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2016 POSSIBLE

BAR QUESTIONS IN
POLITICAL LAW
By: Atty. Enrique V. dela Cruz, Jr.
The Philippine
Constitution
Q: How may the Constitution be amended or
revised?

CONASS
By Congress upon a vote of of all its
members acting as Constituent Assembly
(ConAss);
ConAss is not subject to judicial review, the
manner the proposals are made is subject to
judicial review.
Since ConAss owes their existence to the
Constitution, the courts may determine whether
the assembly has acted in accordance with the
Constitution.
Q: How may the Constitution be amended or
revised?
By Constitutional Convention (ConCon)
Note: Congress may call a ConCon:
1. By a vote of 2/3 of all its members; or
2. By a majority vote of all its members, submit such
question to the electorate.
If Congress, acting as a ConAss, calls for a ConCon
but does not provide details for the calling of such
ConCon, Congress by exercising its ordinary
legislative power may supply such details. But in so
doing, the Congress (as legislature) should not
transgress the resolution of Congress acting as a
ConAss.
Q: How may the Constitution be amended or
revised?
By Peoples Initiative upon a petition of at least
12% of the total number of registered voters, of
which every legislative district must be
represented by 3% of the registered voters
therein.
Note: The Constitution may be amended
not oftener than every 5 years through
initiative.
Revisions cannot be done through Initiative.
(Lambino v. Comelec, G.R. No. 174153, Oct. 25, 2006)
Q: How do you determine whether a proposed
change is an amendment or a revision?
ANSWER: Quantitative test asks whether the
proposed change is so extensive in its provisions as to
change directly the substantial entirety of the
Constitution by the deletion or alteration of numerous
existing provisions. One examines only the number of
provisions affected and does not consider the degree
of the change.

Qualitative test whether the change will accomplish


such far reaching changes in the nature of our basic
governmental plan as to amount to a revision. (Lambino
v. Comelec, G.R. No. 174153, Oct. 25, 2006)
Q: What are the kinds of initiative under
the Initiative and Referendum Act?
1. Initiative on the Constitutionrefers to
a petition proposing amendments to the
Constitution.
2. Initiative on statutesrefers to a
petition to enact a national legislation.
3. Initiative on local legislationrefers to
a petition proposing to enact a regional,
provincial, municipal, city, or barangay law,
resolution or ordinance. (Sec. 2 [a], RA
6735)
Q: How can the people directly enact a
law prohibiting pork barrel?
A:
Sec. 2 (b) of RA 6735 provides for:
a. Indirect Initiative- Exercise of initiative
by the people through a proposition sent to
Congress or the local legislative body for
action.
b. Direct Initiative- The people themselves
filed the petition with the COMELEC and not
with Congress.
Q: Can the Constitution be amended or
revised directly by the people thru
initiative under RA 6735?
A: NO.
RA 6735 applies only to initiative and
referendum on national and local laws.
Under RA 6735, initiative on the Constitution
is confined only to proposals to amend.
The proposals will then have to be
submitted to Congress for enactment.
(Defensor-Santiago v. COMELEC, G.R.
No. 127325, March 19, 1997)
Q: Can RA 6735 be used to directly propose
amendments to the Constitution?
A: NO. The people are not accorded the power to "directly
propose, enact, approve, or reject, in whole or in part, the
Constitution" through the system of initiative.
They can only do so with respect to "laws, ordinances, or
resolutions."
Secondly, the Act does not provide for the contents of a
petition for initiative on the Constitution. Also, while the law
provides subtitles for National Initiative and Referendum
and for Local Initiative and Referendum, no subtitle is
provided for initiative on the Constitution.
This means that the main thrust of the law is initiative and
referendum on national and local laws. (Defensor-
Santiago, et al., v. COMELEC, et al., G.R. No. 127325,
March 19, 1997).
Q: Can a provision of law, initially valid, become
subsequently unconstitutional, on the ground that its
continued operation would violate the equal protection
of the law [Theory of Relative Unconstitutionality]?
A: YES.
The constitutionality of a statute cannot, in every instance,
be determined by a mere comparison of its provisions with
applicable provisions of the Constitution, since the statute
may be constitutionally valid as applied to one set of facts
and invalid in its application to another.
A statute valid at one time may become void at another
time because of altered circumstances. Thus, if a statute
in its practical operation becomes arbitrary or confiscatory,
its validity, even though affirmed by a former adjudication, is
open to inquiry and investigation in the light of changed
conditions. (Central Bank Employees Association v.
BSP, G.R. No. 148208. December 15, 2004)
Q: State the various modes of and steps in revising or
amending the Philippine Constitution. (1997 Bar Q)
SUGGESTED ANSWER:
There are three modes of amending the Constitution.
1. Under Section 1. Article XVIII of the Constitution.
Congress may by three-fourths vote of all its Members
convene itself into a constituent assembly and propose
any amendment to or revision of the Constitution.
2. Under the same provision, a constitutional convention
may propose any amendment to or revision of the
Constitution.
According to Section 3. Article XVII of the Constitution.
Congress may by a two-thirds vote of all its Members call a
constitutional convention or by a majority vote of all its
Members submit the question of calling such a convention
to the electorate.
3. Under Section 2, Article XVII of the Constitution,
the people may directly propose amendments to
the Constitution through initiative upon a petition
of at least twelve per cent of the total number
of registered voters, of which every legislative
district must be represented by at least three
per cent of the registered voters therein.

According to Section 4. Article XVII of the


Constitution, to be valid any amendment to or
revision of the Constitution must be ratified by a
majority of the votes cast in a plebiscite.
Any of the following may propose amendment
to the Constitution except:
2012 Bar Q
A. a constitutional convention called 2/3 vote of all
its members of Congress
B. a petition representing 12% of the nations
registered voter wherein each legislative district is
represented by 3% of its registered voters
C. vote of all the members of Congress
D. a petition representing 12% of the nations
registered voter wherein each legislative district is
represented by 5% of its registered voters
E. all of the above
Q: An amendment to or a revision of the present
Constitution maybe proposed by a Constitutional
Convention or by the Congress upon a vote of three-
fourths of all its members. Is there a third way of
proposing revisions of or amendments to the
Constitution? If so, how? (5%) (2004 Bar Question)
SUGGESTED ANSWER:

There is no third way of proposing revisions to the


Constitution; however, the people through initiative upon
petition of at least twelve per cent of the total number of
registered voters, of which every legislative district must be
represented by at least three per cent of the registered voters
in it, may directly propose amendments to the Constitution.

This right is not operative without an implementing law.


(Section 2, Article XVI of the 1987 Constitution.)
Q: An amendment to the Constitution shall be
valid upon a vote of three-fourths of all the
Members of the Congress. True or False?
SUGGESTED ANSWER:
The statement is false. First, an amendment
proposed by Congress must be approved by at least
three-fourths (3/4) vote of the members of the
Senate and of the House of Representatives voting
separately. It is inherent in a bicameral legislature
for the two houses to vote separately. (II Record of
the Constitutional Commission493).
Second, the amendment shall be valid only when
ratified by a majority of the votes cast in a plebiscite
(Constitution, Art. XVII, sec. 4).
Which of the following statements is
correct?
A. All provisions in the Constitution are
deemed self-executing unless otherwise
provided.
B. All provisions in the Constitution are
not self-executory.
C. Only the provisions on the Bill of
Rights are self-executing
D. The Declaration on State Principles
and Policies requires enabling
legislation.
Q: What are self-executing and non-self executing
provisions of the Constitution?

ANSWER: A provision which lays down a general principle,


such as those found in Article II of the 1987 Constitution, is
usually not self-executing.
But a provision which is complete in itself and becomes
operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of
which the right it grants may be enjoyed or protected, is self-
executing.
Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed
by the Constitution itself, so that they can be determined by an
examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature
for action. (Manila Prince Hotel v. GSIS, 267 SCRA 408
Q: Are provisions of the Constitution self-
executing or non-self executing? Why?

ANSWER: Unless it is expressly provided that a


legislative act is necessary to enforce a
constitutional mandate, the presumption now is
that all provisions are self-executing.
If the constitutional provisions are treated as
requiring legislation instead of self-executing, the
legislature would have the power to ignore and
practically nullify the mandate of the fundamental
law. This can be cataclysmic. (Manila Prince
Hotel v. GSIS, 267 SCRA 408 [1997]
NATIONAL TERRITORY
Important Definitions
The Exclusive Economic Zone is an area beyond
and adjacent to the territorial sea, which shall not
extend beyond 200 nautical miles from the
baseline from which the territorial sea is
measured.
Territorial sea is 12 nautical miles from the
baseline.
Contiguous zone is 24 nautical miles from the
baseline.
Continental Shelf is 150 nautical miles from the
baseline.
Maritime Disputes vs. Territorial Disputes
Maritime disputes are subject to compulsory arbitration
because under UNCLOS a party state has given its
advance consent to compulsory arbitration, unless a state
has opted out of compulsory arbitration involving certain
specified disputes.
In contrast, territorial disputes can be subject to
arbitration only with the consent of each disputant state to
every arbitration, unless such consent has been given in
advance in a treaty.
There is no such treaty between the Philippines and China
involving compulsory arbitration of territorial disputes.
The Philippines arbitration case against China is solely
a maritime dispute and does not involve any territorial
dispute.
QUESTION:
Recent land reclamation by China has dramatically
transformed seven disputed maritime features in the
Spratly Islands at the West Philippine Sea.
For example, in 1995 Subi Reef was completely
submerged at high tide. Today, there are 3.9 million
square meters of reclaimed land above water at high
tide on Subi Reef, and it is home to a pair of wooden
barracks, communications array, and helipad. There
are similarly stark changes at each of the other reefs.
Will Chinas reclamation activities entitle it to
claim maritime rights over its newly created
territories? Is reclamation a valid mode of
acquiring territory? Explain.
ANSWER (According to the Tribunal Award):
NO. Artificial Islands Do Not Generate Maritime
Entitlements
According to UNCLOS, an island is: a naturally formed area
of land, surrounded by water, which is above water at high
tide. Reclamation is obviously not a mode of acquiring
territory under international law because reclaimed land
cannot be considered a naturally formed area of land.
The reefs reclaimed by China are considered as low tide
elevations. The UNCLOS defines these maritime features as
landmass above water only at low tide. Outside an existing
territorial sea it is not entitled to a separate maritime zone. It
is unable to sustain human habitation or economic life on its
own.
It is therefore NOT entitled to a territorial sea and contiguous
zone or other maritime rights. [Philippines vs. China,
ITLOS, 12 July 2016]
How can the judgment in the ITLOS be enforced?

The UNCLOS dispute settlement system does not


contain an enforcement mechanism comparable to that
of the ICJ with the Security Council, at least in theory.
This means that should China refuse to comply with a
decision perceived to be unfavorable to its interests, it
is unlikely that there can be any legal sanctions against
such non-compliance.
The reaction of non-appearing States in the aftermath
of an adverse decision has been varied.
Despite affirming its rejection to the judgment of the
Court, some non-appearing parties have eventually
taken courses of action that were in compliance with
the final award.
How were previous judgment enforced?

For example, in the Artic Sunrise case, Russia


announced that it would not comply with the provisional
measure prescribed by ITLOS. However, nearly half a
year after the provisional measure was handed down, it
did release the activists and the ship, albeit Moscow
insisted pursuant to a domestic decision and not the
ITLOS order.
In the Nicaragua case, the U.S. persistently defied the
judgment of the ICJ and refused to enter into any
negotiation with Nicaragua on compensation. Nicaragua
attempted to enforce the judgment through various
mechanisms including recourse to the Security Council,
and the General Assembly, until the US relented.
QUESTION:
On October 27, 2015 the USS Lassen (a US
military ship) carried out the first freedom
of navigation patrol to challenge Chinas
territorial claims over the 12-nautical-mile
region surrounding its artificial islands in
the South China Sea (West Philippine Sea).
Chinese authorities responded angrily.
What is meant by freedom of
navigation? Is the US correct in
conducting FON patrols in the South
China Sea? Explain.
ANSWER:
Freedom of navigation (FON) is a
principle of customary international law
which states that ships flying the flag of
any sovereign state shall not suffer
interference from other states while in
international waters.
This right is now also codified as article
87(1)a of the 1982 United Nations
Convention on the Law of the Sea.
Right of Innocent Passage
It means navigation through the territorial
sea of a State for the purpose of
traversing the sea without entering
internal waters, or of proceeding to
internal waters, or making for the high
seas from internal waters, as long as it is
not prejudicial to the peace, good order
or security of the coastal State. (Articles 18
[1][2], 19[1], UNCLOS)
Right of Innocent Passage
The United Nations Convention on the Law of the
Sea (UNCLOS) enshrines the concept of innocent
passage through a coastal states territorial sea.
Passage is innocent so long as it is not
prejudicial to the peace, good order or
security of the coastal state.
A vessel in innocent passage may traverse the
coastal states territorial sea continuously and
expeditiously, not stopping or anchoring except in
force majeure situations.
Transit Passage
It is the right to exercise freedom of navigation and
overflight solely for the purpose of continuous and
expeditious transit through the straits used for
international navigation, i.e., between two areas of the
high seas or between two exclusive economic zones.
All ships and aircraft enjoy the right of transit
passage.
The requirement of continuous and expeditious transit
does not preclude passage through the strait for the
purpose of entering, leaving or returning from a State
bordering the strait, subject to the conditions of entry
to that State. (Magalona, 2005; Article 38[2],
UNCLOS)
Distinguish Innocent Passage
from Transit Passage
Innocent passage is for travel within
territorial waters while transit passage is
for any zone.
Innocent passage applies only to ships
while transit passage applies to
aircrafts as well.
In transit passage, military vessels are
also allowed which are not allowed in
innocent passage.
QUESTION:
Pedro, a Filipino, went inside the Chinese
Embassy in Cebu City and shot and killed a
Chinese Consul.
The police came, and brought him to the nearest
police station.
Upon reaching the station, he argued that since
the incident took place inside the Chinese
embassy, Philippine courts have no jurisdiction
because the Chinese embassy grounds are not
part of Philippine territory; thus, technically, no
crime under Philippine law was committed.
Is Pedro correct? Explain your answer.
ANSWER:
A: Pedro is not correct.
The premises occupied by the Chinese
Embassy do not constitute territory of China
but of the Philippines. Crimes committed
within the Chinese Embassy in Cebu City are
subject to the territorial jurisdiction of the
Philippines.
Since Pedro committed a crime, the
Philippines can prosecute him under
Philippine law (Reagan v. Commissioner of
Internal Revenue, 30 SCRA 968).
STATE IMMUNITY
Q: Is the doctrine of State immunity applicable to
government officials or employees?
A: YES.
While the doctrine appears to prohibit only suits against
the state without its consent, it is also applicable to
complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their
duties.

The rule is that if the judgment against such officials will


require the state itself to perform an affirmative act to satisfy
the same, such as the appropriation of the amount needed to
pay the damages awarded against them, the suit must be
regarded as against the state itself although it has not been
formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120]
In such a situation, the state may move to dismiss the
complaint on the ground that it has been filed without its
consent.
NO IMMUNITY
The rule does not apply where the public official
is charged in his official capacity for acts that are
unlawful and injurious to the rights of others.
Public officials are not exempt, in their personal
capacity, from liability arising from acts
committed in bad faith.
Neither does it apply where the public official is
clearly being sued not in his official capacity but
in his personal capacity, although the acts
complained of may have been committed while
he occupied a public position. (Amado J.
Lansang v. CA, G.R. No. 102667, Feb. 23, 2000,
Q: What are the limits on the doctrine of State immunity?
A:
Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a
suit against the State.
In the same tenor, an action or suit against a State officer or
the director of a State department on the ground that, while
claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State."
The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for
perpetrating an injustice. [Shauff v. CA, G.R. No. 90314,
November 27, 1990, 191 SCRA 713].
Q: What are the limits on the doctrine of State immunity?
A:
The doctrine of immunity from suit will not apply and may not
be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen.
The cloak of protection afforded the officers and agents of the
government is removed the moment they are sued in their
individual capacity.
This situation usually arises where the public official acts
without authority or in excess of the powers vested in him.
It is a well-settled principle of law that a public official
may be liable in his personal private capacity for
whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his
authority or jurisdiction.
[Shauff v. CA, G.R. No. 90314, November 27, 1990, 191
SCRA 713].
JEFFREY LIANG (HUEFENG) V.
PEOPLE (2001)
Jeffrey was a Chinese national who was
employed as an Economist by the Asian
Development Bank (ADB);
He uttered defamatory words to Joyce V.
Cabal, a member of the clerical staff of ADB.
He was sued for grave oral defamation;
His defense is diplomatic immunity because
he is an employee of the ADB.
Is he correct?
JEFFREY LIANG (HUEFENG) V.
PEOPLE (2001)
The Supreme Court ruled, in essence, that
the immunity granted to officers and staff of
the ADB is not absolute;
it is limited to acts performed in an official
capacity.
Furthermore, the SC held that the immunity
cannot cover the commission of a crime such
as slander or oral defamation in the name of
official duty.
JEFFREY LIANG (HUEFENG) V.
PEOPLE (2001)

Officers and staff of the Bank, including


experts and consultants performing missions
for the Bank, shall enjoy the following
privileges and immunities:
(a) Immunity from legal process with respect
to acts performed by them in their official
capacity except when the Bank waives the
immunity.
QUESTION:
Peter Co, a Chinese businessman dealing in carpets and
caviar, filed a suit against policemen and Chun LU, an
attach of the Chinese Embassy in Manila, for damages
because of malicious prosecution.
Peter Co alleged that Chun LU concocted false and
malicious charges that he was engaged in drug trafficking,
whereupon narcotics policemen conducted a buy-bust"
operation and without warrant arrested him, searched his
house, and seized his money and jewelry, then detained
and tortured him in violation of his civil and human rights as
well as causing him, his family and business, serious
damages amounting to millions of pesos.
Peter Co added that the trial court later acquitted him of the
drug charges. Clearly, he was a victim of a mistaken
identity.
QUESTION:
Assailing the courts jurisdiction: Chun LU now moves
to dismiss the complaint, on the ground that (1) he is
an embassy officer entitled to diplomatic
immunity; and that (2) the suit is really a suit
against his home state without its consent.
He presents diplomatic notes from the Chinese
Embassy certifying that he is an accredited embassy
officer recognized by the Philippine government.
He performs official duties, he says, on a mission to
conduct surveillance of drug experts and then inform
local police officers who make the actual arrest of
suspects.
Are the two grounds cited by Chun LU to dismiss the
suit tenable?
SUGGESTED ANSWER:
The claim of diplomatic immunity of Chun LU is not
tenable, because he does not possess an
acknowledged diplomatic title and is not performing
duties of a diplomatic nature.
However, the suit against him is a suit against China
without its consent.
Chun LU was acting as an agent of China and was
performing his official functions when he conducted
surveillance on drug exporters and informed the local
police officers who arrested Peter Co.
He was performing such duties with the consent of the
Philippine government, therefore, the suit against Chun
Lu is a suit against China without its consent.
(Minucher v. Court of Appeals, 397 SCRA 244 [1992]).
QUESTION:
The Republic of the Philippines, through the Department of
Public Works and Highways (DPWH), constructed a new
highway linking Metro Manila and Quezon province, and
which major thoroughfare traversed the land owned by
Mang Pandoy.
The government neither filed any expropriation proceedings
nor paid any compensation to Mang Pandoy for the land
thus taken and used as a public road.
Mang Pandoy filed a suit against the government to compel
payment for the value of his land.
The DPWH filed a motion to dismiss the case on the ground
that the State is immune from suit.
Mang Pandoy filed an opposition.
Resolve the motion.
SUGGESTED ANSWER:
The motion to dismiss should be denied. As
held in Secretary of the DPWH v. Sps.
Tecson, (G.R. No. 179334, April 21, 2015),
when the Government expropriates private
property without paying compensation, it is
deemed to have waived its immunity from
suit.
Otherwise, the constitutional guarantee that
private property shall not be taken for public
use without payment of just compensation
will be rendered nugatory.
Q: May prescription and laches be used to defeat an action
for just compensation which was filed 50 years after the
date of taking?
A: NO. Laches is principally a doctrine of equity which is
applied to avoid recognizing a right when to do so would
result in a clearly inequitable situation or in an injustice.
This doctrine finds no application in this case, since both
equity and the law direct that a property owner should be
compensated if his property is taken for public use.
Neither shall prescription apply because of the long-
standing rule "that where private property is taken by the
Government for public use without first acquiring title
thereto either through expropriation or negotiated sale,
the owners action to recover the land or the value
thereof does not prescribe.(Secretary of the DPWH v.
Sps. Tecson, G.R. No. 179334, April 21, 2015)
Q: The USS Guardian got grounded at the TRNP. The
US respondents were sued in their official capacity as
commanding officers of the US Navy who had control
and supervision over the USS Guardian and its crew.
Will the suit prosper?
A:
The alleged act or omission resulting in the unfortunate
grounding of the USS Guardian on the TRNP was
committed while they were performing official military
duties.
Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of
funds by the US government, the suit is deemed to be one
against the US itself.
The principle of State immunity therefore bars the exercise
of jurisdiction by this Court over the persons of the
respondents. [Arigo v. Swift, 735 SCRA 102 (2014)]
GENERAL PRINCIPLES
AND STATE POLICIES
QUESTION:
A law on Federalism was passed dividing the
Philippines into three regions (Luzon. Visayas, and
Mindanao), each constituting an Independent state
except on matters of foreign relations, national defense
and national taxation, which are vested in a Federal
government. Is the law valid? Explain.
SUGGESTED ANSWER:
Federalism cannot be established thru a mere law. It
requires a revision of the Constitution. The Federalism law
dividing the Philippines into three regions, each constituting
an independent state and vesting in a central federal
government matters of foreign relations, national defense,
and national taxation, is unconstitutional.
First, it violates Article I. which guarantees the integrity of
the national territory of the Philippines because it divided the
Philippines into three states.
SUGGESTED ANSWER:
Second, it violates Section 1. Article II of the Constitution,
which provides for the establishment of democratic and
republic States by replacing it with three States organized
as a confederation.
Third, it violates Section 22, Article II of the Constitution,
which, while recognizing and promoting the rights of
indigenous cultural communities, provides for national unity
and development.
Fourth, it violates Section 15, Article X of the Constitution,
which, provides for autonomous regions only in Muslim
Mindanao and in the Cordilleras within the framework of
national sovereignty as well as territorial integrity of the
Republic of the Philippines.
Fifth, it violates the sovereignty of the Republic of the
Philippines.
Q: RA 9262 favors only women and denies the same
relief of protection to men. Is this constitutional?

Answer: YES. The unequal power relationship between


women and men is a substantial distinction; the fact that
women are more likely than men to be victims of violence; and
the widespread gender bias and prejudice against women all
make for real differences justifying the classification under the
law.
The distinction between men and women is germane to the
purpose of R.A. 9262, which is to address violence committed
against women and children. This is consistent with the
state principle of protection to women and equality for all.
R.A. 9262 is based on a valid classification and, as such, did
not violate the equal protection clause. (GARCIA V. DRILON,
G.R. No. 179267. June 25, 2013.)
Q: Sec. 5.23 of the RH-IRR provides that skilled
public health professionals are required to implement
the RH law but private health professionals can refuse
to do so under the conscientious objection clause. Is
this provision constitutional?
A: NO. This is discriminatory and violative of the equal
protection clause and the state policy on the protection of
life and the right to life of the unborn child.
The conscientious objection clause should equally apply to
all medical practitioners without distinction whether they
belong to the public or private sector.
After all, the freedom to believe is intrinsic in every individual
and the protective robe that guarantees its free exercise is
not taken off even if one acquires employment in the
government. (Imbong et. al., v. Ochoa G.R. No. 204819
April 8, 2014)
QUESTION:
A leading food manufacturer and the DOST embarked on
field testing for a genetically modified species of eggplant
(BT Talong).
Several farmer groups filed suit (writ of kalikasan) assailing
the possible dangers to health and the environment.
The CA noted that there is yet no evidence of possible
health hazards or any danger to the environment.
It also noted that petitioners failed to present evidence to
prove their claim that Bt talong field trials violated
environmental laws and rules.
Nonetheless, the CA issued an injunction to restrain the
respondents from pursuing field trials on Bt Talong under
the precautionary principle of protecting the constitutional
right to a balanced and healthful ecology. Is the CA correct?
ANSWER: YES
The precautionary principle bridges the gap in cases where
scientific certainty in factual findings cannot be achieved.
By applying the precautionary principle, the court may
construe a set of facts as warranting either judicial action or
inaction, with the goal of preserving and protecting the
environment.
This may be further evinced from the second paragraph where
bias is created in favor of the constitutional right of the people
to a balanced and healthful ecology.
In effect, the precautionary principle shifts the burden of
evidence of harm away from those likely to suffer harm and
onto those desiring to change the status quo. [International
Service for the Acquisition of Agri-Biotech Applications,
Inc.v. Greenpeace Southeast Asia (Philippines),G.R. No.
209271, 8 December 2015]
ANSWER: YES
For purposes of evidence, the precautionary principle
should be treated as a principle of last resort. When
these features uncertainty, the possibility of
irreversible harm, and the possibility of serious harm
coincide, the case for the precautionary principle
is strongest.
When in doubt, cases must be resolved in favor of the
constitutional right to a balanced and healthful
ecology.
Parenthetically, judicial adjudication is one of the
strongest fora in which the precautionary principle may
find applicability. [International Service for the Acquisition
of Agri-Biotech Applications, Inc.v. Greenpeace Southeast
Asia (Philippines),G.R. No. 209271, 8 December 2015]
LEGISLATIVE
DEPARTMENT
PARTY-LIST
Can major political parties participate in the
party-list elections?
Yes. Indisputably, the framers of the 1987
Constitution intended the party-list system to include
not only sectoral parties but also non-sectoral parties.
The framers intended the sectoral parties to constitute
a part, but not the entirety, of the party-list system.
As explained by Commissioner Wilfredo Villacorta,
political parties can participate in the party-list system
"[F]or as long as they field candidates who come from
the different marginalized sectors that we shall
designate in this Constitution." (Atong Paglaum, Inc.
v. COMELEC, G.R. No. 203766. April 2, 2013.)
Is it necessary for a party-list nominee to actually belong
to the marginalized sector that he seeks to represent?
A nominee who does not actually possess the marginalized and
underrepresented status represented by the party-list group but proves to
be a genuine advocate of the interest and concern of the marginalized
and underrepresented sector represented is still qualified to be a
nominee.
Since political parties are identified by their ideology or platform of
government, bona fide membership, in accordance with the political
party's constitution and by-laws, would suffice.
In both political or sectoral party or group, party membership is the most
tangible link of the nominees to their respective parties and to the party-
list system.
Subject to the above, the disqualification of the nominee does not
necessarily mean the disqualification of the party since all the
grounds for cancellation or refusal of registration pertain to the party
itself. (Atong Paglaum, Inc. v. COMELEC, G.R. No. 203766.
April 2, 2013.)
Is it necessary for a party-list nominee to actually belong to the
marginalized sector that he seeks to represent?

A majority of the members of sectoral parties or organizations


that represent the "marginalized and underrepresented" must
belong to the "marginalized and underrepresented" sector they
represent. Similarly, a majority of the members of sectoral parties
or organizations that lack "well-defined political constituencies"
must belong to the sector they represent.
The nominees of sectoral parties or organizations that represent
the "marginalized and underrepresented," or that represent those
who lack "well-defined political constituencies," either must
belong to their respective sectors, or must have a track record of
advocacy for their respective sectors.
The nominees of national and regional parties or organizations
must be bona-fide members of such parties or organizations.
(Atong Paglaum, Inc. v. COMELEC, G.R. No. 203766.
April 2, 2013.)
Q: What is the formula mandated by the
Constitution in determining the number of
party-list representatives?
A: The House of Representatives shall be
composed of not more than two hundred and
fifty members, unless otherwise fixed by law.
(Section 5 (1), Article VI of the 1987
Constitution).
The number of seats available to party-list
representatives is based on the ratio of party-list
representatives to the total number of
representatives.
Number of seats available
to legislative districts
-------------------------------- x .20 = Number of seats available
.80 to party-list representatives

This formula allows for the corresponding increase in the


number of seats available for party-list representatives
whenever a legislative district is created by law.

After prescribing the ratio of the number of party-list


representatives to the total number of representatives,
the Constitution left the manner of allocating the seats
available to party-list representatives to the wisdom of
the legislature. (Barangay Association for National
Advancement and Transparency (BANAT v. COMELEC,
G.R. No. 179271, Apr. 21, 2009)
FOUR INVIOLABLE PARAMETERS TO DETERMINE
WINNERS IN THE PARTY-LIST ELECTIONS:

(1) 20% allocation. The Party-List


representatives shall constitute 20% of total
number of the members of the House including
those under the Party-List;

(2) 2% threshold. Only those parties garnering


a minimum of 2% of the total valid votes cast for
the Party-List system are qualified to have a seat
in the House of Representatives;
3. Three-seat limit. Each qualified party,
regardless of the number of votes it
actually obtained, provided that it has
secured more than 2% of the total valid
votes cast for party list system, is entitled
only to a maximum of 3 seats; and
4. Proportional representation. The
additional seats which a qualified party is
entitled to shall be computed in proportion
to their total number of votes
(Veterans Federation Party v. Comelec, G.R. No.136781, October
6, 2000).
How do we determine the number of seats in the
House of Representative allotted for party list
representatives?
BANAT V. COMELEC (2009)
Party-list representatives constitute 20% of the
total number of members of the House of
Representative. (Total number means inclusive
of those under the party-list). From there, the
following formula is derived:
There are presently 220 legislative districts,
according to the BANAT Case there are 55
party-list seats available. THIS MUST BE
FILLED-UP.
BANAT V. COMELEC (2009)
Parties receiving at least 2% of the total
votes cast for the party-list system shall be
entitled to one seat each (one seat for every
2%);
No party shall be entitled to more than 3
seats;
The remaining parties (with less than 2%)
will be ranked according to their total votes
garnered and will be entitled to a seat each
until the vacant party-list seats are all filled-
up.
DISCIPLINE OF
MEMBERS
May members of Congress be
suspended during their tenure?
YES.
each house may determine the rules of its
proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-
thirds of all its Members, suspend or expel
a Member. A penalty of suspension, when
imposed, shall not exceed sixty days.
Section 16 (3), Article VI of the Constitution
What is contemplated by disorderly
behavior?
The interpretation of the phrase disorderly
behavior is the prerogative of the House
concerned and cannot be judicially reviewed
(Osmea v. Pendatun, GR L-17144, October 28,
1960).

Note:
Alejandro v. Quezon, 46 Phil. 83 (1924)
(suspension of senator for disorderly conduct for
assaulting a fellow senator):
Osmea v. Pendatun, 109 Phil. 863 (1960)
(suspension of senator for disorderly behavior for
imputing bribery to President Garcia)
Can a senator or congressman be suspended by
the Sandiganbayan or the Ombudsman?
A: YES. Members of Congress may also be
suspended by the Sandiganbayan or by the Office of
the Ombudsman (Paredes v. Sandiganbayan G.R.
No. 118364. August 10, 1995; Santiago v.
Sandiganbayan, G.R. No. 128055, April 18, 2001).

The doctrine of separation of powers by itself may not


be deemed to have effectively excluded members of
Congress from Republic Act No. 3019 nor from its
sanctions.

The order of suspension prescribed by Republic Act


No. 3019 is distinct from the power of Congress to
discipline its own ranks under the Constitution.
Automatic Preventive Suspension
"SECTION 13.Suspension and loss of benefits. Any incumbent
public officer against whom any criminal prosecution under a
valid information under this Act or under Title 7, Book II of the
Revised Penal Code or for any offense involving fraud upon
government or public funds or property whether as a simple or as
a complex offense and in whatever stage of execution and mode of
participation, is pending in court, shall be suspended from office.
Should he be convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is
acquitted, he shall be entitled to reinstatement and to the salaries
and benefits which he failed to receive during suspension, unless in
the meantime administrative proceedings have been filed against
him.
"In the event that such convicted officer, who may have already
been separated from the service, has already received such
benefits he shall be liable to restitute the same to the
Government. (Section 13, RA 3019)
Is notice and hearing required?
A: NO.
The law does not require that the guilt of the
accused must be established in a pre-suspension
proceeding before trial on the merits proceeds.
Neither does it contemplate a proceeding to
determine (1) the strength of the evidence of
culpability against him, (2) the gravity of the offense
charged, or (3) whether or not his continuance in
office could influence the witnesses or pose a threat
to the safety and integrity of the records and other
evidence before the court could have a valid basis in
decreeing preventive suspension pending the trial of
the case. Santiago v. Sandiganbayan, G.R. No.
128055, April 18, 2001
QUESTION:
The House Committee on Justice conducted an inquiry in aid
of legislation into alleged Illegal Drug Trading at the New
Bilibid Prison and the connivance of personnel of the Bureau
of Jail Management and Penology (BJMP) and former high
ranking officials of the Department of Justice (DOJ).
Implicated in the illegal drug trade were former DOJ
Secretary and now senator Leila De Lima, her former driver
Rolando Dayan, former Bureau of Corrections (BuCor) Chief
Franklin Bucayu and former DOJ Undersecretary Francisco
Baraan.
The House Committee summoned all of them, including
Senator De Lima (who refused to appear). Former BuCor
appeared but refused to testify invoking executive privilege.
May Senator De Lima be compelled to appear and testify?
Can she be disciplined by the House of Representatives?
ANSWER:
NO. Senator De Lima cannot be compelled to appear and
testify at the hearing being conducted by a committee of the
House of Representatives.
As a matter of inter-parliamentary courtesy, the Senate and
the House are co-equal bodies and cannot compel the
members of the other body to appear at their hearings.
Senator De Lima may be invited and she may voluntarily
appear but she cannot be compelled.
The House cannot also discipline Sen. De Lima. Under
Section 16 (3), Article VI of the 1987 Constitution, a
senator can only be disciplined by the Senate.
each house may determine the rules of its proceedings,
punish its Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, suspend or
expel a Member. A penalty of suspension, when imposed,
shall not exceed sixty days.
QUESTION:
Can former BuCor Chief Bucayu validly invoke executive
privilege? Is he shielded by executive privilege from
responding to the inquiries of the House Committee? Explain
briefly. If the answer is no, is there any sanction that may be
imposed upon him?
SUGGESTED ANSWER:
NO. He cannot invoke executive privilege. Only the
President or the Executive Secretary by order of the
President can invoke executive privilege. Besides, the matter
being asked is not covered by executive privilege because it
does not involve any discussion with the President. (Senate
of the Philippines v. Ermita, 488 SCRA 13 [2006].)
For refusing to testify, he may be cited for contempt and
ordered to be arrested. (De la Paz v. Senate Committee on
Foreign Relations, 519 SCRA 521 [2009].)
QUESTION:
The Senate Justice Committee sent a subpoena
to Davao City Vice Mayor Paolo Duterte
requiring him to appear in the investigation being
conducted by the said Senate Committee with
regard to the allegations made against him by
witness Edgar Matobato on the killings in Davao
City and his links to the Davao Death Squad.
Vice Mayor Duterte refused to attend the hearing
on the ground that there is already a case
pending with the Office of the Ombudsman.
Is he correct?
ANSWER:
NO. The mere filing of a criminal or an
administrative complaint before a court or a
quasi-judicial body should not automatically bar
the conduct of legislative investigation.
Otherwise, it would be extremely easy to subvert
any intended inquiry by congress through the
convenient ploy of instituting a criminal or an
administrative complaint.
Surely, the exercise of sovereign legislative
authority, of which the power of legislative inquiry is
an essential component, can not be made
subordinate to a criminal or an administrative
investigation. (Standard Chartered Bank v. Senate,
G.R. No. 167173, December 27, 2007)
Salaries, Privileges
and
Disqualifications
Q: What is the rule on the
increase in their salaries?
A: No increase in said compensation
shall take effect until after the
expiration of the full term of all the
Members of the Senate and the
House of Representatives
approving such increase. (Article VI
Sec.10 1987 Constitution)
Q: May Congress increase or decrease the
salaries of their members?
A: Yes. Provided that any increase in their
salaries shall take effect only after the expiration of
the full term of all the Members of the Senate and
House approving such increase (the increase
should not take effect immediately as this will
contravene the prohibition). (Sec. 10, Article VI,
1987 Constitution)
Note: This rule also applies to those who did not
vote for the increase. Therefore, their retirement
benefits are based on their salaries at the time of
retirement. (Ligot v. Mathay)
Q: Are per diems, emoluments and
allowances included in the
prohibition of salary increase?
A: No. What the law contemplates is a
fixed annual compensation or salary.
Clearly, per diems, emoluments and
allowances are not included. Hence,
Senators and members of the house
are not prohibited from receiving these
allowances.
Q: Are there any limits as to the
amounts of these emoluments?
A: The Constitution does not provide
for any limitation in the amount that
maybe appropriated. What the
Constitution merely provided under
Sec. 20, Art. IX is that the COA may
audit the books of Congress and it shall
publish the list of expenses incurred by
and paid to the each member.
Q: Is the CDF Constitutional? (1994)
A: YES.
Under the Constitution, the spending power called by
James Madison as "the power of the purse," belongs
to Congress, subject only to the veto power of the
President. The President may propose the budget, but
still the final say on the matter of appropriations is
lodged in the Congress.
The power of appropriation carries with it the power to
specify the project or activity to be funded under the
appropriation law. It can be as detailed and as broad
as Congress wants it to be.
(Philconsa v. Enriquez, G.R. No. 113105, August
19, 1994)
Q: Is the CDF Constitutional? (1994)
A: YES.
The authority given to the members of Congress is only to
propose and identify projects to be implemented by the
President. Under Article XLI of the GAA of 1994, the
President must perforce examine whether the proposals
submitted by the members of Congress fall within the
specific items of expenditures for which the Fund was set up,
and if qualified, he next determines whether they are in line
with other projects planned for the locality.
Thereafter, if the proposed projects qualify for funding under
the Fund, it is the President who shall implement them.
In short, the proposals and identifications made by the
members of Congress are merely recommendatory.
(Philconsa v. Enriquez, G.R. No. 113105, August 19, 1994)
Q: Is the PDAF Constitutional? (2012)
A: YES. From the regulation of fund releases, the
implementation of payment schedules and up to the actual
spending of the funds specified in the law, the Executive takes the
wheel. The DBM lays down the guidelines for the disbursement of
the fund. The Members of Congress are then requested by the
President to recommend projects and programs which may
be funded from the PDAF.
The list submitted by the Members of Congress is endorsed by the
Speaker of the House of Representatives to the DBM, which
reviews and determines whether such list of projects submitted
are consistent with the guidelines and the priorities set by the
Executive.
This demonstrates the power given to the President to execute
appropriation laws and therefore, to exercise the spending per se
of the budget.
(LAMP v. Secretary of DBM, G.R. No. 164987, April 24, 2012)
Q: Is the PDAF Constitutional? (2012)
A: YES.
Although the possibility of this unscrupulous practice cannot
be entirely discounted, surmises and conjectures are not
sufficient bases for the Court to strike down the practice for
being offensive to the Constitution.
So long as there is no showing of a direct participation of
legislators in the actual spending of the budget, the
constitutional boundaries between the Executive and the
Legislative in the budgetary process remain intact.
While the Court is not unaware of the yoke caused by graft
and corruption, the evils propagated by a piece of valid
legislation cannot be used as a tool to overstep constitutional
limits and arbitrarily annul acts of Congress.
(LAMP v. Secretary of DBM, G.R. No. 164987, April 24, 2012)
Q: Is the PDAF Constitutional? (2013)
A: NO.
It is unconstitutional for Congress to allocate funds unto
themselves and participate in its implementation and
disbursement.
All prosecutorial organs of the government, within the bounds
of reasonable dispatch, should investigate and accordingly
prosecute all government officials and/or private individuals for
possible criminal offenses related to the irregular, improper
and/or unlawful disbursement/utilization of all funds under
the Pork Barrel System
(Belgica, et al. vs. Hon. Sen. Paquito N. Ochoa, G.R. No.
208566; SJS President S. Alcantara vs. Hon. Franklin Drilon, et
al., G.R. No. 208493; Pedrito M. Nepomuceno vs. Pres.
Benigno S. Aquino III, G.R. No. 209251 (November 19, 2013) )
Q: In 2011, the DBM announced that the Aquino administration
would implement P72.11 billion in additional projects in order to fast-
track disbursements and push economic growth in light of the global
slowdown and the onslaught of recent calamities.

Pursuant to this, Budget Secretary Florencio Abad issued National


Budget Circular No. 541 (dated July 18, 2012), establishing a
Disbursement Accelaration Program (DAP) which allows the DBM to
withdraw unobligated allotments of agencies with low levels of
obligations as of June 20, 2012, both for continuing and current
allotments.

The circular also allows withdrawn allotments to be used to


augment existing programs and projects of any agency and to fund
priority programs and projects not considered in the 2012 budget but
expected to be started or implemented during the current year. Is
this DAP Constitutional?
A: NO. The DAP is unconstitutional as it violates
Article VI Section 25(5) of the 1987 Constitution which
states that, No law shall be passed authorizing any
transfer of appropriations; however, the President, . . .
may, by law, be authorized to augment any item in the
general appropriations law for their respective offices
from savings in other items of their respective
appropriations."

No law has been passed to authorize or legalize


DAP and the funds released under the said
mechanism, thus clearly violating the above-cited
constitutional provision. [Araullo v. Aquino III, 728
SCRA 1 (2014) and 749 SCRA 284]
A: Note that the language of the law clearly states that any
augmentation must be a) for an item in the general
appropriations law; and b) must be for their offices.
Consequently, any augmentation from savings from the OP can
only be spent by the OP and cannot be given to lawmakers.
Furthermore, it must be to augment particular expenses in the
appropriations law and not for any and all other purposes.

The Supreme Court cited the case of Demetria vs. Alba,


where it ruled: The leeway granted ( to the President et al)
was thus limited. The purpose and conditions for which
funds may be transferred were specified, i.e. transfer may
be allowed for the purpose of augmenting an item and
such transfer may be made only if there are savings from
another item in the appropriation of the government
branch or constitutional body. [Araullo v. Aquino III, 728
SCRA 1 (2014) and 749 SCRA 284]
A: The SC cited the case of Sanchez, et al., vs.
COA [April 23, 2008], the Supreme Court ruled that
the President cannot indiscriminately transfer
funds from one department, bureau, office or
agency of the Executive Department to any
program, project or activity of any department, bureau
or office included in the General Appropriations Act or
approved after its enactment, without regard to
whether the funds to be transferred are actually
savings in the item from which the same are to be
taken, or whether or not the transfer is for the purpose
of augmenting the item to which the transfer is to be
made. [Araullo v. Aquino III, 728 SCRA 1 (2014)
and 749 SCRA 284]
Q: What specific features of the DAP render it
unconstitutional?
A: The SC declared as illegal:
(1) cross border transfers of the savings of the Executive to
augment appropriation of other offices outside the
Executive;
(2) funding of projects, activities and programs that were not
covered by any appropriation in the General Appropriations
Act; and
(3) withdrawal of unobligated allotment from the implementing
agencies and the declaration of the withdrawn, unobligated
allotments and unreleased appropriations as savings prior
to the end of the fiscal year and without complying with the
statutory definition of savings contained in the GAA.
[Araullo v. Aquino III, 728 SCRA 1 (2014) and 749 SCRA
284]
Q: Motion for Reconsideration?
A: The SC in a Decision dated 3 February 2015 affirmed
the unconstitutionality of the Disbursement Acceleration
Program (DAP) while partially granting the government's
motion for reconsideration.

The magistrates affirmed that a significant portion of the


administration's DAP, supposedly created to speed-up public
spending, violates Section 25(5), Article VI of the 1987
Constitution and the doctrine of separation of powers of the
executive and legislative branches. The high court still
considered unconstitutional the following:

(1) The creation of savings from un-obligated allotments


prior to the end of the fiscal year without complying with the
statutory definition of savings under the General Appropriations
Act (GAA), and
Q: Motion for Reconsideration?
A: (2) The executive department's cross-border transfer of
savings to another branch of government.
"The court further declares void the use of
unprogrammed funds despite the absence of a certification by
the national treasure for non-compliance.
Citing the operative fact doctrine, the high court,
however, heeded the Aquino administration's motion and ruled
that there is no constitutional requirement for Congress to
create allotment classes within an item. The Constitution does
not require the augmentation of funds to be under the expense
category or allotment class of the GAA. Accordingly, so long as
there is an item in the GAA that Congress has set aside a
specified amount of public funds, savings may be transferred
thereto for augmentation purposes. [Araullo v. Aquino III, 728
SCRA 1 (2014) and 749 SCRA 284]
Parliamentary
Immunities
Q: What is immunity from arrest?
A: Legislators are privileged from arrest while
Congress is in session with respect to offenses
punishable by up to 6 years of imprisonment.
Hence, the commission of serious crimes, i.e.,
crimes punishable by afflictive penalties or with
capital punishment, does not fall within the scope
of the constitutional privilege.
A member of Congress could only invoke the
immunity from arrests for relatively minor offenses,
punishable at most by correctional penalties.
(People v. Romeo Jalosjos, February 3, 2000)
Q: May a congressman convicted of rape be
allowed to attend session in Congress pending
his appeal?
A: No. To allow accused-appellant to attend
legislative sessions would constitute an unjustified
broadening of the privilege from arrest bestowed by
the Constitution upon members of Congress.
The trial court's judgment of conviction imports that
the evidence of guilt of the crime charged is strong.
Unquestionably, the continued incarceration of
accused-appellant is a valid and constitutionally
mandated curtailment of his rights to provisional
liberty pending appeal of his conviction. (People v.
Romeo Jalosjos, February 3, 2000)
Q: What is legislative privilege?
A: No member shall be questioned
or held liable in any forum other
than his/her respective
Congressional body for any debate
or speech in Congress or in any
committee thereof.
Q: What are the limitations on legislative privilege?
Protection is only against forum other than Congress itself.
Thus, for inflammatory remarks, which are otherwise
privileged, a member may be sanctioned by either the
Senate or the House as the case may be.
The speech or debate must be made in performance of
their duties as members of Congress.

Congress need not be in session when the utterance is


made, as long as it forms part of legislative action i.e. part
of the deliberative and communicative process used to
participate in legislative proceedings in consideration of
proposed legislation or with respect to other matters with
Congress jurisdiction.
Q: Can a senator-lawyer be disbarred or
disciplined by the Supreme Court for
statements made during a privilege
speech?
A: No. The plea of Senator Santiago for the
dismissal of the complaint for disbarment or
disciplinary action is well taken. Indeed, her
privilege speech is not actionable criminally
or in a disciplinary proceeding under the
Rules of Court. (Pobre v. Sen. Defensor-Santiago,
A.C. No. 7399, Aug. 25, 2009)
Q: Is it ok for a senator to criticize the Supreme
Court in a privilege speech?
A: No. The Senators offensive and disrespectful
language definitely tended to denigrate the institution.
It is imperative on the Courts part to re-instill in
Senator/Atty. Santiago her duty to respect courts of
justice, especially this Tribunal, and remind her anew
that parliamentary non-accountability thus granted to
members of Congress is not to protect them against
prosecutions for their own benefit, but to enable them,
as the peoples representatives, to perform the
functions of their office without fear of being made
responsible before the courts or other forums outside
the congressional hall. (Pobre v. Sen. Defensor-Santiago,
A.C. No. 7399, Aug. 25, 2009)
CONGRESSIONAL
ELECTORAL
TRIBUNALS
What is the composition of the
electoral tribunal?
1. 3 Supreme Court Justices designated by the
Chief Justice; and
2. 6 members of the Chamber concerned (Senate
or HoR) chosen on the basis of proportional
representation from the political parties and
parties registered under the party-list system.

Note: The senior Justice in the Electoral


Tribunal shall be its chairman. Members chosen
enjoy security of tenure and cannot be removed
by mere change of party affiliation.
What is the jurisdiction of the Electoral
Tribunals?
Each electoral tribunal shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective members (Sec. 17,
Art. VII, 1987 Constitution).
HRET's jurisdiction as the sole judge of all contests
relating to the elections, returns and qualifications of
members of Congress begins only after a
candidate has become a member of the House of
Representatives. [Marcos v. COMELEC, 318 Phil.
329, 397 (1995).]
When will a winning candidate be
considered a member of Congress?
To be considered a Member of the House of
Representatives, there must be a concurrence of the
following requisites: (1) a valid proclamation, (2) a
proper oath, and (3) assumption of office.
The term of office of a Member of the House of
Representatives begins only "at noon on the
thirtieth day of June next following their
election. Thus, until such time, the COMELEC
retains jurisdiction. [REYES v. COMELEC, G.R. No.
207264. June 25, 2013.]
How should the oath of office be taken by a winning
candidate to be considered a member of Congress?

Section 6, Rule II (Membership) of the Rules of the


House of Representatives provides:
Section 6. Oath or Affirmation of Members.
Members shall take their oath or affirmation either
collectively or individually before the Speaker in
open session.
Consequently, before there is a valid or official
taking of the oath it must be made (1) before the
Speaker of the House of Representatives, and (2)
in open session.
[REYES v. COMELEC, G.R. No. 207264. June 25,
2013.]
Question: Can the House Speaker be compelled by
Mandamus to recognize Velasco as the lawful
congressman of Marinduque?
Answer: YES. The administration of oath and the registration
of Velasco in the Roll of Members of the House are no longer
a matter of discretion or judgment on the part of Speaker
Belmonte, Jr. He is legally duty-bound to recognize Velasco as
the duly elected Congressman of Marinduque in view of the
ruling rendered by the SC which is now final and executory.
It is well past the time for everyone concerned to accept what
has been adjudicated and take judicial notice of the fact that
Reyes's ineligibility to run for and be elected to the subject
position had already been long affirmed by the SC.
Any ruling deviating from such established ruling will be
contrary to the Rule of Law and should not be countenanced.
[Velasco v. Belmonte, Jr.,G.R. No. 211140, 12 January
2016]
Question: Which has jurisdiction over a petition to expel a
member of the House (party-list) the HRET or
COMELEC? How about expulsion from the party-list?
Answer: Section 17, Article VI of the 1987 Constitution
endows the HRET with jurisdiction to resolve questions on the
qualifications of members of Congress. In the case of party-list
representatives, the HRET acquires jurisdiction over a
disqualification case upon proclamation of the winning party-
list group, oath of the nominee, and assumption of office as
member of the House of Representatives.
In this case, the COMELEC proclaimed Ating Koop as a
winning party-list group; petitioner Lico took his oath; and he
assumed office in the House of Representatives.
Thus, it is the HRET, and not the COMELEC, that has
jurisdiction over the disqualification case. [Lico v.
Commission on Elections, (G.R. No. 205505,September 29,
2015)]
Answer:
COMELEC was wrong in upholding the validity of the expulsion
of petitioner Lico from Ating Koop, despite its own ruling that
the HRET has jurisdiction over the disqualification issue.
These findings already touch upon the qualification requiring a
party-list nominee to be a bona fide member of the party-list
group sought to be represented.
The COMELEC justified its Resolution on the merits of the
expulsion, by relying on the rule that it can decide intra-party
matters as an incident of its constitutionally granted powers and
functions (citing Lokin v. COMELEC).
The Lokin case, however, involved nominees and not
incumbent members of Congress. In the present case, the fact
that petitioner Lico was a member of Congress at the time of
his expulsion from Ating Koop removes the matter from the
jurisdiction of the COMELEC. [Lico v. Commission on
Elections, (G.R. No. 205505,September 29, 2015)]
LEGISLATION
QUESTION: Can the President take active part in
the legislative process? Explain.
SUGGESTED ANSWER:
The President can take active part in the legislative
process to the extent allowed by the Constitution.
He can address Congress at any time to propose the
enactment of certain laws.
He recommends the general appropriations bill.
He can call a special session of Congress at any time.
He can certify to the necessity of the immediate
enactment of a bill to meet a public calamity or
emergency.
He can veto a bill.
QUESTION: When does a bill become a law even
without the signature of the President? Explain.
SUGGESTED ANSWER:
Under Section 27(1), Article VI of the Constitution, a
bill becomes a law even without the signature of the
President if:
(1)he vetoed it but his veto was over-riden by two-
thirds vote of all the members of both the Senate and
the House of Representatives; and
(2) if the President failed to communicate his veto to
the House from which the bill originated, within thirty
days after the date of receipt of the bill by the
President.
QUESTION: Suppose the President submits a budget which
does not contain provisions for CDF (Countrywide
Development Funds) or PDAF (Priority Development
Assistance Funds), popularly known as the pork barrel, and
because of this Congress does not pass the budget. Will that
mean paralyzation of government operations in the next fiscal
year for lack of an appropriation law? Explain.
SUGGESTED ANSWER:
No, the failure of Congress to pass the budget will not paralyze
the operations of the Government. Section 25(7), Article VI of
the Constitution provides:
"If, by the end of any fiscal year, the Congress shall have failed
to pass the generalappropriations bill for the ensuing fiscal
year, the general appropriations law for the preceding fiscal
year shall be deemed re-enacted and shall remain in force and
effect until the general appropriations bill is passed by the
Congress.
EXECUTIVE
DEPARTMENT
What are the specific powers of the
President?
1. Appointing power
2. Power of control and supervision
3. Commander-in-Chief powers
4. Pardoning power
5. Borrowing power
6. Diplomatic powers
7. Budgetary power
8. Informing power
9. Immunity from suit
Is the power of the President limited only to
such specific powers enumerated in the
Constitution?
No. The powers of the President cannot be said to be limited
only to the specific power enumerated in the Constitution.
Executive power is more than the sum of specific powers so
enumerated.
The framers did not intend that by enumerating the powers of
the President he shall exercise those powers and no other.
Whatever power inherent in the government that is neither
legislative nor judicial has to be executive.
These unstated residual powers are implied from the grant of
executive power and which are necessary for the President to
comply with his duties under his Constitution. (Marcos v.
Manglapus)
Q: Can the President choose to award the status of
National Artist to persons not nominated by the
NCCA and CCP?
A: NO. Under the law, the discretion of the President
in the matter of the Order of National Artists is confined
to the names submitted to him/her by the NCCA and the
CCP Boards.
This means that the President could not have
considered conferment of the Order of National Artists
on any person not considered and recommended by the
NCCA and the CCP Boards.
The President's discretion on the matter does not
extend to removing a legal impediment or overriding a
legal restriction. [Almario v. Executive Secretary, 701
SCRA 269 (2013)]
Q: Can the President choose to award the status of
National Artist to persons not nominated by the NCCA
and CCP?
A: NO. The former President's constitutional duty to
faithfully execute the laws and observe the rules, as to the
selection of the nominees for conferment of the Order of
National Artists proscribed her from having a free and
uninhibited hand in the conferment of the said award.
Otherwise, not only will the stringent selection and
meticulous screening process be rendered futile, the
respective mandates of the NCCA and the CCP Board of
Trustees under relevant laws to administer the conferment of
Order of National Artists, draft the rules and regulations to
guide its deliberations, formulate and implement policies and
plans, and undertake any and all necessary measures in that
regard will also become meaningless. [Almario v.
Executive Secretary, 701 SCRA 269 (2013)]
Q: Petitioner Pichay assails the constitutionality of E.O.
13. Petitioner asseverates that the President is not
authorized under any existing law to create the
Investigative and Adjudicatory Division, Office of the
Deputy Executive Secretary for Legal Affairs (IAD-
ODESLA) and that by creating a new, additional and
distinct office tasked with quasi-judicial functions, the
President has not only usurped the powers of congress to
create a public office, appropriate funds and delegate
quasi-judicial functions to administrative agencies but has
also encroached upon the powers of the Ombudsman.

Can the President abolish the PAGC and transfer its


powers to a new office thru a mere Executive Order?
Q: Can the President abolish the PAGC and
transfer its powers to a new office thru a mere
Executive Order?
A: YES.
First, the President has continuing authority to
reorganize the Executive Department under E.O. 292.
Second, the reorganization did not entail the creation of
a new, separate and distinct office.
The abolition of the PAGC did not require the creation
of a new, additional and distinct office as the duties and
functions that pertained to the defunct anti-graft body
were simply transferred to the ODESLA, which is an
existing office within the Office of the President Proper.
Pichay v. ODESLA, G.R. NO. 196425. JULY 24, 2012
Q: Can the President re-appoint a member of COA
after the expiration of the term of office?
A: NO.
The word reappointment means a second
appointment to one and the same office;
Under Sec. 1(2), Art. IX(D) of the 1987
Constitution when the appointment is to fill up a
vacancy for the corresponding unserved term of an
outgoing member, the appointment shall only be for
the unexpired portion of the departing
commissioners term of office, provided the new
appointees tenure in both capacities does not
exceed seven (7) years in all. (Funa v. COA,
G.R. No. 192791, April 24, 2012)
Q: Can the President exercise administrative disciplinary
power including the power to dismiss a Deputy
Ombudsman?
A: YES. Provided that: (1) that the removal of the Deputy
Ombudsman must be for any of the grounds provided for
the removal of the Ombudsman and (2) that there must be
observance of due process.
A Deputy Ombudsman is not an impeachable officer.
However, by providing for his removal from office on the
same grounds as removal by impeachment, he may not be
removed from office where the questioned acts do not
constitute culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, as well as
betrayal of public trust.
(Emilio Gonzales v. Office of the President, G.R. No.
196231, GR. NO. 196232 September 04, 2012)
INCOMPATIBLE OFFICE
Unless otherwise allowed by law or
the primary functions of his position,
no appointive official shall hold any
other office or employment in the
Government or any subdivision,
agency or instrumentality thereof,
including government-owned or
controlled corporations or their
subsidiaries. [Section 7, paragraph
(2), Article IX-B of the 1987
Constitution]
Holding Two Concurrent Positions
Elena bautista was DOTC Usec. She was designated
as OIC of MARINA in a temporary capacity. Is this
valid?
No. The Constitutional ban on dual or multiple
positions refers to the holding of the office, and not to
the nature of the appointment or designation, words
which were not even found in Section 13, Article VII
nor in section 7, Article IX-B.
To hold an office means to possess or occupy the
same, or to be in possession and administration,
which implies nothing less than the actual discharge
of the functions and duties of the office.
FUNA vs. ERMITA, G.R. No. 184740, February 11,
2010, 612 SCRA 308.
Q: Can the Acting Secretary of Justice concurrently
serve as Acting Solicitor General?

NO. That is a clear violation of the constitutional


prohibition under Section 13, Article VII of the 1987
Constitution.
The prohibition against dual or multiple offices being
held by one official must be construed as to apply to
all appointments or designations, whether
permanent or temporary, for it is without question
that the avowed objective of Section 13, is to
prevent the concentration of powers in the
Executive Department.
Funa vs. Agra, G.R. NO. 191644, FEBRUARY 19, 2013.
Q: State the exceptions to the ban against the
holding of 2 or more positions.
The only two exceptions against the holding of
multiple offices are: (1) those provided for under
the Constitution, such as Section 3, Article VII,
authorizing the Vice President to become a member
of the Cabinet; and (2) posts occupied by
Executive officials specified in Section 13,
Article VII without additional compensation in ex
officio capacities as provided by law and as
required by the primary functions of the officials
offices.
Funa vs. Agra, G.R. NO. 191644, FEBRUARY 19, 2013.
Midnight appointment
Section 15, Article VII:
"Two months immediately before the next presidential
elections and up to the end of his term, a President or
Acting President shall not make appointments, except
temporary appointments to executive positions when
continued vacancies therein prejudice public service or
endanger public safety.

Section 4 (1), Article VIII:


"The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en
banc or, in its discretion, in divisions of three, five, or
seven Members. Any vacancy shall be filled within
ninety days from the occurrence thereof ."
b. GR: Two months immediately before
the next Presidential elections (2nd
Monday of March), and up to the end of
his term (June 30), a President (or Acting
President) shall not make appointments.

XPN: Temporary appointments, to


executive positions, when continued
vacancies therein will prejudice public
service (e.g. Postmaster); or endanger
public safety (e.g. Chief of Staff)
May the President appoint a Chief Justice
even during the ban?
Yes. The ban under Section 15, Article VII of the
Constitution does not cover appointments to the
SC "(t)wo months immediately before the next
presidential elections and up to the end of his
terms" the President is prohibited to make
appointments ONLY to lower courts;
Under Sections 4(1) and 9 of Article VIII, the
President is required to fill vacancies in the courts
within the time frames provided therein unless
prohibited by Section 15 of Article VII.
The President may validly appoint the next chief
justice to fill-in the vacancy in the SC. (De Castro
v. Judicial and Bar Council, G.R. No. 191002,
Mar. 17, 2010)
PROBLEM:
Prior to the conduct of the May 2010 elections, then
President Gloria Macapagal-Arroyo (President Macapagal-
Arroyo) issued more than 800 appointments to various
positions in several government offices during the ban on
appointments (midnight appointments).
On 30 June 2010, President Benigno S. Aquino III
(President Aquino) took his oath of office as President of
the Republic of the Philippines.
On 30 July 2010, President Aquino issued EO 2 recalling,
withdrawing, and revoking appointments issued by
President MacapagalArroyo which violated the
constitutional ban on midnight appointments.
Is EO 2 correct? Should the appointments made by GMA
be revoked?
ANSWER: YES.
All of the 800 appointments of GMA were midnight
appointments and are void for violation of Section 15, Article
VII of the 1987 Constitution. EO 2 is constitutional.
The President exercises only one kind of appointing
power. There is no need to differentiate the exercise of the
Presidents appointing power outside, just before, or during
the appointment ban.
The Constitution allows the President to exercise the power
of appointment during the period not covered by the
appointment ban, and disallows (subject to an exception) the
President from exercising the power of appointment during
the period covered by the appointment ban.
So even if the appointment was accepted after the ban, it
is still void. [Velicaria-Garafil v. Office of the President,
(G.R. No. 203372,16 June 2015)]
COMMANDER-IN-CHIEF
POWERS
Q: After the Maguindanao massacre, the
president declared a state of emergency and
called out the armed forces. Is this valid?

A: The calling out of the armed forces to prevent or


suppress lawless violence in such places is a
power that the Constitution directly vests in the
President. She did not need a congressional
authority to exercise the same.
The President's call on the armed forces to
prevent or suppress lawless violence springs from
the power vested in her under Section 18, Article
VII of the Constitution, which provides. (Ampatuan
v. Sec. Puno, G.R. No. 190259. June 7, 2011.)
Q: Who can challenge the constitutionality of
the declaration of martial law?
A: The Constitution explicitly clothes "any citizen"
with the legal standing to challenge the
constitutionality of the declaration of martial law
or suspension of the writ.
The Constitution does not make any distinction
as to who can bring such an action.
As discussed in the deliberations of the
Constitutional Commission, the "citizen" who can
challenge the declaration of martial law or
suspension of the writ need not even be a
taxpayer. (Fortun v. Pres. Macapagal-Arroyo,
March 20, 2012)
Q: Can the President impose martial law without
any concurrence of Congress?
A: Yes. The Constitution vests exclusively in the
President, as Commander-in-Chief, the
emergency powers to declare martial law or
suspend the writ in cases of rebellion or invasion,
when the public safety requires it.
The imposition of martial law or suspension of the
writ takes effect the moment it is declared by the
President.
No other act is needed for the perfection of the
declaration of martial law or the suspension of the
writ. (Ampatuan v. Sec. Puno, G.R. No. 190259.
June 7, 2011.)
Is the right to bail impaired if the
privilege of the writ of habeas corpus is
suspended?
The right to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended.

d. He may proclaim martial law over the entire Philippines or any


part thereof provided that

i. There must be an invasion or rebellion; and


ii. The public safety requires the proclamation of martial law
over the Philippines or any part thereof.

Note: Martial law shall not be more than 60 days following which it
shall be lifted unless extended by Congress. Further, the
President, personally or in writing, has the duty to report to
Congress within 48 hours.
What are the requisites for the
suspension of the privilege of the
writ of habeas corpus?
1. There must be an invasion or rebellion; and

2. The public safety requires the suspension.

Note: The invasion and rebellion must be actual


and not merely imminent.
(Ampatuan v. Sec. Puno, G.R. No. 190259. June
7, 2011.)
State the guidelines in the declaration
of martial law.
1. There must be an invasion or rebellion, and

2. Public safety requires the proclamation of martial


law all over the Philippines or any part thereof.

Duration: Not more than 60 days following which it


shall be lifted unless extended by Congress

Duty of the President to report to Congress: Within


48 hours personally or in writing
Note:
The power of Congress is to revoke not to confirm
or ratify, much less to approve, the President's
action declaring martial law or suspending the
privilege of the writ of habeas corpus. It is a veto
power, just as the power of the judiciary to review
the President's action is a veto power on the
Executive's action.
It is clear, therefore, that the President's power to
declare martial law or suspend the writ is
independent, separate, and distinct from any
constitutionally mandated act to be performed by
either the Legislature or the Judiciary.
When the President declares a state of national
emergency and calls out the Armed Forces, does
such an act give to the President additional powers?

No. The declaration of a state of emergency is


merely a description of a situation which
authorizes her to call out the Armed Forces to
help the police maintain law and order.
It gives no new power to her, nor to the police.
Certainly it does not authorize warrantless
arrests or control of media. (Randolf S. David,
et al. v. Gloria Macapagal-Arroyo, et al.,
G.R. No. 171396, May 3, 2006).
Does the proclamation of a state of national emergency authorize the
President under Section 17, Article XII to temporarily take over or
direct the operation of any privately-owned public utility or business
affected with public interest?

NO. Section 17. Articled XII must be understood as an aspect of the


emergency power clause. The taking over of private business affected
with public interest is just another face of the emergency powers generally
reposed upon Congress.

Thus, when Section 17 states that the State may, during the emergency
and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or business
affected with public interest but refers to Congress, not the President.

Whether or not the President may exercise such power is dependent on


whether Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof (Randolf S. David, et al. v. Gloria Macapagal-
Arroyo, et al., G.R. No. 171396, May 3, 2006).
PARDONING
POWER
What is the general rule in executive
clemencies?
The President may grant reprieves, commutations,
pardons, and remit fines and forfeitures, after conviction by
final judgment.

Note: The grant is discretionary, and may not be controlled


by the legislature or reversed by the court, unless there is a
constitutional violation.

The power to grant clemency includes cases involving


administrative penalties.

Where a conditional pardon is granted, the determination of


whether it has been violated rests with the President.
DISTINGUISH PARDON FROM AMNESTY
1. Pardon is a private act and must be pleaded and proved
by the person pardoned; while amnesty is a public act of
which courts take judicial notice;
2. Pardon does not require the concurrence of Congress,
while amnesty requires the concurrence of Congress;
3. Pardon is granted to individuals, while amnesty is granted
to classes of persons or communities;
4. Pardon may be granted for any offense, while amnesty is
granted for political offenses;
5. Pardon is granted after final conviction, while amnesty
may be granted at any time; and
Pardon looks forward and relieves the offender from the
consequences of his offense, while amnesty looks backward
and the person granted it stands before the law as though he
had committed no offense.
QUESTION:
Risos-Vidal filed a petition seeking to disqualify President
Estrada from running for and holding any public elective
office on the ground that the pardon granted to him did not
expressly provide for the remission of the penalty of
perpetual absolute disqualification, particularly the restoration
of his (former President Estrada) right to vote and be voted
upon for public office.
She invokes Articles 36 and 41 of the Revised Penal Code, which
provides:
ART. 36. Pardon; its effects. A pardon shall not work the restoration
of the right to hold public office, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon.
ART. 41. The penalties of reclusion perpetua and reclusion temporal
shall carry with them xxxxxx perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the
principal penalty, unless the same shall have been expressly remitted
in the pardon.
Q: IS ERAP QUALIFIED?:
A: YES. Former President Estrada was granted an
absolute pardon that fully restored all his civil and
political rights, which naturally includes the right to seek
public elective office, the focal point of this controversy.
The wording of the pardon extended to former President
Estrada is complete, unambiguous, and unqualified.
It is likewise unfettered by Articles 36 and 41 of the Revised
Penal Code.
The pardoning power of the President cannot be limited
by legislative action.
Therefore, it can be argued that any act of Congress by way
of statute cannot operate to delimit the pardoning power of
the President. (Risos-Vidal v. COMELEC, G.R. No. 206666,
January 21, 2015; J. De Castro)
DIPLOMATIC
POWERS
Q: Can the President, on his own, terminate a treaty?

A: NO. Typically, a treaty provides for its termination by notice


of one of the parties, usually after a prescribed time from the
date of notice. Of course, treaties may also be terminated by
agreement of the parties, or by breach by one of the parties, or
by some other means.
Because the Constitution requires the consent of the
Senate for making a treaty, one can logically argue that its
consent is as well required for terminating it.
Finally, because treaties are, like statutes, the supreme law of
the land, it may well be argued that, again like statutes, they
may be undone only through lawmaking by the entire
Congress; additionally, since Congress may be required to
implement treaties and may displace them through legislation,
this argument is re-enforced.
2008 BAR EXAM QUESTION:
The President alone without the
concurrence of the Senate abrogated a
treaty.
Assume that the other country-party to the
treaty is agreeable to the abrogation
provided it complies with the Philippine
Constitution.
If a case involving the validity of the treaty
abrogation is brought to the Supreme
Court, how should it be resolved?
Suggested Answer:
The Supreme Court should declare the treaty abrogation
invalid.
While the Constitution is silent on whether a treaty
abrogation shall require the concurrence of the Senate to
make it valid and effective, the treaty-ratifying power of
Senate carries with it the power to concur a treaty abrogated
by the President by way of necessary implication.
Under the doctrine of incorporation, a treaty duly ratified by
the Senate and recognized as such by the contracting State
shall form an integral part of the law of the land.
The President alone cannot effect the repeal of a law of
the land formed by a joint action of the executive and
legislative branches, whether the law be a statute or a
treaty. To abrogate a treaty, the Presidents action must be
approved by the Senate.
2015 BAR EXAM QUESTION:
The Philippines and the Republic of Kroi Sha established
diplomatic relations and immediately their respective
Presidents signed the following:
(1) Executive Agreement allowing the Republic of Kroi Sha to
establish its embassy and consular offices within Metro
Manila; and
(2) Executive Agreement allowing the Republic of Kroi Sha to
bring to the Philippines its military complement, warships,
and armaments from time to time for a period not exceeding
one month for the purpose of training exercises with the
Philippine military forces and exempting from Philippine
criminal jurisdiction acts committed in the line of duty by
foreign military personnel, and from paying custom duties on
all the goods brought by said foreign forces into Philippine
territory under the said Executive Agreement.
2015 BAR EXAM QUESTION:

Senator Maagap questioned the


constitutionality of the said
Executive Agreements and
demanded that the Executive
Agreements be submitted to the
Senate for ratification pursuant to
the Philippine Constitution.
Is Senator Maagap correct? Explain.
ANSWER:
Senator Maagap is wrong.
Executive Agreements need not be submitted to the Senate
for its concurrence, under the provisions of Section 21 of
Article VII of the Constitution. (China National Machinery &
Equipment Corporation v. Sta. Maria, G.R. NO. 185572,
February 7, 2012, 665 SCRA 189)
This would be true with respect to both Executive
Agreements in the problem, including the second one, which
allows the Republic of Kroi Sha to bring to the Philippines its
military complements, warships and armaments from time to
time.
Under Section 25 of Article XVIII of the Constitution, only
such agreements with the United States of America would be
required to be the subject of a treaty which would need the
concurrence of the Senate.
ANSWER:

Senator Maagap is wrong.


It should be noted that, under the
Constitution, the Senate merely provides
its concurrence to, and does not ratify,
treaties.
It is the President who ratifies treaties,
(Pimentel v. Executive Secretary, G.R.
No. 15808, July 16, 2008, 462 SCRA
622)
IS THE EDCA CONSTITUTIONAL:
EDCA authorizes the U.S. military forces to have access to
and conduct activities within certain "Agreed Locations" in
the country.
It was not transmitted to the Senate on the executive's
understanding that to do so was no longer necessary.
Accordingly, in June 2014, the Department of Foreign Affairs
(DFA) and the U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary internal
requirements for the agreement to enter into force in the two
countries.
Petitioners primarily argue that it should have been in the
form of a treaty concurred in by the Senate, not an executive
agreement.
Is the EDCA Constitutional?
ANSWER:
As the sole organ of our foreign relations and the
constitutionally assigned chief architect of our foreign
policy, the President is vested with the exclusive power
to conduct and manage the country's interface with
other states and governments.
Being the principal representative of the Philippines, the
Chief Executive speaks and listens for the nation;
initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and
enters into international agreements; promotes trade,
investments, tourism and other economic relations; and
settles international disputes with other states.
Rene Saguisag, et al., v. Executive Secretary, et al., GR
No. 212426, January 12, 2016.
ANSWER:
As previously discussed, this constitutional mandate
emanates from the inherent power of the President to enter
into agreements with other states, including the prerogative
to conclude binding executive agreements that do not require
further Senate concurrence.
In Commissioner of Customs v. Eastern Sea Trading,
executive agreements are defined as "international
agreements embodying adjustments of detail carrying out
well-established national policies and traditions and those
involving arrangements of a more or less temporary nature.
In Bayan Muna v. Romulo, this Court further clarified that
executive agreements can cover a wide array of subjects that
have various scopes and purposes. They are no longer
limited to the traditional subjects that are usually covered by
executive agreements. [Rene Saguisag, et al., v. Executive
Secretary, et al., GR No. 212426, January 12, 2016.]
ANSWER:
No court can tell the President to desist from choosing
an executive agreement over a treaty to embody an
international agreement, unless the case falls squarely
within Article VIII, Section 25.
As can be gleaned from the debates among the
members of the Constitutional Commission, they were
aware that legally binding international agreements were
being entered into by countries in forms other than a
treaty.
At the same time, it is clear that they were also keen to
preserve the concept of "executive agreements" and the
right of the President to enter into such agreements..
[Rene Saguisag, et al., v. Executive Secretary, et al.,
GR No. 212426, January 12, 2016.]
Presidential
Succession
In case of a tie between Presidential
candidates, who shall be declared
winner?
In case of a tie between 2 or more
candidates, one shall be chosen by a
majority of all the members of both
Houses, voting separately. In case this
results in a deadlock, the Senate President
shall be acting President until the deadlock
is broken.
Note: The same is true with Vice-
Presidential candidates.
What is the term of office of the
President?
Six (6) years

Note: No person who has succeeded as President and has


served as such for more than four years shall be qualified for
election to the same office at any time.

No Vice-President shall serve for more than two successive


terms.

Note: The person who succeeds as President and not just in


an acting capacity could either be: the Vice-President; or one
who was elected President in a special election.

In both cases, if he has served for more than 4 years, he is


ineligible for re-election as President.
What are the rules on presidential
succession?
1. Vacancies at the beginning of the term
2. Vacancies after the office is initially filled
3. Vacancy in office of VP during the term for which he
was elected:

a. President will nominate new VP from any member


of either House of Congress.
b. Nominee shall assume office upon confirmation by
majority vote of all members of both Houses, voting
separately.

Note: Nominee forfeits seat in Congress.


4. Election of President and VP after vacancy during term:

a. Congress shall convene 3 days after the vacancy in the


office of both the President and the VP, without need of a
call. The convening of Congress cant be suspended.
b. Within 7 days after convening, Congress shall enact a law
calling for a special election to elect a President and a VP.
The special election cannot be postponed.
c. The special election shall be held not earlier than 45 days
nor later than 60 days from the time of the enactment of the
law.
d. The 3 readings for the special law need not be held on
separate days.
e. The law shall be deemed enacted upon its approval on third
reading.

Note: No special election shall be called if the vacancy occurs within


18 months before the date of the next presidential election.
Presidential
Immunity
Q: Is the President immuned from suit?
A: There is no provision in the 1987 Constitution
clothing the president with immunity from suit.
Under Sec. 15 of the 1973 Constitution The
president shall be immuned from suit during his
tenure.. But the 1987 Constitution did not preserve this
provision.
In Soliven vs Judge Makasiar (1988), the SC
said that president Cory Aquino enjoys immunity. In
Estrada v. Desierto (2001), the SC also held that the
intent of the framers of the 1987 Constitution was to
continue the presidents immunity during his tenure. In
the case of Rodriguez vs. GMA (2011), the SC also
affirmed that a sitting president is immuned from suit.
JUDICIAL
DEPARTMENT
SAMPLE PROBLEM

Lower courts, collegiate courts and the Supreme


Court should decide cases within its jurisdiction
within:

A. 3 months, 9 months and 24 months respectively


B. 9 months, 12 months and 18 months respectively
C. 3 months, 12 months and 24 months respectively
D. 9 months, 12 months and 24 months respectively
E. 3 months, 18 months and 24 months respectively
SAMPLE PROBLEM

Congress is considering new measures to


encourage foreign corporations to bring their
investments to the Philippines. Congress has found
that foreign investments are deterred by the
uncertain investment climate in the Philippines. One
source of such uncertainty is the heightened judicial
intervention in investment matters.

One such measure provides that no court or


administrative agency shall issue any restraining
order or injunction against the Central Bank in the
Banks exercise of its regulatory power over specific
foreign exchange transactions.

Would this be a valid measure? Explain.


Suggested Answer:

Yes, the measure is valid. In


Mantruste Systems, Inc. vs. Court
of Appeals, 179 SCRA 136, the
Supreme Court held that a law
prohibiting the issuance of an
injunction is valid, because under
Section 2, Article VIII of the
Constitution, the jurisdiction of the
courts may be defined by law.
IMPORTANT QUESTIONS

A. Enumerate the cases


required by the Constitution
to be heard en banc by the
Supreme Court?

B. What is the composition of


the Judicial and Bar Council
and the term of office of its
regular members?
Suggested Answer:
A. The following are the cases required by the
Constitution to be heard en banc by the Supreme Court:
a) Cases which under the Rules of Court are required to
be heard en banc.
a. Cases involving the constitutionality, application, or
operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations;
b. Cases heard by a division when the required majority
is not obtained;
c. Cases where a doctrine or principle of law previously
laid down will be modified or reversed;
d. Administrative cases against judges when the penalty
is dismissal; and
e. Election contests for President or Vice-President.
B. The Judicial and Bar Council is composed of the
following:

1. The Chief Justice as ex officio chairman;


2. The Secretary of Justice as ex officio member;
3. A representative of Congress as ex officio
member;
4. A representative of the Integrated Bar;
5. A professor of law;
6. A retired Justice of the Supreme Court; and
7. A representative of the private sector. (Section
8(1), Article VIII of the Constitution)

The term of office of the regular members is four


(4) years. (Section 8(2), Article VIII of the
Constitution)
Q: Currently, Congress has two representatives in
the JBC. One from the Senate and one from the
House. Thus, the JBC, in effect, has 8 members. Is
this constitutional?
A: NO.
From a simple reading of Section 8, Article VIII of the
Constitution, it can readily be discerned that the provision
is clear and unambiguous.
It enumerates the ex-officio or special members of the JBC
composed of the Chief Justice, who shall be its Chairman,
the Secretary of Justice and a representative of
Congress.
The use of the singular letter a preceding
representative of Congress is unequivocal and leaves no
room for any other construction. (Chavez v. JBC, G.R.
NO. 202242. JULY 17, 2012)
It is clear, therefore, that the Constitution mandates
that the JBC be composed of seven (7) members only.
Thus, any inclusion of another member, whether with one
whole vote or half (1/2) of it, goes against that mandate.
Section 8(1), Article VIII of the Constitution, providing
Congress with an equal voice with other members of the
JBC in recommending appointees to the Judiciary is
explicit.
Any circumvention of the constitutional mandate should
not be countenanced for the Constitution is the supreme
law of the land. Constitutional doctrines must remain
steadfast no matter what may be the tides of time.
It cannot be simply made to sway and accommodate
the call of situations and much more tailor itself to the
whims and caprices of the government and the people
who run it.
Hence, any act of the government or of a public official or
employee which is contrary to the Constitution is illegal,
null and void. (Chavez v. JBC, G.R. NO. 202242. JULY
17, 2012)
QUESTION:
Sol Gen Jardeleza applied for a vacant
position in the SC. Despite having garnered
enough votes to qualify, the JBC did not
include him in the list of nominees submitted to
the President.
Jardeleza then filed a petition for certiorari with
the SC seeking to compel the JBC to include
him in the list of nominees for Supreme Court
Associate Justice, on the grounds that the JBC
and Chief Justice Sereno acted in grave abuse
of discretion amounting to lack or excess of
jurisdiction in excluding him, despite having
garnered a sufficient number of votes to qualify
for the position.
Is the petition proper?
ANSWER:
The Court is compelled to rule that Jardeleza should
have been included in the shortlist submitted to the
President.
This consequence arose not from the unconstitutionality
of Section 2, Rule 10 of JBC-009, per se, but from the
violation by the JBC of its own rules of procedure and
the basic tenets of due process.
By no means does the Court intend to strike down the
"unanimity rule" as it reflects the JBC's policy and,
therefore, wisdom in its selection of nominees.
Even so, the Court refuses to turn a blind eye on the
palpable defects in its implementation and the ensuing
treatment that Jardeleza received before the Council.
True, Jardeleza has no vested right to a nomination, but
this does not prescind from the fact that the JBC failed to
observe the minimum requirements of due
process.[Jardeleza v. Sereno, G.R. No. 213181, 21
January 2015]
ANSWER:
Where the denial of the fundamental right of due
process is apparent, a decision rendered in disregard of
that right is void for lack of jurisdiction.
This rule may well be applied to the current situation for
an opposing view submits to an undue relaxation of the
Bill of Rights. To this, the Court shall not concede. As
the branch of government tasked to guarantee that the
protection of due process is available to an individual in
proper cases, the Court finds the subject shortlist as
tainted with a vice that it is assigned to guard against.
At the risk of being repetitive, the Court upholds the
JBC's discretion in the selection of nominees. Having
been able to secure four (4) out of six (6) votes, the only
conclusion left to propound is that a majority of the
members of the JBC, nonetheless, found Jardeleza to
be qualified for the position of Associate Justice and this
grants him a rightful spot in the shortlist submitted to the
President. [Jardeleza v. Sereno, G.R. No. 213181, 21
January 2015]
Q: The JBC has adopted a policy that First Level Court
judges must first earn 5 years of service before they are
considered for promotion to the RTC or higher courts. Is
this policy required to be published to be valid?

YES. The assailed JBC policy does not fall within the
administrative rules and regulations exempted from the
publication requirement.
The assailed policy involves a qualification standard by which
the JBC shall determine proven competence of an applicant.
It is not an internal regulation, because if it were, it would
regulate and affect only the members of the JBC and their staff.
Thus, it is but a natural consequence thereof that potential
applicants be informed of the requirements to the judicial
positions, so that they can comply. (Judge Ferdinand
Villanueva vs. the JBC, G.R. No. 211833, 07 April 2015)
Q: Does the 5-year service policy for First Level
Judges violate the equal protection clause?
NO. Consideration of experience by JBC as one factor in
choosing recommended appointees does not constitute a
violation of the equal protection clause.
The JBC does not discriminate when it employs number of
years of service to screen and differentiate applicants from
the competition.
The number of years of service provides a relevant basis to
determine proven competence which may be measured by
experience, among other factors.
The difference in treatment between lower court judges who
have served at least five years and those who have served
less than five years, is based on substantial distinctions.
(Judge Ferdinand Villanueva vs. the JBC, G.R. No.
211833, 07 April 2015)
TENURE
AND
DISCIPLINARY
POWERS
How long can members of
SC and judges hold office?
Members of SC and judges of the lower
courts can hold office during good
behavior until:

1. The age of 70 years old; or

2. They become incapacitated to


discharge their duties.
Who holds the power of disciplinary
action over judge of lower courts?
Disciplinary action against judges of lower courts:

1. Only the SC en banc has jurisdiction to


discipline or dismiss judges of lower courts.
2. Disciplinary action/dismissal: Majority vote of
SC Justices who took part in the deliberations
and voted therein.

Note: The Constitution provides that the SC is


given exclusive administrative supervision over
all courts and judicial personnel.
Does the Civil Service Commission
have jurisdiction over an employee of
the Judiciary for acts committed while
said employee was still in the
Executive Branch?
No. Administrative jurisdiction over a court
employee belongs to the Supreme Court,
regardless of whether the offense was
committed before or after employment in the
Judiciary.
What is the scope of the rule
making power of the SC?
Promulgate rules concerning:

1. The protection and enforcement of


constitutional rights;
2. Pleadings, practice and procedure in all
courts;
3. Admission to the practice of law;
4. The Integrated Bar; and
5. Legal assistance to the underprivileged.
Q: Can the legislature enact laws to regulate the
practice of the law?

A: No. It is noteworthy that unlike the 1935


and 1973 Constitution, the 1987 Constitution
no longer provides for the power of the
legislature to repeal, alter and supplement the
Rules promulgated by the Supreme Court.
However, the legislature, in the exercise of
police power may enact laws regulating the
practice of law to protect the public and
promote public welfare.
Q: Can congress pass a law lowering the
passing rate for candidates?
A: No, the admission, suspension, disbarment and
reinstatement of attorney at law in the practice of the
profession and their supervision have been indisputably a
judicial function and responsibility.
The Constitution has not conferred on Congress and the
Supreme Court equal responsibility which the Constitution
recognizes continue to reside in this Court. Congress may
repeal, alter and supplement the rules promulgated by the
Supreme Court.
But the authority and responsibility over the admission,
suspension, disbarment and reinstatement of attorney-at-law
and their supervision remains vested with the Supreme
Court. (IN RE: Cunanan, March 18, 1954)
Q: Can the SC enjoin a proposed bill seeking to
abolish the Judiciary Development Fund?
A: No, The events feared by petitioner are contingent on the
passing of the proposed bill in Congress. The threat of imminent
injury is not yet manifest since there is no guarantee that the bill
will even be passed into law. There is no transcendental interest
in this case to justify the relaxation of technical rules.
In this case, petitioner has not shown how he is entitled to the
relief prayed for. Hence, this court cannot be compelled to
exercise its power of judicial review since there is no actual case
or controversy.
Considering that what he seeks to be struck down is a proposed
bill, it would be better for him to air his concerns by lobbying in
Congress. In The Matter of Save the Supreme Court Judicial
Independence and Fiscal Autonomy Movement v. Abolition of
Judiciary Development Fund (JDF) And Reduction of Fiscal
Autonomy, 746 SCRA 352 (2015)
POWER
OF
JUDICIAL
REVIEW
Q: What are the requisites for a taxpayer suit?
A:
To sue as a citizen, three factors are relevant ---
(i) The character of funds or assets involved in the
controversy;
(ii) A clear disregard of constitutional or statutory
prohibition;
(iii) The lack of any other party with a more direct and
specific interest to bring the suit.
-- (Alan Paguia v. Office of the President, June 25,
2010)
What are the functions of Judicial
Review?
1. Checking invalidating a law or executive act
that is found to be contrary to the Constitution.

2. Legitimating upholding the validity of the law


that results from a mere dismissal of a case
challenging the validity of the law.
3. Symbolic to educate the bench and bar as to
the controlling principles and concepts on matters
of grave public importance for the guidance of
and restraint upon the future.
Q: May the Supreme Court decide a case that is
already moot and academic?
A: YES.
The "moot and academic" principle is not a magical
formula that automatically dissuades courts in resolving a
case.
Courts are not prevented from deciding cases, otherwise
moot and academic, if (1) there is a grave violation of the
Constitution; (2) the situation is of exceptional character
and of paramount public interest; (3) the constitutional
issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public; and (4) the
case is capable of repetition yet evading review. (David,
et al. v. Macapagal-Arroyo, May 3, 2006).
Q: May the Supreme Court decide a case that is
already moot and academic?
A: YES.
Once a suit is filed, the Court cannot automatically be
deprived of its jurisdiction over a case by the mere
expedient of the doer voluntarily ceasing to perform the
challenged conduct.
Otherwise, the doer would be dictating when this Court
should relinquish its jurisdiction over a case.
Further, a case is not mooted when the plaintiff seeks
damages or prays for injunctive relief against the possible
recurrence of the violation. (Province of North Cotabato
vs. GRP, 14 October 2008, 568 SCRA 402)
Q: In the case of Biraogo v. PTC, the Supreme
Court ruled that the PTC is a public office which
cannot be created by the President, the power to
do so being lodged exclusively with Congress.
Thus, Atty. Macalintal submits that if the
President, as head of the Executive Department,
cannot create the PTC, the Supreme Court,
likewise, cannot create the PET in the absence of
an act of legislature.
Is the Presidential Electoral Tribunal
Constitutional?
(Macalintal v. PET, June 7, 2011)
A: Yes.
The constitution of the PET is "on firm footing on the
basis of the grant of authority to the Supreme Court
to be the sole judge of all election contests for the
President or Vice-President under paragraph 7,
Section 4, Article VII of the 1987 Constitution.
Judicial power granted to the Supreme Court by the
same Constitution is plenary. And under the doctrine
of necessary implication, the additional jurisdiction
bestowed by the last paragraph of Section 4, Article
VII of the Constitution to decide presidential and vice-
presidential elections contests includes the means
necessary to carry it into effect.
(Macalintal v. PET, June 7, 2011)
Q: What is the extent of power of judicial review in
impeachment proceedings?
A: The power of judicial review includes the power of
review over justiciable issues in impeachment
proceedings.
Given their concededly political character, the precise role of
the judiciary in impeachment cases is a matter of utmost
importance to ensure the effective functioning of the separate
branches while preserving the structure of checks and
balance in our government.
Moreover, in this jurisdiction, the acts of any branch or
instrumentality of the government, including those traditionally
entrusted to the political departments, are proper subjects of
judicial review if tainted with grave abuse or arbitrariness.
(Chief Justice Corona v. Senate Impeachment Court, G.R.
NO. 200242. JULY 17, 2012)
Q: May the Supreme Court issue a TRO to
stop Congress from conducting impeachment
proceedings?
A:
Yes. The Constitution did not intend to leave
the matter of impeachment to the sole
discretion of Congress. Instead, it provided
for certain well-defined limits, or judicially
discoverable standards for determining the
validity of the exercise of such discretion.
(Gutierrez v. House of Representatives
Committee on Justice, Feb. 15, 2011)