2022 BAR Review Notes

POLITICAL LAW AND INTERNATIONAL LAW

Attorney EDWIN REY SANDOVAL
(January 7 - 12, 2022)
(Patterned after BAR BULLETIN No. 31, s. 2022)
(Additions made – January 17 - 20, 2022)

Quotable Quotes from NBA greats:

“You miss one hundred percent (100%) of the shots you don’t take.”

- Michael Jordan

“If you are afraid of failure, you don’t deserve to be successful.”

- Charles Barkley

Constitutional Law (11 Questions)

Is sovereignty really absolute?

In the domestic sphere sovereignty is really absolute. But this may not be so in
the field of international relations, as there may be limitations imposed on sovereignty.
First, limitations brought about by the very nature of membership in the family of nations,
and second, limitations imposed by treaty stipulations. When the Philippines joined the
UN, it is understand that it will voluntarily surrender some aspects of its sovereign powers
in exchange for greater benefits that it may derive by being a member of the UN,
otherwise it may face isolation from the rest of the world; likewise, when we enter into
treaties with other states, it is understood that we must surrender some aspects of our
state power in exchange for greater benefits that we would derive from such treaties,
especially in view of “pacta sunt servanda,” which is one of the oldest principles of
international law and, by the doctrine of incorporation, automatically becomes part of
our laws (Tanada vs. Angara). This is the concept of auto-limitation on sovereignty.

The Meaning of Judicial Power

It includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. (Sec. 1, 2nd par., Art. VIII,
1987 Constitution)

This definition has two parts. The first part speaks of the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and
enforceable. (The traditional concept)

The second part speaks of the duty of the courts of justice to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government. (The
expanded power of judicial review)
 Because of the expanded power of judicial review (2nd part), the political question
doctrine has been adversely affected; in fact, it has been greatly diminished. Because
actually nowadays, even if the question presented before the court appears to be a
political question, for as long as there is sufficient allegation of grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the government, the court may still intrude into those questions.

The Political Question Doctrine

Political questions are questions of policy. They involve the wisdom (not legality)
of an act, or the efficacy or the necessity of a particular measure and, therefore, not
subject to judicial review - a forbidden territory on the part of the courts.

As defined in Tanada vs. Cuenco, political questions are those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or
those, in regard to which, full discretionary authority has been delegated to the legislative
or the executive branch of the government (the political branches, as distinguished from
the judicial branch).

Based on this definition, there are actually two types of political questions, i.e.,
those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity (1st type), or those, in regard to which, full discretionary authority has
been delegated to the legislative or the executive branch (2nd type).

The 2nd type was the one adversely affected by the expanded power of judicial
review.

Requisites of Justiciability

1. There must always be an actual case or controversy;

2. It must be raised by the proper party, i.e., the petitioner must have sufficient
locus standi or legal standing to question the act complied of;
3. The constitutional question must be raised at the earliest opportune time; and
4. The resolution of the constitutional question must constitute the very lis mota
or the very main issue of the entire controversy, i.e., there is no way by which
the court may resolve the entire controversy unless the court first resolves the
constitutional question raised.

Of these requisites, the first two are the most important. (Belgica vs. Ochoa)

Meaning of an “Actual Case or Controversy”

An actual case or controversy means an existing case or controversy which is both

ripe for resolution and susceptible of judicial determination; that which is not conjectural
or anticipatory, or that which seeks to resolve hypothetical or feigned constitutional
problems.

Based on this requirement, courts may not resolve hypothetical cases or cases
based on assumptions; courts may not even render advisory opinion (because by the
very nature of an advisory opinion, there is no actual controversy involved). In fact, even
if initially there is an actual case or controversy, but if due to supervening events the case
has been rendered moot and academic, the court may have to dismiss the petition on
that consideration.

The Moot and Academic Principle

 As a rule, if a case has been rendered moot and academic by supervening events,
the court will have to dismiss the case. However, there are exceptions to the moot and
academic principle, and these are:

First, there is a grave violation of the Constitution;

Second, the exceptional character of the situation and the paramount public
interest is involved;
Third, when the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and
Fourth, the case is capable of repetition yet evading review. (Belgica vs. Ochoa)

The Meaning of Legal Standing or “Locus Standi”

Locus standi is a right of appearance in a court of justice on a given question.

Specifically, it is a party’s personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result of the governmental act being challenged.

The trend nowadays is towards the liberalization of the rules on legal standing,
which trend began in the case of Oposa vs. Factoran (a leading case in environmental
protection and enforcement).

The Rule-Making Power of the Supreme Court (Sec. 5[5], Art. VIII, 1987 Constitution)

The power of the Supreme Court to promulgate rules concerning the protection
and enforcement of constitutional rights, pleading, practice, and procedure in all courts,
the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. (Sec. 5[5], Art. 8, 1987 Constitution)

Included in this provision is the power to promulgate rules concerning admission

to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.

Republic Act No. 7662 (Creating the Legal Education Board [LEB])

Republic Act No. 7662 was enacted by Congress which created the Legal Education
Board (LEB) which is attached to the Commission on Higher Education (CHED), an office
under the executive branch, to regulate the study of law (legal education) in the country.
Did this encroach on the rule-making power of the SC?

In Pimentel vs. Legal Education Board, the SC clarified that the rule-making power
of the SC applies only to admission to the practice of law – not admission to the study of
law (legal education). Legal education is merely an aspect of the entire Philippine
educational system and, historically, the power to regulate the entire Philippine
educational system (of which legal education is merely an aspect thereof) has been
exercised by the political branches of the government, i.e., the Congress and the
executive branch, not by the Court, under the police power.

However, while upholding the constitutionality of R.A. No. 7662, there were certain
acts of the Legal Education Board (LEB) which were declared ultra vires and
unconstitutional as they encroached on the rule-making power of the SC and the
academic freedom of institutions of higher learning (Sec 5[2], Art XIV, 1987 Constitution).

Particular acts of the LEB declared ultra vires and unconstitutional, (among others)
 Prescribing a Philippine Law School Admission Test (PHILSAT) as a “pass-or-fail”
aptitude test for a student to be admitted in a law school. This encroached on the
academic freedom of schools which includes the right of a school to determine on
academic grounds “who may be admitted to study.” What the LEB may validly prescribe
is minimum requirement for admission in a law school but it is up for a school to adopt
its own admission criteria;

Prescribing a mandatory legal internship program to be integrated in a law school’s

curriculum as it encroached not only on the academic freedom of schools but also on the
rule-making power of the SC. Only the SC can promulgate rules on limited law practice.

Prescribing mandatory requirement to teach (holder of a master’s degree in law),

and to be appointed dean (holder of a doctorate degree in law) of a law school. Again,
what the LEB may validly promulgate are minimum requirements to teach law and to be
appointed dean of a law school.

Prescribing a mandatory continuing legal education for lawyers. Lawyers are

subject to the regulatory power of the SC thru the IBP - not the LEB.

Academic Freedom of Institution of Higher Learning (Sec. 5[2], Art. XIV, 1987
Constitution)

The right of a school or college to decide for itself, its aims and objectives, and
how best to attain them free from outside coercion or interference, except possibly when
the overriding public welfare calls for some restraint.

Based on this definition, the “essential freedoms” subsumed therein are the
freedom of the school to determine, on academic grounds:

1. Who may teach;

2. What may be taught;
3. How it shall be taught and;
4. Who may be admitted to study.

May the President validly exercise emergency power motu proprio in view of the corona
virus pandemic?

No. Emergency power is merely a delegated power from Congress (Sec. 23, 2nd
par., Art VI, i987 Constitution). For that matter, what are the requisites for Congress to
validly delegate emergency powers to the President?

1. There must be war, or other national emergency (like this corona virus
pandemic);
2. The delegation must be for a limited period only (not indefinite);
3. It is always subject to such restrictions as Congress may prescribe and;
4. It must be pursuant to a declared national policy.

The Three Important Powers of the President in Sec. 18, Art. VII, 1987 Constitution

1. His calling out-power as commander-in-chief of the armed forces;

2. His power to proclaim martial law; and
3. His power to suspend the privilege of the writ of habeas corpus.
 The calling-out power as commander-in-chief of the armed forces is exclusive to
the President. An exercise by any other official such as a governor is ultra vires and
cannot be justified. (Kulayan vs. Governor Abdusakur Tan)

There are only two grounds to proclaim martial law or suspend the privilege of the
writ of habeas corpus: invasion or rebellion, when the public safety requires it. On the
other hand, for the President to call-out the armed forces as commander-in-chief, the
grounds are lawless violence, invasion or rebellion.

The martial law power and the power to suspend the privilege of the writ have
expressly been made subject to judicial review (3rd par., Sec. 18, Art. VII, 1987
Constitution); whereas the calling-out as commander-in-chief of the armed forces is a
political question, unless it can be shown that the President gravely abused his discretion
in the exercise of said power (IBP vs. Zamora).

Martial law and the suspension of the privilege of the writ has a fixed duration of
sixty days; it may even be revoked by Congress, or extended upon the initiative of the
President.

There is also a requirement now for the President to report to Congress, whether
personally or in writing, within 24 hours after the proclamation of martial law or
suspension of the privilege of the writ, and Congress, when not in session then, is
mandated by the Constitution to meet in special session even without a call from the
President.

A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military and agencies over civilians where civil courts are
able to function.

The proclamation of martial law does not automatically suspend the privilege of
the writ of habeas corpus.

The right to bail shall not be impaired even when the privilege of the writ is
suspended.

The Party-list System

How many party-list representatives should there be?

The party-list representatives shall constitute twenty per cent of the total number
of representatives, including those under the party-list (Sec. 5[2], Art. VI, 1987
Constitution).

Based on this provision, the ratio is 4:1, i.e., for every four district
representatives, there should be one party-list representative. Fractional
representation is not allowed. (Veterans Federation Party vs. Comelec)

May the dominant political parties in the Philippines, like the PDP-Laban, validly
participate in party-list elections?

As a rule, if they field candidates in district elections, they may not. However, by
way of exception, even if they field candidates in district elections, they may still
participate in party-list elections through their sectoral wing (like labor sector) provided
that the sectoral wing is registered separately as a political party in the COMELEC and is
linked to the dominant party by way of a coalition. (Atong Paglaum, Inc. vs. COMELEC)

The Electoral Tribunals in Congress (Sec. 17, Art. VI, 1987 Constitution)

From the decision of the electoral tribunals in Congress, where should a party adversely
affected by such decision go to appeal?

No appeal lies, because the Constitution made these electoral tribunals to be the
sole judge of all contests relating to the election, returns and qualifications of their
respective members (Sec. 17, Art. VI, 1987 Constitution). In the first place, appeal is not
a constitutional right as it is not found in the Bill of Rights; it is merely statutory, so that
if there is no law that grants a person the right to appeal, he may not appeal.

The only remedy available to a party adversely affected by the decision of these
electoral tribunals in Congress is not an appeal, but the special civil action for certiorari
governed by Rule 65 of the Rules of Court based on grave abuse of discretion.

Fundamental Powers of the State

The fundamental powers of the State are the police power, the power of eminent
domain and the power of taxation. These are inherent powers of the State as they co-
exist with the State; the moment the State comes into being, they become operative.
There is no need of any grant of these powers to the State.

As inherent powers, they are to be exercised by the Congress (the legislature).

However, these powers may be delegated to the President, to administrative bodies or
agencies, to local governments. With respect to eminent domain, it may even be
delegated to quasi-public corporations (private corporations performing public functions
or rendering some kind of public service).

Local governments cannot possibly have inherent powers as they are mere
creatures of Congress (the legislature). Whatever power they may validly exercise are
those delegated to them, or those that can be implied from the delegated powers.

Of these powers, the most pervasive and the least limitable is the police power, as
police power affects not only property or property rights, but even liberty, or life, for the
promotion of the general welfare, i.e., public health, public safety, public morals, public
order, etc.; unlike the two others (eminent domain and taxation) which affect only
property or property rights.

As often claimed, any human activity may be subject to the police power “from
the womb to the tomb.”

Requisites for a Valid Exercise of Police Power by the State:

1. Lawful purpose, i.e., the interest of the public in general as opposed to the
interest of a particular group;
2. Lawful means, i.e., the means employed must be reasonable - not whimsical,
capricious, oppressive or confiscatory.

The two must go hand-in-hand. In a democratic and republican State, the

“end may not justify the means employed.”

The BILL OF RIGHTS

 The rights enumerated in the Bill of Rights are the civil and political rights; they
are limitations on the powers of the State.

The Right to Due Process of Law (Sec. 1, Bill of Rights)

This is the right to invoke to question any act of government that appears to be
arbitrary, whimsical, capricious, oppressive, confiscatory, unreasonable, etc.

Two Aspects of Due Process:

1. Procedural due process – refers to the method or manner by which the law is
enforced, the essence of which are the twin requirements of notice or hearing,
or opportunity to be heard; and
2. Substantive due process – requires that the law itself is fair, reasonable and
just.

The “Void-for-Vagueness” Doctrine

The law should be declared void because it is vague. It is vague because it lacks
comprehensible standards that men of ordinary intelligence will probably have to guess
as to its meaning and differ in its application. That law (which is vague) is repugnant to
the Constitution in two respects: first, it violates due process as it fails to afford persons
fair notice of the conduct to avoid and second, it gives law enforcers unbridled discretion
in carrying out its provisions (in effect, it becomes an arbitrary flexing of the government’s
muscle). (Estrada vs. Sandiganbayan)

Indeed, holding a person liable for violating a law which he did not understand in
the first place simply because it is vague, that will be the height of unfairness.

However, the Court was quick to caution that the act must be utterly vague on its
face (that it cannot be clarified either by a saving clause or by statutory construction) for
this to be validly invoked.

The Doctrine of Overbreadth

It decrees that a governmental purpose to control or prevent activities

constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.

The factor that motivates courts to depart from the normal adjudicatory rules is
the concern with the “chilling” deterrent effect of the overbreadth statute on third parties
not courageous enough to bring suit. The Court assumes that an overbreadth law’s “very
existence may cause others not before the court to refrain from constitutionally protected
speech or expression.” An overbreadth ruling is designed to remove that deterrent effect
on the speech of those third parties. (Southern Hemisphere Engagement Network, Inc.
vs. Anti-Terrorism Council)

The Right to the Equal Protection of the Laws (Sec. 1, Bill of Rights)

This is the more appropriate right to invoke when dealing with acts of government
that appear to be discriminatory, because the equal protection clause is a guarantee
against any kind of discrimination or discriminatory conduct.
 Under this provision, persons or things similarly situated in terms of rights
conferred and obligations imposed should be treated similarly; conversely, if they are not
similarly situated, they should not be treated similarly.

Based on this definition, the equal protection clause does not guarantee absolute
equality; what it merely guarantees is “equality among equals.” For that matter, not all
classifications are invalid under the equal protection clause. There may be a valid
classification for as long as the classification meets the following requisites:

1. It must be based on substantial distinction;

2. It must be germane for the purposes of the law;
3. It must not be limited to existing conditions only; and
4. It must apply equally to all members of the same class.

Requisites for the Issuance of a Search Warrant or Warrant of Arrest (Sec. 2, Art. III,
1987 Constitution)

1. There must be probable cause;

2. To be determined personally by a judge;
3. After examination under oath or affirmation of the complainant (not of the
accused) and the witnesses he may produce and;
4. Particularly describing the place to be searched and the person or things to be
seized or arrested.

In connection with the last requirement, consider the ruling in Stonehill

vs. Diokno where the court clarified that the search warrant or warrant of arrest
must always be issued in connection with a specific offense; a general warrant
is not allowed (because a general warrant partakes of a nature of a “fishing
expedition” for evidence by the State).

Only a judge may issue a search warrant or warrant of arrest.

The finding of probable cause must be done personally by the judge. This is a
judicial function. He cannot abdicate the performance of this function in favor of the
prosecutor if he wanted to remain faithful to the Constitution. That’s why the judge is
not bound by the finding of probable cause by the prosecutor. In fact, he should not rely
solely on the finding of probable by the prosecutor. (Soliven vs. Makasiar; Allado vs.
Diokno)

Freedom of Expression (Sec. 4, Art. III, 1987 Constitution)

This is the hallmark of a democratic regime. This is what distinguishes us from

other regimes. People in a democratic and republican state participates in the democratic
processes – suffrage, elections, decision-making. They are free to express their views –
even contrary views, unpopular and unorthodox views.

A regime which is undemocratic is intolerant of different views. What it wants is

uniformity of thought. It suppresses dissent. A democratic regime allows multiplicity of
thought – “a marketplace of dueling ideas.” As held in one case: “the bedrock of freedom
of expression is freedom of thought, and it is best served by encouraging the marketplace
of dueling ideas. The marketplace of ideas demands that speech should be met by more
speech, for it is the spark of opposite speech, the heat of colliding ideas, that can fan the
embers of truth.”

The Extent of the Protection of the Freedom of Expression Clause

 Freedom of expression is a guarantee not only against censorship or prior restraint,
but as well as freedom from subsequent punishment.

The protection even extends to unpopular, unorthodox and rebellious views and
ideas. As learned in one case: “The protection extends even to freedom for the thought
we hate”.

Although a preferred right, yet, just like any other right, it is not absolute. It may
be subject to regulation.

“Content-based” Restrictions on Free Speech and “Content-neutral” Regulations

Content-based restrictions on free speech are restrictions on the speech itself, or

the contents of the speech. They are censorial in character and constitute a prior restraint
on freedom of expression and, therefore, come to the court with a heavy presumption of
unconstitutionality. To justify a content-based restriction, it is not enough that the State
is able to point out the substantive evil that it has the right to prevent or suppress, but
that the substantive evil must be of a clear-and-present danger type.

On the other hand, in content-neutral restriction, the restriction is not directed

against the speech itself, or the contents of the speech. It is merely directed against the
incidents of the speech, i.e., the manner, the time, and the place of the speech. They
do not come to the court with a heavy presumption of unconstitutionality. To justify the
restriction, it is enough that the State is able to point out the substantive which it has the
duty to prevent or suppress. The clear-and-present test is not required to justify content-
neutral restrictions because as explained in Osmena vs. Comelec, applying the clear-and-
present danger test in content-neutral regulations is “just like using a sledgehammer to
drive a nail when all that is required is just an ordinary hammer.” In Chavez vs. Sec. Raul
Gonzales, the Court clarified that we adopt the intermediate scrutiny approach in dealing
with content-neutral regulations – not the clear-and-present danger test.

Is the Public Assembly Act (Batas Pambansa Blg. 880) a content-based restriction or
content-neutral?

In Bayan v. Ermita, the SC ruled that B.P. Blg. 880 (The Public Assembly Act) is
merely a content-neutral restriction as it does totally prohibit public assemblies; it merely
regulates them. In fact, there are even instances in said law that allow the holding of
rallies or public assemblies even without permit from the local authorities. The purpose
of the permit is merely regulatory.

What are the instances when one may hold a rally or public assembly without permit from
the local authorities?

1. If the rally is to held in a private place (only consent of the owner of the private
place is required);
2. If the rally is to be held in the campus of a state college or university; and
3. If the rally is to be held in a freedom park (for this reason all cities and
municipalities are mandated by the Public Assembly Act [B.P. Blg. 880] to
establish or designate a freedom park where people may hold a rally even
without permit).

Political rallies during the campaign period are not governed by the Public
Assembly Act, but by the Omnibus Election Code (B.P. Blg. 881); Picketing during
labor strikes are governed by the Labor Code, not by the Public Assembly Act;
 holding of religious processions or military parades are governed by local
ordinances.

The “Maximum Tolerance” Policy

This is the policy of the law in dealing with rallies or public assemblies, or even in
the dispersal thereof. As defined, it is the highest degree of restraint that the police, the
peace-keeping officers or the military must observe in dealing with rallies or public
assemblies, or even in the dispersal thereof (B.P. Blg. 880).

Under this maximum tolerance policy, for as long as the demonstrators are
unarmed, and they do not exhibit overt acts of violence – the police or authorities should
not interfere.

Freedom of Religion (Sec. 5, Art III, 1987 Constitution)

This is another preferred right (like freedom of expression) as it deals with man’s
relationship with his Creator.

Two Aspects of Freedom of Religion

Freedom to Believe – Absolute; may not be interfered with by the State (for as
long as the belief is confined within the realm of thought of the believer);

Freedom to Act on One’s Belief – May be interfered with by the State. The moment
the believer begins to externalize on his religious beliefs and it will now affect public
safety, public health, public morals, public welfare – the State may now interfere, usually
under the police power.

The Three Important Clauses under Section 5 on Freedom of Religion (Bill of Rights)

There are three important clauses in Sec. 5 of the Bill of Rights. The first sentence
is known as the “non-establishment” clause”; the second sentence is the “free exercise
of religious profession and worship” clause and; the third sentence is known as the “no
religious test” clause.

Under the “non-establishment” clause, the State is not supposed to establish any
religion; it must not support one particular religion as against other religions. In matters
of religious differences, the State enjoys no banquet of options – neutrality alone is its
fixed and immovable stance.

At bottom, what our non-establishment clause calls for is “government

neutrality in religious matters.” Clearly, “governmental reliance on religious
justification is inconsistent with this policy of neutrality.” (Ang Ladlad – LGBT Party
vs. Comelec)

The Separation of Church and State Doctrine (Sec. 6, Art. II, 1987 Constitution)

If what are involved are purely ecclesiastical affairs of the Church, the State may
not interfere under this doctrine.

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

worship of the church, or the adoption and enforcement within a religious
association of needful laws and regulations for the government of the membership,
and the power of excluding from such associations those deemed not worthy of
 membership.” Based on this definition, an ecclesiastical affair involves the
relationship between the church and its members and relate to matters of faith,
religious doctrines, worship and governance of the congregation. To be concrete,
examples of this so-called ecclesiastical affairs to which the State cannot meddle
are proceedings for excommunication, ordinations of religious ministers,
administration of sacraments and other activities with attached religious
significance. (Pastor Dionisio V. Austria vs. NLRC)

The Right to Travel (Sec. 6, Art. III, 1987 Constitution)

The Right to Travel may only be impaired in the interest of national security, public
safety, or public healthy, as may be provided by law. (Sec. 6, Art. III)

In Genuino vs. Sec. De Lima, the SC declared DOJ Circular No. 41 (Authorizing the
Secretary of Justice to issue Hold Departure Orders [HDOs], Watch List Orders [WLOs],
and Allow Departure Orders [ADOs] unconstitutional as it violates the right to travel.
Under the Constitution, for the right to travel to be impaired in the interest of national
security, public safety, or public health, there must be law (an act of Congress). (Sec. 6,
Art. III, 1987 Constitution). A mere administrative regulation (DOJ Circular No. 41) is not
a law.

There is no legal basis for the Department of Justice (DOJ) to issue DOJ Circular
No. 41.

The Right to Bail

Why was Senator Enrile allowed to post bail despite the fact that he was charged
with plunder, punishable by reclusion perpetua?

That is because he was able to prove, to the satisfaction of the court, that once
granted bail: (1) he will not be a flight risk, or a danger to the community and, (2) there
exist special, humanitarian and compelling circumstances that will justify the grant to
him. After all, the purpose of the bail is to insure the presence of the accused during
trial, or as ordered by the court.

Apparently, this ruling in Enrile vs. Sandiganbayan followed the ruling in

Government of Hongkong Special Administrative Region vs. Judge Olalia (2007) where
the Court allowed an extraditee to post bail in an extradition case provided that he was
able to prove that once granted bail he will not be flight risk or a danger to the community
and, that there exist special, humanitarian and compelling circumstances that will justify
the grant of bail to him by a clear and convincing evidence.

Immunities and Privileges of Members of Congress (Sec.11, Art. VI, 1987 Constitution)

1. Privilege from Arrest - A Senator or Member of the House of Representatives

shall, in all offenses punishable by not more than six years imprisonment, be
privileged from arrest. (1st sent., Sec. 11)

2. Freedom of Speech and Debate – No member shall be questioned nor be held

liable in any other place for any speech or debate in the Congress or in any
committee thereof. (2nd sent., Sec. 11)

This is an absolutely privileged communication and, therefore, not

actionable even if the author acted in bad faith. (Borjal vs. CA)
Incompatible Office and Forbidden Office (Sec. 13, Art. VI, 1987 Constitution)

No Senator or Member of the House of Representatives may hold any other office
or employment in the government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations of their subsidiaries, during his
term without forfeiting his seat. (1st sent., Sec.13 - Incompatible office)

Neither shall he be appointed to any office which may have been created or the
emoluments thereof increased during the term for which he was elected. (2nd sent., Sec.
13 - Forbidden office)

A Member of Congress may actually be validly appointed to an incompatible

office, but the moment he accepts the appointment he forfeits his seat in the
Congress. On the other hand, with respect to a forbidden office, he may not be
validly appointed thereto, even is he is willing to forfeit his seat in the Congress.

Process of Legislation

Is legislative power exclusively vested in the Congress?

No. The people have expressly made a reservation to directly enact laws by the
provision on initiative and reservation (Sec. 1, Art. VI, 1987 Constitution). For this reason,
Congress enacted R.A. No. 6735 (The Initiative and Referendum Law). The provisions of
R.A. No. 6735 dealing with Initiative on Statutes are the provisions implementing the
reservation made by the people to directly enact laws under Sec. 1, Art. VI, 1987
Constitution.

A Bicameral Congress

We have a bicameral Congress consisting of a Senate and a House of

Representatives (Sec. 1, Art. VI, 1987 Constitution). These two are co-equal bodies;
there is no supremacy of one house over the other.

The Bicameral Conference Committee

A mechanism to compromise differences between the Senate and the House of

Representatives (Philippine Judges Association vs. Secretary Prado). As the term
“bicameral” suggests, the members of the Committee shall come from both the Senate
and the House of Representatives.

By the nature of its function, a bicameral conference committee is capable of

producing unexpected results – results which sometimes may even go beyond its own
mandate (Tolentino vs. Secretary of Finance).

The Bills that are Required to Originate Exclusively in the House of Representatives (Sec.
24, Art. VI, 1987 Constitution)

Since we have a bicameral Congress, there are certain bills that are required to
originate exclusively in the House of Representatives. These are:

1. Appropriations bill;
2. Private bill;
3. Revenue or tariff bill;
4. Bill authorizing increase in public debts; and
5. Bill of local application.
 Although these bills are required to originate exclusively in the House of
Representatives, yet the Senate has the power to propose or concur with
amendments (Sec. 24, Art. VI). After all, what is really required to originate
exclusively in the House of Representatives is not the law itself – but only the bill
(Tolentino vs. Secretary of Finance).

The “One-Subject-One-Title” Rule

Every bill passed by the Congress shall embrace only one subject which shall be
expressed in the title thereof. (Sec. 26[1], Art. VI, 1987 Constitution)

The objectives of this rule are:

1. To prevent hodge-podge or log-rolling legislation;

2. To avoid surprises upon the legislators; and
3. To fairly apprise the people of the subject of legislation that is being considered.

The title of the bill need not be an index or catalog of the contents thereof;
there is substantial compliance for as long as the provisions are germane or related
to the main subject matter of the bill – which is the one required to be expressed
in the title of the bill.

The “Three-Readings-on-Separate-Days” Rule

No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage (Sec. 26 [2], Art. VI, 1987
Constitution).

Exception to this rule is when the President certifies to the necessity of the
immediate enactment of a bill to meet a public calamity or emergency.

The moment the President issues a certification to the necessity of the

immediate enactment of the bill to meet a public calamity or emergency, the bill
need not undergo the three-readings-on-separate days requirement; it need not
even comply with the other requirement that printed copies of the bill in its final
form have been to the Members deliberating on said bill three days before its
passage (Tolentino vs. Secretary of Finance).

What constitutes a public calamity or emergency that justifies the

presidential certification as to the necessity of the immediate enactment of a bill
is a political question and, therefore, not subject to judicial review (Tolentino vs.
Secretary of Finance).

The Enrolled Bill Doctrine

Once a bill has become an enrolled bill, it becomes conclusive upon the courts as
to its due enactment, so that courts may no longer validly inquire into whether the bill
has been duly and regularly enacted.

Take note that an enrolled bill contains the signatures of the Senate
President and that of the Speaker of the House of Representatives, as well as the
certifications of the respective Secretaries of both Houses of Congress that the bill
has been duly and regularly enacted. Courts should give due respect to the
 signatures of the highest officials of co-equal branches of the government
appearing therein.

Because of the enrolled bill doctrine, the enrolled bill must necessarily prevail over
the records in the legislative journal – except only as to matters which, under the
Constitution, are required to be entered in the journal, because as to them they become
conclusive upon the courts.

What matters are, under the Constitution, required to be entered in the journal (and,
therefore, become conclusive upon the courts)?

1. The “yeas” and the “nays” upon the enactment of a bill;

2. The “yeas” and the “nays” on any question, upon request of one-fifth of all the
Members present;
3. The President’s objections to the bill which he has vetoed; and
4. The “yeas” and the “nays” upon repassing a bill which the President has vetoed.
(Arroyo vs. De Venecia)

The Rule on the Presentment of Bill to the President

From the Congress, the bill will have to be presented to the President for his
signature. What are the options available to the President upon receiving a bill from
Congress?

First, he signs the bill and the bill becomes a law;

Second, he vetoes the bill (and the bill does not become a law); and
Third, if within thirty days upon receipt of the bill from Congress, the President
fails to act on the bill, the bill automatically becomes a law (by presidential inaction).

The Presidential Veto

Once the President vetoes a bill, he is required to send the bill back to the House
where it originated, together with his veto message. Congress may decide to override
the veto by two-thirds vote of its members.

There are two kinds of presidential veto:

1. The general veto (Sec. 27, par. 1, Art. VI, 1987 Constitution) and;
2. The “item” or “line” veto (Sec. 27, par. 2, Art. VI, 1987 Constitution).

The rule is that the President may not veto a provision in a bill without
vetoing the entire bill itself. As clarified in Bengzon vs. Drilon “the executive must
veto a bill in its entirety or not at all. He or she may not act like an editor crossing
out specific lines, provisions or paragraphs in a bill that he or she dislikes. In the
exercise of the veto power, it is generally all or nothing.”

However, with respect to an appropriation, revenue or tariff bill, he is

expressly allowed to veto an item or items in said bill but the veto will not affect
the item or items to which he does not object (Sec. 27, par. 2, Art VI, 1987
Constitution).

Two Types of Congressional Investigations (Senate vs. Ermita)

Inquiry in Aid of Legislation (Sec. 21, Art. VI, 1987 Constitution) – which is intrinsic
in the grant of legislative power itself to Congress by the Constitution, for Congress cannot
be expected to enact good laws if it is denied the power to investigate (Arnault vs.
Nazareno).

The Question Hour (Sec. 22, Art. VI, 1987 Constitution) – which an imported
concept from a parliamentary government, not a regular feature of a presidential form of
government, hence, appearance thereof is not really mandatory. (Senate vs. Ermita)

Limitations on the Power of Each House of Congress to Conduct Inquiries in Aid of

Legislation (under Sec. 21, Art. VI)

1. The inquiry must be in aid of legislation;

2. It must be conducted in accordance with the duly published rules of procedure
of a House of Congress conducting the inquiry; and
3. The rights of persons appearing in or affected by such inquiry shall be
respected. (Bengzon vs. Senate Blue Ribbon Committee)

This power of each House of Congress to conduct inquiry in aid of legislation

is subject to judicial review; it is not a political question (Bengzon vs. SBRC).

Legislative Contempt

When a House of Congress conducts inquiry in aid of legislation, it may cite persons
in contempt for not appearing or, for not cooperating, upon being summoned; it may
even send him to prison. This is an exception to the nature of contempt as a judicial
prerogative (based on separation of powers).

How long shall he remain in prison?

Until the inquiry is terminated. The inquiry shall be terminated (1) upon
the approval or disapproval of the Committee Report, or (2) upon the final
adjournment of the session of Congress. (Arvin Balag vs. Senate)

The Filipino First Policy (Sec. 10, par. 2, Art. XII, 1987 Constitution)

In the grant of rights, privileges and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipino. (Manila Prince Hotel
vs. GSIS)

This is a self-executing provision.

Meaning of Patrimony

Patrimony simply means heritage. National patrimony refers not only to

the natural resources of the Philippines, but as well as the cultural heritage of the
Filipino people. (Manila Prince Hotel vs. GSIS)

Amendments or Revisions of the Constitution (Art. XVII, 1987 Constitution)

There are three ways of directly proposing amendments to, or revision of, this
Constitution:

1. Congress, by three-fourth vote of all its Members - Congress here will be acting
as a constituent assembly – a non-legislative function of Congress.
 2. Constitutional Convention, a body separate and distinct from that of the
Congress (whose members shall be elected by the people of their respective
districts).

There are two ways by which a Constitutional Convention may be convened:

Congress itself may directly call a constitutional convention by two-

thirds vote of all its members; or

Instead of directly calling a constitutional convention, Congress may

submit the issue of calling such convention to the people, by a majority vote
of all its members.

3. People’s Initiative, via a petition proposing amendment to be signed by at least

12 % of the total number of registered voters, provided that, in each legislative
district, at least 3 % of registered voters thereof shall sign the petition.

People’s initiative is limited only to proposing amendments to the

Constitution – not a revision thereof. (Santiago vs. Comelec)

Any proposed amendment or revision shall be submitted to the people in a

plebiscite to be ratified by majority of the votes cast thereof.

Public International Law (1 Question)

Sources of International Law (Article 38, Statute of the International Court of Justice)

Conventions (or Treaties)

International Customs
General Principles of Law observed by Civilized Nations
Judicial Decisions
Teachings of the most authoritative publicists of the various nations

The first three are the primary sources of international law; the last two are the
subsidiary sources of international law.

With respect to treaties or conventions, under the Vienna Convention on the Law
on Treaties, a treaty that violates a jus cogens norm should be invalidated.

Jus cogens literally means “compelling law.”

A jus cogens norm is a peremptory (mandatory) norm of general

international law recognized and accepted by the international community of
States as a whole as a norm that does not permit of any derogation and which can
be modified or replaced only by a subsequent norm of general international law of
the same character. Examples: the prohibition against the use of force under the
UN Charter; the law on genocide.

Between an obligation of a State towards another State in a treaty and an erga

omnes obligation, the latter must prevail.

Erga omnes literally means “in relation to the whole.” An erga omnes
obligation is an obligation of a State towards the international community of States
 as a whole. Hence, it is superior over an obligation of a State towards another
State in a treaty.

International Customs

What distinguishes international custom from usage is the “opinio juris” (the
conviction that it is obligatory and right). If the act performed is coupled with the
conviction that it is obligatory and right, it becomes an international custom; absent such
conviction, it is a mere usage.

Relationship with Domestic Law

Doctrine of Incorporation
Doctrine of Transformation

One of the oldest principles of international law which by the doctrine of

incorporation automatically forms part of our laws is “pacta sunt servanda.” (Treaties
must be observed, or must be complied with, in good faith.) Under this rule, a State that
enters into treaty with other States, may not advance the provisions of its constitution or
of its laws in order not to comply with its obligations under that treaty; in fact, under this
rule, a State is bound to make the necessary changes or modifications in its laws in order
to comply with its obligations under a treaty. (Tanada vs. Angara)

With respect to treaties, they become part of Philippine laws by the doctrine of
transformation because of Sec. 21, Art. VII of the Constitution which substantially
provides that for a treaty to be valid and binding upon the Philippines, it will require
concurrence by two-thirds vote of all the members of the Senate.

However, with respect to international customs and general principles of laws

observed by civilized nations, they become part of Philippine laws by the doctrine of
incorporation as expressed in Sec. 2, Art. II of the Constitution which provides that the
Philippines adopts the generally accepted principles of international law as part of the law
of the land. (Pangilinan vs. Cayetano)

Good luck and may God bless you all!