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AUGUST 7, 2018 – Mortejo, Jennifer P. be valid.

So that if there’s a prior question still pending on the


proclamation of a person, he is not yet deemed to be a member
6. ELECTORAL TRIBUNAL of the House concerned. Therefore, the issue may still be
entertained by the COMELEC until there’s a final resolution of the
A. COMPOSITION case. In this case of Reyes, the issue on disqualification was raised
before the Supreme Court and was decided accordingly. The
There shall be what we refer to as, legislative component and the petitioner failed to ask for any remedy thereafter thinking that
judicial component – There are 3 members of the Supreme Court because she had won in the elections, she would now be a
and 6 members of the House to which the electoral tribunal Member. But because of issue of the validity of the proclamation,
belongs. having been previously disqualified in a final decision, the
Supreme Court said there was no valid proclamation. She
B. NATURE OF FUNCTION remained to be a non-Member of the House of Representatives.
Of course it helps that the protestant in the case was the son of a
It is exercising quasi-judicial function and by this reason, it is sitting Justice in the Supreme Court, Justice Presbitero Velasco.
supposed to be the sole judge of all contests relating to elections,
returns and qualifications of the respective branch. It has been C. INDEPENDENCE OF THE ELECTORAL TRIBUNALS
ruled in several cases that members of the Electoral Tribunal
representing the legislative component sit as Judges with security As mentioned earlier, because they sit as Judges, they enjoy such
of tenure. They cannot be removed by their party just because of security of tenure.
party disloyalty arising from a decision which is contrary to their
party list. When they sit in the Electoral Tribunal, they will be D. POWERS
nominated by the party because of proportional representation. E. JUDICIAL REVIEW OF DECISIONS OF ELECTORAL TRIBUNALS
They will act solely based on the facts and merits of the case.
For so long as the Electoral Tribunal has decided the case within
They can be removed by the party for some legal grounds, even the limited jurisdiction it has, its decisions are considered final.
party disloyalty, except when the cause of the party disloyalty is But under judicial review, if there is grave abuse of discretion, it
that voting against a party’s interest in the elections contest shall be subject to review by the Supreme Court.
pending before it.
7. COMMISSION ON APPOINTMENTS
What is included in the “elections, returns and qualifications”? Composition
BARBERS VS COMELEC - 24 members
460 SCRA 569 (2009) - the 25th member is the Senate President who shall
preside but will not vote unless there is a tie.
Election referred to the conduct of the polls, including the listing - The 12-12 from each House shall be filled out based on
of voters, the holding of the electoral campaign, and the casting proportional representation.
and counting of the votes;
Basically, the Commission on Appointments performs executive
Returns to the canvass of the returns and the proclamation of the function although they are composed of members of Congress.
winners, including questions concerning the composition of the They are in relation to the check and balance principle on the
board of canvassers and the authenticity of the election returns; appointing powers of the President.
and
They have power to reject or confirm appointments made by the
Qualifications to matters that could be raised in a quo warranto President under the 1st paragraph of Section 16 of Article VII:
proceeding against the proclaimed winner, such as his disloyalty
or ineligibility or the inadequacy of his certificate of candidacy. Section 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the
Is there a pre-proclamation controversy cases for national executive departments, ambassadors, other public ministers and
positions? consuls, or officers of the armed forces from the rank of colonel
There’s none. or naval captain, and other officers whose appointments are
vested in him in this Constitution. He shall also appoint all other
Is Congress a local or national position? officers of the Government whose appointments are not
(Wala naghatag ug answer si Sir  ) otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the
JURISDICTION appointment of other officers lower in rank in the President
The Jurisdiction of Electoral Tribunal invariably before the case of alone, in the courts, or in the heads of departments, agencies,
Reyes vs COMELEC (2013), which was asked in the 2014 Bar commissions, or boards.
Exams, only requires a proclamation, an oath and the term of
office must have started or commenced (meaning, starting at The list is exclusive. Congress cannot, by legislation, provide for an
noon of June 30 following the day of elections). So there’s a additional qualification for CA confirmation unless it falls under
timeline determined any of these issues while it may have been the 1st sentence of Section 16:
initially filed or instituted with the COMELEC, as soon as that 1. Heads of Executive Departments
person becomes a Member of the House, jurisdiction will now lie 2. Ambassadors
with the Electoral Tribunal. 3. Other public ministers and consuls
4. Officers of the armed forces from the rank of colonel or naval
In 2013, in the case of Reyes vs COMELEC, the Supreme Court captain, and
changed it by qualifying proclamation. Proclamation must have to
5. Other officers whose appointments are vested in him in this The distinction is important for purposes of the efficacy of the
Constitution appointment:

Parts of that list of those appointed by him are the party-list a. An appointment without requiring CA confirmation, which is
representatives for the first 3 terms under the 1987 Constitution, made while Congress is in session, is effective upon acceptance.
which has long been abandoned because of the Party List System And even if there is any action taken thereafter, provided it has
Election Act. been accepted, it is considered effective.

Other matters with respect to Commission on Appointments b. In an ad interim appointments, strictly, it is still subject to CA
(CA) are: confirmation later. While it is valid for the moment because
1. Extent of Powers Congress is not functioning and CA is not able to function too, the
CA can eventually act on it and reject the nomination made.
Can it reject any appointment made by the President?
Of course it can. 8. POWERS OF CONGRESS

Conversely, can it approve also or confirm all appointments A. GENERAL PLENARY POWERS
made by the President because they are of the same party - Subject to the substantive limitations which are all provided in
affiliation? Asking the question, is the decision of the CA to the Bill of Rights and some other specific provisions in the
confirm or reject an appointment subject to judicial review? Constitution
If by rejection or rejecting an appointment or nomination made
by the Executive, there’s hardly any issue on grave abuse because (1) Substantive Limitations
it has the power to reject. (a) Express Substantive Limitations
- Article III (Bill of Rights)
But what about if it is to confirm? If there is no other legal or - Article VI, Sections 25 and 28
constitutional provision violated in confirming a nomination - Article XIV, Section 4(3)
made, there could be no issue on judicial review. But if there is a - Article VI, Section 29
legal or constitutional qualification required and yet despite its
want or lack thereof, the CA confirm the nomination, it may be a (b) Implied Substantive Limitations
grave abuse of discretion and be subjected to judicial review. 1. Prohibition against delegation of legislative power
What is being exercised by the Congress is already a
If you remember there was a recent issue on citizenship of delegated power and so the Congress cannot delegate it further,
Perfecto Yasay and eventually, his nomination was rejected. unless allowed, subject to the usual tests of an allowable
Assuming there was an issue on whether or not he is still a Filipino delegation which are the following:
citizen yet his nomination was confirmed, then it could be a. Completeness of Statute
subjected to judicial review because that could be in grave abuse b. Sufficiency of Standards
of discretion. But if the qualification is based on what your
President has said, “the best and the brightest” even if it’s Mocha The sufficiency of standards test is being used more now because
Uson (LOL), that cannot be subjected to judicial review because it Congress has not been enacting too many laws completely on its
is very subjective. It is a subjective non-legal standard unlike age, terms once it has been delegated.
residence or citizenship, these are legal standards.
Most of the examples on the Doctrine of non-delegation would
If a nomination is by-passed, there is no limitation on the be in the legislative power. But we all know that this doctrine
executive making another nomination because to by-pass a applies to all of the other powers of Congress. Executive Power
nomination is simply not acting on it with Congress taking a recess cannot be delegated unless allowed and the allowance is under
to adjourn. The CA only performs or is going to exercise its the Doctrine of Qualified Political Agency. Judicial Power cannot
functions when Congress is in session. Therefore, if the Congress also be delegated although by system, it is exercised by one
is not in session, the CA is also not functioning. If the nomination Supreme Court and such other lower courts as may be provided
submitted to the CA is not acted and Congress is in recess or for by law. In which case, there is a “delegation” to the lowest
adjourned, the nomination is deemed by-passed. courts subject to final review of the Supreme Court in appropriate
cases.
The President can make a re-nomination up to whenever he likes
but when the CA rejects a nomination, that’s the end for that Subordinate legislation
person for that specific position. He can be nominated in other It is the rule-making power when Congress exercises legislative
positions because his rejection by the CA was for a particular power and delegates the formulation of rules and regulations to
position as he has been nominated for. He was not rejected for implement the provisions of existing law. The limitations are the
being himself but only for his appointment or nomination for that following:
position. a. The rules and regulations must not be contrary to the
Constitution;
2. Concept of Ad Interim or Recess Appointments b. Must not be contrary to the law; and
c. Must be within the terms of the delegated authority.
This is technically referring to appointments requiring CA
confirmation made while Congress is not in session or when the The sufficiency of standards test is normally used. It is not
CA is not functioning. If the appointment does not need CA required however that all the standards are set in one law. It is
confirmation because it does not fall in the first sentence of allowable that several laws on the same subject matter will
Section 16 of Article VII and made during recess, it is not an ad provide for several standards and which all standards taken
interim appointment.
altogether, may be considered as sufficient to provide for such delegated because unless there is a law allowing such exercise of
rules and regulations. legislative powers seemingly reserved to the People under Section
1, it could not be exercised and so Congress had to enact.
There are two types of rule-making power which are delegated
to administrative agencies: Republic Act 6735 provides for rule on initiative. Actually, it
1. Supplementary rule-making power should be rules on initiative or referendum because the term
- To fill up the details of the law or its enforcement initiative suggests that the intent or the motive to legislate comes
from the proponents which would be the people. The
2. Contingency rule-making power referendum, on the other hand, is supposed to be coming from
- The power of the delegate to ascertain facts to bring the State subjecting a question or proposition to the electorate
in to law its actual operation. It is not simply filling it up but whether or not they will accept a proposed legislation. The people
there’s a discretion granted to ascertain certain facts to make the can exercise initiative; they can only respond to a referendum. If
law operative. there is no proposition submitted by the State to them, they will
never be able to exercise referendum.
Exceptions to Non-Delegation Doctrine:
a. Delegation to the President RA 6735 provides for certain requirements on representation or
This refers to flexible tariff clause under Section 28 (2) percentages on who can initiate but largely, it will tell us that
and emergency powers provision under Section 23 (2) of Article initiative must come from the electorate and there’s a
VI: requirement of 10% of the total number of the registered voters,
of which every legislative district is represented by at least three
SECTION 23. (1) The Congress, by a vote of two-thirds of both per centum (3%) of the registered voters thereof if it is a national
Houses in joint session assembled, voting separately, shall have statute. If it’s a local legislation, there’s a minimum requirement
the sole power to declare the existence of a state of war. for the number of electorate to initiate them from barangay,
municipal, city, province, including the ARMM.
(2) In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and What the law requires is for the petitioners to make the proposal
subject to such restrictions as it may prescribe, to exercise powers in full and this will be submitted to the electorate for their
necessary and proper to carry out a declared national policy. confirmation by signatures. The COMELEC is supposed to task to
Unless sooner withdrawn by resolution of the Congress, such verify the authenticity of the signatures including the compliance
powers shall cease upon the next adjournment thereof. of the required number of electorates, whether by number of by
percentage. After which, there will be an electoral exercise to be
SECTION 28. (1) xxxxxx made in order for the rest to accept its propositions.
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as 2. Prohibition against passage of irrepealable laws
it may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework (2) Procedural Limitation
of the national development program of the Government. We follow the 3-3-3 rule; 3 readings on 3 separate days and there
(3) xxxxx shall be printed copies submitted at least 3 days before the 3rd
xxx and final reading.

b. Delegation to the People We understand that each bill will be processed in each House
following that rule. 1st and 2nd readings are the most important
Article VI, SECTION 32. The Congress shall, as early as possible, because it is where the discussions are made. The 3rd reading is
provide for a system of initiative and referendum, and the reserved for voting, there shall be no other discussions allowed.
exceptions therefrom, whereby the people can directly propose Under our journal entry rule, the votes of the 3rd and final reading
and enact laws or approve or reject any act or law or part thereof are supposed to be entered in the journal. Once it is approved in
passed by the Congress or local legislative body after the one House, it will be forwarded to the other House for their own
registration of a petition therefor signed by at least ten per deliberations. It shall pass the same rule on 3-3-3 in the other
centum of the total number of registered voters, of which every House, after which if so approved, the bill will be certified and it is
legislative district must be represented by at least three per referred to as an enrolled bill which will be presented to the
centum of the registered voters thereof. President under the process of bill enrollment for his action
whether to approve, to veto or to sit on it.
There is a question in relation to Section 1 of Article VI, whether
that is delegated authority, because it states that: The other issue there is, if the bill is certified as urgent, can the
Houses of Congress do away with the procedural limitations?
SECTION 1. The legislative power shall be vested in the Congress of 3 readings cannot be dispensed with. It can be dispensed on
the Philippines which shall consist of a Senate and a House of separate days. The 1st reading can be done now, discussed
Representatives, except to the extent reserved to the people by thereafter and vote thereafter. It need not be on separate days.
the provision on initiative and referendum. Should printed copies be had before the 3rd and final reading?
There’s one case I remember which says that the printing is also
There is a reservation for the People when they exercise initiative exempt. I did not include it in your outline because while the
and referendum because the origin of legislative power would be intent of the ruling is correct, it cannot be dispensed with because
the sovereign people. However, under the last section of Article VI what is there to submit to the other House for consideration. It
(as cited above), there is a need for Congress to legislate for the need not be submitted at least 3 days before but there must have
People to exercise initiative and referendum or power to legislate to be printed copies of the final draft as approved by the House in
under initiative and referendum. In which case, it is deemed ti be order for it to be forwarded to the other House for its
consideration. The certification of urgency of the bill does not If you remember the PDAF cases, part of its discussion was
therefore exempt the need to have a printed copy of the final inward-turning legislation; for while Congress has approved the
draft of the bill. General Appropriations Act (GAA) providing for a lump-sum
amount or PDAF, the individual members of Congress were given
B. QUESTION HOUR specific authority under that law or provision in the GAA to
C. LEGISLATIVE INVESTIGATIONS determine which project shall be funded and for how much each
project shall be funded. Once the law is passed by Congress, its
These are part of what is referred to as Oversight Functions of implementation should be in the Executive, it should not be made
Congress. There are 3 oversight functions of Congress: dependent upon prior approval of Congress. That is an example of
1. Scrutiny inward-turning legislation that is not allowed.
- This is usually where question hour would fall and the
usual form of legislative scrutiny is the budget hearings; when Now as opposed to inquiry in aid of legislation or legislative
members of the Heads of the different offices of the Government investigation, any person can be subjected to the subpoena
are asked or “investigated” during budget hearings. Heads of the powers of the Congress for any inquiry in aid of legislation. What
departments and offices must have to explain to Congress why the Constitution provides however is that all persons appearing
they are asking for such an appropriation for that year. And it’s an thereby, their rights shall have to be respected. And most of the
opportune time for members of Congress to determine what that rights that are applicable and claimable are the bill of rights,
office is doing and what that office is intending to do with its especially the privilege against self-incrimination under Section 17
requested appropriation. That applies to ALL offices and officers of Article III.
in Government.
Are they entitled to right to counsel?
For question hour however, it has limited application because it Since it is not an “investigation” for a criminal case, strictly under
refers only to Heads of the Executive Department. The Section 12 of Article III, the right to counsel is not a claimable
Constitution requires that there must have to be prior consent of right. Although you have seen this in a lot if inquiries in aid of
the President and there must have to be written questions legislation or legislative inquiries, persons appearing there or
submitted to the Heads before they appear so that they will be required to appear have brought their counsels. But if you also
ready with their answers. Although interpellations are not notice, their counsels are not allowed to talk because while they
required to be submitted earlier in written form for obvious are made to fill up the attendance sheet, they are not recognized.
reasons. They are not invited there as such counsel. Of course, they are
allowed to confirm with their clients who are invited in the
2. Legislative Inquiry inquiries in aid of legislation.
- Inquiry in aid of legislation
It is also required that the rules affecting the conduct of these
3. Legislative Supervision inquiries in aid of legislation must have to be published. Each
- This usually comes in the form of provisions in numbered Congress must have to publish its own Rules of
legislation providing for oversight committee. Do not confuse Procedure, including proceedings in inquiries in aid of legislation.
legislative supervision with inward-turning legislation.
The other cases there, the case of Senate vs Ermita and Gudani vs
In the case of ABAKADA vs Purisima, the concept of legislative Senga, highlights the distinction between question hour and
supervision strictly speaking, which is allowable, refers to the inquiries in aid of legislation respecting members of the Executive
oversight function of Congress to make sure that the provisions of family and of the military (in the case of Gudani).
the law are implemented properly.
Can members of the Executive family be called instead in
A good example of an oversight committee, in relation to the inquiries in aid of legislation and not in question hour?
legislative supervision powers of Congress, is the Absentee Voters YES. They may be Heads of Executive Departments but if they are
Act. If you try to read the law, there’s a provision there called not in relation strictly to the operations and administration
establishing the oversight committee composed of members of of their respective departments, they can be called in inquiries in
both Houses. Every time there is an election, members of aid of legislation.
Congress will convene in an oversight committee and they will
travel all over the world where there are Filipino voters to ensure What about military officers? Can the President prevent military
there is proper voting of Filipinos abroad who are still entitled to officers and the listed personnel from testifying in inquiries in
vote. That is the extent of legislative supervision that is allowed as aid of legislation?
opposed to inward-turning legislation. YES. Not because they enjoy some kind of exception to the rule. It
is because of the concept of discipline in the military. As
Inward-turning legislation refers to the delegation of a power by Commander-in-Chief, the President has control over them. And if
Congress which will entitle eventually Congress the power to the Commander-in-Chief would order them not to appear, they
decide whether the exercise of delegated authority is allowable or must have to comply. And the Congress cannot skirt the matter of
not. For example if it is rule-making power, Congress cannot discipline that the Commander-in-Chief imposes upon the
delegate the rule-making power to an administrative body or subordinate officials and the rest of the command.
officer but withholds its efficacy upon its prior approval. Once the
power is delegated, it is supposed to be complete and full. The In Neri vs Senate, the Supreme Court emphasizes the concept of
rules and regulations to be made by the delegate can be executive privilege. For while members of the Executive family
questioned only before the Courts, not with the prior approval of may be investigated either in question or inquiries in aid of
the Congress. legislation and they cannot refuse simply because they are
members of the Executive family, they can refuse to answer a
question which would fall for a violation of the executive privilege
rule.

We understand that the executive privilege comes in two forms:


the Presidential communications privilege and the deliberative
process privilege. The latter privilege refers to generally the
privilege granted to all government offices and decisions. While
the former refers to the process by which a Presidential decision
has been arrived at. Only the Presidential communications
privilege is covered by the executive privilege rule.

Based on that old case of US vs Nixon, executive privilege is not


found in our Constitution in express provision. But it has been
considered to be existing because there are certain matters which
its publication is kept in order to allow a free discussion of ideas
to come up with a decision. The freedom to right of information
of the public will only refer to the final outcome or decision. But
how the decision is arrived at, it may be covered by some
privilege.

An example would be for the Supreme Court, the deliberations in


collegiate courts. What we are made aware of would be the
conclusions reached by the Court because we are furnished a
copy of the decision, the decision is published. But how the Court
deliberated on it as required by our Constitution, we don’t know
unless the Justice would tell on how the SC voted on it or
discussed it before the Court even has come out with the final
decision. But that is more of an exception. So, there are matters
by which there is a need to protect the secrecy of certain
deliberations, except that the public is entitled to the result of the
deliberations.

The Presidential communications privilege follows the proximity


rule. Every person who has been in proximity to the President in
coming up with the decision would be covered by the privilege.
That’s why in this case of Neri, even if he is not the President and
he is not technically a Cabinet Secretary of the Government, but
because he is the NEDA Head, he is in the cluster, the questions
asked of him were considered to be covered by the executive
privilege. He is not supposed to be compelled to answer all
questions.

There was a recent case which involves the hazing of Castillo of


UST, the decision came out early August last week. In an En Banc
decision, the Supreme Court modified the power of the Senate or
of Congress to cite a person in contempt for refusing to comply
with the subpoena issued in inquiry in aid of legislation.

In the old cases of Arnault vs Balagtas and Arnault vs Nazareno,


the Supreme Court said that the person cited for contumacious
behavior can be cited in contempt and placed in detention until
he complies with the order of the investigating body. In the case
of Castillo, the head of the fraternity who was one of those
charged raised the issue of his detention, the Supreme Court
modified the power to detain by saying that the power to detain
will have to be consistent with the continuation of the probe or
investigation. It’s a different play if the investigation has been
terminated; there is no more reason to detain further any person
who refused to testify in that investigation because the
investigation has been concluded. That person must have to be
released from detention.