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2010 BAR REVIEW NOTES

IN POLITICAL LAW
NATIONAL TERRITORY
What comprises the Philippine territory?
• The national territory comprises the Philippine
archipelago, with all the islands and waters
embraced therein, and all other territories over
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial,
and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves areas.

• The waters around, between, and connecting the


islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal
waters of the Philippines. (Art. I, 1987
Constitution).
Important Questions
• What is the basis of the
Philippine’s claim to a part of the
Spratly Islands?
• What is the concept of the
exclusive economic zone,
contiguous zone, and territorial
sea under the UNCLOS?
SPRATLY’S CLAIM
• The basis of the Philippine claim is
effective occupation of a territory not
subject to the sovereignty of another
state.
• The Kalayaan Island group has
remained under Phil. military control
since 1978. The island is also a
municipality of the province of
Palawan.
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.
ARCHIPELAGIC DOCTRINE
• The archipelagic doctrine emphasizes the unity
of land and waters by defining an archipelago
either as a group of islands surrounded by
waters or a body of waters studded with islands.
• This is reflected in Art. 1, Sec. 1 of the 1987
Constitution which states that the waters
around, between, and connecting the islands
of the archipelago, regardless of their
breadth and dimension forms part of the
internal waters of the Phil’s.
ARCHIPELAGIC DOCTRINE

• An imaginary single baseline is


drawn around the islands by
joining appropriate points of the
outermost islands of the
archipelago with straight lines and
all islands and waters enclosed
within the baseline form part of its
territory.
ARCHIPELAGIC DOCTRINE

• An imaginary single baseline is


drawn around the islands by
joining appropriate points of the
outermost islands of the
archipelago with straight lines and
all islands and waters enclosed
within the baseline form part of its
territory.
BANGSAMORO JURIDICAL ENTITY
• The government entered into a MOA-AD
with the MILF for the creation of a
Bangsamoro Juridical Entity in Muslim
Mindanao, constituting an independent
state (within the Philippine state) except on
matters of foreign relations, national
defense and national taxation, which
remains vested in the National
Government.
• Is the MOA-AD valid? Explain.
Cotabato v. RP (Oct. 14, 2008)
• NO. 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.
• It also violates Section 15, Article X of the
Constitution, which provides for autonomous
regions in Muslim Mindanao and in the
Cordilleras within the framework of national
sovereignty as well as territorial integrity of the
Philippines.
• It also violates the sovereignty of the
Philippines.
STATE IMMUNITY
Sovereign Immunity

• According to the absolute theory, a


sovereign cannot, without its consent, be
made a respondent in the courts of another
sovereign.
• According to the restrictive theory, the
immunity of the sovereign is recognized
only with regard to public acts or acts jure
imperii of a state, but not with regard to
private acts or acts jure gestionis
HOLY SEE V. JUDGE ROSARIO

• The Catholic Church entered into a contract with


Starlight Realty for the sale of the vacation house
of the papal nuncio.
• After receiving earnest money, the church sold
the same property to another buyer.
• Aggrieved, Starlight Realty sued the church for
breach.
• Summons was issued against the Holy See and
the Pope.
• The DFA certified that the Holy See (Vatican) is a
State and enjoys state immunity from suit.
Is the Vatican a State?
- NO. Under the four elements of a state (people,
territory, sovereignty, government).
- Yes. Under the Lateran Treaty of 1929.
- Factual determination by the DFA is binding upon
the courts.
- A State, though immuned, may still be sued for acts
jure gestionis.
- Here, the sale of the vacation house of the papal
nuncio is an act jure imperii.
TEST OF IMMUNITY
• The mere entering into a contract by a
foreign state with a private party cannot be
the ultimate test.
• The test is whether the foreign state is
engaged in the activity in the regular course
of business.
• If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken
for gain or profit. (Indonesia v. Vinzon, July 23, 2003)
INDONESIA V. VINZON (2003)
• The Republic of Indonesia entered into an agreement
for the maintenance of the Indonesian Embassy with
Vinzon Trade and Services.
• The agreement provided that the respondent would
maintain the cleanliness of the embassy and that it shall
be effective until 4 years and will be automatically
renewed thereafter unless cancelled for which there
needs to be a 30-day written notice.
• However in March 2000, when a new minister entered
service for the embassy, he terminated the agreement
for unsatisfactory service.
INDONESIA V. VINZON (2003)
• Due to this VINZON filed a case against the
Indonesian government in the RTC of
Manila.
• It alleged that the petitioner may be sued
under the Restrictive Doctrine of Immunity,
that when a sovereign state enters into a
contract with a private person, the state can
be sued upon the theory that it has
descended to the level of an individual from
which it can be implied that it has given its
consent to be sued under the contract.
INDONESIA V. VINZON (2003)
• The SC held that the mere entering into a
contract by a foreign State with a private party
cannot be construed as the ultimate test of
whether or not it is an act jure imperii or jure
gestionis.
• If the act is in pursuit of a sovereign activity, or
an incident thereof, then it is an act jure imperii.
• Submission by a foreign state to local
jurisdiction must be clear and unequivocal.
• It must be given explicitly or by necessary
implication.
IMMUNITY OF PUBLIC OFFICIALS
• The doctrine of state immunity from suit
applies to complaints filed against public
officials for acts done in the performance of
their duties.
• The rule is that the suit must be regarded as
one against the State where the satisfaction
of the judgment against the public official
concerned will require the State itself to
perform a positive act, such as appropriation
of the amount necessary to pay the
damages awarded to the plaintiff.
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,
DELEGATION
OF POWERS
Can a delegated power be re-delegated?
• GR: No. Delegated power constitutes not only a
right but a duty to be performed by the delegate
through the instrumentality of his own judgment and
not through the intervening mind of another.
• XPN: Permissible delegations. PETAL
• Delegation to the People through initiative and referendum
• Emergency powers delegated by Congress to the President
• Congress may delegate Tariff powers to the President
• Delegation to Administrative bodies- also known as power
of subordinate legislation.
• Delegation to Local Governments- it is not regarded as a
transfer of general legislative power, but rather as the grant
of authority to prescribe local regulations.
Q: What is the distinction between the
President’s authority to declare a State of
National Emergency and her authority to
exercise emergency powers?

• Her authority to declare a State of National


Emergency is granted by the Constitution, no
legitimate objection can be raised.

• The exercise of emergency powers such as


taking over of privately owned public utility or
business affected with public interest is a
different matter. It requires a delegation from
Congress.
The conditions for the vesture of
emergency powers are the following:
– There must be war or other national
emergency
– The delegation is for a limited period
only
– Delegation is subject to restrictions as
Congress may prescribe
– Emergency powers must be exercised
to carry a national policy declared by
Congress.
DECLARATION OF
PRINCIPLES
AND STATE POLICIES
FOREIGN POLICY
• “The State shall pursue an independent
foreign policy. In its relations with other
states the paramount consideration shall
be national sovereignty, territorial
integrity, national interest, and the right
to self-determination.”
--- Article II, Sec. 7[1987 Constitution]
Doctrine of Incorporation
• “The Philippines renounces war as an
instrument of national policy, adopts the
generally accepted principles of
international law as part of the law of the
land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and
amity with all nations.”
--- Article II, Sec. 2, [1987 Constitution]
Economic Nationalism
• “The State shall develop a self-reliant and
independent national economy effectively
controlled by Filipinos.” (Sec. 19, Art. II, 1987
Constitution)
• “In the grant of rights, privileges, and
concessions covering the national economy
and patrimony, the State shall give
preference to qualified Filipinos.” (Sec. 10,
Art. XII, 1987 Constitution)
Manila Hotel vs. GSIS
• In the bidding for Manila Hotel the highest
bidder was a Malaysian Firm;
• The losing Filipino bidder sought to match the
bid, arguing that it must be preferred.
• The GSIS denied the matching bid on the
ground that such a policy makes bidding a
ridiculous sham where no Filipino can lose
and where no foreigner can win.
Was GSIS correct?
• NO. The Supreme Court ruled:
• “Where a foreign firm submits the highest
bid, there is no question that the Filipino will
have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the
bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life
and meaning to the Filipino First Policy
provision of the 1987 Constitution.”
What is meant by “preference”?
• The Supreme Court ruled:
• “It means just that — qualified Filipinos
shall be preferred. The Constitutional
preference should give the qualified
Filipino an opportunity to match or equal
the higher bid of the non-Filipino bidder if
the preference of the qualified Filipino
bidder is to be significant at all.”
Article II. Section 3, of the 1987 Constitution
expresses, in part, that the "Armed Forces of the
Philippines is the protector of the people and (of) the
State." Describe briefly what this provision means. Is
the Philippine National Police covered by the same
mandate?

Article II, Section 3 of the 1987 Constitution means


that the Armed Forces of the Philippines should not
serve the interest of the President but of the people
and should not commit abuses against the people.

This provision is specifically addressed to the


Armed Forces of the Philippines and not to the
Philippine National Police, because the latter is
separate and distinct from the former. (Record of the
Constitutional Commission, Vol. V, p. 296; Manalo v.
Sistoza. 312 SCR A 239 [1999].)
Alternative Answer:

Article II, Section 3 of the 1987 Constitution can be


interpreted to mean that the Armed Forces of the
Philippines can be a legitimate instrument for the
overthrow of the civilian government if it has ceased
to be the servant of the people. (Bernas, The 1987
Constitution of the Philippines: A Commentary, 2003
ed., p. 66.)

This provision does not apply to the Philippine


National Police, because it is separate and distinct
from the Armed Forces of the Philippines. (Record of
the Constitutional Commission, Vol. V, p. 296,
Manalo v. Sistoza. 312 SCRA 239 [1999].)
Q6(2)(06)
What Constitutional provisions institutionalize the
principle of civilian supremacy?

Suggested Answer:
Civilian authority is at all times supreme over the
military. [Article II, Section 3]
• The installation of the President, the highest civilian
authority, as the Commander-in-Chief of the military.
[Article VII, Section 18]
• The requirement that members of the AFP swear to
uphold and defend the Constitution, which is the
fundamental law of the civil government. [Article XVI,
Section 5(1)]
• The requirement that members of the AFP shall have
respect for people's rights in the performance of their
duty. [Article XVI, Section 5(2)]
• Professionalism in the armed forces. [Article XVI,
Section 5(3)]
• Insulation of the AFP from partisan politics. [Article
XVI, Section 5(3)]
• Prohibition against the appointment of an AFP member
in the active service to a civilian position. [Article XVI,
Section 5(4)]
• Compulsory retirement of officers without extension of
service. [Article XVI, Section 5(5)]
• Requirement of proportional recruitment from all
provinces and cities, so as to avoid any regional clique
from forming within the AFP. [Article XVI, Section 5(7)]
• A 3-year limitation on the tour of duty of the Chief of
Staff, which although extendible in case of emergency
by the President, depends on Congressional
declaration of emergency. [Article XVI, Section 5(6)]
• The establishment of a police force that is not only
civilian in character but also under the local
executives. [Article XVI, Section 5(7)]
• Q: What are the provisions of the Constitution
that support the principle of Separation of
Church and State?
• The non-establishment clause in Sec. 5 of Art. III.
• Par. 2, Sec. 5 of Art. VI, regarding sectoral
representation in the House of Representatives.
Various sectors may be represented except the
religious sector.
• Prohibition against the use of public money for the
benefit of any religion or priest.
• Religious groups shall not be registered as political
parties. (Par.5, Sec. 2, Art. IX-C, 1987
Constitution)
Q: What is the strict
separationist approach?

A: It believes that the


establishment clause was meant
to protect the State from the
church, and the State’s hostility
towards religion allows no
interaction between the two.
Q: What is the strict neutrality approach?

A: It is not hostile in religion, but it is strict in


holding that religion may not be used as a
basis for classification for purposes of
governmental action, whether the action
confers rights or privileges or imposes duties
or obligations. Only secular criteria may be
the basis of government action. It does not
permit, much less require accommodation of
secular programs to religious belief.
• Q: What is the theory of benevolent
neutrality?

• A: Under this theory the “wall of separation”


is meant to protect the church from the state.
• It believes that with respect to governmental
actions, accommodation of religion may be
allowed, not to promote the government’s
favored form of religion, but to allow
individuals and groups to exercise their
religion without hindrance.
Q: What theory is applied in the
Philippines?
A: In the Philippine context, the Court
categorically ruled that, “the Filipino
people, in adopting the Constitution,
manifested their adherence to the
benevolent neutrality approach that
requires accommodations in
interpreting the religion clauses.
(Estrada v. Escritor, A.M. No. P-02-
1651, June 22, 2006).
CITIZENSHIP
What are the modes of acquiring citizenship?

• By birth
• Jus sanguinis – acquisition of citizenship on the
basis of blood relationship.
• Jus soli – acquisition of citizenship on the basis
of the place of birth.
• By naturalization – the legal act of adopting an
alien and clothing him with the privilege of a
native-born citizen.
• By marriage
• Q: Can there be judicial declaration that a
person is a Filipino citizen? Why?

• A: No, there can be no judicial declaration of


Filipino citizenship. He has to apply for
naturalization and adduce evidence of his
qualifications. (Yung Uan Chu v. Republic, L-
34973, April 14, 1988).
• Or he may apply for repatriation and regain
his former nationality (Frivaldo v.
COMELEC; BENGZON v. HRET)
• Q: Who are citizens of the Philippines?
• Those who are Filipino citizens at the time of
the adoption of the 1987 Constitution;
• Those whose fathers or mothers are Filipino
citizens;
• Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority;
• Those naturalized in accordance with law.
(Sec.1, Art. IV, 1987 Constitution)
• Q: What is the Caram Rule?
• A: Under the 1935 Constitution, those born in the
Philippines of foreign parent, who before the
adoption of the Constitution had been elected to
public office, are considered Filipino citizens.
(Chiongbian v. de Leon, GR L-2007, January 31,
1949.)

• The 1935, Constitution, during which regime FPJ


had seen first light, confers citizenship to all
persons whose fathers are Filipino citizens
regardless of whether such children are legitimate
or illegitimate. (Tecson v. COMELEC, GR 161434,
March 3, 2004.)
• Q: Who are natural-born citizens?
• Citizens of the Philippines from birth
without having to perform any act to
acquire or perfect their Philippine
citizenship;

• Those born before January 17, 1973 of


Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority.
• Q: Miguel Sin was born a year
ago in China to a Chinese
father and a Filipino mother.
• His parents met in Shanghai
where they were lawfully
married just two years ago.
• Is Miguel Sin a Filipino
citizen?
• A:
• Yes, because he is the legitimate child
of a Filipino mother.
• Under Article IV, Section 4 of the 1987
Constitution, his mother retained her
Philippine citizenship despite her
marriage to an alien husband, and
according to Article IV, Section 1(2) of
the 1987 Constitution, children born of
a Filipino mother are Filipino Citizens.
(2003 Bar Question)
• QUESTION: A was a natural born citizen of the
Philippines who became a naturalized citizen of the
U.S. A sought to reacquire his Philippine citizenship
under RA 9225.
• He then took his Oath of Allegiance to the Republic of
the Philippines with the Philippine Consulate General
(PCG) of Los Angeles, California. The Vice Consul and
the Bureau of Immigration then issued an Identification
Certificate recognizing A as a citizen of the Philippines.
• Six months after, A filed his Certificate of Candidacy
for the Position of Vice-Mayor of the Municipality of
Catarman, Camiguin.
• B filed a Petition for Disqualification against A, arguing
that the latter failed to renounce his US citizenship, as
required under R.A. 9225. Decide.
• ANSWER: A is disqualified from
running as a candidate in the local
elections for his failure to make a
personal and sworn renunciation of his
US citizenship?
• Section 5(2) of RA 9225 (on the making
of a personal and sworn renunciation of
any and all foreign citizenship) requires
of the Filipinos availing themselves of
the benefits under the said Act to
accomplish said undertaking.
• QUESTION:
• “A” is a naturalized citizen of
another country who reacquires
Filipino citizenship. On the other
hand, “B” possesses dual
citizenship by birth.
• If they desire to run for elective
public office, what requirement must
they comply with as regards their
citizenship?
• Answer:
• “A” must comply with the requirements set in
R.A 9225. Sec 5(3) of R.A. 9225 states that
naturalized citizens who reacquire Filipino
citizenship and desire to run for public office
shall “…make a personal and sworn
renunciation of any and all foreign
citizenship before any public officer
authorized to administer an oath” aside from
the oath of allegiance prescribed in Section
3 of R.A. 9225.
• Answer:
• “B” need not comply with the twin requirements of
swearing an oath of allegiance and executing a
renunciation of foreign citizenship because he is a
natural-born Filipino who did not subsequently
become a naturalized citizen of another country. It
is sufficed, if upon the filing of his certificate of
candidacy, he elects Philippine citizenship to
terminate his status as person with dual citizenship
considering that his condition in the unavoidable
consequence of conflicting laws of different States.
(Cordora v. COMELEC, G.R. No. 176947,
February 19, 2009).
Q3 (99) – A. What are the effects of marriages of:

1) a citizen to an alien;

2) an alien to a citizen; on their spouses and


children? Discuss.

B. Julio Hortal was born of Filipino parents. Upon


reaching the age of majority, he became a
naturalized citizen in another country. Later, he
reacquired Philippine citizenship. Could Hortal
regain his status as natural born Filipino citizen?
Would your answer be the same whether he
reacquires his Filipino citizenship by repatriation or
by act of Congress? Explain.
Suggested Answer:

A. 1) According to Section 4, Article IV of the


Constitution, Filipino citizens who marry aliens retain
their citizenship, unless by their act or omission they
are deemed, under the law, to have renounced it.

2) According to Mo Ya Lim Yao v. Commissioner of


Immigration, 41 SCRA 292, under Section 15 of the
Revised Naturalization Law, a foreign woman who
marries a Filipino citizen becomes a Filipino citizen
provided she possesses none of the disqualifications
for naturalization. A foreign man who marries a
Filipino citizen does not acquire Philippine citizenship.
However, under Section 3 of the Revised Naturalization
Act, in such a case the residence requirement for
naturalization will be reduced from ten (10) to five (5)
years. Under Section 1(2), Article IV of the
Constitution, the children of an alien and a Filipino
citizen are citizens of the Philippines.
B. Julian Hortal can regain his status as a natural
born citizen by repatriating.

Since repatriation involves restoration of a person to


citizenship previously lost by expatriation and Julian
Hortal was previously a natural born citizen, in case
he repatriates he will be restored to his status as a
natural born citizen. (Bengzon v. HRET)

If he reacquired his citizenship by an act of


Congress, Julian Hortal will not be a natural born
citizen, since he reacquired his citizenship by
legislative naturalization.
QUESTION:

Victor Ahmad was born on December 16, 1972 of a


Filipino mother an alien father. Under the law of his
father’s country, his mother did not acquire his
father’s citizenship.

Victor consults you on December 21, 1993 and


informs you of his intention to run for Congress in the
1995 elections. Is he qualified to run? What advice
would you give him? Would your answer be the same
if he had seen and consulted you on December 16,
1991 and informed you of his desire to run for
Congress in the 1992 elections?
Discuss your answer.
ANSWER: No, Victor Ahmad is not
qualified to run for Congress in the
1995 elections.

Under Section 6, Article VI of the


Constitution, a member of the House of
Representatives must be at least
twenty-five (25) years of age on the day
of the election.

Since he will be less than twenty-five


(25) years of age in 1995, Victor Ahmad
is not qualified to run.
Under Section 2, Article IV of the Constitution, to be
deemed a natural-born citizen, Victor Ahmad must
elect Philippine citizenship upon reaching the age of
majority.

I shall advise him to elect Philippine citizenship, if he


has not yet done so, and to wait until the 1998
elections.

My answer will be the same if he consulted me in


1991 and informed me of his desire to run in the 1992
elections.
Q18 (00) - Cruz, a Filipino by birth, became an
American citizen. In his old age he has returned to
the country and wants to become a Filipino again. As
his lawyer, enumerate the ways by which citizenship
may be reacquired.

Suggested Answer

Cruz may reacquire Philippine citizenship in the


following ways:

1. By naturalization;
2. By repatriation pursuant to Republic Act No. 8171;
and
3. By direct act of Congress (Section 2 of
Commonwealth Act No. 63).
IN RE: VICENTE CHING (1999)
• He was a legitimate child born under the 1935
Constitution of a Filipino mother and an alien father;
• Upon reaching the age of majority, he voted and even
ran for public office;
• He never left the country;
• He topped the CPA exams;
• Topped his law class in Ateneo and passed the bar;
• SC did not allow him to take the oath because he did not
elect Philippine citizenship within a “reasonable time”
upon reaching the age of majority.
• Can he still do so 14 years after majority age?
IN RE: VICENTE CHING (1999)
• The phrase “reasonable time” has been
interpreted to mean that the election should be
made within three (3) years from reaching the
age of majority.
• Laches will set in after 14 years.
• Philippine citizenship can never be treated like a
commodity that can be claimed when needed
and suppressed when convenient.
• One who is privileged to elect Philippine
citizenship has only an inchoate right to such
citizenship. As such, he should avail of the right
with fervor, enthusiasm and promptitude.
LEGISLATIVE
DEPARTMENT
INCOMPATIBLE
AND
FORBIDDEN
OFFICES
INCOMPATIBLE OFFICE
“No senator or member of the House of
Representatives may hold any other office or
employment in the Government, or any
subdivision, agency, or instrumentality thereof,
including government owned and controlled
corporations or their subsidiaries during his term
without forfeiting his seat.”

Note: Forfeiture of the seat in Congress shall be automatic


upon the member’s assumption of such other office
deemed incompatible with his seat in Congress.
However, no forfeiture shall take place if the member of
Congress holds the other government office in an ex-
officio capacity.
2. Forbidden Office - “Neither shall he be
appointed to any office which may have
been created or the emoluments thereof
increased during the term for which he
was elected”. (Sec. 13, Art. VI ).

Note: The ban against appointment to the


office created or the emoluments thereof
increased shall, however, last only for the
duration of the term for which the member
of Congress was elected.
Parliamentary
Inhibitions and
Disqualifications
What are the particular inhibitions
attached to their office?
1. “Personally” appearing as counsel before any
court of justice or before the Electoral Tribunals,
or quasi-judicial or other administrative bodies.

2. Upon assumption of office, must make a full


disclosure of financial and business interests.
Shall notify the House concerned of a potential
conflict in interest that may arise from the filing of
a proposed legislation of which they are authors.
Are legislators required to disclose
their assets and liabilities?

A public officer or employee shall upon


assumption of office and as often thereafter
as may be required by law, submit a
declaration under oath of his assets,
liabilities and networth. (Sec. 12, Art. VI)
SESSIONS
What is the regular session of
Congress?

Congress convenes once every year on the


4th Monday of July, unless otherwise
provided for by law. It continues in session
for as long as it sees fit, until 30 days before
the opening of the next regular session,
excluding Saturdays, Sundays, and legal
holidays.
What are the Instances when there are
special sessions?
1. To call a special session due to vacancies in the offices
of the President and Vice President at 10 o’clock a.m. on
the third day after the vacancies;

2. To decide on the disability of the President because a


majority of all the members of the cabinet have
“disputed” his assertion that he is able to discharge the
powers and duties of his office;

3. To revoke or extend the Presidential Proclamation of


Martial Law or suspension of the privilege of the writ of
habeas corpus; and

4. Called by the President at any time when Congress is


not in session.
What are the instances when Congress
is voting separately?

1. Choosing the President.


2. Determine President’s disability.
3. Confirming nomination of Vice-President.
4. Declaring the existence of a state of war
in joint session.
5. Proposing Constitutional amendments
What are the instances when Congress
is voting jointly?

1. To revoke or extend proclamation


suspending the privilege of writ of
habeas corpus;

2. To revoke or extend declaration of


martial law.
What is the rule on adjournment?

Neither House during the sessions of the


Congress shall, without the consent of the
other, adjourn for more than 3 days, nor to
any other place than that in which the two
Houses shall be sitting.
What is adjournment sine die?

Interval between the session of one


Congress and that of another.
INTERNAL
GOVERNMENT
OF
CONGRESS
What does majority vote mean?
In Santiago v. Guingona GR134577 Nov. 18, 1998 the Court
held that majority refers to more than half of the total or
aggregate.

Although the Constitution provides that the Speaker and the


President shall be elected by a majority of all members, the
Constitution does not provide that those who will not vote for
the winner (by majority vote) are ipso facto the minority who
can elect the minority leader.

Majority votes pertain only to such number or quantity as may


be required to elect an aspirant as such election, the houses
are already divided into the majority camp and the minority
camp.
What is a quorum?

A quorum is such number which enables a


body to transact its business. It is such
number which makes a lawful body and
gives such body the power to pass a law or
ordinance or any valid act that is binding.
What is the effect if there is no
quorum?
In the absence of quorum, each House
may adjourn from day to day and may
compel the attendance of absent members
in such manner and under such penalties
as each House may provide.

Note: In computing quorum, members who


are outside the country and thus outside of
each House’s jurisdiction are not included.
Can the courts intervene in the
implementation of the internal rules
of Congress?
As part of their inherent power, they can
determine their own rules. Hence, the courts
cannot intervene in the implementation of these
rules insofar as they affect the members of
Congress. (Arroyo v. De Venecia)

Note: Corollary to Congress’ power to make


rules is the power to ignore them when
circumstances so require.
Are members of Congress exempt
from the disciplinary powers of
their respective House?

No. Each House may punish its


members for disorderly behavior and,
with the concurrence of 2/3 of all its
members, suspend (for not more than 60
days) or expel a member.
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
(Osmeña v. Pendatun, GR L-17144, October 28,
1960).

Note: 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).
What are the matters mandated by the
Constitution to be entered into the
Journal?

1. Yeas and nays on the third and final


reading of a bill;
2. Veto message of the President;
3. Yeas and nays on re-passing a bill vetoed
by the President;
4. Yeas and nays on any question at the
request of 1/5 of the members present.
What is the enrolled Bill Theory?

An enrolled bill is one duly introduced and


finally passed by both Houses,
authenticated by the proper officers of
each, and approved by the President. It
is conclusive upon the courts as regards
the tenor of the measure passed by
Congress and approved by the President
(Mabanag v. Lopez Vito, G.R. No. L-1123,
March 5, 1947)
If there is a conflict between journal
entry and enrolled bill, which shall
prevail?

Enrolled bill prevails (Field v. Clark, 143


US 649), except to matters, which under
the Constitution must be entered into
the journal (Astorga v. Villegas, G.R.
No. L-23475, April 30, 1974)
What is the enrolled Bill Theory?

An enrolled bill is one duly introduced and


finally passed by both Houses,
authenticated by the proper officers of
each, and approved by the President. It
is conclusive upon the courts as regards
the tenor of the measure passed by
Congress and approved by the President
(Mabanag v. Lopez Vito, G.R. No. L-1123,
March 5, 1947)
What bills are required by the Constitution
to originate exclusively from the House

1. Appropriation Bills;
2. Private Bills;
3. Revenue Bills;
4. Bills Increasing public debt
5. Local bills
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). This includes
determining the validity or invalidity of a
proclamation declaring a particular candidate as the
winner.

Note: The electoral tribunal has a rule making


power (Lazatin v. HRET, G.R. No. L-84297,
December 8, 1988)
Note: It is independent of the Houses of
Congress and its decisions may be
reviewed by the Supreme Court only upon
showing of grave abuse of discretion.

Note: The mere fact that the members of


either the Senate or the House sitting on
the electoral tribunal are those which are
sought to be disqualified due to the filing of
an election contest against them does not
warrant all of them from being disqualified
from sitting in the ET.
What is an election contest?
Where a defeated candidate challenges the
qualification and claims for himself the seat
of the proclaimed winner.

Note: In the absence of an election contest,


ET is without jurisdiction. However, the
power of each House to expel its members
or ever to defer their oath taking until their
qualifications are determined may still be
exercised even without an election contes.
What are the valid grounds or just
causes for termination of membership
to the tribunal?

1. Expiration of Congressional term of


Office
2. Death or permanent disability
3. Resignation from political party which
one represents in the tribunal
4. Removal from office for other valid
reasons
COMMISSION
ON
APPOINTMENTS
What is the composition of the CA?

1. Senate President as ex-officio


chairman;

2. 12 Senators; and

3. 12 Members of the HoR.


How are the 12 Senators and 12
Representatives chosen?
They are elected on the basis of proportional
representation from the political parties and party-list
organizations.
Note: The authority of the HoR to change its
representation in the CA to reflect at any time the
changes that may transpire in the political alignments of
its membership. It is understood that such changes in
membership must be permanent and do not include the
temporary alliances or factional divisions not involving
severance of political loyalties or formal disqualification
and permanent shifts of allegiance from one political
party to another (Daza v. Singson GR 86344 December
12, 1989)
The provision of Sec. 18 on proportional representation is
mandatory in character and does not leave any discretion
to the majority party in the Senate to disobey or disregard
the rule on proportional representation;

otherwise, the party with a majority representation in the


Senate or the HoR can by sheer force of numbers impose
its will on the hapless minority.

By requiring a proportional representation in the CA, Sec.


18 in effect works as a check on the majority party in the
Senate and helps maintain the balance of power. No party
can claim more than what it is entitled to under such rule
(Guingona, Jr. v. Gonzales GR 105409 March 1, 1993)
What are the rules on voting?

1. The CA shall rule by a majority vote of all


the Members.

2. The Chairman shall only vote in case of


tie.

3. The CA shall act on all appointments


within 30 session days from their
submission to Congress.
What is the jurisdiction of the CA?
CA shall confirm the appointments by the
President with respect to the following positions:
HAPCOO
1. Heads of the Executive Departments.
(except if it is the Vice-President who is
appointed to the post)
2. Ambassador. Other Public ministers or
Consuls.
3. Officers of the AFP from the rank of Colonel or
Naval Captain; and
4. Other officers whose appointments are vested in
him by the Constitution (i.e. COMELEC
members)
What are the limitations on
confirmation?

1. Congress cannot by law prescribe that the


appointment of a person to an office
created by such law be subject to
confirmation by the CA.
2. Appointments extended by the President
to the above-mentioned positions while
Congress is not in session shall only be
effective until disapproval by the CA or
until the next adjournment of Congress.
POWERS
OF
CONGRESS
What are the legislative powers of
Congress?

1. General plenary power (Sec.1, Art. VI);

2. Specific power of appropriation;

3. Taxation and expropriation;

4. Legislative investigation;

5. Question hour.
What bills must originate from the
House of Representatives?
APRIL
1. Appropriation bills
2. Private bills
3. Revenue bills
4. Increase of Public debt
5. Local bills

Note: The initiative for filing of ART Bills must come from the
House, but it does not prohibit the filing in the Senate of a
substitute bill in anticipation of its receipt of the bill from the
House, so long as the action by the Senate is withheld
pending the receipt of the House bill (Tolentino v. Sec. of
Finance, G.R. No. 115455, August 25, 1994)
What is an appropriations bill?

It is a bill, the primary and specific aim of


which is to appropriate a sum of money
from the public treasury.

Note: A bill creating a new office, and


appropriating funds of it is not an
appropriation bill.
What is a revenue bill?

A revenue bill is one specifically designed


to raise money or revenue through
imposition or levy.
What is a bill of local application?
It is a bill asking for the conversion of a municipality
into a city, is deemed to have originated from the
House provided that the bill of the House was filed
prior to the filing of the bill in the Senate even if, in the
end, the Senate approved its own version.

Note: Every bill shall embrace only one subject, as


expressed in the title thereof, which does not have to
be a complete catalogue of everything stated in the
bill. A title expressing the general subject of the bill
and all the provisions of the statute are germane to
the general subject is sufficient.
WAR
POWERS
What is the policy of the
Philippines regarding war?

The Philippines renounces war as an


instrument of national policy.
What is the voting requirement to
declare the existence of a state of
war?
1. 2/3 of both Houses;
2. In joint session;
3. Voting separately.

Note: Even though the legislature can declare


existence of war and enact measures to
support it, the actual power to make war is
lodged nontheless in the executive.
POWER OF
APPROPRIATION
What is power of appropriation?

The spending power, called the “power


of the purse” belongs to Congress,
subject only to the veto power of the
President. It carries with it the power to
specify the project or activity to be
funded under the appropriation law.
What are the Constitutional rules on
General Appropriations Laws?
1. Congress may not increase appropriations
recommended by the President for the operations of
the government;
2. From, content and manner of preparation of budget
shall be provided by law;
3. No (provision or enactment shall be embraced in the
bill unless it releases specifically to some particular
appropriation therein;
4. Procedure fro approving appropriations for
Congress shall be the same as that of other
departments in order to prevent sub-rosa
appropriation by Congress;
Prohibition against transfer of appropriations (doctrine
of augmentation), however

a. President
b. Senate President
c. Speaker of the HoR
d. Chief Justice
e. Heads of Constitutional Commissions 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
6. Prohibitions against appropriations for sectarian
benefit; and

7. Automatic re-appropriation- if, by the end of any


fiscal year, the Congress shall have failed to
pass the general appropriations bill for the
ensuing fiscal year, the general appropriations
law for the preceding fiscal year shall be
deemed reenacted and shall remain in force and
effect until the general appropriations bill is
passed by the Congress.
Is the budget bill final?

No. It is subject to the approval of Congress but the


President may exercise his or her veto power.

May Congress modify the budget


proposed by the President?

Yes. However, Congress may only reduce but not


increase the budget.
May Congress increase its outlay for
itself, the Judiciary and other
Constitutional bodies?

No. Because it is presumed that their needs have


already been identified while drafting the budget.

Note: Congress may not decrease the appropriation


for the Judiciary below the amount appropriated for
the previous year.
LEGISLATIVE
INQUIRIES
What is the scope of subject matter
of the power to conduct inquiries in
aid of legislation?
Indefinite. The field of legislation is very
wide as compared to that of the American
Congress. And because of such, the field
of inquiry is also very broad. It may cover
administrative inquiries, social, economic,
political problem (inquiries), discipline of
members, etc. Suffice it to say that it is co-
extensive with legislative power. (Arnault
v. Nazareno, GR L-3820 July 18, 1950)
The following limitations, however, should be taken into
consideration:

a. Constitutional rights to counsel and against self


incrimination – even if the investigation is not a
criminal investigation, the information divulge therein
may be used in criminal prosecution (Under Sec. 21,
Art. VI, it is provided that the rights of 1987
Constitution, the persons appearing in or affected by
such inquiries shall be respected)

b. The rules of procedures to be followed in such


inquiries shall be published for the guidance of those
who will be summoned. This must be strictly
followed so that the inquires are confined only to the
legislative purpose. This is also to avoid abuses.
c. The investigation must be in aid of
legislation.
d. Congress may not summon the President
as witness or investigate the latter in view
of the doctrine of separation of powers
except in impeachment cases.
Note: It is the President’s prerogative to
divulge or not the information which he
deems confidential or prudent/in the public
interest.
e. Congress may no longer punish the witness
in contempt after its final adjournment. The
basis of the power to impose such penalty is
the right to self-preservation. And such right
is enforceable only during the existence of
the legislature (Lopez v. Delos Reyes GR L-
34361 Nov. 5, 1930)
f. Congress may no longer inquire into the
same justiciable controversy already before
the court (Bengzon v. Blue Ribbon
Committee, GR 89914 Nov. 20, 1991)
Senator Enrile accused the Vice Chairman
of the Standard Chartered Bank of violating
the Securities Regulation Code for selling
unregistered foreign securities. This has
led the Senate to conduct investigation in
aid of legislations. SCB refused to attend
the investigation proceedings on the ground
that criminal and civil cases involving the
same issues were pending in courts.
Decide. (2009 Bar Question)
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)
What is the so-called ‘Question Hour’?
The heads of departments may upon their own initiative
with the consent of the President, or upon the request
of either House, as the rules of each house shall
provide, appear before and be heard by such House on
any matter pertaining to their departments.
Written questions shall be submitted to the President of
the Senate or the Speaker of the HoR at least 3 days
before their scheduled appearance.
Interpellations shall not be limited to written questions,
but it may cover matters related thereto. (Sec. 22, Art.
VI).
Distinguish Question Hour from
Legislative Investigation.
Sec. 22 (QH) Congress’ oversight function –
limited to information gathering – attendance of
exec officials subject to the president’s
consent;
Sec. 21 (LI) is plenary -- objective is to elicit
information that may be used for legislation.
The president cannot prohibit the attendance of
witnesses.
(Senate v. Ermita, G.R. Nos. 169777, 20 April
2006)
R.A. 9335 was enacted to encourage BIR and BOC
officials and employees to exceed their revenue
targets by providing a system of rewards and
sanctions.

The IRR of R.A. 9335 was to be approved by a


Joint Congressional Oversight Committee created
for such purpose.

Does the creation of a congressional oversight


committee violate the doctrine of separation of
powers?
Yes. Congress may not vest itself, any of its
committees or its members with either
executive or judicial power.

This amounts to a LEGISLATIVE VETO that


is unconstitutional.

Thus, any post-enactment congressional


measure should be limited to scrutiny and
investigation.
What is legislative veto? Is it valid
in the Philippines?
It is a statutory provision requiring the
President or an administrative agency to
present the proposed IRR of a law to
Congress which, by itself or through a
committee formed by it, retains the right
to approve or disapprove such
regulations before they take effect.
Legislative veto is not allowed in the
Philippines.
Can Congress exercise discretion to
approve or disapprove an IRR based
on a determination of whether or not it
conformed to the law?
In exercising discretion to approve or
disapprove the IRR based on a
determination of whether or not it conformed
to the law, Congress arrogated judicial
power unto itself, a power exclusively vested
in the Supreme Court by the Constitution.
Hence, it violates the doctrine of separation
of powers.
What is executive privilege?
Executive privilege exempts the executive from disclosure
requirements applicable to the ordinary citizen or
organization where such exemption is necessary to the
discharge of highly important executive responsibilities
involved in maintaining governmental operations, and
extends not only to military and diplomatic secrets but also
to documents integral to an appropriate exercise of the
executive’s domestic decisional and policy-making
function, that is, those documents reflecting frank
expression necessary in intra-governmental advisory and
deliberate communications.

Note: Executive privilege is invoked in relation to specific


categories of information and not to categories of persons.
Who may invoke executive privilege?
It is only the President who has the power to
invoke the privilege.

She may of course authorize the Executive


Secretary to invoke the privilege on her
behalf, in which case the Executive
Secretary must state that the authority is
“By order of the President”.
(Senate v. Ermita, G.R. Nos. 169777, 20
April 2006).
How is the claim of executive privilege
properly invoked?
There must be a formal claim of privilege,
lodged by the Head of the department which
has control over the matter.
A formal and proper claim of executive
privilege requires “a precise and certain
reason” for preserving their confidentiality.
Neri v. Senate, G.R. No. 180643, 25 March 2008.
Can Congress require the executive to
state the reasons for the claim with
particularity?
No. Congress must not require the
executive to state the reasons for the claim
with such particularity as to compel
disclosure of the information which the
privilege is meant to protect
(Senate v. Ermita, G.R. No. 169777, 20 April
2006).
What are the elements of presidential
communications privilege?
1. The protected communication must relate to a
“quintessential and non-delegable presidential power”.
2. The communication must be authored or “solicited and
received” by a close advisor of the President or the
President himself. The judicial test is that an advisor
must be in “operational proximity” with the President.
3. The presidential communications privilege remains a
qualified privilege that may be overcome by a showing
of adequate need, such the information sought “likely
contains important evidence” and by the unavailability
of the information elsewhere by an appropriate
investigating authority. (Neri v. Senate, G.R. No.
180643, 25 March 2008).
The House of Representatives’ House Committee
conducted an inquiry on the Japan-Philippines Economic
Partnership Agreement (JPEPA), then being negotitated by
the Philippine Government. The House Committee
requested DTI Usec. Aquino to furnish it with a copy of the
latest draft of the JPEPA. Aquino replied that he shall
provide a copy thereof once the negotiations are completed.

A petition was filed with the SC which seeks to obtain a copy


of the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and
annexes thereto. Aquino, et al. invoked executive privilege
based on the ground that the information sought pertains to
diplomatic negotiations then in progress. On the other
hand, Akbayan, et al. for their part invoke their right to
information on matters of public concern.
Are matters involving diplomatic
negotiations covered by executive
privilege?
Yes. It is clear that while the final text of the JPEPA
may not be kept perpetually confidential, the offers
exchanged by the parties during the negotiations
continue to be privilege even after the JPEPA is
published. Disclosing these offers could impair the
ability of the Philippines to deal not only with Japan but
with other foreign governments in future negotiations
(AKBAYAN Citizen’s Action Party v. Aquino et al., G.R.
No. 170516, 16 July 2008)

Note: Such privilege is only presumptive.


May the Senate be allowed to continue the
conduct of a legislative inquiry without a
duly published rules of procedure?
The phrase “duly published rules of
procedures” requires the Senate of every
Congress to publish its rules of procedure
governing inquiries in aid of legislation
because every Senate is distinct from the on
before it or after it. (Garcillano v. House of
Representatives Committee on Public
Information, et al., G.R. No. 170338, 23
December 2008.)
Is the present Senate a continuing
legislative body?
The present Senate under the 1987 Constitution is no longer
a continuing legislative body. The present Senate has 24
members, twelve of whom are elected every 3 years for a
term of 6 years each. Thus, the term of 12 Senators expires
every 3 years, leaving less than a majority of Senators to
continue into the next Congress.

Note: There is no debate that the Senate as an institution is


“continuing”, as it is not dissolved as an entity with each
national election or change in the composition of its
members. However, in the conduct of its day-to-day business
the Senate of each Congress acts separately and
independently of the Senate of the Congress before it.
Undeniably, all pending matters and proceedings,
i.e. unpassed bills and even legislative
investigations, are considered terminated upon the
expiration of that Congress and it is merely optional
on the Senate of the succeeding Congress to take
up such unfinished matters, not in the same status,
but as if presented for the first time.

The logic is that the Senate of the succeeding


Congress (which will typically have a different
composition as that of the previous Congress)
should not be bound by the acts and deliberations
of the Senate of which they had no part.
Is the publication of the rules in the
Internet a valid publication?
No. The E-commerce Act of 2000
merely recognizes the admissibility in
evidence of electronic data messages
and/or electronic documents.

It does not make the internet a medium


for publishing laws, rules and
regulations.
LEGISLATIVE
PROCESS
What is the doctrine of Shifting
Majority?

For each House of Congress to pass a bill,


only the votes of the majority of those
present in the session, there being a
quorum, is required.
Note: The basis for determining the
existence of a quorum in the Senate shall
be the total number of Senators who are
within the coercive jurisdiction of the
Senate.
How does a bill become a law?
1. Approved and signed by the President;
2. Presidential veto overridden by 2/3 vote of all
members of both Houses;
3. Failure of the President to veto the bill and to
return it with his objections to the House
where it originated, within 30 days after the
date of receipt;
4. A bill calling a special election for President
and Vice-President under Sec. 10, Art. VII
becomes a law upon third reading and final
reading.
How many readings must a bill
undergo before it may become a
law?
Each bill must pass 3 readings in both Houses.

GR: Each reading shall be held on separate days


and printed copies thereof in its final form shall be
distributed to its Members 3 days before its
passage.

XPN: If a bill is certified as urgent by the President


as to the necessity of its immediate enactment to
meet a public calamity or emergency, the 3
readings can be held on the same day.
What is the rule on presidential
veto?

GR: If the President disapproves a bill


enacted by Congress, he should veto the
entire bill. He is not allowed to veto
separate items of a bill.

XPN: Item-veto is allowed in case of


appropriation, revenue, and tariff bills.
XPN to the XPN:

1. Doctrine of Inappropriate Provisions – a


provision that is constitutionally inappropriate
for an appropriation bill may be singled out for
veto even if it is not an appropriation or
revenue item.

2. Executive Impoundment – refusal of the


President to spend funds already allocated by
Congress for specific purpose. It is the failure
to spend or obligate budget authority of any
type.
When is there a Pocket Veto?
Occurs when:

1. The President fails to act on a bill and


2. The reason he does not return the bill to the
Congress is that Congress is not in session.

Note: Pocket veto is not applicable in the


Philippines because inaction by the President for
30 days never produces a veto even if Congress
is in recess. The President must still act to veto
the bill and communicate his veto to Congress
without need of returning the vetoed bill with his
veto message.
EXECUTIVE
DEPARTMENT
What is Executive Power?
It is a power to enforce and administer laws.

The President shall have control of all


executive departments, bureaus and offices.
He shall ensure that laws are faithfully
executed.

Note: Until and unless a law if declared


unconstitutional, the president has a duty to
execute it regardless of his doubts as to its
validity. This is known as the faithful execution
clause.
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)
What are the qualifications of the
President and the Vice-President?
No person maybe elected President and Vice-
President unless he is:

1. Natural-born Citizen of the Philippines;


2. Able to read and write;
3. Registered voter;
4. At least 40 years of age on the date of the
election; and
5. Resident of the Philippines for at least 10 years
immediately preceding such election.

Note: Enumeration is exclusive.


SALARIES
AND
EMOLUMENTS
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.
How is the salary of the President
determined?
Official salaries are determined by law.
Note: Salaries cannot be decreased during
the tenure of the President and the VP.
Increases take effect only after the expiration
of the term of the incumbent during which the
increase was approved. They are also
prohibited from receiving any emolument from
the government or any other source during
their tenure.
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.
5. Temporary disability of the President: the temporary
inability of the president to discharge his duties may be
raised in either two ways:

a. By the President himself, when he sends a written


declaration to the Senate President and the Speaker of
the HoR. In this case, the VP will be Acting President
until the President transmits a written declaration to the
contrary.

b. When a majority of the Cabinet members transmit to the


Senate President and the Speaker of the HoR their
written declaration.

i. The VP will immediately be Acting President


ii. BUT: If the President transmits a written
declaration that he is not disabled, he
reassumes his position.
What is the form of resignation?
The validity of a resignation is
not governed by any formal
requirement as to form – it can
be oral or written; express or
implied as long as the
resignation is clear, it must be
given effect. (Estrada v. Arroyo)
iii. If within 5 days after the President reassumes his
position, the majority of the Cabinet retransmits their
written declaration, Congress shall decide the issue. In
this event, Congress shall reconvene within 48 hours if it
is not in session, without need of a call.

iv. Within 10 days after Congress is required to


assemble, or 12 days if Congress is not in session, a 2/3
majority of both Houses, voting separately, is needed to
find the President temporarily disabled, in which case,
the VP will be Acting President.

6. Presidential Illness:

i. If the President is seriously ill, the public must be informed


thereof.

ii. Even during such illness, the National Security Adviser, the
Secretary of Foreign Affairs, and the Chief of Staff of the AFP are
entitled access to the President.
What are the elements of resignation?

1. There must be intent to resign, which is coupled


with
2. Act of relinquishment

Note: In the law of Public Officers, an essential


element of resignation is the acceptance by the
proper authority.

This element, however, cannot be applied in the


instances when the President resigns. The
president is the highest officer of the land;
hence, there is no one to act on his resignation.
What is the totality of circumstances
test and constructive resignation?
Estrada did not write any formal letter of resignation
before leaving Malacanang.
Thus, whether or not he resigned is to be determined
from his acts and omissions before, during and after
January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial
evidence bearing a material relevance on the issue using
this test, his resignation cannot be doubted.
This includes the diary of Angara, as published in the
Inquirer. (Estrada v. Arroyo)
PROHIBITIONS
The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants, unless
otherwise provided in this Constitution shall:

a. Not hold any other office or employment during


their tenure.
b. Not, during said tenure, directly or indirectly
practice any other profession, participate in any
business, or be financially interested in any
contract with, or in any franchise, or special
privilege granted by the Government or any
subdivision, agency or instrumentality thereof,
including GOCC’s or their subsidiaries.
c. Strictly avoid conflict of interest in the conduct of their office.

d. The spouse and relatives by consanguinity or affinity within


the fourth civil degree of the President shall not during his
tenure be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or
controlled corporations and their subsidiaries.

Note: If the spouse, etc., was already in any of the above


offices at the time before his/hers spouse became
President, he/she may continue in office. What is prohibited
is appointment and reappointment, not continuation in office.

Spouses, etc., can be appointed to the judiciary and as


ambassadors and consuls.
The Chief Presidential Legal
Counsel was also appointed as
Chairman of the PCGG. May the two
offices be held by the same person?
No. The two offices are incompatible.
Without question, the PCGG is an agency
under the Executive Department. Thus, the
actions of the PCGG Chairman are subject
to the review of the CPLC.
What is the nature of the appointing
power of the President?
The power to appoint is Executive in
nature. While Congress and the
Constitution in certain cases may
prescribe the qualifications for particular
offices, the determination of who among
those who are qualified will be appointed
is the President’s prerogative.
Define “Appointment”.

It is defined as the selection, by the


authority vested with the power, of an
individual who is to exercise the functions
of a given office.
How are appointments classified?

1. Regular appointment – one made by the


President while the Congress is in session,
takes effect only after confirmation by the CA,
and once approved, continues until the end of
the term of the appointee.

Ad interim appointment – one made by the


President while Congress is not in session,
takes effect immediately, but ceases to be
valid if disapproved by the CA or upon the
next adjournment by Congress.
2. Permanent appointments – those
extended to persons possessing the
requisite eligibility and are thus
protected by the constitutional
guarantee of security of tenure.

Temporary appointments – given to


persons without the requisite
eligibility, revocable at will and without
the necessity of just cause or a valid
investigation.
What is the appointing procedure for
those that need CA confirmation?
1. Nomination by the President;
2. Confirmation by the CA;
3. Issuance of commission; and
4. Acceptance by the appointee.

Note: At anytime before all four steps have been


complied with, the President can withdraw the
nomination/appointment.

In ad interim appointments, steps 1, 3 and 4


precede step 2.
What are the four instances where
confirmation of the Commission on
Appointments is required?

1. Heads of executive departments

GR: Appointment of cabinet secretaries


requires Confirmation.

XPN: Vice-President may be appointed as


a member of the Cabinet and such
appointment requires no confirmation.
2. Ambassadors, other public ministers and consuls –
those connected with the diplomatic and consular
services of the country.

3. Officers of the armed forces from the rank of colonel


or naval captain.

Note: PNP of equivalent ranks and Philippine Coast


Guard are not included.

4. Other officers of the government whose appointments


are vested in him in this Constitution.

Note: Under this category, Chairmen and members of


CSC, Comelec, COA, and regular members of the
JBC are included.
What are the six categories of officials who are
subject to the appointing power of the President?

a. Head of executive departments;


b. Ambassadors, other public ministers and consuls;
c. Officers of the armed forces from the rank of
colonel or naval captain;
d. Other officers whose appointments are vested in
him by the Constitution;
e. All other officers of the government whose
appointments are not otherwise provided by law;
and
f. Those that he may be authorized by law to appoint.
(Cruz, Philippine Political Law, 1998 ed., pp. 204-205)
President Arroyo issued appointments as acting
secretaries of various departments. The appointees
took their oath of office and assumed duties as
acting secretaries.

Petitioner sought to declare unconstitutional the


appointments issued by the President.

Was President Arroyo’s appointment of acting


secretaries constitutional, even without the consent
of the Commission on Appointments while Congress
is in session?
YES. The essence of an appointment in an acting capacity is its
temporary nature. It is a stop-gap measure intended to fill an
office for a limited time until the appointment of a permanent
occupant to the office.

In case of vacancy in the office of a department secretary, the


President must necessarily appoint an alter ego of her choice as
acting secretary before the permanent appointee of her choice
could assume office.

The office of a department secretary may become vacant while


Congress in session. Since a department secretary is the alter
ego of the President, the acting appointee to the office must
necessarily have the President’s confidence.

Note: Acting appointments cannot exceed one year.


May an appointment be the subject
of a judicial review?

Appointment is generally a political


question. So long as the appointee
satisfies the minimum requirements
prescribed by law for the position, the
appointment may not be subject to judicial
review.
What are the limitations regarding the
appointing power of the president?
a. The spouse and relatives by consanguinity or affinity
within the 4th civil degree of the President shall not,
during his “tenure” be appointed:

i. As members of the Constitutional Commissions;


ii. Member of the Office of Ombudsman;
iii. Secretaries;
iv. Undersecretaries;
v. Chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and
their subsidiaries.
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)
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 ."
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.
COMMANDER-IN-CHIEF
POWERS
What are the kinds of Military
Power?
a. Command of the Armed Forces (Power of the
Sword) – The Commander-in-Chief clause
vests on the President, as Commander-in-
Chief absolute authority over the persons and
actions of the members of the armed forces.
It reposes final authority, control and
supervision of the AFP to the President.
b. Calling-out powers – Call the armed forces to
prevent or suppress lawless violence, invasion,
or rebellion. The only criterion for the exercise
of this power is that whenever it becomes
necessary.

Note: The Constitution does not require the


President to declare a state of rebellion to
exercise her calling out power grants. Section
18, Article VII grants the President, as
Commander-in-Chief a “sequence” of
“graduated powers”.
c. He may suspend the privilege of the writ of
habeas corpus

Note: A “writ of habeas corpus” is an order from


the court commanding a detaining officer to
inform the court if he has the person in
custody, and what is his basis in detaining that
person.

The “privilege of the writ” is that portion of the


writ requiring the detaining officer to show
cause why he should not be tested. Note that
it is the privilege that is suspended, not the
writ itself.
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.
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
Authority of Congress to revoke or extend the
effectivity of proclamation: By majority vote of all
of its members voting jointly

Note: Supreme Court cannot rule upon the


correctness of the President’s actions but only
upon its arbitrariness.

While the suspension of the privilege of writ and the


proclamation of martial law is subject to judicial
review, the actual use by the President of the
armed forces is not. Thus, troop deployments in
times of war are subject to the President’s
judgment and discretion.
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.
May the President as Commander-in-Chief prevent
Army Generals from appearing in a legislative
investigation and, if disobeyed, is the General subject
to court martial?

The General is subject to court martial and


must justify his disobedience to the
President.
However, Congress may challenge the
President’s order before the Supreme
Court. (Gudani v. Executive Secretary,
2009)
What are the limitations on the
declaration of martial law?
Martial law does not:

1. Suspend the operation of the Constitution


2. Supplant the functioning of the civil courts or
legislative assembles;
3. Authorize conferment of jurisdiction over
civilians where civil courts are able to
function; and
4. Automatically suspend the privilege of the
writ of habeas corpus.
What are the limitations on the
suspension of the privilege of writ
of habeas corpus?

1. Applies only to persons judicially charged


for rebellion or offenses inherent in or
directly connected with invasion;

2. Anyone arrested or detained during


suspension must be charged within 3
days. Otherwise, he should be released.
PARDONING
POWER
PARDONING
POWER/EXECUTIVE CLEMENCY
SAMPLE PROBLEM
In connection with the May 1987 Congressional
elections, Luis Millanes was prosecuted for and
convicted of an election offense and was sentenced
to suffer imprisonment for six years.

The court did not impose the additional penalty of


disqualification to hold public office and of
deprivation of the right of suffrage as provided for in
Section 164 of the Omnibus Election Code of the
Philippines
In April 1991, the President granted him absolute
pardon on the basis of a strong recommendation of
the Board of Pardons and Parole.
Then for the election in May 1992, Luis Millanes
files his certificate of candidacy for the office of
Mayor in his municipality.
b. Is the pardon valid?
Suggested Answer:
b. The pardon is void, since Luis Millanes was
convicted for the commission of an election offense
and his pardon was not made upon the
recommendation of the COMELEC. Under Article IX,
C, Sec. 5 of the Constitution, no pardon for violation
of an election law may be granted without the
favorable recommendation of the COMELEC.
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.
SAMPLE PROBLEM
The National Unification Commission has
recommended the grant of absolute and
unconditional amnesty to all rebels.

There is the view that it is not necessary for the


rebels to admit the commission of the crime
charged, it being enough that the offense falls within
the scope of the amnesty proclamation, following the
doctrine laid down in Barrioquito vs. Fernandez, 82
Phil. 642.

In other words, admission of guilt is not a condition


since qua non for the availment of amnesty. Is this
correct? Explain.
Suggested Answer:

The view that it is not necessary for rebels to


admit the commission of the crime charged in order
to avail themselves of the benefits of amnesty is not
correct. As stated in Vera v. People, 7 SCRA 156, the
doctrine laid down in Barrioquinto vs. Fernandez, 82
Phil. 642 have been overturned.

Amnesty presupposes the commission of a crime. It


is inconsistent for someone to seek for forgiveness
for a crime which he denies having committed.
(People vs. Pasilan, 14 SCRA 694).
SAMPLE PROBLEM

A. What are the constitutional limitations on the


pardoning power of the President?

B. Distinguish between pardon and amnesty.

C. City Assistant Treasurer was convicted of Estafa


through falsification of public document. While serving
sentence, he was granted absolute pardon by the
President.

1.) Assuming that the position of Assistant City


Treasurer has remained vacant, would he be entitled to
a reinstatement without the need of a new
appointment? Explain.

2.) If later the same position becomes vacant, could he


reapply and be reappointed? Explain.
Suggested Answer:

A. The following are the limitations on the pardoning


power of the President.

1. It cannot be granted in cases of impeachment;

2. Reprieves, commutations, pardon, and remission


of fines and forfeitures can be granted only after
conviction by final judgment.

3. The favorable recommendation of the Commission


on Elections is required for violation of election
laws, rules and regulations.
B. According to Barrioquinto v. Fernandez, 82 Phil. 642, the
following are the distinctions between pardon and 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
6. 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.
C. 1.As held in Monsanto v. Factoran, 170
SCRA 190, pardon merely frees the individual
from all the penalties and legal disabilities
imposed upon him because of his
conviction. It does not restore him to the
public office relinquished by reason of the
conviction.

2. The Assistant City Treasurer can reapply


and be appointed to the position, since the
pardon removed the disqualification to hold
public office.
SAMPLE PROBLEM

Lucas, a ranking member of the NDF, was captured by


policemen while about to board a passenger bus
bound for Sorsogon. Charged with rebellion he
pleaded not guilty when arraigned.

Before trial he was granted absolute pardon by the


President to allow him to participate in the peace talks
between the government and the communist rebels.
1. Is the pardon of the President valid? Explain.

2. Assuming that the pardon is valid, can Lucas


reject it? Explain.

3. Instead of a pardon, may the President grant the


accused amnesty if favorably recommended by
the National Amnesty Commission? Explain.

4. May the accused avail of the benefits of amnesty


despite the fact that he continued to profess
innocence? Explain.
Suggested Answer:

1. The pardon is not valid. Under Section 19, Article


VII of the 1987 Constitution, pardon may be
granted only after conviction by final judgment.

2. Yes. Lucas can reject the pardon. As held in


United States vs. Wilson, 7 Pet. 150 and Burdick
vs. United States, 274 U.S. 480, acceptance is
essential to complete the pardon and the pardon
may be rejected by the person to whom it is
tendered, for it may inflict consequences of
greater disgrace than those from which it
purports to relieve.
3. The President may grant the accused
amnesty. According to Barrioquinto vs.
Fernandez, 82 Phil. 642, Amnesty may be
granted before or after the institution of the
criminal prosecution.

4. No, the accused cannot avail of the


benefits of amnesty if he continues to
profess his innocence. In Vera vs. People, 7
SCRA 152, since amnesty presupposes the
commission of a crime, it is inconsistent for
an accused to seek forgiveness for
something which he claims he has not
committed.
SAMPLE PROBLEM

Bruno still had several years to serve on his


sentence when he was conditionally pardoned by the
President. Among the conditions imposed was that
he would “not again violate any of the penal laws of
the Philippines.” Bruno accepted all of the
conditions and was released.

Shortly thereafter, Bruno was charged with 20


counts of estafa. He was then incarcerated to serve
the unexpired portion of his sentence following the
revocation by the President of the pardon. Bruno’s
family filed a petition for habeas corpus, alleging
that it was error to have him recommitted as the
charges were false, in fact, half of them were already
dismissed. Resolve the petition with reasons.
Suggested Answer:
The petition should not be given due course. The
grant of pardon and the determination of the terms
and conditions of a conditional pardon are PURELY
EXECUTIVE ACTS which are not subject to judicial
scrutiny. The acceptance thereof by the convict or
prisoner carried with it the authority or power of the
Executive to determine whether a condition or
conditions of the pardon has or have been violated.

Where the President opts to revoke the conditional


pardon given, no judicial pronouncement of guilt of a
subsequent crime is necessary. The determination
of the occurrence of a breach of a condition of a
pardon, and the proper consequences of such
breach, is a purely executive act, not subject to
judicial scrutiny. (Torres v. Gonzales, G.R. No. 76872,
July 23, 1987)
Q8 (08)
ST, a Regional Trial Court judge who falsified his
Certificate of Service, was found liable by the Supreme
Court for serious misconduct and inefficiency, and
meted the penalty of suspension form office for 6
months. Subsequently, ST filed a petition for executive
clemency with the Office of the President. The
Executive Secretary, acting on said petition issued a
resolution granting ST executive clemency. Is the grant
of executive clemency valid? Why or why not? (6%)
Suggested Answer:
The grant of executive clemency is not valid.

Under the law, the Presidential prerogative in


granting executive clemency in administrative cases
covers only the executive branch of the government
but not the legislative nor the judiciary. To do so would
violate the principle of separation of powers.
DIPLOMATIC
POWERS
What are the President’s powers
over the foreign affairs?

The President is the chief architect of foreign


relations. By reason of the President’s unique
position as head of State, he is the logical
choice as the nation’s spokesman in foreign
relations. The Senate, on the other hand, is
granted the right to share in the treaty-making
power of the President by concurring with him
with the right to amend.
What is the scope of the foreign
relations powers of the President?
1. Power to negotiate treaties and other international
agreements. However such treaty or international
agreement requires the concurrence of the Senate
which may opt to do the following:

a. Approve with 2/3 majority;


b. Disapprove outright;
c. Approve conditionally, with suggested amendments
which if re-negotiated and the Senate’s suggestions
are incorporated, the treaty will go into effect without
need of further approval.
Note: If renegotiated, there is no treaty. If there’s no conflict
between treaty and municipal law then under:

a. Philippine Courts: The later enactment will prevail, be it


treaty or law, as it is the latest expression of the State’s
will.

b. International Tribunal: Treaty will always prevail. A state


cannot plead its municipal law to justify non-compliance
with an int’l. obligation.

Note: While our municipal law make a distinction between


international agreements and executive agreements, with
the former requiring Senate approval and the latter no
needing the same, under int’l law, there is no such
distinction.
RP and the ICC

• The Philippine Government signed the


Rome Statute of the International Criminal
Court but refused to submit it to the Senate
for its concurrence.
• Sen. Pimentel filed a petition for
mandamus to compel the executive
department to transmit the signed text of
the treaty to the Senate of the Philippines
for ratification. Will the suit prosper?
Who has the power to ratify?

• Section 21, Article VII of the 1987


Constitution provides that “no
treaty or international
agreement shall be valid and
effective unless concurred in by
at least two-thirds of all the
Members of the Senate.”
Who has the power to ratify?
• The power to ratify is vested in the President.
• The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the
ratification.
• Hence, it is within the authority of the President
to refuse to submit a treaty to the Senate for its
ratification.
• The decision not to ratify a treaty is within the
competence of the President alone, which
cannot be encroached by the Courts via a writ of
mandamus. Pimentel v. Romulo [G.R. No. 158088, July 6, 2005]
International Implications

• When a treaty is signed by an


official representative of a State,
does this mean that the State is
already bound by the provisions of
the treaty?
Pimentel v. Romulo

• No. The signature does not signify the final


consent of the state to the treaty.
• It is the ratification that binds the state to the
provisions thereof.
• Ratification is the act by which the provisions of a
treaty are formally confirmed and approved by a
State.
• There is no legal obligation to ratify a treaty.
President’s Immunity from Suit
• According to the absolute theory, a
sovereign cannot, without its consent, be
made a respondent in the courts of another
sovereign.
• According to the restrictive theory, the
immunity of the sovereign is recognized
only with regard to public acts or acts jure
imperii of a state, but not with regard to
private acts or acts jure gestionis
HOLY SEE V. JUDGE ROSARIO

• The Catholic Church entered into a contract with


Starlight Realty for the sale of the vacation house
of the papal nuncio.
• After receiving earnest money, the church sold
the same property to another buyer.
• Aggrieved, Starlight Realty sued the church for
breach.
• Summons was issued against the Holy See and
the Pope.
• The DFA certified that the Holy See (Vatican) is a
State and enjoys state immunity from suit.
Is the Vatican a State?

- NO. Under the four elements of a state (people,


territory, sovereignty, government).
- Yes. Under the Lateran Treaty of 1929.
- Factual determination by the DFA is binding upon
the courts.
- A State, though immuned, may still be sued for
acts jure gestionis.
- Here, the sale of the vacation house of the papal
nuncio is an act jure imperii.
IMMUNITY FROM SUIT
What is the rationale behind the immunity
from suit of the President?
a. The singular importance of the Presidency
and his high visibility.
b. The distraction that suits would bring to such
an important official laden with enormous
responsibility.
c. The consequence that the President might
hesitate at the moment of greatest peril to the
nation if the knows that he would be held
liable later on.
Does the President’s immunity
from suit extend to his alter egos?
No.

Does the President’s immunity


from suit extend even beyond his
term?
Yes. So long as the act was done during
his term.
Note: The President cannot, by executive
agreement, undertake an obligation which
indirectly circumvents a legal prohibition.

2. Power to appoint ambassadors, other


public ministers, and consuls.
3. Power to receive ambassadors and other
public ministers accredited to the
Philippines.
4. Power to contract and guarantee foreign
loans on behalf of RP.
5. Power to deport aliens:
a. this power is vested in the President by virtue of
his office, subject only to restrictions as may be
provided by legislation as regards to the grounds
for deportation.
b. in the absence of any legislative restriction to
authority, the President may still exercise this
power.
c. the power to deport aliens is limited by the
requirements of due process, which entitles the
alien to a full and fair hearing.
d. BUT: the alien is not entitled to bail as a matter of
right.
JUDICIAL
DEPARTMENT
JUDICIAL POWER/REVIEW
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
Bank’s 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.

Alternative Answer:

Since under Sections 1 and 5(2), Article VIII of


the Constitution, the courts are given the power of
judicial review, the measure is void. Such power
must be preserved. The issuance of restraining
orders and injunctions is in aid of the power of
judicial review.
IMPORTANT QUESTIONS

A. Enumerate the cases required by the


Constitution to be heard en banc by the Supreme
Court?

B. What does it mean when a Supreme Court


Justice concurs in a decision pro hac vice? (2%)

C. What is the composition of the Judicial and Bar


Council and the term of office of its regular
members?

D. What do you understand by the mandate of the


Constitution that the judiciary shall enjoy fiscal
autonomy? Cite the constitutional provisions
calculated to bring about the realization of the
said constitutional mandate.
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. When a decision is pro hac vice, it means the ruling
will apply to this particular case only.

C. 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)
D. Under Section 3, Article VIII of the Constitution,
the fiscal autonomy of the Judiciary means that
appropriations for the Judiciary may not be reduced
by the legislature below the amount appropriated for
the previous year and, after approval, shall be
automatically and regularly released.

In Bengzon v. Drilon, 208 SCRA 133, the


Supreme Court explained that fiscal autonomy
contemplates a guarantee of full flexibility to allocate
and utilize resources with the wisdom and dispatch
that the needs require. It recognizes the power and
authority to deny, assess and collect fees, fix rates
of compensation not exceeding the highest rates
authorized by law for compensation and pay plans of
the government and allocate and disburse such
sums as may be provided by law or prescribed by it
in the course of the discharge of its functions.
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.
What are the limitations on
its rule making power?
1. It should provide a simplified and
inexpensive procedure for the speedy
disposition of cases.
2. It should be uniform for all courts of
the same grade.
3. It should not diminish, increase, or
modify substantive rights.
POWER
OF
JUDICIAL
REVIEW
What is the power of
Judicial Review?
The power of the SC to declare a law,
treaty, ordinance and other
governmental act unconstitutional.
What are the requisites of judicial
review?
1. Actual Case – an existing case or controversy which is
both ripe for resolution and susceptible of judicial
determination, and that which is not conjectural or
anticipatory, or that which seeks to resolve hypothetical
or feigned constitutional problems.

Note: A petition raising a constitutional question does not


present an “actual controversy”, unless it alleges a legal
right or power. Moreover, it must show that a conflict of
rights exists, for inherent in the term “controversy” is
the presence of opposing views or contentions. The
controversy must also be justiciable; that is, it must be
susceptible of judicial determination.
2. Proper Party – one who has
sustained or is in immediate danger of
sustaining an injury as a result of the
act complained of. If there is no actual
or potential injury, complainant has no
legal personality to raise Constitutional
questions.
X was elected mayor of Manila on the basis of his
promise to reduce crime and restore peace and order.
Fulfilling his promise he sent out the police to conduct
saturation drives in squatter areas which are known to be
haven of criminals.

The police surrounded the residents of those areas and


required them to line up for inspection, to ferret out
fugitives from justice and suspected criminals. The
affected residents complained to a group of human rights
lawyers who were not residents of those areas.

The lawyers filed a petition in the Supreme Court to


restrain the Mayor. The Mayor contented that the
petitioners are not proper parties. Decide.
ANSWER:
The petitioners were well-meaning citizens but who
are only armed with second-hand knowledge of the
events.

They are not proper parties to challenge the saturation


drives. The case should be remanded to the lower
courts of Manila where the petitioners may present
evidence supporting their allegations and where
specific erring parties may be pinpointed and
prosecuted.

The petitioners only have a generalized interest.


3. Earliest Opportunity – Constitutional question
must be raised at the earliest possible
opportunity, if not raised in pleadings, it cannot
be considered at trial and on appeal. However,
such is not absolute. It is subject to the
following conditions:

a. Criminal case – it may be brought at any


stage of the proceeding according to the
discretion of the judge (trial or appeal)
because no one shall be brought within the
terms of the law who are not clearly within
them and the act shall not be punished when
the law does not clearly punish them.
b. Civil case – it may be brought anytime if the
resolution of the Constitutional issue is inevitable
in resolving the main issue.

c. When the jurisdiction of the lower court is in


question EXCEPT when there is estoppel.

Note: It is not the date of filing of the petition that


determines whether the Constitutional issue was
raised at the earliest opportunity. The earliest
opportunity to raise a Constitutional issue is to raise in
the pleadings before a competent court that can
resolve the same, such that, ‘if it not raised in the
pleadings, it cannot be considered at the trial, and, if
not considered at the trial, it cannot be considered on
appeal.
Note: The Ombudsman has no jurisdiction to entertain
questions on the constitutionality of a law. Thus, when the
issue of constitutionality of Rep. Act. No. 6770 was raised
before the Court of Appeals, which is the competent court,
the constitutional question was raised at the earliest
opportune time.

Note: The NLRC’s foremost function is to administer and


enforce R.A. No. 8042, and not to inquire into the validity of
its provisions. Therefore, even if the issue on the
constitutionality of the subject clause was first raised, not in
petitioner’s appeal with the NLRC, but in his Motion for Partial
Reconsideration with said labor tribunal, and reiterated in his
Petition for Certiorari before the CA. Nonetheless, the issue
is deemed seasonably raised because it is not the NLRC but
the CA which has the competence to resolve the
constitutional issue.
4. Necessity of Deciding Constitutional
Question – as joint act of the
legislative and executive authorities,
a law is supposed to have been
carefully studied and determined to
be Constitutional before it was finally
enacated. As long as there are
other basis which courts can use for
decision, Constitutionality of the law
will not be touched.
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.

Note: Rule on double negative: uses the term “not


unconstitutional”; the court cannot declare a law
constitutional because it already enjoys a
presumption of constitutionality.
3. Symbolic – to educate the bench
and bar as to the controlling principles
and concepts on matters of grave
public importance for the guidance of
and restraint upon the future.
What is a moot and academic
case?
A moot and academic case is one that
ceases to present a justiciable
controversy by virtue of supervening
events, so that a declaration thereon
would be of no practical use or value.
Should courts decline jurisdiction over
moot and academic case?
GR: The courts should decline jurisdiction over such case
or dismiss it on ground of mootness.

XPN:
1. There is a grave violation of the Constitution;
2. The exceptional character of the situation and the
paramount public interest involved;
3. When 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.
What are the determinants of the
principle of transcendental importance?
1. The character of the funds or other assets
involved in the case;

2. The presence of a clear case of disregard of a


constitutional or statutory prohibition by the
public respondent agency or instrumentality of
the government; and

3. The lack of any other party with more direct


and specific interest in raising the questions
being raised.
What is the extent of power of judicial
review in impeachment proceedings?
The power of judicial review includes the power
of review over justiciable issues in impeachment
proceedings.
What are the requisites before a law can be
declared partially unconstitutional?
1. The legislature must be willing to retain valid
portion (separability clause); and

2. The valid portion can stand independently as


law.