Consti 1 Reviewer (Manguera) PDF

FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY

SCHOOL OF LAW
Atty. ARIS S. MANGUERA
MANGUERA OUTLINE 2011

CONSTITUTIONAL LAW I
PART I
VERSION 4.0/ OF V.13
organs of the state and defines the relations of the

state with the inhabitants of its territory.2
PRELIMINARIES
B. Subdivisions of Political Law
1. Law of public administration
I. Political Law 2. Constitutional law
A. Definition of Political Law 3. Administrative law
B. Subdivisions of Political Law 4. Law of public corporations3
C. Basis of Philippine Political Law
C. Basis of Philippine Political Law
II. Constitution
A. Definition of Constitution The principles of government and political law of
B. Philosophical View of the Constitution the Philippines are fundamentally derived from
C. Purpose of Constitution American jurisprudence. This conditions was the
D. Classifications of Constitutions inevitable outcome of the establishment of the
E. Qualities of a Good Written American rule in the Philippines. When Spain
Constitution ceded the Phils. to the US, the Spanish Political
laws were automatically displaced by those of the
F. Essential Parts of a Good Written US.4
Constitution
G. Permanency and Generality of
II. CONSTITUTION
constitutions
H. Interpretation/Construction of
Constitution A. Definition of Constitution
I. Brief Constitutional History
J. The 1987 Constitution Comprehensive Definition: That body of rules
and maxims in accordance with which the powers
III. Constitutional Law of sovereignty are habitually exercised.5 (Cooley)
A. Concept of Constitutional Law
B. Types of Constitutional Law American sense: A constitution is a written
instrument by which the fundamental powers of
IV. Basic Concepts government are established, limited, and defined
A. Constitutionalism and by which these powers are distributed among
B. Philippine Constitutionalism several departments, for their more safe and useful
C. Doctrine of Constitutional Supremacy exercise, for the benefit of the body politic. (Justice
D. Republicanism Miller quoted by Bernas)
E. Principle of Separation of Powers
F. System of Checks and Balances With particular reference to the Philippine
G. Judicial Review Constitution: That written instrument enacted by
H. Due Process direct action of the people by which the
fundamental powers of the government are
I. POLITICAL LAW established, limited and defined, and by which
those powers are distributed among several
A. Definition of Political Law
As thus conceived public law consists of political law, criminal law
and public international law. Private law includes civil and
Branch of public law1 which deals with the commercial law.
organization and operation of the governmental 2
Vicente Sinco, Philippine Political Law 1, 10th ed., 1954.
3
1 Vicente Sinco, Philippine Political Law 1, 10th ed., 1954.
Public law is understood as dealing with matters affecting the state, 4
the act of state agencies, the protection of state interests. Private law Vicente Sinco, Philippine Political Law 2, 10th ed., 1954.
5
deals with the regulation of the conduct of private individuals in their This definition is comprehensive enough to cover written and
relation with one another. unwritten constitutions. (Cruz, Constitutional Law)
I sweat, I bleed, I soar… 1

Service, Sacrifice, Excellence
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departments for their safe and useful exercise for Opinion in the case of Province of North Cotabato
the benefit of the body politic. (Malcolm, Philippine v. GRP
Constitutional Law, p. 6)
In other words: It is the supreme written law of C. Purpose of the Constitution

the land.6
To prescribe the permanent framework of a system
B. Philosophical View of the Constitution of government, to assign to the several
departments their respective powers and duties,
The Constitution is a social contract. (Marcos v. and to establish certain first principles on which the
Manglapus) government is founded.9 (11 Am. Jur. 606 cited in
Cruz)
Viewed in the light of the Social Contract Theories,
the Constitution may be considered as the Social Why would a society generally committed to
Contract itself in the sense that it is the very basis majority rule choose to be governed by a
of the decision to constitute a civil society or State, document that is difficult to change?
breathing life to its juridical existence, laying down a) To prevent tyranny of the majority
the framework by which it is to be governed, b) Society’s attempt to protect itself from
enumerating and limiting its powers and declaring itself.
certain fundamental rights and principles to be c) Protecting long term values from short
inviolable. term passions.10
The Constitution as a political document may be D. Constitution as a Municipal Law
considered as the concrete manifestation or
expression of the Social Contract or the decision to
A constitution is a municipal law. As such, it is
abandon the ‘state of nature’ and organize and
binding only within the territorial limits of the
found a civil society or State.
sovereignty promulgating the constitution.11
According to Dean Baustista, “the Constitution is a
E. Classification
social contract between the government and the
people, the governing and the governed.”7 (ASM: I A. (1) Rigid12
don’t necessarily agree with this statement. As a (2) Flexible
social contract, the Constitution, I think is a B. (1) Written13
contract between and among the people (2) Unwritten
themselves and not between the government and C. (1) Evolved14
the people. The government is only an “effect” or (2) Enacted
consequence of the social contract of the people. D. (1) Normative- adjusts to norms
In other words, the government is only a creature (2) Nominal –not yet fully operational
of the Constitution. Hence, the government cannot (3) Semantic-perpetuation of power
be a party to a contract that creates it. In the 1987 9
Philippine Constitution, it reads, “We the sovereign
10
Filipino people…in order to build a …society and Andres D. Bautista, Introduction to Constitutional Law 1, Slide 4
establish a government… ordain and promulgate June 16, 2007.
11
this Constitution.”) Bernas Commentary, p 5(2003 ed).
12
Rigid constitution is one that can be amended only by a
According to Dean Bautista, “the Constitution formal and usually difficult process; while a flexible
reflects majoritarian values but defends constitution is one that can be changed by ordinary
minoritarian rights.”8 legislation. (Cruz, Constitutional Law p 5)
13
A written constitution is one whose precepts are embodied
See Constitition as Compact of the People by in one document or set of documents; while an unwritten
Chief Justice Puno in his Separate Concurring constitution consists of rules which have not been integrated
into a single, concrete form but are scattered in various
sources, such as statues of a fundamental character, judicial
6 decisions, commentaries of publicists, customs and traditions,
See People v. Pomar, 46 Phil 440. Bernas Commentary xxxvii and certain common law principles. (Cruz, Constitutional Law
(2003 ed). pp 4-5)
7
Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3 14
An enacted or conventional constitution is enacted,
June 16, 2007. formally struck off at a definitive time and place following a
8
Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3 conscious or deliberate effort taken by a constituent body or
June 16, 2007.; Majoritarianism is a traditional political philosophy ruler; while a cumulative or evolved is the result of political
which asserts that a majority of the population is entitled to a certain evolution, not inaugurated at any specific time but changing by
degree of primacy in the society, and has the right to make decisions accretion rather than by systematic method. (Cruz,
that affect the society. Constitutional Law p 5)

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The Constitution of the Philippines is written, It has been said that the term ‘constitution’ implies
conventional and rigid. an instrument of a permanent nature.25
F. Qualities of good written constitution J. Brief Constitutional History

1. Broad 15 1. Malolos Constitution
2. The American Regime and the Organic Acts
2. Brief16 3. The 1935 Constitution
3. Definite17 4. The Japanese (Belligerent) Occupation
5. The 1973 Constitution
G. Essential parts of a good written constitution 6. The 1987 Constitution
1. Constitution of government18
K. The 1987 Constitution
2. Constitution of liberty19
3. Constitution of sovereignty20 The 1987 Constitution is the 4th fundamental law to
[Social and economic rights] govern the Philippines since it became
independent on July 4, 1946.
H. Interpretation/Construction of the Constitution21
Background of the 1987 Constitution
In Fransisco v HR, the SC made reference to the 1. Proclamation of the Freedom Constitution
use of well-settled principles of constitutional a. Procalamation No. 1, February 25, 1986,
construction, namely: announcing that she (Corazon Aquino) and
1. Verba Legis22 VP Laurel were assuming power.
b. Executive Order No.1, (Febrauary 28, 1986)
2. Ratio legis et anima23 c. Procalamation No.3, March 25, 1986,
3. Ut magis valeat quam pereat24 announced the promulgation of the
Provisional (Freedom) Constitution, pending
I. Permanence and Generality of constitutions the drafting and ratification of a new
Constitution. It adopted certain provisions in
A constitution differs from a statute, it is intended the 1973 Constitution, contained additional
not merely to meet existing conditions, but to articles on the executive department, on
govern the future. government reorganization, and on existing
laws. It also provided of the calling of a
Constitutional Commission to be composed
15 of 30-50 members to draft a new
Broad. Because it provides for the organization of the entire
government and covers all persons and things within the territory of
Constitution.
the State and also because it must be comprehensive enough to 2. Adoption of the Constitution
provide for every contingency. (Cruz, Constitutional Law pp 5-6) a. Proclamation No. 9, creating the
16
Brief. It must confine itself to basic principles to be implemented Constitutional Commission of 50
with legislative details more adjustable to change and easier to members.
amend. (Cruz, Constitutional Law pp 4-5) b. Approval of the draft Constitution by the
17
Definite. To prevent ambiguity in its provisions which could result Constitutional Commission on October 15,
in confusion and divisiveness among the people. (Cruz, 1986
Constitutional Law pp 4-5) c. Plebiscite held on February 2, 1987
18
Constitution of Government. The series of provisions outlining d. Proclamation No. 58, proclaiming the
the organization of the government, enumerating its powers, laying ratification of the Constitution.
down certain rules relative to its administration and defining the 3. Effectivity of the 1987 Constitution: February 2,
electorate. (ex. Art VI, VII, VIII and IX) 1987
19
Constitution of Liberty. The series of proscriptions setting forth
the fundamental civil and political rights of the citizens and imposing Features of 1987 Constitution26
limitations on the powers of government as a means of securing the
enjoyment of those rights. (Ex. Article III)
1. The new Constitution consists of 18
20 articles and is excessively long compared to
Constitution of Sovereignty. The provisions pointing out the
mode or procedure in accordance with which formal changes in the
the 1935 and 1973 constitutions.
fundamental law may be brought about. (Ex. Art XVII) 2. The independence of the judiciary
21
Antonio B. Nachura, Outline/Reviewer in Political Law (2006 has been strengthened with new provisions
ed.) for appointment thereto and an increase in
22
Plain meaning rule. Whenever possible the words used in the its authority, which now covers even political
Constitution must be given their ordinary meaning except when questions formerly beyond its jurisdiction.
technical terms are employed.
23
Interpretation according to spirit. The words of the Constitution
25
should be interpreted in accordance with the intent of the framers. Ruling Case Law, vol.6, p16)
24 26
The constitution has to be interpreted as a whole. Cruz, Political Law.

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3. The Bill of Rights of the should not be beguiled by foreign

Commonwealth and Marcos constitutions jurisprudence some of which are hardly
has been considerably improved in the 1987 applicable because they have been dictated by
Constitution and even bolstered with the different constitutional settings and needs."
creation of a Commission of Human Rights. Indeed, although the Philippine Constitution
can trace its origins to that of the United
III. CONSTITUTIONAL LAW States, their paths of development have long
since diverged. In the colorful words of Father
Bernas, "[w]e have cut the umbilical cord."”
A. Concept of Constitutional Law
(But see the case of Neri v. Senate Committees
Constitutional law is a body of rules resulting from where the Court cited many American cases)
the interpretation by a high court of cases in which
the validity, in relation to the constitutional IV. BASIC CONCEPTS
instrument, of some act of government…has been
challenged. (Bernas Commentary xxxviii) Constitutionalism
Philippine Constitutionalism
Constitutional law is a term used to designate the Doctrine of Constitutional Supremacy
law embodied in the constitution and the legal Republicanism
principles growing out of the interpretation and Principle of Separation of Powers
application made by courts of the constitution in System of Checks and Balances
specific cases. (Sinco, Phil. Political Law) Judicial Review
Due Process
Constitutional law is the study of the maintenance
of the proper balance between authority A. Constitutionalism
represented by the three inherent powers of the
State and liberty as guaranteed by the Bill of Constitutionalism refers to the position or practice
Rights. (Cruz, Constitutional Law) that government be limited by a constitution.
Constitutional law consist not only of the The doctrine or system of government in which the
constitution, but also of the cases decided by the governing power is limited by enforceable rules of
Supreme Court on constitutional grounds, i.e., law, and concentration of power is limited by
every case where the ratio decidendi is based on a various checks and balances so that the basic
constitutional provision. (Defensor-Santiago, rights of individuals and groups are protected.
Constitutional Law)
B. Philippine Constitutionalism
B. Types of Constitutional law27
1. English type28 Constitutionalism in the Philippines, understood in
2. European continental type29 the American sense, dates back to the ratification
3. American type30 of Treaty of Paris. Then it grew from a series of
organic documents. These are:
C. Weight of American Jurisprudence (1) Pres. Mc Kinleys’ Instruction to the
Second Phil. Commission,
In the case of Francisco v. HR, (2003) The Supreme (2) Phil. Bill of 1902,
Court speaking through Justice Carpio Morales opined: (3) Phil. Autonomy Act of 1916. (Bernas,
“American jurisprudence and authorities, much Commentary xxxviii)
less the American Constitution, are of dubious
application for these are no longer controlling C. Doctrine of Constitutional Supremacy (2004 Bar
within our jurisdiction and have only limited Exam Question)
persuasive merit insofar as Philippine
constitutional law is concerned. As held in If a law violates any norm of the constitution, that
the case of Garcia vs. COMELEC, "[i]n law is null and void; it has no effect. (This is an
resolving constitutional disputes, [this Court] overstatement, for a law held unconstitutional is
not always wholly a nullity)
27
28 The American case of Marbury v. Madison laid
Characterized by the absence of a written constitution.
29 down the classic statement on constitutional
There is a written constitution which gives the court no power to
supremacy” “It is a proposition too plain to be
declare ineffective statutes repugnant to it.
30 contested, that the Constitution controls any
Legal provisions of the written constitution are given effect
legislative act repugnant to it.”
through the power of the courts to declare ineffective or void
ordinary statutes repugnant to it.

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Constitutional supremacy produced judicial American sovereignty in the Philippines, the

review.31 principle was introduced as an inseparable feature
of the governmental system organized by the
D. Republicanism United States in this country.37
The essence of republicanism is representation Limitations on the Principle

and renovation, the selection by the citizenry of a 1. System of Checks and Balances
corps of public functionaries who derive their 2. Existence of overlapping powers38
mandate from the people and act on their behalf,
serving for a limited period only, after which they F. Checks and Balances
are replaced or retained at the option of their
principal.32 The Constitution fixes certain limits on the
(More discussion of Republicanism under Article II) independence of each department. In order that
these limits may be observed, the Constitution
E. Principle of Separation of Powers gives each department certain powers by which it
may definitely restrain the other from exceeding
Essence. In essence, separation of powers means their authority. A system of checks and balances is
that legislation belongs to Congress, execution to thus formed.39
the executive, settlement of legal controversies to
the judiciary. Each is prevented from invading the To carry out the system of checks and balances,
domain of others. (Bernas, Commentary 656, 2003 the Constitution provides:
ed.) 1. The acts of the legislative department
Division and Assignment. Its starting point is the have to be presented to the executive for
assumption of the division of the functions of the approval or disapproval.
government into three distinct classes—the 2. The executive department may veto
executive, the legislative and the judicial. Its the acts of the legislature if in its judgment
essence consists in the assignment of each class they are not in conformity with the
of functions to one of the three organs of Constitution or are detrimental to the
government.33 interests of the people.
3. The courts are authorized to
Theory. The theory is that “a power definitely determine the validity of legislative
assigned by the Constitution to one department measures or executive acts.
can neither be surrendered nor delegated by 4. Through its pardoning power, the
that department, nor vested by statute in another executive may modify or set aside the
department or agency.”34 judgments of the courts.
Reason. The underlying reason of this principle is

5. The legislature may pass laws that in
effect amend or completely revoke
the assumption that arbitrary rule and abuse of
decisions of the courts if in its judgment
authority would inevitably result from the
they are not in harmony with its intention
concentration of the three powers of government in
or policy which is not contrary to the
the same person, body of persons or organ.35
Constitution.40
6. President must obtain the
More specifically, according to Justice Laurel, the
concurrence of Congress to complete
doctrine of separation of powers is intended to:
certain significant acts.
1. Secure action
2. To forestall overaction 7. Money can be released from the
3. To prevent despotism treasury only by authority of Congress.41
4. To obtain efficiency36
G. Judicial Review
History. Separation of powers became the pith and
core of the American system of government largely
through the influence of the French political writer 37
US v. Bull, 15 Phil 7, 27.
Montesquieu. By the establishment of the 38
The power of appointment is one of these. Although this is
executive in nature, it may however be validly exercised by any of
31 the three departments in selecting its own subordinates precisely to
Defensor Santiago, Constitutional Law 7.
32 protect its independence. (Vicente Sinco, Philippine Political Law
Cruz, Political Law. 136, 10th ed., 1954).
33
Vicente Sinco, Philippine Political Law 131, 10th ed., 1954. 39
34
Williams v. US, 289 US 553 (1933). 40
Tarlac v. Gale, 26 Phil. 338 cited in Vicente Sinco, Philippine
35
Vicente Sinco, Philippine Political Law 131, 10th ed., 1954. Political Law 135, 10th ed., 1954.
36 41
Pangasinan Transportaion Co. v. PSC, 40 O.G., 8th Supp. 57. Bernas, Commentary 656, 2003 ed.

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Definition. Judicial review refers to the power of arbitrariness on the part of the government.
the courts to test the validity of governmental acts Observance of both substantive and procedural
in light of their conformity with a higher norm (e.g. rights is equally guaranteed by due process.48
the constitution). (More discussion of Due Process under Article III)
Expression of Constitutional Supremacy.

Judicial review is not an assertion of superiority by
the courts over the other departments, but merely
an expression of the supremacy of the
Constitution.42 Constitutional supremacy produced
judicial review, which in turn led to the accepted
role of the Court as “the ultimate interpreter of the
Constitution.”43
Judicial Review in Philippine Constitution.

Unlike the US Constitution44 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.
(More discussion of Judicial Review under Article
VIII)
H. Due Process
Origin: By the 39th chapter of the Magna Carta

wrung by the barons from King John, the despot
promised that “no man shall be taken, imprisoned
or disseized or outlawed, or in any manner
destroyed; nor shall we go upon him, nor send him,
but by the lawful judgment of his peers or by the
law of the land.”
In 1335, King Edward III’s Statute 28 declared that
“no man, of what state or condition whoever be,
shall be put out of his lands, or tenements, nor
taken, nor imprisoned, nor indicted, nor put to
death, without he be brought in to answer by due
process of law.” It is this immortal phrase that has
resounded through the centuries as the formidable
champion of life, liberty and property in all-freedom
loving lands. (Cruz)
Definition45: Embodiment of the sporting idea of

fair play.46 It is the responsiveness to the
supremacy of reason, obedience, to the dictates of
justice.47 Due process is a guaranty against
42
Angara v. Electoral Commission, 63 Phil 139.
43
See Cooper v. Aaron, 358 US 1 (1956)
44
The case of Marbury v. Madison established the doctrine of
judicial review as a core legal principle in American constitutional
system: “So if a law be in opposition to the constitution; of both the
law and the constitution apply to a particular case, so that the court
must either decide that case conformably to the law, disregarding the
constitution; or conformably to the constitution, disregarding the law;
the court must determine which of these conflicting rules governs the
case. This is the very essence of judicial duty.”
45
The idea that laws and legal proceedings must be fair. Due process
is best defined in one word- fairness.
46
Frankfurter, Mr. Justice Holmes and the Supreme Court pp
32-33
47 48
Ermita-Malate Hotel & Motors Association v. City of Manila (Tupas v. CA)

SCHOOL OF LAW
independence and democracy under the rule of law

and the regime of truth, justice, freedom, love,
PREAMBLE equality and peace.”
I. Meaning III. Social Contract Theory

II. Function
III. Social Contract Theory ASM: I submit that the Preamble is somehow a
manifestation of the Social Contract Theory as it
I. Meaning states: “We the sovereign Filipino people…in
order to build a…society and establish a
government… do ordain and promulgate this
Preamble means “to walk before.” (Praeambulus:
constitution.”
Walking in front)
II. Function
Function
Origin/Authorship
Scope and Purpose
A. Functions
1. It sets down the origin, scope and purpose of
the Constitution.49
2. It enumerates the primary aims and expresses
the aspirations of the framers in drafting the
Constitution.50
3. Useful as an aid in the construction and
interpretation of the text of the Constitution.51
Thus, Preamble is a source of light.52 It is not a

source of rights or obligations. (Jacobson v.
Massachusetts, 197 U.S. 11, 22 (1905).
B. Origin/Authorship
Its origin, or authorship, is the will of the “sovereign

Filipino people.”
The identification of the Filipino people as the

author of the constitution also calls attention to an
important principle: that the document is not just
the work of representatives of the people but of the
people themselves who put their mark of approval
by ratifying it in a plebiscite.53
C. Scope and Purpose
“To build a just and humane society as to establish

a government that shall embody our ideals and
aspirations, promote the common good, conserve
and develop our patrimony, and secure to
ourselves and our posterity the blessings of
49
Bernas Primer at 1 (2006 ed.)
50
Cruz, Philippine Political Law, p. 49 (1995 ed).
51
52
53
Bernas Commentary, p 4(2003 ed).

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o Exclusive Economic Zone/Patrimonial

Sea (200 N.mi from baseline)
o High seas (Waters beyond territorial
ARTICLE I: NATIONAL TERRITORY sea)
I. Territory C. Significance of Territory

II. Archipelago
III. Archipelagic Principle Control over territory is of the essence of a state
(Las Palmas case). Certain rights and authority are
I. Territory exercised within the state’s territory.
1. State’s sovereignty is over its:

A. What is Territory o Land territory (and airspace above it)
o Internal Waters (and airspace above it
Territory is the fixed portion of the surface of the and seabed under it)
earth inhabited by the people of the state.54 o Archipelagic Waters( and airspace
above it and seabed under it)
Territory as an element of a state means an area o Territorial Sea (and airspace above it
over which a state has effective control.55 and seabed under it)
2. The coastal state has a right against innocent
(Read Province of Cotabato v. GRP. October 14, passage57 in its internal waters.
2008) 3. The coastal state exercises authority over the
area (contiguous zone) to the extent necessary to
B. What does territory include? prevent infringement of customs, fiscal, immigration
or sanitation authority over its territorial waters or
Territory includes land, maritime areas, airspace territory and to punish such infringement.
and outer space.56 4. The coastal state has rights over the economic
resources of the sea, seabed and subsoil.
Airspace
o Each state has exclusive jurisdiction D. Scope of Philippine National Territory Defined in
over the air above its territory. Article I, Section 1.
o The consent for transit must be It includes:
obtained from the subject nation. (1) The Philippine archipelago;
o Aircrafts not engaged in international (2) All other territories over which the Philippines
air service, shall have the right to make has sovereignty or jurisdiction;
flights into or in transit non-stop across its (3) The territorial sea, seabed, subsoil, insular
territory and to make steps for non-traffic shelves and other submarine areas
purposes without the necessity of obtaining corresponding to (1) and (2). Moreover, (1)
prior permission and subject to the right of and (2) consist of terrestrial, fluvial and aerial
the State flown over to require landing. domains.58
(Chicago Convention on International Civil
Action) E. Territories Covered under the Definition of Article
1
Outerspace
o Sovereignty over airspace extends
1. Those ceded to the US by virtue of the Treaty
of Paris on December 10, 1898.
only until where outerspace begins. (50-100
miles from earth) 2. Those defined in the treaty concluded between
the US and Spain (Treaty of Washington) on
Different areas beyond the land territory November 7, 1990, which were not defined in
o Territorial Seas (12 N.mi from the Treaty of Paris, specifically the islands of
baseline) Cagayan, Sulu and Sibuto.
o Contiguous Zone (24 N.mi from 3. Those defined in the treaty concluded on
baseline) January 2, 1930, between the US and Great
Britain (Treaty with Great Britain), specifically
the Turtle and Mangsee islands.
54
55
Bernas, An Introduction to Public International Law, 97 (2002 57
ed). Passage that is not prejudicial to the peace, good order or
56 security of the coastal state.
Bernas, An Introduction to Public International Law, 97 (2002
58
ed). Bernas Primer at 4 (2006 ed.)

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4. The island of Batanes, which was covered C. Archipelagic Waters

under a general statement in the 1935
Constitution. According to UNCLOS, Archipelagic waters refers
5. Those contemplated in the phrase “belonging to areas enclosed as internal waters by using the
to the Philippines by historic right or legal title” baseline method which had not been previously
in the 1973 Constitution.59 considered as internal waters. (See Article 53 of
UNCLOS)
E. “All other territories which the Philippines has
sovereignty and jurisdiction.” Article 8(2) of UNCLOS: Where the
establishment of a straight baseline in
accordance with the method set forth in Article
This includes any territory which presently belongs 7 has the effect of enclosing as internal waters
or might in the future belong to the Philippines areas which had not previously been
through any of the internationally modes of considered as such, a right of innocent passage
acquiring territory. as provided in this Convention shall exist in
o Batanes islands those waters.
o Those belonging to the Philippines by
According to UNCLOS, in “archipelagic waters”, a
historic right or legal title (Sabah, the right of innocent passage shall exist in these
Marianas, Freedomland) waters. But, the Philippines made a reservation,
thus, “ The concept of archipelagic waters is similar
II. Archipelago to the concept of internal waters under the
Archipelago Constitution of the Philippines, and removes straits
Archipelagic State connecting these waters with the economic zone or
Archipelagic Waters high sea from the rights of foreign vessel to transit
Philippine Archipelago passage for international navigation.”
A. Archipelago Bernas: The reservation is ad cautelam. The claim

made in the Constitution took effect in 1973 before
the 1982 Law of the Sea Convention was
Archipelago is a body of water studded with
formulated. Article 8(2) of the Convention itself
islands.60
says that the new rule on archipelagic waters
applies only to “areas which had not previously
Q: Do you consider the Spratlys Group of Islands
been considered as” internal waters.61
as part of Philippine Archipelago?
A: No. It is far from the three main islands of the
D. Philippine Archipelago
Philippines and it is not covered by what was
ceded in the Treaty of Paris.
The Philippine archipelago is that body of water
Q: Do you consider the Spratlys group of Islands studded with islands which is delineated in the
as part of the National Territory? Treaty of Paris, modified by the Treaty of
A: Yes. Under the 2nd phrase, “…and all other Washington and the Treaty of Great Britain.
territories over which the Philippines has
sovereignty and jurisdiction…” Basis: Discovery of III. Archipelagic Principle
Tomas Cloma in the 1950s. Cloma waived his Archipelagic Doctrine
rights over the islands in favor of the Philippine Archipelago Doctrine of Article I
government. Philippine troops then occupied the Elements of Archipelagic Doctrine
islands. Marcos issued PD 1956 constituting Purpose of Archipelagic Doctrine
Spratllys islands as a regular municipality
(Municipality of Kalayaan) under the Province of A. Archipelagic Doctrine
Palawan. In May 20, 1980, the Philippines
(1989 Bar Question)
registered its claim with the UN Secretariat.
It is the principle whereby the body of water
B. Archipelagic State
studded with islands, or the islands surrounded
with water, is viewed as a unity of islands and
Archipelagic state means a state constituted wholly waters together forming one integrated unit. For
by one or more archipelagos and may include this purpose, it requires that baselines be drawn by
other islands. (Article 46 (a) of UNCLOS) connecting the appropriate points of the “outermost
islands to encircle the islands within the
59
60 61
Bernas Primer at 4 (2006 ed.) Bernas Commentary, p 28(2003 ed).

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archipelago. We consider all the waters enclosed baselines of a state and over which the state has
by the straight baselines as internal waters.62 sovereignty. (Article 2, 3 of UNCLOS)
B. Elements of Archipelagic Doctrine Internal waters refer to “all waters landwards from
the baseline of the territory.” Is from which the
1. Definition of internal waters 63
breadth of territorial sea is calculated. (Brownlie,
2. The straight line method of delineating the Principles of PIL) No right of innocent passage for
territorial sea. foreign vessels exist in the case of internal waters.
(Harris, Cases and Material on International Law,
Straight Baseline Method- drawn connecting 5th ed., 1998, p.407)
selected points on the coast without departing to
any appreciable extent from the general direction Under Section 1, Article I of the 1987 Constitution,
of the coast. RA 3046 and RA 5446 have drawn the internal waters of the Philippines consist of the
straight baselines around the Philippines. waters around between and connecting the islands
of the Philippine archipelago regardless of their
(The problem with the straight baseline method is breadth and dimensions including the waters in
that it conflicts with the Law of the Sea because it bays, rivers, and lakes.
recognizes the right of innocent passage in
archipelagic waters. That is why we made a Q: Distinguish briefly but clearly between the
reservation. However, as Bernas pointed out, the contiguous zone and the exclusive economic
reservation is ad cautelam) zone. (2004 Bar Question)
C. Purposes of Archipelagic Doctrine Contiguous zone is a zone contiguous to the
1. Territorial Integrity territorial sea and extends up to twelve nautical
2. National Security miles from the territorial sea and over which the
3. Economic reasons coastal state may exercise control necessary to
prevent infringement of its customs, fiscal,
It is said that the purpose of archipelagic doctrine is immigration or sanitary laws and regulations within
to protect the territorial integrity of the archipelago. its territory or territorial sea. (Article 33 of the
Without it, there would be “pockets of high seas” Convention on the Law of the Sea.)
between some of our islands and islets, thus
foreign vessels would be able to pass through The EEZ extends 200 nautical miles from the
these “pockets of seas” and would have no baseline. The EEZ is recognized in the UN
jurisdiction over them. Convention on the Law of the Sea. Although it is
not part of the national territory, exclusive
economic benefit is reserved for the country within
D. Archipelago Doctrine in Article I, Section 1
the zone.
(1989 Bar Question)
“The waters around, between and connecting the By virtue of PD 1599, the Philippine declares that it
islands of the archipelago, regardless of their has sovereign rights to explore, exploit, conserve
breadth and dimensions, form part of internal and manage the natural resources of the seabed,
waters of the Philippines” subsoil, and superjacent waters. Other states are
prohibited from using the zone except for
Q: Differentiate archipelagic waters, territorial navigation and overflight, laying of submarine
sea and internal waters. (2004 Bar Question) cables and pipeline, and other lawful uses related
A: to navigation and communication.
Q: Distinguish the flag state and the flag of
According to UNCLOS, Archipelagic waters refers
convenience. (2004 Bar Question)
to areas enclosed as internal waters by using the
baseline method which had not been previously Flag state means a ship has the nationality of the
considered as internal waters. (See Article 53 of flag of the state it flies, but there must be a genuine
UNCLOS) link between the state and the ship. (Article 91 of
the Convention on the Law of the Sea)
Territorial sea is an adjacent belt of sea with a
breadth of 12 nautical miles measured from the Flag of convenience refers to a state with which a
vessel is registered for various reasons such as
low or non-existent taxation or low operating costs
62 although the ship has no genuine link with the
63
state. (Harris, Cases and Materials on International
Internal waters refer to “all waters landwards from the Law, 5th ed., 1998, p. 425.)
baseline of the territory.”
Note: The Philippines considers all waters connecting the
islands as internal waters.

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XXIX. Full Public Disclosure (§28)

ARTICLE II I. Principles and State Policies
DECLARATION OF PRINCIPLES AND
STATE POLICIES A. Description
I. Principles and State Policies This portion of the Constitution (Article II) might be
II. State as a Legal Concept called the basic political creed of the nation.64
PRINCIPLES
By its very title, Article II of the Constitution is a
III. Republicanism (§ 1)
declaration of principles and state policies. x x
IV. Incorporation Clause (§2) x.These principles in Article II are not intended to
V. Supremacy of Civilian be self-executing principles ready for enforcement
Authority(§3) through the courts. They are used by the judiciary
as aids or as guides in the exercise of its power of
VI. Defense of State (§4)
judicial review, and by the legislature in its
VII. Peace and Order(§5) enactment of laws. (Tanada v. Angara cited in
VIII. Separation of Church and Tondo Medical Center Employees Association v.
State (§6) CA, July 17, 2007)
STATE POLICIES
B. Function of the “Declaration of Principles and
IX. Independent Foreign
State Policies” in the Constitution
Policy(§7)
X. Freedom from Nuclear It is the statement of the basic ideological principles
Weapons(§8) and policies that underlie the Constitution. As such,
XI. Just and Dynamic Social the provisions shed light on the meaning of the
Order (§9) other provisions of the Constitution and they are a
XII. Promotion of Social Justice guide for all departments of the government in
the implementation of the Constitution.65
(§10)
XIII. Respect for Human C. What are Principles? What are Policies?
Dignity(§11)
XIV. Family, Rearing the Youth Principles are binding rules which must be
(§§ 12-13) observed in the conduct of the government.66
XV. Women(§14)
Policies are guidelines for the orientation of the
XVI. Health (§15) state.67
XVII. Balanced and healthful
Ecology(§-16) Note: The distinction between principles and
XVIII. Education, Science and polices is of little significance because not all of the
Technology(§17) six “principles” are self-executory and some of the
“policies” already anchor justiciable rights.68
XIX. Labor(§18) o Section 5 (maintenance of peace and
XX. Economy(§19) order…promotion of general werlfare…) is a
XXI. Private Sector and Private mere guideline.
Enterprise (§20) o (Section 16 (right of the people to a
XXII. Comprehensive Rural balanced and healthful ecology is right-
Development (§21) conferring provisions. (Oposa vs. Factoran)
o Section 28 is self-executory (Province
XXIII. Indigenous Cultural
of North Cotabato v. GRP)
Communities (§22)
XXIV. Sectoral Organizations (§23) 64
See Tanada v. Angara. See Vicente Sinco, Philippine Political Law
116 (11th ed., 1962).
XXV. Communication and 65
Information (§24) Bernas Primer at 7(2006 ed.)
66
XXVI. Local Autonomy (§25) See IV RECORD OF THE CONSTITUTIONAL COMMISSION
768 and 580.
XXVII. Equal Access to 67
See IV RECORD OF THE CONSTITUTIONAL COMMISSION
Opportunities (§26) 768 and 580.
XXVIII. Public Service (§27) 68

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Territory as an element of a state means an area

Section 1. The Philippines is a over which a state has effective control.76
democratic and republican State.
Sovereignty resides in the people and Read Province of North Cotabato v.
all government authority emanates Government of the Republic of the Philippines
from them.
3. Sovereignty
II. State as a Legal Concept Definition
Kinds
Definition of a State Characteristics
Elements of a State Effects of Belligerent Occupation
Government Effects of Change in Sovereignty
Acts of State Dominium v. Imperium
State Immunity Jurisdiction
“Sovereignty resides in the people”
A. Definition of a State
a. Sovereignty
A state refers to a community of persons, more or
less numerous, permanently occupying a definite The supreme and uncontrollable power inherent in
portion of territory, independent of external control, a State by which that State is governed.77
and possessing an organized government to which
the great body of inhabitants render habitual In auto-limitation terms: It is the property of a State-
obedience.69 force due to which it has the exclusive capacity of
legal determination and restriction.
B. Elements of a State
1. People b. Kinds:
2. Territory 1. Legal
3. Sovereignty 2. Political
4. Government 3. Internal
4. External
1. People
A community of persons sufficient in number and Legal Sovereignty.
capable of maintaining the continued existence of Cruz: Legal sovereignty is the authority which
the community and held together by a common has the power to issue final commands. In our
bond of law.70 country, the Congress is the legal sovereign.78
Different Meanings of “People” as used in the Bernas: Legal sovereignty is the supreme
Constitution: power to affect legal interests either by
legislative, executive or judicial action. This is
1. Inhabitants71 lodged in the people but is normally exercised
2. Electors72 by state agencies79
3. Citizens73
(Bernas: Political writers distinguish between
4. Sovereign. The people organized legal sovereignty and political sovereignty.
collectively as a legal association is the The former is described as the supreme power
state which sovereignty resides.74 to make laws and the latter as the sum total of
all influences in a state, legal or non-legal,
2. Territory
Territory is the fixed portion of the surface of the 76
Bernas, An Introduction to Public International Law, 97 (2002
earth inhabited by the people of the state.75 ed).
77
Garner cited in Cruz, Philippine Political Law, p. 26 (1995 ed).
78
69 Cruz, Philippine Political Law, p. 26 (1995 ed).
Bernas Commentary, p 39 (2003 ed). 79
70 Bernas Primer at 8 (2006 ed.); Section 1 of Article II says:
Bernas Commentary, p 40 (2003 ed).
71 “Sovereignty resides in the people an all government authority
Article II, Section 15, 16; Article III, Section 2; Article XIII, emanates from them.” Sovereignty in this sentence therefore can be
Section 1. understood as the source of ultimate legal authority. Since the
72
Article VII, Section 4; Article XVI, Section 2; Article XVIII, ultimate law in the Philippine system is the constitution, sovereignty,
Section 25) understood as legal sovereignty, means the power to adapt or alter a
73 constitution. This power resides in the “people” understood as those
Article II, Section 4; Article III, Section 7.
74 who have a direct hand in the formulation, adoption, and amendment
Preamble; Article II, Section 1.
75
or alteration of the Constitution. (Bernas Commentary, p 55 (2003
Cruz, Philippine Political Law, p. 16 (1995 ed). ed).

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which determine the course of law. Sinco As for judicial decisions. As for judicial decisions
prefers not to make the distinction and places the same are valid during the occupation and even
legal sovereignty in the state itself considered beyond except those of a political complexion,
as a juridical person.) which are automatically annulled upon the
restoration of the legitimate authority.82
Political Sovereignty
Sum total of all the influences of a State, legal e. Effects of Change in Sovereignty
and non-legal which determine the course of
law. As to political laws. Where there is a change in
sovereignty, the political laws of the former
Internal Sovereignty sovereign are not merely suspended but
It refers to the power of the State to control its abrogated unless they are retained or re-enacted
domestic affairs. It is the supreme power over by positive act of the new sovereign.
everything within its territory.
As to non-political laws. Non-political laws,
External Sovereignty continue in operation.
Also known as Independence, which is
freedom from external control. It is the power f. Imperium v. Dominium
of State to direct its relations with other
States.80 Imperium. State’s authority to govern. Covers such
activities as passing laws, governing territory,
c. Characteristics of Sovereignty maintaining peace and order over it, and defending
against foreign invasion. This is the authority
It is permanent, exclusive, comprehensive, possessed by the State embraced in the concept of
absolute, indivisible, inalienable, and sovereignty.
imprescriptible.81
Dominium. Capacity of the State to own property.
But wait, in the case of Tanada v. Angara, it was Covers such rights as title to land, exploitation and
held that sovereignty of a state cannot be use of it, and disposition or sale of the same.
absolute. It is subject to limitations imposed by
membership in the family of nations and limitations g. Jurisdiction
imposed by treaties. The Constitution did not
envision a hermit-type isolation of the country from Jurisdiction is the manifestation of sovereignty. The
the rest of the world. (2000 Bar Question) jurisdiction of the state is understood as both its
authority and the sphere of the exercise of that
(Read Province of Cotabato v. GRP. October 14, authority.
2008)
Kinds of Jurisdiction:
d. Effects of Belligerent Occupation 1. Territorial jurisdiction- authority of the
state to have all persons and things within
As to political laws. No change of sovereignty its territorial limits to be completely subject
during a belligerent occupation, the political laws of to its control and protection.83
the occupied territory are merely suspended,
subject to revival under the jus postliminium upon 2. Personal jurisdiction- authority of the
the end of the occupation. state over its nationals, their persons,
property, and acts whether within or
Note that the rule suspending political laws affects outside its territory (e.g. Art. 15,CC)
only the civilian inhabitants of the occupied
territory and is not intended to bind the enemies in 82
Cruz, Philippine Political Law, p. 28 (1995 ed
arms. Also, the rule does not apply to the law on 83
treason although decidedly political in character. Exempt are:
1. Foreign states, heads of state, diplomatic representatives,
As to non-political laws. The non-political laws and consuls to a certain degree;
2. Foreign state property, including embassies, consulates,
are deemed continued unless changed by the
and public vessels engaged in non-commercial activities;
belligerent occupant since they are intended to 3. Acts of state;
govern the relations of individuals as among 4. Foreign merchant vessels exercising the rights of innocent
themselves and are not generally affected by passage or involuntary entry, such as the arrival under
changes in regimes of rulers. stress;
5. Foreign armies passing through or stationed in its territory
with its permission;
80 6. Such other persons or property, including organizations
Cruz, Philippine Political Law, p. 26 (1995 ed). like the United Nations, over which it may, by agreement,
81
Laurel v. Misa, 77 Phil 856. waive jurisdiction.

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3. Extra-territorial jurisdiction- authority of C Government

the State over persons, things, or acts,
outside its territorial limits by reason of 1. Government of the Republic of the
their effect to its territory. Philippines
Examples: The Government of the Republic of the Philippines
1. Assertion of its personal jurisdiction over is a term which refers to the corporate
its nationals abroad; or the exercise of its governmental entity through which the functions
rights to punish certain offenses of government are exercised throughout the
committed outside its territory against its Philippine Islands, including, save as the contrary
national interests even if the offenders are
non-resident aliens;
appears from context, the various arms through
2. By virtue of its relations with other states which political authority is made effective in said
or territories, as when it establishers a Islands, whether pertaining to the central
colonial protectorate, or a condominium, Government or to the provincial or municipal
or administers a trust territory, or occupies branches or other form of local government.
enemy territory in the course of war; (Section 2 of the Revised Administrative Code
3. When the local state waives its jurisdiction (1917).
over persons and things within its territory, On the national scale, the term “government of the
as when a foreign army stationed therein
remains under the jurisdiction of the
Philippines” refers to the three great departments.
sending states; On the local level, it means the regional provincial,
4. by the principle of extra territoriality, as city municipal an barangay governments.
illustrated by the immunities of the head of It does not include government entities which are
state in a foreign country; given a corporate personality separate and distinct
5. Through the enjoyment or easements or for the government and which are governed by the
servitudes, such as the easement of corporation law.
innocent passage or arrival under stress;
6. The exercise of jurisdiction by the state in
the high seas over its vessels; over
2. Government v. Administration
pirates; in the exercise of the right to visit
and search; and under the doctrine of hot Government is the institution through which the
pursuit; state exercises power. Administration consists of
7. The exercise of limited jurisdiction over the set of people currently running the institution.87
the contiguous zone and the patrimonial
sea, to prevent infringement of its
3. Functions of Government
customs, fiscal, immigration or sanitary
regulations. (1) Governmental (Constituent)- are the
compulsory functions which constitute the very
h. Juristic Theory of Sovereignty bonds of society.
(2) Proprietary (Ministerial)—optional functions of
The legalistic and analytical view of sovereignty
the government for achieving a better life for
considers the state as a corporate entity, a
the community. (Bacani v. NACOCO)
juridical person.84 It takes the state purely as a
legal organism. It does not have anything to do at
Governmental Function
all with its social and historical background.
• Implementation of the land reform may not strictly be
i. “Sovereignty resides in the PEOPLE” “constituent” in the sense of Bacani but the
compelling urgency with which the Constitution
speaks of social justice does not leave any doubt that
The “people” in the sense in which it is used here
land reform is not an optional but a compulsory
refers to the entire citizenry considered as a function of sovereignty. (ACCFA v. CUGCO)
unit.85 • The functions of the Veterans Federation of the
Philippines fall within the category of sovereign
4. Government functions. (Veterans Federation of the Phils. V. Reyes
Government. That institution or aggregate of 483 SCRA 526)
institutions by which an independent society makes • The Manila International Airport Authority is a
and carries out those rules of action which are governmental instrumentality vested with corporate
powers to perform its governmental function. It
necessary to enable men to live in a social state, or
performs government functions essential to the
which are impose upon the people forming that operation of an international airport. (MIAA v. CA)
society by those who possess the power or • Housing is a governmental function since housing is
authority of prescribing them.86 considered an essential service. (PHHC v. CIR)
86
US v. Dorr, 2 Phil 332 cited in Bacani v. NACOCO, 100 Phil. 468
84 (1956).
Sinco, Philippine Political Law, p 18 (1954ed).
85 87
Sinco, Philippine Political Law, p 19 (1954ed). Bernas Commentary, p 44(2003 ed).

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• The NHA is tasked with implementing the government by the inhabitants of a

governmental program of providing mass housing to country who rise in insurrection against
meet the needs of Filipinos for decent housing. The the parent state (Such as the government
NHA is exempt from paying docket fees in suits in of the Southern Confederacy in revolt
relation to its governmental functions. (Badillo v.
Tayag)
against the Union during the war of
secession in the United States.)
• The (RCA) Rice and Corn Administration is a 3. Government of paramount force.
government machinery to carry out declared That which is established and maintained
government policy to stabilize the price of palay, rice,
and corn and making it within the reach of average
by military forces who invade and occupy
consumers. Its activity of buying and selling corn is a territory of enemy in the course of war. 92
only an incident to its government function. Hence, (Such as the cases of Castine in Maine,
it is exempt from posting an appeal bond. (Republic which was reduced to a British possession
v. CFI) in the war of 1812, and Tampico, Mexico,
• The “AFP Retirement and Benefits System” is a occupied during the war with Mexico by
government entity and its funds are in the nature of the troops of the US.) (Co Kim Chan v.
public funds (People v. Sandiganbayan) Valdez , 75 Phil 113)
Proprietary Function
• Undertaking to supply water for a price is considered Note:
a trade and not a governmental activity. (Spouses
The government under Cory Aquino and the
Fontanilla v. Maliaman)
Freedom Constitution is a de jure government.
• Civil Aeronautics Administration is in charge of the It was established by authority of the legitimate
administration of MIA, it is performing proprietary sovereign, the people. It was a revolutionary
functions, hence it can be sued even when the claim government established in defiance of the
is based on a quasi-delict. (CAA v. CA) 1973 Constitution. (In Re Letter of Associate
Justice Puno, 210 SCRA 589 (1992).
4. Doctrine of Parens Patriae
Literally, “parent of the people.” One of the The government under President Gloria
important tasks of the government is to act for the Macapagal Arroyo established after the ouster
State as parens patriae, or guardian of the rights of of President Estrada is de jure government.93
the people.88
Sinco on Revolution or Direct State Action:
5. Classification of Government on the Basis of “It sometimes happens that the people rise in
Legitimacy revolt against the existing administration
1. De Jure Government [government] and through force or threats
2. De Facto Government succeed in altering the constituted organs of
the government. From the point of view of the
De Jure Government. One established by
92
authority of the legitimate sovereign.89 It has been held that the Second Republic of the Philippines was a
de facto government of paramount force, having been established by
De Facto Government. One established in the Japanese belligerent during the occupation of the Philippines in
defiance of the legitimate sovereign.90 It actually World War II.
exercises power or control without legal title.91 The characteristics of this kind of de facto government are:
1. Its existence is maintained by active military power
within the territories, and against the rightful authority of
3 Kinds of De Facto Government: an established and lawful government.
1. The government that gets 2. During its existence, it must necessarily be obeyed in civil
possession and control or, or usurps, matters by private citizens who, by acts of obedience
by force or by the voice of majority, the rendered in submission to such force, do not become
rightful legal government and maintains responsible, as wrongdoers, for those acts, though not
itself against the will of the latter. (Such as warranted by the laws of the rightful government. Actual
the government of England under the governments of this sort are established over districts
Commonwealth, first by Parliament and differing greatly in extent and conditions. They are
usually administered by military authority, supported
later by Cromwell as Protector.) more or less directly by military force. (Co Kim Chan v.
2. Established and maintained by Valdez , 75 Phil 113)
invading military forces. That By contrast, the Supreme Court unanimously held in Lawyers
established as an independent League for a Better Philippines v. Corazon Aquino that “the
people have made the judgment; they have accepted the
88
government of President Corazon Aquino which is in effective
Cruz, Philippine Political Law, p. 23 (1995 ed). control of the entire country so that it is not merely a de facto
89 government but in fact and law a de jure government.
90
Moreover, the community of nations has recognized the
Bernas Primer at 9 (2006 ed.) legitimacy of the present government.”
91 93
Cruz, Philippine Political Law, p. 23 (1995 ed). Bernas Primer at 9 (2006 ed.)

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existing constitutional plan, that act is illegal; An act of State is done by the sovereign power of a
but considered from the point of view of the country, or by its delegate, within the limits of the
sate as a distinct entity not necessarily bound power vested in him.98
to employ a particular government or
administration to carry out its will, it is the Within particular reference to Political Law, an act
direct act of the state itself because it is of State is an act done by the political departments
successful. As such, it is legal, for whatever is of the government and not subject to judicial
attributable to the state is lawful. This is the review. An illustration is the decision of the
legal and political basis of the doctrine of President, in the exercise of his diplomatic power,
revolution.”94 to extend recognition to a newly-established
foreign State or government.99
5. Presidential v. Parliamentary form of
government (2006 Bar Exam Question) D. State Immunity
The presidential form of government’s identifying “The State cannot be sued without its consent.”
feature is what is called the “separation of (Article XVI, Section 3)
powers.”95
(State immunity will be discussed under Article XVI,
The essential characteristics of a parliamentary Section 3)
form of government are:
1. The members of the government or
cabinet or the executive arm are, as a
rule, simultaneously members of the
legislature;
2. The government or cabinet consisting of
the political leaders of the majority party or
of a coalition who are also members of the
legislature, is in effect a committee of the
legislature;
3. The government or cabinet has a
pyramidal structure at the apex of which is
the Prime Minister or his equivalent;
4. The government or cabinet remains in
power only for so long as it enjoys the
support of the majority of the legislature; PRINCIPLES
5. Both government and legislature are
possessed of control devices which each III. Republicanism
can demand of the other immediate
political responsibility. In the hands of the
legislature is the vote of non-confidence Section 1. The Philippines is a
(censure) whereby government may be democratic and republican State.
ousted. In the hands of the government is Sovereignty resides in the people and
the power to dissolve the legislature and all government authority emanates
call for new elections.96 from them.
Q: What constitutional forms of government A. Republic

have been experienced by the Philippines
since 1935? Republic is a representative government run by
A: Presidential and presidential only.97 the people and for the people.100
C. Acts of State Republican state is a state wherein all

government authority emanates from the people
and is exercised by representatives chosen by the
people.101
94
Sinco, Philippine Political Law, p 7 (1954ed). 98
95 99
Bernas Primer at 10 (2006 ed.) Cruz, Philippine Political Law, p. 29 (1995 ed).
96 100
97 101
Bernas Primer at 11 (2006 ed.) Bernas Primer at 11 (2006 ed.)

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B. Essential Features of Republicanism

A. Renunciation of War
The essence of republicanism is representation
and renovation. The citizenry selects a corps of “The Philippines renounces war as an instrument of
public functionaries who derive their mandate from national policy…”
the people and act on their behalf, serving for a (Read along Preamble, Article II Secs. 7 &8; Article
limited period only, after which they are replaced or XVIII Sec. 25)
retained at the option of their principal.102
1. Aggressive War
C. Manifestations of Republicanism The Philippines only renounces AGGRESSIVE war
1. Ours is a government of laws and not of men. as an instrument of national policy. It does not
(Villavicencio v. Lukban, 39 Phil 778) renounce defensive war.
2. Rule of Majority (Plurality in elections)
3. Accountability of public officials 2. Philippines Renounces Not Only War
4. Bill of Rights As member of United Nations, the Philippines does
5. Legislature cannot pass irrepealable laws not merely renounce war but adheres to Article 2(4)
6. Separation of powers of the UN charter which says: “ All Members shall
refrain in their international relations from the
D. “Democratic State” threat or use of force against the territorial
integrity or political independence of any state, or
In the view of the new Constitution, the Philippines in any other manner inconsistent with Purposes of
is not only a representative or republican state but the Untied Nations.”
also shares some aspects of direct democracy
such as “initiative and referendum”. The word 3. Historical Development of the Policy
democratic is also a monument to the February Condemning or Outlawing War in the
Revolution which re-won freedom through direct International Scene:
action of the people. 1. Covenant of the League of Nations-
provided conditions for the right to go to war.
E. Constitutional Authoritarianism 2. Kellogg-Briand Pact of 1928- also
known as the General Treaty for the
Constitutional authoritarianism as understood and Renunciation of War, ratified by 62 states,
practiced in the Marcos regime under the 1973 which forbade war as “an instrument of
Constitution, was the assumption of extraordinary national policy.”
powers by the President, including legislative and
judicial and even constituent powers.103 3. Charter of the United Nations- Prohibits
the threat or use of force against the territorial
Q: Is constitutional authoritarianism compatible integrity or political independence of a State.
with a republican state?
A: Yes if the Constitution upon which the Executive B. Incorporation Clause
bases his assumption of power is a legitimate
expression of the people’s will and if the Executive “The Philippines…adopts the generally accepted
who assumes power received his office through a principles of international law as part of law of the
valid election by the people.104 land…”
IV. Renunciation of War/ Incorporation Clause/ 1. Acceptance of Dualist View

Policy of PEJ-FCA with All Nations Implicit in this provision is the acceptance of the
dualist view of legal systems, namely that
domestic law is distinct from international law.
Section 2. The Philippines renounces Since dualism holds that international law and
war as an instrument of national municipal law belong to different spheres,
policy, adopts the generally accepted international law becomes part of municipal law
principles of international law as part only if it is incorporated in to municipal law.105
of law of the land and adheres to the
policy of peace, equality, justice, 2 Doctrine of Incorporation (1997 Bar Question)
freedom, cooperation, and amity with Every state is, by reason of its membership in the
all nations. family of nations, bound by the generally
accepted principles of international law, which
102
103
104 105
Bernas Primer at 12 (2006 ed.) Bernas Commentary, p 61 (2003 ed).

SCHOOL OF LAW
are considered to be automatically part of its Still, it was felt advisable to expressly affirm this
own laws. This is the doctrine of incorporation.106 principle in the Constitution to allay all fears of a
military take-over of our civilian government.111
3. International Law
International Law It was also fittingly declared that the President, who
Traditional definition: It is a body of rules and is a civilian official, shall be the commander-in-chief
principles of action which are binding upon civilized of all the armed forces of the Philippines.112
states in their relation to one another.
Restatement: The law which deals with the conduct Q: Does this mean that civilian officials are superior
of states and of international organizations and to military officials?
with their relations inter se, as well as with some A: Civilian officials are superior to military official
other relations with persons, natural or juridical. only when a law makes them so.113
4. To What Elements of International Law does B. Armed Forces of the Philippines

the principle of incorporation apply?
Since treaties become part of Philippine law only 1. Reasons [in the constitution] for the
by ratification, the principle of incorporation applies existence of the armed forces
only to customary law and to treaties which (1) As protector of the people and the State
have become part of customary law. 107
(2) To secure the sovereignty of the State and the
5. Effect of Incorporation Clause integrity of the national territory.114
International law therefore can be used by (3) They may be called to prevent or suppress
Philippine courts to settle domestic disputes in lawless violence, invasion or rebellion.115
much the same way that they would use the Civil (4) All Members of the armed forces shall take an
Code or the Penal Code and other laws passed by oath or affirmation to uphold and defend the
Congress.108 Constitution.116
C. Policy of PEJ-FCA with All Nations 2. Composition

“The Philippines…adheres to the policy of peace, The Armed Forces of the Philippines shall be
equality, justice, freedom, cooperation, and amity composed of a citizen armed force which shall
with all nations.” undergo military training and serve as may be
provided by law. (Article XVI, Section 4)
Q: Does the affirmation of amity will all nations
mean automatic diplomatic recognition of all 3. On Politics
nations?
A: No. Amity with all nations is an ideal to be aimed The armed forces shall be insulated from partisan
at. Diplomatic recognition, however, remains a politics. No member of the military shall engage
matter of executive discretion.109 directly or indirectly in any partisan political activity,
except to vote. (Article XVI, Section 5)
V. Supremacy of Civilian Authority
Q: Is the provision an assertion of the political
role of the military?
Section 3. Civilian Authority is, at all
A: No. The phrase “protector of the people”
times supreme over the military. The
was not meant to be an assertion of the
Armed Forces of the Philippines is
political role of the military. The intent of the
the protector of the people and the
phrase “protector of the people” was rather to
State. Its goal is to secure the
make it as corrective to military abuses
sovereignty of the State and integrity
experienced during martial rule.117
of the national territory.
A. Civilian Authority
That civilian authority is at all times supreme over

111
the military is implicit in a republican system.110 Cruz, Philippine Political Law, p. 67 (1995 ed).
112
Article VII, Section 18.
106
Cruz, Philippine Political Law, p. 55 (1995 ed). 113
107
Article II, Section 3.
108
Article VII, Section 18. See IBP v. Zamora.
109 116
Bernas Primer at 13 (2006 ed.) Article XVI, Seciton 5.
110 117
Cruz, Philippine Political Law, p. 67 (1995 ed). Bernas Commentary, p 66 (2003 ed).

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Q: Does this mean that the military has no Section 6. The separation of Church
political role? and State shall be inviolable.
A: Bernas: The military exercise of political
power can be justified as a last resort—when A. Rationale
civilian authority has lost its legitimacy.118
(This is dangerous.) “Strong fences make good neighbors.” The idea is to
delineate boundaries between the two institutions and
4 . Bar Question (2003) thus avoid encroachments by one against the other
Q: Is the PNP covered by the same mandate under because of a misunderstanding of the limits of their
Article II, Section 3? respective exclusive jurisdictions.119
A: No. This provision is specifically addressed to
the AFP and not to the PNP, because the latter is B. Who is Prohibited from Interfering
separate and distinct from the former. (Record of
the Constitutional Commission, Volume V, p. 296; Doctrine cuts both ways. It is not only the State that is
Manalo v. Sistoza, 312 SCRA 239) prohibited from interfering in purely ecclesiastical
affairs; the Church is likewise barred from meddling in
VI. Defense of State purely secular matters. 120(Cruz)
C. Separation of Church and State is Reinforced by:

Section 4. The prime duty of the
government is to serve and protect 1. Freedom of Religion Clause (Article III, Section
the people. The Government may call 5)
upon the people to defend the state 2. Religious sect cannot be registered as a
and, in the fulfillment thereof, all political party (Article IX-C, Section 2(5))
citizens may be required, under 3. No sectoral representatives from the religious
conditions provided by law, to render sector. (Article VI, Section 5 (2))
personal military or civil service. 4. Prohibition against appropriation against
sectarian benefit. (Article VI, 29(2)).
VII. Peace and Order D. Exceptions

1. Churches, parsonages, etc. actually, directly
and exclusively used for religious purposes
Section 5. The maintenance of
shall be exempt from taxation. (Article VI,
peace and order, the protection of
Section 28(3)).
life, liberty and property, and the
2. When priest, preacher, minister or dignitary is
promotion of general welfare are
assigned to the armed forces, or any penal
essential for the enjoyment by all the
institution or government orphanage or
people of the blessings of democracy.
leprosarium, public money may be paid to
them. (Article VI, Section 29(2))
Section 5 is not a self-executing provision. It is 3. Optional religious instruction for public
merely a guideline for legislation. (Kilosbayan v. elementary and high school students. (Article
Morato) XIV, Section 3(3)).
4. Filipino ownership requirement for education
Right to bear arms. The right to bear arms is a institutions, except those established by
statutory, not a constitutional right. The license to religious groups and mission boards. (Article
carry a firearm is neither a property nor a property XIV, Section 4(2)).
right. Neither does it create a vested right. Even if it
were a property right, it cannot be considered
absolute as to be placed beyond the reach of STATE POLICIES
police power. The maintenance of peace and
order, and the protection of the people against
IX. Independent Foreign Policy
violence are constitutional duties of the State, and
the right to bear arms is to be construed in
connection and in harmony with these Section 7. The State shall pursue an
constitutional duties. (Chavez v. Romulo, 2004) independent foreign policy. In its
relations with other states the
VIII. Separation of Church and State paramount consideration shall be
national sovereignty, territorial
119
118 120
Bernas Commentary, p 66 (2003 ed). Cruz, Philippine Political Law, p. 65 (1995 ed).

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integrity, national interest, and the XII. Social Justice

right to self-determination.
The word “relations” covers the whole gamut of Section 10. The State shall promote
treaties and international agreements and other social justice in all phases of national
kinds of intercourse.121 development
X. Freedom from Nuclear Weapons A. Definition of Social Justice
Social Justice is neither communism, nor

Section 8. The Philippines consistent despotism, nor atomism, nor anarchy, but the
with the national interest, adopts and humanization of the laws and the equalization
pursues a policy of freedom from of the social and economic forces by the State
nuclear weapons in its territory. so that justice in its rational and objectively
secular conception may at least be
A. Scope of Policy approximated. (Calalang v. Williams)
The policy includes the prohibition not only of the Social justice simply means the equalization of
possession, control, and manufacture of nuclear economic, political, and social opportunities with
weapons but also nuclear arms tests. special emphasis on the duty of the state to tilt the
balance of social forces by favoring the
B. Exception to the Policy disadvantaged in life.125
Exception to this policy may be made by the

political department but it must be justified by the XIII. Respect for Human Dignity
demands of the national interest.122
Section 11. The State values the
The policy does not prohibit the peaceful use of dignity of every human person and
nuclear energy.123 guarantees full respect for human
rights.
C. Implication of the Policy for the Presence of
American Troops
The concretization of this provision is found
principally in the Bill of Rights and in the human
Any new agreement on bases or the presence of rights provision of Article XIII.126
the troops, if ever there is one, must embody the
basic policy of freedom from nuclear weapons. Facts: Petitioners questioned the constitutionality
Moreover, it would be well within the power of of PD 1869, which created the PAGCOR and
government to demand ocular inspection and authorized it to operate gambling casinos, on the
removal of nuclear arms.124 ground that it violated Sections 11, 12 and 13 of
Article II of the Constitution.
XI. Just and Dynamic Social Order Held: These provisions are merely statements of
policies which are not self-executing. A law has to
be passed to implement them. (Basco v. PAGCOR,
Section 9. The State shall promote a
197 DCRA 52)127
just and dynamic social order that will
ensure the prosperity and
independence of the nation and free
the people from poverty through XIV. Family; Rearing the Youth
policies that provide adequate social
services, promote full employment, a Section 12. The State recognizes the
raising standard of living, and an sanctity of family life and shall protect
improved quality of life for all. and strengthen the family as a basic
autonomous social institution. It shall
equally protect the life of the mother
and the life of the unborn from
121
conception. The natural and primary
122 125
123 126
124 127
Bernas Primer at 15 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 4 (2006 ed.)

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right and duty of parents in rearing of In the matter of education, the primary and natural
the youth for civic efficiency and the right belongs to the parents. The State has a
development of moral character shall secondary and supportive role.
receive the support of the
government. Foreign Language. The State cannot prohibit the
teaching of foreign language to children before
they reach a certain age. Such restriction does
Section 13. The State recognizes
violence both to the letter and the spirit of the
the vital role of the youth in nation-
Constitution. (Meyer v. Nebraska)
building and shall promote and
protect their physical moral, spiritual,
Public School. The State cannot require children
intellectual, and social well-being. It
to attend only public schools before they reach a
shall inculcate in the youth patriotism
certain age. The child is not a mere creature of the
and nationalism, and encourage their
State. Those who nurture him and direct his destiny
involvement in public and civic affairs.
have the right to recognize and prepare him.
(Pierce v. Society of Sisters)
A. Family
Religious Upbringing. The State cannot require
Family” means a stable heterosexual relationship. children to continue schooling beyond a certain
The family is not a creature of the State.128 age in the honest and sincere claim of parents that
such schooling would be harmful to their religious
B. Effect of the Declaration of Family Autonomy upbringing. Only those interests of the State “of the
highest order and those not otherwise served can
It accepts the principle that the family is anterior to overbalance” the primary interest of parents in the
the State and not a creature of the State. It protects religious upbringing of their children. (Wisconsin v.
the family from instrumentalization by the State.129 Yoder)
C. Purpose of Assertion of Protection of the Unborn Parens Patriae. However, as parens patriae, the
State has the authority and duty to step in where
The purpose of the assertion that the protection parents fail to or are unable to cope with their
begins from the time of conception is to prevent duties to their children.
the State form adopting the doctrine in Roe v.
Wade which liberalized abortion laws up to the XV. Women
sixth month of pregnancy by allowing abortion any
time during the first six months of pregnancy
provided it can be done without danger to the Section 14. The State recognizes the
mother. role of women in nation-building, and
shall ensure the fundamental equality
D. Legal Meaning of the Protection Guaranteed for before the law of women and men.
the Unborn.
1. This is not an assertion that the unborn is The provision is so worded as not to automatically
a legal person. dislocate the Civil Code and the civil law
2. This is not an assertion that the life of the jurisprudence on the subject. What it does is to
give impetus to the removal, through statutes, of
unborn is placed exactly on the level of the life
existing inequalities. The general idea is for the law
of the mother. (When necessary to save the
to ignore sex where sex is not a relevant factor in
life of the mother, the life of the unborn may be
determining rights and duties. Nor is the provision
sacrificed; but not when the purpose is merely
meant to ignore customs and traditions.131
to save the mother from emotional suffering,
for which other remedies must be sought, or to
In Philippine Telegraph and Telephone Co. v.
spare the child from a life of poverty, which
NLRC, 1997, the Supreme Court held that the
can be attended to by welfare institutions.)130
petitioner’s policy of not accepting or considering
as disqualified from work any woman worker who
E. Education
contracts marriage , runs afoul of the test of, and
the right against discrimination, which is
guaranteed all women workers under the
Constitution. While a requirement that a woman
employee must remain unmarried may be justified
128
Bernas Commentary, p 84 (2003 ed). as a “bona fide qualification” where the particular
129
130 131

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requirements of the job would demand the same,

discrimination against married women cannot be Section 17. The State shall give
adopted by the employer as a general principle. priority to education, science and
technology, arts, culture and sports to
XVI. Health foster patriotism, nationalism,
accelerate social progress, and
promote total human liberation and
Section 15. The State shall protect development.
and promote the right to health of the (See Article XIV, Section 2)
people and instill health
consciousness among them. This does not mean that the government is not free
to balance the demands of education against other
The provisions which directly or indirectly pertain to competing and urgent demands. (Guingona v.
the duty of the State to protect and promote the Carague)
people’s right to health and well-being are not self-
executory. They await implementation by Congress.132 In Philippine Merchant Marine School Inc. v. CA,
the Court said that the requirement that a school
XVII. Balanced and Healthful Ecology must first obtain government authorization before
operating is based on the State policy that
educational programs and/or operations shall be of
Section 16. The State shall protect and good quality and, therefore, shall at least satisfy
advance the right of the people to a minimum standards with respect to curricula,
balanced and healthful ecology in teaching staff, physical plant and facilities and
accord with the rhythm and harmony of administrative and management viability.
nature.
While it is true that the Court has upheld the
Section 16 provides for enforceable rights. Hence, constitutional right of every citizen to select a
appeal to it has been recognized as conferring profession or course of study subject to fair,
“standing” on minors to challenge logging policies reasonable and equitable admission and academic
of the government. (Oposa v. Factoran) requirements, the exercise of this right may be
regulated pursuant to the police power of the State
While the right to a balanced and healthful to safeguard health, morals, peace, education,
ecology is to be found under the Declaration of order, safety and general welfare.
Principles and State Policies and not under the Bill Thus, persons who desire to engage in the learned
of Rights, it does not follow that it is less important professions requiring scientific or technical
than any of the civil and political rights enumerated knowledge may be required to take an examination
in the latter. Such a right belongs to a different as a prerequisite to engaging in their chosen
category of rights for it concerns nothing less than careers. This regulation assumes particular
self-preservation and self-perpetuation. These pertinence in the field of medicine, in order to
basic rights need not even be written in the protect the public from the potentially deadly effects
Constitution for they are assumed to exist from the of incompetence and ignorance. (PRC v. De
inception of humankind. (Oposa v. Factoran,1993) Guzman, 2004)
On this basis too, the SC upheld the empowerment XIX. Labor

of the Laguna Lake Development Authority (LLDA)
to protect the inhabitants of the Laguna Lake Area
from the deleterious effects of pollutants coming Section 18. The State affirms labor
from garbage dumping and the discharge of as a primary social economic force. It
wastes in the area as against the local autonomy shall protect the rights of workers and
claim of local governments in the area. (LLDA v. promote their welfare.
CA, 1995)
“A primary social economic force” means that the
See Rule of Procedure on Environmental human factor has primacy over non-human factors
Cases. of production.
See Writ of Kalikasan under Article VIII. Protection to labor does not indicate promotion of
employment alone. Under the welfare and social
XVIII. Education, Science and Technology justice provisions of the Constitution, the promotion
of full employment, while desirable, cannot take a
132 backseat to the government’s constitutional duty to
Tondo Medical Center Employees v. CA. G.R. No.
provide mechanisms for the protection of our
167324, July 17, 2007.

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workforce, local or overseas. (JMM Promotion and

Management v. CA, 260 SCRA 319) Although the Constitution enshrines free enterprise
as a policy, it nevertheless reserves to the
What concerns the Constitution more paramountly Government the power to intervene whenever
is employment be above all, decent, just and necessary for the promotion of the general welfare,
humane. It is bad enough that the country has to as reflected in Sections 6 and 19 of Article XII.
send its sons and daughters to strange lands,
because it cannot satisfy their employment needs XXII. Comprehensive Rural Development
at home. Under these circumstances, the
Government is duty bound to provide them
adequate protection, personally and economically, Section 21. The State shall promote
while away from home. (Philippine Association of comprehensive rural development
Service Exporters v. Drilon, 163 SCRA 386) and agrarian program.
(See Article XIII, Sections 4-10)
XX. Self-Reliant and Independent Economy
Comprehensive rural development includes not
only agrarian reform. It also encompasses a broad
Section 19. The State shall develop spectrum of social, economic, human, cultural,
a self-reliant and independent political and even industrial development.
national economy effectively
controlled by Filipinos. XXIII. Indigenous Cultural Communities
This is a guide for interpreting provisions on

national economy and patrimony. Any doubt must Section 22. The State recognizes
be resolved in favor of self-reliance and and promotes the rights of indigenous
independence and in favor of Filipinos. cultural communities within the
framework of national unity and
A petrochemical industry is not an ordinary development.
investment opportunity, it is essential to national (See Article VI Section 5(2); Article XII, Section 5;
interest. (The approval of the transfer of the plant Article XIV, Section 17; See Cruz v. DENR)
from Bataan to Batangas and authorization of the
change of feedstock from naptha only to naptha Read Province of North Cotabato v. GRP
and/or LPG do not prove to be advantageous to
the government. This is a repudiation of the XXIV. Independent People’s Organizations;
independent policy of the government to run its Volunteerism
own affairs the way it deems best for national
interest.) (Garcia v. BOI)
Section 23. The State shall
The WTO agreement does not violate Section 19 of encourage non-governmental,
Article II, nor Sections 10 and 12 of Article XII, community-bases, or sectoral
because said sections should be read and organizations that promote the
understood in relation to Sections 1 and 3, Article welfare of the nation.
XII, which requires the pursuit of a trade policy that (See Article XIII, Sections 15-16)
“serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of The provision recognizes the principle that
equality and reciprocity.” (Tanada V. Angara) volunteerism and participation of non-governmental
organizations in national development should be
XXI. Private Sector and Private Enterprise encouraged.133
XXV. Communication and Information

Section 20. The State recognizes the
indispensable role of the private
sector, encourages private enterprise, Section 24. The State recognizes the
and provides incentives to needed vital role of communication and
investments. information in nation-building.
(See Article XVI, Sections 10-11; Article XVIII,
Section 20 is an acknowledgment of the Section 23)
importance of private initiative in building the
nation. However, it is not a call for official
abdication of duty to citizenry. (Marine Radio
Communications Association v. Reyes) 133

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The NTC is justified to require PLDT to enter

into an interconnection agreement with a Section 27. The State shall maintain
cellular mobile telephone system. The order honesty and integrity in public service
was issued in recognition of the vital role of and take positive and effective
communications in nation-building and to measures against graft and
ensure that all users of the public corruption.
telecommunications service have access to all (See Article IX-D; Article XI, Sections 4-15)
other users of service within the Philippines.
(PLDT v. NTC) XXIV. Full Public Disclosure
XXVI. Local Autonomy (1989 and 2000 Bar Question)
Section 28. Subject to reasonable
conditions prescribed by law, the
Section 25. The State shall ensure State adopts and implements a policy
the autonomy of local governments. of full public disclosure of all its
(See Article X) transactions involving public interest.
(Article III, Section 7; Article VI Sections 12 and 20;
Local autonomy under the 1987 Constitution simply Article VII, Section 20; Article XI, Section 17; Article XII,
means “decentralization” and does not make the Section 21)
local governments sovereign within the State or an
imperium in imperio. (Basco v. PAGCOR) It is well established in jurisprudence that neither
the right to information nor the policy of full public
Decentralization of administration is merely a disclosure is absolute, there being matters which,
delegation of administrative powers to the local albeit of public concern or public interest, are
government unit in order to broaden the base of recognized as privileged in nature. (Akbayan v.
governmental powers. Decentralization of power is Aquino, 2008)
abdication by the national government of
governmental powers. Section 28 is self executory. (Province of North
COtabato v. GRP)
Even as we recognize that the Constitution
guarantees autonomy to local government units, Read JPEPA, NERI and NORTH COTABATO
the exercise of local autonomy remains subject to cases.
the power of control by Congress and the power of
general supervision by the President. (Judge xxx
Dadole v. Commission on Audit, 2002)
(1996 Bar Question)
XXVII. Equal Access to Opportunities A law was passed dividing the Philippines into
three regions (Luzon, Visayas and Mindanao)
each constituting an independent state except
Section 26. The State shall on matters of foreign relations, national
guarantee equal access to defense and national taxation, which are vested
opportunities for public service, and in the Central Government. Is the law valid?
prohibit political dynasties as may be
defined by law. The law dividing the Philippines into three regions
(See Article VII, Section 13; Article XIII, Sections 1- each constituting an independent state and vesting
2) in a central government matters of foreign
relations, national defense and national taxation is
Purpose. The thrust of the provision is to impose unconstitutional.
on the state the obligation of guaranteeing equal
access to public office.134
1. It violates Article I, which guarantees the
integrity of the national territory of the
There is no constitutional right to run for or hold Philippines because it divided the
public office. What is recognized is merely a Philippines into three states.
privilege subject to limitations imposed by law. 2. It violates Section 1, Article II of the
Section 26 of the Constitution neither bestows such Constitution which provides for the
right nor elevates the privilege to the level of an establishment of democratic and republic
enforceable right. (Pamatong v. COMELEC) states by replacing it with three states
organized as a confederation.
XXVIII. Public Service 3. It violates Section 22, Article II of the
Constitution, which, while recognizing and
134 promoting the rights of indigenous cultural

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communities, provides for national unity  Within these territorial waters, the BJE and
and development. the “Central Government” (used
4. It violates Section 15, Article X of the interchangeably with RP) shall exercise joint
Constitution, which, provides for jurisdiction, authority and management over
autonomous regions in Muslim Mindanao all natural resources.
and in the cordilleras within the framework  The BJE is free to enter into any economic
of national sovereignty as well as cooperation and trade relations with foreign
territorial integrity of the Republic of the countries and shall have the option to
Philippines. establish trade missions in those countries.
Such relationships and understandings,
5. It violates the sovereignty of the Republic however, are not to include aggression
of the Philippines. against the GRP. The BJE may also enter
into environmental cooperation agreements.
Province of North Cotabato v. Government of the
Republic of the Philippines
 The external defense of the BJE is to remain
October 14, 2008, GR 183591 the duty and obligation of the Central
Government. The Central Government is also
FACTS: bound to “take necessary steps to ensure the
Peace negotiations between the GRP135 and MILF136 BJE’s participation in international meetings
began in 1996. Formal peace talks between the parties and events” like those of the ASEAN and the
were held in Tripoli, Libya in 2001, the outcome of specialized agencies of the UN.
which was the GRP-MILF Tripoli Agreement on Peace  The BJE is to be entitled to participate in
(Tripoli Agreement 2001) containing the basic Philippine official missions and delegations for
principles and agenda on the following aspects of the the negotiation of border agreements or
negotiation: Security Aspect, Rehabilitation Aspect, protocols for environmental protection and
and Ancestral Domain Aspect. In 2005, several equitable sharing of incomes and revenues
exploratory talks were held between the parties in involving the bodies of water adjacent to or
Kuala Lumpur, eventually leading to the crafting of the between the islands forming part of the
draft MOA-AD137 in its final form, which was set to be ancestral domain.
signed on August 5, 2008. Several petitions were filed
seeking, among others, to restrain the signing of the The MOA-AD further provides for the sharing of
MOA-AD. Petitions allege, among others, that the minerals on the territorial waters between the Central
provisions of the MOA-AD violate the Constitution. Government and the BJE, in favor of the latter,
through production sharing and economic cooperation
The MOA-AD mentions the “Bangsamoro Juridical agreement. The activities which the Parties are
Entity” (BJE) to which it grants the authority and allowed to conduct on the territorial waters are
jurisdiction over the Ancestral Domain and Ancestral enumerated, among which are the exploration and
Lands of the Bangsamoro. The territory of the utilization of natural resources, regulation of shipping
Bangsamoro homeland is described as the land mass and fishing activities, and the enforcement of police
as well as the maritime, terrestrial, fluvial and alluvial and safety measures.
domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao- The MOA-AD describes the relationship of the Central
Sulu-Palawan geographic region. Government and the BJE as “associative,”
characterized by shared authority and responsibility.
The Parties to the MOA-AD stipulate that: And it states that the structure of governance is to be
based on executive, legislative, judicial, and
 The BJE shall have jurisdiction over all natural administrative institutions with defined powers and
resources within its “internal waters,” defined functions in the Comprehensive Compact. The BJE is
as extending fifteen (15) kilometers from the granted the power to build, develop and maintain its
coastline of the BJE area; own institutions inclusive of civil service, electoral,
 The BJE shall also have “territorial waters,” financial and banking, education, legislation, legal,
economic, police and internal security force, judicial
which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of system and correctional institutions, the details of
which shall be discussed in the negotiation of the
the Philippines (RP) south east and south
west of mainland Mindanao; comprehensive compact.
135 Paragraph 1 on CONCEPTS AND PRINCIPLES of MOA-

Government of the Republic of the Philippines
136
Moro Islamic Liberation Front: The MILF is a rebel group AD states:
which was established in March 1984 when, under the 1. It is the birthright of all Moros and
leadership of the late Salamat Hashim, it splintered from the all Indigenous peoples of Mindanao
Moro National Liberation Front (MNLF) then headed by Nur to identify themselves and be
Misuari, on the ground, among others, of what Salamat
accepted as “Bangsamoros”. The
perceived to be the manipulation of the MNLF away from an
Bangsamoro people refers to those who
Islamic basis towards Marxist-Maoist orientations.
137 are natives or original inhabitants of
Memorandum of Agreement on Ancestral Domain

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Mindanao and its adjacent islands the spirit animating it – which has betrayed itself by its
including Palawan and the Sulu use of the concept of association – runs counter to the
archipelago at the time of conquest or national sovereignty and territorial integrity of the
colonization of its descendants whether Republic.
mixed or of full blood. Spouses and their
descendants are classified as The defining concept underlying the relationship
Bangsamoro. The freedom of choice of between the national government and the BJE being
the Indigenous people shall be respected. itself contrary to the present Constitution, it is not
surprising that many of the specific provisions of the
ISSUE : MOA-AD on the formation and powers of the BJE are in
Whether MOA-AD is constitutional. conflict with the Constitution and the laws.
HELD: Article X, Section 18 of the Constitution

Main Opinion, J. Carpio-Morales: provides that “[t]he creation of the autonomous
No. The MOA-AD is inconsistent with the Constitution region shall be effective when approved by a majority
and laws as presently worded: of the votes cast by the constituent units in a
1. The concept of association is not plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting
recognized under the present
favorably in such plebiscite shall be included in the
Constitution.
autonomous region.”
2. The MOA-AD would not comply with Article X
Section 20 of the Constitution
The BJE is more of a state than an autonomous
3. Article II, Section 22 of the Constitution region. But even assuming that it is covered by the
must also be amended if the scheme term “autonomous region” in the constitutional
envisioned in the MOA-AD is to be provision just quoted, the MOA-AD would still be in
effected. conflict with it. Under paragraph 2(c) on TERRITORY
4. The MOA-AD is also inconsistent with R.A. No. in relation to 2(d) and 2(e), the present geographic
9054 (The Organic Act of the ARMM) area of the ARMM and, in addition, the municipalities
of Lanao del Norte which voted for inclusion in the
5. The MOA-AD is also inconsistent with
ARMM during the 2001 plebiscite – Baloi, Munai,
IPRA Nunungan, Pantar, Tagoloan and Tangkal – are
6. Even if the UN DRIP were considered as automatically part of the BJE without need of another
part of the law of the land pursuant to plebiscite, in contrast to the areas under Categories A
Article II, Section 2 of the Constitution, it and B mentioned earlier in the overview. That the
would not suffice to uphold the validity present components of the ARMM and the above-
of the MOA-AD so as to render its mentioned municipalities voted for inclusion therein in
compliance with other laws 2001, however, does not render another plebiscite
unnecessary. unnecessary under the Constitution, precisely because
what these areas voted for then was their inclusion in
The concept of association is not recognized the ARMM, not the BJE.
under the present Constitution.
No province, city, or municipality, not even the ARMM, Article II, Section 22 of the Constitution must
is recognized under our laws as having an also be amended if the scheme envisioned in the
“associative” relationship with the national MOA-AD is to be effected.
government. Indeed, the concept implies powers that That constitutional provision states: “The State
go beyond anything ever granted by the Constitution recognizes and promotes the rights of indigenous
to any local or regional government. It also implies cultural communities within the framework of national
the recognition of the associated entity as a state. The unity and development.” (Underscoring supplied) An
Constitution, however, does not contemplate any state associative arrangement does not uphold national
in this jurisdiction other than the Philippine State, unity. While there may be a semblance of unity
much less does it provide for a transitory status that because of the associative ties between the BJE and
aims to prepare any part of Philippine territory for the national government, the act of placing a portion
independence. of Philippine territory in a status which, in international
practice, has generally been a preparation for
It is not merely an expanded version of the ARMM, the independence, is certainly not conducive to national
status of its relationship with the national government unity.
being fundamentally different from that of the ARMM.
Indeed, BJE is a state in all but name as it meets the The MOA-AD is also inconsistent with IPRA.
criteria of a state laid down in the Montevideo IPRA,lays down the prevailing procedure for the
Convention, namely, a permanent population, a delineation and recognition of ancestral domains. The
defined territory, a government, and a capacity to MOA-AD’s manner of delineating the ancestral domain
enter into relations with other states. of the Bangsamoro people is a clear departure from
that procedure. By paragraph 1 of TERRITORY of the
Even assuming arguendo that the MOA-AD would not MOA-AD, Parties simply agree that, subject to the
necessarily sever any portion of Philippine territory, delimitations in the agreed Schedules, “[t]he

SCHOOL OF LAW
Bangsamoro homeland and historic territory refer to

the land mass as well as the maritime, terrestrial,
fluvial and alluvial domains, and the aerial domain, the Separate Opinion, J. Carpio:
atmospheric space above it, embracing the Mindanao- The incorporation of the Lumads, and their ancestral
Sulu-Palawan geographic region.” domains, into the Bangsamoro violates the
Constitutional and legislative guarantees recognizing
International law has long recognized the right to self- and protecting the Lumads’ distinct cultural identities
determination of “peoples,” understood not merely as as well as their ancestral domains. The violation of
the entire population of a State but also a portion these guarantees makes the MOA-AD patently
thereof. The people’s right to self-determination unconstitutional.
should not, however, be understood as extending to a
unilateral right of secession. The incorporation of the Lumads, and their ancestral
domains, into the Bangsamoro without the Lumads’
In a historic development last September 13, 2007, knowledge and consent also violates Article 8 of the
the UN General Assembly adopted the United Nations United Nations Declaration on the Rights of Indigenous
Declaration on the Rights of Indigenous Peoples (UN Peoples. The provisions of Article 8 were designed to
DRIP) through General Assembly Resolution 61/295 prevent cultural genocide of indigenous peoples.
the Philippines being included among those in favor, This will happen if the Lumads are identified from birth
The Declaration clearly recognized the right of as Bangsamoros and their ancestral domains are
indigenous peoples to self-determination, absorbed into the ancestral domain of the
encompassing the right to autonomy or self- Bangsamoros.
government. Self-government, as used in international
legal discourse pertaining to indigenous peoples, has Issue :
been understood as equivalent to “internal self- Did respondents violate constitutional and statutory
determination.” provisions on public consultation and the right to
information when they negotiated and later initialed
Assuming that the UN DRIP, like the Universal the MOA-AD?
Declaration on Human Rights, must now be regarded
as embodying customary international law– still, the Held:
obligations enumerated therein do not strictly require Main Opinon, J. Carpio-Morales: YES. As regards
the Republic to grant the Bangsamoro people, through this issue, the respondents violated the following legal
the instrumentality of the BJE, the particular rights and provisions:
powers provided for in the MOA-AD. Even the more -Article II, Section 28
specific provisions of the UN DRIP are general in -Article III Section 7
scope, allowing for flexibility in its application by the -Executive Order No. 3
different States. -Local Government Code
-IPRA
There is, for instance, no requirement in the UN DRIP
that States now guarantee indigenous peoples their The policy of full public disclosure enunciated in
own police and internal security force. Indeed, Article above-quoted Section 28 complements the right of
8 presupposes that it is the State which will provide access to information on matters of public concern
protection for indigenous peoples against acts like the found in the Bill of Rights. The right to information
forced dispossession of their lands – a function that is guarantees the right of the people to demand
normally performed by police officers. If the information, while Section 28 recognizes the duty of
protection of a right so essential to indigenous people’s officialdom to give information even if nobody
identity is acknowledged to be the responsibility of the demands. the effectivity of the policy of public
State, then surely the protection of rights less disclosure need not await the passing of a statute.
significant to them as such peoples would also be the
duty of States. Nor is there in the UN DRIP an IPRA
acknowledgement of the right of indigenous peoples to The ICCs/IPs have, under the IPRA, the right to
the aerial domain and atmospheric space. What it participate fully at all levels of decision-making in
upholds, in Article 26 thereof, is the right of matters which may affect their rights, lives and
indigenous peoples to the lands, territories and destinies. The MOA-AD, an instrument recognizing
resources which they have traditionally owned, ancestral domain, failed to justify its non-compliance
occupied or otherwise used or acquired. Moreover, the with the clear-cut mechanisms ordained in IPRA, which
UN DRIP, while upholding the right of indigenous entails, among other things, the observance of the
peoples to autonomy, does not obligate States to free and prior informed consent of the ICCs/IPs. The
grant indigenous peoples the near-independent status IPRA does not grant the Executive Department or any
of an associated state. government agency the power to delineate and
recognize an ancestral domain claim by mere
Even if the UN DRIP were considered as part of the law agreement or compromise. In proceeding to make a
of the land pursuant to Article II, Section 2 of the sweeping declaration on ancestral domain, without
Constitution, it would not suffice to uphold the validity complying with the IPRA, which is cited as one of the
of the MOA-AD so as to render its compliance with TOR of the MOA-AD, respondents clearly
other laws unnecessary.

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transcended the boundaries of their authority. (J.

Carpio-Morales)

SCHOOL OF LAW
A. Definition of Legislative Power
Legislative power is the authority to make laws and

LEGISLATIVE DEPARTMENT to alter or repeal them.
In the Feb 15, 2011 Resolution in the 16

OUTLINE OF ARTICLE VI CItyhood Laws case, the Supreme Court
speaking through J. Bersamin opined,
I. Legislative Power (§1) “Without doubt, the LGC is a creation of
Congress through its law making powers.
II. Powers of Congress
Congress has the power to alter or modify it as
III. Congress (§§ 2-10) it did when it enacted R.A. 9009. Such power
IV. Privileges of Members (§ 11) of amendment of laws was again exercised
V. Duty to Disclose, Disqualifications when Congress enacted the Cityhood Laws.”
and Prohibitions (§§ 12-14) “Undeniably RA No. 9009 amended the LGC.
VI. Internal Government of Congress But it is also true that, in effect,l the CItyhood
(§§ 15-16) Laws amended RA No. 9009 through the
VII. Electoral Tribunal, CA (§§17-19) exemption clauses found therein. Since the
Cityhood Laws are explicitly exempted the
VIII. Records and Books of concerned municipalities from the amendatory
Accounts (§ 20) RA 9009, such Cityhood Laws are, therefore,
IX. Inquiries/ Oversight function (§§ 21- also amendments to the LGC itself.”
22) [This February 15, 2011 Resolution is upheld
X. Emergency Powers (§ 23) in a Resolution dated April 12, 2011]
XI. Bills/ Legislative Process (§ B. Where Vested
24,26,27)
XII. Power of the Purse/Fiscal Legislative power is vested in Congress except to
Powers (§§ 28,29,25) the extent reserved to the people by the provision
XIII. Other Prohibited Measures on initiative and referendum.
(§§30-31) C. Classification of legislative power
XIV. Initiative and Referendum (§ 32) (1) Original legislative power- possessed by the
sovereign people.
I. LEGISLATIVE POWER
(2) Derivative legislative power- that which has
been delegated by the sovereign people to the
Definition of Legislative Power legislative bodies. (Kind of power vested in Congress)
Where Vested (3) Constituent- The power to amend or revise
Classification of Legislative Power
the constitution
Scope of Legislative power
Limitations on Legislative Power (4) Ordinary- Power to pass ordinary laws.
Non-delegability of Legislative power
Rationale of the Doctrine of Non-delegability Legislative power exercised by the people. The
Valid delegation of legislative powers people, through the amendatory process, exercise
Delegation of rule-making power constituent power, and through initiative and
Requisites for a valid delegation of rule-making referendum, ordinary legislative power.
power
Sufficient Standards D. Scope of Legislative power.
Examples of Invalid of Delegation
Congress may legislate on any subject matter.
Section 1. The Legislative power (Vera v. Avelino) In other words, the legislative
shall be vested in the Congress of the power of Congress is plenary.
Philippines which shall consist of a
Senate and a House of Power to Create Public Office is Inherently
Representatives, except to the extent Legislative Power
reserved to the people by the It is settled that, except for the offices created
provision on initiative and by the Constitution, the creation of a public
referendum. office is primarily a legislative function.
(Separate Opinion of C.J. Corona in Biraogo

SCHOOL OF LAW
v. PTC, 2010) The power to create a public iv. On Constitutional Appellate

office is essentially legislative, and, therefore, jurisdiction of SC143
it belongs to Congress. It is not shared by v. No law granting a title of royalty or
Congress with the President, until and unless nobility shall be enacted (art. 6 §31)
Congress enacts legislation that delegates a b. Implied limitations
part of the power to the President, or any i. Congress cannot legislate
other officer or agency. (Separate Opinion of irrepealable laws
ii. Congress cannot delegate legislative
J. Bersamin in Biraogo v. PTC, 2010) powers
iii. Non-encroachment on powers of
How is public office created? other departments
A public office may be created only through
any of the following modes, namely: (a) by the 2. Procedural limitations:
a. Only one subject
Constitution; or (b) by statute enacted by b. Three readings on separate days
Congress; or (c) by authority of law (through a c. Printed copies in its final form 3 days before
valid delegation of power). (J.Bersamin in passage of the bill. (art 6 § 26)
Biraogo v. PTC citing Secretary of DOTC v.
Malabot, G.R. No. 138200, February 27, F. Non-delegability of Legislative power
2002, 378 SCRA 128.)
Doctrine of Non-delegation of legislative
(See Notes under Article VII Section 17 on powers: The rule is delegata potestas non potest
distinction of Power to Create Public Office delagari-what has been delegated cannot be
and Power to Create Ad Hoc Bodies) delegated. The doctrine rests on the ethical
principle that a delegated power constitutes not
only a right but duty to be performed by the
E. Limitations on legislative power:
delegate by the instrumentality of his own judgment
1. Substantive limitations138 and not through the intervening mind of another.
2. Procedural limitations139
G. Rationale of the Doctrine of Non-delegability:
1. Substantive limitations:
a. Express Limitations (1) Based on the separation of powers.
(Why go to the trouble of separating the three
i. Bill of Rights 140
powers of government if they can straightaway
ii. On Appropriations141 remerge on their own notion?)
iii. On Taxation142 (2) Based on due process of law. Such
precludes the transfer of regulatory functions
to private persons.
138
Refer to the subject matter of legislation. These are limitations on (3) And, based on the maxim, “degelata
the content of laws. potestas non potest delegari” meaning what
139
Formal limitations refer to the procedural requirements to be has been delegated already cannot be further
complied with by Congress in the passage of the bills. (Sinco, Phil. delegated.
Political Law)
140
Bill of Rights H. Valid delegation of legislative powers
o No law shall be passed abridging
freedom of speech, of expression etc (art. 3 §4) General Rule: Legislative power cannot be
o No law shall be made respecting an delegated
establishment of religion (art. 3 §5) Exceptions:
o No law impairing the obligation of
contracts shall be passed. (art 3 §10) (1) Delegation of tariff power to the
o No ex post facto law or bill of President
141
attainder shall be enacted. (art. 3 §22) (2) Delegation of emergency powers to
On Appropriations the President
o Congress cannot increase (3) Delegation to LGU’s
appropriations by the President (art. 6 §25)
o (art. 6 29(2)
Note:
142
On Taxation
143
o (art. 6 §28 and 29(3)) No law shall be passed increasing the appellate jurisdiction of
o (art. 14 §4(3)) the SC without its advice and concurrence (art. 6 §30)

SCHOOL OF LAW
Some commentators include (a) delegation to

the people at large and (b) delegation to Reorganization "involves the reduction of
administrative bodies to the exceptions.(See Cruz, personnel, consolidation of offices, or abolition
Philippine Political Law p 87, 1995 ed.) However, I thereof by reason of economy or redundancy of
submit this is not accurate. functions." It takes place when there is an
I submit that legislative power is not delegated alteration of the existing structure of government
to the people because in the first place they are the offices or units therein, including the lines of
primary holder of the power; they only delegated control, authority and responsibility between them.
such power to the Congress through the
Constitution. (See Preamble and Article II Section Issue: Is there a valid delegation of power from
1) Note that Article VI Section 1 does not delegate Congress thru PD 1416, empowering the
power to the people. It reserves legislative power President to create a public office?
to the people. -asm
What is delegated to administrative bodies is Held: NO. No. P.D. 1416 is already stale,
not legislative power but rule-making power or law anachronistic and inoperable. P.D. No. 1416 was a
execution. delegation to then President Marcos of the
authority to reorganize the administrative structure
Biraogo v. PTC of the national government including the power to
Facts: President Noynoy Aquino on July 30, 2010, create offices and transfer appropriations pursuant
signed Executive Order No. 1 establishing the to one of the purposes of the decree, embodied in
Philippine Truth Commission of 2010 (Truth its last “Whereas” clause:
Commission).The said Truth is dedicated solely to “WHEREAS, the transition towards the
investigating and finding out the truth concerning parliamentary form of government will
the reported cases of graft and corruption during necessitate flexibility in the organization of
the previous administration. the national government. “
Clearly, as it was only for the purpose of providing
The Respondents through OSG cites the recent manageability and resiliency during the interim,
case of Banda v. Ermita, where it was held that the P.D. No. 1416, as amended by P.D. No. 1772,
President has the power to reorganize the offices became functus oficio upon the convening of the
and agencies in the executive department in line First Congress, as expressly provided in Section 6,
with his constitutionally granted power of control Article XVIII of the 1987 Constitution.
and by virtue of a valid delegation of the legislative
power to reorganize executive offices under
existing statutes. (Note: While it was recognized in this case of
According to the OSG, the power to create a truth Biraogo v. PTC that the power to conduct
commission pursuant to the above provision finds investigations is inherent in the power to faithfully
statutory basis under P.D. 1416, as amended by execute laws, E.O. 1 by Pres. Noynoy Aquino
P.D. No. 1772. The said law granted the President creating the Truth Commission is held
the continuing authority to reorganize the national unconstitutional for being violative of the equal
government, including the power to group, protection clause of the Constitution.)
consolidate bureaus and agencies, to abolish
offices, to transfer functions, to create and classify I. Delegation of rule-making powers
functions, services and activities, transfer
appropriations, and to standardize salaries and What is delegated to administrative bodies is not
materials. legislative power but rule-making power or law
execution. Administrative agencies may be allowed
Issue: Does the creation of the Philippine Truth either to:
Commission fall within the ambit of the power to  Fill up the details on otherwise
reorganize as expressed in Section 31 of the complete statue or
Revised Administrative Code?
 Ascertain the facts necessary to bring
Held: J. Mendoza. No. Section 31 contemplates a “contingent” law or provision into actual
“reorganization”. To say that the Truth operation.
Commission is borne out of a restructuring of the
Office of the President under Section 31 is a Power of Subordinate Legislation. It is the
misplaced supposition, even in the plainest authority of the administrative body tasked by the
meaning attributable to the term “restructure”– an legislature to implement laws to promulgate rules
“alteration of an existing structure.” Evidently, the and regulations to properly execute and implement
Truth Commission was not part of the structure of laws.
the Office of the President prior to the enactment of
Executive Order No. 1. Contingent Legislation

SCHOOL OF LAW
The standby authority given to the President to be drawn from the declared policy of the law and
increase the value added tax rate in the VAT Law, from the totality of the delegating statute. (Osmena
R.A. 9337 was upheld as an example of contingent v. Orbos) It can be implied from the policy and
legislation where the effectivity of the law is made purpose of the law (Agustin v. Edu)
to depend on the verification by the executive of
the existence of certain conditions.144 2. A legislative standard may be found in various
parts of the statute. (Tablarin v. Guttierez)
In Gerochi v. DENR145 the power delegated to the
Energy Regulator Board to fix and impose a 3. A legislative standard need not be found in the
universal charge on electricity end-users was law challenged and may be embodied in other
challenged as an undue delegation of the power to statues on the same subject. (Chiongbayan v
tax. The Court said that, since the purpose of the Orbos)
law was not revenue generation but energy
regulation, the power involved was more police Q: Petitioners questioned the grant of the
power than the power to tax. Moreover the Court powers to mayors to issue permits for public
added that the power to tax can be used for assemblies in the Public Assembly Act on
regulation. As to the validity of the delegation to an the ground that it constituted an undue
executive agency, the Court was satisfied that the delegation of legislative power. There is
delegating law was complete in itself and the however a reference to “imminent and grave
amount to be charged was made certain by the danger of a substantive evil: in Section 6(c).
parameters set by the law itself. Decide.
A: The law provides a precise and sufficient
J. Requisites for a valid delegation of rule-making standard, the clear and present danger test
power or execution: (2005 Bar Question) in Section 6(a). The reference to imminent
and grave danger of a substantive evil in
(1) The delegating law must be complete in itself Section 6(c) substantially means the same.
(Bayan v. Ermita)
– it must set therein the policy to be carried out
or implemented by the delegate.
4. Examples of sufficient standards
(2) The delegating law must fix a sufficient o “Necessary or advisable in the public interest” as
standard- the limits of which are sufficiently a standard. Public interest in this case is sufficient
determinate or determinable, to which the standard pertaining to the issuance or cancellation
delegate must conform in the performance of of certificates or permits. And the term “public
his functions. interest’ is not without a settled meaning. (People vs.
Rosenthal)
o “Necessary in the interest of law and
Importance of Policy. Without a statutory
order” as a standard. An exception to the general
declaration of policy, the delegate would, in effect, rule, sanctioned by immemorial practice, permits the
make or formulate such policy, which is the central legislative body to delegate legislative
essence of every law. powers to local authorities. (Rubi vs. Provincial
Board of Mindoro)
Importance of Standard. Without standard, there o “To promote simplicity, economy and
would be no means to determine with reasonable efficiency” as a standard. (Cervantes vs. Auditor
certainty whether the delegate has acted within or General)
beyond the scope of his authority. Hence, he could o “Of a moral, educational, or amusing and
harmless character” as a standard. (Mutual Film Co.
thereby arrogate upon himself the power, not only
vs. Industrial Commission of Ohio)
to make law, but also to unmake it, by adopting o “To maintain monetary stability promote
measures inconsistent with the end sought to be a rising level of production, employment and real
attained by the Act of Congress. (Pelaez v. Auditor income” as a standard. (People vs. Jollife)
General) o “Adequate and efficient instruction” as
standard. (Philippine Association of Colleges and
K. Standards Universities vs. Sec. of Education.
1. Need not be explicit o “Justice and equity and substantial merits of the
2. May be found in various parts of the statute case” as a standard. The discretionary power thus
3. May be embodied in other statutes of the conferred is judicial in character and does not
same statute infringe upon the principle of separation of powers
the prohibition against the delegation of legislative
function (International Hardwood and Veneer Co. vs.
1. A legislative standard need not be explicit or
Pangil Federation of Labor)
formulated in precise declaratory language. It can o “Fair and equitable employment
144 practices” as a standard. The power of the POEA in
Abakada Guru Party List Officers v. Executive Secretary, G.R. requiring the model contract is not unlimited as there
168056, September 1, 2005. Reconsidered October 18, 2005. is a sufficient standard guiding the delegate in the
145
G.R. No. 159796, July 17, 2007

SCHOOL OF LAW
exercise of the said authority. (Eastern Shipping (1) Police power

Lines Inc. vs. POEA) (2) Power of eminent domain
o “As far as practicable”, “decline of crude (3) Power of taxation
oil prices in the world market” and “stability of the (4)Implied Powers (Contempt Power)146
peso exchange rate to the US dollar” as standards.
The dictionary meanings of these words are well B. EXPRESS POWERS
settled and cannot confuse men of reasonable
intelligence. (However, by considering another factor
to hasten full deregulation, the Executive (1) Legislative Power (art 6 sec1)
Department rewrote the standards set forth in the (a) Ordinary- power to pass ordinary laws
statute. The Executive is bereft of any right to alter (b) Constituent147- power to amend and or
either by subtraction or addition the standards set in revise the Constitution
the statute.) (Tatad vs. Sec of Energy) (2) Power of the Purse148 (art. 6§25)
(3) Power of Taxation (art. 6 §28(3), art. 14 §4(3),
L. Examples of invalid delegation art 6, §29(4))
o Where there is no standard that the officials (4) Investigatory Power (art. 6 §21)
must observe in determining to whom to distribute (5) Oversight function (art. 6 §22)
the confiscated carabaos and carabeef, there is thus (6) Power to declare the existence of state of war
an invalid delegation of legislative power. (Ynot v. (art. 6 §23(1))
IAC)
(7) Power to act as Board of Canvassers in election
o Where a provision provides that the penalty of President149 (art 7 §4)
would be a fine or 100 pesos OR imprisonment in (8) Power to call a special election for President
the discretion of the court without prescribing the
and Vice-President. (art. 7 §10)
minimum and maximum periods of imprisonment, a
penalty imposed based thereon is unconstitutional. It (9) Power to judge President’s physical fitness to
is not for the courts to fix the term of imprisonment discharge the functions of the Presidency (art.
where no points of reference have been provided by 7§11)
the legislature. (People v. Dacuycuy) (10) Power to revoke or extend suspension of the
o Where the statute leaves to the sole discretion privilege of the writ of habeas corpus or
of the Governor-General to say what was and what declaration of martial law. (art. 7 §18)
was not “any cause” for enforcing it, the same is an (11) Power to concur in Presidential amnesties.
invalid delegation of power. The Governor-General Concurrence of majority of all the members of
cannot by proclamation, determine what act shall
Congress. (art.7 §19)
constitute a crime or not. That is essentially a
legislative task. (US vs. Ang Tang) (12) Power to concur in treaties or international
o Where a statute requires every public utility “to agreements. Concurrence of at least 2/3 of all
furnish annually a detailed report of finances and the members of the Senate.(art.7 §21)
operations in such form and containing such matter (13) Power to confirm certain
as the Board may, from time to time, by order, appointments/nominations made by the
prescribe”, it seems that the legislature simply President (art.7 §9, art.7§16)
authorized the Board to require what information the (14) Power of Impeachment (art.11§2)
Board wants. Such constitutes an unconstitutional (15) Power relative to natural resources150 (art. 12
delegation of legislative power. (Compana General
de Tabacos de Filipinas vs. Board of Public Utility
§2)
Commissioners) (16) Power of internal organization
o Where the legislature has not made the Election of officers
Promulgate internal rules
operation (execution) of a statute contingent upon
specified facts or conditions to be ascertained by the Disciplinary powers (art.6 §16)
provincial board but in reality leaves the entire
matter for the various provincial boards to
determine, such constitute an unconstitutional
delegation of legislative power. A law may not be
suspended as to certain individuals only, leaving the
law to be enjoyed by others. (People vs. Vera)
o The authority to CREATE municipal corporations 146
is essentially legislative in nature. Page 12 of 2008 UP Bar Ops Reviewer.
147
See RCAP v. Ermita, G.R. 180046, April 2, 2009 Propose amendment to or revision of the Constitution (art 17
§1)Call for a constitutional convention (art 17 §3)
148
II. POWERS OF CONGRESS No money shall be paid out of the Treasury except in pursuance
of an appropriation made by law. (art 6 §29(1)) The form, content,
and manner of preparation of budget shall be prescribed by law.
A. Inherent Powers (art 6 §25)
B. Express Powers 149
This function is non-legislative. (Pimentel v. Joint Committee on
Congress. June 22, 2004)
A. INHERENT POWERS 150
Antonio B. Nachura, Outline/Reviewer in Political Law (2006
ed.)

SCHOOL OF LAW
Note: Members of Congress have immunity from Section 2. The Senate shall be
arrest and parliamentary immunity.151 (art 6 composed of twenty-four senators
§§11&12) who shall be elected at large by the
qualified voters of the Philippines, as
III. Congress may be provided by law.
Elected at large, reason. By providing for a

Composition of Congress
membership elected at large by the electorate, this
Bicameralism v. Unicameralism
rule intends to make the Senate a training ground
Composition of Senate
for national leaders and possibly a springboard for
Qualification of Senators
the Presidency. The feeling is that the senator,
Senators’ Term of Office / Staggering of Terms
having national rather than only a district
Composition of HR
constituency, will have a broader outlook of the
Qualification of Members of HR
problems of the country instead of being restricted
Domicile
by parochial viewpoints and narrow interests. With
Property Qualification
such a perspective, the Senate is likely to be more
Term of Office of Representatives
circumspect and broad minded than the House of
Party-List System
Representatives.153
Legislative Districts
Election
D. Qualifications of a Senator
Salaries
A. Composition of Congress Section 3. No person shall be a

senator unless he is a natural-born
The Congress of the Philippines which shall consist citizen of the Philippines, and, on the
of a Senate and a House of Representatives. (art 6 day of the election, is at least thirty-
§1) five years of age, able to read and
write, a registered voter, and a
B. Bicameralism v. Unicameralism resident of the Philippines for not less
than two years immediately preceding
the day of election.
The Congress of the Philippines is a bicameral
body composed of a Senate and House of
Representatives, the first being considered as the Qualifications of a senator
upper house and the second the lower house. (1) Natural-born citizen of the Philippines
(2) At least 35 years of age on the day of
Advantages of Unicameralism. the election
1. Simplicity of organization (3) Able to read and write
resulting in economy and efficiency (4) Registered voter
2. Facility in pinpointing (5) Resident of the Philippines for not
responsibility for legislation less than 2 years immediately preceding the
3. Avoidance of duplication. day of election.
“On the day of the election” means on the day the
Advantages of Bicameralism. votes are cast. (Bernas Primer)
1. Allows for a body with a national
perspective to check the parochial E. Senators’ Term of Office
tendency of representatives elected by Term
district. Commencement of Term
2. Allows for more careful study of Limitation
legislation Effect of Voluntary Renunciation
3. Makes the legislature less susceptible Staggering of Terms
to control by executive Reason for Staggering
4. Serves as training ground for national
leaders.152 Section 4. The term of office of the
Senators shall be six years and shall
C. Composition of Senate commence, unless otherwise
provided by law, at noon on the
thirtieth day of June next following
their election.
151
Privilege from attest is not given to Congress as a body, but rather
one that is granted particularly to each individual member of it.
(Coffin v. Coffin, 4 Mass 1)
152 153
Bernas, Primer p 224, 2006 ed. Cruz, Phlippine Political Law.

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No Senator shall serve for more than Composition. The composition of the House of
two consecutive terms. Voluntary Representatives shall be composed of not more
renunciation of the office for any than 250 members unless otherwise fixed by law.
length of time shall not be considered
as an interruption in the continuity of Representatives shall be elected from legislative
his service for the full term for which districts and through party-list system.
he was elected.
a) District representatives
1. Term. The term of office of the Senators shall be b) Party-list representatives
6 years. c) Sectoral representatives
(these existed only until 1998)
2. Commencement of term. The term of office of
the Senators shall commence on 12:00 noon of G. Qualification of Representatives
June 30 next following their election. (unless
otherwise provided by law) Section 6. No person shall be a
member of the House of
3. Limitation. A Senator may not serve for more Representatives unless he is a
than two consecutive terms. However, they may natural born citizen of the Philippines
serve for more than two terms provided that the and, on the day of the election, is at
terms are not consecutive. least twenty-five years of age, able to
read and write, and except the party-
4. Effect of Voluntary Renunciation. Voluntary list representatives, a registered voter
renunciation of office for any length of time shall in the district in which he shall be
not be considered as an interruption in the elected, and a resident thereof for a
continuity of his service for the full term for which period of not less than one year
he was elected. (art. 6 § 4) immediately preceding the day of the
election.
5. Staggering of Terms. The Senate shall not at
any time be completely dissolved. One-half of the
Qualifications of District Representatives:
membership is retained as the other half is
(1) Natural-born citizen of the Philippines
replaced or reelected every three years.
(2) At least 25 years of age on the day of
the election
6. Reason for Staggering. The continuity of the
(3) Able to read and write
life of the Senate is intended to encourage the
(4) A registered voter in the district in
maintenance of Senate policies as well as
which he shall be elected
guarantee that there will be experienced members
(5) A resident of the district in which he
who can help and train newcomers in the
shall be elected for a period not less than 1
discharge of their duties.154
year immediately preceding the day of the
election.
F. Composition of House of Representatives
H. Domicile
Section 5. (1) The House of
Representatives shall be composed Domicile
of not more than two hundred and Residence as a qualification means “domicile”.
fifty members, unless otherwise fixed Normally a person’s domicile is his domicile of
by law, who shall be elected from origin.
legislative districts apportioned
among the provinces, cities, and the If a person never loses his or her domicile, the one
Metropolitan Manila area in year requirement of Section 6 is not of relevance
accordance with the number of their because he or she is deemed never to have left the
respective inhabitants, and on the place. (Romualdez-Marcos v. COMELEC)
basis of a uniform and progressive
ratio, and those who, as provided by A person may lose her domicile by voluntary
law, shall be elected through a party- abandonment for a new one or by marriage to a
list system of registered national, husband (who under the Civil Code dictates the
regional, and sectoral parties or wife’s domicile).
organizations.
Change of domicile
To successfully effect a change of domicile, there
154
must be:
Cruz, Philippine Political Law.

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o Physical Presence-Residence or Why three years? One purpose in reducing the

bodily presence in the new locality (The term for three years is to synchronize elections,
change of residence must be voluntary) which in the case of the Senate are held at three-
year intervals (to elect one-half of the body) and in
o Animus manendi -Intention to remain the case of the President and Vice-President every
in the new locality (The purpose to remain in six years.155
or at the domicile of choice must be for an
indefinite period of time) Voluntary renunciation of office for any length of
o Animus non revertendi-Intention to time shall not be considered as an interruption in
abandon old domicile the continuity of his service for the full term for
which he was elected.
A lease contract does not adequately support a
change of domicile. The lease does not constitute Abandonment of Dimaporo. The case of
a clear animus manendi. (Domino v. COMELEC) Dimaporo v. Mitra which held that “filing of COC for
However a lease contract coupled with affidavit of a different position is a voluntary renunciation” has
the owner where a person lives, his marriage been abandoned because of the Fair Elections Act.
certificate, birth certificate of his daughter and
various letter may prove that a person has The filing of COC is not constitutive of voluntary
changed his residence. (Perez v. COMELEC) renunciation. (Farinas v. Executive Secretary;
Quinto v. COMELEC, December 1, 2009)
I. Property Qualification
K. Party List System
Property qualifications are contrary to the social Party-list system
justice provision of the Constitution. Such will also Number of Party-list Representatives
be adding qualifications provided by the Manner of Allocating seats for Party list representatives
Constitution. Guidelines
Parties or organizations disqualified
J. Term of Office of Representatives Qualifications of a party-list nominee
Section 7. The members of the Section 5.

House of Representatives shall be (2) The party-list representatives shall
elected for a term of three years constitute twenty per centum of the
which shall begin, unless otherwise total number of representatives
provided by law, at noon on the including those under the party-list.
thirtieth day of June next following For three consecutive terms after the
their election. ratification of this Constitution, one-
No member of the House half of the seats allocated to party-list
Representatives shall serve for more representatives shall be filled, as may
than three consecutive terms. be provided by law, by selection or
Voluntary renunciation of the office election from the labor, peasant,
for any length of time shall not be urban poor, indigenous cultural
considered as an interruption in the communities, women, youth, and
continuity of his service for the full such other sectors as may be
term for which he was elected. provided by law, except the religious
sector.
Term v. Tenure. Term refers to the period during
which an official is entitled to hold office. Tenure 1. Party-list System. (RA 7941) The party-list
refers to the period during which the official actually system is a mechanism of proportional
holds the office. representation in the election of representatives of
the House of Representatives from national,
The term of office of Representatives shall be 3 regional, and sectoral parties or organizations or
years. The term of office of Representatives shall coalitions thereof registered with the Commission
commence on 12:00noon of June 30 next following on Elections.
their election. (unless otherwise provided by law)
Reason for party-list system. It is hoped that the
A Representative may not serve for more than 3 system will democratize political power by
consecutive terms. However, he may serve for encouraging the growth of a multi-party system.
more than 3 terms provided that the terms are not
consecutive. (1996 Bar Question) 2. Number of Party-list representatives
155
Cruz, Philippine Political law.

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Ceiling. “The party-list representatives shall 4. Each party, organization, or coalition

constitute 20% of the total number of shall be entitled to not more than three (3)
representatives.” Section 5(2) of Article VI is not seats.
mandatory. It merely provides a ceiling for party-list
seats in Congress. (Veterans Federation Party v. Veternas Doctrine (Old): The 2% threshold
COMELEC; BANAT v. COMELEC) requirement and the 3 seat-limit provided in RA
7941 are valid. Congress was vested with broad
power to define and prescribe the mechanics of the
party-list system of representation. Congress
No. of seats wanted to ensure that only those parties,
available to organizations and coalitions having sufficient
legislative Number of seats number of constituents deserving of representation
district . available to party- are actually represented in Congress. (Veterans
x 0.20 = list representatives Federation Party v. COMELEC)
.80 BANAT Doctrine (2009): The 2% threshold in the
distribution of additional party-list seat is
unconstitutional. The 2% threshold in the
distribution of additional seats makes it
mathematically impossible to achieve the maximum
number of available party list seats when the
3. Manner of Allocating Seats for Party List number of available party list seats exceeds 50.
Representatives The continued operation of the two percent
The Constitution left to Congress the determination threshold in the distribution of the additional seats
of the manner of allocating the seats for party-list frustrates the attainment of the permissive ceiling
representatives. Congress enacted R.A. 7491. that 20% of the members of the House of
Representatives shall consist of party-list
Procedure in Allocation of Seats for Party-List representatives. (BANAT v. Comelec, G.R. No.
Representatives Under Section 11 of RA 7941: 179295, April 21, 2009) In other words, the two
percent threshold in relation to the distribution of
1. The parties, organizations and the additional seats presents an unwarranted
coalitions shall be ranked from highest to the obstacle to the full implementation of Section 5(2),
lowest based on the number of votes they Article VI of the Constitution and prevents the
garnered during the elections. attainment of the “broadest possible representation
of party, sectoral or group interst in the House of
2. The parties, organizations, and Representatives.” (BANAT v. Comelec, G.R. No.
coalitions receiving at least two percent (2%) 179295, April 21, 2009)
of the total votes cast for the party-list system
shall be entitled to one guaranteed seat 3. Guidelines on what organizations may apply
each.156 in the party-list system:
3. Those garnering more than two (1) The parties or organizations must represent
percent (2%) of the sufficient number of the marginalized and underrepresented in
votes shall be entitled to additional seats in Section 5 of RA 7941;
proportion to their total number of votes until (2) Political parties who wish to participate must
all the additional seats are allocated. comply with this policy;
(changed part was declared unconstitutional (3) The religious sector may not be represented;
by BANAT v. COMELEC)157 (4) The party or organization must not be
disqualified under Section 6 of RA 7941;
156
(5) The party or organization must not be an
The percentage of votes garnered by each party-list adjunct of or a project organized or an entity
candidate is arrived at by dividing the number of votes of funded or assisted by the government;
each party by the total number of votes cast for party-list (6) Its nominees must likewise comply with the
candidates. (BANAT v. COMELEC) requirements of the law;
157
There are two steps in the second round of seat allocation. (7) The nominee must likewise be able to
First, the percentage is multiplied by the remaining available contribute to the formulation and enactment of
seats (which is the difference between the maximum seats legislation that will benefit the nation. (Ang
reserved under the party-list system and the guaranteed seats Bagong Bayani v. COMELEC, June 26, 2001)
of the two-percenters. The whole integer of the product of the
percentage and of the remaining available seats corresponds 4. Parties or organizations disqualified
to a party’s share in the remaining available seats. Second, we
assign one seat to each of the parties next in rank until all
available seats are completely distributed. (BANAT v. COMELEC)

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The COMELEC may motu propio or upon verified Ang Ladlad complies with the requirement
complaint of any interested party, remove or cancel of the Constitution and RA 7941. The
after due notice and hearing the registration of any enumeration of marginalized and under-
national, regional or sectoral party, organization or represented sectors is not exclusive. Ang
coalition on any of the following grounds:
Ladlad sufficiently demonstrated its
5. It is a religious sect or denomination, compliance with the legal requirements
organization or association organized for for accreditation. COMELEC has not
religious purposes;
6. It advocates violence or unlawful
identified any specific over immoral act
means to seek its goal; performed by Ang Ladlad.
7. It is a foreign party or organization;
8. It is receiving support from any
foreign government, foreign political party, 5. Qualifications of a party-list nominee in RA
foundation, organization, whether directly or 7941:
through any of its officers or members or (1) Natural-born citizen of the Philippines;
indirectly through third parties for partisan (2) Registered Voter;
election purposes; (3) Resident of the Philippines for a period of not
9. It violates or fails to comply with laws, less than 1 year immediately preceding the
rules or regulations relating to elections. day of election
10. It declares untruthful statements in its (4) Able to read and write
petition; (5) A bona fide member of the party or organization
11. It has ceased to exist for at least one which he seeks to represent for at least 90
(1) year; days preceding the day of election
12. It fails to participate in the last two (2) (6) At least 25 years of age. (Ang Bagong Bayani v.
preceding elections or fails to obtain at least COMELEC)
two per centum (2%) of the votes cast under
the party-list system in the two (2) preceding Political Parties. Political parties may participate
elections for the constituency in which it has in the party-list system (as long as they comply with
registered. the guidelines in Section 5 of RA 7941.) (Ang
Bagong Bayani v. COMELEC) Major political
Ang Ladlad v. COMELEC, April 8, 2010 parties are disallowed from participating in party-list
elections. (BANAT v. COMELEC, G.R. No. 179295,
April 21, 2009)
Facts: Ang Ladlad is an organization
composed of men and women who Section 10 of RA 7941 provides that the votes cast
identify themselves as lesbians, gays, for a party which is not entitled to be voted for the
bisexuals, or trans-gendered individuals party-list system should not be counted. The votes
(LGBTs). Ang Ladlad argued that the they obtained should be deducted from the
LGBT community is a marginalized and canvass of the total number of votes cast for the
under-represented sector that is party-list system. (Ang Bagong Bayani v.
particularly disadvantaged because of COMELEC)
their sexual orientation and negative Religious sectors v. Religious leaders. There is
societal attitudes, LGBTs are constrained a prohibition of religious sectors. However, there is
to hide their sexual orientation. Ang no prohibition from being elected or selected as
Ladlad applied for registration with sectoral representatives.
COMELEC, but the latter refused to
accredit the former as a party list L. Legislative Districts
organization based on moral grounds. Apportionment
According to the COMELEC Chairman, Reason for the Rule
the party list system is not a tool to Reapportionment
advocate tolerance and acceptance of Gerrymandering
Aquino v. COMELEC (April 7, 2010)
misunderstood persons or group of
persons.
Section 5
(3) Each legislative district shall
Issue: Should Ang Ladlad be granted comprise, as far as practicable,
accreditation? contiguous, compact and adjacent
territory. Each city with a population
Ruling: Yes. of at least two hundred fifty thousand,

SCHOOL OF LAW
or each province, shall have at least Gerrymandering is the formation of one legislative
one representative. district out of separate territories for the purpose of
(4) Within three years following the favoring a candidate or a party.
return of every census, the Congress
shall make a reapportionment of Gerrymandering is not allowed. The Constitution
legislative districts based on the provides that each district shall comprise, as far as
standards provided in this section. practicable, contiguous, compact and adjacent
territory.
1. Apportionment
Legislative districts are apportioned among the 5. Aquino v. COMELEC (2010)
provinces, cities, and the Metropolitan Manila area. Main Opinion, J. Perez: A population of 250,000 is
not an indispensable constitutional requirement for
Legislative districts are apportioned in accordance the creation of a new legislative district in a
with the number of their respect inhabitants and on province. (Aquino v. COMELEC, GR No. 189793;
the basis of a uniform and progressive ratio. (art. 6 April 7, 2010)
§ 5)
Dissenting Opinion, J. Carpio: Although textually
Each city with a population of at least 250,000 shall relating to cities, this minimum population
have at least one representative. requirement applies equally to legislative districts
apportioned in provinces and the Metropolitan
Each province shall have at least one Manila area because of the constitutional
representative. command that “legislative districts [shall be]
apportioned among the provinces, cities, and the
The question of the validity of an apportionment Metropolitan Manila area in accordance with the
law is a justiciable question. (Macias v. Comelec) number of their respective inhabitants, and on the
basis of a uniform and progressive ratio.”
2. Reason for the rule. The underlying principle
behind the rule for apportionment (that In short, the constitutional “standards” in the
representative districts are apportioned among apportionment of legislative districts under Section
provinces, cities, and municipalities in accordance 5 of Article VI, as far as population is concerned,
with the number of their respective inhabitants, and are: (1) proportional representation; (2) a minimum
on the basis of a uniform and progressive ration.”) “population of at least two hundred fifty thousand”
is the concept of equality of representation per legislative district; (3) progressive ratio in the
which is a basic principle of republicanism. One increase of legislative districts as the population
man’s vote should carry as much weight as the base increases; and (4) uniformity in the
vote of every other man. apportionment of legislative districts in “provinces,
cities, and the Metropolitan Manila area.”
Section 5 provides that the House shall be
composed of not more than 250 members unless The directive in Section 5(3) of Article VI that “each
otherwise provided by law. Thus, Congress itself province, shall have at least one representative”
may by law increase the composition of the HR. means only that when a province is created, a
(Tobias v. Abalos) legislative district must also be created with it. Can
this district have a population below 250,000? To
When one of the municipalities of a congressional answer in the affirmative is to ignore the
district is converted to a city large enough to entitle constitutional mandate that districts in provinces be
it to one legislative district, the incidental effect is apportioned “in accordance with the number of
the splitting of district into two. The incidental their respective inhabitants, and on the basis of a
arising of a new district in this manner need not be uniform and progressive ratio.” (Aquino v.
preceded by a census. (Tobias v. Abalos) COMELEC, GR No. 189793; April 7, 2010)
3. Reapportionment See Dinagat Islands Province case: Navarro v.

Reapportionment can be made thru a special law. Ermitta, G.R. No. 180050, April 12, 2011.
(Mariano v. COMELEC)
Correction of imbalance as a result of the increase M. Election

in number of legislative districts must await the 1. Regular Election
enactment of reapportionment law. (Montejo v. 2. Special Election
COMELEC)
Section 8. Unless otherwise provided
4. Gerrymandering by law, the regular election of the
Senators and the Members of the

SCHOOL OF LAW
House of Representatives shall be b. at least one (1) year before the next
held on the second Monday of May. regular election members of Congress
2. The particular House of Congress
Regular election where vacancy occurs must pass either a
A person holding office in the House must yield his resolution if Congress is in session or the
or her seat to the person declared by the Senate President or the Speaker must sign a
COMELEC to be the winner. The Speaker shall certification, if Congress is not in session,
administer the oath to the winner. (Codilla v. De a. declaring the existence of vacancy;
Venecia) b. calling for a special election to be held
within 45 to 90 days from the date of the
Disqualified “winner” resolution or certification.
The Court has also clarified the rule on who should 3. The Senator or representative elected
assume the position should the candidate who shall serve only for the unexpired term.
received the highest number of votes is
disqualified. The second in rank does not take his N. Salaries
place. The reason is simple: “It is of no moment When increase may take effect
that there is only a margin of 768 votes between Reason fro the delayed effect of increased salary
protestant and protestee. Whether the margin is Emoluments
ten or ten thousand, it still remains that protestant Allowances
did not receive the mandate of the majority during
the elections. Thus, to proclaim him as the duly Section 10. The salaries of Senators
elected representative in the stead of protestee and Members of the House of
would be anathema to the most basic precepts of Representatives shall be determined
republicanism and democracy as enshrined within by law. No increase in said
our Constitution.”158 compensation shall take effect until
after the expiration of the full term of
Section 9. In case of vacancy in the all the members of the Senate and
Senate or in the House of the House of Representatives
Representatives, a special election approving such increase.
may be called to fill such vacancy in
the manner prescribed by law, but the 1. When increase may take effect. No increase in
Senator or Member of the House of the salaries of Senators and Representatives shall
Representatives thus elected shall take effect until after the expiration of the full term
serve only for the unexpired term. of all the members of the Senate and House of
Special election Representatives.
A special election to fill in a vacancy is not
mandatory. 2. Reason for the delayed effect of increased
salary. Its purpose is to place a “legal bar to the
In a special election to fill a vacancy, the rule is that legislators’ yielding to the natural temptation to
a statute that expressly provides that an election to increase their salaries. (PHILCONSA v. Mathay)
fill a vacancy shall be held at the next general
elections, fixes the date at which the special 3. Emoluments. Bernas submits that, by appealing
election is to be held and operates as the call for to the spirit of the prohibition, the provision may be
that election. Consequently, an election held at the read as an absolute ban on any form of direct or
time thus prescribed is not invalidated by the fact indirect increase of salary (like emoluments).
that the body charged by law with the duty of
calling the election failed to do so. This is because 4. Allowances. A member of the Congress may
the right and duty to hold the election emanate receive office and necessary travel allowances
from the statue and not from any call for election by since allowances take effect immediately. Nor is
some authority and the law thus charges voters there a legal limit on the amount that may be
with knowledge of the time and place of the appropriated. The only limit is moral, because,
election. (Tolentino v. COMELEC) according to Section 20, the books of Congress are
audited by the Commission on Audit ‘which shall
Special Election (R.A. 6645) publish annually an itemized list of amounts paid
1. No special election will be called if and expenses incurred for each Member.159
vacancy occurs:
a. at least eighteen (18) months before the IV. PRIVILEGES OF MEMBERS
next regular election for the members of
the Senate; A. Privilege from Arrest
158 159
Ocampo v. HRET, G.R. No. 158466. June 15, 2004. Bernas Commentary, p700.

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B. Parliamentary freedom of speech against harassment which will keep him away from
and debate legislative sessions, there is no point in extending
the privilege to the period when the Congress is
Section 11. A Senator or Member of not in session.
the House of Representatives shall,
in all offenses punishable by not more 5. Privilege is personal. Privilege is personal to
than six years imprisonment, be each member of the legislature, and in order that
privileged from arrest while the its benefits may be availed of, it must be asserted
Congress is in session. No member at the proper time and place; otherwise it will be
shall be questioned nor be held liable considered waived.162
in any other place for any speech or
debate in the Congress or in any Privilege not granted to Congress but to its
committee thereof. members. Privilege from arrest is not given to
Congress as a body, but rather one that is granted
A. Privilege from Arrest (Parliamentary Immunity of particularly to each individual member of it. (Coffin
Arrest) v. Coffin, 4 Mass 1)163
Privilege
Privilege is reinforced by Article 145 of the Revised
Purpose
Penal Code-Violation of Parliamentary Immunity.
Scope
Limitations
Note: The provision says privilege from arrest; it
Privilege is Personal
does not say privilege from detention.
Trillanes Case
Q: Congressman Jalosjos was convicted for
1. Privilege. A member of Congress is privileged
rape and detained in prison, asks that he be
from arrest while Congress is in session in all
allowed to attend sessions of the House.
offenses (criminal or civil) not punishable by more
A: Members of Congress are not exempt
than 6 years imprisonment.
from detention for crime. They may be
arrested, even when the House in session,
2. Purpose. Privilege is intended to ensure
for crimes punishable by a penalty of more
representation of the constituents of the member of
than six months.
Congress by preventing attempts to keep him from
attending sessions.160
Q: Congressman X was convicted for a
crime with a punishment of less than 6
3. Scope. Parliamentary immunity only includes
years. He asks that he be allowed to attend
the immunity from arrest, and not of being filed suit.
sessions of the House contending that the
punishment for the crime for which he was
4. Limitations on Parliamentary Immunity
convicted is less than 6 years.
1. Crime has a maximum penalty of not more
A: I submit that Congressman X can be
than 6 years;
detained even if the punishment imposed is
2. Congress is in session, whether regular or
less than 6 years. The provision only speaks
special;
of privilege from arrest. It does not speak of
3. Prosecution will continue independent of
exemption from serving sentence after
arrest;
conviction. Members of Congress are not
4. Will be subject to arrest immediately when exempt from detention for crime.-asm
Congress adjourns.
While in session. The privilege is available “while Q: Can the Sandiganbayan order the
the Congress is in session,” whether regular or preventive suspension of a Member of the
special and whether or not the legislator is actually House of Representatives being prosecuted
attending a session. “Session” as here used does criminally for violation of the Anti-Graft and
not refer to the day-to-day meetings of the Corrupt Practices Act?
legislature but to the entire period from its initial A: Yes. In Paredes v. Sandiganbayan, the
convening until its final adjournment.161 Hence the Court held that the accused cannot validly
privilege is not available while Congress is in argue that only his peers in the House of
recess. Representatives can suspend him because
the court-ordered suspension is a preventive
Why not available during recess. Since the measure that is different and distinct from
purpose of the privilege is to protect the legislator
160 162
Cruz, Philippine Political Law. Sinco, Philippine Political Law, p. 187, 10th ed.
161 163
Cruz, Philippine Political Law. Sinco, Philippine Political Law, p. 187, 10th ed.

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the suspension ordered by his peers for

disorderly behavior which is a penalty. Libelous remarks not in exercise of legislative
function shall not be under privilege of speech.
6. Trillanes Case (June 27, 2008) To invoke the privilege of speech, the matter must
In a unanimous decision penned by Justice Carpio
Morales, the SC en banc junked Senator Antonio Trillanes’ be oral and must be proven to be indeed
petition seeking that he be allowed to perform his duties as a privileged.
Senator while still under detention. SC barred Trillanes from
attending Senate hearings while has pending cases, affirming 2. Purpose. It is intended to leave legislator
the decision of Makati Judge Oscar Pimentel. unimpeded in the performance of his duties and
The SC reminded Trillanes that “election to office does free form harassment outside.167
not obliterate a criminal charge”, and that his electoral victory
only signifies that when voters elected him, they were already
Privilege of speech and debate enables the
fully aware of his limitations.
The SC did not find merit in Trillanes’ position that his legislator to express views bearing upon the public
case is different from former representative Romeo Jalosjos, interest without fear of accountability outside the
who also sought similar privileges before when he served as halls of the legislature for his inability to support his
Zamboanga del Norte congressman even while in detention. statements with the usual evidence required in the
Quoting parts of the decision on Jalosjos, SC said that court of justice. In other words, he is given more
“allowing accused-appellant to attend congressional sessions leeway than the ordinary citizen in the ventilation of
and committee meetings five days or more a week will virtually matters that ought to be divulged for the public
make him a free man… Such an aberrant situation not only
good.168
elevates accused appellant’s status to that of a special class, it
would be a mockery of the purposes of the correction system.”
The SC also did not buy Trillanes’ argument that he be To enable and encourage a representative of the
given the same liberal treatment accorded to certain detention public to discharge his public trust with firmness
prisoners charged with non-bailable offenses, like former and success" for "it is indispensably necessary that
President Joseph Estrada and former Autonomous Region in he should enjoy the fullest liberty of speech and
Muslim Mindanao (ARMM) governor Nur Misuari, saying these that he should be protected from resentment of
emergency or temporary leaves are under the discretion of the every one, however, powerful, to whom the
authorities or the courts handling them.
exercise of that liberty may occasion offense.
The SC reminded Trillanes that he also benefited from
these “temporary leaves” given by the courts when he was (Osmena V. Pendatun cited in Pobre v. Defensor-
allowed to file his candidacy and attend his oath-taking as a Santiago, 2009)
senator before.
The SC also believes that there is a “slight risk” that 3. Scope:169
Trillanes would escape once he is given the privileges he is (1) The privilege is a protection only against
asking, citing the Peninsula Manila incident last November. forums other than the Congress itself.
(Osmena v. Pendatun)
B. Privilege of Speech and Debate (2) “Speech or debate” includes utterances
Requirements made in the performance of official functions,
Purpose such as speeches delivered, statements
Scope made, votes cast, as well as bills introduced
Privilege Not Absolute and other acts done in the performance of
official duties. (Jimenez v. Cabangbang)
1. Isagani Cruz: 2 Requirements for the (3) To come under the privilege, it is not
privilege to be availed of: essential that the Congress be in session
1. That the remarks must be made while the when the utterance is made. What is essential
legislature or the legislative committee is is that the utterance must constitute
functioning, that is in session;164 (See Jimenez v. “legislative action”, that is, it must be part of
Cabangbang) the deliberative and communicative process by
2. That they must be made in connection with the which legislators participate in committee or
discharge of official duties.165 congressional proceedings in the
consideration of proposed legislation or of
But wait! As regards Requirement #1 provided other matters which the Constitution has
by Cruz, Bernas Primer provides: to come placed within the jurisdiction of Congress.
under the privilege, it is not essential that the (Gravel v. US)
Congress be in session when the utterance is
made. What is essential is that the utterance (4) The privilege extends to agents of
must constitute “legislative action.”166 assemblymen provided that the “agency”
consists precisely in assisting the legislator in
164
Cruz, Philippine Political Law p. 116 (1995 ed.); See Jimenez v.
167
Cabangbang. Bernas Primer, p. 245 (2006).
165 168
Cruz, Philippine Political Law p. 116 (1995 ed.). Cruz, Philippine Political Law.
166 169
Bernas Primer, p. 245 (2006 ed.) Bernas Primer, p. 245 (2006 ed.)

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the performance of “legislative action” (Gravel B. Prohibitions

v. US)
A. Duty to disclose
4. Privilege not absolute. The rule provides that
the legislator may not be questioned “in any other Section 12. All members of the
place,” which means that he may be called to Senate and the House of
account for his remarks by his own colleagues in Representative shall, upon
the Congress itself and, when warranted, punished assumption of office, make a full
for “disorderly behavior.”170 disclosure of their financial and
business interests. They shall notify
5. Parliamentary Freedom of Speech v SC’s the House concerned of a potential
Power to Discipline conflict of interest that may arise from
Facts: Senator Miriam Defensor-Santiago made the filing of a proposed legislation of
this speech on the Senate floor. “x x x I am not which they are authors.
angry. I am irate. I am foaming in the mouth. I am
homicidal. I am suicidal. I am humiliated, debased, This provision speaks of duty to disclose the
degraded. And I am not only that, I feel like following:
throwing up to be living my middle years in a
country of this nature. I am nauseated. I spit on the (1) Financial and business interest upon
face of Chief Justice Artemio Panganiban and his assumption of office
cohorts in the Supreme Court, I am no longer (2) Potential conflict of interest that may arise
interested in the position [of Chief Justice] if I was from filing of a proposed legislation of which
to be surrounded by idiots. I would rather be in they are authors.
another environment but not in the Supreme Court
of idiots x x x. “ Pobre asks that disbarment
proceedings or other disciplinary actions be taken B. Prohibitions (Disqualifications and Inhibitions)
against the lady senator. Prohibitions
Disqualifications
Issue: May Senator Santiago be disbarred or be Prohibitions on lawyer-legislators
imposed with disciplinary sanction for her Conflict of interests
intemperate and highly improper speech made on
the senate floor? Disqualifications
Section 13. No Senator or Member
Held: No. A lawyer-senator who has crossed the of the House of Representatives may
limits of decency and good professional conduct by hold any other office or employment
giving statements which were intemperate and in the government, or any
highly improper in substance may not be disbarred subdivision, agency, or
or be imposed with disciplinary sanctions by the instrumentality thereof, including
Supreme Court. government-owned or controlled
corporation or their subsidiaries,
It is true that parliamentary immunity must not be during his term without forfeiting his
allowed to be used as a vehicle to ridicule, seat. Neither shall he be appointed to
demean, and destroy the reputation of the Court any office which may have been
and its magistrates, nor as armor for personal created or the emoluments thereof
wrath and disgust. However, courts do not interfere increased during the term for which
with the legislature or its members in the manner he was elected.
they perform their functions in the legislative floor
or in committee rooms. Any claim of an unworthy
purpose or of the falsity and mala fides of the
statement uttered by the member of the Congress Section 14. No Senator or Member
does not destroy the privilege. The disciplinary of the House of Representatives may
authority of the assembly and the voters, not the personally appear as counsel before
courts, can properly discourage or correct such any court of justice or before the
abuses committed in the name of parliamentary Electoral Tribunals, or quasi-judicial
immunity. (Pobre v. Defensor-Santiago, 2009) and other administrative bodies.
Neither shall he, directly or indirectly,
be interested financially in any
V. DUTY TO DISCLOSE; PROHIBITIONS
contract with, or in any franchise or
special privilege granted by the
A. Duty to Disclose Government, or any subdivision,
agency or instrumentality thereof,
170
Cruz, Philippine Political Law; See Osmena v. Pendatun. including any government-owned or

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controlled corporation, or its holding of that office and the seat in Congress.171
subsidiary, during his term of office. Hence, a member of Congress may resign in order
He shall not intervene in any matter to accept an appointment in the government before
before any office of the Government the expiration of his term.172
for his pecuniary benefit or where he
may be called upon to act on account When office not incompatible. Not every other
of his office. office or employment is to be regarded as
incompatible with the legislative position. For,
1. Prohibitions: example, membership in the Electroral Tribunals is
permitted by the Constitution itself. Moreover, if it
Disqualifications
can be shown that the second office is an
(1) To hold any other office or extension of the legislative position or is in aid of
employment in the government, or any legislative duties, the holding thereof will not result
subdivision, agency, or instrumentality in the loss of the legislator’s seat in the
thereof, including government-owned or Congress.173
controlled corporation or their subsidiaries
during his term without forfeiting his Forbidden Office.
seat. (Incompatible office) Purpose. The purpose is to prevent trafficking in
(2) To be appointed to any office which public office.174 The reasons for excluding persons
may have been created or the from office who have been concerned in creating
emoluments thereof increased during the them or increasing the emoluments are to take
term for which he was elected. (Forbidden away as far as possible, any improper bias in the
office) vote of the representative and to secure to the
Prohibitions on lawyer-legislators constituents some solemn pledge of his
(3) To personally appear as counsel disinterestedness.175
before any court of justice or before the
Scope of prohibition. The provision does not
Electoral Tribunals, or quasi-judicial and
apply to elective offices, which are filled by the
other administrative bodies.
voters themselves.
Conflict of Interests
(4) To be interested financially, directly The appointment of the member of the Congress to
or indirectly, in any contract with, or in the forbidden office is not allowed only during the
any franchise or special privilege term for which he was elected, when such office
granted by the Government, or any was created or its emoluments were increased.
subdivision, agency or instrumentality After such term, and even if the legislator is re-
thereof, including any government-owned elected, the disqualification no longer applies and
or controlled corporation, or its subsidiary, he may therefore be appointed to the office.176
during his term of office.
(5) To intervene in any matter before 3. Prohibition on lawyer legislators.
any office of the Government for his
pecuniary benefit or intervene in any Purpose. The purpose is to prevent the legislator
matter before any office of the from exerting undue influence, deliberately or not,
Government where he may be called upon the body where he is appearing.177
upon to act on account of his office.
(6) See Section 10 Not a genuine party to a case. A congressman
may not buy a nominal account of shares in a
2. Disqualifications corporation which is party to a suit before the SEC
and then appear in “intervention”. That which the
Incompatible Office Constitution directly prohibits may not be done by
Purpose. The purpose of prohibition of indirection. (Puyat v. De Guzman)
incompatible offices is to prevent him from owing
loyalty to another branch of the government, to the
detriment of the independence of the legislature
171
and the doctrine of separation of powers. Cruz, Philippine Political Law.
172
2 Kinds of Office under Article 13 Bernas Primer, p.246 (2006).
1) Incompatible office (1st sentence of article 13) 173
2) Forbidden office (2nd sentence of article 13) 174
175
Mr. Justice Story quoted in Sinco, Philippine Political Law, p.
Prohibition not absolute. The prohibition against 163 (1954).
the holding of an incompatible office is not 176
absolute; what is not allowed is the simultaneous 177

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Prohibition is personal. It does not apply to law session, unless a different date is
firm where a lawyer-Congressman may be a fixed by law, and shall continue to be
member.178 The lawyer-legislator may still engage in session for such number of days as
in the practice of his profession except that when it it may determine until thirty days
come to trials and hearings before the bodies before the opening of its next regular
above-mentioned, appearance may be made not session, exclusive of Saturdays,
by him but by some member of his law office.179 Sundays, and legal holidays. The
President may call a special session
Pleadings. A congressman cannot sign pleadings at any time.
[as counsel for a client] (Villegas case)
Regular session
4. Conflict of Interests Congress shall convene once every year for its
regular session.
Financial Interest
Purpose. This is because of the influence they can Congress shall convene on the 4th Monday of July
easily exercise in obtaining these concessions. The (unless a different date is fixed by law) until 30
idea is to prevent abuses from being committed by days (exclusive of Saturdays, Sundays and legal
the members of Congress to the prejudice of the holidays) before the opening of the next regular
public welfare and particularly of legitimate session.
contractors with the government who otherwise
might be placed at a disadvantageous position vis- Special session
à-vis the legislator. A special session is one called by the President
while the legislature is in recess.
Contract. The contracts referred to here are those
involving “financial interest,” that is, contracts from Mandatory recess. A mandatory recess is
which the legislator expects to derive some profit at prescribed for the thirty-day period before the
the expense of the government.180 opening of the next regular session, excluding
Saturdays, Sundays and legal holidays. This is the
Pecuniary Benefit. The prohibited pecuniary minimum period of recess and may be lengthened
benefit could be direct or indirect and this would by the Congress in its discretion. It may however,
cover pecuniary benefit for relatives. (Bernas be called in special session at any time by the
Commentary, p. 710, 10th ed.) President.
VI. INTERNAL GOVERNMENT OF CONGRESS The President’s call is not necessary in some
instances:
1. When the Congress meets to
Sessions canvass the presidential elections
Adjournment 2. To call a special election when both
Officers the Presidency and Vice-Presidency are
Quorum vacated
Internal Rules 3. When it decides to exercise the
Disciplinary Powers power of impeachment where the respondent
Legislative Journal and Congressional Record is the President himself.181
Enrolled Bill Doctrine
Q: May the President limit the subjects which
A. Sessions may be considered during a special election
1. Regular called by him?
2. Special A: No. The President is given the power to
3. Joint Sessions call a session and to specify subjects he
wants considered, but it does not empower
him to prohibit consideration of other
Section 15. The Congress shall
subjects. After all, Congress, if it so wishers,
convene once every year on the
may stay in regular session almost all year
fourth Monday of July for its regular
round.182
178
Bernas Primer, p.247 (2006). Joint Sessions
179 a. Voting Separately
Cruz. Philippine Political Law.
180 i) Choosing the President (art. 7 §4)
Cruz, Philippine Political Law. Legislators cannot be members of
the board of corporations with contract with the government. Such 181
would be at least indirect financial interest. (Bernas Commentary, p. Cruz, Philippine Political Law,
182
710, 10th ed.) Bernas Commentary, p.711, (2003 ed.)

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ii) Determine President’s disability (art. 7 §11) C. Officers

iii) Confirming nomination of the Vice-President
(art. 7 §9) Section 16. (1) The Senate shall
iv) Declaring the existence of a state of war (art. elect its President and the House of
6 §23) Representatives its Speaker, by a
v) Proposing constitutional amendments (art. 12 majority vote of all its respective
§1) Members.
b. Voting Jointly Each House shall choose such other
To revoke or extend proclamation suspending officers as it may deem necessary.
the privilege of the writ of habeas corps or
placing the Philippines under martial law. (art 7 Officers of the Congress:
§18) (1) Senate President
(2) House Speaker
Instances when Congress votes other than (3) Such other officers as each House may deem
majority. necessary.
a. To suspend or expel a member in
accordance with its rules and proceedings: 2/3 It is well within the power and jurisdiction of the
of all its members (Sec. 16, Art. VI). Court to inquire whether the Senate or its officials
b. Yeas and nays entered in the Journal: 1/5 committed a violation of the Constitution or gravely
of the members present (Sec. 16(4), Art. VI) abused their discretion in the exercise of their
c. Declare the existence of a state of war: functions and prerogatives. (Santiago v. Guingona)
2/3 of both houses in joint session voting
separately (Sec. 23, Art. VI) The method of choosing who will be the other
d. Re-passing of a bill after Presidential veto: officers must be prescribed by Senate itself. In the
2/3 of the Members of the House where it absence of constitutional and statutory guidelines
originated followed by 2/3 of the Members of or specific rules, this Court is devoid of any basis
the other House. upon which to determine the legality of the acts of
e. Determining President’s disability after the Senate relative thereto. On grounds of respect
submissions by both the Cabinet and the for the basic concept of separation of powers,
President: 2/3 of both Houses voting courts may not intervene in the internal affairs of
separately (Sec. 11, Art. VII) the legislature; it is not within the province of courts
to direct Congress how to do its work. (Santiago v.
B. Adjournment Guingona)
Section 16 D. Quorum
(5) Neither House during the session
of the Congress shall, without the Section 16
consent of the other, adjourn for more (2) A majority of each House shall
than three days, nor to any other constitute a quorum to do business,
place than that in which the two but a smaller number may adjourn
Houses shall be sitting. from day to day and may compel the
attendance of absent Members in
Either House may adjourn even without the such manner and under such
consent of the other provided that it will not be penalties, as such House may
more than three days. provide.
If one House should adjourn for more than three Quorum to do business. A majority of each
days, it will need the consent of the other. House shall constitute a quorum to do business.
Neither house can adjourn to any other place than Quorum is based on the proportion between those
that in which the two Houses shall be sitting without physically present and the total membership of
the consent of the other. the body.
Reason. These rules prevent each house from A smaller number may adjourn from day to day.
holding up the work of legislation.183 This
coordinative rule is necessary because the two A smaller number may compel the attendance of
houses form only one legislative body.184 absent members in such manner and under such
penalties as the House may provide.
183
Sinco, Philippine Political Law, p 170 (1954). The members of the Congress cannot compel
184
Bernas Commentary, p.723, (2003 ed.) absent members to attend sessions if the reason of

SCHOOL OF LAW
absence is a legitimate one. The confinement of a Corrupt Practices Act is distinct from the power of
Congressman charged with a non-bailable offense congress to police its own ranks under the
(more than 6 years) is certainly authorized by law Constitution. The suspension contemplated in the
and has constitutional foundations. (People v. constitutional provisions is a punitive measure that
Jalosjos) is imposed upon determination by a House upon
an erring member. The suspension spoken in
The question of quorum cannot be raised AGCPA is not a penalty but a preventive measure.
repeatedly, especially when a quorum is obviously The doctrine of separation of powers by itself may
present, for the purpose of delaying the business of not be deemed to have excluded members of
the House. (Arroyo v. De Venecia, June 26, 1998) Congress from AGCPA. The law did not exclude
from its coverage the members of the Congress
E. Internal Rules and therefore the Sandiganbayan may decree a
Power to determine rules preventive suspension order. (Santiago v.
Nature of the rules Sandiganbayan) (2002 Bar Question)
Role of courts
2/3 Requirement. Each House may with the
Section 18 concurrence of two-thirds of all its Members,
(3) Each House may determine the suspend or expel a Member.
rules of its proceedings, punish its
Members for disorderly behavior, and Period of suspension. A penalty of suspension,
with the concurrence of two-thirds of when imposed, shall not exceed sixty days.
all its Members, suspend or expel a
Member. A penalty of suspension, Not subject to judicial review. Disciplinary action
when imposed, shall not exceed sixty taken by Congress against a member is not subject
days. to judicial review because each House is the sole
judge of what disorderly behavior is. (Osmena v.
Pendatun)
1. Power to determine internal rules. Each
House may determine the rules of its proceedings.
G. Legislative Journal and Congressional Record
2. Nature of the Rules. The rules adopted by
deliberative bodies (such as the House) are subject Requirement
to revocation, modification, or waiver by the body Journal
adopting them. (Arroyo v. De Venecia) Purpose of Journal
What may be excluded
The power to make rules is not one, once Matters to be entered to the journal
exercised is exhausted. It is a continuous power, Journal v. Extraneous Evidence
always subject to be exercised by the House, and Record
within the limitations suggested and absolutely
beyond the challenge of any other body. (Arroyo v. Section 18
De Venecia) (4) Each House shall keep a Journal
of its proceedings, and from time to
3. Role of Courts. The Court may not intervene in time publish the same, excepting
the implementation of the rules of either House such parts as may, in its judgment,
except if the rule affects private rights. On matters affect national security; and the yeas
affecting only internal operation of the legislature, and nays on any question shall, at the
the legislature’s formulation and implementation of request of one-fifth of the Members
its rules is beyond the reach of the courts. When, present, be entered in the Journal.
however, the legislative rule affects private rights, Each House shall also keep a Record
the courts cannot altogether be excluded. (US v. of its Proceedings.
Smith)
1. Requirement. Each House shall keep a Journal
of its proceedings, and from time to time publish
F. Disciplinary powers (suspension/expulsion) the same.
Basis for punishment. Each House may punish 2. What is a journal? The journal is usually an
its Members for disorderly behavior. abbreviated account of the daily proceedings.185 A
legislative journal is defined as “the official record
Preventive Suspension v. Punitive Suspension. of what is ‘done and past’ in a legislative [body]. It
A congressman may be suspended as a preventive is so called because the proceedings are entered
measure by the Sandiganbayan. The order of
suspension prescribed by the Anti-Graft and 185
Bernas Commentary, p.723, (2003 ed.)

SCHOOL OF LAW
therein, in chronological order as they occur from enrolled, the SC may not inquire beyond the
day to day.186 certification and approval of the bill, and the
enrolled bill is conclusive upon the judiciary (Phil.
3. Purpose of the requirement that a journal be Judges Association v. Prado)
kept:
(1) To insure publicity to the proceedings of the 3. Underlying Principle of the Doctrine. Court is
legislature, and a correspondent responsibility bound under the doctrine of separation of
of the members of their respective powers by the contents of a duly authenticated
constituents; and measure of the legislature. (Mabanag v. Lopez
(2) To provide proof of what actually transpired in Vito, Arroyo v. De Venecia)
the legislature. (Field v. Clark)
4. Enrolled bill vs. Journal Entry: The enrolled
4. What may be excluded. The Constitution bill is the official copy of approved legislation and
exempts from publication parts which in the bears the certification of the presiding officers of
judgment of the House affect national security. the legislative body. The respect due to a co-equal
department requires the courts to accept the
5. Matters which, under the Constitution, are to certification of the presiding officer as conclusive
be entered in the journal: assurance that the bill so certified is authentic.
1. Yeas and nays on (Casco Philippine Chemical Co. v. Gimenez)
third and final reading of a bill. However, If the presiding officer should repudiate
2. Veto message of the his signature in the “enrolled bill”, the enrolled will
President not prevail over the Journal. This is because the
3. Yeas and nays on the enrolled bill theory is based mainly on the respect
repassing of a bill vetoed by the President due to a co-equal department. When such co-equal
4. Yeas and nays on department itself repudiates the enrolled bill, then
any question at the request of 1/5 of members the journal must be accepted as conclusive.
present
5. Enrolled bill v. Matters required to be entered
6. Journal vs. Extraneous evidence. The Journal in the journals. The Supreme Court has explicitly
is conclusive upon the Courts (US v. Pons) left this matter an open question in Morales v.
Subido.188
7. What is a Record? The Record contains a word
for word transcript of the deliberation of 6. Remedy for Mistakes. If a mistake was made in
Congress.187 printing of the bill before it was certified by
Congress and approved by the President, the
H. Enrolled bill doctrine remedy is amendment or corrective legislation, not
Enrolled Bill judicial decree. (Casco (Phil) Chemical Co.
Enrolled Bill Doctrine Gimenez)
Underlying Principle
Enrolled Bill v. Journal Entry VII. Electoral Tribunals, CA
Enrolled bill v. matters required to be entered in the
journals
Remedy for Mistakes Electoral Tribunal
CA
1. Enrolled Bill. One which has been duly Constitution of ET and CA
introduced, finally passed by both houses, signed
by the proper officers of each, approved by the A. Electoral Tribunal
[president]. (Black Law Dictionary) Electoral Tribunals
Composition
2. Enrolled bill doctrine: The signing of a bill by Rationale
the Speaker of the House and the Senate Independence
President and the certification by the secretaries of Security of Tenure
both Houses of Congress that such bill was passed Power
are conclusive of its due enactment. (Arroyo v. De Jurisdiction of ET
Venecia) Jurisdiction of COMELEC
Judicial Review
Where the conference committee report was
approved by the Senate and the HR and the bill is 188
Bernas Primer, p. 251 (2006 ed.); Cruz in his book says: “But
except only where the matters are required to be entered in the
186 journals, the contents of the enrolled bill shall prevail over those of
Sinco, Philippine Political Law 191, (1954). the journal in case of conflict. (Page 129 Philippine Political Law
187
Bernas Commentary, p.723, (2003 ed.) (1995 ed).

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SET cannot legally function absent its entire

Section 17. The Senate and the membership of senators, and no amendment of its
House of Representatives shall each rules can confer on the 3 remaining justice-
have an Electoral Tribunal which shall members alone, the power of valid adjudication of
be the sole judge of all contests senatorial election contest. (Abbas v. SET)
relating to the election, returns, and
qualifications of their respective 4. Independence. The Congress may not regulate
Members. Each electoral tribunal the actions of the electoral tribunals even in
shall be composed of nine members, procedural matters. The tribunal is an independent
three of whom shall be Justices of the constitutional body. (Angara v. Electoral
Supreme Court to be designated by Commission)
the Chief Justice, and the remaining
six shall be members of the Senate or 5. Security of Tenure. Members of ET have
the House of Representatives, as the security of tenure. Disloyalty to the party is not a
case may be, who shall be chosen on ground for termination. (Bondoc v. Pineda) (2002
the basis of proportional Bar Question)
representation from the political
parties and the parties or 6. Power. The Electoral Tribunal shall be the sole
organizations registered under the judge of all contests relating to the election,
party-list system represented therein. returns, and qualifications of their respective
The senior justice in the Electoral members.
tribunal shall be its Chairman. The tribunal has the power to promulgate rules
relating to matters within its jurisdiction, including
1. Two Electoral Tribunals. The Senate and the period for filing election protests. (Lazatin v. HET)
House of Representatives shall each have an Electoral Tribunal has incidental power to
Electoral Tribunal promulgate its rules and regulations for the proper
exercise of its function (Angara v. Electoral
2. Composition of ET Commission)
Each electoral tribunal shall be composed of 9
members. 3 from the SC (to be designated by the 7. Jurisdiction of Electoral Tribunal
CJ) and 6 from the respective House. The Electoral Tribunal shall be the sole judge of all
contests relating to the election, returns, and
3. Why create an electoral tribunal independent qualifications of their respective members.
from Congress. It is believed that this system
tends to secure decisions rendered with a greater The jurisdiction of HRET is not limited to
degree of impartiality and fairness to all parties. It constitutional qualifications. The word
also enables Congress to devote its full time to the “qualifications” cannot be read to be qualified by
performance of its proper function, which is the term “constitutional”. Where the law does not
legislation, rather than spend part of its time acting distinguish, the courts should likewise not. The
as judge of election contests.189 filing of a certificate of candidacy is a statutory
qualification.(Guerrero v. COMELEC)
Proportional Representation. The congressmen
who will compose the electoral tribunal shall be Where a person is contesting the proclamation of a
chosen on the basis of proportional representation candidate as senator, it is SET which has exclusive
from the political and party-list parties. jurisdiction to act. (Rasul v. COMELEC)
Reason for Mixed Membership. The presence of Contest after proclamation is the jurisdiction of
justices of the Supreme Court in the Electoral HRET (Lazatin v. COMELEC)
Tribunal neutralizes the effects of partisan
influences in its deliberations and invests its action When there is an election contest (when a
with that measure of judicial temper which is defeated candidate challenge the qualification and
greatly responsible for the respect and confidence claims the seat of a proclaimed winner), the
people have in courts.190 Electoral Tribunal is the sole judge.
Chairman. The senior Justice in the electoral Errors that may be verified only by the opening of
tribunal shall be its Chairman. ballot boxes must be recoursed to the electoral
tribunal.
Once a winning candidate has been proclaimed,

189 taken his oath and assumed office as a member of
Sinco, Philippine Political Law, p.158 (1954).
190
the House, COMELEC’s jurisdiction over election
Sinco, Philippine Political Law, p.158 (1954).

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contest relating to his election, returns and the Speaker is duty bound to administer the oath193.
qualifications ends, and the HRET’s own The Speaker shall administer the oath on the
jurisdiction begins. (Aggabao v. COMELEC) winner.
Nature of election contests. An election is not like In election contests, however, the jurisdiction of the
an ordinary action in court. Public interests rather COMELEC ends once a candidate has been
than purely private ones are involved in its proclaimed and has taken his oath of office as a
determination.191 It is therefore not permissible that Member of Congress. Jurisdiction then passes to
such a contest be settled by stipulation between the Electoral Tribunal of either the House or the
the parties, nor can judgment be taken by default; Senate.194
but the case must be decided after thorough
investigation of the evidence.192 9. Judicial Review
SC may intervene in the creation of the electoral
Absence of election contest. In the absence of tribunal. SC may overturn the decisions of HRET
an election contest, however, the electoral tribunals when there is GADLJ. (Lerias v. HRET)
are without jurisdiction. Thus, the power of each
House to defer oath-taking of members until final Judicial review of decisions or final resolutions of
determination of election contests filed against the electoral tribunals is possible only in the
them has been retained by each House. (Angara v. exercise of the Court’s so called extra-ordinary
Electoral Commission) jurisdiction upon a determination that the tribunal’s
decision or resolution was rendered without or in
Invalidity of Proclamation. An allegation of excess of jurisdiction or with grave abuse of
invalidity of a proclamation is a matter that is discretion constituting denial of due process.
addressed to the sound discretion of the Electoral (Robles v. HET)
Tribunal. (Lazatin v. COMELEC)
Q: Are the decisions rendered by the
Motion to Withdraw. The motion to withdraw does Electoral Tribunals in the contests of which
not divest the HRET the jurisdiction on the case. they are the sole judge appealable to the
(Robles v. HRET) Supreme Court?
A: No. The decisions rendered by the
8. Jurisdiction of COMELEC Electoral Tribunals in the contests of which
Pre-proclamation controversies include: they are the sole judge are not appealable to
(1) Incomplete returns (omission of name or the Supreme Court except in cases of a
votes) clear showing of a grave abuse of
(2) Returns with material defects discretion.
(3) Returns which appeared to be tampered with,
falsified or prepared under duress or B. Commission on Appointments
containing discrepancies in the votes (with Function of CA
significant effect on the result of election) Composition
Proportional Representation
“Where a petitioner has seasonably filed a motion Fractional Seats
for reconsideration of the order of the Second Voting
Division suspending his proclamation and Action on Appointments
disqualifying him, the COMELEC was not divested Ad Interim Appointments not acted upon
of its jurisdiction to review the validity of the order Ruling
of the Second Division. The order of the Second
division is unenforceable as it had not attained Section 18. There shall be a
finality. It cannot be used as the basis for the Commission on Appointments
assumption to office of respondent. The issue of consisting of the President of the
the validity of the order of second division is still Senate, as ex-officio Chairman,
within the exclusive jurisdiction of the COMELEC twelve Senators and twelve Members
en banc. (Codilla v. De Venecia) of the House of Representatives,
elected by each House on the basis
It is the COMELEC which decides who the winner of proportional representation from
is in an election. A person holding office in the the political parties and parties or
House must yield his or her seat to the person organizations registered under the
declared by the COMELEC to be the winner and party-list system represented therein.
193
Codilla v. de Venecia, G.R. No. 150605. December 10, 2002.
191
Sinco, Philippine Political Law, p.161 (1954). 194
Aggabao v. Comelec, G.R. No. 163756. January 26, 2005;
192
Reinsch,, American Legislature, p 216. Vinzons-Chato v. Comelec, GR 172131, April 2, 2007.

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The Chairman of the Commission C. Constitution of ET and CA

shall not vote, except in the case of a Organization
tie. The Commission shall act on all Reason for early organization of ETs
appointments submitted to it within Reason of provision on CA
thirty session days of the Congress CA Meeting
from the submission. The
Commission shall rule by a majority Section 19. The Electoral Tribunals
vote of all its Members. and the Commission on
Appointments shall be constituted
1. Function of CA. It acts as a legislative check on within thirty days after the Senate and
the appointing authority of the President. For the the House of Representatives shall
effectivity of the appointment of certain key have been organized with the election
officials, the consent of CA is needed. of the President and the Speaker.
The Commission on Appointments
2. Composition (25 members) shall meet only while the Congress is
(1) Senate President as chairman in session, at the call of its Chairman
(2) 12 senators or a majority of all its members, to
(3) 12 members of HR discharge such powers and functions
as are herein conferred upon it.
3. Proportional Representation. The members of
the Commission shall be elected by each House on 1. Organization. The ET and COA shall be
the basis of proportional representation from the constituted within 30 days after the Senate and the
political party and party list. House shall have been organized with the election
of the President and the Speaker.
The sense of the Constitution is that the
membership in the Commission on Appointment 2. Reason for Early organization of ETs. In the
must always reflect political alignments in case of Electoral Tribunals, the need for their early
Congress and must therefore adjust to changes. It organization is obvious, considering the rash of
is understood that such changes in party affiliation election contests already waiting to be filed after,
must be permanent and not merely temporary even before, the proclamation of the winners. This
alliances (Daza v. Singson) is also the reason why, unlike the Commission of
Appointments, the Electoral Tribunals are
Endorsement is not sufficient to get a seat in COA. supposed to continue functioning even during the
(Coseteng v. Mitra) recess.195
4. Fractional Seats. Fractional seats cannot be 3. Reason, provision on COA. The provision is
rounded off. The seats should be vacant. based on the need to enable the President to
(Coseteng v. Mitra) A full complement of 12 exercise his appointing power with dispatch in
members from the Senate is not mandatory coordination with the Commission on
(Guingona v. Gonzales) Holders of .5 proportion Appointments.
belonging to distinct parties may not form a unity The rule that the Commission on Appointments can
for purposes of obtaining a seat in the Commission. meet only during the session of the Congress is the
(Guingona v. Gonzales) reason why ad interim appointments are permitted
under the Constitution. These appointments are
5. Voting. The Chairman shall not vote except in made during the recess, subject to consideration
the case of a tie. later by the Commission, for confirmation or
rejection.
6. Action on appointments. The Commission
shall act on all appointments submitted to it within But where the Congress is in session, the
30 session days of the Congress from the President must first clear his nominations with the
submission. Commission on Appointments, which is why it must
be constituted as soon as possible. Unless it is
7. Ad interim appointments not acted upon. Ad organized, no appointment can be made by the
interim appointments not acted upon at the time of President in the meantime.196
the adjournment of the Congress, even if the thirty-
day period has not yet expired, are deemed by- 4. COA meeting
passed under Article VII, Section 16.
8. Ruling. The Commission shall rule by a majority

vote of all its Members. 195
196

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The Commission on Appointments shall meet only

while the Congress is in session to discharge its A. Inquiries in Aid of Legislation
powers and functions. Who has the power
Nature
The Commission on Appointments shall meet at Limitation of Power
the call of its Chairman or a majority of all its Reason for Limitation
members Scope of Questions
Who may be summoned
VIII. RECORDS AND BOOKS OF ACCOUNTS Power to Punish
Rights of Persons
Courts and Committee
Power of Inquiry v. Executive Privilege
Section 20. The records and books Neri v. Senate Committee
of accounts of the Congress shall be
preserved and be open to the public
Section 21. The Senate or the House
in accordance with law, and such
of Representatives or any of its
books shall be audited by the
respective committees may conduct
Commission on Audit which shall
inquiries in aid of legislation in
publish annually an itemized list of
accordance with its duly published
amounts paid to and expenses
rules of procedure. The rights of
incurred for by each Member.
persons appearing in or affected by
such inquiries shall be respected.
Records and books of accounts
The records and books of accounts of the
Power of Inquiry
Congress shall be preserved and be open to the
public in accordance with law.
1. Who has the power
The records and books of accounts of the The Senate or the House of Representatives or
Congress shall be audited by the Commission on any of its respective committees may conduct
Audit. inquiries in aid of legislation.
The Commission on Audit shall publish annually an 2. Nature

itemized list of amounts paid to and expenses The power of inquiry is an essential and
incurred for by each Member. appropriate auxiliary to the legislative action.
(Arnault v. Nazareno) It has been remarked that
IX. LEGISLATIVE HEARINGS the power of legislative investigation may be
(INQUIRIES AND OVERSIGHT FUNCTIONS) implied from the express power of legislation and
does not itself have to be expressly granted.197
A. Inquiries in Aid of Legislation 3. Limitations198:

B. Oversight Functions 1. It must be in aid of legislation199
There are two provisions on legislative hearing, 2. It must be in accordance with its duly
Sections 21 and 22. Section 21 is about legislative published rules of procedure200
investigations in aid of legislation. 3. The rights of persons appearing in or
affected by such inquiries shall be respected.
Section 21. Legislative Section 22. Oversight 4. Power of Congress to commit a
Investigation Function witness for contempt terminates when the
Who may appear legislative body ceases to exist upon its final
Any person Department heads and adjournment.201
others
Who may be summoned 197
Anyone except the Each house may only 198
See Concurring Opinion of Justice Corona in Neri v. Senate
President and SC request the appearance of Committee; See also Bernas Commentary, p737 (2003 ed).
members (Senate v. department heads. 199
This requirement is an essential element for establishing
Ermita) jurisdiction of the legislative body.
Subject Matter 200
Section 21 may be read as requiring that Congress must have
Any mattes for purpose of Matters related to the “duly published rules of procedure” for legislative investigations.
legislation department only Violation of these rules would be an offense against due process.
Obligatory force of appearance (Bernas Commentary p. 740 (2003 ed).
201
Mandatory Discretionary This must be so inasmuch as the basis of the power to impose
such a penalty is the right which the Legislature has to self-

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(Note: 1-3 are explicit limitations while 4 is an 5. Contumacy in refusing to obey orders to
implicit limitation.) produce documents or give testimony
which was a right to compel.206
4. Reason for the limitations
The reason is in the past, this power was much Power to punish for contempt and local
abused by some legislators who used it for legislative bodies. The power to punish may not
illegitimate ends to browbeat or intimidate be claimed by local legislative bodies (Negros
witnesses usually for grandstanding purposes only. Oriental Electric Cooperative v. Sangguniang
There were also times when the subject of inquiry Panglunsod)
was purely private in nature and therefore outside
the scope of the powers of Congress.202 Power to punish is sui generis. The exercise of
the legislature of contempt power is a matter of
5. Scope of questions preservation and independent of the judicial
It is not necessary that every question propounded branch. Such power is sui generis. (Sabio v.
to a witness must be material to a proposed Gordon)
legislation. (Arnault v. Nazareno) This is because
the legislative action is determined by the Q: When may a witness in an investigation
information gathered as a whole. (Arnault v. be punished for contempt?
Nazareno) A: When a contumacious witness’ testimony
is required in a matter into which the
6. Who may be summoned under Section 21 legislature or any of its committees has
Senate v. Ermita203 specified who may and who jurisdiction to. (In short, the investigation
may not be summoned to Section 21 hearings. must be in aid of legislation.) (Arnault v.
Thus, under this rule, even a Department Head Nazareno)
who is an alter ego of the President may be
summoned. Thus, too, the Chairman and Q: For how long may a private individual be
members of the Presidential Commission on Good imprisoned by the legislature for contempt?
Government (PCGG) are not except from A: For HR: Until final adjournment of the
summons in spite of the exemption given to them body. For Senate: Offender could be
by President Cory Aquino during her executive imprisoned indefinitely by the body provided
rule.204 The Court ruled that anyone, except the that punishment did not become so long as
President and Justices of the Supreme Court to violate due process. (Arnault v. Nazareno)
may be summoned.
8. Rights of persons
7. Power to punish PhilComStat has no reasonable expectation of
privacy over matters involving their offices in a
Legislative Contempt. The power of investigation corporation where the government has interest.
necessarily includes the power to punish a (Sabio v. Gordon)
contumacious witness for contempt. (Arnault v.
Nazareno) 9. Courts and the Committee
A court cannot enjoin the appearance of a witness
Acts punished as legislative contempt. The US in a legislative investigation. (Senate Blue Ribbon
Supreme Court in the case of Marshall v. Gordon205 Committee v. Judge Majaducon)
mentions: Bernas: The general rule of fairness, (which is what
1. Physical obstruction of the legislative body in due process is about) could justify exclusion of
the discharge of its duties. persons from appearance before the Committee.
2. Physical assault upon its members for action Q: Section 1 of EO 464 provides that “all
taken or words spoken in the body; heads of departments of the Executive
3. Obstruction of its officers in the performance of Branch shall secure the consent of the
their official duties President prior to appearing before House
4. Prevention of members from attending so that of Congress.” Does this contravene the
their duties might be performed power of inquiry vested in the Congress?
Is Section 1 valid?
A: Valid. The SC read Section 1 of EO
preservation, and which right is enforceable during the existence of 464 to mean that department heads need
the legislative body. (CJ Avancena in Lopez v De los Reyes) the consent of the president only in
202
Cruz, Philippine Political Law, p. 155 (1995 ed). question hour contemplated in Section
203
G.R. No. 169777, April 20, 2006. 22 of Article VI. (The reading is dictated
204
Sabio v. Gordon, G.R. No. 174318, October 17, 2006.
205 206
243 US 521. Sinco, Philippine Political Law, p 208 (1954ed).

SCHOOL OF LAW
by the basic rule of construction that (2) Did the Senate Committees commit grave
issuances must be interpreted,as much as abuse of discretion in citing Neri in contempt and
possible, in a way that will render it ordering his arrest?
Ruling:
constitutional.)
(1) xxx
(2) Yes. The Supreme Court said that the Senate
Section 1 of EO 464 cannot be applied to Committees committed grave abuse of discretion
appearances of department heads in in citing Neri in contempt. The following were the
inquiries in aid of legislation. Congress reasons given by the Supreme Court:
is not bound in such instances to respect a. There was a
the refusal of the department head in such legitimate claim of executive privilege.
inquiry, unless a valid claim of privilege b. Senate
is subsequently made, either by the Committees did not comply with the
President or by the Executive Secretary. requirement laid down in Senate v. Ermita
(Senate v. Ermita; EO 464 case) that the invitations should contain the
“possible needed statute which prompted the
need for the inquiry” along with “usual
10. Power of Inquiry v. Executive Privilege
indication of the subject of inquiry and the
Senate v. Ermita: “Congress has undoubtedly has questions relative to and in furtherance
a right to information from the executive branch thereof.”
whenever it is sought in aid of legislation. If the c. A reading of the
executive branch withholds such information on the transcript of the Committees’ proceeding
ground that it is privileged, it must so assert it reveals that only a minority of the member of
and state the reason therefore and why it must the Senate Blue Ribbon Committee was
present during the deliberations Thus, there
be respected.” (Justice Carpio Morales in Senate is a cloud of doubt as to the validity of the
v. Ermita) contempt order
Neri v. Senate: Was the claim of executive d. The Senate

Rules of Procedure in aid of legislation
privilege properly invoked in this case? Yes were not duly published in accordance to
according to the Justice Leonardo-De Castro’s Section 21 of Article VI.
ponencia. For the claim to be properly invoked,
there must be a formal claim by the President e. The contempt
order is arbitrary and precipitate because the
stating the “precise and certain reason” for Senate did not first rule on the claim of
preserving confidentiality. The grounds relied upon executive privilege and instead dismissed
by Executive Secretary Ermita are specific enough, Neri’s explanation as unsatisfactory. This is
since what is required is only that an allegation be despite the fact that Neri is not an unwilling
made “whether the information demanded involves witness.
military or diplomatic secrets, closed-door Cabinet Hence, the Senate order citing Neri in contempt and
meetings, etc.” The particular ground must only be ordering his arrest was not valid.
specified, and the following statement of grounds
by Executive Secretary Ermita satisfies the 12. Power of Inquiry v. Commander in Chief
requirement: “The context in which executive power of the President
privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic Since the President is commander-in-chief of the
as well as economic relations with the People’s Armed Forces she can demand obedience from
Republic of China.”207 military officers. Military officers who disobey or
ignore her command can be subjected to court
11. Neri v. Senate Committee martial proceeding. Thus, for instance, the
Background: President as Commander in Chief may prevent a
This case is about the Senate investigation of member of the armed forces from testifying before
anomalies concerning the NBN-ZTE project. During a legislative inquiry. A military officer who disobeys
the hearings, former NEDA head Romulo Neri the President’s directive may be made to answer
refused to answer certain questions involving his before a court martial. Since, however, Congress
conversations with President Arroyo on the ground has the power to conduct legislative hearings,
they are covered by executive privilege. When the
Senate cited him in contempt and ordered his arrest, Congress may make use of remedies under the
Neri filed a case against the Senate with the law to compel attendance. Any military official
Supreme Court. On March 25, 2008, the Supreme whom Congress summons to testify before it may
Court ruled in favor of Neri and upheld the claim of be compelled to do so by the President. If the
executive privilege. President is not so inclined, the President may be
Issues: commanded by judicial order to compel the
(1) xxx attendance of the military officer. Final judicial
207
Primer on Neri v. Senate made by Atty. Carlos Medina.

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orders have the force of the law of the land which

the President has the duty to faithfully execute.208 3. Appearance of Heads of Departments by
their own initiative
B. Oversight Function The Heads of Departments may upon their own
Purpose of Section 22 initiative, with the consent of the President
Oversight Function appear before and be heard by either House on
Appearance of Heads of Department any matter pertaining to their departments.
Why Permission of President Needed
Exemption from Summons 4. Why permission of the President needed
Appearance at the Request of Congress In deference to separation of powers, and because
Written Questions Department Heads are alter egos of the President,
Scope of Interpellations they may not appear without the permission of the
Executive Session President.211
Congress may refuse the initiative
5. Exemption from summons applies only to
Section 22. The Heads of Department Heads
Departments may upon their own It should be noted, that the exemption from
initiative, with the consent of the summons applies only to Department Heads and
President, or upon the request of not to everyone who has Cabinet rank.
either House as the rules of each
House shall provide, appear before Q: Does Section 22 provide for a
and be heard by such House on any “question hour”?
matter pertaining to their A:
departments. Written questions shall
be submitted to the President of Bernas Primer: No. the “question hour” is
Senate or the Speaker of the House proper to parliamentary system where there
of Representatives at least three days is no separation between the legislative and
before their scheduled appearance. executive department. Section 22, unlike in
Interpellations shall not be limited to the “question hour” under the 1973
written questions, but may cover Constitution, has made the appearance of
matters related thereto. When the department heads voluntary.
security of the State or the public
interest so requires and the President But wait! The SC in Senate v. Ermita,
so states in writing, the appearance adopting the characterization of
shall be conducted in executive constitutional commissioner Hilario Davide,
session. calls Section 22 as the provision on
“Question Hour”:“[Section 22] pertains to
1. Purpose of Section 22 the power to conduct a question hour, the
The provision formalizes the “oversight function” of objective of which is to obtain information in
Congress. Section 22 establishes the rule for the pursuit of Congress’ oversight function.”
exercise of what is called the “oversight function” of
Congress. Such function is intended to enable Reconcile: Although the Court decision calls
Congress to determine how laws it has passed are this exercise a “question hour,” it does so
being implemented. only by analogy with its counterpart in
parliamentary practice.
2. Oversight function
“Broadly defined, congressional oversight
embraces all activities undertaken by Congress to 6. Appearance at the request of Congress
enhance its understanding of and influence over The Heads of Departments may upon their own
the implementation of legislation it has enacted.”209 initiative, with the consent of the President, or
The acts done by Congress in the exercise of its upon the request of either House as the rules of
oversight powers may be divided into three each House shall provide, appear before and be
categories, to wit: scrutiny, investigation, and heard by such House on any matter pertaining to
supervision.210 their departments.
208
Gudani v. Senga, G.R. No. 170165, April 15. 2006.
211
209 This was explicitly mentioned in the deliberations of the 1935
Macalintal v. Commission on Elections, 405 SCRA 614
Constitutional Convention where some Delegates had doubts about
(2003), at 705.
210
the propriety or constitutionality of Department Heads appearing in
Macalintal v. Commission on Elections, 405 SCRA 614 (2003), Congress. Such deference is not found, by the Court’s interpretation,
at 3. in Section 21.

SCHOOL OF LAW
7. Written Questions but the second phrase emphasizes more the fact
Written questions shall be submitted to the Senate that the Philippines, according to Article II, Section
President or the House Speaker at least 3 days 2, renounces aggressive war as an instrument of
before their scheduled appearance. national policy.216
8. Scope of Interpellations Q: May a country engage in war in the

Interpellations shall not be limited to written absence of declaration of war?
questions, but may cover matters related thereto. A: Yes. The actual power to make war is
lodged in the Executive. The executive when
9. Executive Session necessary may make war even in the
absence of a declaration of war.217
The appearance shall be conducted in executive
session when:
B. Delegation of emergency powers
(1) The public interest so requires and 1. Requisites for Delegation
(2) The President so states in writing. 2. Duration of delegation
3. Powers that may be delegated
10. Congress may refuse the initiative 4. Withdrawal of powers
Because of separation of powers, department
secretaries may not impose their appearance upon Section 23
either House.212 Hence, the Congress may refuse (2) In times of war or other national
the initiative taken by the department secretary.213 emergency, the Congress may by law
authorize the President, for a limited
X. Emergency Powers period and subject to such restrictions
as it may prescribe, to exercise
A. Declaration of the existence of a state of powers necessary and proper to carry
war out a declared national policy. Unless
B. Delegation of emergency power sooner withdrawn by resolution of the
Congress, such power shall cease
A. War power upon the next adjournment thereof.
1. Power to declare existence of a state
of war 1. Requisites for the delegation: (1997 Bar Q)
2. Rewording of the provision (1) There must be a war218 or other national
emergency
Section 23. (1) The Congress, by a (2) Law authorizing the president for a limited
vote of two-thirds of both Houses in period and subject to such restrictions as
joint session assembled, voting Congress may prescribe
separately, shall have the sole power (3) Power to be exercised must be necessary and
to declare the existence of a state of proper to carry out a declared national policy.
war.
2. Duration of the delegation:
1. Power to declare existence of a state of (1) Until withdrawn by resolution of Congress
war214 (2) Until the next adjournment of Congress
The Congress, by a vote of 2/3 of both Houses in
joint session assembled, voting separately, shall 3. Powers that may be delegated
have the sole power to declare the existence of a Congress may authorize the President, to exercise
state of war. powers necessary and proper to carry out a
declared national policy Note that the nature of
2. Rewording of the provision delegable power is not specified. It is submitted
From 1935 Constitution’s power to declare war215 to that the President may be given emergency
power to declare the existence of a state of war legislative powers if Congress so desires.219
under 1987.
Bernas: The difference between the two 4. Withdrawal of powers
phraseologies is not substantial but merely in
emphasis. The two phrase were interchangeable,
212 216
213 217
Bernas Commentary, p 744 (2003 ed). Bernas Primer at 264 (2006 ed.)
214 218
War is defined as “armed hostilities between the two states. (II War is defined as “armed hostilities between the two states. (II
RECORD 169) RECORD 169)
215 219
Wording of the 1935 Constitution. Bernas Primer at 265 (2006 ed.)

SCHOOL OF LAW
Congress may do it by a mere resolution.220 And exclusively in the House of Representatives, but
such resolution does not need presidential the Senate may propose or concur with
approval.221 amendments.
XI. BILLS/ LEGISLATIVE PROCESS 2. Bills that must exclusively originate from the
HR:
(1) Appropriation bills
Origination Clause (2) Revenue bills
One bill-one subject rule (3) Tariff bills
Passage of a bill (4) Bills authorizing increase of the public debt
Presidential Approval, Veto or Inaction; Legislative (5) Bills of local application
Reconsideration (6) Private bills
Item Veto
Doctrine of inappropriate provisions 3. Origination from the House
Executive Impoundment
The exclusivity of the prerogative of the House of
Legislative Veto
Representatives means simply that the House
alone can initiate the passage of revenue bill, such
A. Origination Clause
that, if the House does not initiate one, no revenue
Exclusive Origination Clause law will be passed. (Tolentino v. Secretary of
Bills that must exclusively originate from HR Finance)
Origination from the House, Meaning
Reason for exclusive origination 4. Reason for exclusive origination
Senate may propose amendments
The district representatives are closer to the pulse
Scope of Senate’s power to introduce amendments
of the people than senators are and are therefore
in a better position to determine both the extent of
Section 24. All appropriation, the legal burden they are capable of bearing and
revenue or tariff bills, bills authorizing the benefits that they need.228 It is more numerous
increase of the public debt, bills of in membership and therefore also more
local application and private bills shall representative of the people.229
originate exclusively in the House of
Representatives, but the Senate may 5. Senate may propose amendments
propose or concur with amendments.
The addition of the word “exclusively” in the
Constitution is not intended to limit the power of the
1. Origin of money bills, private bills and bills of Senate to propose amendments to revenue bills.
local application (Tolentino v. Sec. of Finance)
All appropriation222, revenue223 or tariff bills224, bills
authorizing increase of the public debt225, bills of 6. Scope of the Senate’s power to introduce
local application226 and private bills227 shall originate amendments
Once the House has approved a revenue bill and
220
See concurring opinion of Justice Padilla in Rodriguez v. Gella, passed it on to the Senate, the Senate can
49 Off. Gaz. 465, 472. completely overhaul it, by amendment of parts or
221
Bernas Primer at 265 (2006 ed.) by amendment by substitution, and come out
222
An appropriation bill is one whose purpose is to set aside a sum with one completely different from what the
of money for public use. Only appropriation bills in the strict sense House approved. Textually, it is the “bill” which
of the word are comprehended by the provision; bills for other must exclusively originate from the House; but the
purposes which incidentally set aside money for that purpose are not “law” itself which is the product of the total
included. Bernas Commentary, p 748 (2003 ed). bicameral legislative process originates not just
223
A revenue bull is one that levies taxes and raises funds for the from the House but from both Senate and House.
government. Cruz, Philippine Political Law, p. 144 (1995 ed). (Tolentino v. Secretary of Finance)
224
A tariff bill specifies the rates of duties to be imposed on
imported articles. Cruz, Philippine Political Law, p. 144 (1995 ed). (Discussion of Section 25 can be found after Section
225
A bill increasing public debt is illustrated by one floating bonds 29(3))
for public subscription redeemable after a certain period. Cruz,
Philippine Political Law, p. 144 (1995 ed).
226
B. One bill-one subject rule
Bills of local application are those which is limited to specific
Mandatory Nature of the Rule
localities, such for instance as the creation of a town. Bernas
Commentary, p 748 (2003 ed). Purpose of the Rule
227
Private bills are those which affect private persons, such for
Liberal Interpretation of the Rule
instance as a bill granting citizenship to a specific foreigner. Bernas Germane
Commentary, p 748 (2003 ed). Private bills are illustrated by a bill 228
granting honorary citizenship to a distinguished foreigner. Cruz, . Bernas Commentary, p 748 (2003 ed).
229
Philippine Political Law, p. 155 (1995 ed). Cruz, Philippine Political Law, p. 145 (1995 ed).

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Not Germane A provision that states that “no election officer shall hold
office for more than four years” is relevant to the title “An
Act Providing for a General Registration of voters,
Section 26. (1) Every bill passed by Adopting a System of Continuing Registration,
the Congress shall embrace only one Prescribing Procedures Thereof and Authorizing the
subject shall be expressed in the title Appropriation of Funds Therefor” as it seeks to ensure the
thereof. integrity of the registration process by providing
guidelines for the COMELEC to follow in the
1. Mandatory nature of the rule reassignment of election officers. (De Guzman v.
COMELEC)
Every bill passed by the Congress shall embrace
only one subject. The subject shall be expressed in
The abolition of 2 municipalities is but a logical
the title of the bill. This rule is mandatory.
consequence of its merger to create a city.
The requirement is satisfied when:
5. Not Germane
(1) All parts of the law relate to the
Prohibition of places of amusement should be included
subject expressed in the title in the title of the law which only provides for the
(2) It is not necessary that the title be a regulation of places of amusement. (De la Cruz v. Paras)
complete index of the content (PHILCONSA v.
Gimenez) C. Passage of a bill
Rules
2. Purpose of the Rule: Procedure
(1) To prevent hodge-podge or log-rolling Reason for three readings
legislation
(2) To prevent surprise or fraud upon the Section 26
legislature (2) No bill passed by either House
(3) To fairly appraise the people. (Central Capiz v. shall become a law unless it has
Ramirez) passed three readings on separate
days, and printed copies whereof in
3. Liberal interpretation of the rule its final form have been distributed to
The rule should be given a practical rather than a its Members three days before its
strict construction. It should be sufficient passage, except when the President
compliance with such requirement if the title certifies to the necessity of its
expresses the general subject and all the immediate enactment to meet a
provisions of the statute are germane to that public calamity or emergency. Upon
general subject. (Sumulong v. COMELEC) the last reading of a bill, no
amendment thereto shall be allowed,
4. Germane and the vote thereon shall be taken
A partial exemption from the increase of tax imposed is immediately thereafter, and the yeas
not a deviation from the general subject of the law. and the nays entered in the Journal.
(Insular Lumber Co. v. CTA)
A tax may be germane and reasonably necessary for the 1. Rules

accomplishment of the general object of the decree for (1) No bill passed by either House shall become a
regulation. (Tio v. VRB) law unless it has passed three readings on
separate days.
A repealing clause does not have to be expressly (2) Printed copies of the bill in its final form should
included in the title of the law. (Phil. Judges Assoc. v.
Prado) be distributed to the Members 3 days before
its passage (except when the President
The creation of a new legislative district is germane to certifies to the necessity of its immediate
“the conversion of a municipality to an urbanized city.” enactment to meet a public calamity or
(Tobias v. Abalos) emergency).
(3) Upon the last reading of a bill, no amendment
The reorganization of the remaining administrative thereto shall be allowed.
regions is germane to the general subject of “establishing (4) The vote on the bill shall be taken immediately
the ARMM”. (Chiongbayan v. Orbos)
after the last reading of a bill.
The expansion in the jurisdiction of the Sandiganbayan (5) The yeas and the nays shall be entered in the
does not have to be expressly stated in the title of the law Journal.
(An Act Further Defining the Jurisdiction of the Exception. The certification of the President
Sandiganbayan) because such is the necessary dispenses with the reading on separate days and
consequence of the amendment. (Lacson v. Executive the printing of the bill in the final form before its
Secretary) final approval. (Tolentino v. Secretary of Fincance)

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Operative. All decrees which are not inconsistent

with the Constitution remain operative until they are Q: If the version approved by the Senate
amended or repealed. (Guingona v. Carague) is different from that approved by the
House of Representatives, how are the
2. Procedure:230 differences reconciled?
1. A bill is introduced by A: In a bicameral system bills are
independently processed by both Houses
any member of the House of Representatives
of Congress. It is not unusual that the final
or Senate except for some measures that must
version approved by one House differs
originate only in the former chamber.
from what has been approved by the
2. The first reading involves other. The “conference committee,”
only a reading of the number and title of the consisting of members nominated from
measure and its referral by the Senate both Houses, is an extra-constitutional
President or the Speaker to the proper creation of Congress whose function is to
committee for study. propose to Congress ways of reconciling
3. The bill may be killed in conflicting provisions found in the Senate
the committee or it may be recommended for version and in the House version of a bill.
approval, with or without amendments,
sometimes after public hearings are first held D. Presidential Approval, Veto or Inaction;
thereon. (If there are other bills of the same Legislative Reconsideration
nature or purpose, they may all be Three Methods
consolidated into one bill under common Presidential Approval
authorship or as a committee bill.) Presidential Veto
4. Once reported out, the bill Legislative Approval of the bill
shall be calendared for second reading. It is Presidential Inaction
at this stage that the bill is read in its entirety,
scrutinized, debated upon and amended when Section 27. (1)Every bill passed by
desired. The second reading is the most the Congress shall, before it becomes
important stage in the passage of the bill. a law, be presented to the President.
If he approves the same, he shall
5. The bill as approved in
sign it; otherwise, he shall veto it and
second reading is printed in its final form and
return the same with his objections to
copies thereof are distributed at least three
the House where it originated, which
days before the third reading. On third
shall enter the objections at large in
reading, the members merely register their
its Journal, and proceed to consider
votes and explain them if they are allowed by
it. If, after such reconsideration, two-
the rules. No further debate is allowed.
thirds of all the Members of such
6. Once the bill passes third House shall agree to pass the bill, it
reading, it is sent to the other chamber, shall be sent, together with the
where it will also undergo the three readings. objections to the other House by
7. If also approved by the which it shall likewise be
second House, it will then be submitted to the reconsidered, and if approved by two-
President for his consideration. thirds of all the Members of that
House, it shall become a law. In all
8. The bill is enrolled when
such cases, the votes of each House
printed as finally approved by the Congress,
shall be determined by yeas or nays,
thereafter authenticated with the signatures of
and the names of the Members voting
the Senate President, the Speaker, and the
for or against shall be entered in its
Secretaries of their respective chambers, and
Journal. The President shall
approved by the President.
communicate his veto of any bill to
the House where it originated within
3. Reason for three readings
thirty days after the date of receipt
To address the tendency of legislators, (on the last thereof; otherwise, it shall become a
day of the legislative year when legislators were law as if he had signed it.
eager to go home), to rush bills through and insert
matters which would not otherwise stand scrutiny in
1. Three methods by which a bill may become a
leisurely debate.231
law: (1988 Bar Question)
1. When the President signs
230
Cruz, Philippine Political Law, p. 155 (1995 ed). it;
231
See Bernas Commentary, p 760 (2003 ed).

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2. When the President (1) Passed bill is presented to the President

vetoes it but the veto is overridden by two- (2) President does not approve nor communicate
thirds vote of all the members of each House; his veto to the House where the bill originated
3. When the President does within 30 days.
not act upon the measure within 30 days after (3) The bill becomes a law.
it shall have been presented to him.
2. Presidential approval
(1) Passed bill is presented to the President
(2) President signs the bill if he approves the same
(3) The bill becomes a law.
3. Presidential veto
(1) Passed bill is presented to the President
(2) President vetoes the bill if he does not approve
of it.
(3) He returns the passed bill with his objections to
the House where it originated. (Veto Mesasge)
General rule: If the president
disapproves the bill approved by
Congress, he should veto the entire
bill. He is not allowed to veto
separate items of a bill.
Exceptions:
(1) President may veto
an item in cases of
appropriation, revenue and
tariff bills.
(2) President may veto
inappropriate provisions or
riders.
4. Legislative reconsideration of the bill (1993

Bar Question)
(1) The House where the bill originated enters the
objections of the President at large in its Journal.
(2) Said House reconsiders the bill.
(3) 2/3 of all the Members of such House agree to
pass the bill.
(4) The bill together with the objections is sent to
the other House by which it is also reconsidered.
(5) The other House approves the bill by 2/3 of all
the members of that House.
(6) The bill becomes a law.
In all such cases, the votes of each House shall be
determined by yeas or nays.
The names of the Members voting for or against
shall be entered in its Journal.
Q: When does the Constitution require that

the yeas and nays of the Members be taken
every time a House has to vote?
A:
1. Upon the last and third readings of a bill
(art. 6 sec26(2))
2. At the request of 1/5 of the members
present (art 6 sec 16(4))
3. In repassing a bill over the veto of the
President (art 6 sec 27(1))
5. Presidential Inaction

SCHOOL OF LAW
E. Item veto must be incorporated in a separate bill. Being an

inappropriate provision, it was properly vetoed.
Section 27 (PHILCONSA v. Enriquez)
(2) The President shall have the
power to veto any particular item or The proviso on “power of augmentation from
items in an appropriation, revenue, or savings” can by no means be considered a specific
tariff bill, but the veto shall not affect appropriation of money. (Gonzales v. Macaraig)
the item or items to which he does
not object. 4. Appropriate Provisions
The special provision providing that “the maximum
Again, the General rule is: If the president amount of the appropriation for the DPWH to be
disapproves the bill approved by Congress, he contracted for the maintenance of national roads
should veto the entire bill. He is not allowed to veto and bridges should not exceed 30%” is germane to
separate items of a bill. the appropriation for road maintenance. It specifies
Exceptions: how the item shall be spent. It cannot be vetoed
separately from the item. (PHILCONSA v.
(1) President may veto an item in cases of Enriquez)
appropriation, revenue and tariff bills.
(2) President may veto inappropriate The special provision that all purchases of
provisions or riders. medicines by the AFP should comply with Generics
Act is a mere advertence to an existing law. It is
Item. An item is an indivisible [sum] of money directly related to the appropriation and cannot be
dedicated to a stated purpose.232 (Item = Purpose, vetoed separately from the item. (PHILCONSA v.
Amount) Enriquez)
In a tax measure, an item refers to the subject of
the tax and the tax rate. It does not refer to the G. Executive Impoundment:
entire section imposing a particular kind of tax.
(CIR v. CTA) Refusal of the President to spend funds already
allocated by Congress for a specific purpose. (See
The president may not veto the method or manner PHILCONSA v. Enriquez)
of using an appropriated amount. (Bengzon v.
Drillon) H. Legislative veto
F. Doctrine of inappropriate provisions A Congressional veto is a means whereby the

Doctrine legislature can block or modify administrative
Reason for the Doctrine action taken under a statute. It is a form of
Inappropriate Provisions legislative control in the implementation of
Appropriate Provisions particular executive actions.
1. Doctrine XII. FISCAL POWERS/ POWER OF THE PURSE

A provision that is constitutionally inappropriate for
an appropriation bill may be singled out for veto
even if it is not an appropriation or revenue “item”. Taxation
(Gonzales v. Macaraig) A. Nature
B. Limitations
2. Reason for the Doctrine C. Delegation of power to tax
The intent behind the doctrine is to prevent the D. Exempted from taxation
legislature from forcing the government to veto an Spending Power
entire appropriation law thereby paralyzing A. Spending Power
government. B. Appropriation
C. Non-establishment provision
3. Inappropriate Provisions D. Special Fund
E. Appropriation
Repeal of laws. Repeal of laws should not be
done in appropriation act but in a separate law
Power of the Purse. Congress is the guardian of
(PHILCONSA v. Enriquez) (use this doctrine
the public treasury. It wields the tremendous power
carefully)
of the purse. The power of the purse comprehends
both the power to generate money for the
The requirement of congressional approval for the
release of funds for the modernization of the AFP
232
Bernas Primer, p. 276 (2006 ed.)

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government by taxation and the power to spend martial rule product, which imposed a ten peso
it.233 capital contribution for the sale of each bag of
fertilizer “until adequate capital is raised to make
TAXATION PPI viable.” PPI was private corporation. Clearly,
therefore, the imposition was for private benefit and
Section 28. (1) The rule of taxation not for a public purpose.
shall be uniform and equitable. The
Congress shall evolve a progressive B. Limitations on Power of Taxation
system of taxation. 1. Rule of taxation shall be uniform and equitable.
Congress shall evolve a progressive system
A. Nature of taxation.
Definition 2. Charitable institutions, etc. and all lands, building
Scope and improvements actually, directly and
Purposes exclusively used for religious, charitable or
Tax educational purposes shall be exempt from
Public Purpose taxation. (art. 6 §28(3))
3. All revenues and assets of non-stock, non-profit
1. Definition educational institutions used actually, directly
and exclusively for educational purposes shall
Taxation refers to the inherent power of the state to
be exempt from taxes and duties. (art. 14
demand enforced contributions for public purposes.
§4(3))
4. Law granting tax exemption shall be passed only
2. Scope
with the concurrence of the majority of all the
Taxation is so pervasive that it reaches even the members of Congress. (art. 6 §29(4)
citizen abroad and his income earned from source
outside the State. UNIFORM
General Limit: For a public purpose; Due process
and equal protection clauses (Sison v. Ancheta) Uniformity. Uniformity signifies geographical
Specific Limit: Uniform and equitable (Section 28) uniformity. A tax is uniform when it operates with
(See 29(2)) the same force and effect in every place where the
Exercise of the power: Primarily vested in the subject is found.
national legislature.
Uniformity in taxation v. Equality in taxation.
3. Purposes: Uniformity in taxation means that persons or things
(1) To raise revenue belonging to the same class shall be taxed at the
(2) Instrument of national economic and social same rate. It is distinguished from equality in
policy taxation in that the latter requires the tax imposed
(3) Tool for regulation to be determined on the basis of the value of the
(4) The power to keep alive234 property.237
4. Tax Tan v. del Rosario:

Taxes are enforced proportional contributions from Uniformity means:
persons and property levied by the law making (1) the standards that are used therefor
body of the state by virtue of its sovereignty for the are substantial and not arbitrary;
support of the government and all public needs. (2) the categorization is germane to
Justice Holmes said: “Taxes are what we pay for achieve the legislative purpose;
civilized society.” (3) the law applies, all things being
equal, to both present and future conditions;
5. Public Purpose and
It is fundamental in democratic governments that (4) the classification applies equally well
taxes may be levied for public purpose only. to all those belonging to the same class.
Without this element, a tax violates the due
process clause and is invalid.235 In Planters There is a difference between the homeless people
Products, Inc. (PPI) v. Fertiphil Corp.236 the Court and the middle class. The two social classes are
had occasion to review the validity of LOI 1465, a differently situated in life. (Tolentino v. Sec. of
Finance)
233
Bernas Commentary, p 785 (2003 ed). EQUITABLE
234
235
236 237
G.R. No. 166006, March 14, 2008. Cruz, Philippine Political Law, p. 168 (1995 ed).

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The present constitution adds that the rule of (3) The said power is to be exercised within
taxation shall also be equitable, which means that specified limits and subject to such limitations and
the tax burden must be imposed according to the restrictions as the Congress may impose.
taxpayer’s capacity to pay.238 (4) The authorization of such power must be within
the framework of the national development
Progressive system of taxation. The Congress program of the Government.
shall evolve a progressive system of taxation. Tax
system is progressive when the rate increases as 2. Tariff and Customs Code, Flexible Tariff
the tax base increases.239 Clause
The President is given by the Tariff and Customs
Reason for progressive system. The explicit Code ample powers to adjust tariff rates.
mention of progressive taxation in the Constitution
reflects the wish of the Commission that the Flexible Tariff Clause
legislature should use the power of taxation as an The President may fix tariff rates, import and export
instrument for a more equitable distribution of quotas, etc. under TCC:
wealth. 1) To increase, reduce or remove existing
protective rates of import duty (including any
Directive not a judicially enforceable right. The
necessary change in classification)
directive to evolve a progressive system of taxation
is addressed to Congress and not a judicially  the existing rates may be increased or
enforceable right. (Tolentino v. Sec. of Finance) decreased to any level on one or several
stages but in no case shall be higher than a
Indirect taxes. The Constitution does not prohibit maximum of 100% ad valorem
the imposition of indirect taxes, which are 2) To establish import quota or to ban imports of
regressive. The provision simply means that direct any commodity, as may be necessary
taxes are to be preferred and indirect taxes should 3) To impose an additional duty on all imports not
be minimized as much as possible. It does not exceeding 10% ad valorem whenever necessary
require Congress to avoid entirely indirect taxes.
Otherwise, sales taxes, which are the oldest form 3. Limitation Imposed Regarding the Flexible
of indirect taxes, will be prohibited. The mandate to Tariff Clause
Congress is not to prescribe but to evolve a 1) Conduct by the Tariff
progressive system of taxation. (Tolentino v. Sec. Commission of an investigation in a public
of Finance) hearing
 The Commissioner shall also hear the
C. Delegation of power to tax views and recommendations of any
Conditions government office, agency or
Tariffs and Customs Code instrumentality concerned
Limitation imposed regarding the Flexible Tariff Clause  The NEDA thereafter shall submits its
recommendation to the President
Section 28 2) The power of the President
(2) The Congress may by law, to increase or decrease the rates of import
authorize the President to fix within duty within the abovementioned limits fixed in
specified limits, and subject to such the Code shall include the modification in the
limitations and restrictions as it may form of duty.
impose, tariff rates, import and export  In such a case the corresponding ad
quotas, tonnage and wharfage dues, valorem or specific equivalents of the duty
and other duties or imposts within the with respect to the imports from the
framework of the national principal competing country for the most
development program of the recent representative period shall be used
Government. as bases. (Sec 401 TCC)
1. Conditions in the delegation of the power to D. Exempted from taxation

tax: Exempted from taxation
(1) Delegation must be made by law Kind of tax exemption
(2) The power granted is to fix tariff rates, import “Exclusively”, Meaning
and export quotas, tonnage and wharfage dues, Elements in determining a charitable institution
and other duties and impost. Reason for Requirement of Absolute Majority
238
Cruz, Philippine Political Law, p. 168 (1995 ed). Section 28
239
Bernas Commentary, p 779 (2003 ed). (3) Charitable institutions, churches
and parsonages or convents

SCHOOL OF LAW
appurtenant thereto, mosques, non- power to tax and consequent loss of revenue to the
profit cemeteries and all lands, government.
buildings, and improvement actually,
directly, and exclusively used for POWER OF APPROPRIATION/ SPENDING POWER
religious, charitable, or educational
purposes shall be exempt from A. Spending Power
taxation. 1. Spending Power
2. Reason
1. Exempted: 3. “By Law”
(1) Charitable institutions
(2) Churches Section 29. (1) No money shall be
(3) Parsonages or convents appurtenant to paid out of the Treasury except in
churches pursuance of an appropriation made
(4) Mosques by law.
(5) Non-profit cemeteries
(6) All lands, buildings, and improvement actually, 1. Spending Power
directly and exclusively used for religious, The spending power of Congress is stated in
charitable, or educational purpose shall be exempt Section 29(1): “No money shall be paid out of the
from taxation. Treasury except in pursuance of an appropriation
made by law.” (1988, 1992 Bar Question)
2. Kind of tax exemption under 28(3)
The exemption created by Section 28 is only for 2. Reason
taxes assessed as property taxes and not excise Behind the provision stands the principle that the
tax. (CIR v. CA) people’s treasure that the people’s treasure may
be sent only with their consent. That consent is to
3. “Exclusively” be expressed either in the Constitution itself or in
The phrase “exclusively used for educational valid acts of the legislature as the direct
purposes” extends to facilities which are incidental representative of the people.240
to and reasonably necessary for the
accomplishment of the main purpose. (Abra Valley 3. “By law”
College v. Aquino) The provision does not say “appropriation by
Congress” but rather “by law”, a term which covers
PCGG has no power to grant tax exemptions both statutes and the Constitution.241
(Chavez v. PCGG)
B. Appropriation
4. Elements to be considered in determining Appropriation
whether an enterprise is a charitable Classification
institution/entity: CDF
(1) Statute creating the enterprise Truth Commission Case
(2) Its corporate purposes
(3) Its constitution and by-laws 1. Appropriation
(4) Method of administration An appropriation measure may be defined as a
(5) Nature of actual work performed statute the primary and specific purpose of which is
(6) Character of services rendered to authorize the release of public funds from the
(7) Indefiniteness of the beneficiaries treasury.242 A law creating an office and providing
(8) Use and occupation of the properties (Lung funds therefore is not an appropriation law since
Center v. QC) the main purpose is not to appropriate funds but to
create the office.243
Section 28
(4) No law granting any tax 2. Classification of Appropriation Measures:
exemption shall be passed without
the concurrence of a majority of all
(4) General- The general appropriations
the Members of the Congress. law passed annually is intended to provide for
the financial operations of the entire
government during one fiscal period.
5. Reason for absolute majority
Bills ordinarily passed with support of only a simple 240
majority, or a majority of those present and voting. See Sinco, Philippine Political Law, p 208 (1954ed).
241
The above provision requires an absolute majority Sinco, Philippine Political Law, p 211 (1954ed).
of the entire membership of the Congress because 242
a tax exemption represents a withholding of the 243

SCHOOL OF LAW
(5) Special- designed for a specific 1. Appropriation must be devoted to a public

purpose such as the creation of a fund for the purpose
relief of typhoon victims. 2. The sum authorized must be determinate or at
least determinable.244
CDF
2. Constitutional Limitations
A law creating CDF was upheld by the SC saying
that the Congress itself has specified the uses of
the fund and that the power given to Congressmen Specific Limitations on the power of
and Vice-President was merely recommendatory to appropriation245 [Sec 24, Sec 25(6)]
the President who could approve or disapprove the 1. Appropriation bills should originate in the House
recommendation. (PHILCONSA v. Enriquez) of Representatives. (art. 6 sec 24)
2. Discretionary funds appropriated for particular
Truth Commission Case officials shall be disbursed only for public
purposes to be supported by appropriate
Facts: President Noynoy Aquino on July 30, 2010,
vouchers and subject to such guidelines as
signed Executive Order No. 1 establishing the
may be prescribed by law. (art. 6 sec 25(6)
Philippine Truth Commission of 2010 (Truth
Commission).The said Truth is dedicated solely Constitutional limitations on special
to investigating and finding out the truth appropriation measures [Sec 25(4), Sec 29(2)]
concerning the reported cases of graft and 1. Must specify the public purpose for which the
corruption during the previous sum is intended. (art 6 sec 25 (4))
administration. 2. Must be supported by funds actually available as
certified to by National Treasurer, or to be
Issue: Does E.O. 1 of Pres. Noynoy Aquino raised by a corresponding revenue proposal
transgress the power of Congress to included therein. (art 6 sec 25(4))
3. Prohibition against appropriations for sectarian
appropriate funds for the operation of public
benefit. (art 6 sec 29(2))246
office?
Constitutional rules on general appropriations
Held: NO. that there will be no appropriation but law [Sec 25 (1)(2)(3)(5)(7), Sec 29(2)]
only an allotment or allocations of existing funds 1. Congress may not increase the appropriations
already appropriated. Accordingly, there is no recommended by the President. (art 6 sec
usurpation on the part of the Executive of the 25(1))
power of Congress to appropriate funds. Further, 2. The form, content, and manner of preparation for
there is no need to specify the amount to be the budget shall be prescribed by law. (art 6
earmarked for the operation of the commission sec 25(1))
because, in the words of the Solicitor General, 3. Rule on riders. (art 6 sec 25(2))
“whatever funds the Congress has provided for the 4. Procedure for approving appropriations for
Office of the President will be the very source of Congress. (art 6 sec 25(3))
the funds for the commission.” Moreover, since the 5. Prohibition against transfer of appropriations. (art
amount that would be allocated to the PTC shall be 6 sec 25(5))
subject to existing auditing rules and regulations, 6. Rule on automatic reappropriation. (art 6 sec
there is no impropriety in the funding. (J. Mendoza) 25(7))
7. Prohibition against appropriations for sectarian
NOTE: In this case of Biraogo v. PTC, the benefit. (art 6 sec 29(2))
Supreme Court, while it recognized that the
power to conduct investigations is inherent in D. Non-establishment provision
the power to faithfully execute laws, held that
E.O. 1 by Pres. Noynoy Aquino creating Section 29
the Truth Commission unconstitutional for (2) No public money or property shall
being violative of the equal protection be appropriated, applied, paid, or
clause of the Constitution. employed, directly or indirectly, for
the use, benefit, or support of any
sect, church, denomination, sectarian
C. Limitations on Appropriations institution, or system of religion, or of
any priest, preacher, minister, or
Extra-Constitutional Limitations
other religious teacher or dignitary as
Constitutional Limitations
244
1. Implied Limitations Cruz, Philippine Political Law, p. 160 (1995 ed).
245
246
See Cruz, Philippine Political Law, p. 164 (1995 ed).

SCHOOL OF LAW
such, except when such priest, Special Appropriations Bill

preacher, minister, or dignitary is No Transfer of Appropriations
assigned to the armed forces, or to Discretionary Funds
any penal institution, or government Automatic Re-enactment
orphanage or leprosarium.
1. Budget and Appropriation
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for Section 25. (1) The Congress may
the use, benefit, or support of any sect, church, not increase the appropriations
denomination, sectarian institution, or system of recommended by the President for
religion, or of any priest, preacher, minister, or the operation of the Government as
other religious teacher or dignitary as such. specified in the budget. The form,
content, and manner of preparation of
Public money may be paid to a priest, preacher, the budget shall be prescribed by law.
minister, or dignitary if he is assigned to the armed
forces, or to any penal institution, or government Budget. The budget is only a proposal, a set of
orphanage or leprosarium. recommendations on the appropriations to be
made for the operations of the government. It is
General or specific appropriation. Whether the used as a basis for the enactment of the general
appropriation be general or specific, it must appropriations law.248
conform to the prohibition against the use of public
funds or property for sectarian purposes.247 The budget as a restriction on appropriations.
The Congress may not increase the appropriations
Purpose of the provision. This provision must be recommended by the President for the operation of
read with Article III, Section 5 on religious freedom the Government as specified in the budget.
and Article II, Section 6 on the separation of
Church and State. Its purpose is to further bolster Reason. The reason for the above provision is the
this principle and emphasize the neutrality of the theory that the President knows more about the
State in ecclesiastical matters. needed appropriations than the legislature.249 Being
responsible for the proper administration of the
E. Special Fund executive department, the President is ordinarily
the party best qualified to know the maximum
Section 29 amount that the operation of his department
(3) All money collected on any tax requires.250
levied for a special purpose shall be
treated as a special fund and paid out Preparation of Budget. The form, content, and
for such purpose only. If the purpose manner of preparation of the budget shall be
for which a special fund was created prescribed by law.
has been fulfilled or abandoned, the
balance, if any, shall be transferred to 2. Rule on riders
the general funds of the Government.
Section 25
Tax levied for a special purpose. All money (2) No provision or enactment shall
collected on any tax levied for a special purpose be embraced in the general
shall be treated as a special fund. appropriations bill unless it relates
specifically to some particular
For such purpose only. All money collected on appropriation therein. Any such
any tax levied for a special purpose shall be paid provision or enactment shall be
out for such purpose only. limited in its operation to the
appropriation to which it relates.
Balance to the general funds. If the purpose for (2001 Bar Question)
which a special fund was created has been fulfilled
or abandoned, the balance, if any, shall be Every provision or enactment in the general
transferred to the general funds of the appropriations bill must relate specifically to some
Government. particular appropriation therein.
F. General Appropriation
Budget and Appropriation 248
Cruz, Philippine Political Law, p. 161 (1995 ed.)
Rule on Riders 249
247 250
Cruz, Philippine Political Law, p. 164 (1995 ed.) Sinco, Philippine Political Law, p 216 (1954ed).

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Every such provision or enactment shall be limited

in its operation to the appropriation to which it Reason. This provision prohibits one department
relates from transferring some of its funds to another
department and thereby make it beholden to the
Purpose. To prevent riders or irrelevant provisions former to the detriment of the doctrine of separation
that are included in the general appropriations bill of powers. Such transfers are also unsystematic,
to ensure their approval.251 besides in effect disregarding the will of the
legislature that enacted the appropriation
Procedure in approving appropriations for the measure.252
Congress
(3) The procedure in approving Augmentation of item from savings. The
appropriations for the Congress shall President, the Senate President, the House
strictly follow the procedure for Speaker, the Chief Justice, and the heads of
approving appropriations for other Constitutional Commission may, by law, be
departments and agencies. authorized to augment any item in the general
appropriations law for their respective offices from
Same Procedure. The procedure in approving savings in other items of their respective
appropriations for the Congress shall strictly follow appropriations. In this case, there is no danger to
the procedure for approving appropriations for the doctrine of separation of powers because the
other departments and agencies. transfer is made within a department and not from
one department to another.253
Reason. To prevent the adoption of appropriations
sub rosa by the Congress. Exclusive list. The list of those who may be
authorized to transfer funds under this provision is
3. Special Appropriations bill exclusive. However, members of the Congress
may determine the necessity of realignment of the
savings. (PHILCONSA v. Enriquez)
(4) A special appropriations bill shall
specify the purpose for which it is 5. Discretionary funds
intended, and shall be supported by
funds actually available as certified by
the National Treasurer, or to be (6) Discretionary funds appropriated
raised by a corresponding revenue for particular officials shall be
proposal therein. disbursed only for public purposes to
be supported by appropriate
A special appropriations bill shall:
vouchers and subject to such
(1) Specify the purpose for which it is intended;
guidelines as may be prescribed by
(2) Be supported by funds actually available as
law.
certified by the National Treasurer; or
(3) Be supported by funds to be raised by a
corresponding revenue proposal therein. Public Purpose. Discretionary funds appropriated
for particular officials shall be disbursed only for
4. No transfer of appropriations public purposes to be supported by appropriate
vouchers and subject to such guidelines as may be
prescribed by law.
(5) No law shall be passed
authorizing any transfer of Reason. This was thought necessary in view of the
appropriations; however, the many abuses committed in the past in the use of
President, the President of the discretionary funds. In many cases, these funds
Senate, the Speaker of the House of were spent for personal purposes, to the prejudice
Representatives, the Chief Justice of and often even without the knowledge of the
the Supreme Court, and the heads of public.254
Constitutional Commissions may, by
law, be authorized to augment any 6. Automatic Reenactment
item in the general appropriations law
(1998 Bar Question)
for their respective offices from
savings in other items of their (7) If, by the end of any fiscal year,
respective appropriations. the Congress shall have failed to
pass the general appropriations bill
(1998 Bar Question)
for the ensuing fiscal year, the
Prohibition of transfer. No law shall be passed 252
authorizing any transfer of appropriations. 253
251 254
Cruz, Philippine Political Law, p. 162 (1995 ed.) Cruz, Philippine Political Law, p. 160 (1995 ed.)

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general appropriations law for and the exceptions therefrom,

preceding fiscal year shall be deemed whereby the people can directly
reenacted and shall remain in force propose and enact laws or approve or
and effect until the general reject any act or law or part thereof
appropriations bill is passed by the passed by the Congress or local
Congress. legislative body after the registration
of a petition therefor signed by at
Reason. This is to address a situation where least ten per centum of the total
Congress fails to enact a new general number of registered voters, of which
appropriations act for the incoming fiscal year. every legislative district must be
represented by at least three per
centum of the registered voters
XIII. OTHER PROHIBITED MEASURES thereof.
1. Initiative and referendum

Appellate Jurisdiction of Supreme Court The Congress shall as early as possible, provide
Title of Royalty and Nobility for a system of initiative and referendum, and the
exceptions therefrom.
A. Appellate Jurisdiction of Supreme Court
Petition. A petition must be signed by at least 10%
Section 30. No law shall be passed of the total number of registered voters, of which
increasing the appellate jurisdiction of every legislative district must be represented by at
the Supreme Court as provided in this least 3% of the registered voters thereof. The
Constitution without its advice and petition must then be registered.
concurrence.
RA 6735. The current implementing law is RA
Limitation on power of Congress. No law shall 6735, an Act Providing for System of Initiative and
be passed increasing the appellate jurisdiction of Referendum.
the Supreme Court as provided in this Constitution
without its advice and concurrence. 2. Initiative.
The power of the people to propose amendments
SC’s Advice and Concurrence Needed. The to the Constitution or to propose and enact
Congress may increase the appellate jurisdiction of legislation.
the SC but only with its advice and concurrence.
Three systems of Initiative:
Reason. To prevent further additions to the 1. Initiative on the Constitution
present tremendous case load of the Supreme
which refers to a petition proposing
Court which includes the backlog of the past
amendments to the Constitution;
decades.255
2. Initiative on statutes which
B. Titles of Royalty and Nobility refers to a petition proposing to enact a
national legislation.
Section 31. No law granting a title of 3. Initiative on local legislation
royalty or nobility shall be enacted. which refers to a petition proposing to enact a
regional, provincial, city, municipal or barangay
Reason. To preserve the republican and law, resolution or ordinance.
democratic nature of our society by prohibiting the
creation of privileged classes with special Local Initiative. Not less than 2,000 registered
perquisites not available to the rest of the citizenry. voters in case of autonomous regions, 1,000 in
case of provinces and cities, 100 in case of
municipalities, and 50 in case of barangays, may
XIV. INITIATIVE AND REFERENDUM
file a petition with the Regional Assembly or local
Initiative and Referendum legislative body, respectively, proposing the
initiative adoption, enactment, repeal, or amendment, of any
Referendum law, ordinance or resolution. (Sec. 13 RA 6735)
Section 32. The Congress shall as Limitations on local initiative:

early as possible, provide for a 1. The power of local initiative shall not be
system of initiative and referendum, exercised more than once a year;
2. Initiative shall extend only to subjects or
255
Cruz, Philippine Political Law, p. 146 (1995 ed.) matters which are within the legal matters

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which are within the legal powers of the local provides that the right of the people and their
legislative bodies to enact; organizations to participate in all levels of social,
3. If any time before the initiative is held, the local political, and economic decision-making shall not
legislative body shall adopt in toto the be abridged and that the State shall, by law,
proposition presented, the initiative shall be facilitate the establishment of adequate
cancelled. However, those against such action consultation mechanisms. Article XVII, Section 2 of
may if they so desire, apply for intitiative. the 1987 Constitution provides that subject to the
enactment of an implementing law, the people may
Q: Petitioners filed a petition with COMELEC directly propose amendments to the Constitution
to hold a plebiscite on their petition for an through initiative.
initiative to amend the Constitution by
adopting a unicameral-parliamentary form of
government and by providing for transitory
provisions.
A: An initiative to change the Constitution
applies only to an amendment and not
revision. Revision broadly implies a change
that alters basic principle in the Constitution
like altering the principle of separation of
powers or the system of checks and
balance. The initiative of the petitioners is a
revision and not merely an amendment.
(Lambino v. COMELEC)
3. Referendum
Power of the electorate to approve or reject
legislation through an election called for the
purpose.
Two Classes of Referendum

1. Referendum on statutes which refers to a
petition to approve or reject an act or la, or part
thereof, passed by Congress;
2. Referendum on local laws which refers to a
petition to approve or reject a law, resolution or
ordinance enacted by regional assemblies and
local legislative bodies. (Sec. 2(c) RA 6735)
Prohibited Measures. The following cannot be

subject of an initiative or referendum:
1. Petition embracing more than one subject shall
be submitted to the electorate.
2. Statutes involving emergency measures, the
enactment of which is specifically vested in
Congress by the Constitution, cannot be
subject to referendum until ninety(90) days
after their effectivity. (Sec. 10 RA 6735)
Q: Is the People Power recognized in the

Constitution? (1987, 2000 and 2003 Bar
Examinations)
A: “People power” is recognized in the
Constitution, Article III, Section 4 of the 1987
Constitution guarantees the right of the people
peaceable to assemble and petition the
government for redress of grievances. Article VI,
Section 32 of the 1987 Constitution requires
Congress to pass a law allowing the people to
directly propose or reject any act or law or part of it
passed by congress or a local legislative body.
Article XIII, Section 16 of the 1987 Constitution

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B. Executive Power, Scope
EXECUTIVE DEPARTMENT 1. The scope of power is set forth in the

Constitution specifically in Article VII.
I. Executive Power (§ 1) 2. However, Executive power is more

II. The President (§ 2-13) than the sum of specific powers enumerated in
the Constitution. It includes residual
III. The Vice-President powers257 not specifically mentioned in the
IV. Powers of the President Constitution. (Marcos v. Manglapus (1989)
V. Power of Appointment (§ 14-16)
The prosecution of crimes appertains to
VI. Power of Control (§ 17) the Executive Department, whose
VII. Military Powers (§ 18) responsibility is to see the laws are
VIII. Power of Executive Clemency faithfully executed. (Webb v. De Leon)258
(§ 19)
IX. Borrowing Power (§ 20) 3. BUT the President cannot dispose of
State property unless authorized by law.259
X. Foreign Affairs Power (§ 21) 4. Enforcement and administration of
XI. Budgetary Power (§ 22) election laws is the authority of the
XII. Informing Power (§ 23) COMELEC.260
XIII.Other Powers 5. BUT the President cannot create
public office without valid delegation from
Congress and subject to the Constitutional
I. EXECUTIVE POWER rules.261
C. Executive Power, Where Vested

Executive Power, (Definition)
Scope
The Executive power shall be vested in the
Where Vested
President of the Philippines.
Ceremonial Functions
Executive Immunity
D. Ceremonial Functions (Head of State)
Executive Privilege
Cabinet
In a presidential system, the presidency includes
many other functions than just being executive.
Section 1. The Executive power shall
The president is the [symbolic and] ceremonial
be vested in the President of the
head of the government of the [Philippines].262
Philippines
E. Executive Immunity from suit
A. Executive Power (Definition)
Rules on Immunity during tenure
The executive power is the power to enforce and
1. The President is immune
administer the laws.256 (NEA v. CA, 2002)
from suit during his tenure.263
256 257
Justice Irene Cortes in the case of Marcos v. Manglapus (1989) Residual Powers are those which are implicit in and correlative to
opines: “It would be inaccurate… to state that ‘executive power’ is the paramount duty residing in that office to safeguard and protect
the power to enforce laws, for the President is head of State as well general welfare.
as head of government and whatever power inhere in such positions 258
See Jacinto Jimenez, Political Law Compendium p.306 (2005 ed.)
pertain to the office unless the Constitution itself withholds it.” 259
See Laurel v. Garcia (Roponggi Case)
260
M.T., in his attempt to provide a comprehensive interpretation of Cruz, Philippine Political Law, p. 308 (1995 ed).
executive power provides: 261
Biraogo v. PTC, 2010.
“Executive power refers to the power of the President: 262
(a) to execute and administer laws (b) power enumerated in the See Bernas Commentary, p 800 (2003 ed).
263
Constitution (c) those powers that inhere to the President as head of The incumbent President is immune from suit or from being
state and head of government, and (d) residual powers.” brought to court during the period of their incumbency and tenure.
“Executive power refers to the totality of the President’s power.” (In re Saturnino Bermudez,1986)
“The President during his tenure of office or actual incumbency, may
According to Sinco, “Executive power refers to the legal and not be sued in ANY civil or criminal case. It will degrade the dignity
political functions of the President involving the exercise of of the high office of the President, the Head of State, if he can be
discretion. (Philippine Political Law, p.242 (1954 ed.) dragged into court litigations while serving as such.” (David v.

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2. He may be filed
impeachment complaint during his tenure. F. Executive Privilege
(Article XI) Definition
3. The President may not be How Invoked
prevented from instituting suit (Soliven v. Who may invoke
Makasiar) Privilege Not Absolute
4. There is nothing in our laws Types of Executive Privilege (Neri v. Senate)
that would prevent the President from waiving Variety of Executive Privilege (Senate v. Ermita)
the privilege. The President may shed the Kinds of Executive Privilege (Neri v. Senate)
protection afforded by the privilege. (Soliven v. Elements of Presidential Communications Privilege
Makasiar) Presidential Communications are Presumptively
5. Heads of departments Privileged
cannot invoke the presidents’ immunity (Gloria Executive Privilege v. Public Interest
v. CA) Power of Inquiry v. Executive Privilege
Rules on Immunity after tenure Case Digest of Neri v. Senate
6. Once out of office, even
1) Definition
before the end of the six year term, immunity
for non-official acts is lost. Such was the case Briefly and in simplest terms, it is the power of the
of Joseph Estrada. (See Bernas Commentary, President to withhold certain types of information
p 804 (2003 ed.) It could not be used to shield from the public, from the courts, and from
a non-sitting President from prosecution for Congress.
alleged criminal acts done while sitting in
office. (Estrada v. Disierto; See Romualdez v. 2) How invoked
Sandiganbayan) Invoked in relation to specific categories of
information. Executive privilege is properly
Note: In David v. Arroyo, the Court held that it is invoked in relation to specific categories of
improper to implead President Arroyo as information and not to categories of persons.
respondent. However, it is well to note that in (While executive privilege is a constitutional
Rubrico v. Arroyo, Min. Res., GR No, 180054, concept, a claim thereof may be valid or not
October 31, 2007, the Supreme Court ordered the depending on the ground invoked to justify it and
respondents, including President Arroyo, to make a the context in which it is made. Noticeably absent
return of the writ: “You, respondents President is any recognition that executive officials are
Macapagal Arroyo….are hereby required to make exempt from the duty to disclose information by the
a return of the writ before the Court of Appeals…” mere fact of being executive officials. (Senate v.
Ermita)
Reasons for the Privilege:
1. Separation of powers. The separation of 3) Who can invoke
powers principle is viewed as demanding the In light of this highly exceptional nature of the
executive’s independence from the judiciary, so privilege, the Court finds it essential to limit to the
that the President should not be subject to the President the power to invoke the privilege. She
judiciary’s whim.264 may of course authorize the Executive Secretary
2. Public convenience. By reason of public to invoke the privilege on her behalf, in which case
convenience, the grant is to assure the exercise of the Executive Secretary must state that the
presidential duties and functions free from any authority is "By order of the President," which
hindrance or distraction, considering that the Chief means that he personally consulted with her. The
Executive is a job that, aside from requiring all of privilege being an extraordinary power, it must be
the office-holder’s time, also demands undivided wielded only by the highest official in the executive
attention (Soliven v. Makasiar) hierarchy. In other words, the President may not
authorize her subordinates to exercise such power.
[Ermita])
(Senate v. Ermita) (It follows, therefore, that when an
official is being summoned by Congress on a matter
Article VII, Section 17 (1st Sentence) of the 1973 Constitution
which, in his own judgment, might be covered by
provides: “The President shall be immune from suit during his
executive privilege, he must be afforded reasonable time
tenure.” The immunity granted by the 1st sentence while the President
to inform the President or the Executive Secretary of
was in office was absolute. The intent was to give the President
the possible need for invoking the privilege. This is
absolute immunity even for wrongdoing committed during his
necessary in order to provide the President or the
tenure. (Bernas, Philippine Political Law, 1984) Although the new
Executive Secretary with fair opportunity to consider
Constitution has not reproduced the explicit guarantee of presidential
whether the matter indeed calls for a claim of executive
immunity from suit under the 1973 Constitution, presidential
privilege. If, after the lapse of that reasonable time,
immunity during tenure remains as part of the law.
neither the President nor the Executive Secretary invokes
(See Bernas Commentary, p 804 (2003 ed.)
the privilege, Congress is no longer bound to respect the
264 failure of the official to appear before Congress and may
See Almonte v. Vasquez

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then opt to avail of the necessary legal means to compel confidential formulated
his appearance.) (Senate v. Ermita) Applies to decision Applies to decision
making of the President making of executive
4) Privilege Not Absolute officials
Claim of executive privilege is subject to balancing Rooted in the Rooted on common
against other interest. In other words, constitutional principle law privileges
confidentiality in executive privilege is not of separation of powers
absolutely protected by the Constitution. Neither and the President’s
the doctrine of separation of powers, nor the need unique constitutional
for confidentiality of high-level communications, role
without more, can sustain an absolute, unqualified Applies to documents in
Presidential privilege of immunity from judicial their entirety and covers
process under all circumstances. (Neri v. Senate) final and post decisional
A claim of executive privilege does not guard materials as well as pre-
against a possible disclosure of a crime or deliberative ones
wrongdoing (Neri v. Senate)
8) Elements of presidential communications
5) Types of Executive Privilege265 privilege (Neri v. Senate)
1. State secrets (regarding military, diplomatic and 1) The protected communication must relate to a
other security matters) “quintessential and non-delegable presidential
2. Identity of government informers power.”
3. Information related to pending investigations 2) The communication must be authored or
4. Presidential communications “solicited and received” by a close advisor of the
5. Deliberative process President or the President himself. The judicial test
is that an advisor must be in “operational proximity”
6) Variety of Executive Privilege according to with the President.
Tribe (Tribe cited in Senate v. Ermita) 3) The presidential communications privilege
1.State Secrets Privilege. that the information is remains a qualified privilege that may be overcome
of such nature that its disclosure would subvert by a showing of adequate need, such that the
crucial military or diplomatic objectives; information sought “likely contains important
(2)Informer’s privilege. Privilege of the evidence” and by the unavailability of the
Government not to disclose the identity of information elsewhere by an appropriate
persons who furnish information of violations of investigating authority.
law to officers charged with the enforcement of
that law. 9) Presidential Communications are
(3) General Privilege. For internal deliberations. Presumptively Privileged
Said to attach to intragovernmental documents The presumption is based on the President’s
reflecting advisory opinions, recommnendations generalized interest in confidentiality. The privilege
and deliberations comprising part of a process by is necessary to guarantee the candor of
which governmental decisions and policies presidential advisors and to provide the President
formulated. and those who assist him with freedom to
explore alternatives in the process of shaping
7) Two Kinds of Privilege under In re: Sealed policies and making decisions and to do so in a
Case (Neri v. Senate) way many would be unwilling to express except
1. Presidential Communications Privilege privately.
2. Deliberative Process Privilege The presumption can be overcome only by
mere showing of public need by the branch
Presidential Deliberative seeking access to conversations. The courts are
Communications Process Privilege enjoined to resolve the competing interests of the
Privilege political branches of the government “in the
Pertains to Includes advisory manner that preserves the essential functions of
communications, opinions, each Branch.”
documents or other recommendations
materials that reflect and deliberations xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
presidential decision comprising part of a
making and process by which 10) Executive Privilege and the Public
deliberations that the governmental The Court held that this jurisdiction recognizes the
President believes decisions and common law holding that there is a “governmental
should remain policies are privilege against public disclosure with respect to
state secrets regarding military, diplomatic and
265
Primer on Neri v. Senate made by Atty. Carlos Medina.

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other national security matters and cabinet closed proximity” test, petitioner can be considered a close
door meetings.” (Chavez v. PCGG) advisor, being a member of President Arroyo’s cabinet.
Third, there is no adequate showing of a compelling
need that would justify the limitation of the privilege and
11) Power of Inquiry v. Executive Privilege
of the unavailability of the information elsewhere by
an appropriate investigating authority. The record is
Requirement in invoking the privilege: formal bereft of any categorical explanation from respondent
claim of privilege. “Congress has undoubtedly Committees to show a compelling or critical need for
has a right to information from the executive branch the answers to the three (3) questions in the enactment
whenever it is sought in aid of legislation. If the of a law.
executive branch withholds such information on the (2) Yes. The Supreme Court said that the Senate
Committees committed grave abuse of discretion in
ground that it is privileged, it must so assert it citing Neri in contempt. The following reason among
and state the reason therefore and why it must others was given by the Supreme Court:
be respected.” (Justice Carpio Morales in Senate a. There was a
v. Ermita) legitimate claim of executive privilege.
A formal and proper claim of executive privilege For the claim to be properly invoked, there must be
requires a specific designation and description a formal claim by the President stating the “precise
of the documents within its scope as well as and certain reason” for preserving confidentiality.
precise and certain reasons for preserving their The grounds relied upon by Executive Secretary
Ermita are specific enough, since what is required is
confidentiality. Without this specificity, it is
only that an allegation be made “whether the
impossible for a court to analyze the claim short of information demanded involves military or diplomatic
disclosure of the very thing sought to be protected. secrets, closed-door Cabinet meetings, etc.” The
Upon the other hand, Congress must not require particular ground must only be specified, and the
the executive to state the reasons for the claim with following statement of grounds by Executive
such particularity as to compel disclosure of the Secretary Ermita satisfies the requirement: “The
information which the privilege is meant to protect. context in which executive privilege is being invoked
(Senate v. Ermita) is that the information sought to be disclosed might
impair our diplomatic as well as economic relations
with the People’s Republic of China.”
12) Neri v. Senate Committee
Background: Comments on Neri v. Senate
This case is about the Senate investigation of Atty Medina: The ruling expands the area of
anomalies concerning the NBN-ZTE project. During
the hearings, former NEDA head Romulo Neri
information that is not accessible to the public.
refused to answer certain questions involving his Executive privilege can now be invoked in
conversations with President Arroyo on the ground communications between his close advisors. (See
they are covered by executive privilege. When the the second element in the presidential
Senate cited him in contempt and ordered his arrest, communications privilege)
Neri filed a case against the Senate with the Bernas: The problem with the doctrine is, anytime
Supreme Court. On March 25, 2008, the Supreme the President says “That’s covered”, that’s it.
Court ruled in favor of Neri and upheld the claim of Nobody can ask anymore questions.
executive privilege.
Issues:
ASM: I think when the President says, “It’s
(1) . Are the communications sought to be elicited by covered,” the Court can still make an inquiry under
the three questions covered by executive privilege? the Grave Abuse Clause. This inquiry can be done
(2) Did the Senate Committees commit grave abuse in an executive session.
of discretion in citing Neri in contempt and ordering
his arrest? G. Cabinet
Ruling: Extra-constitutional creation
(1) The SC said that the communications sought to
be elicited by the three questions are covered by the Composition
presidential communications privilege, which is one Prohibitions
type of executive privilege. Vice-President
Using the elements of presidential communications Ex-officio Capacity
privilege, the SC is convinced that the communications Prohibited Employment
elicited by the three (3) questions are covered by the Prohibited Compensation
presidential communications privilege.
First, the communications relate to a “quintessential 1. Extra-constitutional creation
and non-delegable power” of the President, i.e. the
power to enter into an executive agreement with other Although the Constitution mentions the Cabinet a
countries. This authority of the President to enter into number of times, the Cabinet itself as an institution
executive agreements without the concurrence of the is extra-constitutionally created. 266
Legislature has traditionally been recognized in
Philippine jurisprudence. 2. Composition
Second, the communications are “received” by a close
advisor of the President. Under the “operational 266
Bernas Commentary, p 808 (2003 ed).; See art.7 secs. 3, 11 and
13.

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It is essentially consist of the heads of departments advice on the actions of the heads of various
who through usage have formed a body of executive departments and agencies and to review
presidential adviser who meet regularly with the investigations involving other presidential
President.267 appointees, he may not occupy a position in any of
the offices whose performance he must review. It
3. Prohibitions (1987, 1996 Bar Question) would involve occupying incompatible positions.
(Applies to Members of Cabinet, their deputies or Thus he cannot be Chairman at the same time of
assistants.) the PCGG since the PCGG answers to the
1. Unless otherwise provided in President.269
the Constitution, shall not hold any other
employment during their tenure. 7. Prohibited Compensation
2. Shall not directly or indirectly When an Undersecretary sits for a Secretary in a
practice any other profession, participate in function from which the Secretary may not receive
any business, or be financially interested in additional compensation, the prohibition on the
any contract with, or in any franchise or special Secretary also applies t the Undersecretary.270
privilege granted by the government or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled II. The President
corporations or their subsidiaries during their
tenure.
3. Strictly avoid conflict of Who is he?
interest in the conduct of their office during Qualifications
their tenure. (Section 13) Election
Term of Office
4. Vice-President Oath of Office
Note that the VP may be appointed to the Cabinet, Privileges
without need of confirmation by the Commission on Prohibitions/Inhibitions
Appointments; and the Secretary of Justice is an Vacancy Situations
ex officio member of the Judicial and Bar Council. Rules of Succession
Temporary Disability
5. Ex-officio268 capacity (2002 Bar Question) Serious Illness
Removal from Office
The prohibition must not be construed as applying
to posts occupied by the Executive officials without A. Who is the President
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 The President is the Head of State and the Chief
that the posts do not comprise “any other office” Executive.271 (He is the executive) He is the
within the contemplation of the constitutional repository of all executive power.272
prohibition, but properly an imposition of additional
duties and functions on said officials. B. Qualifications
To illustrate, the Secretary of Transportation and Qualifications
Communications is the ex officio Chirman of the Reason for Qualifications
Board of Philippine Ports Authority. The ex officio Qualifications are exclusive
position being actually and in legal contemplation Natural Born
part of the principal office, it follows that the official Registered Voter
concerned has no right to receive additional Age
compensation for his services in said position. The Registered Qualification
reason is that these services are already paid for
and covered by the compensation attached to the Section 2. No person may be elected
principal office. (National Amnesty Commission v. President unless he is a natural-born
COA, 2004) citizen of the Philippines, a registered
voter, able to read and write, at least
6. Prohibited Employment forty years of age on the day of the
Since the Chief Presidential Legal Counsel has the election, and a resident of the
duty of giving independent and impartial legal
269
Public Interest Group v Elma, G. R. No. 138965, June 30,
267
Bernas Commentary, p 808 (2003 ed). 2006.
268
An ex-oficio position is one which an official holds but is 270
Bitonio v. COA, G.R. No. 147392, March 12, 2004.
germane to the nature of the original position. It is by virtue of the 271
original position that he holds the latter, therefore such is Bernas Primer at 289 (2006 ed.)
272
constitutional. Sinco, Philippine Political Law, p.240 (1954 ed.)

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Philippines for at least ten years Special Election

immediately preceding such election. Congress as Canvassing Board
Who will be Proclaimed
1. Qualifications Presidential Electoral Tribunal
1. Natural born citizen of the Phils.
2. Registered voter Section 4. The President and the Vice-
3. Able to read write President shall be elected by direct vote of the
4. At least 40 years of age o the day of people for a term of six years which shall begin
the election at noon on the thirtieth day of June next
5. A resident of the Philippines for at following the day of the election and shall end
least 10 years immediately preceding the at noon of the same date six years thereafter.
election. The President shall not be eligible for any
reelection. No person who has succeeded as
2. Reason for Qualifications President and has served as such for more
than four years shall be qualified for election to
Qualifications are prescribed for public office to
the same office at any time.
ensure the proper performance of powers and
No Vice-President shall serve for more than two
duties.273 successive terms. Voluntary renunciation of the
office for any length of time shall not be considered
3. Qualifications are exclusive as an interruption in the continuity of the service for
The above qualifications are exclusive and may not the full term for which he was elected.
be reduced or increased by Congress. The Unless otherwise provided by law, the regular
applicable rule of interpretation is expression unius election for President and Vice-President shall
est exclusio alterius.274 be held on the second Monday of May.
The returns of every election for President and
4. Natural Born Vice-President, duly certified by the board of
One who is a citizen of the Philippines from birth canvassers of each province or city, shall be
without having to perform any act to acquire or transmitted to the Congress, directed to the
perfect his Philippine citizenship. (Article IV, President of the Senate. Upon receipt of the
Section 2) certificates of canvass, the President of the
Senate shall, not later than thirty days after the
An illegitimate child of an American mother and a day of the election, open all the certificates in
Filipino father is a natural born Filipino citizen if the presence of the Senate and the House of
paternity is clearly proved. Hence such person Representatives in joint public session, and the
would be qualified to run for President. This was Congress, upon determination of the
the case of Fernando Poe, Jr. (Tecson v. COMELEC) authenticity and due execution thereof in the
manner provided by law, canvass the votes.
5. Registered Voter The person having the highest number of votes
Possession of the qualifications for suffrage as shall be proclaimed elected, but in case two or
enumerated in Article V, Section 1. more shall have an equal and highest number
of votes, one of them shall forthwith be chosen
6. Age by the vote of a majority of all the Members of
both Houses of the Congress, voting
The age qualification must be possessed “on the separately.
day of the election for President” that is, on the day The Congress shall promulgate its rules for the
set by law on which the votes are cast.275 canvassing of the certificates.
The Supreme Court, sitting en banc, shall be
7. Residence Qualification the sole judge of all contests relating to the
The object being to ensure close touch by the election, returns, and qualifications of the
President with the country of which he is to be the President or Vice-President, and may
highest official and familiarity with its conditions promulgate its rules for the purpose.
and problems, the better for him to discharge his
duties effectively.276 1. Regular Election
C. Election The President (and Vice-President) shall be
elected by direct vote of the people. Unless
Regular Election otherwise provided by law, the regular election for
President (and Vice-President) shall be held on the
273 second Monday of May.
274
275 2. Special Election (Discussed under Section 10)
276

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3. Congress as Canvassing Board prohibited from making an “unofficial” canvass of

The returns of every election for President and said votes. (Brilantes v. Comelec, 2004)
Vice-President, duly certified by the board of
canvassers of each province or city, shall be The proclamation of presidential and vice-
transmitted to the Congress, directed to the presidential winners is a function of Congress
President of the Senate. Upon receipt of the and not of Comelec (Macalintal v. COMELEC)
certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the Congress may continue the canvass even after
election, open all the certificates in the presence of the final adjournment of its session. The final
the Senate and the House of Representatives in adjournment of Congress does not terminate an
joint public session, and the Congress, upon unfinished presidential canvass. Adjournment
determination of the authenticity and due terminates legislation but not the non-legislative
execution thereof in the manner provided by functions of Congress such as canvassing of
law, canvass the votes. The Congress shall votes. (Pimentel v. Joint Committee of
promulgate its rules for the canvassing of the Congress, 2004)
certificates.
4. Who will be proclaimed
Is the function of Congress merely The person having the highest number of votes
ministerial? shall be proclaimed elected, but in case two or
Bernas: The function of Congress is not merely more shall have an equal and highest number of
ministerial. It has authority to examine the votes, one of them shall forthwith be chosen by the
certificates of canvass for authenticity and due vote of a majority of all the Members of both
execution. For this purpose, Congress must pass Houses of the Congress, voting separately.
a law governing their canvassing of votes.277
Cruz: As the canvass is regarded merely as a 5. Presidential Electoral Tribunal
ministerial function, the Congress shall not have The Supreme Court, sitting en banc, shall be
the power to inquire into or decide questions of the sole judge of all contests relating to the
alleged irregularities in the conduct of the
election, returns, and qualifications of the
election contest. Normally, as long as the
election returns are duly certified and appear to President or Vice-President, and may
be authentic, the Congress shall have no duty promulgate its rules for the purpose.
but to canvass the same and to proclaim as
elected the person receiving the highest number Q: Can Susan Roces, widow of Fernando Poe.
of votes.278 Jr, intervene and/or substitute for him, assuming
Justice Carpio Morales: This duty has been arguendo that the protest could survive his
characterized as being ministerial and death?
executive.279 A: No. The fundamental rule applicable in a
presidential election protest is Rule 14 of the
Validity of Joint Congressional Committee. PET Rules. It provides that only the 2nd and 3rd
Congress may validly delegate the initial placer may contest the election. The Rule
determination of the authenticity and due effectively excludes the widow of a losing
execution of the certificates of canvass to a Joint candidate.280 (Fernando Poe v. Arroyo)
Congressional Committee so long as the
decisions and final report of the said Committee The validity, authenticity and correctness of the
shall be subject to the approval of the joint SOVs and COCs are under the Tribunal’s
session of Both Houses of Congress voting jurisdiction. The constitutional function as well as
separately. (Lopez v. Senate, 2004) the power and the duty to be the sole judge of all
contests relating to election, returns and
COMELEC. There is no constitutional or qualification of President and Vice-President is
statutory basis for COMELEC to undertake a expressly vested in the PET in Section 4 Article
separate and “unofficial” tabulation of result VII of the Constitution. Included therein is the
whether manually or electronically. If Comelec is duty to correct manifest errors in the SOVs and
proscribed from conducting an official canvass of COCs. (Legarda v. De Castro, 2005)
the votes cast for the President and Vice-
President, the Comelec is, with more reason, Q: After Fidel Ramos was declared President,
defeated candidate Miriam Defensor Santiago
filed an election protest with the SC.
277
Bernas Primer at 293 (2006 ed.) Subsequently, while the case is pending, she ran
278
Cruz, Philippine Political Law, p. 176 (1995 ed). for the office of Senator and, having been
279
Separate Opinion of Justice Carpio Morales in Pimentel v. Joint 280
Committee (June 22, 2004) citing Lopez v. Roxas, 17 SCRA 756, Fernando Poe, Jr. v. Arroyo, P.E.T. CASE No. 002.
769 (1966) March 29, 2005.

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declared elected, assumed office as Senator. F. Privileges

What happens to her election protest? 1. Official Residence
A: Her protest is deemed abandoned with her 2. Salary
election and assumption of office as Senator. 3. Immunity from suit
(Defensor Santiago v. Ramos)
Section 6. The President shall have
D. Term of Office an official residence. The salaries of
the President and Vice-President shall
6 years. The President (and the Vice-President) be determined by law and shall not be
shall be elected by direct vote of the people for a decreased during their tenure. No
term of six years. increase in said compensation shall
take effect until after the expiration of
Noon of June 30.Term hall begin at noon on the the term of the incumbent during
thirtieth day of June next following the day of the which such increase was approved.
election and shall end at noon of the same date six They shall not receive during their
years thereafter. tenure any other emolument from the
Government or any other source.
No re-election. The President shall not be eligible
for any reelection. No person who has succeeded 1. Official Residence
as President and has served as such for more than The President shall have an official residence.
four years shall be qualified for election to the
same office at any time. 2. Salary
The salaries of the President and Vice-President
Reason for prohibition on any reelection for
shall be determined by law and shall not be
Presidency. It was thought that the elimination of
decreased during their tenure.
the prospect of reelection would make for a more
The initial salary of the President is 300,00 per
independent President capable of making correct
year. (Article XVIII Section 17)
even unpopular decisions.281 He is expected to
No increase during their term. No increase in
devote his attention during his lone term to the
said compensation shall take effect until after the
proper discharge of his office instead of using its
expiration of the term of the incumbent during
perquisites to ensure his remaining therein for
which such increase was approved.
another term.282
No additional emolument during their tenure.
They shall not receive during their tenure any other
E. Oath of Office
emolument from the Government or any other
source.
Section 5. Before they enter on the
execution of their office, the 3. Immunity from Suit
President, the Vice-President, or the (Discussed under Section 1 [I(E)])
Acting President shall take the
following oath or affirmation: G. Prohibitions/Inhibitions
“I do solemnly swear (or affirm) that I
will faithfully and conscientiously fulfill
Section 13. The President, Vice-President, the
my duties as President (or Vice- Members of the Cabinet, and their deputies or
President or Acting President) of the assistants shall not, unless otherwise provided in this
Philippines, preserve and defend its Constitution, hold any other office or employment
Constitution, execute its laws, do during their tenure. They shall not, during said tenure,
justice to every man, and consecrate directly or indirectly, practice any other profession,
myself to the service of the Nation. So participate in any business, or be financially interested
help me God.” in any contract with, or in any franchise, or special
(In case of affirmation, last sentence privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including
will be omitted.) government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest
Oath. The oath is not a source of substantive in the conduct of their office.
power but is merely intended to deepen the sense The spouse and relatives by consanguinity or affinity
of responsibility of the President and ensure a within the fourth civil degree of the President shall not
more conscientious discharge of his office.283 during his tenure be appointed as Members of the
Constitutional Commissions, or the Office of the
Ombudsman, or a Secretaries, Undersecretaries,
281 chairmen or heads of bureaus or offices, including
Bernas Commentary, p 812 (2003 ed). government-owned or controlled corporations and their
282
Cruz, Philippine Political Law, p. 177 (1995 ed). subsidiaries.
283

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personal advantage. Officers mention under

Prohibitions: Section 13 (except the VP who may be appointed
1. Shall not receive increase to the Cabinet) are inhibited from holding any other
compensation during the term of the office or employment in the government during
incumbent during which such increase was their tenure. This will discontinue the lucrative
approved. (sec 6) practice of Cabinet members occupying seats in
the boards of directors of affluent corporations
2. Shall not receive any other owned or controlled by the government from which
emoluments from the government or any other they derived substantial income in addition to their
source during their tenure. (sec 6) regular salaries. The second paragraph of Section
3. Unless otherwise provided in 13 is intended as a guarantee against nepotism.286
the Constitution, shall not hold any other
employment during their tenure. H. Vacancy
4. Shall not directly or indirectly
practice any other profession, participate in Section 7. The President-elect and the Vice-President-
any business, or be financially interested in elect shall assume office at the beginning of their
any contract with, or in any franchise or special terms.
privilege granted by the government or any If the President-elect fails to qualify, the Vice-
subdivision, agency, or instrumentality thereof, President-elect shall act as President until the
President-elect shall have qualified.
including government-owned or controlled If a President shall not have been chosen, the Vice-
corporations or their subsidiaries during their President-elect shall act as President until a President
tenure. shall have been chosen and qualified.
5. Strictly avoid conflict of If at the beginning of the term of the President, the
interest in the conduct of their office during President-elect shall have died or shall have become
permanently disabled, the Vice-President-elect shall
their tenure. become President.
6. May not appoint spouse or Where no President and Vice-President shall have
relatives by consanguinity or affinity within the been chosen or shall have qualified, or where both
fourth civil degree as Member of Constitutional shall have died or become permanently disabled, the
Commissions or the Office of the Ombudsman, President of the Senate or, in case of his inability, the
or as Secretaries, Under Secretaries, Speaker of the House of Representatives shall act as
chairmen or heads of bureaus or offices, President until a President or a Vice-President shall
including government-owned or controlled have been chosen and qualified.
The Congress shall, by law, provide for the manner in
corporations and their subsidiaries. which one who is to act as President shall be selected
Note: Nos. 1-6 above applies to the President. 1-5 until a President or a Vice-President shall have
applies to the Vice-President. 3-5 applies to qualified, in case of death, permanent disability, or
Members of Cabinet, their deputies or assistants. inability of the officials mentioned in the next preceding
paragraph.
Prohibition against increase of compensation
during tenure. The prohibition against the change Section 8. In case of death, permanent disability,
of their salary either by reduction or increase removal from office, or resignation of the President, the
during their term is meant to prevent the legislature Vice-President shall become the President to serve the
from “weakening the fortitude by appealing to their unexpired term. In case of death, permanent disability,
avarice or corrupting their integrity by operating on removal from office, or resignation of both the
President and Vice-President, the President of the
their necessities. 284
Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President
Emoluments. The emoluments which they may until the President or Vice-President shall have been
not receive during their tenure from the elected and qualified.
government or any other source (that is, private) The Congress shall, by law, provide who shall serve as
refers to any compensation received for services President in case of death, permanent disability, or
rendered or form possession of an office. This resignation of the Acting President. He shall serve until
means that the President cannot accept other the President or the Vice-President shall have been
elected and qualified, and be subject to the same
employment elsewhere, whether in the government
restrictions of powers and disqualifications as the
or in the private sector, and must confine himself to Acting President.
the duties of his office.285
Section 10. The Congress shall, at ten o’clock in the
Reason for Inhibitions under Section 13. The
morning of the third day after the vacancy in the offices
inhibitions are in line with the principle that a public of the President and Vice-President occurs, convene in
office is a public trust and should not be abused for accordance with its rules without need of a call and
within seven days enact a law calling for a special
284
285 286
Cruz, Philippine Political Law, p. 183 (1995 ed). Cruz, Philippine Political Law, p. 185 (1995 ed).

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election to elect a President and a Vice-President to be term

held not earlier than forty-five days nor later than sixty
days from the time of such call. The bill calling such 2. When no President has yet
special election shall be deemed certified under been chosen at the time he is
paragraph 2, Section 26, Article VI of this Constitution supposed to assume office.
and shall become law upon its approval on third 3. When the President-elect Vice-President elect
reading by the Congress. Appropriations for the special dies or is permanently becomes President
election shall be charged against any current incapacitated before the
appropriations and shall be exempt from the beginning of his term
requirements of paragraph 4, Section 25, Article VI of 4. When both the President The Senate President or
this Constitution. The convening of the Congress and Vice-President have not the Speaker- in that order-
cannot be suspended nor the special election yet been chosen or have acts as President until a
postponed. No special election shall be called if the failed to qualify
President or Vice-
vacancy occurs within eighteen months before the date
of the next presidential election. 5. When both shall have died President qualifies.
or become permanently
Vacancy Situations: incapacitated at the start of
the term.
1. Vacancy that occurs at the start of the
6. When the Senate Congress will decide by
term (Sec 7) President and the Speaker of
2. Vacancy that occurs in mid-term (Sec law who will act as
the House shall have died or President until a President
8) shall have become
3. Vacancy in both the presidency and or Vice-President shall
permanently incapacitated, or
have been elected and
vice-presidency. (Section 10) are unable to assume office.
qualified.
Vacancy Situations under Section 7:
(The vacancy situations here occur after the office Section 8
has been initially filled.) Reason for Vacancy Succession
1. When a President has been chosen but 1. When the incumbent The vacancy created is
President dies or is thus permanent. The Vice-
fails to qualify at the beginning of his term permanently disabled, is
2. When no President has yet been chosen President becomes
removed or resigns.
at the time he is supposed to assume office. President.
3. When the President-elect dies or is 2. When both the President The Senate President or
and the Vice-President die, or the Speaker-in that order-
permanently incapacitated before the
are permanently disabled, are shall act as President until
beginning of his term removed, or resign.
4. When both the President and Vice- a President of Vice-
President have not yet been chosen or have President shall have been
failed to qualify qualified.
5. When both shall have died or become 3. When the Acting President Congress will determine
dies, or is permanently by law who will act as
permanently incapacitated at the start of the
incapacitated, is removed or President until a new
term. resigns.
President or Vice-
6. When the Senate President and the
President shall have
Speaker of the House shall have died or shall
qualified.
have become permanently incapacitated, or
are unable to assume office.
Resignation. In Estrada v. Macapagal-Arroyo, the
SC through Justice Puno (main opinion) declared
Vacancy Situation under Section 8
that the resignation of President Estrada could not
(Vacancy that occurs in mid-term)
be doubted as confirmed by his leaving
1. When the incumbent President dies or is
Malacanang. The SC declared that the elements of
permanently disabled, is removed or resigns.
a valid resignation are (1) intent to resign; and (2)
2. When both the President and the Vice-
act of relinquishment. Both were present when
President die, or are permanently disabled, are
President Estrada left the Palace. Justice Puno
removed, or resign.
anchored his opinion mainly on the letter of
3. When the Acting President dies, or is
Estrada and on the diary of ES Edgardo Angara.
permanently incapacitated, is removed or resigns.
Permanent Disability. In Estrada v. Macapagal-
I. Rules of Succession
Arroyo, Justice Bellosillo anchored his concurrence
on permanent disability. He opined that permanent
Section 7 disability as contemplated by the Constitution does
Reason for Vacancy Succession not refer only to physical or mental incapacity, but
1. When a President has The Vice-President must likewise cover other forms of incapacities of a
been chosen but fails to becomes acting President
qualify at the beginning of his
permanent nature, e.g. functional disability.
until a President qualifies

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He views Estrada’s disability in (a) objective and No suspension or postponement. The convening
(b) subjective perspectives. of the Congress cannot be suspended nor the
Objective Approach. “Without people, an effectively special election postponed.
functioning cabinet, the military and the police, with
no recognition from Congress and the international No special elections. No special election shall be
community, [Estrada] had absolutely no support called if the vacancy occurs within eighteen months
from and control of the bureaucracy from within before the date of the next presidential election.
and from without. In fact he had no more
functioning government to speak of. It is in this J. Temporary Disability
context that [Estrada] was deemed absolutely
unable to exercise or discharge the powers, duties Section 11. Whenever the President transmits to the
and prerogatives of the Presidency. President of the Senate and the Speaker of the House
Subjective Approach. [Estrada’s] contemporaneous of Representatives his written declaration that he is
acts and statements during and after the critical unable to discharge the powers and duties of his office,
episode are eloquent proofs of his implied-but and until he transmits to them a written declaration to
nevertheless unequivocal-acknowledgment of the the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.
permanence of his disability. Whenever a majority of all the Members of the Cabinet
transmit to the President of the Senate and to the
Comment on Estrada v. Macapagal-Arroyo Speaker of the House of Representatives their written
Bernas: In sum, 3 justices (Puno, Vitug and Pardo) declaration that the President is unable to discharge
accepted some form of resignation; 2 jsutices the powers and duties of his office, the Vice-President
(Mendoza and Bellosillo) saw permanent disability; shall immediately assume the powers and duties of the
3 justices (Kapuna, Yners Santiago and Sandoval- office as Acting President.
Gutierrez) accepted the presidency of Arroyo as an Thereafter, when the President transmits to the
President of the Senate and to the Speaker of the
irreversible fact. 5 justices (Quisumbing, Melo, House of Representatives his written declaration that
Buena, De Leon and gonzaga-Reyes) signed the no inability exists, he shall reassume the powers and
decision without expressing any opinion. Davide duties of his office. Meanwhile, should a majority of all
and Panganiban abstained. In the light of all this, it the Members of the Cabinet transmit within five days to
is not clear what doctrine was established by the President of the Senate and to the Speaker of the
the decision.287 House of Representatives their written declaration that
the President is unable to discharge the powers and
When the Senate President or Speaker becomes duties of his office, the Congress shall decide the
issue. For that purpose, the Congress shall convene, if
Acting President, he does not lose the Senate it is not in session, within forty-eight hours, in
presidency or the speakership.288 accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last
Section 10 written declaration, or, if not in session, within twelve
Call not needed. The Congress shall, at ten days after it is required to assemble, determines by a
o’clock in the morning of the third day after the two-thirds vote of both Houses, voting separately, that
vacancy in the offices of the President and Vice- the President is unable to discharge the powers and
President occurs, convene in accordance with its duties of his office, the Vice- President shall act as
President; otherwise, the President shall continue
rules without need of a call and within seven days exercising the powers and duties of his office.
enact a law calling for a special election to elect a
President and a Vice-President to be held not
K. Serious Illness
earlier than forty-five days nor later than sixty days
from the time of such call.
Bill deemed certified. The bill calling such special Section 12. In case of serious illness of the President,
election shall be deemed certified under paragraph the public shall be informed of the state of his health.
The members of the Cabinet in charge of national
2, Section 26, Article V1 of this Constitution and security and foreign relations and the Chief of Staff of
shall become law upon its approval on third the Armed Forces of the Philippines, shall not be
reading by the Congress. denied access to the President during such illness.
Appropriations. Appropriations for the special Section 12 envisions not just illness which
election shall be charged against any current incapacitates but also any serious illness which can
appropriations and shall be exempt from the be a matter of national concern.289
requirements of paragraph 4, Section 25, Article V1
of this Constitution. Reason for informing the public. To guarantee
the people’s right to know about the state of
287
288
289

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President’s health, contrary to secretive practice in as an interruption in the continuity of the service for
totalitarian regimes.290 the full term for which he was elected. (Section 4)
Who has the duty to inform? The section does C. Oath of Office
not specify the officer on whom the duty devolves.
It is understood that the Office of the President Same as the President. See Section 5.
would be responsible for making the disclosure.
D. Prohibitions and Inhibitions
Reason of the access. To allow the President to
make the important decisions in those areas of
government.291
1. Shall not receive increase
compensation during the term of the
L. Removal from Office incumbent during which such increase was
approved. (sec 6)
2. Shall not receive any other
Ways of removal from office:
emoluments from the government or any other
1. By Impeachment
source during their tenure. (sec 6)
2. By People Power
3. Unless otherwise provided in
3. By Killing the President (e.g. the Constitution, shall not hold any other
Assassination)292 employment during their tenure.
(Number 2 is extra constitutional and Number 3 is illegal. –asm). 4. Shall not directly or indirectly
(But for purposes of examinations, answer number 1 only) practice any other profession, participate in
(Impeachment will be discussed under Article XI) any business, or be financially interested in
any contract with, or in any franchise or special
III. The Vice- President privilege granted by the government or any
subdivision, agency, or instrumentality thereof,
Who is the Vice-President including government-owned or controlled
Qualifications, Election, Term of Office corporations or their subsidiaries during their
Oath of Office tenure.
Prohibitions/Inhibitions 5. Strictly avoid conflict of
Vacancy interest in the conduct of their office during
Removal from Office their tenure. (Section 13)
Appointment to Cabinet
E. Vacancy in the Vice-Presidency
A. Who is the Vice-President
Section 9. Whenever there is a vacancy in the Office
of the Vice-President during the term for which he was
His function is to be on hand to act as President
elected, the President shall nominate a Vice-President
when needed or to succeed to the presidency in from among the Members of the Senate and the House
case of a permanent vacancy in the office. The of Representatives who shall assume office upon
President may also appoint him as a Member of confirmation by a majority vote of all the Members of
the Cabinet. Such appointment does not need the both Houses of the Congress, voting separately.
consent of the Commission on Appointments.293
F. Removal from Office
B. Qualifications, Election, Term of Office
He may be removed from office in the same
Section 3. There shall be a Vice-President who manner as the President. (Section 3)
shall have the same qualifications and term of
office and be elected with and in the same F. Appointment to Cabinet
manner as the President. xxx
The Vice-President may be appointed as a
No Vice-President shall serve for more than two Member of the Cabinet. Such appointment requires
successive terms. Voluntary renunciation of the no confirmation. (Section 3)
office for any length of time shall not be considered
Justice Cruz submits that the Vice-President may
290
Bernas Commentary, p 832 (2003 ed). not receive additional compensation as member of
291 Cabinet because of the absolute prohibition in
292
Section 3 of Article VII.294
Number 2 is extra constitutional and Number 3 is illegal. -asm
293
294

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IV. POWERS OF THE PRESIDENT by the Commission on Appointments or until the next
adjournment of the Congress.
Constitutional Powers of the President A. Definition of Appointment

1. Executive Power
2. Power of Appointment
Definition of Appointment. Appointment is the
3. Power of Control
selection, by the authority vested with the power, of
4. Military Powers
an individual who is to exercise the functions of a
5. Pardoning Power
given office.295
6. Borrowing Power
It is distinguished from designation in that the
7. Diplomatic Power
latter simply means the imposition of additional
8. Budgetary Power
duties, usually by law, on a person already in the
9. Informing Power
public service.
10. Other Powers
It is also different from the commission in that the
a. Call Congress to a Special Session
latter is the written evidence of the appointment.
(art 6, sec 15)
b. Power to approve or veto bills (art 6
B. Nature of Power of Appointment
sec 27)
c. To consent to deputation of 1. Executive in Nature
government personnel by the Commission 2. Non-delegability
on Elections (art 19-C sec 2(4)) 3. Necessity of Discretion
d. To discipline such deputies (art 19-C
sec 2(8)) 1. Executive in Nature
e. Emergency powers by delegation Appointing power is executive in nature.
from Congress (art 6 sec 23(2)) (Government v. Springer) Indeed, the filling up of
f. Tariff Powers by delegation from an office created by law is the implementation or
Congress (art 6 sec 28(2)) execution of law.296
g. General Supervision over local Although, intrinsically executive and therefore
governments and autonomous regional pertaining mainly to the President, the appointing
governments (art 10) power may be exercised by the legislature and by
the judiciary, as well as the Constitutional
V. Power of Appointment Commissions, over their own respective personnel
(See art 6 sec 16 (last sentence), Article VIII etc.)
Definition of Appointment Implication. Since appointment to office is an
Nature of Power of Appointment executive function, the clear implication is that the
Classification of Appointment legislature may not usurp such function.
Kinds of Presidential Appointment The legislature may create an office and prescribe
Scope of Appointing Power the qualifications of the person who may hold the
Appointments needing Confirmation of CA office, but it may neither specify who shall be
Officials Who are to be Appointed by the President appointed to such office nor actually appoint him.297
Steps in the Appointing Process
Appointment of Officers Lower in Rank 2. Non-delegability.
Limitations on the President’s Appointing power Facts: The Minister of Tourism designate petitioner as
Power of Removal general manager of the Philippine Tourism Authority.
When a new Secretary of Tourism was appointed, the
Section 16. The President shall nominate and, with the President designated [him] as a general manager of
consent of the Commission on Appointments, appoint the PTA on the ground that the designation of
the heads of the executive departments, ambassadors, petitioner was invalid since it is not made by the
other public ministers and consuls, or officers of the President as provided for in PD 564. Petitioner claimed
armed forces from the rank of colonel or naval captain, that his removal was without just cause.
and other officers whose appointments are vested in Held: The appointment or designation of petitioner by
him in this Constitution. He shall also appoint all other the Minister of Tourism is invalid. It involves the
officers of the Government whose appointments are exercise of discretion, which cannot be delegated.
not otherwise provided for by law, and those whom he Even if it be assumed that the power could be
may be authorized by law to appoint. The Congress exercised by the Minister of Tourism, it could be
may, by law, vest the appointment of other officers recalled by the President, for the designation was
lower in rank in the President alone, in the courts, or in provisional.298 (Binamira v. Garrucho)
the heads of departments, agencies, commissions, or
boards. 295
The President shall have the power to make Cruz, Philippine Political Law, p. 189 (1995 ed).
appointments during the recess of the Congress, 296
whether voluntary or compulsory, but such 297
appointments shall be effective only until disapproval Bernas Primer at 305 (2006 ed.)
298
Jacinto Jimenez, Political Law Compendium, p.313 (2006 ed.)

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3. Necessity of Discretion 1. Permanent

Discretion is an indispensable part in the exercise 2. Temporary
of power of appointment. Congress may not, 3. Regular
therefore, enact a statute which would deprive the 4. Ad Interim
President of the full use of his discretion in the
nomination and appointment of persons to any 1. Permanent (2003 Bar Question)
public office. Thus it has been held that a statute Permanent appointments are those extended to
unlawfully limits executive discretion in persons possessing eligibility and are thus
appointments when it provides for the drawing of protected by the constitutional guarantee of
lots as a means to determine the districts to which security of tenure. 304
judges of first instance should be assigned by the
Chief Executive.299 Congress may not limit the 2. Temporary (2003 Bar Question)
President’s choice to one because it will be an Temporary appointments are given to persons
encroachment on the Prerogative of the without such eligibility, revocable at will and without
President.300 the necessity of just cause or a valid
investigation305; made on the understanding that
Appointment is essentially a discretionary power the appointing power has not yet decided on a
and must be performed by the officer in which it is permanent appointee and that the temporary
vested according to his best lights, the only appointee may be replaced at any time a
condition being that the appointee, if issued a permanent choice is made.
permanent appointment, should possess the
minimum qualification requirements, including the Not subject to CA confirmation. A temporary
Civil Service eligibility prescribed by law for the appointment and a designation are not subject
position. This discretion also includes the to confirmation by the Commission on
determination of the nature or character of the Appointments. Such confirmation, if given
appointment, i.e., whether the appointment is erroneously, will not make the incumbent a
temporary or permanent.301 permanent appointee. (Valencia v. Peralta)
The power to appoint includes the power to decide 3. Regular

who among various choices is best qualified A regular appointment is one made by the
provided that the person chosen has the President while Congress is in session; takes effect
qualification provided by law.302 Even the next-in- only after confirmation by the Commission on
rank rule of the Civil Service Code cannot be read Appointments, and once approved, continues until
as binding the appointing authority to choose the the end of the term of the appointee.
first in the order of rank when two or more possess
the requisite qualifications.303 4. Ad Interim (1991, 1994 Bar Question)
An ad interim appointment is one made by the
Q: The Revised Administrative Code of 1987 President while Congress is not in session; takes
provides, “All provincial and city prosecutors effect immediately, but ceases to be valid if
and their assistants shall be appointed by the disapproved by the Commission on Appointments
President upon the recommendation of the or upon the next adjournment of Congress. In the
Secretary.” Is the absence of recommendation latter case, the ad interim appointment is deemed
of the Secretary of Justice to the President “by-passed” through inaction.
fatal to the appointment of a prosecutor? The ad interim appointment is intended to prevent
A: Appointment calls for discretion on the part interruptions in vital government services that
of the appointing authority. The power to would otherwise result form prolonged vacancies in
appoint prosecutors is given to the President. government offices.
The Secretary of Justice is under the control of
the President. Hence, the law must be read Ad interim appointment is a permanent
simply as allowing the Secretary of Justice to appointment. It is a permanent
advice the President. (Bermudez v. Secretary, appointment because it takes effect
1999) immediately and can no longer be withdrawn
by the President once the appointee
C. Classification of Appointment (1994 Bar Question) qualified into office. The fact that it is subject
299 to confirmation by the Commission on
Sinco, Philippine Political Law, p 272 (1954ed). Appointments does not alter its permanent
300
Flores v. Drilon, 223 SCRA 568. character. (Matibag v. Benipayo, 2002)
301
Antonio B. Nachura, Outline/Reviewer in Political Law 274
(2006 ed.) 304
302
303 305

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Ad interim appointed, how terminated. a position of great trust and confidence. Congress,
1. Disapproval of the appointment by in the guise of prescribing qualifications to an
the Commission on Appointments; office, cannot impose on the President who her
2. Adjournment by Congress without the alter ego should be.”Acting appointments are a
CA acting on the appointment. way of temporarily filling important offices, but if
There is no dispute that when the abused, they can also be a way of circumventing
Commission on Appointments the need for confirmation by the Commission on
disapproves an ad interim appointment, Appointments.
the appointee can no longer be extended However, we find no abuse in the present case.
a new appointment, inasmuch as the The absence of abuse is apparent from President
approval is a final decision of the Arroyo’s issuance of ad interim appointments to
Commission in the exercise of its respondents immediately upon the recess of
checking power on the appointing Congress, way before the lapse of one year.
authority of the President. Such (Pimentel v. Ermita, 2005)
disapproval is final and binding on both
the appointee and appointing power. D. Kinds of Presidential Appointment
But when an ad interim appointment is by- 1. Appointments made by an Acting President
passed because of lack of time or failure (Section 14)
of the Commission on Appointments to 2. Appointments made by the President within
organize, there is no final decision by the two months before the next presidential
Commission to give or withhold its elections and up to the end of his term.
consent to the appointment. Absent such (Section 15)
decision, the President is free to renew 3. Regular Appointments (Section 16)
the ad interim appointment. (Matibag v. 4. Recess or Ad interim Appointments (Section
Benipayo) 13)
Q: What happens if a special session is called E. Scope of the Power to Appoint

and that session continues until the day before
the start of the regular session? Do Officials to be Appointed by the President
appointments given prior to the start of the
special session lapse upon the end of the
1. Those officials whose appointments are vested
special session or may they continue into the in him by the Constitution. (See Section 16, 1st
regular session? sentence)
A: Guevara v. Inocente again says that there • Heads of executive
must be a “constructive recess” between the departments
sessions and thus appointments not acted • Ambassadors, other public
upon during the special session lapse before ministers and consuls
the start of the regular session.306 • Officers of the armed forces
from rank of colonel or naval captain
Difference between an ad interim appointment • Article VIII, Section 9 provides that
and an appointment in an acting capacity. the President appoints member of the
1. The former refers only to positions which need SC and judges of lower courts
confirmation by the CA while the latter is also • The President also appoints
given to those which do not need confirmation. members of JBC, chairmen and
2. The former may be given only when Congress members of the constitutional
is not in session whereas the latter may be commissions (art 9,B, Sec 1(2); C,
given even when Congress is in session. Section 1(2)), the Ombudsman and
his deputies (art 11, sec 9).
Acting Capacity. The essence of an appointment • Appointment of Sectoral
in an acting capacity is its temporary nature. In Representatives (art 18 sec 7)
case of a vacancy in an office occupied by an alter (Quintos-Deles v. Commission on
ego of the President, such as the Office of Appointments)
Department Secretary, the President must
necessarily appoint the alter ego of her choice as 2. Those whom he may be authorized by law
Acting Secretary before the permanent appointee (Section 16, 2nd sentence)
of her choice could assume office. 3. Any other officers of the government whose
Congress, through law, cannot impose on the appointments are not otherwise provided by
President the obligation to appoint automatically law (Constitution or statutes). (Section 16, 2nd
the undersecretary as her temporary alter ego. “An sentence)
alter ego, whether temporary or permanent, holds
306

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Significance of enumeration in Section 16, 1st The Congress cannot by law require the
sentence. The enumeration means that Congress confirmation of appointments of government
may not give to any other officer the power to officials other than those enumerated in the first
appoint the above enumerated officers.307 sentence of Section 16 of Article VII. (Calderon v.
Carale)
F. Appointments needing the Confirmation of CA
CA Confirmation G. Steps in the Appointing Process (where COA
Exclusive List confirmation is needed)
1. Nomination by the President
1. What appointments need confirmation by the 2. Confirmation of the Commission on Appointments
Commission on Appointments? (1999 Bar Q) 3. Issuance of the Commission
Those enumerated in the 1st sentence of Section
16: Acceptance. An appointment is deemed complete
1. Heads of executive departments only upon its acceptance. Pending such
2. Ambassadors, other public ministers acceptance, the appointment may still be
and consuls withdrawn. (Lacson v. Romero)
3. Officers of the armed forces from Appointment to a public office cannot be forced
rank of colonel or naval captain upon any citizen except for purposes of defense of
4. Those other officers whose the State under Article II Section 4.
appointments are vested in him in the
H. Appointment of Officers Lower in Rank
Constitution. (Sarmiento v. Mison) (Note:
Although the power to appoint Justices,
judges, Ombudsman and his deputies is Section 16 (3rd sentence of first paragraph)
The Congress may, by law, vest the appointment of
vested in the President, such
other officers lower in rank in the President alone, in
appointments do not need confirmation the courts, or in the heads of departments, agencies,
by the Commission on Appointments) commissions, or boards.
Why from rank of colonel. The provision Significance of the phrase “the President
hopefully will have the effect of strengthening alone”. Alone means to the exclusion of the courts,
civilian supremacy over the military308 To some the heads of departments, agencies, commissions
extent, the decision of the Commission was or boards. 310
influenced by the observation that coups are
generally led by colonels.309 Appointing authority may also be given to other
officials. Thus Section 16 says: “The Congress
may, by law, vest the appointment of other officers
Military officers. The clause “officers of the lower in rank in the President alone, in the courts,
armed forces from the rank of colonel or naval or in the heads of departments, agencies,
captain” refers to military officers alone. commissions, or boards.” In Rufino v Endriga311
Hence, promotion and appointment of officers interpreted this to mean that, when the authority is
of Philippine Coast Guard which is under the given to collegial bodies, it is to the chairman that
DOTC (and not under the AFP), do not need the authority is given. But he can appoint only
the confirmation of Commission on officers “lower in rank,” and not officers equal in
Appointments. (Soriano v. Lista, 2003) Also, rank to him. Thus a Chairman may not appoint a
promotion of senior officers of the PNP is not fellow member of a Board.
subject to confirmation of CA. PNP are not
members of the AFP. (Manalo v. Sistoza, I. Limitations on the President’s Appointing Power
1999)
Section 14. Appointments extended by an Acting
Chairman of CHR. The appointment of the
President shall remain effective, unless revoked by the
Chairman of the Commission on Human elected President within ninety days from his
Rights is not provided for in the Constitution or assumption or reassumption of office.
in the law. Thus, there is no necessity for such
appointment to be passed upon by the
Section 15. Two months immediately before the next
Commission on Appointments. (Bautista v.
presidential elections and up to the end of his term, a
Salonga) President or Acting President shall not make
appointments, except temporary appointments to
2. Exclusive list
310
307 Bernas Commentary, p 847 (2003 ed).; The earlier view of Fr.
Bernas Primer at 306 (2006 ed.) Bernas confirmed by Sarmiento v. Mison, was that the retention of
308
Bernas Commentary, p 844 (2003 ed). the phrase “President alone” was an oversight.
309 311
II RECORD 394-395. G.R. No. 139554, July 21, 2006.

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executive positions when continued vacancies therein Section 4(1) and 9 of Article VIII simply
will prejudice public service or endanger public safety. mean that the President is required by law to
fill up vacancies in the courts within the
Special Limitations same time frames provided therein unless
prohibited by Section 15 of Article VII.
1. (Anti-Nepotism Provision) The President While the filing up of vacancies in the
may not appoint his spouse and relatives by
judiciary is undoubtedly in the public
consanguinity or affinity within the fourth civil
interest, there is no showing in this case of
degree as Members of the Constitutional
any compelling reason to justify the making
Commission, as Ombudsman, or as
of the appointments during the period of the
Secretaries, Undersecretaries, chairmen or
ban. (In Re Appointment of Mateo
heads of Bureaus or offices, including
Valenzuela, 1998)
government owned-or-controlled corporations.
(Section 13)
New Doctrine: The prohibition under Article
2. Appointments extended by an acting President VII, Section 15 of the Constitution against
shall remain effective unless revoked by the presidential appointments immediately
elected President within 90 days form his before the next presidential elections and up
assumption of office. (Section 14) to the end of the term of the President does
3. (Midnight Appointments)Two months not apply to vacancies in the Supreme
immediately before the next presidential Court. (De Castro v. JBC, March 17, 2010)
elections and up to the end of his term, a
President or acting President shall not make
appointments except for temporary Other Limitations:
appointments to executive positions when 1. The presidential power of appointment may
continued vacancies therein will prejudice also be limited by Congress through its power
public service or endanger public safety. to prescribe qualifications for public office.
(Section 15) 2. The judiciary may annul an appointment made
4. The President shall have the power to make by the President if the appointee is not
appointments during the recess of the qualified or has not been validly confirmed.313
Congress, whether voluntary or compulsory,
but such appointments shall be effective only J. Power of Removal
until disapproval by the CA or until the next
adjournment of Congress. (Section 16 par. 2) The President possesses the power of removal by
implication from other powers expressly vested in
Provision applies only to presidential him.
appointments. The provision applies only to 1. It is implied from his power to appoint
presidential appointments. There is no law 2. Being executive in nature, it is implied
that prohibits local executive officials from from the constitutional provision vesting
making appointments during the last days of the executive power in the President.
their tenure. (De Rama v. CA) 3. It may be implied from his function to take
care that laws be properly executed; for
Old Doctrine: [Section 15] applies in the without it, his orders for law enforcement
appointments in the Judiciary. Two might not be effectively carried out.
months immediately before the next 4. The power may be implied fro the
presidential elections and up to the end of President’s control over the administrative
his term, a President or Acting President departments, bureaus, and offices of the
shall not make appointments, except government. Without the power to
temporary appointments to executive remove, it would not be always possible
positions when continued vacancies therein for the President to exercise his power of
will prejudice public service or endanger control.314
public safety. Since the exception applies
only to executive positions, the prohibition As a general rule, the power of removal may be
covers appointments to the judiciary.312 implied from the power of appointment.315 However,
During this period [2 months immediately the President cannot remove officials appointed by
before the next presidential elections…], the
President is neither required to make 313
appointments to the courts nor allowed to do 314
Sinco, Philippine Political Law, p 275 (1954ed).; But See Ang-
so.
Angco v. Castillo, “The power of control is not the source of
the Executive’s disciplinary power over the person of his
312
In re: Appointment of Valenzuela, AM 98-0501 SC, November 9, subordinates. Rather, his disciplinary power flows from his
1998. power to appoint.” Bernas Primer at 313 (2006 ed).

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him where the Constitution prescribes certain B. Control v. Supervision

methods for separation of such officers from public
service, e.g., Chairmen and Commissioners of Control is a stronger power than mere
Constitutional Commissions who can be removed supervision.320
only by impeachment, or judges who are subject to
the disciplinary authority of the Supreme Court. In Supervision. Supervision means overseeing or the
the cases where the power of removal is lodged in power or authority of an officer to see that
the President, the same may be exercised only for subordinate officer performs their duties. If the
cause as may be provided by law, and in latter fail or neglect to fulfill them, then the former
accordance with the prescribed administrative may take such action or steps as prescribed by law
procedure. to make them perform these duties.321
Members of the career service. Members of the Bernas Primer: Power of Supervision is the power
career service of the Civil Service who are of a superior officer to “ensure that the laws are
appointed by the President may be directly faithfully executed” by inferiors. The power of
disciplined by him. (Villaluz v. Zaldivar) provided supervision does not include the power of control;
that the same is for cause and in accordance with but the power of control necessarily includes the
the procedure prescribed by law. power of supervision.322
Members of the Cabinet. Members of the Cabinet Control Supervision

and such officers whose continuity in office An officer in control Supervision does not
depends upon the President may be replaced at lays down the rules in cover the authority to
any time. (Legally speaking, their separation is the doing of an act. lay down the rules.
effected not by removal but by expiration of Supervisor or
term.316) (See Alajar v. CA) superintendent merely
sees to it that the rules
VI. Power of Control are followed.
If rules are not If the rules are not
Control
followed, he may, in observed, he may order
Control v. Supervision
his discretion, order the work done or re-
The President and Power of Control
the act undone, re- done but only to
Alter ego Principle; Doctrine of Qualified Political
done by his conform to the
Agency
subordinate or he prescribed rules. He
Supervision over LGUs
may decide to do it may not prescribe his
The Take-Care Clause
himself. own manner for the
doing of the act. He has
Section 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall no judgment on this
ensure that the laws be faithfully executed. matter except to see to
it that the rules are
followed. (Drilon v. Lim)
A. Control
C. The President and Power of Control
Control is the power of an officer to alter or modify Power of Control of the President
or nullify or set aside what a subordinate officer Scope
had done in the performance of his duties and to Section 17 is self-executing
substitute the judgment of the former for that of the Not a Source of Disciplinary Powers
latter.317
1. Power of Control of the President
It includes the authority to order the doing of an act
[Power of Control] has been given to the President
by a subordinate or to undo such act or to assume
over all executive officers from Cabinet members to
a power directly vested in him by law.318 The power
the lowliest clerk. This is an element of the
of control necessarily includes the power of
presidential system where the President is “the
supervision.319
Executive of the government.”323
315
316 320
317
Mondano v. Silvosa 321
Mondano v. Silvosa
318 322
319 323

SCHOOL OF LAW
The power of control vested in the President by the President to reorganize the executive branch,
Constitution makes for a strongly centralized which may include such abolition, is permissible
administrative system. It reinforces further his under present laws.328
position as the executive of the government,
enabling him to comply more effectively with his g. Banda v. Ermita
constitutional duty to enforce laws. The power to G.R. No. 166620
prepare the budget of the government strengthens April 20, 2010
the President’s position as administrative head.324
FACTS:
2. Scope President GMA issued Executive Order No. 378
a. The President shall have control of all the on 2004 amending Section 6 of Executive Order
executive departments, bureaus, and offices. No. 285 by, inter alia, removing the exclusive
(Section 17) jurisdiction of the NPO (National Printing Office)
over the printing services requirements of
b. The President has control over officers of government agencies and instrumentalities.
GOCCs. (NAMARCO v. Arca) (Bernas: It is Pursuant to Executive Order No. 378,
submitted that such power over government- government agencies and instrumentalities are
owned corporation comes not from the allowed to source their printing services from the
Constitution but from statute. Hence, it may also private sector through competitive bidding,
be taken away by statute.) subject to the condition that the services offered
by the private supplier be of superior quality and
c. Control over what? The power of control is lower in cost compared to what was offered by
exercisable by the President over the acts of his the NPO. Executive Order No. 378 also limited
subordinates and not necessarily over the NPO’s appropriation in the General
subordinate himself. (Ang-angco v. Castillo) It Appropriations Act to its income.
can be said that the while the Executive has
control over the “judgment” or “discretion” of his Perceiving Executive Order No. 378 as a threat
subordinates, it is the legislature which has to their security of tenure as employees of the
control over their “person.”325 NPO, petitioners now challenge its
constitutionality, contending that: (1) it is beyond
d. Theoretically, the President has full control of the executive powers of President Arroyo to
all the members of the Cabinet. He may appoint amend or repeal Executive Order No. 285 issued
them as he sees fit, shuffle them at pleasure, by former President Aquino when the latter still
and replace them in his discretion without any exercised legislative powers; and (2) Executive
legal inhibition whatever.326 Order No. 378 violates petitioners’ security of
tenure, because it paves the way for the gradual
e. The President may exercise powers conferred abolition of the NPO.
by law upon Cabinet members or other
subordinate executive officers. (City of Iligan v. ISSUE:
Director of Lands) Even where the law provides Whether EO 378 is constitutional.
that the decision of the Director of Lands on
questions of fact shall be conclusive when HELD:
affirmed by the Sec of DENR, the same may, on YES
appeal to the President, be reviewed and J. Leonardo-de Castro. It is a well-settled
reversed by the Executive Secretary. (Lacson- principle in jurisprudence that the President has
Magallanes v. Pano) the power to reorganize the offices and agencies
in the executive department in line with the
f. It has been held, moreover, that the express President’s constitutionally granted power of
grant of the power of control to the President control over executive offices and by virtue of
justifies an executive action to carry out the previous delegation of the legislative power to
reorganization of an executive office under a reorganize executive offices under existing
broad authority of law.327 A reorganization can statutes.
involve the reduction of personnel, consolidation
of offices, or even abolition of positions by Executive Order No. 292 or the Administrative
reason of economy or redundancy of functions. Code of 1987 gives the President continuing
While the power to abolish an office is generally authority to reorganize and redefine the functions
lodged with the legislature, the authority of the
327
Anak Mindanao v. Executive Sec, G.R. No. 166052 , August 29,
324 2007; Tondo Medical Center Employees v. CA. G.R. No. 167324,
325 July 17, 2007;
Bernas Primer at 313 (2006 ed.) 328
Malaria Employees v. Executive Secretary, G.R. No.
326
Cruz, Philippine Political Law, p. 199 (1995 ed). 160093, July 31, 2007.

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of the Office of the President. Section 31, legislative power to reorganize executive offices
Chapter 10, Title III, Book III of the said Code, is under existing statutes.
explicit: The President, subject to the policy in According to the OSG, the power to create a
the Executive Office and in order to achieve truth commission pursuant to the above provision
simplicity, economy and efficiency, shall finds statutory basis under P.D. 1416, as
have continuing authority to reorganize the amended by P.D. No. 1772. The said law
administrative structure of the Office of the granted the President the continuing authority to
President. reorganize the national government, including
the power to group, consolidate bureaus and
It is undisputed that the NPO, as an agency that agencies, to abolish offices, to transfer functions,
is part of the Office of the Press Secretary (which to create and classify functions, services and
in various times has been an agency directly activities, transfer appropriations, and to
attached to the Office of the Press Secretary or standardize salaries and materials.
as an agency under the Philippine Information
Agency), is part of the Office of the President. Issue: Does the creation of the Philippine Truth
To be very clear, this delegated legislative power Commission fall within the ambit of the power to
to reorganize pertains only to the Office of the reorganize as expressed in Section 31 of the
President and the departments, offices and Revised Administrative Code?
agencies of the executive branch and does not
include the Judiciary, the Legislature or the Held: J. Mendoza. No. Section 31 contemplates
constitutionally-created or mandated bodies. “reorganization”. To say that the Truth
Moreover, it must be stressed that the exercise Commission is borne out of a restructuring of the
by the President of the power to reorganize the Office of the President under Section 31 is a
executive department must be in accordance misplaced supposition, even in the plainest
with the Constitution, relevant laws and meaning attributable to the term “restructure”– an
prevailing jurisprudence. “alteration of an existing structure.” Evidently,
the Truth Commission was not part of the
J. Carpio: RA 9184 mandates the conduct of structure of the Office of the President prior to
competitive bidding in all the procurement the enactment of Executive Order No. 1.
activities of the government including the
acquisition of “items, supplies, materials, and Reorganization "involves the reduction of
general support services x x x which may be personnel, consolidation of offices, or abolition
needed in the transaction of the public thereof by reason of economy or redundancy of
businesses or in the pursuit of any government x functions." It takes place when there is an
x x activity” save for limited transactions. By alteration of the existing structure of government
opening government’s procurement of standard offices or units therein, including the lines of
and accountable forms to competitive bidding control, authority and responsibility between
(except for documents crucial to the conduct of them.
clean elections which has to be printed solely by
government), EO 378 merely implements RA Issue: Is there a valid delegation of power
9184’s principle of promoting “competitiveness from Congress thru PD 1416, empowering
by extending equal opportunity to enable private the President to create a public office?
contracting parties who are eligible and qualified
to participate in public bidding. Held: NO. No. P.D. 1416 is already stale,
anachronistic and inoperable. P.D. No. 1416 was
h. Biraogo v. PTC a delegation to then President Marcos of the
authority to reorganize the administrative
Facts: President Noynoy Aquino on July 30, structure of the national government including
2010, signed Executive Order No. 1 establishing the power to create offices and transfer
the Philippine Truth Commission of 2010 (Truth appropriations pursuant to one of the purposes
Commission).The said Truth is dedicated solely of the decree, embodied in its last “Whereas”
to investigating and finding out the truth clause:
concerning the reported cases of graft and “WHEREAS, the transition towards the
corruption during the previous administration. parliamentary form of government will
necessitate flexibility in the organization
The Respondents through OSG cites the recent of the national government. “
case of Banda v. Ermita, where it was held that Clearly, as it was only for the purpose of
the President has the power to reorganize the providing manageability and resiliency during the
offices and agencies in the executive department interim, P.D. No. 1416, as amended by P.D. No.
in line with his constitutionally granted power of 1772, became functus oficio upon the
control and by virtue of a valid delegation of the convening of the First Congress, as expressly

SCHOOL OF LAW
provided in Section 6, Article XVIII of the 1987 Executive presumptively, the acts of the Chief
Constitution. Executive” (Villena v. Sec. of Interior)
Put simply, when a department secretary makes a

(Note: While it was recognized in this case of decision in the course of performing his or her
Biraogo v. PTC that the power to conduct official duties, the decision, whether honorable or
investigations is inherent in the power to disgraceful, is presumptively the decision of the
faithfully execute laws, E.O. 1 by Pres. President, unless he quickly and clearly disowns
it.331
Noynoy Aquino creating the Truth
Commission is held unconstitutional for 2. When Doctrine not Applicable
being violative of the equal protection Qualified political agency does NOT apply if the
clause of the Constitution.) President is required to act in person by law or by
the Constitution. Example: The power to grant
pardons must be exercised personally by the
3. Section 17 is a self-executing provision President.
The President derives power of control directly
from the Constitution and not from any 3. Reason for the Doctrine
implementing legislation. Such a law is in fact Since the executive is a busy man, he is not
unnecessary and will even be invalid if it limits the expected to exercise the totality of his power of
exercise of his power or withdraws it altogether control all the time. He is not expected to exercise
from the President.329 all his powers in person. He is expected to
delegate some of them to men of his confidence,
4. Power of Control is not the source of the particularly to members of his Cabinet. Thus, out of
Executive’s disciplinary power this practical necessity has risen what has come
The power of control is not the source of the to be referred to as “doctrine of qualified political
Executive’s disciplinary power over the person of agency.”332
his subordinates. Rather, his disciplinary power
flows from his power to appoint. (Ang-Angco v. 4. Power of Control exercised by Department
Castillo)330 Heads in the President’s Behalf
The President’s power of control means his power
D. Alter Ego Principle; Doctrine of Qualified Political to reverse the judgment of an inferior officer. It
Agency may also be exercised in his behalf by Department
Doctrine Heads. Thus the Secretary of Justice may reverse
When Doctrine not Applicable the judgment of a prosecutor and direct him to
Reason for the Doctrine withdraw an information already filed. Such action
Power of Control exercised by Department Heads is not directly reviewable by a court. One who
Power of Control exercised by ES disagrees, however, may should appeal to the
Abakada Case Office of the President in order to exhaust
administrative remedies prior to bring it to court.333
1. Doctrine
The doctrine recognizes the establishment of a 5. Power of Control exercised by the ES
single executive. The doctrine postulates that, “All The Executive Secretary when acting “by authority
executive and administrative organizations are of the President” may reverse the decision of
adjuncts of the Executive Department, the heads of another department secretary. (Lacson-Magallanes
the various executive departments are assistants v. Pano) 334
and agents of the Chief Executive, and, (except in
cases where the Chief Executive is required by the 6. Abakada Case
Constitution or law to act in person or the Petitioners argue that the EVAT law is
exigencies of the situation demand that he act unconstitutional, as it constitutes abandonment by
personally,) the multifarious executive and Congress of its exclusive authority to fix the rate of
administrative functions of the Chief Executive are
performed by and through the executive 331
Fr. Bernas in his Inquirer column, “A Golden Opportunity for
departments, and the acts of the secretaries of GMA”.
such departments, performed and promulgated http://opinion.inquirer.net/inquireropinion/columns/view_article.php
in the regular course of business, are, unless ?article_id=107245
disapproved or reprobated by the Chief 332
333
Orosa v. Roa, GR 14047, July 14, 2006; DENR v. DENR
Employees, G.R. No. 149724. August 19, 2003
329
See the case of Neri v. Senate Committee on the authority of ES
330
Bernas Primer at 313 (2006 ed.) to invoke Executive Immunity. -asm

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taxes and nullififed the President’s power of control

by mandating the fixing of the tax rate by the J. Perlata: Power of control cannot be the basis of
President upon the recommendation of the creating the Truth Commission.
Secretary of Finance. The SC ruled that the
Secretary of Finance can act as agent of the J. Bersamin: I cannot also bring myself to accept
Legislative Department to determine and declare the notion that the creation of the Truth
the event upon which its expressed will is to take Commission is traceable to the President’s power
effect. His personality in such instance is in reality of control over the Executive Department.
but a projection of that of Congress. Thus, being
the agent of Congress and not of the President, the (In the case of Biraogo v. PTC, the Supreme Court,
President cannot alter or modify or nullify, or set while it recognized that the power to conduct
aside the findings of the Secretary of Finance and investigations is inherent in the power to
to substitute the judgment of the former to the faithfully execute laws, held that E.O. 1 by
latter.335 (Abakada Guro v. ES, 2005) Pres. Noynoy Aquino creating the Truth
7. Truth Commission Case
Commission unconstitutional for being
violative of the equal protection clause of
Facts: President Noynoy Aquino on July 30, 2010,
signed Executive Order No. 1 establishing the the Constitution.)
Philippine Truth Commission of 2010 (Truth
E. Power of Supervision over LGUs
Commission).The said Truth is dedicated solely
to investigating and finding out the truth
The power of the President over local governments
concerning the reported cases of graft and is only one of general supervision.336 (See Article X,
corruption during the previous Sections 4 and 16)
administration.
The President can only interfere in the affairs and
Issue: Is the creation of the Truth Commission activities of a local government unit if he finds that
under the ambit of the President’s power of the latter had acted contrary to law. (Judge Dadole
control? v. COA)
Held: NO A law (RA 7160 Sec 187) which authorizes the

J. Mendoza: NO. The creation of the Truth Secretary of Justice to review the constitutionality
Commission is not justified by the President’s of legality of a tax ordinance—and if warranted, to
power of control. Control is essentially the power to revoke it on either or both grounds—is valid, and
alter or modify or nullify or set aside what a does not confer the power of control over local
subordinate officer had done in the performance of government units in the Secretary of Justice, as
his duties and to substitute the judgment of the even if the latter can set aside a tax ordinance, he
former with that of the latter. Clearly, the power of cannot substitute his own judgment for that of the
control is entirely different from the power to local government unit. (Drilon v. Lim)
create public offices. The former is inherent in the
Executive, while the latter finds basis from either a F. Faithful Execution Clause; Take Care Clause
valid delegation from Congress, or his inherent
duty to faithfully execute the laws. The power to take care that the laws be faithfully
executed makes the President a dominant figure in
J. Carpio: The President’s power to create ad hoc the administration of the government.337
fact-finding bodies does not emanate from the
President’s power of control over the Executive The President shall ensure that the laws be
branch. The President’s power of control is the faithfully executed. (Section 17 2nd sentence) The
power to reverse, revise or modify the decisions of law he is supposed to enforce includes the
subordinate executive officials, or substitute his Constitution, statutes, judicial decisions,
own decision for that of his subordinate, or even administrative rules and regulations and municipal
make the decision himself without waiting for the ordinances, as well as treaties entered into by
action of his subordinate.15 This power of control government.338
does not involve the power to create a public office.
Neither does the President’s power to find facts or This power of the President is not limited to the
his broader power to execute the laws give the enforcement of acts of Congress according to their
President the power to create a public office. The express terms. The President’s power includes “the
President can exercise the power to find facts or to
execute the laws without creating a public office. 336
337
335
San Beda College of Law, 2008 Centralized Bar Operations, Cruz, Philippine Political Law, p. 203 (1995 ed).
338
Political Law Reviewer, p. 29. Cruz, Philippine Political Law, p. 203 (1995 ed).

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rights and obligations growing out of the Camposano, the authority of the President to issue
Constitution itself, international relations, and all Administrative Order No. 298, creating an
the protection implied by the nature of the investigative committee to look into the
government under the Constitution.339 administrative charges filed against the employees
of the Department of Health for the anomalous
The reverse side of the power to execute the law is purchase of medicines was upheld.
the duty to carry it out. The President cannot refuse
to carry out a law for the simple reason that in his It should be stressed that the purpose of allowing
judgment it will not be beneficial to the people.340 ad hoc investigating bodies to exist is to allow an
As the Supreme Court pointed out, “after all we still inquiry into matters which the President is entitled
live under a rule of law.” to know so that he can be properly advised and
guided in the performance of his duties relative to
It has been suggested that the President is not the execution and enforcement of the laws of the
under obligation to enforce a law which in his belief land.
is unconstitutional because it would create no
rights and confer no duties being totally null and The President’s power to conduct investigations to
void. The better view is that it is not for him to ensure that laws are faithfully executed is well
determine the validity of a law since this is a recognized. It flows from the faithful-execution
question exclusively addressed to the judiciary. clause of the Constitution under Article VII, Section
Hence, until and unless a law is declared 17 thereof. As the Chief Executive, the president
unconstitutional, the President has a duty to represents the government as a whole and sees to
execute it regardless of his doubts on its validity. A it that all laws are enforced by the officials and
contrary opinion would allow him not only to negate employees of his department. He has the authority
the will of legislature but also to encroach upon the to directly assume the functions of the executive
prerogatives of the judiciary.341 department.
Can the President create an adhoc investigative J. Brion : Under his broad powers to execute the
body under the faithful execution clause? laws, the President can undoubtedly create ad hoc
bodies for purposes of investigating reported
Yes. (Majority of the Justices in Biraogo v. PTC crimes.
answers this question in the affirmative: JJ.
Velasco, Villarama, Del Castillo concurring with the
ponente-Mendoza; Brion, Peralta, Nachura and J. Peralta: The President has the power to create
Carpio. CJ Corona and J de Castro seem to ad hoc committees to investigate or inquire into
answer the question in the affirmative as well.) matters for the guidance of the President to ensure
that the laws be faithfully executed
J. Mendoza (Ponente)
The allocation of power in the three principal J. Nachura: I agree that the President can
branches of government is a grant of all powers create an ad hoc investigative body.
inherent in them. The President’s power to conduct
investigations to aid him in ensuring the faithful J. Carpio:
execution of laws – in this case, fundamental laws The creation of ad hoc fact-finding bodies is a
on public accountability and transparency – is routine occurrence in the Executive and even in the
inherent in the President’s powers as the Chief Judicial branches of government. Whenever there
Executive. That the authority of the President to is a complaint against a government official or
conduct investigations and to create bodies to employee, the Department Secretary, head of
execute this power is not explicitly mentioned in the agency or head of a local government unit usually
Constitution or in statutes does not mean that he is creates a fact-finding body whose members are
bereft of such authority. incumbent officials in the same department, agency
or local government unit. This is also true in the
One of the recognized powers of the President Judiciary, where this Court routinely appoints a
granted pursuant to this constitutionally-mandated fact-finding investigator, drawn from incumbent
duty is the power to create ad hoc committees. Judges or Justices (or even retired Judges or
This flows from the obvious need to ascertain facts Justices who are appointed consultants in the
and determine if laws have been faithfully Office of the Court Administrator), to investigate
executed. Thus, in Department of Health v. complaints against incumbent officials or
employees in the Judiciary.
339
In Re Neagle, 135 US 1 (1890). Bernas Commentary, p 863
(2003 ed).
The creation of such ad hoc investigating bodies,
340 as well as the appointment of ad hoc investigators,
Bernas Commentary, p 863 (2003 ed)
341 does not result in the creation of a public office. In

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creating ad hoc investigatory bodies or appointing Commander-in-Chief Clause/ Calling Out Power
ad hoc investigators, executive and judicial officials Suspension of the Privilege
do not create public offices but merely exercise a Martial Law
power inherent in their primary constitutional or
statutory functions, which may be to execute the Section 18. The President shall be the Commander-in-
law, to exercise disciplinary authority, or both. Chief of all armed forces of the Philippines and
These fact-finding bodies and investigators are not whenever it becomes necessary, he may call out such
permanent bodies or functionaries, unlike public armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion,
offices or their occupants. There is no separate
when the public safety requires it, he may, for a period
compensation, other than per diems or allowances, not exceeding sixty days, suspend the privilege of the
for those designated as members of ad hoc writ of habeas corpus or place the Philippines or any
investigating bodies or as ad hoc investigators. part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension
C.J. Corona: of the privilege of the writ of habeas corpus, the
Indeed, the power of control and supervision of the President shall submit a report in person or in writing to
the Congress. The Congress, voting jointly, by a vote
President includes the power to discipline which in
of at least a majority of all its Members in regular or
turn implies the power to investigate. No Congress special session, may revoke such proclamation or
or Court can derogate from that power but the suspension, which revocation shall not be set aside by
Constitution itself may set certain limits. And the the President. Upon the initiative of the President, the
Constitution has in fact carved out the preliminary Congress may, in the same manner, extend such
investigatory aspect of the control power and proclamation or suspension for a period to be
allocated the same to the following: determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-
(a) To Congress over presidential appointees
four hours following such proclamation or suspension,
who are impeachable officers (Article XI, convene in accordance with its rules without need of a
Sections 2 and 3); call.
(b) To the Supreme Court over members of The Supreme Court may review, in an appropriate
the courts and the personnel thereof (Article proceeding filed by any citizen, the sufficiency of the
VIII, Section 6); and factual basis of the proclamation of martial law or the
(c) To the Ombudsman over any other public suspension of the privilege of the writ or the extension
official, employee, office or agency (Article thereof, and must promulgate its decision thereon
within thirty days from its filing.
XI, Section 13 (1)).
A state of martial law does not suspend the operation
of the Constitution, nor supplant the functioning of the
However, even as the Constitution has granted to civil courts or legislative assemblies, nor authorize the
the Ombudsman the power to investigate other conferment of jurisdiction on military courts and
public officials and employees, such power is not agencies over where civil courts are able to function,
absolute and exclusive. Congress has the power nor automatically suspend the privilege of the writ.
to further define the powers of the Ombudsman The suspension of the privilege of the writ shall apply
and, impliedly, to authorize other offices to conduct only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
such investigation over their respective officials and
During the suspension of the privilege of the writ, any
personnel. person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be
The Constitution has vested in Congress alone the released.
power to grant to any office concurrent jurisdiction
with the Ombudsman to conduct preliminary A. The Military Power (1987 Bar Question)
investigation of cases of graft and corruption.
Section 18 bolsters the principle announced in
NOTE: In this case of Biraogo v. PTC, the Article II, Section 3 that “civilian authority is at all
Supreme Court, while it recognized that the times, supreme over the military.” By making the
power to conduct investigations is inherent in President the commander-in-chief of all the armed
the power to faithfully execute laws, held that forces, the Constitution lessens the danger of a
E.O. 1 by Pres. Noynoy Aquino creating military take-over of the government in violation of
the Truth Commission unconstitutional for its republican nature.342
being violative of the equal protection
clause of the Constitution. 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
VII. Military Power/Emergency Powers power, the power to suspend the privilege of the
The Military Power
Limitations on Military Power 342

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writ of habeas corpus, and the power to declare courts and agencies are not conferred jurisdiction
martial law. (Sanlakas v. Executive Secretary) over civilians where the civil courts are functioning.
9. The suspension of the privilege of the writ of
The power of the sword makes the President the habeas corpus shall apply only to persons facing
most important figure in the country in times of war charges of rebellion or offenses inherent in or
or other similar emergency.343 It is because the directly connected with invasion.
sword must be wielded with courage and resolution
that the President is given vast powers in the 10. Any person arrested for such offenses must be
making and carrying out of military decisions.344 judicially charged therewith within three days.
Otherwise shall be released.
The military power enables the President to:
1. Command all the armed forces of the C. Commander-in-Chief Clause; Calling Out Power
Philippines; Power over the military
Civilian Supremacy
2. Suspend the privilege of the writ of Calling-out Power
habeas corpus
3. Declare martial law
The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it
B. Limitations on Military Power345 (1987, 2000 Bar becomes necessary, he may call out such armed forces
Question) to prevent or suppress lawless violence, invasion or
1. He may call out the armed forces to prevent or rebellion. (Section 18, 1st sentence)
suppress lawless violence, invasion or rebellion
only. 1. Power over the Military.
2. The grounds for the suspension of the The President has absolute authority over all
members of the armed forces. (Gudani v. Senga,
privilege of the writ of habeas corpus and the
2006) He has control and direction over them. As
proclamation of martial law are now limited only to
Commander-in-chief, he is authorized to direct the
invasion or rebellion.
movements of the naval and the military forces
3. The duration of such suspension or placed by law at his command, and to employ them
proclamation shall not exceed sixty days, following in manner he may deem most effectual to harass
which it shall be automatically lifted. and conquer and subdue the enemy.346
4. Within forty-eight hours after such suspension
or proclamation, the President shall personally or in Since the President is commander-in-chief of the
writing report his action to the Congress. If not in Armed Forces she can demand obedience from
session, Congress must convene within 24 hours. military officers. Military officers who disobey or
5. The Congress may then, by majority votes of ignore her command can be subjected to court
martial proceeding. Thus, for instance, the
all its members voting jointly, revoke his action.
President as Commander in Chief may prevent a
The revocation may not set aside by the President.
member of the armed forces from testifying before
6. By the same vote and in the same manner, the
a legislative inquiry. A military officer who disobeys
Congress may, upon initiative of the President,
the President’s directive may be made to answer
extend his suspension or proclamation for a period
before a court martial. Since, however, Congress
to be determined by the Congress if the invasion or
has the power to conduct legislative hearings,
rebellion shall continue and the public safety
Congress may make use of remedies under the
requires extension.
law to compel attendance. Any military official
7. The action of the President and the Congress whom Congress summons to testify before it may
shall be subject to review by the Supreme Court be compelled to do so by the President. If the
which shall have the authority to determine the President is not so inclined, the President may be
sufficiency of the factual basis of such action. This commanded by judicial order to compel the
matter is no longer considered a political question attendance of the military officer. Final judicial
and may be raised in an appropriate proceeding by orders have the force of the law of the land which
any citizen. Moreover, the Supreme Court must the President has the duty to faithfully execute.347
decide the challenge within thirty days from the
time it is filed. 2. Civilian Supremacy (Bernasian view)
8. Martial law does not automatically suspend the Is the President a member of the armed
privilege of the writ of habeas corpus or the forces?
operation of the Constitution. The civil courts and Dichotomy of views:
the legislative bodies shall remain open. Military Sinco: The President is not only a civil official.
343
As commander-in-chief of all armed forces, the
344 346
Cruz, Philippine Political Law, p. 205 (1995 ed). Bernas Commentary, p 866 (2003 ed) citing Fleming v. Page.
345 347
Cruz, Philippine Political Law, p. 213 (1995 ed). Gudani v. Senga, G.R. No. 170165, April 15. 2006.

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President is also a military officer. This dual role emphasis on the duty of the President to execute
given by the Constitution to the President is already existing laws without extending a
intended to insure that the civilian controls the corresponding mandate to proceed extra-
military.348 constitutionally or extra-legally. Indeed, the “calling
Bernas: The weight of authority favors the out” power does not authorize the President or the
position that the President is not a member of the members of the Armed Forces to break the law.
armed forces but remains a civilian.
The President’s duties as Commander-in-Chief c. Declaration of State of Rebellion. Declaration
represent only a part of the organic duties of the state of rebellion is within the calling-out
imposed upon him. All his other functions are power of the President. When the President
clearly civil in nature. declares a state of emergency or a state of
• He is elected as the highest civilian officer rebellion her action is merely a description of the
• His compensation is received for his situation as she sees it but it does not give her new
services rendered as President of the powers. The declaration cannot diminish or violate
nation, not for the individual part of his constitutionally protected rights. (Sanlakas v.
duties; no portion of its is paid from sums Executive Secretary, G.R. No. 159085, February
appropriated for the military or naval forces. 3, 2004.)
• He is not subject to court martial or other
military discipline d. Declaration of a “state of national
• The Constitution does not require that the emergency”. The President can validly declare a
President must be possessed of military state of national emergency even in the absence of
training and talents. congressional enactment. (David v. Ermita) (2006
This position in fact, is the only one compatible Bar Question)
with Article II, Section 3, which says” “Civilian
authority is at all times, supreme over the PP 1017 case
Facts: On February 24, 2006, President Arroyo
military.” The net effect thus of Article II, Section3
issued Presidential Proclamation 1017 declaring a
when read with Article VII, Section 18 is that a state of national emergency. The Solicitor General
civilian President holds supreme military enumerated the following events that lead to the
authority and is the ceremonial, legal, and issuance of PP1017:
administrative head of the armed forces.349 1. Escape of Magdalo group and their
audacious threat of the Magdalo D-day
3. Calling Out Power under Section 18 (2006 Bar 2. The defecations in the Military, particularly in
Question) the Phil. Marines
Most Benign power of Section 18 3. Reproving statements of the communist
Use of Calling Out Power Vests No Constitutional leaders
or Statutory Powers 4. Minutes of the Intelligence Report and
Security Group of the Philippine Army
Declaration of State of Rebellion
showing the growing alliance between the
Declaration of State of National Emergency NPA and the military.
Calling out Power and Judicial Review Did PGMA gravely abuse her discretion in
calling out the AFP?
a. Most Benign power of Section 18. The NO. Section 18 grants the President the calling
diminution of any constitutional rights through the out power. The only criterion for the exercise is
suspension of the privilege of the writ or the that “whenever it becomes necessary”, the
declaration of martial law is deemed as “strong President may call the armed forces “to prevent or
suppress lawless violence, invasion or rebellion”
medicine” to be used sparingly and only as a last
These conditions are present in this case.
resort, and for as long as only truly necessary. Considering the circumstances then prevailing
Thus, the invocation of the “calling out” power PGMA found it necessary to issue PP1017. Owing
stands as a balanced means of enabling a to her Office’s vast intelligence network, she is in
heightened alertness in dealing with the armed the best position to determine the actual condition
threat, but without having to suspend any in her country. PP1017 is constitutional insofar
constitutional or statutory rights or cause the as it constitutes a call by PGMA on the AFP to
creation of any new obligations. prevent or suppress lawless violence.
b. Vests no new constitutional or statutory e. President’s action in calling out the armed
powers. For the utilization of the “calling out” forces, and judicial review. It may be gathered
power alone cannot vest unto the President any from the broad grant of power that the actual use to
new constitutional or statutory powers, such as the which the President puts the armed forces, is
enactment of new laws. At most, it can only renew unlike the suspension of the privilege of writ of
habeas corpus, not subject to judicial review.350
348
349 350
Bernas Commentary, p 865 (2003 ed). Bernas Commentary, p 866 (2003 ed)

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But, wait! While the Court considered the The writ. The writ of habeas corpus is a writ
President’s “calling-out” power as a discretionary directed to the person detaining another,
power solely vested in his wisdom and that it commanding him to produce the body of the
cannot be called upon to overrule the President’s prisoner at a designated time and place, with the
wisdom or substitute its own, it stressed that “this day and cause of his caption and detention, to do,
does not prevent an examination of whether such to submit to, and receive whatever the court or
power was exercised within permissible judge awarding the writ shall consider in his behalf.
constitutional limits or whether it was exercised in a (Bouvier’s Law Dictionary) (Hence, an essential
manner constituting grave abuse of discretion. (IBP requisite for the availability of the writ is actual
v. Zamora) Judicial inquiry can go no further than deprivation of personal liberty) (Simply put, a writ
to satisfy the Court not that the President’s decision of habeas corpus is a writ of liberty)
is correct, but that “the President did not act
arbitrarily.” Thus, the standard is not correctness, Purpose. The great object of which is the liberation
but arbitrariness. It is incumbent upon the petitioner of those who may be in prison without sufficient
to show that the President’s decision is totally cause.351
bereft of factual basis” and that if he fails, by way of
proof, to support his assertion, then “this Court To what Habeas Corpus extends. Except as
cannot undertake an independent investigation otherwise provided by law, the writ of habeas
beyond the pleadings. (IBP v. Zamora cited in corpus shall extend to all cases of illegal
David v. Arroyo) confinement or detention by which any person is
deprived of his liberty, or by which the rightful
f. QUESTION: custody of any person is withheld from the person
What is the extent of the President’s power to entitled thereto. (Rule 102, Section 1 or Rules of
conduct peace negotiations? COurtt)
ANSWER: 2. Privilege of the writ of HC

Main Opinion, J. Carpio-Morales: The
President’s power to conduct peace negotiations is Privilege. It is the right to have an immediate
implicitly included in her powers as Chief Executive determination of the legality of the deprivation of
and Commander-in-Chief. The President – in the physical liberty.
course of conducting peace negotiations – may
validly consider implementing even those policies 3. Suspension of the privilege.
that require changes to the Constitution, but she
may not unilaterally implement them without the In case of invasion or rebellion, when the public
intervention of Congress, or act in any way as if safety requires it, [the President] may, for a period
the assent of that body were assumed as a not exceeding sixty days, suspend the privilege of
certainty. the writ of habeas corpus.
Given the limited nature of the President’s authority
to propose constitutional amendments, she cannot Suspension of the Privilege, Meaning.
guarantee to any third party that the required Suspension of the privilege does not suspend the
amendments will eventually be put in place, nor writ itself, but only it’s privilege. This means that
even be submitted to a plebiscite. (Province of when the court receives an application for the writ,
North Cotabato v. GRP) and it finds the petition in proper form, it will issue
the writ as a matter of course, i.e., the court will
issue an order commanding the production before
D. Suspension of the Privilege the court of the person allegedly detained, at a time
Writ of Habeas Corpus and place stated in the order, and requiring the true
Privilege of the Writ of Habeas Corpus cause of his detention to be shown to the court. If
Suspension of the Privilege, Meaning the return to the writ shows that the person in
General Limitations on the power to Suspend custody was apprehended and detained in areas
To whom Applicable where the privilege of the writ has been suspended
Effect on Applicable Persons or for crimes mentioned in the executive
Grounds proclamation, the court will suspend further
Duration proceedings in the action.352 (1997 Bar Question)
Four Ways to Lift the Suspension
Duty of the President Facts: Claiming they were illegally arrested without
Role of Congress any warrant of arrest, petitioners sued several
Role of the Supreme Court officers of the AFP for damages. The officers of the
AFP argued that the action was barred since the
1. Writ of HC 351
Moran, Rules of Court, Vol. II, 499.
352

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suspension of the privilege of the writ of habeas a. Congress convenes

corpus precluded judicial inquiry into the legality of b. Congress may either revoke or (with President’s
their detention. initiative) extend
Held: The contention of AFP officers has not merit.
The suspension of the privilege of the writ of habeas
corpus does not render valid an otherwise illegal Congress convenes. The Congress, if not in
arrest or detention. What is suspended is merely session, shall, within twenty-four hours following
the right of individual to seek release from such proclamation or suspension, convene in
detention through the writ of habeas corpus.353 accordance with its rules without need of a call.
(Aberca v. Ver, 160 SCRA 590)
Congress may revoke. The Congress, voting
4. General Limitations on the power to suspend jointly, by a vote of at least a majority of all its
the privilege Members in regular or special session, may revoke
1. Time limit of 60 days such proclamation or suspension, which revocation
2. Review and possible revocation by Congress shall not be set aside by the President.
3. Review and possible nullification by SC354
5. To whom Applicable Congress may extend. Upon the initiative of the

President, the Congress may, in the same manner,
The suspension of the privilege of the writ shall extend such proclamation or suspension for a
apply only to persons judicially charged for period to be determined by the Congress, if the
rebellion or offenses inherent in or directly invasion or rebellion shall persist and public safety
connected with invasion. requires it.
6. Effect on Applicable Persons 12. Role of Supreme Court
During the suspension of the privilege of the writ, The Supreme Court may review, in an appropriate
any person thus arrested or detained shall be proceeding filed by any citizen, the sufficiency of
judicially charged within three days, otherwise he the factual basis of the proclamation of martial law
shall be released. (Article VI Section 18) or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its
The suspension of the privilege of the writ does not decision thereon within thirty days from its filing.
impair the right to bail. (Article III Section 13)
E. Martial Law
7. (Grounds) Factual Bases for Suspending the Martial Law, Definition (Under the 1987 Constitution)
Privilege (1997 Bar Question) Martial Law, Nature
Proclamation of Martial Law
1. In case of invasion or rebellion
General Limits on the Power to Proclaim…
2. When the public safety requires it
Effects of Proclamation of Martial Law
Grounds
8. Duration.
Duration
Four Ways to Lift the Suspension
Not to exceed sixty days, following which it shall be Duty of the President
lifted, unless extended by Congress. Role of Congress
Role of the Supreme Court (Open Court Doctrine)
9. Four Ways to Lift the Suspension
1. Lifting by the President himself 1. Martial Law, Definition.
2. Revocation by Congress
3. Nullification by the Supreme Court Martial law in its strict sense refers to that law
4. By operation of law after 60 days which has application when civil authority calls
upon the military arm to aid it in its civil function.
10. Duty of the President Military arm does not supersede civil authority.
Within forty-eight hours from the proclamation of Martial law in the Philippines is imposed by the
martial law or the suspension of the privilege of the Executive as specifically authorized and within the
writ of habeas corpus, the President shall submit a limits set by the Constitution.355
report in person or in writing to the Congress.
2. Martial Law, Nature
11. Role of Congress
a. Essentially police power
b. Scope of Martial Law: Flexible Concept
353
Jacinto Jimenez, Political Law Compendium, 322 (2006 ed.)
354 355

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3. Authorize the conferment of jurisdiction on

Martial law is essentially police power. This is military courts and agencies over where civil
borne out of the constitutional text which sets down courts are able to function
“public safety” as the object of the exercise of 4. Automatically suspend the privilege of the writ.
martial law. Public safety is the concern of police (Section 18)
power.
Open Court Doctrine. Civilians cannot be
What is peculiar, however, about martial law as tried by military courts if the civil courts are
police power is that, whereas police power is open and functioning. (Olaguer v. Military
normally a function of the legislature executed by Commission)
the civilian executive arm, under martial law, police
power is exercised by the executive with the aid of The President can: (This is based on UP and Beda
the military. 2008 Bar Reviewers; But see excerpt from Bernas
Commentary)
Martial law is a flexible concept. Martial law 1. Legislate
depends on two factual bases: (1) the existence of 2. Order the arrest of people who obstruct the
invasion or rebellion; and (2) the requirements of war effort.
public safety.
Necessity creates the conditions for martial law Bernas Commentary: The statement that martial law does
and at the same time limits the scope of martial not “supplant the functioning of …legislative assemblies”
means that ordinary legislation continues to belong to the
law. Certainly, the necessities created by a state of
legislative bodies even during martial law. Does this
invasion would be different from those created by mean that the martial law administrator is without
rebellion. Necessarily, therefore the degree and power to legislate?
kind of vigorous executive action needed to meet A: In actual theater of war, the martial law administrator’s
the varying kinds and degrees of emergency could word is law, within the limits of the Bill of Rights. But
not be identical under all conditions. (The common outside the theater of war, the operative law is ordinary
denominator of all exercise by an executive officer law.
of the discretion and judgment normally exercised
by a legislative or judicial body.) 6. Grounds; Factual Bases for the Proclamation
1. In case of invasion or rebellion
3. Proclamation of Martial Law 2. When the public safety requires it
In case of invasion or rebellion, when the public 7. Duration

safety requires it, [the President] may, for a period
not exceeding sixty days, suspend the privilege of Not to exceed sixty days, following which it shall be
the writ of habeas corpus or place the Philippines lifted, unless extended by Congress.
or any part thereof under martial law.
8. Four Ways to Lift the Proclamation
Q: Is PP 1017 actually a declaration of Martial 1. Lifting by the President himself
law? 2. Revocation by Congress
A: No. It is merely an exercise of PGMA’s 3. Nullification by the Supreme Court
calling-out power for the armed forces to assist 4. By operation of law after 60 days
her in preventing or suppressing lawless
violence. It cannot be used to justify act that 9. Duty of the President
only under a valid of declaration of Martial Law
can be done. (David v. [Ermita]) Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the
4. General Limitations on the power to proclaim writ of habeas corpus, the President shall submit a
1. Time limit of 60 days report in person or in writing to the Congress.
2. Review and possible revocation by Congress
3. Review and possible nullification by SC356 10. Role of Congress
a. Congress convenes
5. Effects of Proclamation of Martial Law b. Congress may either revoke or (with President’s
initiative) extend
A State of martial law does not:
1. Suspend the operation of the Constitution Congress convenes. The Congress, if not in
2. Supplant the functioning of the civil courts or session, shall, within twenty-four hours following
legislative assemblies such proclamation or suspension, convene in
accordance with its rules without need of a call.
356

SCHOOL OF LAW
Congress may revoke. The Congress, voting

jointly, by a vote of at least a majority of all its Purpose. That Section 19 gives to the President
Members in regular or special session, may revoke the power of executive clemency is a tacit
such proclamation or suspension, which revocation admission that human institutions are imperfect
shall not be set aside by the President. and that there are infirmities in the administration of
justice. The power therefore exists as an
Congress may extend. Upon the initiative of the instrument for correcting these infirmities and for
President, the Congress may, in the same manner, mitigating whatever harshness might be
extend such proclamation or suspension for a generated by a too strict application of the law. 360 In
period to be determined by the Congress, if the recent years, it has also been used as a bargaining
invasion or rebellion shall persist and public safety chip in efforts to unify various political forces.
requires it.
C. Forms of Executive Clemency (1988 Bar Question)
11. Role of Supreme Court (2006 Bar Question)
1. Reprieves- a postponement of a sentence to
a date certain, or a stay in the execution.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of 2. Commutations- reduction or mitigation of the
the factual basis of the proclamation of martial law penalty.
or the suspension of the privilege of the writ or the 3. Pardons- act of grace which exempts the
extension thereof, and must promulgate its individual on whom it is bestowed form the
decision thereon within thirty days from its filing. punishment which the law inflicts for the crime he
has committed.
VIII. Power of Executive Clemency 4. Remission of fines
5. Forfeitures
Power of Executive Clemency
Purpose for the Grant of Power 6. Amnesty- commonly denotes the ‘general
Forms of Executive Clemency pardon to rebels for their treason and other high
Constitutional Limits on Executive Clemency political offenses’.
Pardon
Amnesty D. Limits on Executive Clemency
Administrative Penalties Constitutional Limits on Executive Clemency:
Other forms of Executive Clemency 1. It cannot be exercised in cases of
impeachment
Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the President
2. Reprieves, commutations, and pardons, and
may grant reprieves, commutations, and pardons, and remission of fines and forfeitures can be given
remit fines and forfeitures, after conviction by final only “after conviction by final judgment;
judgment. 3. A grant of amnesty must be with the
He shall also have the power to grant amnesty with the concurrence of a “majority of all the Members
concurrence of a majority of all the Members of the of Congress”
Congress.
4. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules,
A. Power of Executive Clemency and regulations shall be granted by the
President without the favorable
Non-delegable. The power of executive clemency is a recommendation of COMELEC.361
non-delegable power and must be exercised by the Other Limitations:
President personally.357 1. A pardon cannot be extended to a person
convicted of legislative contempt or civil
Clemency is not a function of the judiciary; it is an contempt.
executive function.358 The exercise of the pardoning 2. Pardon cannot also be extended for the
power is discretionary in the President and may not be purpose of absolving the pardonee of civil
controlled by the legislature or reversed by the courts, liability, including judicial costs.
save only when it contravenes its limitations.359
3. Pardon will not restore offices forfeited.362
B. Purpose for the Grant of Power of Executive
359
Clemency Cruz, Philippine Political Law, p. 215 (1995 ed).
360
Bernas Primer at 320 (2006 ed.) Cruz, Philippine Political Law,
Ratio: Human fallibility p. 215 (1995 ed).
357 361
Bernas Commentary, p 893 (2003 ed). Bernas Commentary, p 893 (2003 ed).
358 362

SCHOOL OF LAW
c. Condition, co-extensive. The

E. Pardon condition of the pardon shall be co-
Definition of Pardon extensive with the penalty remitted.
Classification of Pardon Hence, if the condition is violated after the
Scope of Pardon expiration of the remitted penalty, there
Limitations on Exercise can no longer be violation of the
When Completed conditional pardon.
Effect of Pardon
Pardon v. Parole
d. When the condition is that the
recipient of the pardon should not violate
any of the penal laws, who determines
1. Pardon
whether penal laws have been violated?
a. What is Pardon? Must the recipient of pardon undergo trial
b. Pardon as an act of grace and be convicted for the new offenses?
c. What does pardon imply? The rule that is followed is that the
acceptance of the conditions of the
a. Act of grace which exempts the individual on pardon imports the acceptance of the
whom it is bestowed form the punishment which condition that the President will also
the law inflicts for the crime he has committed. determine whether the condition has been
violated. (Torres v. Gonzales, 152 SCRA
b. Because pardon is an act of grace, no legal 272 (1987)) (1997, 2005 Bar Question)
power can compel the executive to give it. It is an
act of pure generosity of the executive and it is his
to give or to withdraw before it is completed.363 3. Scope of Pardon367
Congress has no authority to limit the effects of the
In granting the President the power of executive
President’s pardon, or to exclude from its scope
clemency, the Constitution does not distinguish
any class of offenders. Courts may not inquire in to
between criminal and administrative cases.
the wisdom or reasonableness of any pardon
(Llamas v. Orbos)
granted by the President.364
Pardon is only granted after conviction of final
c. Pardon implies guilt. A pardon looks to the
judgment.
future.
A convict who has already served his prison term
may still be extended a pardon for the purpose of
2. Classification of Pardon
relieving him of whatever accessory liabilities have
1. Plenary- Extinguishes all the penalties attached to his offense.368
imposed upon the offender, including
accessory disabilities.
2. Partial-Does not extinguish all the 4. Limitations on Exercise of Pardon
penalties. Constitutional Limitations
3. Absolute- One extended without any 1. It cannot be exercised in cases of
strings attached. impeachment
4. Conditional- One under which the convict 2. Reprieves, commutations, and pardons,
is required to comply with certain and remission of fines and forfeitures can
requirements. be given only “after conviction by final
a. Pardonee may reject conditional judgment;
pardon. Where the pardon is conditional, 3. No pardon, amnesty, parole, or
the offender has the right to reject the suspension of sentence for violation of
same since he may feel that the condition election laws, rules, and regulations shall
imposed is more onerous than the penalty be granted by the President without the
sought to be remitted365 favorable recommendation of
b. Condition, lawful. It is necessary COMELEC.369
Other Limitations:
that the condition should not be contrary
1. A pardon cannot be extended to a person
to any provision of law.366
convicted of legislative contempt or civil
contempt.
363
364 Jacinto Jimenez, Political Law Compendium 323 (2006 ed.)
368
365
366 369
Sinco, Philippine Political Law, p 281 (1954ed). Bernas Commentary, p 893 (2003 ed).

SCHOOL OF LAW
2. Pardon cannot also be extended for the rank. See Sabello v. Dept. of Education, 1989,
purpose of absolving the pardonee of civil Bernas Primer at 322)
liability, including judicial costs. ii. However, if a pardon is given because he was
3. Pardon will not restore offices forfeited370 acquitted on the ground that he did not commit
or property or interests vested in others in the crime, then reinstatement and backwages
consequence of the conviction and would be due. (Garcia v. COA, 1993)
judgment.371
In order that a pardon may be utilized as a defense
5. When Act of Pardon Completed in subsequent judicial proceedings, it is necessary
that it must be pleaded.376
Conditional: A pardon must be delivered to and
7. Pardon v. Parole
accepted by the offender before it takes effect.
Reason: The reason for requiring Parole involves only a release of the convict from
acceptance of a pardon is the need for imprisonment but not a restoration of his liberty.
protecting the welfare of its recipient. The parolee is still in the custody of the law
The condition may be less acceptable to although no longer under confinement, unlike the
him than the original punishment, and pardonee whose sentence is condoned, subject
may in fact be more onerous.372 only to reinstatement in case of violation of the
condition that may have been attached to the
Absolute: Bernas submits that acceptance by the pardon.377
condemned is required only when the offer of
clemency is not without encumbrance.373 (1995 F. Amnesty
Bar Question) Definition
Nature
Note: A pardon obtained by fraud upon the Time of Application
pardoning power, whether by misrepresentation or Effect of Application
by suppression of the truth or by any other Effects of Grant of Amnesty
imposition, is absolutely void.374 Requirements
Pardon v. Amnesty
6. Effects of Pardon Tax Amnesty
a. Relieves criminal liability375
b. Does not absolve civil liabilities 1. Definition of Amnesty
c. Does not restore public offices already forfeited,
although eligibility for the same may be restored. Grant of general pardon to a class of political
offenders either after conviction or even before the
a. As to punitive consequences and fines in charges are filed. It is the form of executive
favor of government. Pardon relieves a party from clemency which under the Constitution may be
all punitive consequences of his criminal act. granted by the executive only with the concurrence
Pardon will have the effect of remitting fines and of the legislature.378
forfeitures which otherwise will inure to the
interests of the government itself. 2. Nature
b. As to civil liabilities pertaining to private It is essentially an executive act and not a

litigants. Pardon will not relieve the pardonee of legislative act.379 (Though concurrence of Congress
the civil liability and such other claims, as may is needed)
pertain to private litigants.
(According to Sinco citing Brown v. Walker, 161 US
c. As Regards Reinstatement: 591, Congress is not prohibited from passing acts
i. One who is given pardon has no demandable of general amnesty to be extended to persons
right to reinstatement. He may however be before conviction.)380
reappointed. (Monsanto v. Factoran, 1989)
(Once reinstated, he may be given his former 3. Time of Application381 (1995 Bar Question)
370 376
Cruz, Philippine Political Law, p. 216 (1995 ed). Sinco, Philippine Political Law, p 283 (1954ed).
371 377
Sinco, Philippine Political Law, p 283 (1954ed). Cruz, Philippine Political Law, p. 220 (1995 ed).
372 378
373 379
380
374
Sinco, Philippine Political Law, p 283 (1954ed). Sinco, Philippine Political Law, p 285 (1954ed).
375 381
Sinco, Philippine Political Law, p 286 (1954ed). Jacinto Jimenez, Political Law Compendium 325 (2006 ed.)

SCHOOL OF LAW
a. Legal Nature. Tax amnesty is a general pardon

Amnesty may be granted before or after the or intentional overlooking of its authority to impose
institution of criminal prosecution and sometimes penalties on persons otherwise guilty of evasion or
even after conviction. (People v. Casido, 268 violation of revenue or tax law, [and as such]
SCRA 360) partakes of an absolute forgiveness or waiver by
the Government of its right to collect what
4. Effect of Application otherwise would be due it. (Republic v. IAC,
1991)384
By applying for amnesty, the accused must be
deemed to have admitted the accusation against b. Needs Concurrence of Congress. Bernas
him. (People v. Salig, 133 SCRA 59) submits that the President cannot grant tax
amnesty without the concurrence of Congress.385
5. Effects of the Grant of Amnesty
G. Other Forms of Executive Clemency
Criminal liability is totally extinguished by amnesty;
the penalty and all its effects are thus extinguished. Grant of reprieves, commutations and remission of
(See Article 89 of RPC) fines and forfeitures are explicit in the Constitution.
It has also been held that when a detained convict 1. Reprieve

claims to be covered by a general amnesty, his
proper remedy is not habeas corpus petition. A reprieve is a postponement of a sentence to a
Instead, he should submit his case to the proper date certain, or a stay in the execution.
amnesty board.382
2. Commutation
6. Requisites (1993 Bar Question)
1. Concurrence of a majority of all the members of Commutation is a remission of a part of the
Congress (Section 19) punishment; a substitution of a less penalty for the
2. There must be a previous admission of guilt. one originally imposed. Commutation does not
(Vera v. People) have to be in any form. Thus, the fact that a convict
was released after six years and placed under
7. Pardon v. Amnesty house arrest, which is not a penalty, already leads
to the conclusion that the penalty have been
Pardon Amnesty shortened. (Drilon v. CA)
Addressed to ODINARY Addressed to POLITICAL
offenses offenses Commutation is a pardon in form but not in
Granted to INDIVIDUALS Granted to a CLASS of substance, because it does not affect his guilt; it
persons merely reduces the penalty for reasons of public
Conditional pardon must Need not be Accepted interest rather than for the sole benefit of the
be accepted offender. In short, while a pardon reaches “both
No need for congressional Requires congressional punishment prescribed for the offense and guilt of
concurrence concurrence the offender,” a commutation merely reduces the
punishment.386
Private act of the A public act, subject to
President judicial notice
3. Remission
Pardon looks forward. Amnesty looks backward
Only penalties are Extinguishes the offense Remission of fines and forfeitures merely prevents
extinguished. itself383 the collection of fines or the confiscation of forfeited
Civil indemnity is not property; it cannot have the effect of returning
extinguished. property which has been vested in third parties or
Only granted after Maybe granted before or money already in the public treasury.387
conviction of final after conviction
judgment The power of the Chief Executive to remit fines and
forfeitures may not be limited by any act of
Congress.388 But a statute may validly authorize
7. Tax Amnesty
other officers, such as department heads or bureau
a. Legal Nature
b. Needs Concurrence of Congress 384
385
386
382 387
383 388
See Bernas Commentary, p 899 (2003 ed). Sinco, Philippine Political Law, p 285 (1954ed).

SCHOOL OF LAW
chiefs, to remit administrative fines and extinguished public debts through the obtention of
forfeitures.389 a new loan by virtue of a sovereign bond issuance,
the proceeds of which in turn were used for
IX. Borrowing Power terminating the original loan. Petitioners contend
that buyback or bond conversion are not
Power to contract or guarantee foreign loans authorized by Article VII, Section 20.
Duty of the Monetary Board
A: The language of the Constitution is simple and
Section 20. The President may contract or guarantee clear as it is broad. It allows the President to
foreign loans on behalf of the Republic of the contract and guarantee foreign loans. It makes no
Philippines with the prior concurrence of the Monetary prohibition on the issuance of certain kinds of loans
Board, and subject to such limitations as may be
or distinctions as to which kinds of debt instruments
provided by law. The Monetary Board shall, within thirty
days from the end of every quarter of the calendar are more onerous than others. This Court may not
year, submit to the Congress a complete report of its ascribe to the Constitution the meanings and
decision on applications for loans to be contracted or restrictions that would unduly burden the powers of
guaranteed by the Government or government-owned the President. The plain, clear and unambiguous
and controlled corporations which would have the language of the Constitution should be
effect of increasing the foreign debt, and containing construed in a sense that will allow the full
other matters as may be provided by law. exercise of the power provided therein. It would
be the worst kind of judicial legislation if the courts
A. Power to contract or guarantee foreign loans were to construe and change the meaning of the
Requirements organic act.392
Reason for Concurrence
Why the Monetary Board
Spouses Constantino v. Cuisia B. Duty of the Monetary Board
Duty of MB
1. Requirements (1994 Bar Question) Reason for Reporting
The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines: 1. Duty
1. With the prior concurrence of the The Monetary Board shall, within thirty days from
the end of every quarter of the calendar year,
Monetary Board, and
submit to the Congress a complete report of its
2. Subject to such limitations as may be decision on applications for loans to be contracted
provided by law or guaranteed by the Government or government-
owned and controlled corporations which would
2. Reason for Concurrence have the effect of increasing the foreign debt, and
A President may be tempted to contract or containing other matters as may be provided by
guarantee loans to subsidize his program of law.
government and leave it to succeeding
administration to pay. Also, it will enable foreign
2. Reason for Reporting
lending institutions to impose conditions on loans
that might impair our economic and even political In order to allow Congress to act on whatever
independence.390 legislation may be needed to protect public
interest.393
3. Why the Monetary Board.
Because the Monetary Board has expertise and
consistency to perform the mandate since such X. Foreign Affairs Power/Diplomatic Power
expertise or consistency may be absent among the The President and Foreign Affairs Power
Members of Congress.391 Foreign Relations Powers of the President
Source of Power
4. Spouses Constantino v. Cuisia (2005) Concurrence by the Senate
Q: The financing program for foreign loans Treaties v. Executive Agreements
instituted by the President extinguished portions of Power to Deport
the country’s pre-existing loans through either debt Judicial Review
buyback or bond-conversion. The buy-back
approach essentially pre-terminated portions of
public debts while the bond conversion scheme A. The President and Foreign Affairs Powers
389
Sinco, Philippine Political Law, p 284 (1954ed). 392
Spouses Constantino v. Cuisia, G.R. 106064, October 13, 2005;
390
Cruz, Philippine Political Law, p. 223 (1995 ed). See Bernas Primer at 326 (2006 ed.)
391 393

SCHOOL OF LAW
As head of State, the President is supposed to the Concurrence of at leas 2/3 of all the members of
spokesman of the nation on external affairs.394 The Senate is need for the validity and effectivity of:
conduct of external affairs is executive 1. Treaties of whatever kind, whether
altogether.395 He is the sole organ authorized “to bilateral or multilateral.401
speak or listen” for the nation in the broad field of
external affairs.396 2. International Agreements (that which are
permanent and original)
B. Foreign Relations Powers of the President
2. When Concurrence of Senate Not Needed
1. The power to negotiate treaties and
(2003 Bar Question)
international agreements;
2. The power to appoint ambassadors and other Less formal types of international agreements;
public ministers, and consuls; Agreements which are temporary or are mere
3. The power to receive ambassadors and other implementations of treaties or statutes do not need
public ministers accredited to the Philippines; concurrence.402
4. The power to contract and guarantee foreign
loans on behalf of the Republic; 3. Scope of Power to Concur
5. The power to deport aliens.397 The power to ratify is vested in the President
6. The power to decide that a diplomatic officer subject to the concurrence of Senate. The role of
who has become persona non grata be the Senate, however, is limited only to giving or
recalled.398 withholding its consent or concurrence, to the
7. The power to recognize governments and ratification. Hence, it is within the authority of the
withdraw recognition399 President to refuse to submit a treaty to the
Senate. Although the refusal of a state to ratify a
C. Source of Power treaty which has been signed in his behalf is a
The extensive authority of the President in foreign serious step that should not be taken lightly, such
relations in a government patterned after that of the decision is within the competence of the President
US proceeds from two general sources: alone, which cannot be encroached by the Court
1. The Constitution via a writ of mandamus. (Pimentel v. Executive
2. The status of sovereignty and Secretary, 2005)
independence of a state.
In other words, the President derives his powers The power of the Senate to give its concurrence
over the foreign affairs of the country not only from carries with it the right to introduce amendments to
specific provisions of the Constitution but also from a treaty. 403 If the President does not agree to any
customs and positive rules followed by amendments or reservations added to a treaty by
independent states in accordance with international the Senate, his only recourse is to drop the treaty
law and practice.400 entirely. But if he agrees to the changes, he may
persuade the other nation to accept and adopt the
D. Concurrence of Senate modifications.
When Concurrence of Senate Needed
4. Treaty
When Concurrence of Senate Not Needed
Scope of Power to Concur Definition
Treaty Two General Steps
Effects of Treaties
Section 21. No treaty or international agreement shall Termination of Treaties
be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate. a. Definition. Treaty is an international agreement
concluded between States in written form and
1. When Concurrence of Senate Needed governed by international law, whether embodied
in a single instrument or in two or more related
instruments and whatever designation. (1969
Vienna Convention on the Law of Treaties)
394
395
b. Two General Steps
396
397 401
398 Note that a treaty which has become customary law may become
399
part of Philippine law by incorporation through Article 2 Section.
Bernas Commentary, p 910 (2003 ed); Sinco, Philippine Political -asm
Law, p 306 (1954ed). 402
400 403
Sinco, Philippine Political Law, p 243 (1954ed). . Sinco, Philippine Political Law, p 299 (1954ed).

SCHOOL OF LAW
1. Negotiation- Here the President alone has sources of financing, including receipts from existing
authority and proposed revenue measures.
2. Treaty Approval404
A. Budgetary Power
c. Effect of Treaties
1. Contract between states as parties This power is properly entrusted to the executive
2. It is a law for the people of each state to department, as it is the President who, as chief
administrator and enforcer of laws, is in best
observe (municipal law)405
position to determine the needs of the government
and propose the corresponding appropriations
E. Treaties v. Executive Agreements
therefor on the basis of existing or expected
1. International agreements which involve sources of revenue.406
political issues or changes of national policy
and those involving international arrangements B. The Budget
of a permanent character take the form or a
treaty; while international agreements involving
The budget of receipts and expenditures
adjustment of details carrying out well
prepared by the President is the basis for the
established national policies and traditions and
general appropriation bill passed by the
involving arrangements of a more or less
Congress.407
temporary nature take the form of executive
agreements
The phrase “sources of financing” has reference to
2. In treaties, formal documents require
sources other than taxation.408
ratification, while executive agreements
become binding through executive action.
C. Government Budgetary Process
(Commissioner of Customs v. Eastern Sea
Trading 3 SCRA 351)
The complete government budgetary process has
F. Power to Deport been graphically described as consisting of four
major phases:
1. Budget Preparation
The power to deport aliens is lodged in the
2. Legislative Authorization
President. It is subject to the regulations prescribed
3. Budget Execution
in Section 69 of the Administrative Code or to such
future legislation as may be promulgated. (In re 4. Budget Accountability409
McClloch Dick, 38 Phil. 41)
The adjudication of facts upon which the D. Congress May Not Increase Appropriations
deportation is predicated also devolves on the
Chief Executive whose decisions is final and The Congress may not increase the appropriations
executory. (Tan Tong v. Deportation Board, 96 Phil recommended by the President for the operation of
934, 936 (1955)) the Government as specified in the budget. (Article
VI Section 25(1))
G. Judicial Review
XII. Informing Powers
Treaties and other international agreements
concluded by the President are also subject to Not Mandatory
check by the Supreme Court, which has the power State of the Nation Address
to declare them unconstitutional. (Art. VIII, Section
4) Section 23. The President shall address the Congress
at the opening of its regular session. He may also
appear before it at any other time.
XI. Budgetary Power
Budgetary Power A. Not Mandatory
The Budget
Government Budgetary Process
Congress May Not Increase Appropriations
Section 22. The President shall submit to the

Congress within thirty days from the opening of every 406
regular session, as the basis of the general Cruz, Philippine Political Law, p. 224 (1995 ed).
407
appropriations bill, a budget of expenditures and Bernas Primer at 329 (2006 ed.)
408
404 409
Sinco, Philippine Political Law, p 299 (1954ed). Guingona v. Carague, 196 SCRA 221 (1991); Bernas
405
Sinco, Philippine Political Law, p 300 (1954ed). Commentary, p 912 (2003 ed).

SCHOOL OF LAW
Although couched in mandatory language, the first

sentence of this provision does not as a rule
impose a compellable duty on the President.410
B. State of the Nation Address
The President usually discharges the informing

power through the state-of-the-nation address,
which is delivered at the opening of the regular
session of the legislature.411
410
411

SCHOOL OF LAW
4. The appellate jurisdiction of the Supreme

Court may not be increased by law without its
JUDICIAL DEPARTMENT advice or concurrence. (art. 6 §30)
5. Appointees to the judiciary are now
nominated by the Judicial and Bar Council and
I. JUDICIAL DEPARTMENT no longer subject to confirmation by
II. JUDICIAL POWER(Section 1) Commission on Appointments. (art. 8 §9)
III. JURISDICTION (Section 2) 6. The Supreme Court now has
IV. THE SUPREME COURT(Sections 4, 7-12) administrative supervision over all lower courts
V. POWERS OF THE SUPREME COURT and their personnel. (art. 8 §6)
7. The Supreme Court has exclusive power
(Sections 5,6, 11, 16)
to discipline judges of lower courts. (art 8 §11)
VI. JUDICIAL REVIEW 8. The members of the Supreme Court and
VII. DECIDING A CASE (Sections 4,13-15) all lower courts have security of tenure, which
VIII. OTHER COURTS cannot be undermined by a law reorganizing
the judiciary. (art. 8 §11)
I. Judicial Department 9. They shall not be designated to any
agency performing quasi-judicial or
Composition
administrative functions. (art. 8 §12)
Common Provisions
Independence of Judiciary 10. The salaries of judges may not be
reduced during their continuance in office. (art.
A. Composition 8 §10)
11. The judiciary shall enjoy fiscal autonomy
The Supreme Court and all lower courts make up the (art 8§3)
judicial department of our government.412 12. Only the Supreme Court may order the
temporary detail of judges (art 8 §5(3))
B. Common Provisions 13. The Supreme Court can appoint all
officials and employees of the judiciary. (art. 8
1. Independence of §5(6))
Judiciary (See Section 3)
2. Congressional Section 3. The Judiciary shall enjoy fiscal autonomy.
Oversight (Section 2) Appropriations for the Judiciary may not be reduced by
3. Separation of the legislature below the amount appropriated for the
previous year and, after approval, shall be
Powers (Section 12)
automatically and regularly released.
4. General Rules
(Section 14)
(1999 Bar Question)
5. Period to Decide Fiscal autonomy means freedom from outside
Case (Section 15) control.As envisioned in the Constitution, fiscal
autonomy enjoyed by the Judiciary…contemplates
C. Independence of Judiciary (2000 Bar Question) a guarantee of full flexibility to allocate and
utilize their resources with the wisdom and
To maintain the independence of the judiciary, the dispatch that their needs, require.
following safeguards have been embodied in the
Constitution:413 Fiscal autonomy recognizes the power and
1. The Supreme Court is a constitutional authority to (a) levy, assess and collect fees, (b) fix
body. It cannot be abolished nor may its rates of compensation not exceeding the highest
membership or the manner of its meeting be rates authorized by law for compensation, and (c)
changed by mere legislation. (art 8 §2) pay plans of the government and allocate or
2. The members of the Supreme Court may disburse such sums as may be provided by law or
not be removed except by impeachment. (art. prescribed by them in the course of the discharge
9 §2) of their functions.
3. The SC may not be deprived of its
minimum original and appellate jurisdiction as The imposition of restrictions and constraints on
prescribed in Article X, Section 5. (art. 8 §2) the manner the [Supreme Court] allocate and
utilize the funds appropriated for their operations is
anathema to fiscal autonomy and violative of the
express mandate of the Constitution and of the
412
Cruz, Philippine Political Law, p. 231 (1995 ed). independence and separation of powers. (Bengzon
413
Cruz, Philippine Political Law, p. 229 (1995 ed). v. Drilon)

SCHOOL OF LAW
An accused who has been convicted by final

Reason. Fiscal autonomy is granted to the judgment still possesses collateral rights and these
Supreme Court to strengthen its autonomy.414 The rights can be claimed in the appropriate courts [e.g.
provision is intended to remove courts from the death convict who becomes insane after his final
mercy and caprice, not to say vindictiveness, of the conviction cannot be executed while in a state of
legislature when it considers the general insanity] The suspension of death sentence is an
appropriations bill.415 exercise of judicial power. It is not usurpation of the
presidential power of reprieve though the effect is
II. Judicial Power the same- the temporary suspension of the
execution of the death convict.” (Echegaray v. Sec.
Where Vested of Justice, 1999)
Definition The issuance of subsequent resolutions by the
Scope Court is simply an exercise of judicial power under
Intrinsic Limit on Judicial Power Art. VIII of the Constitution, because the execution
Grave Abuse of Discretion of the Decision is but an integral part of the
Role of Legislature in Judicial Process adjudicative function of the Court. It is clear that the
final judgment includes not only what appears upon
Section 1. The judicial power shall be vested in one its face to have been so adjudged but also those
Supreme Court and in such lower courts as may be matters “actually and necessarily included therein
established by law.
or necessary thereto.” Certainly, any activity that is
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally needed to fully implement a final judgment is
demandable and enforceable, and to determine whether or necessarily encompassed by said judgment.
not there has been a grave abuse of discretion amounting to (MMDA v. Concerned Citizens of Manila Bay, G. R.
lack or excess of jurisdiction on the part of any branch or No. 171947, Feburary15, 2011.)
instrumentality of the Government.
D. Limit on Judicial Power
A. Judicial Power Where Vested (1989 Bar Question) (1) Courts may not assume to perform
non-judicial functions.
Judicial power shall be vested in one Supreme (2) It is not the function of the judiciary to
Court and in such lower courts as may be give advisory opinion
established by law. (Section 1 par. 1) (3) Judicial power must sometimes yield
to separation of powers, political questions and
B. Definition of Judicial Power (1994 Bar Question) enrolled bill rule.
Traditional Concept: Judicial power includes the 1. By the principle of separation of powers, courts
duty of the courts of justice to settle actual may neither attempt to assume nor be
controversies involving rights which are legally compelled to perform non-judicial functions.418
demandable and enforceable. (Section 1, 2nd Thus, a court may not be required to act as a board
sentence) of arbitrators (Manila Electric Co. v. Pasay
Transportation (1932). Nor may it be charged with
Broadened Concept: Duty to determine whether administrative functions except when reasonably
[or not] there has been a grave abuse of discretion incidental to the fulfillment of official duties.
amounting to lack or excess of jurisdiction on the (Noblejas v. Tehankee) Neither is it’s the function
party of any branch or instrumentality of the of the judiciary to give advisory opinions.
Government. (Section 1, 2nd sentence)
2. Advisory Opinions.
C. Scope of Judicial Power (1989 Bar Question) An advisory opinion is an opinion issued by a
court that does not have the effect of resolving a
Judicial power is the measure of the allowable specific legal case, but merely advises on the
scope of judicial action.416 The use of the word constitutionality or interpretation of a law.
“includes” in Section 1 connotes that the provision
is not intended to be an exhaustive list of what The nature of judicial power is also the foundation
judicial power is.417 of the principle that it is not the function of the
judiciary to give advisory opinion.419 If the courts
will concern itself with the making of advisory
opinions, there will be loss of judicial prestige.
414
There may be less than full respect for court
Bernas Primer at 336 (2006 ed.) decisions.
415
416 418
417 419

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Although judicial power is vested in the judiciary,

Declaratory Judgment v. Advisory the proper exercise of such power requires prior
Opinions. legislative action:
Declaratory Advisory 1. Defining such enforceable and
Judgment Opinions demandable rights; and
Involves real parties Response to a legal
with real conflicting issue posed in the
2. Determining the court with jurisdiction to
interests abstract in advance of hear and decide controversies or disputes
any actual case in arising from legal rights.425
which it may be
presented Courts cannot exercise judicial power when there is
Judgment is a final Binds no one no applicable law. The Court has no authority to
one forever binding entertain an action for judicial declaration of
on the parties.
citizenship because there was no law authorizing
A judicial act Not a judicial act420 such proceeding. (Channie Tan v. Republic, 107
Phil 632 (1960)) An award of honors to a student
3. The ‘broadened concept’ of judicial power is not by a board of teachers may not be reversed by a
meant to do away with the political questions court where the awards are governed by no
doctrine itself. The concept must sometimes yield applicable law. (Santiago Jr. v. Bautista) Nor may
to separation of powers, to the doctrine on courts reverse the award of a board of judges in an
“political questions” or to the “enrolled bill” oratorical contest. (Felipe v. Leuterio, 91 Phil 482
rule.421 (1952)).426
E. Grave Abuse Clause
III. Jurisdiction
“To determine whether or not there has been a grave abuse of Definition
discretion amounting to lack or excess of jurisdiction on the Scope
part of any branch or instrumentality of the Government” Role of Congress
Not every abuse of discretion can be the occasion Section 2. The Congress shall have the power to define,
for the Court to come in by virtue of the second prescribe, and apportion the jurisdiction of the various courts
sentence of Section 1. It must be “grave abuse of but may not deprive the Supreme Court of its jurisdiction
discretion amounting to lack or excess of over cases enumerated in Section 5 hereof.
jurisdiction.”422 No law shall be passed reorganizing the Judiciary when it
under-mines the security of tenure of its Members.
There is grave abuse of discretion:
(1) when an act done contrary to the A. Definition
Constitution, the law, or jurisprudence, or
(2) it is executed whimsically, Jurisdiction is the power and authority of the court
to hear, try and decide a case. (De La Cruz v. CA,
capriciously, arbitrarily out of malice, ill will
2006)
or personal bias. (Infotech v. COMELEC,
2004)
B. Scope
Again, the ‘broadened concept’ of judicial power is
not meant to do away with the political questions It is not only the (1) power to determine, but the
doctrine itself. The concept must sometimes yield (2) power to enforce its determination.
to separation of powers, to the doctrine on “political The (3) power to control the execution of its
questions” or to the “enrolled bill” rule.423 (1995 Bar decision is an essential aspect of jurisdiction
Question) (Echegaray . Sec. of Justice, 301 SCRA 96)
Rule 65 embodies the Grave Abuse Clause.424 C. Role of Congress
F. Role of Legislature in Judicial Process Power. The Congress shall have the power to
define, prescribe, and apportion the jurisdiction of
the various courts. (Section 2)
Limitations:
420
421
See Bernas Commentary, p 919-920 (2003 ed).
422
423 425
See Bernas Commentary, p 919-920 (2003 ed). Bernas Primer at 335 (2006 ed.)
424 426
Annotation to the Writ of Amparo. Bernas Primer at 335 (2006 ed.)

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1. Congress may not deprive the Supreme Section 4. (1) The Supreme Court shall be composed of
a Chief Justice and fourteen Associate Justices. It may sit
Court of its jurisdiction over cases
en banc or in its discretion, in division of three, five, or
enumerated in Section 5. ( art. 8 §2) seven Members. Any vacancy shall be filled within ninety
2. No law shall be passed reorganizing the days from the occurrence thereof.
Judiciary when it under-mines the security
of tenure of its Members. ( art. 8 §2)
3. The appellate jurisdiction of the Supreme Composition of the Supreme Court: Fifteen (15).
Court may not be increased by law except 1 Chief Justice and 14 Associate Justices.
upon its advice and concurrence. (art. 6 §
30) By so fixing the number of members of the
Supreme Court at [fifteen], it seems logical to infer
* Jurisdiction in Section 2 refers to jurisdiction over that no statute may validly increase or decrease
cases [jurisdiction over the subject matter].427 it.428
IV. The Supreme Court Collegiate Court. The primary purpose of a

collegiate court is precisely to provide for the most
Nature exhaustive deliberation before a conclusion is
Composition reached.429
Qualifications
Judicial and Bar Council C. Qualifications
Appointment
Salaries
Section 7. (1) No person shall be appointed Member of
Tenure the Supreme Court or any lower collegiate court unless
Removal he is a natural-born citizen of the Philippines. A Member
Prohibition of the Supreme Court must be at least forty years of age,
and must have been for fifteen years or more a judge of a
A. Nature lower court or engaged in the practice of law in the
Philippines.
(2) The Congress shall prescribe the qualifications of
The [Supreme] Court is a court of law. Its primary
judges of lower courts, but no person may be appointed
task is to resolve and decide cases and issues judge thereof unless he is a citizen of the Philippines and
presented by litigants according to law. However, it a member of the Philippine Bar.
may apply equity where the court is unable to (3) A Member of the Judiciary must be a person of proven
arrive at a conclusion or judgment strictly on the competence, integrity, probity, and independence.
basis of law due to a gap, silence, obscurity or
vagueness of the law that the Court can still Qualifications of a Member of the Supreme
legitimately remedy, and the special circumstances Court:
of the case. (Rule 3, Section 1 of 2010 SC Internal 1. Must be a natural born citizen of the
Rules) Philippines
2. Must at least be 40 years of age;
Concept of Precedence in the Supreme Court 3. Must have been for 15 years or more a judge
The Chief Justice enjoys precedence over all the of a lower court or engaged in the practice of
other Members of the Court in all official functions. law in the Philippines; and
The Associate Justices shall have precedence 4. A person of proven competence, integrity,
according to the order of their appointments as probity, and independence.
officially transmitted to the Supreme Court.
Congress may not alter the qualifications of
The rule on precedence shall be applied in the Members of the Supreme Court and the
following instances: constitutional qualifications of other members of the
(a) in the determination of the Chairpersonship of Judiciary. But Congress may alter the statutory
the Division; qualifications of judges and justices of lower
(b) in the seating arrangement of the Justices in courts.430
all official functions; and
(c) in the choice of office space, facilities, It behooves every prospective appointee to the
equipment, transportation, and cottages. Judiciary to apprise the appointing authority of
every matter bearing on his fitness for judicial
office, including such circumstances as may reflect
B. Composition
428
429
427 430

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on his integrity and probity. Thus the fact that a Members first appointed, the representative of the
prospective judge failed to disclose that he had Integrated Bar shall serve for four years, the professor of
been administratively charged and dismissed from law for three years, the retired Justice for two years, and
the service for grave misconduct by a former the representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary
President of the Philippines was used against him.
ex officio of the Council and shall keep a record of its
It did not matter that he had resigned from office proceedings.
and that the administrative case against him had (4) The regular Members of the Council shall receive
become moot and academic.431 such emoluments as may be determined by the Supreme
Similary, before one who is offered an appointment Court. The Supreme Court shall provide in its annual
to the Supreme Court can accept it, he must budget the appropriations for the Council.
correct the entry in his birth certificate that he is an (5) The Council shall have the principal function of
alien.432 recommending appointees to the Judiciary. It may
exercise such other functions and duties as the Supreme
Court may assign to it.
“A Member of the Judiciary must be a person of proven
competence, integrity, probity, and independence.”
Composition of JBC:
Competence. In determining the competence of the 1. SC Chief Justice (ex officio Chairman)
applicant or recommendee for appointment, the Judicial Ex officio Members
and Bar Council shall consider his educational 2. Secretary of Justice
preparation, experience, performance and other 3. Representative of Congress
accomplishments of the applicant. (Rule 3 Section 1 of Regular Members (Term of 4 years appointed
JBC Rules; See Canon 6 of 2004 New Code of Judicial by President with the consent of CA)
Conduct) 4. Representative of IBP
5. Professor of Law
Integrity. The Judicial and Bar Council shall take every 6. Retired Member of SC
possible step to verify the applicant’s record of and 7. Representative of private sector
reputation for honesty, integrity, incorruptibility,
irreproachable conduct and fidelity to sound moral and The Clerk of the Supreme Court shall be the
ethical standards. (Rule 4, Section 1 of JBC Rules; See Secretary ex officio of the JBC.
Canon 2 of 2004 NCJC)
Representative from Congress. Such
Probity and Independence. Any evidence relevant to representative may come from either House.
the candidate’s probity and independence such as, but In practice, the two houses now work out a
not limited to, decision he has rendered if he is an way of sharing representation.433 A member
incumbent member of the judiciary or reflective of the from each comes from both Houses but each
soundness of his judgment, courage, rectitude, cold have only half a vote.434
neutrality and strength of character shall be considered.
(Rule 5 Section of JBC Rules; See Canon 1 of 2004 Function of JBC. JBC’s principal function is to
NCJC) recommend to the President appointees to the
Judiciary. It may exercise such other functions and
D. Judicial and Bar Council (1988, 1999 Bar duties as the Supreme Court may assign to it.
Question)
Composition JBC does not perform judicial or quasi-judicial
Function functions (J Brion’s Concurring and Dissenting
Reason for Creation Opinion in De Castro v. JBC)
Section 8. Rationale for Creation of JBC. The Council was

(1) A Judicial and Bar Council is hereby created under the principally designed to eliminate politics from the
supervision of the Supreme Court composed of the Chief appointment and judges and justices. Thus,
Justice as ex officio Chairman, the Secretary of Justice, appointments to the Judiciary do not have to go
and a representative of the Congress as ex officio
through a political Commission on Appointments.435
Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court,
and a representative of the private sector. Relationship of JBC and SC
(2) The regular members of the Council shall be The Court cannot dictate on the JBC the results of
appointed by the President for a term of four years with its assigned task, i.e., who to recommend or what
the consent of the Commission on Appointments. Of the standards to use to determine who to recommend.
It cannot even direct the JBC on how and when to
431
In re JBC v. Judge Quitain, JBC No. 013, August 22, 2007.
432
Kilosbayan v. Ermita, G.R. No. 177721, July 3, 2007. This was 433
the case of Justice Gregory Ong of the Sandiganbayanwho was being 434
promoted to the Supreme court. Ong, however, remains in the Bernas Commentary, p 984 (2003 ed).
435
Sandiganbayan. Bernas Primer at 357 (2006 ed.)

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do its duty, but it can, under its power of who is not in the list. If the President is not satisfied
supervision, direct the JBC to “take such action or with the list, he may ask for another list.436
step as prescribed by law to make them perform
their duties,” if the duties are not being performed Why at least 3? The reason for requiring at least
because of JBC’s fault or inaction, or because of three nominees for every vacancy is to give the
extraneous factors affecting performance. Note in President enough leeway in the exercise of his
this regard that, constitutionally, the Court can also discretion when he makes his appointment. If the
assign the JBC other functions and duties – a nominee were limited to only one, the appointment
power that suggests authority beyond what is would in effect be made by the Judicial and Bar
purely supervisory. (J Brion’s Concurring and Council, with the President performing only the
Dissenting Opinion in De Castro v. JBC) mathematical act of formalizing the commission.437
The process of preparing and submitting a list of Judges may not be appointed in an acting capacity
nominees is an arduous and time-consuming task or temporary capacity.438 It should be noted that
that cannot be done overnight. It is a six-step what the Constitution authorizes the President to
process lined with standards requiring the JBC to do is to appoint Justices and judges and not the
attract the best available candidates, to examine authority merely to designate a non-member of
and investigate them, to exhibit transparency in all the Supreme Court temporarily to sit as Justice of
its actions while ensuring that these actions Supreme Court.439
conform to constitutional and statutory standards
(such as the election ban on appointments), to ASM: Do you know that when there is a vacancy in
submit the required list of nominees on time, and to the Supreme Court, the remaining members of the
ensure as well that all these acts are politically Tribunal vote and make a recommendation to the
neutral. On the time element, the JBC list for the Judicial and Bar Council.
Supreme Court has to be submitted on or before
the vacancy occurs given the 90-day deadline that F. Salaries
the appointing President is given in making the
appointment. The list will be submitted, not to Section 10. The salary of the Chief Justice and of the
the President as an outgoing President, nor to Associate Justices of the Supreme Court, and of judges
the election winner as an incoming President, of lower courts shall be fixed by law. During their
but to the President of the Philippines whoever continuance in office, their salary shall not be decreased.
he or she may be. If the incumbent President
does not act on the JBC list within the time left in The prohibition of the diminution of the salary of
her term, the same list shall be available to the Justices and judges during their continuance in
new President for him to act upon. In all these, the office is intended as a protection for the
Supreme Court bears the burden of overseeing independence of the judiciary.440
that the JBC’s duty is done, unerringly and with
utmost dispatch; the Court cannot undertake this The clear intent of the Constitutional Commission
supervision in a manner consistent with the was to subject the salary of the judges and justices
Constitution’s expectation from the JBC unless it to income tax. (Nitafan v. CIR, 1987)
adopts a pro-active stance within the limits of its
supervisory authority. (J Brion’s Concurring and G. Tenure
Dissenting Opinion in De Castro v. JBC)
Section 11. The Members of the Supreme Court and
judges of lower courts shall hold office during good
E. Appointment behavior until they reach the age of seventy years or
become incapacitated to discharge the duties of their
Section 9. The Members of the Supreme Court and office. The Supreme Court en banc shall have the power
judges of lower courts shall be appointed by the President of discipline judges of lower courts, or order their
from a list of at least three nominees prepared by the dismissal by a vote of a majority of the Members who
Judicial and Bar Council for every vacancy. Such actually took part in the deliberations on the issues in the
appointments need no confirmation. case and voted thereon.
For the lower courts, the President shall issue the
appointments within ninety days from the submission of Security of Tenure is essential to an independent
the list. judiciary.
For every vacancy, the Judicial and Bar Council 436

submits to the President a list of at least three Bernas Commentary, p 985 (2003 ed).
437
names. The President may not appoint anybody Cruz, Philippine Political Law, p. 234 (1995 ed).
438
439
440

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The Supreme Court may investigate or discipline its Take note of the other tasks given to SC or the
own members. Members of SC by the Constitution:
1. SC en banc as Presidential Electoral
Bar Matter No. 979, In Re: 1999 Bar Examinations: A Tribunal (art 7 §4)
justice was censure for failing to disclose on time his 2. Chief Justice as presiding officer of the
relationship to an examinee and for breach of duty and impeachment Court when the President is
conifence. 50% of the fees due the Justice as a former in trial (art. 11 §3(6)).
chairman was forfeited. 3. Chief Justice as ex officio chairman of the
JBC. (art. 8 §8(1)).
IN RE: UNDATED LETTER OF MR. LOUIS C. 4. Justices as members of Electoral
BIRAOGO A.M. No. 09-2-19-SC: Justice Reyes was Tribunals (art. 6 §17).
liable for Grave Misconduct for leaking a confidential
internal document and was fined 500,000.00 and was
V. Powers of Supreme Court
disqualified from holding any office or employment in
government. He was also suspended indefinitely from General Power
the practice of law. Specific Powers
Original Jurisdiction
(See A.M. No. 10-4-20-SC, May 4, 2010, Internal Appellate Jurisdiction
Rules) Temporary Assignment of Judges
Change of Venue or Place of Trial
Rule-Making Power
H. Removal Appointment of Court Personnel
Administrative Supervision of Courts
By Impeachment. The Members of the Supreme Disciplinary/Dismissal Powers
Court are removable only by impeachment. They Contempt Powers
can be said to have failed to satisfy the Annual Report
requirement of “good behavior” only if they are
guilty of the offenses which are constitutional Section 5. The Supreme Court shall have the following
grounds of impeachment. powers:
1. Exercise original jurisdiction over cases affecting
The members of the Supreme Court may be ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo
removed from office on impeachment for, and warranto, and habeas corpus.
conviction of: 2. Review, revise, reverse, modify, or affirm on appeal or
1. Culpable violation of the Constitution; certiorari as the law or the Rules of Court may provide,
2. Treason; final judgments and orders of lower courts in:
3. Bribery; (a) All cases in which the constitutionality or validity
4. Graft and Corruption; of any treaty, international or executive agreement, law,
5. Other High Crimes presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
6. Betrayal of Public Trust(Article XI, Section (b) All cases involving the legality of any tax, impost,
2) assessment, or toll, or any penalty imposed in relation
thereto.
A Supreme Court Justice cannot be charged in a (c) All cases in which the jurisdiction of any lower
criminal case or a disbarment proceeding, because court is in issue.
the ultimate effect of either is to remove him from (d) All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
office, and thus circumvent the provision on (e) All cases in which only an error or question of
removal by impeachment thus violating his security law is involved.
of tenure (In Re: First Indorsement from Hon. Raul 3. Assign temporarily judges of lower courts to other
Gonzalez, A.M. No. 88-4-5433) stations as public interest may require. Such temporary
assignment shall not exceed six months without the
H. Prohibition consent of the judge concerned.
4. Order a change of venue or place of trial to avoid a
miscarriage of justice.
Section 12. The Members of the Supreme Court and of 5. Promulgate rules concerning the protection and
other courts established by law shall not be designated to enforcement of constitutional rights, pleading, practice,
any agency performing quasi-judicial or administrative and procedure in all courts, the admission to the practice
functions. of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and
The provision merely makes explicit an application inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade,
of the principles of separate of powers.441 and shall not diminish, increase, modify substantive
441 rights. Rules of procedure of special courts and quasi-

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judicial bodies shall remain effective unless disapproved Note that under international law, diplomats and
by the Supreme Court. even consuls to a lesser extent, are not subject to
6. Appoint all officials and employees of the Judiciary in jurisdiction of the courts of the receiving State,
accordance with the Civil Service Law. save in certain cases, as when immunity is waived
either expressly or impliedly. In such instances, the
Section 6. The Supreme Court shall have administrative Supreme Court can and probably should take
supervision over all courts and the personnel thereof. cognizance of the litigation in view of possible
international repercussions.443
Section 11
xxxThe Supreme Court en banc shall have the power of The petitions for certiorari, mandamus, prohibition,
discipline judges of lower courts, or order their dismissal and quo warranto are special civil actions. The
by a vote of a majority of the Members who actually took
part in the deliberations on the issues in the case and
questions raised in the first three petitions are
voted thereon. questions of jurisdiction or grave abuse of
discretion and, in fourth, the title of the respondent.
A. General Power The petition for habeas corpus is a special
proceeding.444
Judicial Power (§1) Concurrent Jurisdiction.
The Supreme Court has concurrent original
B. Specific Powers jurisdiction with Regional Trial Courts in cases
affecting ambassadors, other public ministers and
Specific Powers of the Supreme Court under consuls. (BP 129 § 21(2))
Article VIII: The Supreme Court has concurrent original
1. Original Jurisdiction jurisdiction with the Court of Appeals in petitions for
2. Appellate Jurisdiction certiorari, prohibition and mandamus against the
3. Temporary Assignment of Judges Regional Trial Courts. (BP 129 § 9(1))
4. Change of Venue or Place of Trial The Supreme Court has concurrent original
5. Rule-Making Power jurisdiction with the Court of Appeals and the
6. Appointment of Court Personnel (§5) Regional Trial Courts in petitions for certiorari,
7. Administrative Supervision of Courts (§6) prohibition and mandamus against lower courts
and bodies and in petitions for quo warranto and
8. Dismissal/ Removal Powers (§11) habeas corpus. (BP 129 §9(1), §21(2))
(Section 5(1) and (2) refer to the irreducible
jurisdiction of the Supreme Court while Section 5 Principle of Judicial Hierarchy
(3 -6) and Section 6 provide of auxiliary Under a judicial policy recognizing hierarchy of
administrative powers.) courts, a higher court will not entertain direct resort
to it unless the redress cannot be obtained in the
Other Powers of SC: appropriate courts. (Santiago v. Vasquez, 217
1. Jurisdiction over proclamation of Martial SCRA 167) Thus, while it is true that the issuance
law or suspension of the writ of habeas of a writ of prohibition under Rule 65 is within the
corpus; (art. 7 §18) jurisdiction of the Supreme Court, a petitioner
2. Jurisdiction over Presidential and Vice- cannot seek relief from the Supreme Court where
Presidential election contests; (art. 7 §4) the issuance of such writ is also within the
3. Jurisdiction over decision, order, or ruling competence of the Regional Trial Court or the
of the Constitutional Commissions. (art. 9 §7) Court of Appeals.
4. Supervision over JBC (art. 8 §8(1)) A direct recourse of the Supreme Court’s original
5. Power to Punish Contempt jurisdiction to issue writs should be allowed only
when there are special and important reasons
C. Original Jurisdiction therefore, clearly and specifically set out in the
petition. (Mangahas v. Paredes, 2007)
Section 5(1). The Supreme Court has original
jurisdiction over: Q: What cases may be filed originally in the
1. Cases affecting ambassadors, other Supreme Court?
public ministers and consuls. A: Only petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus,
2. Petitions for certiorari, prohibition, disciplinary proceedings against members of the
mandamus, quo warranto, and habeas judiciary and attorneys, and affecting
corpus.442 ambassadors, other public ministers and consuls
443
442 444
See Rule 65, 66 and 102, Rules of Court. Cruz, Philippine Political Law, p. 252 (1995 ed).

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may be filed originally in the Supreme Court. (Rule reclusion perpetua or life imprisonment are not the
56, Section 1, Rules of Court) same. In case the sentence is death, there is
automatic review by the Court of Appeals and
D. Appellate Jurisdiction ultimately by the Supreme Court. This is
mandatory and neither the accused nor the courts
Section 5(2). The Supreme Court has the power to may waive the right of appeal. In the case of the
review, revise, reverse, modify, or affirm on appeal sentence of reclusion perpetua or life
or certiorari as the law or the Rules of Court may imprisonment, however, although the Supreme
provide, final judgments and orders of lower courts Court has jurisdiction to review them, the review is
in: not mandatory. Therefore review in this later cases
a. All cases in which the constitutionality or may be waived and appeal may be withdrawn.448
validity of any treaty, international or
executive agreement, law, presidential In Republic v. Sandiganbayan, 2002, it was held
decree, proclamation, order, instruction, that the appellate jurisdiction of the Supreme Court
ordinance, or regulation is in question. over decisions and final orders of the
b. All cases involving the legality of any tax, Sandiganbayan is limited to questions of law. A
impost, assessment, or toll, or any penalty question of law exists when the doubt or
imposed in relation thereto. controversy concerns the correct application of law
c. All cases in which the jurisdiction of any or jurisprudence to a certain set of facts; or when
lower court is in issue. the issue does not call for an examination of the
d. All criminal cases in which the penalty probative value of the evidence presented, the
imposed is reclusion perpetua or higher. truth or falsehood of facts being admitted.
e. All cases in which only an error or
question of law is involved. Section 5(2), (a) and (b) explicitly grants judicial
review in the Supreme Court. (Judicial Review will
Irreducible. This appellate jurisdiction of the be discussed in the next chapter)
Supreme Court is irreducible and may not be
withdrawn from it by Congress.445 E. Temporary Assignment of Judges
Final Judgments of lower courts. It should be Section 5(3). The Supreme Court has the power to
noted that the appeals allowed in this section are assign temporarily judges of lower courts to other
from final judgments and decrees only of “lower stations as public interest may require. Such
courts” or judicial tribunals. Administrative temporary assignment shall not exceed six months
decisions are not included.446 without the consent of the judge concerned.
The lower courts have competence to decide Rationale of the Provision. The present rule
constitutional questions. Section 5(2)(a) provides bolsters the independence of the judiciary in so far
that Supreme Court has appellate jurisdiction over as it vests the power to temporarily assign judges
“final judgments and orders all cases in which the of inferior courts directly in the Supreme Court and
constitutionality or validity of any treaty, no longer in the executive authorities and
international or executive agreement, law, conditions the validity of any such assignment in
presidential decree, proclamation, order, excess of six months upon the consent of the
instruction, ordinance or regulation is in question.” transferred judge. This will minimize if not
altogether eliminate the pernicious practice of the
Review of Death Penalty. Section 5 requires a rigodon de jeuces, or the transfer of judges at will
mandatory review by the Supreme Court of cases to suit the motivations of the chief executive.449
where the penalty imposed is reclusion perpetua,
life imprisonment, or death. However, the Purpose of Transfer. Temporary assignments
Constitution has not proscribed an intermediate may be justified to arrange for judges with clogged
review. To ensure utmost circumspection before dockets to be assisted by their less busy
the penalty of death, reclusion perpetua or life colleagues, or to provide for the replacement of the
imprisonment is imposed, the Rule now is that such regular judge who may not be expected to be
cases must be reviewed by the Court of Appeals impartial in the decision of particular cases.450
before they are elevated to the Supreme Court.447
Note, however, that the rule for the review of Permanent Transfer. Since transfer imports
decisions of lower courts imposing death or removal from one office and since a judge enjoys
445
448
446
Cruz, Philippine Political Law, p. 256 (1995 ed). People v. Rocha and Ramos, G.R. No. 173797, August 31, 2007.
449
447
People v. Mateo, G.R. No. 147678-87. July 7, 2004; People v. Cruz, Philippine Political Law, p. 259 (1995 ed).
450
Lagua, G.R. No. 170565, January 31, 2006. Cruz, Philippine Political Law, p. 259 (1995 ed).

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security of tenure, it cannot be effected without the Court the totality of the administration of justice and
consent of the judge concerned.451 thus makes for a more independent judiciary.
F. Change of Venue or Place of Trial Enhances the capacity to render justice. It also
enhances the Court’s capacity to render justice,
Section 5(4). The Supreme Court has the power to especially since, as the Supreme Court has had
order a change of venue or place of trial to avoid a occasion to say, it includes the inherent authority to
miscarriage of justice. suspend rules when the requirement of justice
demand.
This power is deemed to be an incidental and Moreover, since it is to the Supreme Court that rule
inherent power of the Court. (See People v. making authority has been given, rules
Gutierrez, 36 SCRA 172 (1970)) promulgated by special courts and quasi-judicial
bodies are effective unless disapproved by the
G. Rule Making Power Supreme Court.
Power to Promulgate Rules
Limits on the Rule Making Power 4. Test to Determine whether the rules diminish,
Nature and Function of Rule Making Power increase or modify substantive rights
Test to Determin Whether Rules are Substantive 1. If the rule takes away a vested right, it is a
Rules Concerning Protection of Constitutional Rights substantive matter.
Admission to the Practice of Law 2. If the rule creates a right, it may be a
Integration of the Bar substantive matter.
Congress and the Rules of Court 3. If it operates as a means of implementing
an existing right, then the rule deals merely
1. Power to Promulgate Rules with procedure. (Fabian v. Disierto)
The Supreme Court has the power to promulgate
rules concerning: Illustrative cases where the rule merely deals
with procedure:
1. The protection and enforcement of
constitutional rights;
Maniago v. CA, 1996
2. Pleading, practice, and procedure in all The rule that unless a reservation to file a
courts; separate civil action is reserved, the civil case is
3. The admission to the practice of law, deemed filed with the criminal case is not about
4. The Integrated Bar; substantive rights. Whether the two actions must
be tried in a single proceeding is a matter of
5. Legal assistance to the underprivileged. procedure.
(Section 5(5))
Fabian v. Desierto, 1998
2. Limits on SC’s Rule Making Power
The transfer by the Supreme Court of pending
1. Such rules shall provide a simplified and cases involving a review of decision of the Office
inexpensive procedure for the speedy of the Ombudsman in administrative actions to
disposition of cases. the Court of Appeals is merely procedural. This
2. They shall be uniform for all courts of the is because, it is not the right to appeal of an
same grade. aggrieved party which is affected by law. The
right has been preserved. Only the procedure by
3. They shall not diminish, increase, modify which the appeal is to be made or decided has
substantive rights. been changed.
Rules of procedure of special courts and People v. Lacson, 400 SCRA 267
quasi-judicial bodies shall remain effective (This is quite confusing because of the dates)
unless disapproved by the Supreme Court. Facts: Respondent was charged with multiple
murder. He filed a motion with the trial court for
3. Nature and Function of Rule Making Power judicial determination of probable cause. On
For a more independent judiciary. The authority March 29, 1999, the trial court dismissed the
to promulgate rules concerning pleading, practice cases provisionally. On December 1, 2000, the
and admission to the practice of law is a traditional Revised Rules on Criminal Procedure took
power of the Supreme Court. The grant of this effect. Section 8 of Rule 117 allowed the revival
authority, coupled with its authority to integrate the of the case which was provisionally dismissed
Bar, to have administrative supervision over all only within two years. On June 6, 2001, the
courts, in effect places in the hands of Supreme criminal cases against respondent were refilled.
Respondent argued that the refilling of the cases
451 was barred. The prosecution argued that under

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Article 90 of the Revised Penal Code, it had

twenty years to prosecute respondent. Santero v. CFI, 153 SCRA 728
Held: Facts: During the pendency of the proceeding
Is the rule merely procedural? Yes, the rule is for the settlement of the estate of the deceased,
merely procedural. Section 8, Rule 117 is not a respondents, who were children of the
statute of limitations. The two-year bar under the deceased, filed a motion asking for an allowance
rule does not reduce the periods under Article 90 for their support. Petitioners, who were children
of the Revised Penal Code. It is but a limitation of the deceased with another woman, opposed
of the right of the State to revive a criminal case on the grounds that petitioners were already of
against the accused after the case had been majority age and under Section 3 of Rule 83, the
filed but subsequently provisionally dismissed allowance could be granted only to minor
with the express consent of the accused. Upon children.
the lapse of the period under the new rule, the Held: Article 188 of the Civil Code grants
State is presumed to have abandoned or waived children the right to support even beyond the age
its right to revive the case. The prescription of majority. Hence, the respondent were entitled
periods under the Revised Penal Code are not to the allowance. Since, the right to support
diminished. granted by the Civil Code is substantive, it
Is the refilling of cases barred in this case? cannot be impaired by Section 3, Rule 83 of the
No. A procedural law may not be applied Rules of Court.454
retroactively if to do so would work injustice or
would involve intricate problems of due process. Damasco v. Laqui, 166 SCRA 214
The time-bar of two years under the new rule Facts: Petitioner was charged with grave
should not be applied retroactively against the threats. The trial court convicted him of light
State. If the time-bar were to be applied threats. Petitioner moved for reconsideration
retroactively so as to commence to run on March because the crime of which he was convicted
31, 1999, when the prosecutor received his copy had already prescribed when the information was
of the resolution dismissing the cases, instead of filed.
giving the State two years to revive the Held: While an accused who fails to move to
provisionally dismissed cases, the State would quash is deemed to waive all objection which are
have considerably less than two years to do so. grounds to quash, this rule cannot apply to
The period before December 1, 2000 should be prescription. Prescription extinguishes criminal
excluded in the computation of the two-year liability. To apply the said rule will contravene
period, because the rule prescribing it was not Article 89 of the Revised Penal Code which is
yet in effect at that time and the State could not substantive. The rules promulgated by the
be expected to comply with it. 452 Supreme Court must not diminish, increase or
modify substantive rights.455
Illustrative cases where the rule deals with
substantive matter: Zaldivia v. Reyes, 211 SCRA 277
Facts:
PNB v. Asuncion, 80 SCRA 321 On May 30, 1990, a complaint was filed with the
Facts: Petitioner filed a collection case against provincial prosecutor against petitioner for
several solidary debtors. One of them died violating an ordinance by quarrying without a
during the pendency of the case. The court mayor’s permit. The information was filed in court
dismissed the case against all the defendants on on October 2, 1990. Petitioner moved to quash
the ground that the petitioner should file a claim on the ground that under Act 3326, violations of
in the estate proceedings. Petitioner argued that municipal ordinances prescribe in two months
the dismissal should be confined to the and the prescriptive period is suspended only
defendant who died. upon the institution of judicial proceedings. The
Held: Article 1216 of the Civil Code gives the prosecution argued that under Section 1, Rule
creditor the right to proceed against anyone of 110 of the Rules on Criminal Procedure, the filing
the solidary debtors or some or all of them of a case for preliminary investigation interrupts
simultaneously. Hence, in case of the death of the prescriptive period.
one of them, the creditor may proceed against Held: If there is a conflict between Act No. 3326
the surviving debtors. The Rules of Court cannot and Rule 110 of the Rules on Criminal
be interpreted to mean that the creditor has no Procedure, the former must prevail. Prescription
choice but to file a claim in the estate of the in criminal cases is a substantive right.456
deceased. Such construction will result in the
diminution of the substantive rights granted by
the Civil Code.453 454
452 455
Jacinto Jimenez, Political Law Compendium 344 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)
453 456
Jacinto Jimenez, Political Law Compendium, 342 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)

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Illustrative case where retroactive application disappearances or threats thereof.” (Note that
of a ruling will affect substantive right: not all constitutional rights are covered by this
Rule; only right to life, liberty and security)
LBP v. De Leon, 399 SCRA 376
Facts: The Supreme Court ruled that in Writ of Habeas Data. The writ of habeas data is a
accordance with Section 60 of the remedy available to any person whose right to
Comprehensive Agrarian Reform Law, appeals privacy in life, liberty or security is violated or
from the Special Agrarian Courts should be threatened by an unlawful act or omission of a
made by filing a petition for review instead of public official or employee, or of a private individual
merely filing a notice of appeal. Petitioner filed a or entity engaged in the gathering, collecting or
motion for reconsideration, in which it prayed that storing of data or information regarding the person,
the ruling be applied prospectively. family, home and correspondence of the aggrieved
Held: Before the case reached the Supreme party. (Section 1, The Rule on the Habeas Data)
Court, petitioner had no authoritative guideline
on how to appeal decision of Special Agrarian Writ of Kalikasan. The writ is a remedy available
Courts in the light of seemingly conflicting to a natural or juridical person, entity authorized
provisions of Section 60 and 61 of the by law, people’s organization, non-governmental
Comprehensive Agrarian Reform Law, because organization, or any public interest group
Section 61 provided that review shall be accredited by or registered with any government
governed by the Rules of Court. The Court of agency, on behalf of persons whose
Appeals had rendered conflicting decisions on constitutional right to a balanced and healthful
this precise issue. Hence, the decision of the ecology is violated, or threatened with violation
Supreme Court should be applied prospectively by an unlawful act or omission of a public official or
because it affects substantive right. If the ruling employee, or private individual or entity, involving
is given retroactive application, it will prejudice environmental damage of such magnitude as to
the right of appeal of petitioner because its prejudice the life, health or property of inhabitants
pending appeals in the Court of Appeals will be in two or more cities or provinces. (Rule 7, Rule of
dismissed on a mere technicality thereby, Procedure in Environmental Cases)
sacrificing their substantial merits.457
5. Rules Concerning the protection and

See Internal Rules of the Surpeme Court A.M.
enforcement of constitutional rights; Rules
Concerning pleading, practice and procedure in
10-4-20-SC
courts
In Re: Request for Creation of Special Division,
Power to Make Rules; Writ of Amparo. A.M. No. 02-1-07-SC (2002): It was held that it is
The Rules on the Writ of Amparo is promulgated by within the competence of the Supreme Court, in the
the Court based on its power to promulgate rules exercise of its power to promulgate rules governing
for the protection and enforcement of constitutional the enforcement and protection of constitutional
rights. In light of the prevalence of extra legal killing rights and rules governing pleading, practice and
and enforced disappearances, the Supreme Court procedure in all courts, to create a Special Division
resolved to exercise for the first time its power to in the Sandiganbayan which will hear and decide
promulgate rules to protect our people’s the plunder case of Joseph Estrada.
constitutional rights.
Regulation of Demonstrations
Writ of Amparo (1991 Bar Question) Facts: Petitioner applied for a permit to hold a rally
a. Etymology. “Amparo” comes from in from of the Justice Hall to protest the delay in the
Spanish verb “amparar” meaning “to protect. disposition of the cases of his clients. The mayor
refused to issue the permit on the ground that it
b. Nature: A writ to protect right to life, liberty was prohibited by the Resolution of the Supreme
and security of persons. Court dated July 7, 1998, which prohibited rallies
within two hundred meters of any court building.
c. Section 1 of The Rule on the Writ of Petitioners argued that the Resolution amended
Amparo: “The petition for a writ of amparo is a the Public Assembly Act in violation of the
remedy available to any person whose right to separation of powers.
life, liberty and security is violated or Held: The existence of the Public Assembly Act
threatened with violation by unlawful act or does not preclude the Supreme Court from
omission of a public official or employee, or of promulgating rules regulating the conduct of
a private individual or entity. The writ shall demonstration in the vicinity of courts to assure the
cover extralegal killings and enforced people of an impartial and orderly administration of
457

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justice as mandate by the Constitution. (In re Bar Flunkers Act. After the Supreme Court has
Valmonte, 296 SCRA xi) declared candidates for the bar as having flunked
the examinations, Congress may not pass a law
Requirement of International Agreement lowering the passing mark and declaring the same
Facts: The Philippines signed the Agreement candidates as having passed. This would amount
establishing the World Trade Organization. The to not just amending the rules but reversing the
Senate passed a resolution concurring in its Court’s application of an existing rule. (In re
ratification by the President. Cunanan , 94 phil 534 (1954))
Petitioners argued that Article 34 of the General
Provisions and Basic Principles of the Agreement Nullification of Bar Results. In 2003, the Court
on Trade-Related Aspects of Intellectual Property nullified the results of the exams on Commercial
Rights is unconstitutional. Article 34 requires Law when it was discovered that the Bar questions
members to create a disputable presumption in had been leaked. (Bar matter No. 1222, 2004)
civil proceedings that a product shown to be
identical to one produced with the use of a Parliamentary Freedom of Speech v SC’s Power
patented process shall be deemed to have been to Discipline
obtained by illegal use of the patented process if Facts: Senator Miriam Defensor-Santiago made
the product obtained by the patented process is this speech on the Senate floor. “x x x I am not
new or there is a substantial likelihood that the angry. I am irate. I am foaming in the mouth. I am
identical product was made with the use of the homicidal. I am suicidal. I am humiliated, debased,
patented process but the owner of the patent could degraded. And I am not only that, I feel like
not determine the exact process used in obtaining throwing up to be living my middle years in a
the identical product. Petitioners argued that this country of this nature. I am nauseated. I spit on the
impaired the rule-making power of the Supreme face of Chief Justice Artemio Panganiban and his
Court. cohorts in the Supreme Court, I am no longer
Held: Article 34 should present no problem. interested in the position [of Chief Justice] if I was
Section 60 of the Patent Law provides a similar to be surrounded by idiots. I would rather be in
presumption in cases of infringement of a patented another environment but not in the Supreme Court
design or utility model. Article 34 does not contain of idiots x x x. “ Pobre asks that disbarment
an unreasonable burden as it is consistent with due proceedings or other disciplinary actions be taken
process and the adversarial system. Since the against the lady senator.
Philippines is signatory to most international
conventions on patents, trademarks and Issue: May Senator Santiago be disbarred or be
copyrights, the adjustment in the rules of imposed with disciplinary sanction for her
procedure will not be substantial. (Tanada v. intemperate and highly improper speech made on
Angara, 272 SCRA 18)458 the senate floor?
Power to Suspend Its Own Rules. Section 5(5) of Held: No. A lawyer-senator who has crossed the
the Constitution gives this Court the power to limits of decency and good professional conduct by
"[p]romulgate rules concerning the protection and giving statements which were intemperate and
enforcement of constitutional rights, pleading, highly improper in substance may not be disbarred
practice and procedure in all courts." This includes or be imposed with disciplinary sanctions by the
an inherent power to suspend its own rules in Supreme Court.
particular cases in order to do justice.459
It is true that parliamentary immunity must not be
6. Admission to the Practice of Law allowed to be used as a vehicle to ridicule,
Rule on Conduct of Officials. Section 90 of the demean, and destroy the reputation of the Court
Local Government Code which prohibits lawyers and its magistrates, nor as armor for personal
who are members of a local legislative body to wrath and disgust. However, courts do not interfere
practice law is not an infringement on the power of with the legislature or its members in the manner
the Court to provide for rules for the practice of law. they perform their functions in the legislative floor
The law must be seen not as a rule on practice of or in committee rooms. Any claim of an unworthy
law but as a rule on the conduct of officials purpose or of the falsity and mala fides of the
intended to prevent conflict of interest. (Javellana v. statement uttered by the member of the Congress
DILG, 1992) does not destroy the privilege. The disciplinary
authority of the assembly and the voters, not the
courts, can properly discourage or correct such
abuses committed in the name of parliamentary
458 immunity. (Pobre v. Defensor-Santiago, 2009)
459
Lim et al v CA, G.R. No. 149748, November 16,
2006.

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(See Estrada v. Sandiganbayan, GR No. 159486: exempt. This means that the compulsory nature of
Suspension of Atty. Allan Paguia) payment of dues subsists as long as one’s
membership in the IBP remains regardless of the
7. Integration of the Bar lack of practice of, or the type of practice, the
a. Bar - refers to the collectivity of all persons member is engaged in.460
whose names appear in the Roll of Attorneys.
8. Congress and the Rules of Court
b. Integration of the Philippine Bar - means the Bernas Primer: Rules issued by the Supreme
official unification of the entire lawyer population of Court may be repealed, altered, or supplemented
the Philippines. This requires membership and by Congress because Congress has plenary
financial support (in reasonable amount) of every legislative power. The silence of the Constitution on
attorney as conditions sine qua non to the practice the subject can only be interpreted as meaning that
of law and the retention of his name in the Roll of there is no intention to diminish that plenary power.
Attorneys of the Supreme Court. (In re Integration In fact, RA 8974 which requires full payment before
of the Bar of the Philippines) the sate may exercise proprietary rights, contrary to
Rule 67 which requires a deposit, was recognized
c. Purpose of an integrated Bar, in general are: by Court in Republic v. Gingoyon, 2005. (An earlier
1. Assist in the administration of justice; obiter dictum in Echegaray v. Sec. of Justice,
2. Foster and maintain, on the part of its 1999, said that Congress has no power to amend
members, high ideals of integrity, learning, Rules. This was repeated by Puno and Carpio in
professional competence, public service and
dissent in Republic v. Gingoyon)461
conduct;
3. Safeguard the professional interests of its
members; Nachura (2006): Congress cannot amend the
4. Cultivate among its members a spirit of Rules of Court. “The 1987 Constitution took away
cordiality and brotherhood; the power of Congress to repeal, alter or
5. Provide a forum for the discussion of law, supplement rules concerning pleading and
jurisprudence, law reform, pleading, practice, procedure. In fine, the power to promulgate rules of
and procedure, and the relation of the Bar to pleading, practice and procedure is no longer
the Bench and to the public, and public relation
shared by this Court with Congress, more so with
relating thereto;
6. Encourage and foster legal education; the Executive.” Echagaray v. Secretary of Justice
7. Promote a continuing program of legal research (1999)
in substantive and adjective law, and make
reports and recommendations thereon; and ASM: Follow Bernas’ view. Article XVIII, Section 10
8. Enable the Bar to discharge its public provides: “The provisions of the existing Rules of
responsibility effectively (In re Integration of the Court, judiciary acts, and procedural laws not
Bar of the Philippines) inconsistent with this Constitution shall remain
operative unless amended or repealed by the
d. In re: Atty. Marcial Edillon. In this case, Atty. Supreme Court or the Congress”
Edillon objects to the requirement of membership in
the integrated bar as a pre-condition to the practice H. Appointment of Court Personnel
of law. This gave the Court the opportunity to
ventilate some basic notions underlying bar The authority of the Supreme Court to appoint its
integration. own official and employees is another measure
1. The practice of law is a privilege that is intended to safeguard the independence of the
subject to reasonable regulation by the Judiciary. However, the Court’s appointing
State; authority must be exercised “in accordance with the
2. Bar integration is mandated by the Civil Service Law.”462
Constitution;
3. The lawyer is not being compelled to join Note that Section 5(6) empowers the Supreme
the association. Passing the bar Court not only to appoint its own officials and
examination already made him a member employees but of the Judiciary itself.
of the bar. The only compulsion to which
he is subjected is the payment of annual It should also be recalled that courts may be given
dues, and this is justified by the need for authority by Congress “to appoint officers lower in
elevating the quality of legal profession; rank.” (art. 7 §16)
4. The Constitution vests in the SC plenary
powers regarding admission to the bar.
460
Letter of Atty. Cecilio Y. Arevalo, Requesting Exemptions from
e. Letter of Atty Arevalo, 2005. Payment of dues Payment of IBP Dues, May 9, 2005.
461
is a necessary consequence of membership in the Bernas Primer at 352 (2006 ed.)
Integrated Bar of the Philippines, of which no one is 462

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I. Administrative Supervision of Courts to discharge the duties of their office. The Supreme Court
en banc shall have the power of discipline judges of lower
Strengthens Independence. Section 6 provides courts, or order their dismissal by a vote of a majority of
the Members who actually took part in the deliberations
that the Supreme Court shall have administrative
on the issues in the case and voted thereon.
supervision by the Supreme Court over all lower
courts and the personnel thereof. It is a significant
innovation towards strengthening the 1. Power to Discipline
independence of the judiciary. Before 1973 The power of the Supreme Court to discipline
Constitution, there was no constitutional provision judges of inferior courts or to order their dismissal
on the subject and administrative supervision over is exclusive. It may not be vested in any other
the lower courts and their personnel was exercised body. Nor may Congress pass a law that judges of
by the Secretary of Justice.463 The previous set-up lower courts are removable by impeachment.466
impaired the independence of judges who tended
to defer to the pressures and suggestions of the 2. Disciplinary Actions
executive department in exchange for favorable
action on their requests and administrative Besides removal, such other disciplinary measures
problems.464 as suspension, fine and reprimand can be meted
out by the Supreme Court on erring judges.467
Exclusive Supervision. Article VIII, Section 6
exclusively vests in the Supreme Court 3. Requirement for Disciplinary Actions
administrative supervision over all courts and court Disciplinary Action Decision
personnel, from the Presiding Justice of the Court Dismissal of judges, Decision en banc (by
of Appeals down to the lowest municipal trial court Disbarment of a a vote of a majority of
clerk. By virtue of this power, it is only the Supreme lawyer, suspension the members who
Court that can oversee the judges’ and court of either for more actually took part in
personnel’s compliance with all laws, and take than 1 year or a fine the deliberations on
proper administrative action against them if they exceeding 10,000 the issues in the case
commit any violation thereof. No other branch of pesos (People v. and voted thereon)
government may intrude into this power, without Gacott)]
running afoul to the doctrine of separation of
powers. (Maceda v. Vasquez) Other disciplinary Decision of a division
actions is sufficient (People v.
Ombudsman and SC’s Power of Supervision. Gacott)
The Ombudsman may not initiate or investigate a
criminal or administrative complaint before his 4. SC Determines what “good behavior” is.
office against a judge; the Ombudsman must first Judges of lower courts shall hold office during good
indorse the case to the Supreme Court for behavior until they reach the age of seventy years or
appropriate action. (Fuentes v. Office of become incapacitated to discharge the duties of their
Ombudsman, 2001) office.
It is submitted that the Supreme Court alone can
Administrative Proceeding, Confidential. determine what good behavior is, since the SC
Administrative proceedings before the Supreme alone can order their dismissal.468
Court are confidential in nature in order to protect
the respondent therein who may turn out to be 5. SC Determines whether a judge has become
innocent of the charges. (Godinez v. Alano, 1999) incapacitated
The power to determine incapacity is part of the
According to Bernas, the power of administrative overall administrative power which the Supreme
supervision of the Supreme Court, includes the Court has over its members and over all the
power [sitting en banc] to discipline judges of lower members of the judiciary.469
courts, or order their dismissal.465
K. Contempt Powers
J. Disciplinary Powers
One of the essential powers of every court under
Section 11 our system of government is that of punishing for
The Members of the Supreme Court and judges of lower contempt persons who are guilty of disobedience
courts shall hold office during good behavior until they
reach the age of seventy years or become incapacitated
466
463 467
464 468
Cruz, Philippine Political Law, p. 264 (1995 ed). Bernas Commentary, p 987(2003 ed).
465 469
Bernas Commentary, p 979 (2003 ed). Bernas Commentary, p 988(2003 ed).

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to its orders or for disrespect to its authority. The granted by Section 5(2), (a) and (b).474 Judicial
punishment is either imprisonment or fine.470 Review is an aspect of Judicial Power.475
“While it is sparingly to be used, yet the power of Theory of Judicial Review. The Constitution is the
courts to punish for contempts is a necessary and supreme law. It was ordained by the people, the
integral part of the independence of judiciary, and ultimate source of all political authority. It confers
is absolutely essential to the performance of the limited powers on the national government. x x x If
duties imposed on them by law. Without it they are the government consciously or unconsciously
mere boards of arbitration, whose judgments and oversteps these limitations there must be some
decrees would only be advisory.”471 authority competent to hold it in control, to thwart
its unconstitutional attempt, and thus to vindicate
L. Annual Report and preserve inviolate the will of the people as
Section 16. The Supreme Court shall, within thirty days expressed in the Constitution. This power the
from the opening of each regular session of the courts exercise. This is the beginning and the end
Congress, submit to the President and the Congress an of the theory of judicial review.476
annual report on the operations and activities of the
Judiciary Judicial Review in Philippine Constitution.
Unlike the US Constitution477 which does not
The purpose of this provision is not to subject the provide for the exercise of judicial review by their
Court to the President and to the Congress but Supreme Court, the Philippine Constitution
simply to enable the judiciary to inform government expressly recognizes judicial review in Section
about its needs. (I RECORD 510-512)472 5(2) (a) and (b) of Article VIII of the Constitution.
The annual report required under this provision can

be the basis of appropriate legislation and B. Principle of Constitutional Supremacy
government policies intended to improve the
administration of justice and strengthen the Judicial review is not an assertion of superiority by
independence of judiciary.473 the courts over the other departments, but merely
an expression of the supremacy of the
VI. Judicial Review Constitution.478 Constitutional supremacy produced
judicial review, which in turn led to the accepted
Definition of Judicial Review
role of the Court as “the ultimate interpreter of the
Constitutional Supremacy
Constitution.”479
Functions of Judicial Review
Who May Exercise
C. Functions of Judicial Review
Requisites of Judicial Review
Political Questions 1. Checking- invalidating a law or executive
Effect of Declaration of Unconstitutionality act that is found to be contrary to the
Partial Unconstitutionality Constitution.
Judicial Review by Lower Courts 2. Legitimating- upholding the validity of the
Modalities of Constitutional Interpretation law.
Rule on the Double Negative- Uses the
A. Definition term “not unconstitutional”; the court
cannot declare a law constitutional
Judicial review is the power of the courts to test the
validity of governmental acts in light of their
conformity to a higher norm (e.g. the constitution.) 474
–asm 475
476
The power of judicial review is the Supreme Court’s Howard L. MacBain, "Some Aspects of Judicial Review," Bacon
power to declare a law, treaty, international or Lectures on the Constitution of the United States (Boston: Boston
executive agreement, presidential decree, University Heffernan Press, 1939), pp. 376-77 cited in David v.
Arroyo.
proclamation, order, instruction, ordinance, or 477
regulation unconstitutional. This power is explicitly The case of Marbury v. Madison established the doctrine of
judicial review as a core legal principle in American constitutional
system: “So if a law be in opposition to the constitution; of both the
law and the constitution apply to a particular case, so that the court
must either decide that case conformably to the law, disregarding the
470 constitution; or conformably to the constitution, disregarding the law;
471 the court must determine which of these conflicting rules governs the
Gompers v. Buck’s Stove and Range co., 221 US 418. case. This is the very essence of judicial duty.”
472
Angara v. Electoral Commission, 63 Phil 139.
473 479
Cruz, Philippine Political Law, p. 277 (1995 ed). See Cooper v. Aaron, 358 US 1 (1956)

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because it already enjoys a presumption of 3. A request for advisory opinion.483

constitutionality
3. Symbolic480- to educate the bench and
4. Hypothetical or feigned constitutional
problems
the bar as the controlling principles and
concepts on matters of great public 5. Friendly suits collusively arranged
importance. between parties without real adverse
interests484
In a Separate Opinion in Francisco v. HR, Mr.
Justice Adolf Azcuna remarked: Moot Case. A moot case is one that ceases to
“The function of the Court is a necessary element present a justiciable controversy by virtue of
not only of the system of checks and balances, but supervening events, so that a declaration
also of a workable and living Constitution. For thereon would be of no practical use or value.
absent an agency, or organ that can rule, with Generally, courts decline jurisdiction over such
finality, as to what the terms of the Constitution case or dismiss it on ground of mootness.
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…” However, Courts will decide cases, otherwise
moot and academic, if:
D. Who May Exercise 1. There is a grave violation of the
1. Supreme Court Constitution;
2. Inferior Courts 2. The exceptional character of the
situation and the paramount public
E. Requisites of Judicial Inquiry/Judicial Review interest is involved
(1994 Bar Question)
3. When the constitutional issue raised
Essential Requisites (APEN) requires formulation of controlling
1. There must be an actual case or principles to guide the bench, the bar, and
controversy; The question involved must be the public; and
ripe for adjudication. 4. The case is capable of repetition yet
2. The question of constitutionality must be evading review. (Province of Batangas vs.
raised by the proper party; Romulo, 429 SCRA 736; David v. Arroyo
Auxiliary Rules (2006) Quizon v. Comelec, G.R. No.
3. The constitutional question must be raised 177927, February 15, 2008; Province of
at the earliest possible opportunity; North Cotabato v GRP)
4. The decision of the constitutional question The requirement of actual controversy
must be necessary to the determination of the encompasses concepts such as ripeness,
case itself. standing, and the prohibition against advisory
(Read the case of Francisco v. HR and David v. judicial rulings (BP Chemicals v. UCC, 4 F.3d
Arroyo in the original) 975)
1. Actual Case Ripeness Doctrine. The requirement that a
case be ripe for judgment before a court will
Actual Case or controversy involves a conflict decide the controversy. Ripeness refers to
of legal rights, an assertion of opposite legal readiness for adjudication,
claims susceptible of judicial determination.481
Rationale. To prevent the courts, through
The case must not be: premature adjudication, from entangling
1. Moot or academic or themselves in abstract disagreements.
2. Based on extra-legal or other similar
consideration not cognizable by When Not Ripe. A claim is not ripe for
courts of justice.482 adjudication if it rests upon contingent future
events that may not occur as anticipated, or
indeed may not occur at all.485
480
“The Court also has the duty to formulate guiding and Ripeness and Standing.
controlling constitutional principles, precepts, doctrines, or
A simple description of the requirements of
rules. It has the symbolic function of educating bench and bar
on the extent of protection given by constitutional guarantees.” standing and ripeness is found in the words of
(Salonga v. Pano, 134 SCRA 438, 1985) 483
481 Cruz, Philippine Political Law, p. 242 (1995 ed).
482 Bernas Commentary, p 938(2003 ed).
Cruz, Philippine Political Law, p. 241 (1995 ed); See Cawaling v.
485
COMELEC, 368 SCRA 453) Texas v. United States, 523 U.S. 296, 300 (1998).

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Justice Stone in Nashville v. Wallace. In that 3. Redressability: A favorable action

opinion he referred to: “valuable legal rights… will likely redress the injury.
threatened with imminent invasion.” The (Francisco v. Fernando GR 166501,
valuable legal rights constitute the standing 2006)
and the threat of imminent invasion
constitute the ripeness.486 In a public suit, where the plaintiff asserts a
public right in assailing an allegedly illegal
2. Standing/Proper Party (1992, 1995 Bar official action, our Court adopted the “direct
Question) injury test” in our jurisdiction. (David v. Arroyo)
Proper Party- A proper party is one who has
sustained or is in immediate danger of Direct Injury Test: The persons who impugn
sustaining an injury in result of the act the validity of a statute must have a ”personal
complained of.487 and substantial interest in the case such
that he has sustained or will sustain, direct
Locus Standi refers to the right of injury as a result. (David v. Arroyo) (See
appearance in a court of justice on a given People v. Vera, 65 Phil 58, 89 (1937)).
question. (Black)
By way of summary, the following rules may
General Rule: be culled from the cases decided by the
Direct Interest Test: The persons who Supreme Court. Taxpayers, voters, concerned
impugn the validity of a statute must have a citizens, and legislators may be accorded
”personal and substantial interest in the case standing to sue, provided that the following
such that he has sustained or will sustain, requirements are met:
direct injury as a result. 1. the cases involve constitutional issues
Exceptions:
2. for taxpayers, there must be a claim of
1. Cases of transcendental importance illegal disbursement of public funds or that
or of paramount public interest or the tax measure is unconstitutional;
involving an issue of overarching
significance.
3. for voters, there must be a showing of
obvious interest in the validity of the
2. Cases of Proclamation of martial law election law in question;
and suspension of the privilege of the
writ of habeas corpus where any
4. for concerned citizens, there must be a
showing that the issues raised are of
citizen may challenge the
transcendental importance which must be
proclamation of suspension. (art.7
settled early;
§18)
3. The right to information on matters of 5. for legislators, there must be a claim that
public concern and the right to access the official action complained of infringes
to public documents has been upon their prerogatives as legislators
recognized as accruing to mere [David v. Arroyo G.R. No. 171396
citizenship. (Legaspi v. CSC, 150 (2006)]
SCRA 530 (1987)
4. Facial Challenge (?) Illustrative Cases showing existence of
standing:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Facts: Petitioners filed a case as taxpayers
REQUISITES of standing: questioning the validity of the contract between
DOTC and respondent by virtue of which respondent
A citizen can raise a constitutional question agreed to build and lease to the DOTC a light
only when: railway transit system. Respondent claimed that
1. Injury: He can show that he has petitioners had no standing to file the action.
personally suffered some actual or Held: Taxpayers may file action questioning
threatened injury because of the contracts entered into by government on the ground
that the contract is in contravention of the law.
allegedly illegal conduct of the (Tatad v. Garcia, 243 SCRA 436)488
government;
2. Causation: The injury is fairly Facts: Petitioners who were Filipino citizens and
traceable to the challenged action; taxpayers, questioned the constitutionality of the
and IPRA on the ground that it deprived the State of
ownership over lands of the public domain and the
natural resources in them in violation of Section 2,
486
Jerre S. Williams, Constitutional Analysis 16, (1979). Article XII of the Constitution.
487
Ex Parte Levitt, 303 US 633; People v. Vera 65 Phil 58, 89
488
(1937). Jacinto Jimenez, Political Law Compendium, 333 (2006 ed.)

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Held: As, citizens, petitioners possess the public any right to question their dispositions. (Joya v.
right to ensure that the national patrimony is not PCGG, 225 SCRA 586)491
alienated and diminished in violation of the
Constitution. Since the government holds it for the Facts: Petitioner filed a petition in his capacity as a
benefit of the Filipinos, a citizen had sufficient taxpayer questioning the constitutionality of the
interest to maintain a suit to ensure that any grant of creation of 70 positions for presidential advisers on
concession covering the national patrimony strictly the ground that the President did not have the power
complies with the constitutional requirements. to create these positions.
In addition, the IPRA appropriate funds. Thus, it is a Held: Petitioner has not proven that he has
valid subject of a taxpayer’s suit. (Cruz v. Secretary sustained any injury as a result of the appointment
of Environment and Natural Resources, 347 SCRA of the presidential advisers. (Gonzales v. Narvasa,
128)489 337 SCRA 437)492
Facts: Petitioner, a senator, questioned the Facts: In view of the increase in violent crimes in
constitutionality of Administrative Order No. 308 Metropolitan Manila, the President ordered the PNP
which provided for the establishment of a national and the Philippine Marines to conduct joint visibility
computerized identification reference system. patrols for the purpose of crime prevention and
Petitioner contends that the AO usurps legislative suppression. Invoking its responsibility to uphold the
power. The government questioned his standing to rule of law, the Integrated Bar of the Philippines
file the case. questioned the validity of the order.
Held: As a senator, petitioner is possessed of the Held: the mere invocation of the IBP of the
requisite standing to bring suit raisin the issue that Philippines of its duty to preserve the rule of law is
the issuance of AO 308 is a usurpation of legislative not sufficient to clothe it with standing in this case.
power. (Ople v. Torres, 293 SCRA 141)490 This is too general an interest which is shared by the
whole citizenry. The IBP has not shown any specific
Facts: Petitioners, who are minors, filed a case to injury it has suffered or may suffer by virtue of the
compel the Secretary of Environment and Natural questioned order. The IBP projects as injurious the
Resources to cancel the timber license agreements militarization of law enforcement which might
and to desist from issuing new ones on the ground threaten democratic institutions. The presumed
that deforestation has resulted in damage to the injury is highly speculative. (IBP v. Zamora, 338
environment. The Secretary of argued that SCRA 81)493
petitioners has no cause of action.
Held: SC said that Petitioners have a right to a xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
sound environment, this is incorporated in Section
16 of Article II. Transcendental Importance Being a mere
SC also said that Petitioners have personality to sue procedural technicality, the requirement of
based on the concept of intergenerational locus standi may be waived by the Court in the
responsibility insofar as the right to a balanced and
exercise of its discretion. Thus, the Court has
healthful ecology is concerned. “We find no difficulty
in ruling that they can, for themselves, for others of adopted a rule that even where the petitioners
their generation and for the succeeding generation. have failed to show direct injury, they have
Their personality to sue in behalf of the succeeding been allowed to sue under the principle of
generations can only be based on the concept of "transcendental importance." [David v.
intergenerational responsibility insofar as the right to Arroyo G.R. No. 171396 (2006)]
a balanced ecology is concerned.” (Oposa v.
Factoran, 1993) When an Issue Considered of
Transcendental Importance:
Illustrative Cases showing absence of
An issue is of transcendental importance
standing:
because of the following:
Facts: Upon authorization of the President, the (1) the character of the funds or other
PCGG ordered the sale at public auction of paintings assets involved in the case;
by old masters and silverware alleged to be illgotten (2) the presence of a clear disregard of a
wealth of former President Marcos, his relatives, and constitutional or statutory prohibition by an
friends. Petitioners, who were Filipino citizens,
instrumentality of the government; and
taxpayers, and artist, filed a petition to restrain the
auction. (3) the lack of any other party with a
Held: Petitioners have no standing to restrain the more direct and specific interest in raising
public auction. The paintings were donated by the question. (Francisco vs. House of
private persons to the MMA who owns them. The Representatives, 415 SCRA 44; Senate v.
pieces of silverware were given to the Marcos
Ermita G.R. No. 169777 (2006))
couple as gifts on their silver wedding anniversary.
Since the petitioners are not the owners of the
paintings and the silverware, they do not possess
491
489 492
490 493

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Facial Challenge494. may be raised at any stage if it

The established rule is that a party can involves jurisdiction of the court.497
question the validity of a statute only if, as
applied to him, it is unconstitutional. The 4. Necessity/ Lis Mota
exception is the so-called “facial challenge.”
But the only time a facial challenge to a statute Rule: The Court will not touch the issue of
is allowed is when it operates in the area of unconstitutionality unless it really is
freedom of expression. In such instance, the unavoidable or is the very lis mota.498
“overbreadth doctrine” permits a party to
challenge to a statute even though, as applied Reason: The reason why courts will as much
to him, it is not unconstitutional, but it might be as possible avoid the decision of a
if applied to others not before the Court whose constitutional question can be traced to the
activities are constitutionally protected. doctrine of separation of powers which enjoins
Invalidation of the statute “on its face”, rather upon each department a proper respect for the
than “as applied”, is permitted in the interest of acts of the other departments. The theory is
preventing a “chilling effect” on freedom of that, as the joint act of the legislative and
expression (Justice Mendoza’s concurring executive authorities, a law is supposed to
opinion in Cruz v. DENR, G.R. No. 135395, have been carefully studied and determined to
December 06, 2000) A facial challenge to a be constitutional before it was finally enacted.
legislative act is the most difficult challenge to Hence, as long as there is some other basis
mount successfully since the challenge must that can be used by the courts for its decision,
establish that no set of circumstances exists the constitutionality of the challenged law will
under which the act would be valid. (Estrada v. not be touched and the case will be decided
Sandiganbayan, G.R. No. 148560, November on other available grounds.499
19, 2001)495
Motu Propio Exercise of Judicial Review.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx While courts will not ordinarily pass upon
constitutional questions which are not raised in
Bernas: In sum, it may be said that the the pleadings, a court is not precluded from
concept of locus standi as it exists in Philippine inquiring into its own jurisdiction or be
jurisprudence now has departed from the compelled to enter a judgment that it lacks
rigorous American concept.496 jurisdiction to enter. Since a court may
determine whether or not it has jurisdiction, it
3. Earliest Opportunity necessarily follows that it can inquire into the
constitutionality of a statute on which its
General Rule: Constitutional question must be jurisdiction depends. (Fabian v. Desierto, 295
raised at the earliest possible opportunity, SCRA 470)500
such that if it is not raised in the pleadings, it
cannot be considered at the trial, and, if not Read Province of North Cotabato v. GRP for
considered in trial, cannot be considered on mootness and ripeness.
appeal.
F. Political Questions (1995 Bar Question)
Exceptions: Justiciable v. Political Question
1. In criminal cases, the constitutional Definition of Political Question
question can be raised at any time in Guidelines (Baker v. Carr)
the discretion of the court. Justiciable v. Political
2. In civil cases, the constitutional Suspension of Writ and Proclamation of ML
question can be raised at any stage if Calling Our Power of the President
it is necessary to the determination of Impeachment of a Supreme Court Justice
the case itself.
3. In every case, except where there is 1. Justiciable v. Political Questions
estoppel, the constitutional question The distinction between justiciable and political
questions can perhaps best be illustrated by the
suspension or expulsion of a member of Congress,
which must be based upon the ground of
494
Facial Challenge is a manner of challenging a statute in court, in
which the plaintiff alleges that the statute is always, and under all 497
circumstances, unconstitutional, and therefore void. 498
495
Antonio B. Nachura, Outline/Reviewer in Political Law 23 (2006 Bernas Commentary, p 952(2003 ed).
499
ed.) Cruz, Philippine Political Law, p. 247 (1995 ed).
496 500
Bernas Commentary, p 949(2003 ed). Jacinto Jimenez, Political Law Compendium, 330 (2006 ed.)

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“disorderly behavior” and concurred in by at least 6. Potentiality of embarrassment from

2/3 of all his colleagues. The determination of what multifarious pronouncements by various
constitutes disorderly behavior is a political departments. (Baker v. Carr, 369 US 186
question and therefore not cognizable by the court; (1962)
but the disciplinary measure may nonetheless be (Bernas submits that the Grave Abuse Clause
disauthorized if it was supported by less than the has eliminated the prudential type of political
required vote. The latter issue, dealing as it does questions from Philippine jurisprudence.504
with a procedural rule the interpretation of which Hence, the question is not political even there
calls only for mathematical computation, is a is an “unusual need for questioning adherence
justiciable question.501 to a political decision already made; or the
potentiality of embarrassment from
2. Political Questions, Definition multifarious pronouncements by various
departments on one question.”505)
Political questions are those questions which under
the Constitution are: Examples of Textual Kind506:
1. To be decided by the people in their 1. Alejandrino v. Quezon 26 Phil 83 (1924)
sovereign capacity, or : The SC through Justice Malcolm held,
2. In regard to which full discretionary “Mandamus will not lie agasint the legislative
authority has been delegated to the body, its members, or its officers, to compel
legislative or executive branch of the the performance of duties purely legislative in
government.502 (Tanada v. Cuenco, 1965) their character which therefore pertain to their
legislative functions and over which they have
Political questions connotes “questions of policy.” exclusive control.”
It is concerned with issues dependent upon the 2. Osmena v. Pendatun 109 Phil 863
wisdom, not legality, of a particular measure. (1960): The SC refused to interpose itself in
(Tanada v. Cuenco) the matter of suspension of Osmena Jr., for a
speech delivered on the floor of Congress.
3. Guidelines for determining whether a Whether he committed “disorderly behavior”
question is political. was something in regard to which full
Textual Kind discretionary authority had been given to the
1. A textually demonstrable constitutional legislature.
commitment of the issue to a political 3. Arroyo v. De Venecia, 1997: The issue in
department; this case was whether the Court could
Functional Kind intervene in a case where the House of
2. Lack of judicially discoverable and Representatives was said to have disregarded
manageable standards for resolving it; its own rule. The Court said it could not
because the matter of formulating rules have
3. Impossibility of deciding a case been textually conferred by the Constitution on
without an initial determination of a Congress itself. Hence, provided that no
kind clearly for non-judicial discretion; violation of a constitutional provisions or injury
(Baker v. Carr, 369 US 186 (1962))503 to private rights was involved, the Court was
Prudential Type without authority to intervene.
4. Impossibility of a court’s undertaking
4. Santiago v. Guingona, 1998: Disspute
independent resolution without expressing
involved is the selection of a Senate Minority
lack of the respect due coordinate
leader whose position is not created by the
branches of the government;
Constitution but by Congressional rules.
5. An unusual need for unquestioning
adherence to a political decision already
Examples of Functional Kind507:
made;
1. Tobias v. Abalos, 1994; Mariano v.
501 COMELEC, 1995” Apportionment of
Cruz, Philippine Political Law, p. 78(1995 ed).
502 representative districts is not a political
Cruz: Where the matter falls under the discretion of another
question because there acre constitutional
department or especially the people themselves, the decision reached
rules governing apportionment.
is in the category of a political question and consequently may not be
the subject of judicial review. 2. Daza v. Singson, 1989; Coseteng v.
Accordingly, considerations affecting the wisdom, efficacy or Mitra, 1990; Guingona v. Gonzales, 1992:
practicability of a law should come under the exclusive jurisdiction
of Congress. So too, is the interpretation of certain provisions of the 504
See Bernas Commentary, p 959 (2003 ed)
Constitution, such as the phrase “other high crimes” as ground for 505
impeachment. 506
503
Bernas Commentary, p 959(2003 ed); Bernas Primer at 348 (2006 Bernas Commentary, p 954(2003 ed).
507
ed.) Bernas Commentary, p 957(2003 ed).

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The Court intervened in the manner of forming Facts: On June 2, 2003, former President Joseph
the Commission on Appointments. Estrada filed an impeachment cases against the Chief
Justice and seven Associate Justices of the Supreme
3. Bondoc v. Pineda: The Court invalidated Court . The complaint was endorsed by three
the expulsion of a member of the House congressmen and referred to the Committee on Justice of
Electoral Tribunal. the House of Representatives. On October 22, 2003, the
(All these were done by the Court because it found Committee on Justice voted to dismiss the complaint for
applicable legal standards.) being insufficient in substance. The Committee on Justice
had not yet submitted its report to the House of
Representatives.
4. Grave Abuse Clause and Political Questions
On October 23, 2003, two congressmen filed a complaint
a complaint for impeachment against the Chief Justice in
Again, the ‘broadened concept’ of judicial power is connection with the disbursement against the Chief
not meant to do away with the political questions Justice in connection with the disbursement of the
doctrine itself. The concept must sometimes yield Judiciary Development Fund. The complaint was
to separation of powers, to the doctrine on “political accompanied by a resolution of
questions” or to the “enrolled bill” rule.508 (1995 Bar endorsement/impeachment was accompanied by a
resolution of endorsement/impeachment signed by at
Question) least one-third of the congressmen.
Several petitions were filed to prevent further proceedings
5. Suspension of the Writ of HC and tin the impeachment case on the ground that the
Proclamation of Martial Law Constitution prohibits the initiation of an impeachment
The action of the President and the Congress shall proceeding against the same official more than once the
be subject to review by the Supreme Court which same period of one year. Petitioners plead for the SC
shall have the authority to determine the sufficiency to exercise the power of judicial review to determine
the validity of the second impeachment complaint.
of the factual basis of such action. This matter is no
longer considered a political question.509 The House of Representatives contend that
impeachment is a political action and is beyond the
6. President’s action in calling out the armed reach of judicial review. Respondents Speaker De
forces Venecia, et. al. and intervenor Senator Pimentel raise the
It may be gathered from the broad grant of power novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial
that the actual use to which the President puts the
review. Briefly stated, it is the position of respondents
armed forces, is unlike the suspension of the Speaker De Venecia et. al. that impeachment is a political
privilege of writ of habeas corpus, not subject to action which cannot assume a judicial character. Hence,
judicial review.510 any question, issue or incident arising at any stage of the
But, while the Court considered the President’s impeachment proceeding is beyond the reach of judicial
“calling-out” power as a discretionary power solely review. For his part, intervenor Senator Pimentel
vested in his wisdom and that it cannot be called contends that the Senate's "sole power to try"
upon to overrule the President’s wisdom or impeachment cases (1) entirely excludes the application
of judicial review over it; and (2) necessarily includes the
substitute its own, it stressed that “this does not
Senate's power to determine constitutional questions
prevent an examination of whether such power relative to impeachment proceedings. They contend that
was exercised within permissible constitutional the exercise of judicial review over impeachment
limits or whether it was exercised in a manner proceedings is inappropriate since it runs counter to the
constituting grave abuse of discretion. (IBP v. framers' decision to allocate to different fora the powers
Zamora) Judicial inquiry can go no further than to to try impeachments and to try crimes; it disturbs the
satisfy the Court not that the President’s decision is system of checks and balances, under which
correct, but that “the President did not act impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in
arbitrarily.” Thus, the standard is not
fashioning relief
correctness, but arbitrariness. It is incumbent
upon the petitioner to show that the President’s Held: That granted to the Philippine Supreme Court and
decision is totally bereft of factual basis” and that if lower courts, as expressly provided for in the Constitution,
he fails, by way of proof, to support his assertion, is not just a power but also a duty, and it was given an
then “this Court cannot undertake an independent expanded definition to include the power to correct any
investigation beyond the pleadings. (IBP v. grave abuse of discretion on the part of any government
Zamora cited in David v. Arroyo) branch or instrumentality. that granted to the Philippine
Supreme Court and lower courts, as expressly provided
for in the Constitution, is not just a power but also a duty,
6. Impeachment Case against a Supreme Court and it was given an expanded definition to include the
Justice. power to correct any grave abuse of discretion on the part
of any government branch or instrumentality.
The Constitution provides for several limitations to the
exercise of the power of the House of Representatives
508
See Bernas Commentary, p 919-920 (2003 ed). over impeachment proceedings. These limitations include
509
Cruz, Philippine Political Law, p. 214 (1995 ed). the one-year bar on the impeachment of the same official.
510 It is well within the power of the Supreme Court to inquire
Bernas Commentary, p 866 (2003 ed)

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whether Congress committed a violation of the I. Judicial Review by Lower Courts

Constitution in the exercise of its functions. (Francisco v.
House of Representatives, 415 SCRA 44)
Legal Bases of lower courts’ power of judicial
x-----x
Respondents are also of the view that judicial review of review:
impeachments undermines their finality and may also 1. Article VIII, Section 1. Since the power of
lead to conflicts between Congress and the judiciary. judicial review flows from judicial power
Thus, they call upon this Court to exercise judicial and since inferior courts are possessed of
statesmanship on the principle that "whenever possible,
judicial power, it may be fairly inferred that
the Court should defer to the judgment of the people
expressed legislatively, recognizing full well the perils of the power of judicial review is not an
judicial willfulness and pride exclusive power of the Supreme Court.
Held: “Did not the people also express their will when 2. Article VII, Section 5(2). This same
they instituted the safeguards in the Constitution? This conclusion may be inferred from Article
shows that the Constitution did not intend to leave the
VIII, Section 5(2), which confers on the
matter of impeachment to the sole discretion of Congress.
Instead, it provided for certain well-defined limits, or in the Supreme Court appellate jurisdiction over
language of Baker v. Carr,57 "judicially discoverable judgments and decrees of lower courts in
standards" for determining the validity of the exercise of certain cases.
such discretion, through the power of judicial review.” 3. Statutes
4. General Principles of Law (San Miguel
G. Effect of Declaration of Unconstitutionality Corp. v. SOL)
Orthodox View: An unconstitutional act is not a Note: While a declaration of unconstitutionality

law; it confers no rights; it imposes no duties; it made by the Supreme Court constitutes a
affords no protection; it creates no office; it is precedent binding on all, a similar decision of an
inoperative, as if it had not been passed at all.511 inferior court binds only the parties in the case.515
“When courts declare a law to inconsistent with the
Constitution, the former shall be void and the latter
J. Modalities of Constitutional Interpretation
shall govern.” (Article 7 of the New Civil Code)
1. Historical- Analyzing the intention of the
Modern View: Certain legal effects of the statute framers and the Constitution and the
prior to its declaration of unconstitutionality may be circumstances of its ratification.
recognized. “The actual existence of a statute prior 2. Textual- Reading the language of the
to such a determination of constitutionality is an Constitution as the man on the street would.
operative fact and may have consequences which
cannot always be erased by a new judicial 3. Structural- Drawing inferences from the
declaration.”512 architecture of the three-cornered power
relationships.
H. Partial Unconstitutionality 4. Doctrinal- Rely on established precedents
5. Ethical- Seeks to interpret the Filipino moral
Also in deference to the doctrine of separation of commitments that are embedded in the
powers, courts hesitate to declare a law totally constitutional document.
unconstitutional and as long as it is possible, will
salvage the valid portions thereof in order to give
6. Prudential- Weighing and comparing the
costs and benefits that might be found in
effect to the legislative will.513
conflicting rules.516
Requisites of Partial Unconstitutionality:
VII. Deciding a Case
1. The Legislature must be willing to retain the
valid portion(s).514 Process of Decision Making
2. The valid portion can stand independently as Cases Decided En Banc
law. Cases Decided in Division
A. Process of Decision Making

511 In Consulta
See Norton v. Shelby County, 118 US 425.
512
Certification of Consultation
Chicot County Drainage Dist. V. Baxter States Bank 308 US 371. Explanation on Abstention etc.
513
Cruz, Philippine Political Law, p. 251 (1995 ed); See Senate v. Statement of Facts and the Law
Ermita. Denial of MR or Petition for Review
514
Usually shown by the presence of separability clause. But even Decisions of the Court
without such separability clause, it has been held that if the valid
portion is so far independent of the invalid portion, it may be fair to 515
presume that the legislature would have enacted it by itself if they Bernas Commentary, p 964 (2003 ed).
516
had supposed that they could constitutionally do so. Bernas Commentary, p 964 (2003 ed).

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Period for Decision Purpose. The purpose of certification is to ensure

Certification and Explanation the implementation of the constitutional
requirement that decisions of the Supreme Court
Read Rule 13 of 2010 SC Internal Rules/ See also are reached after consultation with members of the
the 16 Cityhood laws case and Navarro v. Ermita. court sitting en banc or in division before the case
is assigned to a member thereof for decision-
Section 13. The conclusions of the Supreme Court in any writing. (Consing v. CA, 1989)
case submitted to it for decision en banc or in division The certification by the Chief Justice that he has
shall be reached in consultation before the case is assigned the case to a Justice for writing the
assigned to a Member for the writing of the opinion of the opinion will not expose such Justice to pressure
Court. A certification to this effect signed by the Chief since the certification will not identify the Justice.518
Justice shall be issued and a copy thereof attached to the
record of the case and served upon the parties. Any
Members who took no part, or dissented, or abstained Effect of Absence of Certification. The absence
from a decision or resolution must state the reason of the certification would not necessarily mean that
therefor. The same requirements shall be observed by all the case submitted for decision had not been
lower collegiate courts. reached in consultation before being assigned to
one member for writing of the opinion of the Court
since the regular performance of duty is presumed.
Section 14. No decision shall be rendered by any court
without expressing therein clearly and distinctly the facts The lack of certification at the end of the decision
and the law on which it is based. No petition for review or would only serve as evidence of failure to observe
motion for reconsideration of a decision of the court shall certification requirement and may be basis for
be refused due course or denied without stating the legal holding the official responsible for the omission to
basis therefor. account therefore. Such absence of certification
would not have the effect of invalidating the
Section 15. (1) All cases or matters filed after the decision.519
effectivity of this Constitution must be decided or resolved
within twenty-four months from date of submission for the Minute Resolution. Minute resolutions need not
Supreme Court, and, unless reduced by the Supreme be signed by the members of the Court who took
Court, twelve months for all lower collegiate courts, and part in the deliberations of a case nor do they
three months for all other lower courts.
(2) A case or matter shall be deemed submitted for
require the certification of the Chief Justice.
decision or resolution upon the filing of the last pleading, (Borromeo v. CA, 1990)
brief, or memorandum required by the Rules of Court or
by the court itself. 3. Explanation on Abstention etc.
(3) Upon the expiration of the corresponding period, a Any Member who:
certification to this effect signed by the Chief Justice or
the presiding judge shall forthwith be issued and a copy 1. Took no part, or
thereof attached to the record of the case or matter, and 2. Dissented, or
served upon the parties. The certification shall state why
a decision or resolution has not been rendered or issued 3. Abstained
within said period. from a decision or resolution must state the reason
(4) Despite the expiration of the applicable mandatory therefore (Section 13)
period, the court, without prejudice to such responsibility
as may have been incurred in consequence thereof, shall The reason for the required explanation is to
decide or resolve the case or matter submitted thereto for encourage participation.520
determination, without further delay.
4. Statement of Facts and the Law
1. “In Consulta”517 Rule
The conclusions of the Supreme Court in any case Purpose of Requirement
submitted to it for decision en banc or in division Where Applicable
shall be reached in consultation before the case is Where Not Applicable
assigned to a Member for the writing of the opinion Illustration of Sufficient Compliance
of the Court. (Section 13) Illustration of Insufficient Compliance
2. Certification of Consultation and Assignment Rule

A certification as regards consultation and No decision shall be rendered by any court
assignment signed by the Chief Justice shall be without expressing therein clearly and
issued and a copy thereof attached to the record of distinctly the facts and the law on which it is
the case and served upon the parties. (Section 13) based. (Section 14)
518
519
517 520
After deliberations by the group. Bernas Primer at 361 (2006 ed.)

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It has been held that the provision is not

A decision need not be a complete recital of applicable to:
the evidence presented. So long as the factual 1. Decision of the COMELEC525;
and legal basis are clearly and distinctly set
forth supporting the conclusions drawn 2. Decision of military tribunals which are
therefrom, the decision arrived at is valid. not courts of justice.526
However, it is imperative that the decision not 3. Mere orders are not covered since they
simply be limited to the dispositive portion but dispose of only incidents of the case,
must state the nature of the case, summarize such as postponements of the trial. The
the facts with reference to the record, and only exception is an order of dismissal on
contain a statement of applicable laws and the merits527
jurisprudence and the tribunal’s statement and 4. This requirement does not apply to a
conclusions on the case.521 minute resolution dismissing a petition for
habeas corpus, certiorari and mandamus,
Requirement, not jurisdictional. Although provided a legal basis is given therein.
the 1st paragraph of Section 14 is worded in (Mendoza v. CFI 66 SCRA 96)
mandatory language, it is nonetheless merely 5. Neither will it apply to administrative
directory. It has been held that the cases. (Prudential Bank v. Castro, 158
“requirement does not go to the jurisdiction of SCRA 646)
the court”522 (1989 Bar Question)
Illustrative Cases of Sufficient Compliance:
Purpose Facts: The Court of Appeals affirmed the conviction
To inform the person reading the decision, and of petitioner for estafa. Petitioner argued that the
especially the parties, of how it was reached decision did not comply with the Constitution
because instead of making its own finding of facts,
by the court after consideration of the pertinent
the Court of Appeals adopted the statement of facts
facts and examination of applicable laws. in the brief filed by the Solicitor General.
There are various reasons for this: Held: There is no prohibition against court’s
1. To assure the parties that the judge adoption of the narration of facts made in the brief
studied the case; instead of rewriting them in its own words.
2. To give the losing party opportunity to (Hernandez v. CA, 228 SCRA 429)528
analyze the decision and possibly
appeal or, alternatively, convince the Memorandum Decisions.
losing party to accept the decision in The rule remains that the constitutional mandate
saying that “no decision shall be rendered by any
good grace;
court without expressing therein clearly and distinctly
3. To enrich the body of case law, the facts and the law on which it is based,” does not
especially if the decision is from the preclude the validity of “memorandum decisions,”
Supreme Court. (Fransisco v. Permskul, which adopt by reference the findings of fact and
1989) conclusions of law contained in the decisions of
inferior tribunals. This rule has been justified on the
Where Applicable grounds of expediency, practicality, convenience
The constitutional requirement (Section 14, 1st and docket status of our courts.529 (Solid Homes v.
Laserna, 2008)
paragraph) that a decision must express
clearly and distinctly the facts and law on Memorandum decisions can also speed up the
which it is based as referring only to judicial process, a desirable thing and a concern of
decisions523. the Constitution itself. Where a memorandum
Resolutions disposing of petitions fall under decision is used, the decision adopted by reference
the constitutional provision (Section 14, 2nd must be attached to the Memorandum for easy
paragraph) which states that “no petition for reference. Nonetheless, the Memorandum decision
review…shall be refused due course… without should be used sparingly and used only where the
facts as in the main are accepted by both parties
stating the legal basis therefore.” (Borromeo v.
and in simple litigations only. (Fransisco v.
CA) 524 Permskul, 1989)
Where not Applicable Illustrative Cases of Insufficient Compliance

In Dizon v. Judge Lopez, 1997, the decision, which
521
consisted only of the dispositve portion
Antonio B. Nachura, Outline/Reviewer in Political Law 295
(2006 ed.) 525
Nagca v. COMELEC, 112 SCRA 270 (1982).
522
523
Decision is described as a judgment rendered after the 527
presentation of proof or on the basis of stipulation of facts. (Cruz, 528
Philippine Political Law, p. 269 (1995 ed)) Jacinto Jimenez, Political Law Compendium, 350 (2006 ed.)
524 529
Bernas Primer at 362 (2006 ed.) G.R. No. 166051, April 8, 2008.

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(denominated a sin perjuicio530 judgment) was held

invalid. 4. Statement of Legal Basis for Denial of MR or
Petition for Review
Facts: Respondents sold the same property to two
different buyers. Petitioners, the first buyers, filed a No petition for review or motion for reconsideration
case to annul the title of the second buyer. The of a decision of the court shall be refused due
lower court rendered a decision dismissing the course or denied without stating the legal basis
complaint. The decision stated that the plaintiffs therefor. (Section 14)
failed to prove their case and there was no sufficient
proof of bad faith on the part of the second buyer. Resolutions disposing of petitions fall under the
Held: The decision does not comply with the constitutional provision (Section 14, 2nd paragraph)
requirement under the Constitution that it should
which states that “no petition for review…shall be
contain a clear and distinct statement of facts. It
contained conclusions without stating the facts refused due course… without stating the legal
which served as their basis. (Valdez v. CA, 194 basis therefore.”
SCRA 360)
When the Court, after deliberating on a petition and
Facts: Petitioners filed an action to annul the any subsequent pleadings, manifestations,
foreclosure sale of the property mortgaged in favor comments, or motion decides to deny due course
of respondent. After petitioners had rested their to the petition and states that the questions raised
case, respondent filed a demurrer to the evidence.
are factual or no reversible error or if the
The trial court issued an order dismissing the case
on the ground that the evidence showed that the respondent court’s decision is shown or for some
sale was in complete accord with the requirements other legal basis stated in the resolution, there is
of Section 3 of Act No. 3135. sufficient compliance with the constitutional
Held: The order violates the constitutional requirement. (Borromeo v. CA)
requirement. The order did not discuss what the
evidence was or why the legal requirements had Illustrative Cases:
been observed. (Nicos Industrial Corporation v. CA, The Court of Appeals denied the petitioner’s motion for
206 SCRA 122) reconsideration in this wise: “Evidently, the motion poses
nothing new. The points and arguments raised by the
Facts: The RTC convicted the accused of murder. movants have been considered an passed upon in the
The decision contained no findings of fact in regard decision sought to be reconsidered. Thus, we find no
to the commission of the crime and simply contained reason to disturb the same.” The Supreme Court held that
the conclusion that the prosecution had sufficiently there was adequate compliance with the constitutional
established the guilt of the accused of the crime provision. (Martinez v. CA, 2001)
charged beyond reasonable doubt and that the
witnesses for the protection were more credible. The Supreme Court ruled that “lack of merit” is sufficient
Held: The decision did not contain any findings of declaration of the legal basis for denial of petition for
fact which are essential in decision-making. (People review or motion for reconsideration. (Prudential Bank v.
v. Viernes, 262 SCRA 641) Castro)
Facts: Petitioners sued respondents for damages
5. Period for Decision
on the ground that they were not able to take their
flight although the travel agent who sold them the All cases or matters filed after the effectivity of
plane tickets confirmed their reservations. The 1987 Constitution must be decided or resolved
decision of the trial court summarized the evidence within twenty-four months from date of
for the parties and then held that respondent, the submission for the Supreme Court. (Section 15).
travel agent, and the sub-agent should be held
jointly and severally liable for damages on the basis Exception: When the Supreme Court review the
of the facts.
Held: The decision did not distinctly and clearly set
factual basis of the proclamation of martial law or
forth the factual and legal bases for holding suspension of the privilege of the writ or the
respondents jointly and severally liable. (Yee Eng extension thereof, it must promulgate its decision
Chong v. Pan American World Airways Inc., 328 thereon within 30 days from its filing. (Article VII,
SCRA 717) Section 18).
Facts: The MTC convicted petitioner of unfair Mandatory. Decision within the maximum period is
competition. Petitioner appealed to the RTC. The mandatory. Failure to comply can subject a
RTC affirmed his conviction. The RTC stated in this
decision that it found no cogent reason to disturb the
Supreme Court Justice to impeachment for
findings of fact of MTC. culpable violation of the Constitution.531
Held: The decision of the RTC fell short of the
constitutional requirement. The decision in question The court, under the 1987 Constitution, is now
should be struck down as a nullity. (Yao v. CA, 344 mandated to decide or resolve the case or matter
SCRA 202) submitted to it for determination within specified
periods. Even when there is delay and no decision
530
Sin Perjuicio judgment is a judgment without a
531
statement of facts in support of its conclusions. Bernas Commentary, p 997(2003 ed).

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or resolution is made within the prescribed period, 4. Cases heard by a division when the
there is no automatic affirmance of the appealed required majority in the division is not
decision. This is different from the rule under obtained;
Article X, Section 11(2) of the 1973 Constitution 5. Cases where the Supreme Court modifies
which said that, in case of delay, the decision or reverses a doctrine or principle of law
appealed from was deemed affirmed. (Sesbreño v. previously laid down either en banc or in
CA, 2008) 532 division.
6. When a Case Deemed Submitted 6. Administrative cases involving the
discipline or dismissal of judges of lower
A case or matter shall be deemed submitted for
courts (Section 11) [Dismissal of judges,
decision or resolution upon the filing of the last
Disbarment of a lawyer, suspension of
pleading, brief, or memorandum required by the
either for more than 1 year or a fine
Rules of Court or by the court itself. (Section 15)
exceeding 10,000 pesos (People v.
Gacott)]
7. Certification of Period’s Expiration and
7. Election contests for President or Vice-
Explanation for Failure to Render Decision or
President.
Resolution
Upon the expiration of the corresponding period, a 8. Appeals from Sandiganbayan or
certification to this effect signed by the Chief Constitutional Commissions. (Legal
Justice or the presiding judge shall forthwith be Basis?)
issued and a copy thereof attached to the record of
the case or matter, and served upon the parties. (See Rule 2 Section3 of 2010 SC Internal Rules)
The certification shall state why a decision or
resolution has not been rendered or issued within Number of Votes Needed to Decide a Case
said period. (Section 15) Heard En Banc:
When the Supreme Court sits en banc cases are
Despite the expiration of the applicable mandatory decided by the concurrence of “majority if the
period, the court, without prejudice to such members who actually took part in the deliberations
responsibility as may have been incurred in on the issues in the cases and voted thereon.”
consequence thereof, shall decide or resolve the Thus, since a quorum of the Supreme Court is
case or matter submitted thereto for determination, eight, the votes of at least five are needed and are
enough, even if it is a question of constitutionality.
without further delay. (Section 15)
(Those who did not take part in the deliberation do
not have the right to vote)533 (1996 Bar Question)
B. Cases Decided En Banc ASM: In reality, when the decision says that a
particular Justice “did not take part”, it does not
Section 4 necessarily mean that he was not there during the
(2) All cases involving the constitutionality of a treaty, deliberations.
international or executive agreement, or law, which shall
be heard by the Supreme Court en banc, and all other
cases which under the Rules of Court are required to be Q: How many justices are needed to constitute a
heard en banc, including those involving the quorum when the Court sits en banc and there are
constitutionality, application, or operation of presidential only fourteen justices in office?
decrees, proclamations, orders, instructions, ordinances, A: In People v. Ebio, 2004, since it was a capital
and other regulations, shall be decided with the criminal cases, the Court said that there should be
concurrence of a majority of the Members who actually eight.534
took part in the deliberations on the issues in the case
and voted thereon.
Procedure if opinion is equally divided.
(1999 Bar Question) When the Court en banc is equally divided in
Cases that must be heard en banc: opinion, or the necessary majority cannot be had,
1. All cases involving the constitutionality of the case shall again be deliberated on, and if after
a treaty, international or executive such deliberation no decision is reached, the
agreement, or law. original action commenced in the court shall be
2. All cases which under the Rules of Court dismissed; in appealed cases, the judgment or
are required to be heard en banc order appealed from shall stand affirmed; and on
3. All cases involving the constitutionality, all incidental matters, the petition or motion shall be
application, or operation of presidential denied.(Rule 56, Section 7, Rules of Court)
decrees, proclamations, orders,
instructions, ordinances, and other C. Cases Decided in Division
regulations
533
532 534
G.R. No. 161390, April 16, 2008. Bernas Primer at 337 (2006 ed.)

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decision is not reconsidered and must therefore be

Section 4 deemed affirmed. (Fortich v. Corona, 1999)
(3) Cases or matters heard by a division shall be decided
or resolved with the concurrence of a majority of the Supreme Court and Stare Decisis
Members who actually took part in the deliberations on
the issues in the case and voted thereon, and in no case,
Stare decisis derives its name from the Latin
without the concurrence of at least three of such
Members. When the required number is not obtained, the maxim stare decisis et non quieta movere, i.e., to
case shall be decided en banc: Provided, that no doctrine adhere to precedent and not to unsettle things that
or principle of law laid down by the court in a decision are settled. It simply means that a principle
rendered en banc or in division may be modified or underlying the decision in one case is deemed of
reversed except by the court sitting en banc. imperative authority, controlling the decisions of
like cases in the same court and in lower courts
Divisions are not separate and distinct courts. within the same jurisdiction, unless and until the
Actions considered in any of the divisions and decision in question is reversed or overruled by a
decisions rendered therein are, in effect by the court of competent authority. The decisions relied
same Tribunal. Decisions or resolutions of a upon as precedents are commonly those of
division of the court are not inferior to an en banc appellate courts, because the decisions of the trial
decision. (People v. Dy, 2003) courts may be appealed to higher courts and for
that reason are probably not the best evidence of
Decisions of a division, not appealable to en the rules of law laid down.
banc. Decisions or resolutions of a division of the
court, when concurred in by majority of its Judicial decisions assume the same authority as a
members who actually took part in the deliberations statute itself and, until authoritatively abandoned,
on the issues in a case and voted thereon is a necessarily become, to the extent that they are
decision or resolution of the Supreme Court. applicable, the criteria that must control the
(Firestone Ceramics v. CA, 2000) actuations, not only of those called upon to abide
by them, but also of those duty-bound to enforce
Where the required number cannot be obtained obedience to them. In a hierarchical judicial system
in a division of three in deciding a case. Where like ours, the decisions of the higher courts bind the
the required number of votes is not obtained, there lower courts, but the courts of co-ordinate authority
is no decision. The only way to dispose of the case do not bind each other. The one highest court does
then is to refer it to the Court en banc. (Section not bind itself, being invested with the innate
4(3)) authority to rule according to its best lights.
“Cases” v. “Matters”. The Court, as the highest court of the land, may
“Cases or matters heard by a division shall be decided be guided but is not controlled by precedent.
or resolved with the concurrence of a majority of the Thus, the Court, especially with a new
Members who actually took part in the deliberations on membership, is not obliged to follow blindly a
the issues in the case and voted thereon, and in no case, particular decision that it determines, after re-
without the concurrence of at least three of such
Members.”
examination, to call for a rectification. The
When the required number is not obtained, the case shall adherence to precedents is strict and rigid in a
be decided en banc.” common-law setting like the United Kingdom,
A careful reading of the above constitutional where judges make law as binding as an Act of
provision reveals the intention of the framers to Parliament. But ours is not a common-law system;
draw a distinction between cases on one hand and, hence, judicial precedents are not always strictly
and matters on the other hand, such that cases are and rigidly followed. A judicial pronouncement in an
‘decided’ while matters, including motions, are earlier decision may be followed as a precedent in
‘resolved’. Otherwise put, the word “decided” must a subsequent case only when its reasoning and
refer to ‘cases; while the word ‘resolved’ must refer justification are relevant, and the court in the latter
to ‘matters’. case accepts such reasoning and justification to be
applicable to the case. The application of
Where the required number cannot be obtained precedent is for the sake of convenience and
in a division of three in motion for stability.
reconsideration. If a case has already been
decided by the division and the losing party files a VIII. Other Courts
motion for reconsideration, the failure of the
Composition
division to resolve the motion because of a tie in
Judicial Power; Judicial Review
the voting does not leave the case undecided.
Jurisdiction
Quite plainly, if the voting results in a tie, the
Qualifications
motion for reconsideration is lost. The assailed
Appointment
Salaries

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Tenure judgments and decrees of lower courts in

Removal certain cases.
Prohibition
Deciding a Case Note: While a declaration of unconstitutionality
made by the Supreme Court constitutes a
A. Composition precedent binding on all, a similar decision of an
inferior court binds only the parties in the case.536
The composition of lower courts shall be provided
by law. The laws are Judiciary Act of 1948 and BP C. Jurisdiction of Lower Courts
129.
1 Statutory Conferment of Jurisdiction
The different lower courts under the Judiciary
Reorganization Law are the: The Congress shall have the power to define,
1. Court of Appeals prescribe, and apportion the jurisdiction of the
2. regional trial courts various courts. (Section 2)
3. metropolitan trial courts
4. municipal trial courts 2. Constitutional Conferment of Jurisdiction
5. municipal circuit trial courts
J.M. Tuason & Co. v. CA; Ynot v. IAC: There is in
Other Courts: effect a constitutional conferment of original
1. Court of Tax Appeals jurisdiction on the lower courts in those five cases
2. Sandignabayan for which the Supreme Court is granted appellate
3. Sharia Court jurisdiction in Section 5(2).
(Together with the Supreme Court , the Section 5(2). The Supreme Court has the power to
aforementioned tribunals make up the judicial review, revise, reverse, modify, or affirm on appeal or
department of our government)535 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
Court of Appeals. The Court of Appeals is validity of any treaty, international or executive
composed of 68 Associate Justices and 1 agreement, law, presidential decree,
Presiding Justice. (RA 52; RA 8246) proclamation, order, instruction, ordinance, or
regulation is in question.
b. All cases involving the legality of any tax,
B. Judicial Power; Judicial Review in Lower Courts impost, assessment, or toll, or any penalty
imposed in relation thereto.
c. All cases in which the jurisdiction of any lower
Judicial power shall be vested in one Supreme court is in issue.
Court and in such lower courts as may be d. All criminal cases in which the penalty imposed
established by law. is reclusion perpetua or higher.
Judicial power includes the duty of the courts of e. All cases in which only an error or question of
justice to settle actual controversies involving rights law is involved.
which are legally demandable and enforceable,
and to determine whether or not there has been a D. Contempt Powers
grave abuse of discretion amounting to lack or (See Rule 71)
excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Section 1) The power to punish for contempt is inherent in al
courts; its existence is essential to the preservation
Legal Bases of lower courts’ power of judicial of order in judicial proceedings and to the
review: enforcement of judgment, orders, and mandates of
1. Article VIII, Section 1. Since the power of the courts, and consequently, to the due
judicial review flows from judicial power administration of justice.537
and since inferior courts are possessed of 1996 Bar Question
judicial power, it may be fairly inferred that On the first day of the trial of a rape-murder case
the power of judicial review is not an where the victim was a popular TV star, over a
exclusive power of the Supreme Court. hundred of her fans rallied at his entrance of the
courthouse, each carrying a placard demanding
2. Article VII, Section 5(2). This same the conviction of the accused and the imposition of
conclusion may be inferred from Article the death penalty on him. The rally was peaceful
VIII, Section 5(2), which confers on the and did not disturb the proceedings of the case.
Supreme Court appellate jurisdiction over
536
535 537
Cruz, Philippine Political Law, p. 231 (1995 ed). Slade Perkins v. Director of Prisions, 58 Phil 271.

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Q: Can the trial court order the dispersal of the 4. Must be a person of proven competence,
rallyists under the pain of being punished for integrity, probity and independence.
contempt of court? (Section 7(3))
Suggested Answer: Yes, the trial court can order
the dispersal of the rally under the pain of being Qualifications of RTC Judges:
cited for contempt. The purpose of the rally is to
attempt to influence the administration of justice. 1. Citizen of the Philippines; (Section 7(2))
As stated in People v. Flores, 239 SCRA 83, any 2. Member of the Philippine Bar (Section
conduct by any party which tends to directly or 7(2))
indirectly impede or obstruct or degrade the 3. A person of proven competence, integrity,
administration of justice is subject to the contempt probity and independence.
powers of the court. 4. Possessing the other qualifications
Q: If instead of a rally, the fans of the victim wrote prescribed by Congress (Section 7(2))
letters to the newspaper editors demanding the a) At least 35 years old (BP 129,
conviction of the accused, can the trial court punish Section 15)
them for contempt? b) Has been engaged for at least
Suggested Answer: No, the trial court cannot [10] years in the practice of law
punish for contempt the fans of the victim who in the Philippines or has held
wrote letters to the newspaper editors. Since the public office in the Philippines
letters were not addressed to the judge and the requiring admission to the
publication of the letters occurred outside the court, practice of law as an
the fans cannot be punished in the absence of a indispensable requisite. (BP 129,
clear and present danger to the administration of Section 15)
justice.
Qualifications of MTC, MeTC, MCTC Judges:

E. Qualifications 1. Citizen of the Philippines; (Section 7(2))
2. Member of the Philippine Bar (Section
1. Qualifications of Members of Court of 7(2))
Appeals 3. A person of proven competence, integrity,
1. Must be a natural-born citizen of the probity and independence.
Philippines (Section 7(1)) 4. Possessing the other qualifications
2. Must be a member of the Philippine Bar prescribed by Congress (Section 7(2))
(Section 7(2)) a) At least 35 years old (BP 129,
Section 26)
3. Must be a person of proven competence,
integrity, probity, and independence. b) Has been engaged for at least 5
(Section 7(3)) years in the practice of law in the
4. Possessing other qualifications prescribed Philippines or has held public
by Congress (Section 7(2)) office in the Philippines requiring
Section 7 of BP 129 provides that, ”The admission to the practice of law
Presiding Justice and the Associate Justice as an indispensable requisite.
shall have the same qualifications as those (BP 129, Section 26)
provided in Constitution for Justice of the
Supreme Court”. Hence, the members of the Qualifications of CTA Judges:
CA must also be: Judges of the CTA shall gave the same
a. Must at least be 40 years of age; qualifications as Members of the Supreme Court.
(RA No. 1125, Section 1 in relation to CA No. 102,
b. Must have been for 15 years or Section 1)
more a judge of a lower court or
engaged in the practice of law in the Qualifications of Members of Sandiganbayan:
Philippines No person shall be appointed as Member of the
Sandiganbayan unless he is at least forty years of
2. Constitutional Qualifications for Non- age and for at least 10 years has been a judge of a
collegiate courts court of record or has been engaged in the practice
1. Citizens of the Philippines (Section 7(2)) of law in the Philippines or has held office requiring
2. Members of the Philippine Bar (Section admission to the bar as a prerequisite for a like
7(2)) period. (PD No. 1606 as amended, Section 1)
3. Possessing the other qualifications
prescribed by Congress (Section 7(2)) Qualifications of judges of Shari’a Courts:
In addition to the qualifications for Members of
Regional Trial Courts, a judge of the Sharia’s

SCHOOL OF LAW
district court must be learned in the Islamic Law Section 4(1) and 9 of Article VIII simply
and Jurisprudence. (PD No. 1083, Article 140) mean that the President is required by law to
No person shall be appointed judge of the Shari’a fill up vacancies in the courts within the
Circuit Court unless he is at least 25 years of age, same time frames provided therein unless
and has passed an examination in the Shari’a and prohibited by Section 15 of Article VII.
Islamic jurisprudence to be given by the Supreme While the filing up of vacancies in the
Court for admission to special membership in the judiciary is undoubtedly in the public
Philippine Bar to practice in the Shari’a courts. (PD interest, there is no showing in this case of
No. 1083, Article 152) any compelling reason to justify the making
of the appointments during the period of the
Note: Congress may not alter the constitutional ban. (In Re Appointment of Mateo
qualifications of members of the Judiciary. But Valenzuela, 1998)
Congress may alter the statutory qualifications of
judges and justices of lower courts.538 New Doctrine: The prohibition under Article
VII, Section 15 of the Constitution against
It behooves every prospective appointee to the presidential appointments immediately
Judiciary to apprise the appointing authority of before the next presidential elections and up
every matter bearing on his fitness for judicial to the end of the term of the President does
office, including such circumstances as may reflect not apply to vacancies in the Supreme
on his integrity and probity. Thus the fact that a Court. (De Castro v. JBC, March 17, 2010)
prospective judge failed to disclose that he had
been administratively charged and dismissed from E. Salaries
the service for grave misconduct by a former
President of the Philippines was used against him. The salary of judges of lower courts shall be fixed
It did not matter that he had resigned from office by law. During their continuance in office, their
and that the administrative case against him had salary shall not be decreased. (Section 10)
become moot and academic.539
Imposition of income tax on salaries of judges
D. Appointment does not violate the constitutional prohibition
against decrease in salaries.(Nitafan v. Tan, 152
The judges of lower courts shall be appointed by SCRA 284)
the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every F. Tenure
vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the The judges of lower courts shall hold office during
appointments within ninety days from the good behavior until they reach the age of seventy
submission of the list. (Section 9) years or become incapacitated to discharge the
duties of their office. (Section 11)
Old Doctrine: [Section 15] applies in the
appointments in the Judiciary. Two No law shall be passed reorganizing the Judiciary
months immediately before the next when it undermines the security of tenure of
presidential elections and up to the end of members. (Section 2)
his term, a President or Acting President
shall not make appointments, except In Vargas v. Villaroza, (80 Phil 297 (1982), the
temporary appointments to executive Supreme Court held that the guarantee of security
positions when continued vacancies therein of tenure is a guarantee not just against “actual
will prejudice public service or endanger removal” but also of “uninterrupted continuity in
public safety. Since the exception applies tenure.”
only to executive positions, the prohibition
covers appointments to the judiciary.540 G. Discipline/ Removal
During this period [2 months immediately
before the next presidential elections…], the The Supreme Court en banc shall have the power
President is neither required to make of discipline judges of lower courts, or order their
appointments to the courts nor allowed to do dismissal by a vote of a majority of the Members
so. who actually took part in the deliberations on the
issues in the case and voted thereon.
538 According to People v. Gacott, (1995), only

539
In re JBC v. Judge Quitain, JBC No. 013, August 22, 2007.
dismissal of judges, disbarment of a lawyer,
540 suspension of either for more than 1 year or a fine
In re: Appointment of Valenzuela, AM 98-0501 SC, November 9,
1998.

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exceeding 10,000 pesos requires en banc All other lower courts 3 months (Section 15)
decision.
(1) All cases or matters filed after the effectivity of
The grounds for the removal of a judicial officer 1987 Constitution must be decided or resolved
should be established beyond reasonable doubt, within, unless reduced by the Supreme Court,
particularly where the charges on which the twelve months for all lower collegiate courts,
removal is sought are misconduct in office, willful and three months for all other lower courts.
neglect, corruption and incompetence. (Office of (2) A case or matter shall be deemed submitted for
the Judicial Administrator v. Pascual, 1996) decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the
H. Prohibition Rules of Court or by the court itself.
(4) Despite the expiration of the applicable
The members of courts established by law shall not mandatory period, the court, without prejudice to
be designated to any agency performing quasi- such responsibility as may have been incurred in
judicial or administrative functions. (Section 12) consequence thereof, shall decide or resolve the
case or matter submitted thereto for determination,
Thus, where a judge was designated member of without further delay. (Section 15)
the Ilocos Norte Provincial Committee on Justice
by the Provincial Governor where the function of RE Problem of Delays in the Sandiganbayan
the Committee was to receive complaints and The provision in Article VIII, Section 15 of the 1987
make recommendations towards the speedy Constitution which says that cases or matters filed
disposition of cases of detainees, the designation must be decided by “lower collegiate courts” within
was invalidated. (In re Manzano, 166 SCRA 246 12 months, does not apply to the Sandiganbayan.
(1988). The provision refers to regular courts of lower
collegiate level, which is the Court of Appeals.
I. Deciding a Case The Sandiganbayan is a special court on the same
level as the Court of Appeals, possessing all
1. Consultation inherent powers of a court of justice with the same
The conclusions of the [lower collegiate courts] in functions of a trial court. The Sandiganbayan,
any case submitted to it for decision en banc or in being a special court, shall have the power to
division shall be reached in consultation before the promulgate its own rules. In fact, it promulgated its
case is assigned to a Member for the writing of the own rules regarding the reglementary period of
opinion of the court. undecided cases under its jurisdiction. In its own
A certification to this effect signed by the [Chief rules it says that judgments on pending cases shall
Justice] shall be issued and a copy thereof be rendered within 3 months. Also, the law creating
attached to the record of the case and served upon the Sandiganbayan is also clear with the 3 month
the parties. reglementary period. The Sandiganbayan, in a
Any Members who took no part, or dissented, or sense, acts like a trial court, therefore a 3 month
abstained from a decision or resolution must state and not a 12 month reglementary period.
the reason therefor. (Section 13)
Note: CA sits in divisions when it hears cases; the

only time to convenes as one body is to take up
matters of administration.
2. Statement of Facts and Law

No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts
and the law on which it is based.
No petition for review or motion for reconsideration
of a decision of the court shall be refused due
course or denied without stating the legal basis
therefor. (Section 14)
3. Period in Deciding Case

Court Period
Supreme Court 24 months (Section 15)
Court of Appeals 12 months (Section 15)
Sandiganbayan 3 months (Re Problem
of Delays in
Sandiganbayan)


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FRATERNAL ORDER OF UTOPIA

ATENEO DE MANILA UNIVERSITY

MANGUERA OUTLINE 2011

organs of the state and defines the relations of the

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In other words: It is the supreme written law of C. Purpose of the Constitution

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F. Qualities of good written constitution J. Brief Constitutional History

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3. The Bill of Rights of the should not be beguiled by foreign

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Constitutional supremacy produced judicial American sovereignty in the Philippines, the

The essence of republicanism is representation Limitations on the Principle

Reason. The underlying reason of this principle is

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Expression of Constitutional Supremacy.

Judicial Review in Philippine Constitution.

Origin: By the 39th chapter of the Magna Carta

Definition45: Embodiment of the sporting idea of

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independence and democracy under the rule of law

I. Meaning III. Social Contract Theory

Thus, Preamble is a source of light.52 It is not a

Its origin, or authorship, is the will of the “sovereign

The identification of the Filipino people as the

C. Scope and Purpose

“To build a just and humane society as to establish

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o Exclusive Economic Zone/Patrimonial

I. Territory C. Significance of Territory

1. State’s sovereignty is over its:

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4. The island of Batanes, which was covered C. Archipelagic Waters

A. Archipelago Bernas: The reservation is ad cautelam. The claim

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XXIX. Full Public Disclosure (§28)

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Territory as an element of a state means an area

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3. Extra-territorial jurisdiction- authority of C Government

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• The NHA is tasked with implementing the government by the inhabitants of a

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Q: What constitutional forms of government A. Republic

C. Acts of State Republican state is a state wherein all

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B. Essential Features of Republicanism

IV. Renunciation of War/ Incorporation Clause/ 1. Acceptance of Dualist View

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4. To What Elements of International Law does B. Armed Forces of the Philippines

C. Policy of PEJ-FCA with All Nations 2. Composition

That civilian authority is at all times supreme over

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C. Separation of Church and State is Reinforced by:

VII. Peace and Order D. Exceptions

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integrity, national interest, and the XII. Social Justice

X. Freedom from Nuclear Weapons A. Definition of Social Justice

Social Justice is neither communism, nor

Exception to this policy may be made by the