2019 POLITICAL LAW REVIEW IN A CAPSULE 1

BY E. Z. TRESPECES 2
______________________________________________________

DEMYSTIFYING THE CONSTITUTION

A prominent scholar plainly and perfectly describes the function of Constitution –

“to create a national government and divides power among the branches … The
division of powers among the branches was designed to create a system of checks
and balances and lessen the possibility of tyrannical rule.”3

Liberty, government, and sovereignty have been the breath of life of a constitution
– a liberty that sets forth the civil and political rights plus limitations on powers of
government to secure enjoyment of these rights; a government composed of
organization, structure, enumerating its powers, laying down rules about its
administration, and defining the electorate; and sovereignty that points out formal
modes of changing the constitution.4

A constitution may be written or unwritten, evolved or enacted, and rigid or

flexible. England, Israel, New Zealand, and Canada are among the states which
have unwritten constitutions.

The 1987 Philippine Constitution is written, enacted or conventional, and rigid

(can be amended by a formal and difficult process). A good written constitution is
broad, brief, and definite.

One upside of a written, conventional and rigid constitution is permanence; it “can

resists capricious whimsical change dictated not by legitimate needs but passing
fancies” like the perennial issue of death penalty.

Its downside is it unable to adjust to the needs of the changing times justified by
new conditions and circumstances. For example, how can it face the globalization
trend against the national interest (economic provisions) will go through a sticky
situation.

Should a constitution be interpreted progressively or retrogressively? Constitution

must change with the changing times to promote the progress of the people.

In case of doubt, the constitution must be considered self-executing instead of non-

self-executing; mandatory instead of directory; and prospective instead of
retrospective.5

THE NATIONAL TERRITORY

1
All rights reserved (2019).
2
Presiding Judge, MTCC, Branch 10, Iloilo City; former Executive Judge, MTCC, Iloilo City.
3
Aspen Student Treatise for Constitutional Law: Principles and Policies, Erwin Chemerinsky, 5 th Ed. Kindle Edition
(2015).
4
Constitutional Law, Cruz, 1981.
5
Note 4.
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________________________

Philippines is an archipelago (“a group of islands, including parts of islands,

interconnecting waters and other natural features which are so closely interrelated
that such islands, waters and other natural features form an intrinsic geographical,
economic and political entity, or which historically have been regarded as such.”) 6

So it adheres to the archipelagic doctrine as an archipelagic state (Philippines,

among other states has been qualified as archipelagic state by UNCLOS on
December 10, 1982 in Jamaica).

Scope of the national territory: (1) the Philippine archipelago (consisting of

territorial, fluvial, and aerial domains); (2) all other territories over which the
Philippines has sovereignty or jurisdiction (consisting of territorial, fluvial, and
aerial domains); (3) the territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas corresponding to the Philippine archipelago and all
other territories over which the Philippine has sovereignty or jurisdiction.

Rep. Act No. 9522 is the Philippine’s Baseline Law defining the archipelagic
baselines of the Philippines. Also, it defines two more group of island called as
“Regime Islands” consistent with Article 21 of the UN Convention on the Law of
the Sea (UNCLOS) – (1) the Kalayaan Island Group (P.D. No. 1596); and (2) Bajo
de Masinloc or Scarborough Shoal (Read excerpts from RP v. PROC below).

PERMANENT COURT OF ARBITRATION RULING

REP. OF THE PHIL. V. PEOPLE’S REP. OF CHINA7
CASE NO. 2013-19, JULY 12, 2016

“Historic Rights and the ‘Nine-Dash Line’: … Accordingly, the Tribunal

concluded that, to the extent China had historic rights to resources in the waters of
the South China Sea, such rights were extinguished to the extent they were
incompatible with the exclusive economic zones provided for in the Convention.
The Tribunal also noted that, although 2 Chinese navigators and fishermen, as well
as those of other States, had historically made use of the islands in the South China
Sea, there was no evidence that China had historically exercised exclusive control
over the waters or their resources. The Tribunal concluded that there was no legal
basis for China to claim historic rights to resources within the sea areas falling
within the ‘nine-dash line’.

Status of Features: … Accordingly, the Tribunal concluded that none of the

Spratly Islands is capable of generating extended maritime zones. The Tribunal
also held that the Spratly Islands cannot generate maritime zones collectively as a
unit. Having found that none of the features claimed by China was capable of
generating an exclusive economic zone, the Tribunal found that it could—without
delimiting a boundary—declare that certain sea areas are within the exclusive
economic zone of the Philippines, because those areas are not overlapped by any
possible entitlement of China.
6
UNCLOS, Article 46, Part IV, May 13, 2013.
7
www.pca-cpa.org
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Lawfulness of Chinese Actions: … Having found that certain areas are within the
exclusive economic zone of the Philippines, the Tribunal found that China had
violated the Philippines’ sovereign rights in its exclusive economic zone by (a)
interfering with Philippine fishing and petroleum exploration, (b) constructing
artificial islands and (c) failing to prevent Chinese fishermen from fishing in the
zone. The Tribunal also held that fishermen from the Philippines (like those from
China) had traditional fishing rights at Scarborough Shoal and that China had
interfered with these rights in restricting access. The Tribunal further held that
Chinese law enforcement vessels had unlawfully created a serious risk of collision
when they physically obstructed Philippine vessels.

Harm to Marine Environment: The Tribunal considered the effect on the marine
environment of China’s recent large-scale land reclamation and construction of
artificial islands at seven features in the Spratly Islands and found that China had
caused severe harm to the coral reef environment and violated its obligation to
preserve and protect fragile ecosystems and the habitat of depleted, threatened, or
endangered species. The Tribunal also found that Chinese authorities were aware
that Chinese fishermen have harvested endangered sea turtles, coral, and giant
clams on a substantial scale in the South China Sea (using methods that inflict
severe damage on the coral reef environment) and had not fulfilled their
obligations to stop such activities.

Aggravation of Dispute: Finally, … The Tribunal found, however, that China’s

recent large-scale land reclamation and construction of artificial islands was
incompatible with the obligations on a State during dispute resolution proceedings,
insofar as China has inflicted irreparable harm to the marine environment, built a
large artificial island in the Philippines’ exclusive economic zone, and destroyed
evidence of the natural condition of features in the South China Sea that formed
part of the Parties’ dispute.”

DECLARATION OF PRINCIPLES AND STATE POLICIES

A. PRINCIPLES:
 Philippines is a democratic and republican state
 Civilian authority is supreme over the military
 Prime duty is to serve and protect the people
 Promotion of the general welfare
 Separation of church and state

B. STATE POLICIES
 Pursuing an independent foreign policy
 Pursuing a policy of freedom from nuclear weapons
 Promoting social justice
 Guaranteeing full respect for human rights
 Recognizing sanctity of family life and family
 Recognizing the vital role of the youth in nation-building
 Recognizing the role of women in nation-building
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 Protecting and promoting right to health

 Protecting and advancing right to balanced and healthful ecology
 Giving priority to education, science and technology, arts, culture, and sports
 Affirming labor as primary social force
 Developing a self-reliant and independent national economy
 Recognizing the indispensable role of the private sector
 Promoting comprehensive rural development and agrarian reform
 Recognizing and promoting the rights of indigenous communities
 Encouraging non-governmental, community-based, or sectoral organization
 Recognizing the vital role of communication and information in nation-
building
 Ensuring the autonomy of local governments
 Guaranteeing equal access to opportunities for public service, prohibits
political dynasties as may be defined by law.
 Maintaining honesty and integrity in public service and takes positive and
effective measures against graft and corruption
 Adopting and implementing a policy of full disclosure of all its transactions
involving public interest.

Police power Power of eminent Power of taxation

Inherent and plenary
power of a sovereign
to make all laws
necessary and proper
to preserve the public
security, order, health,
morality, and justice.8
Main purpose is to
regulate a behavior or
conduct.11
Lawful subjects and
lawful means tests
apply to determine if it
validly enacted.13
(“The test or standard,
as always, is reason.
The police power
legislation must be
firmly grounded on
8
Black’s Law Dictionary, Garner, 9th Ed. 2009, p. 1276.
9
Id. at p. 601
10
Planters Product, Inc. v. Fertiphil, Corp., March 14, 2008, G.R. No. 166006.
11
Id.
12
Republic v. Heirs of Borbon, G.R. No. 165354, January 12, 2015.
13
Id.
domain
Inherent power of a Power of taxation is
governmental entity to the [inherent] power to
take privately owned levy taxes to be used
property, esp. land, for public purpose.10
and convert it to public
use, subject to
reasonable
compensation for the
taking.9
The taking is for To generate revenues.
public use.12
Section 19 of R.A. No. It is subject to inherent
7160 delegates to and constitutional
LGUs the power of limitations.16 (Taxes
eminent domain as must be “uniform and
long as it meets certain equitable” and
requirements.15 (An “progressive”17 not
ordinance is enacted “confiscatory or
by the local legislative arbitrary”18)
council authorizing the
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public interest and local chief executive,

welfare, and a [o]n behalf of the local
reasonable relation government unit, to
must exist between exercise the power of
purposes and means.)14 eminent domain or
pursue expropriation
proceedings over a
particular private
property; for public
use, purpose or
welfare, or for the
benefit of the poor and
the landless; there is
payment of just
compensation, as
required under Section
9, Article III of the
Constitution, and other
pertinent laws; and a
valid and definite offer
has been previously
made to the owner of
the property sought to
be expropriated, but
said offer was not
accepted.

Generally, it is Local government can

exercised by the impose taxes and fees
national government; subject to limitations
but it can be delegated, as the Congress may
within limits, to local provide.20
governments.19

Social Justice is one of the significant features of the 1987 Constitution to face the
perennial issues of poverty and inequality that demeans human dignity. Social
justice is “the equalization of economic, political and social opportunities with
special [focus] on the duty of the State to tilt the balance of social forces by
favoring the disadvantaged in life”. (J. BERNAS)

14
Ichong v. Hernandez, G.R. No. L-7995, May 31, 1957.
15
Beluso v. Municipality of Panay (Capiz), G.R. No. 153974, August 7, 2006.
16
Note 8.
17
Article VI, Section 28, 1987 Constitution.
18
Commissioner v. Algue, G.R. No. L-288896, February 17, 1988.
19
Section 16, Rep. Act No. 7160 (Local Government Code of 1991)
20
Article X, Section 5, 1987 Constitution.
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The right to a balance and healthful ecology took a center stage in Oposa v.
Factoran.21 Challenging the logging policies of the government, it empowered
minor children (representing “their generation and generations yet unborn”) as
petitioners who have the legal standing to enforce that right. This framework gave
birth to “enforceable rights” that even minor children have the claim to make it
happen.

The “enforceable right” under the Oposa Doctrine has been applied later in Laguna
Lake Development Authority v. Court of Appeals22 (to stop dumping of garbage and
pollutants on the Laguna Lake area) and MMDA v. Residents of Manila Bay23 (by
way of mandamus, the government has been required to clean up Manila Bay and
its surroundings).

BILL OF RIGHTS
______________________________

DUE PROCESS & EQUAL PROTECTION CLAUSE

Government’s power is enormous and powerful. The Bill of Rights strikes the
balance between the awesome power of the government and individual rights − to
avoid tyranny or tyrannical bents of the government.

Some illustrations:

In Carlos Superdrug Corp. v. DSWD,24 granting senior citizens of 20% discounts

for medical and dental services, among others, under the expanded Senior Citizens
Act of 2003 is a valid exercise of police power; property rights must yield to
general welfare; the law has intended to maximize the contribution of senior
citizens to nation-building, granting them benefits and privileges to improve their
well-being, which the State has considered an integral part of the society. Having
failed to show proof that the 20% discount (which is tax deductible from gross
income, not for every receipt that Carlos Superdrug had argued) is confiscatory,
the law is presumed valid. (Note: it passed the lawful-subject-and lawful-means
test)

But, in Ynot v. IAC,25 it declared that E.O. No. 626-A was an invalid exercise of
police power because it failed to show if how can the measure of prohibiting
moving or transferring of carabaos from one province to another would prevent
indiscrimate slaughtering. Penalty is outright confiscation of carabaos and
carabeefs by police; the measure does not provide for trial, they are immediately
impounded by the police and declared forfeited for the government. (Note: it failed
to pass the lawful-subject-and-lawful-means test)
21
G.R. No. 101083, July 30, 1993.
22
G.R. Nos. 120865-71, December 7, 1995.
23
G.R. No. 171947-48, December 18, 2008.
24
G.R. No. 166494, June 29, 2007.
25
G.R. No. 74457, March 20, 1987.
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EQUAL PROTECTION OF THE LAW

Generally, “the government must treat a person or class of persons the same as it
treats other person or classes in like circumstances”. 26 But equal protection does
not prohibit classification; it “does not require that all persons be dealt with
identically, but it does require that a distinction made have some relevance to the
purpose for which the classification is made.”27

The classification must be reasonable. The classification must hurdle the

reasonable test: (a) it must rest on substantial distinctions; (b) germane to the
purpose of the law; (c) not limited to existing conditions only; and (d) apply
equally to all members of the same class.28

In Central Bank Employees v. Bangko Sentral,29 it held that based on the legislative
deliberations the law intends that officers (with Salary Grade 20 and above) should
be exempted from the Salary Standardization Law to address the BSP’s lack of
competitiveness for attracting competent officers and executives; it was not
intended to discriminate the rank-and-file. But in the end, it declared that the
continued enforcement of a valid law (Article II, Section 15c, New Central Bank
Act) as unconstitutional because of significant changes in circumstances under the
doctrine of relative unconstitutionality (“While R.A. No. 7653 started as a valid
measure well within the legislature's power, we hold that the enactment of
subsequent laws exempting all rank-and-file employees of other GFIs leeched all
validity out of the challenged proviso.”)

WRIT OF AMPARO

“The petition for a writ of amparo is a remedy available to any person

whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof.” (SECTION 1) 30

The writ only covers protection of rights to life, liberty and security. It is basically
meant to protect and guarantee the right to life, liberty and security of persons, free
from fears and threats that vitiate the quality of life. The right to security includes
freedom from fear; a guarantee of bodily and psychological integrity or security;
and guarantee of protection of one’s right by the government.

26
Note 9, at p. 616.
27
Baxtrom v. Herold, 383 U.S. 107, 111, 86 S. Ct. 760 (1966) cited in Note 9.
28
People v. Cayat, G.R. No.L-45987, May 5, 1939.
29
G.R. No. 148208, December 15, 2004.
30
A.M. No. 07-9-12-SC (September 25, 2007)
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What are situations that are not covered by the writ? – Matters that are “purely
property or commercial”; and those anchored on “amorphous and uncertain
grounds”.31

In Caram v. Atty. Segui,32 the mother’s petition for a writ has been denied when it
turned out that what was involved was the issue of child custody of a child and
parental rights over a child who has been under DSWD’s care or legally considered
a ward of the State, which the Amparo Rule cannot be applied.

In Lozada v. Pres. Macapagal-Arroyo,33 it explained that “threat” required under

Section 5(c) must be a “continuing threat” which Mr. Lozada has failed to prove.
Petition is equivalent to administrative proceedings although judicially conducted;
hence, the standard of proof required is substantial evidence (READ SECTION 17).

In Navia v. Pardico,34 an Amparo petition may lie against a private individual but
government involvement in the disappearance remains an indispensable element.
To be considered within the compass of the Amparo Rule, there must be showing
that the security guards and their principal have been working for the government
or have links to some covert police, military or governmental operation.

But in Razon v. Tagitis, 35it recognized the disappearance of Eng. Tagitis, an

enforced disappearance covered by the Amparo Rule; holding the PNP-CIDG
responsible for disclosure of material facts and to investigate the Tagitis’
disappearance, and show its investigation report to the court.

WRIT OF HABEAS DATA

The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful
act or omission of a public official or employee or of a private individual or
entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved
party. (SECTION 1)36

PURPOSE

“…to provide a forum to enforce one’s right to the truth and to informational
privacy, thus safeguarding the constitutional guarantees of a person’s right to life,
liberty and security against abuse in this age of information technology”. 37 The
focal point of the Habeas Data Rule is to protect the right to privacy.

31
Masangkay v. Hon. De Rosario, G. R. No. 182484, June 17, 2008.
32
G.R. No. 193652, August 5, 2014.
33
G.R. Nos. 184379-80, April 24, 2012.
34
G.R. No. 184467, June 19, 2012.
35
Razon v. Tagitis, G.R. No. 182498, December 3, 2009.
36
A.M. No. 08-1-16-SC (January 22, 2008)
37
Meralco v. Gopez Lim, G.R. No.
9 /POINTERS IN POLITICAL LAW REVIEW

In Meralco v. Gopez Lim,38 the issue was: may an employee avail of the writ after
her employer had decided to transfer her workplace after she received threats from
co-workers because of a letter accusing her of disloyalty to the company without
informing her of the details of the investigation and prays to stop her transfer? The
Habeas Data Rule does not apply; the matter is a labor dispute belonging to the
domain of the Labor Arbiter and NLRC. Next, there was no showing of violation
of her right to privacy (life, liberty, security) by the Meralco management; it was
purely speculative.

WRIT OF KALIKASAN (A.M. NO. 09-6-8-SC) 39

The writ is a remedy available to a natural or juridical person, entity authorized by

law, people’s organization, non-governmental organization, or any public interest
group accredited by or registered with any government agency, on behalf of
persons whose constitutional right to a balanced and healthful ecology is violated,
or threatened with violation by an unlawful act or omission of a public official or
employee, or private individual or entity, involving environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces.

Purpose: it is an extraordinary remedy that “covers environmental damage of such

magnitude that will prejudice the life, health or property of inhabitants in two or
more cities or provinces. The writ is available against an unlawful act or omission
of a public official or employee, or private individual or entity”.

Requisites: “(1) there is an actual or threatened violation of the constitutional right

to a balanced and healthful ecology; (2) the actual or threatened violation arises
from an unlawful act or omission of a public official or employee, or private
individual or entity; and (3) the actual or threatened violation involves or will lead
to an environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.”40

In LAMI v. Agham Party List,41 the petition for the issuance of the privilege of Writ
of Kalikasan has been denied because the petitioner failed to prove the
environmental laws violated; and the magnitude of the damage caused by LAMI in
constructing a port facility in Zambales and its surrounding area. (Notably, by the
nature of the writ, expert findings is necessary and weighted in favor on the party
who can prove or disprove damage)

GUIDELINE ON WARRANTLESS DRUG TEST

Candidates for national office Unconstitutional (It adds to the

exclusive qualification prescribed by
the Constitution)42
Local candidates for local office Unconstitutional (unreasonable,
38
Id.
39
Approved on April 13, 2010.
40
LAMI v. Agham Party List, G. R. 209165, April 12, 2016.
41
Id.
42
Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870, 158633, 161658, November 3, 2008.
10 /POINTERS IN POLITICAL LAW REVIEW

oppressive to privacy)
Students Constitutional (“it is within the
prerogative of educational
institutions to require, as a condition
for admission, compliance with
reasonable school rules and
regulations and policies. … the right
to enroll is not absolute; it is subject
to fair, reasonable, and equitable
requirements.”)43

Employees (both public and private) Constitutional (“In the case of

private and public employees, the
constitutional soundness of the
mandatory, random, and
suspicionless drug testing proceeds
from the reasonableness of the drug
test policy and requirement.)44

Persons charged before the Unconstitutional (“…a blatant

prosecution office attempt to harness a medical test as a
tool for criminal prosecution,
contrary to the stated objectives of
RA 9165… would violate a persons'
right to privacy guaranteed under
Sec. 2, Art. III of the Constitution. …
the accused persons are … forced to
incriminate themselves.”)45

WAIVER OF RIGHT

Under the amendatory Rule 114, Section 26 of the Revised Rules on Criminal
Procedure, an accused who has applied for bail does no mean anymore that he has
waived his right to challenge the validity of a warrant for his arrest.46
But, how about an accused after he has been arraigned, can he still assail the
validity of a warrant for his arrest? Too late; it amounts to a waiver; he should have
objected to it before he enters a plea.47

In another case, several accused who failed to move to quash the Information
before their arraignment were estopped from assailing the illegality of their arrests;
more so, if they have participated in the trial, they have waived their rights to
questions the legality of their warrantless arrests.
43
Note 42.
44
Id.
45
Id.
46
Okabe v. Judge De Leon, G.R. No. 150185, May 27, 2004.
47
Cabiles v. People, G. R. No. 112035, January 16, 1998.
11 /POINTERS IN POLITICAL LAW REVIEW

Allowable warrantless searches:

o Warrantless search incidental to a lawful arrest

o Seizure in plain view
o Search of a moving vehicle
o Consented warrantless search
o Customs search or seizure of goods concealed to avoid payment of duties
o Stop and frisk (Terry Stop)
o Exigent and emergency circumstances

STANDARD ON SUITS BASED ON DEFAMATION

The standard applied in purely private matters and on matters of public

significance varies because “not all speeches are alike”. 48 For private matters, they
are “often less rigorous” compared to public speeches.

The rule is – if the plaintiff is a public official or a public figure, he or she must
show that the false and vilifying statements have been made against him or her
with actual malice that is established through “with knowledge that it was false or
with reckless disregard of whether it was false or not”.49

The burden of proving that the article or speech was made with actual malice is
shifted to the plaintiff (the supposed aggrieved party).50

In Synder v. Phelps,51 it added another standard- the “outrageousness test”

(plaintiff must demonstrate that the defendant intentionally or recklessly engaged
in extreme and outrageous conduct that cause the plaintiff to suffer severe
emotional distress).

The defense available to the defamer is drawn from the Freedom of Speech Clause
(“no law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people to peaceably assemble and petition the government
for redress of grievances.”)52

Two kinds of communication privileges: absolute privilege (those which are

actionable even if the defamer acted in bad faith such as immunity granted to
legislators during speeches and debates from the floor); and qualified privilege
(those defamatory imputations which are not actionable unless found to have made
without good intention or justifiable motive such as “private communications” and
“fair and true report without any comments or remarks”).53

48
Synder v. Phelps, 562 U.S. 443, March 2, 2011.
49
Arafiles v. Phil. Journalists, Inc., G.R. No. 150256, March 25, 2004.
50
Id.
51
Note 44.
52
Article III, Section 4, 1987 Constitution.
53
Phil. Journalists, Inc. v. Thoenen, G. R. No. 143372, December 13, 2005.
12 /POINTERS IN POLITICAL LAW REVIEW

In qualified privilege, “factual error, content defamatory of official reputation, or

both is insufficient to warrant an award of damages for false statements” unless
actual malice is alleged and proved; even a written statement or utterance that
contains “half-truths” and “misinformation” is protected; it can be repress only by
“a clear and present danger of the obstruction of justice”.54

The guarantee of free speech includes the right to criticize conduct of public
officials whether judges, legislators, and executive officers.

Generally, criticisms against officialdom must be unfettered because – “debate on

public issues should uninhabited, robust, and wide-open and that it may well
include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials”.55

Public official are also expected to be thick-skinned instead of “too onion-skinned

with reference to comment upon his official acts”. 56

But criticism against officialdom do not authorize vilification; they are subject to
limitations – speech that is “vulgar, offensive, and shocking” is not entitled to
absolute constitutional protection; “fighting words or those by their very utterance
inflict injury or tend to incite an immediate breach of the peace”. 57

Some illustrations:

U.S. v. Bustos58 (the affidavits that charged a judge with malfeasance in office and
asking for his removal addressed to the Executive Secretary is qualifiedly
privileged.)

New York Times v. Sullivan59 (an advertisement published in the New York Times
against an elected Commissioner about police action against students who have
participated in civil rights demonstrations against a civil rights leader alluding to
the Commissioner who has supervision over the police department is
constitutionally protected)

PJI v. Thoenen60 (libelous letter written by a bogus lawyer cannot be classified as

privileged when it was published and circulated in public; the news item accusing
Thoenen of shooting pets of his neighbors, asking for his deportation cannot be
considered a “fair and true report without any comments or remarks of any
judicial, legislative or other official proceeding; not related to any act performed by
public officers in the exercise of official functions excepts false imputations
against Thoenen, a private individual seeking a quite life.)

54
Note 45.
55
Id.
56
U.S. v. Bustos, G. R. No. L-12592, March 8, 1918.
57
New Yorks Times v. Sullivan, 376 U.S. 254, March 9, 1964 citing Hustler Magazine, Inc. v. Falwell, 485 U.S.
46, February 24, 1988.
58
Note 56.
59
Id.
60
Note 49.
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THE LEGISLATIVE DEPARTMENT

_____________________________

As a general rule, the Congress cannot delegate its legislative power. There are two
exceptions; it can be delegated: (1) to local governments; and (2) when the
Constitution specify instances allowing delegation of legislative power (e.g.
emergency powers to the President; authorize the President to impose tariff rate,
import and export quotas, tonnage and wharfage dues, and other duties or imposts)

Notably, what is delegated to administrative agencies is not legislative or law-

making power but – rule-making power or law execution. For instance, when
Congress enacted R.A. No. 10173 or Data Privacy Act of 2012, it created the
National Privacy Commission; delegating to the Commission the power to
promulgate rules to implement the law.

Two-folds standard for a valid law execution: (1) the delegating law must be
complete in itself (it must set out the policy to be carried out or implemented by
the delegate); and (2) it must fix the standard (providing for limits upon which the
agency must conform in the performance of its functions).61

Three-folds requisites of valid administrative agencies’ rules and regulations with

penal regulations: (1) the statute itself must specifically authorize the promulgation
of penal regulations; (2) the statute fixes the penalty not to the will of the
administrative agency; and (c) the regulation must be published in the O.G. or
newspaper of general circulation.

PARTY-LIST SYSTEM ACT (R.A. NO. 7941, MARCH 3, 1995)

Guidelines spelled out in Ang Bagong Bayani v. Comelec:62

o Parties or organization must represent the marginalized and

underrepresented
o Political parties who wish to participate must comply with this policy
o Religious sector may not be represented
o Party or organization must not be disqualified under Section 6
o Party or organization must not be an adjunct of or a project organized or an
entity funded or assisted by the government
o Its nominees must comply with the requirement of the law
o Nominee must be able to contribute to the formulation and enactment of
legislation that will benefit the nation.

Parties or organization that are disqualified (Section 6)

61
Pelaez v. Auditor General, 1965.
62
G.R. No. 147589, June 26, 2001.
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o Religious sect or denomination, organization or association organized for

religious purpose
o Advocates violence or unlawful means t seek its goal
o A foreign party or organization
o Receiving support from any foreign government, foreign political party,
foundation, organization, whether directly or through any of its officers or
member or indirectly through third parties for partisan election purposes
o Violates or fails to comply with laws, rules or regulations relating to
elections
o Declares untruthful statements in its petition
o Ceased to exist for at least one year
o Fails to participate in the last two preceding elections or fails to obtain at
least two percent of the votes cases under the party-list system in the two
preceding elections for the constituency in which is has registered.

Veterans Federation Party v. Comelec, provides for the formula for the
computation of additional seats for party-list winners:

But take note, the 20% share is mandatory; the 2% threshold is unconstitutional.

THE EXECUTIVE DEPARTMENT

___________________________

In a nutshell, the President has two-folds functions: Head of State (ceremonial head
of the Government) and Chief Executive (Executive of the Government of the
Republic of the Philippines, head of the Executive Department of the Government)

As a general rule, he has only those powers spelled out in the Constitution. In the
case of Marcos v. Manglapus,63 the President has a “residual unstated powers” to
ban the return of Mr. Marcos based on the principle that the President has the duty
“to serve and protect the people”, “maintain peace and order”, “to protect life,
liberty and property”. But Fr. Bernas opines that this case is a class by itself.

But, the President cannot dispose State property (Roppongi, Japan) at will absent a
law enacted by the Congress.64

EXECUTIVE PRIVILEGE

It is the power of the President to withhold certain information from the courts,
congress, and ultimately the public. Consider two legal frameworks to profoundly
understand it – the Ermita and the Neri frameworks.

In Senate v. Ermita,65 Section 2(b) and Section 3 of E.O. 464 had been nullified;
but validated Sections 1 and 2.

63
G.R. No. 88211, October 27, 1989.
64
Laurel v. Garcia, 1990.
65
G.R. No. 169777, April 20, 2006.
15 /POINTERS IN POLITICAL LAW REVIEW

Under Section 2(b), it enumerated public officials who are covered by E.O.
464:

 Senior officials of executive departments who in the judgment of the

department heads are covered by the executive privilege;
 Generals and flag officers of the AFP and such other officers who in
the judgment of the Chief of Staff are covered by the executive
privilege;
 PNP officers with rank of chief superintendent or higher and such
other officers who in the judgment of the Chief of the PNP are covered
by the executive privilege;
 Senior national security officials who in the judgment of the National
Security Adviser are covered by the executive privilege; and
 Such other officers as may be determined by the President.

Under Section 3, all public official listed down in Section 2(b) should secure
prior consent of the President before appearing before the Senate of House to
ensure that the principle of separation of powers, adherence to the executive
privilege rule and respect for the rights of public officials appearing in inquiries in
aid of legislation.

Under Section 1, all heads of departments of the Executive Branch are

required to secure the consent of the President before appearing before the Senate
or House based on the principle of separation of powers between co-equal
branches of the government. Additionally, if the President so states in writing that
national security or public interest so requires, the appearance of public officials
must only be conducted in executive session.

Section 2(a) specifies the scope of Executive Privilege:

 Executive privilege covers all confidential or classified information between

the President and the public officers covered by this executive order,
including:
 Conversations and correspondence between the President and the public
official covered by this executive order (Almonte vs. Vasquez G.R. No.
95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250,
9 July 2002);
 Military, diplomatic and other national security matters which in the interest
of national security should not be divulged (Almonte vs. Vasquez, G.R. No.
95367, 23 May 1995; Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998).
 Information between inter-government agencies prior to the conclusion of
treaties and executive agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
 Discussion in close-door Cabinet meetings (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
 Matters affecting national security and public order (Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002).
16 /POINTERS IN POLITICAL LAW REVIEW

Only one executive official may be exempted from Congress’ inquiries in aid of
legislation – the President on who executive power is vested, beyond the reach of
the Congress except through impeachment.

In Neri v. Senate66 – the communication between the President and her

“operationally proximate advisers” is presumed privileged subject to rebuttal. The
Senate Committee on Accountability, among other committees, who bears the
heavy burden of showing “compelling need for disclosure of the information
covered by the executive privilege”, failed to overturn the presumption.

IMMUNITY FROM SUIT

Generally, the President enjoys immunity from suit during his or her tenure of
office or actual incumbency. But, a non-sitting president cannot invoke this
privilege for acts that he or she had committed during his or her tenure.67

CONSTITUTIONALITY OF PROCLAMATION NO. 216

In Lagman v. Medialdea,68 it declared President Duterte’s Proclamation No. 216

declaration of a state of martial law and suspending the privilege of writ of habeas
corpus in the whole Mindanao constitutional; it found that there are sufficient
factual bases for issuance of Proc. No. 216. The Supreme Court looks into the
“totality of the factual basis not piecemeal” and “sufficient factual basis” does not
expect “absolute correctness of facts”. The President could not be expected “to
verify the accuracy and veracity of all facts reported to him [because] of the
urgency of the situation”.

THE QUINTESSENTIAL VICE-PRESIDENT

Vacancy situations under Section 7:

1. President who has been chosen but fails to qualify at the start of term
2. No President has yet been chosen at the time he is supposed to assume
office.
(Effect- the VP is the Acting President until a President qualifies)
3. President-elect dies or permanently incapacitated before start of term
(Effect- the VP becomes the President)
4. Both the President and VP have not yet been chosen or have failed to qualify
5. Both President and VP have died or become permanently incapacitated at
start of term
(Effect- in Nos. 4 & 5, Senate President or Speaker of the House acts as
President until a President or VP qualifies)
6. In situations 4 & 5, both President and VP die or become permanently
incapacitated, or unable to assume office

66
G.R. No. 180643, September 4, 2008.
67
Lozada v. Macapagal-Arroyo, G. R. Nos. 184379-80, April 24, 2012.
68
G.R. No. 231658, July 4, 2017.
17 /POINTERS IN POLITICAL LAW REVIEW

(Effect- Congress by law will determine if who will act as President until a
President or VP has been elected and qualified.

Vacancy situations under Section 8

1. The incumbent President dies or permanently disabled, removed, or resigns

making the vacancy permanent, and so – the VP becomes the President

2. If both the President and VP die, or permanently disabled, removed, or

resign (Effect- the Senate President or Speaker until President and VP…)

3. If Acting President dies (same grounds in No. 2), the Congress determines
by law who will act as President until a new President or VP qualifies.

Vacancy in the VP (Section 9)

The President nominates a VP from among the Senate and House who shall
assume upon confirmation by a majority vote of both houses voting separately.
(Note: After EDSA People Power II, then Pres. Macapagal-Arroyo nominated
Senator Guingona as VP who eventually got the majority nod of the Congress)

Vacancy situation in the President and VP under Section 10

At 10 a.m. of the 3rd day of vacancy, the Congress convenes within 7 days to enact
a law calling for a “special election” to elect a President and VP to be held not
earlier than 45 days nor later than 60 days from the time of such call.

No calling of special election if the vacancy occurs within 18 months before the
date of next presidential election.

Appointing power of the President

THE JUDICIAL DEPARTMENT

___________________________________

Scope of judicial power: (a) to settle actual controversies involving rights which
are legally demandable and enforceable; and (b) 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.

Power of the congress over judicial system:

It can create courts and to apportion jurisdiction among various courts (e.g. R. A.
No. 7691 expanding the jurisdiction of Municipal Trial Courts) provided that it
should not impair the independence of the judiciary; the Congress cannot take
away the powers of the Supreme Court under Section 5; Congress can reorganize
as long as it does not impair security of tenure (Section 11)
18 /POINTERS IN POLITICAL LAW REVIEW

THE SPECTER OF “POLITICAL QUESTION” DOCTRINE

The rule is that “political questions are not within the province of the judiciary,
except to the extent that power to deal with such questions has been conferred
upon the courts by express constitutional or statutory provisions”.69

Does judicial review under the 1987 Constitution bring to an end the political
question doctrine? No because the 1987 Constitution mandates the judiciary that it
should not hide behind the political question doctrine even when there has been
grave abuse of discretion committed by the highest executive authority.

RULE MAKING POWER

Section 5(5), Article VIII has enhanced the rule making power of the Supreme
Court. In Echegaray v. Secretary of Justice,70 it settled the issue that the rule
making power of the Supreme Court specifically to promulgate rules of pleading,
practice and procedure is no longer shared by the SC with Congress and the
Executive to strengthen the independence of the judiciary.

Recently, the Supreme Court under then Chief Justice Puno’s watch promulgated
three unparalleled rules: Writ of Amparo, Writ of Habeas Data, Writ of Kalikasan,
to protect and enforce constitutional rights.

CASES BY EN BANC

o Constitutionality of a treaty, international or executive agreement, or law

o All other cases under the Rules of Court required to be heard en banc
o All cases involving the constitutionality, application or operation of
presidential decrees, proclamations, orders, instructions, ordinances, and
other regulations
o Cases heard by a division when the required majority vote in the division is
not obtained
o Cases where the SC modifies or reverses a doctrine or principle of law
previously laid down either en banc or in division
o Administrative cases involving the discipline or dismissal of judges of lower
courts
o Election contests for President or VP

Requisites of exercise of Judicial Review71

o There must be an actual case or controversy (a governmental act being

challenged must have an adverse effect or impact on the persons challenging
it; ripe for adjudication)
o The petitioners must possess locus standi (the challenger must have personal
and substantial interest in the case; he has sustained or will sustain direct
69
Tanada v. Cuenco, G.R. No. L-10520, February 28, 1957 quoting the Corpus Juris Secundum.
70
G.R. No. 132601, January 19, 1999.
71
Imbong v. Ochoa, G.R. No. 204819, April 8, 2014.
19 /POINTERS IN POLITICAL LAW REVIEW

injury as a result of its enforcement; the rule is flexible, SC may shun this
requisite if the matter is of transcendental interest to the public);
o The question of constitutionality must be raised at the earliest opportunity
(SC may exercise discretion to entertain belated filing especially if affects
constitutionality of a statute); and
o The issue of constitutionality must be the lis mota72 of the case.

TAXPAYER’S SUIT

Generally, a taxpayer is allowed to sue if any of the situations is present:

o Where there is a claim that public funds are illegally disbursed, or

o That public money is being deflected to any improper purpose, or
o There is wastage of public funds through the enforcement of an invalid or
unconstitutional law.73
Requisites:

o Public funds derived from taxation are disbursed by a political subdivision

or instrumentality and in doing so, a law is violated or some irregularity is
committed; and
o The petitioner is directly affected by the alleged act. 74

THE JUDICIAL AND BAR COUNCIL

The principal function of the JBC is to recommend appointees to the Judiciary; it

shall be under the supervision of the Supreme Court (Section 8, Article VIII)

In Aguinaldo v. President Aquino,75 it declared that clustering of nominees by the

JBC is unconstitutional. The clustering of nominees for simultaneous vacancies in
collegiate courts “constitute undue limitation on and impairment of the power of
the President to appoint members of the Judiciary under the 1987 Constitution”; it
also “deprives qualified nominees equal opportunity to be considered for all
vacancies, not just a specific one [vacancy]”.

(TO BE CONTINUED)

72
Literally means “a lawsuit moved”; a dispute that has begun and later forms the basis of a lawsuit (Black’s Law
Dictionary, Garner, 9th Ed., 2009)
73
G.R. No. 191667, April 17, 2013.
74
Id.
75
G.R. No. 224302, November 29, 2016.