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I. ST.

PAUL UNIVERSITY-DUMAGUETE

VISION:

St. Paul University Dumaguete is committed to the formation of integrated


persons, will become the center of excellence in Catholic Education dedicated to
building a just and humane society. 1

MISSION:

St. Paul University Dumaguete is committed to evangelization through


Catholic Education. Impelled by the charity of Christ and imbued with the zeal of St.
Paul, the University inculcates the Paulinian Core Values in innovative academic
programs, relevant research and meaningful community extension initiatives. 2

A meticulous reading of SPUDs Vision/Mission statements reveals that one of


its focal thrusts is the inculcation of Catholic Education in its academic curriculum.
As such, there is no seeming conflict as to what SPUD would like to realize
especially if the students, stakeholders and the community it serve belong to a
religious denomination believing in Jesus Christ as God. An interesting question,
however, may be posed whether such incorporation of Catholic Education would
create an irreconcilable conflict to students belonging to a religious denomination
called Islama religion believing in Jesus not as a God and son of God, but a
profound messenger of God.

Read! It is through reading that one will know the truth, and the truth will set
you free. Seeking knowledge is a lifelong endeavor, from cradle to grave. As a
practicing Muslim, it is my duty to seek knowledge, whether in the realm of secular
or ecclesiastical sphere. This is so because Prophet Muhammad (peace be upon
him) said: Seeking knowledge is incumbent upon every Muslim, male and female.
Interestingly, even the very first word of the Quran revealed to the Prophet (pbuh)
was the word read. It was the first command in Islam ordained by the Almighty
(swt); hence, every man should read for it is his duty in order to increase his
knowledge. There is no excuse for a Muslim to stay idly by not seeking knowledge.
In fact, the Prophet himself (pbuh) made a supplication to the Almighty saying: My
Lord, increase me in knowledge.

To be clear, the pursuit of knowledge is not confined only to Islamic teachings


and doctrines or for religious purposes only. It may be for other non-religious
purposes for as long the pursuit of knowledge is coupled with the right intention.
According to the Islamic teachings, seeking knowledge is one of the great acts of
worship that lead one to the path of the Almighty (swt). It is the intention behind
seeking knowledge that is more important than the knowledge itself. Seeking
knowledge with a divine intention, for the pleasure of the Creator and serving His
creations, leads one to light, but seeking knowledge for personal or worldly gain
only leads a person to ignorance. The Prophet (pbuh) said: Knowledge is not
acquired through extensive learning. Rather, it is the light that God sends in the
heart of whomever He wishes to guide.

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Further, Imam Ali (may Allah be pleased with him), cousin of the Prophet
(pbuh), said: A person setting forth for the acquisition of knowledge is like the one
who struggles in the way of God. As mentioned earlier, knowledge can be pursued
for non-religious purpose. But what if a Muslim pursues knowledge in a catholic
school? Is it permissible? Yes, it is permissible. Sharia ruling permits Muslim
students to study in catholic schools provided that there is strict observance of the
limitations set forth by the Almighty (swt).
Undoubtedly, catholic schools pose a great risk to Muslim students who are
ignorant or have little knowledge of Islam and its teachings. These catholic schools
provide instructions and lessons in which there is approval and praise of a belief
which runs contrary to the teachings of Islam, e.g., the belief that Jesus (pbuh) is
God. However, if Muslim students in catholic schools have a sound understanding of
the teachings of Islam, and they go to these schools, for secular purposes, in order
learn skill, profession or specific knowledge, and they are confident that they will
not be influenced or forced to learn any of the subjects dealing with Catholicism,
and they are not compelled to do any Christian acts of worship, then it is
permissible.

Personally, my purpose of enrolling here in SPUD is purely secular, not


ecclesiastical. Nevertheless, granting arguendo that my secular study here in SPUD
will require me to take subjects purely ecclesiastical in nature as a pre-requisite to
earning a masters degree, then I would take that as a privilege and as a challenge
because I consider myself too as a Christian. Yes, I am a Christian. The sad fact is
that not too many Muslims around the globe know that they are also Christians. As
an observant Muslim, I am also bound to improve myself as a Christian and behave
like a Christian.

Christianity is not new to me because since I was young I had been reading
the Bible, had listened to holy masses, and had attended bible studies and
expositions, and from these noble activities my religious knowledge about
Christianity had significantly increased. And why I should I refrain myself from
seeking knowledge from my Christian brethren when I was commanded by the
Almighty (swt) and advised by the Prophet (pbuh) to seek knowledge. This is not to
sound like I am too knowledgeable about Christianity but what I am trying to
impress here is that I am already discerning enough to know what is the truth.

From my reading of the Bible, I learned what Jesus (pbuh) truly preached, and
that is to worship only one true God. In the Bible, Jesus (pbuh) said: "Don't
misunderstand why I have come. I did not come to abolish the law of Moses or the
writings of the prophets. No, I came to accomplish their purpose. The law of Moses
and the prophets before Moses (pbuh) enjoined monotheism. What Jesus (pbuh)
preached in the Bible is confirmed in the Quran when He (pbuh) said: And I have
come confirming that which was before me of the Torah (law of Moses), and to
make lawful to you part of what was forbidden to you, and I have come to you with
a proof from your Lord. So fear Allah and obey me. Truly! Allah is my Lord and your
Lord, so worship Him (Alone). This is the Straight Path.

Most certainly, I am a Muslim and a Christian. Islam teaches us that no


Muslim is a Muslim unless he is also a Christian. From the word of Jesus (pbuh), I am
a Christian in a sense that I follow what Jesus (pbuh) commanded his companions

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and his followers. This might be a prejudicial statement but Muslims are more
Christian than Christians themselves and every Muslim is a walking representation
of Jesus (pbuh). I believe in one true Godthe God of Adam, Noah, Abraham, Jacob,
Joseph, Job, Moses, David, Solomon, Jonah, Jesus and Muhammad (peace be upon
them all).

To conclude, I believe in Jesus (pbuh). I believe in the mother of Jesus, the


Virgin Mary (pbuh). I believe she was a pious and noble woman chosen over all of
the women of the world. I believe that Jesus (pbuh) was born miraculously of a
virgin mother and no father. However, I do not believe that Jesus (pbuh) was the son
of God. God is so powerful and self-sufficient that He does not need a son or any
kind of partner. I believe that Jesus (pbuh) did not die on the cross. Rather, Allah
(swt) saved him and he (pbuh) was taken up by Allah (swt) to Heaven. I believe that
Jesus (pbuh) performed miracles by the Will of Allah (swt), like healing the blind and
those with leprosy. Lastly, it may not be amiss to add at this point that in Arabic
Bible the name for God is Allah. Therefore, Arab Christians call God Allah as Muslim
do as well.

II. CONCEPT, SCOPE, CONCERNS OF ADMINISTRATIVE LAW

In general sense, administrative law embraces all the law the law that
controls, or is intended to control, the administrative operations of government. 3
Administrative law belongs to the field of public law which includes constitutional
law, criminal law, and international law. There is no agreement as to the scope or
bounds of the term.4

Broadly conceived, administrative law covers the following: (1) the law which
fixes the administrative organization and structure of the government; (2) the law,
the execution or enforcement of which is entrusted to administrative authorities; (3)
the law which governs public officers including their competence (to act), rights,
duties, liabilities, election, etc.; (4) the law which creates administrative agencies,
defines their powers and functions, prescribes their procedures, including the
adjudication or settlement by them of contested matters involving private interests;
(5) the law which provides the remedies, administrative or judicial, available to
those aggrieved by administrative actions or decisions; (6) the law which governs
judicial review of, or relief against, administrative actions or decisions; (7) the rules,
regulations, orders and decisions (including presidential proclamations) made by
administrative authorities dealing with the interpretation and enforcement of the
laws entrusted to their administration; and (8) the body of judicial decisions and
doctrines dealing with any of the above.

Thus, administrative law embraces not only the law that governs
administrative authorities, i.e., the Constitution (pertinent provisions thereof),
statutes, and judicial decisions that construe and apply them as well as appropriate
principles of justice and equity in particular cases, but also the law made by
administrative authorities, i.e., rules, regulations, orders and decisions, whether of
general or particular applicability.5

IIA. Origin and Development of Philippine Administrative Law

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The origin and development of administrative law can be traced from the
WHEREAS Clauses of Executive Order No. 292, also known as Administrative Code of
1987, which reads as follows:

WHEREAS, the Administrative Code currently in force was first forged in 1917
when the relationship between the people and the government was defined by the
colonial order then prevailing;

WHEREAS, efforts to achieve an integrative and over-all recodification of its


provisions resulted in the Administrative Code of 1978 which, however, was never
published and later expressly repealed;

WHEREAS, the effectiveness of the Government will be enhanced by a new


Administrative Code which incorporates in a unified document the major structural,
functional and procedural principles and rules of governance; and

WHEREAS, a new Administrative Code will be of optimum benefit to the


people and Government officers and employees as it embodies changes in
administrative structures and procedures designed to serve the people.

The Code is a general law and "incorporates in a unified document the major
structural, functional and procedural principles of governance," and "embodies
changes in administrative structure and procedures designed to serve the
people." The Code is divided into seven (7) Books: (a) Book I deals with Sovereignty
and General Administration; (b) Book II with the Distribution of Powers of the three
branches of Government; (c) Book III on the Office of the President; (d) Book IV on
the Executive Branch; (e) Book V on Constitutional Commissions; (f) Book VI on
National Government Budgeting; and (g) Book VII on Administrative Procedure.

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These Books contain provisions on the organization, powers and general
administration of the executive, legislative and judicial branches of government, the
organization and administration of departments, bureaus and offices under the
executive branch, the organization and functions of the Constitutional Commissions
and other constitutional bodies, the rules on the national government budget, as
well as guideline for the exercise by administrative agencies of quasi-legislative and
quasi-judicial powers. The Code covers both the internal administration of
government, i.e, internal organization, personnel and recruitment, supervision and
discipline, and the effects of the functions performed by administrative officials on
private individuals or parties outside government. 6

IIB. Principal Subdivisions of Administrative Law

The broad scope of administrative law as enshrined in the 1987


Administrative Code covers those of internal as well as those of external
administrations. The internal administration considers the legal aspects of public
administration as a going concern. It treats of the legal relations between the
government and its administrative officers, and of the legal relations that one
administrative officer or organ bears to another.

In contrast, the external administration refers to the legal relations between the
administrative authorities and private interests. This is the chief concern of
administrative law, which is the protection of private rights, the subject of which is
the nature and the mode of exercise of administrative power and the system of
reliefs against administrative action.7

IIC. Advantages of Administrative Process

The term administrative process includes the whole of the series of acts of
an administrative agency whereby the legislative delegation of a function is made
effectual in particular situations. It embraces matters concerning the procedure in
the disposition of both routine and contested matters, and the matter in which
determinations are made, enforced, and reviewed. 8
The reasons for resort to the administrative process or to put it in another
way, the advantages of administrative action over both legislative and judicial
action, are varied and numerous. The advantages include, but are not limited to, the
following:

1. Advantages of administrative adjudication as compared with executive


action.Quasi-judicial agencies, in exercise of their quasi-judicial power,
perform functions similar to those of courts of justice. This means that an
administrative agency, clothed with quasi-judicial power and in the
exercise thereof, receives evidence, ascertains the facts therefrom,
determines what the law is and what the legal rights of the parties are,
and on the basis of all these decides the controversy and renders
judgment thereon.9

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2. Limitations upon the powers of courts.Factual findings of administrative
bodies, being considered experts in their field, are binding on the Supreme
Court.10 Factual findings of administrative agencies, especially when
affirmed by the Court of Appeals are conclusive upon this Court. 11 Well-
established is the rule that findings of administrative agencies are
accorded not only respect but also finality when the decision or order is
not tainted with unfairness or arbitrariness that would amount to grave
abuse of discretion.12 However, factual findings of administrative agencies
are not infallible and will be set aside when they fail the test of
arbitrariness.13

3. Trend toward preventive legislation.Administrative agencies posses


quasi-legislative or rule making powers and quasi-judicial or
administrative adjudicatory powers. Quasi-legislative or rule making
power is the power to make rules and regulations which results
in delegated legislation that is within the confines of the granting statute
and the doctrine of non-delegability and separability of powers. 14

4. Limitations upon effective legislative action.With the proliferation of


specialized activities and their attendant peculiar problems, the national
legislature has found it more and more necessary to entrust to
administrative agencies the authority to issue rules to carry out the
general provisions of the statute. This is called the "power of subordinate
legislation." With this power, administrative bodies may implement the
broad policies laid down in a statute by "filling in the details which the
Congress may not have the opportunity or competence to provide. This is
effected by their promulgation of what are known as supplementary
regulations, such as the implementing rules issued by the Department of
Labor on the new Labor Code. These regulations have the force and effect
of law.15

5. Limitations upon exclusively judicial enforcement.It would appear


absurd to deny to the Civil Service Commission the power or authority or
order execution of its decisions, resolutions or orders which, it should be
stressed, it has been exercising through the years. It would seem quite
obvious that the authority to decide cases is inutile unless accompanied
by the authority to see that what has been decided is carried out. Hence,
the grant to a tribunal or agency of adjudicatory power, or the authority to
hear and adjudge cases, should normally and logically be deemed to
include the grant of authority to enforce or execute the judgments it thus
renders, unless the law otherwise provides. 16

6. Advantages of continuity of attention and clearly allocated responsibility.


Administrative agencies have the time and facilities to become and to
remain continuously informed, and they can be given unified responsibility
for effectuating the broad policies laid down by Congress. 17 For as long as
the agency concerned will be able to promulgate rules and regulations to
implement a given legislation and effectuate its policies, and that these
regulations are germane to the objects and purposes of the law and not in

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contradiction to but in conformity with the standards prescribed by the
law, then the standards may be deemed sufficient. 18

7. Need for organization to dispose of volume of business and to provide the


necessary records.The Social Security System (SSS), for example, must
have the specialized staffs and machinery to keep and make available the
records upon which judgment on thousands of claims and applications
must be based. In varying degrees, this is true of other agencies. "In the
registration of securities, the Securities and Exchange Commission (SEC)
must be organized to collect and collate huge masses of data available for
immediate reference by clerks, accountants, analysts, oil and gas experts,
engineers and the like."19

IID. Criticisms against Administrative Action


A
The recognized weaknesses of administrative agencies considered typical
have been summed up as follows: (1)Tendency towards arbitrariness; (2) Lack of
legal knowledge and aptitude in sound judicial technique; (3) Susceptibility to
political bias or pressure, often brought about by uncertainty of tenure; (4) A
disregard for the safeguards that insure a full and fair hearing; (5) Absence of
standard rules of procedure suitable to the activities of each agency; and (6) A
dangerous combination of legislative, executive, and judicial functions. 20

IIE. Forces Shaping the Philippine Administrative System

The doctrine of separation of powers does not absolutely prohibit delegation


of legislative power. The Constitution itself makes the delegation of legislative
power to the President, the Supreme Court, and the local government. 21 The
principle of non-delegation of powers is applicable to all the three major powers of
the Government but is especially important in the case of the legislative power
because of the many instances when delegation is permitted. The occasions are
rare when executive or judicial powers have to be delegated by the authorities to
which they legally pertain. In the case of legislative power, however, such occasions
have become more and more frequent, if not necessary. 22

The grant of the rule-making power to administrative agencies is a relaxation


of the principle of separation of powers and is an exception to the non-delegation of
legislative powers. Administrative regulations or "subordinate legislation" calculated
to promote the public interest are necessary because of "the growing complexity of
modern life, the multiplication of the subjects of governmental regulations, and the
increased difficulty of administering the law." 23

The latest in our jurisprudence indicates that delegation of legislative power


has become the rule and its non-delegation the exception. The reason is the
increasing complexity of modern life and many technical fields of governmental
functions. This is coupled by the growing inability of the legislature to cope directly
with the many problems demanding its attention. The growth of society has
ramified its activities and created peculiar and sophisticated problems that the
legislature cannot be expected reasonably to comprehend. Specialization even in
legislation has become necessary. To many of the problems attendant upon present

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day undertakings, the legislature may not have the competence, let alone the
interest and the time, to provide the required direct and efficacious, not to say
specific solutions.24

One thing, however, is apparent in the development of the principle of


separation of powers and that is that the maxim of delegatus non potest delegare
or delegata potestas non potest delegare, adopted this practice but which is also
recognized in principle in the Roman Law has been made to adapt itself to the
complexities of modern government, giving rise to the adoption, within certain
limits of the principle of "subordinate legislation," not only in the United States and
England but in practically all modern governments.

Accordingly, with the growing complexity of modern life, the multiplication of


the subjects of governmental regulation and the increased difficulty of
administering the laws, there is a constantly growing tendency toward the
delegation of greater power by the legislature, and toward the approval of
the practice by the courts."25. These solutions may, however, be expected from its
delegates, who are supposed to be experts in the particular fields assigned to
them.26

The delegation of legislative powers now being the accepted rule,


administrative agencies have powers and functions which may be administrative,
investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as
may be conferred by the Constitution or by statute. They have in fine only such
powers or authority as are granted or delegated, expressly or impliedly, by law. And
in determining whether an agency has certain powers, the inquiry should be from
the law itself. But once ascertained as existing, the authority given should be
liberally construed.27

III. SOVEREIGNTY AND GENERAL ADMINISTRATION

Inherent in every state is the attribute of sovereignty. The word sovereignty


is defined as the possession of sovereign power; supreme political authority;
paramount control of the constitution and frame of government and
its administration.28 Sovereignty is the right to exercise the functions of a State to
the exclusion of any other State. It is often referred to as the power of imperium,
which is defined as the government authority possessed by the State. 29

Nothing is better settled than that the Philippines being independent and
sovereign, its authority may be exercised over its entire domain. There is no portion
thereof that is beyond its power. Within its limits, its decrees are supreme, its
commands paramount. Its laws govern therein, and everyone to whom it applies
must submit to its terms. That is the extent of its jurisdiction, both territorial and
personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a
diminution of its sovereignty.30 Sovereignty cannot admit of any kind of subtraction.
It is indivisible. It must be forever whole or it is not sovereignty. 31

In the Philippines, a republican and unitary state, sovereignty resides in the


people and all government authority emanates from them. The peoplethe
repository of sovereignty in a republican stateis treated as "that particular

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organized assembly of individuals in which, according to the Constitution, the
highest power exists." This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is sovereign. In consequence, the
people may thus write into the Constitution their convictions on any subject they
choose in the absence of express constitutional prohibition. 32

There is no government in the Philippines except the one established by the


Constitution, and such government is constituted by the whole and complete
structure, wherein the Legislative Department, the Executive Department, the
Judicial Department are each one but a part of a united system, deriving all its
powers from the people, on whom sovereignty resides. The President is not the
government. He is but the highest personal authority within it. Congress is not the
government; neither are its component chambers-the Senate and the House of
Representatives. It only holds the highest power of determining the national policies
through laws it may enact. Neither the Supreme Court nor the whole judicial
machinery is the government, although to make effective the supremacy of the law,
the Constitution placed in the Supreme Court the conclusive power of saying the
last word on all matters and controversies where law and justice are invoked. 33

However, sovereignty is not an inflexible concept for it can be subjected to


limitations under international laws or treaties. It is to be admitted that any state
may, by its consent, express or implied, submit to a restriction of its sovereign
rights. There may thus be a curtailment of what otherwise is a power plenary in
character. That is the concept of sovereignty as auto-limitation, which, in the
succinct language of Jellinek, "is the property of a state-force due to which it has the
exclusive capacity of legal self-determination and self-restriction." A state then, if it
chooses to, may refrain from the exercise of what otherwise is illimitable
competence.34

While sovereignty has traditionally been deemed absolute and all-


encompassing on the domestic level, it is however subject to restrictions and
limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a
member of the family of nations. Unquestionably, the Constitution did not envision a
hermit-type isolation of the country from the rest of the world. In its Declaration of
Principles and State Policies, the Constitution "adopts the generally accepted
principles of international law as part of the law of the land." By the doctrine of
incorporation, the country is bound by generally accepted principles of international
law, which are considered to be automatically part of our own laws. One of the
oldest and most fundamental rules in international law is pacta sunt servanda
international agreements must be performed in good faith. 35

By their inherent nature, treaties really limit or restrict the absoluteness of


sovereignty. By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived from a
convention or pact. After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they also commonly agree
to limit the exercise of their otherwise absolute rights. The sovereignty of a state
therefore cannot in fact and in reality be considered absolute. Certain restrictions
enter into the picture: (1) limitations imposed by the very nature of membership in
the family of nations and (2) limitations imposed by treaty stipulations. As aptly put

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by John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-
sufficient nationalism is over. The age of interdependence is here." Thus, when the
Philippines joined the United Nations as one of its 51 charter members, it consented
to restrict its sovereign rights under the "concept of sovereignty as auto-
limitation."36

IIIA. The National Territory

Per Section 3, Chapter 1, Book I of the Administrative Code of 1987, the


national territory is defined as follows:

Section 3. What Comprises National Territory. - The national territory


comprises the Philippine archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other submarine
areas. The waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the
Philippines.
The 1987 Constitution defines the "national territory" to include not only
islands or rocks above water at high tide but also the seabed, subsoil and other
submarine areas "over which the Philippines has sovereignty or jurisdiction." Article
1 of the 1987 Constitution provides:

The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between, and connecting
the islands of the archipelago, regardless of their breadth and dimensions, form
part of the internal waters of the Philippines.

Thus, the Philippine "national territory" refers to areas over which the
Philippines has "sovereignty or jurisdiction." The Constitution mandates: "The State
shall protect the nation's marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens."

Under both customary international law and the 1982 United Nations
Convention on the Law of the Sea (UN CLOS), the Philippines has "sovereign rights"
and "jurisdiction" to exploit exclusively all the living and non-living resources within
its EEZ. Under the UNCLOS, the Philippines has the sovereign rights to exploit
exclusively the mineral resources within its ECS. Under the UNCLOS, the Philippines
also has sole "jurisdiction" to create artificial islands or install structures within its
EEZ and ECS.

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In short, under international law and in particular under the UNCLOS, the
Philippines has jurisdiction over its EEZ and ECS. Thus, under domestic law, the
Philippines' EEZ and ECS form part of Philippine "national territory" since the
Constitution defines "national territory" to include areas over which the Philippines
has "jurisdiction," a term which means less than sovereignty. However, under
international law, the Philippine "national territory" refers to the areas over which
the Philippines has sovereignty, referring to the Philippines' land territory,
archipelagic waters and territorial sea, excluding areas over which the Philippines
exercises only jurisdiction like its EEZ and ECS.

China has already invaded repeatedly Philippine "national territory" in two


separate areas, one in the Kalayaan Island Group in the Spratlys and the other in
Scarborough Shoal. When China seized in 1988 Subi Reef, a submerged area within
the Philippines' ECS and beyond the territorial sea of any high tide feature, China
invaded Philippine national territory as defined in the Constitution. When China
seized in 1995 Mischief Reef, a submerged area within the Philippines' EEZ and
beyond the territorial sea of any high tide feature, China invaded Philippine national
territory as defined in the Constitution. When China seized in 2012 Scarborough
Shoal, a rock above water at high tide and constituting land territory under
international law, China invaded Philippine national territory as defined in the
Constitution and as understood in international law. Republic Act No. 9522,
amending the Philippine Baselines Law, expressly declares that Scarborough Shoal
is part of Philippine territory over which the Philippines exercises "sovereignty and
jurisdiction."37

IIIB. The People

The pertinent provisions of the 1987 Philippine Constitution pertaining to


citizenship are found in Article IV on Citizenship, which reads:

Section 1. The following are citizens of the Philippines:

1. Those who are citizens of the Philippines at the time of the adoption of
this Constitution;

2. Those whose fathers or mothers are citizens of the Philippines;

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3. Those born before January 17, 1973, of Filipino mothers, who elect
Philippine Citizenship upon reaching the age of majority; and

4. Those who are naturalized in the accordance with law.

Section 2. Natural-born citizens are those who are citizens of the Philippines
from birth without having to perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born citizens.

Section 3. Philippine citizenship may be lost or reacquired in the manner


provided by law.

Section 4. Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission they are deemed, under the law to have
renounced it.

Section 5. Dual allegiance of citizens is inimical to the national interest and


shall be dealt with by law. (Italics supplied.)

A similar provision is also found in Sections 5 to 9, Chapter 2, Book I on


Sovereignty and General Administration of Executive Order No. 292, series of 1987,
otherwise known as the Administrative Code of 1987.

Citizenship is a treasured right conferred on those whom the state believes


are deserving of the privilege. It is a "precious heritage, as well as an inestimable
acquisition," that cannot be taken lightly by anyoneeither by those who enjoy it or
by those who dispute it.38

Citizenship is personal and more or less permanent membership in a political


community. It denotes possession within that particular political community of full
civil and political rights subject to special disqualifications. Reciprocally, it imposes
the duty of allegiance to the political community. The core of citizenship is the
capacity to enjoy political rights, that is, the right to participate in government
principally through the right to vote, the right to hold public office and the right to
petition the government for redress of grievance. 39

Modern law recognizes three distinct modes of acquiring citizenship: (1) Jus
sanguinisacquisition of citizenship on the basis of blood relationship; (2) Jus soli
acquisition of citizenship on the basis of the place of birth; (3) naturalizationthe

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legal act of adopting and alien and clothing him with the privilege of a native-born
citizen. Basic Philippine law follows the rule of jus sanguinis.40

The signing into law of the 1935 Philippine Constitution has established the
principle of jus sanguinis as basis for the acquisition of Philippine citizenship. So
also, the principle of jus sanguinis, which confers citizenship by virtue of blood
relationship, was subsequently retained under the 1973 and 1987 Constitutions.41

There are generally two classes of citizens: (1) natural-born citizens and (2)
naturalized citizens,42 and there are two ways of acquiring citizenship: (1) by birth,
and (2) by naturalization. These ways of acquiring citizenship correspond to the two
kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who
at the time of his birth is a citizen of a particular country, is a natural-born citizen
thereof.

As defined in the 1987 Philippine Constitution, natural-born citizens "are


those citizens of the Philippines from birth without having to perform any act to
acquire or perfect his Philippine citizenship." 43 Under this definition, there are two
requisites in order that a Filipino citizen may be considered "natural-born": (1) one
must be a citizen of the Philippines from birth, and (2) one does not have to do
anything to acquire or perfect one's Philippine citizenship. However, the present
Constitution has expanded the scope of natural-born citizens to include "those who
elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof,"
meaning those covered under class (2) above. Consequently, only naturalized
Filipino citizens are not considered natural-born citizens.

On the other hand, naturalized citizens are those who have become Filipino
citizens through naturalization. Naturalization signifies the act of formally adopting
a foreigner into the political body of a nation by clothing him or her with the
privileges of a citizen. Naturalized citizens are former aliens or foreigners who had
to undergo a rigid procedure, in which they had to adduce sufficient evidence to
prove that they possessed all the qualifications and none of the disqualifications
provided by law in order to become Filipino citizens. Under current and existing
laws, there are three ways by which an alien may become a citizen by
naturalization: (a) administrative naturalization pursuant to R.A. No. 9139; (b)
judicial naturalization pursuant to C.A. No. 473, as amended; and (c) legislative

13
naturalization in the form of a law enacted by Congress bestowing Philippine
citizenship to an alien.44

It is a well-entrenched rule that Philippine citizenship should not easily be


given away. All those seeking to acquire it must prove, to the satisfaction of the
Court, that they have complied with all the requirements of the law. The reason for
this requirement is simple. Citizenship involves political status; hence, every person
must be proud of his citizenship and should cherish it. Naturalization is not a right,
but one of privilege of the most discriminating, as well as delicate and exacting
nature, affecting, as it does, public interest of the highest order, and which may be
enjoyed only under the precise conditions prescribed by law therefor. 45

On the specific legal status of an alien woman married to a citizen of the


Philippines, under existing laws, an alien may acquire Philippine citizenship through
either judicial naturalization under CA 473 or administrative naturalization under
Republic Act No. 9139 (the "Administrative Naturalization Law of 2000"). A third
option, called derivative naturalization, which is available to alien women married to
Filipino husbands is found under Section 15 of Commonwealth Act 473 (Revised
Naturalization Law), which provides that:

"Any woman who is now or may hereafter be married to a citizen of the


Philippines and who might herself be lawfully naturalized shall be deemed a citizen
of the Philippines." (Italics supplied.)

Under this provision, foreign women who are married to Philippine citizens
may be deemed ipso facto Philippine citizens and it is neither necessary for them to
prove that they possess other qualifications for naturalization at the time of their
marriage nor do they have to submit themselves to judicial naturalization. Hence,
an alien woman marrying a Filipino, native born or naturalized, becomes ipso facto a
Filipina provided she is not disqualified to be a citizen of the Philippines under
Section 4 of the same law. Likewise, an alien woman married to an alien who is
subsequently naturalized here follows the Philippine citizenship of her husband the
moment he takes his oath as Filipino citizen, provided that she does not suffer from
any of the disqualifications under said Section 4.

14
Regarding the steps that should be taken by an alien woman married to a
Filipino citizen in order to acquire Philippine citizenship, the procedure followed in
the Bureau of Immigration is as follows: The alien woman must file a petition for the
cancellation of her alien certificate of registration alleging, among other things, that
she is married to a Filipino citizen and that she is not disqualified from acquiring her
husbands citizenship pursuant to Section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which should be accompanied or
supported by the joint affidavit of the petitioner and her Filipino husband to the
effect that the petitioner does not belong to any of the groups disqualified by the
cited section from becoming naturalized Filipino citizen, the Bureau of Immigration
conducts an investigation and thereafter promulgates its order or decision granting
or denying the petition.46

Philippine citizenship may be lost in the manner provided by law. Under


Commonwealth Act No. 63, a Filipino citizen may lose his citizenship: (1) By
naturalization in a foreign country; (2) By express renunciation of citizenship; (3) By
subscribing to an oath of allegiance to support the constitution or laws of a foreign
country upon attaining twenty-one years of age or more; (4) By accepting
commission in the military, naval or air service of a foreign country; (5) By
cancellation of the certificate of naturalization; (6) By having been declared by
competent authority, a deserter of the Philippine armed forces in time of war, unless
subsequently, a plenary pardon or amnesty has been granted: and (7) In case of a
woman, upon her marriage, to a foreigner if, by virtue of the laws in force in her
husbands country, she acquires his nationality. 47

However, Filipino citizens who have lost their citizenship may reacquire the
same in the manner provided by law. Commonwealth Act No. 63 enumerates the
three modes by which Philippine citizenship may be reacquired by a former citizen:
(1) by naturalization, (2) by repatriation, and (3) by direct act of Congress.

Naturalization is mode for both acquisition and reacquisition of Philippine


citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is
governed by Commonwealth Act No. 473, as amended. On the other hand,
naturalization as a mode for reacquiring Philippine citizenship is governed by
Commonwealth Act No. 63. Under this law, a former Filipino citizen who wishes to
reacquire Philippine citizenship must possess certain qualifications and none of the
disqualification mentioned in Section 4 of C.A. 473.

15
Citizenship is a priceless possession. Former U.S. Chief Justice Earl Warren
fittingly emphasized its crowning value when he wrote that "it is mans basic right
for it is nothing less than to have rights." When a person loses citizenship,
therefore, the State sees to it that its reacquisition may only be granted if the
former citizen fully satisfies all conditions and complies with the applicable law.
Without doubt, repatriation is not to be granted simply based on the vagaries of the
former Filipino citizen.48

Repatriation, on the other hand, may be had under various statutes by those
who lost their citizenship. 49 Repatriation is simply the recovery
of original citizenship. It is not a grant of a new citizenship, but a recovery of one's
former or original citizenship. As distinguished from the lengthy process of
naturalization, repatriation simply consists of the taking of an oath of allegiance to
the Republic of the Philippine and registering said oath in the Local Civil Registry of
the place where the person concerned resides or last resided.

Moreover, repatriation results in the recovery of the original nationality. This


means that a naturalized Filipino who lost his citizenship will be restored to his prior
status as a naturalized Filipino citizen. On the other hand, if he was originally a
natural-born citizen before he lost his Philippine citizenship, he will be restored to
his former status as a natural-born Filipino.50

Other related laws governing the repatriation or re-acquisition of Philippine


citizenship are Republic Act No. 8171 which provides for repatriation of Filipino
women who have lost their Philippine citizenship by reason of marriage to aliens,
and of natural-born Filipinos who have lost their Philippine citizenship on account of
political or economic necessity, and Republic Act. No. 9225, otherwise known as the
"Citizenship Retention and Re-acquisition Act of 2003," on account of their being
naturalized as citizen of a foreign country.

As regards the controversy involving dual allegiance, Section 5, Article IV of


the 1987 Philippine Constitution declares in no uncertain terms that "dual allegiance
of citizens is inimical to the national interest and shall be dealt with by law." Section
5, Article IV of the 1987 Philippine Constitution is a declaration of a policy and it is
not a self-executing provision. The legislature still has to enact the law on dual
allegiance.51 And while it is true that even before the 1987 Constitution, Our country

16
had already frowned upon the concept of dual citizenship or allegiance, the fact is it
actually existed. Be it noted further that under the aforecited proviso, the effect of
such dual citizenship or allegiance shall be dealt with by a future law. Said law has
not yet been enacted.52

It has to be clarified that dual citizenship is not synonymous with dual


allegiance. Dual citizenship is the result of the application of the different laws of
two states, whereby a person is simultaneously considered a national by the said
states. For instance, such a situation may arise when a person whose parents are
citizens of a state which adheres to the principle of jus sanguinis is born in a state
which follows the doctrine of jus soli. Such a person, ipso facto and without any
voluntary act on his part, is concurrently considered a citizen of both states. Dual
allegiance, on the other hand, arises when a person simultaneously owes her loyalty
to two or more states by undertaking a positive act. While dual citizenship is
involuntary, dual allegiance is the result of an individuals volition.

The policy of our laws has been, and with laudable reason, to discourage dual
citizenship, because this condition or status assumes as a necessary complement
thereof dual allegiance at the same time to two (2) different countries. Citizenship,
the main integrate element of which is allegiance, must not be taken lightly. Dual
allegiance must be discouraged and prevented. Dual nationality is universally
recognized as an undesirable phenomenon. It inevitably results in questionable
loyalties and leads to international conflicts. Dual nationality also makes possible
the use of citizenship as a badge of convenience rather than of undivided loyalty.
And it impairs the singleness of commitment which is the hallmark of citizenship
and allegiance. A person should have a right to choose his own nationality, and this
choice should be honored by all countries. However, he should not be entitled to
claim more than one nationality.53

Finally, the relevance of "citizenship" or "nationality" to Civil Law is best


exemplified in Article 15 of the Civil Code, stating that

"Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad"

17
that explains the need to incorporate in the code a reiteration of the
Constitutional provisions on citizenship. Similarly, citizenship is significant in civil
relationships found in different parts of the Civil Code, such as on successional
rights and family relations. In adoption, for instance, an adopted child would be
considered the child of his adoptive parents and accorded the same rights as their
legitimate child but such legal fiction extended only to define his rights under civil
law and not his political status.54

IIIC. State Immunity from Suit

The State is immuned from suit. Section 3, Article XVI of the 1987 Philippine
Constitution provides:

Section 3. The State may not be sued without its consent.

A similar provision is found in Section 2, Chapter 3, Book I of the


Administrative Code of 1987.

In a republican state, like Philippines, government immunity from suit without


its consent is derived from the will of the people themselves in freely creating a
government "of the people, and for the people"a representative government
through which they have agreed to exercise the powers and discharge the duties of
their sovereignty for the common good and general welfare. In so agreeing, the
citizens have solemnly undertaken to surrender some of their private rights and
interest which were calculated to conflict with the higher rights and larger interests
of the people as a whole, represented by the government thus established by them
all. One of those "higher rights," based upon those "larger interests" is that
government immunity. Where the government is "of the people, by the people, and
for the people," such immunity from suit will only be the reaffirmation of the
sovereignty of the people themselves as represented by their government in the
face of the obvious impossibility of constituting the entire people into one single
body to exercise the powers and enjoy the immunities of that sovereignty. 55

The immunity of the State from suit, known also as the doctrine of sovereign
immunity or non-suability of the State, is expressly provided in Article XVI of the
1987 Constitution which states:

Section 3. The State may not be sued without its consent.

The principle of state immunity from suit is one of the generally accepted
principles of international law that we have adopted as part of the law of our land
under Article II, Section 2. Even without such affirmation, we would still be bound by
the generally accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of states, such
principles are deemed incorporated in the law of every civilized state as a condition
and consequence of its membership in the society of nations. Upon its admission to

18
such society, the state is automatically obligated to comply with these principles in
its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that ''there can be no legal right against the
authority which makes the law on which the right depends." There are other
practical reasons for the enforcement of the doctrine. In the case of the foreign
state sought to be impleaded in the local jurisdiction, the added inhibition is
expressed in the maxim par in parem, non habet imperium. All states are sovereign
equals and cannot assert jurisdiction over one another. A contrary disposition would,
in the language of a celebrated case, "unduly vex the peace of nations."

While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their duties. The rule is that if the
judgment against such officials will require the state itself to perform an affirmative
act to satisfy the same, such as the appropriation of the amount needed to pay the
damages awarded against them, the suit must be regarded as against the state
itself although it has not been formally impleaded. In such a situation, the state may
move to dismiss the complaint on the ground that it has been filed without its
consent.56

The basic postulate enshrined in the constitution that "[t]he State may not be
sued without its consent," reflects nothing less than a recognition of the sovereign
character of the State and an express affirmation of the unwritten rule effectively
insulating it from the jurisdiction of courts. It is based on the very essence of
sovereignty. As has been aptly observed, by Justice Holmes, a sovereign is exempt
from suit, not because of any formal conception or obsolete theory, but on the
logical and practical ground that there can be no legal right as against the authority
that makes the law on which the right depends.

True, the doctrine, not too infrequently, is derisively called "the royal
prerogative of dishonesty" because it grants the state the prerogative to defeat any
legitimate claim against it by simply invoking its non-suability. We have had
occasion, to explain in its defense, however, that a continued adherence to the
doctrine of non-suability cannot be deplored, for the loss of governmental efficiency
and the obstacle to the performance of its multifarious functions would be far
greater in severity than the inconvenience that may be caused private parties, if
such fundamental principle is to be abandoned and the availability of judicial
remedy is not to be accordingly restricted.57

The rule, in any case, is not really absolute for it does not say that the state
may not be sued under any circumstances. On the contrary, as correctly phrased,
the doctrine only conveys, "the state may not be sued without its consent;" its clear
import then is that the State may at times be sued. The States' consent may be
given expressly or impliedly. Express consent may be made through a general law or
a special law.

In this jurisdiction, the general law waiving the immunity of the state from
suit is found in Act No. 3083, where the Philippine government "consents and
submits to be sued upon any money claims involving liability arising from contract,

19
express or implied, which could serve as a basis of civil action between private
parties." Implied consent, on the other hand, is conceded when the State itself
commences litigation, thus opening itself to a counterclaim or when it enters into a
contract. In this situation, the government is deemed to have descended to the
level of the other contracting party and to have divested itself of its sovereign
immunity. However, not all contracts entered into by the government operate as a
waiver of its non-suability; distinction must still be made between one which is
executed in the exercise of its sovereign function and another which is done in its
proprietary capacity.58

The traditional rule of immunity exempts a State from being sued in the
courts of another State without its consent or waiver. This rule is a necessary
consequence of the principles of independence and equality of States. However, the
rules of International Law are not petrified; they are constantly developing and
evolving. And because the activities of states have multiplied, it has been necessary
to distinguish them between sovereign and governmental acts ( jure imperii) and
private, commercial and proprietary act ( jure gestionisis). The result is that State
immunity now extends only to acts jure imperii. The restrictive application of State
immunity is now the rule in the United States, the United Kingdom and other states
in Western Europe.

The restrictive application of State immunity is proper only when the


proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs. Stated differently, a state may be said to
have descended to the level of an individual and can this be deemed to have
actually given its consent to be sued only when it enters into business contracts. It
does not apply where the contracts relates to the exercise of its sovereign functions.
In this case the projects are an integral part of the naval base which is devoted to
the defense of both the United States and the Philippines, indisputably a function of
the government of the highest order; they are not utilized for not dedicated to
commercial or business purposes.59

A distinction should be made between suability and liability. "Suability


depends on the consent of the state to be sued, liability on the applicable law and
the established facts. The circumstance that a state is suable does not necessarily
mean that it is liable; on the other hand, it can never be held liable if it does not first
consent to be sued. Liability is not conceded by the mere fact that the state has
allowed itself to be sued. When the state does waive its sovereign immunity, it is
only giving the plaintiff the chance to prove, if it can, that the defendant is liable. 60
When the state gives its consent to be sued, it does thereby necessarily consent to
unrestrained execution against it. Tersely put, when the State waives its immunity,
all it does, in effect, is to give the other party an opportunity to prove, if it can, that
the State has a liability.61

The universal rule that where the State gives its consent to be sued by
private parties either by general law or special law, it may limit claimant's action
"only up to the completion of proceedings anterior to the stage of execution" and
that the power of the Courts ends when the judgment is rendered, since
government funds and properties may not be seized under writs of execution or
garnishment to satisfy such judgments, is based on obvious considerations of public

20
policy. Disbursements of public funds must be covered by the correspondent
appropriation as required by law. The functions and public services rendered by the
State cannot be allowed to be paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects, as appropriated by law. 62

Anent the issue of whether or not the municipality is liable for the torts
committed by its employee, the test of liability of the municipality depends on
whether or not it is performing governmental or proprietary functions. The
distinction of powers becomes important for purposes of determining the liability of
the municipality for the acts of its agents which result in an injury to third persons.

Municipal corporations, for example, like provinces and cities, are agencies of
the State when they are engaged in governmental functions and therefore should
enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even
in the performance of such functions because their charter provided that they can
sue and be sued. Municipal corporations are suable because their charters grant
them the competence to sue and be sued. Nevertheless, they are generally not
liable for torts committed by them in the discharge of governmental functions and
can be held answerable only if it can be shown that they were acting in a
proprietary capacity. In permitting such entities to be sued, the State merely gives
the claimant the right to show that the defendant was not acting in its
governmental capacity when the injury was committed or that the case comes
under the exceptions recognized by law. Failing this, the claimant cannot recover. 63

The practical advantages and benefits of the doctrine of non-suability of a


state cannot be over-estimated. Public service would be rendered nugatory and
public safety endangered, if the supreme authority could be subjected to suit at the
instance of every citizen, and consequently, controlled in the use and disposition of
the means required for the proper administration of the Government. The broader
reason is that it would be inconsistent with the very idea of supreme executive
power and would endanger the performance of the public duties of the sovereign, to
subject him to repeated suits as a matter of right, at the will of any citizen, and to
submit to the judicial tribunals the control and disposition of his property, his
instruments and means of carrying on his government in war and peace, and the
money of his treasury.64

IIID. National Symbols and Official Languages

THE PHILIPPINE FLAG

Section 1, Article XVI on General Provisions of the 1987 Philippine


Constitution provides:

21
Section 1. The flag of the Philippines shall be red, white, and blue, with a sun
and three stars, as consecrated and honored by the people and recognized by law.

Republic Act No. 8491, otherwise known as Flag and Heraldic Code of the
Philippines, is the effective law that prescribes the occasion and ceremonial use,
hoisting and display of the national flag, and the conduct of flag raising ceremony.
The said law copied in toto the provision in Section 1, Article XVI of the 1987
Philippine Constitution because the design of the national flag may be changed only
by constitutional amendment.

The Philippine flag stands for unity and national identity, and expresses the
Filipinos aspiration for freedom, equality, justice and nobility. It s is the only flag in
the world able to signify peace or war. In time of peace, the blue stripe is on top of
the red. In time of war, the red stripe is on top of the blue. The red stripe symbolizes
courage and patriotism, and the willingness of every Filipino to shed blood in
defense of our country, while the blue stripe stands for peace and unity among all
Filipinos, and the willingness to sacrifice oneself for freedom, peace, truth and
justice.

The white equilateral triangle on the left side symbolizes liberty, fraternity
and equality of men. The Golden sun with eighth rays symbolizes unity, freedom,
peoples democracy and sovereignty. The eight rays of the Philippine Sun in the
triangle represent the eight provinces that first revolted against the Spanish rule
Manila, Cavite, Bulacan, Pampanga, Nueva Ecija, Tarlac, Laguna and Batangas. The
three five-pointed stars on each corner of the triangle stand for the three major
groups of islands where the revolution started: Luzon, Visayas and Mindanao.

As of April 5, 2017, the House of Representatives has approved on second


reading House Bill 5224 seeking to strengthen the rules on the proper use and
display of the countrys national symbols, including the Philippine flag, and the
rendition of the national anthem. The bill seeks to repeal Republic Act 8491 in light
of contemporary changes in attitudes and idioms. It also aims to instill love of
country and underscore the importance of complying with standard expressions of
respect for the countrys national symbols.

THE NATIONAL ANTHEM

The National Anthem of the Philippines is entitled Lupang Hinirang.65


Section 2, Article XVI of the 1987 Philippine Constitution provides:

Section 2. The Congress may, by law, adopt a new name for the country, a
national anthem, or a national seal, which shall all be truly reflective and symbolic

22
of the ideals, history, and traditions of the people. Such law shall take effect only
upon its ratification by the people in a national referendum.

Section 36 of Republic Act No. 8491, otherwise known as the Flag and
Heraldic Code of the Philippines, provides that [t]he National Anthem shall always
be sung in the national language within or without the country. The following shall
be the lyrics of the National Anthem:

Bayang magiliw,
Perlas ng Silanganan
Alab ng puso,
Sa Dibdib mo'y buhay.
Lupang Hinirang,
Duyan ka ng magiting,
Sa manlulupig,
Di ka pasisiil.
Sa dagat at bundok,
Sa simoy at sa langit mong bughaw,
May dilag ang tula,
At awit sa paglayang minamahal.
Ang kislap ng watawat mo'y
Tagumpay na nagniningning,
Ang bituin at araw niya,
Kailan pa ma'y di magdidilim,
Lupa ng araw ng luwalhati't pagsinta,
Buhay ay langit sa piling mo,
Aming ligaya na pag may mang-aapi,
Ang mamatay ng dahil sa iyo.

The rendition of the National Anthem, whether played or sung, shall be in


accordance with the musical arrangement and composition of Julian Felipe. 66 When
the National Anthem is played at a public gathering, whether by a band or by
singing or both, or reproduced by any means, the attending public shall sing the
anthem. The singing must be done with fervor.

23
As a sign of respect, all persons shall stand at attention and face the
Philippine flag, if there is one displayed, and if there is none, they shall face the
band or the conductor. At the first note, all persons shall execute a salute by placing
their right palms over their left chests. Those in military, scouting, citizens military
training and security guard uniforms shall give the salute prescribed by their
regulations. The salute shall be completed upon the last note of the anthem.

The anthem shall not be played and sung for mere recreation, amusement or
entertainment purposes except on the following occasions: (a) International
competitions where the Philippines is the host or has a representative; (b) Local
competitions; (c) During the "signing off" and "signing on" of radio broadcasting and
television stations; (d) Before the initial and last screening of films and before the
opening of theater performances; and (e) Other occasions as may be allowed by the
National Historic Institute.67 All officials and employees of the national and local
government, and any agency or instrumentality thereof, including government-
owned or controlled corporations, privately-owned entities or offices displaying the
national flag and government institutions of learning are hereby directed to comply
strictly with the rules prescribed for the rendition of the anthem. Failure to observe
the rules shall be a ground for administrative discipline. 68

The 1987 Philippine Constitution has given the Congress the authority to
change the name of the country, its national anthem and seal, but the change does
not take effect until ratified by the people in a national referendum. 69

THE NATIONAL COAT OF ARMS OF THE REPUBLIC OF THE PHILIPPINES

24
The national coat of arms of the Republic of the Philippines was approved by
Commonwealth Act No. 731 on July 3, 1946. It was designed by then Captain Galo B.
Ocampo, Secretary of the Philippine Heraldry Committee. This was subsequently
revised in February 12, 1998, under Republic Act No. 8491, otherwise known as
Flag and Heraldic Code of the Philippines. 70 The National Coat-of-Arms shall have
paleways of two (2) pieces, azure and gules; a chief argent studded with three (3)
mullets equidistant from each other; and, in point of honor, ovoid argent over all
the sun rayonnant with eight minor and lesser rays. Beneath shall be the scroll with
the words "REPUBLIKA NG PILIPINAS," inscribed thereon.71

THE GREAT SEAL

25
The Great Seal shall be circular in form, with the arms as described in the
preceding Sec., but without the scroll and the inscription thereon. Surrounding the
whole shall be a double marginal circle within which shall appear the
words "Republika ng Pilipinas." For the purpose of placing The Great Seal, the color
of the arms shall not be deemed essential but tincture representation must be used.

The Great Seal shall also bear the National Motto. 72 The National Motto
shall be "MAKA-DIYOS, MAKA-TAO, MAKAKALIKASAN AT MAKABANSA."73

The Great Seal shall be affixed to or placed upon all commissions signed by
the President and upon such other official documents and papers of the Republic of
the Philippines as may be provided by law, or as may be required by custom and
usage. The President shall have custody of the Great Seal. 74

Any person who forges the Great Seal shall be subject to prosecution under
Art. 161 of the Revised Penal Code which provides as follows:

Art. 161. Counterfeiting the great seal of the Government of the Philippine
Islands, forging the signature or stamp of the Chief Executive. The penalty
of reclusion temporal shall be imposed upon any person who shall forge the Great
Seal of the Government of the Philippine Islands or the signature or stamp of the
Chief Executive.

THE NATIONAL LANGUAGE

The current working definition of the Philippines national language is found in


Sections 6 and 7 of Article XIV of the 1987 Constitution, which was created following
the ouster of Marcos, thus:

26
Section 6. The national language of the Philippines is Filipino. As it evolves, it
shall be further developed and enriched on the basis of existing Philippine and other
languages. x x x (Italics supplied.)

Section 7. For purposes of communication and instruction, the official


languages of the Philippines are Filipino and, until otherwise provided by law,
English. (Italics supplied.)

Section 17, Chapter 4, Book I of the Administrative Code contains a similar


provision on official languages, vis.:

Section 17. Official Languages. - Until otherwise provided by law, Filipino and
English shall be the official languages. (Italics supplied.)

The 1987 Constitutions definition of the national language takes the notion
of Filipino from the 1973 Constitution even further by explicitly recognizing that
the national language is subject to change through influence from local and foreign
languages over time.

The definition also gives due consideration to the role of the other Philippine
languages in shaping the national language. It also replaced Pilipino with Filipino
as an official language.75 The 1973 Philippine Constitution, through Article XV,
Section 3, made a distinction between Pilipino, which together with English was
made an official language, and Filipino, which was envisioned as the common
national language.

Pilipino is the puristic form of Tagalog or the Abakada Tagalog evolved by


the Institute of National Language. It is an existing language and is actually in use.
Together with English, it was, under the 1973 Philippine Constitution, an official
language.

27
Official language means the prescribed medium of communication for all
official acts of or transactions with the various departments and agencies of the
government. Moreover, By Presidential Decree No. 155, Spanish continued to be
recognized as an official language in the Philippines while important documents in
government files are in the Spanish language and not translated into either English
or Pilipino language.

Filipino was seen as a language yet to be developed. Consisting of a fusion


of the various existing Philippine languages, it was envisioned as the common
national language. It was hoped that it would by symbolic of the Filipino nation and
expressive of the Filipino soul. It was also expected to become the official medium
of communication.

However, Section 7 categorically makes Filipino the official language for


purposes of communication and instruction while tolerating English also as official
language until otherwise provided by law. 76

Republic Act No. 7104, otherwise known as the Commission on the Filipino
Language Act, created the Commission on the Filipino Language (Tagalog:
Komisyon sa Wikang Filipino) under the declared policy of the State, pursuant to the
mandate of the Constitution, to ensure and promote the evolution, development
and further enrichment of Filipino as the national language of the Philippines, on the
basis of existing Philippine and other languages.

In the Philippines, the month of August is designated as Buwan ng Wika,


which is celebrated to promote the national language. Buwan ng Wika was
previously called Linggo ng Wika (the week of the Philippine language). It is a
month-long celebration that was extended from the weeks observance of Linggo ng
Wika.77 The Commission of the Filipino Language (Komisyon ng Wikang Filipino ) in
conjunction with the Department of Education (DepEd) are the organizers of this
month-long celebration.

With such emphasis on the themes of the months celebration of language,


the English influence among Filipinos is gradually declining. This national

28
celebration in the Philippines is pursuant to the Presidential Decree Number 1041
(1997). There are many accounts of the importance and significance of Buwan ng
Wika, but including the remembrance of the countrys struggle for freedom and the
influence of its culture, helps to intensify the pride of the people of the Philippines. 78

IIIE. General Principles Governing Public Officers


A public office is a public trust. Section 1, Article XI of the 1987 Philippine
Constitution expressly provides:

Section 1. Public office is a public trust. Public officers and employees must,
at all times, be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest
lives.

To promote transparency in the civil service, public officers or employees are


required to prepare and submit their SALN. Section 17, Article XI of the 1987
Philippine Constitution states:

Section 17. A public officer or employee shall, upon assumption of office and
as often thereafter as may be required by law, submit a declaration under oath of
his assets, liabilities, and net worth. In the case of the President, the Vice-President,
the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional
Commissions and other constitutional offices, and officers of the armed forces with
general or flag rank, the declaration shall be disclosed to the public in the manner
provided by law.

Further, holding public office demands full and undivided allegiance and in
order to secure allegiance and loyalty from public officers or employees, Section 18,
Article XI of the Philippine Constitution provides:

Section 18. Public officers and employees owe the State and this Constitution
allegiance at all times and any public officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of another country during his
tenure shall be dealt with by law.

The abovementioned mandates are also found in Chapter 9 on General


Principles Governing Public Officers, Book I of the Administrative Code of 1987, and
also, in the Code of Conduct and Ethical Standards for Public Officials and
Employees.

"All government is a trust, every branch of government is a trust, and


immemorially acknowledged so to be."79 It is a recognized principle in public law
hopefully to be honored more in its compliance rather than in its breachthat a
"public office is a public trust." 80

One of the great themes of the 1987 Constitution is that a public office is a
public trust. It declared as a state policy that "the State shall maintain honesty and

29
integrity in the public service and take positive and effective measures against graft
and corruption." It ordained that "public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency act with patriotism and justice, and lead modest lives." 81

With the advent of the 1973 Constitution, the approach in dealing with public
officers underwent a significant change. The new charter introduced an entire
article on accountability of public officers, found in Article XIII, Section 1 thereof
positively recognized, acknowledged, and declared that public office is a public
trust. Accordingly, public officers and employees shall serve with the highest
degree of responsibility, integrity, loyalty and efficiency, and shall remain
accountable to the people.

After the turbulent decades of Martial Law rule, the Filipino People have
framed and adopted the 1987 Constitution, which sets forth in the Declaration of
Principles and State Policies in Article II that the State shall maintain honesty and
integrity in the public service and take positive and effective measures against graft
and corruption. Learning how unbridled power could corrupt public servants under
the regime of a dictator, the Framers put primacy on the integrity of the public
service by declaring it as a constitutional principle and a State policy. More
significantly, the 1987 Constitution strengthened and solidified what has been first
proclaimed in the 1973 Constitution by commanding public officers to be
accountable to the people at all times.

It was explained that the aphorism forged under Section 1, Article XI of the
1987 Constitution, which states that public office is a public trust, is an
overarching reminder that every instrumentality of government should exercise
their official functions only in accordance with the principles of the Constitution
which embodies the parameters of the peoples trust. 82

Public office is a public trust. All government officials and employees must at
all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency act with patriotism and justice, and lead modest
lives. This constitutional mandate should always be in the minds of all public
servants to guide them in their actions during their entire tenure in the government
service.83 To deter public officials and employees from committing acts of
dishonesty and improve the tone of morality in public service, it was declared to be
the state policy "in line with the principle that a public office is a public trust, to
repress certain acts of public officers and private persons alike which constitute
graft or corrupt practices or which may lead thereto." 84

Public service requires integrity and discipline. For this reason, public
servants must exhibit at all times the highest sense of honesty and dedication to
duty. By the very nature of their duties and responsibilities, government employees
must faithfully adhere to, hold sacred and render inviolate the constitutional
principle that a public office is a public trust; that all public officers and employees
must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency. 85 This yardstick has been imprinted in
the 1973 Constitution under Section 1 of Article XIII. This is reiterated more
emphatically in the 1987 Constitution.86

30
Public service requires the utmost integrity and strictest discipline. Thus, a
public servant must exhibit at all times the highest sense of honesty and integrity
not only in the performance of his official duties but in his personal and private
dealings with other people. No less than the Constitution sanctifies the principle
that a public office is a public trust, and enjoins all public officers and employees to
serve with the highest degree of responsibility, integrity, loyalty, and efficiency. In
addition, the Code of Conduct and Ethical Standards for Public Officials and
Employees provide that every servant shall at all times uphold public interest over
his or her personal interest.87
The Constitution stresses that a public office is a public trust and public
officers must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and
lead modest lives. These constitutionally-enshrined principles, oft-repeated in our
case law, are not mere rhetorical flourishes or idealistic sentiments. They should be
taken as working standards by all in the public service. 88

Public office is a public trust and public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice and lead modest
lives. This high constitutional standard of conduct is not intended to be mere
rhetoric; those in the public service are enjoined to fully comply with this standard
or run the risk of facing administrative sanctions ranging from reprimand to the
extreme penalty of dismissal from the service.89

Public office is not a property right. As the Constitution expressly states, a


"[p]ublic office is a public trust." No one has a vested right to any public office,
much less a vested right to an expectancy of holding a public office. A public office
is not property within the sense of the constitutional guaranties of due process of
law, but is a public trust or agency. The basic idea of the government is that of a
popular representative government, the officers being mere agents and not rulers of
the people, one where no one man or set of men has a proprietary or contractual
right to an office, but where every officer accepts office pursuant to the provisions
of the law and holds the office as a trust for the people he represents. Thus, the
constitutional principle of a public office as a public trust precludes any proprietary
claim to public office,90 and that there is no vested right in public office, nor an
absolute right to hold office. No proprietary title attaches to a public office, as public
service is not a property right. 91

As regards the filing of SALN, Section 17, Article XI of the 1987 Philippine
Constitution requires the mandatory filing of SALN. The requirement of filing a SALN
is enshrined, as it were, in the Constitution to promote transparency in the civil
service and operates as a deterrent against government officials bent on enriching
themselves through unlawful means. By mandate of law, it behooves every
government official or employee to make a complete disclosure of his or her assets,
liabilities and net worth in order to suppress any questionable accumulation of
wealth because the latter usually results from non-disclosure of such matters.

The significance of requiring the filing of a complete, truthful, and sworn


SALN as a measure to curb corruption in the bureaucracy cannot be gainsaid. Secs.

31
7 and 8 of the Anti-Graft and Corrupt Practices Act (RA 3019) are emphatic on this
point:

Sec. 7. Statement of Assets and Liabilities. Every public officer, within


thirty days after assuming office, and thereafter, on or before the fifteenth day of
April following the close of every calendar year, x x x shall prepare and file x x x a
true, detailed and sworn statement of the amounts and sources of his income, the
amounts of his personal and family expenses and the amount of income taxes paid
for the next preceding calendar year x x x.

Sec. 8. Prima Facie Evidence of and Dismissal Due to Unexplained Wealth.


If in accordance with the provisions of [RA 1379], a public official has been found to
have acquired during his incumbency, whether in his name or in the name of other
persons, an amount of property and/or money manifestly out of proportion to his
salary and to his other lawful income, that fact shall be ground for dismissal or
removal. x x x

The aforequoted Section 8 speaks of unlawful acquisition of wealth and


excessive expenditure, the evil sought to be suppressed and avoided, and Section
7, which directs full disclosure of wealth in the SALN, is a means of preventing said
evil and is aimed particularly at minimizing if not altogether curtailing the
opportunities for official corruption and maintaining a standard of honesty in the
public service. By the SALN, the public is able to monitor movement in the fortune
of a public official; it serves as a valid check and balance mechanism to verify
undisclosed properties and wealth.

The failure to file a truthful SALN puts in doubts the integrity of the officer
and would normally amount to dishonesty. It should be emphasized, however, that
mere misdeclaration in the SALN does not automatically amount to such an offense.
Dishonesty requires malicious intent to conceal the truth or to make false
statements; otherwise, the government employee may only liable for negligence,
not for dishonesty. In addition, only when the accumulated wealth becomes
manifestly disproportionate to the income of the public officer/employee and
income from other sources, and the public officer/employee fails to properly account
or explain these sources of income and acquisitions, does he or she become
susceptible to dishonesty.92

The full disclosure of SALN is but a necessary consequence of the right of the
public to demand information on matters involving public concern. Section 7, Article
III of the Constitution is relevant in the issue of public disclosure of SALN and other
documents of public officials, viz:

Sec. 7. The right of the people to information on matters of public concern


shall be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.

The cornerstone of this republican system of government is delegation of


power by the people to the State. In this system, governmental agencies and

32
institutions operate within the limits of the authority conferred by the people.
Denied access to information on the inner workings of government, the citizenry
can become prey to the whims and caprices of those to whom the power had been
delegated. The postulate of public office is a public trust, institutionalized in the
Constitution to protect the people from abuse of governmental power, would
certainly be mere empty words if access to such information of public concern is
denied.

The right to information goes hand-in-hand with the constitutional policies of


full public disclosure and honesty in the public service. It is meant to enhance the
widening role of the citizenry in governmental decision-making as well as in
checking abuse in government. 93

The incorporation of this right in the Constitution is a recognition of the


fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nations problems, nor a meaningful
democratic decision-making if they are denied access to information of general
interest. Information is needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed: "Maintaining the flow of such
information depends on protection for both its acquisition and its dissemination
since, if either process is interrupted, the flow inevitably ceases." However,
restrictions on access to certain records may be imposed by law.

Thus, while "public concern" like "public interest" eludes exact definition and
has been said to embrace a broad spectrum of subjects which the public may want
to know, either because such matters directly affect their lives, or simply because
such matters naturally arouse the interest of an ordinary citizen, the Constitution
itself, under Section 17, Article XI, has classified the information disclosed in the
SALN as a matter of public concern and interest. In other words, a "duty to disclose"
sprang from the "right to know." Both of constitutional origin, the former is a
command while the latter is a permission. Hence, the duty on the part of members
of the government to disclose their SALNs to the public in the manner provided by
law:

Section 17. A public officer or employee shall, upon assumption of office and
as often thereafter as may be required by law, submit a declaration under oath of
his assets, liabilities, and net worth. In the case of the President, the Vice-President,
the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional
Commissions and other constitutional offices, and officers of the armed forces with
general or flag rank, the declaration shall be disclosed to the public in the manner
provided by law.

This Constitutional duty is echoed and particularized in a statutory creation of


Congress: Republic Act No. 6713, also known as "Code of Conduct and Ethical
Standards for Public Officials and Employees":

Section 8. Statements and Disclosure. - Public officials and employees have


an obligation to accomplish and submit declarations under oath of, and the public
has the right to know, their assets, liabilities, net worth and financial and business

33
interests including those of their spouses and of unmarried children under eighteen
(18) years of age living in their households.

Like all constitutional guarantees, however, the right to information, with its
companion right of access to official records, is not absolute. While providing
guaranty for that right, the Constitution also provides that the peoples right to
know is limited to "matters of public concern" and is further subject to such
limitations as may be provided by law.

Jurisprudence has provided the following limitations to that right: (1) national
security matters and intelligence information; (2) trade secrets and banking
transactions; (3) criminal matters; and (4) other confidential information such as
confidential or classified information officially known to public officers and
employees by reason of their office and not made available to the public as well as
diplomatic correspondence, closed door Cabinet meetings and executive sessions of
either house of Congress, and the internal deliberations of the Supreme Court.

This could only mean that while no prohibition could stand against access to
official records, such as the SALN, the same is undoubtedly subject to regulation. 94

Now on the prohibition on dual allegiance particularly for public officers and
employees holding public office. To begin with, dual citizenship is different from dual
allegiance. The former arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously considered a
national by the said states. Dual allegiance, on the other hand, refers to the
situation in which a person simultaneously owes, by some positive act, loyalty to
two or more states. While dual citizenship is involuntary, dual allegiance is the
result of an individual's volition.95

Citizenship is not a matter of convenience. It is a badge of identity that


comes with attendant civil and political rights accorded by the state to its citizens. It
likewise demands the concomitant duty to maintain allegiance to ones flag and
country. While those who acquire dual citizenship by choice are afforded the right of
suffrage, those who seek election or appointment to public office are required to
renounce their foreign citizenship to be deserving of the public trust. Holding public
office demands full and undivided allegiance to the Republic and to no other. 96

Filipino citizenship is a continuing qualification requirement for any public


office. A voluntary change of citizenship or a change thereof by operation of law
disqualifies him to continue holding the position to which he had qualified and had
been appointed or elected.97 Qualifications for public office are continuing
requirements and must be possessed not only at the time of appointment or
election or assumption of office but during the officer's entire tenure. Once any of
the required qualifications is lost, his title may be seasonably challenged. If a person
seeks to serve in the Republic of the Philippines, he must owe his total loyalty to
this country only, abjuring and renouncing all fealty and fidelity to any other state. 98

In election laws, Philippine citizenship is an indispensable requirement for an


elective office. The fact that a person who lost his Philippine citizenship received the
highest number of votes for an elective position does not dispense with, nor amount

34
to a waiver of, such requirement, nor restore his citizenship. Philippine citizenship
can only be reacquired after compliance with the requisites of law and not by
elections.99

And to those natural-born citizens who have lost their Philippine citizenship as
a consequence of their subsequent naturalization as a citizen of a foreign country,
Republic Act No. 9225, otherwise known as "Citizenship Retention and Re-
acquisition Act of 2003," allows the retention and re-acquisition of Filipino
citizenship for natural-born citizens who have lost their Philippine citizenship by
taking an oath of allegiance to the Republic.

IIIF. Official Oaths


The Constitution requires public officials and employees. Specifically, Section
4, Article IX-B of the 1987 Philippine Constitution provides:

Sec. 4. All public officers and employees shall take an oath or affirmation to
uphold and defend this Constitution.

The Constitution likewise mandates the requirement of oath upon members


of the armed forces. Explicitly, Section 5(1), Article XVI of the 1987 Philippine
Constitution provides:

Section 5 (1). All members of the armed forces shall take an oath or
affirmation to uphold and defend this Constitution.

Section 40, Chapter 10, Book I of the Administrative Code of 1987 (Executive
Order No. 292) reinforces this constitutional provisions.

Section 8, Republic Act No. 9406 had further amended Sections 41 and 42,
Chapter 10, Book I of the Administrative Code of 1987, viz.:

SEC. 8. Sections 41 and 42, Chapter 10, Book I of the same Code, as
amended, is hereby further amended to read as follows:

"SEC. 41. Officers Authorized to Administer Oaths. - The following officers


have general authority to administer oaths: President; Vice-President, Members and
Secretaries of both Houses of the Congress; Members of the Judiciary; Secretaries of
Departments; provincial governors and lieutenant-governors; city mayors;
municipal mayors; bureau directors; regional directors; clerk of courts; registrars of
deeds; other civilian officers in the public service of the government of the
Philippines whose appointments are vested in the President and are subject to
confirmation by the Commission on Appointments; all other constitutional officers;
PAO lawyers in connection with the performance of duty; and notaries public.

"SEC. 42. Duty to Administer Oaths. - Officers authorized to administer oaths,


with the exception of notaries public, municipal judges and clerks of court, are not
obliged to administer oaths or execute certificates save in matters of official
business or in relation to their functions as such; and with the exception of notaries

35
public, the officer performing the service in those matters shall charge no fee,
unless specifically authorized by law."

As defined in the 2004 Rules on Notarial Practice, an affirmation or oath


refers to an act in which an individual on a single occasion: (a) appears in person
before the notary public; (b) is personally known to the notary public or identified by
the notary public through competent evidence of identity as defined by these Rules;
and (c) avows under penalty of law to the whole truth of the contents of the
instrument or document.100

An oath is a solemn declaration, accompanied by a swearing to God or a


revered person or thing, that ones statement is true or that one will be bound to a
promise. The person making the oath implicitly invites punishment if the statement
is untrue or the promise is broken. The legal effect of an oath is to subject the
person to penalties for perjury if the testimony is false.

Indeed, the solemn promise, and the risk of punishment attached to an oath
ensures truthfulness to the prospective public officers abandonment of his adopted
state and promise of absolute allegiance and loyalty to the Republic of the
Philippines.

To hold the oath to be a mere pro forma requirement is to say that it is only
for ceremonial purposes; it would also accommodate a mere qualified or temporary
allegiance from government officers when the Constitution and the legislature
clearly demand otherwise.101

A public officers or employees relationship with the public should be


characterized by the highest standards of public service in keeping with the
constitutional dictum that public office is a public trust. This is the essence of the
oath sworn or affirmed by the public officer or employee. The oath is not mere facile
words, drift and hollow, but a sacred trust that must be upheld and keep inviolable.

A public officer or employee is an oath-bound servant of the public whose


conduct is clearly circumscribed by inflexible norms of law and ethics, and whose
primary duty is to serve the public with utmost responsibility, integrity, loyalty, and
efficiency. The oath that a public officer or employee swears to likewise impresses
upon them the duty of exhibiting the highest degree of good faith, fairness and
candor in their relationships with others. Thus, the oath is a sacred trust that must
be upheld and kept inviolable at all times.

All public officers and employees from the highest to the lowest are required
to take an oath of office which marks their assumption to duty. One who does not
take an oath of office which demands the highest standard and responsibilities of
public service is understandably not entitled to enjoy the benefits and privileges of
a public officer or employee. It is well-settled that an oath of office is a qualifying
requirement for public office, a prerequisite to the full investiture of the office.

36
To be sure, it is long settled that not all services rendered to the government
partake of the nature of "government service," consultants are not required to take
an oath of office because they are not rendering "government service" in the sense
the term is understood for purposes of applying the laws and regulations applicable
to public officers and employees, among which are the retirement laws, the Anti-
Graft and Corrupt Practices Act (Republic Act No. 3019 as amended), and the Code
of Conduct and Ethical Standards for Public Officials and Employees (Republic Act
No. 6713).102

IV. DISTRIBUTION OF POWERS OF GOVERNMENT

PRINCIPLE OF SEPARATION OF POWERS

The principle of separation of powers refers to the constitutional demarcation


of the three fundamental powers of government. To the legislative branch of
government, through Congress, belongs the power to make laws; to the executive
branch of government, through the President, belongs the power to enforce laws;
and to the judicial branch of government, through the Court, belongs the power to
interpret laws. Because the three great powers have been, by constitutional design,
ordained in this respect, each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own
sphere. Thus, the legislature has no authority to execute or construe the law, the
executive has no authority to make or construe the law, and the judiciary has no
power to make or execute the law. 103

The concept of the independence of the three branches of government


extends from the notion that the powers of government must be divided to avoid
concentration of these powers in any one branch; the division, it is hoped, would
avoid any single branch from lording its power over the other branches or the
citizenry. To achieve this purpose, the divided power must be wielded by co-equal
branches of government that are equally capable of independent action in
exercising their respective mandates; lack of independence would result in the
inability of one branch of government to check the arbitrary or self-interest
assertions of another or others.104

The 1987 Constitution has fully restored the separation of powers of the three
great branches of government. To recall the words of Justice Laurel, "the
Constitution has blocked but with deft strokes and in bold lines, allotment of power
to the executive, the legislative and the judicial departments of the government."
Thus, the 1987 Constitution explicitly provides that [t]he legislative power shall be
vested in the Congress of the Philippines, [t]he executive power shall be vested in

37
the President of the Philippines, and [t]he judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law.

These provisions not only establish a separation of powers by actual division


but also confer plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. It has been pointed out that "a grant of the
legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the
government." If this can be said of the legislative power which is exercised by two
chambers with a combined membership of more than two hundred members and of
the judicial power which is vested in a hierarchy of courts, it can equally be said of
the executive power which is vested in one official the President. 105

Our republican system of Government is composed of three independent and


co-equal branches, the Executive, Legislative, and Judiciary. One of the fundamental
tenets underlying our constitutional system is the principle of separation of powers,
pursuant to which the powers of government are mainly divided into three classes,
each of which is assigned to a given branch of the service. 106 The principle of
separation of powers has in the main wisely allocated the respective authority of
each department and confined its jurisdiction to such sphere. 107 The principle of
separation of powers essentially means that legislation belongs to Congress,
execution to the Executive, and settlement of legal controversies to the Judiciary.
Each is prevented from invading the domain of the others. 108
The separation of powers is a fundamental principle in our system of
government. This principle is one of the cornerstones of our constitutional
democracy and it cannot be eroded without endangering our government. The 1987
Constitution divides governmental power into three co-equal branches: the
executive, the legislative and the judicial. It delineates the powers of the three
branches: the legislature is generally limited to the enactment of laws, the
executive department to the enforcement of laws and the judiciary to their
interpretation and application to cases and controversies. Each branch is
independent and supreme within its own sphere and the encroachment by one
branch on another is to be avoided at all costs. 109

The doctrine of separation of powers, a basic concept under our Constitution,


embodies the principle of a tripartite division of governmental authority entrusted to
Congress, the President, and the Supreme Court as well as such inferior courts as
may be created by law. Three departments of government are thus provided for, the
legislative vested with the lawmaking function, the executive with the enforcement
of what has been thus enacted, and the judiciary with the administration of justice,
deciding cases according to law. The reason for such a doctrine is to assure liberty,
no one branch being enabled to arrogate unto itself the whole power to govern and
thus in a position to impose its unfettered will. If it were so, the rights of the
individual could with impunity be disregarded; he could be placed at its mercy. The
three departments are coordinate and co-equal, each having exclusive cognizance
of matters within its jurisdiction and supreme in its own sphere. That is to guarantee
independence, no interference being allowed on matters left to the exclusive

38
concern of each. Much less is control by only one of the three departments of any or
both of the others permissible.110

The system of separation of powers contemplates the division of the


functions of government into its three (3) branches: the legislative which is
empowered to make laws; the executive which is required to carry out the law; and
the judiciary which is charged with interpreting the law. Consequent to actual
delineation of power, each branch of government is entitled to be left alone to
discharge its duties as it sees fit. Expressed in another perspective, the system of
separated powers is designed to restrain one branch from inappropriate
interference in the business, or intruding upon the central prerogatives, of another
branch; it is a blend of courtesy and caution, "a self-executing safeguard against the
encroachment or aggrandizement of one branch at the expense of the other. 111

Our present governmental system is built on the separation of powers among


the three branches of government. The legislature is generally limited to the
enactment of laws, the executive to the enforcement of laws and the judiciary to the
application of laws. This separation is intended to prevent a concentration of
authority in one person or group that might lead to an irreversible error or abuse in
its exercise to the detriment of our republican institutions. In the words of Justice
Laurel, the doctrine of separation of powers is intended to secure action, to forestall
overaction, to prevent despotism and obtain efficiency. 112 Thus, the principle of
separation of powers prevents the concentration of legislative, executive, and
judicial powers to a single branch of government by deftly allocating their exercise
to the three branches of government.113

Under the principle of separation of powers, Congress, the President, and the
Judiciary may not encroach on fields allocated to each of them. The legislature is
generally limited to the enactment of laws, the executive to the enforcement of
laws, and the judiciary to their interpretation and application to cases and
controversies. The principle presupposes mutual respect by and between the
executive, legislative and judicial departments of the government and calls for them
to be left alone to discharge their duties as they see fit. 114

The separation of powers is a fundamental principle in our system of


government. It obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept separate and distinct that
the Constitution intended them to be absolutely unrestrained and independent of
each other. The Constitution has provided for an elaborate system of checks and
balances to secure coordination in the workings of the various departments of the
government.115 Verily, the principle of checks and balances is not a general
apothegm for total insulation but rather of functional interrelation. It is clear that no
one office of government works in absolute autonomy. To determine the gradations
and contours of institutional independence, one must look into the blueprint of the
Constitution which embodies the will and wisdom of the people. 116

Broadly speaking, there is a violation of the separation of powers principle


when one branch of government unduly encroaches on the domain of another. US

39
Supreme Court decisions instruct that the principle of separation of powers may be
violated in two (2) ways: firstly, "one branch may interfere impermissibly with the
others performance of its constitutionally assigned function"; and "alternatively,
the doctrine may be violated when one branch assumes a function that more
properly is entrusted to another." In other words, there is a violation of the principle
when there is impermissible (a) interference with and/or (b) assumption of another
departments functions.117

IVA. Principles and Policies in Government

The 1987 Philippine Constitution is the fundamental expression of our


democratic principles. The basic principles and policies governing the exercise of
governmental powers as provided for under Chapter 1, Book II on Distribution of
Powers of Government of the Administrative Code of 1987, are quoted hereunder in
full text, viz.:
Section 1. Guiding Principles and Policies in Government. - Governmental
power shall be exercised in accordance with the following basic principles and
policies:

1. The Philippines is a democratic and republican State. Sovereignty resides


in the people and all government authority emanates from them.

2. The State values the dignity of every human person and guarantees full
respect for human rights.

3. Civilian authority is, at all times, supreme over the military.

4. The State shall ensure the autonomy of local governments.

5. The territorial and political subdivisions of the Republic of the Philippines


are the provinces, cities, municipalities, and barangays. There shall be
autonomous regions, in accordance with the Constitution, in Muslim
Mindanao and the Cordilleras as may be provided by law.

6. The separation of Church and State shall be inviolable.

40
7. The right of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making
shall not be abridged. The State shall, by law, facilitate the establishment
of adequate consultation mechanisms.

8. The powers expressly vested in any branch of the Government shall not
be exercised by, nor delegated to, any other branch of the Government,
except to the extent authorized by the Constitution.

DEMOCRATIC AND REPUBLICAN STATE

A democratic government is necessarily a government of laws. In a


republican government those laws are themselves ordained by the people. 118
Fundamental to the idea of a democratic and republican state is the right of the
people to determine their own destiny through the choice of leaders they may have
in government.119 There is no more basic principle in our government than the one
enunciated in the fundamental law to the effect that sovereignty resides in the
people. The mean through which then people exercise that sovereignty is popular
suffrage.120 Our people express their mighty sovereignty mainly thru the election
ballot where they decide, free from any fetter, who will represent them in
government. In a representative government, the choice by the people of who will
be their voice is nothing less than sacred, hence, its desecration is unpardonable. 121

The word democratic contemplates participatory democracy such as where


the people would act directly in their sovereign will, and not through their
representatives,122 and this is manifested through ballot, an important instrumental
value in preserving the viability of constitutional democracy, by which the people
choose their leaders in accordance with the fundamental principle of representative
democracy.123

All our fundamental laws set in stone the principle that "[t]he Philippines is a
democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." An important component of this
sovereign power is the right of the people to elect officials who will wield the powers
of government, i.e., the power to make laws and the power to execute laws. These
powers are enormous and in the wrong hands can wreak havoc to the people. Our
laws therefore regulate their exercise. 124

A republican state is representative government, a government run by and


for the people. It is not a pure democracy where the people govern themselves
directly. The essence of republicanism is representation and renovation, the
selection by the citizenry of a corps of public functionaries who derive their
mandate from the people and act on their behalf, serving for a limited period only,
after which they are replaced or retained, at the option of their principal. Obviously,
a republican government is a responsible government whose officials hold and

41
discharge their position as a public trust and shall, according to the Constitution, at
all times be accountable to the people they are sworn to serve. The purpose of a
republican government is the promotion of the common welfare according to the
will of the people themselves.125

A democratic form of government requires that political rights be enjoyed by


the citizens regardless of social or economic distinctions. Such is our government.
As far back as 1899, the Representatives of the Filipino people adopted a Political
Constitution at Malolos, Bulacan, providing that: "The political association of all the
Filipinos constitutes a nation, whose state is called the Philippine Republic"; "The
Philippine Republic is free and independent"; and "Sovereignty
resides exclusively in the people." A generation later, in 1935, the Filipino people,
imploring the aid of Divine Providence, ordained and promulgated the present
Constitution of the Philippines, stating the same principle: "The Philippines is a
republican state. Sovereignty resides in the people and all government authority
emanates from them." Clearly and solemnly, therefore, our citizenry have thus been
given the supreme guaranty of a democratic way of life, with all its freedom and
limitations, all its rights and duties.126

Genuine democracy thrives only where the power and right of the people to
elect the men to whom they would entrust the privilege to run the affairs of the
state exist. In the language of the declaration of principles of our Constitution, "The
Philippines is a republican state. Sovereignty resides in the people and all
government authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely because
the people in it can be governed only by officials whom they themselves have
placed in office by their votes.127

In a democracy, the citizens right to freely participate in the exchange of


ideas in furtherance of political decision-making is recognized. It deserves the
highest protection as public participation in nation-building is a fundamental
principle in our Constitution.128 If our democracy and republicanism are to be
worthwhile, the conduct of public affairs by our officials must be allowed to suffer
incessant and unabating scrutiny, favorable or unfavorable, everyday and at all
times. Every holder of power in our government must be ready to undergo exposure
any moment of the day or night, from January to December every year, as it is only
in this way that he can rightfully gain the confidence of the people. 129 The power of
the State is derived from the authority and mandate given to it by the people,
through their representatives elected in the legislative and executive branches of
government. The sovereignty of the Filipino people is dependent on their ability to
freely express themselves without fear of undue reprisal by the government.
Government, too, is shaped by comments and criticisms of the various publics that
it serves.130

The sovereignty of our people is the primary postulate of the 1987


Constitution. For this reason, it appears as the first in our declaration of principles
and state policies. Thus, section 1 of Article II of our fundamental law proclaims that
"the Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them." The same principle
served as the bedrock of our 1973 and 1935 Constitutions. It is one of the few

42
principles whose truth has been cherished by the Americans as self-evident. Section
4, Article IV of the U.S. Constitution makes it a duty of the Federal government to
guarantee to every state a "republican form of government." With understandable
fervor, the American authorities imposed republicanism as the cornerstone of our
1935 Constitution then being crafted by its Filipino framers.
Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is
more people-oriented. Thus, section 4 of Article II provides as a state policy that the
prime duty of the Government is "to serve and protect the people." Section 1,
Article XI also provides that ". . . public officers . . . must at all times be accountable
to the people . . ." Sections 15 and 1 of Article XIII define the role and rights of
people's organizations. Section 5(2) of Article XVI mandates that "[t]he state shall
strengthen the patriotic spirit and nationalist consciousness of the military, and
respect for people's rights in the performance of their duty." And section 2 of Article
XVII provides that "amendments to this Constitution may likewise be directly
proposed by the people through initiative . . ." All these provisions and more are
intended to breathe more life to the sovereignty of our people.

To be sure, the sovereignty of our people is not a kabalistic principle whose


dimensions are buried in mysticism. Its metes and bounds are familiar to the
framers of our Constitutions. They knew that in its broadest sense, sovereignty is
meant to be supreme, the jus summi imperu, the absolute right to govern. An
essential quality of sovereignty is legal omnipotence, viz.: "Legal theory establishes
certain essential qualities inherent in the nature of sovereignty. The first is legal
omnipotence. This means that the sovereign is legally omnipotent and absolute in
relation to other legal institutions. It has the power to determine exclusively its legal
competence. Its powers are original, not derivative. It is the sole judge of what it
should do at any given time." A more amplified definition of sovereignty is that of
"a final power of final legal adjustment of all legal issues." Sovereignty itself is, of
course, not subject to law, for it is the author and source of law; but in our system,
while sovereign powers are delegated to the agencies of government, sovereignty
itself remains with the people, by whom and for whom all government exists and
acts."

In our Constitution, the people established a representative democracy as


distinguished from a pure democracy. It is axiomatic that sovereignty is illimitable.
The representatives cannot dictate to the sovereign people. They may guide them;
but they cannot supplant their judgment, Such an opposite view likewise distrusts
the wisdom of the people as much as it despises their intelligence. It evinces a
presumptuous pretension to intellectual superiority. There are thousands upon
thousands among the citizenry, who are not in the public service, who are more
learned and better skilled than many of their elected representatives.

While Art. II, 1 of the Constitution says that "sovereignty resides in the
people and all government authority emanates from them," it also says that "the
Philippines is a democratic and republican state." This means that ours is a
representative democracy as distinguished from a direct democracy in which
the sovereign will of the people is expressed through the ballot, whether in an
election, referendum, initiative, recall (in the case of local officials) or plebiscite. Any
exercise of the powers of sovereignty in any other way is unconstitutional. 131

43
Pursuant to the Freedom Constitution, the 1986 Constitutional Commission
drafted the 1987 Constitution which was ratified and became effective on February
2, 1987. As in the 1935 and 1973 Constitutions, it retained a republican system of
government, but emphasized and created more channels for the exercise of the
sovereignty of the people through recall, initiative, referendum and
plebiscite. Because of the wide-scale violation of human rights during the
dictatorship, the 1987 Constitution contains a Bill of Rights which more jealously
safeguards the peoples "fundamental liberties in the essence of a constitutional
democracy", in the words of ConCom delegate Fr. Joaquin Bernas, S.J. It declares in
its state policies that "(t)he state values the dignity of every human person and
guarantees full respect for human rights." In addition, it has a separate Article on
Social Justice and Human Rights, under which, the Commission on Human Rights
was created.132

HUMAN DIGNITY AND HUMAN RIGHTS

The 1987 Constitution provides that "[t]he State values the dignity of every
human person and guarantees full respect for human rights." The Constitution
created a Commission on Human Rights with the function, among others, to
"[m]onitor the Philippine Government's compliance with international treaty
obligations on human rights." The framers of the Constitution made it clear that the
term "human rights" as used in the Constitution referred to the civil and political
rights embodied in the International Covenant on Civil and Political Rights to which
the Philippines is a signatory.

The Covenant, being an international treaty to which the Philippines is a


signatory, is part of the country's municipal law. The Covenant carries great weight
in the interpretation of the scope and meaning of the term "human rights" as used
in the Constitution. Unquestionably, the framers of the Constitution intentionally
referred to the civil and political rights embraced in the Covenant in describing the
term "human rights." The Constitution even mandates the independent Commission
on Human Rights to monitor the compliance of the Philippine Government, which
includes the judiciary, with its treaty obligations under the Covenant.

The 1987 Constitution has conferred on the Court the power to "[p]romulgate
rules concerning the protection and enforcement of constitutional rights." This is an
innovation in the 1987 Constitution to insure, in the words of former Chief Justice
Roberto R. Concepcion, one of the framers of the Constitution, that "the protection
and enforcement of these constitutional rights is something that the courts have to
consider in the exercise of their judicial power. This provision stresses that
constitutional rights, whether found in the Bill of Rights or in other provisions of the
Constitution like in the Declaration of Principles and State Policies, are "not merely
declaratory but are also enforceable." One such right, the enforcement and
protection of which is expressly guaranteed by the State under the Constitution, is
the right to "full respect for human rights." 133

By constitutional mandate, the Philippines is committed to ensure that human


rights and fundamental freedoms are fully enjoyed by everyone. It was one of the
countries that voted in favor of the Universal Declaration of Human Rights (UDHR),
which was a mere two years after it gained independence from the United States of

44
America. In addition, the Philippines is a signatory to many United Nations human
rights treaties such as the Convention on the Elimination of All Forms of Racial
Discrimination, the International Covenant on Economic, Social and Cultural Rights,
the International Covenant on Civil and Political Rights, the Convention Against
Torture, and the Convention on the Rights of the Child, among others. As a signatory
to the UDHR, the Philippines pledged itself to achieve the promotion of universal
respect for and observance of human rights and fundamental freedoms, keeping in
mind the standards under the Declaration. 134

The Philippines, along with the other members of the family of nations,
committed to uphold the fundamental human rights as well as value the worth and
dignity of every person. This commitment is enshrined in Section II, Article II of our
Constitution which provides: "The State values the dignity of every human person
and guarantees full respect for human rights." The Philippines, therefore, has the
responsibility of protecting and promoting the right of every person to liberty and
due process, ensuring that those detained or arrested can participate in the
proceedings before a court, to enable it to decide without delay on the legality of
the detention and order their release if justified. In other words, the Philippine
authorities are under obligation to make available to every person under detention
such remedies which safeguard their fundamental right to liberty. 135

PRINCIPLE OF CIVILIAN SUPREMACY OVER MILITARY

No one is above the law, including the military. In fact, the present
Constitution declares it as a matter of principle that civilian authority is, at all times,
supreme over the military.136

The 1987 Constitution reflects both the recognition by the Constitutional


Commission of the necessity of a military force and the widespread concern, after
two decades of authoritarian rule, over its role in a democratic society. Thus, while
the Constitution recognizes the need for a military force to protect its citizens, it
emphatically ordains the supremacy, at all times of civilian authority over the
military. Through numerous provisions scattered all over the fundamental law, the
constitutional injunction mandating the principle of civilian supremacy over the
military has been given substantive detail.137

The President, as Commander-in-Chief, is not a member of the Armed Forces.


He remains a civilian whose duties under the Commander-in-Chief provision
"represent only a part of the organic duties imposed upon him. All his other
functions are clearly civil in nature." His position as a civilian Commander-in-Chief
is consistent with, and a testament to, the constitutional principle that "civilian
authority is, at all times, supreme over the military." 138

The vitality of the tenet that the President is the commander-in-chief of the
Armed Forces is most crucial to the democratic way of life, to civilian supremacy
over the military, and to the general stability of our representative system of
government. The Constitution reposes final authority, control and supervision of the
AFP to the President, a civilian who is not a member of the armed forces, and whose
duties as commander-in-chief represent only a part of the organic duties imposed
upon the office, the other functions being clearly civil in nature. Civilian supremacy

45
over the military also countermands the notion that the military may bypass civilian
authorities, such as civil courts, on matters such as conducting warrantless
searches and seizures.

Pursuant to the maintenance of civilian supremacy over the military, the


Constitution has allocated specific roles to the legislative and executive branches of
government in relation to military affairs. Military appropriations, as with all other
appropriations, are determined by Congress, as is the power to declare the
existence of a state of war. Congress is also empowered to revoke a proclamation of
martial law or the suspension of the writ of habeas corpus. The approval of the
Commission on Appointments is also required before the President can promote
military officers from the rank of colonel or naval captain. Otherwise, on the
particulars of civilian dominance and administration over the military, the
Constitution is silent, except for the commander-in-chief clause which is fertile in
meaning and implication as to whatever inherent martial authority the President
may possess.

The commander-in-chief provision in the Constitution is denominated as


Section 18, Article VII, which begins with the simple declaration that "[t]he President
shall be the Commander-in-Chief of all armed forces of the Philippines x x x" Outside
explicit constitutional limitations, such as those found in Section 5, Article XVI, the
commander-in-chief clause vests on the President, as commander-in-chief, absolute
authority over the persons and actions of the members of the armed forces. Such
authority includes the ability of the President to restrict the travel, movement and
speech of military officers, activities which may otherwise be sanctioned under
civilian law.139

Indeed, while the President is still a civilian, Article II, Section 3 of the
Constitution mandates that civilian authority is, at all times, supreme over the
military, making the civilian president the nations supreme military leader. The net
effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian
President is the ceremonial, legal and administrative head of the armed forces. The
Constitution does not require that the President must be possessed of military
training and talents, but as Commander-in-Chief, he has the power to direct military
operations and to determine military strategy. Normally, he would be expected to
delegate the actual command of the armed forces to military experts; but the
ultimate power is his. As Commander-in-Chief, he is authorized to direct the
movements of the naval and military forces placed by law at his command, and to
employ them in the manner he may deem most effectual. 140

Be it noted that while the AFP falls under the Commander-in-Chief powers of
the President, the same is not true for PNP. The national police force does not fall
under the Commander-in-Chief powers of the President. This is necessarily so since
the police force, not being integrated with the military, is not a part of the Armed
Forces of the Philippines. As a civilian agency of the government, it properly comes
within, and is subject to, the exercise by the President of the power of executive
control.141

PRINCIPLE OF LOCAL AUTONOMY

46
The State is mandated to ensure the autonomy of local governments. 142 The
Constitution has expressly adopted the policy of ensuring the autonomy of LGUs. To
highlight its significance, the entire Article X of the Constitution was devoted to
laying down the bedrock upon which this policy is anchored. 143

The exercise of greater local autonomy is even more marked in the present
Constitution.144 The principle of local autonomy is enshrined in and zealously
protected under the Constitution. In Article II, Section 25 thereof, the people
expressly adopted the following policy:
Section 25. The State shall ensure the autonomy of local governments. 145

An entire article (Article X) of the Constitution has been devoted to


guaranteeing and promoting the autonomy of LGUs. The 14 sections in Article X on
Local Government not only reiterate earlier doctrines but give in greater detail the
provisions making local autonomy more meaningful. Thus, Sections 2 and 3 of
Article X provide:

Section 2. The territorial and political subdivisions shall enjoy local autonomy.

Section 3. The Congress shall enact a local government code which shall
provide for a more responsive and accountable local government structure
instituted through a system of decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and functions and duties
of local officials, and all other matters relating to the organization and operation of
the local units.146

The 1987 Constitution enunciates the policy that the territorial and political
subdivisions shall enjoy local autonomy. In obedience to that mandate of the
fundamental law, Republic Act No. 7160, otherwise known as the Local Government
Code, expresses that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy in order to enable them to attain their
fullest development as self-reliant communities and make them more effective
partners in the attainment of national goals, and that it is a basic aim of the State to
provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government units
shall be given more powers, authority, responsibilities and resources.

While the Constitution seeks to strengthen local units and ensure their
viability, clearly, however, it has never been the intention of that organic law to
create an imperuim in imperio and install an infra sovereign political subdivision
independent of a single sovereign state. 147 The basic relationship between the
national legislature and the local government units has not been enfeebled by the
new provisions in the Constitution strengthening the policy of local autonomy.
Congress retains control of the local government units although in significantly
reduced degree now than under our previous Constitutions. The national legislature

47
is still the principal of the local government units, which cannot defy its will or
modify or violate it.148

As the Constitution itself declares, local autonomy means a more responsive


and accountable local government structure instituted through a system of
decentralization. The Constitution does nothing more than to break up the
monopoly of the national government over the affairs of local governments and as
put by political adherents, to "liberate the local governments from the imperialism
of Manila." Autonomy, however, is not meant to end the relation of partnership and
interdependence between the central administration and local government units, or
otherwise, to usher in a regime of federalism. The Charter has not taken such a
radical step. Local governments, under the Constitution, are subject to regulation,
however limited, and for no other purpose than precisely, albeit paradoxically, to
enhance self-government.149

A necessary prerequisite of autonomy is decentralization. Decentralization is


a decision by the central government authorizing its subordinates, whether
geographically or functionally defined, to exercise authority in certain areas. It
involves decision-making by subnational units. It is typically a delegated power,
wherein a larger government chooses to delegate certain authority to more local
governments. Federalism implies some measure of decentralization, but unitary
systems may also decentralize. Decentralization differs intrinsically from federalism
in that the sub-units that have been authorized to act (by delegation) do not
possess any claim of right against the central government.

Decentralization comes in two formsdeconcentration and devolution.


Deconcentration is administrative in nature; it involves the transfer of functions or
the delegation of authority and responsibility from the national office to the regional
and local offices. This mode of decentralization is also referred to as administrative
decentralization.

Devolution, on the other hand, connotes political decentralization, or the


transfer of powers, responsibilities, and resources for the performance of certain
functions from the central government to local government units. This is a more
liberal form of decentralization since there is an actual transfer of powers and
responsibilities. It aims to grant greater autonomy to local government units in
cognizance of their right to self-government, to make them self-reliant, and to
improve their administrative and technical capabilities. 150

It is through a system of decentralization that the State shall promote a more


responsive and accountable local government structure, the concept of local
autonomy does not imply the conversion of local government units into "mini-
states." With local autonomy, the Constitution did nothing more than "to break up
the monopoly of the national government over the affairs of the local government"
and, thus, did not intend to sever "the relation of partnership and interdependence
between the central administration and local government units." Paradoxically, local
governments are still subject to regulation, however limited, for the purpose of
enhancing self-government.

48
Under the Philippine concept of local autonomy, the national government has
not completely relinquished all its powers over local governments, including
autonomous regions. Only administrative powers over local affairs are delegated to
political subdivisions. The purpose of the delegation is to make governance more
directly responsive and effective at the local levels. In turn, economic, political and
social development at the smaller political units are expected to propel social and
economic growth and development. But to enable the country to develop as a
whole, the programs and policies effected locally must be integrated and
coordinated towards a common national goal. Thus, policy-setting for the entire
country still lies in the President and Congress.

Now, autonomy is either decentralization of administration or decentralization


of power. There is decentralization of administration when the central government
delegates administrative powers to political subdivisions in order to broaden the
base of government power and in the process to make local governments more
responsive and accountable and ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of national
development and social progress. At the same time, it relieves the central
government of the burden of managing local affairs and enables it to concentrate
on national concerns. The President exercises general supervision over them, but
only to ensure that local affairs are administered according to law. He has no
control over their acts in the sense that he can substitute their judgments with his
own.

Decentralization of power, on the other hand, involves an abdication of


political power in the favor of local governments units declared to be autonomous.
In that case, the autonomous government is free to chart its own destiny and shape
its future with minimum intervention from central authorities. Decentralization of
power amounts to self-immolation, since in that event, the autonomous
government becomes accountable not to the central authorities but to its
constituency.151

To safeguard the state policy on local autonomy, the Constitution confines the
power of the President over LGUs to mere supervision. The President exercises
general supervision over them, but only to ensure that local affairs are
administered according to law. He has no control over their acts in the sense that
he can substitute their judgments with his own." Thus, Section 4, Article X of the
Constitution, states:

Section 4. The President of the Philippines shall exercise general supervision


over local governments. Provinces with respect to component cities and
municipalities, and cities and municipalities with respect to component barangays,
shall ensure that the acts of their component units are within the scope of their
prescribed powers and functions.

The Presidents power of general supervision means the power of a superior


officer to see to it that subordinates perform their functions according to law. This is
distinguished from the Presidents power of control which is the power to alter or
modify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the President over that of the subordinate

49
officer. The power of control gives the President the power to revise or reverse the
acts or decisions of a subordinate officer involving the exercise of discretion. 152

Since LGUs are subject only to the power of general supervision of the
President, the Presidents authority is limited to seeing to it that rules are followed
and laws are faithfully executed. The President may only point out that rules have
not been followed but the President cannot lay down the rules, neither does he have
the discretion to modify or replace the rules. 153

The goal of the decentralization of powers to the local government units


(LGUs) is to ensure the enjoyment by each of the territorial and political
subdivisions of the State of a genuine and meaningful local autonomy. To attain the
goal, the National Legislature has devolved the three great inherent powers of the
State to the LGUspolice power, power of eminent domain and power of taxation.
Each political subdivision is thereby vested with such powers subject to
constitutional and statutory limitations.154

This paradigm shift results from the realization that genuine development can
be achieved only by strengthening local autonomy and promoting decentralization
of governance. For a long time, the country's highly centralized government
structure has bred a culture of dependence among local government leaders upon
the national leadership. It has also "dampened the spirit of initiative, innovation and
imaginative resilience in matters of local development on the part of local
government leaders. The 1987 Constitution enunciates the policy that the territorial
and political subdivisions shall enjoy local autonomy. In obedience to that mandate
of the fundamental law, the LGC expresses that the territorial and political
subdivisions of the State shall enjoy genuine and meaningful local autonomy in
order to enable them to attain their fullest development as self-reliant communities
and make them more effective partners in the attainment of national goals, and
that it is a basic aim of the State to provide for a more responsive and accountable
local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities and
resources.155

FISCAL AUTONOMY OF LOCAL GOVERNMENT UNITS

Apart from administrative autonomy, an equally vital facet of local


governance under the 1987 Constitution is fiscal autonomy. Local autonomy
includes both administrative and fiscal autonomy. Local fiscal autonomy includes
the power of the LGUs to, inter alia, allocate their resources in accordance with their
own priorities.

Under existing law, local government units, in addition to having


administrative autonomy in the exercise of their functions, enjoy fiscal autonomy as
well. Fiscal autonomy means that local governments have the power to create their
own sources of revenue in addition to their equitable share in the national taxes
released by the national government, as well as the power to allocate their
resources in accordance with their own priorities. It extends to the preparation of
their budgets, and local officials in turn have to work within the constraints thereof.
They are not formulated at the national level and imposed on local governments,

50
whether they are relevant to local needs and resources or not. Hence, the necessity
of a balancing of viewpoints and the harmonization of proposals from both local and
national officials, who in any case are partners in the attainment of national goals. 156

To recall, prior to the enactment of the Local Government Code, various


measures have been enacted to promote local autonomy. Despite these initiatives,
however, the shackles of dependence on the national government remained. Local
government units were faced with the same problems that hamper their capabilities
to participate effectively in the national development efforts, among which are: (a)
inadequate tax base, (b) lack of fiscal control over external sources of income, (c)
limited authority to prioritize and approve development projects, (d) heavy
dependence on external sources of income, and (e) limited supervisory control over
personnel of national line agencies.157

Consequently, the Local Government Code provides:

"x x x [I]n the event the national government incurs an unmanaged public
sector deficit, the President of the Philippines is hereby authorized, upon the
recommendation of [the] Secretary of Finance, Secretary of the Interior and Local
Government and Secretary of Budget and Management, and subject to consultation
with the presiding officers of both Houses of Congress and the presidents of the
liga, to make the necessary adjustments in the internal revenue allotment of local
government units but in no case shall the allotment be less than thirty percent
(30%) of the collection of national internal revenue taxes of the third fiscal year
preceding the current fiscal year x x x."

There are therefore several requisites before the President may interfere in
local fiscal matters: (1) an unmanaged public sector deficit of the national
government; (2) consultations with the presiding officers of the Senate and the
House of Representatives and the presidents of the various local leagues; and (3)
the corresponding recommendation of the secretaries of the Department of Finance,
Interior and Local Government, and Budget and Management. Furthermore, any
adjustment in the allotment shall in no case be less than thirty percent (30%) of the
collection of national internal revenue taxes of the third fiscal year preceding the
current one.
A basic feature of local fiscal autonomy is the automatic release of the shares
of LGUs in the national internal revenue. This is mandated by no less than the
Constitution. The Local Government Code specifies further that the release shall be
made directly to the LGU concerned within five (5) days after every quarter of the
year and "shall not be subject to any lien or holdback that may be imposed by the
national government for whatever purpose." As a rule, the term "shall" is a word of
command that must be given a compulsory meaning. The provision is, therefore,
imperative.158

TERRITORIAL AND POLITICAL SUBDIVISIONS

Section 1, Article X on Local Government of the 1987 Philippine Constitution


expressly provides:

51
Section 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.

A local government is a "political subdivision of a nation or state which is


constituted by law and has substantial control of local affairs." The Local
Government Code of 1991 defines a local government unit as a "body politic and
corporate, "one endowed with powers as a political subdivision of the National
Government and as a corporate entity representing the inhabitants of its territory.
Local government units are the provinces, cities, municipalities and barangays.
They are also the territorial and political subdivisions of the state. 159

The local government units are political and corporate units. They are the
territorial and political subdivisions of the state. They possess legal personality on
the authority of the Constitution and by action of the Legislature. The Constitution
defines them as entities that Congress can, by law, create, divide, abolish, merge;
or whose boundaries can be altered based on standards again established by both
the Constitution and the Legislature. A local government unit's corporate existence
begins upon the election and qualification of its chief executive and a majority of
the members of its Sanggunian.

As a political subdivision, a local government unit is an "instrumentality of the


state in carrying out the functions of government." As a corporate entity with a
distinct and separate juridical personality from the State, it exercises special
functions for the sole benefit of its constituents. It acts as "an agency of the
community in the administration of local affairs" and the mediums through which
the people act in their corporate capacity on local concerns. In light of these roles,
the Constitution saw it fit to expressly secure the consent of the people affected by
the creation, division, merger, abolition or alteration of boundaries of local
government units through a plebiscite. 160 A local government unit, in the
performance of its political functions, is an agency of the Republic and acts for the
latters benefit.161

Furthermore, the Constitution provides for two types of local governance


other than the national government: 1) The territorial and political subdivisions
composed of provinces, cities, municipalities and barangays; and 2) autonomous
regions. The division of Article X of the Constitution distinguishes between their
creation and relationship with the national government.

The creation of autonomous regions takes into consideration the "historical


and cultural heritage, economic and social structures, and other relevant
characteristics" which its constituent geographical areas share in common. These
factors are not considered in the creation of territorial and political subdivisions.

Autonomous regions are not only created by an act of the Congress. The
Constitution also provides for a plebiscite requirement before the organic act that
creates an autonomous region becomes effective. This constitutes the creation of
autonomous regions a direct act of the people. It means that the basic structure of
an autonomous region, consisting of the executive department and legislative

52
assembly, its special courts, and the provisions on its powers may not be easily
amended or superseded by a simple act of the Congress.

Moreover, autonomous regions have powers, e.g. over their administrative


organization, sources of revenues, ancestral domain, natural resources, personal,
family and property relations, regional planning development, economic, social and
tourism development, educational policies, cultural heritage and other matters.

On the other hand, the creation of territorial and political subdivisions is


subject to the local government code enacted by the Congress without a plebiscite
requirement. While this does not disallow the inclusion of provisions requiring
plebiscites in the creation of provinces, cities, and municipalities, the local
government code may be amended or superseded by another legislative act that
removes such requirement. Their government structure, powers, and
responsibilities, therefore, are always subject to amendment by legislative acts.

Territorial and political subdivisions are only allowed to take care of their local
affairs so that governance will be more responsive and effective to their unique
needs. The Congress still retains control over the extent of powers or autonomy
granted to them.

Autonomous regions are granted more powers and less intervention from the
national government than territorial and political subdivisions. They are, thus, in a
more asymmetrical relationship with the national government as compared to other
local governments or any regional formation. The Constitution grants them
legislative powers over some matters, e.g. natural resources, personal, family and
property relations, economic and tourism development, educational policies, that
are usually under the control of the national government. However, they are still
subject to the supervision of the President. Their establishment is still subject to the
framework of the Constitution, particularly, sections 15 to 21 of Article X, national
sovereignty and territorial integrity of the Republic of the Philippines. 162

For the first time in its history after three Constitutions, the Philippines
ordained the establishment of regional autonomy with the adoption of the 1987
Constitution. Sections 1 and 15, Article X mandate the creation of autonomous
regions in Muslim Mindanao and in the Cordilleras. Section 15 specifically provides
that "[t]here shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines." To effectuate this mandate, the Charter devotes a
number of provisions under Article X.

The 1987 Constitution mandates regional autonomy to give a bold and


unequivocal answer to the cry for a meaningful, effective and forceful autonomy. It
is an indictment against the status quo of a unitary system that has ineluctably tied
the hands of progress in our country. The idea behind the Constitutional provisions
for autonomous regions is to allow the separate development of peoples with

53
distinctive cultures and traditions. These cultures, as a matter of right, must be
allowed to flourish.

Autonomy, as a national policy, recognizes the wholeness of the Philippine


society in its ethnolinguistic, cultural, and even religious diversities. It strives to free
Philippine society of the strain and wastage caused by the assimilationist approach.
Policies emanating from the legislature are invariably assimilationist in character
despite channels being open for minority representation. As a result, democracy
becomes an irony to the minority group.

The need for regional autonomy is more pressing in the case of the Filipino
Muslims and the Cordillera people who have been fighting for it. Their political
struggle highlights their unique cultures and the unresponsiveness of the unitary
system to their aspirations. The Moros' struggle for self-determination dates as far
back as the Spanish conquest in the Philippines. Even at present, the struggle goes
on.

Perforce, regional autonomy is also a means towards solving existing serious


peace and order problems and secessionist movements. Parenthetically, autonomy,
decentralization and regionalization, in international law, have become politically
acceptable answers to intractable problems of nationalism, separatism, ethnic
conflict and threat of secession. However, the creation of autonomous regions does
not signify the establishment of a sovereignty distinct from that of the Republic, as
it can be installed only "within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines."

Regional autonomy is the degree of self-determination exercised by the local


government unit vis--vis the central government. In international law, the right to
self-determination need not be understood as a right to political separation, but
rather as a complex net of legal-political relations between a certain people and the
state authorities. It ensures the right of peoples to the necessary level of autonomy
that would guarantee the support of their own cultural identity, the establishment of
priorities by the community's internal decision-making processes and the
management of collective matters by themselves.

If self-determination is viewed as an end in itself reflecting a preference for


homogeneous, independent nation-states, it is incapable of universal application
without massive disruption. However, if self-determination is viewed as a means to
an endthat end being a democratic, participatory political and economic system in
which the rights of individuals and the identity of minority communities are
protectedits continuing validity is more easily perceived.

Regional autonomy refers to the granting of basic internal government


powers to the people of a particular area or region with least control and supervision
from the central government. The objective of the autonomy system is to permit
determined groups, with a common tradition and shared social-cultural
characteristics, to develop freely their ways of life and heritage, exercise their
rights, and be in charge of their own business. This is achieved through the
establishment of a special governance regime for certain member communities who
choose their own authorities from within the community and exercise the

54
jurisdictional authority legally accorded to them to decide internal community
affairs.

In the Philippine setting, regional autonomy implies the cultivation of more


positive means for national integration. It would remove the wariness among the
Muslims, increase their trust in the government and pave the way for the
unhampered implementation of the development programs in the region.

The creation of autonomous regions contemplates the grant of political


autonomyan autonomy which is greater than the administrative autonomy
granted to local government units. It held that "the constitutional guarantee of local
autonomy in the Constitution (Art. X, Sec. 2) refers to administrative autonomy of
local government units or, cast in more technical language, the decentralization of
government authority. On the other hand, the creation of autonomous regions in
Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution,
contemplates the grant of political autonomy and not just administrative autonomy
to these regions."

The aim of the Constitution is to extend to the autonomous peoples, the


people of Muslim Mindanao, the right to self-determinationa right to choose their
own path of development; the right to determine the political, cultural and
economic content of their development path within the framework of the
sovereignty and territorial integrity of the Philippine Republic. Self-determination
refers to the need for a political structure that will respect the autonomous peoples'
uniqueness and grant them sufficient room for self-expression and self-construction.

In treading their chosen path of development, the Muslims in Mindanao are to


be given freedom and independence with minimum interference from the National
Government. This necessarily includes the freedom to decide on, build, supervise
and maintain the public works and infrastructure projects within the autonomous
region.163

As of this writing, the only autonomous region that has been created is the
ARMM. At present, the constitutional mandate of local autonomy for Muslim
Mindanao has already been implemented. Republic Act No. 6734 (R.A. 6734),
entitled "An Act Providing for An Organic Act for the Autonomous Region in Muslim
Mindanao," was enacted and signed into law on 1 August 1989. The law contains
elaborate provisions on the powers of the Regional Government and the areas of
jurisdiction which are reserved for the National Government. The year 2001 saw the
passage of Republic Act No. 9054, entitled "An Act to Strengthen and Expand the
Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the
Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region
in Muslim Mindanao, as Amended." Rep. Act No. 9054 contains detailed provisions
on the powers of the Regional Government and the retained areas of governance of
the National Government. R.A. 6734 and R.A. 9054 are collectively referred to as the
ARMM Organic Acts.164

DOCTRINE OF SEPARATION OF CHURCH AND STATE

55
At the outset, it cannot be denied that we all live in a heterogeneous society.
It is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in practice, has
allowed these various religious, cultural, social and racial groups to thrive in a single
society together. It has embraced minority groups and is tolerant towards allthe
religious people of different sects and the non-believers. The undisputed fact is that
our people generally believe in a deity, whatever they conceived Him to be, and to
whom they call for guidance and enlightenment in crafting our fundamental law.

In recognition of the contributions of religion to society, the 1935, 1973 and


1987 constitutions contain benevolent and accommodating provisions towards
religions such as tax exemption of church property, salary of religious officers in
government institutions, and optional religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the
State would not encroach into the affairs of the church, and vice-versa. The principle
of separation of Church and State was, thus, enshrined in Article II, Section 6 of the
1987 Constitution, viz.:

Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual


respect. Generally, the State cannot meddle in the internal affairs of the church,
much less question its faith and dogmas or dictate upon it. It cannot favor one
religion and discriminate against another. On the other hand, the church cannot
impose its beliefs and convictions on the State and the rest of the citizenry. It
cannot demand that the nation follow its beliefs, even if it sincerely believes that
they are good for the country.

Consistent with the principle that not any one religion should ever be
preferred over another, the Constitution in the above-cited provision utilizes the
term "church" in its generic sense, which refers to a temple, a mosque, an iglesia, or
any other house of God which metaphorically symbolizes a religious organization.
Thus, the "Church" means the religious congregations collectively.

Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and Article VI,
Section 29 (2), of the 1987 (Philippine) Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.

Section 29. xxx.

No public money or property shall be appropriated, applied, paid, or


employed, directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest, preacher,

56
minister, other religious teacher, or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.

In short, the constitutional assurance of religious freedom provides two


guarantees: the Establishment Clause and the Free Exercise Clause. The
establishment clause principally prohibits the State from sponsoring any religion
or favoring any religion as against other religions. It mandates a strict neutrality in
affairs among religious groups. Essentially, it prohibits the establishment of a state
religion and the use of public resources for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for
the inviolability of the human conscience. Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith. The constitutional provisions not only
prohibits legislation for the support of any religious tenets or the modes of worship
of any sect, thus forestalling compulsion by law of the acceptance of any creed or
the practice of any form of worship, but also assures the free exercise of one's
chosen form of religion within limits of utmost amplitude.

It has been said that the religion clauses of the Constitution are all designed
to protect the broadest possible liberty of conscience, to allow each man to believe
as his conscience directs, to profess his beliefs, and to live as he believes he ought
to live, consistent with the liberty of others and with the common good. Any
legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect. But if the state
regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid despite
its indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden.

The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of individual
religious beliefs and practices. In simplest terms, the free exercise clause prohibits
government from inhibiting religious beliefs with penalties for religious beliefs and
practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the
two religion clauses were intended to deny government the power to use either the
carrot or the stick to influence individual religious beliefs and practices.

Corollary to the guarantee of free exercise of one's religion is the principle


that the guarantee of religious freedom is comprised of two parts: the freedom to
believe, and the freedom to act on one's belief. The first part is absolute. The realm

57
of belief and creed is infinite and limitless bounded only by one's imagination and
thought. So is the freedom of belief, including religious belief, limitless and without
bounds. One may believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical when weighed in the
scales of orthodoxy or doctrinal standards. But between the freedom of belief and
the exercise of said belief, there is quite a stretch of road to travel.

The second part however, is limited and subject to the awesome power of the
State and can be enjoyed only with proper regard to the rights of others. It is
subject to regulation where the belief is translated into external acts that affect the
public welfare.165

Union of the Church and the State invariably ends in the Church being
absorbed, manipulated or dominated by the State, or in the State being dominated
by the Church. Usually, it is the former eventuality that takes place, for the Church
possesses no armed or coercive power comparable to what the State has.

At the beginning of her history, the Church invested the kings of recently
converted countries with the office and title of Protectors of the Church. This was all-
right so long as the kings were good and holy men, like St. Stephen of Hungary, or
at least reasonable decent men, like Charlemagne of France. But saintly and decent
men are often succeeded by scoundrels and the protectorsin the wry observation
of the King of Slam wound up protecting the Church out of everything that she
possessed.

When, in some rare instances, it is the Church that dominates the State, the
result is what we know as clericalism. Both alternatives, it is obvious, are
undesirable. When the Church is dominated by the State, she becomes a tool for the
furtherance of wordly aims. And when the State is dominated by the Church, then
the Church tends to get confused as to her nature, identity and role. The Church,
after all, is a supernatural society. Consequently, she is weakened when she places
her reliance on temporal power and resources rather than on the grace of Almighty
God. Clericalism provokes the natural reaction of separation, by which is meant the
isolation and strict confinement of the Church to the sacristy. It is the placing the
Church under house arrest.

Historians have noted that with the imposition of the separation of state and
church by the American regime, the Catholic Church, however, derived under the
principle of separation of Church and State positive benefits and advantages. Her
freedom was greatly enhanced. She was no longer subject to the various forms of
supervision and control imposed upon her during the Spanish regime. She was freed
from government intervention in the making of appointments to positions in the
ecclesiastical system, in the creation of parishes and in the establishment of
institutions of religious character.166

58
Well worth remembering is that the Church in the Philippines was
responsible for the execution of Fathers Gomez, Burgos and Zamora, of Rizal and
other Filipino patriots.167 With minor exceptions, the history of church-state
relationships was characterized by persecution, oppression, hatred, bloodshed, and
war, all in the name of the God of Love and of the Prince of Peace. Likewise with
minor exceptions, this history witnessed the unscrupulous use of religion by secular
powers to promote secular purposes and policies, and the willing acceptance of that
role by the vanguards of religion in exchange for the favors and mundane benefits
conferred by ambitious princes and emperors in exchange for religions invaluable
service.168

It is sufficient to say that our history, not to speak of the history of mankind,
has taught us that the union of church and state is prejudicial to both, for occasions
might arise when the estate will use the church, and the church the state, as a
weapon in the furtherance of their respective ends and aims. In the early stages of
our constitutional development, this principle of separation of church and state was
inserted in the Treaty of Paris between the United States and Spain of December 10,
1898, reiterated in President McKinley's Instructions of the Philippine Commission,
reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916,
and finally embodied in the constitution of the Philippines as the supreme
expression of the Filipino people.169

The rationale of the principle of the separation of church and state is summed
up in the familiar saying, "Strong fences make good-neighbors." The idea advocated
by this principle is to delineate the boundaries between the two institutions and
thus avoid encroachments by one against the other because of a misunderstanding
of the limits of their respective exclusive jurisdictions. The demarcation line calls on
the entities to "render therefore unto Ceasar the things that are Ceasar's and unto
God the things that are God's." While the state is prohibited from interfering in
purely ecclesiastical affairs, the Church is likewise barred from meddling in purely
secular matters.170 This basic principle which underlies the structure of our
government was the sharp reaction to the historical lesson learned by mankind in
general that the fusion of government and religion tends to destroy government and
degrade religion because it invariably degenerates into tyranny. 171

An ecclesiastical affair is "one that concerns doctrine, creed, or form of


worship of the church, or the adoption and enforcement within a religious
association of needful laws and regulations for the government of the membership,
and the power of excluding from such associations those deemed unworthy of
membership. Based on this definition, an ecclesiastical affair involves the
relationship between the church and its members and relate to matters of faith,
religious doctrines, worship and governance of the congregation. To be concrete,
examples of this so-called ecclesiastical affairs to which the State cannot meddle
are proceedings for excommunication, ordinations of religious ministers,

59
administration of sacraments and other activities with attached religious
significance.172

Religious teachings as expressed in public debate may influence the civil


public order but public moral disputes may be resolved only on grounds articulable
in secular terms. Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious
freedom. Likewise, if government based its actions upon religious beliefs, it would
tacitly approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens.
Expansive religious freedom therefore requires that government be neutral in
matters of religion; governmental reliance upon religious justification is inconsistent
with this policy of neutrality.173

ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS

The successful use of people power to remove public officials who have
forfeited the trust of the electorate has led the recognition of the role and rights of
peoples organization. Sections 15 and 16 of the 1987 Philippine Constitution
respectively provides:

Sec. 15. The State shall respect the role of independent people's
organizations to enable the people to pursue and protect, within the democratic
framework, their legitimate and collective interests and aspirations through
peaceful and lawful means.

People's organizations are bona fide associations of citizens with


demonstrated capacity to promote the public interest and with identifiable
leadership, membership, and structure.

Sec. 16. The right of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic decision-
making shall not be abridged. The State shall, by laws, facilitate the establishment
of adequate consultation mechanisms.

Of all the organic laws of our country, the 1987 Constitution holds most
sacrosanct the peoples role in governance. As a first principle of government, the
1987 Constitution declares in Article II, Section 1, Declaration of Principles and State
Policies, that the Philippines is not only a republican but also a democratic state.

60
The word "democratic" was added to "republican" as a "pardonable redundancy" to
highlight the importance of the peoples role in government.

Our fundamental law enshrined in rubric the indispensability of the peoples


participation in government through recall, initiative, and referendum. Similarly, it
expressly provided for the peoples right to effective and reasonable participation in
Article XIII, Section 16, on Social Justice and Human Rights, viz:

The right of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making shall not
be abridged. The State shall, by law, facilitate the establishment of adequate
consultation mechanisms.

To prevent the participation of the people in government from being a mere


chimera, the 1987 Constitution also gave more muscle to their right to information,
protected in the Bill of Rights, by strengthening it with the provision on
transparency in government, and by underscoring the importance of
communication. Thus, the 1987 Constitution provides in Article III, Section 7 of the
Bill of Rights, viz:

The right of the people to information on matters of public concern shall be


recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

Symmetrical to this right to information are the following provisions of the


1987 Constitution:

Article II, Section 28, Declaration of State Principles and Policies:

Subject to reasonable conditions prescribed by law, the State adopts and


implements a policy of full public disclosure of all its transactions involving public
interest.

Article XI, Section 21, National Economy and Patrimony:

Foreign loans may be incurred in accordance with law and the regulation of
the monetary authority. Information on foreign loans obtained or guaranteed by the
Government shall be made available to the public.

61
The objective of the 1987 Constitution is to attain an open and honest
government predicated on the peoples right to know. The correlative policy of
public disclosure and the peoples right to information were also expounded in the
Constitution. Going full circle, the 1987 Constitution provides for the vital role of
information in nation-building in the opening Declaration of State Principles and
Policies and in the General Provisions towards the end of the Constitution.

Article II, Section 24, provides, viz:

Sec. 24. The State recognizes the vital role of communication and
information in nation-building.

Article XVI, Section 10, General Provisions provides, viz:

Sec. 10. The State shall provide the policy environment for the full
development of Filipino capability and the emergence of communication structures
suitable to the needs and aspirations of the nation and the balanced flow of
information into, out of, and across the country, in accordance with a policy that
respects the freedom of speech and of the press. 174

Section 7 of Article III of the Constitution is relevant in strengthening the


meaningful public participation in decision-making, viz.:

SECTION 7. The right of the people to information on matters of public


concern shall be recognized. Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded
the citizen, subject to such limitations as may be provided by law.

The constitutional provision on the peoples right to information made its


maiden appearance in the Bill of Rights of the 1973 Constitution, but without the
phrase "as well as to government research data used as basis for policy
development." The phrase was added in the 1987 Constitution to stop the
government practice during Martial Law of withholding social research data from the
knowledge of the public whenever such data contradicted policies that the
government wanted to espouse.

Likewise, the framers of the 1987 Constitution expanded the scope of


"transactions" that may be accessed, to include negotiations leading to the
consummation of contracts and treaties, but subject to reasonable safeguards on
national interest. The intent of the constitutional right to information is to
adequately inform the public so that nothing vital in state affairs is kept from them.
It has been ruled that an informed citizenry with access to the diverse currents in
political, moral and artistic thought and data relative to them, and the free

62
exchange of ideas and discussion of issues thereon is vital to the democratic
government envisioned under our Constitution. The cornerstone of this republican
system of government is delegation of power by the people to the State. In this
system, governmental agencies and institutions operate within the limits of the
authority conferred by the people. Denied access to information on the inner
workings of government, the citizenry can become prey to the whims and caprices
of those to whom the power had been delegated.

The right of access to information ensures that these freedoms are not
rendered nugatory by the governments monopolizing pertinent information. For an
essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the peoples will.
Yet, this open dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only when the participants
in a discussion are aware of the issues and have access to information relating
thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to


speech and expression. But this is not to say that the right to information is merely
an adjunct of and therefore restricted in application by the exercise of the freedoms
of speech and of the press. Far from it. The right to information goes hand-in-hand
with the constitutional policies of full public disclosure and honesty in the public
service. It is meant to enhance the widening role of the citizenry in governmental
decision-making as well as in checking abuse in government.

In determining whether or not a particular information is of public concern,


there is no rigid test which can be applied. "Public concern" like "public interest" is a
term that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives,
or simply because such matters naturally arouse the interest of an ordinary citizen.
In the final analysis, it is for the courts to determine on a case by case basis
whether the matter at issue is of interest or importance, as it relates to or affects
the public.

Under both the 1973 and the 1987 Constitutions, the right to information is
self-executory. It is a public right that belongs to and can be invoked by the people.
Consequently, every citizen has the "standing" to challenge any violation of the
right and may seek its enforcement. The incorporation of this right in the
Constitution is a recognition of the fundamental role of free exchange of information
in a democracy. There can be no realistic perception by the public of the nations
problems, nor a meaningful democratic decision-making if they are denied access to

63
information of general interest. Information is needed to enable the members of
society to cope with the exigencies of the times. 175

The provision that [t]he State shall by law, facilitate the establishment of
adequate consultation mechanisms is another novel provision of the 1987
Constitution strengthening the sinews of the sovereignty of our people. 176 The
existing Constitution is an effort not only to correct the excesses of dictatorial rule
but to institutionalize the ideals of people's power upon which the Charter rests and
from which this very regime was birthed. Whereas the Marcos Constitution assured
the concentration of all essential powers of government in one man, its 1987
counterpart promises a pluralistic society and assures better opportunities for a
meaningful participation by the people in the charting of the national destiny. In
brief, the country is once more, an open society, where the majority rules, but the
rights of the minority are respected, and its voice not only tolerated, but heard. 177

Finally, the framers of the Constitution recognized that the consultation


mechanisms were already operating without the States action by law, such that the
role of the State would be mere facilitation, not necessarily creation of these
consultation mechanisms. The State provides the support, but eventually it is the
people, properly organized in their associations, who can assert the right and
pursue the objective. Penalty for failure on the part of the government to consult
could only be reflected in the ballot box and would not nullify government action. 178

POTESTAS DELEGATA NON DELEGARI POTEST

A power once delegated cannot be re-delegated. This principle, which


is expressed in the Latin maxim potestas delegata non delegari potest, is
enunciated in Section 1(8), Chapter I, Book II of the Administrative Code of
1987, viz.:

Section 1. Guiding Principles and Policies in Government. - Governmental


power shall be exercised in accordance with the following basic principles and
policies:

xxx

1. The powers expressly vested in any branch of the Government shall not
be exercised by, nor delegated to, any other branch of the Government,
except to the extent authorized by the Constitution.

There is the maxim of agency "Delegata potestas non potest delegari," which
John Locke borrowed and formulated as a dogma of political science. Chief Justice
Taft offered the following explanation of the origin and limitations of this idea as a
postulate of constitutional law: "The well-known maxim delegata potestas non
potest delefari, applicable to the law of agency in the general common law, is well
understood and has had wider application in the construction of our Federal and
State Constitutions than it has in private law. The Federal Constitution and State
Constitutions of this country divide the governmental power into three branches.

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In carrying out that constitutional division, it is a breach of the National
fundamental law if Congress gives up its legislative power and transfers it to the
President, or to the Judicial branch, or if by law it attempts to invest itself or its
members with either executive power of judicial power. This is not to say that the
three branches are not co-ordinate parts of one government and that each in the
field of its duties may not invoke government and that each in the field of its duties
may not invoke the action of the two other branches in so far as the action invoked
shall not be an assumption of the constitutional field of action of another branch. In
determining what it may do in seeking assistance from another branch, the extent
and character of that assistance must be fixed according to common sense and the
inherent necessities of the governmental coordination. 179

This principle is said to have originated with the glossators, was introduced
into English law through a misreading of Bracton, there developed as a principle of
agency, was established by Lord Coke in the English public law in decisions
forbidding the delegation of judicial power, and found its way into America as an
enlightened principle of free government. It has since become an accepted corollary
of the principle of separation of powers. 180

The theory of the separation of powers is designed by its originators to


secure action and at the same time to forestall overaction which necessarily results
from undue concentration of powers, and thereby obtain efficiency and prevent
deposition. One thing, however, is apparent in the development of the principle of
separation of powers and that is that the maxim of delegatus non potest
delegari or delegata potestas non potest delegari, attributed to Bracton but which is
also recognized in principle in the Roman Law, has been made to adapt itself to the
complexities of modern governments, giving rise to the adoption, within certain
limits, of the principle of "subordinate legislation," not only in the United States and
England but in practically all modern governments. 181

The principle of separation of powers ordains that each of the three branches
of government has exclusive cognizance of and is supreme in matters falling within
its own constitutionally allocated sphere. A logical corollary to the doctrine of
separation of powers is the principle of non-delegation of powers, as expressed in
the Latin maxim potestas delegata non delegari potest (what has been delegated
cannot be delegated). This is based on the ethical principle that such delegated
power constitutes not only a right but a duty to be performed by the delegate
through the instrumentality of his own judgment and not through the intervening
mind of another.182 A further delegation of such power would indeed constitute a
negation of the duty in violation of the trust reposed in the delegate mandated to
discharge it directly.183

The rule is that what has been delegated, cannot be delegated or as


expressed in a Latin maxim: potestas delegata non delegari potest. The recognized
exceptions to the rule are as follows: (1) Delegation of tariff powers to the President
under Section 28(2) of Article VI of the Constitution; (2) Delegation of emergency
powers to the President under Section 23(2) of Article VI of the Constitution; (3)
Delegation to the people at large; (4) Delegation to local governments; and (5)
Delegation to administrative bodies.184

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IVB. Legislative power
The legislative power is granted to the Congress pursuant to Section 1, Article
VI of the 1987 Philippine Constitution which provides:

SEC. 1. The legislative power shall be vested in the Congress of the


Philippines which shall consist of a Senate and a House of Representatives, except
to the extent reserved to the people by the provision on initiative and referendum.

A similar provision on the allocation of legislative power is also found in


Section, Book II on Distribution of Powers of Government, E.O. 292 (Administrative
Code of 1987).

SENATE OF THE PHILIPPINES

Section 2, Article VI of the 1987 Philippine Constitution provides:

Section 2. The Senate shall be composed of twenty-four Senators who shall


be elected at large by the qualified voters of the Philippines, as may be provided by
law.

In 1972, the President declared martial law and Congress was abolished. The
bloodless coup of February 22-25, 1986, brought forth a new regime and restored
the bicameral congress which is the present set-up of the Philippine Legislature.

The present Congress is actually a reincarnation of the Senate of the


Philippines under the 1940 amendment to the 1935 Constitution. As mandated by
the new Constitution, the upper chamber is composed of twenty four (24) members
elected at large, who serve a term of six (6) years. Senators cannot serve beyond
two (2) consecutive terms.185 A former Senator, however, could run again three (3)
years after the expiration of his second term and need not wait for six (6) years
before he can run again for the Senate.

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The Senate of the Philippines is the upper house of the
bicameral legislature of the Philippines, the Congress; the House of
Representatives is the lower house. The Senate is composed of 24 senators who
are elected at-large with the country as one district under plurality-at-large voting.

Senators serve 6-year tenure per terms with a maximum of 2 consecutive


terms, with half of the senators elected every three years to ensure that the Senate
is maintained as a continuous body, though staggered. When the Senate was
restored by the 1987 Constitution, the 24 senators who were elected in 1987 served
until 1992. In 1992 the candidates for the Senate obtaining the 12 highest number
of votes served until 1998, while the next 12 served until 1995. Thereafter, each
senator elected serves the full 6 years.

Aside from having its concurrence on every bill in order to be passed for the
President's signature to become a law, the Senate is the only body that can concur
with treaties, and can try impeachment cases.186

The qualifications for membership in the Senate are expressly stated in


Section 3, Art. VI of the Constitution as follows:

Section 3. No person shall be a Senator unless he is a natural-born citizen of


the Philippines and, on the day of the election, is at least thirty-five years of age,
able to read and write, a registered voter, and a resident of the Philippines for not
less than two years immediately preceding the day of the election.

With regard to the residence requirement, it was ruled that it must be the
place where one habitually resides and to which he, after absence, has the intention
of returning. The enumeration laid down by the Constitution is exclusive under the
Latin principle of expressio unius est exclusio alterius. This means that Congress
cannot anymore add additional qualifications other than those provided by the
Constitution.

It is worthy to note that the composition of the Senate is smaller in number


as compared to the House of Representatives. The members of this chamber are
elected at large by the entire electorate. The rationale for this rule intends to make
the Senate a training ground for national leaders and possibly a springboard for the
presidency. It follows also that the Senator, having a national rather than only a
district constituency, will have a broader outlook of the problems of the country,
instead of being restricted by narrow viewpoints and interests. With such
perspective, the Senate is likely to be more circumspect, or at least less impulsive,
than the House of Representatives.187

HOUSE OF REPRESENTATIVES

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The Constitution provides that the House of Representatives shall be
composed of not more than two hundred and fifty (250) members, unless otherwise
fixed by law, who shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with the number
of their respective inhabitants, and on the basis of a uniform and progressive ratio,
and those who, as provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations. The party-list
representatives shall constitute twenty per cent (20%) of the total number of
representatives including those under the party list.

A Member of the House of Representatives should be a natural-born citizen of


the Philippines and, on the day of the election, is at least twenty-five (25) years of
age, able to read and write, and, except the party list representatives, a registered
voter in the district in which he shall be elected, and a resident thereof for a period
of not less than one year immediately preceding the day of the election.

The Members of the House of Representatives shall be elected for a term of


three years, and shall serve for no more than three consecutive terms. 188

The lawmakers in the House of Representatives are of two (2) types: district
and party-list. As regards party-list representatives, the 1987 Constitution fixes the
ratio of party-list representatives to district representatives. This ratio automatically
applies whenever the number of district representatives is increased by law. for
every four district representatives, the 1987 Constitution mandates that there shall
be one party-list representative. There is no need for legislation to create an
additional party-list seat whenever four additional legislative districts are created by

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law. Section 5(2), Article VI of the 1987 Constitution automatically creates such
additional party-list seat.189

The party-list system is composed of three different groups: (1) national


parties or organizations; (2) regional parties or organizations; and (3) sectoral
parties or organizations. National and regional parties or organizations
are different from sectoral parties or organizations. National and regional parties or
organizations need not be organized along sectoral lines and need not represent
any particular sector.

In determining who may participate in the coming 13 May 2013 and


subsequent party-list elections, the COMELEC shall adhere to the following
parameters:

1. Three different groups may participate in the party-list system: (1)


national parties or organizations, (2) regional parties or organizations, and
(3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do


not need to organize along sectoral lines and do not need to represent any
"marginalized and underrepresented" sector.

3. Political parties can participate in party-list elections provided they


register under the party-list system and do not field candidates in
legislative district elections. A political party, whether major or not, that
fields candidates in legislative district elections can participate in party-list
elections only through its sectoral wing that can separately register under
the party-list system. The sectoral wing is by itself an independent
sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be "marginalized and


underrepresented" or lacking in "well-defined political constituencies." It is
enough that their principal advocacy pertains to the special interest and
concerns of their sector. The sectors that are "marginalized and
underrepresented" include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, and overseas
workers. The sectors that lack "well-defined political constituencies"
include professionals, the elderly, women, and the youth.

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5. A majority of the members of sectoral parties or organizations that
represent the "marginalized and underrepresented" must belong to the
"marginalized and underrepresented" sector they represent. Similarly, a
majority of the members of sectoral parties or organizations that lack
"well-defined political constituencies" must belong to the sector they
represent. The nominees of sectoral parties or organizations that
represent the "marginalized and underrepresented," or that represent
those who lack "well-defined political constituencies," either must belong
to their respective sectors, or must have a track record of advocacy for
their respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or
organizations.

6. National, regional, and sectoral parties or organizations shall not be


disqualified if some of their nominees are disqualified, provided that they
have at least one nominee who remains qualified. 190

LEGISLATIVE POWER

Father Bernas explains that "in republican systems, there are generally two
kinds of legislative power, original and derivative. Original legislative power is
possessed by the sovereign people. Derivative legislative power is that which has
been delegated by the sovereign people to legislative bodies and is subordinate to
the original power of the people."191

By definition, legislative power is the authority, under the Constitution, to


make laws, and to alter and repeal them. The Constitution, as the will of the people
in their original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines. The grant of legislative power to Congress is broad,
general and comprehensive. The legislative body possesses plenary power for all
purposes of civil government. Any power, deemed to be legislative by usage and
tradition, is necessarily possessed by Congress, unless the Constitution has lodged
it elsewhere. In fine, except as limited by the Constitution, either expressly or

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impliedly, legislative power embraces all subjects and extends to matters of general
concern or common interest.192

It is a basic precept that among the implied substantive limitations on the


legislative powers is the prohibition against the passage of irrepealable laws.
Irrepealable laws deprive succeeding legislatures of the fundamental best
senses carte blanche in crafting laws appropriate to the operative milieu. Their
allowance promotes an unhealthy stasis in the legislative front and dissuades
dynamic democratic impetus that may be responsive to the times. To be sure, there
are no irrepealable laws just as there are no irrepealable Constitutions. Change is
the predicate of progress and we should not fear change."

Moreover, it would be noxious anathema to democratic principles for a


legislative body to have the ability to bind the actions of future legislative body,
considering that both assemblies are regarded with equal footing, exercising as they
do the same plenary powers. Perpetual infallibility is not one of the attributes
desired in a legislative body, and a legislature which attempts to forestall future
amendments or repeals of its enactments labors under delusions of omniscience. 193

A state legislature has a plenary law-making power over all subjects, whether
pertaining to persons or things, within its territorial jurisdiction, either to introduce
new laws or repeal the old, unless prohibited expressly or by implication by the
federal constitution or limited or restrained by its own. It cannot bind itself or its
successors by enacting irrepealable laws except when so restrained. Every
legislative body may modify or abolish the acts passed by itself or its predecessors.
This power of repeal may be exercised at the same session at which the original act
was passed; and even while a bill is in its progress and before it becomes a law. This
legislature cannot bind a future legislature to a particular mode of repeal. It cannot
declare in advance the intent of subsequent legislatures or the effect of subsequent
legislation upon existing statutes.194

Our Constitution creates a Congress consisting of two chambers. Thus, in


Article VI, Section 1, the Constitution provides the following:

Section1. The legislative power shall be vested in the Congress of the


Philippines which shall consist of a Senate and a House of Representatives x x x.

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Senators are "elected at large by the qualified voters of the Philippines".
Members of the House of Representatives, on the other hand, are elected by
legislative districts or through the party list system. The term of a Senator is
different from that of a Member of the House of Representatives. Therefore, the
Senate and the House of Representatives while component parts of the Congress
are not the same in terms of their representation. The very rationale of a bicameral
system is to have the Senators represent a national constituency. Representatives
of the House of Representatives, on the other hand, are dominantly from legislative
districts except for one fifth which are from the party list system. Congress,
therefore, is the Senate and the House of Representatives. Congress does not exist
separate from the Senate and the House of Representatives. 195

Legislative power (or the power to propose, enact, amend and repeal laws) is
vested in Congress which consists of two chambers, the Senate and the House of
Representatives. A valid exercise of legislative power requires the act of both
chambers. Corollarily, it can be exercised neither solely by one of the two chambers
nor by a committee of either or both chambers. 196

DOCTRINE OF NON-DELEGABILITY OF LEGISLATIVE POWER


The Constitution expressly vests legislative power in the Congress of the
Philippines, consisting of a Senate and a House of Representatives. Traditionally, the
delegation of Congress of its legislative powers had been frowned upon. "A logical
corollary to the doctrine of separation of powers is the principle of non-delegation of
powers, as expressed in the Latin maxim potestas delegata non delegare potest
(what has been delegated cannot be delegated).

However, the strict application of the non-delegation doctrine has, in recent


times, been relaxed, if not minimized altogether, particularly in the context of
regulatory jurisdiction of administrative agencies. In every industrialized nation,
administrative agencies, which are generally part of the executive branch, have
been granted considerable lawmaking power. "Given the volume and variety of
interactions in today's society, it is doubtful if the legislature can promulgate laws
that will deal adequately with and respond promptly to the minutiae of everyday
life. Hence, the need to delegate to administrative bodiesthe principal agencies
tasked to execute laws in their specialized fieldsthe authority to promulgate rules
and regulations to implement a given statute and effectuate its policies." 197

The legislative power has been described generally as the power to make,
alter, and repeal laws. The authority to amend, change, or modify a law is thus part
of such legislative power. It is the peculiar province of the legislature to prescribe
general rules for the government of society. However, the legislature cannot foresee
every contingency involved in a particular problem that it seeks to address. Thus, it

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has become customary for it to delegate to instrumentalities of the executive
department, known as administrative agencies, the power to make rules and
regulations. This is because statutes are generally couched in general terms which
express the policies, purposes, objectives, remedies and sanctions intended by the
legislature. The details and manner of carrying out the law are left to the
administrative agency charged with its implementation. In this sense, rules and
regulations promulgated by an administrative agency are the product of a
delegated power to create new or additional legal provisions that have the effect of
law. Hence, in general, rules and regulations issued by an administrative agency,
pursuant to the authority conferred upon it by law, have the force and effect, or
partake of the nature, of a statute.198

There has long been a trend towards the delegation of powers, especially of
legislative powers, even if not expressly permitted by the Constitution. Delegation
of legislative powers is permissible unless the delegation amounts to a surrender or
abdication of powers. The latest in our jurisprudence indicates that delegation of
legislative power has become the rule and its non-delegation the exception. The
reason is the increasing complexity of modern life and many technical fields of
governmental functions as in matters pertaining to tax exemptions. This is coupled
by the growing inability of the legislature to cope directly with the many problems
demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be expected
reasonably to comprehend. Specialization even in legislation has become necessary.
To many of the problems attendant upon present day undertakings, the legislature
may not have the competence, let alone the interest and the time, to provide the
required direct and efficacious, not to say specific solutions. 199

In the face of the increasing complexity of modern life, delegation of


legislative power to various specialized administrative agencies is allowed as an
exception to this principle. Given the volume and variety of interactions in todays
society, it is doubtful if the legislature can promulgate laws that will deal adequately
with and respond promptly to the minutiae of everyday life. Hence, the need to
delegate to administrative bodies the principal agencies tasked to execute laws
in their specialized fields the authority to promulgate rules and regulations to
implement a given statute and effectuate its policies. All that is required for the
valid exercise of this power of subordinate legislation is that the regulation be
germane to the objects and purposes of the law and that the regulation be not in
contradiction to, but in conformity with, the standards prescribed by the law. These
requirements are denominated as the completeness test and the sufficient standard
test.200

Although Congress may delegate to another branch of the Government the


power to fill details in the execution, enforcement or administration of a law, it is
essential, to forestall a violation of the principle of separation of powers, that said

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law: (a) be complete in itself it must set forth therein the policy to be executed,
carried out or implemented by the delegate and (b) to fix standard the limits of
which are sufficiently determinate or determinable to which the delegate must
conform in the performance of his functions. Indeed, without a statutory declaration
of policy, which is the essence of every law, and, without the aforementioned
standard, there would be no means to determine, with reasonable certainty,
whether the delegate has acted within or beyond the scope of his authority. Hence,
he could thereby arrogate upon himself the power, not only to make the law, but,
also and this is worse to unmake it, by adopting measures inconsistent with
the end sought to be attained by the Act of Congress, thus nullifying the principle of
separation of powers and the system of checks and balances, and, consequently,
undermining the very foundation of our republican system. 201

For a valid delegation of power, it is essential that the law delegating the
power must be (1) complete in itself, that is it must set forth the policy to be
executed by the delegate and (2) it must fix a standard limits of which are
sufficiently determinate or determinable to which the delegate must
conform.202 Thus, Two tests determine the validity of delegation of legislative power:
(1) the completeness test and (2) the sufficient standard test. A law is complete
when it sets forth therein the policy to be executed, carried out or implemented by
the delegate. It lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegates
authority and prevent the delegation from running riot. To be sufficient, the
standard must specify the limits of the delegates authority, announce the
legislative policy and identify the conditions under which it is to be implemented. 203

To avoid the taint of unlawful delegation, there must be a standard, which


implies at the very least that the legislature itself determines matters of principle
and lays down fundamental policy. Otherwise, the charge of complete abdication
may be hard to repel. A standard thus defines legislative policy, marks its limits,
maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. It is the
criterion by which legislative purpose may be carried out. Thereafter, the executive
or administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations. 204

The rules and regulations implementing the law are designed to fill in the
details or to make explicit what is general, which otherwise cannot all be
incorporated in the provision of the law. Such rules and regulations, when
promulgated in pursuance of the procedure or authority conferred upon the
administrative agency by law, "deserve to be given weight and respect by the
courts in view of the rule-making authority given to those who formulate them and
their specific expertise in their respective fields." To be valid, a rule or regulation
must be within the scope of statutory authority or standard granted by the

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legislature. Specifically, the regulation must (1) be germane to the object and
purpose of the law; (2) not contradict, but conform to, the standards the law
prescribes; and (3) be issued for the sole purpose of carrying into effect the general
provisions of our laws.205

The principle of separation of powers ordains that each of the three great
branches of government has exclusive cognizance of and is supreme in matters
falling within its own constitutionally allocated sphere. A logical corollary to the
doctrine of separation of powers is the principle of non-delegation of powers, as
expressed in the Latin maxim: potestas delegata non delegari potest which means
"what has been delegated, cannot be delegated." This doctrine is based on the
ethical principle that such as delegated power constitutes not only a right but a
duty to be performed by the delegate through the instrumentality of his own
judgment and not through the intervening mind of another.

With respect to the Legislature, Section 1 of Article VI of the Constitution


provides that "the Legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives." The
powers which Congress is prohibited from delegating are those which are strictly, or
inherently and exclusively, legislative. Purely legislative power, which can never be
delegated, has been described as the authority to make a complete lawcomplete
as to the time when it shall take effect and as to whom it shall be applicableand to
determine the expediency of its enactment. Thus, the rule is that in order that a
court may be justified in holding a statute unconstitutional as a delegation of
legislative power, it must appear that the power involved is purely legislative in
naturethat is, one appertaining exclusively to the legislative department. It is the
nature of the power, and not the liability of its use or the manner of its exercise,
which determines the validity of its delegation.

Nonetheless, the general rule barring delegation of legislative powers is


subject to the following recognized limitations or exceptions: (1) Delegation of tariff
powers to the President under Section 28 (2) of Article VI of the Constitution; (2)
Delegation of emergency powers to the President under Section 23 (2) of Article VI
of the Constitution; (3) Delegation to the people at large; (4) Delegation to local
governments; and (5) Delegation to administrative bodies.

In every case of permissible delegation, there must be a showing that the


delegation itself is valid. It is valid only if the law (a) is complete in itself, setting
forth therein the policy to be executed, carried out, or implemented by the
delegate; and (b) fixes a standard the limits of which are sufficiently determinate
and determinable to which the delegate must conform in the performance of his
functions.206 Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the
only thing he will have to do is to enforce it. The second test mandates adequate

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guidelines or limitations in the law to determine the boundaries of the delegate's
authority and prevent the delegation from running riot. 207

INITATIVE AND REFERENDUM

Our constitutional odyssey shows that up until 1987, our people have not
directly exercised legislative power, both the constituent power to amend or revise
the Constitution or the power to enact ordinary laws. Section 1, Article VI of the
1935 Constitution delegated legislative power to Congress, thus "the legislative
power shall be vested in a Congress of the Philippines, which shall consist of a
Senate and a House of Representatives." Similarly, Section 1, Article VIII of the 1973
Constitution, as amended, provided that "the Legislative power shall be vested in a
Batasang Pambansa.

Implicit in the set up was the trust of the people in Congress to enact laws for
their benefit. So total was their trust that the people did not reserve for themselves
the same power to make or repeal laws. The omission was to prove unfortunate. In
the 70's and until the EDSA revolution, the legislature failed the expectations of the
people especially when former President Marcos wielded lawmaking powers under
Amendment No. 6 of the 1973 Constitution. Laws which could have bridled the
nation's downslide from democracy to authoritarianism to anarchy never saw the
light of day.

In February 1986, the people took a direct hand in the determination of their
destiny. They toppled down the government of former President Marcos in a historic
bloodless revolution. The Constitution was rewritten to embody the lessons of their
sad experience. One of the lessons is the folly of completely surrendering the power
to make laws to the legislature. The result, in the perceptive words of Father Bernas,
is that the new Constitution became "less trusting of public officials than the
American Constitution."

For the first time in 1987, the system of people's initiative was thus installed
in our fundamental law. To be sure, it was a late awakening. As early as 1898, the
state of South Dakota has adopted initiative and referendum in its constitution and
many states have followed suit. In any event, the framers of our 1987 Constitution
realized the value of initiative and referendum as an ultimate weapon of the people
to negate government malfeasance and misfeasance and they put in place an
overarching system. Thus, thru an initiative, the people were given the power to
amend the Constitution itself. Section 2 of Art. XVII provides: "Amendments to this
Constitution may likewise be directly proposed by the people through initiative upon
a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of

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the registered voters therein." Likewise, thru an initiative, the people were also
endowed with the power to enact or reject any act or law by Congress or local
legislative body. Sections 1 and 32 of Article VI provide:

Sec. 1. The legislative power shall be vested in the Congress of the


Philippines which shall consist of a Senate and a House of Representatives except
to the extent reserved to the people by the provisions on initiative and referendum.

xxx

Sec. 32. The Congress shall, as early as possible, provide for a system of
initiative and referendum, and the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject any act or law or part thereof
passed by the Congress or local legislative body after the registration of a petition
therefor signed by at least ten per centum of the total number of registered voters,
of which every legislative district must be represented by at least three per
centum of the registered voters thereto.

The COMELEC was also empowered to enforce and administer all laws and
regulations relative to the conduct of an initiative and referendum. Worthwhile
noting is the scope of coverage of an initiative or referendum as delineated by
Section 32 Art. VI of the Constitutionany act or law passed by Congress or local
legislative body.

In due time, Congress responded to the mandate of the Constitution. It


enacted laws to put into operation the constitutionalized concept of initiative and
referendum. On August 4, 1989, it approved Republic Act No. 6735 entitled "An Act
Providing for a System of Initiative and Referendum and Appropriating Funds
Therefor." Liberally borrowed from American laws, R.A. No. 6735, among others,
spelled out the requirements for the exercise of the power of initiative and
referendum, the conduct of national initiative and referendum; procedure of local
initiative and referendum; and their limitations. Then came Republic Act No. 7160,
otherwise known as The Local Government Code of 1991. Chapter 2, Title XI, Book
I of the Code governed the conduct of local initiative and referendum. 208

In its definition of terms, Republic Act No. 6735 defines initiative as "the
power of the people to propose amendments to the constitution or to propose and
enact legislations through an election called for the purpose". There are three (3)
systems of initiative, namely: (1) Initiative on the Constitution which refers to a
petition proposing amendments to the Constitution; (2) Initiative on Statutes which
refers to a petition proposing to enact a national legislation; and (3) Initiative
on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance. 209

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On the other hand, "referendum" is the power of the electorate to approve or
reject a legislation through an election called for the purpose. It may be of two
classes, namely: (1) Referendum on statutes which refers to a petition to approve or
reject an act or law, or part thereof, passed by Congress; and (2) Referendum on
local law which refers to a petition to approve or reject a law, resolution or
ordinance enacted by regional assemblies and local legislative bodies. 210

IVB1. Inhibitions against Members of Congress

The inhibition against holding dual or multiple offices against Members of


Congress is provided in Section 13, Article VI of the 1987 Philippine Constitution,
which reads:

Section13. No Senator or Member of the House of Representatives may hold


any other office or employment in the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries, during his term without forfeiting his seat. Neither shall he be
appointed to any office which may have been created or the emoluments thereof
increased during the term for which he was elected.

Anent the prohibitions against lawyer-legislators from appearing in any


tribunal and the possession of financial or pecuniary interest, Section 14, Article VI
of the 1987 Philippine Constitution provides:

Section 14. No Senator or Member of the House of Representatives may


personally appear as counsel before any court of justice or before the Electoral
Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly
or indirectly, be interested financially in any contract with, or in any franchise or
special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation,
or its subsidiary, during his term of office. He shall not intervene in any matter
before any office of the Government for his pecuniary benefit or where he may be
called upon to act on account of his office.

Apart from the constitutional restrictions, the Administrative Code of 1987, in


Section 3, Chapter 2, Book II on Distribution of Powers Government, reinforces such
restrictions.

In Liban v. Gordon,211 the issue involved is whether or not Sen. Gordon


forfeited his seat in the Senate when he concurrently hold the position of Chairman
of the Philippine National Red Cross (PNRC). It was ruled that PNRC, although
created by special law, is not a government-owned or controlled corporation and
that the prohibition under Section 13, Article VI of the Constitution does not apply.
The vast majority of the thousands of PNRC members are private individuals,
including students. The office of the PNRC Chairman is not a government office or
an office in a government-owned or controlled corporation for purposes of the

78
prohibition in Section 13, Article VI of the 1987 Constitution. Hence, Sen. Gordon did
not forfeit his seat in the Senate.

Another prohibition against the Members of Congress is their personal


appearance as counsel before any tribunal. The prohibition against lawyer-
legislators cannot be circumvented under the guise of appearing in intervention in
ones behalf. In Puyat v. de Guzman, 212 the issue involved is whether or not
Assemblyman Fernandez, then a member of the Interim Batasang Pambansa, in
intervening in the SEC Case, is, in effect, appearing as counsel, albeit indirectly,
before an administrative body in contravention of the constitutional provision.

The Supreme Court ruled that there has been an indirect appearance as
counsel before an administrative body" and that is a circumvention of the
constitutional prohibition. The "intervention" was an afterthought to enable him to
appear actively in the proceedings in some other capacity. To believe the avowed
purpose, that is, to enable him eventually to vote and to be elected as Director in
the event of an unfavorable outcome of the SEC Case would be pure naivet. He
would still appear as counsel indirectly.

A ruling upholding the "intervention" would make the constitutional provision


ineffective. All an Assemblyman need do, if he wants to influence an administrative
body is to acquire a minimal participation in the "interest" of the client and then
"intervene" in the proceedings. That which the Constitution directly prohibits may
not be done by indirection or by a general legislative act which is intended to
accomplish the objects specifically or impliedly prohibited. In brief, we hold that the
intervention of Assemblyman Fernandez in SEC. No. 1747 falls within the ambit of
the prohibition contained in Section 11, Article VIII of the Constitution.

Finally, anent the prohibition against conflict of interest, in Belgica v.


Executive Secretary,213 one of the issues involved is whether or not the
Congressional Pork Barrel "gives each legislator a direct, financial interest in the
smooth, speedy passing of the yearly budget" which turns them "from fiscalizers"
into "financially-interested partners."

It was ruled that certain features embedded in some forms of Congressional


Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional
oversight. The fact that individual legislators are given post-enactment roles in the
implementation of the budget makes it difficult for them to become disinterested
"observers" when scrutinizing, investigating or monitoring the implementation of
the appropriation law. To a certain extent, the conduct of oversight would be tainted
as said legislators, who are vested with post-enactment authority, would, in effect,
be checking on activities in which they themselves participate. Also, it must be
pointed out that this very same concept of post-enactment authorization runs afoul
of Section 14, Article VI of the 1987 Constitution. Clearly, allowing legislators to
intervene in the various phases of project implementationa matter before another
office of government renders them susceptible to taking undue advantage of their
own office.

IVB2. Electoral Tribunal

79
Section 17, Article VI of the 1987 Philippine Constitution clearly spells out
SETs and HRET's jurisdiction:

Section 17. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or the House of Representatives, as the case may be, who
shall be chosen on the basis of proportional representation from the political parties
and the parties or organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

A similar provision on the conferment of jurisdiction upon the two (2)


electoral tribunals is also found in Section 4, Chapter 2, Book II of the Administrative
Code of 1987.

The use of the word "sole" in both Section 17 of the 1987 Constitution
underscores the exclusive jurisdiction of the House Electoral Tribunal as judge of
contests relating to the election, returns and qualifications of the members of the
House of Representatives. The tribunal was created to function as a non-partisan
court although two-thirds of its members are politicians. It is a non-political body in
a sea of politicians.214

The phrase "election, returns and qualifications" refers to all matters affecting
the validity of the contestees title. 215 In particular, the term "election" refers to the
conduct of the polls, including the listing of voters, the holding of the electoral
campaign, and the casting and counting of the votes; "returns" refers to the
canvass of the returns and the proclamation of the winners, including questions
concerning the composition of the board of canvassers and the authenticity of the
election returns; and "qualifications" refers to matters that could be raised in a quo
warranto proceeding against the proclaimed winner, such as his disloyalty or
ineligibility or the inadequacy of his CoC. 216

80
The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate
Electoral Tribunal (SET) and House of Representatives Electoral Tribunal (HRET) are
electoral tribunals, each specifically and exclusively clothed with jurisdiction by the
Constitution to act respectively as "sole judge of all contests relating to the election,
returns, and qualifications" of the President and Vice-President, Senators, and
Representatives. In a litany of cases, this Court has long recognized that these
electoral tribunals exercise jurisdiction over election contests only after a candidate
has already been proclaimed winner in an election. 217

The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the House of
Representatives, the COMELECs jurisdiction over election contests relating to his
election, returns, and qualifications ends, and the HRETs own jurisdiction begins . It
follows then that the proclamation of a winning candidate divests the COMELEC of
its jurisdiction over matters pending before it at the time of the proclamation. The
party questioning his qualification should now present his case in a proper
proceeding before the HRET, the constitutionally mandated tribunal to hear and
decide a case involving a Member of the House of Representatives with respect to
the latters election, returns and qualifications. 218

The Electoral Tribunals of the Senate and the House were created by the
Constitution as special tribunals to be the sole judge of all contests relating to
election returns and qualifications of members of the legislative houses. 219 Since the
Constitution has constituted the Tribunals as sole judge of legislative election
contests, their decisions on such controversies are not subject to appeal to the
Supreme Court.220

Well-settled is the principle that the judgments of the HRET are beyond
judicial interference. The only instance where this Court may intervene in the
exercise of its so-called extraordinary jurisdiction is upon a determination that the
decision or resolution of the HRET was rendered without or in excess of its
jurisdiction, or with grave abuse of discretion or upon a clear showing of such
arbitrary and improvident use of its power to constitute a denial of due process of
law, or upon a demonstration of a very clear unmitigated error, manifestly
constituting such grave abuse of discretion that there has to be a remedy for such
abuse.221

81
IVB3. Legislative Investigations

Section 21, Article VI of the 1987 Philippines Constitution expressly


recognizes the power of both houses of Congress to conduct inquiries in aid of
legislation, thus:

Section 21. The Senate or the House of Representatives or any of its


respective committees may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure. The rights of persons appearing in, or
affected by, such inquiries shall be respected.

The same power of inquiry in aid of legislation is also found in Section 6, Book
I, E.O. 292 (Administrative Code of 1987).

The Congress power of inquiry is expressly recognized in Section 21 of Article


VI of the Constitution. The power of inquirywith process to enforce itis an essential
and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite informationwhich is not
infrequently truerecourse must be had to others who do possess it. 222

This power of inquiry is broad enough to cover officials of the executive


branch. The power of inquiry is co-extensive with the power to legislate. The power
of inquiry, "with process to enforce it," is grounded on the necessity of information
in the legislative process. If the information possessed by executive officials on the
operation of their offices is necessary for wise legislation on that subject, by parity
of reasoning, Congress has the right to that information and the power to compel
the disclosure thereof.223

The inquiry itself might not properly be in aid of legislation, and thus beyond
the constitutional power of Congress. Parenthetically, one possible way for Congress

82
to avoid such a result is to indicate in its invitations to the public officials concerned,
or to any person for that matter, the possible needed statute which prompted the
need for the inquiry. Given such statement in its invitations, along with the usual
indication of the subject of inquiry and the questions relative to and in furtherance
thereof, there would be less room for speculation on the part of the person invited
on whether the inquiry is in aid of legislation. 224

Even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric of
"executive privilege." Executive privilege has been defined as "the power of the
Government to withhold information from the public, the courts, and the Congress.
The rule of confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the
Constitution.

Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards
for Public Officials and Employees provides that Public Officials and Employees shall
not use or divulge confidential or classified information officially known to them by
reason of their office and not made available to the public to prejudice the public
interest.

Executive privilege covers all confidential or classified information between


the President and the public officers covered by this executive order, including: (1)
Conversations and correspondence between the President and the public official
covered by this executive order; (2) Military, diplomatic and other national security
matters which in the interest of national security should not be divulged; (3)
Information between inter-government agencies prior to the conclusion of treaties
and executive agreements; (4) Discussion in close-door Cabinet meetings; and (5)
Matters affecting national security and public order.

Congress undoubtedly has a right to information from the executive branch


whenever it is sought in aid of legislation. If the executive branch withholds such
information on the ground that it is privileged, it must so assert it and state the
reason therefor and why it must be respected. 225

Section 21, Article VI likewise establishes crucial safeguards that proscribe


the legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or Houses duly published rules of procedure,

83
necessarily implying the constitutional infirmity of an inquiry conducted without
duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in the Bill of Rights. 226

The power of legislative inquiry is intimately connected with the express


power of legislation and does not even have to be expressly granted. Nonetheless,
the drafters of the Constitution saw it fit to include a provision that would clearly
spell out this power. The incorporation of the rule on legislative inquiry in the
Constitution, however, was not intended to authorize the conduct of such inquiries
but to limit them and to forestall possible abuse. The reason is that in the past this
power was much abused by some legislators who used it for illegitimate ends or to
browbeat or intimidate witnesses, usually for grandstanding purposes only. There
were also times when the subject of the inquiry was purely private in nature and
therefore outside the scope of the powers of the Congress.

To correct these excesses, it is now provided that the legislative inquiry must
be in aid of legislation, whether it be under consideration already or still to be
drafted. Furthermore, the conduct of the investigation must be strictly in conformity
with the rules of procedure that must have been published in advance for the
information and protection of the witnesses. Section 21, Article VI regulates the
power of Congress to conduct legislative investigations by providing a three-fold
limitation: (1) the power must be exercised in aid of legislation; (2) it must be in
accordance with the duly published rules of procedure and (3) the rights of persons
appearing in or affected by such inquiries shall be respected.

The first limitation ensures that no person can be punished for contumacy as
a witness unless his testimony is required in a matter which Congress or any of its
committees has jurisdiction to inquire into. This is an essential element of the
jurisdiction of the legislative body. The second limitation means that either House
of Congress or any of its committees must follow its duly published rules of
procedure. Violation of the rules of procedure by Congress or any of its committees
contravenes due process. The third limitation entails that legislative investigation is
circumscribed by the Constitution, particularly by the Bill of Rights. As such, this
limitation does not create a new constitutional right. It simply underscores
fundamental rights such as the rights against self-incrimination, unreasonable
searches and seizures and to demand that Congress observe its own rules as part of
due process.227

84
The power of both houses of Congress to conduct inquiries in aid of
legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by
the afore-quoted provision of the Constitution. Thus, as provided therein, the
investigation must be "in aid of legislation in accordance with its duly published
rules of procedure" and that "the rights of persons appearing in or affected by such
inquiries shall be respected." It follows then that the rights of persons under the Bill
of Rights must be respected, including the right to due process and the right not to
be compelled to testify against one's self.228

The power of congress to conduct investigations is inherent in the legislative


process. That power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly needed statutes. It
includes surveys of defects in our social, economic, or political system for the
purpose of enabling Congress to remedy them. It comprehends probes into
departments of government to expose corruption, inefficiency or waste. But broad
as it is this power of inquiry, it is not unlimited. There is no general authority to
expose the private affairs of individuals without justification in terms of the
functions of congress. Nor is the Congress a law enforcement or trial agency. No
inquiry is an end in itself; it must be related to and in furtherance of a legitimate
task of Congress. Investigations conducted solely for the personal aggrandizement
of the investigators or to "punish" those investigated are indefensible. 229

IVC. Executive Power

The 1987 Philippine Constitution, in Section 1, Article VII on Executive


Department, expressly provides:

Section1. The executive power shall be vested in the President of the


Philippines.

The vesting of the executive power upon the President is statutorily echoed in
Section 11, Chapter 3, Book of the Administrative Code of 1987.
There is one repository of executive powers, and that is the President of the
Republic. This means that when Section 1, Article VII of the Constitution speaks of
executive power, it is granted to the President and no one else. With reference to
the Executive Department of the government, there is one purpose which is crystal-
clear and is readily visible without the projection of judicial searchlight, and that is
the establishment of a single, not plural, Executive. 230

85
The Constitution, admittedly, does not contain an express definition of the
executive power reposed in the Chief Executive: it merely contains an enumeration
of the powers the President can exercise. Broadly understood, however, executive
power is the power to enforce and administer the laws of the land; it is the power to
carry the laws into practical operation and to enforce their due observance.

As the country's Chief Executive, the President represents the whole


government; he carries the obligation to ensure the enforcement of all laws by the
officials and employees of his department. This characterization of executive power
is plainly evident from the presidential oath of office which states:

I do solemnly swear [or affirm] that I will faithfully and conscientiously fulfill
my duties as President [or Vice-President or Acting President] of the Philippines,
preserve and defend its Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. So help me God. x x x 231

As stated above, the Constitution provides that "[t]he executive power shall
be vested in the President of the Philippines." However, it does not define what is
meant by executive power" although in the same article it touches on the exercise
of certain powers by the President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the laws, the appointing
power, the powers under the commander-in-chief clause, the power to grant
reprieves, commutations and pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or guarantee foreign loans, the
power to enter into treaties or international agreements, the power to submit the
budget to Congress, and the power to address Congress.

The inevitable question then arises: by enumerating certain powers of the


President did the framers of the Constitution intend that the President shall exercise
those specific powers and no other? Are these se enumerated powers the breadth
and scope of "executive power"?

It would not be accurate to state that "executive power" is the power to


enforce the laws, for the President is head of state as well as head of government
and whatever powers inhere in such positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision of
law, e.g., his power over the country's foreign relations.

Although the 1987 Constitution imposes limitations on the exercise of


specific powers of the President, it maintains intact what is traditionally considered
as within the scope of "executive power." Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific
powers so enumerated. It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be executive. 232

86
A perusal of our Constitution will show that extensive authority over the
public service is granted the President of the Philippines. Article VII of the
Constitution begins in its section 1 with the declaration the "The Executive power
shall be vested in a President of the Philippines." All executive authority is thus
vested in him, and upon him devolves the constitutional duty of seeing that the
laws are "faithfully executed." In the fulfillment of this duty which he cannot evade,
he is granted specific and express powers and functions. In addition to these
specific and express powers and functions, he may also exercise those necessarily
implied and included in them.

The National Assembly may not enact laws which either expressly or
impliedly diminish the authority conferred upon the President of the Constitution.
The Constitution provides that the President "shall have control of all the executive
departments, bureaus, and offices" and shall "exercise general supervision over all
location governments as may be provided by law." This power of control and
supervision is an important constitutional grant. 233

IVC1. Office of the President

March 22, 1897 was declared as the date of the creation of Office of the
President (OP) by virtue of Administrative Order No. 322, s. 1997, adopting the
National Historical Institute Boards stand. This was done based on the position
papers submitted by the officials of the Department of History of the University of
the Philippines, and the Board of National Historical Institute, after exhaustive
deliberations and consultations during its four successive meetings held in
Malacanang from May 5, 1997 to June 25, 1997.

The decision established that the Office of the President came into being
during the Tejeros Convention on March 22, 1897, when General Emilio Aguinaldo y
Famy was elected President of the Philippine Revolutionary Government. 234

The President of the Philippines is the head of state and head of


government of the Philippines. The President leads the Executive Branch of the
Philippine government and is the Commander-in-Chief of the Armed Forces of the
Philippines.235

87
Section 2, Article VII of the 1987 Philippine Constitution prescribes the
qualifications of a candidate for President, viz.:

Section 2. No person may be elected President unless he is a natural-born


citizen of the Philippines, a registered voter, able to read and write, at least forty
years of age on the day of the election, and a resident of the Philippines for at least
ten years immediately preceding such election.

Subject to the provisions on nuisance candidates, a candidate for President


needs only to meet the qualifications laid down in Section 2, Article VII of the
Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and
(5) residency. Beyond these stated qualification requirements, candidates for
President need not possess any other qualification to run for President and be voted
upon and elected as President. The Congress cannot validly amend or otherwise
modify these qualification standards, as it cannot disregard, evade, or weaken the
force of a constitutional mandate, or alter or enlarge the Constitution. 236

The President is elected by popular vote to a term of six (6) years. The
President then appoints and may fire his/her cabinet members whom he/she
presides over. The executive seat of government is administered officially from
Malacanang Palacethe official residence of the Presidentin the capital City of
Manila.

The President may no longer run for re-election, unless he/she becomes
President through constitutional succession and has served for no more than four
(4) years as President.237

IVC2. Office of the Vice-President

The Office of the Vice-President (OVP) was organized pursuant to


Proclamation No. 3 dated March 1986 and Article VII of the 1987 Constitution and
Executive Order No. 240 dated July 24, 1987. The OVP provides staff assistance to

88
the Vice-President (VP) in the performance of his tasks/functions as the second
highest official in the Executive Branch, and also provides the necessary technical
and support services to the Vice-President to enable him to perform his functions
effectively and efficiently.

The functions are classified into:

1. Executive functionThe-Vice President is mandated to ensure that laws


are faithfully executed.

2. Ceremonial functionThe-Vice President performs ceremonial functions


through meetings with representatives of foreign governments. He
represents the Philippine government in official gatherings and receives
foreign dignitaries, ambassadors, foreign investors, and other foreign
officials.

3. Advisory functionAs a member of the Cabinet, the Vice President


participates in the formulation of policies in the implementation of
government programs and projects

4. Constituency functionThe Vice-President performs constituency function


through consultations with local executives, lends support to their
programs and extends financial assistance to them. The interactions with
his constituents serve to provide the Vice President a firsthand knowledge
of their problems. His visits to the countryside enable the Vice-President to
formulate realistic policies that promote local concerns and make
appropriate actions and recommendations to concerned agencies.

5. Administrative functionAs head of the second highest office in the land,


the VP performs administrative function. As administrator, the VP sees to
it that the resources of the OVP are efficiently used to attain the goals and
objectives of the office.238

The Vice President is the second highest national official elected by the
people. The Vice President should possess the same qualifications as the President.
He is elected in the same manner and for the same term as the President. He may
be appointed by the President as a member of his Cabinet or as head of an
executive department. Such an appointment requires no confirmation from the
Commission on Appointments of Congress.

The office is very important because the Vice President becomes the
President when this position becomes vacant either due to resignation, removal or
impeachment, incapacitation, or death. The Vice President cannot serve for more
than two successive terms.239

89
IVC3. Vacancies

Section 7, Article VII of the 1987 Philippine Constitution provides the rules on
succession if the vacancy occurs before the beginning of the term of the President,
viz.;

Section 7. The President-elect and the Vice President-elect shall assume


office at the beginning of their terms.

If the President-elect fails to qualify, the Vice President-elect shall act as


President until the President-elect shall have qualified.

If a President shall not have been chosen, the Vice President-elect shall act
as President until a President shall have been chosen and qualified.

If at the beginning of the term of the President, the President-elect shall have
died or shall have become permanently disabled, the Vice President-elect shall
become President.

Where no President and Vice-President shall have been chosen or shall have
qualified, or where both shall have died or become permanently disabled, the
President of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall act as President until a President or a Vice-President shall
have been chosen and qualified.

The Congress shall, by law, provide for the manner in which one who is to act
as President shall be selected until a President or a Vice-President shall have
qualified, in case of death, permanent disability, or inability of the officials
mentioned in the next preceding paragraph.

However, when the vacancy occurs during the incumbency of the President,
Section 8, Article VII of the 1987 Philippine Constitution provides the rules on
succession, viz.:

Section 8. In case of death, permanent disability, removal from office, or


resignation of the President, the Vice-President shall become the President to serve
the unexpired term. In case of death, permanent disability, removal from office, or
resignation of both the President and Vice-President, the President of the Senate or,
in case of his inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been elected and
qualified.
The Congress shall, by law, provide who shall serve as President in case of
death, permanent disability, or resignation of the Acting President. He shall serve
until the President or the Vice-President shall have been elected and qualified, and
be subject to the same restrictions of powers and disqualifications as the Acting
President.

The above quoted constitutional provision on the rules on succession in the


Office of the President is also found in Section 13, Chapter 3, Book II of the
Administrative Code of 1987.

90
When the vacancy occurs as a result of the inability of the incumbent
President to discharge its powers and duties, Section 11, Article VII of the Philippine
Constitution is in order. It provides:

SEC. 11. Whenever the President transmits to the President of the Senate
and the Speaker of the House of Representatives his written declaration that he is
unable to discharge the powers and duties of his office, and until he transmits to
them a written declaration to the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the


President of the Senate and to the Speaker of the House of Representatives their
written declaration that the President is unable to discharge the powers and duties
of his office, the Vice-President shall immediately assume the powers and duties of
the office as Acting President.

xxx

As regards the vacancy occurring in the Office of the Vice-President, Section


9, Article VII of the 1987 Philippine Constitution expressly provides:

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


during the term for which he was elected, the President shall nominate a Vice-
President from among the Members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all
the Members of both Houses of the Congress, voting separately.

A similar provision is also found in Section 14, Chapter 3, Book II of the


Administrative Code of 1987.
Inhibitions (Prohibition against concurrent appointments)
IVC4.
Section 13, Article VII of the 1987 Constitution provides a stricter
prohibition against the holding of multiple offices by executive officials and
an anti-nepotism provision, which reads:

Section 13. The President, Vice-President, the Members of the Cabinet,


and their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. They
shall not, during said tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their office.

91
The spouse and relatives by consanguinity or affinity within the fourth
civil degree of the President shall not, during his tenure, be appointed as
Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled corporations
and their subsidiaries.

Complementing the prohibition provided in the first paragraph of


Section 13 of Article VII is Section 7, paragraph (2), Article IX-B of the 1987
Constitution
Section 7. x x x

Unless otherwise allowed by law or the primary functions of his


position, no appointive official shall hold any other office or employment in
the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries.

The prohibition provided for under Section 13 of Article VII is reinforced in


Section 15, Chapter 3 on Executive Power, Book II of the Administrative Code of
1987.
The practice of designating members of the Cabinet, their deputies and
assistants as members of the governing bodies or boards of various government
agencies and instrumentalities, including government-owned and controlled
corporations, became prevalent during the time legislative powers in this country
were exercised by former President Ferdinand E. Marcos pursuant to his martial law
authority. There was a proliferation of newly-created agencies, instrumentalities and
government-owned and controlled corporations created by presidential decrees and
other modes of presidential issuances where Cabinet members, their deputies or
assistants were designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and other perquisites of
office. Most of these instrumentalities have remained up to the present time.

This practice of holding multiple offices or positions in the government soon


led to abuses by unscrupulous public officials who took advantage of this scheme
for purposes of self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the Batasang Pambansa. This
condemnation came in reaction to the published report of the Commission on Audit,
entitled "1983 Summary Annual Audit Report on: Government-Owned and
Controlled Corporations, Self-Governing Boards and Commissions" which carried as
its Figure No. 4 a "Roaster of Membership in Governing Boards of Government-
Owned and Controlled Corporations as of December 31, 1983."

92
Particularly odious and revolting to the people's sense of propriety and
morality in government service were the data contained therein that Roberto V.
Ongpin was a member of the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23);
Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S.
Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of
thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P.
Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia
Bautista and Teodoro Q. Pea of ten (10) each.

The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution the
provisions under consideration which are envisioned to remedy, if not correct, the
evils that flow from the holding of multiple governmental offices and employment.
In fact, one of the strongest selling points of the 1987 Constitution during the
campaign for its ratification was the assurance given by its proponents that the
scandalous practice of Cabinet members holding multiple positions in the
government and collecting unconscionably excessive compensation therefrom
would be discontinued.

But what is indeed significant is the fact that although Section 7, Article IX-B
already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President,
members of the Cabinet, their deputies and assistants from holding any other office
or employment during their tenure, unless otherwise provided in the Constitution
itself.

Evidently, from this move as well as in the different phraseologies of the


constitutional provisions in question, the intent of the framers of the Constitution
was to impose a stricter prohibition on the President and his official family in so far
as holding other offices or employment in the government or elsewhere is
concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article


VII with other provisions of the Constitution on the disqualifications of certain public
officials or employees from holding other offices or employment. Under Section 13,
Article VI, "[n]o Senator or Member of the House of Representatives may hold any
other office or employment in the Government." Under Section 5(4), Article XVI,
"[n]o member of the armed forces in the active service shall, at any time, be

93
appointed in any capacity to a civilian position in the Government, including
government-owned or controlled corporations or any of their subsidiaries." Even
Section 7 (2), Article IX-B provides "[u]nless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or
employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other


office or employment, the prohibition pertains to an office or employment in the
government and government-owned or controlled corporations or their subsidiaries.
In striking contrast is the wording of Section 13, Article VII which states that "[t]he
President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other
office or employment during their tenure." In the latter provision, the
disqualification is absolute, not being qualified by the phrase "in the Government."
The prohibition imposed on the President and his official family is therefore all-
embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They
shall not, during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in
any franchise, or special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries." These sweeping, all-embracing prohibitions
imposed on the President and his official family, which prohibitions are not similarly
imposed on other public officials or employees such as the Members of Congress,
members of the civil service in general and members of the armed forces, are proof
of the intent of the 1987 Constitution to treat the President and his official family as
a class by itself and to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the


President and his official family was also succinctly articulated by Commissioner
Vicente Foz after Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry between the Civil Service
prohibitions, originally found in the General Provisions and the anticipated report on
the Executive Department. Commissioner Foz Commented, "We actually have to be
stricter with the President and the members of the Cabinet because they exercise
more powers and, therefore, more cheeks and restraints on them are called for
because there is more possibility of abuse in their case."

Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized by
the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down

94
the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable only
to the President, the Vice- President, Members of the Cabinet, their deputies and
assistants.

This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions
provided under Section 7, Article IX-B of the 1987 Constitution. To construe said
qualifying phrase as applicable to the broad exceptions provided under Section 7,
Article IX-B of the 1987 Constitution would render nugatory and meaningless the
manifest intent and purpose of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the Cabinet, their deputies
and assistants with respect to holding other offices or employment in the
government during their tenure.

Moreover, to construe said qualifying phrase (as applicable to the broad


exception referred to in Section 7, Article IX-B) would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President
who, under Section 13 of Article VII is allowed to hold other office or employment
when so authorized by the Constitution, but who as an elective public official under
Sec. 7, par. (1) of Article IX-B is absolutely ineligible "for appointment or designation
in any capacity to any public office or position during his tenure." Surely, to say that
the phrase "unless otherwise provided in this Constitution" found in Section 13,
Article VII has reference to Section 7, par. (1) of Article I-XB would render
meaningless the specific provisions of the Constitution authorizing the Vice-
President to become a member of the Cabinet, and to act as President without
relinquishing the Vice-Presidency where the President shall not have been chosen or
fails to qualify. Such absurd consequence can be avoided only by interpreting the
two provisions under consideration as one, i.e., Section 7, par. (1) of Article IX-B
providing the general rule and the other, i.e., Section 13, Article VII as constituting
the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be
construed vis-a-vis Section 13, Article VII.

Since the evident purpose of the framers of the 1987 Constitution is to


impose a stricter prohibition on the President, Vice-President, members of the
Cabinet, their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the language of Section 13, Article VII
is prohibitory so that it must be understood as intended to be a positive and
unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it
is to be understood as intended to be a positive and unequivocal negation. The
phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution

95
itself, to wit: the Vice-President being appointed as a member of the Cabinet under
Section 3, par. (2), Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under


Section 13, Article VII of the Constitution must not, however, be construed as
applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and
as required by the primary functions of said officials' office. The reason is that these
posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and
functions on said officials.

The prohibition under Section 13, Article VII is not to be interpreted as


covering positions held without additional compensation in ex-officio capacities as
provided by law and as required by the primary functions of the concerned official's
office. The term ex-officio means "from office; by virtue of office." It refers to an
"authority derived from official character merely, not expressly conferred upon the
individual character, but rather annexed to the official position." Ex-officio likewise
denotes an "act done in an official character, or as a consequence of office, and
without any other appointment or authority than that conferred by the office."
An ex-officio member of a board is one who is a member by virtue of his title to a
certain office, and without further warrant or appointment.

The term "primary" used to describe "functions" refers to the order of


importance and thus means chief or principal function. The term is not restricted to
the singular but may refer to the plural. The additional duties must not only be
closely related to, but must be required by the official's primary functions. Examples
of designations to positions by virtue of one's primary functions are the Secretaries
of Finance and Budget sitting as members of the Monetary Board, and the Secretary
of Transportation and Communications acting as Chairman of the Maritime Industry
Authority and the Civil Aeronautics Board.

If the functions required to be performed are merely incidental, remotely


related, inconsistent, incompatible, or otherwise alien to the primary function of a
cabinet official, such additional functions would fall under the purview of "any other
office" prohibited by the Constitution. An example would be the Press
Undersecretary sitting as a member of the Board of the Philippine Amusement and
Gaming Corporation. The same rule applies to such positions which confer on the
cabinet official management functions and/or monetary compensation, such as but
not limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.

96
Mandating additional duties and functions to the President, Vice-President,
Cabinet Members, their deputies or assistants which are not inconsistent with those
already prescribed by their offices or appointments by virtue of their special
knowledge, expertise and skill in their respective executive offices is a practice
long-recognized in many jurisdictions. It is a practice justified by the demands of
efficiency, policy direction, continuity and coordination among the different offices
in the Executive Branch in the discharge of its multifarious tasks of executing and
implementing laws affecting national interest and general welfare and delivering
basic services to the people. It is consistent with the power vested on the President
and his alter egos, the Cabinet members, to have control of all the executive
departments, bureaus and offices and to ensure that the laws are faithfully
executed. Without these additional duties and functions being assigned to the
President and his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as provided by
law and as required by their primary functions, they would be supervision, thereby
deprived of the means for control and resulting in an unwieldy and confused
bureaucracy.

It bears repeating though that in order that such additional duties or


functions may not transgress the prohibition embodied in Section 13, Article VII of
the 1987 Constitution, such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform the same in an ex-
officio capacity as provided by law, without receiving any additional compensation
therefor.

The ex-officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached to
his principal office. It should be obvious that if, say, the Secretary of Finance attends
a meeting of the Monetary Board as an ex-officio member thereof, he is actually and
in legal contemplation performing the primary function of his principal office in
defining policy in monetary and banking matters, which come under the jurisdiction
of his department. For such attendance, therefore, he is not entitled to collect any
extra compensation, whether it be in the form of a per them or an honorarium or an
allowance, or some other such euphemism. By whatever name it is designated,
such additional compensation is prohibited by the Constitution.

It being clear, as it was in fact one of its best selling points, that the 1987
Constitution seeks to prohibit the President, Vice-President, members of the
Cabinet, their deputies or assistants from holding during their tenure multiple
offices or employment in the government, except in those cases specified in the
Constitution itself and as above clarified with respect to posts held without

97
additional compensation in an ex-officio capacity as provided by law and as required
by the primary functions of their office.240

IVD. Judicial Power

Pursuant to Section 1, Article VII of the 1987 Philippine Constitution, [t]he


judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.

Judicial power is also defined per Section 16, Chapter 4, Book II of the
Administrative Code of 1987.

The Constitution vests judicial power in the Court and in such lower courts as
may be established by law. In creating a lower court, Congress concomitantly
determines the jurisdiction of that court, and that court, upon its creation, becomes,
by operation of the Constitution, one of the repositories of judicial power. However,
only the (Supreme) Court is a constitutionally created court, the rest being created
by Congress in its exercise of the legislative power.

The Constitution states that judicial power includes the duty of the courts of
justice not only "to settle actual controversies involving rights which are legally
demandable and enforceable" but also "to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government." It has thereby expanded the
concept of judicial power, which up to then was confined to its traditional ambit of
settling actual controversies involving rights that were legally demandable and
enforceable.

98
The background and rationale of the expansion of judicial power under the
1987 Constitution were laid out during the deliberations of the 1986 Constitutional
Commission by Commissioner Roberto R. Concepcion (a former Chief Justice of the
Philippines) in his sponsorship of the proposed provisions on the Judiciary, where he
said:

The Supreme Court, like all other courts, has one main function: to settle
actual controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be enforced
by a judicial party. In a decided case, a husband complained that his wife was
unwilling to perform her duties as a wife. The Court said: "We can tell your wife
what her duties as such are and that she is bound to comply with them, but we
cannot force her physically to discharge her main marital duty to her husband.
There are some rights guaranteed by law, but they are so personal that to enforce
them by actual compulsion would be highly derogatory to human dignity." This is
why the first part of the second paragraph of Section 1 provides that: Judicial power
includes the duty of courts to settle actual controversies involving rights which are
legally demandable or enforceable.

The courts, therefore, cannot entertain, much less decide, hypothetical


questions. In a presidential system of government, the Supreme Court has, also,
another important function. The powers of government are generally considered
divided into three branches: the Legislative, the Executive and the Judiciary. Each
one is supreme within its own sphere and independent of the others. Because of
that supremacy power to determine whether a given law is valid or not is vested in
courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of government
or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.

99
This is the background of paragraph 2 of Section 1, which means that the
courts cannot hereafter evade the duty to settle matters of this nature, by claiming
that such matters constitute a political question. 241

The first part of the authority represents the traditional concept of judicial
power, involving the settlement of conflicting rights as conferred as law. The second
part of the authority represents a broadening of judicial power to enable the courts
of justice to review what was before forbidden territory, to wit, the discretion of the
political departments of the government.242

With the advent of the 1987 Constitution, judicial power was expanded to
include "the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." The
power was expanded, but it remained absolute. 243

Under the new definition of judicial power, the courts are authorized not only
"to settle actual controversies involving rights which are legally demandable and
enforceable," but also "to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was
before a forbidden territory, to wit, the discretion of the political departments of the
government.244

Parenthetically, it might be well to elaborate a bit that Section 1, Article VIII,


of the 1987 Constitution, empowers the Court to act not only in the settlement of
"actual controversies involving rights which are legally demandable and
enforceable," but also in the determination of "whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. The provision allowing the Court
to look into any possible grave abuse of discretion committed by any government
instrumentality has evidently been couched in general terms in order to make it
malleable to judicial interpretation in the light of any emerging milieu. In its normal

100
concept, the term has been said to imply an arbitrary, despotic, capricious or
whimsical exercise of judgment amounting to lack or excess of jurisdiction. 245

As worded, the new provision vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even the wisdom of the decisions of the
executive and the legislature and to declare their acts invalid for lack or excess of
jurisdiction because tainted with grave abuse of discretion. The catch, of course, is
the meaning of "grave abuse of discretion," which is a very elastic phrase that can
expand or contract according to the disposition of the judiciary.

Thus, the political question doctrine is no longer the insurmountable obstacle


to the exercise of judicial power or the impenetrable shield that protects executive
and legislative actions from judicial inquiry or review. The second paragraph of
section 1, Article VIII of the Constitution, as worded, vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their acts invalid for
lack or excess of jurisdiction because tainted with grave abuse of discretion. 246

However, the Courts power of judicial review, like almost all other powers
conferred by the Constitution, is subject to several limitations, namely: (1) there
must be an actual case or controversy calling for the exercise of judicial power; (2)
the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case, such that he has sustained or will
sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case. Generally, a party
will be allowed to litigate only when these conditions sine qua non are present,
especially when the constitutionality of an act by a co-equal branch of government
is put in issue.247

And when the judiciary mediates to allocate constitutional boundaries, it does


not assert any superiority over the other department; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them. This

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is in truth all that is involved in what is termed "judicial supremacy" which properly
is the power of judicial review under the Constitution. 248

IVD1. Composition, Jurisdiction, Powers of the Supreme Court

The Supreme Court shall be composed of a Chief Justice and fourteen


Associate Justices. It may sit en banc or, in its discretion, in divisions of three, five,
or seven members. Its members shall be appointed by the President from a list of at
least three nominees prepared by the Judicial and Bar Council for every vacancy,
without need of confirmation by the Commission on Appointments. Members of the
Supreme Court are required to have proven competence, integrity, probity and
independence; they must be natural-born citizens of the Philippines, at least forty
years old, with at least fifteen years of experience as a judge of a lower court or law
practice in the country. Justices shall hold office during good behavior until they
reach the age of seventy years, or become incapacitated to discharge the duties of
office.

Under Section 1, Article VIII of the 1987 Philippine Constitution, the judicial
power shall be vested in one Supreme Court and in such lower courts as may be
provided by law. This power includes the duty to settle actual controversies
involving rights that are legally demandable and enforceable and to determine if
any branch or instrumentality of government has acted with grave abuse of
discretion amounting to lack of excess of jurisdiction.

The Supreme Court has both original and appellate jurisdiction. It exercises
original jurisdiction (cases are directly filed with the SC in the first instance without
passing through any of the lower courts) over cases affecting ambassadors, other
public ministers and consuls, and over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus. It also has original jurisdiction over
writs of amparo, habeas data and the environmental writ of kalikasan. It exercises
appellate jurisdiction to review, revise, reverse, modify, or affirm final judgments,
and orders of the lower courts in:

a. All cases in which the constitutionality or validity of any treaty,


international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.

102
b. All cases involving the legality of any tax, impost, assessment, or toll, or
any penalty imposed in relation thereto.

c. All cases in which the jurisdiction of any lower court is in issue.

d. All criminal cases in which the penalty imposed is reclusion perpetua or


higher.

e. All cases in which only an error or question of law is involved.

The Supreme Court has administrative supervision over all courts and court
personnel. It exercises this power through the Office of the Court Administrator.

The Supreme Court has the exclusive power to promulgate rules concerning
the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the integrated bar, and
legal assistance to the underprivileged. Any such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court. 249

The Supreme Court is a court of last resort. Under the principle of hierarchy of
courts, direct recourse to this Court is improper because the Supreme Court is a
court of last resort and must remain to be so in order for it to satisfactorily perform
its constitutional functions, thereby allowing it to devote its time and attention to
matters within its exclusive jurisdiction and preventing the overcrowding of its
docket.250 The established policy of strict observance of the judicial hierarchy of
courts, as a rule, requires that recourse must first be made to the lower ranked
court exercising concurrent jurisdiction with a higher court. A regard for judicial
hierarchy clearly indicates that petitions for the issuance of extraordinary writs
against first level courts should be filed in the RTC and those against the latter
should be filed in the Court of Appeals. The rule is not iron-clad, however, as it
admits of certain exceptions.251

The rule is not iron-clad, however, as it admits of certain exceptions. While


the principle of hierarchy of courts does indeed require that recourses should be
made to the lower courts before they are made to the higher courts, this principle is
not an absolute rule and admits of exceptions under well-defined circumstances. In
several cases, we have allowed direct invocation of this Courts original jurisdiction
to issue writs of certiorari on the ground of special and important reasons clearly
stated in the petition; (1) when dictated by public welfare and the advancement of
public policy; (2) when demanded by the broader interest of justice; (3) when the
challenged orders were patent nullities; or (4) when analogous exceptional and
compelling circumstances called for and justified our immediate and direct handling
of the case.252

As a rule, the Supreme Court is not a trier of facts, for it resolves only
questions of law and not questions of fact. A question of law arises when there is

103
doubt as to what the law is on a certain state of facts, while there is a question of
fact when the doubt arises as to the truth or falsity of the alleged facts. For a
question to be one of law, its resolution must not involve an examination of the
probative value of the evidence presented by the litigants, but must rely solely on
what the law provides on the given set of facts. If the facts are disputed or if the
issues require an examination of the evidence, the question posed is one of fact.
The test, therefore, is not the appellation given to a question by the party raising it,
but whether the appellate court can resolve the issue without examining or
evaluating the evidence, in which case, it is a question of law; otherwise, it is a
question of fact.253

It is a settled rule that in the exercise of the Supreme Courts power of


review, the Court is not a trier of facts and does not normally undertake the re-
examination of the evidence presented by the contending parties during the trial of
the case considering that the findings of facts of the CA are conclusive and binding
on the Court. However, the Court had recognized several exceptions to this rule, to
wit: (1) when the findings are grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or
impossible; (3) when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of facts are conflicting;
(6) when in making its findings the Court of Appeals went beyond the issues of the
case, or its findings are contrary to the admissions of both the appellant and the
appellee; (7) when the findings are contrary to the trial court; (8) when the findings
are conclusions without citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the petitioners main and reply
briefs are not disputed by the respondent; (10) when the findings of fact are
premised on the supposed absence of evidence and contradicted by the evidence
on record; and (11) when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly considered, would
justify a different conclusion.254

IVD2. Judicial and Bar Council

The composition, term and functions of the JBC are expressly provided for
under Section 8, Article VIII of the 1987 Philippine Constitution and transplanted in
toto in Section 21, Chapter 4, Book II of the Administrative Code of 1987, which
reads:

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Section 21. Judicial and Bar Council. (1) A Judicial and Bar Council is hereby
created under the supervision of the Supreme Court composed of the Chief Justice
as ex officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Member, a representative of the Integrated Bar, a professor
of law, a retired Member of the Supreme Court, and a representative of the private
sector.

xxx

(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the
Council and shall keep a record of its proceedings.

xxx

(5) The Council shall have the principal function of recommending appointees
to the Judiciary. It may exercise such other functions and duties as the Supreme
Court may assign to it.

Long before the naissance of the present Constitution, the annals of history
bear witness to the fact that the exercise of appointing members of the Judiciary
has always been the exclusive prerogative of the executive and legislative branches
of the government. Like their progenitor of American origins, both the Malolos
Constitution and the 1935 Constitution had vested the power to appoint the
members of the Judiciary in the President, subject to confirmation by the
Commission on Appointments. It was during these times that the country became
witness to the deplorable practice of aspirants seeking confirmation of their
appointment in the Judiciary to ingratiate themselves with the members of the
legislative body.

Then, with the fusion of executive and legislative power under the 1973
Constitution, the appointment of judges and justices was no longer subject to the
scrutiny of another body. It was absolute, except that the appointees must have all
the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary


from political pressure and partisan activities, the members of the Constitutional
Commission saw the need to create a separate, competent and independent body
to recommend nominees to the President. Thus, it conceived of a body
representative of all the stakeholders in the judicial appointment process and called
it the Judicial and Bar Council (JBC).

Doubtless, the Framers of our Constitution intended to create a JBC as an


innovative solution in response to the public clamor in favor of eliminating politics in
the appointment of members of the Judiciary. To ensure judicial independence, they
adopted a holistic approach and hoped that, in creating a JBC, the private sector
and the three branches of government would have an active role and equal voice in
the selection of the members of the Judiciary. 255

The purpose of the JBCs existence is indubitably rooted in the categorical


constitutional declaration that "a member of the judiciary must be a person of

105
proven competence, integrity, probity, and independence." To ensure the fulfillment
of these standards in every member of the Judiciary, the JBC has been tasked to
screen aspiring judges and justices, among others, making certain that the
nominees submitted to the President are all qualified and suitably best for
appointment. In this way, the appointing process itself is shielded from the
possibility of extending judicial appointment to the undeserving and mediocre and,
more importantly, to the ineligible or disqualified.

Section 8(1), Article VIII of the 1987 Constitution provides for the creation of
the JBC. The Supreme Court was given supervisory authority over it. Based on this,
the supervisory authority of the Court over the JBC covers the overseeing of
compliance with its rules.256

Anent the issue of whether or not the policy of JBC requiring five years of
service as judge of first-level courts (MeTC, MTC, MCTC, MTCC) before qualifying as
applicant to second-level courts (RTC) is constitutional, since Section 7, Article VIII of
the 1987 Philippine Constitution has already prescribed the qualifications of justices
and judges, viz:

Section 7. (1) No person shall be appointed Member of the Supreme Court or


any lower collegiate court unless he is a natural-born citizen of the Philippines. A
Member of the Supreme Court must be at least forty years of age, and must have
been for fifteen years or more, a judge of a lower court or engaged in the practice
of law in the Philippines.

(2)The Congress shall prescribe the qualifications of judges of lower courts,


but no person may be appointed judge thereof unless he is a citizen of the
Philippines and a member of the Philippine Bar.

(3) A Member of the Judiciary must be a person of proven competence,


integrity, probity, and independence.

In Villanueva v. Judicial and Bar Council,257 the Supreme Court answered in


the affirmative. As an offspring of the 1987 Constitution, the JBC is mandated to
recommend appointees to the judiciary and only those nominated by the JBC in a
list officially transmitted to the President may be appointed by the latter as justice
or judge in the judiciary. Thus, the JBC is burdened with a great responsibility that is
imbued with public interest as it determines the men and women who will sit on the
judicial bench. While the 1987 Constitution has provided the qualifications of
members of the judiciary, this does not preclude the JBC from having its own set of
rules and procedures and providing policies to effectively ensure its mandate.

The functions of searching, screening, and selecting are necessary and


incidental to the JBCs principal function of choosing and recommending nominees
for vacancies in the judiciary for appointment by the President. However, the
Constitution did not lay down in precise terms the process that the JBC shall follow
in determining applicants qualifications. In carrying out its main function, the JBC
has the authority to set the standards/criteria in choosing its nominees for every

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vacancy in the judiciary, subject only to the minimum qualifications required by the
Constitution and law for every position. The search for these long held qualities
necessarily requires a degree of flexibility in order to determine who is most fit
among the applicants. Thus, the JBC has sufficient but not unbridled license to act in
performing its duties.

JBCs ultimate goal is to recommend nominees and not simply to fill up


judicial vacancies in order to promote an effective and efficient administration of
justice. Given this pragmatic situation, the JBC had to establish a set of uniform
criteria in order to ascertain whether an applicant meets the minimum
constitutional qualifications and possesses the qualities expected of him and his
office. Thus, the adoption of the five-year requirement policy applied by JBC to the
petitioners case is necessary and incidental to the function conferred by the
Constitution to the JBC.

The JBC merely exercised its discretion in accordance with the constitutional
requirement and its rules that a member of the Judiciary must be of proven
competence, integrity, probity and independence. Consideration of experience by
JBC as one factor in choosing recommended appointees does not constitute a
violation of the equal protection clause. The JBC does not discriminate when it
employs number of years of service to screen and differentiate applicants from the
competition. The number of years of service provides a relevant basis to determine
proven competence which may be measured by experience, among other factors.

As the constitutional body granted with the power of searching for, screening,
and selecting applicants relative to recommending appointees to the Judiciary, the
JBC has the authority to determine how best to perform such constitutional
mandate. Pursuant to this authority, the JBC issues various policies setting forth the
guidelines to be observed in the evaluation of applicants, and formulates rules and
guidelines in order to ensure that the rules are updated to respond to existing
circumstances. Its discretion is freed from legislative, executive or judicial
intervention to ensure that the JBC is shielded from any outside pressure and
improper influence. Limiting qualified applicants in this case to those judges with
five years of experience was an exercise of discretion by the JBC. The potential
applicants, however, should have been informed of the requirements to the judicial
positions, so that they could properly prepare for and comply with them. Hence,
unless there are good and compelling reasons to do so, the Court will refrain from
interfering with the exercise of JBCs powers, and will respect the initiative and
independence inherent in the latter.

Moving on to another point, the 1987 Philippine Constitution provides for the
composition of Judicial and Bar Council, and that one of its members must come
from Congress. Since Philippine Congress adapts bicameralismtwo chambers
composed of the House of the Representatives and the Senatedoes the phrase
and a representative of the Congress as ex officio Member in the first paragraph
of Section 8, Article VIII of the 1987 Constitution allow more than one (1) member of
Congress to sit in the JBC?

The Congress, from the moment of the creation of the JBC, designated one
representative to sit in the JBC to act as one of the ex officio members. Perhaps in

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order to give equal opportunity to both houses to sit in the exclusive body, the
House of Representatives and the Senate would send alternate representatives to
the JBC. In other words, Congress had only one (1) representative.

In 1994, the composition of the JBC was substantially altered. Instead of


having only seven (7) members, an eighth (8th) member was added to the JBC as
two (2) representatives from Congress began sitting in the JBCone from the House
of Representatives and one from the Senate, with each having one-half (1/2) of a
vote. Then, curiously, the JBC En Banc, in separate meetings held in 2000 and 2001,
decided to allow the representatives from the Senate and the House of
Representatives one full vote each. At present, Senator Francis Joseph G. Escudero
and Congressman Niel C. Tupas, Jr. simultaneously sit in the JBC as representatives
of the legislature.

Is the practice of having two (2) representatives from each house of Congress
with one (1) vote each sanctioned by the Constitution? In Chavez v. Judicial and Bar
Council,258 the Supreme Court proffered elucidation, thus:

From a simple reading of the above-quoted provision, it can readily be


discerned that the provision is clear and unambiguous. The first paragraph calls for
the creation of a JBC and places the same under the supervision of the Court. Then
it goes to its composition where the regular members are enumerated: a
representative of the Integrated Bar, a professor of law, a retired member of the
Court and a representative from the private sector. On the second part lies the crux
of the present controversy. It enumerates the ex officio or special members of the
JBC composed of the Chief Justice, who shall be its Chairman, the Secretary of
Justice and "a representative of Congress."

The use of the singular letter "a" preceding "representative of Congress" is


unequivocal and leaves no room for any other construction. It is indicative of what
the members of the Constitutional Commission had in mind, that is, Congress may
designate only one (1) representative to the JBC. Had it been the intention that
more than one (1) representative from the legislature would sit in the JBC, the
Framers could have, in no uncertain terms, so provided.

It becomes apparent that the word "Congress" used in Article VIII, Section
8(1) of the Constitution is used in its generic sense. No particular allusion
whatsoever is made on whether the Senate or the House of Representatives is
being referred to, but that, in either case, only a singular representative may be
allowed to sit in the JBC. The foregoing declaration is but sensible, since, as pointed
out by an esteemed former member of the Court and consultant of the JBC in his
memorandum, "from the enumeration of the membership of the JBC, it is patent
that each category of members pertained to a single individual only."

Nevertheless, even if the Court should proceed to look into the minds of the
members of the Constitutional Commission, it is undeniable from the records
thereof that it was intended that the JBC be composed of seven (7) members only.

The seven-member composition of the JBC serves a practical purpose, that is,
to provide a solution should there be a stalemate in voting. This underlying reason

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leads the Court to conclude that a single vote may not be divided into half (1/2),
between two representatives of Congress, or among any of the sitting members of
the JBC for that matter. This unsanctioned practice can possibly cause disorder and
eventually muddle the JBCs voting process, especially in the event a tie is reached.
The aforesaid purpose would then be rendered illusory, defeating the precise
mechanism which the Constitution itself created. While it would be unreasonable to
expect that the Framers provide for every possible scenario, it is sensible to
presume that they knew that an odd composition is the best means to break a
voting deadlock.

A perusal of the records of the Constitutional Commission reveals that the


composition of the JBC reflects the Commissions desire to have in the Council a
representation for the major elements of the community. The ex-officio members of
the Council consist of representatives from the three main branches of government
while the regular members are composed of various stakeholders in the
judiciary. The unmistakable tenor of Article VIII, Section 8(1) was to treat each ex-
officio member as representing one co-equal branch of government. Thus, the JBC
was designed to have seven voting members with the three ex-officio members
having equal say in the choice of judicial nominees.

It is more in keeping with the co-equal nature of the three governmental


branches to assign the same weight to considerations that any of its representatives
may have regarding aspiring nominees to the judiciary. The representatives of the
Senate and the House of Representatives act as such for one branch and should not
have any more quantitative influence as the other branches in the exercise of
prerogatives evenly bestowed upon the three. Sound reason and principle of
equality among the three branches support this conclusion.

Therefore, to allow the Legislature to have more quantitative influence in the


JBC by having more than one voice speak, whether with one full vote or one-half
(1/2) a vote each, would, as one former congressman and member of the JBC put it,
"negate the principle of equality among the three branches of government which is
enshrined in the Constitution."

The present imbalance in voting power between the Legislative and the other
sectors represented in the JBC must be corrected especially when considered vis--
vis the avowed purpose for its creation, i.e., to insulate the appointments in the
Judiciary against political influence. By allowing both houses of Congress to have a
representative in the JBC and by giving each representative one (1) vote in the
Council, Congress, as compared to the other members of the JBC, is accorded
greater and unwarranted influence in the appointment of judges.

It is clear, therefore, that the Constitution mandates that the JBC be


composed of seven (7) members only. Thus, any inclusion of another member,
whether with one whole vote or half (1/2) of it, goes against that mandate. Section
8(1), Article VIII of the Constitution, providing Congress with an equal voice with
other members of the JBC in recommending appointees to the Judiciary is explicit.

One final point. There are two constitutional provisions that are seemingly in
conflict.

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The first, Section 15, Article VII (Executive Department) of the 1987 Philippine
Constitution, provides:

Section 15. Two months immediately before the next presidential elections
and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department) of the 1987
Philippine Constitution, states:

Section 4. (1). The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in division of
three, five, or seven Members. Any vacancy shall be filled within ninety days from
the occurrence thereof.

Section 15, Article VII is a constitutional prohibition on the appointing power


of the President referred to as midnight appointment. Does this prohibition
against the appointing power of the President apply to the Judiciary. In De Castro v.
Judicial and Bar Council,259 The Supreme Court answered in the negative. Briefly, the
facts are:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010
occurs just days after the presidential elections on May 10, 2010. Even before the
event actually happens, it is giving rise to many legal dilemmas. May the incumbent
President appoint his successor, considering that Section 15, Article VII (Executive
Department) of the Constitution prohibits the President or Acting President from
making appointments within two months immediately before the next presidential
elections and up to the end of his term, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service
or endanger public safety?

What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the
Constitution, which provides that any vacancy in the Supreme Court shall be filled
within 90 days from the occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the process of screening
the candidates nominated or being considered to succeed Chief Justice Puno, and
submit the list of nominees to the incumbent President even during the period of
the prohibition under Section 15, Article VII?

The Constitution consists of 18 Articles, three of which embody the allocation


of the awesome powers of government among the three great departments, the
Legislative (Article VI), the Executive (Article VII), and the Judicial Departments
(Article VIII). The arrangement was a true recognition of the principle of separation
of powers.

As can be seen, Article VII is devoted to the Executive Department, and,


among others, it lists the powers vested by the Constitution in the President. The

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presidential power of appointment is dealt with in Sections 14, 15 and 16 of the
Article.

Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4(1) and
Section 9 of this Article are the provisions specifically providing for the appointment
of Supreme Court Justices. In particular, Section 9 states that the appointment of
Supreme Court Justices can only be made by the President upon the submission of a
list of at least three nominees by the JBC; Section 4(1) of the Article mandates the
President to fill the vacancy within 90 days from the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could have
explicitly done so. They could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the prohibition made explicit
in Section 15, Article VII as being equally applicable to the appointment of Members
of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII.
That such specification was not done only reveals that the prohibition against the
President or Acting President making appointments within two months before the
next presidential elections and up to the end of the President's or Acting President's
term does not refer to the Members of the Supreme Court.

Moreover, the usage in Section 4(1), Article VIII of the word shall - an
imperative, operating to impose a duty that may be enforced - should not be
disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to
make an appointment of a Member of the Supreme Court within 90 days from the
occurrence of the vacancy. The failure by the President to do so will be a clear
disobedience to the Constitution. The 90-day limitation fixed in Section 4(1), Article
VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a
special provision to establish a definite mandate for the President as the appointing
power.

There is no doubt that the Constitutional Commission confined the prohibition


to appointments made in the Executive Department. The framers did not need to
extend the prohibition to appointments in the Judiciary, because their establishment
of the JBC and their subjecting the nomination and screening of candidates for
judicial positions to the unhurried and deliberate prior process of the JBC ensured
that there would no longer be midnight appointments to the Judiciary. If midnight
appointments were made in haste and with irregularities, or made by an outgoing
Chief Executive in the last days of his administration out of a desire to subvert the
policies of the incoming President or for partisanship, the appointments to the
Judiciary made after the establishment of the JBC would not be suffering from such
defects because of the JBC's prior processing of candidates.

Further, Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a
list of at least three nominees to the President for every vacancy in the Judiciary:

Section 8. x x x

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(5) The Council shall have the principal function of recommending
appointees to the Judiciary.

xxx

Section 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy. Such appointments need no
confirmation.

For the lower courts, the President shall issue the appointments within ninety
days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill
the vacancy in the Supreme Court within 90 days from the occurrence of the
vacancy, and within 90 days from the submission of the list, in the case of the lower
courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC
should start the process of selecting the candidates to fill the vacancy in the
Supreme Court before the occurrence of the vacancy.

Under the Constitution, it is mandatory for the JBC to submit to the President
the list of nominees to fill a vacancy in the Supreme Court in order to enable the
President to appoint one of them within the 90-day period from the occurrence of
the vacancy. The JBC has no discretion to submit the list to the President after the
vacancy occurs, because that shortens the 90-day period allowed by the
Constitution for the President to make the appointment. For the JBC to do so will be
unconscionable on its part, considering that it will thereby effectively and illegally
deprive the President of the ample time granted under the Constitution to reflect on
the qualifications of the nominees named in the list of the JBC before making the
appointment.

IVD3. Administrative Supervision

The supervisory power of the Supreme Court over all courts and its personnel
is provided in Section 6, Article VIII of the 1987 Constitution, which reads as follows:

Section 6. The Supreme Court shall have administrative supervision over all
courts and the personnel thereof.

The said supervisory power is reiterated in Section 20, Chapter 4, Book II of


the Administrative Code of 1987.

Section 6, Article VIII of the 1987 Philippine Constitution exclusively vests in


the Court administrative supervision over all courts and court personnel, from the

112
Presiding Justice of the Court of Appeals down to the lowest municipal trial court
clerk. As such, it oversees the court personnels compliance with all laws and takes
the proper administrative action against them for any violation thereof. 260 By virtue
of this power, it is only the Supreme Court that can oversee the judges and court
personnels administrative compliance with all laws, rules and regulations. No other
branch of government may intrude into this power, without running afoul of the
doctrine of separation of powers. 261

As concrete legal basis, the Supreme Court is expressly granted the general
power of administrative supervision overall courts and the personnel thereof. By its
plain terms, the power extends not only to the authority to supervise and discipline
lower court judges but to exercise the same powers over the Members of the Court
itself. This is the unavoidable meaning of this grant of authority if its main rationale
i.e., to preserve judicial integrityis to be given full effect. The Supreme Court must
ensure that the integrity of the whole Judiciary, its own Members included, is
maintained as any taint on any part of the Judiciary necessarily taints the whole. To
state the obvious, a taint in or misconduct by any Member of the Supreme Court
even if only whispered about for lack of concrete evidence and patriotic
whistleblowerscarries greater adverse impact than a similar event elsewhere in the
Judiciary.262

In Maceda v. Vasquez,263 this Court resolved in the affirmative the issue of


whether or not the Ombudsman must defer action on a criminal complaint against a
judge, or a court employee where the same arises from their administrative duties,
and refer the same to this Court for determination whether said judge or court
employee had acted within the scope of their administrative duties.

In Caoibes v. Ombudsman264, two members of the judiciary got entangled in a


fight within court premises over a piece of office furniture. One of the judges filed a
criminal complaint before the Office of the Ombudsman and an administrative
complaint before this Court over the same incident. Judge Caoibes requested to
refer the case to the Supreme Court which the Ombudsman denied. The Court held
that: Under Section 6, Article VIII of the Constitution, it is the Supreme Court which
is vested with exclusive administrative supervision over all courts and its personnel.
Prescinding from this premise, the Ombudsman cannot determine for itself and by
itself whether a criminal complaint against a judge, or court employee, involves an
administrative matter. The Ombudsman is duty bound to have all cases against
judges and court personnel filed before it, referred to the Supreme Court for
determination as to whether an administrative aspect is involved therein.

In Fuentes v. Office of the Ombudsman-Mindanao,265 the issue was whether or


not the Ombudsman may conduct an investigation over the acts of a judge in the
exercise of his official functions alleged to be in violation of the Anti-Graft and
Corrupt Practices Act, in the absence of an administrative charge for the same acts
before the Supreme Court. The Court held that the Ombudsman may not initiate or
investigate a criminal or administrative complaint before his office against petitioner
judge, pursuant to his power to investigate public officers. The Ombudsman must
indorse the case to the Supreme Court, for appropriate action. It is the Supreme
Court that is tasked to oversee the judges and court personnel and take the proper
administrative action against them if they commit any violation of the laws of the

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land. No other branch of government may intrude into this power, without running
afoul of the independence of the judiciary and the doctrine of separation of powers.

in Civil Service Commission v. Sta. Ana, 266 the CSC formally charged Zenaida
Sta. Ana (Sta. Ana), Court Stenographer I of the Municipal Circuit Trial Court of
Quezon-Licab, Nueva Ecija with dishonesty, grave misconduct, and conduct
prejudicial to the best interest of the service for misrepresenting that she took and
passed the CSPE-CAT when in truth and in fact, someone else took the examinations
for her. The CSC found that the picture and signature in Sta. Anas PDS were
different from those appearing in her application form and in the Picture Seat Plan.
Upon the recommendation of the Office of the Court Administrator, this Court found
Sta. Ana guilty of dishonesty and dismissed her from the service with forfeiture of
retirement benefits.

In Ampong v. Civil Service Commission,267 the Court emphasized that in case


of violation of the Civil Service Law by a court personnel, the standard procedure is
for the CSC to bring its complaint against a judicial employee before the Office of
the Court Administrator of the Supreme Court.

IVE. Constitutional Commissions

There are three constitutional commissions mentioned under Section 1,


Article IX-A of the 1987 Philippine Constitution, viz.:

Section 1. The Constitutional Commissions, which shall be independent, are


the Civil Service Commission, the Commission on Elections, and the Commission on
Audit. (Italics supplied.)

This is echoed in Section 24, Chapter 5, Book II of the Administrative Code of


1987.

Section 3, Article IX-B of the 1987 Philippine Constitution describes the CSC
as the central personnel agency of the government and is principally mandated to
establish a career service and adopt measures to promote morale, efficiency,
integrity, responsiveness, progressiveness, and courtesy in the civil service; to
strengthen the merit and rewards system; to integrate all human resources
development programs for all levels and ranks; and to institutionalize a
management climate conducive to public accountability. One of the three
independent constitutional commissions with adjudicative responsibility in the
national government structure, it is also tasked to render final arbitration on
disputes and personnel actions on Civil Service matters. 268

The Commission on Elections is mandated to give life and meaning to the


basic principle that sovereignty resides in the people and all government authority
emanates from them.269 The COMELEC, under Section 2(1), Article IX-C of the 1987
Constitution, is principally mandated, among others, to enforce and administer all
laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall.

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By definition, election means the choice or selection of candidates to public
office by popular vote through the use of the ballot. Specifically, it may refer to the
conduct of the polls, including the listing of voters, the holding of the electoral
campaign, and the casting and counting of ballots and canvassing of returns. 270
"Plebiscite" is the electoral process by which an initiative on the Constitution is
approved or rejected by the people.271 Initiative is the power of the people to
propose amendments to the Constitution or to propose and enact legislations
through election called for the purpose.272 Referendum refers to the power of the
electorate to approve or reject a piece of legislation through an election called for
the purpose.273 Recall refers to the mode of removing an elective public officer by
the people before the end of his term of office. 274

Article IX-C of the 1987 Philippine Constitution describes the Commission on


Audit (COA) as the Philippines' Supreme State Audit Institution. The Philippine
Constitution declares its independence as a constitutional office, grants it powers to
audit all accounts pertaining to all government revenues and expenditures/uses of
government resources and to prescribe accounting and auditing rules, gives it
exclusive authority to define the scope and techniques for its audits, and prohibits
the legislation of any law which would limit its audit coverage. 275
The Civil Service Commission, Commission on Audit, and the Commission on
Elections, perform key functions in the government. The first is the personnel of
government, the second is the auditing office, and the third is charged with the
administration of the all important electoral processes. In order to protect their
integrity, they have been made independent constitutional bodes. 276

Section 1, Article IX-A of the 1987 Constitution expressly describes all the
Constitutional Commissions as "independent." Although their respective functions
are essentially executive in nature, they are not under the control of the President of
the Philippines in the discharge of such functions. Each of the Constitutional
Commissions conducts its own proceedings under the applicable laws and its own
rules and in the exercise of its own discretion. Its decisions, orders and rulings are
subject only to review on certiorari by the Court as provided by Section 7, Article IX-
A of the 1987 Constitution.277

The 1987 Philippine Constitution further vests the Constitutional Commissions


with the following characteristics to insure their independence: (a) They are
constitutionally created, and may not be abolished by statute; (b) Each is expressly
described as independent; (c) Each is conferred certain powers and functions which
cannot be reduced by statute; (d) The Chairmen and members cannot be removed
except by impeachment; (e) The Chairmen and members are given a fairly long
term of office of seven years; (f) The Chairmen and members may not be
reappointed or appointed in an acting capacity; (g) The salaries of the Chairman and
Members are relatively high and may not be decreased during continuance in office;
(h) The Commissions enjoy fiscal autonomy; (i) Each Commission may promulgate
its own procedural rules, provided they do not diminish, increase or modify
substantive rights though subject to disapproval by the Supreme Court; (j) The
Chairmen and members are subject to certain disqualifications calculated to
strengthen their integrity. (l) The Commissions may appoint their own officials and
employees in accordance with Civil Service Law. 278

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Anent the issue of whether the Commission on Human Rights is a
constitutional commission, Article IX of the Constitution states in no uncertain terms
that only the CSC, the Commission on Elections, and the Commission on Audit shall
be tagged as Constitutional Commissions with the appurtenant right to fiscal
autonomy. Thus:

Sec. 1. The Constitutional Commissions, which shall be independent, are the


Civil Service Commission, the Commission on Elections, and the Commission on
Audit.

xxx

Along the same vein, the Administrative Code, in Chapter 5, Sections 24 and
26 of Book II on Distribution of Powers of Government, the constitutional
commissions shall include only the Civil Service Commission, the Commission on
Elections, and the Commission on Audit, which are granted independence and fiscal
autonomy, thus:

SEC. 24. Constitutional Commissions. The Constitutional Commissions,


which shall be independent, are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit.

xxx

SEC. 29. Other Bodies. There shall be in accordance with the Constitution,
an Office of the Ombudsman, a Commission on Human Rights, and independent
central monetary authority, and a national police commission. Likewise, as provided
in the Constitution, Congress may establish an independent economic and planning
agency.

From the 1987 Constitution and the Administrative Code, it is abundantly


clear that the CHR is not among the class of Constitutional Commissions. As
expressed in the oft-repeated maxim expressio unius est exclusio alterius, the
express mention of one person, thing, act or consequence excludes all others.
Stated otherwise, expressium facit cessare tacitum what is expressed puts an end
to what is implied.279

As a last word, anent the matter involving the National Police Commission
(NAPOLCOM), it would not be amiss to point out that under the Constitution, there
are the so-called independent Constitutional Commissions, namely: The Civil Service
Commission, Commission on Audit, and the Commission on Elections. (Article IX-A,
Section 1)

As these Commissions perform vital governmental functions, they have to be


protected from external influences and political pressures. Hence, they were made
constitutional bodies, independent of and not under any department of the
government. Certainly, they are not under the control of the President.

The Constitution also created an independent office called the "Commission


on Human Rights." (Article XIII, Section 17[1]). However, this Commission is not on

116
the same level as the Constitutional Commissions under Article IX, although it is
independent like the latter Commissions. It still had to be constituted thru Executive
Order No. 163 dated May 5, 1987.

In contrast, Article XVI, Section 6 thereof, merely mandates the statutory


creation of a national police commission that will administer and control the national
police force to be established thereunder.

This commission is, for obvious reasons, not in the same category as the
independent Constitutional Commissions of Article IX and the other constitutionally
created independent Office, namely, the Commission on Human Rights.

By way of resume, the three Constitutional Commissions (Civil Service, Audit,


Elections) and the additional commission created by the Constitution (Human
Rights) are all independent of the Executive; but the National Police Commission is
not. In fact, it was stressed during the CONCOM deliberations that this commission
would be under the President, and hence may be controlled by the President, thru
his or her alter ego, the Secretary of the Interior and Local Government. 280

IVE1. Fiscal Autonomy

The fiscal autonomy of Constitutional Commissions is provided in Section 5,


Article IX-A (Common Provisions) of the 1987 of the Philippine Constitution, which
reads:

Section 5. The Commission shall enjoy fiscal autonomy. Their approved


annual appropriations shall be automatically and regularly released.

The Administrative Code, in Section 26, Chapter 5, Book II of the


Administrative Code of 1987, similarly declares the fiscal autonomy of the three (3)
Constitutional Commissions.
As envisioned in the Constitution, the fiscal autonomy enjoyed by the
Judiciary, the Civil Service Commission, the Commission on Audit, the Commission
on Elections, and the Office of the Ombudsman contemplates a guarantee on full
flexibility to allocate and utilize their resources with the wisdom and dispatch that
their needs require. It recognizes the power and authority to levy, assess and collect
fees, fix rates of compensation not exceeding the highest rates authorized by law
for compensation and pay plans of the government and allocate and disburse such
sums as may be provided by law or prescribed by them in the course of the
discharge of their functions.

Fiscal autonomy means freedom from outside control. If the Supreme Court
says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends
its recommendations to Congress without even informing us, the autonomy given by
the Constitution becomes an empty and illusory platitude.

The Judiciary, the Constitutional Commissions, and the Ombudsman must


have the independence end flexibility needed in the discharge of their constitutional
duties. The imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds appropriated for

117
their operations is anathema to fiscal autonomy and violative not only of the
express mandate of the Constitution but especially as regards the Supreme Court,
of the independence and separation of powers upon which the entire fabric of our
constitutional system is based. In the interest of comity and cooperation, the
Supreme Court, Constitutional Commissions, and the Ombudsman have so far
limited their objections to constant reminders. We now agree with the petitioners
that this grant of autonomy should cease to be a meaningless provision. 281

That the "no report, no release" policy may not be validly enforced against
offices vested with fiscal autonomy is not disputed. Indeed, such policy cannot be
enforced against offices possessing fiscal autonomy without violating Article IX (A),
Section 5 of the Constitution which provides:

Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved


appropriations shall be automatically and regularly released.

In construing the phrase "automatic release," Websters Third New


International Dictionary defines "automatic" as "involuntary either wholly or to a
major extent so that any activity of the will is largely negligible; of a reflex nature;
without volition; mechanical; like or suggestive of an automaton." Further, the word
"automatically" is defined as "in an automatic manner: without thought or conscious
intention." Being "automatic," thus, connotes something mechanical, spontaneous
and perfunctory. As such the LGUs are not required to perform any act to receive
the "just share" accruing to them from the national coffers.

By parity of construction, "automatic release" of approved annual


appropriations to a constitutional commission which is vested with fiscal autonomy,
should thus be construed to mean that no condition to fund releases to it may be
imposed.282 Section 5 gives them fiscal autonomy, that is, their approved annual
appropriations shall be automatically and regularly released and shall not be subject
to pre-audit.283

Finally, while acknowledging the unconstitutionality of imposing a "no report,


no release" policy on agencies clothed with fiscal autonomy, this is not to say that
agencies vested with fiscal autonomy have no reporting responsibility at all to the
DBM. This is precisely the reason why constitutional commissions clothed with fiscal
autonomy for that matter, may submit reports relative to its appropriation "for
records purposes only." The word "may" is permissive, as it is an auxiliary verb
manifesting "opportunity or possibility" and, under ordinary circumstances, "implies
the possible existence of something."284

In essence, fiscal autonomy entails freedom from outside control and


limitations, other than those provided by law. It is the freedom to allocate and utilize
funds granted by law, in accordance with law, and pursuant to the wisdom and
dispatch its needs may require from time to time. 285

IVE2. Inhibitions
against Constitutional Commissioners
Pursuant Section 2, Article IX-A of the 1987 Philippine Constitution, the
inhibitions against Constitutional Commissioners read:

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Section 2. No member of a Constitutional Commission shall, during his
tenure, hold any other office or employment. Neither shall he engage in the
practice of any profession or in the active management or control of any business
which, in any way, may be affected by the functions of his office, nor shall he be
financially interested, directly or indirectly, in any contract with, or in any franchise
or privilege granted by the Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their
subsidiaries.

The same constitutional provision on inhibitions against Constitutional


Commissioners is reinforced in Section 25, Chapter 5, Book II of the Administrative
Code of 1987

To safeguard the independence of these Constitutional Commissions, the


1987 Constitution, among others, imposes under Section 2, Article IX-A of the
Constitution certain inhibitions and disqualifications upon the Chairmen and
members to strengthen their integrity, to wit: (a) Holding any other office or
employment during their tenure; (b) Engaging in the practice of any profession; (c)
Engaging in the active management or control of any business which in any way
may be affected by the functions of his office; and (d) Being financially interested,
directly or indirectly, in any contract with, or in any franchise or privilege granted by
the Government, any of its subdivisions, agencies or instrumentalities, including
government-owned or controlled corporations or their subsidiaries.

The issue herein involves the first disqualification abovementioned, which is


the disqualification from holding any other office or employment during (Duques)
tenure as Chairman of the CSC. The Court finds it imperative to interpret this
disqualification in relation to Section 7, paragraph (2), Article IX-B of the
Constitution.

Section 7, paragraph (2), Article IX-B reads:

Section 7. x x x

Unless otherwise allowed by law or the primary functions of his position, no


appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.

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While all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized by
the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down
the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable only
to the President, the Vice-President, Members of the Cabinet, their deputies and
assistants.

Since the evident purpose of the framers of the 1987 Constitution is to


impose a stricter prohibition on the President, Vice-President, members of the
Cabinet, their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the language of Section 13, Article VII
is prohibitory so that it must be understood as intended to be a positive and
unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it
is to be understood as intended to be a positive and unequivocal negation. The
phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution
itself, to wit: the Vice-President being appointed as a member of the Cabinet under
Section 3, par. (2), Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Being an appointive public official who does not occupy a Cabinet position
(i.e., President, the Vice-President, Members of the Cabinet, their deputies and
assistants), Duque was thus covered by the general rule enunciated under Section
7, paragraph (2), Article IX-B. He can hold any other office or employment in the
Government during his tenure if such holding is allowed by law or by the primary
functions of his position.

As to the meaning of ex officio, it means "from office; by virtue of office." It


refers to an "authority derived from official character merely, not expressly
conferred upon the individual character, but rather annexed to the official position."

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Ex officio likewise denotes an "act done in an official character, or as a consequence
of office, and without any other appointment or authority other than that conferred
by the office." An ex officio member of a board is one who is a member by virtue of
his title to a certain office, and without further warrant or appointment.

The ex officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached to
his principal office.286

V. POWERS OF THE PRESIDENT

The Constitution of the Philippines makes the President not only the executive
but also the administrative head of the government. Executive power refers to the
legal and political function of the President involving the exercise of discretion.
Administrative power, on the other hand, concerns itself with the work of applying
policies and enforcing orders as determined by proper governmental organs. These
two functions are often confused by the public: but they are distinct from each
other. The President as the executive authority has the duty of supervising the
enforcement of laws for the maintenance of general peace and public order. As
administrative head, his duty is to see that every government office is managed and
maintained properly by the persons in charge of it in accordance with pertinent laws
and regulations.287 Corollary to these powers is the power to promulgate rules and
issuances that would ensure a more efficient management of the executive branch,
for so long as such issuances are not contrary to law.

As head of the Executive Department, the President is the Chief Executive. He


represents the government as a whole and sees to it that all laws are enforced by
the officials and employees of his department. He has control over the executive
department, bureaus and offices. This means that he has the authority to assume
directly the functions of the executive department, bureau and office or interfere
with the discretion of its officials. Corollary to the power of control, the President
also has the duty of supervising the enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted administrative power over
bureaus and offices under his control to enable him to discharge his duties
effectively.288

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VA. Power of Control

The President, as Chief Executive, is granted full control over the Executive
Department to ensure the enforcement of the laws. Section 17, Article VII of the
Constitution provides:

Section 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.

The presidential power of control is confirmed in Section 1, Chapter 1, Title I,


Book III of Executive Order 292 (Administrative Code of 1987).

To begin with, one need only refer to the fundamentally accepted principle in
Constitutional Law that the President has control of all executive departments,
bureaus, and offices. This presidential power of control over the executive branch of
government extends over all executive officers from Cabinet Secretary to the
lowliest clerk and has been held to mean "the power of [the President] to alter or
modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of
the latter." It is said to be at the very "heart of the meaning of Chief Executive." 289

Under our system of government all executive departments, bureaus and


offices are under the control of the President of the Philippines. The presidential
power of control over the executive branch of government extends to all executive
employees from Cabinet Secretary to the lowliest clerk. The constitutional vesture
of this power in the President is self-executing and does not require statutory
implementation, nor may its exercise be limited, much less withdrawn, by the
legislature.

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Executive officials who are subordinate to the President should not trifle with
the Presidents constitutional power of control over the executive branch. There is
only one Chief Executive who directs and controls the entire executive branch, and
all other executive officials must implement in good faith his directives and orders.
This is necessary to provide order, efficiency and coherence in carrying out the
plans, policies and programs of the executive branch. 290

Equally well accepted, as a corollary rule to the control powers of the


President, is the "Doctrine of Qualified Political Agency". As the President cannot be
expected to exercise his control powers all at the same time and in person, he will
have to delegate some of them to his Cabinet members.

Under this doctrine, which recognizes the establishment of a single executive,


"all executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and
agents of the Chief Executive, and, except in cases where the Chief Executive is
required by the Constitution or law to act in person on the exigencies of the
situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the
executive departments, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business, unless disapproved or
reprobated by the Chief Executive presumptively the acts of the Chief Executive."

Thus, and in short, "the President's power of control is directly exercised by


him over the members of the Cabinet who, in turn, and by his authority, control the
bureaus and other offices under their respective jurisdictions in the executive
department."291

Lastly, the President shall ensure that the laws be faithfully executed. This
command to the President is referred to as the faithful execution clause. The
faithful execution clause is best construed as an obligation imposed on the
President, not a separate grant of power. It simply underscores the rule of law and,
corollarily, the cardinal principle that the President is not above the laws but is
obliged to obey and execute them. This is precisely why the law provides that
"administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. 292

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VB. Ordinance Power

The President has inherent ordinance powers covering the executive branch
as part of the power of executive control. The President is granted an Ordinance
Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of
1987). The President may issue any of the following:

Sec. 2. Executive Orders. Acts of the President providing for rules of a


general or permanent character in implementation or execution of constitutional or
statutory powers shall be promulgated in executive orders.

Sec. 3. Administrative Orders. Acts of the President which relate to


particular aspect of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.

Sec. 4. Proclamations. Acts of the President fixing a date or declaring a


status or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.

Sec. 5. Memorandum Orders. Acts of the President on matters of


administrative detail or of subordinate or temporary interest which only concern a
particular officer or office of the Government shall be embodied in memorandum
orders.

Sec. 6. Memorandum Circulars. Acts of the President on matters relating to


internal administration, which the President desires to bring to the attention of all or
some of the departments, agencies, bureaus or offices of the Government, for
information or compliance, shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. Acts and commands of the President in


his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be
issued as general or special orders.

In David v. Macapagal-Arroyo,293 the issue involved is whether or not it is


within the domain of President Arroyo to promulgate decrees. It was ruled that
President Arroyos ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973 Constitution.

This Court rules that the assailed PP 1017 is unconstitutional insofar as it


grants President Arroyo the authority to promulgate "decrees." Legislative power is
peculiarly within the province of the Legislature. Section 1, Article VI categorically
states that "[t]he legislative power shall be vested in the Congress of the Philippines

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which shall consist of a Senate and a House of Representatives." To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify President
Arroyos exercise of legislative power by issuing decrees. Hence, President Arroyo
has no authority to enact decrees. It follows that these decrees are void and,
therefore, cannot be enforced.

VC. Power over Aliens

Sections 8-9, Chapter 3, Title I, Book III of the Administrative Code expressly
provides:

Section 8. Power to Deport. - The President shall have the power to deport
aliens subject to the requirements of due process.

Section 9. Power to Change Non-Immigrant Status of Aliens. - The President,


subject to the provisions of law, shall have the power to change the status of non-
immigrants by allowing them to acquire permanent residence status without
necessity of visa.

Section 10. Power to Countermand Decisions of the Board of Commissioners


of the Bureau of Immigration. - The decision of the Board of Commissioners which
has jurisdiction over all deportation cases shall become final and executory after
thirty (30) days from promulgation, unless within such period the President shall
order the contrary.

Section 11. Power over Aliens under the General Principles of International
Law. - The President shall exercise with respect to aliens in the Philippines such
powers as are recognized by the generally accepted principles of international law.

Every sovereign power has the inherent power to exclude aliens from its
territory upon such grounds as it may deem proper for its self-preservation or public
interest. The power to deport an alien is an act of the State. It is an act by or under
the authority of the sovereign power. It is a police measure against undesirable
aliens whose presence in the country is found to be injurious to the public good and
domestic tranquility of the people.294

The power to deport or expel aliens is an attribute of sovereignty. Such power


is planted on the "accepted maxim of international law, that every sovereign nation
has the power, as inherent in sovereignty, and essential to self-preservation, to
forbid the entrance of foreigners within its dominions." 295 The right of a country to

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expel or deport aliens because their continued presence is detrimental to public
welfare is absolute and unqualified.296

The power to deport or expel foreigners pertains to the political department


of the government. Even in those jurisdictions where the conditions under which
persons may be deported are left to the courts to decide, even then the actual
deportations must be carried into operation by the executive department of the
government. The courts have no machinery for carrying into operation their orders
except through the executive department.297

Under Section 8, Chapter 3, Title I, Book III of Executive Order No. 292, the
power to deport aliens is vested on the President of the Philippines, subject to the
requirements of due process. The Immigration Commissioner is vested with
authority to deport aliens under Section 37 of the Philippine Immigration Act of
1940, as amended.298 Although a deportation proceeding does not partake of the
nature of a criminal action, however, considering that it is a harsh and extraordinary
administrative proceeding affecting the freedom and liberty of a person, the
constitutional right of such person to due process should not be denied. 299

The power to deport aliens is lodged in the President of the Republic of the
Philippines. As an act of state, it is vested in the Executive by virtue of his office,
subject only to the regulations prescribed in Section 69 of the Revised
Administrative Code or to such future legislation as may be promulgated on the
subject. There is no provision in the Constitution nor act of the legislature defining
the power, as it is evident that it is the intention of the law to grant to the Chief
Executive full discretion to determine whether an alien's residence in the country is
so undesirable as to affect or injure the security, welfare or interest of the state. The
adjudication of facts upon which deportation is predicated also devolves on the
Chief Executive whose decision is final and executory. 300

VD. Power of Eminent Domain, Recovery of Ill-gotten Wealth


The current effective law on delegated authority to exercise the power of
eminent domain is found in Section 12, Chapter 4, Title I, Book III of the
Administrative Code of 1987, which provides:

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Section 12. Power of Eminent Domain The President shall determine when
it is necessary or advantageous to exercise the power of eminent domain in behalf
of the National Government, and direct the Solicitor General, whenever he deems
the action advisable, to institute expropriation proceedings in the proper court.

However, the exercise of the Presidents delegated power of eminent domain


is not without limitations. Just like the State, through Congress, the expropriation of
private property is subject to the payment of just compensation. Hence, the
pertinent provisions relating to the payment of just compensation are expressly
provided for under the 1987 Philippine Constitution, thus:

Section 9, Article III: Private property shall not be taken for public use without
just compensation;

Section 18, Article XII: The State may, in the interest of national welfare or
defense, establish and operate vital industries and, upon payment of just
compensation, transfer to public ownership utilities and other private enterprises to
be operated by the Government; and

Section 4, Article XIII: The State shall, by law, undertake an agrarian reform
program founded on the right of farmers and regular farmworkers who are landless,
to own directly or collectively the lands they till or, in the case of other farmworkers,
to receive a just share of the fruits thereof. To this end, the State shall encourage
and undertake the just distribution of all agricultural lands, subject to such priorities
and reasonable retention limits as the Congress may prescribe, taking into account
ecological, developmental, or equity considerations, and subject to the payment of
just compensation. In determining retention limits, the State shall respect the right
of small landowners. The State shall further provide incentives for voluntary land-
sharing.

As regards the power of the President to recover ill-gotten wealth, Section 15,
Chapter 4, Title I Book III of the Administrative Code is explicitly worded, thus:

Section 15. Power over Ill-gotten Wealth. - The President shall direct the
Solicitor General to institute proceedings to recover properties unlawfully acquired
by public officials or employees, from them or from their nominees or transferees.

Within the period fixed in, or any extension thereof authorized by, the
Constitution, the President shall have the authority to recover ill-gotten properties
amassed by the leaders and supporters of the previous regime and protect the
interest of the people through orders of sequestration or freezing of assets or
accounts.

127
Further, in order not to defeat the claim of the State over ill-gotten wealth by
mere lapse of time, Section 15, Article XI of the 1987 Philippine Constitution
declares that [t]he right of the State to recover properties unlawfully acquired by
public officials or employees, from them or from their nominees or transferees, shall
not be barred by prescription, laches, or estoppel.

Eminent domain is the right or power of a sovereign state to appropriate


private property to particular uses to promote public welfare. It is an indispensable
attribute of sovereignty; a power grounded in the primary duty of government to
serve the common need and advance the general welfare. Thus, the right of
eminent domain appertains to every independent government without the necessity
for constitutional recognition. The provisions found in modern constitutions of
civilized countries relating to the taking of property for the public use do not by
implication grant the power to the government, but limit a power which would
otherwise be without limit. Thus, our own Constitution provides that "private
property shall not be taken for public use without just compensation. Furthermore,
the due process and equal protection clauses act as additional safeguards against
the arbitrary exercise of this governmental power. 300

The right of eminent domain is "the ultimate right of the sovereign power to
appropriate, not only the public but the private property of all citizens within the
territorial sovereignty, to public purpose." But the exercise of such right is not
unlimited, for two mandatory requirements should underlie the Governments
exercise of the power of eminent domain, namely: (1) that it is for a particular public
purpose; and (2) that just compensation be paid to the property owner. These
requirements partake the nature of implied conditions that should be complied with
to enable the condemnor to keep the property expropriated. 301

Public use, in common acceptation, means "use by the public." However, the
concept has expanded to include utility, advantage or productivity for the benefit of
the public. To be valid, the taking must be for public use. The meaning of the term
"public use" has evolved over time in response to changing public needs and
exigencies. Public use which was traditionally understood as strictly limited to actual
"use by the public" has already been abandoned. "Public use" has now been held to
be synonymous with "public interest," "public benefit," and "public convenience." 302

Just compensation refers to the full and fair equivalent of the property taken
from the owner. To be "just," the compensation must be real, substantial, full and
ample.303 It is the sum equivalent to the market value of the property, broadly
described to be the price fixed by the seller in open market in the usual and
ordinary course of legal action and competition, or the fair value of the property as
between one who receives and one who desires to sell. It is fixed at the time of the
actual taking by the State.304 To be just, the compensation must not only be the
correct amount to be paid; it must also be paid within a reasonable time from the

128
time the land is taken from the owner. 305 To be "just," must also be made without
delay.306 Without prompt payment, compensation cannot be considered "just" for the
property owner is made to suffer the consequence of being immediately deprived of
his land while being made to wait for a decade or more before actually receiving the
amount necessary to cope with his loss.307

The power of eminent domain is essentially legislative in nature. It is firmly


settled, however, that such power may be validly delegated to local government
units, other public entities and public utilities, although the scope of this delegated
legislative power is necessarily narrower than that of the delegating authority and
may only be exercised in strict compliance with the terms of the delegating law. 308

The very nature of eminent domain, as an inherent power of the State,


dictates that the right to exercise the power be absolute and unfettered. The scope
of eminent domain is plenary and, like police power, can "reach every form of
property which the State might need for public use. All separate interests of
individuals in property are held of the government under this tacit agreement or
implied reservation. Notwithstanding the grant to individuals, the eminent domain,
the highest and most exact idea of property, remains in the government, or in the
aggregate body of the people in their sovereign capacity; and they have the right to
resume the possession of the property whenever the public interest requires it. 309

The exercise of the power of eminent domain necessarily involves a


derogation of a fundamental right. It greatly affects a landowners right to private
property which is a constitutionally protected right necessary for the preservation
and enhancement of personal dignity and is intimately connected with the rights to
life and liberty. Thus, whether such power is exercised directly by the State or by its
authorized agents, the exercise of such power must undergo painstaking scrutiny. 310
Since the exercise of the power of eminent domain affects an individual's right to
private property, the need for its circumspect operation cannot be
overemphasized.311

The exercise of the right of eminent domain, whether directly by the State or
by its authorized agents, is necessarily in derogation of private rights. It is one of
the harshest proceedings known to the law. Consequently, when the sovereign
delegates the power to a political unit or agency, a strict construction will be given
against the agency asserting the power. The authority to condemn is to be strictly
construed in favor of the owner and against the condemnor. When the power is
granted, the extent to which it may be exercised is limited to the express terms or
clear implication of the statute in which the grant is contained. 312

As to the concept and genesis of ill-gotten wealth in the Philippine setting, a


brief review of the Philippine law and jurisprudence pertinent to ill-gotten wealth
should furnish an illuminating backdrop for further discussion.

129
In the immediate aftermath of the peaceful 1986 EDSA Revolution, the
administration of President Corazon C. Aquino saw to it, among others, that rules
defining the authority of the government and its instrumentalities were promptly
put in place. It is significant to point out, however, that the administration likewise
defined the limitations of the authority.

The first official issuance of President Aquino, which was made on February
28, 1986, or just two days after the EDSA Revolution, was Executive Order (E.O.) No.
1, which created the Presidential Commission on Good Government (PCGG).
Ostensibly, E.O. No. 1 was the first issuance in light of the EDSA Revolution having
come about mainly to address the pillage of the nations wealth by President
Marcos, his family, and cronies.

E.O. No. 1 contained only two WHEREAS Clauses, to wit:

WHEREAS, vast resources of the government have been amassed by former


President Ferdinand E. Marcos, his immediate family, relatives, and close associates
both here and abroad;

WHEREAS, there is an urgent need to recover all ill-gotten wealth;

Paragraph (4) of E.O. No. 2 further required that the wealth, to be ill-gotten,
must be "acquired by them through or as a result of improper or illegal use of or the
conversion of funds belonging to the Government of the Philippines or any of its
branches, instrumentalities, enterprises, banks or financial institutions, or by taking
undue advantage of their official position, authority, relationship, connection or
influence to unjustly enrich themselves at the expense and to the grave damage
and prejudice of the Filipino people and the Republic of the Philippines."

Although E.O. No. 1 and the other issuances dealing with ill-gotten wealth
(i.e., E.O. No. 2, E.O. No. 14, and E.O. No. 14-A) only identified the subject matter of
ill-gotten wealth and the persons who could amass ill-gotten wealth and did not
include an explicit definition of ill-gotten wealth, we can still discern the meaning
and concept of ill-gotten wealth from the WHEREAS Clauses themselves of E.O. No.
1, in that ill-gotten wealth consisted of the "vast resources of the government"
amassed by "former President Ferdinand E. Marcos, his immediate family, relatives
and close associates both here and abroad." It is clear, therefore, that ill-gotten
wealth would not include all the properties of President Marcos, his immediate
family, relatives, and close associates but only the part that originated from the
"vast resources of the government."

The meaning and concept of ill-gotten wealth was further elaborated. Until it
can be determined, through appropriate judicial proceedings, whether the property
was in truth "ill-gotten," i.e., acquired through or as a result of improper or illegal

130
use of or the conversion of funds belonging to the Government or any of its
branches, instrumentalities, enterprises, banks or financial institutions, or by taking
undue advantage of official position, authority, relationship, connection or influence,
resulting in unjust enrichment of the ostensible owner and grave damage and
prejudice to the State. And this, too, is the sense in which the term is commonly
understood in other jurisdictions.

"Ill-gotten wealth is that acquired through or as a result of improper or illegal


use of or the conversion of funds belonging to the Government or any of its
branches, instrumentalities, enterprises, banks or financial institutions, or by taking
undue advantage of official position, authority, relationship, connection or influence,
resulting in unjust enrichment of the ostensible owner and grave damage and
prejudice to the State. And this, too, is the sense in which the term is commonly
understood in other jurisdiction."

Ill-gotten wealth, by its very nature, assumes a public character. Ill-gotten


wealth refers to assets and properties purportedly acquired, directly or indirectly,
by former President Marcos, his immediate family, relatives and close associates
through or as a result of their improper or illegal use of government funds or
properties; or their having taken undue advantage of their public office; or their use
of powers, influence or relationships, "resulting in their unjust enrichment and
causing grave damage and prejudice to the Filipino people and the Republic of the
Philippines."Clearly, the assets and properties referred to supposedly originated
from the government itself. To all intents and purposes, therefore, they belong to
the people. As such, upon reconveyance they will be returned to the public treasury,
subject only to the satisfaction of positive claims of certain persons as may be
adjudged by competent courts. Another declared overriding consideration for the
expeditious recovery of ill-gotten wealth is that it may be used for national
economic recovery.

All these judicial pronouncements demand two concurring elements to be


present before assets or properties were considered as ill-gotten wealth, namely: (a)
they must have "originated from the government itself," and (b) they must have
been taken by former President Marcos, his immediate family, relatives, and close
associates by illegal means.

But settling the sources and the kinds of assets and property covered by E.O.
No. 1 and related issuances did not complete the definition of ill-gotten wealth. The
further requirement was that the assets and property should have been amassed by
former President Marcos, his immediate family, relatives, and close associates both
here and abroad. In this regard, identifying former President Marcos, his immediate
family, and relatives was not difficult, but identifying other persons who might be
the close associates of former President Marcos presented an inherent difficulty,
because it was not fair and just to include within the term close associates everyone

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who had had any association with President Marcos, his immediate family, and
relatives.

Again, through several rulings, the Court became the arbiter to determine
who were the close associates within the coverage of E.O. No. 1.

Government officials or employees who served during the Marcos


administration were not necessarily among the persons covered by the term close
subordinate or close associate of former President Marcos by reason alone of their
having served as government officials or employees during the Marcos
administration. It does not suffice that the respondent is or was a government
official or employee during the administration of former Pres. Marcos. There must be
a prima facie showing that the respondent unlawfully accumulated wealth by virtue
of his close association or relation with former Pres. Marcos and/or his wife. Also,
one may not be considered as close associate as the term was used in E.O. No. 1
just because he had served as the President and General Manager of the GSIS
during the Marcos administration. In addition, a Commanding General of the
Philippine Army during the Marcos administration did not automatically make him a
subordinate of former President Ferdinand Marcos as this term is used in Executive
Order Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association
with former President Marcos.

It is well to point out, consequently, that the distinction laid down by E.O. No.
1 and its related issuances, and expounded by relevant judicial pronouncements
unavoidably required competent evidentiary substantiation made in appropriate
judicial proceedings to determine: (a) whether the assets or properties involved had
come from the vast resources of government, and (b) whether the individuals
owning or holding such assets or properties were close associates of President
Marcos. The requirement of competent evidentiary substantiation made in
appropriate judicial proceedings was imposed because the factual premises for the
reconveyance of the assets or properties in favor of the government due to their
being ill-gotten wealth could not be simply assumed.

As regards the Governments right and duty to recover all ill-gotten wealth,
there can be no debate about the validity and eminent propriety of the
Governments plan "to recover all ill-gotten wealth.

Neither can there be any debate about the proposition that assuming the
above described factual premises of the Executive Orders and Proclamation No. 3 to
be true, to be demonstrable by competent evidence, the recovery from Marcos, his
family and his minions of the assets and properties involved, is not only a right but
a duty on the part of Government.

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But however plain and valid that right and duty may be, still a balance must
be sought with the equally compelling necessity that a proper respect be accorded
and adequate protection assured, the fundamental rights of private property and
free enterprise which are deemed pillars of a free society such as ours, and to which
all members of that society may without exception lay claim.

Democracy, as a way of life enshrined in the Constitution, embraces as its


necessary components freedom of conscience, freedom of expression, and freedom
in the pursuit of happiness. Along with these freedoms are included economic
freedom and freedom of enterprise within reasonable bounds and under proper
control. Evincing much concern for the protection of property, the Constitution
distinctly recognizes the preferred position which real estate has occupied in law for
ages. Property is bound up with every aspect of social life in a democracy as
democracy is conceived in the Constitution. The Constitution realizes the
indispensable role which property, owned in reasonable quantities and used
legitimately, plays in the stimulation to economic effort and the formation and
growth of a solid social middle class that is said to be the bulwark of democracy and
the backbone of every progressive and happy country.

Consequently, the factual premises of the Executive Orders cannot simply be


assumed. They will have to be duly established by adequate proof in each case, in a
proper judicial proceeding, so that the recovery of the ill-gotten wealth may be
validly and properly adjudged and consummated; although there are some who
maintain that the fact that an immense fortune, and "vast resources of the
government have been amassed by former President Ferdinand E. Marcos, his
immediate family, relatives, and close associates both here and abroad," and they
have resorted to all sorts of clever schemes and manipulations to disguise and hide
their illicit acquisitions is within the realm of judicial notice, being of so extensive
notoriety as to dispense with proof thereof. Be this as it may, the requirement of
evidentiary substantiation has been expressly acknowledged, and the procedure to
be followed explicitly laid down, in Executive Order No. 14.

Accordingly, the Republic should furnish to the Sandiganbayan in proper


judicial proceedings the competent evidence proving who were the close associates
of President Marcos who had amassed assets and properties that would be rightly
considered as ill-gotten wealth.313

On the issue of prescription, Art. XI, Sec. 15, of the Constitution provides that
[t]he right of the State to recover properties unlawfully acquired by public officials
or employees, from them or from their nominees as transferees, shall not be barred
by prescription, laches, or estoppel." This provision does seem to indicate that what
is imprescriptible is the corresponding civil action to recover "ill-gotten" wealth but
not the criminal action that may relate thereto. The criminal action, i.e., violation of
Section 3 (c) and (g), Republic Act (R.A.) No. 3019, can prescribe conformably with

133
the pertinent statute applicable which, in this instance, is Batas Pambansa Blg. 195,
effective as of 16 March 1982, providing for a fifteen-year prescriptive period and
thereby modifying to the above extent the ten-year period prescribed under R.A. No.
3019.

It is well-nigh impossible for the State, the aggrieved party, to have known
the violations of R.A. No. 3019 at the time the questioned transactions were made
because, as alleged, the public officials concerned connived or conspired with the
"beneficiaries of the loans."314

In cases involving violations of R.A. No. 3019 committed prior to the February
1986 EDSA Revolution that ousted President Ferdinand E. Marcos, we ruled that the
government as the aggrieved party could not have known of the violations at the
time the questioned transactions were made. Moreover, no person would have
dared to question the legality of those transactions. Thus, the counting of the
prescriptive period commenced from the date of discovery of the offense in 1992
after an exhaustive investigation by the Presidential Ad Hoc Committee on Behest
Loans.315

On the issue of estoppel, the general rule is that the State cannot be put in
estoppel by the mistakes or errors of its officials or agents. However, like all general
rules, this is also subject to exception. Estoppels against the public are little
favored. They should not be invoked except in a rare and unusual circumstances,
and may not be invoked where they would operate to defeat the effective operation
of a policy adopted to protect the public. They must be applied with circumspection
and should be applied only in those special cases where the interests of justice
clearly require it. Nevertheless, the government must not be allowed to deal
dishonorably or capriciously with its citizens, and must not play an ignoble part or
do a shabby thing; and subject to limitations, the doctrine of equitable estoppel may
be invoked against public authorities as well as against private individuals. 316

We agree with the statement that the State is immune from estoppel, but this
concept is understood to refer to acts and mistakes of its officials especially those
which are irregular. Although the State's right of action to recover ill-gotten wealth is
not vulnerable to estoppel; it is non sequitur to suggest that a contract, freely and in
good faith executed between the parties thereto is susceptible to disturbance ad
infinitum. A different interpretation will lead to the absurd scenario of permitting a
party to unilaterally jettison a compromise agreement which is supposed to have
the authority of res judicata, and like any other contract, has the force of law
between parties thereto.317

VE. Power of Appointment

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The appointing power of the President is provided in Section 16, Art. VII of the
1987 Philippine Constitution which provides:

Section 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers whose appointments
are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess
of the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproved by the Commission on Appointments or until the
next adjournment of the Congress.

Elaborating on this presidential power of appointment is Sections 16 and 17,


Chapter 5, Title I, Book III of the Administrative Code, viz.:
Section 16. Power of Appointment. - The President shall exercise the power to
appoint such officials as provided for in the Constitution and laws.

Section 17. Power to Issue Temporary Designation. -

1. The President may temporarily designate an officer already in the


government service or any other competent person to perform the
functions of an office in the executive branch, appointment to which is
vested in him by law, when: (a) the officer regularly appointed to the
office is unable to perform his duties by reason of illness, absence or any
other cause; or (b) there exists a vacancy;

2. The person designated shall receive the compensation attached to the


position, unless he is already in the government service in which case he
shall receive only such additional compensation as, with his existing
salary, shall not exceed the salary authorized by law for the position filled.
The compensation hereby authorized shall be paid out of the funds
appropriated for the office or agency concerned.

3. In no case shall a temporary designation exceed one (1) year.

135
There is a clear distinction between appointment and designation.
Appointment may be defined as the selection, by the authority vested with the
power, of an individual who is to exercise the functions of a given office. When
completed, usually with its confirmation, the appointment results in security of
tenure for the person chosen unless he is replaceable at pleasure because of the
nature of his office. Designation, on the other hand, connotes merely the imposition
by law of additional duties on an incumbent official. It is said that appointment is
essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it


likewise involves the naming of a particular person to a specified public office. That
is the common understanding of the term. However, where the person is merely
designated and not appointed, the implication is that he shall hold the office only in
a temporary capacity and may be replaced at will by the appointing authority. In
this sense, the designation is considered only an acting or temporary appointment,
which does not confer security of tenure on the person named. 318

The power to appoint is the prerogative of the President, except in those


instances when the Constitution provides otherwise. Usurpation of this
fundamentally Executive power by the Legislative and Judicial branches violates the
system of separation of powers that inheres in our democratic republican
government.

Under Section 16, Article VII of the 1987 Constitution, the President appoints
three groups of officers. The first group refers to the heads of the Executive
departments, ambassadors, other public ministers and consuls, officers of the
armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in the President by the Constitution. The second group
refers to those whom the President may be authorized by law to appoint. The third
group refers to all other officers of the Government whose appointments are not
otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers
whose appointments Congress may by law vest in the heads of departments,
agencies, commissions, or boards. The present case involves the interpretation of
Section 16, Article VII of the 1987 Constitution with respect to the appointment of
this fourth group of officers.

The President appoints the first group of officers with the consent of the
Commission on Appointments. The President appoints the second and third groups
of officers without the consent of the Commission on Appointments. The President
appoints the third group of officers if the law is silent on who is the appointing
power, or if the law authorizing the head of a department, agency, commission, or
board to appoint is declared unconstitutional. 319

In Pimentel v. Executive Secretary,320 the issue raised is whether or not the


President has authority to appoint acting department secretaries other than the
Undersecretary. It was contended that "in case of a vacancy in the Office of a
Secretary, it is only an Undersecretary who can be designated as Acting Secretary."
The argument on Section 10, Chapter 2, Book IV of Executive Order No. 292 ("EO

136
292"), which enumerates the powers and duties of the undersecretary. Paragraph 5
of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary
shall:

xxx

5. Temporarily discharge the duties of the Secretary in the latters absence


or inability to discharge his duties for any cause or in case of vacancy of
the said office, unless otherwise provided by law. Where there are more
than one Undersecretary, the Secretary shall allocate the foregoing
powers and duties among them. The President shall likewise make the
temporary designation of Acting Secretary from among them; and

xxx

It was ruled that [t]he power to appoint is essentially executive in nature, and
the legislature may not interfere with the exercise of this executive power except in
those instances when the Constitution expressly allows it to interfere. Limitations on
the executive power to appoint are construed strictly against the legislature. The
scope of the legislatures interference in the executives power to appoint is limited
to the power to prescribe the qualifications to an appointive office. Congress cannot
appoint a person to an office in the guise of prescribing qualifications to that office.
Neither may Congress impose on the President the duty to appoint any particular
person to an office.

However, even if the Commission on Appointments is composed of members


of Congress, the exercise of its powers is executive and not legislative. The
Commission on Appointments does not legislate when it exercises its power to give
or withhold consent to presidential appointments. The Commission on Appointments
is a creature of the Constitution. Although its membership is confined to members
of Congress, said Commission is independent of Congress. The powers of the
Commission do not come from Congress, but emanate directly from the
Constitution. Hence, it is not an agent of Congress. In fact, the functions of the
Commissioner are purely executive in nature.

The essence of an appointment in an acting capacity is its temporary nature.


It is a stop-gap measure intended to fill an office for a limited time until the
appointment of a permanent occupant to the office. In case of vacancy in an office
occupied by an alter ego of the President, such as the office of a department
secretary, the President must necessarily appoint an alter ego of her choice as
acting secretary before the permanent appointee of her choice could assume office.

137
Congress, through a law, cannot impose on the President the obligation to
appoint automatically the undersecretary as her temporary alter ego. An alter ego,
whether temporary or permanent, holds a position of great trust and confidence.
Congress, in the guise of prescribing qualifications to an office, cannot impose on
the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is in


session. Since a department secretary is the alter ego of the President, the acting
appointee to the office must necessarily have the Presidents confidence. Thus, by
the very nature of the office of a department secretary, the President must appoint
in an acting capacity a person of her choice even while Congress is in session. That
person may or may not be the permanent appointee, but practical reasons may
make it expedient that the acting appointee will also be the permanent appointee.

The law expressly allows the President to make such acting appointment.
Section 17, Chapter 5, Title I, Book III of EO 292 states that "[t]he President may
temporarily designate an officer already in the government service or any other
competent person to perform the functions of an office in the executive branch."
Thus, the President may even appoint in an acting capacity a person not yet in the
government service, as long as the President deems that person competent.

In distinguishing ad interim appointments from appointments in an acting


capacity, a noted textbook writer on constitutional law has observed: Ad-interim
appointments must be distinguished from appointments in an acting capacity. Both
of them are effective upon acceptance. But ad-interim appointments are extended
only during a recess of Congress, whereas acting appointments may be extended
any time there is a vacancy. Moreover ad-interim appointments are submitted to the
Commission on Appointments for confirmation or rejection; acting appointments are
not submitted to the Commission on Appointments. Acting appointments are a way
of temporarily filling important offices but, if abused, they can also be a way of
circumventing the need for confirmation by the Commission on Appointments.

VF. General Supervision over Local Governments


Section 4 of Article X of the 1987 Philippine Constitution confines the
President's power over local governments to one of general supervision. It reads as
follows:

Sec. 4. The President of the Philippines shall exercise general supervision


over local governments. x x x

The same conferment of presidential supervisory power over local


government is also found under Section 18, Chapter 6, Book III of the Administrative
Code of 1987 and Section 25(a) of Republic Act No. 7160, otherwise known as
Local Government Code of 1991.

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The Constitution vests the President with the power of supervision, not
control, over local government units (LGUs). Such power enables him to see to it
that LGUs and their officials execute their tasks in accordance with law.

In administrative law, supervision means overseeing or the power or


authority of an officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them, the former may take such action or step as
prescribed by law to make them perform their duties. Control, on the other hand,
means the power of an officer to alter or modify or nullify or set aside what a
subordinate officer has done in the performance of his duties and to substitute the
judgment of the former for that of the latter.

The Chief Executive wielded no more authority than that of checking whether
local governments or their officials were performing their duties as provided by the
fundamental law and by statutes. He cannot interfere with local governments, so
long as they act within the scope of their authority. Supervisory power, when
contrasted with control, is the power of mere oversight over an inferior body; it does
not include any restraining authority over such body.

The difference between control and supervision was further delineated.


Officers in control lay down the rules in the performance or accomplishment of an
act. If these rules are not followed, they may, in their discretion, order the act
undone or redone by their subordinates or even decide to do it themselves. On the
other hand, supervision does not cover such authority. Supervising officials merely
see to it that the rules are followed, but they themselves do not lay down such
rules, nor do they have the discretion to modify or replace them. If the rules are not
observed, they may order the work done or redone, but only to conform to such
rules. They may not prescribe their own manner of execution of the act. They have
no discretion on this matter except to see to it that the rules are followed.

Under our present system of government, executive power is vested in the


President. The members of the Cabinet and other executive officials are merely alter
egos. As such, they are subject to the power of control of the President, at whose
will and behest they can be removed from office; or their actions and decisions
changed, suspended or reversed. In contrast, the heads of political subdivisions are
elected by the people. Their sovereign powers emanate from the electorate, to
whom they are directly accountable. By constitutional fiat, they are subject to the
Presidents supervision only, not control, so long as their acts are exercised within
the sphere of their legitimate powers. By the same token, the President may not
withhold or alter any authority or power given them by the Constitution and the
law.321

The 1935, 1973 and 1987 Constitutions uniformly differentiate the Presidents
power of supervision over local governments and his power of control of the
executive departments, bureaus and offices. Similar to the counterpart provisions in
the earlier Constitutions, the provision in the 1987 Constitution provision has been
interpreted to exclude the power of control. 322

The President's power of general supervision over local government units is


conferred upon him by the Constitution. The power of supervision is defined as "the

139
power of a superior officer to see to it that lower officers perform their functions in
accordance with law." This is distinguished from the power of control or "the power
of an officer to alter or modify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the former for the
latter."323 The power of control gives the President the power to revise or reverse the
acts or decisions of a subordinate officer involving the exercise of discretion. 324

Supervision has been defined as "overseeing, or the power or authority of an


officer to see that subordinate officers perform their duties, and to take such action
as prescribed by law to compel his subordinates to perform their duties. The
Constitution permits the President to wield no more authority than that of checking
whether a local government or its officers perform their duties as provided by
statutory enactments.325

The extent of supervisory power has been clearly defined such as when the
supervisor or superintendent merely sees to it that the rules are followed, but he
himself does not lay down such rules, nor does he have the discretion to modify or
replace them. If the rules are not observed, he may order the work done or re-done
but only to conform to the prescribed rules. He may not prescribe his own manner
for the doing of the act. He has no judgment on this matter except to see that the
rules are followed.326

VG. Residual Powers

Residual powers are provided in Book III, Title I, Chapter 7, Section 20 of the
RAC, thus:

Section 20. Residual Powers. - Unless Congress provides otherwise, the


President shall exercise such other powers and functions vested in the President
which are provided for under the laws and which are not specifically enumerated
above, or which are not delegated by the President in accordance with law.

The Constitution provides that "the executive power shall be vested in the
President of the Philippines." However, it does not define what is meant by
executive power" although in the same article it touches on the exercise of certain
powers by the President, i.e., the power of control over all executive departments,
bureaus and offices, the power to execute the laws, the appointing power, the
powers under the commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with the concurrence of
Congress, the power to contract or guarantee foreign loans, the power to enter into
treaties or international agreements, the power to submit the budget to Congress,
and the power to address Congress. 327

It would not be accurate, however, to state that "executive power" is the


power to enforce the laws, for the President is head of state as well as head of
government and whatever powers inhere in such positions pertain to the office
unless the Constitution itself withholds it. Furthermore, the Constitution itself
provides that the execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the execution of any
provision of law, e.g., his power over the country's foreign relations.

140
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it maintains
intact what is traditionally considered as within the scope of "executive power."
Corollarily, the powers of the President cannot be said to be limited only to the
specific powers enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated. 328

It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive. It would indeed be a folly to
construe the powers of a branch of government to embrace only what are
specifically mentioned in the Constitution. To the President, the problem is one of
balancing the general welfare and the common good against the exercise of rights
of certain individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of the President,
as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power
of the President but also his duty to do anything not forbidden by the Constitution or
the laws that the needs of the nation demand. It is a power borne by the President's
duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully executed.

It cannot be denied that the President, upon whom executive power is vested,
has unstated residual powers which are implied from the grant of executive power
and which are necessary for her to comply with her duties under the Constitution.
The powers of the President are not limited to what are expressly enumerated in the
article on the Executive Department and in scattered provisions of the Constitution.

This is so, notwithstanding the avowed intent of the members of the


Constitutional Commission of 1986 to limit the powers of the President as a reaction
to the abuses under the regime of Mr. Marcos, for the result was a limitation of
specific power of the President, particularly those relating to the commander-in-
chief clause, but not a diminution of the general grant of executive power. 329

The Presidents power to reorganize the executive branch is also an exercise


of his residual powers under Section 20, Title I, Book III of E.O. No. 292 which grants
the President broad organization powers to implement reorganization measures. 330
Applying the doctrine of qualified political agency, the power of the President to
reorganize the National Government may validly be delegated to his cabinet
members exercising control over a particular executive department. The President,
through his duly constituted political agent and alter ego, the Department Secretary
may legally and validly decree the reorganization of the Department. The exercise
of this authority by the Department Secretary, as an alter ego, is presumed to be
the acts of the President for the latter had not expressly repudiated the same. 331

VI. ORGANIZATION AND FUNCTIONS:


OFFICES IN THE OFFICE OF THE PRESIDENT PROPER
Sections 21-23, Chapter 8 on Organization of the Office of the President, Title
II, Book III of the Administrative Code of 1987 provides:

141
Section 21. Organization. - The Office of the President shall consist of the
Office of the President Proper and the agencies under it.

Section 22. Office of the President Proper. -

1. The Office of the President Proper shall consist of the Private Office, the
Executive Office, the Common Staff Support System, and the Presidential
Special Assistants/Advisers System;

2. The Executive Office refers to the Offices of the Executive Secretary,


Deputy Executive Secretaries and Assistant Executive Secretaries;

3. The Common Staff Support System embraces the offices or units under
the general categories of development and management, general
government administration and internal administration;

xxx

Section 23. The Agencies under the Office of the President. - The agencies
under the Office of the President refer to those offices placed under the
chairmanship of the President, those under the supervision and control of the
President, those under the administrative supervision of the Office of the President,
those attached to it for policy and program coordination, and those that are not
placed by law or order creating them under any specific department.

The Office of the President is the nerve center of the Executive Branch. To
remain effective and efficient, the Office of the President must be capable of being
shaped and reshaped by the President in the manner he deems fit to carry out his
directives and policies. After all, the Office of the President is the command post of
the President.332

Pursuant to Sec 1, Article VII of the 1987 Constitution of the Republic of the
Philippines, the Office of the Presidents mandate, authority and functions emanate

142
from the Presidents power of control over all executive departments, bureaus and
offices, and the Chief Executives constitutional duty to ensure that the laws are
faithfully executed.

Based on said executive powers of the President, the Office of the President
Proper would perform the following vital/core functions:

a. Respond to the specific needs and requirements of the President to


achieve the purposes and objectives of the Office and the other agencies
under it which include those under the chairmanship of the President,
those under the supervision and control of the President, those under the
supervision and control/administrative supervision of the Office of the
President, those attached to it for policy and program coordination and
those not placed by law or order creating them under any special
department;

b. Provide advisory or consultative services to the President in such fields


and under such conditions as the President may determine;

c. Provide technical and administrative support on matters concerning


development and management, general government administration and
internal administration; and

d. Provide direct services to the President and, for this purpose, attend to
functions and matters that are personal and pertain to the first family. 333

VIA. The Private Office

The functions of the Private Office is expressly provided for under Executive
Order No. 292, s. 1987, otherwise known as Administrative Code of 1987, in Section
24, Chapter 9-A, Title III, Book III on Office of the President, which reads:

143
Section 24. Functions of the Private Office. - The Private Office shall provide
direct services to the President and shall for this purpose attend to functions and
matters that are personal or which pertain to the First Family.

VIB. The Executive Office: The Executive Secretary

Sections 25-27, Chapter 9-B, Title III, Book III of Executive Order No. 292,
series of 1987, otherwise known as the Administrative Code of 1987 prescribe the
mandate, composition and functions of the Executive Office, which reads:

Section 25. Declaration of Policy. - The Executive Office shall be fully


responsive to the specific needs and requirements of the President to achieve the
purposes and objectives of the Office.

Section 26. The Executive Secretary, the Deputy Executive Secretaries, and
the Assistant Executive Secretaries. - The Executive Office shall be headed by the
Executive Secretary who shall be assisted by one (1) or more Deputy Executive
Secretaries and one (1) or more Assistant Executive Secretaries.

Section 27. Functions of the Executive Secretary. - The Executive Secretary


shall, subject to the control and supervision of the President, carry out the functions
assigned by law to the Executive Office and shall perform such other duties as may
be delegated to him. He shall:

1. Directly assist the President in the management of the affairs pertaining to


the Government of the Republic of the Philippines;

2. Implement presidential directives, orders and decisions;

3. Decide, for and in behalf of the President, matters not requiring personal
presidential attention;

4. Exercise supervision and control over the various units in the Office of the
President Proper including their internal administrative requirements;

5. Exercise supervision, in behalf of the President, over the various agencies


under the Office of the President;

6. Appoint officials and employees of the Office of the President whose


appointments are not vested in the President;

7. Provide overall coordination in the operation of the Executive Office;

8. Determine and assign matters to the appropriate units in the Office of the
President;

9. Have administrative responsibility for matters in the Office of the President


coming from the various departments and agencies of government;

144
10.Exercise primary authority to sign papers "By authority of the President",
attest executive orders and other presidential issuances unless attestation is
specifically delegated to other officials by him or by the President;

11.Determine, with the President's approval, the appropriate assignment of


offices and agencies not placed by law under any specific executive
department;

12.Provide consultative, research, fact-finding and advisory service to the


President;

13.Assist the President in the performance of functions pertaining to legislation;

14.Assist the President in the administration of special projects;

15.Take charge of matters pertaining to protocol in State and ceremonial


functions;

16.Provide secretarial and clerical services for the President, the Cabinet, the
Council of State, and other advisory bodies to the President

17.Promulgate such rules and regulations necessary to carry out the objectives,
policies and functions of the Office of the President Proper;

18.Perform such other functions as the President may direct.

The Office of the Executive Secretary assists the President in managing the
affairs of government, and ensures coordination and consistency of policy of various
offices and agencies under the Executive Department. The Executive Secretary
provides overall coordination in the operation of the Executive Offices; assists in the
supervision of the Presidential Advisers System and the Private Offices; and
performs task relative to the Office of the Presidents monitoring and oversight
function over agencies under its administrative supervision. 334

The Executive Secretary or his Deputy or Assistant Executive or any cabinet


secretary, who acts and signs By Authority of the President, acts not for himself
but for the President. Thus, acts or contracts done by the Executive Secretary, By
Authority of the President, and not by the President's own hand, is presumed to be
valid and to have been regularly performed in behalf of the President and thus
should be accorded due respect. As head of the Executive Office, the Executive
Secretary is an alter ego of the President.

The personality of the Executive Secretary is in reality but the projection of


that of the President, his acts, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive. One of his myriad functions is "to
exercise primary authority to sign papers "By Authority of the President," attest
executive orders and other presidential issuances unless attestation is specifically
delegated to other officials by him or by the President; assist the President in the

145
administration of special projects; and perform such other functions as the President
may direct."335

The fact is that where the Executive Secretary acts, "By Authority of the
President," his action is that of the President's. Such decision is to be given full faith
and credit. The assumed authority of the Executive Secretary is to be accepted. For,
only the President may rightfully say that the Executive Secretary is not authorized
to do so. Therefore, unless the action taken is "disapproved or reprobated by the
Chief Executive," that remains the act of the Chief Executive. 336

It is correct to say that there are constitutional powers which the President
must exercise in person. However, it is not to so say that the Chief Executive may
not delegate to his Executive Secretary acts which the Constitution does not
command that he perform in person. Reason is not wanting for this view. The
President is not expected to perform in person all the multifarious executive and
administrative functions. The Office of the Executive Secretary is an auxiliary unit
which assists the President. The rule which has thus gained recognition is that under
our constitutional setup the Executive Secretary, who acts for and in behalf and by
authority of the President, has an undisputed jurisdiction to affirm, modify, or even
reverse any order undertaken by the department secretaries and his
subordinates.337

VIC. Common Staff Support System

The various staff units in the Office of the President Proper shall form a
common staff support system and shall be organized along the various tasks of the
Office namely:

1. The Cabinet Secretariat which shall assist the President in the


establishment of agenda topics for the Cabinet deliberations, or facilitate
the discussion of cabinet meetings. It shall have such organization, powers
and functions as are prescribed by law;

2. The Presidential Management Staff (PMS) which shall be the primary


governmental agency directly responsible to the Office of the President for
providing staff assistance in the Presidential exercise of overall
management of the development process. It shall have such organization,
powers and functions as are prescribed by law;

3. General Government Administration Staff which shall provide the


President with staff support on matters concerning general government
administration relative to the operations of the national government
including the provision of legal services, administrative services, staff
work on political and legislative matters, information and assistance to the
general public, measures toward resolution of complaints against public
officials and employees brought to the attention of the Office of the
President and such other matters as the President may assign; and

4. Internal Administrative Staff which shall render auxiliary and support


services for the internal administration of the Office of the President. 338

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VID. Agencies under the Office of the President
The Administrative Code provides that the Office of the President consists of
the Office of the President Proper and the agencies under it. The agencies under the
Office of the President are identified in Section 23, Chapter 8, Title II of the
Administrative Code of 1987:

Sec. 23. The Agencies under the Office of the President.The agencies under
the Office of the President refer to those offices placed under the chairmanship of
the President, those under the supervision and control of the President, those under
the administrative supervision of the Office of the President, those attached to it for
policy and program coordination, and those that are not placed by law or order
creating them under any specific department.

Section 2(4) of the Introductory Provisions of the Administrative Code defines


the term "agency of the government" as follows:

Agency of the Government refers to any of the various units of the


Government, including a department, bureau, office, instrumentality, or
government-owned or controlled corporation, or a local government or a distinct
unit therein.339

In establishing an executive department, bureau or office, the legislature


necessarily ordains an executive agencys position in the scheme of administrative
structure. Such determination is primary, but subject to the Presidents continuing
authority to reorganize the administrative structure. As far as bureaus, agencies or
offices in the executive department are concerned, the power of control may justify
the President to deactivate the functions of a particular office. Or a law may
expressly grant the President the broad authority to carry out reorganization
measures. The Administrative Code of 1987 is one such law:

SEC. 30. Functions of Agencies under the Office of the President. Agencies
under the Office of the President shall continue to operate and function in
accordance with their respective charters or laws creating them, except as
otherwise provided in this Code or by law.

SEC. 31. Continuing Authority of the President to Reorganize his Office. The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to reorganize the
administrative structure of the Office of the President. For this purpose, he may
take any of the following actions:

1. Restructure the internal organization of the Office of the President Proper,


including the immediate Offices, the Presidential Special

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Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating, or merging units thereof or transferring
functions from one unit to another;

2. Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of the
President from other Departments and Agencies; and

3. Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the
President from other departments or agencies.

In carrying out the laws into practical operation, the President is best
equipped to assess whether an executive agency ought to continue operating in
accordance with its charter or the law creating it. This is not to say that the
legislature is incapable of making a similar assessment and appropriate action
within its plenary power. The Administrative Code of 1987 merely underscores the
need to provide the President with suitable solutions to situations on hand to meet
the exigencies of the service that may call for the exercise of the power of control.

The law grants the President this power in recognition of the recurring need
of every President to reorganize his office "to achieve simplicity, economy and
efficiency." The Office of the President is the nerve center of the Executive Branch.
To remain effective and efficient, the Office of the President must be capable of
being shaped and reshaped by the President in the manner he deems fit to carry
out his directives and policies. After all, the Office of the President is the command
post of the President. This is the rationale behind the Presidents continuing
authority to reorganize the administrative structure of the Office of the President.

The Office of the President consists of the Office of the President proper and
the agencies under it. The "Agencies under the Office of the President" refer to
those offices placed under the chairmanship of the President, those under the
supervision and control of the President, those under the administrative supervision
of the Office of the President, those attached to the Office for policy and program
coordination, and those that are not placed by law or order creating them under any
special department.

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As thus provided by law, the President may transfer any agency under the
Office of the President to any other department or agency, subject to the policy in
the Executive Office and in order to achieve simplicity, economy and efficiency.

The Administrative Code of 1987 categorizes administrative relationships into


(1) supervision and control, (2) administrative supervision, and (3) attachment. With
respect to the third category, it has been held that an attached agency has a larger
measure of independence from the Department to which it is attached than one
which is under departmental supervision and control or administrative supervision.
This is borne out by the "lateral relationship" between the Department and the
attached agency. The attachment is merely for "policy and program
coordination." Indeed, the essential autonomous character of a board is not negated
by its attachment to a commission.340

Every government office, entity, or agency must fall under the Executive,
Legislative, or Judicial branches, or must belong to one of the independent
constitutional bodies, or must be a quasi-judicial body or local government unit.
Otherwise, such government office, entity, or agency has no legal and constitutional
basis for its existence.341

Under Section 17, Article VII of the Constitution, the President exercises
control over all government offices in the Executive Branch. An office that is legally
not under the control of the President is not part of the Executive Branch. Under the
Revised Administrative Code of 1987, any agency "not placed by law or order
creating them under any specific department" falls "under the Office of the
President."342

Since the President exercises control over "all the executive departments,
bureaus, and offices," the President necessarily exercises control over x x x an office
in the Executive branch. In mandating that the President "shall have control of all
executive offices," Section 17, Article VII of the 1987 Constitution does not exempt
any executive office one performing executive functions outside of the
independent constitutional bodies from the Presidents power of control.

The Presidents power of control applies to the acts or decisions of all officers
in the Executive branch. This is true whether such officers are appointed by the
President or by heads of departments, agencies, commissions, or boards. The power
of control means the power to revise or reverse the acts or decisions of a
subordinate officer involving the exercise of discretion.

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In short, the President sits at the apex of the Executive branch, and exercises
"control of all the executive departments, bureaus, and offices." There can be no
instance under the Constitution where an officer of the Executive branch is outside
the control of the President. The Executive branch is unitary since there is only one
President vested with executive power exercising control over the entire Executive
branch. Any office in the Executive branch that is not under the control of the
President is a lost command whose existence is without any legal or constitutional
basis.343

VII. THE EXECUTIVE BRANCH


Executive Order No. 292, particularly Section 1, Chapter 1, Book IV on
Executive Branch, expressly provides:

Section 1. Purpose and Number of Departments. - The Executive Branch shall


have such Departments as are necessary for the functional distribution of the work
of the President and for the performance of their functions.

The most important self-executory constitutional power of the President is the


President's constitutional duty and mandate to "ensure that the laws be faithfully
executed." The rule is that the President can execute the law without any delegation
of power from the legislature. 344 The executive power is vested in the President of
the Philippines. The President has the duty to ensure the faithful execution of the
laws.345 Broadly understood, however, executive power is the power to enforce and
administer the laws of the land; it is the power to carry the laws into practical
operation and to enforce their due observance. 346

It holds that the President is the chief implementor of the law. 347 As the
country's Chief Executive, the President represents the whole government; he
carries the obligation to ensure the enforcement of all laws by the officials and
employees of his department.348 Thus, the Legislature has no authority to execute or
construe the law, the Executive has no authority to make or construe the law, and
the Judiciary has no power to make or execute the law. 349

The President has sworn to "execute the laws. For that matter, no other
department of the Government may discharge that function, least of all
Congress. Execution of the laws, it was held, is the concern of the President, and in
going about this business, he acts by himself or through his men and women, and
no other.350 Indeed, the duty to execute the laws of the land is not discretionary on
the part of the President, in the same manner that it is not discretionary on the part
of the citizens to obey the laws. 351

The vesting of the executive power in the President was essentially a grant of
the power to execute the laws. But the President alone and unaided could not
execute the laws. He must execute them by the assistance of subordinates. As he is

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charged specifically to take care that they be faithfully executed, the reasonable
implication, even in the absence of express words, was that as part of his execute
power he should select those who were to act for him under his direction in the
execution of the laws.352

The President's duty to execute the law is of constitutional origin. So, too, is
his control of all executive departments. Thus it is, that department heads are men
of his confidence. His is the power to appoint them; his, too, is the privilege to
dismiss them at pleasure. Naturally, he controls and directs their acts. Implicit then
is his authority to go over, confirm, modify or reverse the action taken by his
department secretaries. In this context, it may not be said that the President cannot
rule on the correctness of a decision of a department secretary. 353

It is consistent with the power vested on the President and his alter egos, the
Cabinet members, to have control of all the executive departments, bureaus and
offices and to ensure that the laws are faithfully executed. 354 In a department in the
Executive branch, the head is the Secretary. 355 Under the doctrine of qualified
political agency, department secretaries are alter egos or assistants of the President
and their acts are presumed to be those of the latter unless disapproved or
reprobated by him.356

VIIA. Cabinet Secretaries, Undersecretaries, Assistant Secretaries

The authority, duties, responsibilities, and powers and functions of Cabinet


members, their deputies and assistants are expressly provided in Chapter 2, Book IV
of the Administrative Code of 1987, thus:

Section 6. Authority and Responsibility of the Secretary. - The authority and


responsibility for the exercise of the mandate of the Department and for the
discharge of its powers and functions shall be vested in the Secretary, who shall
have supervision and control of the Department.

Section 7. Powers and Functions of the Secretary. - The Secretary shall:

1. Advise the President in issuing executive orders, regulations,


proclamations and other issuances, the promulgation of which is
expressly vested by law in the President relative to matters under the
jurisdiction of the Department;

2. Establish the policies and standards for the operation of the Department
pursuant to the approved programs of governments;

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3. Promulgate rules and regulations necessary to carry out department
objectives, policies, functions, plans, programs and projects;

4. Promulgate administrative issuances necessary for the efficient


administration of the offices under the Secretary and for proper execution
of the laws relative thereto. These issuances shall not prescribe penalties
for their violation, except when expressly authorized by law;

5. Exercise disciplinary powers over officers and employees under the


Secretary in accordance with law, including their investigation and the
designation of a committee or officer to conduct such investigation;

6. Appoint all officers and employees of the Department except those whose
appointments are vested in the President or in some other appointing
authority; Provided, however, that where the Department is regionalized
on a department-wide basis, the Secretary shall appoint employees to
positions in the second level in the regional offices as defined in this
Code;

7. Exercise jurisdiction over all bureaus, offices, agencies and corporations


under the Department as are provided by law, and in accordance with the
applicable relationships as specified in Chapters 7, 8, and 9 of this Book;

8. Delegate authority to officers and employees under the Secretary's


direction in accordance with this Code; and

9. Perform such other functions as may be provided by law.

xxx

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Section 10. Powers and Duties of the Undersecretary. - The Undersecretary
shall:

1. Advise and assist the Secretary in the formulation and implementation of


department objectives and policies;

2. Oversee all the operational activities of the department for which he shall
be responsible to the Secretary;

3. Coordinate the programs and projects of the department and be


responsible for its economical, efficient and effective administration;

4. Serve as deputy to the Secretary in all matters relating to the operations


of the department;

5. Temporarily discharge the duties of the Secretary in the latter's absence


or inability to discharge his duties for any cause or in case of vacancy of
the said office, unless otherwise provided by law. Where there are more
than one Undersecretary, the Secretary shall allocate the foregoing
powers and duties among them. The President shall likewise make the
temporary designation of Acting Secretary from among them; and

6. Perform such other functions and duties as may be provided by law.

Section 11. Duties and Functions of the Assistant Secretary. - The Assistant
Secretary shall perform such duties and functions as may be provided by law or
assigned to him by the Secretary.

The first section of Article VII of the Constitution, dealing with the Executive
Department, begins with the enunciation of the principle that "The executive power
shall be vested in a President of the Philippines." This means that the President of

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the Philippines is the Executive of the Government of the Philippines, and no other.
The heads of the executive departments occupy political positions and hold office in
an advisory capacity, and should be of the Presidents bosom confidence and are
subject to the direction of the President. Without minimizing the importance of the
heads of the various departments, their personality is in reality but the projection of
that of the President. Stated otherwise, each head of a department is, and must be,
the President's alter ego in the matters of that department where the President is
required by law to exercise authority.357

The doctrine of qualified political agency essentially postulates that the heads
of the various executive departments are the alter egos of the President, and, thus,
the actions taken by such heads in the performance of their official duties are
deemed the acts of the President unless the President himself should disapprove
such acts. The doctrine has been adopted here out of practical necessity,
considering that the President cannot be expected to personally perform the
multifarious functions of the executive office. 358 For it is only when the President
exercises his authority and powers that the department secretaries act merely as
his assistants, agents or advisers, and, in such cases, their acts are his. 359

Under the presidential type of government which we have adopted and


considering the departmental organization established and continued in force by
our Constitution, all executive and administrative organizations are adjuncts of the
Executive Department, the heads of the various executive departments are
assistants and agents of the Chief Executive, and except in cases where the Chief
Executive is required by the Constitution or the law to act in person or the
exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the secretaries of such
departments, performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive, presumptively the acts of
the Chief Executive.360

Secretaries of departments, of course, exercise certain powers under the law


but the law cannot impair or in any way affect the constitutional power of control
and direction of the President. As a matter of executive policy, they may be granted
departmental autonomy as to certain matters but this is by mere concession of the
executive, in the absence of valid legislation in the particular field. If the President,
then, is the authority in the Executive Department, he assumes the corresponding
responsibility. The head of a department is a man of his confidence; he controls and
directs his acts; he appoints him and can remove him at pleasure; he is the
executive, not any of his secretaries. 361

The department secretaries may act in a purely advisory capacity or under


the direction and authority of the President in the latter's exercise of his

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constitutional power of control, and, in such cases, the proposition contained in the
majority decision applies, because then, the department secretaries act purely for
the Chief Executive. However, they may also act in pursuance of the powers and
duties conferred upon them by law and continued in force by the Constitution, and,
unless the President desires to intervene, in appropriate cases, by interposing his
constitutional power of control, the acts of the department secretaries are
exclusively their own, and they are likewise exclusively responsible therefor. It
follows that when a department secretary acts in his own name and not by order or
authority of the President, he is presumed to be so acting in pursuance of a power
conferred upon him by law, and when the power is not thus conferred, his act is null
and void. And if the power is conferred expressly upon the President, he must
exercise it positively and in person with such assistance, advice and
recommendation of the corresponding department head, as he himself may choose
to demand.362

Each department head is expressly vested with broad as well as specific


powers commensurate with his responsibility, such as the powers to promulgate,
whenever he may see fit to do so, all rules, regulations, orders, or circulars
necessary to regulate the proper working and harmonious and efficient
administration of each and all of the offices and dependencies of his department,
and for the strict enforcement and proper execution of the laws relative to matters
under the jurisdiction of said department; the power of direction and supervision
over such bureaus and offices under his jurisdiction, and to repeal or modify the
decisions of the chief of said bureaus or offices when advisable in the public
interest; the power to appoint subordinate officers and employees whose
appointment is not expressly vested by law in the President, and to remove and
punish them except as specially provided otherwise in accordance with the Civil
Service Law, etc.363

As regards to the exercise of appointing power, the Department Secretary is


vested with express power to appoint all officers and employees of the Department
except those whose appointments are vested in the President or in some other
appointing authority. In a department in the Executive branch, the head is the
Secretary. The law may not authorize the Undersecretary, acting as such
Undersecretary, to appoint lower-ranked officers in the Executive department. In an
agency, the power is vested in the head of the agency for it would be preposterous
to vest it in the agency itself. In a commission, the head is the chairperson of the
commission. In a board, the head is also the chairperson of the board. In the last
three situations, the law may not also authorize officers other than the heads of the
agency, commission, or board to appoint lower-ranked officers. 364

VIIB. Department of Foreign Affairs

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The Administrative Code of 1987, in Title I, Book IV on Executive Branch,
prescribes the mandate, powers and functions, and organizational structure of the
Department of Foreign Affairs.

The Department of Foreign Affairs (DFA) advises and assists the President in
planning, organizing, directing, coordinating, integrating and evaluating the total
national effort in the field of foreign relations in pursuit of its Constitutional
mandate.365 As the primary agency for responsible for Philippine foreign policy,
the DFA, through its foreign service post, is also the primary representative of the
Philippine Government overseas.366

In the conduct of its foreign affairs, Section 7, Article II of the 1987 Philippine
Constitution, echoed in Section 1, Chapter 1, Title I, Book IV of the Administrative
Code of the 1987, decreed that [t]he State shall pursue an independent foreign
policy. In its relations with other states, the paramount consideration shall be
national sovereignty, territorial integrity, national interest, and the right to self-
determination.

The word relations covers the whole gamut of treaties and international
agreements and other kinds of intercourse. 367 Article 2 of the Vienna Convention on
the Law of Treaties defines a treaty as "an international agreement concluded
between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and
whatever its particular designation." International agreements may be in the form of
(1) treaties that require legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a narrower range
of subject matters than treaties. 368 International agreements involving political
issues or changes of national policy and those involving international arrangements
of a permanent character usually take the form of treaties. But international
agreements embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or
less temporary nature usually take the form of executive agreements. 369

Agreements concluded by the President which fall short of treaties are


commonly referred to as executive agreements and are no less common in our
scheme of government than are the more formal instruments treaties and

156
conventions. They sometimes take the form of exchanges of notes and at other
times that of more formal documents denominated "agreements" time or
"protocols".370 However, from the point of view of the international law, there is no
difference between treaties and executive agreements in their binding effect upon
states concerned as long as the negotiating functionaries have remained within
their powers. The distinction between so-called executive agreements" and
"treaties" is purely a constitutional one and has no international legal significance. 371

As regards the power to enter into treaties or international agreements, the


Constitution vests the same in the President. 372 The treaty-making power is
exclusive to the President, being the sole organ of the nation in its external
relations.373 In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the countrys
sole representative with foreign nations. As the chief architect of foreign policy, the
President acts as the countrys mouthpiece with respect to international affairs. 374
The President is undeniably the chief architect of foreign policy and is the country's
representative in international affairs. He is vested with the authority to preside
over the nation's foreign relations which involve, among others, dealing with foreign
states and governments, extending or withholding recognition, maintaining
diplomatic relations, and entering into treaties. In the realm of treaty-making, the
President has the sole authority to negotiate with other States. 375

By constitutional fiat and by the intrinsic nature of his office, the President, as
head of State, is the sole organ and authority in the external affairs of the country.
In many ways, the President is the chief architect of the nation's foreign policy; his
"dominance in the field of foreign relations is then conceded." Wielding vast powers
and influence, his conduct in the external affairs of the nation, as Jefferson
describes, is "executive altogether."376

The conduct of foreign relations is full of complexities and consequences,


sometimes with life and death significance to the nation especially in times of war. It
can only be entrusted to that department of government which can act on the basis
of the best available information and can decide with decisiveness. It is also the
President who possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and consular officials
regularly brief him on meaningful events all over the world. In fine, the presidential
role in foreign affairs is dominant and the President is traditionally accorded a wider
degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of
his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state relations,
forfeiture of confidence, national embarrassment and a plethora of other problems
with equally undesirable consequences.377

Nonetheless, the role of the President in foreign affairs is qualified by the


Constitution in that the Chief Executive must give paramount importance to the
sovereignty of the nation, the integrity of its territory, its interest, and the right of
the sovereign Filipino people to self-determination. 378 The Constitution regulates the
foreign relations powers of the Chief Executive when it provides that "no treaty or
international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the members of the Senate." 379 Therefore, while the President has

157
the sole authority to negotiate and enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him.380

VIIB1. Passport, Visa


The inviolability of right to travel is provided in Section 6, Article III (Bill of
Rights) of the 1987 Constitution, which reads:

Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.

True to its constitutional mandate, Republic Act No. 8239, otherwise known as
Philippine Passport Act 1996, was enacted under the declared policy, which reads:

The peoples constitutional right to travel is inviolable. Accordingly, the


government has the duty to issue passport or any travel document to any citizen of
the Philippines or individual who complies with the requirement of this Act. The
right to travel may be impaired only when national security, public safety, or public
health requires. To enhance and protect the unimpaired exercise of this right, only
minimum requirements for the application and issuance of passports and other
travel documents shall be prescribed. Action on such application and the issuance
shall be expedited.

The law governing passport issuance is Republic Act No. 8239. By definition,
passport means a document issued by the Philippine government to its citizens
and requesting other governments to allow its citizens to pass safely and freely, and
in case of need to give him/her all lawful aid and protection, 381 while travel
document means a certification or identifying document containing the description
and other personal circumstances of its bearer, issued for direct travel to and from
the Philippines valid for short periods or a particular trip. It is issued only to persons
whose claim to Philippine citizenship is doubtful. 382

In 1996, R.A. 8239 (Philippine Passport Act of 1996) was passed. The law
imposes upon the government the duty to issue passport or any travel document to
any citizen of the Philippines or individual who complies with the requirements of
the Act.

Section 5 of R.A. 8239 states that no passport shall be issued to an applicant


unless the Secretary or his duly authorized representative is satisfied that the
applicant is a Filipino citizen who has complied with the requirements. Conversely, a
Philippine passport holder is presumed to be a Filipino citizen, considering the

158
presumption of regularity accorded to acts of public officials in the course of their
duties.

When the claim to Philippine citizenship is doubtful, only a "travel document"


is issued. A travel document, in lieu of a passport, is issued to stateless persons who
are likewise permanent residents, or refugees granted such status or asylum in the
Philippines. If the State considers foundlings to be anything else but its citizens
(stateless persons, for example), it would not have given them passports.

However, since the 1950s, the Department of Foreign Affairs (DFA) has been
issuing passports to foundlings. A quick look at the official website of the DFA would
show an enumeration of supporting documents required of foundlings for the
issuance of a Philippine passport; to wit, certificate of foundling authenticated by
the Philippine Statistics Authority, clearance from the Department of Social Work
and Development (DSWD), passport of the person who found the applicant, and
letter of authority or endorsement from DSWD for the issuance of passport. The only
conclusion that can be made is that foundlings are considered by the State, or at
least by the executive, to be Philippine citizens. 383

VIIC. Department of Finance

Executive Order No. 292, otherwise known as the Administrative Code of


1987, in Title II, Book IV on Executive Branch, prescribes the mandate, powers and
functions, and organizational structure of the Department of Finance, including
those of its constituent units.

The Department of Finance (DOF) is the governments steward of sound fiscal


policy. It formulates revenue policies that will ensure funding of critical government

159
programs that promote welfare among our people and accelerate economic growth
and stability.384

Under Executive Orders 127, 127-A and 292, the Department of Finance
(DOF) is responsible for the sound and efficient management of the financial
resources of the government by formulating, institutionalizing, and administering
fiscal policies in coordination with other agencies of the government; generating
and managing the financial resources of government; supervising the revenue
operations of all local government units; and reviewing, approving, and managing
all public sector debt, domestic or foreign. It is also responsible for the
rationalization, privatization, and public accountability of corporations and assets
owned, controlled, or acquired by the government. 385

As the lead agency accountable for the sound and efficient management of
the financial resources of the Government, the Department of Finance performs the
following powers and functions: (1) Formulate goals, action plans and strategies for
the Government resource mobilization effort; (2) Formulate, institutionalize and
administer fiscal and tax policies; (3) Supervise, direct and control the collection of
government revenues; (4) Act as custodian of, and manage all financial resources of
Government; (5) Manage public debt; (6) Review and coordinate policies, plans and
programs of GOCCs; (7) Monitor and support the implementation of policies and
measures on local revenue administration; (8) Coordinate with other government
agencies on matters concerning fiscal, monetary, trade and other economic
policies; and (9) Investigate and arrest illegal activities such as smuggling, dumping,
illegal logging, etc. affecting national economic interest. 386

VIIC1. Bureau of Internal Revenue (BIR)

Executive Order No. 292, otherwise known as the Administrative Code of


1987, in Section 18 to 22, Chapter 4, Title II, Book IV on Executive Branch,
prescribes the mandate, powers and functions, composition and organizational
structure of the Bureau of Internal Revenue (BIR).

The Bureau of Internal Revenue is one of the revenue-generating agencies


under the DOF. The Bureau of Internal Revenue shall be under the supervision and
control of the Department of Finance and its powers and duties shall comprehend
the assessment and collection of all national internal revenue taxes, fees, and

160
charges, and the enforcement of all forfeitures, penalties, and fines connected
therewith, including the execution of judgments in all cases decided in its favor by
the Court of Tax Appeals and the ordinary courts. The Bureau shall give effect to and
administer the supervisory and police powers conferred to it by this Code or other
laws.387

As a primary collecting arm of revenues of the Philippine Government, the


BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue,
which shall be headed by and subject to the supervision and control of the
Commissioner of Internal Revenue, who shall be appointed by the President upon
the recommendation of the Secretary [of the DOF], shall have the following
functions: (1) Assess and collect all taxes, fees and charges and account for all
revenues collected; (2) Exercise duly delegated police powers for the proper
performance of its functions and duties; (3) Prevent and prosecute tax evasions and
all other illegal economic activities; (4) Exercise supervision and control over its
constituent and subordinate units; and (5) Perform such other functions as may be
provided by law.388

A tax refers to a financial obligation imposed by a state on persons,


whether natural or juridical, within its jurisdiction, for property owned, income
earned, business or profession engaged in, or any such activity analogous in
character for raising the necessary revenues to take care of the responsibilities of
government.389 Taxes are the enforced proportional contributions from persons and
property levied by the state by virtue of its sovereignty for the support of
government and for all public needs.390

Further, internal revenue tax refers to taxes imposed by the Congress other
than customs duties on imports and exports. Revenue refers to all funds or income
derived by the government, whether from tax or any other source, including taxes
and duties, fees and charges that a State or its political subdivision collects and
receives into the treasury for public purposes.

The BIR principally performs the special function of being the


instrumentalities through which the State exercises one of its great inherent
functions taxation.391 Taxation is a mode of raising revenue for public purposes,
and the power of taxation is an essential and inherent attribute of sovereignty,
belonging as a matter of right to every independent government, without being
expressly conferred by the people.392 Upon taxation depends the Governments
ability to serve people for whose benefit taxes are collected. 393

The power of taxation is essential because the government can neither exist
nor endure without taxation. Taxes are the lifeblood of the government, for without
taxes, the government can neither exist nor endure. A principal attribute of
sovereignty, the exercise of taxing power derives its source from the very existence
of the state whose social contract with its citizens obliges it to promote public
interest and common good. The theory behind the exercise of the power to tax
emanates from necessity; without taxes, government cannot fulfill its mandate of
promoting the general welfare and well-being of the people. 394

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It is said that taxes are what we pay for civilization society. Without taxes, the
government would be paralyzed for lack of the motive power to activate and
operate it. Hence, despite the natural reluctance to surrender part of one's hard
earned income to the taxing authorities, every person who is able to must
contribute his share in the running of the government. The government for its part,
is expected to respond in the form of tangible and intangible benefits intended to
improve the lives of the people and enhance their moral and material values. This
symbiotic relationship is the rationale of taxation and should dispel the erroneous
notion that it is an arbitrary method of exaction by those in the seat of power. 395

VIIC2. Bureau of Customs

Executive Order No. 292, otherwise known as the Administrative Code of


1987, in Section 18 to 22, Chapter 4, Title II, Book IV on Executive Branch,
prescribes the mandate, powers and functions, composition and organizational
structure of the Bureau of Customs (BOC).
The Bureau of Customs (BOC) implements an effective revenue collection
by preventing and suppressing smuggling and the entry of prohibited
imported goods. It supervises and controls the entrance and clearance of vessels
and aircrafts engaged in foreign commerce. It also enforces the Tariff and Customs
Code of the Philippines and all other laws, rules and regulations related to tariff and
customs administration.396

The Bureau of Customs (BOC) is the second largest revenue collection agency
of the government after the Bureau of Internal Revenue. The BOC is mandated with
tri-mission of revenue collection, trade facilitation and trade border protection.
Section 602 of the Tariff and Customs Code of the Philippines (TCCP) mandated the
BOC to: (1) Assess and collect lawful revenues; (2) Prevent and suppress smuggling
and other frauds; (3) Supervise and control the entrance and clearance of
vessels/aircrafts engaged in foreign commerce; (4) Enforce tariff and customs laws;
(5) Control the handling of foreign mails for revenues and prevention of smuggling
purposes; (6) Control import and export cargoes; and (7) Exercise exclusive
jurisdiction over forfeiture and seizure cases. 397

The BOC principally performs the special function of being the


instrumentalities through which the State exercises one of its great inherent

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functions taxation.398 The BOC levies, assesses and collects tariffs and customs
duties as provided under the Tariff and Customs Code (TCCP).

The word tariffs, by definition, are customs duties, toll or tribute payable
upon merchandise to the government. Customs duties is the name given on the
importation and exportation of commodities, the tariff or tax assessed upon
merchandise imported from, or exported to, a foreign country. 399 Customs duties and
tariffs, however, both refer to the taxes imposed on imported or exported wares,
articles or merchandise.

The BOC levies, assesses and collects customs duties in all matters relating
to importation of goods, and importation begins when the carrying vessels or
aircraft enters the jurisdiction of the Philippines with intention to unload therein and
importation is deemed terminated upon payment of duties, taxes and other charges
due upon the articles or secured to be paid, at a port of entry and the legal permit
for withdrawal shall have been granted, or in case said articles are free of duties,
taxes and other charges, until they have legally left the jurisdiction. 400

As a rule, all articles, when imported from any foreign country into the
Philippines, shall be subject to duty upon each importation, even though previously
exported from the Philippines, except as otherwise specifically provided for in the
TCCP or in other laws.401 Further, all importations by the Government for its own use
or that of its subordinate branches or instrumentalities or owned or controlled by
the Government, shall be subject to the duties, taxes, fees and other charges
provided for in the TCCP.402

VIIC3. Economic Intelligence and Investigation Bureau (EIIB)

The Economic Intelligence and Investigation Bureau (EIIB) of the Department


of Finance (DOF) had already been abolished by virtue of Executive Order No. 191
(Deactivation of the Economic Intelligence and Investigation Bureau) and Executive
Order No. 223 (Supplementary Executive Order No. 191 on the Deactivation of the
Economic Intelligence and Investigation Bureau and for Other Matters), both issued
by former President Estrada.

VIIC4. Bureau of Local Government Finance (BLGF)

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Executive Order No. 292, otherwise known as the Administrative Code of
1987, in Section 33 to 39, Chapter 4, Title II, Book IV on Executive Branch,
prescribes the mandate, powers and functions, composition and organizational
structure of the Bureau of Local Government Finance (BLGF).

The Bureau of Local Government Finance of the Department of Finance is


the focal agency and an authority in local finance that aims to be at the forefront of
local economic growth leading the way towards national development. 403

Under Executive Orders 127, 127-A and 292 the Bureau of Local Government
Finance is mandated to perform the following functions: (a) Assist in the formulation
and implementation of policies on local government revenue administration and
fund management; (b) Exercise administrative, technical supervision and
coordination over the treasury and assessment operation of local government; (c)
Develop or implement plans and programs for the improvement of resource
management system, collection enforcement mechanisms and credit utilization
schemes at the local levels; (d) Provide consultative services and technical
assistance to the local government and the general public on local taxation, real
property assessment and other related matters; (e) Exercise line supervision over
its Regional Offices and the local treasury and assessment and other related
matters; and (f) Perform such other tasks or functions as maybe assigned by the
Secretary of Finance or Undersecretary for Domestic Operations. 404

The Bureau of Local Government Finance (BLGF) is responsible over the fiscal
affairs of the local government sector. It provides a catalyst role in assisting LGUs
achieve sustainable and effective financial management, making them contributors
to national development objectives.405 The Bureau of Local Government Finance
being the arm of DOF is responsible in the administration and technical supervision
of LGUs. The BLGF is specifically directed to supervise the revenue operations of all
local government units, with the objective of making these entities less dependent
on funding from the national government.406

Pursuant to the provisions of Section 4, 3rd paragraph of EO 127, the


Department of Finance shall be responsible for the supervision of the revenue
operations of all local government units. The Bureau of Local Government Finance,
pursuant to Section 33 of the Revised Administrative Code of 1987, shall assist the
Department of Finance in the formulation and implementation of policies over local
government revenue administration and fund management. Likewise, BLGF shall
exercise technical supervision over the assessment operations of all local
governments.
Section 201 of the Local Government Code of 1991 and Article 291 of its
Implementing Rules and Regulations (IRR) provide that the Department of Finance
shall promulgate the necessary rules and regulations for the classification,
appraisal, and assessment of real property. For this purpose, the Department of
Finance (DOF) has constituted a Committee composed of the officials and staff of
the Bureau of Local Government Finance (BLGF) and Provincial, City and Municipal
Assessors to formulate a Manual on Real Property Appraisal and Assessment
Operations, which shall serve as a guide for assessors all over the country. 407

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The Bureau of Local Government Finance (BLGF) of the Department of
Finance (DOF) prescribed the preparation of the Statement of Income and
Expenditures (SIE) in accordance with its mandate to maintain financial information
on all local government units (LGUs), monitor financial performance, and assist in
the development of LGUs including their financial operations through technical
assistance and supervision. The objective was to generate financial reports that
fairly presented the operating performance of LGUs in terms of income and
expenditures with expediency in their preparation and timely presentation to the
various users and stakeholders of the government. 408

VIID. Department of Justice

Title III, Book IV of Executive Order No. 292, otherwise known as the
Administrative Code of 1987, prescribes the mandate, powers and functions, and
organizational structure of the DOJ, including those of its constituent units. It carries
out this mandate through the Department Proper and the Department's attached
agencies under the direct control and supervision of the Secretary of Justice.

Under Executive Order (EO) 292, the Department of Justice shall provide the
government with a principal law agency which shall be both its legal counsel and
prosecution arm; administer the criminal justice system in accordance with the
accepted processes thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the correctional system; implement
the laws on the admission and stay of aliens, citizenship, land titling system, and
settlement of land problems involving small landowners and members of indigenous
cultural minorities; and provide free legal services to indigent members of the
society.

Being the government's principal law agency, the DOJ serves as the
government's prosecution arm and administers the government's criminal justice
system by investigating crimes, prosecuting offenders and overseeing the
correctional system. Also, the DOJ, through its offices and constituent/attached
agencies, is also the government's legal counsel and representative in litigations
and proceedings requiring the services of a lawyer; implements the Philippines' laws
on the admission and stay of aliens within its territory; and provides free legal
services to indigent and other qualified citizens.

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The DOJ performs, but is not limited to, the following functions:

1. Administration of the Criminal Justice SystemThe DOJ investigates the


commission of crimes and prosecutes offenders through the National
Bureau of Investigation (NBI) and the National Prosecution Service
(NPS), respectively. Likewise, the DOJ administers the probation and
correction system of the country through the Bureau of Corrections
(BuCor), the Board of Pardons and Parole (BPP)and the Parole and
Probation Administration (PPA).

2. Legal Counsel of GovernmentThe DOJ, through the Office of the Solicitor


General (OSG) and the Office of the Government Corporate Counsel
(OGCC), acts as the legal representative of the Government of the
Philippines, its agencies and instrumentalities including government
owned and controlled corporations and their subsidiaries, officials and
agents in any proceeding, investigation or matter requiring the services of
a lawyer.

3. Regulation of ImmigrationThe DOJ provides immigration and


naturalization regulatory services and implements the laws governing
citizenship and the admission and stay of aliens through the Bureau of
Immigration (BI).

4. International CooperationThe DOJ is the central authority of the Republic


of the Philippines relative to extradition and mutual legal assistance
treaties (MLAT) on criminal matters and is involved in several aspects of
international cooperation such as the drafting and implementation of
legislation and agreements as well as the negotiation of extradition and
MLAT.

5. Provision of Free Legal AssistanceThe DOJ provides free legal assistance/


representation to indigents and poor litigants as well as other qualified
persons in criminal, civil, and labor cases, administrative and other quasi-
judicial proceedings and non-commercial disputes through the Public
Attorney's Office (PAO) pursuant to RA No. 9406.

6. DOJ functions under other laws and other executive issuancesIn addition
to performing its mandate under E.O. 292, the Department is significantly
involved in the implementation of the following penal, national security,
and social welfare laws:

a. The Comprehensive Dangerous Drugs Act of 2002 (RA 9165), which


created the Dangerous Drugs Board to see to policy-making and
strategy-formulation on drug prevention and control and designated
the Secretary or his representative as ex-officio member of such Board;

b. The Anti-Money Laundering Act of 2001 (R.A. 9160), which created


the Anti-Money Laundering Council (AMLC) to which the DOJ is a
support agency through the investigation of money laundering
offenses and the prosecution of offenders. With the DOJ Anti-Money

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Laundering Desk (DOJ-AMLD), the DOJ works in close coordination with
the AMLC in its task of combating money laundering and financing of
terrorism;
c. The Human Security Act of 2007 (RA 9372) which created and
designated the Secretary as ex-officio member thereof. Relative to this
and under EO 292, the Secretary is also an ex-officio member of the
National Security Council (NSC), which advises the President with
respect to the integration of domestic, foreign, military, political,
economic, social, and educational policies relating to national security;

d. The Anti-Trafficking in Persons Act of 2003 (R.A. 9208), which mandates


the prosecution of persons accused of human trafficking and for that
purpose, created the Inter-Agency Council on Trafficking (IACAT), of
which the Secretary is Chairman;

e. The Anti-Violence Against Women and Their Children Act of 2004 (RA
9262), which designated the Department as a member agency of
the Inter-Agency Council on Violence Against Women and their
Children (IACVAWC), the monitoring body of government initiatives to
counter violence against women and children;

f. Anti-Child Pornography Act of 2009 (IRR of RA), designating the


Secretary of Justice as member of Inter-Agency Council Against Child
Pornography that is tasked to coordinate, monitor and oversee the
implementation of Anti-Child Pornography Act;

g. Cybercrime Prevention Act of 2012 (RA 10175), the Office of


Cybercrime within the DOJ designated as the central authority in all
matters related to international mutual assistance and extradition; 409

VIID1. Office of the Government Corporate Counsel

The principal law office of GOCCs, as provided in Section 10, Chapter 3, Title
III, Book IV of the Administrative Code of 1987, is the Office of the Government
Corporate Counsel (OGCC), thus:

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Section 1. The Office of the Government Corporate Counsel (OGCC) shall act
as the principal law office of all government-owned or controlled corporations, their
subsidiaries, other corporate off-springs and government acquired asset
corporations and shall exercise control and supervision over all legal departments
or divisions maintained separately and such powers and functions as are now or
may hereafter be provided by law. In the exercise of such control and supervision,
the Government Corporate Counsel shall promulgate rules and regulations to
effectively implement the objectives of the Office.
xxx

A government-owned or controlled corporation refers to any agency


organized as a stock or non-stock corporation, vested with functions relating to
public needs whether governmental or proprietary in nature, and owned by the
Government directly or through its instrumentalities either wholly, or, where
applicable as in the case of stock corporations, to the extent of at least fifty-one
(51) percent of its capital stock: Provided, That government-owned or controlled
corporations may be further categorized by the Department of the Budget, the Civil
Service Commission, and the Commission on Audit for purposes of the exercise and
discharge of their respective powers, functions and responsibilities with respect to
such corporations.410

Book IV, Title III, Chapter 3, Section 10 of Executive Order No. 292, otherwise
known as the Administrative Code of 1987, provides that the Office of the
Government Corporate Counsel (OGCC) shall act as the principal law office of all
GOCCs, their subsidiaries, other corporate offsprings, and government acquired
asset corporations.411

Administrative Order No. 130, issued by then president Fidel V. Ramos on 19


May 1994, delineating the functions and responsibilities of the OSG and the OGCC,
clarifies that all legal matters pertaining to GOCCs, their subsidiaries, other
corporate offsprings, and government acquired asset corporations shall be
exclusively referred to and handled by the OGCC, unless their respective charters
expressly name the OSG as their legal counsel. Nonetheless, the GOCC may hire the
services of a private counsel in exceptional cases with the written conformity and
acquiescence of the Government Corporate Counsel, and with the concurrence of
the Commission on Audit (COA).412

Then came Memorandum Circular No. 9, issued by President Estrada on


August 27, 1998. Section 3 thereof enjoins GOCCs to refrain from hiring private
lawyers or law firms to handle their cases and legal matters. But the same Section 3
provides that in exceptional cases, the written conformity and acquiescence of the
Solicitor General or the Government Corporate Counsel, as the case may be, and
the written concurrence of the COA shall first be secured before the hiring or
employment of a private lawyer or law firm. 413

Therefore, as a general rule, government-owned and controlled corporations


are not allowed to engage the legal services of private counsels. Nonetheless, in
exceptional cases, private counsel can be hired with the prior written conformity
and acquiescence of the Solicitor General or the Government Corporate Counsel,
and the prior written concurrence of the Commission on Audit (COA). 414

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It should also be noted that the aforementioned Section 10, Book IV, Title III,
Chapter 3 of the Administrative Code of 1987 authorizes the OGCC to receive the
attorney's fees adjudged in favor of their client GOCCs, such fees accruing to a
special fund of the OGCC. Evidently, the non-participation of the OGCC in litigations
pursued by GOCCs would deprive the former of its due funding as authorized by
law.415
Anent the question whether the Office of the Solicitor-General is allowed to
represent GOCCs, the answer is provided in Section 35, Chapter 12, Title III, Book IV
of Executive Order No. 292, otherwise known as the Administrative Code of 1987,
viz.:

The Office of the Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers.
When authorized by the President or head of the office concerned, it shall also
represent government owned or controlled corporations. x x x

Under the foregoing, the OSG is mandated to act as the law office of the
government, its agencies, instrumentalities, officials and agents in any litigation or
proceeding requiring the services of a lawyer. With respect to government-owned or
controlled corporations (GOCCs), the OSG shall act as counsel only when authorized
by the President or by the head of the office concerned. 416

VIID2. National Bureau of Investigation

Section 11, Chapter 4, Title III, Book IV of the Administrative Code of 1987
retains the creation of National Bureau of Investigation, thus:

Section 11. The National Bureau of Investigation (NBI) with all its duly
authorized constituent units including its regional and district offices and
rehabilitation center, shall continue to perform the powers and functions as are now

169
vested in it under the existing law and such additional functions as may hereafter
be provided by law.

Republic Act No. 157 is the statute that created the Bureau of Investigation,
later renamed to National Bureau of Investigation, with the following functions
provided under Section 1 thereof, thus:
Section 1. There is hereby created a Bureau of Investigation under the
Department of Justice which shall have the following functions:

a. To undertake investigations of crimes and other offenses against the laws


of the Philippines, upon its own initiative and as public interest may
require;

b. To render assistance, whenever properly requested in the investigation or


detection of crimes and other offenses;

c. To act a national clearing house of criminal and other informations for the
benefit and use of all prosecuting and law-enforcement entities of the
Philippines, identification records of all persons without criminal
convictions, records of identifying marks, characteristics, and ownership
or possession of all firearms as well as of test bullets fired therefrom;

d. To give technical aid to all prosecuting and law-enforcement officers and


entities of the Government as well as the courts that may request its
services;

e. To extend its services, whenever properly requested in the investigation


of cases of administrative or civil nature in which the Government is
interested;

f. To undertake the instruction and training of a representative number of


city and municipal peace officers at the request of their respective
superiors along effective methods of crime investigation and detection in
order to insure greater efficiency in the discharge of their duties;

170
g. To establish and maintain an up-to-date scientific crime laboratory and to
conduct researches in furtherance of scientific knowledge in criminal
investigation; and

h. To perform such other related functions as the Secretary of Justice may


assign from time to time.

As a mandate, the National Bureau of Investigation undertakes efficient


detection and investigation of crimes and other offenses against the laws of the
Philippines upon its own initiative and as public interest may require; renders
technical assistance upon request in the investigation and detection of crimes and
other offenses; coordinates with other national and local police agencies in the
maintenance of peace and order, and establishes and maintains an up-to-date
scientific crime laboratory. It acts as a national clearing house of criminal and other
information for the use of all prosecuting and law enforcement entities of the
Philippines, identification records of identifying marks, characteristics and
ownership or possession of all firearms as well as of test bullets fired therefrom. 417

VIID3. Public Attorneys Office

Section 14, Chapter 5, Title III, Book IV of Administrative Code of 1987, as


amended, is further amended in Section 2 of Republic Act 9406, which reads:

Section 14. The Citizen's Legal Assistance Office (CLAO) is renamed Public
Attorney's Office (PAO). It shall exercise the powers and functions as are now
provided by law for the Citizen's Legal Assistance Office or may hereafter be
provided by law.

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The PAO shall be an independent and autonomous office attached to the
Department of Justice in accordance with Sec. 38(3), Chapter 7 of Book IV of this
Code for the purposes of policy and program coordination.

The PA0 shall be the principal law office of the government in extending free
legal assistance to indigent persons in criminal, civil, labor, administrative and other
quasi-judicial cases.

The statutory creation of Public Attorneys Office (PAO) gives life and spirit to
the constitutional guarantee provided in Section 11, Article III (Bill of Rights) of the
1987 Philippine Constitution, which reads:

Section 11. Free access to the courts and quasi-judicial bodies and adequate
legal assistance shall not be denied to any person by reason of poverty.

The law expressly exempts clients of PAO from payment of docket and other
fees incidental to instituting an action in court and other quasi-judicial bodies, as an
original proceeding or on appeal. Under Section 16.D of OCA Circular No. 67-2007,
the clients of the Public Attorney's Office shall be exempt from payment of docket
and other fees incidental to instituting an action in court. However, such exemption
shall be subject to the conditions prescribed under Section 19, Rule 141 of the
Revised Rules of Court.

Under PAO M.C. No. 18 series of 2002, a case shall be considered meritorious
if an assessment of the law and evidence on hand discloses that the legal services
of the office will assist or be in aid of or in the furtherance of justice, taking into
consideration the interests of the party and those of the society. In such cases, the
Public Attorney should agree to represent the party concerned. On the other hand,
a case is deemed unmeritorious if it appears that it has no chance of success, or is
intended merely to harass or injure the opposite party or to work oppression or
wrong. In such situation, the Public Attorney must decline the handling of the case.

A Public Attorney may represent an indigent client even if his cause of action
is adverse to a public officer, government office, agency or instrumentality provided
the case is meritorious. Caution should however be exercised that the office be not
exposed to charges of harassment, unfairness or undue haste in the filing of suits.

In criminal cases, the accused enjoys the constitutional presumption of


innocence until the contrary is proven. Hence, cases of defendants in criminal
actions are considered meritorious.

Pursuant to PAO MEMORANDUM CIRCULAR NO. 02 Series of 2010 dated


January 27, 2010 and entitled as "AMENDING SECTIONS 3, 4, and 5, ARTICLE II OF
MEMORANDUM CIRCULAR NO. 18, S. 2002 (Amended Standard Office Procedures in

172
Extending Legal Assistance)" in relation to the provisions of Republic Act (RA) No.
9406 enacted by Congress and approved by Her Excellency President Gloria
Macapagal-Arroyo on March 23, 2007 and its Implementing Rules and Regulations
dated July 14, 2008, the Indigency Test set forth in Section 3, Article II, MC No. 18, S.
2002, is hereby amended to read as follows:

Indigency Test. Taking into consideration recent surveys on the amount


needed by an average Filipino family to (a) buy its food consumption basket and
(b) pay for its household and personal expenses, the following applicant shall be
considered as an indigent person: (1) If residing in Metro Manila, whose net income
does not exceed Php14,000.00 a month; (2) If residing in other cities, whose net
income does not exceed Php13,000.00 a month; (3) If residing in other places,
whose net income does not exceed Php 12,000.00 a month.

The term net income as herein employed shall be understood to refer to the
income of the litigant less statutory deductions. Statutory deductions shall refer to
withholding taxes, GSIS, SSS, Pag-Ibig, Health Insurance and Philhealth premiums as
well as mandatory deductions.

For purposes of this Section, ownership of land shall not per se constitute a
ground for disqualification of an applicant for free legal assistance in view of the
ruling in Enaje v. Ramos418 that the determinative factor for indigency is the income
of the litigant and not his ownership of real property. To ensure that only those
qualified shall be extended free legal assistance, the applicant shall be required to
execute an Affidavit of Indigency and to submit any of the following documents: (1)
Latest Income Tax Return or pay slip or other proofs of income; or (2) Certificate of
Indigency from the Department of Social Welfare and Development, its local District
Office, or the Municipal Social Welfare and Development Office having jurisdiction
over the residence of the applicant; or (3) Certificate of Indigency from the
Barangay Chairman having jurisdiction over the residence of the applicant.

VIID4. Bureau of Corrections

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The Bureau of Corrections was created pursuant to Section 26, Chapter 8,
Title III, Book IV of the Administrative Code of 1987, thus:

Section 26. Bureau of Corrections. - The Bureau of Corrections shall have its
principal task the rehabilitation of prisoners. The Bureau of Corrections shall
exercise such powers and functions as are now provided for the Bureau of Prisons
or may hereafter be provided by law.

The Bureau of Corrections is an agency under the Department of Justice that


is charged with custody and rehabilitation of national offenders, that is, those
sentenced to serve a term of imprisonment of more than three (3) years. 419

It is the policy of the State to promote the general welfare and safeguard the
basic rights of every prisoner incarcerated in our national penitentiary. It also
recognizes the responsibility of the State to strengthen government capability
aimed towards the institutionalization of highly efficient and competent correctional
services.420

The Philippine Corrections System is composed of the institutions in the


government, civil society and the business sector involved in the confinement,
correction and restoration of persons charged for and/or convicted of delinquent
acts or crimes. The public sector formulates sound policies and rules on corrections,
penology and jail management, rehabilitation and restoration. All prisons or
penitentiaries, jails and detention centers are under the direct control and
supervision of the government. The government, thus, plays a dominant role in the
correction and rehabilitation of offenders. 421

The Bureau of Corrections (BuCor) has for its principal task the rehabilitation
of national prisoners, or those sentenced to serve a term of imprisonment of more
than three years. Since its creation, the BuCor has evolved with modern penology
and has shifted from the traditional view of imprisonment as societys retribution
against criminal offenders into one which regards imprisonment as a humanizing
and enriching experience. Corrections focus on rehabilitation and regards inmates
as patients who need treatment and guidance in order to become productive and
responsible members of society upon their release. 422

As a mandate, the Bureau of Corrections is mandated by law to accomplish


its twin objectivesThe Effective Rehabilitation and Safekeeping of National
Prisoners.423 To carry out its mandate, the Bureau undertakes the following: (a)
Confine persons convicted by the courts to serve a sentence in national prisons; (b)
Keep prisoners from committing crimes while in custody; (c) Provide humane
treatment by supplying inmates basic needs and implementing a variety of
rehabilitation programs designed to change their pattern of criminal or anti-social
behavior; and (d) Engage in agro-industrial projects for the purpose of developing
prison lands and resources into productive bases or profit centers, developing and
employing inmate manpower skills and labor, providing prisoners with a source of
income and augmenting the Bureaus yearly appropriations. 424

VIID5. Board of Pardons and Parole

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The pardoning power of the President is expressly provided in Section 19,
Article VII of the 1987 Philippine Constitution, thus: Section 19. Except in cases of
impeachment, or as otherwise provided in this Constitution, the President may
grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.

In the exercise of the Presidents pardoning power, the Board of Pardons and
Parole, an attached agency under the Department of Justice, is the principal agency
tasked in processing applications for pardon of individual convicted of criminal
offense which it would then submit to the President for approval.

The Board of Pardons and Parole (BPP) was created pursuant to Act No. 4103,
as amended. It is the intent of the law to uplift and redeem valuable human material
to economic usefulness and to prevent unnecessary and excessive deprivation of
personal liberty. The continued existence and operation of BPP was provided in
Section 17, Chapter 6, Title III, Book IV of the Administrative Code of 1987, which
reads: Section 17. The Board of Pardons and Parole shall continue to discharge the
powers and functions as provided in existing law and such additional functions as
may be provided by law.

At the outset it is important to observe that parole and pardon are two
different things. Parole is a conditional release of a prisoner with an unexpired
sentence, or suspension of his sentence, without remitting the penalty imposed
upon him; while pardon is a remission of the penalty imposed upon a defendant
together with all the accessories appurtenant thereto. 425

BPP may grant parole if it finds that: (1) the prisoner is fit to be released; (2)
there is a reasonable probability that, if released, he or she will live and remain at
liberty without violating the law; and (3) his or her release will not be incompatible
with the welfare of society.

The BPP provides invaluable assistance to the President in exercising the


power of executive clemency. It is exercised with the objective of preventing a
miscarriage of justice or correcting a manifest injustice. Executive clemency may be
exercised through a reprieve, absolute pardon, conditional pardon, or commutation
of sentence.

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Reprieve refers to the deferment of the implementation of the sentence for
an interval of time; it does not annul the sentence but merely postpones or
suspends its execution. Commutation of Sentence refers to the reduction of the
duration of a prison sentence of a prisoner. Absolute Pardon refers to the total
extinction of the criminal liability of the individual to whom it is granted without any
condition. It restores to the individual his or her civil and political rights and remits
the penalty imposed for the particular offence of which he or she was convicted.
Conditional Pardon refers to the exemption of an individual, within certain limits or
conditions, from the punishment which the law inflicts for the offence he or she had
committed resulting in the partial extinction of his or her criminal liability.

The BPP recommends to the President the grant of executive clemency when
any of the following circumstances are present: (1) the trial or appellate court
recommended in its decision the grant of executive clemency for the prisoner; (2)
under the peculiar circumstances of the case, the penalty imposed is too harsh
compared to the crime committed; (3) offender qualifies as a youth offender at the
time of the commission of the offence; (4) prisoner is seventy years old and above;
(5) prisoner is terminally-ill; (6) alien prisoners where diplomatic considerations and
amity among nations necessitate review; and (7) other similar or analogous
circumstances whenever the interest of justice will be served thereby.

Notwithstanding the existence of any of the circumstances mentioned above,


the BPP shall not favorably recommend petitions for executive clemency of the
following prisoners, those: (1) convicted of evasion of service of sentence; (2) who
violated the conditions of their conditional pardon; (3) who are habitual delinquents
or recidivists; (4) convicted of kidnapping for ransom; (5) convicted of violation of
the Dangerous Drugs Act of 1972 and the Comprehensive Dangerous Drugs Act of
2002; (6) convicted of offences committed under the influence of drugs; and (7)
whose release from prison may constitute a danger to society.

Where the President grants conditional pardon to a prisoner, the BPP


monitors the prisoners compliance with the conditions imposed for the duration of
the period stated in the grant of executive clemency. Upon determination that a
prisoner granted conditional pardon has violated the conditions of his or her pardon,
the Board recommends to the President the prisoners arrest or recommitment. 426

The grant of reprieves, commutations and pardons, as well as the remission


of fines and forfeitures by the President may be done only after the grantee has
been convicted by final judgment. This is crystal clear from the terms of Sec. 19,
Art. VII, 1987 Constitution, which states that "except in cases of impeachment, or as
otherwise provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after conviction by final
judgment.427

The "conviction by final judgment" limitation under Section 19, Article VII of
the present Constitution prohibits the grant of pardon, whether full or conditional, to
an accused during the pendency of his appeal from his conviction by the trial court.
Any application therefor, if one is made, should not be acted upon or the process
toward its grant should not be begun unless the appeal is withdrawn. Accordingly,
the agencies or instrumentalities of the Government concerned must require proof

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from the accused that he has not appealed from his conviction or that he has
withdrawn his appeal. Such proof may be in the form of a certification issued by the
trial court or the appellate court, as the case may be. The acceptance of the pardon
shall not operate as an abandonment or waiver of the appeal, and the release of an
accused by virtue of a pardon, commutation of sentence, or parole before the
withdrawal of an appeal shall render those responsible therefor administratively
liable. Accordingly, those in custody of the accused must not solely rely on the
pardon as a basis for the release of the accused from confinement. 428

VIID6. Bureau of Immigration

The Bureau of Immigration is the immigration regulatory and control body of


the Philippines. It was established by the Philippine Immigration Act in 1940.429 The
Philippine Immigration Act of 1940 (Commonwealth Act No. 613, as amended) is the
basic law that governs the entry, admission, exclusion, immigration, repatriation,
monitoring and deportation of foreigners within the Philippine territory.

As explicitly mandated in Section 31, Chapter 10, Title III, Book IV of the
Administrative Code of 1987, the Bureau of Immigration (BI) is principally
responsible for the administration and enforcement of immigration, citizenship, and
alien admission and registration laws in accordance with the provisions of the
Philippine Immigration Act of 1940. It also plays a role in the enforcement of RA
9208, also known as the Anti-Trafficking In Persons Act of 2003. 430

Anent the issue of whether the Immigration Commissioner, who is not a


judge, is empowered to issue warrant of arrest and search, under Article III, Section
2, of the 1987 Constitution, it is only judges, and no other, who may issue warrants
of arrest and search. The exception is in cases of deportation of illegal and
undesirable aliens, whom the President or the Commissioner of Immigration may
order arrested, following a final order of deportation, for the purpose of
deportation.431

The power of the Immigration Commissioner to order the arrest of


undesirable aliens is provided in Section 37 (a) of Commonwealth Act No. 613, as
amended, otherwise known as the Immigration Act of 1940, which reads:

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the
Commissioner of Immigration or of any other officer designated by him for the

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purpose and deported upon the warrant of the Commissioner of Immigration after a
determination by the Board of Commissioner of the existence of the ground for
deportation as charged against the alien.

From a perusal of the above provision, it is clear that in matters of


implementing the Immigration Act insofar as deportation of aliens are concerned,
the Commissioner of Immigration may issue warrants of arrest only after a
determination by the Board of Commissioners of the existence of the ground for
deportation as charged against the alien. In other words, a warrant of arrest issued
by the Commissioner of Immigration, to be valid, must be for the sole purpose of
executing a final order of deportation. A warrant of arrest issued by the
Commissioner of Immigration for purposes of investigation only, as in the case at
bar, is null and void for being unconstitutional. 432

Anent the proper procedure in assailing the orders of Immigration


Commissioner in deportation proceedings, Kiani v. The Bureau of Immigration and
Deportation433 expounded on the procedure:

Under Section 8, Chapter 3, Title I, Book III of Executive Order No. 292, the
power to deport aliens is vested on the President of the Philippines, subject to the
requirements of due process. The Immigration Commissioner is vested with
authority to deport aliens under Section 37 of the Philippine Immigration Act of
1940, as amended. Thus, a party aggrieved by a Deportation Order issued by the
Board of Commissioner (BOC) is proscribed from assailing said Order in the RTC
even via a petition for a writ of habeas corpus. Such aggrieved party may file a
motion for the reconsideration thereof before the BOC.

There is no law or rule which provides that a Summary Deportation Order


issued by the BOC in the exercise of its authority becomes final after one year from
its issuance, or that the aggrieved party is barred from filing a motion for a
reconsideration of any order or decision of the BOC. In deportation proceedings, the
Rules of Court may be applied in a suppletory manner and that the aggrieved party
may file a motion for reconsideration of a decision or final order under Rule 37 of
said Rules.

In case such motion for reconsideration is denied by the BOC, the aggrieved
party may appeal to the Secretary of Justice and, if the latter denies the appeal, to
the Office of the President of the Philippines [(OP)]. The party may also choose to
file a petition for certiorari with the CA under Rule 65 of the Rules of Court, on the
ground that the Secretary of Justice acted with grave abuse of discretion amounting
to excess or lack of jurisdiction in dismissing the appeal, the remedy of appeal not
being adequate and speedy remedy. In case the Secretary of Justice dismisses the
appeal, the aggrieved party may resort to filing a petition for review under Rule 43
of the Rules of Court, as amended.

Thus, to recap, from the denial of the BOI Board of Commissioners motion for
reconsideration, the aggrieved party has three (3) options: (a) he may file an appeal
directly to the CA via Rule 43 provided that he shows that any of the exceptions to
the exhaustion doctrine attend; (b) absent any of the exceptions, he may exhaust
the available administrative remedies within the executive machinery, namely, an

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appeal to the Secretary of Justice and then to the OP, and thereafter, appeal the
OPs decisions via Rule 43; or (c) he may directly resort to certiorari before the CA
strictly on jurisdictional grounds, provided that he explains why any of the
aforementioned remedies cannot be taken as "adequate and speedy."

VIID7. Office of the Solicitor General

The Office of the Solicitor General is an independent and autonomous office


attached to the Department of Justice. Although the OSG is attached to the DOJ, the
OSG is not a constituent unit of the DO. The DOJs authority, control and supervision
over the OSG are limited only to budgetary purposes.

The OSG is headed by the Solicitor General, who is the principal law officer
and legal defender of the Government. He is assisted by a Legal Staff composed of
at least thirty (30) Assistant Solicitors General, each heading a legal division. Each
division shall consist of ten (10) lawyers and such other personnel as may be
necessary for the office to effectively carry out its functions. 434

In accordance with E.O No. 292, the Administrative Code of 1987, the Solicitor
General was assisted by fifteen Assistant Solicitors General and more than a
hundred Solicitors and Associate Solicitors, who are divided into fifteen divisions. In
2006, with the passing of Republic Act 9417 or the OSG Law, the Office has
expanded to thirty (30) legal divisions with a corresponding increase in the general
and administrative support personnel and provision for ample office space. 435

As expressly mandated in Chapter 12, Title III, Book IV of the Administrative


Code of 1987, the OSG represents the Government of the Philippines, its agencies

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and instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers. When authorized by the
President or head of the office concerned, it shall also represent government owned
or controlled corporations.

The Office of the Solicitor General shall discharge duties requiring the
services of lawyers. It shall have the following specific powers and functions:

1. Represent the Government in the Supreme Court and the Court of Appeals
in all criminal proceedings; represent the Government and its officers in
the Supreme Court, the Court of Appeals, and all other courts or tribunals
in all civil actions and special proceedings in which the Government or any
officer thereof in his official capacity is a party;

2. Investigate, initiate court action, or in any manner proceed against any


person, corporation or firm for the enforcement of any contract, bond,
guarantee, mortgage, pledge or other collateral executed in favor of the
Government. Where proceedings are to be conducted outside of the
Philippines the Solicitor General may employ counsel to assist in the
discharge of the aforementioned responsibilities;

3. Appear in any court in any action involving the validity of any treaty, law,
executive order or proclamation, rule or regulation when in his judgment
his intervention is necessary or when requested by the Court;

4. Appear in all proceedings involving the acquisition or loss of Philippine


citizenship;

5. Represent the Government in all land registration and related


proceedings. Institute actions for the reversion to the Government of lands
of the public domain and improvements thereon as well as lands held in
violation of the Constitution;

6. Prepare, upon request of the President or other proper officer of the


National Government, rules and guidelines for government entities
governing the preparation of contracts, making investments, undertaking
of transactions, and drafting of forms or other writings needed for official
use, with the end in view of facilitating their enforcement and insuring
that they are entered into or prepared conformably with law and for the
best interests of the public;

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7. Deputize, whenever in the opinion of the Solicitor General the public
interest requires, any provincial or city fiscal to assist him in the
performance of any function or discharge of any duty incumbent upon
him, within the jurisdiction of the aforesaid provincial or city fiscal. When
so deputized, the fiscal shall be under the control and supervision of the
Solicitor General with regard to the conduct of the proceedings assigned
to the fiscal, and he may be required to render reports or furnish
information regarding the assignment;

8. Deputize legal officers of government departments, bureaus, agencies and


offices to assist the Solicitor General and appear or represent the
Government in cased involving their respective offices, brought before the
courts and exercise supervision and control over such legal Officers with
respect to such cases;

9. Call on any department, bureau, office, agency or instrumentality of the


Government for such service, assistance and cooperation as may be
necessary in fulfilling its functions and responsibilities and for this purpose
enlist the services of any government official or employee in the pursuit of
his tasks;

10.Departments, bureaus, agencies, offices, instrumentalities and


corporations to whom the Office of the Solicitor General renders legal
services are authorized to disburse funds from their sundry operating and
other funds for the latter Office. For this purpose, the Solicitor General and
his staff are specifically authorized to receive allowances as may be
provided by the Government offices, instrumentalities and corporations
concerned, in addition to their regular compensation;

11.Represent, upon the instructions of the President, the Republic of the


Philippines in international litigations, negotiations or conferences where
the legal position of the Republic must be defended or presented;

12.Act and represent the Republic and/or the people before any court,
tribunal, body or commission in any matter, action or proceedings which,
in his opinion affects the welfare of the people as the ends of justice may
require; and

13. Perform such other functions as may be provided by law. 436

VIIE. Department of Education

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Section 1, Article XIV of the 1987 Philippine Constitution decreed that [t]he
State shall protect and promote the right of all citizens to quality education at all
levels, and shall take appropriate steps to make such education accessible to all.
Section 2 thereof further decreed that [t]he State shall establish
and maintain, a system of free public education in the elementary and high school
levels. Without limiting the natural rights of parents to rear their children,
elementary education is compulsory for all children of school age.

In response to these constitutional mandates, the Department of Education


envisioned towards providing all Filipino children a free and compulsory education in
the elementary level and free education in the high school level. Such education
shall also include alternative learning systems for out-of-school youth and adult
learners. It shall be the goal of basic education to provide them with the skills,
knowledge and values they need to become caring, seIf-reliant, productive and
patriotic citizens.

The Department of Education was established through the Education Decree


of 1863 as the Superior Commission of Primary Instruction under a Chairman. The
Education agency underwent many reorganization efforts in the 20th century in
order to better define its purpose vis--vis the changing administrations and
charters. The present day Department of Education was eventually mandated
through Republic Act 9155, otherwise known as the Governance of Basic Education
act of 2001 which establishes the mandate of this agency. 437

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The Department of Education (DepEd) formulates, implements, and
coordinates policies, plans, programs and projects in the areas of formal and non-
formal basic education. It supervises all elementary and secondary education
institutions, including alternative learning systems, both public and private; and
provides for the establishment and maintenance of a complete, adequate, and
integrated system of basic education relevant to the goals of national
development.438

VIIF. Technical Education & Skills Development Authority

The Technical Education and Skills Development Authority (TESDA) is the


government agency tasked to manage and supervise technical education and skills
development (TESD) in the Philippines. It was created by virtue of Republic Act
7796, otherwise known as the Technical Education and Skills Development Act of
1994. The said Act integrated the functions of the former National Manpower and
Youth Council (NMYC), the Bureau of Technical-Vocational Education of the
Department of Education, Culture and Sports (BTVE-DECS) and the Office of
Apprenticeship of the Department of Labor and Employment (DOLE). 439

TESDA is an instrumentality of the government established under Republic


Act (R.A.) No. 7796 (the TESDA Act of 1994) and attached to the Department of
Labor and Employment (DOLE) to "develop and establish a national system of skills
standardization, testing, and certification in the country." To fulfill this mandate, it
sought to issue security-printed certification and/or identification polyvinyl (PVC)
cards to trainees who have passed the certification process.

Republic Act No. 7796 created the Technical Education and Skills
Development Authority or TESDA under the declared "policy of the State to provide
relevant, accessible, high quality and efficient technical education and skills
development in support of the development of high quality Filipino middle-level
manpower responsive to and in accordance with Philippine development goals and
priorities." TESDA replaced and absorbed the National Manpower and Youth Council,
the Bureau of Technical and Vocational Education and the personnel and functions
pertaining to technical-vocational education in the regional offices of the

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Department of Education, Culture and Sports and the apprenticeship program of the
Bureau of Local Employment of the DOLE.

Among others, TESDA is empowered to: approve trade skills standards and
trade tests as established and conducted by private industries; establish and
administer a system of accreditation of both public and private institutions;
establish, develop and support the institutions' trainors' training and/or programs;
exact reasonable fees and charges for such tests and trainings conducted, and
retain such earnings for its own use, subject to guidelines promulgated by the
Authority; and perform such other duties and functions necessary to carry out the
provisions of the Act, consistent with the purposes of the creation of TESDA.

Within TESDAs structure, as provided by R.A. No. 7769, is a Skills Standards


and Certification Office expressly tasked, among others, to develop and establish a
national system of skills standardization, testing and certification in the country;
and to conduct research and development on various occupational areas in order to
recommend policies, rules and regulations for effective and efficient skills
standardization, testing and certification system in the country. The law likewise
mandates that "There shall be national occupational skills standards to be
established by TESDA-accredited industry committees. The TESDA shall develop and
implement a certification and accreditation program in which private groups and
trade associations are accredited to conduct approved trade tests, and the local
government units to promote such trade testing activities in their respective areas
in accordance with the guidelines to be set by the TESDA. The Secretary of Labor
and Employment shall determine the occupational trades for mandatory
certification. All certificates relating to the national trade skills testing and
certification system shall be issued by the TESDA through its Secretariat."

All these measures are undertaken pursuant to the constitutional command


that "The State affirms labor as a primary social economic force," and shall "protect
the rights of workers and promote their welfare"; that "The State shall protect and
promote the right of all citizens to quality education at all levels, and shall take
appropriate steps to make such education accessible to all"; in order "to afford
protection to labor" and "promote full employment and equality of employment
opportunities for all."440

VIIG. Commission on Higher Education

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The Commission on Higher Education, created on May 18, 1994 under
Republic Act No. 7722, also known as the Higher Education Act of 1994, is
mandated under this law to foster and promote the right of all citizens to affordable
quality education at all levels and shall take appropriate steps to ensure that
education shall be accessible to all, and to ensure and protect academic freedom
and shall promote its exercise and observance for the continuing intellectual
growth, the advancement of learning and research, the development of responsible
and effective leadership, the education of high-level and middle-level professionals,
and the enrichment of our historical and cultural heritage. 441

The Commission on Higher Education (CHED), an attached agency to the


Office of the President for administrative purposes, is headed by a chairman and
four commissioners, each having a term of office of four years. The Commission En
Banc acts as a collegial body in formulating plans, policies and strategies relating to
higher education and the operation of CHED.

The creation of CHED was part of a broad agenda of reforms on the countrys
education system outlined by the Congressional Commission on Education (EDCOM)
in 1992. Part of the reforms was the trifocalization of the education sector into three
governing bodies: the CHED for tertiary and graduate education, the Department of
Education (DepEd) for basic education and the Technical Education and Skills
Development Authority (TESDA) for technical-vocational and middle-level
education.442

Given the national governments commitment to transformational leadership


that puts education as the central strategy for investing in the Filipino people,
reducing poverty, and building national competitiveness and pursuant to Republic
Act 7722, CHED shall:

a. Promote relevant and quality higher education (i.e. higher education


institutions and programs are at par with international standards and
graduates and professionals are highly competent and recognized in the
international arena);

b. Ensure that quality higher education is accessible to all who seek it


particularly those who may not be able to afford it;

c. Guarantee and protect academic freedom for continuing intellectual


growth, advancement of learning and research, development of
responsible and effective leadership, education of high level professionals,
and enrichment of historical and cultural heritages; and

d. Commit to moral ascendancy that eradicates corrupt practices,


institutionalizes transparency and accountability and encourages
participatory governance in the Commission and the subsector.

As the law now stands, the Secretary of Education, by virtue of Executive


Order No. 434 dated June 23, 2005, possesses delegated authority to exercise policy
oversight over the Commission on Higher Education, thus:

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Section 1. Delegation to the Secretary of Education (DepEd), The power of
the President under Section 17, Article Vll of the Constitution and as administrative
head of the Government to exercise policy oversight over the Commission on
Higher Education, is hereby delegated to the Secretary of Education.

In Review Center Association of the Philippines v. Executive Secretary, 443 a


question was raised before the Supreme Court, contesting whether or not the CHED
exercises regulatory powers over review centers.

The Court answered. Neither RA 7722 nor CHED Order No. 3, series of 1994
(Implementing Rules of RA 7722) defines an institution of higher learning or a
program of higher learning.

"Higher education," however, is defined as "education beyond the secondary


level" or "education provided by a college or university." x x x Hence, the term
"higher education" should be taken in its ordinary sense and should be read and
interpreted together with the phrase "degree-granting programs in all post-
secondary educational institutions, public and private." Higher education should be
taken to mean tertiary education or that which grants a degree after its completion.
Further, Articles 6 and 7 of the Implementing Rules provide:

Article 6. Scope of Application. - The coverage of the Commission shall be


both public and private institutions of higher education as well as degree granting
programs in all post-secondary educational institutions, public and private.

These Rules shall apply to all public and private educational institutions
offering tertiary degree programs.

The establishment, conversion, or elevation of degree-granting


institutions shall be within the responsibility of the Commission.

Article 7. Jurisdiction. - Jurisdiction over institutions of higher learning


primarily offering tertiary degree programs shall belong to the Commission.

Clearly, HEIs refer to degree-granting institutions, or those offering tertiary


degree or post-secondary programs. In fact, Republic Act No. 8292 or the Higher
Education Modernization Act of 1997 covers chartered state universities and
colleges. State universities and colleges primarily offer degree courses and
programs.

Sections 1 and 8, Rule IV of the RIRR define a review center and similar
entities as follows:

Section 1. REVIEW CENTER. - refers to a center operated and owned by a


duly authorized entity pursuant to these Rules intending to offer to the public
and/or to specialized groups whether for a fee or for free a program or course of
study that is intended to refresh and enhance the knowledge and competencies and

186
skills of reviewees obtained in the formal school setting in preparation for the
licensure examinations given by the Professional Regulations Commission (PRC).
The term review center as understood in these rules shall also embrace the
operation or conduct of review classes or courses provided by individuals whether
for a fee or not in preparation for the licensure examinations given by the
Professional Regulations Commission.

xxx xxx xxx

Section 8. SIMILAR ENTITIES the term refer to other review centers


providing review or tutorial services in areas not covered by licensure examinations
given by the Professional Regulations Commission including but not limited to
college entrance examinations, Civil Service examinations, tutorial services in
specific fields like English, Mathematics and the like.

The same Rule defines a review course as follows:

Section 3. REVIEW COURSE refers to the set of non-degree instructional


program of study and/or instructional materials/module, offered by a school with a
recognized course/program requiring licensure examination, that are intended
merely to refresh and enhance the knowledge or competencies and skills of
reviewees.

The scopes of EO 566 and the RIRR clearly expand the CHEDs coverage
under RA 7722. The CHEDs coverage under RA 7722 is limited to public and private
institutions of higher education and degree-granting programs in all public and
private post-secondary educational institutions. EO 566 directed the CHED to
formulate a framework for the regulation of review centers and similar entities.

The definition of a review center under EO 566 shows that it refers to one
which offers "a program or course of study that is intended to refresh and enhance
the knowledge or competencies and skills of reviewees obtained in the formal
school setting in preparation for the licensure examinations" given by the PRC. It
also covers the operation or conduct of review classes or courses provided by
individuals whether for a fee or not in preparation for the licensure examinations
given by the PRC.

A review center is not an institution of higher learning as contemplated by RA


7722. It does not offer a degree-granting program that would put it under the
jurisdiction of the CHED. A review course is only intended to "refresh and enhance
the knowledge or competencies and skills of reviewees." A reviewee is not even
required to enroll in a review center or to take a review course prior to taking an
examination given by the PRC. Even if a reviewee enrolls in a review center,
attendance in a review course is not mandatory. The reviewee is not required to

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attend each review class. He is not required to take or pass an examination, and
neither is he given a grade. He is also not required to submit any thesis or
dissertation. Thus, programs given by review centers could not be considered
"programs x x x of higher learning" that would put them under the jurisdiction of the
CHED.

Further, the "similar entities" in EO 566 cover centers providing "review or


tutorial services" in areas not covered by licensure examinations given by the PRC,
which include, although not limited to, college entrance examinations, Civil Services
examinations, and tutorial services. These review and tutorial services hardly
qualify as programs of higher learning.

VIII. NATIONAL GOVERNMENT BUDGETING


Policy is always a part of every budget and fiscal decision of any
Administration. The national budget the Executive prepares and presents to
Congress represents the Administrations "blueprint for public policy" and reflects
the Governments goals and strategies. As such, the national budget becomes a
tangible representation of the programs of the Government in monetary terms,
specifying therein the programs, activity or project (PAP) and services for which
specific amounts of public funds are proposed and allocated. Embodied in every
national budget is government spending. 444

The Government budgetary process has been graphically described to consist


of four major phases:445

1. Budget preparation. The first step is essentially tasked upon the Executive
Branch and covers the estimation of government revenues, the
determination of budgetary priorities and activities within the constraints
imposed by available revenues and by borrowing limits, and the
translation of desired priorities and activities into expenditure levels.

Budget preparation starts with the budget call issued by the


Department of Budget and Management. Each agency is required to
submit agency budget estimates in line with the requirements consistent
with the general ceilings set by the Development Budget Coordinating
Council (DBCC).

2. Legislative authorization. At this stage, Congress enters the picture and


deliberates or acts on the budget proposals of the President, and Congress
in the exercise of its own judgment and wisdom formulates an
appropriation act precisely following the process established by the
Constitution, which specifies that no money may be paid from the
Treasury except in accordance with an appropriation made by law.

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3. Budget Execution. Tasked on the Executive, the third phase of the budget
process covers the various operational aspects of budgeting. The
establishment of obligation authority ceilings, the evaluation of work and
financial plans for individual activities, the continuing review of
government fiscal position, the regulation of funds releases, the
implementation of cash payment schedules, and other related activities
comprise this phase of the budget cycle.

4. Budget accountability. The fourth phase refers to the evaluation of actual


performance and initially approved work targets, obligations incurred,
personnel hired and work accomplished are compared with the targets set
at the time the agency budgets were approved.

Each phase is distinctly separate from the others but they overlap in the
implementation of the budget during the budget year. 446

VIIIB. Budget Preparation


Section 22, Article VII of the 1987 Philippine Constitution mandatorily
commands the President to prepare and submit an Executive Budget to be
submitted to Congress, thus:

Section 22. The President shall submit to the Congress, within thirty days
from the opening of every regular session as the basis of the general appropriations
bill, a budget of expenditures and sources of financing, including receipts from
existing and proposed revenue measures.

Further, the budget preparation phase is supplemented in great detail under


the Administrative Code of 1987, in Chapter 3, Book VI on National Government
Budgeting.

The budget preparation phase is commenced through the issuance of a


Budget Call by the DBM. The Budget Call contains budget parameters earlier set by
the Development Budget Coordination Committee (DBCC) as well as policy
guidelines and procedures to aid government agencies in the preparation and
submission of their budget proposals. The Budget Call is of two kinds, namely: (1) a
National Budget Call, which is addressed to all agencies, including state universities
and colleges; and (2) a Corporate Budget Call, which is addressed to all

189
government-owned and -controlled corporations (GOCCs) and government financial
institutions (GFIs).

Following the issuance of the Budget Call, the various departments and
agencies submit their respective Agency Budget Proposals to the DBM. To boost
citizen participation, the current administration has tasked the various departments
and agencies to partner with civil society organizations and other citizen-
stakeholders in the preparation of the Agency Budget Proposals, which proposals
are then presented before a technical panel of the DBM in scheduled budget
hearings wherein the various departments and agencies are given the opportunity
to defend their budget proposals. DBM bureaus thereafter review the Agency
Budget Proposals and come up with recommendations for the Executive Review
Board, comprised by the DBM Secretary and the DBMs senior officials. The
discussions of the Executive Review Board cover the prioritization of programs and
their corresponding support vis--vis the priority agenda of the National
Government, and their implementation.

The DBM next consolidates the recommended agency budgets into the
National Expenditure Program (NEP) and a Budget of Expenditures and Sources of
Financing (BESF). The NEP provides the details of spending for each department and
agency by program, activity or project (PAP), and is submitted in the form of a
proposed GAA. The Details of Selected Programs and Projects is the more detailed
disaggregation of key PAPs in the NEP, especially those in line with the National
Governments development plan. The Staffing Summary provides the staffing
complement of each department and agency, including the number of positions and
amounts allocated.

The NEP and BESF are thereafter presented by the DBM and the DBCC to the
President and the Cabinet for further refinements or reprioritization. Once the NEP
and the BESF are approved by the President and the Cabinet, the DBM prepares the
budget documents for submission to Congress. The budget documents consist of:
(1) the Presidents Budget Message, through which the President explains the policy
framework and budget priorities; (2) the BESF, mandated by Section 22, Article VII
of the Constitution, which contains the macroeconomic assumptions, public sector
context, breakdown of the expenditures and funding sources for the fiscal year and
the two previous years; and (3) the NEP.

Public or government expenditures are generally classified into two


categories, specifically: (1) capital expenditures or outlays; and (2) current
operating expenditures. Capital expenditures are the expenses whose usefulness
lasts for more than one year, and which add to the assets of the Government,
including investments in the capital of government-owned or controlled
corporations and their subsidiaries. Current operating expenditures are the
purchases of goods and services in current consumption the benefit of which does

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not extend beyond the fiscal year. The two components of current expenditures are
those for personal services (PS), and those for maintenance and other operating
expenses (MOOE).

Public expenditures are also broadly grouped according to their functions


into: (1) economic development expenditures (i.e., expenditures on agriculture and
natural resources, transportation and communications, commerce and industry, and
other economic development efforts); (2) social services or social development
expenditures (i.e., government outlay on education, public health and medicare,
labor and welfare and others); (3) general government or general public services
expenditures (i.e., expenditures for the general government, legislative services,
the administration of justice, and for pensions and gratuities); (4) national defense
expenditures (i.e., sub-divided into national security expenditures and expenditures
for the maintenance of peace and order); and (5) public debt.

Public expenditures may further be classified according to the nature of


funds, i.e., general fund, special fund or bond fund.

On the other hand, public revenues complement public expenditures and


cover all income or receipts of the government treasury used to support
government expenditures.

Classical economist Adam Smith categorized public revenues based on two


principal sources, stating: "The revenue which must defraythe necessary
expenses of government may be drawn either, first from some fund which peculiarly
belongs to the sovereign or commonwealth, and which is independent of the
revenue of the people, or, secondly, from the revenue of the people." Adam Smiths
classification relied on the two aspects of the nature of the State: first, the State as
a juristic person with an artificial personality, and, second, the State as a sovereign
or entity possessing supreme power. Under the first aspect, the State could hold
property and engage in trade, thereby deriving what is called its quasi private
income or revenues, and which "peculiarly belonged to the sovereign." Under the
second aspect, the State could collect by imposing charges on the revenues of its
subjects in the form of taxes.

In the Philippines, public revenues are generally derived from the following
sources, to wit: (1) tax revenues (i.e., compulsory contributions to finance
government activities); (2) capital revenues(i.e., proceeds from sales of fixed capital
assets or scrap thereof and public domain, and gains on such sales like sale of
public lands, buildings and other structures, equipment, and other properties
recorded as fixed assets); (3) grants (i.e., voluntary contributions and aids given to
the Government for its operation on specific purposes in the form of money and/or
materials, and do not require any monetary commitment on the part of the
recipient); (4) extraordinary income (i.e., repayment of loans and advances made by

191
government corporations and local governments and the receipts and shares in
income of the Banko Sentral ng Pilipinas, and other receipts); and (5) public
borrowings (i.e., proceeds of repayable obligations generally with interest from
domestic and foreign creditors of the Government in general, including the National
Government and its political subdivisions).

More specifically, public revenues are classified as follows: 445

General Income Specific Income

1. Subsidy Income from National 1. Income Taxes


Government
2. Property Taxes
2. Subsidy from National Office
3. Taxes on Goods and Services
3. Subsidy from Regional Office/Staff
Bureaus 4. Taxes of International Trade and
Transactions
4. Income from Government Services
5. Other taxes
5. Income from Government
Business Operations 6. Fines and Penalties-Tax Revenue

6. Sales Revenue 7. Other Specific Income

7. Rent Income

8. Insurance Income

9. Dividend Income

10.Interest Income

11.Sale of Confiscated Goods and


Properties

12.Foreign Exchange (FOREX) Gains

13.Miscellaneous Operating and


Service Income

14.Fines and Penalties-Government


Services and Business Operations

15.Income from Grants and Donation

VIIIB. Budget Authorization

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The Administrative Code of 1987, in Chapter 4 Book VI on National
Government Budgeting, discusses the budget authorization phase, provides for the
prohibitions in the legislation of the national budget, and prescribes penal sanctions
for violation of the provisions thereof, thus:
Section 23. Content of the General Appropriations Act. - The General
Appropriations Act shall be presented in the form of budgetary programs and
projects for each agency of the government, with the corresponding appropriations
for each program and project, including statutory provisions of specific agency or
general applicability. x x x

Section 24. Prohibition Against the Increase of Appropriation. - The Congress


shall in no case increase the appropriation of any project or program of any
department, bureau, agency or office of the Government over the amount
submitted by the President in his budget proposal. x x x

xxx

Section 31. Liability for Unauthorized Printing Press Revisions. - It shall be


unlawful for any person to make any unauthorized revision of any figure, text or
provision in the General Appropriations Act and in the other budget documents
during or in the process of the printing. Any unauthorized change made either by
addition, modification or deletion, shall be null and void.

Persons who, in violation of this section, make any unauthorized revision in


the budget documents, shall be criminally liable for falsification of legislative
documents under the Revised Penal Code. When the offender is a government
official or employee, he shall, in addition to criminal prosecution, be dismissed from
the service.

The Budget Legislation Phase covers the period commencing from the time
Congress receives the Presidents Budget, which is inclusive of the NEP and the
BESF, up to the Presidents approval of the GAA. This phase is also known as the
Budget Authorization Phase, and involves the significant participation of the
Legislative through its deliberations.

Initially, the Presidents Budget is assigned to the House of Representatives


Appropriations Committee on First Reading. The Appropriations Committee and its
various Sub-Committees schedule and conduct budget hearings to examine the
PAPs of the departments and agencies. Thereafter, the House of Representatives
drafts the General Appropriations Bill (GAB).

The GAB is sponsored, presented and defended by the House of


Representatives Appropriations Committee and Sub-Committees in plenary session.
As with other laws, the GAB is approved on Third Reading before the House of
Representatives version is transmitted to the Senate.

193
After transmission, the Senate conducts its own committee hearings on the
GAB. To expedite proceedings, the Senate may conduct its committee hearings
simultaneously with the House of Representatives deliberations. The Senates
Finance Committee and its Sub-Committees may submit the proposed amendments
to the GAB to the plenary of the Senate only after the House of Representatives has
formally transmitted its version to the Senate. The Senate version of the GAB is
likewise approved on Third Reading.

The House of Representatives and the Senate then constitute a panel each to
sit in the Bicameral Conference Committee for the purpose of discussing and
harmonizing the conflicting provisions of their versions of the GAB. The
"harmonized" version of the GAB is next presented to the President for
approval. The President reviews the GAB, and prepares the Veto Message where
budget items are subjected to direct veto, or are identified for conditional
implementation.

If, by the end of any fiscal year, the Congress shall have failed to pass the
GAB for the ensuing fiscal year, the GAA for the preceding fiscal year shall be
deemed re-enacted and shall remain in force and effect until the GAB is passed by
the Congress.446

VIIIC. Budget Execution


The appropriation of public funds and the faithful implementation of the
general appropriation law are provided in Chapter 5, Book VI of the Administrative
Code of 1987, thus:

Section 32. Use of Appropriated Funds. - All moneys appropriated for


functions, activities, projects and programs shall be available solely for the specific
purposes for which these are appropriated.

Section 33. Allotment of Appropriations. - Authorized appropriations shall be


allotted in accordance with the procedure outlined hereunder:

1. Appropriations authorized for any Department or agency of the Government


may be made available for expenditure when the head of each Department
or agency submits to the Secretary a request for allotment of funds showing
the estimated amounts needed for each function, activity or purpose for
which the funds are to be expended during the applicable allotment period. x
xx

xxx

Section 40. Certification of Availability of Funds. - No funds shall be


disbursed, and no expenditures or obligations chargeable against any authorized

194
allotment shall be incurred or authorized in any department, office or agency
without first securing the certification of its Chief Accountant or head of accounting
unit as to the availability of funds and the allotment to which the expenditure or
obligation may be properly charged.

xxx

Section 43. Liability for Illegal Expenditures. - Every expenditure or obligation


authorized or incurred in violation of the provisions of this Code or of the general
and special provisions contained in the annual General or other Appropriations Act
shall be void. Every payment made in violation of said provisions shall be illegal and
every official or employee authorizing or making such payment, or taking part
therein, and every person receiving such payment shall be jointly and severally
liable to the Government for the full amount so paid or received.

xxx

With the GAA now in full force and effect, the next step is the implementation
of the budget. The Budget Execution Phase is primarily the function of the DBM,
which is tasked to perform the following procedures, namely: (1) to issue the
programs and guidelines for the release of funds; (2) to prepare an Allotment and
Cash Release Program; (3) to release allotments; and (4) to issue disbursement
authorities.

The implementation of the GAA is directed by the guidelines issued by the


DBM. Prior to this, the various departments and agencies are required to submit
Budget Execution Documents(BED) to outline their plans and performance targets
by laying down the physical and financial plan, the monthly cash program, the
estimate of monthly income, and the list of obligations that are not yet due and
demandable.

Thereafter, the DBM prepares an Allotment Release Program (ARP)and a Cash


Release Program (CRP).The ARP sets a limit for allotments issued in general and to a
specific agency. The CRP fixes the monthly, quarterly and annual disbursement
levels.

Allotments, which authorize an agency to enter into obligations, are issued by


the DBM. Allotments are lesser in scope than appropriations, in that the latter
embrace the general legislative authority to spend. Allotments may be released in
two forms through a comprehensive Agency Budget Matrix (ABM), or, individually,
by SARO.

Armed with either the ABM or the SARO, agencies become authorized to incur
obligations on behalf of the Government in order to implement their PAPs.

195
Obligations may be incurred in various ways, like hiring of personnel, entering into
contracts for the supply of goods and services, and using utilities.

In order to settle the obligations incurred by the agencies, the DBM issues a
disbursement authority so that cash may be allocated in payment of the obligations.
A cash or disbursement authority that is periodically issued is referred to as a Notice
of Cash Allocation (NCA), which issuance is based upon an agencys submission of
its Monthly Cash Program and other required documents. The NCA specifies the
maximum amount of cash that can be withdrawn from a government servicing bank
for the period indicated. Apart from the NCA, the DBM may issue a Non-Cash
Availment Authority(NCAA) to authorize non-cash disbursements, or a Cash
Disbursement Ceiling(CDC) for departments with overseas operations to allow the
use of income collected by their foreign posts for their operating requirements.

Actual disbursement or spending of government funds terminates the Budget


Execution Phase and is usually accomplished through the Modified Disbursement
Scheme under which disbursements chargeable against the National Treasury are
coursed through the government servicing banks. 447

VIIID. Budget Accountability

To ensure that public funds are appropriated for the purpose for which it was
intended, safeguards are provided for under Administrative Code of 1987, in
Chapter 6, Book VI on National Government Budgeting, thus:
xxx

Section 53. Monitoring of Expenditures. - Expenditures of national


government agencies shall be recorded so as to identify expenditures as classified
into such categories as may be determined by the Department of Budget and
Management x x x. The Secretary of Budget shall determine the data and
information requirements thus needed and the Commission on Audit shall formulate
the accounting rules and regulations, including changes in the Chart of Accounts
and the general or subsidiary accounting records, as may be necessary to generate
the desired data and information. x x x

xxx

Accountability is a significant phase of the budget cycle because it ensures


that the government funds have been effectively and efficiently utilized to achieve
the States socio-economic goals. It also allows the DBM to assess the performance
of agencies during the fiscal year for the purpose of implementing reforms and
establishing new policies.

196
An agencys accountability may be examined and evaluated through (1)
performance targets and outcomes; (2) budget accountability reports; (3) review of
agency performance; and (4) audit conducted by the Commission on Audit (COA). 448

Section 1, Article II of the 1987 Constitution declares that the Philippines is a


democratic and republican state where sovereignty resides in the people and all
government authority emanates from them. A republican government is a
responsible government whose officials hold and discharge their position as a public
trust that renders them at all times accountable to the people they are sworn to
serve. This principle of accountability proceeds from the constitutional tenet that
public office is a public trust and its corollary that the stability of our public
institutions relies on the ability of our civil servants to serve their constituencies
well.

Public officers are stewards who must use government resources efficiently,
effectively, honestly and economically to avoid the wastage of public funds. The
prudent and cautious use of these funds is dictated by their nature as funds and
property held in trust by the public officers for the benefit of the sovereign trustees
the people themselves and for the specific public purposes for which they are
appropriated. Thus, Article VI, Section 29(1) of the Constitution provides that no
money shall be paid out of any public treasury except in pursuance of an
appropriation law or other specific statutory authority.

To ensure accountability enforcement in the disbursement of public funds, the


1987 Constitution created the COA as an independent constitutional office charged
to audit government financial transactions. The Constitution empowered the COA
to examine, audit, and settle all accounts pertaining to the revenue and receipts of,
and expenditures or uses of funds and property, owned, held in trust by, or
pertaining to, the Government and its instrumentalities. Furthermore, our
Constitution exclusively authorized the COA to promulgate accounting and auditing
rules and regulations, including those for the prevention and disallowance of
irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or
uses of government funds and properties. 449

The COA is endowed with enough latitude to determine, prevent, and disallow
irregular, unnecessary, excessive, extravagant or unconscionable expenditures of
government funds. It is tasked to be vigilant and conscientious in safeguarding the
proper use of the government's, and ultimately the people's property. The exercise
of its general audit power is among the constitutional mechanisms that gives life to
the check and balance system inherent in our form of government. 450

The aphorism forged under Section 1, Article XI of the 1987 Constitution,


which states that "public office is a public trust," is an overarching reminder that
every instrumentality of government should exercise their official functions only in

197
accordance with the principles of the Constitution which embodies the parameters
of the peoples trust. The notion of a public trust connotes accountability, hence,
the various mechanisms in the Constitution which are designed to exact
accountability from public officers.

Among others, an accountability mechanism with which the proper


expenditure of public funds may be checked is the power of congressional
oversight. Congressional oversight may be performed either through: (a) scrutiny
based primarily on Congress power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear
before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation; or (b) investigation and monitoring of
the implementation of laws pursuant to the power of Congress to conduct inquiries
in aid of legislation.451

IX. ADMINISTRATIVE PROCEDURE

The Administrative Code of 1987, in Chapter 1, Book VII on Administrative


Procedure, has prescribed a set of rules on administrative procedure, thus:

Section 1. Scope. - This Book shall be applicable to all agencies as defined in


the next succeeding section, except the Congress, the Judiciary, the Constitutional
Commissions, military establishments in all matters relating exclusively to Armed
Forces personnel, the Board of Pardons and Parole, and state universities and
colleges.

The term agency is defined in Section 2(1), Chapter 1 of the same Book,
thus:
Section 2. Definitions. - As used in this Book:

(1) "Agency" includes any department, bureau, office, commission, authority


or officer of the National Government authorized by law or executive order to make
rules, issue licenses, grant rights or privileges, and adjudicate cases; research
institutions with respect to licensing functions; government corporations with
respect to functions regulating private right, privileges, occupation or business; and
officials in the exercise of disciplinary power as provided by law.

The phrase and adjudicate cases refers to the quasi-judicial power


of administrative bodies. Administrative agencies possess quasi-legislative or
rule-making powers and quasi-judicial or administrative adjudicatory powers. Quasi-
legislative or rule-making power is the power to make rules and regulations which
results in delegated legislation that is within the confines of the granting statute
and the doctrine of non-delegability and separability of powers.

Not to be confused with the quasi-legislative or rule-making power of an


administrative agency is its quasi-judicial or administrative adjudicatory power. This
is the power to hear and determine questions of fact to which the legislative policy

198
is to apply and to decide in accordance with the standards laid down by the law
itself in enforcing and administering the same law. The administrative body
exercises its quasi-judicial power when it performs in a judicial manner an act which
is essentially of an executive or administrative nature, where the power to act in
such manner is incidental to or reasonably necessary for the performance of the
executive or administrative duty entrusted to it. In carrying out their quasi-judicial
functions, the administrative officers or bodies are required to investigate facts or
ascertain the existence of facts, hold hearings, weigh evidence, and draw
conclusions from them as basis for their official action and exercise of discretion in a
judicial nature.452

In administrative law, a quasi-judicial proceeding involves: (a) taking and


evaluation of evidence; (b) determining facts based upon the evidence presented;
and (c) rendering an order or decision supported by the facts proved. 453 The
exercise of quasi-judicial functions involves a determination, with respect to the
matter in controversy, of what the law is; what the legal rights and obligations of
the contending parties are; and based thereon and the facts obtaining, the
adjudication of the respective rights and obligations of the parties. 454

The basic principles of administrative law instruct that "the essence of due
process in administrative proceeding is an opportunity to explain one's side or an
opportunity to seek reconsideration of the actions or ruling complained of. 455
Succinctly stated, administrative due process means reasonable opportunity to be
heard. 456

As applied to administrative proceedings, the cardinal primary requirements


of administrative due process are: (a) the right to a hearing, which includes the right
to present one's case and submit evidence in support thereof; (b) the tribunal must
consider the evidence presented; (c) the decision must have something to support
itself; (d) the evidence must be substantial; (e) the decision must be based on the
evidence presented at the hearing, or at least contained in the record and disclosed
to the parties affected; (f) the tribunal or body or any of its judges must act on its
own independent consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate; and (g) the board or body should, in all
controversial questions, render its decision in such manner that the parties to the
proceeding may know the various issues involved, and the reason for the decision
rendered.457

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Further, administrative bodies are not bound by the technical niceties of law
and procedure and the rules obtaining in courts of law. Administrative tribunals
exercising quasi-judicial powers are unfettered by the rigidity of certain procedural
requirements, subject to the observance of fundamental and essential requirements
of due process in justiciable cases presented before them. 458 In administrative
proceedings, the technical rules of pleading and procedure, and of evidence, are not
strictly adhered to; they generally apply only suppletorily. 459

IXA. Adjudication

The word adjudication is defined in Section 2(9), Chapter 1, Book VII of the
Administrative Code of 1987, viz.:
Section 2. Definitions. - As used in this Book:

xxx

(9) Adjudication" means an agency process for the formulation of a final


order.

xxx

The adjudication of administrative cases is further elaborated in Chapter 3,


Book VII of the Administrative Code of 19987, thus:

Section 10. Compromise and Arbitration. - To expedite administrative


proceedings involving conflicting rights or claims and obviate expensive litigations,
every agency shall, in the public interest, encourage amicable settlement, comprise
and arbitration.

Section 11. Notice and Hearing in Contested Cases.

1. In any contested case all parties shall be entitled to notice and hearing.
The notice shall be served at least five (5) days before the date of the
hearing and shall state the date, time and place of the hearing.

2. The parties shall be given opportunity to present evidence and argument


on all issues. If not precluded by law, informal disposition may be made of
any contested case by stipulation, agreed settlement or default.

xxx

200
Section 12. Rules of Evidence. - In a contested case:

1. The agency may admit and give probative value to evidence commonly
accepted by reasonably prudent men in the conduct of their affairs.

xxx

2. Every party shall have the right to cross-examine witnesses presented


against him and to submit rebuttal evidence.

xxx

Section 14. Decision. - Every decision rendered by the agency in a contested


case shall be in writing and shall state clearly and distinctly the facts and the law on
which it is based. The agency shall decide each case within thirty (30) days
following its submission. The parties shall be notified of the decision personally or
by registered mail addressed to their counsel of record, if any, or to them.

Compromises and arbitration are widely known and used as such acceptable
methods of resolving adversarial claims 460 A compromise is a contract whereby
the parties, by making reciprocal concessions, avoid a litigation or put an end to one
already commenced,461 while arbitration means a voluntary dispute resolution
process in which one or more arbitrators, appointed in accordance with the
agreement of the parties resolve a dispute by rendering an award. 462 Compromises
and arbitration are highly encouraged because it enable the speedy disposition of
administrative cases thus providing solutions that are less time-consuming, less
tedious and less confrontational.

The adjudication of administrative cases requires observance of the basic


requirements of due process of law. By "due process of law" we mean "a law which
hears before it condemns, which proceeds upon inquiry, and renders judgment only
after trial. Due process of law contemplates notice and opportunity to be heard
before judgment is rendered, affecting one's person or property." 463

201
The essence of due process in administrative proceedings is the opportunity
to explain ones side or seek a reconsideration of the action or ruling complained of.
As long as the parties are given the opportunity to be heard before judgment is
rendered, the demands of due process are sufficiently met. What is offensive to due
process is the denial of the opportunity to be heard. 464 Due process of law simply
means giving opportunity to be heard before judgment is rendered. In fact, there is
no violation of due process even if no hearing was conducted, where the party was
given a chance to explain his side of the controversy. What is frowned upon is the
denial of the opportunity to be heard. 465

Due process, as a constitutional precept, does not always and in all situations
require a trial-type proceeding. Due process is satisfied when a person is notified of
the charge against him and given an opportunity to explain or defend himself. In
administrative proceedings, the filing of charges and giving reasonable opportunity
for the person so charged to answer the accusations against him constitute the
minimum requirements of due process. 466

Thus, hearing in administrative proceedings and before quasi-judicial


agencies is neither oratorical contests nor debating skirmishes where cross
examination skills are displayed. Non-verbal devices such as written explanations,
affidavits, position papers or other pleadings can establish just as clearly and
concisely aggrieved parties' predicament or defense. 467 Where opportunity to be
heard either through oral arguments or through pleadings is accorded, there is no
denial of procedural due process.468

A formal or trial-type hearing is not at all times and in all instances


essential.469 In case of trial-type hearing, each party shall have the right to cross-
examine witnesses presented against him and to submit rebuttal evidence, unless
the parties waive it expressly or impliedly. The right to cross-examine witnesses
implies that no hearsay evidence be admitted, as the right of cross-examination is
the safeguard against its admission. However, administrative due process cannot be
fully equated with due process in its strict judicial sense. In administrative
proceedings, a formal or trial-type hearing is not always necessary and technical
rules of procedure are not strictly applied. Hence, the right to cross-examine is not
an indispensable aspect of administrative due process. 470

202
In an administrative case, the quantum of proof required is only substantial
evidence. To sustain a finding of administrative culpability, only substantial
evidence is required.471 Substantial evidence is defined as such amount of relevant
evidence which a reasonable mind might accept as adequate to support a
conclusion. It is more than a mere scintilla of evidence. The standard of substantial
evidence is satisfied when there is reasonable ground to believe, based on the
evidence submitted, that the respondent is responsible for the misconduct
complained of. It need not be overwhelming or preponderant, as is required in an
ordinary civil case, or evidence beyond reasonable doubt, as is required in criminal
cases, but the evidence must be enough for a reasonable mind to support a
conclusion.472

While both judicial and administrative proceedings require a hearing and the
opportunity to be heard, they differ with respect to the hearing required before a
decision can be made. In criminal cases where a constitutional presumption of
innocence exists, procedural judicial due process requires that judgment be
rendered upon lawful hearing where factual issues are tested through direct and
cross-examination of witnesses to arrive at proof beyond reasonable doubt. In civil
cases, evidentiary hearings are likewise a must to establish the required
preponderance of evidence. Administrative due process, on the other hand, requires
that the decision be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties concerned. Thus, substantial
reasons justify the variance in the hearing requirements for these proceedings. 473

In administrative proceedings, the burden of proof that respondent


committed the acts complained of rests on the complainant. 474 The burden of proof
rests upon the party who asserts the affirmative of an issue. 475 The complainant
must be able to show this by substantial evidence, or such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Otherwise, the
complaint must be dismissed.476

IXB. Administrative Appeal in Contested Cases

The right to appeal is not a constitutional, natural or inherent right it is a


statutory privilege and of statutory origin and, therefore, available only if granted or
provided by statute.477 The rules of procedure of some administrative tribunals
prescribe the requirements for appeal to higher administrative agencies. Some rules

203
require payment of appeal fees, the posting of appeal bond, and filing of notice of
appeal to be accompanied by a memorandum of appeal, which should point out the
assigned errors.

An appellant should comply with all the requirements for perfecting an appeal
applicable to specific cases in particular quasi-judicial agencies, otherwise his
appeal will be dismissed or denied due course. The reason is that the right to appeal
is neither a natural right nor is it a component of due process. It is a mere statutory
privilege, and may be exercised only in the manner and in accordance with the
provisions of law.478

In the absence of any specific rules applicable to a particular agency, the


appeal, if allowed by law, should comply with what Book VII of the 1987
Administrative Code, which provides for the appeal procedure. Its pertinent
provisions read:
Section 19. Appeal. - Unless otherwise provided by law or executive order, an
appeal from a final decision of the agency may be taken to the Department head.

Section 20. Perfection of Administrative Appeals. -

1. Administrative appeals under this Chapter shall be perfected within fifteen


(15) days after receipt of a copy of the decision complained of by the
party adversely affected, by filing with the agency which adjudicated the
case a notice of appeal, serving copies thereof upon the prevailing party
and the appellate agency, and paying the required fees.

2. If a motion for reconsideration is denied, the movant shall have the right
to perfect his appeal during the remainder of the period for appeal,
reckoned from receipt of the resolution of denial. If the decision is
reversed on reconsideration, the aggrieved party shall have fifteen (15)
days from receipt of the resolution of reversal within which to perfect his
appeal.

3. The agency shall, upon perfection of the appeal, transmit the records of
the case to the appellate agency.

Section 21. Effect of Appeal. - The appeal shall stay the decision appealed
from unless otherwise provided by law, or the appellate agency directs execution
pending appeal, as it may deem just, considering the nature and circumstances of
the case.

204
Section 22. Action on Appeal. - The appellate agency shall review the records of the
proceedings and may, on its own initiative or upon motion, receive additional
evidence.

Although appeal is an essential part of our judicial process, the right thereto
is not a natural right or a part of due process but is merely a statutory privilege.
Thus, the perfection of an appeal in the manner and within the period prescribed by
law is not only mandatory but also jurisdictional and failure of a party to conform to
the rules regarding appeal will render the judgment final and executory. Once a
decision attains finality, it becomes the law of the case and can no longer be
revised, reviewed, changed or altered. The basic rule of finality of judgment is
grounded on the fundamental principle of public policy and sound practice that, at
the risk of occasional error, the judgment of courts and the award of quasi-judicial
agencies must become final at some definite date fixed by law. 479

Decisions of administrative tribunals may be appealed to hider administrative


bodies, where the law or regulation so provide. The appellant should assign errors
committee, the general rule being that the appellate body may not pass upon errors
not assigned. However, the appellate body had broad discretionary power to waive
the lack of assignment of errors and consider errors not assigned, as in the following
instances: (a) Grounds not assigned as errors but affecting the jurisdiction of the
court over the subject matter; (b) Matters not assigned as errors on appeal but are
evidently plain or clerical errors within contemplation of law; (c) Matters not
assigned as errors on appeal but consideration of which is necessary in arriving at a
just decision and complete resolution of the case or to serve the interests of a
justice or to avoid dispensing piecemeal justice; (d) Matters not specifically
assigned as errors on appeal but raised in the trial court and are matters of record
having some bearing on the issue submitted which the parties failed to raise or
which the lower court ignored; (e) Matters not assigned as errors on appeal but
closely related to an error assigned; and (f) Matters not assigned as errors on appeal
but upon which the determination of a question properly assigned, is dependent. 480
Under the doctrine of qualified political agency, department secretaries are
alter egos or assistants of the President and their acts are presumed to be those of
the latter unless disapproved or reprobated by him. Thus, as a rule, an aggrieved
party affected by the decision of a cabinet secretary need not appeal to the Office
of the President and may file a petition for certiorari directly in the Court of Appeals
assailing the act of the said secretary. 481

A party aggrieved by the decision of the administrative officer hearing the


case may bring the decision on appeal or for review and invoke the jurisdiction of
the courts. However, as a general rule, recourse through court action cannot
prosper until all the remedies have been exhausted at the administrative level.
When an adequate remedy may be had within the Executive Department of the
government, but nevertheless, a litigant fails or refuses to avail himself of the same,
the judiciary shall decline to interfere. This traditional attitude of the courts is based
not only on convenience but likewise on respect; convenience of the party litigants
and respect for a co-equal office in the government. If a remedy is available within
the administrative machinery, this should be resorted to before resort can be made
to (the) court.482

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If a remedy within the administrative machinery can still be resorted to by
giving the administrative officer concerned every opportunity to decide on a matter
that comes within his jurisdiction, then such remedy should be exhausted first
before the courts judicial power can be sought. The party with an administrative
remedy must not merely initiate the prescribed administrative procedure to obtain
relief but also pursue it to its appropriate conclusion before seeking judicial
intervention in order to give the administrative agency an opportunity to decide the
matter itself correctly and prevent unnecessary and premature resort to the court.
The underlying principle of the rule rests on the presumption that the administrative
agency, if afforded a complete chance to pass upon the matter will decide the same
correctly.483

Under the doctrine of exhaustion of administrative remedies, recourse


through court action cannot prosper until after all such administrative remedies
have first been exhausted. If remedy is available within the administrative
machinery, this should be resorted to before resort can be made to courts. It is
settled that non-observance of the doctrine of exhaustion of administrative
remedies results in lack of cause of action, which is one of the grounds in the Rules
of Court justifying the dismissal of the complaint. 484

The premature invocation of the intervention of the court is fatal to ones


cause of action. The doctrine of exhaustion of administrative remedies is based on
practical and legal reasons. The availment of administrative remedy entails lesser
expenses and provides for a speedier disposition of controversies. Furthermore, the
courts of justice, for reasons of comity and convenience, will shy away from a
dispute until the system of administrative redress has been completed and
complied with, so as to give the administrative agency concerned every opportunity
to correct its error and dispose of the case.485

As a rule, judicial intervention is allowed only after exhaustion of


administrative remedies. Courts recognize that administrative agencies are better
equipped to settle factual issues within their specific field of expertise because of
their special skills and technical knowledge. For this reason, a premature invocation
of the courts judicial power is often struck down. This, however, is not an ironclad
rule as it admits of exceptions, viz: (1) When there is a violation of due process; (2)
When the issue involved is purely a legal question; (3) When the administrative
action is patently illegal amounting to lack or excess of jurisdiction; (4) When there
is estoppel on the part of the administrative agency concerned; (5) When there is
irreparable injury; (6) When the respondent is a department secretary whose acts as
an alter ego of the President bears the implied and assumed approval of the latter;
(7) When to require exhaustion of administrative remedies would be unreasonable;
(8) When it would amount to a nullification of a claim; (9) When the subject matter
is a private land in land case proceedings; (10) When the rule does not provide a
plain, speedy and adequate remedy; and (11) When there are circumstances
indicating the urgency of judicial intervention. 486

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The rule requiring exhaustion of administrative remedies applies only where
the administrative agency concerned exercises judicial or quasi-judicial functions. It
does not apply in the exercise of its rule-making or quasi-legislative power. 487

207