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HAND OUT No.

1 - INTRODUCTION
Constitutional Law I - Atty. Renato Ma. S. Callanta, Jr.

GENERAL INTRODUCTION
Political Law defined

That branch of public law which deals with the organization and operation of the
government organs of the state and defines the relations of the state with the inhabitants
of its territory.1

Macariola vs. Asuncion, AM No. 133-J, May 31, 1982 (114 SCRA 77)

HELD: Political law has been defined as that branch of public law which deals with the organization and
operation of the governmental organs of the State and defines the relations of the state with the inhabitants of its
territory.2

Scope of Political Law - The entire field of political law may be subdivided into (a) the
law of public administration, (b) constitutional law, (c) administrative law, and (d) the
law of public corporations.3

These four subdivisions may be briefly described for the time being, as follows: The first
deals with the organization and management of the different branches of the government;
the second, with the guaranties of the constitution to individual rights and the limitations
on governmental action; the third, with the exercise of executive power in the making of
rules and the decision of questions affecting private rights; and the last, with
governmental agencies for local government or for other special purposes.4

LAW SUBJECTS COVERED UNDER THE BAR EXAM ON POLITICAL LAW:


1) Constitutional Law I – Structures & Power of the Government
2) Constitutional Law II – Bill of Rights & Citizenship
3) Administrative Law
4) Law on Public Officers
5) Law on Public Corporations
6) Election Law
7) Public International Law

• 1st exam to be taken in the Bar Exams

THE NATURE OF THE CONSTITUTION


A. DEFINITION

Constitution Defined:

• According to Cooley: That body of rules and maxims in accordance with which the
powers of sovereignty are habitually exercised.

Constitution of the Philippines; Defined:

• According to Justice Malcolm: The written instrument enacted by direct action of


the people by which the fundamental powers of the government are established,
limited and defined, and by which those powers are distributed among the several
departments for their safe and useful exercise for the benefit of the body politic.

• A Constitution is a system of fundamental laws for the governance and administration of a nation. It is
supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has
been defined as the fundamental and paramount law of the nation. It prescribes the permanent

1
Sinco, Philippine Political Law 1, 11th ed., 1962
2
Citing the case of People vs. Perfecto, 43 Phil 887 (1922)
3
Sinco, Philippine Political Law 1, 11th ed., 1962
4
Ibid
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 2 of 22

framework of a system of government, assigns to the different departments their respective powers and
duties, and establishes certain fixed principles on which government is founded. The fundamental
conception in other words is that it is a supreme law to which all other laws must conform and in
accordance with which all private rights must be determined and all public authority administered.5

B. PURPOSE AND NATURE

Purpose of the Constitution:

• To prescribe the permanent framework of a system of government, to assign to the several departments
their respective powers and duties, and to establish certain fixed principles on which government is
founded.

• What is the Purpose/Nature of the Philippine Constitution?

1) As the supreme law of the land, it establishes the government and prescribes the permanent
framework of a system of that government so established;
2) Assigns the several departments of the government their respective powers and duties;
3) Establishes certain principles of which the government is to exercise its powers;
4) Balances the powers of government with the civil liberties of its citizens, and
5) Promotes the common good of the people.6

C. SUPREMACY OF THE CONSTITUTION

• The Constitution is the basic and paramount law of which all other laws must conform and to which all
persons, including the highest officials of the land, must defer. No acts shall be valid, however noble its
intentions, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow
to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power
debase its rectitude.

• Under the DOCTRINE OF CONSTITUTIONAL SUPREMACY, if a law or contract violates any norm of
the constitution that law or contract whether promulgated by the legislative or by the executive branch or
entered into by private persons for private purposes is null and void and without any force and effect.
Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract. Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent
GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle in
constitutional law that all laws and contracts must conform with the fundamental law of the land. Those
which violate the Constitution lose their reason for being.7

• The Constitution is the fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights must be determined and all public authority
administered. Laws that do not conform to the Constitution shall be stricken down for being
unconstitutional.8

Macalintal vs. COMELEC, GR No. 157013, July 10, 2003 – PRESUMPTION OF CONSTITUTIONALITY
OF A LAW

HELD: Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC,9 the Court said:

. . . An act of the legislature, approved by the executive, is presumed to be


within constitutional limitations. The responsibility of upholding the Constitution
rests not on the courts alone but on the legislature as well. The question of the
validity of every statute is first determined by the legislative department of the
government itself.

Thus, presumption of constitutionality of a law must be overcome convincingly:

5
Manila Prince v. GSIS, GR No. 122156, February 3, 1997 (267 SCRA 408)
6
Philippine Governance and Constitution (2002), Mauro R. Munoz and Delilah Gonzalez-Munoz
7
Manila Prince v. GSIS, GR No. 122156, February 3, 1997 (267 SCRA 408)
8
Macalintal vs. COMELEC, GR No. 157013, July 10, 2003 citing the Manila Prince case
9
L-47771, 11 March 1978, 82 SCRA 30, 55 citing People vs. Vera, 65 Phil. 56, 95 (1937)
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 3 of 22

. . . To declare a law unconstitutional, the repugnancy of that law to the


Constitution must be clear and unequivocal, for even if a law is aimed at the
attainment of some public good, no infringement of constitutional rights is
allowed. To strike down a law there must be a clear showing that what the
fundamental law condemns or prohibits, the statute allows it to be done.10

D. CLASSIFICATION

I. Written vs. Unwritten

1. Written – one whose precepts are embodied in one document or set of


documents.

2. Unwritten – consists of rules which have not been integrated into a single,
concrete form but are scattered in various sources, such as statutes of
fundamental character, judicial decisions, commentaries of publicists,
customs and traditions, and certain common law principles.

II. Conventional vs. Cumulative

1. Conventional – an enacted constitution, formally “struck off” at a definite


time and place following a conscious or deliberate effort taken by a
constituent body or ruler.

2. Cumulative – result of political evolution, “not inaugurated at any specific


time but changing by accretion rather than by any systematic method.”

III. Rigid vs. Flexible

1. Rigid – one that can be amended only by a formal and usually difficult
process.

2. Flexible – one that can be changed by ordinary legislation.

• The Constitution of the Philippines is written, conventional and rigid

E. ESSENTIAL QUALITIES OF THE WRITTEN CONSTITUTION

1. Broad
• Not only because it provides for the organization of the entire government
and covers all persons and things within the territory of the State but more
so because it is supposed to embody the past, to reflect the present and to
anticipate the future. The constitution must be comprehensive enough to
provide for every contingency.

2. Brief
• It must be brief and confine itself to basic principles to be implemented with
legislative details more adjustable to change and easier to amend.

3. Definite
• Ambiguity in its provisions will result in confusion and divisiveness among the
people, and perhaps even physical conflict.
• Exception: Found only in those cases where the rules are deliberately worded
in a vague manner, like the due process clause, to make them more

10
Salas vs. Hon. Jarencio, 150-B Phil. 670, 690 (1972) citing Morfe vs. Mutuc, G.R. No. L-20387, 31 January 1968, 22
SCRA 424.
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 4 of 22

malleable to judicial interpretation in the light of new conditions and


circumstances.

F. ESSENTIAL PARTS OF THE WRITTEN CONSTITUTION

1. Constitution of Liberty
• Series of prescriptions setting forth the fundamental civil and political rights
of the citizens and imposing limitations on the powers of government as a
means of securing the enjoyment of these rights.
• ARTICLES II, III, IV, V, and, XII.

2. Constitution of Government
• Series of provisions outlining the organization of the government,
enumerating its powers, laying down certain rules relative to its
administration and defining the electorate.
• ARTICLES VI to XI

3. Constitution of Sovereignty
• Consists of provisions pointing out the mode or procedure in accordance with
which formal changes in the fundamental law may be brought about.
• ARTICLES XVII

G. PERMANENCE OF THE CONSTITUTION

Permanence of the constitution:


• One advantage of the written, conventional and rigid constitution is its permanence,
or its capacity to resist capricious or whimsical change dictated not by legitimate
needs but only by passing fancies, temporary passions or occasional infatuations of
the people with ideas or personalities.

• Such a constitution is not likely to be easily tampered with to suit political


expediency, personal ambitions or ill-advised agitation for change.

Disadvantage:
• Where the written constitution is unable to adjust to the need for change justified
by new conditions and circumstances. The difficulty itself of the amending process
may be responsible for the delay in effecting the need and thus cause irreparable
injury to the public interest.

H. SELF EXECUTING AND NON-SELF EXECUTING PROVISIONS

• A constitutional provision is self-executing if it fixes the nature and extent of the right conferred and
the liability imposed such that they can be determined by an examination and construction of its terms,
and there is no language indicating that the subject is referred to the legislature for action. On the other
hand, if the provision needs a supplementary or enabling legislation, it is merely a declaration of policy
and principle which is not self-executing.11

• Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely establish
an outline of government providing for the different departments of the governmental machinery and
securing certain fundamental and inalienable rights of citizens. A provision which lays down a general
principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of
the right conferred and the liability imposed are fixed by the constitution itself, so that they can be

11
Manila Prince v. GSIS, GR No. 122156, February 3, 1997 (267 SCRA 408)
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 5 of 22

determined by an examination and construction of its terms, and there is no language indicating that the
subject is referred to the legislature for action.12

• In case of doubt, the Constitution should be considered self-executing rather than non-self-
executing . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the needed implementing
statute.13

• Parenthetically, there have been several occasions in the past where Congress provided supplementary or
enabling legislation for constitutional provisions that are not self-executing. To name just some: the
Comprehensive Agrarian Reform Law of 1988,14 the Indigenous Peoples Rights Act of 1997,15 the Local
Government Code of 1991,16 the Anti-Graft and Corrupt Practices Act,17 the Speedy Trial Act of 1998,18
the Overseas Absentee Voting Act of 2003, 19 the Party-List System Act, 20 the Paternity Leave Act of
1996,21 and the Solo Parents' Welfare Act of 2000.22

I. INTERPRETATION

Macalintal vs. COMELEC, GR No. 157013, July 10, 2003

HELD: It is a basic rule in constitutional construction that the Constitution should be construed as a whole. In
Chiongbian vs. De Leon,23 the Court held that a constitutional provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.
Constitutional provisions are mandatory in character unless, either by express statement or by necessary
implication, a different intention is manifest.24 The intent of the Constitution may be drawn primarily from the
language of the document itself. Should it be ambiguous, the Court may consider the intent of its framers
through their debates in the constitutional convention.25

1. It should be interpreted in such a way as to give effect to the intent of the


framers.
• Intent is discoverable either in the document itself or through the use of
extrinsic aids, such as records of the constitutional convention.

Q: Whether the constitution should be interpreted in the light of conditions obtaining at the time of its
adoption or according to changes inevitably transpiring in the history of the nation?

A: The constitution must change with the changing times lest it impede the progress of the people with
antiquated rules grown ineffective in a modern age.

2. It should be interpreted as self-executing.


• Self-executing – no need to enact law in order for it to become operative.
EXAMPLE: Article III

12
Ibid
13
Id
14
Section 21, Article II
15
Section 22, Article II
16
Section 25, Article II
17
Section 25, Article II
18
Section 16, Article III
19
Section 2, Article V
20
Section 5, Article VI
21
Section 3, article XIII
22
Ibid
23
82 Phil. 771, 775 (1949).
24
Citing the Separate opinion of Vitug, J. in Romualdez-Marcos vs. COMELEC, supra, p. 387, citing Marcelino vs. Cruz, Jr.,
L-42428, 18 March 1983, 121 SCRA 51.
25
Citing Luz Farms vs. Secretary of the Department of Agrarian Reform, G.R. No. 86889, 4 December 1990, 192 SCRA 51,
58-59.
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 6 of 22

• Non self executing – remains dormant unless it is activated by legislative


implementation.
Examples:
1. Article II, Section 4
2. Article IV, Section 3

3. It should be mandatory.
• Otherwise, the fundamental law would have no more force and prestige than
a set of directions which the government and the people would be free to
disregard.

4. It should be prospective in application


• Rights already acquired or vested might be unduly disturbed or withdrawn
even in the absence of an unmistakable intention to place them within the
scope of the constitution.

AMENDMENT OR REVISION OF THE CONSTITUTION

Art. XVII, 1987 Constitution

SECTION 1. Any amendment to, or revision of, this Constitution may be


proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or


(2) A constitutional convention.

SECTION 2. Amendments to this Constitution may likewise be directly


proposed by the people through initiative upon a petition of at least twelve
per centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor
oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this
right. (*remains to be a non-self executing provision)

SECTION 3. The Congress may, by a vote of two-thirds of all its Members,


call a constitutional convention, or by a majority vote of all its Members,
submit to the electorate the question of calling such a convention.

SECTION 4. Any amendment to, or revision of, this Constitution under


Section 1 hereof shall be valid when ratified by a majority of the votes cast in
a plebiscite which shall be held not earlier than sixty days nor later than
ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a


majority of the votes cast in a plebiscite which shall be held not earlier than
sixty days nor later than ninety days after the certification by the Commission
on Elections of the sufficiency of the petition.

AMENDMENT - Isolated or Piecemeal change.

• An amendment envisages an alteration of one or a few specific and separable provisions. The guiding
original intention of an amendment is to improve specific parts or to add new provisions deemed
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Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
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necessary to meet new conditions or to suppress specific portions that may have become obsolete or that
are judged to be dangerous.26

REVISION - Revamp or Rewriting of the entire instrument.

• The guiding original intention and plan contemplates a re-examination of the entire document, or of
provisions of the document which have over-all implications for the entire document, to determine how
and to what extent they should be altered.27

AMENDMENT vs. REVISION:

 The distinction between amendment and revision was noted in the deliberations of the Constitutional
Commission, to wit:

The observation made in the famous or notorious Javellana doctrine, particularly the decision
rendered by Honorable Justice Makasiar, wherein he made the following distinction between
“amendment” and revision” of an existing constitution: “Revision” may involve a rewriting of the
whole Constitution. On the other hand, the act of amending a constitution envisages a change of
specific portions only. The intention of an act to amend is not the change of the entire
Constitution, but only the improvement of specific parts or the addition of provisions deemed
essential as a consequence of new conditions or the elimination of parts already considered
obsolete or unresponsive to the needs of time.28

Lambino vs. COMELEC, GR No. 174153, October 25, 2006

HELD: Revision broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances. There is also revision if the change
alters the substantial entirety of the constitution, as when the change affects substantial provisions
of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or
deletes without altering the basic principle involved. Revision generally affects several provisions of the
constitution, while amendment generally affects only the specific provision being amended.

In California where the initiative clause allows amendments but not revisions to the constitution just like in our
Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The
quantitative test asks whether the proposed change is “so extensive in its provisions as to change directly the
‘substantial entirety’ of the constitution by the deletion or alteration of numerous existing provisions.” The court
examines only the number of provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main
inquiry is whether the change will “accomplish such far reaching changes in the nature of our basic governmental
plan as to amount to a revision.” Whether there is an alteration in the structure of government is a proper
subject of inquiry. Thus, “a change in the nature of [the] basic governmental plan” includes “change in its
fundamental framework or the fundamental powers of its Branches.” A change in the nature of the basic
governmental plan also includes changes that “jeopardize the traditional form of government and the system of
check and balances.”

J. Procedure

1. Proposal

Modes of Proposing Amendments or Revision


Proposal Ratification
Thru Congress Thru Con. Con. Thru People’s initiative By Majority of votes cast
By a ¾ vote of All its By a 2/3 vote of all By petition of at least in a Plebiscite.
members members of Congress 12% of the total no. of
registered voters Which The plebiscite shall be
at least 3% of Each held not earlier than 60
legislative district Must days nor later than 90
be represented days after the approval of
such amendment /

26
Bernas, The 1987 Constitution, A Commentary, page 1294
27
Bernas, The 1987 Constitution, A Commentary, page 1294
28
As cited by Bernas, The 1987 Constitution, A Commentary, pp. 1294 – 1295
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 8 of 22

revision, or after the


Here it will not Act as a By a majority vote of all certification by the
legislative Body but as a its members if calling is COMELEC of the
Constituent Body submitted to the people sufficiency of the petition
as the case may be.

• The proposal is generally made either directly by the Congress or by a Constitutional Convention.29

• Methods in making proposal:

1. Direct Legislative Action

 Where what is intended is a mere amendment or change of particular provisions only, the
proposal is better made by direct legislative action. In this case the vote of at least three-fourths
of all the members of the Congress shall be needed.

 Q: Must Congress assemble in joint session before it can propose amendment or call a
constitutional convention?

A: Since nothing is said about a joint session, it is submitted that each House may separately
formulate amendments by a vote of three-fourths of all its members, and then pass it in the
other house for a similar process. Disagreements can be settled through a conference
committee.

Alternatively, however, it is also submitted that Congress may decide to come together in joint
session and vote separately on proposed amendments and revisions. Since the Constitution is
silent about the method and since the amendatory process has been committed to Congress,
under the “political questions” doctrine Congress should be free to choose whichever method it
prefers.

It is also submitted, however, that what is essential, is that both House vote separately. This is
because the power to propose amendments is given not a unicameral body but a bicameral body.
The meaning of a constitutional command can also be drawn from the known governmental
structure set up by the Constitution.30

2. Constitutional Convention

 This method is used if what is envisioned is the overhaul of the entire Constitution. It is
advisable to entrust the task to a Constitutional Convention because it will have more time,
opportunity and presumably also the needed expertise to discharge it.

 The call for a constitutional convention may be made by a vote of two-thirds of all the members
of the Congress.
o If they cannot make up their mind, the question of whether or not to call the constitutional
convention shall be thrown by them to the people themselves, by at least a majority vote.

3. People’s Initiative
 Section 2, Article XVII.

* Applicable only for Amendments and not to Revision of the constitution

DOCTRINE OF PROPER SUBMISSION

• The entire constitution must be submitted for ratification at one plebiscite only. Submission for
ratification of piecemeal amendments disallowed

Occena vs. COMELEC, GR No. L-56350, April 2, 1981 (104 SCRA 1)

Who determines what kind of method should be used in making a proposal to change the current constitution?
29
Article XVII, Sec. 1
30
Bernas, The 1987 Constitution, A Commentary, page 1298
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Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 9 of 22

Doctrine: Whatever the nature of the change contemplated, the choice of the method of proposal is
discretionary upon the legislature.

Imbong vs. COMELEC, GR No. L-32432, September 11, 1970 (35 SCRA 28)

HELD: Congress, when acting as a Constituent Assembly pursuant to Art. XV of the Constitution (now Art. XVII),
has full and plenary authority to propose Constitutional amendments or to call a convention for the purpose, by a
three-fourths vote of each House in joint session assembled but voting separately.

The grant to Congress as a Constituent Assembly of such plenary authority to call a constitutional convention
includes, by virtue of the doctrine of necessary implication, all other powers essential to the effective exercise of
the principal power granted, such as the power to fix the qualifications, number, apportionment, and
compensation of the delegates as well as appropriation of funds to meet the expenses for the election of
delegates and for the operation of the Constitutional Convention itself, as well as all other implementing details
indispensable to a fruitful convention.

While the authority to call a constitutional convention is vested by the present Constitution solely and exclusively
in Congress acting as a Constituent Assembly, the power to enact the implementing details, which are now
contained in Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively pertain to Congress acting
as a Constituent Assembly. Such implementing details are matters within the competence of Congress in the
exercise of its comprehensive legislative power, which power encompasses all matters not expressly or by
necessary implication withdrawn or removed by the Constitution from the ambit of legislative action. And as long
as such statutory details do not clash with any specific provision of the Constitution, they are valid.

Consequently, when Congress, acting as a Constituent Assembly, omits to provide for such implementing details
after calling a constitutional convention, Congress, acting as a legislative body, can enact the necessary
implementing legislation to fill in the gaps, which authority is expressly recognized in Sec. 8 of Res. No. 2 as
amended by Res. No. 4.

The fact that a bill providing for such implementing details may be vetoed by the President is no argument
against conceding such power in Congress as a legislative body nor present any difficulty; for it is not
irremediable as Congress can override the Presidential veto or Congress can reconvene as a Constituent Assembly
and adopt a resolution prescribing the required implementing details.

Gonzales vs. COMELEC, GR No. L-28196, November 9, 1967 (21 SCRA 774)

DOCTRINES:

(1) Proposal of amendments is not a political but a justiciable question subject to judicial review. This
doctrine is reaffirmed in Sanidad v. COMELEC.

(2) The choice as to whether to propose amendments or to call a constitutional convention for that
purpose or to do both was a question of wisdom and not of authority and hence was a political
question not subject to review by the courts.

2. Position of the Constitutional Convention

1. Theory of Conventional Sovereignty

• Loomis vs. Jackson – Constitutional convention is supreme over the other departments of the
government because the powers it exercises are in the nature of sovereign powers.

2. Constitutional Convention is inferior to the other departments

• Wood’s Appeal – constitutional convention inferior to the other departments of the government
since it is merely a creation of the legislature.

3. As long as it exists and confines itself within the sphere of its jurisdiction, the Constitutional Convention
must be considered independent of and co-equal with the other departments of the government.
(Frantz vs. Autry)
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Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 10 of 22

Gonzales vs. COMELEC, GR No. L-28196, November 9, 1967 (21 SCRA 774)

HELD: As early as Angara vs. Electoral Commission, this Court — speaking through one of the leading members
of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel — declared
that "the judicial department is the only constitutional organ which can be called upon to determine
the proper allocation of power between the several departments and among the integral or
constitutional constituent units thereof."

It is true that in Mabanag vs. Lopez Vito, this Court, characterizing the issue submitted thereto as a political one,
declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution — which was being submitted to the people for ratification — satisfied
the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened,
however, by Suanes vs. Chief Accountant of the Senate, Avelino vs. Cuenco, Tañada vs. Cuenco, and Macias vs.
Commission on Elections. In the first, we held that the officers and employees of the Senate Electoral Tribunal
are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second,
this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we
nullified the election, by Senators belonging to the party having the largest number of votes in said chamber,
purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators
belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth,
we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House
of Representatives, upon the ground that the apportionment had not been made as nearly as may be possible
according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4)
cases, that the issues therein raised were political questions the determination of which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general
grant of legislative powers to Congress. It is part of the inherent powers of the people — as the repository of
sovereignty in a republican state, such as ours — to make, and, hence, to amend their own Fundamental Law.
Congress may propose amendments to the Constitution merely because the same explicitly grants such power.
Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not
as members of Congress but as component elements of a constituent assembly. When acting as such, the
members of Congress derive their authority from the Constitution, unlike the people, when performing the same
function, for their authority does not emanate from the Constitution — they are the very source of all powers of
government, including the Constitution itself.

Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress
derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on
whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature
of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme
Court the power to declare a treaty unconstitutional, despite the eminently political character of the treaty-
making power.

In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly — violates the
Constitution, is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that
this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter should be deemed
modified accordingly. The Members of the Court are unanimous on this point.

Tolentino vs. COMELEC, GR No. L-34150, October 16, 1971 (41 SCRA 702)

FACTS: The case is a petition for prohibition to restrain respondent Commission on Elections "from undertaking
to hold a plebiscite on November 8, 1971," at which the proposed constitutional amendment "reducing the voting
age" in Section 1 of Article V of the Constitution of the Philippines to eighteen years "shall be, submitted" for
ratification by the people pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and the
subsequent implementing resolutions, by declaring said resolutions to be without the force and effect of law for
being violative of the Constitution of the Philippines. The Constitutional Convention of 1971 came into being by
virtue of two resolutions of the Congress of the Philippines approved in its capacity as a constituent assembly
convened for the purpose of calling a convention to propose amendments to the Constitution namely, Resolutions
2 and 4 of the joint sessions of Congress held on March 16, 1967 and June 17, 1969 respectively. The delegates
to the said Convention were all elected under and by virtue of said resolutions and the implementing legislation
thereof, Republic Act 6132.
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HELD: There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter, those of a
constitutional convention called for the purpose of proposing amendments to the Constitution, which concededly
is at par with the former.

True it is that once convened, this Convention became endowed with extraordinary powers generally beyond the
control of any department of the existing government, but the compass of such powers can be co-extensive only
with the purpose for which the convention was called and as it may propose cannot have any effect as part of the
Constitution until the same are duly ratified by the people, it necessarily follows that the acts of convention, its
officers and members are not immune from attack on constitutional grounds. The present Constitution is in full
force and effect in its entirety and in everyone of its parts, the existence of the Convention notwithstanding, and
operates even within the walls of that assembly. While it is indubitable that in its internal operation and the
performance of its task to propose amendments to the Constitution it is not subject to any degree of restraint or
control by any other authority than itself, it is equally beyond cavil that neither the Convention nor any of its
officers or members can rightfully deprive any person of life, liberty or property without due process of law, deny
to anyone in this country the equal protection of the laws or the freedom of speech and of the press in disregard
of the Bill of Rights of the existing Constitution. Nor, for that matter, can such Convention validly pass any
resolution providing for the taking of private property without just compensation or for the imposition or exacting
of any tax, import or assessment, or declare war or call the Congress to a special session, suspend the privilege
of the writ of habeas corpus, pardon a convict or render judgment in a controversy between private individuals or
between such individuals and the state, in violation of the distribution of powers in the Constitution.

It being manifest that there are powers which the Convention may not and cannot validly assert, much less
exercise, in the light of the existing Constitution, the simple question arises, should an act of the Convention be
assailed by a citizen as being among those not granted to or inherent in it, according to the existing Constitution,
who can decide whether such a contention is correct or not? It is of the very essence of the rule of law that
somehow somewhere the power and duty to resolve such a grave constitutional question must be lodged on
some authority, or we would have to confess that the integrated system of government established by our
founding fathers contains a wide vacuum no intelligent man could ignore, which is naturally unworthy of their
learning, experience and craftmanship in constitution-making.

Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present case. It
goes without saying that We do this not because the Court is superior to the Convention or that the Convention is
subject to the control of the Court, but simply because both the Convention and the Court are subject to the
Constitution and the rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is within
the power, as it is the solemn duty of the Court, under the existing Constitution to resolve the issues in which
petitioner, respondents and intervenors have joined in this case.

PEOPLE’S INITIATIVE

Santiago vs. COMELEC, GR No. 127325, March 19, 1997 (270 SCRA 106)

HELD: Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably
failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then
invalid…xxx

It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise
of the right of the people to directly propose amendments to the Constitution through the system of initiative. It
does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article
IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by
the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is
authorized and which satisfies the "completeness" and the "sufficient standard" tests.

Doctrine: The Constitutional provision on people’s initiative is not self-executing and RA 6735 provided only for a
local initiative and not the national initiative required for proposing constitutional changes.

Lambino vs. COMELEC, GR No. 174153, October 25, 2006

FACTS: The Lambino group commenced gathering signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that
will ratify their initiative petition under Section 5(b) and (c) and Section 7 of Republic Act No. 6735 or the
Initiative and Referendum Act (“RA 6735”).
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Atty. Rene Callanta, Jr.
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The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least
twelve per centum (12%) of all registered voters, with each legislative district represented by at least three per
centum (3%) of its registered voters. The Lambino Group also claimed that COMELEC election registrars had
verified the signatures of the 6.3 million individuals.

The Lambino Group’s initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI
(Legislative Department) and Sections 1-4 of Article VII (Executive Department) and by adding Article XVIII
entitled “Transitory Provisions.” These proposed changes will shift the present Bicameral-Presidential system to a
Unicameral-Parliamentary form of government.

The COMELEC denied said petition invoking the ruling in Santiago vs. COMELEC.

HELD: The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people’s initiative. Thus, there is even no need to revisit Santiago vs. Comelec, as the present
petition warrants dismissal based alone on the Lambino Group’s glaring failure to comply with the basic
requirements of the Constitution.

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people’s
initiative to propose amendments to the Constitution. This section states:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the


people through initiative upon a petition of at least twelve per centum of the total number
of registered voters of which every legislative district must be represented by at least three per
centum of the registered voters therein. x x x x (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an amendment “directly
proposed by the people through initiative upon a petition,” thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready
to be shown to the people when they are asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.

MR. RODRIGO: No, because before they sign there is already a draft shown to
them and they are asked whether or not they want to propose this constitutional
amendment.

MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature. (Emphasis supplied)

Clearly, the framers of the Constitution intended that the “draft of the proposed constitutional
amendment” should be “ready and shown” to the people “before” they sign such proposal. The framers
plainly stated that “before they sign there is already a draft shown to them.” The framers also
“envisioned” that the people should sign on the proposal itself because the proponents must “prepare that
proposal and pass it around for signature.”

The essence of amendments “directly proposed by the people through initiative upon a petition” is that
the entire proposal on its face is a petition by the people. This means two essential elements must be
present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on
their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first shown to the
people who express their assent by signing such complete proposal in a petition. Thus, an amendment is
“directly proposed by the people through initiative upon a petition” only if the people sign on a
petition that contains the full text of the proposed amendments.
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Atty. Rene Callanta, Jr.
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The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If
so attached, the petition must state the fact of such attachment. This is an assurance that every one of the
several millions of signatories to the petition had seen the full text of the proposed amendments before
signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of the millions
of signatories had seen the full text of the proposed amendments before signing.

Moreover, “an initiative signer must be informed at the time of signing of the nature and effect of that which is
proposed” and failure to do so is “deceptive and misleading” which renders the initiative void.

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of
the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the
framers intended to adopt the relevant American jurisprudence on people’s initiative. In particular, the
deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people
must first see the full text of the proposed amendments before they sign, and that the people must
sign on a petition containing such full text.

REVISION THRU INITIATIVE

A people’s initiative to change the Constitution applies only to an amendment of the Constitution and not to its
revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the
Constitution.

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through
Congress upon three-fourths vote of all its Members. The second mode is through a constitutional
convention. The third mode is through a people’s initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to “[A]ny amendment to, or revision
of, this Constitution.” In contrast, Section 2 of Article XVII, referring to the third mode, applies only to
“[A]mendments to this Constitution.” This distinction was intentional as shown by the following deliberations
of the Constitutional Commission:

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant
to the mandate given to us last night, we submitted this afternoon a complete Committee Report
No. 7 which embodies the proposed provision governing the matter of initiative. This is now
covered by Section 2 of the complete committee report. With the permission of the Members,
may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least
ten percent of the registered voters.

This completes the blanks appearing in the original Committee Report No. 7. This
proposal was suggested on the theory that this matter of initiative, which came about because of
the extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that this
system of initiative should be limited to amendments to the Constitution and should
not extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision. x x x x

xxxx

MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a


separate section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision
which contemplates a total overhaul of the Constitution. That was the sense that was
conveyed by the Committee.
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Atty. Rene Callanta, Jr.
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MS. AQUINO: In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?

MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.

MS. AQUINO: I thank the sponsor; and thank you, Madam President.

xxxx

MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on


line 1 refers to "amendments." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered
by Section 1. So insofar as initiative is concerned, it can only relate to "amendments"
not "revision."

MR. MAAMBONG: Thank you. (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction
between “amendment” and “revision” of the Constitution. The framers intended, and wrote, that only Congress
or a constitutional convention may propose revisions to the Constitution. The framers intended, and wrote,
that a people’s initiative may propose only amendments to the Constitution. Where the intent and language of
the Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people
cannot propose revisions even as they are empowered to propose amendments.

Under both the quantitative and qualitative tests, the Lambino Group’s initiative is a revision and not merely an
amendment. Quantitatively, the Lambino Group’s proposed changes overhaul two articles - Article VI on the
Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire
Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from
presidential to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-equal
branches of government in the present Constitution are reduced into two. This alters the separation of
powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-
Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical
change in the structure of government.

The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers
and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress
alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution.

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-
Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of
Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group’s
proposed changes, it is readily apparent that the changes will radically alter the framework of government
as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional
Commission, writes:

An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplates a re-examination of the entire document, or of provisions of the document
which have over-all implications for the entire document, to determine how and to what extent
they should be altered. Thus, for instance a switch from the presidential system to a
parliamentary system would be a revision because of its over-all impact on the entire
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constitutional structure. So would a switch from a bicameral system to a unicameral


system be because of its effect on other important provisions of the
Constitution. (Emphasis supplied)

3. Ratification (Art. XVII, sec. 4, 1987 Constitution)

• The requirement for ratification thus involves the people themselves in the sovereign act of drafting or
altering the fundamental law. In the case of a mere statute, it suffices that it is enacted by their chosen
representatives pursuant to their mandate. But where it is the constitution that is being framed or
amended, it is imperative and proper that approval come directly from the people themselves.

• Proposals to amend the Constitution must be ratified within a reasonable time after they are made
because they are intended to answer present needs or correct current problems.

Gonzales vs. COMELEC, GR No. L-28196, November 9, 1967 (21 SCRA 774)

DOCTRINE: There is nothing to indicate that the election herein referred to is a special, not a general election.
The circumstance that the previous amendment to the Constitution had been submitted to the people for
ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then
obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections.

Occena vs. COMELEC, GR No. L-56350, April 2, 1981 (95 SCRA 755)

HELD: The Supreme Court sustained the simultaneous holding in 1980 of the local elections and the plebiscite
on the proposal to restore the retirement age of judges to seventy years.

K. Judicial Review of Amendments

• The questions of the validity of the adoption of amendments to the Constitution are regarded now as
subject to judicial review.

Tanada vs. Cuenco, GR No. L-10520, February 28, 1957 (100 Phil 1101)

DOCTRINE: The courts can inquire into whether or not the prescribed procedure for amendment has been
observed.

Sanidad vs. COMELEC, GR No. L-44646, October 12, 1976 (73 SCRA 333)

HELD: The amending process both as to proposal and ratification, raises a judicial question. This is
especially true in cases where the power of the Presidency to initiate the amending process by proposals of
amendments, a function normally exercised by the legislature, is seriously doubted. Under the terms of the 1973
Constitution, the power to propose amendments to the Constitution resides in the interim National Assembly
during the period of transition (Sec. 15, Transitory Provisions). After that period, and the regular National
Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the
regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 Constitution). The normal course has not been
followed. Rather than calling the interim National Assembly to constitute itself into a constituent assembly, the
incumbent President undertook the proposal of amendments and submitted the proposed amendments thru
Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity of
the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a
contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to
have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is
plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2) Article X of the new
Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law shall be
heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared
unconstitutional without the concurrence of at least ten Members. . . .." The Supreme Court has the last word in
the construction not only of treaties and statutes, but also of the Constitution itself. The amending, like all other
powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme
Court is vested with that authority to determine whether that power has been discharged within its limits.
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PHILIPPINE - FORM OF GOVERNMENT

Art. II, Sec. 1. The Philippines is a democratic and republican State.


Sovereignty resides in the people and all government authority
emanates from them.

• Under this principle, the Philippines is a democratic state that is, a government for, of, and by the people.
But it is not a pure democracy. Thus, while it is true that the people are the possessors of sovereign
power, it is equally the case that they cannot exercise the powers of government directly, but only
through the medium of their duly elected representatives.

• The word “democratic” was added to “republican” in Article II, Section 1 of the Constitution as a
“pardonable redundancy” to highlight the importance of the people’s role in government.— Of all the
organic laws of our country, the 1987 Constitution holds most sacrosanct the people’s role in governance.
As a first principle of government, the 1987 Constitution declares in Article II, Section 1, Declaration of
Principles and State Policies, that the Philippines is not only a republican but also a democratic state. The
word “democratic” was added to “republican” as a “pardonable redundancy” to highlight the importance
of the people’s role in government, as evinced by the exchanges in the 1986 Constitutional Commission.31

• The Government of the Philippines, also known as the Philippine Government is the national
government of the unitary state of the Republic of the Philippines. It is a presidential, representative, and
democratic republic where the President of the Philippines is both the head of state and the head of
government within a pluriform multi-party system.32

• GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES refers to the corporate governmental


entity through which the functions of government are exercised throughout the Philippines, including,
save as the contrary appears from the context, the various arms through which political authority is made
effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal
or barangay subdivisions or other forms of local government.33

• The Philippines is a republic with a presidential form of government wherein power is equally divided
among its three branches: Executive, Legislative, and Judicial Departments.

• One basic corollary in a presidential system of government is the principle of separation of powers
wherein legislation belongs to Congress, execution to the Executive, and settlement of legal controversies
to the Judiciary.

• The Legislative branch is authorized to make laws, alter, and repeal them through the power vested in
the Philippine Congress. This institution is divided into the Senate and the House of Representatives.

• The Executive branch is composed of the President and the Vice President who are elected by direct
popular vote and serve a term of six years. The Constitution grants the President authority to appoint his
Cabinet. These departments form a large portion of the country’s bureaucracy.

• The Judicial branch holds the power to settle controversies involving rights that are legally demandable
and enforceable. This branch determines whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part and instrumentality of the government. It is made
up of a Supreme Court and lower courts.

• The Constitution expressly grants the Supreme Court the power of Judicial Review as the power to
declare a treaty, international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance or regulation unconstitutional.

SEPARATION OF POWERS

• The Doctrine of Separation of Powers entails: first, the division of the powers of the government into
three, which are legislative, executive, and judicial; and second, the distribution of these powers to the
three major branches of the government, which are the Legislative Department, Executive Department,
and the Judicial Department. Basically, it means that the Legislative Department is generally limited to

31
AKBAYAN vs. Aquino, 558 SCRA 468, July 16, 2008
32
Wikepedia
33
Adinistrative Code of 1987, Sec. 2(1)
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the enactment of the law and not to implementation or interpretation of the same; the Executive
Department is generally limited to the implementation of the law and not to the enactment or
interpretation of the same; and the Judicial Department is generally limited to the interpretation and
application of laws in specific cases and not to the making or implementation of the same.

• Purpose of the Doctrine - Prevention of Monopoly of Power. Separation of powers is said to be an


attribute of republicanism, in that, among other reasons, it seeks to prevent monopoly or concentration
of power to one person or group of persons, and thereby forestalls dictatorship or despotism. Sovereignty
resides in the people, and it should remain that way. Government officials, who are the representatives of
the people, must exercise the powers of their office in the interest of the public. While representational
exercise of power brings out the essence of republicanism, too much concentration of power rips it apart,
as was experienced some administrations.

Belgica vs. Executive Secretary, GR No. 208566, November 19, 2013 – PDAF Case

HELD: The principle of separation of powers refers to the constitutional demarcation of the three fundamental
powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral Commission,34 it means
that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government." To the legislative branch of government, through
Congress, belongs the power to make laws; to the executive branch of government, through the President,
belongs the power to enforce laws; and to the judicial branch of government, through the Court, belongs the
power to interpret laws. Because the three great powers have been, by constitutional design, ordained in this
respect, "each department of the government has exclusive cognizance of matters within its jurisdiction, and is
supreme within its own sphere." Thus, "the legislature has no authority to execute or construe the law, the
executive has no authority to make or construe the law, and the judiciary has no power to make or execute the
law." The principle of separation of powers and its concepts of autonomy and independence stem from the notion
that the powers of government must be divided to avoid concentration of these powers in any one branch; the
division, it is hoped, would avoid any single branch from lording its power over the other branches or the
citizenry. To achieve this purpose, the divided power must be wielded by co-equal branches of government that
are equally capable of independent action in exercising their respective mandates. Lack of independence would
result in the inability of one branch of government to check the arbitrary or self-interest assertions of another or
others.

Broadly speaking, there is a violation of the separation of powers principle when one branch of government
unduly encroaches on the domain of another. US Supreme Court decisions instruct that the principle of separation
of powers may be violated in two (2) ways: firstly, "one branch may interfere impermissibly with the
other’s performance of its constitutionally assigned function"; and "alternatively, the doctrine may be
violated when one branch assumes a function that more properly is entrusted to another." In other
words, there is a violation of the principle when there is impermissible (a) interference with and/or (b)
assumption of another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both
constitutionally assigned and properly entrusted to the Executive branch of government. In Guingona, Jr. v. Hon.
Carague,35, the Court explained that the phase of budget execution "covers the various operational aspects of
budgeting" and accordingly includes "the evaluation of work and financial plans for individual activities," the
"regulation and release of funds" as well as all "other related activities" that comprise the budget execution cycle.
This is rooted in the principle that the allocation of power in the three principal branches of government is a grant
of all powers inherent in them. 36 Thus, unless the Constitution provides otherwise, the Executive department
should exclusively exercise all roles and prerogatives which go into the implementation of the national budget as
provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members, should not cross
over the field of implementing the national budget since, as earlier stated, the same is properly the domain of the
Executive. Again, in Guingona, Jr., the Court stated that "Congress enters the picture when it deliberates or acts
on the budget proposals of the President. Thereafter, Congress, "in the exercise of its own judgment and
wisdom, formulates an appropriation act precisely following the process established by the Constitution, which
specifies that no money may be paid from the Treasury except in accordance with an appropriation made by
law." Upon approval and passage of the GAA, Congress‘ law - making role necessarily comes to an end and from

34
Angara vs. Electoral Commission, 63 Phil. 139, 156 (1936).
35
273 Phil. 443 (1991).
36
Biraogo vs. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 148.
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there the Executive‘s role of implementing the national budget begins. So as not to blur the constitutional
boundaries between them, Congress must "not concern itself with details for implementation by the Executive."

The foregoing cardinal postulates were definitively enunciated in Abakada Guro Party List vs. Purisima37 where
the Court held that "from the moment the law becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional." It must be clarified, however, that since the restriction only
pertains to "any role in the implementation or enforcement of the law," Congress may still exercise its oversight
function which is a mechanism of checks and balances that the Constitution itself allows. But it must be made
clear that Congress‘ role must be confined to mere oversight. Any post-enactment-measure allowing legislator
participation beyond oversight is bereft of any constitutional basis and hence, tantamount to impermissible
interference and/or assumption of executive functions. As the Court ruled in Abakada:

Any post-enactment congressional measure x x x should be limited to scrutiny and investigation.


In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed
by the Constitution. (Emphasis supplied)

X x x

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other
provisions of law which similarly allow legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the separation
of powers principle and thus unconstitutional.

CHECKS AND BALANCES

The ends of government are better achieved if the system of checks and balances will be observed.

Under the system of checks and balances, one department is given certain powers by which it may definitely
restrain the others from exceeding constitutional authority. It may object or resist any encroachment upon its
authority, or it may question, if necessary any act or acts which unlawfully interferes with its sphere of jurisdiction
and authority.38

The following are illustrations where there are checks and balances:

1. The lawmaking power of the Congress is checked by the President through its veto power, which in turn
maybe overturn by the legislature
2. the Congress may refuse to give its concurrence to an amnesty proclaimed by the President and the
Senate to a treaty he has concluded
3. the President may nullify a conviction in a criminal case by pardoning the offender
4. the Congress may limit the jurisdiction of the Supreme Court and that of inferior courts and even abolish
the latter tribunals
5. the Judiciary in general has the power to declare invalid an act done by the Congress, the President and
his subordinates, or the Constitutional Commissions.

Angara vs. Electoral Commission, GR No. L-45081, July 15, 1936

HELD: The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the

37
G.R. No. 166715, August 14, 2008, 562 SCRA 251.
38
Suarez, 2005
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 19 of 22

fact that the three powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings of the various departments of the government. For
example, the Chief Executive under our Constitution is so far made a check on the legislative power that this
assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become
a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the
case may be, of the National Assembly. The President has also the right to convene the Assembly in special
session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in
the sense that its consent through its Commission on Appointments is necessary in the appointments of certain
officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties.
Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define
their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial
department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the
judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of
the Constitution.

The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution
had not provided for a mechanism by which to direct the course of government along constitutional channels, for
then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the limitation and restrictions embodied in our
Constitution are real as they should be in any living constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent
of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way.
And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is
the power of judicial review under the Constitution.

Belgica vs. Executive Secretary, GR No. 208566, November 19, 2013 – PDAF Case

HELD: The fact that the three great powers of government are intended to be kept separate and distinct does
not mean that they are absolutely unrestrained and independent of each other. The Constitution has also
provided for an elaborate system of checks and balances to secure coordination in the workings of the various
departments of the government.39

A prime example of a constitutional check and balance would be the President’s power to veto an item written
into an appropriation, revenue or tariff bill submitted to him by Congress for approval through a process known
as "bill presentment." The President‘s item-veto power is found in Section 27(2), Article VI of the 1987
Constitution which reads as follows:

Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his power of
item-veto, forms part of the "single, finely wrought and exhaustively considered, procedures" for law-passage as
specified under the Constitution. 40 As stated in Abakada, the final step in the law-making process is the
"submission of the bill to the President for approval. Once approved, it takes effect as law after the required
publication."

DELEGATION OF POWERS

Belgica vs. Executive Secretary, GR No. 208566, November 19, 2013 – PDAF Case

39
Angara vs. Electoral Commission, 63 Phil. 139, 158 (1936).
40
ABAKADA Guro Party List vs. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251.
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 20 of 22

HELD: As an adjunct to the separation of powers principle, legislative power shall be exclusively exercised by the
body to which the Constitution has conferred the same. In particular, Section 1, Article VI of the 1987
Constitution states that such power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative
and referendum. Based on this provision, it is clear that only Congress, acting as a bicameral body, and the
people, through the process of initiative and referendum, may constitutionally wield legislative power and no
other. This premise embodies the principle of non-delegability of legislative power, and the only recognized
exceptions thereto would be: (a) delegated legislative power to local governments which, by immemorial
practice, are allowed to legislate on purely local matters; and (b) constitutionally-grafted exceptions such as the
authority of the President to, by law, exercise powers necessary and proper to carry out a declared national policy
in times of war or other national emergency, or fix within specified limits, and subject to such limitations and
restrictions as Congress may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts within the framework of the national development program of the Government.

Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-making authority
to implementing agencies for the limited purpose of either filling up the details of the law for its enforcement
(supplementary rule-making) or ascertaining facts to bring the law into actual operation (contingent rule-making).
The conceptual treatment and limitations of delegated rule-making were explained in the case of People v.
Maceren41 as follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the non delegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated to promote the public interest
are necessary because of "the growing complexity of modern life, the multiplication of the
subjects of governmental regulations, and the increased difficulty of administering the law."
xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law as it has been enacted. The power
cannot be extended to amending or expanding the statutory requirements or to embrace matters
not covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases
supplied)

Undue Delegation to the President of Legislative Power – MALAMPAYA FUNDS

Belgica vs. Executive Secretary, GR No. 208566, November 19, 2013 – PDAF Case

ISSUE: Petitioners contend that Section 8 of PD 910 constitutes an undue delegation of legislative power since
the phrase "and for such other purposes as may be hereafter directed by the President" gives the President
"unbridled discretion to determine for what purpose the funds will be used." Respondents, on the other hand,
urged the Court to apply the principle of ejusdem generis to the same section and thus, construe the phrase "and
for such other purposes as may be hereafter directed by the President" to refer only to other purposes related "to
energy resource development and exploitation programs and projects of the government."

HELD: The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public purpose is sufficient for a
legal appropriation to exist, the appropriation law must contain adequate legislative guidelines if the same law
delegates rule-making authority to the Executive either for the purpose of (a) filling up the details of the law for
its enforcement, known as supplementary rule-making, or (b) ascertaining facts to bring the law into actual
operation, referred to as contingent rule-making. 42 There are two (2) fundamental tests to ensure that the
legislative guidelines for delegated rule-making are indeed adequate. The first test is called the "completeness
test." Case law states that a law is complete when it sets forth therein the policy to be executed, carried out, or
implemented by the delegate. On the other hand, the second test is called the "sufficient standard test."
Jurisprudence holds that a law lays down a sufficient standard when it provides adequate guidelines or limitations
in the law to map out the boundaries of the delegate‘s authority and prevent the delegation from running riot.43
To be sufficient, the standard must specify the limits of the delegate‘s authority, announce the legislative policy,
and identify the conditions under which it is to be implemented.

41
169 Phil 437 (1977)
42
ABAKADA Guro Party List vs. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251.
43
See Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Edition, pp.
686-687, citing Pelaez v. Auditor General, 15 SCRA 569, 576-577 (1965).
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 21 of 22

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes as may
be hereafter directed by the President" under Section 8 of PD 910 constitutes an undue delegation of legislative
power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President‘s
authority with respect to the purpose for which the Malampaya Funds may be used. As it reads, the said phrase
gives the President wide latitude to use the Malampaya Funds for any other purpose he may direct and, in effect,
allows him to unilaterally appropriate public funds beyond the purview of the law. That the subject phrase may be
confined only to "energy resource development and exploitation programs and projects of the government" under
the principle of ejusdem generis, meaning that the general word or phrase is to be construed to include – or be
restricted to – things akin to, resembling, or of the same kind or class as those specifically mentioned, is belied by
three (3) reasons: first, the phrase "energy resource development and exploitation programs and projects of the
government" states a singular and general class and hence, cannot be treated as a statutory reference of specific
things from which the general phrase "for such other purposes" may be limited; second, the said phrase also
exhausts the class it represents, namely energy development programs of the government; and, third, the
Executive department has, in fact, used the Malampaya Funds for non-energy related purposes under the subject
phrase, thereby contradicting respondents‘ own position that it is limited only to "energy resource development
and exploitation programs and projects of the government." Thus, while Section 8 of PD 910 may have passed
the completeness test since the policy of energy development is clearly deducible from its text, the phrase "and
for such other purposes as may be hereafter directed by the President" under the same provision of law should
nonetheless be stricken down as unconstitutional as it lies independently unfettered by any sufficient standard of
the delegating law. This notwithstanding, it must be underscored that the rest of Section 8, insofar as it allows for
the use of the Malampaya Funds "to finance energy resource development and exploitation programs and
projects of the government," remains legally effective and subsisting. Truth be told, the declared
unconstitutionality of the aforementioned phrase is but an assurance that the Malampaya Funds would be used –
as it should be used – only in accordance with the avowed purpose and intention of PD 910.

Delegation of Powers of the Supreme Court to Congress - Jurisdiction

Tua vs. Mangrobang, G.R. No. 170701, January 22, 2014.

• Issuance of protection orders is in pursuance of the Court’s authority to settle justiciable controversies or
disputes involving rights that are enforceable and demandable before the courts of justice or the redress
of wrongs for violations of such rights.

HELD: The provision in R.A. 9262 allowing the issuance of protection orders is not an invalid delegation of
legislative power to the court and to barangay officials to issue protection orders. Section 2 of Article VIII of the
1987 Constitution provides that “the Congress shall have the power to define, prescribe, and apportion the
jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated
in Section 5 hereof.” Hence, the primary judge of the necessity, adequacy, wisdom, reasonableness and
expediency of any law is primarily the function of the legislature. The act of Congress entrusting us with the
issuance of protection orders is in pursuance of our authority to settle justiciable controversies or disputes
involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for
violations of such rights.

Delegation to Specialized Administrative Agencies:

BOCEA vs. Teves, GR No. 181704, December 6, 2011

HELD: The principle of separation of powers ordains that each of the three great branches of government has
exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated sphere. 44
Necessarily imbedded in this doctrine is the principle of non-delegation of powers, as expressed in the Latin
maxim potestas delegata non delegari potest, which means “what has been delegated, cannot be delegated.”
This doctrine is based on the ethical principle that such 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.45 However, this principle of non-delegation of powers admits of numerous exceptions,46 one of

44
Citing Angara v. Electoral Commission, 63 Phil. 139, 156 (1936).
45
Citing the case of Abakada Guro Party List v. Ermita, G.R. Nos. 168056, 168207, 168461, 168463 & 168730, September
1, 2005, 469 SCRA 1, 115-116.
46
The recognized exceptions to this principle are as follows:
(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
Hand Out No. 1
Political Law 1 (Constitutional Law 1)
Atty. Rene Callanta, Jr.
Page 22 of 22

which is the delegation of legislative power to various specialized administrative agencies like the Board in this
case.

The rationale for the aforementioned exception was clearly explained in our ruling in Gerochi v.
Department of Energy,47 to wit:

In the face of the increasing complexity of modern life, delegation of legislative power to
various specialized administrative agencies is allowed as an exception to this principle. Given the
volume and variety of interactions in today’s society, it is doubtful if the legislature can
promulgate laws that will deal adequately with and respond promptly to the minutiae of everyday
life. Hence, the need to delegate to administrative bodies — the principal agencies tasked to
execute laws in their specialized fields — the authority to promulgate rules and regulations to
implement a given statute and effectuate its policies. All that is required for the valid exercise of
this power of subordinate legislation is that the regulation be germane to the objects and
purposes of the law and that the regulation be not in contradiction to, but in conformity with, the
standards prescribed by the law. These requirements are denominated as the completeness test
and the sufficient standard test.

(4) Delegation to local governments; and


(5) Delegation to administrative bodies. Abakada Guro Party List v. Ermita, id. at 117; Santiago v. Comelec, 336 Phil.
848, 897-898 (1997), citing People v. Vera, 65 Phil. 56 (1937) and Isagani A. Cruz, PHILIPPINE POLITICAL LAW 87
(1996).
47
G.R. No. 159796, July 17, 2007, 527 SCRA 696.
HAND OUT No. 2 – NATURE OF THE CONSTITUTION
& THE PHILIPPINES AS A STATE
By: Atty. Rene Callanta, Jr.
Constitutional Law I, 1st Semester, SY 2014-2015
P.U.P. College of Law

THE PHILIPPINES AS A STATE


I. STATE DEFINED.

• A State is a politically organized sovereign community, independent of outside control, bound by ties of
nationhood, legally supreme within its territory, and acting through government functioning under a
regime of law.1

• A State is a community of persons, more or less numerous, permanently occupying a fixed territory and
possessed of an independent government organized for political ends to which the great body of
inhabitants render habitual obedience.2

THE ELEMENTS OF A STATE ARE THE FOLLOWING:

1) People refers simply to the inhabitants of the State.

2) Territory is the fixed portion of the surface of the earth inhabited by the people of the State.

3) Government is the agency or instrumentality through which the will of the State is formulated,
expressed and realized.

4) Sovereignty is the supreme and uncontrollable power inherent in a State by which that State is
governed.

II. COMPONENTS OF THE PHILIPPINE STATE

A. PEOPLE

• As a requisite for Statehood: The people comprising the state must be adequate enough for self
sufficiency and defence. Furthermore they must be of both sexes in order that they may perpetuate
themselves

1. Three meanings of the word "People"

The word "people" is used in at least three senses in the Constitution:

a. "People" as Inhabitants

Art. XIII, Section 1. The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common good.

Art. II, Section 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them.

Section 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature.

Art. III, Section 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, xxx

• The right of an individual to be secure in his person is guaranteed by the


Constitution. Under our Constitution, the same is declared a popular right of the

1
CIR v. Campos -Rueda, 42 SCRA 23 (1971)
2
Prof. Samilo Barlongay quoting Garner, Introduction to Political Law, 41.)
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 2 of 33

people and, of course, indisputably applies to both citizens and foreigners in this
country.3

b. People as Citizens

PREAMBLE - We, the sovereign Filipino people imploring the aid of Almighty God, in
order to build a just and humane society and establish a Government that shall
embody our ideals and aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our posterity the blessings of
independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality and peace, do ordain and promulgate this Constitution.

Art. II, Sec. 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.

Art. II, Sec. 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and, in the
fulfillment thereof, all "citizens" may be required to render personal military or civil
service.

Art. III, Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers
pertinent to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizens
subject to limitations provided by law.

c. People as Electors

Art. VII, Sec. 4. The President and Vice-President shall be elected by direct vote of
the people xxx.

Art. XVI, Sec. 2. The Congress may, by law, adopt a new name for the country, a
national anthem, or a national seal, which shall all be truly reflective and symbolic of
the ideals, history, and traditions of the people. Such law shall take effect only upon
its ratification by the people in a national referendum.

Art. XVIII, Sec. 25. After the expiration in 1991 of the Agreement between
Republic of the Philippines and United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when Congress requires,
ratified by a majority of the votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the other contracting party.

B. TERRITORY - The Archipelago Concept

Art. I. 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, and other
submarine areas. The waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimen-
sions, form part of the internal waters of the Philippines.

• In short, the Philippine territory consists of: (1) the Philippine archipelago, and
(2) all territories over which the Philippines has sovereignty or jurisdiction.

3
Qua Chee Gan vs. Deportation Board, 9 SCRA 27 (1963)
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 3 of 33

1. The Philippine Archipelago

What comprises the Philippine Archipelago as stated in Article 1 of the 1987 Constitution?4

1) All the waters within the limits set forth in the:


a) Treaty of Paris of December 10, 1898 (Cession of the Philippine Islands by Spain to the U.S.),
b) between Spain and U.S., The Treaty of Spain and U.S. at Washington, November 1, 1900 (Cagayan,
Sulu & Sibuto),
c) Treaty between U.S. and Great Britain, January 2, 1930 (Turtle and Mangsee Islands);

2) All the waters around, between and connecting the various islands of the Philippine Archipelago,
irrespective of their width or dimension, have always been considered as necessary appurtenances of the
land territory, forming part of the inland or internal waters of the Philippines;

3) All the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set
forth in the aforementioned treaties comprise the territorial sea of the Philippines.

4) The baselines from which the territorial sea of the Philippines is determined consist of straight lines
joining the appropriate points of the outermost islands of the archipelago (straight baseline method);

• The definition of the baselines of the territorial sea of the Philippine archipelago is without prejudice
to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in
North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

ARCHIPELAGIC DOCTRINE

• Outermost points of the archipelago shall be connected by straight baselines and all
islands and waters therein are regarded as one integrated unit

• The basic concept of an archipelago is that body of water studded with islands, or the islands
surrounded with water, is viewed as a unity of islands and waters together forming one unit. This is
in contrast to a continent which is a single mass of land.

• The main purpose of the archipelagic doctrine is to protect the territorial interests of an archipelago.
If we follow the old rule of international law, it is possible that between islands, e.g. Bohol and
Siquijor, due to the more than 24 mile distance between the 2 islands, there may be high seas.
Thus, foreign vessels may just enter anytime at will, posing danger to the security of the State.
According to the doctrine, even these bodies of water within the baseline, regardless of breadth, form
part of the archipelago and are thus considered as internal waters.

• The archipelagic doctrine has a two-fold purpose: (1) economic reasons;(2) national security.

• The archipelagic doctrine is the principle that it is an integrated unit; everything within it comprises the
archipelago.

• The Constitutional provisions embodying this doctrine are:

1. "archipelago, with all the island and waters embraced therein"

2. "the waters around, between, and connecting the islands of the archipelago, regardless of the breadth
and dimensions, form part of internal water"

Method of determining the baselines

1. RA No. 3046 (17 June 1961)

4
Public International Law, Isagani Cruz
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 4 of 33

• Determine appropriate points of the outermost Islands of the archipelago, then


connect them by means of a straight line until all islands are surrounded or enclosed
by the imaginary straight lines.

• "The baselines from which the territorial sea of the Philippines is determined consist
of straight lines joining appropriate points of the outermost islands of the
archipelago." (fifth whereas clause.)

2. RA No. 5446 (8 September 1968) - Sec. 2 of the Act provides that the definition of
the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice
to the delineation of the baselines of the territorial sea around the territory of Sabah,
situated in North Borneo, over which the Republic of the Philippines has acquired dominion
and sovereignty.

Uses of the baseline:

a. Basis for determining what comprises the internal water (all waters inside the baseline,
whether or not more than 12 miles from the shore).

b. Used to determine the 200 mile EEZ.

c. Basis for the Archipelagic Doctrine

• An archipelago is a body of water, studded with islands.

• Territorial sea means water outside the baseline extending up to 12 miles.

• Internal water refers to water within the baseline.

• Insular shelf means the land which is submerged under water which may extend
beyond 12 miles as long as it is not more than 300 ft. deep. It is also known as
intercontinental shelf.

2. Other territories over which the Philippines has sovereignty or jurisdiction

PD No. 1596 (11 June 1978)

• Claims the Kalayaan Group of Islands as part of Philippine territory on the basis of
historic rights and legal title.

• The claim was made "by reason of history, indispensable need, and effective
occupation and control established in accordance with international law. xxx"

3. The territorial sea, the sea bed, the subsoil, the insular shelves and other
submarine areas

4. Exclusive Economic Zone

• PD No. 1599 (11 June 1978). There is established an exclusive economic zone
extending "to a distance of two hundred (200) nautical miles beyond and from the
baselines from which the territorial sea is measured. Provided, That, where the
outer limits of the zone as thus determined overlap the exclusive economic zone of
an adjacent or neighboring state, the common boundaries shall be determined by
agreement with the state concerned or in accordance with pertinent generally
recognized principles or international law on delimitation." (Sec. 1 thereof.)
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 5 of 33

Other states shall enjoy in the exclusive economic zone freedoms with respect to
navigations and overflight, the laying of submarine cables and pipelines, and other
internationally lawful uses of the sea relating to navigation and communications. (Sec. 4
thereof.)

Purposes:

1. Sovereign rights to explore, exploit, conserve and manage the natural resources, living
or non-living, renewable or non-renewable of the seabed, subsoil, and superadjacent
waters.

• Economic exploitation and exploration of the resources of the zone such as the
production of energy from the water, currents and winds.

2. Exclusive rights and jurisdiction with repect to the establishment and utilization of
artificial islands, off-shore terminals, installations and structures; the preservation of
the marine environment, including the prevention and control of pollution and scientific
research.

3. Such other rights as are recognized by international law.

Other states are prohibited from using the Exclusive Economic Zone to:

1. Explore or exploit any resources;


2. Carry out any search, excavation or drilling operations;
3. Conduct any research;
4. Construct or operate any artificial island, off-shore terminal, installation, or other
structure;
5. Perform any activity which is contrary to, or in derogation of, the sovereign rights and
jurisdiction herein provided.

Other states are allowed to use the Exclusive Economic Zone for:
1. Navigation and over flight;
2. Laying down of submarine cable and pipelines;
3. Other lawful uses related to navigation and communication.

• In case of overlapping of EEZs, the common boundaries are to be detemined by (i)


agreement and (ii) international rules on delimitations.

UN Convention on the Law of the Sea (30 April 1982.)

The exclusive economic zone which shall not extend beyond 200 nautical miles from
baselines from which the breadth of the territorial sea is measured, is recognized in the
UNCLOS, of which the Philippines is a signatory. Its concept is that although it is not part
of the territory, exclusive economic benefit is reserved for the country.

C. GOVERNMENT

1. Government is that institution or aggregate of institutions by which an


independent society makes and carries out those rules of action which are necessary to
enable men to live in a social state or which are imposed upon the people forming that
society by those who possess the power or authority of prescribing them. Government is
the aggregate of authorities which rule a society. (US v. Dorr, 2 Phil 332, 339).
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 6 of 33

U.S. vs. Dorr, GR No. 1051, May 19, 1903 (2 Phil 332)

FACTS: The defendants were convicted upon a complaint charging them with the offence of writing, publishing,
and circulating a scurrilous libel against the Government of the United States and the Insular Government of the
Philippine Islands. The complaint is based upon Sec. 8 of Act No. 292 of the Commission which punishes any
person who shall "utter seditious words or speeches, write, publish, or circulate scurrilous libels against the U.S.
Government or the Insular Government of the Phil. Islands, or which tend to disturb or obstruct any lawful officer
in executing his office, or which tend to instigate others to cabal or meet together for unlawful purposes, or
which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the unlawful
authorities".

The alleged libel was published as an editorial in the issue of the "Manila Freedom". The article mentioned about
the "foolish work that the Civil Commission is doing all over the Islands" referring to the appointment by the latter
of natives which were referred to as "insurgents" and "rogues" to important Government positions.

ISSUE: Whether the publication constitutes an offence under Sec. 8 of ACT. No. 292

HELD: NO. The term "government" as employed in ACT No. 292 of the U.S. Philippine Commission is used in the
abstract sense of the existing political system as distinguished from the concrete organism of the Government.
The article in question contains no attack upon the governmental system of the U.S., and it is quite apparent
that, though grossly abusive as respects both the Commission as a body and some of its individual members, it
contains no attack upon the governmental system by which the authority of the U.S. is enforced in these islands.
The form of Government by a Civil Commission and a Civil Governor is not assailed. It is the character of the
men who are instructed with the administration of the government that the writer is seeking to bring into
disrepute.
Note on the case:

Administration means the aggregate of those persons in whose hands the reins of the
govt are for the time being entrusted.

A. Functions

The government performs two kinds of functions, to wit, the constituent and the
ministrant.

• Constituent functions constitute the very bonds of society and are therefore
compulsory.

• Ministrant functions are those undertaken to advance the general interests of


society, such as public works, public charity, and regulation of trade and
industry.

Fontanilla vs. Maliaman, GR Nos. L-55963 & 61045, February 27, 1991 (194 SCRA 486)

HELD: It may not be amiss to state at this point that the functions of government have been classified into
governmental or constituent and proprietary or ministrant. The former involves the exercise of sovereignty and
considered as compulsory; the latter connotes merely the exercise of proprietary functions and thus considered
as optional.

• To our SC, however, the distinction between constituent and ministrant functions is not relevant in
our jurisdiction. In PVTA v. CIR, 65 SCRA 416, it reiterated the ruling in ACCFA v. Federation of
Labor Unions, 30 SCRA 649, that such distinction has been blurred because of the repudiation of
the laissez faire policy in the Constitution.

PVTA vs. CIR, GR No. L-32052, July 25, 1975 (65 SCRA 416)

HELD: "The growing complexities of modern society, however, have rendered this traditional classification of the
functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private
enterprise and initiative and which the government was called upon to enter optionally, and only 'because it was
better equipped to administer for the public welfare than is any private individual or group of individuals,'
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 7 of 33

continue to lose their well-defined boundaries and to be absorbed within activities that the government must
undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost
everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course
this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration
of principle concerning the promotion of social justice." Thus was laid to rest the doctrine in Bacani v. National
Coconut Corporation (100 Phil. 468), based on the Wilsonian classification of the tasks incumbent on government
into constituent and ministrant in accordance with the laissez faire principle. That concept, then dominant in
economics, was carried into the governmental sphere, as noted in a textbook on political science, the first edition
of which was published in 1898, its author being the then Professor, later American President, Woodrow Wilson.
He took pains to emphasize that what was categorized by him as constituent functions had its basis in a
recognition of what was demanded by the "strictest [concept of] laissez faire, [as they] are indeed the very bonds
of society." The other functions he would minimize as ministrant or optional.

It is a matter of law that in the Philippines, the laissez faire principle hardly commanded the authoritative position
which at one time it held in the United States. As early as 1919, Justice Malcolm in Rubi v. Provincial Board (39
Phil. 660), could affirm: "The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of
economic and political theory, are of the past. The modern period has shown a widespread belief in the amplest
possible demonstration of government activity." The 1935 Constitution, as was indicated earlier, continued that
approach. As noted in Edu v. Ericta (35 SCRA 481): "What is more, to erase any doubts, the Constitutional
Convention saw to it that the concept of laissez-faire was rejected. It entrusted to our government the
responsibility of coping with social and economic problems with the commensurate power of control over
economic affairs. Thereby it could live up to its commitment to promote the general welfare through state
action." Nor did the opinion in Edu stop there: "To repeat, our Constitution which took effect in 1935 erased
whatever doubts there might be on that score. Its philosophy is a repudiation of laissez-faire.

B. Doctrine of Parens Patriae

• One of the important tasks of the government is to act for the State as parens patriae, or guardian of the
rights of the people.

• This prerogative of parens patriae is inherent in the supreme power every State, whether that power is
lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are
sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of
their liberties.

• Blacks Law definition:


1) The state regarded as a sovereign: the state in its capacity as provider of protection to those unable to
care for themselves;
2) A doctrine by which a government has standing to prosecute a lawsuit in behalf of a citizen especially on
behalf of someone who is under legal disability to prosecute the suit. The State ordinarily has no standing
to sue in behalf of its citizens, unless a separate, sovereign interest will be served by the suit.

• Latin for "father of his country," the term for the doctrine that the government is the ultimate guardian of all
people under a disability, especially children, whose care is only "entrusted" to their parents.5

C. De Jure and De Facto Governments

A de jure government has rightful title but no power or control, either because this has been withdrawn from it or
because it has not yet actually entered into the exercise thereof.

A de facto government, on the other hand, is a government of fact, that is, it actually exercises power or control
but without legal title.

The three kinds of de facto government are as follows:


(1) The government that gets possession and control of, or usurps, by force or by the voice of the majority, the
rightful legal government and maintains itself against the will of the latter.
(2) That established as an independent government by the inhabitants of a country who rise in insurrection
against the parent state.
(3) That which is established and maintained by military forces who invade and occupy a territory of the enemy
in the course of war, and which is denominated as a govt of paramount force, like the Second Republic of
the Philippines established by the Japanese belligerent.

5
Dictionary.Law.com
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 8 of 33

The characteristics of this third kind of de facto government are:


(a) Its existence is maintained by active military power within the territories, and against the rightful authority of
an established and lawful govt.
(b) During its existence, it must necessarily be obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts,
though not warranted by the laws of the rightful govt.

2. "GOVERNMENT OF THE PHILIPPINES" defined

Bacani vs. NACOCO, GR No. L-9657, November 29, 1956 (100 PHIL 468)

DOCTRINE: TERM "GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES" CONSTRUED. — The term
"Government of the Republic of the Philippines" used in section 2 of the Revised Administrative Code refers to
that government entity through which functions of the government are exercised as an attribute of sovereignty,
and in this are included those arms through which political authority is made effective whether they be provincial,
municipal or other form of local government. These are what we call municipal corporations. They do not include
government entities which are given a corporate personality separate and distinct from the government and
which are governed by the Corporation Law, such as the National Coconut Corporation. Their powers, duties and
liabilities have to determined in the light of that law and of their corporate charters. They do not therefore come
within the exemption clause prescribed in section 16, Rule 130 of our Rules of Court.

HELD: NACOCO is a government entity organized to promote the coconut industry. In a litigation concerning
NACOCO, the government counsel appeared for it and obtained a transcript of stenographic notes. Under the
Rules of Court, the government is exempted from payment of the transcript. Is NACOCO part of the
government?

The SC held that it is not because NACOCO was organized to perform ministrant functions.

But according to Confederation of Government Employees vs. Agrarian Reform, the distinction between the two
functions of the government - constituent and ministrant - no longer holds under the 1935 Constitution, which
imposed a greater role on the government.

NATIONAL GOVERNMENT refers to the entire machinery of the central government, as


distinguished from the different forms of local governments.

D. SOVEREIGNTY

• "Sovereignty is the supreme and uncontrollable power inherent in a State by which the
State is governed. There are two kinds of sovereignty, to wit, legal and political.
Legal sovereignty is the authority which has the power to issue final commands
whereas political sovereignty is the power behind the legal sovereign, or the sum total
of the influences that operate upon it.

• Sovereignty may also be internal or external. Internal sovereignty refers to the power
of the State to control its domestic affairs. External sovereignty, which is the power of
the State to direct its relations with other States, is also known as independence. xxx"
(Cruz.)

• The supreme power of the State to govern persons and things within its territory.

• “Theory of Auto-Limitation” is the property of the State-force due to which a State has
exclusive legal competence of self-limitation and self-restriction (Jellinek).

• In Reagan v CIR, it was held that the provision in the military bases agreement giving
the US criminal jurisdiction over crimes committed even by Filipinos inside the bases is
not a derogation of Philippine sovereignty. The Philippines has the power to limit the
exercise of its sovereignty. When it allows a foreign State to use part of its territory
and waives jurisdiction over crimes committed therein, it does not give up part of its
sovereignty but only limits the exercise of its sovereignty."
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 9 of 33

Kinds of Sovereignty

Legal Political Internal External


Refers to the Refers to the power Refers to the power Refers to the power
Authority that has behind legal of the state to of the state to
the power to issue sovereignty, ie; the control its domestic direct its relations
Final commands, different sectors affairs with other states
That is the Congress that mold public a.k.a. Independence
Opinion

Tanada v. Angara, GR No. 118295, May 2, 1997 (272 SCRA 18)

Is sovereignty really absolute?

HELD: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it
is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly,
as a member of the family of nations. In its Declaration of Principles and State Policies, the Constitution "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." By the doctrine of incorporation, the
country is bound by generally accepted principles of international law, which are considered to be automatically
part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda —
international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation
but creates a legally binding obligation on the parties . . . A state which has contracted valid international
obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of
the obligations undertaken."

1. DOMINIUM and IMPERIUM

Imperium refers to the State's authority to govern. It covers such activities as passing
laws governing a territory, maintaining peace and order over it, and defending it against
foreign invasion. When the State act in this capacity jure imperii, it generally enjoys
sovereign immunity.

Dominium refers to the capacity of the State to own property. It covers such rights as
title to land, exploitation and use of it, and disposition or sale of the same. The Regalian
doctrine whereby all lands of the public domain belong to the State, and anyone claiming
title has the burden to show ownership, comes within this concept. In this capacity jure
gestium, the State descends to the status of ordinary persons and thus becomes liable as
such."

• A state as a juridical person may act in the capacity of sovereign as well as owner.
xxx "As there are overtones indicative of skepticism, if not of outright rejection, of
the well-known distinction in public law bet. the governmental authority possessed
by the state which is appropriately embraced in the concept of sovereignty, and its
capacity to own or acquire prop., it is not inappropriate to pursue the matter
further. The former comes under the heading of imperium and the latter of
dominium. The use of this term is appropriate w/ reference to lands held by the
state in its proprietary character. In such capacity, it may provide for the
exploitation and use of lands and other natural resources, including their disposition,
except as limited by the Consti. Dean Pound did speak of the confusion that existed
during the medieval era bet. two such concepts, but did note the existence of res
publicae as a corallary to dominium. xxx [T]here was a recognition by J. Homes in
Carino v. Insular Gov't, that 'Spain in its earlier decrees embodied the universal
theory that all lands were held from the Crown***.' That was a concept of jus
regalia, w/c was adopted by the 1973 Consti., ownership however being vested in
the state as such rather than the head thereof. (Fernando 56.)
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 10 of 33

Distinguish sovereignty from dominion.

Sovereignty is the right to exercise the functions of a State to the exclusion of any other
State. It is often referred to as the power of imperium, which is defined as the
government authority possessed by the State. On the other hand, dominion, or
dominium, is the capacity of the State to own or acquire property such as lands and
natural resources.6

2. TERRITORIAL, PERSONAL, and EXTRATERRITORIAL JURISDICTION

Jurisdiction is the manifestation of sovereignty.

• The jurisdiction of the state is understood as both its authority and the sphere of the
exercise of that authority. (Sinco 26.)

a. Territorial jurisdiction is the authority of the State to have all persons and things
within its territorial limits to be completely subject to its control and protection.

• When exercised in reference to persons or things found within the territory of the
state, it is known as territorial jurisdiction. All persons within that area, regardless
of nationality, are subject to the territorial jurisdiction of the state.

• The territorial jurisdiction of a state is sovereignty operating or applied within its


territory. Its scope and effect are expressed in this classic statement of Chief
Justice Marshall on the subject:

"The jurisdiction of the nation within its own territory is necessarily exclusive
and absolute. It is susceptible of no limitation not imposed by itself. Any
restriction upon it, deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restriction, and an
investment of that sovereignty to the same extent in that power which would
impose such restriction. All exceptions, therefore, to the full and complete
power of a nation w/in its own territories, must be traced up to the consent of
the nation itself. They can flow from no other legitimate source. This consent
may be either express or implied." (Sinco 26-27.)

b. Personal jurisdiction is the authority of the state over its nationals, their persons,
property, and acts, whether within or outside its territory. The Civil Code provision that
prohibitory and mandatory laws follow citizens wherever they go is an example.

• When jurisdiction is exercised on the basis of the status of the persons affected,
independent of their presence or absence in the territory of the state, it is known as
personal jurisdiction. (Sinco 26.)

• The personal jurisdiction of the state is exercised over all its citizens within or
without its territory. It affects their person, property, and even some of their acts
performed abroad. The authority of the state to which they owe permanent
allegiance follows them at all times wherever they might reside and as long as their
membership of the state subsists. (Sinco 28.)

c. Extraterritorial jurisdiction is the authority of the State over persons, things or acts,
outside its territorial limits by reason of their effects to its territory. Art. 2 of the RPC is a
classic example of this.

6
Separate Opinion, Kapunan, J., in Isagani Cruz vs. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 11 of 33

• By agreement with other states, a state may establish its legal institutions outside
its territorial limits. Thus if a state does not have sufficient confidence in the
administration of justice and the system of law obtaining in a particular country, it
may enter into a treaty for the establishment of its own courts in the latter country
where its citizens or nationals may be tried.

• Regardless of treaty or agreement, however, a state has full authority to adopt rules
intended to apply to persons, whether citizens or aliens, and things found in the
territory of other states or on the high seas under certain conditions. Of course, the
actual enforcement of rules intended to have extraterritorial effect may be
accomplished only when the persons concerned are found w/in the territorial
jurisdiction of the state. To enforce them in the territorial limits of another state
would be to violate the sovereignty of the latter, unless this state gives its consent
thereto. Thus, we have Art. 2 of the Revised Penal Code:

"Art. 2. Except as provided in the treaties and laws of preferential


application, the provisions of this Code shall be enforced not only within the
Philippine Archipelago, including its atmosphere, its interior waters and
maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship.
2. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the
Philippines.
3. Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the preceding
number.
4. While being public officers or employees, should commit an offense in
the exercise of their functions; or
5. Should commit any of the crimes against national security and the law
of nations, defined in Title One of Book Two of this Code."

DOCTRINE OF STATE IMMUNITY FROM SUIT


(A) BASIS

i. Constitutional

Art. XVI, Sec. 3. The State may not be sued without its consent.

ii. Jurisprudence

Positivist theory: There can be no legal right as against the authority that makes the
laws on which the right depends.7

Sociological theory: If the State is amenable to suits, all its time would be spent
defending itself from suits and this would prevent it from performing its other functions.8

• The doctrine is also available to foreign States insofar as they are sought to be sued in the courts of the
local State. The added basis in this case is the principle of the sovereign equality of States, under which
one State cannot assert jurisdiction over another in violation of the maxim par in parem non habet
imperium. To do so would "unduly vex the peace of nations." (Cruz.)

Basis of the Doctrine of State Immunity


Ethical Practical
As to a local state As to a foreign state
"There can be no "Par in parem non The state will be
7
Justice Holmes as stated in the doctrinal case of Kawananakoa vs. Polyblank)
8
Republic vs. Villasor, 54 SCRA 83
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 12 of 33

legal right against habet imperium" busy defending


the authority that Doctrine of sovereign itself from lawsuits
makes the law on equality of all states
which the right
depends"

Republic vs. Villasor, GR No. L-30671, November 28, 1973 (54 SCRA 83)

QUESTION: What is the reason behind the Doctrine of State Immunity from suit?

HELD: It is a fundamental postulate of constitutionalism flowing from the juristic concept of sovereignty that the
state as well as its government is immune from suit unless it gives its consent. It is readily understandable why it
must be so. A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on
the logical and practical ground that there can be no legal right as against the authority that makes the law on
which the right depends. (J. Holmes, Kawananakoa v. Polyblank, 205 US 349.) Sociological jurisprudence
supplies an answer not dissimilar. A continued adherence to the doctrine of non-suability is not to be deplored
for as against the inconvenience that may be caused private parties, the loss of governmental efficiency and the
obstacle to the performance of its multifarious functions are far greater if such a fundamental principle were
abandoned and the availability of judicial remedy were not thus restricted.

The State may not be sued without its consent. A corollary, both dictated by logic and sound sense from such a
basic concept is that public funds cannot be the object of a garnishment proceeding even if the consent to be
sued had been previously granted and the state liability adjudged. This is based on considerations of public
policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law.
The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the
diversion of public funds from their legitimate and specific objects, as appropriated by law.

Department of Agriculture vs. NLRC, 227 SCRA 693 (1993) GR No. 104269

QUESTION: Why is the Doctrine of State Immunity from suit called “the Royal prerogative of dishonesty”?

HELD: The basic postulate enshrined in the Constitution that “The State may not be sued without its consent,”
reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the
unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the very essence of
sovereignty. As has been aptly observed by Justice Holmes, a sovereign is exempt from suit, not because of any
formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right depends. True, the doctrine, not too infrequently, is
derisively called “the royal prerogative of dishonesty” because it grants the state the prerogative to defeat any
legitimate claim against it by simply invoking its non-suability. We have had occasion to explain in its defense,
however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of
governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in
severity than the inconvenience that may be caused private parties, if such fundamental principle is to be
abandoned and the availability of judicial remedy is not to be accordingly restricted.

QUESTION: Is the doctrine of State Immunity absolute?

HELD: The rule, in any case, is not really absolute for it does not say that the state may not be sued under any
circumstances. On the contrary the doctrine only conveys, “the state may not be sued without its consent;” its
clear import then is that the State may at times be sued. The State's consent may be given either expressly or
impliedly. Express consent may be made through a general law (i.e., Commonwealth Act No. 327, as amended
by Presidential Decree No. 1445 [Sections 49-50], which requires that all money claims against the government
must first be filed with the Commission on Audit which must act upon it within sixty days. Rejection of the claim
will authorize the claimant to elevate the matter to the Supreme Court on certiorari and, in effect, sue the State
thereby) or a special law. In this jurisdiction, the general law waiving the immunity of the state from suit is found
in Act No. 3083, where the Philippine government “consents and submits to be sued upon any money claim
involving liability arising from contract, express or implied, which could serve as a basis of civil action between
the private parties.” Implied consent, on the other hand, is conceded when the State itself commences litigation,
thus opening itself to a counterclaim or when it enters into a contract. In this situation, the government is
deemed to have descended to the level of the other contracting party and to have divested itself of its sovereign
immunity.

(B) WHEN A SUIT IS AGAINST THE STATE AND WHEN IT IS NOT.


Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 13 of 33

A suit is against the State, regardless of who is named as the defendant, if it produces adverse consequences to
the public treasury in terms of disbursement of public funds and loss of government property.

• When a suit is against the State, it cannot prosper unless the State has given its consent.

In the following cases, however, the suit is not really against the State.

1. When the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an
appropriation made by law in favor of the plaintiff to make such payment. For in this case, the suit is not
really against the State, the State having acknowledged its liability to the plaintiff through the enactment of an
appropriation law. Rather, the suit is intended to compel performance of a ministerial duty. (Begoso v PVA,
32 SCRA 466 and Del Mar v PVA, 51 SCRA 340 both involving the War Widow Benefits Law due the
veterans.)

2. When from the allegations in the complaint, it is clear that the respondent is a public officer sued in a private
capacity.

3. When the action is not in personam with the government as the named defendant, but an action in rem that
does not name the government in particular.

Lansang vs. CA, GR No. 102667, February 23, 2000 (326 SCRA 259)

QUESTION: When is a suit against a public official considered a suit against the state and when is it not?

HELD: 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.

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.

Sanders vs. Veridiano II, GR No. L-46930, June 10, 1988 (162 SCRA 88)

The basic issue to be resolved in this case is whether or not the petitioners were performing their official duties
when they did the acts for which they have been sued for damages by the private respondents?

HELD: It is stressed at the outset that the mere allegation that a government functionary is being sued in his
personal capacity will not automatically remove him from the protection of the law of public officers and, if
appropriate, the doctrine of state immunity. By the same token, the mere invocation of official character will not
suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed without
or in excess of his authority. These well-settled principles are applicable not only to the officers of the local state
but also where the person sued in its courts pertains to the government of a foreign state, as in the present case.

It is abundantly clear in the present case that the acts for which the petitioners are being called to account were
performed by them in the discharge of their official duties. Sanders, as director of the special services department
of NAVSTA, undoubtedly had supervision over its personnel, including the private respondents, and had a hand in
their employment, work assignments, discipline, dismissal and other related matters. It is not disputed that the
letter had written was in fact a reply to a request from his superior, the other petitioner, for more information
regarding the case of the private respondents. Moreover, even in the absence of such request, he still was within
his rights in reacting to the hearing officer's criticism — in effect a direct attack against him — that Special
Services was practicing "an autocratic form of supervision."

As for Moreau, what he is claimed to have done was write the Chief of Naval Personnel for concurrence with the
conversion of the private respondents' type of employment even before the grievance proceedings had even
commenced. Disregarding for the nonce the question of its timeliness, this act is clearly official in nature,
performed by Moreau as the immediate superior of Sanders and directly answerable to Naval Personnel in
matters involving the special services department of NAVSTA. In fact, the letter dealt with the financial and
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 14 of 33

budgetary problems of the department and contained recommendations for their solution, including the re-
designation of the private respondents. There was nothing personal or private about it.

Given the official character of the above-described letters, we have to conclude that the petitioners were, legally
speaking, being sued as officers of the United States government. As they have acted on behalf of that
government, and within the scope of their authority, it is that government, and not the petitioners personally,
that is responsible for their acts. Assuming that the trial can proceed and it is proved that the claimants have a
right to the payment of damages, such award will have to be satisfied not by the petitioners in their personal
capacities but by the United States government as their principal. This will require that government to perform an
affirmative act to satisfy the judgment, viz., the appropriation of the necessary amount to cover the damages
awarded, thus making the action a suit against that government without its consent.

There should be no question by now that such complaint cannot prosper unless the government sought to be
held ultimately liable has given its consent to be sued. So we have ruled not only in Baer but in many other
decisions where we upheld the doctrine of state immumity as applicable not only to our own government but also
to foreign states sought to be subjected to the jurisdiction of our courts.

All this is not to say that in no case may a public officer be sued as such without the previous consent of the
state. To be sure, there are a number of well-recognized exceptions. It is clear that a public officer may be sued
as such to compel him to do an act required by law, as where, say, a register of deeds refuses to record a deed
of sale; or to restrain a Cabinet member, for example, from enforcing a law claimed to be unconstitutional; or to
compel the national treasurer to pay damages from an already appropriated assurance fund; or the commissioner
of internal revenue to refund tax overpayments from a fund already available for the purpose; or, in general, to
secure a judgment that the officer impleaded may satisfy by himself without the government itself having to do a
positive act to assist him. We have also held that where the government itself has violated its own laws, the
aggrieved party may directly implead the government even without first filing his claim with the Commission on
Audit as normally required, as the doctrine of state immunity "cannot be used as an instrument for perpetrating
an injustice."

Republic vs. Feliciano, GR No. 70853, march 12, 1987 (148 SCRA 424)

FACTS: Respondent Pablo Feliciano filed a complaint in the CFI (now RTC) of Camarines Sur against the Republic
of the Philippines, represented by the land authority, for the recovery of ownership and possession of a parcel of
land in Tinambac, Camarines Sur. He alleged that the lot in question should be excluded from the NARRA
settlement reservation program of the government under Proc. No. 90, since it's his private property being
covered by a possessory information title in the name of his predecessor-in-interest. (Proc. No. 90 reserves for
settlement purposes, under the administration of the NARRA, now the Land Authority, a tract of land situated in
the Municipalities of Tinambac and Siruma, Camarines Sur.) Feliciano prayed that he be declared the rightful
owner of the property in question.

A motion to dismiss, principally on the ground that the Republic of the Philippines cannot be sued without its
consent and hence the action cannot prosper, was filed by 86 settlers (as intervenors) of the land in question.

The CFI granted the motion to dismiss, which was then reversed by the IAC on appeal. Hence this petition by the
Republic.

ISSUES: 1. WON the doctrine of non-suability of the state can be invoked in this case. (YES)

HELD: The doctrine of non-suability of the State has proper application in this case. The plaintiff has impleaded
the RP as defendant in an action for recovery of ownership and possession of a parcel of land, bringing the State
to court just like any private person who is claimed to be usurping a piece of property. A suit for the recovery of
property is not an action in rem, but an action in personam.

By its caption and its allegation and prayer, the complaint is clearly a suit against the State, which under settled
jurisprudence is not permitted, except upon a showing that the State has consented to be sued, either expressly
or by implication through the use of statutory language too plain to be misinterpreted. There is no such showing
of consent in the instant case. Worse, the complaint itself fails to allege the existence of such consent. This is a
fatal defect, and on this basis alone, the complaint should have been dismissed.

The failure of the petitioner to assert the defense of immunity from suit when the case was tried before the court
a quo, as alleged by private respondent, is not fatal. It is now settled that such defense "may be invoked by the
courts sua sponte at any stage of the proceedings."
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 15 of 33

2. WON the consent of the RP may be read from Proc. No. 90 itself. (NO)

HELD: The exclusion of existing private rights from the reservation established by Proc. no. 90 cannot be
construed as a waiver of the immunity of the State from suit. Waiver of immunity, being in derogation of
sovereignty, will not be inferred lightly, but must be construed in strictissimi juris. Moreover, the Proclamation is
not a legislative act. The consent of the State to be sued must emanate from statutory authority. Waiver of State
Immunity can only be made by an act of the legislative body.

Begosa vs. Chairman, Philippine Veterans Adm., GR No. L-25916, April 30, 1970 (32 SCRA 466)

FACTS: Gaudencio Begosa, plaintiff-appellee, was an "enlisted men of the Philippine Commonwealth Army,
inducted in the service of the USAFFE" having taken "active participation in the battle of Bataan" as well as the
"liberation drive against the enemy" thereafter became "permanently incapacitated from work due to injuries he
sustained in line of duty xxx."

Plaintiff filed his claim for disability pension as far back as March 4, 1955; but it was erroneously disapproved on
May 21, 1955, because his dishonorable discharge from the Army was not a good or proper ground for the said
disapproval, and that on reconsideration asked for by him on November 1, 1957, which he continued to follow
up, the Board of Administrators, Philippine Veterans Administration (PVA), finally approved his claim on
September 2, 1964, at the rate of P30/mo. Judge Soriano noted that: "had it not been for the said error, it
appears that there was no good ground to deny the said claim, so the latter was valid and meritorious even as of
the date of its filing on March 4, 1955, hence to make the same effective only as of the date of its approval on
September 2, 1964 - according to defendants stand - would be greatly unfair and prejudicial to plaintiff.

The appeal assigns as one error what it considers to be the failing of the LC in not holding that the complaint in
this case is in effect a suit against the State which has not given its consent thereto.

HELD: It does not admit of doubt that if the suit were in fact against the State, the Lower Court should have
dismissed the complaint. Nor is it to be doubted that while ostensibly an action may be against a public official,
the defendant may in reality be the government. As a result, it is equally well-settled that where a litigation may
have adverse consequences on the public treasury, whether in the disbursement of funds or loss of prop., the
public official proceeded against not being liable in his personal capacity, then the doctrine of non-suability may
appropriately be invoked. It has no application, however, where the suit against such a functionary had to be
instituted because of his failure to comply w/ the duty imposed by statute appropriating public funds for the
benefit of plaintiff or petitioner. Such is the present case.

However, where the judgement in such a case would result not only in the recovery of possession of the property
in favour of said citizen but also in a charge against or financial liability of the Government, then the suit should
be regarded as one against the government itself, and consequently, it cannot prosper or be validly entertained
by the courts except with the consent of said Government.

Del Mar v. Philippine Veterans Administration (PVA), 51 SCRA 340 (1973) GR No. L-27299

FACTS: Del Mar averred that he served during WW II as chief judge advocate of the Cebu Area Command (a
duly recognized guerrilla organization) with the rank of major; that he subsequently obtained an honorable
discharge from the service on October 20, 1946 on a certificate of permanent total physical disability; that upon
proper claim presented and after hearing and adjudication, the Phil. Veterans Board granted him a monthly life
pension of P50 effective January 28, 1947; that in March 1950, the said Board discontinued payment of monthly
life pension on the ground that his receipt of similar pension from the US Government, thru the US Veterans
Administration by reason of military service rendered in the US in the Far East during the war, precluded him
from receiving any further monthly life pension from the Philippine Government; that he wrote the said Board
twice, demanding the continued payment of his monthly pension but his demands went unheeded. And petition
for mandamus was filed with CFI-Cebu which rendered judgment upholding Del Mar's claim.

The PVA argues that the court a quo was without jurisdiction to try the civil case because it involves a money
claim against PVA - a mere agency of the Govt performing governmental functions with no juridical personality of
its own- and, in reality, partakes of an action against the Phil. Govt which is immune from suit without its
consent.

HELD: As a general proposition, the rule on the immunity of the Govt from suit without its consent holds true in
all actions resulting in "adverse consequences on the public treasury, whether in the disbursements of funds or
loss of property. Needless to say, in such actions, which, in effect, constitute suits against the Government, the
court has no option but to dismiss them. Nonetheless, the rule admits of an exception. It finds no application
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 16 of 33

where a claimant institutes an action against a functionary who fails to comply with his statutory duty to release
the amount claimed from the public funds already appropriated by statute for the benefit of the said claimant. As
clearly discernible from the circumstances, the case at bar falls under the exception.

Shauf vs. CA, 191 SCRA 713 (1990) GR No. 90314

Doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen.

FACTS: By reason of her non-selection to a position at Clark Air Base, Shauf filed an equal opportunity complaint
against officers of Clark Air Base, for alleged discrimination against the former by reason of her nationality and
sex. She then filed a complaint for damages with the RTC. Respondents filed a MTD on the ground that as
officers of the US Armed Forces performing official functions in accordance with the powers vested in them, they
are immune from suit.

Shauf contends that the officers are being sued in their private capacity for discriminatory acts performed beyond
their authority, hence the instant action is not a suit against the US Govt. which would require its consent.
According to respondents, the complaint is barred by the immunity of the US since the acts sued upon are
governmental activities of the US.

HELD: 1. The general rule is that a state may not be sued without its consent. While the doctrine appears to
prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of
the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as
against the state itself, although it has not been formally impleaded.

2. It is a different matter where the public official is made to account in his capacity as such for acts contrary to
law and injurious to the rights of plaintiff. Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of govt. officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a
suit against the State within the rule of immunity of the State from suit. The doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.

3. The cloak of immunity is removed from the moment the public official is sued in his individual capacity such as
where he acts without authority or in excess of the powers vested in him. A public official may be liable in his
personal capacity for whatever damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction. In this case, the officers are liable for damages.

Republic vs. Sandoval, GR No. 84607, March 19, 1993 (220 SCRA 124)

ISSUE: WON herein public officials, having been found to have acted beyond the scope of their authority, may
be held liable for damages.

FACTS: The heirs of the 12 rallyists who perished during the Mendiola massacre filed an action for damages.
Such action was filed against the government. This was by virtue of a recommendation made by the Citizen's
Mendiola Commission (created for the purpose of conducting an investigation of the disorder, deaths and
casualties that took place during the Mendiola incident.) that the heirs and wounded victims of the incident be
compensated by the Govt. Notwithstanding such recommendation, no concrete form of compensation was
received by the victims. The Caylo Group (the group of marchers in the said incident) filed a formal letter of
demand from the govt. Still unheeded for almost a year, the group filed an action against the government,
together with the military officers and personnel involved in the incident before the trial court. Respondent Judge
dismissed the complaint as against the RP on the ground that there was no waiver by the Sate.

HELD: 1. The principle of immunity from suit is based on the very essence of sovereignty, and on the practical
ground that there can be no legal right as against the authority that makes the law on which the right depends.
It also rests on reasons of public policy -- that public service would be hindered, and the public endangered, if the
sovereign authority could be subjected to law suits at the instance of every citizen and consequently controlled in
the uses and dispositions of the means required for the proper administration of the government.

2. This is not a suit against the State with its consent. Firstly, the recommendation made by the Mendiola
Commission regarding indemnification of the heirs and the victims of the incident by the government does not in
any way mean that liability automatically attaches to the State. The Commission was merely a fact-finding body
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 17 of 33

and its recommendation was not final and executory. Secondly, whatever acts or utterances that President
Aquino may have done or said, the same are not tantamount to the State having waived its immunity from suit.
Although consent to be sued may be given impliedly, such consent was not given in this case.

3. Some instances when a suit is against the State:


(1) when the Republic is sued by name;
(2) when the suit is against an unincorporated govt. agency;
(3) when the suit is on its face against a govt. officer but the case is such that the ultimate liability will
belong not to the officer but to the govt.

In this case, while the Republic is sued by name, the ultimate liability does not pertain to the government
Although the military officers were discharging their official functions when the incident occurred, their functions
ceased to be official the moment they exceeded their authority. Immunity from suit cannot institutionalize
irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the
Republic.

The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit
requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation w/c
belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to
hold or act only by virtue of a title of the state and as its agents and servants.

They are therefore liable for damages.

(C) CONSENT TO BE SUED

How consent is given

The consent to be sued, in order to be effective, must come from the State, acting
through a duly enacted statute. Waiver of state immunity can only be made by an act of
legislative body.

In Republic v Purisima, 78 SCRA 470 (1977), the SC held that a contract entered into by the Rice
and Corn Administration stipulating that in the event of breach, action may be filed by the
parties, cannot be the basis of a money claim against the RCA, a government entity under
the Office of the President, since the RCA had no authority to bind the government to be
sued. Only a statute could.

Republic vs. Purisima, GR No. L-36084, August 31, 1977 (78 SCRA 470)

Suability of the State. The Need for a Statute Giving Consent

FACTS: The Rice & Corn Administration (RCA) entered into a contract with the Yellow Ball Freight Lines in which
they agreed that in the event of breach, action may be filed with the courts of Manila. In 1972, Yellow Ball filed a
money claim against RCA. The case was assigned to respondent Judge, who denied a motion to dismiss filed by
RCA relying on the stipulation in the contract of the parties.

HELD: The RCA is part of the govt, being in fact an office under the Office of the President and therefore cannot
be sued w/o the consent of the State. The consent to be effective.... must come from the State, acting thru a
duly enacted statute. Thus, whatever counsel for def. RCA agreed to, had no binding force in the govt. That was
clearly beyond the scope of his authority.

In Republic v Feliciano, 148 SCRA 424, the SC held that the Proclamation of the President of
the Philippines (recognizing private rights to the land) cannot be the source of consent,
since the Proclamation is not a legislative act.

Express consent:

(1) Money claims arising from contracts, express or implied.

Act No. 3083.


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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 18 of 33

An Act Defining the Conditions under which the


Government of the Philippines may be Sued.

Sec. 1. Subject to the provisions of this Act, the Government of the Philippines hereby consents
and submits to be sued upon any moneyed claim involving liability arising from contract, express
or implied, which could serve as a basis of civil action between private parties.

Sec. 2. A person desiring to avail himself of the privilege herein conferred must show that he
has presented his claim to the Commission on Audit and that the latter did not decide the same
within two months from the date of its presentation.

Sec. 3. Original actions brought pursuant to the authority conferred in this Act shall be instituted
in the Regional Trial Court of the City of Manila or of the province where the claimant resides, at
the option of the latter, upon which court exclusive original jurisdiction is hereby conferred to
hear and determine such actions.

Sec. 4. Actions instituted as aforesaid shall be governed by the same rules of procedure, both
original and appellate, as if the litigants were private parties.

Sec. 5. When the Government of the Philippines is plaintiff in an action instituted in any court of
original jurisdiction, the defendant shall have the right to assert therein, by way of set-off or
counterclaim in a similar action between private parties.

Sec. 6. Process in actions brought against the Government of the Philippines pursuant to the
authority granted in this Act shall be served upon the Solicitor-General whose duty it shall be to
appear and make defense, either himself or through delegates.

Sec. 7. No execution shall issue upon any judgment rendered by any court against the
Government of the Philippines under the provisions of this Act; but a copy thereof duly certified
by the clerk of the Court in which judgment is rendered shall be transmitted by such clerk to the
President of the Philippines, within five days after the same becomes final.

Sec. 8. The President of the Philippines, at the commencement of each regular session of the
Legislature, shall transmit to that body for appropriate action all decisions so received by him,
and if said body determine that payment should be made, it shall appropriate the sum which the
Government has been sentenced to pay, including the same in the appropriations for the ensuing
year.

Sec. 9. This Act shall take effect on its approval.

Approved, March 16, 1923.

Com. Act 327.


An Act Fixing the Time within which the Auditor General
shall Render His Decisions and Prescribing the
Manner of Appeal Therefrom.

Sec. 1. In all cases involving the settlement of accounts or claims, other than those of
accountable officers, the Auditor General shall act and decide the same within sixty days,
exclusive of Sundays and holidays, after their presentation. If said accounts or claims need
reference to other persons, office or offices, or to a party interested, the period aforesaid shall be
counted from the time the last comment necessary to a proper decision is received by him. With
respect to the accounts of accountable officers, the Auditor General shall act on the same within
one hundred days after their submission, Sundays and holidays excepted.

In case of accounts or claims already submitted to but still pending decision by the Auditor
General on or before the approval of this Act, the periods provided in this section shall commence
from the date of such approval.

Sec. 2. The party aggrieved by the final decision of the Auditor General in the settlement of an
account or claim may, within thirty days from receipt of the decision, take an appeal in writing:
(a) xxx
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 19 of 33

(b) To the President of the Philippines, or


(c) To the Supreme Court of the Philippines, if the appellant is a private person or entity.

If there are more than one appellant, all appeals shall be taken to the same authority resorted to
by the first appellant.

From a decision adversely affecting the interests of the Government, the appeal may be taken by
the proper head of the department or in case of local governments by the head of the office or
branch of the Government immediately concerned.

The appeal shall specifically set forth the particular action of the Auditor General to which
exception is taken with the reasons and authorities relied on for reversing such decision.

Sec. 3. This Act shall take effect upon its approval.

Approved, June 18, 1938.

Sec. 2 of CA 327 has been amended by Sec. 50 of PD 1445 and by Sec. 35, Chapter 5,
Subtitle B, Title I, Book V, Administrative Code of the Philippines, as follows:

Sec. 50. Appeal from decisions of the Commission.-- The party aggrieved by any
decision, order, or ruling of the Commission may within thirty days from his receipt of a copy
thereof appeal on certiorari to the Supreme Court in the manner provided by law and the Rules
of Court. When the decision, order, or ruling adversely affects the interests of any government
agency, the appeal may be taken by the proper head of that agency. (PD 1445.)

Sec. 35. Appeal from Decision of the Commission.-- Any decision, order or ruling of the
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from his receipt of a copy thereof in the manner provided by law and the Rules of
Court. When the decision, order or ruling adversely affects the interest of any government
agency, the appeal may be taken by the proper head of that agency. (Subtitle B, Title I, Book V,
Administrative Code of the Philippines.)

Before the 1987 Constitution, the law in force was Act No. 3038 and CA No. 327 which, according to Sayson v.
Singson (a suit to compel payment of electrical supplies delivered to CAA), allowed suit only for money claims
arising from contract, and providing a special procedure.

Under this procedure, the claim must be filed with the Auditor General (now, COA). If the Auditor did not act
within 60 days, then the claimant could file his claim with the RTC. But if the Auditor rendered a decision, then
the appeal could be made to the SC, unless the claimant was a public official in which case appeal was to the
President.

Art. IX of the 1987 Constitution now gives a different procedure. All money claims are to be filed with COA,
which has 60 days within which to act. If it fails to so act, the claimant must wait anyway. Once a decision has
been made, he has, within 30 days to appeal by certiorari to the SC.

Sayson vs. Singson, GR No. L-30044, December 19, 1973 (54 SCRA 282)

FACTS: In 1/67, the Office of the District Engr. requisitioned various spare parts for the repair of a D-8 Bulldozer.
A public bidding for the said items was conducted wherein the awards committee accepted the winning bid of
P43,530 given by Singkier Motor Service owned by resp. Singson. Said award was approved by the Sec. of Public
Works and Comm. who then directed the immediate delivery of the parts. In due course, the voucher w/c
covered the transaction reached the hands of petitioner Highway Auditor Sayson who then made inquiries about
the reasonableness of the price. After finding the price reasonable (as was evidenced by the indorsements of the
Div. Engr. and the Comm. of Public Highways, the approval of the Sec. of PW & C, and the verification of the
representative of the Bureau of Supply Coordination), petitioner approved and effected payment of the voucher
and withheld the 20% equivalent of P8,706 in order to submit the documents covering the transaction to the
Supervising Auditor for review. After making a canvass, the General Auditing Office determined the transaction
to be overpriced by at least P40,000. Malversation charges were failed against the district engr. and civil engr.
involved. A mandamus suit was filed by the resp. w/c sought to compel petitioner government auditors to
approve the payment of the voucher covering the balance. The LC decided in favor of resp. Singson. Hence this
appeal by certiorari.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 20 of 33

HELD: It is apparent that resp. Singson's cause of action is a money claim against the Govt, for the payment of
the alleged balance of the cost of spare parts supplied by him to the Bureau of Public Highways. Assuming
momentarily the validity of such claim, mandamus is not the remedy to enforce the collection of such claim
against the State ***, but an ordinary action for specific performance***. Actually, the suit disguised as one for
mandamus to compel the Auditors to approve the vouchers for payment, is a suit against the State, w/c cannot
prosper or be entertained by the Court except w/ the consent of the State***. In other words, the resp. should
have filed his claim w/ the General Auditing Office, under the provisions of CA 327*** w/c prescribe the
conditions under w/c money claim against the government may be filed.

It is true that once consent is secured, an action may be filed. There is nothing to prevent the State, however, in
such statutory grant, to require that certain administrative proceedings be had and be exhausted. Also, in the
proper forum in the judicial hierarchy can be specified if thereafter an appeal would be taken by the party
aggrieved. Here, there was no ruling of the Auditor Gen. Even had there been such , the court to w/c the matter
should have been elevated is this Tribunal; the LC could not legally act on the matter.

(2) Quasi-delicts committed by special agents

Art. 2180. The obligation imposed by article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons for whom one is
responsible.
xxx
The State is responsible in like manner when it acts through a special agent,
but not when the damage has been caused by the official to whom the task done
properly pertains, in which case what is provided in Art. 2176 shall be applicable.
xxx (Civil Code.)

Art. 2176. Whoever by act or omission causes damage to another, there


being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter. (ibid.)

Art. 2180 of the Civil Code allows a suit against the government for quasi-delicts committed by the government
when acting through special agents (those performing non-regular functions)

But if the tortious act was committed by a regular employee, the injured party could only bring a suit for
damages against the employee in his personal capacity.

It should be noted in this connection, that in Merritt vs. Govt. of the Philippine Islands, 34 Phil 311, the SC
said that it is therefore evident that the State is only liable for acts of its agents, officers and EEs when they act
as special agents within the meaning of Art. 1903 (now Art. 2180) and that the chauffeur of the ambulance of the
General Hospital was not such agent. In this case, the Philippine General Hospital (PGH), the agency involved,
did not yet have separate legal personality from the Philippine Govt. It should further be noted that the plaintiff
was allowed to sue by virtue of a special law but was unable to hold the defendant govt. liable since the injuries
were caused by a regular driver of the govt. and not a special agent.

Merritt vs. Government of the Philippine Islands, GR No. L-11154, March 21, 1916 (34 Phil 311)

FACTS: Merritt, while riding his motorcycle was hit by an ambulance owned by the Philippine General Hospital. It
was driven by a driver employed by the hospital. In order for Merritt to sue the Philippine government, Act No.
2457 was enacted by the Philippine Legislature authorizing E. Merritt to bring suit against the Government of the
Philippine Islands and authorizing the Attorney-General of said Islands to appear in said suit. A suit was then
filed before the CFI of Manila which fixed the responsibility for the collision solely on the ambulance driver and
determined the amount of damages to be awarded to Merritt. Both parties appealed from the decision, plaintiff
Merritt as to the amount of damages and defendant in rendering the amount against the government.

ISSUE: Did the defendant in enacting Act No. 2457 simply waive its immunity from suit or did it also concede its
liability to the plaintiff?

HELD: By consenting to be sued, a state simply waives its immunity from suit. It does not thereby concede its
liability to the plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 21 of 33

recognized. It merely gives a remedy to enforce a pre-existing liability and submit itself to the jurisdiction of the
court, subject to its right to interpose any lawful defense.

Act No. 2457 authorizes E. Merritt to bring suit for the purpose of fixing the responsibility for the collision and
determining the amount of damages, if any, to which E. Merritt is entitled on account of said collision. The
government did not assume any liability under the Act.

The Government of the Philippine Islands is only liable, for the acts of its agents, officers and employees when
they act as special agents within the meaning of paragraph 5 of A1903, OCC (par. 6, Art. 2180, NCC). A special
agent is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his
office if he is a special official. The special agent acts in representation of the state and executes the trust
confided to him. This concept does not apply to any executive agent who is an employee of the active
administration and who on his own responsibility performs the functions w/c are inherent in and naturally pertain
to his office and w/c are regulated by law and the regulations. The responsibility of the State is limited to that
w/c it contracts through a special agent, duly empowered by a definite order or commission to perform some act
or charged w/ some definite purpose w/c gives rise to the claim, and not were the claim is based on acts or
omissions imputable to a public official charged w/ some administrative or technical office who can be held to the
proper responsibility in the manner laid down by the law of civil responsibility. The chauffeur of the ambulance
of the General Hospital was not such an agent.

US vs. Ceballos, GR No. 80018, February 26, 1990 (182 SCRA 644)

FACTS: Resp. was employed as barracks boy in Camp O'Donnel, and was arrested following a buy-bust operation
conducted by petitioners, who are officers of the US Air Force and special agents of the Air Force Office of Special
Investigators. Petitioners filed charges against resp. for violation of RA 6425 and testified against him at the trial.
Respondent was dismissed from employment as a result of the filing of the charge. Resp. filed a complaint for
damages against petitioners for his removal. Defendants (petitioners herein) filed the affirmative defense that
they had only done their duty in the enforcement of Phil. laws inside the American bases pursuant to the RP-US
MBA. Later, their counsel filed a motion to withdraw answer and moved for the dismissal of the complaint on the
ground that defendants were acting in their official capacity and that the complaint against them was in effect a
suit against the US w/o its consent.

HELD: Petitioners cannot be directly impleaded for acts imputable to their principal which has not given its
consent to be sued. Petitioners were acting in the exercise of their official functions when they conducted the
buy-bust operation.

Private resp. invoke Art. 2180, NCC w/c holds the govt liable if it acts through a special agent. The argument, it
would seem, is premised on the ground that since the officers are designated as "special agents," the US govt
should be liable for their torts.

Suability v. Liability. There seems to be a failure to distinguish between suability and liability. Suability depends
on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance
that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it
does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be
sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it
can, that the defendant is liable.

The said article establishes a rule of liability, not suability. The govt may be held liable under this art. only if it
first allows itself to be sued through any of the accepted forms of consent.

Moreover, the agent performing his regular functions is not a special agent even if he is so denominated, as in
the case at bar. No less important, the said provision appears to regulate only the relations of the local state w/
its inhabitants and, hence, applies only to the Phil. govt and not to foreign govts impleaded in our courts.

We reject the conclusion of the trial court that the answer filed by the special counsel of the Office of the Sheriff
Judge Advocate of Clark Air Base was a submission by the US govt to its jurisdiction. Express waiver of immunity
cannot be made by a mere counsel of the govt but must be effected through a duly-enacted statute. Neither
does such answer come under the implied forms of consent.

NOTES on the consolidated cases US v. Guinto, et al.:


Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 22 of 33

1. The doctrine of state immunity is sometimes derisively called the "royal prerogative of
dishonesty" because of the privilege it grants the state to defeat any legitimate claim
against it by simply invoking its non-suability. This implies however that the State may
be sued with its consent.

2. The consent of the state to be sued may be manifested expressly or impliedly. Express
consent may be embodied in a general law or a special law. Express consent is effected
only by the will of the legislature through the medium of a duly enacted statute. Consent
is implied when the state enters into a contract or it itself commences litigation. When
the govt. enters into a contract, it is deemed to have descended to the level of the other
contracting party and divested of its sovereign immunity from suit with its implied
consent. However, distinctions must be made between sovereign and proprietary acts.
The state may only be liable for proprietary acts. As for the filing of a complaint by the
govt., suability will result only where the govt. is claiming afffirmative relief from the
defendant.

3. There is no question that the US will be deemed to have impliedly waived its non-
suability if it has entered into a contract in its proprietary or private capacity. It is only
when the contract involves its sovereign or governmental capacity that no such waiver
may be implied.

4. In this case, by entering into an employment contract [a proprietary function] with the
respondents, the US impliedly divested itself of its sovereign immunity. The state could
therefore be sued since such contracts are commercial in nature.

(3) Incorporation of government-owned or controlled corps.

Suits against government agencies


A) Incorporated Agency
 Test of suability is found in its charter

B) Unincorporated Agency
 Test of suability depends upon the primary functions it discharges

When the government creates a corporation, it invariably provides this corporation a


separate entity and with the capacity to sue and be sued. If the government entity is
given the capacity to be sued, the suit encompasses any kind of action, including one
from tort.

In SSS v. CA, 120 SCRA 707 (1983), the property of one Socorro Cruz was foreclosed due to the
negligence of the regular employees of SSS in mistaking her account, which was updated,
with that of another Socorro Cruz, which was in arrears. The SC, in granting nominal
damages to the claimant, seemed to be saying that SSS could have invoked the defense
of Art. 2180, which it did not. The separate opinion of Makasiar enunciated this. [Note:
Consent to be sued includes actions based on quasi-delict even though committed by
regular agents and not by special agents.]

So the rule, it seems, is that a government entity can be sued for tort, but if it is, it can
invoke the defense that it acted through its regular employees, not special agents.

PNB vs. CIR, GR No. L-32667, January 31, 1978 (81 SCRA 314)

Since the PHHC had the capacity to be sued, any judgment against it could be enforced by a writ of execution,
and its funds could even be garnished.

FACTS: The United Homesite Employees and Laborers Association of the People's Homesite and Housing
Corporation (PHHC) in a case filed before the Court of Industrial Relations prevailed over PHHC. The final and
executory judgment was sought to be enforced via a writ of garnishment against PHHC's funds deposited with
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 23 of 33

PNB. PNB sought to quash the writ alleging that the funds were "public in character." The motion was denied,
hence this petition for certiorari alleging grave abuse of discretion in denying the motion.

HELD: PHHC was a government-owned entity. It has personality distinct and separate from the government. It
has all the powers of a corporation under the Corporation Law, accordingly it may sue and be sued and may be
subjected to court processes just like any other corporation. By engaging in business through the instrumentality
of a corp., the govt divests itself of its sovereign character, so as to render the corp. subject to the rules
governing private corporations. Garnishment is a proper remedy for a prevailing party to proceed against the
funds of a corporate entity even if owned or controlled by the government. It is well-settled that when the
government enters into commercial business, it abandons its sovereign capacity and is to be treated just like any
other corporation. (The case was based primarily on NASSCO v CIR, 118 Phil 782.)

Rayo vs. CFI of Bulacan, GR No. L-55273-83 (110 SCRA 456)

FACTS: Petitioners are among the many victims of the flooding caused by the simultaneous opening of the three
floodgates of Angat Dam during the height of typhoon "Kading". The complaints they filed before the CFI of
Bulacan were dismissed for the reason that the NPC in the operation of the Angat Dam is `performing a purely
governmental function,' thus it `can not be sued without the express consent of the State.' Respondent CFI
denied MRecon, hence, this petition.

HELD: The government has organized a private corporation, put money in it and has allowed it to sue and be
sued in any court under its charter [RA 6395, Sec. 3(d)]. As a government owned and controlled corporation, it
has a personality of its own, distinct and separate from that of the Government (NASSCO v CIR). Moreover, the
charter provision that the NPC can "sue and be sued in any court" is without qualification on the cause of action
and accordingly it can include a tort claim such as the one instituted by petitioners.

SSS V. CA, GR No. L-41299, February 21, 1983 (120 SCRA 707)

FACTS: The Spouses David and Socorro Cruz obtained a loan from SSS on the security of a lot located in Sto.
Rosario, Pateros, Rizal. Claiming that the couple had defaulted in the payment of the monthly amortizations, the
SSS applied for the foreclosure of the mortgage. As a result the sheriff scheduled the sale of the prop.
mortgaged and notice of the sale was published. It turned out that while the couple failed to pay some of the
amortizations on time, at the time of the application for foreclosure, their account was up to date. The SSS
mistook the couple's account for that of another one bearing the same name Socorro Cruz, although w/ different
middle name. The spouses sued SSS for damages.

HELD: (1) Having accepted the late payments of the monthly instalments, the SSS could not suddenly and w/o
prior notice to the couple apply for the extrajudicial foreclosure of their mortgage. There was negligence on the
part of the SSS when it mistook the loan account of Socorro J. Cruz for that of Socorro C. Cruz. Its attention was
called to the error but it refused to acknowledge its mistake. SSS should, thus, be held liable for nominal
damages.

(2) Under its charter [RA 1161, sec. 4(k)] the SSS can sue and be sued. So, even assuming that the SSS enjoys
immunity from suit as an entity performing governmental functions by virtue of the explicit provision of the
enabling law, it can be sued. The government must be deemed to have waived immunity in respect of the SSS,
although it does not thereby concede its liability.

Makasiar, dissenting:

xxx. The provision that it can be sued and be sued merely allows a private citizen a remedy for the enforcement
of his rights but always subject to the defense of the govt. Since under Art. 2180, NCC the State is liable for tort
only when it acts through special agents but not when it acts through officials to whom the task done properly
pertains and who alone are liable for their torts, the SSS cannot be held liable for damages in this case.

Implied consent:

(1) When the government enters into business contracts

When the government is in the performance of governmental function (jure imperii), even
if it enters into a contract with private persons, it cannot be sued without its consent.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
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Thus, in United States vs. Ruiz, 136 SCRA 487 (1985), a contract for the repair of wharves and
piers at the naval base in Subic was held to be in line with the governmental function of
the US Government and so the immunity existed.

But when the government enters into commercial contracts and descends to the status of
ordinary persons (jure gestioni), it can be sued like any other person.

In Malong vs. PNR, 138 SCRA 63 (1985), it was held that when the state organized the
Philippine National Railway, it divested itself of its sovereign capacity, and so became
liable for damages that arose from the death of one who fell from an overloaded train.

United States of America vs. Ruiz, GR No. L-35645, May 22, 1985 (136 SCRA 487)

State Immunity from Suits Extends to contracts relating to Sovereign Functions.

FACTS: In 5/72, the US advertised for bid projects involving the repair of wharves and certain works on the
shorelines at its naval base in Subic, Zambales. Eligio de Guzman & Co., Inc. (EG & Co.) submitted proposals in
connection w/ w/c it received 2 telegrams from the US govt asking it to confirm its price proposals and the name
of its bonding co. However, in 6/82, EG & Co. was informed that its proposals had been rejected and the
projects had been awarded to 3rd parties. EG & Co. brought suit in the CFI to compel the US govt to allow it to
perform the work on the projects. It also asked for a writ of prel. inj. to restrain the US govt from entering into
contract w/ 3rd parties for work on the projects. The US govt moved to dismiss the complaint, but its motion
was denied. Hence the petition for review.

HELD: It has been necessary to distinguish bet. sovereign and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis.) The result is that State immunity now extends only to acts jure
imperii. However, the resp. Judge held that by entering into a contract for the repair of wharves or shorelines
the State did not act in its governmental capacity.

A state may be said to have descended to the level of an individual and can thus be deemed to have tacitly given
its consent to be sued only when it enters into business contracts. The rule does not apply where the contract
relates to the exercise of its sovereign functions.

In this case the projects are an integral part of the naval base w/c is devoted to the defense of both the US and
the Phils., indisputably a function of the govt of the highest order; they are not utilized for, nor dedicated to,
commercial or business purpose.

Malong vs. PNR, GR No. L-49930, August 7, 1985 (138 SCRA 63)

PNR not Immune from Suit

FACTS: The petitioners sued the Philippine National Railway (PNR) for damages for the death of their son who
fell from an overloaded PNR train on October 30, 1977. However, the trial court dismissed the suit on the ground
that, under its charter as amended by PD 741, the PNR had been made a government instrumentality, and that
as such it is immune from suit.

HELD: The correct rule is that "not all government entities, whether corporate or non corporate, are immune
from suits. Immunity from suit is determined by the character of the objects for w/c the entity is organized."
When the govt enters into a commercial transaction it abandons its sovereign capacity and is to be treated like
any other corp. In this case, the state divested itself of its sovereign capacity when it organized the PNR, w/c is
no different from its predecessor, the Manila Railroad Co.

Department of Agriculture vs. NLRC, GR No. 104269, November 11, 1993 (227 SCRA 693)

Restrictive Doctrine of State immunity from suit

HELD: Not all contracts entered into by the government operate as a waiver of its non-suability; distinction must
still be made between one which is executed in the exercise of its sovereign function and another which is done
in its proprietary capacity.

In United States of America v. Ruiz (136 SCRA 487), where the questioned transaction dealt with the
improvements on the wharves in the naval installation at Subic Bay, we held:
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
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“The traditional rule of immunity exempts a State from being sued in the courts of another State
without its consent or waiver. This rule is a necessary consequence of the principle of
independence and equality of States. However, the rules of International Law are not petrified;
they are constantly developing and evolving. And because the activities of states have
multiplied, it has been necessary to distinguish them - between sovereign and governmental acts
(jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that
State immunity now extends only to acts jure imperii. The restrictive application of State
immunity is now the rule in the United States, the United Kingdom and other states in Western
Europe.

The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs.
Stated differently, a State may be said to have descended to the level of an individual and can
thus be deemed to have tacitly given its consent to be sued only when it enters into business
contracts. It does not apply where the contracts relate to the exercise of its sovereign functions.
In this case the projects are an integral part of the naval base which is devoted to the defense of
both the United States and the Philippines, indisputably a function of the government of the
highest order; they are not utilized for nor dedicated to commercial or business purposes.”

(2) When it would be inequitable for the state to invoke its immunity, or when it takes
private property for public use or purpose.

In Amigable vs. Cuenca, (43 SCRA 360), Alfonso vs. Pasay and Ministerio vs. CFI, 40 SCRA 464, the SC
allowed suit for the recovery of possession of titled lands previously (decades) taken over
by the government for expansion of roads without just compensation and the proper
expropriation proceedings. In so holding, it said that it would be unjust for the
government to invoke immunity after it has itself violated the rights of the parties-claim-
ant by taking over the possession of the lands.

In Santiago vs. Republic, 87 SCRA 294 (1978), the SC allowed the revocation of a deed of
donation made to the Bureau of Plant Industry for its failure to comply with the condition
that it should install a lightning and water system on the property and build an office
building with parking lot before a certain date. It would be unfair, said the court, for the
government to invoke its immunity after gratuitously receiving property and not fulfilling
its conditions.

The case of Commissioner of Public Highways vs. Burgos, 96 SCRA 831, simply implemented the
ruling in Amigable vs. Cuenca, 43 SCRA 360. In the earlier case, the question raised was the
right of the plaintiff to sue the govt. for recovery of the value of her property which had
been converted into public streets without payment to her of just compensation. Although
it was shown that she had not previously filed her claim with the Auditor General as
normally required, the SC decided in her favor. The SC held that the doctrine of
governmental immunity from suit cannot serve as an instrument for perpetrating an
injustice on a citizen. In this instant case, the SC fixed just compensation based on the
market value of the land at the time of the taking.

Santiago vs. Republic, GR No. L-48214, December 19, 1978 (87 SCRA 284)

Consent to be Sued Presumed where Allowance of Immunity Would be Inequitable

FACTS: Petitioner filed an action in the CFI of Zamboanga City for the revocation of a deed of donation w/c he
and his wife had made to the Bureau of Plant Industry. He claimed that the donee failed to comply w/ the
condition of the donation that the donee should install a lighting and water system on the prop. and build an
office building w/ parking lot thereon not later than 12/7/74. The trial court dismissed the action on the ground
of sovereign immunity.

HELD: Ordinarily, a suit of this nature cannot prosper. It would, however, be manifestly unfair for the govt, as
donee, w/c is alleged to have violated the condition under w/c it received gratuitously certain prop., to invoke its
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
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immunity. Since it would be against equity and justice to allow such a defense in this case, consent to be sued
could be presumed.

Gregorio R. Vigilar, et al. vs. Arnulfo D. Aquino, G.R. No. 180388, January 18, 2011.

HELD: The doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an
injustice to a citizen. It would be the apex of injustice and highly inequitable to defeat respondent’s right to be
duly compensated for actual work performed and services rendered, where both the government and the public
have for years received and accepted benefits from the project and reaped the fruits of respondent’s honest toil
and labor. The rule, in any case, is not absolute for it does not say that the state may not be sued under any
circumstance.

Commissioner of Public Highways vs. Burgos, GR No. L-36706, March 31, 1980 (96 SCRA 831)

FACTS: Private respondent Victoria Amigable was the owner of a parcel of land in Cebu City; sometime in 1924
the Government took this land for road-right-of-way purpose. In 1959, she filed in the CFI of Cebu a complaint
for recovery of ownership and possession plus damages. This complaint was dismissed on the grounds of
estoppel and the statute of limitations and also on the ground of non-suability of the Government. The SC on
appeal reversed the CFI and remanded the case for the purpose of determining the compensation to be paid
Amigable, directing that to determine just compensation for the land, the basis should be the price or value
thereof at the time of the taking. Respondent judge, however did not heed the directive but instead took into
account supervening inflation of the currency and adjusted the value in accordance with the prevailing peso-
dollar exchange rate. His basis was Article 1250 of the Civil Code. The Sol-Gen appealed the decision.

HELD: Art. 1250 applies only to cases where a contract or agreement is involved. It does not apply where the
obligation to pay arises from law, independent of contract. The taking of private property by the Government in
the exercise of its power of eminent domain does not give rise to a contractual obligation. The value of the
property at the time the govt took possession of the land in question, not the increased value resulting from the
passage of time, w/c invariably brings unearned increment to real estate, represents the value to be paid as just
compensation for the prop. taken.

EPG Construction Co. vs. Vigilar, GR No. 131544, March 16, 2001 (354 SCRA 566)

HELD: To our mind, it would be the apex of injustice and highly inequitable for us to defeat petitioners-
contractors’ right to be duly compensated for actual work performed and services rendered, where both the
government and the public have, for years, received and accepted benefits from said housing project and reaped
the fruits of petitioners-contractors’ honest toil and labor.

Incidentally, respondent likewise argues that the State may not be sued in the instant case, invoking the
constitutional doctrine of Non-suability of the State, otherwise known as the Royal Prerogative of Dishonesty.

Respondent’s argument is misplaced inasmuch as the principle of State immunity finds no application in the case
before us.

Under these circumstances, respondent may not validly invoke the Royal Prerogative of Dishonesty and
conveniently hide under the State’s cloak of invincibility against suit, considering that this principle yields to
certain settled exceptions. True enough, the rule, in any case, is not absolute for it does not say that the state
may not be sued under any circumstances.

Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which shields the state from suit,
reiterating our decree in the landmark case of Ministerio v. CFI of Cebu that “the doctrine of governmental
immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen.” It is just as
important, if not more so, that there be fidelity to legal norms on the part of officialdom if the rule of law were to
be maintained.

Although the Amigable and Ministerio cases generously tackled the issue of the State’s immunity from suit vis a
vis the payment of just compensation for expropriated property, this Court nonetheless finds the doctrine
enunciated in the aforementioned cases applicable to the instant controversy, considering that the ends of justice
would be subverted if we were to uphold, in this particular instance, the State’s immunity from suit.

To be sure, this Court – as the staunch guardian of the citizens’ rights and welfare – cannot sanction an injustice
so patent on its face, and allow itself to be an instrument in the perpetration thereof. Justice and equity sternly
demand that the State’s cloak of invincibility against suit be shred in this particular instance, and that petitioners-
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
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contractors be duly compensated – on the basis of quantum meruit – for construction done on the public works
housing project.

(3) If the Govt. files a complaint, defendant may file a counterclaim against it

In Froilan vs. Oriental Pan Shipping, GR L-6060 (Sept. 30, 1950), the SC held that when the State
itself files a complaint, the defendant is entitled to file a counterclaim against it. This is
based on equitable grounds. The SC ruled that the govt. impliedly allowed itself to be
sued when it filed a complaint in intervention for the purpose of asserting a claim for
affirmative relief against the plaintiff, to wit, recovery of a vessel.

Froilan vs. Oriental Pan Shipping, GR No. L-11897, October 31, 1964 (12 SCRA 276)

FACTS: Froilan purchased from Shipping Commission a vessel for P200,000 paying P50 T downpayment. A CM
was executed to secure the payment of the balance. For various reasons including non-payment of installments,
the Commission took possession of the vessel and considered the contract of sale cancelled. The Commission
chartered and delivered said vessel to Pan Oriental. Froilan appealed from the action of the Commission and he
was restored to all the rights under the original contract. However, Pan Oriental retained the possession of the
vessel. Froilan filed a complaint to recover possession of the vessel. A writ of replevin was issued. The Govt
intervened alleging that Froilan failed to pay the balance to the Commission; that the intervenor was entitled to
the possession of said vessel under the terms of the original contract or in order for it to effect the extrajudicial
foreclosure of the mortgage. Pan Oriental answered the complaint in intervention praying that if RP succeeded in
obtaining the possession of the vessel, to comply w/ its obligation of delivering it to Pan Oriental pursuant to their
contract of bareboat charter w/ option to purchase. Complaint in intervention was dismissed upon Froilan's
payment of his account to the RP. RP filed a motion to dismiss the counterclaim w/c Pan Oriental had filed
against it in view of the court's order dismissing the complaint in intervention. Counterclaim of Pan O. against RP
was dismissed. Hence, this appeal. RP raised, among others, as ground for the dismissal of Pan O's
counterclaim, the State's immunity from suit.

HELD: By filing its complaint in intervention, the govt in effect waived its right of non-suability. Stated
otherwise, by taking the initiative in an action against a private party, the State surrendered its privileged position
and came down to the level of the def. The latter automatically acquires, w/in certain limits, the right to set up
whatever claims and other defenses he might have against the State.

(D) SCOPE OF CONSENT

(1) Under Act No.3083

Sec. 1. Subject to the provisions of this Act, the Government of the Philippines
hereby consents and submits to be sued upon any moneyed claim involving liability
arising from contract, express or implied, which could serve as a basis of civil action
between private parties.

When a money judgment is given against the government, the ordinary rule for execution would not apply, for
the consent of the government to be sued is only up to the point of judgment. If it does not pay, it cannot be
compelled to pay by attachment or otherwise.

The procedure is for one to furnish the Office of the President with the decision so it could include the amount in
the budget for the next year as the basis for appropriation (since there can be no disbursement of public funds
except in pursuance of law).

If the judge nonetheless issues a writ of execution against government funds or property, no ordinary civil action
can be filed against the judge, unless there is a showing of malice. But, a reinstatement of the funds to
government accounts and refund by the private party can be ordered.9

Commissioner of Public Highways vs. San Diego, GR No. L-30098, February 18, 1970 (31 SCRA 616)

FACTS: On 11/20/40, the Govt filed a complaint for eminent domain (ED) in the CFI for the expropriation of land
belonging to N.T. Hashim needed to construct EDSA. On 11/25/40, the Govt took possession of the prop. upon

9
Commissioner of Public Highways vs. San Diego, 31 SCRA 616 (1970), reiterating the case of Alsua v Johnson.
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1st Semester, P.U.P. College of Law
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deposit w/ the city treasurer of the sum fixed by the court as the provisional value of all the lots needed to
construct the road. In 1958, the estate of Hashim, through its Judicial Administrator, Tomas Hashim, filed a
money claim w/ the QC Engr's Office, w/c was alleged to be the FMV of the prop. in question. Nothing having
come out of the claim, the estate filed a complaint for the recovery of the FMV against the Bureau of Public
Highways (BPH.) The parties entered into a compromise agreement w/c was approved by the CFI. The estate
filed a motion for the issuance of a writ of execution, w/c the court granted. A notice of garnishment, together
w/ a writ of execution was served on PNB, notifying it that levy was thereby made upon the funds of petitioner
Bureau and the Auditor General on deposit. Resp. Coruna, in his capacity as Chief, Documentation Staff of PNB's
Legal Dept., authorized the issuance of a cashier's check of the bank in the amount of the judgment/ compromise
agreement. Petitioners contend that PNB acted precipitately in having delivered the amount w/o affording
petitioner Bureau a reasonable time to contest the validity of the garnishment. It demands that the bank credit
the petitioner's account w/ the amount garnished.

HELD: Although the govt, as plaintiff in expropriation proceedings, submits itself to the jurisdiction of the Court
and thereby waives its immunity from suit, the judgement that is thus rendered requiring its payment of the
award determined as just compensation for the condemned prop. as a condition precedent to the transfer to the
title thereto in its favor, cannot be realized upon execution. It is incumbent upon the legislature to appropriate
any additional amount, over and above the provisional deposit, that may be necessary to pay the award
determined in the judgment, since the Govt cannot keep the land and dishonor the judgment.

The universal rule that where the State gives its consent to be sued by private parties either by general or special
law, it may limit claimant's claim "only up to the completion of proceedings anterior to the stage of execution"
and that the power of the Courts end when the judgment is rendered, since govt funds and properties may not
be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations
of public policy. Disbursements of public funds must be covered by the corresponding appropriations as required
by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted
by the diversion of public funds from their legitimate and specific objects, as appropriated by law.

(2) Under a charter

When consent to be sued is provided by the charter, the consent does not stop with the
rendition, but goes up to the satisfaction of the judgment.

In PNB v CIR, 81 SCRA 314 (1978), the SC held that since the PHHC had the capacity to be
sued, any judgment against it could be enforced by a writ of execution, and its funds
could even be garnished.

(E) MEASURE OF RECOVERY

When property has been unlawfully taken by the government so that it is now compelled
to make payment, the measure of recovery is the fair market value of the property at the
time of taking (Ministerio v CFI, 40 SCRA 464).

The value of the peso in relation to the dollar at the time of taking cannot be considered.
For Art 1250 of the Civil Code concerning supervening inflation has no application in
eminent domain cases, being applicable only to contractual obligations [Commissioner of
Public Highways v Burgos, 96 SCRA 831 (1980)]. Ultimately, the face value of the peso then is
the amount to be paid now.

(F) SOVEREIGN OR DIPLOMATIC IMMUNITY

Minucher vs. CA, GR No. 142396, February 11, 2003 (397 SCRA 244)

HELD: The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by
the time of its ratification on 18 April 1961, its rules of law had long become stable. X x x Traditionally, the
exercise of diplomatic intercourse among states was undertaken by the head of state himself, as being the
preeminent embodiment of the state he represented, and the foreign secretary, the official usually entrusted with
the external affairs of the state. Where a state would wish to have a more prominent diplomatic presence in the
receiving state, it would then send to the latter a diplomatic mission. Conformably with the Vienna Convention,
the functions of the diplomatic mission involve, by and large, the representation of the interests of the sending
state and promoting friendly relations with the receiving state.
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1st Semester, P.U.P. College of Law
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The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios
accredited to the heads of state, (b) envoys, ministers or internuncios accredited to the head of states; and (c)
charges d' affairs accredited to the ministers of foreign affairs. Comprising the "staff of the (diplomatic) mission"
are the diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions,
as well as members of the diplomatic staff, excluding the members of the administrative, technical and service
staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations
provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding
that the same be restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested
with blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the
heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all
others. It might bear stressing that even consuls, who represent their respective states in concerns of commerce
and navigation and perform certain administrative and notarial duties, such as the issuance of passports and
visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic
immunities and privileges accorded diplomats, mainly for the reason that they are not charged with the duty of
representing their states in political matters. Indeed, the main yardstick in ascertaining whether a person is a
diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature.

X x x An attaché belongs to a category of officers in the diplomatic establishment who may be in charge of its
cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to certain
ministries or departments of the government, other than the foreign ministry or department, who are detailed by
their respective ministries or departments with the embassies such as the military, naval, air, commercial,
agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his duties and
are administratively under him, but their main function is to observe, analyze and interpret trends and
developments in their respective fields in the host country and submit reports to their own ministries or
departments in the home government. These officials are not generally regarded as members of the diplomatic
mission, nor are they normally designated as having diplomatic rank.

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino (48 SCRA 242), the Court has recognized that, in such
matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of
immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine
government, specifically its Department of Foreign Affairs, to be most circumspect, that should particularly be no
less than compelling, in its post litem motam issuances. It might be recalled that the privilege is not an immunity
from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity
from the exercise of territorial jurisdiction. X x x

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that,
indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of
suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that
Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint,
the present controversy could then be resolved under the related doctrine of State Immunity from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of the head of state, or his representative,
but also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent.
Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not
accorded for the benefit of an individual but for the State, in whose service he is, under the maxim — par in
parem, non habet imperium — that all states are sovereign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the judgment against an official would require the state itself
to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the
damages decreed against him, the suit must be regarded as being against the state itself, although it has not
been formally impleaded.

In United States of America vs. Guinto (182 SCRA 644), involving officers of the United States Air Force and
special officers of the Air Force Office of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled —

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 30 of 33

performed by them in the discharge of their duties. . . . . It cannot for a moment be imagined
that they were acting in their private or unofficial capacity when they apprehended and later
testified against the complainant. It follows that for discharging their duties as agents of the
United States, they cannot be directly impleaded for acts imputable to their principal, which has
not given its consent to be sued. . . . As they have acted on behalf of the government, and within
the scope of their authority, it is that government, and not the petitioners personally, [who were]
responsible for their acts."

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals (191 SCRA 713)
elaborates:

"It is a different matter where the public official is made to account in his capacity as such for
acts contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice
Zaldivar in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA
368): 'Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the State from suit. In the
same tenor, it has been said that an action at law or suit in equity against a State officer or the
director of a State department on the ground that, while claiming to act for the State, he violates
or invades the personal and property rights of the plaintiff, under an unconstitutional act or
under an assumption of authority which he does not have, is not a suit against the State within
the constitutional provision that the State may not be sued without its consent. The rationale for
this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating
an injustice.
"xxx xxx xxx
"The doctrine of immunity from suit will not apply and may not be invoked where the public
official is being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-settled principle of law that a
public official may be liable in his personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith or beyond the scope of his authority and
jurisdiction."

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be
established that he is acting within the directives of the sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf both involve officers
and personnel of the United States, stationed within Philippine territory, under the RP-US Military Bases
Agreement. While evidence is wanting to show any similar agreement between the governments of the
Philippines and of the United States (for the latter to send its agents and to conduct surveillance and related
activities of suspected drug dealers in the Philippines), the consent or imprimatur of the Philippine government to
the activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts heretofore
elsewhere mentioned. The official exchanges of communication between agencies of the government of the two
countries, certifications from officials of both the Philippine Department of Foreign Affairs and the United States
Embassy, as well as the participation of members of the Philippine Narcotics Command in the "buy-bust
operation" conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the
"diplomatic status" of the latter but they give enough indication that the Philippine government has given its
imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug
Enforcement Agency. The job description of Scalzo has tasked him to conduct surveillance on suspected drug
suppliers and, after having ascertained the target, to inform local law enforcers who would then be expected to
make the arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the
buy-bust operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo hardly
can be said to have acted beyond the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug
Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the
problem on the drug traffic, is entitled to the defense of state immunity from suit.

Liang vs. People, G.R. No. 125865, January 28, 2000

FACTS: Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 31 of 33

Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as
Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After
fixing petitioner’s bail at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security
Officer of ADB. The next day, the MeTC judge received an "office of protocol" from the Department of Foreign
Affairs (DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the Agreement
between the ADB and the Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement)
in the country. Based on the said protocol communication that petitioner is immune from suit, the MeTC judge
without notice to the prosecution dismissed the two criminal cases.

ISSUE: WON the action of the METC judge was proper?

HELD: NO. Courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is
covered by any immunity. The DFA’s determination that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In receiving ex-parte the DFA’s advice and in motu proprio
dismissing the two criminal cases without notice to the prosecution, the latter’s right to due process was violated.
It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed
inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution
evidentiary basis that has yet to be presented at the proper time. At any rate, it has been ruled that the mere
invocation of the immunity clause does not ipso facto result in the dropping of the charges.

Slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the
commission of a crime, such as defamation, in the name of official duty. The imputation of theft is ultra vires and
cannot be part of official functions. It is well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with malice or in bad faith or
beyond the scope of his authority or jurisdiction.

Under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys
immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official
functions. As already mentioned above, the commission of a crime is not part of official duty.

The Holy See vs. Rosario, GR No. 101949, December 1, 1994 (238 SCRA 524)

QUESTION: How to plead Diplomatic Immunity before our courts of justice?

HELD: In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that
said defendant is entitled to immunity.

In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA
130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In
World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a
telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign
Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at
Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion"
in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court
to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioner's claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus
Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases).
In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their
own determination as to the nature of the acts and transactions involved.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government
since 1957. This appears to be the universal practice in international relations.
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 32 of 33

Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are deemed
incorporated as part of the law of the land as a condition and consequence of our admission in the society of
nations (United States of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to
the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of
another sovereign. According to the newer or 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
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law
194 [1984]).

This Court has considered the following transactions by a foreign state with private parties as acts jure imperii:
(1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84
Phil. 312 [1949]); (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station
(United States of America v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders
v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with private parties as
acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American
servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the
bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto,
182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general public is
undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary function, the United States government impliedly
divested itself of its sovereign immunity from suit.

In the absence of legislation defining what activities and transactions shall be considered "commercial" and as
constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade,
the particular act or transaction must then be tested by its nature. 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.

As held in United States of America v. Guinto, (supra):

"There is no question that the United States of America, like any other state, will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its proprietary or private
capacity. It is only when the contract involves its sovereign or governmental capacity that no
such waiver may be implied."

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business,
surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the
acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for
the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said
claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal
Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for
the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in
the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the
territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
Page 33 of 33

mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same
because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the
donation. The fact that squatters have occupied and are still occupying the lot, and that they stubbornly refuse to
leave the premises, has been admitted by private respondent in its complaint.

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the
pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this
case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As
the department tasked with the conduct of the Philippines' foreign relations (Administrative Code of 1987, Book
IV, Title I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and officially certified
that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt
from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy
in this country. The determination of the executive arm of government that a state or instrumentality is entitled
to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the
executive arm of the government in conducting the country's foreign relations (World Health Organization v.
Aquino, 48 SCRA 242 [1972]). As in International Catholic Migration Commission and in World Health
Organization, we abide by the certification of the Department of Foreign Affairs.

Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can
ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against
the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of
its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the
relations between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against
Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once
the Philippine government decides to espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:

"By taking up the case of one of its subjects and by reporting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to
ensure, in the person of its subjects, respect for the rules of international law (The Mavrommatis
Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
HAND OUT No. 3 – PRINCIPLES & POLICIES
By: Atty. Rene Callanta, Jr.
Constitutional Law I, 1st Semester, SY 2014-2015
P.U.P. College of Law

PRINCIPLES AND POLICIES


OF THE PHILIPPINE GOVERNMENT
PREAMBLE

We, the sovereign Filipino people, imploring the aid of Almighty God, in
order to build a just and humane society and establish a government
that shall embody our ideals and aspirations, promote the common
good, conserve and develop our patrimony, and secure to ourselves and
our posterity the blessings of independence and democracy under the
rule of law and a regime of truth, justice, freedom, love, equality, and
peace, do ordain and promulgate this Constitution.

• While the 1935 Constitution started with "The Filipino people ...", the 1973 and 1987
Constitutions begin the preamble with "We, the sovereign Filipino people ..." The
change from third person point of view to a first person point of view emphasizes that
the Filipinos themselves are the ones establishing the Constitution. The third person
presupposes someone talking about the Filipino people, and yet that someone is
himself a Filipino.

• While the 1935 and 1973 Constitutions referred to the Divine Providence, the 1987
Constitution refers Almighty God, which is more personal.

• A preamble has two (2) functions: (1) identify the authors of the Constitution, and
(2) state the general principles upon which the Constitution is founded. (Sets the tone
for the succeeding provisions)

3 IMPORTANT POINTS ABOUT THE PREAMBLE:


• Does not confer rights nor impose duties
• Not a source of power or right for any department of government
• It only sets down the origin, scope, and purpose of the constitution, as such, it is
useful as an aid in ascertaining the meaning of ambiguous provisions in the body of
the constitution

A. PRINCIPLES

• What is a Principle in the Constitution? It is a standard to be observed because it is


required by justice or fairness or other dimensions of morality

1. SOVEREIGNTY OF ITS PEOPLE AND REPUBLICANISM

Art. II, Sec. 1. The Philippines is a democratic and republican State.


Sovereignty resides in the people and all government authority
emanates from them.

Art. V. SUFFRAGE.

Sec. 1. Suffrage may be exercised by all citizens of the Philippines not


otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.

Sec. 2. The Congress shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting by qualified
Filipinos abroad.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 2 of 35

The Congress shall also design a procedure for the disabled and the
illiterates to vote without the assistance of other persons. Until then,
they shall be allowed to vote under existing laws and such rules as the
Commission on Elections may promulgate to protect the secrecy of the
ballot.

Art. VI, Sec. 1. The legislative power shall be vested in the Congress of
the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by provision
on initiative and referendum.

• Under this principle, the Philippines is a democratic state that is, a government for, of,
and by the people. But it is not a pure democracy. Thus, while it is true that the
people are the possessors of sovereign power, it is equally the case that they cannot
exercise the powers of government directly, but only through the medium of their duly
elected representatives.

Their participation in government consists of :


1) Exercising their right to Suffrage - electing the officials to whom they delegate the right of
government.
2) Voting in a Plebiscite:
a) Ratifying the Constitution;
b) Approving any amendment thereto;
c) With respect to local matters, approving any changes in boundaries, mergers,
divisions, and even abolition of local offices;
d) Creating metropolitan authorities, and
e) Creating autonomous regions
3) Joining and voting in a Initiative and referendum - enacting or proposing laws, local or
national, in a referendum.
4) Exercising their right Recall local elective officials (Under the Local Government Code.)

Features of Republicanism:
1. It is a govt of laws and not of men;
2. There is periodic holding of elections;
3. There is observance of principle of separation of powers and of checks and balances;
4. There is observance of the role that the legislature cannot pass or enact irrepealable laws.

• Ours is a government of Law and not of man.1

2. ADHERENCE TO INTERNATIONAL LAW

Art. II, Sec. 2. The Philippines renounces war as an instrument of


national policy, adopt 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.

• "Adopts the generally accepted principles of international law" means the Philippines
uses the incorporation theory (Doctrine of Incorporation). Without need of
statute, these generally accepted principles of international law become part of the
Philippine body of laws from the municipal point of view.

• "Adherence to the principles of international law" was adopted from the Kellogg Brian
Pact.

Art. II, Sec. 7. The State shall pursue an independent foreign policy. In
its relations with other states, the paramount consideration shall be

1
Villavicencio vs. Lukban, 39 Phil 778
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 3 of 35

national sovereignty, territorial integrity, national interest, and the


right to self- determination.

Art. II, Sec. 8. The Philippines, consistent with the national interest,
adopts and pursues a policy of freedom from nuclear weapons in its
territory.

• "Consistent with national interest" admits of two interpretations. One view holds
that the Constitution itself has decided to have no nuclear interest as the policy of
the State. The other view holds that, as shown by the deliberations of the Constitu-
tional Commission, the phrase should be read as "subject to national interest" which
means that the issue of whether to allow the stock-piling of nuclear weapons
depends on Congressional policy.

• It is the intent and sense of the Constitutional Commission that the phrase
"consistent with national interest" xxx also means "subject to the national interest."2

Art. XVIII, Sec. 4. All existing treaties or international agreements which


have not been ratified shall not be renewed or extended without the
concurrence of at least 2/3 of all the members of the Senate.

Art. XVIII, Sec. 25. After the expiration in 1991 of the Agreement
between Republic of the Philippines and United States of America
concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress requires, ratified by a majority of
votes cast by the people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting parties.

• The reason why the agreement must be recognized as a treaty by the other
contracting state is so it is approved by its own Senate, and not just by its President
(executive agreement), thus, committing its legislature to honor the agreement and
preventing it from refusing appropriations therefore.

BAYAN vs. Zamora, G.R. No. 138570, October 10, 2000

Q. Who has the power to ratify a treaty?

HELD: In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the
ratification.

Q. Which provision of the Constitution applies with regard to the exercise by the Senate of its
constitutional power to concur with the Visiting Forces Agreement (VFA)?

HELD: The 1987 Philippine contains two provisions requiring the concurrence of the Senate on treaties or
international agreements.

Section 21, Article VII x x x reads:

“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.”

Section 25, Article XVIII, provides:

“After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.”

2
Joaquin Bernas, The Constitution of the Republic of the Philippines A Commentary, vol. II, 1988 ed.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 4 of 35

Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at
least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international
agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treaties or
international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not
limited to, extradition or tax treaties or those economic in nature. All treaties or international agreements entered
into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of
foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is
only one of the requisites to render compliance with the constitutional requirements and to consider the agreement
binding on the Philippines. Section 25, Article XVIII further requires that “foreign military bases, troops, or facilities”
may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of
the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by
the other contracting State.

It is our considered view that both constitutional provisions, far from contradicting each other, actually share some
common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed
prohibitory in mandate and character. In particular, Section 21 opens with the clause “No treaty x x x,” and Section
25 contains the phrase “shall not be allowed.” Additionally, in both instances, the concurrence of the Senate is
indispensable to render the treaty or international agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the
Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section
21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting
the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the
rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessels
and aircraft, importation and exportation of equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops,
or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of
Section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the
number of votes required to obtain the valid concurrence of the Senate x x x.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one.
Lex specialis derogat generali.

Q. Were the requirements of Sec. 25, Art. XVIII of the 1987 Constitution complied with when the
Senate gave its concurrence to the VFA?

HELD: Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in
by the Senate and, when so required by Congress, ratified by a majority of the votes cast by the people in a national
referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by
the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the
general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the
provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be
valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other
hand, Section 25, Article XVIII simply provides that the treaty be “duly concurred in by the Senate.”

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly
required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true
that Section 25, Article XVIII requires, among other things, that the treaty - the VFA, in the instant case - be “duly
concurred in by the Senate,” it is very true however that said provision must be related and viewed in light of the
clear mandate embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a
treaty, or international agreement, be made by a two-thirds vote of all the members of the Senate. Indeed, Section
25, Article XVIII must not be treated in isolation to Section 21, Article VII.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 5 of 35

As noted, the “concurrence requirement” under Section 25, Article XVIII must be construed in relation to the
provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated
under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to
concur with the treaty - the VFA in the instant case.

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass
upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America.
This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts
or acknowledges the agreement as a treaty. To require the other contracting state, The United States of America in
this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord
strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning
except where technical terms are employed, in which case the significance thus attached to them prevails. Its
language should be understood in the sense they have in common use.

Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because,
under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses
the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the
United States government has fully committed to living up to the terms of the VFA. For as long as the United States
of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under
the treaty, there is indeed marked compliance with the mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should
be taken as a clear and unequivocal expression of our nation's consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and responsibilities embodied thereunder.

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the
Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of the agreement.

Arthur D. Lim vs. Executive Secretary, G.R. No. 151445, April 11, 2002

Q. Are the “Balikatan” exercises covered by the Visiting Forces Agreement?

Held: The holding of “Balikatan 02-1” must be studied in the framework of the treaty antecedents to which the
Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been
described as the “core” of the defense relationship between the Philippines and its traditional ally, the United States.
Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its
American counterparts; the “Balikatan” is the largest such training exercise directly supporting the MDT’s objectives.
It is this treaty to which the VFA adverts and the obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-
Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that
on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA (BAYAN v. Zamora, 342
SCRA 449 [2000]). The VFA provides the “regulatory mechanism” by which “United States military and civilian
personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine
Government.” It contains provisions relative to entry and departure of American personnel, driving and vehicle
registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as
the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite
the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and
Philippine military forces in the event of an attack by a common foe.

The first question that should be addressed is whether “Balikatan 02-1” is covered by the Visiting Forces Agreement.
To resolve this, it is necessary to refer to the VFA itself. Not much help can be had therefrom, unfortunately, since
the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage,
on an impermanent basis, in “activities,” the exact meaning of which was left undefined. The expression is
ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The
sole encumbrance placed on its definition is couched in the negative, in that United States personnel must “abstain
from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity.” All
other activities, in other words, are fair game.

We are not completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos
governing interpretations of international agreements, state x x x.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 6 of 35

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is
presumed to verbalize the parties’ intentions. The Convention likewise dictates what may be used as aids to deduce
the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. X x x

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word “activities”
arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military.
As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the
nation’s marine resources, sea search-and-destroy operations to assist vessels in distress, disaster relief operations,
civic action projects such as the building of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that
“Balikatan 02-1,” a “mutual anti-terrorism advising, assisting and training exercise,” falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense
Treaty and the VFA support the conclusion that combat-related activities – as opposed to combat itself – such as the
one subject of the instant petition, are indeed authorized.

3. SUPREMACY OF CIVILIAN AUTHORITY

Art. II, Sec. 3. Civilian authority is at all times, supreme over the
military. The Armed Forces of the Philippines is the protector of the
people and the State. Its goal is to secure the sovereignty of the State
and the integrity of that national territory.

Art. VII, Sec. 18. The President shall be the Commander-in- Chief of all
armed forces of the Philippines, x x x

Art. XVI, Sec. 4. The Armed Forces of the Philippines shall be composed
of a citizen armed force which shall undergo military training and service,
as may be provided by law. It shall keep a regular force necessary for
the security of the State.

Art. XVI, Sec. 5. (1) All members of the Armed Forces of the
Philippines shall take an oath or affirmation to uphold and defend the
Constitution.

(2) The State shall strengthen the patriotic spirit and nationalist
consciousness of the military, and respect for people's rights in the
performance of their duty.

(3) Professionalism in the Armed Forces of the Philippines and adequate


remuneration and benefits of its members shall be a prime concern of the
State. The Armed Forces of the Philippines shall be insulated from
partisan politics.

No member of the military shall engage directly or indirectly in any


partisan political activity.

(4) No members of the Armed Forces of the Philippines in the active


service shall, at any time, be appointed or designated in any capacity to a
civilian position in the Government, including government-owned or
controlled corporations or any of their subsidiaries.

(5) Laws on retirement of military officers shall not allow extension of


their service.

(6) The officers and men of the regular force of the Armed Forces of the
Philippines shall be recruited proportionately from all provinces and cities
as far as practicable.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 7 of 35

(7) The tour of duty of the Chief of Staff of the Armed Forces of the
Philippines shall not exceed three years. However, in times of war or
other national emergency declared by the Congress, the President may
extend such tour of duty.

Sec. 6. The State shall establish and maintain one police force, which
shall be national in scope and civilian in character, to be administered and
controlled by a national police commission. The authority of local
executives over the police units in their jurisdiction shall be provided by
law.

The supremacy of civilian rule over the military is ensured by, (1) the installation of the
President, the highest civilian authority, as the commander-in-chief of the military, (2) the
requirement that members of the AFP swear to uphold and defend the Constitution, which is
the fundamental law of the civil government, (3) the professionalization of the service and
the strengthening of the patriotism and nationalism, and respect for human rights, of the
military, (4) insulation of the AFP from partisan politics, (5) prohibition against the
appointment to a civil position, (6) compulsory retirement of officers (no over- staying of
officers), so as to avoid propagation of power), (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, (8) requirement of professional recruitment, so
as to avoid any regional clique from forming within the AFP, as well as (9) the establishment
of a police force that is not only civilian character but also under the local executives.

IBP vs. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81

FACTS: The President issued Letter of Instruction (LOI) ordering the deployment of members of the Philippine
Marines in the metropolis to conduct joint visibility patrols with members of the Philippine National Police in various
shopping malls. Will this not violate the civilian supremacy clause under Section 3, Article II of the Constitution?
Will this not amount to an "insidious incursion" of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution?

HELD: The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of
the marines in this case constitutes permissible use of military assets for civilian law enforcement. x x x. The limited
participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and
bounds of the Marines' authority. It is noteworthy that the local police forces are the ones in charge of the visibility
patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols. Under the LOI, the police forces are tasked to brief or
orient the soldiers on police patrol procedures. It is their responsibility to direct and manage the deployment of the
Marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to
these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian
authority.

Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police
force. Neither does it amount to an “insidious incursion” of the military in the task of law enforcement in violation of
Section 5[4], Article XVI of the Constitution.

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged
involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited
provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian
institution, the PNP, and not with the military. Such being the case, it does not matter whether the AFP Chief
actually participates in the Task Force Tulungan since he does not exercise any authority or control over the same.
Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to a
civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than assistance required in conducting the
patrols. As such, there can be no “insidious incursion” of the military in civilian affairs nor can there be a violation of
the civilian supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction.
The Philippine experience reveals that it is not averse to requesting the assistance of the military in the
implementation and execution of certain traditionally “civil” functions. x x x [S]ome of the multifarious activities
wherein military aid has been rendered, exemplifying the activities that bring both the civilian and the military
together in a relationship of cooperation, are:
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 8 of 35

1. Elections;
2. Administration of the Philippine National Red Cross;
3. Relief and rescue operations during calamities and disasters;
4. Amateur sports promotion and development;
5. Development of the culture and the arts;
6. Conservation of natural resources;
7. Implementation of the agrarian reform program;
8. Enforcement of customs laws;
9. Composite civilian-military law enforcement activities;
10. Conduct of licensure examinations;
11. Conduct of nationwide tests for elementary and high school students;
12. Anti-drug enforcement activities;
13. Sanitary inspections;
14. Conduct of census work;
15. Administration of the Civil Aeronautics Board;
16. Assistance in installation of weather forecasting devices;
17. Peace and order policy formulation in local government units.

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive
practice, long pursued to the knowledge of Congress and, yet, never before questioned. What we have here is
mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy.

4. GOVERNMENT AS PROTECTOR OF THE PEOPLE AND PEOPLE AS DEFENDERS OF


THE STATE

Art. II Sec. 4. The prime duty of the Government is to serve and protect
the people. The Government may call upon the people to defend the
State and, in the fulfilment thereof, all citizens may be required under
conditions provided by law, to render personal, military or civil service.

Art. II, Sec. 5. The maintenance of peace and order, the protection of
life, liberty, and property, and the promotion of the general welfare, are
essential for the enjoyment by all the people of the blessing of
democracy.

• Note the emphasis on the government as servant of the people, rather than vice-
versa.

• Note also that the people may by law are required to render "personal" (not proxy)
military or civil service.

5. SEPARATION OF CHURCH AND STATE

Art. II, Sec. 6. The separation of the Church and State shall be
inviolable.

Art. III, Sec. 5. No law shall be made respecting an establishment of


religion, or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required
for the exercise of civil or political rights.

Art. IX, C, Sec. 2(5) xxx Religious denominations and sects shall not
be registered (as a political party, organization, or coalition by the
COMELEC).

Art. VI, Sec. 5(2) The party-list representatives shall constitute twenty
per centum of the total number of representatives including those under
the party list. For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to the party-list
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 9 of 35

representatives shall be filled, as provided by law, by selection or election


from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except
the religious sector.

Exceptions:

Art. VI, Sec. 28(3). Charitable institutions, churches, parsonages or


convents appurtenant thereto, mosques, non-profit cemeteries, and all
lands, buildings, and improvements, actually, directly, and exclusively
used for religious, charitable, or educational purposes shall be exempt
from taxation.

Sec. 29(2). No public money or property shall be appropriated, applied,


paid or employed directly or indirectly, for the use, benefit, or support of
any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, or other religious teacher, or
dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the Armed Forces of the Philippines, or any penal
institution, or government orphanage or leprosarium.

Art. XIV, Sec. 3(3). At the option expressed in writing by the parents
or guardians, religion shall be allowed to be taught to their children or
wards in public elementary and high schools within the regular class
hours by instructors designated or approved by the religious authorities
of the religion to which the children or wards belong, without additional
cost to the Government.

Sec. 4(2). Educational institutions, other than those established by


religious groups and mission boards, shall be owned solely by citizens of
the Philippines or corporations or associations at least 60% of the capital
of which is owned by such citizens. The Congress may, however, require
increased Filipino equity participation in all educational institutions.

The control and administration of educational institutions shall be vested


in citizens of the Philippines.

No educational institutions shall be established exclusively for aliens and


no group of aliens shall comprise more than 1/3 of the enrolment in any
school. The provisions of this subsection shall not apply to schools
established for foreign diplomatic personnel and their dependents and,
unless otherwise provided by law, for other foreign temporary residents.

The classic case in separation of church and state is Pamil vs. Teleron,3 which invalidated the
selection to a local post of Fr. Gonzaga, (note however, that ecclesiastics are not prohibited
from running for Congress).

It is difficult to draw the line between separation of Church and State. In Victoriano vs.
Elizalde,4 for instance, a law exempting members of Iglesia ni Kristo from the requirement
that all employees must join a union as condition for continued employment, pursuant to a
closed-shop agreement in the CBA, on the ground that it is prohibited by their religion, was
held valid.

The non-establishment clause is not violated, however, if the benefit derived by a religion
from the expenditure of public funds is merely incidental to public purpose. Thus, in Aglipay
vs. Ruiz,5 the SC held that the stamps printed by the government to commemorate the 33rd
International Eucharistic Congress in Manila did not violate the separation of church and
state, because its main purpose was to promote Manila as seat of the congress and thus to

3
G.R. No. L-34854, November 20, 1978
4
G.R. No. L-25246, September 12, 1974
5
G.R. No. L-45459 March 13, 1937
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 10 of 35

attract tourists to its (the stamp showed the map of the Philippines, not a chalice). Not
having been inspired by any sectarian feeling to favor a denomination nor to benefit the
Roman Catholic Church, whatever religious character the stamp had was only incidental and
uncontemplated.

While the Constitution mandates separation of Church and State through (1) Non-
Establishment, Free Exercise and No Religious Test clauses in the Bill of Rights, (2) the
disallowance of the religious sector from being registered as a political party and from being
appointed as sectoral representatives of Congress, yet it allows exceptions to the rule.

(1) The exemption of religious institutions from taxation is a recognition that the
Church is not all separate from State, for if they were really so, the Church should be taxed
by State like any other entity.

(2) Public funds, while generally prohibited from being spent for religious purposes as
an aspect of the Non- Establishment clause, may be applied to priest rendering religious
service to the AFP, a penal institution, or a government orphanage or leprosarium. The
reason is the exigency of the service. If members of the AFP had to go out of the barracks
to attend to their spiritual needs, national security might be endangered; If inmates were
allowed to go out of jail to hear mass, they might never return; and if lepers were allowed
out of the leprosarium, they might contaminate others.

The general prohibition, however, does not apply to a priest who, for instance,
teaches Mathematics at UP, for payment in this case is not for religious activities but for
teaching of a secular subject.

(3) The permission to have optimal religious instruction during regular class hours
upon written request of the parent or guardian, to be taught by a teacher approved by the
authorities of the religion of which the child is a member, provided it is without cost to the
government is a new provision in the Constitution. Under the old Administrative Code, the
instruction could not be within regular class hours. Under A359 of the Civil Code, religious
instruction would even be made part of the curriculum (with grades and failing marks), so
long as the parents ask for it.

(4) With the exception of sectarian schools, all schools must be owned by citizens or
60% Filipino corporations. The control and administration of all schools, including sectarian
schools, must be in the hands of Filipinos. Furthermore, they cannot be established
exclusively for aliens, and the alien population in the school should not exceed 1/3.

B. POLICIES

A policy in the Constitution is a standard which sets out a goal to be reached,


generally an improvement in economic, political or social feature of the community

1. INDEPENDENT FOREIGN POLICY AND A NUCLEAR FREE PHILIPPINES

Art. II, Sec. 7. 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.

Art. II, Sec. 8. The Philippines, consistent with the national interest,
adopts and pursues a policy of freedom from nuclear weapons in its
territory.

2. A JUST AND DYNAMIC SOCIAL ORDER

Art. II, Sec. 9. The State shall promote a just and dynamic social order
that will ensure the prosperity and independence of the nation and free
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 11 of 35

the people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an
improved quality of life for all.

Art. XII, Sec. 1. The goals of the national economy are a more equitable
distribution of opportunities, income, wealth; a sustained increase in
the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to
raising the quality of life for all, especially the underprivileged.

a. Promotion of Social Justice

• The 1987 Constitution, compared to the 1935 and the 1973 Constitution, contains the
most expanded concept of Social Justice.

The classic definition of SOCIAL JUSTICE is found in the case of Calalang vs. Williams, 6
where Justice Laurel declared as follows:

"Social Justice is 'neither communism, nor despotism, nor atomism, nor anarchy,' but
the humanization of laws and the equalization of social and economic forces by the
State so that justice in its rational and objectively secular conception may at least be
approximated. Social justice means the promotion of the welfare of all the people, the
adoption by the Government of measures calculated to insure economic stability of all
the component elements of society, through the maintenance of a proper economic and
social equilibrium in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally justifiable, or extra-
constitutionally, the exercise of powers underlying the existence of all governments on
the time-honored principle of salus populi est suprema lex."

Art. II, Sec. 10. The State shall promote social justice in all phases of
national development.

Art. XIII, Sec. 1. The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use,
and disposition of property and its increments.

Art. XIII, Sec. 2. The promotion of social justice shall include the
commitment to create economic opportunities based on freedom of
initiative and self-reliance.

Art. II, Sec. 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be defined by
law.

Art. VII, Sec. 13, par. 2. The spouse and relatives by consanguinity or
affinity within the 4th civil degree of the President shall not during his
tenure be appointed as Member 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.

6
G.R. No. 47800, December 2, 1940 (70 Phil. 726)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 12 of 35

Art. IX, B, Sec. 7. No elective official shall be eligible for appointment


or designation in any capacity to any public office or position during his
tenure.

Unless otherwise allowed by law or by the primary functions of his


position, no appointive official shall hold any other employment in the
Government or any subdivision, agency or instrumentality thereof,
including government owned or controlled corporations or subsidiaries.

The President cannot hold any other post except those allowed by the Constitution, viz., (1)
Chairman of NEDA, and (2) Department Secretary.

The Vice-President can hold a cabinet seat without need of confirmation.

Members of the cabinet (Secretaries and Undersecretaries): Some are of the view that the
clause "unless otherwise provided by law" implies that when there is a law allowing so, he
may be appointed to any other government post, even if not affiliated to his cabinet position.
EO 284 limits the number of government posts of cabinet members to not more than 2.
However, EO 284 has been declared unconstitutional by the SC in the case of Civil Liberties
Union vs. Executive Secretary.7 The prohibition however does not include positions held without
additional compensation in ex officio capacities as provided by law and as required by the
primary functions of the concerned official's office. [For further discussion, see Executive
Dept.: Prohibitions.]

Belgica vs. Executive Secretary, GR No. 208566, November 19, 2013 – PDAF Case

ISSUE: One of the petitioners submits that the Pork Barrel System enables politicians who are members of political
dynasties to accumulate funds to perpetuate themselves in power, in contravention of Section 26, Article II of the
1987 Constitution which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis and underscoring supplied)

HELD: At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to the
qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of itself, provide a
judicially enforceable constitutional right but merely specifies guideline for legislative or executive action.8 Therefore,
since there appears to be no standing law which crystallizes the policy on political dynasties for enforcement, the
Court must defer from ruling on this issue.

b. Respect for human dignity and human rights

Art. II, Sec. 11. The State values the dignity of every human person and
guarantees full respect for human rights.

Art. XVI, Sec. 5(2). The State shall strengthen the patriotic spirit and
nationalist consciousness of the military, and respect for people's rights in
the performance of their duty.

Art. XIII, Sec. 17


(1) There is hereby created an independent office called the Commission
on Human Rights.

Sec. 18. The Commission on Human Rights shall have the following
powers and functions:

(1) Investigate on its own or on complaint by any party all forms of


human rights violations involving civil or political rights;

(2) Adopt its operational guidelines and rules of procedure and cite for
contempt for violations thereof in accordance with the Rules of Court;

7
G.R. No. 83896, February 22, 1991 (194 SCRA 317)
8
See Pamatong v. Commission on Elections, G.R. No. 161872, April 13, 2004, 427 SCRA 96, 100-101.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 13 of 35

(3) Provide appropriate legal measures for the protection of human


rights of all person within the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need
protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and


information to enhance respect for the primacy of human rights;

(6) Recommend to Congress effective measures to promote human


rights and provide for, compensation to victims of violations of human
rights, or their families;

(7) Monitor the Government's compliance with international treaty


obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or


whose possession of document or other evidence is necessary or
convenient to determine the truth in any investigation conducted by it or
under its authority;

(9) Request the assistance of any department, bureau, office, or agency


in the performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

Sec. 19. The Congress may provide for other cases of violations of
human rights that should fall within the authority of the Commission
taking into account its recommendation.

c. Fundamental equality of women and men

Art. II, Sec. 14. The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality of men and women
before the law.

Art. IV, Sec. 1(2) in relation with Sec. 4. The following are citizens of
the Philippines:
xxx
(2) Those whose fathers or mothers are citizens of the Philippines.

Sec. 4. Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission they are deemed under the
law, to have renounced it.

Art. XIII, Sec. 14. The State shall protect working women by providing
safe and healthful working conditions, taking into account their maternal
functions, and such facilities and opportunities that will enhance their
welfare and enable them to realize their full potential in the service of the
nation.

Art. XIII, Sec. 11. The State shall adopt an integrated and
comprehensive approach to health development which shall endeavor to
make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the
underprivileged sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 14 of 35

One significant move to equalize men and women is in the area of citizenship. Under the
1935 Constitution, a child born of a Filipino mother became a Filipino only upon election
when he reached the age of majority. The 1973 Constitution removed this stigma and made
such born after 17 January 1973 a Filipino without the need of election. The 1987
Constitution improved the situation even more by granting to those children born before 17
January 1973 who elected citizenship, whether born before or after 17 January 1973, the
status of natural-born citizens.

At the same time, Filipino women who by virtue of marriage to an alien husband, became
citizens of their husband's country no longer lost her Philippine citizenship by that fact alone,
beginning 17 January 1973.

In the area of labor it has been consistently held, beginning in the US with Sandy v. Oregon
the court requiring the company to provide stools for women workers in the factories), that
statutes (Book 3, Title III, Chapter I of the Labor Code) granting women better treatment by
virtue of their maternal function were valid.

d. Promotion of health

Art. II, Sec. 15. The State shall protect and promote the right to health
of the people and instill health consciousness among them.

Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony
of nature.

Art. XIII, Sec. 11. The State shall adopt an integrated and
comprehensive approach to health development which shall endeavor to
make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women and children. The State
shall endeavor to provide free medical care to paupers.

Sec. 12. The State shall establish and maintain an effective food and
drug regulatory system and undertake appropriate health manpower
development and research, responsive to the country's health needs and
problems.

Sec. 13. The State shall establish a special agency for disabled persons
for their rehabilitation, self-development and self-reliance, and their
integration to the mainstream of society.

Oposa vs. Factoran, Jr., G.R. No. 101083, July 30, 1993, (224 SCRA 792)

• Validity of the issuance of several Timber License Agreements


• The right of children and those yet to be born to a balanced and healthful ecology for them to enjoy in the
future
• Their right to sue (Legal Standing) to sue is being challenged in this case.

HELD: While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation, the advancement of which may even be said to
predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in
the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies by the Constitution itself x x x the day would not be
too far when all else would be lost not only for the present generation, but also for those to come – generations
which stand to inherit nothing but parched earth incapable of sustaining life.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 15 of 35

Tano vs. Socrates, G.R. No. 110249, August 21, 1997 (278 SCRA 154)

FACTS: The Province of Palawan and the City of Puerto Princesa enacted ordinances prohibiting the catching and/or
exportation of live tropical fishes, and imposing penalties for violations thereof, in order to stop the illegal practice of
cyanide fishing which destroys the corals and other marine resources. Several fishermen apprehended for violating
the ordinances in question challenged their constitutionality contending that the ordinances violated their preferential
right as subsistence and marginal fishermen to the use of our communal marine resources guaranteed by the
Constitution, under Section 7, Article XIII. Will you sustain the challenge?

HELD: The “preferential right” of subsistence or marginal fishermen to the use of marine resources is not absolute.
In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to the first paragraph
of Section 2, Article XII of the Constitution, their “exploration, development and utilization x x x shall be under the
full control and supervision of the State.” Moreover, their mandated protection, development and conservation x x x
imply certain restrictions on whatever right of enjoyment there may be in favor of anyone. What must be borne in
mind is the State policy enshrined in the Constitution regarding the duty of the State to protect and advance the
right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature (Section
16, Article II). The ordinances in question are meant precisely to protect and conserve our marine resources to the
end that their enjoyment may be guaranteed not only for the present generation, but also for the generations to
come. The right to a balanced and healthful ecology carries with it a correlative duty to refrain from impairing the
environment.

e. Priority of education, science, technology, arts, culture and sports (ESTACS)

Art. II, Sec. 17. The State shall give priority to education, science,
technology, arts, culture and sports to foster patriotism and
nationalism, accelerate social programs, and promote total human
liberation and development.

Art. XIV, Sec. 1. The State shall protect and promote the right of all
citizens to quality education at all levels and shall take appropriate
steps to make such education accessible to all.

Students have the constitutional right not only to education but to a quality education, up to
the secondary level, for free. But this is subject to the right of the school to impose
reasonable academic standards, and to make education available only on the basis of merit.

In Villar vs. Technological Institute of the Philippines,9 a case involving the denial of enrollment of
student activists who took part in demonstrations and mass actions, and who, at the same
time incurred scholastic deficiencies. The Court held that participation in mass actions per
se is not a valid ground for dismissal, but that failure in academic subjects pursuant to
school regulations was a valid ground. For while the right to education is a social, economic
and cultural right, it is available only "on the basis of merit."

In Tagonan vs. Cruz Pano,10 a case of a nursing student who was denied readmission after she
failed a subject during her previous provisional admission (and her inability to take this
subject in another school after she tried to bribe the Dean of that school), the SC again
upheld the right of schools of higher learning to choose the students which it thinks could
best achieve their goal of excellence and truth, while affirming the right of students to
quality education.

Department of Education, Culture and Sports vs. San Diego, G.R. No. 89572, December 21, 1989 (180
SCRA 533)

FACTS: The private respondent is a graduate of UE with a degree of BS Zoology. The petitioner claims that he took
the NMAT 3 times and flunked it as many times. When he applied to take it again, the petitioner rejected his
application on the basis of the rule allowing only 3 chances for a student to take the NMAT. He then went to the
RTC-Valenzuela to compel his admission to the test.

9
G.R. No. L-69198, April 17, 1985 (135 SCRA 706)
10
G.R. No. L-45157, June 27, 1985 (137 SCRA 245)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 16 of 35

By agreement of the parties, private respondent was allowed to take the NMAT on 4/16/89 subject to the outcome
of his petition.

After the hearing, the respondent judge rendered a decision declaring the challenged order invalid and granting the
petition on the ground that the petitioner had been deprived of her right to pursue a medical education through an
arbitrary exercise of the police power.

HELD: We cannot sustain the respondent judge. Her decision must be reversed.

In Tablarin v. Gutierrez, 152 SCRA 730, this Court upheld the constitutionality of the NMAT as a measure intended to
limit the admission to medical schools only to those who have initially proved their competence and preparation for a
medical education.

We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue raised in both
cases is the academic preparation of the applicant. This may be gauged at least initially by the admission test and,
indeed with more reliability, by the 3-flunk rule.

Exercise of Police Power.-- The power is validly exercised if (a) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State, and (b) the means employed are
reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon
individuals. In other words, the proper exercise of the police power requires the concurrence of a lawful subject and
a lawful method.

The subject of the challenged regulation is within the ambit of the police power. It is the right and indeed the
responsibility of the State to insure that the medical profession is not infiltrated by incompetents.

The method employed by the regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive.
The 3-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion
of those not qualified to be doctors.

The right to quality education is not absolute. The Constitution also provides that "every citizen has the right to
choose a profession or course of study, subject to fair, reasonable and equitable admission and academic
requirements.

The challenged regulation does not violate the equal protection clause. A law does not have to operate with equal
force on all persons or things to be conformable to the equal protection clause.

There can be no question that a substantial distinction exists between medical students and other students who are
not subjected to the NMAT and the 3-flunk rule. The medical profession directly affects the very lives of the people,
unlike other careers which, for this reason, do not require more vigilant regulation.

There would be unequal protection if some applicants who have passed the tests are admitted and others who have
also qualified are denied entrance. In other words, what the equal protection requires is equality among equals.

f. Urban land reform and housing

Art. XIII, Sec. 9. The State shall by law, and for the common good,
undertake in cooperation with the private sector, a continuing program
of urban land reform and housing which will make available at
affordable cost, decent housing and basic services to underprivileged
and homeless citizens in urban centers and resettlement areas. It shall
also promote adequate employment opportunities to such citizens. In
the implementation of such program, the State shall respect the rights
of small property owners.

Sec. 10. Urban or rural poor dwellers shall not be evicted nor their
dwellings demolished, except in accordance with law and in a just and
humane manner.

No resettlement of urban or rural dwellers shall be undertaken without


adequate consultation with them and the communities where they are
to be relocated.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 17 of 35

The limitations to the power of the State in this regard:

1. Respect for the rights of property owners.

2. In the case of resettlement, said program must be with the permission of the persons to
be resettled, and the community to which they would be resettled.

g. Reform in agriculture and other natural resources

Art. II, Sec. 21. The State shall promote comprehensive rural
development and agrarian reform.

Art. XIII, Sec. 4. The State shall, by law, undertake an agrarian reform
program founded on the right of farmers and regular farm workers, who
are landless, to own directly or collectively the lands they till or, in case
of other farm workers, to receive a just share of the fruits thereof. To
this end, the State shall encourage and undertake the just distribution of
agricultural lands, subject to such priorities and reasonable retention
limits as Congress may prescribe, taking into account ecological,
developmental, or equity considerations, and subject to the payment of
just compensation. In determining retention limits, the State shall
respect the right of small landowners. The State shall further provide
incentives for voluntary land-sharing.

Sec. 5. The State shall recognize the right of farmers, farm workers, and
landowners, as well as cooperatives, and other independent farmers'
organizations to participate in the planning, organization, and
management of the program, and shall provide support to agriculture
through appropriate technology and research, and adequate financial,
production, marketing, and other support services.

Sec. 6. The State shall apply the principles of agrarian reform or


stewardship, whenever applicable in accordance with law, in the
disposition or utilization of other natural resources, including lands of the
public domain under lease or concession suitable to agriculture, subject
to prior rights, homestead rights of small settlers, and the rights of
indigenous communities to their ancestral lands.

The State may resettle landless farmers and farm workers in its own
agricultural estates which shall be distributed to them in the manner
provided by law.

Sec. 7. The State shall protect the rights of subsistence fishermen,


especially of local communities, to the preferential use of the communal
marine and fishing resources, both inland and offshore. It shall provide
support to such fishermen through appropriate technology and research,
adequate financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve such
resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fish workers shall
receive a just share from their labour in the utilization of marine and
fishing resources.

Sec. 8. The State shall provide incentives to landowners to invest the


proceeds of the agrarian reform program to promote industrialization,
employment creation, and privatization of public sector enterprises.
Financial instruments used as payment for their lands shall be honored as
equity in enterprises of their choice.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 18 of 35

The basic philosophy behind agrarian reform is "land to the tiller" if one is a regular farm
worker and "profit sharing" in other cases. But "just compensation" and a "reasonable
retention limit" are guaranteed the land owner.

Common limitations to land reform (urban or agrarian):

It must not impair the rights of small agricultural land owners, small homestead settlers, and
small property owners;

The idea of reform is to benefit the poor and other peasants and the landless. It would
therefore, be self-defeating for the Constitution to make no reservation in favor of small
property owners and homestead settlers.

The basic philosophy behind other natural resources is the principle of "stewardship" ---
anyone who is given the chance to cultivate public land must use in trust for the succeeding
generations, and so must exercise prudence in its use.

h. Protection of Labor

Art. II. Sec. 18. The State affirms labor as a primary social economic
force. It shall protect the rights of workers and promote their welfare.

Art. XIII, Sec. 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full employment
and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self- organization,


collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law. They
shall be entitle to security of tenure, humane conditions of work, and
living wage. They shall also participate in policy and decision-making
process affecting the rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between


workers and employers and the preferential use of voluntary modes in
settling disputes including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production
and the right of enterprises to reasonable returns on investments, and
to expansion and growth.

The basic philosophy behind labor is shared responsibility and the preferential use of
voluntary and peaceful for the settlement of disputes.

The right of government workers to form unions

Art. III, Sec. 8. The right of people, including those employed in the
public and private sectors, to form unions, associations or societies for
purposes not contrary to law shall not be abridged.

Art. IX, B, Sec. 2(5). The right of self-organization shall not be denied to
government employees.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 19 of 35

Sec. 2(1). The civil service embraces all branches, subdivisions,


instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters.

The right of government workers to form unions is undisputed under Art III, sec.8 of the
Constitution. (This provision is even misplaced since the Bill of Rights only covers civil and
political rights.) The problem is whether they have the right to strike.

Those who hold the negative view say that the right to self- organization is mentioned in Art
III(8) separately from the right to strike in Art XIII(3). If it is included, there would be no
need to explicate the two anymore.

But those who hold the affirmative view say that although the Constitution does not
explicitly grant it, Congress can always grant the right to government workers. The
Constitution does not prohibit it in Art III(8) in the phrase "for purposes not contrary to law".
Besides the right to self-organization is rendered nugatory without the coercive tool of strike
(which is true because the strike at issue is only the economic strike, not the ULP strike).

It must be noted that the SC ruled in Alliance of Government Workers vs. Minister of Labor,11
under the 1973 Constitution, that government workers cannot negotiate for terms and
condition of employment, for these are a matter of law. Their remedy is to report to their
own heads and to convince Congress to enact the desired law.

Said the Court: Civil servants are entitled to form societies for purposes not contrary to law.
But to form an association is one thing, and to use such association for the coercive measure
of going on strike and bargaining with the government so as to pressure it into complying
with their demands, is another.

In NHA vs. Juco, 12 the SC held that those in the government service cannot bargain
collectively as private workers because they are governed by the Civil Service Law. It also
held that all govt-owned or controlled corporations regardless of their manner of creation,
were covered by the Civil Service.

In interpreting the ruling in the above cases, we have to distinguish between two kinds of
government corporations in accordance with Art. IX, B, Sec. 2(1): a) those which were
organized with special charters, in case the employees are governed by the Civil Service Law
and arguably by the SC ruling in Alliance, and b) those which were organized pursuant to
the general law (Corporation Code), in which case their employees can without doubt
bargain collectively and go on strike.

The grant of the right to form unions is a social economic right included for the first time in
the Constitution. Previously, only political and civil rights were guaranteed government
employees.

Question: Does the right to self-organization given to govt. employees include the right to
strike?

SSS Employees Assn vs. CA, G.R. No. 85279, July 28, 1989 (175 SCRA 686)

FACTS: SSS filed with the RTC-QC a complaint for damages with a prayer for a writ of preliminary injunction against
petitioners SSSEA, alleging that the officers and members of the latter staged an illegal strike and barricaded the
entrances to the SSS building preventing non-striking employees from reporting to work and SSS members from
transacting business with SSS. The Public Sector Labor-Management Council ordered the strikers to return to work
but the strikers refused to do so. The SSSEA went on strike because SSS failed to act on the union's demands.

Petitioners filed a motion to dismiss the complaint for lack of jurisdiction, which motion was denied. The restraining
order which was previously issued was converted into an injunction after finding the strike illegal. Petitioners

11
G.R. No. L-60403 August 3, 1983, (124 SCRA 1)
12
G.R. No. L-64313 January 17, 1985 (134 SCRA 172)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 20 of 35

appealed the case to the CA. The latter held that since the employees of SSS are govt employees, they are not
allowed to strike.

HELD: Employees in the Civil Service may not resort to strikes, walkouts and other temporary work stoppages, like
workers in the private sector, in order to pressure the Govt. to accede to their demands. As now provided under
Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Govt. EEs to Self-Organization
which took effect after the initial dispute arose, the terms and conditions of employment in the Govt, including any
political subdivision or instrumentality thereof and govt. owned and controlled corporations with original charters, are
governed by law and employees therein shall not strike for the purpose of securing changes thereof.

The statement of the court in Alliance of Govt Workers v. Minister of Labor and Employment (124 SCRA 1) is relevant
as it furnishes the rationale for distinguishing bet. workers in the private sector and govt employees with regard to
the right to strike?

Since the terms and conditions of govt. employment are fixed by law, govt. workers cannot use the
same weapons employed by workers in the private sector to secure concessions from their
employers. The principle behind labor unionism in private industry is that industrial peace cannot be
secured through compulsion of law. Relations bet. private employers and their employees rest on
an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor
and welfare legislation, the terms and conditions of employment in the unionized private sector are
settled through the process of collective bargaining. In govt employment, however, it is the
legislature and, where properly given delegated power, the administrative heads of govt w/c fix the
terms and conditions of employment. And this is effected through statutes or administrative
circulars, rules, and regulations, not through CBA's

EO 180, which provides guidelines for the exercise of the right to organize of govt employees, while clinging to the
same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment
involved are not among those fixed by law.

Govt employees may, therefore, through their unions or associations, either petition the Congress for the betterment
of the terms and conditions of employment which are w/in the ambit of legislation or negotiate w/ the appropriate
govt agencies for the improvement of those w/ are not fixed by law. If there be any unresolved grievances, the
dispute may be referred to the Public Sector Labor-Management Council for appropriate action.

Manila Public School Teachers Association vs. Laguio, G.R. No. 95445, August 6, 1991 (200 SCRA 323)

FACTS: On September 17, 1990, Monday, at least 800 public school teachers proceeded to the national office of the
DECS and aired their grievances. The mass action continued into the week despite the DECS Secretary's RETURN TO
WORK order. The Secretary filed administrative charges against the protesting teachers. The Secretary rendered the
questioned decisions in the administrative proceeding. He dismissed some teachers and placed others in under
suspension. Two separate petitions were filed to assail the validity of the return to work order and his decisions in
the administrative proceeding.

ISSUE: whether or not the mass actions are considered as strikes?

HELD: Yes. The mass actions constituted a concerted and unauthorized stoppage of, or absence from work, which it
was the teachers' duty to perform, undertaken for essentially economic reasons.

ISSUE: whether or not public school teachers can strike?

HELD: No. Employees of the public service do not have the right to strike although they have the right to self
organization and negotiate with appropriate government agencies for the improvement of working conditions.

ISSUE: whether or not due process was observed during the administrative proceedings?

HELD: This court is a court of last resort. It resolves questions of law where there is no dispute of the facts or that
the facts have been already determined by the lower tribunals. It is not a trier of facts. It can not resolve the issue
which requires the establishment of some facts. The remedy is for the petitioners to participate in the administrative
proceedings. If they lost, they may appeal to the Civil Service Commission. If pending said administrative
proceedings, immediate recourse to judicial authority was believed necessary, recourse is with the RTC where there
would be opportunity to prove relevant facts.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 21 of 35

i. Independent People's Organizations

Art. II, Sec. 23. The State shall encourage non- governmental,
community-based, or sectoral organizations that promote the welfare
of the nation.

Art. XIII, Sec. 15. The State shall respect the role of independent
people's organizations to enable the people to pursue and protect,
within the democratic framework, their legitimate and collective
interests and aspirations through peaceful and lawful means.

People's organizations are bona fide associations of citizens with


demonstrated capacity to promote the public interest and with
identifiable leadership, membership and structure.

Sec. 16. The right of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged. The State, shall by law,
facilitate the establishment of adequate consultation mechanisms.

This is in recognition of people's power, aside from the provision on initiative and
referendum.

3. FAMILY AS A BASIC AUTONOMOUS SOCIAL INSTITUTION

Art. II, Sec. 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life of
the unborn from conception. The natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
Government.

This provision seems to be the basis of an argument that abortion is prohibited by the
Constitution. It might also be the basis of a stand against family planning. The root of the
problem, of course, is the determination of when life begins.

The right of parents to rear their children is the only natural right recognized by the
Constitution. This is a declaration that the State does not espouse fascism which holds that
the State owns the life of everyone.

Art. XV, Sec. 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its solidarity
and actively promote its development.

Sec. 2. Marriage, as an inviolable social institution, is the foundation of


the family and shall be protected by the State.

Some cite this provision as the basis of a stand against divorce. And yet not really. The
phrase "inviolable social institution," was lifted from Art. 52 of the Civil code, and under that
Code, divorce was part of the proposed draft submitted to Congress by the Code
Commission and was almost approved if not for reasons other than compatibility with Art.
52.

Sec. 3. The State shall defend:


(1) The right of spouses to found a family according to their religious
convictions and the demands of responsible parenthood;
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 22 of 35

(2) The right of children to assistance, including proper care and


nutrition, and special protection from all forms of neglect, abuse,
cruelty, exploitation and other conditions prejudicial to their
development;

(3) The right of the family to a family living wage and income; and

(4) The right of families or family associations to participate in the


planning and implementation of policies and programs that affect them.

Sec. 4. The family has the duty to care for its elderly members but the
State may also do so through just programs of social security.

Art. II, Sec. 13. The State recognizes the vital role of youth in nation-
building and shall promote and protect their physical, moral, spiritual,
intellectual and social well-being. It shall inculcate in the youth
patriotism and nationalism, and encourage their involvement in public
and civil affairs.

Art. 52. Marriage is not a mere contract but an inviolable social


institution. Its nature, consequence and incidents are governed by law
and not subject to stipulation, except that the marriage settlements
may be to a certain extent fix the property relations during the
marriage. (Civil Code)

Art. 1. Marriage is a special contract of permanent union between a


man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to stipulation,
except that marriage settlements may fix the property relations during
the marriage within the limits provided by this Code. (Family Code)

4. SELF-RELIANT AND INDEPENDENT ECONOMIC ORDER

Art. II, Sec. 19. The State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos.

Sec. 20. The State recognizes the indispensable role of the private
sector, encourages private enterprise, and provides incentives to
needed investments.

Art. XII, Sec. 6. The use of property bears a social function, and all
economic agents shall contribute to the common good. Individuals and
private groups, including corporations, cooperatives and similar collective
organizations, shall have the right to own, establish and operate
economic enterprises, subject to the duty of the State to promote
distributive justice and to intervene when the common good so demands.

These provisions reveal that the economic policy of the Philippines is one closer to socialism
than capitalism. The State adopts a policy of balancing the private sector's pursuit for profit
and the concern of the State to promote distributive justice.

The use of "distributive justice" is based on the Aristotelian notion of giving each one what is
due him on the basis of personal worth and value, and not merely what he has contracted
for.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 23 of 35

Tanada vs. Angara, G.R. No.118295, May 2, 1997 (272 SCRA 18)

HELD: The constitutional policy of a “self-reliant and independent national economy” does not necessarily rule out
the entry of foreign investments, goods and services. It contemplates neither “economic seclusion” nor “mendicancy
in the international community.”

Aside from envisioning a trade policy based on “equality and reciprocity,” the fundamental law encourages industries
that are “competitive in both domestic and foreign markets,” thereby demonstrating a clear policy against a
sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can
compete with the best in the foreign markets.
Garcia vs. BOI, G.R. No. 88637, September 7, 1989 (191 SCRA 288)

FACTS: The BOI approved the transfer of the site of the petrochemical plant from Bataan to Batangas and shift of
feedstock for that plant from naphtha only to naphtha and/or LPG. The petrochemical plant was to be a joint
venture between the PNOC and the BPC which is a Taiwanese group. According to the BOI, it is the investor which
has the final say as to the site and the feedstock to be used.

HELD: Every provision of the Constitution on the national economy and patrimony is infused with the spirit of
national interest. The non-alienation of natural resources, the State's full control over the devt. and utilization of
scarce resources, agreements with foreigners being based on real contributions to the economic growth and general
welfare of the country and the regulation of foreign investments in accordance with national goals and priorities are
too explicit not to be noticed and understood.

A petrochemical industry is not an ordinary investment opportunity. The petrochemical industry is essential to the
national interst. The BOI committed a grave abuse of discretion when it approved the transfer of the petrochemical
plant from Bataan to Batangas and authorized the change of feedstock from naphtha only to naphtha and/or LPG.
No cogent advantage to the govt. has been shown by this transfer. This is a repudiation of the independent policy
of the govt. expressed in numerous laws and the Constitution to run its own affairs the way it deems best for the
national interest.

5. COMMUNICATION AND INFORMATION IN NATION-BUILDING

Art. II, Sec. 24. The State recognizes the vital role of communication
and information in nation-building.

Art. XVI, Sec. 10. The State shall the provide the policy environment
for the full development of Filipino capability and the emergence of
communication structures suitable to the needs and aspirations of the
nation and the balanced flow of information into, out of, and across the
country, in accordance with a policy that respect the freedom of speech
and of the press.

Sec. 11(1). The ownership and management of mass media shall be


limited to citizens of the Philippines, or to corporations, cooperatives or
associations, wholly owned and managed by such citizens.

The Congress shall regulate or prohibit monopolies in commercial mass


media when the public interest so requires. No combinations in restraint
of trade or unfair competition therein shall be allowed.

(2) The advertising industry is impressed with public interest, and shall
be regulated by law for the protection of consumers and the promotion of
general welfare.

Only Filipino citizens or corporations or associations at least seventy per


cent of the capital of which is owned by such citizens shall be allowed to
engage in the advertising industry.

The participation of foreign investors in the governing body of entities in


such industry shall be limited to their proportionate share in the capital
thereof, and all the executive and managing officers of such entities must
be citizens of the Philippines.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 24 of 35

Art. XVIII, Sec. 23. Advertising entities affected by paragraph 2,


Section 11 of Article XVI of this Constitution shall have five years from its
ratification to comply on a graduated and proportionate basis with the
minimum Filipino ownership requirement therein.

Both ownership and management of mass media must be in the hands of Filipinos, 100%.

While monopolies in mass media may be regulated or prohibited, combinations in restraint of


and unfair competition in information matters are absolutely prohibited.

Commercial advertising is now defined as being vested with public interest, and can thus be
owned and managed only by 70% Filipino corporations.

6. AUTONOMY OF LOCAL GOVERNMENTS

Art. II, Sec. 25. The State shall ensure the autonomy of local
governments.

Art. X. LOCAL GOVERNMENT.

GENERAL PROVISIONS

Sec. 1. The territorial and political subdivisions of the Republic of the


Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.

Sec. 2. The territorial and political subdivisions shall enjoy local


autonomy.

Sec. 3. The Congress shall enact a local government code which shall
provide for a more responsive and accountable local government
structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and
resources, and provide for the qualifications, elections, appointment and
removal, term, salaries, powers and functions and duties of local officials,
and all other matters relating to the organization and operation of the
local units.

Sec. 4. The President of the Philippines shall exercise general


supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities with
respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and
functions.

Sec. 5. Each local government unit shall have the power to create its
own sources of revenues and to levy taxes, fees, and charges subject to
such guidelines and limitations as Congress may provide, consistent with
the basic policy of local autonomy. Such taxes, fees, and charges shall
accrue exclusively to the local governments.

Sec. 6. Local government units shall have a just share, as determined


by law, in the national taxes which shall be automatically released to
them.

Sec. 7. Local governments shall be entitled to an equitable share in the


proceeds of the utilization and development of the national wealth within
their respective areas, in the manner provided by law, including sharing
the same with the inhabitants by way of direct benefits.

Sec. 8. The term of office of elective local officials, except barangay


officials, which shall be determined by law, shall be three years and no
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 25 of 35

such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full term of which
he was elected.

Sec. 9. Legislative bodies of local governments shall have sectoral


representation as may be prescribed by law.

Sec. 10. No province, city, municipality, or barangay may be created,


divided, merged, abolished, or its boundary substantially altered, except
in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected.

Sec. 11. The Congress may, by law, create special metropolitan political
subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The
component cities and municipalities shall retain their basic autonomy and
shall be entitled to their own local executives and legislative assemblies.
The jurisdiction of the metropolitan authority that will thereby be created
shall be limited to basic services requiring coordination.

Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The
voters of component cities within a province, whose charters contain no
such prohibition, shall not be deprived of their right to vote for elective
provincial officials.

Sec. 13. Local government units may group themselves, consolidate or


coordinate their efforts, services, and resources for purposes commonly
beneficial to them in accordance with law.

Sec. 14. The President shall provide for regional development councils or
other similar bodies composed of local government officials, regional
heads of departments and other government offices, and representatives
from non-governmental organizations with the regions for purposes of
administrative decentralization to strengthen the autonomy of the units
therein and to accelerate the economic and social growth and
development of the units in the region.

AUTONOMOUS REGIONS

Sec. 15. There shall be created autonomous regions in Muslim Mindanao


and in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant
characteristics which the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the
Philippines.

Sec. 16. The President shall exercise general supervision over


autonomous regions to ensure that laws are faithfully executed.

Sec. 17. All powers, functions, and responsibilities not granted by this
Constitution or by law to the autonomous regions shall be vested in the
National Government.

Sec. 18. The Congress shall enact an organic act for each autonomous
region with the assistance and participation of the regional consultative
commission composed of representatives appointed by the President from
a list of nominees from multisectoral bodies. The organic act shall define
the basic structure of government for the region consisting of the
executive department and legislative assembly, both of which shall be
elective and representative of the constituent political units. The organic
acts shall likewise provide for special courts with personal, family, and
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 26 of 35

property law jurisdiction consistent with the provisions of this Constitution


and national laws.

The creation of the autonomous region shall be effective when approved


by majority of the votes cast by the constituent units in a plebiscite called
for the purpose, provided that only provinces, cities, and geographic
areas voting favorably in such plebiscite shall be included in the
autonomous region.

Sec. 19. The first Congress elected under this Constitution shall, within
eighteen months from the time of organization of both Houses, pass the
organic acts for the autonomous regions in Muslim Mindanao and the
Cordilleras.

Sec. 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous
regions shall provide for legislative powers over:
(1) Administrative organizations;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.

Sec. 21. The preservation of peace and order within the region shall be
the responsibility of the local police agencies which shall be organized,
maintained, supervised, and utilized in accordance with applicable laws.
The defense and security of the region shall be the responsibility of the
National Government.

Belgica vs. Executive Secretary, GR No. 208566, November 19, 2013 – PDAF Case

The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3, Article X of
the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization with
effective mechanisms of recall, initiative, and referendum, allocate among the different local
government units their powers, responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and functions and duties of local officials,
and all other matters relating to the organization and operation of the local units.

Pursuant thereto, Congress enacted RA 7160, otherwise known as the "Local Government Code of 1991" (LGC),
wherein the policy on local autonomy had been more specifically explicated as follows:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant communities and make
them more effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government structure instituted
through a system of decentralization whereby local government units shall be given more powers,
authority, responsibilities, and resources. The process of decentralization shall proceed from the
National Government to the local government units.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 27 of 35

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct
periodic consultations with appropriate local government units, nongovernmental and
people‘s organizations, and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions. (Emphases and underscoring
supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower local
government units (LGUs) to develop and ultimately, become self-sustaining and effective contributors to the national
economy. As explained by the Court in Philippine Gamefowl Commission v. Intermediate Appellate Court:13

This is as good an occasion as any to stress the commitment of the Constitution to the
policy of local autonomy which is intended to provide the needed impetus and
encouragement to the development of our local political subdivisions as "self - reliant
communities." In the words of Jefferson, "Municipal corporations are the small republics from
which the great one derives its strength." The vitalization of local governments will enable their
inhabitants to fully exploit their resources and more important, imbue them with a deepened sense
of involvement in public affairs as members of the body politic. This objective could be blunted
by undue interference by the national government in purely local affairs which are best
resolved by the officials and inhabitants of such political units. The decision we reach today
conforms not only to the letter of the pertinent laws but also to the spirit of the Constitution.
(Emphases and underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the constitutional principles
on local autonomy since it allows district representatives, who are national officers, to substitute their judgments in
utilizing public funds for local development.

HELD: The Court agrees with petitioners.

Philconsa vs. Enriquez,14 described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their congressional colleagues, are
likely to be knowledgeable about the needs of their respective constituents and the priority to be given each
project." Drawing strength from this pronouncement, previous legislators justified its existence by stating that "the
relatively small projects implemented under the Congressional Pork Barrel complement and link the national
development goals to the countryside and grassroots as well as to depressed areas which are overlooked by central
agencies which are preoccupied with mega-projects.15 Similarly, in his August 23, 2013 speech on the "abolition" of
PDAF and budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel was originally
established for a worthy goal, which is to enable the representatives to identify projects for communities that the
LGU concerned cannot afford.16

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which actually belies
the avowed intention of "making equal the unequal." In particular, the Court observes that the gauge of PDAF and
CDF allocation/division is based solely on the fact of office, without taking into account the specific
interests and peculiarities of the district the legislator represents. In this regard, the allocation/division
limits are clearly not based on genuine parameters of equality, wherein economic or geographic indicators have been
taken into consideration. As a result, a district representative of a highly-urbanized metropolis gets the same amount
of funding as a district representative of a far-flung rural province which would be relatively "underdeveloped"
compared to the former. To add, what rouses graver scrutiny is that even Senators and Party-List Representatives –
and in some years, even the Vice-President – who do not represent any locality, receive funding from the
Congressional Pork Barrel as well. These certainly are anathema to the Congressional Pork Barrel‘s original intent
which is "to make equal the unequal." Ultimately, the PDAF and CDF had become personal funds under the effective
control of each legislator and given unto them on the sole account of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with the
functions of the various Local Development Councils (LDCs) which are already legally mandated to "assist the
corresponding sanggunian in setting the direction of economic and social development, and coordinating
development efforts within its territorial jurisdiction."17 Considering that LDCs are instrumentalities whose functions

13
230 Phil. 379, 387-388 (1986).
14
G.R. Nos. 113105, 113174, 113766 & 113888, August 19, 1994, 235 SCRA 506.
15
Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines, "Understanding the ‘Pork Barrel,‘"
<http://www.congress.gov.ph/download/ 14th/pork_barrel.pdf > (visited October 17, 2013).
16
<http://www.gov.ph/2013/08/23/english-statement-of-president-aquino-on-the-abolition-of-pdaf-august-23-2013/> (visited
October 22, 2013).
17
Section 106 of the LGC provides:
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 28 of 35

are essentially geared towards managing local affairs, their programs, policies and resolutions should not be
overridden nor duplicated by individual legislators, who are national officers that have no law-making authority
except only when acting as a body. The undermining effect on local autonomy caused by the post-enactment
authority conferred to the latter was succinctly put by petitioners in the following wise:

With PDAF, a Congressman can simply bypass the local development council and initiate projects on
his own, and even take sole credit for its execution. Indeed, this type of personality-driven project
identification has not only contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination efforts of the
government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby subvert genuine
local autonomy, the 2013 PDAF Article as well as all other similar forms of Congressional Pork Barrel is deemed
unconstitutional

• This topic will be thoroughly be discussed in your subject of PUBLIC CORPORATIONS

7. RECOGNITION OF THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES

Art. II, Sec. 22. The State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity
and development.

Art. XII, Sec. 5. The State, subject to the provisions of this Constitution
and national development policies and programs, shall protect the rights
of indigenous cultural communities to their ancestral lands to ensure their
economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws


governing property rights or relations in determining the ownership and
extent of ancestral domain.

Art. XIII, Sec. 6. The State shall apply the principles of agrarian reform
or stewardship whenever applicable in accordance with law, in the
disposition or utilization of other natural resources, including lands of the
public domain under lease or concession suitable to agriculture, subject
to prior rights, homestead rights of small settlers, and the rights of
indigenous communities to their ancestral lands.

Art. XIV, Sec. 17. The State shall recognize, respect and protect the
rights of indigenous cultural communities to preserve and develop their
cultures, traditions and institutions. It shall consider these rights in the
formulation of national plans and policies.

Art. XVI, Sec. 12. The Congress may create a consultative body to
advise the President on policies affecting indigenous cultural
communities, the majority of the members of which shall come from such
communities.

Cruz vs. Sec. of DENR, G.R. No. 135385, December 6, 2000 (347 SCRA 128)

1. Enumerate the Constitutional provisions recognizing and protecting the rights and interests of the
indigenous peoples.

HELD: The framers of the 1987 Constitution, looking back to the long destitution of our less fortunate brothers,
fittingly saw the historic opportunity to actualize the ideals of people empowerment and social justice, and to reach
out particularly to the marginalized sectors of society, including the indigenous peoples. They incorporated in the

Sec. 106. Local Development Councils. – (a) Each local government unit shall have a comprehensive multi-sectoral
development plan to be initiated by its development council and approved by its sanggunian. For this purpose, the
development council at the provincial, city, municipal, or barangal level, shall assist the corresponding sanggunian in
setting the direction of economic and social development, and coordinating development efforts within its territorial
jurisdiction.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 29 of 35

fundamental law several provisions recognizing and protecting the rights and interests of the indigenous peoples, to
wit:

Section 22. The State recognizes and promotes the rights of indigenous peoples within the
framework of national unity and development. (Article II of the Constitution, entitled State Principles
and Policies)

Section 5. The State, subject to the provisions of the Constitution and national development policies
and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to
ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domains. (Article XII of the
Constitution, entitled National Economy and Patrimony)

Section 1. The Congress shall give the highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the
common good.

To this end, the State shall regulate the acquisition, ownership, use and disposition of property and
its increments. (Article XIII of the Constitution, entitled Social Justice and Human Rights)

Section 6. The State shall apply the principles of agrarian reform or stewardship, whenever
applicable in accordance with law, in the disposition and utilization of other natural resources,
including lands of the public domain under lease or concession, subject to prior rights, homestead
rights of small settlers, and the rights of indigenous communities to their ancestral lands.

Section 17. The State shall recognize, respect, and protect the rights of cultural communities to
preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the
formulation of national plans and policies. (Article XIV of the Constitution, entitled Education,
Science, Technology, Arts, Culture, and Sports)

Section 12. The Congress may create a consultative body to advise the President on policies
affecting indigenous cultural communities, the majority of the members of which shall come from
such communities. (Article XVI of the Constitution, entitled General Provisions)

2. Discuss the Indigenous Peoples Rights Act (R.A. No. 8371).

HELD: Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of Indigenous
Cultural Communities/Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing
Implementing Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It is simply known as "The
Indigenous Peoples Rights Act of 1997" or the IPRA.

The IPRA recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a
distinct sector in Philippine society. It grants these people the ownership and possession of their ancestral domains
and ancestral lands, and defines the extent of these lands and domains. The ownership given is the indigenous
concept of ownership under customary law which traces its origin to native title.

Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance and
empowerment (Sections 13 to 20), social justice and human rights (Sections 21 to 28), the right to preserve and
protect their culture, traditions, institutions and community intellectual rights, and the right to develop their own
sciences and technologies (Sections 29 to 37).

3. Define "indigenous peoples/indigenous cultural communities."

HELD: 1. Drawing inspiration from both our fundamental law and international law, IPRA now employs the
politically-correct conjunctive term “indigenous peoples/indigenous cultural communities” as follows:

Section 3. Definition of Terms. - For purposes of this Act, the following terms shall mean:

(a) INDIGENOUS PEOPLES/INDIGENOUS CULTURAL COMMUNITIES. - refer to a group of people or


homogenous societies identified by self-ascription and ascription by others, who have
continuously lived as organized community on communally bounded and defined territory, and
who have, under claims of ownership since time immemorial, occupied, possessed and utilized
such territories, sharing common bonds of language, customs, traditions, and other distinctive
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 30 of 35

cultural traits, or who have, through resistance to political, social and cultural inroads of
colonization, non-indigenous religions and cultures, became historically differentiated from the
majority of Filipinos. Indigenous peoples shall likewise include peoples who are regarded as
indigenous on account of their descent from the populations which inhabited the country at the
time of conquest or colonization, or at the time of inroads of non-indigenous religions and
cultures, or the establishment of present State boundaries, who retain some or all of their own
social, economic, cultural and political institutions, but who may have been displaced from their
traditional domains or who may have resettled outside their ancestral domains x x x.

2. The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities (ICCs) or the
Indigenous Peoples (IPs). The term “ICCs” is used in the 1987 Constitution while that of “IPs” is the contemporary
international language in the International Labor Organization (ILO) Convention 169 and the United Nations (UN)
Draft Declaration on the Rights of Indigenous Peoples.

Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous societies who
have continuously lived as an organized community on communally bounded and defined territory. These groups of
people have actually occupied, possessed and utilized their territories under claim of ownership since time
immemorial. They share common bonds of language, customs, traditions and other distinctive cultural traits, or,
they, by their resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who
inhabited the country at the time of conquest or colonization, who retain some or all of their own social, economic,
cultural and political institutions but who may have been displaced from their traditional territories or who may have
resettled outside their ancestral domains.

4. Define “ancestral domains” and “ancestral lands.” Do they constitute part of the land of the public
domain?

HELD: Ancestral domains and ancestral lands are the private property of indigenous peoples and do not constitute
part of the land of the public domain.

The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral lands. Ancestral
lands are not the same as ancestral domains. These are defined in Section 3(a) and (b) of the Indigenous Peoples
Rights Act x x x.

ANCESTRAL DOMAINS are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or possessed
by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial,
continuously until the present, except when interrupted by war, force majeure or displacement by force, deceit,
stealth or as a consequence of government projects or any other voluntary dealings with government and/or private
individuals or corporations. Ancestral domains comprise lands, inland waters, coastal areas, and natural resources
therein and includes ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned
whether alienable or not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural
resources. They also include lands which may no longer be exclusively occupied by ICCs/IPs but from which they
traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs
who are still nomadic and/or shifting cultivators (Section 3[a], IPRA).

ANCESTRAL LANDS are lands held by the ICCs/IPs under the same conditions as ancestral domains except that
these are limited to lands and that these lands are not merely occupied and possessed but are also utilized by the
ICCs/IPs under claims of individual or traditional group ownership. These lands include but are not limited to
residential lots, rice terraces or paddies, private forests, swidden farms and tree lots (Section 3[b], IPRA).

5. How may ICCs/IPs acquire rights to their ancestral domains and ancestral lands?

HELD: The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two modes: (1)
by native title over both ancestral lands and domains; or (2) by torrens title under the Public Land Act and the Land
Registration Act with respect to ancestral lands only.

6. What is the concept of “native title?” What is a Certificate of Ancestral Domain Title (CADT)?

HELD: NATIVE TITLE refers to ICCs/IPs preconquest rights to lands and domains held under a claim of private
ownership as far back as memory reaches. These lands are deemed never to have been public lands and are
indisputably presumed to have been held that way since before the Spanish Conquest. The rights of ICCs/IPs to
their ancestral domains (which also include ancestral lands) by virtue of native title shall be recognized and
respected (Section 11, IPRA). Formal recognition, when solicited by ICCs/IPs concerned, shall be embodied in a
Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the
territories identified and delineated.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 31 of 35

Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title, however, is a right of
private ownership peculiarly granted to ICCs/IPs over their ancestral lands and domains. The IPRA categorically
declares ancestral lands and domains held by native title as never to have been public land. Domains and lands held
under native title are, therefore, indisputably presumed to have never been public lands and are private.

The concept of native title in the IPRA was taken from the 1909 case of Carino v. Insular Government (41 Phil. 935
[1909], 212 U.S. 449, 53 L. Ed. 594). Carino firmly established a concept of private land title that existed
irrespective of any royal grant from the State.

7. Distinguish ownership of land under native title and ownership by acquisitive prescription against the
State.

HELD: Ownership by virtue of native title presupposes that the land has been held by its possessor and his
predecessor-in-interest in the concept of an owner since time immemorial. The land is not acquired from the State,
that is, Spain or its successor-in-interest, the United States and the Philippine Government. There has been no
transfer of title from the State as the land has been regarded as private in character as far back as memory goes. In
contrast, ownership of land by acquisitive prescription against the State involves a conversion of the character of the
property from alienable public land to private land, which presupposes a transfer of title from the State to a private
person.

8. Discuss the concept of “jura regalia” and how it evolved in the Philippines. Does it negate native title
to lands held in private ownership since time immemorial?

HELD: Generally, under the concept of jura regalia, private title to land must be traced to some grant, express or
implied, from the Spanish Crown or its successors, the American Colonial government, and thereafter, the Philippine
Republic. The belief that the Spanish Crown is the origin of all land titles in the Philippines has persisted because
title to land must emanate from some source for it cannot issue forth from nowhere.

In its broad sense, the term “jura regalia” refers to royal grants, or those rights which the King has by virtue of his
prerogatives. In Spanish law, it refers to a right which the sovereign has over anything in which a subject has a
right of property or propriedad. These were rights enjoyed during feudal times by the king as the sovereign.

The theory of the feudal system was that title to all lands was originally held by the King, and while the use of lands
was granted out to others who were permitted to hold them under certain conditions, the King theoretically retained
the title. By fiction of law, the King was regarded as the original proprietor of all lands, and the true and only source
of title, and from him all lands were held. The theory of jura regalia was therefore nothing more than a natural fruit
of conquest.

The Regalian theory, however, does not negate native title to lands held in private ownership since time immemorial.
In the landmark case of Carino v. Insular Government (41 Phil. 935, 212 U.S. 449, 53 L. Ed. 594 [1909]), the United
States Supreme Court, reversing the decision of the pre-war Philippine Supreme Court, made the following
pronouncement:

Every presumption is and ought to be taken against the Government in a case like the present. It
might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory
goes, the land has been held by individuals under a claim of private ownership, it will be presumed
to have been held in the same way from before the Spanish conquest, and never to have been
public land. (Carino v. Insular Government, supra note 75, at 941)

The above ruling institutionalized the recognition of the existence of native title to land, or ownership of land by
Filipinos by virtue of possession under a claim of ownership since time immemorial and independent of any grant
from the Spanish Crown, as an exception to the theory of jura regalia.

Carino was decided by the U.S. Supreme Court in 1909, at a time when decisions of the U.S. Court were binding as
precedent in our jurisdiction (Section 10, Philippine Bill of 1902). We applied the Carino doctrine in the 1946 case of
Oh Cho v. Director of Lands (75 Phil. 890 [1946]), where we stated that “[a]ll lands that were not acquired from the
Government either by purchase or by grant, belong to the public domain, but [a]n exception to the rule would be
any land that should have been in the possession of an occupant and of his predecessors in interest since time
immemorial, for such possession would justify the presumption that the land had never been part of the public
domain or that it had been private property even before the Spanish conquest.

9. Does R.A. 8371, otherwise known as “the Indigenous People’s Rights Act” infringe upon the State’s
ownership over the natural resources within the ancestral domains?
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HELD: Petitioners posit that IPRA deprives the State of its ownership over mineral lands of the public domain and
other natural resources, as well as the State’s full control and supervision over the exploration, development and
utilization of natural resources. Specifically, petitioners and the Solicitor General assail Sections 3[a], 5, and 7 of
IPRA as violative of Section 2, Article XII of the Constitution which states, in part, that “[a]ll lands of the public
domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources are owned by the State.” (Section 2, Article XII,
Constitution) They would have the Court declare as unconstitutional Section 3[a] of IPRA because the inclusion of
natural resources in the definition of ancestral domains purportedly results in the abdication of State ownership over
these resources.

Section 3[a] merely defines the coverage of ancestral domains, and describes the extent, limit and composition of
ancestral domains by setting forth the standards and guidelines in determining whether a particular area is to be
considered as part of and within the ancestral domains. In other words, Section 3[a] serves only as a yardstick
which points out what properties are within the ancestral domains. It does not confer or recognize any right of
ownership over the natural resources to the indigenous peoples. Its purpose is definitional and not declarative of a
right or title.

The specification of what areas belong to the ancestral domains is x x x important to ensure that no unnecessary
encroachment on private properties outside the ancestral domains will result during the delineation process. The
mere fact that Section 3[a] defines ancestral domains to include the natural resources found therein does not ipso
facto convert the character of such natural resources as private property of the indigenous peoples. Similarly,
Section 5 in relation to Section 3[a] cannot be construed as a source of ownership rights of indigenous peoples over
the natural resources simply because it recognizes ancestral domains as their “private but community property.”

The phrase “private but community property” is merely descriptive of the indigenous peoples’ concept of ownership
as distinguished from that provided in the Civil Code. x x x. In contrast, the indigenous peoples’ concept of
ownership emphasizes the importance of communal or group ownership. By virtue of the communal character of
ownership, the property held in common “cannot be sold, disposed or destroyed” because it was meant to benefit
the whole indigenous community and not merely the individual member.

That IPRA is not intended to bestow ownership over natural resources to the indigenous peoples is also clear from
the deliberations of the bicameral conference committee on Section 7 which recites the rights of indigenous peoples
over their ancestral domains x x x.

Further, Section 7 makes no mention of any right of ownership of the indigenous peoples over the natural resources.
In fact, Section 7[a] merely recognizes the “right to claim ownership over lands, bodies of water traditionally and
actually occupied by indigenous peoples, sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains.” Neither does Section 7[b], which enumerates certain
rights of the indigenous peoples over the natural resources found within their ancestral domains, contain any
recognition of ownership vis-à-vis the natural resources.

What is evident is that the IPRA protects the indigenous peoples’ rights and welfare in relation to the natural
resources found within their ancestral domains, including the preservation of the ecological balance therein and the
need to ensure that the indigenous peoples will not be unduly displaced when the State-approved activities involving
the natural resources located therein are undertaken.

10. Has the concept of native title to natural resources, like native title to land, been recognized in the
Philippines?

HELD: The concept of native title to natural resources, unlike native title to land, has not been recognized in the
Philippines. NCIP and Flavier, et al. invoke the case of Reavies v. Fianza (40 Phil. 1017 [1909], 215 US 16, 54 L Ed
72) in support of their thesis that native title to natural resources has been upheld in this jurisdiction. X x x.
However, a judicious examination of Reavies reveals that, contrary to the position of NCIP and Flavier, et al., the
Court did not recognize native title to natural resources. Rather, it merely upheld the right of the indigenous peoples
to claim ownership of minerals under the Philippine Bill of 1902.

While native title to land or private ownership by Filipinos of land by virtue of time immemorial possession in the
concept of an owner was acknowledged and recognized as far back during the Spanish colonization of the
Philippines, there was no similar favorable treatment as regards natural resources.

11. What is the underlying reason for the State’s consistent assertion of ownership and control over natural
resources from the Spanish regime up to the present?

HELD: The unique value of natural resources has been acknowledged by the State and is the underlying reason for
its consistent assertion of ownership and control over said natural resources from the Spanish regime up to the
present. Natural resources, especially minerals, were considered by Spain as an abundant source of revenue to
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Atty. Rene Callanta, Jr.
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finance its battle in wars against other nations. Hence, Spain, by asserting its ownership over minerals wherever
these may be found, whether in public or private lands, recognized the separability of title over lands and that over
minerals which may be found therein.

On the other hand, the United States viewed natural resources as a source of wealth for its nationals. As the owner
of natural resources over the Philippines after the latter’s cession from Spain, the United States saw it fit to allow
both Filipino and American citizens to explore and exploit minerals in public lands, and to grant patents to private
mineral lands. Although the United States made a distinction between minerals found in public lands and those found
in private lands, title in these minerals was in all cases sourced from the State. The framers of the 1935 Constitution
found it necessary to maintain the State’s ownership over natural resources to insure their conservation for future
generations of Filipinos, to prevent foreign control of the country through economic domination; and to avoid
situations whereby the Philippines would become a source of international conflicts, thereby posing danger to its
internal security and independence.

12. What was the basis for the early Spanish decrees embracing the theory of jura regalia? Is this also the
basis of the declaration in Section 2, Article XII of the 1987 Constitution that all lands of the public
domain are owned by the State? Consequently, did Spain acquire title over all lands in the Philippines
in the 16th century?

HELD: Dominium was the basis for the early Spanish decrees embracing the theory of jura regalia. The declaration
in Section 2, Article XII of the 1987 Constitution that all lands of the public domain are owned by the State is
likewise founded on dominium. If dominium, not imperium, is the basis of the theory of jura regalia, then the lands
which Spain acquired in the 16th century were limited to non-private lands, because it could only acquire lands which
were not yet privately-owned or occupied by the Filipinos. Hence, Spain acquired title only over lands which were
unoccupied and unclaimed, i.e., public lands.

8. HONEST PUBLIC SERVICE AND FULL PUBLIC DISCLOSURE

Art. II, Sec. 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft
and corruption.

Sec. 28. Subject to reasonable conditions prescribed by law, the State


adopts and implements a policy of full public disclosure of all its
transactions involving public interest.

Art. III, Sec. 7. The right of the people to information on matters of


public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as
may be provided by law.

Honesty of Public Officials

Art. XI, Sec. 17. 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 net worth. In the
case of the President, Vice- President, the Members of the Cabinet, the
Congress, the Supreme Court, the Constitutional Commissions and other
constitutional offices, and officers of the armed forces with general or flag
rank, the declaration shall be disclosed to the public in the manner
provided by law.

Art. VI, Sec. 12. All Members of the Senate and the House of
Representatives shall, upon assumption of office, make a full disclosure of
their financial and business interests. They shall notify the House
concerned of potential conflict of interest that may arise from the filing of
proposed legislation of which they are authors.

Sec. 20. The records and books of accounts of the Congress shall be
preserved and be open to the public in accordance with law, and such
books shall be audited by the Commission on Audit which shall publish
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Atty. Rene Callanta, Jr.
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annually an itemized list of amounts paid to and expenses incurred for


each Member.

Art. IX, D, Sec. 4. The Commission (on Audit) shall submit to the
President and the Congress, within the time fixed by law, an annual
report covering the financial condition and operation of the Government,
its subdivisions, agencies, and instrumentalities, including government-
owned or controlled corporations, and non-governmental entities subject
to its audit and recommend measures necessary to improve their
effectiveness and efficiency.

Art. XI, Sec. 4. The present anti-graft court known as the


Sandiganbayan shall continue to function and exercise its jurisdiction as
now or hereafter may be provided by law.

Sec. 5. There is hereby created the independent Office of the


Ombudsman, composed of the Ombudsman to be known as the
Tanodbayan, one overall Deputy and at least one Deputy each for Luzon,
Visayas and Mindanao. A separate Deputy for the military establishment
may likewise be appointed.

Sec. 7. The existing Tanodbayan shall hereafter be known as the Office


of the Special Prosecutor. It shall continue to function and exercise its
powers as now or hereafter may be provided by law, except those
conferred on the Office of the Ombudsman created under this
Constitution.

Sec. 12. The Ombudsman and his Deputies, as protectors of the people,
shall act promptly on complaints filed in any form or manner against
public officials or employees of the govt., or any subdivision, agency or
instrumentality thereof, including govt. owned or controlled corporations
and shall, in appropriate cases, notify the complainants of the action
taken and the result thereof.

Art. XI, Sec. 13. The Office of the Ombudsman shall have the following
powers, functions, duties:

(1) Investigate on its own or on complaint any act or omission of any


public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient

(2) Direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned or
controlled corporation with original charter; to perform and expedite any
act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a


public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.

(4) Direct the officer concerned in any appropriate case, and subject to
such limitations as may be provided by law, to furnish it with copies of
documents relating to contracts or transactions entered into by his office
involving disbursement or use of public funds or properties, and report
any irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for assistance and information


necessary in the discharge of its responsibilities, and to examine, if
necessary, pertinent records and documents.

(6) Publicize matters covered by its investigation when circumstances so


warrant and with due prudence.
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(7) Determine the causes of inefficiency, red tape, mismanagement,


fraud and corruption in the Government and make recommendations for
their elimination and the observance of high standards of ethics and
efficiency.

(8) Promulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law.

Sec. 15. The right of the State to recover properties unlawfully acquired
by public officials or employees, from them or their nominees, or
transferees, shall not be barred by prescription, laches, or estoppel.

Foreign Loans

Art. VII, Sec. 20. The President may contract or guarantee foreign
loans on behalf of the Republic with the prior concurrence of the
Monetary Board, and subject to such limitations as may be provided by
law. The Monetary Board shall, within thirty days form the end of every
quarter of the calendar year, submit to Congress a complete report of its
decisions on applications for loans to be contracted or guaranteed by the
government or government-owned and controlled corporations which
would have the effect of increasing the foreign debt, and containing other
matters as may be provided by law.

Art. XII, Sec. 21. Foreign loans may only be incurred in accordance
with law and the regulation of the monetary authority. Information on
foreign loans obtained or guaranteed by the Government shall be made
available to the public.

Executive Agreements on Natural Resources

Art. XII, Sec. 2.


xxx
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for large-
scale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions pro-
vided by law, based on real contributions to the economic growth and
general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical
resources.

The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.
(pars. 4 and 5 thereof.)
HAND OUT No. 4 – LEGISLATIVE DEPT. part I
By: Atty. Rene Callanta, Jr.
Constitutional Law I, 1st Semester, SY 2014-2015
P.U.P. College of Law

STRUCTURE AND POWERS OF THE


NATIONAL GOVERNMENT

A. LEGISLATIVE DEPARTMENT (Article VI)


INTRODUCTION

LEGISLATIVE POWER – Authority to make laws and to alter and repeal them

Advantages of BICAMERALISM
1. Allows for a body with a national perspective to check the parochial tendency of
representatives elected by district;
2. Allows a more careful study of legislation;
3. Makes the legislature less susceptible to control by the executive; and
4. Serves as a training ground for national leaders

Advantages of UNICAMERALISM
1. Simplicity of organization resulting in economy and efficiency;
2. Facility in pinpointing responsibility for legislation; and
3. Avoidance of duplication

Kinds of Legislative power


1. ORIGINAL – possessed by the sovereign people
2. DERIVATIVE – that which has been delegated by the sovereign people to
legislative bodies (Congress) and is subordinate to the original power of the
people

also

1. CONSTITUENT – power to amend and revise the constitution


2. ORDINARY – power to pass ordinary laws

• The people, through the amendatory process, exercise constituent power, and,
through initiative and referendum, ordinary legislative power

Kinds of limits on legislative power


1. SUBSTANTIVE LIMITS – curtail the contents of the law
Ex. “ No law may be passed which impairs freedom of speech”
2. PROCEDURAL LIMITS – curtail the manner of passing laws
Ex. A bill must generally be approved by the President before it becomes a law

• The power of congress to legislate is PLENARY, that is it may legislate on any


subject matter

• Congress may not pass irrepealable laws, the power of present and future
legislatures must remain plenary

• Legislative power may be delegated either by a specific constitutional provision or


by the immemorial practice of it being delegated to local governments

1. COMPOSITION, QUALIFICATIONS, AND TERM OF OFFICE

A. SENATE
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 2 of 44

Sec. 2. The Senate shall be composed of twenty-four Senators who


shall be elected at large by the qualified voters of the Philippines, as
may be provided by law.

Sec. 3. No person shall be a Senator unless he is a natural-born


citizen of the Philippines, and, on the day of the election, is at least
thirty-five years of age, able to read and write, a registered voter,
and a resident of the Philippines for not less than two years
immediately preceding the day of the election.

Sec. 4. The term of office of the Senators shall be six years and
shall commence, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election.

No Senator shall serve for more than two consecutive terms.


Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of his service for
the full term of which he was elected.

COMPOSITION

24 Senators elected at large by qualified voters

QUALIFICATIONS

Citizenship: Natural-born citizen


Age on the day of election: 35
Education: Able to read and write
Registered voter: In the Philippines
Residence: 2 years (immediately preceding the
election)

TERM OF OFFICE

Six (6) years

• To commence unless otherwise provided by law, at noon on June 30 next following


the election. (Art. VI, Sec. 4)

• Of the senators elected in the election of 1992, the first 12 obtaining the highest
number of votes shall serve for 6 years and the remaining 12 for 3 years.
Thereafter, 12 senators will be elected every 3 years, to serve a term of 6 years.
(Art. XVIII, Sec. 2)

• No Senator shall serve for more than 2 consecutive terms, and for this purpose,
no voluntary renunciation of the office for any length of time shall be considered
for the purpose of interrupting the continuity of his service for the full term for
which he was elected. (Art. VI, Sec. 4)

B. HOUSE OF REPRESENTATIVES

DISTRICT REPRESENTATIVES

Art. VI, Sec. 5 (1) The House of Representatives shall be composed


of not more than two hundred and fifty members, unless otherwise
fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
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inhabitants, and on the basis of a uniform and progressive ratio,


and those who, as provided by law, shall be elected through a
party-list system of registered national, regional, and sectoral
parties or organizations.

(3) Each legislative district shall comprise, as far as practicable,


contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each province,
shall have at least one representative.

(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts based
on the standard provided in this Section.

Sec. 6. No person shall be a Member of the House of Representatives


unless he is a natural-born citizen of the Philippines and, on the day
of the election, is at least twenty-five years of age, able to read and
write, and, except the party-list representatives, a registered voter
in the district in which he shall be elected, and a resident thereof for
a period of not less then one year immediately preceding the day of
the election.

Sec. 7. The Members of the House of Representatives shall be


elected for a term of three years which shall begin, unless
otherwise provided by law, at noon on the thirtieth day of June next
following their election.

No Member of the House of Representatives shall serve for more


than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in
the continuity of his service for the full term for which he was
elected.

COMPOSITION

Not more than 250 Members (*unless otherwise fixed by law) elected from:
a) Legislative districts (80% of the seats shall be allotted to district representatives.)
b) Party-list system of registered national, regional, and sectoral parties or
organizations. [Sec. 5(2)]

The districts are to be determined according to the following rules: [200 districts or
80%]

1. The districts are to be apportioned among the provinces, cities, and Metro Manila.
[Sec. 5(1)]

2. The apportionment must be based on the number of inhabitants, using a uniform and
progressive ratio. Within 3 years following the return of every census, Congress shall
make a reapportionment of legislative districts, based on the standards herein
provided (to make it representative and more responsive to the people). [Sec. 5 (4)]

3. Each legislative district must comprise as far as practicable, contiguous, compact,


and adjacent territory (to avoid gerrymandering, or putting together of areas where
a candidate is strong, even if these are not contiguous). [Sec. 5 (3)]

4. Each city with a population of at least 250,000 must have at least one representative.
[Sec. 5(3)]
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 4 of 44

5. Each province, regardless of population must have at least one representative. [Sec.
5(3)]

Aquino vs. COMELEC, GR No. 189793, April 7, 2010

FACTS: Petitioners seek the nullification as unconstitutional of Republic Act No. 9716, entitled "An Act
Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of
Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment."

Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs afoul of the explicit
constitutional standard that requires a minimum population of two hundred fifty thousand (250,000) for the
creation of a legislative district. The petitioners claim that the reconfiguration by Republic Act No. 9716 of the
first and second districts of Camarines Sur is unconstitutional, because the proposed first district will end up
with a population of less than 250,000 or only 176,383.

Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited 250,000 minimum
population standard.

HELD: Petition Denied. There is no specific provision in the Constitution that fixes a 250,000 minimum
population that must compose a legislative district.

The petitioners rely on the second sentence of Section 5(3), Article VI of the 1987 Constitution, coupled with
what they perceive to be the intent of the framers of the Constitution to adopt a minimum population of
250,000 for each legislative district.

The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: "Each city with a
population of at least two hundred fifty thousand, or each province, shall have at least one representative."

The provision draws a plain and clear distinction between the entitlement of a city to a district on one hand, and
the entitlement of a province to a district on the other. For while a province is entitled to at least a
representative, with nothing mentioned about population, a city must first meet a population minimum of
250,000 in order to be similarly entitled.

The use by the subject provision of a comma to separate the phrase "each city with a population of at least two
hundred fifty thousand" from the phrase "or each province" point to no other conclusion than that the 250,000
minimum population is only required for a city, but not for a province.

Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for a city to be
entitled to a representative, but not so for a province.

The 250,000 minimum population requirement for legislative districts in cities was, in turn, the subject of
interpretation by this Court in Mariano, Jr. v. COMELEC (242 SCRA 211).

In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which was the law that
converted the Municipality of Makati into a Highly Urbanized City. As it happened, Republic Act No. 7854 created
an additional legislative district for Makati, which at that time was a lone district. The petitioners in that case
argued that the creation of an additional district would violate Section 5(3), Article VI of the Constitution,
because the resulting districts would be supported by a population of less than 250,000, considering that Makati
had a total population of only 450,000. The Supreme Court sustained the constitutionality of the law and the
validity of the newly created district, explaining the operation of the Constitutional phrase "each city with a
population of at least two hundred fifty thousand," to wit:

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section
5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at
only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city with a population of at
least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the
population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district
may still be increased since it has met the minimum population requirement of two hundred fifty thousand
(250,000). In fact, Section 3 of the Ordinance appended to the Constitution provides that a city whose
population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one
congressional representative.28 (Emphasis supplied)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 5 of 44

The Mariano case limited the application of the 250,000 minimum population requirement for cities only to its
initial legislative district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have
a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population
by another 250,000 to be entitled to an additional district.

There is no reason why the Mariano case, which involves the creation of an additional district within a city,
should not be applied to additional districts in provinces. Indeed, if an additional legislative district created
within a city is not required to represent a population of at least 250,000 in order to be valid, neither should
such be needed for an additional district in a province, considering moreover that a province is entitled to an
initial seat by the mere fact of its creation and regardless of its population.

Apropos for discussion is the provision of the Local Government Code on the creation of a province which, by
virtue of and upon creation, is entitled to at least a legislative district. Thus, Section 461 of the Local
Government Code states:

Requisites for Creation. – (a) A province may be created if it has an average annual income, as certified
by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991
constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands
Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the
National Statistics Office.

Notably, the requirement of population is not an indispensable requirement, but is merely an alternative
addition to the indispensable income requirement.

Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the deliberations on the
words and meaning of Section 5 of Article VI.

QUALIFICATIONS

Citizenship: Natural-born citizen


Age on the day of election: 25
Education: Able to read and write
Registered voter: In the district, if district
representative
Residence: 1 year in the district
(immediately preceding the election)

TERM OF OFFICE

3 years

• To commence (unless otherwise provided by law) at noon of June 30 next


following the election. (Art. VI, Sec. 7)

• No Member of the House shall serve for more than 3 consecutive terms. No
voluntary renunciation of the office for any length of time shall be considered an
interruption in the continuity of his service for the full term for which he was
elected for the purpose of circumventing this 3-term limitation. (Art. VI, Sec. 7)

Romualdez-Marcos vs. COMELEC, G.R. No. 119976, September 18, 1995 (248 SCRA 300)

ISSUE: The residency requirement of Former First Lady Imelda Marcos is being questioned in this case.

HELD: The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a
registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than
one year immediately preceding the election." The mischief which this provision seeks to prevent is the
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
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possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that community."

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of
settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement
with the general proposition that for the purposes of election law, residence is synonymous with domicile, the
Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence, a
conception not intended for the purpose of determining a candidate's qualifications for election to the House of
Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of meeting the
qualification for an elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations,
the domicile of natural persons is their place of habitual residence." In Ong vs. Republic (19 SCRA 966) this
court, took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever
absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense
that they disclose intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or
physical presence in a fixed place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the
physical presence of a person in a given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health.
If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is
established it is residence. It is thus, quite perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic (95 Phil. 890), we laid
this distinction quite clearly:

"There is a difference between domicile and residence. Residence is used to indicate a place of
abode, whether permanent or temporary; 'domicile' denotes a fixed permanent residence to
which, when absent, one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile is residence coupled
with the intention to remain for an unlimited time. A man can have but one domicile for the
same purpose at any time, but he may have numerous places of residence. His place of
residence is generally his place of domicile, but it is not by any means necessarily so since no
length of residence without intention of remaining will constitute domicile."

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political
laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the
fact that residence for election purposes is used synonymously with domicile.

In Nuval vs. Guray (52 Phil. 645), the Court held that "the term residence . . . is synonymous with domicile
which imports not reside in a fixed place, but also personal presence in that place, coupled with conduct
indicative of such intention." Larena vs. Teves (61 Phil. 36) reiterated the same doctrine in a case involving the
qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros Oriental.
Faypon vs. Quirino (96 Phil. 294), held that the absence from residence to pursue studies or practice a
profession or registration as a voter other than in the place where one is elected does not constitute loss of
residence. So settled is the concept (of domicile) in our election law that in these and other election law cases,
this Court has stated that the mere absence of an individual from his permanent residence without the intention
to abandon it does not result in a loss or change of domicile.

The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have
placed beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually
means only "domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention,
there was an attempt to require residence in the place not less than one year immediately
preceding the day of the elections. So my question is: What is the Committee's concept of
residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile
or constructive residence?

Mr. Davide: Madame President., insofar as the regular members of the National Assembly are
concerned, the proposed section merely provides, among others, 'and a resident thereof', that
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Atty. Rene Callanta, Jr.
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Page 7 of 44

is, in the district for a period of not less than one year preceding the day of the election. This
was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile.
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7 page 2. I think Commissioner Nolledo has
raised the same point that "resident" has been interpreted at times as a matter of intention
rather than actual residence.

Mr. De los Reyes: Domicile

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to
actual residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision
in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as
enacted by law. So, we have to stick to the original concept that it should be by domicile and
not physical residence. 30

In Co vs. Electoral Tribunal of the House of Representatives (199 SCRA 692), this Court concluded that the
framers of the 1987 Constitution obviously adhered to the definition given to the term residence in election law,
regarding it as having the same meaning as domicile.

Domino vs. COMELEC, G.R. No.134015, July 19,1999 (310 SCRA 546)

• Concept of Residence and Domicile

HELD: It is doctrinally settled that the term "residence," as used in the law prescribing the qualifications for
suffrage and for elective office, means the same thing as "domicile," which imports not only an intention to
reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such
intention. "Domicile" denotes a fixed permanent residence to which, whenever absent for business, pleasure, or
some other reasons, one intends to return. "Domicile" is a question of intention and circumstances. In the
consideration of circumstances, three rules must be borne in mind, namely: (1) that a man must have a
residence or domicile somewhere; (2) when once established it remains until a new one is acquired; and (3) a
man can have but one residence or domicile at a time.

Records show that petitioner’s domicile of origin was Candon, Ilocos Sur and that sometime in 1991, he
acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his
certificate of candidacy for the position of representative of the 3rd District of Quezon City in the May 1995
election. Petitioner is now claiming that he had effectively abandoned his "residence" in Quezon City and has
established a new "domicile" of choice at the Province of Sarangani.

A person’s "domicile" once established is considered to continue and will not be deemed lost until a new one is
established. To successfully effect a change of domicile one must demonstrate an actual removal or an actual
change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new
one and definite acts which correspond with the purpose. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for
an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen
for the new domicile must be actual.

It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since December 1996 was
sufficiently established by the lease of a house and lot located therein in January 1997 and by the affidavits and
certifications under oath of the residents of that place that they have seen petitioner and his family residing in
their locality.

While this may be so, actual and physical is not in itself sufficient to show that from said date he had
transferred his residence in that place. To establish a new domicile of choice, personal presence in the place
must be coupled with conduct indicative of that intention. While "residence" simply requires bodily presence in a
given place, "domicile" requires not only such bodily presence in that place but also a declared and probable
intent to make it one’s fixed and permanent place of abode, one’s home.

As a general rule, the principal elements of domicile, physical presence in the locality involved and intention to
adopt it as a domicile, must concur in order to establish a new domicile. No change of domicile will result if
either of these elements is absent. Intention to acquire a domicile without actual residence in the locality does
not result in acquisition of domicile, nor does the fact of physical presence without intention.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
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The lease contract entered into sometime in January 1997, does not adequately support a change of domicile.
The lease contract may be indicative of DOMINO’s intention to reside in Sarangani but it does not engender the
kind of permanency required to prove abandonment of one’s original domicile. The mere absence of individual
from his permanent residence, no matter how long, without the intention to abandon it does not result in loss
or change of domicile. Thus the date of the contract of lease of a house and lot located in the province of
Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as the reckoning
period of the one-year residence requirement.

Further, Domino’s lack of intention to abandon his residence in Quezon City is further strengthened by his act of
registering as voter in one of the precincts in Quezon City. While voting is not conclusive of residence, it does
give rise to a strong presumption of residence especially in this case where DOMINO registered in his former
barangay. Exercising the right of election franchise is a deliberate public assertion of the fact of residence, and
is said to have decided preponderance in a doubtful case upon the place the elector claims as, or believes to be,
his residence. The fact that a party continuously voted in a particular locality is a strong factor in assisting to
determine the status of his domicile.

His claim that his registration in Quezon City was erroneous and was caused by events over which he had no
control cannot be sustained. The general registration of voters for purposes of the May 1998 elections was
scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21, and 22.

While, Domino’s intention to establish residence in Sarangani can be gleaned from the fact that be bought the
house he was renting on November 4, 1997, that he sought cancellation of his previous registration in Quezon
City on 22 October 1997, 34 and that he applied for transfer of registration from Quezon City to Sarangani by
reason of change of residence on 30 August 1997, 35 DOMINO still falls short of the one year residency
requirement under the Constitution.

In showing compliance with the residency requirement, both intent and actual presence in the district one
intends to represent must satisfy the length of time prescribed by the fundamental law. Domino’s failure to do
so rendered him ineligible and his election to office null and void.

Dimaporo vs. Mitra, G.R. No. 96859, October 15, 1991 (202 SCRA 779)

FACTS: Petitioner Mohammad Ali Dimaporo was elected Representative for the 2nd Legislative District of Lanao
del Sur during the 1987 congressional elections.

In Jan., 1990, petitioner filed with the COMELEC a Certificate of Candidacy for the position of Regional Governor
of the Autonomous Region in Muslim Mindanao. Upon being informed of such development by the COMELEC,
respondents Speaker and Secretary of the House of Reps. excluded petitioner's name from the Roll of Members
of the House of Reps. pursuant to Sec. 67, Article IX of the Omnibus Election Code (B.P. Blg. 881)

Having lost in the elections, petitioner then tried but failed in his bid to regain his seat in Congress. Hence, this
petition. He maintains that he did not lose his seat as congressman because Sec. 67, Art. IX of B.P. Blg. 881 is
not operative under the present Constitution, being contrary thereto, and therefore not applicable to the
present members of Congress.

ISSUE: Whether Sec. 67, Art. IX of B.P. Blg. 881 is operative under the present Constitution

HELD: YES. Sec. 67, Art. IX of B.P. Blg. 881 reads: "Any elective official whether national or local running for
any office other than the one which he is holding in a permanent capacity except for President and Vice-
President shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy."

Petitioner failed to discern that rather than cut short the term of office of elective public officials, this statutory
provision seeks to ensure that such officials serve out their entire term of office and thereby cutting short their
tenure by making it clear that should they fail in their candidacy, they cannot go back to their former position.
This is in consonant with the constitutional edict that all public officials must serve the people with utmost
loyalty and not trifle with the mandate which they have received from their constituents.

In theorizing that the provision under consideration cuts short the term of office of a Member of Congress,
petitioner seems to confuse "term" with "tenure" of office.

"The term of office prescribed by the Constitution may not be extended or shortened by the
legislature, but the period during which an officer actually holds the office (tenure), may be
affected by circumstances within or beyond the power of said officer. These situations will not
change the duration of the term of office."
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
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Under the questioned provision, when an elective official covered thereby files a cert. of candidacy for another
office, he is deemed to have voluntarily cut short his tenure, not his term. The term remains and his successor,
if any, is allowed to serve its unexpired portion.

The fact that the ground cited in Sec. 67, Art. IX of B.P. Blg. 881 is not mentioned in the Constitution itself as a
mode of shortening the tenure of office of the members of Congress does not preclude its application to present
members of Congress. Sec. 2, Art. IX of the Constitution provides that "xxx All other public officers and
employees may be removed from office as provided by law, but not by impeachment." Such constitutional
expression clearly recognizes that the 4 grounds found in Art. VI of the Constitution by which the tenure of a
Congressman may be shortened are NOT exclusive.

Moreover, as the mere act of filing the certificate of candidacy for another office produces automatically the
permanent forfeiture of the elective position being presently held, it is not necessary that the other position be
actually held. The ground for forfeiture in Sec. 13, Art. VI of the Constitution is different from the forfeiture
decreed in Sec. 67, Art. IX of B.P. Blg. 881, which is actually a mode of voluntary renunciation of office under
Sec. 7, par. 2 of Art. VI of the Constitution.

PARTY LIST REPRESENTATIVES

Art. VI, Sec. 5 (2) The party-list representatives shall constitute


twenty per centum of the total number or representatives including
those under the party list. xxx

Art IX-C.
Sec. 6. A free and open party system shall be allowed to evolve
according to the free choice of the people, subject to the provisions
of this Article.

Sec. 7. No votes cast in favor of a political party, organization, or


coalition shall be valid, except for those registered under the party-
list system as provided in this Constitution.

Sec. 8. Political parties, or organizations or coalitions registered


under the party-list system, shall not be represented in the voters'
registration boards, boards of election inspectors, board of
canvassers, or other similar bodies. However, they shall be entitled
to appoint poll watchers in accordance with law.

READ: Republic Act No. 7941- "PARTY-LIST SYSTEM ACT."

What is the Party-List System?

The party-list system is a social justice tool designed not only to give more law to the
great masses of our people who have less in life, but also to enable them to become
veritable lawmakers themselves, empowered to participate directly in the enactment of
laws designed to benefit them. It intends to make the marginalized and the
underrepresented not merely passive recipients of the State’s benevolence, but active
participants in the mainstream of representative democracy. Thus, allowing all
individuals and groups, including those which now dominate district elections, to have
the same opportunity to participate in party-list elections would desecrate this lofty
objective and mongrelize the social justice mechanism into an atrocious veneer for
traditional politics. (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26,
2001)

What is the State policy with regards to the Party-List System?

The State shall promote proportional representation in the election of representatives to


the House of Representatives through a party-list system of registered national, regional
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
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and sectoral parties or organizations or coalitions thereof, which will enable Filipino
citizens belonging to marginalized and underrepresented sectors, organizations and
parties, and who lack well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives. Towards this end, the
State shall develop and guarantee a full, free and open party system in order to attain
the broadest possible representation of party, sectoral or group interest in the House of
Representatives by enhancing their chances to compete for and win seats in the
legislature, and shall provide the simplest scheme possible. (Sec. 2, RA 7941)

What is the objective of the party list system under the 1987 constitution?

To democratize political power by giving political parties that cannot win in legislative
district elections a chance to win seats in the House of Representatives.

The 1987 constitution provides the basis for the party-list system of representation.
Simply put, the party-list system is intended to democratize political power by giving
political parties that cannot win in legislative district elections a chance to win seats in
the House of Representatives. The voter elects two representatives in the House of
Representatives: one for his or her legislative district, and another for his or her party-
list group or organization of choice. (Paglaum vs. COMELEC, GR No. 203766, April 2, 2013)

How may an organized group of persons participate under the Party-List


System?

Any organized group of persons may register as a party, organization or coalition for
purposes of the party-list system by filing with the COMELEC not later than ninety (90)
days before the election a petition verified by its president or secretary stating its desire
to participate in the party-list system as a national, regional or sectoral party or
organization or a coalition of such parties or organizations, attaching thereto its
constitution, by-laws, platform or program of government, list of officers, coalition
agreement and other relevant information as the COMELEC may require: Provided, That
the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals.

The COMELEC shall publish the petition in at least two (2) national newspapers of
general circulation.

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15)
days from the date it was submitted for decision but in no case not later than sixty (60)
days before the election. (Sec. 5, RA 7941)

Who are included in the party list system?

Sectoral and Non-Sectoral parties.

Indisputably, the framers of the 1987 constitution intended the party-list system to
include not only sectoral parties but also non-sectoral parties. The framers intended the
sectoral parties to constitute a part, but not the entirety, of the party-list system. As
explained by commissioner Wilfredo Villacorta, political parties can participate in the
party-list system “[f]or as long as they field candidates who come from the different
marginalized sectors that we shall designate in this constitution.”

Thus, in the end, the proposal to give permanent reserved seats to certain sectors was
out voted. Instead, the reservation of seats to sectoral representatives was only allowed
for the first three consecutive terms.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
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There can be no doubt whatsoever that the framers of the 1987 constitution expressly
rejected the proposal to make the party-list system exclusively for sectoral parties only,
and that they clearly intended the party-list system to include both sectoral and non-
sectoral parties. (Paglaum vs. COMELEC, GR No. 203766, April 2, 2013)

What is the common denominator between sectoral and non-sectoral parties?

The common denominator between sectoral and non-sectoral parties is that they cannot
expect to win in legislative district elections but they can garner, in nationwide elections,
at least the same number of votes that winning candidates can garner in legislative
district elections. The party-list system will be the entry point to membership in the
House of Representatives for both these non-traditional parties that could not compete in
legislative district elections. (Paglaum vs. COMELEC, GR No. 203766, April 2, 2013)

What compose the party list system?

Three different groups: (1) National parties or organizations; (2) Regional parties or
organizations; and (3) Sectoral parties or organizations.

National and Regional parties or organizations are different from sectoral parties or
organizations. National and regional parties or organizations need not be organized along
sectoral lines and need not represent any particular sector. (Paglaum vs. COMELEC, GR No.
203766, April 2, 2013)

What is the proof that the party list system is not exclusively for sectoral
parties?

Section 5(2), Article VI of the 1987 Constitution which mandates that, during the first
three consecutive terms of congress after the ratification of the 1987 Constitution, “one-
half of the seats allocated to party-list representatives shall be filled, as provided by law,
by selection or election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law, except
the religious sector.”

This provision clearly shows again that the party-list system is not exclusively for
sectoral parties for two obvious reasons.

First, the other one-half of the seats allocated to party-list representatives would
naturally be open to non-sectoral party-list representatives, clearly negating the idea
that the party-list system is exclusively for sectoral parties representing the
“marginalized and underrepresented.”

Second, the reservation of one-half of the party-list seats to sectoral parties applies only
for the first “three consecutive terms after the ratification of this constitution,” clearly
making the party-list system fully open after the end of the first three congressional
terms. This means that, after this period, there will be no seats reserved for any class or
type of party that qualifies under the three groups constituting the party-list system.

Hence, the clear intent, express wording, and party-list structure ordained in Section
5(1) and (2), Article VI of the 1987 Constitution cannot be disputed: the party-list
system is not for sectoral parties only, but also for non-sectoral parties. (Paglaum vs.
COMELEC, GR No. 203766, April 2, 2013)

What is the difference between a political party and a sectoral party?

R.A. no. 7941 provides different definitions for a political and a sectoral party. Obviously,
they are separate and distinct from each other.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
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Political party refers to an organized group of citizens advocating an ideology or


platform, principles and policies for the general conduct of government.”

A Sectoral party refers to an organized group of citizens belonging to any of the sectors
enumerated in section 5 hereof whose principal advocacy pertains to the special interest
and concerns of their sector.”

Section 3(a) of R.A. no. 7941 defines a “party” as “either a political party or a sectoral
party or a coalition of parties.” Clearly, a political party is different from a sectoral party.
Section 3(c) of R.A. no. 7941 further provides that a “political party refers to an
organized group of citizens advocating an Ideology or platform, principles and policies for
the general conduct of government.”

On the other hand, section 3(d) of R.A. no. 7941 provides that a “sectoral party refers to
an organized group of citizens belonging to any of the sectors enumerated in section 5
hereof whose principal advocacy pertains to the special interest and concerns of their
sector.” (Paglaum vs. COMELEC, GR No. 203766, April 2, 2013)

What type of Major Political Parties are allowed to participate in the Partylist
system?

The major political parties are those that field candidates in the legislative district
elections. Major political parties cannot participate in the party-list elections since they
neither lack "well-defined political constituencies" nor represent "marginalized and
underrepresented" sectors. Thus, the national or regional parties under the party-
list system are necessarily those that do not belong to major political parties.
This automatically reserves the national and regional parties under the party-list system
to those who "lack well-defined political constituencies," giving them the opportunity to
have members in the House of Representatives.

Section 11 of R.A. No. 7941 expressly prohibited the "first five (5) major political
parties on the basis of party representation in the House of Representatives at the start
of the Tenth Congress" from participating in the May 1988 party-list elections. Thus,
major political parties can participate in subsequent party-list elections since
the prohibition is expressly limited only to the 1988 party-list elections.
However, major political parties should participate in party-list elections only through
their sectoral wings. The participation of major political parties through their sectoral
wings, a majority of whose members are "marginalized and underrepresented" or lacking
in "well-defined political constituencies," will facilitate the entry of the "marginalized and
underrepresented" and those who "lack well-defined political constituencies" as members
of the House of Representatives.

The 1987 Constitution and R.A. No. 7941 allow major political parties to participate in
party-list elections so as to encourage them to work assiduously in extending their
constituencies to the "marginalized and underrepresented" and to those who "lack well-
defined political constituencies." The participation of major political parties in party-list
elections must be geared towards the entry, as members of the House of
Representatives, of the "marginalized and underrepresented" and those who "lack well-
defined political constituencies," giving them a voice in law-making. Thus,to participate
in party-list elections, a major political party that fields candidates in the legislative
district elections must organize a sectoral wing, like a labor, peasant, fisherfolk, urban
poor, professional, women or youth wing, that can register under the party-list system.

Such sectoral wing of a major political party must have its own constitution, by-laws,
platform or program of government, officers and members, a majority of whom must
belong to the sector represented. The sectoral wing is in itself an independent sectoral
party, and is linked to a major political party through a coalition. This linkage is allowed
by Section 3 of R.A. No. 7941, which provides that "component parties or organizations
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 13 of 44

of a coalition may participate independently (in party-list elections) provided the coalition
of which they form part does not participate in the party-list system." (Paglaum vs.
COMELEC, GR No. 203766, April 2, 2013)

Does R.A. no. 7941 require national and regional parties to represent the
marginalized and underrepresented sectors?

No. R.A. no. 7941 does not require national and regional parties or organizations to
represent the “marginalized and underrepresented” sectors. To require all national and
regional parties under the party-list system to represent the “marginalized and
underrepresented” is to deprive and exclude, by judicial fiat, ideology-based and cause-
oriented parties from the party-list system. How will these ideology-based and cause-
oriented parties, who cannot win in legislative district elections, participate in the
electoral process if they are excluded from the party-list system? To exclude them from
the partylist system is to prevent them from joining the parliamentary struggle, leaving
as their only option the armed struggle. To exclude them from the party-list system is,
apart from being obviously senseless, patently contrary to the clear intent and express
wording of the 1987 Constitution and R.A. no. 7941. Under the party-list system, an
ideology-based or cause-oriented political party is clearly different from a sectoral party.
A political party need not be organized as a sectoral party and need not represent any
particular sector. There is no requirement in R.A. no. 7941 that a national or regional
political party must represent a “marginalized and underrepresented” sector. It is
sufficient that the political party consists of citizens who advocate the same ideology or
platform, or the same governance principles and policies, regardless of their economic
status as citizens.

Section 5 of R.A. no. 7941 states that “the sectors shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals.” The sectors mentioned in section
5 are not all necessarily “marginalized and underrepresented.” For sure, “professionals”
are not by definition “marginalized and underrepresented,” not even the elderly, women,
and the youth. However, professionals, the elderly, women, and the youth may “lack
well-defined political constituencies,” and can thus organize themselves into sectoral
parties in advocacy of the special interests and concerns of their respective sectors.

Section 6 of R.A. no. 7941 provides another compelling reason for holding that the law
does not require national or regional parties, as well as certain sectoral parties in section
5 of R.A. no. 7941, to represent the “marginalized and underrepresented.” Section 6
provides the grounds for the COMELEC to refuse or cancel the registration of parties or
organizations after due notice and hearing. (Paglaum vs. COMELEC, GR No. 203766, April 2,
2013)

What is the consequence if we interpret that all the sectors mentioned in


section 5 are marginalized and underrepresented?

It would lead to absurdities. The phrase "marginalized and underrepresented"


appears only once in R.A. No. 7941, in Section 2 on Declaration of Policy. Section 2
seeks "to promote proportional representation in the election of representatives to the
House of Representatives through the party-list system," which will enable Filipinos
belonging to the "marginalized and underrepresented sectors, organizations and
parties, and who lack well-defined political constituencies," to become members
of the House of Representatives. While the policy declaration in Section 2 of R.A. No.
7941 broadly refers to "marginalized and underrepresented sectors, organizations and
parties," the specific implementing provisions of R.A. No. 7941 do not define or require
that the sectors, organizations or parties must be "marginalized and underrepresented."
On the contrary, to even interpret that all the sectors mentioned in Section 5 are
"marginalized and underrepresented" would lead to absurdities. (Paglaum vs. COMELEC, GR
No. 203766, April 2, 2013)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 14 of 44

To what does the phrase marginalized and underrepresented refer to taking


into account the broad policy declaration in section 2 of R.A. no. 7941 with its
specific implementing provisions, bearing in mind the applicable provisions of
the 1987 Constitution on the matter?

The phrase "marginalized and underrepresented" should refer only to the sectors
in Section 5 that are, by their nature, economically "marginalized and
underrepresented." These sectors are: labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, overseas workers, and other
similar sectors. For these sectors, a majority of the members of the sectoral party
must belong to the "marginalized and underrepresented." The nominees of the
sectoral party either must belong to the sector, or must have a track record of
advocacy for the sector represented. Belonging to the "marginalized and
underrepresented" sector does not mean one must "wallow in poverty, destitution or
infirmity." It is sufficient that one, or his or her sector, is below the middle class. More
specifically, the economically "marginalized and underrepresented" are those who fall in
the low income group as classified by the National Statistical Coordination Board.

The recognition that national and regional parties, as well as sectoral parties of
professionals, the elderly, women and the youth, need not be "marginalized and
underrepresented" will allow small ideology-based and cause-oriented parties who lack
"well-defined political constituencies" a chance to win seats in the House of
Representatives. On the other hand, limiting to the "marginalized and underrepresented"
the sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas workers, and other sectors that by their
nature are economically at the margins of society, will give the "marginalized and
underrepresented" an opportunity to likewise win seats in the House of Representatives.
(Paglaum vs. COMELEC, GR No. 203766, April 2, 2013)

How about sectoral parties of professionals, the elderly, women and the youth,
do they need to be marginalized?

No. They belong to ideology-based and cause oriented parties. Allowing them to run as
party list will give small ideology-based and cause-oriented parties who lack “well-
defined political constituencies” a chance to win seats in the house of representatives.

The recognition that national and regional parties, as well as sectoral parties of
professionals, the elderly, women and the youth, need not be “marginalized and
underrepresented” will allow small ideology-based and cause-oriented parties who lack
“well-defined political constituencies” a chance to win seats in the House of
Representatives. On the other hand, limiting to the “marginalized and underrepresented”
the sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas workers, and other sectors that by their
nature are economically at the margins of society, will give the “marginalized and
underrepresented” an opportunity to likewise win seats in the house of representatives.
This interpretation will harmonize the 1987 Constitution and R.A. no. 7941 and will give
rise to a multi-party system where those “marginalized and underrepresented,” both in
economic and ideological status, will have the opportunity to send their own members to
the house of representatives. (Paglaum vs. COMELEC, GR No. 203766, April 2, 2013)

Does a registered Party-List group need to register again before every


elections?

Any party, organization, or coalition already registered with the Commission need not
register anew. However, such party, organization, or coalition shall file with the
Commission, not later than ninety (90) days before the election, a manifestation of its
desire to participate in the party-list system. (Sec 4, RA 7941)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 15 of 44

What are the grounds for refusal or cancelation of any application of any group
in the Party-List System?

The COMELEC may, motu proprio, or upon verified complaint of any interested party,
refuse or cancel, after due notice and hearing, the registration of any national, regional
or sectoral party, organization or coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association


organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political


party, foundation, organization, whether directly or though any of its
officers or member or indirectly though third parties for partisan
election purposes.

(5) It violates or fails to comply with laws, rules or regulations relating to


elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to
obtain at least two percentum (2%) of the votes cast under the party-
list system in the two (2) preceding elections for the constituency in
which it has registered. (Sec. 6, RA 7941)

Who may be a Party-list Nominee/s?

No person shall be nominated as party-list representative unless he is a natural-born


citizen of the Philippines, a registered voter, a resident of the Philippines for a period of
not less than one (1) year immediately preceding the day of the election, able to read
and write, a bona fide member of the party or organization which he seeks to represent
for at least ninety (90) days preceding the day of the election, and is at least twenty-five
(25) years of age on the day of the election.

In case of a nominee of the youth sector, he must be at least be twenty-five (25) but not
more than thirty (30) years of age on the day of the election. Any youth sectoral
representative who attains the age of thirty (30) during his term shall be allowed to
continue in office until the expiration of his term. (Sec. 9, RA 7941)

The nominees of the sectoral party either must belong to the sector, or must have a
track record of advocacy for the sector represented. Belonging to the "marginalized and
underrepresented" sector does not mean one must "wallow in poverty, destitution or
infirmity." It is sufficient that one, or his or her sector, is below the middle class. (Paglaum
vs. COMELEC, GR No. 203766, April 2, 2013)

What is the procedure for the nomination of Party-List Representatives?

Each registered party, organization, or coalition shall submit to the COMELEC not later
than forty-five (45) days before the election a list of names, not less than five (5), from
which party-list representatives shall be chosen in case it obtains the required number of
votes.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 16 of 44

A person may be nominated in one (1) list only. Only persons who have given their
consent in writing may be named in the list. The list shall not include any candidate for
any elective office or a person who has lost his bid for an elective office in the
immediately preceding election. No change of names or alteration of the order of
nominees shall be allowed after the same shall have been submitted to the COMELEC
except in cases where the nominee dies, or withdraws in writing his nomination,
becomes incapacitated in which case the name of the substitute nominee shall be placed
in the list. Incumbent sectoral representatives in the House of Representatives who are
nominated in the party-list system shall not be considered resigned. (Sec. 8, RA 7941)

What are the guidelines for screening Party-List participants (ALREADY


MODIFIED BY NEW RULING OF THE SUPREME COURT)

In this light, the Court finds it appropriate to lay down the following guidelines, culled
from the law and the Constitution, to assist the Comelec in its work.

First, the political party, sector, organization or coalition must represent the marginalized
and underrepresented groups identified in Section 5 of RA 7941. In other words, it must
show – through its constitution, articles of incorporation, bylaws, history, platform of
government and track record – that it represents and seeks to uplift marginalized and
underrepresented sectors. Verily, majority of its membership should belong to the
marginalized and underrepresented. And it must demonstrate that in a conflict of
interest, it has chosen or is likely to choose the interest of such sectors.

Second, while even major political parties are expressly allowed by RA 7941 and the
Constitution to participate in the party-list system, they must comply with the declared
statutory policy of enabling “Filipino citizens belonging to marginalized and
underrepresented sectors x x x to be elected to the House of Representatives.” In other
words, while they are not disqualified merely on the ground that they are political
parties, they must show, however, that they represent the interests of the marginalized
and underrepresented. X x x

Third, in view of the objections directed against the registration of Ang Buhay Hayaang
Yumabong, which is allegedly a religious group, the Court notes the express
constitutional provision that the religious sector may not be represented in the party-list
system. x x x

Furthermore, the Constitution provides that “religious denominations and sects shall not
be registered.” (Sec. 2 [5], Article IX [C]) The prohibition was explained by a member of the
Constitutional Commission in this wise: “[T]he prohibition is on any religious organization
registering as a political party. I do not see any prohibition here against a priest running
as a candidate. That is not prohibited here; it is the registration of a religious sect as a
political party.”

Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941,


which enumerates the grounds for disqualification as follows:

1) It is a religious sect or denomination, organization or association organized for


religious purposes;
2) It advocates violence or unlawful means to seek its goal;
3) It is a foreign party or organization;
4) It is receiving support from any foreign government, foreign political party,
foundation, organization, whether directly or through any of its officers or
members or indirectly through third parties for partisan election purposes;
5) It violates or fails to comply with laws, rules or regulations relating to
elections;
6) It declares untruthful statements in its petition;
7) It has ceased to exist for at least one (1) year; or
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 17 of 44

8) It fails to participate in the last two (2) preceding elections or fails to obtain at
least two per centum (2%) of the votes cast under the party-list system in the
two (2) preceding elections for the constituency in which it had registered.”

Note should be taken of paragraph 5, which disqualifies a party or group for violation of
or failure to comply with election laws and regulations. These laws include Section 2 of
RA 7941, which states that the party-list system seeks to “enable Filipino citizens
belonging to marginalized and underrepresented sectors, organizations and parties x x x
to become members of the House of Representatives.” A party or organization,
therefore, that does not comply with this policy must be disqualified.

Fifth, the party or organization must not be an adjunct of, or a project organized or an
entity funded or assisted by, the government. By the very nature of the party-list
system, the party or organization must be a group of citizens, organized by citizens and
operated by citizens. It must be independent of the government. The participation of
the government or its officials in the affairs of a party-list candidate is not only illegal
and unfair to other parties, but also deleterious to the objective of the law: to enable
citizens belonging to marginalized and underrepresented sectors and organization to be
elected to the House of Representatives.

Sixth, the party must not only comply with the requirements of the law; its nominees
must likewise do so. x x x

Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA
7941, the nominees must be Filipino citizens “who belong to marginalized and
underrepresented sectors, organizations and parties.” Surely, the interests of the youth
cannot be fully represented by a retiree; neither can those of the urban poor or the
working class, by an industrialist. To allow otherwise is to betray the State policy to give
genuine representation to the marginalized and underrepresented.

Eighth, x x x while lacking a well-defined political constituency, the nominee must


likewise be able to contribute to the formulation and enactment of appropriate legislation
that will benefit the nation as a whole. (Ang Bagong Bayani – OFW Labor Party v. COMELEC,
G.R. No. 147589, June 26, 2001)

WHAT ARE NOW THE NEW PARAMETERS TO BE FOLLOWED BY COMELEC?

1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or
organizations.

2. National parties or organizations and regional parties or organizations do not need to


organize along sectoral lines and do not need to represent any “marginalized and
underrepresented” sector.

3. Political parties can participate in party-list elections provided they register under the
party-list system and do not field candidates in legislative district elections. A
political party, whether major or not, that fields candidates in legislative district
elections can participate in partylist elections only through its sectoral wing that can
separately register under the party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be “marginalized and underrepresented”


or lacking in “well-defined political constituencies.” It is enough that their principal
advocacy pertains to the special interest and concerns of their sector. The sectors
that are “marginalized and underrepresented” include labor, peasant, fisherfolk,
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 18 of 44

urban poor, indigenous cultural communities, handicapped, veterans, and overseas


workers. The sectors that lack “well-defined political constituencies” include
professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the


“marginalized and underrepresented” must belong to the “marginalized and
underrepresented” sector they represent. Similarly, a majority of the members of
sectoral parties or organizations that lack “well-defined political constituencies” must
belong to the sector they represent. The nominees of sectoral parties or
organizations that represent the “marginalized and underrepresented,” or that
represent those who lack “well-defined political constituencies,” either must belong
to their respective sectors, or must have a track record of advocacy for their
respective sectors. The nominees of national and regional parties or organizations
must be bona-fide members of such Parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if


some of their nominees are disqualified, provided that they have at least one
nominee who remains qualified.

What is the duty of the COMELEC with regards to Party-List groups qualified to
participate in a election?

The COMELEC shall, not later than sixty (60) days before election, prepare a certified list
of national, regional, or sectoral parties, organizations or coalitions which have applied or
who have manifested their desire to participate under the party-list system and
distribute copies thereof to all precints for posting in the polling places on election day.
The names of the party-list nominees shall not be shown on the certified list.

What are the four (4) inviolable parameters to determine the winners in a
Philippine-style Party-List election?

To determine the winners in a Philippine-style party-list election, the Constitution and


Republic Act No. 7941 mandate at least four inviolable parameters. These are:

First, the twenty percent allocation - the combined number of all party-list
congressmen shall not exceed twenty percent of the total membership of the House of
Representatives, including those elected under the party list.

Second, the two percent threshold - only those garnering a minimum of two percent
of the total valid votes cast for the party-list system are "qualified" to have a seat in the
House of Representatives.

Third, the three seat limit - each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and
two additional seats.

Fourth, proportional representation - the additional seats which a qualified party is


entitled to shall be computed "in proportion to their total number of votes." (VFP vs.
COMELEC, G.R. No. 136781, Oct. 6, 2000 and affirmed by BANAT vs. COMELEC, GR No. 179271, April
29, 2009)

How do you determine the number of Party-List Representatives?

The party-list representatives shall constitute twenty percentum (20%) of the total
number of the members of the House of Representatives including those under the
party-list. (Art. VI, Sec. 5 (2) & Sec. 11, RA 7941)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 19 of 44

FORMULA FOR DETERMINING NO. OF PARTY LIST REPRESENTATIVES:

Number of District Representatives = No. of Party List Representatives


4

What is the procedure in allocating seats for Party-List Representatives?

The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis, rank them according to the number of votes received and allocate
party-list representatives proportionately according to the percentage of votes obtained
by each party, organization, or coalition as against the total nationwide votes cast for the
party-list system. (Sec 12, RA 7941)

How do you determine the allocation of the “guaranteed seat” for the Party-List
Representatives?

FIRST ROUND OF ALLOCATION

Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from
the highest to the lowest based on the number of votes they garnered during the
elections. X x x

The first clause of Section 11(b) of R.A. No. 7941 states that “parties, organizations, and
coalitions receiving at least two percent (2%) of the total votes cast for the party-list
system shall be entitled to one seat each.” This clause guarantees a seat to the two-
percenters. X x x The percentage of votes garnered by each party is arrived at by
dividing the number of votes garnered by each party by the total number of votes cast
for all party-list candidates. (BANAT vs. COMELEC, GR No. 179271, April 29, 2009)

Is the two percent threshold still applicable in the allocation of additional seats
for the Party-List Representatives?

We rule that, in computing the allocation of additional seats, the continued operation
of the two percent threshold for the distribution of the additional seats as found in the
second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds
that the two percent threshold makes it mathematically impossible to achieve the
maximum number of available party list seats when the number of available party list
seats exceeds 50. The continued operation of the two percent threshold in the
distribution of the additional seats frustrates the attainment of the permissive ceiling
that 20% of the members of the House of Representatives shall consist of party-list
representatives. X x x

We therefore strike down the two percent threshold only in relation to the distribution of
the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941.
The two percent threshold presents an unwarranted obstacle to the full implementation
of Section 5(2), Article VI of the Constitution and prevents the attainment of “the
broadest possible representation of party, sectoral or group interests in the House of
Representatives.” (BANAT vs. COMELEC, GR No. 179271, April 29, 2009)

How do you determine the allocation of additional seat for the Party-List
Representatives?

In computing the additional seats, the guaranteed seats shall no longer be included
because they have already been allocated, at one seat each, to every two-percenter.
Thus, the remaining available seats for allocation as “additional seats” are the maximum
seats reserved under the Party List System less the guaranteed seats. Fractional seats
are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off
of fractional seats.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 20 of 44

The percentage of votes garnered by each party-list candidate is arrived at by dividing


the number of votes garnered by each party by the total number of votes cast for party-
list candidates.

There are two steps in the second round of seat allocation. First, the percentage is
multiplied by the remaining available seats, which is the difference between the
maximum seats reserved under the Party-List System and the guaranteed seats of the
two-percenters. The whole integer of the product of the percentage and of the
remaining available seats corresponds to a party’s share in the remaining available
seats. Second, we assign one party-list seat to each of the parties next in rank until all
available seats are completely distributed. We distributed all of the remaining seats in
the second round of seat allocation. Finally, we apply the three-seat cap to determine
the number of seats each qualified party-list candidate is entitled. (BANAT vs. COMELEC,
GR No. 179271, April 29, 2009)

NOTE: Based on the BANAT Formula, all Party-List groups receiving more than 2% are
entitled to 2 additional seats, while those receiving 1-2% received 1 additional seat and
those receiving less than 1% shall receive the remaining available seats according to
their ranking until all seats allocated are filled up.

How are Party-List Representatives chosen?

Party-list representatives shall be proclaimed by the COMELEC based on the list of


names submitted by the respective parties, organizations, or coalitions to the COMELEC
according to their ranking in said list. (Sec. 13, RA 7941)

What is their Term of Office?

Party-list representatives shall be elected for a term of three (3) years which shall begin,
unless otherwise provided by law, at noon on the thirtieth day of June next following
their election. No party-list representatives shall serve for more than three (3)
consecutive terms. Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of his service for the full term for which
he was elected. (Sec. 14, RA 7941)

What is the effect of change of affiliation of a Party-List Representative?

Any elected party-list representative who changes his political party or sectoral affiliation
during his term of office shall forfeit his seat: Provided, That if he changes his political
party or sectoral affiliation within six (6) months before an election, he shall not be
eligible for nomination as party-list representative under his new party or organization.
(Sec. 15, RA 7941)

What is the rule on vacancy?

In case of vacancy in the seats reserved for party-list representatives, the vacancy shall
be automatically filled by the next representative from the list of nominees in the order
submitted to the COMELEC by the same party, organization, or coalition, who shall serve
for the unexpired term. If the list is exhausted, the party, organization, or coalition
concerned shall submit additional nominees. (Sec. 16, RA 7941)

C. SYNCHRONIZED TERMS OF OFFICE

Art. XVIII, Sec. 1. The first elections of Members of the Congress


under this Constitution shall be held on the second Monday of May,
1987.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 21 of 44

The first local elections shall be held on a date to be determined by


the President, which may be simultaneous with the election of the
Members of the Congress. It shall include the election of all
Members of the city or municipal councils in the Metropolitan Manila
area.

Sec. 2. The Senators, Members of the House of Representatives, and


the local officials first elected under this Constitution shall serve
until noon of June 30, 1992.

2. ELECTION

A. REGULAR ELECTION

Art. VI, Sec. 8. Unless otherwise provided by law, the regular


election of the Senators and the Members of the House of
Representatives shall be held on the second Monday of May.

• 2nd Monday of May, every 3 years, starting 1992 (unless otherwise provided by
law). The term of office begins on the following June 30.

B. SPECIAL ELECTION

Art. VI, Sec. 9. In case of vacancy in the Senate or in the House or


Representatives, a special election may be called to fill such
vacancy in the manner prescribed by law, but the Senator or
Member of the House of Representatives thus elected shall serve
only for the unexpired term.

READ: Republic Act No. 6645 - AN ACT PRESCRIBING THE MANNER OF FILLING
A VACANCY IN THE CONGRESS OF THE PHILIPPINES.

Art. IX-C, Sec. 11. Funds certified by the Commission as necessary to


defray the expenses for holding regular and special elections,
plebiscites, initiatives, referenda, and recalls, shall be provided in
the regular or special appropriations and, once approved, shall be
released automatically upon certification by the Chairman of the
Commission.

The law that governs and lays down the details concerning the special congressional
elections is Rep. Act No. 6645 (December 28, 1987). Under the law, no special election will be
called if the vacancy occurs (i) less than 18 months before the next regular election in
the case of the Senate, or (ii) less than 1 year before the next regular election in the
case of the House; in these cases, we will just have to wait for the next regular election,
for practical reasons. (Sec. 1, RA 6645)

When the vacancy occurs during the period when special elections are allowed to be
conducted (18 or 12 months or more before the next regular election), the particular
House of Congress must pass either a resolution by the House concerned, if Congress is
in session, or a certification by the Senate President or the Speaker of the House, if
Congress is not in session, (a) declaring the existence of the vacancy and (b) calling for
a special election to be held within 45 to 90 days from the date of calling of the special
election (that is, from the date of the resolution or certification). (Sec. 2, RA 6645)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 22 of 44

But the Senator or Member of the House thus elected shall serve only for the unexpired
portion of the term. (Art. VI, Sec. 9)

Funds certified by the COMELEC as necessary to defray the expenses for holding regular
and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in
the regular or special appropriations and, once approved, shall be released automatically
upon certification by the Chairman of the COMELEC. (Art. IX-C, Sec. 11)

Lozada vs. COMELEC, G.R. No. L-59068, January 27, 1983 (120 SCRA 337)

FACTS: This is a petition for mandamus filed by Lozada and Igot as a representative suit for and in behalf of
those who wish to participate in the election irrespective of party affiliation, to compel the respondent COMELEC
to call a special election to fill up existing vacancies numbering 12 in the Interim Batasan Pambansa. The
petition is based on Sec. 5 (2), Art. VIII of the 1973 Constitution which reads:

"In case a vacancy arises in the BP 18 months or more before a regular election, the COMELEC
shall call a special election to be held within 60 days after the vacancy occurs to elect the
Member to serve the unexpired term."

Petitioner Lozada claims that he is a Tax Payer (TP) and a bona fide elector of Cebu City and a transient voter
of QC, MM, who desires to run for the position in the BP; while petitioner Igot alleges that, as TP, he has
standing to petition by mandamus the calling of a special election as mandated by the 1973 Consti.

HELD: I. a. As taxypayers, petitioners may not file the instant petition, for nowhere therein is it alleged that
tax money is being illegally spent. xxx

b. As voters, neither have petitioners the requisite interest or personality to qualify them to maintain and
prosecute the present petition. Petitioners' standing to sue may not be predicated upon an interest of the kind
alleged here, which is held in common by all members of the public because of the necessarily abstract nature
of the injury supposedly shared by all citizens.

II. a. The SC's jurisdiction over the COMELEC is only to review by certiorari the latter's decision, orders or
rulings. xxx There is in this case no decision, order or ruling of the COMELEC which is sought to be reviewed
by this Court under its certiorari jurisdiction xxx.

b. Mandamus does not lie. There is total absence that COMELEC has unlawfully neglected the performance of a
ministerial duty or has refused on being demanded, to discharge such a duty. xxx The holding of special
elections in several regional districts where vacancies exist, would entail huge expenditure of money. Only the
BP can make the necessary appropriation for the purpose, and this power of the BP may neither be subject to
mandamus by the courts much less may COMELEC compel BP to exercise its power of appropriation.

III. Perhaps the strongest reason why the said provision is not intended to apply to the Interim National
Assembly is the fact that as passed by the Con Con, the Interim NA was to be composed by the delegates to
the Con Con, as well as the then incumbent President and VP, and the members of the Senate and House of
Rep. of Congress under the 1935 Constitution. With such number of representatives representing each
congressional district, or a province, not to mention the Senators, there was felt absolutely no need for filling up
vacancies occurring in the Interim NA, considering the uncertainty of the duration of its existence.

3. SALARIES, PRIVILEGES AND DISQUALIFICATIONS

A. SALARIES

Art. VI, Sec. 10. The salaries of Senators and Members of the House
of Representatives shall be determined by law. No increase in said
compensation shall take effect until after the expiration of the full
term of all the Members of the Senate and the House of
Representatives approving such increase.

Art. XVIII, Sec. 17. Until the Congress provides otherwise, the xxx
President of the Senate, the Speaker of the House of
Representatives xxx (shall receive an annual salary of) two hundred
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 23 of 44

forty thousand pesos each; the Senators, the Members of the House
of Representatives, xxx two hundred four thousand pesos each; xxx

• While it is Congress, through a salary law, that determines the salary to be


received by its members, the Constitution mandates that no increase in said
compensation shall take effect until after the expiration of the full term of all the
members of the two houses approving such increase.

Philconsa vs. Mathay, G.R. No. L-25554, October 4, 1966 (18 SCRA 300)

FACTS: PHILCONSA has filed in this Court a suit against the Auditor General of the Phils., and the Auditor of
the Congress, seeking to permanently enjoin the aforesaid officials from authorizing or passing in audit the
payment of the increased salaries authorized by RA 4134 (approved 6/10/64) to the Speaker and members of
the HRep before 12/30/69.

Sec. 1, par. 1 of RA 4134 provided, inter alia, that the annual salary of the Senate Pres. and of the Speaker of
the HRep shall be P40,000 each; that of the Senators and members of the HRep, P32,000 each (thereby
increasing their present compensation of P16T and P7,200 pa for the Presiding officers and members
respectively.)

The 1965-1966 Budget implemented the increase in salary of the Speaker and members of the HRep set by RA
4134.

The petitioners contend that such implementation is violative of Art VI, Sec. 14 of the 1935 Constitution, which
provided that: "xxx No increase in said compensation shall take effect until after the expiration of the full term
of all the Members of the Senate and of the House of Representatives approving such increase. xxx"

The reason given being that the term of the 8 senators elected in 1963, and who took part in the approval of
RA 4134, will expire only on 12/30/69; while the term of the members of the House who participated in the
approval of the said Act expired on 12/30/65.

HELD: The Court agrees with petitioners that the increased compensation provided is not operative until
12/30/69, when the full term of all members of the Senate and House that approved it will have expired.

Purpose of the provision.-- The reason for the this rule, the Court said, is to place a "legal bar to the legislators
yielding to the natural temptation to increase their salaries. Not that the power to provide for higher compen-
sation is lacking, but with the length of time that has to elapse before an increase becomes effective, there is a
deterrent factor to any such measure unless the need for it is clearly felt."

Significantly, in establishing what might be termed a waiting period, the constitutional provision refers to "all
members of the Senate and of the House or Rep." in the same sentence, as a single unit, without distinction or
separation between them. This unitary treatment is emphasized by the fact that the provision speaks of the
"expiration of the full term" xxx using the singular form, and not the plural, despite the difference in the terms
of office, xxx thereby rendering more evident the intent to consider both houses for the purpose as indivisible
components of one single Legislature. The use of the word "term" in the singular, when combined with the
following phrase "all the members of the Senate and of the House," underscores that in the application of said
provision, the fundamental consideration is that the terms of office of all members of the Legislature that
enacted the measure must have expired before the increase in compensation can become operative.

Term of all the members of the Congress, instead of all the members of the Senate and of the House." This is
a distinction w/o a difference, since the Senate and the House together constitute the Congress.

The use of the phrase "of the Senate and of the House" when it could have employed the shorter expression "of
the Senate and the House" is grammatically correct. To speak of "members of the Senate and the House"
would imply that the members of the Senate also held membership in the House.

Illustration:

• If a salary law is passed in 2010 increasing the salary of members of Congress,


the same law can only take effect for the term that begins at noon of 30 June
2016;
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• But if a salary is passed in 2010 decreasing the salary of members of Congress,


the law can take effect right away, since the Constitution prohibits only the
increase.

• If another salary law is passed in 2013 to increase the salary, the same can take
effect not in the term beginning at noon of 30 June 2016; the top twelve senators
elected on the 2nd Monday of May, 2013 would still be holding office then. It can
only take effect in 2019. Effectively, therefore, such law can take effect only after
the expiration of the longest term of a Senator, which is six years, even if the
term of the Representative who voted for the law is only 3 years.

Ligot vs. Mathay, G.R. No. L-34676, April 30, 1974 (56 SCRA 823)

FACTS: Petitioner served as a member of the House of Representatives of Congress for 3 consecutive 4-yr
terms covering a 12-yr span from 12/30/57 to 12/30/69. During his 2nd term in office, RA 4134 was enacted
into law.

Petitioner was reelected to a 3rd term (12/30/65 to 12/30/69) but was held not entitled to the salary increase of
P32,000 during such third term by virtue of this Court's unanimous decision in Philconsa v. Mathay. Petitioner
lost his bid for a consecutive 4th term in the 1969 elections and his term having expired on 12/31/69, filed a
claim for retirement under CA 186, Sec. 12 (c), as amended.

The HRep thus issued a treasury warrant in petitioner's favor as his retirement gratuity, using the increased
salary of P32,000 p.a. Respondent Congress Auditor did not sign the warrant pending resolution by the Auditor
Gen. of a similar claim filed by Cong Singson. When the Auditor Gen.'s adverse decision on Singson's claim
came out, resp Auditor requested petitioner to return the warrant for recomputation. Petitioner's request for
recon having been denied by the Auditor Gen. he filed the present petition for review.

HELD: 1. [T]he "rate of pay as provided by law" for members of Congress retiring on 12/30/69, such as
petitioner, must necessarily be P7,200 p.a., the compensation they received "as provided by law" and the Consti
during their term of office.

2. To grant retirement gratuity to members of Congress whose terms expired on 12/30/69 computed on the
basis of an increased salary of P32,000 p.a. would be to pay them prohibited emoluments w/c in effect increase
the salary beyond that w/c they were permitted by the Constitution to receive during their incumbency. This
would be a subtle way of going around the constitutional prohibition and increasing in effect their compensation
during their term of office and of doing indirectly what could not be done directly.

3. Petitioners' contention that since the increased salary of P32T p.a. was already operative when his
retirement took effect on 12/30/69, his retirement gratuity should be based on such increased salary cannot be
sustained as far as he and other members of Congress similarly situated are concerned for the simple reason
that a retirement or benefit is a form of compensation within the purview of the Constitutional provision limiting
their compensation and "other emoluments" to their salary as provided by law.

B. FREEDOM FROM ARREST

Art. VI, Sec. 11. A Senator or Member of the House shall, in all
offenses punishable by not more than six (6) years imprisonment
(prision correcional), be privileged from arrest while Congress is in
session. xxx

Elements of the privilege:

1) Congress must be in session, whether regular (sec. 15) or special (supra). It does
not matter where the member of Congress may be found (attending the session,
socializing in a private party, or sleeping at home), so long as Congress is in session,
freedom from arrest holds;

2) The crime for which the member is to be arrested is punishable by 6 years of


imprisonment or less. "Punishable" refers to the maximum possible penalty which a
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penal statute attaches to the offense. It follows too that if the crime is punishable by
6 years and 1 day of prision mayor or more, the member can be arrested, even if he
is session in the halls of Congress.

People vs. Jalosjos, G.R. No. 132875-76, November 16, 2001 (324 SCRA 689)

HELD: The immunity from arrest or detention of Senators and members of the House of Representatives, the
latter customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the
provision shows that the privilege has always been granted in a restrictive sense. The provision granting an
exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be
extended by intendment, implication or equitable considerations.

The 1935 Constitution provided in its Article VI on the Legislative Department:

SECTION 15. The Senators and Members of the House of Representatives shall in all cases
except treason, felony, and breach of the peace be privileged from arrest during their
attendance at the sessions of Congress, and in going to and returning from the same; . .

Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A
congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim
parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be
tried or whose convictions were pending appeal.

The 1973 Constitution broadened the privilege of immunity as follows:

Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not
more than six years imprisonment, be privileged from arrest during his attendance at its
sessions and in going to and returning from the same.

For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The
restrictive interpretation of immunity and the intent to confine it within carefully defined parameters is
illustrated by the concluding portion of the provision, to wit:

. . . but the Batasang Pambansa shall surrender the member involved to the custody of the law
within twenty four hours after its adjournment for a recess or for its next session, otherwise
such privilege shall cease upon its failure to do so.

The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the
subject Congressman to the custody of the law. The requirement that he should be attending sessions or
committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in
session.

C. SPEECH AND DEBATE CLAUSE

Art VI, Sec. 11. xxx No member shall be questioned nor be held
liable in any other place for any speech or debate in the Congress or
in any committee thereof.

This privilege protects the member concerned from any libel suit that may be filed
against him for a speech made "in" the halls of Congress or in any of its committees.
Speech is not confined to traditional speech but even to the casting of votes, the making
of reports, a debate or discussion, even communicative actions, and any other form of
expression.

The speech, however, must be made "in" Congress in the discharge of legislative duty.
Thus,

Jimenez vs. Cabangbang, G.R. No. L-15905, August 3, 1966 (17 SCRA 876)

FACTS: This is an ordinary civil action for the recovery by plaintiffs Jimenez, et al., of several sums of money,
by way of damages for the publication of an allegedly libelous letter of defendant Bartolome Cabangbang. An
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open letter of the President, published in several newspapers of general circulation saying that certain members
of the Armed Forces of the Philippines had been preparing for a coup and working for the candidacy of the
Secretary of Defense for the Presidency.

Upon being summoned, the Cabangbang moved to dismiss the complaint upon the ground that the letter in
question is not libelous, and that, even if it were, said letter is a privileged communication.

ISSUES: Whether the publication in question is a privileged communication; and, if not, whether it is libelous
or not.

HELD: (1) The determination of the first issue depends on w/n the publication falls w/in the purview of the
phrase "speech or debate therein"-- that is to say, in Congress -- used in this provision.

Scope of Parliamentary Freedom of Speech and Debate. -- "Said expression refers to utterances made by
Congressmen in the performance of their official functions, such as speeches delivered, statements made, or
votes cast in the halls of Congress, while the same is in session, as well as bills introduced in Congress,
whether the same is in session or not, and other acts performed by Congressmen, either in Congress or outside
the premises housing its offices, in the official discharge of their duties as members of Congress and of
Congressional Committees duly authorized to perform its functions as such, at the time of the performance of
the acts in question."

The publication involved in this case does not belong to this category. According to the complaint herein, it was
an open letter to the President dated 11/14/58, when Congress presumably was not in session, and defendant
caused said letter to be published in several newspapers of general circulation in the Phils., on or about said
date. It is obvious that, in thus causing the communication to be so published, he was not performing his
official duty, either as a member of Congress of as officer or any Committee thereof.

(2) Letter was not libelous.-- The letter was not libelous because it mentions that herein appellants as possibly
"unwitting tools of a plan of which they have absolutely no knowledge." In other words, the very document
upon which plaintiffs' action is based explicitly indicates that they might be absolutely unaware of the alleged
operation plans, and that they may be unwitting tools of the planners. The statement is not derogatory to the
plaintiffs to the point of entitling them to recover damages.

• The provision protects the Member of Congress only from being held liable outside
of Congress ("in any other place"); it does not protect him from liability "inside"
Congress, i.e., from possible disciplinary measures that his peers may impose
upon him. For as mentioned above, his speech may constitute disorderly behavior
as in the case Osmena vs. Pendatun, and this may be penalized with censure,
suspension for 60 days, or expulsion, the latter two upon concurrence of 2/3 of
the membership.

• It is important to note that this privilege is not absolute. The rule provides that
the legislator may not be questioned "in any other place," which means that he
may be called to account for his remarks by his own colleagues in Congress itself,
and when warranted, punished for disorderly behaviour. Thus, in the case of
Osmena v. Pendatun, the President himself who had been vilified by the petitioner
could not file any civil or criminal action against him because of this immunity.
Nonetheless, the majority of the members of the House of Representatives in
which the questioned speech was delivered were not precluded from
demonstrating their loyalty to the chief executive by declaring Osmena guilty of
disorderly behaviour and suspending him in the exercise of their disciplinary power
[now Art. VI, Sec. 16(3)].

Osmena vs. Pendatun, G.R. No. L-17144, October 28, 1960 (109 Phil 863)

FACTS: In 1960, Cong. Osmena delivered a privilege speech in Congress entitled "A Message to Garcia,"
maliciously denouncing and charging the administration of Pres. Garcia. As a result of this, the House of
Representatives through House Resolution No. 59 created a special committee to investigate the veracity of the
charges and for him to show cause why he should not be punished by the House if he failed to substantiate his
charges. On his side, Osmena contended in his petition that: (1) the Constitution gave him complete
parliamentary immunity, and so, for words spoken in the House, he ought not to be questioned; (2) that his
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Atty. Rene Callanta, Jr.
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speech constituted no disorderly behaviour for which he could be punished; (3) supposing he could be
questioned and disciplined therefor, the House had lost the power to do so because it had taken up other
business before approving House Resolution No. 59; (4) that the House has no power, under the Constitution,
to suspend one of its members.

Resolution No. 175 found Osmena guilty of serious disorderly behaviour. He was suspended for 15 months.

HELD: 1. Sec. 15, Art. VI of the 1935 Constitution provides that "for any speech or debate" in Congress, the
Senators or Members of the HRep "shall not be questioned in any other place." Observe that "they shall not be
questioned in any other place" than Congress. But they may, nevertheless, be questioned in Congress itself.

Furthermore, the Rules of the House which petitioner himself has invoked recognize the House's power to hold
a member responsible "for words spoken in debate."

The provision guarantees the legislator complete freedom of expression without fear of being made responsible
in criminal or civil actions before the courts or any other forum outside of the Congressional Hall. But it does not
protect him from responsibility before the legislative body itself whenever his words and conduct are considered
by the latter disorderly or unbecoming a member thereof.

For unparliamentary conduct, members of Congress have been, or could be censured, committed to prison,
suspended, even expelled by the votes of their colleagues.

2. On the third point of petitioner that the House may no longer take action against him, because after his
speech and before approving the Resolution No. 59, it had taken up other business.

Courts have declared that "the rules adopted by deliberative bodies are subject to revocation, modification or
waiver at the pleasure of the body appointing them." And it has been said that "Parliamentary rules are merely
procedural and with their observance, the courts have no concern. They may be waived or disregarded by the
legislative body."

3. On the question whether or not delivery of speeches attacking the President constitutes disorderly conduct
for which Osmena may be disciplined, we believe that the House is the judge of what constitutes disorderly
behaviour, not only because the Constitution has conferred jurisdiction upon it, but also because the matter
depends mainly on factual circumstances of which the House knows best but which can not be depicted in black
and white for presentation to, and adjudication by the Courts.

Illustration:

• If Congressman X makes an oral abuse against Congressman Y in the halls of


Congress, he cannot be arrested nor prosecuted for slander because of the speech
clause. But he can be punished by his peers for disorderly behavior.

• But if Congressman X, in the course of heated debate, assaults Congressman Y


and inflicts physical injuries, he can be criminally prosecuted (for direct assault
with grave or less grave physical injuries) because although a verbal assault is
immune, a physical assault is not immune. But although he can be prosecuted, he
cannot be arrested while Congress is in session, because while he is not immune
from prosecution, he is immune from arrest, assuming the penalty does not
exceed prision correctional. The court must thus wait for the recess of Congress
before it can order his arrest.

Q. Does the privilege extend to agents of congressmen or senators?

A. YES, provided that the “agency” consists precisely in assisting the legislator in the
performance of “legislative action”1

1 Bernas citing Gravel v. US, 90 LW 5053


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D. DISQUALIFICATIONS

(1) Incompatible Offices and Forbidden Offices

Art. VI, Sec. 13. No Senator or Member of the House of


Representatives may hold any other office or employment in the
Government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat. xxx

An INCOMPATIBLE OFFICE is a post which a member cannot accept unless he waives or


forfeits his seat in Congress. A sensu contrario, if he waives or forfeits his seat, he may
accept the other post, since the incompatibility arises only because of his simultaneous
membership in both.

Adaza vs. Pacana, Jr., G.R. No. L-68159, March 18, 1985 (135 SCRA 431)

FACTS: Petitioner Homobono Adaza was elected governor of Misamis Oriental in the 1/30/80 elections. Elected
vice-gov. for said province in the same elections was resp. Fernando Pacana, Jr. Both qualified and assumed
their respective offices.

Both Adaza and Pacana filed their certificates of candidacy for the 5/14/84 BP elections. In the said elections,
petitioner won while respondents lost.

On 7/23/84, respondent took his oath of office as governor of Misamis Oriental and started to perform the
duties of governor. Claiming to be the lawful occupant of the governor's office, petitioner has brought this
petition to exclude respondent therefrom. He argues that he was elected to said office for a term of 6 yrs., that
he remains to be the governor of the province until his term expires on 3/23/86 as provided by law, and that
within the context of the parliamentary system, a local elective official can hold the position to which he had
been elected and simultaneously be an elected member of Parliament.

HELD: 1. The constitutional prohibition against a member of the BP from holding any other office of
employment in the government during his tenure is clear and unambiguous. Sec. 10, Art. VIII of the 1973
Constitution provides that:

"Sec. 10. A member of the National Assembly shall not hold any other office or employment in
the government xxx except that of prime minister or member of the cabinet. xxx

It is of no avail to petitioner that the system of govt in other states allows a local elective official to act as an
elected member of the parliament at the same time. The dictate of the people in whom legal sovereignty lies is
explicit. xxx [T]he incompatibility herein present is one created by no less than the constitution itself.

2. The second proposition advanced by petitioner is that resp. Pacana, as a mere private citizen, had no right
to assume the governorship left vacant by petitioner's election to the BP. He maintains that resp. should be
considered as having abandoned or resigned from the vice-governorship when he filed his cert. of candidacy.
The point pressed runs afoul of BP 697, Sec. 13 (2) of w/c provides that governors, mayors, members of the
various sangguniang or barangay officials shall, upon filing a cert. of candidacy, be considered on forced leave
of absence from office." Respondent falls within the coverage of this provision considering that he was a
member of the Sangguniang Panlalawigan.

NOTE: No forfeiture shall take place if the member of Congress holds the other
government office in an “ex officio capacity” e.g. membership in the board of regents of
U.P. or a member of the Judicial Bar Council.

Art. VI, Sec. 13. xxx 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.

A FORBIDDEN OFFICE is one to which a member cannot be appointed even if he is


willing to give up his seat in Congress. The effect of his resignation from the Congress is
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the loss of his seat therein but his disqualification for the forbidden office nevertheless
remains. The prohibition lies in the "fiduciary" nature of the relationship involved.

Such a member cannot resign in anticipation of the passage of the law creating such
office or increasing its emolument as a way of circumventing the prohibition. However,
the prohibition is not forever (as in the Jones Law); it is for the term for which he was
elected.

(2) Other prohibitions

Art. VI, Sec. 14. No Senator or Member of the House of


Representatives may personally appear as counsel before any court
of justice or before the Electoral Tribunals, or quasi-judicial and
other administrative bodies. Neither shall he, directly or indirectly,
be interested financially in any contract with, or in any franchise or
special privilege granted by the Government, or any subdivision,
agency, or instrumentality thereof, including any government-
owned or controlled corporation, or its subsidiary, during his term
of office. He shall not intervene in any matter before any office of
the Government for his pecuniary benefit or where he may be called
upon to act on account of his office.

OTHER PROHIBITIONS:

(1) Personally appearing as counsel before any court of justice, the Electoral Tribunal,
quasi-judicial bodies, and other administrative bodies.

(2) Being interested financially in any (a) contract with, or (b) franchise or special
privilege granted by, the Government, its subdivision, agency or instrumentality, a
government-owned or controlled corporation, or its subsidiary. The prohibition is
for the duration of his term of office.

(3) Intervening in any matter before any office of the government for his pecuniary
benefit.

(4) Intervening in any matter where he may be called upon to act on account of his
office.

• What the Constitution prohibits in the case of members of Congress who are also
members of the bar is their personal appearance before any of these bodies. This
is not a prohibition against, the practice of law in any court. Thus, a member may
still sign and file his pleadings, give legal advice, continue as partner, and have a
partner or associate appear for him in court.

• Under the 1973 Constitution, the prohibition against personal appearance covered
only courts inferior to a court of appellate jurisdiction (RTC down), courts in a civil
case wherein the government is the adverse party, and administrative bodies.
Now, the prohibition is against "any" court, thus including the SC and the CA,
regardless of the action.

Puyat vs. De Guzman, Jr., G.R. No. L-51122, March 25, 1982 (113 SCRA 32)

FACTS: On 5/14/79, an election for the 11 Directors of the International Pipe Industries Corp. (IPI) was held.
There were two groups, the Puyat Group and the Acero Group. The Puyat Group would be in control of the
Board and of the management of IPI.

On 5/25/79, the Acero Group instituted at the SEC quo warranto proc. questioning the 5/14/79 election. The
said group claimed that the votes were not properly counted.
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May 25-31, 1979, the Puyat Group claims that at the conferences of the parties with respondent SEC
Commissioner, Justice Estanislao A. Fernandez, then a member of the Interim BP, orally entered his appearance
as counsel for resp. Acero to which the Puyat Group objected on Constitutional grounds. Sec. 11, Art. VIII of
the 1973 Constitution provided that no Assemblyman could "appear as counsel before xxx any administrative
body," and SEC was an administrative body.

On 7/17/79, the SEC granted leave to intervene on the basis of Atty. Fernandez' ownership of ten shares. It is
this Order allowing intervention that precipitated the instant petition for Certiorari and Prohibition w/ Prel. Inj.

On 9/4/79, the Court en banc issued a TRO enjoining resp SEC Commissioner from allowing the participation as
an intervenor, of respondent Fernandez at the proceedings in the SEC case.

HELD: The intervention of Assemblyman Fernandez in the SEC case falls w/in the ambit of the prohibition
contained in the Constitution. There has been an indirect "appearance as counsel before xxx an administrative
body."

Ordinarily, by virtue of the Motion of Intervention, Assemblyman Fernandez cannot be said to be appearing as
counsel. Ostensibly, he is not appearing on behalf of another, although he is joining the cause of the private
respondents. His appearance could theoretically be for the protection of his ownership of 10 shares of IPI in
respect of the matter in litigation.

However, certain salient circumstances militate against the intervention of Assemblyman F. in the SEC case. He
had acquired a mere P200 worth of stocks in IPI. He acquired them "after the fact," that is, on 5/30/79, after
the contested election of Directors on 5/14/79, after the quo warranto suit had been filed on 5/25/79 before
SEC and one day before the scheduled hearing of the case before the SEC on 5/31/79. And what is more,
before he moved to intervene, he had signified his intention to appear as counsel for resp. Acero, but w/c was
objected to by petitioners. Realizing, perhaps, the validity of the objection, he decided, instead to "intervene"
on the ground of legal interest in the matter under litigation.

E. DUTY TO DISCLOSE

Art. XI, 17. 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 net worth. In
the case of the President, the Vice-President, the Members of the
Cabinet, the Congress, the Supreme Court, the Constitutional
Commissions and other constitutional offices, and officers of the
armed forces with general or flag rank, the declaration shall be
disclosed to the public in the manner provided by law.

Art. VI, Sec. 12. All Members of the Senate and the House of
Representatives shall, upon assumption of office, make a full
disclosure of their financial and business interests. They shall
notify the House concerned of a potential conflict of interest that
may arise from the filing of a proposed legislation of which they are
authors.

Sec. 20. The records and books of accounts of the Congress shall be
preserved and be open to the public in accordance with law, and
such books shall be audited by the Commission on Audit which shall
publish annually an itemized list of amounts paid to and expenses
incurred for each Member.

• In general, a public officer or employee shall, upon assuming office and as often
thereafter as may be, required by law, submit a declaration under oath of his
assets, liabilities and net worth (SALN). But in the case of members of Congress
and other high government officials (as enumerated), the disclosure must be
made public (Art. XI, Sec. 17). Furthermore, all members of Congress shall, upon
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1st Semester, P.U.P. College of Law. SY 2013-2014
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assumption of office make a full disclosure of their financial and business interests
(Art. VI, Sec. 12).

• The law governing this financial disclosure by public officers and employees is RA
3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Every public
officer shall submit to (a) the Office of the Department Head, or (b) the Office of
the President in case of a head of department or chief of an independent office,
the following:

1. A true, detailed, and sworn statement of assets and liability;

2. A statement of the amounts and sources of his income;

3. The amount of personal and family expenses, and

4. The amount of income taxes paid the previous year, on the following
occasions:
(a) within 30 days after assuming office
(b) on or before April 15 after the close of the calendar year, and
(c) upon the expiration of their term of office, or upon resignation or
separation from office

• When a member of Congress authors a proposed legislation, he must notify the


House concerned of any "potential conflict of interest" that may arise from his
filing of such bill (Art. VI, Sec. 12.)

• Furthermore, the records and books of accounts of the Congress shall be


preserved and be open to the public in accordance with law, and such books shall
be audited by the Commission on Audit, which shall publish annually an itemized
list of amounts paid to and expenses incurred for each Member (Art. VI, Sec. 20.)

• The purpose of public disclosure of a member's financial status and official


expenses is to make him visible to the rest, and thus give him a deterrent from
committing graft and corruption. The public has a right to know how much it is
spending for its government,

4. INTERNAL GOVERNMENT OF CONGRESS

A. ELECTION OF OFFICERS

Art. VI, Sec. 16 (1) The Senate shall elect its President and the House
of Representatives its Speaker, by a majority vote of all its
respective Members.

Each House shall choose such other officers as it may deem


necessary.

First order of business - election by each house of the President of the Senate and the
Speaker of the House, and such other officers that the rules of each house may provide.

A majority vote of all the respective members is required to elect these two officers.

Upon the election of the President and the Speaker, the Constitution deems the Houses
"organized." (Art. VI, sec. 19)
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Santiago vs. Guingona, G.R. No. 134577, November 18, 1998 (298 SCRA 756)

HELD: While the Constitution is explicit on the manner of electing a Senate President and a House Speaker, it
is, however, dead silent on the manner of selecting the other officers in both chambers of Congress. All that the
Charter says is that "[e]ach House shall choose such other officers as it may deem necessary." To our mind, the
method of choosing who will be such other officers is merely a derivative of the exercise of the prerogative
conferred by the aforequoted constitutional provision. Therefore, such method must be prescribed by the
Senate itself, not by this Court.

In this regard, the Constitution vests in each house of Congress the power "to determine the rules of its
proceedings." Pursuant thereto, the Senate formulated and adopted a set of rules to govern its internal affairs.
Pertinent to the instant case are Rules I and II thereof, which provide:

"Rule I
ELECTIVE OFFICERS

"SEC. 1. The Senate shall elect, in the manner hereinafter provided, a President, a President
Pro Tempore, a Secretary, and a Sergeant-at-Arms.

"These officers shall take their oath of office before entering into the discharge of their duties.

RULE II
ELECTION OF OFFICERS

"SEC. 2. The officers of the Senate shall be elected by the majority vote of all its Members.
Should there be more than one candidate for the same office, a nominal vote shall be taken;
otherwise, the elections shall be by viva voce or by resolution."

Notably, the Rules of the Senate do not provide for the positions of majority and minority leaders. Neither is
there an open clause providing specifically for such offices and prescribing the manner of creating them or of
choosing the holders thereof. At any rate, such offices, by tradition and long practice, are actually extant. But,
in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon
which to determine the legality of the acts of the Senate relative thereto. On grounds of respect for the basic
concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not
within the province of courts to direct Congress how to do its work. Paraphrasing the words of Justice Florentino
P. Feliciano, this Court is of the opinion that where no specific, operable norms and standards are shown to
exist, then the legislature must be given a real and effective opportunity to fashion and promulgate as well as to
implement them, before the courts may intervene.

Needless to state, legislative rules, unlike statutory laws, do not have the imprints of permanence and
obligatoriness during their effectivity. In fact, they "are subject to revocation, modification or waiver at the
pleasure of the body adopting them." Being merely matters of procedure, their observance are of no concern to
the courts, for said rules may be waived or disregarded by the legislative body at will, upon the concurrence of
a majority.

In view of the foregoing, Congress verily has the power and prerogative to provide for such officers as it may
deem. And it is certainly within its own jurisdiction and discretion to prescribe the parameters for the exercise of
this prerogative. This Court has no authority to interfere and unilaterally intrude into that exclusive realm,
without running afoul of constitutional principles that it is bound to protect and uphold — the very duty that
justifies the Court's being. Constitutional respect and a becoming regard for the sovereign acts of a coequal
branch prevents this Court from prying into the internal workings of the Senate. To repeat, this Court will be
neither a tyrant nor a wimp; rather, it will remain steadfast and judicious in upholding the rule and majesty of
the law.

To accede, then, to the interpretation of petitioners would practically amount to judicial legislation, a clear
breach of the constitutional doctrine of separation of powers. If for this argument alone, the petition would
easily fail.

B. QUORUM

Id., Sec. 16(2) A majority of each House shall constitute a quorom to


do business, but a smaller number may adjourn from day to day and
may compel the attendance of absent Members in such manner, and
under such penalties, as such House may provide.
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Atty. Rene Callanta, Jr.
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• The quorum required to conduct business is a majority (1/2 + 1) of all the


members.

• But to pass a law, only the votes of the majority of those present in the session,
there being a quorum, are required. This is known as the "shifting majority".

• To illustrate: 13 members of the Senate are sufficient to constitute a quorum. If


only 13 members are present, a vote by 7 in favor of a bill is sufficient to pass it.
But as the number of those present increases, the number of votes needed to
pass a bill would correspondingly increase, i.e., shift.

• When a quorum cannot be had, a smaller number may adjourn from day to day,
and compel the attendance of the absent (recalcitrant) members by the means of
arrest or such other measures and penalties as the House may provide in its rules.

Avelino vs. Cuenco, G.R. No. L-2821, March 4, 1949 (83 Phil 17)

FACTS: Jose Avelino was Senate President in 1949. On 2/21/49, Senators Tanada and Sanidad filed a
resolution (Resolution 68) against Avelino calling for an investigation. During the session, Avelino and 6 others
walked out leaving 12 senators behind. The 12 senators continued the session and passed resolution no. 67
declaring the Senate President seat vacant. Senator Cuenco was eventually elected as the acting President of
the Senate.

By his petition in this quo warranto proceeding petitioner asks the Court to declare him the rightful President of
the Philippine Senate and oust respondent, Senator Cuenco.

ISSUES: a. Does the Court have jurisdiction over the subject-matter?


b. It if has, were resolutions Nos. 68 and 67 validly approved?
c. Should the petition be granted?

HELD: a. To the first question, the answer is in the negative, in view of the separation of powers, the political
nature of the controversy and the constitutional grant to the Senate of the power to elect its own president,
which power should not be interfered with, nor taken over, by the judiciary. xxx

b. The second question depends upon these sub-questions: (1) Was the session of the so-called rump Senate
a continuation of the session validly assembled w/ 22 Senators (2 were absent-- one was abroad; the other was
confined in a Manila hospital) in the morning of 2/21/49? (2) Was there a quorom in that session?
(1) Supposing that the Court has jurisdiction, there is unanimity in the view that the session under
Senator Arranz was a continuation of the morning session and that a minority of 10 senators may not, by
leaving the Hall, prevent the other 12 senators from passing a resolution that met w/ their unanimous
resolution.
(2) If the rump session was not a continuation of the morning session, was it validly constituted?
Justices Paras, Feria, Pablo and Bengzon say there was for the following reasons: (i) the minutes say so, (ii)
at the beginning of such session there were at least 14 senators including Senators Pendatun and Lopez, and
(iii) in view of the absence from the country of Senator Confessor, 12 senators constitute a majority of the
Senate of 23 senators. When the Constitution declares that a majority of "each House" shall constitute a
quorom, "the House" does not mean "all" the members. Even a majority of all the members constitute the
"House." There is a difference bet. a majority of "all the members of the House" and a majority of "the House,"
the latter requiring less number than the first. Therefore, an absolute majority (12) of all the members of the
Senate less one (23) constitutes constitutional majority of the Senate for the purpose of the quorom. J. Pablo
believes further that even if the 12 did not constitute a quorom, they could have ordered the arrest of one, at
least, of the absent members xxx.

In Avelino v. Cuenco, supra., the ruling then was: The quorum was computed on the
number of Senators over whom the Senate has jurisdiction at the time of session.

People vs. Jalosjos, G.R. No. 132875-76, November 16, 2001 (324 SCRA 689)

HELD: The accused-appellant argues that a member of Congress' function to attend sessions is underscored by
Section 16 (2), Article VI of the Constitution which states that —
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Atty. Rene Callanta, Jr.
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(2) A majority of each House shall constitute a quorum to do business, but a smaller number
may adjourn from day to day and may compel the attendance of absent Members in such
manner, and under such penalties, as such House may provide.

However, the accused-appellant has not given any reason why he should be exempted from the operation of
Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend
sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a
crime punishable by imprisonment of more than six months is not merely authorized by law, it has constitutional
foundations.

C. RULES OF PROCEEDINGS

Id., Secs. 16(3) Each House may determine the rules of its
proceedings, punish its Members for disorderly behaviour, and with
the concurrence of two-thirds of all its Members, suspend or expel a
Member. A penalty of suspension, when imposed, shall not exceed
sixty days.

Sec. 21. The Senate or the House of Representatives or any of its


respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be
respected.

• Each House or its committees may determine the rules of its proceedings. These
rules include the procedure to be followed in "inquiries in aid of legislation."

• The House may set aside the rules it adopted as it sees fit, because these rules
are only of a temporary nature.

Pacete vs. Sec. of the Commission on Appointments, G.R. No. L-25895, July 23, 1971 (40 SCRA 58)

DOCTRINE: The rules of the Commission on Appointments concerning its internal business could be reviewed
by the Courts, that is, it is a justiciable matter, when a certain construction of such rules would defeat the right
of the individual to a public office.

Q. May the SC intervene in the implementation of the rules of either house of Congress?

A. On matters affecting only internal operation of the legislature, the legislature’s


formulation and implementation of its rules is beyond the reach of the courts. When,
However, the legislative rule affects private rights, the courts cannot altogether be
excluded.2

Arroyo vs. De Venecia, G.R. No. 127255, August 14, 1997 (277 SCRA 268)

HELD: It is clear from the foregoing facts that what is alleged to have been violated in the enactment of R.A.
No. 8240 are merely internal rules of procedure of the House rather than constitutional requirements for the
enactment of a law, i.e., Art. VI, §§26-27. Petitioners do not claim that there was no quorum but only that, by
some maneuver allegedly in violation of the rules of the House, Rep. Arroyo was effectively prevented from
questioning the presence of a quorum.

Petitioners contend that the House rules were adopted pursuant to the constitutional provision that "each House
may determine the rules of its proceedings" and that for this reason they are judicially enforceable. To begin
with, this contention stands the principle on its head. In the decided cases, the constitutional provision that
"each House may determine the rules of its proceedings" was invoked by parties, although not successfully,
precisely to support claims of autonomy of the legislative branch to conduct its business free from interference
by courts. Here petitioners cite the provision for the opposite purpose of invoking judicial review.

2 Bernas citing US v. Smith, 286 US 6


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But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence
of showing that there was a violation of a constitutional provision or the rights of private individuals. In Osmeña
v. Pendatun (109 Phil. 870), it was held: "At any rate, courts have declared that 'the rules adopted by
deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body adopting them.'
And it has been said that 'Parliamentary rules are merely procedural, and with their observance, the courts have
no concern. They may be waived or disregarded by the legislative body.' Consequently, 'mere failure to conform
to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number
of members have agreed to a particular measure.'"

In United States v. Ballin, Joseph & Co. (144 US 5), the rule was stated thus: "The Constitution empowers each
house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained. But within these limitations all matters of
method are open to the determination of the House, and it is no impeachment of the rule to say that some
other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a
different one has been prescribed and in force for a length of time. The power to make rules is not one which
once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within
the limitations suggested, absolute and beyond the challenge of any other body or tribunal."

In Crawford v. Gilchrist (64 Fla. 41), it was held: "The provision that each House shall determine the rules of its
proceedings does not restrict the power given to a mere formulation of standing rules, or to the proceedings of
the body in ordinary legislative matters; but in the absence of constitutional restraints, and when exercised by a
majority of a constitutional quorum, such authority extends to a determination of the propriety and effect of any
action as it is taken by the body as it proceeds in the exercise of any power, in the transaction of any business,
or in the performance of any duty conferred upon it by the Constitution."

In State ex rel. City Loan & Savings Co. v. Moore (124 Ohio St. 256), the Supreme Court of Ohio stated: "The
provision for reconsideration is no part of the Constitution and is therefore entirely within the control of the
General Assembly. Having made the rule, it should be regarded, but a failure to regard it is not the subject-
matter of judicial inquiry. It has been decided by the courts of last resort of many states, and also by the United
States Supreme Court, that a legislative act will not be declared invalid for noncompliance with rules."

In State v. Savings Bank (79 Conn. 141), the Supreme Court of Errors of Connecticut declared itself as follows:
"The Constitution declares that each house shall determine the rules of its own proceedings and shall have all
powers necessary for a branch of the Legislature of a free and independent state. Rules of proceedings are the
servants of the House and subject to its authority. This authority may be abused, but when the House has acted
in a matter clearly within its power, it would be an unwarranted invasion of the independence of the legislative
department for the court to set aside such action as void because it may think that the House has misconstrued
or departed from its own rules of procedure."

In McDonald v. State (80 Wis. 407), the Wisconsin Supreme Court held: "When it appears that an act was so
passed, no inquiry will be permitted to ascertain whether the two houses have or have not complied strictly with
their own rules in their procedure upon the bill, intermediate its introduction and final passage. The
presumption is conclusive that they have done so. We think no court has ever declared an act of the legislature
void for non-compliance with the rules of procedure made by itself , or the respective branches thereof, and
which it or they may change or suspend at will. If there are any such adjudications, we decline to follow them."

Schweizer v. Territory (5 Okl. 297) is illustrative of the rule in these cases. The 1893 Statutes of Oklahoma
provided for three readings on separate days before a bill may be passed by each house of the legislature, with
the proviso that in case of an emergency the house concerned may, by two-thirds vote, suspend the operation
of the rule. Plaintiff was convicted in the district court of violation of a law punishing gambling. He appealed
contending that the gambling statute was not properly passed by the legislature because the suspension of the
rule on three readings had not been approved by the requisite two-thirds vote. Dismissing this contention, the
State Supreme Court of Oklahoma held:

We have no constitutional provision requiring that the legislature should read a bill in any
particular manner. It may, then, read or deliberate upon a bill as it sees fit, either in accordance
with its own rules, or in violation thereof, or without making any rules. The provision of section
17 referred to is merely a statutory provision for the direction of the legislature in its action
upon proposed measures. It receives its entire force from legislative sanction, and it exists only
at legislative pleasure. The failure of the legislature to properly weigh and consider an act, its
passage through the legislature in a hasty manner, might be reasons for the governor
withholding his signature thereto; but this alone, even though it is shown to be a violation of a
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Atty. Rene Callanta, Jr.
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rule which the legislature had made to govern its own proceedings, could be no reason for the
court's refusing its enforcement after it was actually passed by a majority of each branch of the
legislature, and duly signed by the governor. The courts cannot declare an act of the legislature
void on account of noncompliance with rules of procedure made by itself to govern its
deliberations. McDonald v. State, 80 Wis. 407, 50 N.W. 185; In re Ryan, 80 Wis. 414, 50 N.W.
187; State v. Brown, 33 S.C. 151, 11 S.E. 641; Railway Co. v. Gill, 54 Ark. 101, 15 S.W. 18.

We conclude this survey with the useful summary of the rulings by former Chief Justice Fernando, commenting
on the power of each House of Congress to determine its rules of proceedings. He wrote:

Rules are hardly permanent in character. The prevailing view is that they are subject to
revocation, modification or waiver at the pleasure of the body adopting them as they are
primarily procedural. Courts ordinarily have no concern with their observance. They may be
waived or disregarded by the legislative body. Consequently, mere failure to conform to them
does not have the effect of nullifying the act taken if the requisite number of members have
agreed to a particular measure. The above principle is subject, however, to this qualification.
Where the construction to be given to a rule affects persons other than members of the
legislative body the question presented is necessarily judicial in character. Even its validity is
open to question in a case where private rights are involved.

In this case no rights of private individuals are involved but only those of a member who, instead of seeking
redress in the House, chose to transfer the dispute to this Court. We have no more power to look into the
internal proceedings of a House than members of that House have to look over our shoulders, as long as no
violation of constitutional provisions is shown.

D. DISCIPLINE OF MEMBERS

Art. VI, Sec. 16 (3) Each House may determine the rules of its
proceedings, punish its Members for disorderly behaviour, and with
the concurrence of two-thirds of all its Members, suspend or expel a
Member. A penalty of suspension, when imposed, shall not exceed
sixty days.

• Each house may punish it members for "disorderly behaviour." What constitutes
"disorderly behaviour" is solely within the discretion of the house concerned.

• Although a member of either house cannot be held accountable in any other place
for any speech he make in the Congress or in any committee thereof, he can be
found guilty of disorderly behaviour by his own peers, so ruled the Court in the
case of Osmena vs. Pendatun.3

• The penalty may consist of (1) censure; or upon a 2/3 vote of all the members of
the house, (2) suspension, not exceeding 60 days, or (3) expulsion.

• The history behind the 60-day limitation on the period of suspension could be
traced to the early case of Alejandrino vs. Quezon.4 In a dictum, the SC said that it
was not within the power of the legislature to suspend its member, since
suspension deprived the constituents of the member suspended of the right to be
represented by a representative that they really had. In effect, suspension
punished the constituents. In the case of expulsion, the constituents could at
least elect someone else to substitute the member represented.

• If the only disciplinary measures were limited to expulsion and censure, however,
there might not be a penalty appropriate enough for a disorderly behaviour that
merited something more than censure but less than expulsion. It was this

3 G.R. No. L-17144, October 28, 1960 (109 Phil. 863)


4 G.R. No. 22041, September 11, 1924
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Atty. Rene Callanta, Jr.
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dilemma, that the Court precisely faced in Osmena v. Pendatun, which made it upheld
the suspension of 15 months despite the Alejandrino ruling.

• Thus, the 1973 Constitution devised a system of allowing suspension as a penalty


but limited its period to 60 days [Art. VII, Sec. 7(3)]. This was carried over in the
1987 Constitution. [Art. VI, Sec. 16(3)]

Alejandrino vs. Quezon, G.R. No. 22041, September 11, 1924 (46 Phil. 83)

FACTS: The petitioner in this original petition for mandamus and injunction is Jose Alejandrino, a Senator
appointed by the Governor General to represent the 12th Senatorial District. The casus belli is a resolution
adopted by the Philippine Senate composed of the respondent Senators, on 2/5/24, depriving Alejandrino of all
the prerogatives, privileges, and emoluments of his office for the period of 1 yr from 1/24 having been declared
guilty of disorderly conduct and flagrant violation of the privileges of the Senate for having treacherously
assaulted Senator de Vera on the occasion of certain phrases being uttered by the latter in the course of the
debate regarding the credentials of Mr. Alejandrino. The burden of petitioner's complaint is that the resolution
is unconstitutional and entirely of no effect.

HELD: The Organic Act authorizes the Governor-General to appoint 2 senators and 9 representatives to
represent the non-Christian regions in the Legislature. These senators and representatives "hold office until
removed by the Governor-General" They may not be removed by the Legislature. However, to the Senate and
the House of Representatives respectively, is granted the power to "punish its members for disorderly behavior,
and, with the concurrence of 2/3, expel an elective member." xxx. The Constitution has purposely withheld
from the 2 Houses of the Legislature and the Governor General alike the power to suspend an appointive
member. The reason is obvious. Punishment by way of reprimand or fine vindicates the outraged dignity of
the House without depriving the constituency of representation; expulsion, when permissible, likewise vindicates
the honor of the legislative body while giving to the constituency an opportunity to elect anew; but suspension
deprives the electoral district of representation without that district being afforded any means by which to fill
the vacancy. By suspension, the seat remains filled but the occupant is silenced. Suspension for 1 yr. is
equivalent to qualified expulsion or removal.

However, the writ prayed for cannot issue, for the reason that the SC does not possess the power of coercion to
make the Philippine Senate take any particular action.

Osmena vs. Pendatun, G.R. No. L-17144, October 28, 1960 (109 Phil. 863)

Compared with Alejandrino v. Quezon: It is true that in Alejandrino an obiter dictum that "suspension deprives
the electoral district of representation without that district being afforded any means by which to fill that
vacancy." But the remark should be understood to refer particularly to the appointive senator who was then
the affected party and who was then the affected party and who was by the same Jones Law charged with the
duty to represent the 12th District xxx.

It must be observed, however, that at that time the Legislature had only those powers which were granted to it
by the Jones Law; whereas now the Congress has the full legislative powers and prerogatives of a sovereign
nation, except as restricted by the Constitution. xxx Now, the Congress has the inherent legislative prerogative
of suspension which the Constitution did not impair.

"The Legislative power of Congress is plenary, subject only to such limitations as are found in the Constitution
So that any power deemed to be legislative by usage or tradition, is necessarily possessed by the Congress,
unless the Constitution provides otherwise." (Vera v. Avelino, 77 Phil. 192.)

Expulsion compared with exclusion under Art. VI, Sec. 17

Expulsion under Art. VI, Sec. 16(3) should be distinguished from exclusion under Art. VI,
Sec. 17,

Art. VI, Sec. 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their respective
Members. xxx
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Atty. Rene Callanta, Jr.
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• Under the latter, Electoral Tribunals of the Senate and the House, determine
election contests. They shall be the sole judges of the elections, returns, and
qualifications of their elective members. Each Electoral Tribunal is independent of
the other; this emphasizes the exclusive character of the jurisdiction conferred
upon each House. However, each Tribunal cannot add to the qualifications or
disqualifications found in the Constitution. Thus, the Electoral Tribunal is without
power to exclude any member-elect who meets all the Constitution's requirements
for membership.

E. JOURNAL AND CONGRESSIONAL RECORDS

Art. VI, 16(4) Each House shall keep a Journal of its proceedings and
from time to time publish the same, excepting such parts as may, in
its judgment, affect national security; and the yeas and nays on any
question shall, at the request of one-fifth of the Members present,
be entered in the Journal.

Each House shall also keep a Record of its proceedings.

• The journal is only a resume of minutes of what transpired during a legislative


session.

• The record is the word-for-word transcript of the proceedings taken during the
session.

(1) The Enrolled Bill Doctrine

Once a bill has been approved by both houses (the procedure will be discussed later),
the bill is engrossed or enrolled, and this "Enrolled Copy of the Bill" bears the
certification of the Presiding Officer of the house (either Senate President or Speaker of
the House) that this bill as enrolled is the version passed by each house. The purpose of
the certification is to prevent attempts at smuggling in "riders". The enrolled copy is
then sent to the President for his action.

What happens if there is a discrepancy between the enrolled copy of the bill, and any
other copy of the bill? The enrolled bill prevails, says the SC in the following cases.

Mabanag vs. Lopez Vito, G.R. No. L-1123 March 5, 1947 (78 Phil. 1)

FACTS: Three of the plaintiff senators and 8 of the plaintiff representatives had been proclaimed by a majority
vote of the COMELEC as having been elected senators and representatives in the elections held on 4/23/46.
The 3 senators were suspended by the Senate shortly after the opening of the first session following the
elections, on account of alleged irregularities in their election. The 8 representatives since their election had not
been allowed to sit in the lower House, except to take part in the election of Speaker, for the same reason,
although they had not been formally suspended.

As a consequence, these 3 senators and 8 representatives did not take part in the passage of the questioned
resolution, nor was their membership reckoned in the computation of the necessary 3/4 vote which is required
in proposing an amendment to the Constitution (the Parity Rights Amendment.) If these members had been
counted, the affirmative votes in favor of the proposed amendment would have been short of the necessary 3/4
vote in either branch of Congress.

HELD: 1. Jurisdiction.-- Both notions of jurisdiction and conclusiveness of legislative enactment are
synonymous in that both are founded upon the regard which the judiciary accords a co-equal, coordinate, and
independent branch of Govt. If a political question conclusively binds the judges out of respect to the political
departments, a duly certified law or resolution also binds the judges under the "enrolled bill rule" born of that
respect.
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Atty. Rene Callanta, Jr.
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2. Enrolled Bill Theory.-- The respondent's other chief reliance is on the contention that a duly authenticated
bill or resolution imports absolute verity and is binding on the courts.

Sec. 313 of the old Code of Civil Procedure, as amended, provides:

"Official documents may be proved as follows: ***(2) the proceedings of the xxx Congress, by
the journals of those bodies or of either house thereof, or by published statutes or resolutions,
or by copies certified by the clerk or secretary, or printed by their order; Provided, that in the
case of Acts of xxx the Phil. Leg., when there is an existence of a copy signed by the presiding
officers and secretaries of said bodies, it shall be conclusive proof of the provisions of such Acts
and of the due enactment thereof."

Reasons in support of enrollment:

Sec. 150. Reasons for Conclusiveness.-- xxx [T]he rule against going behind the enrolled bill is
required by the respect due to a co-equal and independent dept of govt, and it would be an
inquisition into the conduct of the members of the legislature, a very delicate power, the
frequent exercise of w/c must lead to endless confusion in the admin. of the law. The rule is
also one of convenience, bec. courts could not rely on the published session laws, but would be
required to look beyond these to the journals of the legislature and often to any printed bills
and amendments w/c might be found after the adjournment of the legislature. (Am. Jur.)

3. Compared w/ US v. Pons.-- The Court looked into the journals in US v. Pons because, in all probability,
those were the documents offered in evidence. It does not appear that a duly authenticated copy of the Act
was in existence or was placed bef. the Court; and it has not been shown that if that had been done, this Court
would not have held the copy conclusive proof of the due enactment of the law.

Casco Chemical Co. vs. Gimenez, G.R. No. L-17931, February 28, 1963 (7 SCRA 347)

FACTS: Pursuant to the provisions of RA 2609 (For-Ex Margin Fee Law), the CB issued Circular No. 95, fixing a
uniform margin fee of 25% on for-ex transactions. xxx Several times in Nov. and Dec. 1959, petitioner Casco,
w/c is engaged in the manufacture of synthetic resin glues xxx, bought for-ex for the importation of urea and
formaldehyde-- w/c are the main RM in the production of said glues and paid the corresponding margin fee.
Petitioner had sought the refund claiming that the separate importation of urea and formaldehyde is exempt
from said fee. Although the CB issued the vouchers for the refund, the Auditor of the Bank refused to pass in
audit and approve said vouchers upon the ground that the exemption granted by the MB for petitioner's
separate importations of urea and formaldehyde is not in accord w/ the provisions of sec. 2, par. XVIII of RA
2609.

Petitioner maintains that the term "urea formaldehyde" appearing in the provision should be construed as "urea
and formaldehyde" and that the resps herein have erred in holding otherwise. xxx "Urea formaldehyde" is a
finished product, w/c is patently distinct and different from "urea" and "formaldehyde," as separate articles used
in the manufacture of the synthetic resin known as "urea formaldehyde." Petitioner contends that the bill
approved in Congress contained the copulative conjunction "and" bet. the terms "urea" and "formaldehyde" and
that the members of Congress intended to exempt "urea" and "formaldehyde" separately as essential elements
in the manufacture of the synthetic resin glue xxx citing the statements made on the floor of the Senate, during
the consideration of the bill bef. the House xxx.

HELD: Said individual statements do not necessarily reflect the view of the Senate. Much less do they indicate
the intent of the HRep. Further, the enrolled bill-- w/c uses the term "urea formaldehyde" instead of "urea and
formaldehyde,"-- is conclusive upon the courts as regards the tenor of the measure passed by Congress and
adopted by the Pres. If there has been any mistake in the printing of the bill before it was certified by the
officers of Congress and approved by the Pres., the remedy is by amendment or curative legislation.

• In the case of Morales vs. Subido,5 the SC, in upholding the enrolled bill, explained
that its basis is the separation of powers, so that the remedy of an aggrieved
party is not a judicial decree but a legislative amendment or curative legislation.
In this case, the phrase, "who has served the police department of city or " was
omitted from the engrossed copy of the Police Act of 1966, thereby changing the
qualifications required by the law of a chief of a city police agency. It was clear
from the records and journal that the omission took place not any stage of the

5 G.R. No. L-29658, November 29, 1968 (27 SCRA 131)


Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 40 of 44

legislative proceedings, but only during its enrollment. It was further clear that
the change was made not by Congress, but only by an employee. And yet the SC
refused to go behind the enrolled Act to discover what really happened, because of
the respect due the other departments.

• The case was different in Astorga vs. Villegas,6 because here, upon being informed
that the enrolled bill did not contain the amendment proposed by Senator
Tolentino (regarding the powers of the Vice-Mayor of Manila) when the house bill
was raised to the Senate, the Senate President, withdrew his signature and
notified the President of the mistake, who then likewise withdrew his signature.
There was no occasion, then, to apply the enrolled bill theory.

(2) Probative Value of the Journal

• The journal is conclusive on the courts as to its contents, so the SC ruled in the
case of US vs. Pons, 34 Phil. 729 (1916). Pons, in this case was prosecuted under a
criminal statute. He contended, however, that the statute was passed past the
midnight after February 28, 1914, the last day of session of the legislative body,
but that the members stopped the clock at mid-night, to pass the law. The SC
rejected this claim, ruling that the probative value of the journal could not be
questioned, otherwise proof of legislative action would be uncertain and would
now have to depend on the imperfect memory of men.

US vs. Pons, G.R. No. L-11530, August 12, 1916 (34 Phil. 729)

FACTS: Juan Pons was accused of violating Act 2381 which prohibits the illegal importation of opium. In his
motion for the reversal of his conviction, counsel contented that the last day of the special sessions of the
Legislature for 1914 was 2/28; that Act 2381, under which Pons must be punished if found guilty, was not
passed or approved on 2/28 but on 3/1 of that yr; and that, therefore, the same is null and void. The validity of
the Act is not otherwise disputed. As it is admitted that the last day of the special session was, under the Gov-
Gen's proclamation, 2/28 and that the appellant is charged w/ having violated Act 2381, the vital question is the
date of the adjournment of the Legislature, and this reduces itself to 2 others, namely, (1) how that is to be
proved, whether by the legislative journals or extraneous evidence, and (2) whether the court can take judicial
notice of the journals.

HELD: A. While there are no adjudicated cases in this jurisdiction upon the exact question w/n the courts may
take judicial notice of the legislative journals, it is well settled in the US that such journals may be noticed by
courts in determining the question w/n a particular bill became a law or not. And these journals show, w/
absolute certainty, that the Legislature adjourned sine die at 12 o'clock on 2/28/14.

B. We will inquire w/n the courts may go behind the legislative journals for the purpose of determining the date
of adjournment when such journals are clear and explicit.

Counsel for appellant, in order to establish his contention, must necessarily depend upon the memory or
recollection of witnesses, while the legislative journals are the acts of the Govt or the sovereign itself. From
their very nature and object the records of the Leg are as important as those of the judiciary, and to inquire into
the veracity of the journals of the Leg., when they are clear and explicit, would be to violate both the letter and
spirit of the organic laws by w/c the Phil. Govt was brought into existence, to invade a coordinate and
independent dept of the Govt, and to interfere w/ the legitimate powers and functions of the Leg. xxx If the
clock, was, in fact stopped, as here suggested, "the resultant evil might be slight as compared w/ that of
altering the probative force and character of legislative records, and making the proof of legislative action
depend upon uncertain oral evidence, liable to loss by death or absence, and so imperfect on account of the
treachery of memory xxx.

(3) Matters Required to be Entered in the Journal

The Constitution requires that the following matters be contained in the journal:
(a) The yeas and nays on third and final reading of a bill [Art. VI, Sec. 26(2)];

6 G.R. No. L-23475 April 30, 1974


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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 41 of 44

(b) Veto message of the President (i.e., his objection to a bill when he vetoes it) [Art. VI,
Sec. 27(1)];
(c) The yeas and nays on the repassing of a bill vetoed by the President (Art. VI, Sec.
27(1)];
(d) The yeas and nays on any question at the request of 1/5 of the members present
[Art. VI, Sec. 16(4)]

• In addition, the journal contains the summary of the proceedings.

• A record, on the other hand, contains the verbatim transcript of all proceedings of
the house or its committees. The Constitution is silent as to what the record must
contain.

• However, in Art. XI, Sec. 3(3), the Constitution speaks of the vote of each member of
the House either affirming a favorable or overriding its contrary resolution of the
impeachment complaint to be "recorded."

(4) Journal Entry Rule vs. Enrolled Bill Theory

• In the Astorga v. Villegas case, the SC, by way of obiter, indicated that the journal
might really prevail over the enrolled bill, since a journal is required by the
Constitution while the enrollment of a bill is just a legislative practice that is not
even mentioned in the Constitution. Further, enrollment does not add to the
validity of the bill, for what makes it valid are the votes of the members.

But this view is mere dictum. It contradicts the ruling in Morales v. Subido that the enrolled
copy prevails over the journal. It also contradicts the ratio in Marshall Field & Co. v Clark,
143 US 649 (1891) that the parties were not competent to show from the journal that the
bill in the custody of the Secretary of State was against the contents of the journal,
because journals are just kept by clerks who could be mistaken, while the certified bill is
made by the highest officer of the chamber.

* To reconcile these two views, it may be said that, as to matters required by the
Constitution to be placed in the journal, the journal is conclusive. But aside from these 4
matters, any other matter does not enjoy such conclusiveness.

Astorga vs. Villegas, G.R. No. L-23475, April 30, 1974 (56 SCRA 714)

FACTS: House Bill No. 9266, which was filed in the House of Representatives, passed on 3rd reading without
amendments. It was sent to the Senate for concurrence. It was referred to the appropriate Senate Committee,
w/c recommended approval w/ a minor amendment recommended by Sen. Roxas. When the bill was discussed
on the Senate floor, substantial amendments to Sec. 1 were introduced by Sen. Tolentino, w/c amendments
were approved in toto by the Senate. xxx On 5/21/54, the Sec. of the Senate sent a letter to HRep that the
House bill had been passed by the Senate w/ amendments. Attached was a certification of the amendment,
w/c was the one recommended by Sen. Roxas, and not the Tolentino amendments w/c were the ones actually
approved by the Senate. The HRep signified approval as sent back to it. The printed copies were then certified
and attested to by the Secretaries of the Senate and of the HRep, the Speaker of the HRep, and the Senate
Pres.

It was later made public by Sen. Tolentino that the enrolled copy of House Bill no. 9266 signed into law by the
President was a wrong version of the bill actually passed by the Senate and approved on the Senate floor. The
Senate Pres. admitted this mistake in a letter to the President. As a result, the President sent a message to the
presiding officers of both Houses informing them that in view of the circumstances he was officially withdrawing
his signature on House Bill no. 9266.

Upon the foregoing facts, the Mayor of Manila issued circulars ordering the disregard of the provisions of RA
4605. He also issued an order recalling 5 members of the city police force who had been assigned to the Vice-
Mayor presumably under authority of RA 4065.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 42 of 44

Reacting to these steps, the then Vice-Mayor Astorga, filed a petition eith this Court for "Mandamus, Injunction
and/or Prohibition with Preliminary Mandatory and Prohibitory Injunction" to compel compliance with the
provisions of RA 4065.

Respondents' position is that RA 4065 never became law since it was not the bill actually passed by the Senate,
and that the entries in the journal of that body and not the enrolled bill itself should be decisive in the resolution
of the issue.

HELD: 1. Petitioner's argument that the attestation of the presiding officers of Congress is conclusive proof of
a bill's due enactment, required, it is said, by the respect due to a co-equal department of the government, is
neutralized in this case by the fact that the Senate President. declared his signature on the bill to be invalid and
issued a subsequent clarification that the invalidation of his signature meant that the bill he had signed had
never been approved by the Senate. Obviously this declaration should be accorded even greater respect than
the attestation it invalidated, which it did for a reason that is undisputed in fact and indisputable in logic.

As far as Congress itself is concerned, there is nothing sacrosanct in the certification made by the presiding
officers. It is merely a mode of authentification. It is the approval by Congress and not the signatures of the
presiding officers that is essential.

2. Petitioner agrees that the attestation in the bill is not mandatory but argues that the disclaimer thereof by
the Senate President, granting it to have been validly made, would only mean that there was no attestation at
all, but would not affect the validity of the statute. xxx This arguments begs the question. It would limit the
court's inquiry to the presence or absence of the attestation and to the effect of its absence upon the validity of
the statute. The inquiry, however, goes farther. Absent such attestation as a result of the disclaimer, and
consequently there being no enrolled bill to speak of, what evidence is there to determine w/n the bill had been
duly enacted? In such a case, the entry in the journal should be consulted.

Marshall Field & Co. vs. Clark, 143 US 649 (1891)

It is not competent for the appellant to show from the Journals that the enrolled bill contained a section that
does not appear in the enrolled Act in the custody of the State Department.

FACTS: In accordance w/ the Tariff Act of Oct. 1, 1890, duties were assessed and collected on woollen dress
goods, woollen wearing apparel, and silk embroideries imported by Field & Co.; on silk and cotton laces
imported by Sutton & Co.; and on colored cotton cloths imported by Sternbach & Co. The importers severally
protested against the assessment upon the ground that the Act was not a law of the US. It was contended,
among others, that the Tariff Act was a nullity bec. "it is shown by congressional records of proceedings,
reports of committees of conference, and other papers printed by authority of Congress, and having reference
to House Bill 9416, that a section of the bill as it finally passed, was not in the bill authenticated by the
signatures of the presiding officers of the respective houses of Congress, and approved by the Pres."

HELD: The signing by the House Speaker and by the Senate Pres. of an enrolled bill is an official attestation by
the two Houses that such bill is the one that has passed Congress. It is a declaration by the 2 houses, through
their presiding officers, to the Pres. that a bill, thus attested, has received, in due form, the sanction of the
legislative branch of the govt, and that it is delivered to him in obedience to the constitutional requirement that
all bills w/c pass Congress shall be presented to him. And when the bill thus attested is signed by the Pres.
and deposited in the archives, its authentication as a bill that has passed Congress should be deemed complete
and unimpeachable.

Morales v. Subido, G.R. No. L-29658, November 29, 1968 (27 SCRA 131)

FACTS: The present insistence of the petitioner is that the version of the provision (Sec. 10 of the Police Act of
1966), as amended at the behest of Sen. Rodrigo, was the version approved by the Senate on 3rd reading, and
that when the bill emerged from the conference committee, the only change made in the provision was the
insertion of the phrase "or has served as chief of police with exemplary record." In support of this assertion,
the petitioner submitted certified photostatic copies of the different drafts of House Bill 6951 showing the
various changes made. It is unmistakable that the phrase "who has served the police dept of a city or," was
still part of the provision, but according to the petitioner the House bill division deleted the entire provision and
substituted what is now Sec. 10 of the Act which did not carry such phrase.

It would thus appear that the omission of the phrase "who has served the police dept of a city of", was made
not at any stage of the legislative proceedings but only in the course of engrossment of the bill, more
specifically in the proofreading thereof; that the change was not made by Congress but only by an employee
thereof xxx.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 43 of 44

HELD: The petitioner wholly misconceives the function of the judiciary under our system of govt. [T]he
enrolled Act in the office of the legislative secretary of the Pres. of the Phils. shows that sec. 10 is exactly as it is
in the statute as officially published in slip form by the Bureau of Printing. We cannot go behind the enrolled
Act to discover what really happened. The respect due to the other branches of Govt demands that we act
upon the faith and credit of what the officers of the said branches attest to as the official acts of their respective
departments. Otherwise, we would be cast in the unenviable and unwanted role of a sleuth trying to determine
what actually did happen in the labyrinth of law-making, w/ consequent impairment of the integrity of the
legislative process. The investigation w/c the petitioner would like this Court to make can be better done in
Congress.

[W]e are not to be understood as holding that in all cases the journals must yield to the enrolled bill. To be
sure, there are certain matters w/c the Const. expressly requires must be entered on the journal of each house.
xxx [W]ith respect to matters not expressly required to be entered on the journal, the enrolled bill prevails in
the event of any discrepancy.

F. SESSIONS

(1) Regular sessions

Art. VI, Sec. 15. The Congress shall convene once every year on the
fourth Monday of July for its regular session, unless a different date
is fixed by law, and shall continue to be in session for such number
of days as it may determine, until thirty days before the opening of
its next regular session, exclusive of Saturdays, Sundays and legal
holidays. xxx

Sec. 16(5) Neither house during the session of the Congress shall,
without the consent of the other house, adjourn for more than three
days, nor to any other place than that in which the two houses shall
be sitting.

• “Place” as here used refers not to the building but to the political unit where the
two Houses may be sitting.

(2) Special sessions

Art. VI, Sec. 15. xxx The President may call a special session at any
time.

Special sessions are held in the following instances:

a) When the President calls for a special session at any time (Art. VI, Sec. 15)

b) To call a special election due to a vacancy in the offices of President and Vice-
President (Art. VII, Sec. 10) in which Congress shall convene at 10 a.m. of the third day
after the vacancy, without need of a call.

c) To decide on the disability of the President because the Cabinet (majority) has
"disputed" his assertion that he is able to dispose his duties and powers. (This takes
place not when the Cabinet first sends a written declaration about the inability of the
President, but after the President has disputed this initial declaration.) (Art. VII, Sec.
11.)

• Congress shall convene, if it is not in session, within 48 hours, without need of


call.

d) To revoke or extend the Presidential Proclamation of Martial Law or suspension of the


writ of habeas corpus (Art. VII, Sec. 18).
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2013-2014
Page 44 of 44

• Congress, if not in session, shall, within 24 hours following such proclamation


or suspension, convene, without need of a call.

• In the last three cases, Congress convenes without need of a call. These are
exceptions to the general rule in the 1st case that when Congress is not in
session, it can only meet in special session call by the President.

(3) Joint session

When both houses meet jointly, they generally vote separately. The reason is obvious:
there are only 24 senators, while there are at least 250 representatives. It would be bad
policy to give one vote to a Senator, who was elected "at large", and the same weight of
vote to a representative, who is either elected only by one legislative district or a party-
list.

• Joint session and separate voting take place in the following instances:

(a) Voting Separately

a) When Congress, while acting as the canvasser of votes for the President and Vice-
President, has to break the tie between two or more candidates for either position
having an equal and the highest number of votes (Art. VII, Sec. 4, par. 5).

b) When it decides (by 2/3 vote) on the question of the President's inability to discharge
the powers and duties of his office (Art. VII, Sec. 11, par. 4).

c) Whenever there is a vacancy in the Office of the VP, when it confirms the nomination
of a VP by the President from among the members of Congress; such person shall
assume office upon confirmation by a majority vote of all the members of both
Houses, voting separately (Art. VII, Sec. 9).

d) When it declares (by 2/3 vote) the existence of a state of war [Art. VI, Sec, 23(1)].

e) When it proposes to amend the Constitution (3/4 vote of the members) [Art. XVII, Sec.
1(1)].

(b) Voting Jointly

• But there is one exceptional instance when the two houses meet and vote jointly:
When, there has been a proclamation of Martial law or a suspension of the writ by
the President, and Congress has to decide whether to revoke or to extend such
proclamation or suspension (majority vote of all members, voting jointly) (Art. VII,
Sec. 18).

• There is an illogical inconsistency here. To declare a state of war, the vote is


taken separately. But to decide on an internal disorder (which is short of war)
which spurred the proclamation of Martial Law or suspension of the writ, the vote
is taken jointly. If the voting is made "joint" due to the emergency character of
the situation brought about by the invasion or rebellion, there is no reason why it
should not be so to declare the existence of war (which among others, empowers
the President to extend the tour of duty of the Chief of Staff), the danger to
national security and the emergency nature being the same, if not graver.
HAND OUT No. 5 – LEGISLATIVE DEPT. part II
By: Atty. Rene Callanta, Jr.
Constitutional Law I, 1st Semester, SY 2014-2015
P.U.P. College of Law

5. ELECTORAL TRIBUNALS

Art. VI, Sec. 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine Members,
three of whom shall be Justices of the Supreme Court to be designated
by the Chief Justice, and the remaining six shall be Members of the
Senate or the House of Representatives, as the case may be, who shall
be chosen on the basis of proportional representation from the political
parties and the parties or organizations registered under the party-list
represented therein. The senior Justice in the Electoral Tribunal shall
be its Chairman.

Id., Sec. 19. The Electoral Tribunals and the Commission on


Appointments shall be constituted within thirty days after the Senate
and the House of Representatives shall have been organized with the
election of the President and the Speaker. The Commission on
Appointments shall meet only while the Congress is in session, at the
call of its Chairman or a majority of all its Members, to discharge such
powers and functions as herein conferred upon it.

A. COMPOSITION

• The Senate and the House shall each have an Electoral Tribunal, to be composed of 9
members, 3 shall be justices of the SC to be designated by the Chief Justice, and the
remaining 6 shall be members of the respective houses chosen on the basis of "pro-
portional representation" from the political parties, and the parties or organizations
registered under the party-list system. The senior justice shall be the Chairman.

• The use of proportional representation to fill up the 6 slots reserved for members of
the particular house is different from the rule under the 1935 Constitution, which
reserved 3 seats for the majority party and another 3 seats for the minority party. In
Tanada vs. Cuenco,1 the SC ruled that the slot reserved for the minority party should not
be filled up by the majority party, even if there was only one member from the
minority party (in the person of Tanada). For to fill it up would offset the balance of
the tribunal, and this would defeat its neutrality when acting as the sole judge of all
election contests. This could not be done under the present set-up of the lower house
because of the party-list system, which makes a fixed representation impossible. On
the other hand, by making the composition proportional, the very nature of the
Electoral Tribunal as a neutral judge of election contests has been destroyed. In the
Senate, for instance, if only one senator comes from the minority party, there is no
way that he would be represented in the tribunal. At least, 2 senators are required of
the 24 members of the Senate in order to have one representative in the tribunal.
And even if this single representative vote together with the 3 justices, there is no
way for them outvote the 5 from the majority party. The case then is one of a
majority preserving its advantage. Under the system in the 1935 Constitution, so
long as there is one minority senator, there is always a clause that he could outvote
the majority, and that is when the 3 justices vote with him.

• In Abbas vs. Senate Electoral Tribunal,2 the petitioners who were protestants in a contest
before the respondent body, sought the disqualification of all the legislative members
thereof on the ground that they were among the protestees in the said contest, along

1 G.R. No. L-10520, February 28, 1957 (103 Phil. 1051)


2 G.R. No. 83767, October 27, 1988 (166 SCRA 651)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 2 of 68

with the other majority members of the Senate. (The original opposition member,
Senator Estrada, later joined the majority and was replaced by Senator Enrile, who
voluntarily inhibited himself.) In dismissing the petition, the SC said:

It seems clear that in providing for a Tribunal to be staffed by both


Justices of the Supreme Court and members of the Senate, the
Constitution intended that both those judicial and legislative
components commonly share the duty and authority of deciding all
contests relating to the election, returns and qualifications of
Senators. Said intent is more clearly signalled by the fact that the
proportion of Senators to Justices is 2 to 1 -- an unmistakable
indication that the legislative and judicial components cannot be
totally excluded from participation in the resolution of senatorial
election contests.

Where a situation is created which precludes the substitution of


any Senator sitting in the Tribunal by any of his other colleagues in
the Senate without inviting the same objections to the substitute's
competence, the proposed mass disqualification, if sanctioned and
ordered, would leave the Tribunal no alternative but to abandon a
duty that no other court or body can perform, but which it cannot
lawfully discharge is shorn of the participation of its entire
membership of Senators.

The overriding consideration should be that the Tribunal be not


prevented from discharging a duty which it alone has the power to
perform, the performance of which is in the highest interest of the
people.

It should be noted that the framers of the Constitution could not


have been unaware of the possibility of an election contest that
would involve all 24 Senators-elect, some of whom would
inevitably have to sit in judgment thereon.

Pimentel vs. HRET, G.R. No. 141489-90, November 29, 2002 (393 SCRA 227)

• Proportional representation in the House of Representatives electoral Tribunal (HRET) – Party List
Representatives

HELD: The Constitution expressly grants to the House of Representatives the prerogative, within constitutionally
defined limits, to choose from among its district and party-list representatives those who may occupy the seats
allotted to the House in the HRET and the CA. Section 18, Article VI of the Constitution explicitly confers on the
Senate and on the House the authority to elect among their members those who would fill the 12 seats for Senators
and 12 seats for House members in the Commission on Appointments. Under Section 17, Article VI of the
Constitution, each chamber of Congress exercises the power to choose, within constitutionally defined limits, who
among their members would occupy the allotted 6 seats of each chamber's respective electoral tribunal.

Thus, even assuming that party-list representatives comprise a sufficient number and have agreed to designate
common nominees to the HRET and the CA, their primary recourse clearly rests with the House of Representatives
and not with this Court. Under Sections 17 and 18, Article VI of the Constitution, party-list representatives must first
show to the House that they possess the required numerical strength to be entitled to seats in the HRET and the CA.
Only if the House fails to comply with the directive of the Constitution on proportional representation of political
parties in the HRET and the CA can the party-list representatives seek recourse to this Court under its power of
judicial review. Under the doctrine of primary jurisdiction, prior recourse to the House is necessary before petitioners
may bring the instant case to the court. Consequently, petitioners' direct recourse to this Court is premature.

The discretion of the House to choose its members to the HRET and the CA is not absolute, being subject to the
mandatory constitutional rule on proportional representation. However, under the doctrine of separation of powers,
the Court may not interfere with the exercise by the House of this constitutionally mandated duty, absent a clear
violation of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction. Otherwise, the
doctrine of separation of powers calls for each branch of government to be left alone to discharge its duties as it
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 3 of 68

sees fit. Neither can the Court speculate on what action the House may take if party-list representatives are duly
nominated for membership in the HRET and the CA.

The instant petitions are bereft of any allegation that respondents prevented the party-list groups in the House from
participating in the election of members of the HRET and the CA. Neither does it appear that after the May 11, 1998
elections, the House barred the party-list representatives from seeking membership in the HRET or the CA. Rather, it
appears from the available facts that the party-list groups in the House at that time simply refrained from
participating in the election process. The party-list representatives did not designate their nominees even up to the
time they filed the instant petitions, with the predictable result that the House did not consider any party-list
representative for election to the HRET or the CA. As the primary recourse of the party-list representatives lies with
the House of Representatives, the Court cannot resolve the issues presented by petitioners at this time.

B. NATURE OF FUNCTION

• The Electoral Commission is a constitutional creation, invested with the necessary


authority in the performance and execution of the limited and specific function
assigned to it by the Constitution. Though its composition is constituted by a majority
of members of the legislature, it is a body separate from and independent of the
legislature.

• The grant of power to the Electoral Commission to judge all contests relating to the
election, returns and qualifications of members of the legislature, is intended to be
complete and unimpaired.3

Request of Justices Melencio Herrera, Cruz and Feliciano to be relieved as members of the HRET (Res.
March 19,1991) - G.R. No. 97710, September 26, 1991

• This resolution should be read in connection with the case of Bondoc vs. Pineda, which is discussed under
Independence of the Electoral Tribunals.

FACTS: In said request, the three justices asked to be relieved from membership in the HRET. According to them,
political factors which have nothing to do with the merits of the case, were blocking the accomplishment of their
constitutionally mandated task. They therefore suggested that there should be a provision in the Constitution that
upon designation to membership in the Electoral Tribunal, those so designated should divest themselves of affiliation
with their respective political parties, to insure their independence and objectivity as they sit in Tribunal delib-
erations.

HELD: The SC resolved to direct them to return to their duties in the Tribunal. According to the court, in view of the
sensitive constitutional functions of the Electoral Tribunals as the "sole judge" of all contests relating to the election,
returns and qualifications of the members of Congress, all members of these bodies should be guided only be purely
legal considerations in the decision of the cases before them and that in the contemplation of the Constitution, the
members-legislators, thereof, upon assumption of their duties therein, sit in the Tribunal no longer as
representatives of their respective political parties but as impartial judges. To further bolster the independence of
the Tribunals, the term of office of every member thereof should be considered co-extensive with the corresponding
legislative term and may not be legally terminated except only by death, resignation, permanent disability, or
removal for valid cause, not including political disloyalty.

Status of the Electoral Tribunals

• In Angara vs. Electoral Commission,4 the SC held that the then Electoral Commission was
an independent body, although attached to Congress,

• In Suares vs. Chief Accountant, the Commission on Audit,5 (then under the 1935 Constitution)
as adjunct of Congress, was ruled to be an independent body, although attached to
Congress, and so the salary of its staffers need not be the same as those of the
Senate.

3 Angara vs. Electoral Commission, G.R. No. L-45081, July 15, 1936 (63 Phil 134)
4 Ibid
5 G.R. No. 131077, August 7, 1998
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 4 of 68

Organization:

• The Electoral Tribunal shall be constituted within 30 days after the 2 houses shall have
been organized with the election of the Senate President and the Speaker of the
House.6

Functions:7

• The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the (1) election, (2) returns,
and (3) qualifications of their respective members.

• As per the decision in the case of Vera vs. Avelino,8 the house may conduct "exclusion
proceedings," and by a vote of the majority deny admission to a member-elect
pending the resolution of complaints concerning his election.

• Even if the Constitution vests in the Electoral Tribunal the power to decide the
election, returns and qualifications of member-elect, there may be no electoral
contest, and so no occasion for the Electoral Tribunal to exercise its jurisdiction. If,
for instance, S is the only candidate and he suffers from a disqualification, e.g.,
citizenship, there would be no election contest since there would be no protestant, and
so the jurisdiction of the tribunal could not be invoked. In this case, the house could
not be denied the power to pass on this member-elect's qualifications.

• The opposite is an "expulsion proceeding" where a sitting member is ousted for


disorderly behavior by a vote of 2/3 pf all the members of the particular house.

Guerrero vs. COMELEC, G.R. No. 137004, July 26, 2000 (336 SCRA 458)

• Demarcation between the jurisdictions of the COMELEC and Electoral Tribunals regarding questions as to its
elections and qualifications

HELD: In the present case, we find no grave abuse of discretion on the part of the COMELEC when it held that its
jurisdiction over Case No. SPA 98-277 had ceased with the assumption of office of respondent Fariñas as
Representative for the first district of Ilocos Norte. While the COMELEC is vested with the power to declare valid or
invalid a certificate of candidacy, its refusal to exercise that power following the proclamation and assumption of the
position by Fariñas is a recognition of the jurisdictional boundaries separating the COMELEC and the Electoral
Tribunal of the House of Representatives (HRET). Under Article VI, Section 17 of the Constitution, the HRET has sole
and exclusive jurisdiction over all contests relative to the election, returns, and qualifications of members of the
House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office
as a member of the House of Representatives, COMELEC's jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRET's own jurisdiction begins. Thus, the COMELEC's decision to
discontinue exercising jurisdiction over the case is justifiable, in deference to the HRET's own jurisdiction and
functions.

Lazatin vs. COMELEC, G.R. No. 80007, January 25, 1988 (157 SCRA 337)

• Demarcation between the jurisdictions of the Regular Courts and Electoral Tribunals regarding questions as
to its elections and qualifications

HELD: The petition is impressed with merit because petitioner has been proclaimed winner of the Congressional
elections in the first district of Pampanga, has taken his oath of office as such, and assumed his duties as
Congressman. For this Court to take cognizance of the electoral protest against him would be to usurp the functions
of the House Electoral Tribunal. The alleged invalidity of the proclamation (which had been previously ordered by the
COMELEC itself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of
the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the
Electoral Tribunal.

6 Art. VI, Sec. 19


7 id., Sec. 17
8 G.R. No. L-543, August 31, 1946
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 5 of 68

C. INDEPENDENCE OF THE ELECTORAL TRIBUNALS

• Although the Electoral Tribunals are predominantly legislative in membership and the
provision creating them is found in Article VI on the Legislative Department, it is not
correct to say that they are mere adjuncts of the Congress of the Philippines. In fact,
in the discharge of their constitutional duties, they are independent of the legislature,
and also of the other departments for that matter.

• In the case of Bondoc vs. Pineda,9 201 SCRA 792, the question raised was whether the
House of Representatives could, at the request of the dominant political party therein,
change its representative in the HRET, presumably to thwart the promulgation of a
decision freely reached by the Tribunal. While acknowledging the independence of the
Tribunal as the "sole judge" of election contests involving the members of the House
of Representatives, the SC assumed jurisdiction, precisely to protect that
independence. The SC held that the independence of the HRET would become a myth
and its proceedings a farce if the House of Representatives of the majority party
therein, may shuffle and manipulate the political (as distinguished from the judicial)
component of the HRET, to serve the interests of the party in power.

• The resolution of the House of Representatives removing Congressman Camasura


from the HRET for disloyalty to the LDP, because he cast his vote in favor of the NP's
candidate, Bondoc, is a clear impairment of the constitutional prerogative of the HRET
to be the sole judge of the election contest between Bondoc and Pineda. To sanction
such interference by the House of Representative in the work of the HRET would
reduce the Tribunal to a mere tool for the aggrandizement of the party in power which
the three SC justices and the lone minority member would be powerless to stop. A
minority party candidate may as well abandon all hope at the threshold of the
Tribunal.

• As judges, the members of the HRET must be non-partisan. They must discharge
their functions with complete detachment, impartiality and independence -- even
independence from the political party to which they belong.

Bondoc vs. Pineda, G.R. No. 97710, September 26, 1991 (201 SCRA 792)

FACTS: Pineda (LDP) and Bondoc (NP) both ran as congressional reps for the 4th district of Pampanga. Pineda won
but Bondoc filed a protest in the House of Reps Electoral Tribunal (HRET), which is composed of 9 members, 3 of
whom are SC justices, and the remaining 6 are members of the House chosen on the basis of proportional
representation from the political parties & the parties or organizations registered under the party-list system
represented therein. The HRET decided in favor of Bondoc. Cong. Camasura, an LDP, voted in favor of Bondoc.
Before Bondoc could be proclaimed, the LDP expelled Camasura as member of the party. The 3 justices who also
voted for Bondoc asked to be relieved from their assignment in the HRET because the withdrawal of Camasura as
HRET rep of LDP in effect was a way of aborting the proclamation of Bondoc (NP). [Request of Justices Melencio
Herrera, Cruz and Feliciano to be relieved as members of the HRET (Res. March 19,1991)]

ISSUES: 1. May the House of Reps at the request of the dominant political party therein, change the party's
representation in the HRET to thwart the promulgation of a decision freely reached by the tribunal in an election
contest pending therein?
2. May the Supreme Court review and annul that action of the House?

HELD: as to Issue #1:

1. No. The use of the word "SOLE" in both Sec. 17 of Art. VI of the 1987 Consti & Sec. 11 of Art. VI of the 1935
Consti underscores the EXCLUSIVE jurisdiction of the HRET as judge of contests relating to the ELECTION, RETURNS
& QUALIFICATIONS of the members of the House (Robles v. HRET, GR 88647,1990). The tribunal was created to
function as a NON-PARTISAN court although 2/3 of its members are politicians. It is a NON-POLITICAL body in a sea
of politicians x x x. To be able to exercise exclusive jurisdiction, the HRET must be INDEPENDENT. Its jurisdiction to
hear and decide congressional election contests is not shared by it with the Legislature nor with the courts.

9 G.R. No. 97710, September 26, 1991


Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 6 of 68

2. As judges, the members of the tribunal must be NON-PARTISAN. They must discharge their functions with
complete detachment, impartiality, & independence- even independence from the political party to which they
belong. Hence, DISLOYALTY TO PARTY & BREACH OF PARTY DISCIPLINE are NOT VALID grounds for the expulsion
of a member of the tribunal. In expelling Cong. Camasura from the HRET for having cast a "conscience vote" in favor
of Bondoc, based strictly on the result of the examination & appreciation of the ballots & the recount of the votes by
the tribunal, the house committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its
resolution of expulsion against Camasura is null & void.

As to issue #2: Yes. The power & duty of the courts to nullify, in appropriate cases, the actions of the executive &
legislative branches of the Govt., does not mean that the courts are superior to the President & the legislature. It
does mean though that the judiciary may not shirk the "irksome task" of inquiring into the constitutionality & legality
of legislative or executive action when a justiciable controversy is brought before the courts by someone who has
been aggrieved or prejudiced by such action, as in this case. It is "a plain exercise of the judicial power, that power
to hear and dispose of a case or controversy properly brought before the court, to the determination of which must
be brought the test & measure of the law (Vera v. Avelino, 77 Phil 192).

D. POWERS

• In the earlier case of Angara vs. Electoral Commission,10 it was held that the respondent
body had the exclusive right to prescribe its own rules of procedure, as against those
earlier adopted by the legislature itself, in connection with the election contests under
its jurisdiction. This ruling was recently affirmed by the SC in Lazatin vs. House Electoral
Tribunal.11 The SC held that:

The power of the HRET, as the sole judge of all contests relating to the
election, returns and qualifications of the Members of the House of
Representatives, to promulgate rules and regulations relative to matters
within its jurisdiction, including the period for filing election protests
before it, is beyond dispute. Its rule making power necessarily flows
from the general power granted to it by the Constitution. This is the
import of the case Angara vs Electoral Commission. In such case, the SC
held that the creation of the Electoral Commission carried with it ex
necesitate rei the power regulative in character to limit the time within
which protests intrusted to its cognizance should be filed. Where a
general power is conferred, every particular power necessary for the
exercise of the one or the performance of the other is also conferred. In
the absence of any further constitutional provision relating to the proce-
dure to be followed in filing protests before the Electoral Commission,
therefore, the incidental power to promulgate such rules necessary for
the proper exercise of its exclusive power to judge all contests relating to
the election, returns and qualifications of the members of the legislature,
must be deemed by necessary implication to have been lodged also in
the Electoral Commission.

Vilando vs. HRET, GR Nos. 192147 & 192149, August 23, 2011

• Citizenship issues regarding members of Congress within the jurisdiction of the Electoral Tribunals

HELD: Citizenship, being a continuing requirement for Members of the House of Representatives, however, may be
questioned at anytime. The HRET has jurisdiction over quo warranto petitions, specifically over cases challenging
ineligibility on the ground of lack of citizenship.

E. JUDICIAL REVIEW OF DECISIONS OF ELECTORAL TRIBUNALS

Co vs. HRET, G.R. Nos. 92191-92, July 30, 1991 (199 SCRA 692)

FACTS: Co, Balinquit & Ong ran for representative of the 2nd legislative district of Northern Samar in the May 11,
1987 elections. Ong won but pets (Co & Balanquit) protested Ong's election on the ground of non-citizenship. The
HRET found for Ong.

10 G.R. No. L-45081 July 15, 1936


11 G.R. No. 84297 December 8, 1988 (168 SCRA 391)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 7 of 68

HELD: 1. Judgments of electoral tribunal are beyond judicial interference save only in the exercise of the Court's so-
called extraordinary jurisdiction, x x x upon a determination that the tribunal's decision or resolution was rendered
without or in excess of its jurisdiction, or with grave abuse of discretion or upon a clear showing of such arbitrary
and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a
demonstration of a very clear unmitigated ERROR, manifestly constituting such grave abuse of discretion that there
has to be a remedy for such abuse.

2. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of
jurisdiction, the Court cannot exercise its corrective power.

Vilando vs. HRET, GR Nos. 192147 & 192149, August 23, 2011

HELD: Well-settled is the principle that the judgments of the HRET are beyond judicial interference. The only
instance where this Court may intervene in the exercise of its so-called extraordinary jurisdiction is upon a
determination that the decision or resolution of the HRET was rendered without or in excess of its jurisdiction, or
with grave abuse of discretion or upon a clear showing of such arbitrary and improvident use of its power to
constitute a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly
constituting such grave abuse of discretion that there has to be a remedy for such abuse.

6. COMMISSION ON APPOINTMENTS

Art. VI, Sec. 18. There shall be a Commission on Appointments


consisting of the President of the Senate, as ex officio Chairman, twelve
senators, and twelve Members of the House of Representatives, elected
by each House on the basis of proportional representation from the
political parties and parties or organizations registered under the
party-list system represented therein. The Chairman of the
Commission shall not vote, except in case of a tie. The Commission
shall act on all appointments submitted to it within thirty session days
of the Congress from their submission. The Commission shall rule by a
majority votes of all the Members.

Id., Sec. 19. The Electoral Tribunals and the Commission on


Appointments shall be constituted within thirty days after the Senate
and the House of Representatives shall have been organized with the
election of the President and the Speaker. The Commission on
Appointments shall meet only while the Congress is in session, at the
call of its Chairman or a majority of all its Members, to discharge such
powers and functions as herein conferred upon it.

Composition by proportional representation has always been the rule even under the 1935
Constitution. And rightly so. For unlike the Electoral Tribunal which performs the essentially
neutral function of adjudication, the Commission on Appointments performs the essentially
political function of appointment. The distribution of political parties in the two Houses must
thus be reflected proportionately in the Commission.

• Since membership in the Commission on Appointments is based on party affiliation,


then a defection from one party to another changes the proportion in the respective
houses (which) is a valid ground for the reorganization of the commission.

• However, a mere temporary alliance, an agreement between and among members


coming from different parties to act in a concerted manner only on some issues, but
without a change in party affiliation, does not justify a call to reorganize the
commission on the ground that there is no longer proportional representation. So the
SC ruled in the case of Cunanan v. Tan.12

12 G.R. No. L-19721, May 10, 1962 (115 Phil 7)


Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 8 of 68

• In the case of Daza vs. Singson,13 the petitioner questioned his replacement in the
Commission on Appointments, insisting that his designation thereto as a
representative of the Liberal Party was permanent and could not be withdrawn. For
his part, the respondent contended that he could be validly be named in the
petitioner's place in view of the political realignment in the House following the
reorganization of the LDP to which he belonged. Both invoked the earlier Cunanan vs
Tan case, where the SC had held that the political affiliations in the two Houses of
Congress should be reflected in their respective representations in the Commission of
Appointments. The petitioner claimed that the formation of the LDP was merely a
temporary development whereas the respondent claimed that it had permanently
altered the political composition of the House. Ruling in favor of the respondent, the
SC declared that petitioner's argument is based on the non-registration of the LDP,
which he claims has not provided the permanent political realignment to justify the
questioned reorganization. However, the COMELEC then granted the petition of the
LDP for registration as a political party. Petitioner then claims that registration is not
sufficient and that the political party must pass the test of time. Under this theory, a
registered party obtaining the majority of the seats will not be entitled to
representation in the Commission on Appointments as long as it was organized only
recently and has not yet aged. If such argument is to be followed, only the Liberal
Party shall pass such test.

• The House of Representatives therefore has the authority to change its representation
in the Commission of Appointments to reflect at any time the changes that may
transpire in the political alignments of its membership. It is understood that such
changes must be permanent and do not include the temporary alliances or factional
divisions not involving severance of political loyalties or formal disaffiliation and
permanent shifts of allegiance from one political party to another.

Coseteng vs. Mitra, G.R. No. 86649, July 12, 1990 (187 SCRA 377)

FACTS: During the 1987 Congressional elections, Coseteng was the only candidate elected under the KAIBA party.
Of the 12 elected to the Commission on Appointments, Roque Ablan of the KBL, represented the Coalesced Minority.
When the LDP was organized a year later, the House Committees including the House representation in the
Commission on Appointments had to be reorganized. Coseteng requested Mitra that she be appointed a member of
the CA as a representative of KAIBA. Ablan was however retained as the 12th member representing the House
minority.

Coseteng filed a petition to declare null and void the appointment of the members of the CA on the theory that their
election to the CA violated the constitutional mandate of proportional representation.

HELD: The petition should be dismissed not because it raises a political question, which it does not, but because the
revision of the House representation in the CA is based on proportional representation of the political parties therein.

The issue is justiciable. The legality, and not the wisdom, of the manner of filling the CA, is justiciable. Even if it
were a political question, such would still come within judicial review on the issue of whether there was grave abuse
of discretion amounting to excess or lack of jurisdiction.

The composition was based on proportional representation of the political parties therein. The other minority parties
are bound by the majority's choices. Even if KAIBA were an opposition party, its lone member represents only .4%
of the House, thus she is not entitled to one of the 12 seats. The other representatives to the CA were duly elected
by the House (not by their party) as provided in Art. VI, Sec. 18. The validity of their election to the CA - eleven
from the Coalesced Majority and one from the Coalesced Minority - is unassailable.

Guingona vs. Gonzales, G.R. No. 106971, March 1, 1993 (214 SCRA 789)

FACTS: As a result of the 1992 Senatorial elections, the LDP was entitled to 7.5 seats in the CA, the NPC to 2.5, the
LAKAS-NUCD to 1.5 and the LP-PDP-LABAN to .5. The problem arose as to what to with the 1/2 to which each of
the parties is entitled. The LDP majority converted a fractional half-membership to a whole membership (7.5 + .5)
to be able to elect Senator Romulo. In so doing, one other party's fractional representation in the CA was reduced.

13 G.R. No. 86344, December 21, 1989 (180 SCRA 496)


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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 9 of 68

This is clearly a violation of Sec. 18, Art. VI because it is no longer based on proportional representation of the
political parties.

Senator Tanada claimed that he has a right to be elected as member of the CA because of the physical impossibility
of dividing a person (need to round off .5 to one senator) and because as the sole representative of his party, his
party is entitled to representation.

HELD: The provision of Section 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. No
party can claim more than what it is entitled to under such rule. Section 18 also assures representation in the CA of
any political party who succeeds in electing members to the Senate, provided that the number of senators so elected
enables it to put a representative in the CA. Therefore, in the Senate, a political party must at least have 2 duly
elected senators for every seat in the CA.

The SC does not agree that it is mandatory to elect 12 Senators to the CA. What the Constitution requires is that
there be at least a majority of the entire membership. The Constitution does not require the election and presence
of 12 senators and 12 members of the House in order that the Commission may function.

Do away with the fractional differences! Do not round off!

The election of Senator Romulo and Tanada as members of the CA was clearly a violation of Art. VI, Sec. 18.

Function (Art. VII, Sec. 16)

• The Commission shall confirm or approve nominations made by the President of


certain public officers named by the Constitution or by law:
1. heads of the executive departments
2. ambassadors, other public ministers, and consuls
3. officers of the Armed Forces from the rank of colonel or naval captain
4. other officers whose appointments are vested in him in this Constitution
a. Chairman and members of 3 Constitutional Commissions
b. regular members of the Judicial and Bar Council
c. members of the Regional Consultative council

Sessions and Procedure (Secs. 18 & 19)

• The Commission on Appointments shall meet to discharge its powers and functions
only while the Congress is in session. The meeting may be called by (a) the
Chairman, or (b) a majority of all its members.

• The Chairman of the Commission does not vote, except to break a tie. The
Commission shall act on all appointments submitted to it within 30 session days of the
Congress from their submission. The Commission rules by a majority vote of all its
members.

Regular appointment

• Regular appointment takes place when the President appoints an officer whose
appoinment requires confirmation by the Commission, while Congress is in session.
The officer so appointed cannot assume office at once. The President must first
nominate him to the Commission. Then, the Commission shall act on all appointments
submitted to it within 30 session days of the Congress from their submission (Art. VI,
sec. 18). Failure to act within the period is tantamount to disapproval of the
nomination, since the Constitution requires positive action by the Commission. If the
Congress or the Commission itself adjourns without taking any action on the
nomination, again it is deemed disapproved (or bypassed). If the Commission
approves the nomination, the Office of the President makes an "issuance of
commission." Only then can the appointee assume office.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 10 of 68

Recess appointment

• On the other hand, recess appointment takes when Congress is not in session. (This
is also known as ad-interim appointment, but the latter term is equivocal because it
can be used in 2 senses: (1) midnight appointment, which happens when the
President makes an appointment before his term expires, whether or not this is
confirmed by the Commission on Appointments, and (2) recess appointment, which
happens when the President makes appointment while Congress is in recess, whether
or not his term is about to expire.) Unlike regular appointment, the ad-interim
appointment made by the President is complete in itself, and thus effective at once,
even without confirmation. But this appointment has only temporary effect. When
Congress convenes, the Commission would have to act on the ad interim appointment
by confirming it (in which case the appointment becomes permanent) or disapproving
it by means of a positive failure to act on the appointment (in which case the
appointment is immediately terminated).

• According to the Constitution, the President shall have the power to make
appointment during the recess of the Congress, whether voluntary or compulsory, but
such appointments shall be effective only until disapproval by the Commission on
Appointments (which can only be done when Congress is in session (Art. VI, Sec. 19) or
until the next adjournment of the Congress (if the Commission fails to act earlier).
(Art. VII, Sec. 16, par. 2).

7. LEGISLATIVE POWER AND PROCESS OF CONGRESS

A. GENERAL PLENARY POWERS

Art. VI, Sec. 1. The legislative power shall be vested in the Congress of
the Philippines, which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provision on initiative and referendum.

B. LIMITATIONS ON THE LEGISLATIVE POWER

(1) Substantive limitations

(a) Express substantive limitations

1) The Bill of Rights

Art. III. Bill of Rights.

• The freedom of individuals are addressed as limitations to the power of Congress


to legislate. Thus, the provisions of the Bill of Rights begin with the phrase "No law
shall be passed".

2) Appropriation Laws

Art. VI, Sec. 29. (1) No money shall be paid out of the Treasury except
in pursuance of an appropriation made by law.

Art. VI, Sec. 25. (1) The Congress may not increase the appropriation
recommended by the President for the operation of the Government as
specified in the budget. The form, content, and manner of preparation
of the budget shall be prescribed by law.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 11 of 68

(2) No provision or enactment shall be embraced in the general


appropriations bill unless it relates specifically to some particular
appropriations therein. Any such provision or enactment shall be
limited in its operation to the appropriation to which it relates.

(3) The procedure in approving appropriations for the Congress shall


strictly follow the procedure for approving appropriations for other
departments and agencies.

(4) A special appropriations bill shall specify the purpose for which it is
intended, and shall be supported by funds actually available as certified
by the National Treasurer, or to be raised by a corresponding revenue
proposal therein.

(5) No law shall be passed authorizing any transfer of appropriations;


however, the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and
the 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) Discretionary funds appropriated for particular officials shall be


disbursed only for public purposes to be supported by appropriate
vouchers and subject to such guidelines as may be prescribed by law.

(7) 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.

General Principle

• No money shall be paid out of the Treasury except in pursuance of an appropriation


made by law. [Art. VI, Sec. 29(1)].

• All appropriation, revenue or tariff bills, bills authorizing increase of the public debt,
bills of local application, and private bills, shall originate exclusively in the House, but
the Senate may propose or concur with amendments (Sec. 24). (The reason is that the
House is the more popular chamber of Congress.)

Congressional Power of the Purse

Araullo vs. Aquino III, GR No. 209287, July 1, 2014 – DAP case

HELD: Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse whenever
it deliberates and acts on the budget proposal submitted by the Executive.14 Its power of the purse is touted as the
very foundation of its institutional strength,15 and underpins "all other legislative decisions and regulating the
balance of influence between the legislative and executive branches of government."16 Such enormous power
encompasses the capacity to generate money for the Government, to appropriate public funds, and to spend the
money.17 Pertinently, when it exercises its power of the purse, Congress wields control by specifying the PAPs for
which public money should be spent.

14 Bernas, op. cit., at 811.


15 Wander and Herbert (Ed.), Congressional Budgeting: Politics, Process and Power (1984), p. 3.
16 Wander and Herbert (Ed.), Congressional Budgeting: Politics, Process and Power (1984), at 133.
17 Bernas, op. cit., at 812.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 12 of 68

It is the President who proposes the budget but it is Congress that has the final say on matters of appropriations.18
For this purpose, appropriation involves two governing principles, namely: (1) "a Principle of the Public Fisc,
asserting that all monies received from whatever source by any part of the government are public funds;" and (2) "a
Principle of Appropriations Control, prohibiting expenditure of any public money without legislative authorization."19
To conform with the governing principles, the Executive cannot circumvent the prohibition by Congress of an
expenditure for a PAP by resorting to either public or private funds. Nor could the Executive transfer appropriated
funds resulting in an increase in the budget for one PAP, for by so doing the appropriation for another PAP is
necessarily decreased. The terms of both appropriations will thereby be violated.

General Appropriation

• The President shall submit to Congress, within 30 days from the opening of its regular
session, as the basis of the general appropriations bill, a budget of (a) expenditures,
and (b) sources of financing, including receipts from existing and proposed revenue
measures. (Art. VII, Sec. 22).

• The form, content, and manner of preparation of the budget shall be prescribed by
law. [Art. VI, Sec. 25(1), 2nd sentence].

• The Congress may not increase the appropriations recommended by the President for
the operation of the Government as specified in the budget.

• No provision or enactment shall be embrace in the general appropriations bill unless it


relates specifically to some particular appropriation therein. Any such provision or
enactment shall be limited in its operation to the appropriation to which it relates. [Art.
VI, Sec. 25(2)]

• The procedure in approving appropriations for the Congress shall strictly follow the
procedure for approving appropriations for other departments and agencies.

• If, by the end of the 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 re-enacted, and shall remain in force and effect
until the general appropriations bill is passed by the Congress. [Art. VI, Sec. 25(7)]

Special Appropriation

• A special appropriations bill shall (a) specify the purpose for which it is intended, and
(b) supported by funds, actually available as certified by the National Treasurer, or to
be raised by a corresponding revenue proposal therein. [Art. VI, Sec. 25(4)]

• (A special appropriations bill may be proposed to supply a lack or meet a new need,
like a special election. In the case of a special law to elect the President and Vice-
President, however, the requirements of the sections are specifically exempted by the
Constitution in Art. VII, Sec. 10.)

Transfer of funds already appropriated

• No law shall be passed authorizing any transfer of appropriations.

• However, the President, President of the Senate, Speaker of the House, the Chief
Justice of the Supreme Court, and the heads of the Constitutional Commission 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. [Art. VI, Sec. 25(5)]

18 Philconsa vs. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506
19 Stith, Kate, "Congress’ Power of the Purse" (1988), Faculty Scholarship Series, Paper No. 1267, p. 1345, available at
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2282&context=fss_papers (last accessed March 29, 2014).
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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• Discretionary funds appropriated for particular officials shall be disbursed only for
public purposes, to be supported by appropriate vouchers, and subject to such
guidelines as may be prescribed by law. [Art. VI, Sec. 25(6)]

• In the case of Demetria vs. Alba,20 it was held that Sec. 44 of the Budget Act of 1977 (BP
1177) granting the President the blanket authority to transfer funds from one
department to another, with or without savings, is unconstitutional.

Araullo vs. Aquino III, GR No. 209287, July 1, 2014 – DAP case

HELD: The Constitutional Commission included Section 25(5), to keep a tight rein on the exercise of the power to
transfer funds appropriated by Congress by the President and the other high officials of the Government named
therein. The Court stated in Nazareth v. Villar:21

In the funding of current activities, projects, and programs, the general rule should still be that the
budgetary amount contained in the appropriations bill is the extent Congress will determine as
sufficient for the budgetary allocation for the proponent agency. The only exception is found in
Section 25 (5), Article VI of the Constitution, by which the President, the President of the Senate,
the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads
of Constitutional Commissions are authorized to transfer appropriations to augmentany item in the
GAA for their respective offices from the savings in other items of their respective appropriations.
The plain language of the constitutional restriction leaves no room for the petitioner’s posture, which
we should now dispose of as untenable.

It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article
VI of the Constitution limiting the authority to transfer savings only to augment another item in the
GAA is strictly but reasonably construed as exclusive. As the Court has expounded in Lokin, Jr. v.
Commission on Elections:

When the statute itself enumerates the exceptions to the application of the general
rule, the exceptions are strictly but reasonably construed. The exceptions extend
only as far as their language fairly warrants, and all doubts should be resolved in
favor of the general provision rather than the exceptions. Where the general rule is
established by a statute with exceptions, none but the enacting authority can curtail
the former. Not even the courts may add to the latter by implication, and it is a rule
that an express exception excludes all others, although it is always proper in
determining the applicability of the rule to inquire whether, in a particular case, it
accords with reason and justice.

The appropriate and natural office of the exception is to exempt something from the
scope of the general words of a statute, which is otherwise within the scope and
meaning of such general words. Consequently, the existence of an exception in a
statute clarifies the intent that the statute shall apply to all cases not excepted.
Exceptions are subject to the rule of strict construction; hence, any doubt will be
resolved in favor of the general provision and against the exception. Indeed, the
liberal construction of a statute will seem to require in many circumstances that the
exception, by which the operation of the statute is limited or abridged, should
receive a restricted construction.

Accordingly, we should interpret Section 25(5), supra, in the context of a limitation on the President’s discretion over
the appropriations during the Budget Execution Phase.

X X X

The transfer of appropriated funds, to be valid under Section 25(5), must be made upon a concurrence of the
following requisites, namely:

(1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;

20 G.R. No. 71977 February 27, 1987


21 G.R. No. 188635, January 29, 2013, 689 SCRA 385, 402-404.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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(2) The funds to be transferred are savings generated from the appropriations for their respective offices;
and

(3) The purpose of the transfer is to augment an item in the general appropriations law for their respective
offices.

X X X
1st requisite:

Section 25(5), not being a self-executing provision of the Constitution, must have an implementing law for it to be
operative. That law, generally, is the GAA of a given fiscal year. To comply with the first requisite, the GAAs should
expressly authorize the transfer of funds.

2nd requisite:

In ascertaining the meaning of savings, certain principles should be borne in mind. The first principle is that
Congress wields the power of the purse. Congress decides how the budget will be spent; what PAPs to fund; and the
amounts of money to be spent for each PAP. The second principle is that the Executive, as the department of the
Government tasked to enforce the laws, is expected to faithfully execute the GAA and to spend the budget in
accordance with the provisions of the GAA. The Executive is expected to faithfully implement the PAPs for which
Congress allocated funds, and to limit the expenditures within the allocations, unless exigencies result to deficiencies
for which augmentation is authorized, subject to the conditions provided by law. The third principle is that in making
the President’s power to augment operative under the GAA, Congress recognizes the need for flexibility in budget
execution. In so doing, Congress diminishes its own power of the purse, for it delegates a fraction of its power to the
Executive. But Congress does not thereby allow the Executive to override its authority over the purse as to let the
Executive exceed its delegated authority. And the fourth principle is that savings should be actual. "Actual" denotes
something that is real or substantial, or something that exists presently in fact, as opposed to something that is
merely theoretical, possible, potential or hypothetical.22

The foregoing principles caution us to construe savings strictly against expanding the scope of the power to
augment. It is then indubitable that the power to augment was to be used only when the purpose for which the
funds had been allocated were already satisfied, or the need for such funds had ceased to exist, for only then could
savings be properly realized. This interpretation prevents the Executive from unduly transgressing Congress’ power
of the purse. X x x x

The Executive could not circumvent this provision by declaring unreleased appropriations and unobligated allotments
as savings prior to the end of the fiscal year.

3rd requisite:

The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to augment an item in
the general appropriations law for the respective offices." The term "augment" means to enlarge or increase in size,
amount, or degree.23

x x x Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which
upon implementation, or subsequent evaluation of needed resources, is determined to be deficient. In no case shall
a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations
otherwise authorized in this Act.

In other words, an appropriation for any PAP must first be determined to be deficient before it could be augmented
from savings.

Upon careful review of the documents contained in the seven evidence packets, we conclude that the "savings"
pooled under the DAP were allocated to PAPs that were not covered by any appropriations in the pertinent GAAs.

Prohibition on cross border augmentation

Araullo vs. Aquino III, GR No. 209287, July 1, 2014 – DAP case

HELD: By providing that the President, the President of the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the Heads of the Constitutional Commissions may be authorized to
augment any item in the GAA "for their respective offices," Section 25(5), has delineated borders between their

22 Sanchez v. Commission on Audit, G.R. No. 127545, April 23, 2008, 552 SCRA 471, 497.
23 Webster’s Third New International Dictionary.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 15 of 68

offices, such that funds appropriated for one office are prohibited from crossing over to another office even in the
guise of augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border transfers or
cross-border augmentations.

To be sure, the phrase "respective offices" used in Section 25(5), refers to the entire Executive, with respect to the
President; the Senate, with respect to the Senate President; the House of Representatives, with respect to the
Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional Commissions, with respect to their
respective Chairpersons.

Presidential Impoundment

Araullo vs. Aquino III, GR No. 209287, July 1, 2014 – DAP case

HELD: According to Philippine Constitution Association v. Enriquez:24 "Impoundment refers to a refusal by the
President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate
budget authority of any type." Impoundment under the GAA is understood to mean the retention or deduction of
appropriations.

Prohibited appropriation to enforce the Separation of Church and State

• General Rule: No public money or property shall be appropriated (applied, paid, or


employed), directly or indirectly, for the use, benefit, or support of any religion (sect,
church, denomination, sectarian institution, or any system of religion) or of any priest
(preacher, minister, other religious teacher, or religious dignitary).

• Exception: When such priest, et. al., is assigned to (a) the AFP; (b) any penal
institution; (c) any government orphanage; or (d) any leprosarium. [Art. VI, Sec. 29(2)]

• Appropriations laws (the spending powers of Congress (id., Sec. 25)) are tied up with Tax
laws (the power to raise revenues (id., Sec. 28)). They are two indispensable sides of a
coin. They are tied up by the principle that no money shall be paid out of the
Treasury except in pursuance of an appropriation made by law (id., Sec. 29(1)).

3) Tax laws

Id., Sec. 28. (1) The rule of taxation shall be uniform and equitable.
The Congress shall evolve a progressive system of taxation.

• Cruz: Uniformity in taxation means that persons or things belonging to the same
class shall be taxed at the same rate. It is distinguished from equality in taxation
in that the latter requires the tax imposed to be determined on the basis of the
value of the property. The present Constitution adds that the rule of taxation shall
also be equitable, which means that the tax burden must be imposed according to
the taxpayer's capacity to pay.

Id., Sec. 28 (2) The Congress may, by law, authorize the President to
fix, within specified limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts within the
framework of the national development program of the Government.

(3) Charitable institutions, churches and parsonages or convents


appurtenant thereto, mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly, and exclusively used
for religious, charitable, or educational purposes shall be exempt from
taxation.

24 G.R. No. 113105, August 19, 1994, 235 SCRA 506, 545
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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(4) No law granting any tax exemption shall be passed without the
concurrence of a majority of all the Members of the Congress.

Art. XIV, Sec. 4 (3) All revenues and assets of non-stock, non-profit
educational institutions used actually, directly, and exclusively for
educational purposes shall be exempt from taxes and duties. Upon the
dissolution or cessation of the corporate existence of such institutions,
their assets shall be disposed of in the manner provided by law.

Proprietary educational institutions, including those cooperatively


owned, may likewise be entitled to such exemptions subject to the
limitations provided by law including restrictions on dividends and
provisions for reinvestment.

Art. VI, Sec. 29. (1) No money shall be paid out of the Treasury except
in pursuance of an appropriation made by law.

(2) No public money or property shall be appropriated, applied, paid, or


employed, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution, or system of religion,
or of any priest, preacher, minister, or other religious teacher, or
dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution, or
government orphanage or leprosarium.

(3) All money collected on any tax levied for a special purpose shall be
treated as a special fund and paid out for such purpose only. If the
purpose for which a special fund was created has been fulfilled or
abandoned, the balance, if any, shall be transferred to the general
funds of the Government.

4) Jurisdiction of the Supreme Court

Art. VI, Sec. 30. No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this Constitution
without its advice and concurrence.

• Cruz: The purpose is to prevent further additions to the present tremendous case
load of the SC which includes the backlog of the past 2 decades.

5) Title of royalty

Art. VI, Sec. 31. No law granting a title of royalty or nobility shall be
enacted.

• Cruz: The purpose of this prohibition is to preserve the republican and democratic
nature of our society by prohibiting the creation of privileged classes with special
perquisites not available to the rest of the citizenry.

(b) Implied substantive limitations

(i) Non-delegation of legislative powers


Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 17 of 68

• As a general rule, legislative powers cannot be delegated, what can be


delegated is the execution of the laws under acceptable standards
limiting discretion of the executive. The Constitution, however,
provides certain specific exemptions.

A. Delegation to the President

1) Emergency powers:

Art. VI, Sec. 23. xxx


(2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period, and subject to such
restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon
the next adjournment thereof..

2) Certain taxing powers [Art. VI, Sec. 28(2)] (see Delegation of Tax Powers)

Art. VI, Sec. 28. xxx


(2) The Congress may, by law, authorize the President to fix, within
specified limits, and subject to such limitations and restrictions as it
may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the Government.

B. Delegation to Local Governments

Tax powers:

Art. X, Sec. 5. Each local government unit shall have the power to
create its own sources of revenues and to levy taxes, fees and charges
subject to such guidelines and limitations as the Congress may provide,
consistent with the basic policy of local autonomy. Such taxes, fees,
and charges shall accrue exclusively to the local governments.

Pelaez vs. Auditor General, G.R. No. L-23825, December 24, 1965 (15 SCRA 569)

FACTS: At issue here was the validity of Sec. 68 of the Revised Administrative Code empowering the President of
the Philippines to create, merge, divide, abolish or otherwise alter the boundaries of municipal corporations. Pelaez
contended that it was an invalid delegation of legislative power. The govt. argued that it was not, invoking the
earlier case of Cardona vs Binangonan, 36 Phil 547, where the power of the governor-general to transfer territory
from one municipality to another was sustained.

HELD: The SC upheld Pelaez. It ruled that the completeness test and the sufficient standard test must be applied
together or concurrently. The SC declared that the Cardona case involved not the creation of a new municipality but
merely the transfer of territory from one municipality to another. The power to fix such boundaries of existing
municipalities may partake of an administrative nature but the creation of municipal corporations is strictly legislative
in nature.

Although Congress may delegate to another branch of the Govt. the power to fill details in the execution,
enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers,
that said law: (a) be complete in itself -- it must set forth therein the policy to be executed, carried out or
implemented by the delegate -- and (b) to fix a standard -- the limits of which are sufficiently determinate or
determinable-- to which the delegate must conform in the performance of his functions. Indeed, without a statutory
declaration of policy, which is the essence of every law, and without the aforementioned standard, there would be
no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his
authority.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 18 of 68

Sec. 68 of the RAC does not meet these well settled requirements for a valid delegation of the power to fix the
details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the
President. Neither does it give a standard sufficiently precise to avoid the evil effects of undue delegation.

C. Delegation to the People

Initiative and referendum powers:

Art. VI, Sec. 32. The Congress, shall, as early as possible, provide for a
system of initiative and referendum, and the exceptions therefrom,
whereby the people can directly propose and enact laws, or approve or
reject any act or law or part thereof, passed by the Congress or local
legislative body, after the registration of a petition therefore, signed by
at least ten per centum of the total number of registered voters with
every legislative district represented by at least three per centum of
the registered voters thereof.

(ii) Prohibition against passage of irrepealable laws

• It is axiomatic that all laws, even the Constitution itself, may be


repealed or amended. No one can bind future generations to a law.

C. QUESTION HOUR

Art. VI, Sec. 22. 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 House of Representatives at least three days before
their scheduled appearance. Interpellations shall not be limited to
written questions, but may cover matters related thereto. When the
security of the State or the public interest so requires and the President
so states in writing, the appearance shall be conducted in executive
session.

• The heads of department shall appear before, and be heard, by any house, on any
matter pertaining to their departments:
(1) upon their own initiative, with the consent of the President; or
(2) upon request of either house, as the rules of that house shall provide.

(This is a carryover of the 1973 Constitution, a feature of a parliamentary system.)

• Written questions shall be submitted to the presiding officer of the house at least 3
days before the scheduled appearance. The purpose is to enable the cabinet member
to prepare.

• Interpellations shall not be limited to written questions, but may cover matters related
thereto.

• It is submitted that a member of the Cabinet may not refuse to appear before the
house. If he refuses a summons, he can be cited for contempt. If the President
forbids his appearance, still he must appear if asked by Congress. Under 1935, it was
an excuse for the President to certify that the interest of public security justifies the
refusal; under 1987, the remedy is an executive session not refusal to appear.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 19 of 68

• When the security of the State or the public interest so requires, and the President so
states in writing, the appearance shall be conducted in executive session. (It must be
noted then that the President cannot disallow the appearance but can only ask for a
closed door session).

Senate of the Philippines vs. Ermita, GR No. 169777, April 20, 2006

FACTS: In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of
officials and employees of the executive department, bureaus, and offices including those employed in Government
Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police
(PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the
Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the
railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group
(hereinafter North Rail Project).

On September 28, 2005, the President issued E.O. 464, “ENSURING OBSERVANCE OF THE PRINCIPLE OF
SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS
OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE
CONSTITUTION, AND FOR OTHER PURPOSES.” Section 1 states among others that “all heads of departments of
the Executive Branch of the government shall secure the consent of the President prior to appearing
before either House of Congress”

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the
issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the
same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senate’s
powers and functions and conceals information of great public interest and concern, filed its petition for certiorari
and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional.

HELD: Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of
the President prior to appearing before Congress. There are significant differences between the two provisions,
however, which constrain this Court to discuss the validity of these provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any
official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not
made to depend on the department heads’ possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis-à-vis Section 2, there is no reference to executive privilege at
all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on
what has been referred to as the question hour. X x x

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section
22 which provides for the question hour must be interpreted vis-à-vis Section 21 which provides for the power of
either House of Congress to “conduct inquiries in aid of legislation.” X x x

A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was
meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. X x x

In the context of a parliamentary system of government, the “question hour” has a definite meaning. It is a period
of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts
and the operation of the government, corresponding to what is known in Britain as the question period. There was a
specific provision for a question hour in the 1973 Constitution which made the appearance of ministers mandatory.
The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are
also members of the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister
and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the program of
government and shall determine the guidelines of national policy. Unlike in the presidential system where the tenure
of office of all elected officials cannot be terminated before their term expired, the Prime Minister and the Cabinet
remain in office only as long as they enjoy the confidence of the National Assembly. The moment this confidence is
lost the Prime Minister and the Cabinet may be changed.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 20 of 68

The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in
the present Constitution so as to conform more fully to a system of separation of powers. To that extent, the
question hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary
system. That department heads may not be required to appear in a question hour does not, however, mean that the
legislature is rendered powerless to elicit information from them in all circumstances. In fact, in light of the absence
of a mandatory question period, the need to enforce Congress’ right to executive information in the performance of
its legislative function becomes more imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under
discussion, it is that the Congress has the right to obtain information from any source –
even from officials of departments and agencies in the executive branch. In the United
States there is, unlike the situation which prevails in a parliamentary system such as that in Britain,
a clear separation between the legislative and executive branches. It is this very separation that
makes the congressional right to obtain information from the executive so essential, if
the functions of the Congress as the elected representatives of the people are
adequately to be carried out. The absence of close rapport between the legislative and
executive branches in this country, comparable to those which exist under a parliamentary system,
and the nonexistence in the Congress of an institution such as the British question period have
perforce made reliance by the Congress upon its right to obtain information from the executive
essential, if it is intelligently to perform its legislative tasks. Unless the Congress possesses
the right to obtain executive information, its power of oversight of administration in a system such
as ours becomes a power devoid of most of its practical content, since it depends for its
effectiveness solely upon information parceled out ex gratia by the executive.

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of
legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the
power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight
function.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in
keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when
the inquiry in which Congress requires their appearance is “in aid of legislation” under Section 21, the appearance is
mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the
Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it
under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal
branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its
demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted from this power — the President on whom
executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is
based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch
of government which is sanctioned by a long-standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the
Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only
of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This
point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon
interpellation of the Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to
pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any
reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of
department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 21 of 68

dictated by the basic rule of construction that issuances must be interpreted, as much as possible, in a way that will
render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the
appearance of department heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress
is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid
claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the
President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials
of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the
judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP,
Chief of the PNP, and the National Security Adviser), are “covered by the executive privilege.”

The enumeration also includes such other officers as may be determined by the President. Given the title of Section
2 — “Nature, Scope and Coverage of Executive Privilege” —, it is evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended to be based on a similar finding of coverage under
executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers
persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to
specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege,
the reference to persons being “covered by the executive privilege” may be read as an abbreviated way of saying
that the person is in possession of information which is, in the judgment of the head of office concerned, privileged
as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the
challenged order.

Upon a determination by the designated head of office or by the President that an official is “covered by the
executive privilege,” such official is subjected to the requirement that he first secure the consent of the President
prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned unless
the same is permitted by the President. The proviso allowing the President to give its consent means nothing more
than that the President may reverse a prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the
President under E.O. 464, or by the President herself, that such official is in possession of information that is covered
by executive privilege. This determination then becomes the basis for the official’s not showing up in the legislative
investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be
construed as a declaration to Congress that the President, or a head of office authorized by the President, has
determined that the requested information is privileged, and that the President has not reversed such determination.
Such declaration, however, even without mentioning the term “executive privilege,” amounts to an implied claim that
the information is being withheld by the executive branch, by authority of the President, on the basis of executive
privilege. Verily, there is an implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates
the implied nature of the claim of privilege authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the
Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m.,
please be informed that officials of the Executive Department invited to appear at the meeting will
not be able to attend the same without the consent of the President, pursuant to Executive Order
No. 464 (s. 2005), entitled “Ensuring Observance Of The Principle Of Separation Of Powers,
Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials
Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other
Purposes”. Said officials have not secured the required consent from the President. (Underscoring
supplied)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 22 of 68

The letter does not explicitly invoke executive privilege or that the matter on which these officials are being
requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor
does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the
hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited
officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the President, that the invited official possesses
information that is covered by executive privilege. Thus, although it is not stated in the letter that such
determination has been made, the same must be deemed implied. Respecting the statement that the invited officials
have not secured the consent of the President, it only means that the President has not reversed the standing
prohibition against their appearance before Congress.

Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch, either through the
President or the heads of offices authorized under E.O. 464, has made a determination that the information required
by the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from the
President. In fine, an implied claim of privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked
against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may
validly be claimed as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house
of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-
equal branch of government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of
executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to
determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked
therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that
renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary
quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of
the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door
Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege
under the challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in
the phrase “confidential or classified information between the President and the public officers covered by this
executive order.”

Certainly, Congress has the right to know why the executive considers the requested information privileged. It does
not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and
that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the
requested information could be classified as privileged. That the message is couched in terms that, on first
impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress
doubly blind to the question of why the executive branch is not providing it with the information that it has
requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be
clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect. (Underscoring supplied)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 23 of 68

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining
whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it
should be respected. X x x

Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly
stating the grounds therefor. X x x

Upon the other hand, 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. A useful analogy in
determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v.
U.S. declares:

The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself – his say-so does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require him to answer if ‘it clearly appears to the
court that he is mistaken.’ However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be established in court, he
would be compelled to surrender the very protection which the privilege is designed to guarantee.
To sustain the privilege, it need only be evident from the implications of the question, in
the setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious
disclosure could result.” x x x (Emphasis and underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted.
It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464,
coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress
to determine whether the withholding of information is justified under the circumstances of each case. It severely
frustrates the power of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of
office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on
the other branches of government. It may thus be construed as a mere expression of opinion by the President
regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation
of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case
of the United States where, so it claims, only the President can assert executive privilege to withhold information
from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the President’s authority and has the effect of
prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President
that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of
privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege,
as already discussed, is recognized with respect to information the confidential nature of which is crucial to the
fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption
from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive
privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in
pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in
enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President 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,” which
means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by
the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to
exercise such power. There is even less reason to uphold such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 24 of 68

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment,
might be covered by executive privilege, he must be afforded reasonable time to inform the President or the
Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the
President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of
executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary
invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and
may then opt to avail of the necessary legal means to compel his appearance.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings
conducted by it, and not with the demands of citizens for information pursuant to their right to information on
matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present
controversy is not merely the legislative power of inquiry, but the right of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power
of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen
for the production of documents pursuant to his right to information does not have the same obligatory force as a
subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact
testimony from government officials. These powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly
qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however, any executive
issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of
information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The
citizens are thereby denied access to information which they can use in formulating their own opinions on the matter
before Congress — opinions which they can then communicate to their representatives and other government
officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the
end that the government may perceive and be responsive to the people’s will. Yet, this open
dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate
its will intelligently. Only when the participants in the discussion are aware of the issues and have
access to information relating thereto can such bear fruit.

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense
explained above, just as direct as its violation of the legislature’s power of inquiry.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it
and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for
information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere
expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated.
That is impermissible. For

[w]hat republican theory did accomplish…was to reverse the old presumption in favor of secrecy,
based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty.

Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be
presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much greater value – our right as a people to
take part in government.

D. LEGISLATIVE INVESTIGATIONS

Art. VI, Sec. 21. The Senate or the House of Representatives or any of
its respective committees may conduct inquiries in aid or legislation in
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 25 of 68

accordance with its duly published rules or procedure. The rights of


persons appearing in or affected by such inquiries shall be respected.

• Each house or any of its committees may conduct "inquiries in aid of legislation"
according to its duly published rules of procedures.

• To enforce this right, the SC upheld the power of Congress to hold in contempt a
person required to appear before Congress or its committee and answer questions
relevant to a matter of legislative interest in the Arnault cases.

• In the doctrinal case of Arnault vs. Nazareno,25Arnault was cited for contempt for
persistently refusing, after taking the stand, to reveal the name of the person to
whom gave the P440,000. In connection with the legislative investigation of the
Buenavista and Tambobong Real Estates whereby a certain Bert was able to sell the
land to the government and realized P1.5 million. The second case of Arnault v.
Balagtas,26 arose when he persisted in not giving information, this time about an
affidavit which purportedly gave the details surrounding the acquisitions of the estates
by Bert and the supposed circumstances under which he gave the amount to a Jess
Santos. The Court in both cases, upheld the authority of the Senate to cite him in
contempt, and thus dismissed the habeas corpus petitions.

• When so held in contempt, since the Senate is a continuing body, the contempt seems
to be effective even beyond the session during which the contempt was made, held
the SC in Arnault, overruling the case of Lopez vs. de los Reyes,27 where the Court held
that the contempt lasted only for the session and could not be revived in the next
session by a mere reapproval of the previous contempt.

• However, the rights of the persons (a) appearing in, or (b) affected by such inquiries
shall be respected.

• Notable among these rights is the right against "self- incrimination". Usually,
immunity is granted to those who are compelled to appear.

Bengzon vs. Senate Blue Ribbon Committee, G.R. No. 89914, November 20, 1991 (203 SCRA 767)

Held: In this case, the petitioners sought to restrain the respondent from investigating their participation in the
alleged misuse of govt. funds and the illicit acquisition of properties being claimed by the PCGG for the Republic of
the Philippines. The SC granted the petition, holding that the petitioners are impleaded as defendants in a case
before the Sandiganbayan, which involves issues intimately related to the subject of contemplated inquiry before the
respondent Committee, and that no legislation was apparently being contemplated in connection with the said
investigation.

• However, the decision failed to consider that the proceeding before the
Sandiganbayan was criminal in nature and that the purpose of the legislative
investigation was to ascertain the disposition of funds and properties claimed to be
public in nature. Its findings on this matter could be the subject of legislation
although it may not have been expressly stated that such was the purpose of the
inquiry. As observed in the earlier case of Arnault vs Nazareno, the SC is bound to
presume that the action of the legislative body was with a legitimate object if it was
capable of being so construed, and it has no right to assume that the contrary was
intended.

• In the article of V.V. Mendoza, The Use of Legislative Purpose as a Limitation on the
Congressional Power of Investigation, 46 PHIL L.J. 707 (1971)

25 G.R. No. L-3820, July 18, 1950 (87 Phil 29)


26 97 Phil 350 (1955)
27 G.R. No. L-34361 November 5, 1930 (55 Phil 170)
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 26 of 68

A determination that the inquiry is for a "legislative purpose" is not the


end, but only the beginning, of the complexity.
xxx
The idea that Congress has a right to be fully informed in order that it
may legislate wisely underlies the exercise of the power to investigate,
w/ coercive power to compel disclosure. At the same time concern for
the fact that unless limited to a "legislative purpose" the power to
investigate may be used to harass individuals and invade fundamental
rights very early led the US SC to insist on a showing that investigations
be "in aid of legislation."
xxx

NORECO vs. Sang. Panlunsod of Dumaguete, G.R. No. 72492, November 5, 1987 (155 SCRA 421)

• The power to hold persons in contempt limited to Congress only, Sangunians do not have the same power

HELD: A line should be drawn between the powers of Congress as the repository of the legislative power under the
Constitution, and those that may be exercised by the legislative bodies of local government unit, e.g. the
Sangguniang Panlungsod of Dumaguete which, as mere creatures of law, possess delegated legislative power.

The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the
government vested with the legislative power, independently of the judicial branch, asserts its authority and
punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis, and local legislative
bodies cannot correctly claim to possess it for the same reasons that the national legislature does. The power
attaches not to the discharge of legislative functions per se but to the character of the legislature as one of the three
independent and coordinate branches of government. The same thing cannot be said of local legislative bodies which
are creations of law.

To begin with, there is no express provision either in the 1973 Constitution or in the Local Government Code (Batas
Pambansa Blg. 337) granting local legislative bodies, the power to subpoena witnesses and the power to punish non-
members for contempt. Absent a constitutional or legal provision for the exercise of these powers, the only possible
justification for the issuance of a subpoena and for the punishment of non-members for contumacious behavior
would be for said power to be deemed implied in the statutory grant of delegated legislative power. But, the
contempt power and the subpoena power partake of a judicial nature. They cannot be implied in the grant of
legislative power. Neither can they exist as mere incidents of the performance of legislative functions. To allow local
legislative bodies or administrative agencies to exercise these powers without express statutory basis would run afoul
of the doctrine of separation of powers.

Senate of the Phil. vs. Ermita, GR No. 169777, April 20, 2006

HELD: E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress
of the information in the possession of these officials. To resolve the question of whether such withholding of
information violates the Constitution, consideration of the general power of Congress to obtain information,
otherwise known as the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be respected.

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests
the power of inquiry in the unicameral legislature established therein – the Batasang Pambansa – and its
committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, a case decided in
1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to
legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong
Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was
called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 27 of 68

important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senate’s power to punish
Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end that it may exercise its legislative
functions advisedly and effectively, such power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry – with process to enforce it – is an essential
and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely
or effectively in the absence of information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does not itself possess the requisite
information – which is not infrequently true – recourse must be had to others who do possess it.
Experience has shown that mere requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete; so some means of
compulsion is essential to obtain what is needed.

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same
case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate. The matters which
may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows
that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the
guardian, the transaction, the Court held, “also involved government agencies created by Congress and officers
whose positions it is within the power of Congress to regulate or even abolish.”

Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold
that the power of inquiry does not extend to executive officials who are the most familiar with and informed on
executive operations.

As discussed in Arnault, the power of inquiry, “with process to enforce it,” is grounded on the necessity of
information in the legislative process. If the information possessed by executive officials on the operation of their
offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that
information and the power to compel the disclosure thereof.

As evidenced by the American experience during the so-called “McCarthy era,” however, the right of Congress to
conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the
Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation
on the part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The
provision requires that the inquiry be done in accordance with the Senate or House’s duly published rules of
procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of
procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even
if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to
obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting
in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In
such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of “executive privilege.” Since this term figures prominently in the challenged order,
it being mentioned in its provisions, its preambular clauses, and in its very title, a discussion of executive privilege is
crucial for determining the constitutionality of E.O. 464.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 28 of 68

Executive privilege

The phrase “executive privilege” is not new in this jurisdiction. It has been used even prior to the promulgation of
the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in
the legal literature of the United States.

Schwartz defines executive privilege as “the power of the Government to withhold information from the
public, the courts, and the Congress.” Similarly, Rozell defines it as “the right of the President and high-level
executive branch officers to withhold information from Congress, the courts, and ultimately the public.”

Executive privilege is, nonetheless, not a clear or unitary concept. It has encompassed claims of varying kinds. Tribe,
in fact, comments that while it is customary to employ the phrase “executive privilege,” it may be more accurate to
speak of executive privileges “since presidential refusals to furnish information may be actuated by any of at least
three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either
judicial or legislative investigations.”

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with
Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informer’s privilege, or the privilege of the Government not to disclose
the identity of persons who furnish information of violations of law to officers charged with the enforcement of that
law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental
documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique
role and responsibilities of the executive branch of our government. Courts ruled early that the
executive had a right to withhold documents that might reveal military or state secrets. The courts
have also granted the executive a right to withhold the identity of government informers in some
circumstances and a qualified right to withhold information related to pending investigations. x x x”

The entry in Black’s Law Dictionary on “executive privilege” is similarly instructive regarding the scope of the
doctrine.

This privilege, based on the constitutional doctrine of separation of powers, 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’ domestic decisional and
policy making functions, that is, those documents reflecting the frank expression necessary in intra-
governmental advisory and deliberative communications.

That a type of information is recognized as privileged does not, however, necessarily mean that it would be
considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be
asked is not only whether the requested information falls within one of the traditional privileges, but also whether
that privilege should be honored in a given procedural setting.

The leading case on executive privilege in the United States is U.S. v. Nixon, decided in 1974. In issue in that case
was the validity of President Nixon’s claim of executive privilege against a subpoena issued by a district court
requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of
privilege was based on the President’s general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the
U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a President’s
powers. The Court, nonetheless, rejected the President’s claim of privilege, ruling that the privilege must be balanced
against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that
it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for
information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare. Despite frequent assertion of
the privilege to deny information to Congress, beginning with President Washington’s refusal to turn over treaty
negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue.
However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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Nixon, recognized the President’s privilege over his conversations against a congressional subpoena. Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest
protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling
that the balance favored the President, the Court declined to enforce the subpoena.

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte
used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon
decision which explains the basis for the privilege:

“The expectation of a President to the confidentiality of his conversations and correspondences, like
the claim of confidentiality of judicial deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution x x x ”

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not
involve, as expressly stated in the decision, the right of the people to information. Nonetheless, the Court recognized
that there are certain types of information which the government may withhold from the public, thus acknowledging,
in substance if not in name, that executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG, the Court held that this jurisdiction recognizes the common law holding that there is a
“governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and
other national security matters.” The same case held that closed-door Cabinet meetings are also a recognized
limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority, the Court ruled that the right to information does not extend to
matters recognized as “privileged information under the separation of powers,” by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that
information on military and diplomatic secrets and those affecting national security, and information on
investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the
right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it
and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from
the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.

Notes on Legislative Inquiries:

• The power of Congress to conduct investigations exists for the primary purpose of
enabling it to discharge its legislative functions wisely and effectively-- to guide and
aid Congress in the enactment of laws, their amendments and as well as their repeal.

• Legislative investigations are carried out in order to ascertain (a) what new legislation
is needed (b) the existing law to be repealed and (c) whether a new legislation is
effectively accomplishing its purpose with a view of amending it. But in addition to
obtaining facts that may be useful in enacting laws, the power of inquiry may be
utilized by Congress for the scrutiny of executive action as well as the formation of
public opinion. Congressional investigations have the salutary effect of keeping the
public informed of what is happening in their government since congressional
investigations are given wide publicity by media.

• Congressional investigative function may be justified under certain provisions of the


Constitution which are judicial and executive in nature. In the exercise of the power to
confirm appointments, information concerning the qualifications of the appointee may
be investigated. The Senate may conduct an investigation into all matters pertinent to
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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the possible ratification of a treaty. The power to inquire is also implied in the
authority to impeach officials. Investigatory power is also available when Congress is
considering constitutional amendments, or the declaration of the existence of a state of
war.

• The general power of Congress in conducting investigations may be roughly divided


into two parts, one being its inquisitorial power and the other its punitive power. The
inquisitorial powers of Congress, on the one hand, consists of its authority to
summon witnesses, to extract testimony from them, and compel the production of
papers, documents and other information.

• The punitive power of the Legislature, on the other hand, consists of its authority
to deal directly, by way of contempt proceedings, with acts which inherently obstruct
or prevent the discharge of its legislative duties.

• The correlative power to punish a prevaricating witness for contempt rests on the right
of the legislature to self-preservation and is founded on "the right to prevent acts
which, in and of themselves, inherently obstruct or prevent the discharge of legislative
duties, or refusal to do that which there is an inherent legislative power to compel in
order that legislative functions may be performed." This punitive power, however,
terminates when the legislative body ceases to exist upon its final adjournment. Thus,
unlike the Senate which is a continuing body, the term of whose members expire at
different times, the life of the House of Representatives terminates upon its final
adjournment.

LIMITATIONS

1) The investigation must be in aid of legislation.

• Congress cannot conduct an investigation merely for the purpose of


investigation. No inquiry is an end in itself; it must be related to and in
furtherance of a legitimate task of Congress. Investigation of purely private
affairs of people cannot be made, as Congress cannot legislate on them.
However Congress can inquire into private affairs if they affect matters on which
Congress can legislate. Moreover, Congress cannot conduct an investigation to
find out if someone should be prosecuted criminally, or to determine if someone
is guilty or innocent of a crime, or to decide what are the rights of parties to a
controversy. Congress is not a law enforcement agency or a court.

• Unfortunately, however, the determination of what is "in aid of legislation" is not


the end but only the beginning of the complexity. If a claim is made by Congress
that an investigation is in aid of legislation, how will the court prove otherwise?
More often than not, courts are compelled to take the statement of "in aid of
legislation" at face value and render it conclusive upon themselves.

• It is difficult to define any limits by which the subject matter of its inquiry can be
circumscribed. It is not necessary that every question propounded to a witness
must be material to a proposed legislation. Materiality of the question must be
determined by its direct relation to the subject of inquiry and not by its indirect
relation to any proposed or possible legislation.

• In determining the propriety of the question propounded to a witness, thus, the


following matters are to be considered: (1) the definition of the inquiry found in
the authorizing resolution or statute; (2) the opening remarks of the committee
chair; (3) the nature of the proceedings; (4) the question itself; and (5) the
response of the committee to a pertinency objection.
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1st Semester, P.U.P. College of Law. SY 2010-2011
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2) The investigation must be in accordance with duly published rules of procedure of


Congress.

• These rules of procedure are subject to change or even suspension by Congress


at any time except if it will affect the substantive rights of the witness and other
persons involved.

3) The Constitution further mandates that the rights of witnesses appearing in or affected
by such inquiries must be respected.

• Like all other forms of governmental actions, the Bill of Rights is applicable to
congressional investigations. Witnesses at such investigations, hence, cannot be
compelled to give evidence against themselves, they cannot be subjected to
unreasonable search and seizure, and their freedoms of speech, press, religion
and political belief and association cannot be abridged.

• The right against self-incrimination applies to any witness in any proceeding,


whether civil, criminal, or investigative, who is being compelled to give
testimony that may be used against them in a subsequent criminal case. The
privilege against self-incrimination not only extends to answers that will, in
themselves support a conviction but likewise, embrace "those which would
furnish a link in the chain of evidence to prosecute the claimant for a (crime)."
The privilege, nevertheless, is operative and available only where the compelled
testimony or communication possesses a potential for incrimination. For
potential incrimination to exist, there must be a showing that (1) there is a
threat of criminal liability; (2) that such threat of criminal liability concerns the
witness himself; and (3) that such threat is real and appreciable and not
imaginary and unsubstantial. In a legislative investigation, a witness cannot
claim his right against self-incrimination in refusing to answer before any
question is propounded on him. He must wait until he is asked an incriminatory
question.

• A witness can attempt to avoid answering particular questions by claiming an


infringement of his freedom of speech, or freedom of association, belief, or
religion. To be meaningful, freedom of speech and freedom of association must
allow citizens to express ideas, even unpopular ones, and to join associations,
even infamous ones, without fear of ultimate sanction for doing so. To the
extent that testifying before a legislative committee forces one to publicly reveal
beliefs and associations when disclosure can lead to being blacklisted, socially
ostracized, or losing one's job, compelling such testimony infringes upon one's
constitutional rights. A legislative investigation may create what is called a
"chilling effect" on the exercise of these rights.

• A witness can remain silent and ultimately avoid possible sanction for a
contempt citation if he or she (1) makes a proper claim to the constitutional
protection against self-incrimination, (2) validly alleges an infringement of
freedom of religion, speech, or of the press and association and (3) validly
claims questions asked are not pertinent. However, it is apparent that but for a
limited and proper claim, none of these options is free of a substantial risk that
the witness may be wrong and have to suffer for the miscalculations. Indeed,
the legislative power of inquiry and the auxiliary power to compel testimony are
limited in theory only, but invariably unrestricted in practice.

• The 1987, as well as in the 1973 Constitution directly conferred the power of
investigation upon congressional committees. This is a significant development
since under the 1935 Constitution, the investigatory powers of the committees
were conferred by the legislature. There is a need for defining with "sufficient
particularity" the jurisdiction and purpose of investigating committees (1) as a
way of insuring the responsible exercise of delegated power and (2) as a basis
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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for determining the relevance of the questions asked. The scope of the powers
of the committee must, therefore, be delimited in order to enable the witness to
know whether the subject of investigation is proper, and, ultimately whether the
questions asked are pertinent to the subject of inquiry. In delineating this
powers, the following propositions have been made: (1) the authority of an
investigating committee to act must be determined from the rule or resolution
creating it; (2) a valid legislative purpose as distinct from a purpose merely of
exposure, must be shown; and (3) the witness must be informed as to the
pertinency of the particular question in relation to the legislative purpose.

AVAILABILITY OF JUDICIAL REVIEW

• Art. VIII Section 1 of the 1987 Constitution provides:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.

• The courts can review whether or not the questions propounded to a witness is
relevant to the subject matter of legislative investigation. Whether the alleged
immateriality of the information sought by the legislative body from a witness is relied
upon to contest its jurisdiction, the court is in duty bound to pass upon the contention.

• When a claim to the constitutional right against self-incrimination, freedom of speech,


press, religion and association is asserted to bar governmental interrogation, the
resolution of the issue always involves a balancing by the courts of the competing
private and public interests at stake in the particular circumstances shown.

• It cannot be simply assumed, however, that every congressional investigation is


justified by a public need that over-balances any private rights affected. To do so is to
abdicate the responsibility placed by the Constitution upon the judiciary to insure that
Congress does not unjustifiably encroach upon an individual's right to privacy nor
abridge his liberty of speech, press, religion or assembly. The legislative purpose
served by the inquiry will still have to be weighed against the right of the witness.
Legislative purpose serves best, not as a limitation on the power of investigation but
rather, as a counterweight to the interest in civil liberties. To presume that the purpose
is lawmaking when, in fact, it is not is to place an undue weight on one side of the
scale.

Question Hour (Art. VI, Sec. 22) and Legislative Investigation (id., Sec. 21)

a. As to persons who may appear:

22: Only a department head


21: Any person

b. As to who conducts the investigation

22: Entire body


21: Committees

c. As to subject-matter

22: Matters related to the department only


21: Any matter for the purpose of legislation.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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JOINT CONGRESSIONAL OVERSIGHT COMMITEE

ABAKADA GURO vs. Purisima, GR No. 166715, August 14, 2008

FACTS: This petition for prohibition seeks to prevent respondents from implementing and enforcing Republic Act
(RA) 9335 (Attrition Act of 2005). RA 9335 was enacted to optimize the revenue-generation capability and collection
of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and
BOC officials and employees to exceed their revenue targets by providing a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board). It
covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of
employment status.

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint
Congressional Oversight Committee composed of seven Members from the Senate and seven
Members from the House of Representatives. The Members from the Senate shall be
appointed by the Senate President, with at least two senators representing the minority. The
Members from the House of Representatives shall be appointed by the Speaker with at least
two members representing the minority. After the Oversight Committee will have approved
the implementing rules and regulations (IRR) it shall thereafter become functus officio and
therefore cease to exist.

Petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of
separation of powers. While the legislative function is deemed accomplished and completed upon the enactment and
approval of the law, the creation of the congressional oversight committee permits legislative participation in the
implementation and enforcement of the law.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the
implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006,
it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged
encroachment on the executive function of implementing and enforcing the law may be considered moot and
academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality
of the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter).

HELD: The scholarly discourse of Mr. Justice (former Chief Justice) Puno on the concept of congressional oversight
in Macalintal v. Commission on Elections (453 Phil. 586) is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight
concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with
program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess
executive conformity with the congressional perception of public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the
checks and balances inherent in a democratic system of government. x x x x x x x x x

Over the years, Congress has invoked its oversight power with increased frequency to check the perceived
"exponential accumulation of power" by the executive branch. By the beginning of the 20th century,
Congress has delegated an enormous amount of legislative authority to the executive branch and the
administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative
agencies perform their functions within the authority delegated to them. x x x x x x x x x

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three
categories, namely: scrutiny, investigation and supervision.

a. Scrutiny
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Atty. Rene Callanta, Jr.
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Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its
primary purpose is to determine economy and efficiency of the operation of government activities. In the
exercise of legislative scrutiny, Congress may request information and report from the other branches of
government. It can give recommendations or pass resolutions for consideration of the agency involved.
xxx xxx xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that are readily
available, congressional investigation involves a more intense digging of facts. The power of Congress to
conduct investigation is recognized by the 1987 Constitution under section 21, Article VI, xxx xxx
xxx

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is thru legislative
supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative area. While both congressional scrutiny
and investigation involve inquiry into past executive branch actions in order to influence future executive
branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-
making authority, and permits Congress to retain part of that delegated authority.

Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto
provisions when granting the President or an executive agency the power to promulgate regulations with the
force of law. These provisions require the President or an agency to present the proposed regulations to
Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such
legislative veto provisions usually provide that a proposed regulation will become a law after the expiration
of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the
meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress
affirmatively approves it.
X x X

In Macalintal, given the concept and configuration of the power of congressional oversight and considering the
nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in
RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was
tasked not only to monitor and evaluate the implementation of the said law but also to review, revise, amend and
approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on the
constitutional independence of the Commission on Elections.

With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither
necessarily constitutes an encroachment on the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system
of government. It may in fact even enhance the separation of powers as it prevents the over-accumulation of power
in the executive branch.

However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution
imposes two basic and related constraints on Congress. It may not vest itself, any of its committees or its members
with either executive or judicial power. And, when it exercises its legislative power, it must follow the "single, finely
wrought and exhaustively considered, procedures" specified under the Constitution, including the procedure for
enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In
particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress’ power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of confirmation and

(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative
vetoes fall in this class.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed
implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it,
retains a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative
veto in the form of a congressional oversight committee is in the form of an inward-turning delegation designed to
attach a congressional leash (other than through scrutiny and investigation) to an agency to which Congress has by
law initially delegated broad powers. It radically changes the design or structure of the Constitution’s diagram of
power as it entrusts to Congress a direct role in enforcing, applying or implementing its own laws.

Congress has two options when enacting legislation to define national policy within the broad horizons of its
legislative competence. It can itself formulate the details or it can assign to the executive branch the responsibility
for making necessary managerial decisions in conformity with those standards. In the latter case, the law must be
complete in all its essential terms and conditions when it leaves the hands of the legislature. Thus, what is left for
the executive branch or the concerned administrative agency when it formulates rules and regulations implementing
the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual
operation (contingent rule-making).

Administrative regulations enacted by administrative agencies to implement and interpret the law which they are
entrusted to enforce have the force of law and are entitled to respect. Such rules and regulations partake of the
nature of a statute and are just as binding as if they have been written in the statute itself. As such, they have the
force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality
in an appropriate case by a competent court. Congress, in the guise of assuming the role of an overseer, may not
pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of
powers established by the Constitution. In exercising discretion to approve or disapprove the IRR based on a
determination of whether or not they conformed with the provisions of RA 9335, Congress arrogated judicial power
unto itself, a power exclusively vested in this Court by the Constitution.

E. ACT AS BOARD OF CANVASSERS FOR PRESIDENTIAL AND VICE


PRESIDENTIAL ELECTIONS

Art. VII, Sec. 4. xxx


The returns of every election for President and Vice- President, duly
certified by the board of canvassers of each provinces or city, shall be
transmitted to the Congress, directed to the President of the Senate.
Upon receipt of the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of election (w/c is the 2nd
Tuesday of June), open all the certificates in the presence of the Senate
and House of Representatives in joint public session, and the Congress,
upon determination of the authenticity and due execution thereof in the
manner provided by law, canvass (i.e., tally the certificates of canvass)
the votes.

The persons having the highest number of votes shall be proclaimed


elected, but in case two or more shall have an equal and highest
number of votes (tie), one of them shall forthwith be chosen by the
vote of a majority of all the members of Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the
certificates.

RA 7166
An Act Providing for Synchronized National and Local Elections
and for Electoral Reforms

Sec. 30. Congress as the National Board of Canvassers for the Election of President and Vice-
President: Determination of Authenticity and Due Execution of Certificates of Canvass.-- Congress
shall determine the authenticity and due execution of the certificates of canvass for President and
Vice-President as accomplished and transmitted to it by the local boards of canvassers, on a showing
that: (1) each certificate of canvass was executed, signed and thumbmarked by the chairman and
members of the board of canvassers and transmitted or caused to be transmitted to Congress by
them; (2) each certificate of canvass contains the names of all of the candidates for President and
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 36 of 68

Vice-President and their corresponding votes in words and in figures; and (3) there exists no
discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any
candidate in words and figures in the same certificate.

When the certificate of canvass, duly certified by the board of canvassers of each province, city
or district, appears to be incomplete, the Senate President shall require the board of canvassers
concerned to transmit by personal delivery, the election returns from polling places that were not
included in the certificate of canvass and supporting statements. Said election returns shall be
submitted by personal delivery within two (2) days from receipt of notice.

When it appears that any certificate of canvass or supporting statement of votes by precinct
bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated
therein and may affect the result of the election, upon request of the Presidential or Vice-Presidential
candidate concerned or his party, Congress shall, for the sole purpose of verifying the actual number
of votes cast for President and Vice-President, count the votes as they appear in the copies of the
election returns submitted to it.

F. CALL A SPECIAL ELECTION IN CASE OF VACANCY IN THE OFFICES OF


PRESIDENT AND VICE-PRESIDENT

Art. VII, Sec. 10. The Congress shall, at ten o'clock in the morning of the
third day after the vacancy in the offices of the President and Vice-
President occurs, convene in accordance with its rules without need of
a call and within seven days enact a law calling for a special election to
elect a President and a Vice-President to be held not earlier than forty-
five days nor later than sixty days from the time of such call. The bill
calling such special election shall be deemed certified under paragraph
2, Section 26, Article VI of this Constitution and shall become law upon
its approval on third reading by the Congress. Appropriations for the
special election shall be charged against any current appropriations
and shall be exempt from the requirements of paragraph 4, Section 25,
Article VI of this Constitution. The convening of the Congress cannot
be suspended nor the special election postponed. No special election
shall be called if the vacancy occurs within eighteen months before the
date of the next presidential election.

• When a vacancy occurs in the offices of the President and Vice-President, more than
18 months before the date of the next regular presidential election, the Congress shall
convene at 10 AM of the 3rd day after the vacancy, in accordance with its rules,
without need of call. The convening of Congress cannot be suspended.

• Within 7 days after it convenes, it shall enact a law calling for a special election to
elect a President and Vice- President, to be held between 45 to 60 days from the day
of such call. The holding of the special election cannot be postponed.

• Not later than 30 days after the election, Congress shall again act as Board of
Canvassers (see infra), since Art. VII, Sec. 4 par. a talks of every election for
President and Vice-President.

• Thus, the timetable is:

Day 0 - vacancy occurs


Day 3 - Congress convenes without need of call
Day 10 - Congress passes the special election law, if it has not passed before this
date
Day 55 to 70 - election is held
Day 85 to 100 - as the case may be - canvassing by Congress, if it has not done so
earlier.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 37 of 68

• Under the Constitution then a vacancy is filled by the 100th day from the vacancy at
the latest.

• The law so passed is exempted from the following:

a) Certification under Art. VI, sec. 26, par. 2. Thus, the three readings can be done
all on the same day.

b) Approval by the President (for obvious reasons). The bill automatically becomes a
law, then, upon its approval on 3rd and final reading.

c) Certification by the National Treasurer of the availability of funds, or revenue


raising measure under Art. VI, Sec. 25(4). Appropriations for the special election
shall be charged against any current appropriations.

G. REVOKE OR EXTEND SUSPENSION OF PRIVILEGE OF HABEAS CORPUS OR


DECLARATION OF MARTIAL LAW

Art. VII, Sec. 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines, and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it.

The Congress, if not in session, shall within twenty-four hours following


such proclamation or suspension, convene in accordance with its rules
without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by


any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within
thirty days from its filing.

A state of martial law does not suspend the operation of the


Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

The suspension of the privilege shall apply only to persons judicially


charged for rebellion or offenses inherent in or directly connected with
invasion.
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.

• When the President suspends the privilege of the writ or proclaims martial law, then
Congress shall convene within 24 hours from the proclamation or suspension in
accordance with its rules, without need of a call, if it is not in session. The President
shall then submit a report in person or in writing to Congress, within 48 hours from
the proclamation or suspension.

• By a joint majority vote of all the members of both houses in a joint meeting, the
Congress has 2 possible courses of action:

1) To revoke (or disapprove) the proclamation or suspension, which revocation cannot


be set aside (vetoed) by the President, or

2) To extend the proclamation after 60 days, for a period to be determined by


Congress, if the causes persist.

• It must be noted that the Congress does not approve the proclamation or suspension,
but either disapproves it or extends it, because the proclamation or suspension is valid
in itself for 60 days already, and so does not require the approval of Congress for its
effectivity. What it needs is the extension that may be granted by Congress beyond
the 60-day period when it expires, which extension need not be for another 60 days
only.

H. APPROVE PRESIDENTIAL AMNESTIES

Art. VII, Sec. 19. Except in cases of impeachment, or as otherwise


provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of
a majority of all the Members of the Congress.

• The President has the power to grant amnesty with the concurrence of a majority
of all the members of Congress.

I. CONFIRM CERTAIN APPOINTMENTS

(1) Art. VII, Sec. 9 (By Congress)

Art. VII, Sec. 9. Whenever there is a vacancy in the Office of the Vice-
President during the term for which he was elected, the President shall
nominate a Vice-President from among the Members of the Senate and
the House of Representatives who shall assume office upon confirma-
tion by a majority vote of all the Members of both Houses of Congress,
voting separately.

(2) Id., Sec. 16 (By the Commission on Appointments)

Art. VII, Sec. 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law, and those
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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 39 of 68

whom, he may be authorized by law to appoint. The Congress may, by


law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments,
agencies, commissions or boards.

The President shall have the power to make appointments during the
recess of Congress, whether voluntary or compulsory, but such
appointment shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress.

• The following officers appointed by the President require confirmation by the CA:

a. Heads of departments (Art. VII, sec. 16)

b. Ambassadors, public ministers, and consuls (Art. VII, sec.16)

c. Officers of the AFP from the rank of colonel and naval captain (Art. VII, sec. 16)

d. Chairman and members of the Constitutional Commissions (Art. IX, B, C, & D, sec. 1[2])

e. Members of the Judicial and Bar Council (Art. VIII, sec. 8[2])

• In Sarmiento vs. Mison,28 the Commissioner of Customs was held not to be subject to
confirmation, being of the rank of the bureau director, who was purposely deleted
from the listing of those whose appointments had to be approved by the Commission
on Appointments. It was the clear and express intent of the framers of the
Constitution to exclude presidential appointments from confirmation by the CA, except
appointments to offices expressly mentioned in Art. VII, Sec. 16. The power to
appoint is already vested in the President, without need of confirmation by the CA.

Sarmiento vs. Mison, G.R. No. 79974, December 17, 1987 (156 SCRA 549)

FACTS: Petitioners brought this suit for prohibition in their capacity as taxpayers, members of the Bar and law
professors, to enjoin respondent Commissioner of Customs from performing his functions on the ground that his
appointment, without confirmation by the CA, is unconstitutional.

HELD: Art. VII, Sec. 16, as originally proposed by the Committe on Executive Power of the 1986 Con Com read:

Sec. 16. The President shall nominate and, with the consent of a Commission on Appointment, shall
appoint the heads of executive departments and bureaus, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain and all other
officers of the Government whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress may by law vest the appointment of
inferior officers in the President alone, in the courts, or in the heads of departments.

However, on motion of Comm. Foz, 2 changes were approved in the text of the provision. The first was to delete
the phrase "and bureaus," and the second was to place a period (.) after the word "captain" and substitute the
phrase "and all" w/ the phrase "HE SHALL ALSO APPOINT ANY." The first amendment was intended to exempt the
appointment of bureau directors from the requirement of confirmation on the ground that this position is low and to
require confirmation would subject bureau directors to political influence. On the other hand, the 2nd amendment
was intended to subject to confirmation only those mentioned in the frist sentence, namely:

The heads of the executive departments, ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in the Consti, i.e.,
(1) Regular members of the Judicial and Bar Council [Art. VIII, Sec. 8(2)]
(2) Chairman and Commissioners of the Civil Service Commission [Art. IX-B, Sec. 1 (2)];
(3) Chairman and Commissioners of the COMELEC [Art. IX-C, Sec. 1 (2)];

28 156 SCRA 549


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Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
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(4) Chairman and Commissioners of the COA [Art. IX-D, Sec. 1 (2)];
(5) Members of the regional consultative commission (Art. X, Sec. 18.)

The rest of the appointments mentioned in sec. 16 are not subject to confirmation. These are: (1) all other officers
of the Govt whose appointments are not otherwise provided for by law; (2) those whom the Pres. may be
authorized by law to appoint; and (3) officers lower in rank whose appointments Congress may by law vest in the
Pres. alone.

J. CONCUR IN TREATIES

Art. VII, Sec. 21. 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.

• This is true, although it is the President who is the chief spokesman in foreign
relations. Executive agreements do not need concurrence.

K. DECLARATION OF WAR AND DELEGATION OF EMERGENCY POWERS

Art. VI, Sec. 23. (1) The Congress, by a vote of two-thirds of both
Houses in joint sessions assembled, voting separately, shall have the
sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by


law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon
the next adjournment thereof.

• The Congress, by a vote of 2/3 of both houses in joint session assembled but voting
separately shall have the sole power to declare the existence of a state of war. [Art. VI,
Sec. 23(1)]

• In times of war or other national emergency, the Congress may authorize the
President, for a limited period and subject such restrictions as the law may prescribe,
to exercise powers necessary and proper to carry out a declared national policy. Such
powers shall cease upon the next adjournment of Congress, unless sooner withdrawn
by its resolution. [Art. VI, Sec. 23(2).]

• Although the tour of duty of the Chief of Staff of the AFP should not exceed 3 years,
the President may extend such tour of duty in times of war or other national
emergency declared by Congress. [Art. XVI, Sec. 5(7).]

L. BE JUDGE OF THE PRESIDENT'S PHYSICAL FITNESS

Art. VII, Sec. 11, par. 4. If the Congress, within ten days after receipt of
the last written declaration, or if not in session, within twelve days
after it is required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge the
powers and duties of his office, the Vice-President shall act as
President; otherwise, the President shall continue exercising the
powers and duties of his office.

• There are 3 ways in which the President may be declared unable to discharge his
functions under this article:
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 41 of 68

(1) Upon his own written declaration


(2) Upon the first written declaration by majority of his Cabinet
(3) Upon determination by Congress by 2/3 vote of all its members voting separately,
acting on the 2nd written declaration by the Cabinet

• When the President himself transmits to the Senate President and Speaker of the
House his written declaration that he is unable to discharge the powers and duties of
his office, there is no problem. The Vice-President shall discharge such powers and
duties as Acting President, until the President transmit to the Senate President and
Speaker a written declaration that he is no longer unable to discharge his powers and
duties.

• The problem arises when a majority of all members of Cabinet transmit to the Senate
President and Speaker their written declaration that the President is unable to
discharge his office. Upon such transmittal, the Vice-President shall "immediately"
assume the office as Acting President.

• The President can contest this by transmitting to the Senate President and Speaker
his written declaration that no inability exists. Upon such transmittal, he shall
reassume his office.

• But if the majority of all the members of the Cabinet really believe otherwise, they can
contest this "declaration of non- inability" by again sending a second written
declaration to the Senate President and Speaker, within 5 days from the time the
President transmitted his written declaration of non-inability.

• It is this second cabinet written "declaration of inability" that brings in the Congress as
judge of the President's ability to discharge his office.

• The Vice-President in this second instance does not act as President: the President
having spoken as against his Cabinet, his declaration entitles him to stay until
Congress says otherwise. But if the Cabinet submits the declaration more than 5 days
after the President reassumes office, this may be viewed as a new declaration, and so
the Vice-President can immediately act as President.

• Congress must convene (a) within 10 days after receipt of the 2nd written declaration
by the Cabinet, if it is in session, or (b) within 12 days after it is required to assemble
by its respective presiding officer, if it is not in session.

• In a joint session, the Congress shall decide the President's ability. Two-thirds vote
by each house, voting separately, is required to declare the President's inability. In
other words, if 2/3 of each house vote that the President must step down, the Vice-
President shall act as President. But if less than 2/3 of each House vote that the
President is unable, the President shall continue in office.

M. POWER OF IMPEACHMENT

• Impeachment is the most difficult and cumbersome mode of removing a public officer from office. It is, by
nature, a sui generis politico-legal process that signals the need for a judicious and careful handling as
shown by the process required to initiate the proceeding; the one-year limitation or bar for its initiation; the
limited grounds for impeachment; the defined instrumentality given the power to try impeachment cases;
and the number of votes required for a finding of guilt.29

(1) Who are subject to impeachment Art. XI, Sec. 2

29 Emilio A. Gonzales III v. Office of the President, etc., et al./Wendell Bareras-Sulit v. Atty. Paquito N. Ochoa, Jr., et al., G.R.
No. 196231/G.R. No. 196232, January 28, 2014.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 42 of 68

Art. XI, Sec. 2. The President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional Commissions, and
the Ombudsman may be removed from office, on impeachment for, and
conviction of, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal or public trust. All
other public officers and employees may be removed from office as
provided by law, but not by impeachment.

• The following government officials are subject to impeachment (Impeachable


Officers);
a. President
b. Vice-President
c. Justices of the Supreme Court
d. Members of the Constitutional Commissions
e. Ombudsman

• Section 1, PD 1606 – Creation of the SANDIGANBAYAN

The Presiding Justice and the Associate Justices of the Sandiganbayan shall not
be removed from office except on impeachment upon the grounds and in the
manner provided for in Sections 2, 3 and 4 of Article XIII of the 1973
Constitution.

• Grounds for impeachment


a) Culpable violation of the Constitution
b) Treason (RPC)
c) Bribery (RA 3019)
d) Graft and corruption (RA 3019)
e) Other high crimes
f) Betrayal of public trust

• Limitation: No impeachment proceedings shall be initiated against the same official


more than once within a period of one year. [Art. XI, Sec. 3(5)]

• Forum: The House of Representatives shall have the exclusive power to initiate all
cases of impeachment. [Art. XI, Sec. 3(1)]

(3) Procedure for impeachment

Art. XI, Sec. 3. (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member


of the House of Representatives or by any citizen upon resolution of
endorsement by any Member thereof, which shall be included in the
Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral,
together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from
receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be
necessary either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution.
The vote of each Member shall be recorded.
Notes in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law. SY 2010-2011
Page 43 of 68

(4) In case the verified complaint or resolution of impeachment is filed


by at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same


official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on
oath or affirmation. When the President of the Philippines is on trial,
the Chief Justice of the Supreme Court shall preside, but shall not vote.
No person shall be convicted without the concurrence of two-thirds of
all the Members of the Senate.

A) Initiation stage

1) If initiated by less than 1/3 [Secs. 3(2)-(4)]

(a) A verified complaint for impeachment is filed with the House of Representative by:
(i) a member of the House of Representatives, or (ii) any citizen upon a resolution
of endorsement by any member of the House.

(b) The complaint must be included in the Order of Business within 10 session days
upon receipt thereof. (the purpose is to prohibit any delay)

(c) Not later than 3 session days after, including the complaint in the Order of
Business, it must be referred (by the Speaker) to the proper committee (usually,
the Committee on Justice and Order).

(d) The Committee has 60 session days from receipt of the referral to conduct
hearings (to see if there is probable cause), to vote by an absolute majority, and
to submit report and its resolution to the House.

(e) The resolution shall be calendared for consideration and general discussion by the
House within 10 session days from receipt thereof.

(f) After the discussion, a vote is taken, with the vote of each member recorded. A
vote of at least 1/3 of all the members of the House is needed to "affirm a
favorable resolution with the Articles of Impeachment of the Committee, or to
override its contrary resolution."

• If the Committee made a favorable recommendation (i.e., it recommended


that the complaint be sent over to the Senate), 1/3 of all the members are
needed to approve such recommendation.

• If the Committee made a contrary recommendation (i.e., it recommended


the dismissal of the complaint), 1/3 of all the members are needed to
disapprove or override this report.

• In other words, so long as 1/3 of the lower house votes to proceed with the
trial, then the case would be sent to the Senate, regardless of the
comm