Political Law

Important Reminders

By Prof. Ramel C. Muria, LL.M.

National Territory (Bar 2009, 2016)

Archipelagic Doctrine

1. The claim that the waters around, between and connecting the islands of the
archipelago, irrespective of their breadth and dimensions are parts of internal waters.

2. The straight baseline method of delineating the territorial sea which consists of
drawing straight lines connecting the appropriate points on the coast without
departing to any appreciable extent from the general direction of the coast (Bernas,
Primer, 2001Ed., p6).

Nature of the UNCLOS

It is a multilateral treaty regulating, among others, sea-use rights over maritime zone (i.e.,
the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles
from the baselines], exclusive economic zone [200 nautical miles from the baselines], and
continental shelves that UNCLOS III delimits (Id., 489).

The KIG and the Scarborough Shoal as Regimes of Islands

Congress’ decision to classify the KIG and the Scarborough Shoal as “Regime(s) of
Islands” under the Republic of the Philippines consistent with Article 121 of UNCLOS III
manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation
under UNCLOS III. Under Article 121 of UNCLOS III, any “naturally formed area of land,
surrounded by water, which above water at high tide,” such as portions of the KIG, qualifies
under the category of “regime of islands,” whose islands generate their own baselines.

Maritime zones (Bar 2013)

Territorial sea. 12 nautical miles from the baseline. The state exercises absolute
sovereignty.

Contiguous zone. 24 nautical miles from the baseline. The state has power to enforce
customs, fiscal, sanitary, and immigration laws, such as those that prohibit smuggling or illegal
immigration.

Exclusive economic zone (EEZ). 200 nautical miles from the baseline. The coastal state
has sovereign rights over natural resources and other economic uses.

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 Continental shelf. 200 nautical miles from the baseline. The state has the right to harvest
mineral and non-living resources of the seabed and subsoil of its continental shelf, to the
exclusion of other states.

Extended continental shelf. Up to 350 nautical miles from the baseline.

Philippines’ rights over its EEZ

With respect to non-living resources, the UNCLOS provides that the “coastal State”—
which in this case is necessarily the Philippines—“exercises over the continental shelf sovereign
rights for the purpose of exploring it and exploiting its natural resources.” The Convention goes
on to make clear that “the rights referred to are exclusive in the sense that if the coastal State
does not explore the continental shelf or exploit its natural resources, no one may undertake these
activities without the express consent of the coastal State.”

These provisions are unequivocal and require no further interpretation. Within its
continental shelf, only the Philippines, or another State acting with its permission, may exploit
the resources of the sea-bed (Republic of the Philippines v. People’s Republic of China, PH-CN
20160712).

UNCLOS vis-à-vis historic rights of states

The Convention is clear in according sovereign rights to the living and non-living
resources of the exclusive economic zone to the coastal State alone. The notion of sovereign
rights over living and non-living resources is generally incompatible with another State having
historic rights to the same resources, in particular if such historic rights are considered exclusive,
as China’s claim to historic rights appears to be (Republic of the Philippines v. People’s Republic
of China, PH-CN-20160712) .

Right of innocent passage

The right of innocent passage to the territorial waters of States is customary

international law. In the absence of municipal legislation, international law norms, now codified
in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic
waters, subject to the treaty’s limitations and conditions for their exercise (Magallona v. Ermita,
655 SCRA 476, 501).

State Immunity from Suit (Bar 2018)

The traditional rule of State immunity which exempts a State from being sued in the
courts of another State without the former’s consent or waiver has evolved into a restrictive
doctrine which distinguishes sovereign and governmental acts (jure imperii) from private,
commercial and proprietary acts (gest gestionis).

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 Under the restrictive rule of State immunity, State immunity extends only to acts jure
imperii. The restrictive application of State immunity is proper only when the proceedings arise
out of commercial transactions of foreign sovereign, its commercial activities or economic
affairs (Arigo vs. Swift, G.R. No. 206510, September 16, 2014, 735 SCRA 102, 133).

Applications of restrictive immunity from suit

The Supreme Court has considered the following transactions by a foreign state with
private parties as acts jure gestionis:

(1) The hiring of a cook in the recreation center, consisting of three restaurants, a
cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio
City, to cater to American servicemen and the general public (United States of America v.
Rodrigo, 182 SCRA 644 [1990]);

(2) The bidding for the operation of barber shops in Clark Air Base in Angeles City
(United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and
other facilities open to the general public is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment contract with the cook in the discharge
of its proprietary function, the United States government impliedly divested itself of its sovereign
immunity from suit (Holy See v. Rosario, G.R. No. 101949, December 1, 1994).

The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines to promote "common security interests" between the US and
the Philippines in the region. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in
the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation
of equipment, materials and supplies.

The invocation of US federal tort laws and even common law is thus improper
considering that it is the VFA which governs disputes involving US military ships and crew
navigating Philippine waters in pursuance of the objectives of the agreement. As it is, the waiver
of State immunity under the VFA pertains only to criminal jurisdiction and not to special civil
actions such as the present petition for issuance of a writ of Kalikasan (Arigo vs. Swift, G.R. No.
206510, September 16, 2014, 735 SCRA 102, 141-142).

Test of suability of foreign states before Philippine courts

The mere entering into a contract by a foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the
foreign state is engaged in the activity in the regular course of business.

If the foreign state is not engaged regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an

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incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or
profit (Holy See v. Rosario, G.R. No. 101949, December 1, 1994).

Immunity from suit of an entity of foreign states

Where suit is filed not against the government itself or its officials but against one of its
entities, it must be ascertained whether or not the State, as the principal that may ultimately be
held liable, has given its consent to be sued. This ascertainment will depend in the first instance
on whether the government agency impleaded is incorporated or unincorporated.

An incorporated agency has a charter of its own that invests it with a separate juridical
personality. By contrast, the unincorporated agency is so called because it has no separate
juridical personality but is merged in the general machinery of the government.

If the agency is incorporated, the test of its suability is found in its charter. The simple
rule is that it is suable if its charter says so, and this is true regardless of the functions it is
performing (German Agency for Technical Cooperation, GTZ, v. Court of Appeals, G.R. No.
152318, April 16, 2009).

Doctrine of postliminium

At the end of the occupation, when the occupant is ousted from the territory, the political
laws which had been suspended during the occupation shall automatically become effective
again (Co Kim Cham v. Valdez Tan Key, 75 Phil. 130).

Self-executing provisions under Articles II and XII

1. Right to health under sec. 15, Art II (see Oposa v. Factoran, 224 SCRA 792; Imbong v.
Ochoa, G.R. No. 204819, April 8, 2014).
2. Right to balanced and healthful ecology under sec. 16. Art. II (Id.)
3. Policy of full disclosure under sec. 28 (see Province of North Cotabato v. GRP Peace
Panel, infra).
4. Preference of Filipinos in the grant of rights, privileges, and concessions covering
national economy and patrimony under sec. 10 Art. XII (Manila Prince Hotel v. GSIS,
supra).

Characteristics of Republican State

1. The existence of the Bill of Rights.

2. The observance of the rule of majority.
3. The observance of the principle that “ours is a government of laws and not of men”.
4. The observance of the principle that the State cannot be sued without its consent.
5. The observance of the principle that Congress cannot pass irrepealable laws.
6. The observance of the principle of separation of powers and of checks and balances.

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 7. The presence of election through popular will or the right of suffrage.
8. The observance of the law of public officers known as the administrative law (Malcom
and Laurel, Philippine Constitutional Law).

Customary international law (Bar 2013)

Modes of Internalization of International Law

1. The transformation method requires that an international law be transformed into a

domestic law through constitutional mechanism such as local legislation.
2. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law (Pharmaceutical and
Health Care Association of the Philippines v. Duque III, 535 SCRA 265, 289).

Declared Customary International Law

1. The Hague Convention and the Geneva Conventions are customary international law (see
Kuroda v. Jalandoni, 83 Phil. 171).
2. The Universal Declaration of Human Rights is based on customary international law (see
Mejoff v. Director of Prisons, 90 Phil. 70).
3. Pacta sunt servanda (see Tanada v. Angara, supra).
4. Exchange of notes as traditional form of international agreement (see Bayan Muna v.
Romulo, 641 SCRA 244, 257)
5. Ban on enforced disappearance is customary international law. (see Razon, Jr. v. Tagitis,
606 SCRA 598).
6. The right to return to one’s country is customary international law (see Marcos v.
Manglapus, 177 SCRA 668).
7. The right not to be arbitrarily deprived of his property is generally accepted principle of
international law (see Republic v. Sandiganbayan, 135 SCRA 706).
8. There is a generally accepted principle of international law to presume foundlings as
having been born and a national of the country in which it is found (Poe-Llamanzares v.
Commission on Elections, G.R. No. 221697, March 8, 2016).
9. Foreign armed forces are immune from local jurisdiction (see Suzette Nicolas v, Romulo,
et al, GR 175888, February 11, 2009).
Note: ICC Statute is not customary international law (Bayan Muna v. Romulo, 641 SCRA
244).

Sovereignty as auto-limitation (Bar 2006)

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty.
By their voluntary act, nations may surrender some aspects of their state power in exchange for

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greater benefits granted by or derived from a convention or pact (Tanada v. Angara, 272 SCRA
18, 66; Reagan vs. Commission of Internal Revenue, 30 SCRA 968)

Diplomatic immunity (Bar 2013, 2017)

Diplomatic immunity of international organizations

The term "international organization" is generally used to describe an organization set up

by agreement between two or more states. Under contemporary international law, such
organizations are endowed with some degree of international legal personality such that they are
capable of exercising specific rights, duties and powers. They are organized mainly as a means
for conducting general international business in which the member states have an interest
(International Catholic Migration Commission v. Calleja, G.R. No. 85750, September 28, 1990,
190 SCRA 130, 140-141).

Diplomatic immunity is a political question

It is a recognized principle of international law and under our system of separation of

powers that diplomatic immunity is essentially a political question and courts should refuse to
look beyond a determination by the executive branch, and where the plea for diplomatic
immunity is recognized and affirmed by the executive branch of the government, it is then the
duty of the courts to accept the claim of immunity upon the appropriate suggestion by the
principal law officer of the government (World Health Organization v. Aquino, G.R. No. L-
35131, November 29, 1972, 48 SCRA 242, 248).

Right to life (Bar 2018)

Right of conscientious objector

Health care providers cannot be compelled to render health care procedures if it will
violate their religious beliefs except in cases of emergency. The Supreme Court struck down the
provision in the RH law which punishes health care providers who will refuse to perform
reproductive health services based on their religious conviction as violative of freedom of
religion (Imbong v. Ochoa).

Right to balanced and healthful ecology (Bar 2015, 2016)

Intergenerational responsibility

Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in behalf
of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right,

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as hereinafter expounded, considers the "rhythm and harmony of nature," (Oposa v. Factoran,
Jr., 224 SCRA 792, 1993).

Continuing mandamus

Continuing mandamus maybe resorted to compel government agencies to conduct

environmental clean up (see MMDA v. Concerned Residents of Manila Bay, 574 SCRA 611,
2008).

Separation of powers (Bar 2008, 2009)

Principle of comity as aspect of separation of powers

A lesser known but no less important aspect of the principle of separation of powers –
deemed written into the rules by established practice and rendered imperative by the
departments’ inter-dependence and need for cooperation among themselves – is the principle of
comity or the practice of voluntarily observing inter-departmental courtesy in undertaking their
assigned constitutional duties for the harmonious working of government (In Re: Production of
Court Records and Documents, February 14, 2012).

Judicial Supremacy

When the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which that instrument secures and guarantees to
them (Angara v. Electoral Commission, 63 Phil. 139, 158).

Internal proceedings of the Congress

The Supreme Court cannot look into the internal proceedings of the House of
Representatives except if the rights of private individuals are involved (Arroyo v. De Venecia,
277 CRA 268).

Unified Multipurpose ID System

Executive order mandating the adoption of Unified Multi-purpose ID system is not

usurpation of legislative power. In issuing EO 420, the President did not make, alter or repeal
any law but merely implemented and executed existing laws. EO 420 reduces costs, as well as
insures efficiency, reliability, compatibility and user-friendliness in the implementation of
current ID systems of government entities under existing laws. Thus, EO 420 is simply an
executive issuance and not an act of legislation (KMU v. NEDA Director General, 487 SCRA
623, 2006).

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Post-enactment authority given to members of the Congress (Bar 2008, 2009, 2017)

2 Kinds of Pork Barrel System

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-
sum, discretionary fund wherein legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the fund’s utilization through
various post-enactment measures and/or practices (see Belgica, et. al., v. Ochoa, G.R. No.
208566, November 19, 2013).

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-
sum, discretionary fund which allows the President to determine the manner of its utilization (see
Belgica, et. al., v. Ochoa, G.R. No. 208566, November 19, 2013).

Congressional Pork Barrel System violates the principle of separation of powers.

According to the Supreme Court, these post-enactment measures which govern the areas of
project identification, fund release and fund realignment are not related to functions of
congressional oversight and, hence, allow legislators to intervene and/or assume duties that
properly belong to the sphere of budget execution (see Belgica, et. al., v. Ochoa, G.R. No.
208566, November 19, 2013).

Permissible post-enactment congressional measures

(1) Scrutiny based primarily on Congress’ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before
and be heard by either of its Houses on any matter pertaining to their departments and its
power of confirmation; and

(2) Investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation (ABAKADA GURO v. Purisima, G.R.
No. 166715, August 14, 2008, 405 SCRA 614).

Checks and balances

 The President may veto any bill enacted by Congress whenever in his judgment the
proposed law will not promote the general welfare (sec. 27[1], Art. VI).
 The Congress may override the veto of the President in which case the vetoed bill
becomes a law (sec.27 [1], Art. VI).
 A law, treaty or international agreement maybe declared as unconstitutional by the
Supreme Court (sec.1, Art. VIII).
 The President may declare martial law or suspend the privilege of the writ of habeas
corpus on ground of invasion or rebellion when public safety requires it but such
declaration or suspension, may be repudiated by the majority votes of the members of
Congress, voting jointly (sec. 18, Art. VII).

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  The declaration of martial law or suspension of the privilege of the writ may be reviewed
by the Supreme Court in an appropriate proceeding filed by any citizen (sec. 18, par.3,
Art VII).
 Nominees of the President to head the various executive departments, ambassadors, other
public ministers and consuls, shall be subject to the confirmation of the majority of the
members of the Commission on Appointments (sec. 16, par.1, Art. VII).
 The House of Representatives may initiate impeachment proceedings against the
President and he may be removed if found guilty by two-thirds (2/3) of all the members
of the Senate (Sec.3 [2], [3] and [6], Art. XI).

Non-delegation of legislative power (Bar 2016)

To determine whether or not there is undue delegation of legislative power, the inquiry
must be directed to the scope and definiteness of the measure enacted. The legislature does not
abdicate its function when it describes what job must be done, who is to do it, and what is the
scope his authority (Edu v. Ericta, 35 SCRA 481).

Exceptions to the principle of non-delegation of legislative power

 Delegation to local governments

 Delegation to the President under the Constitution of the emergency power (sec. 23, 2,
Art. VI) and the tariff powers (sec. 28, 2, Art. VI).

Tests for valid delegation of the rule-making power

The delegating law must:

(a) be complete in itself as it must set forth therein the policy to be carried out or
implemented by the delegate; and
(b) fix a standard or the limits of which are sufficiently determinate or determinable to
which the delegate must conform in the performance of his functions (see Pelaez v.
Auditor General, 15 SCRA 569).

Under the first test, the law must be complete in all its terms and conditions when it
leaves the legislature such that when it reaches the delegate the only thing he will have to do is
enforce it.

Under the sufficient standard test, there must be adequate guidelines or stations in the law
to map out the boundaries of the delegate's authority and prevent the delegation from running
riot. Both tests are intended to prevent a total transference of legislative authority to the delegate,
who is not allowed to step into the shoes of the legislature and exercise a power essentially
legislative. (see Vivas v. Monetary Board of the Bangko Sentral ng Pilipinas, G.R. No. 191424,
August 7, 2013, 703 SCRA 290)

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 The power to create cities and provinces cannot be delegated

The power to create a province, or a city with a population of 250,000 or more, requires
also the power to create a legislative district. Even the creation of a city with a population of less
than 250,000 involves the power to create a legislative district because once the city’s population
reaches 250,000, the city automatically becomes entitled to one representative under Section 5
(3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution.
Thus, the power to create a province or city inherently involves the power to create a legislative
district (Sema v. COMELEC, G.R. No. 177597, July 16, 2008).

Residence requirement for candidates

Cohabitation with common law wife in the latter’s rented house can prove a candidate’s
residence in the place where he is intending to run. The existence of a house and lot apparently
owned by petitioner’s common-law wife, with whom he has been living for over two decades,
makes plausible petitioner’s allegation of bodily presence and intent to reside in the area (see
Sabili v. COMELEC, G.R. No. 193261, 24 April 2012, 670 SCRA 664; Jalosjos v. COMELEC,
G.R. No. 193314, June 25, 2013).

Legislative apportionment (Bar 2015)

Legislative apportionment is defined by Black's Law Dictionary as the determination of

the number of representatives which a State, county or other subdivision may send to a
legislative body. It is the allocation of seats in a legislative body in proportion to the
population; the drawing of voting district lines so as to equalize population and voting power
among the districts.

Reapportionment, on the other hand, is the realignment or change in legislative districts

brought about by changes in population and mandated by the constitutional requirement of
equality of representation (Bagabuyo vs. Commission on Elections, 573 SCRA 290).

Party-list system (Bar 2006, 2009, 2015, 2018)

Four parameters

1. Twenty percent of the total number of the membership of the House of Representatives is
the maximum number of seats available to party-list organizations such that there is
automatically one party-list seat for every four existing district representative.

2. Garnering two percent of the total votes cast in the party-list elections guarantees a party-
list organization one seat. The guaranteed seats shall be distributed in a first round of seat
allocation to parties receiving at least two percent of the total party-list votes.

3. The additional seats, that is, the remaining seats after allocation of the guaranteed seats,
shall be distributed to the party-list organizations including those that received less than
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 two percent of the total votes. The continued operation of the two percent threshold as it
applies to the allocation of the additional seats is now unconstitutional because this
threshold mathematically and physically prevents the filing up of the party-list seats.

4. The three-seat cap is constitutional. The three-seat cap is intended by the Legislature to
prevent any party from dominating the party-list system (BANAT v. COMELEC, 592
SCRA 295, 313).

Formula for additional Party-list seats

First, the percentage is multiplied by the remaining available seats, which is the
difference between the maximum seats reserved under the Party-List System and the guaranteed
seats of the two-percenters. The whole integer of the product of the percentage and of the
remaining available seats corresponds to a party’s share in the remaining available seats.

Second, we assign one party-list seat to each of the parties next in rank until all available
seats are completely distributed. We distribute all of the remaining seats in the second round of
seat allocation. Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled (see BANAT V. COMELEC, supra).

Admissible votes for the Party-list elections

The total votes cast for the party-list system include those votes made for party-list
groups indicated in the ballot regardless of the pendency of their motions for reconsideration or
petitions before any tribunal in relation to their cancellation or disqualification cases. However,
votes made for those party-list groups whose disqualification attained finality prior to the
elections should be excluded if the electorate is notified of the finality of their disqualification by
the Commission on Elections. The divisor shall also not include invalid votes (ARARO, Inc. v.
Commission on Elections, G.R. No. 192803, December 10, 2013, 712 SCRA 54, 89).

Criteria for participation

1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or
organizations.

2. National parties or organizations and regional parties or organizations do not need to

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

3. Political parties can participate in party-list elections provided they register under the
party-list system and do not field candidates in legislative district elections. A political
party, whether major or not, that fields candidate in legislative district elections can
participate in party-list elections only through its sectoral wing that can separately

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 register under the party-list system. The sectoral wing is by itself an independent sectoral
party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be “marginalized and underrepresented” or

lacking in “well-defined political constituencies.” It is enough that their principal
advocacy pertains to the special interest and concerns of their sector. The sectors that are
“marginalized and underrepresented” include labor, peasant, fisher folk, urban poor,
indigenous cultural communities, handicapped, veterans, and overseas workers.

The sectors that lack “well-defined political constituencies” include professionals,

the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the

“marginalized and underrepresented” must belong to the “marginalized and
underrepresented” sector they represent.

6. National, regional and sectoral parties or organizations shall not be disqualified if some
of their nominees are disqualified, provided that they have at least one nominee who
remains qualified (see Atong Paglaum, Inc. v. Commission on Elections, G.R. No.
204486, April 2, 2013, 694 SCRA 486)

Privilege of speech and debate

Protected Utterances

To come under the privilege, it is not essential that the Congress be in session where the
utterance is made. What is essential is that the utterance must constitute “legislative action,” that
is, it must be part of the deliberative and communicative process by which legislators
participate in committee or congressional proceedings in the consideration of proposed
legislation or of other matters which the Constitution has place within the jurisdiction of the
Congress (Bernas, Primer, 2011: 233).

Privilege from arrest

Parliamentary privilege of freedom from arrest is limited to (a) offenses punishable by

not more than six years while (b) the Congress is in session. The privilege is not applicable to
members of the Congress who has been convicted already (see Jalosjos and Trillanes cases).

Prohibition for members of Congress (Bar 2014)

1. 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 (sec. 13, Art. VI).

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 2. No member of the Congress shall be appointed to any office which may have been
created or the emoluments thereof increased during the term for which he was elected
(sec. 10, Art. VI).

3. No member of Congress may appear as counsel before any court of justice or before
the Electoral Tribunals, or quasi-judicial and other administrative bodies (sec. 14, Art.
VI).

4. No member of Congress shall directly or indirectly be interested financially in any

contract with, or in any franchise or special privilege granted by the government or
any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporations, or its subsidiary, during his term of office (sec. 14, art.
VI).

5. No member of Congress shall intervene in any matter before any office of the
government for his pecuniary benefit or where he may be called upon to act on
account of his office (sec. 14, Art. VI).

Non-legislative power of Congress

1. By vote of 2/3rd of both House, in joint session assembled, voting separately,

Congress shall have the sole power to declare the existence of war (sec. 23[3], Art.
VI).

2. The Senate’s power to concur treaties or international agreements entered into by the
President requiring at least 2/3 of all the members of the Senate (sec. 21, Art. VI).

3. To act as canvassing body for the Presidential and Vice-Presidential elections and to
proclaim the persons duly elected (sec. 4, pars. 5 and 6, Art. VII).

4. The power to concur to the amnesty granted by the President (sec. 19, Art. VII).

5. The House of Representatives has the power to initiate the impeachment process
against any of the impeachable officers enumerated in the Constitution (sec. 3[1], Art.
XI).

6. The Senate’s power to try and decide all impeachment cases (sec. 3[6], Art. XI).

Disciplinary actions for members of Congress (Bar 2015)

Power to determine what constitutes ground for disciplinary action. The House is the
judge of what constitutes disorderly behaviour, not only because the Constitution has conferred
jurisdiction upon it, but also because the matter depends mainly on factual circumstances of
which the House knows best but which can not be depicted in black and white for presentation
to, and adjudication by the Courts (Osmena v. Pendatun, G.R. No. L-17144, October 28, 1960).

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Journal

Congress is required to keep a Journal. A journal is the official record of the proceedings
of the House concerned. It is the official repository of the business and activities undertaken by
the House or the Senate. Each House shall keep a journal of its proceedings (see sec. 16[6], Art.
VII).

Value of the Journal. The Journal is conclusive upon the courts (United States v. Pons, 34
Phil. 729).

Matters which are mandated to be entered in the journal

1. The yeas and nays on any question at the request of at least one-fifth of the members
present (sec. 16[4], Art. VI).

2. The yeas and nays of the last reading of a bill (sec. 26[2], Art. VI).

3. Objections of the President when he vetoes a bill (sec. 27[1], Art. VI).

4. The yeas and nays and the names of the members of each House when it overrides the
veto of the President constituting two-thirds votes of each House voting separately
(sec. 27[1], Art. VI).

5. The vote of each of the members of the House, who voted to affirm or revoke the
impeachment of the President shall be recorded (sec. 3[3], Art. XI).

Enrolled Bill (Bar 2017)

Enrolled bill doctrine. The signing of a bill by the Speaker of the House and the President
of the Senate and the certification by the secretaries of both Houses of Congress that such bill
was passed are conclusive of its due enactment ( see Arroyo v. Devenecia, 277 SCRA 268).

Value of enrolled bill. The enrolled bill is the official copy of approved legislation and
bears the certification of the presiding officer of the legislative body. The respect due to a
coequal department requires the courts to accept the certification of the presiding officer of the
legislative body as conclusive assurance that the bill so certified is authentic (see Bernas, Primer,
239).

Electoral Tribunal (Bar 2006, 2017)

The Electoral Tribunal of each House is the sole judge of all contest relating to the
election, returns and qualifications of their respective members (sec. 17, Art. VI).

Although the composition of the Tribunal is predominantly legislative, the function of

this body is purely judicial, to be discharged, on the basis solely of legal considerations without

14
regard to political, personal and other irrelevant considerations (Lerias v. House of
Representatives Electoral Tribunal, 202 SCRA 808, 818).

Once a winning candidate has been proclaimed, taken his oath, and assumed office as a
Member of the House of Representatives, the COMELEC’s jurisdiction over election contests
relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins
(Vinzons-Chato v. Commission on Elections, G.R. No. 172131, April 2, 2007, 520 SCRA 166).

COMELEC retains jurisdiction until the winning candidate assumed office. The term of
office of a Member of the House of Representatives begins only “at noon on the 30 th day of June
next following their election.” Thus, until such time, the COMELEC retained jurisdiction (see
Reyes v. Commission on Elections, 708 SCRA 197).

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 House of Representatives, the COMELEC’s jurisdiction over election contests
relating to his qualifications ends and the HRET’s own jurisdiction begins (see Abayon v. House
of Representatives Electoral Tribunal, 612 SCRA 375).

HRET has no jurisdiction on question of citizenship of member(s) of the House of

Representatives. The power of the HRET, no matter how complete and exclusive, does not carry
with it the authority to delve into the legality of the judgment of naturalization of the father of a
member of the House of Representatives in the pursuit of disqualifying the latter. To rule
otherwise would operate as a collateral attack on the citizenship of the father which is not
permissible. In our jurisdiction, an attack on a person’s citizenship may only be done through a
direct action for its nullity (see Villanod v. House of Representatives Electoral Tribunal, 655
SCRA 17).

The Senate Electoral Tribunal cannot legally function as such, absent its entire
membership of Senators and that no amendment of its Rules can confer on the three Justices-
Members alone the power of valid adjudication of a senatorial election contest (Abbas v. Senate
Electoral Tribunal, 166 SCRA 651, 1988).

Disloyalty to party is not a valid cause for termination of membership in the HRET. As
judges, the members of the tribunal must be non-partisan. They must discharge their functions
with complete detachment, impartiality, and independence even independence from the political
party to which they belong. Hence, "disloyalty to party" and "breach of party discipline," are not
valid grounds for the expulsion of a member of the tribunal (Bondoc v. Pineda, 201 SCRA 792).

15
Legislative investigations (Bar 2009, 2014)

The Senate or the House of Representatives or any of its committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights
of persons appearing in or affected by such inquiries shall be respected (sec. 21, Art. VI).

Limitations. Section 21 has made explicit the limitations on the power of legislative
investigation: (1) it must be in aid of legislation; (2) it must be in accordance with its duly
published rules of procedure; and (3) the rights of persons appearing in or affected by such
inquiries shall be respected.

Even a Department Head, who is an alter ego of the President, may be summoned.
Anyone, except the President and Justices of the Supreme Court, may be summoned (see Bernas,
Constitution of the Republic of the Philippines, 2012: 771).

The publication of the rules of procedure gives the notice that is required for due process
since investigations can affect the rights of non-members of Congress. Certainly, there is no
debate that the Senate as an institution is ‘continuing,’ as it is not dissolved as an entity with each
national election or change in the composition of its members. However, in the conduct of its
day-to-day business, the Senate of each Congress acts separately and independently of the Senate
of the Congress before it (Neri v. Senate, G.R. 180643, March 25, 2008, 549 SCRA 77; 564
SCRA 152).

Publication of rules of procedure governing investigation. What constitute publication is

set forth in Article 2 of the Civil Code, which provides that “[l]aws shall take effect after 15 days
following the completion of their publication either in the Official Gazette, or in a newspaper of
general circulation in the Philippines’ (Garcillano v. House of Representatives Committee on
Public Information, Public Order and Safety, and National Defense and Security, Information
and Communications Technology, and Suffrage and Electoral Reforms, 575 170, 190-191).

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet
form available at the Senate, is not sufficient under the Tanada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of general circulation. The Rules of
Procedure even provide that the rules ‘shall take effect seven (7) days after publication in two (3)
newspapers of general circulation,” precluding any other form of publication (Id., 195, citing
Justice Carpio).

Power to punish contempt. The exercise by the Congress or by any of its committees of
the power to punish contempt is based on the principle of self-preservation. Such power is sui
generis, as it attaches not to the discharge of legislative functions per se, but to the sovereign
character of the legislature as one of the three independent and coordinate branches of
government (Standard Charter Bank (Philippine Branch) v. Senate Committee on Banks,
Financial Institutions and Currencies, 541 SCRA 456, 474).

16
 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 (Standard
Charter v. Senate Committee on Banks, G.R. No. 167173, December 27, 2007, 541 SCRA 456).

A witness placed under detention for contempt could be imprisoned indefinitely by the
Senate, it being a continuing body, provided that the punishment did not become so long as to
violate due process. As for the House of Representatives, the detention could last not only during
the session when the offense was committed but until the final adjournment of the body (Cruz,
2014: 301).

Chief Executive may prevent appearance of members of cabinet in legislative inquiry

under Section 22 of the Constitution (see Senate v. Ermita, 488 SCRA 1)

Prohibition to attend is not valid if the inquiry is in aid of legislation. Congress is not
bound in such instances to respect the refusal of the department head to appear in such inquiry,
unless a valid claim of privilege is subsequently made, either by the President herself or by the
Executive Secretary (see Senate v. Ermita, 488 SCRA 1).

Only the President may claim executive privilege but 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," which means that he personally
consulted with her. The privilege being an extraordinary power, it must be wielded only by the
highest official in the executive (see Senate v. Ermita, 488 SCRA 1).

The President may prevent members of the armed forces from testifying before
legislative investigations. The President has constitutional authority to prevent member of the
armed forces from testifying before a legislative inquiry by virtue of his power as commander-
in-chief, and that as a consequence a military officer who defies such injunction is liable under
military justice (Gudani v. Senga, 496 SCRA 671, 701).

Emergency powers

Conditions for the grant of emergency powers

1. The existence of war or other national emergency.

2. The authority to exercise emergency power must be in virtue of a law enacted by the
Congress.
3. The exercise of power must be in pursuance to declare a national policy.
4. The exercise of emergency power must be for a limited period and subject to such
restrictions as may be imposed by the Congress.

17
Limitations to the law making function (Bar 2017)

Procedural limitations

1. No bill passed by either House shall become a law unless it has passed three readings on
separate days and printed copies thereof in its final form have been distributed to its
members three days before its final passage (sec. 26[2], Art. VI).
2. Upon the last reading of a bill, no amendment thereto shall be allowed (sec. 26(2), Art.
VI).
3. All appropriation, revenue or tariff bills, bills authorizing increase in public debt, bills of
local application, and private bills shall originate exclusively in the House of
Representative (sec. 24, Art. VI).

Presidential certification of bills (Bar 2017)

The presidential certification dispensed with the requirement not only of printing but also
of reading the bill on separate days. There phrase “except when the President certifies to the
necessity of its immediate enactment, etc.” in Art. VI, se. 26(2) qualifies two stated conditions
before a bill can become a law: (i) the bill has passed three readings on separate days and (ii) it
has been printed in its final form and distributed three days before it is finally approved
(Tolentino v. Secretary of Finance, 235 SCRA 630, 664).

Factual basis of presidential certification is not open for review. The factual basis of
presidential certification of bills, which involves doing away with procedural requirements
designed to insure that bills are duly considered by members of Congress, certainly should elicit
a different standard of review (Tolentino v. Secretary of Finance, 235 SCRA 630, 666).

Substantive limitations (Bar 2018)

1. Congress cannot pass irrepealable laws.

2. Congress cannot enact ex post facto or bill of attainder (sec. 22, Art. III).
3. No law shall be passed increasing the appellate jurisdiction of the Supreme Court without
its advice and concurrence (sec. 30, Art. VI).
4. Congress may not increase the appropriations recommended by the President for the
operation of the government specified in the budget (sec. 25[1], Art. VI).
5. Every bill passed by Congress shall embrace only one subject which shall be expressed in
the title thereof (sec. 26[1], Art. VI).
6. Congress cannot enact a law granting a title of royalty or nobility (sec. 31, Art. VI).
7. No public money or property shall be appropriated, applied, paid or employed, directly or
indirectly, for the use, benefit, or support any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, or other religious
teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary as

18
 such, is assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium (sec. 29 [2], Art. VI).

Doctrine of augmentation (Bar 2017)

Transfer of funds or appropriations is impermissible or illegal. However, the President,

the Senate President, the Speaker of the House, the Chief Justice, the Constitutional Commission
may, by law, be authorized to transfer funds within their respective departments and offices
provided: (a) the transfer is for the purpose of augmenting an item in the general appropriation
laws; and (b) the funds so transferred must come from their savings (sec. 25[5], Art. VI).

Requisites:

1. There is a law authorizing the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and the heads of the
Constitutional Commissions to transfer funds within their respective offices;
2. The funds to be transferred are savings generated from the appropriations for their
respective offices; and
3. The purpose of the transfer is to augment an item in the general appropriations law for
their respective offices (see Maria Carolina P. Araullo, et al. vs. Benigno Simeon C.
Aquino III, President of the Republic of the Philippines, et al., G.R. No. 209287, July 1,
2014, 728 SCRA 1, 131-132).

Cross-border transfer of funds, whether as an augmentation or aid to other agencies, is

unconstitutional. Regardless of the variant characterizations of the cross-border transfers of
funds, the plain text of Section 25(5), disallowing cross-border transfers was disobeyed. Cross-
border transfers, whether as augmentation, or as aid, were prohibited under Section 25(5) (see
Maria Carolina P. Araullo, et al. vs. Benigno Simeon C. Aquino III, President of the Republic of
the Philippines, et al., G.R. No. 209287, July 1, 2014, 728 SCRA 1, 164).

Doctrine of automatic re-appropriation

When Congress fails to enact the general appropriation bill for the ensuing fiscal year by
the end of any fiscal year, the General Appropriation Law for the preceding fiscal year shall be
deemed re-enacted and shall remain in force and in effect until the general appropriation bill is
passed by Congress (sec. 25[7], Art. VI).

Limitations to the power of the purse (Bar 2017)

1. Congress may not increase the appropriation recommended by the President for the
operation of the government (sec. 25[1], Art.VI).

19
 2. A special appropriation bill shall specify the purpose for which it is intended and shall
supported by funds actually available as certified by the National Treasurer, or to be
raised by a corresponding revenue proposal (sec. 25[4], Art. VI).

3. No law shall be passed authorizing any transfer of appropriation. However, the President,
the Senate President, the Speaker of the House, the Chief Justice, the Constitutional
Commission may, by law, be authorized to transfer funds within their respective
departments and offices provided: (a) the transfer is for the purpose of augmenting an
item in the general appropriation laws; and (b) the funds so transferred must come form
their savings (sec. 25[5], Art. VI).

4. No provision or enactment shall be embraced in the general appropriation bill unless it

relates specifically to some particular appropriation therein (sec. 25[2], Art. VI).

5. No public money or property shall be appropriated, applied, paid or employed, directly or

indirectly, for the use, benefit, or support any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, or other religious
teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary as
such, is assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium (sec. 29 [2], Art. VI).

Inappropriate provisions in an appropriation bill may be vetoed by the President

as they are to be treated as items for purposes of the veto. Explicit is the requirement
that a provision in the Appropriations Bill should relate specifically to some “particular
appropriation” therein. According to the Supreme Court, if the challenged “provisions”
do not relate to any particular or distinctive appropriation, they should be considered
as items for the purpose of the President’s veto power (Gonzales v. Macaraig, 391 SCRA
452, 467).

Automatic appropriation

Automatic appropriation for debt service under Presidential Decrees 81, 177, and 1967,
is not unconstitutional (see Guingona, Jr. v. Carague, 196 SCRA 221).

Power of impoundment (Bar 2014)

Presidential impoundment is not allowed under the Constitution. Impoundment refers to

a refusal by the President, for whatever reason, to spend funds made available by Congress. It is
the failure to spend or obligate budget authority of any type (Santiago, Constitutional Law 1,
2015: 367). In refusing or deferring the implementation of an appropriation item, the President
in effect exercises a veto power that is not expressly granted by the Constitution (see Santiago,
id.).

20
 EXECUTIVE DEPARTMENT

Immunity from suit (Bar 2018)

Settled is the doctrine that the President, during his tenure of office or actual incumbency,
may not be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the Head of
State, if he can be dragged into court while serving as such (David v. PGMA, infra).

Executive Privilege

Nature of executive privilege. Executive privilege is the power of the President to

withhold certain types of information from the courts, the Congress, and ultimately the public
(Bernas, Constitution of the Republic of the Philippines, 2012:835).

Confidential information covered by executive privilege:

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

Diplomatic negotiations privilege

Diplomatic negotiations are recognized as privileged in this jurisdiction but such

privilege is only presumptive (Akbayan Citizens Action Party [“AKBAYAN”) v. Aquino, 558
SCRA 468, 518).

Deliberative process privilege

Deliberative process covers documents reflecting advisory opinions, recommendations

and deliberations comprising part of a process by which governmental decisions and policies are
formulated. Notably, the privileged status of such documents rests, not on the need to protect
national security but, on the “obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page news,” the
objective of the privilege being to enhance the quality of agency decisions (Akbayan Citizens
Action Party [“AKBAYAN”) v. Aquino, 558 SCRA 468, 520-521).

21
Presidential Electoral Tribunal (Bar 2006)

PET is not a separate and distinct entity from the Supreme Court, albeit it has functions
peculiar only to the Tribunal. It is obvious that the PET was constituted in implementation of
Section 4, Article VII of the Constitution, and it faithfully complies – not unlawfully defies – the
constitutional directive. (Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, June 7,
2011).

Prohibitions on the President, VP, Cabinet secretaries

1. They shall not hold any other office or employment during the tenure, unless otherwise
provided in the Constitution.

2. They shall strictly avoid conflict of interest in the conduct of their office (sec. 13, Art.
VII).

3. They shall not, during their tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries (sec. 13, Art. VII).

Power of Appointment (Bar 2017)

Four (4) groups of officers whom the President shall appoint under the Constitution:

First, the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel, or naval captain, and other officers
whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise
provided by law; and

Third, those whom the President may be authorized by law to appoint; Fourth, officers
lower in rank whose appointments the Congress may by law vest in the President alone
(Sarmiento III v. Mison, 156 SCRA 549, 553-554).

Other officers whose appointment are subject to confirmation by the Commission on

Appointments

1. The regular members of the Judicial and Bar Council

2. The Chairman and the Commissioners of the Civil Service Commission
3. The Chairman and the Commissioners of the Commission on Elections
4. The Chairman and the Commissioners of the Commission on Audit
5. Members of the Regional Consultative Commission

22
Limitations on the power to appoint (Bar 2014, 2015)

1. The President may not appoint his spouse and relatives by consanguinity and affinity
within the fourth civil degree during his term as members of the Constitutional
Commissions, Office of the Ombudsman, or as secretaries, undersecretaries, chairmen, or
heads of bureaus or offices, including government owned and controlled corporations and
their subsidiaries (sec. 13, Art. VII).

2. The President or acting President cannot exercise the power of appointment two months
before the next presidential elections and up to the end of his term, except temporary
appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety (sec. 15, Art. VII).

3. Appointment in the Judiciary shall be made upon recommendation of the Judicial and Bar
Council (sec.8, Art. VII).

4. Appointments extended by the Acting President shall remain effective, unless revoked by
the elected President within ninety days from his assumption (sec. 14, Art. VII).

Prohibition on midnight appointment does not apply to the judiciary

The framers did not need to extend the prohibition to appointments in the Judiciary,
because their establishment of the JBC and their subjecting the nomination and screening for
judicial positions to the unhurried and deliberative prior process of the JBC ensured that there
would no longer be midnight appointments to the Judiciary (De Castro v. Judicial and Bar
Council [JBC], 615 SCRA 666, 742).

Ineligibility of elective official to hold any other position. The view that an elective
official may be appointed to another position if allowed by law or by the primary functions of his
office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution.

While the second paragraph authorizes holding of multiple offices by an appointive

official when allowed by law or by the primary functions of his position, the first paragraph
appears to be more stringent by not providing any exception to the rule against appointment or
designation of an elective official to other government posts, except as are particularly
recognized in the Constitution itself, e.g., the President as head of the economic and planning
agency; the Vice-President, who may be appointed Member of the Cabinet; and, a member of
Congress who may be designated ex officio member of the Judicial and Bar Council (Flores v.
Drilon, 223 SCRA 568, 574-575).

23
Commander-in-Chief and Martial Law Powers (Bar 2006, 2009, 2015, 2018)

The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law (sec. 18, Art. VII).

When may the President exercise the calling out power. In the exercise of calling out
power, the only criterion is that “whenever it becomes necessary,” the President may call the
armed forces to prevent or suppress lawless violence, invasion or rebellion (Sanlakas v.
Executive Secretary, 421 SCRA 656, 66).

Scope of the calling out power. Under the calling-out power, the President may summon
the armed forces to aid him in suppressing lawless violence, invasion, and rebellion. This
involves ordinary police action. But every act that goes beyond the President’s calling-out power
is considered illegal or ultra vires (David v. PGMA, G.R. No. 171396, May 3, 2006).

Constitutional checks to prevent possible abuses in the exercise to declare martial law

1. The Congress, voting separately, by a vote of at least a majority of all the members, in
regular or special session, may revoke such proclamation or suspension, as the case
maybe (sec. 18, Art. VII).

2. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof. The Supreme Court must promulgate its
decision within thirty days from the date of filing of the petition (sec. 18, Art. VII).

Appropriate proceeding for review of declaration

In an appropriate proceeding" does not refer to a petition for certiorari filed under Section
1 or 5 of Article VIII. It could not have been the intention of the framers of the Constitution that
the phrase "in an appropriate proceeding" would refer to a Petition for Certiorari pursuant to
Section 1 or Section 5 of Article VIII.

The standard of review in a petition for certiorari is whether the respondent has
committed any grave abuse of discretion amounting to lack or excess of jurisdiction in the
performance of his or her functions. Thus, it is not the proper tool to review the sufficiency of the
factual basis of the proclamation or suspension.

It must be emphasized that under Section 18, Article VII, the Court is tasked to review
the sufficiency of the factual basis of the President's exercise of emergency powers. Put
differently, if this Court applies the standard of review used in a petition for certiorari, the same

24
would emasculate its constitutional task under Section 18, Article VII (Lagman v. Medialdea,
G.R. No. 231658, July 4, 2017).

Scope of the power of review

The Court's judicial review of the Congress' extension of such proclamation or

suspension is limited only to a determination of the sufficiency of the factual basis thereof
(Lagman v. Senate President Aquilino Pimentel III, G.R. No. 235935, February 6, 2018).

Sufficiency of factual basis test

The phrase "sufficiency of factual basis" in Section 18, Article VII of the Constitution
should be understood as the only test for judicial review of the President's power to declare
martial law and suspend the privilege of the writ of habeas corpus under Section 18, Article VII
of the Constitution.

The Court does not need to satisfy itself that the President's decision is correct, rather it
only needs to determine whether the President's decision had sufficient factual bases. Section 18,
Article VII limits the scope of judicial review by the introduction of the "sufficiency of the
factual basis" test. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017).

Judicial parameters

The parameters for determining the sufficiency of factual basis are as follows: 1) actual
rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3)
there is probable cause for the President to believe that there is actual rebellion or invasion."
(Lagman v. Medialdea, G.R. No. 231658, December 5, 2017).

Territorial extent of the declaration

Section 18, Article VII of the Constitution states that "[i]n case of invasion or rebellion,
when the public safety requires it, [the President] may x x x suspend the privilege of writ of
habeas corpus or place the Philippines or any part thereof under martial law." Clearly, the
Constitution grants to the President the discretion to determine the territorial coverage of martial
law and the suspension of the privilege of the writ of habeas corpus.

He may put the entire Philippines or only a part thereof under martial law. This is both an
acknowledgement and a recognition that it is the Executive Department, particularly the
President as Commander-in-Chief, who is the repository of vital, classified, and live information
necessary for and relevant in calibrating the territorial application of martial law and the
suspension of the privilege of the writ of habeas corpus (see Lagman v. Medialdea, July 4, 2017).

25
 Only the President can exercise emergency powers.

It is only the President, as Executive, who is authorized to exercise emergency powers as

provided under Section 23, Article VI, of the Constitution, as well as what became known as the
calling-out powers under Section 7, Article VII thereof (Kulayan v. Tan. G.R. No. 187298, July
3, 2012, 675 SCRA 482).

Pardoning power (Bar 2008, 2015, 2017)

Doctrine of non-diminution of the power of pardon. Under the present Constitution, "a
pardon, being a presidential prerogative, should not be circumscribed by legislative action."
Thus, it is unmistakably the long-standing position of this Court that the exercise of the
pardoning power is discretionary in the President and may not be interfered with by Congress or
the Court, except only when it exceeds the limits provided for by the Constitution (Risos-Vidal v.
Estrada, G.R. No. 206666, January 21, 2015).

Residual power

1. The power to prohibit the return to the Philippines of a former dictator as a measure
justified by national security and peace and order (Marcos v. Manglapus, supra).

2. The authority to declare a state of rebellion, though not expressly provided for under the
Constitution (Sanlakas v. Executive Secretary, 421 SCRA 656).

3. The authority of the President to conduct peace negotiations with rebel groups (Province
of North Cotabato v. GRP Peace Panel, 568 SCRA 402).

Judicial Independence

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."

“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" (Re: COA Opinion on the
Computation of the Appraised Value of the Properties Purchased by the Retired Chief/Associate
Justices of the Supreme Court, A.M. No. 11-7-10-SC, July 31, 2012).

JBC (Bar 2013)

Composition of the JBC. The creation of the JBC, the Framers arrived at a unique system
by adding to the four (4) regular members, three (3) representatives from the major branches of

26
government - the Chief Justice as ex-officio Chairman (representing the Judicial Department),
the Secretary of Justice (representing the Executive Department), and a representative of the
Congress (representing the Legislative Department). The total is seven (7), not eight (8) (see
Chavez v. Judicial and Bar Council, G.R. No. 202242, April 16, 2013, 696 SCRA 496).

Fiscal autonomy (Bar 2014)

No report-no release policy of the DBM violates the Constitution. “Automatic release” of
approved annual appropriations to commissions vested with fiscal autonomy should be construed
to mean that no condition to fund releases to them maybe imposed (see Civil Service
Commission v. Department of Budget and Management, 464 SCRA 115).

Accountability of public office (Bar 2009, 2012, 2013)

Impeachable officers

1. President
2. Vice-President
3. Members of the Supreme Court
4. Members of the Constitutional Commissions
5. Ombudsman

Grounds for impeachment

1. Culpable violation of the Constitution

2. Treason
3. Bribery
4. Graft and corruption
5. Other high crimes
6. Betrayal of public trust

The term to “initiate” refers to the filing of the impeachment complaint coupled with
Congress’ taking initial action of said complaint. The initiation takes place by the act of filing
and referral or endorsement of the impeachment complaint to the House Committee on Justice
or, by filing by at least one-third of the members of the House of Representatives with the
Secretary General of the House, the meaning of Section 3(5) of Article XI becomes clear.

Once an impeachment complaint has been initiated, another impeachment complaint may
not be filed against the same official within a one year period (see Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., 415 SCRA 45,
169-170).

27
Regalian doctrine (Bar 2006, 2009, 2016, 2017)

Regalian doctrine. All lands of the public domain, waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and other natural resources are owned by the State (sec. 2, Art. XII).

Limitations impose on the jura regalia of the state under Section 2, Article XII

1. Only agricultural lands of the public domain may be alienated.

2. The exploration, development, and utilization of all natural resources shall be under
the supervision of the State either by directly undertaking such exploration,
development, and utilization or through co-exploration, joint venture, or production-
sharing agreements with qualified persons or corporations.
3. All agreements with the qualified private sector maybe for only a period not
exceeding twenty-five years, renewable for another twenty-five years.
4. The twenty-five year limit is not applicable to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, for
which beneficial use may be the measure and the limit of grant.
5. The use and enjoyment of the marine wealth of the archipelagic waters, territorial sea,
and exclusive economic zone shall be reserved for Filipino citizens.
6. Utilization of natural resources in rivers, lakes, bays, and lagoons may be allowed on
a small scale to Filipino citizens or cooperatives—with priority for subsistence
fishermen and fish workers (see Bernas, Primer, 461).

Classification of the land of the public domain

Lands of the public domain are classified into agricultural, forest or timber, mineral
lands, and national parks. Agricultural lands of the public domain may be further classified
according to the uses to which they may be devoted (sec. 3, Art. XII).

Rules on the disposition of the lands of public domain

1. Private corporations or associations may not acquire alienable lands of the public
domain.
2. Qualified individuals may acquire a maximum of 12 hectares of alienable lands of
public domain by purchase, homestead or grant.
3. Private corporations may hold alienable lands of the public domain by lease up to a
maximum of 1,000 hectares and for a period of twenty-five years renewable for
another twenty-five years.
4. Qualified individuals may lease land of the public domains up to a maximum of 500
hectares (sec. 3, Art. XII).

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Prohibition on the transfer of private lands to aliens

Save in cases of hereditary succession, no private lands shall be transferred or conveyed

except to individuals, corporations, or associations qualified to acquire or hold lands of the
public domain (sec. 7, Art. XII).

An alien husband cannot object to the sale by his Filipino wife of a parcel of land
acquired during the marriage. An alien husband has no capacity or personality to question the
sale of the parcel of land by his wife, even if the same was acquired during their marriage, even
on the claim that he is merely exercising the prerogative of a husband in respect of conjugal
property, for such a theory would permit indirect controversion of the constitutional prohibition
on ownership by aliens of private land in the Philippines (see Cheezman v. Intermediate
Appellate Court, 193 SCRA 93).

Proscription on the grant of franchise for public utility to aliens

No franchise, certificate, or any other form of authorization for the operation of a public
utility shall be granted except to citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines at least sixty per centum of whose capital is owned
by such citizens, nor shall franchise, certificate or authority be exclusive in character or for a
longer period than fifty years (sec. 11, Art. XII).

Public utility

A public utility is a utility corporation which renders service to the general public for
compensation. Its essential feature is that its service is not confined to privileged individuals but
is open to an indefinite public. The public or private character of a utility does not depend on the
number of persons who avail of its services but on whether or not it is open to serve all members
of the public who may require it (see Iloilo Ice and Cold Storage Co. v. Public Utility Board, 44
Phil. 551; Bernas, Primer, 482).

The term “capital” in Section 11, Article XII of the 1987 Constitution

The Court adopted the foregoing definition of the term "capital" in Section 11, Article
XII of the 1987 Constitution in furtherance of "the intent and letter of the Constitution that the
'State shall develop a self-reliant and independent national economy effectively controlled by
Filipinos' [because a] broad definition unjustifiably disregards who owns the all-important voting
stock, which necessarily equates to control of the public utility."

The Court, recognizing that the provision is an express recognition of the sensitive and
vital position of public utilities both in the national economy and for national security, also
pronounced that the evident purpose of the citizenship requirement is to prevent aliens from
assuming control of public utilities, which may be inimical to the national interest.

29
 Further, the Court noted that the foregoing interpretation is consistent with the intent of
the framers of the Constitution to place in the hands of Filipino citizens the control and
management of public utilities; and, as revealed in the deliberations of the Constitutional
Commission, "capital" refers to the voting stock or controlling interest of a corporation (Jose Roy
III v. Herbosa, G.R. No. 207246, November 22, 2016).

Effectively controlled by Filipinos

The Constitution expressly declares as State policy the development of an economy

"effectively controlled" by Filipinos. Consistent with such State policy, the Constitution
explicitly reserves the ownership and operation of public utilities to Philippine nationals, who are
defined in the Foreign Investments Act of 1991 as Filipino citizens, or corporations or
associations at least 60 percent of whose capital with voting rights belongs to Filipinos.

The FIA’s implementing rules explain that "[f]or stocks to be deemed owned and held by
Philippine citizens or Philippine nationals, mere legal title is not enough to meet the required
Filipino equity. Full beneficial ownership of the stocks, coupled with appropriate voting rights is
essential." In effect, the FIA clarifies, reiterates and confirms the interpretation that the term
"capital" in Section 11, Article XII of the 1987 Constitution refers to shares with voting rights,
as well as with full beneficial ownership.

This is precisely because the right to vote in the election of directors, coupled with full
beneficial ownership of stocks, translates to effective control of a corporation (Heirs of Wilson P.
Gamboa v. Finance Secretary Margarito Tevez, G.R. No. 176579, October 9, 2012).

Take-over of public utility (Bar 2009)

In cases national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operations of any privately owned public utility or business affected by public interest (sec. 17,
Art. XII).

Amendment and revision of the Constitution

Modes of amendment of the Constitution

1. Through Constituent Assembly, that is the Congress upon a vote of three-fourths of

all its members.
2. Through Constitutional Convention.
3. By the people through initiative upon a petition of at least twelve per centum of the
total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein (secs. 1 and
2, Art. XVII).

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 Modes of revision of the Constitution

1. Through Constituent Assembly, that is the Congress upon a vote of three-fourths of

all its members.
2. Through Constitutional Convention (sec. 1, Art. XVII).

Calling a Constitutional Convention. The Congress may, by a vote of two-thirds of all its
members, call a Constitutional Convention, or by a majority vote of all of its members, submit to
the electorate the question of calling such a convention (sec. 3, Art. XVII).

When shall the proposed amendment take effect. Any amendment to, or revision of, the
Constitution under Section 1 of Article XVII shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not earlier than sixty days nor later ninety days after
the approval of such amendment.

Any amendment under Section 2 of Article XVII shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later
than ninety days after the certification by the Commission on Elections of the sufficiency of the
petition (sec. 4, Art. XVII).

Academic Freedom

Academic freedom or, to be precise, the institutional autonomy of universities and

institutions of higher learning, has been enshrined in our Constitutions of 1935, 1973, and 1987.
In Garcia, this Court enumerated "the four essential freedoms" of a university: To determine for
itself on academic grounds (1) who may teach, (2) what may be taught, (3) how it shall be
taught, and (4) who may be admitted to study (First Class Cadet Aldrin F. Cudia v. The
Superintendent of the PMA, G.R. No. 211362, February 24, 2015).

Due process of law

Requisites for valid exercise of police power. To successfully invoke the exercise of
police power as the rationale for the enactment of law or Ordinance, and to free it from the
imputation of constitutional infirmity, not only must it appear that the interests of the public
generally, as distinguished from those of a particular class, require an interference with private
rights, but the means adopted must be reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals. (see City of Manila v. Laguio, Jr., 455
SCRA 308).

Void for vagueness. As a rule, a statute or act may be said to be vague when it lacks
comprehensible standards that men “of common intelligence must necessarily guess at its
meaning and differ as to its application.” It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it, fair notice

31
of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle (People v. Nazario, 165
SCRA, 186, 195-196).

Overbreadth doctrine. The overbreadth doctrine prohibits government from achieving its
purpose by means that sweep unnecessarily broadly, reaching constitutionally protected as well
as unprotected activity. Stated otherwise, the essence of overbreadth is that government has
gone too far; its legitimate interest can be satisfied without reaching so broadly into the area of
protected freedom (SWS, Inc. v. Commission on Elections, 357 SCRA 496, 515).

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible chilling effect upon protected speech. (Estrada v. Sandiganbayan,
369 SCRA 394).

Facial challenge is not proper in criminal statutes (see Estrada v. Sandiganbayan, 369
SCRA 394; Romualdez v. Commission on Elections, G.R. No. 167011, December 11, 2008, 573
SCRA 639).

Equal Protection Clause

Valid classifications. It is an established principle of constitutional law that the guaranty

of the equal protection of the laws is not violated by a legislation based on reasonable
classification. And the classification, to be reasonable, (1) must rest on substantial distinctions;
(2) must be germane to the purpose of the law; (3) must not be limited to existing conditions
only; and (4) must apply equally to all members of the same class (People v. Cayat, 68 Phil. 12,
18).

Tests for determining the reasonableness of classification

Strict scrutiny test. It requires the government to show that the challenged classification
serves a compelling state interest and the classification is necessary to serve that interest. This
test is used in cases involving classifications based on race, national origin, religion, alienage,
denial of the right to vote, interstate migration, access to courts and other rights recognized as
fundamental.

Intermediate or middle-tier scrutiny test. It requires government to show that the

challenged classifications serves an important state interest and that the classification is at least
substantially related to serving that interest. This is applied to suspect classifications like gender
and illegitimacy.

Minimum or rational basis scrutiny. The government needs only show that the
challenged classification is rationally related to serving a legitimate interest.

Right against unreasonable searches and seizures

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 Not all warrantless searches and seizures are prohibited. Not all searches and seizures
are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to the facts of each case
(Ricardo Valmonte and Union of Lawyers and Advocates for Peoples’ Rights (ULAP) v. Gen.
Renato de Villa and NCR-District Command, May 24, 1990, 188 SCRA 381).

Warrantless searches and seizures. Search and seizure may be made without a warrant
and the evidence obtained therefrom may be admissible in the following instances: (1) search
incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of
customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his
right against unreasonable searches and seizures (see People v. Doria, G.R. No. 125299, January
22, 1999).

Plainview search. The "plain view" doctrine applies when the following requisites
concur: (a) the law enforcement officer in search of the evidence has a prior justification for an
intrusion or is in a position from which he can view a particular area; (b) the discovery of
evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he
observes may be evidence of a crime, contraband or otherwise subject to seizure. (Miclat v.
People of the Philippines, GR No. 176077, August 31, 2011).

Freedom of Speech and Expression

Prior restraint. Prior restraint means official government restrictions on the press or other
forms of expression in advance of actual publication or dissemination (Bernas, Primer, 63).

Regulation of symbolic speech

When speech and non-speech elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the non-speech element can justify
incidental limitations on free speech. A governmental regulation is sufficiently justified if (1) it
is within the constitutional power of the government and (2) furthers an important or substantial
governmental interest unrelated to the suppression of free expression, and (3) if the incidental
restriction on alleged freedom is no greater than essential to that interest (SWS, Inc., 357 SCRA
496, 504).

Dangerous tendency rule. Speech may be curtailed or punished when it creates a

dangerous tendency which the State has the right to prevent. All it requires, for speech to be
punishable, is that there be a rational connection between the speech and the evil apprehended.

Clear and present danger test. The question in every case is whether the words used are
used in such circumstances and are of such nature as to create a clear and present danger that
they will bring about the substantive evil that Congress has the right to prevent. It is a question of
proximity and degree.

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 Balancing of interests test. When particular conduct is regulated in the interest of public
order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty
of courts is to determine which of the two conflicting interests demands the greater protection
under the particular circumstances presented.

Obscenity test. Three elements must concur before a material may be considered obscene:
(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b)
the material is patently offensive because it affronts contemporary community standards relating
to the description or representation of sexual matters; and (c) the material is utterly without
redeeming social value (Memoirs v. Massachusetts, 383 US 413).

Libel test. The test should be to determine whether the defamatory statement was made
with actual malice, that is, with knowledge that it was false or with reckless disregard of whether
it was false or not. The test laid down is the reckless disregard of truth test (see Tulfo v. People,
565 SCRA 283).

Content-based regulation of speech. Content-based restraint or censorship refers to

restrictions “based on the subject matter of the utterance or speech.” In contrast, content-neutral
regulation includes controls merely on the incidents of the speech such as time, place, or manner
of the speech (The Diocese of Bacolod v. COMELEC, GR No. 205728, January 21, 2015).

Content-based regulation bears a heavy presumption of invalidity. Content-based

regulation bears a heavy presumption of invalidity, and this court has used the clear and present
danger rule as measure. Under this rule, “the evil consequences sought to be prevented must be
substantive, ‘extremely serious and the degree of imminence extremely high.’” “Only when the
challenged act has overcome the clear and present danger rule will it pass constitutional muster,
with the government having the burden of overcoming the presumed unconstitutionality.” (see
The Diocese of Bacolod v. COMELEC, GR No. 205728, January 21, 2015).

Right to Privacy

Essence. The essence of privacy is the right to be left alone. In context, the right to
privacy means the right to be free from unwarranted exploitation of one’s person or from
intrusion into one’s private activities in such a way as to cause humiliation to a person’s ordinary
sensibilities (see SJS v. Dangerous Drugs Board, G.R. No. 157870, November 3, 2008).

Constitutional protections to zones of privacy. Two constitutional guarantees create zones

of privacy: (a) the right against unreasonable searches and seizures, which is the basis of the
right to be let alone, and (b) the right to privacy of communication and correspondence.

In assessing the challenge that the State has impermissibly intruded into these zones of
privacy, a court must determine whether a person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has been violated by unreasonable government

34
intrusion (Disini Jr., et al. v. Secretary of Justice, et al., G.R. No. 203335, February 18, 2014
and April 22, 2014).

Employees do not have any personal privacy rights regarding their use of the agency
information systems and technology, the government employee had no legitimate expectation of
privacy as to the use and contents of his office computer (see Pollo v. Chairperson Karina
Constantino-David, G.R. No. 181881, October 18, 2011).

Right to privacy to informational privacy. The concept of privacy has, through time,
greatly evolved, with technological advancements having an influential part therein. This
evolution was briefly recounted in former Chief Justice Reynato S. Puno’s speech, The Common
Right to Privacy, where he explained the three strands of the right to privacy, viz: (1) locational
or situational privacy; (2) informational privacy; and (3) decisional privacy.

Of the three, what is relevant to the case at bar is the right to informational privacy––
usually defined as the right of individuals to control information about themselves (Vivares v. St.
Theresa’s College, G.R. No. 202666, September 29, 2014).

Freedom of religion (Bar 2018)

Freedom of religion. The right to religions profession and worship has a two-fold aspect,
viz., freedom to believe and freedom to act on one’s belief. The first is absolute as long as belief
is confined within the realm of thought. The second is subject to regulation where the belief is
translated into external acts that affect the public welfare (Iglesia ni Cristo v. Court of Appeals,
259 SCRA 529, 543).

The state is absolutely prohibited by the Free Exercise Clause from regulating individual
beliefs, but placed on restriction on the ability of the state to regulate religiously motivated
conduct (Estrada v. Escritor, 408 SCRA 1, 91).

Protected aspects: religious convictions and beliefs, religious speech and expressive
conduct

Standard for Free Exercise Clause. If the purpose of a statute or other governmental
action is to single out religion for adverse treatment, or to hinder (or discriminate against) a
particular religion, it violates the Free Exercise Clause unless it is narrowly tailored to advance a
compelling state interest. Such laws will survive strict scrutiny only in rarer cases (Choper, 279).

Standard of review for restraint. The constitutional guaranty of free exercise and
enjoyment of religious profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can be justified like other restraints on freedom of
expression on the ground that there is clear and present danger of any substantive evil which the
State has the right to prevent (Choper, 549).

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 Clear and present danger test applies to speech directed at inciting lawlessness such as (1)
speech that advocate dangerous ideas, (2) speech that provokes a hostile audience reaction, (3)
out of court contempt, and (4) release of information that endangers fair trial (Id.).

Standard of review for religiously motivated conduct. The strict scrutiny and compelling
state interest test significantly increased the degree of protection afforded to religiously
motivated conduct. While not affording absolute immunity to religious activity, a compelling
secular justification was necessary to uphold public policies that collided with religious
practices.

Although the members of the Court often disagreed over which governmental interests
should be considered compelling, thereby producing dissenting and separate opinions in religious
conduct cases, this general test established strong presumption in favor of the free exercise of
religion (Estrada v. Escritor, 99).

Standard for Establishment Clause. The general principle deducible from the Non-
establishment clause is that we will not tolerate either governmentally established religion or
governmental interference with religion. Short of those expressly proscribed governmental acts
there is room for play in the joints productive of a benevolent neutrality which will permit
religious exercise to exist without sponsorship and without interference (Id., 118).

The Establishment Clause does more than forbid a state church or a state religion—but it
does not forbid every action by government that results in a benefit to religion. The goal is a
“benevolent neutrality” by the government with respect to religion (Walz v. Tax Commission,
397 U.S. 664).

Lemon test for the Establishment Clause. If a law or government action raises issues
under the Establishment Clause, the court usually applies a test requiring that, to be valid, the
law or action must: (1) have a secular purpose; (2) have a principal or primary effect that neither
advances nor inhibits religion; and (3) not foster excessive governmental entanglement with
religion (Choper, 263; see The Diocese of Bacolod v. COMELEC, GR No. 205728, January 21,
2015).

Right to information

The right to information covers three categories of information which are matters of
public concern, namely (1) official records; (2) documents and papers pertaining to official acts,
transactions and decisions; and (3) government research data used in formulating policies.

36
 The first category refers to any document that is part of the public records in the custody
of government agencies or officials. The second category refers to documents and papers
recording, evidencing, establishing, confirming, supporting, justifying or explaining official acts,
transactions or decisions of government agencies or officials. The third category refers to
research data, whether raw, collated or processed, owned by the government and used in
formulating government policies (Chavez v. Public Estates Authority, 384 SCRA 152, 187-188

Exceptions. The right to information does not extend to matters recognized as privileged
information under the separation of powers. The right does not also apply to information on
military and diplomatic secrets, information affecting national security, and information on
investigation of crimes by law enforcement agencies before the prosecution of the accused,
which courts have long recognized as confidential. The right may also be subject to other
limitations that Congress may impose (Chavez v. Public Estates Authority, 384 SCRA 152, 188).

Deliberative process privilege

Court sessions are executive in character, with only the Members of the Court present.
Court deliberations are confidential and shall not be disclosed to outside parties, except as may
be provided herein or as authorized by the Court.

The privilege against disclosure of these kinds of information/communication is known

as deliberative process privilege, involving as it does the deliberative process of reaching a
decision. "Written advice from a variety of individuals is an important element of the
government's decision-making process and that the interchange of advice could be stifled if
courts forced the government to disclose those recommendations;" the privilege is intended "to
prevent the 'chilling' of deliberative communications." (Production of Court Record, February
14, 2012

Deliberative process privilege maybe invoked in arbitration proceeding under Republic

Act No. 9285 (see Department of Foreign Affairs v. BCA International Corporation, G.R. No.
210858, June 29, 2016).

Requirements for protection of deliberative process privilege. To qualify for protection

under the deliberative process privilege, the agency must show that the document is both (1)
predecisional and (2) deliberative.

A document is “predecisional” under the deliberative process privilege if it precedes, in

temporal sequence, the decision to which it relates. In other words, communications are
considered predecisional if they were made in the attempt to reach a final conclusion.

Right against undue deprivation of private property

Scope. Private property shall not be taken for public purpose without just compensation
(sec. 9, art. 3).

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 Requisites for the valid exercise of the power of eminent domain. The following are the
requisites: (a) the property taken must be private property; (b) there must be genuine necessity to
take the private property; (c) the taking must be for public use; (d) there must be payment of just
compensation; and (e) the taking must comply with due process of law (Manapat v. Court of
Appeals, 536 SCRA 32).

When is there taking?

(1) the expropriator must enter a private property;

(2) the entrance into the private property must be for more than a momentary period;
(3) the entry into the property should be under warrant or color of legal authority;
(4) the property must be devoted to a public purpose, or otherwise informally, appropriately,
or injuriously affected; and
(5) the utilization of the property for public use must be in such a way as to oust the owner
and deprive him of all beneficial enjoyment of the property (Forform Development
Corporation v. Philippine National Railways, 573 SCRA 350).

Just compensation

In expropriation proceedings, just compensation is defined as the full and fair equivalent
of the property taken from its owner by the expropriator. The measure is not the taker’s gain, but
the owner’s loss. The word “just” is used to intensify the meaning of the word “compensation”
and to convey thereby the idea that the equivalent to be rendered for the property to be taken
shall be real, substantial, full, and ample.

The constitutional limitation of “just compensation” is considered to be as sum equivalent

to the market value of the property, broadly defined as the price fixed by the seller in open
market in the usual and ordinary course of legal action and competition; or the fair value of the
property; as between one who receives and the one who desires to sell it, fixed at the time of the
actual taking by the government (Republic v. Rural Bank of Kabacan, Inc., 664 SCRA 233).

Miranda rights

The Miranda doctrine requires that: (a) any person under custodial investigation has the
right to remain silent; (b) anything he says can and will be used against him in a court of law; (c)
he has the right to talk to an attorney before being questioned and to have his counsel present
when being questioned; and (d) if he cannot afford an attorney, one will be provided before any
questioning if he so desires (People v. Mojello, G.R. No. 145566, March 9, 2004).

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Fair trial rights

Live video coverage of trials not allowed. Considering the prejudice it poses to the
defendant's right to due process as well as to the fair and orderly administration of justice, and
considering further that the freedom of the press and the right of the people to information may
be served and satisfied by less distracting, degrading and prejudicial means, live radio and
television coverage of court proceedings shall not be allowed.

Video footages of court hearings for news purposes shall be restricted and limited to
shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the
commencement of official proceedings. No video shots or photographs shall be permitted during
the trial proper.

Right to cross-examine and confront the witnesses considered waived in trial-in absentia.
The contention of the respondent judge that the right of the accused to be presumed innocent will
be violated if a judgment is rendered as to him is untenable. He is still presumed innocent. A
judgment of conviction must still be based upon the evidence presented in court. Such evidence
must prove him guilty beyond reasonable doubt.

Also, there can be no violation of due process since the accused was given the
opportunity to be heard. Nor can it be said that an escapee who has been tried in absentia retains
his rights to cross-examine and to present evidence on his behalf. By his failure to appear during
the trial of which he had notice, he virtually waived these rights (Gimenez v. Nazareno, 160
SCRA 1).

Right to the protection of the writ of habeas corpus

Scope. The writ of habeas corpus extends to all cases of illegal confinement or detention
by which any person is deprived of his liberty or by which the rightful custody of a person is
being withheld from the one entitled thereto. It is issued when one is either deprived of liberty or
is wrongfully being prevented from exercising legal custody over another person. Thus, it
contemplates two instances: (1) deprivation of a person’s liberty either through illegal
confinement or through detention and (2) withholding of the custody of any person from
someone entitled to such custody (Veluz v. Villanueva, G.R. No. 169482, January 29, 2008, 543
SCRA 63).

Restrictive custody and monitored movements of police officers facing administrative

investigation are not grounds for the issuance of writ of habeas corpus. Restrictive custody and
monitoring of movements or whereabouts of police officers under investigation by their
superiors is not a form of illegal detention or restraint of liberty. Restrictive custody is, at best,
nominal restraint which is beyond the ambit of habeas corpus. It is neither actual nor effective
restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary

39
measure to assure the PNP authorities that the police officers concerned are always accounted for
(Ampatuan v. Macaraig, G.R. No. 182497, June 29, 2010; Manalo v. Calderon, 536 SCRA 290).

Writ of amparo. The writ of Amparo originated in Mexico. "Amparo" literally means
"protection" in Spanish. It was intended to address the intractable problem of "extralegal
killings" and "enforced disappearances," its coverage, in its present form, and confined to these
two instances or to threats thereof. "Extralegal killings" are "killings committed without due
process of law, i.e., without legal safeguards or judicial proceedings." On the other hand,
"enforced disappearances" are "attended by the following characteristics: an arrest, detention or
abduction of a person by a government official or organized groups or private individuals acting
with the direct or indirect acquiescence of the government; the refusal of the State to disclose the
fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of
liberty which places such persons outside the protection of law (see Secretary of National
Defense v. Manalo, G.R. No. 180906, October 7, 2008, 568 SCRA 1).

Various forms of writ of amparo. The writ of Amparo then spread throughout the
Western Hemisphere, gradually evolving into various forms, in response to the particular needs
of each country. It became, in the words of a justice of the Mexican Federal Supreme Court, one
piece of Mexico's self-attributed "task of conveying to the world's legal heritage that institution
which, as a shield of human dignity, her own painful history conceived." What began as a
protection against acts or omissions of public authorities in violation of constitutional rights later
evolved for several purposes: (1) Amparo libertad for the protection of personal freedom,
equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the
constitutionality of statutes; (3) Amparo casacion for the judicial review of the constitutionality
and legality of a judicial decision; (4) Amparo administrativo for the judicial review of
administrative actions; and (5) Amparo agrario for the protection of peasants' rights derived from
the agrarian reform process (see Secretary of National Defense v. Manalo, G.R. No. 180906,
October 7, 2008, 568 SCRA 1).

Right against self-incrimination (Bar 2018)

Scope. The right of the defendant in a criminal case "to be exempt from being a witness
against himself' signifies that he cannot be compelled to testify or produce evidence in the
criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so
even by subpoena or other process or order of the Court. He cannot be required to be a witness
either for the prosecution, or for a co-accused, or even for himself.

In other words — unlike an ordinary witness (or a party in a civil action) who may be
compelled to testify by subpoena, having only the right to refuse to answer a particular
incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to
testify altogether. He can refuse to take the witness stand, be sworn, answer any question. And,

40
as the law categorically states, "his neglect or refusal to be a witness shall not in any manner
prejudice or be used against him." (see People v. Judge Ayson, 175 SCRA 216).

BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for
preliminary investigation), but after having been taken into custody or otherwise deprived of his
liberty in some significant way, and on being interrogated by the police: the continuing right to
remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence,
threat, intimidation or any other means which vitiates the free will; and to have evidence
obtained in violation of these rights rejected; and

AFTER THE CASE IS FILED IN COURT —

a. to refuse to be a witness;
b. not to have any prejudice whatsoever result to him by such refusal;
c. to testify in his own behalf, subject to cross-examination by the prosecution;
d. WHILE TESTIFYING, to refuse to answer a specific question which tends to
incriminate him for some crime other than that for which he is then prosecuted.

Nuances on the right against self-incrimination. The constitutional right of an accused

against self-incrimination proscribes the use of physical or moral compulsion to extort
communications from the accused and not the inclusion of his body in evidence when it may be
material. Purely mechanical acts are not included in the prohibition as the accused does not
thereby speak his guilt, hence the assistance and guiding hand of counsel is not required. (People
vs. Olvis, 238 Phil. 513 [1987])

The essence of the right against self-incrimination is testimonial compulsion, that is, the
giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA
777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123
[1999])

Hence, it has been held valid:

1. For a woman charged with adultery may be compelled to submit to physical examination
to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920])

2. For an accused may be compelled to submit to physical examination to have a substance

taken from his body for medical determination as to whether he was suffering from
gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912])

3. to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917])

4. to have the outline of his foot traced to determine its identity with bloody footprints;
(U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and

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 5. to be photographed or measured, or his garments or shoes removed or replaced, or to
move his body to enable the foregoing things to be done (People vs. Otadora, 86 Phil.
244 [1950]) (see Dela Cruz v. People, G.R. No. 200748, July 23, 2014).

Right to political beliefs and right against involuntary servitude (Bar 2018)

No person shall be detained solely by reason of his political beliefs and aspirations.No
involuntary servitude in any form shall exist except as a punishment for a crime whereof the
party shall have been duly convicted (sec. 18, art. 3).

Requiring private healthcare providers to render 48 hours of pro bono reproductive

health services not involuntary servitude. It should first be mentioned that the practice of
medicine is undeniably imbued with public interest that it is both a power and a duty of the State
to control and regulate it in order to protect and promote the public welfare. Like the legal
profession, the practice of medicine is not a right but a privileged burdened with conditions as it
directly involves the very lives of the people. A fortiori, this power includes the power of
Congress to prescribe the qualifications for the practice of professions or trades which affect the
public welfare, the public health, the public morals, and the public safety; and to regulate
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion. A reading of the
assailed provision, however, reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono service. Other than non-
accreditation with PhilHealth, no penalty is imposed should they choose to do otherwise. Private
and non-government reproductive healthcare service providers also enjoy the liberty to choose
which kind of health service they wish to provide, when, where and how to provide it or whether
to provide it all. Clearly, therefore, no compulsion, force or threat is made upon them to render
pro bono service against their will. While the rendering of such service was made a prerequisite
to accreditation with PhilHealth, the Court does not consider the same to be an unreasonable
burden, but rather, a necessary incentive imposed by Congress in the furtherance of a perceived
legitimate state interest or control such professions or trades, even to the point of revoking such
right altogether (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014, 721 SCRA 146).

Right against cruel punishment and inhumane treatment

Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted. Neither shall the death penalty be imposed, unless, for compelling reasons involving
heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall
be reduced to reclusion perpetua. The employment of physical, psychological, or degrading
punishment against any prisoner or detainee or the use of substandard or inadequate penal
facilities under subhuman conditions shall be dealt with by law (sec. 19, art.3).

Right against double jeopardy (Bar 2018)

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 Double jeopardy exists when the following requisites are present: (1) a first jeopardy
attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second
jeopardy is for the same offense as in the first. A first jeopardy attaches only (a) after a valid
indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been
entered; and (e) when the accused has been acquitted or convicted, or the case dismissed or
otherwise terminated without his express consent (Cerezo v. People of the Philippines, G.R. No.
185230, June 1, 2011).

Appeal on ruling granting demurrer to evidence. The prosecution cannot appeal from a
ruling granting the demurrer to evidence of the accused as it is equivalent to an acquittal, unless
the prosecution can sufficiently prove that the court’s action is attended with grave abuse of
discretion. Otherwise, the constitutional right of the accused against double jeopardy will be
violated. The rule barring an appeal from a judgment of acquittal is, however, not absolute. The
following are the recognized exceptions thereto: (i) when the prosecution is denied due process
of law; and (ii) when the trial court commits grave abuse of discretion amounting to lack or
excess of jurisdiction in dismissing a criminal case by granting the accused’ demurrer to
evidence (People v. Sandiganbayan, G.R. No. 164577, July 5, 2010).

Right against ex post facto law

Concept. An ex post facto law has been defined as one — (a) which makes an action
done before the passing of the law and which was innocent when done criminal, and punishes
such action; or (b) which aggravates a crime or makes it greater than it was when committed; or
(c) which changes the punishment and inflicts a greater punishment than the law annexed to the
crime when it was committed; or (d) which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the commission of the offense in order to
convict the defendant.

The Supreme Court added two (2) more to the list, namely: (e) that which assumes to regulate
civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done
was lawful; or (f) that which deprives a person accused of a crime of some lawful protection to which he
has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of
amnesty (see Salvador v. Mapa, Jr., G.R. No. 135080, November 28, 2007).

The constitutional doctrine that outlaws an ex post facto law generally prohibits the
retrospectivity of penal laws. Penal laws are those acts of the legislature which prohibit certain acts and
establish penalties for their violations; or those that define crimes, treat of their nature, and provide for
their punishment. Administrative orders which do not mete out penalty for violations thereof, not being
penal laws, cannot be characterized as ex post facto laws (see Salvador v. Mapa, Jr., G.R. No. 135080,
November 28, 2007).

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