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POLITICAL LAW AND

PUBLIC
INTERNATIONAL
LAW

2013 GOLDEN NOTES


UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
MANILA
The UST GOLDEN NOTES is the annual student-edited bar review
material of the University of Santo Tomas, Faculty of Civil Law.
Communications regarding the NOTES should be addressed to
the Academics Committee of the Team: Bar-Ops.

ADDRESS: Academics Committee


Team Bar-Ops
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

TEL. NO.: (02) 731-4027


(02) 4061611 loc. 8578

Academics Committee
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the
Pontifical and Royal University of Santo Tomas, the Catholic University of the
Philippines.

2013 Edition

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No. 01

Printed in the Philippines, April 2013.


ACADEMIC YEAR 2013-2014

CIVIL LAW STUDENT COUNCIL


VICTOR LORENZO L. VILLANUEVA PRESIDENT
MARIANE TINGCHUY VICE PRESIDENT INTERNAL
RONN ROBBY ROSALES VICE PRESIDENT EXTERNAL
MARIE SYBIL TROPICALES SECRETARY
RAFAEL LORENZ SANTOS TREASURER
LUIS ALFONSO E. ARTAIZ AUDITOR
GLORIA ANASTHASIA LASAM PUBLIC RELATIONS OFFICER

TEAM: BAR-OPS
BIENVENIDO L. MABULAC II CHAIRPERSON
VICENTE JAN PLATON III VICE-CHAIRPERSON
APRIL V. ENRILE SECRETARY
ERIKA PINEDA ASST. SECRETARY
CARLO ARTEMUS V. DIAZ HEAD, FINANCE COMMITTEE
WILFREDO P. SUDIO JR. ASST. HEAD, FINANCE COMMITTEE
MHAE ANN V. RIVERA ASST. HEAD, FINANCE COMMITTEE
CLARABEL ANNE R. LACSINA HEAD, HOTEL ACCOMMODATIONS COMMITTEE
VANNESSA ANNE VIRAY ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
HAZEL M. NAVAREZ ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
ARWIN V. CABANTING HEAD, LOGISTICS COMMITTEE
NATHANIEL LIBERATO ASST. HEAD, LOGISTICS COMMITTEE

ATTY. AL CONRAD B. ESPALDON


ADVISER
ACADEMICS COMMITTEE
ALJON D. DE GUZMAN CHAIRPERSON
MARK KEVIN U. DELLOSA VICE-CHAIR FOR ACADEMICS
ANTHONY M. ROBLES VICE-CHAIR FOR LAYOUT AND DESIGN
CLARABEL ANNE R. LACSINA MEMBER, LAYOUT AND DESIGN TEAM
RAFAEL LORENZ SANTOS MEMBER, LAYOUT AND DESIGN TEAM
JAMES BRYAN V. ESTELEYDES VICE-CHAIR FOR RESEARCH
MARIA JAMYKA S. FAMA MEMBER, RESEARCH TEAM
PAULINE BREISSEE GAYLE D. ALCARAZ MEMBER, RESEARCH TEAM
ROBBIE BAAGA MEMBER, RESEARCH TEAM
MONICA S. CAJUCOM MEMBER, RESEARCH TEAM
DOMINIC VICTOR C. DE ALBAN MEMBER, RESEARCH TEAM
OMAR DELOSO MEMBER, RESEARCH TEAM
ANNABELLA HERNANDEZ MEMBER, RESEARCH TEAM
MA. CRISTINA MANZO-DAGUDAG MEMBER, RESEARCH TEAM
WILLIAM RUSSELL MALANG MEMBER, RESEARCH TEAM
CHARMAINE PANLAQUE MEMBER, RESEARCH TEAM

POLITICAL LAW COMMITTEE


APRIL V. ENRILE POLITICAL LAW COMMITTEE HEAD
ANTHONY M. ROBLES ASST. POLITICAL LAW COMMITTEE HEAD
SHERYL C. ALVENDIA MEMBER
KEVIN JOHN D.L. AMPUAN MEMBER
REX CRIS N. ANGELES MEMBER
ZANDER A. ANTONIO MEMBER
PAULA BEATRIZ L. AZURIN MEMBER
JOANNE M. BESMONTE MEMBER
JOCELI JULIA E. EMBUSCADO MEMBER
LISETTE A. MANDOCDOC MEMBER
KRISTINE ROSSELLINI P. MANIEGO MEMBER
ANGELA MICHELLE A. PAGUIO MEMBER

ATTY. AL CONRAD B. ESPALDON


ADVISER

ATTY. RYAN CRISTOPHER A. MORENO


CONSULTANT
FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS

ACADEMIC OFFICIALS

ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAO, O.P.


DEAN REGENT

ATTY. ARTHUR B. CAPILI


FACULTY SECRETARY

ATTY. ELGIN MICHAEL C. PEREZ


LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC

ATTY. AMADO E. TAYAG


SWDB COORDINATOR

LENY G. GADANIA, R.G.C.


GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS & INSPIRATION

JUSTICE OSWALDO D. AGCAOILI

ATTY. ENRIQUE V. DELA CRUZ

ATTY. RENE B. GOROSPE

ATTY. MARLON J. MANUEL

ATTY. RAFAELITO M. GARAYBLAS

ATTY. EDWIN R. SANDOVAL

ATTY. MAURICIO C. ULEP

For being our guideposts in understanding the intricate


sphere of Political Law.
- Academics Committee 2013
March on with confidence, head up high, a
smile on your face and faith in yourself. The
Bar exercise is just a good opportunity to prove
and improve yourself. It is not an adversary
but an ally, and ever if it were, it is one that
you can persuade and convince to become a
lifelong friend.
-Atty. Rene B. Gorospe
DISCLAIMER

THE RISK OF USE, MISUSE OR NON-


USE OF THIS BAR REVIEW MATERIAL
SHALL BE BORNE BY THE USER/
NON-USER.
THE PHILIPPINE CONSTITUTION

THE PHILIPPINE CONSTITUTION Q: In case of doubt, how should the Constitution be


construed?

CONSTITUTION: A: The provisions should be considered self-


DEFINITION, NATURE AND CONCEPTS executing; mandatory rather than directory; and
prospective rather than retroactive (Nachura,
Q: What is Political Law? Reviewer in Political Law, 2005).

A: It is a branch of public law that deals with the Note: The provisions of the Constitution are to be
organization and operations of the governmental considered as self-executing because if they are not treated
organs of the State and defines its relations with the as such, the legislature can ignore and practically nullify the
inhabitants of the territory (People v. Perfecto, G.R. direction of the fundamental law.
No. L-18463, October 4, 1922).
A provision is not self-executing when it merely
Q: What is the scope of political law? indicates the principles without laying down rules
giving them the force of law (Political Law Reviewer,
A: Suarez (2011).
1. Political Law
2. Constitutional Law Q: What is the doctrine of Constitutional
3. Administrative Law Supremacy?
4. Law on Municipal Corporations
5. Law on Public Officers A: Under this doctrine, if a law or contract violates
6. Election laws any norm of the Constitution, that law or contract,
7. Public International Law whether promulgated by the legislative or by the
executive branch or entered into by private persons
Q: What is a Constitution? for private purposes, is null and void and without any
force and effect. Thus, since the Constitution is the
A: The Constitution is the basic and paramount law to fundamental, paramount and supreme law of the
which all other laws must conform and to which all nation, it is deemed written in every statute and
persons, including the highest officials, must defer contract (Manila Prince Hotel v. GSIS, G.R. No.
(Cruz, Constitutional Law, 1998). 122156, February 3, 1997).

Q: When did the present Philippine Constitution PARTS


take effect?
Q: What are the three parts of a written
A: It took effect on February 2, 1987, which was the Constitution?
date of the plebiscite. (De Leon v. Esguerra, G.R. No.
L-78059, August 31, 1987). A:
1. Constitution of Sovereignty this refers to the
Q: How should the Philippine Constitution be provisions pointing out the modes or procedure in
interpreted? accordance with which formal changes in the
Constitution may be made (Art. XVII, Amendments
A: or Revisions).
1. Verba legis whenever possible, the words used
in the Constitution must be given their ordinary 2. Constitution of Liberty the series of prescriptions
meaning except where technical terms are setting forth the fundamental civil and political
employed. rights of the citizens and imposing limitations on
the power of the government as a means of
2. Ratio legis et anima where there is ambiguity, securing the enjoyment of those rights (Art. III, Bill
the words of the Constitution should be of Rights).
interpreted in accordance with the intent of the
framers. 3. Constitution of Government provides for a
structure and system of government; refers to the
3. Ut magis valeat quam pereat the Constitution provisions outlining the organization of the
has to be interpreted as a whole (Francisco v. HR, government, enumerating its powers, laying down
G.R. No. 160261, November 10, 2003). certain rules relative to its administration and
defining the electorate (Art. VI, Legislative Dept,

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9 FACULTY OF CIVIL LAW
Political and International Law

Art. VII, Exec. Dept, Art. VIII, Judicial Dept, Art. IX, 2. By a majority vote of all its members, submit such
Constitutional Commissions). question to the electorate.

AMENDMENT AND REVISION If Congress, acting as a ConAss, calls for a ConCon but
does not provide details for the calling of such
ConCon, Congress by exercising its ordinary legislative
Q: Distinguish amendment from revision. power may supply such details. But in so doing, the
Congress (as legislature) should not transgress the
A: resolution of Congress acting as a ConAss.
AMENDMENT REVISION
The choice between ConAss or ConCon is left to the
Isolated or piecemeal A revamp or rewriting
discretion of Congress. In other words, it is a political
change merely by of the whole question, but the manner of calling a ConCon is subject
adding, deleting, or instrument altering to judicial review because the Constitution has
reducing without the substantial provided for voting requirements.
altering the basic entirety of the
principles involved. Constitution. c. By Peoples Initiative upon a petition of at
least 12% of the total number of registered
Q: What are the tests to determine whether a voters, of which every legislative district
proposed change is an amendment or a revision? must be represented by 3% of the registered
voters therein.
A:
1. Quantitative test asks whether the proposed 2. Ratification Amendments or revisions to the
change is as extensive in its provisions as to Constitution should be ratified by the majority in
change directly the substantial entirety of the a plebiscite which should be held not earlier than
Constitution by the deletion or alteration of 60 days nor later than 90 days after the approval
numerous existing provisions. One examines only of such amendment.
the number of provisions affected and does not
consider the degree of the change. Q. What are the requisites for valid ratification?

2. Qualitative test asks whether the change will A.


accomplish such far reaching changes in the 1. Held in a plebiscite conducted under Election
nature of our basic governmental plan as to Law
amount to a revision. (Lambino v. Comelec, G.R. 2. Supervised by COMELEC
No. 174153, October 25, 2006) 3. Where only registered voters take part

Q: How may the Constitution be amended or Note:


revised? GR: Presidential proclamation is not required for effectivity
of amendments/revisions.
A:
1. Proposal XPN: Proposed amendment/revision provides
a. By Congress upon a vote of of all its otherwise.
members acting as Constituent Assembly
(ConAss) Q: What is the Doctrine of Proper Submission?

Note: While the substance of the proposals made A: A plebiscite may be held on the same day as a
by each type of ConAss is not subject to judicial regular election (Gonzales v. COMELEC, G.R. No. L-
review, the manner the proposals are made is 28196, November 9, 1967), provided the people are
subject to judicial review. sufficiently informed of the amendments to be voted
upon, for them to conscientiously deliberate thereon,
Since ConAss owes their existence to the to express their will in a genuine manner. Submission
Constitution, the courts may determine whether of piece-meal amendments is unconstitutional. All
the assembly has acted in accordance with the
amendments must be submitted for ratification in
Constitution.
one plebiscite only. The people have to be given a
proper frame of reference in arriving at their decision
b. By Constitutional Convention (ConCon)
(Tolentino v. COMELEC, G.R. No. L-34150, October 16,
Note: Congress may call a ConCon:
1971).
1. By a vote of 2/3 of all its members; or

UNIVERSITY OF SANTO TOMAS


2013 GOLDEN NOTES 10
THE PHILIPPINE CONSTITUTION

Q: What is initiative? laws.

A: It is the power of the people to propose While R.A. No. 6735 specially detailed the process in
amendments to the Constitution or to propose and implementing initiative and referendum on national
enact legislation. and local laws, it intentionally did not do so on the
system of initiative on amendments to the
Q: What are the three (3) kinds of initiative under Constitution (Defensor-Santiago v. COMELEC, G.R.
R.A. 6735? No. 127325, March 19, 1997).

A: Q: Is the initiative to change the Constitution


1. Initiative on the Constitutionrefers to a petition applicable to revision?
proposing amendments to the Constitution
2. Initiative on statutesrefers to a petition to A: No. An initiative to change the Constitution applies
enact a national legislation only to an amendment. Revision broadly implies a
3. Initiative on local legislationrefers to a petition change that alters basic principle in the Constitution
proposing to enact a regional, provincial, like altering the principle of separation of powers or
municipal, city, or barangay law, resolution or the system of checks and balances. The initiative of
ordinance (Section 2 [a], R.A. 6735). the petitioners is a revision and not merely an
amendment (Lambino vs. COMELEC, G.R. No. 174153,
Note: Section 2 (b) of R.A. 6735 provides for: October 25, 2006).
a. Indirect Initiative- exercise of initiative by the people
through a proposition sent to Congress or the local Q: What is a referendum?
legislative body for action
b. Direct Initiative- the people themselves filed the
A: It is the power of the electorate to approve or
petition with the COMELEC and not with Congress.
reject legislation through an election called for that
Q: Is R.A. 6735 (The Initiative and Referendum Act) purpose.
adequate to cover the system of initiative on
amendments to the Constitution? Q: What are the two (2) classes of referendum?

A: No. Under the said law, initiative on the A:


Constitution is confined only to proposals to AMEND. 1. Referendum on Statutes- refers to a petition to
The people are not accorded the power to "directly approve or reject a law, or part thereof, passed
propose, enact, approve, or reject, in whole or in by Congress.
part, the Constitution" through the system of 2. Referendum on Local Law- refers to a petition to
initiative. They can only do so with respect to "laws, approve or reject a law, resolution or ordinance
ordinances, or resolutions." Secondly, the Act does enacted by regional assemblies and local
not provide for the contents of a petition for initiative legislative bodies.
on the Constitution. The use of the clause "proposed
Note: The following cannot be subject of an initiative or
laws sought to be enacted, approved or rejected, referendum:
amended or repealed" denotes that R.A. No. 6735 a. Petition embracing more than one subject shall be
excludes initiative on the amendments of the submitted to the electorate.
Constitution. b. Statutes involving emergency measures, the
enactment of which is specifically vested in Congress
Also, while the law provides subtitles for National by the Constitution, cannot be subject to referendum
Initiative and Referendum and for Local Initiative and until 90 days after their effectivity. (Sec. 10, RA 6735)
Referendum, no subtitle is provided for initiative on
the Constitution. This means that the main thrust of Q: Compare and differentiate the concepts and
the law is initiative and referendum on national and processes of initiative from referendum.
local laws. If R.A. No. 6735 were intended to fully
provide for the implementation of the initiative on A:
amendments to the Constitution, it could have INITIATIVE REFERENDUM
provided for a subtitle therefor, considering that in The power of the The power of the
the order of things, the primacy of interest, or people to propose legislation through an
hierarchy of values, the right of the people to directly amendments to the election called for the
propose amendments to the Constitution is far more Constitution or to purpose (Sec. 3, R.A.
important than the initiative on national and local propose and enact No. 6735 [1989]).

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11 FACULTY OF CIVIL LAW
Political and International Law

legislations through an GENERAL PROVISIONS


election called for the
purpose. Q: What are the symbols of nationality?

LOCAL INITIATIVE LOCAL REFERENDUM A:


The legal process The legal process 1. Philippine Flag the flag may be changed by
whereby the registered whereby the registered constitutional amendment
voters of a local voters of the local 2. Name for the country
government unit may government units may 3. National anthem
directly propose, enact, approve, amend or 4. National seal
or amend any reject any ordinance
ordinance (Sec. 120). enacted by the Note: Congress may, by law, adopt new symbols in
Sanggunian (Sec. 126). numbers 2, 3 and 4 subject to ratification by the People in a
referendum.
SELF-EXECUTING AND NON-SELF-EXECUTING
PROVISIONS

Q: What constitutional provisions are considered


Self-Executing and Non-Self-Executing?

A: The following provisions of the Constitution are


considered as self-executing:

1. Provisions in the Bill of Rights on arrests,


searches and seizures, the rights of a person
under custodial investigation, the rights of an
accused, and the privilege against self-
incrimination;

2. Fundamental rights of life, liberty and the


protection of property;

3. Provisions forbidding the taking or damaging of


property for public use without just
compensation.

Note:
GR: A constitutional provision is self-executing.

XPNs: where it merely announces a policy and its


language empowers the legislature to prescribe the
means by which the policy shall be carried into effect:

a. Article II on "Declaration of Principles and State


Policies"
XPNs to the XPN: Art II, Section 16- right of
the people to a balanced and healthful
ecology in accord with the rhythm and
harmony of nature (Oposa vs. Factoran ,G.R.
No. 101083, July 30, 1993).

b. Article XIII on "Social Justice and Human Rights"

c. Article XIV on "Education Science and Technology,


Arts, Culture end Sports" (Manila Prince Hotel v.
GSIS, G.R. 122156, Feb. 3, 1997)

UNIVERSITY OF SANTO TOMAS


2013 GOLDEN NOTES 12
GENERAL CONSIDERATIONS

GENERAL CONSIDERATIONS A: It means that all waters, around between and


connecting different islands belonging to the
NATIONAL TERRITORY Philippine Archipelago, irrespective of their width or
dimension, are necessary appurtenances of its land
territory, forming an integral part of the national or
Q: What is Territory?
inland waters, subject to the exclusive sovereignty of
the Philippines.
A: Territory is the fixed portion of the surface of the
Earth inhabited by the people of the State. As an nd
It is found in the 2 sentence of Article 1 of the 1987
element of a State, it is an area over which a state has
Constitution.
effective control.
Q: What does the Archipelagic Doctrine emphasize?
Q: What comprises the Philippine territory?
A: It emphasizes the unity of the land and waters by
A:
defining an archipelago as group of islands
1. The Philippine archipelago that body of water
surrounded by waters or a body of waters studded
studded with islands which is delineated in the
with islands.
Treaty of Paris, as amended by the Treaty of
Washington and the Treaty with Great Britain.
Note: To emphasize unity, an imaginary single baseline is
drawn around the islands by joining appropriate points of
CONSISTS OF INCLUDING ITS the outermost islands of the archipelago with straight lines
a. Terrestrial 1. Territorial Sea and all islands and waters enclosed within the baseline
b. Fluvial 2. Seabed form part of its territory.
c. Aerial Domains 3. Subsoil
4. Insular shelves Q: What are the purposes of the Archipelagic
5. Other Submarine areas Doctrine?

A: The following are the purposes of the


2. All other territories over which the Philippines has Archipelagic Doctrine:
sovereignty or jurisdiction includes any territory a. Territorial Integrity
that presently belongs or might in the future b. National Security
belong to the Philippines through any of the c. Economic reasons
accepted international modes of acquiring
territory. Note: The main purpose of the archipelagic doctrine is to
protect the territorial interests of an archipelago, that is, to
Q: What are the components of our National protect the territorial integrity of the archipelago. Without
Territory? it, there would be pockets of high seas between some of
our islands and islets, thus foreign vessels would be able to
A: pass through these pockets of seas and would have no
jurisdiction over them.
1. Terrestrial Domain
2. Maritime Domain
Q: What is the effect of R.A. 9522 or An Act to
3. Aerial Domain
Amend Certain Provisions of Republic Act No. 3046,
As Amended by Republic Act 5446, To Define the
Note: R.A. 9522 which was approved by President
Archipelagic Baseline of the Philippines and For
Arroyo on March 10, 2009 amended certain
Other Purposes?
provisions of R.A. 3046, as amended by R.A. 5446 and
defined the archipelagic baselines of the Philippines.
A: R.A. 9522 (approved: March 10, 2009) amends R.A.
3046, which defines the baselines of the territorial
ARCHIPELAGIC DOCTRINE
sea of the Philippines. The Kalayaan Island Group as
constituted under P.D. No. 1596 and Bajo de
Q: What is an Archipelagic State?
Masinloc, also known as Sacrborough Shoal is
determined as Regime of Islands under the
A: It is a state constituted wholly by one or more
Republic of the Philippines consistent with Article 121
archipelagos and may include other islands.
of the United Convention on the Law of the Sea which
states:
Q: What is the Archipelagic Doctrine and where is it
found in the 1987 Philippine Constitution?

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13 FACULTY OF CIVIL LAW
Political and International Law

1. An island is a naturally formed area of land, Q: What is the basis of the Doctrine of State
surrounded by water, which is above water at Immunity?
high tide.
2. Except as provided for in paragraph 3, the A: It reflects nothing less than recognition of the
territorial sea, the contiguous zone, the sovereign character of the State and an express
exclusive economic zone and the continental affirmation of the unwritten rule effectively insulating
shelf of an island are determined in accordance it from the jurisdiction of courts. It is based on the
with the provisions of this Convention very essence of sovereignty (Department of
applicable to other land territory. Agriculture v. NLRC, G.R. No. 104269, November 11,
3. Rocks which cannot sustain human habitation 1993).
or economic life of their own shall have no
exclusive economic zone or continental shelf. Note: There can be no legal right against the authority
which makes the law on which the right depends (Republic
Q: Is the Spratly Group of Islands (SGI) part of the vs. Villasor, G.R. No. L-30671, November 8, 1973). However,
it may be sued if it gives consent, whether express or
Philippine Archipelago?
implied.

A: No. It is too far to be included within the


Q: Does this doctrine apply as well to foreign
archipelagic lines encircling the internal waters of
government?
Philippine Archipelago. However, the SGI is part of
the Philippine territory because it was discovered by
A: Yes. This doctrine also applies to foreign
a Filipino seaman in the name of Tomas Cloma who
government because of the sovereign equality of all
later renounced his claim over it in favor of the
the state. Accordingly, immunity is enjoyed by other
Republic of the Philippines. Subsequently, then Pres.
States, consonant with the public international law
Marcos issued a Presidential Decree constituting SGI
principle of par in parem non habet imperium. The
as part of the Philippine territory and sending some
head of State, who is deemed the personification of
of our armed forces to protect said island and
the State, is inviolable, and thus, enjoys immunity
maintain our sovereignty over it.
from suit. (JUSMAG Philippines v. NLRC, G.R. No.
108813, December 15, 1994).
Q: Should the Spratly Group of Islands and
Scarborough Shoal be considered as part of National
Q: What is the remedy of a person who feels
Territory?
aggrieved by the acts of a foreign government?
A: Yes. Article I of the Constitution provides: The
A: Under both Public International Law and
national territory comprises the Philippine
Transnational Law, a person who feels aggrieved by
archipelago, x xx, and all other territories over which
the acts of a foreign sovereign can ask his own
the Philippines has sovereignty or jurisdiction, xxx.
government to espouse his cause through diplomatic
The Spratly Group of Islands and Scarborough Shoal
channels. (Holy See, The v. Rosario, Jr., 238 SCRA
fall under the second phrase and all other territories
524, December 1, 1994)
over which the Philippines has sovereignty or
jurisdiction. It is part of our national territory
Q: Can the State waive its immunity?
because the Philippines exercise sovereignty (through
election of public officials) over the Spratly Group of
A: Yes, expressly or impliedly.
Islands. Moreover, under the Philippine Baselines Law
1. Express consent of the State may be manifested
of 2009 (RA 9522), the Spratly Islands and the
only through general or special law.
Scarborough Shoal are classified as islands under the
2. Implied consent is given when the State itself
regime of the Republic of the Philippines (Philippine
commences litigation or when it enters into a
Baselines Law of 2009).
contract. There is an implied consent when the
state enters into a business contract. (US v. Ruiz,
STATE IMMUNITY G.R. No. L-35645 May 22, 1985)

Q: What is the Doctrine of State Immunity? Q: Do all contracts entered into by the government
operate as a waiver of its non-suability?
A: Under this doctrine, the State cannot be sued
without its consent (Sec. 3, Art. XVI, 1987 A: No. Distinction must still be made between one
Constitution). which is executed in the exercise of its sovereign
function and another which is done in its proprietary

UNIVERSITY OF SANTO TOMAS


2013 GOLDEN NOTES 14
GENERAL CONSIDERATIONS

capacity. A State may be said to have descended to from suit. It did not remove itself from the operation
the level of an individual and can be deemed to have of articles 1732 to 1766 of the Civil Code on common
actually given its consent to be sued only when it carriers. (Malang v. PNRC, G.R. No. L-49930, August 7,
enters into business contracts. It does not apply 1985)
where the contract relates to the exercise of its
sovereign functions (Department of Agriculture vs. Q: Distinguish unincorporated government agency
NLRC G.R. No. 104269, November 11, 1993). performing governmental function and one
performing proprietary functions according to the
Q: What is the Restrictive Theory of State Immunity applicability of the Doctrine of State Immunity.
from Suit?
A:
A: The Restrictive Theory of State Immunity means UNINCORPORATED UNINCORPORATED
that a State may be said to have descended to the GOVERNMENT AGENCY GOVERNMENT AGENCY
level of an individual and can thus be deemed to have PERFORMING PERFORMING
tacitly given its consent to be sued only when it GOVERNMENTAL PROPRIETARY FUNCTIONS
enters into business contracts. However, the FUNCTIONS
restrictive application of State immunity is proper Immunity has been Immunity has not been
only when the proceedings arise out of commercial upheld in its favor upheld in its favor whose
transactions of the foreign sovereign, its commercial because its function is function was not in pursuit
activities or economic affairs. It does not apply governmental or of a necessary function of
where the contract relates to the exercise of its incidental to such government but was
sovereign functions. (US v. Ruiz, G.R. No. L-35645, function. essentially a business. (Air
May 22, 1985) Transportation Office v.
Spouses David, G.R. No.
Q: When is a suit considered as suit against the 159402, Feb. 23, 2011)
State?
Q: When is a suit against a public official deemed to
A: be a suit against the State?
1. When the Republic is sued by name;
2. When the suit is against an unincorporated A: The Doctrine of State Immunity from suit applies
government agency; to complaints filed against public officials for acts
3. When the suit is on its face against a government done in the performance of their duties within the
officer but the case is such that ultimate liability scope of their authority.
will belong not to the officer but to the
government. (Republic v. Sandoval, G.R. No. GR: The rule is that the suit must be regarded as one
84607, March 19, 1993) against the state where the satisfaction of the
judgment against the public official concerned will
Q: Petitioners sued the Philippine National Railways require the state to perform a positive act, such as
for damages for the death of their son who fell from appropriation of the amount necessary to pay the
an overloaded train belonging to the PNR. The trial damages awarded to the plaintiff.
court dismissed the suit on the ground that the
charter of the PNR, as amended by P.D No. 741, has XPNs: The rule does not apply where:
made the same a government instrumentality, and 1. The public official is charged in his official
thus immune from suit. Is the dismissal proper? capacity for acts that are unlawful and
injurious to the rights of others. Public
A: No. The correct rule is that not all government officials are not exempt, in their personal
entities, whether corporate or non-corporate, are capacity, from liability arising from acts
immune from suits. Immunity from suit is determined committed in bad faith; or
by the character of the objects for which the entity is 2. The public official is clearly being sued not in
organized. When the government enters into a his official capacity but in his personal
commercial business, it abandons its sovereign capacity, although the acts complained of
capacity and is to be treated like any other may have been committed while he
corporation. In this case, the State divested itself of occupied a public position. (Lansang vs. CA,
its sovereign capacity when it organized the PNR G.R. No. 102667, February 23, 2000)
which is no different from its predecessors, the
Manila Railroad Company. Thus, PNR is not immune

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15 FACULTY OF CIVIL LAW
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Q: What are the implications of the phrase waiver Jure gestionis by right of economic or
of immunity by the State does not mean a business relation = may
concession of its liability? be sued
Jure imperii by right of sovereign
A: When the State gives its consent to be sued, all power, in the exercise of
it does is to give the other party an opportunity to sovereign functions =
show that the State is liable. Accordingly, the phrase cannot be sued
that waiver of immunity by the State does not mean
a concession of liability means that by consenting to Q: In what instances may a public officer be sued
be sued, the State does not necessarily admit that it is without the States consent?
liable.
A:
In such a case the State is merely giving the plaintiff a 1. To compel him to do an act required by law
chance to prove that the State is liable but the State 2. To restrain him from enforcing an act claimed to
retains the right to raise all lawful defenses. be unconstitutional
(Philippine Rock Industries, Inc. v. Board of 3. To compel payment of damages from an already
Liquidators, G.R. No. 84992, Dec. 15, 1989) appropriated assurance fund or to refund tax
over-payments from a fund already available for
Q: Distinguish suability from liability of the State. the purpose
4. To secure a judgment that the officer impleaded
A: may satisfy the judgment himself without the
SUABILITY LIABILITY State having to do a positive act to assist him
Depends on the consent Depends on the 5. Where the government itself has violated its own
of the State to be sued applicable law and the laws because the doctrine of State immunity
established facts cannot be used to perpetrate an injustice
The circumstance that a The State can never be
State is suable does not held liable if it is not Q: What is the true test in determining whether a
necessarily mean that it is suable. suit against a public officer is a suit against the
liable. State?

Q: How are the liabilities of the following A: The test is that, if a public officer or agency is sued
determined? and made liable, the State will have to perform an
affirmative act of appropriating the needed amount
A: to satisfy the judgment. If the State will have to do so,
1. Public officers by their acts without or in excess then, it is a suit against the State.
of jurisdiction: any injury caused by him is his
own personal liability and cannot be imputed to Q: Is garnishment of government funds allowed?
the State.
2. Government agencies establish whether or not A: GR: No. Whether the money is deposited by way of
the State, as principal which may ultimately be general or special deposit, they remain government
held liable, has given its consent. funds and are not subject to garnishment.
3. Government Doctrine of State immunity is
available. XPN: Where a law or ordinance has been
enacted appropriating a specific amount to
Q: How is the suitability of government agencies pay a valid government obligation, then the
determined? money can be garnished.

GOVERNMENT AGENCIES SUABILITY Note: Funds belonging to government corporations


Incorporated agencies test of suability is stated which can sue and be sued and are deposited with a
bank can be garnished. (PNB v. Pabalan, G.R. No. L-
in their charters. If its
33112, June 15, 1978)
charter says so, it is
suable
If the local legislative authority refuses to enact a law
Unincorporated suable if the nature of
appropriating the money judgment rendered by the
government agencies their acts is proprietary
court, the winning party may file a petition for
mandamus to compel the legislative authority to

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2013 GOLDEN NOTES 16
GENERAL CONSIDERATIONS

enact a law (Municipality of Makati v. CA, G.R. Nos. Q: What is a Republican State?
89898-99, Oct. 1, 1990).
A: It is a state wherein all government authority
Q: Can the Government be made to pay interest in emanates from the people and is exercised by
money judgments against it? representatives chosen by the people. (Dissenting
Opinion of Justice Puno, G.R. No. 148334, January 21,
A: GR: No. 2004)

XPNs: Q: What are the manifestations of Republicanism?


1. Eminent domain
2. Erroneous collection of taxes A: The following are the manifestations of
3. Where government agrees to pay Republicanism:
interest pursuant to law.
1. Ours is a government of laws and not of men.
Q: Angel Lucero filed an action directly in court 2. Rule of Majority (Plurality in elections)
against the Government seeking payment for a 3. Accountability of public officials
parcel of land which the national government 4. Bill of Rights
utilized for a road widening project. Can the 5. Legislature cannot pass irrepealable laws
government invoke the doctrine of non-suitability of 6. Separation of powers
the state?
Note: In view of the new Constitution, the Philippines
A: No. When the government expropriates property is not only a representative or republican state but
for public use without paying just compensation, it also shares some aspects of direct democracy such as
cannot invoke its immunity from the suit. Otherwise, initiative and referendum.
the right guaranteed in Section 9, Article III of the
1987 Constitution that private property shall not be Q: What is Constitutional Authoritarianism?
taken for public use without just compensation will
be rendered nugatory. (Ministerio vs. Court of First A: Constitutional authoritarianism, as understood and
Instance, L-31635, Aug. 31, 1971) practiced in the Marcos regime under the 1973
constitution, was the assumption of extraordinary
GENERAL PRINCIPLES AND STATE POLICIES powers by the President including legislative and
judicial and even constituent powers.
Q: Are the provisions in Article II self-executing?
Q: Is constitutional authoritarianism compatible
A: GR: No. By its very title, Article II of the with a republican state?
Constitution is a declaration of principles and state
policies. However, principles in Article II are not A. Yes, if the Constitution upon which the Executive
intended to be self-executing principles ready for bases his assumption of power is a legitimate
enforcement through the courts. They are used by expression of the peoples will and if the Executive
the judiciary as aids or guides in the exercise of its who assumes power received his office through a
power of judicial review, and by the legislature in its valid election by the people. (Bernas Primer, 2006)
enactment of laws. (Tondo Medical v. CA, G.R. No.
167324, July 17, 2007) Q: What is the State policy regarding war?

XPN: But a provision that is complete in A: The State renounces war as an instrument of
itself, and provides sufficient rules for the national policy. (Sec. 2, Art. II, 1987 Constitution)
exercise of rights, is self-executing. Thus,
certain provisions in Art. II are self-executing, Q: Does the Philippines renounce defensive war?
one of which is that provided in Section 16,
Art. II, The State shall protect and advance A. No, because it is duty bound to defend its citizens.
the right of the people to a balanced and Under the Constitution, the prime duty of the
healthful ecology in accord with the rhythm government is to serve and protect the people.
and harmony of nature. (Oposa v. Factoran,
supra.) The duty of full public disclosure is Q: What are the policies of the State on the
self executing provision. (Province of North following?
Cotabato v. GRP G.R. 183591 Oct. 14,2008) 1. Working women

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17 FACULTY OF CIVIL LAW
Political and International Law

2. Ecology reform or stewardship, whenever applicable in


3. The symbols of statehood accordance with law, in the disposition or
4. Cultural minorities utilization of other natural resources, including
5. Science and Technology lands of the public domain under lease or
concession suitable to agriculture, subject to
A: prior rights, homestead rights of small settlers,
1. Section 14, Article XIII of the Constitution and the rights of indigenous communities to their
provides: "The State shall protect working ancestral lands.
women by providing safe and healthful working
conditions, taking into account their maternal The State may resettle landless farmers and farm
functions, and such facilities and opportunities workers in its own agricultural estates which
that will enhance their welfare and enable them shall be distributed to them in the manner
to realize their full potential in the service of the provided by law."
nation."
Section 17, Article XIV of the Constitution states:
2. Section 16, Article II of the Constitution provides: "The State shall recognize, respect and protect
The State shall protect and advance the right of the rights of indigenous cultural communities to
the people and their posterity to a balanced and preserve and develop their cultures, traditions,
healthfulecologyin accord with the rhythm and and institutions. It shall consider these rights in
harmony of nature." the formulation of national plans and policies."

3. Section 1, Article XVI of the Constitution provides: 5. Section 17, Article II of the Constitution provides:
"The Flag of the Philippines shall be red, white, "The State shall give priority to education,
and blue, with a sun and three stars, as science and technology, arts, culture and sports
consecrated and honored by the people and to foster patriotism and nationalism, accelerate
recognized by law." social progress, and promote total human
liberation and development."
Section 2, Article XVI of the Constitution states:
The Congress may by law, adopt a new name for Section 14, Article XII of the Constitution reads in
the country, a national anthem, or a national part: "The sustained development of a reservoir
seal, which shall all be truly reflective and of national talents consisting of Filipino scientists,
symbolic of the ideals, history, and traditions of entrepreneurs, professionals, managers, high-
the people. Such law shall take effect only upon level technical manpower and skilled workers
its ratification by the people in a national and craftsmen shall be promoted by the State.
referendum." The State shall encourage appropriate
technology and regulate its transfer for the
4. Section 22, Article II of the Constitution provides: national benefit.
The State recognizes and promotes the rights of
indigenous cultural communities within the Sub-section 2, Section 3, Article XIV of the
framework of national unity and development." Constitution states: "They (educational
institutions) shall inculcate patriotism and
Section 5, Article XII of the Constitution reads: nationalism, foster love of humanity, respect for
The State, subject to the provisions of this human rights, appreciation of the role of national
Constitution and national development policies heroes in the historical development of the
and programs, shall protect the rights of country, teach the rights and duties of
indigenous cultural communities to their citizenship, strengthen ethical and spiritual
ancestral lands to ensure their economic, social values, develop moral character and personal
and cultural well-being. discipline, encourage critical and creative
thinking, broaden scientific and technological
The Congress may provide for the applicability of knowledge, and promote vocational efficiency."
customary laws governing property rights or
relations in determining the ownership and Section 10, Article XIV of the Constitution
extent of the ancestral domains." declares: "Science and Technology are essential
for national development and progress. The
Section 6, Art. XIII of the Constitution provides: State shall give priority to research and
The State shall apply the principles of agrarian development, invention, innovation, and their

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2013 GOLDEN NOTES 18
GENERAL CONSIDERATIONS

utilization; and to science and technology 4. Section 17, Article XI provides: a sworn statement
education, training, services. It shall support of assets, liabilities and net worth of the
indigenous, appropriate, and self-reliant President, the Vice-President, the Members of
scientific and cultural capabilities, and their the Cabinet, the Congress, the Supreme Court,
application to the country's productive systems the Constitutional Commission and other
and national life." constitutional offices, and officers of the armed
forces with general or flag rank filed upon their
Section 11, Article XIV of the Constitution assumption of office shall be disclosed to the
provides: "The Congress may provide for public in the manner provided by law.
incentives, including tax deductions, to
encourage private participation in programs of 5. Section 21, Article XII declares in part:
basic and applied scientific research. "Information on foreign loans obtained or
Scholarships, grants-in-aid or other forms of guaranteed by the government shall be made
Incentives shall be provided to deserving science available to the public."
students, researchers, scientists, investors,
technologists, and specially gifted citizens." Note: These provisions on public disclosures are intended
to enhance the role of the citizenry in governmental
decision-making as well as in checking abuse in
Section 12, Article XIV of the Constitution reads:
government. (Valmonte vs. Belmonte, G.R. No. 74930,
The State shall regulate the transfer and February 13, 1989)
promote the adaptation of technology from all
sources for the national benefit. It shall Q: What is the difference between the doctrines of
encourage widest participation of private groups, Incorporation and Transformation?
local governments, and community-based
organizations in the generation and utilization of
DOCTRINE OF DOCTRINE
science and technology."
INCORPORATION TRANSFORMATION
It means that the rules of
Q: Does the 1987 Constitution provide for a policy of
International Law form Generally accepted rules
transparency in matters of public concern?
part of the law of the of international law are
land and no legislative not per se binding upon
A: Yes. The 1987 Constitution provides for a policy of
action is required to the state but must first
transparency in matters of public interest:
make them applicable in be embodied in
a country. By this legislation enacted by the
1. Section 28, Article II of the 1987 Constitution
doctrine, the Philippines lawmaking body and so
provides: "Subject to reasonable conditions
is bound by generally transformed into
prescribed by law, the State adopts and
accepted principles of municipal law.
implements a policy of full disclosure of all its
international law, which
transactions involving public interest,"
are considered to be
automatically part of our
2. Section 7, Article III states: "The right of the
own laws. (Taada v.
people to information on matters of public
Angara, G.R. No. 118295,
concern shall be recognized, access to official
May 2, 1997)
records, and to documents, and papers
pertaining to official acts, transactions, or
decisions, as well as to government research data
Note: The fact that the international law has been made
used as basis for policy development, shall be
part of the law of the land does not by any means imply the
afforded the citizen, subject to such limitations primacy of international law over national law in the
as may be provided by law." municipal sphere. (Philip Morris, Inc. v. CA, G.R. No. 91332,
July 16, 1993)
3. Section 20, Article VI reads: "The records and
books of account of the Congress shall be Q: Discuss the doctrine of autolimitation.
preserved and be open to the public in
accordance with law, and such books shall be A: While sovereignty has traditionally been deemed
audited by the Commission on Audit which shall absolute and all encompassing on the domestic level,
publish annually an itemized list of amounts paid it is however subject to restrictions and limitations
to and expenses incurred for each member." voluntarily agreed to by the Philippines, expressly or
impliedly as a member of the family of nations.

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19 FACULTY OF CIVIL LAW
Political and International Law

By the doctrine of incorporation, the country is bound 1. Churches, parsonages, etc. actually, directly and
by generally accepted principles of international law, exclusively used for religious purposes shall be exempt
which are considered to be automatically part of our from taxation. (Sec. 28, Par. 3, Art. VI);
2. When a priest, preacher, minister or dignitary is
own laws. (Taada vs. Angara, G.R.No. 118295, May
assigned to the armed forces, or any penal institution
2, 1997)
or government orphanage or leprosarium, public
money may be paid to them (Sec. 29, Par. 2, Art. VI);
Q: How is civilian supremacy ensured? 3. Optional religious instruction for public elementary
and high school students (Sec. 3, Par. 3, Art. VI);
A: 4. Filipino ownership requirement for education
1. By the installation of the President, the highest institutions, except those established by religious
civilian authority, as the commander-in-chief of groups and mission boards (Sec. 4, Par. 2, Art. XIV).
all the armed forces of the Philippines. (Sec. 18,
Art. VII, 1987 Constitution) Q: What is the Strict Separationist Approach?
2. Through the requirement that members of the
AFP swear to uphold and defend the A: Under this approach, the establishment clause was
Constitution, which is the fundamental law of meant to protect the State from the church, and the
civil government. (Sec. 5, Par. 1, Art. XVI, 1987 States hostility towards religion allows no interaction
Constitution) between the two. (Estrada v. Escritor, A.M. No. P-02-
1651, June 22, 2006)
Note: By civilian supremacy, it is meant that civilian
authority is, at all times, supreme over the military. Q: What is the Strict Neutrality Approach?

Q: Can a person avoid the rendition of military A: It is not hostility towards religion, but a strict
services to defend the State? holding that religion may not be used as a basis for
classification for purposes of governmental action,
A: No. One cannot avoid compulsory military service whether the action confers rights or privileges or
by invoking ones religious convictions or by saying imposes duties or obligations. Only secular criteria
that he has a sick father and several brothers and may be the basis of government action. It does not
sisters to support. Accordingly, the duty of permit, much less require accommodation of
government to defend the State cannot be religious belief in secular programs. (Estrada v.
performed except through an army. To leave the Escritor, A.M. No. P-02-1651, June 22, 2006)
organization of an army to the will of the citizens
would be to make this duty to the Government Q: What is the theory of Benevolent Neutrality?
excusable should there be no sufficient men who
volunteer to enlist therein. The right of the A: Under this theory, the wall of separation is
Government to require compulsory military service is meant to protect the church from the State. It
a consequence of its duty to defend the State and is believes that with respect to governmental actions,
reciprocal with its duty to defend the life, liberty, and accommodation of religion may be allowed, not to
property of the citizen. (People v. Zosa, G.R. No. L- promote the governments favored form of religion,
45892-93, July13, 1938). but to allow individuals and groups to exercise their
religion without hindrance.(Estrada v. Escritor, A.M.
Q: What are the provisions of the Constitution that No. P-02-1651, June 22, 2006)
support the principle of separation of Church and
State? Q: What theory is applied in the Philippines?

A: A: In the Philippine context, the Court categorically


1. The non-establishment clause. (Sec. 5, Art. III) ruled that, the Filipino people, in adopting the
2. Sectoral representation in the House of Constitution, manifested their adherence to the
Representatives. Various sectors may be benevolent neutrality approach that requires
represented except the religious sector. (Sec. 5, accommodations in interpreting the religion clauses.
Par. 2, Art. VI) (Estrada v. Escritor, A.M. No. P-02-1651, June 22,
3. Religious groups shall not be registered as 2006)
political parties. (Sec. 5, Par. 2,Art. IX-C, 1987
Constitution) Q: What are the three kinds of accommodation that
results from free exercise claim?
Note: Exceptions to the above-mentioned rule are the
following provisons : A: Those which are:

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2013 GOLDEN NOTES 20
GENERAL CONSIDERATIONS

1. Found to be constitutionally compelled, i.e. Q: What is the purpose of separation of powers?


required by the Free Exercise Clause
(mandatory); A: The purpose is to:
2. Discretionary or legislative, i.e. not required by
the Free Exercise Clause (permissive); 1. Secure action
3. Prohibited by the religion clauses (prohibited). 2. Forestall over-action
3. Prevent despotism
Note: Based on the foregoing, and after holding that 4. Obtain efficiency
the Philippine Constitution upholds the benevolent
neutrality doctrine which allows for accommodation, Note: To prevent the concentration of authority in one
the Court laid down the rule that in dealing with person or group of persons that might lead to irreparable
cases involving purely conduct based on religious error or abuse in its exercise to the detriment of republican
institutions. The purpose was not to avoid friction, but, by
belief, it shall adopt the strict-compelling State
means of the inevitable friction incident to the distribution
interest test because it is most in line with the
of governmental powers among the three departments, to
benevolent neutrality-accommodation. save the people from autocracy.

Q: Distinguish mandatory accommodation, Q: What are the powers vested in the three
permissive accommodation, and prohibited branches of government?
accommodation.
A:
A: EXECUTIVE LEGISLATIVE JUDICIARY
MANDATORY PERMISSIVE PROHIBITED Implementation Interpretation of
ACCOMODATION ACCOMODATION ACCOMMODATION Making of laws
of laws laws
Based on the Means that the Results when the (Power of the
(Power of the (Power of judicial
premise that state may, but is Court finds no basis purse)
sword) review)
when religious not required to, for a mandatory
conscience accomodate accommodation, or Note: Legislative power is given to the Legislature whose
conflicts with a religious it determines that members hold office for a fixed term (Sec. 1, Art. VI);
government interests. the legislative executive power is given to a separate Executive who holds
obligation or accommodation office for a fixed term (Sec. 1, Art. VII); and judicial power is
prohibition, the runs afoul of the held by an independent Judiciary. (Sec. 1, Art. VIII)
government establishment or
sometimes may the free exercise Q: A group of losing litigants in a case decided by the
have to give way. clause. In this case, SC filed a complaint before the Ombudsman
This the Court finds that charging the Justices with knowingly and
accomodation establishment deliberately rendering an unjust decision in utter
occurs when all concerns prevail violation of the penal laws of the land. Can the
three conditions over potential Ombudsman validly take cognizance of the case?
of the compelling accommodation
State interest interests. A: No. Pursuant to the principle of separation of
test are met. powers, the correctness of the decisions of the SC as
final arbiter of all justiciable disputes is conclusive
Note: The purpose of accommodations is to remove a upon all other departments of the government; the
burden on, or facilitate the exercise of, a persons or Ombudsman has no power to review the decisions of
institutions religions. the SC by entertaining a complaint against the
Justices of the SC for knowingly rendering an unjust
SEPARATION OF POWERS decision. (In re: Laureta, G.R. No. L-68635, May 14,
1987)
Q: What is the Doctrine of Separation of Powers?
Q: May the RTC or any court prohibit a committee of
A: In essence, separation of powers means that the the Senate like the Blue Ribbon Committee from
legislation belongs to the Congress, execution to the requiring a person to appear before it when it is
executive, and settlement of legal controversies to conducting investigation in aid of legislation?
the judiciary. Each is therefore prevented from
invading the domain of the others. A: No, because that would be violative of the
principle of separation of powers. The principle

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21 FACULTY OF CIVIL LAW
Political and International Law

essentially means that legislation belongs to LEGISLATIVE CHECK


Congress, execution to the Executive and settlement Executive Judiciary
of legal controversies to the Judiciary. Each is
Override the veto of the Revoke or amend the
prevented from invading the domain of the others.
President decisions by either:
(Senate Blue Ribbon Committee v. Majaducon, G.R.
-Enacting a new law
No. 136760, July29, 2003) -Amending the old law
-Giving it certain definition
Q: What is the principle of Blending of Powers?
and interpretation
different from the old.
A: It refers to an instance when powers are not
Reject certain Impeachment of SC
confined exclusively within one department but are
appointments made by members
assigned to or shared by several departments.
the president
Examples of the blending of powers are the following: Revoke the proclamation Define, prescribe,
a. Power of appointment which can be exercised by of martial law or apportion jurisdiction of
each department and be rightfully exercised by suspension of the lower courts:
each department over its own administrative privilege of the writ of -Prescribe the
personnel; habeas corpus qualifications of lower
b. General Appropriations Law President prepares court judges
the budget which serves as the basis of the bill -Impeachment
adopted by Congress; -Determination of
c. Amnesty granted by the President requires the salaries of judges.
concurrence of the majority of all the members Impeachment
of the Congress; and Determine the salaries of
d. COMELEC does not deputize law-enforcement the president or vice
agencies and instrumentalities of the president
government for the purpose of ensuring free,
orderly, honest, peaceful and credible elections Q: How does the Judiciary check the other two
alone (consent of the President is required) branches?

CHECKS AND BALANCES A: It may declare (through the SC as the final arbiter)
the acts of both the legislature and executive as
Q: What is the principle of Checks and Balances? unconstitutional or invalid so long as there is grave
abuse of discretion.
A: It allows one department to resist encroachments
upon its prerogatives or to rectify mistakes or Note: The first and safest criterion to determine whether a
excesses committed by the other departments. given power has been validly exercised by a particular
department is whether the power has been constitutionally
Q: How does the Executive check the other two conferred upon the department claiming its exercise.
However, even in the absence of express conferment, the
branches?
exercise of the power may be justified under the Doctrine
of Necessary Implication - the grant of express power
A: carried with it all other powers that may be reasonably
EXECUTIVE CHECK inferred from it.
Legislative Judiciary
Through its veto Through its power of pardon, it DELEGATION OF POWERS
power may set aside the judgment of
the judiciary. Q: Can a delegated power be re-delegated?
Also by power of appointment
power to appoint members of A:
the Judiciary. GR: No. Delegated power constitutes not only a right
but a duty to be performed by the delegate through
Q: How does the Legislature check the other two the instrumentality of his own judgment and not
branches? through the intervening mind of another.

A: XPN: Permissible delegations: PETAL

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2013 GOLDEN NOTES 22
GENERAL CONSIDERATIONS

1. Delegation to the People through initiative Q: What are the two tests to determine whether the
and referendum. (Sec. 1, Art. VI, 1987 delegation of legislative power is valid or not?
Constitution)
A:
2. Emergency powers delegated by Congress to a. Completeness Test The law must be complete
the President. (Sec. 23(2), Art. VI) in all essential terms and conditions when it
leaves the legislature so that there will be
Note: The conditions for the vesture of nothing left for the delegate to do when it
emergency powers are the following: reaches him except to enforce it.
a. There must be war or other b. Sufficient Standard Test If the law does not
national emergency. spell out in detail the limits of the delegates
b. The delegation is for a limited authority, it may be sustained if delegation is
period only. made subject to a sufficient standard.
c. Delegation is subject to
restrictions as Congress may Note: The sufficient standard test maps out the boundaries
prescribe. of the delegates authority and indicating the circumstances
d. Emergency powers must be under which it is to be pursued and effected. Its purpose is
to prevent total transference of legislative power).
exercised to carry a national policy
declared by Congress.
Q: What is invalid delegation of legislative power?
3. Congress may delegate Tariff powers to the
President. (Sec. 28 (2),Art. VI) A: If there are gaps that will prevent its enforcement,
the delegate is given the opportunity to step into the
Note: The Tariff and Customs Code is the shoes of the legislature and exercise discretion in
enabling law that grants such powers to the order to repair the omissions.
president.
Note: This is tantamount to an abdication of power in favor
The power to impose tariffs in the first place is of the delegate, which is in violation of the doctrine of
not inherent in the President but arises only separation of powers.
from congressional grant. Thus, it is the
prerogative of Congress to impose limitations Q: What is the distinction between the Presidents
and restrictions on such powers which do not authority to declare a state of national emergency
normally belong to the executive in the first and her authority to exercise emergency powers?
place. (Southern Cross Cement Corporation v.
Philippine Cement Manufacturing Corp., G.R. No.
A: The Presidents authority to:
158540, August 3, 2005)

4. Delegation to Administrative bodies also DECLARE A STATE OF EXERCISE EMERGENCY


known as the power of subordinate NATIONAL EMERGENCY POWERS
legislation/ quasi-legislative powers. Granted by the Requires a delegation
Constitution, no from Congress. (David, et
This refers to the authority vested by legitimate objection can al. v. Gloria Macapagal-
Congress to the administrative bodies to be raised. Arroyo, et al., G.R. No.
fill in the details which Congress cannot 171396, May 3, 2006)
provide due to lack of opportunity or
competence. This includes the making of Note: Conferment of
supplementary rules and regulations. They emergency powers on the
President is not mandatory
have the force and effect of law.
on Congress.
Note: Congress can only delegate rule-making
power to administrative agencies. FORMS OF GOVERNMENT

5. Delegation to Local Governments It is not Q: What is the system of government in the


regarded as a transfer of general legislative Philippines?
power, but rather as the grant of authority
to prescribe local regulations. A: The Philippines adheres to the presidential system.

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23 FACULTY OF CIVIL LAW
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Q: What is the principal identifying feature of a 1. De jure government - a government truly and
presidential form of government? lawfully established by the Constitution of a State
but which having been in the meantime
A: The principal identifying feature of a presidential displaced is actually cut off from power or
form of government is the separation of powers control.
doctrine.
2. De facto government - a government of fact; one
Note: In presidential system, the President is both the actually exercising power and control in the State
head of State and the head of government. as opposed to the true and lawful government.

Q: What are the essential characteristics of a Q: What are the kinds of a de facto government?
parliamentary form of government?
A:
A: 1. De facto proper government that gets
1. The members of the government or cabinet or possession and control of, or usurps, by force or
the executive arm are, as a rule, simultaneously by the voice of the majority, the rightful legal
members of the legislature; government and maintains itself against the will
2. The government or cabinet consisting of the of the latter;
political leaders of the majority party or of a
coalition who are also members of the 2. Government of paramount force established
legislature, is in effect a committee of the and maintained by military forces who invade
legislature; and occupy a territory of the enemy in the course
3. The government or cabinet has a pyramidal of war; and
structure at the apex of which is the Prime
Minister or his equivalent; 3. Independent government established by the
4. The government or cabinet remains in power inhabitants of the country who rise in
only for so long as it enjoys the support of the insurrection against the parent State. (Kop Kim
majority of the legislature; Cham v. Valdez Tan Key, G.R. No. L- 5, September
5. Both the government and the legislature are 17, 1945)
possessed of control devices which each can
demand of the other immediate political
responsibility. In the hands of the legislature is
the vote of non-confidence (censure) whereby
government may be ousted. In the hands of the
government is the power to dissolve the
legislature and call for new elections.

Q: What are the functions of the Government?

A:
1. Constituent mandatory for the government to
perform because they constitute the very bonds
of society.
2. Ministrant intended to promote the welfare,
progress and prosperity of the people.

Note: Distinction of function is no longer relevant because


the Constitution obligates the State to promote social
justice and has repudiated the laissez faire policy (ACCFA v.
Federation of Labor Unions, G.R. No. L-221484, November
29, 1969).

Q: What are the classifications of government on the


basis of legitimacy?

A:

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2013 GOLDEN NOTES 24
LEGISLATIVE DEPARTMENT

LEGISLATIVE DEPARTMENT restrain the plenary powers of Congress to amend,


revise or repeal the laws it had passed.
WHO MAY EXERCISE LEGISLATIVE POWER
While a supermajority is not a total ban against
repeal, it is a limitation in excess of what the
Q: Who may exercise legislative power?
Constitution requires on the passage of bills and is
constitutionally obnoxious because it significantly
A:
constricts the future legislators room for action and
1. Congress
flexibility. (Datu Michael Abas Kida, et al. v. Senate of
2. Regional/Local Government Units
the Philippines, et al. G.R. No. 196271, October 18,
3. The People through initiative and referendum.
2011)
Q: What are the limitations on the legislative power
Note: Every legislative body may modify or abolish the acts
of Congress? passed by itself or its predecessors. This legislature cannot
bind a future legislature to a particular mode of repeal. It
A: cannot declare in advance the intent of subsequent
1. Substantive: limitations on the content of laws. legislatures or the effect of subsequent legislation upon
2. Procedural: limitations on the manner of passing existing statutes. (Datu Michael Abas Kida, et al. v. Senate
laws. of the Philippines, et al. G.R. No. 196271, October 18, 2011)
3. Congress cannot pass irrepealable laws.
4. Congress, as a general rule, cannot delegate its Q: Who exercises local legislative power and their
legislative power. presiding officer (PO)?

XPN: See Delegation of Legislative Powers. A:


Sangguniang
Province Vice-governor
Q: Is the supermajority vote requirement under R.A. panlalawigan
9054, the second Organic Act of ARMM which reset Sangguniang City vice-
City
the regular elections for the ARMM regional officials panlungsod mayor
to the second Monday of September 2001 Municipal
Municipality Sangguniang bayan
unconstitutional by giving it a character of an vice-mayor
irrepealable law? Sangguniang Punong
Barangay
barangay barangay
A: Yes. Even assuming that RA No. 9333 and RA No.
10153 did in fact amend RA No. 9054, the Note: The PO shall vote only to break a tie. (Sec. 49, Par.
supermajority (2/3) voting requirement required (a), R.A. 7160).
under Section 1, Article XVII of RA No. 9054 has to be
struck down for giving RA No. 9054 the character of Q. What are the requisites for the validity of local
an irrepealable law by requiring more than what the ordinance?
Constitution demands.
A: GC-not-CUPPU
Section 16(2), Article VI of the Constitution provides 1. Must not Contravene the constitution and any
that a majority of each House shall constitute a statute
quorum to do business. In other words, as long as 2. Must not be Unfair or oppressive
majority of the members of the House of 3. Must not be Partial or discriminatory
Representatives or the Senate are present, these 4. Must not Prohibit, but may regulate trade
bodies have the quorum needed to conduct business 5. Must not be Unreasonable
and hold session. Within a quorum, a vote of 6. Must be General in application and Consistent
majority is generally sufficient to enact laws or with public policy. (Magtajas vs. Pryce Properties
approve acts. Corporation, Inc, G.R. No. 111097 July 20, 1994)

In contrast, Section 1, Article XVII of RA No. 9054 Q: What are the classes of legislative power?
requires a vote of no less than two-thirds (2/3) of the
Members of the House of Representatives and of the A: ODECO
Senate, voting separately, in order to effectively 1. Original: Possessed by the people in their
amend RA No. 9054. Clearly, this 2/3 voting sovereign capacity i.e. initiative and referendum.
requirement is higher than what the Constitution 2. Delegated: Possessed by Congress and other
requires for the passage of bills, and served to legislative bodies by virtue of the Constitution.

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25 FACULTY OF CIVIL LAW
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3. Constituent: The power to amend or revise the COMELEC Resolution No. 6486 which impose qualifications
Constitution. on senatorial candidates in addition to what the
4. Ordinary: The power to pass ordinary laws. Constitution prescribes. (Social Justice Society vs.
Dangerous Drugs Board, GR No. 157870, Nov. 2, 2008)
HOUSES OF CONGRESS
Q: Discuss the disqualifications of members of
Congress.
The Congress is bicameral in nature. It is composed of:
A:
1. Senate
SENATE HOUSE OF REPRESENTATIVES
2. House of Representatives
a) District representatives No Senator shall Shall not serve for more
b) Party-list system serve for more than than three (3) consecutive
two (2) consecutive terms. Voluntary
Q: Discuss the composition, qualifications, and term terms. Voluntary renunciation of the office
of office of members of Congress. renunciation of the for any length of time shall
office for any length not be considered as an
A: of time shall not be interruption in the
considered as an continuity of his service for
HOUSE OF
SENATE interruption in the the full term for which he
REPRESENTATIVES
continuity of his was elected. (Sec. 7, Article
Composition
service for the full VI).
24 Senators (elected at Not more than 250 term for which he
large by qualified Filipino members, unless was elected (Section
voters) otherwise provided by law. 4, Article VI).
Qualifications One who has been declared by competent authority
1. Natural-born citizen of 1. Natural-born citizen of as insane or incompetent.
the Philippines; the Philippines;
2. At least 35 years of 2. Except youth party-list One who has been sentenced by final judgment for:
age on the day of representatives, at least a. Subversion;
election; 25 years of age on the b. Insurrection;
3. Able to read and day of election; c. Rebellion;
write; 3. Able to read and write; d. Any offense for which he has been sentenced to a
4. A registered voter; 4. Except the party-list penalty of not more than 18 months; or
5. Resident of the representatives, a e. A crime involving moral turpitude, unless given
Philippines for not less registered voter in the plenary pardon o granted amnesty. (Section 12, BP
than 2 years district in which he shall 881)
immediately be elected;
proceeding the day of 5. Resident thereof for a Q: How can members of Congress be removed from
election. period of not less than 1 their respective offices?
year immediately the
day of the election. A:
Term of office MEMBERS OF THE HOUSE
SENATORS
OF REPRESENTATIVES
6years, commencing at 3 years, commencing at
th
noon on the 30 day of noon on the 30 day of
th Expulsion by the Senate Expulsion by the House is
June next following their June next following their with the concurrence of with the concurrence of
election. election. 2/3 of all its members. 2/3 of all its members.
(Sec. 16, par. 3, Article VI) (Sec. 16, par. 3, Art. VI)
Term limit: Only up to 2 Term limit: No member of
consecutive terms. the HoR shall serve for Q: Can Congress or COMELEC impose an additional
However, they may serve more than 3 consecutive qualification for candidates for senator?
for more than 2 terms terms.
provided that the terms A: No. The Congress cannot validly amend or
are not consecutive. otherwise modify these qualification standards, as it
cannot disregard, evade, or weaken the force of a
Note: The Court held the unconstitutionality of the constitutional mandate, or alter or enlarge the
provision on mandatory drug testing for candidates of Constitution (Cordora v. COMELEC, G.R. No. 176947,
public offce of Sec. 36(g) of RA 9165 otherwise known as February 19, 2009; Social Justice Society v. DDB and
the Comprehensive Dangeous Drugs Act of 2002 and

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LEGISLATIVE DEPARTMENT

PDEA, G.R Nos. 157870, 158633, 161658, November he/she lost during the
3, 2008). previous election.
A change in affiliation A change in affiliation
Q: What is the rule on voluntary renunciation of within months prior to within 6 months prior to
office for any length of time? election does not election prohibits the
prevent a district party-list representatives
A: It shall not be considered as an interruption in the representative from from listing as
continuity of his service for the full term for which he running under his new representative under his
was elected (Secs. 4 and 7, Article VI). party. new party or
organization.
Q: What is the composition of the HoR?
Q: Who are district representatives?
A:
DISTRICT PARTY-LIST A: District representatives are those who were
REPRESENTATIVE REPRESENTATIVE elected from legislative districts apportioned among
Elected according to Elected nationally with the provinces, cities and the Metropolitan Manila
legislative district by the party-list organizations area.
constituents of such garnering at least 2% of
district. all votes cast for the Q: How are legislative districts apportioned?
party-list system entitled
to 1 seat, which is A: Legislative districts are apportioned among the
increased according to provinces, cities, and the Metropolitan Manila area.
proportional They are apportioned in accordance with the number
representation, but is in of their respect inhabitants and on the basis of a
no way to exceed 3 seats uniform and progressive ratio. (Sec. 5, Art. VI,
per organization. 1987Constitution)
Must be a resident of his No special residency
legislative district for at requirement. Each city with a population of at least 250,000 shall
least 1 year immediately have at least one representative. Each province shall
before the election. have at least one representative.
Elected personally, by Voted upon by party or
name. organization. It is only While Section 5(3) of Art. VI of the Constitution
when a party is entitled requires a city to have a minimum population of
to representation that it 250,000 to be entitiled to one representative, it does
designates who will sit as not have to increase its population by another
representative. 250,000 to be entitled to an additional district.
Does not lose seat if If he/she changes party (Senator Aquino III v. COMELEC, G.R. No. 189793,
he/she changes party or or affiliation, loses his April7, 2010)
affiliation. seat, in which case
he/she will be Note: The question of the validity of an apportionment law
substituted by another is a justiciable question. (Macias v. Comelec,G.R. No. L-
qualified person in the 18684, September 14, 1961)
party /organization
based on the list Q: What are the conditions for apportionment?
submitted to the
COMELEC. A:
1. Elected from legislative districts which are
In case of vacancy, a In case of vacancy, a
apportioned in accordance with the number of
special election may be substitution will be made
inhabitants of each area and on the basis of a
held provided that the within the party, based
uniform and progressive ratio.
vacancy takes place at on the list submitted to
least 1 year before the the COMELEC.
2. Uniform Every representative of Congress shall
next election.
represent a territorial unit with more or less
A district representative A party-list
250,000 population. All the other representatives
is not prevented from representative cannot sit
shall have the same or nearly the same political
running again as a if he ran and lost in the
constituency so much so that their votes will
district representative if previous election.
constitute the popular majority.

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3. Progressive It must respond to the change in compact and adjacent territory (Bernas, Reviewer in
times. The number of House representatives Philippine Constitution, p. 186)
must not be so big as to be unwieldy. (Let us say,
there is a growth in population. The ratio may Q: Discuss the Party-List System.
then be increased. From 250,000 constituents/1
representative it may be reapportioned to 300, A: Party-list representatives shall constitute 20% of
000 constituents/1 representative). the total number of representatives in the House of
Representatives. (Sec. 5, Par. 2, Art. VI, 1987
4. Each city with a population of at least 250,000 or Constitution).
each province shall at least have one
representative. Party-list system is a mechanism of proportional
representation in the election of representatives to
Note: GR: There must be proportional representation the HoR from national, regional and sectoral parties
according to the number of their or organizations or coalitions thereof registered with
constituents/inhabitants. the COMELEC.
XPN: In one city-one representative/one
The partylist system intends to make the
province-one representative rule.
marginalized and the underrepresented not merely
5. Legislative districts shall be re-apportioned by passive recipients of the States benevolence, but
Congress within 3 years after the return of each active participants in the mainstream of
census. (Senator Aquino III v. COMELEC, G.R. No. representative democracy. (Ang BagongBayani-OFW
189793, April7, 2010.) Labor Party v. COMELEC, G.R. No. 147589, June26,
2001)
Q: What is the reason for such rule?
A free and open party system shall be allowed to
A: The underlying principle behind the rule for evolve according to the free choice of the people.
apportionment is the concept of equality of (Sec. 2, Par. 5, Art. IX-C, 1987 Constitution) Political
representation which is a basic principle of parties registered under the party-list system shall be
republicanism. One mans vote should carry as much entitled to appoint poll watchers in accordance with
weight as the vote of every other man. law. (Sec. 8, Art. IX-C)

Note: Section 5 provides that the House shall be composed Q: What is the purpose of party-list system?
of not more than 250 members unless otherwise provided
by law. Thus, Congress itself may by law increase the A: The party-list system is intended to democratize
composition of the HR. (Tobias v. Abalos, G.R. No. L- political power by giving political parties that cannot
114783, December 8, 1994) win in legislative district elections a chance to win
seats in the HoR (PAGLAON CASE)
As such, when one of the municipalities of a congressional
district is converted to a city large enough to entitle it to
Q: Discuss the different parties under the party-list
one legislative district, the incidental effect is the splitting
system.
of district into two. The incidental arising of a new district in
this manner need not be preceded by a census. (Tobias v.
Abalos, G.R. No. L-114783, December 8, 1994) A: No votes cast in favor of political party,
organization or coalition shall be valid except for
Q: How should the reapportionment be made? those registered under the party-list system.

A: Reapportionment can be made thru a special law. 1. Political party organized group of citizens
(Mariano, Jr. vs. COMELEC, G.R. No. 118577, March 7, advocating ideology or platform, principles and
1995) policies for the general conduct of government
and which, as the most immediate means of
Q: What is Gerrymandering? Is it allowed? securing their adoption, regularly nominates and
supports certain of its leaders and members as
A: Gerrymandering is the formation of one legislative candidate in public office. (Bayan Muna v.
district out of separate territories for the purpose of COMELEC, G.R. No. 147612, June 28, 2001)
favoring a candidate or a party. It is not allowed 2. National party its constituency is spread over
because the Constitution provides that each district the geographical territory of at least a majority of
shall comprise, as far as practicable, contiguous, regions.

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3. Regional party its constituency is spread over (Atong Paglaum, Inc. v. COMELEC, G.R. 203766, April
the geographical territory of at least a majority of 2, 2013).
the cities and provinces comprising the region.
4. Sectoral party organized group of citizens Q: Does the party-list law require national and
belonging to any of the following sectors: labor, regional parties or organizations to represent the
peasant, fisherfolk, urban poor, indigenous, marginzalized and underrepresented sectors?
cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers and A: No. To require all national and regional parties
professionals, whose principal advocacy pertains under the party-list system to represent the
to the special interest and concerns of their marginalized and underrepresented is to deprive
sectors. and exclude, by judicial fiat, ideology-based and
5. Sectoral Organization refers to a group of cause-oriented parties from the party-list system.
citizens who share similar physical attributes or How will these ideology-based and cause-oriented
characteristics, employment, interest or parties, who cannot win in legislative district
concerns. elections, participate in the electoral process if they
6. Coalition refers to an aggregation of duly are excluded from the party-list system? To exclude
registered national, regional, sectoral parties or them from the party-list system is to prevent them
organizations for political and/or election from joining the parliamentary struggle, leaving as
purposes. their only option armed struggle. To exclude them
from the party-list system is, apart from being
Q: Is the party-list system solely for the benefit of obviously senseless, patently contrary to the clear
sectoral parties? intent and express wording of the 1987 Constitution
and RA 27941 (Atong Paglaum, Inc. v. COMELEC, G.R.
A: No. Section 5(1), Article VI of the Constitution is 203766, April 2, 2013).
crystal-clear that there shall be a party-list system of
negistered national, regional, and sectoral parties or Q: Can major political parties participate in the
organizations. The commas aafter the words party-list elections?
national(,) and regional(,) separate national and
regional parties from sectoral parties. Had the A: No. Major political parties cannot participate in the
framers of the 1987 Constitution intended national party-list elections since they neither lack well-
and regional parties to be at the same time sectoral, defined political constituencies nor represent
they would have stated national and regional marginalized and underrepresented sectors (Atong
sectoral parties. They did not, precisely because it Paglaum, Inc. v. COMELEC, G.R. 203766, April 2,
was never their intention to make the party-list 2013).
system exclusively sectoral.
Q: Can sectoral wings of major political parties
What the framers intended, and what they expressly participate in the party-list election?
wrote in Section 5(1), could not be any clearer: the
party-list system is composed of three different A: Yes. The participation of major political parties
groups, and the sectoral parties belong to only one of through their sectoral wings, a majority of whose
the three groups. The text of Section 5(1) leaves no members are marginalized and underrepresented
room for any doubt that national and regional parties or lacking in well-defined political constituencies,
are separate from sectoral parties (Atong Paglaum, will facilitate the entry of the marginalized and
Inc. v. COMELEC, G.R. 203766, April 2, 2013). underrepresented and those who lack well-defined
political constituencies as members of the HoR
Q: What groups compose the party-list system? (Atong Paglaum, Inc. v. COMELEC, G.R. 203766, April
2, 2013).
A: The party-list system is composed of three
different groups: (1) national parties or organizations; Q: What are the qualifications of party-list
(2) regional parties or organizations; and (3) sectoral nominees?
parties or organizations. National and regional parties
or organizations are different from different parties A: A party-list nominee must be a bona fide member
or organizations. National and regional parties or of the party or organization which he or she seeks to
organizations need not be organized along sectoral represent. In the case of sectoral parties, to be a bona
lines and need not represent any particular sector fide party list nominee one must either belong to
the sector represented, or have a track record of

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advocacy for such sector (Atong Paglaum, Inc. v. belong to the sector they represent. The
COMELEC, G.R. 203766, April 2, 2013). nominees of sectoral parties or organizations
that represent the marginalized and
Q: What are the guidelines in determining who may underrepresented, or that represent those
participate in the party-list elections? who lack well-defined political
constituencies, either must belong to their
A: In determining who may participate in the coming respective sectors, or must have a track record
13 May 2013 and subsequent party-list elections, the of advocacy for their respective sectors. The
COMELEC shall adhere to the following parameters: nominees of national and regional parties or
1. Three different groups may participate in the organizations must be bona-fide members of
party-list system: (1) national parties or such parties or organizations.
organizations, (2) regional parties or
organizations, and (3) sectoral parties or 6. National, regional, and sectoral parties or
organizations. organizations shall not be disqualified if some
of their nominees are disqualified, provided
2. National parties or organizations and regional that they have at least one nominee who
parties or organizations do not need to remains qualified (Atong Paglaum, Inc. v.
organize along sectoral lines and do not need COMELEC, G.R. 203766, April 2, 2013).
to represent any marginalized and
underrepresented sector.
Q: Who shall be voted in a party-list election?
3. Political parties can participate in party-list
A: The registered national, regional or sectoral party-
elections provided they register under the
list groups or organizations and not their candidates.
party-list system and do not field candidates in
legislative district elections. A political party,
Q: Who are elected into office In a party-list
whether major or not, that fields candidates in
election?
legislative district elections can participate in
party- list elections only through its sectoral
A: It is the party-list representatives who are elected
wing that can separately register under the
into office, not their parties or organizations. These
party-list system. The sectoral wing is by itself
representatives are elected, however, through that
an independent sectoral party, and is linked to
peculiar party-list system that the Constitution
a political party through a coalition.
authorized and that Congress by law established
where the voters cast their votes for the
4. Sectoral parties or organizations may either be organizations or parties to which such party-list
marginalized and underrepresented or representatives belong. (Abayon v. HRET, G.R. No.
lacking in well-defined political 189466, February 11, 2010)
constituencies. It is enough that their
principal advocacy pertains to the special Q: What are the qualifications of party-list
interest and concerns of their sector. The nominees?
sectors that are marginalized and
underrepresented include labor, peasant, A:
fisherfolk, urban poor, indigenous cultural 1. Natural- born citizen of the Philippines;
communities, handicapped, veterans, and 2. Registered voter;
overseas workers. The sectors that lack well- 3. Resident of the Philippines for at least 1 year
defined political constituencies include immediately preceding the day of the election;
professionals, the elderly, women, and the 4. Able to read and write;
youth. 5. Bona fide member of the party or organization
which he seeks to represent at least 90 days
5. A majority of the members of sectoral parties preceding election day;
or organizations that represent the 6. At least 25 years of age. (not more than 30 years
marginalized and underrepresented must old for nominees for youth sector)
belong to the marginalized and
underrepresented sector they represent. Note: There is absolutely nothing in R.A. 7941 that prohibits
Similarly, a majority of the members of COMELEC from disclosing or even publishing through
sectoral parties or organizations that lack mediums other than the Certified List the names of the
well-defined political constituencies must party-list nominees. As may be noted, no national security

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LEGISLATIVE DEPARTMENT
or like concerns is involved in the disclosure of the names representatives to the wisdom of the legislature.
of the party-list groups in question (Bantay RA 7941 v. (BANAT v. COMELEC, G.R. No. 179271, April21, 2009)
COMELEC, G.R. No. 177271; G.R. No. 177314, May 4, 2007)
Q: How shall the party-list representative seats be
Q: What is the effect of change of affiliation of any allocated?
party-list representative?
A: In determining the allocation of seats for party-list
A: Any elected party-list representative who changes representatives under Section 11 of R.A. No. 7941,
his political party or sectoral affiliation during his the following procedure shall be observed:
term of office shall forfeit his seat; provided that if he
changes his political party or sectoral affiliation within 1. The parties, organizations, and coalitions shall be
6 months before an election, he shall not be eligible ranked from the highest to the lowest based on
for nomination as party-list representative under his the number of votes they garnered during the
new party or organization (Amores v. HRET, G.R. No. elections.
189600, June29, 2010). 2. The parties, organizations, and coalitions
receiving at least 2% of the total votes cast for
Note: In case of vacancy in the seat reserved for party-list
the party-list system shall be entitled to one
representatives, the vacancy shall be automatically filled by
guaranteed seat each.
the next representative from the list of nominees in the
order submitted to the COMELEC by the same party, 3. Those garnering sufficient number of votes,
organization or coalition, who shall serve for the unexpired according to the ranking in paragraph 1, shall be
term. If the list is exhausted, the party, organization or entitled to additional seats in proportion to their
coalition concerned shall submit additional nominees. total number of votes until all the additional
seats are allocated.
Q: What is the formula mandated by the 4. Each party, organization, or coalition shall be
Constitution in determining the number of party-list entitled to not more than 3 seats.
representatives?
Note: In computing the additional seats, the guaranteed
A: The House of Representatives shall be composed seats shall no longer be included because they have already
of not more than 250 members, unless otherwise been allocated, at one seat each, to every two percent.
Thus, the remaining available seats for allocation as
fixed by law. (Sec. 5, Par. 1, Article VI, 1987
additional seats are the maximum seats reserved under
Constitution).
the party-list system less the guaranteed seats. Fractional
seats are disregarded in the absence of a provision in R.A.
The number of seats available to party-list 7941 allowing for a rounding off of fractional seats. (BANAT
representatives is based on the ratio of party-list v. COMELEC, G.R. No. 179271, April21, 2009)
representatives to the total number of
representatives. Accordingly, we compute the Q: Does the Constitution preclude Congress from
number of seats available to party-list representatives increasing its membership?
from the number of legislative districts.
A: No. The Constitution does not preclude Congress
from increasing its membership by passing a law,
other than a general re-apportionment law. Thus, a
law converting a municipality into a highly urbanized
city automatically creates a new legislative district,
and consequently increases the membership of the
HoR (Mariano v. COMELEC, G.R No. 118577, March 7,
1995).

This formula allows for the corresponding increase in Q: Is the continued operation of the two percent
the number of seats available for party-list threshold prescribed in Section 11 (b) R.A. 7941 with
representatives whenever a legislative district is respect to the allocation of additional seats valid?
created by law.
A: No. The Court therefore strikes down the two
After prescribing the ratio of the number of party-list percent threshold only in relation to the distribution
representatives to the total number of of the additional seats as found in the second clause
representatives, the Constitution left the manner of of Section 11 (b) of RA 7941. The two percent
allocating the seats available to party-list threshold presents an unwarranted obstacle to the

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31 FACULTY OF CIVIL LAW
Political and International Law

full implementation of Section 5(2), Article VI of the A: It is not for the benefit of the officials; rather, it is
Constitution and prevents the attainment of the to protect and support the rights of the people by
broadest possible representation of party, sectoral ensuring that their representatives are doing their
or group interests in the House of Representatives. jobs according to the dictates of their conscience. It is
(BANAT v. COMELEC, G.R. No. 179271, April 21, 2009) indispensable no matter how powerful the offended
party is.
Note: The 2% threshold is constitutional insofar as the
determination of the assured seat is concerned. Q: May a congressman who committed an offense
punishable for not more than 6 years, but is not
Q: Is the Philippine Mines Safety Environment attending session, be arrested?
Association v. COMELEC ruling, also known as the
Minero Ruling, providing that a party-list A: No. So long as he is an incumbent congressman,
organization that does not participate in an election and so long as Congress is in session, whether or not
necessarily gets, by default, less than 2% of the he is attending it, he shall be immune from arrest.
party-list votes a valid application of R.A. 7941? (People v. Jalosjos, G.R. Nos. 132875-76, Feb. 3,
2000).
A: No. The Minero Ruling is an erroneous application
of Section 6(8) of R.A. 7941 [also known as the Party- Q: Can a senator-lawyer be disbarred or disciplined
List System Act]; hence it cannot sustain PGBIs by the Supreme Court for statements made during a
delisting from the roster of registered national, privilege speech?
regional or sectoral parties, organizations or
coalitions under the party-list system. A: No. Indeed, the senator-lawyers privilege speech
is not actionable criminally or in a disciplinary
Its basic defect lies in its characterization of the non- proceeding under the Rules of Court. The Court,
participation of a party-list organization in an election however, would be remiss in its duty if it let the
as similar to a failure to garner the 2% threshold Senators offensive and disrespectful language that
party-list vote. What Minero effectively holds is that a definitely tended to denigrate the institution pass by.
party list organization that does not participate in an It is imperative on the Courts part to re-instill in
election necessarily gets, by default, less than 2% of Senator/Atty. Santiago her duty to respect courts of
the party-list votes. To be sure, this is a confused justice, especially this Tribunal, and remind her anew
interpretation of the law, given the laws clear and that parliamentary non-accountability thus granted to
categorical language and the legislative intent to treat members of Congress is not to protect them against
the two scenarios differently. Minero did unnecessary prosecutions for their own benefit, but to enable
violence to the language of the law, the intent of the them, as the peoples representatives, to perform the
legislature, and to the rule of law in general. functions of their office without fear of being made
responsible before the courts or other forums outside
Clearly, the Court cannot allow PGBI to be prejudiced the congressional hall. It is intended to protect
by the continuing validity of an erroneous ruling. members of congress against government pressure
Thus, the Court now abandons Minero and strikes it and intimidation aimed at influencing the decision-
out from our ruling case law. (Philippine Guardians making prerogatives of Congress and its members.
Brotherhood, Inc. [PGBI] v. COMELEC, G.R. no. (Pobre v. Sen. Defensor-Santiago, A.C. No. 7399, Aug.
190529, April 29, 2010) 25, 2009)

LEGISLATIVE PRIVILEGES, INHIBITIONS AND Q: Is Congress considered in session during a recess?


DISQUALIFICATIONS
A: No. It is not in session. During a recess, a
Q: What is immunity from arrest? congressman who has committed an offense
punishable by not more than 6 years imprisonment
A: Legislators are privileged from arrest while may be arrested.
Congress is in session with respect to offenses
punishable by up to 6 years of imprisonment. (Sec. Q: Is there immunity from searches?
11, Art. VI of 1987 Constitution)
A: No. The Constitution provides only a privilege from
Q: What is the purpose of parliamentary arrest in order to ensure the attendance of
immunities? Congressmen.

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LEGISLATIVE DEPARTMENT

Q: What is legislative privilege? Congressional Committees duly authorized to


perform its functions as such, at the time of the
A: No member shall be questioned or held liable in performance of the acts in question (Jimenez v.
any forum other than his/her respective Cabangbang, G.R. No. L-15905, Aug. 3, 1966).
Congressional body for any debate or speech in
Congress or in any committee thereof. (Sec. 11, Note: The purpose of the privilege is to ensure the effective
Article VI; Pobre v. Sen. Santiago, A.C.No, 7399, Aug. discharge of functions of Congress. The privilege may be
25, 2009) abused but it is said that such is not so damaging or
detrimental as compared to the denial or withdrawal of
such privilege.
Q: What are the limitations on legislative privilege?
Q: What are the prohibitions attached to a legislator
A:
during his term?
1. Protection is only against forum other than
Congress itself. Thus, for defamatory remarks,
A:
which are otherwise privileged, a member may
1. Incompatible office No senator or member of
be sanctioned by either the Senate or the House
the House of Representatives may hold any other
as the case may be.
office or employment in the Government, or any
subdivision, agency, or instrumentality thereof,
2. The speech or debate must be made in
including government owned and controlled
performance of their duties as members of
corporations or their subsidiaries during his term
Congress.
without forfeiting his seat (Sec. 13, Art.VI)
Q: Can the Sandiganbayan order the preventive
Note: Forfeiture of the seat in Congress shall be
suspension of a Member of the HoR being automatic upon the members assumption of such
prosecuted criminally for the violation of the Anti- other office deemed incompatible with his seat in
Graft and Corrupt Practices Act? Congress. However, no forfeiture shall take place if the
member of Congress holds the other government
A: Yes. The accused cannot validly argue that only his office in an ex-officio capacity.
peers in the House of Representatives can suspend
him because the court-ordered suspension is a 2. Forbidden office Neither shall a senator or a
preventive measure that is different and distinct from member of the House of Representatives be
the suspension ordered by his peers for disorderly appointed to any office which may have been
behaviour which is a penalty. (Paredes, created or the emoluments thereof increased
Jr. v. Sandiganbayan, G.R. No, 118354, Aug. 8, 1995) during the term for which he was elected. (Sec.
13, Art. VI)
Q: What are the two (2) requirements for the
privilege of Speech and Debate to operate? Note: With this, even if the member of the Congress is
willing to forfeit his seat therein, he may not be
appointed to any office in the government that has
A: That
been created or the emoluments thereof have been
1. The remarks must be made while the legislature
increased during his term. Such a position is forbidden
or the legislative committee is functioning, that office. The purpose is to prevent trafficking in public
is, in session; office.
2. They must be made in connection with the
discharge of official duties. The provision does not apply to elective offices.

Q: What does speech or debate encompass? The appointment of the member of the Congress to
the forbidden office is not allowed only during the
term for which he was elected, when such office was
A: It includes utterances made by Congressmen in the
created or its emoluments were increased. After such
performance of their official functions, such as
term, and even if the legislator is re-elected, the
speeches delivered, statements made, or votes cast disqualification no longer applies and he may
in the halls of Congress, while the same is in session, therefore be appointed to the office.
as well as bills introduced in Congress, whether the
same is in session or not, and other acts performed Q. What is the rule on increase in salaries?
by Congressmen, either in Congress or outside the
premises housing its offices, in the official discharge A. No, increase in the salaries shall take effect until
of their duties as members of Congress and of after the expiration of the FULL TERM of all the

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33 FACULTY OF CIVIL LAW
Political and International Law

members of the Senate and the House of of his office.


Representatives approving such increase.
Q: Are legislators required to disclose their assets
Q: What are the particular inhibitions attached to and liabilities?
their office?
A: Yes. All members of the Senate and HoR shall upon
A: assumption of office and as often thereafter as may
1. Senators and Representatives are prohibited be required by law, submit a declaration under oath
from Personally appearing as counsel before of his assets, liabilities and net worth. (Sec. 12, Art.
any court of justice or before the Electoral VI)
Tribunals, or quasi-judicial or other
administrative bodies. (Sec. 14, Art. VI) QUORUM AND VOTING MAJORITIES
2. Upon assumption of office, must make a full
disclosure of financial and business interests. Q: What is a quorum?
Shall notify the House concerned of a potential
conflict in interest that may arise from the filing A: A quorum is such number which enables a body to
of a proposed legislation of which they are transact its business. It is such number which makes a
authors. (Sec. 12, Art. VI) lawful body and gives such body the power to pass a
law or ordinance or any valid act that is binding.
Q: What are the disqualifications attached to their
office and when are they applicable? Alternative Answer:
Quorum is based on the proportion between those
A: physically present and the total membership of the
DISQUALIFICATION APPLICABLE WHEN body.
Cannot hold any other office During his term. If he
or employment in the Govt does so, he forfeits his Note: In computing quorum, members who are outside the
or any subdivision, agency or seat.(Sec. 13, Art.VI) country and thus outside of each Houses jurisdiction are
instrumentality thereof, not included. The basis for determining the existence of a
including GOCCs or their quorum in the Senate shall be the total number of Senators
subsidiaries. (Sec. 13, Art.VI) who are within the coercive jurisdiction of the Senate
(Avelino v. Cuenco, G.R. No. L-2821, March 4, 1949).
Legislators cannot be If the office was created
appointed to any office.(Sec. or the emoluments
Q: What is the effect if there is no quorum?
13, Art.VI) thereof increased
during the term for
A: In the absence of quorum, each House may
which he was elected.
adjourn from day to day and may compel the
(Sec. 13, Art.VI)
attendance of absent members in such manner and
Legislators cannot personally During his term of
under such penalties as each House may provide.
appear as counsel before any office.
court of justice, electoral
Note: The members of the Congress cannot compel
tribunal, quasi-judicial and
absent members to attend sessions if the reason of
administrative bodies. (Sec.
absence is a legitimate one. The confinement of a
14, Art.VI)
Congressman charged with a non-bailable offense
Legislators cannot be During his term of
(more than 6 years) is certainly authorized by law and
financially interested directly office.
has constitutional foundations (People v. Jalosjos,
or indirectly in any contract
G.R. No. 132875-76, February 3, 2000)
with or in any franchise, or
special privilege granted by
Q: What does majority vote mean?
the Government, or any
subdivision agency or
A: Majority refers to more than half of the total or
instrumentality thereof,
aggregate. Although the Constitution provides that
including the GOCC or its
the Speaker and the Senate President shall be elected
subsidiary. (Sec. 14, Art.VI)
by a majority of all members, the Constitution does
Legislators cannot intervene When it is for his not provide that those who will not vote for the
in any matter before any pecuniary benefit or winner (by majority vote) are ipso facto the minority
office of the Govt.(Sec. 14, where he may be called who can elect the minority leader. Majority votes
Art.VI) upon to act on account pertain only to such number or quantity as may be

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LEGISLATIVE DEPARTMENT

required to elect an aspirant as such. There is no 2/3 of the Members of


indication that by such election, the houses are the other House
already divided into the majority camp and the
minority camp. To determine the 2/3 of both Houses voting
Presidents disability after separately (Sec. 11,
Majority vote refers to the political party with the submissions by both the Art.VII)
most number of backings; refer to the party, faction Cabinet and the President
or organization with the most number of votes but
not necessarily more than one half (plurality). Q: Can the courts intervene in the implementation
(Santiago v. Guingona, G.R. No. 134577, Nov. 18, of the internal rules of Congress?
1998)
A: No. As part of their inherent power, Congress can
Q: What are the instances when Congress is voting determine their own rules. Hence, the courts cannot
separately and voting jointly? intervene in the implementation of these rules
insofar as they affect the members of Congress
A: (Osmea v. Pendatun, G.R. No L-17144, Oct. 28, 1960)
SEPARATE JOINT
- Choosing the - When revoking or Q: Who are the elected officers of Congress?
President in case of a extending the
tie(Sec. 4, Art.VII) proclamation A:
- Determining suspending the 1. Senate President
Presidents disability privilege of writ of 2. Speaker of the House
(Sec. 11, Art.VII) habeas corpus (Sec. 3. Such officers as deemed by each house to be
- Confirming 18, Art. VII) necessary
nomination of Vice- - When revoking or
President (Sec. 9, extending the Q: How is election of officers done?
Art.VI) declaration of
- Declaring the martial law (Sec. 18, A: By a majority vote of all respective members
existence of a state of Art.VII). (Sec.16, Par. 1, Art. VI).
war in joint session
(Sec. 23, Art.VI) Q: When is the regular session of Congress?
- Proposing
th
Constitutional A: Congress convenes once every year on the 4
amendments (Sec. 1, Monday of July, unless otherwise provided for by law.
Art.XVII) It continues in session for as long as it sees fit, until
30 days before the opening of the next regular
Q: What are the instances when Congress votes session, excluding Saturdays, Sundays, and legal
other than majority? holidays. (Sec. 15, Art. VI)

A: Q: What are the instances when there are special


INSTANCES WHEN NUMBER OF VOTES sessions?
CONGRESS VOTES REQUIRED
To suspend or expel a 2/3 of all its members A:
member in accordance (Sec. 16,Par. 3,Art.VI) 1. Due to vacancies in the offices of the President
with its rules and and Vice President at 10 oclock a.m. on the third
proceedings day after the vacancies; (Sec. 10,Art.VI)
To enter the Yeas and nays 1/5 of the members 2. To decide on the disability of the President
in the Journal present (Sec. 16, Par. 4, because a majority of all the members of the
Art. VI) cabinet have disputed his assertion that he is
To declare the existence of 2/3 of both houses in able to discharge the powers and duties of his
a state of war joint session voting office; (Sec. 11,Art.VII)
separately (Sec. 23, Art. 3. To revoke or extend the Presidential
VI) Proclamation of Martial Law or suspension of the
privilege of the writ of habeas corpus;(Sec. 18,
To re-pass a bill after 2/3 of the Members of
Art. VII)
Presidential veto the House where it
originated followed by

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35 FACULTY OF CIVIL LAW
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4. Called by the President at any time when for misbehaviour as a member of Congress. (Santiago v.
Congress is not in session; Sec. 15, Art. VI) Sandiganbayan, G.R. No. 128055, April 18, 2001).
5. To declare the existence of a state of war in a
joint session, by vote of 2/3rds of both Houses; ELECTORAL TRIBUNAL AND THE
(Sec. 23, Par. 1, Art. VI) COMMISSION ON APPOINTMENTS
6. When the Congress acts as the Board of
Canvassers for the Presidential and Vice- Q: What is the composition of the electoral tribunal
Presidential elections; (Sec. 4, Art. VII) (ET)?
7. During impeachment proceedings. (Sec. 3, Par. 4
and 6, Art. XI) A:
1. 3 Supreme Court Justices designated by the Chief
Q: What is a Mandatory Recess? Justice;
2. 6 members of the Chamber concerned (Senate or
A: A mandatory recess is prescribed for the 30-day HoR) chosen on the basis of proportional
period before the opening of the next regular session, representation from the political parties and
excluding Saturdays, Sundays and legal holidays. This parties registered under the party-list system
is the minimum period of recess and may be (Sec. 17, Art. VI).
lengthened by the Congress in its discretion. It may
however, be called in special session at any time by Note: The senior Justice in the Electoral Tribunal shall be its
the President. (Sec. 15, Art. VI) chairman.

Q: What is the rule on adjournment? Q: What is the jurisdiction of the Electoral Tribunals?

A: Neither House during the sessions of the Congress A: Each electoral tribunal shall be the sole judge of all
shall, without the consent of the other, adjourn for contests relating to the election, returns, and
more than 3 days, nor to any other place than that in qualifications of their respective members (Sec. 17,
which the two Houses shall be sitting. (Sec. 16, Par. 5, Art. VI). This includes determining the validity or
Art. VI) invalidity of a proclamation declaring a particular
candidate as the winner. Each ET is also vested with
Q: What is adjournment sine die? rule-making power (Lazatin v. HRET, G.R. No. L-
84297, Dec. 8, 1988.
A: Interval between the session of one Congress and
that of another. It is independent of the Houses of Congress and its
decisions may be reviewed by the Supreme Court
DISCIPLINE OF MEMBERS only upon showing of grave abuse of discretion.

Q: May each house of congress punish its members Q: What is an election contest?
for disorderly behavior?
A: Where a defeated candidate challenges the
A: Yes. Each house may punish its members for qualification and claims for himself the seat of the
disorderly behavior and, with concurrence of 2/3 of proclaimed winner. In the absence of an election
all its members, suspend, for not more than 60 days, contest, ET is without jurisdiction.
or expel a member. (Sec. 16, Par. 3, Art. VI).
Note: Once a winning candidate has been proclaimed,
taken his oath, and assumed office as a member of the
Q: What is contemplated by disorderly behavior? HoR, COMELECs jurisdiction over election contests relating
to his election, returns, and qualification ends, and the
A: The interpretation of the phrase disorderly HRETs own jurisdiction begins. The phrase election,
behavior is the prerogative of the House concerned returns, and qualifications should be interpreted in its
and cannot be judicially reviewed (Osmea v. totality as referring to all matters affecting the validity of
Pendatun, G.R. No. L-17144, Oct.28, 1960). the contestees title. (Vinzons-Chato v. COMELEC, G.R. No.
172131, April 2, 2007)
Note: Members of Congress may also be suspended by the
Sandiganbayan or by the Office of the Ombudsman. The Q: In the absence of election contest, what power
suspension in the Constitution is different from the does each House have over its members?
suspension prescribed in RA 3019, Anti-Graft and Corrupt
Practices Act. The latter is not a penalty but a preliminary A: The power of each House to expel its members or
preventive measure and is not imposed upon the petitioner even to defer their oath taking until their

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2013 GOLDEN NOTES 36
LEGISLATIVE DEPARTMENT

qualifications are determined may still be exercised decision, there is no appeal. Appeal is not a
even without an election contest. constitutional but merely a statutory right.

Q: Pat Alampay ran for HoR. A disqualification case Q: Is there any remedy from its decision?
was filed against her on account of her residence.
The case was not resolved before the election. Pat A: Yes. A special civil action for certiorari under Rule
won the election. However, she was not proclaimed. 65 of the Rules of Court may be filed. This is based on
Pat now questions the COMELECs jurisdiction over grave abuse of discretion amounting to lack or excess
the case. Does the COMELEC have jurisdiction over of jurisdiction. This shall be filed before the Supreme
the case? Court.

A: Yes. HRETs jurisdiction as the sole judge of all Q: What is the composition of the Commission on
contests relating to elections, etc. of members of Appointments (CA)?
Congress begins only after a candidate has become a
member of the HoR. Since Imelda has not yet been A:
proclaimed, she is not yet a member of the HoR. 1. Senate President as ex-officio chairman
Thus, COMELEC retains jurisdiction. (Romualdez- 2. 12 Senators
Marcos v. COMELEC, G.R. No. 119976, Sept. 18, 1995) 3. 12 members of the HoR (Sec. 18, Art. VI)

Q: Does the HRET have authority to pass upon the Note: A political party must have at least 2 elected senators
eligibilities of the nominees of the party-list groups for every seat in the Commission on Appointments. Thus,
that won in the lower house of Congress? where there are two or more political parties represented
in the Senate, a political party/coalition with a single
senator in the Senate cannot constitutionally claim a seat in
A: Yes. By analogy with the cases of district
the Commission on Appointments. It is not mandatory to
representatives, once the party or organization of the elect 12 senators to the Commission; what the Constitution
party-list nominee has been proclaimed and the requires is that there must be at least a majority of the
nominee has taken his oath and assumed office as entire membership. (Guingona, Jr. v. Gonzales, G.R. No.
member of the HoR, the COMELECs jurisdiction over 106971, Oct. 20, 1992)
election contests relating to his qualifications ends
and the HRETs own jurisdiction begins. (Abayon v. Q: How are the 12 Senators and 12 Representatives
HRET, G.R. No. 189466, Feb. 11, 2010) chosen?

Q: What are the valid grounds or just causes for A: The members of the Commission shall be elected
termination of membership to the tribunal? by each House on the basis of proportional
representation from the political party and party list.
A: Accordingly, the sense of the Constitution is that the
1. Expiration of Congressional term of Office membership in the Commission on Appointment
2. Death or permanent disability must always reflect political alignments in Congress
3. Resignation from the political party he and must therefore adjust to changes. It is
represents in the tribunal understood that such changes in party affiliation
4. Formal affiliation with another political party must be permanent and not merely temporary
5. Removal from office for other valid reasons. alliances (Daza v. Singson, G.R. No. 86344, Dec. 21,
(Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1989). Endorsement is not sufficient to get a seat in
1991) COA.

Q: Can the ET meet when Congress is not in session? Note: The provision of Sec. 18, Art. VI of the Constitution,
on proportional representation is mandatory in character
A: Yes. Unlike the Commission on Appointments, the and does not leave any discretion to the majority party in
the Senate to disobey or disregard the rule on proportional
ET shall meet in accordance with their rules,
representation; otherwise, the party with a majority
regardless of whether Congress is in session or not.
representation in the Senate or the HoR can by sheer force
of numbers impose its will on the hapless minority. By
Q: Is there an appeal from the ETs decision? requiring a proportional representation in the CA, Sec. 18 in
effect works as a check on the majority party in the Senate
A: No. Sec. 17 of Art. VI provides that the SET/HRET is and helps maintain the balance of power. No party can
the sole judge of all contests. Hence, from its claim more than what it is entitled to under such rule
(Guingona, Jr. v. Gonzales, G.R. No. 105409, March1, 1993).

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37 FACULTY OF CIVIL LAW
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Q: What is the jurisdiction of the CA? POWERS OF CONGRESS

A: CA shall confirm the appointments by the LEGISLATIVE


President with respect to the following positions:
HAPCOO Q: What are the legislative powers of Congress?

1. Heads of the Executive departments. (except if it A:


is the Vice-President who is appointed to the 1. General plenary power (Sec. 1, Art. VI)
post) 2. Specific power of appropriation
2. Ambassadors, other Public ministers or Consuls 3. Taxation and expropriation
3. Officers of the AFP from the rank of colonel or 4. Legislative investigation
naval captain 5. Question hour
4. Other officers whose appointments are vested in
him by the Constitution (i.e. COMELEC members) Q: What is Legislative Power?
(Bautista v. Salonga, G.R. No. 86439, April 13,
1989) A: It is the power or competence of the legislative to
propose, enact, ordain, amend/alter, modify,
Q: What are the rules on voting? abrogate or repeal laws. It is vested in the Congress
which shall consist of a Senate and a House of
A: Representatives, except to the extent reserved to the
1. The CA shall rule by a majority vote of all the people by the provision on initiative and referendum.
members.
2. The chairman shall only vote in case of tie. Q: What is the Doctrine of Shifting Majority?
3. The CA shall act on all appointments within 30
session days from their submission to Congress A: For each House of Congress to pass a bill, only the
(Sec. 18, Art. VI) votes of the majority of those present in the session,
there being a quorum, is required.
Q: What are the limitations on confirmation?
Q: What are the Rules regarding the Passage of Bills?
A:
1. Congress cannot by law prescribe that the A:
appointment of a person to an office created by 1. No bill passed by either House shall become a
such law be subject to confirmation by the CA. law unless it has passed three readings on
2. Appointments extended by the President to the separate days.
above-mentioned positions while Congress is not 2. Printed copies of the bill in its final form should
in session shall only be effective until disapproval be distributed to the Members 3 days before its
by the CA or until the next adjournment of passage (except when the President certifies to
Congress (Sarmiento III v. Mison, G.R. No. L- the necessity of its immediate enactment to
79974, Dec. 17, 1987). meet a public calamity or emergency)
3. Upon the last reading of a bill, no amendment
Q: What are the guidelines in the meetings of the thereto shall be allowed.
CA? 4. The vote on the bill shall be taken immediately
after the last reading of a bill.
A: 5. The yeas and the nays shall be entered in the
1. Meetings are held either at the call of the Journal.
Chairman or a majority of all its members.
2. Since the CA is also an independent XPN: The certification of the President
constitutional body, its rules of procedure are dispenses with the reading on separate days
also outside the scope of congressional powers and the printing of the bill in the final form
as well as that of the judiciary. (Bondoc v. Pineda, before its final approval. (Tolentino v.
G.R. No. 97710, Sept. 26, 1991) Secretary of Finance, G.R.No. 115455, Oct.
30, 1995)
Note: The ET and the CA shall be constituted within 30 days
after the Senate and the HoR shall have been organized Q: When does a bill become a law?
with the election of the Senate President and the Speaker
of the House.
A:

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LEGISLATIVE DEPARTMENT

1. Approved and signed by the President confined only to the legislative purpose. This is
2. Presidential veto overridden by 2/3 vote of all also to avoid abuses.
members of both Houses 3. The investigation must be in aid of legislation.
3. Failure of the President to veto the bill and to 4. Congress may not summon the President as
return it with his objections to the House where witness or investigate the latter in view of the
it originated, within 30 days after the date of doctrine of separation of powers except in
receipt impeachment cases.
4. A bill calling a special election for President and
Vice-President under Sec. 10. Art. VII becomes a Note: It is the Presidents prerogative to divulge or not
law upon its approval on the third reading and the information which he deems confidential or
final reading prudent in the public interest.

LEGISLATIVE INQUIRIES AND OVERSIGHT 5. Congress may no longer punish the witness in
FUNCTIONS contempt after its final adjournment. The basis
of the power to impose such penalty is the right
Q: What does Section 21, Article VI of the to self-preservation. And such right is
Constitution provides? enforceable only during the existence of the
legislature (Lopez v. Delos Reyes, G.R. No. L-
A: The Senate or the House of Representatives or any 3436,Nov. 5, 1930).
of its respective committees may conduct inquiries in 6. Congress may no longer inquire into the same
aid of legislation in accordance with its duly published justiciable controversy already before the court
rules of procedure. The rights of persons appearing (Bengzon v. Blue Ribbon Committee, G.R. No.
in, or affected by, such inquiries shall be respected. 89914, Nov. 20, 1991).

Q: What is the scope of subject matter of the power Q: Senator Jogie Repollo accused the Vice Chairman
to conduct inquiries in aid of legislation? of the Standard Chartered Bank of violating the
Securities Regulation Code for selling unregistered
A: Indefinite. The field of legislation is very wide as foreign securities. This has led the Senate to conduct
compared to that of the American Congress. And investigation in aid of legislation. SCB refused to
because of such, the field of inquiry is also very attend the investigation proceedings on the ground
broad. It may cover administrative inquiries, social, that criminal and civil cases involving the same
economic, political problem (inquiries), discipline of issues were pending in courts. Decide.
members, etc. Suffice it to say that it is co-extensive
with legislative power. (Arnault v. Nazareno, G.R. No. A: The mere filing of a criminal or an administrative
L-3820, July 18, 1950) complaint before a court or a quasi-judicial body
should not automatically bar the conduct of
Note: In aid of legislation does not mean that there is pending legislative investigation. Otherwise, it would be
legislation regarding the subject of the inquiry. In fact, investigation extremely easy to subvert any intended inquiry by
may be needed for purposes of proposing future legislation. Congress through the convenient ploy of instituting a
criminal or an administrative complaint. Surely, the
If the stated purpose of the investigation is to determine the
existence of violations of the law, the investigation is no longer in exercise of sovereign legislative authority, of which
aid of legislation but in aid or prosecution. This violates the the power of legislative inquiry is an essential
principle of separation of powers and is beyond the scope of component, cannot be made subordinate to a
Congressional powers. criminal or an administrative investigation. (Standard
Chartered Bank v. Senate, G.R. No. 167173, Dec. 27,
Q: What are the limitations on legislative 2007)
investigation?
Q: Distinguish the above-mentioned case from the
A: case of Bengzon v. Senate Blue Ribbon Committee.
1. Under Sec. 21, Art. VI, the persons appearing in
or affected by such legislative inquiries shall be A: It is true that in Bengzon, the Court declared that
respected. the issue to be investigated was one over which
2. The Rules of procedures to be followed in such jurisdiction had already been acquired by the
inquiries shall be published for the guidance of Sandiganbayan, and to allow the [Senate Blue
those who will be summoned. This must be Ribbon] Committee to investigate the matter would
strictly followed so that the inquiries are create the possibility of conflicting judgments; and
that the inquiry into the same justiciable controversy

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39 FACULTY OF CIVIL LAW
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would be an encroachment on the exclusive domain the President of the Senate or the Speaker of the HoR
of judicial jurisdiction that had set in much earlier. at least 3 days before their scheduled appearance.
Interpellations shall not be limited to written
To the extent that, in the case at bench, there are a questions, but it may cover matters related thereto.
number of cases already pending in various courts When the security of the State or the public interest
and administrative bodies involving the petitioners, so requires and the President so states in writing, the
relative to the alleged sale of unregistered foreign appearance shall be conducted in executive session
securities, there is a resemblance between this case (Sec. 22, Art.VI)
and Bengzon. However, the similarity ends there.
Q: Distinguish question hour from legislative
Central to the Courts ruling in Bengzon -- that the investigation.
Senate Blue Ribbon Committee was without any
constitutional mooring to conduct the legislative A:
investigation -- was the Courts determination that LEGISLATIVE
QUESTION HOUR
the intended inquiry was not in aid of legislation. The INVESTIGATION
(SEC. 22, ART. VI,
Court found that the speech of Senator Enrile, which (SEC. 21, ART. VI,
1987 CONSTITUTION)
sought such investigation contained no suggestion of 1987 CONSTITUTION)
any contemplated legislation; it merely called upon As to persons who may appear
the Senate to look into possible violations of Sec. 5, Only a department head Any person
R.A. No. 3019. Thus, the Court held that the As to who conducts the investigation
requested probe failed to comply with a fundamental Entire body Committees/Entire Body
requirement of Sec. 21, Article VI of the Constitution. As to subject matter
(Standard Chartered Bank v. Senate, G.R. No. 167173, Matters related to the Any matter for the
Dec. 27, 2007) department only purpose of legislation
Q: Does Congress have the power to cite persons in
Q: What is the power of oversight of Congress?
contempt?
A: The power of oversight embraces all activities
A: Yes. Even if the Constitution only provides that
undertaken by Congress to enhance its understanding
Congress may punish its members for disorderly
of and influence over the implementation of
behavior or expel the same, it is not an exclusion of
legislation it has enacted. It concerns post-enactment
power to hold other persons in contempt.
measures undertaken by Congress. (Concurring and
Dissenting Opinion of Justice Puno,Macalintal v.
Note: Congress has the inherent power to punish
recalcitrant witnesses for contempt, and may have them
COMELEC, G.R. No. 157013, July 10, 2003)
incarcerated until such time that they agree to testify. The
continuance of such incarceration only subsists for the Q: What is the scope of the power of oversight?
lifetime, or term, of such body. Thus, each House lasts for
only 3 years. But if one is incarcerated by the Senate, it is A: To:
indefinite because the Senate, with its staggered terms, is a 1. Monitor bureaucratic compliance with program
continuing body. objectives;
2. Determine whether agencies are properly
Q: Does the pardoning power of the President apply administered;
to cases of legislative contempt? 3. Eliminate executive waste and dishonesty;
4. Prevent executive usurpation of legislative
A: No. It is a limitation on the Presidents power to authority; and
pardon by virtue of the doctrine of separation of 5. Assess executive conformity with the
powers. congressional perception of public interest.
(Concurring and Dissenting Opinion of Justice
Q: What is the so-called question hour? Puno, Macalintal v. COMELEC, G.R. No. 157013,
July 10, 2003)
A: The heads of departments may upon their own
initiative, with the consent of the President, or upon Q: What are the bases of oversight power of
the request of either House, as the rules of each Congress?
House shall provide, appear before and be heard by
such House on any matter pertaining to their A: The power of oversight has been held to be:
departments. Written questions shall be submitted to

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LEGISLATIVE DEPARTMENT

1. Intrinsic in the grant of legislative power itself; the form of an inward-turning delegation designed to
2. Integral to the system of checks and balances; attach a congressional leash to an agency to which
and Congress has by law initially delegated broad powers.
3. Inherent in a democratic system of government. It radically changes the design or structure of the
Constitutions diagram of power as it entrusts to
Q: What are the categories of Congressional Congress a direct role in enforcing, applying or
Oversight Functions? implementing its own laws. Thus, legislative veto is
not allowed in the Philippines. (ABAKADA Guro Party-
A: SIS list v. Purisima, G.R. No. 166715, Aug. 14, 2008)
1. Scrutinyimplies a lesser intensity and
continuity of attention to administrative Q: Can Congress exercise discretion to approve or
operations. Its primary purpose is to determine disapprove an IRR based on a determination of
economy and efficiency of the operation of whether or not it conformed to the law?
government activities. In the exercise of
legislative scrutiny, Congress may request A: No. In exercising discretion to approve or
information and report from the other branches disapprove the IRR based on a determination of
of government. It can give recommendations or whether or not it conformed to the law, Congress
pass resolutions for consideration of the agency arrogated judicial power unto itself, a power
involved. It is based primarily on the power of exclusively vested in the Supreme Court by the
appropriation of Congress. But legislative Constitution. Hence, it violates the doctrine of
scrutiny does not end in budget hearings. separation of powers. (ABAKADA Guro Party-list v.
Congress can ask the heads of departments to Purisima, G.R. No. 166715, Aug. 14, 2008)
appear before and be heard by either the House
of Congress on any matter pertaining to their Q: May the Senate be allowed to continue the
department. Likewise, Congress exercises conduct of a legislative inquiry without a duly
legislative scrutiny thru its power of confirmation published rules of procedure?
to find out whether the nominee possesses the
necessary qualifications, integrity and probity A: No. The phrase duly published rules of
required of all public servants. procedure requires the Senate of every Congress to
publish its rules of procedure governing inquiries in
2. Congressional Investigationinvolves a more aid of legislation because every Senate is distinct
intense digging of facts. It is recognized under from the one before it or after it. (Garcillano v. House
Section 21, Article VI. Even in the absence of of Representatives Committee on Public Information,
constitutional mandate, it has been held to be an G.R. No. 170338, Dec. 23, 2008)
essential and appropriate auxiliary to the
legislative functions. Q: Is the Senate a continuing legislative body?

3. Legislative Supervisionit connotes a continuing A: The present Senate under the 1987 Constitution is
and informed awareness on the part of no longer a continuing legislative body. The present
congressional committee regarding executive Senate has 24 members, twelve of whom are elected
operations in a given administrative area. It every 3 years for a term of 6 years each. Thus, the
allows Congress to scrutinize the exercise of term of 12 Senators expires every 3 years, leaving less
delegated law-making authority, and permits than a majority of Senators to continue into the next
Congress to retain part of that delegated Congress (Garcillano v. House of Representatives
authority. Committee on Public Information, et al., G.R. No.
170338, Dec. 23, 2008).
Q: What is legislative veto? Is it allowed in the
Philippines? Note: There is no debate that the Senate as an institution is
"continuing", as it is not dissolved as an entity with each
A: Legislative veto is a statutory provision requiring national election or change in the composition of its
members. However, in the conduct of its day-to-day
the President or an administrative agency to present
business the Senate of each Congress acts separately and
the proposed IRR of a law to Congress which, by itself
independently of the Senate of the Congress before it.
or through a committee formed by it, retains a right
or power to approve or disapprove such regulations Undeniably, all pending matters and proceedings,
before they take effect. As such, a legislative veto in i.e.unpassed bills and even legislative investigations, of the
the form of a congressional oversight committee is in Senate of a particular Congress are considered terminated
upon the expiration of that Congress and it is merely

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41 FACULTY OF CIVIL LAW
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optional on the Senate of the succeeding Congress to take must follow its own internal rules if the rights of its
up such unfinished matters, not in the same status, but as if own members are affected. (Pimentel, Jr., et al v.
presented for the first time. The logic and practicality of Senate Committee of the Whole, G.R. No. 187713,
such a rule is readily apparent considering that the Senate
March 8, 2011)
of the succeeding Congress (which will typically have a
different composition as that of the previous Congress)
should not be bound by the acts and deliberations of the THE BICAMERAL CONFERENCE COMMITTEE
Senate of which they had no part. (Neri v. Senate
Committee on Accountability of Public Officers and Q: What is the purpose of the constitution of the
Investigations, GR. No. 180643, Sept. 4, 2008) Bicameral Conference Committee?

Q: What is its consequence? A: A Conference Committee is constituted and is


composed of Members from each House of Congress
A: The consequence is that the Rules of Procedure to settle, reconcile or thresh out differences or
must be republished by the Senate after every expiry disagreements on any provision of the bill.
of the term of the 12 Senators (Garcillano v. House of
Representatives Committee on Public Information, Q: If the version approved by the Senate is different
G.R. No. 170338, Dec. 23, 2008) from that approved by the House of
Representatives, how are the differences
Q: Is the publication of the rules in the Internet a reconciled?
valid publication?
A. In a bicameral system, bills are independently
A: The invocation of the Senators of the Provisions of processed by both Houses of Congress. It is not
The Electronic Commerce Act of 2000, to support unusual that the final version approved by one House
their claim of valid publication through the internet is differs from what has been approved by the other.
all the more incorrect. The law merely recognizes the
admissibility in evidence of electronic data messages The conference committee, consisting of members
and/or electronic documents. It does not make the nominated from both Houses, is an extra-
internet a medium for publishing laws, rules and constitutional creation of Congress whose function is
regulations. (Garcillano v. House of Representatives to propose to Congress ways of reconciling conflicting
Committee on Public Information, G.R. No. 170338, provisions found in the Senate version and in the
Dec. 23, 2008) House version of a bill. (Concurring and Dissenting
Opinion, J. Callejo, Sr., G.R. No. 168056, Sept. 1, 2005)
Q: Is the publication of the internal rules of the
House or Senate required? Q: Are the conferees limited to reconciling the
differences in the bill?
A: The Constitution does not require publication of
the internal rules of the House or Senate. Since rules A: The conferees are not limited to reconciling the
of the House or Senate affect only their members, differences in the bill but may introduce new
such rules need not be published, unless such rules provisions germane to the subject matter or may
expressly provide for their publication before the report out an entirely new bill on the subject.
rules can take effect. (Pimentel, Jr., et al v. Senate (Tolentino v. Secretary of Finance, G.R.No, 115455,
Committee of the Whole, G.R. No. 187713, March 8, Aug. 25, 1994)
2011).
Q: What is the scope of the powers of Bicameral
Q: Is the publication of the Rules of the Senate Conference Committee?
Committee of the Whole required for their
effectivity? A:
1. Adopt the bill entirely
A: In this particular case, the Rules of the Senate 2. Amend or Revise
Committee of the Whole itself provide that the Rules 3. Reconcile the House and Senate Bills
must be published before the Rules can take effect. 4. Propose entirely new provisions not found in
Thus, even if publication is not required under the either the Senate or House bills
Constitution, publication of the Rules of the Senate
Committee of the Whole is required because the
Rules expressly mandate their publication. xxx. To
comply with due process requirements, the Senate

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LEGISLATIVE DEPARTMENT

LIMITATIONS ON LEGISLATIVE POWER A: Every bill passed by the Congress shall embrace
only one subject. The subject shall be expressed in
Q: What are the limitations on legislative powers? the title of the bill. This rule is mandatory.

A: Note: The purposes of such rule are: (1) To prevent


SUBSTANTIVE hodgepodge or log-rolling legislation; (2) To prevent
1. Express: surprise or fraud upon the legislature; and, (3) To fairly
apprise the people of the subjects of legislation.(Central
a. Bill of Rights (Art.III, 1987
Capiz v. Ramirez, G.R. No. 16197, March 12, 1920)
Constitution)
b. On Appropriations (Secs. 25 and
Q: How many readings must a bill undergo before it
29pars. 1 and 2, Art.VI)
may become a law?
c. On Taxation (Sections 28 and 29,
paragraph 3, Article VI)
A: Each bill must pass 3 readings in both Houses. In
d. On Constitutional appellate
other words, there must be a total of 6 readings.
jurisdiction of SC (Sec. 30, Art. VI)
e. No law granting title of royalty or
GR: Each reading shall be held on separate days and
nobility shall be passed (Sec.31, Art.
printed copies thereof in its final form shall be
VI)
distributed to its Members, 3 days before its passage.
f. No specific funds shall be
appropriated or paid for use or
XPN: If a bill is certified as urgent by the President
benefit of any religion, sect, etc.,
as to the necessity of its immediate enactment to
except for priests, etc., assigned to
meet a public calamity or emergency, the 3
AFP, penal institutions, etc. (Sec. 29,
readings can be held on the same day. (Sec. 26,
par. 2, Art.VI)
Art. VI)
2. Implied:
a. Prohibition against irrepealable
Q: What are the reasons for the three readings on
lawsN
three separate days rule?
b. Non-delegation of powers

PROCEDURAL A: To:
1. Only one subject, to be stated in the title of 1. Address the tendency of legislators, (on the last
the bill (Sec. 26, par. 1, Art.VI). day of the legislative year when legislators are
2. Three (3) readings on separate days; printed eager to go home)
copies of the bill in its final form distributed 2. Rush bills through
to members 3 days before its passage, 3. Insert alterations which would not otherwise
except if President certifies to its immediate stand scrutiny in leisurely debate
enactment to meet a public calamity or
Q: What is an appropriation bill?
emergency; upon its last reading, no
amendment allowed and the vote thereon
A: It is a bill, the primary and specific aim of which is
taken immediately and the yeas and nays
to appropriate a sum of money from the public
entered into the Journal (Sec.26, par. 2, Art.
treasury.
VI).
3. Appropriation bills, revenue bills, tariff bills,
Q: What is a revenue bill?
bills authorizing the increase of public debt,
bills of local application and private bills shall
A: A revenue bill is one specifically designed to raise
originate exclusively in the House of
money or revenue through imposition or levy.
Representatives. (Sec. 24, Art. VI)

Note: During the First Reading, only the title of the bill is Q: What is a bill of local application?
read and it is passed to the proper committee. On the
Second Reading, the entire text is read, debates and A: It is one which is limited to specific localities, such
amendments are held. On the Third Reading only the title is as for instance the creation of a town (Bernas
read votes are taken immediately thereafter. Commentary, p. 748, 2003). Hence, it is one involving
purely local or municipal matters, like a charter of a
Q: What is the so-called one bill-one subject rule? city.

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43 FACULTY OF CIVIL LAW
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Q: What are private bills, and how are they therein. (Sec. 25 Par. 4, Art. VI, 1987
illustrated? Constitution)

A: Those which affect private persons, such as for Q: What are the Constitutional rules on General
instance a bill granting citizenship to a specific Appropriations Laws?
foreigner (Bernas, 2003, p.748,).They are illustrated
by a bill granting honorary citizenship to a A:
distinguished foreigner (Cruz, Philippine Political Law, 1. Congress may not increase appropriations
1995, p. 155). recommended by the President for the
operations of the government;
LIMITATIONS ON REVENUE, APPROPRIATION AND 2. Form, content and manner of preparation of
TARIFF MEASURES budget shall be provided by law;
3. No provision or enactment shall be embraced in
Q: What are the constitutional limitations on the the bill unless it releases specifically to some
legislatives power to enact laws on revenue, particular appropriations therein;
appropriation and tariff measures? 4. Procedure from approving appropriations for
Congress shall be the same as that of other
A: departments in order to prevent sub-rosa
1. All appropriation, revenue or tariff bills, bills appropriations by Congress;
authorizing increase of the public debt, bills of 5. Prohibition against transfer of appropriations.
local application, and private bills, shall originate However, the following may, by law, be
exclusively in the House of Representatives, but authorized to augment any item in the general
the Senate may propose or concur with appropriations law for their respective offices
amendments. (Sec. 24, Art. VI) from savings in other items of their respective
appropriations (Doctrine of Augmentation):
Note: The initiative for filing of ART bills must come a. President
from the House, but it does not prohibit the filing in b. Senate President
the Senate of a substitute bill in anticipation of its c. Speaker of the HoR
receipt of the bill from the House, so long as the action d. Chief Justice
by the Senate is withheld pending the receipt of the
e. Heads of Constitutional Commissions.
House bill.(Tolentino v. Sec. of Finance, G.R. No.
115455, Aug. 25, 1994).
6. Prohibitions against appropriations for sectarian
benefit; and
2. The President shall have the power to veto any 7. Automatic re-appropriation if, by the end of
particular item or items in an appropriation, any fiscal year, the Congress shall have failed to
revenue, or tariff bill, but the veto shall not affect pass the general appropriations bill for the
the item or items to which he does not object. ensuing fiscal year, the general appropriations
(Sec.27, Art. VI) law for the preceding fiscal year shall be deemed
reenacted and shall remain in force and effect
Q: What are the implied limitations on until the general appropriations bill is passed by
appropriation power? the Congress (Sec. 25, Par. 7, Art. VI).

A: Q: What is the power of appropriation?


1. Must specify public purpose
2. Sum authorized for release must be determinate, A: The spending power, also called the power of the
or at least determinable. (Guingona v. Carague, purse belongs to Congress, subject only to the veto
G.R. No. 94571, April22, 1991) power of the President. It carries with it the power to
specify the project or activity to be funded under the
Q: What are the constitutional limitations on special appropriation law.
appropriations measures?
Q: What is an appropriation law?
A:
1. Must specify public purpose for which the sum A: A statute, the primary and specific purpose of
was intended which is to authorize release of public funds from the
2. Must be supported by funds actually available as treasury.
certified by the National Treasurer or to be raised
by corresponding revenue proposal included Q: What is budget?

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LEGISLATIVE DEPARTMENT

A: Financial program of the national government for Note: The proposed budget is not final. It is subject to the
the designated calendar year, providing for the approval of Congress but the President may exercise his or
estimates of receipts of revenues and expenditures. her veto power. Accordingly, the power of the purse
belongs to Congress, subject only to the veto power of the
President. The President may propose the budget but still
Q: What are the classifications of appropriations?
the final say on the matter of appropriation is lodged in the
Congress. (Philippine Constitution Association v. Enriquez,
A: G.R. No. 113105, Aug. 19, 1994)
1. General appropriation law passed annually,
intended for the financial operations of the Q: May Congress modify the budget proposed by the
entire government during one fiscal period; President?
2. Special appropriation law designed for a
specific purpose A: Yes. However, Congress may only reduce but not
increase the budget.
Q: The budget of a predominantly Muslim province
provides the Governor with a certain amount as his Q: May Congress increase its outlay for itself, the
discretionary funds. Recently, however, the Judiciary and other Constitutional bodies?
Sangguniang Panlalawigan passed a resolution
appropriating P100,000 as a special discretionary A: No, because it is presumed that their needs have
fund of the Governor, to be spent by him in leading already been identified while drafting the budget.
a pilgrimage of his provincemates to Mecca, Saudi
Arabia, Islam's holiest city. PRESIDENTIAL VETO AND CONGRESSIONAL
OVERRIDE
Philconsa, on constitutional grounds, has filed suit to
nullify the resolution of the Sangguniang Q: What is the rule on presidential veto?
Panlalawigan giving the special discretionary fund
to the Governor for the stated purpose. How would A:
you decide the case? Give your reasons. GR: If the President disapproves a bill enacted by
Congress, he should veto the entire bill. He is not
A: The resolution is unconstitutional. allowed to veto separate items of a bill.
1. First, it violates Art. VI, Sec. 29(2) of the
Constitution which prohibits the appropriation of XPN: Item-veto is allowed in case of
public money or property, directly or indirectly, Appropriation, Revenue, and Tariff bills. (Sec. 27,
for the use, benefit or support of any system of Par. 2, Art. VI).
religion;
2. Second, it contravenes Art. VI, Sec. 25(6) which XPNs to the XPN:
limits the appropriation of discretionary funds 1. Doctrine of inappropriate provisions a
only for public purposes. provision that is constitutionally
inappropriate for an appropriation bill
The use of discretionary funds for purely religious
may be singled out for veto even if it is
purpose is unconstitutional, and the fact that the
not an appropriation or revenue
disbursement is made by resolution of a local
item.(Gonzales v. Macaraig, Jr., G.R. No.
legislative body and not by Congress does not make it
87636, November 19, 1990)
any less offensive to the Constitution. Above all, the
2. Executive impoundment refusal of the
resolution constitutes a clear violation of the Non-
President to spend funds already
establishment Clause of the Constitution.
allocated by Congress for specific
purpose. It is the failure to spend or
Q: Who shall propose the budget?
obligate budget authority of any type.
(Philconsa v. Enriquez, G.R. No. 113105,
A: The President shall propose the budget and submit
August 19, 1994)
it to Congress. It shall indicate the expenditures,
sources of financing as well as receipts from previous
Q: When is there a pocket veto?
revenues and proposed revenue measures. It will
serve as a guide for Congress:
A: It occurs when:
1. The President fails to act on a bill; and
1. In fixing the appropriations;
2. The reason he does not return the bill to the
2. In determining the activities which should be
Congress is that Congress is not in session.
funded. (Sec. 22, Art. VII)

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45 FACULTY OF CIVIL LAW
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Note: Pocket veto is not applicable in the Philippines 7. Power to concur in treaties or international
because inaction by the President for 30 days never agreements; concurrence of at least 2/3 of all the
produces a veto even if Congress is in recess. The President members of the Senate (Sec. 21, Art. VII)
must still act to veto the bill and communicate his veto to
8. Power to confirm certain appointments/
Congress without need of returning the vetoed bill with his
nominations made by the President (Secs. 9 and
veto message.
16, Art. VII)
Q: When does the Constitution require that the yeas 9. Power of Impeachment (Sec. 2, Art. XI)
and nays of the Members be taken every time a 10. Power relative to natural resources (Sec. 2, Art.
House has to vote? XII)
11. Power of internal organization (Sec. 16, Art. VI)
A: a) Election of officers
1. Upon the last and third readings of a bill (Section b) Promulgate internal rules
26, Par. 2, Article VI); c) Disciplinary powers (Sec. 16, Art. VI)
2. At the request of 1/5 of the members present 12. Informing Function
(Section 16, Par. 4, Article VI); and
3. In repassing a bill over the veto of the President Q: State the conditions under which, during a period
(Section 27, Par. 1, Article VI). of national emergency, Congress is allowed to grant
emergency powers to the President.
Q: What is a rider?
A: Under Sec. 23[2], Article VI of the Constitution,
A: A rider is a provision in a bill which does not relate Congress may grant the President emergency powers
to a particular appropriation stated in the bill. Since it subject to the following conditions:
is an invalid provision under Sec. 25, Par. 2, Art. VII, 1. There is a war or other national emergency;
1987 Constitution, the President may veto it as an 2. The grant of emergency powers must be for a
item. limited period;
3. The grant of emergency powers is subject to such
Q. How can Congress override a Presidential veto? restrictions as Congress may prescribe; and
4. The emergency powers must be exercised to
A. If, after reconsideration, 2/3 of all members of carry out a national policy declared by Congress
such House agree to pass the bill, it shall be sent to
the other House by which it shall likewise be Q: What is the policy of the Philippines regarding
reconsidered and if approved by 2/3 of all members war?
of that House, it shall become a law without the need
of presidential approval. A: The Philippines renounces war as an instrument of
national policy. (Sec. 2, Art. II)
NON-LEGISLATIVE POWERS
Q: What are the voting requirements to declare the
Q: What are the Non-legislative powers of Congress? existence of a state of war?

A: A:
1. Power to declare the existence of state of war 1. 2/3 of both Houses
(Sec. 2, Par. 1, Art. VI) 2. In joint session
2. Power to act as Board of Canvassers in election 3. Voting separately
of President (Sec. 10, Art. VII)
3. Power to call a special election for President and Note: Even though the legislature can declare an existence
of war and enact measures to support it, the actual power
Vice-President (Sec. 10, Art. VII)
to engage in war is lodged nonetheless in the executive.
4. Power to judge Presidents physical fitness to
discharge the functions of the Presidency (Sec.
INFORMING FUNCTIONS
11, Art. VII)
5. Power to revoke or extend suspension of the
Q: Discuss the Informing function of Congress.
privilege of the writ of habeas corpus or
declaration of martial law (Sec. 18, Art. VII)
A: The informing function of the legislature includes
6. Power to concur in Presidential amnesties.
its function to conduct legislative inquiries and
Concurrence of majority of all the members of
investigation and its oversight power.
Congress (Sec. 19, Art. VII)

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2013 GOLDEN NOTES 46
LEGISLATIVE DEPARTMENT

The power of Congress does not end with the finished Note: The enumeration is exclusive. (Sec. 2, Art. XI, 1987
task of legislation. Concomitant with its principal Constitution)
power to legislate is the auxiliary power to ensure
that the laws it enacts are faithfully executed. As well Q: What are the grounds for impeachment?
stressed by one scholar, the legislature fixes the
main lines of substantive policy and is entitled to see A:
that administrative policy is in harmony with it; it 1. Culpable violation of the Constitution
establishes the volume and purpose of public 2. Treason
expenditures and ensures their legality and propriety; 3. Bribery
it must be satisfied that internal administrative 4. Graft and Corruption
controls are operating to secure economy and 5. Other high crimes
efficiency; and it informs itself of the conditions of 6. Betrayal of public trust (Sec. 2, Art. XI, 1987
administration of remedial measure. Constitution)

The power of oversight has been held to be intrinsic Note: It is an exclusive list.
in the grant of legislative power itself and integral to
the checks and balances inherent in a democratic Q: What are the steps in the impeachment process?
system of government. Woodrow Wilson went one
step farther and opined that the legislatures A:
informing function should be preferred to its 1. Initiating impeachment case
legislative function. He emphasized that [E]ven more a. Verified complaint filed by any member of the
important than legislation is the instruction and House of Representatives or any citizen upon
guidance in political affairs which the people might resolution of endorsement by any member
receive from a body which kept all national concerns thereof.
suffused in a broad daylight of discussion. b. Included in the order of business within 10
(Concurring and Dissenting Opinion of Justice Puno, session days.
Macalintal v. COMELEC, G.R. No. 157013,July 10, c. Referred to the proper committee within 3
2003) session days from its inclusion.
d. The committee, after hearing, and by majority
POWER OF IMPEACHMENT vote of all its members, shall submit its report
to the House of Representatives together with
Q: What is impeachment? the corresponding resolution.
e. Placing on calendar the Committee resolution
A: It is a method by which persons holding within 10 days from submission;
government positions of high authority, prestige, and f. Discussion on the floor of the report;
dignity and with definite tenure may be removed
Note: If the verified complaint is filed by at least 1/3
from office for causes closely related to their conduct
of all its members of the House of Representatives,
as public officials.
the same shall constitute the Articles of
Impeachment, and trial by the Senate shall
Note: It is a national inquest into the conduct of public men forthwith proceed. (Sec. 3 (4), Art. XI, 1987
(Outline on Political Law, Nachura, 2006). Constitution)

It is primarily intended for the protection of the State, not


g. A vote of at least 1/3 of all the members of the
for the punishment of the offender. The penalties attached
to the impeachment are merely incidental to the primary House of Representatives shall be necessary
intention of protecting the people as a body politic. (The either to affirm a favorable resolution with the
Law on Public officers by Hector S. De Leon, 2008 ed.) Articles of Impeachment of the committee or
override its contrary resolution. (Sec. 3 (2-3),
Q: Who are the impeachable officers? Art. XI. 1987 Constitution)

A: 2. Trial and Decision in impeachment proceedings


1. President a. The Senators take an oath or affirmation
2. Vice-President b. When the President of the Philippines is on
3. Members of the Supreme Court trial, the Chief Justice of the SC shall preside
4. Members of the Constitutional Commissions but shall not vote.
5. Ombudsman c. A decision of conviction must be concurred in
by at least 2/3 of all the members of Senate.

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Note: The Senate has the sole power to try and decide all (Gutierrez v. The House of Representatives Committee
cases of impeachment. (Sec. 3(6), Art. XI, 1987 Constitution) on Justice, G.R. No. 193459, Feb. 15, 2011)

Q: When is an impeachment deemed initiated? Q: What are the effects of conviction in


impeachment?
A: The proceeding is initiated or begins, when a
verified complaint is filed and referred to the A:
Committee on Justice for action. This is the initiating 1. Removal from office
step which triggers the series of step that follow. The 2. Disqualification to hold any other office under the
term to initiate refers to the filing of the Republic of the Philippines
impeachment complaint coupled with Congress 3. Party convicted shall be liable and subject to
taking initial action of said complaint. (Francisco v. prosecution, trial and punishment according to
House of Rep., G.R. No. 160261, November 10, 2003) law. (Sec. 3 (7). Art. XI, 1987 Constitution)

Q: Who has the power to determine the sufficiency Q: What are the limitations imposed by the
of form and substance of an impeachment Constitution upon the initiation of impeachment
complaint? proceedings?

A: Determination of sufficiency of form and A:


substance of an impeachment complaint is an 1. The House of Representatives shall have the
exponent of the express constitutional grant of exclusive power to initiate all cases of
rulemaking powers of the House of Representatives. impeachment.
In the discharge of that power and in the exercise of 2. Not more than one impeachment proceeding shall
its discretion, the House has formulated be initiated against the same official within a
determinable standards as to form and substance of period of one year.
an impeachment complaint. Furthermore the
impeachment rules are clear in echoing the Note: An impeachment case is the legal controversy that
constitutional requirements in providing that there must be decided by the Senate while an impeachment
must be a verified complaint or resolution and that proceeding is one that is initiated in the House of
the substance requirement is met if there is a recital Representatives. For purposes of applying the one year ban
of facts constituting the offense charged and rule, the proceeding is initiated or begins when a verified
complaint is filed and referred to the Committee on Justice
determinative of the jurisdiction of the committee.
for action. (Francisco v. House of Representatives, et. al.,
(Ma.Merceditas Gutierrez v. The House of
G.R. No. 160261, Nov. 10, 2003)
Representatives Committee on Justice, G.R. No.
193459, Feb. 15,2011) The power to impeach is essentially a non-legislative
prerogative and can be exercised by Congress only within
Q: What is the salutary reason of confining only one the limits of the authority conferred upon it by the
impeachment proceeding in a year? Constitution. (Francisco v. House of Representatives, et. al.,
G.R. No. 160261, Nov. 10, 2003)
A: Justice Azcuna stated that the purpose of the one-
Initiation takes place by the act of filing of the
year bar is two-fold:
impeachment complaint and referral to the House
1. To prevent undue or too frequent harassment
Committee on Justice. Once an impeachment complaint has
2. To allow the legislature to do its principal task of been initiated in the foregoing manner, another may not be
legislation. (Francisco v. House of Rep., G.R. No. filed against the same official within a one year period.
160261, Nov. 10, 2003) (Gutierrez v. House of Representatives Committee on
Justice, G.R. No. 193459, February 15, 2011)
The consideration behind the intended limitation
refers to the element of time, and not the number of
complaints. The impeachable officer should defend
himself in only one impeachment proceeding, so that
he will not be precluded from performing his official
functions and duties. Similarly, Congress should run
only one impeachment proceeding so as not to leave
it with little time to attend to its main work of law-
making. The doctrine laid down in Francisco that
initiation means filing and referral remains congruent
to the rationale of the constitutional provision.

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EXECUTIVE DEPARTMENT

EXECUTIVE DEPARTMENT B. (Rule on immunity after tenure)


Once out of office, even before the end of the 6-
Q: To whom is executive power vested? year term, immunity for non-official acts is lost.
Such was the case of former President Joseph
A: The President. Estrada. Immunity cannot be claimed to shield a
non-sitting President from prosecution for
Note: The President is both the Head of State and the Chief alleged criminal acts done while sitting in office.
Executive. (Estrada v. Desierto, G.R. Nos. 146710-15, Mar. 2,
2001)
PRIVILEGES, INHIBITIONS AND
DISQUALIFICATIONS Q: Is a non-sitting President immune from suit for
acts committed during his tenure?
IMMUNITY AND PRIVILEGES
A: No, a non-sitting President does not enjoy
Q: What are the privileges of the President and VP? immunity from suit, even though the acts were done
A: during her tenure. The intent of the framers of the
Constitution is clear that the immunity of the
PRESIDENT VICE-PRESIDENT president from suit is concurrent only with his tenure
and not his term. Former President Arroyo cannot
1. Salary shall not be
1. Official residence; use the presidential immunity from suit to shield
decreased during his
2. Salary is determined herself from judicial scrutiny that would assess
tenure;
by law and not to be whether, within the context of amparo proceedings,
2. If appointed to a
decreased during his she was responsible or accountable for the abduction
Cabinet post, no need
tenure (Sec. 6, Art. of Rodriguez. (In Re: Petition for the Writ of Amparo
for Commission on
VII); and Habeas Data in favor of Noriel H. Rodriguez;
Appointments
3. Immunity from suit Noriel H. Rodriguez vs. Gloria Macapagal-Arroyo, et
confirmation (Sec. 3,
for official acts. al., G.R. Nos. 191805 &193160. Nov. 15, 2011)
Art. VII).
Q: What are the reasons for the Presidents
PRESIDENTIAL IMMUNITY
immunity from suit?
Q: What is presidential or executive immunity? A:
1. Separation of powers. The separation of powers
A: It is the immunity from suits during the Presidents
principle is viewed as demanding the executives
incumbency
independence from the judiciary, so that the
President should not be subject to the judiciarys
Q: What are the rules on executive immunity?
whim. (Almonte v. Vasquez, G.R. No. 95367, May
23, 1995)
A:
A. (Rules on immunity during tenure) 2. Public convenience. The grant is to assure the
1. The President is immune from suit during his
exercise of presidential duties and functions free
tenure. (In re: Bermudez, G.R. No. 76180,
from any hindrance or distraction, considering
Oct. 24, 1986) that the presidency is a job that, aside from
2. An impeachment complaint may be filed
requiring all of the office-holders time, demands
against him during his tenure. (Art. XI)
undivided attention. (Soliven v. Makasiar, G.R.
3. The President may not be prevented from
No. 82585, Nov. 14, 1988)
instituting suit. (Soliven v. Makasiar, G.R. No.
82585, Nov. 14, 1988)
Q: What is the principle of command responsibility?
4. There is nothing in our laws that would
prevent the President from waiving the
A: According to Fr. Bernas, command responsibility,
privilege. The President may shed the in its simplest terms, means the responsibility of
protection afforded by the privilege. (Soliven
commanders for crimes committed by subordinate
v. Makasiar, G.R. No. 82585, Nov. 14, 1988)
members of the armed forces or other persons
5. Heads of departments cannot invoke the subject to their control in international wars or
Presidents immunity. (Gloria v. Court of
domestic conflict.
Appeals, G.R. No. 119903, Aug. 15, 2000)

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49 FACULTY OF CIVIL LAW
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It is an omission mode of individual criminal acts have been repeatedly or regularly committed
liability, whereby the superior is made responsible within his area of responsibility; or (c) members of his
for crimes committed by his subordinates for failing immediate staff or office personnel are involved.
to prevent or punish the perpetrators (as opposed to
crimes he ordered. (Rubrico, et al. vs. GMA, et As to the issue of failure to prevent or punish, it is
al., G.R. No. 183871, Feb. 18, 2010) important to note that as the commander-in-chief of
the armed forces, the President has the power to
Q: What are the elements of command effectively command, control and discipline the
responsibility? military. (Rodriguez vs. GMA, et al., G.R. Nos. 191805
&193160, Nov. 15, 2011.)
A: The elements are:
1. The existence of a superior-subordinate Q: Upon complaint of the incumbent President Al
relationship between the accused as superior Espaldon, CA Mindaro was charged with libel before
and the perpetrator of the crime as his the RTC. CA contends that if the proceedings ensue
subordinate; by virtue of the Presidents filing of his complaint-
2. The superior knew or had reason to know that affidavit, he may subsequently have to be a witness
the crime was about to be or had been for the prosecution, bringing her under the trial
committed; courts jurisdiction. May CA invoke the Presidents
3. The superior failed to take the necessary and immunity?
reasonable measures to prevent the criminal acts
or punish the perpetrators thereof. (Rodriguez A: No, the immunity of the President from suit is
vs. GMA, et al., G.R. Nos. 191805 &193160, Nov. personal to the President. It may be invoked only by
15, 2011.) the President and not by any other person. The
privilege of immunity from suit pertains to the
Q: Can it be applied in amparo proceedings? President by the virtue of the office and may be
invoked only by the holder of that office; and not by
A: It should, at most, be only to determine the author any other person in his behalf. (Soliven v. Makasiar,
who, at the first instance, is accountable for, and has G.R. No. 82585, Nov. 14, 1988)
the duty to address, the disappearance and
harassments complained of, so as to enable the Court PRESIDENTIAL PRIVILEGE
to devise remedial measures that may be appropriate
under the premises to protect rights covered by the Q: What is presidential or executive privilege?
writ of amparo. (Rubrico, et al. vs. GMA, et al., G.R.
No. 183871, Feb. 18, 2010) A: It is the power of the President and high-level
executive branch officers to withhold certain types of
Q: May the President be held liable for extrajudicial information from Congress, the courts, and ultimately
killings and enforced disappearances as the the public.
Commander-in-Chief of the Philippine military?
Q: How is the privilege invoked?
A: Yes. The President may be held accountable under
the principle of command responsibility. The A: Executive privilege must be invoked in relation to
President, being the commander-in-chief of all armed specific categories of information and not to
forces, necessarily possesses control over the military categories of persons.
that qualifies him as a superior within the purview of
the command responsibility doctrine. Note: While executive privilege is a constitutional concept,
a claim thereof may be valid or not depending on the
On the issue of knowledge, it must be pointed out ground invoked to justify it and the context in which it is
that although international tribunals apply a strict made. Noticeably absent is any recognition that executive
officials are exempt from the duty to disclose information
standard of knowledge, i.e., actual knowledge, the
by the mere fact of being executive officials. (Senate v.
same may nonetheless be established through Ermita, G.R. No. 169777, April 20, 2006)
circumstantial evidence. In the Philippines, a more
liberal view is adopted and superiors may be charged Q: Is the invocation of this privilege through
with constructive knowledge. Knowledge of the executive orders, prohibiting executive officials from
commission of irregularities, crimes or offenses is participating in legislative inquiries, violates the
presumed when: (a) the acts are widespread within constitutional right to information on matters of
the government officials area of jurisdiction; (b) the public concern of the people?

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EXECUTIVE DEPARTMENT

A: Yes. To the extent that investigations in aid of A: A formal claim of the privilege is required. A
legislation are generally conducted in public, formal and proper claim of executive privilege
however, any executive issuance tending to unduly requires a specific designation and description of the
limit disclosures of information in such investigations documents within its scope as well as precise and
necessarily deprives the people of information which, certain reasons for preserving their confidentiality.
being presumed to be in aid of legislation, is Without this specificity, it is impossible for a court to
presumed to be a matter of public concern. The analyze the claim short of disclosure of the very thing
citizens are thereby denied access to information sought to be protected.
which they can use in formulating their own opinions
on the matter before Congress opinions which Note: Congress must not require the President to state the
they can then communicate to their representatives reasons for the claim with such particularity as to compel
and other government officials through the various disclosure of the information which the privilege is meant
to protect. (Senate v. Ermita, G.R. No. 169777, April 20,
legal means allowed by their freedom of
2006).
expression.(Senate v. Ermita, G.R. No. 169777, April
20, 2006)
Q: Is the privilege absolute?
Q: Who can invoke executive privilege?
A: No. Claim of executive privilege is subject to
balancing against other interest. Simply put,
A:
confidentiality in executive privilege is not absolutely
1. President
protected by the Constitution. Neither the doctrine of
separation of powers, nor the need for confidentiality
Note: The privilege being an extraordinary power, it must
be wielded only by the highest official in the executive of high-level communications can sustain an absolute,
department. Thus, the President may not authorize her unqualified Presidential privilege of immunity from
subordinates to exercise such power. judicial process under all circumstances. (Neri v.
Senate,G.R. No. 180643, Mar. 25, 2008).
2. Executive Secretary, upon proper authorization
from the President Q: Sec. 1 of EO 464 required all heads of
departments in the Executive branch to secure the
Note: The Executive Secretary must state that the consent of the President before appearing in an
authority is By order of the President, which means he inquiry conducted by either House of Congress,
personally consulted with her. pursuant to Art. VI, Sec. 22 of the Constitution. Does
this section applies onlyto question hour? Is it valid?
Q: What is required if an official is summoned by
Congress on a matter which in his own judgment A: Section 1, in view of its specific reference to
might be covered by executive privilege? Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of
A: When an official is being summoned by Congress legislation, must be construed as limited in its
on a matter which, in his own judgment, might be application to appearances of department heads in
covered by executive privilege, he must be afforded the question hour contemplated in the provision of
reasonable time to inform the President or the said Section 22 of Article VI. The reading is dictated
Executive Secretary of the possible need for invoking by the basic rule of construction that issuances must
the privilege. This is necessary in order to provide the be interpreted, as much as possible, in a way that will
President or the Executive Secretary with fair render it constitutional.
opportunity to consider whether the matter indeed
calls for a claim of executive privilege. If, after the The requirement then to secure presidential consent
lapse of that reasonable time, neither the President under Section 1, limited as it is only to appearances in
nor the Executive Secretary invokes the privilege, the question hour, is valid on its face. For under
Congress is no longer bound to respect the failure of Section 22, Article VI of the Constitution, the
the official to appear before Congress and may then appearance of department heads in the question
opt to avail of the necessary legal means to compel hour is discretionary on their part. (Senate v. Ermita,
his appearance. (Senate v. Ermita, G.R. No. 169777, G.R. No. 169777, April 20, 2006)
April 20, 2006)
Note: Sec. 1 of EO 464 cannot, however, be applied to
Q: What is the requirement in invoking the appearances of department heads in inquiries in aid of
privilege? legislation. Congress is not bound in such instances to
respect the refusal of the department head to appear in

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51 FACULTY OF CIVIL LAW
Political and International Law
such inquiry, unless a valid claim of privilege is Q: What are the elements of presidential
subsequently made, either by the President herself or by communications privilege?
the Executive Secretary. (Senate v. Ermita, G.R. No. 169777,
April 20, 2006)
A:
1. The protected communication must relate to a
Q: What are the varieties of executive privilege? quintessential and non-delegable presidential
power.
A:
1. State secret privilege invoked by Presidents on 2. The communication must be authored or
the ground that the information is of such nature solicited and received by a close advisor of the
that its disclosure would subvert crucial military President or the President himself. The judicial
or diplomatic objectives. test is that an advisor must be in operational
proximity with the President.
2. Informers privilege privilege of the government
not to disclose the identity of persons who 3. The presidential communications privilege
furnish information in violations of law to officers remains a qualified privilege that may be
charged with the enforcement of the law. overcome by a showing of adequate need, such
that the information sought likely contains
3. Generic privilege for internal deliberations. Said important evidence and by the unavailability of
to attach to intra-governmental documents the information elsewhere by an appropriate
reflecting advisory opinions, recommendations investigating authority.
and deliberations comprising part of a process by
which governmental decisions and policies are Q: Are presidential communications presumptively
formulated. privileged?
Note: In determining the validity of a claim of privilege, the
A: Yes. The presumption is based on the Presidents
question that must be asked is not only whether the
requested information falls within one of the traditional generalized interest in confidentiality. The privilege is
privileges, but also whether that privilege should be necessary to guarantee the candor of presidential
honored in a given procedural setting. advisors and to provide the President and those who
assist him with freedom to explore alternatives in the
Q: Differentiate Presidential Communications process of shaping policies and making decisions and
Privilege from Deliberative Process Privilege. to do so in a way many could be unwilling to express
except privately. The presumption can be overcome
A: only by mere showing of public need by the branch
PRESIDENTIAL seeking access to conversations. The courts are
DELIBERATIVE PROCESS enjoined to resolve the competing interests of the
COMMUNICATIONS
PRIVILEGE political branches of the government in the manner
PRIVILEGE
Pertains to Includes advisory that preserves the essential functions of each
communications, opinions, Branch.
documents or other recommendations and
materials that reflect deliberations comprising Q: The House of Representatives House Committee
presidential decision- part of a process by conducted an inquiry on the Japan-Philippines
making and deliberations which governmental Economic Partnership Agreement (JPEPA), then
that the President decisions and policies being negotiated by the Philippine Government. The
believes should remain are formulated House Committee requested DTI Usec. Jamie Arlos
confidential to furnish it with a copy of the latest draft of the
Applies to decision- Applies to decision- JPEPA. Arlos replied that he shall provide a copy
making of the President making of executive thereof once the negotiations are completed.
officials
Rooted in the Rooted in common law A petition was filed with the SC which seeks to
constitutional principle of privileges obtain a copy of the Philippine and Japanese offers
separation of powers and submitted during the negotiation process and all
the Presidents unique pertinent attachments and annexes thereto. Arlos
constitutional role invoked executive privilege based on the ground
that the information sought pertains to diplomatic
negotiations then in progress. On the other hand,

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EXECUTIVE DEPARTMENT

Akbayan for their part invoke their right to therefor (e.g. Sec. of Finance is head of
information on matters of public concern. Monetary Board)

Are matters involving diplomatic negotiations Note: This prohibition must not, however, be construed
covered by executive privilege? as applying to posts occupied by the Executive officials
without additional compensation in an ex-officio
capacity, as provided by law and as required by the
A: Yes. It is clear that while the final text of the JPEPA
primary functions of the said officials office. (National
may not be kept perpetually confidential, the offers Amnesty Commission v. COA, G.R. No. 156982,
exchanged by the parties during the negotiations September 2, 2004)
continue to be privilege even after the JPEPA is
published. Disclosing these offers could impair the 3. Shall not practice, directly or indirectly, any other
ability of the Philippines to deal not only with Japan profession during their tenure
but with other foreign governments in future
negotiations. (AKBAYAN Citizens Action Party v. 4. Shall not participate in any business
Aquino, G.R No. 170516, July 16, 2008)
5. Shall not be financially interested in any contract
Note: Such privilege is only presumptive. with, or in any franchise, or special privilege
granted by the Government, including GOCCs
Q: Matters involving diplomatic negotiations are
covered by executive privilege. However, such 6. Shall avoid conflict of interest in conduct of office
privilege is only presumptive. How can this
presumption be overcome? 7. Shall avoid nepotism (Sec. 13, Art. VII)

A: Recognizing a type of information as privileged Note: The spouse and relatives by consanguinity or
th
does not mean that it will be considered privileged in affinity within the 4 civil degree of the President shall
all instances. Only after a consideration of the context not, during his tenure, be appointed as:
in which the claim is made may it be determined if a. Members of the Constitutional Commissions;
there is a public interest that calls for the disclosure b. Office of the Ombudsman;
of the desired information, strong enough to c. Secretaries;
d. Undersecretaries;
overcome its traditionally privileged status.
e. Chairmen or heads of bureaus or offices,
(AKBAYAN Citizens Action Party v. Aquino, et al., G.R
including GOCCs and their subsidiaries.
No. 170516, July 16, 2008)
If the spouse, etc., was already in any of the above
PROHIBITIONS, INHIBITIONS AND offices at the time before his/her spouse became
DISQUALIFICATIONS President, he/she may continue in office. What is
prohibited is appointment and reappointment, not
Q: What are the prohibitions attached to the continuation in office.
President, Vice-President, Cabinet Members, and
their deputies or assistants? Spouses, etc., can be appointed to the judiciary and
as ambassadors and consuls.
A: The President, Vice-President, Members of the
Cabinet, and their deputies or assistants, unless Q: Christian, the Chief Presidential Legal Counsel
otherwise provided in this Constitution: (CPLC), was also appointed as Chairman of the
1. Shall not receive any other emolument from the PCGG. May the two offices be held by the same
government or any other source (Sec. 6, Art. VII) person?

2. Shall not hold any other office or employment A: No. The two offices are incompatible. Without
during their tenure unless: question, the PCGG is an agency under the Executive
a. Otherwise provided in the Constitution (e.g. Department. Thus, the actions of the PCGG Chairman
VP can be appointed as a Cabinet Member are subject to the review of the CPLC. (Public Interest
without the need of confirmation by COA; Group v. Elma, G.R. No. 138965, June 30, 2006)
Sec. of Justice sits on Judicial and Bar
Council) Q: Pres. GMA appointed Anthony as the Acting
b. The positions are ex-officio and they do not Secretary of Justice. After a couple of days, PGMA
receive any salary or other emoluments designated Anthony as the Acting Solicitor General
in a concurrent capacity. Ben contested the

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53 FACULTY OF CIVIL LAW
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appointment of Anthony on the ground that the and, the Secretary of Justice being ex-
appointment violated Section 13, Article VII of the officio member of the Judicial and Bar Council by
1987 Constitution which expressly prohibits the virtue of Section 8 (1), Article VIII.
President, Vice-President, the Members of the
Cabinet, and their deputies or assistants from Being designated as the Acting Secretary of Justice
holding any other office or employment during their concurrently with his position of Acting Solicitor
tenure unless otherwise provided in the General, therefore, Anthony was undoubtedly
Constitution. On the other hand, Anthony claims covered by Section 13, Article VII, whose text and
that according to Section 7, paragraph (2), Article IX- spirit were too clear to be differently read. Hence,
B of the 1987 Constitution, his appointment to such Anthony could not validly hold any other office or
positions is outside the coverage of the prohibition employment during his tenure as the Acting Solicitor
under Sec. 13 of Art. VII as it falls into one of the General, because the Constitution has not otherwise
exceptions as being allowed by law or by the so provided. (Funa v. Agra, G.R. No. 191644, February
primary functions of his position. Does the 19, 2013)
designation of Anthony as the Acting Secretary of
Justice, concurrently with his position of Acting POWERS OF THE PRESIDENT
Solicitor General, violate the constitutional
prohibition against dual or multiple offices for the
EXECUTIVE AND ADMINISTRATIVE POWERS IN
Members of the Cabinet and their deputies and
GENERAL
assistants?
Q: What is executive power?
A: Yes. While all other appointive officials in the civil
service are allowed to hold other office or A: It is the power of carrying out the laws into
employment in the government during their tenure practical operation and enforcing their due
when such is allowed by law or by the primary observance. (National Electrification Administration v.
functions of their positions, members of the Cabinet, CA, G.R. No. 143481, Feb. 15, 2002). It is the legal and
their deputies and assistants may do so only when political functions of the President involving the
expressly authorized by the Constitution itself. In exercise of discretion.
other words, Section 7, Article IX-B is meant to lay
down the general rule applicable to all elective and Q: To whom is executive power vested?
appointive public officials and employees, while
Section 13, Article VII is meant to be the exception A: It is vested in the President of the Philippines. The
applicable only to the President, the Vice-President, President shall have control of all executive
Members of the Cabinet, their deputies and departments, bureaus and offices. He shall ensure
assistants. Since the evident purpose of the framers that laws are faithfully executed. (Sec. 17, Art. VII,
of the 1987 Constitution is to impose a stricter 1987 Constitution)
prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants Q: What is the faithful execution clause?
with respect to holding multiple offices or
employment in the government during their tenure, A: The power to take care that the laws be faithfully
the exception to this prohibition must be read with executed makes the President a dominant figure in
equal severity. On its face, the language of Section the administration of the government. The law he is
13, Article VII is prohibitory so that it must be supposed to enforce includes the Constitution,
understood as intended to be a positive and statutes, judicial decisions, administrative rules and
unequivocal negation of the privilege of holding regulations and municipal ordinances, as well as
multiple government offices or employment. Verily, treaties entered into by the government.
wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a Q: What is the power of Administrative
positive and unequivocal negation. The phrase Reorganization?
"unless otherwise provided in this Constitution"
must be given a literal interpretation to refer only to A: The President has the continuing authority to
those particular instances cited in the Constitution reorganize the national government, which includes
itself, to wit: the Vice-President being appointed as a the power to group, consolidate bureaus and
member of the Cabinet under Section 3, par. (2), agencies, to abolish offices, to transfer functions, to
Article VII; or acting as President in those instances create and classify functions, services and activities
provided under Section 7, pars. (2) and (3), Article VII; and to standardize salaries and materials; it is

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2013 GOLDEN NOTES 54
EXECUTIVE DEPARTMENT

effected in good faith if it is for the purpose of are necessary for the President to comply with his
economy or to make bureaucracy more efficient. duties under he Constitution. (Marcos v. Manglapus,
(MEWAP v. Executive Secretary, G.R. No. 160093, July G.R. No. 88211, Oct. 27, 1989).
31, 2007)
Q: What is administrative power?
Q: What is the scope of executive power?
A: Administrative power is concerned with the work
A: of applying policies and enforcing orders as
1. Executive power is vested in the President of the determined by proper governmental organs. It
Philippines. (Sec. 1, Art. VII, 1987 Constitution) enables the President to fix a uniform standard of
2. It is not limited to those set forth in the administrative efficiency and check the official
Constitution (Residual powers). (Marcos v. conduct of his agents. To this end, he can issue
Manglapus, G.R. No. 88211, Oct. 27, 1989) administrative orders, rules and regulations. (Ople v.
3. Privilege of immunity from suit is personal to the Torres, G.R. No. 127685, July 23, 1998).
President and may be invoked by him alone. It
may also be waived by the President, as when he POWER OF APPOINTMENT
himself files suit. (Soliven v. Makasiar, G.R. No.
82585, Nov. 14, 1988) Q: What is appointment, and how is it made?
4. The President cannot dispose of state property
unless authorized by law. (Laurel v. Garcia, G.R. A: It is the selection, by the authority vested with the
No. 92013, July 25, 1990) power, of an individual who is to exercise the
functions of a given office. It may be made verbally
Q: What are the specific powers of the President? but it is usually done in writing through what is called
the commission.
A: He is the repository of all executive power, such as:
1. Appointing power (Sec. 16, Art. VII) Q: What is the nature of the appointing power of the
2. Power of control over all executive departments, President?
bureaus and offices (Sec. 17, Art. VII)
3. Commander-in-Chief powers (calling-out power, A: The power to appoint is executive in nature. While
power to place the Philippines under martial law, Congress and the Constitution in certain cases may
and power to suspend the privilege of the writ of prescribe the qualifications for particular offices, the
habeas corpus) (Sec. 18, Art. VII) determination of who among those who are qualified
4. Pardoning power (Sec. 19, Art. VII) will be appointed is the Presidents prerogative.
5. Borrowing power (Sec. 20, Art. VII) (Pimentel, et al. v. Ermita, et al., G.R. No. 164978, Oct.
6. Diplomatic/Treaty-making power (Sec. 21, Art. 13, 2005).
VII)
7. Budgetary power (Sec. 22, Art. VII) Q: What are the kinds of Presidential
8. Informing power (Sec. 23, Art. VII) Appointments?
9. Veto power (Sec. 27, Art. VI)
10. Power of general supervision over local A:
governments (Sec. 4, Art. X) 1. Appointments made by an Acting President
11. Power to call special session (Sec. 15, Art. VI) 2. Midnight Appointment (Sec. 15, Art. VII)
3. Regular Presidential Appointments, with or
Q: Is the power of the President limited only to such without the confirmation by the CA
specific powers enumerated in the Constitution? 4. Ad-interim Appointments

A: No. The powers of the President cannot be said to Q: Are the appointments made by an acting
be limited only to the specific power enumerated in President effective?
the Constitution. Executive power is more than the
sum of specific powers so enumerated. The framers A: These shall remain effective unless revoked by the
did not intend that by enumerating the powers of the elected President within 90 days from his assumption
President he shall exercise those powers and no or re-assumption of office. (Sec. 14, Art. VII)
other. Whatever power inherent in the government
that is neither legislative nor judicial has to be Q: What is designation?
executive. These unstated residual powers are
implied from the grant of executive power and which A: It is the imposition of additional duties on a person

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already in the public service. It is considered only as Note: PNP of equivalent ranks and the Philippine Coast
an acting or temporary appointment, which does not Guard are not included.
confer security of tenure on the person named.
(Binamira v. Garrucho, G.R. No. 92008, July 30, 1990) 4. Other officers of the government whose
appointments are vested in the President in the
Note: The President has the power to temporarily Constitution (Sec. 16, Art. VII), such as:
designate an officer already in the government service or a. Chairmen and members of the CSC,
any other competent person to perform the functions of an COMELEC and COA (Sec. 1[2], Art. IX-B,
office in the executive branch. In no case shall the C, D)
temporary designation exceed one year. b. Regular members of the JBC (Sec. 8[2],
Art. VIII)
Q: What are the presidential appointments that are
in need of a prior recommendation or nomination Q: What is the appointing procedure for those that
by the Judicial and Bar Council? need CA confirmation?

A: A:
1. Members of the Supreme Court and all lower 1. Nomination by the President
courts (Sec. 9, Art. VIII) 2. Confirmation by the CA
2. Ombudsman and his 5 deputies 3. Issuance of commission
4. Acceptance by the appointee (Cruz, Philippine
Q: What appointments are made solely by the Political Law, 2002 ed., p. 207).
President?
Note: At anytime, before all four steps have been complied
A: with, the President can withdraw the nomination and
1. Those vested by the Constitution on the appointment. (Lacson v. Romero, G.R. No. L-3081, Oct. 14,
President alone; 1949)
2. Those whose appointments are not otherwise
provided by law; Q: What is the appointing procedure for those that
3. Those whom he may be authorized by law to do not need CA confirmation?
appoint; and
4. Those other officers lower in rank whose A:
appointment is vested by law in the President 1. Appointment
alone. (Sec. 16, Art. VII) 2. Acceptance

COMMISSION ON APPOINTMENTS Q: Distinguish an ad interim appointment from an


CONFIRMATION appointment in an acting capacity.

Q: What are four instances where confirmation of A:


the Commission on Appointments is required? AD INTERIM APPOINTMENT IN AN
APPOINTMENT ACTING CAPACITY
A: Made if Congress is not Made at any time there
1. Heads of executive departments in session is vacancy, i.e., whether
Congress is in session or
GR: Appointment of cabinet secretaries requires not
confirmation. Requires confirmation of Does not require
CA confirmation of CA
XPN: Vice-president may be appointed as a Permanent in nature Temporary in nature
member of the Cabinet and such Appointee enjoys Appointee does not
appointment requires no confirmation. (Sec. security of tenure enjoy security of tenure
3(2), Art. VII)
Q: Is the act of the President in appointing acting
2. Ambassadors, other public ministers and consuls secretaries constitutional, even without the consent
those connected with the diplomatic and of the Commission on Appointments while Congress
consular services of the country. is in session?

3. Officers of AFP from the rank of colonel or naval A: Yes. Congress, through a law, cannot impose on
captain the President the obligation to appoint automatically

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the undersecretary as her temporary alter ego. An MIDNIGHT APPOINTMENTS


alter ego, whether temporary or permanent, holds a
position of great trust and confidence. The office of a Q: Sec. 15, Art. VII of the 1987 Constitution prohibits
department secretary may become vacant while the President from making appointments two
Congress is in session. Since a department secretary is months before the next presidential elections and
the alter ego of the President, the acting appointee to up to the end of his term. To what types of
the office must necessarily have the Presidents appointment is said prohibition directed against?
confidence. (Pimentel v. Ermita, G.R. No. 164978, Oct.
13, 2005) A: Section 15, Article VII is directed against two types
of appointments:
Note: Acting appointments cannot exceed one year. 1. Those made for buying votes refers to those
(Section 17[3], Chapter 5, Title I, Book III of EO 292). appointments made within two months
preceding the Presidential election and are
Q: May an appointment be the subject of a judicial similar to those which are declared election
review? offenses in the Omnibus Election Code; and
2. Those made for partisan considerations
A: Generally, no. Appointment is a political question. consists of the so-called midnight
So long as the appointee satisfies the minimum appointments. (In Re: Hon. Mateo A. Valenzuela
requirements prescribed by law for the position, the and Hon. Placido B. Vallarta, A.M. No. 98-5-01-SC
appointment may not be subject to judicial review. Nov. 9, 1998)

Q: What are the limitations regarding the appointing Q: Does an outgoing President have the power to
power of the president? appoint the next Chief Justice within the period
starting two months before the presidential
A: elections until the end of the presidential term?
1. The spouse and relatives by consanguinity or Discuss thoroughly.
affinity within the 4th civil degree of the President
shall not, during his "tenure" be appointed as: A: Yes. Article VII is devoted to the Executive
a. Members of the Constitutional Department, and, among others, it lists the powers
Commissions; vested by the Constitution in the President. The
b. Member of the Office of Ombudsman; presidential power of appointment is dealt with in
c. Secretaries; Sections 14, 15 and 16 of the Article. In particular,
d. Undersecretaries; Section 9 states that the appointment of Supreme
e. Chairmen or heads of bureaus or offices, Court Justices can only be made by the President
including government-owned or upon the submission of a list of at least three
controlled corporations and their nominees by the JBC; Section 4(1) of the Article
subsidiaries. (Sec. 13[2], Art. VII) mandates the President to fill the vacancy within 90
days from the occurrence of the vacancy.
2. Appointments made by the acting-President shall
remain effective unless revoked within 90 days Had the framers intended to extend the prohibition
from assumption of office by elected President contained in Section 15, Article VII to the
(Sec. 14, Art. VII) appointment of Members of the Supreme Court, they
could have explicitly done so. They could not have
3. GR: Two months immediately before the next ignored the meticulous ordering of the provisions.
Presidential elections (2nd Monday of May), and up They would have easily and surely written the
to the end of his "term" (June 30), a President (or prohibition made explicit in Section 15, Article VII as
Acting President) shall not make appointments. being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself,
XPN: Temporary appointments, to executive most likely in Section 4 (1), Article VIII. That such
positions, when continued vacancies therein specification was not done only reveals that the
will prejudice public service (Sec. 15, Art. VII) prohibition against the President or Acting President
(e.g. Postmaster); or endanger public safety making appointments within two months before the
(e.g. Chief of Staff). next presidential elections and up to the end of the
Presidents or Acting Presidents term does not refer
to the Members of the Supreme Court (De Castro v.
JBC, G.R. No. 191002, Mar. 17, 2010).

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Note: Ban on midnight appointments is applicable in the Note: The Presidents power over GOCCs comes not from
entire judiciary except on the Supreme Court (De Castro v. the Constitution, but from statute. Hence, it may be taken
JBC, G.R. Nos. G. R. No. 191002, March 17, 2010). away by statute.

POWER OF REMOVAL The President has full control of all the members of his
Cabinet. He may appoint them as he sees fit, shuffle them
at pleasure, and replace them in his discretion without any
Q: Where does the President derive his power of
legal inhibition whatever. However, such control is
removal? exercisable by the President only over the acts of his
subordinates and not necessarily over the subordinate
A: The President derives his implied power of himself. (Ang-Angco v. Castillo, G.R. No.L-17169, Nov. 30,
removal from other powers expressly vested in him. 1963)
1. It is implied from his power to appoint.
2. Being executive in nature, it is implied from the DOCTRINE OF QUALIFIED POLITICAL AGENCY
constitutional provision vesting the executive
power in the President. Q: What is the doctrine of qualified political agency
3. It may be implied from his function to take care or alter ego principle?
that laws be properly executed; for without it, his
orders for law enforcement might not be A: It means that the acts of the secretaries of the
effectively carried out. Executive departments performed and promulgated
4. The power may be implied from the Presidents in the regular course of business are presumptively
control over the administrative departments, the acts of the Chief Executive. (Villena v. Secretary of
bureaus, and offices of the government. Without the Interior, G.R. No. L-46570, April 21, 1939)
the power to remove, it would not be always
possible for the President to exercise his power Q: What are the exceptions to the alter ego
of control. (Sinco, Philippine Political Law, 1954 doctrine?
ed., p. 275)
A:
Q: Can the President remove all the officials he 1. If the acts are disapproved or reprobated by the
appointed? President;
2. If the President is required to act in person by
A: No. Not all officials appointed by the President are law or by the Constitution.
also removable by him since the Constitution
prescribes certain methods for the separation from Note: The SC held that the Secretary of Finance can act as
the public service of such officers. (Cruz, Philippine an agent of the Legislative Dept. to determine and declare
Political Law, 2002 ed., pp. 209-210) the event upon which its expressed will is to take effect.
Thus, being the agent of Congress and not of the President,
the latter cannot alter, or modify or nullify, or set aside the
Note: Members of the career service of the Civil Service
findings of the Secretary of Finance and to substitute the
who are appointed by the President may be directly
judgment of the former for that of the latter. (Abakada
disciplined by him (Villaluz v. Zaldivar, G.R. No. L-22754,
Guro v. Executive Secretary, G.R. No. 168056, Sept. 1, 2005)
Dec. 31, 1965) provided that the same is for cause and in
accordance with the procedure prescribed by law.
Q: What is the reason for the alter ego doctrine?
Members of the Cabinet and such officers whose continuity
in office depends upon the President may be replaced at A: Since the President is a busy man, he is not
any time. Legally speaking, their separation is effected not expected to exercise the totality of his power of
by the process of removal but by the expiration of their control all the time. He is not expected to exercise all
term. (Aparri v. CA, G.R. No. L-30057, Jan. 31, 1984) his powers in person. He is expected to delegate
some of them to men of his confidence, particularly
POWER OF CONTROL AND SUPERVISION to members of his Cabinet.

Q: What is the power of control? Note: Applying this doctrine, the power of the President to
reorganize the National Government may be validly
A: Control is the power of an officer to alter or modify delegated to his Cabinet Members exercising control over a
or nullify or to set aside what a subordinate has done particular executive department. (DENR v. DENR Region XII
in the performance of his duties and to substitute Employees, G.R. No. 149724, August 19, 2003)
ones own judgment for that of a subordinate.

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EXECUTIVE DEPARTMENTS AND OFFICES If the rules are not The supervisor does not
followed, the officer have the discretion to
Q: Can Department Heads exercise power of control in control may, in his modify or replace them.
in behalf of the President? discretion, order the If the rules are not
act undone or re-done observed, he may order
A: Yes. The Presidents power of control means his by his subordinate or the work done or re-
power to reverse the judgment of an inferior officer. he may even decide to done but only to
It may also be exercised in his behalf by Department do it himself. conform to the
Heads. prescribed rules. (Drilon
v. Lim, G.R. No. 112497,
Note: The Sec. of Justice may reverse the judgment of a Aug. 4, 1994)
prosecutor and direct him to withdraw information already
filed. One, who disagrees, however, may appeal to the Note: The power of supervision does not include the power
Office of the President in order to exhaust administrative of control; but the power of control necessarily includes the
remedies prior filing to the court. power of supervision.

Q: Can the Executive Secretary reverse the decision MILITARY POWERS


of another department secretary? In Re COMMANDER-IN-CHIEF POWERS

A: Yes. The Executive Secretary when acting by Q: What is the scope of the Presidents Commander-
authority of the President may reverse the decision in-Chief Powers?
of another department secretary. (Lacson-
Magallanes Co., Inc. v. Pao, G.R. No. L-27811, Nov. A:
17, 1967) 1. Command of the Armed Forces The
Commander-in-Chief clause vests on the
LOCAL GOVERNMENT UNITS President, as Commander-in-Chief, absolute
authority over the persons and actions of the
Q: What is the power of general supervision? members of the armed forces. (Gudani v. Senga,
G.R. No. 170165, Aug. 15, 2006)
A: This is the power of a superior officer to ensure
that the laws are faithfully executed by subordinates. Note: By making the President the Commander-in-
The power of the President over LGUs is only of Chief of all the armed forces, the principle announced
general supervision. Thus, he can only interfere in the in Art. II, Sec. III is bolstered. Thus, the Constitution
affairs and activities of a LGU if he finds that the latter lessens the danger of a military take-over of the
acted contrary to law. The President or any of his government in violation of its republican nature.
alter egos cannot interfere in local affairs as long as
the concerned LGU acts within the parameters of the The President as Commander-in-Chief can prevent the
Army General from appearing in a legislative
law and the Constitution. Any directive, therefore, by
investigation and, if disobeyed, can subject him to
the President or any of his alter egos seeking to alter court martial. (Gudani v. Senga, G.R. No. 170165, Aug.
the wisdom of a law-conforming judgment on local 15, 2006)
affairs of a LGU is a patent nullity, because it violates
the principle of local autonomy, as well as the 2. Calling-out powers Call the armed forces to
doctrine of separation of powers of the executive and prevent or suppress lawless violence, invasion, or
the legislative departments in governing municipal rebellion. The only criterion for the exercise of
corporations. (Dadole v. COA, G.R. No. 125350, Dec. this power is that whenever it becomes
3, 2002) necessary.

Q: Distinguish control from supervision. Note: The declaration of a state of emergency is


merely a description of a situation which authorizes
A: her to call out the Armed Forces to help the police
CONTROL SUPERVISION maintain law and order. It gives no new power to her,
An officer in control The supervisor or nor to the police. Certainly, it does not authorize
warrantless arrests or control of media. (David v.
lays down the rules in superintendent merely
Ermita, G.R. No. 171409, May 3, 2006)
the doing of an act. sees to it that the rules
are followed, but he The Constitution does not require the President to
himself does not lay declare a state of rebellion to exercise her calling out
down such rules. power. Section 18, Article VII grants the President, as

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59 FACULTY OF CIVIL LAW
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Commander-in-Chief a sequence of graduated 3. Duration: Not more than 60 days following which
powers. (Sanlakas v. Executive Secretary, G.R. No. it shall be automatically lifted unless extended by
159085, Feb. 3, 2004) Congress.
4. Duty of the President to report to Congress:
3. Suspension of the privilege of the writ of habeas within 48 hours personally or in writing.
corpus 5. Authority of Congress to revoke or extend the
effectivity of proclamation: by majority vote of all
Note: A writ of habeas corpus is an order from the
of its members voting jointly.
court commanding a detaining officer to inform the
court if he has the person in custody, and what is his
Note: Once revoked by Congress, the President cannot set
basis in detaining that person.
aside the revocation.
The privilege of the writ is that portion of the writ
requiring the detaining officer to show cause why he Q: What are the limitations on the declaration of
should not be tested. What is permitted to be martial law?
suspended by the President is not the writ itself but its
privilege. A: Martial law does not:
1. Suspend the operation of the Constitution;
4. He may proclaim martial law over the entire 2. Supplant the functioning of the civil courts or
Philippines or any part thereof. legislative assemblies;
3. Authorize conferment of jurisdiction over
Q: What are the requisites for the suspension of the civilians where civil courts are able to function;
privilege of the writ of habeas corpus?
Note: Civilians cannot be tried by military courts if the
A: civil courts are open and functioning (Open Court
1. There must be an invasion or rebellion; and Doctrine). (Olaguer v. Military Commission No. 34, G.R.
2. Public safety requires the suspension No. L-54558, May 22, 1987).

Note: The invasion and rebellion must be actual and not 4. Automatically suspend the privilege of the writ of
merely imminent. habeas corpus. (Sec. 18 (2), Art. VII)

Q: Is the right to bail impaired if the privilege of the Note: When martial law is declared, no new powers are
writ of habeas corpus is suspended? given to the President; no extension of arbitrary authority is
recognized; no civil rights of individuals are suspended. The
relation of the citizens to their State is unchanged. The
A: The right to bail shall not be impaired even when
Supreme Court cannot rule upon the correctness of the
the privilege of the writ of habeas corpus is Presidents actions but only upon its arbitrariness.
suspended. (Sec. 13, Art. III, 1987 Constitution).
Q: What are the ways to lift the proclamation of
Q: What are the limitations on the suspension of the martial law?
privilege of writ of habeas corpus?
A:
A: 1. Lifting by the President himself
1. Applies only to persons judicially charged for 2. Revocation by Congress
rebellion or offenses inherent in or directly 3. Nullification by the SC
connected with invasion; and 4. By operation of law after 60 days (Sec. 18, Art.
2. Anyone arrested or detained during suspension VII)
must be charged within 3 days. Otherwise, he
should be released. Q: Is the actual use of the armed forces by the
President subject to judicial review?
Q: State the guidelines in the declaration of martial
law. A: No. While the suspension of the privilege of the
writ of habeas corpus and the proclamation of martial
A: law is subject to judicial review, the actual use by the
1. There must be an invasion or rebellion, and President of the armed forces is not. Thus, troop
2. Public safety requires the proclamation of martial deployments in times of war are subject to the
law all over the Philippines or any part thereof. Presidents judgment and discretion. (IBP v. Zamora,
G.R. No. 141284, Aug. 15, 2000)

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Q: May the President, in the exercise of peace corpus. They exercise the power, not only
negotiations, agree to pursue reforms that would sequentially, but in a sense jointly since, after
require new legislation and constitutional the President has initiated the proclamation or
amendments, or should the reforms be restricted the suspension, only the Congress can maintain
only to those solutions which the present laws the same based on its own evaluation of the
allow? situation on the ground, a power that the
President does not have.(Fortun v. Macapagal-
A: If the President is to be expected to find means for Arroyo, G.R. No. 190293, March 20, 2012)
bringing this conflict to an end and to achieve lasting
peace in Mindanao, then she must be given the Q: Can the Supreme Court inquire into the factual
leeway to explore, in the course of peace bases of the Presidents declaration of a state of
negotiations, solutions that may require changes to national emergency?
the Constitution for their implementation. So long as
the President limits herself to recommending these A: While it is true that the Court may inquire into the
changes and submits to the proper procedure for factual bases for the Presidents exercise of the above
constitutional amendment and revision, her mere power, it would generally defer to her judgment on
recommendation need not be construed as the matter. It is clearly to the President that the
unconstitutional act. Given the limited nature of the Constitution entrusts the determination of the need
Presidents authority to propose constitutional for calling out the armed forces to prevent and
amendments, she cannot guarantee to any third suppress lawless violence. Unless it is shown that
party that the required amendments will eventually such determination was attended by grave abuse of
be put in place, nor even be submitted to a plebiscite. discretion, the Court will accord respect to the
The most she could do is submit these proposals as Presidents judgment. (Datu Zaldy Uy Ampatuan, et
recommendations either to Congress or the people, al. v. Hon. Ronaldo Puno, et al., G.R. No. 190259. June
in whom constituent powers are vested. (Province of 7, 2011)
North Cotabato v. Govt of the Republic of the
Philippines Peace panel on Ancestral Domain, G.R. No. Q: Can the Supreme Court review the factual bases
183591, Oct.14, 2008) of the promulgation of a suspension of the privilege
of the writ of habeas corpus?
Q: Is martial law a purely executive power?
A: Consequently, although the Constitution reserves
A: No. Although Article VII, Sec 18 of the 1987 to the Supreme Court the power to review the
Constitution vests in the President the power to sufficiency of the factual basis of the proclamation or
proclaim martial law or suspend the privilege of the suspension in a proper suit, it is implicit that the
writ of habeas corpus, he shares such power with the Court must allow Congress to exercise its own review
Congress. Thus: powers, which is automatic rather than
initiated. Only when Congress defaults in its express
1. The Presidents proclamation or suspension is duty to defend the Constitution through such review
temporary, good for only 60 days; should the Supreme Court step in as its final
2. He must, within 48 hours of the proclamation or rampart. The constitutional validity of the Presidents
suspension, report his action in person or in proclamation of martial law or suspension of the writ
writing to Congress; of habeas corpus is first a political question in the
3. Both houses of Congress, if not in session must hands of Congress before it becomes a justiciable one
jointly convene within 24 hours of the in the hands of the Court. (Fortun vs. PGMA, March
proclamation or suspension for the purpose of 20, 2012)
reviewing its validity; and
4. The Congress, voting jointly, may revoke or Q: Can the President deploy AFP and PNP personnel
affirm the Presidents proclamation or pursuant to a declaration of a state of emergency in
suspension, allow their limited effectivity to 3 places in Mindanao without an act of Congress?
lapse, or extend the same if Congress deems
warranted. A: The President did not proclaim a national
emergency, only a state of emergency in the three
It is evident that under the 1987 Constitution the places mentioned. And she did not act pursuant to
President and the Congress act in tandem in any law enacted by Congress that authorized her to
exercising the power to proclaim martial law or exercise extraordinary powers. The calling out of the
suspend the privilege of the writ of habeas armed forces to prevent or suppress lawless violence

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in such places is a power that the Constitution consequence, pardon granted after conviction frees
directly vests in the President. She did not need a the individual from all the penalties and legal
congressional authority to exercise the same. (Datu disabilities and restores him to all his civil rights. But
Zaldy Uy Ampatuan, et al. v. Hon. Ronaldo Puno, et unless expressly grounded on the persons innocence
al., G.R. No. 190259, June 7, 2011) (which is rare), it cannot bring back lost reputation for
honesty, integrity and fair dealing. (Monsanto v.
PARDONING POWER Factoran, G.R. No. 78239, Feb. 9, 1989)

Q: What is the purpose of executive clemency? Can Note: Because pardon is an act of grace, no legal power can
it be delegated? compel the President to give it. Congress has no authority
to limit the effects of the Presidents pardon, or to exclude
from its scope any class of offenders. Courts may not
A: Executive clemency is granted for the purpose of
inquire into the wisdom or reasonableness of any pardon
relieving the harshness of the law or correcting
granted by the President.
mistakes in the administration of justice. The power
of executive clemency is a non-delegable power and Q: What are the kinds of pardon? Distinguish each
must be exercised by the President personally. kind.
Note: Clemency is not a function of the judiciary; it is an
A:
executive function. The grant is discretionary, and may not
be controlled by the legislature or reversed by the court, As to presence of condition:
save only when it contravenes its limitations. It includes a. Absolute pardon - one extended without any
cases involving both criminal and administrative cases. conditions
b. Conditional pardon - one under which the convict
Q: What is the scope of the Presidents pardoning is required to comply with certain requirements
power? (Forms of executive clemency)
As to effect:
A: The President may grant the following: [Pa R C Re a. Plenary pardon - extinguishes all the penalties
A] imposed upon the offender, including accessory
1. Pardons (conditional or plenary) disabilities partial pardon does not extinguish all
2. Reprieves penalties
3. Commutations b. Partial pardon - does not extinguish all the
4. Remission of fines and forfeitures penalties
5. Amnesty
Note: A judicial pronouncement that a convict who was
granted a pardon subject to the condition that he should
Note: The first 4 require conviction by final judgment while not again violate any penal law is not necessary before he
amnesty does not. can be declared to have violated the condition of her
pardon. (Torres v. Gonzales, G.R. No. L-76872, July 23, 1987)
Q: Are there limitations to the Presidents pardoning
power? Q: Can an offender reject pardon?

A: Yes. It: A: It depends.


1. Cannot be granted in cases of impeachment.
(Sec. 2, Art. XI) 1. Conditional Pardon the offender has the right to
2. Cannot be granted for violations of election laws reject it since he may feel that the condition imposed
without favorable recommendations of the is more onerous than the penalty sought to be
COMELEC. remitted.
3. Can be granted only after convictions by final
judgment (except amnesty). 2. Absolute Pardon the pardonee has no option at all
4. Cannot be granted in cases of civil or legislative and must accept it whether he likes it or not.
contempt.
5. Cannot absolve convict of civil liability. Note: In this sense, an absolute pardon is similar to
commutation, which is also not subject to acceptance by
6. Cannot restore public offices forfeited.
the offender. (Cruz, Philippine Political Law, 2002 ed., p.
232)
Q: What is pardon? What are its legal effects?
A: Pardon is an act of grace which exempts individual Q: Zan Dela Cruz, the assistant city treasurer of
on whom it is bestowed from punishment which the Caloocan, was convicted of estafa through
law inflicts for a crime he has committed. As a
falsification of public documents. However, she was

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granted an absolute pardon, prompting her to claim property. It cannot have the effect of returning
that she is entitled to be reinstated to her former property which has been vested in third parties or
public office. Is Zans contention tenable? money already in the public treasury.

A: No. Pardon does not ipso facto restore a convicted Note: The power of the President to remit fines and
felon neither to his former public office nor to his forfeitures may not be limited by any act of Congress. But a
rights and privileges which were necessarily statue may validly authorize other officers, such as
department heads or bureau chiefs, to remit administrative
relinquished or forfeited by reason of the conviction
fines and forfeitures.
although such pardon undoubtedly restores his
eligibility to that office. (Monsanto v. Factoran, G.R.
Q: What is probation?
No. 78239, Feb. 9, 1989)
A: It is a disposition under which a defendant after
Q: What is reprieve?
conviction and sentence is released subject to
conditions imposed by the court and to the
A: It is the postponement of sentence to a date
supervision of a probation officer.
certain, or stay of execution.
Q: What is a parole?
Note: It may be ordered to enable the government to
secure additional evidence to ascertain the guilt of the
convict or, in the case of the execution of the death A: The suspension of the sentence of a convict grant-
sentence upon a pregnant woman, to prevent the killing of ed by a Parole Board after serving the minimum term
her unborn child. of the indeterminate sentence penalty, without
granting a pardon, prescribing the terms upon which
Q: What is commutation? the sentence shall be suspended.

A: It is the reduction or mitigation of the penalty, Q: What is amnesty?


from death penalty to life imprisonment, remittances
and fines. Commutation is a pardon in form but not in A: It is a grant of general pardon to a class of political
substance, because it does not affect his guilt; it offenders either after conviction or even before the
merely reduces the penalty for reasons of public charges are filed. It is the form of executive clemency
interest rather than for the sole benefit of the which under the Constitution may be granted by the
offender. President only with the concurrence of the
legislature.
Note: Commutation does not have to be in any particular
form. Thus, the fact that a convict was released after 6 Note: Thus, the requisites of amnesty are (a) concurrence
years and placed under house arrest, which is not a penalty, of a majority of all the members of Congress and (b) a
already leads to the conclusion that the penalty has been previous admission of guilt.
shortened.
Q: What are the effects of the grant of amnesty?
Q: Can the SC review the correctness of the action of
the President in granting executive clemency by A: Criminal liability is totally extinguished by amnesty;
commuting the penalty of dismissal, as ruled by the the penalty and all its effects are thus extinguished.
Court, to a dismissed clerk of court? Amnesty reaches back to the past and erases
whatever shade of guilt there was. In the eyes of the
A: Yes. By doing so, the SC is not deciding a political law, a person granted amnesty is considered a new-
question. What it is deciding is whether or not the born child. (Cruz, Philippine Political Law, 2002 ed., p.
President has the power to commute the penalty of 237)
the said clerk of court. As stated in Daza v. Singson,
G.R. No. 87721-30, December 21, 1989, it is within Q: Differentiate amnesty from pardon.
the scope of judicial power to pass upon the validity
of the actions of the other departments of the A:
Government. AMNESTY PARDON
Addressed to Political Addressed to Ordinary
Q: What is remission? offenses offenses
Granted to a Class of Granted to Individuals
A: Remission of fines and forfeitures merely prevents Persons
the collection of fines or the confiscation of forfeited Requires concurrence of Does not require

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majority of all members concurrence of Congress as regards to the grounds for deportation.
of Congress (Sec. 69, Revised Administrative Code).
Public act which the Private act which must b. In the absence of any legislative restriction
court may take judicial be pleaded and proved to authority, the President may still exercise
notice of this power.
Looks backward and puts Looks forward and c. The power to deport aliens is limited by the
to oblivion the offense relieves the pardonee of requirements of due process, which entitles
itself the consequence of the the alien to a full and fair hearing.
offense d. An alien has the right to apply for bail
May be granted before Only granted after provided certain standard for the grant is
or after conviction conviction by final necessarily met. (Government of HongKong
judgment Special Administrative Region v. Olalia,
Need not be accepted Must be accepted G.R.No. 153675, April 19, 2007)

Note: The adjudication of facts upon which the


DIPLOMATIC POWERS
deportation is predicated devolved on the President
whose decision is final and executory. (Tan Tong v.
Q: What are the Presidents powers over foreign Deportation Board, G.R. No. L-7680, April 30, 1955)
affairs?
6. Decide that a diplomatic officer who has become
A: The President is the chief architect of foreign persona non grata be recalled.
relations. By reason of the President's unique position 7. Recognize governments and withdraw
as Head of State, he is the logical choice as the recognition. (Cruz, Philippine Political Law, 2002
nation's spokesman in foreign relations. The Senate, ed., p. 239)
on the other hand, is granted the right to share in the
treaty-making power of the President by concurring Q: Where do the Presidents diplomatic powers
with him with the right to amend. come from?

Q: What is the scope of the foreign relations powers A: The extensive authority of the President in foreign
of the President? relations in a government patterned after that of the
US proceeds from 2 general sources:
A: The Presidents diplomatic powers include power 1. The Constitution
to: 2. The status of sovereignty and independence
1. Negotiate treaties and other international of a state.
agreements. However, such treaty or
international agreement requires the Q: Who ratifies a treaty? What is the scope of the
concurrence of the Senate (Sec. 21, Art. VII) power to concur treaties and international
which may opt to do the following: agreements?
a. Approve with 2/3 majority;
b. Disapprove outright; or A: The power to ratify is vested in the President
c. Approve conditionally, with suggested subject to the concurrence of Senate. The role of the
amendments which if re-negotiated and the Senate, however, is limited only to giving or
Senates suggestions are incorporated, the withholding its consent or concurrence. Hence, it is
treaty will go into effect without need of within the authority of the President to refuse to
further Senate approval. submit a treaty to the Senate. Although the refusal of
a state to ratify a treaty which has been signed in his
2. Appoint ambassadors, other public ministers, behalf is a serious step that should not be taken
and consuls. lightly, such decision is within the competence of the
3. Receive ambassadors and other public ministers President alone, which cannot be encroached upon
accredited to the Philippines. (Cruz, Philippine by the Court via a writ of mandamus. (Pimentel v.
Political Law, 2002 ed., p. 239). Ermita, G.R. No. 164978, Oct. 13, 2005)
4. Contract and guarantee foreign loans on behalf
of RP. (Sec. 20, Art. VII). Note: The power of the Senate to give its concurrence
5. Deport aliens: carries with it the right to introduce amendments to a
a. This power is vested in the President by treaty. If the President does not agree to any amendments
virtue of his office, subject only to or reservations added to a treaty by the Senate, his only
restrictions as may be provided by legislation recourse is to drop the treaty entirely. But if he agrees to

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the changes, he may persuade the other nation to accept
and adopt the modifications. XPN: Item-veto is allowed in case of
Appropriation, Revenue, and Tariff bills (Sec. 27,
POWERS RELATIVE TO APPROPRIATION MEASURES: Par. 2, Art. VI).
BUDGETARY POWER
XPNs to the XPN:
Q: What is budgetary power? 1. Doctrine of inappropriate provisions a
provision that is constitutionally
A: Within 30 days from opening of every regular inappropriate for an appropriation bill
session, the President shall submit to Congress a may be singled out for veto even if it is
budget of expenditures and sources of financing, not an appropriation or revenue
including receipts from existing and proposed item.(Gonzales v. Macaraig, Jr., G.R. No.
revenue measures. (Sec. 22, Art. VII).This power is 87636, November 19, 1990)
properly entrusted to the President as it is the
President who, as chief administrator and enforcer of 2. Executive impoundment refusal of the
the laws, is in the best position to determine the President to spend funds already
needs of the government and propose the allocated by Congress for specific
corresponding appropriations therefor on the basis of purpose. It is the failure to spend or
existing or expected sources of revenue. obligate budget authority of any type.
(Philconsa v. Enriquez, G.R. No. 113105,
DELEGATED POWERS August 19, 1994)

Q: What are the delegated powers of the President? Q: When is there a pocket veto?

A: By delegation from Congress, the President may A: It occurs when:


exercise emergency (Sec. 23(2), Art.VI) and tariff 1. The President fails to act on a bill; and
powers (Sec. 28, Art. VI). 2. The reason he does not return the bill to the
Congress is that Congress is not in session.
Q: What is the emergency power of the President?
Note: Pocket veto is not applicable in the Philippines
A: Under Sec. 23 (2) of Art. VI, in times of war or because inaction by the President for 30 days never
other national emergency, the Congress may, by law, produces a veto even if Congress is in recess. The President
authorize the President, for a limited period and must still act to veto the bill and communicate his veto to
subject to such restrictions as it may prescribe, to Congress without need of returning the vetoed bill with his
veto message.
exercise powers necessary and proper to carry out a
declared national policy. Unless sooner or later
withdrawn by resolution of Congress, such powers Q: When does the Constitution require that the yeas
shall cease upon next adjournment thereof. and nays of the Members be taken every time a
House has to vote?
Q: What is the tariff power of the president?
A:
A: It is the power of the President to fix within 1. Upon the last and third readings of a bill (Section
specified limits, and subject to such limitations and 26, Par. 2, Article VI);
restrictions as it may impose, tariff rates, import and 2. At the request of 1/5 of the members present
export quotas, tonnage and wharfage dues, and other (Section 16, Par. 4, Article VI); and
duties or imposts within the framework of the 3. In repassing a bill over the veto of the President
national development program of the Government. (Section 27, Par. 1, Article VI).
(Sec, 28 (2), Art. VI, 1987 Constitution)
Q: What is a rider?
VETO POWERS
A: A rider is a provision in a bill which does not relate
Q: What is the rule on presidential veto? to a particular appropriation stated in the bill. Since it
is an invalid provision under Sec. 25, Par. 2, Art. VII,
A: 1987 Constitution, the President may veto it as an
GR: If the President disapproves a bill enacted by item.
Congress, he should veto the entire bill. He is not
allowed to veto separate items of a bill. Q. How can Congress override a Presidential veto?

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65 FACULTY OF CIVIL LAW
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A. If, after reconsideration 2/3 of all members of such permanent disability or


House agree to pass the bill, it shall be sent to the inability of the officials
other House by which it shall likewise be mentioned in # 3.
reconsidered and if approved by 2/3 of all members
of that House, it shall become law without need of Q: What are the rules to be applied if the vacancy
presidential approval. occurs during the incumbency of the President?

RESIDUAL POWER A: Section 8 lays down the rules to be applied if a


vacancy occurs during the incumbency of the
Q: What are residual powers? President.

A: Whatever power inherent in the government that In case of : The Vice President shall
is neither legislative nor judicial has to be executive. (a) Death; become the President to
These unstated residual powers are implied from the (b) Permanent serve the unexpired
grant of executive power and which are necessary for Disability; term.
the President to comply with his duties under the (c) Removal from
Constitution. (Marcos v. Manglapus, G.R. No. 88211, office; or
Oct. 27, 1989) (d) Resignation of the
President
In case of : The Senate President, or
RULES ON SUCCESSION (a) Death; in case of his inability,
(b) Permanent the Speaker of the
Q: What are the rules to be applied if there is a Disability; House of
vacancy before the beginning of the term of the (c) Removal from Representatives, shall
President? office; or act as President until the
(d) Resignation of President or Vice
A: Section 7 lays down the rule to be applied if there both the President President shall have ben
is a vacancy before the beginning of the term of the and the Vice- elected and qualified.
President. President

In case of death or The Vice-President elect Q: What are the rules and procedure if a vacancy
permanent disability of shall become President. occurs in the offices of the President and Vice-
the President-elect. President?
In case of failure to The Vice-President shall
elect the President (i.e. act as the President until A: The rules of procedure are as follows:
Presidential elections the President shall have
has not ben held or been chosen and 1. At 10:00 A.M. of the third day after said vacancy
non-completion of the qualified. occurs --- Congress shall convene in accordance
canvass of the with its rules without need of cal.
Presidential elections) 2. Within 7 daysCongress shall enact a law calling
In case no President and The Senate President, or for a special election to elect a President and a
Vice-President shall in case of his inability, the Vice President.
have been chosen and Speaker of the House of 3. Said special election shall be heldNot earlier
qualified, or where both Representatives shall act than forty-five (45) days nor later than sixty (60)
shall have died or as President until a days from the time of such call.
become permanently President or a Vice- 4. The bill calling such special electionShall be
disabled. President shall have been deemed certified under paragraph 2, Section 26,
chosen and qualified. Article VI of this Constitution and shall become
law upon its approval on third reading by
Congress shall by law Congress.
provide for the manner in 5. Appropriations for said special electionShall
which one who is to act as be charged against any current appropriations
President shall be selected and shall be exempt from the requirements of
until a President or a Vice- paragraph 4, Section 25, Article VI of this
President shall have Constitution.
qualified, in case of death,

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EXECUTIVE DEPARTMENT

6. The convening of Congress and the special


electioncannot be suspended or postponed
7. No special election shall be calledIf the
vacancy occurs within eighteen (18) months
before the date of the next presidential
elections. (Suarez, Political Law Reviewer, p. 492-
493, 2011)

Q: What are the instances when there is presidential


inability to discharge powers and duties of his
office?

A:
When the President The powers and duties
transmits to the Senate of his office shall be
President and to the discharged by the
Speaker of the House of Vice-President as
Representatives his Acting President.
written declaration that he
is unable to discharge the
powers and duties of his
office. (First paragraph,
Section 11, Art VII)
When a majority of all the The Vice-President
members of the Cabinet shall immediately
transmit to the Senate assume the powers
President and to the and duties of the
Speaker of the House of office as Acting
Representatives their President.
written declaration that
the President is unable to
discharge the powers and
duties of his office (Second
paragraph, Section 11,
Article VII).

Q: When No. 2 happens, can the President re-


assume the powers and duties of his office?

A: Yes, if he transmits to the Senate President and to


the Speaker of the House of Representatives his
written declaration that no inability exists. (Suarez,
Political Law Reviewer, p. 494, 2011)

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JUDICIAL DEPARTMENT A:
1. Actual case an existing case or controversy
JUDICIAL POWER which is both ripe for resolution and susceptible
of judicial determination, and that which is not
Q: What is judicial power? conjectural or anticipatory, or that which seeks
to resolve hypothetical or feigned constitutional
A: It includes the duty of the courts of justice to settle problems.
actual controversies involving rights, which are legally
demandable and enforceable, and to determine Note: But even with the presence of an actual case or
whether or not there has been a grave abuse of controversy, the Court may refuse judicial review unless a
party who possesses locus standi or the standing to
discretion amounting to lack or excess of jurisdiction
challenge it brings the constitutional question or the
on the part of any branch or instrumentality of the assailed illegal movement or act before it.
Government. (Sec. 1[2], Art. VIII)
2. Proper party one who has sustained or is in
Q: In what body is Judicial Power vested? immediate danger of sustaining an injury as a
result of the act complained of. To have standing,
A: It is vested in one Supreme Court (SC) and such one must show that 1) he has suffered some
lower courts as may be established by law. (Sec. 1, actual or threatened injury as a result of the
Art. VIII) allegedly illegal conduct of the government; 2)
the injury is fairly traceable to the challenged
Q: Can judicial power be shared? action; 3) the injury is likely to be redressed by a
favorable action. (Francisco, Jr. & Hizon v. Toll
A: No. The US SC declared that judicial power cannot Regulatory Board, et. al., G.R. Nos. 166910,
be shared, as the powers of the legislature and October 19, 2010)
executive cannot also thereby be shared. (US v.
Nixon, 418 US 683 41 Led 2d 1039, 94 SC t 3090, GR: If there is no actual or potential injury,
1974) complainant has no legal personality to raise
constitutional questions.
Q: What is the power of judicial inquiry?
XPN: If the question is of transcendental
A: It is the power of the court to inquire into the importance..
exercise of discretionary powers to determine
whether there has been a grave abuse of discretion Note: The Principle of Transcendental Importance is
amounting to lack or excess of jurisdiction. determined by:
1. The character of the funds or other assets
JUDICIAL REVIEW involved in the case;
2. The presence of a clear case of disregard of a
constitutional or statutory prohibition by the
Q: What is the power of judicial review?
public respondent agency or instrumentality of
the government;
A: It is the power of the SC to declare a law, treaty, 3. The lack of any other party with a more direct and
ordinance and other governmental act specific interest in raising the questions being
unconstitutional. raised. (Francisco, Jr. v. House of Representatives,
G.R. No. 160261, Nov. 10, 2003)
Note: When the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority 3. Earliest opportunity constitutional question
over other departments; it does not in reality nullify or must be raised at the earliest possible
invalidate an act of the legislature, but only asserts the opportunity.
solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority GR: It must be raised in pleadings.
under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures
XPN:
and guarantees to them. This is in truth all that is involved
in what is termed as judicial supremacy, which properly is 1. Criminal case it may be brought at any
the power of judicial review under the Constitution. stage of the proceedings according to
(Angara v. The Electoral Commission, et. al., G.R. No. L- the discretion of the judge (trial or
45081, July 15, 1936) appeal) because no one shall be brought
within the terms of the law who are not
Q: What are the requisites of judicial review? clearly within them and the act shall not

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be punished when the law does not Q: What are the functions of judicial review?
clearly punish them.
2. Civil case it may be brought anytime if A: They are:
the resolution of the constitutional issue 1. Checking invalidating a law or executive act
is inevitable in resolving the main issue. that is found to be contrary to the Constitution
3. When the jurisdiction of the lower court 2. Legitimizing upholding the validity of the law
is in question except when there is that results from a mere dismissal of a case
estoppel. challenging the validity of the law
3. Symbolic to educate the bench and bar as to
Note: The earliest opportunity to raise a constitutional the controlling principles and concepts on
issue is to raise it in the pleadings before a competent court matters of grave public importance for the
that can resolve the same, such that, if not raised in the
guidance of and restraint upon the future (Igot v.
pleadings, it cannot be considered in trial and, if not
considered in trial, it cannot be considered on appeal. COMELEC, G.R. No. L-352245, Jan. 22, 1980)

The Ombudsman has no jurisdiction to entertain questions Q: What is the extent of power of judicial review in
regarding constitutionality of laws. Thus, when the issue of impeachment proceedings?
constitutionality of a law was raised before the Court of
Appeals (CA), which is the competent court, the A: The power of judicial review includes the power of
constitutional question was raised at the earliest opportune review over justiciable issues in impeachment
time. (Estarija v. Ranada, G.R. No. 159314, June 26, 2006) proceedings (Francisco, Jr. v. House of
Representatives, G.R. No. 160261, Nov. 10, 2003).
4. Necessity of deciding constitutional questions
as a joint act of the legislative and executive Q: What is the Doctrine of Relative
authorities, a law is supposed to have been Constitutionality?
carefully studied and determined to be
constitutional before it was finally enacted. As A: The constitutionality of certain rules may depend
long as there are other bases which courts can upon the times and get affected by the changing of
use for decision, constitutionality of the law will the seasons. A classification that might have been
not be touched. perfectly all right at the time of its inception may be
considered dubious at a later time.
Q: What are the requisites before a law can be
declared partially unconstitutional? OPERATIVE FACT DOCTRINE
A: Q: What is meant by the operative fact doctrine?
1. The legislature must be willing to retain valid
portion (separability clause) A: It is a rule of equity. Under this doctrine, the law is
2. The valid portion can stand independently as law recognized as unconstitutional but the effects of the
unconstitutional law, prior to its declaration of nullity,
Q: What is the Principle of Stare Decisis?
may be left undisturbed as a matter of equity and fair
play. (League of Cities of the Philippines v. COMELEC,
A: A principle underlying the decision in one case is
G.R. No. 176951, Nov. 18, 2008)
deemed of imperative authority, controlling the
decisions of like cases in the same court and in lower
Q: Will the invocation of this doctrine an admission
courts within the same jurisdiction, unless and until
that the law is unconstitutional?
the decision in question is reversed or overruled by a
court of competent authority. (De Castro v. JBC, G.R.
A: Yes. (League of Cities of the Philippines v.
No. 191002, Apr. 20, 2010)
COMELEC, G.R. No. 176951, Nov. 18, 2008)
Q: Is the SC obliged to follow precedents?
Q: Is the Operative Fact Doctrine applicable to
executive acts?
A: No. The Court, as the highest court of the land,
may be guided but is not controlled by precedent.
A: Yes. The Operative Fact Doctrine also applies to
Thus, the Court, especially with a new membership, is
executive acts subsequently declared as invalid.
not obliged to follow blindly a particular decision that
A decision made by the president or the
it determines, after re-examination, to call for a
administrative agencies has to be complied with
rectification. (De Castro v. JBC, G.R. No. 191002, April
because it has the force and effect of law. (Hacienda
20, 2010)

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69 FACULTY OF CIVIL LAW
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Luisita Inc., v. Presidential Agrarian Reform Council, In the absence of actual justiciable controversies or
et. al., G.R. No. 171101, Nov. 22, 2011) disputes, the Court generally opts to refrain from
deciding moot issues. Where there is no more live
MOOT QUESTIONS subject of controversy, the Court ceases to have a
reason to render any ruling or make any
Q: What are moot questions? pronouncement. (Suplico v. NEDA, G.R. Nos. 178830,
July 14, 2008)
A: Questions whose answers cannot have any
practical legal effect or, in the nature of things, POLITICAL QUESTIONS
cannot be enforced. (Baldo, Jr. v. COMELEC, G.R. No.
176135, June 16, 2009) Q: What is meant by the political question doctrine?

Q: When is a case moot and academic? A: The doctrine means that the power of judicial
review cannot be exercised when the issue is a
A: It is moot and academic when it ceases to present political question. It constitutes another limitation on
a justiciable controversy by virtue of supervening such power of the judiciary.
events so that a declaration thereon would be of no
practical use or value. Q: What are political questions?

Q: Should courts decline jurisdiction over moot and A: Those questions which, under the Constitution, are
academic cases? to be decided by the people in their sovereign
capacity, or in regard to which full discretionary
A: authority has been delegated to the legislative or
GR: The courts should decline jurisdiction over such executive branch of the government. (Taada v.
cases or dismiss it on ground of mootness. Cuenco, G.R. No. L-10520, February 28, 1957)

XPNs: Q: Distinguish justiciable questions from political


1. There is a grave violation of the Constitution questions.
2. There is an exceptional character of the
situation and the paramount public interest A:
is involved JUSTICIABLE POLITICAL QUESTIONS
3. When the constitutional issue raised QUESTIONS
requires formulation of controlling principles Imply a given right Questions which involve
to guide the bench, the bar, and the public legally demandable and the policy or the wisdom
4. The case is capable of repetition yet evading enforceable, an act or of the law or act, or the
review. (David v. Arroyo, G.R. No. 171396, omission violative of morality or efficacy of the
May 3, 2006) such right, and a remedy same. Generally it cannot
granted and sanctioned be inquired by the courts.
Q: Atty. Al Conrad filed a petition to set aside the by law for said breach of Further, these are
award of the ZTE-DOTC Broadband Deal. The OSG right questions which under
opposed the petition on the ground that the Legal the Constitution:
Service of the DOTC has informed it of the Philippine a. Are decided by the
Governments decision not to continue with the ZTE- people in their
NBN Project. That said, there is no more justiciable sovereign capacity;
controversy for the court to resolve. Hence, the OSG and
claimed that the petition should be dismissed. Atty. b. Where full
Al Conrad countered by saying that despite the discretionary authority
mootness, the Court must nevertheless take has been delegated by
cognizance of the case and rule on the merits due to the Constitution either
the Courts symbolic function of educating the bench to the executive or
and the bar by formulating guiding and controlling legislative
principles, precepts, doctrines, and rules. Decide. department.

A: The OSG is correct. The petition should be


dismissed for being moot. Judicial power presupposes Q: How does the definition of judicial power under
actual controversies, the very antithesis of mootness. the present Constitution affect the political question
doctrine?

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A: The 1987 Constitution expands the concept of Q: What is the constitutional guarantee of fiscal
judicial review. Under the expanded definition, the autonomy?
Court cannot agree that the issue involved is a
political question beyond the jurisdiction of the court A: In Bengzon v. Drilon, G.R. No. 103524, April 15,
to review. When the grant of power is qualified, 1992, the SC explained that fiscal autonomy
conditional or subject to limitations, the issue of contemplates a guarantee of full flexibility to allocate
whether the prescribed qualifications or conditions and utilize resources with the wisdom and dispatch
have been met or the limitations respected is that the needs require. It recognizes the power and
justiciablethe problem being one of legality or authority to deny, assess and collect fees, fix rates of
validity, not its wisdom. Moreover, the jurisdiction to compensation not exceeding the highest rates
delimit constitutional boundaries has been given to authorized by law for compensation and pay plans of
the SC. When political questions are involved, the the government and allocate and disburse such sums
Constitution limits the delimitation as to whether or as may be provided by law or prescribed by it in the
not there has been a grave abuse of discretion course of the discharge of its functions.
amounting to lack or excess of jurisdiction on the part
of the official whose action is being questioned. JUDICIAL RESTRAINT

SAFEGUARDS OF JUDICIAL INDEPENDENCE Q: What does the Principle of Judicial Restraint


mean?
Q: What are the constitutional safeguards that
guarantee independence of the judiciary? A: It is a theory of judicial interpretation that
encourages judges to limit the exercise of their own
A: power.
1. The SC is a constitutional body and may not be
abolished by law In terms of legislative acts, the principle of judicial
2. Members are only removable by impeachment restraint means that every intendment of the law
(Sec. 2, Art. XI, 1987 Constitution) must be adjudged by the courts in favor of its
3. The SC may not be deprived of its minimum and constitutionality, invalidity being a measure of last
appellate jurisdiction; appellate jurisdiction may resort. In construing therefore the provisions of a
not be increased without its advice or statute, courts must first ascertain whether an
concurrence (Sec. 2, Art VIII, 1987 Constitution) interpretation is fairly possible to sidestep the
4. The SC has administrative supervision over all question of constitutionality. (Estrada v.
inferior courts and personnel (Sec. 6, Art. VIII, Sandiganbayan, G.R. No. 148560, Nov. 19, 2001)
1987 Constitution)
5. The SC has exclusive power to discipline The doctrine of separation of powers imposes upon
judges/justices of inferior courts (Sec, 22, Art. the courts proper restraint born of the nature of their
VIII, 1987 Constitution) functions and of their respect for the other
6. The members of the judiciary enjoy security of departments in striking down acts of the legislature
tenure (Sec. 2 [2], Art. VIII, 1987 Constitution) as unconstitutional. (Francisco, Jr. v. The House of
7. The members of the judiciary may not be Representatives, G.R. No. 160261, Bellosillo J.,
designated to any agency performing quasi- Separate Opinion, Nov. 10, 2003)
judicial or administrative functions (Sec 12,
Article VIII, 1987 Constitution) APPOINTMENTS TO THE JUDICIARY
8. The salaries of judges may not be reduced; the
judiciary enjoys fiscal autonomy (Sec. 3, Art. VIII, Q: How are members of the judiciary appointed?
1987 Constitution)
9. The SC alone may initiate the promulgation of A: The members of the judiciary are appointed by the
the Rules of Court (Sec. 5 (5), Art. 8, 1987 President of the Philippines from among a list of at
Constitution) least three nominees prepared by the Judicial and Bar
10. The SC alone may order temporary detail of Council (JBC) for every vacancy.
judges (Sec. 5 (3), Art. 8, 1987 Constitution)
11. The SC can appoint all officials and employees of Note: The appointment shall need no confirmation from
the Judiciary. (Sec. 5 (6), Art. 8, 1987 the Commission on Appointments. (Sec. 9, Art. VIII)
Constitution) (Nachura, Reviewer in Political Law,
pp. 310-311) Q: What are the rules regarding vacancies in the SC?

A: They are the following:

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1. Vacancies in the SC should be filled within 90 Judicial and Bar Council, G.R.No. 202242, July 17,
days from the occurrence of the vacancy. 2012)
2. Vacancies in lower courts should be filled within
90 days from submission to the President of the Q: What are the functions of the JBC?
JBC list.
3. The filling of the vacancy in the Supreme Court A: The principal function of the JBC is to recommend
within the 90-day period is an exception to the appointees to the judiciary. It may, however, exercise
prohibition on midnight appointments of the such functions as the SC may assign to it. (Sec. 8, Art.
president. This means that even if the period falls VIII)
on the period where the president is prohibited
from making appointments (midnight Note: The duty of the JBC to submit a list of nominees
appointments); the president is allowed to make before the start of the Presidents mandatory 90-day period
appointments to fill vacancies in the Supreme to appoint is ministerial, but its selection of the candidates
Court. (De Castro v. JBC, G.R. No. 191002, Apr. whose names will be in the list to be submitted to the
20, 2010) President lies within the discretion of the JBC. (De Castro v.
JBC, G.R. No. 191002, Mar. 17, 2010)
Q: What is the composition of the JBC?
Q: How long can members of the SC and judges hold
office?
A: The JBC is composed of:
1. Chief Justice, as ex-officio chairman
A: Members of the SC and judges of lower courts can
2. Secretary of Justice, as an ex-officio member
hold office during good behavior until:
3. Representative of Congress, as an ex- officio
1. The age of 70 years old; or
member
2. They become incapacitated to discharge their
4. Representative of the Integrated Bar
duties.
5. A professor of law
6. A retired member of the SC
Q: Is the ban on midnight appointment applicable to
7. Private sector representative
the Supreme Court?
Q: How many should be the representative of
A: It does not. The prohibition under Sec. 15, Art. VII
Congress in the JBC?
does not apply to appointments to fill a vacancy in
the SC. (De Castro v. JBC, G.R. No. 191002, Mar. 17,
A: Only one. The word Congress used in Article VIII,
2010)
Section 8(1) of the Constitution is used in its generic
sense. No particular allusion whatsoever is made on
Q: What are the general qualifications for
whether the Senate or the House of Representatives
appointments to the judiciary?
is being referred to, but that, in either case, only a
singular representative may be allowed to sit in the
A: Of proven competence, integrity, probity and
JBC. The seven-member composition of the JBC
independence (Sec. 7 [3], Art. VIII)
serves a practical purpose, that is, to provide a
solution should there be a stalemate in voting.
Q: What are the qualifications for appointments to
the SC?
It is evident that the definition of Congress as a
bicameral body refers to its primary function in A:
government to legislate. In the passage of laws, the 1. Natural born citizen of the Philippines;
Constitution is explicit in the distinction of the role of 2. At least 40 years of age;
each house in the process. The same holds true in 3. A judge of a lower court or engaged in the
Congress non-legislative powers. An inter-play practice of law in the Philippines for 15 years or
between the two houses is necessary in the more (Sec. 7 [1], Art. VIII)
realization of these powers causing a vivid dichotomy
that the Court cannot simply discount. This, however, Q: What are the qualifications for appointments to
cannot be said in the case of JBC representation lower collegiate courts?
because no liaison between the two houses exists in
the workings of the JBC. Hence, the term Congress A:
must be taken to mean the entire legislative 1. Natural born citizen of the Philippines
department. The Constitution mandates that the JBC 2. Member of the Philippine Bar
be composed of seven (7) members only. (Chavez v.

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JUDICIAL DEPARTMENT

Q: What are the qualifications for appointments to 5. Legal assistance to the underprivileged
lower courts?
Q: What are the limitations on its rule making
A: power?
1. Citizen of the Philippines
2. Member of the Philippine Bar A:
1. It should provide a simplified and inexpensive
Note: For both lower collegiate courts and lower courts, procedure for the speedy disposition of cases.
Congress may prescribe other qualifications. (Sec. 7 [1] and 2. It should be uniform for all courts of the same
[2], Art. VIII) grade.
3. It should not diminish, increase, or modify
SUPREME COURT substantive rights.

EN BANC DECISIONS ADMINISTRATIVE SUPERVISION OVER LOWER


COURTS
Q: What are the cases that should be heard by the
SC en banc? Q: Who holds the power of disciplinary action over
judges of lower courts?
A:
1. All cases involving the constitutionality of a A:
treaty, international or executive agreement, or 1. Only the SC en banc has jurisdiction to discipline
law; or dismiss judges of lower courts.
2. All cases which under the Rules of Court may be 2. Disciplinary action/dismissal majority vote of
required to be heard en banc; the SC Justices who took part in the deliberations
3. All cases involving the constitutionality, and voted therein (Sec. 11, Art. VIII)
application or operation of presidential decrees,
proclamations, orders, instructions, ordinances, Note: The Constitution provides that the SC is given
and other regulations; exclusive administrative supervision over all courts and
4. Cases heard by a division when the required judicial personnel.
majority in the division is not obtained;
5. Cases where the SC modifies or reverses a Q: What are the administrative cases which the SC
doctrine or principle of law previously laid either may hear en banc?
en banc or in division;
6. Administrative cases involving the discipline or A: Under Bar Matter No. 209, it includes:
dismissal of judges of lower courts; 1. Administrative judges;
7. Election contests for president or vice-president. 2. Disbarment of lawyers;
3. Suspension of more than 1 year; or
Note: Other cases or matters may be heard in division, and 4. Fine exceeding Php10, 000. (People v. Gacott,
decided or resolved with the concurrence of a majority of G.R. No. 110930, July 13, 1995)
the members who actually took part in the deliberations on
the issues and voted thereon, but in no case without the
Q: Does the CSC have jurisdiction over an employee
concurrence of at least three such members.
of the judiciary for acts committed while said
No law shall be passed increasing the appellate jurisdiction employee was still in the executive branch?
of the SC as provided in the Constitution without its advice
and concurrence. (Sec. 30, Art. VI) A: No. Administrative jurisdiction over a court
employee belongs to the SC, regardless of whether
PROCEDURAL RULE-MAKING POWER the offense was committed before or after
employment in the Judiciary. (Ampong v. CSC, G.R.
Q: What is the scope of the rule making power of No. 167916, Aug. 26, 2008)
the SC?
ORIGINAL AND APELLATE JURISDICTION OF SC
A: Promulgate rules concerning:
1. The protection and enforcement of Q: Distinguish original jurisdiction from appellate
constitutional rights jurisdiction.
2. Pleadings, practice and procedure in all courts A:
3. Admission to the practice of law 1. Original Jurisdiction - a court has original
4. The Integrated Bar jurisdiction when it is the proper court to first

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hear the case. This is where the court makes Courts in cases a lesser penalty,
determinations of law and fact. involving- the judgment
E.g.: may be
a. Over cases affecting ambassadors, other i. If no question appealed to the
public ministers and consuls; of fact is Supreme Court
b. Over petitions for certiorari, prohibition, involved and by notice of
mandamus, quo warranto, and habeas the case appeal filed with
corpus; and involves: the Court of
c. Review of the martial law or suspension a) Constitution Appeals. (A.M.
of the privilege of writ of habeas corpus. ality or No. 00-5-03-SC,
validity of September 28,
2. Appellate Jurisdiction - a court has appellate treaty, 2004).
jurisdiction when it is reviewing a case that has internationa
already been heard by a lower court and it only l or 2. Automatic
looks at the matters of law. executive review for cases
E.g.: agreement, of death penalty
a. Over final judgments and orders of law, rendered by the
lower courts in all cases in which the presidential Court of
constitutionality or validity of any treaty, decree, Appeals (A.M.
international or executive agreement, proclamatio No. 00-5-03-SC,
law, presidential decree, proclamation, n, order, September 84,
order, instruction, ordinance, or instruction, 2004).
regulation is in question; ordinance
b. All cases involving the legality of any tax or Note: Where
impost, assessment or toil, or any regulation the judgment
penalty imposed in relation thereto; b) Legality of also imposes a
c. All cases in which the jurisdiction of any tax, impost, lesser penalty
lower court is in issue; assessment for offenses
d. All criminal cases in which the penalty s, or toll, or committed on
imposed is reclusion perpetua or higher; penalty in the same
and relation occasion or
e. All cases in which only a question of law thereto which arose out
is involved (Second 5 (2), Art VII) c) Cases in of the same
which occurrence that
Q: What cases fall under the jurisdiction of the jurisdiction gave rise to the
Supreme Court? of lower more severe
court is in offense for
CIVIL CASES CRIMINAL CASES issue which the
Exclusive Original ii. All cases in penalty of death
Petitions for issuance of writs Petitions for which only is imposed, and
of certiorari, prohibition and issuance of writs of errors or the accused
mandamus against the certiorari, questions of appeals, the
following: prohibition and law are automatic
1. Court of Appeals mandamus against involved. review from the
2. Court of Tax Appeals the following: 1. Special civil action of Court of Appeals
3. Commission on 1. Court of certiorari filed to the Supreme
Elections En Banc Appeals within 30 days Court shall
4. Commission on Audit 2. Sandiganba against the include such
5. Sandiganbayan yan COMELEC / COA lesser offense
Appellate (A.M. No. 00-5-
1. Petitions for review on 1. In cases where 03-SC,
certiorari against: the Court of September 28,
a. CA; Appeals 2004).
b. CTA; imposes reclusio
c. Sandiganbayan n perpetua, life 3. Petition for
d. Regional Trial imprisonment or review on

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JUDICIAL DEPARTMENT

certiorari (Rule review


45) from the whenever the
Sandiganbayan if Sandiganbayan,
penalty is less in the exercise
than death, life of its appellate
imprisonment jurisdiction,
or reclusion finds that the
perpetua in penalty of
criminal cases, death, reclusion
and, in civil perpetua or life
cases; (A.M. No. imprisonment
00-5-03-SC, should be
October 12, imposed (A.M.
2004). No. 00-5-03-SC,
4. Notice of appeal October 12,
from the 2004).
Sandiganbayan 7. Appeals from
if it imposes life RTC in which
imprisonment only errors or
or reclusion questions of law
perpetua or are involved.
where a lesser Concurrent
penalty is With CA
imposed 1. Petitions for issuance of Petitions for
involving writs of certiorari, issuance of writs of
offenses prohibition and certiorari,
committed on mandamus against prohibition and
the same the following: mandamus against
occasion or a. NLRC under the the RTC and lower
which arose out Labor Code. courts.
of the same
occurrence that Note: The petitions must
gave rise to the first be filed with the CA,
more serious otherwise, they shall be
offense for dismissed (St. Martin
which the Funeral Home v. CA, G.R.
penalty of No. 130866, Sept. 16,
death, reclusion 1998).
perpetua of life
imprisonment is b. Civil Service
imposed (A.M. Commission
No. 00-5-03-SC, c. Quasi-judicial
October 12, agencies (file with the CA
2004). first)
5. Automatic d. RTC and lower
review of death courts;
penalty imposed
by the 2. Petitions for issuance of
Sandiganbayan writ of kalikasan
in the exercise (Sec. 3, Rule 7, A.M.
of its original No. 09-6-8-SC).
jurisdiction With CA and RTC
(A.M. No. 00-5- 1. Petitions for Petitions for
03-SC, October habeas corpus issuance of writs of
12, 2004). and quo certiorari,
6. Automatic warranto; and prohibition and

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2. Petitions for mandamus against


issuance of the lower courts or
writs of bodies.
certiorari,
prohibition
and
mandamus
against the
lower courts
or other
bodies
With CA, SB and RTC
1. Petitions for the issuance
of writ of amparo
Petitions for the
2. Petition for writ of
issuance of writ of
habeas data, where
amparo and writ of
the action involves
habeas data
public data or
government office
With
With RTC
Sandiganbayan
Actions affecting Petitions for
ambassadors and other public mandamus,
ministers and consuls prohibition,
certiorari,
injunctions and
ancillary writs in aid
of its appellate
jurisdiction including
quo warranto arising
or that may arise in
in cases filed under
EO Nos. 1, 2, 14 and
14-A

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CONSTITUTIONAL COMMISSIONS

CONSTITUTIONAL COMMISSIONS Note: The Supreme Court held that the no report, no
release policy may not be validly enforced against offices
Q: What are the Constitutional Commissions? vested with fiscal autonomy, without violating Sec. 5, Art.
IX-A of the Constitution. The automatic release of approved
annual appropriations to a Constitutional Commission
A:
vested with fiscal autonomy should thus be construed to
1. Civil Service Commission (CSC) mean that no condition to fund releases may be imposed.
2. Commission on Elections (COMELEC) (CSC v. DBM, G.R. No. 158791, July 22, 2005)
3. Commission on Audit (CoA)
Q: What are the requisites for the effective
Note: The CSC, COMELEC, and CoA are equally pre-eminent operation of the rotational scheme of terms of
in their respective spheres. Neither one may claim
constitutional bodies?
dominance over the others. In case of conflicting rulings, it
is the Judiciary, which interprets the meaning of the law
and ascertains which view shall prevail (CSC v. Pobre, G.R. A:
No. 160508, Sept. 15, 2004) 1. The original members of the Commission shall
begin their terms on a common date
Q: Discuss the creation of the Constitutional 2. Any vacancy occurring before the expiration of
Commission. the term shall be filled only for the balance of
such term. (Republic v. Imperial, G.R. No. L-8684,
A: The creation of the Constitutional Commissions is Mar. 31, 1995)
established in the Constitution because of the
extraordinary importance of their functions and the POWERS AND FUNCTIONS OF EVERY COMMISSION
need to insulate them from the undesired political
interference or pressure. Their independence cannot CIVIL SERVICE COMMISSION
be assured if they were to be created merely by
statute. Q: What are the functions of the CSC?

CONSTITUTIONAL SAFEGUARDS TO ENSURE A: As the central personnel agency of the


INDEPENDENCE OF COMMISSIONS government, it:
1. Establishes a career service
Q: What are the guarantees of independence 2. Adopts measures to promote morale, efficiency,
provided for by the Constitution to the 3 integrity, responsiveness, progressiveness and
Commissions? courtesy in the Civil Service
3. Strengthens the merits and rewards system
A: 4. Integrates all human resources and development
1. They are constitutionally-created; may not be programs for all levels and ranks
abolished by statute 5. Institutionalizes a management climate
2. Each is conferred certain powers and functions conducive to public accountability (Sec. 3, Art. IX-
which cannot be reduced by statute B)
3. Each is expressly described as independent
4. Chairmen and members are given fairly long COMMISSION ON ELECTIONS
term of office for 7 years
5. Chairmen and members cannot be removed Q: What are the constitutional powers and functions
except by impeachment of the COMELEC?
6. Chairmen and members may not be reappointed
or appointed in an acting capacity A:
7. Salaries of chairmen and members are relatively 1. Enforce and administer all laws and regulations
high and may not be decreased during relative to the conduct of an election, plebiscite,
continuance in office initiative, referendum, and recall.
8. Commissions enjoy fiscal autonomy
9. Each commission may promulgate its own 2. Exercise:
procedural rules a. Exclusive original jurisdiction over all
10. Chairmen and members are subject to certain contests relating to the election, returns and
disqualifications calculated to strengthen their qualifications of all elective:
integrity ii. Regional
11. Commissions may appoint their own officials and iii. Provincial
employees in accordance with Civil Service Law iv. City officials

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b. Exclusive appellate jurisdiction over all b. COMELEC can deputize prosecutors


contests involving: for this purpose. The actions of the
i. Elective municipal officials decided prosecutors are the actions of the
by trial courts of general jurisdiction COMELEC.
ii. Elective barangay officials decided
by courts of limited jurisdiction. Note: Preliminary investigations conducted by the
c. Contempt powers COMELEC are valid.
i. COMELEC can exercise this power
only in relation to its adjudicatory 7. Recommend to the Congress effective
or quasi-judicial functions. It cannot measures to minimize election spending,
exercise this in connection with its including limitation of places where
purely executive or ministerial propaganda materials shall be posted, and to
functions prevent and penalize all forms of election
ii. If it is pre-proclamation frauds, offenses, malpractices, and nuisance
controversy, the COMELEC candidacies.
exercises quasi-judicial/
administrative powers. 8. Recommend to the President the removal of
iii. Its jurisdiction over contests (after any officer or employee it has deputized, or
proclamation), is in exercise of its the imposition of any other disciplinary
judicial functions. action, for violation or disregard of, or
disobedience to its directive, order, or
Note: The COMELEC may issue writs of certiorari, decision.
prohibition, and mandamus in exercise of its
appellate functions. 9. Submit to the President and the Congress a
comprehensive report on the conduct of
3. Decide, except those involving the right to each election, plebiscite, initiative,
vote, all questions affecting elections, referendum, or recall.
including determination of the number and
location of polling places, appointment of Q: All election cases, including pre-proclamation
election officials and inspectors, and controversies, must be decided by the COMELEC in
registration of voters. division. Should a party be dissatisfied with the
decision, what remedy is available?
Note: Questions involving the right to vote fall
within the jurisdiction of ordinary courts. A: The dissatisfied party may file a motion for
reconsideration before the COMELEC en banc. If the
4. Deputize, with the concurrence of the en bancs decision is still not favorable, the same, in
President, law enforcement agencies and accordance with Article IX-A, Sec. 7, may be brought
instrumentalities of the government, to the Supreme Court on certiorari. (Reyes v. RTC of
including the AFP, for the exclusive purpose Oriental Mindoro, G.R. No. 108886, May 5, 1995)
of ensuring free, orderly, honest, peaceful
and credible elections. Note: The fact that decisions, final orders or rulings of the
COMELEC in contests involving elective municipal and
5. Registration of political parties, barangay offices are final, executory and not appealable,
organizations, or coalitions and accreditation (Art. IX-C, Sec. 2[2]) does not preclude recourse to the
of citizens arms of the COMELEC. Supreme Court by way of a special civil action of certiorari.
(Galido v. COMELEC, G.R. No. 95346, Jan. 18, 1991)
6. File, upon a verified complaint, or on its own
initiative, petitions in court for inclusion or Q: Can the COMELEC exercise its power of contempt
exclusion of voters; investigate and, where in connection with its functions as the National
appropriate, prosecute cases of violations of Board of Canvassers during the elections?
election laws, including acts or omissions
constituting election frauds, offenses and A: Yes. The effectiveness of the quasi-judicial power
malpractices. vested by law on a government institution hinges on
a. COMELEC has exclusive jurisdiction its authority to compel attendance of the parties
to investigate and prosecute cases and/or their witnesses at the hearings or
for violations of election laws. proceedings. In the same vein, to withhold from the
COMELEC the power to punish individuals who refuse

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CONSTITUTIONAL COMMISSIONS

to appear during a fact-finding investigation, despite 4. Be financially interested, directly or indirectly, in


a previous notice and order to attend would render any contract with, or in any franchise or privilege
nugatory the COMELECs investigative power, which granted by the Government, any of its
is an essential incident to its constitutional mandate subdivisions, agencies or instrumentalities,
to secure the conduct of honest and credible including GOCCs or their subsidiaries
elections. (Bedol v. COMELEC, G.R. No. 179830, Dec.
3, 2009) JURISDICTION OF EACH CONSTITUTIONAL
COMMISSION
COMMISSION ON AUDIT
CIVIL SERVICE COMMISSION
Q: What are the powers and duties of COA?
Q: What is the scope of the Civil Service?
A:
1. Examine, audit and settle all accounts pertaining A: The civil service embraces all branches,
to revenue and receipts of, and expenditures or subdivisions, instrumentalities, and agencies of the
uses of funds and property owned or held in Government, including government-owned or
trust or pertaining to government controlled corporations with original charters. (Article
2. Keep general accounts of government and IV-B, Section 2[1])
preserve vouchers and supporting papers
3. Authority to define the scope of its audit and COMMISSION ON ELECTION
examination, establish techniques and methods
required therefore Q: What cases fall under the jurisdiction of COMELEC
4. Promulgate accounting and auditing rules and by division?
regulations, including those for prevention and
disallowance. (Sec. 2, Art. IX-D) A: Election cases should be heard and decided by a
division. If a division dismisses a case for failure of
Q: The PNB was then one of the leading counsel to appear, the MR may be heard by the
government-owned banks and it was under the division.
audit jurisdiction of the COA. A few years ago, it was
privatized. What is the effect, if any, of the Note: According to Balajonda v. COMELEC, G.R. No.
privatization of PNB on the audit jurisdiction of the 166032, Feb. 28, 2005, the COMELEC can order immediate
COA? execution of its own judgments.

A: Since the PNB is no longer owned by the Q: What cases fall under the jurisdiction of
Government, the COA no longer has jurisdiction to COMELEC en banc?
audit it as an institution. Under Sec. 2(2), Art. IX-D of
the Constitution, it is a GOCC and their subsidiaries A: Motion for Reconsideration of decisions should be
which are subject to audit by the COA. However, in decided by COMELEC en banc. It may also directly
accordance with Sec. 2(1), Art. IX-D, the COA can assume jurisdiction over a petition to correct
audit the PNB with respect to its accounts because manifest errors in the tallying of results by Board of
the Government still has equity in it. (PAL vs. COA, Canvassers.
G.R. No. 91890, June 9, 1995)
Note: Any decision, order or ruling of the COMELEC in the
PROHIBITED OFFICES & INTERESTS exercise of its quasi-judicial functions may be brought to
the SC on certiorari under Rules 64 and 65 of the Revised
Rules of Court within 30 days from receipt of a copy
Q: What are the prohibitions and inhibitions thereof.
attached to the officers of Constitutional
Commissions? These decisions or rulings refer to the decision or final
order of the COMELEC en banc and not of any division
A: No member of a Constitutional Commission shall, thereof.
during his tenure:
1. Hold any other office or employment Q: What are the acts that fall under the COMELECs
2. Engage in the practice of any profession power to supervise or regulate?
3. Engage in the active management and control of
any business which in any way may be affected A:
by the function of his office 1. The enjoyment or utilization of all franchises or
permits for the operation of transportation and

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other public utilities, media of communication or REVIEW OF FINAL ORDERS, RESOLUTION &
information. DECISIONS
2. Grants, special privileges or concessions granted
by the government or any subdivision, agency or RENDERED IN THE EXERCISE OF QUASI-JUDICIAL
instrumentality thereof, including any GOCC or FUNCTION
its subsidiary. (Sec. 4, Art. IX-C)
Q: How does the SC review decisions of the
Q: When can COMELEC exercise its constitutional commissions?
powers and functions?
A:
A: 1) COA: Judgments or final orders of the
1. During election period 90 days before the day Commission on Audit may be brought by an
of the election and ends 30 days thereafter. In aggrieved party to the Supreme Court on
special cases, COMELEC can fix a period. certiorari under Rule 65. Only when COA acts
2. Applies not only to elections but also to without or excess in jurisdiction, or with grave
plebiscites and referenda. abuse of discretion amounting to lack or excess
of jurisdiction, may the SC entertain a petition for
Q: What is the difference between the jurisdiction of certiorari under Rule 65.
the COMELEC before the proclamation and its
jurisdiction after proclamation? 2) CSC: In the case of decisions of the CSC,
Administrative Circular 1-95538 which took
A: The difference lies in the due process implications. effect on June 1, 1995, provides that final
resolutions of the CSC shall be appealable by
OVER PRE- OVER CONTESTS (AFTER certiorari to the CA within 15 days from receipt
PROCLAMATION PROCLAMATION) of a copy thereof. From the decision of the CA,
CONTROVERSY the party adversely affected thereby shall file a
COMELECs jurisdiction is COMELECs jurisdiction is petition for review on certiorari under Rule 45 of
administrative or quasi- judicial and is governed the Rules of Court.
judicial and is governed by the requirements of
by the less stringent judicial process. 3) COMELEC: only decision en banc may be brought
requirements of to the Court by certiorari since Article IX-C, says
administrative due that motions for reconsideration of decisions
process (although the SC shall be decided by the Commission en banc.
has insisted that question (Reyes v. Mindoro, G.R. No. 108886, May 5, 1995)
on qualifications
should be decided only Q: What is the procedural requisite before certiorari
after a full-dress to the Supreme Court may be availed of?
hearing).
A: Rule 65, Section 1 says that certiorari may be
Note: Hence, even in the case of regional or provincial or resorted to when there is no other plain or speedy
city offices, it does make a difference whether the and adequate remedy. But reconsideration is a
COMELEC will treat it as a pre-proclamation controversy or speedy and adequate remedy. Hence, a case may be
as a contest. brought to the Supreme Court only after
reconsideration.
COMMISSION ON AUDIT
Q: Discuss the decision-making process in these
Q: Can the COA be divested of its power to examine Commissions.
and audit government agencies?
A:
A: No law shall be passed exempting any entity of the 1. Each Commission shall decide matter or cases by a
Government or its subsidiary in any guise majority vote of all the members within 60
whatsoever, or any investment of public funds, from days from submission.
the jurisdiction of the Commission on Audit. a. COMELEC may sit en banc or in 2
The mere fact that private auditors may audit divisions.
government agencies does not divest the COA of its b. Election cases, including pre-
power to examine and audit the same government proclamation controversies are decided
agencies. (DBP v. COA, G.R. No. 88435, Jan. 16, 2002)

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CONSTITUTIONAL COMMISSIONS

in division, with motions for jurisdiction and does not ordinarily empower the
reconsideration filed with the COMELEC Court to review the factual findings of the
en banc. Commissions. (Aratuc v. COMELEC, G.R. No. L-49705-
c. The SC has held that a majority decision 09, Feb. 8, 1979)
decided by a division of the COMELEC is
a valid decision.
2. As collegial bodies, each Commission must
act as one, and no one member can decide a
case for the entire commission

Q: Discuss the rule on appeals.

A:
1. Decisions, orders or rulings of the COMELEC/CoA
may be brought on certiorari to the SC under
Rule 65.
2. Decisions, orders or rulings of the CSC should be
appealed to the CA under Rule 43.

RENDERED IN THE EXERCISE OF ADMINISTRATIVE


FUNCTION

Q; Does the CSC have the power to hear and decide


administrative cases?

A: Yes. Under the Administrative Code of 1987, the


CSC has the power to hear and decide administrative
cases instituted before it directly or on appeal,
including contested appointments.

Q: Which body has the jurisdiction on personnel


actions, covered by the civil service?

A: CSC. It is the intent of the Civil Service Law, in


requiring the establishment of a grievance procedure,
that decisions of lower officials (in cases involving
personnel actions) be appealed to the agency head,
then to the CSC. The RTC does not have jurisdiction
over such personal actions. (G. R. No. 140917.
October 10, 2003)

Q: What is the jurisdiction of the COMELEC?

A:The COMELEC hasexclusive original jurisdiction


over all contests relating to returns, and qualifications
of all elective regional, provincial, and city officials.It
also hasappellate jurisdiction over all contests
involving elective municipal officials decided by trial
courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited
jurisdiction.

Q: Discuss the certiorari jurisdiction of the SC over


these Commissions.

A: Proceedings are limited to issues involving grave


abuse of discretion resulting in lack or excess of

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BILL OF RIGHTS Purpose


Property taken Property is Property is
FUNDAMENTAL POWERS OF THE STATE is destroyed taken for taken for
public use public use
Q: What are the fundamental powers of the State? Compensation
Intangible; Protection and Value of the
A: general public property
1. Police Power welfare improvements expropriated
2. Power of Eminent Domain
3. Power of Taxation POLICE POWER

Note: These powers are considered inherent because they Q: What is police power?
belong to the very essence of government and without
them no government can exist. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2006)
A: Police power is that inherent and plenary power of
the State which enables it to prohibit all that is
Q: What are the similarities among the fundamental hurtful to the comfort, safety, and welfare of society.
powers of the State? (Ermita-Malate Hotel and Motel Operators
Association, Inc. vs. Mayor of Manila, L-24693, July
A: 31, 1967)
1. They are inherent in the State and may be
exercised by it without need of express Q: What are the characteristics of police power as
constitutional grant. compared to the powers of taxation and eminent
2. They are not only necessary but also domain?
indispensable. The State cannot continue or be
effective unless it is able to exercise them. A: Police power easily outpaces the other two
3. They are methods by which the State interferes powers. It regulates not only property, but also the
with private rights. liberty of persons. Police power is considered the
4. They all presuppose an equivalent compensation most pervasive, the least limitable, and the most
for the private rights interfered with. demanding of the three powers. It may be exercised
5. They are exercised primarily by the legislature. as long as the activity or property sought to be
regulated has some relevance to the public welfare.
Q: What are the common limitations on these (Gerochi v. Department of Energy, G. R. 159796, July
powers? 17, 2007)

A: Q: What is the scope of police power?


1. May not be exercised arbitrarily to the prejudice
of the Bill of Rights A: Police Power rests upon public necessity and upon
2. Subject at all times to the limitations and the right of the State and of the public to self-
requirements of the Constitution and may in protection. For this reason, its scope expands and
proper cases be annulled by the courts, i.e. when contracts with the changing needs.(Churchill vs.
there is grave abuse of discretion. Rafferty, 32 Phil. 580, 602-603, 1915)

Q: How do these powers differ from one another? Q: What are the aspects of police power?

A: A: Generally, police power extends to all the great


public needs. However, its particular aspects are the
POLICE EMINENT
TAXATION following:
POWER DOMAIN
1. Public health
Extent of power
2. Public morals
Regulates Affects only Affects only
3. Public safety
liberty and property rights property rights
4. Public welfare
property
Power exercised by whom
Q: Who exercises police power?
Exercised only Exercised only Maybe
by the by the exercised by A: GR: Police power is lodged primarily in the national
government government private entities legislature.

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BILL OF RIGHTS

XPN: By virtue of a valid delegation of legislative A:


power, it may be exercised by the: 1. Lawful subject The interests of the public
1. President generally, as distinguished from those of a
2. Administrative bodies particular class, require the exercise of the police
3. Lawmaking bodies on all municipal levels, power
including the barangay. Municipal 2. Lawful means The means employed are
governments exercise this power under the reasonably necessary for the accomplishment of
general welfare clause. (Gorospe, the purpose and not unduly oppressive upon
Constitutional Law: Notes and Readings on individuals. (NTC vs. Philippine Veterans Bank,
the Bill of Rights, Citizenship and Suffrage, 192 SCRA 257).
Vol. 2.)
EMINENT DOMAIN
Q: Can the MMDA exercise police power?
Q: What is the power of eminent domain?
A: No, the MMDAs powers are limited to the
formulation, coordination, regulation, A: It is the power of the state to forcibly acquire the
implementation, preparation, management, needed property in order to devote it to the intended
monitoring, setting of policies, installing a system, public use, upon payment of just compensation.
and administration. Nothing in RA No. 7924 granted (Cruz, Constitutional Law, p.62)
the MMDA police power, let alone legislative power.
(MMDA vs. Trackworks GR. No. 179554, December Q: What are the conditions for the exercise of the
16, 2009) power of eminent domain?

Q: What are the requisites for the valid exercise of A:


police power by the delegate? 1. Taking of private property
2. For public use
A: 3. Just compensation
1. Express grant by law 4. Observance of due process
2. Must not be contrary to law
3. GR: Within territorial limits of LGUs Q: Who exercises the power of eminent domain?

XPN: When exercised to protect water A: Congress. However, the following may exercise this
supply (Wilson v. City of Mountain Lake power by virtue of a valid delegation:
Terraces, 417 P.2d 632, 1966) 1. The President of the Philippines
2. Various local legislative bodies
Q: Can anyone compel the government to exercise 3. Certain public corporations like the Land
police power? Authority and National Housing Authority
4. Quasi-public corporations like the Philippine
A: No. The exercise of police power lies within the National Railways
discretion of the legislative department. The only
remedy against legislative inaction is a resort to the Q: What is the difference between the power of
courtof public opinion, a refusal of the electorate to expropriation as exercised by Congress and the
turn to the legislative members who, in their view, power of expropriation as exercised by delegates?
have been remiss in the discharge of their duties.
A: When exercised by Congress, the power is
Q: Can the courts interfere with the exercise of pervasive and all-encompassing. It can reach every
police power? form of property which may be needed by the State
for public use. In fact, it can reach even private
A: No. If the legislature decides to act, the choice of property already dedicated to public use, or even
measures or remedies lies within its exclusive property already devoted to religious worship. (Barlin
discretion, as long as the requisites for a valid v. Ramirez, 7 Phil. 41) But when exercised by
exercise of police power have been complied with. delegates, it can only be broad as the enabling law
and the conferring authorities want it to be.
Q: What are the requisites for a valid exercise of
police power? As to the question of necessity, the same is a political
question when the power is exercised by Congress.

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On the other hand, it is a judicial question when taken for public use; no just compensation
exercised by delegates. The courts can determine payment of just but payment in the form
whether there is genuine necessity for its exercise, as compensation of damages when
well as the value of the property. applicable
Beneficiary
Q: What are the requisites for a valid taking? State/public Private
(Gorospe, Constitutional Law: Notes and Readings on
A: PMAPO the Bill of Rights, Citizenship and Suffrage, Vol. 2)
1. The expropriator must enter a Private property
2. Entry must be for more than a Momentary ***For complete discussion of the power of eminent
period domain, please refer to Bill of Rights
3. Entry must be under warrant or color of legal
Authority TAXATION
4. Property must be devoted to Public use or
otherwise informally appropriated or injuriously Q: What are taxes?
affected
5. Utilization of property must be in such a way as A: Taxes are:
to Oust the owner and deprive him of beneficial 1. Enforced proportional contributions from
enjoyment of the property (Republic v. vda. De persons and property
Castellvi, G.R. No. L-20620, Aug. 15, 1974) 2. Levied by the State by virtue of its sovereignty
3. For the support of the government
Q: What properties can be taken? 4. For public needs

A: All private property capable of ownership, Q: What is taxation?


including services.
A: It is the process by which the government, through
Q: What properties cannot be taken? its legislative branch, imposes and collects revenues
to defray the necessary expenses of the government,
A: Money and choses in action, personal right not and to be able to carry out, in particular, any and all
reduced in possession but recoverable by a suit at projects that are supposed to be for the common
law, right to receive, demand or recover debt, good. (Political Law Reviewer, Suarez , 2011). Simply
demand or damages on a cause of action ex contractu put, taxation is the method by which these
or for a tort or omission of duty. contributions are exacted. (Gorospe, Constitutional
Law: Notes and Readings on the Bill of Rights,
Note: A chose in action is a property right in something Citizenship and Suffrage, Vol. 2)
intangible, or which is not in ones possession but
enforceable through legal or court action. Ex. cash, a right
of action in tort or breach of contract, an entitlement to Q: Does the power to tax include the power to
cash refund, checks, money, salaries, insurance claims destroy?

Q: Distinguish eminent domain from destruction A: Yes, only if it is used as a valid implement of the
from necessity. police power in discouraging and in effect, ultimately
prohibiting certain things or enterprises inimical to
A: public welfare. But where the power to tax is used
DESTRUCTION FROM solely for the purpose of raising revenues, the
EMINENT DOMAIN modern view is that it cannot be allowed to
NECESSITY
Who can exercise confiscate or destroy. If this is sought to be done, the
Only authorized public May be validly tax may be successfully attacked as an inordinate and
entities or public undertaken by private unconstitutional exercise of the discretion that is
officials individuals usually vested exclusively in the legislature in
Kind of right ascertaining the amount of tax (Cruz, Constitutional
Law, 2006 Ed., p. 88)
Public right Right of self-defense,
self-preservation,
whether applied to
Q: What is the nature of the power of taxation?
persons or to property
Requirement
A:
Conversion of property No need for conversion;

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1. The power to tax is primarily vested in the 3. Uniformity, equitability and progressive system
legislature. This power, however, may now be of taxation (Art. VI, Sec 28)
exercised by local legislative bodies, no longer by 4. Non-impairment of contracts (Art. III, Sec. 10)
virtue of a valid delegation as before, but 5. Non-imprisonment for non-payment of poll tax
pursuant to a direct authority conferred by (Art. III, Sec. 20)
Article X, Section 5 of the 1987 Constitution. 6. Revenue and tariff bills must originate in the
2. The power to tax is subject to the limitations House of Representatives (Art I, Sec. 7)
imposed by the Constitution. 7. Non-infringement of religious freedom (Art. III,
3. The power of taxation is inherent in the State Sec.4)
and the State therefore can still exercise this 8. Delegation of legislative authority to the
power even if the constitution had not President to fix tariff rates, import and export
mentioned about it. (Political Law Reviewer, quotas, tonnage and wharfage dues
Suarez , 2011). 9. Tax exemption of properties actually, directly and
exclusively used for religious, charitable and
Q: What is the source of the obligation to pay taxes? educational purposes (NIRC, Sec 30)
10. Majority vote of all the members of Congress
A: Payment of taxes is an obligation based on law, required in case of legislative grant of tax
and not on contract. It is a duty imposed upon the exemptions
individual by the mere fact of his membership in the 11. Non-impairment of SCs jurisdiction in tax cases
body politic and his enjoyment of the benefits 12. Tax exemption of revenues and assets of,
available from such membership. including grants, endowments, donations or
contributions to educational institutions
Note: Except only in the case of poll (community) taxes,
non-payment of a tax may be the subject of criminal Q: Do local government units have the power of
prosecution and punishment. The accused cannot invoke taxation?
the prohibition against imprisonment for debt as taxes are
not considered debts.
A: Yes. Each LGU shall have the power to create its
own sources of revenues and to levy taxes, fees and
Q: What are the matters left to the discretion of the
charges subject to such guidelines and limitations as
legislature?
the Congress may provide, consistent with the basic
policy of local autonomy. Such taxes, fees, and
A:
charges shall accrue exclusively to the local
1. Whether to tax in the first place
governments (Sec. 5, Art. X).
2. Whom or what to tax
3. For what public purpose
Q: Should there be notice and hearing for the
4. Amount or rate of the tax
enactment of tax laws?
Q: What are the limitations, in general, on the
A: From the procedural viewpoint, due process does
power of taxation?
not require previous notice and hearing before a law
prescribing fixed or specific taxes on certain articles
A: Inherent and Constitutional limitations.
may be enacted. But where the tax to be collected is
to be based on the value of taxable property, the
Q: What are inherent limitations?
taxpayer is entitled to be notified of the assessment
proceedings and to be heard therein on the correct
A:
valuation to be given the property.
1. Public purpose
2. Non-delegability of power
Q: What is the meaning of uniformity in taxation?
3. Territoriality or situs of taxation
4. Exemption of government from taxation
A: It refers to geographical uniformity, meaning it
5. International comity
operates with the same force and effect in every
place where the subject of it is found.
Q: What are Constitutional limitations?
Q: What is a progressive system of taxation?
A:
1. Due process of law (Art. III, Sec.1)
A: It means that the tax rate increases as the tax base
2. Equal protection clause (Art. III, Sec.1)
increases.

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Q: When is there double taxation? and regulation is merely that incidental revenue is
incidental also obtained does not
A: It occurs when: make the imposition a tax
1. Taxes are laid on the same subject
2. By the same authority PRIVATE ACTS AND THE BILL OF RIGHTS
3. During the same taxing period
4. For the same purpose Q: What is the Bill of Rights?

Note: There is no provision in the Constitution specifically A: It is the set of prescriptions setting forth the
prohibiting double taxation, but it will not be allowed if it fundamental civil and political rights of the individual,
violates equal protection. (Gorospe, Constitutional Law:
and imposing limitations on the powers of
Notes and Readings on the Bill of Rights, Citizenship and
Suffrage, Vol. 2) government as a means of securing the enjoyment of
those rights.
Q: What are the kinds of tax exemptions?
Q: When can the Bill of Rights be invoked?
A: Tax exemptions may either be:
1. Constitutional A: In the absence of governmental interference, the
2. Statutory liberties guaranteed by the Constitution cannot be
invoked against the State. The Bill of Rights guarantee
Q: Once an exemption is granted by the legislature, governs the relationship between the individual and
may such exemption be revoked at will? the State. Its concern is not the relation between
private individuals. What it does is to declare some
A: forbidden zones in the private sphere inaccessible to
1. If exemption is granted gratuitously revocable any power holder. (People v. Marti, G.R. No. 81561,
2. If exemption is granted for valuable Jan. 18, 1991)
consideration (non-impairment of contracts)
irrevocable Q: Can the Bill of Rights be invoked against private
individuals?
Q: What is the nature of a license fee?
A: No. In the absence of governmental interference,
A: Ordinarily, license fees are in the nature of the the liberties guaranteed by the Constitution cannot
exercise of police power because they are in the form be invoked. Put differently, the Bill of Rights is not
of regulation by the State and considered as a meant to be invoked against acts of private
manner of paying off administration costs. However, individuals.(Yrasegui vs. PAL, G.R. No. 168081, Oct.
if the license fee is higher than the cost of regulating, 17, 2008)
then it becomes a form of taxation (Ermita-Malate
Note: However, according to the Supreme Court in Zulueta
Hotel and Motel Operators Assoc., Inc. vs. City Mayor
v. CA, G.R. No. 107383, Feb. 20 1996, where the husband
of Manila, G.R. No. L-24693, Oct. 23, 1967). invoked his right to privacy of communication and
correspondence against a private individual, his wife, who
Q: Distinguish tax from license fee. had forcibly taken from his cabinet and presented as
evidence against him documents and private
TAX LICENSE FEE correspondence, held these papers inadmissible in
Levied in exercise of the Imposed in the exercise evidence, upholding the husbands right to privacy.
taxing power of the police power of the
state DUE PROCESS
The purpose of the tax is License fees are imposed
to generate revenues for regulatory purposes Q: What is due process?
which means that it must
only be of sufficient A: Due process means that:
amount to include 1. There shall be a law prescribed in harmony with
expenses in issuing a the general powers of the legislature
license; cost of necessary 2. It shall be reasonable in its operation
inspection or police 3. It shall be enforced according to the regular
surveillance, etc. methods of procedure prescribed, and
If its primary purpose is If regulation is the
to generate revenue, primary purpose, the fact

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BILL OF RIGHTS

4. It shall be applicable alike to all citizens of the 1. The right to hearing which includes the right to
State or to all of a class.(People v. Cayat, G.R. No. present ones case and submit evidence to
L-45987, May 5, 1939) support thereof.
2. Tribunal or body or any of its judges must act on
Q: What are the two kinds of due process? its own independent consideration of the law
and facts of the controversy.
A: They are: 3. Tribunal must consider the evidence presented.
1. Procedural Due Process 4. Evidence must be substantial, which means
2. Substantive Due Process relevant evidence as a reasonable man might
accept as adequate to support a conclusion
RELATIVITY OF DUE PROCESS 5. The decision must have something to support
itself
Q: Explain the concept of relativity of due process? 6. Decision must be based on evidence presented
during hearing or at least contained in the record
A: The definition of due process has been left to the and disclosed by the parties
best judgment of our judiciary considering the 7. Decision must be rendered in a manner that the
peculiarity and the circumstances of each case. In a parties can know the various issues involved and
litany of cases that have been decided in this the reason for the decision rendered. (Ang Tibay
jurisdiction, the common requirement to be able to vs CIR, Gr. No. L-46496, February 27, 1940).
conform to due process is fair play, respect for justice
and respect for the better rights of others. In Note: When a regulation is being issued under the quasi-
accordance with the standards of due process, any legislative authority of an administrative agency, the
court at any particular time, will be well guided, requirements of notice, hearing and publication must be
instead of being merely confined strictly to a precise observed. (Commissioner of Internal Revenue v. CA, G.R.
No. 119761, Aug. 29, 1996)
definition which may or may not apply in every case.
(Political Law Reviewer, Suarez , 2011).
Q: Is the right to appeal part of due process?
Q: What are the requirements of due process in
judicial proceedings? A:
GR: The right to appeal is not a natural right or a part
A: Whether in civil or criminal judicial proceedings, of due process.
due process requires that there be:
XPN: In cases where the right to appeal is
1. An impartial and disinterested court clothed by guaranteed by the Constitution (Art. VIII,
law with authority to hear and determine the Sec. XIV) or by a statute.
matter before it.
Q: Distinguish due process in administrative
Note: The test of impartiality is whether the judges proceedings from due process in judicial proceeding.
intervention tends to prevent the proper presentation
of the case or the ascertainment of the truth. A:
ADMINISTRATIVE JUDICIAL
2. Jurisdiction lawfully acquired over the defendant Essence
or the property which is the subject matter of the Opportunity to explain A day in court
proceeding ones side
Means
3. Notice and opportunity to be heard be given to Usually through Submission of pleadings
the defendant seeking a and oral arguments
reconsideration of the
4. Judgment to be rendered after lawful hearing, ruling or the action
clearly explained as to the factual and legal bases taken, or appeal to a
(Art. VII, Sec. 14, 1987 Constitution) superior authority
Notice and Hearing
Q: What are the requisites of administrative due When exercising quasi- Both are essential:
process? judicial function 1. Notice
(PhilCom-Sat v. Alcuaz, 2. Hearing
A: G.R. No. 84818, Dec.
18, 1989)

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Q: What is the nature of procedural due process in securing an employment permit from the Mayor of
student discipline proceedings? Manila. Lee Min Ho sought to enjoin its
enforcement. Is the said ordinance
A: Student discipline proceedings may be summary unconstitutional? Decide.
and cross-examination is not an essential part
thereof. However, to be valid, the following A: The ordinance is unconstitutional. While it is true
requirements must be met: that the Philippines as a State is not obliged to admit
1. Written notification sent to the student/s aliens within its territory, once an alien is admitted,
informing the nature and cause of any accusation he cannot be deprived of life without due process of
against him/her; law. This guarantee includes the means of livelihood.
2. Opportunity to answer the charges, with the The ordinance amounts to a denial of the basic right
assistance of a counsel, if so desired; of the people of the Philippines to engage in the
3. Presentation of ones evidence and examination means of livelihood. (Mayor Villegas vs. Hiu Ching
of adverse evidence; Tsai Pao Hao, G.R. No. L-29646, Nov. 10, 1978)
4. Evidence must be duly considered by the
investigating committee or official designated by PROCEDURAL AND SUBSTANTIVE DUE PROCESS
the school authorities to hear and decide the
case.(Guzman v. National University, G.R. No. L- Q: What are the two aspects of due process?
68288, July 11, 1986)
5. The student has the right to be informed of the A:
evidence against him SUBSTANTIVE DUE PROCEDURAL DUE
6. The penalty imposed must be proportionate to PROCESS PROCESS
the offense. This serves as a Serves as a restriction on
restriction on the actions of judicial and
Q: What kind of due process is required in governments law and quasi-judicial agencies of
deportation proceedings? rule-making powers the government
Requisites
A: Although deportation proceedings are not criminal 1. The interests of the 1. Impartial court or
in nature, the consequences can be as serious as public in general, as tribunal clothed with
those of a criminal prosecution. The provisions of the distinguished from judicial power to hear
Rules of Court for criminal cases are applicable. (Lao those of a particular and determine the
Gi alias Chia, Jr. vs. CA, GR. No. 81789, Dec. 29, 1989.) class, require the matters before it.
intervention of the 2. Jurisdiction properly
Q: What are the instances when hearings are not state acquired over the
necessary? 2. The means employed person of the
are reasonably defendant and over
A: necessary for the property which is the
1. When administrative agencies are exercising accomplishment of the subject matter of the
their quasi-legislative functions. purpose and not proceeding
2. Abatement of nuisance per se. unduly oppressive 3. Opportunity to be
3. Granting by courts of provisional remedies. upon individuals. heard
4. Cases of preventive suspension. 4. Judgment rendered
5. Removal of temporary employees in the upon lawful hearing
government service. and based on
6. Issuance of warrants of distraint and/or levy by evidence adduced.
the BIR Commissioner.
7. Cancellation of the passport of a person charged SUBSTANTIVE DUE PROCESS
with a crime.
8. Suspension of a banks operations by the Q: What is Substantive due process?
Monetary Board upon a prima facie finding of
liquidity problems in such bank. A: It is a guarantee that life, liberty and property shall
not be taken away from anyone without due process
Q: Ordinance No. 6537 of City of Manila makes it of law. If a law is invoked to take away ones life,
unlawful for non- Filipino citizens to be employed or liberty or property, the more specific concern of
to be engaged in any kind of trade, business or substantive due process is not to find out whether
occupation within the City of Manila, without said law is being enforced in accordance with

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procedural formalities but whether or not the said 3. Court/tribunal must have jurisdiction
law is a proper exercise of legislative power. (Political
Law Reviewer, Suarez, 2011). Q: Does an extraditee have a right of access to the
evidence against him?
Q: The City of Manila enacted Ordinance No. 7783
which prohibited the establishment or operation of A: During the executive phase of an extradition
business providing certain forms of amusement, proceeding an extraditee does not have the right of
entertainment, services and facilities where women access to evidence in the hands of the government.
are used as tools in entertainment and which tend But during the judicial phase he has. (Secretary vs.
to disturb the community, among the inhabitants Judge Lantion, GR. No. 139465, Oct. 17, 2000)
and adversely affect the social and moral welfare of
community. Owners and operators concerned were Q: Does due process require a trial-type proceeding?
given three (3) months to wind up their operations
or to transfer to any place outside the Ermita- A: No. The essence of due process is to be found in
Malate area, or convert said business to other kinds the reasonable opportunity to be heard and to
of business which are allowed. Does the ordinance submit any evidence one may have in support of
violate the due process clause? ones defense. To be heard does not always mean
verbal arguments in court. One may be heard also
A: Yes, these lawful establishments may only be through pleadings. Where opportunity to be heard,
regulated. They cannot be prohibited from carrying either through oral arguments or pleadings, is
on their business. This is a sweeping exercise of police accorded, there is no denial of due process (Zaldivar
power which amounts to interference into personal v. Sandiganbayan, G.R. No. L-32215, Oct. 17, 1988).
and private rights which the court will not
countenance. There is a clear invasion of personal or Note: The meetings in the nature of consultations and
property rights, personal in the case of those conferences cannot be considered as valid substitutes for
the proper observance of notice and hearing (Equitable
individuals desiring of owning, operating and
Banking Corporation v. NLRC, G.R. No. 102467, June 13,
patronizing those motels and property in terms of 1987).
investments made and the salaries to be paid to
those who are employed therein. If the City of Manila Q: An investigating committee was created to
desired to put an end to prostitution, fornication, and inquire into the charges against Ms. Angel Lucero. Is
other social ills, it can instead impose reasonable she entitled to be informed of the findings and
regulations such as daily inspections of the recommendations of the investigating committee?
establishments for any violation of the conditions of
their licenses or permits, it may exercise its authority A: No, but Ms. Lucero is entitled to meet the charges
to suspend or revoke their licenses for these and the evidence presented against her during the
violations; and it may even impose increased license hearing of the investigating committee. (Pefianco vs.
fees. (City of Manila vs. Laguio, Jr. GR. No. 1118127, Moral, GR. No. 132248, January 19, 2000)
April 12, 2005)
CONSTITUTIONAL AND STATUTORY DUE PROCESS
PROCEDURAL DUE PROCESS
Q: Differentiate constitutional due process from
Q: What is procedural due process? statutory due process.
A: Procedural due process relates to the mode of A:
procedure which government agencies must follow in
CONSTITUTIONAL DUE STATUTORY DUE
the enforcement and application of laws. (Bernas,
PROCESS PROCESS
1987 Philippine Constitution: A Comprehensive
Protects the individual While found in the Labor
Reviewer, 2006)
from the government Code and Implementing
and assures him of his Rules, it protects
Q: What are the fundamental elements of
rights in criminal, civil or employees from being
procedural due process?
administrative unjustly terminated
proceedings without just cause after
A:
notice and hearing
1. Notice (to be meaningful, must be as to time and
(Agabon v. NLRC, G.R.
place)
No. 158693, November
2. Opportunity to be heard
17, 2004)

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Q: What are the standards of due process in all cases JUDICIAL STANDARDS OF REVIEW
of termination of employment?
Q: Given the fact that not all rights and freedoms or
A: liberties under the Bill of Rights and other values of
society are of similar weight and importance,
I. For Termination of Employment Based On Just governmental regulations that affect them would
Causes (Article 282, Labor Code) have to be evaluated based on different yardsticks,
or standards of review. What are these standards of
The following standards of due process shall be review?
substantially observed.
A:
1. Written Notice Served on the Employee specifying 1. Deferential review laws are upheld if they
the grounds of termination and giving to said rationally further a legitimate governmental
employee reasonable opportunity within which to interest, without courts seriously inquiring into
explain his side. the substantiality of such interest and examining
the alternative means by which the objectives
2.Hearing or conference During which the employee could be achieved
concerned, with the assistance of counsel, If the 2. Intermediate review the substantiality of the
employee so desires, is given the opportunity to governmental interest is seriously looked into
respond to the charge, present his evidence or rebut and the availability of less restrictive alternatives
the evidence against him. are considered.
3. Strict scrutiny the focus is on the presence of
3. Written Notice of Termination Served on the compelling, rather than substantial governmental
Employee Indicatingthat upon due consideration of interest and on the absence of less restrictive
the circumstances, grounds have been established to means for achieving that interest (Separate
justify his termination. In case of termination, the opinion of Justice Mendoza in Estrada v.
foregoing notices shall be served on the employees Sandiganbayan, G.R. No. 148965, Feb. 26, 2002)
last address.
VOID-FOR-VAGUENESS DOCTRINE
II. If the dismissal is based on authorized causes under
Articles 283 and 284 Q: What is the void for vagueness doctrine?

The employer must give the employee and the A: It holds that a law is vague when it lacks
Department of Labor and Employment written comprehensive standards that men of common
notices 30 days prior to the effectivity of his intelligence must necessarily guess at its common
separation.(Political Law Reviewer, Suarez ,p. 129 meaning and differ as to its application. In such
2011). instance, the statute is repugnant to the Constitution
because:
HIERARCHY OF RIGHTS 1. It violates due process for failure to accord
persons, especially the parties targeted by it, fair
Q: Is there a hierarchy of constitutional rights? notice of what conduct to avoid
2. It leaves law enforcers an unbridled discretion in
A: Yes. While the Bill of Rights also protects property carrying out its provisions (People v. de la Piedra,
rights, the primacy of human rights over property G.R. No. 128777, Jan. 24, 2001)
rights is recognized. Property and property rights can
be lost thru prescription; but human rights are Q: Is legislation couched in imprecise language void
imprescriptible. In the hierarchy of civil liberties, the for vagueness?
rights of free expression and of assembly occupy a
preferred position as they are essential to the A: No. The "void-for-vagueness" doctrine does not
preservation and vitality of our civil and political apply as against legislations that are merely couched
institutions (Philippine Blooming Mills Employees in imprecise language but which specify a standard
Organization v. Philippine Blooming Mills Co., Inc., though defectively phrased; or to those that are
G.R. No. L-31195, June 5, 1973). apparently ambiguous yet fairly applicable to certain
types of activities. The first may be "saved" by proper
construction, while no challenge may be mounted as

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against the second whenever directed against such protection clause cannot sanction. Such
activities. discriminating differentiation clearly reverberates to
label the commission as a vehicle for vindictiveness
The Supreme Court held that the doctrine can only be and selective retribution. (Biraogo v. The Philippine
invoked against that species of legislation that is Truth Commission of 2010, G.R. No. 192935, Dec. 7,
utterly vague on its face, i.e., that which cannot be 2010)
clarified either by a saving clause or by construction.
(Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, REQUISITES FOR VALID CLASSIFICATION
2001)
Q: What are the requisites for a valid classification?
Q: What is the test in determining whether a
criminal statute is void for uncertainty? A: The classification must:
1. Rest on substantial distinctions
A: The test is whether the language conveys a 2. Be germane to the purpose of the law
sufficiently definite warning as to the proscribed 3. Not be limited to existing conditions only;
conduct when measured by common understanding 4. Apply equally to all members of the same
and practice. It must be stressed, however, that the class. (People v. Cayat, GR. No. L-45987, May
"vagueness" doctrine merely requires a reasonable 5, 1939)
degree of certainty for the statute to be upheld - not
absolute precision or mathematical exactitude. Q: Does equal protection of the laws apply to both
(Estrada vs. Sandiganbayan, G.R. No. 148560, Nov. citizens and aliens?
19, 2001)
A:
Note: The void-for-vagueness doctrine cannot be used to GR: It applies to all persons, both citizens and aliens.
impugn the validity of a criminal statute using facial The Constitution places the civil rights of aliens on
challenge but it may be used to invalidate a criminal equal footing with those of the citizens.
statute as applied to a particular defendant.
XPN: Statutes may validly limit exclusively to
EQUAL PROTECTION OF THE LAWS
citizens the enjoyment of rights or privileges
connected with public domain, the public
CONCEPT works, or the natural resources of the State

Q: What is the concept of equal protection of the Note: The rights and interests of the State in these things
laws? are not simply political but also proprietary in nature and so
citizens may lawfully be given preference over aliens in
A: It means that all persons or things similarly their use or enjoyment.
situated should be treated alike, both as to rights
conferred and responsibilities imposed. It guarantees Aliens do not enjoy the same protection as regards political
equality, not identity of rights. It does not forbid rights. (Inchong v. Hernandez,G.R. No. L-7995, May 31,
1957)
discrimination as to persons and things that are
different. What it forbids are distinctions based on
Q: Is classification of citizens by the legislature
impermissible criteria unrelated to a proper
unconstitutional?
legislative purpose, or class or discriminatory
legislation, which discriminates against some and
A:
favors others when both are similarly situated. (2
GR: The legislature may not validly classify the
Cooley, Constitutional Limitations, 824-825)
citizens of the State on the basis of their origin, race,
or parentage.
Q: Executive Order No. 1 was issued by President
NoyNoy Aquino to investigate reported cases of
XPN: The difference in status between
graft and corruption of the Arroyo administration. Is
citizens and aliens constitutes a basis for
such action valid?
reasonable classification in the exercise of
police power. (Demore v. Kim, 538 U.S. 510,
A: No, it must be borne in mind that the Arroyo
2003)
administration is but just a member of a class, that is,
a class of past administrations. It is not a class of its
Q: What is the rationale for allowing, in exceptional
own. Not to include past administrations similarly
cases, valid classification based on citizenship?
situated constitutes arbitrariness which the equal

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A: Aliens do not naturally possess the sympathetic proviso may be fair on its face and impartial in
consideration and regard for customers with whom appearance but it cannot be grossly discriminatory in
they come in daily contact, nor the patriotic desire to its operation, so as practically to make unjust
help bolster the nations economy, except in so far as distinctions between persons who are without
it enhances their profit, nor the loyalty and allegiance differences. Hence, the law which was valid initially
which the national owes to the land. These becomes void for being a violation of the equal
limitations on the qualifications of aliens have been protection clause. (Central Bank Employees
shown on many occasions and instances, especially in Association, Inc. vs. Bangko Sentral ng Pilipinas, 446
times of crisis and emergency. (Ichong v. Hernandez, SCRA 229)
G.R. No. L-7995, May 31, 1957)
Q: What are the tests in determining compliance
Q: What is the intensified means test or the with the equal protection clause?
balancing of interest/equality test?
A:
A: It is the test which does not look solely into the 1. Rational Basis Test - The guaranty of the equal
governments purpose in classifying persons or things protection of the laws is not violated by
(as done in Rational Basis Test) nor into the existence legislation based on reasonable classification.
of an overriding or compelling government interest This standard of review is typically quite
so great to justify limitations of fundamental rights deferential; legislative classifications are
(Strict Scrutiny Test) but closely scrutinizes the presumed to be valid largely for the reason
relationship between the classification and the that the drawing of lines that create distinctions
purpose, based on spectrum of standards, by gauging is peculiarly a legislative task and unavoidable
the extent to which constitutionally guaranteed rights one
depend upon the affected individuals interest.
2. Strict Scrutiny Test - It is applied when the
STANDARDS OF JUDICIAL REVIEW challenged statute either:
a. Classifies on the basis of an inherently
Q: What is the doctrine of Relative Constitutionality suspect characteristic
or Principle of Altered Circumstance? b. Infringes fundamental constitutional rights;
that all legal restrictions which curtail the
A: A statute may be valid at one time as applied to a civil rights of a single racial group are
set of facts but it may become void at another time immediately suspect. That is not to say that
because of altered circumstances. all such restrictions are unconstitutional. It is
to say that courts must subject them to the
Example: Sec. 15(c) of Art. II of Republic Act 7653 most rigid scrutiny. The presumption of
exempted the BSP Officers from the Salary constitutionality is reversed; that is, such
Standardization Law (SSL), but did not exempt rank legislation is assumed to be unconstitutional
and file employees. Said law is held to be until the government demonstrates
constitutional as there were substantial distinctions otherwise. (Central Bank Employees
that made real differences between two classes. Association Inc. vs. BSP, GR. No. 148208.
Subsequently, certain laws were enacted by Congress December 15, 2004)
extending the SSL exemption to the rank-and-file
employees of other GFIs. The subsequent enactments Q: What are the differences between the tests to
constitute significant changes in circumstance that determine compliance with the equal protection
considerably alter the reasonability of the continued clause?
operation of the last proviso of Section 15(c), Article II
of Republic Act No. 7653, specifically in relation to A:
the fact that the rank-and-file employees of other RATIONAL BASIS TEST STRICT SCRUTINY
GFIs were already exempted from the operation of Applies to legislative Applies to legislative
the SSL and those under BSP were not exempted. classifications in general, classifications affecting
Hence, due to the recent laws enacted by Congress, such as those pertaining fundamental rights or
the substantial distinctions that initially validated the to economic or social suspect classes.
inclusion of the rank-and-file employees in the SSL, is legislation, which do not
rendered moot and academic. The SC held that the affect fundamental rights
classification must not only be reasonable, but must of suspect classes; or is
also apply equally to all members of the class. The not based on gender or

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illegitimacy 2. Probable cause supported the issuance of such


Legislative purpose must Legislative purpose must warrant
be legitimate be compelling 3. Such probable cause had been determined
Classification must be Classification must be personally by a judge
rationally related to the necessary and narrowly 4. Judge personally examined the complainant and
legislative purpose tailored to achieve the his witnesses
legislative purpose 5. The warrant must particularly describe the place
(Central Bank Employees Association Inc. vs. BSP, GR. to be searched and the persons or things to be
No. 148208, December 15, 2004) seized.(Gorospe, Constitutional Law: Notes and
Readings on the Bill of Rights, Citizenship and
Q: What is the Intermediate Scrutiny Test? Suffrage, Vol. 2., p.334)

Note: General warrant is not allowed. It must be issued


A: This test provides that to withstand constitutional
pursuant to specific offense.
challenge, it must be shown that the law or policy
being challenged furthers an important government
Q: What are general warrants?
interest in a way that is substantially related to that
interest. It is generally applied in sex-based
A: These are warrants of broad and general
classifications, illegitimacy, sexual orientation and
characterization or sweeping descriptions which will
free speech. (Craig v. Boren, 429 U.S. 190).
authorize police officers to undertake a fishing
expedition to seize and confiscate any and all kinds of
SEARCHES AND SEIZURES
evidence or articles relating to an offense.

CONCEPT Q: What is the purpose of particularity of


description?
Q: What is the concept of searches and seizures?
A: The purpose is to enable the law officers serving
A: The right of the people to be secure in their the warrant to:
persons, houses, papers, and effects against 1. Readily identify the properties to be seized and
unreasonable searches and seizures of whatever thus prevent them from seizing the wrong items
nature and for any purpose shall be inviolable, and no 2. Leave said peace officers with no discretion
search warrant or warrant of arrest shall issue except regarding the articles to be seized and thus
upon probable cause to be determined personally by prevent unreasonable searches and seizures.
the judge after examination under oath or affirmation (Bache and Co. v. Ruiz, 37 SCRA 823)
of the complainant and the witnesses he may
produce, and particularly describing the place to be Q: When is particularity of description complied
searched and persons or things to be seized. (1987 with?
Constitution, Article 3, Section 2)
A: For warrant of arrest, this requirement is complied
Q: What is the essence of privacy? with if it contains the name of the person/s to be
arrested. If the name of the person to be arrested is
A: The essence of privacy is the right to be left alone. not known, a John Doe warrant may be issued. A John
In context, the right to privacy means the right to be Doe warrant will satisfy the constitutional
free from unwarranted exploitation of ones person requirement of particularity of description if there is
or from intrusion into ones private activities in such a some descriptio personae which is sufficient to enable
way as to cause humiliation to a persons ordinary the officer to identify the accused.
sensibilities.
For a search warrant, the requirement is complied
WARRANT REQUIREMENT with:
1. When the description therein is as specific as
Q: What are the requisites of a valid search warrant the circumstances will ordinarily allow; or
and warrant of arrest? 2. When the description expresses a conclusion
of fact, not of law, by which the warrant
A: officer may be guided in making the search
1. There should be a search warrant or warrant of and seizure; or
arrest

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3. When the things described are limited to actually committing, or is attempting to commit a
those which bear direct relation to the crime; and
offense for which the warrant is being issued 2. Such overt act is done in the presence or within
the view of the arresting officer.
Note: If the articles desired to be seized have any direct
relation to an offense committed, the applicant must Q: What constitutes searching questions?
necessarily have some evidence other than those articles to
prove said offense. The articles subject of search and A: Examination by the investigating judge of the
seizure should come in handy merely to strengthen such complainant and the latters witnesses in writing and
evidence.
under oath or affirmation, to determine whether
there is a reasonable ground to believe that an
Q: What are the properties subject to seizure?
offense has been committed and whether the
accused is probably guilty thereof so that a warrant of
A:
arrest may be issued and he may be held liable for
1. Property subject of the offense
trial.
2. Stolen or embezzled property and other
proceeds or fruits of the offense
WARRANTLESS SEARCHES
3. Property used or intended to be used as means
for the commission of an offense
Q: What are the instances of a valid warrantless
Q: What is probable cause? search?

A: Probable cause is such facts and circumstances A:


antecedent to the issuance of a warrant that in 1. Visual search is made of moving vehicles at
themselves are sufficient to induce a cautious man to checkpoints
rely on them and act in pursuance thereof. 2. Search is an incident to a valid arrest

Note: An officer making an arrest may take from the


Q: How is probable cause determined personally by
person:
the judge? a. Any money or property found upon his person
which was used in the commission of the offense
A: b. Was the fruit thereof
SEARCH WARRANT WARRANT OF ARREST c. Which might furnish the prisoner with the means
The judge must It is not necessary that the of committing violence or escaping
personally examine in judge should personally d. Which might be used as evidence in the trial of
the form of searching examine the complainant the case
questions and answers, and his witnesses; the
in writing and under judge would simply 3. Search of passengers made in airports
oath, the complainant personally review the 4. When things seized are within plain view of a
and the witnesses he initial determination of searching party
may produce on facts the prosecutor to see if it 5. Stop and frisk (precedes an arrest)
personally known to is supported by 6. When there is a valid express waiver made
them. substantial evidence. voluntarily and intelligently
The determination of He merely determines the
Note: Waiver is limited only to the arrest and does not
probable cause depends probability, not the
extend to search made as an incident thereto, or to
to a large extent upon certainty of guilt of the any subsequent seizure of evidence found in the
the finding or opinion of accused and, in so doing, search. (People v. Peralta, G.R. 145176, March 30,
the judge who he need not conduct a 2004)
conducted the required new hearing.
examination of the 7. Customs search
applicant and the 8. Exigent and emergency circumstances. (People v.
witnesses. De Gracia, 233 SCRA 716))

Q: What constitutes personal knowledge? Q: What is the Plain View Doctrine?

A: A: Objects falling in plain view of an officer who has a


1. The person to be arrested must execute an overt right to be in the position to have that view are
act indicating that he had just committed, is subject to seizure even without a search warrant and

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may be introduced as evidence. Requisites for the contraband goods, and explosives. When she frisked
application of the doctrine are the following: Zan, a boarding passenger, she felt something hard
a. The law enforcer in search of the evidence on Zans abdominal area which was later found to
has a prior justification for an intrusion, or is be 3 packs of shabu. Can Zan Dela Cruz invoke a
in a position from which he can view a violation of the search and seizure clause?
particular area;
b. The discovery of the evidence in plain view is A: No. Persons may lose the protection of the search
inadvertent; and seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack of
Q: What is a stop-and-frisk search? subjective expectation of privacy, which expectation
society is prepared to recognize as reasonable. Such
A: It is a limited protective search of outer clothing recognition is implicit in airport security procedures.
for weapons. Probable cause is not required but a With increased concern over airplane hijacking and
genuine reason must exist in light of a police officers terrorism has come increased security at the nations
experience and surrounding conditions to warrant airport. (People vs. Leila Johnson, G.R. No.138881, Dec.
the belief that the person detained has weapons 18, 2000)
concealed. (Malacat v. CA, G.R. No. 123595, Dec. 12,
1997) Q: Rex was arrested, by virtue of a warrant of arrest,
in his room while sleeping. Thereafter, some police
Q: Are searches conducted in checkpoints lawful? officers remained inside the room and ransacked the
locked cabinet where they found a firearm and
A: Yes, provided the checkpoint complies with the ammunition. Is the warrantless search and seizure of
following requisites: the firearm and ammunition justified as an incident
1. The establishment of checkpoint must be to a lawful arrest?
pronounced
2. It must be stationary, not roaming A: No. The scope of the warrantless search is not
3. The search must be limited to visual search without limitations. A valid arrest allows the seizure
and must not be an intrusive search. of evidence or dangerous weapons either on the
person of the one arrested or within the area of his
Note: Not all searches and seizures are prohibited. Between immediate control. The purpose of the exception is to
the inherent right of the State to protect its existence and protect the arresting officer from being harmed by
promote public welfare and an individuals right against the person arrested, who might be armed with a
warrantless search which is however reasonably conducted,
concealed weapon, and to prevent the latter from
the former should prevail.
destroying evidence within reach. In this case, search
A checkpoint is akin to a stop-and-frisk situation whose was made in the locked cabinet which cannot be said
object is either to determine the identity of suspicious to have been within Valeroso's immediate control.
individuals or to maintain the status quo momentarily while Thus, the search exceeded the bounds of what may
the police officers seek to obtain more information. be considered as an incident to a lawful arrest.
(Valmonte vs. De Villa, GR.83988, Sept. 29, 1989) (Valeroso v. Court of Appeals, G.R. No. 164815, Sept.
3, 2009)
Q: When may motorists and their vehicles passing
though checkpoints be stopped and extensively Q: Police Officer CA Mindaro posed as a buyer and
searched? bought marijuana from Jogie in her store.
Thereafter, he arrested Jogie without a warrant. The
A: While, as a rule, motorists and their vehicles other police officers seized a plastic container on the
passing though checkpoints may only be subjected to table inside the store from which Jogie took the
a routine inspection, vehicles may be stopped and marijuana. Six marijuana stocks were found in the
extensively searched when there is probable cause plastic container. Jogie was charged with selling
which justifies a reasonable belief among those at the marijuana. Is the warrantless seizure of marijuana
checkpoints that either the motorist is a law offender legal?
or the contents of the vehicle are or have been
instruments of some offense. (People v. Vinecario, A: Yes. The search being an incident to a lawful
G.R. No. 141137, Jan. 20, 2004) arrest, it needed no warrant for its validity. The
accused having been caught in flagrante delicto, the
Q: Jaime was a lady frisker whose duty is to frisk arresting officers were duty bound to apprehend her
departing passengers, employees, and crew and immediately. The warrantless search and seizure, as
check for weapons, bombs, prohibited drugs,

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an incident to a lawful arrest, may extend to include commit such crimes, and crimes or offenses
the premises under the immediate control of the committed in furtherance thereof, or in connection
accused. The accused may not successfully invoke the therewith constitute direct assaults against the State,
right against a warrantless search, even as regards are in the nature of continuing crimes.
the plastic container with dried marijuana leaves
found on the table in her store. (People vs. Salazar, Q: Can the place to be searched, as set out in the
G.R. No. 98060, Jan. 27, 1997) warrant be amplified or modified by the officers
personal knowledge of the premises or evidence
WARRANTLESS ARRESTS they adduce in support of their application for the
warrant?
Q: What are the instances of a valid warrantless
arrest? A: No. Such a change is proscribed by the
Constitution which requires a search warrant to
A: particularly describe the place to be searched;
1. In flagrante delicto The person to be arrested otherwise it would open the door to abuse of the
has either committed, is actually committing, or search process, and grant to officers executing the
is about to commit an offense in the presence of search that discretion which the Constitution has
the arresting office precisely removed from them.

2. Hot Pursuit When an offense has in fact just Q: Which court has the primary jurisdiction in
been committed and the arresting officer has issuing search warrants?
probable cause to believe, based on personal
knowledge of the facts and circumstances A: The RTC where the criminal case is pending or if no
indicating, that the person to be arrested has information has yet been filed, in RTC in the area/s
committed it contemplated. However, an RTC not having territorial
jurisdiction over the place to be searched may issue a
3. Escaped Prisoner or Detainee When the person search warrant where the filing of such is
to be arrested is a prisoner who has escaped necessitated and justified by compelling
from a penal establishment or place where he is considerations of urgency, subject, time, and place.
serving final judgment or temporarily confined
while his case is pending, or has escaped while Q: Does the Constitution limit only to judges the
being transferred from one confinement to authority to issue warrants of arrests?
another. (Sec. 5, Rule 113, Rules of Court)
A: No. The Commissioner of Immigration is also given,
4. Waiver When the right is waived by the person by legislative delegation, the power to issue warrants
arrested, provided he knew of such right and of arrests.
knowingly decided not to invoke it.
Note: Section 1 (3), Article III of the Constitution does not
Q: Is an application for bail considered as a waiver require judicial intervention in the execution of a final order
of the right to question an invalid arrest? of deportation issued in accordance with law. The
constitutional limitation contemplates an order of arrest in
the exercise of judicial power as a step preliminary or
A: No. An application for or admission to bail shall not incidental to prosecution or proceedings for a given offense
bar the accused from challenging the validity of his or administrative action, not as a measure indispensable to
arrest or the legality of the warrant issued therefor, carry out a valid decision by a competent official, such as a
or from assailing the regularity or questioning the legal order of deportation, issued by the Commissioner of
absence of a preliminary investigation of the charge Immigration, in pursuance of a valid legislation. (Morano vs.
against him, provided that he raises them before Vivo, G.R. No. L-22196, June 30, 1967)
entering his plea (Sec. 26, Rule 114, Rules of Court).
Q: What is the nature of a search warrant
Note: The waiver is limited to invalid arrest and does not proceeding?
extend to illegal search.
A: It is neither a criminal action nor a commencement
Q: Are there any other instances where a peace of a prosecution. It is solely for the possession of
officer can validly conduct a warrantless arrest? personal property. (United Laboratories, Inc. v. Isip,
G.R. No. 163858, June 28, 2005)
A: Yes, in cases of continuing offenses. The crimes of
rebellion, subversion, conspiracy or proposal to

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ADMINISTRATIVE ARREST assassination of public officials because of their


office, or who advises, advocates, or teaches the
Q: When is there an administrative arrest? unlawful destruction of property, or who is a
member of or affiliated with any organization
A: There is an administrative arrest as an incident to entertaining, advocating or teaching such
deportation proceedings. doctrines, or who in any manner whatsoever
lends assistance, financial or otherwise, to the
Q: Who are the persons that may be validly arrested dissemination of such doctrines;
in a deportation proceeding? 9. Any alien who commits any of the acts described
in sections forty-five of this Act, independent of
A: The following aliens shall be arrested upon the criminal action which may be brought against
warrant of the Commissioner of Immigration or of him: Provided, that in the case of alien who, for
any other officer designated by him for the purpose any reason, is convicted and sentenced to suffer
and deported upon the warrant of the Commissioner both imprisonment and deportation, said alien
of Immigration after a determination by the Board of shall first serve the entire period of his
Commissioners of the existence of the ground for imprisonment before he is actually deported:
deportation as charges against the alien. Provided, however, that the imprisonment may
1. Any alien who enters the Philippines after the be waived by the Commissioner of Immigration
effective date of this Act by means of false and with the consent of the Department Head, and
misleading statements or without inspection and upon payment by the alien concerned of such
admission by the immigration authorities at a amount as the Commissioner may fix and
designated port of entry or at any place other approved by the Department Head; [Paragraph
than at a designated port of entry; [As amended added pursuant to Republic Act No. 144, Sec. 3]
by Republic Act No. 503, Sec. 13] 10. Any alien who, at any time within five years after
2. Any alien who enters the Philippines after the entry, shall have been convicted of violating the
effective date of this Act, who was not lawfully provisions of the Philippine Commonwealth Act
admissible at the time of entry; Numbered Six hundred and fifty-three, otherwise
3. Any alien who, after the effective date of this known as the Philippine Alien Registration Act of
Act, is convicted in the Philippines and sentences 1941**(now Alien Registration Act of 1950,
for a term of one year or more for a crime Republic Act No. 562, as amended) or who, at
involving moral turpitude committed within five any time after entry, shall have been convicted
years after his entry to the Philippines, or who, at more than once of violating the provisions of the
any time after such entry, is so convicted and same Act; [Added pursuant to Republic Act No.
sentenced more than once; 503, Sec. 13]
4. Any alien who is convicted and sentenced for a 11. Any alien who engages in profiteering, hoarding,
violation of the law governing prohibited drugs; or black-marketing, independent of any criminal
[As amended by Republic Act No. 503, Sec. 13] action which may be brought against him;
[Added pursuant to Republic Act No. 503, Sec.
5. Any alien who practices prostitution or is an
13]
inmate of a house of prostitution or is connected
with the management of a house of prostitution, 12. Any alien who is convicted of any offense
or is a procurer; penalized under Commonwealth Act Numbered
Four hundred and seventy-three, otherwise
6. Any alien who becomes a public charge within
known as the Revised Naturalization Laws of the
five years after entry from causes not
Philippines, or any law relating to acquisition of
affirmatively shown to have arisen subsequent to
Philippine citizenship; [Added pursuant to
entry;
Republic Act No. 503, Sec. 13]
7. Any alien who remains in the Philippines in
13. Any alien who defrauds his creditor by
violation of any limitation or condition under
absconding or alienating properties to prevent
which he was admitted as a non-immigrant;
them from being attached or executed. [Added
8. Any alien who believes in, advises, advocates or pursuant to Republic Act No. 503, Sec. 13]
teaches the overthrow by force and violence of (Philippine Immigration Act of 1940)
the Government of the Philippines, or of
constituted law and authority or who disbelieves
in or is opposed to organized government, or
who advises, advocates or teaches the assault or

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DRUG, ALCOHOL, AND BLOOD TESTS violates the rights to privacy and against self-
incrimination of an accused. Decide.
Q: Is a law requiring mandatory drug testing for
students of secondary and tertiary schools A: The Court finds the situation entirely different in
unconstitutional? the case of persons charged before the public
prosecutors office with criminal offenses punishable
A: No. It is within the prerogative of educational with imprisonment. The operative concepts in the
institutions to require, as a condition for admission, mandatory drug testing are randomness and
compliance with reasonable school rules and suspicionless. In the case of persons charged with a
regulations and policies. To be sure, the right to crime before the prosecutors office, a mandatory
enroll is not absolute; it is subject to fair, reasonable, drug testing can never be random or suspicionless.
and equitable requirements. In sum: The ideas of randomness and being suspicionless are
1. Schools and their administrators stand in antithetical to their being made defendants in a
loco parentis with respect to their students; criminal complaint. They are not randomly picked;
2. Minor students have contextually fewer neither are they beyond suspicion. When persons
rights than an adult, and are subject to the suspected of committing a crime are charged, they
custody and supervision of their parents, are singled out and are impleaded against their will.
guardians, and schools; The persons thus charged, by the bare fact of being
3. Schools acting in loco parentis, have a duty hauled before the prosecutors office and peaceably
to safeguard the health and well-being of submitting themselves to drug testing, if that be the
their students and may adopt such measures case, do not necessarily consent to the procedure, let
as may reasonably be necessary to discharge alone waive their right to privacy. To impose
such duty; and mandatory drug testing on the accused is a blatant
4. Schools have the right to impose conditions attempt to harness a medical test as a tool for
on applicants for admission that are fair, just criminal prosecution, contrary to the stated
and non-discriminatory. (SJS v. DDB, G.R. No. objectives of R.A. 9165. Drug testing in this case
157870, Nov. 3, 2008) would violate a persons right to privacy guaranteed
under Sec. 2, Art. III of the Constitution. Worse still,
Q: Is a law requiring mandatory drug testing for the accused persons are veritably forced to
officers and employees of public and private offices incriminate themselves. (SJS v. DDB, G.R. No. 157870,
unconstitutional? Nov. 3, 2008)

A: No. As the warrantless clause of Sec. 2, Art. III of RIGHT TO PRIVACY IN COMMUNICATION AND
the Constitution is couched and as has been held, CORRESPONDENCE
reasonableness is the touchstone of the validity of
a government search or intrusion. And whether a PRIVATE AND PUBLIC COMMUNICATIONS
search at issue hews to the reasonableness standard
is judged by the balancing of the government- Q: The general rule is that the right to privacy of
mandated intrusion on the individuals privacy communication and correspondence is inviolable.
interest against the promotion of some compelling What are the exceptions?
state interest. In the criminal context, reasonableness
requires showing probable cause to be personally A:
determined by a judge. Given that the drug-testing 1. By lawful order of the court;
policy for employeesand students for that matter 2. Public safety or public order as prescribed by
under R.A. 9165 is in the nature of administrative law
search needing what was referred to in Veronia case
as swift and informal procedures, the probable Note: Any evidence in violation of this or the
cause standard is not required or even practicable. preceding section shall be inadmissible for any
(SJS v. DDB and PDEA, G.R. No. 157870, Nov. 3, 2008) purpose in any proceedings.

Q: R.A. 9165 requires mandatory drug testing for INTRUSION, WHEN ALLOWED
persons charged before the prosecutors office with
criminal offenses punishable with 6 years and 1 day Q: Is a regulation mandating the opening of mail or
imprisonment. Petitioner SJS questions the correspondence of detainees violative of the
constitutionality of the law on the ground that it constitutional right to privacy?

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A: No. There is no longer a distinction between an 5. Rebellion (conspiracy and proposal and
inmate and a detainee with regard to the reasonable inciting to commit included)
expectation of privacy inside his cell. The curtailment 6. Sedition (conspiracy, inciting included)
of certain rights is necessary to accommodate 7. Kidnapping
institutional needs and objectives of prison facilities, 8. Violations of C.A. No. 616 (punishing
primarily internal security. As long as the letters are espionage and other offenses against
not confidential communication between the national security)
detainee and his lawyer the detention officials may
read them. But if the letters are marked confidential Q: Is the use of telephone extension a violation of
communication between detainee and lawyer the R.A. 4200 (Anti-Wire Tapping Law)?
officer must not read them but only inspect them in
the presence of detainees. A law is not needed before A: No. The use of a telephone extension to overhear a
an executive officer may intrude into the rights of private conversation is neither among those devices,
privacy of a detainee or a prisoner. By the very fact of nor considered as a similar device, prohibited under
their detention, they have diminished expectations of the law. (Gaanan v. IAC, G.R. No.L-69809 Oct. 16,
privacy rights. (Alejano vs. Cabuay, G.R. No. 160792,Aug. 1986)
25, 2005)
Note: Anti-Wiretapping Act only protects letters, messages,
Q: What does the anti-wiretapping act (RA 4200) telephone calls, telegrams and the like.
prohibit?
The law does not distinguish between a party to the private
communication or a third person. Hence, both a party and a
A: It prohibits any person, not being authorized by all
third person could be held liable under R.A. 4200 if they
the parties to any private communication or spoken commit any of the prohibited acts under R.A. 4200.
word, to tap any wire or cable, or by using any other (Ramirez v. CA, G.R. No. 93833 Sept. 28, 1995)
device or arrangement, to secretly overhear,
intercept, or record such communication or spoken Q: Is the tape recording of a telephone conversation
word by using a device commonly known as a containing a persons admission admissible in
dictaphone or dictagraph or dictaphone or walkie- evidence? Why?
talkie or tape recorder, or however otherwise
described: A: No. The tape-recorded conversation is not
admissible in evidence. R.A. 4200 makes the tape-
It also prohibits any person, be he a participant or not recording of a telephone conversation done without
in the act or acts penalized in the next preceding the authorization of all the parties to the
sentence, to knowingly possess any tape record, wire conversation inadmissible in evidence. In addition,
record, disc record, or any other such record, or the taping of the conversation violated the guarantee
copies thereof, of any communication or spoken of privacy of communications enunciated in Section
word secured either before or after the effective date 3, Article III of the Constitution.(Salcedo-Ortanez v.
of this Act in the manner prohibited by this law; or to CA, G.R. No. 110662, Aug. 4, 1994)
replay the same for any other person or persons; or
to communicate the contents thereof, either verbally Q: Are letters of a husbands paramour kept inside
or in writing, or to furnish transcriptions thereof, the husbands drawer, presented by the wife in the
whether complete or partial, to any other person: proceeding for legal separation, admissible in
Provided, That the use of such record or any copies evidence?
thereof as evidence in any civil, criminal investigation
or trial of offenses mentioned in section 3 hereof, A: No, because marriage does not divest one of
shall not be covered by this prohibition. his/her right to privacy of communication. (Zulueta v.
CA, G.R. No. 107383, Feb. 20, 1996)
Under Section 3 of RA 4200, a peace officer, who is
authorized by a written order of the Court, may Q: What does the exclusionary rule state?
execute any of the acts declared to be unlawful in the
said law in cases involving the crimes of: A: Any evidence obtained in violation of the
1. Treason Constitution shall be inadmissible for any purpose in
2. Espionage any proceeding. However, in the absence of
3. Provoking war and disloyalty in case of war governmental interference, the protection against
4. Piracy and mutiny in the high seas unreasonable search and seizure cannot be extended

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to acts committed by private individuals. (People v. FREEDOM OF EXPRESSION


Marti, G.R. No. 78109. Jan. 18,1991)
Q: What is the concept of freedom of expression?
WRIT OF HABEAS DATA
A: No law shall be passed abridging the freedom of
Q: What is the writ of habeas data? speech, of expression, or of the press, or of the right
of the people peaceably to assemble and petition the
A: It is a remedy available to any person whose right government for redress of grievances.
to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public Q: What is the scope of protected freedom of
official or employee, or of a private individual or expression under the Constitution?
entity engaged in the gathering, collecting or storing
of data or information regarding the person, family, A:
home and correspondence of the aggrieved 1. Freedom of speech
party.(Sec. 1, The Rule on the Writ of Habeas Data, A. 2. Freedom of the press
M. No. 08-1-16-SC, Jan. 22, 2008) 3. Right of assembly and to petition the
government for redress of grievances
Q: What are the reliefs that may be obtained in the 4. Right to form associations or societies not
petition for issuance of writ of habeas data? contrary to law
5. Freedom of religion
A: The reliefs may include the updating, rectification, 6. Right to access to information on matters of
suppression or destruction of the database or public concern.
information or files kept by the respondent and in
case of threats of the unlawful act, the relief may Q: What are considered protected speech?
include a prayer for an order enjoining the act
complained of. A general prayer for other reliefs that A: Protected speech includes every form of
are just and equitable under the circumstances is also expression, whether oral, written, tape or disc
allowed. recorded. It includes motion pictures as well as what
is known as symbolic speech such as the wearing of
Q: May a writ of habeas data be issued to protect an armband as a symbol of protest. Peaceful
purely property or commercial concerns? picketing has also been included within the meaning
of speech.
A: No. It bears reiteration that like the writ of
amparo, habeas data was conceived as a response, Q: Does a violation of any law justify the
given the lack of effective and available remedies, to suppression of exercise of freedom of speech and of
address the extraordinary rise in the number of the press?
killings and enforced disappearances. Its intent is to
address violations of or threats to the rights to life, A: Not every violation of a law will justify
liberty or security as a remedy independently from straitjacketing the exercise of freedom of speech and
those provided under prevailing rules. Writs of of the press. There are laws of great significance but
amparo and habeas data will not issue to protect their violation, by itself and without more, cannot
purely property or commercial concerns nor when support suppression of free speech and free press.
the grounds invoked in support of the petitions The totality of the injurious effects of the violation to
therefore are vague or doubtful. Employment private and public interest must be calibrated in light
constitutes a property right under the context of the of the preferred status accorded by the Constitution
due process clause of the constitution. It is evident and by related international covenants protecting
that respondents reservations on the real reasons for freedom of speech and of the press. The need to
her transfer-a legitimate concern respecting the prevent the violation of a law cannot per se trump
terms and conditions of ones employment- are what the exercise of free speech and free press, a
prompted her to adopt the extraordinary remedy of preferred right whose breach can lead to greater
habeas data. (Manila Electric Company vs. Lim, GR. evils. (Francisco Chavez v. Raul M. Gonzales, G.R. No.
No. 184769, Oct. 5, 2010) 168338, Feb. 15, 2008)

Q. What is the concept behind the provision?

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A. Consistent with its intended role in society, it censorship. Other ways include requiring a
means that the people are kept from any undue permit or license for the distribution of media
interference from the government in their thoughts and penalizing dissemination of copies made
and words. The guarantee basically flows from the without it, and requiring the payment of a fee ot
philosophy that the authorities do not necessarily tax, imposed either on the publisher or on the
know what is best for the people. (R.B. Gorospe, distributor, with the intent to limit or restrict
Constitutional Law: Notes And Readings On The Bill Of circulation. These mode of interfering with the
Rights, Citizenship And Suffrage, 2004) freedom to circulate have been constantly
stricken down as unreasonable limitations on
Q: What are the limitations of freedom of press freedom (Chavez v. Gonzales G.R. No.
expression? 168338, Feb. 15, 2008).

A: It should be exercised within the bounds of laws Note: There need not be total suppression; even restriction
enacted for the promotion of social interests and the of circulation constitutes censorship.
protection of other equally important individual
rights such as: Q: Can the live TV coverage of a trial pursuant to the
1. Laws against obscenity, libel and slander right of the public to information and the free press
(contrary to public policy) be prohibited?
2. Right to privacy of an individual
3. Right of state/government to be protected A: Yes. Live TV coverage may be prohibited since the
from seditious attacks right of the accused must prevail over the right of the
4. Legislative immunities public to information and freedom of the press.(Re:
5. Fraudulent matters Request for Radio-TV Coverage of the Trial in the
6. Advocacy of imminent lawless conducts Sandiganbayan of the Plunder Cases Against the
7. Fighting words Former President Joseph E. Estrada, A.M. No. 01-4-03-
8. Guarantee implies only the right to reach a SC, June 29, 2001)
willing audience but not the right to compel
others to listen, see or read Q: Is the right of the accused to a fair trial
incompatible to free press?
Q: What are the four aspects of freedom of speech
and press? A: No. Respecting the possible influence of media
coverage on the impartiality of trial court judges, the
A: prejudicial publicity insofar as it undermines the right
1. Freedom from censorship or prior restraint see to a fair trial must pass the totality of circumstances
discussion on prior restraint. test, as applied in People v. Teehankee, Jr. (2011) and
2. Freedom from subsequent punishment to Estrada v. Desierto (2011), that the right of an
publication see discussion on subsequent accused to a fair trial is not incompatible to a free
punishment. press, that pervasive publicity is not per se prejudicial
3. Freedom of access to information regarding to the right of an accused to a fair trial, and that there
matters of public interest official papers, must be allegation and proof of the impaired capacity
reports and documents, unless held confidential of a judge to render a bias-free decision. Mere fear
and secret by competent authority in the public of possible undue influence is not tantamount to
interest, are public records. As such, they are actual prejudice resulting in the deprivation of the
open and subject to regulation, to the scrutiny of right to a fair trial.(In Re: Petition for Radio and
the inquiring reporter or editor. Information Television Coverage of the Multiple Murder Cases
obtained confidentially may be printed without against Maguindanao Governor Zaldy Ampatuan, et
specification of the source; and that source is al., A.M. No. 10-11-5-SC, June 14, 2011)
closed to official inquiry, unless the revelation is
deemed by the courts, or by a House or PRIOR RESTRAINT (CENSORSHIP)
committee of the Congress, to be vital to the
security of the State. Q: What is the first prohibition of the free speech
4. Freedom of circulation refers to the and press clause?
unhampered distribution of newspapers and
other media among customers and among the A: It is the prohibition of prior restraint. Prior
general public. It may be interfered with in Restraint means official government restrictions on
several ways. The most important of these is the press or other forms of expression in advance of
actual publication or dissemination. (Bernas, The

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1987 Philippine Constitution A Comprehensive Q. Is freedom from subsequent punishment


Reviewer, 2006) absolute?

Note: Freedom from prior restraint is largely freedom from A: No, it may be properly regulated in the interest of
government censorship of publications, whatever the form the public. The State may validly impose penal and/or
of censorship, and regardless of whether it is wielded by administrative sanctions such as in the following:
the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that 1. Libel a public and malicious imputation of a
required approval of a proposal to publish; licensing or crime, vice or defect, real or imaginary or any act
permits as prerequisites to publication including the omission, status tending to cause dishonor,
payment of license taxes for the privilege to publish; and discredit or contempt of a natural or judicial
even injunctions against publication. Even the closure of person, or blacken the memory of one who is
the business and printing offices of certain newspapers, dead (Art 353, Revised Penal Code)
resulting in the discontinuation of their printing and 2. Obscenity in Pita v Court of Appeals, the
publication, are deemed as previous restraint or
Supreme Court declared that the determination
censorship. Any law or official that requires some form of
permission to be had before publication can be made,
of what is obscene is a judicial function.
commits an infringement of the constitutional right, and 3. Criticism of Official Conduct In New York Times
remedy can be had at the courts (Chavez v. Gonzales, G.R. v. Sullivan, 376 US 254 (1964), the constitutional
No. 168338, Feb. 15, 2008). guarantee requires a federal rule that prohibits a
public official from recovering damages for a
Q: Is the prohibition of prior restraint absolute? defamatory falsehood relating to his official
conduct unless he proves that the statement was
A: No. There are exceptions to the rule. In Chavez v. made with actual malice.
Gonzales G.R. No. 168338, Feb. 15, 2008), Justice 4. Rights of students to free speech in school
Carpio in his concurring opinion named four premises not absolute the school cannot
exceptions: suspend or expel a student solely on the basis of
1. Pornography the articles he has written except when such
2. False or Misleading Advertisement article materially disrupts class work or involves
3. Advocacy of Imminent Lawless Actions substantial disorder or invasion of rights of
4. Danger to National Security others.(Miriam College Foundation v. CA, GR
127930, Dec. 15, 2000)
Near v. Minnesota, 283 US 697 (1931) adds the
following to the enumeration: Q: Discuss the Doctrine of Fair Comment.
1. When a nation is at war, many things that
might be said in time of peace are such a A: The doctrine provides that while as a general rule,
hindrance to its effort that their utterance every discreditable public imputation is false because
will not be endured so long as men fight and every man is presumed innocent, thus every false
that no court could regard them as imputation is deemed malicious, as an exception,
protected by any constitutional right. when the discreditable imputation is directed against
2. The primary requirements of decency may a public person in his public capacity, such is not
be enforced against obscene publications. necessarily actionable. For it to be actionable, it must
3. The security of community life may be be shown that either there is a false allegation of fact
protected against incitements to acts of or comment based on a false supposition. However, if
violence and the overthrow by force of the comment is an expression of opinion, based on
orderly government. established facts; it is immaterial whether the opinion
happens to be mistaken, as long as it might
SUBSEQUENT PUNISHMENT reasonably be inferred from facts. (Borjal v. CA, G.R.
No. 126466, Jan. 14, 1999)
Q. What is the second basic prohibition of the free
speech and press clause? Q: A national daily newspaper carried an exclusive
report stating that Senator Ryan Cristopher received
A: The free speech and press clause also prohibits a house and lot located at YY Street, Makati, in
systems of subsequent punishment which have the consideration for his vote to cutcigarette taxes by
effect of unduly curtailing expression. (Bernas, The 50%. The Senator sued the newspaper, its reporter,
1987 Philippine Constitution A Comprehensive editor and publisher for libel, claiming the report
Reviewer, 2006, p.64) was completely false and malicious. According to
the Senator, there is no YY Street in Makati, and the

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tax cut was only 20%. He claimed one million pesos these freedoms are not absolute. For, if left
in damages. The defendants denied "actual malice," unbridled, they have the tendency to be abused and
claiming privileged communication and absolute can translate to licenses, which could lead to disorder
freedom of the press to report on public officials and and anarchy. Bernadette crossed the line, as hers are
matters of public concern. If there was any error, baseless scurrilous attacks which demonstrate
the newspaper said it would publish the correction nothing but an abuse of press freedom. They leave
promptly. Is there "actual malice" in the no redeeming value in furtherance of freedom of the
newspapers reportage? How is "actual malice" press. They do nothing but damage the integrity of
defined? Are the defendants liable for damages? the High Court, undermine the faith and confidence
of the people in the judiciary, and threaten the
A: Since Senator Ryan Cristopher is a public person doctrine of judicial independence. (In Re: Allegations
and the questioned imputation is directed against Contained in the Columns of Mr. Amado P. Macasaet,
him in his public capacity, in this case actual malice A.M. No. 07-09-13-SC, Aug. 8, 2008)
means the statement was made with knowledge that
it was false or with reckless disregard of whether it CONTENT-BASED &
was false or not. Since there is no proof that the CONTENT-NEUTRAL REGULATION
report was published with knowledge that it is false
or with reckless disregard of whether it was false or Q: Distinguish content-neutral regulation from
not, the defendants are not liable for damage. (Borjal content-based restraint or censorship.
v. CA, G.R. No. 126466, Jan. 14, 1999)
A:
Q: Is the Borjal doctrine applicable in a case where CONTENT-NEUTRAL CONTENT-BASED
the allegations against a public official were false REGULATION RESTRAINT
and that the journalist did not exert effort to verify Merely concerned with The restriction is based on
the information before publishing his articles? the incidents of the the subject matter of the
speech, or one that utterance or speech. The
A: No. Borjal may have expanded the protection of merely controls the cast of the restriction
qualified privileged communication beyond the time, place or manner, determines the test by
instances given in Art. 354 of the RPC, but this and under well defined which the challenged act is
expansion does not cover such a case. The expansion standards. assayed with.
speaks of "fair commentaries on matters of public
interest." While Borjal places fair commentaries No presumption of There is presumption of
within the scope of qualified privileged unconstitutionality unconstitutionality
communication, the mere fact that the subject of the
Note: The burden of proof to
article is a public figure or a matter of public interest
overcome the presumption of
does not automatically exclude the author from unconstitutionality is with the
liability. His articles cannot even be considered as government.
qualified privileged communication under the second Test to be used: Test to be used: Clear and
paragraph of Art. 354 of the RPC which exempts from Intermediate Approach Present Danger Test
the presumption of malice a fair and true report. Test
Good faith is lacking. (Tulfo v. People, G.R. No.
161032, Sept. 16, 2008) Q: What is the Intermediate Approach Test?

Q: Bernadette Faustine penned several articles in A: When the speech restraints take the form of a
Malaya newspaper regarding alleged bribery content-neutral regulation, only a substantial
incidents in the Supreme Court and characterizing governmental interest is required for its validity.
the justices as thieves and a basket of rotten Because regulations of this type are not designed to
apples. The Court En Banc required Bernadette to suppress any particular message, they are not subject
explain why no sanction should be imposed on her to the strictest form of judicial scrutiny but an
for indirect contempt of court. Is the freedom of the intermediate approachsomewhere between the
press violated by judicial independence and mere rationality that is required of any other law and
maintaining the dignity of the judiciary? Decide. the compelling interest standard applied to content-
based restrictions. The test is called intermediate
A: No. While freedom of speech, of expression and of because the Court will not merely rubberstamp the
the press are at the core of civil liberties and have to validity of a law but also require that the restrictions
be protected at all costs for the sake of democracy, be narrowly-tailored to promote an important or

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significant governmental interest that is unrelated to wants to prevent is the airing of a tape recording in
the suppression of expression (Chavez v. Gonzales, alleged violation of the anti-wiretapping law.
G.R. No. 168338, Feb. 15, 2008).
The evidence falls short of satisfying the clear and
Q: What is the Clear and Present Danger Test? present danger test. Firstly, the various statements
of the Press Secretary obfuscate the identity of the
A: The government must also show the type of harm voices in the tape recording. Secondly, the integrity of
the speech sought to be restrained would bring the taped conversation is also suspect. The Press
about especially the gravity and the imminence of Secretary showed to the public two versions, one
the threatened harm otherwise the prior restraint supposed to be a complete version and the other,
will be invalid. Prior restraint on speech based on its an altered version. Thirdly, the evidence on the
content cannot be justified by hypothetical fears, whos and the hows of the wiretapping act is
but only by showing a substantive and imminent evil ambivalent, especially considering the tapes
that has taken the life of a reality already on ground. different versions. The identity of the wire-tappers,
As formulated, the question in every case is whether the manner of its commission and other related and
the words used are used in such circumstances and relevant proofs are some of the invisibles of this
are of such a nature as to create a clear and case. Fourthly, given all these unsettled facets of the
present danger that they will bring about the tape, it is even arguable whether its airing would
substantive evils that Congress has a right to prevent. violate the anti-wiretapping law. There is no showing
It is a question of proximity and degree. The that the feared violation of the anti-wiretapping law
regulation which restricts the speech content must clearly endangers the national security of the State.
also serve an important or substantial government (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)
interest, which is unrelated to the suppression of free
expression (Chavez v. Gonzales, G.R. No. 168338, Feb. FACIAL CHALLENGES AND
15, 2008). OVERBREADTH DOCTRINE

Q: The NTC issued a warning that that the Q: What is a Facial Challenge?
continuous airing or broadcast by radio and
television stations of the an alleged wiretapped A. A facial challenge is a challenge to a statute in
conversation involving the President allegedly fixing court, in which the plaintiff alleges that the legislation
votes in the 2004 national elections is a continuing is always, and under all circumstances,
violation of the Anti-Wiretapping Law and shall be unconstitutional, and therefore void.
just cause for the suspension, revocation and/or
cancellation of the licenses or authorizations issued Note: Facial challenge to a statute is allowed only when it
to the said companies. Were the rights to freedom operates in the area of freedom of expression. Invalidation
of expression and of the press, and the right of the of the statute on its face, rather than as applied, is
people to information on matters of public concern permitted in the interest of preventing a chilling effect on
violated? freedom of expression.(Separate opinion of Justice
Mendoza in Cruz v. Secretary of Environment and Natural
Resources, GR. 135385, Dec. 6, 2000)
A: Yes, said rights were violated applying the clear
and present danger test. The challenged acts need to
Q: How is "facial" challenge different from "as-
be subjected to the clear and present danger rule, as
applied" challenge?
they are content-based restrictions. The acts of NTC
and the DOJ Sec. focused solely on but one objecta
A: Distinguished from an as-applied challenge which
specific content fixed as these were on the alleged
considers only extant facts affecting real litigants,
taped conversations between the President and a
a facial invalidation is an examination of the entire
COMELEC official. Undoubtedly these did not merely
law, pinpointing its flaws and defects, not only on the
provide regulations as to the time, place or manner of
basis of its actual operation to the parties, but also on
the dissemination of speech or expression.
the assumption or prediction that its very existence
may cause others not before the court to refrain from
A governmental action that restricts freedom of
constitutionally protected speech or
speech or of the press based on content is given
activities.(Southern Hemisphere Engagement
the strictest scrutiny, with the government having
Network, Inc. v. Anti-Terrorism Council, G.R. No.
the burden of overcoming the presumed
178552, Oct. 5, 2010)
unconstitutionality by the clear and present danger
rule. It appears that the great evil which government
Q: Are facial challenges allowed in penal statutes?

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A: No. Criminal statutes have general in Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552,
terrorem effect resulting from their very existence, Oct. 5, 2010)
and, if facial challenge is allowed for this reason
alone, the State may well be prevented from enacting TESTS
laws against socially harmful conduct. In the area of
criminal law, the law cannot take chances as in the Q: What are the tests for valid governmental
area of free speech.(KMU v. Ermita, G.R. No. 17855, interference to freedom of expression?
Oct. 5, 2010
A:
Note: A litigant cannot thus successfully mount a facial 1. Clear and Present Danger test
challenge against a criminal statute on either vagueness or
overbreadth grounds. Question: Whether the words are used in such
circumstances and are of such a nature as to create a
The rule established in our jurisdiction is, only statutes on clear and present danger that they will bring about
free speech, religious freedom, and other fundamental
the substantive evils that Congress has a right to
rights may be facially challenged. (Southern Hemisphere
Engagement Network, Inc. v. Anti-Terrorism Council, G.R. prevent. It is a question of proximity and degree
No. 178552, Oct. 5, 2010) (Schenck v. US, 249 US 47, 1919)

Q: What is the Overbreadth Doctrine? Emphasis: The danger created must not only be clear
and present but also traceable to the ideas
A: The overbreadth doctrine permits a party to expressed. (Gonzales v. COMELEC, G.R. No. L-27833,
challenge the validity of a statute even though as April 18, 1969)
applied to him it is not unconstitutional but it might
be if applied to others not before the Court whose Note: This test has been adopted by our SC, and is most
applied to cases involving freedom of expression.
activities are constitutionally protected. (Separate
opinion of Justice Mendoza in Cruz v. Secretary of
2. Dangerous Tendency test
Environment and Natural Resources, GR. 135385, Dec.
6, 2000) It is a type of facial challenge that prohibits
Question: Whether the speech restrained has a
the government from achieving its purpose by means
rational tendency to create the danger apprehended,
that sweep unnecessarily broadly, reaching
be it far or remote, thus government restriction
constitutionally protected as well as unprotected
would then be allowed. It is not necessary though
activity.
that evil is actually created for mere tendency
Note: The application of the overbreadth doctrine is limited towards the evil is enough.
to a facial kind of challenge
Emphasis: Nature of the circumstances under which
The most distinctive feature of the overbreadth technique the speech is uttered, though the speech per se may
is that it marks an exception to some of the usual rules of not be dangerous.
constitutional litigation. Ordinarily, a particular litigant
claims that a statute is unconstitutional as applied to him or 3. Grave-but-Improbable Danger test
her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its
Question: Whether the gravity of the evil, discounted
improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of by its improbability, justifies such an invasion of free
the third parties and can only assert their own interests. In speech as is necessary to avoid the danger (Dennis v.
overbreadth analysis, those rules give way; challenges are US, 341 US 494, 1951)
permitted to raise the rights of third parties; and the court
invalidates the entire statute on its face, not merely as Note: This test was meant to supplant the clear and present
applied for so that the overbroad law becomes danger test.
unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates court to depart 4. Balancing of interest test
from the normal adjudicatory rules is the concern with the
chilling, deterrent effect of the overbroad statute on third Question: which of the two conflicting interests (not
parties not courageous enough to bring suit.The Court
involving national security crimes) demands the
assumes that an overbroad laws very existence may cause
others not before the court to refrain from constitutionally greater protection under the particular circumstances
protected speech or expression. An overbreadth ruling is presented:
designed to remove that deterrent effect on the speech of a. When particular conduct is regulated in the
those third parties. .(Southern Hemisphere Engagement interest of public order

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b. And the regulation results in an indirect, in everyday use. As such, the welfare of children and
conditional and partial abridgement of speech the States mandate to protect and care for them,
(Gonzales v. COMELEC, G.R. No. L-27833, Apr. 18, as parens patriae, constitute a substantial and
1969). compelling government interest in regulating
Sorianos utterances in TV broadcast.
5. OBrien test
Q: COMELEC promulgated Resolution No. 2772
Question: in situations when speech and non- stating that the Commission shall have free print
speech elements are combined in the same course space in at least one newspaper as COMELEC
of conduct, whether there is a sufficiently important Space. This ad space will be used by candidates for
governmental interest that warrants regulating the their campaign or platforms of government, and for
non-speech element, incidentally limiting the the Commissions dissemination of vital
speech element. information. Moreover, COMELEC released a letter-
directive ordering the different newspapers to
Note: A government regulation is valid if: comply with the said resolution. The petitioner
a. It is within the constitutional power of the contended that COMELEC violated the prohibition
government;
imposed by the Constitution against the taking of
b. In furtherance of an important or substantial
governmental interest; properties without just compensation. On the other
c. Governmental interest is unrelated to the hand, COMELEC asserts their directive is not
suppression of free expression; and mandatory and compelling and that they only asked
d. The incidental restriction on the freedom is for a donation. Moreover, they aver that even if the
essential to the furtherance of that interest. order is mandatory, it would still be valid through
(US v. OBrien, 391 US 367, 1968; SWS v. the use of police power. Is COMELECs action
COMELEC, G.R. 147571, May 5, 2001) constitutional through the exercise of police power?

6. Direct Incitement test A: No. To compel print media companies to donate


"Comelec-space, amounts to "taking" of private
Question: What words did a person utter and what is personal property for public use or purposes. The
the likely result of such utterance taking of private property for public use is, of course,
authorized by the Constitution, but not without
Emphasis: The very words uttered, and their ability to payment of "just compensation. And apparently the
directly incite or produce imminent lawless action. necessity of paying compensation for "Comelec
space" is precisely what is sought to be avoided by
Note: It criticizes the clear and present danger test for the Commission. As such, it does not constitute a
being too dependent on the specific circumstances of each
valid exercise of the power of eminent domain.
case.

Also, the resolution is a blunt and heavy instrument


STATE REGULATION OF DIFFERENT
that purports, without a showing of existence of a
TYPES OF MASS MEDIA
national emergency or other imperious public
necessity, indiscriminately and without regard to the
Q: Can an offensive and obscene language uttered in
individual business condition of particular
a prime-time television broadcast which was easily
newspapers or magazines located in differing parts of
accessible to the children be reasonably curtailed
the country, to take private property of newspaper or
and validly restrained?
magazine publishers. No attempt was made to
demonstrate that a real and palpable or urgent
A: Yes. In Soriano v. MTRCB, G.R. No. 165636, Apr. 29,
necessity for the taking of print space confronted the
2009, the Court, applying the balancing of interest
Comelec and that the resolution was itself the only
doctrine, ruled that the governments interest to
reasonable and calibrated response to such necessity
protect and promote the interests and welfare of the
available to the Comelec. Thus, it does not constitute
children adequately buttresses the reasonable
a valid exercise of the police power of the State.
curtailment and valid restraint on petitioners prayer
(Philippine Press Institute, Inc. v. COMELEC, G.R. No.
to continue as program host of Ang Dating
L-119694, May 22, 1995)
Daan during the suspension period. Sorianos
offensive and obscene language uttered on prime-
Q: Petitioners challenge the validity of Sec. 92, B.P.
time television broadcast, without doubt, was easily
881 which provides: COMELEC Time The
accessible to the children. His statements could have
Commission shall procure radio and television time
exposed children to a language that is unacceptable

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to be known as the COMELEC Time which shall be Constitution of the Republic of the Philippines
allocated equally and impartially among the Comprehensive Reviewer 2006)
candidates within the area of coverage of all radio
and television stations. For this purpose, the Q: What must be shown so that commercial speech
franchise of all radio broadcasting and television will be protected?
stations are hereby amended so as to provide radio
or television time, free of charge, during the period A: To enjoy protection, commercial speech:
of campaign. 1. Must not be false or misleading (Friedman v.
Rogers, 440 US 1, 1979)
Petitioner contends that while Section 90 of the 2. Should not propose an illegal
same law requires COMELEC to procure print space transaction(Pittsburgh Press Co. v Human
in newspapers and magazines with payment, Relations Commissions, 413 US 376, 1973)
Section 92 provides that air time shall be procured
by COMELEC free of charge. Thus, it contends that Note: However, even truthful and lawful commercial
Section 92 singles out radio and television stations speech maybe regulated if (1) government has a substantial
to provide free air time. Is Section 92 valid? interest to protect; (2) the regulation directly advances that
interest; and (3) it is not more than extensive than is
necessary to protect that interest. (Central Hudson Gas &
A: Yes. All broadcasting, whether by radio or by
Electric Corp v. Public Service Commission of NY, 447 US 557
television stations, is licensed by the government. (1980))
Airwave frequencies have to be allocated as there are
more individuals who want to broadcast than there PRIVATE V. GOVERNMENT SPEECH
are frequencies to assign. A franchise is thus a
privilege subject, among other things, to amended by Q: Differentiate Government Speech From Private
Congress in accordance with the constitutional Speech.
provision that "any such franchise or right granted . . .
shall be subject to amendment, alteration or repeal A:
by the Congress when the common good so
GOVERNMENT SPEECH PRIVATE SPEECH
requires."
The government may The right of a person to
advance its own speech freely speak ones mind
In truth, radio and television broadcasting companies,
without requiring is a highly valued
which are given franchises, do not own the airwaves
viewpoint neutrality freedom in a republican
and frequencies through which they transmit
when the government and democratic society.
broadcast signals and images. They are merely given
itself is the speaker. (Ashcroft v. Free Speech
the temporary privilege of using them. Since a
(doctrine was implied Coalition, 535 U.S. 234
franchise is a mere privilege, the exercise of the
in Wooley v. Maynard in (2002))
privilege may reasonably be burdened with the
1971)
performance by the grantee of some form of public
service.
HECKLERS VETO
In the granting of the privilege to operate broadcast
stations and thereafter supervising radio and Q: What is a Hecklers Veto?
television stations, the state spends considerable
public funds in licensing and supervising such A: A heckler's veto occurs when an acting party's right
stations. It would be strange if it cannot even require to freedom of speech is curtailed or restricted by the
the licensees to render public service by giving free government in order to prevent a reacting party's
air time. (Telecommunications and Broadcast behavior. The term Hecklers Veto was coined by
Attorneys of the Philippines, INC. vs. COMELEC, G.R. University of Chicago professor of law Harry Kalven.
No. 132922, April 21, 1998)
It may be in the guise of a permit requirement in the
COMMERCIAL SPEECH holding of rallies, parades, or demonstrations
conditioned on the payment of a fee computed on
Q: What is the meaning of commercial speech? the basis of the cost needed to keep order in view of
the expected opposition by persons holding contrary
A: It is communication which no more than proposes views. (Gorospe, 2006, citing Forsyth County v.
a commercial transaction. Advertisements of goods Nationalist Movement, 315 U.S. 568, 1942)
or of services is an example of this.(Bernas, the 1987

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FREEDOM OF ASSEMBLY AND PETITION A:


1. Purpose Test looks into the purpose of the
Q: Is the right to assembly subject to prior restraint? assembly regardless of its backers. (De Jonge v.
Oregon, 299 US 353, 365, 1937)
A: No. It may not be conditioned upon the prior 2. Auspices Test looks into the
issuance of a permit or authorization from backers/supporters.
government authorities. However, the right must be
exercised in such a way as will not prejudice the Note: The ruling in Evangelista v. Earnshaw (G.R. No.
public welfare. 36453, Sept. 28, 1932) hasnot yet been abrogated where
the Mayor revoked permits he already granted because the
group, the Communist Party of the Philippines, was found
Q: What is the so-called permit system?
by the fiscal to be an illegal association. When the intention
and effect of the act is seditious, the constitutional
A: Under the permit system, before one can use a guaranties of freedom of speech and press and of assembly
public place, one must first obtain prior permit from and petition must yield to punitive measures designed to
the proper authorities. Such is valid if: maintain the prestige of constituted authority, the
1. It is concerned only with the time, place, and supremacy of the Constitution and the laws, and the
manner of assembly; and existence of the State.
2. It does not vest on the licensing authority
unfettered discretion in choosing the groups Q: Is the concept of people power recognized in the
which could use the public place and Constitution? Discuss briefly.
discriminate others.
A: Yes. The Constitution:
Note: Permits are not required for designated freedom 1. Guarantees the right of the people to peaceably
parks. assemble and petition the government for
redress of grievances (Sec. 4, Article III,).
Q: What are the rules on assembly in public places? 2. Requires Congress to pass a law allowing the
people to directly propose and enact laws
A: through initiative and to approve or reject any
1. The applicant should inform the licensing act or law or part of it passed by Congress or a
authority of the date, the public place where and local legislative body (Sec. 32, Article VI).
the time when the assembly will take place. 3. Provides that the right of the people and their
2. The application should be filed ahead of time to organizations to participate at all levels of social,
enable the public official concerned to apprise political, and economic decision-making shall not
whether there are valid objections to the grant of be abridged and that the State shall, by law,
the permit or to its grant, but in another public facilitate the establishment of adequate
place. The grant or refusal should be based on consultation mechanisms (Sec. 16, Article XIII).
the application of the Clear and Present Danger 4. Provides that subject to the enactment of an
Test. implementing law, the people may directly
3. If the public authority is of the view that there is propose amendments to the Constitution
an imminent and grave danger of a substantive through initiative (Sec. 2, Article XVII).
evil, the applicants must be heard on the matter.
4. The decision of the public authority, whether Q: Executive Secretary Pat Alampay issued a policy
favorable or adverse, must be transmitted to the via press release. The policy pertains to the strict
applicants at the earliest opportunity so that implementation of Batas Pambansa 880 also known
they may, if they so desire, have recourse to the as the Public Assembly Act of 1985. It provides for
proper judicial authority (Reyes vs. Bagatsing, the strict enforcement of no permit, no rally
G.R. No. L-65366, Nov. 9, 1983). policy, and arrest of all persons violating the laws
of the land, and dispersal of unlawful mass actions.
Q: What is the rule on assembly in private Is BP Blg. 880 unconstitutional on the ground that it
properties? violates the constitutionality guaranteed right to
peaceful assembly?
A: Only the consent of the owner of the property or
person entitled to possession thereof is required. A: No, BP 880 is constitutional. It does not curtail or
unduly restrict freedom. It merely regulates the use
Q: What are the two tests applicable to the exercise of public places as to the time, place and manner of
of the right to assembly? assemblies. Far from being insidious, maximum
tolerance is for the benefit of the rallyists, not the

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government. The delegation to the mayors of the NON-ESTABLISHMENT CLAUSE


power to issue rally permits is valid because it is
subject to the constitutionally sound clear and Q: What is the basis of the non-establishment
present danger standard. (Bayan Karapatan vs. clause?
Eduardo Ermita, et al., G.R. No. 169838, April 25,
2006) A: Article III, Sec. 5- No law shall be made respecting
an establishment of religion, or prohibiting the free
Q: Is the Calibrated Preemptive Response (CPR) exercise thereof.
legal?
Q: What is the concept of the non- establishment
A: CPR Policy is illegal. In view of the maximum clause?
tolerance policy mandated by BP Blg. 880, CPR serves
no valid purpose if it means the same thing as A: It means that the state should adopt a position of
maximum tolerance, and is illegal if it means neutrality when it comes to religious matters.
something else. Accordingly, what is to be followed is (Political Law Reviewer, Suarez ,p. 252 citing CJ
and should be that mandated by law itself, namely, Fernando, 2011).
maximum tolerance, which specifically means the
highest degree of restraint that the military, police Q: What is the purpose of the non-establishment
and other peace keeping authorities shall observe clause?
during a public assembly or in dispersal of the same.
(Bayan Karapatan vs. Eduardo Ermita, et al., G.R. No. A: There is no unanimous interpretation of this clause
169838, April 25, 2006) as a political principle, but there seems to be a
substantial agreement that this protects voluntarism
Q. Mayor Jason Alquiroz modified the permit to and insulation of the political process from interfaith
rally of IBP outright without informing the dissension. (The 1987 Philippine Constitution A
applicants. Is it valid? Comprehensive Reviewer by Fr. Bernas, p. 83).

A: In modifying the permit outright, respondent Voluntarism as a value is both personal and social.
gravely abused his discretion when he did not As a personal value, it is nothing more than the
immediately inform the IBP who should have been inviolability of the human conscience which is also
heard first on the matter of perceived imminent and protected by the free exercise clause. As a social
grave danger of a substantive evil that may warrant value, protected by the non-establishment clause, it
the changing of the venue. Respondent failed to means that the growth of a religious sect as a social
indicate how he had arrived at modifying the terms of force must come from the voluntary support of its
the permit against the standard of clear and present members because of the belief that both spiritual and
danger which is an indispensable condition to such secular society will benefit if religions are allowed to
modification. (IBP v. Atienza GR No. 175241 February compete on ther own intrinsic merit without benefit
24, 2010) of official patronage. Such voluntarism cannot be
achieved unless the political process is insulated from
FREEDOM OF RELIGION religion and unless religion is insulated from politics.
Non establishment assures such insulation and
Q: What is religion? thereby prevents interfaith dissention. (Bernas, S.J.,
2011)
A: A profession of faith to an active power that binds
and elevates man to his creator. (Aglipay vs. Ruiz, GR. ACTS PERMITTED AND
No. L-45459, Mar. 13, 1937) NOT PERMITTED BY THE CLAUSE

Q: What are the two guarantees contained in Sec. 5 Q: What acts are not permitted under the non-
Article III of the 1987 Constitution? establishment clause?

A: A: The non-establishment clause states that the State


1. Non-establishment clause; cannot:
2. Free exercise clause, or the freedom of 1. Set up a church
religious profession and worship 2. Pass laws which aid one or all religions or prefer
one over another

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3. Influence a person to go to or stay away from 2. Act on ones belief, which is subject to
church against his will regulation.
4. Force him to profess a belief or disbelief in any
religion Q: Give some exceptions to the non-establishment
clause as held by jurisprudence.
Q: How does one distinguish allowable from non-
allowable aid? A:
1. Tax exemption on property actually, directly and
A: To be allowable, government aid must: exclusively used for religious purposes;
a. Have a secular legislative purpose; 2. Religious instruction in public schools:
b. Have a primary effect that neither advances nor a. At the option of parents/guardians
inhibits religion; expressed in writing;
c. Not require excessive entanglement with b. Within the regular class hours by
recipient intitutions. (Bernas, S.J., 2011) instructors designated or approved by
religious authorities of the religion to
Q: What are the constitutional provisions which which the children belong;
express the non-establishment clause? c. Without additional costs to the
government;
A: 3. Financial support for priest, preacher, minister,
1. Art VI, Sec 29- no public money/property given to or dignitary assigned to the armed forces, penal
religious sect or minister/religious personnel institution or government orphanage or
(except for those assigned to army, penal leprosarium;
institution, government orphanage and 4. Government sponsorship of town fiestas, some
leprosarium) purely religious traditions have now been
2. Art II, Sec 6- Separation of church and state is considered as having acquired secular character;
inviolable and
3. Art IX(C), Sec 2 (5)- No religious sects can be 5. Postage stamps depicting Philippines as the
registered as political parties venue of a significant religious event benefit to
the religious sect involved was merely incidental
Q: What are the constitutionally created exceptions as the promotion of Philippines as a tourist
to the non-establishment clause? destination was the primary objective.

A: Q: What is the Lemon test?


1. Article 6, Section 29
2. Article 6, Section 28 (3) (exemption from taxation A: It is a test to determine whether an act of the
of properties actually, directly and exclusively government violates the non-establishment clause.
used for religious purposes To pass the Lemon test, a government act or policy
3. Article 14, Section 3 (3) (optional religious must:
instruction in public elementary and high 1. Have a secular purpose;
schools) 2. Not promote or favor any set of religious beliefs
4. Article 14, Section 4 (2) (citizenship requirement or religion generally; and
of ownership of educational institutions, except 3. Not get the government too closely involved
those established by religious groups and mission (entangled) with religion.
boards)
5. Article 6, Section 29 (2) (appropriation allowed Q: Angel, a court interpreter, is living with a man not
where ecclesiastic is employed in armed forces, her husband. Ben filed the charge against X as he
in a penal institution, or in a government-owned believes that she is committing an immoral act that
orphanage or leprosarium) tarnishes the image of the court, thus she should not
be allowed to remain employed therein as it might
FREE-EXERCISE CLAUSE appear that the court condones her act. Angel
admitted that she has been living with CA without
Q: What are the aspects of freedom of religious the benefit of marriage for twenty years and that
profession and worship? they have a son. But as a member of the religious
sect known as the Jehovahs Witnesses and the
A: These are the right to Watch Tower and Bible Tract Society, their conjugal
1. Believe, which is absolute; and arrangement is in conformity with their religious

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beliefs. In fact, after ten years of living together, she which depend the existence and progress of human
executed on July 28, 1991 a Declaration of Pledging society" and not because the conduct is proscribed by
Faithfulness. Should Angels right to religious the beliefs of one religion or the other. (Estrada v.
freedom carve out an exception from the prevailing Escritor, A.M. No. P-02-1651, June 22, 2006)
jurisprudence on illicit relations for which
government employees are held administratively Q: The petitioners, led by Mylene, members of the
liable? Philippine Independent church, clamored for the
transfer of Fr. B to another parish but Bishop Kevin
A: Yes. Angels conjugal arrangement cannot be denied their request. The problem was compounded
penalized as she has made out a case for exemption when Bishop Kevin told Mylene not to push through
from the law based on her fundamental right to with his plan to organize an open mass to be
freedom of religion. The Court recognizes that State celebrated by Fr. Garry during the town fiesta of
interests must be upheld in order that freedoms Socorro. Bishop Kevin failed to stop Mylene from
including religious freedom may be enjoyed. In the proceeding with her plan. Mylene and her
area of religious exercise as a preferred freedom, sympathizers proceeded with their plan.
however, man stands accountable to an authority Subsequently, Bishop Kevin declared petitioners
higher than the State, and so the State interest expelled/excommunicated from the Philippine
sought to be upheld must be so compelling that its Independent Church. Petitioners filed a complaint
violation will erode the very fabric of the State that for damages with preliminary Injunction against
will also protect the freedom. In the absence of a Bishop Kevin. Is it within the jurisdiction of the
showing that such State interest exists, man must be courts to hear the case involving the
allowed to subscribe to the Infinite (Estrada v. expulsion/excommunication of members of a
Escritor, A.M. No. P-02-1651, June 22, 2006). religious institution?

Q: Ang Ladlad is an organization composed of men A: No. The church and the state are separate and
and women who identify themselves as lesbians, distinct from each other. Said matter involving the
gays, bisexuals, or trans-gendered individuals Expulsion/excommunication of members of the
(LGBTs). Ang Ladlad applied for registration with the Philippine Independent Church should be left to the
COMELEC. The COMELEC dismissed the petition on discretion of the officials of said religious institution
moral grounds, stating that definition of sexual in line with the doctrine that the court should not
orientation of the LGBT sector makes it crystal clear interfere on doctrinal and disciplinary differences.
that petitioner tolerates immorality which offends (Dominador Taruc, et al. vs. Bishop Perfirio Dela Cruz,
religious beliefs based on the Bible and the Koran. GR. No. 044801, Mar. 10, 2005)
Ang Ladlad argued that the denial of accreditation,
insofar as it justified the exclusion by using religious TESTS
dogma, violated the constitutional guarantees
against the establishment of religion. Is this CLEAR AND PRESENT DANGER TEST
argument correct?
Q: When can the clear and present danger test be
A: Yes. It was grave violation of the non- applied with regard to the Freedom of Religion?
establishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang A: When what is involved is religious speech as this is
Ladlad. Our Constitution provides in Article III, Section often used in cases of freedom of expression.
5 that no law shall be made respecting an
establishment of religion, or prohibiting the free COMPELLING STATE INTEREST TEST
exercise thereof. At bottom, what our non-
establishment clause calls for is government Q: What test is used in cases involving purely
neutrality in religious matters. Clearly, governmental conduct based on religious belief?
reliance on religious justification is inconsistent with
this policy of neutrality (Ang Ladlad LGBT Party v. A: The Compelling State Interest test.
COMELEC, G.R. No. 190582, Apr. 8, 2010).
Q: What is the Compelling State Interest test?
The government must act for secular purposes and in
ways that have primarily secular effects. That is, the A: It is the test used to determine if the interests of
government proscribes this conduct because it is the State are compelling enough to justify
"detrimental (or dangerous) to those conditions upon

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infringement of religious freedom. It involves a three- In the case at bar, the students expelled were only
step process: standing quietly during ceremonies. By observing the
1. Has the statute or government action created a ceremonies quietly, it doesnt present any danger so
burden on the free exercise of religion? Courts evil and imminent to justify their expulsion. The
often look into the sincerity of the religious expulsion of the students by reason of their religious
belief, but without inquiring into the truth of the beliefs is also a violation of a citizens right to free
belief since the free exercise clause prohibits education. The non-observance of the flag ceremony
inquiring about its truth. does not totally constitute ignorance of patriotism
and civic consciousness. Love for country and
2. Is there a sufficiently compelling state interest to
admiration for national heroes, civic consciousness
justify this infringement of religious liberty? In
and form of government are part of
this step, the government has to establish that its
the school curricula. Therefore, expulsion due to
purposes are legitimate for the State and that
religious beliefs is unjustified (Ebralinag v. Division
they are compelling.
Superintedent of Cebu, G.R.No. 95770, March 1,
3. Has the State in achieving its legitimate purposes 1993).
used the least intrusive means possible so that
the free exercise is not infringed any more than CONSCIENTIOUS OBJECTOR TEST
necessary to achieve the legitimate goal of the
State? The analysis requires the State to show Q: Who is a conscientious objector?
that the means in which it is achieving its
legitimate State objective is the least intrusive A: A conscientious objector is an "individual who has
means, or it has chosen a way to achieve its claimed the right to refuse to perform military
legitimate State end that imposes as little as service on the grounds of freedom of thought,
possible intrusion on religious beliefs. conscience, and/or religion.(International Covenant
on Civil and Political Rights, Article 18)
Q: Shery, Julia, Paula, Joanne, Lisette and Angela
were minor school children and member of the sect, Q: What are the requisites for one to be considered
Jehovahs Witnesses. They were expelled from their a conscientious objector?
classes by various public school authorities for
refusing to salute the flag, sing the national anthem A:
and recite the Panatang Makabayan required by 1. The person is opposed to war in any form
RA1265. According to them, the basic assumption in 2. He must show that this opposition is based upon
their universal refusal to salute the flags of the religious training and belief
countries in which they are found is that such a 3. And he must show that this objection is sincere.
salute constitutes an act of religious devotion (Clay v. United States, 403 U.S.698 (1971)
forbidden by God's law and that their freedom of
religion is grossly violated. On the other hand, the Q: Boxer Muhammad Jerald Tristan Ali, a muslim,
public authorities claimed that the freedom of refused to report for induction into the United
religious belief guaranteed by the Constitution does States military forces during the Vietnam War. He
not mean exception from non-discriminatory laws applied to be exempted based on the teachings of
like the saluting of flag and singing national anthem. Islam. His local draft board had rejected his
To allow otherwise would disrupt school discipline application for conscientious objector classification.
and demoralize the teachings of civic consciousness Is the denial correct?
and duties of citizenship. Is the expulsion justified?
A: No, the United States Supreme Court held that
A: No. Religious freedom is a fundamental right of there is no dispute that Alis professed beliefs were
highest priority. The two- fold aspect of right to founded on basic tenets of the Muslim religion, as he
religious worship is: 1.) Freedom to believe which is understood them, and derived in substantial part
an absolute act within the realm of thought. 2.) from his devotion to Allah as the Supreme Being.
Freedom to act on ones belief regulated and Thus, his claim unquestionably was within the
translated to external acts. The only limitation to `religious training and belief' clause of the exemption
religious freedom is the existence of grave provision." (Clay v. United States, 403 U.S.698 (1971)
and present danger to public safety, morals, health
and interests where State has right to prevent. The
expulsion of the petitioners from the school is not
justified.

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LIBERTY OF ABODE AND FREEDOM OF MOVEMENT such as passport-officers, may likewise curtail such
right in the interest of national security, public safety,
Q: What are the rights guaranteed under Section 6 or public health, as may be provided by law.
of the Bill of Rights?
Q: PASEI is engaged in the recruitment of Filipino
A: workers, male and female, for overseas
1. Freedom to choose and change ones place of employment. It challenged the validity of
abode; and Department Order No. 1 of the Department of Labor
2. Freedom to travel within the country and and Employment because it suspends the
outside. deployment of Filipino Domestic and household
workers abroad. PASEI contends that it impairs the
Q: What is the meaning of liberty of abode? constitutional right to travel. Is the contention
correct?
A: It is the right of a person to have his home or to
maintain or change his home, dwelling, residence or A: No, the deployment ban does not impair the right
habitation in whatever place he has chosen, within to travel. The right to travel is subject, among other
the limits prescribed by law. (Political Law Reviewer, things, to the requirements of "public safety," "as
Suarez, 2011). may be provided by law." Department Order No. 1 is
a valid implementation of the Labor Code, in
LIMITATIONS particular, its basic policy to "afford protection to
labor," pursuant to the Department of Labor's rule-
Q: What is the limitation on the liberty of abode? making authority vested in it by the Labor Code.
(Philippine Association of Service Exporters, Inc. vs.
A: The liberty of abode may be impaired only upon Drilon, G.R. No. 81958, June 30, 1988)
lawful order of the court and within the limits
prescribed by law. WATCH-LIST AND HOLD DEPARTURE ORDERS

Example: Q: What is a watch-list? When may it be issued?


1. Persons in the danger zone areas (i.e. Mt.
Pinatubo, Taal Volcano) may be relocated to A: A watch-list (WLO) is an order issued to prevent an
safer areas and evacuation centers in case of individual from travelling. It may be issued by the
danger and emergency to save lives and Secretary of Justice motu proprio or upon request,
property. under any of the following circumstances:
2. Insane persons who roam around in Roxas 1. Against the accused, irrespective of nationality,
Boulevard may be committed by the government in criminal cases pending trial before the RTCs or
to the National Mental Hospital for appropriate before courts below the RTCs.
treatment and medical attention. (Political Law
2. Against the respondent, irrespective of
Reviewer, Suarez, 2011)
nationality, in criminal cases pending preliminary
RIGHT TO TRAVEL investigation, petition for review, or motion for
reconsideration before the DOJ or any of its
Q: What is the right to travel? provincial or city prosecution offices.
3. The Secretary of Justice may likewise issue a
A: It is the right of a person to go where he pleases WLO against any person, either on his own, or
without interference from anyone. (Political Law upon the request of any government agency,
Reviewer, Suarez, 2011). including commissions, task forces or similar
entities created by the Office of the President,
Q: What is the limitation on the right to travel? pursuant to the "Anti-Trafficking in Persons Act
of 2003" (R.A. No. 9208) and/or in connection
A: The limitations are the interest of national with any investigation being conducted by it, or
security, public safety or public health, as may be in the interest of national security, public safety
provided by law. or public health.. (Section 2, DOJ Circ. 41, s.2010)

With respect to the right to travel, it is settled that Note: WLO is available for (a) criminal cases pending before
only a court may issue a hold departure order against lower courts, or even for (b) cases still under preliminary
an individual addressed to the Bureau of Immigration investigation. A WLO is good for sixty (60) days (Section 4,
and Departure. However, administrative authorities, DOJ Circ. 41, s.2010).

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Q: What is a Hold Departure Order? When may it be agencies or instrumentalities, or in the interest of
issued? national security, public safety or public health.
(Section 1, DOJ Circ. 41, s.2010).
A: A Hold Departure Order (HDO) is an order issued
to prevent an individual from travelling. It may be Note: A Hold Departure Order can be issued against (a) an
issued by the Secretary of Justice motu proprio or accused in criminal cases under the jurisdiction of the
upon request, under any of the following Regional Trial Courts and even (b) against aliens whose
presence is required either as respondents or as witnesses.
circumstances:
Note: A HDO is valid for five (5) years from issuance.
1. Against the accused, irrespective of nationality,
in criminal cases falling within the jurisdiction of Q: When can the WLO or HDO be cancelled or lifted?
courts below the Regional Trial Courts (RTCs):
A: The HDO and WLO can be lifted or cancelled as
i. If the case against the accused is follows:
pending trial, the application under oath
of an interested party must be 1. When the validity period of the HDO has already
supported by (a) a certified true copy of expired;
the complaint or information; and (b) a 2. When the accused subject of the HDO has been
Certification from the Clerk of Court allowed to leave the country during the
concerned that criminal case is still pendency of the case, or has been acquitted of
pending. the charge, or the case in which the
warrant/order of arrest was issued has been
ii. If the accused has jumped bail or has dismissed or the warrant/order of arrest has
become a fugitive from justice, the been recalled;
application under oath of an interested 3. When the civil or labor case or case before an
party must be supported by (a) a administrative agency of the government
certified true copy of the complaint or wherein the presence of the alien subject of the
information; (b) a certified true copy of HDO/WLO has been dismissed by the court or by
the warrant/order of arrest; and (c) a appropriate government agency, or the alien has
Certification from the Clerk of Court been discharged as a witness therein, or the alien
concerned that the warrant/order of has been allowed to leave the country.
arrest was returned unserved by the
peace officer to whom the same was The WLO may be lifted or cancelled under any of the
delivered for service. following grounds:
2. Against the alien whose presence is required 1. When the validity period of the WLO has already
either as a defendant, respondent, or witness in expired;
a civil or labor case pending litigation, or any case 2. When the accused subject of the WLO has been
before a quasi-judicial or an administrative allowed by the court to leave the country during
agency of the government. the pendency of the case, or has been acquitted
of the charge;
The application under oath of an interested party 3. When the preliminary investigation is
must be supported by (a) a certified true copy of terminated, or when the petition for review, or
the subpoena or summons issued against the motion for reconsideration has been denied
alien; and (b) a certified true copy complaint in and/or dismissed.
civil, labor or administrative case where the
presence of the alien is required.
RETURN TO ONES COUNTRY
3. The Secretary may likewise issue an HDO against
Q: Is the right to return to ones country guaranteed
any person, either on his own, or upon the
in the Bill of Rights?
request by the Head of a Department of the
Government, the head or a constitutional body
A: The right to return to ones country is not among
or commission, the Chief Justice of the Supreme
the rights specifically guaranteed in the Bill of Rights,
Court for the Judiciary, the Senate President or
which treats only of the liberty of abode and the right
the House Speaker for the Legislature, when the
to travel. Nevertheless, the right to return may be
adverse party is the Government or any of its
considered as a generally accepted principle of

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International law, and under the Constitution, is part 1. Information affecting national security,
of the law of the land. However, it is distinct and military and diplomatic secrets. It also
separate from the right to travel and enjoys a includes inter-government exchanges
different protection under the Intl. Covenant of Civil prior to consultation of treaties and
and Political Rights. (Marcos v. Manglapus, G.R. No. executive agreement as may reasonably
88211, Sept. 15, 1989 & Oct. 27, 1989) protect the national interest
2. Matters relating to investigation,
Q: The military commander in charge of the apprehension, and detention of criminals
operation against rebel groups directed the which the court may not inquire into
inhabitants of the island which would be the target prior to arrest, prosecution and detention
of attack by government forces to evacuate the area 3. Trade and industrial secrets and other
and offered the residents temporary military banking transactions as protected by the
hamlet. Can the military commander force the Intellectual Property Code and the
residents to transfer their places of abode without a Secrecy of Bank Deposits Act
court order? 4. Other confidential information falling
under the scope of the Ethical Safety Act
A: No, the military commander cannot do so without concerning classified information
a court order. Under Sec. 6, Art. III of the
Constitution, a lawful order of the court is required PUBLICATION OF LAWS AND REGULATIONS
before the liberty of abode and of changing the same
can be impaired. Q: Is there a need for publication of laws to
reinforce the right to information?
RIGHT TO INFORMATION
A: Yes. In Tanada v. Tuvera, the Court said Laws must
Q: What is the scope of the right? come out in the open in the clear light of the sun
instead of skulking in the shadows with their dark,
A: This covers information on matters of public deep secrets. Mysterious pronouncements and
concern. It pertains to access to official records, rumored rules cannot be recognized as binding unless
documents and papers pertaining to official acts, their existence and contents are confirmed by a valid
transactions or decisions, as well as to government publication intended to make full disclosure and give
research data used as basis for policy development. proper notice to the people.

The SC has held in Chavez v. PEA and AMARI (G.R. No. ACCESS TO COURT RECORDS
133250, July 9, 2002) that the right to information
contemplates inclusion of negotiations leading to the Q: During the pendency of the intestate
consummation of the transaction. proceedings, Ojay, a creditor of the deceased, filed
a motion with a prayer that an order be issued
Note: The right only affords access to records, documents requiring the Branch Clerk of Court to furnish him
and papers, which means the opportunity to inspect and
with copies of all processes and orders and to
copy them at his expense. The exercise is also subject to
reasonable regulations to protect the integrity of public
require the administratrix to serve him copies of all
records and to minimize disruption of government pleadings in the proceedings. The judge denied the
operations. motion because the law does not give a blanket
authority to any person to have access to official
LIMITATIONS records and documents and papers pertaining to
official acts. The judge said that his interest is more
Q: What are the limitations and exceptions to the of personal than of public concern. Is the judge
right to information and access to public records? correct?

A: A: No. The right to information on matters of public


GR: The access must be for a lawful purpose and is concern is a constitutional right. However, such is not
subject to reasonable conditions by the custodian of absolute. Under the Constitution, access is subject to
the records. limitations as may be provided by law. Therefore, a
law may exempt certain types of information from
XPNS: The right does not extend to the public scrutiny such as national security. The privilege
following: against disclosure is recognized with respect to state
secrets bearing on the military, diplomatic and similar

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matters. Since intestate proceedings do not contain Q: What is the difference between the right to
any military or diplomatic secrets which will be unionize and the right to association?
disclosed by its production, it is an error on the part
of the judge to deny Ramons motion. (Hidalgo v. A: The right to unionize is an economic and labor
Reyes, AM No. RTJ-05-1910, Apr. 15, 2005) right while the right to association in general is a civil-
political right.
RIGHT TO INFORMATION RELATIVE TO:
Q: What constitutes freedom of association?
GOVERNMENT CONTRACT NEGOTIATIONS
A: Freedom of association includes the freedom not
Q: May the government, through the PCGG, be to associate, or, if one is already a member, to
required to reveal the proposed terms of a disaffiliate from the association
compromise agreement with the Marcos heirs as
regards their alleged ill-gotten wealth? Q: Is the right to strike included in the right to form
unions or freedom of assembly by government
A: It is incumbent upon the PCGG, and its officers, as employees?
well as other government representatives, to disclose
sufficient public information on any proposed A: No, the right to strike is not included. Their
settlement they have decided to take up with the employment is governed by law. It is the Congress
ostensible owners and holders of ill-gotten wealth. and administrative agencies which dictate the terms
Such information must pertain to definite and conditions of their employment. The same is
propositions of the government. (Chavez v. PCGG, fixed by law and circulars and thus not subject to any
G.R. No. 130716, Dec. 9, 1998) collective bargaining agreement.

DIPLOMATIC NEGOTIATIONS Note: Pursuant to Sec. 4, Rule III of the Rules and
Regulations to Govern the Exercise of the Right of
Q: Petitioners request that they be given a copy of Government Employees to Self-Organization, the
the text of the JPEPA and the offers and negotiations terms and conditions of employment in the
between the Philippines and Japan. Are these Government, including any of its instrumentalities,
matters of public concern? Can they be disclosed? political subdivision and government owned and
controlled corporations with original charters, are
A: There is a distinction between the text of the governed by law and employees therein shall not
treaty and the offers and negotiations. They may strike for the purpose of securing changes thereof.
compel the government to disclose the text of the (SSS Employees Association v. CA, GR. No. 85279, July
treaty but not the offers between RP and Japan, 28, 1989) The only available remedy for them is to
because these are negotiations of executive lobby for better terms of employment with Congress.
departments. Diplomatic Communication negotiation
is privileged information. (Akbayan v. Aquino, G.R. EMINENT DOMAIN
No. 170516, July 16, 2008)
Q: What is the power of eminent domain?
RIGHT OF ASSOCIATION
A: It is the power of the state to forcibly acquire the
Q: What does the freedom of association mean? needed property in order to devote it to the intended
public use, upon payment of just compensation.
A: It means that the right to form associations shall (Cruz, Constitutional Law, p.62)
not be impaired without due process of law. It is
therefore an aspect of the general right of liberty. EXPANSIVE CONCEPT OF PUBLIC USE
More specifically, it is an aspect of freedom of
contract; and in so far as associations may have for Q: Does the requisite of public use mean use by the
their object the advancement of beliefs and ideas, public at large?
freedom of association is an aspect of freedom of
expression and of belief. The guarantee also covers A: No. Whatever may be beneficially employed for
the right not to join an association. (Bernas, The 1987 the general welfare satisfies the requirement.
Philippine Constitution: A Comprehensive Reviewer, Moreover, that only few people benefits from the
2006, p. 97) expropriation does not diminish its public-use
character because the notion of public use now

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includes the broader notion of indirect public benefit DETERMINATION


or advantage.(Manosca v. CA, G.R. 166440, Jan. 29,
1996). Q: When should assessment of the value of the
property be determined?
JUST COMPENSATION
A: The value of the property must be determined
Q: What is just compensation? either at the time of taking or filing of the complaint,
whichever comes first.(EPZA v. Dulay, G.R. No. 59603,
A: It is the full and fair equivalent of the property April 29, 1987).
taken from the private owner (owners loss) by the
expropriator. It is usually the fair market value (FMV) EFFECT OF DELAY
of the property and must include consequential
damages (damages to the other interest of the owner Q: Does non-payment of just compensation entitle
attributed to the expropriation) minus consequential the private owner to recover possession of the
benefits (increase in the value of other interests expropriated property?
attributed to new use of the former property).
A:
Note: FMV is the price fixed by the parties willing but not GR: Non-payment by the government does not
compelled to enter into a contract of sale. entitle private owners to recover possession of the
property because expropriation is an in rem
Q: Does compensation have to be paid in money? proceeding, not an ordinary sale, but only entitle
them to demand payment of the fair market value of
A: the property.
GR: Yes.
XPNS:
XPN: In cases involving CARP, compensation 1. When there is deliberate refusal to pay
may be in bonds or stocks, for it has been just compensation
held as a non-traditional exercise of the 2. Governments failure to pay
power of eminent domain. It is not an compensation within 5 years from the
ordinary expropriation where only a specific finality of the judgment in the
property of relatively limited area is sought expropriation proceedings. This is in
to be taken by the State from its owner for a connection with the principle that the
specific and perhaps local purpose. It is government cannot keep the property
rather a revolutionary kind of expropriation and dishonor the judgment. (Republic v.
(Association of Small Landowners in the Lim, G.R. No. 161656, June 29, 2005)
Philippines, Inc. v. Secretary of Agrarian
Reform, G.R. No. 78742, 14 July 1989). ABANDONMENT OF INTENDED USE AND RIGHT OF
REPURCHASE
Q: Is the owner entitled to the payment of interest?
How about reimbursement of taxes paid on the Q: Several parcels of lands located in Lahug, Cebu
property? City were the subject of expropriation proceedings
filed by the Government for the expansion and
A: Yes, the owner is entitled to the payment of improvement of the Lahug Airport. The trial court
interest from the time of taking until just rendered judgment in favor of the Government and
compensation is actually paid to him. Taxes paid by ordered the latter to pay the landowners the fair
him from the time of the taking until the transfer of market value of the land. The landowners received
title (which can only be done after actual payment of the payment.
just compensation), during which he did not enjoy
any beneficial use of the property, are reimbursable The other unsatisfied landowners
by the expropriator. appealed. Pending appeal, the Air Transportation
Office (ATO), proposed a compromise settlement
Q: What legal interest should be used in the whereby the owners of the lots affected by the
computation of interest on just compensation? expropriation proceedings would either not appeal
or withdraw their respective appeals in
A: An interest of 12% per annum on the just consideration of a commitment that the
compensation due the landowner. (LBP v. Wycoco expropriated lots would be resold at the price they
G.R. No. 140160, January 13, 2004)

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were expropriated in the event that the ATO would Governments exercise of its power of eminent
abandon the Lahug Airport, pursuant to an domain, is always subject to the condition that the
established policy involving similar cases. Because of property be devoted to the specific public purpose
this promise, the landowners did not pursue their for which it was taken. Corollarily, if this particular
appeal. Thereafter, the lot was transferred and purpose or intent is not initiated or not at all pursued,
registered in the name of the Government. The and is peremptorily abandoned, then the former
projected improvement and expansion plan of the owners, if they so desire, may seek the reversion of
old Lahug Airport, however, was not pursued. From the property, subject to the return of the amount of
the date of the institution of the expropriation just compensation received. In such a case, the
proceedings up to the present, the public purpose of exercise of the power of eminent domain has become
the said expropriation (expansion of the airport) was improper for lack of the required factual justification
never actually initiated, realized, or implemented. (Mactan-Cebu International Airport Authority and Air
Transportation Office v. Lozada, et. al, G.R. No.
Thus, the landowners initiated a complaint for the 176625, Feb. 25, 2010).
recovery of possession and reconveyance of
ownership of the lands based on the compromised MISCELLANEOUS APPLICATION
agreement they entered into with the ATO. On the
other hand, the Government anchor their claim to Q: An ordinance of Quezon City requires memorial
the controverted property on the supposition that park operators to set aside at least 6% of their
the decision in the pertinent expropriation cemetery for charity burial of deceased persons. The
proceedings did not provide for the condition that same ordinance also imposes sanction in case of
should the intended use of the land for the violation in the form of fine or imprisonment and
expansion of the Lahug Airport be aborted or revocation or cancellation of permit to operate. Is
abandoned, the property would revert to this a valid exercise of police power?
respondents, being its former owners. Do the
former owners have the right to redeem the A: No, it constitutes taking of property without just
property? compensation. The power to regulate does not
include the power to prohibit. The power to regulate
A: Yes. It is well settled that the taking of private does not include the power to confiscate. The
property by the Governments power of eminent ordinance in question not only confiscates but also
domain is subject to two mandatory requirements: prohibits the operation of a memorial park cemetery,
(1) that it is for a particular public purpose; and (2) because under Section 13 of said ordinance,
that just compensation be paid to the property 'Violation of the provision thereof is punishable with
owner. These requirements partake of the nature of a fine and/or imprisonment and that upon conviction
implied conditions that should be complied with to thereof the permit to operate and maintain a private
enable the condemnor to keep the property cemetery shall be revoked or cancelled. The
expropriated. confiscatory clause and the penal provision in effect
deter one from operating a memorial park cemetery.
More particularly, with respect to the element of Moreover, instead of building or maintaining a public
public use, the expropriator should commit to use the cemetery for this purpose, the city passes the burden
property pursuant to the purpose stated in the to private cemeteries. (City Government of Quezon
petition for expropriation filed, failing which, it City v. Ericta, G.R. No. L-34915, Jun. 24, 1983)
should file another petition for the new purpose. If
not, it is then incumbent upon the expropriator to Q: Can there be expropriation in right of way
return the said property to its private owner, if the easement?
latter desires to reacquire the same. Otherwise, the
judgment of expropriation suffers an intrinsic flaw, as A: Yes. Expropriation is not limited to the acquisition
it would lack one indispensable element for the of real property with a corresponding transfer of title
proper exercise of the power of eminent domain, or possession the right of way easement resulting in
namely, the particular public purpose for which the a restriction of limitation on property right over the
property will be devoted. Accordingly, the private land traversed by transmission lines also falls within
property owner would be denied due process of law, the ambit of the term expropriation. (NPC v. Maria
and the judgment would violate the property Mendoza San Pedro, G.R. No. 170945 Sept. 26, 2006)
owners right to justice, fairness, and equity.
Q: Causby sued the United States for trespassing on
In light of these premises, we now expressly hold that his land, complaining specifically about how "low-
the taking of private property, consequent to the

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flying military planes caused the plaintiffs' chickens A:


to 'jump up against the side of the chicken house 1. If it changes the terms and conditions of a legal
and the walls and burst themselves open and die. contract either as to the time or mode of
Are they entitled to compensation by reason of performance
taking clause? 2. If it imposes new conditions or dispenses with
those expressed if it authorizes for its satisfaction
A: There is taking by reason of the frequency and something different from that provided in its
altitude of the flights. Causby could not use his land terms
for any purpose (US v. Causby, 328 U.S. 256 , 1946).
Note: Mere technical change which does not change the
Q: The National Historical Institute declared the substance of the contract, and which still leaves an
efficacious remedy for enforcement does NOT impair the
parcel of land owned by Petitioners as a national
obligation of contracts. A valid exercise of police power is
historical landmark, because it was the site of the superior to obligation of contracts.
birth of Felix Manalo, the founder of Iglesia ni Cristo.
The Republic of the Philippines filed an action to Q: When can this be applied?
appropriate the land. Petitioners argued that the
expropriation was not for a public purpose. Is this A: This constitutional provision is applicable only if
correct? the obligation of contract is impaired by legislative
act (statute, ordinance, etc.). The act need not be by
A: Public use should not be restricted to the a legislative office; but it should be legislative in
traditional uses. The taking is for a public use because nature. Furthermore, the impairment must be
of the contribution of Felix Manalo to the culture and substantial (Philippine Rural Electric Cooperatives
history of the Philippines. (Manosca v. CA , G.R. No. Assoc. v. DILG Secretary, G.R. 143076, June 10, 2003).
106440, Jan. 29, 1996)
Q: May laws be enacted even it might result to
Q: Is expropriation of private lands for slum impairment of contracts?
clearance and urban development for public
purpose? A:
GR: Valid contracts should be respected by the
A: Yes. The Constitution itself allows the State to legislature and not tampered with by subsequent
undertake, for the common good and in cooperation laws that will change the intention of the parties or
with the private sector, a continuing program of modify their rights and obligations. The will of the
urban land reform and housing which will make at parties to a contract must prevail. A later law which
affordable cost decent housing and basic services to enlarges, abridges, or in any manner changes the
underprivileged and homeless citizens in urban intent of the parties to the contract necessarily
centers and resettlement areas. The expropriation of impairs the contract itself and cannot be given
private property for the purpose of socialized housing retroactive effect without violating the constitutional
for the marginalized sector is in furtherance of the prohibition against impairment of contracts.
social justice provision under Section 1, Article XIII of (Sangalang v. IAC, G.R. No. 71169, Dec. 22, 1988)
the Constitution. To this end, the State shall require
the acquisition, ownership, use and disposition of XPN: Enactment of laws pursuant to the
property and its increments. Thus, it follows that the exercise of police power because public
low cost housing project of respondent NHA on the welfare prevails over private rights. It is
expropriated lots is compliant with the public use deemed embedded in every contract a
requirement. It is for public purpose even if the reservation of the States exercise of police
developed area is later sold to private homeowners, power, eminent domain and taxation, so
commercial firms, entertainment and service long as it deals with a matter affecting the
companies and other private concerns. (Reyes v. public welfare.(PNB v Remigio, G.R. No
NHA,G.R. No. 47511, Jan. 20, 2003) 78508, Mar. 21, 1994)
CONTRACT CLAUSE
Q: What constitutes impairment?
CONTEMPORARY APPLICATION OF THE
A: Any statute which introduces a change into the
CONTRACT CLAUSE
express terms of the contract, or its legal
construction, or its validity, or its discharge, or the
Q: When does a law impair the obligation of
contracts?

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remedy for its enforcement, impairs the contract. Wide Realty and Development Corp. v Puerto Azul
(Blacks Law Dictionary) Land, Inc., G.R. No. 180893, Nov 25, 2009)

Note: Franchises, privileges, licenses, etc. do not come LEGAL ASSISTANCE AND FREE ACCESS TO COURTS
within the context of the provision, since these things are
subject to amendment, alteration or repeal by Congress Q: What is the significance of this provision?
when the common good so requires.
A: It is the basis for the provision of Section 17, Rule 5
Q: PAL (a former GOCC) and Kuwait Airways entered
of the New Rules of Court allowing litigation in forma
into a Commercial Agreement and Joint Services
pauperis. Those protected include low paid
Agreement. The Commercial Agreement established
employees, domestic servants and laborers.
a joint commercial arrangement whereby Philippine
(Cabangis v. Almeda Lopez,G.R. No. 47685, Sept. 20,
Airlines and Kuwait Airways were to jointly operate
1940)
the Manila-Kuwait (and vice versa) route, utilizing
the planes and services of Kuwait Airways.
They need not be persons so poor that they must be
Subsequently, Philippine Airlines was privatized.
supported at public expense. It suffices that the
After 14 years, delegations from the Philippine
plaintiff is indigent. And the difference between
government and Kuwait government met in Kuwait.
paupers and indigent persons is that the latter are
The talks culminated in a Confidential Memorandum
persons who have no property or sources of income
of Understanding (CMU). Can the execution of the
sufficient for their support aside from their own labor
Commercial Memorandum of Understanding (CMU)
though self-supporting when able to work and in
between Kuwait and Philippine Government
employment. (Acar v. Rosal, G.R. No. L-21707, March
automatically terminate the aforementioned
18, 1967)
agreement?
Q: May the court grant the exemption of payment of
A: No, because an act of the Phil. Govt negating the
legal fees to foundations/institutions working for
commercial agreement between the two airlines
indigent and underprivileged people?
would infringe the vested rights of a private
individual. Since PAL was already under private
A: No, according to Sec. 19, Rule 141, Rules of Court,
ownership at the time the CMU was entered into, the
only a natural party litigant may be regarded as an
Court cannot presume that any and all commitments
indigent litigant that can be exempted from payment
made by the Phil. Govt are unilaterally binding on the
of legal fees. Exemption cannot be extended to the
carrier even if this comes at the expense of
foundations even if they are working for the indigent
diplomatic embarrassment. Even granting that the
and underprivileged people. (A. M. No. 09-6-9-SC)
police power of the State may be exercised to impair
the vested rights of privately-owned airlines, the
RIGHTS OF SUSPECTS
deprivation of property still requires due process of
law. (Kuwait Airline Corporation v. PAL, G.R. No.
Q: What are the Miranda rights?
156087, May 8, 2009)
A: These are the rights to which a person under
Q: May there be a valid impairment of contracts
custodial investigation is entitled. These rights are:
even if the act in question is done by an entity other
1. Right to remain silent
than the legislature?
2. Right to competent and independent counsel,
preferably of his own choice
A: Yes. The act need not be by a legislative office; but
3. Right to be reminded that if he cannot afford the
it should be legislative in nature. (Philippine Rural
services of counsel, he would be provided with
Electric Cooperatives Assoc. v. DILG Sec, G.R. No.
one
143076, June 10, 2003)
4. Right to be informed of his rights
5. Right against torture, force, violence, threat,
Q: May non-impairment clause be invoked in a pure
intimidation or any other means which vitiate the
contract between the parties?
free will
6. Right against secret detention places, solitary,
A: No, non-impairment clause cannot be invoked if
incommunicado, or similar forms of detention
there is neither public interest involved nor a law that
7. Right to have confessions or admissions obtained
supports the claim. It can only be invoked if it is
in violation of these rights considered
against the government or when the government
intervenes in contract between the parties. (Pacific

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inadmissible in evidence (Miranda v Arizona, 384 consistently held, following the stricter view, that the rights
U.S. 436, 1966) begin to be available only when the person is already in
custody. (People v. Ting LanUy, G.R. No. 157399, Nov.17,
Note: Even if the person consents to answer questions 2005)
without the assistance of counsel, the moment he asks for a
lawyer at any point in the investigation, the interrogation Furthermore, in the case of People v. Reyes, GR No. 178300,
must cease until an attorney is present. Mar. 17, 2009, we can find this line: The mantle of
protection afforded by the above-quoted provision covers
The Miranda Rights are available to avoid involuntary the period from the time a person is taken into custody for
extrajudicial confession. the investigation of his possible participation in the
commission of a crime of from the time he was singled out
The purpose of providing counsel to a person under as a suspect in the commission of the offense although not
custodial investigation is to curb the police-state practice of yet in custody.
extracting a confession that leads appellant to make self-
incriminating statements. (People vs. Rapeza, G.R. 169431, Q: When are the Miranda rights unavailable?
April 3, 2007)
A:
Q: What are the rights and limitations of a person in 1. During a police line-up, unless admissions or
a preliminary investigation? confessions are being elicited from the suspect
(Gamboa Vs. Cruz, G.R. No. L-56291, June 27,
A: 1988)
1. He cannot cross-examine 2. During administrative investigations (Sebastian,
2. No right to counsel except when confession is Jr v Garchitorena, G.R. No 114028)
being obtained 3. Confessions made by an accused at the time he
3. He cannot file complaint or information without voluntarily surrendered to the police or outside
authority the context of a formal investigation; (People v
4. Right to be present not absolute Baloloy, G.R. No 140740, April 12, 2002) and
5. No dismissal without approval 4. Statements made to a private person (People v
6. Right to discovery proceedings Tawat, G.R. No 62871, May 25, 1985)
5. Forensic investigation is not tantamount to
AVAILABILITY custodial investigation, therefore Miranda rights
is not applicable (People v. Tranca, 235 SCRA 455,
Q: When do these rights become available? 1994)

A: During custodial investigation or as soon as the REQUISITES


investigation ceases to be a general inquiry unto an
unsolved crime and direction is aimed upon a Q: What are the requisites for a valid waiver of
particular suspect, as when the suspect who has been these rights?
taken into police custody and to whom the police
would then direct interrogatory questions which tend A:
to elicit incriminating statements. 1. Made voluntarily, knowingly and intelligently
2. Waiver should be made in writing
Note: Sec. 2 of R.A. 7438 provides that custodial 3. Made with the presence of counsel (People vs
investigation shall include the practice of issuing an Galit, GR. No. L-51770, Mar. 20, 1985)
invitation to a person who is under investigation in
connection with an offense he is suspected to have
Q: Is a confession given to a mayor admissible in
committed
court?
Rights during custodial investigation apply only against
testimonial compulsion and not when the body of the A: Yes, if such confession was given to the mayor as a
accused is proposed to be examined (i.e. urine sample; confidant and not as a law enforcement officer. In
photographs; measurements; garments; shoes) which is a such case, the uncounselled confession did not
purely mechanical act. violate the suspects constitutional rights. (People v
Zuela, G.R. No 112177, Jan. 28, 2000)
In the case of Galman v. Pamaran, it was held that the
constitutional safeguard is applied notwithstanding that the Note: What the Constitution bars is the compulsory
person is not yet arrested or under detention at the time. disclosure of the incriminating facts or confessions. The
However, Fr. Bernas has qualified this statement by saying rights under Sec. 12 are guarantees to preclude the
that jurisprudence under the 1987 Constitution has slightest use of coercion by the State, and not to prevent

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121 FACULTY OF CIVIL LAW
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the suspect from freely and voluntarily telling the truth. RIGHTS OF THE ACCUSED
(People v. Andan, G.R. No. 116437, Mar. 3, 1997)
Q: What are the rights of the accused?
Q: Decide on the admissibility as evidence of
confessions given to news reporters and/or media A: Right to:
and videotaped confessions. 1. Due process
2. Be presumed innocent
A: Confessions given in response to a question by 3. Be heard by himself and counsel
news reporters, not policemen, are admissible. 4. Be informed of the nature and cause of the
Where the suspect gave spontaneous answers to a accusation against him
televised interview by several press reporters, his 5. A speedy, impartial and public trial
answers are deemed to be voluntary and are 6. Meet the witnesses face to face
admissible. 7. Have compulsory process to secure the
attendance of witnesses and production of
Videotaped confessions are admissible, where it is evidence on his behalf
shown that the accused unburdened his guilt 8. Against double jeopardy
willingly, openly and publicly in the presence of the 9. Bail
newsmen. Such confessions do not form part of
confessions in custodial investigations as it was not CRIMINAL DUE PROCESS
given to police men but to media in attempt to solicit
sympathy and forgiveness from the public. Q: What are the requisites of criminal due process?

However, due to inherent danger of these videotaped A:


confessions, they must be accepted with extreme 1. Accused is heard by a court of competent
caution. They should be presumed involuntary, as jurisdiction
there may be connivance between the police and 2. Accused is proceeded against under the orderly
media men. (People v. Endino, G.R. No. 133026, Feb. processes of law
20, 2001) 3. Accused is given notice and opportunity to be
heard
Q: What is the fruit of the poisonous tree doctrine? 4. Judgment rendered was within the authority of a
constitutional law
A: This doctrine states that once the primary source
(the tree) is shown to have been unlawfully obtained, Q: Is right to appeal a part of due process?
any secondary or derivative evidence (the fruit)
derived from it is also inadmissible. The rule is based A: No, the right to appeal is neither a natural right nor
on the principle that evidence illegally obtained by part of due process. It is a mere statutory right, but
the State should not be used to gain other evidence, once given, denial constitutes violation of due
because the originally illegally obtained evidence process
taints all evidence subsequently obtained.
RIGHT TO BAIL
WAIVER
Q: What is bail?
Q: What are the rights that may be waived?
A: It is the security given for the release of a person in
A: custody of law, furnished by him or a bondsman,
1. Right to remain silent conditioned upon his appearance before any court as
2. Right to counsel required (Sec. 1, Rule 114, Rules of Court).

Note: Q: What are the constitutional principles on bail?


1. However, the right to be informed of these rights
cannot be waived; and A:
2. The waiver must be in writing and in the GR: All persons shall, before conviction, be bailable.
presence of counsel. (Political Law Reviewer,
Suarez, p. 295, 2011). XPN: Those who are charged with offenses
punishable by reclusion perpetua when the

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evidence of guilt is strong. (Political Law when evidence of guilt is not strong (Sec. 7,
Reviewer, Suarez , 2011). Rule 114); and
c. A child in conflict with the law charged with
a. The suspension of the privilege of the writ of an offense punishable by death, reclusion
habeas corpus does not impair the right to bail. perpetua or life imprisonment when
evidence of guilt is not strong (Sec. 28, A.M.
b. Excessive bail is not required. (Criminal No. 02-1-18-SC).
Procedure, Riano, p. 312)
Note: The prosecution cannot adduce evidence for the
Q: What is the rationale behind the right to bail? denial of bail where it is a matter of right. However where
the grant of bail is discretionary, the prosecution may show
proof to deny the bail.
A: An accused is presumed innocent until his guilt is
proven beyond reasonable doubt by final judgment.
The right to bail gives the accused not only an Q: When shall bail be denied?
opportunity to obtain provisional liberty but also the
chance to prepare for trial while continuing his usual A: If the penalty imposed by the trial court is
work or employment. The bail posted by the accused imprisonment exceeding six (6) years, the accused
for his provisional liberty is, in effect, an assurance shall be denied bail, or his bail shall be cancelled upon
that the accused will attend the court proceedings, a showing by the prosecution, with notice to the
particularly when his presence is required. In short, accused, of the following or other similar
the purpose of the bail is to relieve the accused from circumstances:
imprisonment until his conviction and at the time his a. That he is a recidivist, quasi-recidivist, or
appearance at the trial is secured.(Almeda vs. Villaluz, habitual delinquent, or has committed the
66 SCRA 38 (1975) (Suarez, Political Law Reviewer, p. crime aggravated by the circumstance of
302, 2011). reiteration;
b. That he has previously escaped from legal
Q: When may the right to bail be invoked? confinement, evaded sentence, or violated
the conditions of his bail without valid
A: The right to bail may be invoked once detention justification;
commences even if no formal charges have yet to be c. That he committed the offense while under
filed.(Teehankee v. Rovira, G.R.No. L-101, Dec. 20, probation, parole, or conditional pardon;
1945) d. That the circumstances of his case indicate
the probability of flight if released on bail; or
Q: When is bail a matter of right and when is it a e. That there is undue risk that he may commit
matter of discretion? another crime during the pendency of the
appeal.
A:
1. Bail is a matter of right The appellate court may, motu proprio or on motion
a. Before or after conviction by the of any party, review the resolution of the RTC after
metropolitan and municipal trial courts, and notice to the adverse party in either case. (Sec. 5,
b. Before conviction by the RTC of an offense Rule 114, Rules of Court)
not punishable by death, reclusion perpetua
Note: The conduct of petitioner in applying for bail
or life imprisonment (Sec. 4, Rule 114).
indicated that he had waived his objection to whatever
c. Before final conviction by all children in defect, if any, in the preliminary examination conducted by
conflict with the law for an offense not respondent judge (Luna v. Plaza, G.R. No.L-27511, Nov. 29,
punishable by reclusion perpetua or life 1968) The right to bail is available from the very moment of
imprisonment. arrest (which may be before or after the filing of formal
charges in court) up to the time of conviction by final
2. Bail is a matter of discretion judgment (which means after appeal). No charge need be
a. Upon conviction by the RTC of an offense filed formally before one can file for bail, so long as one is
under arrest. (Heras Teehankee v. Rovira, G.R. No. L-101,
not punishable by death, reclusion perpetua
Dec. 20 1945)
or life imprisonment
b. Regardless of the stage of the criminal
Q: Should the bail be granted automatically in case
prosecution, a person charged with a capital
of application for such pending appeal?
offense, or an offense punishable by
reclusion perpetua or life imprisonment,

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A: No. The discretionary nature of the grant of bail has no right to presume that the prosecutor knows
pending appeal does not mean that bail should what he is doing on account of familiarity with the
automatically be granted absent any of the case. (Joselito V. Narciso v Flor Marle Sta. Romana-
circumstances mentioned in the third paragraph of Cruz, G.R. No. 134504, March 17, 2000)**from
Sec5, Rule 114 of the Rules of Court (Jose Antonio Sandoval Notes
Leviste v. Court of Appeals, et al., G.R.No. 189122,
March 17, 2010). Note: a hearing on the motion for bail must be conducted
by the judge to determine whether or not the evidence of
Note: The third paragraph of Sec5, Rule 114 applies to two guilt is strong. (Baylon v. Judge Sison, A.M. No. 92-7-360-0,
scenarios where the penalty imposed on the appellant Apr. 6, 1995)
applying for bail is imprisonment exceeding six years. The
first scenario deals with the circumstances enumerated in Q: Why are capital offenses or offenses punishable
the said paragraph not being present. The second scenario by reclusion perpetua not bailable?
contemplates existence of at least one of the said
circumstances. In the first situation, bail is a matter of A: Due to the gravity of the offenses committed, the
discretion. This means that, if none of the circumstances
confinement of a person accused of said offenses
mentioned in the third paragraph of Section 5, Rule 114 is
insures his attendance in the court proceedings than
present, the appellate court has the discretion to grant or
deny bail. An application for bail pending appeal may be if he is given provisional liberty on account of a bail
denied even if the bail-negating circumstances in the third posted by him. (Suarez, Political Law Reviewer, p. 302
paragraph are absent. On the other hand, in the second , 2011).
situation, the appellate court exercises a more stringent
discretion, that is, to carefully ascertain whether any of the Q: What are the factors to be considered in setting
enumerated circumstances in fact exists. If it so determines, the amount of bail?
it has no other option except to deny or revoke bail pending
appeal (Jose Antonio Leviste v. Court of Appeals, et al.,
A:
G.R.No. 189122, March 17, 2010).
1. Financial ability of accused
2. Nature and circumstances of offense
Q: Who are not entitled to bail?
3. Penalty for offense
4. Character and reputation of accused
A:
5. Age and health of accused
1. Persons charged with offenses punishable by
6. Weight of evidence against him
reclusion perpetua or death, when evidence of
7. Probability of appearance at trial
guilt is strong
8. Forfeiture of other bail
2. Persons convicted by the trial court. Bail is only
9. Whether he was a fugitive from justice when
discretionary pending appeal
arrested
3. Persons who are members of the AFP facing a
10. Pendency of other cases where he is on bail
court martial
(Sunga v. Judge Salud, A.M. No. 2205-MJ, Nov.
19, 1981)
Q: Should there be a hearing?
Q: Can the court require arraignment before the
A: Whether bail is a matter of right or of discretion,
grant of bail?
reasonable notice of hearing is required to be given
the prosecutor, or at least he must be asked for his
A: No. The grant of bail should not be conditioned
recommendation, because in fixing the amount of
upon prior arraignment of the accused. In cases where
bail, the judge is required to take into account a
bail is authorized, bail should be granted before
number of factors. (Cortes v. Judge Catral, A.M. No.
arraignment, otherwise the accused will be precluded
RTJ-97-1387, Sept. 10, 1997)
from filing a motion to quash which is to be done
before arraignment. If the information is quashed and
Q: In bail application, if the prosecutor interposes no
the case is dismissed, there would be no need for the
objection to the accused charged with capital
arraignment of the accused. To condition the grant of
offense, may the judge grant the application without
bail on his arraignment would be to place him in a
court hearing?
position where he has to choose between (1) filing a
motion to quash and thus delay his release until his
A: No, judges are required to conduct hearings if the
motion can be resolved because prior to its resolution,
accused is being charged with a capital offense.
he cannot be arraigned, and (2) foregoing the filing of
Absence of objection from the prosecution is never a
a motion to quash so that he can be arraigned at once
basis for the grant of bail in such cases, for the judge
and thereafter be released on bail. These scenarios

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undermine the accuseds constitutional right not to be Q: What are the rules regarding presumption of
put on trial except upon valid complaint or innocence?
information sufficient to charge him with a crime and
his right to bail (Lavides v. Court of Appeals, G.R. No. A:
129670, February 1, 2000). 1. The prosecution has the burden to prove the
guilt of the accused beyond reasonable doubt.
Note: It should not be taken to mean that the hearing (People vs. Colcol., Jr., 219 SCRA 107, February
on a petition for bail should at all times precede 19, 1993)
arraignment, because the rule is that a person 2. The prosecution must rely on the strength of its
deprived of his liberty by virtue of his arrest or evidence and not in the weakness of the defense.
voluntary surrender may apply for bail as soon as he is (People vs. Solis, 182 SCRA 182, February 14,
deprived of his liberty, even before a complaint or 1990)
information is filed against him (Serapio v. 3. The right to be presumed innocent must be
Sandiganbayan, G.R. No. 148468, January 28, 2003). offset by guilt beyond reasonable doubt. (People
vs. Ortiz, 198 SCRA 836, December 3, 1990)
Q: Is the right to bail available to an alien during the 4. Any doubt as to the guilt of the accused must be
pendency of deportation proceedings? resolved in his favor and against the state.
(People vs. Mortos, 226 SCRA 29, September 1,
A: Yes, provided that potential extraditee must prove 1993)
by clear and convincing proof that he is not a flight
risk and will abide with all orders and processes of Q: The RTC QC rendered a decision convicting Judge
the extradition court. (Government of Hong Kong Bueno of violation of R.A. 7610. The criminal cases
Special Administrative Region v. Olalia Jr., G.R are now on appeal before the Court of Appeals.
153675, Apr. 19, 2007) Meanwhile, Senior State Prosecutor Guinto (SSP
Guinto) suggested the immediate suspension of
Q: Does the posting of a bail bond constitute a Bueno. SSP Guinto posited that since Judge Bueno
waiver of any irregularity attending the arrest of the stands convicted of two counts of child abuse, her
person? moral qualification as a judge is in question. Judge
Bueno manifested that she still enjoys the
A: No, the application or admission of the accused to presumption of innocence since the criminal cases
bail shall not bar him from challenging both the are on appeal. Does she still enjoy the presumption
validity of his arrest or the legality of the warrant of innocence if the judgment convicting her is on
issued therefore, provided that he raises them before appeal?
he enters his plea. It shall not likewise bar the
accused from assailing the regularity or questioning A: Judge Bueno still enjoys constitutional
the absence of a preliminary investigation of the presumption of innocence. Since her conviction of
charge against him provided the same is raised the crime of child abuse is currently on appeal before
before he enters his plea. (Rule 114, Sec. 26, Rules of the CA, the same has not yet attained finality. As
Court) such, she still enjoys the constitutional presumption
of innocence. It must be remembered that the
PRESUMPTION OF INNOCENCE existence of a presumption indicating the guilt of the
accused does not in itself destroy the constitutional
Q: How is the presumption applied? presumption of innocence unless the inculpating
presumption, together with all the evidence, or the
A: Every circumstance favoring the innocence of the lack of any evidence or explanation, proves the
accused must be taken into account. The proof accuseds guilt beyond a reasonable doubt. Until the
against him must survive the test of reason; the accuseds guilt is shown in this manner, the
strongest suspicion must not be permitted to sway presumption of innocence continues (Re: Conviction
judgment (People v. Austria, G.R. No. 55109, Apr. 8, of Judge Adoracion G. Angeles, A.M. No. 06-9-545-
1991) RTC, Jan. 31, 2008)

Q: Who may invoke the presumption of innocence? Q: What is the Equipoise Rule?

A: It can be invoked only by an individual accused of a A: Under the equipoise rule, when the evidence of
criminal offense; a corporate entity has no both sides are equally balanced, the constitutional
personality to invoke the same. presumption of innocence should tilt the scales in

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favor of the accused (Corpuz v. People, G.R. No. Q: Several individuals were tried and convicted of
74259, Feb. 14, 1991) Piracy in Philippine Waters as defined in PD 532.
However, it was discovered that the lawyer, Ms.
RIGHT TO BE HEARD Cantos, who represented them was not a member of
the bar although evidence shows that he was
Q: In a murder case, Christian was convicted in the knowledgeable in the rules of legal procedure. The
trial court but was not given the right to testify and accused now allege that their conviction should be
to present additional evidence on their behalf. Is the set aside since they were deprived of due process.
conviction correct? Are they correct?

A: No, an accused has the constitutional right to be A: No. Sec. 1of Rule 115 of the Revised Rules of
heard by himself and counsel and the right to Criminal Procedure states that "upon motion, the
testify as a witness in his own behalf . The denial of accused may be allowed to defend himself in person
such rights is a denial of due process. The when it sufficiently appears to the court that he can
constitutional right of the accused to be heard in his properly protect his rights without the assistance of
defense is inviolate. No court of justice under our counsel." By analogy, but without prejudice to the
system of government has the power to deprive him sanctions imposed by law for the illegal practice of
of that right.(People vs. Lumague, G.R. No. L-53586) law, it is amply shown that the rights of accused were
sufficiently and properly protected by the appearance
ASSISTANCE OF COUNSEL of Ms. Cantos. An examination of the record will
show that he knew the technical rules of procedure.
Q: What is the meaning of the right to counsel? Hence, there was a valid waiver of the right to
sufficient representation during the trial, considering
A: The right of a person under investigation is to have that it was unequivocally, knowingly, and intelligently
a competent and independent counsel preferably of made and with the full assistance of a bona fide
his own choice. The purpose is to preclude the lawyer, Atty. Dani Lacap. Accordingly, denial of due
slightest coercion as would lead the accused to admit process cannot be successfully invoked where a valid
something else. (People vs Evanoria, 209 SCRA 577, waiver of rights has been made. (People v. Tulin, G.R.
June 8, 1992) 111709, Aug. 30, 2001)

Q: Does this right pertain to mere presence of a Note: In Flores v. Ruiz, G.R. No. L-35707, May 31, 1979, the
lawyer in the courtroom? Supreme Court held that the right to counsel during the
trial cannot be waived, because even the most intelligent
or educated man may have no skill in the science of law,
A: No. The accused must be amply accorded legal
particularly in the rules of procedure, and without counsel,
assistance extended by a counsel who commits he may be convicted not because he is guilty but because
himself to the cause of the defense and acts he does not know how to establish his innocence.
accordingly; an efficient and truly decisive legal
assistance, and not simply a perfunctory Q: Mao was criminally charged in court. He hired
representation. (People v. Bermas, G.R. No. 120420, Justin as counsel who handles high-profile clients.
Apr. 21, 1999) Due to his many clients, Justin cannot attend the
hearing of the case of Mao. He requested many
Q: Can a PAO lawyer be considered an independent times to have the hearings postponed. The case
counsel within the contemplation of Sec 12, Art III, dragged on slowly. Judge Oliver Punay, in his desire
1987 Constitution? to finish the case as early as practicable under the
continuous trial system, appointed a counsel de
A: Yes, a PAO lawyer can be considered an officio and withdrew the counsel de parte. Is the
independent counsel within the contemplation of the action of the judge valid?
constitution considering that he is not a special
counsel, public or private prosecutor, counsel of the A: Yes, the appointment of counsel de officio under
police, or a municipal attorney whose interest is such circumstances is not proscribed under the
admittedly adverse of the accused-appellant. Thus, Constitution. The preferential discretion is not
the assistance of a PAO lawyer satisfies the absolute as would enable an accused to choose a
constitutional requirement of a competent and particular counsel to the exclusion of others equally
independent counsel for the accused. (People v. capable. The choice of counsel by the accused in a
Bacor, 306 SCRA 552, April 30, 1999) criminal prosecution is not a plenary one. If the
counsel deliberately makes himself scarce the court is

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not precluded from appointing a counsel de officio Q: Mayor Pineda arrived and proceeded to the
whom it considers competent and independent to investigation room. Upon seeing the mayor,
enable the trial to proceed until the counsel of choice appellant Flores approached him and whispered a
enters his appearance. Otherwise the pace of criminal request to talk privately. The mayor led appellant to
prosecution will entirely be dictated by the accused the office of the Chief of Police and there, Flores
to the detriment of the eventual resolution of the broke down and said "Mayor, patawarin mo ako! I
case. (People v. Larranaga, G.R. No. 138874-75, Feb. will tell you the truth. I am the one who killed
3, 2004) Villaroman." The mayor opened the door of the
room to let the public and media representatives
Q: A police officer told Alex, Ralph, Nats, Andrew witness the confession. The mayor first asked for a
and Ojay to be in a police line-up with other five lawyer to assist appellant but since no lawyer was
suspects. Nats told the police that he wants to be available she ordered the proceedings
excused in the police line-up until his lawyer, Atty. photographed and videotaped. In the presence of
Barbaza, arrives. Is Nats entitled to the right to the mayor, the police, representatives of the media
counsel at that stage? and appellant's own wife and son, appellant
confessed his guilt. His confession was captured on
A: No. The investigation has not yet commenced. videotape and covered by the media nationwide.
Did such uncounselled confession violate the
Q: At what stage shall Nats have the right to suspects constitutional rights?
counsel?
A: No, a confession given to the mayor may be
A: Nats shall have the right to counsel from the admitted in evidence if such confession by the
moment the investigating officer starts to ask suspect was given to the mayor as a confidant and
questions to illicit information or confession or not as a law enforcement officer. In such a case, the
admission. This right, however, can be waived but uncounselled confession did not violate the suspects
said waiver shall be made in writing and in the constitutional rights. What the constitution bars is
presence of counsel. (Gamboa vs Judge Cruz GR. No. the compulsory disclosure of incriminating facts or
L-56291, Jun. 27, 1988) , confessions. The rights under Section 12 are
guarantees to preclude the slightest use of coercion
Q: Ian Loy is in police custody. Bothered and by the State and not to prevent the suspect from
remorseful, he spontaneously admitted guilt and freely and voluntarily telling the truth. (People vs.
that he is the one who killed Dr. Neil. Is his Andan,G.R. No. 116437, March 3, 1997)
confession admissible?
Q: Accused Antonio Lauga was charged and
A: Yes. Ian Loys statement is a spontaneous convicted of the crime of rape of his thirteen-year
statement. It was not elicited through questioning by old daughter, AAA. During the proceedings, Juan
the authorities. (People vs. Cabiles, G.R. No. 112035, Paulo Nepomuceno, a bantaybayan in the barangay,
Jan. 16, 1998) testified that the accused confessed that he had in
fact raped AAA. The trial court found him guilty of
Q: Arthur had no counsel while giving his statement the crime of rape. Lauga contends that the
because Atty. Sol Santos, whom he called by confession he made to Nepomuceno is inadmissible
telephone encountered heavy traffic along Sucat in evidence. Is his contention tenable?
Road. The interrogation was about to end when
Atty. Santos arrived. Atty. Santos immediately A: Yes. A barangay bantaybayan is considered a
requested the police investigator to allow him to public officer and any extrajudicial confession made
talk to Arthur. She discussed with Arthur regarding to him without the assistance of counsel is
the statements he already made. Thereafter, Arthur inadmissible in evidence as provided for under
signed the statement. Is the constitutional Section 12, Article III of the Constitution. (People vs.
requirement about the presence of counsel Lauga, GR. No. 186228, March 15, 2010)
complied with?

A: No, the right to counsel was a right to effective


counsel from the first moment of questioning and all
throughout. (People vs. De Jesus, G.R. No. 91535,
Sept. 2, 1992)

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RIGHT TO BE INFORMED OF THE NATURE AND language that it is not possible for men of ordinary
CAUSE OF ACCUSATION intelligence to determine therefrom what acts or
omissions are punished. In such a case, the law is
Q: What is the rationale for this right? deemed void.

A: Q: May a person be convicted of the crime proved if


1. To furnish the accused with such a description of the same is different from the crime charged?
the charge against him as will enable him to
make his defense A: Yes, under the variance doctrine, in spite of the
2. To avail himself of his conviction or acquittal for difference between the crime that was charged and
protection against further prosecution for the that which was eventually proved, the accused may
same cause still be convicted of whatever offense that was
3. To inform the court of the facts alleged so that it proved even if not specifically set out in the
may decide whether they are sufficient in law to information provided it is necessarily included in the
support a conviction, if one should be had (US v. crime charged. (Teves v. Sandiganbayan, G.R. No.
Karelsen G.R. No. 1376, Jan. 21, 1904) 154182, Dec. 17, 2004)

Q: What would determine the nature and cause of Q: May the right to be informed of the nature and
accusation? cause of accusation be waived?

A: Description, not designation of the offense, is A: No. However, the defense may waive the right to
controlling. The real nature of the crime charged is enter a plea and let the court enter a plea of not
determined from the recital of facts in the guilty.
information. It is neither determined based on the
caption or preamble thereof nor from the RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
specification of the provision of the law allegedly
violated. Q: What is meant by speedy trial?

Q: What are the requisites for properly informing A: The term speedy means free from vexatious,
the accused of the nature and cause of accusation? capricious and oppressive delays. The factors to be
considered are:
A: 1. Time expired from the filing of information
1. Information must state the name of the accused 2. Length of delay
2. Designation given to the offense by statute 3. Reasons for the delay
3. Statement of the acts or omission so complained 4. Assertion or non-assertion of the right by the
of as constituting the offense accused
4. Name of the offended party 5. Prejudice caused to the defendant
5. Approximate time and date of commission of the
offense Note: The denial of the right to speedy trial is a ground for
6. Place where offense was committed acquittal.
7. Every element of the offense must be alleged in
the complaint or information Q: What is meant by impartial trial?

Q: What happens if the information fails to allege A: The accused is entitled to cold neutrality of an
the material elements of the offense? impartial judge, one who is free from interest or bias.

A: The accused cannot be convicted thereof even if Q: Why must the trial be public?
the prosecution is able to present evidence during
the trial with respect to such elements. A: It is in order to prevent possible abuses which may
be committed against the accused. The attendance at
Q: How is the void for vagueness doctrine related to the trial is open to all, irrespective of their
this right? relationship to the accused.

A: The accused is also denied the right to be informed XPN: If the evidence to be adduced is
of the charge against him, and to due process as well, offensive to decency or public morals, the
where the statute itself is couched in such indefinite public may be excluded.

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Q: Can the public be excluded from the courtroom production of documents and things needed in the
without violating the right of the accused to a public prosecution or defense of a case?
trial?
A:
A: Yes, under Section 21, Rule 119 of the Rules of 1. Subpoena ad testificandum and subpoena duces
Criminal Procedure it is provided that the judge may tecum
motu propio exclude the public from the courtroom 2. Depositions and other modes of discovery
when the evidence to be adduced is offensive to 3. Perpetuation of testimonies
decency and public morals.
Q: What is the difference between subpoena ad
Q: Is there a difference between the right to speedy testificandum and subpoena duces tecum?
trial, as guaranteed in Section 14 (2), Article III, and
speedy disposition of cases, as guaranteed in Section A:
16? AD TESTIFICANDUM DUCES TECUM
A process directed to a person The person is also
A: Yes. The right to speedy trial particularly refers to requiring him to attend and to required to bring
criminal prosecutions which are at the trial stage, testify at the hearing or trial of with him any
while the right to speedy disposition of cases applies an action, or at any books, documents,
to all cases before judicial, quasi-judicial or investigation conducted by or other things
administrative bodies. (Political Law Reviewer, Suarez competent authority, or for the under his control.
, p. 362, 2011). taking of his deposition.

RIGHT OF CONFRONTATION Q: What is the requirement for the issuance of


subpoena duces tecum?
Q: What is the purpose of the right of
confrontation? A: The subpoena shall contain a reasonable
description of the books, documents or things
A: demanded which must appear to the court as prima
1. To afford the accused an opportunity to test the facie relevant.
testimony of a witness by cross-examination;
2. To allow the judge to observe the deportment of Q: What are the requirements for the exercise of the
the witness. right to secure attendance of witness?

Q: What is the effect of failure to cross-examine? A:


1. The witness is really material
A: If the failure of the accused to cross-examine a 2. The attendance of the witness was previously
witness is due to his own fault or was not due to the obtained
fault of the prosecution, the testimony of the witness 3. The witness will be available at the time desired
should not be excluded. 4. No similar evidence could be obtained

Q: Are affidavits of witnesses who are not presented Q: When is the right to cross-examine demandable?
during trial admissible?
A: It is demandable only during trials. Thus, it cannot
A: No. They are inadmissible for being hearsay. The be availed of during preliminary investigations.
accused is denied the opportunity to cross-examine
the witnesses. Q: What are the principal exceptions to the right of
confrontation?
Note: Depositions are admissible under circumstances
provided by the Rules of Court. A:
1. Admissibility of dying declarations and all
RIGHT TO COMPULSORY PROCESS TO SECURE exceptions to the hearsay rule
ATTENDANCE OF WITNESS AND PRODUCTION OF 2. Trial in absentia under Sec.14 (2) of Art. III of the
EVIDENCE Constitution
3. With respect to child testimony
Q: What are the means available to the parties to
compel the attendance of witnesses and the

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TRIAL IN ABSENTIA Q: What are the requisites for the suspension of the
privilege of the writ of habeas corpus?
Q: When may trial in absentia proceed?
A:
A: Trial in absentia may proceed if the following 1. There must be an invasion or rebellion; and
requisites are present: 2. Public safety requires the suspension
1. Accused has been validly arraigned
2. Accused has been duly notified of the dates of Note: The invasion and rebellion must be actual and not
hearing merely imminent.
3. Failure to appear is unjustifiable
Q: To what situations does the writ apply?
Q: Is the presence of the accused mandatory?
A:
A: Yes, in the following instances: 1. Applies only to persons judicially charged for
1. During arraignment and plea rebellion or offenses inherent in or directly
2. During trial, for identification, unless the accused connected with invasion; and
has already stipulated on his identity during the 2. Anyone arrested or detained during suspension
pre-trial and that he is the one who will be must be charged within 3 days. Otherwise, he
identified by the witnesses as the accused in the should be released.
criminal case
3. During promulgation of sentence, unless for a Q: May the Writ of Habeas Corpus be used as a
light offense means of obtaining evidence on the whereabouts of
a person?
Note: While the accused is entitled to be present during
promulgation of judgment, the absence of his counsel A: In Martinez v. Mendoza (499 SCRA 234 2006), the
during such promulgation does not affect its validity. Court held that the grant of relief in a habeas corpus
proceeding is not predicated on the disappearance of
Q: Can there be promulgation of judgment in a person, but on his illegal detention. It may not be
absentia? used as a means of obtaining evidence on the
whereabouts of a person, or as a means of finding out
A: Promulgation of judgment in absentia is valid who has specifically abducted or caused the
provided that the essential elements are present: disappearance of a certain person. When forcible
1. Judgment be recorded in the criminal docket taking and disappearance not arrest and detention
2. Copy be served upon accused or counsel have been alleged, the proper remedy is not habeas
corpus proceedings, but criminal investigation and
Note: Recording the decision in the criminal docket of the proceedings.
court satisfies the requirement of notifying the accused of
the decision wherever he may be. (Estrada v. People, G.R. Q: Cayet was arrested by the military on the basis of
No. 162371, Aug. 25, 2005)
a mission order issued by the Department of
Defense. A petition for habeas corpus was filed. The
WRIT OF HABEAS CORPUS writ was issued. Later, an information for rebellion
was filed against Cayet. The military moved that the
Q: What is the Writ of Habeas Corpus? petition should be dismissed for having become
moot and academic. Decide.
A: The writ of habeas corpus is a writ directed to the
person detaining another, commanding him to A: The function of the special proceeding of habeas
produce the body of the detainee at a designated corpus is to inquire into the legality of ones
time and place, and to show the cause of his detention. Now that the detainees incarceration is by
detention. virtue of a judicial order in relation to criminal cases
subsequently filed against them, the remedy of
Q: What is the Privilege of the Writ of Habeas habeas corpus no longer lies. The writ has served its
Corpus? purpose. (Ilagan v. Enrile, G.R. No. 70748, Oct. 21,
1985)
A: It is the right to have an immediate determination
of the legality of the deprivation of physical liberty.

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WRIT OF AMPARO, HABEAS DATA filed with the CA or SC


AND KALIKASAN justice
Exempted from payment Not exempted
Q: What is the Writ of Amparo? of docket fees
Release of detained Release of detained
A: It is a remedy available to any person whose right person does not render person renders it moot
to life, liberty, and security has been violated or is the petition moot and and academic
threatened with violation by an unlawful act or academic
omission of a public official or employee, or of a
private individual or entity. The writ covers extralegal Q: Engr. Peregrina disappeared one day and his wife
killings and enforced disappearances or threats filed a petition for the Writ of Amparo with the CA
thereof. (Rule on Writ of Amparo) directed against the PNP, claiming that the
unexplained uncooperative behavior of the
Q: What are extralegal killings? respondents request for help and their failure and
refusal to extend assistance in locating the
A: Killings committed without due process of law, i.e., whereabouts of Peregrina were indicative of their
without legal safeguards or judicial proceedings. actual physical possession and custody of the
missing engineer. The PNP was held responsible for
Q: What constitutes enforced disappearances? the enforced disappearance of Engr. Peregrina. Is
this valid?
A: An arrest, detention or abduction of a person by a
government official or organized groups or private A: Yes. The government in general, through the PNP
individuals acting with the direct or indirect and the PNP-CIDG, and in particular, the Chiefs of
acquiescence of the government. It is further these organizations together with Col. Kasim, should
characterized by the refusal of the State to disclose be held fully accountable for the enforced
the fate or whereabouts of the person concerned or a disappearance of Peregrina. Given their mandates,
refusal to acknowledge the deprivation of liberty the PNP and the PNP-CIDG officials and members
which places such persons outside the protection of were the ones who were remiss in their duties when
law. the government completely failed to exercise
extraordinary diligence that the Amparo rule
Q: What are the main advantages of the Writ of requires. (Razon v. Tagitis, G.R. No. 182498, Dec. 3,
Amparo over the Writ of Habeas Corpus? 2009)

A: Q: Fr. Randy Ochoa was charged with rebellion and


WRIT OF HABEAS his name was included in the hold departure list.
WRIT OF AMPARO
CORPUS The case was later on dismissed but the Hold
Interim reliefs, such as No interim reliefs Departure Order still subsisted. Can the Writ of
temporary protection Amparo be invoked to protect his right to travel?
order, witness protection
order, inspection order A: No. The restriction on his right to travel as a
and production order, are consequence of the pendency of the criminal case
available filed against him was not unlawful. Fr. Reyes also
Covers acts which violate Limited to cases failed to establish that his right to travel was impaired
or threaten to violate the involving actual in the manner and to the extent that it amounted to a
right to life, liberty and violation of right to serious violation of his right to life, liberty, and
security liberty security, for which there exists no readily available
General denial is not Mere denial is a ground legal remedy. (Reyes v. CA, G.R. No. 182161, Dec. 3,
allowed; detailed return for dismissal of the 2009)
is required of the petition
respondent Q: Almarius and Aaron were abducted by the
No presumption of Presumption of regular Citizens Armed Forces Geographical Unit (CAFGU).
regularity; must prove performance of official They were taken to various military camps, put in
observance of duty is applicable chains and tortured. While detained, they were
extraordinary diligence threatened that if they escape, they and their
Enforceable anywhere in Only enforceable families would be killed. While in captivity they met
the Philippines anywhere in the Phil. if

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April, Mela, and Sol who were also prisoners then unlawful act or omission of a public official or
eventually, Almarius and Aaron were able to escape. employee or extralegal killings and enforced
disappearances or threats thereof?
Presently, Almarius and Aaron are now in protective
custody under private individuals. Almarius and A:
Aaron then filed a petition for the issuance of the 1. The existence of a superior-subordinate
Writ of Amparo, implicating several officers of the relationship between the accused as superior
military as their abductors. They allege that their and the perpetrator of the crime as his
cause of action consists in the threat to their right to subordinate;
life and liberty, and a violation of their right to 2. The superior knew or had reason to know that
security. Considering the fact that they have already the crime was about to be or had been
escaped, will the petition still prosper? committed;
3. The superior failed to take the necessary and
A: Yes. While Almarius and Aaron were detained, reasonable measures to prevent the criminal
they were threatened that if they escaped, their acts or punish the perpetrators thereof.
families, including them, would be killed. In time, 4. The superior has knowledge that a crime or
they were able to escape. The condition of the threat offense shall be committed, is being committed,
to be killed has come to pass. It should be stressed or ha been committed by his subordinates, or by
that they are now free from captivity not because others within his area of responsibility and,
they were released by virtue of a lawful order or despite such knowledge, he did not take
voluntarily freed by their abductors. It ought to be preventive or corrective action either before,
recalled that towards the end of their ordeal their during, or immediately after its commission; and
captors even told them that they were still deciding 5. President ceases to occupy the office by
whether they should be executed. impeachment or expiration of term and shown
by substantial evidence
The possibility of Almarius and Aaron being executed
stared them in the eye while they were in detention. Note: Knowledge of the commission of irregularities,
With their escape, this continuing threat to their life crimes or offenses is presumed when:
1. The acts are widespread within the government
is apparent, more so now that they have surfaced
officials area of jurisdiction;
and implicated specific officers in the military not 2. The acts have been repeatedly or regularly
only in their own abduction and torture, but also in committed within his area of responsibility; and
those of other persons known to have disappeared 3. Members of his immediate staff or office
such as April, Mela, and Sol, among others. personnel is involved.(In Re: Petition for the Writ
of Amparo and Habeas Data in Favor of Noriel H.
Understandably, since their escape, they have been Rodriguez vs. Macapagal-Arroyo, GR. No.
under concealment and protection by private citizens 193160, Nov. 15, 2011)
because of the threat to their life, liberty and
security. The threat vitiates their free will as they are WRIT OF HABEAS DATA
forced to limit their movements or activities.
Precisely because they are being shielded from the Q: What is the writ of habeas data? When is the writ
perpetrators of their abduction, they cannot be applicable?
expected to show evidence of overt acts of threat
such as face-to-face intimidation or written threats to A: The writ of habeas data is a remedy available to
their life, liberty and security. Nonetheless, the any person whose right to privacy in life, liberty or
circumstances of their abduction, detention, torture security is violated or threatened by an unlawful act
and escape reasonably support a conclusion that or omission of a public official or employee, or of a
there is an apparent threat that they will again be private individual or entity engaged in the gathering,
abducted, tortured, and this time, even executed. collecting or storing of data or information regarding
These constitute threats to their liberty, security, and the person, family, home and correspondence of the
life, actionable through a petition for a Writ of aggrieved party.(Sec. 1, The Rule on the Writ of
Amparo. (Sec. of National Defense and AFP Chief of Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008)
Staff v. Manalo, G.R. No. 180906, Oct. 7, 2008)
A writ of habeas data cannot be issued to protect
Q: What are the requisites for a president to be purely property or commercial concern. It bears
liable under the principle of command responsibility reiteration that like the writ of amparo, habeas data
in connection with threatened violation by an was conceived as a response, given the lack of
effective and available remedies, to address the

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extraordinary rise in the number of killings and A: A question tends to incriminate when the answer
enforced disappearances. Its intent is to address of the accused or the witness would establish a fact
violations of or threats to the rights to life, liberty or which would be a necessary link in a chain of
security as a remedy independently from those evidence to prove the commission of a crime by the
provided under prevailing rules. Writs of amparo and accused or the witness.
habeas data will not issue to protect purely property
or commercial concerns nor when the grounds Q: When can a witness invoke the right against self-
invoked in support of the petitions therefore are incrimination?
vague or doubtful. Employment constitutes a
property right under the context of the due process A: The privilege against self-incrimination can be
clause of the constitution. It is evident that claimed only when the specific question,
respondents reservations on the real reasons for her incriminatory in character, is actually addressed to
transfer-a legitimate concern respecting the terms the witness. It cannot be claimed at any other time. It
and conditions of ones employment- are what does not give a witness the right to disregard a
prompted her to adopt the extraordinary remedy of subpoena, to decline to appear before the court at
habeas data. (Manila Electric Company vs. Lim, 632 the time appointed.
SCRA 195, 2010)
The privilege against self-incrimination is not self-
executing or automatically operational. It must be
WRIT OF KALIKASAN claimed. It follows that the right may be waived,
expressly, or impliedly, as by a failure to claim it at
Q: What is Writ of Kalikasan? the appropriate time.

A: Under Sec. 1, Rule 7 , Rules of Procedure for Q: Is there any difference between the right against
Environmental Cases, the writ is a remedy available self-incrimination that can be invoked by the
to a natural or juridical person, entity authorized by accused from that of a witness?
law, peoples organization, non-governmental
organization, or any public interest group accredited A: Yes. An accused occupies a different tier of
by or registered with any government agency, on protection from an ordinary witness. Whereas an
behalf of persons whose constitutional right to a ordinary witness may be compelled to take the
balanced and healthful ecology is violated, or witness stand and claim the privilege as each
threatened with violation by an unlawful act or question requiring an incriminating answer is shot at
omission of a public official or employee, or private him, an accused may altogether refuse to take the
individual or entity, involving environmental damage witness stand and refuse to answer any and all
of such magnitude as to prejudice the life, health or questions. For, in reality, the purpose of calling an
property of inhabitants in two or more cities or accused as a witness for the People would be to
provinces. (A.M. No. 09-6-8-SC) incriminate him. The rule positively intends to avoid
and prohibit the certainly inhuman procedure of
INCRIMINATION CLAUSE compelling a person to furnish the missing evidence
necessary for his conviction (Chavez v. Court of
Q: When is the right available? Appeals, G.R. L-29169, August 1968)

A: Q: What is the difference between an accused and


1. Criminal cases an ordinary witness with respect to the right against
2. Civil cases self-incrimination?
3. Administrative cases
4. Impeachment A:
5. and other legislative investigations that possess a ACCUSED ORDINARY WITNESS
criminal or penal aspect Can refuse to take the Cannot refuse to take the
witness stand altogether witness stand; can only
XPN: Private investigations done by private by invoking the right refuse to answer specific
individual (BPI vs. CASA, GR.No.149454, May 28, against self-incrimination
questions which would
2004). incriminate him in the
commission of an offense
Q: When is a question incriminating? Q: What is the scope of the Privilege against Self-
incrimination?

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The letters were admitted in evidence and Jez was


A: This constitutional privilege has been defined as a convicted. On appeal, Jezs counsel Zenia argued
protection against testimonial compulsion, but this that the signing of Jezs and her co-accuseds names
has since been extended to any evidence was not a mere mechanical act but one which
communicative in nature acquired under required the use of intelligence and therefore
circumstances of duress (People v. Olvis, G.R. No. constitutes self-incrimination. Is there a violation of
71092, Sept. 30, 1987) the accuseds right against self-incrimination?

What is prohibited is the use of physical or moral A: None. The purpose for securing the signature of
compulsion to extort communication from the petitioner on the envelopes was merely to
witness or to otherwise elicit evidence which would authenticate the envelopes as the ones seized from
not exist were it not for the actions compelled from him. Moreover, when the signatures of the accused
the witness. were affixed, such signatures were actually evidence
of admission obtained from the petitioner and his co-
Q: Do re-enactments violate a person's right against accused under circumstances constituting custodial
self-incrimination? investigation. Under the Constitution, among the
rights of a person under custodial investigation is the
A: Yes. A person who is made to re-enact a crime may right to have competent and independent counsel
rightfully invoke his privilege against self- preferably of his own choice and if the person cannot
incrimination, because by his conduct of acting out afford the services of a counsel, that he must be
how the crime was supposedly committed, he provided with one. It is on this ground that the letters
thereby practically confesses his guilt by action which with the signature of the accused could be rejected
is as eloquent, if not more so, than words. (Marcelo v. Sandiganbayan, G.R.No. 109242, January
26, 1999).
Q: Fiscal Jessa Bernardo petitioned the lower court
to order Art to appear before the former to take Q: Is the right against self-incrimination available to
dictation in Arts own handwriting to determine juridical persons?
whether or not it was Art who wrote certain
documents supposed to be falsified. The lower court A: No. It is not available to juridical persons as it
granted the petition of the fiscal. Art refused what would be a strange anomaly to hold that a state
the fiscal demanded and sought refuge in the having chartered a corporation to make use of certain
constitutional provision of his right against self- franchises, could not, in the exercise of sovereignty,
incrimination. Is Arts contention valid? inquire how these franchises had been employed,
and whether they have been abused, and demand
A: Arts contention is tenable. Under Article III, the production of the corporate books and papers for
Section 17 of the 1987 Constitution, no person that purpose. (Bataan Shipyard and Engineering
shall be compelled to be a witness against Corporation vs. PCG, GR. No. 75885, May 27, 1987)
himself. Since the provision prohibits compulsory
testimonial incrimination, it does not matter whether IMMUNITY STATUTES
the testimony is taken by oral or written. Writing is
not purely a mechanical act because it requires the Q: Distinguish Derivative-Use Immunity from
application of intelligence and attention. The purpose Transactional Immunity.
of the privilege is to avoid and prohibit thereby the A:
repetition and recurrence of compelling a person, DERIVATIVE-USE TRANSACTIONAL
in a criminal or any other case, to furnish the IMMUNITY IMMUNITY
missing evidence necessary for his conviction. Only prevents the Completely protects the
(Bermudez v. Castillo, July 26, 1937; Beltran v. prosecution from using witness from future
Samson, G.R. No. 32025, Sept. 23, 1929) the witness' own prosecution for crimes
testimony, or any related to his or her
Note: There is similarity between one who is compelled to evidence derived from testimony.
produce a private document (Boyd vs. US, 1886), and one the testimony, against
who is compelled to furnish a specimen of his handwriting,
him. However, should
for in both cases, the witness is required to furnish
evidence against himself. the prosecutor acquire
evidence substantiating
Q: During custodial investigation, Jez was asked to the supposed crime
sign letters without the assistance of the counsel. independent of the

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witness's testimonythe Q: Lisette and Angela were called before the


witness may then be AGRAVA Board to elicit and determine the
prosecuted for the same. surrounding facts and circumstances of the
assassination of Benigno Aquino Sr. Section 5 of the
same law (P.D. 1886) creating the Board compels a
person to take the witness stand, testify or produce
Does not protect the Gives the witness the evidence, under the pain of contempt if they failed
witness quite as much, most protection from or refused to do so. Lisette and Angela gave their
because here the witness prosecution because that testimonies without having been informed of their
is only protected from witness can never be right to remain silent and that any statement given
future prosecution based prosecuted in the future by them may be used against them. The Board then
on exactly what he or she for any crimes related to used the information from the testimonies of Lisette
says on the witness his or her testimony. and Angela to support the prosecution's case against
stand, and not from any them in Sandiganbayan. The Board contends that
evidence the prosecutor Also known as blanket or the fact that Lisette and Angela testified before the
finds to substantiate the total immunity Board constituted as a valid waiver of their
witness crime. constitutional rights to remain silent and not to be
compelled to be a witness against themselves.
Q: Republic of the Philippines filed a case against 1. Was there a valid waiver of the rights?
Westinghouse Corporation before the US District 2. Are the testimonies of Lisette and Angela
Court due to the belief that Westinghouse contract admissible in court?
for the construction of the Bataan Nuclear power 3. How can the unconstitutional effects be
plant, which was brokered by Herminio Disinis reconciled?
company, had been attended by anomalies. Having
worked as Herminios executive in the latters A:
company for 15 years, the Republic asked Jesus 1. None. In the case at bar, Lisette and Angela were
Disini to give his testimony regarding the case. under the directive of law and under the
compulsion of fear for the contempt powers of
An immunity agreement was entered between Jesus the Board. They were left with no choice but to
and the Republic which Disini undertook to testify provide testimonies before the Board.
for his government and provide its lawyers with
information needed to prosecute the case. Said 2. No, the manner in which testimonies were taken
agreement gave Jesus an assurance that he shall not from Lisette and Angela falls short of the
be compelled to give further testimonies in any constitutional standards both under the due
proceeding other than the present matter. Jesus process clause and under the exclusionary rule.
complied with his undertaking but 18 years after the
Sandiganbayan issued a subpoena against him, 3. As a rule, such infringement of constitutional
commanding to testify and produce documents right renders inoperative the testimonial
before said court in an action filed against Herminio. compulsion, meaning, the witness cannot be
compelled to answer UNLESS a co-extensive
Can Jesus be compelled to testify before the protection in the form of IMMUNITY is offered.
Sandiganbayan? The only way to cure the law of its
unconstitutional effects is to construe it in the
A: No. A contract is the law between the parties. It manner as if IMMUNITY had in fact been offered.
cannot be withdrawn except by their mutual consent. The applicability of the immunity granted by P.D.
In the case at bar, the Republic, through the PCGG, 1886 cannot be made to depend on a claim of
offered Jesus not only criminal and civil immunity but the privilege against self-incrimination which the
also immunity against being compelled to testify in same law practically strips away from the
any proceeding other than the civil and arbitration witness. (Galman vs. Pamaran, G.R. Nos. 71208-
cases identified in the agreement, just so he would 09, Aug. 30, 1985)
agree to testify. When the Republic entered in such
Note: Sec. 5, P.D. 1886, grants merely immunity from use of
agreement, it needs to fulfill its obligations honorably
any statement given before the AGRAVA Board, but not
as Jesus did. The government should be fair. (Disini v.
immunity from prosecution by reason or on the basis
Sandiganbayan, G.R. No. 180564, June 22, 2010) thereof. (ibid.)

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Q: What is the effect of denial of privilege against A: A penalty is degrading if it exposes a person to
self-incrimination? public humiliation. (ex. Being tarred and feathered,
then paraded throughout town)
A: When the privilege against self-incrimination is
violated outside of court, say, by the police, then the Q: What are the standards used to determine if the
testimony, as already noted, is not admissible under penalty is cruel and inhuman?
the exclusionary rule. When the privilege is violated
by the court itself, that is, by the judge, the court is A:
ousted of its jurisdiction, all its proceedings are null 1. The punishment must not be so severe as to be
and void, and it is as if no judgment has been degrading to the dignity of human beings
rendered.(Chavez v. CA, G.R. No. L-29169, Aug. 19, 2. It must not be applied arbitrarily
1968) 3. It must not be unacceptable to contemporary
society
INVOLUNTARY SERVITUDE AND POLITICAL 4. It must not be excessive, and it must serve a
PRISONERS penal purpose more effectively than a less
severe punishment would
Q: What is involuntary servitude? 5. Excessive fine, or one which is disproportionate
to the offense
A: It is the condition where one is compelled by force,
coercion, or imprisonment, and against his will, to Note: Mere severity does not constitute cruel or inhuman
labor for another, whether he is paid or not. punishment. To violate constitutional guarantee, penalty
must be flagrant and plainly oppressive, disproportionate
to the nature of the offense as to shock the senses of the
GR: No involuntary servitude shall exist.
community.

XPNs:
NON-IMPRISONMENT FOR DEBTS
1. Punishment for a crime for which the party
has been duly convicted
Q: What is the coverage of this section?
2. Personal military or civil service in the
interest of national defense
A:
3. In naval enlistment, a person who enlists in a
1. Debt any civil obligation arising from contract
merchant ship may be compelled to remain
2. Poll tax a specific sum levied upon any person
in service until the end of a voyage
belonging to a certain class without regard to
4. Posse comitatusor the conscription of able-
property or occupation (e.g. Community tax)
bodied men for the apprehension of
criminals
Note: A tax is not a debt since it is an obligation arising
5. Return to work order issued by the DOLE from law. Hence, its non-payment maybe validly punished
Secretary or the President with imprisonment. Only poll tax is covered by the
6. Minors under patria potestas are obliged to constitutional provision.
obey their parents
If an accused fails to pay the fines imposed upon him, this
EXCESSIVE FINES AND CRUEL AND may result in his subsidiary imprisonment because his
INHUMAN PUNISHMENTS liability is ex delicto and not ex contractu.

Q: If the debtor contracted the debt through fraud,


Q: What are the punishments covered?
may he be imprisoned?
A: Cruel, degrading, and inhuman form, extent, and
A: Generally, a debtor cannot be imprisoned for
duration punishments
failure to pay his debt. However, if he contracted his
debt through fraud, he can be validly punished in a
Q: When is a penalty cruel and inhuman?
criminal action as his responsibility arises not from
the contract of loan but from commission of a crime.
A: A penalty is cruel and inhuman if it involves torture
(Lozano v. Martinez, G.R. No. L-63419, Dec.18, 1986)
or lingering suffering. (ex. Being drawn and
quartered)
DOUBLE JEOPARDY
Q: When is a penalty degrading?
Q: What is Double Jeopardy?

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BILL OF RIGHTS

A: When a person was charged with an offense and complaint or information, and plea of guilty to a
the case was terminated by acquittal or conviction or lesser offense was made without the consent of
in any other manner without his consent, he cannot prosecutor or offended party. (People v. Judge
again be charged with the same or identical offense. Villarama, G.R. No. 99287, June 23, 1992).
(Melo v.People, G.R. No. L-3580, Mar. 22, 1950).
Q: Jet was convicted for Reckless Imprudence
Q: What is the reason for the rule? Resulting in Slight Physical Injuries. Can he still be
prosecuted for Reckless Imprudence Resulting in
A: It is a safeguard against a second prosecution for Homicide and Damage to Property arising from the
the same offense. Without the rule on double same incident?
jeopardy, an accused will be at the mercy of the
complainant and his witnesses thereby subjecting A: No. The doctrine that reckless imprudence under
him to a never ending charge which the malice of the Article 365 is a single quasi-offense by itself and not
complaining witnesses might hold indefinitely merely a means to commit other crimes such that
suspended over his head. (Julia vs. Sotto, GR. No. conviction or acquittal of such quasi-offense bars
1044, May 15, 1903) subsequent prosecution for the same quasi-offense,
regardless of its various resulting acts. Reason and
Q: What are the two types of double jeopardy? precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the
A: accused may not be prosecuted again for that same
1. No person shall be twice put in jeopardy of act. For the essence of the quasi offense of criminal
punishment for the same offense negligence under Article 365 of the Revised Penal
2. If an act is punished by a law and an ordinance, Code lies in the execution of an imprudent or
conviction or acquittal under either shall negligent act that, if intentionally done, would be
constitute a bar to another prosecution for the punishable as a felony. The law penalizes thus the
same act negligent or careless act, not the result thereof. The
gravity of the consequence is only taken into account
Q: When will double jeopardy attach? to determine the penalty, it does not qualify the
substance of the offense. And, as the careless act is
A: single, whether the injurious result should affect one
1. The first jeopardy must have attached prior to person or several persons, the offense (criminal
the second negligence) remains one and the same, and can not
2. The first jeopardy must have been validly be split into different crimes and prosecutions. (Jason
terminated Ivler y Aguilar v. Hon. Maria Rowena Modesto-San
3. The second jeopardy must be for the commission Pedro, G.R. No. 172716, November 17, 2010)
of the same offense or the second offense must
include or is necessarily included in the first Q: Allan was charged with a criminal case in the
information, or is an attempt to commit the court. He was arraigned and he pleaded not guilty.
same or a frustration thereof Later the prosecution moved to dismiss the case.
The counsel for the accused wrote No Objection at
Q: What is the Doctrine of Supervening Event? the bottom of the prosecutors motion. The court
granted the motion and dismissed the case against
A: It allows the prosecution of another offense if Allan. A year after Allan was charged for the same
subsequent development changes the character of case. May Allan invoke the right against double
the first indictment under which he may have already jeopardy?
been charged or convicted.
A: No. The act of the Allans counsel in writing No
Q: Will the conviction of an accused bar another Objection constituted an express consent to the
prosecution for an offense which necessarily termination within the meaning of Sec. 9 of Rule 117
includes the offense originally charged? Rules of Court. He could not thereafter revoke that
conformity since the court had already acted upon it
A: No. Conviction will not bar prosecution for another by dismissing the case. X was bound by his counsels
offense if the graver offense developed due to consent to the dismissal. (People v. Pilpa, G.R. No. L-
supervening facts arising from the same act or 30250, Sept. 22, 1977)
omission, facts constituting the graver offense arose
or discovered only after the filing of the former

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Q: Two policemen were charged before the A: No, There was no double jeopardy, the
Sandiganbayan for the death of two men. However, proceedings that took place before was a sham and a
the prosecution was ordered to amend the mock trial which resulted in the denial of the States
information and the accused were arraigned anew right to due process. (Galman vs. Sandiganbayan, GR.
and consequently convicted. Were they placed in No. 72670, Sept. 12, 1986)
double jeopardy?
Q: What are the requisites of double jeopardy?
A: No. The first requirement for jeopardy to attach
that the information were valid has not been A:
complied with. (Herrera v. Sandiganbayan, G.R. Nos. 1. Court of competent jurisdiction
119660-61, Feb. 13, 2009) 2. A Complaint or Information sufficient in form and
substance to sustain a conviction
Q: If the first case was dismissed due to insufficiency 3. Arraignment and plea by the accused;
of evidence without giving the prosecution the 4. Conviction, acquittal, or dismissal of the case
opportunity to present its evidence, has jeopardy without the express consent of the accused. (Sec
attached? 7, Rule 117, Rules of Court; People v. Obsania,
G.R. No. L-24447, June 29, 1968)
A: The first jeopardy has not yet attached. There is no
question that four of the five elements of legal MOTIONS FOR RECONSIDERATION AND APPEALS
jeopardy are present. However, the last element
valid conviction, acquittal, dismissal or termination of Q: When may the court grant a new trial or
the case is wanting since the right to due process reconsideration?
was violated. (People v. Dumlao, G.R. No. 168918,
Mar. 2, 2009) A: At any time before a judgment of conviction
becomes final, the court may on motion of the
Q: Upon arraignment, Arwin pleaded not guilty to accused, or on its own instance with the consent of
the charge of serious physical injuries. Then days the accused, grant a new trial or reconsideration.
later, the victim died. Hence, the Fiscal moved for (Rule 121, Sec. 1 of the Revised Rules of Criminal
the amendment of the information so as to charge Procedure)
the accused with the crime of homicide. The accused
objected on the ground that he had been put in Q: What is a motion for reconsideration?
jeopardy of being convicted of the crime of serious
physical injuries; and that another prosecution for A: It is a motion generally filed by the accused
homicide for the same act under the amended whereby he seeks the modification of the conclusions
information would constitute double jeopardy. If of the court in the judgment of conviction on the
you were the judge, how would you resolve the basis of what is already on record. It does not call for
motion? Explain. (1984 BAR QUESTION, Political Law the introduction of evidence unlike in new trial.
Reviewer, Suarez, 2011). (Pineda, The Revised Rules of Criminal Procedure,
2006 ed., 536-537)
A: There is no double jeopardy and the motion of the
accused should be therefore be denied. His plea was Q: Who may appeal?
only with respect to the charge of physical injuries
but not with respect to the crime of homicide. A: Any party may appeal from a judgment or final
order, unless the accused will be placed in double
Q: After a long and protracted trial, the accused jeopardy. (Rule 122, Sec. 1 of the Revised Rules of
involved in the murder of then Senator Benigno S. Criminal Procedure)
Aquino were acquitted by an independent
commission whose members were appointed by Note: The authority to represent the State in appeals of
then President Ferdinand E. Marcos. After the EDSA criminal cases before the Supreme Court and the CA is
People Power Revolution, a commission presided by solely vested in the Office of the Solicitor General (OSG).
retired Justice Conrado Vasquez, appointed by then
To be sure, in criminal cases, the acquittal of the accused or
President Corazon C. Aquino, recommended the re-
the dismissal of the case against him can only be appealed
opening of the Galman-Aquino murder case. Was by the Solicitor General, acting on behalf of the State. The
there double jeopardy? private complainant or the offended party may question
such acquittal or dismissal only insofar as the civil liability of
the accused is concerned.

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2013 GOLDEN NOTES 138
BILL OF RIGHTS
In a special civil action for certiorari filed under Section 1, EX POST FACTO LAW AND
Rule 65 of the Rules of Court wherein it is alleged that the BILL OF ATTAINDER
trial court committed a grave abuse of discretion
amounting to lack of jurisdiction or on other jurisdictional
Q: What are the kinds of ex post facto law?
grounds, the rules state that the petition may be filed by
the person aggrieved. In such case, the aggrieved parties
are the State and the private offended party or A: It can be a law that:
complainant. The complainant has an interest in the civil 1. Makes an act, which was innocent when done,
aspect of the case so he may file such special civil action criminal and punishes such action
questioning the decision or action of the respondent court 2. Aggravates a crime or makes it greater than
on jurisdictional grounds. In so doing, complainant should when it was committed
not bring the action in the name of the People of the 3. Changes the punishment and inflicts a greater
Philippines. The action may be prosecuted in name of said punishment than the law annexed to the crime
complainant (Bautista & Alcantara v. Cuneta-Pangilinan,
when it was committed
G.R. No. 189754, Oct. 24, 2012).
4. Alters the legal rules of evidence and receives
less or different testimony than the law required
Q: May the prosecution appeal an acquittal?
at the time of the commission of the offense in
order to convict the defendant
A:
5. Assumes to regulate civil rights and remedies
GR: The prosecution may not appeal an acquittal and
only. In effect imposes penalty or deprivation of
an acquittal is immediately final
a right for something which when done was
lawful
XPNs:
6. Deprives a person accused of a crime of some
1. The dismissal is on motion or with the
lawful protection to which he has become
express consent of the accused
entitled, such as the protection of a former
XPN to the XPN: If motion is based on
conviction or acquittal, or a proclamation of
violation of the right to a speedy trial or
amnesty
on demurrer to evidence
Q: What is a bill of attainder?
2. The dismissal does not amount to an
acquittal or dismissal on the merits
A: A bill of attainder is a legislative act that inflicts
3. The question to be passed upon is purely
punishment without trial, its essence being the
legal
substitution of legislative fiat for a judicial
4. The dismissal violates the right of due
determination of guilt.(People vs. Ferrer)
process of the prosecution
5. The dismissal is made with grave abuse of
Note: It is only when a statute applies either to a named
discretion. individuals or easily ascertainable members of a group in
such a way as to inflict punishment on them without a
DISMISSAL WITH CONSENT OF ACCUSED judicial trial that it becomes a bill of attainder.

Q: When is the defense of double jeopardy not Q: What are the two kinds of bill of attainder?
available?
A:
A: 1. Bill of attainder proper (legislative imposition of
GR: Double jeopardy is not available when the case is the death penalty)
dismissed other than on the merits or other than by 2. Bill of pains and penalties (imposition of a lesser
acquittal or conviction upon motion of the accused penalty).
personally, or through counsel, since such dismissal is
regarded as with express consent of the accused, who Q: Carlos was charged with illegal possession of
is therefore deemed to have waived the right to plea firearms. When Carlos committed the offense, the
double jeopardy. governing law was PD 1866, which provided for the
penalty of reclusion temporal to reclusion perpetua.
XPNs: However, while the case was pending, PD 1866 was
1. Dismissal based on insufficiency of evidence amended by RA 8294, which reduced the penalty to
2. Dismissal because of denial of accuseds prision correccional but increasing the amount of
right to speedy trial fine. If Carlos is convicted, which penalty shall be
3. Accused is discharged to be a State witness imposed?

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139 FACULTY OF CIVIL LAW
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A: R.A. 8294 is the applicable law. As a general rule,


penal laws should not have retroactive application,
lest they acquire the character of an ex post facto
law. An exception to this rule, however, is when the
law is advantageous to the accused. Although an
additional fine of P15,000.00 is imposed by R.A. 8294,
the same is still advantageous to the accused,
considering that the imprisonment is lowered to
prision correccional in its maximum period from
reclusion temporal in its maximum period to reclusion
perpetua under P.D. 1866.

Hence, R.A. 8294 should be applied, without


prejudice to the application of the Indeterminate
Sentence Law. (Valeroso v. People, G.R. No. 164815,
Feb. 22, 2008)

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2013 GOLDEN NOTES 140
CITIZENSHIP

CITIZENSHIP 1. By birth
a. Jus sanguinis acquisition of citizenship on
Q: What is citizenship? the basis of blood relationship.
b. Jus soli acquisition of citizenship on the
A: It is membership in a political community which is basis of the place of birth.
personal and more or less permanent in character. 2. By naturalization the legal act of adopting an
alien and clothing him with the privilege of a
Q: Who are citizens of the Philippines? native-born citizen.
3. By marriage
A:
1. Those who are Filipino citizens at the time of the Note: Jus sanguinis and naturalization are the modes
adoption of the 1987 Constitution: followed in the Philippines.
a. Those who are citizens under the Treaty of
Paris; Q: What are the statutory formalities in selecting
b. Those declared citizens by judicial Philippine citizenship?
declaration applying the jus soli principle,
before Tio Tam v. Republic, 25 Apr. 1957, A:
G.R. No. L-9602. 1. A statement of election under oath
c. Those who are naturalized in accordance 2. An oath of allegiance to the Constitution and
with law. (Act 2927) Government of the Philippines; and
d. Those who are citizens under the 1935 3. Registration of the statement of election and of
Constitution. the oath with the nearest civil registry
e. Those who are citizens under the 1973 .(Balgamelo Cabiling Ma, et al. vs. Commissioner
Constitution. Alipio F. Fernandez, Jr., et al. G.R. No. 183133,
July 26, 2010
2. Those whose fathers or mothers are Filipino
citizens Q: Is it the registration of the act of election that
3. Those born before January 17, 1973, of Filipino confers Filipino citizenship?
mothers, who elect Philippine citizenship upon
reaching the age of majority; A: No. It is not the registration of the act of election,
although a valid requirement under Commonwealth
Note: Time to elect: within 3 years from reaching the Act No. 625 that will confer Philippine citizenship on
age of majority. the petitioners. It is only a means of confirming the
fact that citizenship has been claimed. In other
4. Those naturalized in accordance with law. (Sec.1, words, the actual exercise of Philippine citizenship for
Art. IV, 1987 Constitution) over half a century by the petitioners is actual notice
to the Philippine public, which is equivalent to formal
Q: What is the Caram Rule? registration of the election of Philippine citizenship.
(Balgamelo Cabiling Ma, et al. vs. Commissioner
A: Under the 1935 Constitution, those born in the Alipio F. Fernandez, Jr., et al. G.R. No. 183133, July 26,
Philippines of foreign parent, who before the 2010)
adoption of the Constitution had been elected to
public office, are considered Filipino citizens. Q: When should the registration of documents of
(Chiongbian v. de Leon, G.R. No. L-2007, Jan. 31, election be allowed beyond the time frame?
1949)
A: It should be allowed if in the meanwhile positive
The 1935, Constitution, during which regime FPJ had acts of citizenship have been done publicly,
seen first light, confers citizenship to all persons consistently and continuously. These acts constitute
whose fathers are Filipino citizens regardless of constructive registration. (Balgamelo Cabiling Ma, et
whether such children are legitimate or illegitimate. al. vs. Commissioner Alipio F. Fernandez, Jr., et al. G.R.
(Tecson v. COMELEC, G.R. No. 161434, Mar. 3, 2004) No. 183133, July 26, 2010)

MODES OF ACQUIRING CITIZENSHIP Q: Is the failure to register the election of


citizenship in the civil registry defeat the election
Q: What are the modes of acquiring citizenship? and negate the permanent fact that petitioners have
a Filipino mother?
A:

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141 FACULTY OF CIVIL LAW
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A: No. Having a Filipino mother is permanent. It is profession or lawful occupation that can support
the basis of the right of the petitioners to elect himself and his family.
Philippine citizenship. (Balgamelo Cabiling Ma, et al.
vs. Commissioner Alipio F. Fernandez, Jr., et al. G.R. 5. Speaks and writes English or Filipino and any
No. 183133, July 26, 2010) principal Philippine dialects (as amended by Sec.
6 Art. XIV); and
NATURALIZATION AND DENATURALIZATION
6. Enrolled minor children in any public or private
Q: What is naturalization? school recognized by the government where
Philippine history, government and civics are
A: Naturalization signifies the act of formally taught as part of the curriculum, during the
adopting a foreigner into the political body of a entire period of residence prior to hearing of
nation by clothing him or her with the privileges petition.
of a citizen
Q: Who are disqualified from Judicial Naturalization
Q: Give the modes of becoming a citizen by (C.A. No. 473)?
naturalization.
A:
A: 1. Persons opposed to organized government or
1. Administrative naturalization pursuant to R.A. affiliated with any association or group of
No. 9139 persons which uphold and teach doctrines
2. Judicial naturalization pursuant to C.A. No. 473, opposing all organized governments
as amended 2. Persons defending or teaching necessity or
3. Legislative naturalization in the form of a law propriety of violence, personal assault or
enacted by Congress bestowing Philippine assassination for the success or predominance of
citizenship to an alien. (So v. Rep., G.R. No. their ideas
170603, Jan. 29, 2007) 3. Polygamists or believers of polygamy
4. Persons suffering from mental alienation or
Q: State the qualifications for Judicial Naturalization incurable contagious disease
(C.A. No. 473) 5. Persons convicted of crime involving moral
turpitude
A: 6. Persons who, during residence in the Philippines,
1. Not less than 18 years of age on the date of have not mingled socially with Filipinos, or did
hearing the petition (as amended by R.A. 6809) not evince sincere desire to learn and embrace
customs, traditions and ideals of Filipinos
2. Resided in the Philippines for not less than 10 7. Citizens or subjects of nations with whom the
years; may be reduced to 5 years, if; Philippines is at war, during the period of such
a. Honorably held office in the Philippines war
b. Established new industry or introduced a 8. Citizens or subjects of a foreign country whose
useful invention laws do not grant Filipinos the right to become
c. Married to a Filipino woman naturalized citizens or subjects thereof (no
d. Engaged as teacher in Philippine public or reciprocity)
private school not established for exclusive
instruction of a particular nationality or race, Q: State the qualifications for Administrative
or in any branches of education or industry naturalization (R.A. No. 9139)?
for a period of not less than 2 years; and
e. Born in the Philippines A:
1. The applicant must be born in the Philippines and
3. Character residing therein since birth;
1. Good moral character 2. The applicant must not be less than eighteen (18)
2. Believes in the Constitution years of age, at the time of filing of his/her
3. Conducted himself in an irreproachable petition;
conduct during his stay in the Philippines 3. The applicant must be of good moral character
and believes in the underlying principles of the
4. Owns real estate in the Philippines not less than Constitution, and must have conducted
P5,000 in value; or has some lucrative trade, himself/herself in a proper and irreproachable

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2013 GOLDEN NOTES 142
CITIZENSHIP

manner during his/her entire period of residence 7. Citizens or subjects with whom the Philippines is
in the Philippines in his relation with the duly at war, during the period of such war; and
constituted government as well as with the 8. Citizens or subjects of a foreign country whose
community in which he/she is living; laws do not grant Filipinos the right to be
4. The applicant must have received his/her naturalized citizens or subjects thereof.
primary and secondary education in any public
school or private educational institution dully Q: Distinguish judicial from administrative
recognized by the Department of Education, naturalization.
Culture and Sports, where Philippine history,
government and civics are taught and prescribed A:
as part of the school curriculum and where C.A. No. 473 R.A. No. 9139
enrollment is not limited to any race or Judicial act Administrative act
nationality: Provided, That should he/she have Covers all aliens Applies only to aliens who
minor children of school age, he/she must have regardless of class were born in
enrolled them in similar schools; the Philippines and have
5. The applicant must have a known trade, been residing here.
business, profession or lawful occupation, from Less tedious, less technical
which he/she derives income sufficient for and more encouraging.
his/her support and if he/she is married and/or
has dependents, also that of his/her family: An alien who is not qualified
Provided, however, That this shall not apply to under R.A. No. 9139 may
applicants who are college degree holders but still be naturalized under
are unable to practice their profession because C.A. No. 473
they are disqualified to do so by reason of their (So v. Rep., G.R. No. 170603, January 29, 2007)
citizenship;
6. The applicant must be able to read, write and Q: Differentiate a Direct naturalization from
speak Filipino or any of the dialects of the Derivative naturalization.
Philippines; and
7. The applicant must have mingled with the A:
Filipinos and evinced a sincere desire to learn DIRECT DERIVATIVE
and embrace the customs, traditions and ideals NATURALIZATION NATURALIZATION
of the Filipino people. Is effected: Is conferred:
1. By individual 1. On the wife of the
Q: Who are disqualified for Administrative proceedings, usually naturalized husband
naturalization (RA No. 9139)? judicial, under 2. On the minor
general children of the
A: naturalization laws naturalized parent
1. Those opposed to organized government or 2. By specific act of the 3. On the alien woman
affiliated with any association of group of legislature, often in upon marriage to a
persons who uphold and teach doctrines favor of national
opposing all organized governments; distinguished 4. The unmarried child
2. Those defending or teaching the necessity of or foreigners who have whether legitimate,
propriety of violence, personal assault or rendered some illegitimate or
assassination for the success or predominance of notable service to adopted, below 18
their ideas; the local state years of age, of
3. Polygamists or believers in the practice of 3. By collective change those who re-
polygamy; of nationality acquire Philippine
4. Those convicted of crimes involving moral (naturalization en citizenship upon
turpitude; masse) as a result of effectivity of R.A.
5. Those suffering from mental alienation or cession or 9225 shall be
incurable contagious diseases; subjugation deemed citizens of
6. Those who, during the period of their residence 4. In some cases, by the Philippines.
in the Philippines, have not mingled socially with adoption of orphan
Filipinos, or who have not evinced a sincere minors as nationals
desire to learn and embrace the customs, of the State where
traditions and ideals of the Filipinos; they are born

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143 FACULTY OF CIVIL LAW
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Note: Derivative naturalization does not always follow as a 2. If the ground is personal, the wife and children
matter of course, for it is usually made subject to stringent shall retain citizenship.
restrictions and conditions. Our own laws, for instance,
provide that an alien woman married to a Filipino shall
DUAL CITIZENSHIP AND DUAL ALLEGIANCE
acquire his citizenship only if she herself might be lawfully
naturalized.
Q: Distinguish dual citizenship from dual allegiance.
Q: What are the effects of naturalization?
A:
A: DUAL CITIZENSHIP DUAL ALLEGIANCE
ON THE WIFE Arises when, as a result of Refers to the situation
Vests citizenship on the wife who might herself be concurrent application of where a person
lawfully naturalized; She need not prove her the different laws of two simultaneously owes,
qualifications but only that she is not disqualified. or more States, a person by some positive act,
(Moy Ya Lim Yao v. Comm. of Immigration, G.R. No. L- is simultaneously loyalty to two or more
21289, Oct. 4, 1971.) considered a citizen of States.
said states.
ON THE MINOR CHILDREN
Involuntary Result of an individuals
Born in the Philippines
volition and is
Automatically becomes a citizen
prohibited by the
Born Abroad
Constitution.
Before the naturalization of the father
If residing in the Phil. At the Automatically
LOSS AND RE-ACQUISITION OF PHILIPPINE
time of naturalization becomes a citizen.
CITIZENSHIP
If not residing in the Phil. At GR: Considered citizen
the time of naturalization only during minority Q: What are the grounds for loss of Philippine
citizenship?
XPN: He begins to
reside permanently in A:
the Phil. 1. Naturalization in a foreign country; or
After parents naturalization 2. Express renunciation of citizenship (expatriation);
Considered Filipino, or
provided registered as such before any Phil. consulate
within 1 year after attaining majority age and takes Note: The mere application or possession of an alien
oath of allegiance. certificate of registration does not amount to
renunciation (Mercado v. Manzano, G.R. No. 135083,
Q: What are the grounds for denaturalization? May 26, 1999).

A: 3. Subscribing to an oath of allegiance to the


1. Naturalization certificate obtained fraudulently constitution or laws of a foreign country upon
or illegally attaining 21 years of age; or
2. If, within 5 years, he returns to his native country
Note: Citizens may not divest citizenship when the
or to some foreign country and establishes
Philippines is at war.
residence therein
3. Naturalization obtained through invalid
4. Rendering service to or accepting commission in
declaration of intention
the armed forces of a foreign country; or
4. Minor children failed to graduate through the
fault of parents either by neglecting support or Note: It shall not divest a Filipino of his citizenship if:
by transferring them to another school (a) the Philippines has a defensive and/or offensive
5. Allowing himself to be used as a dummy. pact of alliance with the said foreign country; (b) the
said foreign country maintains armed forces in the
Q: What are the effects of denaturalization? Philippine territory with its consent provided that at
the time of rendering said service, or acceptance of
A: said commission, and taking the oath of allegiance
1. If ground affects intrinsic validity of proceedings, incident thereto, states that he does so only in
connection with its service to said foreign country.
denaturalization shall divest wife and children of
their derivative naturalization

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5. Cancellation of certificate of naturalization Philippines and registration in the proper civil registry
(Denaturalization); or and in the Bureau of Immigration. The Bureau of
Immigration shall thereupon cancel the pertinent
6. Having been declared by final judgment a alien certificate of registration and issue the
deserter of the armed forces of the Philippines in certificate of identification as Filipino citizen to the
times of war. repatriated citizen.

7. In case of a woman, upon her marriage, to a Q: What is the effect of repatriation?


foreigner if, by virtue of the laws in force in her
husbands country, she acquires his nationality. A: Repatriation results in the recovery of the original
nationality. This means that a naturalized Filipino who
Q: How is citizenship renounced? lost his citizenship will be restored to his prior status
as a naturalized Filipino citizen. On the other hand, if
A: Expressly. (Mercado v. Manzano, G.R. No. 135083, he was originally a natural-born citizen before he lost
May 26, 1999) his Philippine citizenship, he will be restored to his
former status as a natural-born Filipino. (Bengzon v.
Q: Does res judicata set in citizenship cases? HRET and Cruz, G.R. No. 142840, May 7, 2001)

A: Q: What is an example of reacquisition of citizenship


GR: No. by the direct act of congress?

XPN: A: R.A. 9225 also known as the Citizenship Retention


1. Persons citizenship is resolved by a and Re-acquisition Act of 2003, approved on August
court or an administrative body as a 29, 2003 provides that, upon taking the oath of
material issue in the controversy, after a allegiance to the Republic:
full-blown hearing 1. Natural-born citizens of the Philippines who
2. With the active participation of the have lost their naturalization as citizens of a
Solicitor General or his representative; foreign country are deemed to have re-
and acquired Philippine citizenship; and
3. Finding of his citizenship is affirmed by 2. Natural-born citizens of the Philippines who,
the Supreme Court. (Burca v. Republic after the effectivity of said RA, become
G.R. No. L-24252, Jan. 30, 1967) citizens of a foreign country shall retain
their Philippine citizenship.
Q: What are the ways to reacquire citizenship?
Q: What is the effect of re-acquisition of citizenship
A: By: on civil and political rights?
1. Naturalization
2. Repatriation A: Those who retain or re-acquire Philippine
3. Direct act of Congress citizenship shall enjoy full civil and political rights
subject to the following conditions:
Q: Distinguish naturalization from repatriation.
1. Right to vote: must meet the requirements of
A: Section 1, Article V of the Constitution, and of
NATURALIZATION REPATRIATION Republic Act No. 9189 (The Overseas Absentee
Nature Voting Act of 2003) and other existing laws;
A mode of acquisition Mode of reacquisition of
and reacquisition of Philippine Ccitizenship 2. Elective Public Office:
Philippine citizenship i. Possess qualification for holding such public
As to process office as required by the Constitution and
Very cumbersome and Simpler process existing laws
tedious ii. Make a personal and sworn renunciation of
any and all foreign citizenship before any
Q: How is repatriation effected? public officer authorized to administer an
oath, at the time of the filing of the
A: Repatriation shall be effected by taking the certificate of candidacy.
necessary oath of allegiance to the Republic of the

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145 FACULTY OF CIVIL LAW
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iii. Appointive Public Office - subscribe and 3. Members of Congress (Secs. 3 and 6, Art VI)
swear to an oath of allegiance to the 4. Justices of Supreme Court and lower collegiate
Republic of the Philippines and its duly courts (Sec. 7(1), Art VIII)
constituted authorities prior to their 5. Ombudsman and his deputies (Sec. 8, Art XI)
assumption of office: Provided, That they 6. Members of Constitutional Commissions
renounce their oath of allegiance to the 7. Members of the Central Monetary Authority
country where they took that oath; (Sec. 20, Art XII)
8. Members of the Commission on Human Rights
Note: That right to vote or be elected or appointed to (Sec 17 (2), Art XIII)
any public office in the Philippines cannot be exercised
by, or extended to, those who: Q: Are persons possessing dual citizenship by virtue
a. are candidates for or are occupying any public
of birth barred from running for public office?
office in the country of which they are
naturalized citizens; and/or
b. are in active service as commissioned or non- A: No, the fact that a person has dual citizenship does
commissioned officers in the armed forces of not disqualify him from running for public office.
the country which they are naturalized (Cordora v. COMELEC, G.R. No. 176947, Feb. 19, 2009)
citizens.(R.A. 9225)
Q: Dahlia, a naturalized US citizen, sought to
iv. Practice of profession: apply with the proper reacquire her Philippine citizenship. She took her
authority for a license or permit to engage in oath of allegiance to the Republic of the Philippines
such practice (R.A. 9225). before the Vice Consul. She then ran and won as
Vice Mayor of a municipality. The COMELEC,
NATURAL-BORN CITIZENS AND PUBLIC OFFICE however, disqualified her on the ground that she
failed to renounce her US citizenship.
Q: Who are natural-born citizens?
Is Dahlia disqualified from running as a candidate in
A: the local elections for her failure to make a personal
1. Citizens of the Philippines from birth without and sworn renunciation of his US citizenship?
having to perform any act to acquire or perfect
their Philippine citizenship A: Yes. Section 5(2) of R.A. 9225 (on the making of a
personal and sworn renunciation of any and all
2. Those born before January 17, 1973 of Filipino foreign citizenship) requires the Filipinos availing
mothers, who elect Philippine citizenship upon themselves of the benefits under the said Act to
reaching the age of majority accomplish an undertaking other than that which
they have presumably complied with under Section 3
Note: The term Natural-born citizens, is define to include thereof (oath of allegiance to the Republic of the
those who are citizens of the Philippines from birth Philippines). There is little doubt, therefore, that the
without having to perform any act to acquire or perfect intent of the legislators was not only for Filipinos
their Philippine citizenship. [Tecson vs. COMELEC, GR. No.
reacquiring or retaining their Philippine citizenship
161434, Mar. 3, 204)
under R.A. 9225 to take their oath of allegiance to the
Republic of the Philippines, but also to explicitly
Q: What is the rule regarding marriage of a Filipino
renounce their foreign citizenship if they wish to run
with an alien?
for elective posts in the Philippines. To qualify as a
candidate in Philippine elections, Filipinos must only
A:
have one citizenship, namely, Philippine citizenship.
GR: The Filipino retains Philippine citizenship.
The oath of allegiance contained in the Certificate of
XPN: If, by their act or omission they are
Candidacy, does not constitute the personal and
deemed, under the law, to have renounced
sworn renunciation sought under Section 5(2) of R.A.
it. (Sec.4, Art. IV, 1987 Constitution)
No. 9225. It bears to emphasize that the said oath of
allegiance is a general requirement for all those who
Q: Who are the government officials required to be
wish to run as candidates in Philippine elections;
natural-born Filipino citizens?
while the renunciation of foreign citizenship is an
additional requisite only for those who have retained
A:
or reacquired Philippine citizenship under R.A. No.
1. President (Sec.2, Art VII)
9225 and who seek elective public posts, considering
2. Vice-President (Sec. 3, Art VII)

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CITIZENSHIP

their special circumstance of having more than one


citizenship. (Jacot v. Dal, G.R. No. 179848, Nov.27,
2008)

Q: Art is a naturalized citizen of another country


who reacquires Filipino citizenship. On the other
hand, Christian possesses dual citizenship by birth.
If they desire to run for elective public office, what
requirement must they comply as regards their
citizenship?

A: Art must comply with the requirements set in R.A


9225. Sec 5(3) of R.A. 9225 states that naturalized
citizens who reacquire Filipino citizenship and desire
to run for public office shall make a personal and
sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an
oath aside from the oath of allegiance prescribed in
Section 3 of R.A. 9225.

Christian need not comply with the twin


requirements of swearing an oath of allegiance and
executing a renunciation of foreign citizenship
because he is a natural-born Filipino who did not
subsequently become a naturalized citizen of another
country. It is sufficed, if upon the filing of his
certificate of candidacy, he elects Philippine
citizenship to terminate his status as person with dual
citizenship considering that his condition in the
unavoidable consequence of conflicting laws of
different States. (Cordora v. COMELEC, G.R. No.
176947, Feb. 19, 2009)

Q: Is filing by a person with dual citizenship of a


certificate of candidacy, containing an oath of
allegiance, constituted as a renunciation of his
foreign citizenship under R.A. No. 9225?

A: No. the filing of a certificate of candidacy does


not ipso facto amount to a renunciation of his foreign
citizenship because R.A. No. 9225 provides for more
requirements. It requires the twin requirements of
swearing to an Oath of Allegiance and executing a
Renunciation of Foreign Citizenship. (Roseller De
Guzman vs. Commission on Elections, et al., G.R. No.
180048, June 19, 2009)

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147 FACULTY OF CIVIL LAW
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LAW ON PUBLIC OFFICERS 4. It is personal to the public officer.

GENERAL PRINCIPLES It is not a property transmissible to the heirs of


the public officer upon the latters death. (Santos
Q: Define public office. v. Secretary of Labor, G.R. No.L-21624, Feb 27,
1968;)
A: It is the right, authority, and duty created and
conferred by law, by which for a given period, either 5. It is not a natural right.
fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some Under our political system, the right to hold
portion of the sovereign functions of the public office exists only because and by virtue of
government, to be exercised by him for the benefit some law expressly or impliedly creating and
of the public (Fernandez v. Sto. Tomas, G.R. No. conferring it.
116418, Mar. 7, 1995).
Q: How are public offices created?
Q: What is the purpose of a public office?
A: By: VAT
A: A public office is created to effect the end for 1. The Constitution
which government has been instituted which is the 2. Valid statutory enactments
common good; not profit, honor, or private interest 3. Authority of law (Secretary of Department of
of any person, family or class of persons (63 A Am Jur Transportation and Communications v. Mabalot,
2d 667) G.R. No. 138200, Feb. 27, 2002)

Q: What are the characteristics of a public office? Q: What are the elements of a public office?

A: A: PILAC
1. It is a public trust. 1. Created by Constitution or by law or by some
body or agency to which the power to create the
The principle of public office is a public trust office has been delegated;
means that the officer holds the public office in 2. Invested with Authority to exercise some portion
trust for the benefit of the peopleto whom such of the sovereign power of the State
officers are required to be accountable at all 3. The powers conferred and the duties to be
times, and to serve with utmost responsibility, discharged must be defined directly or impliedly
loyalty, and efficiency, act with patriotism and by the Legislature or through legislative
justice, and lead modest lives. (Sec. 1, Art. XI, authority;
Constitution) 4. Duties are performed Independently without
control unless those of a subordinate.
2. It is not a property. 5. Continuing and Permanent (Fernandez v. Sto.
Tomas, G.R. No. 116418, Mar. 7, 1995; Tejada v.
The concept "public office is not a property Domingo, G.R. No. 91860, Jan. 13, 1992)
means that it is outside the commerce of man;
hence, it cannot be the subject of a contract. Q: What are the differences between public office
(Santos v. Secretary of Labor, G.R. No.L-21624, and public contract?
Feb 27, 1968)
PUBLIC
PUBLIC CONTRACT
3. It is not a vested right. OFFICE
As to Incident of Originates from the
Note: However, right to a public office is nevertheless a creation sovereignty will of the
protected right. With the exception of constitutional contracting parties,
offices that provide for some immunity as regards subject to the
salary and tenure, right to a public office is protected limitations imposed
by the constitutional provision on security of tenure. It
by law.
cannot be taken from its incumbent without due
process. (Morfe v. Mutuc,G.R. No. L-20387, Jan. 31,
As to Has for its Imposes obligations
1968; Aparri v. Court of Appeals, G.R. No. L-30057, Jan. persons object the only upon persons
31, 1984) affected carrying out of who entered the
sovereign as same.

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well as Q: What are the distinctions between career service


governmental and non-career service?
functions
affecting even CAREER SERVICE NON-CAREER SERVICE
persons not
Entrance is based on Entrance is based on
bound by
merits and fitness, which qualifications other than
contract
is determined by merit and fitness.
As to Embraces the Is almost always competitive examination
subject idea of tenure, limited in its (except for non-
matter duration, and duration and competitive positions) or
and scope continuity, specific in its based on highly technical
and the duties objects. Its terms qualifications
connected define and limit the
therewith are rights and
There is opportunity for No such opportunity
generally obligations of the
advancement to a higher
continuing parties, and neither
career position
and may depart
There is security of Tenure is limited to a
permanent. therefrom without
tenure period specified by law,
the consent of the
coterminous with the
other.
appointing authority or
subject to his pleasure,
Q: Who is a public officer?
or which is limited to the
duration of a particular
A: Any person who, by direct provision of law,
purpose (Jocom v.
popular election or appointment by competent
Regalado, G.R. No.
authority, shall take part in the performance of
77373, Aug. 22, 1991).
public functions in the government of the Philippine
Islands, or shall perform in said Government or in any
Q: President Benigno Aquino III issue Executive
of its branches, public duties as an employee, agent,
Order No. 1 creating the Philippine Truth
or subordinate official, of any rank or class. (Art. 203,
Commission (PTC). The legality of the creation of
Revised Penal Code)
the PTC was assailed before the Supreme Court. The
petitioners contend that the PTC is a public office
Note: Under Sec 2. R.A. 3019, the term public officer
includes elective and appointive officials and employees, and thus the president is without authority to
permanent or temporary, whether in the classified, create it. It was further contended that the creation
unclassified or exempt service, receiving compensation, of a public office lies within the province of the
even nominal, from the government. legislature. The Office of the Solicitor General (OSG)
countered that the creation of a fact-finding body
Q: What are the classifications of a public officer? like the PTC is covered by the Presidents power of
reorganization under the Administrative Code and
A: A public officer may be: the Presidents power of control. The OSG likewise
1. Constitutional or statutory contends that Congress has delegated to the
2. National or local President the power to create public offices by
3. Legislative, executive, or judicial virtue of P.D. 1416, as amended by P.D. 1772.
4. Lucrative or honorary
5. Discretionary or ministerial Does the creation of the PTC fall within the ambit of
6. Appointive or elective the power to reorganize as expressed in Section 31
7. Civil or military of the Revised Administrative Code?
8. De jure or de facto
A: No. The provision refers to reduction of personnel,
Q: What are the classifications of government consolidation of offices, or abolition thereof by
employment and distinguish the same? reason of economy or redundancy of functions. This
A: refers to situations where a body or an office is
1. Career Service already existent but a modification or alteration
2. Non-career Service thereof has to be effected. The creation of an office
is nowhere mentioned, much less envisioned in said

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149 FACULTY OF CIVIL LAW
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provision. To say that the PTC is borne out of a and enforcement of the laws of the land. (Ibid.)
restructuring of the Office of the President under
Section 31 is a misplaced supposition, even in the Note: The SC, however, declared the creation of PTC as
plainest meaning attributable to the term unconstitutional for violating the equal protection clause.
restructure-an alteration of an existing structure.
Evidently, the PTC was not part of the structure of MODES OF ACQUIRING TITLE TO PUBLIC OFFICE
the Office of the President prior to the enactment of
Executive Order No. 1. (Biraogo v. Philippine Truth Q: What are the modes of filling up public offices?
Commission of 2010, G.R. No. 192935, December 7,
2010) A: Public offices are filled up either by:
1. Appointment
Q: Is the creation of the PTC justified by the 2. Election
Presidents power of control. 3. Designation the mere imposition of new or
additional duties upon an officer to be performed
A: No, control is essentially the power to alter or by him in a special manner.
modify or nullify or set aside what a subordinate 4. In some instances by contract or by some other
officer had done in the performance of his duties and modes authorized by law. (Preclaro v.
to substitute the judgment of the former with that of Sandiganbayan, G.R. No. 111091, Aug. 21, 1995)
the latter. Clearly, the power of control is entirely
different from the power to create public offices. The Note: A public office, being a trust or agency created for
former is inherent in the Executive, while the latter the benefit of the people, can be obtained only in the
manner prescribed by the Constitution or by law. (The Law
finds basis from either a valid delegation from
on Public officers by Hector S. De Leon, 2008 edition,
Congress, or his inherent duty to faithfully execute Chapter 3, page 48)
the laws. (Ibid.)
The manner of selecting persons for public office is
Q: What then could be the justification for the generally by election or by appointment. (63A Am. Jur. 2d
Presidents creation of the PTC? 733)

A: The creation of the PTC finds justification under MODES AND KINDS OF APPOINTMENT
Section 17, Article VII of the Constitution, imposing
upon the President the duty to ensure that the laws Q: What is the meaning of Appointment?
are faithfully executed. The Presidents power to
conduct investigations to aid him in ensuring the A: Appointment is the act of designation by the
faithful execution of laws in this case, fundamental executive officer, board or body to whom that power
laws on public accountability and transparency is has been delegated, of the individual who is to
inherent in the Presidents powers as the Chief exercise the powers and functions of a given office.
Executive. That the authority of the President to In this sense, it is to be distinguished from the
conduct investigations and to create bodies to selection or designation by a popular vote.
execute this power is not explicitly mentioned in the [Borromeo v. Mariano, G.R. No. L-16808, Jan. 3,
Constitution or in statutes does not mean that he is 1921; F. MECHEM, A Treaties on the Law of Public
bereft of such authority. and Officers, p.42 (1890)]

The Executive is given much leeway in ensuring that It refers to the nomination or designation of an
our laws are faithfully executed. The powers of the individual to an office. (Borromeo v Mariano, G.R. No.
President are not limited to those specific powers L-16808, Jan. 3, 1921)
under the Constitution. One of the recognized
powers of the President granted pursuant to this It is, in law, equivalent to filling a vacancy. (Conde
constitutionally-mandated duty is the power to v. National Tobacco Corp., G.R. No. L-11985 Jan. 28,
create ad hoc committees. This flows from the 1961)
obvious need to ascertain facts and determine if the
laws have been faithfully executed. It should be Q: Distinguish between Appointment and
stressed that the purpose of allowing ad hoc Designation.
investigating bodies to exist is to allow an inquiry into
matters which the President is entitled to know so APPOINTMENT DESIGNATION
that he can be properly advised and guided in the It is the selection by the It merely connotes the
performance of his duties relative to the execution proper authority of an imposition of additional

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individual who is to duties, usually by law, A:


exercise the functions upon a person who is 1. Permanent Extended to a person who meets all
of a given office. already in public service the requirements for the position to which he is
by virture of an earlier being appointed, including the appropriate
appointment or election. eligibility required, for the position and thus
It connotes It implies temporariness enjoys security of tenure.
permanency and therefore does not
confer upon the designee Under Section 25(a) of the Civil Service Decree, an
security of tenure. appointment in the civil service is permanent
when issued to a person who meets all the
Q: Who has the power to appoint? requirements for the position to which he is being
appointed, including the appropriate eligibility
A: prescribed, in accordance with the provisions of
1. Inherently belongs to the people. It belongs to law, rules and standards promulgated in
where the people have chosen to place it by their pursuance thereof. It lasts until lawfully
Constitution or laws. [63A Am. Jur. 2d 738]. terminated
2. Entrusted to designated elected and appointed
public officials. The appointment of public 2. Temporary Extended to a person who may not
officials is generally looked upon as properly possess the requisite qualifications or eligibility
belonging to the executive department. and is revocable at will without necessity of just
Appointments may also be made by Congress or cause or investigation. However, if the
the courts, but when so made should be taken as appointment is for a specific period, the
an incident to the discharge of functions within appointment may not be revoked until the
their respective spheres. [Government v. Springer, expiration of the term.
50 Phil. 259 (1927), affirmed in Springer v.
Government, 277 U.S. 189, 72 Ed. 845, 48 S.CT. Under the Civil Service Decree, an appointment in
480 (1928)]. the civil service is temporary when the appointee
does not possess civil service eligibility.
Note: The general rule is that the appointing power is the Subsequent acquisition of the required eligibility
exclusive prerogative of the President, upon which no will not make a temporary appointment regular
limitations may be imposed by Congress, except those permanent.
resulting from the need of securing the concurrence of the
Commission of Appointments and from the exercise of the Note: Temporary appointments shall not exceed 12
limited power to prescribe the qualifications or months. Acquisition of civil service eligibility will not
disqualifications to a given appointive office. (Rafael v. automatically convert the temporary appointment into
Embroidery and Apparel Control and Inspections Board, a permanent one (Prov. Of Camarines Sur v. CA, G.R.
G.R. No. L-19978, Sep. 29, 1967). Where the law is silent as No. 104639, July 14, 1995).
to who is the appointing authority, it is understood to be
the President of the Philippines.
3. Regular appointment one made by the President
Absent any contrary statutory provision, the power to while the Congress is in session, which takes
appoint carries with it the power to remove or discipline. effect only after confirmation by the Commission
[Aguirre, Jr. v. De Castro, G.R. No. 127631, Dec. 17, 1999]. on Appointment and, once approved, continues
until the end of the term of the appointee.
Q: Is appointees acceptance of the office necessary
to the completion or validity of appointment? 4. Ad interim appointment one made by the
President while Congress is not in session, which
A: No. Where there is no express provision of the takes effect immediately, but ceases to be valid if:
law to the contrary, it is not necessary. a. disapproved by the Commission on
Appointments; or
Note: However, acceptance is necessary to enable the b. upon the next adjournment of Congress,
appointee to have FULL possession, enjoyment, and either in regular or special session (inaction by
responsibility of an office. (Borromeo v Mariano, G.R. No. L- the CA).
16808, Jan. 3, 1921; Lacson v. Romero, G.R. No. L-3081,
Oct. 14, 1949)
Purpose: Ad interim appointments are intended to
prevent a hiatus in the discharge of official duties.
Q: What are the classifications of appointments?
Obviously, the public office would be immobilized to

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the prejudice of the people if the President had to Q: What is a provisional appointment?
wait for Congress and the Commission of
Appointments to reconvene before he could fill a A: It is one which may be issued, upon the prior
vacancy occurring during the recess. (Guevara v. authorization of the Commissioner of the Civil
Inocentes, G.R. No. L-25577, Mar. 15, 1966) Service Commission, to a person who has not
qualified in an appropriate examination but who
Nature: Ad interim appointments are permanent otherwise meets the requirements for appointment
appointments. It is permanent because it takes effect to a regular position in the competitive service,
immediately and can no longer be withdrawn by the whenever a vacancy occurs and the filling thereof is
President once the appointee qualified into office. necessary in the interest of the service and there is
The fact that it is subject to confirmation by the CA no appropriate register of eligibles at the time of
does not alter its permanent character. In cases appointment. (Jimenea v. Guanzon, G.R. No. L-24795,
where the term of said ad interim appointee had Jan. 29, 1968)
expired by virtue of inaction by the Commission on
Appointments, he may be reappointed to the same Q: Distinguish between a provisional and a
position without violating the Constitutional temporary appointment.
provision prohibiting an officer whose term has
expired from being re-appointed (Matibag v. PROVISIONAL
TEMPORARY APPOINTMENT
Benipayo, G.R. No. 130657, Apr. 1, 2002). APPOINTMENT
Issued to a person to a Issued prior to
Being a permanent appointment, an ad interim position needed only for a authorization of CSC
appointee pending action by the Commission on limited period
Appointments enjoys security of tenure. Not to exceed 12 months/no Regular position in the
(Marombhosar v. CA, G.R. No. 126481, Feb. 18, 2000) definite tenure and is meantime that no
dependent on the pleasure of suitable eligible qualify
Q: Can the President submit to the Commission on the appointing power for the position
Appointments an appointment for confirmation Meets all requirements for Has not qualified in an
when it does not need the consent of the same? position except civil service appropriate
eligibility examination but
A: No. Sec. 16 Art. VII of the Constitution made an otherwise meets
exclusive enumeration of the appointments to be requirements for
made by the President that need to be approved by appointments
the said Commission. It is only for those
Note: Provisional appointments in general have already
appointments that consent of the Commission is
been abolished by R.A. No. 6040. However, it still applies
needed. with regard to teachers under the Magna Carta for Public
School Teachers.

Q: Distinguish regular, ad interim, temporary appointments and designation?

TEMPORARY or DESIGNATION
REGULAR AD INTERIM
ACTING
Made when Made when Congress is NOT Those which last until a The mere imposition of new or
Congress is in in session permanent additional duties upon an officer to
session appointment is issued. be performed by him in a special
manner while he performs the
function of his permanent office.
Made only after Made before such Cannot be validly The officer is already in service by
the nomination is confirmation confirmed by the CA virtue of an earlier appointment,
confirmed by CA because there was no performing other functions.
valid nomination.
Continues until the Shall cease to be valid if May be terminated at Maybe terminated anytime
expiration of the disapproved by CA or upon the pleasure of
term the next adjournment of appointing power
Congress. (Sec. 16, Art. VII, without hearing or
Constitution) cause.

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Q: What is the nature of an "acting appointment" to the position. Otherwise, it would be encroaching
a government office? Does such appointment give upon the discretion of the appointing power.
the appointee the right to claim that the (Medalla v. Sto. Tomas, G.R. 94255, May 5, 1992)
appointment will, in time, ripen into a permanent
one? Explain. Q: What is the concept of protest to appointment?

A: According to Sevilla v. CA, G.R. No. 88498, June 9, A: Any person who feels aggrieved by the
1992, an acting appointment is merely temporary. As appointment may file an administrative protest
held in Marohombsar v. Alonto, G.R. No. 93711, Feb. against such appointment. Protests are decided in
25, 1991, a temporary appointment cannot become a the first instance by the Department Head, subject to
permanent appointment, unless a new appointment, appeal to the CSC.
which is permanent, is made.
The protest must be for a cause (i.e. appointee is not
It is well-settled that one who holds a temporary or qualified; appointee was not the next-in-rank;
acting appointment has no fixed tenure of office, and, unsatisfactory reasons given by the appointing
therefore, his enjoyment can be terminated at the authority in making the questioned appointment).
pleasure of the appointing power even without The mere fact that the protestant has the more
hearing or cause. (Erasmo v. Home Insurance & impressive resume is not a cause for opposing an
Guaranty Corporation, G.R. No. 139251. Aug. 29, appointment (Aquino v. CSC, G.R. No. 92403, April 22,
2002). However, if the acting appointment was made 1992).
because of a temporary vacancy, the temporary
appointee holds office until the assumption of office Q: What is the concept of revocation and recall
by the permanent appointee. In such case, the of appointment?
appointing authority cannot use the acting
appointment as a justification in order to evade or A: Where an appointment requires the approval of
avoid the security of tenure principle provided for the CSC, such appointment may be revoked or
under the Constitution and the Civil Service Law. withdrawn by the appointing authority any time
(Gayatao v. Civil Service Commission, G.R. No. 93064, before the approval by the CSC. After an appointment
June 22, 1992). is completed, the CSC has the power to recall an
appointment initially approved on any of the
Q: Distinguish between an "appointment in an following grounds:
acting capacity" extended by a Department 1. Non-compliance with procedures/criteria in merit
Secretary from an ad interim appointment extended promotion plan;
by the President. 2. Failure to pass through the selection board;
3. Violation of existing collective relative agreement
A: An appointment in an acting capacity extended by to promotion;
a Department Secretary is temporary. Hence, the 4. Violation of CSC laws, rules and regulations
Department Secretary may terminate the services of (Debulgado v. CSC, G.R. No. 111471, Sept. 26,
the appointee at any time. 1994)

On the other hand, an ad interim appointment ELIGIBILITY AND QUALIFICATION REQUIREMENTS


extended by the President is an appointment which is
subject to confirmation by the Commission on Q: What are the requirements for public office?
Appointments and was made during the recess of
Congress. As held in Summers v. Ozaeta (G.R. No. L- A:
1534, Oct. 24, 1948), an ad interim appointment is 1. Eligibility It is the state or quality of being legally
permanent. fit or qualified to be chosen.
2. Qualification This refers to the act which a
Q: Can the CSC revoke an appointment by the person, before entering upon the performance of
appointing power and direct the appointment of an his duties, is by law required to do such as the
individual of its choice? taking, and often, subscribing and filing of an
official oath, and, in some cases, the giving of an
A: No. The CSC cannot dictate to the appointing official bond. It may refer to:
power whom to appoint. Its function is limited to a. Endowments, qualities or attributes which
determining whether or not the appointee meets the make an individual eligible for public office,
minimum qualification requirements prescribed for (e.g. citizenship); or

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153 FACULTY OF CIVIL LAW
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b. The act of entering into the performance of the disqualifications that it has to provide qualification
functions of a public office, (i.e. taking oath of for office.
office).
However, Congress may not add disqualification
Note: To entitle a public officer to hold a public office, he where the Constitution has provided them in such a
must possess all the qualifications and none of the way as to indicate intention that the disqualifications
disqualifications prescribed by law for the position not only provided shall embrace all that are to be permitted.
at the time of his election or appointment but also during
Moreover, when the Constitution has attached a
his incumbency.
disqualification to the holding of any office, Congress
cannot remove it under the power to prescribe
Q: What are the formal requirements of public
qualifications as to such offices as it may create. (46
officers?
C.J. 936-937)
A:
1. Citizenship
Q: When does the right of the public officer to enter
2. Age
in office perfected?
3. Residence
4. Education
A: Upon his oath of office, it is deemed perfected.
5. Suffrage
Only when the public officer has satisfied this
6. Civil service examination
prerequisite can his right to enter into the position be
7. Ability to read and write
considered complete. Until then, he has none at all,
8. Political affiliation as a rule, it is not a qualification
and for as long as he has not qualified, the holdover
XPN: in Party-List, Membership in the
officer is the rightful occupant. (Lecaroz v.
Electoral Tribunal, Commission on
Sandiganbayan, G.R. No. 130872, Mar. 25, 1999)
Appointment

Note: The qualifications for public office are continuing


requirements and must be possessed not only at the time DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS
of appointment or election or assumption of office but
during the officers entire tenure. Once any of the required Q: State the prohibitions imposed under the 1987
qualification is lost, his title may be reasonably challenged. Constitution against the holding of 2 or more
(Frivaldo V. COMELEC, G.R. No. 87193, June 23, 1989; Labo positions.
v. COMELEC, G.R. No. 86564 August 1, 1989; Aguila v.
Genato, G. R No. L-55151, Mar. 17, 1981) A:
A. Members of Congress shall not:
Q: Who has the power to prescribe qualifications? 1. Appear as counsel before any court, electoral
tribunal, or quasi-judicial and other administrative
A: Congress is generally empowered to prescribe the bodies;
qualifications for holding public office, provided it 2. Shall not be interested in any contract with, or in
does not exceed thereby its constitutional powers or any franchise, or special privilege granted by the
impose conditions of eligibility inconsistent with Government, or any subdivision, agency or
constitutional provisions. (De Leon, Law on Public instrumentality thereof, including GOCCs, or its
Officers 2008 ed.) subsidiary;
3. Shall not intervene in any matter before any office
Q: When is Congress without power to prescribe of the Government for his pecuniary benefit or
qualifications? where he may be called upon to act on account of
his office
A: When the office is created by the Constitution.
Congress has no power to require qualifications other B. The President, Vice President, Members of the
than those qualifications specifically set out in the Cabinet, and their deputies or assistants, unless
Constitution. Such Constitutional criteria are otherwise allowed by the Constitution, shall not:
exclusive. (De Leon, Law on Public Officers 2008 ed.) 1. Directly or indirectly practice any other
profession;
Q: What is the rule regarding the power of Congress 2. Participate in any business, or be financially
to prescribe disqualifications? interested in any contract with, or in any
franchise, or special privilege granted by the
A: In the absence of constitutional inhibition, Government, or any subdivision, agency or
Congress has the same right to provide instrumentality thereof, including GOCCs, or its

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LAW ON PUBLIC OFFICERS

subdivisions; shall avoid conflict of interest in the Q: State the two classes of office which a member of
conduct of their office Congress is disqualified to hold under Article VI,
Section 13 of the constitution.
C. Members of the Constitutional Commission shall
not: A:
1. Hold any other office or employment or engage in 1. Incompatible Office
the practice of any profession or in the active 2. Forbidden Office
management or control of any business that may
be affected by the functions of his office; Note: See further discussion under Legislative Department
chapter.
2. Be financially interested, directly or indirectly, in
any contract with, or in any franchise, or special
Q: What is the rule against the appointment of
privilege granted by the Government, or any
members of the official family of the President?
subdivision, agencies or instrumentalities
including GOCCs, or their subsidiaries. These shall
A: The spouses and relatives by consanguinity or
also apply to the Ombudsman and his deputies th
affinity within the 4 civil degree of the President
during his term.
shall not be appointed as members of the
Constitutional Commissions, Office of the
D. Unless otherwise allowed by law or by the primary
Ombudsman, or as Secretaries, Undersecretaries,
functions of his position, no appointive official shall
chairmen or heads of bureaus or offices, including
hold any other office or employment in the
GOCCs and their subsidiaries during his tenure. (Sec.
Government or any subdivision, agency or
13, Art. VII, Constitution)
instrumentality thereof, including GOCCs or their
subsidiaries. (Art. IX B, Sec. 7; Flores vs. Drilon, G.R.
Q: What are the exceptions to the rule against
No. 104732 June 22, 1993)
holding 2 or more positions by public officers, as
allowed by the Constitution?
E. No member of the armed forces in the active
service shall, at any time, be appointed or designated
A: The Vice-President being appointed as a member
in any capacity to a civilian position in the
of the Cabinet under Section 3, par. (2), Article VII; or
government including GOCCs or any of their
acting as President in those instances provided under
subsidiaries. (Art XVI Sec. 5 par. 4)
Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the
Q: What are the grounds for disqualification to hold
Judicial and Bar Council by virtue of Section 8 (1),
office?
Article VIII.
A:
Note: The Supreme Court held that while all other
1. Mental or physical incapacity appointive officials in the Civil Service are allowed to hold
2. Misconduct or commission of a crime other office or employment in the government during their
3. Impeachment tenure when such is allowed by law or by the primary
4. Removal or suspension from office functions of their positions, members of the Cabinet, their
5. Previous tenure of office deputies and assistants may do so only when expressly
6. Consecutive terms exceeding the allowable authorized by the Constitution itself. (Civil Liberties Union v
number of terms Executive Secretary, 194 SCRA 317)
7. Holding more than one office (except ex officio)
8. Relationship with the appointing power Q: What are the other prohibitions imposed on
(nepotism) public officers?
9. Office newly created or the emoluments of which
have been increased (forbidden office) A:
10. Being an elective official (Flores v Drilon, G.R. No. 1. Prohibition against solicitation of gifts (Sec. 7(d),
104732, June 22, 1993) R.A. No. 6713)
11. Losing candidate in the election within 1 year
Note: Public officers, however, may accept the
following the date of election (prohibitions from
following gifts from foreign governments:
office not employment); and a. Gifts of nominal value received as souvenir or mark
12. Grounds provided for under the local of courtesy;
government code. b. Scholarship or fellowship grant or medical
treatment;
c. Travel grants or expenses for travel outside the
Philippines (Sec. 7(d), R.A. No. 6713)

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155 FACULTY OF CIVIL LAW
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2. Prohibition against partisan political activities (Sec. A: While the Constitution recognizes the right of
2(4), Art. IX(B), Constitution) public employees to organize, they are prohibited
from staging strikes, demonstrations, mass leaves,
Note: Partisan political activity is an act designed to walk-outs and other forms of mass action which may
promote the election or defeat of a particular result to temporary cessation