CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
July 17, 2018 – Yasmine Ibay
STRUCTURE AND POWERS OF GOVERNMENT
I. IN GENERAL
A. Political Law Defined
MACARIOLA vs. ASUNCION
114 SCRA 77 (1982)
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 define the relations of the state with the
inhabitants of its territory (People vs. Perfecto [1922]). It may be
recalled that political law embraces constitutional law, law of public
corporations, administrative law including the law on public officers
and elections.
B. Constitutional Law Defined
1. That branch of the public law of a state which treats of the
organization and frame of government, the organs and
powers of sovereignty, the distribution of political and
governmental authorities and functions, the fundamental
principles which are to regulate the relations of
government and subject, and which prescribes generally
the plan and method according to which the public affairs
of the state are to be administered (Black’s Law
Dictionary).
2. That department of the science of law which treats of
constitutions, their establishment, construction, and
interpretation, and of the validity of legal enactments as
tested by the criterion of conformity to the fundamental law
(Black’s Law Dictionary).
C. Constitution Defined
The Constitution is not a document that provides in express terms
the listing of what government powers are. The powers of the
government are inherent. If there are specific provisions in the
Constitution respecting a particular type or kind of power, it is a
limitation rather than a grant.
*Additional Note:
It 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 is the
fundamental and paramount law of the nation. It prescribes the
permanent 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.
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 (Manila Prince Hotel vs. GSIS).
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. Since the Constitution
is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract (Manila Prince Hotel
vs. GSIS).
 Parts of a Constitution
1. Constitution of government
Article VI (Legislative), Article VII (Executive), Article
VIII (Judicial), Article IX (Constitutional Commissions)
2. Constitution of liberties
Article 3 (Bill of Rights)
3. Constitution of sovereignty
Articles on Amendment and Revision
 Characteristics of the 1987 Constitution
1. It is written.
2. It is enacted and not evolved.
- In common law countries where constitutional principles
evolved through their political history. In the Philippines,
it is made effective at a definite point in time.
3. It is rigid.
- It can only be amended or revised based on the strict
terms of the provisions of the Constitution on
amendment or revision.
II. BACKGROUND OF THE PRESENT CONSTITUTION
A. The February 1986 Revolution and the Proclamation of the
Provisional Constitution
B. Adoption and Effectivity of the Present Constitution
The 1987 Constitution was made effective on plebiscite day. This
was based on Proclamation No. 3 which was the Provisional
Constitution. Proclamation No. 1 of Corazon Aquino was the
establishment of the Revolutionary Government. Proclamation No. 3
was the so-called Freedom Constitution where most of the
provisions in the 1973 Constitution were repealed. One of the
provisions in the Freedom Constitution required the passage of a
new drafting and eventual passage of the new constitution. It says
“which shall become effective on the day of the plebiscite.”
Previous constitutions starting with 1935 Constitution will tell us that
it had become effective upon the issuance of the Presidential
Proclamation declaring the votes cast in the plebiscite which were
more for “yes” than for “no”. In the political exercise of a plebiscite,
there has to be some delay brought about by the counting,
canvassing, and final results tabulation and so the proclamation will
be on some other future date.
The same was true with the 1973 Constitution as well as the 1976
and 1981 amendments thereto. But in the 1987 because the
Freedom Constitution says it would be effective on plebiscite day,
then it would be effective on that day. It is February 2, 1987. So
there was a change in the rationalization of the SC from plebiscite
day. This time Justice Teehankee said that the counting and the
canvassing of the votes cast during plebiscite is a mere
mathematical computation of the wish of the sovereign. It was made
effective on the plebiscite day when votes were cast for its
affirmation.
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 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
 Compared with Effectivity of Statutes
RULE: There shall be publication. But in the Constitution there is no
need of such publication.
III. JUDICIAL ELABORATION OF THE CONSTITUTION
A. Construction
RULE 1: The provisions in the Constitution are deemed to be
SELF-EXECUTING.
MANILA PRINCE HOTEL vs. GSIS
267 SCRA 408 (1997)
Section 10, Article 12 of the Constitution was allegedly violated in
the sale of the sale of GSIS shares to non-filipinos. The private
respondents argue that the Constitution is not applicable.
RULING: Hence, unless it is expressly provided that a legislative act
is necessary to enforce a constitutional mandate, the presumption
now is that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead
of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law.
ATTY. MONTEJO: The reason was because the Constitution is a
direct source of rights. There is no need for a congressional act,
legislative act, or enabling law to make the rights under the
constitution claimable.
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 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.
 Other examples of non self-executing provisions
 Initiative and Referendum
Article VI, Section 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
therefor signed by at least ten 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
thereof.
The Congress shall enact a law for the people to exercise the right
of initiative and referendum. That is an express provision requiring a
legislative enactment therefore it is not self-executing.
GENERAL RULE: The presumption is that there is no need for an
enabling law for rights in the constitution to be claimable. (From
2017 TSN)
EXCEPTION: The only exception is when, by intent or by express
requirement of the provision, an enabling law must have to be
passed by congress.
RULE 2: VERBA LEGIS RULE (Plain Language Rule)
GENERAL RULE: The intent of the framers is its plain language or
normal meaning. The Constitution is not a document reserved for
lawyers, law students, or those knowledgeable in law. It is for
everybody to understand.
EXCEPTION: The intent is to use the technical meaning.
 Residence - Residence as qualification for public office
under the 1987 Constitution means that you have to be a
domiciliary of that place.
DOMINO vs. COMELEC
310 SCRA 546 (1999)
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.
DAVID v. SET
803 SCRA 435 (2016)
The Constitution should, therefore, be appreciated and read as a
singular, whole unit ut magis valeat quam pereat. Each provision
must be understood and effected in a way that gives life to all that
the Constitution contains, from its foundational principles to its finest
fixings. The intent of the framers must be taken into consideration.
It is a well-established rule in constitutional construction that no one
provision of the Constitution is to be separated from all the others, to
be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument.
Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat another, if
by any reasonable construction, the two can be made to stand
together.
Atty. Montejo on the Sereno Quo Warranto Case: In one of the
reasons for granting the QW, the SC has applied the statutory
construction rule of the mandatory word “shall” and the permissive
word “may”. Yes, the constitutional provision on impeachment uses
the word “may”, but the thing is that what is the intent of the entire
Constitution with respect to these impeachable officers? Yes, the SC
cited it says “may” because the President and Vice-President can be
removed through an election contest or QW before the PET.
But is there any other provision referring to the OTHER impeachable
officers who could be removed other than a QW petition? Yes, that’s
the rule on statutory construction but is that applicable also when
you view the Constitution? Just like in ordinary statutes, words and
phrases are normally in their technical meaning. That is why most
statutes have the definition of terms. They are not to be understood
in their ordinary plain language because they are technically defined.
But the Constitution is supposed to be understood in their ordinary
meaning. But since the SC said that that is the reason then so will
we. 
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 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
*Other Rules in DAVID vs. SET (2016)
In relation with intent, it is deemed written in the Constitution. While
the decisions of the SC are not forever, they can be changed as of
the moment under the DOCTRINE OF RELATIVE
CONSTITUTIONALITY.
Also, international agreements or those duly accepted principles in
international law should be deemed forming part of interpretations of
the Constitution and so will be on the Local Statutes on the matter.
David, written by Leonen, has stretched it that far because of the
issue of natural-born.
How should we view natural-born citizenship? And because of the
earlier ruling in Poe vs. Comelec, Justice Perez wrote that the intent,
citing our local law on Rules on Adoption, you can only adopt a
Filipino Citizen. If Grace Poe was adopted, then the presumption is
that she is a Filipino. Also based on international law/declarations
regarding the rights of children, it would require the State to give
permanent residence/citizenship to foundlings or children born in
their respective States.
Construing the word “natural-born citizens” is found in Article 4 of the
Constitution. It also considers international treaties concerning
generally accepted principles in international law whether or not we
are signatories or not under the DOCTRINE OF INCORPORATION
or TRANSFORMATION. They will form part of our judicial system
and therefore they should be consulted or read into when
interpreting Constitutional Provisions.
 Reclusion Perpetua - In the Bill of Rights, the threshold
when right to bail is a matter of right or discretion is the
penalty of reclusion perpetua. The word reclusion
perpetua is not in its technical meaning. It is supposed to
be understood in its loose meaning, to include life
imprisonment. If the person is charged with a crime
punishable by life imprisonment or higher, then bail
becomes a matter of discretion. 
 (4)
RULE 3: It shall be construed PROSPECTIVELY.
GENERAL RULE: The Constitution is not a penal statute. It has is
no retroactive application.
 Miranda Rule
The Miranda Rule first came into our judicial system under the 1973
Constitution. The case of Miranda vs Arizona, a late 1960s decision
that have been incorporated on the 1935(?). any extra-judicial
confession which do not comply with the Miranda Warnings and
Miranda Rule taken before the efficacy of the said rule provided, that
they were coerced, compelled, or tortured are admissible despite
non-compliance with the Miranda Rule. It does not apply
retroactively.
EXCEPTION: Retroactive Application
 Natural-born Citizenship
In the 1973 Constitution, the definition of natural-born is:
Section 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of
the adoption of this Constitution.
(2) Those whose fathers and mothers are citizens of the
Philippines.
(3) Those who elect Philippine citizenship pursuant to
the provisions of the Constitution of nineteen
hundred and thirty-five.
(4) Those who are naturalized in accordance with law.
Section 4. A natural-born citizen is one who is a citizen of the
Philippines from birth without having to perform any act to acquire
or perfect his Philippine citizenship.
This applies to those who were born of a Filipino mother and a
foreigner father, legitimately, under the 1935 Constitution.
There was seemingly a doubtful situation involving these children
(children which have elected Philippine citizenship upon reaching
the age of majority under the 1973 Constitution). The argument
being, when they elect, they were performing an act to perfect or
acquire citizenship. It was doubtful because there was no definition
of natural-born in the 1935 Constitution. In order to avoid any
confusion, the 1987 Constitution expanded the meaning of a
natural-born, to wit:
Section 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of
the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the
Philippines;
(3) Those born before January 17, 1973, of Filipino
mothers, who elect Philippine Citizenship upon
reaching the age of majority; and
Those who are naturalized in the accordance with law.
Section 2. Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire
or perfect their Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3), Section 1 hereof
shall be deemed natural-born citizens.
Those provisions are applied RETROACTIVELY for those children in
order to avoid the confusion of WON their act of electing citizenship
upon reaching the age of majority still makes them a natural-born.
RULE 4: Rule on Dynamism
The Constitution must be construed to be DYNAMIC. It must be
capable of being interpreted not only to meet what is being asked of
in the present but also the uncertainties and vagaries of the future.
This could be shown by the interpretation of the SC over the SAME
provision. The interpretation in one time may be different in some
other time.
It is said that one of the measures of a good constitution is that it is
capable of being interpreted not only to accommodate the demands
of the present but also those to be demandable in the future. (From
2017 TSN)
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 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
In relation to this is your understanding of the: THE DOCTRINE OF
RELATIVE CONSTITUTIONALITY. What does that mean?
When the Supreme Court interprets a law, statute, or an act in
relation to a constitutional provision to be not valid under the
constitution at present, it does not mean that the ruling will remain
forever. Conversely, if the Supreme Court says that it is valid in the
constitution as of the moment that does not mean that it will remain
to be valid forever.
As they say there is no forever. When the circumstances have been
altered or there are new developments say in human society or in
human behavior, that ruling may change depending on the demands
of that particular time.
If you remember the flag salute cases, what was the first thing that
you could remember in these cases where Jehovah‘s witnesses
were not required to salute the flag? The previous ruling was that it
does not violate their right under the freedom to exercise religion
clause. But when the same question was raised 16 years after, the
Supreme Court ruling changed, saying that it violates the free
exercise clause.
What has changed? Petitioners are the same. Religion is the same.
The claim is the same. The government is still the same. The
circumstances have altered. The evil sought to be avoided in the
earlier decision has not come to pass or it could not instill the sense
of patriotism to children simply by compelling them to salute the flag.
There could be other ways of instilling patriotism on children. The
fear that there would be a generation of children lacking in that
sense [of patriotism did not come to pass. And so the constitution
should be capable of being interpreted not only to meet the
questions of the present
 Nature of the Constitution
It is not a document containing in express or explicit terms the
powers of the government. It admits of residual powers. Powers of
the government are executive, judicial, or legislative.
The provisions relating to each of the powers refer to the limitation
rather than the grant.
ABAS KIDA vs. SENATE
The ARMM elections were not held. The President appointed OICs
for the elective positions affected instead
ISSUE: Whether the President can do that.
RULING: Yes. The President has the power to ensure that laws are
implemented. Part of implementation is to ensure that there is
continuity in the governance of the ARMM.
B. Theory of Judicial Review
 Separation of Powers
This is based on the concept of separation of powers. Before the
1987 Constitution, judicial review has always been a theory. The first
case on judicial review was Angara vs. Electoral Commission which
was decided under the 1935 Constitution.
ANGARA vs. ELECTORAL COMMISSION
63 PHIL 139 (1936)
ISSUE: Who has the power to fix the date for filing of election
protest? Is it the Congress or the Electoral Commission?
In this case, the Supreme Court discussed what separation of
powers is and its role to ensure that such separation is maintained.
From Full Text: 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 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. xxx
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.
If there is a violation of the separation of powers, or encroachment,
there must have be an arbiter to interpret whether there is such a
violation. That is a task of the Supreme Court.
The emphasis is on the duty and not on the power because it is the
duty of the Court to ensure that the separation is maintained. When
the court exercises judicial review, it is not imposing its will on the
other co-equal branches; rather it is performing its obligation to
make sure that the separation principle is maintained.
 Presumption of Constitutionality
In the 1987 Constitution, the Court has been given the power to
review acts of other co-equal branches or other officers.
Article VIII, Section 1 of the 1987 Constitution. The judicial power
shall be vested in one Supreme Court and in such lower courts as
may be established by law.
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 Section 1, Article VIII definition of judicial power has been
expanded to include JUDICIAL REVIEW.
First part: Refers to the standard definition of judicial power which is
the power of the court to settle actual controversies.
Second part: The judicial review power to determine whether there
is grave abuse of discretion amounting to lack or excess of
jurisdiction.
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 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Because of the PRINCIPLE OF CO-EQUALITY as well as the
PRESUMPTION OF CONSTITUTIONALITY, an act, law or statute
or imposition by the officers of the other branches of the government
is presumed to be not unconstitutional.
C. Conditions for the Exercise of Judicial Review
Courts only exercise judicial review when there is clear violation of
the principle of separation of powers and when these four conditions
are present:
1. There must be an appropriate case or actual
controversy.
The appropriate case is sometimes confused with appropriate
petition.
Appropriateness of the case means that the issue is ripe for
judicial determination. There must have to be a conflict of rights.
That conflict pertains to a power which is claimed not have been
properly exercised. It is not between two individuals but between the
power of the state or one of its officers or branch.
To raise a constitutional question, there has to a appropriate/proper
petition filed.
 In most cases it is the Rule 65 petition.
 Petition for prohibition or mandamus under Rule 65
 However, it can also be raised as a defense. For example,
in a criminal case, the question of constitutionality can be
raised as defense. It is not always in Rule 65 petition.
Again, the issue must be ripe for judicial determination because that
is the reason why a petition for Declaratory Relief will not be
normally entertained by the Supreme Court. Not only because it is or
would be anticipatory but also Supreme Court has no jurisdiction
over petition for Declaratory Relief.
2. It must be raised by the proper party/legal standing.
This is where most of the cases are avoided because the party
petitioner has no legal standing. Legal standing or locus standi is
equivalent to a real party in interest in civil cases. The difference
between a civil case from judicial review are the following:
CIVIL CASES JUDICIAL REVIEW
Legal standing or Real party in interest
locus standi
It involves private right. It involves a public right
The petitioner brings the suit not
only for himself solely but also
for anybody in the public which
maybe or is similarly situated.
However, the injury must be
personal, substantial and
material as to him because of
the prohibition on third-party
standing.
PROHIBITION ON THIRD-PARTY STANDING - A third-party
cannot bring a suit that would benefit another. It is not personal to
him.
There must have to be actual injury or impending and inevitable
injury if the constitutional question is not raised and not settled
because it is personal.
 Kinds of Legal Standing
1. Taxpayer’s suit – a taxpayer is given a legal standing
when the question involves the constitutionality of a public
spending. He is interested because the public spending is
for constitutional reasons.
2. Voter’s suit – a voter may be allowed to have legal
standing if the issue raised pertains to his discretions as a
voter and right to vote.
3. Legislator’s standing – a member of Congress who
approved a particular legislation may actually raise
question of constitutionality of a bill which had been
enacted into law if it affected his prerogatives as a
member of congress.
Example: A question on the passage of a bill as such as
when the bicameral conference committee version
included provisions which were not approved by both the
houses of the Congress.
 Liberal Rule on Legal Standing
Despite the fact that a party has no legal standing, the Supreme
Court in some cases applied the liberal rule on legal standing. The
SC has resolved the constitutional question under the DOCTRINE
OF TRANSCENDENTAL IMPORTANCE.
Under this doctrine the Supreme Court can resolve the case when it
involves public funds, clear violation of the constitution and there is
no party with legal standing. If the issue is of Transcendental
Importance, the SC will necessarily exercise judicial review.
3. It must be raised at the earliest opportunity.
The discussion here admits of other related matters:
 Lower courts can exercise judicial review
If you are made liable to a law in the first instance, you can raise as
a defense or as a cause of action at the first instance the issue of
constitutionality.
That is how you raise the issue at the earliest opportunity before it
becomes moot and academic. The parties can actually raise a
constitutional question at that level.
However, the Supreme Court warns that lower courts must refuse,
if they could, avoid to resolve the constitutional question. This
is in deference to fact that how can a lower court declare a law,
enacted by the Congress and signed into by the President, be
declared unconstitutional. But despite such, the SC said that it does
not mean that the lower court has no jurisdiction. The lower courts
have jurisdiction under Section 5, 2(a), Article VIII of the 1987
Constitution.
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 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
(2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is
in question.
xxx
Decisions of lower courts on constitutional matters are eventually
reviewable by the SC.
 Mootness
On the issue of mootness, the Supreme Court can still resolve a
moot issue under the following instances:
1. There is a grave violation of the constitution;
2. Exceptional character of the issue or paramount public
interest is involved;
3. Resolution is required to formulate controlling principles to
guide the bench and the bar; or
4. The case is capable of repetition yet evading review.
In such cases, the resolution is not for the benefit of the parties
anymore because of a supervening event thereby making the issue
moot. The Court may, under its TEACHING OR SYMBOLIC
FUNCTION, still exercise judicial review.
Judicial review is a standard bar question, it will involve your
understanding of what judicial review is, what the conditions are and
whether they are present or not and resolving the case accordingly.
If the facts of the case do not make a case already decided, it is
always on the prudent side to dismiss the decision by arguing that
one, some or all of the conditions are not present. But if the facts are
similar to a case already decided, then answer accordingly. When
there is no legal standing, do not apply Transcendental Importance.
If it is already moot, do not apply the teaching or symbolic function.
4. It must be the very lis mota of the case.
The issue must the VERY CAUSE of the case. In other cases, it is
characterized as there is no way that a case can be disposed of
without resolving the constitutional question. If the constitutional
question can be avoided, then such is not the very lis mota of the
case. But if it is the very cause for the court to resolve the case, then
it becomes the very lis mota of the case.
Thus, the following are the conditions for the exercise of judicial
review:
1. There must be an appropriate case or actual controversy;
2. It must be raised by the proper party/legal standing;
3. It must be raised at the earliest opportunity; and
4. It must be the very lis mota of the case.
D. Functions of Judicial Review: Checking, Legitimating and
Symbolic
* Editor’s Note: The discussions below are lifted from the 2017 TSN.
1. Checking
The act in question is nullified for being inconsistent with the
Constitution.
2. Legitimating
Legitimating is exercised when there is no other way for the
court to dispose of the petition but to resolve the unconditional
question or issue. In the end, the SC will declare the act or law
complained of as not violative of the Constitution. The Court will
do this and it will bring, at least for the moment, a rule that it is
not violative of the Constitution.
3. Symbolic
This is used when the issue is moot or academic or there is no
need to resolve the issue because either one, some or all of the
conditions are not present but still the court opt to resolve the
issue, so that there will be some rule promulgated to guide the
bench, the bar and the public. To do so would be to avoid the
repetition of petitions filed in the future involving similar
constitutional questions.
E. All Courts Can Exercise Judicial Review
July 18, 2018 – June Ceballos
F. Effects of Declaration of Unconstitutionality
Article 7, New Civil Code. Laws are repealed only by subsequent
ones, and their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws or the Constitution.
(5a)
 Operative Fact Doctrine
Under Article 7 of the New Civil Code, second paragraph states the
traditional view when the law is declared unconstitutional.
The constitution shall govern when the law shall be void. The effect
of the declaration of unconstitutionality, therefore, makes—any law
for that matter—the law is deemed not to have been enacted at all,
never been a part of our legal system. Therefore, it will not be the
basis of any right, obligation, office or liabilities.
However, because of the so-called existence of that law, that the
public may have acted accordingly—whether there is a prohibition to
do an act, or a command to perform an act—the public generally
relying on the law before it was considered unconstitutional, that
period of time that the law is deemed in effect or was effective is
considered as an operative fact.
And therefore, the principle is that, as an exception to that second
paragraph rule of Article 7, the law or the effects of the law prior to
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From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
the declaration of unconstitutionality will have to be given such
effect.
That operative fact doctrine is not based on positive rule of law; that
is a rule of equity. Then again, the problem is when do we apply
that?
If there is, again, a prior case where the operative fact doctrine has
been applied, and so we apply it as an exception. Otherwise, we
apply the traditional effect that the law would not be a basis of
anything, simply because it is deemed not to have been enacted, not
to have been part of our legal system.
Perhaps the most recent of these laws, which have been declared
unconstitutional, would be your PDAF and your DAP cases.
What should happen, to those moneys or funds, which were actually
spent, in relation to the PDAF provision and to the DAP or the
Disbursement Acceleration Program of the Executive? Should they
be returned if it were to be subjected to COA audit, should it be
disallowed, or should notice of disallowance be issued and the
responsible officers who received them and spent them would have
to return?
The answer is, it has been given operative fact application, for so
long as they were spent validly. Of course, we all know that DAP,
there was a finding of an illegal or unconstitutional transfer of funds,
but that was the extent of why it was declared to be unconstitutional.
And since there was nothing more found as to its actual spending,
that it was not misused, then it may no longer be commanded to be
returned.
As opposed to the so-called PDAF, there are two types of
expenditures there. Some were already spent in accordance with the
value, subject in a value project, but some were so-called—
obviously they were non-existing—beneficiaries. So as to that, the
operative fact doctrine, if applied, will not validate what is supposed
to be an invalid act.
If the law declares or if the law commands something to be done or
not to be performed, and an act was done contrary to the terms of
that law, the fact that the law was defective, any illegal act done or
not performed under that law will never be invalidated or validated
simply because the law was declared unconstitutional. The operative
fact doctrine does not operate to validate what, by essence, is an
invalid act.
G. Political Questions vs. Justiciable Questions
Final item in your outline respecting judicial review is the concept of
political question and justiciable question.
That has been raised as a matter respecting the expanded definition
of judicial power, which now includes judicial review. Whereas
before, we said it was just a theory, now it is provided in the
constitution in express terms.
So, the question has been, is the political question doctrine concept
obliterated by the expanded definition of judicial review in the
present constitution?
The cases would say that while the political question concept
remains, it is largely diminished. Whereas before, when it was not in
the constitution in express terms, the political branches of
government can easily refuse judicial inquiry by the simple claim that
the matter was beyond the court’s jurisdiction—meaning it is a
political question, which full discretionary authority has been
delegated to them by the sovereign authority to decide.
But even then, even the diminished character of the political
question doctrine, there are still instances or acts of the political
branches which remain today as political questions and can never
be the subject of judicial inquiry.
 Political Questions in the Executive Branch
For the Executive, any matter pertaining to foreign relations can
never be the subject of any judicial inquiry. The President, being the
head of state, the representative of the state, and any matter relating
to foreign relations, respecting the policy of foreign relations, the
wisdom of it will never be a subject of a judicial review.
That is why even if your president has been cursing the United
States, the European Union, all the other what we know as
democratic states, and is leaning towards China, Russia, he can
never be questioned before the courts because that is foreign policy.
Gusto man niya’g mga communist country, we cannot do anything
about it. That is part of his policy; it is based on his wisdom.
 Political Questions in the Legislative Branch
With respect to the Congress or legislative branch, while Article 6
and other provisions in the Constitution limiting Article 3, limits
congressional authority. (Sorry di jud masabtan)
But as to what Congress would legislate on, provided not limited by
the constitution, and when it would legislate, is a question of policy.
You cannot, therefore, compel Congress to enact a law on a
particular subject matter if it does not want to.
The only limitations again are those provided in the Constitution.
Congress cannot enact something which the Constitution prohibits.
But if it is not prohibited, you cannot also file a petition for
mandamus compelling Congress to enact a law to protect men from
violence against their women or from their women. Cannot because
that is based on policy consideration, the wisdom is with Congress,
to ever enact a law if they see fit, that is still a political question.
Though diminished again, is not totally lost.
IV. THE PHILIPPINES AS A STATE
A. State Defined
B. Territory
Perhaps what comes to mind is the PCA Case No. 1 at 2013-19
decided on July 12, 2016. This is the case of the Republic of the
Philippines vs. People’s Republic of China. This was
promulgated and issued by the Permanent Court of Arbitration, and I
don’t know why it’s called an arbitral ruling but that’s how it is
referred to.
There were 15 submissions by the Philippines because the plaintiff
here—the term was complainant—was the Philippines, and the
claim was largely made because of the claim over the Spratly group
of islands. Of the 15 submissions, there were rulings on 7, definitive
rulings. The court withheld the main view(?) ruling on the 8 more.
It would seem that we won over China and that the claim is, or the
claimed territory is part of the Philippine territory. That is not
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accurate. What the ruling practically said was that the claim of China
had no legal basis. So China is claiming, this is ours because it is
traceable to our maps from the Ming Dynasty.
But the ruling practically said that the UNCLOS or the United
Nations Convention on the Law on the Seas supersedes any claim
based on historic right or legal item because that is the effective and
applicable convention or treaty respecting the law on the seas.
So China cannot claim it, does it follow that it is now part of
Philippine territory? It does not follow.
Because if you remember your concept of Philippine territory under
Article 1, since we follow the ARCHIPELAGIC DOCTRINE, any
continental shelf is supposed to be part of our territory and from the
so-called baselines of the terrestrial domains, there is, base-points
where you connect straight line (because we follow straight baseline
method) that is where the so-called 12 nautical miles for territorial
sea and the 200-mile Exclusive Economic Zone is to be measured.
Of these islands, the question is, if this is for example one island
being claimed, can this be the basis of that Exclusive Economic
Zone measurement?
And a lot of the submissions and the rulings were most of these
islands are rock formation. And you can only establish—based on
article in the Convention—of a continental shelf to be included in the
territory, as well as Exclusive Economic Zone, if the rock formation is
capable of human habitation and economic life. If the rock formation
is not capable of both, it is never considered part of, but can
generate an Exclusive Economic Zone or a continental shelf.
So in short, mga bato ra na sila, mura rag mga bato sa dagat. So
you cannot make any measurement there. So that’s basically why
there are only two islands there, the Mischief Reef and the second,
Thomas Shoal which were considered found to be within the 200-
mile Exclusive Economic Zone of the Philippines based on the
measurement of the Convention, because there is no overlapping of
the Exclusive Economic Zone.
This brings us to that point: the 12 nautical miles, no problem, it will
be territorial sea. But up to the 200-mile limit, it’s Exclusive
Economic Zone, where, what is technically reserved to the state to
which it belongs, is exclusive economic exploitation or exploration.
And therefore, outside the first 12 nautical miles, any other activity
outside of economic exploration or exploitation is allowable.
So for example it is outside of that or within the Exclusive Economic
Zone of the Philippines, and China built a military structure, is that
an activity involving economic exploration or exploitation? Gira-gira
man na, so that’s actually an issue. And if there is an overlapping of
the 200-miles Exclusive Economic Zone, there has to be some
settlement to be made.
The only reason why that those two islands were considered within
is because there is no issue or dispute as to encroachment. As to
the rest, there are still issues. That’s why it’s not accurate to say, “Ah
ato to sila.” So that’s your Philippines vs. China, PCA Case No.
2013-19 of July 12, 2016.
Now the case of SAGUISAG vs. OCHOA (2016) speaks of the
relationship of the US and the Philippines, respecting the territories
where they shall operate under the Visiting Forces Agreement as
implemented further by EDCA.
The clarification under the Mutual Defense Treaty, the
understanding before, because the peace and order situation within
the military bases would be under the proposed martial of the US
government, the belief was that and it was established or known
policy that the “sovereignty” over that territory belongs to the US.
I don’t know if you still remember one of the old cases in “Immunity
from Suit” claimable by a foreign state, the case of U.S. vs. Guinto,
that is the decision involving six cases. One of the cases there
involve a civil suit for damages filed against the military personnel of
Clark Air Field because Filipinos who went over the perimeter fence
were bitten by US military dogs and the claim was that they were—
actually the dogs were commanded to bite them. So they claim civil
claim for damages.
So it was discussed whether the foreign US military personnel could
claim immunity from suit, being a public officer of a foreign
sovereign, who is performing an official duty and function. Without
any malice or bad faith, our Supreme Court sustained that, and part
of the discussion was that they have control over the territory. That
was under the Mutual Defense Treaty.
We all know that the Visiting Forces Agreement is a different kind of
an agreement. They are not here on a permanent basis because
they can no longer maintain military bases here. They are only here
visiting, 365 days a year, or the entire duration of the efficacy of the
VFA. Bisita lang man, they are not permanent residents here,
visitors lang, kaya lang, whole year round. 
So in that case of SAGUISAG, it was raised or discussed who
supervises, oversees, or has authority over these bases where the
visiting forces are stationed during their visit. The Supreme Court
clarified that it now belongs to the Philippine government because
under EDCA, sovereignty over these places where they are found
should remain with the Philippines, no longer with the US
government.
Unlike the arrangement before under the Mutual Defense Treaty,
because of the more or less permanent character of their stay in
their bases, they control as far as sovereignty in that territory they
are occupying. But no longer now because what is allowed under
the EDCA is only access and use of US visiting forces in the area
that they are visiting.
C. People
1. Different Meaning of the Word “People” under the
Constitution
2. Citizenship
a. Who are Citizens
When we say “people,” we talk about citizenship. It’s usual bar exam
question again, with respect or in relation to qualification to public
office because of the requirement of natural-born citizen.
Case of TECSON vs. COMELEC (2004) and the case of DAVID vs.
SET (2016) is a good read on the historical perspective on Philippine
citizenship. Even if they are lengthy decisions, at least you can have
a historical perspective on who Philippine citizens are.
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 Filipino Citizens under the 1935 Constitution
Section 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippine Islands at the time of
the adoption of this Constitution.
(2) Those born in the Philippine Islands of foreign parents who,
before the adoption of this Constitution, had been elected to
public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon
reaching the age of majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.
That is how the provision reads, but a complete understanding of the
provision should have read, “Those whose mothers are Filipino
citizens and fathers are foreign nationals, legally married, or
legitimate children of Filipino mothers and foreigner fathers born
before January 17, 1973.”
That’s supposed to be the complete provision for a complete
understanding. That is to be so because you all know that if the
union of the Filipino mother and a foreigner father is not valid, the
child is a citizen from birth, because the child follows the citizenship
of the Filipino mother. The reason being of course because the child
will be under the custody, parental care, and support of the mother.
Then here comes Fernando Poe Jr.’s case: the father is Filipino, not
married to a foreigner mother. The citizenship follows who? The
Filipino father or the foreigner mother?

The Supreme Court said the Filipino father because the ’35
Under item 1 of the section on citizenship of the 1935 Constitution,
Constitution says, “Those whose fathers are citizens of the
“Those who are citizens at the time of the adoption of 1935
Philippines.” So even if the child is not in the custody, support of the
constitution are considered as citizens of the Philippines.” The
father, he will still follow the citizenship of the father. The reasoning
problem is that who are those individuals?
would be to give the child the chance to be a Filipino citizen because
citizenship is a privilege. Short of saying, to be a Filipino citizen is a
We go back and there is no definition of who is a Filipino citizen until
privilege.
the Philippine Bill of 1902. Previous to that, there was none. We
were all indios and chonggos to the Spanish government. We
That’s why the child, if born illegitimate, should follow the Filipino
have not been called Filipinos.
parent, regardless of whether the child is under the care, custody,
and support of the Filipino parent.
After the Treaty of Paris where the Philippine Archipelago was sold
by Spain to the US, still there was no Filipino citizen by definition of
b. Election of Philippine Citizenship
law.

Last item there would be “Naturalized in accordance with the law.”

It was only again when the Philippine Bill of 1902 that “Filipino
citizen” as a term has been defined. Largely, it was referring to any
That being said, there are only two types of citizenship in the
person, an inhabitant or not, who were covered by that Treaty of
Philippines, either you are natural born or you are naturalized.
Paris sale and there’s a cut-off date, April 1898, who are here, and
who remained here thereafter, are considered citizens of the
The definition of who are natural born first came under the ‘73
Philippines.
constitution. There was no definition of who are natural born in the
’35.
That’s the reason why for a very short period of time, up to April
1899, those who were born in the Philippines, or what we know at
So for that particular class of children, born legitimately of a Filipino
the Philippines, regardless of citizenship of the parents, and who
mother and a foreigner father under the 1935 Constitution, they must
remain here, were considered citizens of the Philippines using jus
have to elect Philippine citizenship upon reaching the age of
soli. Citizenship by birth is either acquired under the jus soli
majority.
principle (place of birth) or jus sanguinis (by reason of blood
relations).
During minority age, they are considered foreign nationals, with an
inchoate right to become a Filipino citizen if they do elect upon
So for that limited period of time, regardless of the citizenship of the
reaching the age of majority to become a Filipino citizen because
parents, if you are born here up to April 1899, and you remain here,
again they are many privileges if you are a Filipino citizen. And so
you can claim to be a Filipino citizen and those were the rulings of
the election is under Commonwealth Act 625, it is supposed to be a
the Supreme Court for those persons born under that same
FORMAL ACT.
category. After that, we follow the jus sanguinis as a rule of
acquisition of citizenship by birth.
You have come across a lot of cases, because I presumed you read
them all, suggesting that there could be an INFORMAL MODE of
Item number 2 in citizenship in the 1935 Constitution refers to
electing Philippine citizenship. What is this informal mode?
“Those who were born of foreign parents but at the time of the
adoption of the Constitution of ‘35 were already elected to public
The informal mode refers to the performance of acts expressly
office.” They are considered citizens of the Philippines. Not
showing that the individual has chosen or elected to become a
appointed, but elected.
Filipino citizen, like:
Number 3, “Those whose fathers are citizens of the Philippines.”
- Studying in Philippine schools (honor pa jud, hawod
kaayo’s Constitution);
Number 4, “Those whose mothers are and who elect Philippine
citizenship upon reaching the age of majority.”

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- In some cases, has taken up a profession, because
exercise of profession in the Philippines is reserved to
Filipino citizens only;
- In some cases, the act of exercising the right to suffrage. If
you were indeed a Filipino and you want to be a Filipino,
you have been participating in the elections.
So these are acts showing that the individual has effectively chosen
to become a Filipino citizen. But those are obiter; they are not the
ruling in the case. Because the ruling remains that the law requires a
formal act of election.
Under the law, the FORMAL ACT requires the execution of a
sworn election, meaning it is an affidavit. You state the
circumstances: born of a Filipino mother married to a foreigner
father, on this date that you have attained this age of majority that
you elect Filipino citizenship, sign it and have it notarized. That is
your sworn election.
You are also required to execute so-called oath of allegiance,
stating that you, swear that you owe allegiance to the Philippines,
the Constitution, the duly constituted authorities, etc.
These two documents must have to be registered in the nearest
local civil registry. That will constitute the formal election and that
must have to be done within reasonable time or period after attaining
the age of majority.
IN RE: CHING
316 SCRA 1 (1999)
The one who took the bar exam, having failed to prove that he was a
Filipino citizen, having failed to show proof of election, the Supreme
Court made mention an old DOJ Circular saying that the election
must have to be done within the period of 3-years.
Supreme Court took note of that and said that, that is a reasonable
time but that is not the hard-and-fast rule. It could be more than 3-
years, for so long as the delay is justified or could be justified why it
took some time, more than the 3-year allowable period per DOJ,
why the election was a little bit delayed. What is important is that
there was an election.
MA vs. FERNANDEZ
625 SCRA 566 (2010)
The two documents which were executed immediately within
reasonable time upon reaching the age of majority were not
registered. There was failure to register them with the nearest local
civil registry.
The Supreme Court said that the failure to register is not a fatal
defect. What is constitutive of election is the execution of the
required documents. The registration requirement is simply for
recording purposes of the election made within reasonable time from
the attainment of the age of majority.
So for long as it can be shown that there really was, like in the case
of Ma, the documents were considered ancient documents. The
failure to register was not considered.
 1935 Constitution in Relation to CA No. 63
Now the other matter with respect to the election would be the effect
of the 1935 Constitution in relation to Commonwealth Act No. 63
when a Filipino woman marries a foreigner man.
Under the law then, in the Constitution applicable in 1935, a Filipino
woman may lose her Philippine citizenship if she marries a foreign
national. Meaning, by operation of law, if she is deemed to take the
citizenship of the foreign husband, then she is, under the Philippine
law, deemed to have lost her Philippine citizenship.
So the question has been, if a child is born out of that marriage, can
the child still elect Philippine citizenship upon reaching the age of
majority?
If the Filipino mother/wife has lost her citizenship by operation
of law only, the child of that marriage can still elect Philippine
citizenship because there is still a Filipino mother to talk about. She
may be a foreign national per the laws of the country of the foreigner
husband but under the Philippine law, she is still deemed to be a
Filipino. That’s why the child is still born to a Filipino mother and a
foreigner father.
But if the Filipino mother/wife has applied for naturalization in
the foreign country, we must have to determine when the child
was at least conceived. If the child was conceived when the
naturalization was not yet granted, there is still a Filipino mother,
even if naturalization proceedings have been commenced. The child
can still elect Philippine citizenship. But if the child was conceived
when the Filipino mother was already granted naturalized status in
that foreign country, there is no more Filipino mother to talk about.
The child cannot elect Philippine citizenship upon reaching the age
of majority.
However, that child can still become a natural born Filipino if we take
or factor in RA 9225. Just hold on to that thought; we will reach there
when we get to Reacquisition.
c. Natural-born Citizens
Natural born citizens have been defined or the term has been
defined for the first time under the 1973 Constitution. They refer to
those who are citizens from birth without performing an act to perfect
or acquire citizenship.
Prior to the 1987 Constitution, there would have been some doubt
whether a child born under that category of mixed marriage who
elected to become Philippine citizens at the time of attaining majority
age would be considered natural born under that definition.
Those who were born under the ‘35 Constitution and who elect at
the ‘35 would have no problem because they were not yet
categorized as natural born by the Constitution.
However in ‘73, there was a phrase there, “must not have performed
an act to perfect or acquire.” So if a child was born under the‘35
under those same circumstances but elected under the ‘73, the
question is, is that child natural born simply because he had to
perform an act, which was the election, to perfect his citizenship?
The 1987 definition of natural born corrected that doubtful situation
by making it clear that children born under the circumstance in ‘35
Constitution who elect Philippine citizenship would also be
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considered as natural born. That, we said, is applied retroactively, so
there is no question.
The phrase, therefore, “since birth” in the definition of natural born
refers to the fact of being a citizen. It does not refer to the fact that
the person has performed an act to perfect or acquire citizenship. So
if a person is a citizen from birth, regardless of whether he
performed an act later, like an election of Philippine citizenship, the
child would still be considered natural born for purposes of our
Constitution.
July 19, 2018 – Emmy Buniel
d. Naturalized Citizens
Among those listed in the 1987 Constitution as citizens are those
who are Filipinos by naturalization, which refers to the legal act of
adopting an alien and clothing him with the privilege of a citizen.
 Naturalization Proceedings
Under the present laws, the process of naturalization can be:
1. Judicial; or
2. Administrative
 Judicial Naturalization
Judicially, C.A. No. 473 or The Revised Naturalization Law provides
that after hearing the petition for citizenship and receipt of evidence
showing that the petitioner has all the qualifications and none of the
disqualifications required by law, the competent court may order the
issuance of the proper naturalization certificate and the registration
thereof in the proper civil registry.
The substantial requirements (ARCPEN) under judicial naturalization
include:
1. Age
2. Residency
3. Character
4. Property
5. Education and
6. Not otherwise disqualified by law
For property requirement, the case of REPUBLIC vs. KARBASI
(2015) is instructive.
REPUBLIC vs. KARBASI
764 SCRA 352 (2015)
Jurisprudence dictates that in judicial naturalization, the application
must show substantial and formal compliance with the law. In other
words, an applicant must comply with the jurisdictional requirements;
establish his or her possession of the qualifications and none of the
disqualifications enumerated under the law; and present at least two
(2) character witnesses to support his allegations. Section 2 of the
Naturalization Law clearly sets forth the qualifications that must be
possessed by any applicant, viz:
Section 2. Qualifications. - Subject to section four of this Act, any
person having the following qualifications may become a citizen of
the Philippines by naturalization:
First. He must be not less than twenty-one years of age on the day
of the hearing of the petition;
Second. He must have resided in the Philippines for a continuous
period of not less than ten years;
Third. He must be of good moral character and believes in the
principles underlying the Philippine Constitution, and must have
conducted himself in a proper and irreproachable manner during the
entire period of his residence in the Philippines in his relation with
the constituted government as well as with the community in which
he is living.
Fourth. He must own real estate in the Philippines worth not less
than five thousand pesos, Philippine currency, or must have some
known lucrative trade, profession, or lawful occupation;
Fifth. He must be able to speak and write English or Spanish and
any one of the principal Philippine languages;
Sixth. He must have enrolled his minor children of school age, in any
of the public schools or private schools recognized by the Office of
Private Education of the Philippines, where the Philippine history,
government and civics are taught or prescribed as part of the school
curriculum, during the entire period of the residence in the
Philippines required of him prior to the hearing of his petition for
naturalization as Philippine citizen. (CA 473)
FACTS: Karbasi, an Iranian and registered refugee, filed for
naturalization with the RTC. This was opposed by the OSG on the
ground that Karbasi has no lucrative income.
Based on a government data relied upon by the OSG, the Annual
Income and Expenditure in Western Mindanao shows that the
average income for the year 2000 was P86,135.00 and for 2003 was
P93,000.00. This shows that Karbasi's declared gross income
amounting to P21, 868 was way below the average income and
average expenses in Western Mindanao, the region where Dipolog
City, his residence, is located.
Karbasi argued that the analysis of the OSG with respect to the data
on Annual Income and Expenditure in Western Mindanao is
misplaced. Firstly, the data presented were merely statistical and not
actual, and did not reflect the circumstances relative to a specific
subject or person. Hence, these are greatly unreliable with respect
to a specific person in a naturalization case. At best, it was only
intended for the purpose it was made - for planning and for policy
making of the government and not to determine whether a certain
trade, occupation or income is lucrative or not.
ISSUE: Can the possession of an applicant's lucrative trade,
profession or lawful occupation, for purposes of naturalization, be
fairly determined through a simplistic read-through on government
data?
RULING: No. The Court finds it difficult to agree with the OSG's
meager use of government data to prove that Karbasi would become
a burden to the Philippine society in the future. Except for its own
citation of government data, nothing else was presented to establish
that Karbasi had indeed no lucrative income or trade to support
himself and his family.
To accept the OSG's logic is a dangerous precedent that would peg
the compliance to this requirement in the law to a comparison with
the results of research, the purpose of which is unclear. This is not
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to say that the data produced by government research are
inappropriate, or much less irrelevant in judicial proceedings. The
plain reliance on this research information, however, may not be
expected to produce the force of logic which the OSG wants to attain
in this case. Besides, had the law intended for government data on
livelihood and income research to be used as a gauge for the
"lucrative income" requirement, it must have stated the same and
foreclosed the Court's power to assess existing facts in any given
case.
Here, the Court opts to exercise this power and delve into a
judicious review of the findings of the RTC and the CA and, as
explained, to rule that Karbasi, possesses a lucrative income and a
lawful occupation, as required by the Naturalization Law.
The economic qualification for naturalization may be seen to
embody the objective of ensuring that the petitioner would not
become a public charge or an economic burden upon society. The
requirement relates, in other words, not simply to the time of
execution of the petition for naturalization but also to the probable
future of the applicant for naturalization.
DOCTRINE: The property requirement is not actually based on how
much you have or how much you earn. It is whether or not you will
be a burden to the State if and when you become a citizen.
In addition to the substantial requirements, Section 5 of CA 473
provides that one year prior to the filing of his petition for admission
to Philippine citizenship, the applicant for Philippine citizenship shall
file with the Bureau of Justice a declaration under oath that it is bona
fide his intention to become a citizen of the Philippines (Declaration
of Intention).
REPUBLIC VS LI CHING CHUNG
694 SCRA 249 (2013)
FACTS: The petition for naturalization was filed seven months after
the filing of the Declaration of Intention.
ISSUE: Whether or not the filing of the petition for naturalization
before the expiration of the one-year period is fatal.
RULING: Yes. The period of one year from the filing of Declaration
of Intention is the time fixed for the State to make inquiries as to the
qualifications of the applicant. If this period of time is not given to it,
the State will have no sufficient opportunity to investigate the
qualifications of the applicants and gather evidence thereon.
The period is designed to give the government ample time to screen
and examine the qualifications of an applicant and to measure the
latter‘s good intention and sincerity of purpose. Simply put, the
waiting period will unmask the true intentions of those who seek
Philippine citizenship for selfish reasons alone, such as, but not
limited to, those who are merely interested in protecting their wealth,
as distinguished from those who have truly come to love the
Philippines and its culture and who wish to become genuine partners
in nation building.
The law is explicit that the declaration of intention must be filed one
year prior to the filing of the petition for naturalization. Stated
otherwise, it is mandatory that the filing of the petition for
naturalization must be made after the expiration of the one-year
period reckoned from the time the Declaration of Intention is filed.
OTHER ISSUE: Is there an exception to the mandatory filing of a
Declaration of Intention?
RULING: Yes. Under Section 6 of CA 473, the following persons
may be naturalized without having to make a declaration of intention
upon complying with the other requirements of this Act:
1. Those born in the Philippines and have received their
primary and secondary education in public schools or those
recognized by the Government and not limited to any race or
nationality; and
2. Those who have resided continuously in the Philippines for a
period of thirty years or more before filing their application.
3. When the applicant involves a widowed wife as well as the
minor children (because the law requires that if the applicant
father/husband is married, the foreigner mother as well as the
foreigner minor children will just derive whatever is granted
eventually to the father).
If the applicant father died but has already filed a Declaration of
Intention before, the widowed wife as well as the children can
continue the application and they are exempted from filing another
Declaration of Intention.
After the filing of the petition, there is publication, notice and hearing,
presentation of evidence, and then the decision. When the decision
is favorable, there will be no automatic grant of Philippine
citizenship. There shall be a two-year waiting period, the purpose of
which is for the State to verify that the applicant continues to
possess the qualifications and none of the disqualifications.
After the two-year period, there will be a summary hearing to
determine whether the applicant should be granted a naturalized
status. This is followed by the cancellation of the applicant‘s Alien
Certificate of Registration and the issuance of the Certificate of
Naturalization.
The character requirement, which must be proved by at least two
credible witnesses, is at issue in the case of GO vs. REPUBLIC
(2014).
GO vs. REPUBLIC
729 SCRA 138 (2014)
Under CA 473, an applicant for naturalization must comply with the
jurisdictional requirements, establish his or her possession of the
qualifications and none of the disqualifications enumerated under
the law, and present at least two (2) character witnesses to support
his allegations.
In vouching for the good moral character of the applicant for
citizenship, a witness, for purposes of naturalization, must be a
―credible‖ person as he becomes an insurer of the character of the
candidate. What must be ―credible‖ is not the declaration made,
but the person making it. This implies that such person must have a
good standing in the community; that he is known to be honest and
upright; that he is reputed to be trustworthy and reliable; and that his
word may be taken on its face value, as a good warranty of the
worthiness of the petitioner.
In Lim Ching Tian v. Republic, the Court explained that the ―law
requires that a vouching witness should have actually known an
applicant for whom he testified for the requisite period prescribed
therein to give him the necessary competence to act as such.
The reason behind this requirement is that a vouching witness is in a
way an insurer of the character of petitioner because on his
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testimony the court is of necessity compelled to rely in deciding the
merits of his petition. It is, therefore, imperative that he be competent
and reliable. And he is only competent to testify on his conduct,
character and moral fitness if he has had the opportunity to observe
him personally, if not intimately, during the period he has allegedly
known him.
The law, in effect, requires that the character witnesses be not mere
ordinary acquaintances of the applicant, but possessed of such
intimate knowledge of the latter as to be competent to testify of their
personal knowledge; and that they have each one of the requisite
qualifications and none of the statutory disqualifications.
Under CA 473, an applicant is disqualified if he is a citizen or subject
of a foreign country other than the United States whose laws do not
grant Filipinos the right to become naturalized citizens or subjects
thereof. If there is no reciprocity, then the application will be denied.
REPUBLIC vs. KARBASI (2015)
FACTS: The OSG opposed Karbasi‘s application for naturalization
on the ground that there is no reciprocity. The laws of Iran do not
provide for naturalization of Filipino citizens wanting to become
Iranians.
ISSUE: Is the requirement of reciprocity applicable to a refugee
registered under the United Nations High Commissioner for
Refugees (UNHCR)?
RULING: No. The Court does not need to belabor the issue on
reciprocity between Iranian and Philippine laws on naturalization.
True, the Naturalization Law disqualifies citizens or subjects of a
foreign country whose laws do not grant Filipinos the right to
become naturalized citizens or subjects. A perusal of Karbasi's
petition, both with the RTC and the CA, together with his
supplemental pleadings filed with the Court, however, reveals that
he has successfully established his refugee status upon arrival in the
Philippines. In effect, the country's obligations under its various
international commitments come into operation.
Article 7 of the 1951 Convention relating to the Status of Refugees,
to which the Philippines is a signatory, expressly provides
exemptions from reciprocity, while Article 34 states the earnest
obligation of contracting parties to "as far as possible facilitate the
assimilation and naturalization of refugees."
REPUBLIC vs. BATUIGAS
706 SCRA 746 (2013)
ISSUE: Is there a proceeding under Philippine laws for the
declaration of citizenship? In other words, can you file a petition for
the court to declare that you are a Filipino Citizen?
RULING: No, you cannot. There is no proceeding authorized by the
law or by the Rules of Court for the judicial declaration of the
citizenship of an individual.
This case however is not a Petition for Judicial Declaration of
Philippine Citizenship but rather a Petition for Judicial Naturalization
under CA 473. In the first, the petitioner believes he is a Filipino
citizen and asks a court to declare or confirm his status as a
Philippine citizen. In the second, the petitioner acknowledges he is
an alien, and seeks judicial approval to acquire the privilege of
becoming a Philippine citizen based on requirements required under
CA 473.
GENERAL RULE: The Court cannot declare one‘s citizenship via a
voluntary Petition for the Declaration of Philippine Citizenship. There
is no such proceeding.
EXCEPTION: The only time the Court declares one‘s Philippine
citizenship is when there is:
1. A petition for judicial naturalization (because the court
determines whether or not the applicant is qualified to be a
naturalized Filipino)
2. An issue raised in relation to a qualification (this involves
public offices that require the official to be a natural-born
Filipino)
 Effect of Naturalization on the Wife
If the wife is a Filipino citizen, there is no effect. However, if the wife
is an alien, is legally married to the naturalized husband, and does
not suffer from any of the disqualifications in Sec. 4, she is entitled to
be declared a citizen as well. What is required is only an
administrative proceeding before the Bureau of Immigration for the
cancellation of her Alien Certificate of Registration on the ground
that her husband has been recently naturalized.
According to Moya Lim Yao vs. The Commissioner of Immigration
(41 SCRA 292) ruling, under Section 15 of Commonwealth Act 473,
an alien woman marrying a Filipino, native born or naturalized,
becomes ipso facto a Filipina provided she is not disqualified to be a
citizen of the Philippines under Section 4 of the same law. Likewise,
an alien woman married to an alien who is subsequently naturalized
here follows the Philippine citizenship of her husband the moment
he takes his oath as Filipino citizen, provided that she does not
suffer from any of the disqualifications under said Section 4. She
need not prove the qualifications, but only that she is not
disqualified.
Note that the rule on becoming ipso facto a Filipino upon the
naturalization of the spouse is only applicable when it involves an
alien wife and a naturalized Filipino husband. Here, the wife follows
the Philippine citizenship of her naturalized husband provided she is
not disqualified by law. What if it is the reverse?
When it involves an alien husband and a naturalized Filipina wife,
the husband does not become ipso facto a Filipino upon the
naturalization of his wife, even if he possesses none of the
disqualifications provided by law. Since there is no automatic grant
of Philippine citizenship, the alien husband still needs to file a
Petition for Judicial Naturalization but because of his marriage to a
Filipina, the 10-year residency requirement under CA 473 is reduced
to 5 years.
 Effect of Naturalization on the Children
Minor children of persons naturalized under this law who have been
born in the Philippines shall be considered citizens thereof.
A foreign born minor child, if dwelling in the Philippines at the time of
the naturalization of the parent, shall automatically become a
Philippine citizen and a foreign-born minor child, who is not in the
Philippines at the time the parent is naturalized, shall be deemed a
Philippine citizen only during his minority, unless he begins to reside
permanently in the Philippines when still a minor, in which case, he
will continue to be a Philippine citizen even after becoming of age.
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A child born outside of the Philippines after the naturalization of his
parents, shall be considered a Philippine citizen, unless within one
year after reaching the age of majority, he fails to register himself as
a Philippine citizen at the Philippine Consulate of the country where
he resides, and to take the necessary oath of allegiance.
To simplify the effect of naturalization on the children:
I. If the child is of age, no effect.
II. If the child is a minor:
A. If born in the Philippines - automatically becomes a citizen
upon the naturalization of the father.
B. If born abroad
1. Before the naturalization of the father.
a.) If residing in the Philippines at the time of
naturalization - automatically becomes a citizen.
b.) If not residing in the Philippines at the time of
naturalization - considered citizen only during his
minority, unless he takes permanent residence in the
Philippines before reaching majority age. In other
words, he continues to be a Filipino after reaching the
age of majority only if he decides to reside here
permanently before reaching that age.
The minor children who are not born here must
have to be here or at least declared intention to live
here at the time of the grant that they want to reside
here and become naturalized Filipino citizens as well.
They cannot be forced if they are not born here and
they are not here at the time of the grant be naturalized
citizens although the SC has said that Philippine
citizenship is a privilege, we are supposed to be in an
advantage.
2. After the naturalization of the father - considered citizen on
the condition that upon reaching the age of majority, he takes
an oath of allegiance in the Philippine consulate of the place
where he may be. If he fails to register his intent to continue
as Filipino within one (1) year upon reaching the age of
majority, he ceases to be a Filipino citizen.
 Denaturalization
This simply refers to the cancellation or the revocation of the
Certificate of Naturalization.
Section 18. Cancellation of naturalization certificate issued -
Upon motion made in the proper proceedings by the Solicitor
General or his representative, or by the proper provincial fiscal, the
competent judge may cancel the naturalization certificate issued and
its registration in the Civil Registry:
(a) If it is shown that said naturalization certificate was obtained
fraudulently or illegally;
(b) If the person naturalized shall, within the five years next
following the issuance of said naturalization certificate, return to his
native country or to some foreign country and establish his
permanent residence there: Provided, that the fact of the person
naturalized remaining for more than one year in his native country or
the country of his former nationality, or two years in any other foreign
country, shall be considered as prima facie evidence of his intention
of taking up permanent residence in the same;
(c) If the petition was made on an invalid declaration of
intention;
(d) If it is shown that the minor children of the person
naturalized failed to graduate from a public or private high schools of
the Philippines, where Philippine history, government and civics are
taught as part of the school curriculum through the fault of their
parents either by neglecting to support them or by transferring them
to another school or schools (not when they dropped out because of
scholastic performance). A certified copy of the decree cancelling
the naturalization certificate shall be forwarded by the clerk of the
Court to the Office of the President and the Solicitor-General;
(e) If it is shown that the naturalized citizen has allowed himself
to be used as a dummy in violation of the Constitutional or legal
provision requiring Philippine citizenship, as a requisite for the
exercise, use or enjoyment of a right, franchise or privilege.
Another ground for denaturalization is if the applicant naturalized
citizen now returns to his country of origin and resides there for a
period of 1 year, there is a disputable presumption that he intends to
take permanent residence in that country of origin again.
If it's in any other foreign country, the period is 2 years then he will
be considered to be disputably intending to reside in that foreign
country.
Denaturalization is filed in the same court in the same case which
granted the naturalization. That's why while the decree is final after
the 2-year waiting period, it is not really final after all because there
is still be a possibility of denaturalization where his naturalization
may be cancelled.
 Administrative Naturalization
Republic Act No. 9139 (The Administrative Naturalization Law of
2000) provides that aliens born and residing in the Philippines may
be granted Philippine citizenship by administrative proceeding by
filing a petition for citizenship with the Special Committee of the
DOJ, which, in view of the facts before it, may approve the petition
and issue a certificate of naturalization.
Article IV, Section 3. Qualifications. - Subject to the provisions of
the succeeding section, any person desiring to avail of the benefits
of this Act must meet the following qualifications:
(a) The applicant must be born in the Philippines and residing
therein since birth;
(b) The applicant must not be less than eighteen (18) years of
age, at the time of filing of his/her petition;
(c) The applicant must be of good moral character and believes
in the underlying principles of the Constitution, and must have
conducted himself/herself in a proper and irreproachable manner
during his/her entire period of residence in the Philippines in his
relation with the duly constituted government as well as with the
community in which he/she is living;
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(d) The applicant must have received his/her primary and
secondary education in any public school or private educational
institution dully recognized by the Department of Education, Culture
and Sports, where Philippine history, government and civics are
taught and prescribed as part of the school curriculum and where
enrollment is not limited to any race or nationality: Provided, That
should he/she have minor children of school age, he/she must have
enrolled them in similar schools;
(e) The applicant must have a known trade, business,
profession or lawful occupation, from which he/she derives income
sufficient for his/her support and if he/she is married and/or has
dependents, also that of his/her family: Provided, however, That this
shall not apply to applicants who are college degree holders but are
unable to practice their profession because they are disqualified to
do so by reason of their citizenship;
(f) The applicant must be able to read, write and speak Filipino
or any of the dialects of the Philippines; and
(g) The applicant must have mingled with the Filipinos and
evinced a sincere desire to learn and embrace the customs,
traditions and ideals of the Filipino people. (Republic Act 9139)
As a summary, the following are the substantial requirements in
administrative naturalization:
1. Age
2. Residence (since birth)
Note that in judicial naturalization, the residency requirement is 10 or
5 years (in certain cases). But in administrative naturalization, the
applicant must be residing in the Philippines since birth. Thus,
applying RA 6809 (An Act Lowering the Age of Majority from 21 to
18 Years, Amending for the Purpose EO 209, And for Other
Purposes), the applicant must be a resident for at least 18 years
since birth.
3. Character
4. Property
In judicial naturalization, the property requirement includes
ownership of a real estate amounting to not less than P5000, or
gainful employment. In administrative naturalization, there is no
more real estate with a value of at least P5000. What is merely
required is gainful employment.
5. Education
In judicial naturalization, only the minor children are required to
attend to an educational institution not limited to any race or
nationality. But in administrative naturalization, in addition to the
minor children, the applicant himself must also attend to such
school.
6. Not otherwise disqualified by law
If the applicant is a foreigner male born here or residing here since
birth and married to a foreigner female, the foreigner female / wife
will derive. But if it's the other way around, the applicant is a
foreigner female born here, residing here since birth, and married to
a foreigner male, the grant of the administrative naturalization to that
female applicant will not benefit the husband. The husband
continues to become a foreigner unless he applies for judicial
naturalization.
Minor children will automatically derive the citizenship granted to the
applicant parent.
3. Loss and Reacquisition of Citizenship
Article IV, Section 3. Philippine citizenship may be lost or
reacquired in the manner provided by law.
a. Loss of Citizenship
COMMONWEALTH ACT No. 63
(AN ACT PROVIDING FOR THE WAYS IN WHICH PHILIPPINE
CITIZENSHIP MAY BE LOST OR REACQUIRED)
Section 1. How citizenship may be lost. – A Filipino citizen may
lose his citizenship in any of the following ways and/or events:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining twenty-one
years of age or more: Provided, however, that a Filipino may not
divest himself of Philippine citizenship in any manner while the
Republic of the Philippines is at war with any country;
(4) By rendering services to, or accepting commission in, the
armed forces of a foreign country: Provided, That the rendering of
service to, or the acceptance of such commission in, the armed
forces of a foreign country, and the taking of an oath of allegiance
incident thereto, with the consent of the Republic of the Philippines,
shall not divest a Filipino of his Philippine citizenship if either of the
following circumstances is present:
(a) The Republic of the Philippines has a defensive and/or
offensive pact of alliance with the said foreign country; or
(b) The said foreign country maintains armed forces on
Philippine territory with the consent of the Republic of the
Philippines: Provided, That the Filipino citizen concerned, at the time
of rendering said service, or acceptance of said commission, and
taking the oath of allegiance incident thereto, states that he does so
only in connection with his service to said foreign country: And
provided, finally, That any Filipino citizen who is rendering service to,
or is commissioned in, the armed forces of a foreign country under
any of the circumstances mentioned in paragraph (a) or (b), shall not
be permitted to participate nor vote in any election of the Republic of
the Philippines during the period of his service to, or commission in,
the armed forces of said foreign country. Upon his discharge from
the service of the said foreign country, he shall be automatically
entitled to the full enjoyment of his civil and political rights as a
Filipino citizen;
(5) By cancellation of the of the certificates of naturalization;
(6) By having been declared by competent authority, a deserter
of the Philippine armed forces in time of war, unless subsequently, a
plenary pardon or amnesty has been granted; and
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(7) In the case of a woman, upon her marriage to a foreigner if,
by virtue of the laws in force in her husband's country, she acquires
his nationality.
Take note that under the 1987 Constitution, the 7th ground or the
marriage of a Filipina to a foreigner is no longer a ground to lose
Philippine citizenship. But under the 1935 Constitution, the mere
marriage to a foreigner husband would mean that the Filipina has
lost her Philippine citizenship.
Q: In relation to this, may a child born of Filipino mother and
foreigner father under the 1935 Constitution be allowed to elect
Philippine citizenship upon reaching the age of majority?
A: We must distinguish. When the Filipino mother has not yet been
naturalized when the child was conceived, then the law may allow
the child to elect Philippine citizenship upon reaching the age of
majority. In this case, there is still a ―Filipino mother‖ to speak of.
This also applies even if at the time of the conception of the child,
the Filipino mother has filed for naturalization but the same has not
yet attained finality.
However, when the Filipino mother has been fully naturalized upon
the child‘s conception, then there is no more Filipino mother to talk
about. As such, the child cannot elect Philippine citizenship upon
reaching the age of majority.
b. Reacquisition of Citizenship
COMMONWEALTH ACT No. 63
(AN ACT PROVIDING FOR THE WAYS IN WHICH PHILIPPINE
CITIZENSHIP MAY BE LOST OR REACQUIRED)
Section 2. How citizenship may be reacquired. – Citizenship may
be reacquired:
(1) By naturalization: Provided, That the applicant possess none of
the disqualification's prescribed in section two of Act Numbered
Twenty-nine hundred and twenty-seven,
(2) By repatriation of deserters of the Army, Navy or Air Corp:
Provided, That a woman who lost her citizenship by reason of her
marriage to an alien may be repatriated in accordance with the
provisions of this Act after the termination of the marital status; and
(3) By direct act of the National Assembly.
 Modes of Reacquiring Philippine citizenship:
1. Naturalization
2. Repatriation
3. Direct Act of Congress
 Repatriation laws:
1. CA 63
Repatriation under CA 63 has a very limited applicability. This is only
available to deserters of the Armed Forces and Filipino woman who
lost her Philippine citizenship by mere marriage to a foreigner
husband.
2. PD 725
In addition to CA 63, Presidential Decree No. 725 was passed,
providing for repatriation of Filipino women who had lost their
Philippine citizenship by marriage to aliens, and of natural born
Filipinos. The said law paved the way for the creation of a Special
Committee on Naturalization.
LABO vs. COMELEC
FACTS: Petitioner Ramon Labo, elected mayor of Baguio City was
questioned on his citizenship. He was married in the Philippines to
an Australian citizen. The marriage was declared void in the
Australian Federal Court in Sydney on the ground that the marriage
had been bigamous. According to Australian records, Labo is still an
Australian citizen.
ISSUE: Whether or not Petitioner Labo is a citizen of the Philippines.
RULING: The petitioner’s contention that his marriage to an
Australian national in 1976 did not automatically divest him of
Philippine citizenship is irrelevant. There is no claim or finding that
he automatically ceased to be a Filipino because of that marriage.
He became a citizen of Australia because he was naturalized as
such through a formal and positive process, simplified in his case
because he was married to an Australian citizen. As a condition for
such naturalization, he formally took the Oath of Allegiance and/or
made the Affirmation of Allegiance, renouncing all other allegiance.
It does not appear in the record, nor does the petitioner claim, that
he has reacquired Philippine citizenship.
3. RA 8171
REPUBLIC ACT 8171
(AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO
WOMEN WHO HAVE LOST THEIR PHILIPPINE CITIZENSHIP BY
MARRIAGE TO ALIENS AND OF NATURAL-BORN FILIPINOS)
Section 1. Filipino women who have lost their Philippine citizenship
by marriage to aliens and natural-born Filipinos who have lost their
Philippine citizenship, including their minor children, on account of
political or economic necessity, may reacquire Philippine citizenship
through repatriation in the manner provided in Section 4 of
Commonwealth Act No. 63, as amended that the applicant is not a:
(1) Person opposed to organized government or affiliated with
any association or group of persons who uphold and teach doctrines
opposing organized government;
(2) Person defending or teaching the necessity or propriety of
violence, personal assault, or association for the predominance of
their ideas;
(3) Person convicted of crimes involving moral turpitude; or
(4) Person suffering from mental alienation or incurable
contagious diseases.
What do you mean by Moral Turpitude?
PATERINA vs. SINGSON
Singson went to HK and in the airport he was arrested for
possession of prohibited drugs. Pleaded guilty and served his
sentence. Then went back to the Philippines, he ran and won. His
qualification was questioned because he had been convicted in a
foreign court. SC said drug possession does not carry moral
turpitude.
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PICHAY vs. PEOPLE
Pichay as sitting member of Congress was charged and convicted
for libel. And then he ran and his qualification was questioned
because he had been convicted for libel. The SC said that libel is a
crime that carries or involves moral turpitude. So therefore, he is
disqualified.
This law on repatriation is also reserved to two types of
individuals:
a. Filipino women who have lost their Philippine
citizenship by marriage to aliens
b. Natural-born Filipinos who have lost their Philippine
citizenship, including their minor children, on account of
political or economic necessity
Under Section 2 of RA 8171, repatriation shall be effected by taking
the necessary oath of allegiance to the Republic of the Philippines
and registration in the proper civil registry and in the Bureau or
Immigration. The Bureau of Immigration shall thereupon cancel the
pertinent alien certificate of registration and issue the certificate of
identification as Filipino citizen to the repatriated citizen.
4. RA 9225
REPUBLIC ACT 9225
(CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF 2003)
Section 3. Retention of Philippine Citizenship - Any provision of
law to the contrary notwithstanding, natural-born citizenship by
reason of their naturalization as citizens of a foreign country are
hereby deemed to have re-acquired Philippine citizenship upon
taking the following oath of allegiance to the Republic:
xxx
Natural born citizens of the Philippines who, after the effectivity of
this Act, become citizens of a foreign country shall retain their
Philippine citizenship upon taking the aforesaid oath.
Repatriation is not an act to perfect Philippine citizenship.
Section 5. Civil and Political Rights and Liabilities - Those who
retain or re-acquire Philippine citizenship under this Act shall enjoy
full civil and political rights and be subject to all attendant liabilities
and responsibilities under existing laws of the Philippines and the
following conditions:
(1) Those intending to exercise their right of surffrage must
Meet the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas
Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public in the Philippines shall meet
the qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to
administer an oath;
(3) Those appointed to any public office shall subscribe and
swear to an oath of allegiance to the Republic of the Philippines and
its duly constituted authorities prior to their assumption of office:
Provided, That they renounce their oath of allegiance to the country
where they took that oath;
(4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a license or
permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended to,
those who:
(a) are candidates for or are occupying any public office in
the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the country which they
are naturalized citizens. (Republic Act 9225)
When one seeks to run for public elective office, RA 9225 provides
for an additional requirement. At the time of the filing of the
certificate of candidacy, the repatriated citizen must make a personal
and sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath.
SOBEJANA-CONDON vs. COMELEC
678 SCRA 267 (2012)
FACTS: Petitioner is a natural-born Filipino citizen... she became a
naturalized Australian citizen owing to her marriage to a certain
Kevin Thomas Condon.
She filed an application to re-acquire Philippine citizenship pursuant
to RA 9225.
The application was approved and the petitioner took her oath of
allegiance to the Republic of the Philippines. The petitioner filed an
unsworn Declaration of Renunciation of Australian Citizenship
before the Department of Immigration and Indigenous Affairs,
Canberra, Australia, which in turn issued the Order dated September
27, 2006 certifying that she has ceased to be an Australian citizen.
Petitioner ran for Mayor in Caba, La Union in the 2007 elections.
She lost.
She again sought elective office during the May 10, 2010 elections
this time for the position of Vice-Mayor and was proclaimed as the
winning candidate.
Private respondents filed separate petitions for quo warranto
questioning the petitioner's eligibility.
The petitions similarly sought the petitioner's disqualification from
holding her elective post on the ground that she is a dual citizen and
that she failed to execute a "personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to
administer an oath" as imposed by R.A. No. 9225.
Trial court held that the petitioner's failure to comply with R.A. No.
9225 rendered her ineligible to run and hold public office.
The personal declaration of renunciation she filed in Australia was
not under oath.
The petitioner appealed to the COMELEC but the appeal was
dismissed
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Hence, the present petition ascribing grave abuse of discretion to
the COMELEC en banc.
ISSUE: For purposes of determining the petitioner's eligibility to run
for public office, whether the "sworn renunciation of foreign
citizenship" in Section 5(2) of R.A. No. 9225 is a mere pro-forma
requirement.
RULING: Petitioner is disqualified from running for elective office for
failure to renounce her Australian citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino
citizenship for natural-born citizens who have lost their Philippine
citizenship by taking an oath of allegiance to the Republic
The oath is an abbreviated repatriation process that restores one's
Filipino citizenship and all civil and political rights and obligations
concomitant therewith, subject to certain conditions imposed in
Section 5, viz:
Sec. 5. Civil and Political Rights and Liabilities. Those who retain or
re-acquire Philippine citizenship under this Act shall enjoy full civil
and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the
following conditions:
(2) Those seeking elective public office in the Philippines shall meet
the qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to
administer an oath.
She filed a renunciation of Australian citizenship in Canberra,
Australia. Admittedly, however, the same was not under oath
contrary to the exact mandate of Section 5(2) that the renunciation
of foreign citizenship must be sworn before an officer authorized to
administer oath.
Hence, Section 5(2) of Republic Act No. 9225 compels natural- born
Filipinos, who have been naturalized as citizens of a foreign country,
but who reacquired or retained their Philippine citizenship (1) to take
the oath of allegiance under Section 3 of Republic Act No. 9225,..
and (2) for those seeking elective public offices in the Philippines, to
additionally execute a personal and sworn renunciation of any and
all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify
as candidates in Philippine elections.
[T]he intent of the legislators was not only for Filipinos reacquiring or
retaining their Philippine citizenship under Republic Act No. 9225 to
take their oath of allegiance to the Republic of the Philippines, but
also to explicitly renounce their foreign citizenship if they wish to run
for elective posts in the Philippines. To qualify as a candidate in
Philippine elections, Filipinos must only have one citizenship,
namely, Philippine citizenship.
It is an additional qualification for elective office specific only to
Filipino citizens who re-acquire their citizenship under Section 3 of
R.A. No. 9225. It is the operative act that restores their right to run
for public office. The petitioner's failure to comply therewith in
accordance with the exact tenor of the law, rendered ineffectual the
Declaration of Renunciation of Australian Citizenship she executed.
As such, she is yet to regain her political right to seek elective office.
Unless she executes a sworn renunciation of her Australian
citizenship, she is ineligible to run for and hold any elective office in
the Philippines.
MAQUILING vs. COMELEC
696 SCRA 420; 700 SCRA 367 (2013)
FACTS: After being granted the benefits under RA 9225, Arnado
travelled abroad using his foreign passport, thereby representing
himself as a foreign national.
ISSUE: Whether or not the use of a foreign passport after
renouncing foreign citizenship affects one‘s qualifications to run for
public office.
RULING: Yes. The requirement of renunciation of any and all
foreign citizenship, when read together with Section 40(d) of the
Local Government Code which disqualifies those with dual
citizenship from running for any elective local position, indicates a
policy that anyone who seeks to run for public office must be solely
and exclusively a Filipino citizen. To allow a former Filipino who
reacquires Philippine citizenship to continue using a foreign passport
– which indicates the recognition of a foreign state of the individual
as its national – even after the Filipino has renounced his foreign
citizenship, is to allow a complete disregard of this policy. Allowing
the subsequent use of a foreign passport because it is convenient
for the person to do so is rendering the oath of renunciation a hollow
act. It devalues the act of taking of an oath, reducing it to a mere
ceremonial formality.
While the act of using a foreign passport is not one of the acts
enumerated in Commonwealth Act No. 63 constituting renunciation
and loss of Philippine citizenship, it is nevertheless an act which
repudiates the very oath of renunciation required for a former Filipino
citizen who is also a citizen of another country to be qualified to run
for a local elective position.
Simply put, the use of foreign passport after renouncing one‘s
foreign citizenship is a positive and voluntary act of representation
as to one‘s nationality and citizenship. It does not divest Filipino
citizenship regained by repatriation but it recants the Oath of
Renunciation required to qualify one to run for an elective position.
By representing himself as an American citizen through the use of a
foreign passport, Arnado voluntarily and effectively reverted to his
earlier status as a dual citizen, which disqualifies him from running
for an elective office.
If it involves an appointive office, there must be a sworn renunciation
of any and all foreign allegiances.
4. Dual Allegiance
Article IV, Section 5. Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law.
RA 7160, Section 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
xxx
(d) Those with dual citizenship;
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Q: Can a person of dual citizenship be appointed to a public office?
A: Seemingly, the answer is yes because what is required to be
renounced is allegiance, not citizenship.
MERCADO vs. MANZANO
307 SCRA 630 (1999)
Dual citizenship is different from dual allegiance. The former arises
when, as a result of the concurrent application of the different laws
of two or more states, a person is simultaneously considered a
national by the said states. For instance, such a situation may arise
when a person whose parents are citizens of a state which adheres
to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and without any
voluntary act on his part, is concurrently considered a citizen of both
states.
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is
the result of an individual‘s volition.
With respect to dual allegiance, Article IV, 5 of the Constitution
provides: Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law.
 Instances where one can have DUAL CITIZENSHIP:
1. A person whose parents are citizens of a state which
adheres to the principle of jus sanguinis is born in a state which
follows the doctrine of jus soli. Such a person, ipso facto and
without any voluntary act on his part, is concurrently considered
a citizen of both states.
2. A Filipino woman who marries a foreigner husband who by
reason of the laws of a foreigner husband's country is deemed
to have acquired the citizenship of the husband involuntarily
except for the fact of marriage, she becomes a dual citizen.
3. Children of that mixed marriage will also be of dual
citizenship involuntarily without any positive act required of
them.
Unlike in dual allegiance, this is a sense of loyalty to a sovereign.
This is voluntary to a person. So a person may have only one
citizenship but may have many allegiances.
Conversely, it does not follow that if a person has dual citizenship
that he owes allegiance to both because again dual citizenship is
brought to a person involuntarily and not voluntarily.
In case of repatriation, there are only 2 kinds of citizenship in the
country as follows:
1. Natural born
2. Naturalized
If you are repatriated under any of those laws (CA 63, PD 725, RA
8171, RA 9225), what you reacquire is your former citizenship
status. And because all of them refer to former natural born, what
one reacquires is his former natural born status.
In the case of Grace Poe, the SC said that there is no such thing as
reacquired citizenship, it's either you are naturalized or natural born
even if you have reacquired your former citizenship status. There
are 2 categories only.
The phrase "since birth" refers to the fact of citizenship. Can a
foreigner at birth be considered as natural born citizen?
RA 9225 benefits the minor children. Minor children will derive the
reacquired status and it includes legitimate, illegitimate, legitimated
and adopted children.
Example: Suppose the Filipino woman marries Lebron James and
becomes a naturalized American, then they have a child. Can the
child become a Filipino citizen assuming under RA 9225?
YES, because the law says "minor children" and there is a Filipino
mother to talk about. Even if she became naturalized as an
American, by blood she is Filipino.
What if the same couple adopts a child from another foreign
country? Can a legally adopted child become a Filipino citizen?
YES. Hence, even if a person is not a Filipino citizen at birth, he can
become a Filipino citizen under RA 9225.
August 1, 2018 – Zarah Domingo
MA vs. FERNANDEZ (2010)
This is respecting the election of Philippine citizenship or that
category of children where the oath of allegiance and the sworn
election were not registered with the Local Civil Registry
SC said that the mistake should not deprive them of their election
because the registration merely seeks the confirmation of the
election which they have done before. What is important is that they
actually did, within reasonable time, upon reaching the age of
majority, elected to become a citizen.
CARDINO vs. COMELEC
819 SCRA 586 (2017)
In this case, the affidavit of renunciation required for running for
public office after reacquisition in RA 9225 was supposedly on July
19 but the affidavit contained July 16 which she could not have done
because she was out of the country. SC took the testimony of the
Municipal Trial Court Judge, who was the one who administered the
oath, that there was really a mistake or error in the date. Therefore,
if it is a clear clerical error, that should not affect the validity of the so
called certificate of renunciation.
The case of Sobejana-Condon vs. COMELEC (2012) was discussed
there because if you remember, in that case, the affidavit was not
sworn actually. So, renunciation of foreign citizenship was not
effective. Therefore she was disqualified.
D. Sovereignty
1. Sovereign Immunity from Suit
a. Basis
Article XIV, Section 3. The State may not be sued without its
consent.
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The discussion on Sovereignty is on Sovereign immunity from suit. It
is also a standard bar question--more on your understanding of what
the concept of sovereign immunity is.
The state is immune, with or without a constitutional provision to that
effect. The constitutional provision that basically states that the State
cannot be sued without its consent is not a grant. It is a limitation,
meaning, the state can now be sued, provided it has given its
consent. Without that, the State cannot be sued under any and all
circumstances.
b. When a Suit against the State
For the defense of State immunity to be claimable or applicable in a
particular case, we must all remember what the nature of the suit is.
It must be the defendant --the State, (meaning the State is sued by
name), an unincorporated government entity, is sued. If it is
incorporated, then normally it has the powers of an ordinary
corporation. Common to the three would be, that the ultimate liability
rest upon the State.
1.) the power to sue; and
2.) the corresponding power to be sued; or
3.) that when a public officer is sued in his official capacity.
The ultimate liability must have to result into a financial liability or
loss of property. Thus, if the case does not amount to that, even if
the State is made defendant, if a public officer is made defendant,
even if an unincorporated government entity is made a defendant,
but the result of the case is not about financial liability or loss of
government property, it is not a suit against the State. The state
immunity does not apply.
You have come across cases like Juan Dela Cruz vs. Republic,
Juan Dela Cruz vs. Office of the President, these are probably more
on decisions or review of orders of the Office of the President but it
has nothing to do with possible financial liability. So when the suit is
against the State, clearly, the State would normally claim the
defense of State immunity. So if there is no consent, the suit can be
dismissed outright.
Questions are normally phrased in relation to “contractual
publication.” If you remember Act 3083, that is our express consent,
actually by law.
c. Consent to be Sued
1. EXPRESS CONSENT
An express consent must come in the form of a law because it
affects the sovereign right of the state to defend itself from any of
these cases. So it must have to be by direct act of Congress. Act
3083 is still a good law. It may be old but it is still the basis for all
money claims arising from contract, express or implied. It has been
cited in several cases.
Normal questions would range from an unincorporated government
entity entering into a contract for acquisition of goods, services, with
private suppliers or manufacturers; that an incorporated government
entity makes a down payment, gets the goods and services in full,
and would not pay the remainder of the balance. The question is can
the supplier or manufacturer sue? So if it is a suit against the State,
the usual answer is that the state may claim immunity. However if it
is based on a contract, express, Act 3083 is the usual form of
express consent. So that is how the questions are normally phrased.
ACT NO. 3083 - AN ACT DEFINING THE CONDITIONS UNDER
WHICH THE GOVERNMENT OF THE PHILIPPINE ISLANDS MAY
BE SUED
Section 1. Complaint against Government. — Subject to the
provisions of this Act, the Government of the Philippine Islands
hereby consents and submits to be sued upon any moneyed claim
involving liability arising from contract, expressed 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 Insular
Auditor 1 and that the latter did not decide the same within two
months from the date of its presentation.
Sec. 3. Venue. — Original actions brought pursuant to the authority
conferred in this Act shall be instituted in the Court of First Instance
of the City of Manila or of the province were 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 Philippine Island 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
Philippine Islands pursuant to the authority granted in this Act shall
be served upon the Attorney-General 2 whose duty it shall be to
appear and make defense, either himself or through delegates.
Sec. 7. Execution. — No execution shall issue upon any judgment
rendered by any court against the Government of the Philippine
Islands 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 Governor-General, 3 within five
days after the same becomes final.
Sec. 8. Transmittal of Decision. — The Governor-General, 4 at the
commencement of each regular session of the Legislature, 5 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.
2. IMPLIED CONSENT
Your outline mentions of implied consent. Now implied consent
covers basically what the Supreme Court has, by jurisprudence,
considered to be implied consent.
a. Government enters into Business Contracts
First, in your outline is when the government enters into a business
contract. So it is not the fact of entering into a contract that
determines the presence or absence of consent, rather it is the
nature of the contract entered into. Similar with an unincorporated
government entity, just because it is unincorporated that
automatically it becomes suable.
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If the unincorporated government agency performs a non-
governmental function, meaning business or proprietary, then there
is “implied consent.” It is not the fact of entering into a contract but
the nature of the contract entered into.
b. Inequitable to Claim Immunity
Then, you have, when it is inequitable. Normally, the cases on
equity, because it is not a positive rule of law, is based on situations
where it would result into an unjust situation if the state is allowed to
claim immunity. All of these cases involve more or less actual
expropriation.
Under the Rules of Court, when the State expropriates, that would
mean it goes through the proceedings: file the petition, make a full
deposit of at least the initial valuation of the property, get a writ of
possession, enter the property, and fight over what the just
compensation is, at the second stage of eminent domain after
determining the propriety of expropriation.
In actual expropriation or actual exercise of eminent domain, if the
property owner sues thereafter for the value of the property, then the
State ordinarily should be able to claim immunity because, say this
is a suit against the DPWH, which is an unincorporated government
entity, the answer is yes. Will it result into a financial liability? The
answer is yes, so it could easily claim immunity.
However, in almost all cases, the Supreme Court said it will be
inequitable if DPWH will be allowed to claim immunity. So that is
your common example of express consent.
Don’t confuse yourself with that case of BUISAN vs. COA (2017).
BUISAN v. COA
816 SCRA 346 (2017)
This case involves the DPWH where there was a claim for damages
arising from the implementation of flood control projects in some
Maguindanao towns. After 3 years, the owners of the crops,
supposed to have been damaged by the flood control project
implemented by DPWH, sued DPWH for the amount or value of the
crops damaged. SC upheld the claim of state immunity because,
again, this was not actual expropriation. This was “a belated claim”
for damages for crops supposedly damaged because of flood control
project implementation. The factual setting is different because you
might come across a case involving DPWH. DPWH does not always
exercise actual expropriation. He may conduct certain activities
which are not in the form of actual expropriation.
c. Government Initiates a Complaint, Open to
Counterclaim
Then you have, government initiates a complaint open to
counterclaim. That is actually provided for in Act 3083. It is listed as
implied consent because it requires the initiation of a complaint by
the state. It is not a positive rule where you can immediately sue the
State unless the State files a case and takes the claim against a
private person, the theory being that the State is considered to have
descended to the level of an ordinary party to a case, therefore
opening itself to any form of counterclaim. In that sense, there is an
implied consent.
3. Scope of Consent
If a suit is initiated and it is based on Act 3083 as in express consent
or any of the forms of implied consent, consent is valid from the time
of the initiation of the action up to the rendition of the judgment or
decision. It does not go beyond it because under our rules, the
Constitution specifically, COA has the power to settle all claims
against the State.
NHA vs. ROXAS
773 SCRA 358 (2015)
Any claim must have to be presented to COA first because COA
may have some money to settle the financial liability against the
State. This case involves NHA, is NHA immune from suit? The
Supreme Court said no because it has a charter of its own.
However, because of the nature of its funds, it cannot just be
executed just like any other ordinary judgment; it must have to be
presented to COA.
If you have read Act 3083, that’s one of the provisions there. There
is a precondition before you can go to Court, you must have to
present your claim to COA first, and that is like a certificate of
conciliation or similar to that. But before you could go and file a case
in court, you must have to present your claim to COA. And if there is
a decision favorable to the claimant, plaintiff, it must have to be
presented to COA again before there could be “execution.”
If there is no money to settle that, we all know that it has to be
included in the appropriations for next year so it can be funded.
Government property and funds cannot be garnished, cannot be
executed like any other party to a claim.
4. Suability vs. Liability
Suability depends on whether there is consent while liability depends
on the facts, the evidence and the law.
Article 2180 has long been discussed and included there because
the question is, is that a rule on suability? No, it is the rule on
liability. While 2180 provides for certain liability based on tort, if there
is no consent to be sued, the State cannot be made liable.
Suability depends on the presence or absence of consent. So even
if by law, by facts and evidence, the State is liable, if it has not given
its consent, you can never prove his liability. Conversely, even if the
State consent, you can sue, yes, but it does not automatically mean
that the State is liable because you must have to prove, by facts, by
evidence and by law, that the State, after giving its consent is liable.
The case there involving a municipal corporation involve the issue of
whether a municipal corporation is suable? Yes because again it has
a charter of its own. But is it liable? It has to depend on whether it
was in a governmental capacity or proprietary purposes because
largely, if it is governmental, it could not be held liable. The individual
employees will be liable, not the municipal corporation.
And your problem, when do you know it is governmental, when do
you know it is proprietary? To provide for electricity, is that
governmental, or public utility, is that a governmental function or a
business or a proprietary function? Just think about it.
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E. Government
Government, there’s nothing much there. I will leave to Ms. Mocha
Uson to explain to you what federal system is. Because apparently,
even Malacañang is saying that she is going to discuss it for
everybody. I hope you have followed her on social media because
she will be discussing what the draft Federal Constitution is.
V. THE STRUCTURE AND POWERS OF THE NATIONAL
GOVERNMENT
A. LEGISLATIVE DEPARTMENT (CONGRESS)
1. Composition, Qualifications, and Term of Office
a. Senate
Article VI, Section 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.
Article VI, Section 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.
Article VI, Section 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.
b. House of Representatives
Article VI, Section 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 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.
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
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.
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 standards provided in this section.
Article VI, Section 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 than one year immediately
preceding the day of the election.
Article IX-C, Section 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.
Article IX-C, Section 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.
Article IX-C, Section 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, boards of canvassers, or other similar bodies. However,
they shall be entitled to appoint poll watchers in accordance with
law.
With the respect to term of office, except for those first appointed,
there is nothing much there. You just have to remember, because of
the synchronization of the election, the first elected senators under
the 1987 elections, serve from 1988 to 1992, for a complete term.
While the term is 6 years, that is not 6 years but that is a complete
term. In 1992 elections, the top 12 will serve for a full term of 6
years, the 2nd twelve, (13-24), will serve for a full term of 3 years,
still, full term. Thereafter, 1995, we elect 12 senators to serve for a
full term of 6 years. Except for those, 1988, 1992, and 1995, there’s
an election every 3 years of 12 senators.
That will have to be remembered for the purpose of increases in
salary. We all know that increase of salary for members of
Congress, cannot take effect until after the full term of all the
members of that Congress approving the increase. Not the members
that approve, but the Congress that approved it. So even if you
voted no, you cannot get the increase just because you voted no,
until the full term. If you read the report yesterday, the Supreme
Court came up with a new decision on the contempt powers of
Congress.
If you remember that old case, 1940 and 1950 case of Arnault vs.
Nazareno and Balagtas on the contempt powers of Congress,
conducting inquiries in aid of legislation, it said that for as long as the
contumacious behavior continues, that person can be imprisoned.
In yesterday’s news, at least where the spokesperson of the SC
(there’s no full text yet), the idea or the principle before that the
Senate is a continuing body, therefore those cited in contempt can
be imprisoned by the Senate in “perpetual”, is no longer correct,
because it should be coexistent with the duration of the
investigation.
If the investigation is really done, even if he continues to be actually
in contempt of the Senate, he should be released because no more
reason or justification for his continued detention, simply because
the investigation for which he has been imprisoned for contumacious
behavior has been terminated. So the idea is while it is continuing,
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4- Manresa (2018-2019) | Ateneo de Davao University
Senate is a continuing body, because of that 12-12-12 every 3
years. For the House of Representatives, that’s nothing, because
they are elected every 3 years.
 Qualifications
The only discussion with respect to qualification will be natural born
citizenship and the requirement of residence.
When we say residency, we understand that it means, domicile. The
rule is that a person can have only 1 domicile, it cannot have many.
It can have many actual residences, legal or otherwise, but there’s
only one domicile. Normally, the domicile is domicile at birth, but if a
person changes domicile, then there can be a domicile of choice. It
can even be a domicile of choice because a female has established
a family home (that was part of the discussion in the old case of
Romualdez-Marcos vs. COMELEC where it was said that she
maintained a family home in Manila because of her marriage to the
former Senator who became President, but it need not follow that
she has changed residence or domicile unless the family home is
constituted as the new domicile of choice.)
Domicile can be changed provided there is:
(1) An actual removal or change of domicile;
(2) Good faith and intention to abandon the old and
establish a new one; and
(3) Definite acts which would correspond to the purpose
of effectively changing the domicile.
In the case of Co vs. COMELEC, there was an additional
requirements or characterization, the SC added that while there is
an animus revertandi to revert to your domicile and it must have to
be permanent or continuing, when you change your domicile, there
must also be an intention of not returning to your former domicile. So
while you have acquired a new one, you must not have the intention
of returning to your old domicile, in order for you to acquire a new
domicile.
 “Animus Non-revertendi”
The other matters with respect to change of domicile, the old case of
MITRA vs. COMELEC (2010), there is no such thing as subjective
legal standards.
MITRA v. COMELEC
622 SCRA 749 (2010)
In this case, Mitra wanted to run as governor having been a resident
of Puerto Princesa for so long. Since it is no longer a component city
of the Province of Palawan, he has to transfer residence to a
municipality on the province. He transferred to what was apparently
an old abandoned fertilizer warehouse which was devoid of any
luxury consistent with his stature in society.
The argument was that, that could not be his new residence
because it is devoid of any luxury consistent with his being a Mitra.
The COMELEC sustained the argument of the protestant. Mitra lost.
The SC reversed it saying that legally, there can be a change of
residence if 1-3 are present. There is no such thing as subjective
legal standards, you cannot say that this is not his new residence or
new domicile because it is not the same 20 Million worth residence
which he used to have.
SABILI vs. COMELEC
670 SCRA 664 (2012)
In this case, it was held that your residence does not even have to
be completed in one time. It can be by increments, transfer today
and then next week. You again do things constitutive of your
intention to transfer your domicile.
CABALLERO vs. COMELEC
771 SCRA 213 (2015)
This involves the natural born citizen who lost it by naturalization and
reacquired it under 9225, he reacquired it say in September 2012,
for the May 2013 election, took an oath, affidavit of renunciation,
filed a COC in October 2012 for the 2013 election. Is he qualified?
He did not comply with the residency requirement. RA 9225 is a law
to reacquire your former natural born status. By executing the
renunciation, he is considered a Filipino citizen only, therefore not
disqualified as a dual citizen, however, reacquisition under 9225 is to
reacquire citizenship.
When a person who resides or is naturalized abroad, a former
natural born necessarily abandons Philippines as his domicile,
because he has to take up residence in that foreign country. It is not
unlike citizenship where if you reacquire it, it traces back to your
origin, residence is not, because you have to change your domicile
from Philippines to that foreign country.
When you return, having reacquired under RA 9225, you must have
to re-establish your residence. If it is 1 year, if it is 5 or 10 years, as
the case may be, that must have to be complied with, because RA
9225 says aside from that sworn renunciation, you must have all the
qualifications under the law. The law requires at least 1 year for local
elective position.
DANO vs. COMELEC
802 SCRA 446 (2016)
In this case, there is a little twist. The dates were so close. She was
from Sevilla, Bohol, went to the States. She was a nurse, naturalized
in the US, became American and came back. She went back to
Sevilla, Bohol, say February of 2012. She secured a community tax
certificate. In March 2012, she reacquired under RA 9225. In May 2,
2012, she registered as a voter in Sevilla, Bohol. On May 10, went
back to States and stayed there until September 28, 2012, to wind
up her affairs in the States. She came back on September 30. She
executed an affidavit of renunciation of any and all foreign
citizenships. In October 2012, she filed a certificate of candidacy for
mayor of Sevilla, Bohol, ran and won on the May 2013 elections.
Question, is she qualified? Yes.
In Arnado vs. COMELEC, if you are a former natural born who has
reacquired citizenship travelled abroad using US passport, you are
deemed to have revoked your affidavit of renunciation.
This did not happen in the Dano vs. COMELEC case, so there is no
revocation or renunciation. But what about the 1 year period, you
must have to satisfy the 1-year residency. COMELEC naturally
disqualified Dano, saying the she did not comply with the 1 year
period, 1 year being from date of election, not the filing of COC. The
reckoning date is whether she has reacquired residence for 1 year
before the May 13, 2013 elections. Remember, the dates were so
close, registered as voter on May 2, 2012, left on May 10, 2012,
stayed in the States until September 28, was absent for 4 months.
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The Supreme Court said she complied, the reason being, well there
were several testimonies that because she was literally coming back
before the 2012 election, every time there is fiesta in Bohol she
would give money. Kanang sturya gud na: “Mudagan ko para
makaserbisyo ko sa katawhan.” Look at the philanthropists of the
world, they are not public officials, they could spend their own
money, mudagan jud para naay position, kay gastuhun man ang
kwarta sa gobyerno, inyu imung nawng diha, ”through the initiative
of.”
The SC said it can be by increment. Your physical presence in your
new domicile, need not be a 24/7 thing, it need not be unbroken. So
for so long as the intention is there, and there are evidence, quoted
by the SC from testimonies from the punong-barangay, saying that
there was intention of really returning and establishing Sevilla,
Bohol, as her new residence, her stay in the US was actually to wind
up her affairs. She need not take permanent residence again. SC
reversed the findings and decision of COMELEC. So those are the
discussion on residence or domicile.
c. Synchronized Term of Office
ABUNDO vs. COMELEC
688 SCRA 149 (2013)
Although it was in local election, the rules may be applicable with
respect to term limitation. Term limitation has been instituted as part
of qualification and disqualification of office, to ensure that there will
be no concentration of power. To give so-called new blood to
politics, to those who will govern.
The rule before in this case of ALDOVINO vs. COMELEC (2009),
there was only one rule saying that if the interruption is voluntary, it
will not be considered for purposes of term limitation. Meaning, if it is
voluntary, it is supposed to be counted, but if it is involuntary, should
it be counted? For example you are suspended, should it be
counted? It should be counted as well.
In 2013, in the case of ABUNDO, SC collated all the decisions on
successive terms and came up with these rules.
1. On succession, if say, a public official succeeded to a
higher position, of course this does not apply to Congress,
that period of time for that higher position, is not
considered as part of the term.
So if a Vice Mayor succeeds to the Mayor because of the remainder
of the term, that will not be counted as first term for mayor.
Conversely, the same, because the Vice Mayor succeeded to the
position for Mayor, that term for which he was elected as vice mayor
should not be counted for the purpose of term limitation.
This follows now basically, the rule of elected and fully served.
1. If the person is not elected though fully served, not
counted as term. Or, conversely, if he has been elected
but not fully served, not also counted.
For example, if a member of Congress has won, a person has won
for a position in Congress or lower house, an election protest was
filed against that person, that person lost. So he was replaced. Will
that be counted as his term? No. That has happened to Ms. Lucy
Torres-Gomez. The person of the protestant won in the election
contest, though he was elected eventually because he won the
election contest, did not full serve the three year term. So also, not
counted.
BANAT vs. COMELEC
586 SCRA 210 (2009)
The ruling in party list, before that case of Banat vs. COMELEC,
party list representatives in Congress will only be able to have a seat
if they get that 2% threshold but Banat in 2009 changed it all. In the
elections of 2007, there were other party lists which did not reach
the 2% threshold, but because the SC has to fill all 20% of the seats
even if you only have 150,000 votes, you get one seat, so they were
able to have one representative.
So those parties who were able to benefit from the Banat ruling, had
the same representatives from 2009 up to today because the 2007
up to 2010, not counted, they only count the 2010, 2013 and 2016.
So if that protestant won, so the one sitting is unseated, that will not
be counted for the protestant and the protestant, because they have
not been elected and fully served, as the case may be.
This case of conversion of LGU, this happened in Digos. If you are a
3-term mayor of a municipality and the municipality, on your 3rd term
is converted into a city, can you run as first mayor for that city? The
SC said no, because it is the same LGU, the same constituency
actually.
This case of ALDOVINO vs. COMELEC (2009), on preventive
suspension, it is not considered a term interrupting event. Therefore,
it is still considered as part.
There is another peculiar case. In that case, a protest which may be
applicable in the Senate and House of Representatives, if a protest
is filed, but the protest was decided after the protestee has fully
served the term, that term will be considered as the full term of the
protestee, even if the decision is to unseat, because after the
expiration of the full duration of the term, he was elected and he has
served, so it will be counted.
Unlike in those earlier examples, we said, that if one has been
unseated in the middle of the term, that should not be counted for
either. But if the situation is that the protestee has lost after the term
has been fully served, that term shall be counted for the purpose of
term limitation.
August 2, 2018 – Ria Lumapas
 Apportionment / Districts
The Constitution states that there shall be one representative per
district and each city which has a population of 250 shall have one
representative. There is also to re-apportion the districts based on
increase in population. This is to achieve equality in representation.
ALDABA vs. COMELEC
611 SCRA 137 (2009)
615 SCRA 564 (2010)
The reapportionment based on population must not be on an
election year to determine whether there is a need to increase
legislative districts as well as add more for purposes of
representation.
For provinces there is no requirement of population per se, unlike
cities the constitution says there is a 250 requirement for population
to be entitled to one. However the Local Government Code requires
that for a territory to be created into a province there must have to
be either:
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1. [now] 100 million income plus 2000 sq. kms; or
2. 250 thousand in population plus 100 million in income.
So, if requirement is established based on income and area, there is
no need to establish the 250 thousand for it to have one district.
NAVARRO vs. ERMITA
612 SCRA 131 (2009)
The requirement of continuous land of 2000 sq. km. cannot be
applied if it is an island province.
This is referring to the Dinagat Province in Surigao. With respect to
increase in population leading to additional districts, the first 250 is
mandatory, the next 250 is not.
That was based on Mariano vs. COMELEC involving Makati, as well
as the case of Aquino vs. COMELEC. For Makati to add additional
districts in the city, the first 250 was declared to be mandatory, the
next 250 was not strictly complied with but almost near to 250.
In the case of provinces if there as increase of population leading to
500 thousand or 750 thousand, there can be additional districts
provided it is nearer to the 250 thousand mark, it may not exactly be
250 thousand for an additional district.
 Party List System
The case of ATONG PAGLAUM, INC. vs. COMELEC (2013),
practically changed the guidelines which was established in the
earlier case of Ang Bagong Bayani as to who or which party can
participate in the party list system while the sectors that could not
participate remain by law, the Atong Paglaum redefined thru your
Associate Justice Carpio which party can now participate.
ATONG PAGLAUM, INC. vs. COMELEC
694 SCRA 477 (2013)
There can be a national, regional or sectoral party. Only a sectoral
party representing those sectors; and the sectors can either be,
marginalized and underrepresented or those lacking in well-defined
constituencies.
Also redefined based on these guidelines would be the membership
of the sectors for sectoral parties because of the issues before
wherein members of affluent political families are nominees of
sectoral parties representing marginalized sectors.
So the question is, can the son of a sitting president represent as the
number 1 nominee of a party representing security guards?
The Supreme Court said that there is no need that a nominee must
belong to that sector because what is required now is they must
have a track record of advocacy respecting that sector, need not
belong in that sector.
ABANG LIGKOD vs. COMELEC
708 SCRA 133 (2013)
The party itself need not have a track record provided that at least
one nominee has a track record of advocacy in the sector the party
seeks to represent.
ANAD vs. COMELEC
705 SCRA 340 (2013)
This case mandates that the submission of the list of 5 nominees is
a mandatory requirement. Failure to submit within the period set by
law of the list of 5 nominees with acceptance will affect the
qualification or inclusion of that party in the party list election.
The reason why it has to be so is because the public has to be made
aware who are the nominees because while the theory is that we
elect parties in the party-list system based on the interest, largely it
would still be based on personality.
So if your number 1 nominee is a handsome guy perhaps or a
beautiful lady then we vote for that party, not because of the track
record of advocacy. Mao man ng mga Pilipino, basta gwapo gani
daog dayun. Makaluluoy kaayo ang mga bati ug nawong.
The other reason there, I think, that the law seeks to prohibit is the
replacement or substitution of nominees without or outside the
allowance of the law or by COMELEC, because the names
appearing should be the names of succession or order of
succession should there be a vacancy in the seat assigned to that
party. So to prevent any unauthorized substitution of nominees
these names must have to be submitted and thereafter published.
Now the case of LICO vs. COMELEC (2015) has something to do
with the jurisdiction of the electoral tribunal and the COMELEC with
respect to party-list system election.
The rule of thumb there is if it affects the person who sits in
congress, any issue involving him even if it is framed as a party
issue, it has to be with the electoral tribunal because it affects a
member of the lower house.
LICO vs. COMELEC
771 SCRA 596 (2015)
This was supposed to be an issue of party disloyalty. The party
wanted to remove him as he was already removed from the party
membership. They wanted to remove him from the House where he
was already sitting.
ISSUE: Which has jurisdiction: the Electoral Tribunal or COMELEC?
RULING: It is the electoral tribunal although the issue seems to be
intra-party, but because it affects his seat in congress then the issue
involves a member of the House of Representatives, it is the
electoral tribunal.
So, if it is a nominee not sitting in the House of Representatives the
issue is with COMELEC. If the issue is qualification or inclusion of a
party, it is with the COMELEC, not the electoral tribunal because a
party never sits in congress, only the nominee.
2. Election
Election, there’s nothing much to it. Even the law on special
elections. It will tell you there’s a period where a special election
cannot be called, can be called if it is outside of that period before
the next regular election. But for all purposes the calling of a special
election would still depend on the House where the vacancy exists.
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a. Regular Election
Article VI, Section 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.
b. Special Election
Article VI, Section 9. In case of vacancy in the Senate or in the
House of 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.
Article IX-C, Section 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.
3. Salaries, Privileges and Disqualifications
a. Salaries
Article VI, Section 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.
Thing to remember about salaries is the prohibition on increase. As
mentioned, it would only take effect after the expiration of the full
term of the members of that congress approving the increase. A law
may be passed but it can never take effect during that time.
b. Freedom from Arrest
Article VI, Section 11. A Senator or Member of the House of
Representatives shall, in all offenses punishable by not more than
six years imprisonment, be privileged from arrest while the Congress
is in session. 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.
Freedom from arrest and speech and debate clause, are two of the
more important privileges members of congress have. This is to
ensure continued democratic representation, to allow them to
reasonably or effectively discharge the functions of their office.
Under the freedom of arrest it is for offenses where the penalty does
not go more than six (6) years and that it is claimable while congress
is in session.
In the 1973 Constitution, it was while going to attend the session,
attending and coming from a session. Under the present, it is for the
entire duration of the regular session regardless of whether that
member is going to, attending in or coming from a session.
The regular session starts every 4th Monday of July until the
mandatory 30-day adjournment from the opening of the next regular
session exclusive of Saturdays, Sundays and legal holidays.
c. Speech and Debate Clause
They shall not be held liable in any other place for any speech and
debate done in congress or in any committee thereof. They can be
held liable in congress though but not outside of congress by
declaring them to have violated the rules on discipline of that
particular house.
d. Disqualifications
Members of Congress do not have specific disqualifications, except
for these two: incompatible and forbidden office.
1. Incompatible and Forbidden Offices
Article VI, Section 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. 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.
Incompatible office can be taken but must have to waive or give his
seat in congress. Example is Representative, now Secretary, Mark
Villar. Immediately after election, took his oath and thereafter
appointed to the cabinet.
Forbidden office, on the other hand, is an office which was created
when that person was a member of congress which cannot be taken
even if that member is willing to forfeit his seat in congress.
2. Other Prohibitions
Article VI, Section 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.
Article XI, Section 16. No loan, guaranty, or other form of financial
accommodation for any business purpose may be granted, directly
or indirectly, by any government-owned or controlled bank or
financial institution to the President, the Vice-President, the
Members of the Cabinet, the Congress, the Supreme Court, and the
Constitutional Commissions, the Ombudsman, or to any firm or
entity in which they have controlling interest, during their tenure.
The other disqualifications basically are of financial interest which a
member of congress is using his influence as a member of
congress. If a contract is entered into above ground which is not
basically granted by reason of his being a member of congress, that
is not prohibited.
The exercise of profession for members of congress is technically
not prohibited except that for lawyers there’s a strict limitation that
they could not appear in courts or tribunals, but for any other kind of
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practice it is not prohibited. Although the Code of Professional
Responsibility would tell you that there must have to be some
indication that if you are not allowed by your office to practice it must
so be indicated.
The duty to disclose applicable to members of congress are those
relating to authorship of a bill which could possibly be in conflict with
their interest. The other which is the disclosure requirement under
existing laws, you have to submit your SALN.
e. Duty to Disclose
Article XI, Section 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.
Article VI, Section 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.
Article VI, Section 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 for each Member.
4. Internal Government of Congress
a. Election of Officers
Article VI, Section 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.
Now in federal system of government, election of officers, now we
have a similar problem this time because of the re-organization of
the lower house. And apparently, yesterday speaker GMA
recognized Rep. Danilo Suarez as the minority leader still. Farinas
was ousted and threatened that he will bring the case in court. He
contended that if you have voted for GMA as speaker then you could
not be in the minority. Perhaps he forgot the case of SANTIAGO vs.
GUINGONA (1998).
SANTIAGO vs. GUINGONA
298 SCRA 756 (1998)
This was the election of the Senate President, but still election of
officers. 10 senators from the majority Laban ng Masang Pilipino
(LAMP), 7 was from Lakas-NUCD, there was 1,1,1,1,1 from other
parties and 2 independents, Santiago et al. Voting was 20-2-2 for
Senate President; 20 that included the 10 from majority, 7 from
Lakas-NUCD, the 3 from other parties, etc.
The question now is who shall lead the minority. Teofisto Guingona
was part of the 7 from Lakas-NUCD voted for the Senate President
and he was elected as minority leader. Santiago brought the case to
the SC.
Supreme Court discussed the concept of majority and minority.
When you speak of majority, it is the party which has the most
number of members. In this case 10 from LAMP, all the rest would
be minority parties. Any one from the minority parties can be the
minority leader.
What about the argument of Santiago that if you voted for the
president or in the case of GMA, the speaker, then you should be
considered part of the majority.
The SC discussed what majority is in relation to voting. When there
is voting or election, majority means plurality; he who has the most
number of votes. It is not 50% plus 1. There is no violation of the
Constitution because the latter only requires election of Senate
President and Speaker of the House. All the rest are based on the
rules respecting the particular house.
So even if they want to vote for Sgt.-at-arms, prince charming,
muse, you cannot go and say that is unconstitutional. Yes it is not
there, but it is also not prohibited.
b. Quorum
Article VI, Section 16.
xxx
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.
Quorum refers to the minimum number required for each house to
have to conduct business.
AVELINO vs. CUENCO
83 PHIL 17 (1949)
ISSUE: From which number do we base our quorum?
There are situations where not all 24 seats in the senate are filled. In
this case, one was not in the Philippines while the other 23 were
here. Supreme Court said you only consider the 23 and not the 24
because one was not around and could not be reached by the
processes.
To do business you need a quorum, a number lower than the
quorum can do either of these acts with legal consequences to
adjourn and compel the attendance, order the arrest of members to
compel their attendance in sessions.
With respect to quorum and voting majority, here is a rundown:
ACTS OF CONGRESS VOTING MAJORITY
Election of Officers Majority vote
To suspend or expel a member 2/3 vote
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d. Discipline of Members
To discipline a member with less Majority vote
than suspension or expulsion Article VI, Section 16.

To declare the existence of a 2/3 vote in joint session, voting xxx

state of war
To grant emergency powers to
the President
Choosing a President in case of
a tie with Congress acting as the
canvassing body
separately
3. Each House may determine the rules of its proceedings, punish
Majority vote its Members for disorderly behavior, and, with the concurrence
of two-thirds of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty
Majority vote in a joint session, days.
voting separately
What is disorderly behavior?

To decide the President’s
temporary disability, if contested
Confirming choice of Vice-
President in case of vacancy
To review the exercise of
Commander-in-Chief powers of
the President
2/3 vote in a joint session, voting
separately
Majority vote of both Houses,
voting separately
Majority vote of both Houses,
joint voting
That depends on the house which would provide for the rules on
how to discipline their members. The question that is always asked
is can the SC by judicial interpretation declare a rule on discipline as
grave abuse of discretion amounting to lack or excess of jurisdiction.
There’s yet to be a decision by the SC on that matter. What the SC
has ruled upon is on the imposed penalty of suspension. The
suspension now is limited to sixty (60) days; whereas, before there
was no limitation.

To concur in amnesty
To concur a treaty by the Senate
To amend or revise the
Constitution by Constituent
Assembly
To amend or revise the
Constitution by Constitutional
Convention
Simple majority vote The discussion in an old case was that unlike in expulsion, while the
constituents may have no representation for the moment because
2/3 vote there is a vacancy there is a possibility of an election, the
constituents will have a new representative. If it is by suspension the
3/4 vote in a joint session, voting member remains a member although the constituents have no
separately representation.
The reason why if it is prolonged the damage is not really to the
2/3 vote, voting separately; or by member himself but to the constituents, the SC can correct if the
majority vote in a joint session, period is too long. And as mentioned earlier, it has to require a vote
voting separately of 2/3.

c. Rules of Proceedings
Article VI, Section 16.
3. Each House may determine the rules of its proceedings, punish
its Members for disorderly behavior, and, with the concurrence
of two-thirds of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty
days.
Article VI, 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.
Two cases, the case of Baterina vs. Singson (1992) and Delgado vs.
Pichay (2016).
BATERINA vs. SINGSON
Rep. Singson was arrested in Hongkong for possession of prohibited
drugs. He was arrested, prosecuted, charged, imprisoned and
served jail time. During his imprisonment there was an issue as to
his membership in the congress because he was a sitting member
thereof.
But because he had a lot of buddies in congress he was not
removed for “disorderly behavior”. And then the term of office ended,
he ran again for the same seat. Baterina filed a protest arguing that
he is disqualified having been convicted of a crime.

Section 21 is a special rule on inquiries in aid of legislation. There is
a requirement for publication of the rules. Legislative discretion
respecting the rules required as part of the due process protection,
that if the rule applied affects persons not members of congress they
must have to be published but those internal to them need not be
published.
It is quite specific. It must have to be published. Without publication
there can be no inquiries in aid of legislation. When the Constitution
says it must have to be published, each numbered congress must
have to publish their own rules. Meaning, if you say 15th Congress,
the 16th Congress cannot just take it as their own rules without
publishing it as their own.
The SC said that while he was convicted, conviction of a crime need
not carry disqualification because it was not a crime involving moral
turpitude.
DELGADO vs. PICHAY
Rep. Pichay was charged with libel and found guilty and there was a
question on his qualification.
SC said libel is a crime which involves moral turpitude and so, Rep.
Pichay was disqualified.

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So do not libel any person, just use drugs. Kasi walang moral
turpitude ang drugs. SC said it’s not selling, pero kung gamit2x lang,
pwede ka pa rin tumakbong presidente, senator or congressman.
e. Journal and Congressional Records
Article VI, Section 16.
xxx
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.
These are official documents required by the Constitution to be had
by both houses. So they are the official repository of proceedings.
Journal reflects normally the salient portions of legislation.
Which prevails, the journal entry or the enrolled bill?
The journal entry is an official document and is supposed to be
conclusive as to the matters written therein. What time did congress
start session, members present, whether there is a quorum, time
adjourned, what matters taken, discussion, bills. If there is an issue
what the bill provides, should the journal entry be examined and
prevail over what has been indicated in the enrolled bill? We all
know that the enrolled bill is that bill submitted to the president in a
procedure what we know as bill presentment.
By the way I was told by someone who knows about the
Bangsamoro Organic Law that the bill presented to the president did
not contain the signature of the speaker.
The question is what is the effect if the enrolled bill does not contain
one of the signatures of the responsible officers? The bill requires
the authentication of the responsible officers of both houses
indicating that this was the approved version of both houses.
And as we all know there was the change in the leadership in the
lower house because that bill was supposed to have been signed in
the morning to be included in the SONA in the afternoon. But
because they were so busy trying to oust Pantaleon they forgot all
about it. I don’t know whether they corrected it. I suppose it was
already signed by the new speaker.
In all matters which the constitution requires that must have to be
entered in the journal, the journal prevails: how was the voting,
which votes won, the yes or the no, who was present, was there a
quorum.
But if the question involves the provisions of a bill it must have to be
the enrolled bill because that is the approved version which is
eventually presented to the president and therefore that is
conclusive as to the words and phrases of provisions as found
therein.
5. Sessions
a. Regular Sessions
Article VI, Section 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. The President may call a special
session at any time.
Article VI, Section 16.
xxx
5. Neither House during the sessions of the Congress shall, without
the consent of the other, adjourn for more than three days, nor to
any other place than that in which the two Houses shall be sitting.
GUEVARA vs. INOCENTES
16 SCRA 379 (1966)
This is just a case involving that rule that because Congress is a
bicameral body, Congress cannot function if only one house is
functioning. The Constitution requires that If one house is adjourned
the other house must have to inform the other house. There is this
protocol that both must have to function.
If you are familiar with legislative work they even have a common
calendar so that they will know when to have vacations, recess
because constitutionally both houses must have to be functioning.
b. Special sessions
Article VI, Section 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. The President may call a special
session at any time.
Article VII, Section 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 V1 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 V1 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.
Article VII, Section 11. Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits
to them a written declaration to the contrary, such powers and duties
shall be discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to
the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice-President
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shall immediately assume the powers and duties of the office as
Acting President.
Thereafter, when the President transmits to the President of the
Senate and to the Speaker of the House of Representatives his
written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all
the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of
Representatives, their written declaration that the President is
unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
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.
Article VII, Section 18.
xxx
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.
Those situations call for special sessions although the constitution
also states that they can also call special sessions anytime. That
should not literally be understood but only in those occasions where
congress is not in regular session.
However in the context of congress calling for a session to tackle
any other business, that can be a special session that can be called
at any other time. If it is not in the legislative calendar but there is a
need to tackle a new matter then congress can call for a special
session and that is what is meant by calling a special session at any
other time.
c. Joint sessions
The only discussion here is on the manner of voting. Because of the
bicameral nature, the presumption is that even in joint session,
voting shall always be separate. Otherwise, 24 Senators will always
be out-voted by now almost 300 members of the House of
Representatives.
Unless the constitution states that voting shall be joint, the
presumption is that voting shall be separate vote. Each house will
carry the same weight respecting their votes regardless of the
number of members.
The martial law declaration or suspension of writ of habeas corpus is
the constitution requiring that voting shall be joint. In all other
matters it is silent and therefore the presumption is separate in order
to put a balance on the weight of the vote of each house.
August 7, 2018 – Jennifer Mortejo
6. Electoral Tribunal
Article VI, Section 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 system
represented therein. The senior Justice in the Electoral Tribunal
shall be its Chairman.
Article VI, Section 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 are herein conferred
upon it.
a. Composition
There shall be what we refer to as, legislative component and the
judicial component – There are 3 members of the Supreme Court
and 6 members of the House to which the electoral tribunal
belongs.
b. Nature of Function
It is exercising quasi-judicial function and by this reason, it is
supposed to be the sole judge of all contests relating to elections,
returns and qualifications of the respective branch. It has been ruled
in several cases that members of the Electoral Tribunal representing
the legislative component sit as Judges with security of tenure. They
cannot be removed by their party just because of party disloyalty
arising from a decision which is contrary to their party list. When they
sit in the Electoral Tribunal, they will be nominated by the party
because of proportional representation. They will act solely based on
the facts and merits of the case.
They can be removed by the party for some legal grounds, even
party disloyalty, except when the cause of the party disloyalty is that
voting against a party’s interest in the elections contest pending
before it.
What is included in the “elections, returns and qualifications”?
BARBERS vs. COMELEC
460 SCRA 569 (2009)
Election referred to the conduct of the polls, including the listing of
voters, the holding of the electoral campaign, and the casting and
counting of the votes;
Returns to the canvass of the returns and the proclamation of the
winners, including questions concerning the composition of the
board of canvassers and the authenticity of the election returns; and
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Qualifications to matters that could be raised in a quo warranto
proceeding against the proclaimed winner, such as his disloyalty or
ineligibility or the inadequacy of his certificate of candidacy.
Is there a pre-proclamation controversy cases for national
positions? There’s none.
Is Congress a local or national position?
(Wala naghatag ug answer si Sir.)
 Jurisdiction
The jurisdiction of the Electoral Tribunal invariably before the case of
Reyes vs. COMELEC (2013), which was asked in the 2014 Bar
Exams, only requires a proclamation, an oath and the term of office
must have started or commenced (meaning, starting at noon of June
30 following the day of elections). So there’s a timeline determined
any of these issues while it may have been initially filed or instituted
with the COMELEC, as soon as that person becomes a Member of
the House, jurisdiction will now lie with the Electoral Tribunal.
In 2013, in the case of REYES vs. COMELEC (2013), the Supreme
Court changed it by qualifying proclamation. Proclamation must
have to be valid. So that if there’s a prior question still pending on
the proclamation of a person, he is not yet deemed to be a member
of the House concerned. Therefore, the issue may still be
entertained by the COMELEC until there’s a final resolution of the
case. In this case of Reyes, the issue on disqualification was raised
before the Supreme Court and was decided accordingly. The
petitioner failed to ask for any remedy thereafter thinking that
because she had won in the elections, she would now be a Member.
But because of issue of the validity of the proclamation, having been
previously disqualified in a final decision, the Supreme Court said
there was no valid proclamation. She remained to be a non-Member
of the House of Representatives. Of course it helps that the
protestant in the case was the son of a sitting Justice in the
Supreme Court, Justice Presbitero Velasco.
c. Independence of the Electoral Tribunal
As mentioned earlier, because they sit as Judges, they enjoy such
security of tenure.
d. Powers
e. Judicial Review of Decisions of Electoral Tribunals
For so long as the Electoral Tribunal has decided the case within the
limited jurisdiction it has, its decisions are considered final. But
under judicial review, if there is grave abuse of discretion, it shall be
subject to review by the Supreme Court.
7. Commission on Appointments
Article VI, Section 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 vote of all the Members.
Article VI, Section 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 are herein conferred
upon it.
 Composition
- 24 members
- The 25th member is the Senate President who shall
preside but will not vote unless there is a tie.
- The 12-12 from each House shall be filled out based
on proportional representation.
Basically, the Commission on Appointments performs executive
function although they are composed of members of Congress. They
are in relation to the check and balance principle on the appointing
powers of the President.
They have power to reject or confirm appointments made by the
President under the 1st paragraph of Section 16 of Article VII:
Article VII, Section 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 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 list is exclusive. Congress cannot, by legislation, provide for an
additional qualification for CA confirmation unless it falls under the
1st sentence of Section 16:
1. Heads of Executive Departments
2. Ambassadors
3. Other public ministers and consuls
4. Officers of the armed forces from the rank of colonel or naval
captain, and
5. Other officers whose appointments are vested in him in this
Constitution
Parts of that list of those appointed by him are the party-list
representatives for the first 3 terms under the 1987 Constitution,
which has long been abandoned because of the Party List System
Election Act.
 Other matters with respect to Commission on
Appointments (CA) are:
1. Extent of Powers
Can it reject any appointment made by the President?
Of course it can.
Conversely, can it approve also or confirm all appointments
made by the President because they are of the same party
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affiliation? Asking the question, is the decision of the CA to 8. Power of Congress

confirm or reject an appointment subject to judicial review?
If by rejection or rejecting an appointment or nomination made by
the Executive, there’s hardly any issue on grave abuse because it
has the power to reject.
But what about if it is to confirm? If there is no other legal or
constitutional provision violated in confirming a nomination made,
there could be no issue on judicial review. But if there is a legal or
constitutional qualification required and yet despite its want or lack
thereof, the CA confirm the nomination, it may be a grave abuse of
discretion and be subjected to judicial review.
A. General Plenary Powers
Article VI, Section 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.
Subject to the substantive limitations which are all provided in the
Bill of Rights and some other specific provisions in the Constitution
(1) Substantive Limitations

If you remember there was a recent issue on citizenship of Perfecto (a) Express Substantive Limitations
Yasay and eventually, his nomination was rejected. Assuming there
was an issue on whether or not he is still a Filipino citizen yet his  Article III (Bill of Rights)
nomination was confirmed, then it could be subjected to judicial  Article VI, Sections 25 and 28
review because that could be in grave abuse of discretion. But if the  Article XIV, Section 4(3)
qualification is based on what your President has said, “the best and  Article VI, Section 29
the brightest” even if it’s Mocha Uson (LOL), that cannot be
subjected to judicial review because it is very subjective. It is a (b) Implied Substantive Limitations
subjective non-legal standard unlike age, residence or citizenship,
these are legal standards. 1. Prohibition against delegation of legislative power

What is being exercised by the Congress is already a delegated

If a nomination is by-passed, there is no limitation on the executive
power and so the Congress cannot delegate it further, unless
making another nomination because to by-pass a nomination is
allowed, subject to the usual tests of an allowable delegation which
simply not acting on it with Congress taking a recess to adjourn. The
are the following:
CA only performs or is going to exercise its functions when
Congress is in session. Therefore, if the Congress is not in session,
a. Completeness of Statute
the CA is also not functioning. If the nomination submitted to the CA
b. Sufficiency of Standards
is not acted and Congress is in recess or adjourned, the nomination
is deemed by-passed.
The Sufficiency of Standards Test is being used more now
because Congress has not been enacting too many laws completely
The President can make a re-nomination up to whenever he likes
on its terms once it has been delegated.
but when the CA rejects a nomination, that’s the end for that person
for that specific position. He can be nominated in other positions
Most of the examples on the Doctrine of Non-Delegation would be
because his rejection by the CA was for a particular position as he
in the legislative power. But we all know that this doctrine applies to
has been nominated for. He was not rejected for being himself but
all of the other powers of Congress. Executive Power cannot be
only for his appointment or nomination for that position.
delegated unless allowed and the allowance is under the Doctrine of
Qualified Political Agency. Judicial Power cannot also be delegated
2. Concept of Ad Interim or Recess Appointments
although by system, it is exercised by one Supreme Court and such
other lower courts as may be provided for by law. In which case,
This is technically referring to appointments requiring CA
there is a “delegation” to the lowest courts subject to final review of
confirmation made while Congress is not in session or when the CA
the Supreme Court in appropriate cases.
is not functioning. If the appointment does not need CA confirmation
because it does not fall in the first sentence of Section 16 of Article
 Subordinate Legislation
VII and made during recess, it is not an ad interim appointment.
The distinction is important for purposes of the efficacy of the
It is the rule-making power when Congress exercises legislative
appointment:
power and delegates the formulation of rules and regulations to
implement the provisions of existing law. The limitations are the
a. An appointment without requiring CA confirmation,
following:
which is made while Congress is in session, is
effective upon acceptance. And even if there is any
a. The rules and regulations must not be contrary to the
action taken thereafter, provided it has been accepted, it is
Constitution;
considered effective.
b. Must not be contrary to the law; and
c. Must be within the terms of the delegated authority.
b. In an ad interim appointments, strictly, it is still
subject to CA confirmation later. While it is valid for the
The sufficiency of standards test is normally used. It is not required
moment because Congress is not functioning and CA is
however that all the standards are set in one law. It is allowable that
not able to function too, the CA can eventually act on it
several laws on the same subject matter will provide for several
and reject the nomination made.
standards and which all standards taken altogether, may be
considered as sufficient to provide for such rules and regulations.

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There are two types of rule-making power which are delegated to
administrative agencies:
1. Supplementary rule-making power
o To fill up the details of the law or its enforcement
2. Contingency rule-making power
o The power of the delegate to ascertain facts to bring
in to law its actual operation. It is not simply filling it
up but there’s a discretion granted to ascertain
certain facts to make the law operative.
 Exceptions to Non-Delegation Doctrine
a. Delegation to the President
This refers to flexible tariff clause under Section 28 (2) and
emergency powers provision under Section 23 (2) of Article VI:
Article VI, Section 23. (1) The Congress, by a vote of two-thirds of
both Houses in joint session 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.
Article VI, Section 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 the People
Article VI, Section 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
therefor signed by at least ten 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
thereof.
There is a question in relation to Section 1 of Article VI, whether that
is delegated authority, because it states that:
Section 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.
There is a reservation for the People when they exercise initiative
and referendum because the origin of legislative power would be the
sovereign people. However, under the last section of Article VI (as
cited above), there is a need for Congress to legislate for the People
to exercise initiative and referendum or power to legislate under
initiative and referendum. In which case, it is deemed ti be delegated
because unless there is a law allowing such exercise of legislative
powers seemingly reserved to the People under Section 1, it could
not be exercised and so Congress had to enact.
Republic Act 6735 provides for rule on initiative. Actually, it should
be rules on initiative or referendum because the term initiative
suggests that the intent or the motive to legislate comes from the
proponents which would be the people. The referendum, on the
other hand, is supposed to be coming from the State subjecting a
question or proposition to the electorate whether or not they will
accept a proposed legislation. The people can exercise initiative;
they can only respond to a referendum. If there is no proposition
submitted by the State to them, they will never be able to exercise
referendum.
RA 6735 provides for certain requirements on representation or
percentages on who can initiate but largely, it will tell us that initiative
must come from the electorate and there’s a requirement of 10% of
the total number of the registered voters, of which every legislative
district is represented by at least three per centum (3%) of the
registered voters thereof if it is a national statute. If it’s a local
legislation, there’s a minimum requirement for the number of
electorate to initiate them from barangay, municipal, city, province,
including the ARMM.
What the law requires is for the petitioners to make the proposal in
full and this will be submitted to the electorate for their confirmation
by signatures. The COMELEC is supposed to task to verify the
authenticity of the signatures including the compliance of the
required number of electorates, whether by number of by
percentage. After which, there will be an electoral exercise to be
made in order for the rest to accept its propositions.
2. Prohibition against passage of irrepealable laws
(2) Procedural Limitation
Article VI, Section 26.
1. Every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof.
2. No bill passed by either House shall become a law unless it has
passed three readings on separate days, and printed copies
thereof in its final form have been distributed to its Members
three days before its passage, except when the President
certifies to the necessity of its immediate enactment to meet a
public calamity or emergency. Upon the last reading of a bill, no
amendment thereto shall be allowed, and the vote thereon shall
be taken immediately thereafter, and the yeas and nays
entered in the Journal.
Article VI, Section 27.
1. Every bill passed by the Congress shall, before it becomes a
law, be presented to the President. If he approves the same he
shall sign it; otherwise, he shall veto it and return the same with
his objections to the House where it originated, which shall
enter the objections at large in its Journal and proceed to
reconsider it. If, after such reconsideration, two-thirds of all the
Members of such House shall agree to pass the bill, it shall be
sent, together with the objections, to the other House by which
it shall likewise be reconsidered, and if approved by two-thirds
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of all the Members of that House, it shall become a law. In all
such cases, the votes of each House shall be determined by
yeas or nays, and the names of the Members voting for or
against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it
originated within thirty days after the date of receipt thereof,
otherwise, it shall become a law as if he had signed it.
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.
We follow the 3-3-3 rule; 3 readings on 3 separate days and there
shall be printed copies submitted at least 3 days before the 3 rd and
final reading.
We understand that each bill will be processed in each House
following that rule. 1st and 2nd readings are the most important
because it is where the discussions are made. The 3rd reading is
reserved for voting, there shall be no other discussions allowed.
Under our journal entry rule, the votes of the 3rd and final reading
are supposed to be entered in the journal. Once it is approved in one
House, it will be forwarded to the other House for their own
deliberations. It shall pass the same rule on 3-3-3 in the other
House, after which if so approved, the bill will be certified and it is
referred to as an enrolled bill which will be presented to the
President under the process of bill enrollment for his action whether
to approve, to veto or to sit on it.
The other issue there is, if the bill is certified as urgent, can the
Houses of Congress do away with the procedural limitations?
3 readings cannot be dispensed with. It can be dispensed on
separate days. The 1st reading can be done now, discussed
thereafter and vote thereafter. It need not be on separate days.
Should printed copies be had before the 3rd and final reading?
There’s one case I remember which says that the printing is also
exempt. I did not include it in your outline because while the intent of
the ruling is correct, it cannot be dispensed with because what is
there to submit to the other House for consideration. It need not be
submitted at least 3 days before but there must have to be printed
copies of the final draft as approved by the House in order for it to be
forwarded to the other House for its consideration. The certification
of urgency of the bill does not therefore exempt the need to have a
printed copy of the final draft of the bill.
B. Question Hour
Article VI, Section 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.
C. Legislative Investigations
Article VI, 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.
These are part of what is referred to as Oversight Functions of
Congress. There are 3 oversight functions of Congress:
1. Scrutiny
This is usually where question hour would fall and the usual form of
legislative scrutiny is the budget hearings; when members of the
Heads of the different offices of the Government are asked or
“investigated” during budget hearings. Heads of the departments
and offices must have to explain to Congress why they are asking
for such an appropriation for that year. And it’s an opportune time for
members of Congress to determine what that office is doing and
what that office is intending to do with its requested appropriation.
That applies to ALL offices and officers in Government.
For question hour however, it has limited application because it
refers only to Heads of the Executive Department. The Constitution
requires that there must have to be prior consent of the President
and there must have to be written questions submitted to the Heads
before they appear so that they will be ready with their answers.
Although interpellations are not required to be submitted earlier in
written form for obvious reasons.
2. Legislative Inquiry
Inquiry in aid of legislation
3. Legislative Supervision
This usually comes in the form of provisions in legislation providing
for oversight committee. Do not confuse legislative supervision with
inward-turning legislation.
In the case of ABAKADA vs. Purisima, the concept of legislative
supervision strictly speaking, which is allowable, refers to the
oversight function of Congress to make sure that the provisions of
the law are implemented properly.
A good example of an oversight committee, in relation to the
legislative supervision powers of Congress, is the Absentee Voters
Act. If you try to read the law, there’s a provision there establishing
the oversight committee composed of members of both Houses.
Every time there is an election, members of Congress will convene
in an oversight committee and they will travel all over the world
where there are Filipino voters to ensure there is proper voting of
Filipinos abroad who are still entitled to vote. That is the extent of
legislative supervision that is allowed as opposed to inward-turning
legislation.
Inward-turning legislation refers to the delegation of a power by
Congress which will entitle eventually Congress the power to decide
whether the exercise of delegated authority is allowable or not. For
example if it is rule-making power, Congress cannot delegate the
rule-making power to an administrative body or officer but withholds
its efficacy upon its prior approval. Once the power is delegated, it is
supposed to be complete and full. The rules and regulations to be
made by the delegate can be questioned only before the Courts, not
with the prior approval of the Congress.
If you remember the PDAF cases, part of its discussion was inward-
turning legislation; for while Congress has approved the General
Appropriations Act (GAA) providing for a lump-sum amount or
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PDAF, the individual members of Congress were given specific
authority under that law or provision in the GAA to determine which
project shall be funded and for how much each project shall be
funded. Once the law is passed by Congress, its implementation
should be in the Executive, it should not be made dependent upon
prior approval of Congress. That is an example of inward-turning
legislation that is not allowed.
Now as opposed to inquiry in aid of legislation or legislative
investigation, any person can be subjected to the subpoena powers
of the Congress for any inquiry in aid of legislation. What the
Constitution provides however is that all persons appearing thereby,
their rights shall have to be respected. And most of the rights that
are applicable and claimable are the bill of rights, especially the
privilege against self-incrimination under Section 17 of Article III.
Are they entitled to right to counsel?
Since it is not an “investigation” for a criminal case, strictly under
Section 12 of Article III, the right to counsel is not a claimable right.
Although you have seen this in a lot if inquiries in aid of legislation or
legislative inquiries, persons appearing there or required to appear
have brought their counsels. But if you also notice, their counsels
are not allowed to talk because while they are made to fill up the
attendance sheet, they are not recognized. They are not invited
there as such counsel. Of course, they are allowed to confirm with
their clients who are invited in the inquiries in aid of legislation.
It is also required that the rules affecting the conduct of these
inquiries in aid of legislation must have to be published. Each
numbered Congress must have to publish its own Rules of
Procedure, including proceedings in inquiries in aid of legislation.
The other cases there, the case of SENATE vs. ERMITA (2006) and
GUDANI vs. SENGA (2006), highlights the distinction between
question hour and inquiries in aid of legislation respecting members
of the executive family and of the military (in the case of Gudani).
GUDANI vs. SENGA
498 SCRA 671 (2006)
Can members of the Executive family be called instead in
inquiries in aid of legislation and not in question hour?
YES. They may be Heads of Executive Departments but if they are
called not in relation strictly to the operations and administration of
their respective departments, they can be called in inquiries in aid of
legislation.
What about military officers? Can the President prevent military
officers and the listed personnel from testifying in inquiries in
aid of legislation?
YES. Not because they enjoy some kind of exception to the rule. It is
because of the concept of discipline in the military. As Commander-
in-Chief, the President has control over them. And if the
Commander-in-Chief would order them not to appear, they must
have to comply. And the Congress cannot skirt the matter of
discipline that the Commander-in-Chief imposes upon the
subordinate officials and the rest of the command.
In NERI vs. SENATE COMMITTEES (2008), the Supreme Court
emphasizes the concept of executive privilege.
NERI vs. SENATE COMMITTEES
577 SCRA 170 (2008)
For while members of the Executive family may be investigated
either in question or inquiries in aid of legislation and they cannot
refuse simply because they are members of the Executive family,
they can refuse to answer a question which would fall for a violation
of the executive privilege rule.
We understand that the executive privilege comes in two forms: the
Presidential communications privilege and the deliberative
process privilege. The latter privilege refers to generally the
privilege granted to all government offices and decisions. While the
former refers to the process by which a Presidential decision has
been arrived at. Only the Presidential communications privilege is
covered by the executive privilege rule.
Based on that old case of US vs. Nixon, executive privilege is not
found in our Constitution in express provision. But it has been
considered to be existing because there are certain matters which its
publication is kept in order to allow a free discussion of ideas to
come up with a decision. The freedom to right of information of the
public will only refer to the final outcome or decision. But how the
decision is arrived at, it may be covered by some privilege.
An example would be for the Supreme Court, the deliberations in
collegiate courts. What we are made aware of would be the
conclusions reached by the Court because we are furnished a copy
of the decision, the decision is published. But how the Court
deliberated on it as required by our Constitution, we don’t know
unless the Justice would tell on how the SC voted on it or discussed
it before the Court even has come out with the final decision. But
that is more of an exception. So, there are matters by which there is
a need to protect the secrecy of certain deliberations, except that the
public is entitled to the result of the deliberations.
The Presidential communications privilege follows the proximity rule.
Every person who has been in proximity to the President in coming
up with the decision would be covered by the privilege. That’s why in
this case of Neri, even if he is not the President and he is not
technically a Cabinet Secretary of the Government, but because he
is the NEDA Head, he is in the cluster, the questions asked of him
were considered to be covered by the executive privilege. He is not
supposed to be compelled to answer all questions.
There was a recent case which involves the hazing of Castillo of
UST, the decision came out early August last week, the case of
Balag vs. Senate of the Philippines et.al. (G.R. No. 234608, July
3, 2018). In an En Banc decision, the Supreme Court modified the
power of the Senate or of Congress to cite a person in contempt for
refusing to comply with the subpoena issued in inquiry in aid of
legislation.
In the old cases of Arnault vs. Balagtas and Arnault vs. Nazareno,
the Supreme Court said that the person cited for contumacious
behavior can be cited in contempt and placed in detention until he
complies with the order of the investigating body. In the case of
Balag, the head of the fraternity who was one of those charged
raised the issue of his detention, the Supreme Court modified the
power to detain by saying that the power to detain will have to be
consistent with the continuation of the probe or investigation. It’s a
different play if the investigation has been terminated; there is no
more reason to detain further any person who refused to testify in
that investigation because the investigation has been concluded.
That person must have to be released from detention.
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August 9, 2018 – Glorybelle Resurreccion
D. Act as Board of Canvassers for the Presidential and Vice-
Presidential Elections
Art. VII, Section 4, par. 4. xxx
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province 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 the election,
open all certificates in the presence of the Senate and the 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 the votes.
E. Call Special Elections for President and Vice-President
Article VII, Section 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.
F. Revoke or extend the suspension of the privilege of the writ
of habeas corpus and declaration of martial law
Article VII, Section 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 any 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 of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or
directly connected with the invasion.
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.
LAGMAN vs. EXECUTIVE SECRETARY
(July 4, 2017)
The Supreme Court had the occasion to revisit the decision earlier in
the case of Fortun vs. Macapagal-Arroyo. The aspect with respect to
the power of Congress over that of the President. The Fortun ruling
will tell you that it is a shared power between the President and
Congress.
In Lagman case, the SC clarified that there is no need for a prior
approval when the President declares a martial law or suspends the
privilege of the writ of habeas corpus. It is based on the assessment
of the executive whether or not there is sufficient factual basis to
declare martial law or suspend the privilege of the writ of habeas
corpus.
Congress, on the other hand, has the power to revoke such
declaration or the suspension made, whether the President shall
make a report in person or through his representatives. And while
the Supreme Court has the power over any petition to test the
sufficiency of the factual bases, only insofar as the facts are present
at the time the declaration is made. Congress is allowed to consider
facts thereafter whether to revoke or allow the declaration or
suspension to continue.
SC, again, is limited on all facts during and up to the time the
declaration is made while Congress can consider facts EVEN
AFTER such declaration. And as shown in the declaration of martial
law here in Mindanao, it is a political determination. While there is
authority of Congress to exercise to determine the sufficiency of the
factual basis, it is largely also a political consideration and it is not
surprising because Congress is part of the political branch of the
government.
From FT: “After all, the Court's review is confined to the sufficiency,
not accuracy, of the information at hand during the declaration or
suspension; subsequent events do not have any bearing insofar as
the Court's review is concerned. In any event, safeguards under
Section 18, Article VII of the Constitution are in place to cover such a
situation, e.g., the martial law period is good only for 60 days;
Congress may choose to revoke it even immediately after the
proclamation is made; and, this Court may investigate the factual
background of the declaration.”
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G. Approve Presidential Amnesties
Article VII, Section 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.
This is part of the para___ powers of the President. The President
can declare or grant an amnesty provided there is a favourable
concurrence with the Congress.
H. Confirm Certain Appointments
Article VII, Section 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 confirmation by a majority vote of all the Members
of both Houses of the Congress, voting separately.
Article VII, Section 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 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 the Congress, whether voluntary or compulsory, but
such appointments shall be effective only until after
disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
I have mentioned this power on the discussion on Commission on
Appointments.
I. Concur in Treaties
Article VII, Section 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.
CF:
Article XVIII, Section 25. 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.
Now with respect to treaty negotiations, Pimentel vs. Executive
Secretary (July 6, 2005) tells you that there are four stages in treaty
making:
 First Stage: Negotiation
 Second Stage: Authentication
 Third Stage: Ratification
 Fourth Stage: Exchange of ratified documents
The exchange determines the efficacy of the treaty signed.
PIMENTEL vs. EXECUTIVE SECRETARY
(July 6, 2005)
A ratification, normally, would require concurrence of another branch
or another office of the contracting state. In the case of Pimentel, it is
a mandamus petition to compel the executive to submit the signed
treaty after authentication for submission to the Senate for
concurrence as required under the Constitution. The Senate,
headed by Sen. President Pimentel, argued that it is considered to
be mandatory for the Office of the President to submit a treaty
already signed for the concurrence or ratification by the Senate.
SC clarified, however, that in the in the stages or phases of treaty
making, even after the President of the contracting state has ratified
the treaty, the President is not mandated to make it effective. And so
the Office of the President cannot be compelled to submit a signed
treaty for concurrence. Of course, if it isn’t concurred, it could not be
going to the fourth stage, which is the exchange of ratified
documents.
Treaty making is part of the foreign policy powers of the President.
And that is largely executive. While the Constitution declares or
provides that there must have to be Senate concurrence before it
can be considered effective, that is not a mandate for the President
to submit all treaties signed by him or negotiated with the executive
with other contracting states for concurrence because the President
would still have control over its efficacy. So, the mandamus petition
is lost.
Art. XVII Sec. 25 (on Transitory Provisions), simply provides an
alternative mode of ratifying a treaty. It need not be directly by the
Senate but it could be by the action of the electorate.
SAGUISAG vs. OCHOA (2016) is a case on the EDCA. The
question raised was whether there is a need for Senate concurrence
because it was a treaty or whether it is just an executive agreement
where no Senate concurrence is required.
And in that short decision, SC ruled that it is an executive
agreement. It is not a treaty. The treaty is the Visiting Forces
Agreement when you already allowed the presence of foreign
military troops and facilities in the country on the visiting status.
The EDCA is just an agreement or document which necessarily
arranges the details on the implementation of the VFA. It did not
grant more than what the VFA has already granted or allowed. So,
no need for Senate concurrence.
J. Declaration of War and Delegation of Emergency Powers
Article VI, Section 23. (1) The Congress, by a vote of two-thirds of
both Houses in joint session 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
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withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.
We have always mentioned that this is normally distinguished from
Commander-in-Chief powers of the President. We said that Sec. 23
is a constitutional example of valid delegation. In times of war or
national emergency, delegated legislative power can be granted to
the President. It is allowable in order for the President to meet the
necessity of legislating “on account of national emergency or on
account of war.” Because of the perceived delay in legislative
deliberations, the President can be granted such delegated
authority.
Commander-in-Chief clause is an inherent power. Sec. 18, Art.
VII is a limitation rather than a grant. Sec. 23(2), Art. VI, on the other
hand, is a delegated authority. The parameters on “sufficiency of
standards” are all provided there –
 it must be authorized by law,
 it must be for a limited period,
 it must be necessary to carry out a declared national
policy.
And it is effective when Congress withdraws it by resolution or until
the next voluntary adjournment of Congress supposing that the
emergency is no longer a hindrance to proper legislation because
Congress could already convene and adjourn on its own volition. As
to the efficacy of the declaration of martial law or suspension of
privilege of writ of habeas corpus, your mnemonic/memory aid there
is PCSO –
 President lifts it
 Congress revokes it
 Supreme Court nullifies it, or
 By operation of Law
Those are when the Commander-in-Chief powers are deemed no
longer effective.
K. Be the judge of the President’s physical fitness or capacity
Article VII, Section 11, par. 4. xxx
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 the President;
otherwise, the President shall continue exercising the powers and
duties of his office. xxx
This is just a mode of voting. We have made mention of it already –
if it is contested, meaning if the President does not accept that he is
temporarily incapacitated, Congress will convene, if not in session,
with a [deed of poll?], and shall decide the issue on temporary
incapacity.
When the 1987 Constitution was drafted and made effective in 1987,
we have not yet seen the light of technology. That is why, at that
time, the context was the President could not effectively run the
government physically because either he is sick, physically unable
or perhaps physically not present.
But as technology has developed, we have seen even if the
President is outside of the country, by reason of technology, he can
actually run the government. And so the question is, is there a
temporary incapacity? Of course, the answer is no. One of the most
recent exercises of executive power which was exercised outside of
the Philippine jurisdiction is the declaration of the martial law in
Mindanao. It was declared in Russia. And because of technology,
we were made to submit to the executive issuance that martial law
was indeed declared and it is still effective.
L. Power of Impeachment
1. Who are subject to impeachment?
Article XI, Section 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 of public trust. All other public officers and
employees may be removed from office as provided by law, but not
by impeachment.
The list is exclusive:
1. President and Vice-President
2. Justices of the Supreme Court
3. Members of the Constitutional Commission
4. Ombudsman
The grounds are also exclusive: [TBC-GOB]
1. Treason
2. Bribery
3. Culpable violation of the Constitution
4. Graft and corruption
5. Other high crimes
6. Betrayal of public trust
Three are defined by law: treason, bribery and graft and corruption.
The rest are not yet defined. But betrayal of public trust as a ground
has already been defined in the two cases of GONZALES vs.
OFFICE OF THE PRESIDENT (2012 and 2014). It is short of a
crime but there is a betrayal of that trust in the public office.
GONZALES vs. OFFICE OF THE PRESIDENT
678 SCRA 614 (2012)
714 SCRA 611 (2014)
The catch-all phrase betrayal of public trust that referred to "all acts
not punishable by statutes as penal offenses but, nonetheless,
render the officer unfit to continue in office" could be easily
utilized for every conceivable misconduct or negligence in office.
In the 2012 decision, the SC said that the Deputies (there are
several deputies in the Ombudsman - the Overall Deputy and the
three other Deputies) are subject to the powers of discipline of the
President.
The 2014 decision on a motion for reconsideration reversed its
earlier ruling where the SC still upheld that the Special Prosecutor is
still under the office of the executive for discipline but this time the
Deputies are no longer. The reasoning is the same – independence
of the Ombudsman.
The reason why the Ombudsman is independent from the powers of
discipline of the executive is to shield it from political influence. To
allow it to exercise its powers, to investigate on misfeasance or
malfeasance in government, it should not be made subject to the
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powers of the executive. For if the Deputies are so subject to such
powers, then they may not be able to act and perform their functions
well because the Ombudsman himself/herself is not expected to act
on everything.
The Ombudsman acts through the Deputies and so Deputies are
shielded as well. But while the executive cannot discipline them, and
they are not impeachable officers, the Ombudsman must discipline
them if they have committed any violation. And if the Ombudsman
will not discipline them despite clear violations, then the
Ombudsman opens himself/herself to impeachment proceeding.
That is how the discipline should work.
Recently you might have read that Overall Deputy Ombudsman
Melchor Arthur Carandang has been dismissed on the service by
Malacanang. And the newly appointed Ombudsman is going to
impose the decision. The question is: Is that contrary to the
Gonzalez ruling? By reading, it seems to be. By what we heard,
Malacanang wants the doctrine revisited. That is why they want
Carandang to eventually raise it before the Supreme Court. In the
meantime, what happens to him, he has to be dismissed from the
service.
What is interesting to note from the newly-appointed Ombudsman
Samuel Martires is he used to be part of the Supreme Court. And yet
when asked on interview if he is going to impose it, he said that he is
going to then let Carandang question the same before SC. So the
presumption now is this – that the Malacanang was correct and the
SC was wrong in Gonzales. We all know that until a decision is
reversed by the SC en banc, a court decision stands and everybody
should follow what the law is.
In Carpio-Morales vs. CA (2015) on the Aguinaldo doctrine on Binay,
was Binay suspended because of the non-application of the
Aguinaldo ruling? No, he was not. Ombudsman followed it and said
“Aguinaldo may be applicable but we are questioning it.” And so the
SC in Carpio-Morales vs. CA reversed the Aguinaldo ruling.
Meaning, we follow what the rule is for the moment and until
reversed by the SC; we should comply with the decision no matter
how we view it as erroneous. But we are in a different time in the
Duterte presidency.
2. Grounds for Impeachment
Article XI, Section 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 of public trust. All other public officers and
employees may be removed from office as provided by law, but not
by impeachment.
3. Procedure for Impeachment
Article XI, Section 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 a
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.
(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.
Procedure did not change as much. Still the initiation is in the lower
house. The trial/hearing is in the House of Senate. The Senate
President presides.
There are other collateral matters which could have been issues for
resolution which have remained unclear. It started during the time of
the Erap impeachment. Is there a right of an official/respondent to
cross-examine witnesses against the respondent-official during the
initiation stage?
That question remained even during the Sereno impeachment
proceeding because they have wanted to cross-examine the
witnesses in the initiation stage before them. But all their motions
and requests have been denied and none of them has raised the
issue to the SC. No problem during the trial because there is cross-
examination allowed. And this has been allowed even during the
Estrada impeachment proceedings.
Now if you are to liken it to an ordinary preliminary investigation
under Rule 112 of the Rules of Court, the conclusion reached would
be the same. In preliminary investigation, there is no right to cross-
examine witnesses. What one can do if he/she is a respondent in a
criminal case is to submit counter-availing evidence. If they
(complainants) have affidavits of their own witnesses, the
respondent could also submit affidavits of his own witnesses. But as
to cross-examination, at best, in a preliminary investigation what is
conducted as a form of trial is what we know as clarificatory hearing.
And in Rule 112, clarificatory hearing is for the purpose not of the
parties but of the investigating officer. All questions are to be
coursed through and asked by the investigating officer for the officer
to be enlightened on or clarified on certain matters not clear to him
similar with the initiation in the House of Representatives.
In the recent Sereno impeachment, there were “hearings” conducted
in the lower house. And the camp of Sereno was complaining why
they were not able to cross-examine or was not granted the right to
ask questions on the witnesses for the complainant. But rightfully so
because it is similar or akin to just a preliminary hearing to determine
whether there is a need to proceed to the trial for the impeachment
case.
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If the required vote is not reached during the initiation, complaint can
be initiated directly by a member of the lower house or by any
person with a favourable resolution of a lower house member. If
there is no vote as required by the Constitution, it should be
processed in the regular course submitted to the plenary for its
calendar. It would be referred to the appropriate committee – the
Committee on Good Government and Justice which will study it,
conduct hearings perhaps, and come up with a report. The report is
actually the decision whether to proceed with the impeachment by
coming up with an impeachment complaint or a decision to dismiss
the complaint by resolving so.
Any action of the committee shall be presented to the body for voting
for approval or rejection as the case may be. If impeachment is to
proceed, it will then be forwarded to the House of Senate. The rules
on impeachment in the House of Senate are theirs. And they have to
be published because generally rules of Congress which affect third
parties must have to be published as part of “due process”. They
should be taken with [change?] but we follow the elementary rule of
fair notice, hearing and trial.
4. Consequence of Impeachment
Article XI, Section 3.
xxx
(7) Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution, trial, and
punishment according to law.
A required vote of 2/3 must have to be met for the conviction. If a
respondent public officer is convicted, the decision cannot go
beyond removal and perpetual disqualification. The impeachment
court, so to speak, the House of Senate is neither a criminal court
which can impose penalties of imprisonment nor a civil court which
can impose payment of damages. However, the public official who is
deemed removed or impeached after the vote of the Senate can
now be opened to any and all kinds of cases including criminal
cases.
There is a rule on ban for the same public officer to be subject of
impeachment. (1) Either we follow the so-called one-year ban which
follows the so-called filing and referral rule. It is not the fact of filing
of one complaint that determines the one-year ban to run. It is the
fact that the complaint so filed has been referred to the lower house
for consideration. In actual terms, it has been calendared.
So even if there are 100 complaints filed by different persons with
favourable recommendation by a member of the lower house
against one impeachable officer; but none of them has been
calendared as yet in the lower house, the one-year ban will NOT
commence to run. But once one of these complaints has been
calendared in the lower house for the consideration of the plenary,
then the one-year ban commences to run.
(2) The other is when the respondent ____ the Senate is not found
liable because of the failure to meet the required 2/3 of votes. In
which case, there will be a ban on the filing of a similar complaint
whether in the lower house or for any criminal cases arising thereof.
M. Power with Regard to the Utilization of Natural Resources
Article XII, Section 2. All 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. With the
exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State.
The State may directly undertake such activities, or it may enter into
co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least 60 per
centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such
terms and conditions as may provided by law. In cases of water
rights for irrigation, water supply, fisheries, or industrial uses other
than the development of waterpower, beneficial use may be the
measure and limit of the grant.
The State shall protect the nations marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming,
with priority to subsistence fishermen and fish workers in rivers,
lakes, bays, and lagoons.
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 provided 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.
9. Legislative Process
a. Requirements as to Bills
(1) As to Titles of Bills
Article VI, Section 26.
(1) Every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof.
Nothing changed there. The subject matter of the bill must be
indicated in the title. And the title must only be for one subject. The
reason is for purposes of information:
1. To avoid log-rolling legislation (to include other unrelated
matters which are not indicated in the title which is
indicative of the subject matter);
2. To inform the legislators on what the intended legislation
is; and
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3. To inform the public as to what the subject matter of the
intended legislation is so that they could be heard on it if
they would want to.
PHILIPPINE JUDGES ASSOCIATION vs. PRADO
227 SCRA 703 (1993)
We consider first the objection based on Article VI, Sec. 26(l), of the
Constitution providing that "Every bill passed by the Congress shall
embrace only one subject which shall be expressed in the title
thereof."
The purposes of this rule are:
(1) to prevent hodge-podge or "log-rolling" legislation;
(2) to prevent surprise or fraud upon the legislature by means
of provisions in bills of which the title gives no intimation, and which
might therefore be overlooked and carelessly and unintentionally
adopted; and
(3) to fairly apprise the people, through such publication of
legislative proceedings as is usually made, of the subject of
legislation that is being considered, in order that they may have
opportunity of being heard thereon, by petition or otherwise, if they
shall so desire
(2) Requirements as to Certain Laws
 Origin of Bills
a) Appropriation of Laws
Article VII, Section 22. The President shall submit to the Congress
within thirty days from the opening of every regular session, as the
basis of the general appropriations bill, a budget of expenditures and
sources of financing, including receipts from existing and proposed
revenue measures.
Article VI, Section 24. 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 of
Representatives, but the Senate may propose or concur with
amendments.
Section 25. (1) The Congress may not increase the appropriations
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.
(2) No provision or enactment shall be embraced 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.
(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 proposed 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.
The only discussion in origin of bill is:
Q: Can similar types of bills be introduced in the House of Senate
even without it receiving the approved version of the lower house?
Revenue or tariff appropriationbills authorizing increase of the public
debt, bills of local application, and private bills – can said versions
be filed even if there is yet to be an approved version of the lower
house submitted to it (House of Senate)?
A: YES. What is prohibited is for the House of Senate to
process its own version without receiving first the approved
version of the lower house. So, filing is not prohibited. Processing it
is what is prohibited.
And even if the bill must originate from the lower house, the House
of Senate is not precluded from passing a totally different version of
the bill. Say an expanded-expanded value added tax bill from the
lower house [has in it] 22 items and the Senate version’s items on
the expanded-expanded value added tax are only 10. That is
allowed because the origin is a limitation of where it should come
from based on the representation. It is deemed to be by theory that
the lower house is more representative unlike the Senate which is
on national scale and there are only 24 of them.
 On Appropriation of Laws
Sec. 25 (2) defines what a provision in an appropriations bill is. In
very simple terms, it is a provision providing for a specific sum of
money for a specific expenditure. In the case of BELGICA vs.
OCHOA (2013), the SC made an enumeration on what these so-
called item/s are in an appropriations bill.
Item may be:
1. singular appropriation which is called “line-item”;
2. based on component percentages;
3. based on several related purposes or accounting
purposes. e.g. MOOE (maintenance and other operating
expenses);
4. special purpose funds or singular correspondence
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BELGICA vs. OCHOA
710 SCRA 1 (2013)
(1) It is significant to point out that an item of appropriation must be
an item characterized by singular correspondence – meaning an
allocation of a specified singular amount for a specified singular
purpose, otherwise known as a "line-item." This treatment not only
allows the item to be consistent with its definition as a "specific
appropriation of money" but also ensures that the President may
discernibly veto the same. Based on the foregoing formulation, the
existing Calamity Fund, Contingent Fund and the Intelligence Fund,
being appropriations which state a specified amount for a specific
purpose, would then be considered as "line- item" appropriations
which are rightfully subject to item veto.
(2) Likewise, it must be observed that an appropriation may be
validly apportioned into component percentages or values;
however, it is crucial that each percentage or value must be
allocated for its own corresponding purpose for such component to
be considered as a proper line-item.
(3) Moreover, as Justice Carpio correctly pointed out, a valid
appropriation may even have several related purposes that are by
accounting and budgeting practice considered as one purpose,
e.g., MOOE (maintenance and other operating expenses), in which
case the related purposes shall be deemed sufficiently specific for
the exercise of the President‘s item veto power.
(4) Finally, special purpose funds and discretionary funds would
equally square with the constitutional mechanism of item-veto for as
long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that
Section 25(4), Article VI of the 1987 Constitution requires that the
"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 t o be raised by a
corresponding revenue proposal therein." Meanwhile, with respect to
discretionary funds, Section 2 5(6), Article VI of the 1987
Constitution requires that said funds "shall be disbursed only for
public purposes to be supported by appropriate vouchers and
subject to such guidelines as may be prescribed by law."
Any other provision not relating to any of these four are not
provisions supposedly to be included in an appropriations bill. In all
decisions, it is referred to as inappropriate provision. And in the
doctrine of appropriate provision, these provisions can be
removed from an appropriations bill because they are not supposed
to be there to begin with.
Now if the appropriations provision does not relate to any of those
four, then they can be removed technically or it can be vetoed by the
President. In the case of Belgica (on the PDAF), the item on PDAF
according to the SC was a lump-sum appropriation. It did not provide
for a singular correspondence, not a line-item, it was not even for
accounting purposes. It was just a sum of money. And it allowed,
after the passage of the General Appropriations Act, the individual
members of Congress a specific amount out of that P 24.78B and
from that specific amount, members of the Congress individually can
determine which are to be funded by them and which of the [P54M?]
each shall be used for those expenditures. And the SC referred to it
as intermediate appropriation. And that intermediate appropriation
is not allowed. When Congress enacts a bill like an appropriations
bill, it is complete when it leaves Congress. Its implementation is left
with the executive. In the case of PDAF, what has been approved by
Congress is a lump-sum amount and the specific implementation is
left to the individual members of Congress. That should not be
allowed because members of Congress are not to implement but
only to pass and legislate.
With respect to ARAULLO vs. AQUINO III (2014 and 2015), in
relation to Sec. 25, there is the transfer of funds. When Congress
enacts an appropriations bill which eventually becomes a law, it is
the authorization for government expenditure. Government officials
and offices must therefore have to spend the appropriation or budget
for the purposes which the Congress has allowed.
So, when government funds appropriated for a particular item is
spent for personal use that is misappropriation of public funds. If it is
used for another public purpose that would be considered as
technical malversation for while there is no personal gain, there is
still damage to the State because it has not been used for the public
purpose that Congress intended it to be.
Transfer of funds is NOT allowed. That is the general rule. The
exception however, as provided in the Constitution is that there must
have to be a law allowing such transfer of funds. The Constitution
would allow the heads of offices to transfer of funds. As listed: the
President, the Chief Justice, the Heads of the Constitutional
Commissions, both houses of Congress as well.
It is also required that there must have to be savings. And before
any of these savings can be transferred… it can only be transferred
from an appropriated item to another appropriated item…it could
not…well the SC said the term augment is to enlarge what has been
allowed by Congress. It cannot be used therefore to fund something
which has not been allowed by Congress. And savings can [come?]
because are there three situations contemplated as listed in Araullo
case:
1. When a project is completed and there are savings after
full completion or there is a decision to terminate or cease
the project for valid reasons;
2. If there are savings because of efficient delivery (balances
arising from unpaid compensation and related costs
pertaining to vacant positions and leaves of absence
without pay);
3. Balances realized from the implementation of measures
resulting in improved systems and efficiencies
ARAULLO vs. AQUINO III
728 SCRA 1 (2014)
749 SCRA 283 (2015) (MR)
Savings refer to portions or balances of any programmed
appropriation in this Act free from any obligation or encumbrance
which are:
(i) still available after the completion or final discontinuance or
abandonment of the work, activity or purpose for which the
appropriation is authorized;
(ii) from appropriations balances arising from unpaid compensation
and related costs pertaining to vacant positions and leaves of
absence without pay; and
(iii) from appropriations balances realized from the implementation of
measures resulting in improved systems and efficiencies and thus
enabled agencies to meet and deliver the required or planned
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targets, programs and services approved in this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a
sure indication that savings could be generated only upon the
purpose of the appropriation being fulfilled, or upon the need for the
appropriation being no longer existent.
Only when any of these eventualities occur can there be savings.
There is no such thing as forced savings. Forced savings can come
“if the executive does what is referred to as executive
impoundment.” The executive impoundment is the practice of the
executive not to release appropriations for whatever reason. That is
not supposed to be the reason for any savings.
And if there are savings which is used to augment, it can be used
only within the same department. The SC came up again with a term
“cross-border transfer” or “cross-border augmentation” which
is not allowed. The executive can transfer funds within the executive
department. The executive cannot transfer funds to other branches
of the government. In the story of the PDAF or DAP, there was a
transfer of certain amounts to Senator Drilon to fund the completion
of the Ilo-ilo Convention Center. So can the savings in the executive
branch be transferred to the legislative branch? That is supposed to
be not allowable.
b) Tax Laws
Article VI, Section 28. (1) The rule of taxation shall be uniform and
equitable. The Congress shall evolve a progressive system of
taxation.
(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.
(4) No law granting any tax exemption shall be passed without the
concurrence of a majority of all the Members of the Congress.
Article XIV, Section 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.
(4) Subject to conditions prescribed by law, all grants, endowments,
donations, or contributions used actually, directly, and exclusively for
educational purposes shall be exempt from tax.
b. Procedure for Passage of Bills
Article VI, Section 26. (2) No bill passed by either House shall
become a law unless it has passed three readings on separate days,
and printed copies thereof in its final form have been distributed to
its Members three days before its passage, except when the
President certifies to the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of a bill,
no amendment thereto shall be allowed, and the vote thereon shall
be taken immediately thereafter, and the yeas and nays entered in
the Journal.
c. President’s Veto Power
Article VI, Section 27. (1) Every bill passed by the Congress shall,
before it becomes a law, be presented to the President. If he
approves the same, he shall sign it; otherwise, he shall veto it and
return the same with his objections to the House where it originated,
which shall enter the objections at large in its Journal and proceed to
reconsider it. If, after such reconsideration, two-thirds of all the
Members of such House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the
Members of that House, it shall become a law. In all such cases, the
votes of each House shall be determined by yeas or nays, and the
names of the Members voting for or against shall be entered in its
Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt
thereof; otherwise, it shall become a law as if he had signed it.
(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.
With respect to the veto power, we still follow the GR on “veto all or
none at all.” That is for ordinary bills. The problem is with revenue
appropriation or tariff bills because item veto is allowed. It is allowed
in order not to hold the executive a hostage for agreeing to a
revenue or tariff appropriations bill which is not acceptable with the
thought that the delivery of public service will be affected. Imagine if
there is a bad general appropriations bill submitted to the President
(on money or item wise) and he is not allowed an item veto, then
there will be no new budget for the government next year or the
President will be forced to accept a bad appropriations bill. Hence,
the President is allowed to line-item veto.
In LINE-ITEM VETO, while the President is allowed to veto certain
portions/“provisions on an appropriations revenue or tariff bill”, the
President cannot be allowed to veto a portion of an item or a line-
item. If, say an expenditure is conditioned on something, the
President cannot just veto or delete the condition and let the item or
amount of money or the project remain because Congress has
allowed the expenditure, money, or project because of a condition to
be [fulfilled?]. The condition is part of the entire line-item. So, in
revenue or tariff appropriations bill, while item veto is allowed,
President must still follow the rule that it should veto the entire
line-item or none at all. The President cannot nitpick and just veto
some words, provisions, conditions, especially in an appropriation on
revenue or tariff.
In one old case, there was appropriation in the GAA (General
Appropriations Act) for retirement fund. And those supposed to be
entitled are a list of public officers. What the President did was he
removed certain public officers in the listing. SC said that it is not an
allowable line-item veto because what was allowed by Congress is
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the fund for retirement for these public officers. What the President
can do it to delete the entire fund because that is the line item or that
is the item in the appropriation.
Final item on veto, on how to override a veto, the procedure
remained the same. It requires the vote of 2/3 of each house which
shall be allowed to re-pass a bill vetoed by the President.
The President has 30 days from bill presentment to act on the bill. If
the enrolled bill is not acted by the President within 30 days from
such enrolment, the bill becomes a law even without the President’s
signature.
The other time that the bill becomes a law without the President’s
signature is when a bill previously vetoed by the President is re-
passed successfully by both houses of the Congress.
POCKET VETO
In the U.S., while they still follow the rule that if the President vetoes
a bill, it must return the bill to the Congress. However, in their
jurisdiction, if the Congress is not session, the President cannot
therefore return the bill. So what happens to the bill if it has not been
returned because of recess and the period to return has lapsed? In
the U.S., there is a pocket veto. Because of the vacuum, it is
deemed to be vetoed because of the legal impossibility to return it as
Congress is not in session.
Q: Is there a pocket veto in the Philippines?
A: NO. It should be returned WON Congress is in session. If
Congress isn’t in session but it is still returned, it is deemed vetoed
provided the bill as vetoed must have with it the veto message of the
President. And such veto message must be entered in the journal as
required in the Constitution.
d. Effectivity of Laws
Article 2, Civil Code. Laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette or
in a newspaper of general circulation in the Philippines, unless it is
otherwise provided. This Code shall take effect one year after such
publication (as amended by E.O. No. 200).
10. Initiative and Referendum
August 14, 2018 – Therese Candolita
B. EXECUTIVE DEPARTMENT
1. The President
a. Qualifications, election, term and oath
Article VII, Section 2. No person may be elected President unless
he is a natural-born citizen of the Philippines, a registered voter, able
to read and write, at least forty years of age on the day of the
election, and a resident of the Philippines for at least ten years
immediately preceding such election.
Article VII, Section 4. The President and the Vice-President shall
be elected by direct vote of the people for a term of six years which
shall begin at noon on the thirtieth day of June next following the day
of the election and shall end at noon of the same date, six years
thereafter. The President shall not be eligible for any re-election. No
person who has succeeded as President and has served as such for
more than four years shall be qualified for election to the same office
at any time.
No Vice-President shall serve for more than two successive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of the service for the
full term for which he was elected.
Unless otherwise provided by law, the regular election for President
and Vice-President shall be held on the second Monday of May.
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province 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 the election,
open all the certificates in the presence of the Senate and the 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 the votes.
The person 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, one of them shall forthwith be chosen by the vote
of a majority of all the Members of both Houses of the Congress,
voting separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the
purpose.
Article VII, Section 5. Before they enter on the execution of their
office, the President, the Vice-President, or the Acting President
shall take the following oath or affirmation:
"I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice-President or
Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. So help me God." (In
case of affirmation, last sentence will be omitted.)
b. Privileges and Salary
Article VII, Section 6. The President shall have an official
residence. The salaries of the President and Vice-President shall be
determined by law and shall not be decreased during their tenure.
No increase in said compensation shall take effect until after the
expiration of the term of the incumbent during which such increase
was approved. They shall not receive during their tenure any other
emolument from the Government or any other source.
There is a prohibition on both increase and decrease in salary during
the term. As they said, “maliit ang sweldo, malaki ang sahod”. The
lower house has refused to discuss the budget for next year
because of the increase in amount plus the fact that release for
budget has not been accepted in the lower house.
 Other Privileges
Official residence is Malacañang. The reason for the official
residence being: grants the president residence for purposes of
public expenditure. The president can actually maintain any other
residence, what is important is that the expense for running that
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residence is covered. For a while, we all know that former president
Aquino held office in a different place other than the Malacañang.
 Presidential Immunity
The so-called Presidential Communication Privilege, which allows
non-disclosure of any info which may have lead to the decision
making of the president. The decision itself may be made public, but
how it was reached is beyond the claim of right to information
covered by the presidential privilege. And any person who is in
proximity when the president reached such decision will have to be
covered by that presidential privilege as well. The question there
is: Is the decision to commit a crime covered by that privilege?
To put in another perspective: Is that decision of the American
president to wage war in Syria covered by the executive privilege?
Or can the communication be exposed by a court process or by
Congress? To be made public as to who made or proposed the
decision to wage war elsewhere. To wage war is a matter of
perspective whether it’s a crime or not. Definitely, the old case of US
vs. Nixon (The Watergate Scandal), the order to commit a crime is
not covered.
US vs. NIXON
It is admitted that it is not provided for in the Constitution expressly.
But because of the fact that the President has the power to ensure
that the laws are fully implemented, it is supposed to be, on that
account that when the President is to decide on a matter or of
course on the action to be taken, there are certain matters which the
President may not be compelled by legislative inquiry or judicial
proceedings or any form of investigation to make any public
disclosures of those fact. The Supreme Court divided however this
concept of executive privilege and we made mention of this already.
If it is objectively committing a crime—not covered. BUT if there is a
gray line between the policy to eradicate the drug problem or in the
case of insurgency, that may be covered by the executive privilege.
 Deliberative Process Privilege
The case of DFA vs. BCDA (2016) involved deliberative process
privilege, the process by which other government agencies or
officers would reach a decision. The privilege is supposed to be not
absolute, it can be claimed in a limited sense only. This case will tell
you what is covered by the entire process. It mentions of
recommendations, advisory opinions, draft documents, proposals,
suggestions, and other subjective documents and similar papers that
reflect the opinion of the agency or the government. Covered by
deliberative process privilege and could be applied to presidential
privilege communications as well. Any of those leading to the
president to come up with a decision is covered by that privilege. In
this case is a subpoena issue that required the production of certain
documents leading to the arbitration case and the SC held that the
matters or documents sought to be made public was covered by the
privilege and therefore could not be made public. Even if a decision
is reached, only the decisions can be made public.
 Policy basis:
1. To protect candid discussions
2. To protect public confusion from premature
disclosure of conclusions
3. To protect decision or conclusion reached
 Immunity from suit
A sitting president is immune from all kinds of cases, regardless of
whether it could effectively remove him from office. As an
impeachable officer, the premise is that the president is immune
from any case which will effectively remove him from office before he
is impeached. So as president per se--- immune from suit, any and
all kinds. Immunity is claimable after term if it was the result of an
official act. To prevent the president from fearing to do an act during
his term because of possibility that he will be subjected to a case
thereafter.
The Vienna Convention on Diplomatic Relations tells us that the
president as head of state is also immune absolutely from the laws
of those countries so when he travels he is immune from the laws of
the receiving state. In the 2012 case of Saez vs. GMA, it was held
that a sitting president cannot move to dismiss a petition for Writ of
Amparo because the writ is not a criminal, civil or administrative
case the purpose of which is to establish responsibility and
accountability on the enforced disappearance of persons or
extrajudicial killings. A sitting president is not allowed to move for its
dismissal just because he is immune from suit.
SAEZ vs. GMA
681 SCRA 686 (2012)
ISSUE: WON the President should be immediately dropped as
respondent on the ground of her immunity from suit.
RULING: NO. The President cannot be automatically dropped as a
respondent pursuant to the Doctrine of Command Responsibility.
The president, being the commander-in-chief of all armed forces,
necessarily possesses control over the military that qualifies him as
a superior within the purview of the command responsibility doctrine.
Philippine National Police and other Law Enforcement Agencies
(E.O. 226). Under E.O. 226,a government official may be held liable
for neglect of duty under the doctrine of command responsibility if he
has knowledge that a crime or offense shall be committed, is being
committed, or has been committed by his subordinates, or by others
within his area of responsibility and, despite such knowledge, he did
not take preventive or corrective action either before, during, or
immediately after its commission. Knowledge of the commission
of irregularities, crimes or offenses is presumed when(a) the acts are
widespread within the government official’s area of jurisdiction; (b)
the acts have been repeatedly or regularly committed within his area
of responsibility; or (c) members of his immediate staff or office
personnel are involved. Pursuant to the doctrine of command
responsibility, the President, as the Commander-in-Chief of
the AFP, can be held liable for affront against the petitioner’s rights
to life, liberty and security as long as substantial evidence exist to
show that he or she had exhibited involvement in or can be imputed
with knowledge of the violations, or had failed to exercise necessary
and reasonable diligence in conducting the necessary investigations
required under the rules.
c. Prohibitions
Article VII, Section 13. The President, Vice-President, the Members
of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure,
directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any
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subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their
office.
The spouse and relatives by consanguinity or affinity within the
fourth civil degree of the President shall not, during his tenure, be
appointed as Members of the Constitutional Commissions, or the
Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-
owned or controlled corporations and their subsidiaries.
The most prominent is with respect to the holding of another office
while being member of executive family. This is similarly related to
members of congress that they could not have any incompatible
office. The vice-president as member of cabinet, secretary of justice
as member of JBC---- by reason of the primary functions of their
office is allowed to perform other tasks. Importantly, these ex-officio
member positions they hold are also not paid additionally because
the work done is covered by their primary office.
d. Succession
Nothing has changed there, the only thing to remember is that when
permanent vacancy occurs in both offices of the president and vice-
president before the beginning of term or during term, the
succession rules provide for the senate president, if he is willing and
able, and if not, the speaker of the house. But if beginning of term,
congress must enact a law as to the process of selecting as to who
shall act as president until a president is elected. If vacancy occurs
during a term, then congress must enact a law as to who shall be
the active president.
1. At the beginning of term
Article VII, Section 7. The President-elect and the Vice President-
elect shall assume office at the beginning of their terms.
If the President-elect fails to qualify, the Vice President-elect shall
act as President until the President-elect shall have qualified.
If a President shall not have been chosen, the Vice President-elect
shall act as President until a President shall have been chosen and
qualified.
If at the beginning of the term of the President, the President-elect
shall have died or shall have become permanently disabled, the Vice
President-elect shall become President.
Where no President and Vice-President shall have been chosen or
shall have qualified, or where both shall have died or become
permanently disabled, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall act as
President until a President or a Vice-President shall have been
chosen and qualified.
The Congress shall, by law, provide for the manner in which one
who is to act as President shall be selected until a President or a
Vice-President shall have qualified, in case of death, permanent
disability, or inability of the officials mentioned in the next preceding
paragraph.
2. During term
Article VII, Section 8. In case of death, permanent disability,
removal from office, or resignation of the President, the Vice-
President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or
resignation of both the President and Vice-President, the President
of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or
Vice-President shall have been elected and qualified.
The Congress shall, by law, provide who shall serve as President in
case of death, permanent disability, or resignation of the Acting
President. He shall serve until the President or the Vice-President
shall have been elected and qualified, and be subject to the same
restrictions of powers and disqualifications as the Acting President.
3. In case of temporary disability
Article VII, Section 11. Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits
to them a written declaration to the contrary, such powers and duties
shall be discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to
the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice-President
shall immediately assume the powers and duties of the office as
Acting President.
Thereafter, when the President transmits to the President of the
Senate and to the Speaker of the House of Representatives his
written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all
the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of
Representatives, their written declaration that the President is
unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
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.
Article VII, Section 12. In case of serious illness of the President,
the public shall be informed of the state of his health. The members
of the Cabinet in charge of national security and foreign relations
and the Chief of Staff of the Armed Forces of the Philippines, shall
not be denied access to the President during such illness.
1. If the President is not chosen: the Vice-President shall act
until the President is chosen.
2. If the President fails to qualify even if chosen: the Vice-
President shall act until the President qualifies.
3. If at the beginning of the term, the President dies or
becomes permanently disabled: the Vice-President becomes the
President.
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4. If during the term, the President dies, he becomes
permanently disabled, has been removed or has resigned: the
Vice-President becomes the President.
 Designated Survivor Rule
Is there a law already that designates the survivor after the speaker
of the house? I presume the reason why there I none is because
everybody wants to be.
e. Removal
By (1) impeachment and because of the Sereno ruling also by (2)
electoral protest under Section 4 last paragraph of Article 7, the
Supreme Court sits as electoral tribunal for the president and all
contests relating to the election, returns, and qualifications of the
president and vice-president shall be with the SC, so not only by
impeachment. Outline only mentions Article 11 by impeachment.
Article XI, Section 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 of public trust. All other public officers and
employees may be removed from office as provided by law, but not
by impeachment.
Article XI, Section 3. The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
A verified complaint for impeachment may be filed by any Member of
the House of Representatives or by any citizen upon a resolution or
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.
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.
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.
No impeachment proceedings shall be initiated against the same
official more than once within a period of one year.
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.
Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution, trial, and
punishment, according to law.
The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section.
Article VII, Section 4 (last part)
xxx
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice- President, and may promulgate its rules for the
purpose.
f. Powers and Functions of the President
1. Executive Power
Article VII, Section 1. The executive power shall be vested in the
President of the Philippines.
Article VII, Section 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed.
First up is to remember the concept of residual powers. MARCOS
vs. MANGLAPUS (1989), in our tripartite system of government, if it
is not legislative, not judicial, then it must have to be executive. So
the constitution is not supposed to be a document that lists down all
the powers of the executive. Anything and everything that has
something to do with implementation, execution and administration
is executive in character. The provisions in the constitution should
be read as limitations rather than grants.
MARCOS vs. MANGLAPUS
177 SCRA 668
178 SCRA 760 (1989)
RULING: Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has unstated
residual powers which are implied from the grant of executive power
and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department
and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific power of the
President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.
In the case of OCAMPO vs. ENRIQUEZ (2016), this is the Marcos
burial case in the Libingan Ng Mga Bayani.
Question: Is the order of President Duterte to bury the remains of
Marcos in the Libingan done with great abuse of discretion? Quite a
lengthy decision relating to several laws, but the ultimate conclusion
is that the Libingan Ng Mga Bayani is not the national cemetery
mentioned by law. It is a national memorial shrine or cemetery for
where to bury former military personnel under the auspices of the
Philippine Veterans Administration Office under the Department Of
National Defense, which is under the Office of the President. The
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OP simply implemented the law that any former military personnel
(and dogs!) can be buried in that cemetery.
OCAMPO vs. ENRIQUEZ
807 SCRA 223 (2016)
The President's decision to bury Marcos at the LNMB is in
accordance with the Constitution, the law and jurisprudence.
While the Constitution is a product of our collective history as a
people, its entirety should not be interpreted as providing guiding
principles to just about anything remotely related to the Martial Law
period such as the proposed Marcos burial at the LNMB.
Being the Chief Executive, the President represents the government
as a whole and sees to it that all laws are enforced by the officials
and employees of his or her department. Under the Faithful
Execution Clause, the President has the power to take "necessary
and proper steps" to carry into execution the law. The mandate is
self-executory by virtue of its being inherently executive in nature
and is intimately related to the other executive functions. It is best
construed as an imposed obligation, not a separate grant of
power. The provision simply underscores the rule of law and,
corollarily, the cardinal principle that the President is not above the
laws but is obliged to obey and execute them.
Another thing is the case of SM LAND vs. BCDA (2015) on the
question on executive powers is that: Can a President’s verbal order
have legal effects?
In the case of SM, the SC said that generally, the answer is NO,
because all presidential issuances must have to be in writing.
However, under EO 292 or the administrative code, the executive
secretary can issue an executive issuance under or by authority of
the president. So if the president has given a verbal order, which has
been authenticated in writing by the executive secretary by or under
the authority of the president, that will be a valid order. So verbal per
se--- cannot, BUT if duly authenticated by and in writing of the
executive secretary then that is enough.
In fact if you notice, EO 292 has not been signed by the president. I
think it has been signed only by the executive secretary, during the
interim when the 1987 Constitution took effect and congress re-
convened after the first elections. Aquino was exercising legislative
powers under the 1986 Freedom Constitution. So there were several
statues which came in the form of executive orders. Examples are
the Family Code and the Administrative Code. What is EO 200? It
amended Article 2 of your Civil Code. Publication not only in the
Official Gazette but also a newspaper of general circulation. Not to
be confused with the executive order issued by the president’s
ordinance powers in the administration.
Article 2, Civil Code. Laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette,
unless it is otherwise provided. This Code shall take effect one year
after such publication.
2. Control of Executive Department
 Qualified Political Agency
We said that the allowable delegation in the executive department is
through the so-called power of control by the president over the
entire executive department and directly over members of cabinet
under the Doctrine of Qualified Political Agency, because the
president is not expected to be able to perform all the functions of
his office alone, so he is allowed under the doctrine to let secretaries
of his cabinet perform any and all of his functions. The presumption
is that the acts of the department secretaries are considered acts of
the president until reprobated or changed by the president. Of
course subject to actions of the president because he has the power
of control.
Power of control as distinguished from power of supervision refers to
the effect of the superior officer to that of the subordinate. In control,
superior officer controls the acts of subordinate. He may not be able
to control subordinate himself but his acts. He can revise, reverse,
review or affirm the acts of his subordinates. In supervision, to
ensure the subordinate is faithfully performing the acts of his office, it
may include the power to discipline that subordinate officer. So when
members of the cabinet do not follow the instructions of the
president, they are removed not because the president can remove
them for any other cause, it is because the president has the power
to appoint them and he can remove them for loss of trust.
But what cannot be delegated are the following:
1. Power to declare martial law
2. Power to suspend the privilege of Writ of Habeas Corpus
3. To exercise bargaining powers
4. To enter into executive agreements (based on 2008 Neri
decision)
5. To enter into treaties and other agreements of similar
import or importance
All the rest the president can allow cabinet secretaries to decide.
NERI vs. SENATE COMMITTEE
What the fact ought to be compelled for disclosure are in order for
the court to determine whether it is covered by the executive
privilege. Meaning, a simple claim of executive privilege does not
prevent the disclosure of that. It must have to be shown that in fact it
is part of the privilege. Same thing with the negotiations privilege
where the Supreme Court said that a simple claim of that will not
make it covered by the diplomatic negotiations privilege. It must be
shown that it is really part of the diplomatic negotiations and to
divulge this is prejudicial to public or national interest.
The decision in HONTIVEROS-BARAQUEL vs. TRB (2015), is that
the power to review must have to be reviewed by the secretary of
DOTC. Now there are two different departments. The SC said in the
case that even without that executive order authorizing the secretary
to review contracts entered into by the toll regulatory board, it goes
without saying that under the doctrine of QPA, the secretary can do
the acts of the president.
HONTIVEROS-BARAQUEL vs. TRB
751 SCRA 271 (2015)
ISSUE: Whether the approval of the ASTOA by the DOTC Secretary
was valid
RULING: Approval of the ASTOA by the DOTC Secretary was
approval by the President.
The doctrine of qualified political agency declares that, save in
matters on which the Constitution or the circumstances require the
President to act personally, executive and administrative functions
are exercised through executive departments headed by cabinet
secretaries, whose acts are presumptively the acts of the President
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unless disapproved by the latter.
Applying the doctrine of qualified political agency, we have ruled that
the Secretary of Environment and Natural Resources can validly
order the transfer of a regional office by virtue of the power of the
President to reorganize the national government. In Constantino v.
Cuisia, the Court upheld the authority of the Secretary of Finance to
execute debt-relief contracts. The authority emanates from the
power of the President to contract foreign loans under Section 20,
Article VII of the Constitution. In Angeles v. Gaite, the Court ruled
that there can be no issue with regard to the President’s act of
limiting his power to review decisions and orders of the Secretary of
Justice, especially since the decision or order was issued by the
secretary, the President’s own alter ego.
There can be no question that the act of the secretary is the act of
the President, unless repudiated by the latter. In this case, approval
of the ASTOA by the DOTC Secretary had the same effect as
approval by the President. The same would be true even without the
issuance of E.O. 497, in which the President, on 24 January 2006,
specifically delegated to the DOTC Secretary the authority to
approve contracts entered into by the TRB.
In MANALANG vs. TIDCORP (2013), it is a different set of facts.
TIDCORP was established with 9 members of the board, 5 of which
are members of the cabinet including the NEDA chair. Can the
decision of the board of TIDCORP be reviewable by the president
under the doctrine of QPA? The answer is NO, because TIDCORP
as a board did not act as members of the cabinet, they acted as
members of the board. Their acts, even if members of the cabinet,
did not refer to their particular cabinet position and therefore their
actions as a board is not subject to review by the president under
QPA.
MANALANG vs. TIDCORP
692 SCRA 359 (2013)
The doctrine of qualified political agency could not be extended to
the acts of the Board of Directors of TIDCORP despite some of its
members being themselves the appointees of the President to the
Cabinet. Under Section 10 of Presidential Decree No. 1080, as
further amended by Section 6 of Republic Act No. 8494, the five ex
officio members were the Secretary of Finance, the Secretary of
Trade and Industry, the Governor of the Bangko Sentral ng Pilipinas,
the Director-General of the National Economic and Development
Authority, and the Chairman of the Philippine Overseas Construction
Board, while the four other members of the Board were the three
from the private sector (at least one of whom should come from the
export community), who were elected by the ex officio members of
the Board for a term of not more than two consecutive years, and
the President of TIDCORP who was concurrently the Vice-Chairman
of the Board. Such Cabinet members sat on the Board of Directors
of TIDCORP ex officio, or by reason of their office or function, not
because of their direct appointment to the Board by the President.
Evidently, it was the law, not the President, that sat them in the
Board.
Under the circumstances, when the members of the Board of
Directors effected the assailed 2002 reorganization, they were acting
as the responsible members of the Board of Directors of TIDCORP
constituted pursuant to Presidential Decree No. 1080, as amended
by Republic Act No. 8494, not as the alter egos of the President. We
cannot stretch the application of a doctrine that already delegates an
enormous amount of power. Also, it is settled that the delegation of
power is not to be lightly inferred.
3. Supervision of Local Governments and Autonomous
Regions
Article X, Section 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.
Article X, Section 16. The President shall exercise general
supervision over autonomous regions to ensure that laws are
faithfully executed.
Our present constitution has granted expanded autonomy to local
governments. Despite that, local government, remain accountable to
the national government. So the question here, in the case of
VILLAFUERTE vs. ROBREDO (2014) is can the local government
officials be disciplined by the secretary of interior and local
government for failure to comply with certain issuances of then-
secretary Robredo?
This case involved the need for transparency of then-secretary
Robredo institutionalizing the posting of all bids and awards of local
governments for everybody to see and the memorandum required
them under the pain of administrative penalty. Governor Villafuerte
argued it destroys the concept of expanded autonomy. The SC said
that even if granted certain powers especially on fiscal matters, it
does not mean that they are no longer accountable to the national
government. The issuances of Sec. Robredo was in line with the
constitutional trust of public office, public trust and transparency, and
there was nothing in the issuances that provided for penalties not
already provided for by law so it was not done with abuse of
discretion. Because in supervision it is said that it is not only the act
itself which is affected, but the actor himself will be affected.
VILLAFUERTE vs. ROBREDO
744 SCRA 534 (2014)
ISSUE: Did the assailed memorandum circulars violate the
principles of local and fiscal autonomy?
RULING: NO, a reading of MC No. 2010-138 shows that it is a mere
reiteration of an existing provision in the LGC. It was plainly intended
to remind LGUs to faithfully observe the directive stated in Section
287 of the LGC to utilize the 20% portion of the IRA for development
projects. It was, at best, an advisory to LGUs to examine themselves
if they have been complying with the law. It must be recalled that the
assailed circular was issued in response to the report of the COA
that a substantial portion of the 20% development fund of some
LGUs was not actually utilized for development projects but was
diverted to expenses more properly categorized as MOOE, in
violation of Section 287 of the LGC.
Contrary to the Villafuerte, et al.’s posturing, however, the
enumeration was not meant to restrict the discretion of the LGUs in
the utilization of their funds. LGUs remain at liberty to map out their
respective development plans solely on the basis of their own
judgment and utilize their IRAs accordingly, with the only restriction
that 20% thereof be expended for development projects. They may
even spend their IRAs for some of the enumerated items should
they partake of indirect costs of undertaking development projects.
Villafuerte, et al. likewise misread the issuance by claiming that the
provision of sanctions therein is a clear indication of the President’s
interference in the fiscal autonomy of LGUs. Significantly, the
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issuance itself did not provide for sanctions.
It did not particularly establish a new set of acts or omissions which
are deemed violations and provide the corresponding penalties
therefor. It simply stated a reminder to LGUs that there are existing
rules to consider in the disbursement of the 20% development fund
and that non-compliance therewith may render them liable to
sanctions which are provided in the LGC and other applicable laws.
Villafuerte,et al. claim that the requirement to post other documents
in the mentioned issuances went beyond the letter and spirit of
Section 352 of the LGC and R.A. No. 9184, otherwise known as the
Government Procurement Reform Act, by requiring that budgets,
expenditures, contracts and loans, and procurement plans of LGUs
be publicly posted as well.
4. Power of Appointment
This is generally executive in character. By character, it is supposed
to be discretionary. Congress can by law provide for qualifications to
an office which by law was created but it could not affect the
discretionary nature of the appointing power by providing for
qualifications that only one can qualify for the position.
In the case of Flores vs. Drilon which concerned the law creating the
SBMA. It created for the authority and established the office of the
chairperson and the law provided that the first chairperson should be
the mayor of Olongapo city. That provision was declared
unconstitutional not only because a sitting mayor cannot hold any
other position under the LGC, but because it also violates the
discretionary nature of the appointing authority. Congress can
provide for qualifications, but not to the point that only one person
can qualify so it generally prevents the appointing authority from
exercising any discretion.
FLORES vs. DRILON
ISSUE: Whether there is legislative encroachment on the appointing
authority of the President.
RULING: YES, although Section 13(d) itself vests in the President
the power to appoint the Chairman of SBMA, he really has no choice
but to appoint the Mayor of Olongapo City. The power of choice is
the heart of the power to appoint. Appointment involves
an exercise of discretion of whom to appoint. Hence, when
Congress clothes the President with the power to appoint an officer,
it cannot at the same time limit the choice of the President to only
one candidate. Such enactment effectively eliminates the discretion
of the appointing power to choose and constitutes an irregular
restriction on the power of appointment. While it may be viewed that
the proviso merely sets the qualifications of the officer during the first
year of operations of SBMA, i.e., he must be the Mayor of Olongapo
City, it is manifestly an abuse of congressional authority to prescribe
qualifications where only one, and no other, can qualify.
Since the ineligibility of an elective official for appointment remains
all throughout his tenure or during his incumbency, he may however
resign first from his elective post to cast off the constitutionally-
attached disqualification before he may be considered fit for
appointment. Consequently, as long as he is an incumbent, an
elective official remains ineligible for appointment to another public
office.
We have discussed the requirements for confirmation by the
Commission on Appointments (CA). The crucial positions require
that the nature of the listing in that first sentence of Section 16,
Article VII cannot be expanded and those which should be appointed
by the president under the constitution would refer to the sectoral
representatives before we refer to the regular members of JBC and
chairpersons and members of the constitutional commissions. So
literally the president appoints them under the constitution and the
list is exclusive. It could not be expanded.
We’ve also discussed the nature of ad-interim or recess
appointments. Remember the 2005 case of Pimentel? When the
position requiring CA confirmation becomes vacant, the president is
not compelled to make a regular appointment immediately. The
president may make or extend appointments in an acting capacity.
Senate President Pimentel questioned the practice of President
Arroyo in extending appointments to the cabinet in an acting
capacity. He argued that it violates the CA confirmation by not
extending a regular appointment. The SC said that even if the
position requires CA confirmation, it is not required that the president
should make a regular appointment because the power to appoint is
discretionary. For as long as it was done in good faith and was not
done to circumvent the law, that is allowed until the president finds a
suitable replacement and makes a regular appointment.
In the case of AGUINALDO vs. AQUINO (2017), this is your latest
case involving the appointing authority of the president. This
involves the appointing power of President Aquino when the
Sandiganbayan Law was amended, creating 6 more divisions. The
JBC received applications and vetted the applicants and submitted 6
shortlist between 5-7 names for each division. 37 names in all 6 lists.
Aquino appointed some and the IBP questioned the appointees,
arguing that it violated the rule under the constitution that for every
vacancy, the JBC must vet and submit at least 3 nominees from
which the president’s appointment shall be made.
They argue that the president must limit his choice for every division
in the shortlist submitted by the JBC for that division only, and that if
the name of a person is shortlisted in division 16, he cannot be
appointed in division 21 and vice versa. Question is: Did the
president violate the constitution? SC said NO.
The constitutional provision is quite simple that for every vacancy,
JBC must submit a list of at least 3 nominees. To limit the appoint
power of the president to the list submitted by the JBC per division in
cluster violates the appointing power of the president. In
appointments to the judiciary, how is seniority determined respecting
appointment to the judiciary? Date of appointment is the first rule on
seniority.
If you are appointed on the same date, the order in which your
names appear determines the order of seniority. So whoever is
listed first is more senior than whoever is listed next. So if president
appoints from cluster 16, then that determines seniority, because he
will have to appoint first from division 16, then 17, then 18, and so on
and so forth up to division 21. The president must have discretion to
determine who is more senior then the rest of appointees.
Secondly, the SC said that the clustering also prevents the president
from appointing anyone who has been vetted and qualified for the
same position to be appointed to another position. Stated differently,
the question is this: If you have vetted and qualified and shortlisted
for the 16th division, why can you not be qualified for the 21st
division? Is there a different set of qualifications? The answer is NO.
All of those in the list, regardless of what division, they appear, have
been vetted and have been found to have complied with minimum
requirements of proven competence, integrity, probity and
independence. So that is your Aguinaldo vs Aquino ruling. Aguinaldo
is the president of the IBP.
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AGUINALDO vs. AQUINO III
811 SCRA 304 (2016)
818 SCRA 310 (2017)
The primordial question then for resolution of the Court is whether
President Aquino, under the circumstances, was limited to appoint
only from the nominees in the shortlist submitted by the JBC for
each specific vacancy.
RULING: The Court answers in the negative.
It is apparent from the aforequoted CONCOM deliberations that
nomination by the JBC shall be a qualification for appointment to the
Judiciary, but this only means that the President cannot appoint an
individual who is not nominated by the JBC.
It should be stressed that the power to recommend of the JBC
cannot be used to restrict or limit the President's power to appoint as
the latter's prerogative to choose someone whom he/she considers
worth appointing to the vacancy in the Judiciary is still paramount.
As long as in the end, the President appoints someone nominated
by the JBC, the appointment is valid.
Moreover, in the case at bar, there were six simultaneous vacancies
for the position of Sandiganbayan Associate Justice, and the JBC
cannot, by clustering of the nominees, designate a numerical order
of seniority of the prospective appointees. The Sandiganbayan, a
collegiate court, is composed of a Presiding Justice and 20
Associate Justices divided into seven divisions, with three members
each. The numerical order of the seniority or order of preference of
the 20 Associate Justices is determined pursuant to law by the date
and order of their commission or appointment by the President.
Evidently, based on law, rules, and jurisprudence, the numerical
order of the Sandiganbayan Associate Justices cannot be
determined until their actual appointment by the President.
It bears to point out that part of the President's power to appoint
members of a collegiate court, such as the Sandiganbayan, is the
power to determine the seniority or order of preference of such
newly appointed members by controlling the date and order of
issuance of said members' appointment or commission papers.
There is also a legal ground why the simultaneous vacant positions
of Sandiganbayan Associate Justice should not each be assigned a
specific number by the JBC. The Sandiganbayan Associate Justice
positions were created without any distinction as to rank in seniority
or order of preference in the collegiate court. The President appoints
his choice nominee to the post of Sandiganbayan Associate Justice,
but not to a Sandiganbayan Associate Justice position with an
identified rank, which is automatically determined by the order of
issuance of appointment by the President. The appointment does
not specifically pertain to the 16th, 17th, 18th, 19th, 20th, or 21st
Sandiganbayan Associate Justice, because the Sandiganbayan
Associate Justice's ranking is temporary and changes every time a
vacancy occurs in said collegiate court.
Furthermore, the JBC, in sorting the qualified nominees into six
clusters, one for every vacancy, could influence the appointment
process beyond its constitutional mandate of recommending
qualified nominees to the President. Clustering impinges upon the
President's power of appointment, as well as restricts the chances
for appointment of the qualified nominees, because (1) the
President's option for every vacancy is limited to the five to seven
nominees in the cluster; and (2) once the President has appointed
from one cluster, then he is proscribed from considering the other
nominees in the same cluster for the other vacancies. The said
limitations are utterly without legal basis and in contravention of the
President's appointing power.
August 15, 2018 – Janine Lumanag
 Revised Rules on Administrative Cases in the Civil Service
We’ve already mentioned GONZALES vs. OFFICE OF THE
PRESIDENT (2012). We will see what will happen in the impending
dismissal complaint overhaul that the Ombudsman because the
newly appointed ombudsman has publicly declared that he will
implement the decision. This is contrary to the 2014 ruling of
GONZALES vs. OFFICE OF THE PRESIDENT.
GONZALES vs. OFFICE OF THE PRESIDENT
714 SCRA 611 (2014)
Section 8(2) of RA No. 6770 vesting... disciplinary authority in the
President... over the Deputy Ombudsman violates... the
independence of the Office of the Ombudsman and is thus...
unconstitutional... we rule that subjecting the Deputy Ombudsman
to discipline and removal by the President, whose own alter egos
and officials in the Executive Department are subject to the
Ombudsman's disciplinary authority, cannot but seriously place at
risk the... independence of the Office of the Ombudsman itself.
The Office of the Ombudsman, by express constitutional mandate,
includes its key officials, all of them tasked to support the
Ombudsman in carrying out her mandate. Unfortunately, intrusion
upon the... constitutionally-granted independence is what Section
8(2) of RA No. 6770 exactly did. By so doing, the law directly
collided not only with the independence that the Constitution
guarantees to the Office of the Ombudsman, but inevitably with the
principle of checks and... balances that the creation of an
Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily
true for her Deputies who act as agents of the Ombudsman in the
performance of their duties. The Ombudsman can hardly be
expected to place her complete trust in her subordinate officials
who are not as... independent as she is, if only because they are
subject to pressures and controls external to her Office. This need
for complete trust is true in an ideal setting and truer still in a young
democracy like the Philippines where graft and corruption is still a
major problem... for the government. For these reasons, Section
8(2) of RA No. 6770 (providing that the President may remove a
Deputy Ombudsman) should be declared void.
he statements made by Commissioner Monsod emphasized a very
logical principle: the Executive power to remove and discipline key
officials of the Office of the Ombudsman, or to exercise any power
over them, would result in an absurd situation wherein the Office of
the Ombudsman is given the duty to adjudicate on the integrity and
competence of the very persons who can remove or suspend its
members.
5. Executive Clemencies
Article VII, Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the President may grant
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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.
Article IX-C, Section 5. No pardon, amnesty, parole, or suspension
of sentence for violation of election laws, rules, and regulations shall
be granted by the President without the favorable recommendation
of the Commission.
The pardoning powers of the President are largely executive,
discretionary, final and unappealable. If there is no constitutional
provision or limitation violated, the private act of the President
though official, which is the grant of pardon or clemency is
considered to be final and unappealable.
The limitations as provided for in the Constitution are the following:
1. There must have to be conviction by final judgment
If it is in relation to an election offense, there must be favorable
recommendation by the Comelec.
2. It cannot be done in cases of impeachement and there are
no other constitutional limitations on the exercise of such
power.
In the case of RISOS-VIDAL vs. COMELEC (2015), the SC had the
occasion to mention one doctrine, the doctrine of non-diminution
or non-impairment of the president’s power of pardon by acts
of Congress. Simply there can be no legislation which would limit
the power of the president to extend executive clemency because
only the constitution can provide for such limitation.
In the said case, this was the pardon extended to former president
Estrada by Gloria Macapagal-Arroyo (GMA). It’s for the conviction
for plunder and part of the discussion there was whether the grant of
pardon was conditional or absolute. Cited by petitioner was one of
the preambular clause, the third one saying that president Estrada
affirmed that he will no longer stay in the public office.
So the question was, in running for an elective position, did he
violate the conditions of pardon. SC said that the preambular clause
– the whereas clauses of the statute, the grant of pardon being one,
is not considered to be part of the operative fact or act of the grant of
pardon. The recitation of the grant of pardon stating that he is
restored to all his political and civil rights is an indication that the
grant was absolute and so, he was not disqualified to run.
RISOS-VIDAL vs. COMELEC
747 SCRA 210 (2015)
In September 12, 2007, the Sandiganbayan convicted former
President Estrada for the crime of plunder and was sentenced to
suffer the penalty of Reclusion Perpetua and the accessory
penalties of civil interdiction during the period of sentence and
perpetual absolute disqualification. On October 25, 2007, however,
former President Gloria Macapagal Arroyo extended executive
clemency, by way of pardon, to former President Estrada, explicitly
stating that he is restored to his civil and political rights.
In 2009, Estrada filed a Certificate of Candidacy for the position of
President. None of the disqualification cases against him
prospered but he only placed second in the results.
In 2012, Estrada once more ventured into the political arena, and
filed a Certificate of Candidacy, this time vying for a local elective
post, that of the Mayor of the City of Manila.
Petitioner Risos-Vidal filed a Petition for Disqualification against
Estrada before the Comelec stating that Estrada is disqualified to
run for public office because of his conviction for plunder
sentencing him to suffer the penalty of reclusion perpetua with
perpetual absolute disqualification. Petitioner relied on Section 40
of the Local Government Code (LGC), in relation to Section 12 of
the Omnibus Election Code (OEC).
The Comelec dismissed the petition for disqualification holding that
President Estrada’s right to seek public office has been effectively
restored by the pardon vested upon him by former President Gloria
M. Arroyo.
Estrada won the mayoralty race in May 13, 2013 elections. Alfredo
Lim, who garnered the second highest votes, intervened and
sought to disqualify Estrada for the same ground as the contention
of Risos-Vidal and praying that he be proclaimed as Mayor of
Manila.
ISSUE: May former President Joseph Estrada run for public office
despite having been convicted of the crime of plunder which
carried an accessory penalty of perpetual disqualification to hold
public office?
RULING: Yes. Estrada was granted an absolute pardon that fully
restored all his civil and political rights, which naturally includes the
right to seek public elective office, the focal point of this
controversy. The wording of the pardon extended to former
President Estrada is complete, unambiguous, and unqualified. It is
likewise unfettered by Articles 36 and 41 of the Revised Penal
Code. The only reasonable, objective, and constitutional
interpretation of the language of the pardon is that the same in fact
conforms to Articles 36 and 41 of the Revised Penal Code.
It is insisted that, since a textual examination of the pardon given
to and accepted by former President Estrada does not actually
specify which political right is restored, it could be inferred that
former President Arroyo did not deliberately intend to restore
former President Estrada’s rights of suffrage and to hold public
office, orto otherwise remit the penalty of perpetual absolute
disqualification. Even if her intention was the contrary, the same
cannot be upheld based on the pardon’s text.
The pardoning power of the President cannot be limited by
legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and
Section 5 of Article IX-C, provides that the President of the
Philippines possesses the power to grant pardons, along with other
acts of executive clemency, to wit:
Section 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.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of sentence
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for violation of election laws, rules, and regulations shall be
granted by the President without the favorable recommendation of
the Commission.
It is apparent from the foregoing constitutional provisions that the
only instances in which the President may not extend pardon
remain to be in: (1) impeachment cases; (2) cases that have not
yet resulted in a final conviction; and (3) cases involving violations
of election laws, rules and regulations in which there was no
favorable recommendation coming from the COMELEC. Therefore,
it can be argued that any act of Congress by way of statute cannot
operate to delimit the pardoning power of the President.
The third preambular clause of the pardon did not operate to
make the pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause
of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office," neither
makes the pardon conditional, nor militate against the conclusion
that former President Estrada’s rights to suffrage and to seek
public elective office have been restored.
This is especially true as the pardon itself does not explicitly
impose a condition or limitation, considering the unqualified use of
the term "civil and political rights"as being restored. Jurisprudence
educates that a preamble is not an essential part of an act as it is
an introductory or preparatory clause that explains the reasons for
the enactment, usually introduced by the word "whereas."
Whereas clauses do not form part of a statute because, strictly
speaking, they are not part of the operative language of the
statute. In this case, the whereas clause at issue is not an integral
part of the decree of the pardon, and therefore, does not by itself
alone operate to make the pardon conditional or to make its
effectivity contingent upon the fulfilment of the aforementioned
commitment nor to limit the scope of the pardon.
Besides, a preamble is really not an integral part of a law. It is
merely an introduction to show its intent or purposes. It cannot be
the origin of rights and obligations. Where the meaning of a statute
is clear and unambiguous, the preamble can neither expand nor
restrict its operation much less prevail over its text.
If former President Arroyo intended for the pardon to be conditional
on Respondent’s promise never to seek a public office again, the
former ought to have explicitly stated the same in the text of the
pardon itself. Since former President Arroyo did not make this an
integral part of the decree of pardon, the Commission is
constrained to rule that the 3rd preambular clause cannot be
interpreted as a condition to the pardon extended to former
President Estrada.
a. Amnesty vs. Pardon
The case of MAGDALO vs. COMELEC (2012) discusses the
distinction between Amnesty and pardon. Amnesty is an act of the
sovereign that’s why the Constitution requires that section 19
requires prior concurrence of congress, it’s not a private act of the
president alone unlike a pardon.
MAGDALO vs. COMELEC
673 SCRA 651 (2012)
Amnesty commonly denotes a general pardon to rebels for their
treason or other high political offenses, or the forgiveness which
one sovereign grants to the subjects of another, who have
offended, by some breach, the law of nations. Amnesty looks
backward, and abolishes and puts into oblivion, the offense
itself; it so overlooks and obliterates the offense with which
he is charged, that the person released by amnesty stands
before the law precisely as though he had committed no
offense.
Pardon is granted by the Chief Executive and as such it is a private
act which must be pleaded and proved by the person pardoned,
because the courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the concurrence of
Congress, is a public act of which the courts should take
judicial notice.
Amnesty – any person can claim coverage or benefit under the
amnesty proclamation regardless of the stage whether he has not
yet been arrested, been arrested, tried, convicted or serving
sentence provided one is covered by the amnesty proclamation, one
can claim amnesty.
In pardon, there must have to be a conviction by final judgment.
You all remember that case of PEOPLE vs. SALLE, JR. (1995)
where the SC traced the history of the requirement of conviction by
final judgment. In the original text of the 1935 Constitution, this
followed the American condition that there has or there is no
requirement of conviction, only an act of commission. Once a crime
has been committed, a person may be granted pardon already or
executive clemency.
In the 1973 original draft, as approved, it required conviction by final
judgment although even if it is on appeal provided there has been a
conviction by the trial court, pardon or clemency can be extended.
When it was amended in 1981, it returned to the American tradition
that no conviction required.
In the 1987, it was restored and the phraseology was changed, it is
now clear that there must have to be judgment of final conviction
meaning there is no appeal pending, there is service of sentence or
one must have applied for probation. In instances where before
under the imposed death penalty, a person may waive his right to
appeal in writing except in instances of death penalty impositions, a
conviction is also considered final. When it is so, then executive
clemency can be extended.
PEOPLE vs. SALLE, JR.
250 SCRA 581 (1995)
Section 19, Article VII thereof reads as follows:
“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.”
Where the pardoning power is subject to the limitation
of conviction, it may be exercised at any time after conviction even
if the judgment is on appeal. It is, ofcourse, entirely different where
the requirement is " final conviction, " as was mandated in the
original provision of Section 14, Article IX of the 1973 Constitution,
or "conviction by final judgment," as presently prescribed in
Section 19, Article VII of the 1987 Constitution. In such a case, no
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pardon may be extended before a judgment
of conviction becomes final.
A judgment of conviction becomes final (a) when no appeal is
seasonably perfected, (b) when the accused commences to serve
the sentence, (c) when the right to appeal is expressly waived in
writing, except where the death penalty was imposed by the trial
court, and (d) when the accused applies for probation, thereby
waiving his right to appeal. Where the judgment of conviction is still
pending appeal and has not yet therefore attained finality, as in the
instant case, executive clemency may not yet be granted to
the appellant.
The "conviction by final judgment" limitation under Section
19, Article VII of the present Constitution prohibits the grant of
pardon, whether full or conditional, to an accused during the
pendency of his appeal from his conviction by the trial
court. Any application therefor, if one is made, should not be acted
upon or the process toward its grant should not be begun unless
the appeal is withdrawn. Accordingly, the agencies or
instrumentalities of the Government concerned must require proof
from the accused that he has not appealed from his conviction or
that he has withdrawn his appeal. Such proof may be in the form of
a certification issued by the trial court or the appellate court, as the
case may be.
The acceptance of the pardon shall not operate as an
abandonment or waiver of the appeal, and the release of an
accused by virtue of a pardon, commutation of sentence, or parole
before the withdrawal of an appeal shall render those responsible
therefor administratively liable. Accordingly, those in custody of the
accused must not solely rely on the pardon as a basis for the
release of the accused from confinement.
WHEREFORE, counsel for accused-appellant Ricky Mengote y
Cuntado is hereby given thirty (30) days from notice hereof within
which to secure from the latter the withdrawal of his appeal and to
submit it to this Court. The conditional pardon granted the
said appellant shall be deemed to take effect only upon the grant
of such withdrawal. In case of non-compliance with this Resolution,
the Director of the Bureau of Corrections must exert every possible
effort to take back into his custody the said appellant, for which
purpose he may seek the assistance of the Philippine National
Police or the National Bureau of Investigation.
b. Pardon vs. Probation
You know what probation is, it covers a certain specie of offenses
where the penalty imposable does not exceed 6 years and there is
other requirements of first time offender.
The question there is, is that granted by the president as part of his
clemency powers? Technically it is not, it is granted by the Court
upon proper recommendation of the parole and probation board. But
it is also granted by the executive department but again not granted
directly by the president but upon order of the court.
c. Pardon vs. Parole
Who grants parole? Also the parole and probation board after
minimum service of minimum sentence under the ISL. Not directly
granted by the president.
d. Effects of Pardon
If the pardon is absolute, it restores the person to all his civil and
political rights.
If it is conditional, a condition must have to be complied with or
satisfied before a person is fully restored to all his rights civil and
political.
e. Sanctions for Violations of Conditional Pardons
There is a separate felony for failing to comply with conditional
pardon or there can be administrative liability by requiring the
accused to serve the remainder if there is a violation of the pardon.
f. Does pardoning power apply to administrative cases?
The old case of LLAMAS vs. EXECUTIVE SECRETARY (1991) is
still a good law. It can be extended to administrative cases but only if
the power is with the president. In administrative cases relating to
other branches of the government which the President does not
have any power of discipline, the president cannot extend pardoning
powers or clemency powers to those administrative held liable in
their respective cases (?).
LLAMAS vs. EXECUTIVE SECRETARY
202 SCRA 844 (1991)
Ocampo III was the governor of Tarlac Province. Llamas together
with some other complainants filed an administrative case against
Ocampo III for alleged acts constituting graft and corruption.
Ocampo III was found guilty. He was suspended for office for 90
days hence his vice governor, Llamas, assumed office. In not less
than 30 days however, Ocampo III returned with an AO showing
that he was pardoned hence he can resume office without
completing the 90 day suspension imposed upon him.
The petitioner argues that President may grant executive clemency
only in criminal cases. They say that the qualifying phrase “after
conviction by final judgment” applies solely to criminal cases, and
no other law allows the grant of executive clemency or pardon to
anyone who has been “convicted in an administrative case,
allegedly because the word “conviction” refers only to criminal
cases.
ISSUE: WON the President of the Philippines has the power to
grant executive clemency in administrative cases.
RULING: Yes. It is not specified in the constitution whether it may
be considered under criminal or administrative cases. , if the law
does not distinguish, so we must not distinguish. The Constitution
does not distinguish between which cases executive clemency
may be exercised by the President, with the sole exclusion of
impeachment cases. By the same token, if executive clemency
may be exercised only in criminal cases, it would indeed be
unnecessary to provide for the exclusion of impeachment cases
from the coverage of Article VII, Section 19 of the Constitution.
Cases of impeachment are automatically excluded inasmuch as
the same do not necessarily involve criminal offenses.
The do not clearly see any valid and convincing reason why the
President cannot grant executive clemency in administrative
cases. It is the court’s considered view that if the President can
grant reprieves, commutations and pardons, and remit fines and
forfeitures in criminal cases, with much more reason can she grant
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executive clemency in administrative cases, which are clearly less
serious than criminal offenses.
The court stressed, however, that when we say the President can
grant executive clemency in administrative cases, we refer only to
all administrative cases in the Executive branch, not in the Judicial
or Legislative branches of the government.
In criminal cases, the quantum of evidence required to convict an
individual is proof beyond reasonable doubt. On the other hand, in
administrative cases, the quantum of evidence required is mere
substantial evidence to support a decision.
6. Powers of Commander-in-Chief
Article VII, Section 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 of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
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.
Article III, Section 13. All persons, except those charged with
offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by sufficient sureties, or
be released on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required.
Article VIII, Section 1. xxx
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.
This refers to the military powers of the president. Section 18 as we
all know is the longest provision in the present constitution singularly
as a result of the effects of the declaration of Martial Law. The
framers of the 1987 Constitution has tried to perceive and conceive
all limitations to avoid repetition of the events of the past. The case
of LAGMAN vs. EXECUTIVE SECRETARY (2017) is the longest
decision now per report in the SCRA.
There is a listing of the powers which the President can do under
Section 18. The first is referred to as the calling out power.
1. Calling out power
To call out the armed forces to suppress any lawless
violence invasion of.
2. Suspension of the privilege of the writ of habeas
corpus
3. Declaration of martial law
In Lagman, the SC said that the listing is not an
enumeration of the sequence of power that the President
can exercise. It’s just a listing based on gravity or
graveness of the offense. The SC cannot quantify nor
direct which of these powers the president should or must
exercise in a particular situation. It is not for the President
to exercise calling out first then suspend then declare
martial law. It depends on the calculation of the president
based on the exercise of discretion on whether the
conditions are met.
LAGMAN vs. EXECUTIVE SECRETARY
G.R. No. 231658; July 4, 2017
Graduation of powers: It refers to hierarchy based on scope
and effect, and not to a sequence/order that the President
must adhere to. Also, the Court cannot calibrate the
President's decision on which among the powers he will avail
of in a given situation.
The President as Commander-in-Chief has three extraordinary
powers: (a) Calling out the armed forces, (b) Suspending the
privilege of the writ of habeas corpus, and (c) Declaring martial
law.
Calling out the armed forces is the most benign and involves
ordinary police action. It is done only when it is necessary to
prevent or suppress lawless violence, invasion, or rebellion. The
only limitations are that the president must act within constitutional
boundaries and not in a manner constituting grave abuse of
discretion.
For both the suspension of the privilege of the writ of habeas
corpus and the declaration of martial law, the president is allowed
to resort to these only when there is actual invasion or rebellion
AND public safety requires it. It is limited to 60 days, subject to
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review and possible revocation by Congress, and also to review
and possible nullification by the Supreme Court. Insurrection and
IMMINENT danger are NOT grounds for the suspension of the writ
or declaration of Martial Law. As a constitutionally granted power
of the President, the recommendation of the Defense Secretary to
declare martial law is not a prerequisite.
During the period of martial law, the president exercises police
power, which is normally a function of the legislature. The
president as commander-in-chief can also order arrests and
seizures without judicial warrants, ban public assemblies, takeover
news media and agencies and censor the press, and issue
presidential decrees. Nonetheless, the president still does not have
unbridled discretion to infringe the rights of civilians because
martial law does not suspend the operation of the Constitution, nor
supplant the operation of civil courts or legislative assemblies.
Petition for certiorari is not the appropriate proceeding. It is
also not correct to say that the power to review the factual
basis of the declaration of Martial Law falls under Section 1
and Section 5, Article VIII.
Rule 65 is not the appropriate proceeding because this refers to
whether or not an official gravely abused his/her authority
amounting to lack or excess of jurisdiction. The review of the
sufficiency of the FACTUAL basis of Martial Law cannot be done
using the same standard of review. The jurisdiction of the Supreme
Court in reviewing the sufficiency of the factual basis of the
declaration of martial law is suis generis -- it is a special ad specific
jurisdiction of the Supreme Court aside from those enumerated in
Section 1 (expanded jurisdiction of the Court) and Section 5
(exclusive and original jurisdiction of the SC) of Article VIII. If the
Court applies the standard of review used in a petition for
certiorari, the same would emasculate its constitutional task under
Section 18, Article VII. The framers of the Constitution added an
additional safeguard under the third paragraph of Section 18,
Article VII on top of the expanded jurisdiction of the Court.
Lansang doctrine reiterated
According to the case of Garcia-Padilla vs. Enrile, decided after the
declaration of martial law during the presidency of Ferdnand
Marcos, the declaration of martial law and the suspension of the
privilege of the writ of habeas corpus is a political question and not
subject to judicial review. The Garcia case overturned the Lansang
doctrine, an earlier case that declared that the factual basis of
declaring martial law and the suspension of the privilege of the writ
of habeas corpus are subject to judicial inquiry. In the case at bar,
the Supreme Court made it clear that the 1987 Constitution
(Section 18, Article VII) reverted to and constitutionalized the
Lansang doctrine.
The power of the Court to review the sufficiency of the factual
basis of the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus under Section 18,
Article VII of the 1987 Constitution is independent of the
actions taken by Congress.
By this conclusion, the Court reversed the doctrine in Fortun vs.
Macapagal-Arroyo insofar as it refers to the role of Congress and
the Supreme Court in the review of the factual basis of the
declaration of martial law. In Fortun, the Court declared that it was
only on "standby" in case Congress defaults, but the Court made it
clear in the case at bar that the it can exercise its power of review
simultaneously with the power of Congress to do the same.
Proclamation No. 216 is not vague and is, therefore,
constitutional.
As held in this case, the void-for-vagueness doctrine applies only
to free speech cases. Proclamation No. 216 does not regulate
speech or any other fundamental right that may be facially
challenged. It only seeks to penalize conduct, not speech.
The inclusion of "other rebel groups" does not make the
proclamation vague, as it should be interpreted in relation to the
other words that accompany it. They refer to the other rebel groups
as found in Proclamation No. 55 (calling out armed forces), which
was cited in Proclamation No. 216 by way of reference in the
Whereas clauses.
The lack of operational parameters does not make the
proclamation void. Operational guidelines are mere tools for the
implementation of the proclamation. Judicial review covers only the
sufficiency of the information or data at the time, or prior to the
declaration or suspension. The review by this Court will be
confined to the proclamation itself and the report submitted to
Congress. Any act committed under the said orders in violation of
the Constitution and the laws, such as criminal acts or human
rights violations, should be resolved in a separate proceeding.
Sufficiency of factual basis test
The president as Commander-in-Chief has the sole discretion to
declare martial law and/or to suspend the privilege of the writ of
habeas corpus. The determination of this Court as to whether there
is sufficient factual basis for the exercise of such must ONLY be
based on facts or information known by the President at the time
he made the declaration or suspension, which facts or information
are already found in the proclamation as well as the written Report
submitted by him to Congress.
The Court cannot look at the absolute correctness of the facts, as
this will unduly burden the president and impede the process of
decision-making. The Court should look into the full complement or
totality of the factual basis, and not piecemeal or individually. The
Court does not need to satisfy itself that the President's decision is
correct, rather it only has to satisfy itself that the decision had
sufficient factual bases. (Sufficiency > accuracy)
Standard of proof is only probable cause.
The Supreme Court declared that the president only needs to
satisfy probable cause to make a declaration of martial law and to
suspend the privilege of the writ of habeas corpus. This is,
according to the majority decision, the most practical and most
expedient standard by which the President can ascertain the
existence or non-existence of rebellion. Based on the facts cited in
the 2 proclamations and the report to Congress, the Court found
that the factual circumstances in Marawi warranted the declaration
of Martial Law. As to other parts of Mindanao, the Court took notice
of the fact that the Maute group has established extensive
networks and linkages with foreign and local armed groups.
The counter-evidence provided by the petitioners were not given
credence. As found by the Court, the counter-evidence came from
unverified news reports. The ruling in Bedol vs. Commission on
Elections on the admissiblity of independent relevant statements
does not apply. Independent relevant statements are reliable only
when the statements are relevant and when the truth or falsity
thereof is immaterial. In the case at bar, the truth or falsity of the
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contents of the news reports is material.
Maute groups are terrorists. Although terrorism is not cited as
a ground to declare martial law, terrorism and rebellion are
not mutually exclusive.
Terrorism neither negates nor absorbs rebellion. Objective of a
terrorist is to sow and create a condition of widespread fear among
the populace in order for the government to give in to an unlawful
demand. Rebellion is political. Nonetheless, nothing in Article 134
of the Revised Penal Code nor RA 9372 makes them mutually
exclusive. In fact, rebellion may be subsumed under the crime of
terrorism, which is broader in scope and covers a wide range of
predicate crimes. Rebellion is only one of the various means by
which terrorism can be committed.
As to the powers of congress while the case of FORTUN vs.
MACAPAGAL-ARROYO (2012) on the Maguindanao Martial law
declaration, said that the power to declare martial law is shared by
both the President and Congress. That has been altered in the case
of LAGMAN where the SC said there is no requirement of prior
consent or approval from congress, the president can declare
martial law. Absolutely, the president has the power to declare
without requiring any prior approval of any other office for that
matter.
FORTUN vs. MACAPAGAL-ARROYO
668 SCRA 504 (2012)
The President has the sole and exclusive power to declare martial
law or suspend the writ. This power of the President is subject to
review separately by Congress and the Supreme Court. Justice
Mendoza stresses, "Thus, Congress and this Court have separate
spheres of competence. They do not act ‘jointly and sequentially’ but
independently of each other." Father Bernas points out, "Since the
powers of Congress and the Court are independent of each other,
there is nothing to prevent Congress and the Court from
simultaneously exercising their separate powers."
What is the basis for the president to declare martial law?
This is based on the test of sufficiency of the factual basis – that
there is invasion or rebellion and that public safety requires it.
Provided those are present, then the president can declare martial
law. When the President mixed(?) that the court to congress in
person or through his representatives in writing as required by the
constitution, congress can consider facts prior during and even after
such declaration. It is a political determination. Congress is not
limited to a determination by the court on the sufficiency of the
factual basis. The SC’s authority comes when there is an
appropriate petition filed.
What is that nature of that petition in Lagman?
The SC said:
 If it were to be to question the calling out power, it must be
based on rule 65 petition. Grave abuse of discretion.
 But if it were to be to question the factual sufficiency of the
suspension of the privilege or declaration of martial law,
then it is sui generis It is not a rule 65 petition because it is
not a test of grave abuse of discretion of arbitrariness. It is
a petition to test the sufficiency of the factual basis for
such suspension or declaration.
Again there is a difference between questioning the calling out
power and with respect to the other two more grave declarations. It
is sui generis because it does not follow the rule 65 rules, any citizen
is supposed to be a proper party to question the sufficiency so when
you talk about a legal standing, the only requirement is that you are
a citizen of majority age of no other particular requirement.
When the petition is filed, the SC said that it upheld the old ruling in
LANSANG vs. GARCIA (1971) that the declaration of martial law or
suspension of the privilege of the writ is a justiciable not a political
question, however, unlike in Lansang vs. Garcia where the SC then
said that it can be tested based on arbitrariness. This time around,
the SC said the Lansang ruling requiring in arbitrariness is no
longer true because what is to be determined is sufficiency of
factual basis.
The SC in determining whether the factual basis is sufficient must
have to consider the totality of the facts based on what has been
reported to the president. It is based on sufficiency not on accuracy.
So even if the facts turn out later to be inaccurate, but by the totality
of the facts taken altogether when the President made the
declaration would make up a sufficient basis for declaring martial law
or suspending the writ that would be sufficient. SC is not allowed to
take facts after into consideration in determining whether the
declaration or suspension was made without sufficient factual basis.
So the cap of is up to the time of declaration or suspension. Unlike
congress which is allowed to take matters even after. Now with
respect to the requirement of determination of the existence of
rebellion, SC said that the President is still bound by Art 134 of the
RPC and that kind of rebellion. However, the determination of its
existence is based on probable cause – such facts and
circumstances which would engender a well-founded belief that
rebellion is being committed. It does not require preponderance, it
does not require proof beyond reasonable doubt, only probable
cause.
Finally with respect to the coverage of declaration of martial law or
suspension of the privilege, the SC made a discussion that it is not
limited to where actual public uprising is happening. Where public
uprising is required in rebellion, there are common crimes which are
absorbed in rebellion under the doctrine of absorption and these
common crimes will be committed in areas where there is no actual
public uprising. And so, despite the requirement of rebellion, it is
conceivable that the declaration may include areas where there may
be no actual public uprising but there are common offenses being
committed in furtherance of rebellion. That’s why even if the actual
public uprising is in Marawi, in the western side of Mindanao,
Dinagat Island in the eastern side is covered by the declaration of
the martial law because common crimes may be committed in
Dinagat Island in furtherance of rebellion in Marawi. To follow the
ruling of the SC, so the entire island had been placed (in martial
law).
Final item discussed in the case of Lagman is the matter of rebellion
vs. terrorism. Justice Leonen was discussing in his dissent that what
was committed was an act of terrorism and not rebellion. The SC
addressed that by saying that rebellion may be subsumed under
terrorism. Rebellion is one of the means to commit terrorism.
LANSANG vs. GARCIA
42 SCRA 448 (1971) – OVERRULED
(no longer true but just to compare the Lagman and this one..)
FACTS: Due to the throwing of two hand grenades in a Liberal
Party caucus in 1971 causing the death of 8 people, Marcos
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issued PP 889 which suspended the privilege of the writ of habeas
corpus. Marcos urged that there is a need to curtail the growth of
Maoist groups. Subsequently, Lansang et al were invited by the
PC headed by Garcia for interrogation and investigation. Lansang
et al questioned the validity of the suspension of the writ averring
that the suspension does not meet the constitutional requisites.
ISSUE: Whether or not the suspension is constitutional.
RULING: The doctrine established in Barcelon and Montenegro
was subsequently abandoned in this case where the SC declared
that it had the power to inquire into the factual basis of the
suspension of the privilege of the writ of habeas corpus by Marcos
in Aug 1971 and to annul the same if no legal ground could be
established. Accordingly, hearings were conducted to receive
evidence on this matter, including two closed-door sessions in
which relevant classified information was divulged by the
government to the members of the SC and 3 selected lawyers of
the petitioners. In the end, after satisfying itself that there was
actually a massive and systematic Communist-oriented campaign
to overthrow the government by force, as claimed by Marcos, the
SC unanimously decided to uphold t5he suspension of the
privilege of the Writ of Habeas Corpus.
7. Emergency Powers
Article VI, Section 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.
 Efficacy of the Declaration
As to the efficacy of the declaration, the Constitution says that the
initial declaration cannot be longer than 60 days but any extension
can be longer. That’s why in Mindanao we are still under martial law
up to 31st of December. And it is congress which will determine any
request for extension whether it is needed. Can the SC review the
grant of extension by congress? The provision says any extension
thereof so it could also be.
The declaration of martial law does not carry with it the
suspension of the privilege of the writ of habeas corpus and
vice versa. Both must have to be declared by the President. With
respect to the suspension, we all know that what is actually
suspended is not the writ itself but the privilege to be released from
detention without official charge within the standard periods under
article 125 of the RPC. The 12, 18 and 36 hrs. The suspension of
the privilege simply extends the period of extension without charge
to 72 hours because the constitution says that these persons must
be charged within 72 hours or 3 days otherwise, they would have to
be released. A suspension of the privilege does not therefore
authorize or validate indefinite detention. It does not even validate
invalid arrests, you can be arrested and detained without warrant but
subsequently charged within that 3-day window. Otherwise, that
person must have to be released. It does not authorize indefinite
detention without any official charge.
 Effects of Martial Law
As to the effects of martial law, what traditionally the effects of
martial law in the so called political law concept, in the actual theatre
of war, the executive can do anything. The martial law commander
on the ground xxx, can exercise any of the powers of government
within that so called theatre of war. That is the reality. But our
constitution, because it is a reaction to what has happened before
categorically states that:
1. The constitution is not suspended.
2. Civilian courts will continue to have jurisdiction over
civilians. Military courts are not conferred jurisdiction.
3. Legislative assemblies shall continue to function that
includes all other governmental institutions. That ideally
should happen if there is no actual hostilities or skirmishes
ongoing like what we are having in Mindanao.
The declaration or suspension will lose its effect:
1. If the President lifts it himself like what happened in
Maguindanao declaration; or
2. If congress nullifies it; or
3. If the SC, in a proper petition, revokes it; and
4. By operation of law, if the period for efficacy has lapsed
and there has been no extension, then declaration or
suspension will lose (its effectivety).
8. Contracting and Guaranteeing Foreign Loans
Article VII, Section 20. The President may contract or guarantee
foreign loans on behalf of the Republic of the Philippines 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 from the end of every quarter of the calendar year,
submit to the Congress a complete report of its decision 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.
Article XII, Section 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.
The case of CONSTANTINO vs. CUISIA (2005) discusses this
Section 20 of Art 7. Section 20 simply states that the President may
contract or guarantee foreign loans subject to the prior approval or
recommendation of the Monetary Board and subject to restriction as
may be provided for by law. So there is no question that the
President can but there must have to be prior recommendation by
the monetary board.
One of the questions raised here is that if the president pays the
debt should there be authorization from the monetary board and/or
Congress to exterminate a debt. So he can contract a loan but can
he pay the loan without congressional authorization? Because the
constitution requires that all appropriations from the public treasury
must have to be with legislation and the SC said that there is a law.
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The law on debt payment is not included in the general
appropriations act. That is to ensure that we are or the country is
compliant with its debt servicing obligation. On the manner of xxx,
the SC said even then even if there was no such law on debt
servicing or debt termination or repayment of a debt of a loan, the
fact that the constitution grants to the president that power to
contract a loan, it necessarily includes the power to pay that loan
because it defies common sense and logic that if you are authorized
to obtain one that you are not also authorized to pay up. So the
president can pay up the loan even without congressional
authorization.
CONSTANTINO vs. CUISIA
472 SCRA 505 (2005)
During the Aquino regime, her administration came up w/ a
scheme to reduce the country’s external debt. The solution
resorted to was to incur foreign debts. Three restructuring
programs were sought to initiate the program for foreign debts –
they are basically buyback programs & bond-conversion
programs). Constantino as a taxpayer and in behalf of his minor
children who are Filipino citizens, together w/ FFDC averred that
the buyback and bond-conversion schemes are onerous and they
do not constitute the loan “contract” or “guarantee” contemplated in
Sec. 20, Art. 7 of the Constitution. And assuming that the President
has such power unlike other powers which may be validly
delegated by the President, the power to incur foreign debts is
expressly reserved by the Constitution in the person of the
President. They argue that the gravity by which the exercise of the
power will affect the Filipino nation requires that the President
alone must exercise this power. They argue that the requirement of
prior concurrence of an entity specifically named by the
Constitution–the Monetary Board–reinforces the submission that
not respondents but the President “alone and personally” can
validly bind the country. Hence, they would like Cuisia et al to stop
acting pursuant to the scheme.
ISSUE: Whether or not the president can validly delegate her debt
power to the respondents.
RULING: There is no question that the president has borrowing
powers and that the president may contract or guarantee foreign
loans in behalf of this country w/ prior concurrence of the Monetary
Board. It makes no distinction whatsoever and the fact that a debt
or a loan may be onerous is irrelevant. On the other hand, the
president can delegate this power to her direct subordinates. The
evident exigency of having the Secretary of Finance implement the
decision of the President to execute the debt-relief contracts is
made manifest by the fact that the process of establishing and
executing a strategy for managing the government’s debt is deep
within the realm of the expertise of the Department of Finance,
primed as it is to raise the required amount of funding, achieve its
risk and cost objectives, and meet any other sovereign debt
management goals. If the President were to personally exercise
every aspect of the foreign borrowing power, he/she would have to
pause from running the country long enough to focus on a welter of
time-consuming detailed activities–the propriety of
incurring/guaranteeing loans, studying and choosing among the
many methods that may be taken toward this end, meeting
countless times with creditor representatives to negotiate,
obtaining the concurrence of the Monetary Board, explaining and
defending the negotiated deal to the public, and more often than
not, flying to the agreed place of execution to sign the documents.
This sort of constitutional interpretation would negate the very
existence of cabinet positions and the respective expertise which
the holders thereof are accorded and would unduly hamper the
President’s effectivity in running the government. The act of the
respondents are not unconstitutional.
Exception:
There are certain acts which, by their very nature, cannot be
validated by subsequent approval or ratification by the President.
There are certain constitutional powers and prerogatives of the
Chief Executive of the Nation which must be exercised by him in
person and no amount of approval or ratification will validate the
exercise of any of those powers by any other person. Such, for
instance, in his power to suspend the writ of habeas corpus and
proclaim martial law and the exercise by him of the benign
prerogative of pardon (mercy).
There are certain presidential powers which arise out of
exceptional circumstances, and if exercised, would involve the
suspension of fundamental freedoms, or at least call for the
supersedence of executive prerogatives over those exercised by
co-equal branches of government. The declaration of martial law,
the suspension of the writ of habeas corpus, and the exercise of
the pardoning power notwithstanding the judicial determination of
guilt of the accused, all fall within this special class that demands
the exclusive exercise by the President of the constitutionally
vested power. The list is by no means exclusive, but there must be
a showing that the executive power in question is of similar
gravitas and exceptional import.
9. Power over Foreign Affairs
a. Treaty Making
Article VII, Section 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.
We have discussed the xxx. We have mentioned the xxx office of
the president on the stages of the negotiations of the treaty in
relation to concurrence of senate requirements.
That case of VINUYA vs. ROMULO (2014) that highlights the
concept of political question, the matter of bringing up a claim
against a foreign sovereign cannot be forced on our executive or the
president because it affects foreign relations as representative of the
state in foreign relations it is still within the political discretion of the
president whether or not he would file such claim against a foreign
sovereign.
b. Deportation against Undesirable Aliens
This case of ROSAS vs. MONTOR (2015), is just a discussion to
author to exclude and deport. Exclusion is the process by which a
state can prevent the entry of a foreigner. The given is that, the entry
and stay of a foreigner in the Philippines is a matter of privilege. His
entry may be denied and if allowed entry already that person may be
ordered deported and in deportation proceedings, there is no
necessity that the foreigner must have to be convicted in a final
judgment. Whatever determination that the executive may have over
that person because his continued presence in the Philippines is
inimical to public interest would be sufficient to cause his
deportation.
Now in ROSAS, exclusion is again the act of the state thru Bureau
of Immigration to deny the entry of a foreign national. 2 days ago
there was a foreign professor who was here on transit but he got
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sick and he was supposed to or there was a request for him to be
taken out of the airport terminal for medical examination but because
of his political views, his entry has been denied even on
humanitarian grounds. He was allowed to however be examined by
a physician in one of the lounges in the airport but never to get out
of the terminal and go to a hospital for medical reason.
Deportation on the other hand involves a proclamation where a
foreigner has been allowed entry but again because of certain
violations, again, not requiring conviction by final judgment, he may
be ordered depowered or ordered to leave the country.
What comes to your mind is the case of sister fox, she has been in
the Philippines for more than 30 years as a nun in a missionary
ground involved in urban poor and other poor communities but
because she has been joining public assemblies which was or had
been critical to the Duterte administration, YOUR President ordered
her deportation. So the Bureau of Immigration Commissioner
cancelled her missionary visa and ordered her immediate
deportation. On appeal to the DOJ Sec, the order of the BI
Commissioner was reversed because in deportation proceedings, as
early as the case of QUA CHEE GAN vs. DEPORTATION BOARD
(1963), we all know that before a person is to be ordered arrested
and deported there must have to be a determination that his stay is
undesirable. He cannot be ordered deported immediately without
that determination. Upon orders of YOUR president, his visa was
cancelled without any proceedings. On what ground? Apil apil kag
rally madreha ka! So, the short of the long story was that the BI was
ordered to conduct deportation proceedings. She was able to prove
her case or cause and the result was visa is still cancelled. She was
ordered deported. But at least she still has options after the order
issued by the BI unlike the first order it was a major reaction
because nag rally rally, pahawaon! Pak cancelled dayon!
ROSAS vs. MONTOR
772 SCRA 462 (2015)
Every sovereign power has the inherent power to exclude aliens
from its territory upon such grounds as it may deem proper for its
self-preservation or public interest. In the Philippines, aliens may
be expelled or deported from the Philippines on grounds and in the
manner provided for by the Constitution, the PIA of 1940, as
amended, and administrative issuances pursuant thereto. [27]
Section 10[28] of the PIA of 1940 requires non-immigrants to
present their unexpired passports and valid passport visas to
immigration officers. Pursuant to their powers as outlined in
Section 6[29] of the PIA of 1940, the examining immigration officer
determines whether the non-immigrant is qualified to enter the
Philippines based on Section 29(a).[30] If the alien holds none of the
disqualifications as stated in Section 29, he may be admitted entry
barring other circumstances that might affect his entry. If, however,
the immigration officer determines that an alien possesses any of
the disqualifications under Section 29, the immigration officer is
authorized to issue an exclusion order.
Exclusion and deportation are formal removal procedures which
ultimately results to an alien's removal from the territory provided
for separately under Section 29 and 37 of the PIA, respectively.
The United States in Ex Parte Domingo Corypus,[31] the
Washington District Court in 1925 differentiated exclusion from
deportation in the following manner:
x x x Deporting a person who is already in the country, and
therefore enlarged, is depriving him of a privilege which he, at least
at the time, is enjoying in the United States; whereas a person
being denied the privilege to enter is not deprived of any liberties
which he had theretofore enjoyed. The gate is simply closed and
he may not enter.
Under Philippine immigration laws, exclusion is the authorized
removal of an alien by immigration officers, performing primary
inspection, or by the immigration boards of special inquiry, by
secondary inspection, of any foreigner arriving in the Philippines
who, upon inspection and prior to entry or admission, is barred by
immigration laws, rules and regulations from entering or being
admitted to the Philippines.[32] When an alien is excluded he is
immediately sent back to the country where he came from on the
same vessel which transported him, unless in the opinion of the
Commissioner of Immigration such immediate return is not
practicable or proper.[33] Under certain circumstances, when an
alien is excluded, Section 25[34] of the PIA of 1940 authorizes the
alien's detention until such time it is determined that he is qualified
for entry and/or admission.
Deportation proceedings, on the other hand, are governed by
Sections 37[35] to 39 of the PIA. We have stated that the power to
deport aliens is an act of State, an act done by or under the
authority of the sovereign power.[36] It is a police measure against
undesirable aliens whose continued presence in the country is
found to be injurious to the public good and the domestic tranquility
of the people.
12. Power of Legislation
We will discuss that. What probably is best to remember I don’t
know if you are familiar with the problem now of our budget. There
has been a deadlock as mentioned yesterday, the executive is
changing the rules on the budget proposal. They want a catch base
appropriation meaning that the appropriations must have to be
spend within a period of 1 or 2 years to complete a project. The
members of the lower house would want to continue with the
obligation based appropriation.
According to the executive, it increases the deficit (whatever that
means, that means mapobre tag samot). We all know that in the
budgetary sense, when the executive comes up with a budget
proposal, not all of that amount is funded it still has to be raised as
the year progressed that’s why there are corresponding revenue
proposals in the budget proposal. That’s why we are going to
experience another TRAIN and it will affect your school, hospital.
Karon gas pa lang ug kuryente. Gamay pa lang.
In today’s news, the plan of the executive if they will take the dare of
the lower house is they are willing to take a re-enacted budget. So
they approved GAA 2018 will be used in 2019. My question is this,
what has been approved in 2018. So if you’re taking about NOE
that’s okay because what is to be paid this year will necessarily be
paid next year in terms of salaries and expenses. But what about
projects? If in 2018 were taking about 300 km of roads in Luzon, and
it is re-enacted in 2019 where can they use that? Because the
appropriation says in Luzon. How could they make use of that if the
budget is re-enacted? It cannot be anyone be like PDAF it’s a lump
sum fund, there must have to be a specification on which project this
particular amount should be spent on. So if that has been done and
accomplished this year, what is the basis for using that next year for
some other similar project?
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13. Immunity from Suits
* Editor’s Note: The following topics were not discussed. Provided
below are the provisions of the law as stated in the syllabus.
2. Vice-President
a. Qualifications, Election, Term and Oath
Article VII, Section 3. There shall be a Vice-President who shall
have the same qualifications and term of office and be elected with,
and in the same manner, as the President. He may be removed from
office in the same manner as the President.
The Vice-President may be appointed as a Member of the Cabinet.
Such appointment requires no confirmation.
Article VII, Section 4. The President and the Vice-President shall
be elected by direct vote of the people for a term of six years which
shall begin at noon on the thirtieth day of June next following the day
of the election and shall end at noon of the same date, six years
thereafter. The President shall not be eligible for any re-election. No
person who has succeeded as President and has served as such for
more than four years shall be qualified for election to the same office
at any time.
No Vice-President shall serve for more than two successive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of the service for the
full term for which he was elected.
Unless otherwise provided by law, the regular election for President
and Vice-President shall be held on the second Monday of May.
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province 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 the election,
open all the certificates in the presence of the Senate and the 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 the votes.
The person 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, one of them shall forthwith be chosen by the vote
of a majority of all the Members of both Houses of the Congress,
voting separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the
purpose.
Article VII, Section 5. Before they enter on the execution of their
office, the President, the Vice-President, or the Acting President
shall take the following oath or affirmation:
"I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice-President or
Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. So help me God." (In
case of affirmation, last sentence will be omitted.)
b. Privilege and Salary
Article VII, Section 6. The President shall have an official
residence. The salaries of the President and Vice-President shall be
determined by law and shall not be decreased during their tenure.
No increase in said compensation shall take effect until after the
expiration of the term of the incumbent during which such increase
was approved. They shall not receive during their tenure any other
emolument from the Government or any other source.
c. Prohibitions
Article VII, Section 13. The President, Vice-President, the Members
of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure,
directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their
office.
The spouse and relatives by consanguinity or affinity within the
fourth civil degree of the President shall not, during his tenure, be
appointed as Members of the Constitutional Commissions, or the
Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-
owned or controlled corporations and their subsidiaries.
Article VII, Section 3. xxx
The Vice-President may be appointed as a Member of the Cabinet.
Such appointment requires no confirmation.
d. Succession
Article VII, Section 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 confirmation by a majority vote of all the Members of
both Houses of the Congress, voting separately.
e. Removal
Article XI, Section 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 of public trust. All other public officers and
employees may be removed from office as provided by law, but not
by impeachment.
f. Functions
1. Right of Succession
Article VII, Section 8. In case of death, permanent disability,
removal from office, or resignation of the President, the Vice-
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President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or
resignation of both the President and Vice-President, the President
of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or
Vice-President shall have been elected and qualified.
The Congress shall, by law, provide who shall serve as President in
case of death, permanent disability, or resignation of the Acting
President. He shall serve until the President or the Vice-President
shall have been elected and qualified, and be subject to the same
restrictions of powers and disqualifications as the Acting President.
Article VII, Section 11. Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits
to them a written declaration to the contrary, such powers and duties
shall be discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to
the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice-President
shall immediately assume the powers and duties of the office as
Acting President.
Thereafter, when the President transmits to the President of the
Senate and to the Speaker of the House of Representatives his
written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all
the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of
Representatives, their written declaration that the President is
unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
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.
2. Membership in Cabinet
Article VII, Section 3. xxx
The Vice-President may be appointed as a Member of the Cabinet.
Such appointment requires no confirmation.
August 22, 2018 – Cyndall Jardinel
C. THE JUDICIAL DEPARTMENT
1. The Supreme Court
a. Composition
Article VIII, Section 4.
1. The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence
thereof.
2. All cases involving the constitutionality of a treaty, international
or executive agreement, or law, which shall be heard by the
Supreme Court en banc, and all other cases which under the
Rules of Court are required to be heard en banc, including
those involving the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with the
concurrence of a majority of the Members who actually took
part in the deliberations on the issues in the case and voted
thereon.
3. Cases or matters heard by a division shall be decided or
resolved with the concurrence of a majority of the Members
who actually took part in the deliberations on the issues in the
case and voted thereon, and in no case without the
concurrence of at least three of such Members. When the
required number is not obtained, the case shall be decided en
banc: Provided, that no doctrine or principle of law laid down by
the court in a decision rendered en banc or in division may be
modified or reversed except by the court sitting en banc.
SC Resolution No. 2-89
CIRCULAR NO. 2-89 February 7, 1989
SUPREME COURT CIRCULARS AND ORDERS
TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX
APPEALS, REGIONAL TRIAL COURTS, METROPOLITAN TRIAL
COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT
TRIAL COURTS, SHARI'A DISTRICT COURTS AND SHARI'A
CIRCUIT COURTS, ALL MEMBERS OF THE GOVERNMENT
PROSECUTION SERVICE, AND ALL MEMBERS OF THE
INTEGRATED BAR OF THE PHILIPPINES.
SUBJECT: GUIDELINES AND RULES IN THE REFERRAL TO THE
COURT EN BANC OF CASES ASSIGNED TO A DIVISION.
1. The Supreme Court sits either en banc or in Divisions of three,
five or seven Members (Sec. 4[1],Article VIII, 1987 Constitution). At
present the Court has three Divisions of five Members each.
2. A decision or resolution of a Division of the Court, when concurred
in by a majority of its Members who actually took part in the
deliberations on the issues in a case and voted thereon, and in no
case without the concurrence of at least three of such Members, is a
decision or resolution of the Supreme Court (Section 4[3]. Article
VIII, 1987 Constitution).
3. The Court en banc is not an Appellate Court to which decisions or
resolutions of a Division may be appealed.
4. At any time after a Division takes cognizance of a case and before
a judgment or resolutions of a Division may refer the case en
consulta to the Court en banc which, after consideration of the
reasons of the Division for such referral may return the case to the
Division or accept the case for decision or resolution.
4a. Paragraph [f] of the Resolution of this Court of 23
February 1984 in Bar Matter No. 205 [formerly item 6, en
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banc Resolution dated 29 September 1977], enumerating the cases
considered as en banc cases, states:
f. Cases assigned to a division including motions for
reconsideration which in the opinion of at least three (3) members
merit the attention of the Court en banc and are acceptable by a
majority vote if the actual membership of the Court en banc.
5. A resolution of the Division denying a party's motion for referral to
the Court en banc of any Division case, shall be final and not
appealable to the Court en banc.
6. When a decision or resolution is referred by a Division to the
Court en banc, the latter may, in the absence of sufficiently
important reasons, decline to take cognizance of the same, in which
case, the decision or resolution shall be returned to the referring
Division.
7. No motion for reconsideration of the action of the Court en
banc declining to take cognizance of a referral by a Division, shall be
entertained.
8. This Circular shall take effect on March 1, 1989.
Composition of the Supreme Court is found in Resolution no. 2- 89,
it’s an old resolution but still a good law, this is a resolution which
reminds us that even if the Supreme Court sits in division, there is
still one Supreme Court; that the Supreme Court en banc is not an
appellate court, reviewing court of a division.
The SC En Banc can accept a case referred by a division if the
conditions are met:
1. There must be no resolution yet on the issue in a
division;
2. The division by majority vote has resolved to refer the
case for eventual resolution or decision through the
court en banc;
3. The court en banc by majority must have to accept
the referral. Only then that the division case can be
resolved finally by the court en banc;
4. The decision to accept or not to accept the referral by
the division by the court en banc is not reviewable.
b. Appointments and Qualifications
Article VIII, Section 7.
1. No person shall be appointed Member of the Supreme Court or
any lower collegiate court unless he is a natural-born citizen of
the Philippines. A Member of the Supreme Court must be at
least forty years of age, and must have been for fifteen years or
more, a judge of a lower court or engaged in the practice of law
in the Philippines.
Article VIII, Section 8.
xxx
5. The Council shall have the principal function of recommending
appointees to the judiciary. It may exercise such other functions
and duties as the Supreme Court may assign to it.
Article VIII, Section 9. The Members of the Supreme Court and
judges of lower courts shall be appointed by the President from a list
of at least three nominees preferred by the Judicial and Bar Council
for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issued the appointment
within ninety days from the submission of the list.
There are several cases here, we have the old case of DE CASTRO
vs. JBC (2010), this case has changed the ruling in IN RE:
VALENZUELA (1998) that the prohibition in the midnight
appointments does not apply to judiciary.
It also resolved that the 90-day period to fill in the vacancy in the
Supreme Court is mandatory, for lower-collegiate courts and lower
court it shall be directory.
DE CASTRO vs. JBC
615 SCRA 666
618 SCRA 639 (2010)
The 90-day for the Supreme Court to fill it up is to be counted from
the occurrence of the vacancy. That being said, if there is an
impending vacancy because of retirement age or due to retirement,
the JBC must have to process the procedure to fill it up so that the
90-day period shall not be violated, so to speak, to give the
President enough time to go over the list of nominees to the
vacancy.
For the lower collegiate courts and lower courts, the 90-day period
shall be counted from the time the list of nominees after vetting by
the JBC shall have been submitted to the President.
You have to include the case of JARDELEZA vs. SERENO
(2014).There have been several issues in this case.
JARDELEZA vs. SERENO
733 SCRA 729 (2014)
ISSUE #1: What is the role of the Supreme Court with respect to the
JBC.
RULING: While JBC is created by the Constitution, it is under the
overall supervision of the Supreme Court, and so, while the JBC has
the power to promulgate its own rules, the Court under the power of
supervision can make sure or can exercise authority to ensure that
the JBC is faithfully compliant with its rules of procedure.
The issue on qualification which the JBC must have to consider, in
the Jardeleza ruling, there was an issue on integrity, there was the
rule in the JBC which was referred to as the unanimity rule.
Constitutionally, an applicant to the judiciary must have proven
competence, integrity, probity and independence, if there is a
question on integrity, the JBC has a rule on unanimity wherein the
members of the JBC must have to vote by unanimous vote on the
issue - integrity.
The problem with the case of Jardeleza was that there was a belief
that complaints raised by Sereno on his supposed extra-marital
affairs and insider-trading. The initial complaint with respect to his
nomination to the Supreme Court post as an applicant with the JBC
was on the supposed procedural tactic he took when he was the
government’s lawyer in case. It involves professional handling of a
case issue, where supposedly there was a variance in opinion as to
what the government’s position should be.
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JARDELEZA vs. SERENO
ISSUE #2: Could he (Jardeleza) be granted his right to due
process? (Because apparently the JBC did not want to hear his side
of the controversy.)
RULING: The applicability of the unanimity rule will only apply if
there is a question on integrity. As to the decision on what the
procedure for handling of a case where the Republic should have
been, that is not a question of integrity because lawyers necessarily
would have difference in opinion as to the strategy or tactic that
should be taken in handling a case.
But on the supposed or alleged extra-marital affair and insider-
trading, that would go in to the question of integrity and therefore,
the unanimity rule must have to apply. However, because it was
belatedly raised, they could not use the unanimity rule to vote on the
first issue on the legal strategy which he undertook as the lawyer of
the Republic.
ISSUE #3: On the violation of due process.
RULING: The procedure in the JBC is neither quasi-judicial in
character and so there is, ordinarily, no violation to due process if an
applicant is not heard.
But they likened it to a proceeding of disbarment or suspension filed
against a lawyer, which we all know in legal ethics is a species of its
own, where there is also an “opportunity” given to the lawyer-
respondent in an administrative case to disprove the allegations
against him. So if an applicants’ integrity or qualification is
questioned before the JBC, it is just reasonable and sound, as a
principle that the applicant must be heard.
Of course, the due process here is not a trial type proceedings
where the applicant is allowed to cross examine, present his
evidence but he must have to be heard on such issue of any
question on his qualification, because an applicant must also be
allowed to prove that he possesses all of the qualifications and none
of its disqualification.
ISSUE #4: Can the JBC be subjected to a mandamus suit to compel
the inclusion of Jardeleza as one of the applicants or nominees, or
to compel it to give in a supposed due process right.
RULING: The duty of JBC to nominate is discretionary. Therefore,
mandamus does not apply against it. Nonetheless, because the JBC
has its own rules and if it has violated its own rules respecting the
vetting of an applicant, it can be corrected by a petition for certiorari
because that would be in grave abuse of its discretions.
VILLANUEVA vs. JBC
755 SCRA 182 (2015)
This case involves rule making power also of the JBC. The JBC has
promulgated or issued the rule requiring 5-years of tenure as MTC
judge before you can be eligible for nomination for a post in the
Regional Trial Court. Villanueva, an MTC judge somewhere in North
Cotabato, questioned the standards set saying that, it would be in
violation of his rights, equal protection at the very least.
The Supreme Court said that for so long as the minimum
qualifications provided for in the Constitution are not violated, the
JBC can impose additional standards or set additional
standards for nomination in a judicial posts.
The case of AGUINALDO vs. AQUINO III (2016 & 2017), we have
discussed that already, and finally in that case of JARDELEZA vs.
SERENO (2014), the Supreme Court reiterated the rule that the
Supreme Court supervises the JBC.
The JBCs’ duty to recommend or nominate applicants to a post is
not absolute; the JBC cannot do away with the constitutional
requirements. While in VILLANUEVA vs. JBC (2015), it can add
certain reasonable standards but it cannot do away with what the
Constitution has required as a minimum.
That being said the Supreme Court in Sereno, decided that Sereno
has failed the qualification of integrity; the material representation
that the refusal to submit the SALN to the JBC should not have
made her an applicant or to be considered as a nominee in the
Supreme Court post. The JBC therefore gravely abused its
discretion when despite lack of qualification, or at least
submission of the SALN, as required, she was still included in
the vetting and thereafter in the shortlist.
As to the issue of integrity, the Supreme Court said that the repeated
failure, to submit the SALN goes to the very question of integrity and
therefore she lacks the qualification of integrity at the time she
applied for and was appointed to a position in the Supreme Court.
One of the side issues discussed publicly, not in the decision,
because she was removed as Chief Justice was: Could she be
retained as an Associate Justice? Because remember she was
removed by quo-warranto as Chief Justice.
If you remember in the original, in the first decision of DE CASTRO
vs. JBC (2010), there was a discussion, though not resolved but
merely an obiter: If a sitting Justice of the Supreme Court applies for
the Chief Justice position, should that associate justice sitting, be
subjected to the vetting process of the JBC?
The question is being raised because when that person was
appointed to the seat as an associate justice, he/she must surely
vetted and that she continue, and that she has all the qualifications
and none of the disqualification. At some later day, when he/she
would want to be appointed as Chief Justice, the question was, why
should he undergo the same vetting process?
Two questions are asked:
1. Is the Chief Justice position a new position?
2. Second, is the justice no longer qualified as of today,
that’s why he has to be vetted again?
That was discussed though not raised as an issue and not answered
in the De Castro ruling. But if you go by the Sereno ruling, it will
leave that question that at some other point in time, if that issue of
integrity or probity or independence, will be raised at some other
time, but will relate back at the time of appointment, then probably a
sitting justice can be removed by a quo-warranto proceedings.
Those are the cases in relation to your appointment and
qualifications.
c. Salary
Article VIII, Section 10. The salary of the Chief Justice and of the
Associate Justices of the Supreme Court, and of judges of lower
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courts shall be fixed by law. During the continuance in office, their next year’s appropriation that’s why it’s never in the judicial
salary shall not be decreased. branch.

Salary cannot be decreased but can be increased and this can be
effective immediately. Now the items on salaries, tenure, removal,
fiscal autonomy are part of what is known collectively as
SAFEGUARDS OR CONSTITUTIONAL SAFEGUARDS
MAINTAIN THE INDEPENDENCE OF THE JUDICIARY.
1) Fiscal autonomy
Constitutionally, the judiciary enjoys fiscal autonomy.
2) Principle of non-diminution of salaries
3) Impeachment/Removal
Then you have the impeachment, of course that refers to the
removal and now we know that impeachment is not the only way to
TO remove a sitting justice, there is also a quo-warranto proceeding.
4) Principle of Judicial Independence
Then you have the so-called principle of judicial independence and
there are two aspects – the individual and the institutional. In judicial
independence, the courts are supposed to be free from unfair
criticisms.

In relation to fiscal autonomy, there’s also a provision there, the
NON-DIMINUTION AND AUTOMATIC RELEASE OF
APPROPRIATIONS.
In that old case of your Civil Service Commission vs. Department,
the Supreme Court clarified that even if the government has a
budgetary shortfall, that not to all the appropriations, under the
General Appropriations Act (GPA) are readily available, while
everybody suffers as soon as there is money availing, the judiciary
or those enjoying fiscal autonomy has a first crack at it.
IN RE: TULFO
Court decisions can be criticized provided they are done in
respectful language, directed to the merits, of course it is not sub
judice and it is not designed to ridicule the members of the court or
the court itself. This is to ensure that individually, judges are free to
decide the cases regardless of public opinion and institutionally to
free the courts from the bar of the public opinion.
5) Open Justice Policy

This is something to do with the so called “no-report-no-release
policy” of the Department of Budget and Management. That is not
applicable to the Supreme Court or the judiciary and all those
enjoying fiscal autonomy because they have the rights or they enjoy
the benefit of automatic release of appropriations. They must not be
burdened with asking the executive branch for the release of the
appropriations granted to them.
The last safeguard there is open justice policy. While there is
judicial independence, there is also a corresponding obligation of the
courts to ensure that there be no arbitrariness. That is the reason
why courts can be fairly be criticized for their conduct. The emphasis
is for fair criticisms.
SUMMARY

Now with respect to the appropriations in the current year, it must The following are the Constitutional Safeguards to maintain the
have to be equal to the previous one or more. It cannot be Judicial Independence of the Judiciary:
decreased because there’s a prohibition on that – the non-
diminution. This is to safeguard their independence from the political 1. Fiscal autonomy
branches of government. 2. Non-diminution of salary
3. Impeachment/Removal
This is exactly the reason why, if you remember when the question 4. Principle of Judicial Independence
on the constitutionality of the DAP was under consideration before 5. Open Justice Policy
from the Supreme Court, there was a letter coming from the Chief
g. Jurisdiction
Justice of the Supreme Court asking for the President’s release of
funds for rehabilitation or construction of some court houses.
g. Judicial Power
Commentaries or opinion at that time was to be effect that how could
the Supreme Court resolve to declare the DAP unconstitutional
What are the cases over which the Supreme Court has jurisdiction
when then institution itself, meaning the judiciary had asked for
over on en banc and division cases?
“transfer of funds” from the executive.
En banc Cases:
Most do not know that the expense or appropriations for court
houses or court buildings in the country are not within the judiciary,
1. All issues which are constitutional;
precisely because of the constitutional prohibition on non-diminution 2. When there is a petition questioning the commander in
of the appropriations. If you were to include that in the chief powers of the President;
appropriations for the judiciary then that amount cannot be taken out
in the subsequent years even if the court houses or court buildings
3. When the division vote is not met;
are already constructed.
4. When there is reversal of a doctrine. Whether rendered of
By practice it has been under the executive, usually under the a division or by en banc, it can only be reversed by the
Department of Justice, if not with DPWH. Because with those court en banc;
departments, if the expenditure in the project has already been
completed it can be taken out of the budget in the ensuing year. 5. When the issue is with respect to the its exercise as
Unlike in the judiciary that amount could never be taken out in the presidential electoral tribunal, it’s an en banc decision;

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6. In administrative cases when the penalty is dismissal,
disbarment or more than one year suspension or more
than 10 thousand pesos in fine or both, any penalty less
than that, it can be heard and decided by a division.
The other cases over which the Supreme Court exercises review
powers:
- Section 5(2), Article VIII on the power of the Supreme
Court to reverse, review, revise, modify or affirm, and
there is a listing there, there’s nothing much that’s
changed.
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may provide, final judgments and
orders of lower courts in:
a. All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is
in question;
b. All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation thereto;
c. All cases in which the jurisdiction of any lower court is in
issue;
d. All criminal cases in which the penalty imposed is
reclusion perpetua or higher;
e. All cases in which only an error or question of law is
involved.
h. Principle of Hierarchy of Courts
The only thing perhaps to remember is this concept of HIERARCHY
OF COURTS. When the Supreme Court has exercised or is
exercising concurrent jurisdiction with other courts, the principle of
hierarchy of courts dictates that parties should first seek the
jurisdiction of a lower court. This is to, not to add to the clogged
dockets of the Supreme Courts and to give lower courts the first
crack at its subject to the eventual decision or review of the
Supreme Court.
The only exemption there is the CONCEPT OF
TRANSCENDENTAL IMPORTANCE. Now please do not confuse
the transcendental importance in judicial review where even if the
conditions are not met, if the issue is of transcendental importance,
courts may exercise judicial review.
In transcendental importance exception for hierarchy of courts, it
does not strictly refer to judicial review exercise. This can be
ordinary petitions by which the Supreme Court exercises concurrent
jurisdiction with lower courts. It can go directly to the Supreme Court
if there is, or if the issue is of transcendental importance. In that
case, the party petitioner must have to have real interest or he
must be a real party of interest to be able to file that ordinary
petition, not necessarily in the concept of judicial review.
h. Congressional Power Over Jurisdiction of Supreme Court
Article VIII, Section 2. 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.
Article VI, Section 30. No law shall be passed increasing the
appellate jurisdiction of the Supreme Court as provided in this
Constitution without its advice and concurrence.
For obvious reasons, if it is original jurisdiction, there can be no
legislation that could affect it because those are called in the
Constitution. For appellate jurisdiction, we have the old case of
FABIAN vs. DESIERTO (1998).
FABIAN vs. DESIERTO
295 SCRA 470 (1998)
The Supreme Court said that while Congress can by law provide for
cases under the review powers of the SC, it must have to give its
prior consent for concurrence, absent that, that law will be
unconstitutional.
Now if you remember that case of CARPIO-MORALES vs. CA on
the BINAY RULING, there was also a discussion on the extent of the
power of Congress over jurisdiction of courts generally. That when
respect to lower courts, or appellate jurisdiction of the Supreme
Court, Congress can legislate, granting court’s jurisdiction or review
appellate jurisdiction of the Supreme Court in certain cases, subject
to its prior concurrence or consent.
Nonetheless, the authority of Congress is only with respect to the
jurisdiction of courts, with respect to ancillary remedies, these are all
under the rule making power of the Supreme Court. Congress has
no authority over these rules.
It has been made clear, citing that case of ECHEGARAY vs.
SECRETARY (1999), the change in phraseology from the ‘35, ‘73 to
the‘87 Constitution regarding the rules that the Supreme Court
made, enact and issue or promulgate while in the two previous
constitutions, the Congress can legislate on the same subject matter
on the rules in the 87, that proviso has been taken out, to emphasize
that Congress can no longer legislate on the same matter, subject to
the rules of the Supreme Court.
So to limit the power of issuing a temporary restraining order or
bringing judgement only to the Supreme Court and no other court for
that matter by legislation was declared to be unconstitutional.
Court of Appeals retains the power to issue ancillary remedy
because they are just preliminaries, attached to the main action over
which the court has by law, given jurisdiction over.
i. Administrative Powers
1. Supervision of Lower Courts
Most of these cases will tell you that the office of the Ombudsman
has no authority over judges and other court personnel, with respect
to administrative liabilities in relation to their official duty. The
Supreme Court has the power of supervision over them and
therefore, any administrative case that involve these officials and
members of the judicial department are supposed to be with or at
the jurisdiction of the Supreme Court and not with the Office of the
Ombudsman.
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The question there is of criminal cases: Can they be subjected to
criminal complaints filed before the Ombudsman?
Because we all know that under RA 6770, the Ombudsman also has
preliminary investigation powers over criminal complaints against
any public official or employee for any malfeasance, misfeasance or
nonfeasance. If it has nothing to do with their administrative
duty, it can proceed independently with the OMB.
What felonies or crimes are defined by a law which has something to
do with their duty as judges or members? Could you imagine a
felony? Is there a felony like maliciously rendering an unlawful order
or judgement? Can that proceed independently in a criminal
complaint filed with the Office of the OMB? (Might come out of the
exam.)
2. Temporarily Assign Judges to Other Stations in the
Public Interest
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
3. Assign temporarily judges of lower courts to other stations as
public interest may require. Such temporary assignment shall
not exceed six months without the consent of the judge
concerned.
Nothing is much changed there. We all know that judges are
appointed to a specific post but because there are certain sala or
branches which do not have applicants, therefore there are no
judges appointed there. Justice for that matter is not extended, and
therefore Supreme Court may temporary assign judges to other
stations.
3. Order a Change of Venue or Place of Trial to Avoid
Miscarriage of Justice
Article VIII, Section 5. The Supreme Court shall have the following
powers:
4. Order a change of venue or place of trial to avoid a miscarriage of
justice.
This is more or less done in criminal cases. It’s unlike in civil cases
where we all know that venue can be agreed upon. In criminal cases
venue is jurisdictional. It must have to be filed in the territorial
jurisdiction where the crime was committed to ensure that there are
available witnesses, both for prosecution and defense, specially.
But in cases where there is possibility of prosecution witnesses or
defense witness is not able to testify out of fear or may be in
disgrace of justice then the Supreme Court upon motion of either
party may order the change of venue and it would be tried in
some other courts. I think the longest running now is the Ampatuan
and the Maguindanao Massacre because it has continued to be tried
in Quezon City.
4. Discipline of Judges
Article VIII, Section 11. The Members of the Supreme Court and
judges of the lower court shall hold office during good behavior until
they reach the age of seventy years or become incapacitated to
discharge the duties of their office. The Supreme Court en banc
shall have the power to discipline judges of lower courts, or order
their dismissal by a vote of majority of the Members who actually
took part in the deliberations on the issues in the case and voted in
thereon.
5. Appointment of Officials and Employees of Entire
Judiciary
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
6. Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.
j. Rule Making
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
5. Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts,
the admission to the practice of law, the integrated bar, and legal
assistance to the under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall
not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court.
We have discussed that already.
k. No Quasi-judicial and Administrative Work of Judges
Article VIII, Section 12. The Members of the Supreme Court and of
other courts established by law shall not be designated to any
agency performing quasi-judicial or administrative function.
This is just to make sure that judges or positions in administrative
work by judges will not fall for review before the courts. This is the
reiteration of the principle that they must have to continue doing
judicial work.
l. Report on the Judiciary
Article VIII, Section 16. The Supreme Court shall, within thirty days
from the opening of each regular session of the Congress, submit to
the President and the Congress an annual report on the operations
and activities of the Judiciary.
m. Manner of Sitting and Votes Required
We follow what is known as the SHIFTING MAJORITY. There must
have to be a quorum for the court to be able to conduct business. A
majority of those constituting the quorum can render a valid
decision. For division cases however, there is a minimum number
of three votes in every case.
We all know that the constitution allows the Supreme Court to sit in
division of three, five or seven members. As of the present, they sit
in divisions of five members. So a quorum of five is three, and no
case shall there be a vote less than three. There must have to be
three votes to render a decision.
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Who shall be counted for purposes of determining quorum? Those
who did not take part, are they included? Those who inhibited, are
they included?
For purposes of determining quorum, Article VIII, Sec. 4.
Article VIII, Section 4.
1. The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in
division of three, five, or seven Members. Any vacancy shall be filled
within ninety days from the occurrence thereof.
2. All cases involving the constitutionality of a treaty, international or
executive agreement, or law, which shall be heard by the Supreme
Court en banc, and all other cases which under the Rules of Court
are required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential decrees,
proclamations, orders, instructions, ordinances, and other
regulations, shall be decided with the concurrence of a majority of
the Members who actually took part in the deliberations on the
issues in the case and voted thereon.
3. Cases or matters heard by a division shall be decided or resolved
with the concurrence of a majority of the Members who actually took
part in the deliberations on the issues in the case and voted thereon,
and in no case without the concurrence of at least three of such
Members. When the required number is not obtained, the case shall
be decided en banc: Provided, that no doctrine or principle of law
laid down by the court in a decision rendered en banc or in division
may be modified or reversed except by the court sitting en banc.
n. Requirements as to Decision
Article VIII, Section 13. The conclusions of the Supreme Court in
any case submitted to it for the decision en banc or in division shall
be reached in consultation before the case the case assigned to a
Member for the writing of the opinion of the Court. A certification to
this effect signed by the Chief Justice shall be issued and a copy
thereof attached to the record of the case and served upon the
parties. Any Member who took no part, or dissented, or abstained
from a decision or resolution must state the reason therefor. The
same requirements shall be observed by all lower collegiate court.
Article VIII, Section 14. No decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law
on which it is based.
No petition for review or motion for reconsideration of a decision of
the court shall be refused due course or denied without stating the
legal basis therefor.
Two general requirements are the formal and substantive.
When we say formal, the first requirement for the Supreme Court
and the lower collegiate courts is the requirement on certification.
As we have mentioned this in relation to the discussion of the
executive privilege.
The consultation or prior consultation before coming up with a
decision, that is the example of the privilege where it cannot be
made public. Constitution requires that the collegial bodies, there
must have to be a prior consultation before it is assigned to the
member of the court to write or penned a decision. There is a
requirement, that there must have to be certification of defect(?).
However lack of that certification will not render the decision invalid
because that is just a matter of form.
With respect to the substance, the constitution requires that the
decision must express clearly and distinctly the facts and the law on
which it is based. There is no specific requirement on how it should
be written. The constitution simply requires that the parties will know
what the court has believed to be the facts that have been proven
and what law has been applied to the set of facts which the court
has admitted to have been proven. So that it will testify the decision
or judgment rendered on.
There is no requirement to restate or state the facts and law if it
refers to a resolution denying a petition or a motion for
reconsideration. What is required is only the legal basis for the
immediate denial of the petition.
In real practice you will be able to see that all petitions filed before or
appellate courts or Courts of Appeals or the Supreme Court, not
every petition is decided on the merits. There are a lot which
are dismissed out right and they are dismissed because you
failed to with some rules.
So for example there is already a rule on e-filling. If you file a petition
before the Supreme Court, you must attach an e-copy of a petition
including all an excess there to submit in a CD form or in USB
format.
There is a requirement of issuing or attaching a certification, that as
counsel you have caused the… how do call that? To turn it to a CD
format and that you have not changed anything. If you don’t comply
with that, your petition which is about of, let just say, a hundred
pages, you just waste so much money. It will be dismissed for failing
to comply with that. So there’s no need to discuss the state the facts
or mention the laws as applied because it has not been given due
course, only the legal basis.
With respect to a motion for reconsideration resolution, if it is denied
then there is no need to restate the facts and/or the law on which it
is based because the decision on resolution which a subject the
motion for reconsideration is deemed affirmed anyway. That is
where you are informed already on why the court has come up with
such resolution.
However, if the motion for reconsideration is granted, the court
is required to restate the facts and the new law now, which it is
based to explain to the parties why the court has taken a
different stance from the original decision which has been
reversed because the motion for reconsideration was granted.
It is not enough that when it is granted that there be no restatement
of facts and all of the new law on which the new decision has been
issued. This is a requirement of due process to let the parties
know how the courts arrived to its conclusion and to give the parties
the possibility of intelligently signing errors on appeal in case they
would want the decision to be dismissed.
o. Mandatory Period for Deciding Cases
Article VIII, Section 15.
1. All cases or matters filed after the effectivity of this Constitution
must be decided or resolved within twenty-four months from
date of submission for the Supreme Court, and, unless reduced
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by the Supreme Court, twelve months for all lower collegiate
courts, and three months for all other lower courts.
2. A case or matter shall be deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or
memorandum required by the Rules of Court or by the court
itself.
3. Upon the expiration of the corresponding period, a certification
to this effect signed by the Chief Justice or the presiding judge
shall forthwith be issued and a copy thereof attached to the
record of the case or matter, and served upon the parties. The
certification shall state why a decision or resolution has not
been rendered or issued within said period.
4. Despite the expiration of the applicable mandatory period, the
court, without prejudice to such responsibility as may have
been incurred in consequence thereof, shall decide or resolve
the case or matter submitted thereto for determination, without
further delay.
Article VII, Section 18. xxx
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.
The Supreme Court has 24 months; lower collegiate courts have 12;
and lower courts have 3 months. These periods are supposed to be
counted from the time the case or incident is submitted for resolution
and for decision.
Are these periods mandatory or directory?
With respect to the decisions or resolutions themselves these
periods are directory. Decisions or resolutions issued beyond
these periods remains to be valid for so long as they are valid to
begin with.
However, these are mandatory with respect to the
administrative liabilities of justices or judges concerned. If they
failed to render such decision or resolution within the mandated
periods they can be or they may be subjected to administrative
liabilities.
There have been lot of cases where justices of lower collegiate
courts not the Supreme Court and judges of lower court have been
either dismissed or administratively fined for failing to comply with
these periods. So as to them, these are mandatory.
Of course we have yet to see the Supreme Court penalizing
themselves for not resolving cases if you are not of transcendental
importance. Because if you are a person in a transcendental
importance, they will resolve your case with dispatch but if you are
not that person 24 months will take 24 years.
5. Court Martial
If you remember the case of GARCIA vs. EXECUTIVE
SECRETARY (2012),
GARCIA vs. EXECUTIVE SECRETARY
ISSUE: Is a Court Martial a court in the constitutional concept?
RULING: YES. Not that it is a court which exercises judicial power
per se, but it is a court for purposes of applying the prohibition on
members of congress appearing before court or tribunal.
So if you are member of congress, you cannot personally appear
and represent the respondent military officer personnel in a court
martial because for purposes of that prohibition a court martial
is technically considered a court.
Is a respondent in the court martial entitled to the usual due process
rights in courts?
Due process, yes; bail, no. It is quite clear that bail is not
extended to respondents or accused military officer personnel
in a court martial. All the others are claimable.
August 23, 2018 – Yasmine Ibay
D. THE CONSTITUTIONAL COMMISSIONS
 General Provisions
 Qualifications in General
1. Member of the Philippine Bar - Must be a trial lawyer
2. Engaged in the practice of law - Any activity of a
member of a Philippine bar which would require him to
use any of his legal skill, expertise, and knowledge is
considered to be in the practice of law
LAME DUCK DISQUALIFICATION
It is a one-year ban. If a person has ran and lost in an election, he
cannot be appointed to any government position within one year
from that election.
If a person has run and won, technically he can be appointed. But
for purpose of the Commissions, there is an EXTENDED LAME
DUCK DISQUALIFICATION. They must not have been candidates
in the immediately preceding election. This is regardless if whether
they have won.
The prohibition is:
 On the act of running as a candidate and
 It extends to the period immediately preceding the
election regardless of whether it is one year or more
How do we treat barangay elections?
National election – every 3 years. If you are a candidate in 2016, you
cannot be eligible for appointment until after the 2019 elections.
What if there is barangay elections in the middle? Will that brgy
election break the period of the extended lame duck disqualification?
(no answer)
 Appointment and Reappointment; In General
It is a discussion on constitutional safeguards to strengthen or
maintain the independence of the Commissions.
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ROTATIONAL PLAN (Rotation)
Constitutionally, those who are appointed to the positions under the
Constitution are appointed for a staggered but fixed term.
Three (3), five (5) and seven (7) year terms, they are considered full
terms.
There can be no reappointment in any case. We are long gone
beyond the 1987 Constitution. In the 1987, there was an allowance
that if you were serving as a Commissioner prior to the efficacy of
the 1987 Constitution, then you are reappointed under the new
Constitution, you can do so. Provided that, the term before the
efficacy of the 1987 Constitution and thereafter will not exceed the
fixed term (3, 5, or 7) as the case may be.
But thereafter, the subsequent appointees can only be appointed
once and for a fixed term of 7 years.
The appointing authority cannot lessen the term because that will
violate the rotational plan.
This is the only plan that would strengthen the independence of the
commissions because no President can appoint all the members of
the Commission at the same time except for those initially
appointed.
 Prohibition on Acting or Temporary Appointments
There is a prohibition on acting or temporary appointments. Only a
permanent and regular appointment of the commission can ensure
the independence of the Commissioners.
Reason for the Prohibition: They will not fear of being removed
from office if they decide the case against the appointing authority
because they are only appointed there temporarily.
BRILLANTES vs. YORAC
G.R. No. 93867; December 18, 1990
FACTS: The petitioner is challenging the designation by the
President of the Philippines of Associate Commissioner Haydee B.
Yorac as Acting Chairman of the Commission on Elections, in
place of Chairman Hilario B. Davide.
The petitioner contends that the choice of the Acting Chairman of
the COMELEC is an internal matter that should be resolved by the
members themselves and that the intrusion of the President of the
Philippines violates their independence. No designation from the
President of the Philippines is necessary.
ISSUE: WON the President can make a temporary appointment for
the Acting Chairman of the COMELEC.
RULING: NO. Article IX-A, Section 1, of the Constitution expressly
describes all the Constitutional Commissions as "independent."
Although essentially executive in nature, they are not under the
control of the President of the Philippines in the discharge of their
respective functions. Each of these Commissions conducts its own
proceedings under the applicable laws and its own rules and in the
exercise of its own discretion. Its decisions, orders and rulings are
subject only to review on Certiorari by this Court as provided by the
Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular
chairman comes under that discretion. That discretion cannot be
exercised for it, even with its consent, by the President of the
Philippines.
The problem allegedly sought to be corrected, if it existed at all, did
not call for presidential action. The situation could have been
handled by the members of the Commission on Elections
themselves without the participation of the President, however
well-meaning.
In the choice of the Acting Chairman, the members of the
Commission on Elections would most likely have been guided by
the seniority rule as they themselves would have appreciated it. In
any event, that choice and the basis thereof were for them and not
the President to make.
 Non-Diminution of Salaries; In General
This is similar with the Judiciary – Non-diminution of salaries of the
members of the Commission. Of course, they can be increased
because they do not have a hand anyway in the passage of the law
increasing their salaries.
Similarly, with the judiciary, the commissions enjoy fiscal autonomy
and automatic release of the appropriations which have been
granted to them by Congress.
However, unlike the judiciary, their appropriations can be diminished
in subsequent years. This is because the appropriation is dependent
on the demand of the commission on each year of operations.
Example: In the COMELEC, on an election year, they will need more
funds for appropriations. But in a non-election year, they will be
needing less than that.
FUNA vs. VILLAR
From Morilla Notes:
What is prohibited under the “NO REAPPOINTMENT RULE” as
part of the rotational plan to safeguard independence and
fiscal autonomy of the commissions is the appointment of a
commissioner to the same position of commissioner, or from
chairman to chairman. But if the appointment is from ordinary
commissioner to the chairman, that is not a violation of the
“no reappointment rule” because that is not a reappointment.
That commissioner had been appointed to a different and higher
position from his first appointment.
Supreme Court said that to insure the independence of the
Commission, the appointing authority cannot appoint any
Commissioner or Chairman to a temporary capacity.Only a
permanent appointment can make the incumbent secured in
his position. Temporary appointment would not make the
Commissioner independent for fear that his appointment will
never become permanent.
If there is vacant in the Chairman position, the remaining
Commissioners have the power to appoint among themselves
who will be the acting- chairman for the meantime.
An ―UPGRADING APPOINTMENT, which is not violative of the
rotational plan or the fiscal autonomy and independence, allows
the appointment of incumbent Commissioner to the position of
Chair provided the following 2 conditions are met:
a. The incumbent chairperson must have resigned; died,
removed by impeachment or by reason of disability could no longer
perform his functions thereby leaving an unexpired term.
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b. An incumbent Commissioner can be appointed as Chair.
He must serve only for the unexpired term of the chairperson. 

c. The tenure of the incumbent as commissioner and the
unexpired term of the Chairperson must not exceed seven years.
This is to maintain the so called staggered terms - that no
president except for those first appointed will be allowed to appoint
all the members of the commission during his term. 

The reason for the unexpired term of the Chairman is either the
Chairman died, has been removed by impeachment, has
voluntarily resigned or any other causes which resulted to an
unexpired term. If the position of Chair has been vacant
because of end of term, then there is no unexpired term and
there can be no upgrading appointment.
The end of term will be dependent on the original term of the
departing Commissioner.
 Disqualifications; In General
The only thing to remember is similar to almost all of the officers of
the Constitution, only that they can engage in business provided
they are not in the active management of a business with a possible
conflict of interest.
Example: A company dealing with COMELEC for election
paraphernalia like Smartmatic. Can the COMELEC Commissioner
have shares with Smartmatic?
Technically, the Constitution says active management. If you are
not in active management and you are just a passive owner,
probably it is not prohibited.
1. CIVIL SERVICE COMMISSION
a. Composition and Qualifications of Commissioners
Article IX-B, Section 1(1). The Civil Service shall be administered
by the Civil Service Commission composed of a Chairman and two
Commissioners who shall be natural-born citizens of the Philippines
and, at the time of their appointment, at least thirty-five years of age,
with proven capacity for public administration, and must not have
been candidates for any elective position in the elections
immediately preceding their appointment.
Article VII, Section 13(2).The spouse and relatives by
consanguinity or affinity within the fourth civil degree of the President
shall not during his tenure be appointed as members of the
Constitutional Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of bureaus or
offices, including government-owned or controlled corporations and
their subsidiaries.
b. Powers
 Administrative Functions
 Quasi-judicial Functions
Over the Government and GOCCs with original charters.
TORRES vs. DE LEON
781 SCRA 110 (2016)
FACTS: When Torres (petitioner) was the Chapter Administrator of
the PNRC, General Santos City Chapter, the PNRC Internal Auditing
Office conducted an audit of the funds and accounts of the PNRC.
Based on the audit report submitted to respondent Corazon Alma G.
De Leon (De Leon), Torres incurred a "technical shortage".
Hence, respondent De Leon formally charged petitioner with Grave
Misconduct for violating PNRC Financial Policies on
Oversubscription, Remittances and Disbursement of Funds.
After the completion of the investigation of the case against
petitioner, respondent issued a Memorandum imposing upon
petitioner the penalties of one-month suspension and transfer to the
National Headquarters. Petitioner filed a motion for reconsideration,
but it was denied.
Thereafter, petitioner filed a Notice of Appeal addressed to the
Board of Governors of the PNRC through respondent and furnished
a copy thereof to the CSC. Petitioner addressed her appeal to the
CSC and sent copies thereof to the PNRC and the CSC.
Respondent denied petitioner's appeal.
The CSC dismissed petitioner's appeal and imposed upon her the
penalty of dismissal from service. Thus, petitioner filed a petition for
review under Rule 43 with the CA. It was likewise denied. Hence,
the present petition.
According to petitioner, this Court has decided that PNRC is not a
GOCC, hence, the CSC has no jurisdiction or authority to review the
appeal that she herself filed. As such, she insists that the CSC
committed GAOD in modifying the decision of respondent De Leon.
ISSUE: WON PNRC is under the Civil Service Commission.
RULING: YES. As ruled by this Court in Liban, et al. v. Gordon,3 the
PNRC, although not a GOCC, is sui generis in character, thus,
requiring this Court to approach controversies involving the PNRC
on a case-to-case basis. As discussed:
There is merit in PNRC's contention that its structure is sui generis.
x x x x National Societies such as the PNRC act as auxiliaries to the
public authorities of their own countries in the humanitarian field and
provide a range of services including disaster relief and health and
social programmes…. A National Society partakes of a sui
generis character x x x.
The auxiliary status of [a] Red Cross Society means that it is at one
and the same time a private institution and a public service
organization because the very nature of its work implies cooperation
with the authorities, a link with the State.
Although the PNRC is called to be independent under its
Fundamental Principles, it interprets such independence as inclusive
of its duty to be the government's humanitarian partner. To be
recognized in the International Committee, the PNRC must have an
autonomous status, and carry out its humanitarian mission in a
neutral and impartial manner. However, the PNRC must be
distinguished from private and profit-making entities. The PNRC, as
a National Society of the International Red Cross and Red Crescent
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Movement, can neither "be classified as an instrumentality of the
State, so as not to lose its character of neutrality" as well as its
independence, nor strictly as a private corporation since it is
regulated by international humanitarian law and is treated as an
auxiliary of the State.
Based on the above, the sui generis status of the PNRC is now
sufficiently established. Although it is neither a subdivision, agency,
or instrumentality of the government, nor a government-owned or -
controlled corporation or a subsidiary thereof, as succinctly
explained in the Decision of July 15, 2009, so much so that
respondent, under the Decision, was correctly allowed to hold his
position as Chairman thereof concurrently while he served as a
Senator, such a conclusion does not ipso facto imply that the PNRC
is a "private corporation" within the contemplation of the provision of
the Constitution, that must be organized under the Corporation
Code. As correctly mentioned by Justice Roberto A. Abad, the sui
generis character of PNRC requires us to approach
controversies involving the PNRC on a case-to-case basis.4
In this particular case, the CA did not err in ruling that the CSC has
jurisdiction over the PNRC because the issue at hand is the
enforcement of labor laws and penal statutes, thus, in this particular
matter, the PNRC can be treated as a GOCC, and as such, it is
within the ambit of Rule I, Section 1 of the Implementing Rules of
Republic Act 67135, stating that:
Section 1. These Rules shall cover all officials and employees in the
government, elective and appointive, permanent or temporary,
whether in the career or non-career service, including military and
police personnel, whether or not they receive compensation,
regardless of amount.
Thus, having jurisdiction over the PNRC, the CSC had authority to
modify the penalty and order the dismissal of petitioner from the
service.
The question would be: When do we plead PNRC as under Civil
Service or as a private corporation?
The importance of answering the question is that if it is a GOCC
without original charter, it is NOT covered by the CSC.
Example: Manila Hotel – even if 51% of the shares is owned and
controlled by GSIS, it is not a GOCC with original Charter. It was
established and incorporated under the Philippine Corporation Code.
c. Appointment and term of office of Commissioners;
Rule against reappointment
Article IX-B, Section 1(2). The Chairman and the Commissioners
shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, the Chairman shall hold
office for seven years, a Commissioner for five years, and another
Commissioner for three years, without reappointment. Appointment
to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity.
d. Appointment of personnel of CSC
Article IX-A, Section 4. The Constitutional Commissions shall
appoint their officials and employees in accordance with law.
e. Salary
Article XVIII, Section 17. xxx the Chairmen of the Constitutional
Commissions, two hundred four thousand pesos each; and the
Members of the Constitutional Commissions, one hundred eighty
thousand pesos each.
Article IX-A, Section 3. The salary of the Chairman and the
Commissioners shall be fixed by law and shall not be decreased
during their tenure.
f. Disqualifications
Article IX-A, Section 2. No member of a Constitutional Commission
shall, during his tenure, hold any other office or employment. Neither
shall he engage in the practice of any profession or in the active
management or control of any business which, in any way, may be
affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.
g. Impeachment
Article XI, Section 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 of public trust. All other public officers and
employees may be removed from office as provided by law, but not
by impeachment.
h. Appeal
i. Scope of the Civil Service
Article IX-B, Section 2(1). The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government,
including government- owned or controlled corporations with original
charters.
 GOCC with Original Charter; Defined
Article XII, Section 16. The Congress shall not, except by general
law, provide for the formation, organization, or regulation of private
corporations. Government-owned or controlled corporations
may be created or established by special charters in the
interest of the common good and subject to the test of
economic viability.
CSC has administrative and quasi-judicial powers.
DOF vs. DELA CRUZ
FACTS: The case stemmed from the issuance of EO 140. BOC
Commissioner Biazon issued CPO 189-2013 detailing 27 BOC
personnel holding the positions of Collector of Customs V and VI,
including respondents in this case, to CPRO "effective immediately
and valid until sooner revoked."
Respondents filed an action for Dec. Relief with App. for TRO
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and/or WPI before the RTC of Manila. Exec. Judge Dela Cruz
issued a TRO enjoining petitioners or any person acting for and in
their behalf from implementing CPO 189-2013.
Petitioners alleged that the case involves personnel action affecting
public officers which is under the exclusive jurisdiction of the CSC.
Respondents alleged that the case involves the validity and
constitutionality of CPO 189-2013, and thus, it is beyond the
jurisdiction of the CSC.
ISSUE: WON the matter is within the exclusive jurisdiction of the
CSC.
RULING: NO. The CSC has jurisdiction over all employees of
government branches, subdivisions, instrumentalities, and agencies,
including government-owned or controlled corporations with original
charters. The CSC is the sole arbiter of controversies relating to the
civil service. The rule is that disciplinary cases and cases involving
personnel actions, including "appointment through certification,
promotion, transfer, reinstatement, reemployment, detail,
reassignment, demotion, and separation," are within the exclusive
jurisdiction of the CSC. This rule is embodied in Section 1, Rule V of
the Omnibus Rules Implementing Book V of Executive Order No.
292 and Other Pertinent Civil Service Laws (Omnibus Rules) which
states:
SECTION 1. x x x.As used in these Rules, any action denoting
movement or progress of personnel in the civil service shall be
known as personnel action. Such action shall include promotion,
transfer, reinstatement, reemployment, detail, secondment,
reassignment, demotion and separation, x x x.
Under Section 8, Rule VII of the Omnibus Rules, "[a] detail is the
movement of an employee from one department or agency which is
temporary in nature, which does not involve a reduction in rank,
status or salary and does not require the issuance of another
appointment."
CPO 189-2013 is an order detailing personnel from the BOC to
CPRO under the DOF.
A reading of the petition filed before the RTC shows that
respondents were questioning their mass detail and reassignment to
CPRO. According to respondents, their detail was carried out in bad
faith and was meant to remove them from their permanent positions
in the BOC. The action appears to be a personnel action under the
jurisdiction of the CSC.
However, the petition went beyond questioning the detail of
respondents. Respondents further assailed the validity and
constitutionality of CPO 189-2013. When respondents raised the
issue of validity and constitutionality of CPO 189-2013, the issue
took the case beyond the scope of the CSC's jurisdiction because
the matter is no longer limited to personnel action. Thus, the RTC
did not abuse its discretion in taking cognizance of the action.
2. COMMISSION ON ELECTIONS
The only issue in COMELEC would be the jurisdiction over
qualifications and election returns respecting a candidate. Before a
candidate is considered a member of the house, the contest shall be
with the COMELEC. Thereafter, it would be on the appropriate
electoral tribunal.
a. Composition and Qualifications of Commissioners
Article IX-C, Section 1. There shall be a Commission on Elections
composed of a Chairman and six Commissioners who shall be
natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, holders of a college
degree, and must not have been candidates for any elective
positions in the immediately preceding elections. However, a
majority thereof, including the Chairman, shall be members of
the Philippine Bar who have been engaged in the practice of
law for at least ten years.
Article VII, Section 13(2). xxx The spouse and relatives by
consanguinity or affinity within the fourth civil degree of the President
shall not, during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of bureaus or
offices, including government-owned or controlled corporations and
their subsidiaries.
b. Appointment and term of office of Commissioners;
Rule against reappointment
Article IX-C, Section 1(2).The Chairman and the Commissioners
shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired term of the predecessor.
In no case shall any Member be appointed or designated in a
temporary or acting capacity.
c. Appointment of Personnel
Article IX-A, Section 4. The Constitutional Commissions shall
appoint their officials and employees in accordance with law.
d. Salary
Article IX-A, Section 3. The salary of the Chairman and the
Commissioners shall be fixed by law and shall not be decreased
during their tenure.
e. Disqualifications
Article IX-A, Section 2. No member of a Constitutional Commission
shall, during his tenure, hold any other office or employment. Neither
shall he engage in the practice of any profession or in the active
management or control of any business which, in any way, may be
affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.
f. Impeachment
Article XI, Section 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
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crimes, or betrayal of public trust. All other public officers and
employees may be removed from office as provided by law, but not
by impeachment.
g. Appeal
3. COMMISSION ON AUDIT
 Powers
 Administrative
 Quasi-judicial
a. Composition and Qualifications
Article IX-D, Section 2(1). The Commission on Audit shall have the
power, authority, and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures or uses
of funds and property, owned or held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled
corporations with original charters, and on a post-audit basis: (a)
constitutional bodies, commissions and offices that have been
granted fiscal autonomy under this Constitution; (b) autonomous
state colleges and universities; (c) other government-owned or
controlled corporations and their subsidiaries; and (d) such non-
governmental entities receiving subsidy or equity, directly or
indirectly, from or through the Government, which are required by
law or the granting institution to submit to such audit as a condition
of subsidy or equity. However, where the internal control system of
the audited agencies is inadequate, the Commission may adopt
such measures, including temporary or special pre-audit, as are
necessary and appropriate to correct the deficiencies. It shall keep
the general accounts of the Government and, for such period as
may be provided by law, preserve the vouchers and other supporting
papers pertaining thereto.
Article VII, Section 12(2). The Commission shall have exclusive
authority, subject to the limitations in this Article, to define the scope
of its audit and examination, establish the techniques and methods
required therefor, and promulgate accounting and auditing rules and
regulations, including those for the prevention and disallowance of
irregular, unnecessary, excessive, extravagant, or unconscionable
expenditures, or uses of government funds and properties.
REMEMBER: It is within the jurisdiction of COA if it involves public
funds (money coming in or given to the government).
Article XI-D, Section 3. No law shall be passed exempting any
entity of the Government or its subsidiary in any guise whatever, or
any investment of public funds, from the jurisdiction of the
Commission on Audit.
NGOs were included in the examination of the COA during the
PDAF scam because it involved public funds.
FUNA vs. MECO
715 SCRA 247 (2015)
This involves Manila Economic and Cultural Office (MECO), a quasi-
government entity taking care of our “diplomatic relations” with
Taiwan. MECO is authorized to handle consular services as well as
collect fees of overseas employers over the Philippine workers
employed in Taiwan.
ISSUE: WON these funds should be under the jurisdiction of COA.
RULING: YES. For so long as there is money going to or coming
from the government, COA has the power to examine and audit
those accounts. Insofar as the percentage of the money paid as
consular fees or those paid by the employers to the government,
COA has the right to audit or examine.
PARAISO-ABAN vs. COA
780 SCRA 235 (2016)
FACTS: The Senate's Committees on Accountability of Public
Officers and Investigations and on National Defense and Security
held various hearings to investigate the alleged anomalous
acquisitions of land by the AFP-RSBS. The Deputy Ombudsman for
the Military and Other Law Enforcement Offices requested the COA
to conduct an audit of the past and present transactions of the AFP-
RSBS.
A Special audit team (SAT) was constituted, which found that AFP-
RSBS purchased 4 parcels of land located in Calamba, Laguna.
The purchase was covered by two deeds of sale for different
amounts; and, that the sale which was registered with the RD of
Calamba indicated a total price of P91,024,800.00, whereas the
deeds of sale found in the records of the AFP-RSBS showed that it
actually paid P341,343,000.00 for the lots, or a difference of
P250,318,200.00.
The SAT issued Audit Observation Memorandum which were
received by AFP-RSBS. It elicited no response from the latter,
hence, its conclusion that for all legal intents the true deed of sale
was the one filed with the RD.
The SAT issued ND No. 2010-07-084-(1996) for P250,318,200.00
representing the excess in the price paid for the above lots. It
named the petitioner, the Acting Head of the Office of Internal
Auditor of the AFP-RSBS,as among the persons liable for the said
disallowance, on the basis of her participation in the transaction
through her "verifying the correctness of payment."
The petitioner appealed to the COA en banc, where she reiterated
that she had no knowledge of the above transactions. The COA en
banc denied the petitioner's request for exclusion from liability.
RULING: It is well to be reminded that the exercise by COA of its
general audit power is among the mechanisms of check and
balance instituted under the 1987 Constitution on which our
democratic form of government is founded. Article IX-D, Section
2(1) of the 1987 Constitution provides that the COA has "the power,
authority, and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures or uses
of funds and property, owned or held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled
corporations with original charters." Corollary to the COA's audit
power, Section 2(2) of Article IX-D further provides:
Sec. 2(2). The Commission shall have exclusive authority, subject
to the limitations in this Article, to define the scope of its audit and
examination, establish the techniques and methods required
therefor, and promulgate accounting and auditing rules and
regulations, including those for the prevention and disallowance of
irregular, unnecessary, excessive, extravagant, or unconscionable
expenditures or uses of government funds and properties.
(Emphasis supplied)
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In a recent case, Delos Santos v. COA, wherein the Court upheld
the COA's disallowance of irregularly disbursed Priority
Development Assistance Fund, the Court explained that:
At the outset, it must be emphasized that the COA is endowed
with enough latitude to determine, prevent, and disallow
irregular, unnecessary, excessive, extravagant or
unconscionable expenditures of government funds. It is tasked
to be vigilant and conscientious in safeguarding the proper use of
the government's, and ultimately the people's, property. The
exercise of its general audit power is among the constitutional
mechanisms that gives life to the check and balance system
inherent in our form of government.
Corollary thereto, it is the general policy of the Court to sustain the
decisions of administrative authorities, especially one which is
constitutionally-created, such as the CoA, not only on the basis of
the doctrine of separation of powers but also for their
presumed expertise in the laws they are entrusted to enforce.
Findings of administrative agencies are accorded not only respect
but also finality when the decision and order are not tainted with
unfairness or arbitrariness that would amount to grave abuse of
discretion. It is only when the CoA has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, that this Court entertains a petition
questioning its rulings, x x x. (Citation omitted and Emphasis
supplied)
In its assailed decision, the COA cited Title II, Vol. Ill of the
Government Accounting and Auditing Manual to point out that
internal audit is part of internal control which the responsible agency
officers must exercise over its transactions. As Section 123 of
Presidential Decree (P.D.) No. 1445 also provides:
Sec. 123. Definition of internal control. Internal control is the plan
of organization and all the coordinate methods and measures
adopted within an organization or agency to safeguard its assets,
check the accuracy and reliability of its accounting data, and
encourage adherence to prescribed managerial policies.
As further provided in Section 124 of P.D. No. 1445, it is the direct
responsibility of the head of agency to install, implement, and
monitor a sound system of internal control. Needless to state,
however, the agency head must rely on the diligent assistance and
sound expertise of the internal audit head and staff in installing and
operating a sound internal control system.
In the case before this Court, the petitioner admitted that to verify
the correctness of the subject transaction, all that she did was to
check the same against AFP-RSBS's "approved" planned
purchases and "approved" budgets, further pointing out that she
"signed correct" on the vouchers months after payments had been
released, and only after the post-audit by the audit staff and the
review by the head of the Financial Audit Branch. The petitioner
consulted no independent sources, such as the documents
submitted to the Bureau of Internal Revenue (BIR) and the RD, or
any data of prevailing real estate prices. Had she done so, she
could conceivably have discovered the loss.
Atty. Montejo: This refers to the Notice of Disallowance. The COA
can issue a Memo. Under GovAcc, if the expenditure is disallowed in
audit, there is a demand to payback what has been spent.
If there is an issue on the payment, for completion, the COA can
issue an Audit Memo which is just an observation of what should
had been done or what could be done or could issue an order for the
suspension of payment until the issue is resolved. But in case there
is a finding that it should not have been paid at all, that is where
Notice of Disallowance shall be issued. That is within the power of
COA because it is provided in the Constitution that COA has the
power to disallow payment of expenses that is not done in
compliance with law.
Based on this Aguinaldo Doctrine (reversed by Carpio-Morales
Case)
Is the findings of COA conclusive?
In the case of Aguinaldo, the COA issued an audit-finding that
former governor Aguinaldo has not violated any of the rules and
regulations issued by COA with respect on the questioned
expenditure.
Can that Audit Report be used a basis for dismissing the Criminal
Case?
The SC said that a COA Report is only conclusive on the
Administrative aspect of the Government Accounting and Auditing
Practices (GAAP). It is not a conclusive proof that there is no
criminal violation committed. At best, it is just proof that all the
administrative issuances were not violated when that COA Report
was made.
Conversely, it can also be the basis for finding a probable cause if
COA finds some questionable transactions and if it should amount to
a criminal liability.
b. Appointment and term of office of Commissioners;
Rule against reappointment
Article IX-D, Section 1(2). xxx The Chairman and the
Commissioners shall be appointed by the President with the consent
of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, the Chairman shall
hold office for seven years, one Commissioner for five years, and
the other Commissioner for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired portion
of the term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
c. Appointment of Personnel
Article IX-A, Section 4. The Constitutional Commissions shall
appoint their officials and employees in accordance with law.
d. Salary
Article IX-A, Section 3. The salary of the Chairman and the
Commissioners shall be fixed by law and shall not be decreased
during their tenure.
e. Disqualifications
Article IX-A, Section 2. No member of a Constitutional Commission
shall, during his tenure, hold any other office or employment. Neither
shall he engage in the practice of any profession or in the active
management or control of any business which, in any way, may be
affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its
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subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.
f. Impeachment
Article XI, Section 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 of public trust. All other public officers and
employees may be removed from office as provided by law, but not
by impeachment.
g. Appeal
 Review of Decisions of the Commission
The Constitution provides for the 30-day period to seek a review of
the decisions and final orders of the commissions but subject,
however, to provisions of the Rules of Court. The mode of review for
each of the commissions is provided for by the Rules of Court, more
specifically:
1. Civil Service Commission - Rule 43 by Petition for
Certiorari to the Court of Appeals within 15 days from
notice of judgment or from the date of its last publication, if
required; and
2. Commission on Audit and Commission on Elections –
Rule 64 in relation to Rule 65 by Petition for Certiorari to
the Supreme Court within 30 days from notice of
judgment.
But with respect to the COMELEC, if the decision is from the
electoral tribunals it goes directly to the SC under Rule 65. If the
decision is from the COMELEC itself, it is rule 64 in relation to rule
65. And as a general rule, only the decisions and final orders of the
COMELEC en banc can be the subject of the petition for certiorari
with the SC.
These cases that can be reviewed by the SC or the CA are only
those final orders or resolutions rendered by the commissions in the
exercise of their quasi-judicial function. So, these exclude those
done from administrative duties.
Example: if there is an appointment of an election officer, the order
on who is to be appointed cannot be the subject of a review under
Rule 64 in relation to Rule 65. You file an ordinary petition before the
regular courts.
In the case of CASABALANCA vs. CSC (2009), this involves a
disqualification of an examinee for cheating in the civil service
exams, the decision to perpetually disqualify him to take any other
civil service exam is not that decision which shall be reviewable by
the CA. It shall be with the regular courts. This is because under the
Administrative Code of 1987, the CSC has the administrative power
and functions to control and supervise the civil service examinations.
Also under the Omnibus Civil Service Rules and Regulations, the
CSC has the original disciplinary jurisdiction over cases involving
civil service examination anomalies or irregularities.
VI. THE AMENDING PROCESS
Under the 1987 constitution, there are three modes to amend the
constitution and two ways that the constitution can be revised.
Amendment refers to change which nevertheless maintains the
basic structure of government as it was in the constitution to be
amended. The proposal to change our government from unitary to
federal is considered to be an amendment even if all the provisions
are seemingly affected, but because the similar setup is maintained
and only there are additional layers.
Revision is one that practically changes the structure of the
government from the amended constitution into a new one even if
only one or two provisions are altered. It can be a change from a
bicameral to a unicameral congress or from a 3 branch government
to a parliamentary form. It is the character or nature of the change
and not the number of changes that has been made.
A. Proposal
For modes of amendment, the 1987 constitution provides:
1. By Congress
Article XVII, 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.
Congress acting as Constituent Assembly by a vote ¾ votes of all
members of both houses
2. By Constitutional Convention
Article XVII, 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.
Constitutional Convention will be called by a 2/3 votes of all
members of both houses or by a majority vote to let the people
decide in an election activity whether they want a constitutional
convention to be called
3. By the People through Initiative
Article XVII, 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.
RA 6735, Section 5. Requirements. — (a) To exercise the power of
initiative or referendum, at least ten per centum (10%) of the total
number of the registered voters, of which every legislative district is
represented by at least three per centum (3%) of the registered
voters thereof, shall sign a petition for the purpose and register the
same with the Commission.
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(b) A petition for an initiative on the 1987 Constitution must have at
least twelve per centum (12%) of the total number of registered
voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered
voters therein. Initiative on the Constitution may be exercised only
after five (5) years from the ratification of the 1987 Constitution and
only once every five (5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred
(100) words which shall be legibly written or printed at the top of
every page of the petition.
(d) A referendum or initiative affecting a law, resolution or ordinance
passed by the legislative assembly of an autonomous region,
province or city is deemed validly initiated if the petition thereof is
signed by at least ten per centum (10%) of the registered voters in
the province or city, of which every legislative district must be
represented by at least three per centum (3%) of the registered
voters therein; Provided, however, That if the province or city is
composed only of one (1) legislative district, then at least each
municipality in a province or each barangay in a city should be
represented by at least three per centum (3%) of the registered
voters therein.
(e) A referendum of initiative on an ordinance passed in a
municipality shall be deemed validly initiated if the petition therefor is
signed by at least ten per centum (10%) of the registered voters in
the municipality, of which every barangay is represented by at least
three per centum (3%) of the registered voters therein.
(f) A referendum or initiative on a barangay resolution or ordinance
is deemed validly initiated if signed by at least ten per centum (10%)
of the registered voters in said barangay.
RA 6735, Section 9. Effectivity of Initiative or Referendum
Proposition. xxx
(b) The proposition in an initiative on the Constitution approved
by a majority of the votes cast in the plebiscite shall become
effective as to the day of the plebiscite.
SANTIAGO vs. COMELEC
270 SCRA 106 (1997)
ISSUE: Is R.A. No. 6735 (Initiative and Referendum Act) a full
compliance with the power and duty of Congress to provide for the
implementation of the exercise of the right?
RULING: A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC,
Section 2 of the Act does not suggest an initiative on amendments to
the Constitution. The said section reads:
SECTION 2. Statement and Policy. -- The power of the people under
a system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Underscoring supplied).
The inclusion of the word Constitution therein was a delayed
afterthought. That word is neither germane nor relevant to said
section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That
section is silent as to amendments on the Constitution. As pointed
out earlier, initiative on the Constitution is confined only to proposals
to AMEND. The people are not accorded the power to directly
propose, enact, approve, or reject, in whole or in part, the
Constitution through the system of initiative. They can only do so
with respect to laws, ordinances, or resolutions.
Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and mentions it
as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the
percentage of the registered voters who must submit the proposal.
But unlike in the case of the other systems of initiative, the Act does
not provide for the contents of a petition for initiative on the
Constitution. Section 5, paragraph (c) requires, among other things,
statement of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be.
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum
(Subtitle III), no subtitle is provided for initiative on the Constitution.
This conspicuous silence as to the latter simply means that the main
thrust of the Act is initiative and referendum on national and local
laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it
could have provided for a subtitle therefor, considering that in the
order of things, the primacy of interest, or hierarchy of values, the
right of the people to directly propose amendments to the
Constitution is far more important than the initiative on national and
local laws.
R.A. No. 6735, in all of its twenty-three sections, merely (a)
mentions, the word Constitution in Section 2; (b) defines initiative on
the Constitution and includes it in the enumeration of the three
systems of initiative in Section 3; (c) speaks of plebiscite as the
process by which the proposition in an initiative on the Constitution
may be approved or rejected by the people; (d) reiterates the
constitutional requirements as to the number of voters who should
sign the petition; and (e) provides for the date of effectivity of the
approved proposition.
There was, therefore, an obvious downgrading of the more important
or the paramount system of initiative. R.A. No. 6735 thus delivered a
humiliating blow to the system of initiative on amendments to the
Constitution by merely paying it a reluctant lip service.
The foregoing brings us to the conclusion that R.A. No. 6735 is
incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned.
Its lacunae on this substantive matter are fatal and cannot be cured
by empowering the COMELEC to promulgate such rules and
regulations as may be necessary to carry out the purposes of [the]
Act.
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 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
LAMBINO vs. COMELEC
G.R. No. 17415, October 25, 2006
FACTS: Petitioners in G.R. No. 174153, namely Raul L. Lambino
and Erico B. Aumentado (Lambino Group), with other groups and
individuals, commenced gathering signatures for an initiative petition
to change the 1987 Constitution. 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)[2] and Section 7[3] of Republic
Act No. 6735 or the Initiative and Referendum Act (RA 6735).
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 COMELEC issued its Resolution denying due course to the
Lambino Groups petition for lack of an enabling law governing
initiative petitions to amend the Constitution. The COMELEC
invoked this Court’s ruling in Santiago v. Commission on Elections
declaring RA 6735 inadequate to implement the initiative clause on
proposals to amend the Constitution.
RULING: The Lambino Group miserably failed to comply with the
basic requirements of the Constitution for conducting a peoples
initiative. Thus, there is even no need to revisit Santiago, as the
present petition warrants dismissal based alone on the Lambino
Groups glaring failure to comply with the basic requirements of the
Constitution. For following the Courts ruling in Santiago, no grave
abuse of discretion is attributable to the Commision on Elections.
The present petition warrants dismissal for failure to comply with the
basic requirements of Section 2, Article XVII of the Constitution on
the conduct and scope of a people’s initiative to amend the
Constitution. There is no need to revisit this Court’s ruling in
Santiago declaring RA 6735 incomplete, inadequate or wanting in
essential terms and conditions to cover the system of initiative to
amend the Constitution. An affirmation or reversal of Santiago will
not change the outcome of the present petition. Thus, this Court
must decline to revisit Santiago which effectively ruled that RA 6735
does not comply with the requirements of the Constitution to
implement the initiative clause on amendments to the Constitution.
Seemingly, there has been a misunderstanding that the Lambino
Ruling has allowed initiative to amend the constitution to be
undertaken under R.A. 6735. In the case of Santiago, the SC ruled
that R.A. 6735 was found to be insufficient. When the Lambino
followed, it was decided by a vote of 8-7 and the petition was
dismissed. The Santiago Ruling was not revisited. Justice Carpio
who penned the decision stated that there is no reason to revisit
because R.A. 6735 is still insufficient. Also, in that case the initiative
was considered to be a revision and not a mere amendment. They
wanted to change the legislative branch into a parliamentary form.
On November 21, 2006, the motions for reconsideration were denied
with finality by the same 8-7 votes. But the problem was the clerk of
court in the final paragraph in the minute resolution misquoted the
main decision because it says, “Ten members of the Court reiterate
their position, as shown by their various opinions already given when
the Decision herein was promulgated, that Republic Act 6735 is
SUFFICIENT and ADEQUATE to amend the Constitution thru a
people’s initiative.”
So the COMELEC in January 2007, following the minute resolution,
said that there can be an initiative on the Constitution. And that
minute resolution has found its way in various books. But take note
that Santiago never changed and Lambino did not even revisit the
former. The minute resolution was not even signed by the justices; it
was only the Clerk of Court. Remember that the last decision was
never reconsidered because all of the MRs were denied with finality.
Atty. Montejo: I would still submit that there is no law providing for
the details for amending the constitution under R.A. 6735.
Executive Order No. 10, December 7, 2016
A consultative committee which shall review the 1987 constitution
was created composing of 25 members. They have already
submitted a draft constitution to the president. But if the Congress
constitutes itself as a constituent assembly or calls for a
constitutional convention may make its own draft or use the one of
the consultative as a working draft. The approved draft will be
subjected to a plebiscite which shall be held within a period of 60-90
days from such approval. It will be effective thereafter.
B. Ratification
The two modes for revision are:
1. In case amendments proposed by Congress or Convention
Article XVII, Section 4(1). 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.
a. Congress acting as Constituent Assembly by a vote ¾
votes of all members of both houses;
b. Constitutional Convention will be called by a 2/3 votes of
all members of both houses or by a majority vote to let the
people decide in an election activity whether they want a
constitutional convention to be called.
2. In case of amendments proposed through initiative
Article XVII, Section 4(2). 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.
NOTE: Plebiscite to be called by Congress and supervised by
COMELEC, but the initiative on Constitution will be called by
COMELEC.
C. Theories regarding the position of a Constitutional
Convention in our system of government
D. Judicial Review of the Amending/Revision Process
Article VIII, Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by
law.
xxx
Page 78
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

The Constituent Assembly and the Constitutional Convention is

supposed to a co-equal body to be separate from the other branches
of the government even if congress itself constitutes itself as the
former. It is not acting as a congress but it is performing its
sovereign duty to propose amendments or revisions to the
constitution. Their powers over the procedures of amendment or
revision would be absolute insofar as the proposed changes are
concerned. They can only be controlled with respect to the
procedures as required under the constitution which is to be
amended or revised. So long as the voting requirements in
constitution are not violated provided in the constitution, any
changes they would want to include will not be subject of a judicial
review.

– End of Constitutional Law 1 Review –

Compiled by: Mel Miranda

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