6/10/2018
2018 CRITICAL AREAS
IN
POLITICAL LAW
By: Atty. Enrique V. dela Cruz, Jr.
• Q: Can the President form a 25-man Consulayive
Commission that will prepare draft amendments to the
Constitution, which will then be submitted to Congress
acting as a Constituent Assembly?
• A: Yes. There is no prohibition under the Constitution.
– In effect, the amendments will still be enacted by
Congress upon a vote of ¾ of all its members acting
as Constituent Assembly (ConAss);
– “Any amendment to, or revision of, this Constitution may
be proposed by: (1) The Congress, upon a vote of three-
fourths of all its Members; (Art. XVII, Sec. 1, 1987
Constitution)
– A respected Constitutionalist, Fr. Joaquin Bernas, points
to the record of the Constitutional Convention that “the
two houses of Congress should vote separately” in
reaching the required 3/4 vote.
• QUESTION: With the popularity of
President Duterte, the members of the
PDP-Laban super majority in the House
of Representatives increased to almost
270, out of the 300 total membership in
the House. The Super majority in the
House decided that it was time to
propose amendments to the
Constitution.
• The Senators, however, were cool to the
idea. But the members of the House
insisted.
The Philippine
Constitution
• Q: Can the plebiscite for the new constitution
be held together with the 2019 elections?
• ANSWER:
• The doctrine of fair and proper submission to the people of
proposed constitutional amendments as enunciated by the
Court in Tolentino vs. Comelec (41 SCRA 702, 729)
mandates that "in order that a plebiscite for the ratification of
an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time, but ample basis for
an intelligent appraisal of the nature of the amendment per se
as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole."
• There must be fair submission and intelligent consent or
rejection. The people must be "sufficiently informed of the
amendments to be voted upon, to conscientiously
deliberate thereon, to express their will in a genuine
manner."
• QUESTION: They accordingly convened
Congress into a constituent assembly in
spite of the opposition of the majority of
the members of the Senate. When the
votes were counted, 275 members of the
House of Representatives approved the
proposed amendments. Only 10 Senators
supported such proposals.
• The proponents now claim that the
proposals were validly made, since more
than the required three-fourths vote of
Congress (combined) has been obtained.
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• QUESTION:
• The 14 Senators who voted against the
proposals claim that the proposals
needed not three-fourths vote of the
entire Congress but each house voting
separately.
• Since the required number of votes in the
Senate was not obtained, then there
could be no valid proposals, so argued
the Senators.
• Were the proposals validly adopted by
Congress? Explain.
• Q: What are the kinds of initiative under
the Initiative and Referendum Act?
• 1. Initiative on the Constitution—refers to
a petition proposing amendments to the
Constitution.
• 2. Initiative on statutes—refers to a
petition to enact a national legislation.
• 3. Initiative on local legislation—refers to
a petition proposing to enact a regional,
provincial, municipal, city, or barangay law,
resolution or ordinance. (Sec. 2 [a], RA
6735)
• Q: Can RA 6735 be used to directly propose
amendments to the Constitution?
• A: NO. The people are not accorded the power to "directly
propose, enact, approve, or reject, in whole or in part, the
Constitution" through the system of initiative.
• They can only do so with respect to "laws, ordinances, or
resolutions."
• Secondly, the Act does not provide for the contents of a
petition for initiative on the Constitution. Also, while the law
provides subtitles for National Initiative and Referendum
and for Local Initiative and Referendum, no subtitle is
provided for initiative on the Constitution.
• This means that the main thrust of the law is initiative and
referendum on national and local laws. (Defensor-
Santiago, et al., v. COMELEC, et al., G.R. No. 127325,
March 19, 1997).
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• ANSWER:
• NO. The proposals were not validly adopted, because the
ten (10) Senators who voted in favor of the proposed
amendments constituted less than three-fourths of all the
Members of the Senate.
•
• Although Section 1, Article XVII of the Constitution did not
expressly provide that the Senate and the House of
Representatives must vote separately, but since the nature
of our Congress is a BICAMERAL BODY, then the
Legislature consist of two (2) houses, both the house and
the senate must each vote separately and the 3/4th vote
required by the Constitution must be obtained from each
the House and the Senate separately. The determination
of one house must be submitted to the separate
determination of the other house [Miller v. Mardo, 2
SCRA 898 [1961].
• Q: Can the Constitution be amended or
revised directly by the people thru
initiative under RA 6735?
• A: NO.
• RA 6735 applies only to initiative and
referendum on national and local laws.
• Under RA 6735, initiative on the Constitution
is confined only to proposals to amend.
• The proposals will then have to be
submitted to Congress for enactment.
(Defensor-Santiago v. COMELEC, G.R.
No. 127325, March 19, 1997)
STATE IMMUNITY
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• Q: What are the limits on the doctrine of State
immunity?
• A:
• In as much as the State authorizes only legal acts by
its officers, unauthorized acts of government
officials or officers are not acts of the State, and
an action against the officials or officers by one
whose rights have been invaded or violated by such
acts, for the protection of his rights, is not a suit
against the State.
• The rationale for this ruling is that the doctrine
of state immunity cannot be used as an
instrument for perpetrating an injustice. [Shauff
v. CA, G.R. No. 90314, November 27, 1990, 191
SCRA 713].
• Q: UP Los Banos was sued because it failed to pay the
balance of the construction cost for its CAS Bldg. It lost
the case. The RTC issued a writ of execution and ordered
that funds of UP be garnished. Can UP invoke the
doctrine of State immunity?
• A: YES.
• Trial judges should not immediately issue writs of execution
or garnishment against the Government or any of its
subdivisions, agencies and instrumentalities to enforce
money judgments.
• They should bear in mind that the primary jurisdiction to
examine, audit and settle all claims of any sort due from
the Government or any of its subdivisions, agencies and
instrumentalities pertains to the Commission on Audit
(COA) pursuant to Presidential Decree No. 1445
(Government Auditing Code of the Philippines).
• [UP v. Judge Dizon, G.R. No. 171182, August 23, 2012].
• SUGGESTED ANSWER:
• The motion to dismiss should be denied. As
held in Secretary of the DPWH v. Sps.
Tecson, (G.R. No. 179334, April 21, 2015),
when the Government expropriates private
property without paying compensation, it is
deemed to have waived its immunity from
suit.
• Otherwise, the constitutional guarantee that
private property shall not be taken for public
use without payment of just compensation
will be rendered nugatory.
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• Q: UP Los Banos was sued because it failed to pay the
balance of the construction cost for its CAS Bldg. It lost
the case. The RTC issued a writ of execution and ordered
that funds of UP be garnished. Can UP invoke the
doctrine of State immunity?
• A: YES. UP is a government instrumentality, performing the
State’s constitutional mandate of promoting quality and
accessible education.
• The funds of the UP are government funds that are public in
character. They include the income accruing from the use of
real property ceded to the UP that may be spent only for the
attainment of its institutional objectives.
• Hence, UP funds could not be subject to execution or
garnishment. Suability of the State does not necessarily
mean its liability.
• The execution of the monetary judgment against the UP was
within the primary jurisdiction of the COA. [UP v. Judge
Dizon, G.R. No. 171182, August 23, 2012; J. Bersamin].
• QUESTION:
• The Republic of the Philippines, through the Department of
Public Works and Highways (DPWH), constructed a new
highway linking Metro Manila and Quezon province, and
which major thoroughfare traversed the land owned by
Mang Pandoy.
• The government neither filed any expropriation proceedings
nor paid any compensation to Mang Pandoy for the land
thus taken and used as a public road.
• Mang Pandoy filed a suit against the government to compel
payment for the value of his land.
• The DPWH filed a motion to dismiss the case on the ground
that the State is immune from suit.
• Mang Pandoy filed an opposition.
• Resolve the motion.
• Q: May prescription and laches be used to defeat an action
for just compensation which was filed 50 years after the
date of taking?
• A: NO. Laches is principally a doctrine of equity which is
applied to avoid recognizing a right when to do so would
result in a clearly inequitable situation or in an injustice.
• This doctrine finds no application in this case, since both
equity and the law direct that a property owner should be
compensated if his property is taken for public use.
• Neither shall prescription apply because of the long-
standing rule "that where private property is taken by the
Government for public use without first acquiring title
thereto either through expropriation or negotiated sale,
the owner’s action to recover the land or the value
thereof does not prescribe.”(Secretary of the DPWH v.
Sps. Tecson, G.R. No. 179334, April 21, 2015)
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• Q: The USS Guardian got grounded at the TRNP. The

US respondents were sued in their official capacity as
commanding officers of the US Navy who had control
and supervision over the USS Guardian and its crew.
Will the suit prosper?
• A:
• The alleged act or omission resulting in the unfortunate GENERAL PRINCIPLES
grounding of the USS Guardian on the TRNP was
committed while they were performing official military AND STATE POLICIES
duties.
• Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of
funds by the US government, the suit is deemed to be one
against the US itself.
• The principle of State immunity therefore bars the exercise
of jurisdiction by this Court over the persons of the
respondents. [Arigo v. Swift, 735 SCRA 102 (2014)]

QUESTION: ANSWER: YES

A leading food manufacturer and the DOST embarked on
field testing for a genetically modified species of eggplant
(BT Talong).
Several farmer groups filed suit (writ of kalikasan) assailing
the possible dangers to health and the environment.
The CA noted that there is yet no evidence of possible
health hazards or any danger to the environment.
It also noted that petitioners failed to present evidence to
prove their claim that Bt talong field trials violated
environmental laws and rules.
Nonetheless, the CA issued an injunction to restrain the
respondents from pursuing field trials on Bt Talong under
the precautionary principle of protecting the constitutional
right to a balanced and healthful ecology. Is the CA correct?
The precautionary principle bridges the gap in cases where
scientific certainty in factual findings cannot be achieved.
By applying the precautionary principle, the court may
construe a set of facts as warranting either judicial action or
inaction, with the goal of preserving and protecting the
environment.
This may be further evinced from the second paragraph where
bias is created in favor of the constitutional right of the people
to a balanced and healthful ecology.
In effect, the precautionary principle shifts the burden of
evidence of harm away from those likely to suffer harm and
onto those desiring to change the status quo. [International
Service for the Acquisition of Agri-Biotech Applications,
Inc.v. Greenpeace Southeast Asia (Philippines),G.R. No.
209271, 8 December 2015]

ANSWER: YES QUESTION:

For purposes of evidence, the precautionary principle
should be treated as a principle of last resort. When
these features — uncertainty, the possibility of
irreversible harm, and the possibility of serious harm
— coincide, the case for the precautionary principle
is strongest.
When in doubt, cases must be resolved in favor of the
constitutional right to a balanced and healthful
ecology.
Parenthetically, judicial adjudication is one of the
strongest fora in which the precautionary principle may
find applicability. [International Service for the Acquisition
of Agri-Biotech Applications, Inc.v. Greenpeace Southeast
Asia (Philippines),G.R. No. 209271, 8 December 2015]
The Moro Islamic Liberation Force (MILF) and
the Government Peace Panel (GPP) are
pushing for the passage of the Bangsamoro
Basic Law (BBL) that would establish an
autonomous Bangsamoro Region to be
considered an associated state (a state within
a state) in the Philippines.
It will have its own law-making powers and
police; but will be under the national
government with regard to foreign policy and
national defense. Is this Constitutional?
Explain.

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 6/10/2018

ANSWER: YES
NO. The concept of an associated state (state within a state) is
not recognized under the present Constitution. Indeed, the
concept implies powers that go beyond anything ever granted
by the Constitution to any local or regional government. It also
implies the recognition of the associated entity as a state.

The Constitution, however, does not contemplate any state in

LEGISLATIVE
this jurisdiction other than the Philippine State, much less does
it provide for a transitory status that aims to prepare any part of
Philippine territory for independence. Even assuming arguendo
DEPARTMENT
that the BBL would not necessarily sever any portion of
Philippine territory, the spirit animating it – which has betrayed
itself by its use of the concept of association – runs counter to
the national sovereignty and territorial integrity of the Republic
(Prov. of North Cotabato v. The Gov’t of the Rep. of the
Philippines, G.R. No. 183591, October 14, 2008).

How will the minority leader be selected?
While the Constitution mandates that the President
of the Senate must be elected by a number
constituting more than one half of all the members
thereof, it does not provide that the members who
will not vote for him shall ipso facto constitute the
"minority," who could thereby elect the minority
leader.
Verily, no law or regulation states that the defeated
candidate shall automatically become the minority
leader. The senate, by their own rules, will select the
minority leader.
Santiago v. Guingona GR No.134577 Nov. 18,
1998
What is the doctrine of Shifting
Majority?
For each House of Congress to pass a bill,
only the votes of the majority of those present
in the session, there being a quorum, is
required. (Vera v. Avelino, 1946)
Note: The basis for determining the
existence of a quorum in the Senate shall be
the total number of Senators who are
within the coercive jurisdiction of the
Senate.

Can major political parties participate in the

party-list elections?
Yes. Indisputably, the framers of the 1987
Constitution intended the party-list system to include
not only sectoral parties but also non-sectoral parties.
The framers intended the sectoral parties to constitute
a part, but not the entirety, of the party-list system.
PARTY-LIST As explained by Commissioner Wilfredo Villacorta,
political parties can participate in the party-list system
"[F]or as long as they field candidates who come from
the different marginalized sectors that we shall
designate in this Constitution." (Atong Paglaum, Inc.
v. COMELEC, G.R. No. 203766. April 2, 2013.)

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Is it necessary for a party-list nominee to actually belong
to the marginalized sector that he seeks to represent?
• A nominee who does not actually possess the
marginalized and underrepresented status represented by
the party-list group but proves to be a genuine advocate of
the interest and concern of the marginalized and
underrepresented sector represented is still qualified to be
a nominee.
• Since political parties are identified by their ideology or platform
of government, bona fide membership, in accordance with the
political party's constitution and by-laws, would suffice.
• Subject to the above, the disqualification of the nominee
does not necessarily mean the disqualification of the party
since all the grounds for cancellation or refusal of registration
pertain to the party itself. (Atong Paglaum, Inc. v. COMELEC,
G.R. No. 203766. April 2, 2013.)
• Number of seats available
• to legislative districts
• -------------------------------- x .20 = Number of seats available
.80 to party-list representatives
• This formula allows for the corresponding increase in the
number of seats available for party-list representatives
whenever a legislative district is created by law.
• After prescribing the ratio of the number of party-list
representatives to the total number of representatives,
the Constitution left the manner of allocating the seats
available to party-list representatives to the wisdom of
the legislature. (Barangay Association for National
Advancement and Transparency (BANAT v. COMELEC,
G.R. No. 179271, Apr. 21, 2009)
3. Three-seat limit. Each qualified party,
regardless of the number of votes it
actually obtained, provided that it has
secured more than 2% of the total valid
votes cast for party list system, is entitled
only to a maximum of 3 seats; and
4. Proportional representation. The
additional seats which a qualified party is
entitled to shall be computed “in proportion
to their total number of votes”
• (Veterans Federation Party v. Comelec, G.R. No.136781, October
6, 2000).
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• Q: What is the formula mandated by the
Constitution in determining the number of
party-list representatives?
• A: The House of Representatives shall be
composed of not more than two hundred and
fifty members, unless otherwise fixed by law.
(Section 5 (1), Article VI of the 1987
Constitution).
• The number of seats available to party-list
representatives is based on the ratio of party-list
representatives to the total number of
representatives.
FOUR INVIOLABLE PARAMETERS TO DETERMINE
WINNERS IN THE PARTY-LIST ELECTIONS:
(1) 20% allocation. The Party-List
representatives shall constitute 20% of total
number of the members of the House including
those under the Party-List;
(2) 2% threshold. Only those parties garnering
a minimum of 2% of the total valid votes cast for
the Party-List system are qualified to have a seat
in the House of Representatives;
• How do we determine the number of seats in the
House of Representative allotted for party list
representatives?
• BANAT V. COMELEC (2009)
• Party-list representatives constitute 20% of the
total number of members of the House of
Representative. (Total number means inclusive
of those under the party-list). From there, the
following formula is derived:
• There are presently 220 legislative districts,
according to the BANAT Case there are 55
party-list seats available. THIS MUST BE
FILLED-UP.
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• BANAT V. COMELEC (2009)
• Parties receiving at least 2% of the total
votes cast for the party-list system shall be
entitled to one seat each (one seat for every
2%);
• No party shall be entitled to more than 3
seats;
• The remaining parties (with less than 2%)
will be ranked according to their total
votes garnered and will be entitled to a
seat each until the vacant party-list seats
are all filled-up.
May members of Congress be
suspended during their tenure?
YES.
“… each house may determine the rules of its
proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-
thirds of all its Members, suspend or expel
a Member. A penalty of suspension, when
imposed, shall not exceed sixty days.“
Section 16 (3), Article VI of the Constitution
Can a senator or congressman be suspended by
the Sandiganbayan or the Ombudsman?
A: YES. Members of Congress may also be
suspended by the Sandiganbayan or by the Office of
the Ombudsman (Paredes v. Sandiganbayan G.R.
No. 118364. August 10, 1995; Santiago v.
Sandiganbayan, G.R. No. 128055, April 18, 2001).
The doctrine of separation of powers by itself may not
be deemed to have effectively excluded members of
Congress from Republic Act No. 3019 nor from its
sanctions.
The order of suspension prescribed by Republic Act
No. 3019 is distinct from the power of Congress to
discipline its own ranks under the Constitution.
6/10/2018
DISCIPLINE OF
MEMBERS
What is contemplated by disorderly
behavior?
The interpretation of the phrase disorderly
behavior is the prerogative of the House
concerned and cannot be judicially reviewed
(Osmeña v. Pendatun, GR L-17144, October 28,
1960).
Note:
Alejandro v. Quezon, 46 Phil. 83 (1924)
(suspension of senator for disorderly conduct for
assaulting a fellow senator):
Osmeña v. Pendatun, 109 Phil. 863 (1960)
(suspension of senator for disorderly behavior for
imputing bribery to President Garcia)
Automatic Preventive Suspension
"SECTION 13. Suspension and loss of
benefits. — Any incumbent public officer
against whom any criminal prosecution
under a valid information under this Act or
under Title 7, Book II of the Revised Penal
Code or for any offense involving fraud
upon government or public funds or
property whether as a simple or as a complex
offense and in whatever stage of execution and
mode of participation, is pending in court, shall
be suspended from office.
(Section 13, RA 3019)
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Is notice and hearing required?
A: NO.
The law does not require that the guilt of the
accused must be established in a pre-suspension
proceeding before trial on the merits proceeds.
Neither does it contemplate a proceeding to
determine (1) the strength of the evidence of
culpability against him, (2) the gravity of the offense
charged, or (3) whether or not his continuance in
office could influence the witnesses or pose a threat
to the safety and integrity of the records and other
evidence before the court could have a valid basis in
decreeing preventive suspension pending the trial of
the case. Santiago v. Sandiganbayan, G.R. No.
128055, April 18, 2001
What is the scope of subject matter
of the power to conduct inquiries in
aid of legislation?
Indefinite. The field of legislation is very
wide as compared to that of the American
Congress. And because of such, the field
of inquiry is also very broad. It may cover
administrative inquiries, social, economic,
political problem (inquiries), discipline of
members, etc. Suffice it to say that it is co-
extensive with legislative power. (Arnault
v. Nazareno, GR L-3820 July 18, 1950)
c. The investigation must be in aid of
legislation.
d. Congress may not summon the President
as witness or investigate the latter in view
of the doctrine of separation of powers
except in impeachment cases.
Note: It is the President’s prerogative to
divulge or not the information which he
deems confidential or prudent/in the public
interest.
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LEGISLATIVE
INQUIRIES
The following limitations, however, should be taken into
consideration:
a. Constitutional rights to counsel and against self
incrimination – even if the investigation is not a
criminal investigation, the information divulge therein
may be used in criminal prosecution (Under Sec. 21,
Art. VI, it is provided that the rights of 1987
Constitution, the persons appearing in or affected by
such inquiries shall be respected)
b. The rules of procedures to be followed in such
inquiries shall be published for the guidance of those
who will be summoned. This must be strictly
followed so that the inquires are confined only to the
legislative purpose. This is also to avoid abuses.
e. Congress may no longer punish the witness
in contempt after its final adjournment. The
basis of the power to impose such penalty is
the right to self-preservation. And such right
is enforceable only during the existence of
the legislature (Lopez v. Delos Reyes GR L-
34361 Nov. 5, 1930)
f. Congress may no longer inquire into the
same justiciable controversy already before
the court (Bengzon v. Blue Ribbon
Committee, GR 89914 Nov. 20, 1991)
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What is the so-called ‘Question Hour’?
The heads of departments may upon their own initiative
with the consent of the President, or upon the request
of either House, as the rules of each house shall
provide, appear before and be heard by such House on
any matter pertaining to their departments.
Written questions shall be submitted to the President of
the Senate or the Speaker of the HoR at least 3 days
before their scheduled appearance.
Interpellations shall not be limited to written questions,
but it may cover matters related thereto. (Sec. 22, Art.
VI).
What is executive privilege?
Executive privilege exempts the executive from
disclosure requirements applicable to the ordinary
citizen or organization where such exemption is
necessary to the discharge of highly important
executive responsibilities involved in maintaining
governmental operations.
Note: Executive privilege is invoked in relation to
specific categories of information and not to
categories of persons.
Neri v. Senate, G.R. No. 180643, 25 March 2008.
How is the claim of executive privilege
properly invoked?
There must be a formal claim of privilege,
lodged by the Head of the department which
has control over the matter.
A formal and proper claim of executive
privilege requires “a precise and certain
reason” for preserving their confidentiality.
Neri v. Senate, G.R. No. 180643, 25 March
2008.
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Distinguish Question Hour from
Legislative Investigation.
Sec. 22 (QH) Congress’ oversight function –
limited to information gathering – attendance of
exec officials subject to the president’s
consent;
Sec. 21 (LI) is plenary -- objective is to elicit
information that may be used for legislation.
The president cannot prohibit the attendance of
witnesses.
(Senate v. Ermita, G.R. Nos. 169777, 20 April
2006)
Who may invoke executive privilege?
It is only the President who has the power to
invoke the privilege.
She may of course authorize the Executive
Secretary to invoke the privilege on her
behalf, in which case the Executive
Secretary must state that the authority is
“By order of the President”.
(Senate v. Ermita, G.R. Nos. 169777, 20
April 2006).
Can Congress require the executive to
state the reasons for the claim with
particularity?
No. Congress must not require the
executive to state the reasons for the claim
with such particularity as to compel
disclosure of the information which the
privilege is meant to protect
(Senate v. Ermita, G.R. No. 169777, 20 April
2006).
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Are matters involving diplomatic
negotiations covered by executive
privilege?
Yes. It is clear that while the final text of the JPEPA
may not be kept perpetually confidential, the offers
exchanged by the parties during the negotiations
continue to be privilege even after the JPEPA is
published. Disclosing these offers could impair the
ability of the Philippines to deal not only with Japan but
with other foreign governments in future negotiations
(AKBAYAN Citizen’s Action Party v. Aquino et al., G.R.
No. 170516, 16 July 2008)
Note: Such privilege is only presumptive.
• ANSWER:
• A: Yes. This is now explicit in Art. VI, Sec. 21
of the 1987 Constitution.
• And this power of inquiry carries with it the
authority to exact information on matters
which Congress is competent to legislate.
• Once an inquiry is established to be within
the jurisdiction of a legislative body to make,
the investigation committee has the power to
require the witness to answer any question
pertinent to the subject of the inquiry and
punish a recalcitrant or unwilling witness for
contempt. [Arnault v. Nazareno, 1950]
• QUESTION:
• Can former BOC Commissioner Nicanor Faeldon validly
invoke executive privilege? Is he shielded by executive
privilege from responding to the inquiries of the Senate
Committee? Explain briefly. If the answer is no, is there any
sanction that may be imposed upon him?
• SUGGESTED ANSWER:
• NO. He cannot invoke executive privilege. Only the
President or the Executive Secretary by order of the
President can invoke executive privilege. Besides, the matter
being asked is not covered by executive privilege because it
does not involve any discussion with the President. (Senate
of the Philippines v. Ermita, 488 SCRA 13 [2006].)
• For refusing to testify, he may be cited for contempt and
ordered to be arrested. (De la Paz v. Senate Committee on
Foreign Relations, 519 SCRA 521 [2009].)
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• QUESTION:
• Six (6) department heads of the provincial government of
Ilocos Norte appeared before the House Blue Ribbon
Committee as resource persons in the investigation being
conducted by the said committee with regard to the alleged
mis-use of the excise taxes collected from Tobacco
companies in the province.
• Cong. Rudy Farinas asked several questions to these
resource persons and when he was not satisfied with the
answers given (since most of them said they could no longer
remember the facts), he moved to cite them in contempt.
• Can the House validly cite them in contempt and detain
them?
• What is the legal basis of such power (if any) and what are
its limitations?
• Q: The Senate Blue Ribbon Committee sent a subpoena
to Former Bureau of Customs Commissioner Nicanor
Faeldon requiring him to appear in the investigation being
conducted by the said Senate Committee with regard to the
TARA system in the BOC. But Faeldon refused to attend
the hearing on the ground that there is already a case
pending with the Office of the Ombudsman. Is he correct?
• ANSWER: NO. The mere filing of a criminal or an
administrative complaint before a court or a quasi-judicial
body should not automatically bar the conduct of
legislative investigation. Otherwise, it would be extremely
easy to subvert any intended inquiry by congress through the
convenient ploy of instituting a criminal or an administrative
complaint. Surely, the exercise of sovereign legislative
authority can not be made subordinate to a criminal or an
administrative investigation. (Standard Chartered Bank v.
Senate, G.R. No. 167173, December 27, 2007)
Salaries, Privileges
and
Disqualifications
10

Q: Is the PDAF Constitutional? (2013)
A: NO.
It is unconstitutional for Congress to allocate funds unto
themselves and participate in its implementation and
disbursement.
All prosecutorial organs of the government, within the bounds
of reasonable dispatch, should investigate and accordingly
prosecute all government officials and/or private individuals for
possible criminal offenses related to the irregular, improper
and/or unlawful disbursement/utilization of all funds under
the Pork Barrel System”
(Belgica, et al. vs. Hon. Sen. Paquito N. Ochoa, G.R. No.
208566; SJS President S. Alcantara vs. Hon. Franklin Drilon, et
al., G.R. No. 208493; Pedrito M. Nepomuceno vs. Pres.
Benigno S. Aquino III, G.R. No. 209251 (November 19, 2013) )
A: The President does not possess the authority
to scrap the appropriated funds and declare it as
savings.
The President cannot decide not to spend the
money allocated by Congress. Savings cannot be
had in the middle of the year.
The President is required to implement all laws. The
GAA is a law. His only mandate is to implement it,
as passed by Congress – which includes the budget
for the bridge in Ilo-Ilo City.
Generally, he cannot replace legislative discretion
with his own personal judgment as to the wisdom of
a law [Araullo v. Aquino III, 728 SCRA 1 (2014) and 749
SCRA 284]
Q: What specific features of the DAP render it
unconstitutional?
A: The SC declared as illegal:
(1) cross border transfers of the savings of the Executive to
augment appropriation of other offices outside the
Executive;
(2) funding of projects, activities and programs that were not
covered by any appropriation in the General Appropriations
Act; and
(3) withdrawal of unobligated allotment from the implementing
agencies and the declaration of the withdrawn, unobligated
allotments and unreleased appropriations as savings prior
to the end of the fiscal year and without complying with the
statutory definition of savings contained in the GAA.
[Araullo v. Aquino III, 728 SCRA 1 (2014) and 749 SCRA
284]
6/10/2018
Q: President Duterte, concerned about persistent reports
of widespread irregularities and shenanigans related to the
alleged ghost projects with which the pork barrel funds of
members of Congress had been associated, decided not to
release the funds authorized under the General
Appropriations Act for the construction of a new bridge in Ilo-
Ilo City.
President Duterte explained that, to properly conserve and
preserve the limited funds of the government, as well as to
avoid further mistrust by the people, such a project – which
he considered as unnecessary since there was an old bridge
near the proposed bridge which was still functional – should
be scrapped. He then declared the money as “savings” and
used it to build a drug-rehabilitation facility in Caloocan City.
Does the President have such authority? Explain.
A: In the case of Sanchez, et al., vs. COA
[April 23, 2008], the Supreme Court ruled that the
President cannot indiscriminately transfer
funds from one department, bureau, office or
agency of the Executive Department to any
program, project or activity of any department,
bureau or office included in the General
Appropriations Act or approved after its
enactment, without regard to whether the funds to
be transferred are actually savings in the item from
which the same are to be taken, or whether or not
the transfer is for the purpose of augmenting the
item to which the transfer is to be made.
INCOMPATIBLE
AND
FORBIDDEN
OFFICES
11

INCOMPATIBLE OFFICE
Sec. 13. 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. [Section 13, Article VI of the 1987
Constitution]
A: NO. The government does not control the PNRC. Under
the PNRC Charter, as amended, only 6 of the 30
members of the PNRC Board of Governors are
appointed by the President of the Philippines, while the
other 24 members, or 4/5, are elected or chosen by the
private sector members of the PNRC. The vast majority
of the thousands of PNRC members are private
individuals, including students. Hence, the PNRC is
controlled by private sector individuals.
Also, it is the PNRC Board that can review, reverse, or
modify the decisions or actions of the PNRC Chairman,
and not the President. Thus, the PNRC is not
government-owned or controlled corporation but privately
owned, privately funded, and privately run charitable
organization. (Liban et al. v. Gordon, G.R. No. 175352,
January 18, 2011).
Parliamentary
Immunities
6/10/2018
Q: Richard Gordon was elected as Senator. During his
term, he was also elected as Chairman of the Philippine
National Red Cross (PNRC) by the Board of Governors.
Petitioners allege that by accepting the chairmanship of
the PNRC Board of Governors, Sen. Gordon has ceased
to be a member of the Senate as provided in Sec. 13, Art.
VI of the Constitution, prohibiting a Senator or Member of
the HOR to hold any other office or employment in the
Government, or any subdivision, agency, instrumentality
thereof, including GOCC’s or their subsidiaries during his
term without forfeiting his seat.
Is the office of the PNRC Chairman a government office
or an office in a GOCC for purposes of the prohibition in
Section 13, Art. VI of the Constitution.
Is the PNRC (Red Cross) a GOCC, therefore its employees
are within the jurisdiction of the CSC?
• Yes. As ruled by this Court in Liban, et al. v. Gordon, the
PNRC, although not a GOCC, is sui generis in character,
thus, requiring this Court to approach controversies
involving the PNRC on a case-to-case basis.
• In this particular case, the CA did not err in ruling that the
CSC has jurisdiction over the PNRC because the issue at
hand is the enforcement of labor laws and penal statutes,
thus, in this particular matter, the PNRC can be treated as a
GOCC, and as such, it is within the ambit of Rule I, Section
1 of the Implementing Rules of Republic Act 6713.
• Thus, having jurisdiction over the PNRC, the CSC had
authority to modify the penalty and order the dismissal of
petitioner from the service. [Torres v. De Leon, G.R. No.
199440. January 18, 2016]
• Q: What is immunity from arrest?
• A: Legislators are privileged from arrest while
Congress is “in session” with respect to offenses
punishable by up to 6 years of imprisonment.
• Hence, the commission of serious crimes, i.e.,
crimes punishable by afflictive penalties or with
capital punishment, does not fall within the scope
of the constitutional privilege.
• A member of Congress could only invoke the
immunity from arrests for relatively minor offenses,
punishable at most by correctional penalties.
(People v. Romeo Jalosjos, February 3, 2000)
12
 6/10/2018

• Q: May a congressman convicted of rape be

allowed to attend session in Congress pending • Q: What is legislative privilege?
his appeal? • A: No member shall be questioned
• A: No. To allow accused-appellant to attend
legislative sessions would constitute an unjustified or held liable in any forum other
broadening of the privilege from arrest bestowed by than his/her respective
the Constitution upon members of Congress.
Congressional body for any debate
• The trial court's judgment of conviction imports that
the evidence of guilt of the crime charged is strong. or speech in Congress or in any
Unquestionably, the continued incarceration of committee thereof.
accused-appellant is a valid and constitutionally
mandated curtailment of his rights to provisional
liberty pending appeal of his conviction. (People v.
Romeo Jalosjos, February 3, 2000)

• Q: What are the limitations on legislative privilege? • Q: Can a senator-lawyer be disbarred or

• Protection is only against forum other than Congress itself.
Thus, for inflammatory remarks, which are otherwise
privileged, a member may be sanctioned by either the
Senate or the House as the case may be.
• The “speech or debate” must be made in performance of
their duties as members of Congress.
Congress need not be in session when the utterance is
made, as long as it forms part of legislative action i.e. part
of the deliberative and communicative process used to
participate in legislative proceedings in consideration of
proposed legislation or with respect to other matters with
Congress’ jurisdiction.
disciplined by the Supreme Court for
statements made during a privilege
speech?
• A: No. The plea of Senator Santiago for the
dismissal of the complaint for disbarment or
disciplinary action is well taken. Indeed, her
privilege speech is not actionable criminally
or in a disciplinary proceeding under the
Rules of Court. (Pobre v. Sen. Defensor-Santiago,
A.C. No. 7399, Aug. 25, 2009)

• Q: Is it ok for a senator to criticize the Supreme

Court in a privilege speech?
• A: No. The Senator’s offensive and disrespectful
language definitely tended to denigrate the institution.
It is imperative on the Court’s part to re-instill in
Senator/Atty. Santiago her duty to respect courts of
CONGRESSIONAL
justice, especially this Tribunal, and remind her anew
that parliamentary non-accountability thus granted to
members of Congress is not to protect them against
ELECTORAL
prosecutions for their own benefit, but to enable them,
as the people’s representatives, to perform the
functions of their office without fear of being made
TRIBUNALS
responsible before the courts or other forums outside
the congressional hall. (Pobre v. Sen. Defensor-Santiago,
A.C. No. 7399, Aug. 25, 2009)

13

What is the composition of the
electoral tribunal?
1. 3 Supreme Court Justices designated by the
Chief Justice; and
2. 6 members of the Chamber concerned (Senate
or HoR) chosen on the basis of proportional
representation from the political parties and
parties registered under the party-list system.
Note: The senior Justice in the Electoral
Tribunal shall be its chairman. Members chosen
enjoy security of tenure and cannot be removed
by mere change of party affiliation.
When will a winning candidate be
considered a member of Congress?
To be considered a Member of the House of
Representatives, there must be a concurrence of the
following requisites: (1) a valid proclamation, (2) a
proper oath, and (3) assumption of office.
The term of office of a Member of the House of
Representatives begins only "at noon on the
thirtieth day of June next following their
election.“ Thus, until such time, the COMELEC
retains jurisdiction. [REYES v. COMELEC, G.R. No.
207264. June 25, 2013.]
Question: Can the House Speaker be compelled by
Mandamus to recognize Velasco as the lawful
congressman of Marinduque?
Answer: YES. The administration of oath and the registration
of Velasco in the Roll of Members of the House are no longer
a matter of discretion or judgment on the part of Speaker
Belmonte, Jr. He is legally duty-bound to recognize Velasco as
the duly elected Congressman of Marinduque in view of the
ruling rendered by the SC which is now final and executory.
It is well past the time for everyone concerned to accept what
has been adjudicated and take judicial notice of the fact that
Reyes's ineligibility to run for and be elected to the subject
position had already been long affirmed by the SC.
Any ruling deviating from such established ruling will be
contrary to the Rule of Law and should not be countenanced.
[Velasco v. Belmonte, Jr.,G.R. No. 211140, 12 January
2016]
6/10/2018
What is the jurisdiction of the Electoral
Tribunals?
Each electoral tribunal shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective members (Sec. 17,
Art. VII, 1987 Constitution).
HRET's jurisdiction as the sole judge of all contests
relating to the elections, returns and qualifications of
members of Congress begins only after a
candidate has become a member of the House of
Representatives. [Marcos v. COMELEC, 318 Phil.
329, 397 (1995).]
How should the oath of office be taken by a winning
candidate to be considered a member of Congress?
Section 6, Rule II (Membership) of the Rules of the
House of Representatives provides:
Section 6. Oath or Affirmation of Members. —
Members shall take their oath or affirmation either
collectively or individually before the Speaker in
open session.
Consequently, before there is a valid or official
taking of the oath it must be made (1) before the
Speaker of the House of Representatives, and (2)
in open session.
[REYES v. COMELEC, G.R. No. 207264. June 25,
2013.]
• Q: Does the HRET have authority to pass upon the
eligibilities of the nominees of the party-list groups that
won in the lower house of Congress?
• A: Yes. Party-list nominees are elected members of the
HoR no less than the district representatives are, the HRET
has jurisdiction to hear and pass upon their qualifications.
• By analogy with the cases of district representatives, once
the party or organization of the party-list nominee has been
proclaimed and the nominee has taken his oath and
assumed office as member of the HoR, the COMELEC’s
jurisdiction over election contests relating to his
qualifications ends and the HRET’s own jurisdiction begins.
(Abayon v. HRET, G.R. No. 189466, Feb. 11, 2010)
14

Question: Which has jurisdiction over a petition to expel a
member of the House (party-list) – the HRET or
COMELEC? How about expulsion from the party-list?
Answer: Section 17, Article VI of the 1987 Constitution
endows the HRET with jurisdiction to resolve questions on the
qualifications of members of Congress. In the case of party-list
representatives, the HRET acquires jurisdiction over a
disqualification case upon proclamation of the winning party-
list group, oath of the nominee, and assumption of office as
member of the House of Representatives.
In this case, the COMELEC proclaimed Ating Koop as a
winning party-list group; petitioner Lico took his oath; and he
assumed office in the House of Representatives.
Thus, it is the HRET, and not the COMELEC, that has
jurisdiction over the disqualification case. [Lico v.
Commission on Elections, (G.R. No. 205505,September 29,
2015)]
COMMISSION
ON
APPOINTMENTS
How are the 12 Senators and 12
Representatives chosen?
They are elected on the basis of proportional
representation from the political parties and party-list
organizations.
Note: The authority of the HoR to change its
representation in the CA to reflect at any time the
changes that may transpire in the political alignments of
its membership. It is understood that such changes in
membership must be permanent and do not include the
temporary alliances or factional divisions not involving
severance of political loyalties or formal disqualification
and permanent shifts of allegiance from one political
party to another (Daza v. Singson GR 86344 December
12, 1989)
6/10/2018
Answer:
COMELEC was wrong in upholding the validity of the expulsion
of petitioner Lico from Ating Koop, despite its own ruling that
the HRET has jurisdiction over the disqualification issue.
These findings already touch upon the qualification requiring a
party-list nominee to be a bona fide member of the party-list
group sought to be represented.
The COMELEC justified its Resolution on the merits of the
expulsion, by relying on the rule that it can decide intra-party
matters as an incident of its constitutionally granted powers and
functions (citing Lokin v. COMELEC).
The Lokin case, however, involved nominees and not
incumbent members of Congress. In the present case, the fact
that petitioner Lico was a member of Congress at the time of
his expulsion from Ating Koop removes the matter from the
jurisdiction of the COMELEC. [Lico v. Commission on
Elections, (G.R. No. 205505,September 29, 2015)]
What is the composition of the CA?
1. Senate President
chairman;
as ex-officio
2. 12 Senators; and
3. 12 Members of the HoR.
What are the rules on voting?
1. The CA shall rule by a majority vote of all
the Members.
2. The Chairman shall only vote in case of
tie.
3. The CA shall act on all appointments
within 30 session days from their
submission to Congress.
15

What is the jurisdiction of the CA?
CA shall confirm the appointments by the
President with respect to the following positions:
HAPCOO
1. Heads of the Executive Departments.
(except if it is the Vice-President who is
appointed to the post)
2. Ambassador. Other Public ministers or
Consuls.
3. Officers of the AFP from the rank of Colonel or
Naval Captain; and
4. Other officers whose appointments are vested in
him by the Constitution (i.e. COMELEC
members)
LEGISLATION
What are the instances when Congress
meets jointly but is voting separately?
1. Choosing the President.
2. Determine President’s disability.
3. Confirming nomination of Vice-President.
4. Declaring the existence of a state of war
in joint session.
5. Proposing Constitutional amendments
6/10/2018
What are the limitations on
confirmation?
1. Congress cannot by law prescribe that the
appointment of a person to an office
created by such law be subject to
confirmation by the CA.
2. Appointments extended by the President
to the above-mentioned positions while
Congress is not in session shall only be
effective until disapproval by the CA or
until the next adjournment of Congress.
What are the Instances when there are
special sessions?
1. To call a special session due to vacancies in the offices
of the President and Vice President at 10 o’clock a.m. on
the third day after the vacancies;
2. To decide on the disability of the President because a
majority of all the members of the cabinet have
“disputed” his assertion that he is able to discharge the
powers and duties of his office;
3. To revoke or extend the Presidential Proclamation of
Martial Law or suspension of the privilege of the writ of
habeas corpus; and
4. Called by the President at any time when Congress is
not in session.
What are the instances when Congress
meets jointly and votes jointly?
1. To revoke or extend proclamation
suspending the privilege of writ of
habeas corpus;
2. To revoke or extend declaration of
martial law.
16

What is the enrolled Bill Theory?
An enrolled bill is one duly introduced and
finally passed by both Houses,
authenticated by the proper officers of
each, and approved by the President.
It is conclusive upon the courts as regards
the tenor of the measure passed by
Congress and approved by the President
(Mabanag v. Lopez Vito, G.R. No. L-1123,
March 5, 1947)
What are the matters mandated by the
Constitution to be entered into the Journal?
1. Yeas and nays on the third and final reading
of a bill;
2. Veto message of the President;
3. Yeas and nays on re-passing a bill vetoed
by the President;
4. Yeas and nays on any question at the
request of 1/5 of the members present.
(Tolentino v. Secretary of Finance, GR No. 115455,
August 25, 1994)
QUESTION: Can the President take active part in
the legislative process? Explain.
SUGGESTED ANSWER:
The President can take active part in the legislative
process to the extent allowed by the Constitution.
He can address Congress at any time to propose the
enactment of certain laws.
He recommends the general appropriations bill.
He can call a special session of Congress at any time.
He can certify to the necessity of the immediate
enactment of a bill to meet a public calamity or
emergency.
He can veto a bill.
6/10/2018
If there is a conflict between journal entry and
enrolled bill, which shall prevail?
A: The Enrolled bill prevails except
only as to matters that the
Constitution requires to be entered in
the journals.
Well settled is the rule that an enrolled
copy of a bill is conclusive not only of its
provisions but also of its due enactment.
(Tolentino v. Secretary of Finance, GR
No. 115455, August 25, 1994)
What bills are required by the Constitution
to originate exclusively from the House
1. Appropriation Bills;
2. Private Bills;
3. Revenue Bills;
4. Bills Increasing public debt
5. Local bills
QUESTION: When does a bill become a law even
without the signature of the President? Explain.
SUGGESTED ANSWER:
Under Section 27(1), Article VI of the Constitution, a
bill becomes a law even without the signature of the
President if:
(1)he vetoed it but his veto was overriden by two-
thirds vote of all the members of both the Senate and
the House of Representatives; and
(2) if the President failed to communicate his veto to
the House from which the bill originated, within thirty
days after the date of receipt of the bill by the
President.
17

What is legislative veto? Is it valid in the
Philippines?
It is a statutory provision requiring the President
or an administrative agency to present the
proposed IRR of a law to Congress which, by
itself or through a committee formed by it, retains
the right to approve or disapprove such
regulations before they take effect.
Legislative veto is not allowed in the Philippines.
(ABAKADA GURO v. Purisima, G.R. No. 166715.
August 14, 2008)
• QUESTION: President Duterte ordered the
closure of Boracay Island for at least six (6) months
to enable the pertinent government agencies to
facilitate the clean-up of the island due to prevalent
violations of environmental laws.
• It turned out, however, that the said order was only
orally made. No written order was actually issued.
• (i) Does the President have the power to order
the closure of all businesses in the entire island
of Boracay without any law passed by
Congress?
• (ii) Can his oral order of closure be deemed
valid and effective without need of publication in
the official gazette? Explain.
• (ii) Can his oral order of closure be deemed valid and
effective without need of publication in the official
gazette?
• ANSWER: YES. There is no need to publish a verbal order
of the President to his subordinates in the Executive
Department.
• The requirement of publication applies only to presidential
decrees and executive orders promulgated by the President
in the exercise of legislative powers.
• Interpretative regulations and those merely internal in nature,
need not be published.
• Neither is publication required of the so-called letter of
instructions issued by administrative superiors concerning
the rules or guidelines to be followed by their subordinates in
the performance of their duties, such as the verbal order
issued by the President in this case.
6/10/2018
EXECUTIVE
DEPARTMENT
• (i) Does the President have the power to order the
closure of all businesses in the entire island of Boracay
without any law passed by Congress?
• ANSWER:
• The President can validly order the temporary
closure of businesses in Boracay pursuant to his
power of control and duty to faithfully execute laws
found in Article VII, Section 17 of the 1987
Constitution.
• In default of, or in addition to, the President's power
of control, and faithful execution of the laws, the
closure order of the President is an exercise of the
residual powers of the Office of the President.
• Q: Can the President choose to award the status of
National Artist to persons not nominated by the NCCA
and CCP?
• A: NO. The former President's constitutional duty to
faithfully execute the laws and observe the rules, as to the
selection of the nominees for conferment of the Order of
National Artists proscribed her from having a free and
uninhibited hand in the conferment of the said award.
• Otherwise, not only will the stringent selection and
meticulous screening process be rendered futile, the
respective mandates of the NCCA and the CCP Board of
Trustees under relevant laws to administer the conferment of
Order of National Artists, draft the rules and regulations to
guide its deliberations, formulate and implement policies and
plans, and undertake any and all necessary measures in that
regard will also become meaningless. [Almario v.
Executive Secretary, 701 SCRA 269 (2013)]
18

Q: Petitioner Pichay assails the constitutionality of E.O.
13. Petitioner asseverates that the President is not
authorized under any existing law to create the
Investigative and Adjudicatory Division, Office of the
Deputy Executive Secretary for Legal Affairs (IAD-
ODESLA) and that by creating a new, additional and
distinct office tasked with quasi-judicial functions, the
President has not only usurped the powers of congress to
create a public office, appropriate funds and delegate
quasi-judicial functions to administrative agencies but has
also encroached upon the powers of the Ombudsman.
Can the President abolish the PAGC and transfer its
powers to a new office thru a mere Executive Order?
INCOMPATIBLE OFFICE
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. [Section 7, paragraph
(2), Article IX-B of the 1987
Constitution]
• Q: Can the Acting Secretary of Justice concurrently
serve as Acting Solicitor General?
• NO. That is a clear violation of the constitutional
prohibition under Section 13, Article VII of the 1987
Constitution.
• The prohibition against dual or multiple offices being
held by one official must be construed as to apply to
all appointments or designations, whether
permanent or temporary, for it is without question
that the avowed objective of Section 13, is to
prevent the concentration of powers in the
Executive Department.
• Funa vs. Agra, G.R. NO. 191644, FEBRUARY 19, 2013.
6/10/2018
• Q: Can the President abolish the PAGC and
transfer its powers to a new office thru a mere
Executive Order?
• A: YES.
• First, the President has continuing authority to
reorganize the Executive Department under E.O. 292.
• Second, the reorganization did not entail the creation of
a new, separate and distinct office.
• The abolition of the PAGC did not require the creation
of a new, additional and distinct office as the duties and
functions that pertained to the defunct anti-graft body
were simply transferred to the ODESLA, which is an
existing office within the Office of the President Proper.
• Pichay v. ODESLA, G.R. NO. 196425. JULY 24, 2012
Holding Two Concurrent Positions
• Elena bautista was DOTC Usec. She was designated
as OIC of MARINA in a temporary capacity. Is this
valid?
• No. The Constitutional ban on dual or multiple
positions refers to the holding of the office, and not to
the nature of the appointment or designation, words
which were not even found in Section 13, Article VII
nor in section 7, Article IX-B.
• To “hold” an office means to “possess or occupy” the
same, or to be “in possession and administration”,
which implies nothing less than the actual discharge
of the functions and duties of the office.
• FUNA vs. ERMITA, G.R. No. 184740, February 11,
2010, 612 SCRA 308.
• Q: State the exceptions to the ban against the
holding of 2 or more positions.
• The only two exceptions against the holding of
multiple offices are: (1) those provided for under
the Constitution, such as Section 3, Article VII,
authorizing the Vice President to become a member
of the Cabinet; and (2) posts occupied by
Executive officials specified in Section 13,
Article VII without additional compensation in ex
officio capacities as provided by law and as
required by the primary functions of the officials’
offices.
• Funa vs. Agra, G.R. NO. 191644, FEBRUARY 19, 2013.
19

Midnight appointment
• Section 15, Article VII:
• "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 prejudice public service or
endanger public safety.“
• Section 4 (1), Article VIII:
• "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. Any vacancy shall be filled within
ninety days from the occurrence thereof ."
May the President appoint a Chief Justice
even during the ban?
• Yes. The ban under Section 15, Article VII of the
Constitution does not cover appointments to the
SC — "(t)wo months immediately before the next
presidential elections and up to the end of his
terms" — the President is prohibited to make
appointments ONLY to lower courts;
• Under Sections 4(1) and 9 of Article VIII, the
President is required to fill vacancies in the courts
within the time frames provided therein unless
prohibited by Section 15 of Article VII.
• The President may validly appoint the next chief
justice to fill-in the vacancy in the SC. (De Castro
v. Judicial and Bar Council, G.R. No. 191002,
Mar. 17, 2010)
ANSWER: YES.
All of the 800 appointments of GMA were midnight
appointments and are void for violation of Section 15, Article
VII of the 1987 Constitution. EO 2 is constitutional.
The President exercises only one kind of appointing
power. There is no need to differentiate the exercise of the
President’s appointing power outside, just before, or during
the appointment ban.
The Constitution allows the President to exercise the power
of appointment during the period not covered by the
appointment ban, and disallows (subject to an exception) the
President from exercising the power of appointment during
the period covered by the appointment ban.
So even if the appointment was accepted after the ban, it
is still void. [Velicaria-Garafil v. Office of the President,
(G.R. No. 203372,16 June 2015)]
6/10/2018
b. GR: Two months immediately before
the next Presidential elections (2nd
Monday of March), and up to the end of
his “term” (June 30), a President (or Acting
President) shall not make appointments.
XPN: Temporary appointments, to
executive positions, when continued
vacancies therein will prejudice public
service (e.g. Postmaster); or endanger
public safety (e.g. Chief of Staff)
PROBLEM:
Prior to the conduct of the May 2010 elections, then
President Gloria Macapagal-Arroyo (President Macapagal-
Arroyo) issued more than 800 appointments to various
positions in several government offices during the ban on
appointments (midnight appointments).
On 30 June 2010, President Benigno S. Aquino III
(President Aquino) took his oath of office as President of
the Republic of the Philippines.
On 30 July 2010, President Aquino issued EO 2 recalling,
withdrawing, and revoking appointments issued by
President MacapagalArroyo which violated the
constitutional ban on midnight appointments.
Is EO 2 correct? Should the appointments made by GMA
be revoked?
2016 BAR QUESTION
While congress was not in session, the President
appointed Antero as Secretary of the Department of
Tourism (DOT), Benito as commissioner of the Bureau
of Immigration (BI) Clodualdo as Chairman of the Civil
Service Commission (CSC), Dexter as chairman of the
commission on Human Rights (CHR), and Emmanuel
as Philippine Ambassador to Cameroon.
The following day all the appointees took their oath
before the President, and commenced to perform the
functions of their respective offices.
(a) Characterize the appointments, whether
permanent or temporary; and whether regular or
interim, with reasons. (2.5%).
20

2016 BAR QUESTION
(b) A civil society group, the Volunteers
Against Misguided Politics (VAMP) files suit,
contesting the legality of the acts of the
appointees and claiming that the appointees
should not have entered into the
performance of the functions of their
respective offices, because their
appointments had not yet been confirmed By
the Commission on Appointments.
Is this claim of VAMP correct? Why or why
not? (2.5%)
COMMANDER-IN-CHIEF
POWERS
ANSWER: YES.
The declaration of martial law is valid. Under Section 18, Article
VII of the 1987 Constitution, the President can place any part of
the Philippines under martial law in cases of actual invasion or
rebellion and the public safety requires it.
The actual invasion of ISIS terrorists and rebellion conducted by
the Maute Brothers are valid grounds to declare martial law.
The Constitution vests exclusively in the President, as
Commander-in-Chief, the emergency powers to declare martial
law or suspend the writ in cases of rebellion or invasion, when
the public safety requires it.
The imposition of martial law or suspension of the writ takes
effect the moment it is declared by the President.
No other act is needed for the perfection of the declaration of
martial law or the suspension of the writ. (Ampatuan v. Sec.
Puno, G.R. No. 190259. June 7, 2011.)
6/10/2018
ANSWER:
(A) The appointments of Antero as Secretary of the Department
of Tourism, Clodualdo as Chairman of the Civil Service
Commission, and Emmanuel as Philippine ambassador to
Cameroon are ad interim and permanent. The appointment of
Benito as Commissioner of Bureau of Immigration and Dexter
as Chairman of the Commission on Human Rights are
permanent and regular. (See Matibag v. Benipayo, G.R. No.
149036, April 2, 2002, 429 Phil. 554; Sarmiento and Arcilla v.
Mison, 156 SCRA 549; Bautista v. Salonga, 172 SCRA 169;
Constitution, Article 7, Section 16.)
(B) The contention of VAMP is not correct.
Ad interim appointments are immediately effective and
continue to be effective upon approval, or until disapproval by
the Commission on Appointments or until the next adjournment
of the Congress. (Constitution, Article 7, Section 16).
QUESTION:
President Duterte placed the entire island of Mindanao
under martial law due to the threats posed by the
splinter group of the Maute Brothers and ISIS terrorists
in the island.
1. Is such declaration of martial law valid even without
the prior consent of Congress?
2. What are the constitutional safeguards on the
exercise of the President’s power to proclaim martial
law?
3. When may the privilege of the writ of habeas corpus
be suspended?
4. If validly declared, what would be the full
consequences of such suspension?
ANSWER:
The constitutional safeguards on the exercise of the power of
the President to proclaim martial law are:
1. There must be actual invasion or rebellion;
2. The duration of the proclamation shall not exceed 60 days;
3. Within 48 hours, the President shall report his action to
Congress. If Congress is not in session, it must convene within
24 hours;
4. Congress may, by majority vote of all its members voting
jointly, revoke the proclamation, and the President cannot set
aside the revocation;
5. By the same vote and in the same manner, upon initiative of
the President, Congress may extend the proclamation if the
invasion or rebellion continues and the public safety requires
the extension;
21

ANSWER:
The Supreme Court may review the factual
sufficiency of the proclamation, and the
Supreme Court must decide the case within 30
days from the time it was filed;
Martial law does not automatically suspend the
privilege of the writ of habeas corpus or the
operation of the Constitution. It does not
supplant the functioning of the civil courts and
of congress.
Military courts have no jurisdiction over civilians
where civil courts are able to function.
Q: If validly declared, what would be the full
consequences of such suspension?
ANSWER: Under Section 18, Article VII of the 1987
Constitution, the suspension of the privilege of the writ
of habeas corpus shall apply only to persons judicially
charged with rebellion or offenses inherent in or
directly connected with invasion.
Any person arrested or detained should be judicially
charged within three days. Otherwise, he should be
released.
Moreover, under Section 13, Article III of the 1987
Constitution, the right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is
suspended.
Q: Can the President impose martial law without
any concurrence of Congress?
A: Yes. The Constitution vests exclusively in the
President, as Commander-in-Chief, the
emergency powers to declare martial law or
suspend the writ in cases of rebellion or invasion,
when the public safety requires it.
The imposition of martial law or suspension of the
writ takes effect the moment it is declared by the
President.
No other act is needed for the perfection of the
declaration of martial law or the suspension of the
writ. (Ampatuan v. Sec. Puno, G.R. No. 190259.
June 7, 2011.)
6/10/2018
Q: When may the privilege of the
writ of habeas corpus be
suspended?
ANSWER:
Under Section 18, Article VII of the
1987 Constitution, the President can
suspend the privilege of the writ of
habeas corpus when there is an
invasion or rebellion and the public
safety requires it.
Q: After the Maguindanao massacre, the
president declared a state of emergency and
called out the armed forces. Is this valid?
A: The calling out of the armed forces to prevent or
suppress lawless violence in such places is a
power that the Constitution directly vests in the
President. She did not need a congressional
authority to exercise the same.
The President's call on the armed forces to
prevent or suppress lawless violence springs from
the power vested in her under Section 18, Article
VII of the Constitution, which provides. (Ampatuan
v. Sec. Puno, G.R. No. 190259. June 7, 2011.)
Q: Who can challenge the constitutionality of
the declaration of martial law?
A: The Constitution explicitly clothes "any citizen"
with the legal standing to challenge the
constitutionality of the declaration of martial law
or suspension of the writ.
The Constitution does not make any distinction
as to who can bring such an action.
As discussed in the deliberations of the
Constitutional Commission, the "citizen" who can
challenge the declaration of martial law or
suspension of the writ need not even be a
taxpayer. (Fortun v. Pres. Macapagal-Arroyo,
March 20, 2012)
22

What are the requisites for the
suspension of the privilege of the
writ of habeas corpus?
1. There must be an invasion or rebellion; and
2. The public safety requires the suspension.
Note: The invasion and rebellion must be actual
and not merely imminent.
(Ampatuan v. Sec. Puno, G.R. No. 190259. June
7, 2011.)
Does the proclamation of a state of national emergency authorize the
President under Section 17, Article XII to temporarily take over or
direct the operation of any privately-owned public utility or business
affected with public interest?
NO. Section 17. Articled XII must be understood as
an aspect of the emergency power clause. The
taking over of private business affected with public
interest is just another face of the emergency powers
generally reposed upon Congress.
Whether or not the President may exercise such
power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the
reasonable terms thereof (Randolf S. David, et al. v.
Gloria Macapagal-Arroyo, et al., G.R. No. 171396,
May 3, 2006).
DISTINGUISH PARDON FROM AMNESTY
• 1. Pardon is a private act and must be pleaded and proved
by the person pardoned; while amnesty is a public act of
which courts take judicial notice;
• 2. Pardon does not require the concurrence of Congress,
while amnesty requires the concurrence of Congress;
• 3. Pardon is granted to individuals, while amnesty is granted
to classes of persons or communities;
• 4. Pardon may be granted for any offense, while amnesty is
granted for political offenses;
• 5. Pardon is granted after final conviction, while amnesty
may be granted at any time; and
• Pardon looks forward and relieves the offender from the
consequences of his offense, while amnesty looks backward
and the person granted it stands before the law as though he
had committed no offense.
6/10/2018
When the President declares a state of national
emergency and calls out the Armed Forces, does
such an act give to the President additional powers?
No. The declaration of a state of emergency is
merely a description of a situation which
authorizes her to call out the Armed Forces to
help the police maintain law and order.
It gives no new power to her, nor to the police.
Certainly it does not authorize warrantless
arrests or control of media. (Randolf S. David,
et al. v. Gloria Macapagal-Arroyo, et al.,
G.R. No. 171396, May 3, 2006).
PARDONING
POWER
• QUESTION:
• Risos-Vidal filed a petition seeking to disqualify President
Estrada from running for and holding any public elective
office on the ground that the pardon granted to him did not
expressly provide for the remission of the penalty of
perpetual absolute disqualification, particularly the restoration
of his (former President Estrada) right to vote and be voted
upon for public office.
• She invokes Articles 36 and 41 of the Revised Penal Code, which
provides:
• ART. 36. Pardon; its effects.– A pardon shall not work the restoration
of the right to hold public office, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon.
• ART. 41. The penalties of reclusion perpetua and reclusion temporal
shall carry with them xxx—xxx perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the
principal penalty, unless the same shall have been expressly remitted
in the pardon.
23

• Q: IS ERAP QUALIFIED?:
• A: YES. Former President Estrada was granted an
absolute pardon that fully restored all his civil and
political rights, which naturally includes the right to seek
public elective office, the focal point of this controversy.
• The wording of the pardon extended to former President
Estrada is complete, unambiguous, and unqualified.
• It is likewise unfettered by Articles 36 and 41 of the Revised
Penal Code.
• The pardoning power of the President cannot be limited
by legislative action.
• Therefore, it can be argued that any act of Congress by way
of statute cannot operate to delimit the pardoning power of
the President. (Risos-Vidal v. COMELEC, G.R. No. 206666,
January 21, 2015; J. De Castro)
• Q: Can the Supreme Court review the correctness
of the action of the President in commuting the
penalty imposed on X? Explain.
• ANSWER: Yes, the Supreme Court can review the
correctness of the action of the President in
commuting the penalty imposed on X. By doing so, the
Supreme Court is not deciding a political question. The
Supreme Court is not reviewing the wisdom of the
commutation of the penalty.
• What it is deciding is whether or not the President has
the power to commute the penalty of X. As stated in
Daza vs. Singson. 180 SCRA 496, it is within the
scope of judicial power to pass upon the validity of the
actions of the other departments of the Government.
DIPLOMATIC
POWERS
6/10/2018
• QUESTION:
• X, a clerk of court of the Regional Trial Court of
Manila, was found guilty of being absent without
official leave for 90 days and considered dismissed
from service by the Supreme Court. He appealed to
the President for executive clemency. Acting on the
appeal, the Executive Secretary, by order of the
President, commuted the penalty to a suspension of
six months.
• a) Can the Supreme Court review the correctness of
the action of the President in commuting the penalty
imposed on X? Explain.
• b) Was the action of the President constitutional
and valid? Explain.
• QUESTION: Was the action of the President
constitutional and valid? Explain.
• ANSWER:
• The commutation by the President of the
penalty imposed by the Supreme Court upon
X is unconstitutional. Section 6. Article VIII of
the Constitution vests the Supreme Court with
the power of administrative supervision over
all courts and their personnel.
• In Garcia vs. De la Pena, 229 SCRA 766, it
was held that no other branch of the
Government may intrude into this exclusive
power of the Supreme Court.
QUESTION: President Duterte publicly
announced that the Philippines is now withdrawing
from the Rome Treaty which created the
International Criminal Court (ICC).
He now contends that the ICC has no jurisdiction
against him because:
(i) The signed text of the said treaty was never
published in the Official Gazette of the
Philippines and hence, has no binding effect in
our country
(ii) He can unilaterally abrogate the treaty without
need of concurrence from the Senate.
Rule on the grounds raised by the President.
24

ANSWER:
There is no legal requirement for treaties to be
published in the Official Gazette for its validity.
Under the Vienna Convention on Treaties, a
treaty is valid and binding from the moment it is
ratified and made effective by the parties as
stipulated therein.
Our civil law provision (Article 2) that requires
publication of statutes apply only to laws and
rules promulgated by our government offices.
Such domestic law does not bind other
countries.
• 2008 BAR EXAM QUESTION:
• The President alone without the
concurrence of the Senate abrogated a
treaty.
• Assume that the other country-party to the
treaty is agreeable to the abrogation
provided it complies with the Philippine
Constitution.
• If a case involving the validity of the treaty
abrogation is brought to the Supreme
Court, how should it be resolved?
• 2015 BAR EXAM QUESTION:
• The Philippines and the Republic of Kroi Sha
established diplomatic relations and immediately
their respective Presidents signed the following:
• (1) Executive Agreement allowing the Republic of
Kroi Sha to establish its embassy and consular
offices within Metro Manila; and
• (2) Executive Agreement allowing the Republic of
Kroi Sha to bring to the Philippines its military
complement, warships, and armaments from time to
time for a period not exceeding one month for the
purpose of training exercises with the Philippine
military forces.
6/10/2018
Q: Can the President, on his own, terminate a treaty?
A: NO. Typically, a treaty provides for its termination by notice
of one of the parties, usually after a prescribed time from the
date of notice. Of course, treaties may also be terminated by
agreement of the parties, or by breach by one of the parties, or
by some other means.
Because the Constitution requires the consent of the
Senate for making a treaty, one can logically argue that its
consent is as well required for terminating it.
Finally, because treaties are, like statutes, the supreme law of
the land, it may well be argued that, again like statutes, they
may be undone only through law–making by the entire
Congress; additionally, since Congress may be required to
implement treaties and may displace them through legislation,
this argument is re-enforced.
• Suggested Answer:
• The Supreme Court should declare the treaty abrogation
invalid.
• While the Constitution is silent on whether a treaty
abrogation shall require the concurrence of the Senate to
make it valid and effective, the treaty-ratifying power of
Senate carries with it the power to concur a treaty abrogated
by the President by way of necessary implication.
• Under the doctrine of incorporation, a treaty duly ratified by
the Senate and recognized as such by the contracting State
shall form an integral part of the law of the land.
• The President alone cannot effect the repeal of a law of
the land formed by a joint action of the executive and
legislative branches, whether the law be a statute or a
treaty. To abrogate a treaty, the President’s action must be
approved by the Senate.
• 2015 BAR EXAM QUESTION:
• Senator Maagap questioned the
constitutionality of the said
Executive Agreements and
demanded that the Executive
Agreements be submitted to the
Senate for ratification pursuant to
the Philippine Constitution.
• Is Senator Maagap correct? Explain.
25
 6/10/2018

• ANSWER: • ANSWER:
• Senator Maagap is wrong.
• Senator Maagap is wrong.
• Executive Agreements need not be submitted to the Senate
for its concurrence, under the provisions of Section 21 of • It should be noted that, under the
Article VII of the Constitution. (China National Machinery &
Equipment Corporation v. Sta. Maria, G.R. NO. 185572, Constitution, the Senate merely provides
February 7, 2012, 665 SCRA 189) its concurrence to, and does not ratify,
• This would be true with respect to both Executive treaties.
Agreements in the problem, including the second one, which
allows the Republic of Kroi Sha to bring to the Philippines its • It is the President who ratifies treaties,
military complements, warships and armaments from time to
time. (Pimentel v. Executive Secretary, G.R.
• Under Section 25 of Article XVIII of the Constitution, only No. 15808, July 16, 2008, 462 SCRA
such agreements with the United States of America would be
required to be the subject of a treaty which would need the
622)
concurrence of the Senate.

• IS THE EDCA CONSTITUTIONAL: • ANSWER:

• EDCA authorizes the U.S. military forces to have access to
and conduct activities within certain "Agreed Locations" in
the country.
• It was not transmitted to the Senate on the executive's
understanding that to do so was no longer necessary.
Accordingly, in June 2014, the Department of Foreign Affairs
(DFA) and the U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary internal
requirements for the agreement to enter into force in the two
countries.
• Petitioners primarily argue that it should have been in the
form of a treaty concurred in by the Senate, not an executive
agreement.
• Is the EDCA Constitutional?
• As the sole organ of our foreign relations and the
constitutionally assigned chief architect of our foreign
policy, the President is vested with the exclusive power
to conduct and manage the country's interface with
other states and governments.
• Being the principal representative of the Philippines, the
Chief Executive speaks and listens for the nation;
initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and
enters into international agreements; promotes trade,
investments, tourism and other economic relations; and
settles international disputes with other states.
• Rene Saguisag, et al., v. Executive Secretary, et al., GR
No. 212426, January 12, 2016.

• ANSWER:
• No court can tell the President to desist from choosing
an executive agreement over a treaty to embody an
international agreement, unless the case falls squarely
within Article VIII, Section 25.
• As can be gleaned from the debates among the
members of the Constitutional Commission, they were
aware that legally binding international agreements were
Presidential
being entered into by countries in forms other than a
treaty.
• At the same time, it is clear that they were also keen to
Succession
preserve the concept of "executive agreements" and the
right of the President to enter into such agreements..
[Rene Saguisag, et al., v. Executive Secretary, et al.,
GR No. 212426, January 12, 2016.]

26

In case of a tie between Presidential
candidates, who shall be declared
winner?
In case of a tie between 2 or more
candidates, one shall be chosen by a
majority of all the members of both
Houses, voting separately. In case this
results in a deadlock, the Senate President
shall be acting President until the deadlock
is broken.
Note: The same is true with Vice-
Presidential candidates.
What are the rules on presidential
succession?
1. VP Succeeds the President
2. Vacancy in office of VP during the term for which he
was elected:
a. President will nominate new VP from any member
of either House of Congress.
b. Nominee shall assume office upon confirmation by
majority vote of all members of both Houses, voting
separately.
Note: Nominee forfeits seat in Congress.
Presidential
Immunity
6/10/2018
What is the term of office of the
President?
Six (6) years
Note: No person who has succeeded as President and has
served as such for more than four years shall be qualified for
election to the same office at any time.
No Vice-President shall serve for more than two successive
terms.
Note: The person who succeeds as President and not just in
an acting capacity could either be: the Vice-President; or one
who was elected President in a special election.
In both cases, if he has served for more than 4 years, he is
ineligible for re-election as President.
ARTICLE VII, 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.
Q: Is the President immune from suit?
A: There is no provision in the 1987 Constitution
clothing the president with immunity from suit.
Under Sec. 15 of the 1973 Constitution – “The
president shall be immuned from suit during his
tenure..” But the 1987 Constitution did not preserve this
provision.
In Soliven vs Judge Makasiar (1988), the SC
said that president Cory Aquino enjoys immunity. In
Estrada v. Desierto (2001), the SC also held that the
intent of the framers of the 1987 Constitution was to
continue the president’s immunity during his tenure. In
the case of Rodriguez vs. GMA (2011), the SC also
affirmed that a sitting president is immuned from suit.
27

JUDICIAL
DEPARTMENT
Q: CAN A DISBARMENT CASE BE FILED
AGAINST A SITTING JUSTICE OF THE SUPREME
COURT?
A: NO. A public officer who under the Constitution is
required to be a Member of the Philippine Bar as a
qualification for the office held by him and who may be
removed from office only by impeachment, cannot be
charged with disbarment during the incumbency of
such public officer.
Further, such public officer, during his incumbency, cannot
be charged criminally before the Sandiganbayan or any
other court with any offense which carries with it the penalty
of removal from office, or any penalty service of which would
amount to removal from office. [IN RE: RAUL GONZALES,
April 15, 1988]
Q: Distinguish quo warranto and
impeachment as remedies against an
impeachable officer who is alleged not to possess
the required constitutional qualifications for
his/her office.
Answer:
While both impeachment and quo warranto may
result in the ouster of the public official, the two
proceedings materially differ. At its most basic,
impeachment proceedings are political in nature,
while an action for quo warranto is judicial or a
proceeding traditionally lodged in the courts.
[Republic v. Sereno, May 11, 2018]
6/10/2018
Q: What is meant by judicial independence?
A: It encompasses the idea that individual judges can freely
exercise their mandate to resolve justiciable disputes, while the
judicial branch, as a whole, should work in the discharge of its
constitutional functions free of restraints and influence from the
other branches, save only for those imposed by the Constitution
itself. Thus, judicial independence can be "broken down into two
distinct concepts: decisional independence and institutional
independence."
Decisional independence "refers to a judge's ability to render
decisions free from political or popular influence based solely on
the individual facts and applicable law."
On the other hand, institutional independence "describes the
separation of the judicial branch from the executive and
legislative branches of government." Simply put, institutional
independence refers to the "collective independence of the
judiciary as a body.“ [In RE: COA Opinion, 678 SCRA 1 (2012)]
Q: CAN A DISBARMENT CASE BE FILED
AGAINST A SITTING JUSTICE OF THE SUPREME
COURT?
A: NO. A Member of the Supreme Court must
first be removed from office via the constitutional
route of impeachment under Sections 2 and 3 of
Article XI of the 1987 Constitution.
Should the tenure of the Supreme Court Justice be
thus terminated by impeachment, he may then be
held to answer either criminally or administratively (by
disbarment proceedings) for any wrong or
misbehaviour that may be proven against him in
appropriate proceedings. [IN RE: RAUL GONZALES,
April 15, 1988]
Q: Distinguish quo warranto and impeachment.
Answer:
Aside from the difference in their origin and nature, quo
warranto and impeachment may proceed independently of
each other as these remedies are distinct as to (1) jurisdiction
(2) grounds, (3) applicable rules pertaining to initiation, filing
and dismissal, and (4) limitations.
The causes of action in the two proceedings are unequivocally
different. In quo warranto, the cause of action lies on the
usurping, intruding, or unlawfully holding or exercising of
a public office, while in impeachment, it is the commission
of an impeachable offense.
The crux of the controversy in a quo warranto proceeding is
the determination of whether or not the officer legally holds the
position to be considered as an impeachable officer in the first
place. [Republic v. Sereno, May 11, 2018]
28

Q: Distinguish quo warranto and impeachment.
Answer:
Simply put, while title to hold a public office is the issue in quo
warranto proceedings, impeachment necessarily presupposes
that the official legally holds the public office and thus, is an
impeachable officer, the only issue being whether or not
he/she committed impeachable offenses to warrant his/her
removal from office.
A respondent in a quo warranto proceeding shall be adjudged
to cease from holding a public office, which he/she is ineligible
to hold. On the other hand, in impeachment, a conviction shall
result to the removal of the respondent from the public office
that he/she is legally holding.
It is not legally possible to impeach or remove a person from
an office that he/she, in the first place, does not and cannot
legally hold or occupy. [Republic v. Sereno, May 11, 2018]
ANSWER:
The law is unconstitutional.
The LEB is under the Office of the President. It is an executive
office. As such, it usurps the exclusive powers of the Supreme
Court to promulgate rules for the admission to the practice of
law.
By imposing the PhiLSAT tests, the LEB effectively added a
requirement before a student can be admitted into law school.
This will mean that those excluded thereby will no longer be
able to enroll in a law school and will consequently be
prevented from taking the bar exams and be admitted to the
practice of law.
The Executive Department may not encroach upon the
constitutional prerogative of the Supreme Court to promulgate
rules for admission to the practice of law in the Philippines.
Q: Does the 5-year service policy for First Level
Judges violate the equal protection clause?
• NO. 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.
• The difference in treatment between lower court judges who
have served at least five years and those who have served
less than five years, is based on substantial distinctions.
(Judge Ferdinand Villanueva vs. the JBC, G.R. No.
211833, 07 April 2015)
6/10/2018
QUESTION:
Congress passed a law, R.A. No. 15005, creating an
administrative Board principally tasked with the supervision
and regulation of legal education (“Legal Education Board”).
The LEB was attached to the Office of the President.
It was empowered, among others, to prescribe minimum
standards for law admission and minimum qualifications of
faculty members, the basic curricula for the course of study
aligned to the requirements for admission to the Bar.
The LEB promulgated a Rule establishing the Philippine Law
School Admission Test as a requirement before law students
are admitted into law schools.
Professor Gorospe assails the constitutionality of the law
arguing; that it encroached on the prerogatives of the Supreme
Court to promulgate rules relative to admission to the practice
of law. Is the law constitutional?
Q: The JBC has adopted a policy that First Level Court
judges must first earn 5 years of service before they are
considered for promotion to the RTC or higher courts. Is
this policy required to be published to be valid?
• YES. The assailed JBC policy does not fall within the
administrative rules and regulations exempted from the
publication requirement.
• The assailed policy involves a qualification standard by which
the JBC shall determine proven competence of an applicant.
• It is not an internal regulation, because if it were, it would
regulate and affect only the members of the JBC and their staff.
• Thus, it is but a natural consequence thereof that potential
applicants be informed of the requirements to the judicial
positions, so that they can comply. (Judge Ferdinand
Villanueva vs. the JBC, G.R. No. 211833, 07 April 2015)
TENURE
AND
DISCIPLINARY
POWERS
29

How long can members of
SC and judges hold office?
Members of SC and judges of the lower
courts can hold office during good
behavior until:
1. The age of 70 years old; or
2. They become incapacitated to
discharge their duties.
Who holds the power of disciplinary
action over judge of lower courts?
Disciplinary action against judges of lower courts:
1. Only the SC en banc has jurisdiction to
discipline or dismiss judges of lower courts.
2. Disciplinary action/dismissal: Majority vote of
SC Justices who took part in the deliberations
and voted therein.
Note: The Constitution provides that the SC is
given exclusive administrative supervision over
all courts and judicial personnel.
Q: Can congress pass a law lowering the
passing rate for bar candidates?
A: No, the admission, suspension, disbarment and
reinstatement of attorney at law in the practice of the
profession and their supervision have been indisputably a
judicial function and responsibility.
The Constitution has not conferred on Congress and the
Supreme Court equal responsibility which the Constitution
recognizes continue to reside in this Court. Congress may
repeal, alter and supplement the rules promulgated by the
Supreme Court.
But the authority and responsibility over the admission,
suspension, disbarment and reinstatement of attorney-at-law
and their supervision remains vested with the Supreme
Court. (IN RE: Cunanan, March 18, 1954)
6/10/2018
Q: A, an associate justice of the Supreme Court reached
the age of seventy on July 1, 1996. There was a case
calendared for deliberation on that day where the vote of
A was crucial. Can A hold over the position and
participate in the deliberation of the case on July 1, 1996?
Explain.
A: No, A cannot hold over his position as Associate Justice of
the Supreme Court and participate in the deliberations of the
case on July 1, 1996. Under Section 11, Article VIII of the
Constitution, Members of the Supreme Court hold office until
they reach the age of seventy years or become incapacitated
to discharge their duties.
Constitutional officers whose terms are fixed by the
Constitution have no right to hold over their positions until their
successors shall have been appointed and qualified unless
otherwise provided in the Constitution
Does the Civil Service Commission
have jurisdiction over an employee of
the Judiciary for acts committed while
said employee was still in the
Executive Branch?
No. Administrative jurisdiction over a court
employee belongs to the Supreme Court,
regardless of whether the offense was
committed before or after employment in the
Judiciary.
Q: Can Congress exempt the GSIS from legal fees
imposed by the SC?
A: NO. Since the payment of legal fees is a vital
component of the rules promulgated by the SC concerning
pleading, practice and procedure, it cannot be validly
annulled, changed or modified by Congress.
As one of the safeguards of the Supreme Court's
institutional independence, the power to promulgate rules
of pleading, practice and procedure is now the Court's
exclusive domain.
That power is no longer shared by the Supreme Court with
Congress, much less with the Executive. [Re: Petition for
Recognition of the Exemption of the Government Service
Insurance System from Payment of Legal Fees, 612 SCRA
193 (2010)]
30

QUESTION:
Congress enacted a law, "AN ACT REQUIRING ALL
CONCERNED GOVERNMENT AGENCIES TO ENSURE
THE EARLY RELEASE OF THE RETIREMENT PAY,
PENSIONS, GRATUITIES AND OTHER BENEFITS OF
RETIRING GOVERNMENT EMPLOYEES“ [RA 10154]
Section 7, Rule III of the IRR to RA 10154 states:
Section 7. Notice of Pendency of Case. — The retiring
employee shall seek Clearance of Pendency/Non-
Pendency of Administrative Case from his/her
employer agency, Civil Service Commission (CSC),
Office of the Ombudsman, or in case of presidential
appointees, from the Office of the President.
Is this provision applicable to retiring employees of the
judiciary?
NATIONAL
PATRIMONY
Q: What are the requisites for such service contracts or
joint explorations with foreign nationals or companies to
be valid?
A:
Such service contracts may be entered into only with respect
to minerals, petroleum and other mineral oils. The grant
thereof is subject to several safeguards, among which are
these requirements:
(1) The service contract shall be crafted in accordance
with a general law that will set standard or uniform terms,
conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of
terms disadvantageous to the country. [Resident Marine
Mammals of the Protected Seascape Tañon Strait v. Reyes,
756 SCRA 513 (2015)]
6/10/2018
ANSWER: NO
Section 6, Article VIII of the 1987 Constitution exclusively vests
in the SC administrative supervision over all courts and
court personnel. As such, it oversees the court personnel's
compliance with all laws and takes the proper administrative
action against them for any violation thereof. As an adjunct
thereto, it keeps in its custody records pertaining to the
administrative cases of retiring court personnel.
To apply such provision to the judiciary would disregard the
SC’s constitutionally-enshrined power of administrative
supervision over its personnel. Besides, retiring court
personnel are already required to secure a prior clearance of the
pendency/non-pendency of administrative case/s from the Court
which makes the CSC clearance a superfluous and non-
expeditious requirement. [Request for Guidance/Clarification
on Section 7, Rule 111 of Republic Act. No. 10154, 706
SCRA 502 (2013)]
Q: Does the Constitution prohibit service contracts or
joint explorations of our natural resources with foreign
nationals or companies?
A: NO.
The last paragraph of Section 2, Article XII of the 1987
Constitution, reads as follows:
“The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the
development and use of local scientific and technical resources.”
“The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty days
from its execution.”
Q: What are the requisites for such service contracts or
joint explorations with foreign nationals or companies to
be valid?
A:
(2) The President shall be the signatory for the
government because, supposedly before an agreement is
presented to the President for signature, it will have been
vetted several times over at different levels to ensure that it
conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the
President shall report it to Congress to give that branch of
government an opportunity to look over the agreement and
interpose timely objections, if any. [Resident Marine
Mammals of the Protected Seascape Tañon Strait v. Reyes,
756 SCRA 513 (2015)]
31

CONSTITUTIONAL
BODIES
Q: Can the President, thru an Executive Order, include the
CSC Chairperson as Ex-Officio Board Member of several
GOCC’s?
A: NO. When the CSC Chairman sits as a member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF,
he may exercise powers and functions, which are not anymore
derived from his position as CSC Chairman.
He will likewise be under the control of the Chief Executive
when he sits in the board of GOCC’s.
Also, he will receive per diem, a form of additional
compensation that is disallowed by the concept of an ex officio
position by virtue of its clear contravention of the proscription
set by Section 2, Article IX-A of the 1987 Constitution.
This situation goes against the principle behind an ex officio
position, and must, therefore, be held unconstitutional. [Funa
v. Duque III, 742 SCRA 166 (2014)].
SUMMARY OF RULES:
3. Members of the Commission, e.g., COA, COMELEC or
CSC, who were appointed for a full term of seven years and
who served the entire period, are barred from reappointment to
any position in the Commission. Corollarily, the first appointees
in the Commission under the Constitution are also covered by
the prohibition against reappointment.
4. A commissioner who resigns after serving for less than
seven years is eligible for an appointment to the position of
Chairman for the unexpired portion of the term of the departing
chairman. Such appointment is not covered by the ban on
reappointment, provided that the aggregate period of the length
of service as commissioner and the unexpired period of the
term of the predecessor will not exceed seven (7) years and
provided further that the vacancy in the position of Chairman
resulted from death, resignation, disability or removal by
impeachment. [Funa v. Villar, 670 SCRA 579 (2012)]
6/10/2018
Q: What is meant by fiscal autonomy of the judiciary?
A:
Under the guarantees of the Judiciary's fiscal autonomy and
its independence, the Chief Justice and the Court En
Banc determine and decide the who, what, where, when
and how of the privileges and benefits they extend to
justices, judges, court officials and court personnel
within the parameters of the Court's granted power; they
determine the terms, conditions and restrictions of the grant
as grantor.
Any kind of interference from COA on these retirement privileges
and benefits are exercised and availed of by members of the
judiciary, not only violates the fiscal autonomy and independence
of the Judiciary, but also encroaches upon the constitutional duty
and privilege of the Chief Justice and the Supreme Court En Banc
to manage the Judiciary's own affairs.[In RE: COA Opinion, 678
SCRA 1 (2012)]
SUMMARY OF RULES for the 3 Constitutional
Commissions:
1. The appointment of members of any of the three
constitutional commissions, after the expiration of the uneven
terms of office of the first set of commissioners, shall always be
for a fixed term of seven (7) years; an appointment for a lesser
period is void and unconstitutional.
The appointing authority cannot validly shorten the full term of
seven (7) years in case of the expiration of the term as this will
result in the distortion of the rotational system prescribed by the
Constitution.
2. Appointments to vacancies resulting from certain causes
(death, resignation, disability or impeachment) shall only be for
the unexpired portion of the term of the predecessor, but such
appointments cannot be less than the unexpired portion as this
will likewise disrupt the staggering of terms laid down under
Sec. 1 (2), Art. IX (D). [Funa v. Villar, 670 SCRA 579 (2012)]
SUMMARY OF RULES:
The Court clarifies that "reappointment" found in Sec.
1 (2), Art. IX (D) means a movement to one and the
same office (Commissioner to Commissioner or
Chairman to Chairman).
On the other hand, an appointment involving a
movement to a different position or office
(Commissioner to Chairman) would constitute a new
appointment and, hence, not, in the strict legal sense,
a reappointment barred under the Constitution.
5. Any member of the Commission cannot be
appointed or designated in a temporary or acting
capacity. [Funa v. Villar, 670 SCRA 579 (2012)]
32

Q: Can a member of a constitutional body be re-
appointed?
A: YES.
The word "reappointment" means a second appointment to
one and the same office; and Sec. 1 (2), Art. IX (D) of the
1987 Constitution and similar provisions do not prohibit the
promotional appointment of a commissioner to chairman,
provided the new appointee's tenure in both capacities does
not exceed seven (7) years in all.
A promotional appointment from the position of
Commissioner to that of Chairman is constitutionally
permissible and not barred by Sec. 1 (2), Art. IX (D) of the
Constitution.
A promotional appointment is outside the purview of the
constitutional reappointment ban in Sec 1 (2), Art. IX (D)
of the Constitution. [Funa v. Villar, 670 SCRA 579 (2012)]
The Ombudsman filed charges of “Usurpation of
authority” against Former President Noynoy Aquino. If a
certiorari petition is filed with the SC to review this act of
the Ombudsman, will such a petition prosper?
• A: The Ombudsman has the discretion to determine whether
a criminal case, given its attendant facts and circumstances,
should be filed or not.
• The Ombudsman may dismiss the complaint should the
Ombudsman find the complaint insufficient in form or
substance, or the Ombudsman may proceed with the
investigation if, in the Ombudsman’s view, the complaint is
in due form and substance.
• Hence, the filing or non-filing of the information is primarily
lodged within the “full discretion” of the Ombudsman.
• [Soriano v. Ombudsman, AUGUST 19, 2015 (Bersamin)]
May the President discipline a deputy ombudsman?
A: NO. Subjecting the Deputy Ombudsman to discipline and
removal by the President, whose own alter egos and officials in
the Executive Department are subject to the Ombudsman's
disciplinary authority, cannot but seriously place at risk the
independence of the Office of the Ombudsman itself.
The Office of the Ombudsman, by express constitutional
mandate, includes its key officials, all of them tasked to support
the Ombudsman in carrying out her mandate.
What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her complete
trust in her subordinate officials who are not as independent as
she is, if only because they are subject to pressures and
controls external to her Office. [Emilio Gonzales III vs. Office
of the President, G.R. No. 196232. January 28, 2014].
6/10/2018
The Ombudsman filed charges of “Usurpation of
authority” against Former President Noynoy Aquino. If a
certiorari petition is filed with the SC to review this act of
the Ombudsman, will such a petition prosper?
• A: NO. The discretion of the Office of the Ombudsman in the
determination of probable cause to charge a respondent public
official or employee cannot be interfered with in the absence of a
clear showing of grave abuse of discretion amounting to lack or
excess of jurisdiction.
• Jurisprudence explains that the Office of the Ombudsman is
vested with the sole power to investigate and prosecute, motu
proprio or on complaint of any person, any act or omission of any
public officer or employee, office, or agency when such act or
omission appears to be illegal, unjust, improper, or inefficient.
• The Ombudsman’s power to investigate and to prosecute is
plenary and unqualified. [Soriano v. Ombudsman, AUGUST 19,
2015 (Bersamin)]
The general Rule is that the decision of the Ombudsman
on who and what to charge is beyond judicial review.
What are the exceptions?
• A: In the following instances, the courts may interfere with the
Ombudsman’s investigatory powers:
• To afford protection to the constitutional rights of the accused;
• When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;
• When there is a prejudicial question which is sub judice;
• When the acts of the officer are without or in excess of authority;
• Where the prosecution is under an invalid law, ordinance or
regulation;
• When double jeopardy is clearly apparent;
• Where the court has no jurisdiction over the offense;
• Where it is a case of persecution rather than prosecution;
• [Soriano v. Ombudsman, AUGUST 19, 2015 (Bersamin)]
May the President discipline the Chairman and other
officers of the Commission on Human Rights?
• No. As the term of office of the Chairman (and Members) of
the Commission on Human Rights, is seven (7) years,
without re-appointment, --- their tenure cannot be made
dependent on the pleasure of the President.
• It is extremely difficult to conceptualize how an office
conceived and created by the Constitution to be
independent — as the Commission on Human Rights —
and vested with the delicate and vital functions of
investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as
remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office
of its Chairman and Members is made dependent on the
pleasure of the President. [Bautista v. Salonga, G.R. No.
86439. April 13, 1989].
33
 6/10/2018

Q. Is the Commission on Human Rights (CHR) considered
as a Constitutional Body enjoying fiscal autonomy?
Explain.
ANSWER: NO. From the 1987 Constitution and the
Administrative Code, it is abundantly clear that the CHR is not
among the class of Constitutional Commissions.
Nor is there any legal basis to support the contention that the
CHR enjoys fiscal autonomy. 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. Only the Judiciary, the Civil Service Commission, the
Commission on Audit, the Commission on Elections, and the
Office of the Ombudsman, which enjoy fiscal autonomy.
[CHREA vs. CHR, G.R. No. 155336. November 25, 2004]
• Q: What is the Doctrine of Administrative
Condonation? Is this still applicable?
• A:
• The rule that public official cannot be removed for
administrative misconduct committed during a prior
term, since his re-election to office operates as a
condonation of the officer’s previous misconduct to
the extent of cutting off the right to remove him
therefore. Note that this has no application to
pending criminal cases. (Aguinaldo v. Santos, G.R.
No. 94115, Aug. 21, 1992)
• This Doctrine was already abandoned by the
Supreme Court in the case of Mayor Junjun Binay
[Carpio-Morales, vs. CA, November 10, 2015]

• Q: Why was the Doctrine of Administrative Condonation

abandoned?
• A: To begin with, the concept of public office is a public
trust and the corollary requirement of accountability to
the people at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that an
elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact
that he was elected to a second term of office, or even
another elective post.
• Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory
basis in our jurisdiction to support the notion that an official
elected for a different term is fully absolved of any
administrative liability arising from an offense done during a
prior term.[Carpio-Morales, vs. CA, November 10, 2015]

34