You are on page 1of 227

FRATERNAL ORDER OF UTOPIA

ATENEO DE MANILA UNIVERSITY


SCHOOL OF LAW
ARIS S. MANGUERA

MANGUERA OUTLINE
CONSTITUTIONAL LAW I
COMPREHENSIVE VERSION

organs of the state and defines the relations of the


state with the inhabitants of its territory.2
PRELIMINARIES
B. Subdivisions of Political Law
1. Law of public administration
I. Political Law 2. Constitutional law
A. Definition of Political Law 3. Administrative law
B. Subdivisions of Political Law 4. Law of public corporations3
C. Basis of Philippine Political Law
C. Basis of Philippine Political Law
II. Constitution
A. Definition of Constitution The principles of government and political law of
B. Philosophical View of the Constitution the Philippines are fundamentally derived from
C. Purpose of Constitution American jurisprudence. This conditions was the
D. Classifications of Constitutions inevitable outcome of the establishment of the
E. Qualities of a Good Written Constitution American rule in the Philippines. When Spain
ceded the Phils. to the US, the Spanish Political
F. Essential Parts of a Good Written laws were automatically displaced by those of the
Constitution US.4
G. Permanency and Generality of
constitutions
II. CONSTITUTION
H. Interpretation/Construction of 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 direct action of the people by which the
fundamental powers of the government are
established, limited and defined, and by which
A. Definition of Political Law
those powers are distributed among several
departments for their safe and useful exercise for
Branch of public law1 which deals with the the benefit of the body politic. (Malcolm, Philippine
organization and operation of the governmental Constitutional Law, p. 6)

1
Public law is understood as dealing with matters affecting the state,
the act of state agencies, the protection of state interests. Private law 2
Vicente Sinco, Philippine Political Law 1, 10th ed., 1954.
deals with the regulation of the conduct of private individuals in their 3
Vicente Sinco, Philippine Political Law 1, 10th ed., 1954.
relation with one another. 4
As thus conceived public law consists of political law, criminal law Vicente Sinco, Philippine Political Law 2, 10th ed., 1954.
5
and public international law. Private law includes civil and This definition is comprehensive enough to cover written and
commercial law. unwritten constitutions. (Cruz, Constitutional Law)

I sweat, I bleed, I soar… 1


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

In other words: It is the supreme written law of government is founded.9 (11 Am. Jur. 606 cited in
the land.6 Cruz)

B. Philosophical View of the Constitution Why would a society generally committed to


majority rule choose to be governed by a
The Constitution is a social contract. (Marcos v. document that is difficult to change?
Manglapus) a) To prevent tyranny of the majority
b) Society’s attempt to protect itself from
Viewed in the light of the Social Contract Theories, itself.
the Constitution may be considered as the Social c) Protecting long term values form short
Contract itself in the sense that it is the very basis term passions.10
of the decision to constitute a civil society or State,
breathing life to its juridical existence, laying down D. Constitution as a Municipal Law
the framework by which it is to be governed,
enumerating and limiting its powers and declaring A constitution is a municipal law. As such, it is
certain fundamental rights and principles to be binding only within the territorial limits of the
inviolable. sovereignty promulgating the constitution.11
The Constitution as a political document may be E. Classification
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
F. Qualities of good written constitution
consequence of the social contract of the people.
In other words, the government is only a creature 1. Broad15
of the Constitution. Hence, the government cannot
be a party to a contract that creates it. In the 1987
9
Philippine Constitution, it reads, “We the sovereign
Filipino people…in order to build a …society and 10
Andres D. Bautista, Introduction to Constitutional Law 1, Slide 4
establish a government… ordain and promulgate June 16, 2007.
this Constitution.”) 11
Bernas Commentary, p 5(2003 ed).
12
Rigid constitution is one that can be amended only by a
According to Dean Bautista, “the Constitution formal and usually difficult process; while a flexible
reflects majoritarian values but defends constitution is one that can be changed by ordinary
minoritarian rights.”8 legislation. (Cruz, Constitutional Law p 5)
13
A written constitution is one whose precepts are embodied
C. Purpose of the Constitution in one document or set of documents; while an unwritten
constitution consists of rules which have not been integrated
To prescribe the permanent framework of a system into a single, concrete form but are scattered in various
of government, to assign to the several sources, such as statues of a fundamental character, judicial
decisions, commentaries of publicists, customs and traditions,
departments their respective powers and duties,
and certain common law principles. (Cruz, Constitutional Law
and to establish certain first principles on which the pp 4-5)
14
An enacted or conventional constitution is enacted,
6 formally struck off at a definitive time and place following a
See People v. Pomar, 46 Phil 440. Bernas Commentary xxxvii (2003 conscious or deliberate effort taken by a constituent body or
ed). ruler; while a cumulative or evolved is the result of political
7
Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3 evolution, not inaugurated at any specific time but changing by
June 16, 2007. accretion rather than by systematic method. (Cruz,
8 Constitutional Law p 5)
Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3
15
June 16, 2007.; Majoritarianism is a traditional political philosophy Broad. Because it provides for the organization of the entire
which asserts that a majority of the population is entitled to a certain government and covers all persons and things within the territory of
degree of primacy in the society, and has the right to make decisions the State and also because it must be comprehensive enough to
that affect the society. provide for every contingency. (Cruz, Constitutional Law pp 5-6)

I sweat, I bleed, I soar… 2


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

2. Brief16 6. The 1987 Constitution


3. Definite 17
K. The 1987 Constitution
G. Essential parts of a good written constitution
The 1987 Constitution is the 4th fundamental law to
1. Constitution of government 18
govern the Philippines since it became
2. Constitution of liberty19 independent on July 4, 1946.
3. Constitution of sovereignty20 Background of the 1987 Constitution
[Social and economic rights]
1. Proclamation of the Freedom Constitution
a. Procalamation No. 1, February 25, 1986,
H. Interpretation/Construction of the Constitution21
announcing that she (Corazon Aquino) and
VP Laurel were assuming power.
In Fransisco v HR, the SC made reference to the b. Executive Order No.1, (Febrauary 28, 1986)
use of well-settled principles of constitutional c. Procalamation No.3, March 25, 1986,
construction, namely: announced the promulgation of the
1. Verba Legis22 Provisional (Freedom) Constitution, pending
2. Ratio legis et anima23 the drafting and ratification of a new
Constitution. It adopted certain provisions in
3. Ut magis valeat quam pereat24 the 1973 Constitution, contained additional
articles on the executive department, on
I. Permanence and Generality of constitutions government reorganization, and on existing
laws. It also provided of the calling of a
A constitution differs from a statute, it is intended Constitutional Commission to be composed
not merely to meet existing conditions, but to of 30-50 members to draft a new
govern the future. Constitution.
2. Adoption of the Constitution
It has been said that the term ‘constitution’ implies a. Proclamation No. 9, creating the
an instrument of a permanent nature.25 Constitutional Commission of 50
members.
J. Brief Constitutional History b. Approval of the draft Constitution by the
1. Malolos Constitution Constitutional Commission on October 15,
2. The American Regime and the Organic Acts 1986
3. The 1935 Constitution c. Plebiscite held on February 2, 1987
4. The Japanese (Belligerent) Occupation d. Proclamation No. 58, proclaiming the
5. The 1973 Constitution ratification of the Constitution.
3. Effectivity of the 1987 Constitution: February 2,
16
Brief. It must confine itself to basic principles to be implemented 1987
with legislative details more adjustable to change and easier to
amend. (Cruz, Constitutional Law pp 4-5) Features of 1987 Constitution26
17
Definite. To prevent ambiguity in its provisions which could result 1. The new Constitution consists of 18 articles
in confusion and divisiveness among the people. (Cruz, and is excessively long compared to the
Constitutional Law pp 4-5) 1935 and 1973 constitutions.
18
Constitution of Government. The series of provisions outlining 2. The independence of the judiciary has been
the organization of the government, enumerating its powers, laying strengthened with new provisions for
down certain rules relative to its administration and defining the appointment thereto and an increase in its
electorate. (ex. Art VI, VII, VIII and IX)
19 authority, which now covers even political
Constitution of Liberty. The series of proscriptions setting forth
questions formerly beyond its jurisdiction.
the fundamental civil and political rights of the citizens and imposing
3. The Bill of Rights of the Commonwealth and
limitations on the powers of government as a means of securing the
enjoyment of those rights. (Ex. Article III) Marcos constitutions has been considerably
20
Constitution of Sovereignty. The provisions pointing out the
improved in the 1987 Constitution and even
mode or procedure in accordance with which formal changes in the bolstered with the creation of a Commission
fundamental law may be brought about. (Ex. Art XVII) of Human Rights.
21
Antonio B. Nachura, Outline/Reviewer in Political Law (2006 ed.)
22
Plain meaning rule. Whenever possible the words used in the III. CONSTITUTIONAL LAW
Constitution must be given their ordinary meaning except when
technical terms are employed.
23 A. Concept of Constitutional Law
Interpretation according to spirit. The words of the Constitution
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.

I sweat, I bleed, I soar… 3


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

Constitutional law is a body of rules resulting from (But see the case of Neri v. Senate Committees
the interpretation by a high court of cases in which where the Court cited many American cases)
the validity, in relation to the constitutional
instrument, of some act of government…has been IV. BASIC CONCEPTS
challenged. (Bernas Commentary xxxviii)
Constitutionalism
Constitutional law is a term used to designate the Philippine Constitutionalism
law embodied in the constitution and the legal Doctrine of Constitutional Supremacy
principles growing out of the interpretation and Republicanism
application made by courts of the constitution in Principle of Separation of Powers
specific cases. (Sinco, Phil. Political Law) System of Checks and Balances
Judicial Review
Constitutional law is the study of the maintenance Due Process
of the proper balance between authority
represented by the three inherent powers of the A. Constitutionalism
State and liberty as guaranteed by the Bill of
Rights. (Cruz, Constitutional Law) Constitutionalism refers to the position or practice
that government be limited by a constitution.
Constitutional law consist not only of the
constitution, but also of the cases decided by the The doctrine or system of government in which the
Supreme Court on constitutional grounds, i.e., governing power is limited by enforceable rules of
every case where the ratio decidendi is based on a law, and concentration of power is limited by
constitutional provision. (Defensor-Santiago, various checks and balances so that the basic
Constitutional Law) rights of individuals and groups are protected.

B. Types of Constitutional law27 B. Philippine Constitutionalism


1. English type28
2. European continental type29 Constitutionalism in the Philippines, understood in
3. American type30 the American sense, dates back to the ratification
of Treaty of Paris. Then it grew from a series of
C. Weight of American Jurisprudence organic documents. These are:
(1) Pres. Mc Kinleys’ Instruction to the Second
In the case of Francisco v. HR, (2003) The Supreme Phil. Commission,
Court speaking through Justice Carpio Morales opined: (2) Phil. Bill of 1902,
“American jurisprudence and authorities, much (3) Phil. Autonomy Act of 1916. (Bernas,
less the American Constitution, are of dubious Commentary xxxviii)
application for these are no longer controlling
within our jurisdiction and have only limited C. Doctrine of Constitutional Supremacy (2004 Bar
persuasive merit insofar as Philippine Exam Question)
constitutional law is concerned. As held in
the case of Garcia vs. COMELEC, "[i]n If a law violates any norm of the constitution, that
resolving constitutional disputes, [this Court] law is null and void; it has no effect. (This is an
should not be beguiled by foreign overstatement, for a law held unconstitutional is
jurisprudence some of which are hardly not always wholly a nullity)
applicable because they have been dictated by
different constitutional settings and needs." The American case of Marbury v. Madison laid
Indeed, although the Philippine Constitution down the classic statement on constitutional
can trace its origins to that of the United supremacy” “It is a proposition too plain to be
States, their paths of development have long contested, that the Constitution controls any
since diverged. In the colorful words of Father legislative act repugnant to it.”
Bernas, "[w]e have cut the umbilical cord."”
Constitutional supremacy produced judicial
review.31

27
Vicente Sinco, Philippine Political Law 67, 10th ed., 1954. D. Republicanism
28
Characterized by the absence of a written constitution.
29 The essence of republicanism is representation
There is a written constitution which gives the court no power to
declare ineffective statutes repugnant to it. and renovation, the selection by the citizenry of a
30 corps of public functionaries who derive their
Legal provisions of the written constitution are given effect
through the power of the courts to declare ineffective or void
31
ordinary statutes repugnant to it. Defensor Santiago, Constitutional Law 7.

I sweat, I bleed, I soar… 4


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

mandate from the people and act on their behalf, 2. Existence of overlapping powers38
serving for a limited period only, after which they
are replaced or retained at the option of their F. Checks and Balances
principal.32
(More discussion of Republicanism under Article II)
The Constitution fixes certain limits on the
independence of each department. In order that
E. Principle of Separation of Powers
these limits may be observed, the Constitution
gives each department certain powers by which it
Essence. In essence, separation of powers means may definitely restrain the other from exceeding
that legislation belongs to Congress, execution to their authority. A system of checks and balances is
the executive, settlement of legal controversies to thus formed.39
the judiciary. Each is prevented from invading the
domain of others. (Bernas, Commentary 656, 2003 To carry out the system of checks and balances,
ed.) the Constitution provides:
Division and Assignment. Its starting point is the 1. The acts of the legislative department
assumption of the division of the functions of the have to be presented to the executive for
government into three distinct classes—the approval or disapproval.
executive, the legislative and the judicial. Its 2. The executive department may veto the
essence consists in the assignment of each class acts of the legislature if in its judgment
of functions to one of the three organs of they are not in conformity with the
government.33 Constitution or are detrimental to the
interests of the people.
Theory. The theory is that “a power definitely 3. The courts are authorized to determine
assigned by the Constitution to one department the validity of legislative measures or
can neither be surrendered nor delegated by executive acts.
that department, nor vested by statute in another 4. Through its pardoning power, the
department or agency.”34 executive may modify or set aside the
judgments of the courts.
Reason. The underlying reason of this principle is
the assumption that arbitrary rule and abuse of 5. The legislature may pass laws that in
authority would inevitably result from the effect amend or completely revoke
concentration of the three powers of government in decisions of the courts if in its judgment
the same person, body of persons or organ.35 they are not in harmony with its intention
or policy which is not contrary to the
More specifically, according to Justice Laurel, the Constitution.40
doctrine of separation of powers is intended to: 6. President must obtain the concurrence of
1. Secure action Congress to complete certain significant
2. To forestall overaction acts.
3. To prevent despotism 7. Money can be released from the treasury
4. To obtain efficiency36 only by authority of Congress.41

History. Separation of powers became the pith and G. Judicial Review


core of the American system of government largely
through the influence of the French political writer Definition. Judicial review refers to the power of
Montesquieu. By the establishment of the the courts to test the validity of governmental acts
American sovereignty in the Philippines, the in light of their conformity with a higher norm (e.g.
principle was introduced as an inseparable feature the constitution).
of the governmental system organized by the
United States in this country.37 Expression of Constitutional Supremacy.
Judicial review is not an assertion of superiority by
Limitations on the Principle the courts over the other departments, but merely
1. System of Checks and Balances
38
The power of appointment is one of these. Although this is
executive in nature, it may however be validly exercised by any of
32 the three departments in selecting its own subordinates precisely to
Cruz, Political Law.
33 protect its independence. (Vicente Sinco, Philippine Political Law
Vicente Sinco, Philippine Political Law 131, 10th ed., 1954. 136, 10th ed., 1954).
34
Williams v. US, 289 US 553 (1933). 39
Vicente Sinco, Philippine Political Law 135, 10th ed., 1954.
35
Vicente Sinco, Philippine Political Law 131, 10th ed., 1954. 40
Tarlac v. Gale, 26 Phil. 338 cited in Vicente Sinco, Philippine
36
Pangasinan Transportaion Co. v. PSC, 40 O.G., 8th Supp. 57. Political Law 135, 10th ed., 1954.
37 41
US v. Bull, 15 Phil 7, 27. Bernas, Commentary 656, 2003 ed.

I sweat, I bleed, I soar… 5


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

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
arbitrariness on the part of the government.
Observance of both substantive and procedural
rights is equally guaranteed by due process.48
(More discussion of Due Process under Article III)

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
Ermita-Malate Hotel & Motors Association v. City of Manila
48
(Tupas v. CA)

I sweat, I bleed, I soar… 6


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

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).

I sweat, I bleed, I soar… 7


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

1. State’s sovereignty is over its:


o Land territory (and airspace above it)
ARTICLE I: NATIONAL TERRITORY o Internal Waters (and airspace above it and
seabed under it)
I. Territory o Archipelagic Waters( and airspace above it
II. Archipelago and seabed under it)
III. Archipelagic Principle o Territorial Sea (and airspace above it and
seabed under it)
I. Territory 2. The coastal state has a right against innocent
passage57 in its internal waters.
3. The coastal state exercises authority over the
A. What is Territory area (contiguous zone) to the extent necessary to
prevent infringement of customs, fiscal,
Territory is the fixed portion of the surface of the immigration or sanitation authority over its territorial
earth inhabited by the people of the state.54 waters or territory and to punish such infringement.
4. The coastal state has rights over the economic
Territory as an element of a state means an area resources of the sea, seabed and subsoil.
over which a state has effective control.55
D. Scope of Philippine National Territory Defined in
B. What does territory include? Article I, Section 1.
It includes:
Territory includes land, maritime areas, airspace (1) The Philippine archipelago;
and outer space.56 (2) All other territories over which the Philippines
has sovereignty or jurisdiction;
Airspace (3) The territorial sea, seabed, subsoil, insular
o Each state has exclusive jurisdiction over shelves and other submarine areas
the air above its territory. corresponding to (1) and (2). Moreover, (1)
o The consent for transit must be obtained and (2) consist of terrestrial, fluvial and aerial
from the subject nation. domains.58
o Aircrafts not engaged in international air
service, shall have the right to make flights E. Territories Covered under the Definition of Article
into or in transit non-stop across its territory 1
and to make steps for non-traffic purposes 1. Those ceded to the US by virtue of the Treaty
without the necessity of obtaining prior of Paris on December 10, 1898.
permission and subject to the right of the
State flown over to require landing. (Chicago 2. Those defined in the treaty concluded between
Convention on International Civil Action) the US and Spain (Treaty of Washington) on
November 7, 1990, which were not defined in
Outerspace the Treaty of Paris, specifically the islands of
o Sovereignty over airspace extends only until Cagayan, Sulu and Sibuto.
where outerspace begins. (50-100 miles 3. Those defined in the treaty concluded on
from earth) January 2, 1930, between the US and Great
Britain (Treaty with Great Britain), specifically
Different areas beyond the land territory the Turtle and Mangsee islands.
o Territorial Seas (12 N.mi from baseline) 4. The island of Batanes, which was covered
o Contiguous Zone (24 N.mi from baseline) under a general statement in the 1935
o Exclusive Economic Zone/Patrimonial Sea Constitution.
(200 N.mi from baseline) 5. Those contemplated in the phrase “belonging
o High seas (Waters beyond territorial sea) to the Philippines by historic right or legal title”
in the 1973 Constitution.59
C. Significance of Territory
E. “All other territories which the Philippines has
Control over territory is of the essence of a state sovereignty and jurisdiction.”
(Las Palmas case). Certain rights and authority are
exercised within the state’s territory. 57
Passage that is not prejudicial to the peace, good order or
54 security of the coastal state.
Cruz, Philippine Political Law, p. 16 (1995 ed).
58
55
Bernas, An Introduction to Public International Law, 97 (2002 ed). Bernas Primer at 4 (2006 ed.)
56 59
Bernas, An Introduction to Public International Law, 97 (2002 ed). Cruz, Philippine Political Law, p. 18 (1995 ed).

I sweat, I bleed, I soar… 8


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

applies only to “areas which had not previously


This includes any territory which presently belongs been considered as” internal waters.61
or might in the future belong to the Philippines
through any of the internationally modes of D. Philippine Archipelago
acquiring territory.
o Batanes islands The Philippine archipelago is that body of water
o Those belonging to the Philippines by historic studded with islands which is delineated in the
right or legal title (Sabah, the Marianas, Treaty of Paris, modified by the Treaty of
Freedomland) Washington and the Treaty of Great Britain.

II. Archipelago III. Archipelagic Principle

Archipelago Archipelagic Doctrine


Archipelagic State Archipelago Doctrine of Article I
Archipelagic Waters Elements of Archipelagic Doctrine
Philippine Archipelago Purpose of Archipelagic Doctrine

A. Archipelago A. Archipelagic Doctrine


(1989 Bar Question)
Archipelago is a body of water studded with
islands.60 It is the principle whereby the body of water
studded with islands, or the islands surrounded
B. Archipelagic State with water, is viewed as a unity of islands and
waters together forming one integrated unit. For
Archipelagic state means a state constituted wholly this purpose, it requires that baselines be drawn by
by one or more archipelagos and may include connecting the appropriate points of the “outermost
other islands. (Article 46 (a) of UNCLOS) islands to encircle the islands within the
archipelago. We consider all the waters enclosed
C. Archipelagic Waters by the straight baselines as internal waters.62

According to UNCLOS, Archipelagic waters refers B. Elements of Archipelagic Doctrine


to areas enclosed as internal waters by using the 1. Definition of internal waters63
baseline method which had not been previously 2. The straight line method of delineating the
considered as internal waters. (See Article 53 of territorial sea.
UNCLOS)
Straight Baseline Method- drawn connecting
Article 8(2) of UNCLOS: Where the selected points on the coast without departing to
establishment of a straight baseline in any appreciable extent from the general direction
accordance with the method set forth in Article
7 has the effect of enclosing as internal waters
of the coast. RA 3046 and RA 5446 have drawn
areas which had not previously been straight baselines around the Philippines.
considered as such, a right of innocent passage
as provided in this Convention shall exist in (The problem with the straight baseline method is
those waters. that it conflicts with the Law of the Sea because it
recognizes the right of innocent passage in
According to UNCLOS, in “archipelagic waters”, a archipelagic waters. That is why we made a
right of innocent passage shall exist in these reservation. However, as Bernas pointed out, the
waters. But, the Philippines made a reservation, reservation is ad cautelam)
thus, “ The concept of archipelagic waters is similar
to the concept of internal waters under the C. Purposes of Archipelagic Doctrine
Constitution of the Philippines, and removes straits 1. Territorial Integrity
connecting these waters with the economic zone or 2. National Security
high sea from the rights of foreign vessel to transit 3. Economic reasons
passage for international navigation.”

Bernas: The reservation is ad cautelam. The claim 61


made in the Constitution took effect in 1973 before Bernas Commentary, p 28(2003 ed).
the 1982 Law of the Sea Convention was 62
Cruz, Philippine Political Law, p. 17 (1995 ed).
formulated. Article 8(2) of the Convention itself 63
Internal waters refer to “all waters landwards from the
says that the new rule on archipelagic waters
baseline of the territory.”
60
Note: The Philippines considers all waters connecting the
Bernas Primer at 4 (2006 ed.) islands as internal waters.

I sweat, I bleed, I soar… 9


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

It is said that the purpose of archipelagic doctrine is not part of the national territory, exclusive economic
to protect the territorial integrity of the archipelago. benefit is reserved for the country within the zone.
Without it, there would be “pockets of high seas”
between some of our islands and islets, thus By virtue of PD 1599, the Philippine declares that it
foreign vessels would be able to pass through has sovereign rights to explore, exploit, conserve
these “pockets of seas” and would have no and manage the natural resources of the seabed,
jurisdiction over them. subsoil, and superjacent waters. Other states are
prohibited from using the zone except for
navigation and overflight, laying of submarine
D. Archipelago Doctrine in Article I, Section 1 cables and pipeline, and other lawful uses related
(1989 Bar Question) to navigation and communication.
“The waters around, between and connecting the Q: Distinguish the flag state and the flag of
islands of the archipelago, regardless of their convenience. (2004 Bar Question)
breadth and dimensions, form part of internal
waters of the Philippines” Flag state means a ship has the nationality of the
flag of the state it flies, but there must be a genuine
Q: Differentiate archipelagic waters, territorial link between the state and the ship. (Article 91 of
sea and internal waters. (2004 Bar Question) the Convention on the Law of the Sea)
A:
Flag of convenience refers to a state with which a
vessel is registered for various reasons such as
According to UNCLOS, Archipelagic waters refers
low or non-existent taxation or low operating costs
to areas enclosed as internal waters by using the
although the ship has no genuine link with the
baseline method which had not been previously
state. (Harris, Cases and Materials on International
considered as internal waters. (See Article 53 of
Law, 5th ed., 1998, p. 425.)
UNCLOS)

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
coastal state may exercise control necessary to
prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations within
its territory or territorial sea. (Article 33 of the
Convention on the Law of the Sea.)

The EEZ extends 200 nautical miles from the


baseline. The EEZ is recognized in the UN
Convention on the Law of the Sea. Although it is

I sweat, I bleed, I soar… 10


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

It is the statement of the basic ideological principles


ARTICLE II and policies that underlie the Constitution. As such,
DECLARATION OF PRINCIPLES AND the provisions shed light on the meaning of the
other provisions of the Constitution and they are a
STATE POLICIES guide for all departments of the government in
the implementation of the Constitution.65
I.
Principles and State Policies
II.
State as a Legal Concept C. What are Principles? What are Policies?
PRINCIPLES
Principles are binding rules which must be
III. Republicanism (§ 1) observed in the conduct of the government.66
IV. Incorporation Clause (§2)
V. Supremacy of Civilian Authority(§3) Policies are guidelines for the orientation of the
state.67
VI. Defense of State (§4)
VII. Peace and Order(§5) Note: The distinction between principles and
VIII. Separation of Church and State (§6) polices is of little significance because not all of the
STATE POLICIES six “principles” are self-executory and some of the
“policies” already anchor justiciable rights.68
IX. Independent Foreign Policy(§7) o Section 5 (maintenance of peace and order…
X. Freedom from Nuclear Weapons(§8) promotion of general werlfare…) is a mere
XI. Just and Dynamic Social Order (§9) guideline. (Section 16 (right of the people to a
XII. Promotion of Social Justice (§10) balanced and healthful ecology is right-
conferring provisions. (Oposa vs. Factoran)
XIII. Respect for Human Dignity(§11)
XIV. Family, Rearing the Youth (§§ 12-13) Section 1. The Philippines is a
XV. Women(§14) democratic and republican State.
XVI. Health Sovereignty resides in the people
and all government authority
XVII. Balanced and healthful Ecology(§§15-16)
emanates from them.
XVIII. Education, Science and Technology(§17)
XIX. Labor(§18) II. State as a Legal Concept
XX. Economy(§19) Definition of a State
XXI. Private Sector and Private Enterprise (§20) Elements of a State
XXII. Comprehensive Rural Development (§21) Government
Acts of State
XXIII. Indigenous Cultural Communities (§22) State Immunity
XXIV. Sectoral Organizations (§23)
XXV. Communication and Information (§24) A. Definition of a State
XXVI. Local Autonomy (§25)
A state refers to a community of persons, more or
XXVII. Equal Access to Opportunities (§26) less numerous, permanently occupying a definite
XXVIII. Public Service (§27) portion of territory, independent of external control,
and possessing an organized government to which
XXIX. Full Public Disclosure (§28)
the great body of inhabitants render habitual
obedience.69
I. Principles and State Policies
B. Elements of a State
A. Description 1. People
2. Territory
This portion of the Constitution (Article II) might be 65
called the basic political creed of the nation.64 Bernas Primer at 7(2006 ed.)
66
See IV RECORD OF THE CONSTITUTIONAL COMMISSION
B. Function of the “Declaration of Principles and 768 and 580.
67
State Policies” in the Constitution See IV RECORD OF THE CONSTITUTIONAL COMMISSION
768 and 580.
68
64
See Tanada v. Angara. See Vicente Sinco, Philippine Political Law Bernas Commentary, p 37(2003 ed).
69
116 (11th ed., 1962). Bernas Commentary, p 39 (2003 ed).

I sweat, I bleed, I soar… 11


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

3. Sovereignty 4. External
4. Government
Legal Sovereignty.
1. People Cruz: Legal sovereignty is the authority which
A community of persons sufficient in number and has the power to issue final commands. In our
capable of maintaining the continued existence of country, the Congress is the legal sovereign.78
the community and held together by a common
bond of law.70 Bernas: Legal sovereignty is the supreme
power to affect legal interests either by
Different Meanings of “People” as used in the legislative, executive or judicial action. This is
Constitution: lodged in the people but is normally exercised
1. Inhabitants71 by state agencies79

2. Electors72 (Bernas: Political writers distinguish between


3. Citizens73 legal sovereignty and political sovereignty. The
4. Sovereign. The people organized former is described as the supreme power to
make laws and the latter as the sum total of all
collectively as a legal association is the
influences in a state, legal or non-legal, which
state which sovereignty resides.74
determine the course of law. Sinco prefers not
to make the distinction and places legal
2. Territory
sovereignty in the state itself considered as a
Territory is the fixed portion of the surface of the juridical person.)
earth inhabited by the people of the state.75
Political Sovereignty
Territory as an element of a state means an area Sum total of all the influences of a State, legal
over which a state has effective control.76 and non-legal which determine the course of
law.
3. Sovereignty
Definition Internal Sovereignty
Kinds It refers to the power of the State to control its
Characteristics domestic affairs. It is the supreme power over
Effects of Belligerent Occupation everything within its territory.
Effects of Change in Sovereignty
Dominium v. Imperium External Sovereignty
Jurisdiction Also known as Independence, which is
“Sovereignty resides in the people” freedom from external control. It is the power
of State to direct its relations with other
a. Sovereignty States.80

The supreme and uncontrollable power inherent in c. Characteristics of Sovereignty


a State by which that State is governed.77
It is permanent, exclusive, comprehensive,
In auto-limitation terms: It is the property of a State- absolute, indivisible, inalienable, and
force due to which it has the exclusive capacity of imprescriptible.81
legal determination and restriction.
But wait, in the case of Tanada v. Angara, it was
b. Kinds: held that sovereignty of a state cannot be
1. Legal absolute. It is subject to limitations imposed by
2. Political
3. Internal 78
Cruz, Philippine Political Law, p. 26 (1995 ed).
79
70
Bernas Commentary, p 40 (2003 ed). Bernas Primer at 8 (2006 ed.); Section 1 of Article II says:
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.
72 understood as the source of ultimate legal authority. Since the
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
Article II, Section 4; Article III, Section 7. constitution. This power resides in the “people” understood as those
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).
76
Bernas, An Introduction to Public International Law, 97 (2002 ed). 80
Cruz, Philippine Political Law, p. 26 (1995 ed).
77 81
Garner cited in Cruz, Philippine Political Law, p. 26 (1995 ed). Laurel v. Misa, 77 Phil 856.

I sweat, I bleed, I soar… 12


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

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
outside its territorial limits by reason of
treason although decidedly political in character.
their effect to its territory.
Examples:
As to non-political laws. The non-political laws
1. Assertion of its personal jurisdiction over
are deemed continued unless changed by the its nationals abroad; or the exercise of its
belligerent occupant since they are intended to rights to punish certain offenses
govern the relations of individuals as among committed outside its territory against its
themselves and are not generally affected by national interests even if the offenders are
changes in regimes of rulers. non-resident aliens;
2. By virtue of its relations with other states
As for judicial decisions. As for judicial decisions or territories, as when it establishers a
colonial protectorate, or a condominium,
the same are valid during the occupation and even
or administers a trust territory, or occupies
beyond except those of a political complexion, enemy territory in the course of war;
which are automatically annulled upon the 3. When the local state waives its jurisdiction
restoration of the legitimate authority.82 over persons and things within its territory,
as when a foreign army stationed therein
e. Effects of Change in Sovereignty remains under the jurisdiction of the
sending states;
As to political laws. Where there is a change in 4. by the principle of extra territoriality, as
illustrated by the immunities of the head of
sovereignty, the political laws of the former
state in a foreign country;
sovereign are not merely suspended but 5. Through the enjoyment or easements or
abrogated unless they are retained or re-enacted servitudes, such as the easement of
by positive act of the new sovereign. innocent passage or arrival under stress;
6. The exercise of jurisdiction by the state in
As to non-political laws. Non-political laws, the high seas over its vessels; over
continue in operation. pirates; in the exercise of the right to visit
and search; and under the doctrine of hot
pursuit;
f. Imperium v. Dominium
7. The exercise of limited jurisdiction over the
contiguous zone and the patrimonial sea,
Imperium. State’s authority to govern. Covers such to prevent infringement of its customs,
activities as passing laws, governing territory, fiscal, immigration or sanitary regulations.
maintaining peace and order over it, and defending
against foreign invasion. This is the authority
83
possessed by the State embraced in the concept of Exempt are:
sovereignty. 1. Foreign states, heads of state, diplomatic representatives,
and consuls to a certain degree;
2. Foreign state property, including embassies, consulates,
Dominium. Capacity of the State to own property.
and public vessels engaged in non-commercial activities;
Covers such rights as title to land, exploitation and 3. Acts of state;
use of it, and disposition or sale of the same. 4. Foreign merchant vessels exercising the rights of innocent
passage or involuntary entry, such as the arrival under
g. Jurisdiction stress;
5. Foreign armies passing through or stationed in its territory
with its permission;
6. Such other persons or property, including organizations
like the United Nations, over which it may, by agreement,
82
Cruz, Philippine Political Law, p. 28 (1995 ed waive jurisdiction.

I sweat, I bleed, I soar… 13


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

h. Juristic Theory of Sovereignty 3. Functions of Government


(1) Governmental (Constituent)- are the
The legalistic and analytical view of sovereignty
compulsory functions which constitute the very
considers the state as a corporate entity, a
bonds of society.
juridical person.84 It takes the state purely as a
legal organism. It does not have anything to do at (2) Proprietary (Ministerial)—optional functions of
all with its social and historical background. the government for achieving a better life for
the community. (Bacani v. NACOCO)
i. “Sovereignty resides in the PEOPLE”
Governmental Function
The “people” in the sense in which it is used here • Implementation of the land reform may not strictly be
refers to the entire citizenry considered as a “constituent” in the sense of Bacani but the
unit.85 compelling urgency with which the Constitution
speaks of social justice does not leave any doubt that
4. Government land reform is not an optional but a compulsory
Government. That institution or aggregate of function of sovereignty. (ACCFA v. CUGCO)
• The functions of the Veterans Federation of the
institutions by which an independent society makes
Philippines fall within the category of sovereign
and carries out those rules of action which are functions. (Veterans Federation of the Phils. V. Reyes
necessary to enable men to live in a social state, or 483 SCRA 526)
which are impose upon the people forming that • The Manila International Airport Authority is a
society by those who possess the power or governmental instrumentality vested with corporate
authority of prescribing them.86 powers to perform its governmental function. It
performs government functions essential to the
C Government operation of an international airport. (MIAA v. CA)
• Housing is a governmental function since housing is
1. Government of the Republic of the considered an essential service. (PHHC v. CIR)
• The NHA is tasked with implementing the
Philippines
governmental program of providing mass housing to
The Government of the Republic of the Philippines meet the needs of Filipinos for decent housing. The
is a term which refers to the corporate NHA is exempt from paying docket fees in suits in
governmental entity through which the functions relation to its governmental functions. (Badillo v.
of government are exercised throughout the Tayag)
Philippine Islands, including, save as the contrary • The (RCA) Rice and Corn Administration is a
appears from context, the various arms through government machinery to carry out declared
which political authority is made effective in said government policy to stabilize the price of palay, rice,
Islands, whether pertaining to the central and corn and making it within the reach of average
Government or to the provincial or municipal consumers. Its activity of buying and selling corn is
branches or other form of local government. only an incident to its government function. Hence,
(Section 2 of the Revised Administrative Code it is exempt from posting an appeal bond. (Republic v.
(1917). CFI)
On the national scale, the term “government of the • The “AFP Retirement and Benefits System” is a
government entity and its funds are in the nature of
Philippines” refers to the three great departments.
public funds (People v. Sandiganbayan)
On the local level, it means the regional provincial,
Proprietary Function
city municipal an barangay governments. • Undertaking to supply water for a price is considered
It does not include government entities which are a trade and not a governmental activity. (Spouses
given a corporate personality separate and distinct Fontanilla v. Maliaman)
for the government and which are governed by the
corporation law. • Civil Aeronautics Administration is in charge of the
administration of MIA, it is performing proprietary
functions, hence it can be sued even when the claim
2. Government v. Administration
is based on a quasi-delict. (CAA v. CA)

Government is the institution through which the 4. Doctrine of Parens Patriae


state exercises power. Administration consists of
Literally, “parent of the people.” One of the
the set of people currently running the institution.87
important tasks of the government is to act for the
State as parens patriae, or guardian of the rights of
the people.88
84
Sinco, Philippine Political Law, p 18 (1954ed).
85
Sinco, Philippine Political Law, p 19 (1954ed).
5. Classification of Government on the Basis of
86 Legitimacy
US v. Dorr, 2 Phil 332 cited in Bacani v. NACOCO, 100 Phil. 468
(1956).
87 88
Bernas Commentary, p 44(2003 ed). Cruz, Philippine Political Law, p. 23 (1995 ed).

I sweat, I bleed, I soar… 14


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

1. De Jure Government which was reduced to a British possession


2. De Facto Government in the war of 1812, and Tampico, Mexico,
occupied during the war with Mexico by
De Jure Government. One established by the troops of the US.) (Co Kim Chan v.
authority of the legitimate sovereign.89 Valdez , 75 Phil 113)

De Facto Government. One established in Note:


defiance of the legitimate sovereign.90 It actually The government under Cory Aquino and the
exercises power or control without legal title.91 Freedom Constitution is a de jure government.
It was established by authority of the legitimate
3 Kinds of De Facto Government: sovereign, the people. It was a revolutionary
1. The government that gets possession government established in defiance of the
and control or, or usurps, by force or 1973 Constitution. (In Re Letter of Associate
by the voice of majority, the rightful legal Justice Puno, 210 SCRA 589 (1992).
government and maintains itself against
the will of the latter. (Such as the The government under President Gloria
government of England under the Macapagal Arroyo established after the ouster
Commonwealth, first by Parliament and of President Estrada is de jure government.93
later by Cromwell as Protector.)
2. Established and maintained by Sinco on Revolution or Direct State Action:
invading military forces. That “It sometimes happens that the people rise in
established as an independent revolt against the existing administration
government by the inhabitants of a [government] and through force or threats
country who rise in insurrection against succeed in altering the constituted organs of
the parent state (Such as the government the government. From the point of view of the
of the Southern Confederacy in revolt existing constitutional plan, that act is illegal;
against the Union during the war of but considered from the point of view of the
secession in the United States.) sate as a distinct entity not necessarily bound
3. Government of paramount force. That to employ a particular government or
which is established and maintained by administration to carry out its will, it is the
military forces who invade and occupy a direct act of the state itself because it is
territory of enemy in the course of war.92 successful. As such, it is legal, for whatever is
(Such as the cases of Castine in Maine, attributable to the state is lawful. This is the
legal and political basis of the doctrine of
89 revolution.”94
Bernas Primer at 9 (2006 ed.)
90
Bernas Primer at 9 (2006 ed.) 5. Presidential v. Parliamentary form of
91 government (2006 Bar Exam Question)
Cruz, Philippine Political Law, p. 23 (1995 ed).
92
It has been held that the Second Republic of the Philippines was a
de facto government of paramount force, having been established by The presidential form of government’s identifying
the Japanese belligerent during the occupation of the Philippines in feature is what is called the “separation of
World War II. powers.”95
The characteristics of this kind of de facto government are:
1. Its existence is maintained by active military power The essential characteristics of a parliamentary
within the territories, and against the rightful authority of form of government are:
an established and lawful government. 1. The members of the government or
2. During its existence, it must necessarily be obeyed in civil cabinet or the executive arm are, as a
matters by private citizens who, by acts of obedience rule, simultaneously members of the
rendered in submission to such force, do not become
responsible, as wrongdoers, for those acts, though not
legislature;
warranted by the laws of the rightful government. Actual 2. The government or cabinet consisting of
governments of this sort are established over districts the political leaders of the majority party or
differing greatly in extent and conditions. They are of a coalition who are also members of the
usually administered by military authority, supported legislature, is in effect a committee of the
more or less directly by military force. (Co Kim Chan v. legislature;
Valdez , 75 Phil 113) 3. The government or cabinet has a
By contrast, the Supreme Court unanimously held in Lawyers pyramidal structure at the apex of which is
League for a Better Philippines v. Corazon Aquino that “the
people have made the judgment; they have accepted the
the Prime Minister or his equivalent;
government of President Corazon Aquino which is in effective 93
control of the entire country so that it is not merely a de facto Bernas Primer at 9 (2006 ed.)
government but in fact and law a de jure government. 94
Sinco, Philippine Political Law, p 7 (1954ed).
Moreover, the community of nations has recognized the 95
legitimacy of the present government.” Bernas Primer at 10 (2006 ed.)

I sweat, I bleed, I soar… 15


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

4. The government or cabinet remains in Republic is a representative government run by


power only for so long as it enjoys the the people and for the people.100
support of the majority of the legislature;
5. Both government and legislature are Republican state is a state wherein all
possessed of control devices which each government authority emanates from the people
can demand of the other immediate and is exercised by representatives chosen by the
political responsibility. In the hands of the people.101
legislature is the vote of non-confidence
(censure) whereby government may be B. Essential Features of Republicanism
ousted. In the hands of the government is
the power to dissolve the legislature and The essence of republicanism is representation
call for new elections.96 and renovation. The citizenry selects a corps of
public functionaries who derive their mandate from
Q: What constitutional forms of government the people and act on their behalf, serving for a
have been experienced by the Philippines limited period only, after which they are replaced or
since 1935? retained at the option of their principal.102
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
of the government and not subject to judicial D. “Democratic State”
review. An illustration is the decision of the
President, in the exercise of his diplomatic power,
In the view of the new Constitution, the Philippines
to extend recognition to a newly-established foreign
is not only a representative or republican state but
State or government.99
also shares some aspects of direct democracy
such as “initiative and referendum”. The word
D. State Immunity
democratic is also a monument to the February
Revolution which re-won freedom through direct
“The State cannot be sued without its consent.” action of the people.
(Article XVI, Section 3)
E. Constitutional Authoritarianism
(State immunity will be discussed under Article XVI,
Section 3)
Constitutional authoritarianism as understood and
practiced in the Marcos regime under the 1973
PRINCIPLES
Constitution, was the assumption of extraordinary
powers by the President, including legislative and
III. Republicanism judicial and even constituent powers.103

Section 1. The Philippines is a Q: Is constitutional authoritarianism compatible


democratic and republican State. with a republican state?
Sovereignty resides in the people A: Yes if the Constitution upon which the Executive
and all government authority bases his assumption of power is a legitimate
emanates from them. expression of the people’s will and if the Executive
who assumes power received his office through a
valid election by the people.104
A. Republic

100
Cruz, Philippine Political Law, p. 50 (1995 ed).
96 101
Bernas Primer at 11 (2006 ed.) Bernas Primer at 11 (2006 ed.)
97 102
Bernas Primer at 11 (2006 ed.) Cruz, Philippine Political Law, p. 50 (1995 ed).
98 103
Cruz, Philippine Political Law, p. 29 (1995 ed). Bernas Primer at 12 (2006 ed.)
99 104
Cruz, Philippine Political Law, p. 29 (1995 ed). Bernas Primer at 12 (2006 ed.)

I sweat, I bleed, I soar… 16


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

IV. Renunciation of War/ Incorporation Clause/ Since dualism holds that international law and
Policy of PEJ-FCA with All Nations municipal law belong to different spheres,
international law becomes part of municipal law
only if it is incorporated in to municipal law.105
Section 2. The Philippines
renounces war as an instrument of 2 Doctrine of Incorporation (1997 Bar Question)
national policy, adopts the Every state is, by reason of its membership in the
generally accepted principles of family of nations, bound by the generally
international law as part of law of accepted principles of international law, which
the land and adheres to the policy are considered to be automatically part of its
of peace, equality, justice, freedom, own laws. This is the doctrine of incorporation.106
cooperation, and amity with all
nations. 3. International Law
International Law
A. Renunciation of War Traditional definition: It is a body of rules and
principles of action which are binding upon civilized
“The Philippines renounces war as an instrument of states in their relation to one another.
national policy…” Restatement: The law which deals with the conduct
(Read along Preamble, Article II Secs. 7 &8; Article of states and of international organizations and
XVIII Sec. 25) with their relations inter se, as well as with some
other relations with persons, natural or juridical.
1. Aggressive War
The Philippines only renounces AGGRESSIVE war 4. To What Elements of International Law does
as an instrument of national policy. It does not the principle of incorporation apply?
renounce defensive war. Since treaties become part of Philippine law only
by ratification, the principle of incorporation applies
2. Philippines Renounces Not Only War only to customary law and to treaties which
As member of United Nations, the Philippines does have become part of customary law. 107
not merely renounce war but adheres to Article 2(4)
of the UN charter which says: “ All Members shall 5. Effect of Incorporation Clause
refrain in their international relations from the International law therefore can be used by
threat or use of force against the territorial Philippine courts to settle domestic disputes in
integrity or political independence of any state, or much the same way that they would use the Civil
in any other manner inconsistent with Purposes of Code or the Penal Code and other laws passed by
the Untied Nations.” Congress.108

3. Historical Development of the Policy C. Policy of PEJ-FCA with All Nations


Condemning or Outlawing War in the “The Philippines…adheres to the policy of peace,
International Scene: equality, justice, freedom, cooperation, and amity
1. Covenant of the League of Nations- with all nations.”
provided conditions for the right to go to war.
2. Kellogg-Briand Pact of 1928- also known as Q: Does the affirmation of amity will all nations
mean automatic diplomatic recognition of all
the General Treaty for the Renunciation of
nations?
War, ratified by 62 states, which forbade war
A: No. Amity with all nations is an ideal to be aimed
as “an instrument of national policy.”
at. Diplomatic recognition, however, remains a
3. Charter of the United Nations- Prohibits the matter of executive discretion.109
threat or use of force against the territorial
integrity or political independence of a State. V. Supremacy of Civilian Authority
B. Incorporation Clause
Section 3. Civilian Authority is, at
“The Philippines…adopts the generally accepted all times supreme over the military.
principles of international law as part of law of the The Armed Forces of the
land…”
105
Bernas Commentary, p 61 (2003 ed).
1. Acceptance of Dualist View 106
Cruz, Philippine Political Law, p. 55 (1995 ed).
Implicit in this provision is the acceptance of the 107
Bernas Commentary, p 61 (2003 ed).
dualist view of legal systems, namely that 108
Bernas Commentary, p 61 (2003 ed).
domestic law is distinct from international law. 109
Bernas Primer at 13 (2006 ed.)

I sweat, I bleed, I soar… 17


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

Philippines is the protector of the Q: Is the provision an assertion of the political


people and the State. Its goal is to role of the military?
secure the sovereignty of the State A: No. The phrase “protector of the people”
and integrity of the national was not meant to be an assertion of the
territory. political role of the military. The intent of the
phrase “protector of the people” was rather to
A. Civilian Authority make it as corrective to military abuses
experienced during martial rule.117
That civilian authority is at all times supreme over
the military is implicit in a republican system.110 Still,
Q: Does this mean that the military has no
it was felt advisable to expressly affirm this
military 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: Does this mean that civilian officials are superior Q: Is the PNP covered by the same mandate under
to military officials? Article II, Section 3?
A: Civilian officials are superior to military official A: No. This provision is specifically addressed to
only when a law makes them so.113 the AFP and not to the PNP, because the latter is
separate and distinct from the former. (Record of
B. Armed Forces of the Philippines the Constitutional Commission, Volume V, p. 296;
Manalo v. Sistoza, 312 SCRA 239)
1. Reasons [in the constitution] for the
existence of the armed forces VI. Defense of State
(1) As protector of the people and the State
(2) To secure the sovereignty of the State and the Section 4. The prime duty of the
integrity of the national territory.114 government is to serve and protect
the people. The Government may
(3) They may be called to prevent or suppress call upon the people to defend the
lawless violence, invasion or rebellion.115 state and, in the fulfillment thereof,
(4) All Members of the armed forces shall take an all citizens may be required, under
oath or affirmation to uphold and defend the conditions provided by law, to
Constitution.116 render personal military or civil
service.
2. Composition
The Armed Forces of the Philippines shall be
composed of a citizen armed force which shall VII. Peace and Order
undergo military training and serve as may be
provided by law. (Article XVI, Section 4)
Section 5. The maintenance of
3. On Politics peace and order, the protection of
life, liberty and property, and the
The armed forces shall be insulated from partisan promotion of general welfare are
politics. No member of the military shall engage essential for the enjoyment by all the
directly or indirectly in any partisan political activity, people of the blessings of
except to vote. (Article XVI, Section 5) democracy.

Section 5 is not a self-executing provision. It is


merely a guideline for legislation. (Kilosbayan v.
110
Cruz, Philippine Political Law, p. 67 (1995 ed). Morato)
111
Cruz, Philippine Political Law, p. 67 (1995 ed). Right to bear arms. The right to bear arms is a
112
Article VII, Section 18. statutory, not a constitutional right. The license to
113 carry a firearm is neither a property nor a property
Bernas Primer at 13 (2006 ed.)
114
Article II, Section 3.
115 117
Article VII, Section 18. See IBP v. Zamora. Bernas Commentary, p 66 (2003 ed).
116 118
Article XVI, Seciton 5. Bernas Commentary, p 66 (2003 ed).

I sweat, I bleed, I soar… 18


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

right. Neither does it create a vested right. Even if it religious groups and mission boards. (Article
were a property right, it cannot be considered XIV, Section 4(2)).
absolute as to be placed beyond the reach of
police power. The maintenance of peace and order,
and the protection of the people against violence STATE POLICIES
are constitutional duties of the State, and the right
to bear arms is to be construed in connection and IX. Independent Foreign Policy
in harmony with these constitutional duties.
(Chavez v. Romulo, 2004)
Section 7. The State shall pursue
VIII. Separation of Church and State an independent foreign policy. In its
relations with other states the
paramount consideration shall be
Section 6. The separation of national sovereignty, territorial
Church and State shall be integrity, national interest, and the
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
B. Who is Prohibited from Interfering consistent with the national
interest, adopts and pursues a
Doctrine cuts both ways. It is not only the State that is policy of freedom from nuclear
prohibited from interfering in purely ecclesiastical weapons in its territory.
affairs; the Church is likewise barred from meddling in
purely secular matters. 120(Cruz) A. Scope of Policy

C. Separation of Church and State is Reinforced by: The policy includes the prohibition not only of the
1. Freedom of Religion Clause (Article III, Section possession, control, and manufacture of nuclear
5) weapons but also nuclear arms tests.
2. Religious sect cannot be registered as a
political party (Article IX-C, Section 2(5)) B. Exception to the Policy
3. No sectoral representatives from the religious
Exception to this policy may be made by the
sector. (Article VI, Section 5 (2))
political department but it must be justified by the
4. Prohibition against appropriation against demands of the national interest.122
sectarian benefit. (Article VI, 29(2)).
The policy does not prohibit the peaceful use of
D. Exceptions nuclear energy.123
1. Churches, parsonages, etc. actually, directly
and exclusively used for religious purposes C. Implication of the Policy for the Presence of
shall be exempt from taxation. (Article VI, American Troops
Section 28(3)).
2. When priest, preacher, minister or dignitary is Any new agreement on bases or the presence of
assigned to the armed forces, or any penal the troops, if ever there is one, must embody the
institution or government orphanage or basic policy of freedom from nuclear weapons.
leprosarium, public money may be paid to Moreover, it would be well within the power of
them. (Article VI, Section 29(2)) government to demand ocular inspection and
3. Optional religious instruction for public removal of nuclear arms.124
elementary and high school students. (Article
XIV, Section 3(3)).
4. Filipino ownership requirement for education 121
institutions, except those established by Bernas Commentary, p 72 (2003 ed).
122
Bernas Primer at 15 (2006 ed.)
119 123
Cruz, Philippine Political Law, p. 65 (1995 ed). Bernas Primer at 15 (2006 ed.)
120 124
Cruz, Philippine Political Law, p. 65 (1995 ed). Bernas Primer at 15 (2006 ed.)

I sweat, I bleed, I soar… 19


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

XI. Just and Dynamic Social Order be passed to implement them. (Basco v. PAGCOR,
197 DCRA 52)127

Section 9. The State shall


promote a just and dynamic social XIV. Family; Rearing the Youth
order that will ensure the prosperity
and independence of the nation
and free the people from poverty Section 12. The State recognizes
through policies that provide the sanctity of family life and shall
adequate social services, promote protect and strengthen the family
full employment, a raising standard as a basic autonomous social
of living, and an improved quality of institution. It shall equally protect
life for all. the life of the mother and the life of
the unborn from conception. The
natural and primary right and duty
XII. Social Justice of parents in rearing of the youth
for civic efficiency and the
development of moral character
Section 10. The State shall shall receive the support of the
promote social justice in all phases government.
of national development
Section 13. The State recognizes
A. Definition of Social Justice the vital role of the youth in nation-
building and shall promote and
Social Justice is neither communism, nor protect their physical moral,
despotism, nor atomism, nor anarchy, but the spiritual, intellectual, and social
humanization of the laws and the equalization well-being. It shall inculcate in the
of the social and economic forces by the State youth patriotism and nationalism,
so that justice in its rational and objectively and encourage their involvement in
secular conception may at least be 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

It accepts the principle that the family is anterior to


XIII. Respect for Human Dignity the State and not a creature of the State. It protects
the family from instrumentalization by the State.129
Section 11. The State values the
C. Purpose of Assertion of Protection of the Unborn
dignity of every human person and
guarantees full respect for human
rights. The purpose of the assertion that the protection
begins from the time of conception is to prevent
the State form adopting the doctrine in Roe v.
The concretization of this provision is found
Wade which liberalized abortion laws up to the
principally in the Bill of Rights and in the human
sixth month of pregnancy by allowing abortion any
rights provision of Article XIII.126
time during the first six months of pregnancy
provided it can be done without danger to the
Facts: Petitioners questioned the constitutionality
mother.
of PD 1869, which created the PAGCOR and
authorized it to operate gambling casinos, on the
D. Legal Meaning of the Protection Guaranteed for
ground that it violated Sections 11, 12 and 13 of
the Unborn.
Article II of the Constitution.
Held: These provisions are merely statements of
policies which are not self-executing. A law has to
127
Jacinto Jimenez, Political Law Compendium, 4 (2006 ed.)
125 128
Bernas Primer at 16 (2006 ed.) Bernas Commentary, p 84 (2003 ed).
126 129
Bernas Commentary, p 83 (2003 ed). Bernas Primer at 16 (2006 ed.)

I sweat, I bleed, I soar… 20


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

1. This is not an assertion that the unborn is a existing inequalities. The general idea is for the law
legal person. 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 can contracts marriage , runs afoul of the test of, and
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
as a “bona fide qualification” where the particular
In the matter of education, the primary and natural
requirements of the job would demand the same,
right belongs to the parents. The State has a
discrimination against married women cannot be
secondary and supportive role.
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 Section 15. The State shall protect
Constitution. (Meyer v. Nebraska) and promote the right to health of
the people and instill health
Public School. The State cannot require children consciousness among them.
to attend only public schools before they reach a
certain age. The child is not a mere creature of the
The provisions which directly or indirectly pertain to
State. Those who nurture him and direct his destiny
the duty of the State to protect and promote the
have the right to recognize and prepare him.
people’s right to health and well-being are not self-
(Pierce v. Society of Sisters)
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 Section 16. The State shall protect
upbringing. Only those interests of the State “of the and advance the right of the people to
highest order and those not otherwise served can a balanced and healthful ecology in
overbalance” the primary interest of parents in the accord with the rhythm and harmony
religious upbringing of their children. (Wisconsin v. of nature.
Yoder)
Section 16 provides for enforceable rights. Hence,
Parens Patriae. However, as parens patriae, the
appeal to it has been recognized as conferring
State has the authority and duty to step in where
“standing” on minors to challenge logging policies
parents fail to or are unable to cope with their
of the government. (Oposa v. Factoran)
duties to their children.
While the right to a balanced and healthful
XV. Women ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill
Section 14. The State recognizes of Rights, it does not follow that it is less important
the role of women in nation- than any of the civil and political rights enumerated
building, and shall ensure the in the latter. Such a right belongs to a different
fundamental equality before the law category of rights for it concerns nothing less than
of women and men. self-preservation and self-perpetuation. These
basic rights need not even be written in the
Constitution for they are assumed to exist from the
The provision is so worded as not to automatically
inception of humankind. (Oposa v. Factoran,1993)
dislocate the Civil Code and the civil law
jurisprudence on the subject. What it does is to
131
give impetus to the removal, through statutes, of Bernas Primer at 18 (2006 ed.)
132
Tondo Medical Center Employees v. CA. G.R. No.
130
Bernas Primer at 17 (2006 ed.) 167324, July 17, 2007.

I sweat, I bleed, I soar… 21


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

It shall protect the rights of workers


On this basis too, the SC upheld the empowerment and promote their welfare.
of the Laguna Lake Development Authority (LLDA)
to protect the inhabitants of the Laguna Lake Area “A primary social economic force” means that the
from the deleterious effects of pollutants coming human factor has primacy over non-human factors
from garbage dumping and the discharge of of production.
wastes in the area as against the local autonomy
claim of local governments in the area. (LLDA v. Protection to labor does not indicate promotion of
CA, 1995) employment alone. Under the welfare and social
justice provisions of the Constitution, the promotion
XVIII. Education, Science and Technology of full employment, while desirable, cannot take a
backseat to the government’s constitutional duty to
provide mechanisms for the protection of our
Section 17. The State shall give workforce, local or overseas. (JMM Promotion and
priority to education, science and Management v. CA, 260 SCRA 319)
technology, arts, culture and sports
to foster patriotism, nationalism, What concerns the Constitution more paramountly
accelerate social progress, and is employment be above all, decent, just and
promote total human liberation and humane. It is bad enough that the country has to
development. send its sons and daughters to strange lands,
(See Article XIV, Section 2) because it cannot satisfy their employment needs
at home. Under these circumstances, the
This does not mean that the government is not free Government is duty bound to provide them
to balance the demands of education against other adequate protection, personally and economically,
competing and urgent demands. (Guingona v. while away from home. (Philippine Association of
Carague) Service Exporters v. Drilon, 163 SCRA 386)
In Philippine Merchant Marine School Inc. v. CA, XX. Self-Reliant and Independent Economy
the Court said that the requirement that a school
must first obtain government authorization before
operating is based on the State policy that Section 19. The State shall
educational programs and/or operations shall be of develop a self-reliant and
good quality and, therefore, shall at least satisfy independent national economy
minimum standards with respect to curricula, effectively controlled by Filipinos.
teaching staff, physical plant and facilities and
administrative and management viability. This is a guide for interpreting provisions on
national economy and patrimony. Any doubt must
While it is true that the Court has upheld the be resolved in favor of self-reliance and
constitutional right of every citizen to select a independence and in favor of Filipinos.
profession or course of study subject to fair,
reasonable and equitable admission and academic A petrochemical industry is not an ordinary
requirements, the exercise of this right may be investment opportunity, it is essential to national
regulated pursuant to the police power of the State interest. (The approval of the transfer of the plant
to safeguard health, morals, peace, education, from Bataan to Batangas and authorization of the
order, safety and general welfare. change of feedstock from naptha only to naptha
Thus, persons who desire to engage in the learned and/or LPG do not prove to be advantageous to
professions requiring scientific or technical the government. This is a repudiation of the
knowledge may be required to take an examination independent policy of the government to run its
as a prerequisite to engaging in their chosen own affairs the way it deems best for national
careers. This regulation assumes particular interest.) (Garcia v. BOI)
pertinence in the field of medicine, in order to
protect the public from the potentially deadly effects The WTO agreement does not violate Section 19 of
of incompetence and ignorance. (PRC v. De Article II, nor Sections 10 and 12 of Article XII,
Guzman, 2004) because said sections should be read and
understood in relation to Sections 1 and 3, Article
XIX. Labor XII, which requires the pursuit of a trade policy that
“serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of
Section 18. The State affirms labor equality and reciprocity.” (Tanada V. Angara)
as a primary social economic force.

I sweat, I bleed, I soar… 22


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

XXI. Private Sector and Private Enterprise organizations in national development should be
encouraged.133

Section 20. The State recognizes XXV. Communication and Information


the indispensable role of the private
sector, encourages private
enterprise, and provides incentives Section 24. The State recognizes
to needed investments. the vital role of communication and
information in nation-building.
Section 20 is an acknowledgment of the (See Article XVI, Sections 10-11; Article XVIII,
importance of private initiative in building the Section 23)
nation. However, it is not a call for official
abdication of duty to citizenry. (Marine Radio The NTC is justified to require PLDT to enter
Communications Association v. Reyes) into an interconnection agreement with a
cellular mobile telephone system. The order
Although the Constitution enshrines free enterprise was issued in recognition of the vital role of
as a policy, it nevertheless reserves to the communications in nation-building and to
Government the power to intervene whenever ensure that all users of the public
necessary for the promotion of the general welfare, telecommunications service have access to all
as reflected in Sections 6 and 19 of Article XII. other users of service within the Philippines.
(PLDT v. NTC)
XXII. Comprehensive Rural Development
XXVI. Local Autonomy
Section 21. The State shall
promote comprehensive rural Section 25. The State shall ensure
development and agrarian the autonomy of local
program. governments.
(See Article XIII, Sections 4-10) (See Article X)

Comprehensive rural development includes not Local autonomy under the 1987 Constitution simply
only agrarian reform. It also encompasses a broad means “decentralization” and does not make the
spectrum of social, economic, human, cultural, local governments sovereign within the State or an
political and even industrial development. imperium in imperio. (Basco v. PAGCOR)

XXIII. Indigenous Cultural Communities Decentralization of administration is merely a


delegation of administrative powers to the local
government unit in order to broaden the base of
Section 22. The State recognizes governmental powers. Decentralization of power is
and promotes the rights of abdication by the national government of
indigenous cultural communities governmental powers.
within the framework of national
unity and development. Even as we recognize that the Constitution
(See Article VI Section 5(2); Article XII, Section 5; guarantees autonomy to local government units,
Article XIV, Section 17) the exercise of local autonomy remains subject to
the power of control by Congress and the power of
XXIV. Independent People’s Organizations; general supervision by the President. (Judge
Volunteerism Dadole v. Commission on Audit, 2002)

XXVII. Equal Access to Opportunities


Section 23. The State shall
encourage non-governmental,
community-bases, or sectoral Section 26. The State shall
organizations that promote the guarantee equal access to
welfare of the nation. opportunities for public service, and
(See Article XIII, Sections 15-16) prohibit political dynasties as may
be defined by law.
The provision recognizes the principle that (See Article VII, Section 13; Article XIII, Sections 1-
volunteerism and participation of non-governmental 2)

133
Bernas Commentary, p 96(2003 ed).

I sweat, I bleed, I soar… 23


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

Philippines because it divided the


Purpose. The thrust of the provision is to impose Philippines into three states.
on the sate the obligation of guaranteeing equal 2. It violates Section 1, Article II of the
access to public office.134 Constitution which provides for the
establishment of democratic and republic
There is no constitutional right to run for or hold states by replacing it with three states
public office. What is recognized is merely a organized as a confederation.
privilege subject to limitations imposed by law.
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
and development.
XXVIII. Public Service
4. It violates Section 15, Article X of the
Constitution, which, provides for
Section 27. The State shall autonomous regions in Muslim Mindanao
maintain honesty and integrity in and in the cordilleras within the framework
public service and take positive and of national sovereignty as well as
effective measures against graft territorial integrity of the Republic of the
and 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
recognized as privileged in nature. (Akbayan v.
Aquino, 2008)

xxx

(1996 Bar Question)


A law was passed dividing the Philippines into
three regions (Luzon, Visayas and Mindanao)
each constituting an independent state except
on matters of foreign relations, national
defense and national taxation, which are vested
in the Central Government. Is the law valid?

The law dividing the Philippines into three regions


each constituting an independent state and vesting
in a central government matters of foreign
relations, national defense and national taxation is
unconstitutional.
1. It violates Article I, which guarantees the
integrity of the national territory of the

134
Bernas Commentary, p 99 (2003 ed).

I sweat, I bleed, I soar… 24


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

B. Where Vested
LEGISLATIVE DEPARTMENT Legislative power is vested in Congress except to
the extent reserved to the people by the provision
on initiative and referendum.
OUTLINE OF ARTICLE VI
C. Classification of legislative power
I. Legislative Power (§1) (1) Original legislative power- possessed by the
II. Powers of Congress sovereign people.
III. Congress (§§ 2-10) (2) Derivative legislative power- that which has been
IV. Privileges of Members (§ 11) delegated by the sovereign people to the legislative
bodies. (Kind of power vested in Congress)
V. Duty to Disclose, Disqualifications and
Prohibitions (§§ 12-14)
(3) Constituent- The power to amend or revise the
constitution
VI. Internal Government of Congress (§§ (4) Ordinary- Power to pass ordinary laws.
15-16)
VII. Electoral Tribunal, CA (§§17-19) Legislative power exercised by the people. The
VIII. Records and Books of Accounts (§ 20) people, through the amendatory process, exercise
constituent power, and through initiative and
IX. Inquiries/ Oversight function (§§ 21-22) referendum, ordinary legislative power.
X. Emergency Powers (§ 23)
XI. Bills/ Legislative Process (§ 24,26,27) D. Scope of Legislative power.
XII. Power of the Purse/Fiscal Powers (§§
Congress may legislate on any subject matter.
28,29,25)
(Vera v. Avelino) In other words, the legislative
XIII. Other Prohibited Measures (§§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
Limitations on Legislative Power
i. Bill of Rights137
Non-delegability of Legislative power ii. On Appropriations138
Rationale of the Doctrine of Non-delegability iii. On Taxation139
Valid delegation of legislative powers
Delegation of rule-making power 135
Refer to the subject matter of legislation. These are limitations on
Requisites for a valid delegation of rule-making the content of laws.
power 136
Formal limitations refer to the procedural requirements to be
Sufficient Standards complied with by Congress in the passage of the bills. (Sinco, Phil.
Examples of Invalid of Delegation Political Law)
137
Bill of Rights
Section 1. The Legislative power o No law shall be passed abridging freedom of speech, of
shall be vested in the Congress of expression etc (art. 3 §4)
the Philippines which shall consist o No law shall be made respecting an establishment of religion
of a Senate and a House of (art. 3 §5)
o No law impairing the obligation of contracts shall be passed.
Representatives, except to the
(art 3 §10)
extent reserved to the people by o No ex post facto law or bill of attainder shall be enacted.
the provision on initiative and (art. 3 §22)
referendum. 138
On Appropriations
o Congress cannot increase appropriations by the President
A. Definition of Legislative Power (art. 6 §25)
o (art. 6 29(2)
Legislative power is the authority to make laws and
139
to alter or repeal them. On Taxation
o (art. 6 §28 and 29(3))

I sweat, I bleed, I soar… 25


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

iv. On Constitutional Appellate Some commentators include (a) delegation to


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

I sweat, I bleed, I soar… 26


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

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 a
– it must set therein the policy to be carried out 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 order” as a
delegate must conform in the performance of
standard. An exception to the general rule,
his functions. 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 efficiency” as a
essence of every law. standard. (Cervantes vs. Auditor General)
o “Of a moral, educational, or amusing and harmless
Importance of Standard. Without standard, there character” as a standard. (Mutual Film Co. vs.
Industrial Commission of Ohio)
would be no means to determine with reasonable
o “To maintain monetary stability promote a rising level
certainty whether the delegate has acted within or of production, employment and real income” as a
beyond the scope of his authority. Hence, he could standard. (People vs. Jollife)
thereby arrogate upon himself the power, not only o “Adequate and efficient instruction” as standard.
to make law, but also to unmake it, by adopting (Philippine Association of Colleges and Universities
measures inconsistent with the end sought to be vs. Sec. of Education.
attained by the Act of Congress. (Pelaez v. Auditor o “Justice and equity and substantial merits of the
General) case” as a standard. The discretionary power thus
conferred is judicial in character and does not
K. Standards infringe upon the principle of separation of powers
1. Need not be explicit the prohibition against the delegation of legislative
2. May be found in various parts of the statute function (International Hardwood and Veneer Co. vs.
Pangil Federation of Labor)
3. May be embodied in other statutes of the same
o “Fair and equitable employment practices” as a
statute standard. The power of the POEA in requiring the
model contract is not unlimited as there is a
1. A legislative standard need not be explicit or sufficient standard guiding the delegate in the
formulated in precise declaratory language. It can exercise of the said authority. (Eastern Shipping
be drawn from the declared policy of the law and Lines Inc. vs. POEA)
from the totality of the delegating statute. (Osmena o “As far as practicable”, “decline of crude oil prices in
v. Orbos) It can be implied from the policy and the world market” and “stability of the peso
purpose of the law (Agustin v. Edu) exchange rate to the US dollar” as standards. The
dictionary meanings of these words are well settled
2. A legislative standard may be found in various and cannot confuse men of reasonable intelligence.
parts of the statute. (Tablarin v. Guttierez) (However, by considering another factor to hasten
full deregulation, the Executive Department rewrote
the standards set forth in the statute. The Executive
3. A legislative standard need not be found in the is bereft of any right to alter either by subtraction or
law challenged and may be embodied in other addition the standards set in the statute.) (Tatad vs.
statues on the same subject. (Chiongbayan v Sec of Energy)
Orbos)
L. Examples of invalid delegation
Q: Petitioners questioned the grant of the o Where there is no standard that the officials must
powers to mayors to issue permits for public observe in determining to whom to distribute the
assemblies in the Public Assembly Act on confiscated carabaos and carabeef, there is thus an
the ground that it constituted an undue invalid delegation of legislative power. (Ynot v. IAC)
delegation of legislative power. There is o Where a provision provides that the penalty would
however a reference to “imminent and grave be a fine or 100 pesos OR imprisonment in the
danger of a substantive evil: in Section 6(c). discretion of the court without prescribing the
Decide. minimum and maximum periods of imprisonment, a
A: The law provides a precise and sufficient penalty imposed based thereon is unconstitutional. It
standard, the clear and present danger test is not for the courts to fix the term of imprisonment
where no points of reference have been provided by
in Section 6(a). The reference to imminent
the legislature. (People v. Dacuycuy)

I sweat, I bleed, I soar… 27


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

o Where the statute leaves to the sole discretion of the (7) Power to act as Board of Canvassers in election
Governor-General to say what was and what was of President146 (art 7 §4)
not “any cause” for enforcing it, the same is an (8) Power to call a special election for President
invalid delegation of power. The Governor-General and Vice-President. (art. 7 §10)
cannot by proclamation, determine what act shall
constitute a crime or not. That is essentially a
(9) Power to judge President’s physical fitness to
legislative task. (US vs. Ang Tang) discharge the functions of the Presidency (art.
o Where a statute requires every public utility “to 7§11)
furnish annually a detailed report of finances and (10) Power to revoke or extend suspension of the
operations in such form and containing such matter privilege of the writ of habeas corpus or
as the Board may, from time to time, by order, declaration of martial law. (art. 7 §18)
prescribe”, it seems that the legislature simply (11) Power to concur in Presidential amnesties.
authorized the Board to require what information the Concurrence of majority of all the members of
Board wants. Such constitutes an unconstitutional
Congress. (art.7 §19)
delegation of legislative power. (Compana General
de Tabacos de Filipinas vs. Board of Public Utility (12) Power to concur in treaties or international
Commissioners) agreements. Concurrence of at least 2/3 of all
o Where the legislature has not made the operation
the members of the Senate.(art.7 §21)
(13) Power to confirm certain
(execution) of a statute contingent upon specified
facts or conditions to be ascertained by the appointments/nominations made by the
provincial board but in reality leaves the entire President (art.7 §9, art.7§16)
matter for the various provincial boards to (14) Power of Impeachment (art.11§2)
determine, such constitute an unconstitutional (15) Power relative to natural resources147 (art. 12
delegation of legislative power. A law may not be §2)
suspended as to certain individuals only, leaving the (16) Power of internal organization
law to be enjoyed by others. (People vs. Vera) Election of officers
o The authority to CREATE municipal corporations is Promulgate internal rules
essentially legislative in nature. Disciplinary powers (art.6 §16)

II. POWERS OF CONGRESS Note: Members of Congress have immunity from


arrest and parliamentary immunity.148 (art 6
§§11&12)
A. Inherent Powers
B. Express Powers
III. Congress
A. INHERENT POWERS
(1) Police power Composition of Congress
(2) Power of eminent domain Bicameralism v. Unicameralism
(3) Power of taxation Composition of Senate
(4)Implied Powers (Contempt Power)143 Qualification of Senators
Senators’ Term of Office / Staggering of Terms
B. EXPRESS POWERS Composition of HR
Qualification of Members of HR
(1) Legislative Power (art 6 sec1) Domicile
(a) Ordinary- power to pass ordinary laws Property Qualification
(b) Constituent144- power to amend and or Term of Office of Representatives
revise the Constitution Party-List System
(2) Power of the Purse145 (art. 6§25) Legislative Districts
(3) Power of Taxation (art. 6 §28(3), art. 14 §4(3), Election
art 6, §29(4)) Salaries
(4) Investigatory Power (art. 6 §21)
(5) Oversight function (art. 6 §22) A. Composition of Congress
(6) Power to declare the existence of state of war
(art. 6 §23(1)) The Congress of the Philippines which shall consist
of a Senate and a House of Representatives. (art 6
§1)
143
Page 12 of 2008 UP Bar Ops Reviewer. 146
This function is non-legislative. (Pimentel v. Joint Committee on
144
Propose amendment to or revision of the Constitution (art 17 Congress. June 22, 2004)
§1)Call for a constitutional convention (art 17 §3) 147
Antonio B. Nachura, Outline/Reviewer in Political Law (2006
145 ed.)
No money shall be paid out of the Treasury except in pursuance
148
of an appropriation made by law. (art 6 §29(1)) The form, content, Privilege from attest is not given to Congress as a body, but rather
and manner of preparation of budget shall be prescribed by law. one that is granted particularly to each individual member of it.
(art 6 §25) (Coffin v. Coffin, 4 Mass 1)

I sweat, I bleed, I soar… 28


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

less than two years immediately


B. Bicameralism v. Unicameralism preceding 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 the
upper house and the second the lower house. election
(3) Able to read and write
Advantages of Unicameralism. (4) Registered voter
1. Simplicity of organization resulting in (5) Resident of the Philippines for not less than
economy and efficiency 2 years immediately preceding the day of
2. Facility in pinpointing responsibility for election.
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 legislation Staggering of Terms
3. Makes the legislature less susceptible to Reason for Staggering
control by executive
4. Serves as training ground for national Section 4. The term of office of the
leaders.149 Senators shall be six years and
shall commence, unless otherwise
C. Composition of Senate provided by law, at noon on the
thirtieth day of June next following
Section 2. The Senate shall be their election.
composed of twenty-four senators No Senator shall serve for more
who shall be elected at large by the than two consecutive terms.
qualified voters of the Philippines, Voluntary renunciation of the office
as may be provided by law. for any length of time shall not be
considered as an interruption in the
Elected at large, reason. By providing for a continuity of his service for the full
membership elected at large by the electorate, this term for which he was elected.
rule intends to make the Senate a training ground
for national leaders and possibly a springboard for 1. Term. The term of office of the Senators shall be
the Presidency. The feeling is that the senator, 6 years.
having national rather than only a district
constituency, will have a broader outlook of the 2. Commencement of term. The term of office of
problems of the country instead of being restricted the Senators shall commence on 12:00 noon of
by parochial viewpoints and narrow interests. With June 30 next following their election. (unless
such a perspective, the Senate is likely to be more otherwise provided by law)
circumspect and broad minded than the House of
Representatives.150 3. Limitation. A Senator may not serve for more
than two consecutive terms. However, they may
D. Qualifications of a Senator serve for more than two terms provided that the
terms are not consecutive.
Section 3. No person shall be a
4. Effect of Voluntary Renunciation. Voluntary
senator unless he is a natural-born
renunciation of office for any length of time shall
citizen of the Philippines, and, on
not be considered as an interruption in the
the day of the election, is at least
continuity of his service for the full term for which
thirty-five years of age, able to read
he was elected. (art. 6 § 4)
and write, a registered voter, and a
resident of the Philippines for not
5. Staggering of Terms. The Senate shall not at
any time be completely dissolved. One-half of the
membership is retained as the other half is
149
Bernas, Primer p 224, 2006 ed. replaced or reelected every three years.
150
Cruz, Phlippine Political Law.

I sweat, I bleed, I soar… 29


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

6. Reason for Staggering. The continuity of the (2) At least 25 years of age on the day of the
life of the Senate is intended to encourage the election
maintenance of Senate policies as well as (3) Able to read and write
guarantee that there will be experienced members (4) A registered voter in the district in which he
who can help and train newcomers in the shall be elected
discharge of their duties.151 (5) A resident of the district in which he shall be
elected for a period not less than 1 year
F. Composition of House of Representatives immediately preceding the day of the
election.
Section 5. (1) The House of
Representatives shall be H. Domicile
composed of not more than two
hundred and fifty members, unless Domicile
otherwise fixed by law, who shall Residence as a qualification means “domicile”.
be elected from legislative districts Normally a person’s domicile is his domicile of
apportioned among the provinces, origin.
cities, and the Metropolitan Manila
area in accordance with the If a person never loses his or her domicile, the one
number of their respective year requirement of Section 6 is not of relevance
inhabitants, and on the basis of a because he or she is deemed never to have left the
uniform and progressive ratio, and place. (Romualdez-Marcos v. COMELEC)
those who, as provided by law,
shall be elected through a party-list A person may lose her domicile by voluntary
system of registered national, abandonment for a new one or by marriage to a
regional, and sectoral parties or husband (who under the Civil Code dictates the
organizations. wife’s domicile).

Composition. The composition of the House of Change of domicile


Representatives shall be composed of not more To successfully effect a change of domicile, there
than 250 members unless otherwise fixed by law. must be:
o Physical Presence-Residence or bodily
Representatives shall be elected from legislative presence in the new locality (The change of
districts and through party-list system. residence must be voluntary)
o Animus manendi -Intention to remain in the
a) District representatives new locality (The purpose to remain in or at
b) Party-list representatives the domicile of choice must be for an
c) Sectoral representatives (these existed only indefinite period of time)
until 1998) o Animus non revertendi-Intention to
abandon old domicile
G. Qualification of Representatives
A lease contract does not adequately support a
Section 6. No person shall be a change of domicile. The lease does not constitute a
member of the House of clear animus manendi. (Domino v. COMELEC)
Representatives unless he is a However a lease contract coupled with affidavit of
natural born citizen of the the owner where a person lives, his marriage
Philippines and, on the day of the certificate, birth certificate of his daughter and
election, is at least twenty-five various letter may prove that a person has
years of age, able to read and changed his residence. (Perez v. COMELEC)
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
period of not less than one year justice provision of the Constitution. Such will also
immediately preceding the day of be adding qualifications provided by the
the election. Constitution.

Qualifications of District Representatives: J. Term of Office of Representatives


(1) Natural-born citizen of the Philippines
Section 7. The members of the
151
Cruz, Philippine Political Law. House of Representatives shall be

I sweat, I bleed, I soar… 30


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

elected for a term of three years (2) The party-list representatives


which shall begin, unless otherwise shall constitute twenty per centum
provided by law, at noon on the of the total number of
thirtieth day of June next following representatives including those
their election. under the party-list. For three
No member of the House consecutive terms after the
Representatives shall serve for ratification of this Constitution, one-
more than three consecutive terms. half of the seats allocated to party-
Voluntary renunciation of the office list representatives shall be filled,
for any length of time shall not be as may be provided by law, by
considered as an interruption in the selection or election from the labor,
continuity of his service for the full peasant, urban poor, indigenous
term for which he was elected. cultural communities, women,
youth, and such other sectors as
Term v. Tenure. Term refers to the period during may be provided by law, except the
which an official is entitled to hold office. Tenure religious sector.
refers to the period during which the official actually
holds the office. 1. Party-list System. (RA 7941) The party-list
system is a mechanism of proportional
The term of office of Representatives shall be 3 representation in the election of representatives of
years. The term of office of Representatives shall the House of Representatives from national,
commence on 12:00noon of June 30 next following regional, and sectoral parties or organizations or
their election. (unless otherwise provided by law) coalitions thereof registered with the Commission
on Elections.
A Representative may not serve for more than 3
consecutive terms. However, he may serve for Reason for party-list system. It is hoped that the
more than 3 terms provided that the terms are not system will democratize political power by
consecutive. (1996 Bar Question) encouraging the growth of a multi-party system.

Why three years? One purpose in reducing the 2. Party-list representatives


term for three years is to synchronize elections, Ceiling. “The party-list representatives shall
which in the case of the Senate are held at three- constitute 20% of the total number of
year intervals (to elect one-half of the body) and in representatives.” Section 5(2) of Article VI is not
the case of the President and Vice-President every mandatory. It merely provides a ceiling for party-list
six years.152 seats in Congress. (Veterans Federation Party v.
COMELEC)
Voluntary renunciation of office for any length of
time shall not be considered as an interruption in The 2% threshold requirement and the 3 seat-limit
the continuity of his service for the full term for provided in RA 7941 are valid. Congress was
which he was elected. vested with broad power to define and prescribe
the mechanics of the party-list system of
Abandonment of Dimaporo. The case of representation. Congress wanted to ensure that
Dimaporo v. Mitra which held that “filing of COC for only those parties, organizations and coalitions
a different position is a voluntary renunciation” has having sufficient number of constituents deserving
been abandoned because of the Fair Elections Act. of representation are actually represented in
Congress. (Veterans Federation Party v.
Farinas case. The ruling case now is Farinas v. COMELEC)
Executive Secretary which held that “filing of COC
is not constitutive of voluntary renunciation for Computation
elected officials.” The Court reiterated that “the prevailing formula for the
computation of additional seats for party-list winners is
K. Party List System the formula stated in the landmark case of Veterans.”
Party-list system CIBAC v COMELEC, G.R. No. 172103 (2007)
Party-list Representatives
Guidelines No. of votes of
Parties or organizations disqualified concerned party No. of Additional
Qualifications of a party-list nominee additional seats Seats for
____________ allocated to the=concerned
Section 5. _ xfirst party party

152
Cruz, Philippine Political law.

I sweat, I bleed, I soar… 31


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

(4) Able to read and write


No. of votes (5) A bona fide member of the party or organization
of first party which he seeks to represent for at least 90
days preceding the day of election
(6) At least 25 years of age. (Ang Bagong Bayani v.
COMELEC)
3. Guidelines on what organizations may apply Political Parties. Political parties may participate
in the party-list system: in the party-list system (as long as they comply with
(1) The parties or organizations must represent the guidelines in Section 5 of RA 7941.) (Ang
the marginalized and underrepresented in Bagong Bayani v. COMELEC)
Section 5 of RA 7941;
(2) Political parties who wish to participate must Section 10 of RA 7941 provides that the votes cast
comply with this policy; for a party which is not entitled to be voted for the
(3) The religious sector may not be represented; party-list system should not be counted. The votes
(4) The party or organization must not be they obtained should be deducted from the
disqualified under Section 6 of RA 7941; canvass of the total number of votes cast for the
(5) The party or organization must not be an party-list system. (Ang Bagong Bayani v.
adjunct of or a project organized or an entity COMELEC)
funded or assisted by the government;
(6) Its nominees must likewise comply with the Religious sectors v. Religious leaders. There is
requirements of the law; a prohibition of religious sectors. However, there is
(7) The nominee must likewise be able to no prohibition from being elected or selected as
contribute to the formulation and enactment of sectoral representatives.
legislation that will benefit the nation. (Ang
Bagong Bayani v. COMELEC, June 26, 2001) L. Legislative Districts
Apportionment
4. Parties or organizations disqualified
Reason for the Rule
The COMELEC may motu propio or upon verified Reapportionment
complaint of any interested party, remove or cancel
Gerrymandering
after due notice and hearing the registration of any
national, regional or sectoral party, organization or
coalition on any of the following grounds: Section 5
1. t is a religious sect or denomination, (3) Each legislative district shall
organization or association organized for comprise, as far aspracticable,
religious purposes; contiguous, compact and adjacent
2. It advocates violence or unlawful means to territory. Each city with a population
seek its goal; of at least two hundred fifty
3. It is a foreign party or organization; thousand, or each province, shall
4. It is receiving support from any foreign have at least one representative.
government, foreign political party, foundation, (4) Within three years following the
organization, whether directly or through any return of every census, the
of its officers or members or indirectly through Congress shall make a
third parties for partisan election purposes; reapportionment of legislative
5. It violates or fails to comply with laws, rules or districts based on the standards
regulations relating to elections. provided in this section.
6. It declares untruthful statements in its petition;
7. It has ceased to exist for at least one (1) year; 1. Apportionment
8. It fails to participate in the last two (2) Legislative districts are apportioned among the
preceding elections or fails to obtain at least provinces, cities, and the Metropolitan Manila area.
two per centum (2%) of the votes cast under
the party-list system in the two (2) preceding Legislative districts are apportioned in accordance
elections for the constituency in which it has with the number of their respect inhabitants and on
registered. the basis of a uniform and progressive ratio. (art. 6
§ 5)
5. Qualifications of a party-list nominee in RA
7941: Each city with a population of at least 250,000 shall
(1) Natural-born citizen of the Philippines; have at least one representative.
(2) Registered Voter;
(3) Resident of the Philippines for a period of not Each province shall have at least one
less than 1 year immediately preceding the representative.
day of election

I sweat, I bleed, I soar… 32


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

The question of the validity of an apportionment administer the oath to the winner. (Codilla v. De
law is a justiciable question. (Macias v. Comelec) Venecia)

2. Reason for the rule. The underlying principle Disqualified “winner”


behind the rule for apportionment (that The Court has also clarified the rule on who should
representative districts are apportioned among assume the position should the candidate who
provinces, cities, and municipalities in accordance received the highest number of votes is
with the number of their respective inhabitants, and disqualified. The second in rank does not take his
on the basis of a uniform and progressive ration.”) place. The reason is simple: “It is of no moment
is the concept of equality of representation that there is only a margin of 768 votes between
which is a basic principle of republicanism. One protestant and protestee. Whether the margin is
man’s vote should carry as much weight as the ten or ten thousand, it still remains that protestant
vote of every other man. did not receive the mandate of the majority during
the elections. Thus, to proclaim him as the duly
Section 5 provides that the House shall be elected representative in the stead of protestee
composed of not more than 250 members unless would be anathema to the most basic precepts of
otherwise provided by law. Thus, Congress itself republicanism and democracy as enshrined within
may by law increase the composition of the HR. our Constitution.”153
(Tobias v. Abalos)
Section 9. In case of vacancy in
When one of the municipalities of a congressional the 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
the splitting of district into two. The incidental in the manner prescribed by law,
arising of a new district in this manner need not be but the Senator or Member of the
preceded by a census. (Tobias v. Abalos) House of Representatives thus
elected shall serve only for the
3. Reapportionment unexpired term.
Reapportionment can be made thru a special law. Special election
(Mariano v. COMELEC) A special election to fill in a vacancy is not
mandatory.
Correction of imbalance as a result of the increase
in number of legislative districts must await the In a special election to fill a vacancy, the rule is that
enactment of reapportionment law. (Montejo v. a statute that expressly provides that an election to
COMELEC) fill a vacancy shall be held at the next general
elections, fixes the date at which the special
4. Gerrymandering election is to be held and operates as the call for
Gerrymandering is the formation of one legislative that election. Consequently, an election held at the
district out of separate territories for the purpose of time thus prescribed is not invalidated by the fact
favoring a candidate or a party. that the body charged by law with the duty of
calling the election failed to do so. This is because
Gerrymandering is not allowed. The Constitution the right and duty to hold the election emanate
provides that each district shall comprise, as far as from the statue and not from any call for election by
practicable, contiguous, compact and adjacent some authority and the law thus charges voters
territory. with knowledge of the time and place of the
election. (Tolentino v. COMELEC)
M. Election
1. Regular Election Special Election (R.A. 6645)
2. Special Election 1. No special election will be called if vacancy
occurs:
Section 8. Unless otherwise a. at least eighteen (18) months before the
provided by law, the regular next regular election for the members of
election of the Senators and the the Senate;
Members of the House of b. at least one (1) year before the next
Representatives shall be held on regular election members of Congress
the second Monday of May. 2. The particular House of Congress where
vacancy occurs must pass either a resolution if
Regular election Congress is in session or the Senate President
A person holding office in the House must yield his
or her seat to the person declared by the
COMELEC to be the winner. The Speaker shall 153
Ocampo v. HRET, G.R. No. 158466. June 15, 2004.

I sweat, I bleed, I soar… 33


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

or the Speaker must sign a certification, if shall, in all offenses punishable by


Congress is not in session, not more than six years
a. declaring the existence of vacancy; imprisonment, be privileged from
b. calling for a special election to be held arrest while the Congress is in
within 45 to 90 days from the date of the session. No member shall be
resolution or certification. questioned nor be held liable in any
3. The Senator or representative elected shall other place for any speech or
serve only for the unexpired term. debate in the Congress or in any
committee thereof.
N. Salaries
When increase may take effect A. Privilege from Arrest (Parliamentary Immunity of
Reason fro the delayed effect of increased salary Arrest)
Emoluments Privilege
Allowances Purpose
Scope
Section 10. The salaries of Limitations
Senators and Members of the Privilege is Personal
House of Representatives shall be Trillanes Case
determined by law. No increase in
said compensation shall take effect 1. Privilege. A member of Congress is privileged
until after the expiration of the full from arrest while Congress is in session in all
term of all the members of the offenses (criminal or civil) not punishable by more
Senate and the House of than 6 years imprisonment.
Representatives approving such
increase. 2. Purpose. Privilege is intended to ensure
representation of the constituents of the member of
1. When increase may take effect. No increase in Congress by preventing attempts to keep him from
the salaries of Senators and Representatives shall attending sessions.155
take effect until after the expiration of the full term
of all the members of the Senate and House of 3. Scope. Parliamentary immunity only includes
Representatives. the immunity from arrest, and not of being filed suit.

2. Reason for the delayed effect of increased 4. Limitations on Parliamentary Immunity


salary. Its purpose is to place a “legal bar to the 1. Crime has a maximum penalty of not more
legislators’ yielding to the natural temptation to than 6 years;
increase their salaries. (PHILCONSA v. Mathay) 2. Congress is in session, whether regular or
special;
3. Emoluments. Bernas submits that, by appealing 3. Prosecution will continue independent of
to the spirit of the prohibition, the provision may be arrest;
read as an absolute ban on any form of direct or 4. Will be subject to arrest immediately when
indirect increase of salary (like emoluments). Congress adjourns.
4. Allowances. A member of the Congress may While in session. The privilege is available “while
receive office and necessary travel allowances the Congress is in session,” whether regular or
since allowances take effect immediately. Nor is special and whether or not the legislator is actually
there a legal limit on the amount that may be attending a session. “Session” as here used does
appropriated. The only limit is moral, because, not refer to the day-to-day meetings of the
according to Section 20, the books of Congress are legislature but to the entire period from its initial
audited by the Commission on Audit ‘which shall convening until its final adjournment.156 Hence the
publish annually an itemized list of amounts paid privilege is not available while Congress is in
and expenses incurred for each Member.154 recess.

IV. PRIVILEGES OF MEMBERS Why not available during recess. Since the
A. Privilege from Arrest purpose of the privilege is to protect the legislator
B. Parliamentary freedom of speech and debate against harassment which will keep him away from
legislative sessions, there is no point in extending
the privilege to the period when the Congress is
Section 11. A Senator or Member
not in session.
of the House of Representatives
155
Cruz, Philippine Political Law.
154 156
Bernas Commentary, p700. Cruz, Philippine Political Law.

I sweat, I bleed, I soar… 34


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

In a unanimous decision penned by Justice Carpio


5. Privilege is personal. Privilege is personal to Morales, the SC en banc junked Senator Antonio Trillanes’
each member of the legislature, and in order that petition seeking that he be allowed to perform his duties as a
Senator while still under detention. SC barred Trillanes from
its benefits may be availed of, it must be asserted
attending Senate hearings while has pending cases, affirming
at the proper time and place; otherwise it will be the decision of Makati Judge Oscar Pimentel.
considered waived.157 The SC reminded Trillanes that “election to office does
not obliterate a criminal charge”, and that his electoral victory
Privilege not granted to Congress but to its only signifies that when voters elected him, they were already
members. Privilege from arrest is not given to fully aware of his limitations.
Congress as a body, but rather one that is granted The SC did not find merit in Trillanes’ position that his
particularly to each individual member of it. (Coffin case is different from former representative Romeo Jalosjos,
who also sought similar privileges before when he served as
v. Coffin, 4 Mass 1)158
Zamboanga del Norte congressman even while in detention.
Quoting parts of the decision on Jalosjos, SC said that
Privilege is reinforced by Article 145 of the Revised “allowing accused-appellant to attend congressional sessions
Penal Code-Violation of Parliamentary Immunity. and committee meetings five days or more a week will virtually
make him a free man… Such an aberrant situation not only
Note: The provision says privilege from arrest; it elevates accused appellant’s status to that of a special class, it
does not say privilege from detention. would be a mockery of the purposes of the correction system.”
The SC also did not buy Trillanes’ argument that he be
given the same liberal treatment accorded to certain detention
Q: Congressman Jalosjos was convicted for
prisoners charged with non-bailable offenses, like former
rape and detained in prison, asks that he be President Joseph Estrada and former Autonomous Region in
allowed to attend sessions of the House. Muslim Mindanao (ARMM) governor Nur Misuari, saying these
A: Members of Congress are not exempt emergency or temporary leaves are under the discretion of the
from detention for crime. They may be authorities or the courts handling them.
arrested, even when the House in session, The SC reminded Trillanes that he also benefited from
for crimes punishable by a penalty of more these “temporary leaves” given by the courts when he was
than six months. allowed to file his candidacy and attend his oath-taking as a
senator before.
The SC also believes that there is a “slight risk” that
Q: Congressman X was convicted for a Trillanes would escape once he is given the privileges he is
crime with a punishment of less than 6 asking, citing the Peninsula Manila incident last November.
years. He asks that he be allowed to attend
sessions of the House contending that the B. Privilege of Speech and Debate
punishment for the crime for which he was Requirements
convicted is less than 6 years. Purpose
A: I submit that Congressman X can be Scope
detained even if the punishment imposed is Privilege Not Absolute
less than 6 years. The provision only speaks
of privilege from arrest. It does not speak of 1. Isagani Cruz: 2 Requirements for the
exemption from serving sentence after privilege to be availed of:
conviction. Members of Congress are not 1. That the remarks must be made while the
exempt from detention for crime.-asm legislature or the legislative committee is
functioning, that is in session;159 (See Jimenez v.
Q: Can the Sandiganbayan order the Cabangbang)
preventive suspension of a Member of the 2. That they must be made in connection with the
House of Representatives being prosecuted discharge of official duties.160
criminally for violation of the Anti-Graft and
Corrupt Practices Act? But wait! As regards Requirement #1 provided
by Cruz, Bernas Primer provides: to come
A: Yes. In Paredes v. Sandiganbayan, the under the privilege, it is not essential that the
Court held that the accused cannot validly Congress be in session when the utterance is
argue that only his peers in the House of made. What is essential is that the utterance
Representatives can suspend him because must constitute “legislative action.”161
the court-ordered suspension is a preventive
measure that is different and distinct from Libelous remarks not in exercise of legislative
the suspension ordered by his peers for function shall not be under privilege of speech.
disorderly behavior which is a penalty.

159
6. Trillanes Case (June 27, 2008) Cruz, Philippine Political Law p. 116 (1995 ed.); See Jimenez v.
Cabangbang.
157 160
Sinco, Philippine Political Law, p. 187, 10th ed. Cruz, Philippine Political Law p. 116 (1995 ed.).
158 161
Sinco, Philippine Political Law, p. 187, 10th ed. Bernas Primer, p. 245 (2006 ed.)

I sweat, I bleed, I soar… 35


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

To invoke the privilege of speech, the matter must B. Prohibitions


be oral and must be proven to be indeed
privileged. A. Duty to disclose

2. Purpose. It is intended to leave legislator Section 12. All members of the


unimpeded in the performance of his duties and Senate and the House of
free form harassment outside.162 Representative shall, upon
assumption of office, make a full
Privilege of speech and debate enables the disclosure of their financial and
legislator to express views bearing upon the public business interests. They shall notify
interest without fear of accountability outside the the House concerned of a potential
halls of the legislature for his inability to support his conflict of interest that may arise
statements with the usual evidence required in the from the filing of a proposed
court of justice. In other words, he is given more legislation of which they are
leeway than the ordinary citizen in the ventilation of authors.
matters that ought to be divulged for the public
good.163 This provision speaks of duty to disclose the
164 following:
3. Scope:
(1) The privilege is a protection only against (1) Financial and business interest upon
forums other than the Congress itself. assumption of office
(Osmena v. Pendatun) (2) Potential conflict of interest that may arise
(2) “Speech or debate” includes utterances made from filing of a proposed legislation of which
in the performance of official functions, such they are authors.
as speeches delivered, statements made,
votes cast, as well as bills introduced and
other acts done in the performance of official B. Prohibitions (Disqualifications and Inhibitions)
duties. (Jimenez v. Cabangbang) Prohibitions
(3) To come under the privilege, it is not essential Disqualifications
that the Congress be in session when the Prohibitions on lawyer-legislators
utterance is made. What is essential is that the Conflict of interests
utterance must constitute “legislative action”,
that is, it must be part of the deliberative and Disqualifications
communicative process by which legislators Section 13. No Senator or Member
participate in committee or congressional of the House of Representatives
proceedings in the consideration of proposed may hold any other office or
legislation or of other matters which the employment in the government, or
Constitution has placed within the jurisdiction any subdivision, agency, or
of Congress. (Gravel v. US) instrumentality thereof, including
(4) The privilege extends to agents of government-owned or controlled
assemblymen provided that the “agency” corporation or their subsidiaries,
consists precisely in assisting the legislator in during his term without forfeiting his
the performance of “legislative action” (Gravel seat. Neither shall he be appointed
v. US) to any office which may have been
created or the emoluments thereof
4. Privilege not absolute. The rule provides that increased during the term for which
the legislator may not be questioned “in any other he was elected.
place,” which means that he may be called to
account for his remarks by his own colleagues in
the Congress itself and, when warranted, punished Section 14. No Senator or Member
for “disorderly behavior.”165 of the House of Representatives
may personally appear as counsel
V. DUTY TO DISCLOSE; PROHIBITIONS before any court of justice or before
the Electoral Tribunals, or quasi-
judicial and other administrative
A. Duty to Disclose bodies. Neither shall he, directly or
indirectly, be interested financially
162
Bernas Primer, p. 245 (2006). in any contract with, or in any
163
Cruz, Philippine Political Law. franchise or special privilege
164
Bernas Primer, p. 245 (2006 ed.) granted by the Government, or any
165
Cruz, Philippine Political Law; See Osmena v. Pendatun. subdivision, agency or

I sweat, I bleed, I soar… 36


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

instrumentality thereof, including Prohibition not absolute. The prohibition against


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 to accept an appointment in the government before
Government for his pecuniary the expiration of his term.167
benefit or where he 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,
example, membership in the Electroral Tribunals is
Disqualifications
permitted by the Constitution itself. Moreover, if it
(1) To hold any other office or employment can be shown that the second office is an
in the government, or any subdivision, extension of the legislative position or is in aid of
agency, or instrumentality thereof, legislative duties, the holding thereof will not result
including government-owned or controlled in the loss of the legislator’s seat in the
corporation or their subsidiaries during Congress.168
his term without forfeiting his seat.
(Incompatible office) Forbidden Office.
(2) To be appointed to any office which Purpose. The purpose is to prevent trafficking in
may have been created or the public office.169 The reasons for excluding persons
emoluments thereof increased during the from office who have been concerned in creating
term for which he was elected. (Forbidden them or increasing the emoluments are to take
office) away as far as possible, any improper bias in the
Prohibitions on lawyer-legislators vote of the representative and to secure to the
(3) To personally appear as counsel before constituents some solemn pledge of his
disinterestedness.170
any court of justice or before the Electoral
Tribunals, or quasi-judicial and other
Scope of prohibition. The provision does not
administrative bodies.
apply to elective offices, which are filled by the
Conflict of Interests
voters themselves.
(4) To be interested financially, directly or
indirectly, in any contract with, or in any The appointment of the member of the Congress to
franchise or special privilege granted by the forbidden office is not allowed only during the
the Government, or any subdivision, term for which he was elected, when such office
agency or instrumentality thereof, was created or its emoluments were increased.
including any government-owned or After such term, and even if the legislator is re-
controlled corporation, or its subsidiary, elected, the disqualification no longer applies and
during his term of office. he may therefore be appointed to the office.171
(5) To intervene in any matter before any
office of the Government for his 3. Prohibition on lawyer legislators.
pecuniary benefit or intervene in any
matter before any office of the Purpose. The purpose is to prevent the legislator
Government where he may be called from exerting undue influence, deliberately or not,
upon to act on account of his office. upon the body where he is appearing.172
(6) See Section 10
Not a genuine party to a case. A congressman
2. Disqualifications may not buy a nominal account of shares in a
corporation which is party to a suit before the SEC
Incompatible Office and then appear in “intervention”. That which the
Purpose. The purpose of prohibition of
incompatible offices is to prevent him from owing
166
loyalty to another branch of the government, to the Cruz, Philippine Political Law.
167
detriment of the independence of the legislature Bernas Primer, p.246 (2006).
and the doctrine of separation of powers. 168
Cruz, Philippine Political Law.
2 Kinds of Office under Article 13 169
Cruz, Philippine Political Law.
1) Incompatible office (1st sentence of article 13) 170
Mr. Justice Story quoted in Sinco, Philippine Political Law, p. 163
2) Forbidden office (2nd sentence of article 13) (1954).
171
Cruz, Philippine Political Law.
172
Cruz, Philippine Political Law.

I sweat, I bleed, I soar… 37


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

Constitution directly prohibits may not be done by Section 15. The Congress shall
indirection. (Puyat v. De Guzman) convene once every year on the
fourth Monday of July for its regular
Prohibition is personal. It does not apply to law session, unless a different date is
firm where a lawyer-Congressman may be a fixed by law, and shall continue to
member.173 The lawyer-legislator may still engage be in session for such number of
in the practice of his profession except that when it days as it may determine until thirty
come to trials and hearings before the bodies days before the opening of its next
above-mentioned, appearance may be made not regular session, exclusive of
by him but by some member of his law office.174 Saturdays, Sundays, and legal
holidays. The President may call a
Pleadings. A congressman cannot sign pleadings special session at any time.
[as counsel for a client] (Villegas case)
Regular session
4. Conflict of Interests Congress shall convene once every year for its
regular session.
Financial Interest
Purpose. This is because of the influence they can Congress shall convene on the 4th Monday of July
easily exercise in obtaining these concessions. The (unless a different date is fixed by law) until 30
idea is to prevent abuses from being committed by days (exclusive of Saturdays, Sundays and legal
the members of Congress to the prejudice of the holidays) before the opening of the next regular
public welfare and particularly of legitimate session.
contractors with the government who otherwise
might be placed at a disadvantageous position vis- Special session
à-vis the legislator. A special session is one called by the President
while the legislature is in recess.
Contract. The contracts referred to here are those
involving “financial interest,” that is, contracts from Mandatory recess. A mandatory recess is
which the legislator expects to derive some profit at prescribed for the thirty-day period before the
the expense of the government.175 opening of the next regular session, excluding
Saturdays, Sundays and legal holidays. This is the
Pecuniary Benefit. The prohibited pecuniary minimum period of recess and may be lengthened
benefit could be direct or indirect and this would by the Congress in its discretion. It may however,
cover pecuniary benefit for relatives. (Bernas be called in special session at any time by the
Commentary, p. 710, 10th ed.) President.

VI. INTERNAL GOVERNMENT OF CONGRESS The President’s call is not necessary in some
instances:
1. When the Congress meets to canvass the
Sessions presidential elections
Adjournment 2. To call a special election when both the
Officers Presidency and Vice-Presidency are vacated
Quorum 3. When it decides to exercise the power of
Internal Rules impeachment where the respondent is the
Disciplinary Powers President himself.176
Legislative Journal and Congressional Record
Enrolled Bill Doctrine Q: May the President limit the subjects which
may be considered during a special election
A. Sessions called by him?
1. Regular A: No. The President is given the power to
2. Special call a session and to specify subjects he
3. Joint Sessions wants considered, but it does not empower
him to prohibit consideration of other
subjects. After all, Congress, if it so wishers,
may stay in regular session almost all year
173
Bernas Primer, p.247 (2006). round.177
174
Cruz. Philippine Political Law.
175 Joint Sessions
Cruz, Philippine Political Law. Legislators cannot be members of
the board of corporations with contract with the government. Such 176
would be at least indirect financial interest. (Bernas Commentary, p. Cruz, Philippine Political Law,
177
710, 10th ed.) Bernas Commentary, p.711, (2003 ed.)

I sweat, I bleed, I soar… 38


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

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
the privilege of the writ of habeas corps or other officers as it may deem
placing the Philippines under martial law. (art 7 necessary.
§18)
Officers of the Congress:
Instances when Congress votes other than (1) Senate President
majority. (2) House Speaker
a. To suspend or expel a member in accordance (3) Such other officers as each House may deem
with its rules and proceedings: 2/3 of all its necessary.
members (Sec. 16, Art. VI).
b. Yeas and nays entered in the Journal: 1/5 of It is well within the power and jurisdiction of the
the members present (Sec. 16(4), Art. VI) Court to inquire whether the Senate or its officials
c. Declare the existence of a state of war: 2/3 of committed a violation of the Constitution or gravely
both houses in joint session voting separately abused their discretion in the exercise of their
(Sec. 23, Art. VI) functions and prerogatives. (Santiago v. Guingona)
d. Re-passing of a bill after Presidential veto: 2/3
of the Members of the House where it The method of choosing who will be the other
originated followed by 2/3 of the Members of officers must be prescribed by Senate itself. In the
the other House. absence of constitutional and statutory guidelines
e. Determining President’s disability after or specific rules, this Court is devoid of any basis
submissions by both the Cabinet and the upon which to determine the legality of the acts of
President: 2/3 of both Houses voting the Senate relative thereto. On grounds of respect
separately (Sec. 11, Art. VII) for the basic concept of separation of powers,
courts may not intervene in the internal affairs of
B. Adjournment the legislature; it is not within the province of courts
to direct Congress how to do its work. (Santiago v.
Section 16 Guingona)
(5) Neither House during the
session of the Congress shall, D. Quorum
without the consent of the other,
adjourn for more than three days, Section 16
nor to any other place than that in (2) A majority of each House shall
which the two Houses shall be constitute a quorum to do business,
sitting. but a smaller number may adjourn
from day to day and may compel
Either House may adjourn even without the the attendance of absent Members
consent of the other provided that it will not be in such manner and under such
more than three days. penalties, as such House may
provide.
If one House should adjourn for more than three
days, it will need the consent of the other. Quorum to do business. A majority of each
House shall constitute a quorum to do business.
Neither house can adjourn to any other place than
that in which the two Houses shall be sitting without Quorum is based on the proportion between those
the consent of the other. physically present and the total membership of
the body.
Reason. These rules prevent each house from
holding up the work of legislation. 178 This A smaller number may adjourn from day to day.

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

I sweat, I bleed, I soar… 39


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

A smaller number may compel the attendance of Basis for punishment. Each House may punish
absent members in such manner and under such its Members for disorderly behavior.
penalties as the House may provide.
Preventive Suspension v. Punitive Suspension.
The members of the Congress cannot compel A congressman may be suspended as a preventive
absent members to attend sessions if the reason of measure by the Sandiganbayan. The order of
absence is a legitimate one. The confinement of a suspension prescribed by the Anti-Graft and
Congressman charged with a non-bailable offense Corrupt Practices Act is distinct from the power of
(more than 6 years) is certainly authorized by law congress to police its own ranks under the
and has constitutional foundations. (People v. Constitution. The suspension contemplated in the
Jalosjos) constitutional provisions is a punitive measure that
is imposed upon determination by a House upon
The question of quorum cannot be raised an erring member. The suspension spoken in
repeatedly, especially when a quorum is obviously AGCPA is not a penalty but a preventive measure.
present, for the purpose of delaying the business of The doctrine of separation of powers by itself may
the House. (Arroyo v. De Venecia, June 26, 1998) not be deemed to have excluded members of
Congress from AGCPA. The law did not exclude
E. Internal Rules from its coverage the members of the Congress
Power to determine rules and therefore the Sandiganbayan may decree a
Nature of the rules preventive suspension order. (Santiago v.
Role of courts Sandiganbayan) (2002 Bar Question)

Section 18 2/3 Requirement. Each House may with the


(3) Each House may determine the concurrence of two-thirds of all its Members,
rules of its proceedings, punish its suspend or expel a Member.
Members for disorderly behavior,
and with the concurrence of two- Period of suspension. A penalty of suspension,
thirds of all its Members, suspend when imposed, shall not exceed sixty days.
or expel a Member. A penalty of
suspension, when imposed, shall Not subject to judicial review. Disciplinary action
not exceed sixty days. taken by Congress against a member is not subject
to judicial review because each House is the sole
judge of what disorderly behavior is. (Osmena v.
1. Power to determine internal rules. Each
Pendatun)
House may determine the rules of its proceedings.

2. Nature of the Rules. The rules adopted by


G. Legislative Journal and Congressional Record
deliberative bodies (such as the House) are subject
to revocation, modification, or waiver by the body Requirement
adopting them. (Arroyo v. De Venecia) Journal
Purpose of Journal
The power to make rules is not one, once What may be excluded
exercised is exhausted. It is a continuous power, Matters to be entered to the journal
always subject to be exercised by the House, and Journal v. Extraneous Evidence
within the limitations suggested and absolutely Record
beyond the challenge of any other body. (Arroyo v.
De Venecia) Section 18
(4) Each House shall keep a
3. Role of Courts. The Court may not intervene in Journal of its proceedings, and
the implementation of the rules of either House from time to time publish the same,
except if the rule affects private rights. On matters excepting such parts as may, in its
affecting only internal operation of the legislature, judgment, affect national security;
the legislature’s formulation and implementation of and the yeas and nays on any
its rules is beyond the reach of the courts. When, question shall, at the request of
however, the legislative rule affects private rights, one-fifth of the Members present,
the courts cannot altogether be excluded. (US v. be entered in the Journal.
Smith) Each House shall also keep a
Record of its Proceedings.

F. Disciplinary powers (suspension/expulsion) 1. Requirement. Each House shall keep a Journal


of its proceedings, and from time to time publish
the same.

I sweat, I bleed, I soar… 40


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

are conclusive of its due enactment. (Arroyo v. De


2. What is a journal? The journal is usually an Venecia)
abbreviated account of the daily proceedings.180 A
legislative journal is defined as “the official record Where the conference committee report was
of what is ‘done and past’ in a legislative [body]. It approved by the Senate and the HR and the bill is
is so called because the proceedings are entered enrolled, the SC may not inquire beyond the
therein, in chronological order as they occur from certification and approval of the bill, and the
day to day.181 enrolled bill is conclusive upon the judiciary (Phil.
Judges Association v. Prado)
3. Purpose of the requirement that a journal be
kept: 3. Underlying Principle of the Doctrine. Court is
(1) To insure publicity to the proceedings of the bound under the doctrine of separation of
legislature, and a correspondent responsibility powers by the contents of a duly authenticated
of the members of their respective measure of the legislature. (Mabanag v. Lopez
constituents; and Vito, Arroyo v. De Venecia)
(2) To provide proof of what actually transpired in
the legislature. (Field v. Clark) 4. Enrolled bill vs. Journal Entry: The enrolled
bill is the official copy of approved legislation and
4. What may be excluded. The Constitution bears the certification of the presiding officers of
exempts from publication parts which in the the legislative body. The respect due to a co-equal
judgment of the House affect national security. department requires the courts to accept the
certification of the presiding officer as conclusive
5. Matters which, under the Constitution, are to assurance that the bill so certified is authentic.
be entered in the journal: (Casco Philippine Chemical Co. v. Gimenez)
1. Yeas and nays on third and final reading of a However, If the presiding officer should repudiate
bill. his signature in the “enrolled bill”, the enrolled will
2. Veto message of the President not prevail over the Journal. This is because the
3. Yeas and nays on the repassing of a bill enrolled bill theory is based mainly on the respect
vetoed by the President due to a co-equal department. When such co-equal
4. Yeas and nays on any question at the request department itself repudiates the enrolled bill, then
of 1/5 of members present the journal must be accepted as conclusive.

6. Journal vs. Extraneous evidence. The Journal 5. Enrolled bill v. Matters required to be entered
is conclusive upon the Courts (US v. Pons) in the journals. The Supreme Court has explicitly
left this matter an open question in Morales v.
7. What is a Record? The Record contains a word Subido.183
for word transcript of the deliberation of
Congress.182 6. Remedy for Mistakes. If a mistake was made in
printing of the bill before it was certified by
H. Enrolled bill doctrine Congress and approved by the President, the
Enrolled Bill remedy is amendment or corrective legislation, not
Enrolled Bill Doctrine judicial decree. (Casco (Phil) Chemical Co.
Underlying Principle Gimenez)
Enrolled Bill v. Journal Entry
Enrolled bill v. matters required to be entered in the VII. Electoral Tribunals, CA
journals
Remedy for Mistakes
Electoral Tribunal
1. Enrolled Bill. One which has been duly CA
introduced, finally passed by both houses, signed Constitution of ET and CA
by the proper officers of each, approved by the
[president]. (Black Law Dictionary) A. Electoral Tribunal
Electoral Tribunals
2. Enrolled bill doctrine: The signing of a bill by Composition
the Speaker of the House and the Senate Rationale
President and the certification by the secretaries of Independence
both Houses of Congress that such bill was passed
183
Bernas Primer, p. 251 (2006 ed.); Cruz in his book says: “But
180 except only where the matters are required to be entered in the
Bernas Commentary, p.723, (2003 ed.)
181 journals, the contents of the enrolled bill shall prevail over those of
Sinco, Philippine Political Law 191, (1954). the journal in case of conflict. (Page 129 Philippine Political Law
182
Bernas Commentary, p.723, (2003 ed.) (1995 ed).

I sweat, I bleed, I soar… 41


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

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 membership of senators, and no amendment of its
each have an Electoral Tribunal rules can confer on the 3 remaining justice-
which shall be the sole judge of all members alone, the power of valid adjudication of
contests relating to the election, senatorial election contest. (Abbas v. SET)
returns, and qualifications of their
respective Members. Each 4. Independence. The Congress may not regulate
electoral tribunal shall be the actions of the electoral tribunals even in
composed of nine members, three procedural matters. The tribunal is an independent
of whom shall be Justices of the constitutional body. (Angara v. Electoral
Supreme Court to be designated by Commission)
the Chief Justice, and the
remaining six shall be members of 5. Security of Tenure. Members of ET have
the Senate or the House of security of tenure. Disloyalty to the party is not a
Representatives, as the case may ground for termination. (Bondoc v. Pineda) (2002
be, who shall be chosen on the Bar Question)
basis of proportional representation
from the political parties and the 6. Power. The Electoral Tribunal shall be the sole
parties or organizations registered judge of all contests relating to the election,
under the party-list system returns, and qualifications of their respective
represented therein. The senior members.
justice in the Electoral tribunal shall The tribunal has the power to promulgate rules
be its Chairman. relating to matters within its jurisdiction, including
period for filing election protests. (Lazatin v. HET)
1. Two Electoral Tribunals. The Senate and the Electoral Tribunal has incidental power to
House of Representatives shall each have an promulgate its rules and regulations for the proper
Electoral Tribunal exercise of its function (Angara v. Electoral
Commission)
2. Composition of ET
Each electoral tribunal shall be composed of 9 7. Jurisdiction of Electoral Tribunal
members. 3 from the SC (to be designated by the The Electoral Tribunal shall be the sole judge of all
CJ) and 6 from the respective House. contests relating to the election, returns, and
qualifications of their respective members.
3. Why create an electoral tribunal independent
from Congress. It is believed that this system The jurisdiction of HRET is not limited to
tends to secure decisions rendered with a greater constitutional qualifications. The word
degree of impartiality and fairness to all parties. It “qualifications” cannot be read to be qualified by
also enables Congress to devote its full time to the the term “constitutional”. Where the law does not
performance of its proper function, which is distinguish, the courts should likewise not. The
legislation, rather than spend part of its time acting filing of a certificate of candidacy is a statutory
as judge of election contests.184 qualification.(Guerrero v. COMELEC)

Proportional Representation. The congressmen Where a person is contesting the proclamation of a


who will compose the electoral tribunal shall be candidate as senator, it is SET which has exclusive
chosen on the basis of proportional representation jurisdiction to act. (Rasul v. COMELEC)
from the political and party-list parties.
Contest after proclamation is the jurisdiction of
Reason for Mixed Membership. The presence of HRET (Lazatin v. COMELEC)
justices of the Supreme Court in the Electoral
Tribunal neutralizes the effects of partisan When there is an election contest (when a
influences in its deliberations and invests its action defeated candidate challenge the qualification and
with that measure of judicial temper which is claims the seat of a proclaimed winner), the
Electoral Tribunal is the sole judge.

184 185
Sinco, Philippine Political Law, p.158 (1954). Sinco, Philippine Political Law, p.158 (1954).

I sweat, I bleed, I soar… 42


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

Errors that may be verified only by the opening of within the exclusive jurisdiction of the COMELEC
ballot boxes must be recoursed to the electoral en banc. (Codilla v. De Venecia)
tribunal.
It is the COMELEC which decides who the winner
Once a winning candidate has been proclaimed, is in an election. A person holding office in the
taken his oath and assumed office as a member of House must yield his or her seat to the person
the House, COMELEC’s jurisdiction over election declared by the COMELEC to be the winner and
contest relating to his election, returns and the Speaker is duty bound to administer the oath 188.
qualifications ends, and the HRET’s own The Speaker shall administer the oath on the
jurisdiction begins. (Aggabao v. COMELEC) winner.

Nature of election contests. An election is not like In election contests, however, the jurisdiction of the
an ordinary action in court. Public interests rather COMELEC ends once a candidate has been
than purely private ones are involved in its proclaimed and has taken his oath of office as a
determination.186 It is therefore not permissible that Member of Congress. Jurisdiction then passes to
such a contest be settled by stipulation between the Electoral Tribunal of either the House or the
the parties, nor can judgment be taken by default; Senate.189
but the case must be decided after thorough
investigation of the evidence.187 9. Judicial Review
SC may intervene in the creation of the electoral
Absence of election contest. In the absence of tribunal. SC may overturn the decisions of HRET
an election contest, however, the electoral tribunals when there is GADLJ. (Lerias v. HRET)
are without jurisdiction. Thus, the power of each
House to defer oath-taking of members until final Judicial review of decisions or final resolutions of
determination of election contests filed against the electoral tribunals is possible only in the
them has been retained by each House. (Angara v. exercise of the Court’s so called extra-ordinary
Electoral Commission) jurisdiction upon a determination that the tribunal’s
decision or resolution was rendered without or in
Invalidity of Proclamation. An allegation of excess of jurisdiction or with grave abuse of
invalidity of a proclamation is a matter that is discretion constituting denial of due process.
addressed to the sound discretion of the Electoral (Robles v. HET)
Tribunal. (Lazatin v. COMELEC)
Q: Are the decisions rendered by the
Motion to Withdraw. The motion to withdraw does Electoral Tribunals in the contests of which
not divest the HRET the jurisdiction on the case. they are the sole judge appealable to the
(Robles v. HRET) Supreme Court?
A: No. The decisions rendered by the
8. Jurisdiction of COMELEC Electoral Tribunals in the contests of which
Pre-proclamation controversies include: they are the sole judge are not appealable to
(1) Incomplete returns (omission of name or the Supreme Court except in cases of a
votes) clear showing of a grave abuse of
(2) Returns with material defects discretion.
(3) Returns which appeared to be tampered with,
falsified or prepared under duress or B. Commission on Appointments
containing discrepancies in the votes (with Function of CA
significant effect on the result of election) Composition
Proportional Representation
“Where a petitioner has seasonably filed a motion Fractional Seats
for reconsideration of the order of the Second Voting
Division suspending his proclamation and Action on Appointments
disqualifying him, the COMELEC was not divested Ad Interim Appointments not acted upon
of its jurisdiction to review the validity of the order Ruling
of the Second Division. The order of the Second
division is unenforceable as it had not attained Section 18. There shall be a
finality. It cannot be used as the basis for the Commission on Appointments
assumption to office of respondent. The issue of consisting of the President of the
the validity of the order of second division is still Senate, as ex-officio Chairman,

188
Codilla v. de Venecia, G.R. No. 150605. December 10, 2002.
186
Sinco, Philippine Political Law, p.161 (1954). 189
Aggabao v. Comelec, G.R. No. 163756. January 26, 2005;
187
Reinsch,, American Legislature, p 216. Vinzons-Chato v. Comelec, GR 172131, April 2, 2007.

I sweat, I bleed, I soar… 43


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

twelve Senators and twelve 7. Ad interim appointments not acted upon. Ad


Members of the House of interim appointments not acted upon at the time of
Representatives, elected by each the adjournment of the Congress, even if the thirty-
House on the basis of proportional day period has not yet expired, are deemed by-
representation from the political passed under Article VII, Section 16.
parties and parties or organizations
registered under the party-list 8. Ruling. The Commission shall rule by a majority
system represented therein. The vote of all its Members.
Chairman of the Commission shall
not vote, except in the case of a tie. C. Constitution of ET and CA
The Commission shall act on all Organization
appointments submitted to it within Reason for early organization of ETs
thirty session days of the Congress Reason of provision on CA
from the submission. The CA Meeting
Commission shall rule by a majority
vote of all its Members. Section 19. The Electoral Tribunals
and the Commission on
1. Function of CA. It acts as a legislative check on Appointments shall be constituted
the appointing authority of the President. For the within thirty days after the Senate
effectivity of the appointment of certain key and the House of Representatives
officials, the consent of CA is needed. shall have been organized with the
election of the President and the
2. Composition (25 members) Speaker. The Commission on
(1) Senate President as chairman Appointments shall meet only while
(2) 12 senators the Congress is in session, at the
(3) 12 members of HR call of its Chairman or a majority of
all its members, to discharge such
3. Proportional Representation. The members of powers and functions as are herein
the Commission shall be elected by each House on conferred upon it.
the basis of proportional representation from the
political party and party list. 1. Organization. The ET and COA shall be
constituted within 30 days after the Senate and the
The sense of the Constitution is that the House shall have been organized with the election
membership in the Commission on Appointment of the President and the Speaker.
must always reflect political alignments in
Congress and must therefore adjust to changes. It 2. Reason for Early organization of ETs. In the
is understood that such changes in party affiliation case of Electoral Tribunals, the need for their early
must be permanent and not merely temporary organization is obvious, considering the rash of
alliances (Daza v. Singson) election contests already waiting to be filed after,
even before, the proclamation of the winners. This
Endorsement is not sufficient to get a seat in COA. is also the reason why, unlike the Commission of
(Coseteng v. Mitra) Appointments, the Electoral Tribunals are
supposed to continue functioning even during the
4. Fractional Seats. Fractional seats cannot be recess.190
rounded off. The seats should be vacant.
(Coseteng v. Mitra) A full complement of 12 3. Reason, provision on COA. The provision is
members from the Senate is not mandatory based on the need to enable the President to
(Guingona v. Gonzales) Holders of .5 proportion exercise his appointing power with dispatch in
belonging to distinct parties may not form a unity coordination with the Commission on
for purposes of obtaining a seat in the Appointments.
Commission. (Guingona v. Gonzales) The rule that the Commission on Appointments can
meet only during the session of the Congress is the
5. Voting. The Chairman shall not vote except in reason why ad interim appointments are permitted
the case of a tie. under the Constitution. These appointments are
made during the recess, subject to consideration
6. Action on appointments. The Commission later by the Commission, for confirmation or
shall act on all appointments submitted to it within rejection.
30 session days of the Congress from the But where the Congress in is in session, the
submission. President must first clear his nominations with the

190
Cruz, Philippine Political Law.

I sweat, I bleed, I soar… 44


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

Commission on Appointments, which is why it must Ermita) heads.


be constituted as soon as possible. Unless it is Subject Matter
organized, no appointment can be made by the Any mattes for purpose of Matters related to the
President in the meantime.191 legislation department only
Obligatory force of appearance
4. COA meeting Mandatory Discretionary
The Commission on Appointments shall meet only
while the Congress is in session to discharge its A. Inquiries in Aid of Legislation
powers and functions. Who has the power
Nature
The Commission on Appointments shall meet at Limitation of Power
the call of its Chairman or a majority of all its Reason for Limitation
members Scope of Questions
Who may be summoned
VIII. RECORDS AND BOOKS OF ACCOUNTS Power to Punish
Rights of Persons
Courts and Committee
Section 20. The records and books Power of Inquiry v. Executive Privilege
of accounts of the Congress shall Neri v. Senate Committee
be preserved and be open to the
public in accordance with law, and Section 21. The Senate or the
such books shall be audited by the House of Representatives or any of
Commission on Audit which shall its respective committees may
publish annually an itemized list of conduct inquiries in aid of
amounts paid to and expenses legislation in accordance with its
incurred for by each Member. duly published rules of procedure.
The rights of persons appearing in
Records and books of accounts or affected by such inquiries shall
The records and books of accounts of the be respected.
Congress shall be preserved and be open to the
public in accordance with law. Power of Inquiry

The records and books of accounts of the 1. Who has the power
Congress shall be audited by the Commission on The Senate or the House of Representatives or
Audit. any of its respective committees may conduct
inquiries in aid of legislation.
The Commission on Audit shall publish annually an
itemized list of amounts paid to and expenses 2. Nature
incurred for by each Member. The power of inquiry is an essential and
appropriate auxiliary to the legislative action.
IX. LEGISLATIVE HEARINGS (Arnault v. Nazareno) It has been remarked that the
(INQUIRIES AND OVERSIGHT FUNCTIONS) power of legislative investigation may be implied
from the express power of legislation and does not
itself have to be expressly granted.192
A. Inquiries in Aid of Legislation
B. Oversight Functions 3. Limitations193:

There are two provisions on legislative hearing, 1. It must be in aid of legislation194


Sections 21 and 22. Section 21 is about legislative 2. It must be in accordance with its duly
investigations in aid of legislation. published rules of procedure195

Section 21. Legislative Section 22. Oversight


Investigation Function 192
Cruz, Philippine Political Law, p. 155 (1995 ed).
Who may appear 193
See Concurring Opinion of Justice Corona in Neri v. Senate
Any person Department heads Committee; See also Bernas Commentary, p737 (2003 ed).
Who may be summoned 194
This requirement is an essential element for establishing
Anyone except the No one. Each house may jurisdiction of the legislative body.
President and SC only request the 195
Section 21 may be read as requiring that Congress must have
members (Senate v. appearance of department “duly published rules of procedure” for legislative investigations.
Violation of these rules would be an offense against due process.
191
Cruz, Philippine Political Law. (Bernas Commentary p. 740 (2003 ed).

I sweat, I bleed, I soar… 45


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

3. The rights of persons appearing in or affected 2. Physical assault upon its members for action
by such inquiries shall be respected. taken or words spoken in the body;
4. Power of Congress to commit a witness for 3. Obstruction of its officers in the performance of
contempt terminates when the legislative body their official duties
ceases to exist upon its final adjournment.196 4. Prevention of members from attending so that
(Note: 1-3 are explicit limitations while 4 is an their duties might be performed
implicit limitation.) 5. Contumacy in refusing to obey orders to
produce documents or give testimony
4. Reason for the limitations which was a right to compel.201
The reason is in the past, this power was much
abused by some legislators who used it for Power to punish for contempt and local
illegitimate ends to browbeat or intimidate legislative bodies. The power to punish may not
witnesses usually for grandstanding purposes only. be claimed by local legislative bodies (Negros
There were also times when the subject of inquiry Oriental Electric Cooperative v. Sangguniang
was purely private in nature and therefore outside Panglunsod)
the scope of the powers of Congress.197
Power to punish is sui generis. The exercise of
5. Scope of questions the legislature of contempt power is a matter of
It is not necessary that every question propounded preservation and independent of the judicial
to a witness must be material to a proposed branch. Such power is sui generis. (Sabio v.
legislation. (Arnault v. Nazareno) This is because Gordon)
the legislative action is determined by the
information gathered as a whole. (Arnault v. Q: When may a witness in an investigation
Nazareno) be punished for contempt?
A: When a contumacious witness’ testimony
6. Who may be summoned under Section 21 is required in a matter into which the
Senate v. Ermita198 specified who may and who legislature or any of its committees has
may not be summoned to Section 21 hearings. jurisdiction to. (In short, the investigation
Thus, under this rule, even a Department Head must be in aid of legislation.) (Arnault v.
who is an alter ego of the President may be Nazareno)
summoned. Thus, too, the Chairman and
members of the Presidential Commission on Good Q: For how long may a private individual be
Government (PCGG) are not except from imprisoned by the legislature for contempt?
summons in spite of the exemption given to them A: For HR: Until final adjournment of the
by President Cory Aquino during her executive body. For Senate: Offender could be
rule.199 The Court ruled that anyone, except the imprisoned indefinitely by the body provided
President and Justices of the Supreme Court that punishment did not become so long as
may be summoned. to violate due process. (Arnault v. Nazareno)

7. Power to punish 8. Rights of persons


PhilComStat has no reasonable expectation of
Legislative Contempt. The power of investigation privacy over matters involving their offices in a
necessarily includes the power to punish a corporation where the government has interest.
contumacious witness for contempt. (Arnault v. (Sabio v. Gordon)
Nazareno)
9. Courts and the Committee
Acts punished as legislative contempt. The US A court cannot enjoin the appearance of a witness
Supreme Court in the case of Marshall v. Gordon200 in a legislative investigation. (Senate Blue Ribbon
mentions: Committee v. Judge Majaducon)
1. Physical obstruction of the legislative body in Bernas: The general rule of fairness, (which is what
the discharge of its duties. due process is about) could justify exclusion of
persons from appearance before the Committee.
196
This must be so inasmuch as the basis of the power to impose Q: Section 1 of EO 464 provides that “all
such a penalty is the right which the Legislature has to self- heads of departments of the Executive
preservation, and which right is enforceable during the existence of
Branch shall secure the consent of the
the legislative body. (CJ Avancena in Lopez v De los Reyes)
197 President prior to appearing before House
Cruz, Philippine Political Law, p. 155 (1995 ed).
198 of Congress.” Does this contravene the
G.R. No. 169777, April 20, 2006.
199
Sabio v. Gordon, G.R. No. 174318, October 17, 2006.
200 201
243 US 521. Sinco, Philippine Political Law, p 208 (1954ed).

I sweat, I bleed, I soar… 46


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

power of inquiry vested in the Congress? Senate cited him in contempt and ordered his arrest,
Is Section 1 valid? Neri filed a case against the Senate with the
A: Valid. The SC read Section 1 of EO Supreme Court. On March 25, 2008, the Supreme
Court ruled in favor of Neri and upheld the claim of
464 to mean that department heads need
executive privilege.
the consent of the president only in Issues:
question hour contemplated in Section (1) xxx
22 of Article VI. (The reading is dictated by (2) Did the Senate Committees commit grave
the basic rule of construction that abuse of discretion in citing Neri in contempt and
issuances must be interpreted,as much as ordering his arrest?
possible, in a way that will render it Ruling:
constitutional.) (1) xxx
(2) Yes. The Supreme Court said that the Senate
Committees committed grave abuse of discretion
Section 1 of EO 464 cannot be applied to in citing Neri in contempt. The following were the
appearances of department heads in reasons given by the Supreme Court:
inquiries in aid of legislation. Congress a. There was a legitimate claim of executive
is not bound in such instances to respect privilege.
the refusal of the department head in such b. Senate Committees did not comply with
inquiry, unless a valid claim of privilege the requirement laid down in Senate v.
is subsequently made, either by the Ermita that the invitations should contain
President or by the Executive Secretary. the “possible needed statute which
(Senate v. Ermita; EO 464 case) prompted the need for the inquiry” along
with “usual indication of the subject of
10. Power of Inquiry v. Executive Privilege inquiry and the questions relative to and
in furtherance thereof.”
Senate v. Ermita: “Congress has undoubtedly has c. A reading of the transcript of the
a right to information from the executive branch Committees’ proceeding reveals that only
whenever it is sought in aid of legislation. If the a minority of the member of the Senate
executive branch withholds such information on the Blue Ribbon Committee was present
ground that it is privileged, it must so assert it during the deliberations Thus, there is a
and state the reason therefore and why it must cloud of doubt as to the validity of the
be respected.” (Justice Carpio Morales in Senate contempt order
v. Ermita) d. The Senate Rules of Procedure in aid of
legislation were not duly published in
Neri v. Senate: Was the claim of executive accordance to Section 21 of Article VI.
privilege properly invoked in this case? Yes e. The contempt order is arbitrary and
according to the Justice Leonardo-De Castro’s precipitate because the Senate did not first
ponencia. For the claim to be properly invoked, rule on the claim of executive privilege and
there must be a formal claim by the President instead dismissed Neri’s explanation as
stating the “precise and certain reason” for unsatisfactory. This is despite the fact that
Neri is not an unwilling witness.
preserving confidentiality. The grounds relied upon Hence, the Senate order citing Neri in contempt and
by Executive Secretary Ermita are specific enough, ordering his arrest was not valid.
since what is required is only that an allegation be
made “whether the information demanded involves B. Oversight Function
military or diplomatic secrets, closed-door Cabinet
Purpose of Section 22
meetings, etc.” The particular ground must only be
Oversight Function
specified, and the following statement of grounds
Appearance of Heads of Department
by Executive Secretary Ermita satisfies the
Why Permission of President Needed
requirement: “The context in which executive
Exemption from Summons
privilege is being invoked is that the information
Appearance at the Request of Congress
sought to be disclosed might impair our diplomatic
Written Questions
as well as economic relations with the People’s
Scope of Interpellations
Republic of China.”202
Executive Session
Congress may refuse the initiative
11. Neri v. Senate Committee
Background:
This case is about the Senate investigation of Section 22. The Heads of
anomalies concerning the NBN-ZTE project. During Departments may upon their own
the hearings, former NEDA head Romulo Neri initiative, with the consent of the
refused to answer certain questions involving his President, or upon the request of
conversations with President Arroyo on the ground either House as the rules of each
they are covered by executive privilege. When the House shall provide, appear before
and be heard by such House on
202
Primer on Neri v. Senate made by Atty. Carlos Medina. any matter pertaining to their

I sweat, I bleed, I soar… 47


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

departments. Written questions It should be noted, that the exemption from


shall be submitted to the President summons applies only to Department Heads and
of Senate or the Speaker of the not to everyone who has Cabinet rank.
House of Representatives at least
three days before their scheduled Q: Does Section 22 provide for a
appearance. Interpellations shall “question hour”?
not be limited to written questions, A:
but may cover matters related
thereto. When the security of the Bernas Primer: No. the “question hour” is
State or the public interest so proper to parliamentary system where there
requires and the President so is no separation between the legislative and
states in writing, the appearance executive department. Section 22, unlike in
shall be conducted in executive the “question hour” under the 1973
session. Constitution, has made the appearance of
department heads voluntary.
1. Purpose of Section 22
But wait! The SC in Senate v. Ermita,
The provision formalizes the “oversight function” of
adopting the characterization of
Congress. Section 22 establishes the rule for the
constitutional commissioner Hilario Davide,
exercise of what is called the “oversight function” of
calls Section 22 as the provision on
Congress. Such function is intended to enable
“Question Hour”:“[Section 22] pertains to
Congress to determine how laws it has passed are
the power to conduct a question hour, the
being implemented.
objective of which is to obtain information in
pursuit of Congress’ oversight function.”
2. Oversight function
“Broadly defined, congressional oversight Reconcile: Although the Court decision calls
embraces all activities undertaken by Congress to this exercise a “question hour,” it does so
enhance its understanding of and influence over only by analogy with its counterpart in
the implementation of legislation it has enacted.”203 parliamentary practice.
The acts done by Congress in the exercise of its
oversight powers may be divided into three
categories, to wit: scrutiny, investigation, and 6. Appearance at the request of Congress
supervision.204
The Heads of Departments may upon their own
initiative, with the consent of the President, or
3. Appearance of Heads of Departments by
upon the request of either House as the rules of
their own initiative
each House shall provide, appear before and be
The Heads of Departments may upon their own heard by such House on any matter pertaining to
initiative, with the consent of the President their departments.
appear before and be heard by either House on
any matter pertaining to their departments. 7. Written Questions
Written questions shall be submitted to the Senate
4. Why permission of the President needed
President or the House Speaker at least 3 days
In deference to separation of powers, and because before their scheduled appearance.
Department Heads are alter egos of the President,
they may not appear without the permission of the 8. Scope of Interpellations
President.205
Interpellations shall not be limited to written
questions, but may cover matters related thereto.
5. Exemption from summons applies only to
Department Heads
9. Executive Session
The appearance shall be conducted in executive
session when:
(1) The public interest so requires
203
Macalintal v. Commission on Elections, 405 SCRA 614 (2) The President so states in writing.
(2003), at 705.
204 10. Congress may refuse the initiative
Macalintal v. Commission on Elections, 405 SCRA 614 (2003),
at 3. Because of separation of powers, department
205
This was explicitly mentioned in the deliberations of the 1935
secretaries may not impose their appearance upon
Constitutional Convention where some Delegates had doubts about
the propriety or constitutionality of Department Heads appearing in
Congress. Such deference is not found, by the Court’s interpretation,
in Section 21.

I sweat, I bleed, I soar… 48


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

either House.206 Hence, the Congress may refuse Section 23


the initiative taken by the department secretary.207 (2) In times of war or other national
emergency, the Congress may by
X. Emergency Powers law authorize the President, for a
limited period and subject to such
restrictions as it may prescribe, to
A. Declaration of the existence of a state of war exercise powers necessary and
B. Delegation of emergency power proper to carry out a declared
national policy. Unless sooner
A. War power withdrawn by resolution of the
1. Power to declare existence of a state of war Congress, such power shall cease
2. Rewording of the provision upon the next adjournment thereof.

Section 23. (1) The Congress, by a 1. Requisites for the delegation: (1997 Bar Q)
vote of two-thirds of both Houses in
joint session assembled, voting (1) There must be a war212 or other national
separately, shall have the sole emergency
power to declare the existence of a (2) Law authorizing the president for a limited
state of war. period and subject to such restrictions as
Congress may prescribe
1. Power to declare existence of a state of (3) Power to be exercised must be necessary and
war208 proper to carry out a declared national policy.
The Congress, by a vote of 2/3 of both Houses in
2. Duration of the delegation:
joint session assembled, voting separately, shall
have the sole power to declare the existence of a (1) Until withdrawn by resolution of Congress
state of war. (2) Until the next adjournment of Congress

2. Rewording of the provision 3. Powers that may be delegated


From 1935 Constitution’s power to declare war209 to Congress may authorize the President, to exercise
power to declare the existence of a state of war powers necessary and proper to carry out a
under 1987. declared national policy Note that the nature of
Bernas: The difference between the two delegable power is not specified. It is submitted
phraseologies is not substantial but merely in that the President may be given emergency
emphasis. The two phrase were interchangeable, legislative powers if Congress so desires.213
but the second phrase emphasizes more the fact
that the Philippines, according to Article II, Section 4. Withdrawal of powers
2, renounces aggressive war as an instrument of Congress may do it by a mere resolution.214 And
national policy.210 such resolution does not need presidential
approval.215
Q: May a country engage in war in the
absence of declaration of war? XI. BILLS/ LEGISLATIVE PROCESS
A: Yes. The actual power to make war is
lodged in the Executive. The executive when
necessary may make war even in the Origination Clause
absence of a declaration of war.211 One bill-one subject rule
Passage of a bill
B. Delegation of emergency powers Presidential Approval, Veto or Inaction; Legislative
Reconsideration
1. Requisites for Delegation Item Veto
2. Duration of delegation Doctrine of inappropriate provisions
3. Powers that may be delegated Executive Impoundment
4. Withdrawal of powers Legislative Veto

A. Origination Clause
206
Bernas Primer at 263 (2006 ed.)
207
Bernas Commentary, p 744 (2003 ed). 212
War is defined as “armed hostilities between the two states. (II
208
War is defined as “armed hostilities between the two states. (II RECORD 169)
RECORD 169) 213
Bernas Primer at 265 (2006 ed.)
209
Wording of the 1935 Constitution. 214
See concurring opinion of Justice Padilla in Rodriguez v. Gella,
210
Bernas Commentary, p 745 (2003 ed). 49 Off. Gaz. 465, 472.
211 215
Bernas Primer at 264 (2006 ed.) Bernas Primer at 265 (2006 ed.)

I sweat, I bleed, I soar… 49


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

Exclusive Origination Clause law will be passed. (Tolentino v. Secretary of


Bills that must exclusively originate from HR Finance)
Origination from the House, Meaning
Reason for exclusive origination 4. Reason for exclusive origination
Senate may propose amendments The district representatives are closer to the pulse
Scope of Senate’s power to introduce amendments of the people than senators are and are therefore
in a better position to determine both the extent of
Section 24. All appropriation, the legal burden they are capable of bearing and
revenue or tariff bills, bills the benefits that they need.222 It is more numerous
authorizing increase of the public in membership and therefore also more
debt, bills of local application and representative of the people.223
private bills shall originate
exclusively in the House of 5. Senate may propose amendments
Representatives, but the Senate The addition of the word “exclusively” in the
may propose or concur with Constitution is not intended to limit the power of the
amendments. Senate to propose amendments to revenue bills.
(Tolentino v. Sec. of Finance)
1. Origin of money bills, private bills and bills of
local application 6. Scope of the Senate’s power to introduce
All appropriation216, revenue217 or tariff bills218, bills amendments
authorizing increase of the public debt219, bills of Once the House has approved a revenue bill and
local application220 and private bills221 shall originate passed it on to the Senate, the Senate can
exclusively in the House of Representatives, but completely overhaul it, by amendment of parts or
the Senate may propose or concur with by amendment by substitution, and come out
amendments. with one completely different from what the
House approved. Textually, it is the “bill” which
2. Bills that must exclusively originate from the must exclusively originate from the House; but the
HR: “law” itself which is the product of the total
(1) Appropriation bills bicameral legislative process originates not just
(2) Revenue bills from the House but from both Senate and House.
(3) Tariff bills (Tolentino v. Secretary of Finance)
(4) Bills authorizing increase of the public debt
(5) Bills of local application (Discussion of Section 25 can be found after Section
(6) Private bills 29(3))

3. Origination from the House B. One bill-one subject rule


The exclusivity of the prerogative of the House of Mandatory Nature of the Rule
Representatives means simply that the House Purpose of the Rule
alone can initiate the passage of revenue bill, such Liberal Interpretation of the Rule
that, if the House does not initiate one, no revenue Germane
Not Germane

216
An appropriation bill is one whose purpose is to set aside a sum of Section 26. (1) Every bill passed
money for public use. Only appropriation bills in the strict sense of by the Congress shall embrace
the word are comprehended by the provision; bills for other purposes only one subject shall be
which incidentally set aside money for that purpose are not included. expressed in the title thereof.
Bernas Commentary, p 748 (2003 ed).
217
A revenue bull is one that levies taxes and raises funds for the 1. Mandatory nature of the rule
government. Cruz, Philippine Political Law, p. 144 (1995 ed).
218 Every bill passed by the Congress shall embrace
A tariff bill specifies the rates of duties to be imposed on imported
articles. Cruz, Philippine Political Law, p. 144 (1995 ed).
only one subject. The subject shall be expressed in
219 the title of the bill. This rule is mandatory.
A bill increasing public debt is illustrated by one floating bonds
for public subscription redeemable after a certain period. Cruz,
Philippine Political Law, p. 144 (1995 ed). The requirement is satisfied when:
220
Bills of local application are those which is limited to specific (1) All parts of the law relate to the subject
localities, such for instance as the creation of a town. Bernas expressed in the title
Commentary, p 748 (2003 ed). (2) It is not necessary that the title be a complete
221
Private bills are those which affect private persons, such for index of the content (PHILCONSA v. Gimenez)
instance as a bill granting citizenship to a specific foreigner. Bernas
Commentary, p 748 (2003 ed). Private bills are illustrated by a bill 222
granting honorary citizenship to a distinguished foreigner. Cruz, . Bernas Commentary, p 748 (2003 ed).
223
Philippine Political Law, p. 155 (1995 ed). Cruz, Philippine Political Law, p. 145 (1995 ed).

I sweat, I bleed, I soar… 50


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

2. Purpose of the Rule: Reason for three readings


(1) To prevent hodge-podge or log-rolling
legislation Section 26
(2) To prevent surprise or fraud upon the legislature (2) No bill passed by either House
(3) To fairly appraise the people. (Central Capiz v. shall become a law unless it has
Ramirez) passed three readings on separate
days, and printed copies whereof in
3. Liberal interpretation of the rule its final form have been distributed
The rule should be given a practical rather than a to its Members three days before
strict construction. It should be sufficient its passage, except when the
compliance with such requirement if the title President certifies to the necessity
expresses the general subject and all the of its immediate enactment to meet
provisions of the statute are germane to that a public calamity or emergency.
general subject. (Sumulong v. COMELEC) Upon the last reading of a bill, no
amendment thereto shall be
4. Germane allowed, and the vote thereon shall
A partial exemption from the increase of tax imposed is be taken immediately thereafter,
not a deviation from the general subject of the law. and the yeas and the nays entered
(Insular Lumber Co. v. CTA) in the Journal.

A tax may be germane and reasonably necessary for the 1. Rules


accomplishment of the general object of the decree for
regulation. (Tio v. VRB) (1) No bill passed by either House shall become a
law unless it has passed three readings on
A repealing clause does not have to be expressly separate days.
included in the title of the law. (Phil. Judges Assoc. v. (2) Printed copies of the bill in its final form should
Prado) be distributed to the Members 3 days before
its passage (except when the President
The creation of a new legislative district is germane to
certifies to the necessity of its immediate
“the conversion of a municipality to an urbanized city.”
(Tobias v. Abalos) enactment to meet a public calamity or
emergency).
The reorganization of the remaining administrative (3) Upon the last reading of a bill, no amendment
regions is germane to the general subject of “establishing thereto shall be allowed.
the ARMM”. (Chiongbayan v. Orbos) (4) The vote on the bill shall be taken immediately
after the last reading of a bill.
The expansion in the jurisdiction of the Sandiganbayan (5) The yeas and the nays shall be entered in the
does not have to be expressly stated in the title of the law
Journal.
(An Act Further Defining the Jurisdiction of the
Sandiganbayan) because such is the necessary Exception. The certification of the President
consequence of the amendment. (Lacson v. Executive dispenses with the reading on separate days and
Secretary) the printing of the bill in the final form before its
final approval. (Tolentino v. Secretary of Fincance)
A provision that states that “no election officer shall hold Operative. All decrees which are not inconsistent
office for more than four years” is relevant to the title “An with the Constitution remain operative until they are
Act Providing for a General Registration of voters, amended or repealed. (Guingona v. Carague)
Adopting a System of Continuing Registration,
Prescribing Procedures Thereof and Authorizing the
Appropriation of Funds Therefor” as it seeks to ensure the 2. Procedure:224
integrity of the registration process by providing 1. A bill is introduced by any member of the
guidelines for the COMELEC to follow in the House of Representatives or Senate except for
reassignment of election officers. (De Guzman v.
some measures that must originate only in the
COMELEC)
former chamber.
The abolition of 2 municipalities is but a logical 2. The first reading involves only a reading of
consequence of its merger to create a city. the number and title of the measure and its
referral by the Senate President or the
5. Not Germane Speaker to the proper committee for study.
Prohibition of places of amusement should be included 3. The bill may be killed in the committee or it
in the title of the law which only provides for the may be recommended for approval, with or
regulation of places of amusement. (De la Cruz v. Paras)
without amendments, sometimes after public
hearings are first held thereon. (If there are
C. Passage of a bill
other bills of the same nature or purpose, they
Rules
Procedure 224
Cruz, Philippine Political Law, p. 155 (1995 ed).

I sweat, I bleed, I soar… 51


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

may all be consolidated into one bill under Legislative Approval of the bill
common authorship or as a committee bill.) Presidential Inaction
4. Once reported out, the bill shall be calendared
for second reading. It is at this stage that the Section 27. (1)Every bill passed
bill is read in its entirety, scrutinized, debated by the Congress shall, before it
upon and amended when desired. The second becomes a law, be presented to the
reading is the most important stage in the President. If he approves the same,
passage of the bill. he shall sign it; otherwise, he shall
veto it and return the same with his
5. The bill as approved in second reading is
objections to the House where it
printed in its final form and copies thereof are
originated, which shall enter the
distributed at least three days before the third
objections at large in its Journal,
reading. On third reading, the members
and proceed to consider it. If, after
merely register their votes and explain them if
such reconsideration, two-thirds of
they are allowed by the rules. No further
all the Members of such House
debate is allowed.
shall agree to pass the bill, it shall
6. Once the bill passes third reading, it is sent to be sent, together with the
the other chamber, where it will also undergo objections to the other House by
the three readings. which it shall likewise be
7. If also approved by the second House, it will reconsidered, and if approved by
then be submitted to the President for his two-thirds of all the Members of
consideration. that House, it shall become a law.
In all such cases, the votes of each
8. The bill is enrolled when printed as finally
House shall be determined by yeas
approved by the Congress, thereafter
or nays, and the names of the
authenticated with the signatures of the
Members voting for or against shall
Senate President, the Speaker, and the
be entered in its Journal. The
Secretaries of their respective chambers, and
President shall communicate his
approved by the President.
veto of any bill to the House where
it originated within thirty days after
3. Reason for three readings
the date of receipt thereof;
To address the tendency of legislators, (on the last otherwise, it shall become a law as
day of the legislative year when legislators were if he had signed it.
eager to go home), to rush bills through and insert
matters which would not otherwise stand scrutiny in
1. Three methods by which a bill may become a
leisurely debate.225
law: (1988 Bar Question)
Q: If the version approved by the Senate 1. When the President signs it;
is different from that approved by the 2. When the President vetoes it but the veto is
House of Representatives, how are the overridden by two-thirds vote of all the
differences reconciled? members of each House;
A: In a bicameral system bills are 3. When the President does not act upon the
independently processed by both Houses measure within 30 days after it shall have
of Congress. It is not unusual that the final been presented to him.
version approved by one House differs
from what has been approved by the 2. Presidential approval
other. The “conference committee,” (1) Passed bill is presented to the President
consisting of members nominated from (2) President signs the bill if he approves the same
both Houses, is an extra-constitutional (3) The bill becomes a law.
creation of Congress whose function is to
propose to Congress ways of reconciling 3. Presidential veto
conflicting provisions found in the Senate (1) Passed bill is presented to the President
version and in the House version of a bill. (2) President vetoes the bill if he does not approve
of it.
D. Presidential Approval, Veto or Inaction; (3) He returns the passed bill with his objections to
Legislative Reconsideration the House where it originated. (Veto Mesasge)
Three Methods General rule: If the president
Presidential Approval disapproves the bill approved by
Presidential Veto Congress, he should veto the entire
bill. He is not allowed to veto
225 separate items of a bill.
See Bernas Commentary, p 760 (2003 ed).
Exceptions:

I sweat, I bleed, I soar… 52


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

(1) President may veto an item in


cases of appropriation,
revenue and tariff bills.
(2) President may veto
inappropriate provisions or
riders.

4. Legislative reconsideration of the bill (1993


Bar Question)
(1) The House where the bill originated enters the
objections of the President at large in its Journal.
(2) Said House reconsiders the bill.
(3) 2/3 of all the Members of such House agree to
pass the bill.
(4) The bill together with the objections is sent to
the other House by which it is also reconsidered.
(5) The other House approves the bill by 2/3 of all
the members of that House.
(6) The bill becomes a law.
In all such cases, the votes of each House shall be
determined by yeas or nays.
The names of the Members voting for or against
shall be entered in its Journal.

Q: When does the Constitution require that


the yeas and nays of the Members be taken
every time a House has to vote?
A:
1. Upon the last and third readings of a bill
(art. 6 sec26(2))
2. At the request of 1/5 of the members
present (art 6 sec 16(4))
3. In repassing a bill over the veto of the
President (art 6 sec 27(1))

5. Presidential Inaction
(1) Passed bill is presented to the President
(2) President does not approve nor communicate
his veto to the House where the bill originated
within 30 days.
(3) The bill becomes a law.

I sweat, I bleed, I soar… 53


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

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, savings” can by no means be considered a specific
or tariff bill, but the veto shall not appropriation of money. (Gonzales v. Macaraig)
affect 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 provisions The special provision that all purchases of
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.226 (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

226
Bernas Primer, p. 276 (2006 ed.)

I sweat, I bleed, I soar… 54


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

government by taxation and the power to spend martial rule product, which imposed a ten peso
it.227 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 B. Limitations on Power of Taxation
progressive 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 alive228 property.231

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 are
body of the state by virtue of its sovereignty for the substantial and not arbitrary;
support of the government and all public needs. (2) the categorization is germane to achieve the
Justice Holmes said: “Taxes are what we pay for legislative purpose;
civilized society.” (3) the law applies, all things being equal, to both
present and future conditions; and
5. Public Purpose (4) the classification applies equally well to all
It is fundamental in democratic governments that those belonging to the same class.
taxes may be levied for public purpose only.
Without this element, a tax violates the due There is a difference between the homeless people
process clause and is invalid.229 In Planters and the middle class. The two social classes are
Products, Inc. (PPI) v. Fertiphil Corp.230 the Court differently situated in life. (Tolentino v. Sec. of
had occasion to review the validity of LOI 1465, a Finance)

EQUITABLE
227
Bernas Commentary, p 785 (2003 ed).
228
Bernas Primer at 278 (2006 ed.)
229
Sinco, Philippine Political Law, p 579 (1954ed).
230 231
G.R. No. 166006, March 14, 2008. Cruz, Philippine Political Law, p. 168 (1995 ed).

I sweat, I bleed, I soar… 55


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

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.232 (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.233 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
 the existing rates may be increased or
is addressed to Congress and not a judicially
decreased to any level on one or several
enforceable right. (Tolentino v. Sec. of Finance)
stages but in no case shall be higher
than a maximum of 100% as valorem
Indirect taxes. The Constitution does not prohibit
2) To establish import quota or to ban imports of
the imposition of indirect taxes, which are
any commodity, as may be necessary
regressive. The provision simply means that direct
3) To impose an additional duty on all imports not
taxes are to be preferred and indirect taxes should
exceeding 10% ad valorem whenever
be minimized as much as possible. It does not
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
progressive system of taxation. (Tolentino v. Sec. of 1) Conduct by the Tariff Commission of an
Finance) investigation in a public 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
2) The power of the President to increase or
Section 28
decrease the rates of import duty within the
(2) The Congress may by law,
abovementioned limits fixed in the Code shall
authorize the President to fix within
include the modification in the form of duty.
specified limits, and subject to such
limitations and restrictions at it may  In such a case the corresponding ad
impose, tariff rates, import and valorem or specific equivalents of the duty
export quotas, tonnage and with respect to the imports from the
wharfage dues, and other duties or principal competing country for the most
imposts within the framework of the recent representative period shall be used
national development program of as bases. (Sec 401 TCC)
the Government.
D. Exempted from taxation
1. Conditions in the delegation of the power to Exempted from taxation
tax: Kind of tax exemption
“Exclusively”, Meaning
(1) Delegation must be made by law
Elements in determining a charitable institution
(2) The power granted is to fix tariff rates, import
Reason for Requirement of Absolute Majority
and export quotas, tonnage and wharfage dues,
and other duties and impost.
Section 28
232
Cruz, Philippine Political Law, p. 168 (1995 ed). (3) Charitable institutions, churches
233 and parsonages or convents
Bernas Commentary, p 779 (2003 ed). appurtenant thereto, mosques,

I sweat, I bleed, I soar… 56


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

non-profit cemeteries and all lands, power to tax and consequent loss of revenue to the
buildings, and improvement government.
actually, directly, and exclusively
used for religious, charitable, or POWER OF APPROPRIATION/ SPENDING POWER
educational purposes shall be
exempt from taxation. A. Spending Power
1. Spending Power
1. Exempted: 2. Reason
(1) Charitable institutions 3. “By Law”
(2) Churches
(3) Parsonages or convents appurtenant to Section 29. (1) No money shall be
churches paid out of the Treasury except in
(4) Mosques pursuance of an appropriation
(5) Non-profit cemeteries made by law.
(6) All lands, buildings, and improvement actually,
directly and exclusively used for religious, 1. Spending Power
charitable, or educational purpose shall be exempt The spending power of Congress is stated in
from taxation. Section 29(1): “No money shall be paid out of the
Treasury except in pursuance of an appropriation
2. Kind of tax exemption under 28(3) made by law.” (1988, 1992 Bar Question)
The exemption created by Section 28 is only for
taxes assessed as property taxes and not excise 2. Reason
tax. (CIR v. CA) Behind the provision stands the principle that the
people’s treasure that the people’s treasure may be
3. “Exclusively” sent only with their consent. That consent is to be
The phrase “exclusively used for educational expressed either in the Constitution itself or in valid
purposes” extends to facilities which are incidental acts of the legislature as the direct representative
to and reasonably necessary for the of the people.234
accomplishment of the main purpose. (Abra Valley
College v. Aquino) 3. “By law”
The provision does not say “appropriation by
PCGG has no power to grant tax exemptions Congress” but rather “by law”, a term which covers
(Chavez v. PCGG) both statutes and the Constitution.235

4. Elements to be considered in determining B. Appropriation


whether an enterprise is a charitable Appropriation
institution/entity: Classification
(1) Statute creating the enterprise CDF
(2) Its corporate purposes
(3) Its constitution and by-laws 1. Appropriation
(4) Method of administration An appropriation measure may be defined as a
(5) Nature of actual work performed statute the primary and specific purpose of which is
(6) Character of services rendered to authorize the release of public funds from the
(7) Indefiniteness of the beneficiaries treasury.236 A law creating an office and providing
(8) Use and occupation of the properties (Lung funds therefore is not an appropriation law since
Center v. QC) the main purpose is not to appropriate funds but to
create the office.237
Section 28
(4) No law granting any tax 2. Classification of Appropriation Measures:
exemption shall be passed without
the concurrence of a majority of all
(4) General- The general appropriations law
the Members of the Congress. passed annually is intended to provide for 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
majority, or a majority of those present and voting. 234
The above provision requires an absolute majority See Sinco, Philippine Political Law, p 208 (1954ed).
235
of the entire membership of the Congress because Sinco, Philippine Political Law, p 211 (1954ed).
a tax exemption represents a withholding of the 236
Cruz, Philippine Political Law, p. 158 (1995 ed).
237
Cruz, Philippine Political Law, p. 159 (1995 ed).

I sweat, I bleed, I soar… 57


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

(5) Special- designed for a specific purpose 4. Procedure for approving appropriations for
such as the creation of a fund for the relief of Congress. (art 6 sec 25(3))
typhoon victims. 5. Prohibition against transfer of appropriations. (art
6 sec 25(5))
CDF 6. Rule on automatic reappropriation. (art 6 sec
25(7))
A law creating CDF was upheld by the SC saying
7. Prohibition against appropriations for sectarian
that the Congress itself has specified the uses of
benefit. (art 6 sec 29(2))
the fund and that the power given to Congressmen
and Vice-President was merely recommendatory to
D. Non-establishment provision
the President who could approve or disapprove the
recommendation. (PHILCONSA v. Enriquez)
Section 29
C. Limitations on Appropriations (2) No public money or property
Extra-Constitutional Limitations shall be appropriated, applied,
Constitutional Limitations paid, or employed, directly or
indirectly, for the use, benefit, or
1. Extra-Constitutional Limitations support of any sect, church,
denomination, sectarian institution,
or system of religion, or of any
Implied Limitations
priest, preacher, minister, or other
1. Appropriation must be devoted to a public
religious teacher or dignitary as
purpose
such, except when such priest,
2. The sum authorized must be determinate or at
preacher, minister, or dignitary is
least determinable.238
assigned to the armed forces, or to
any penal institution, or
2. Constitutional Limitations
government orphanage or
leprosarium.
Specific Limitations on the power of
appropriation239 [Sec 24, Sec 25(6)]
No public money or property shall be appropriated,
1. Appropriation bills should originate in the House
applied, paid, or employed, directly or indirectly, for
of Representatives. (art. 6 sec 24)
the use, benefit, or support of any sect, church,
2. Discretionary funds appropriated for particular
denomination, sectarian institution, or system of
officials shall be disbursed only for public
religion, or of any priest, preacher, minister, or
purposes to be supported by appropriate
other religious teacher or dignitary as such.
vouchers and subject to such guidelines as
may be prescribed by law. (art. 6 sec 25(6)
Public money may be paid to a priest, preacher,
minister, or dignitary if he is assigned to the armed
Constitutional limitations on special
forces, or to any penal institution, or government
appropriation measures [Sec 25(4), Sec 29(2)]
orphanage or leprosarium.
1. Must specify the public purpose for which the
sum is intended. (art 6 sec 25 (4))
General or specific appropriation. Whether the
2. Must be supported by funds actually available as
appropriation be general or specific, it must
certified to by National Treasurer, or to be
conform to the prohibition against the use of public
raised by a corresponding revenue proposal
funds or property for sectarian purposes.241
included therein. (art 6 sec 25(4))
3. Prohibition against appropriations for sectarian
Purpose of the provision. This provision must be
benefit. (art 6 sec 29(2))240
read with Article III, Section 5 on religious freedom
and Article II, Section 6 on the separation of
Constitutional rules on general appropriations
Church and State. Its purpose is to further bolster
law [Sec 25 (1)(2)(3)(5)(7), Sec 29(2)]
this principle and emphasize the neutrality of the
1. Congress may not increase the appropriations
State in ecclesiastical matters.
recommended by the President. (art 6 sec
25(1))
E. Special Fund
2. The form, content, and manner of preparation for
the budget shall be prescribed by law. (art 6
sec 25(1)) Section 29
3. Rule on riders. (art 6 sec 25(2)) (3) All money collected on any tax
levied for a special purpose shall
be treated as a special fund and
238
Cruz, Philippine Political Law, p. 160 (1995 ed). paid out for such purpose only. If
239
Cruz, Philippine Political Law, p. 160 (1995 ed).
240 241
See Cruz, Philippine Political Law, p. 164 (1995 ed). Cruz, Philippine Political Law, p. 164 (1995 ed.)

I sweat, I bleed, I soar… 58


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

the purpose for which a special amount that the operation of his department
fund was created has been fulfilled requires.244
or abandoned, the balance, if any,
shall be transferred to the general Preparation of Budget. The form, content, and
funds of the Government. manner of preparation of the budget shall be
prescribed by law.
Tax levied for a special purpose. All money
collected on any tax levied for a special purpose 2. Rule on riders
shall be treated as a special fund.
Section 25
For such purpose only. All money collected on (2) No provision or enactment shall
any tax levied for a special purpose shall be paid be embraced in the general
out for such purpose only. appropriations bill unless it relates
specifically to some particular
Balance to the general funds. If the purpose for appropriation therein. Any such
which a special fund was created has been fulfilled provision or enactment shall be
or abandoned, the balance, if any, shall be limited in its operation to the
transferred to the general funds of the appropriation to which it relates.
Government. (2001 Bar Question)

F. General Appropriation Every provision or enactment in the general


Budget and Appropriation appropriations bill must relate specifically to some
Rule on Riders particular appropriation therein.
Special Appropriations Bill
No Transfer of Appropriations Every such provision or enactment shall be limited
Discretionary Funds in its operation to the appropriation to which it
Automatic Re-enactment relates

1. Budget and Appropriation Purpose. To prevent riders or irrelevant provisions


that are included in the general appropriations bill
Section 25. (1) The Congress may to ensure their approval.245
not increase the appropriations
recommended by the President for Procedure in approving appropriations for the
the operation of the Government as Congress
specified in the budget. The form, (3) The procedure in approving
content, and manner of preparation appropriations for the Congress
of the budget shall be prescribed shall strictly follow the procedure
by law. for approving appropriations for
other departments and agencies.
Budget. The budget is only a proposal, a set of
recommendations on the appropriations to be Same Procedure. The procedure in approving
made for the operations of the government. It is appropriations for the Congress shall strictly follow
used as a basis for the enactment of the general the procedure for approving appropriations for
appropriations law.242 other departments and agencies.

The budget as a restriction on appropriations. Reason. To prevent the adoption of appropriations


The Congress may not increase the appropriations sub rosa by the Congress.
recommended by the President for the operation of
the Government as specified in the budget. 3. Special Appropriations bill

Reason. The reason for the above provision is the (4) A special appropriations bill
theory that the President knows more about the shall specify the purpose for which
needed appropriations than the legislature.243 Being it is intended, and shall be
responsible for the proper administration of the supported by funds actually
executive department, the President is ordinarily available as certified by the
the party best qualified to know the maximum National Treasurer, or to be raised

242 244
Cruz, Philippine Political Law, p. 161 (1995 ed.) Sinco, Philippine Political Law, p 216 (1954ed).
243 245
Cruz, Philippine Political Law, p. 161 (1995 ed.) Cruz, Philippine Political Law, p. 162 (1995 ed.)

I sweat, I bleed, I soar… 59


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

by a corresponding revenue
proposal therein. (6) Discretionary funds
A special appropriations bill shall: appropriated for particular officials
(1) Specify the purpose for which it is intended; shall be disbursed only for public
(2) Be supported by funds actually available as purposes to be supported by
certified by the National Treasurer; or appropriate vouchers and subject
(3) Be supported by funds to be raised by a to such guidelines as may be
corresponding revenue proposal therein. prescribed by law.

4. No transfer of appropriations Public Purpose. Discretionary funds appropriated


for particular officials shall be disbursed only for
(5) No law shall be passed public purposes to be supported by appropriate
authorizing any transfer of vouchers and subject to such guidelines as may be
appropriations; however, the prescribed by law.
President, the President of the
Senate, the Speaker of the House Reason. This was thought necessary in view of the
of Representatives, the Chief many abuses committed in the past in the use of
Justice of the Supreme Court, and discretionary funds. In many cases, these funds
the heads of Constitutional were spent for personal purposes, to the prejudice
Commissions may, by law, be and often even without the knowledge of the
authorized to augment any item in public.248
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
Reason. This provision prohibits one department deemed reenacted and shall
from transferring some of its funds to another remain in force and effect until the
department and thereby make it beholden to the general appropriations bill is
former to the detriment of the doctrine of passed by the Congress.
separation of powers. Such transfers are also
unsystematic, besides in effect disregarding the will Reason. This is to address a situation where
of the legislature that enacted the appropriation Congress fails to enact a new general
measure.246 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
one department to another.247 passed increasing the appellate
jurisdiction of the Supreme Court
Exclusive list. The list of those who may be as provided in this Constitution
authorized to transfer funds under this provision is without its advice and 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.
246
Cruz, Philippine Political Law, p. 164 (1995 ed.)
247 248
Cruz, Philippine Political Law, p. 164 (1995 ed.) Cruz, Philippine Political Law, p. 160 (1995 ed.)

I sweat, I bleed, I soar… 60


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

SC’s Advice and Concurrence Needed. The The power of the people to propose amendments
Congress may increase the appellate jurisdiction of to the Constitution or to propose and enact
the SC but only with its advice and concurrence. legislation.

Reason. To prevent further additions to the present Three systems of Initiative:


tremendous case load of the Supreme Court which 1. Initiative on the Constitution which refers to a
includes the backlog of the past decades.249 petition proposing amendments to the
Constitution;
B. Titles of Royalty and Nobility
2. Initiative on statutes which refers to a petition
proposing to enact a national legislation.
Section 31. No law granting a title
of royalty or nobility shall be 3. Initiative on local legislation which refers to a
enacted. petition proposing to enact a 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
Initiative and Referendum legislative body, respectively, proposing the
initiative adoption, enactment, repeal, or amendment, of any
Referendum law, ordinance or resolution. (Sec. 13 RA 6735)

Section 32. The Congress shall as Limitations on local initiative:


early as possible, provide for a 1. The power of local initiative shall not be
system of initiative and referendum, exercised more than once a year;
and the exceptions therefrom, 2. Initiative shall extend only to subjects or
whereby the people can directly matters which are within the legal matters
propose and enact laws or approve which are within the legal powers of the local
or reject any act or law or part legislative bodies to enact;
thereof passed by the Congress or 3. If any time before the initiative is held, the local
local legislative body after the legislative body shall adopt in toto the
registration of a petition therefor proposition presented, the initiative shall be
signed by at least ten per centum cancelled. However, those against such action
of the total number of registered may if they so desire, apply for intitiative.
voters, of which every legislative
district must be represented by at Q: Petitioners filed a petition with COMELEC
least three per centum of the to hold a plebiscite on their petition for an
registered voters thereof. initiative to amend the Constitution by
adopting a unicameral-parliamentary form of
1. Initiative and referendum government and by providing for transitory
The Congress shall as early as possible, provide provisions.
for a system of initiative and referendum, and the A: An initiative to change the Constitution
exceptions therefrom. applies only to an amendment and not
revision. Revision broadly implies a change
Petition. A petition must be signed by at least 10% that alters basic principle in the Constitution
of the total number of registered voters, of which like altering the principle of separation of
every legislative district must be represented by at powers or the system of checks and
least 3% of the registered voters thereof. The balance. The initiative of the petitioners is a
petition must then be registered. revision and not merely an amendment.
(Lambino v. COMELEC)
RA 6735. The current implementing law is RA
6735, an Act Providing for System of Initiative and 3. Referendum
Referendum. Power of the electorate to approve or reject
legislation through an election called for the
2. Initiative. purpose.

Two Classes of Referendum


249
Cruz, Philippine Political Law, p. 146 (1995 ed.)

I sweat, I bleed, I soar… 61


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

1. Referendum on statutes which refers to a


petition to approve or reject an act or la, or part
thereof, passed by Congress;
2. Referendum on local laws which refers to a
petition to approve or reject a law, resolution or
ordinance enacted by regional assemblies and
local legislative bodies. (Sec. 2(c) RA 6735)

Prohibited Measures. The following cannot be


subject of an initiative or referendum:
1. Petition embracing more than one subject
shall be submitted to the electorate.
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.

I sweat, I bleed, I soar… 62


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

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 than the


II. The President (§ 2-13) sum of specific powers enumerated in the
Constitution. It includes residual powers251
III. The Vice-President not specifically mentioned in the Constitution.
IV. Powers of the President (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 (§ 19) faithfully executed. (Webb v. De Leon)252
IX. Borrowing Power (§ 20)
3. BUT the President cannot dispose of State
X. Foreign Affairs Power (§ 21) property unless authorized by law.253
XI. Budgetary Power (§ 22) 4. Enforcement and administration of election
XII. Informing Power (§ 23) laws is the authority of the COMELEC.254
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].255
Cabinet
E. Executive Immunity from suit
Section 1. The Executive power
shall be vested in the President of
Rules on Immunity during tenure
the Philippines
1. The President is immune from suit during his
tenure.256
A. Executive Power (Definition)
251
The executive power is the power to enforce and Residual Powers are those which are implicit in and correlative to
administer the laws.250 (NEA v. CA, 2002) the paramount duty residing in that office to safeguard and protect
general welfare.
252
See Jacinto Jimenez, Political Law Compendium p.306 (2005 ed.)
253
See Laurel v. Garcia (Roponggi Case)
250 254
Justice Irene Cortes in the case of Marcos v. Manglapus (1989) Cruz, Philippine Political Law, p. 308 (1995 ed).
opines: “It would be inaccurate… to state that ‘executive power’ is 255
the power to enforce laws, for the President is head of State as well See Bernas Commentary, p 800 (2003 ed).
256
as head of government and whatever power inhere in such positions The incumbent President is immune from suit or from being
pertain to the office unless the Constitution itself withholds it.” brought to court during the period of their incumbency and tenure.
(In re Saturnino Bermudez,1986)
M.T., in his attempt to provide a comprehensive interpretation of “The President during his tenure of office or actual incumbency, may
executive power provides: not be sued in ANY civil or criminal case. It will degrade the dignity
“Executive power refers to the power of the President: of the high office of the President, the Head of State, if he can be
(a) to execute and administer laws (b) power enumerated in the dragged into court litigations while serving as such.” (David v.
Constitution (c) those powers that inhere to the President as head of [Ermita])
state and head of government, and (d) residual powers.” Article VII, Section 17 (1st Sentence) of the 1973 Constitution
“Executive power refers to the totality of the President’s power.” provides: “The President shall be immune from suit during his
tenure.” The immunity granted by the 1st sentence while the President
According to Sinco, “Executive power refers to the legal and was in office was absolute. The intent was to give the President
political functions of the President involving the exercise of absolute immunity even for wrongdoing committed during his
discretion. (Philippine Political Law, p.242 (1954 ed.) tenure. (Bernas, Philippine Political Law, 1984) Although the new

I sweat, I bleed, I soar… 63


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

2. He may be filed impeachment complaint Presidential Communications are Presumptively


during his tenure. (Article XI) Privileged
3. The President may not be prevented from Executive Privilege v. Public Interest
instituting suit (Soliven v. Makasiar) Power of Inquiry v. Executive Privilege
4. There is nothing in our laws that would prevent Case Digest of Neri v. Senate
the President from waiving the privilege. The
President may shed the protection afforded by 1) Definition
the privilege. (Soliven v. Makasiar) Briefly and in simplest terms, it is the power of the
5. Heads of departments cannot invoke the President to withhold certain types of information
presidents’ immunity (Gloria v. CA) from the public, from the courts, and from
Rules on Immunity after tenure Congress.
6. Once out of office, even before the end of the
2) How invoked
six year term, immunity for non-official acts is
lost. Such was the case of Joseph Estrada. Invoked in relation to specific categories of
(See Bernas Commentary, p 804 (2003 ed.) It information. Executive privilege is properly
could not be used to shield a non-sitting invoked in relation to specific categories of
President from prosecution for alleged criminal information and not to categories of persons.
acts done while sitting in office. (Estrada v. (While executive privilege is a constitutional
Disierto; See Romualdez v. Sandiganbayan) concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and
Note: In David v. Arroyo, the Court held that it is the context in which it is made. Noticeably absent
improper to implead President Arroyo as is any recognition that executive officials are
respondent. However, it is well to note that in exempt from the duty to disclose information by the
Rubrico v. Arroyo, Min. Res., GR No, 180054, mere fact of being executive officials. (Senate v.
October 31, 2007, the Supreme Court ordered the Ermita)
respondents, including President Arroyo, to make a
return of the writ: “You, respondents President 3) Who can invoke
Macapagal Arroyo….are hereby required to make In light of this highly exceptional nature of the
a return of the writ before the Court of Appeals…” privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She
Reasons for the Privilege: may of course authorize the Executive Secretary
1. Separation of powers. The separation of to invoke the privilege on her behalf, in which case
powers principle is viewed as demanding the the Executive Secretary must state that the
executive’s independence from the judiciary, so authority is "By order of the President," which
that the President should not be subject to the means that he personally consulted with her. The
judiciary’s whim.257 privilege being an extraordinary power, it must be
2. Public convenience. By reason of public wielded only by the highest official in the executive
convenience, the grant is to assure the exercise of hierarchy. In other words, the President may not
presidential duties and functions free from any authorize her subordinates to exercise such power.
hindrance or distraction, considering that the Chief (Senate v. Ermita) (It follows, therefore, that when an
Executive is a job that, aside from requiring all of official is being summoned by Congress on a matter
the office-holder’s time, also demands undivided which, in his own judgment, might be covered by
executive privilege, he must be afforded reasonable time
attention (Soliven v. Makasiar) to inform the President or the Executive Secretary of
the possible need for invoking the privilege. This is
F. Executive Privilege necessary in order to provide the President or the
Definition Executive Secretary with fair opportunity to consider
How Invoked whether the matter indeed calls for a claim of executive
Who may invoke privilege. If, after the lapse of that reasonable time,
Privilege Not Absolute neither the President nor the Executive Secretary invokes
the privilege, Congress is no longer bound to respect the
Types of Executive Privilege (Neri v. Senate) failure of the official to appear before Congress and may
Variety of Executive Privilege (Senate v. Ermita) then opt to avail of the necessary legal means to compel
Kinds of Executive Privilege (Neri v. Senate) his appearance.) (Senate v. Ermita)
Elements of Presidential Communications Privilege
4) Privilege Not Absolute
Claim of executive privilege is subject to balancing
Constitution has not reproduced the explicit guarantee of presidential against other interest. In other words,
immunity from suit under the 1973 Constitution, presidential confidentiality in executive privilege is not
immunity during tenure remains as part of the law. absolutely protected by the Constitution. Neither
(See Bernas Commentary, p 804 (2003 ed.) the doctrine of separation of powers, nor the need
for confidentiality of high-level communications,
257
See Almonte v. Vasquez

I sweat, I bleed, I soar… 64


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

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 Privilege258 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 is necessary to guarantee the candor of
by 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
of separation of powers Requirement in invoking the privilege: formal
and the President’s claim of privilege. “Congress has undoubtedly
unique constitutional has a right to information from the executive
role branch whenever it is sought in aid of legislation. If
the executive branch withholds such information on
258
Primer on Neri v. Senate made by Atty. Carlos Medina. the ground that it is privileged, it must so assert it

I sweat, I bleed, I soar… 65


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

and state the reason therefore and why it must a. There was a legitimate claim of executive
be respected.” (Justice Carpio Morales in Senate privilege.
v. Ermita) For the claim to be properly invoked, there must be
a formal claim by the President stating the “precise
A formal and proper claim of executive privilege
and certain reason” for preserving confidentiality.
requires a specific designation and description The grounds relied upon by Executive Secretary
of the documents within its scope as well as Ermita are specific enough, since what is required is
precise and certain reasons for preserving their only that an allegation be made “whether the
confidentiality. Without this specificity, it is information demanded involves military or diplomatic
impossible for a court to analyze the claim short of secrets, closed-door Cabinet meetings, etc.” The
disclosure of the very thing sought to be protected. particular ground must only be specified, and the
Upon the other hand, Congress must not require following statement of grounds by Executive
Secretary Ermita satisfies the requirement: “The
the executive to state the reasons for the claim with
context in which executive privilege is being invoked
such particularity as to compel disclosure of the is that the information sought to be disclosed might
information which the privilege is meant to protect. impair our diplomatic as well as economic relations
(Senate v. Ermita) with the People’s Republic of China.”

12) Neri v. Senate Committee Comments on Neri v. Senate


Background: Atty Medina: The ruling expands the area of
This case is about the Senate investigation of information that is not accessible to the public.
anomalies concerning the NBN-ZTE project. During Executive privilege can now be invoked in
the hearings, former NEDA head Romulo Neri communications between his close advisors. (See
refused to answer certain questions involving his
the second element in the presidential
conversations with President Arroyo on the ground
they are covered by executive privilege. When the communications privilege)
Senate cited him in contempt and ordered his arrest, Bernas: The problem with the doctrine is, anytime
Neri filed a case against the Senate with the the President says “That’s covered”, that’s it.
Supreme Court. On March 25, 2008, the Supreme Nobody can ask anymore questions.
Court ruled in favor of Neri and upheld the claim of ASM: I think when the President says, “It’s
executive privilege. covered,” the Court can still make an inquiry under
Issues: the Grave Abuse Clause. This inquiry can be done
(1) . Are the communications sought to be elicited by
in an executive session.
the three questions covered by executive privilege?
(2) Did the Senate Committees commit grave abuse
of discretion in citing Neri in contempt and ordering G. Cabinet
his arrest? Extra-constitutional creation
Ruling: Composition
(1) The SC said that the communications sought to Prohibitions
be elicited by the three questions are covered by the Vice-President
presidential communications privilege, which is one
Ex-officio Capacity
type of executive privilege.
Using the elements of presidential communications Prohibited Employment
privilege, the SC is convinced that the communications Prohibited Compensation
elicited by the three (3) questions are covered by the
presidential communications privilege. 1. Extra-constitutional creation
First, the communications relate to a “quintessential Although the Constitution mentions the Cabinet a
and non-delegable power” of the President, i.e. the number of times, the Cabinet itself as an institution
power to enter into an executive agreement with other
countries. This authority of the President to enter into
is extra-constitutionally created. 259
executive agreements without the concurrence of the
Legislature has traditionally been recognized in 2. Composition
Philippine jurisprudence. It is essentially consist of the heads of departments
Second, the communications are “received” by a close who through usage have formed a body of
advisor of the President. Under the “operational presidential adviser who meet regularly with the
proximity” test, petitioner can be considered a close President.260
advisor, being a member of President Arroyo’s cabinet.
Third, there is no adequate showing of a compelling
need that would justify the limitation of the privilege and 3. Prohibitions (1987, 1996 Bar Question)
of the unavailability of the information elsewhere by (Applies to Members of Cabinet, their deputies or
an appropriate investigating authority. The record is assistants.)
bereft of any categorical explanation from respondent 1. Unless otherwise provided in the Constitution,
Committees to show a compelling or critical need for shall not hold any other employment during
the answers to the three (3) questions in the enactment
their tenure.
of a law.
(2) Yes. The Supreme Court said that the Senate
259
Committees committed grave abuse of discretion in Bernas Commentary, p 808 (2003 ed).; See art.7 secs. 3, 11 and
citing Neri in contempt. The following reason among 13.
others was given by the Supreme Court: 260
Bernas Commentary, p 808 (2003 ed).

I sweat, I bleed, I soar… 66


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

2. Shall not directly or indirectly practice any When an Undersecretary sits for a Secretary in a
other profession, participate in any business, function from which the Secretary may not receive
or be financially interested in any contract with, additional compensation, the prohibition on the
or in any franchise or special privilege granted Secretary also applies t the Undersecretary.263
by the government or any subdivision, agency,
or instrumentality thereof, including
government-owned or controlled corporations II. The President
or their subsidiaries during their tenure.
3. Strictly avoid conflict of interest in the conduct
of their office during their tenure. (Section 13) Who is he?
Qualifications
4. Vice-President Election
Note that the VP may be appointed to the Cabinet, Term of Office
without need of confirmation by the Commission on Oath of Office
Appointments; and the Secretary of Justice is an Privileges
ex officio member of the Judicial and Bar Council. Prohibitions/Inhibitions
Vacancy Situations
5. Ex-officio261 capacity (2002 Bar Question) Rules of Succession
Temporary Disability
The prohibition must not be construed as applying
Serious Illness
to posts occupied by the Executive officials without Removal from Office
additional compensation in an ex-officio capacity
as provided by law and as required by the primary A. Who is the President
functions of the said official’s office. The reason is
that the posts do not comprise “any other office”
within the contemplation of the constitutional The President is the Head of State and the Chief
prohibition, but properly an imposition of additional Executive.264 (He is the executive) He is the
duties and functions on said officials. repository of all executive power.265
To illustrate, the Secretary of Transportation and
Communications is the ex officio Chirman of the B. Qualifications
Board of Philippine Ports Authority. The ex officio Qualifications
position being actually and in legal contemplation Reason for Qualifications
part of the principal office, it follows that the official Qualifications are exclusive
concerned has no right to receive additional Natural Born
compensation for his services in said position. The Registered Voter
reason is that these services are already paid for Age
and covered by the compensation attached to the Registered Qualification
principal office. (National Amnesty Commission v.
COA, 2004) Section 2. No person may be
elected President unless he is a
6. Prohibited Employment natural-born citizen of the
Since the Chief Presidential Legal Counsel has the Philippines, a registered voter, able
duty of giving independent and impartial legal to read and write, at least forty
advice on the actions of the heads of various years of age on the day of the
executive departments and agencies and to review election, and a resident of the
investigations involving other presidential Philippines for at least ten years
appointees, he may not occupy a position in any of immediately preceding such
the offices whose performance he must review. It election.
would involve occupying incompatible positions.
Thus he cannot be Chairman at the same time of 1. Qualifications
the PCGG since the PCGG answers to the 1. Natural born citizen of the Phils.
President.262 2. Registered voter
3. Able to read write
7. Prohibited Compensation 4. At least 40 years of age o the day of the
election
5. A resident of the Philippines for at least 10
261 years immediately preceding the election.
An ex-oficio position is one which an official holds but is
germane to the nature of the original position. It is by virtue of the
original position that he holds the latter, therefore such is 263
constitutional. Bitonio v. COA, G.R. No. 147392, March 12, 2004.
262 264
Public Interest Group v Elma, G. R. No. 138965, June 30, Bernas Primer at 289 (2006 ed.)
265
2006. Sinco, Philippine Political Law, p.240 (1954 ed.)

I sweat, I bleed, I soar… 67


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

2. Reason for Qualifications such for more than four years shall be
Qualifications are prescribed for public office to qualified for election to the same office at
ensure the proper performance of powers and any time.
duties.266 No Vice-President shall serve for more than two
successive terms. Voluntary renunciation of the
3. Qualifications are exclusive office for any length of time shall not be
considered as an interruption in the continuity of
The above qualifications are exclusive and may not the service for the full term for which he was
be reduced or increased by Congress. The elected.
applicable rule of interpretation is expression unius Unless otherwise provided by law, the
est exclusio alterius.267 regular election for President and Vice-
President shall be held on the second
4. Natural Born Monday of May.
One who is a citizen of the Philippines from birth The returns of every election for President
without having to perform any act to acquire or and Vice-President, duly certified by the
perfect his Philippine citizenship. (Article IV, board of canvassers of each province or city,
Section 2) shall be transmitted to the Congress,
directed to the President of the Senate.
An illegitimate child of an American mother and a Upon receipt of the certificates of canvass,
Filipino father is a natural born Filipino citizen if the President of the Senate shall, not later
paternity is clearly proved. Hence such person than thirty days after the day of the election,
would be qualified to run for President. This was open all the certificates in the presence of
the case of Fernando Poe, Jr. (Tecson v. COMELEC) the Senate and the House of
Representatives in joint public session, and
5. Registered Voter the Congress, upon determination of the
Possession of the qualifications for suffrage as authenticity and due execution thereof in the
enumerated in Article V, Section 1. manner provided by law, canvass the votes.
The person having the highest number of
6. Age votes shall be proclaimed elected, but in
The age qualification must be possessed “on the case two or more shall have an equal and
day of the election for President” that is, on the day highest number of votes, one of them shall
set by law on which the votes are cast.268 forthwith be chosen by the vote of a majority
of all the Members of both Houses of the
7. Residence Qualification Congress, voting separately.
The object being to ensure close touch by the The Congress shall promulgate its rules for
President with the country of which he is to be the the canvassing of the certificates.
highest official and familiarity with its conditions The Supreme Court, sitting en banc, shall be
and problems, the better for him to discharge his the sole judge of all contests relating to the
duties effectively.269 election, returns, and qualifications of the
President or Vice-President, and may
C. Election promulgate its rules for the purpose.
Regular Election
Special Election 1. Regular Election
Congress as Canvassing Board The President (and Vice-President) shall be
Who will be Proclaimed elected by direct vote of the people. Unless
Presidential Electoral Tribunal otherwise provided by law, the regular election for
President (and Vice-President) shall be held on the
Section 4. The President and the Vice- second Monday of May.
President shall be elected by direct vote of
the people for a term of six years which shall 2. Special Election (Discussed under Section 10)
begin at noon on the thirtieth day of June
next following the day of the election and 3. Congress as Canvassing Board
shall end at noon of the same date six years The returns of every election for President and
thereafter. The President shall not be eligible Vice-President, duly certified by the board of
for any reelection. No person who has canvassers of each province or city, shall be
succeeded as President and has served as transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the
266 certificates of canvass, the President of the Senate
Cruz, Philippine Political Law, p. 174 (1995 ed).
267
Cruz, Philippine Political Law, p. 174 (1995 ed). shall, not later than thirty days after the day of the
268 election, open all the certificates in the presence of
Bernas Commentary, p 809 (2003 ed). the Senate and the House of Representatives in
269
Cruz, Philippine Political Law, p. 175 (1995 ed).

I sweat, I bleed, I soar… 68


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

joint public session, and the Congress, upon unfinished presidential canvass. Adjournment
determination of the authenticity and due terminates legislation but not the non-legislative
execution thereof in the manner provided by functions of Congress such as canvassing of
law, canvass the votes. The Congress shall votes. (Pimentel v. Joint Committee of
promulgate its rules for the canvassing of the Congress, 2004)
certificates.
4. Who will be proclaimed
Is the function of Congress merely The person having the highest number of votes
ministerial? shall be proclaimed elected, but in case two or
Bernas: The function of Congress is not merely more shall have an equal and highest number of
ministerial. It has authority to examine the votes, one of them shall forthwith be chosen by the
certificates of canvass for authenticity and due vote of a majority of all the Members of both
execution. For this purpose, Congress must pass Houses of the Congress, voting separately.
a law governing their canvassing of votes.270
Cruz: As the canvass is regarded merely as a 5. Presidential Electoral Tribunal
ministerial function, the Congress shall not have The Supreme Court, sitting en banc, shall be
the power to inquire into or decide questions of
the sole judge of all contests relating to the
alleged irregularities in the conduct of the
election contest. Normally, as long as the election, returns, and qualifications of the
election returns are duly certified and appear to President or Vice-President, and may
be authentic, the Congress shall have no duty promulgate its rules for the purpose.
but to canvass the same and to proclaim as
elected the person receiving the highest number Q: Can Susan Roces, widow of Fernando Poe.
of votes.271 Jr, intervene and/or substitute for him, assuming
Justice Carpio Morales: This duty has been arguendo that the protest could survive his
characterized as being ministerial and death?
executive.272 A: No. The fundamental rule applicable in a
presidential election protest is Rule 14 of the
Validity of Joint Congressional Committee. PET Rules. It provides that only the 2nd and 3rd
Congress may validly delegate the initial placer may contest the election. The Rule
determination of the authenticity and due effectively excludes the widow of a losing
execution of the certificates of canvass to a Joint candidate.273 (Fernando Poe v. Arroyo)
Congressional Committee so long as the
decisions and final report of the said Committee The validity, authenticity and correctness of the
shall be subject to the approval of the joint SOVs and COCs are under the Tribunal’s
session of Both Houses of Congress voting jurisdiction. The constitutional function as well as
separately. (Lopez v. Senate, 2004) the power and the duty to be the sole judge of all
contests relating to election, returns and
COMELEC. There is no constitutional or qualification of President and Vice-President is
statutory basis for COMELEC to undertake a expressly vested in the PET in Section 4 Article
separate and “unofficial” tabulation of result VII of the Constitution. Included therein is the
whether manually or electronically. If Comelec is duty to correct manifest errors in the SOVs and
proscribed from conducting an official canvass of COCs. (Legarda v. De Castro, 2005)
the votes cast for the President and Vice-
President, the Comelec is, with more reason, Q: After Fidel Ramos was declared President,
prohibited from making an “unofficial” canvass of defeated candidate Miriam Defensor Santiago
said votes. (Brilantes v. Comelec, 2004) filed an election protest with the SC.
Subsequently, while the case is pending, she ran
The proclamation of presidential and vice- for the office of Senator and, having been
presidential winners is a function of Congress declared elected, assumed office as Senator.
and not of Comelec (Macalintal v. COMELEC) What happens to her election protest?
A: Her protest is deemed abandoned with her
Congress may continue the canvass even after election and assumption of office as Senator.
the final adjournment of its session. The final (Defensor Santiago v. Ramos)
adjournment of Congress does not terminate an
D. Term of Office
270
Bernas Primer at 293 (2006 ed.)
271
Cruz, Philippine Political Law, p. 176 (1995 ed).
272
Separate Opinion of Justice Carpio Morales in Pimentel v. Joint 273
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.

I sweat, I bleed, I soar… 69


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

6 years. The President (and the Vice-President) the President and Vice-President
shall be elected by direct vote of the people for a shall be determined by law and
term of six years. shall not be decreased during their
tenure. No increase in said
Noon of June 30.Term hall begin at noon on the compensation shall take effect until
thirtieth day of June next following the day of the after the expiration of the term of
election and shall end at noon of the same date six the incumbent during which such
years thereafter. increase was approved. They shall
not receive during their tenure any
No re-election. The President shall not be eligible 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 prospect of reelection would make for a more The salaries of the President and Vice-President
independent President capable of making correct shall be determined by law and shall not be
even unpopular decisions.274 He is expected to decreased during their tenure.
devote his attention during his lone term to the The initial salary of the President is 300,00 per
proper discharge of his office instead of using its year. (Article XVIII Section 17)
perquisites to ensure his remaining therein for No increase during their term. No increase in
another term.275 said compensation shall take effect until after the
expiration of the term of the incumbent during
E. Oath of Office which such increase was approved.
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 G. Prohibitions/Inhibitions
fulfill my duties as President (or
Vice-President or Acting President)
of the Philippines, preserve and Section 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
defend its Constitution, execute its assistants shall not, unless otherwise provided in this
laws, do justice to every man, and Constitution, hold any other office or employment
consecrate myself to the service of during their tenure. They shall not, during said
the Nation. So help me God.” tenure, directly or indirectly, practice any other
(In case of affirmation, last profession, participate in any business, or be
sentence will be omitted.) financially interested in any contract with, or in any
franchise, or special privilege granted by the
Government or any subdivision, agency, or
Oath. The oath is not a source of substantive instrumentality thereof, including government-owned
power but is merely intended to deepen the sense or controlled corporations or their subsidiaries. They
of responsibility of the President and ensure a shall strictly avoid conflict of interest in the conduct of
more conscientious discharge of his office.276 their office.
The spouse and relatives by consanguinity or affinity
F. Privileges within the fourth civil degree of the President shall
not during his tenure be appointed as Members of
1. Official Residence
the Constitutional Commissions, or the Office of the
2. Salary Ombudsman, or a Secretaries, Undersecretaries,
3. Immunity from suit chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and
Section 6. The President shall have their subsidiaries.
an official residence. The salaries of
Prohibitions:
274 1. Shall not receive increase compensation
Bernas Commentary, p 812 (2003 ed).
275
during the term of the incumbent during which
Cruz, Philippine Political Law, p. 177 (1995 ed). such increase was approved. (sec 6)
276
Cruz, Philippine Political Law, p. 183 (1995 ed).

I sweat, I bleed, I soar… 70


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

2. Shall not receive any other emoluments from regular salaries. The second paragraph of Section
the government or any other source during 13 is intended as a guarantee against nepotism.279
their tenure. (sec 6)
3. Unless otherwise provided in the Constitution, H. Vacancy
shall not hold any other employment during
their tenure. Section 7. The President-elect and the Vice-
President-elect shall assume office at the beginning
4. Shall not directly or indirectly practice any of their terms.
other profession, participate in any business, If the President-elect fails to qualify, the Vice-
or be financially interested in any contract with, President-elect shall act as President until the
or in any franchise or special privilege granted President-elect shall have qualified.
by the government or any subdivision, agency, If a President shall not have been chosen, the Vice-
or instrumentality thereof, including President-elect shall act as President until a
President shall have been chosen and qualified.
government-owned or controlled corporations If at the beginning of the term of the President, the
or their subsidiaries during their tenure. President-elect shall have died or shall have
5. Strictly avoid conflict of interest in the conduct become permanently disabled, the Vice-President-
of their office during their tenure. elect shall become President.
6. May not appoint spouse or relatives by Where no President and Vice-President shall have
been chosen or shall have qualified, or where both
consanguinity or affinity within the fourth civil shall have died or become permanently disabled,
degree as Member of Constitutional the President of the Senate or, in case of his
Commissions or the Office of the Ombudsman, inability, the Speaker of the House of
or as Secretaries, Under Secretaries, Representatives shall act as President until a
chairmen or heads of bureaus or offices, President or a Vice-President shall have been
including government-owned or controlled chosen and qualified.
corporations and their subsidiaries. The Congress shall, by law, provide for the manner
Note: Nos. 1-6 above applies to the President. 1-5 in which one who is to act as President shall be
selected until a President or a Vice-President shall
applies to the Vice-President. 3-5 applies to have qualified, in case of death, permanent
Members of Cabinet, their deputies or assistants. disability, or inability of the officials mentioned in the
next preceding paragraph.
Prohibition against increase of compensation
during tenure. The prohibition against the change Section 8. In case of death, permanent disability,
of their salary either by reduction or increase removal from office, or resignation of the President,
during their term is meant to prevent the legislature the Vice-President shall become the President to
from “weakening the fortitude by appealing to their serve the unexpired term. In case of death,
avarice or corrupting their integrity by operating on permanent disability, removal from office, or
their necessities. 277 resignation of both the President and Vice-President,
the President of the Senate or, in case of his
inability, the Speaker of the House of
Emoluments. The emoluments which they may
Representatives, shall then act as President until the
not receive during their tenure from the President or Vice-President shall have been elected
government or any other source (that is, private) and qualified.
refers to any compensation received for services The Congress shall, by law, provide who shall serve
rendered or form possession of an office. This as President in case of death, permanent disability,
means that the President cannot accept other or resignation of the Acting President. He shall serve
employment elsewhere, whether in the government until the President or the Vice-President shall have
or in the private sector, and must confine himself to been elected and qualified, and be subject to the
same restrictions of powers and disqualifications as
the duties of his office.278
the Acting President.
Reason for Inhibitions under Section 13. The
inhibitions are in line with the principle that a public Section 10. The Congress shall, at ten o’clock in the
morning of the third day after the vacancy in the
office is a public trust and should not be abused for
offices of the President and Vice-President occurs,
personal advantage. Officers mention under convene in accordance with its rules without need of
Section 13 (except the VP who may be appointed a call and within seven days enact a law calling for a
to the Cabinet) are inhibited from holding any other special election to elect a President and a Vice-
office or employment in the government during President to be held not earlier than forty-five days
their tenure. This will discontinue the lucrative nor later than sixty days from the time of such call.
practice of Cabinet members occupying seats in The bill calling such special election shall be
the boards of directors of affluent corporations deemed certified under paragraph 2, Section 26,
Article VI of this Constitution and shall become law
owned or controlled by the government from which
upon its approval on third reading by the Congress.
they derived substantial income in addition to their Appropriations for the special election shall be
277
Cruz, Philippine Political Law, p. 183 (1995 ed).
278 279
Cruz, Philippine Political Law, p. 183 (1995 ed). Cruz, Philippine Political Law, p. 185 (1995 ed).

I sweat, I bleed, I soar… 71


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

charged against any current appropriations and shall 3. When the President-elect Vice-President elect
be exempt from the requirements of paragraph 4, dies or is permanently becomes President
Section 25, Article VI of this Constitution. The incapacitated before the
convening of the Congress cannot be suspended beginning of his term
nor the special election postponed. No special 4. When both the President The Senate President or
election shall be called if the vacancy occurs within and Vice-President have not the Speaker- in that order-
eighteen months before the date of the next yet been chosen or have acts as President until a
presidential election. failed to qualify
President or Vice-
5. When both shall have died President qualifies.
Vacancy Situations:
or become permanently
1. Vacancy that occurs at the start of the term incapacitated at the start of
(Sec 7) the term.
2. Vacancy that occurs in mid-term (Sec 8) 6. When the Senate Congress will decide by
3. Vacancy in both the presidency and vice- President and the Speaker of law who will act as
presidency. (Section 10) the House shall have died or President until a President
shall have become
or Vice-President shall
Vacancy Situations under Section 7: permanently incapacitated, or
are unable to assume office. have been elected and
(The vacancy situations here occur after the office qualified.
has been initially filled.)
1. When a President has been chosen but fails Section 8
to qualify at the beginning of his term Reason for Vacancy Succession
2. When no President has yet been chosen at 1. When the incumbent The vacancy created is
the time he is supposed to assume office. President dies or is thus permanent. The Vice-
3. When the President-elect dies or is permanently disabled, is President becomes
permanently incapacitated before the removed or resigns.
President.
beginning of his term 2. When both the President The Senate President or
4. When both the President and Vice-President and the Vice-President die, or the Speaker-in that order-
have not yet been chosen or have failed to are permanently disabled, are shall act as President until
qualify removed, or resign.
a President of Vice-
5. When both shall have died or become
President shall have been
permanently incapacitated at the start of the
qualified.
term.
3. When the Acting President Congress will determine
6. When the Senate President and the dies, or is permanently by law who will act as
Speaker of the House shall have died or incapacitated, is removed or President until a new
shall have become permanently resigns.
President or Vice-
incapacitated, or are unable to assume President shall have
office. qualified.

Vacancy Situation under Section 8 Resignation. In Estrada v. Macapagal-Arroyo, the


(Vacancy that occurs in mid-term) SC through Justice Puno (main opinion) declared
1. When the incumbent President dies or is that the resignation of President Estrada could not
permanently disabled, is removed or be doubted as confirmed by his leaving
resigns. Malacanang. The SC declared that the elements of
2. When both the President and the Vice- a valid resignation are (1) intent to resign; and (2)
President die, or are permanently disabled, act of relinquishment. Both were present when
are removed, or resign. President Estrada left the Palace. Justice Puno
3. When the Acting President dies, or is anchored his opinion mainly on the letter of
permanently incapacitated, is removed or Estrada and on the diary of ES Edgardo Angara.
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 He views Estrada’s disability in (a) objective and
term
(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

I sweat, I bleed, I soar… 72


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

community, [Estrada] had absolutely no support No special elections. No special election shall be
from and control of the bureaucracy from within called if the vacancy occurs within eighteen months
and from without. In fact he had no more before the date of the next presidential election.
functioning government to speak of. It is in this
context that [Estrada] was deemed absolutely J. Temporary Disability
unable to exercise or discharge the powers, duties
and prerogatives of the Presidency. Section 11. Whenever the President transmits to the
Subjective Approach. [Estrada’s] contemporaneous President of the Senate and the Speaker of the
acts and statements during and after the critical House of Representatives his written declaration
episode are eloquent proofs of his implied-but that he is unable to discharge the powers and duties
nevertheless unequivocal-acknowledgment of the of his office, and until he transmits to them a written
permanence of his disability. 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
Bernas: In sum, 3 justices (Puno, Vitug and Pardo) Cabinet transmit to the President of the Senate and
accepted some form of resignation; 2 jsutices to the Speaker of the House of Representatives their
(Mendoza and Bellosillo) saw permanent disability; written declaration that the President is unable to
3 justices (Kapuna, Yners Santiago and Sandoval- discharge the powers and duties of his office, the
Gutierrez) accepted the presidency of Arroyo as an Vice-President shall immediately assume the powers
irreversible fact. 5 justices (Quisumbing, Melo, and duties of the office as Acting President.
Thereafter, when the President transmits to the
Buena, De Leon and gonzaga-Reyes) signed the President of the Senate and to the Speaker of the
decision without expressing any opinion. Davide House of Representatives his written declaration
and Panganiban abstained. In the light of all this, it that no inability exists, he shall reassume the powers
is not clear what doctrine was established by and duties of his office. Meanwhile, should a majority
the decision.280 of all the Members of the Cabinet transmit within five
days to the President of the Senate and to the
When the Senate President or Speaker becomes Speaker of the House of Representatives their
Acting President, he does not lose the Senate written declaration that the President is unable to
discharge the powers and duties of his office, the
presidency or the speakership.281 Congress shall decide the issue. For that purpose,
the Congress shall convene, if it is not in session,
Section 10 within forty-eight hours, in accordance with its rules
Call not needed. The Congress shall, at ten and without need of call.
o’clock in the morning of the third day after the If the Congress, within ten days after receipt of the
vacancy in the offices of the President and Vice- last written declaration, or, if not in session, within
President occurs, convene in accordance with its twelve days after it is required to assemble,
rules without need of a call and within seven days determines by a two-thirds vote of both Houses,
voting separately, that the President is unable to
enact a law calling for a special election to elect a discharge the powers and duties of his office, the
President and a Vice-President to be held not Vice- President shall act as President; otherwise, the
earlier than forty-five days nor later than sixty days President shall continue exercising the powers and
from the time of such call. duties of his office.
Bill deemed certified. The bill calling such special
election shall be deemed certified under paragraph K. Serious Illness
2, Section 26, Article V1 of this Constitution and
shall become law upon its approval on third Section 12. In case of serious illness of the
reading by the Congress. President, the public shall be informed of the state of
his health. The members of the Cabinet in charge of
Appropriations. Appropriations for the special national security and foreign relations and the Chief
election shall be charged against any current of Staff of the Armed Forces of the Philippines, shall
appropriations and shall be exempt from the not be denied access to the President during such
requirements of paragraph 4, Section 25, Article V1 illness.
of this Constitution.
Section 12 envisions not just illness which
No suspension or postponement. The convening incapacitates but also any serious illness which can
of the Congress cannot be suspended nor the be a matter of national concern.282
special election postponed.
Reason for informing the public. To guarantee
the people’s right to know about the state of
President’s health, contrary to secretive practice in
280 totalitarian regimes.283
Bernas Commentary, p 827 (2003 ed).
281
Bernas Primer at 298 (2006 ed.)
282
Bernas Primer at 300 (2006 ed.)

I sweat, I bleed, I soar… 73


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

Who has the duty to inform? The section does


not specify the officer on whom the duty devolves. Same as the President. See Section 5.
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 compensation
make the important decisions in those areas of
during the term of the incumbent during which
government.284
such increase was approved. (sec 6)
2. Shall not receive any other emoluments from
L. Removal from Office
the government or any other source during
their tenure. (sec 6)
Ways of removal from office: 3. Unless otherwise provided in the Constitution,
1. By Impeachment shall not hold any other employment during
2. By People Power their tenure.
3. By Killing the President (e.g. Assassination)285 4. Shall not directly or indirectly practice any
(Number 2 is extra constitutional and Number 3 is illegal. –asm). other profession, participate in any business,
(But for purposes of examinations, answer number 1 only) or be financially interested in any contract with,
(Impeachment will be discussed under Article XI) or in any franchise or special privilege granted
by the government or any subdivision, agency,
III. The Vice- President or instrumentality thereof, including
government-owned or controlled corporations
or their subsidiaries during their tenure.
Who is the Vice-President
5. Strictly avoid conflict of interest in the conduct
Qualifications, Election, Term of Office
of their office during their tenure. (Section 13)
Oath of Office
Prohibitions/Inhibitions
E. Vacancy in the Vice-Presidency
Vacancy
Removal from Office
Appointment to Cabinet 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. Who is the Vice-President a Vice-President from among the Members of the
Senate and the House of Representatives who shall
His function is to be on hand to act as President assume office upon confirmation by a majority vote
when needed or to succeed to the presidency in of all the Members of both Houses of the Congress,
case of a permanent vacancy in the office. The voting separately.
President may also appoint him as a Member of
the Cabinet. Such appointment does not need the F. Removal from Office
consent of the Commission on Appointments.286
He may be removed from office in the same
B. Qualifications, Election, Term of Office manner as the President. (Section 3)

Section 3. There shall be a Vice-President F. Appointment to Cabinet


who shall have the same qualifications and
term of office and be elected with and in the The Vice-President may be appointed as a
same manner as the President. xxx Member of the Cabinet. Such appointment requires
no confirmation. (Section 3)
No Vice-President shall serve for more than two
successive terms. Voluntary renunciation of the Justice Cruz submits that the Vice-President may
office for any length of time shall not be considered not receive additional compensation as member of
as an interruption in the continuity of the service for Cabinet because of the absolute prohibition in
the full term for which he was elected. (Section 4) Section 3 of Article VII.287

C. Oath of Office
IV. POWERS OF THE PRESIDENT
283
Bernas Commentary, p 832 (2003 ed).
284
Bernas Commentary, p 832 (2003 ed). Constitutional Powers of the President
285
Number 2 is extra constitutional and Number 3 is illegal. -asm 1. Executive Power
286 2. Power of Appointment
Bernas Primer at 291 (2006 ed.)
3. Power of Control
287
Cruz, Philippine Political Law, p. 183 (1995 ed).

I sweat, I bleed, I soar… 74


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

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


5. Pardoning Power given office.288
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 (art 6, latter is the written evidence of the appointment.
sec 15)
b. Power to approve or veto bills (art 6 sec B. Nature of Power of Appointment
27) 1. Executive in Nature
c. To consent to deputation of government 2. Non-delegability
personnel by the Commission on 3. Necessity of Discretion
Elections (art 19-C sec 2(4))
d. To discipline such deputies (art 19-C sec 1. Executive in Nature
2(8)) Appointing power is executive in nature.
e. Emergency powers by delegation from (Government v. Springer) Indeed, the filling up of
Congress (art 6 sec 23(2)) an office created by law is the implementation or
f. Tariff Powers by delegation from execution of law.289
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.290
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 PTA on the ground that the designation of petitioner
the consent of the Commission on Appointments, was invalid since it is not made by the President as
appoint the heads of the executive departments, provided for in PD 564. Petitioner claimed that his
ambassadors, other public ministers and consuls, or removal was without just cause.
officers of the armed forces from the rank of colonel Held: The appointment or designation of petitioner by
or naval captain, and other officers whose the Minister of Tourism is invalid. It involves the
appointments are vested in him in this Constitution. exercise of discretion, which cannot be delegated.
He shall also appoint all other officers of the Even if it be assumed that the power could be
Government whose appointments are not otherwise exercised by the Minister of Tourism, it could be
provided for by law, and those whom he may be recalled by the President, for the designation was
authorized by law to appoint. The Congress may, by provisional.291 (Binamira v. Garrucho)
law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the 3. Necessity of Discretion
heads of departments, agencies, commissions, or
boards.
Discretion is an indispensable part in the exercise
The President shall have the power to make of power of appointment. Congress may not,
appointments during the recess of the Congress, therefore, enact a statute which would deprive the
whether voluntary or compulsory, but such President of the full use of his discretion in the
appointments shall be effective only until disapproval nomination and appointment of persons to any
by the Commission on Appointments or until the next public office. Thus it has been held that a statute
adjournment of the Congress.
288
Cruz, Philippine Political Law, p. 189 (1995 ed).
A. Definition of Appointment 289
Bernas Commentary, p 839 (2003 ed).
290
Definition of Appointment. Appointment is the Bernas Primer at 305 (2006 ed.)
291
selection, by the authority vested with the power, of Jacinto Jimenez, Political Law Compendium, p.313 (2006 ed.)

I sweat, I bleed, I soar… 75


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

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. 297
Chief Executive.292 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.293 without such eligibility, revocable at will and without
the necessity of just cause or a valid
Appointment is essentially a discretionary power investigation298; 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.294 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.295 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.296
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
292
the Commission on Appointments;
Sinco, Philippine Political Law, p 272 (1954ed). 2. Adjournment by Congress without the
293
Flores v. Drilon, 223 SCRA 568. CA acting on the appointment.
294
Antonio B. Nachura, Outline/Reviewer in Political Law 274
(2006 ed.) 297
295
Bernas Primer at 305 (2006 ed.) Cruz, Philippine Political Law, p. 190 (1995 ed).
296 298
Bernas Commentary, p 840 (2003 ed). Cruz, Philippine Political Law, p. 190 (1995 ed).

I sweat, I bleed, I soar… 76


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

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 departments
must be a “constructive recess” between the • Ambassadors, other public ministers
sessions and thus appointments not acted and consuls
upon during the special session lapse before • Officers of the armed forces from
the start of the regular session.299 rank of colonel or naval captain
• Article VIII, Section 9 provides that
Difference between an ad interim appointment the President appoints member of the
and an appointment in an acting capacity. SC and judges of lower courts
1. The former refers only to positions which need
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 2. Those whom he may be authorized by law
necessarily appoint the alter ego of her choice as (Section 16, 2nd sentence)
Acting Secretary before the permanent appointee 3. Any other officers of the government whose
of her choice could assume office.
appointments are not otherwise provided by
Congress, through law, cannot impose on the
law (Constitution or statutes). (Section 16, 2nd
President the obligation to appoint automatically
sentence)
the undersecretary as her temporary alter ego. “An
alter ego, whether temporary or permanent, holds
Significance of enumeration in Section 16, 1st
a position of great trust and confidence. Congress,
sentence. The enumeration means that Congress
in the guise of prescribing qualifications to an
may not give to any other officer the power to
office, cannot impose on the President who her
appoint the above enumerated officers.300
alter ego should be.”Acting appointments are a
way of temporarily filling important offices, but if
299 300
Bernas Primer at 306 (2006 ed.)

I sweat, I bleed, I soar… 77


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

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 and withdrawn. (Lacson v. Romero)
consuls Appointment to a public office cannot be forced
3. Officers of the armed forces from rank of upon any citizen except for purposes of defense of
colonel or naval captain the State under Article II Section 4.
4. Those other officers whose appointments
H. Appointment of Officers Lower in Rank
are vested in him in the Constitution.
(Sarmiento v. Mison) (Note: Although the
power to appoint Justices, judges, Section 16 (3rd sentence of first paragraph)
The Congress may, by law, vest the appointment of
Ombudsman and his deputies is vested in
other officers lower in rank in the President alone,
the President, such appointments do not in the courts, or in the heads of departments,
need confirmation by the Commission on agencies, commissions, or boards.
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 military301 To some or boards. 303
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.302 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 Endriga304
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
Chairman of CHR. The appointment of the 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
appointment to be passed upon by the
next presidential elections and up to the end of his
Commission on Appointments. (Bautista v. term, a President or Acting President shall not make
Salonga) appointments, except temporary appointments to
executive positions when continued vacancies
2. Exclusive list therein will prejudice public service or endanger
The Congress cannot by law require the public safety.
confirmation of appointments of government
officials other than those enumerated in the first Special Limitations
sentence of Section 16 of Article VII. (Calderon v.
Carale)
303
Bernas Commentary, p 847 (2003 ed).; The earlier view of Fr.
Bernas confirmed by Sarmiento v. Mison, was that the retention of
301
Bernas Commentary, p 844 (2003 ed). the phrase “President alone” was an oversight.
302 304
II RECORD 394-395. G.R. No. 139554, July 21, 2006.

I sweat, I bleed, I soar… 78


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

1. (Anti-Nepotism Provision) The President ban. (In Re Appointment of Mateo


may not appoint his spouse and relatives by Valenzuela, 1998)
consanguinity or affinity within the fourth civil
degree as Members of the Constitutional Provision applies only to presidential
Commission, as Ombudsman, or as appointments. The provision applies only to
Secretaries, Undersecretaries, chairmen or presidential appointments. There is no law
heads of Bureaus or offices, including that prohibits local executive officials from
government owned-or-controlled corporations. making appointments during the last days of
(Section 13) their tenure. (De Rama v. CA)
2. Appointments extended by an acting President Other Limitations:
shall remain effective unless revoked by the 1. The presidential power of appointment may
elected President within 90 days form his also be limited by Congress through its power
assumption of office. (Section 14) to prescribe qualifications for public office.
3. (Midnight Appointments)Two months 2. The judiciary may annul an appointment made
immediately before the next presidential by the President if the appointee is not
elections and up to the end of his term, a qualified or has not been validly confirmed.306
President or acting President shall not make
appointments except for temporary J. Power of Removal
appointments to executive positions when
continued vacancies therein will prejudice
The President possesses the power of removal by
public service or endanger public safety.
implication from other powers expressly vested in
(Section 15)
him.
4. The President shall have the power to make 1. It is implied from his power to appoint
appointments during the recess of the 2. Being executive in nature, it is implied
Congress, whether voluntary or compulsory, from the constitutional provision vesting
but such appointments shall be effective only the executive power in the President.
until disapproval by the CA or until the next 3. It may be implied from his function to take
adjournment of Congress. (Section 16 par. 2) care that laws be properly executed; for
without it, his orders for law enforcement
Rule [Section 15] applies in the might not be effectively carried out.
appointments in the Judiciary. Two 4. The power may be implied fro the
months immediately before the next
President’s control over the administrative
presidential elections and up to the end of
departments, bureaus, and offices of the
his term, a President or Acting President
government. Without the power to
shall not make appointments, except
remove, it would not be always possible
temporary appointments to executive
for the President to exercise his power of
positions when continued vacancies therein
control.307
will prejudice public service or endanger
public safety. Since the exception applies
As a general rule, the power of removal may be
only to executive positions, the prohibition
implied from the power of appointment. 308 However,
covers appointments to the judiciary.305
the President cannot remove officials appointed by
During this period [2 months immediately
him where the Constitution prescribes certain
before the next presidential elections…], the
methods for separation of such officers from public
President is neither required to make
service, e.g., Chairmen and Commissioners of
appointments to the courts nor allowed to do
Constitutional Commissions who can be removed
so.
only by impeachment, or judges who are subject to
Section 4(1) and 9 of Article VIII simply
the disciplinary authority of the Supreme Court. In
mean that the President is required by law to
the cases where the power of removal is lodged in
fill up vacancies in the courts within the
the President, the same may be exercised only for
same time frames provided therein unless
cause as may be provided by law, and in
prohibited by Section 15 of Article VII.
While the filing up of vacancies in the
judiciary is undoubtedly in the public
interest, there is no showing in this case of 306
Cruz, Philippine Political Law, p. 195 (1995 ed).
any compelling reason to justify the making 307
Sinco, Philippine Political Law, p 275 (1954ed).; But See Ang-
of the appointments during the period of 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
305 power to appoint.” Bernas Primer at 313 (2006 ed).
In re: Appointment of Valenzuela, AM 98-0501 SC, November 9,
308
1998. Cruz, Philippine Political Law, p. 196 (1995 ed).

I sweat, I bleed, I soar… 79


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

accordance with the prescribed administrative may take such action or steps as prescribed by law
procedure. to make them perform these duties.314

Members of the career service. Members of the Bernas Primer: Power of Supervision is the power
career service of the Civil Service who are of a superior officer to “ensure that the laws are
appointed by the President may be directly faithfully executed” by inferiors. The power of
disciplined by him. (Villaluz v. Zaldivar) provided supervision does not include the power of control;
that the same is for cause and in accordance with but the power of control necessarily includes the
the procedure prescribed by law. power of supervision.315

Members of the Cabinet. Members of the Cabinet Control Supervision


and such officers whose continuity in office An officer in control Supervision does not
depends upon the President may be replaced at lays down the rules in cover the authority to
any time. (Legally speaking, their separation is the doing of an act. lay down the rules.
effected not by removal but by expiration of Supervisor or
term.309) (See Alajar v. CA) superintendent merely
sees to it that the rules
VI. Power of Control are followed.
If rules are not If the rules are not
Control followed, he may, in observed, he may order
Control v. Supervision his discretion, order the work done or re-
The President and Power of Control the act undone, re- done but only to
Alter ego Principle; Doctrine of Qualified Political done by his conform to the
Agency subordinate or he prescribed rules. He
Supervision over LGUs may decide to do it may not prescribe his
The Take-Care Clause himself. own manner for the
doing of the act. He has
Section 17. The President shall have control of all no judgment on this
the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
matter except to see to
it that the rules are
followed. (Drilon v. Lim)
A. Control
C. The President and Power of Control
Control is the power of an officer to alter or modify Power of Control of the President
or nullify or set aside what a subordinate officer Scope
had done in the performance of his duties and to Section 17 is self-executing
substitute the judgment of the former for that of the Not a Source of Disciplinary Powers
latter.310
1. Power of Control of the President
It includes the authority to order the doing of an act [Power of Control] has been given to the President
by a subordinate or to undo such act or to assume over all executive officers from Cabinet members to
a power directly vested in him by law. 311 The power the lowliest clerk. This is an element of the
of control necessarily includes the power of presidential system where the President is “the
supervision.312 Executive of the government.”316
B. Control v. Supervision The power of control vested in the President by the
Constitution makes for a strongly centralized
Control is a stronger power than mere administrative system. It reinforces further his
supervision.313 position as the executive of the government,
enabling him to comply more effectively with his
Supervision. Supervision means overseeing or constitutional duty to enforce laws. The power to
the power or authority of an officer to see that prepare the budget of the government strengthens
subordinate officer performs their duties. If the the President’s position as administrative head.317
latter fail or neglect to fulfill them, then the former
2. Scope
309
Cruz, Philippine Political Law, p. 197 (1995 ed).
310
Mondano v. Silvosa 314
Mondano v. Silvosa
311 315
Cruz, Philippine Political Law, p. 198 (1995 ed). Bernas Primer at 313 (2006 ed.)
312 316
Bernas Primer at 313 (2006 ed.) Bernas Primer at 310 (2006 ed.)
313 317
Cruz, Philippine Political Law, p. 198 (1995 ed). Sinco, Philippine Political Law, p 243 (1954ed).

I sweat, I bleed, I soar… 80


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

a. The President shall have control of all the The President derives power of control directly
executive departments, bureaus, and offices. from the Constitution and not from any
(Section 17) implementing legislation. Such a law is in fact
unnecessary and will even be invalid if it limits the
b. The President has control over officers of exercise of his power or withdraws it altogether
GOCCs. (NAMARCO v. Arca) (Bernas: It is from the President.322
submitted that such power over government-
owned corporation comes not from the 4. Power of Control is not the source of the
Constitution but from statute. Hence, it may also Executive’s disciplinary power
be taken away by statute.) The power of control is not the source of the
Executive’s disciplinary power over the person of
c. Control over what? The power of control is his subordinates. Rather, his disciplinary power
exercisable by the President over the acts of his flows from his power to appoint. (Ang-Angco v.
subordinates and not necessarily over the Castillo)323
subordinate himself. (Ang-angco v. Castillo) It
can be said that the while the Executive has D. Alter Ego Principle; Doctrine of Qualified Political
control over the “judgment” or “discretion” of his Agency
subordinates, it is the legislature which has Doctrine
control over their “person.”318 When Doctrine not Applicable
Reason for the Doctrine
d. Theoretically, the President has full control of Power of Control exercised by Department Heads
all the members of the Cabinet. He may appoint Power of Control exercised by ES
them as he sees fit, shuffle them at pleasure, Abakada Case
and replace them in his discretion without any
legal inhibition whatever.319 1. Doctrine
The doctrine recognizes the establishment of a
e. The President may exercise powers conferred single executive. The doctrine postulates that, “All
by law upon Cabinet members or other executive and administrative organizations are
subordinate executive officers. (City of Iligan v. adjuncts of the Executive Department, the heads of
Director of Lands) Even where the law provides the various executive departments are assistants
that the decision of the Director of Lands on and agents of the Chief Executive, and, (except in
questions of fact shall be conclusive when cases where the Chief Executive is required by the
affirmed by the Sec of DENR, the same may, on Constitution or law to act in person or the
appeal to the President, be reviewed and exigencies of the situation demand that he act
reversed by the Executive Secretary. (Lacson- personally,) the multifarious executive and
Magallanes v. Pano) administrative functions of the Chief Executive are
performed by and through the executive
f. It has been held, moreover, that the express departments, and the acts of the secretaries of
grant of the power of control to the President such departments, performed and promulgated
justifies an executive action to carry out the in the regular course of business, are, unless
reorganization of an executive office under a disapproved or reprobated by the Chief
broad authority of law.320 A reorganization can Executive presumptively, the acts of the Chief
involve the reduction of personnel, consolidation Executive” (Villena v. Sec. of Interior)
of offices, or even abolition of positions by
reason of economy or redundancy of functions. Put simply, when a department secretary makes a
While the power to abolish an office is generally decision in the course of performing his or her
lodged with the legislature, the authority of the official duties, the decision, whether honorable or
President to reorganize the executive branch, disgraceful, is presumptively the decision of the
which may include such abolition, is permissible President, unless he quickly and clearly disowns
under present laws.321 it.324
3. Section 17 is a self-executing provision 2. When Doctrine not Applicable
Qualified political agency does NOT apply if the
President is required to act in person by law or by
318
Bernas Primer at 313 (2006 ed.)
319 322
Cruz, Philippine Political Law, p. 199 (1995 ed). Cruz, Philippine Political Law, p. 199 (1995 ed).
320 323
Anak Mindanao v. Executive Sec, G.R. No. 166052 , August 29, Bernas Primer at 313 (2006 ed.)
2007; Tondo Medical Center Employees v. CA. G.R. No. 167324, 324
Fr. Bernas in his Inquirer column, “A Golden Opportunity for
July 17, 2007; GMA”.
321
Malaria Employees v. Executive Secretary, G.R. No. http://opinion.inquirer.net/inquireropinion/columns/view_article.php?
160093, July 31, 2007. article_id=107245

I sweat, I bleed, I soar… 81


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

the Constitution. Example: The power to grant E. Power of Supervision over LGUs
pardons must be exercised personally by the
President. The power of the President over local governments
is only one of general supervision.329 (See Article X,
3. Reason for the Doctrine Sections 4 and 16)
Since the executive is a busy man, he is not
expected to exercise the totality of his power of The President can only interfere in the affairs and
control all the time. He is not expected to exercise activities of a local government unit if he finds that
all his powers in person. He is expected to the latter had acted contrary to law. (Judge Dadole
delegate some of them to men of his confidence, v. COA)
particularly to members of his Cabinet. Thus, out of
this practical necessity has risen what has come A law (RA 7160 Sec 187) which authorizes the
to be referred to as “doctrine of qualified political Secretary of Justice to review the constitutionality
agency.”325 of legality of a tax ordinance—and if warranted, to
revoke it on either or both grounds—is valid, and
4. Power of Control exercised by Department does not confer the power of control over local
Heads in the President’s Behalf government units in the Secretary of Justice, as
The President’s power of control means his power even if the latter can set aside a tax ordinance, he
to reverse the judgment of an inferior officer. It cannot substitute his own judgment for that of the
may also be exercised in his behalf by Department local government unit. (Drilon v. Lim)
Heads. Thus the Secretary of Justice may reverse
the judgment of a prosecutor and direct him to F. Faithful Execution Clause; Take Care Clause
withdraw an information already filed. Such action
is not directly reviewable by a court. One who The power to take care that the laws be faithfully
disagrees, however, may should appeal to the executed makes the President a dominant figure in
Office of the President in order to exhaust the administration of the government.330
administrative remedies prior to bring it to court.326
The President shall ensure that the laws be
5. Power of Control exercised by the ES faithfully executed. (Section 17 2nd sentence) The
The Executive Secretary when acting “by authority law he is supposed to enforce includes the
of the President” may reverse the decision of Constitution, statutes, judicial decisions,
another department secretary. (Lacson-Magallanes administrative rules and regulations and municipal
v. Pano) 327 ordinances, as well as treaties entered into by
government.331
6. Abakada Case
Petitioners argue that the EVAT law is This power of the President is not limited to the
unconstitutional, as it constitutes abandonment by enforcement of acts of Congress according to their
Congress of its exclusive authority to fix the rate of express terms. The President’s power includes “the
taxes and nullififed the President’s power of control rights and obligations growing out of the
by mandating the fixing of the tax rate by the Constitution itself, international relations, and all
President upon the recommendation of the the protection implied by the nature of the
Secretary of Finance. The SC ruled that the government under the Constitution.332
Secretary of Finance can act as agent of the
Legislative Department to determine and declare The reverse side of the power to execute the law is
the event upon which its expressed will is to take the duty to carry it out. The President cannot refuse
effect. His personality in such instance is in reality to carry out a law for the simple reason that in his
but a projection of that of Congress. Thus, being judgment it will not be beneficial to the people. 333
the agent of Congress and not of the President, the As the Supreme Court pointed out, “after all we still
President cannot alter or modify or nullify, or set live under a rule of law.”
aside the findings of the Secretary of Finance and
to substitute the judgment of the former to the It has been suggested that the President is not
latter.328 (Abakada Guro v. ES, 2005) under obligation to enforce a law which in his belief
is unconstitutional because it would create no

325 329
Bernas Commentary, p 857 (2003 ed). Bernas Primer at 313 (2006 ed.)
326
Orosa v. Roa, GR 14047, July 14, 2006; DENR v. DENR 330
Cruz, Philippine Political Law, p. 203 (1995 ed).
Employees, G.R. No. 149724. August 19, 2003 331
327 Cruz, Philippine Political Law, p. 203 (1995 ed).
See the case of Neri v. Senate Committee on the authority of ES
332
to invoke Executive Immunity. -asm In Re Neagle, 135 US 1 (1890). Bernas Commentary, p 863
328 (2003 ed).
San Beda College of Law, 2008 Centralized Bar Operations,
333
Political Law Reviewer, p. 29. Bernas Commentary, p 863 (2003 ed)

I sweat, I bleed, I soar… 82


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

rights and confer no duties being totally null and judicially charged within three days, otherwise he
void. The better view is that it is not for him to shall be released.
determine the validity of a law since this is a
question exclusively addressed to the judiciary. A. The Military Power (1987 Bar Question)
Hence, until and unless a law is declared
unconstitutional, the President has a duty to Section 18 bolsters the principle announced in
execute it regardless of his doubts on its validity. A Article II, Section 3 that “civilian authority is at all
contrary opinion would allow him not only to negate times, supreme over the military.” By making the
the will of legislature but also to encroach upon the President the commander-in-chief of all the armed
prerogatives of the judiciary.334 forces, the Constitution lessens the danger of a
military take-over of the government in violation of
its republican nature.335
VII. Military Power/Emergency Powers
The Military Power Section 18 grants the President, as Commander-
Limitations on Military Power in-Chief, a sequence of graduated powers. From
Commander-in-Chief Clause/ Calling Out Power the most to the least benign, these are: the calling
Suspension of the Privilege out power, the power to suspend the privilege of
Martial Law the writ of habeas corpus, and the power to declare
martial law. (Sanlakas v. Executive Secretary)
Section 18. The President shall be the Commander-
in-Chief of all armed forces of the Philippines and The power of the sword makes the President the
whenever it becomes necessary, he may call out most important figure in the country in times of war
such armed forces to prevent or suppress lawless or other similar emergency.336 It is because the
violence, invasion or rebellion. In case of invasion or sword must be wielded with courage and resolution
rebellion, when the public safety requires it, he may, that the President is given vast powers in the
for a period not exceeding sixty days, suspend the
making and carrying out of military decisions.337
privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of The military power enables the President to:
martial law or the suspension of the privilege of the 1. Command all the armed forces of the
writ of habeas corpus, the President shall submit a Philippines;
report in person or in writing to the Congress. The 2. Suspend the privilege of the writ of
Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special habeas corpus
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, B. Limitations on Military Power338 (1987, 2000 Bar
the 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 1. He may call out the armed forces to prevent or
rebellion 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
2. The grounds for the suspension of the privilege of
without need of a call. the writ of habeas corpus and the proclamation of
The Supreme Court may review, in an appropriate martial law are now limited only to invasion or
proceeding filed by any citizen, the sufficiency of the rebellion.
factual basis of the proclamation of martial law or the 3. The duration of such suspension or proclamation
suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision
shall not exceed sixty days, following which it shall
thereon within thirty days from its filing. be automatically lifted.
A state of martial law does not suspend the 4. Within forty-eight hours after such suspension or
operation of the Constitution, nor supplant the proclamation, the President shall personally or in
functioning of the civil courts or legislative writing report his action to the Congress. If not in
assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over
session, Congress must convene within 24 hours.
where civil courts are able to function, nor 5. The Congress may then, by majority votes of all its
automatically suspend the privilege of the writ. members voting jointly, revoke his action. The
The suspension of the privilege of the writ shall revocation may not set aside by the President.
apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with
invasion. 335
Cruz, Philippine Political Law, p. 204 (1995 ed).
During the suspension of the privilege of the writ, 336
any person thus arrested or detained shall be Cruz, Philippine Political Law, p. 205 (1995 ed).
337
Cruz, Philippine Political Law, p. 205 (1995 ed).
334 338
Cruz, Philippine Political Law, p. 203 (1995 ed). Cruz, Philippine Political Law, p. 213 (1995 ed).

I sweat, I bleed, I soar… 83


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

6. By the same vote and in the same manner, the has the power to conduct legislative hearings,
Congress may, upon initiative of the President, Congress may make use of remedies under the
extend his suspension or proclamation for a period law to compel attendance. Any military official
to be determined by the Congress if the invasion or whom Congress summons to testify before it may
rebellion shall continue and the public safety be compelled to do so by the President. If the
requires extension. President is not so inclined, the President may be
7. The action of the President and the Congress shall commanded by judicial order to compel the
be subject to review by the Supreme Court which attendance of the military officer. Final judicial
shall have the authority to determine the sufficiency orders have the force of the law of the land which
of the factual basis of such action. This matter is no the President has the duty to faithfully execute.340
longer considered a political question and may be
raised in an appropriate proceeding by any citizen. 2. Civilian Supremacy (Bernasian view)
Moreover, the Supreme Court must decide the Is the President a member of the armed
challenge within thirty days from the 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
military.341
9. The suspension of the privilege of the writ of
Bernas: The weight of authority favors the
habeas corpus shall apply only to persons facing
position that the President is not a member of
charges of rebellion or offenses inherent in or
the armed forces but remains a civilian.
directly connected with invasion.
The President’s duties as Commander-in-Chief
10. Any person arrested for such offenses must be represent only a part of the organic duties
judicially charged therewith within three days. imposed upon him. All his other functions are
Otherwise shall be released. clearly civil in nature.
• He is elected as the highest civilian officer
C. Commander-in-Chief Clause; Calling Out Power • His compensation is received for his
Power over the military services rendered as President of the
Civilian Supremacy nation, not for the individual part of his
Calling-out Power duties; no portion of its is paid from sums
appropriated for the military or naval
The President shall be the Commander-in-Chief of all 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 to prevent or suppress lawless violence, military discipline
invasion or rebellion. (Section 18, 1st sentence) • The Constitution does not require that the
President must be possessed of military
1. Power over the Military. training and talents.
The President has absolute authority over all This position in fact, is the only one compatible
members of the armed forces. (Gudani v. Senga, with Article II, Section 3, which says” “Civilian
2006) He has control and direction over them. As authority is at all times, supreme over the
Commander-in-chief, he is authorized to direct the military.” The net effect thus of Article II, Section3
movements of the naval and the military forces when read with Article VII, Section 18 is that a
placed by law at his command, and to employ them civilian President holds supreme military
in manner he may deem most effectual to harass authority and is the ceremonial, legal, and
and conquer and subdue the enemy.339 administrative head of the armed forces.342

Since the President is commander-in-chief of the 3. Calling Out Power under Section 18 (2006 Bar
Armed Forces she can demand obedience from Question)
military officers. Military officers who disobey or Most Benign power of Section 18
ignore her command can be subjected to court Use of Calling Out Power Vests No Constitutional
martial proceeding. Thus, for instance, the or Statutory Powers
President as Commander in Chief may prevent a Declaration of State of Rebellion
member of the armed forces from testifying before Declaration of State of National Emergency
a legislative inquiry. A military officer who disobeys
the President’s directive may be made to answer 340
Gudani v. Senga, G.R. No. 170165, April 15. 2006.
before a court martial. Since, however, Congress 341
Sinco, Philippine Political Law, p 261 (1954ed).
339 342
Bernas Commentary, p 866 (2003 ed) citing Fleming v. Page. Bernas Commentary, p 865 (2003 ed).

I sweat, I bleed, I soar… 84


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

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.343
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 to
power of the President. When the President
satisfy the Court not that the President’s decision is
declares a state of emergency or a state of
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 Role of Congress
in the Phil. Marines Role of the Supreme Court
3. Reproving statements of the communist
leaders
4. Minutes of the Intelligence Report and
1. Writ of HC
Security Group of the Philippine Army
showing the growing alliance between the The writ. The writ of habeas corpus is a writ
NPA and the military. directed to the person detaining another,
Did PGMA gravely abuse her discretion in commanding him to produce the body of the
calling out the AFP?
343
Bernas Commentary, p 866 (2003 ed)

I sweat, I bleed, I soar… 85


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

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.346
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.344 3. Review and possible nullification by SC347
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.345 (1997 Bar Question) martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a
Facts: Claiming they were illegally arrested without report in person or in writing to the Congress.
any warrant of arrest, petitioners sued several
officers of the AFP for damages. The officers of the 11. Role of Congress
AFP argued that the action was barred since the
suspension of the privilege of the writ of habeas a. Congress convenes
corpus precluded judicial inquiry into the legality of b. Congress may either revoke or (with President’s
their detention. initiative) extend

344 346
Moran, Rules of Court, Vol. II, 499. Jacinto Jimenez, Political Law Compendium, 322 (2006 ed.)
345 347
Cruz, Philippine Political Law, p. 210 (1995 ed). Bernas Primer at 318 (2006 ed.)

I sweat, I bleed, I soar… 86


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

“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 SC349

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.348 A State of martial law does not:
1. Suspend the operation of the Constitution
2. Martial Law, Nature 2. Supplant the functioning of the civil courts or
a. Essentially police power legislative assemblies
b. Scope of Martial Law: Flexible Concept 3. Authorize the conferment of jurisdiction on
military courts and agencies over where civil
Martial law is essentially police power. This is courts are able to function
borne out of the constitutional text which sets down

348 349
Bernas Commentary, p 870 (2003 ed). Bernas Primer at 318 (2006 ed.)

I sweat, I bleed, I soar… 87


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

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,
lifted, unless extended by Congress. and 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
1. Lifting by the President himself the concurrence of a majority of all the Members of
2. Revocation by Congress the 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.350
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.351 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.352
b. Congress may either revoke or (with President’s
initiative) extend
B. Purpose for the Grant of Power of Executive
Congress convenes. The Congress, if not in Clemency
session, shall, within twenty-four hours following
such proclamation or suspension, convene in Ratio: Human fallibility
accordance with its rules without need of a call.

Congress may revoke. The Congress, voting 350


jointly, by a vote of at least a majority of all its Bernas Commentary, p 893 (2003 ed).
351
Members in regular or special session, may revoke Bernas Commentary, p 892 (2003 ed).
352
Cruz, Philippine Political Law, p. 215 (1995 ed).

I sweat, I bleed, I soar… 88


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

Purpose. That Section 19 gives to the President Classification of Pardon


the power of executive clemency is a tacit Scope of Pardon
admission that human institutions are imperfect Limitations on Exercise
and that there are infirmities in the administration of When Completed
justice. The power therefore exists as an Effect of Pardon
instrument for correcting these infirmities and for Pardon v. Parole
mitigating whatever harshness might be
generated by a too strict application of the law.353 In 1. Pardon
recent years, it has also been used as a bargaining a. What is Pardon?
chip in efforts to unify various political forces. b. Pardon as an act of grace
c. What does pardon imply?
C. Forms of Executive Clemency (1988 Bar Question)
1. Reprieves- a postponement of a sentence to a a. Act of grace which exempts the individual on
date certain, or a stay in the execution. whom it is bestowed form the punishment which
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
3. Pardons- act of grace which exempts the power can compel the executive to give it. It is an
individual on whom it is bestowed form the act of pure generosity of the executive and it is his
punishment which the law inflicts for the crime he to give or to withdraw before it is completed.356
has committed. Congress has no authority to limit the effects of the
4. Remission of fines President’s pardon, or to exclude from its scope
5. Forfeitures any class of offenders. Courts may not inquire in to
6. Amnesty- commonly denotes the ‘general pardon the wisdom or reasonableness of any pardon
to rebels for their treason and other high political granted by the President.357
offenses’.
c. Pardon implies guilt. A pardon looks to the
D. Limits on Executive Clemency future.
Constitutional Limits on Executive Clemency:
2. Classification of Pardon
1. It cannot be exercised in cases of
impeachment 1. Plenary- Extinguishes all the penalties
imposed upon the offender, including
2. Reprieves, commutations, and pardons, and accessory disabilities.
remission of fines and forfeitures can be given
only “after conviction by final judgment; 2. Partial-Does not extinguish all the penalties.
3. A grant of amnesty must be with the 3. Absolute- One extended without any strings
concurrence of a “majority of all the Members attached.
of Congress” 4. Conditional- One under which the convict is
4. No pardon, amnesty, parole, or suspension of required to comply with certain requirements.
sentence for violation of election laws, rules, a. Pardonee may reject conditional
and regulations shall be granted by the pardon. Where the pardon is conditional,
President without the favorable the offender has the right to reject the
recommendation of COMELEC.354 same since he may feel that the condition
Other Limitations: imposed is more onerous than the penalty
1. A pardon cannot be extended to a person sought to be remitted358
convicted of legislative contempt or civil b. Condition, lawful. It is necessary that the
contempt. condition should not be contrary to any
2. Pardon cannot also be extended for the provision of law.359
purpose of absolving the pardonee of civil
liability, including judicial costs. c. Condition, co-extensive. The condition
of the pardon shall be co-extensive with
3. Pardon will not restore offices forfeited.355 the penalty remitted. Hence, if the
condition is violated after the expiration of
E. Pardon the remitted penalty, there can no longer
Definition of Pardon be violation of the conditional pardon.
353
Bernas Primer at 320 (2006 ed.) Cruz, Philippine Political Law,
p. 215 (1995 ed). 356
Bernas Commentary, p 894 (2003 ed).
Bernas Primer at 320 (2006 ed.) 357
Sinco, Philippine Political Law, p 281 (1954ed).
354
Bernas Commentary, p 893 (2003 ed). 358
Cruz, Philippine Political Law, p. 217 (1995 ed).
355 359
Cruz, Philippine Political Law, p. 216 (1995 ed). Sinco, Philippine Political Law, p 281 (1954ed).

I sweat, I bleed, I soar… 89


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

d. When the condition is that the recipient of consequence of the conviction and
the pardon should not violate any of the judgment.364
penal laws, who determines whether
penal laws have been violated? Must the 5. When Act of Pardon Completed
recipient of pardon undergo trial and be
convicted for the new offenses? The rule Conditional: A pardon must be delivered to and
that is followed is that the acceptance of accepted by the offender before it takes effect.
the conditions of the pardon imports the
acceptance of the condition that the Reason: The reason for requiring
President will also determine whether the acceptance of a pardon is the need for
condition has been violated. (Torres v. protecting the welfare of its recipient.
Gonzales, 152 SCRA 272 (1987)) (1997, The condition may be less acceptable to
2005 Bar Question) him than the original punishment, and
may in fact be more onerous.365

3. Scope of Pardon360 Absolute: Bernas submits that acceptance by the


In granting the President the power of executive condemned is required only when the offer of
clemency, the Constitution does not distinguish clemency is not without encumbrance.366 (1995
between criminal and administrative cases. Bar Question)
(Llamas v. Orbos)
Note: A pardon obtained by fraud upon the
Pardon is only granted after conviction of final pardoning power, whether by misrepresentation or
judgment. by suppression of the truth or by any other
A convict who has already served his prison term imposition, is absolutely void.367
may still be extended a pardon for the purpose of
relieving him of whatever accessory liabilities have 6. Effects of Pardon
attached to his offense.361 a. Relieves criminal liability368
b. Does not absolve civil liabilities
c. Does not restore public offices already forfeited,
4. Limitations on Exercise of Pardon although eligibility for the same may be restored.
Constitutional Limitations
a. As to punitive consequences and fines in
1. It cannot be exercised in cases of favor of government. Pardon relieves a party
impeachment from all punitive consequences of his criminal act.
2. Reprieves, commutations, and pardons, Pardon will have the effect of remitting fines and
and remission of fines and forfeitures can forfeitures which otherwise will inure to the
be given only “after conviction by final interests of the government itself.
judgment;
3. No pardon, amnesty, parole, or b. As to civil liabilities pertaining to private
suspension of sentence for violation of litigants. Pardon will not relieve the pardonee of
election laws, rules, and regulations shall the civil liability and such other claims, as may
be granted by the President without the pertain to private litigants.
favorable recommendation of
COMELEC.362 c. As Regards Reinstatement:
Other Limitations: i. One who is given pardon has no demandable
1. A pardon cannot be extended to a person right to reinstatement. He may however be
convicted of legislative contempt or civil reappointed. (Monsanto v. Factoran, 1989)
contempt. (Once reinstated, he may be given his former
2. Pardon cannot also be extended for the rank. See Sabello v. Dept. of Education, 1989,
purpose of absolving the pardonee of civil Bernas Primer at 322)
liability, including judicial costs. ii. However, if a pardon is given because he was
acquitted on the ground that he did not commit
3. Pardon will not restore offices forfeited363 the crime, then reinstatement and backwages
or property or interests vested in others in would be due. (Garcia v. COA, 1993)

364
Sinco, Philippine Political Law, p 283 (1954ed).
360
Jacinto Jimenez, Political Law Compendium 323 (2006 ed.) 365
Bernas Commentary, p 894 (2003 ed).
361
Cruz, Philippine Political Law, p. 218 (1995 ed). 366
Bernas Commentary, p 895 (2003 ed).
362
Bernas Commentary, p 893 (2003 ed). 367
Sinco, Philippine Political Law, p 283 (1954ed).
363 368
Cruz, Philippine Political Law, p. 216 (1995 ed). Sinco, Philippine Political Law, p 286 (1954ed).

I sweat, I bleed, I soar… 90


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

4. Effect of Application
In order that a pardon may be utilized as a defense
in subsequent judicial proceedings, it is necessary By applying for amnesty, the accused must be
that it must be pleaded.369 deemed to have admitted the accusation against
him. (People v. Salig, 133 SCRA 59)
7. Pardon v. Parole
5. Effects of the Grant of Amnesty
Parole involves only a release of the convict from
imprisonment but not a restoration of his liberty. Criminal liability is totally extinguished by amnesty;
The parolee is still in the custody of the law the penalty and all its effects are thus extinguished.
although no longer under confinement, unlike the (See Article 89 of RPC)
pardonee whose sentence is condoned, subject
only to reinstatement in case of violation of the It has also been held that when a detained convict
condition that may have been attached to the claims to be covered by a general amnesty, his
pardon.370 proper remedy is not habeas corpus petition.
Instead, he should submit his case to the proper
F. Amnesty amnesty board.375
Definition
Nature 6. Requisites (1993 Bar Question)
Time of Application 1. Concurrence of a majority of all the members of
Effect of Application Congress (Section 19)
Effects of Grant of Amnesty 2. There must be a previous admission of guilt.
Requirements (Vera v. People)
Pardon v. Amnesty
Tax Amnesty 7. Pardon v. Amnesty

1. Definition of Amnesty Pardon Amnesty


Addressed to ODINARY Addressed to POLITICAL
Grant of general pardon to a class of political offenses offenses
offenders either after conviction or even before the Granted to INDIVIDUALS Granted to a CLASS of
charges are filed. It is the form of executive persons
clemency which under the Constitution may be Conditional pardon must Need not be Accepted
granted by the executive only with the concurrence be accepted
of the legislature.371 No need for congressional Requires congressional
concurrence concurrence
2. Nature Private act of the A public act, subject to
President judicial notice
It is essentially an executive act and not a Pardon looks forward. Amnesty looks backward
legislative act.372 (Though concurrence of Congress
is needed) Only penalties are Extinguishes the offense
extinguished. itself376
(According to Sinco citing Brown v. Walker, 161 US Civil indemnity is not
591, Congress is not prohibited from passing acts extinguished.
of general amnesty to be extended to persons Only granted after Maybe granted before or
before conviction.)373 conviction of final after conviction
judgment
3. Time of Application374 (1995 Bar Question)
7. Tax Amnesty
Amnesty may be granted before or after the a. Legal Nature
institution of criminal prosecution and sometimes b. Needs Concurrence of Congress
even after conviction. (People v. Casido, 268 SCRA
360) a. Legal Nature. Tax amnesty is a general pardon
or intentional overlooking of its authority to impose
369
penalties on persons otherwise guilty of evasion or
Sinco, Philippine Political Law, p 283 (1954ed). violation of revenue or tax law, [and as such]
370
Cruz, Philippine Political Law, p. 220 (1995 ed). partakes of an absolute forgiveness or waiver by
371
Bernas Commentary, p 897 (2003 ed). the Government of its right to collect what
372
Bernas Commentary, p 898 (2003 ed).
373
Sinco, Philippine Political Law, p 285 (1954ed). 375
Bernas Commentary, p 901 (2003 ed).
374 376
Jacinto Jimenez, Political Law Compendium 325 (2006 ed.) See Bernas Commentary, p 899 (2003 ed).

I sweat, I bleed, I soar… 91


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

otherwise would be due it. (Republic v. IAC, Power to contract or guarantee foreign loans
1991)377 Duty of the Monetary Board

b. Needs Concurrence of Congress. Bernas Section 20. The President may contract or
submits that the President cannot grant tax guarantee foreign loans on behalf of the Republic of
amnesty without the concurrence of Congress.378 the Philippines with the prior concurrence of the
Monetary Board, and subject to such limitations as
may be provided by law. The Monetary Board shall,
G. Other Forms of Executive Clemency
within thirty days from the end of every quarter of the
calendar year, submit to the Congress a complete
Grant of reprieves, commutations and remission of report of its decision on applications for loans to be
fines and forfeitures are explicit in the Constitution. contracted or guaranteed by the Government or
government-owned and controlled corporations
1. Reprieve which would have the effect of increasing the foreign
debt, and containing other matters as may be
provided by law.
A reprieve is a postponement of a sentence to a
date certain, or a stay in the execution.
A. Power to contract or guarantee foreign loans
2. Commutation Requirements
Reason for Concurrence
Commutation is a remission of a part of the Why the Monetary Board
punishment; a substitution of a less penalty for the Spouses Constantino v. Cuisia
one originally imposed. Commutation does not
have to be in any form. Thus, the fact that a convict 1. Requirements (1994 Bar Question)
was released after six years and placed under The President may contract or guarantee foreign
house arrest, which is not a penalty, already leads loans on behalf of the Republic of the Philippines:
to the conclusion that the penalty have been 1. With the prior concurrence of the
shortened. (Drilon v. CA) Monetary Board, and
Commutation is a pardon in form but not in 2. Subject to such limitations as may be
substance, because it does not affect his guilt; it provided by law
merely reduces the penalty for reasons of public
interest rather than for the sole benefit of the 2. Reason for Concurrence
offender. In short, while a pardon reaches “both A President may be tempted to contract or
punishment prescribed for the offense and guilt of guarantee loans to subsidize his program of
the offender,” a commutation merely reduces the government and leave it to succeeding
punishment.379 administration to pay. Also, it will enable foreign
lending institutions to impose conditions on loans
3. Remission that might impair our economic and even political
independence.383
Remission of fines and forfeitures merely prevents
the collection of fines or the confiscation of forfeited 3. Why the Monetary Board.
property; it cannot have the effect of returning Because the Monetary Board has expertise and
property which has been vested in third parties or consistency to perform the mandate since such
money already in the public treasury.380 expertise or consistency may be absent among the
Members of Congress.384
The power of the Chief Executive to remit fines and
forfeitures may not be limited by any act of 4. Spouses Constantino v. Cuisia (2005)
Congress.381 But a statute may validly authorize Q: The financing program for foreign loans
other officers, such as department heads or bureau instituted by the President extinguished portions of
chiefs, to remit administrative fines and the country’s pre-existing loans through either debt
forfeitures.382 buyback or bond-conversion. The buy-back
approach essentially pre-terminated portions of
IX. Borrowing Power public debts while the bond conversion scheme
extinguished public debts through the obtention of
a new loan by virtue of a sovereign bond issuance,
377
Bernas Primer at 323 (2006 ed.) the proceeds of which in turn were used for
378
Bernas Primer at 323 (2006 ed.) terminating the original loan. Petitioners contend
379
Sinco, Philippine Political Law, p 284 (1954ed).
380
Bernas Commentary, p 901 (2003 ed).
381 383
Sinco, Philippine Political Law, p 285 (1954ed). Cruz, Philippine Political Law, p. 223 (1995 ed).
382 384
Sinco, Philippine Political Law, p 284 (1954ed). Bernas Primer at 325 (2006 ed.)

I sweat, I bleed, I soar… 92


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

that buyback or bond conversion are not conduct of external affairs is executive
authorized by Article VII, Section 20. altogether.388 He is the sole organ authorized “to
speak or listen” for the nation in the broad field of
A: The language of the Constitution is simple and external affairs.389
clear as it is broad. It allows the President to
contract and guarantee foreign loans. It makes no B. Foreign Relations Powers of the President
prohibition on the issuance of certain kinds of loans 1. The power to negotiate treaties and
or distinctions as to which kinds of debt instruments international agreements;
are more onerous than others. This Court may not 2. The power to appoint ambassadors and other
ascribe to the Constitution the meanings and public ministers, and consuls;
restrictions that would unduly burden the powers of 3. The power to receive ambassadors and other
the President. The plain, clear and unambiguous public ministers accredited to the Philippines;
language of the Constitution should be 4. The power to contract and guarantee foreign
construed in a sense that will allow the full loans on behalf of the Republic;
exercise of the power provided therein. It would
be the worst kind of judicial legislation if the courts
5. The power to deport aliens.390
were to construe and change the meaning of the 6. The power to decide that a diplomatic officer
organic act.385 who has become persona non grata be
recalled.391
7. The power to recognize governments and
B. Duty of the Monetary Board withdraw recognition392
Duty of MB
Reason for Reporting C. Source of Power
The extensive authority of the President in foreign
1. Duty relations in a government patterned after that of the
The Monetary Board shall, within thirty days from US proceeds from two general sources:
the end of every quarter of the calendar year, 1. The Constitution
submit to the Congress a complete report of its 2. The status of sovereignty and
decision on applications for loans to be contracted independence of a state.
or guaranteed by the Government or government- In other words, the President derives his powers
owned and controlled corporations which would over the foreign affairs of the country not only from
have the effect of increasing the foreign debt, and specific provisions of the Constitution but also from
containing other matters as may be provided by customs and positive rules followed by
law. independent states in accordance with international
law and practice.393
2. Reason for Reporting
In order to allow Congress to act on whatever D. Concurrence of Senate
legislation may be needed to protect public When Concurrence of Senate Needed
interest.386 When Concurrence of Senate Not Needed
Scope of Power to Concur
Treaty
X. Foreign Affairs Power/Diplomatic Power
Section 21. No treaty or international agreement
The President and Foreign Affairs Power shall be valid and effective unless concurred in by at
Foreign Relations Powers of the President least two-thirds of all the Members of the Senate.
Source of Power
Concurrence by the Senate 1. When Concurrence of Senate Needed
Treaties v. Executive Agreements Concurrence of at leas 2/3 of all the members of
Power to Deport Senate is need for the validity and effectivity of:
Judicial Review

A. The President and Foreign Affairs Powers


388
As head of State, the President is supposed to the Cruz, Philippine Political Law, p. 323 (1995 ed).
spokesman of the nation on external affairs.387 The 389
Sinco, Philippine Political Law, p 298 (1954ed).
390
Bernas Primer at 326 (2006 ed.)
391
385
Spouses Constantino v. Cuisia, G.R. 106064, October 13, 2005; Bernas Commentary, p 910 (2003 ed).
See Bernas Primer at 326 (2006 ed.) 392
Bernas Commentary, p 910 (2003 ed); Sinco, Philippine Political
386
Bernas Primer at 325 (2006 ed.) Law, p 306 (1954ed).
387 393
Cruz, Philippine Political Law, p. 323 (1995 ed). Sinco, Philippine Political Law, p 243 (1954ed).

I sweat, I bleed, I soar… 93


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

1. Treaties of whatever kind, whether 2. Treaty Approval397


bilateral or multilateral.394
2. International Agreements (that which are c. Effect of Treaties
permanent and original) 1. Contract between states as parties
2. It is a law for the people of each state to
2. When Concurrence of Senate Not Needed observe (municipal law)398
(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.395 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
The power to ratify is vested in the President well established national policies and traditions
subject to the concurrence of Senate. The role of and 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. 396 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
b. Two General Steps Congress May Not Increase Appropriations
1. Negotiation- Here the President alone has
authority Section 22. The President shall submit to the
Congress within thirty days from the opening of
every regular session, as the basis of the general
394
Bernas Commentary, p 894 (2003 ed). appropriations bill, a budget of expenditures and
sources of financing, including receipts from existing
Note that a treaty which has become customary law may become
and proposed revenue measures.
part of Philippine law by incorporation through Article 2 Section.
-asm
395 397
Bernas Primer at 326 (2006 ed.) Sinco, Philippine Political Law, p 299 (1954ed).
396 398
. Sinco, Philippine Political Law, p 299 (1954ed). Sinco, Philippine Political Law, p 300 (1954ed).

I sweat, I bleed, I soar… 94


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

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.404
position to determine the needs of the government
and propose the corresponding appropriations
therefor on the basis of existing or expected
sources of revenue.399

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.400

The phrase “sources of financing” has reference to


sources other than taxation.401

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 Accountability402
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

Although couched in mandatory language, the first


sentence of this provision does not as a rule
impose a compellable duty on the President.403

399
Cruz, Philippine Political Law, p. 224 (1995 ed).
400
Bernas Primer at 329 (2006 ed.)
401
Bernas Commentary, p 912 (2003 ed).
402
Guingona v. Carague, 196 SCRA 221 (1991); Bernas
Commentary, p 912 (2003 ed).
403 404
Cruz, Philippine Political Law, p. 225 (1995 ed). Cruz, Philippine Political Law, p. 226 (1995 ed).

I sweat, I bleed, I soar… 95


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

subject to confirmation by Commission on


Appointments. (art. 8 §9)
JUDICIAL DEPARTMENT 6. The Supreme Court now has administrative
supervision over all lower courts and their
personnel. (art. 8 §6)
I. JUDICIAL DEPARTMENT 7. The Supreme Court has exclusive power to
II. JUDICIAL POWER(Section 1) discipline judges of lower courts. (art 8 §11)
III. JURISDICTION (Section 2) 8. The members of the Supreme Court and all
IV. THE SUPREME COURT(Sections 4, 7-12) lower courts have security of tenure, which
V. POWERS OF THE SUPREME COURT cannot be undermined by a law reorganizing
the judiciary. (art. 8 §11)
(Sections 5,6, 11, 16)
9. They shall not be designated to any agency
VI. JUDICIAL REVIEW performing quasi-judicial or administrative
VII. DECIDING A CASE (Sections 4,13-15) functions. (art. 8 §12)
VIII. OTHER COURTS 10. The salaries of judges may not be reduced
during their continuance in office. (art. 8 §10)
I. Judicial Department 11. The judiciary shall enjoy fiscal autonomy (art
Composition 8§3)
Common Provisions 12. Only the Supreme Court may order the
Independence of Judiciary temporary detail of judges (art 8 §5(3))
13. The Supreme Court can appoint all officials
A. Composition and employees of the judiciary. (art. 8 §5(6))

The Supreme Court and all lower courts make up the Section 3. The Judiciary shall enjoy fiscal autonomy.
judicial department of our government.405 Appropriations for the Judiciary may not be reduced
by the legislature below the amount appropriated for
B. Common Provisions the previous year and, after approval, shall be
automatically and regularly released.
1. Independence of Judiciary (See Section 3)
2. Congressional Oversight (Section 2) (1999 Bar Question)
3. Separation of Powers (Section 12) Fiscal autonomy means freedom from outside
4. General Rules (Section 14) control.As envisioned in the Constitution, fiscal
autonomy enjoyed by the Judiciary…contemplates
5. Period to Decide Case (Section 15) a guarantee of full flexibility to allocate and
utilize their resources with the wisdom and
C. Independence of Judiciary (2000 Bar Question) dispatch that their needs, require.

To maintain the independence of the judiciary, the Fiscal autonomy recognizes the power and
following safeguards have been embodied in the authority to (a) levy, assess and collect fees, (b) fix
Constitution:406 rates of compensation not exceeding the highest
1. The Supreme Court is a constitutional body. It rates authorized by law for compensation, and (c)
cannot be abolished nor may its membership pay plans of the government and allocate or
or the manner of its meeting be changed by disburse such sums as may be provided by law or
mere legislation. (art 8 §2) prescribed by them in the course of the discharge
2. The members of the Supreme Court may not of their functions.
be removed except by impeachment. (art. 9
§2) The imposition of restrictions and constraints on
3. The SC may not be deprived of its minimum the manner the [Supreme Court] allocate and
original and appellate jurisdiction as prescribed utilize the funds appropriated for their operations is
in Article X, Section 5. (art. 8 §2) anathema to fiscal autonomy and violative of the
4. The appellate jurisdiction of the Supreme express mandate of the Constitution and of the
Court may not be increased by law without its independence and separation of powers. (Bengzon
advice or concurrence. (art. 6 §30) v. Drilon)
5. Appointees to the judiciary are now nominated
by the Judicial and Bar Council and no longer Reason. Fiscal autonomy is granted to the
Supreme Court to strengthen its autonomy.407 The
provision is intended to remove courts from the
mercy and caprice, not to say vindictiveness, of the
405
Cruz, Philippine Political Law, p. 231 (1995 ed).
406 407
Cruz, Philippine Political Law, p. 229 (1995 ed). Bernas Primer at 336 (2006 ed.)

I sweat, I bleed, I soar… 96


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

legislature when it considers the general the same- the temporary suspension of the
appropriations bill.408 execution of the death convict.” (Echegaray v. Sec.
of Justice, 1999)
II. Judicial Power
D. Limit on Judicial Power
Where Vested (1) Courts may not assume to perform non-judicial
Definition functions.
Scope (2) It is not the function of the judiciary to give
Intrinsic Limit on Judicial Power advisory opinion
Grave Abuse of Discretion (3) Judicial power must sometimes yield to
Role of Legislature in Judicial Process separation of powers, political questions and
enrolled bill rule.
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
1. By the principle of separation of powers, courts
Judicial power includes the duty of the courts of justice to may neither attempt to assume nor be
settle actual controversies involving rights which are compelled to perform non-judicial functions.411
legally demandable and enforceable, and to determine Thus, a court may not be required to act as a board
whether or not there has been a grave abuse of discretion of arbitrators (Manila Electric Co. v. Pasay
amounting to lack or excess of jurisdiction on the part of Transportation (1932). Nor may it be charged with
any branch or instrumentality of the Government. administrative functions except when reasonably
incidental to the fulfillment of official duties.
A. Judicial Power Where Vested (1989 Bar Question) (Noblejas v. Tehankee) Neither is it’s the function of
the judiciary to give advisory opinions.
Judicial power shall be vested in one Supreme
Court and in such lower courts as may be 2. Advisory Opinions.
established by law. (Section 1 par. 1) An advisory opinion is an opinion issued by a
court that does not have the effect of resolving a
B. Definition of Judicial Power (1994 Bar Question) specific legal case, but merely advises on the
constitutionality or interpretation of a law.
Traditional Concept: Judicial power includes the
duty of the courts of justice to settle actual The nature of judicial power is also the foundation
controversies involving rights which are legally of the principle that it is not the function of the
demandable and enforceable. (Section 1, 2nd judiciary to give advisory opinion.412 If the courts
sentence) will concern itself with the making of advisory
opinions, there will be loss of judicial prestige.
Broadened Concept: Duty to determine whether There may be less than full respect for court
[or not] there has been a grave abuse of discretion decisions.
amounting to lack or excess of jurisdiction on the
party of any branch or instrumentality of the Declaratory Judgment v. Advisory
Government. (Section 1, 2nd sentence) Opinions.
Declaratory Advisory
C. Scope of Judicial Power (1989 Bar Question) Judgment Opinions
Involves real parties Response to a legal
with real conflicting issue posed in the
Judicial power is the measure of the allowable interests abstract in advance of
scope of judicial action.409 The use of the word any actual case in
“includes” in Section 1 connotes that the provision which it may be
is not intended to be an exhaustive list of what presented
judicial power is.410 Judgment is a final Binds no one
one forever binding
An accused who has been convicted by final on the parties.
judgment still possesses collateral rights and these A judicial act Not a judicial act413
rights can be claimed in the appropriate courts [e.g.
death convict who becomes insane after his final 3. The ‘broadened concept’ of judicial power is not
conviction cannot be executed while in a state of meant to do away with the political questions
insanity] The suspension of death sentence is an doctrine itself. The concept must sometimes yield
exercise of judicial power. It is not usurpation of the to separation of powers, to the doctrine on
presidential power of reprieve though the effect is
408
Cruz, Philippine Political Law, p. 237 (1995 ed). 411
Bernas Commentary, p 916 (2003 ed).
409 412
Bernas Commentary, p 914 (2003 ed). Bernas Commentary, p 921 (2003 ed).
410 413
Bernas Commentary, p 919 (2003 ed). Bernas Commentary, p 924 (2003 ed).

I sweat, I bleed, I soar… 97


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

“political questions” or to the “enrolled bill” III. Jurisdiction


rule.414
Definition
E. Grave Abuse Clause Scope
Role of Congress
“To determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the Section 2. The Congress shall have the power to define,
part of any branch or instrumentality of the Government” prescribe, and apportion the jurisdiction of the various
courts but may not deprive the Supreme Court of its
jurisdiction over cases enumerated in Section 5 hereof.
Not every abuse of discretion can be the occasion No law shall be passed reorganizing the Judiciary when it
for the Court to come in by virtue of the second under-mines the security of tenure of its Members.
sentence of Section 1. It must be “grave abuse of
discretion amounting to lack or excess of A. Definition
jurisdiction.”415

There is grave abuse of discretion: Jurisdiction is the power and authority of the court
to hear, try and decide a case. (De La Cruz v. CA,
(1) when an act done contrary to the
Constitution, the law, or jurisprudence, or 2006)
(2) it is executed whimsically, capriciously, B. Scope
arbitrarily out of malice, ill will or personal
bias. (Infotech v. COMELEC, 2004) It is not only the (1) power to determine, but the
(2) power to enforce its determination.
Again, the ‘broadened concept’ of judicial power is The (3) power to control the execution of its
not meant to do away with the political questions decision is an essential aspect of jurisdiction
doctrine itself. The concept must sometimes yield (Echegaray . Sec. of Justice, 301 SCRA 96)
to separation of powers, to the doctrine on “political
questions” or to the “enrolled bill” rule.416 (1995 Bar C. Role of Congress
Question)
Power. The Congress shall have the power to
Rule 65 embodies the Grave Abuse Clause.417
define, prescribe, and apportion the jurisdiction of
the various courts. (Section 2)
F. Role of Legislature in Judicial Process
Limitations:
Although judicial power is vested in the judiciary,
the proper exercise of such power requires prior 1. Congress may not deprive the Supreme
legislative action: Court of its jurisdiction over cases
1. Defining such enforceable and enumerated in Section 5. ( art. 8 §2)
demandable rights; and 2. No law shall be passed reorganizing the
2. Determining the court with jurisdiction to Judiciary when it under-mines the security
hear and decide controversies or disputes of tenure of its Members. ( art. 8 §2)
arising from legal rights.418 3. The appellate jurisdiction of the Supreme
Court may not be increased by law except
Courts cannot exercise judicial power when there is upon its advice and concurrence. (art. 6 §
no applicable law. The Court has no authority to 30)
entertain an action for judicial declaration of
citizenship because there was no law authorizing * Jurisdiction in Section 2 refers to jurisdiction over
such proceeding. (Channie Tan v. Republic, 107 cases [jurisdiction over the subject matter].420
Phil 632 (1960)) An award of honors to a student
by a board of teachers may not be reversed by a IV. The Supreme Court
court where the awards are governed by no
Composition
applicable law. (Santiago Jr. v. Bautista) Nor may Qualifications
courts reverse the award of a board of judges in an
Judicial and Bar Council
oratorical contest. (Felipe v. Leuterio, 91 Phil 482 Appointment
(1952)).419
Salaries
Tenure
414
See Bernas Commentary, p 919-920 (2003 ed). Removal
415 Prohibition
Bernas Commentary, p 920 (2003 ed).
416
See Bernas Commentary, p 919-920 (2003 ed).
419
417
Annotation to the Writ of Amparo. Bernas Primer at 335 (2006 ed.)
418 420
Bernas Primer at 335 (2006 ed.) Cruz, Philippine Political Law, p. 2333 (1995 ed).

I sweat, I bleed, I soar… 98


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

It behooves every prospective appointee to the


A. Composition Judiciary to apprise the appointing authority of
every matter bearing on his fitness for judicial
Section 4. (1) The Supreme Court shall be composed office, including such circumstances as may reflect
of a Chief Justice and fourteen Associate Justices. It on his integrity and probity. Thus the fact that a
may sit en banc or in its discretion, in division of three, prospective judge failed to disclose that he had
five, or seven Members. Any vacancy shall be filled been administratively charged and dismissed from
within ninety days from the occurrence thereof. the service for grave misconduct by a former
President of the Philippines was used against him.
Composition of the Supreme Court: Fifteen (15). It did not matter that he had resigned from office
1 Chief Justice and 14 Associate Justices. and that the administrative case against him had
become moot and academic.424
By so fixing the number of members of the Similary, before one who is offered an appointment
Supreme Court at [fifteen], it seems logical to infer to the Supreme Court can accept it, he must
that no statute may validly increase or decrease correct the entry in his birth certificate that he is an
it.421 alien.425

Collegiate Court. The primary purpose of a “A Member of the Judiciary must be a person of proven
collegiate court is precisely to provide for the most competence, integrity, probity, and independence.”
exhaustive deliberation before a conclusion is
reached.422 Competence. In determining the competence of the
applicant or recommendee for appointment, the Judicial
B. Qualifications and Bar Council shall consider his educational
preparation, experience, performance and other
Section 7. (1) No person shall be appointed Member accomplishments of the applicant. (Rule 3 Section 1 of
of the Supreme Court or any lower collegiate court JBC Rules)
unless he is a natural-born citizen of the Philippines. A Integrity. The Judicial and Bar Council shall take every
Member of the Supreme Court must be at least forty possible step to verify the applicant’s record of and
years of age, and must have been for fifteen years or reputation for honesty, integrity, incorruptibility,
more a judge of a lower court or engaged in the irreproachable conduct and fidelity to sound moral and
practice of law in the Philippines. ethical standards. (Rule 4, Section 1 of JBC Rules)
(2) The Congress shall prescribe the qualifications of
judges of lower courts, but no person may be
Probity and Independence. Any evidence relevant to
appointed judge thereof unless he is a citizen of the the candidate’s probity and independence such as, but
Philippines and a member of the Philippine Bar. not limited to, decision he has rendered if he is an
(3) A Member of the Judiciary must be a person of incumbent member of the judiciary or reflective of the
proven competence, integrity, probity, and soundness of his judgment, courage, rectitude, cold
independence. neutrality and strength of character shall be considered.
(Rule 5 Section of JBC Rules)
Qualifications of a Member of the Supreme
Court: C. Judicial and Bar Council (1988, 1999 Bar
1. Must be a natural born citizen of the Question)
Philippines Composition
2. Must at least be 40 years of age; Function
3. Must have been for 15 years or more a judge Reason for Creation
of a lower court or engaged in the practice of
law in the Philippines; and Section 8.
4. A person of proven competence, integrity, (1) A Judicial and Bar Council is hereby created under
probity, and independence. the supervision of the Supreme Court composed of the
Chief Justice as ex officio Chairman, the Secretary of
Congress may not alter the qualifications of Justice, and a representative of the Congress as ex
Members of the Supreme Court and the officio Members, a representative of the Integrated Bar,
a professor of law, a retired Member of the Supreme
constitutional qualifications of other members of Court, and a representative of the private sector.
the Judiciary. But Congress may alter the statutory (2) The regular members of the Council shall be
qualifications of judges and justices of lower appointed by the President for a term of four years with
courts.423 the consent of the Commission on Appointments. Of
the Members first appointed, the representative of the

424
In re JBC v. Judge Quitain, JBC No. 013, August 22, 2007.
425
421 Kilosbayan v. Ermita, G.R. No. 177721, July 3, 2007. This was
Sinco, Philippine Political Law, p 318 (1954ed).
422 the case of Justice Gregory Ong of the Sandiganbayanwho was being
Cruz, Philippine Political Law, p. 268 (1995 ed). promoted to the Supreme court. Ong, however, remains in the
423
Bernas Primer at 356 (2006 ed.) Sandiganbayan.

I sweat, I bleed, I soar… 99


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

Integrated Bar shall serve for four years, the professor


of law for three years, the retired Justice for two years, For every vacancy, the Judicial and Bar Council
and the representative of the private sector for one submits to the President a list of at least three
year. names. The President may not appoint anybody
(3) The Clerk of the Supreme Court shall be the who is not in the list. If the President is not satisfied
Secretary ex officio of the Council and shall keep a
record of its proceedings. with the list, he may ask for another list.429
(4) The regular Members of the Council shall receive
such emoluments as may be determined by the Why at least 3? The reason for requiring at least
Supreme Court. The Supreme Court shall provide in its three nominees for every vacancy is to give the
annual budget the appropriations for the Council. President enough leeway in the exercise of his
(5) The Council shall have the principal function of discretion when he makes his appointment. If the
recommending appointees to the Judiciary. It may nominee were limited to only one, the appointment
exercise such other functions and duties as the would in effect be made by the Judicial and Bar
Supreme Court may assign to it.
Council, with the President performing only the
mathematical act of formalizing the commission.430
Composition of JBC:
1. SC Chief Justice (ex officio Chairman) Judges may not be appointed in an acting capacity
Ex officio Members or temporary capacity.431 It should be noted that
2. Secretary of Justice what the Constitution authorizes the President to
3. Representative of Congress do is to appoint Justices and judges and not the
Regular Members (Term of 4 years appointed authority merely to designate a non-member of
by President with the consent of CA) the Supreme Court temporarily to sit as Justice of
4. Representative of IBP Supreme Court.432
5. Professor of Law
6. Retired Member of SC ASM: Do you know that when there is a vacancy in
7. Representative of private sector the Supreme Court, the remaining members of the
Tribunal vote and make a recommendation to the
The Clerk of the Supreme Court shall be the Judicial and Bar Council.
Secretary ex officio of the JBC.
E. Salaries
Representative from Congress. Such
representative may come from either House. Section 10. The salary of the Chief Justice and of the
In practice, the two houses now work out a Associate Justices of the Supreme Court, and of
way of sharing representation.426 A member judges of lower courts shall be fixed by law. During
from each comes from both Houses but each their continuance in office, their salary shall not be
have only half a vote.427 decreased.

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.433

Rationale for Creation of JBC. The Council was The clear intent of the Constitutional Commission
principally designed to eliminate politics from the was to subject the salary of the judges and justices
appointment and judges and justices. Thus, to income tax. (Nitafan v. CIR, 1987)
appointments to the Judiciary do not have to go
through a political Commission on Appointments.428 F. Tenure

D. Appointment Section 11. The Members of the Supreme Court and


judges of lower courts shall hold office during good
Section 9. The Members of the Supreme Court and behavior until they reach the age of seventy years or
judges of lower courts shall be appointed by the become incapacitated to discharge the duties of their
President from a list of at least three nominees office. The Supreme Court en banc shall have the
prepared by the Judicial and Bar Council for every power of discipline judges of lower courts, or order their
vacancy. Such appointments need no confirmation. dismissal by a vote of a majority of the Members who
For the lower courts, the President shall issue the
appointments within ninety days from the submission of 429
the list. Bernas Commentary, p 985 (2003 ed).
430
Cruz, Philippine Political Law, p. 234 (1995 ed).
426
Bernas Primer at 356 (2006 ed.) 431
Cruz, Philippine Political Law, p. 237 (1995 ed).
427 432
Bernas Commentary, p 984 (2003 ed). Bernas Commentary, p 985 (2003 ed).
428 433
Bernas Primer at 357 (2006 ed.) Bernas Commentary, p 986 (2003 ed).

I sweat, I bleed, I soar… 100


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

actually took part in the deliberations on the issues in General Power


the 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
By Impeachment. The Members of the Supreme Administrative Supervision of Courts
Court are removable only by impeachment. They Disciplinary/Dismissal Powers
can be said to have failed to satisfy the Contempt Powers
requirement of “good behavior” only if they are Annual Report
guilty of the offenses which are constitutional
grounds of impeachment. Section 5. The Supreme Court shall have the following
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
2. Treason; or certiorari as the law or the Rules of Court may
3. Bribery; provide, final judgments and orders of lower courts in:
4. Graft and Corruption; (a) All cases in which the constitutionality or
5. Other High Crimes validity of any treaty, international or executive
agreement, law, presidential decree, proclamation,
6. Betrayal of Public Trust(Article XI, Section order, instruction, ordinance, or regulation is in
2) question.
(b) All cases involving the legality of any tax,
A Supreme Court Justice cannot be charged in a impost, assessment, or toll, or any penalty imposed in
criminal case or a disbarment proceeding, because relation thereto.
(c) All cases in which the jurisdiction of any
the ultimate effect of either is to remove him from
lower court is in issue.
office, and thus circumvent the provision on (d) All criminal cases in which the penalty
removal by impeachment thus violating his security imposed is reclusion perpetua or higher.
of tenure (In Re: First Indorsement from Hon. Raul (e) All cases in which only an error or question
Gonzalez, A.M. No. 88-4-5433) of law is involved.
3. Assign temporarily judges of lower courts to other
H. Prohibition stations as public interest may require. Such temporary
assignment shall not exceed six months without the
consent of the judge concerned.
Section 12. The Members of the Supreme Court and 4. Order a change of venue or place of trial to avoid a
of other courts established by law shall not be miscarriage of justice.
designated to any agency performing quasi-judicial or 5. Promulgate rules concerning the protection and
administrative functions. enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the
The provision merely makes explicit an application practice of law, the Integrated Bar, and legal assistance
to the underprivileged. Such rules shall provide a
of the principles of separate of powers.434 simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of
Take note of the other tasks given to SC or the the same grade, and shall not diminish, increase,
Members of SC by the Constitution: modify substantive rights. Rules of procedure of special
1. SC en banc as Presidential Electoral courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
Tribunal (art 7 §4) 6. Appoint all officials and employees of the Judiciary in
2. Chief Justice as presiding officer of the accordance with the Civil Service Law.
impeachment Court when the President is
in trial (art. 11 §3(6)). Section 6. The Supreme Court shall have
3. Chief Justice as ex officio chairman of the administrative supervision over all courts and the
JBC. (art. 8 §8(1)). personnel thereof.
4. Justices as members of Electoral
Tribunals (art. 6 §17). Section 11
xxxThe Supreme Court en banc shall have the power
V. Powers of Supreme Court 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 on the issues in
434 the case and voted thereon.
Bernas Commentary, p 991 (2003 ed).

I sweat, I bleed, I soar… 101


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

discretion and, in fourth, the title of the respondent.


A. General Power The petition for habeas corpus is a special
proceeding.437
Judicial Power (§1)
Concurrent Jurisdiction.
B. Specific Powers The Supreme Court has concurrent original
jurisdiction with Regional Trial Courts in cases
Specific Powers of the Supreme Court under affecting ambassadors, other public ministers and
Article VIII: consuls. (BP 129 § 21(2))
1. Original Jurisdiction The Supreme Court has concurrent original
2. Appellate Jurisdiction jurisdiction with the Court of Appeals in petitions for
3. Temporary Assignment of Judges certiorari, prohibition and mandamus against the
4. Change of Venue or Place of Trial Regional Trial Courts. (BP 129 § 9(1))
5. Rule-Making Power The Supreme Court has concurrent original
jurisdiction with the Court of Appeals and the
6. Appointment of Court Personnel (§5) Regional Trial Courts in petitions for certiorari,
7. Administrative Supervision of Courts (§6) prohibition and mandamus against lower courts
8. Dismissal/ Removal Powers (§11) and bodies and in petitions for quo warranto and
(Section 5(1) and (2) refer to the irreducible habeas corpus. (BP 129 §9(1), §21(2))
jurisdiction of the Supreme Court while Section 5
(3 -6) and Section 6 provide of auxiliary Principle of Judicial Hierarchy
administrative powers.) Under a judicial policy recognizing hierarchy of
courts, a higher court will not entertain direct resort
Other Powers of SC: to it unless the redress cannot be obtained in the
1. Jurisdiction over proclamation of Martial law or appropriate courts. (Santiago v. Vasquez, 217
suspension of the writ of habeas corpus; (art. 7 SCRA 167) Thus, while it is true that the issuance
§18) of a writ of prohibition under Rule 65 is within the
2. Jurisdiction over Presidential and Vice- jurisdiction of the Supreme Court, a petitioner
Presidential election contests; (art. 7 §4) cannot seek relief from the Supreme Court where
3. Jurisdiction over decision, order, or ruling of the issuance of such writ is also within the
the Constitutional Commissions. (art. 9 §7) competence of the Regional Trial Court or the
4. Supervision over JBC (art. 8 §8(1)) Court of Appeals.
A direct recourse of the Supreme Court’s original
5. Power to Punish Contempt jurisdiction to issue writs should be allowed only
when there are special and important reasons
C. Original Jurisdiction therefore, clearly and specifically set out in the
petition. (Mangahas v. Paredes, 2007)
Section 5(1). The Supreme Court has original
jurisdiction over: Q: What cases may be filed originally in the
1. Cases affecting ambassadors, other Supreme Court?
public ministers and consuls. A: Only petitions for certiorari, prohibition,
2. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus,
mandamus, quo warranto, and habeas disciplinary proceedings against members of the
corpus.435 judiciary and attorneys, and affecting
ambassadors, other public ministers and consuls
Note that under international law, diplomats and may be filed originally in the Supreme Court. (Rule
even consuls to a lesser extent, are not subject to 56, Section 1, Rules of Court)
jurisdiction of the courts of the receiving State,
save in certain cases, as when immunity is waived D. Appellate Jurisdiction
either expressly or impliedly. In such instances, the
Supreme Court can and probably should take Section 5(2). The Supreme Court has the power to
cognizance of the litigation in view of possible review, revise, reverse, modify, or affirm on appeal
international repercussions.436 or certiorari as the law or the Rules of Court may
provide, final judgments and orders of lower courts
The petitions for certiorari, mandamus, prohibition, in:
and quo warranto are special civil actions. The a. All cases in which the constitutionality or
questions raised in the first three petitions are validity of any treaty, international or
questions of jurisdiction or grave abuse of executive agreement, law, presidential
decree, proclamation, order, instruction,
435
See Rule 65, 66 and 102, Rules of Court. ordinance, or regulation is in question.
436 437
Cruz, Philippine Political Law, p. 252 (1995 ed). Cruz, Philippine Political Law, p. 252 (1995 ed).

I sweat, I bleed, I soar… 102


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

b. All cases involving the legality of any tax, In Republic v. Sandiganbayan, 2002, it was held
impost, assessment, or toll, or any penalty that the appellate jurisdiction of the Supreme Court
imposed in relation thereto. over decisions and final orders of the
c. All cases in which the jurisdiction of any Sandiganbayan is limited to questions of law. A
lower court is in issue. question of law exists when the doubt or
d. All criminal cases in which the penalty controversy concerns the correct application of law
imposed is reclusion perpetua or higher. or jurisprudence to a certain set of facts; or when
e. All cases in which only an error or the issue does not call for an examination of the
question of law is involved. probative value of the evidence presented, the
truth or falsehood of facts being admitted.
Irreducible. This appellate jurisdiction of the
Supreme Court is irreducible and may not be Section 5(2), (a) and (b) explicitly grants judicial
withdrawn from it by Congress.438 review in the Supreme Court. (Judicial Review will
be discussed in the next chapter)
Final Judgments of lower courts. It should be
noted that the appeals allowed in this section are E. Temporary Assignment of Judges
from final judgments and decrees only of “lower
courts” or judicial tribunals. Administrative Section 5(3). The Supreme Court has the power to
decisions are not included.439 assign temporarily judges of lower courts to other
stations as public interest may require. Such
The lower courts have competence to decide temporary assignment shall not exceed six months
constitutional questions. Section 5(2)(a) provides without the consent of the judge concerned.
that Supreme Court has appellate jurisdiction over
“final judgments and orders all cases in which the Rationale of the Provision. The present rule
constitutionality or validity of any treaty, bolsters the independence of the judiciary in so far
international or executive agreement, law, as it vests the power to temporarily assign judges
presidential decree, proclamation, order, of inferior courts directly in the Supreme Court and
instruction, ordinance or regulation is in question.” no longer in the executive authorities and
conditions the validity of any such assignment in
Review of Death Penalty. Section 5 requires a excess of six months upon the consent of the
mandatory review by the Supreme Court of cases transferred judge. This will minimize if not
where the penalty imposed is reclusion perpetua, altogether eliminate the pernicious practice of the
life imprisonment, or death. However, the rigodon de jeuces, or the transfer of judges at will
Constitution has not proscribed an intermediate to suit the motivations of the chief executive.442
review. To ensure utmost circumspection before
the penalty of death, reclusion perpetua or life Purpose of Transfer. Temporary assignments may
imprisonment is imposed, the Rule now is that be justified to arrange for judges with clogged
such cases must be reviewed by the Court of dockets to be assisted by their less busy
Appeals before they are elevated to the Supreme colleagues, or to provide for the replacement of the
Court.440 regular judge who may not be expected to be
Note, however, that the rule for the review of impartial in the decision of particular cases.443
decisions of lower courts imposing death or
reclusion perpetua or life imprisonment are not the Permanent Transfer. Since transfer imports
same. In case the sentence is death, there is removal from one office and since a judge enjoys
automatic review by the Court of Appeals and security of tenure, it cannot be effected without the
ultimately by the Supreme Court. This is consent of the judge concerned.444
mandatory and neither the accused nor the courts
may waive the right of appeal. In the case of the F. Change of Venue or Place of Trial
sentence of reclusion perpetua or life
imprisonment, however, although the Supreme Section 5(4). The Supreme Court has the power to
Court has jurisdiction to review them, the review is order a change of venue or place of trial to avoid a
not mandatory. Therefore review in this later cases miscarriage of justice.
may be waived and appeal may be withdrawn.441
This power is deemed to be an incidental and
inherent power of the Court. (See People v.
Gutierrez, 36 SCRA 172 (1970))
438
Cruz, Philippine Political Law, p. 255 (1995 ed).
439
Cruz, Philippine Political Law, p. 256 (1995 ed). 442
440 Cruz, Philippine Political Law, p. 259 (1995 ed).
People v. Mateo, G.R. No. 147678-87. July 7, 2004; People v. 443
Lagua, G.R. No. 170565, January 31, 2006. Cruz, Philippine Political Law, p. 259 (1995 ed).
441 444
People v. Rocha and Ramos, G.R. No. 173797, August 31, 2007. Bernas Commentary, p 967(2003 ed).

I sweat, I bleed, I soar… 103


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

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 an
Integration of the Bar existing right, then the rule deals merely with
Congress and the Rules of Court 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:
1. The protection and enforcement of Maniago v. CA, 1996
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 is
inexpensive procedure for the speedy 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
especially since, as the Supreme Court has had statute of limitations. The two-year bar under the
occasion to say, it includes the inherent authority to rule does not reduce the periods under Article 90
suspend rules when the requirement of justice of the Revised Penal Code. It is but a limitation
demand. of the right of the State to revive a criminal case
Moreover, since it is to the Supreme Court that rule against the accused after the case had been
making authority has been given, rules filed but subsequently provisionally dismissed
promulgated by special courts and quasi-judicial with the express consent of the accused. Upon
bodies are effective unless disapproved by the the lapse of the period under the new rule, the
Supreme Court. State is presumed to have abandoned or waived
its right to revive the case. The prescription

I sweat, I bleed, I soar… 104


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

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.447
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. 445 Supreme Court must not diminish, increase or
modify substantive rights.448
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.449
deceased. Such construction will result in the
diminution of the substantive rights granted by Illustrative case where retroactive application
the Civil Code.446 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 Facts: The Supreme Court ruled that in
for the settlement of the estate of the deceased, accordance with Section 60 of the
respondents, who were children of the deceased, Comprehensive Agrarian Reform Law, appeals
filed a motion asking for an allowance for their from the Special Agrarian Courts should be
support. Petitioners, who were children of the made by filing a petition for review instead of
deceased with another woman, opposed on the merely filing a notice of appeal. Petitioner filed a
grounds that petitioners were already of majority motion for reconsideration, in which it prayed that
age and under Section 3 of Rule 83, the the ruling be applied prospectively.
allowance could be granted only to minor Held: Before the case reached the Supreme
children. Court, petitioner had no authoritative guideline
Held: Article 188 of the Civil Code grants on how to appeal decision of Special Agrarian
children the right to support even beyond the age
of majority. Hence, the respondent were entitled 447
Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)
445 448
Jacinto Jimenez, Political Law Compendium 344 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)
446 449
Jacinto Jimenez, Political Law Compendium, 342 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)

I sweat, I bleed, I soar… 105


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

Courts in the light of seemingly conflicting In Re: Request for Creation of Special Division,
provisions of Section 60 and 61 of the A.M. No. 02-1-07-SC (2002): It was held that it is
Comprehensive Agrarian Reform Law, because within the competence of the Supreme Court, in
Section 61 provided that review shall be the exercise of its power to promulgate rules
governed by the Rules of Court. The Court of governing the enforcement and protection of
Appeals had rendered conflicting decisions on constitutional rights and rules governing pleading,
this precise issue. Hence, the decision of the practice and procedure in all courts, to create a
Supreme Court should be applied prospectively Special Division in the Sandiganbayan which will
because it affects substantive right. If the ruling hear and decide the plunder case of Joseph
is given retroactive application, it will prejudice Estrada.
the right of appeal of petitioner because its
pending appeals in the Court of Appeals will be Regulation of Demonstrations
dismissed on a mere technicality thereby, Facts: Petitioner applied for a permit to hold a rally
sacrificing their substantial merits.450 in from of the Justice Hall to protest the delay in the
disposition of the cases of his clients. The mayor
5. Rules Concerning the protection and refused to issue the permit on the ground that it
enforcement of constitutional rights; Rules was prohibited by the Resolution of the Supreme
Concerning pleading, practice and procedure in Court dated July 7, 1998, which prohibited rallies
courts within two hundred meters of any court building.
Petitioners argued that the Resolution amended
Power to Make Rules; Writ of Amparo. the Public Assembly Act in violation of the
The Rules on the Writ of Amparo is promulgated by separation of powers.
the Court based on its power to promulgate rules Held: The existence of the Public Assembly Act
for the protection and enforcement of constitutional does not preclude the Supreme Court from
rights. In light of the prevalence of extra legal killing promulgating rules regulating the conduct of
and enforced disappearances, the Supreme Court demonstration in the vicinity of courts to assure the
resolved to exercise for the first time its power to people of an impartial and orderly administration of
promulgate rules to protect our people’s justice as mandate by the Constitution. (In re
constitutional rights. Valmonte, 296 SCRA xi)

Writ of Amparo (1991 Bar Question) Requirement of International Agreement


a. Etymology. “Amparo” comes from Facts: The Philippines signed the Agreement
Spanish verb “amparar” meaning “to protect. establishing the World Trade Organization. The
Senate passed a resolution concurring in its
b. Nature: A writ to protect right to life, liberty ratification by the President.
and security of persons. Petitioners argued that Article 34 of the General
Provisions and Basic Principles of the Agreement
c. Section 1 of The Rule on the Writ of on Trade-Related Aspects of Intellectual Property
Amparo: “The petition for a writ of amparo is a Rights is unconstitutional. Article 34 requires
remedy available to any person whose right to members to create a disputable presumption in
life, liberty and security is violated or civil proceedings that a product shown to be
threatened with violation by unlawful act or identical to one produced with the use of a
omission of a public official or employee, or of patented process shall be deemed to have been
a private individual or entity. The writ shall obtained by illegal use of the patented process if
cover extralegal killings and enforced the product obtained by the patented process is
disappearances or threats thereof.” (Note that new or there is a substantial likelihood that the
not all constitutional rights are covered by this identical product was made with the use of the
Rule; only right to life, liberty and security) patented process but the owner of the patent could
not determine the exact process used in obtaining
Writ of Habeas Data. The writ of habeas data is a the identical product. Petitioners argued that this
remedy available to any person whose right to impaired the rule-making power of the Supreme
privacy in life, liberty or security is violated or Court.
threatened by an unlawful act or omission of a Held: Article 34 should present no problem.
public official or employee, or of a private individual Section 60 of the Patent Law provides a similar
or entity engaged in the gathering, collecting or presumption in cases of infringement of a patented
storing of data or information regarding the person, design or utility model. Article 34 does not contain
family, home and correspondence of the aggrieved an unreasonable burden as it is consistent with due
party. (Section 1, The Rule on the Habeas Data) process and the adversarial system. Since the
Philippines is signatory to most international
conventions on patents, trademarks and
copyrights, the adjustment in the rules of
450
Jacinto Jimenez, Political Law Compendium, 345 (2006 ed.)

I sweat, I bleed, I soar… 106


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

procedure will not be substantial. (Tanada v. 4. Cultivate among its members a spirit of
Angara, 272 SCRA 18)451 cordiality and brotherhood;
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
"[p]romulgate rules concerning the protection and relating thereto;
enforcement of constitutional rights, pleading, 6. Encourage and foster legal education;
practice and procedure in all courts." This includes 7. Promote a continuing program of legal research
an inherent power to suspend its own rules in in substantive and adjective law, and make
particular cases in order to do justice.452 reports and recommendations thereon; and
8. Enable the Bar to discharge its public
6. Admission to the Practice of Law responsibility effectively (In re Integration of the
Rule on Conduct of Officials. Section 90 of the Bar of the Philippines)
Local Government Code which prohibits lawyers
who are members of a local legislative body to d. In re: Atty. Marcial Edillon. In this case, Atty.
practice law is not an infringement on the power of Edillon objects to the requirement of membership
the Court to provide for rules for the practice of law. in the integrated bar as a pre-condition to the
The law must be seen not as a rule on practice of practice of law. This gave the Court the opportunity
law but as a rule on the conduct of officials to ventilate some basic notions underlying bar
intended to prevent conflict of interest. (Javellana v. integration.
DILG, 1992) 1. The practice of law is a privilege that is
subject to reasonable regulation by the
Bar Flunkers Act. After the Supreme Court has State;
declared candidates for the bar as having flunked 2. Bar integration is mandated by the
the examinations, Congress may not pass a law Constitution;
lowering the passing mark and declaring the same 3. The lawyer is not being compelled to join
candidates as having passed. This would amount the association. Passing the bar
to not just amending the rules but reversing the examination already made him a member
Court’s application of an existing rule. (In re of the bar. The only compulsion to which
Cunanan , 94 phil 534 (1954)) he is subjected is the payment of annual
dues, and this is justified by the need for
Nullification of Bar Results. In 2003, the Court elevating the quality of legal profession;
nullified the results of the exams on Commercial 4. The Constitution vests in the SC plenary
Law when it was discovered that the Bar questions powers regarding admission to the bar.
had been leaked. (Bar matter No. 1222, 2004)
e. Letter of Atty Arevalo, 2005. Payment of dues
7. Integration of the Bar is a necessary consequence of membership in the
a. Bar - refers to the collectivity of all persons Integrated Bar of the Philippines, of which no one is
whose names appear in the Roll of Attorneys. exempt. This means that the compulsory nature of
payment of dues subsists as long as one’s
b. Integration of the Philippine Bar - means the membership in the IBP remains regardless of the
official unification of the entire lawyer population of lack of practice of, or the type of practice, the
the Philippines. This requires membership and member is engaged in.453
financial support (in reasonable amount) of every
attorney as conditions sine qua non to the practice 8. Congress and the Rules of Court
of law and the retention of his name in the Roll of Bernas Primer: Rules issued by the Supreme
Attorneys of the Supreme Court. (In re Integration Court may be repealed, altered, or supplemented
of the Bar of the Philippines) by Congress because Congress has plenary
legislative power. The silence of the Constitution on
c. Purpose of an integrated Bar, in general are: the subject can only be interpreted as meaning that
1. Assist in the administration of justice; there is no intention to diminish that plenary power.
2. Foster and maintain, on the part of its In fact, RA 8974 which requires full payment before
members, high ideals of integrity, learning, the sate may exercise proprietary rights, contrary to
professional competence, public service and Rule 67 which requires a deposit, was recognized
conduct;
3. Safeguard the professional interests of its by Court in Republic v. Gingoyon, 2005. (An earlier
members; obiter dictum in Echegaray v. Sec. of Justice, 1999,
said that Congress has no power to amend Rules.

451
Jacinto Jimenez, Political Law Compendium, 347 (2006 ed.)
452
Lim et al v CA, G.R. No. 149748, November 16, 453
Letter of Atty. Cecilio Y. Arevalo, Requesting Exemptions from
2006. Payment of IBP Dues, May 9, 2005.

I sweat, I bleed, I soar… 107


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

This was repeated by Puno and Carpio in dissent Exclusive Supervision. Article VIII, Section 6
in Republic v. Gingoyon)454 exclusively vests in the Supreme Court
administrative supervision over all courts and court
Nachura (2006): Congress cannot amend the personnel, from the Presiding Justice of the Court
Rules of Court. “The 1987 Constitution took away of Appeals down to the lowest municipal trial court
the power of Congress to repeal, alter or clerk. By virtue of this power, it is only the Supreme
supplement rules concerning pleading and Court that can oversee the judges’ and court
procedure. In fine, the power to promulgate rules of personnel’s compliance with all laws, and take
pleading, practice and procedure is no longer proper administrative action against them if they
shared by this Court with Congress, more so with commit any violation thereof. No other branch of
the Executive.” Echagaray v. Secretary of Justice government may intrude into this power, without
(1999) running afoul to the doctrine of separation of
powers. (Maceda v. Vasquez)
ASM: Follow Bernas’ view. Article XVIII, Section 10
provides: “The provisions of the existing Rules of Ombudsman and SC’s Power of Supervision.
Court, judiciary acts, and procedural laws not The Ombudsman may not initiate or investigate a
inconsistent with this Constitution shall remain criminal or administrative complaint before his
operative unless amended or repealed by the office against a judge; the Ombudsman must first
Supreme Court or the Congress” indorse the case to the Supreme Court for
appropriate action. (Fuentes v. Office of
H. Appointment of Court Personnel Ombudsman, 2001)

The authority of the Supreme Court to appoint its Administrative Proceeding, Confidential.
own official and employees is another measure Administrative proceedings before the Supreme
intended to safeguard the independence of the Court are confidential in nature in order to protect
Judiciary. However, the Court’s appointing authority the respondent therein who may turn out to be
must be exercised “in accordance with the Civil innocent of the charges. (Godinez v. Alano, 1999)
Service Law.”455
According to Bernas, the power of administrative
Note that Section 5(6) empowers the Supreme supervision of the Supreme Court, includes the
Court not only to appoint its own officials and power [sitting en banc] to discipline judges of lower
employees but of the Judiciary itself. courts, or order their dismissal.458

It should also be recalled that courts may be given J. Disciplinary Powers


authority by Congress “to appoint officers lower in
rank.” (art. 7 §16) Section 11
The Members of the Supreme Court and judges of
I. Administrative Supervision of Courts lower courts shall hold office during good behavior until
they reach the age of seventy years or become
incapacitated to discharge the duties of their office. The
Strengthens Independence. Section 6 provides Supreme Court en banc shall have the power of
that the Supreme Court shall have administrative discipline judges of lower courts, or order their
supervision by the Supreme Court over all lower dismissal by a vote of a majority of the Members who
courts and the personnel thereof. It is a significant actually took part in the deliberations on the issues in
innovation towards strengthening the the case and voted thereon.
independence of the judiciary. Before 1973
Constitution, there was no constitutional provision 1. Power to Discipline
on the subject and administrative supervision over The power of the Supreme Court to discipline
the lower courts and their personnel was exercised judges of inferior courts or to order their dismissal
by the Secretary of Justice.456 The previous set-up is exclusive. It may not be vested in any other
impaired the independence of judges who tended body. Nor may Congress pass a law that judges of
to defer to the pressures and suggestions of the lower courts are removable by impeachment.459
executive department in exchange for favorable
action on their requests and administrative 2. Disciplinary Actions
problems.457
Besides removal, such other disciplinary measures
as suspension, fine and reprimand can be meted
454 out by the Supreme Court on erring judges.460
Bernas Primer at 352 (2006 ed.)
455
Bernas Commentary, p 979 (2003 ed). 458
Bernas Commentary, p 979 (2003 ed).
456
Bernas Commentary, p 979 (2003 ed). 459
Bernas Commentary, p 988 (2003 ed).
457 460
Cruz, Philippine Political Law, p. 264 (1995 ed). Cruz, Philippine Political Law, p. 267 (1995 ed).

I sweat, I bleed, I soar… 108


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

The purpose of this provision is not to subject the


3. Requirement for Disciplinary Actions Court to the President and to the Congress but
Disciplinary Action Decision simply to enable the judiciary to inform government
Dismissal of judges, Decision en banc (by about its needs. (I RECORD 510-512)465
Disbarment of a a vote of a majority of
lawyer, suspension the members who The annual report required under this provision can
of either for more actually took part in be the basis of appropriate legislation and
than 1 year or a fine the deliberations on government policies intended to improve the
exceeding 10,000 the issues in the case administration of justice and strengthen the
pesos (People v. and voted thereon) independence of judiciary.466
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
office. Partial Unconstitutionality
It is submitted that the Supreme Court alone can Judicial Review by Lower Courts
determine what good behavior is, since the SC Modalities of Constitutional Interpretation
alone can order their dismissal.461
A. Definition
5. SC Determines whether a judge has become
incapacitated Judicial review is the power of the courts to test the
The power to determine incapacity is part of the validity of governmental acts in light of their
overall administrative power which the Supreme conformity to a higher norm (e.g. the constitution.)
Court has over its members and over all the –asm
members of the judiciary.462
The power of judicial review is the Supreme Court’s
K. Contempt Powers power to declare a law, treaty, international or
executive agreement, presidential decree,
proclamation, order, instruction, ordinance, or
One of the essential powers of every court under
regulation unconstitutional. This power is explicitly
our system of government is that of punishing for
granted by Section 5(2), (a) and (b).467 Judicial
contempt persons who are guilty of disobedience
Review is an aspect of Judicial Power.468
to its orders or for disrespect to its authority. The
punishment is either imprisonment or fine.463
Theory of Judicial Review. The Constitution is the
supreme law. It was ordained by the people, the
“While it is sparingly to be used, yet the power of
ultimate source of all political authority. It confers
courts to punish for contempts is a necessary and
limited powers on the national government. x x x If
integral part of the independence of judiciary, and
the government consciously or unconsciously
is absolutely essential to the performance of the
oversteps these limitations there must be some
duties imposed on them by law. Without it they are
authority competent to hold it in control, to thwart
mere boards of arbitration, whose judgments and
its unconstitutional attempt, and thus to vindicate
decrees would only be advisory.”464
and preserve inviolate the will of the people as
expressed in the Constitution. This power the
L. Annual Report
courts exercise. This is the beginning and the end
Section 16. The Supreme Court shall, within thirty of the theory of judicial review.469
days 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
465
Judiciary Bernas Commentary, p 1000 (2003 ed).
466
Cruz, Philippine Political Law, p. 277 (1995 ed).
467
Bernas Primer at 341 (2006 ed.)
468
461 Bernas Commentary, p 937(2003 ed).
Bernas Commentary, p 987(2003 ed).
469
462
Bernas Commentary, p 988(2003 ed). Howard L. MacBain, "Some Aspects of Judicial Review," Bacon
463 Lectures on the Constitution of the United States (Boston: Boston
Sinco, Philippine Political Law, p 372 (1954ed). University Heffernan Press, 1939), pp. 376-77 cited in David v.
464
Gompers v. Buck’s Stove and Range co., 221 US 418. Arroyo.

I sweat, I bleed, I soar… 109


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

Judicial Review in Philippine Constitution. E. Requisites of Judicial Inquiry/Judicial Review


Unlike the US Constitution470 which does not (1994 Bar Question)
provide for the exercise of judicial review by their Essential Requisites
Supreme Court, the Philippine Constitution 1. There must be an actual case or controversy;
expressly recognizes judicial review in Section
The question involved must be ripe for
5(2) (a) and (b) of Article VIII of the Constitution.
adjudication.
2. The question of constitutionality must be
B. Principle of Constitutional Supremacy raised by the proper party;
Auxiliary Rules
Judicial review is not an assertion of superiority by 3. The constitutional question must be raised at
the courts over the other departments, but merely the earliest possible opportunity;
an expression of the supremacy of the 4. The decision of the constitutional question
Constitution.471 Constitutional supremacy produced must be necessary to the determination of the
judicial review, which in turn led to the accepted case itself.
role of the Court as “the ultimate interpreter of the (Read the case of Francisco v. HR and David v.
Constitution.”472 Arroyo in the original)
C. Functions of Judicial Review 1. Actual Case
1. Checking- invalidating a law or executive act
that is found to be contrary to the Constitution. Actual Case or controversy involves a conflict
2. Legitimating- upholding the validity of the law. of legal rights, an assertion of opposite legal
Rule on the Double Negative- Uses the claims susceptible of judicial determination.474
term “not unconstitutional”; the court
cannot declare a law constitutional The case must not be:
because it already enjoys a presumption of 1. Moot or academic or
constitutionality
2. Based on extra-legal or other similar
3. Symbolic473- to educate the bench and the bar consideration not cognizable by
as the controlling principles and concepts on courts of justice.475
matters of great public importance.
3. A request for advisory opinion.476
In a Separate Opinion in Francisco v. HR, Mr. 4. Hypothetical or feigned constitutional
Justice Adolf Azcuna remarked: problems
“The function of the Court is a necessary element 5. Friendly suits collusively arranged
not only of the system of checks and balances, but between parties without real adverse
also of a workable and living Constitution. For
interests477
absent an agency, or organ that can rule, with
finality, as to what the terms of the Constitution
mean, there will be uncertainty if not chaos in Moot Case. A moot case is one that ceases to
governance... This is what… Hart calls the need present a justiciable controversy by virtue of
for a Rule of Recognition in any legal system…” supervening events, so that a declaration
thereon would be of no practical use or value.
D. Who May Exercise Generally, courts decline jurisdiction over such
1. Supreme Court case or dismiss it on ground of mootness.
2. Inferior Courts
However, Courts will decide cases, otherwise
moot and academic, if:
470
The case of Marbury v. Madison established the doctrine of
1. There is a grave violation of the
judicial review as a core legal principle in American constitutional Constitution;
system: “So if a law be in opposition to the constitution; of both the 2. The exceptional character of the situation
law and the constitution apply to a particular case, so that the court and the paramount public interest is
must either decide that case conformably to the law, disregarding the involved
constitution; or conformably to the constitution, disregarding the law;
the court must determine which of these conflicting rules governs the 3. When the constitutional issue raised
case. This is the very essence of judicial duty.” requires formulation of controlling
471
Angara v. Electoral Commission, 63 Phil 139.
472
See Cooper v. Aaron, 358 US 1 (1956) 474
Cruz, Philippine Political Law, p. 241 (1995 ed).
473
“The Court also has the duty to formulate guiding and 475
Cruz, Philippine Political Law, p. 241 (1995 ed); See Cawaling v.
controlling constitutional principles, precepts, doctrines, or COMELEC, 368 SCRA 453)
rules. It has the symbolic function of educating bench and bar 476
Cruz, Philippine Political Law, p. 242 (1995 ed).
on the extent of protection given by constitutional guarantees.” 477
(Salonga v. Pano, 134 SCRA 438, 1985) Bernas Commentary, p 938(2003 ed).

I sweat, I bleed, I soar… 110


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

principles to guide the bench, the bar, and 1. Cases of transcendental importance
the public; and or of paramount public interest or
4. The case is capable of repetition yet involving an issue of overarching
evading review. (Province of Batangas vs. significance.
Romulo, 429 SCRA 736; David v. Arroyo 2. Cases of Proclamation of martial law
(2006) Quizon v. Comelec, G.R. No. and suspension of the privilege of the
177927, February 15, 2008.) writ of habeas corpus where any
citizen may challenge the
The requirement of actual controversy proclamation of suspension. (art.7
encompasses concepts such as ripeness, §18)
standing, and the prohibition against advisory 3. The right to information on matters of
judicial rulings (BP Chemicals v. UCC, 4 F.3d public concern and the right to access
975) to public documents has been
recognized as accruing to mere
Ripeness Doctrine. The requirement that a citizenship. (Legaspi v. CSC, 150
case be ripe for judgment before a court will SCRA 530 (1987)
decide the controversy. Ripeness refers to 4. Facial Challenge (?)
readiness for adjudication,
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Rationale. To prevent the courts, through
premature adjudication, from entangling REQUISITES of standing:
themselves in abstract disagreements. A citizen can raise a constitutional question
only when:
When Not Ripe. A claim is not ripe for
adjudication if it rests upon contingent future 1. Injury: He can show that he has
events that may not occur as anticipated, or personally suffered some actual or
indeed may not occur at all.478 threatened injury because of the
allegedly illegal conduct of the
Ripeness and Standing. government;
A simple description of the requirements of 2. Causation: The injury is fairly
standing and ripeness is found in the words of traceable to the challenged action;
Justice Stone in Nashville v. Wallace. In that and
opinion he referred to: “valuable legal rights… 3. Redressability: A favorable action
threatened with imminent invasion.” The will likely redress the injury.
valuable legal rights constitute the standing (Francisco v. Fernando GR 166501,
and the threat of imminent invasion 2006)
constitute the ripeness.479
In a public suit, where the plaintiff asserts a
2. Standing/Proper Party (1992, 1995 Bar public right in assailing an allegedly illegal
Question) official action, our Court adopted the “direct
Proper Party- A proper party is one who has injury test” in our jurisdiction. (David v. Arroyo)
sustained or is in immediate danger of
sustaining an injury in result of the act Direct Injury Test: The persons who impugn
complained of.480 the validity of a statute must have a ”personal
and substantial interest in the case such
Locus Standi refers to the right of that he has sustained or will sustain, direct
appearance in a court of justice on a given injury as a result. (David v. Arroyo) (See
question. People v. Vera, 65 Phil 58, 89 (1937)).

General Rule: By way of summary, the following rules may be


Direct Interest Test: The persons who culled from the cases decided by the Supreme
impugn the validity of a statute must have a Court. Taxpayers, voters, concerned citizens,
”personal and substantial interest in the case and legislators may be accorded standing to
such that he has sustained or will sustain, sue, provided that the following requirements
direct injury as a result. are met:
Exceptions: 1. the cases involve constitutional issues
478 2. for taxpayers, there must be a claim of
Texas v. United States, 523 U.S. 296, 300 (1998). illegal disbursement of public funds or that
479
Jerre S. Williams, Constitutional Analysis 16, (1979). the tax measure is unconstitutional;
480
Ex Parte Levitt, 303 US 633; People v. Vera 65 Phil 58, 89
(1937).

I sweat, I bleed, I soar… 111


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

3. for voters, there must be a showing of that deforestation has resulted in damage to the
environment. The Secretary of argued that
obvious interest in the validity of the petitioners has no cause of action.
election law in question; Held: SC said that Petitioners have a right to a
4. for concerned citizens, there must be a sound environment, this is incorporated in Section
showing that the issues raised are of 16 of Article II.
SC also said that Petitioners have personality to sue
transcendental importance which must be
based on the concept of intergenerational
settled early; responsibility insofar as the right to a balanced and
5. for legislators, there must be a claim that healthful ecology is concerned. “We find no difficulty
the official action complained of infringes in ruling that they can, for themselves, for others of
upon their prerogatives as legislators their generation and for the succeeding generation.
Their personality to sue in behalf of the succeeding
[David v. Arroyo G.R. No. 171396 (2006)]
generations can only be based on the concept of
intergenerational responsibility insofar as the right to
Illustrative Cases showing existence of a balanced ecology is concerned.” (Oposa v.
standing: Factoran, 1993)

Facts: Petitioners filed a case as taxpayers Illustrative Cases showing absence of


questioning the validity of the contract between standing:
DOTC and respondent by virtue of which respondent
agreed to build and lease to the DOTC a light Facts: Upon authorization of the President, the
railway transit system. Respondent claimed that PCGG ordered the sale at public auction of paintings
petitioners had no standing to file the action. by old masters and silverware alleged to be illgotten
Held: Taxpayers may file action questioning wealth of former President Marcos, his relatives, and
contracts entered into by government on the ground friends. Petitioners, who were Filipino citizens,
that the contract is in contravention of the law. (Tatad taxpayers, and artist, filed a petition to restrain the
v. Garcia, 243 SCRA 436)481 auction.
Held: Petitioners have no standing to restrain the
Facts: Petitioners who were Filipino citizens and public auction. The paintings were donated by
taxpayers, questioned the constitutionality of the private persons to the MMA who owns them. The
IPRA on the ground that it deprived the State of pieces of silverware were given to the Marcos
ownership over lands of the public domain and the couple as gifts on their silver wedding anniversary.
natural resources in them in violation of Section 2, Since the petitioners are not the owners of the
Article XII of the Constitution. paintings and the silverware, they do not possess
Held: As, citizens, petitioners possess the public any right to question their dispositions. (Joya v.
right to ensure that the national patrimony is not PCGG, 225 SCRA 586)484
alienated and diminished in violation of the
Constitution. Since the government holds it for the Facts: Petitioner filed a petition in his capacity as a
benefit of the Filipinos, a citizen had sufficient taxpayer questioning the constitutionality of the
interest to maintain a suit to ensure that any grant of creation of 70 positions for presidential advisers on
concession covering the national patrimony strictly the ground that the President did not have the power
complies with the constitutional requirements. to create these positions.
In addition, the IPRA appropriate funds. Thus, it is a Held: Petitioner has not proven that he has
valid subject of a taxpayer’s suit. (Cruz v. Secretary sustained any injury as a result of the appointment
of Environment and Natural Resources, 347 SCRA of the presidential advisers. (Gonzales v. Narvasa,
128)482 337 SCRA 437)485

Facts: Petitioner, a senator, questioned the Facts: In view of the increase in violent crimes in
constitutionality of Administrative Order No. 308 Metropolitan Manila, the President ordered the PNP
which provided for the establishment of a national and the Philippine Marines to conduct joint visibility
computerized identification reference system. patrols for the purpose of crime prevention and
Petitioner contends that the AO usurps legislative suppression. Invoking its responsibility to uphold the
power. The government questioned his standing to rule of law, the Integrated Bar of the Philippines
file the case. questioned the validity of the order.
Held: As a senator, petitioner is possessed of the Held: the mere invocation of the IBP of the
requisite standing to bring suit raisin the issue that Philippines of its duty to preserve the rule of law is
the issuance of AO 308 is a usurpation of legislative not sufficient to clothe it with standing in this case.
power. (Ople v. Torres, 293 SCRA 141)483 This is too general an interest which is shared by the
whole citizenry. The IBP has not shown any specific
Facts: Petitioners, who are minors, filed a case to injury it has suffered or may suffer by virtue of the
compel the Secretary of Environment and Natural questioned order. The IBP projects as injurious the
Resources to cancel the timber license agreements militarization of law enforcement which might
and to desist from issuing new ones on the ground threaten democratic institutions. The presumed

481
Jacinto Jimenez, Political Law Compendium, 333 (2006 ed.)
482 484
Jacinto Jimenez, Political Law Compendium, 334 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 337 (2006 ed.)
483 485
Jacinto Jimenez, Political Law Compendium, 336 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 338 (2006 ed.)

I sweat, I bleed, I soar… 112


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

injury is highly speculative. (IBP v. Zamora, 338 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx


SCRA 81)486
Bernas: In sum, it may be said that the
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx concept of locus standi as it exists in Philippine
jurisprudence now has departed from the
Transcendental Importance Being a mere rigorous American concept.489
procedural technicality, the requirement of
locus standi may be waived by the Court in the 3. Earliest Opportunity
exercise of its discretion. Thus, the Court has
adopted a rule that even where the petitioners
General Rule: Constitutional question must be
have failed to show direct injury, they have
raised at the earliest possible opportunity, such
been allowed to sue under the principle of
that if it is not raised in the pleadings, it cannot
"transcendental importance." [David v.
be considered at the trial, and, if not
Arroyo G.R. No. 171396 (2006)]
considered in trial, cannot be considered on
appeal.
When an Issue Considered of
Transcendental Importance:
Exceptions:
An issue is of transcendental importance
1. In criminal cases, the constitutional
because of the following:
question can be raised at any time in
(1) the character of the funds or other assets
the discretion of the court.
involved in the case;
2. In civil cases, the constitutional
(2) the presence of a clear disregard of a question can be raised at any stage if
constitutional or statutory prohibition by an it is necessary to the determination of
instrumentality of the government; and the case itself.
(3) the lack of any other party with a more 3. In every case, except where there is
direct and specific interest in raising the estoppel, the constitutional question
question. (Francisco vs. House of may be raised at any stage if it
Representatives, 415 SCRA 44; Senate v. involves jurisdiction of the court.490
Ermita G.R. No. 169777 (2006))
4. Necessity/ Lis Mota
Facial Challenge487.
The established rule is that a party can Rule: The Court will not touch the issue of
question the validity of a statute only if, as unconstitutionality unless it really is
applied to him, it is unconstitutional. The unavoidable or is the very lis mota.491
exception is the so-called “facial challenge.”
But the only time a facial challenge to a statute Reason: The reason why courts will as much
is allowed is when it operates in the area of as possible avoid the decision of a
freedom of expression. In such instance, the constitutional question can be traced to the
“overbreadth doctrine” permits a party to doctrine of separation of powers which enjoins
challenge to a statute even though, as applied upon each department a proper respect for the
to him, it is not unconstitutional, but it might be acts of the other departments. The theory is
if applied to others not before the Court whose that, as the joint act of the legislative and
activities are constitutionally protected. executive authorities, a law is supposed to
Invalidation of the statute “on its face”, rather have been carefully studied and determined to
than “as applied”, is permitted in the interest of be constitutional before it was finally enacted.
preventing a “chilling effect” on freedom of Hence, as long as there is some other basis
expression (Justice Mendoza’s concurring that can be used by the courts for its decision,
opinion in Cruz v. DENR, G.R. No. 135395, the constitutionality of the challenged law will
December 06, 2000) A facial challenge to a not be touched and the case will be decided
legislative act is the most difficult challenge to on other available grounds.492
mount successfully since the challenge must
establish that no set of circumstances exists Motu Propio Exercise of Judicial Review.
under which the act would be valid. (Estrada v. While courts will not ordinarily pass upon
Sandiganbayan, G.R. No. 148560, November
19, 2001)488 488
Antonio B. Nachura, Outline/Reviewer in Political Law 23 (2006
ed.)
489
486 Bernas Commentary, p 949(2003 ed).
Jacinto Jimenez, Political Law Compendium, 339 (2006 ed.) 490
487 Cruz, Philippine Political Law, p. 247 (1995 ed).
Facial Challenge is a manner of challenging a statute in court, in 491
which the plaintiff alleges that the statute is always, and under all Bernas Commentary, p 952(2003 ed).
492
circumstances, unconstitutional, and therefore void. Cruz, Philippine Political Law, p. 247 (1995 ed).

I sweat, I bleed, I soar… 113


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

constitutional questions which are not raised in wisdom, not legality, of a particular measure.
the pleadings, a court is not precluded from (Tanada v. Cuenco)
inquiring into its own jurisdiction or be
compelled to enter a judgment that it lacks 3. Guidelines for determining whether a
jurisdiction to enter. Since a court may question is political.
determine whether or not it has jurisdiction, it Textual Kind
necessarily follows that it can inquire into the 1. A textually demonstrable constitutional
constitutionality of a statute on which its commitment of the issue to a political
jurisdiction depends. (Fabian v. Desierto, 295 department;
SCRA 470)493 Functional Kind
2. Lack of judicially discoverable and
F. Political Questions (1995 Bar Question)
manageable standards for resolving it;
Justiciable v. Political Question
Definition of Political Question 3. Impossibility of deciding a case
Guidelines (Baker v. Carr) without an initial determination of a
Justiciable v. Political kind clearly for non-judicial discretion;
Suspension of Writ and Proclamation of ML (Baker v. Carr, 369 US 186 (1962))496
Calling Our Power of the President Prudential Type
Impeachment of a Supreme Court Justice 4. Impossibility of a court’s undertaking
independent resolution without expressing
1. Justiciable v. Political Questions lack of the respect due coordinate
branches of the government;
The distinction between justiciable and political
5. An unusual need for unquestioning
questions can perhaps best be illustrated by the
adherence to a political decision already
suspension or expulsion of a member of Congress,
made;
which must be based upon the ground of
“disorderly behavior” and concurred in by at least 6. Potentiality of embarrassment from
2/3 of all his colleagues. The determination of what multifarious pronouncements by various
constitutes disorderly behavior is a political departments. (Baker v. Carr, 369 US 186
question and therefore not cognizable by the court; (1962)
but the disciplinary measure may nonetheless be (Bernas submits that the Grave Abuse Clause
disauthorized if it was supported by less than the has eliminated the prudential type of political
required vote. The latter issue, dealing as it does questions from Philippine jurisprudence.497
with a procedural rule the interpretation of which Hence, the question is not political even there
calls only for mathematical computation, is a is an “unusual need for questioning adherence
justiciable question.494 to a political decision already made; or the
potentiality of embarrassment from
2. Political Questions, Definition multifarious pronouncements by various
departments on one question.”498)
Political questions are those questions which under
the Constitution are: Examples of Textual Kind499:
1. To be decided by the people in their 1. Alejandrino v. Quezon 26 Phil 83 (1924) :
sovereign capacity, or The SC through Justice Malcolm held,
“Mandamus will not lie agasint the legislative
2. In regard to which full discretionary body, its members, or its officers, to compel
authority has been delegated to the
the performance of duties purely legislative in
legislative or executive branch of the
their character which therefore pertain to their
government.495 (Tanada v. Cuenco, 1965)
legislative functions and over which they have
exclusive control.”
Political questions connotes “questions of policy.”
It is concerned with issues dependent upon the 2. Osmena v. Pendatun 109 Phil 863 (1960):
The SC refused to interpose itself in the matter
493
of suspension of Osmena Jr., for a speech
Jacinto Jimenez, Political Law Compendium, 330 (2006 ed.) delivered on the floor of Congress. Whether he
494 committed “disorderly behavior” was
Cruz, Philippine Political Law, p. 78(1995 ed).
495
Cruz: Where the matter falls under the discretion of another something in regard to which full discretionary
department or especially the people themselves, the decision reached authority had been given to the legislature.
is in the category of a political question and consequently may not be
496
the subject of judicial review. Bernas Commentary, p 959(2003 ed); Bernas Primer at 348 (2006
Accordingly, considerations affecting the wisdom, efficacy or ed.)
practicability of a law should come under the exclusive jurisdiction 497
See Bernas Commentary, p 959 (2003 ed)
of Congress. So too, is the interpretation of certain provisions of the 498
Bernas Primer at 348 (2006 ed.)
Constitution, such as the phrase “other high crimes” as ground for 499
impeachment. Bernas Commentary, p 954(2003 ed).

I sweat, I bleed, I soar… 114


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

3. Arroyo v. De Venecia, 1997: The issue in this privilege of writ of habeas corpus, not subject to
case was whether the Court could intervene in judicial review.503
a case where the House of Representatives But, while the Court considered the President’s
was said to have disregarded its own rule. The “calling-out” power as a discretionary power solely
Court said it could not because the matter of vested in his wisdom and that it cannot be called
formulating rules have been textually conferred upon to overrule the President’s wisdom or
by the Constitution on Congress itself. Hence, substitute its own, it stressed that “this does not
provided that no violation of a constitutional prevent an examination of whether such power
provisions or injury to private rights was was exercised within permissible constitutional
involved, the Court was without authority to limits or whether it was exercised in a manner
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 Kind500: upon the petitioner to show that the President’s
decision is totally bereft of factual basis” and that if
1. Tobias v. Abalos, 1994; Mariano v. he fails, by way of proof, to support his assertion,
COMELEC, 1995” Apportionment of then “this Court cannot undertake an independent
representative districts is not a political investigation beyond the pleadings. (IBP v.
question because there acre constitutional Zamora cited in David v. Arroyo)
rules governing apportionment.
2. Daza v. Singson, 1989; Coseteng v. Mitra, 6. Impeachment Case against a Supreme Court
1990; Guingona v. Gonzales, 1992: The Justice.
Court intervened in the manner of forming the
Commission on Appointments. Facts: On June 2, 2003, former President Joseph
3. Bondoc v. Pineda: The Court invalidated the Estrada filed an impeachment cases against the Chief
Justice and seven Associate Justices of the Supreme
expulsion of a member of the House Electoral Court . The complaint was endorsed by three
Tribunal. congressmen and referred to the Committee on Justice of
(All these were done by the Court because it found the House of Representatives. On October 22, 2003, the
applicable legal standards.) Committee on Justice voted to dismiss the complaint for
being insufficient in substance. The Committee on Justice
4. Grave Abuse Clause and Political Questions had not yet submitted its report to the House of
Representatives.
On October 23, 2003, two congressmen filed a complaint
Again, the ‘broadened concept’ of judicial power is a complaint for impeachment against the Chief Justice in
not meant to do away with the political questions connection with the disbursement against the Chief
doctrine itself. The concept must sometimes yield Justice in connection with the disbursement of the
to separation of powers, to the doctrine on “political Judiciary Development Fund. The complaint was
questions” or to the “enrolled bill” rule.501 (1995 Bar accompanied by a resolution of
Question) endorsement/impeachment was accompanied by a
resolution of endorsement/impeachment signed by at
least one-third of the congressmen.
5. Suspension of the Writ of HC and
Several petitions were filed to prevent further proceedings
Proclamation of Martial Law tin the impeachment case on the ground that the
The action of the President and the Congress shall Constitution prohibits the initiation of an impeachment
be subject to review by the Supreme Court which proceeding against the same official more than once the
shall have the authority to determine the sufficiency same period of one year. Petitioners plead for the SC
of the factual basis of such action. This matter is no to exercise the power of judicial review to determine
longer considered a political question.502 the validity of the second impeachment complaint.

The House of Representatives contend that


6. President’s action in calling out the armed impeachment is a political action and is beyond the
forces reach of judicial review. Respondents Speaker De
It may be gathered from the broad grant of power Venecia, et. al. and intervenor Senator Pimentel raise the
that the actual use to which the President puts the novel argument that the Constitution has excluded
armed forces, is unlike the suspension of the impeachment proceedings from the coverage of judicial
review. Briefly stated, it is the position of respondents
Speaker De Venecia et. al. that impeachment is a political
action which cannot assume a judicial character. Hence,
500
any question, issue or incident arising at any stage of the
Bernas Commentary, p 957(2003 ed). impeachment proceeding is beyond the reach of judicial
501
See Bernas Commentary, p 919-920 (2003 ed).
502 503
Cruz, Philippine Political Law, p. 214 (1995 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
ARIS S. MANGUERA

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.”505
of judicial review over it; and (2) necessarily includes the
Senate's power to determine constitutional questions
relative to impeachment proceedings. They contend that H. Partial Unconstitutionality
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 to powers, courts hesitate to declare a law totally
try impeachments and to try crimes; it disturbs the system unconstitutional and as long as it is possible, will
of checks and balances, under which impeachment is the salvage the valid portions thereof in order to give
only legislative check on the judiciary; and it would create
effect to the legislative will.506
a lack of finality and difficulty in fashioning relief

Held: That granted to the Philippine Supreme Court and Requisites of Partial Unconstitutionality:
lower courts, as expressly provided for in the Constitution, 1. The Legislature must be willing to retain the
is not just a power but also a duty, and it was given an valid portion(s).507
expanded definition to include the power to correct any
2. The valid portion can stand independently as
grave abuse of discretion on the part of any government
branch or instrumentality. that granted to the Philippine law.
Supreme Court and lower courts, as expressly provided
for in the Constitution, is not just a power but also a duty, I. Judicial Review by Lower Courts
and it was given an expanded definition to include the
power to correct any grave abuse of discretion on the part Legal Bases of lower courts’ power of judicial
of any government branch or instrumentality. review:
The Constitution provides for several limitations to the
exercise of the power of the House of Representatives 1. Article VIII, Section 1. Since the power of
over impeachment proceedings. These limitations include judicial review flows from judicial power
the one-year bar on the impeachment of the same official. and since inferior courts are possessed of
It is well within the power of the Supreme Court to inquire judicial power, it may be fairly inferred that
whether Congress committed a violation of the the power of judicial review is not an
Constitution in the exercise of its functions. (Francisco v.
House of Representatives, 415 SCRA 44)
exclusive power of the Supreme Court.
x-----x 2. Article VII, Section 5(2). This same
Respondents are also of the view that judicial review of conclusion may be inferred from Article
impeachments undermines their finality and may also VIII, Section 5(2), which confers on the
lead to conflicts between Congress and the judiciary. Supreme Court appellate jurisdiction over
Thus, they call upon this Court to exercise judicial
statesmanship on the principle that "whenever possible,
judgments and decrees of lower courts in
the Court should defer to the judgment of the people certain cases.
expressed legislatively, recognizing full well the perils of
judicial willfulness and pride Note: While a declaration of unconstitutionality
Held: “Did not the people also express their will when made by the Supreme Court constitutes a
they instituted the safeguards in the Constitution? This precedent binding on all, a similar decision of an
shows that the Constitution did not intend to leave the inferior court binds only the parties in the case.508
matter of impeachment to the sole discretion of Congress.
Instead, it provided for certain well-defined limits, or in the
language of Baker v. Carr,57 "judicially discoverable J. Modalities of Constitutional Interpretation
standards" for determining the validity of the exercise of
such discretion, through the power of judicial review.”
1. Historical- Analyzing the intention of the
framers and the Constitution and the
G. Effect of Declaration of Unconstitutionality circumstances of its ratification.
2. Textual- Reading the language of the
Orthodox View: An unconstitutional act is not a Constitution as the man on the street would.
law; it confers no rights; it imposes no duties; it 3. Structural- Drawing inferences from the
affords no protection; it creates no office; it is architecture of the three-cornered power
inoperative, as if it had not been passed at all.504 relationships.
“When courts declare a law to inconsistent with the
Constitution, the former shall be void and the latter 505
Chicot County Drainage Dist. V. Baxter States Bank 308 US 371.
shall govern.” (Article 7 of the New Civil Code) 506
Cruz, Philippine Political Law, p. 251 (1995 ed); See Senate v.
Ermita.
Modern View: Certain legal effects of the statute 507
Usually shown by the presence of separability clause. But even
prior to its declaration of unconstitutionality may be
without such separability clause, it has been held that if the valid
recognized. “The actual existence of a statute prior portion is so far independent of the invalid portion, it may be fair to
to such a determination of constitutionality is an presume that the legislature would have enacted it by itself if they
had supposed that they could constitutionally do so.
504 508
See Norton v. Shelby County, 118 US 425. Bernas Commentary, p 964 (2003 ed).

I sweat, I bleed, I soar… 116


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

4. Doctrinal- Rely on established precedents (4) Despite the expiration of the applicable mandatory
period, the court, without prejudice to such
5. Ethical- Seeks to interpret the Filipino moral responsibility as may have been incurred in
commitments that are embedded in the consequence thereof, shall decide or resolve the case
constitutional document. or matter submitted thereto for determination, without
6. Prudential- Weighing and comparing the further delay.
costs and benefits that might be found in
conflicting rules.509 1. “In Consulta”510
The conclusions of the Supreme Court in any case
VII. Deciding a Case submitted to it for decision en banc or in division
shall be reached in consultation before the case is
Process of Decision Making
assigned to a Member for the writing of the opinion
Cases Decided En Banc
of the Court. (Section 13)
Cases Decided in Division
2. Certification of Consultation and Assignment
A. Process of Decision Making
A certification as regards consultation and
In Consulta
assignment signed by the Chief Justice shall be
Certification of Consultation
issued and a copy thereof attached to the record of
Explanation on Abstention etc.
the case and served upon the parties. (Section 13)
Statement of Facts and the Law
Denial of MR or Petition for Review
Purpose. The purpose of certification is to ensure
Decisions of the Court
the implementation of the constitutional
Period for Decision
requirement that decisions of the Supreme Court
Certification and Explanation
are reached after consultation with members of the
court sitting en banc or in division before the case
Section 13. The conclusions of the Supreme Court in
is assigned to a member thereof for decision-
any case submitted to it for decision en banc or in
division shall be reached in consultation before the writing. (Consing v. CA, 1989)
case is assigned to a Member for the writing of the The certification by the Chief Justice that he has
opinion of the Court. A certification to this effect signed assigned the case to a Justice for writing the
by the Chief Justice shall be issued and a copy thereof opinion will not expose such Justice to pressure
attached to the record of the case and served upon the since the certification will not identify the Justice.511
parties. Any Members who took no part, or dissented,
or abstained from a decision or resolution must state Effect of Absence of Certification. The absence
the reason therefor. The same requirements shall be
of the certification would not necessarily mean that
observed by all lower collegiate courts.
the case submitted for decision had not been
reached in consultation before being assigned to
Section 14. No decision shall be rendered by any court one member for writing of the opinion of the Court
without expressing therein clearly and distinctly the since the regular performance of duty is presumed.
facts and the law on which it is based. No petition for The lack of certification at the end of the decision
review or motion for reconsideration of a decision of would only serve as evidence of failure to observe
the court shall be refused due course or denied without
stating the legal basis therefor.
certification requirement and may be basis for
holding the official responsible for the omission to
account therefore. Such absence of certification
Section 15. (1) All cases or matters filed after the
would not have the effect of invalidating the
effectivity of this Constitution must be decided or
resolved within twenty-four months from date of decision.512
submission for the Supreme Court, and, unless
reduced by the Supreme Court, twelve months for all Minute Resolution. Minute resolutions need not
lower collegiate courts, and three months for all other be signed by the members of the Court who took
lower courts. part in the deliberations of a case nor do they
(2) A case or matter shall be deemed submitted for require the certification of the Chief Justice.
decision or resolution upon the filing of the last (Borromeo v. CA, 1990)
pleading, brief, or memorandum required by the Rules
of Court or by the court itself.
(3) Upon the expiration of the corresponding period, a 3. Explanation on Abstention etc.
certification to this effect signed by the Chief Justice or Any Member who:
the presiding judge shall forthwith be issued and a 1. Took no part, or
copy thereof attached to the record of the case or
matter, and served upon the parties. The certification 2. Dissented, or
shall state why a decision or resolution has not been
rendered or issued within said period. 510
After deliberations by the group.
511
Bernas Primer at 361 (2006 ed.)
509 512
Bernas Commentary, p 964 (2003 ed). Bernas Primer at 362 (2006 ed.)

I sweat, I bleed, I soar… 117


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

3. Abstained Supreme Court. (Fransisco v. Permskul,


from a decision or resolution must state the reason 1989)
therefore (Section 13)
Where Applicable
The reason for the required explanation is to The constitutional requirement (Section 14, 1st
encourage participation.513 paragraph) that a decision must express
clearly and distinctly the facts and law on
4. Statement of Facts and the Law which it is based as referring only to
decisions516.
Rule
Resolutions disposing of petitions fall under
Purpose of Requirement
the constitutional provision (Section 14, 2nd
Where Applicable
paragraph) which states that “no petition for
Where Not Applicable
review…shall be refused due course… without
Illustration of Sufficient Compliance
stating the legal basis therefore.” (Borromeo v.
Illustration of Insufficient Compliance
CA) 517
Rule
Where not Applicable
No decision shall be rendered by any court
It has been held that the provision is not
without expressing therein clearly and
applicable to:
distinctly the facts and the law on which it is
based. (Section 14) 1. Decision of the COMELEC518;
2. Decision of military tribunals which are
A decision need not be a complete recital of not courts of justice.519
the evidence presented. So long as the factual
and legal basis are clearly and distinctly set
3. Mere orders are not covered since they
dispose of only incidents of the case,
forth supporting the conclusions drawn
such as postponements of the trial. The
therefrom, the decision arrived at is valid.
only exception is an order of dismissal on
However, it is imperative that the decision not
the merits520
simply be limited to the dispositive portion but
4. This requirement does not apply to a
must state the nature of the case, summarize
minute resolution dismissing a petition for
the facts with reference to the record, and
habeas corpus, certiorari and mandamus,
contain a statement of applicable laws and
provided a legal basis is given therein.
jurisprudence and the tribunal’s statement and
(Mendoza v. CFI 66 SCRA 96)
conclusions on the case.514
5. Neither will it apply to administrative
cases. (Prudential Bank v. Castro, 158
Requirement, not jurisdictional. Although
SCRA 646)
the 1st paragraph of Section 14 is worded in
mandatory language, it is nonetheless merely
Illustrative Cases of Sufficient Compliance:
directory. It has been held that the Facts: The Court of Appeals affirmed the conviction
“requirement does not go to the jurisdiction of of petitioner for estafa. Petitioner argued that the
the court”515 (1989 Bar Question) decision did not comply with the Constitution
because instead of making its own finding of facts,
Purpose the Court of Appeals adopted the statement of facts
To inform the person reading the decision, and in the brief filed by the Solicitor General.
especially the parties, of how it was reached Held: There is no prohibition against court’s
by the court after consideration of the pertinent adoption of the narration of facts made in the brief
instead of rewriting them in its own words.
facts and examination of applicable laws. (Hernandez v. CA, 228 SCRA 429)521
There are various reasons for this:
1. To assure the parties that the judge Memorandum Decisions.
studied the case; The rule remains that the constitutional mandate
2. To give the losing party opportunity to saying that “no decision shall be rendered by any
analyze the decision and possibly court without expressing therein clearly and distinctly
appeal or, alternatively, convince the the facts and the law on which it is based,” does not
losing party to accept the decision in 516
Decision is described as a judgment rendered after the
good grace;
presentation of proof or on the basis of stipulation of facts. (Cruz,
3. To enrich the body of case law, Philippine Political Law, p. 269 (1995 ed))
especially if the decision is from the 517
Bernas Primer at 362 (2006 ed.)
518
513 Nagca v. COMELEC, 112 SCRA 270 (1982).
Bernas Primer at 361 (2006 ed.) 519
514
Cruz, Philippine Political Law, p. 273 (1995 ed).
Antonio B. Nachura, Outline/Reviewer in Political Law 295 520
(2006 ed.) Cruz, Philippine Political Law, p. 269 (1995 ed).
515 521
Cruz, Philippine Political Law, p. 269 (1995 ed). Jacinto Jimenez, Political Law Compendium, 350 (2006 ed.)

I sweat, I bleed, I soar… 118


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

preclude the validity of “memorandum decisions,” Facts: Petitioners sued respondents for damages
which adopt by reference the findings of fact and on the ground that they were not able to take their
conclusions of law contained in the decisions of flight although the travel agent who sold them the
inferior tribunals. This rule has been justified on the plane tickets confirmed their reservations. The
grounds of expediency, practicality, convenience and decision of the trial court summarized the evidence
docket status of our courts.522 (Solid Homes v. for the parties and then held that respondent, the
Laserna, 2008) travel agent, and the sub-agent should be held
jointly and severally liable for damages on the basis
Memorandum decisions can also speed up the of the facts.
judicial process, a desirable thing and a concern of Held: The decision did not distinctly and clearly set
the Constitution itself. Where a memorandum forth the factual and legal bases for holding
decision is used, the decision adopted by reference respondents jointly and severally liable. (Yee Eng
must be attached to the Memorandum for easy Chong v. Pan American World Airways Inc., 328
reference. Nonetheless, the Memorandum decision SCRA 717)
should be used sparingly and used only where the
facts as in the main are accepted by both parties Facts: The MTC convicted petitioner of unfair
and in simple litigations only. (Fransisco v. Permskul, competition. Petitioner appealed to the RTC. The
1989) RTC affirmed his conviction. The RTC stated in this
decision that it found no cogent reason to disturb the
Illustrative Cases of Insufficient Compliance findings of fact of MTC.
In Dizon v. Judge Lopez, 1997, the decision, which Held: The decision of the RTC fell short of the
consisted only of the dispositve portion constitutional requirement. The decision in question
(denominated a sin perjuicio523 judgment) was held should be struck down as a nullity. (Yao v. CA, 344
invalid. SCRA 202)

Facts: Respondents sold the same property to two 4. Statement of Legal Basis for Denial of MR or
different buyers. Petitioners, the first buyers, filed a Petition for Review
case to annul the title of the second buyer. The lower No petition for review or motion for reconsideration
court rendered a decision dismissing the complaint.
of a decision of the court shall be refused due
The decision stated that the plaintiffs failed to prove
their case and there was no sufficient proof of bad course or denied without stating the legal basis
faith on the part of the second buyer. therefor. (Section 14)
Held: The decision does not comply with the
requirement under the Constitution that it should Resolutions disposing of petitions fall under the
contain a clear and distinct statement of facts. It constitutional provision (Section 14, 2nd paragraph)
contained conclusions without stating the facts which states that “no petition for review…shall be
which served as their basis. (Valdez v. CA, 194 refused due course… without stating the legal
SCRA 360)
basis therefore.”
Facts: Petitioners filed an action to annul the
foreclosure sale of the property mortgaged in favor When the Court, after deliberating on a petition and
of respondent. After petitioners had rested their any subsequent pleadings, manifestations,
case, respondent filed a demurrer to the evidence. comments, or motion decides to deny due course
The trial court issued an order dismissing the case to the petition and states that the questions raised
on the ground that the evidence showed that the are factual or no reversible error or if the
sale was in complete accord with the requirements respondent court’s decision is shown or for some
of Section 3 of Act No. 3135.
other legal basis stated in the resolution, there is
Held: The order violates the constitutional
requirement. The order did not discuss what the sufficient compliance with the constitutional
evidence was or why the legal requirements had requirement. (Borromeo v. CA)
been observed. (Nicos Industrial Corporation v. CA,
206 SCRA 122) Illustrative Cases:
The Court of Appeals denied the petitioner’s motion for
Facts: The RTC convicted the accused of murder. reconsideration in this wise: “Evidently, the motion poses
The decision contained no findings of fact in regard nothing new. The points and arguments raised by the
to the commission of the crime and simply contained movants have been considered an passed upon in the
the conclusion that the prosecution had sufficiently decision sought to be reconsidered. Thus, we find no
established the guilt of the accused of the crime reason to disturb the same.” The Supreme Court held that
charged beyond reasonable doubt and that the there was adequate compliance with the constitutional
witnesses for the protection were more credible. provision. (Martinez v. CA, 2001)
Held: The decision did not contain any findings of
fact which are essential in decision-making. (People The Supreme Court ruled that “lack of merit” is sufficient
v. Viernes, 262 SCRA 641) declaration of the legal basis for denial of petition for
review or motion for reconsideration. (Prudential Bank v.
Castro)
522
G.R. No. 166051, April 8, 2008. 5. Period for Decision
523
Sin Perjuicio judgment is a judgment without a
statement of facts in support of its conclusions.

I sweat, I bleed, I soar… 119


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

All cases or matters filed after the effectivity of (2) All cases involving the constitutionality of a treaty,
1987 Constitution must be decided or resolved international or executive agreement, or law, which
within twenty-four months from date of shall be heard by the Supreme Court en banc, and all
submission for the Supreme Court. (Section 15). other cases which under the Rules of Court are
required to be heard en banc, including those involving
the constitutionality, application, or operation of
Exception: When the Supreme Court review the presidential decrees, proclamations, orders,
factual basis of the proclamation of martial law or instructions, ordinances, and other regulations, shall be
suspension of the privilege of the writ or the decided with the concurrence of a majority of the
extension thereof, it must promulgate its decision Members who actually took part in the deliberations on
thereon within 30 days from its filing. (Article VII, the issues in the case and voted thereon.
Section 18). (1999 Bar Question)
Cases that must be heard en banc:
Mandatory. Decision within the maximum period is 1. All cases involving the constitutionality of
mandatory. Failure to comply can subject a a treaty, international or executive
Supreme Court Justice to impeachment for agreement, or law.
culpable violation of the Constitution.524 2. All cases which under the Rules of Court
are required to be heard en banc
The court, under the 1987 Constitution, is now 3. All cases involving the constitutionality,
mandated to decide or resolve the case or matter application, or operation of presidential
submitted to it for determination within specified decrees, proclamations, orders,
periods. Even when there is delay and no decision instructions, ordinances, and other
or resolution is made within the prescribed period, regulations
there is no automatic affirmance of the appealed 4. Cases heard by a division when the
decision. This is different from the rule under required majority in the division is not
Article X, Section 11(2) of the 1973 Constitution obtained;
which said that, in case of delay, the decision 5. Cases where the Supreme Court modifies
appealed from was deemed affirmed. (Sesbreño v. or reverses a doctrine or principle of law
CA, 2008) 525 previously laid down either en banc or in
division.
6. When a Case Deemed Submitted
A case or matter shall be deemed submitted for
6. Administrative cases involving the
decision or resolution upon the filing of the last discipline or dismissal of judges of lower
pleading, brief, or memorandum required by the courts (Section 11) [Dismissal of judges,
Rules of Court or by the court itself. (Section 15) Disbarment of a lawyer, suspension of
either for more than 1 year or a fine
7. Certification of Period’s Expiration and exceeding 10,000 pesos (People v.
Explanation for Failure to Render Decision or Gacott)]
Resolution 7. Election contests for President or Vice-
President.
Upon the expiration of the corresponding period, a
certification to this effect signed by the Chief 8. Appeals from Sandiganbayan or
Justice or the presiding judge shall forthwith be Constitutional Commissions. (Legal
issued and a copy thereof attached to the record of Basis?)
the case or matter, and served upon the parties.
The certification shall state why a decision or Number of Votes Needed to Decide a Case
resolution has not been rendered or issued within Heard En Banc:
said period. (Section 15) When the Supreme Court sits en banc cases are
decided by the concurrence of “majority if the
Despite the expiration of the applicable mandatory members who actually took part in the
period, the court, without prejudice to such deliberations on the issues in the cases and voted
responsibility as may have been incurred in thereon.” Thus, since a quorum of the Supreme
consequence thereof, shall decide or resolve the Court is eight, the votes of at least five are needed
case or matter submitted thereto for determination, and are enough, even if it is a question of
constitutionality. (Those who did not take part in the
without further delay. (Section 15)
deliberation do not have the right to vote)526 (1996
Bar Question)
B. Cases Decided En Banc
ASM: In reality, when the decision says that a
particular Justice “did not take part”, it does not
Section 4 necessarily mean that he was not there during the
deliberations.
524
Bernas Commentary, p 997(2003 ed).
525 526
G.R. No. 161390, April 16, 2008. Bernas Primer at 338 (2006 ed.)

I sweat, I bleed, I soar… 120


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

Q: How many justices are needed to constitute a without the concurrence of at least three of such
quorum when the Court sits en banc and there are Members.”
only fourteen justices in office? When the required number is not obtained, the case shall
be decided en banc.”
A: In People v. Ebio, 2004, since it was a capital
A careful reading of the above constitutional
criminal cases, the Court said that there should be
provision reveals the intention of the framers to
eight.527
draw a distinction between cases on one hand and,
and matters on the other hand, such that cases are
Procedure if opinion is equally divided.
‘decided’ while matters, including motions, are
When the Court en banc is equally divided in
‘resolved’. Otherwise put, the word “decided” must
opinion, or the necessary majority cannot be had,
refer to ‘cases; while the word ‘resolved’ must refer
the case shall again be deliberated on, and if after
to ‘matters’.
such deliberation no decision is reached, the
original action commenced in the court shall be
Where the required number cannot be obtained
dismissed; in appealed cases, the judgment or
in a division of three in motion for
order appealed from shall stand affirmed; and on
reconsideration. If a case has already been
all incidental matters, the petition or motion shall be
decided by the division and the losing party files a
denied.(Rule 56, Section 7, Rules of Court)
motion for reconsideration, the failure of the
division to resolve the motion because of a tie in
C. Cases Decided in Division
the voting does not leave the case undecided.
Quite plainly, if the voting results in a tie, the motion
Section 4 for reconsideration is lost. The assailed decision is
(3) Cases or matters heard by a division shall be
decided or resolved with the concurrence of a majority
not reconsidered and must therefore be deemed
of the Members who actually took part in the affirmed. (Fortich v. Corona, 1999)
deliberations on the issues in the case and voted
thereon, and in no case, without the concurrence of at VIII. Other Courts
least three of such Members. When the required
number is not obtained, the case shall be decided en Composition
banc: Provided, that no doctrine or principle of law laid Judicial Power; Judicial Review
down by the court in a decision rendered en banc or in Jurisdiction
division may be modified or reversed except by the Qualifications
court sitting en banc. Appointment
Salaries
Divisions are not separate and distinct courts. Tenure
Actions considered in any of the divisions and Removal
decisions rendered therein are, in effect by the Prohibition
same Tribunal. Decisions or resolutions of a Deciding a Case
division of the court are not inferior to an en banc
decision. (People v. Dy, 2003) A. Composition

Decisions of a division, not appealable to en The composition of lower courts shall be provided
banc. Decisions or resolutions of a division of the by law. The laws are Judiciary Act of 1948 and BP
court, when concurred in by majority of its 129.
members who actually took part in the
deliberations on the issues in a case and voted The different lower courts under the Judiciary
thereon is a decision or resolution of the Supreme Reorganization Law are the:
Court. (Firestone Ceramics v. CA, 2000) 1. Court of Appeals
2. regional trial courts
Where the required number cannot be obtained 3. metropolitan trial courts
in a division of three in deciding a case. Where 4. municipal trial courts
the required number of votes is not obtained, there 5. municipal circuit trial courts
is no decision. The only way to dispose of the case
then is to refer it to the Court en banc. (Section Other Courts:
4(3)) 1. Court of Tax Appeals
2. Sandignabayan
“Cases” v. “Matters”. 3. Sharia Court
“Cases or matters heard by a division shall be decided
or resolved with the concurrence of a majority of the
Members who actually took part in the deliberations on (Together with the Supreme Court , the
the issues in the case and voted thereon, and in no case, aforementioned tribunals make up the judicial
department of our government)528

527 528
Bernas Primer at 337 (2006 ed.) Cruz, Philippine Political Law, p. 231 (1995 ed).

I sweat, I bleed, I soar… 121


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

a. All cases in which the constitutionality or


Court of Appeals. The Court of Appeals is validity of any treaty, international or executive
composed of 68 Associate Justices and 1 Presiding agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
Justice. (RA 52; RA 8246)
regulation is in question.
b. All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
B. Judicial Power; Judicial Review in Lower Courts imposed in relation thereto.
c. All cases in which the jurisdiction of any lower
Judicial power shall be vested in one Supreme court is in issue.
Court and in such lower courts as may be d. All criminal cases in which the penalty imposed
is reclusion perpetua or higher.
established by law. e. All cases in which only an error or question of
Judicial power includes the duty of the courts of law is involved.
justice to settle actual controversies involving rights
which are legally demandable and enforceable, D. Contempt Powers
and to determine whether or not there has been a
(See Rule 71)
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
The power to punish for contempt is inherent in al
instrumentality of the Government. (Section 1)
courts; its existence is essential to the preservation
of order in judicial proceedings and to the
Legal Bases of lower courts’ power of judicial
enforcement of judgment, orders, and mandates of
review:
the courts, and consequently, to the due
1. Article VIII, Section 1. Since the power of administration of justice.530
judicial review flows from judicial power 1996 Bar Question
and since inferior courts are possessed of On the first day of the trial of a rape-murder case
judicial power, it may be fairly inferred that where the victim was a popular TV star, over a
the power of judicial review is not an hundred of her fans rallied at his entrance of the
exclusive power of the Supreme Court. courthouse, each carrying a placard demanding
2. Article VII, Section 5(2). This same the conviction of the accused and the imposition of
conclusion may be inferred from Article the death penalty on him. The rally was peaceful
VIII, Section 5(2), which confers on the and did not disturb the proceedings of the case.
Supreme Court appellate jurisdiction over Q: Can the trial court order the dispersal of the
judgments and decrees of lower courts in rallyists under the pain of being punished for
certain cases. contempt of court?
Suggested Answer: Yes, the trial court can order
Note: While a declaration of unconstitutionality the dispersal of the rally under the pain of being
made by the Supreme Court constitutes a cited for contempt. The purpose of the rally is to
precedent binding on all, a similar decision of an attempt to influence the administration of justice.
inferior court binds only the parties in the case.529 As stated in People v. Flores, 239 SCRA 83, any
conduct by any party which tends to directly or
C. Jurisdiction of Lower Courts indirectly impede or obstruct or degrade the
administration of justice is subject to the contempt
1 Statutory Conferment of Jurisdiction powers of the court.
Q: If instead of a rally, the fans of the victim wrote
The Congress shall have the power to define, letters to the newspaper editors demanding the
prescribe, and apportion the jurisdiction of the conviction of the accused, can the trial court punish
various courts. (Section 2) them for contempt?
Suggested Answer: No, the trial court cannot
2. Constitutional Conferment of Jurisdiction punish for contempt the fans of the victim who
wrote letters to the newspaper editors. Since the
letters were not addressed to the judge and the
J.M. Tuason & Co. v. CA; Ynot v. IAC: There is in
publication of the letters occurred outside the court,
effect a constitutional conferment of original
the fans cannot be punished in the absence of a
jurisdiction on the lower courts in those five cases
clear and present danger to the administration of
for which the Supreme Court is granted appellate
justice.
jurisdiction in Section 5(2).

Section 5(2). The Supreme Court has the power to


review, revise, reverse, modify, or affirm on appeal or E. Qualifications
certiorari as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:

529 530
Bernas Commentary, p 964 (2003 ed). Slade Perkins v. Director of Prisions, 58 Phil 271.

I sweat, I bleed, I soar… 122


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

1. Qualifications of Members of Court of 4. Possessing the other qualifications


Appeals prescribed by Congress (Section 7(2))
1. Must be a natural-born citizen of the a) At least 35 years old (BP 129,
Philippines (Section 7(1)) Section 26)
2. Must be a member of the Philippine Bar b) Has been engaged for at least 5
(Section 7(2)) years in the practice of law in the
3. Must be a person of proven competence, Philippines or has held public
office in the Philippines requiring
integrity, probity, and independence.
admission to the practice of law
(Section 7(3))
as an indispensable requisite.
4. Possessing other qualifications prescribed
(BP 129, Section 26)
by Congress (Section 7(2))
Section 7 of BP 129 provides that, ”The
Qualifications of CTA Judges:
Presiding Justice and the Associate Justice
Judges of the CTA shall gave the same
shall have the same qualifications as those
qualifications as Members of the Supreme Court.
provided in Constitution for Justice of the
(RA No. 1125, Section 1 in relation to CA No. 102,
Supreme Court”. Hence, the members of the
Section 1)
CA must also be:
a. Must at least be 40 years of age;
Qualifications of Members of Sandiganbayan:
b. Must have been for 15 years or more No person shall be appointed as Member of the
a judge of a lower court or engaged in Sandiganbayan unless he is at least forty years of
the practice of law in the Philippines age and for at least 10 years has been a judge of a
court of record or has been engaged in the practice
2. Constitutional Qualifications for Non- of law in the Philippines or has held office requiring
collegiate courts admission to the bar as a prerequisite for a like
1. Citizens of the Philippines (Section 7(2)) period. (PD No. 1606 as amended, Section 1)
2. Members of the Philippine Bar (Section
7(2)) Qualifications of judges of Shari’a Courts:
3. Possessing the other qualifications In addition to the qualifications for Members of
prescribed by Congress (Section 7(2)) Regional Trial Courts, a judge of the Sharia’s
4. Must be a person of proven competence, district court must be learned in the Islamic Law
integrity, probity and independence. and Jurisprudence. (PD No. 1083, Article 140)
(Section 7(3)) No person shall be appointed judge of the Shari’a
Circuit Court unless he is at least 25 years of age,
Qualifications of RTC Judges: and has passed an examination in the Shari’a and
Islamic jurisprudence to be given by the Supreme
1. Citizen of the Philippines; (Section 7(2)) Court for admission to special membership in the
2. Member of the Philippine Bar (Section Philippine Bar to practice in the Shari’a courts. (PD
7(2)) No. 1083, Article 152)
3. A person of proven competence, integrity,
probity and independence. Note: Congress may not alter the constitutional
4. Possessing the other qualifications qualifications of members of the Judiciary. But
prescribed by Congress (Section 7(2)) Congress may alter the statutory qualifications of
a) At least 35 years old (BP 129, judges and justices of lower courts.531
Section 15)
b) Has been engaged for at least It behooves every prospective appointee to the
[10] years in the practice of law Judiciary to apprise the appointing authority of
in the Philippines or has held every matter bearing on his fitness for judicial
public office in the Philippines office, including such circumstances as may reflect
requiring admission to the on his integrity and probity. Thus the fact that a
practice of law as an prospective judge failed to disclose that he had
indispensable requisite. (BP 129, been administratively charged and dismissed from
Section 15) the service for grave misconduct by a former
President of the Philippines was used against him.
It did not matter that he had resigned from office
Qualifications of MTC, MeTC, MCTC Judges: and that the administrative case against him had
1. Citizen of the Philippines; (Section 7(2)) become moot and academic.532
2. Member of the Philippine Bar (Section
7(2))
531
3. A person of proven competence, integrity, Bernas Primer at 356 (2006 ed.)
probity and independence. 532
In re JBC v. Judge Quitain, JBC No. 013, August 22, 2007.

I sweat, I bleed, I soar… 123


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

D. Appointment suspension of either for more than 1 year or a fine


exceeding 10,000 pesos requires en banc
The judges of lower courts shall be appointed by decision.
the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every The grounds for the removal of a judicial officer
vacancy. Such appointments need no confirmation. should be established beyond reasonable doubt,
For the lower courts, the President shall issue the particularly where the charges on which the
appointments within ninety days from the removal is sought are misconduct in office, willful
submission of the list. (Section 9) neglect, corruption and incompetence. (Office of
the Judicial Administrator v. Pascual, 1996)
Two months immediately before the next
presidential elections and up to the end of his term, H. Prohibition
a President or acting President shall not make
appointments… (Article VII, Section 15). In In Re: The members of courts established by law shall not
Mateo Valenzuela, 1998, it was held that during be designated to any agency performing quasi-
this period (when appointments are prohibited), the judicial or administrative functions. (Section 12)
President is not required to make appointments to
the courts nor allowed to do so. While the filling up Thus, where a judge was designated member of
of vacancies in the Judiciary is in the public the Ilocos Norte Provincial Committee on Justice
interest, there is no showing in this case of any by the Provincial Governor where the function of
compelling reason to justify the making of the the Committee was to receive complaints and
appointments during the period of the ban. make recommendations towards the speedy
disposition of cases of detainees, the designation
E. Salaries was invalidated. (In re Manzano, 166 SCRA 246
(1988).
The salary of judges of lower courts shall be fixed
by law. During their continuance in office, their I. Deciding a Case
salary shall not be decreased. (Section 10)
1. Consultation
Imposition of income tax on salaries of judges The conclusions of the [lower collegiate courts] in
does not violate the constitutional prohibition any case submitted to it for decision en banc or in
against decrease in salaries.(Nitafan v. Tan, 152 division shall be reached in consultation before the
SCRA 284) case is assigned to a Member for the writing of the
opinion of the court.
F. Tenure A certification to this effect signed by the [Chief
Justice] shall be issued and a copy thereof
The judges of lower courts shall hold office during attached to the record of the case and served upon
good behavior until they reach the age of seventy the parties.
years or become incapacitated to discharge the Any Members who took no part, or dissented, or
duties of their office. (Section 11) abstained from a decision or resolution must state
the reason therefor. (Section 13)
No law shall be passed reorganizing the Judiciary
when it undermines the security of tenure of Note: CA sits in divisions when it hears cases; the
members. (Section 2) only time to convenes as one body is to take up
matters of administration.
In Vargas v. Villaroza, (80 Phil 297 (1982), the
Supreme Court held that the guarantee of security 2. Statement of Facts and Law
of tenure is a guarantee not just against “actual No decision shall be rendered by any court without
removal” but also of “uninterrupted continuity in expressing therein clearly and distinctly the facts
tenure.” and the law on which it is based.
No petition for review or motion for reconsideration
G. Discipline/ Removal of a decision of the court shall be refused due
course or denied without stating the legal basis
The Supreme Court en banc shall have the power therefor. (Section 14)
of discipline judges of lower courts, or order their
dismissal by a vote of a majority of the Members 3. Period in Deciding Case
who actually took part in the deliberations on the Court Period
issues in the case and voted thereon. Supreme Court 24 months (Section 15)
Court of Appeals 12 months (Section 15)
According to People v. Gacott, (1995), only Sandiganbayan 3 months (Re Problem
dismissal of judges, disbarment of a lawyer, of Delays in

I sweat, I bleed, I soar… 124


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

Sandiganbayan)
All other lower courts 3 months (Section 15)

(1) All cases or matters filed after the effectivity of


1987 Constitution must be decided or resolved
within, unless reduced by the Supreme Court,
twelve months for all lower collegiate courts,
and three months for all other lower courts.
(2) A case or matter shall be deemed submitted for
decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the
Rules of Court or by the court itself.
(4) Despite the expiration of the applicable
mandatory period, the court, without prejudice to
such responsibility as may have been incurred in
consequence thereof, shall decide or resolve the
case or matter submitted thereto for determination,
without further delay. (Section 15)

RE Problem of Delays in the Sandiganbayan


The provision in Article VIII, Section 15 of the 1987
Constitution which says that cases or matters filed
must be decided by “lower collegiate courts” within
12 months, does not apply to the Sandiganbayan.
The provision refers to regular courts of lower
collegiate level, which is the Court of Appeals.
The Sandiganbayan is a special court on the same
level as the Court of Appeals, possessing all
inherent powers of a court of justice with the same
functions of a trial court. The Sandiganbayan,
being a special court, shall have the power to
promulgate its own rules. In fact, it promulgated its
own rules regarding the reglementary period of
undecided cases under its jurisdiction. In its own
rules it says that judgments on pending cases shall
be rendered within 3 months. Also, the law creating
the Sandiganbayan is also clear with the 3 month
reglementary period. The Sandiganbayan, in a
sense, acts like a trial court, therefore a 3 month
and not a 12 month reglementary period.

I sweat, I bleed, I soar… 125


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

resolution upon the filing of the last pleading, brief,


or memorandum required by the rules of the
Article IX Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law,
CONSTITUTIONAL COMMISSIONS any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari
by the aggrieved party within thirty days from
I. COMMON PROVISIONS (Article IX-A) receipt of a copy thereof.
II. CIVIL SERVICE COMMISSION (Article IX-B)
Section 8. Each Commission shall perform such
III. COMMISSION ON ELECTIONS (Article IX-C) other functions as may be provided by law.
IV. COMMISSION ON AUDIT(Article IX-D)
A. Independent Constitutional Commissions
I. Common Provisions
Independent Constitutional Commissions The independent constitutional commissions are
Safeguards Insuring Independence the:
Inhibitions on the Members of the Commissions 1. Civil Service Commission
Rotational Scheme 2. Commission on Elections
Reappointment 3. Commission on Audit
Proceedings
Enforcement of Decisions Q: Why have these commissions been made
constitutional commissions?
Section 1. The Constitutional Commissions, A: The CSC, COA and COMELEC perform key
which shall be independent, are the Civil functions in the government. In order to protect
Service Commission, the Commission on their integrity, they have been made constitutional
Elections, and the Commission on Audit. bodies.533

Section 2. No member of a Constitutional


B. Safeguards Insuring the Independence of the
Commission shall, during his tenure, hold any Commissions534
other office or employment. Neither shall he 1. They are constitutionally created; they may not
engage in the practice of any profession or in the
be abolished by statute. (Art. IX-A, §1)
active management or control of any business
which, in any way, may be affected by the 2. Each is expressly described as “independent.”
functions of his office, nor shall he be financially (Art. IX-A, §1)
interested, directly or indirectly, in any contract
with, or in any franchise or privilege granted by the
3. Each is conferred certain powers and functions
Government, any of its subdivisions, agencies, or which cannot be reduced by statute. (Art. IX-B,
instrumentalities, including government-owned or C and D)
controlled corporations or their subsidiaries. 4. The Chairmen and members cannot be
removed except by impeachment. (Art. XI, §2)
Section. 3. The salary of the Chairman and the
Commissioners shall be fixed by law and shall not
5. The Chairmen and members are given fairly
be decreased during their tenure. long term of office of 7 years. (Art. IX-B, C and
§1(2))
Section 4. The Constitutional Commissions shall 6. The terms of office of the chairmen and
appoint their officials and employees in members of all the commissioners are
accordance with law. staggered in such a way as to lessen the
opportunity for appointment of the majority of
Section 5. The Commission shall enjoy fiscal the body by the same President. (Art. IX-B, C
autonomy. Their approved annual appropriations and §1(2))
shall be automatically and regularly released.
7. The chairmen and members may not be
reappointed or appointed in an acting
Section 6. Each Commission en banc may
promulgate its own rules concerning pleadings capacity.535 (Art. IX-B, C and §1(2))
and practice before it or before any of its offices.
Such rules, however, shall not diminish, increase, 533
Bernas Primer at 367 (2006 ed.)
or modify substantive rights. 534
Cruz, Philippine Political Law, p. 278 (1995 ed).
535
Section 7. Each Commission shall decide by a In Matibag v. Benipayo, the SC said that when an ad interim
majority vote of all its Members, any case or appointment (of the Chairman of COMELEC) is not confirmed (as it
matter brought before it within sixty days from the was by-passed, or that there was no ample time for the Commission
date of its submission for decision or resolution. A on Appointments to pass upon the same), another ad interim
case or matter is deemed submitted for decision or appointment may be extended to the appointee without violating the
Constitution.

I sweat, I bleed, I soar… 126


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

8. The salaries of the chairman and members are from them any temptation to take advantage of
relatively high and may not be decreased their official positions for selfish purposes.536
during continuance in office. (Art. IX-A, §3; Art.
XVIII, §17 ) “Practice of profession” for the purpose of
Section 3, does not include teaching. Thus, a
9. The Commissions enjoy fiscal autonomy. lawyer who teaches law does not thereby, for the
(Art. IX-A, §5) purpose of Section 2, violate the prohibition of
10. Each Commission may promu