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BTX Notes On Legislative Dept PDF
BTX Notes On Legislative Dept PDF
LEGISLATIVE DEPARTMENT
Q: What is legislative power?
A: It is the power or competence of the Legislature to propose, enact, amend and repeal laws. It
is vested by the Constitution in the Congress, except to the extent reserved to the people by the
provision on initiative and referendum.
*Initiative – the power of the people to propose amendments to the Constitution or to propose
and enact legislation through an election called for the purpose
Referendum – the power of the people to approve or reject a piece of legislation (e.g. statute,
resolution, ordinance) through an election called for the purpose
Difference between initiative and referendum – initiative is entirely the work of the electorate
or the people therefore without the participation of Congress while referendum is begun and
consented to by the law-making body and is merely approving or rejecting a piece of legislation.
Q: What is Senate?
A: It is one of the chambers of Congress and it is composed of twenty-four (24) senators who are
elected at large by the qualified voters of the Philippines, as may be provided by law.
Q: Section 3 ,Art. VI of the Constitution provides that: “The Senate shall be composed of
twenty-four Senators and it is composed of twenty-four senators who shall be elected at
large by the qualified voters of the Philippines, as may be provided by law.” Does this mean
that the number of Senators may be increased by mere legislative enactment because of the
phrase “as may be provided by law?
A: No. The phrase as may be provided by law does not refer to the composition. It refers to the
manner on how the election shall be held or the mechanics for electing the Senators at large,
within the limits provided by the Constitution. Hence, it is only through constitutional
amendment that the number of Senators can be changed.
A: He must be 35 years old when the polls are opened and the votes are cast, and not on the day
of the proclamation.
A: No, because the list of qualifications provided in the Constitution is exclusive. Expressio
unius est exclusio alterius. The express mention of one thing excludes all the others.
Q: In the passage of a bill into law, what do you mean by appropriate committee?
A: It refers to a Senate or House of Representatives specific committee which is tasked to handle
specific issues (e.g. Committee on Accountability, Committee on National Defense and Security,
Committee on Health, Senate Blue Ribbon Committee)
Q: What is apportionment?
A: It is done by the Congress every three (3) years following the return of every census in order
to insure each legislative district is composed of the required number of inhabitants mandated by
the Constitution. It shall be made in accordance with the number of respective inhabitants on the
basis of a uniform and progressive ratio. The Constitution provides that each city with a
population of at least two hundred fifty thousand (250,000), or each province, shall have at least
one (1) representative.
N.B.: If Congress enacts a statute creating for a certain province, let us say, Province Y. Then,
such province by virtue of the abovementioned provision is automatically entitled to one
representative.
Q: What is gerrymandering?
A: It is the creation of representative districts out of separate portions of territory in order to
favor a candidate. This is prohibited under the Constitution because each legislative district shall
comprise, as far as practicable, contiguous, compact and adjacent territory.
A: (FUC-R) (Fucker)
(1) Filipino citizen
(2) Marginalized and underrepresented
(3) Lack of well-defined constituencies.
(4) There must be proportional representation
Proportional representation here does not refer to the number of people in a particular
district, because the party-list election is national in scope. Neither does it allude to numerical
strength in a distressed or oppressed group. Rather, it refers to the representation of the
"marginalized and underrepresented" as exemplified by the enumeration in Section 5 of the law;
namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals
Justice Leus: “I eexplain ko lang sa tagalog para hindi niyo na imememorize at mas
maintindihan.
Proportional Representation- Ibig sabihin niyo may representation ang mga under
represented, kung saan nationally, may mga members dun. Halimbawa mga matatanda.
Lack of well-defined constituencies – Ibig sabihin nito dapat hindi nakaenclose sa iisang
distrito lang. Kaya nga lack of well-defined constituencies. Halimbawa, mga matatanda, pasok
sila kasi hindi lang naman sa Las Pinas may matatanda. Unlike kapag isa kang Congressman,
ang constitutents mo ay ang nasa iisang distrito lang. Halimbawa nga ay sa Las Pinas lang. Dapat
hindi madefine ung constituencies mo at nagrerefer lang siya depende sa kung anu ang
nirerepresent mo. Halimbawa, Party-list representative ng mga may kapansanan sa bicol. Hindi
pwede dahil may defined constituency, mga nasa bicol.”
Q: Incompatible office
A: It refers to any other office or employment in the government or any subdivision, agency, or
instrumentality thereof including government-owned-or-controlled corporations (GOCCs) and
their subsidiaries. Members of the Congress cannot hold an incompatible office.
Purpose: To prevent owing loyalty to other offices. You cannot serve two masters at the same
time.
Purpose: To prevent trafficking in public office. These are offices that would ensure a senator to
a public office after the termination of his tenure.
A:
Such immunity may be availed of when Congress is in session, whether regular or special
and whether or not such legislator is actually attending a session.
**Privilege of speech is not absolute since he may be called to account for his remarks by his
colleagues in the Congress itself or punished for “disorderly behaviour”.
Justice Leus: Where does the power of Congress come from? Ibig sabihin paano nakuha yung
power na yun. Section 11 Art. 6 No member shall be questioned nor be held liable in any other
place for any speech or debate in the Congress or in any committee thereof.
**The phrase in any other place means that a member of the legislature cannot be made liable in
places other than Congress. Hence, it is only in Congress that its members can be punished.
NOTE: Two privileges are not available while the Congress is in recess.
Is intended to leave legislator unimpeded in the performance of his duties and free from fear of
harassment from outside.
Session- refers to the entire period from its initial convening until its final adjournment.
Final adjournment- this is the 30 days before the opening of next session.
Adjournment - The dismissal by court, legislative assembly or properly authorize officer, of the
business before them. To meet again another time appointed.
Q: What is a quorum?
A: Any number sufficient to transact business (Javellana vs Tayo)
There must be a concurrence of two thirds of all the members in suspending or expelling a
member.
Other modes of disciplinary measure are; deletion of unparliamentary remarks from the record,
fine, imprisonment and censure (Soft impeachment)
Disorderly behaviour- is the prerogative of the congress and cannot as a rule be judicially
reviewed.
Q: What is a journal?
A: It is a record of what is done and passed in a legislative assembly. It does not include those
which may affect national security, in the judgment of each House of Congress. The journal is
only a resume or the minutes if what transpired during a legislative session.
Q: Can the proper officers revoke their signatures in the enrolled bill?
A: Yes. It is only for the purpose for the authenticity of the bill, that is, that it has passed the
proper procedures.
Q: If there is a discrepancy between an enrolled bill and Journal, which would prevail?
A: In case of discrepancy between the two, the enrolled bill shall prevail.
Individual statements made by Members of the House, which are documented in the Journal, do
not necessarily reflect the view of the House. The enrolled bill is conclusive upon the courts as
regards the tenor of the measure passed by Congress and approved by the President. If there has
been any mistake in the printing of a bill, the remedy is by amendment or curative legislation,
not by judicial decree.
A: (sec. 17) The Senate and the HOR shall each have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election, returns, and qualifications of their respective
members.
Composition:
3 SC Justices designated by CJ, the senior justice shall be the chairman
6 members of the house, chosen on the basis of proportional representation from the
political parties registered.
Commission must act on the commission within thirty session days from their submission. This
is to prevent freezing appointments.
Ad interim appointments not acted upon at the time of adjournment of Congress even if the thirty
day period has not yet expired shall be deemed by-passed.
Q: What is a bill?
Approval or Authentication by the President and return to the House where the bill
originated; the president may veto the bill for changes or suggestions.
Q: The bill should embrace the principle of “One title, one subject rule”, why?
A: (1) to prevent Hodgepodge or log rolling legislation –“any act containing several subject with
unrelated matters representing diverse interest.”
(2) to prevent fraud or surprise upon the legislative by means of provisions in bills which the title
gave no information and which might therefore be overlooked and carelessly/ unintentionally
adopted.
(3)To fairly appraise the people through such publication of legislative proceedings
Q: What is an item?
A: refers to the particulars, the details, the distinct and severable parts of the bill.
Note: IAL is mandatory because refusal of such could hold a person in contempt, which is
punishable.
Limitations of IAL:
(1) in aid of legislation; (2) in accordance with duly published rules of procedure; (3) rights
of persons appearing in or affected by such inquiry shall be respected.
EXECUTIVE DEPARTMENT
Q: To whom the executive power vested
A: (Art.7 Sec.1) The executive power shall be vested in the president
Q: Qualifications of a President
A: (sec.2)
Natural born citizen of the Phil.
Registered voter
Able to read and write
At least 40 years of age at the day of election
Resident of the Phil of at least 10 years immediately preceding the next election
Q: Term of Pres.
A: 6 years
6. Borrowing Power
7. Diplomatic Power
8. Budgetary Power
9. Informing Power
10. Others
a. Call Congress to special session
b. Power to approve or veto bills
c. Consent to deputation of government personnel by COMELEC
d. Discipline such deputies
e. Emergency powers, by delegation from Congress
f. General supervision over LGs and autonomous regional governments.
(Justice Leus: Laging tandaan, may tinatawag tayong residual power of the President.)
Justice Leus again: The President, upon whom the executive power is vested, has unstated
residual powers other than those expressly stated in the Constitution and which are implied from
the grant of executive power and which is necessary for her to comply with the duties of the
Constitution. The powers of the President are not limited to what are expressly enumerated in the
article on the Executive Department and in the scattered provisions of the Constitution. (Marcos
vs ManglapuS)
Justice Leus ulit: Tandaan ulit! All powers that are neither Legislative or Judicial are presumed
to be Executive.
4. Those other officers whose appointments are vested in him by the Constitution. (requires
confirmation from the COA)
5. All other officers of the government whose appointments are not provided for by law (NO
confirmation from the COA)
6. Those whom he may be authorized by law to appoint. (NO confirmation from the COA)
A:
The President possesses the power of removal by implication from other powers expressly vested
in him.
1. It is implied from his power to appoint
2. Being executive in nature, it is implied from the constitutional provision vesting the executive
power in the President.
3. It may be implied from his function to take care that laws be properly executed; for without it,
his orders for law enforcement might not be effectively carried out.
4. The power may be implied from the President’s control over the administrative departments,
bureaus, and offices of the government. Without the power to remove, it would not be always
possible for the President to exercise his power of control.
Members of the career service. Members of the career service of the Civil Service who are
appointed by the President may be directly disciplined by him. (Villaluz v. Zaldivar) provided
that the same is for cause and in accordance with the procedure prescribed by law.
Members of the Cabinet. Members of the Cabinet and such officers whose continuity in office
depends upon the President may be replaced at any time. (Legally speaking, their separation is
effected not by removal but by expiration of term.) (See Alajar v. CA)
A:
(1) Officers exercising purely executive functions where tenure is not fixed by law. (members of
the cabinet;
(2) officers exercising quasi-legislative (members of SEC);
(3) Removal only by impeachment;
(4) civil service officers – remove only for cause as provided by law.
A: (sec.17) President shall have control of all: Executive Departments, Bureaus, Offices.
Control – power of an officer to alter, modify, set aside, or nullify what a subordinate had
done in the performance of his duties and to substitute the judgment of the former for that of the
latter.
Q: Military powers:
A: (sec.18) Section 18 grants the President, as Commander-in-Chief, a sequence of graduated
powers. From the most to the least benign, these are: the calling out power, the power to suspend
the privilege of the writ of habeas corpus, and the power to declare martial law. (Sanlakas v.
Executive Secretary)
The power of the sword makes the President the most important figure in the country in times of
war or other similar emergency.336 It is because the sword must be wielded with courage and
resolution that the President is given vast powers in the making and carrying out of military
decisions.
(8) Martial law does not automatically suspend the privilege of the writ of habeas corpus or the
operation of the Constitution. The civil courts and the legislative bodies shall remain open.
Military courts and agencies are not conferred jurisdiction over civilians where the civil courts
are functioning.
(9) The suspension of the privilege of the writ of habeas corpus shall apply only to persons
facing charges of rebellion or offenses inherent in or directly connected with invasion.
(10) Any person arrested for such offenses must be judicially charged therewith within three
days. Otherwise shall be released.
(5) Amnesty – act of grace, with concurrence of legislature, usually extended to group of puts
into oblivion the offense itself
** Discretionary exercise by the President
** Cannot be controlled by the legislature or reversed by courts unless there is a
constitutional violation.
Limitations:
1. Cannot be granted in cases of impeachment
2. Cannot be granted in cases of violation of election offenses without favourable
recommendation of COMELEC
3. Cannot be granted in cases of legislative contempt or civil contempt
4. Cannot absolve civil liability
5. Cannot restore public offices forfeited
Exceptions: On consideration of justice and equity, entitled to reinstatement
6. Only after conviction of final judgement
SUPPLEMENTAL NOTES
A: 1. Prohibition against the change of the President’s salary either by reduction or increase
during his/her term
- “The salaries of the President and Vice-President shall be determined by law and shall
not be decreased during their tenure. No increase in said compensation shall take effect
until after the expiration of the term of the incumbent during which such increase was
approved.” (Art. VII, Sec. 6)
2. Prohibition against receiving emoluments from the government or any other source during
the President’s tenure
- emolument – refers to any compensation received for services rendered or from possession
of an office
- This means that the President cannot accept other employment elsewhere, whether in the
government or in the private sector, and must confine himself/herself to the duties of his/her
office. (Note that the Vice-President may be appointed to the Cabinet but he/she may not
receive additional compensation in his/her capacity as Member of the Cabinet because of the
ABSOLUTE prohibition in Art. VII, Sec. 6.
3. Prohibition against holding any other office or employment during his/her tenure
- “The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment
during their tenure.” (Art. VII, Sec. 13)
- This inhibition is in line with the principle that a public office is a public trust and should
not be abused for personal advantage.
- - Except for the Vice-President who may be appointed to the Cabinet, and the Secretary of
Justice who is made ex officio member of the Judicial and Bar Council, the officials
enumerated in Section 13 may not hold another office. But they may be given additional
functions which are intimately related to their primary office. Such conferment of additional
functions does not constitute a new appointment. Congress may increase the power and
duties of an existing office without thereby rendering it necessary that the incumbent should
again be nominated and appointed. Incidentally, when an Undersecretary sits for a Secretary
in a function for which the Secretary may not receive additional compensation, the
prohibition on the Secretary also applies to the Undersecretary. It should also be noted that
the stricter prohibition is imposed on “Members of the Cabinet”. It therefore applies not just
to department secretaries, but to anyone who is a Member of the Cabinet even if he/she is not
a head of a department.
4. Prohibition against practicing any other profession, participating in any business, or being
financially interested in any contract with, or in any franchise, or special privilege granted by
the Government
- “They shall not, during said tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.” (Art.
VII, Sec. 13)
- This will discontinue the lucrative practice of Cabinet members occupying seats in the
boards of directors of affluent corporations owned or controlled by the government from
which they derive substantial income in addition to their regular salaries.
- Prohibited participation in a contract with the government can include being a member of a
family corporation which has dealings with the government
- Reasons for the prohibition:
(1) to avoid conflict of interest; and
(2) to force the officials to devote full time to their official duties.
*Beyond the constitutional prohibitions there also is the rule on incompatible offices. Thus,
since the Chief Presidential Legal Counsel has the duty of giving independent and impartial
legal advice on the actions of the heads of various executive departments and agencies and to
review investigations involving other presidential appointees, he may not occupy a position
in any of the offices whose performance he must review. Such would involve occupying
incompatible positions. Thus, he cannot be Presidential Commission on Good Government
(PCGG) Chairman and at the same time head of the PCGG since the PCGG answers to the
President.
Q: What is a Cabinet?
A: It is an extra-constitutionally created institution which essentially consists of the heads of
departments who through usage have formed a body of presidential advisers who meet regularly
with the President. Although they are the principal officers through whom the President executes
the law, the President, through his/her power of control over them and his/her power to remove
them at will, remains the chief of administration. Cabinet members as individuals and the
Cabinet as institution possess no authority over the President. They serve at the behest and
pleasure of the President.
The prohibition against holding any other office must not be construed as applying to posts
occupied by the executive officials without additional compensation in an ex-officio capacity as
provided by law and as required by the primary functions of the said official’s office. The reason
is that the posts do not comprise “any other office” within the contemplation of the constitutional
prohibition, but properly an imposition of additional duties and functions on said officials. To
illustrate, the Secretary of Transportation and Communications is the ex officio Chairman of the
Board of Philippine Ports Authority. The ex officio position being actually and in legal
contemplation part of the principal office, it follows that the official concerned has no right to
receive additional compensation for his services in said position. The reason is that these services
are already paid for and covered by the compensation attached to the principal office. (National
Amnesty Commission v. COA, 2004)
The Constitution does not expressly provide for the immunity of the President. It is a necessary
corollary of the fact that in a presidential system, the presidency includes many other functions
than just being executive. The president is the [symbolic and] ceremonial head of the
government of the [Philippines].
*session – refers to the entire period from the Congress’ initial convening until its final
adjournment
Note: In David v. Arroyo, the Court held that it is improper to implead President Arroyo as
respondent. However, it is well to note that in Rubrico v. Arroyo, Min. Res., GR No, 180054,
October 31, 2007, the Supreme Court ordered the respondents, including President Arroyo, to
make a return of the writ: “You, respondents President Macapagal Arroyo….are hereby required
to make a return of the writ before the Court of Appeals…”
2. Public convenience
- By reason of public convenience, the grant is to assure the exercise of presidential duties and
functions free from any hindrance or distraction, considering that the Chief Executive is a job
that, aside from requiring all of the office-holder’s time, also demands undivided attention.
(Soliven v. Makasiar)
* “The President during his tenure of office or actual incumbency, may not be sued in ANY civil
or criminal case. It will degrade the dignity of the high office of the President, the Head of State,
if he can be dragged into court litigations while serving as such.” (David vs. Ermita)
Q: What are the powers of the president (powers vested by the Constitution)?
A: (1) Appointing power
(2) Removal power
(3) Control power
(4) Power to take care that the laws be faithfully executed
(5) Military power
(6) Pardoning power
(7) Borrowing power
(8) Diplomatic power
(9) Budgetary power
(10) Informing power
(11) Other powers – power to call the Congress to special session, power to approve or veto
bills, power to consent to the deputization of government personnel by the Commission on
Elections and to discipline its deputies, power to exercise emergency and tariff powers
Q: What are those powers of the President not vested by the Constitution?
A: Residual powers which are those which are implicit in and correlative to the paramount duty
residing in that office to safeguard and protect general welfare. (See the case of Marcos vs.
Manglapus)
Section 14. Appointments extended by an Acting President shall remain effective, unless
revoked by the elected President within ninety days from his assumption or reassumption of
office.
Section 15. Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.
Special Limitations
1. (Anti-Nepotism Provision) The President may not appoint his spouse and relatives by
consanguinity or affinity within the fourth civil degree as Members of the Constitutional
2. Appointments extended by an acting President shall remain effective unless revoked by the
elected President within 90 days from his assumption of office. (Section 14)
3. (Midnight Appointments) Two months immediately before the next presidential elections and
up to the end of his term, a President or acting President shall not make appointments except for
temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety. (Section 15)
4. The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproval
by the CA or until the next adjournment of Congress. (Section 16 par. 2)
Rule [Section 15] applies in the appointments in the Judiciary. Two months immediately
before the next presidential elections and up to the end of his term, a President or Acting
President shall not make appointments, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or endanger public safety. Since
the exception applies only to executive positions, the prohibition covers appointments to the
judiciary.305 During this period [2 months immediately before the next presidential elections…],
the President is neither required to make appointments to the courts nor allowed to do so. Section
4(1) and 9 of Article VIII simply mean that the President is required by law to fill up vacancies
in the courts within the same time frames provided therein unless prohibited by Section 15 of
Article VII. While the filing up of vacancies in the judiciary is undoubtedly in the public interest,
there is no showing in this case of any compelling reason to justify the making of the
appointments during the period of the ban. (In Re Appointment of Mateo Valenzuela, 1998)
Provision applies only to presidential appointments. The provision applies only to presidential
appointments. There is no law that prohibits local executive officials from making appointments
during the last days of their tenure. (De Rama v. CA)
Other Limitations:
1. The presidential power of appointment may also be limited by Congress through its power to
prescribe qualifications for public office.
2. The judiciary may annul an appointment made by the President if the appointee is not
qualified or has not been validly confirmed.
Q: Who among those appointed do not need confirmation from the Commission on
Appointments?
A: Other officers lower in rank (Art. VII, Sec. 16, third sentence of first paragraph)
Significance of the phrase “the President alone”. Alone means to the exclusion of the courts,
the heads of departments, agencies, commissions or boards. Appointing authority may also be
given to other officials. Thus, Section 16 says: “The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards.” In Rufino vs. Endriga this was interpreted to
mean that, when the authority is given to collegial bodies, it is to the chairman that the authority
is given. But he can appoint only officers “lower in rank,” and not officers equal in rank to him.
Thus a Chairman may not appoint a fellow member of a Board. (SEE SARMIENTO VS.
MISON FOR SIGNIFICANCE OF THE WORD “ALONE”)
vested in the President, such appointments do not need confirmation by the Commission on
Appointments)
Why from rank of colonel. The provision hopefully will have the effect of strengthening
civilian supremacy over the military. To some extent, the decision of the Commission was
influenced by the observation that coups are generally led by colonels.
Military officers. The clause “officers of the armed forces from the rank of colonel or naval
captain” refers to military officers alone. Hence, promotion and appointment of officers of
Philippine Coast Guard which is under the DOTC (and not under the AFP), do not need the
confirmation of Commission on Appointments. (Soriano v. Lista, 2003) Also, promotion of
senior officers of the PNP is not subject to confirmation of CA. PNP are not members of the
AFP. (Manalo v. Sistoza, 1999)
Chairman of Commission on Human Rights (CHR). The appointment of the Chairman of the
CHR is not provided for in the Constitution or in the law. Thus, there is no necessity for such
appointment to be passed upon by the Commission on Appointments. (Bautista v. Salonga)
The President possesses the power of removal by implication from other powers expressly vested
in him.
As a general rule, the power of removal may be implied from the power of appointment.
However, the President cannot remove officials appointed by him where the Constitution
prescribes certain methods for separation of such officers from public service, e.g., Chairmen
and Commissioners of Constitutional Commissions who can be removed only by impeachment,
or judges who are subject to the disciplinary authority of the Supreme Court. In the cases where
the power of removal is lodged in the President, the same may be exercised only for cause as
may be provided by law, and in accordance with the prescribed administrative procedure.
Members of the career service. Members of the career service of the Civil Service who are
appointed by the President may be directly disciplined by him. (Villaluz v. Zaldivar) provided
that the same is for cause and in accordance with the procedure prescribed by law.
Members of the Cabinet. Members of the Cabinet and such officers whose continuity in office
depends upon the President may be replaced at any time. (Legally speaking, their separation is
effected not by removal but by expiration of term.) (See Alajar v. CA)
Cases:
1. Marcos vs. Manglapus (Residual powers)
2. Sarmiento vs. Mison (Significance of the word “alone” in the third sentence of the first
paragraph of Art. VII, Sec. 16)
*Memorize Art. VII, Sec. 16
Judicial Department
BTX Notes in Constitutional Law 1
Brotherhood. Trust. Xcellence.
There’s no other way but the BTX Way. Page 39
Disclaimer: BTX is not a fraternity. It is just what we call our brotherhood composed of former Legal
Management students of San Beda College-Manila.
Members: Kent Limpot, Yadj Juanico, Kevin Leus, Marben Silva, Allen Sopoco, King Defante, Justin
Abraham, Nate Rebudal, Francis Geronimo, Monico Aggabao, Mikko Escoto, Jireh Bringas, Sockie
Averia, Nur Dimapanat, Koko Quadra, RJ Baclig, Raven Libunao, Bennet Veloya, Mark Tamayo, Kiel
Rivera, James Culla, Jupi Malabanan, Dring Ferrer, Gelle Obas, Daryl Plan, Rovin Feliciano, Atea Zara,
Raven Libunao, Rommel Amador, Gregg Namin, Richard Siccion, Ali Manuel, Jim Alberto, Jasper
Aquino
BTX
San Beda College-Manila
College of Law
Q: If the President, upon seeing an open man-hole on the road, can he call the Secretary of
Department of Public Works and Highways (DPWH) to fix it?
A: No. the judiciary is a passive branch of the government. It will not require an action not only
against the government but as well as against private individuals without a complaint or petition
that is found meritorious.
Q: On the other hand, can the Chief Justice of the Supreme Court (SC), upon seeing a
person stabbing another, and upon reaching the SC she wrote a decision convicting the
person of murder, can he do that?
A: No, because that the judiciary is a passive branch of the government.
authority of a branch of government. Justiciable questions are issues where there has been a
grave abuse of discretion on the part of a branch of government.
A: S3IRA5-DJ3
(1) The Supreme Court now has administrative supervision over all lower courts and their
personnel
(2) (8) The members of the Supreme Court and all lower courts have security of tenure,
which cannot be undermined by a law reorganizing the Judiciary.
(3) The salaries of judges may not be reduced during their continuance in office.
(4) The members of the Supreme Court may not be removed except by impeachment.
(5) The Supreme Court alone may initiate rules of court.
(6) The Supreme Court is a constitutional body. It cannot be abolished nor may its
membership or the manner of its meetings be changed by mere legislation.
(7) The members of the Supreme Court shall not be designated to any agency performing
quasi-judicial or administrative functions.
(8) The Judiciary shall enjoy fiscal autonomy.
(9) Only the Supreme Court may order the temporary assignment of judges.
(10) Supreme Court can appoint all officials and employees of the Judiciary.
(11) The Supreme Court has exclusive power to discipline judges of lower courts.
(12) The appellate jurisdiction of the Supreme Court may not be increased by law
without its advice and concurrence.
(13) The Supreme Court may not be deprived of its minimum original and appellate
jurisdiction.
(14) Appointees to the Judiciary are now nominated by the Judicial and Bar Council
(JBC) and no longer subject to confirmation by the Commission on Appointments
(COA)
Q: What is the reason for requiring at least three nominees for every vacancy?
A: To give the President enough leeway in the exercise of his discretion when he makes his
appointment. If the nominee were limited to only one, the appointment would in effect be made
by the Judicial and Bar Council, with the President performing only the mechanical act of
formalizing the commission.
Q: What are the qualifications required for members of the Supreme Court or any lower
collegiate court?
A:
The general qualification is that every member of the Judiciary be a person of proven
competence, integrity, probity, and independence.
These qualifications, having been enumerated in an exclusive manner, may not be reduced or
increased by the Congress through ordinary legislation. Thus, a statute requiring that the
members shall hold a doctorate degree in law, while calculated to improve the stature of the
Supreme Court, would still be unconstitutional.
But in the case of the judges of the other lower courts, it is expressly permitted for the Congress
to add to the constitutional qualifications, the same being only minimum requirements. Thus, it is
competent for the Legislature to provide for age or practice qualifications for such judges in
addition to the citizenship and professional qualification.
(1) It is the only non-political department among the three (3) branches. Justices/judges are
not elected but appointed.
(2) It is a passive agency. It means that someone must invoke its jurisdiction. Someone must
file a complaint so that the court may exercise its power.
Q: What if you did not raise the constitutional question in the pleading, can the
constitutional question still be considered in the trial?
A: It depends. There are cases when you can still raise the constitutional question during the trial
and vice-versa.
(1) In criminal cases, the constitutional question can be raised at any time in the discretion of
the court.
(2) In civil cases, the constitutional question can be raised at any stage if it is necessary to the
determination of the case itself.
(3) In every case, except where there is estoppel, the constitutional question may be raised at
any stage if it involves the jurisdiction of the court.
Q: What are the instances when the court can inquire into, or take cognizance of, a moot
and academic issue?
A:
*Proper party
Test – Direct Injury Test
Concerned citizen
Taxpayer
Voter
Legislator
*Supervening event
*Other important points in Cruz’ book
SUPPLEMENTAL NOTES
Judicial Department
Pursuant to the Constitution, judicial power is vested in the Supreme Court and the lower courts.
It includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Q: What is jurisdiction?
A: It is the authority by which courts take cognizance of and decide cases, the legal right by
which judges exercise their authority. Otherwise stated, it is the power and authority of the court
to hear, try and decide a case.
As to original jurisdiction, it has the power to exercise original jurisdiction over cases affecting
ambassadors, other public ministers, and consuls, and over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus.
As to appellate jurisdiction, it has the power to review, revise, reverse, modify, or affirm on
appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of
lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
(1) The Supreme Court is a constitutional body. It cannot be abolished nor may its
membership or the manner of its meetings be changed by mere legislation.
(2) The members of the Supreme Court may not be removed except by impeachment.
(3) The Supreme Court may not be deprived of its minimum original and appellate
jurisdiction as prescribed in Article VIII, Section 5, of the Constitution.
(4) The appellate jurisdiction of the Supreme Court may not be increased by law without
its advice and concurrence.
(5) Appointees to the judiciary are now nominated by the Judicial and Bar Council and
no longer subject to confirmation by the Commission on Appointments.
(6) The Supreme Court now has administrative supervision over all lower courts and their
personnel.
(7) The Supreme Court has exclusive power to discipline judges of lower courts.
(8) The members of the Supreme Court and all lower courts have security of tenure,
which cannot be undermined by a law reorganizing the judiciary.
(9) They shall not be designated to any agency performing quasi-judicial or
administrative functions.
(10) The salaries of judges may not be reduced during their continuance in office.
(11) The judiciary shall enjoy fiscal autonomy.
(12) The Supreme Court alone may initiate rules of court.
(13) Only the Supreme Court may order the temporary detail of judges.
(14) The Supreme Court can appoint all officials and employees of the judiciary.
This grant of fiscal autonomy contemplates a guarantee of full flexibility to allocate and utilize
the judiciary’s resources with the wisdom and dispatch that its needs require.
The members of the Supreme Court may be removed from office on impeachment for, and
conviction of: (1) culpable violation of the Constitution; (2) treason; (3) bribery; (4) graft and
corruption; (5) other high crimes; and (6) betrayal of public trust (Article XI, Section 2)
A Supreme Court Justice cannot be charged in a criminal case or a disbarment proceeding,
because the ultimate effect of either is to remove him from office, and thus circumvent the
provision on removal by impeachment thus violating his security of tenure.
It is the Supreme Court that is tasked to oversee the judges and court personnel and take the
proper administrative action against them if they commit any violation of the laws of the land.
No other branch of government may intrude into this power, without running afoul of the
independence of the judiciary and the doctrine of separation of powers.
Broadened Concept: Duty to determine whether [or not] there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the party of any branch or
instrumentality of the Government. (Art. VIII, Section 1, 2nd sentence)
The power of judicial review is the Supreme Court’s power to declare a law, treaty, international
or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or
regulation unconstitutional. This power is explicitly granted by Section 5(2), (a) and (b). Judicial
Review is an aspect of Judicial Power.
Theory of Judicial Review. The Constitution is the supreme law. It was ordained by the people,
the ultimate source of all political authority. It confers limited powers on the national
government. x x x If the government consciously or unconsciously oversteps these limitations
there must be some authority competent to hold it in control, to thwart its unconstitutional
attempt, and thus to vindicate and preserve inviolate the will of the people as expressed in the
Constitution. This power the courts exercise. This is the beginning and the end of the theory of
judicial review.
Judicial Review in Philippine Constitution. Unlike the US Constitution which does not
provide for the exercise of judicial review by their Supreme Court, the Philippine Constitution
expressly recognizes judicial review in Section 5(2) (a) and (b) of Article VIII of the
Constitution.
Rule on the Double Negative- Uses the term “not unconstitutional”; the court cannot
declare a law constitutional because it already enjoys a presumption of constitutionality
3. Symbolic - to educate the bench and the bar as the controlling principles and concepts on
matters of great public importance.
In a Separate Opinion in Francisco v. HR, Mr. Justice Adolf Azcuna remarked: “The function of
the Court is a necessary element not only of the system of checks and balances, but also of a
workable and living Constitution. For absent an agency, or organ that can rule, with finality, as to
what the terms of the Constitution mean, there will be uncertainty if not chaos in governance...
This is what… Hart calls the need for a Rule of Recognition in any legal system…”
(1) There must be an actual case or controversy calling for the exercise of judicial power. The
question involved must be ripe for adjudication.
(2) The person challenging the act must have “standing” to challenge. He/she must have a
personal and substantial interest in the case, such that he has sustained or will sustain, direct
injury as a result of its enforcement.
(3) The question of constitutionality must be raised at the earliest possible opportunity.
(4) The issue of constitutionality must be the very lis mota of the case. (The decision of the
constitutional question must be necessary to the determination of the case itself)
Actual Case
Actual Case or controversy involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial determination.
Moot Case. A moot case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.
However, courts will decide cases, otherwise moot and academic, if:
1. There is a grave violation of the Constitution;
2. The exceptional character of the situation and the paramount public interest is involved;
3. When the constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and
4. The case is capable of repetition yet evading review. (Province of Batangas vs. Romulo, 429
SCRA 736; David v. Arroyo (2006) Quizon v. Comelec, G.R. No. 177927, February 15, 2008.)
The requirement of actual controversy encompasses concepts such as ripeness, standing, and the
prohibition against advisory judicial rulings (BP Chemicals v. UCC, 4 F.3d 975)
Ripeness Doctrine. The requirement that a case be ripe for judgment before a court will decide
the controversy. Ripeness refers to readiness for adjudication.
Rationale. To prevent the courts, through premature adjudication, from entangling themselves in
abstract disagreements.
When Not Ripe. A claim is not ripe for adjudication if it rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at all.
Ripeness and Standing. A simple description of the requirements of standing and ripeness is
found in the words of Justice Stone in Nashville v. Wallace. In that opinion he referred to:
“valuable legal rights… threatened with imminent invasion.” The valuable legal rights constitute
the standing and the threat of imminent invasion constitute the ripeness.
Standing/Proper Party
Proper Party- A proper party is one who has sustained or is in immediate danger of sustaining an
injury in result of the act complained of.
Locus Standi - refers to the right of appearance in a court of justice on a given question.
General Rule
Direct Interest Test: The persons who impugn the validity of a statute must have a personal and
substantial interest in the case such that he has sustained or will sustain, direct injury as a result.
Exceptions:
1. Cases of transcendental importance or of paramount public interest or involving an issue of
overarching significance.
2. Cases of Proclamation of martial law and suspension of the privilege of the writ of habeas
corpus where any citizen may challenge the proclamation of suspension.
3. The right to information on matters of public concern and the right to access to public
documents has been recognized as accruing to mere citizenship. (Legaspi v. CSC, 150 SCRA
530 (1987)
4. Facial Challenge
Requisites of Standing:
A citizen can raise a constitutional question only when:
1. Injury: He can show that he has personally suffered some actual or threatened injury because
of the allegedly illegal conduct of the government;
2. Causation: The injury is fairly traceable to the challenged action; and
3. Redressability: A favorable action will likely redress the injury. (Francisco v. Fernando GR
166501, 2006)
In a public suit, where the plaintiff asserts a public right in assailing an allegedly illegal official
action, our Court adopted the “direct injury test” in our jurisdiction. (David v. Arroyo)
Direct Injury Test: The persons who impugn the validity of a statute must have a personal and
substantial interest in the case such that he has sustained or will sustain, direct injury as a result.
(David v. Arroyo) [See People v. Vera, 65 Phil 58, 89 (1937)].
By way of summary, the following rules may be culled from the cases decided by the Supreme
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
5. for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators [David v. Arroyo G.R. No. 171396 (2006)]
Facial Challenge. The established rule is that a party can question the validity of a statute only
if, as applied to him, it is unconstitutional. The exception is the so-called “facial challenge.” But
the only time a facial challenge to a statute is allowed is when it operates in the area of freedom
of expression. In such instance, the “overbreadth doctrine” permits a party to challenge to a
statute even though, as applied to him, it is not unconstitutional, but it might be if applied to
others not before the Court whose activities are constitutionally protected. Invalidation of the
statute “on its face”, rather than “as applied”, is permitted in the interest of preventing a “chilling
effect” on freedom of expression (Justice Mendoza’s concurring opinion in Cruz v. DENR, G.R.
No. 135395, December 06, 2000) A facial challenge to a legislative act is the most difficult
challenge to mount successfully since the challenge must establish that no set of circumstances
exists under which the act would be valid. (Estrada v. Sandiganbayan, G.R. No. 148560,
November 19, 2001)
Earliest Opportunity
General Rule: Constitutional question must be raised at the earliest possible opportunity, such
that if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered
in trial, cannot be considered on appeal.
Exceptions:
1. In criminal cases, the constitutional question can be raised at any time in the discretion of the
court.
2. In civil cases, the constitutional question can be raised at any stage if it is necessary to the
determination of the case itself.
3. In every case, except where there is estoppel, the constitutional question may be raised at any
stage if it involves jurisdiction of the court.
Necessity/Lis Mota
Rule: The Court will not touch the issue of unconstitutionality unless it really is unavoidable or
is the very lis mota.
Reason: The reason why courts will as much as possible avoid the decision of a constitutional
question can be traced to the doctrine of separation of powers which enjoins upon each
department a proper respect for the acts of the other departments. The theory is that, as the joint
act of the legislative and executive authorities, a law is supposed to have been carefully studied
and determined to be constitutional before it was finally enacted. Hence, as long as there is some
other basis that can be used by the courts for its decision, the constitutionality of the challenged
law will not be touched and the case will be decided on other available grounds.
Motu Propio Exercise of Judicial Review. While courts will not ordinarily pass upon
constitutional questions which are not raised in the pleadings, a court is not precluded from
inquiring into its own jurisdiction or be compelled to enter a judgment that it lacks jurisdiction to
enter. Since a court may determine whether or not it has jurisdiction, it necessarily follows that it
can inquire into the constitutionality of a statute on which its jurisdiction depends. (Fabian v.
Desierto, 295 SCRA 470)493
Textual Kind
1. A textually demonstrable constitutional commitment of the issue to a political department;
Functional Kind
2. Lack of judicially discoverable and manageable standards for resolving it;
3. Impossibility of deciding a case without an initial determination of a kind clearly for non-
judicial discretion; [Baker v. Carr, 369 US 186 (1962)]
Prudential Type
4. Impossibility of a court’s undertaking independent resolution without expressing lack of the
respect due coordinate branches of the government;
There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or
jurisprudence; or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill
will or personal bias.
Q: What is impeachment?
A: It is a method of national inquest into the conduct of public men. It is an extraordinary means
of removal exercised by the Legislature over a selected number of officials, the purpose being to
ensure the highest care in their indictment and conviction and the imposition of special penalties
in case of a finding guilt, taking into account the degree or nature of the offense committed and
the high status of the wrongdoers.
Q: What is the importance of the one-third (1/3) of the members of the House of
Representatives?
A: In case the verified complaint or resolution of impeachment is filed by at least 1/3 of all the
Members of the House, the same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
Q: Can the Senate propose penalty and imprisonment if the official on trial is found guilty
of a crime like treason?
A: Yes provided that the official is criminally prosecuted. When criminally prosecuted for the
offense which warranted his conviction on impeachment, the officer cannot plead the defense
of double jeopardy.
Q: What is Sandiganbayan?
A: The term is a Tagalog word meaning “support of the nation” or “sandigan ng bayan”. Implicit
in the name is the idea that the people can rely on this body for the attainment of the specific
goals addressed to its attention. It is the present anti-graft court.
Current Events
Is PDAF constitutional?
Option #1: Yes, the PDAF is constitutional as enunciated by the SC in the in the landmark cases
of PHILCONSA vs. Enriquez and LAMP vs. Secretary of Department of Budget and
Management. In that former case, the SC held that the CDF (the predecessor of PDAF) is
constitutional because the actions of the congressmen and senators are limited only to
recommending or proposing projects. The implementation and execution are still done by the
executive department. On the latter case, the SC held that PDAF is constitutional because there
was no evidence to establish the fact that individual members of Congress received and
thereafter spend funds out of PDAF.
Option #2: No, the PDAF is unconstitutional because Section 25(6), Article VI provides that
discretionary funds appropriated for particular officials shall be disbursed only for public
purposes, to be supported by appropriate vouchers and subject to such guidelines as may be
prescribed by law. The PDAF was used in contravention of the mentioned constitutional
provision because in went to the pockets of private individuals, senators and congressmen.
Furthermore, the vouchers used in liquidating the projects are all simulated because it was issued
by bogus non-government organizations.
Is DAP constitutional?
Option #1: Yes, the DAP is constitutional because the President is authorized under Section
25(5), Article VI to augment any item in the appropriations for the executive branch using
savings from other items of the appropriations of the said branch. What the Senators did was
merely to recommend existing projects which are yet to be implemented. Full discretion is still
within the executive department.
Option #2: No, the DAP is unconstitutional because the authority of the President under Section
25(5), Article VI to realign savings is limited only to existing appropriations in the executive
branch. It does not authorize him to augment items in the appropriations of the legislative branch
using the savings of the executive branch. Furthermore, there is no law which authorizes the
release of such funds. Section 29(1), Article VI provides that no money shall be paid out of the
Treasury except in pursuance of an appropriation made by law. The intention of the President to
spur the economy using the DAP may be noble but the same is not authorized under the law.
Ours is a government of laws and not of men.