, in an appropriate not be identical under all conditions. (The common
proceeding filed by any citizen, the sufficiency of denominator of all exercise by an executive officer
the factual basis of the proclamation of martial law of the discretion and judgment normally exercised
or the suspension of the privilege of the writ or the by a legislative or judicial body.)
extension thereof, and must promulgate its
decision thereon within thirty days from its filing. 3. Proclamation of Martial Law
E. Martial Law
In case of invasion or rebellion, when the public
Martial Law, Definition (Under the 1987 Constitution) safety requires it, [the President] may, for a period
Martial Law, Nature not exceeding sixty days, suspend the privilege of
Proclamation of Martial Law the writ of habeas corpus or place the Philippines
General Limits on the Power to Proclaim… or any part thereof under martial law.
Effects of Proclamation of Martial Law
Grounds Q: Is PP 1017 actually a declaration of Martial
Duration law?
Four Ways to Lift the Suspension A: No. It is merely an exercise of PGMA’s
Duty of the President calling-out power for the armed forces to assist
Role of Congress her in preventing or suppressing lawless
Role of the Supreme Court (Open Court Doctrine) violence. It cannot be used to justify act that
only under a valid of declaration of Martial Law
1. Martial Law, Definition. can be done. (David v. [Ermita])

Martial law in its strict sense refers to that law 4. General Limitations on the power to proclaim
which has application when civil authority calls 1. Time limit of 60 days
upon the military arm to aid it in its civil function. 2. Review and possible revocation by Congress
Military arm does not supersede civil authority. 3. Review and possible nullification by SC350
Martial law in the Philippines is imposed by the 5. Effects of Proclamation of Martial Law
Executive as specifically authorized and within the
limits set by the Constitution.349
A State of martial law does not:

349 350
Bernas Commentary, p 870 (2003 ed). Bernas Primer at 318 (2006 ed.)

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1. Suspend the operation of the Constitution such proclamation or suspension, convene in


2. Supplant the functioning of the civil courts or accordance with its rules without need of a call.
legislative assemblies
3. Authorize the conferment of jurisdiction on Congress may revoke. The Congress, voting
military courts and agencies over where civil jointly, by a vote of at least a majority of all its
courts are able to function Members in regular or special session, may revoke
4. Automatically suspend the privilege of the writ. such proclamation or suspension, which revocation
(Section 18) shall not be set aside by the President.

Open Court Doctrine. Civilians cannot be Congress may extend. Upon the initiative of the
tried by military courts if the civil courts are President, the Congress may, in the same manner,
open and functioning. (Olaguer v. Military extend such proclamation or suspension for a
Commission) period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety
The President can: (This is based on UP and Beda requires it.
2008 Bar Reviewers; But see excerpt from Bernas
Commentary) 11. Role of Supreme Court (2006 Bar Question)
1. Legislate
2. Order the arrest of people who obstruct the The Supreme Court may review, in an appropriate
war effort. proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law
Bernas Commentary: The statement that martial law does or the suspension of the privilege of the writ or the
not “supplant the functioning of …legislative assemblies” extension thereof, and must promulgate its
means that ordinary legislation continues to belong to the
decision thereon within thirty days from its filing.
legislative bodies even during martial law. Does this
mean that the martial law administrator is without
power to legislate? VIII. Power of Executive Clemency
A: In actual theater of war, the martial law administrator’s
word is law, within the limits of the Bill of Rights. But Power of Executive Clemency
outside the theater of war, the operative law is ordinary Purpose for the Grant of Power
law. Forms of Executive Clemency
Constitutional Limits on Executive Clemency
6. Grounds; Factual Bases for the Proclamation Pardon
1. In case of invasion or rebellion Amnesty
2. When the public safety requires it Administrative Penalties
Other forms of Executive Clemency
7. Duration
Section 19. Except in cases of impeachment, or as
Not to exceed sixty days, following which it shall be otherwise provided in this Constitution, the President
may grant reprieves, commutations, and pardons, and
lifted, unless extended by Congress. remit fines and forfeitures, after conviction by final
judgment.
8. Four Ways to Lift the Proclamation He shall also have the power to grant amnesty with the
1. Lifting by the President himself concurrence of a majority of all the Members of the
2. Revocation by Congress Congress.
3. Nullification by the Supreme Court
4. By operation of law after 60 days A. Power of Executive Clemency
9. Duty of the President Non-delegable. The power of executive clemency is a
non-delegable power and must be exercised by the
Within forty-eight hours from the proclamation of President personally.351
martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a Clemency is not a function of the judiciary; it is an
report in person or in writing to the Congress. executive function.352 The exercise of the pardoning
power is discretionary in the President and may not be
10. Role of Congress controlled by the legislature or reversed by the courts,
a. Congress convenes save only when it contravenes its limitations.353
b. Congress may either revoke or (with President’s
initiative) extend
351
Congress convenes. The Congress, if not in Bernas Commentary, p 893 (2003 ed).
352
session, shall, within twenty-four hours following Bernas Commentary, p 892 (2003 ed).
353
Cruz, Philippine Political Law, p. 215 (1995 ed).

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B. Purpose for the Grant of Power of Executive 3. Pardon will not restore offices forfeited.356
Clemency
E. Pardon
Ratio: Human fallibility Definition of Pardon
Classification of Pardon
Purpose. That Section 19 gives to the President Scope of Pardon
the power of executive clemency is a tacit Limitations on Exercise
admission that human institutions are imperfect When Completed
and that there are infirmities in the administration of Effect of Pardon
justice. The power therefore exists as an Pardon v. Parole
instrument for correcting these infirmities and for
mitigating whatever harshness might be 1. Pardon
generated by a too strict application of the law. 354 In
a. What is Pardon?
recent years, it has also been used as a bargaining
b. Pardon as an act of grace
chip in efforts to unify various political forces.
c. What does pardon imply?
C. Forms of Executive Clemency (1988 Bar Question)
a. Act of grace which exempts the individual on
1. Reprieves- a postponement of a sentence to whom it is bestowed form the punishment which
a date certain, or a stay in the execution. the law inflicts for the crime he has committed.
2. Commutations- reduction or mitigation of the
penalty. b. Because pardon is an act of grace, no legal
power can compel the executive to give it. It is an
3. Pardons- act of grace which exempts the act of pure generosity of the executive and it is his
individual on whom it is bestowed form the to give or to withdraw before it is completed.357
punishment which the law inflicts for the crime he Congress has no authority to limit the effects of the
has committed. President’s pardon, or to exclude from its scope
4. Remission of fines any class of offenders. Courts may not inquire in to
5. Forfeitures the wisdom or reasonableness of any pardon
6. Amnesty- commonly denotes the ‘general granted by the President.358
pardon to rebels for their treason and other high
political offenses’. c. Pardon implies guilt. A pardon looks to the
future.
D. Limits on Executive Clemency
Constitutional Limits on Executive Clemency: 2. Classification of Pardon
1. It cannot be exercised in cases of 1. Plenary- Extinguishes all the penalties
impeachment imposed upon the offender, including
2. Reprieves, commutations, and pardons, and accessory disabilities.
remission of fines and forfeitures can be given 2. Partial-Does not extinguish all the
only “after conviction by final judgment; penalties.
3. A grant of amnesty must be with the 3. Absolute- One extended without any
concurrence of a “majority of all the Members strings attached.
of Congress”
4. Conditional- One under which the convict
4. No pardon, amnesty, parole, or suspension of is required to comply with certain
sentence for violation of election laws, rules, requirements.
and regulations shall be granted by the
President without the favorable a. Pardonee may reject conditional
recommendation of COMELEC.355 pardon. Where the pardon is conditional,
Other Limitations: the offender has the right to reject the
same since he may feel that the condition
1. A pardon cannot be extended to a person imposed is more onerous than the penalty
convicted of legislative contempt or civil sought to be remitted359
contempt.
2. Pardon cannot also be extended for the
purpose of absolving the pardonee of civil
liability, including judicial costs.
356
354 Cruz, Philippine Political Law, p. 216 (1995 ed).
Bernas Primer at 320 (2006 ed.) Cruz, Philippine Political Law,
357
p. 215 (1995 ed). Bernas Commentary, p 894 (2003 ed).
Bernas Primer at 320 (2006 ed.) 358
Sinco, Philippine Political Law, p 281 (1954ed).
355 359
Bernas Commentary, p 893 (2003 ed). Cruz, Philippine Political Law, p. 217 (1995 ed).

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b. Condition, lawful. It is necessary Other Limitations:


that the condition should not be contrary 1. A pardon cannot be extended to a person
to any provision of law.360 convicted of legislative contempt or civil
contempt.
c. Condition, co-extensive. The 2. Pardon cannot also be extended for the
condition of the pardon shall be co- purpose of absolving the pardonee of civil
extensive with the penalty remitted. liability, including judicial costs.
Hence, if the condition is violated after the
expiration of the remitted penalty, there 3. Pardon will not restore offices forfeited364
can no longer be violation of the or property or interests vested in others in
conditional pardon. consequence of the conviction and
judgment.365
d. When the condition is that the
recipient of the pardon should not violate 5. When Act of Pardon Completed
any of the penal laws, who determines
whether penal laws have been violated?
Conditional: A pardon must be delivered to and
Must the recipient of pardon undergo trial
accepted by the offender before it takes effect.
and be convicted for the new offenses?
The rule that is followed is that the
Reason: The reason for requiring
acceptance of the conditions of the
acceptance of a pardon is the need for
pardon imports the acceptance of the
protecting the welfare of its recipient.
condition that the President will also
The condition may be less acceptable to
determine whether the condition has been
him than the original punishment, and
violated. (Torres v. Gonzales, 152 SCRA
may in fact be more onerous.366
272 (1987)) (1997, 2005 Bar Question)
Absolute: Bernas submits that acceptance by the
361 condemned is required only when the offer of
3. Scope of Pardon
clemency is not without encumbrance.367 (1995
In granting the President the power of executive Bar Question)
clemency, the Constitution does not distinguish
between criminal and administrative cases. Note: A pardon obtained by fraud upon the
(Llamas v. Orbos) pardoning power, whether by misrepresentation or
by suppression of the truth or by any other
Pardon is only granted after conviction of final imposition, is absolutely void.368
judgment.
A convict who has already served his prison term 6. Effects of Pardon
may still be extended a pardon for the purpose of
a. Relieves criminal liability369
relieving him of whatever accessory liabilities have
b. Does not absolve civil liabilities
attached to his offense.362
c. Does not restore public offices already forfeited,
although eligibility for the same may be restored.
4. Limitations on Exercise of Pardon
a. As to punitive consequences and fines in
Constitutional Limitations favor of government. Pardon relieves a party from
1. It cannot be exercised in cases of all punitive consequences of his criminal act.
impeachment Pardon will have the effect of remitting fines and
2. Reprieves, commutations, and pardons, forfeitures which otherwise will inure to the
and remission of fines and forfeitures can interests of the government itself.
be given only “after conviction by final
judgment; b. As to civil liabilities pertaining to private
litigants. Pardon will not relieve the pardonee of
3. No pardon, amnesty, parole, or the civil liability and such other claims, as may
suspension of sentence for violation of pertain to private litigants.
election laws, rules, and regulations shall
be granted by the President without the c. As Regards Reinstatement:
favorable recommendation of
COMELEC.363 364
Cruz, Philippine Political Law, p. 216 (1995 ed).
365
Sinco, Philippine Political Law, p 283 (1954ed).
360
Sinco, Philippine Political Law, p 281 (1954ed). 366
Bernas Commentary, p 894 (2003 ed).
361
Jacinto Jimenez, Political Law Compendium 323 (2006 ed.) 367
Bernas Commentary, p 895 (2003 ed).
362
Cruz, Philippine Political Law, p. 218 (1995 ed). 368
Sinco, Philippine Political Law, p 283 (1954ed).
363 369
Bernas Commentary, p 893 (2003 ed). Sinco, Philippine Political Law, p 286 (1954ed).

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i. One who is given pardon has no demandable 3. Time of Application375 (1995 Bar Question)
right to reinstatement. He may however be
reappointed. (Monsanto v. Factoran, 1989) Amnesty may be granted before or after the
(Once reinstated, he may be given his former institution of criminal prosecution and sometimes
rank. See Sabello v. Dept. of Education, 1989, even after conviction. (People v. Casido, 268
Bernas Primer at 322) SCRA 360)
ii. However, if a pardon is given because he was
acquitted on the ground that he did not commit 4. Effect of Application
the crime, then reinstatement and backwages
would be due. (Garcia v. COA, 1993) By applying for amnesty, the accused must be
deemed to have admitted the accusation against
In order that a pardon may be utilized as a defense him. (People v. Salig, 133 SCRA 59)
in subsequent judicial proceedings, it is necessary
that it must be pleaded.370 5. Effects of the Grant of Amnesty
7. Pardon v. Parole Criminal liability is totally extinguished by amnesty;
the penalty and all its effects are thus extinguished.
Parole involves only a release of the convict from (See Article 89 of RPC)
imprisonment but not a restoration of his liberty.
The parolee is still in the custody of the law It has also been held that when a detained convict
although no longer under confinement, unlike the claims to be covered by a general amnesty, his
pardonee whose sentence is condoned, subject proper remedy is not habeas corpus petition.
only to reinstatement in case of violation of the Instead, he should submit his case to the proper
condition that may have been attached to the amnesty board.376
pardon.371
6. Requisites (1993 Bar Question)
F. Amnesty 1. Concurrence of a majority of all the members of
Definition Congress (Section 19)
Nature 2. There must be a previous admission of guilt.
Time of Application (Vera v. People)
Effect of Application
Effects of Grant of Amnesty 7. Pardon v. Amnesty
Requirements
Pardon v. Amnesty
Pardon Amnesty
Tax Amnesty
Addressed to ODINARY Addressed to POLITICAL
offenses offenses
1. Definition of Amnesty
Granted to INDIVIDUALS Granted to a CLASS of
persons
Grant of general pardon to a class of political
Conditional pardon must Need not be Accepted
offenders either after conviction or even before the
be accepted
charges are filed. It is the form of executive
No need for congressional Requires congressional
clemency which under the Constitution may be
concurrence concurrence
granted by the executive only with the concurrence
of the legislature.372 Private act of the A public act, subject to
President judicial notice
2. Nature Pardon looks forward. Amnesty looks backward

Only penalties are Extinguishes the offense


It is essentially an executive act and not a
extinguished. itself377
legislative act.373 (Though concurrence of Congress
Civil indemnity is not
is needed)
extinguished.
Only granted after Maybe granted before or
(According to Sinco citing Brown v. Walker, 161 US
conviction of final after conviction
591, Congress is not prohibited from passing acts
judgment
of general amnesty to be extended to persons
before conviction.)374
7. Tax Amnesty

370 374
Sinco, Philippine Political Law, p 283 (1954ed). Sinco, Philippine Political Law, p 285 (1954ed).
371 375
Cruz, Philippine Political Law, p. 220 (1995 ed). Jacinto Jimenez, Political Law Compendium 325 (2006 ed.)
372 376
Bernas Commentary, p 897 (2003 ed). Bernas Commentary, p 901 (2003 ed).
373 377
Bernas Commentary, p 898 (2003 ed). See Bernas Commentary, p 899 (2003 ed).

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a. Legal Nature Congress.382 But a statute may validly authorize


b. Needs Concurrence of Congress other officers, such as department heads or bureau
chiefs, to remit administrative fines and
a. Legal Nature. Tax amnesty is a general pardon forfeitures.383
or intentional overlooking of its authority to impose
penalties on persons otherwise guilty of evasion or IX. Borrowing Power
violation of revenue or tax law, [and as such]
partakes of an absolute forgiveness or waiver by Power to contract or guarantee foreign loans
the Government of its right to collect what Duty of the Monetary Board
otherwise would be due it. (Republic v. IAC,
1991)378 Section 20. The President may contract or guarantee
foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary
b. Needs Concurrence of Congress. Bernas
Board, and subject to such limitations as may be
submits that the President cannot grant tax provided by law. The Monetary Board shall, within thirty
amnesty without the concurrence of Congress.379 days from the end of every quarter of the calendar
year, submit to the Congress a complete report of its
G. Other Forms of Executive Clemency decision on applications for loans to be contracted or
guaranteed by the Government or government-owned
Grant of reprieves, commutations and remission of and controlled corporations which would have the
effect of increasing the foreign debt, and containing
fines and forfeitures are explicit in the Constitution. other matters as may be provided by law.

1. Reprieve
A. Power to contract or guarantee foreign loans
A reprieve is a postponement of a sentence to a Requirements
date certain, or a stay in the execution. Reason for Concurrence
Why the Monetary Board
2. Commutation Spouses Constantino v. Cuisia

Commutation is a remission of a part of the 1. Requirements (1994 Bar Question)


punishment; a substitution of a less penalty for the The President may contract or guarantee foreign
one originally imposed. Commutation does not loans on behalf of the Republic of the Philippines:
have to be in any form. Thus, the fact that a convict 1. With the prior concurrence of the
was released after six years and placed under Monetary Board, and
house arrest, which is not a penalty, already leads
to the conclusion that the penalty have been
2. Subject to such limitations as may be
provided by law
shortened. (Drilon v. CA)
2. Reason for Concurrence
Commutation is a pardon in form but not in
substance, because it does not affect his guilt; it A President may be tempted to contract or
guarantee loans to subsidize his program of
merely reduces the penalty for reasons of public
interest rather than for the sole benefit of the government and leave it to succeeding
administration to pay. Also, it will enable foreign
offender. In short, while a pardon reaches “both
punishment prescribed for the offense and guilt of lending institutions to impose conditions on loans
that might impair our economic and even political
the offender,” a commutation merely reduces the
punishment.380 independence.384

3. Remission 3. Why the Monetary Board.


Because the Monetary Board has expertise and
Remission of fines and forfeitures merely prevents consistency to perform the mandate since such
expertise or consistency may be absent among the
the collection of fines or the confiscation of forfeited
property; it cannot have the effect of returning Members of Congress.385
property which has been vested in third parties or
money already in the public treasury.381 4. Spouses Constantino v. Cuisia (2005)
Q: The financing program for foreign loans
The power of the Chief Executive to remit fines and instituted by the President extinguished portions of
forfeitures may not be limited by any act of the country’s pre-existing loans through either debt
382
378
Bernas Primer at 323 (2006 ed.) Sinco, Philippine Political Law, p 285 (1954ed).
383
379
Bernas Primer at 323 (2006 ed.) Sinco, Philippine Political Law, p 284 (1954ed).
380 384
Sinco, Philippine Political Law, p 284 (1954ed). Cruz, Philippine Political Law, p. 223 (1995 ed).
381 385
Bernas Commentary, p 901 (2003 ed). Bernas Primer at 325 (2006 ed.)

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buyback or bond-conversion. The buy-back


approach essentially pre-terminated portions of
public debts while the bond conversion scheme A. The President and Foreign Affairs Powers
extinguished public debts through the obtention of As head of State, the President is supposed to the
a new loan by virtue of a sovereign bond issuance, spokesman of the nation on external affairs.388 The
the proceeds of which in turn were used for conduct of external affairs is executive
terminating the original loan. Petitioners contend altogether.389 He is the sole organ authorized “to
that buyback or bond conversion are not speak or listen” for the nation in the broad field of
authorized by Article VII, Section 20. external affairs.390

A: The language of the Constitution is simple and B. Foreign Relations Powers of the President
clear as it is broad. It allows the President to 1. The power to negotiate treaties and
contract and guarantee foreign loans. It makes no international agreements;
prohibition on the issuance of certain kinds of loans 2. The power to appoint ambassadors and other
or distinctions as to which kinds of debt instruments public ministers, and consuls;
are more onerous than others. This Court may not 3. The power to receive ambassadors and other
ascribe to the Constitution the meanings and public ministers accredited to the Philippines;
restrictions that would unduly burden the powers of 4. The power to contract and guarantee foreign
the President. The plain, clear and unambiguous loans on behalf of the Republic;
language of the Constitution should be
construed in a sense that will allow the full 5. The power to deport aliens.391
exercise of the power provided therein. It would 6. The power to decide that a diplomatic officer
be the worst kind of judicial legislation if the courts who has become persona non grata be
were to construe and change the meaning of the recalled.392
organic act.386 7. The power to recognize governments and
withdraw recognition393
B. Duty of the Monetary Board C. Source of Power
Duty of MB The extensive authority of the President in foreign
Reason for Reporting relations in a government patterned after that of the
US proceeds from two general sources:
1. Duty 1. The Constitution
The Monetary Board shall, within thirty days from 2. The status of sovereignty and
the end of every quarter of the calendar year, independence of a state.
submit to the Congress a complete report of its In other words, the President derives his powers
decision on applications for loans to be contracted over the foreign affairs of the country not only from
or guaranteed by the Government or government- specific provisions of the Constitution but also from
owned and controlled corporations which would customs and positive rules followed by
have the effect of increasing the foreign debt, and independent states in accordance with international
containing other matters as may be provided by law and practice.394
law.
D. Concurrence of Senate
2. Reason for Reporting When Concurrence of Senate Needed
In order to allow Congress to act on whatever When Concurrence of Senate Not Needed
legislation may be needed to protect public Scope of Power to Concur
interest.387 Treaty

Section 21. No treaty or international agreement shall


X. Foreign Affairs Power/Diplomatic Power be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.
The President and Foreign Affairs Power
Foreign Relations Powers of the President
388
Source of Power Cruz, Philippine Political Law, p. 323 (1995 ed).
Concurrence by the Senate 389
Cruz, Philippine Political Law, p. 323 (1995 ed).
Treaties v. Executive Agreements 390
Sinco, Philippine Political Law, p 298 (1954ed).
Power to Deport 391
Bernas Primer at 326 (2006 ed.)
Judicial Review 392
Bernas Commentary, p 910 (2003 ed).
393
386
Spouses Constantino v. Cuisia, G.R. 106064, October 13, 2005; Bernas Commentary, p 910 (2003 ed); Sinco, Philippine Political
See Bernas Primer at 326 (2006 ed.) Law, p 306 (1954ed).
387 394
Bernas Primer at 325 (2006 ed.) Sinco, Philippine Political Law, p 243 (1954ed).

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1. When Concurrence of Senate Needed b. Two General Steps


Concurrence of at leas 2/3 of all the members of 1. Negotiation- Here the President alone has
Senate is need for the validity and effectivity of: authority
1. Treaties of whatever kind, whether 2. Treaty Approval398
bilateral or multilateral.395
2. International Agreements (that which are c. Effect of Treaties
1. Contract between states as parties
permanent and original)
2. It is a law for the people of each state to
2. When Concurrence of Senate Not Needed observe (municipal law)399
(2003 Bar Question)
Less formal types of international agreements; E. Treaties v. Executive Agreements
Agreements which are temporary or are mere 1. International agreements which involve
implementations of treaties or statutes do not need political issues or changes of national policy
concurrence.396 and those involving international arrangements
of a permanent character take the form or a
3. Scope of Power to Concur treaty; while international agreements involving
adjustment of details carrying out well
The power to ratify is vested in the President established national policies and traditions and
subject to the concurrence of Senate. The role of involving arrangements of a more or less
the Senate, however, is limited only to giving or temporary nature take the form of executive
withholding its consent or concurrence, to the agreements
ratification. Hence, it is within the authority of the 2. In treaties, formal documents require
President to refuse to submit a treaty to the ratification, while executive agreements
Senate. Although the refusal of a state to ratify a become binding through executive action.
treaty which has been signed in his behalf is a (Commissioner of Customs v. Eastern Sea
serious step that should not be taken lightly, such Trading 3 SCRA 351)
decision is within the competence of the President
alone, which cannot be encroached by the Court F. Power to Deport
via a writ of mandamus. (Pimentel v. Executive
Secretary, 2005) The power to deport aliens is lodged in the
President. It is subject to the regulations prescribed
The power of the Senate to give its concurrence in Section 69 of the Administrative Code or to such
carries with it the right to introduce amendments to future legislation as may be promulgated. (In re
a treaty. 397 If the President does not agree to any McClloch Dick, 38 Phil. 41)
amendments or reservations added to a treaty by The adjudication of facts upon which the
the Senate, his only recourse is to drop the treaty deportation is predicated also devolves on the
entirely. But if he agrees to the changes, he may Chief Executive whose decisions is final and
persuade the other nation to accept and adopt the executory. (Tan Tong v. Deportation Board, 96 Phil
modifications. 934, 936 (1955))

4. Treaty G. Judicial Review


Definition
Two General Steps Treaties and other international agreements
Effects of Treaties concluded by the President are also subject to
Termination of Treaties check by the Supreme Court, which has the power
to declare them unconstitutional. (Art. VIII, Section
a. Definition. Treaty is an international agreement 4)
concluded between States in written form and
governed by international law, whether embodied XI. Budgetary Power
in a single instrument or in two or more related
instruments and whatever designation. (1969 Budgetary Power
Vienna Convention on the Law of Treaties) The Budget
Government Budgetary Process
Congress May Not Increase Appropriations
395
Bernas Commentary, p 894 (2003 ed).
Note that a treaty which has become customary law may become Section 22. The President shall submit to the
part of Philippine law by incorporation through Article 2 Section. Congress within thirty days from the opening of every
-asm
396 398
Bernas Primer at 326 (2006 ed.) Sinco, Philippine Political Law, p 299 (1954ed).
397 399
. Sinco, Philippine Political Law, p 299 (1954ed). Sinco, Philippine Political Law, p 300 (1954ed).

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Service, Sacrifice, Excellence
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regular session, as the basis of the general Although couched in mandatory language, the first
appropriations bill, a budget of expenditures and sentence of this provision does not as a rule
sources of financing, including receipts from existing impose a compellable duty on the President.404
and proposed revenue measures.
B. State of the Nation Address
A. Budgetary Power
The President usually discharges the informing
This power is properly entrusted to the executive power through the state-of-the-nation address,
department, as it is the President who, as chief which is delivered at the opening of the regular
administrator and enforcer of laws, is in best session of the legislature.405
position to determine the needs of the government
and propose the corresponding appropriations
therefor on the basis of existing or expected
sources of revenue.400

B. The Budget

The budget of receipts and expenditures


prepared by the President is the basis for the
general appropriation bill passed by the
Congress.401

The phrase “sources of financing” has reference to


sources other than taxation.402

C. Government Budgetary Process

The complete government budgetary process has


been graphically described as consisting of four
major phases:
1. Budget Preparation
2. Legislative Authorization
3. Budget Execution
4. Budget Accountability403
D. Congress May Not Increase Appropriations

The Congress may not increase the appropriations


recommended by the President for the operation of
the Government as specified in the budget. (Article
VI Section 25(1))

XII. Informing Powers


Not Mandatory
State of the Nation Address

Section 23. The President shall address the Congress


at the opening of its regular session. He may also
appear before it at any other time.

A. Not Mandatory

400
Cruz, Philippine Political Law, p. 224 (1995 ed).
401
Bernas Primer at 329 (2006 ed.)
402
Bernas Commentary, p 912 (2003 ed).
403 404
Guingona v. Carague, 196 SCRA 221 (1991); Bernas Cruz, Philippine Political Law, p. 225 (1995 ed).
405
Commentary, p 912 (2003 ed). Cruz, Philippine Political Law, p. 226 (1995 ed).

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Service, Sacrifice, Excellence
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4. The appellate jurisdiction of the Supreme


Court may not be increased by law without its
JUDICIAL DEPARTMENT advice or concurrence. (art. 6 §30)
5. Appointees to the judiciary are now
nominated by the Judicial and Bar Council and
I. JUDICIAL DEPARTMENT no longer subject to confirmation by
II. JUDICIAL POWER(Section 1) Commission on Appointments. (art. 8 §9)
III. JURISDICTION (Section 2) 6. The Supreme Court now has
IV. THE SUPREME COURT(Sections 4, 7-12) administrative supervision over all lower courts
V. POWERS OF THE SUPREME COURT and their personnel. (art. 8 §6)
7. The Supreme Court has exclusive power
(Sections 5,6, 11, 16)
to discipline judges of lower courts. (art 8 §11)
VI. JUDICIAL REVIEW 8. The members of the Supreme Court and
VII. DECIDING A CASE (Sections 4,13-15) all lower courts have security of tenure, which
VIII. OTHER COURTS cannot be undermined by a law reorganizing
the judiciary. (art. 8 §11)
I. Judicial Department 9. They shall not be designated to any
agency performing quasi-judicial or
Composition
administrative functions. (art. 8 §12)
Common Provisions
Independence of Judiciary 10. The salaries of judges may not be
reduced during their continuance in office. (art.
A. Composition 8 §10)
11. The judiciary shall enjoy fiscal autonomy
The Supreme Court and all lower courts make up the (art 8§3)
judicial department of our government.406 12. Only the Supreme Court may order the
temporary detail of judges (art 8 §5(3))
B. Common Provisions 13. The Supreme Court can appoint all
officials and employees of the judiciary. (art. 8
1. Independence of §5(6))
Judiciary (See Section 3)
2. Congressional Section 3. The Judiciary shall enjoy fiscal autonomy.
Oversight (Section 2) Appropriations for the Judiciary may not be reduced by
3. Separation of the legislature below the amount appropriated for the
previous year and, after approval, shall be
Powers (Section 12)
automatically and regularly released.
4. General Rules
(Section 14)
(1999 Bar Question)
5. Period to Decide Fiscal autonomy means freedom from outside
Case (Section 15) control.As envisioned in the Constitution, fiscal
autonomy enjoyed by the Judiciary…contemplates
C. Independence of Judiciary (2000 Bar Question) a guarantee of full flexibility to allocate and
utilize their resources with the wisdom and
To maintain the independence of the judiciary, the dispatch that their needs, require.
following safeguards have been embodied in the
Constitution:407 Fiscal autonomy recognizes the power and
1. The Supreme Court is a constitutional authority to (a) levy, assess and collect fees, (b) fix
body. It cannot be abolished nor may its rates of compensation not exceeding the highest
membership or the manner of its meeting be rates authorized by law for compensation, and (c)
changed by mere legislation. (art 8 §2) pay plans of the government and allocate or
2. The members of the Supreme Court may disburse such sums as may be provided by law or
not be removed except by impeachment. (art. prescribed by them in the course of the discharge
9 §2) of their functions.
3. The SC may not be deprived of its
minimum original and appellate jurisdiction as The imposition of restrictions and constraints on
prescribed in Article X, Section 5. (art. 8 §2) the manner the [Supreme Court] allocate and
utilize the funds appropriated for their operations is
anathema to fiscal autonomy and violative of the
express mandate of the Constitution and of the
406
Cruz, Philippine Political Law, p. 231 (1995 ed). independence and separation of powers. (Bengzon
407
Cruz, Philippine Political Law, p. 229 (1995 ed). v. Drilon)

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An accused who has been convicted by final


Reason. Fiscal autonomy is granted to the judgment still possesses collateral rights and these
Supreme Court to strengthen its autonomy.408 The rights can be claimed in the appropriate courts [e.g.
provision is intended to remove courts from the death convict who becomes insane after his final
mercy and caprice, not to say vindictiveness, of the conviction cannot be executed while in a state of
legislature when it considers the general insanity] The suspension of death sentence is an
appropriations bill.409 exercise of judicial power. It is not usurpation of the
presidential power of reprieve though the effect is
II. Judicial Power the same- the temporary suspension of the
execution of the death convict.” (Echegaray v. Sec.
Where Vested of Justice, 1999)
Definition
Scope D. Limit on Judicial Power
Intrinsic Limit on Judicial Power (1) Courts may not assume to perform
Grave Abuse of Discretion non-judicial functions.
Role of Legislature in Judicial Process (2) It is not the function of the judiciary to
give advisory opinion
Section 1. The judicial power shall be vested in one (3) Judicial power must sometimes yield
Supreme Court and in such lower courts as may be
established by law.
to separation of powers, political questions and
Judicial power includes the duty of the courts of justice to enrolled bill rule.
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or 1. By the principle of separation of powers, courts
not there has been a grave abuse of discretion amounting to may neither attempt to assume nor be
lack or excess of jurisdiction on the part of any branch or compelled to perform non-judicial functions.412
instrumentality of the Government. Thus, a court may not be required to act as a board
of arbitrators (Manila Electric Co. v. Pasay
A. Judicial Power Where Vested (1989 Bar Question) Transportation (1932). Nor may it be charged with
administrative functions except when reasonably
Judicial power shall be vested in one Supreme incidental to the fulfillment of official duties.
Court and in such lower courts as may be (Noblejas v. Tehankee) Neither is it’s the function
established by law. (Section 1 par. 1) of the judiciary to give advisory opinions.

B. Definition of Judicial Power (1994 Bar Question) 2. Advisory Opinions.


An advisory opinion is an opinion issued by a
Traditional Concept: Judicial power includes the court that does not have the effect of resolving a
duty of the courts of justice to settle actual specific legal case, but merely advises on the
controversies involving rights which are legally constitutionality or interpretation of a law.
demandable and enforceable. (Section 1, 2nd
sentence) The nature of judicial power is also the foundation
of the principle that it is not the function of the
Broadened Concept: Duty to determine whether judiciary to give advisory opinion.413 If the courts
[or not] there has been a grave abuse of discretion will concern itself with the making of advisory
amounting to lack or excess of jurisdiction on the opinions, there will be loss of judicial prestige.
party of any branch or instrumentality of the There may be less than full respect for court
Government. (Section 1, 2nd sentence) decisions.

C. Scope of Judicial Power (1989 Bar Question) Declaratory Judgment v. Advisory


Opinions.
Judicial power is the measure of the allowable Declaratory Advisory
scope of judicial action.410 The use of the word Judgment Opinions
“includes” in Section 1 connotes that the provision Involves real parties Response to a legal
with real conflicting issue posed in the
is not intended to be an exhaustive list of what interests abstract in advance of
judicial power is.411 any actual case in
which it may be
presented
Judgment is a final Binds no one
408
one forever binding
Bernas Primer at 336 (2006 ed.) on the parties.
409
Cruz, Philippine Political Law, p. 237 (1995 ed).
410 412
Bernas Commentary, p 914 (2003 ed). Bernas Commentary, p 916 (2003 ed).
411 413
Bernas Commentary, p 919 (2003 ed). Bernas Commentary, p 921 (2003 ed).

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A judicial act Not a judicial act414 such proceeding. (Channie Tan v. Republic, 107
Phil 632 (1960)) An award of honors to a student
3. The ‘broadened concept’ of judicial power is not by a board of teachers may not be reversed by a
meant to do away with the political questions court where the awards are governed by no
doctrine itself. The concept must sometimes yield applicable law. (Santiago Jr. v. Bautista) Nor may
to separation of powers, to the doctrine on courts reverse the award of a board of judges in an
“political questions” or to the “enrolled bill” oratorical contest. (Felipe v. Leuterio, 91 Phil 482
rule.415 (1952)).420

E. Grave Abuse Clause III. Jurisdiction

“To determine whether or not there has been a grave abuse of


Definition
discretion amounting to lack or excess of jurisdiction on the Scope
part of any branch or instrumentality of the Government” Role of Congress

Not every abuse of discretion can be the occasion Section 2. The Congress shall have the power to define,
for the Court to come in by virtue of the second prescribe, and apportion the jurisdiction of the various courts
but may not deprive the Supreme Court of its jurisdiction
sentence of Section 1. It must be “grave abuse of over cases enumerated in Section 5 hereof.
discretion amounting to lack or excess of No law shall be passed reorganizing the Judiciary when it
jurisdiction.”416 under-mines the security of tenure of its Members.

There is grave abuse of discretion: A. Definition


(1) when an act done contrary to the
Constitution, the law, or jurisprudence, or
Jurisdiction is the power and authority of the court
(2) it is executed whimsically, to hear, try and decide a case. (De La Cruz v. CA,
capriciously, arbitrarily out of malice, ill will 2006)
or personal bias. (Infotech v. COMELEC,
2004) B. Scope

Again, the ‘broadened concept’ of judicial power is It is not only the (1) power to determine, but the
not meant to do away with the political questions (2) power to enforce its determination.
doctrine itself. The concept must sometimes yield The (3) power to control the execution of its
to separation of powers, to the doctrine on “political decision is an essential aspect of jurisdiction
questions” or to the “enrolled bill” rule.417 (1995 Bar (Echegaray . Sec. of Justice, 301 SCRA 96)
Question)
C. Role of Congress
Rule 65 embodies the Grave Abuse Clause.418
Power. The Congress shall have the power to
F. Role of Legislature in Judicial Process define, prescribe, and apportion the jurisdiction of
the various courts. (Section 2)
Although judicial power is vested in the judiciary,
the proper exercise of such power requires prior Limitations:
legislative action:
1. Defining such enforceable and
1. Congress may not deprive the Supreme
demandable rights; and Court of its jurisdiction over cases
enumerated in Section 5. ( art. 8 §2)
2. Determining the court with jurisdiction to
hear and decide controversies or disputes
2. No law shall be passed reorganizing the
arising from legal rights.419 Judiciary when it under-mines the security
of tenure of its Members. ( art. 8 §2)
Courts cannot exercise judicial power when there is 3. The appellate jurisdiction of the Supreme
no applicable law. The Court has no authority to Court may not be increased by law except
entertain an action for judicial declaration of upon its advice and concurrence. (art. 6 §
citizenship because there was no law authorizing 30)

* Jurisdiction in Section 2 refers to jurisdiction over


414
Bernas Commentary, p 924 (2003 ed). cases [jurisdiction over the subject matter].421
415
See Bernas Commentary, p 919-920 (2003 ed).
416
Bernas Commentary, p 920 (2003 ed).
417
See Bernas Commentary, p 919-920 (2003 ed).
420
418
Annotation to the Writ of Amparo. Bernas Primer at 335 (2006 ed.)
419 421
Bernas Primer at 335 (2006 ed.) Cruz, Philippine Political Law, p. 2333 (1995 ed).

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IV. The Supreme Court Congress may not alter the qualifications of
Members of the Supreme Court and the
Composition constitutional qualifications of other members of the
Qualifications Judiciary. But Congress may alter the statutory
Judicial and Bar Council qualifications of judges and justices of lower
Appointment courts.424
Salaries
Tenure It behooves every prospective appointee to the
Removal Judiciary to apprise the appointing authority of
Prohibition every matter bearing on his fitness for judicial
office, including such circumstances as may reflect
A. Composition on his integrity and probity. Thus the fact that a
prospective judge failed to disclose that he had
Section 4. (1) The Supreme Court shall be composed of been administratively charged and dismissed from
a Chief Justice and fourteen Associate Justices. It may sit the service for grave misconduct by a former
en banc or in its discretion, in division of three, five, or President of the Philippines was used against him.
seven Members. Any vacancy shall be filled within ninety
It did not matter that he had resigned from office
days from the occurrence thereof.
and that the administrative case against him had
become moot and academic.425
Composition of the Supreme Court: Fifteen (15). Similary, before one who is offered an appointment
1 Chief Justice and 14 Associate Justices. to the Supreme Court can accept it, he must
correct the entry in his birth certificate that he is an
By so fixing the number of members of the alien.426
Supreme Court at [fifteen], it seems logical to infer
that no statute may validly increase or decrease “A Member of the Judiciary must be a person of proven
it.422 competence, integrity, probity, and independence.”

Collegiate Court. The primary purpose of a Competence. In determining the competence of the
collegiate court is precisely to provide for the most applicant or recommendee for appointment, the Judicial
exhaustive deliberation before a conclusion is and Bar Council shall consider his educational
reached.423 preparation, experience, performance and other
accomplishments of the applicant. (Rule 3 Section 1 of
B. Qualifications JBC Rules; See Canon 6 of 2004 New Code of Judicial
Conduct)
Section 7. (1) No person shall be appointed Member of
the Supreme Court or any lower collegiate court unless Integrity. The Judicial and Bar Council shall take every
he is a natural-born citizen of the Philippines. A Member possible step to verify the applicant’s record of and
of the Supreme Court must be at least forty years of age, reputation for honesty, integrity, incorruptibility,
and must have been for fifteen years or more a judge of a
irreproachable conduct and fidelity to sound moral and
lower court or engaged in the practice of law in the
Philippines. ethical standards. (Rule 4, Section 1 of JBC Rules; See
(2) The Congress shall prescribe the qualifications of Canon 2 of 2004 NCJC)
judges of lower courts, but no person may be appointed
judge thereof unless he is a citizen of the Philippines and Probity and Independence. Any evidence relevant to
a member of the Philippine Bar. the candidate’s probity and independence such as, but
(3) A Member of the Judiciary must be a person of proven not limited to, decision he has rendered if he is an
competence, integrity, probity, and independence. incumbent member of the judiciary or reflective of the
soundness of his judgment, courage, rectitude, cold
Qualifications of a Member of the Supreme neutrality and strength of character shall be considered.
Court: (Rule 5 Section of JBC Rules; See Canon 1 of 2004
1. Must be a natural born citizen of the NCJC)
Philippines
2. Must at least be 40 years of age; C. Judicial and Bar Council (1988, 1999 Bar
3. Must have been for 15 years or more a judge Question)
of a lower court or engaged in the practice of Composition
law in the Philippines; and Function
4. A person of proven competence, integrity,
probity, and independence. 424
Bernas Primer at 356 (2006 ed.)
425
In re JBC v. Judge Quitain, JBC No. 013, August 22, 2007.
426
Kilosbayan v. Ermita, G.R. No. 177721, July 3, 2007. This was
422 the case of Justice Gregory Ong of the Sandiganbayanwho was being
Sinco, Philippine Political Law, p 318 (1954ed). promoted to the Supreme court. Ong, however, remains in the
423
Cruz, Philippine Political Law, p. 268 (1995 ed). Sandiganbayan.

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Reason for Creation appointments to the Judiciary do not have to go


through a political Commission on Appointments.429
Section 8.
(1) A Judicial and Bar Council is hereby created under the D. Appointment
supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, Section 9. The Members of the Supreme Court and
and a representative of the Congress as ex officio judges of lower courts shall be appointed by the President
Members, a representative of the Integrated Bar, a from a list of at least three nominees prepared by the
professor of law, a retired Member of the Supreme Court, Judicial and Bar Council for every vacancy. Such
and a representative of the private sector. appointments need no confirmation.
(2) The regular members of the Council shall be For the lower courts, the President shall issue the
appointed by the President for a term of four years with appointments within ninety days from the submission of
the consent of the Commission on Appointments. Of the the list.
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 For every vacancy, the Judicial and Bar Council
the representative of the private sector for one year. submits to the President a list of at least three
(3) The Clerk of the Supreme Court shall be the Secretary names. The President may not appoint anybody
ex officio of the Council and shall keep a record of its who is not in the list. If the President is not satisfied
proceedings. with the list, he may ask for another list.430
(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
Why at least 3? The reason for requiring at least
budget the appropriations for the Council. three nominees for every vacancy is to give the
(5) The Council shall have the principal function of President enough leeway in the exercise of his
recommending appointees to the Judiciary. It may discretion when he makes his appointment. If the
exercise such other functions and duties as the Supreme nominee were limited to only one, the appointment
Court may assign to it. would in effect be made by the Judicial and Bar
Council, with the President performing only the
Composition of JBC: mathematical act of formalizing the commission.431
1. SC Chief Justice (ex officio Chairman)
Ex officio Members Judges may not be appointed in an acting capacity
2. Secretary of Justice or temporary capacity.432 It should be noted that
3. Representative of Congress what the Constitution authorizes the President to
Regular Members (Term of 4 years appointed do is to appoint Justices and judges and not the
by President with the consent of CA) authority merely to designate a non-member of
4. Representative of IBP the Supreme Court temporarily to sit as Justice of
5. Professor of Law Supreme Court.433
6. Retired Member of SC
7. Representative of private sector ASM: Do you know that when there is a vacancy in
the Supreme Court, the remaining members of the
The Clerk of the Supreme Court shall be the Tribunal vote and make a recommendation to the
Secretary ex officio of the JBC. Judicial and Bar Council.

Representative from Congress. Such E. Salaries


representative may come from either House.
In practice, the two houses now work out a Section 10. The salary of the Chief Justice and of the
way of sharing representation.427 A member Associate Justices of the Supreme Court, and of judges
from each comes from both Houses but each of lower courts shall be fixed by law. During their
continuance in office, their salary shall not be decreased.
have only half a vote.428

Function of JBC. JBC’s principal function is to The prohibition of the diminution of the salary of
recommend to the President appointees to the Justices and judges during their continuance in
Judiciary. It may exercise such other functions and office is intended as a protection for the
duties as the Supreme Court may assign to it. independence of the judiciary.434

Rationale for Creation of JBC. The Council was


principally designed to eliminate politics from the 429
Bernas Primer at 357 (2006 ed.)
appointment and judges and justices. Thus, 430
Bernas Commentary, p 985 (2003 ed).
431
Cruz, Philippine Political Law, p. 234 (1995 ed).
432
Cruz, Philippine Political Law, p. 237 (1995 ed).
427
Bernas Primer at 356 (2006 ed.) 433
Bernas Commentary, p 985 (2003 ed).
428 434
Bernas Commentary, p 984 (2003 ed). Bernas Commentary, p 986 (2003 ed).

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The clear intent of the Constitutional Commission 1. SC en banc as Presidential Electoral


was to subject the salary of the judges and justices Tribunal (art 7 §4)
to income tax. (Nitafan v. CIR, 1987) 2. Chief Justice as presiding officer of the
impeachment Court when the President is
F. Tenure in trial (art. 11 §3(6)).
3. Chief Justice as ex officio chairman of the
Section 11. The Members of the Supreme Court and JBC. (art. 8 §8(1)).
judges of lower courts shall hold office during good 4. Justices as members of Electoral
behavior until they reach the age of seventy years or Tribunals (art. 6 §17).
become incapacitated to discharge the duties of their
office. The Supreme Court en banc shall have the power
of discipline judges of lower courts, or order their V. Powers of Supreme Court
dismissal by a vote of a majority of the Members who
actually took part in the deliberations on the issues in the General Power
case and voted thereon. Specific Powers
Original Jurisdiction
Security of Tenure is essential to an independent Appellate Jurisdiction
judiciary. Temporary Assignment of Judges
Change of Venue or Place of Trial
G. Removal Rule-Making Power
Appointment of Court Personnel
Administrative Supervision of Courts
By Impeachment. The Members of the Supreme
Disciplinary/Dismissal Powers
Court are removable only by impeachment. They
Contempt Powers
can be said to have failed to satisfy the
Annual Report
requirement of “good behavior” only if they are
guilty of the offenses which are constitutional
Section 5. The Supreme Court shall have the following
grounds of impeachment. powers:
1. Exercise original jurisdiction over cases affecting
The members of the Supreme Court may be ambassadors, other public ministers and consuls, and
removed from office on impeachment for, and over petitions for certiorari, prohibition, mandamus, quo
conviction of: warranto, and habeas corpus.
1. Culpable violation of the Constitution; 2. Review, revise, reverse, modify, or affirm on appeal or
2. Treason; certiorari as the law or the Rules of Court may provide,
3. Bribery; final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity
4. Graft and Corruption; of any treaty, international or executive agreement, law,
5. Other High Crimes presidential decree, proclamation, order, instruction,
6. Betrayal of Public Trust(Article XI, Section ordinance, or regulation is in question.
2) (b) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation
thereto.
A Supreme Court Justice cannot be charged in a (c) All cases in which the jurisdiction of any lower
criminal case or a disbarment proceeding, because court is in issue.
the ultimate effect of either is to remove him from (d) All criminal cases in which the penalty imposed is
office, and thus circumvent the provision on reclusion perpetua or higher.
removal by impeachment thus violating his security (e) All cases in which only an error or question of
of tenure (In Re: First Indorsement from Hon. Raul law is involved.
Gonzalez, A.M. No. 88-4-5433) 3. Assign temporarily judges of lower courts to other
stations as public interest may require. Such temporary
assignment shall not exceed six months without the
H. Prohibition consent of the judge concerned.
4. Order a change of venue or place of trial to avoid a
Section 12. The Members of the Supreme Court and of miscarriage of justice.
other courts established by law shall not be designated to 5. Promulgate rules concerning the protection and
any agency performing quasi-judicial or administrative enforcement of constitutional rights, pleading, practice,
functions. and procedure in all courts, the admission to the practice
of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and
The provision merely makes explicit an application inexpensive procedure for the speedy disposition of
of the principles of separate of powers.435 cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase, modify substantive
Take note of the other tasks given to SC or the rights. Rules of procedure of special courts and quasi-
Members of SC by the Constitution: judicial bodies shall remain effective unless disapproved
by the Supreme Court.
435
Bernas Commentary, p 991 (2003 ed).

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6. Appoint all officials and employees of the Judiciary in save in certain cases, as when immunity is waived
accordance with the Civil Service Law. either expressly or impliedly. In such instances, the
Supreme Court can and probably should take
Section 6. The Supreme Court shall have administrative cognizance of the litigation in view of possible
supervision over all courts and the personnel thereof. international repercussions.437

Section 11 The petitions for certiorari, mandamus, prohibition,


xxxThe Supreme Court en banc shall have the power of and quo warranto are special civil actions. The
discipline judges of lower courts, or order their dismissal questions raised in the first three petitions are
by a vote of a majority of the Members who actually took questions of jurisdiction or grave abuse of
part in the deliberations on the issues in the case and discretion and, in fourth, the title of the respondent.
voted thereon.
The petition for habeas corpus is a special
proceeding.438
A. General Power
Concurrent Jurisdiction.
Judicial Power (§1) The Supreme Court has concurrent original
jurisdiction with Regional Trial Courts in cases
B. Specific Powers affecting ambassadors, other public ministers and
consuls. (BP 129 § 21(2))
Specific Powers of the Supreme Court under The Supreme Court has concurrent original
Article VIII: jurisdiction with the Court of Appeals in petitions for
1. Original Jurisdiction certiorari, prohibition and mandamus against the
2. Appellate Jurisdiction Regional Trial Courts. (BP 129 § 9(1))
3. Temporary Assignment of Judges The Supreme Court has concurrent original
4. Change of Venue or Place of Trial jurisdiction with the Court of Appeals and the
5. Rule-Making Power Regional Trial Courts in petitions for certiorari,
6. Appointment of Court Personnel (§5) prohibition and mandamus against lower courts
and bodies and in petitions for quo warranto and
7. Administrative Supervision of Courts (§6)
habeas corpus. (BP 129 §9(1), §21(2))
8. Dismissal/ Removal Powers (§11)
(Section 5(1) and (2) refer to the irreducible Principle of Judicial Hierarchy
jurisdiction of the Supreme Court while Section 5 Under a judicial policy recognizing hierarchy of
(3 -6) and Section 6 provide of auxiliary courts, a higher court will not entertain direct resort
administrative powers.) to it unless the redress cannot be obtained in the
appropriate courts. (Santiago v. Vasquez, 217
Other Powers of SC: SCRA 167) Thus, while it is true that the issuance
1. Jurisdiction over proclamation of Martial of a writ of prohibition under Rule 65 is within the
law or suspension of the writ of habeas jurisdiction of the Supreme Court, a petitioner
corpus; (art. 7 §18) cannot seek relief from the Supreme Court where
2. Jurisdiction over Presidential and Vice- the issuance of such writ is also within the
Presidential election contests; (art. 7 §4) competence of the Regional Trial Court or the
3. Jurisdiction over decision, order, or ruling Court of Appeals.
of the Constitutional Commissions. (art. 9 §7) A direct recourse of the Supreme Court’s original
4. Supervision over JBC (art. 8 §8(1)) jurisdiction to issue writs should be allowed only
5. Power to Punish Contempt when there are special and important reasons
therefore, clearly and specifically set out in the
C. Original Jurisdiction petition. (Mangahas v. Paredes, 2007)

Section 5(1). The Supreme Court has original Q: What cases may be filed originally in the
jurisdiction over: Supreme Court?
A: Only petitions for certiorari, prohibition,
1. Cases affecting ambassadors, other mandamus, quo warranto, habeas corpus,
public ministers and consuls. disciplinary proceedings against members of the
2. Petitions for certiorari, prohibition, judiciary and attorneys, and affecting
mandamus, quo warranto, and habeas ambassadors, other public ministers and consuls
corpus.436 may be filed originally in the Supreme Court. (Rule
56, Section 1, Rules of Court)
Note that under international law, diplomats and
even consuls to a lesser extent, are not subject to
jurisdiction of the courts of the receiving State, 437
Cruz, Philippine Political Law, p. 252 (1995 ed).
436 438
See Rule 65, 66 and 102, Rules of Court. Cruz, Philippine Political Law, p. 252 (1995 ed).

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D. Appellate Jurisdiction ultimately by the Supreme Court. This is


mandatory and neither the accused nor the courts
Section 5(2). The Supreme Court has the power to may waive the right of appeal. In the case of the
review, revise, reverse, modify, or affirm on appeal sentence of reclusion perpetua or life
or certiorari as the law or the Rules of Court may imprisonment, however, although the Supreme
provide, final judgments and orders of lower courts Court has jurisdiction to review them, the review is
in: not mandatory. Therefore review in this later cases
a. All cases in which the constitutionality or may be waived and appeal may be withdrawn.442
validity of any treaty, international or
executive agreement, law, presidential In Republic v. Sandiganbayan, 2002, it was held
decree, proclamation, order, instruction, that the appellate jurisdiction of the Supreme Court
ordinance, or regulation is in question. over decisions and final orders of the
b. All cases involving the legality of any tax, Sandiganbayan is limited to questions of law. A
impost, assessment, or toll, or any penalty question of law exists when the doubt or
imposed in relation thereto. controversy concerns the correct application of law
c. All cases in which the jurisdiction of any or jurisprudence to a certain set of facts; or when
lower court is in issue. the issue does not call for an examination of the
d. All criminal cases in which the penalty probative value of the evidence presented, the
imposed is reclusion perpetua or higher. truth or falsehood of facts being admitted.
e. All cases in which only an error or
question of law is involved. Section 5(2), (a) and (b) explicitly grants judicial
review in the Supreme Court. (Judicial Review will
Irreducible. This appellate jurisdiction of the be discussed in the next chapter)
Supreme Court is irreducible and may not be
withdrawn from it by Congress.439 E. Temporary Assignment of Judges

Final Judgments of lower courts. It should be Section 5(3). The Supreme Court has the power to
noted that the appeals allowed in this section are assign temporarily judges of lower courts to other
from final judgments and decrees only of “lower stations as public interest may require. Such
courts” or judicial tribunals. Administrative temporary assignment shall not exceed six months
decisions are not included.440 without the consent of the judge concerned.

The lower courts have competence to decide Rationale of the Provision. The present rule
constitutional questions. Section 5(2)(a) provides bolsters the independence of the judiciary in so far
that Supreme Court has appellate jurisdiction over as it vests the power to temporarily assign judges
“final judgments and orders all cases in which the of inferior courts directly in the Supreme Court and
constitutionality or validity of any treaty, no longer in the executive authorities and
international or executive agreement, law, conditions the validity of any such assignment in
presidential decree, proclamation, order, excess of six months upon the consent of the
instruction, ordinance or regulation is in question.” transferred judge. This will minimize if not
altogether eliminate the pernicious practice of the
Review of Death Penalty. Section 5 requires a rigodon de jeuces, or the transfer of judges at will
mandatory review by the Supreme Court of cases to suit the motivations of the chief executive.443
where the penalty imposed is reclusion perpetua,
life imprisonment, or death. However, the Purpose of Transfer. Temporary assignments
Constitution has not proscribed an intermediate may be justified to arrange for judges with clogged
review. To ensure utmost circumspection before dockets to be assisted by their less busy
the penalty of death, reclusion perpetua or life colleagues, or to provide for the replacement of the
imprisonment is imposed, the Rule now is that such regular judge who may not be expected to be
cases must be reviewed by the Court of Appeals impartial in the decision of particular cases.444
before they are elevated to the Supreme Court.441
Note, however, that the rule for the review of Permanent Transfer. Since transfer imports
decisions of lower courts imposing death or removal from one office and since a judge enjoys
reclusion perpetua or life imprisonment are not the security of tenure, it cannot be effected without the
same. In case the sentence is death, there is consent of the judge concerned.445
automatic review by the Court of Appeals and

442
439 People v. Rocha and Ramos, G.R. No. 173797, August 31, 2007.
Cruz, Philippine Political Law, p. 255 (1995 ed). 443
440 Cruz, Philippine Political Law, p. 259 (1995 ed).
Cruz, Philippine Political Law, p. 256 (1995 ed). 444
441 Cruz, Philippine Political Law, p. 259 (1995 ed).
People v. Mateo, G.R. No. 147678-87. July 7, 2004; People v.
445
Lagua, G.R. No. 170565, January 31, 2006. Bernas Commentary, p 967(2003 ed).

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F. Change of Venue or Place of Trial especially since, as the Supreme Court has had
occasion to say, it includes the inherent authority to
Section 5(4). The Supreme Court has the power to suspend rules when the requirement of justice
order a change of venue or place of trial to avoid a demand.
miscarriage of justice. Moreover, since it is to the Supreme Court that rule
making authority has been given, rules
This power is deemed to be an incidental and promulgated by special courts and quasi-judicial
inherent power of the Court. (See People v. bodies are effective unless disapproved by the
Gutierrez, 36 SCRA 172 (1970)) Supreme Court.

G. Rule Making Power 4. Test to Determine whether the rules diminish,


Power to Promulgate Rules increase or modify substantive rights
Limits on the Rule Making Power 1. If the rule takes away a vested right, it is a
Nature and Function of Rule Making Power substantive matter.
Test to Determin Whether Rules are Substantive 2. If the rule creates a right, it may be a
Rules Concerning Protection of Constitutional Rights substantive matter.
Admission to the Practice of Law 3. If it operates as a means of implementing
Integration of the Bar an existing right, then the rule deals merely
Congress and the Rules of Court with procedure. (Fabian v. Disierto)

1. Power to Promulgate Rules Illustrative cases where the rule merely deals
The Supreme Court has the power to promulgate with procedure:
rules concerning:
Maniago v. CA, 1996
1. The protection and enforcement of The rule that unless a reservation to file a
constitutional rights;
separate civil action is reserved, the civil case is
2. Pleading, practice, and procedure in all deemed filed with the criminal case is not about
courts; substantive rights. Whether the two actions must
3. The admission to the practice of law, be tried in a single proceeding is a matter of
4. The Integrated Bar; procedure.
5. Legal assistance to the underprivileged. Fabian v. Desierto, 1998
(Section 5(5))
The transfer by the Supreme Court of pending
cases involving a review of decision of the Office
2. Limits on SC’s Rule Making Power
of the Ombudsman in administrative actions to
1. Such rules shall provide a simplified and the Court of Appeals is merely procedural. This
inexpensive procedure for the speedy is because, it is not the right to appeal of an
disposition of cases. aggrieved party which is affected by law. The
2. They shall be uniform for all courts of the right has been preserved. Only the procedure by
same grade. which the appeal is to be made or decided has
been changed.
3. They shall not diminish, increase, modify
substantive rights. People v. Lacson, 400 SCRA 267
(This is quite confusing because of the dates)
Rules of procedure of special courts and Facts: Respondent was charged with multiple
quasi-judicial bodies shall remain effective murder. He filed a motion with the trial court for
unless disapproved by the Supreme Court. judicial determination of probable cause. On
March 29, 1999, the trial court dismissed the
3. Nature and Function of Rule Making Power cases provisionally. On December 1, 2000, the
For a more independent judiciary. The authority Revised Rules on Criminal Procedure took
to promulgate rules concerning pleading, practice effect. Section 8 of Rule 117 allowed the revival
and admission to the practice of law is a traditional of the case which was provisionally dismissed
power of the Supreme Court. The grant of this only within two years. On June 6, 2001, the
authority, coupled with its authority to integrate the criminal cases against respondent were refilled.
Bar, to have administrative supervision over all Respondent argued that the refilling of the cases
courts, in effect places in the hands of Supreme was barred. The prosecution argued that under
Court the totality of the administration of justice and Article 90 of the Revised Penal Code, it had
thus makes for a more independent judiciary. twenty years to prosecute respondent.
Held:
Enhances the capacity to render justice. It also Is the rule merely procedural? Yes, the rule is
enhances the Court’s capacity to render justice, merely procedural. Section 8, Rule 117 is not a

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statute of limitations. The two-year bar under the deceased, filed a motion asking for an allowance
rule does not reduce the periods under Article 90 for their support. Petitioners, who were children
of the Revised Penal Code. It is but a limitation of the deceased with another woman, opposed
of the right of the State to revive a criminal case on the grounds that petitioners were already of
against the accused after the case had been majority age and under Section 3 of Rule 83, the
filed but subsequently provisionally dismissed allowance could be granted only to minor
with the express consent of the accused. Upon children.
the lapse of the period under the new rule, the Held: Article 188 of the Civil Code grants
State is presumed to have abandoned or waived children the right to support even beyond the age
its right to revive the case. The prescription of majority. Hence, the respondent were entitled
periods under the Revised Penal Code are not to the allowance. Since, the right to support
diminished. granted by the Civil Code is substantive, it
Is the refilling of cases barred in this case? cannot be impaired by Section 3, Rule 83 of the
No. A procedural law may not be applied Rules of Court.448
retroactively if to do so would work injustice or
would involve intricate problems of due process. Damasco v. Laqui, 166 SCRA 214
The time-bar of two years under the new rule Facts: Petitioner was charged with grave
should not be applied retroactively against the threats. The trial court convicted him of light
State. If the time-bar were to be applied threats. Petitioner moved for reconsideration
retroactively so as to commence to run on March because the crime of which he was convicted
31, 1999, when the prosecutor received his copy had already prescribed when the information was
of the resolution dismissing the cases, instead of filed.
giving the State two years to revive the Held: While an accused who fails to move to
provisionally dismissed cases, the State would quash is deemed to waive all objection which are
have considerably less than two years to do so. grounds to quash, this rule cannot apply to
The period before December 1, 2000 should be prescription. Prescription extinguishes criminal
excluded in the computation of the two-year liability. To apply the said rule will contravene
period, because the rule prescribing it was not Article 89 of the Revised Penal Code which is
yet in effect at that time and the State could not substantive. The rules promulgated by the
be expected to comply with it. 446 Supreme Court must not diminish, increase or
modify substantive rights.449
Illustrative cases where the rule deals with
substantive matter: Zaldivia v. Reyes, 211 SCRA 277
Facts:
PNB v. Asuncion, 80 SCRA 321 On May 30, 1990, a complaint was filed with the
Facts: Petitioner filed a collection case against provincial prosecutor against petitioner for
several solidary debtors. One of them died violating an ordinance by quarrying without a
during the pendency of the case. The court mayor’s permit. The information was filed in court
dismissed the case against all the defendants on on October 2, 1990. Petitioner moved to quash
the ground that the petitioner should file a claim on the ground that under Act 3326, violations of
in the estate proceedings. Petitioner argued that municipal ordinances prescribe in two months
the dismissal should be confined to the and the prescriptive period is suspended only
defendant who died. upon the institution of judicial proceedings. The
Held: Article 1216 of the Civil Code gives the prosecution argued that under Section 1, Rule
creditor the right to proceed against anyone of 110 of the Rules on Criminal Procedure, the filing
the solidary debtors or some or all of them of a case for preliminary investigation interrupts
simultaneously. Hence, in case of the death of the prescriptive period.
one of them, the creditor may proceed against Held: If there is a conflict between Act No. 3326
the surviving debtors. The Rules of Court cannot and Rule 110 of the Rules on Criminal
be interpreted to mean that the creditor has no Procedure, the former must prevail. Prescription
choice but to file a claim in the estate of the in criminal cases is a substantive right.450
deceased. Such construction will result in the
diminution of the substantive rights granted by Illustrative case where retroactive application
the Civil Code.447 of a ruling will affect substantive right:

Santero v. CFI, 153 SCRA 728 LBP v. De Leon, 399 SCRA 376
Facts: During the pendency of the proceeding
for the settlement of the estate of the deceased,
respondents, who were children of the 448
Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)
446 449
Jacinto Jimenez, Political Law Compendium 344 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)
447 450
Jacinto Jimenez, Political Law Compendium, 342 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)

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Facts: The Supreme Court ruled that in Writ of Habeas Data. The writ of habeas data is a
accordance with Section 60 of the remedy available to any person whose right to
Comprehensive Agrarian Reform Law, appeals privacy in life, liberty or security is violated or
from the Special Agrarian Courts should be threatened by an unlawful act or omission of a
made by filing a petition for review instead of public official or employee, or of a private individual
merely filing a notice of appeal. Petitioner filed a or entity engaged in the gathering, collecting or
motion for reconsideration, in which it prayed that storing of data or information regarding the person,
the ruling be applied prospectively. family, home and correspondence of the aggrieved
Held: Before the case reached the Supreme party. (Section 1, The Rule on the Habeas Data)
Court, petitioner had no authoritative guideline
on how to appeal decision of Special Agrarian Writ of Kalikasan. The writ is a remedy available
Courts in the light of seemingly conflicting to a natural or juridical person, entity authorized
provisions of Section 60 and 61 of the by law, people’s organization, non-governmental
Comprehensive Agrarian Reform Law, because organization, or any public interest group
Section 61 provided that review shall be accredited by or registered with any government
governed by the Rules of Court. The Court of agency, on behalf of persons whose
Appeals had rendered conflicting decisions on constitutional right to a balanced and healthful
this precise issue. Hence, the decision of the ecology is violated, or threatened with violation
Supreme Court should be applied prospectively by an unlawful act or omission of a public official or
because it affects substantive right. If the ruling employee, or private individual or entity, involving
is given retroactive application, it will prejudice environmental damage of such magnitude as to
the right of appeal of petitioner because its prejudice the life, health or property of inhabitants
pending appeals in the Court of Appeals will be in two or more cities or provinces. (Rule 7, Rule of
dismissed on a mere technicality thereby, Procedure in Environmental Cases)
sacrificing their substantial merits.451

5. Rules Concerning the protection and


See Internal Rules of the Surpeme Court A.M.
enforcement of constitutional rights; Rules
Concerning pleading, practice and procedure in
10-4-20-SC
courts
In Re: Request for Creation of Special Division,
Power to Make Rules; Writ of Amparo. A.M. No. 02-1-07-SC (2002): It was held that it is
The Rules on the Writ of Amparo is promulgated by within the competence of the Supreme Court, in the
the Court based on its power to promulgate rules exercise of its power to promulgate rules governing
for the protection and enforcement of constitutional the enforcement and protection of constitutional
rights. In light of the prevalence of extra legal killing rights and rules governing pleading, practice and
and enforced disappearances, the Supreme Court procedure in all courts, to create a Special Division
resolved to exercise for the first time its power to in the Sandiganbayan which will hear and decide
promulgate rules to protect our people’s the plunder case of Joseph Estrada.
constitutional rights.
Regulation of Demonstrations
Writ of Amparo (1991 Bar Question) Facts: Petitioner applied for a permit to hold a rally
a. Etymology. “Amparo” comes from in from of the Justice Hall to protest the delay in the
Spanish verb “amparar” meaning “to protect. disposition of the cases of his clients. The mayor
refused to issue the permit on the ground that it
b. Nature: A writ to protect right to life, liberty was prohibited by the Resolution of the Supreme
and security of persons. Court dated July 7, 1998, which prohibited rallies
within two hundred meters of any court building.
c. Section 1 of The Rule on the Writ of Petitioners argued that the Resolution amended
Amparo: “The petition for a writ of amparo is a the Public Assembly Act in violation of the
remedy available to any person whose right to separation of powers.
life, liberty and security is violated or Held: The existence of the Public Assembly Act
threatened with violation by unlawful act or does not preclude the Supreme Court from
omission of a public official or employee, or of promulgating rules regulating the conduct of
a private individual or entity. The writ shall demonstration in the vicinity of courts to assure the
cover extralegal killings and enforced people of an impartial and orderly administration of
disappearances or threats thereof.” (Note that justice as mandate by the Constitution. (In re
not all constitutional rights are covered by this Valmonte, 296 SCRA xi)
Rule; only right to life, liberty and security)
Requirement of International Agreement
451
Jacinto Jimenez, Political Law Compendium, 345 (2006 ed.)

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Facts: The Philippines signed the Agreement to not just amending the rules but reversing the
establishing the World Trade Organization. The Court’s application of an existing rule. (In re
Senate passed a resolution concurring in its Cunanan , 94 phil 534 (1954))
ratification by the President.
Petitioners argued that Article 34 of the General Nullification of Bar Results. In 2003, the Court
Provisions and Basic Principles of the Agreement nullified the results of the exams on Commercial
on Trade-Related Aspects of Intellectual Property Law when it was discovered that the Bar questions
Rights is unconstitutional. Article 34 requires had been leaked. (Bar matter No. 1222, 2004)
members to create a disputable presumption in
civil proceedings that a product shown to be 7. Integration of the Bar
identical to one produced with the use of a a. Bar - refers to the collectivity of all persons
patented process shall be deemed to have been whose names appear in the Roll of Attorneys.
obtained by illegal use of the patented process if
the product obtained by the patented process is b. Integration of the Philippine Bar - means the
new or there is a substantial likelihood that the official unification of the entire lawyer population of
identical product was made with the use of the the Philippines. This requires membership and
patented process but the owner of the patent could financial support (in reasonable amount) of every
not determine the exact process used in obtaining attorney as conditions sine qua non to the practice
the identical product. Petitioners argued that this of law and the retention of his name in the Roll of
impaired the rule-making power of the Supreme Attorneys of the Supreme Court. (In re Integration
Court. of the Bar of the Philippines)
Held: Article 34 should present no problem.
Section 60 of the Patent Law provides a similar c. Purpose of an integrated Bar, in general are:
presumption in cases of infringement of a patented 1. Assist in the administration of justice;
design or utility model. Article 34 does not contain 2. Foster and maintain, on the part of its
an unreasonable burden as it is consistent with due members, high ideals of integrity, learning,
process and the adversarial system. Since the professional competence, public service and
conduct;
Philippines is signatory to most international
3. Safeguard the professional interests of its
conventions on patents, trademarks and members;
copyrights, the adjustment in the rules of 4. Cultivate among its members a spirit of
procedure will not be substantial. (Tanada v. cordiality and brotherhood;
Angara, 272 SCRA 18)452 5. Provide a forum for the discussion of law,
jurisprudence, law reform, pleading, practice,
Power to Suspend Its Own Rules. Section 5(5) of and procedure, and the relation of the Bar to
the Constitution gives this Court the power to the Bench and to the public, and public relation
relating thereto;
"[p]romulgate rules concerning the protection and
6. Encourage and foster legal education;
enforcement of constitutional rights, pleading, 7. Promote a continuing program of legal research
practice and procedure in all courts." This includes in substantive and adjective law, and make
an inherent power to suspend its own rules in reports and recommendations thereon; and
particular cases in order to do justice.453 8. Enable the Bar to discharge its public
responsibility effectively (In re Integration of the
6. Admission to the Practice of Law Bar of the Philippines)
Rule on Conduct of Officials. Section 90 of the
Local Government Code which prohibits lawyers d. In re: Atty. Marcial Edillon. In this case, Atty.
who are members of a local legislative body to Edillon objects to the requirement of membership in
practice law is not an infringement on the power of the integrated bar as a pre-condition to the practice
the Court to provide for rules for the practice of law. of law. This gave the Court the opportunity to
The law must be seen not as a rule on practice of ventilate some basic notions underlying bar
law but as a rule on the conduct of officials integration.
intended to prevent conflict of interest. (Javellana v. 1. The practice of law is a privilege that is
DILG, 1992) subject to reasonable regulation by the
State;
Bar Flunkers Act. After the Supreme Court has 2. Bar integration is mandated by the
declared candidates for the bar as having flunked Constitution;
the examinations, Congress may not pass a law 3. The lawyer is not being compelled to join
lowering the passing mark and declaring the same the association. Passing the bar
candidates as having passed. This would amount examination already made him a member
of the bar. The only compulsion to which
452
Jacinto Jimenez, Political Law Compendium, 347 (2006 ed.) he is subjected is the payment of annual
453
Lim et al v CA, G.R. No. 149748, November 16, dues, and this is justified by the need for
2006. elevating the quality of legal profession;

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4. The Constitution vests in the SC plenary Note that Section 5(6) empowers the Supreme
powers regarding admission to the bar. Court not only to appoint its own officials and
employees but of the Judiciary itself.
e. Letter of Atty Arevalo, 2005. Payment of dues
is a necessary consequence of membership in the It should also be recalled that courts may be given
Integrated Bar of the Philippines, of which no one is authority by Congress “to appoint officers lower in
exempt. This means that the compulsory nature of rank.” (art. 7 §16)
payment of dues subsists as long as one’s
membership in the IBP remains regardless of the I. Administrative Supervision of Courts
lack of practice of, or the type of practice, the
member is engaged in.454 Strengthens Independence. Section 6 provides
that the Supreme Court shall have administrative
8. Congress and the Rules of Court supervision by the Supreme Court over all lower
Bernas Primer: Rules issued by the Supreme courts and the personnel thereof. It is a significant
Court may be repealed, altered, or supplemented innovation towards strengthening the
by Congress because Congress has plenary independence of the judiciary. Before 1973
legislative power. The silence of the Constitution on Constitution, there was no constitutional provision
the subject can only be interpreted as meaning that on the subject and administrative supervision over
there is no intention to diminish that plenary power. the lower courts and their personnel was exercised
In fact, RA 8974 which requires full payment before by the Secretary of Justice.457 The previous set-up
the sate may exercise proprietary rights, contrary to impaired the independence of judges who tended
Rule 67 which requires a deposit, was recognized to defer to the pressures and suggestions of the
by Court in Republic v. Gingoyon, 2005. (An earlier executive department in exchange for favorable
obiter dictum in Echegaray v. Sec. of Justice, action on their requests and administrative
1999, said that Congress has no power to amend problems.458
Rules. This was repeated by Puno and Carpio in
dissent in Republic v. Gingoyon)455 Exclusive Supervision. Article VIII, Section 6
exclusively vests in the Supreme Court
Nachura (2006): Congress cannot amend the administrative supervision over all courts and court
Rules of Court. “The 1987 Constitution took away personnel, from the Presiding Justice of the Court
the power of Congress to repeal, alter or of Appeals down to the lowest municipal trial court
supplement rules concerning pleading and clerk. By virtue of this power, it is only the Supreme
procedure. In fine, the power to promulgate rules of Court that can oversee the judges’ and court
pleading, practice and procedure is no longer personnel’s compliance with all laws, and take
shared by this Court with Congress, more so with proper administrative action against them if they
the Executive.” Echagaray v. Secretary of Justice commit any violation thereof. No other branch of
(1999) government may intrude into this power, without
running afoul to the doctrine of separation of
ASM: Follow Bernas’ view. Article XVIII, Section 10 powers. (Maceda v. Vasquez)
provides: “The provisions of the existing Rules of
Court, judiciary acts, and procedural laws not Ombudsman and SC’s Power of Supervision.
inconsistent with this Constitution shall remain The Ombudsman may not initiate or investigate a
operative unless amended or repealed by the criminal or administrative complaint before his
Supreme Court or the Congress” office against a judge; the Ombudsman must first
indorse the case to the Supreme Court for
H. Appointment of Court Personnel appropriate action. (Fuentes v. Office of
Ombudsman, 2001)
The authority of the Supreme Court to appoint its
own official and employees is another measure Administrative Proceeding, Confidential.
intended to safeguard the independence of the Administrative proceedings before the Supreme
Judiciary. However, the Court’s appointing Court are confidential in nature in order to protect
authority must be exercised “in accordance with the the respondent therein who may turn out to be
Civil Service Law.”456 innocent of the charges. (Godinez v. Alano, 1999)

According to Bernas, the power of administrative


supervision of the Supreme Court, includes the

454
Letter of Atty. Cecilio Y. Arevalo, Requesting Exemptions from
Payment of IBP Dues, May 9, 2005.
455 457
Bernas Primer at 352 (2006 ed.) Bernas Commentary, p 979 (2003 ed).
456 458
Bernas Commentary, p 979 (2003 ed). Cruz, Philippine Political Law, p. 264 (1995 ed).

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power [sitting en banc] to discipline judges of lower Court has over its members and over all the
courts, or order their dismissal.459 members of the judiciary.463

J. Disciplinary Powers K. Contempt Powers

Section 11 One of the essential powers of every court under


The Members of the Supreme Court and judges of lower our system of government is that of punishing for
courts shall hold office during good behavior until they contempt persons who are guilty of disobedience
reach the age of seventy years or become incapacitated to its orders or for disrespect to its authority. The
to discharge the duties of their office. The Supreme Court
punishment is either imprisonment or fine.464
en banc shall have the power of discipline judges of lower
courts, or order their dismissal by a vote of a majority of
the Members who actually took part in the deliberations “While it is sparingly to be used, yet the power of
on the issues in the case and voted thereon. courts to punish for contempts is a necessary and
integral part of the independence of judiciary, and
1. Power to Discipline is absolutely essential to the performance of the
duties imposed on them by law. Without it they are
The power of the Supreme Court to discipline
mere boards of arbitration, whose judgments and
judges of inferior courts or to order their dismissal
decrees would only be advisory.”465
is exclusive. It may not be vested in any other
body. Nor may Congress pass a law that judges of
L. Annual Report
lower courts are removable by impeachment.460
Section 16. The Supreme Court shall, within thirty days
2. Disciplinary Actions from the opening of each regular session of the
Congress, submit to the President and the Congress an
annual report on the operations and activities of the
Besides removal, such other disciplinary measures Judiciary
as suspension, fine and reprimand can be meted
out by the Supreme Court on erring judges.461 The purpose of this provision is not to subject the
Court to the President and to the Congress but
3. Requirement for Disciplinary Actions simply to enable the judiciary to inform government
Disciplinary Action Decision about its needs. (I RECORD 510-512)466
Dismissal of judges, Decision en banc (by
Disbarment of a a vote of a majority of The annual report required under this provision can
lawyer, suspension the members who be the basis of appropriate legislation and
of either for more actually took part in government policies intended to improve the
than 1 year or a fine the deliberations on administration of justice and strengthen the
exceeding 10,000 the issues in the case independence of judiciary.467
pesos (People v. and voted thereon)
Gacott)] VI. Judicial Review

Other disciplinary Decision of a division Definition of Judicial Review


actions is sufficient (People v. Constitutional Supremacy
Gacott) Functions of Judicial Review
Who May Exercise
4. SC Determines what “good behavior” is. Requisites of Judicial Review
Judges of lower courts shall hold office during good Political Questions
behavior until they reach the age of seventy years or Effect of Declaration of Unconstitutionality
become incapacitated to discharge the duties of their Partial Unconstitutionality
office. Judicial Review by Lower Courts
It is submitted that the Supreme Court alone can Modalities of Constitutional Interpretation
determine what good behavior is, since the SC
alone can order their dismissal.462 A. Definition

5. SC Determines whether a judge has become Judicial review is the power of the courts to test the
incapacitated validity of governmental acts in light of their
The power to determine incapacity is part of the
overall administrative power which the Supreme
463
Bernas Commentary, p 988(2003 ed).
459 464
Bernas Commentary, p 979 (2003 ed). Sinco, Philippine Political Law, p 372 (1954ed).
460 465
Bernas Commentary, p 988 (2003 ed). Gompers v. Buck’s Stove and Range co., 221 US 418.
461 466
Cruz, Philippine Political Law, p. 267 (1995 ed). Bernas Commentary, p 1000 (2003 ed).
462 467
Bernas Commentary, p 987(2003 ed). Cruz, Philippine Political Law, p. 277 (1995 ed).

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conformity to a higher norm (e.g. the constitution.) 1. Checking- invalidating a law or executive
–asm act that is found to be contrary to the
Constitution.
The power of judicial review is the Supreme Court’s
power to declare a law, treaty, international or 2. Legitimating- upholding the validity of the
executive agreement, presidential decree, law.
Rule on the Double Negative- Uses the
proclamation, order, instruction, ordinance, or
term “not unconstitutional”; the court
regulation unconstitutional. This power is explicitly cannot declare a law constitutional
granted by Section 5(2), (a) and (b).468 Judicial because it already enjoys a presumption of
Review is an aspect of Judicial Power.469 constitutionality
3. Symbolic474- to educate the bench and
Theory of Judicial Review. The Constitution is the
the bar as the controlling principles and
supreme law. It was ordained by the people, the
concepts on matters of great public
ultimate source of all political authority. It confers
importance.
limited powers on the national government. x x x If
the government consciously or unconsciously
In a Separate Opinion in Francisco v. HR, Mr.
oversteps these limitations there must be some
Justice Adolf Azcuna remarked:
authority competent to hold it in control, to thwart
“The function of the Court is a necessary element
its unconstitutional attempt, and thus to vindicate not only of the system of checks and balances, but
and preserve inviolate the will of the people as also of a workable and living Constitution. For
expressed in the Constitution. This power the absent an agency, or organ that can rule, with
courts exercise. This is the beginning and the end finality, as to what the terms of the Constitution
of the theory of judicial review.470 mean, there will be uncertainty if not chaos in
governance... This is what… Hart calls the need
Judicial Review in Philippine Constitution. for a Rule of Recognition in any legal system…”
Unlike the US Constitution471 which does not
provide for the exercise of judicial review by their D. Who May Exercise
Supreme Court, the Philippine Constitution 1. Supreme Court
expressly recognizes judicial review in Section 2. Inferior Courts
5(2) (a) and (b) of Article VIII of the Constitution.
E. Requisites of Judicial Inquiry/Judicial Review
(1994 Bar Question)
B. Principle of Constitutional Supremacy Essential Requisites
1. There must be an actual case or
Judicial review is not an assertion of superiority by controversy; The question involved must be
the courts over the other departments, but merely ripe for adjudication.
an expression of the supremacy of the 2. The question of constitutionality must be
Constitution.472 Constitutional supremacy produced
raised by the proper party;
judicial review, which in turn led to the accepted
Auxiliary Rules
role of the Court as “the ultimate interpreter of the
Constitution.”473 3. The constitutional question must be raised
at the earliest possible opportunity;
C. Functions of Judicial Review 4. The decision of the constitutional question
must be necessary to the determination of the
case itself.
468
(Read the case of Francisco v. HR and David v.
Bernas Primer at 341 (2006 ed.) Arroyo in the original)
469
Bernas Commentary, p 937(2003 ed).
470
Howard L. MacBain, "Some Aspects of Judicial Review," Bacon 1. Actual Case
Lectures on the Constitution of the United States (Boston: Boston
University Heffernan Press, 1939), pp. 376-77 cited in David v. Actual Case or controversy involves a conflict
Arroyo. of legal rights, an assertion of opposite legal
471
The case of Marbury v. Madison established the doctrine of claims susceptible of judicial determination.475
judicial review as a core legal principle in American constitutional
system: “So if a law be in opposition to the constitution; of both the
law and the constitution apply to a particular case, so that the court
474
must either decide that case conformably to the law, disregarding the “The Court also has the duty to formulate guiding and
constitution; or conformably to the constitution, disregarding the law; controlling constitutional principles, precepts, doctrines, or
the court must determine which of these conflicting rules governs the rules. It has the symbolic function of educating bench and bar
case. This is the very essence of judicial duty.” on the extent of protection given by constitutional guarantees.”
472 (Salonga v. Pano, 134 SCRA 438, 1985)
Angara v. Electoral Commission, 63 Phil 139.
473 475
See Cooper v. Aaron, 358 US 1 (1956) Cruz, Philippine Political Law, p. 241 (1995 ed).

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The case must not be: events that may not occur as anticipated, or
1. Moot or academic or indeed may not occur at all.479
2. Based on extra-legal or other similar
consideration not cognizable by Ripeness and Standing.
courts of justice.476 A simple description of the requirements of
standing and ripeness is found in the words of
3. A request for advisory opinion.477 Justice Stone in Nashville v. Wallace. In that
4. Hypothetical or feigned constitutional opinion he referred to: “valuable legal rights…
problems threatened with imminent invasion.” The
5. Friendly suits collusively arranged valuable legal rights constitute the standing
between parties without real adverse and the threat of imminent invasion
interests478 constitute the ripeness.480

Moot Case. A moot case is one that ceases to 2. Standing/Proper Party (1992, 1995 Bar
present a justiciable controversy by virtue of Question)
supervening events, so that a declaration Proper Party- A proper party is one who has
thereon would be of no practical use or value. sustained or is in immediate danger of
Generally, courts decline jurisdiction over such sustaining an injury in result of the act
case or dismiss it on ground of mootness. complained of.481

However, Courts will decide cases, otherwise Locus Standi refers to the right of
moot and academic, if: appearance in a court of justice on a given
question. (Black)
1. There is a grave violation of the
Constitution;
General Rule:
2. The exceptional character of the Direct Interest Test: The persons who
situation and the paramount public impugn the validity of a statute must have a
interest is involved ”personal and substantial interest in the case
3. When the constitutional issue raised such that he has sustained or will sustain,
requires formulation of controlling direct injury as a result.
principles to guide the bench, the bar, and Exceptions:
the public; and 1. Cases of transcendental importance
4. The case is capable of repetition yet or of paramount public interest or
evading review. (Province of Batangas vs. involving an issue of overarching
Romulo, 429 SCRA 736; David v. Arroyo significance.
(2006) Quizon v. Comelec, G.R. No. 2. Cases of Proclamation of martial law
177927, February 15, 2008.) and suspension of the privilege of the
writ of habeas corpus where any
The requirement of actual controversy citizen may challenge the
encompasses concepts such as ripeness, proclamation of suspension. (art.7
standing, and the prohibition against advisory §18)
judicial rulings (BP Chemicals v. UCC, 4 F.3d 3. The right to information on matters of
975) public concern and the right to access
to public documents has been
Ripeness Doctrine. The requirement that a recognized as accruing to mere
case be ripe for judgment before a court will citizenship. (Legaspi v. CSC, 150
decide the controversy. Ripeness refers to SCRA 530 (1987)
readiness for adjudication, 4. Facial Challenge (?)

Rationale. To prevent the courts, through xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx


premature adjudication, from entangling
themselves in abstract disagreements. REQUISITES of standing:
A citizen can raise a constitutional question
When Not Ripe. A claim is not ripe for only when:
adjudication if it rests upon contingent future

476
Cruz, Philippine Political Law, p. 241 (1995 ed); See Cawaling v. 479
Texas v. United States, 523 U.S. 296, 300 (1998).
COMELEC, 368 SCRA 453) 480
477
Jerre S. Williams, Constitutional Analysis 16, (1979).
Cruz, Philippine Political Law, p. 242 (1995 ed). 481
Ex Parte Levitt, 303 US 633; People v. Vera 65 Phil 58, 89
478
Bernas Commentary, p 938(2003 ed). (1937).

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1. Injury: He can show that he has that the contract is in contravention of the law.
(Tatad v. Garcia, 243 SCRA 436)482
personally suffered some actual or
threatened injury because of the Facts: Petitioners who were Filipino citizens and
allegedly illegal conduct of the taxpayers, questioned the constitutionality of the
government; IPRA on the ground that it deprived the State of
2. Causation: The injury is fairly ownership over lands of the public domain and the
natural resources in them in violation of Section 2,
traceable to the challenged action;
Article XII of the Constitution.
and Held: As, citizens, petitioners possess the public
3. Redressability: A favorable action right to ensure that the national patrimony is not
will likely redress the injury. alienated and diminished in violation of the
(Francisco v. Fernando GR 166501, Constitution. Since the government holds it for the
benefit of the Filipinos, a citizen had sufficient
2006)
interest to maintain a suit to ensure that any grant of
concession covering the national patrimony strictly
In a public suit, where the plaintiff asserts a complies with the constitutional requirements.
public right in assailing an allegedly illegal In addition, the IPRA appropriate funds. Thus, it is a
official action, our Court adopted the “direct valid subject of a taxpayer’s suit. (Cruz v. Secretary
injury test” in our jurisdiction. (David v. Arroyo) of Environment and Natural Resources, 347 SCRA
128)483
Direct Injury Test: The persons who impugn
the validity of a statute must have a ”personal Facts: Petitioner, a senator, questioned the
constitutionality of Administrative Order No. 308
and substantial interest in the case such
which provided for the establishment of a national
that he has sustained or will sustain, direct computerized identification reference system.
injury as a result. (David v. Arroyo) (See Petitioner contends that the AO usurps legislative
People v. Vera, 65 Phil 58, 89 (1937)). power. The government questioned his standing to
file the case.
By way of summary, the following rules may Held: As a senator, petitioner is possessed of the
be culled from the cases decided by the requisite standing to bring suit raisin the issue that
Supreme Court. Taxpayers, voters, concerned the issuance of AO 308 is a usurpation of legislative
power. (Ople v. Torres, 293 SCRA 141)484
citizens, and legislators may be accorded
standing to sue, provided that the following
Facts: Petitioners, who are minors, filed a case to
requirements are met: compel the Secretary of Environment and Natural
1. the cases involve constitutional issues Resources to cancel the timber license agreements
2. for taxpayers, there must be a claim of and to desist from issuing new ones on the ground
illegal disbursement of public funds or that that deforestation has resulted in damage to the
environment. The Secretary of argued that
the tax measure is unconstitutional;
petitioners has no cause of action.
3. for voters, there must be a showing of Held: SC said that Petitioners have a right to a
obvious interest in the validity of the sound environment, this is incorporated in Section
election law in question; 16 of Article II.
SC also said that Petitioners have personality to sue
4. for concerned citizens, there must be a based on the concept of intergenerational
showing that the issues raised are of responsibility insofar as the right to a balanced and
transcendental importance which must be healthful ecology is concerned. “We find no difficulty
settled early; in ruling that they can, for themselves, for others of
their generation and for the succeeding generation.
5. for legislators, there must be a claim that Their personality to sue in behalf of the succeeding
the official action complained of infringes generations can only be based on the concept of
upon their prerogatives as legislators intergenerational responsibility insofar as the right to
[David v. Arroyo G.R. No. 171396 a balanced ecology is concerned.” (Oposa v.
(2006)] Factoran, 1993)

Illustrative Cases showing existence of Illustrative Cases showing absence of


standing: standing:

Facts: Petitioners filed a case as taxpayers Facts: Upon authorization of the President, the
questioning the validity of the contract between PCGG ordered the sale at public auction of paintings
DOTC and respondent by virtue of which respondent by old masters and silverware alleged to be illgotten
agreed to build and lease to the DOTC a light wealth of former President Marcos, his relatives, and
railway transit system. Respondent claimed that friends. Petitioners, who were Filipino citizens,
petitioners had no standing to file the action.
482
Held: Taxpayers may file action questioning Jacinto Jimenez, Political Law Compendium, 333 (2006 ed.)
contracts entered into by government on the ground 483
Jacinto Jimenez, Political Law Compendium, 334 (2006 ed.)
484
Jacinto Jimenez, Political Law Compendium, 336 (2006 ed.)

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taxpayers, and artist, filed a petition to restrain the (3) the lack of any other party with a
auction.
Held: Petitioners have no standing to restrain the more direct and specific interest in raising
public auction. The paintings were donated by the question. (Francisco vs. House of
private persons to the MMA who owns them. The Representatives, 415 SCRA 44; Senate v.
pieces of silverware were given to the Marcos Ermita G.R. No. 169777 (2006))
couple as gifts on their silver wedding anniversary.
Since the petitioners are not the owners of the Facial Challenge488.
paintings and the silverware, they do not possess The established rule is that a party can
any right to question their dispositions. (Joya v.
question the validity of a statute only if, as
PCGG, 225 SCRA 586)485
applied to him, it is unconstitutional. The
Facts: Petitioner filed a petition in his capacity as a exception is the so-called “facial challenge.”
taxpayer questioning the constitutionality of the But the only time a facial challenge to a statute
creation of 70 positions for presidential advisers on is allowed is when it operates in the area of
the ground that the President did not have the power freedom of expression. In such instance, the
to create these positions. “overbreadth doctrine” permits a party to
Held: Petitioner has not proven that he has challenge to a statute even though, as applied
sustained any injury as a result of the appointment
to him, it is not unconstitutional, but it might be
of the presidential advisers. (Gonzales v. Narvasa,
337 SCRA 437)486 if applied to others not before the Court whose
activities are constitutionally protected.
Facts: In view of the increase in violent crimes in Invalidation of the statute “on its face”, rather
Metropolitan Manila, the President ordered the PNP than “as applied”, is permitted in the interest of
and the Philippine Marines to conduct joint visibility preventing a “chilling effect” on freedom of
patrols for the purpose of crime prevention and expression (Justice Mendoza’s concurring
suppression. Invoking its responsibility to uphold the opinion in Cruz v. DENR, G.R. No. 135395,
rule of law, the Integrated Bar of the Philippines
December 06, 2000) A facial challenge to a
questioned the validity of the order.
Held: the mere invocation of the IBP of the legislative act is the most difficult challenge to
Philippines of its duty to preserve the rule of law is mount successfully since the challenge must
not sufficient to clothe it with standing in this case. establish that no set of circumstances exists
This is too general an interest which is shared by the under which the act would be valid. (Estrada v.
whole citizenry. The IBP has not shown any specific Sandiganbayan, G.R. No. 148560, November
injury it has suffered or may suffer by virtue of the 19, 2001)489
questioned order. The IBP projects as injurious the
militarization of law enforcement which might
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
threaten democratic institutions. The presumed
injury is highly speculative. (IBP v. Zamora, 338
SCRA 81)487 Bernas: In sum, it may be said that the
concept of locus standi as it exists in Philippine
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx jurisprudence now has departed from the
rigorous American concept.490
Transcendental Importance Being a mere
procedural technicality, the requirement of 3. Earliest Opportunity
locus standi may be waived by the Court in the
exercise of its discretion. Thus, the Court has General Rule: Constitutional question must be
adopted a rule that even where the petitioners raised at the earliest possible opportunity,
have failed to show direct injury, they have such that if it is not raised in the pleadings, it
been allowed to sue under the principle of cannot be considered at the trial, and, if not
"transcendental importance." [David v. considered in trial, cannot be considered on
Arroyo G.R. No. 171396 (2006)] appeal.

When an Issue Considered of Exceptions:


Transcendental Importance: 1. In criminal cases, the constitutional
An issue is of transcendental importance question can be raised at any time in
because of the following: the discretion of the court.
(1) the character of the funds or other 2. In civil cases, the constitutional
assets involved in the case; question can be raised at any stage if
(2) the presence of a clear disregard of a 488
constitutional or statutory prohibition by an Facial Challenge is a manner of challenging a statute in court, in
instrumentality of the government; and which the plaintiff alleges that the statute is always, and under all
circumstances, unconstitutional, and therefore void.
485 489
Jacinto Jimenez, Political Law Compendium, 337 (2006 ed.) Antonio B. Nachura, Outline/Reviewer in Political Law 23 (2006
486 ed.)
Jacinto Jimenez, Political Law Compendium, 338 (2006 ed.)
487 490
Jacinto Jimenez, Political Law Compendium, 339 (2006 ed.) Bernas Commentary, p 949(2003 ed).

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it is necessary to the determination of which must be based upon the ground of


the case itself. “disorderly behavior” and concurred in by at least
3. In every case, except where there is 2/3 of all his colleagues. The determination of what
estoppel, the constitutional question constitutes disorderly behavior is a political
may be raised at any stage if it question and therefore not cognizable by the court;
involves jurisdiction of the court.491 but the disciplinary measure may nonetheless be
disauthorized if it was supported by less than the
4. Necessity/ Lis Mota required vote. The latter issue, dealing as it does
with a procedural rule the interpretation of which
calls only for mathematical computation, is a
Rule: The Court will not touch the issue of
justiciable question.495
unconstitutionality unless it really is
unavoidable or is the very lis mota.492
2. Political Questions, Definition
Reason: The reason why courts will as much
as possible avoid the decision of a Political questions are those questions which under
constitutional question can be traced to the the Constitution are:
doctrine of separation of powers which enjoins 1. To be decided by the people in their
upon each department a proper respect for the sovereign capacity, or
acts of the other departments. The theory is 2. In regard to which full discretionary
that, as the joint act of the legislative and authority has been delegated to the
executive authorities, a law is supposed to legislative or executive branch of the
have been carefully studied and determined to government.496 (Tanada v. Cuenco, 1965)
be constitutional before it was finally enacted.
Hence, as long as there is some other basis Political questions connotes “questions of policy.”
that can be used by the courts for its decision, It is concerned with issues dependent upon the
the constitutionality of the challenged law will wisdom, not legality, of a particular measure.
not be touched and the case will be decided (Tanada v. Cuenco)
on other available grounds.493
3. Guidelines for determining whether a
Motu Propio Exercise of Judicial Review. question is political.
While courts will not ordinarily pass upon Textual Kind
constitutional questions which are not raised in 1. A textually demonstrable constitutional
the pleadings, a court is not precluded from commitment of the issue to a political
inquiring into its own jurisdiction or be department;
compelled to enter a judgment that it lacks Functional Kind
jurisdiction to enter. Since a court may 2. Lack of judicially discoverable and
determine whether or not it has jurisdiction, it
manageable standards for resolving it;
necessarily follows that it can inquire into the
constitutionality of a statute on which its 3. Impossibility of deciding a case
jurisdiction depends. (Fabian v. Desierto, 295 without an initial determination of a
SCRA 470)494 kind clearly for non-judicial discretion;
(Baker v. Carr, 369 US 186 (1962))497
F. Political Questions (1995 Bar Question) Prudential Type
Justiciable v. Political Question 4. Impossibility of a court’s undertaking
Definition of Political Question independent resolution without expressing
Guidelines (Baker v. Carr) lack of the respect due coordinate
Justiciable v. Political branches of the government;
Suspension of Writ and Proclamation of ML
Calling Our Power of the President
Impeachment of a Supreme Court Justice
495
Cruz, Philippine Political Law, p. 78(1995 ed).
1. Justiciable v. Political Questions 496
Cruz: Where the matter falls under the discretion of another
The distinction between justiciable and political department or especially the people themselves, the decision reached
questions can perhaps best be illustrated by the is in the category of a political question and consequently may not be
suspension or expulsion of a member of Congress, the subject of judicial review.
Accordingly, considerations affecting the wisdom, efficacy or
practicability of a law should come under the exclusive jurisdiction
491
Cruz, Philippine Political Law, p. 247 (1995 ed). of Congress. So too, is the interpretation of certain provisions of the
492 Constitution, such as the phrase “other high crimes” as ground for
Bernas Commentary, p 952(2003 ed).
493 impeachment.
Cruz, Philippine Political Law, p. 247 (1995 ed). 497
Bernas Commentary, p 959(2003 ed); Bernas Primer at 348 (2006
494
Jacinto Jimenez, Political Law Compendium, 330 (2006 ed.) ed.)

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FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

5. An unusual need for unquestioning question because there acre constitutional


adherence to a political decision already rules governing apportionment.
made; 2. Daza v. Singson, 1989; Coseteng v.
6. Potentiality of embarrassment from Mitra, 1990; Guingona v. Gonzales, 1992:
multifarious pronouncements by various The Court intervened in the manner of forming
departments. (Baker v. Carr, 369 US 186 the Commission on Appointments.
(1962) 3. Bondoc v. Pineda: The Court invalidated
(Bernas submits that the Grave Abuse Clause the expulsion of a member of the House
has eliminated the prudential type of political Electoral Tribunal.
questions from Philippine jurisprudence.498 (All these were done by the Court because it found
Hence, the question is not political even there applicable legal standards.)
is an “unusual need for questioning adherence
to a political decision already made; or the 4. Grave Abuse Clause and Political Questions
potentiality of embarrassment from
multifarious pronouncements by various
Again, the ‘broadened concept’ of judicial power is
departments on one question.”499)
not meant to do away with the political questions
doctrine itself. The concept must sometimes yield
Examples of Textual Kind500:
to separation of powers, to the doctrine on “political
1. Alejandrino v. Quezon 26 Phil 83 (1924) questions” or to the “enrolled bill” rule.502 (1995 Bar
: The SC through Justice Malcolm held, Question)
“Mandamus will not lie agasint the legislative
body, its members, or its officers, to compel 5. Suspension of the Writ of HC and
the performance of duties purely legislative in Proclamation of Martial Law
their character which therefore pertain to their
The action of the President and the Congress shall
legislative functions and over which they have
be subject to review by the Supreme Court which
exclusive control.”
shall have the authority to determine the sufficiency
2. Osmena v. Pendatun 109 Phil 863 of the factual basis of such action. This matter is no
(1960): The SC refused to interpose itself in longer considered a political question.503
the matter of suspension of Osmena Jr., for a
speech delivered on the floor of Congress. 6. President’s action in calling out the armed
Whether he committed “disorderly behavior” forces
was something in regard to which full
It may be gathered from the broad grant of power
discretionary authority had been given to the
that the actual use to which the President puts the
legislature.
armed forces, is unlike the suspension of the
3. Arroyo v. De Venecia, 1997: The issue in privilege of writ of habeas corpus, not subject to
this case was whether the Court could judicial review.504
intervene in a case where the House of But, while the Court considered the President’s
Representatives was said to have disregarded “calling-out” power as a discretionary power solely
its own rule. The Court said it could not vested in his wisdom and that it cannot be called
because the matter of formulating rules have upon to overrule the President’s wisdom or
been textually conferred by the Constitution on substitute its own, it stressed that “this does not
Congress itself. Hence, provided that no prevent an examination of whether such power
violation of a constitutional provisions or injury was exercised within permissible constitutional
to private rights was involved, the Court was limits or whether it was exercised in a manner
without authority to intervene. constituting grave abuse of discretion. (IBP v.
4. Santiago v. Guingona, 1998: Disspute Zamora) Judicial inquiry can go no further than to
involved is the selection of a Senate Minority satisfy the Court not that the President’s decision is
leader whose position is not created by the correct, but that “the President did not act
Constitution but by Congressional rules. arbitrarily.” Thus, the standard is not
correctness, but arbitrariness. It is incumbent
Examples of Functional Kind501: upon the petitioner to show that the President’s
1. Tobias v. Abalos, 1994; Mariano v. decision is totally bereft of factual basis” and that if
COMELEC, 1995” Apportionment of he fails, by way of proof, to support his assertion,
representative districts is not a political then “this Court cannot undertake an independent
investigation beyond the pleadings. (IBP v.
Zamora cited in David v. Arroyo)
498
See Bernas Commentary, p 959 (2003 ed)
499
Bernas Primer at 348 (2006 ed.) 502
See Bernas Commentary, p 919-920 (2003 ed).
500 503
Bernas Commentary, p 954(2003 ed). Cruz, Philippine Political Law, p. 214 (1995 ed).
501 504
Bernas Commentary, p 957(2003 ed). Bernas Commentary, p 866 (2003 ed)

I sweat, I bleed, I soar… 115


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

The Constitution provides for several limitations to the


6. Impeachment Case against a Supreme Court exercise of the power of the House of Representatives
Justice. over impeachment proceedings. These limitations include
the one-year bar on the impeachment of the same official.
It is well within the power of the Supreme Court to inquire
Facts: On June 2, 2003, former President Joseph
whether Congress committed a violation of the
Estrada filed an impeachment cases against the Chief
Constitution in the exercise of its functions. (Francisco v.
Justice and seven Associate Justices of the Supreme
House of Representatives, 415 SCRA 44)
Court . The complaint was endorsed by three
x-----x
congressmen and referred to the Committee on Justice of
Respondents are also of the view that judicial review of
the House of Representatives. On October 22, 2003, the
impeachments undermines their finality and may also
Committee on Justice voted to dismiss the complaint for
lead to conflicts between Congress and the judiciary.
being insufficient in substance. The Committee on Justice
Thus, they call upon this Court to exercise judicial
had not yet submitted its report to the House of
statesmanship on the principle that "whenever possible,
Representatives.
the Court should defer to the judgment of the people
On October 23, 2003, two congressmen filed a complaint
expressed legislatively, recognizing full well the perils of
a complaint for impeachment against the Chief Justice in
judicial willfulness and pride
connection with the disbursement against the Chief
Held: “Did not the people also express their will when
Justice in connection with the disbursement of the
they instituted the safeguards in the Constitution? This
Judiciary Development Fund. The complaint was
shows that the Constitution did not intend to leave the
accompanied by a resolution of
matter of impeachment to the sole discretion of Congress.
endorsement/impeachment was accompanied by a
Instead, it provided for certain well-defined limits, or in the
resolution of endorsement/impeachment signed by at
language of Baker v. Carr,57 "judicially discoverable
least one-third of the congressmen.
standards" for determining the validity of the exercise of
Several petitions were filed to prevent further proceedings
such discretion, through the power of judicial review.”
tin the impeachment case on the ground that the
Constitution prohibits the initiation of an impeachment
proceeding against the same official more than once the G. Effect of Declaration of Unconstitutionality
same period of one year. Petitioners plead for the SC
to exercise the power of judicial review to determine Orthodox View: An unconstitutional act is not a
the validity of the second impeachment complaint. law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is
The House of Representatives contend that
inoperative, as if it had not been passed at all.505
impeachment is a political action and is beyond the
reach of judicial review. Respondents Speaker De “When courts declare a law to inconsistent with the
Venecia, et. al. and intervenor Senator Pimentel raise the Constitution, the former shall be void and the latter
novel argument that the Constitution has excluded shall govern.” (Article 7 of the New Civil Code)
impeachment proceedings from the coverage of judicial
review. Briefly stated, it is the position of respondents Modern View: Certain legal effects of the statute
Speaker De Venecia et. al. that impeachment is a political prior to its declaration of unconstitutionality may be
action which cannot assume a judicial character. Hence, recognized. “The actual existence of a statute prior
any question, issue or incident arising at any stage of the
to such a determination of constitutionality is an
impeachment proceeding is beyond the reach of judicial
review. For his part, intervenor Senator Pimentel operative fact and may have consequences which
contends that the Senate's "sole power to try" cannot always be erased by a new judicial
impeachment cases (1) entirely excludes the application declaration.”506
of judicial review over it; and (2) necessarily includes the
Senate's power to determine constitutional questions H. Partial Unconstitutionality
relative to impeachment proceedings. They contend that
the exercise of judicial review over impeachment
proceedings is inappropriate since it runs counter to the
Also in deference to the doctrine of separation of
framers' decision to allocate to different fora the powers powers, courts hesitate to declare a law totally
to try impeachments and to try crimes; it disturbs the unconstitutional and as long as it is possible, will
system of checks and balances, under which salvage the valid portions thereof in order to give
impeachment is the only legislative check on the judiciary; effect to the legislative will.507
and it would create a lack of finality and difficulty in
fashioning relief Requisites of Partial Unconstitutionality:
Held: That granted to the Philippine Supreme Court and 1. The Legislature must be willing to retain the
lower courts, as expressly provided for in the Constitution, valid portion(s).508
is not just a power but also a duty, and it was given an
expanded definition