CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith.
Matthew 21:22
In UNION, There is STRENGTH
POLITICAL LAW REVIEW: CONSTITUTIONAL LAW AS
DISCUSSED BY JUDGE SINGCO
2015 - 2016
JUNE 6, 2015
CONSTITUTION
The Constitution is fundamental law of the land
upon which all government activities are based. It is the
highest law of the land. This is the Supremacy of the
Constitution. Any law, contract contrary to that shall be
considered as void.
Manila Prince Hotel vs GSIS
The Supreme Court held that under doctrine of the
supremacy of the constitution, if the law contract violates the
constitution, that law or contract whether promulgated by the
executive branch or entered into by private persons or for
private purposes are null and void without any force and
effect since the constitution is the fundamental paramount
supreme law of the nation, it is deemed written in every
statute and contract.
Different Kinds of Constitution
1. Written or Unwritten
2. Rigid or Flexible
3. Conventional or Cumulative
WRITTEN OR UNWRITTEN
Written - when the sources are found in one single
instrument; the different provisions of the constitution
are found in one single instrument, there is only once
source.
Unwritten - not necessarily mean that the provisions
are not written, in fact some of the sources are written
only that they are scattered, they can be found in
different sources. Good example is the Great Britains
Constitution. It is source not only from the
legislative/parliament acts, decisions of the SC but as
well as on unwritten source such as the conventions of
the people, the customs and traditions of the people.
They all form part of the unwritten constitution.
Usually the unwritten constitution is cumulative, it
is evolutionary, it evolve from the history. It is a
product of day in and day out activities of the
people. It is not just written in one particular period
of time like a conventional wherein it is being acted
in one particular period of time.
A cumulative or evolutionary constitution takes
time. It is a continuing process insofar as the
making of that constitution.
Say for example the Constitution of the
Great Britain, they do not pass laws only
at one time. For as long as there is
government, there is the parliament
passing laws, these laws will be part of
the constitution of the Great Britain. Or
the SC of GB does not render decision
only at one time. For as long as there are
cases that are raised, questions of law
are being challenged, the SC shall decide
and such decision shall form part of the
constitution of GB.
CONSTITUTION OF THE PHILIPPINES
Conventional or Enacted constitution. In what
circumstances it is enacted? We start with the 1935
Consti although there were unwritten laws which were
made basis of the Govt.
From the 1935 Constitution, which was enacted
by the 1934 Constitutional Commission (ConCom)
and ratified by the people subject to the approval of
the Pres. Of the USA because at that time we were
not yet independent. It took effect upon ratification
by the people on May 14, 1935. There were
amendments of the 1935 Constitution. Because of
the major changes, it was also called as the 1947
Constitution where there were major changes were
introduced after we were granted with our
independence.
There was only originally the 1935 Constitution
which was revised in 1971 by the 1971 ConCom,
this was ratified by the Citizen Assemblies.
Declared having been validly ratified by virtue of
Pres.Proclamation 1102 by Marcos. It took effect
on that day when Marcos declared as was having
been validly ratified on Jan. 17, 1973.
Take Note: the 1935 Consti took effect upon the ratification
of the people while the 1973 Consti took effect upon the
declaration of its valid ratification by Marcos on Jan. 17,
1973.
Then there was an EDSA revolution, we had a
Revolutionay Gov., it was based on a Freedom
Constitution that was promulgated by Cory Aquino
otherwise known as Proclamation No. 3 which
practically adopted the provisions of the 1973
Constitution except for the provisions of the
government because the government was
revolutionary. It took effect immediately upon its
promulgation by Cory Aquino.
Then there was the promulgation of the 1986
ConCom which was created by virtue of
Proclamation No. 9 and then the ratification of the
Constitution on Feb. 2, 1987.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Take Note: it was only declared as having been validly
ratified by Cory Aquino by virtue of Executive Order No. 50
on Feb. 9, 1987 and thus the controversy when does the
1987 Constitution take effect - whether on the date of
ratification or the date when it was declared as having been
validly ratified.
De Leon vs Esguerra
The SC emphasized Sec. 27 of Art.18 of the Transitory
Provision wherein the Constitution shall take effect only
upon the ratification of the people. It is settled that the
declaration of its valid ratification retroacts from the date of
the ratification as to its effectivity. Thus it is settled that the
1987 Constitution took effect on Feb. 2, 1987.
Granted Constitution
Constitution made by one party sovereign state for another
state. Example: Constitution of Japan after it surrendered to
the US. There was a Treaty of Peace that would serve as the
fundamental law governing Japan as it was having
devastation as a result of the WWII. That fundamental law as
Treaty of Peace was made basis for the operation of the
government of Japan that time.
RIGID OR FLEXIBLE
- This pertains to the manner of amending the
Constitution - if it easy or difficult to change.
Flexible - it is easy, anytime it can be changed without
following any formalities, that constitution is flexible.
Rigid - if you have to follow a specific procedure on
amending it, then the constitution is rigid.
Take Note: You will not be asked in the bar as to the
difference of rigid and flexible constitution. You will be asked
as to the manner of amending our constitution because our
constitution is rigid, we follow a particular procedure on how
to change or amend it.
PROCESS OF CHANGING THE CONSTITUTION
3 STAGES
1. Proposal
2. Submission of the Proposal to the People
3. Ratification
Take Note: Most of the questions asked in the bar is on how
do you propose amendments or revisions in the Constitution.
Changes could simply be an 1amendment or an overhaul
such as a 2revision.
Take Note: the one proposing may not be qualified to
propose a revision but only an amendment.
Amendment when you only make changes to such a
part or parts of the constitution. It does not change the
philosophy of the constitution or the basis of the
constitution
Revision its an overhaul, it changes the philosophy,
the principle, it changes the whole thing
Question: When you change the term of office of the
president, from 6 years to 8 years with one reelection,
amendment or revision?
Answer: Its an amendment because it does not
change the system of government, still presidential. What is
changed is simply the term of office.
Question: The term of office of president shall be
indefinite based on whether he still holds the trust and
confidence of the members of legislature, then in effect you
are having a parliamentary system of government,
amendment or revision?
Answer: Revision because it is not simply a change of
term but youre changing the system of government, the
philosophy of the government being established.
THREE ENTITIES THAT CAN PROPOSE CHANGES TO
THE CONSTITUTION
This is important because in the proposal, who can
propose changes to the constitution? There are only
three entities who can change or propose a change to the
constitution;
1. Congress 3/4 votes where you convert congress
as a constituent assembly, one of their legislative
function although other than making laws
2. Congress may call or establish a ConCon in two
ways:
a. by 2/3 votes they may call for a concon or
b. by a majority vote submit that question to
the people whether or not they want a
concon in order to propose changes to the
constitution
c.
Take Note: If it is by Congress or ConCon, they can propose
both amendment and revision.
3. People Initiative and Referendum (legal basis, RA
6735) but limited only to proposing amendments
to the constitution.
RA 6735 is very clear that people could only propose
amendments
Case: Lambino vs COMELEC
People can only propose an amendment and not a
revision. Thats to propose a change in the system of
government is practically a Revision and not just an
POLITICAL LAW REVIEW: JUDGE SINGCO | BATCH 2016
 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
amendment therefore people thru initiative cannot
supposedly make such kind of proposal.
Case: Santiago Case
SC emphasized that RA 6735 is not sufficient in
providing procedure on how people can propose through an
initiative an amendment to the constitution.
Question: How about the president? Because now you
have the problem with the Bangsamoro where the president
proposing to the congress to pass BBL which may in effect
amend the constitution.
Answer: Case involving Arroyo: declared
unconstitutional
Province of North Cotabato vs The Republic of the Phils.
Peace panel.
It was declared by the SC to be unconstitutional
because to implement the Memorandum of Agreement with
the MI before would propose an amendment to the
constitution to recognize an associate state which the
constitution of 1987 does not allow. So to implement it then,
in effect the president through the MOA is proposing that the
constitution be changed in order to recognize an associate
state. The challenge to the constitutionality of the BBL is
similar to the MOA case. The justification for declaring it later
as unconstitutional is firstly, the president cannot propose
amendments or revision to the constitution. There are only
three entities under the 1987 constitution which can
propose.
Question: Then why did Marcos able to change the
1973 constitution?
Answer: Because he had legislative power. It was
under martial law and by amendment no. 6, he arrogate unto
himself legislative power that enables him to make
amendments to the 1973 constitution.
Question :Then why Cory Aquino?
Answer: because there was no legislative body. It was
a revolutionary government. She arrogate unto herself both
legislative and executive powers.
But not under the 1987 consti. The consti is very clear,
only three entities can propose changes to the consti;
congress, concon (constitutional convention or constitutional
commission) and people.
How? Procedure under RA 6735, it must be:
1. Proposal - proposed by 12% of the registered voters
wherein
2. Representation - each legislative district is represented
by at least 3% of its registered voters.
a) And According to the Lambino case, because the
people who are the authors of the proposed the
amendments,
3. Signing - they must sign the petition itself. Not just you
make attachments to the petition the signatures but the
petition itself must be signed by the registered voters being
the authors of the proposed amendments.
4. Ratification - Ratification by majority of the people who
casts their votes during the plebiscite.
a) So plurality, based on the result of the plebiscite,
majority vote is all that is required.
On the concept of congress acting as a constituent
assembly:
Theyre supreme within their own sphere so far
proposing changes to the constitution. This is separate
and distinct from its power to make laws and to
appropriate funds. So when they are considered as
constituent assembly, the function is only to propose.
That does not include appropriating funds. The
appropriation will be done by congress acting as a
legislative body.
Thereafter the proposal there is the Submission. The
submission is made when their done with their draft, it is
submitted to the people for consultation so people
will understand what it is they are going to decide on,
whether to approve or disapprove it.
The only principle that we need to remember
here is the manner of submitting it.
It CANNOT be done piecemeal.
It has to be the whole thing so that people will be
able to fully understand the provisions and their
relationship with each other. That was one of the
reason why the changes proposed by Marcos to
the 1973 consti, it was scheduled for referendum or
plebiscite was declared unconstitutional because it
was done on installment basis. It cannot be done
that why.
Again, your constitution is rigid. The flexible consti, it can be
changed anytime without certain procedures. Like in Great
Britain, every time new laws are passed, it introduce
changes without having the ratification or the approval of
registered voters. Or every decision made by the supreme
court forming part of the constitution of Great Britain makes
a change and is effective immediately. Here we follow a
particular procedure.
Take Note: Characteristic of a Written Constitution
1. Broad
2. Brief
3. Definite
to make it definite, the interpretation of the constitutional
must be clear.
Question: How do you construe the provisions of the
constitution? Whether it should be treated a self-executing or
non self-executing?
Answer: Difference between self-executing and non
self executing
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Self executing assumes that the provisions of the
consti are complete. And being complete, you need not
pass an enabling law in order to enforce or implement it.
it is complete by itself
Non self executing those provisions that are only
guidelines or principles that would guide the congress
on what laws to be passed or guide the SC on how the
provisions of the constitution shall be interpreted or how
the laws passed by congress should be construed or
guide the president in the passing or implementing of a
law.
Ex. Article II provisions of the constitution
Being non self executing, they cannot be used as basis for
judicial action. Meaning, if it is not followed, you cannot go to
court and ask for judicial relief saying that that action of the
government is contrary to Article II and therefore
unconstitutional. You cant use that as basis because accdng
to the SC in many cases
(Angara vs WTO)
those provisions in Article II are not self executing.
They are mere guidelines or principles that would guide the
government on how to go about with their functions. They
need a LAW in order to enforce or implement them.
Case: Manila Prince Hotel vs GSIS
SC said a provision lays down a general principle such
as those found in art 2 of the 1987 consti is usually not self
executing but a provision which is complete in itself and
becomes operative without a aid of a supplementary or of an
enabling legislature or that which supplies sufficient rule by
means of which the right it grants maybe enjoyed or
protected is self executing.
Thus, the constitutional provision is self executing if the
nature the extent of the right conferred and the liability
imposed are fix by the constitution itself so that they can be
determined by an examination and construction of its terms
and theres no language indicating that the subject is
referred to for legislative action.
Question: When there is doubt whether the provision is
self executing or not, how do you resolve the doubt?
Answer: it has to be resolved in favor of self
executing unless it is expressly provided that he legislative
act is necessary to enforce the constitutional mandate the
presumption now is that all provisions are self-executing. if
the constitutional provisions are treated as requiring
legislations instead of self-executing, the legislature would
have the power to ignore and practically nullify the mandate
of the fundamental law which is too dangerous.
Question: won it is prospective or retroactive,
Answer: of course, it should be construes as
prospectively applicable.
Question: won directory or mandatory,
Answer: it is always mandatory.
INERPRETATION OF THE CONSTITUTION
whenever the words used in the constitution must be given
their ordinary meaning except when technical terms are
employed, then you should give them ordinary meaning.
Ex. People -- could be inhabitants or residents (ordinary
meaning) in case of ambiguity, it should be interpreted in
accordance with the intent of the framers. Whether people
only refer to qualified voters or to all residents regardless of
citizenship.
understand how the word is being used in the provision or it
ha to be interpreted as a whole.
POLITICAL LAW
it is a branch of public law which deals with the
organization and operations of the governmental
organs of the state and defines relations of the state
with the inhabitants.
STATE
group of people, more or less numerous, occupying a
definite portion of the territory, having a government
which people render habitual obedience.
ELEMENTS OF THE STATE
1. People
2. Territory
3. Government
4. Sovereignty
SOVEREIGNTY VS DOMINION
1. Sovereignty or Imperium
refers to the right to exercise functions of the state of he
government to the exclusion of other state. power to
rule; the highest ruling authority.
2 aspects:
internal- supreme power of the state to rule within
external- enjoyment of independence or freedom
from external control
2. Dominium
power of the state to acquire or own property such as
lands or natural resources
Question: What do we have over Sabah?
"and all other territories over which the Philippines has
sovereignty or jurisdiction"
we can only assert dominium because they dont have a
government there.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
TAKE NOTE: in relation to acquisition and ownership of the
property, the state may be sued. But if the property is owned
by the state in its sovereign capacity, it is immune from suit.
Because one of the characteristics in sovereignty is
immunity from suit.
Question: Who exercises sovereignty? because state
is abstract and somebody has to be delegated to exercise it.
DIFFERENT KINDS OF SOVEREIGN
a. Legal sovereign
- refers to the supreme power to pass or enact laws.
b. political sovereign
Question: During Japanese occupation how do you
treat the government at that time in relation to the inhabitants?
is there a change in sovereignty in belligerent occupancy?
Answer: NO. The exercise of sovereignty is merely
suspended. Laws of Commonwealth government
established by US: Political laws are merely suspended,
they are not abrogated, nullified, repealed. Civil law and
penal laws remain valid unless they were repealed or
changed by the belligerent occupant
Take Note: In a belligerent occupation, what may be
suspended is the exercise of the rights of sovereignty with
the control and government of the territory occupied by the
enemy passes temporarily only to the occupant.

- refers to the people in so far as their power to choose the Question: After the liberation, when we were liberated
representative of the government. it is the sum total of all the from the Japanese control, what happens to the law of the
influences which lie behind the law. Japanese?

c. actual or real sovereign Answer: They were automatically abrogated if political

in nature and political laws of the commonwealth are
- one who actually heads the government and governs resumed or revived. But laws of the second republic of the
philippine which were not political in nature, like judgments
d. titular or ceremonial sovereign of the courts, they remain good and valid.

- exercises the ceremonial functions of the state EFFECT OF CHANGE OF SOVEREIGNTY:

CHARACTERSITICS OF SOVEREIGNTY: Spain to US by virtue of treaty of Paris

laws of Spain are automatically abrogated. municipal laws
1. Permanent remain unless they are repealed.
- cannot be transferred
2. Exclusive EFFECT OF REVOLUTIONARY GOVERNMENT:
- once it is vested in one then it stays there
until destroyed (REPUBLIC VS SANDIGANBAYAN, July 21, 2003)
3. Comprehensive and Absolute
- applies to those within the boundaries - a revolutionary government is bound by the constitution,
4. Indivisible and Inalienable however, it did not repudiate the covenant or the declaration
- cannot be transferred; the same way it repudiated the constitution.
5. Imperscriptible
- statute of limitation does not run against the - as a de jure government, it could not escape responsibility
state for the state's good faith compliance with its treaty
obligations under international law. (example: Cory
DOCTRINE OF AUTO- LIMITATION UNDER government)
INTERNATIONAL LAW:
- during the interim where no bill of rights existed, directives
- the Philippines adhere to general principles of international and orders issued by the government officers are valid so
law as limitation to the power, which means that any state long as these officers did not exceed the authority granted to
may, by its consent, whether express or implied, submit to them by the revolutionarily government.
restriction of its sovereign rights. There may thus be
curtailment to what is otherwise plenary in character. We had the Freedom Constitution as basis for the exercise
of the authority of government officers
while it is true that there is no limitation in the exercise of the
power, but in relation to deMocractic system of government. JURISDICTION AS A MANIFESTATION OF SOVERIGNTY
1. Territorial
EFFECTS OF BELLIGERANCY: 2. Personal
3. Extraterritorial
1. Suspension of exercise of US sovereignty over the
Philippine territory. Different kinds of jurisdiction
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
1. Territorial
-Jurisdiction or control over persons or
things found on its territorial limits regardless of the
nationality or the ownership
2. Personal
-Authority over nationals their persons or
properties or acts whether within or outside the country
Ex:
On civil status of a Filipino regardless where he is. He is
governed by our civil laws. Even if he contracted divorce in
America, such is not recognized in the Philippines. As far as
Philippine laws are concern, he is still married
3. Extraterritorial jurisdiction
-It is the authority of the state over persons
and things or acts outside its territorial limits by reason of
their effects to its territory
Ex:
The embassy people are subject to our laws
ELEMENT OF GOVERNMENT
Government
- is an agency or an aggregate of political institutions
which people render habitual obedience in order to give
power to it.
In exchange for the obedience of the people to that
government, the government has the responsibility to carry
out the will of the people
Government of the Republic of the Philippines under
Revised Administrative Code
- It is a corporate governmental entity through which
the functions of the government are exercised throughout
the Philippines including save as the contrary appears from
the context the various arms which political authority is made
effective whether pertaining to autonomous regions,
provinces, cities, or barangays, subdivisions or other forms
of local governments
It does not include the GOCCs. It only refers to those
exercising governmental or constituent or compulsory
functions.
GOCCs exercise proprietary or ministrant functions
CLASSIFICATION OF GOVERNMENT
1. De Jure
As to the existence or absence of control. If the government
has legal authority and control, the distinction is irrelevant. It
is only relevant when there is the existence of a legitimate
government however it has no control over the affairs of the
government. It only exists in law but not in fact
2. De Facto
Government has no legal authority but has actual control
over the affairs of the country. It is only relevant when there
are two governments existing at the same time. When there
is only one government that has both, you dont have to
make distinction.
Question: Arroyo government, Whether it was a de
jure government or not?
Answer: There is no other government existing at that
time after she succeeded by operation of law when Estrada
was considered to have resigned
Question: Revolutionary Government of Cory Aquino?
Answer: It did not follow any constitution to operate at
the beginning. It was where people in theory directly seized
the power from the past government and that past
government was not able to maintain its operation against
that emerging government of Cory. In which case there is
only one government that has the control which was later
recognized as legitimate first by the members of the
international community and later by the people themselves
when they ratify the constitution and elect public officials
particularly members of the Congress
THREE KINDS OF DE FACTO GOVERNMENT
1.De facto Proper
2.Governmental paramount force
3.Independent government
Co Kim Chan v. Tan Keh
1.De facto Proper
The government that gets possession and control of or
usurps by force or by the voice of majority the rightful legal
government and maintains against the will of the latter such
as government that is established successfully after a coup
de etat
2. Governmental paramount force
What we had under the Japanese occupation. There was a
de jure government which was the Commonwealth
Government. It has the rightful authority because it was
established with the consent of the US government and
there was the Japanese Government that actually exercises
the rights of sovereignty but it has no recognition of the
rightful authority either by the US or the people/inhabitants of
the Philippines at that time.
3. Independent government
This is established by the inhabitants of the country who
raise insurrection against a parent state. We could have that
in the case of Aguinaldo the first Philippine republic they
asked for recognition from the community of nations but they
failed. It lasted for a month anyway. The Malolos republic
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
only that it had lacked the recognition of the family of nations.
It could have been de facto but it was not legally recognized
as such.
MANNER OF CHOOSING THE HEAD OF GOVERNMENT
1.Presidential
2.Parliamentary
1.Presidential
When you have president who is chosen directly by the
people for a fixed term of office
2.Parliamentary
Prime minister chosen by the members of the
parliament who are directly chosen by the people
however he enjoys indefinite term of office. He stays in
power so long as he holds the trust and confidence of
the members of parliament.
1973 Constitution provided for a parliamentary system. Mr
Marcos called himself as prime minister. There was no
president so also declared himself as president. Prime
minister and president at the same time.
The constitution was amended adopting a modified
parliamentary system of government under the strong
leadership of a president to be chosen by the people through
a direct election but the term of office is six years with no
provision on re-election. It could be indefinite.
There was a prime minister. He was nominated by the
President, elected by the interim Batasang Pambansa with
an indefinite term. He stays for as long as he holds the trust
and confidence by the interim Batasang Pambansa.
Interim Pambansa was chosen directly the people by
regions. We were divided into thirteen regions and term is
six years also.
It can be dissolved by the prime minister but effective only
upon the calling of a special election by the president.
Can the interim pambansa remove the prime minister
through a vote of no confidence?
Effective only upon the nomination of the president of a new
prime minister. If not, the prime minister stays.
TAKE NOTE: What is important on the difference
between presidential and parliamentary are these
principles on separation of powers and the fusion of
powers
Under a presidential system of government, they observe
the principle of separation of powers. TO each its own. Each
branch is assigned with the function by the constitution
which cannot be defeated with or usurp by the other branch
otherwise that would be a violation of the separation of
powers and there would be a question on the validity of the
exercise of the power by a particular branch contrary to the
principle of separation of powers.
Question: Why is there a separation of powers in a
presidential system?
Answer: Because the ones heading the branches of
government do not owe each other's function. They are
accountable to directly to the people. The people chose
them.
On the other hand, in a parliamentary system of
government, there is fusion of the powers particularly the
powers such as the executive and the legislative powers are
fused or can be exercised by these two branches of
government interchangeably. Why is that?
Because the prime minister is chosen by the parliament. he
owes his powers to the parliament. he is the head of the
political party dominating the parliament. In fact the cabinet
members of the prime minister are at the same time
members of the parliament so what do you expect from them?
That they exercise executive functions, they do also exercise
legislative powers. So you have members of the parliament
who are also members of the cabinet.
In Great Britain in fact the Lords who are members of the
Supreme Court come actually from the parliament. Not only
that there is fusion between executive and legislative, there
is also fusion between legislative and judicial branch.
Parliament System
- where Members of the Parliament are also the
Members of the Cabinet, not only do they
exercise legislative functions, they also
exercise executive powers.
- In Great Britain, the members of the Supreme
Court come also from the Parliament. Not
only is there fusion between the legislative
and executive, there is also fusion of
legislative and judicial branch. That is how
unique the government of the Great Britain.
-
Separation of Powers is Adversarial
- Because while there is separation of powers,
they observe check and balance to maintain
the separation of the powers because one
can be powerful by just exercising its own
power.
- Instance: if youre a member of Congress you
can make any kind of law if there is no
checking, like allowing to kill the President,
they can pass a law. There has to be some
checking.
- To maintain the balance of these powers; to
guarantee there is indeed the independence
in the exercise of the powers; to protect the
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
people from any arbitrary control by any of
these branches of the government
- Between these two types of government
(Presidential and Parliament), Presidential is
the most adversarial system of government.
They do not trust each other.
- (It is surprising that in this administration, the
legislative and the executive branch is
chummy but the President is getting
suspicious of the judiciary. Atleast the
Congress is neutral with respect to the
judiciary. During the Arroyo administration,
they can see eye to eye, the Congress and
the President. Atleast the President then is
kind of friendly to the judiciary. But now, we
are always under suspicion every time we
issue orders and decisions, especially TRO.
It is unfair to the whole institution that they
assume, even if there are indeed judges and
justices selling injuctive reliefs. But they must
be very careful because they might affect the
whole institution; they have to pinpoint the
particular justice/judge not the whole system
because its dangerous and challenging
these days because of the relationship of the
three branches of the government)
DIVISION OF POWERS between NATIONAL and LOCAL
(How powers are divided between National and Local)
Unitary System
- When powers are concentrated in one single
instrument (government?)
Federal System
- When powers are equally shared between the
national government and the local
government
Unitary System is the kind of system we have today. But
weve been wanting to have Federal System, especially on
financial matters because 80% of our taxes goes to the
national government. And rich LGUs are complaining
because they have to share their resources to other LGUs, if
only they are independent from the national government
then they would enjoy their own resources.
Since the system is Unitary, take note on the matter of
making laws, these LGUs cannot make laws contrary to the
laws passed by Congress.
This is the issue with the fundamental law governing the
Bangsamoro, it is not only autonomous but independent
from the national government and practically an associate
state.
Associate State
- It is exercising powers equal to the national
government and it has been recognized as
independent from the national government.
(more will be discussed later on)
This is the reason that until now, they cannot pass the law on
Bangsamoro because of some questions on the
constitutionality relating to the operation of that movement.
There will be a Parliamentary system of government if
Bangsamoro will be established and they will be more
independent in their finances. They will have their own
source of revenue, they will still be subsidized by the
national government. In terms of maintaining peace and
order, their laws will be independent from the national
government.
If there is any question on the classification of government
on Unitary system, concentrate on the concept of
Bangsamoro on the issue of local government units.
FUNCTIONS OF THE GOVERNMENT
Constituent Function
- Mandatory functions of the government.
Basically exercising the three powers of the
government: executive, legislative and
judiciary.
- ex. maintaining peace and order; defining
relationship between parents and children;
determination of rights of individual in a
contract
- So long as the government exercise
constituent function, it is immuned from suit.
Ministrant/Proprietary Function
- functions which can also be exercised by
private corporations and entities
- ex. Distribution of water; housing
Take Note: No more distinction between Constituent and
Ministrant functions in terms of obligation, because now,
ministrant is no longer an optional function like housing, it
becomes mandatory because of the provision on the
obligation of the State to promote social justice. Giving those
less in life more in the law. State has the obligation not only
to exercise its function but to provide its people, especially
those less in life, the basic services such as water, electricity,
education and housing.
So what used to be functions that are relied to the private
corporations or entities are now also being exercised by the
State. If it is the exercise of these functions (providing
housing), the agencies providing for those services are not
immune from suit; they are suable. Like SSS, providing
medical insurance, ordinarily the State should not engage in
that kind of business and just to give it to private entities but
there too many people who cant even afford paying the
premiums and so the State mandatory provide for that
insurance in case they need medical assistance. Or housing,
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the PAG-IBIG, it is not the responsibility of the government
to provide low cost housing units to the people but under the
principle of promotion of social justice, which is mandatory
under the Constitution, now it is mandatory on the part of the
government.
Doctrine of PARENS PATRIAE
- the government, as the guardian of the rights of the
people, may initiate legal action for and in behalf of a
particular individual.
- Such as the case of Government of Philippine
Islands vs El Monte De Piedad (December 16,
1916)
o involving a child who has been left with
properties by his natural father. But in the Last
will of the father, he appointed his brother to be
the guardian of the child and the mother
contested that she is the natural mother of the
child and should be the guardian. The court
ruled in exercising the principle of Parens
Patriae that the State acts as a guardian for
those who need protection, especially the
children and women and the disabled and thus,
the court decided in favor of the mother, for the
best interest of the child because the court
believes that the mother will always do what is
best for the child as compared to the uncle
(brother of the natural father). The court justified
by invoking Parens Patriae, that it acted as
guardian of the child.
We were discussing the different kinds of government,
might as well include in the federal system of government
the concept of an associate state. For a comprehensive
understanding of this concept in relation to BBL, read the
case of the Province of North Cotabato vs. Government
of the Republic of the Philippines Peace Panel, October
15, 2008. An association was described as when two states
of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegate certain
responsibilities to the other, the principal, while maintaining
its status as a state. Free Associations represent the middle
ground between Integration and Independence. So while it
may not be granted independence and still it may continue to
remain part of the Republic, it is recognized as a state
independent of the national government. Example of these
kind of states, we have an associate state relationship with
the United States are the newly formed states of Micronesia
and the Marshall Islands in the Pacific.
In the US Constitution of International Practice, free
association is understood as an international association
between sovereigns. In the international practice, the
associate state arrangement has usually been used as a
transitional device of former colonies on their way to full
independence. So that is what we are afraid of that it is
merely a ploy to establish the Bangsamoro when eventually
the main purpose of which is to sever ties with the national
government or from the country itself and declare its
independent status.
Take note in the case of the Province of North Cotabato,
it was emphasized by the Supreme Court that in the 1987
Constitution provides that no province, city or municipality,
not even the autonomous region of muslim mindanao, is
recognized under our laws as having an associative
relationship with the national government. Indeed the
concept implies powers to go beyond anything ever granted
by the constitution to any local government. It also implies
recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in its
jurisdiction other than the Philippine State, much less that it
provides for transitory status that aims to prepare any part of
the Philippine territory for independence. So take note of
that.
FUNDAMENTAL POWERS OF THE STATE
1. Police power
2. Eminent domain
3. Taxation power
SIMILARITIES BETWEEN THE 3 INHERENT POWERS
Inherent even without express conferment of the
Constitution upon the State, the three powers can
still be exercised by the State;
Necessary and Indispensable the state cannot
be effective without exercising the powers;
These are methods wherein the State interferes
in the exercise of the rights of individuals such
as police power in the regulation of the use of
property. The government does not take away your
property but merely regulates its use. As for eminent
domain, it limits the ownership over property.
Taxation, on the other hand, also limits the fruits of
your property. But suffice to say that there is
compensation for the interference by the State over
such rights, what are the compensation? As to
police power, it is the altruistic feeling that the
welfare of the people is being promoted. That is still
compensation, however not in monetary terms. For
taxation, it is the infrastructures and services. It is
only in eminent domain that there is monetary
consideration called just compensation equal to the
fair market value plus consequential damages
(minus any consequential benefits).
These are exercised by the State, primarily
Congress by making laws. They have to make laws
for police power. For eminent domain, they cannot
validly take the compensation out of the public funds,
so they must have to make an appropriation to take
property. In so far as taxation is concerned, they
cannot just collect taxes without any legal basis,
there has to be a law authorizing the imposition and
the collection of taxes.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
What are the differences? 1. Welfare of the people is the supreme law; and
POLICE EMINENT TAXATION 2. You will not harm what is not yours.
POWER DOMAIN
What is Liberty and Only the The fruits of This is basically the lawmaking power for the promotion of
regulated? Property. ownership of your property.
your property. the public welfare, therefore the power is lodged in Congress
Liberty is It does not but it may also be delegated to delegates under permissible
regulated in affect your delegation of legislative power.
such a way that liberty.
you cannot
have what is Of the 3 rights First and foremost you have the delegation of the power to
not yours. The of life, liberty
justification and property, 1. The President
being that the the most 2. Of Administrative Bodies
will for the regulated is
people is the property while 3. Local Government Units
supreme law. the less 4. The People.
regulated is
life. 1. PRESIDENT
To whom can By the State. Not only Only exercised
this power be government by the State
delegated? but also private through the In so far as the President is concerned, Section 21 Article 6
entities BIR. of the Constitution, under exercise of emergency powers.
engaging in the
business of
public utilities.
Requisites to justify the emergency power to the president
Purpose and The State The State The State for the purpose of promoting the public welfare or the
Necessity exercises takes private collects taxes general welfare.
police power property for for the 1) There has to be national emergency or war
for public use. necessity of
self-preservatio having a 2) There has to be a statute
n and government, 3) It is only for a limited purpose and limited period of
protection. without the time
government,
we cannot
have a State. It 1. There has to be national emergency or war
is the life blood
of the Question: Who is going to determine whether there is
government.
Precisely,
national emergency or war?
nobody is
going to work Answer: In so far as national emergency is concerned,
for the it may be the Congress or the President.
government
without that
money. You may remember the case of Drilon (was it the
Kind of Only noxious Those They are case of Drilon?)
property that property or beneficial for always
can be those harmful public use. wholesome. when President Arroyo declared a state of national
regulated to public Hence, the Taken for
welfare. They payment of just public purpose emergency that was sustained as constitutional by
can even be compensation. always, for the Supreme Court saying that the President
destroyed. services and should know better because she is the
Since they are infrastructure. Commander in Chief of the Armed Forces of the
noxious, there
is no just Philippines. And as president, she has the
compensation obligation to ensure that laws are faithfully
to be paid executed. And therefore she knows better the
when the status or condition of the country and may declare
property is
taken. It is a state of national emergency to justify the
enough exercise of power or the propose of Congress to
consideration delegate to her the exercise of the emergency
that public powers. So please read the Drilon case, (was that
welfare is
promoted or the Drilon case, I cannot remember anymore)
protected. where the gist of the case when the President
declares state of emergency but previous to that
POLICE POWER you can recall that there was also a definition of a
state of rebellion, that was during Estrada
The two legal bases of which or the justifications of administration. The same justification. So you go
exercising the power are: over that case. In that case, national emergency
was also defined where the sc said that the
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president can determine the presence of national
emergency. What consists of the definition of
national emergency is defined in that case.
But on the existence of a state of war, definitely, it is
not the President to say that there is a war. That is
constitutionally provided.
Question: Who determines the existence of state of
war?
Answer: It is congress, 2/3 vote is needed before
president can declare war. Although experts say
that should the president wait for the declaration of
war before she declares war when she is the
commander in chief of the afp. Theyre saying that
by the time there will be a determination, they were
already invaded. Now considering that the
president is a commander in chief, there is no
stopping from the president from declaring
war. But what is the difference if there is no
declaration of the existence of a state of war?
Then the president cannot exercise emergency
powers where she can appropriate funds in
order to meet the exigent circumstances of the
emergency or the reason for the declaration of
war or national emergency. That is the
difference.
2. There has to be a statute
A legislative enactment authorizing the president to
exercise emergency powers. Absent of a statute or
a law giving that power to the president, the
president cannot exercise that emergency power
that was emphasized in the case of Drilon vs
Ermita originally against Arroyo. What the
president can declare, a state of national
emergency. She cannot however exercise
emergency power in section 23, absent of any
legislative enactment allowing or giving her the
emergency power. So only a statute to justify.
3. It is only for a limited purpose and limited
period of time
The purpose of the delegation is to carry out the
declared policy of congress. There fore it must
state the purpose of the delegation of the power so
that exercise of the legislative power here should
be limited only to the purpose for which it was
delegated to the president.
And it only for a limited period of time meaning: for
as long as the emergency, reason for the
delegation exists, she or he continues to exercise
the power. So if emergency ceases, it means he
ceases to exercise the power but he can exercise
the power only until the adjournment of the next
session of Congress. Therefore, for a certain
period of time, the legislative power for a particular
purpose may be shared by the Congress and the
president because it can only if not withdrawn by
resolution of Congress but can be exercised by
president only until the next adjournment of
session congress.
TAKE NOTE: delegation is by a statute. Resolution need
not be a statute. It is enough that there is resolution passed
by Congress withdrawing the exercise of a power. If it is not
passed, then by operation of law, it ceases at the end of the
next adjournment of next session of Congress.
Take not guys of the case of Abacada Group, et al vs
Purisima
because in that case, dba you recall the case of increase of
12% of vat by Arroyo and they were saying that the president
cannot do that because the president ought to know that was
the taxation power and not emergency power. There is
another power here under the presidents power of
delegation of legislative power, Section 28. If there is section
23 for emergency power, theres section 28 where tariff
power is granted to the power of the president.
Take note of section 23 and 28 (Im not sure with the said to
sections cause what I can hear is section 20 and 20)1
these are favorites in the bar exam.
So example of section 23 is the Drilon case.
Section 28, it was the case of Abacada group et al vs
purisima. In that case, president announced the increase of
vat to 12% and theyre saying that the president does not
have that power because hers is limited only to tariff and not
to domestic taxation. In this case, sc said that there is no
usurpation of the legislative power of the congress by the
president because all that the president did here is to
ascertain the facts through the proper agency of the
government under the president. And once it was
established that the requisites of the law has been complied
with, all that the president can do is to impose the law. She
was not imposing or passing the law for the increase of vat
but just simply implementing the law after the finding of facts
that the requisites for the increase of the vat.
So in so far as the president exercising the legislative power,
Section 23 and 28.
2. ADMINISTRATIVE BODIES
In so far as the administrative bodies, these are the
department under the executive branch exercising not
only executive functions but as well as to certain extent,
legislative function in so far as the promulgation of rules
and regulations implementing existing laws. Theirs is limited
only to rule making rather than law making. Theirs is only
limited to law executing rather than law making.
1
By the transcriber
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Take Note: that their exercise of the power is limited tested
by COMPLETENESS TEST & SUFFICIENCY STANDARD.
Remember the case of Santiago
relating to RA 6735 where the resolution of the COMELEC
was declared unconstitutional because the basis of the
resolution was ra 6735 delegating the power to the
COMELEC to promulgate the rules in so far as providing
procedure on how to amend the constitution through
initiative. But the law itself was insufficient. It was not
completely (..inaduible). there was no justification for the
COMELEC to pass resolution and practically make a law
governing procedure on how people can initiate amendment
to the constitution. The chacha then initiated by the people of
Ramos was declared unconstitutional.
Also take note of the case of Hill Check (not sure) vs the
Department of Energy
regarding on imposition of universal charge by the DOE
collecting taxes for funding electrication nationwide. It was
charged against indivitious(?) bill for consumption of big
electricity and this was justified by the sc by saying that all
that the doe did was to implement the law which was
complete and sufficient. What was the standard that made it
sufficient? Police power promotion of the general welfare
which was complied with by the law.
So when we say COMPLETE, theres nothing left to
delegate to determine what the law is but by simply
implementing the law by promulgating rules and regulations.
Well be discussing this again when we go to administrative
law.
3. LOCAL GOVERNMENT UNITS
Lgus who can be delegated with legislative powers. You take
note that in so far as the law making bodies of the lgus such
as regional autonomous region, we call then regional
autonomous bodies; province, sangguniang panlalawigan;
city, s. panglungsod; municipality, s. bayan; barangay, s.
Pambarangay.
They do exercise legislative power but they should not
exercise it contrary to the constitution neither contrary to
statutes, laws passed by congress. They cannot even pass
in the guise of promoting general welfare, ordinances or
resolution that amend national laws. They cannot do that. So
you take note of that because there cannot be a state within
a state. That was emphasized. Our system of government is
unitary. So the basic principle, Cruz vs Paras, that they
cannot pass a law in the guise of promoting the general
welfare by prohibiting an activity that is allowed in the
existing laws. They can only REGULATE. Not prohibition but
regulation only.
Then the MMDA, it is an administrative body, it is not a
political subdivision and therefore does not exercise police
power.
So you have in those cases, MMDA vs Trackworks
theres nothing in the act no. 7924 granting mmda police
powers let alone legislative power.
In THE CASE OF LUZ VS ARANETA,
sc said that power of eminent domain can be used as power
to implement police power.
4. PEOPLE
Question: How do people make laws?
Answer: Through the process of INITIATIVE &
REFERENDUM. DUHA HA! 2 ways.
INITIATIVE 10% nationwide wherein each legislative
district is represented by at least 3% of its registered voters.
This is to propose statute.
Regional Bodies, 2,000 of the registered voters.
Province 1000 of the registered voters.
Highly urbanized cities 500 of the registered voters
City 100
Municipality I think it is also 100
Barangay only 50.
That is initiative.
In REFERENDUM - the sanggunian that proposes or it is
congress that proposes the law its people to either approve
and accept it, adopt it or reject it in a referendum.
2 WAYS TO TEST THE VALIDITY OF EXERCISE OF
POLICE POWER
1. Subject Matter must be Lawful
2. Means in Achieving the Purpose must be Lawful
a) Means is never justified by the purpose. Must
concur. Both must be legitimate.
EMINENT DOMAIN (ED) POWER
- Power to confiscate private property for public use
upon payment of just compensation and observance
of due process of law. (*favorite in the bar exams)
- Process is EXPROPRIATION.
Question: where there is an agreement between the
government entity and the property owner where the owner
agreed to sell his property but the sale didnt push through
can the government now exercise Eminent Domain?
Answer: NO. What should be filed is SPECIFIC
PERFORMANCE OF AN OBLIGATION. Eminent Domain is
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
out of the question. Fom the start, the property owner must
have refused to sell his property to the government so that
the government is compelled to confiscate the property
through the exercise of the power of Eminent Domain.
Question: What is the legal basis for the exercise of
Eminent Domain?
Answer: REGALIAN DOCTRINE.
REGALIAN DOCTRINE
- All lands and natural resources belong to the state
originally.
- You have no reason to refuse the state.
ENTITY EXERCISING ED
If it is the NATIONAL GOVERNMENT THAT EXERCISES
EMINENT DOMAIN, the question of the purpose whether it
is public use or not is beyond judicial inquiry. In other words,
it is a political question which the courts do not have
jurisdiction to look into. IF IT WERE THE NATIONAL
GOVERNMENT EXERCISING THE POWER.
IF IT WERE ONLY A DELEGATE EXERCISING EMINENT
DOMAIN, two questions may be the basis for judicial inquiry
or determination. FIRST ON PUBLIC USE (NECESSITY OF
TAKING) AND SECOND, PAYMENT OF JUST
COMPENSATION.
But if it were the National government like the
Republic of the Philippines through the DPWH, the
matter of necessity of the taking that is beyond judicial
inquiry, it is a political question. What is left to be
determined by the courts to determine is the issue of
JUST COMPENSATION.
REQUISITES OF VALID EXERCISE OF EMINENT
DOMAIN:
1. There must be private property;
2. There is taking in the constitutional sense;
3. Taking must be for public use;
4. There must be payment of just compensation;
5. There must be observance of due process of law.
(EXPOUNDED)
1. There must be private property
- What is private? If it is owned by private individual.
- If it is government property, you could take it without
compensation, is that it? Remember that the state
has dual personality. It is in sovereign capacity and
private capacity. It may acquire or own property.
IMPERIUM OR DOMINIUM.
- IMPERIUM, you dont have to take it because it
already belongs to the state, no need for the
exercise of ED.
- If the property is owned in its private capacity, there
must be payment of just compensation. What kind of
properties? PATRIMONIAL PROPERTY. TAKING
OF PATRIMONIAL PROPERTY IS
COMPENSABLE.
- ALL PRIVATE PROPERTY THEREFORE
CAPABLE OF OWNERSHIP MAYBE
EXPROPRIATED.
- There are exceptions. What about services, can
they be subject of expropriation? Yes because they
are considered property. What is property? Property
is subject of appropriation which you can sell or buy
which are of course within the commerce of man.
Can you expropriate the services of a woman who
refuses to serve you? No. That would be involuntary
servitude. Violative of the constitution. But public
services like utilities, can they be subject of
Expropriation? Yes.
- Case in point, PLDT v Republic.
o These are properties that can be subject of
appropriation which are within the
commerce of man. The only exception to
this are (1) MONEY. You will expropriate
money and pay him with money. Why not
just use your money in the first place? Also
(2) CHOSES IN ACTION. These are actions
for the collection of sum of money. The end
result is still money. You cannot expropriate
money if it will be awarded in favor of a
private person because it is still to be
compensated also with money. That is the
concept of ED. So they cannot be the
subject of expropriation.
- What about private property devoted to public use
be subject to expropriation? E.g. cemetery.
- Case in point, City of Manila v Chinese
Community of Manila.
o The city passed an ordinance ordering the
Chinese Cemetery to allocate a portion of its
cemetery for pauper dead. They are not
appropriating any funds saying it is police
power, for public purpose, for public benefit.
It will affect the public, it was justified then
by the city of Manila. Can that be done
without paying just compensation? Supreme
Court said NO. This is Eminent Domain
because it is beneficial, the land is not
noxious. Therefore that could be the
subject of expropriation EVEN IF THE
PRIVATE PROPERTY IS ALREADY
DEVOTED TO PUBLIC USE, THAT CAN
BE THE SUBJECT OF EXPROPRIATION.
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2. TAKING in the constitutional sense
- Is it limited to evicting the property owner from his
land Physically? Take note of the case of Republic v
Castelvi. It is not required that the owner is actually
deprived or dispossesed of his property because
even just depriving him of the beneficial use of his
property still in possession but he cannot use the
property that is tantamount to taking that is
compensable. E.g. you have a land and adjacent to
it is a dam owned by government. Whenever it
overflows, all the water goes to the land. Even if you
planted it with certain plants, they all die because
they are drowned by the water overflowing from the
dam reservoir owned by government. Can you
demand payment of just compensation from
government? Yes you can demand because in
essence there is taking, you are deprived from
beneficial use of your property. In the case where
you have property devoted to poultry adjacvent to
property owned by government where they practice
how to fly. Whenever the train pass through your
poultry, all your chicken die. Is there any taking there
that is compensable? Yes. You can demand
payment of just compensation because you are
denied, deprived of the purpose for which you intend
your property. Another case, you have property
adjacent to property owned by NAPOCOR but there
is a warning that you should not be within 200
meters because you might die of radiation, cancer or
whatever. For fear of your life you cannot use your
property. That is tantamount to taking of your
property which is compensable.
- Take note of requisites for taking:
1. There must be entry of the property.
o The manner must be under color of title or
warrant of authority. Meaning the entry in
property in the first place must be legal or
legitimate. Not as a trespasser or squatter.
For example. This is NAPOCOR case. In
this case, the basis for the determination for
payment of just compensation, the point of
reference is the actual taking of the property.
NAPOCOR entered the property under the
honest belief that the property is
government property. This was in 1978.
Later, an owner appeared saying claiming
thats not owned by government, that is ours.
Now they refused. Now NAPOCOR used
the property in which they were compelled
to file an expropriation case against the
owner. Remember that it was already used
by NAPOCOR since 1978 but case was
filed in the 1985. So what is the point of
reference for taking, 1978 or 1985? Was
there taking in 1978? NO, as there was no
color of title or warrant of title when they
entered the property. It should be reckoned
from the time when the owner asserted his
claim on the property in which case was
when the case for expropriation was filed
against the property owner. That then is the
basis for determination of just
compensation.
o SO TAKE NOTE THERE MUST BE UNDER
COLOR OF TITLE for first entry of property.
2. Entry must not only be for a momentary
period
o Meaning the purpose of the entry must be to
permanently occupy it and use it.
o In the Castelvi case,
it started with a lease. Later because
the heirs of Castelvi refused to
renew the lease with government,
the government was compelled to
exercise its expropriation power.
When should be the basis for the
determination of just compensation?
Was it for the entire time when the
government first entered the
property under the lease contract or
should it be at the time filed an
expropriation case against the
Castelvis? SC said that at the time
the lease was executed, the
contract of lease, it was definitely
not for a permanent basis. It was
momentary, temporary, therefore
there cannot be taking at that time
until there was expropriation
already filed by government against
the Castelvis.
3. Property must be devoted to public use or
otherwise, if formally appropriated or
injuriously affected
o PUBLIC USE used by the public. Broadened
now, anything that is beneficial to the public.
Not even the public itself but the greater
majority of the public that is considered
already as public use. Even for a
socialized housing (asked in the bar several
times), small landowners, even if there are
only 50 families who will be benefit by the
expropriation of the property described for
low cost housing, it was considered public
use because it redounds to the benefit of the
greater number or majority of the people.
Even if it is for tourism purposes, it is still
considered as PUBLIC USE.
o Regarding this term of public use. Even for a
socialized housing, it is for public use.
Several times, its for the farmers or the
small land owners. Even if there are 50
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
families who will be benefited by
expropriation of the property, the low-cost
housing, was considered as public use
because it redounds to the benefit of the
greater number of people.
o Even if it is for tourism purposes, it is still
considered as public use.
o That was the case of Ardona vs. Reyes. For
an individual, Manosca vs. CA, when the
property was expropriated by the
government. This was the birthplace of Felix
Manalo, the founder of Iglesia Ni Kristo.
Since he has contributed a lot to history.
That only few would actually benefit from
the expropriation of the property does not
necessarily diminish the essence and
character of public use.
I think there is a recent decision regarding public use and
that is the case of Vda De Ouano. The essence of public
use is for public utility. So the moment it ceases, can you
recover the property? Anyway, we will discuss more of that
regarding the recovery of property.
Utilization of the property must be in such a way as to oust
the owner and deprive him of the beneficial enjoyment of the
property. These five requisites must be present. Otherwise,
there cannot be any taking in the constitutional sense. In
which case, if there is no taking, there cannot be a valid
exercise of eminent domain.
If it is the National government who is exercising the
power, the determination of whether or not there is public
use is beyond the ambit of judicial inquiry but if they were to
delegate, then it can be a subject of judicial determination.
If a property has already been devoted for public use, can it
be taken for another public use by the government? There
was a public cemetery and they want to have access roads
which will pass through the cemetery. It can be done
because it is plenary. The power is absolute. However, if it
was delegated, it is not enough. There is section 19 of the
LGC delegating the power to the local government units.
That is not enough because that is only a general authority.
They need a specific grant of congress to expropriate a
property, already devoted for public use, for another public
use.
What if the property has already been expropriated for a
specific public use, can it be sold to a private individual?
YES. because the moment it is expropriated, it is already
owned by the government and it can use the property in any
manner that it wants.
Asias Emerging case (?). I will give you the citation next
meeting.
The SC said, like any owner of the property, the government
can do anything with the property but we have to make a
distinction. If the property is taken for a specific purpose, that
would be a different story because it was not used for the
purpose for which it was intended.
Example: IT Park. There was no full payment of just
compensation and the owners were asking the return of the
properties to them because its 30,000 per square meter.
There was this case wherein they were not given just
compensation and the property was taken during the 40s
and the government is enjoying the benefits of that land.
What would happen if the property was not used for the
purpose for which it was taken.
In the case of Ouano vs. Republic, t
he SC said the owner has the right to recover the property
especially if they objected to the expropriation. However, if
the taking was absolute like if there were no conditions as to
the taking, like an absolute fee, in which case the
government can still use the property even if its different
from the original purpose or even sell it to a private
individual.
JUST COMPENSATION
It is the full and fair equivalent of the property taken.
Fair market value of the property means it is the price of
the property whereby the seller is not compelled to sell,
neither the buyer is compelled to buy. In addition to the
fair market value, you have the consequential damages
if there is any. If there is consequential benefit, it would
be deducted from the consequential damage. Take
note of the relevant laws governing or defining just
compensation. It is not Congress who determines just
compensation, it is a judicial function. The Congress
can only define it to guide the Court but ultimately it is a
judicial function.
RELEVANT LAWS - JUST COMPENSATION
1. IF it is a NATIONAL INFRASTRUCTURE, it is RA 8974
which is based on 100% payment of the value based on the
BIR zonal valuation of the FMW whichever is higher.
a) National infrastructure is when it affects not just
locally but nationwide. For example, transmission
wires since it would affect nationwide. National
roads and bridges are national infrastructures. So
the requirement in RA 8974 is that the national
government taking the property must deposit to the
bank, as a requirement for the writ of possession,
100% of the full amount.
2. However, if it is an ORDINARY EXPROPRIATION, under
Rule 67 of the ROC, it is 10% of the assessed value of the
property for taxation purposes. In issuing the writ of
possession, the Court has no discretion, it follows the law.
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Before the Court issues the writ of possession, two
requisites must be established:
FIRST: That it is for public use.
SECOND: that there is a deposit of the just compensation.
a) If its National Infrastructure, 100%.
b) If ordinary expropriation, 10%.
c) In so far as expropriation of LGUs, for purposes of
determining provisional just compensation and
issuing a writ of possession, all that is required is
50% of the assessed value of the property for
taxation purposes.
Take Note: that once deposit is made, the government can
enter the property. This is however without prejudice to the
final determination of just compensation by the Court. If
there is already the declaration that the property is
expropriated in favor of the government, then the next is the
payment of just compensation.
Question: What will happen next? Payment of Just
Compensation(JC). If it's appealed? You wait until the
judgment becomes final. Until when must the government
must pay the owner? BAR- Can you ask the recovery of the
property if there is no payment of just compensation?
Answer: GR is NO. You can't because non-payment for
JC is not a ground to recover the property. But, if there was
no payment of JC after demand WITHIN 5 YRS FROM THE
FINALITY OF THE JUDGMENT, then the owner has the
right to recover his property.
The owner is entitled to the following if alleged in the
complaint:
1. Legal interest of 6% per annum
2. Reimbursement for the Property Taxes paid for the
property prior to the transfer of title to the Republic.
"IN COMPLIANCE WITH DUE PROCESS OF LAW"
There has to be trial ha on the determination of JC. But
because this is very technical, the appointment of
commissioners by the court IS INDISPENSIBLE FOR DUE
PROCESS compliance.
Question: Is the commissioner's finding conclusive
upon the court?
Answer: NO. It's just recommendatory. Ultimately, it's
upon the court to decide JC.
BAR- In agrarian reform cases. The president can
expropriate property as provided in the constitution for
purposes of implementing CARP or urban development.
In Land Bank of the Phil vs. Honeycomb Farms Corp.,
Feb 29, 2012,
there is this mandatory application of the DAR formula in
the payment of JC computation IN AGRARIAN REFORM
CASES. So the court is mandated to apply RA 6657, sec. 17.
SC said "the DAR is the administrative agency as with the
implementation of CARP. While the RTC is required to
consider the acquisition cost of the land, the current value of
like properties, its nature, actual use and income, the sworn
valuation by the owner, the tax declaration and the
assessments made by the government assessors to
determine just compensation, it is equally true that these
factors have been translated into a basic formula by the DAR
pursuant to its rule-making power under Section 49 of R.A.
No. 6657. As the government agency principally tasked to
implement the agrarian reform program
In other words, the courts CANNOT IGNORE, without
violating the CARL, the formula provided by DAR for the
determination of JC.
RELEVANT LAWS - JUST COMPENSATION
So you now have the following laws applicable for JC
computation:
1. Rule 67, ROC
2. RA 7160(LGC)
3. RA 8974 (AN ACT TO FACILITATE THE ACQUISITION
OF RIGHT-OF-WAY, SITE OR LOCATION FOR NATIONAL
GOVERNMENT INFRASTRUCTURE PROJECTS AND
FOR OTHER PURPOSE )
4. RA 6657(sec. 17) (CARL)
SC added that in this case, the compensation to be paid
should not be lesser than the market value of the property.
So market value ha sa agrarian reform cases.
When the State exercises its inherent power of eminent
domain, the Constitution imposes the corresponding
obligation to compensate the landowner for the expropriated
property
TAXATION
It covers persons, property, occupation to be taxed
within the taxing jurisdiction. It is only relevant because
of the controversy of Pacman, so there might be a
question on Double Taxation.
Double Taxation
Is Double Taxation prohibited by Constitution? NO
There is Double Taxation if a person is imposed additional
taxes of the same character, on the same subject by the
same taxing jurisdiction on the same taxing period for the
same purpose. There is no prohibition in the constitution. It is
not allowed however if it constitutes as a violation of the
EQUAL PROTECTION CLAUSE.
SC assured the public that as long as it sits, taxation should
not be used to destroy anyone's property. But if your
property is noxious and harmful, police power can be used in
order to destroy or regulate that noxious or harmful property.
Power of taxation may be used as an implement of police
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power particularly in discouraging business or undertaking
sought to be restriced by the government. It can also be
used as to implement Eminent Domain(Just take note of the
new case contrary to this)
BAR- CHARACTERISTICS OF TAXATION IN PH:
1.EQUITABLE
2. UNIFORM
3.PROGRESSIVE
1. Equitable
- based on your capacity to pay taxes
2. Uniform
- It applies to all persons uniformly who are
situated to the same circumstances
3. Progressive
- as your tax base increases, there is a
corresponding increase in the rate.
What congress is encouraged to do is evolve a progressive
system of taxation.
ON THE GRANT OF EXEMPTIONS
BAR- In case of doubt whether you are subject to tax or not,
how should it be resolved? That you are subject to tax. It
should always be decided against the GRANT OF
EXEMPTION.
Example of a constitutional grant of exemption:
Charitable institutions, churches and personages 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.
It is regardless of who the owner is. Take note, only
PROPERTY TAXATION.
If it were a STATUTE, who can grant?
Congress, thru CONCURRENCE of MAJORITY of all the
members of congress, voting separately.
Art. VI, Sec. 28. No law granting any tax exemption shall be
passed without the concurrence of a majority of all the
Members of the Congress.
But if it were a TREATY GRANTING TAX EXEMPTION,
then it would require 2/3 votes of the members of the
Senate.
Question: Can you revoke a tax exemption?
It depends!
Answer:
1. If the grant of exemption is for a VALUABLE
CONSIDERATION, then it partakes the nature of a contract.
It will violate the non-impairment clause if revoked.
2. If gratuitous/generosity, the revocation can be done
anytime.
CONSTITUTION PROPER
PREAMBLE
You can have a constitution without a preamble
because it does not form an integral part of the
constitution. It is just an introduction.
Purpose:
1. To indicate the authors of the constitution We, the
sovereign Filipino people
2. It states and enumerates the purposes to which the
constitution was promulgated, the government was
established.
Are the binding upon the government? NO. It cannot be
used as basis for judicial action if violated when it is not
followed. Your remedy is election but not through judicial
action.
Does this violate the separation of the Church and the State
when it invokes the aid of the Almighty God? NO. It is just a
description of the kind of people that we are, that we believe
in God. So it does not violate the non-establishment of
religion neither the separation of the Church and the state.
Need to know:
Preamble is not part of the Constitution
It is not a source of rights and obligations
Lets have an introduction to the Philippine national territory.
This is a favorite in the bar examinations especially with our
problem with the Scarborough Shoal/ Panatag Shoal/ Bajo
de Masinloc in the West Philippine Seas or the South China
Sea. Do you understand? Thats the main concern here.
Definition of national territory
Article 1. National Territory- The national territory
comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which
the Philippines has sovereignty or jurisdiction, consisting of
its terrestrial, fluvial and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas. The waters around, between,
and connecting the islands of the archipelago, regardless of
their breadth and dimensions, form part of the internal
waters of the Philippines.
Briefly, what consist of the Philippine territory?
1. Philippine Archipelago
2. Other territories over which the Philippines has
sovereignty or jurisdiction
3. The territorial seas (Thats very important! Thats
what we are disputing over)
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
4. Internal waters i.e. the sea waters separating the
islands of the Archipelago.
Philippine archipelago, with all the islands and waters
embraced therein
How do you define an archipelago?
"Archipelago"
means a group of islands, including parts of islands,
interconnecting waters and other natural features which are
so closely interrelated that such islands, waters and other
natural features form an intrinsic geographical, economic
and political entity, or which historically have been regarded
as such (Article 46, UNCLOS).
In other words, an archipelago consists of islands and
waters. It is defined as a group of islands surrounded with
waters or a body of water studded with islands. We are
adopting the second definition of archipelago i.e. it is a body
of seawaters studded with several islands. How many
islands are there? 7,100 plus depending on whether its high
tide or low tide.
How did we acquire these islands?
Primarily by cession under the Treaty of Paris. What else?
You have other treaties that have been entered into by the
Philippines with Spain and the US where these islands are
ceded to the Philippines. Like for example what? You have
the treaty of Washington, you also have the US-British
Treaty. So you go over with these treaties. Maxi islands,
Turtle islands, Cagayan de Sulu, and Sibuto islands were
ceded by Spain to US then US to the Philippines. The only
island that wasnt ceded under the treaties is Batanes
Islands. We acquired these islands by virtue of occupation
and possession. Thats one of the reasons why we have to
redefine the definition of the national territory.
Under the 1935 Constitution, what was covered by the
archipelago are only those territories ceded by the treaties
entered by the Philippines primarily by the Treaty of Paris. If
we do not adopt the archipelagic doctrine, we would
practically segregate Batanes Islands as part of the
Philippine archipelago. So now its part of the archipelago by
adopting the Archipelagic Doctrine in the 1973
Constitution and eventually, the 1987 Constitution.
Insofar as what comprises the Philippine archipelago, you
dont question on that. It is only in determining the extent of
the archipelago. Because there is now a law
RA 9522 "An Act to Define the Baselines of the
Territorial Sea of the Philippines.
In determining archipelagic waters, consider the waters
around, between, and connecting the islands as part of the
Philippine archipelago because it says with all the islands
and waters embraced therein.
Under RA 9522, the definition has been modified. It has
been changed. Before we have the Spratlys Islands
particularly the Kalayaan Group of Islands(KGI) and the
Scarborough Shoal as part of the Philippine archipelago.
And so when we determine out internal waters, we connect
them with the main archipelago so that the waters
surrounding these islands were part of the Philippine waters.
Now, that has been changed with the reenactment of RA
9522 to be more compliant with the requirements of the
UNCLOS. Now, these islands have been excluded as part of
the Philippine main archipelago. They are now being treated
as a Regime of Islands. So with regards to the waters
surrounding these islands, you apply the principles in
international law. They are not anymore part of the
archipelagic waters. Theyre excluded from the main
archipelago.
Well go later to our claim with regards to the waters
surrounding the Scarborough Shoal. We are not interested
in the rock. Its nothing. Its just a rock which during high tide
protrudes. What were interested in is the surrounding
waters, as part of the discovery and occupation of the rock
and also as part of the 200-mile Exclusive Economic Zone
(EEZ) which according to the Chinese Government, overlap
with their claim over that portion. Thats why its called South
China Sea because its allegedly part of China. They have to
rename it also as West Philippine Seas because its part of
the Philippine territory.
Other territories over which the Philippines has
sovereignty or jurisdiction
Take note of the word or, not and it could either be
sovereignty or jurisdiction. Sovereignty in turn could either
be dominium or imperium. You need not have jurisdiction
and control over the territory in order to make it part of the
territory. Its just sovereignty and sovereignty could either be
imperium or dominium.
What are these territories that were claiming as part of the
Philippine national territory because either we have
sovereignty or jurisdiction?
1. Regime of Islands (KGI and Scarborough Shoal)
2. Sabbah
3. Guam
Kalayaan Group of Islands
Nevermind our claim over Guam. Its out of the question
already. What is concrete is our claim over the western part
of the Spratlys Islands nearest Palawan which we named as
the Kalayaan Group of Islands. In fact, some of the islands
are considered as barangays already. Spratlys has been
claimed by Malaysia, Indonesia, Taiwan, Vietnam, etc. We
are claiming the bigger islands as part of our territory. So our
claim rests not only on sovereignty but also on jurisdiction
reckoned from Tomas Clomas discovery and thereafter,
occupation by the Philippine Government.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Kinsa may gipapuyo didto? Mga navy ug Philippine Coast
guards. Sige ra ug dula ug basketball didto. Theres nothing
that you can do there guys.
But to stress the point that it is part of our territory, we need
to establish a government and so there are barangays
established there guys.
So take note of the basis of our claim over the KGI. Not only
was it acquired by us through discovery and occupation. It is
part of our 200-mile Exclusive Economic Zone. Lets talk
about our claim over Scarborough Shoal later.
Sabbah
With respect to Sabbah, what is the basis of our claim? Take
note of RA 5446 "An Act To Define The Baselines Of The
Territorial Sea Of The Philippines." Thats the basis of our
claim.
*Take note of the case of Magallona et al. vs.
Ermita (G.R No. 187167 August 16, 2011) which
discussing RA 9522 which amended RA 5446.
Once upon a time, Sabbah was owned by the Sultanate of
Sulu whose rights have been transferred to the Philippine
Government. What was transferred was only
proprietary rights. You have to know the difference
between sovereign rights over Sabbah and proprietary rights
over the same. Sovereign rights is when you make it part of
the national territory, as part of government whereas with
proprietary rights, you own it although it may not be under
your political control.
Lets have this because it adds to the confusion. There is no
question that Sabah is claimed by the Sultanate of Sulu. In
fact there are documents to show, like the British documents,
that this property has been acknowledged by the British
government as being owned by the Sultanate of Sulu. In fact
the East India Company, a corporation owned by the
British government, when it was established in Sabah,
acknowledged the ownership of the family of the Sultan
because they were paying rentals to them as lessee. And
there are documents to show that guys.
So theres no question on their proprietary rights. You know
what is proprietary rights being the owner of the property,
you have the right to possess and control it as owner. But it
does not mean that the government has political claims over
the same such as the right to govern the property because
its only being owned by private individuals. Lets say for
example, you own a piece of land in America and you
donated it to the government. It doesnt mean that the
government has control or supervision over that land. The
least it has is proprietary rights over the land.
Thats the confusion there. We tend to think that because
there is a claim by the Sultanate of Sulu over Sabbah, it now
belongs to the government. But the truth is, its only that
coincidental that the proprietary rights were transferred to
the government because when the Sultanate of Sulu
attempted to claim the property, the Malaysian Government
ignored them. And so they went to the International Court
of Justice. But the ICJ can only take cognizance of your
complaint if you are a state. Since they dont have
international personality, they were compelled to transfer
their rights to the Philippine Government in order for the
government to make a complaint on their behalf before the
ICJ so that Malaysia will acknowledge them.
You can also understand the position of the government
because it has proprietary rights over Sabbah although it has
no political rights over the same. Now that negotiations for
the Bangsamoro Basic Law (BBL) is ongoing, the
government does not want to offend Malaysia. So now, how
would you consider Sabbah? As it is what has been
established so far is proprietary rights. Who knows
eventually what you can do like what happened in Australia
(*story about British criminals who were sent to penal
colonies in Australia and established their own government.
It might be that this is what Malaysia fears considering that
there are many Filipinos in Malaysia, they might establish a
government there and affiliate themselves with the Philippine
Government.).
Example: If a person owns a parcel of land in USA and later
donates it to the Philippine Government, it does not mean
that the PH government has control, supervision, and
jurisdiction over that parcel of land. They only have
proprietary rights over the same. Do you understand guys?
Thats the confusion there, just because the sultan of sulu
owned the islands and donated it to the PH government, the
latter can already control and govern the islands. Thats
wrong. Only the proprietary rights were transferred to
government because nagkataon when the sultan of Sulu
attempted to claim the property, Malaysia ignored them. So
they went to the international tribunal (international court of
justice). But since the tribunal can only take cognizance over
a claim if you are a state, the sultan was compelled to
transfer his rights to the PH government in order for them to
file their complaint.
There was no settlement obtained with regard to the
property.
In the Magalona case, it was emphasized by the SC under
section 3 of RA 5446 keeps open the door drawing the
baselines of Sabbah. Section 2 the definition of the baseline
of the territory of the Philippine Archipelago as provided in
this act is without prejudice to the delineation of the baseline
around the territory of savva situated in north Borneo over
which the republic of the Philippines has acquired dominion
and sovereignty
Maam: dominion in so far as private ownership but not in so
far as Imperium not yet.
Lets go back to the regime of Islands. Asa man ang
Kalayaan group of islands? In the western part dba and the
bajo de masimloc is somewhere in Zambales.
If we include them as part of our territory, the shape would
be rectangular. This is complained of by the neighboring
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
countries especially Indonesia and Malaysia because we
would overlap their EEZ. It would violate the UNCLOS to
which we are signatories to. So we have been pressured to
redefine our territory. Then RA 9522 was passed. Ge redrew
nato atong archipelago and this time we excluded those
islands such as the Scarborough Shoal and the Kalayaan
group of Islands. So ang nahitabo na balik na sa Triangular
atong archipelago.
In so far as the Kalayaan Group of Islands, you already know
the basis. The Scarborough Shoal nalang. According to the
Chinese, they discovered it even before Christ pa lage daw.
But our position is this, even if you really did discover it first,
it would only give you (Chinese) an inchoate right over the
property which have not ripen into ownership unless you
occupy it. We, on the other hand, did occupy it during the
Japanese occupation. Kita naka una pag occupy sa property.
Now there saying it is within their 200-mile EEZ. Ang ilang
point of reference kay dash line (**di jud ma klaro**) which is
underwater when its high tide. Thats the reason for their
reclamation! Aron ma kit an bisan high tide. According to a
Supreme Court justices opinion, ang point of reference
should be a habitable territory.
Ang atong point of reference is that point (isla) nga livable
meaning mapoy an; self-sustaining xa.
China and the PH are both signatories to the UNCLOS
which states that in case of dispute regarding territory it
should be submitted to arbitration. China, in this case,
waived it right to submit to arbitration.
JUNE 13, 2015
NATIONAL TERRITORY
The Philippine Archipelago consist of the islands and
the waters embraced therein. Refer to Art. 46 of the
UNCLOS of the definition of Archipelago where it is defined
as the group of islands including parts of the islands
interconnecting the waters and other natural features which
are closely interrelated and such islands, waters and other
natural resources form an intensive geographical, economic,
political entity or to have historically regarded as an
archipelago. This includes the Muslim Mindanao or
otherwise known as the Bangsamoro. Therefore they cannot
consider that as separate and distinct from the Philippine
national territory. That is one of the legal bases in saying that
it cannot have an associated state or an independent
Bangsamoro state considering first and foremost the
definition of the national territory. Second of course there is
an issue of having a Unitary system of government wherein
there is only one state, the Philippine State, that is being
recognized as the only state of the Republic of the
Philippines.
Aside from the Philippine Archipelago, part of the national
territory are all territories to which the government has
sovereignty or jurisdiction. When we speak of sovereignty, it
could either be imperium or dominium or both. If it is
imperium, it includes jurisdiction over all persons and things
found in its territorial boundaries or within the boundaries of
other territories wherein the Philippines is claiming as part of
our territories. To what territories are we referring to? We
have those regime of islands, we have Sabah in particular,
we have Kalayaan group, Guam and Marianas islands. In so
far as the Kalayaan group of islands and Scarborough Shoal,
we have to consider Rep.Act. (RA) No. 9522 in determining
the basis for them being part of the Phil.national territory.
Magallona vs Executive Secretary
Issue: Constitutionality of RA No. 9522
Held: Kalayaan group and the Scarborough Shoal otherwise
known as the Panatag Shoal (West Philippine Sea or China
Sea) while considered as part of the national territory are
excluded as part of the Phil. Archipelago. In the
determination of maritime domain, they are no longer
included in the determination of the archipelagic waters.
Their maritime domain shall be determined within their
maritime zone following the provisions of the UNCLOS in the
determination of the jurisdiction over the seawaters along its
coastline. You have RA 3446 as amended by RA 9522 in so
far as the Kalayaan Group of Islands as part of the Spratley
Islands. In so far as Sabah, RA 5446(?), as amended by RA
9522 was the determination of our bases. In so far as to the
determination of the jurisdiction over the seawaters
connecting the islands, they are now excluded from the
archipelago, therefore the waters around them shall not
anymore be part of the archipelagic waters. So you have to
dileanate the figure or the configuration of the
Phil.archipelago. What used to be a rectangular form is now
a triangular form of an archipelago.
How do you go about in determining the internal waters or
territorial seas?
2 methods of determining jurisdiction
1. Normal Baseline
- determine those seawaters along the coastline of a territory
from the low watermark and you consider the draw(?) of
political miles. Beyond that you consider as international
waters.
2. Straight Baseline
- we follow the straight line method by determining the
outermost islands and connect them with a straight line
excluding the KGI and Scarborough Shoal. Waters within the
straight line are considered as internal waters and they are
treated like rivers, lakes and swamps inside the territory.
Waters outside the Phil.archipelago is what we called the
territorious seas or the maritime.
What we follow now is RA 9522 to be more consistent with
the stipulations on the determination of baselines under the
UNCLOS 3. How do you determine? It shall be 12 nautical
miles from the normal baseline of the outermost island (the
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
low water mark of the outermost islands in other words) of
the archipelago.
However, there are islands that are submerged under the
seawaters so that even the submerged part or portion of the
islands can go as far as beyond the territorial seas....
Question: How do you determine jurisdiction over the
sea waters? Where this portion of the submerge island had
escaped, how do you determine that? Is it still part of the
national territory?
Answer: No, its not part of the national territory but we
do have authority or jurisdiction in so far as implementing
certain laws like fiscal laws, custom laws, sanitation laws
and immigration laws up to an extension of 12 more nm from
end of the territorial sea or 24 nm from the normal baseline
of an outermost island.
Another point you should take note with regards to
Archipelagic waters separating the islands, meaning these
are internal waters inside the archipelago, while they are
considered as internal waters, they are still subject to the
innocent passage as well as archipelagic sea lanes. There
are no laws yet defining or governing what may consist of an
innocent passage inside the archipelagic waters neither on
the determination of archipelagic lanes although they are
required under UNCLOS 3, the laws are still pending in the
congress but this is required under UNCLOS. For normal
territories, meaning its not an archipelago, their territorial
seas jurisdiction is subject to the innocent passage as well
as transit lanes for vessels to pass through. There are 2
kinds of right of way of vessels to enter into the sea waters of
a particular country depending whether it is an archipelago
or a normal territory, a continent integrated territory.
The legal basis over our claim of the Kalayaan group of
islands started with discovery by a Filipino mariner by the
name of Tomas Cloma, however, it was a mere inchoate
right which later ripened to ownership when we had
occupied the territory. Read RA 3446 as regards to our legal
basis for our claim over the Kalayaan group of islands
As regards to Panatag Shoal or the Scarborough Shoal, we
have claimed it on the basis of discovery and then eventually
by occupation and recently by the fact that they are within
the 200 exclusive economic zone (EEZ), both the Kalayaan
group of islands and the Panatag Shoal.
When we speak of the 200 EEZ, it should be reckoned from
the low water mark of the outermost island. So it could be
beyond already of the territorial seas.
Question: Is it part of the national territory?
Answer: No, it is not part of the national territory but we
have exclusive sole right to explore, develop and utilize living
and non living resources that may be found within 200 EEZ.
Requirement to consider the 200 EEZ:
it must be reckoned from a territory that is habitable, capable
of habitation, habitation without any intervention.
Like you have to subsidize it bringing food in the territory for
people occupying the territory to survive.
So if you have to base it to the Panatag Shoal as basis, this
is in the west portion of our sea waters, definitely the territory
from which it is based in the 200 EEZ can be subject to
human habitation without any kind of intervention as
compared to the 9 line dash that was the basis of the 200
EEZ of China, that portion is under water thats why they
have to reclaim it in order for people to live in the area. So if
you are to follow the bases for 200 EEZ, they dont have any
factual or legal basis. They cannot say that there is any
overlapping of EEZ because their basis which is the island
that they are claiming as theirs is not livable by human
beings if you are to consider only the island without the
reclamation.
Aside from territory you have territorial seas which refer to
the maritime zone; this is the sea water outside of the
archipelagic waters outside of the straight baseline. The
seabed which is included* contiguous zone, meaning the
island under the sea water when it is high tide but however
limited only up to 24 nm from the low water mark but limited
only to implementing sanitary, fiscal, custom and
immigration laws, its no longer part of the territory. Then up
to 200 EEZ in so far as exploration, development and
utilization of the natural resources within. The continental
shelf as well included if it is within our territorial seas.
Take Note of the terms contiguous zone, continental
shelf, exclusive economic zone
Case: Magalona
SC sustained the constitutionality of RA 9522, that it is
not violative of the Treaty of Paris neither of the present
constitution.
JURISDICTION OVER SEA WATERS FOR PURPOSES
OF PIL:
- not within the jurisdiction of ICJ or International Court of
Justice but under ITLOS or the International Tribunal of the
Laws of the Sea, to which all signatories have signed that in
case of dispute, it will be exclusive for ITLOS to settle. which
means that there si no need for them to waive a right
because when they signed it they have impliedly consent to
submit to the jurisdiction of ITLOS.
Issue on Chinese government not submitting the issue to
arbitration considering that it is a sovereign state because in
the ICJ, it can only assume jurisdiction if the state submit to
the authority of the ICJ.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
why not ICJ? Because it is only applicable with respect to
lands or rights among sovereign states
STATE IMMUNITY
- consequence of being a sovereign state
- the theory is if you are a sovereign you cannot be
subject to any authority
- there can never be a legal right as against the
authority that makes the law on which that right to sue the
state depends
GR: state is non-suable
Question: How to know if you are suing the State?
Answer: Because you are naming the Republic as a
party-defendant like the unincorporated agency without
separate and distinct personality of the government-- that is
a suit against the state
If incorporated- it is independent from that of the Republic of
the Philippines and exercises propriety functions, thus
suable.
1. Political Subdivision (Province, City, Municipality)
- exercising both governmental and proprietary but
regardless of the function performed, under the Local
Government Code, it is suable because it has given its
consent to be sued pertaining to its right to property and
its right to defend it. but because it also performs
governmental function, once you can prove your claim,
can you ask for writ of execution against the LGU? NO.
Because it is public function, payment will be in
terms of public fund, thus the principle that there cannot
be a disbursement of public funds without an
appropriation law which means it needs another
consent from the public corporation in order to make it
liable.
But if it is purely a proprietary function and the
court decided against the LGU, such as water
distribution, which is purely propriety. now, you can ask
for a writ of execution to implement the judgment
because the funds are not part of public funds.
Liability depends on the funds against where you
are asking the judgment be enforced
2. Suit Against a Public Official
General Rule: not suable if performing governmental
function
Except:
- when he is acting as a special agent where the State has
waived its immunity from suit, whether performing
governmental function or function beyond its scope.
- sued in his personal capacity
- when he had authority but acted with gross negligence. bad
faith, or beyond the scope of his authority, or with grave
abuse of discretion amounting to lack or excess of
jurisdiction
Exception To The Exception:
- director of DPWH which expropriated a property without
appropriation of funds. SC allowed the property owner to
present his claim against the official who acted without
authority. so when it causes injustice to the owner, then he
shall be allowed to present his claim against the State.
COMMON DENOMINATOR IN DETERMINING WON IT IS
A SUIT AGAINST THE STATE:
- if it involves disbursement of public funds or loss of
government property in the event judgment is rendered by
the court against the State/LGU/official
Question: For example, you sue the Republic of the
Philippines in your application for registration of title, does
this mean the case is dismissible because the republic of the
Philippines not suable?
Answer: No, the republic being made as
party-defendant in a registration case is just a formality.
Because ultimately if it is established that the property is
alienable and disposable, there is no involvement of loss of
government property because it never belonged to the
republic of the Philippines. But if it is found later that the
property is inalienable then definitely the republic has the
right to oppose the registration by a private individual under
his name.
If you are to file a mandatory injunction or mandamus
case for example against an incorporated agency to perform
its function, this does not involve government funds or
property loss in which case the action will prosper, or when
you sue a government official in order for him to perform a
duty that is required of him by law, this does not involve
disbursement of public funds neither loss of government
property.
Question: For example, you ask for a duplicate copy of
your title that was lost, who are going to sue?
Answer: You are going to sue the registrar of deeds in
order to compel to issue a duplicate copy of your title based
on their file
Disbursement of public funds or loss of government
property.
Consider these circumstances. Thats the common
denominator of all those enumerated
GENERAL RULE: is you cannot sue the state
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
EXCEPTION: is when the state gives its consent either
expressly or impliedly
If EXPRESS it could only be by law:
1. General Law
Example: article 2180 of the civil code on torts. Liability of
the government maintaining infrastructure that cause injury
to the public or a particular pedestrian for example
Accounting/auditing code. That if the obligations arose from
a contract entered into by government. You may sue the
government only after complying with the procedure. You
are going to first file your claim to COA and COA will
determine whether or not it should be granted. If denied then
you can now sue COA and the government concern.
Where do you file the case? It would be a petition of
certiorari you go right immediately to Supreme Court within
60 days from the denial of your application. In that case, the
State has already given its consent after you follow the
procedure.
2. Special law
The Congress will pass a specific law granting an individual
to sue the state. Should there be any express giving of
consent, it is by law a statute. Not by contact neither by
verbal instruction of the president of the republic. It must
always be by statute.
IMPLIED GIVING OF CONSENT
When government commences or initiates filing of a
complaint for affirmative relief. If for the purpose of resisting
a claim, it is still immune from suit.
When government engages in pure business or when
government enters into pure commercial contract or when
government expropriates a property for the payment of just
compensation
PCGG v Republic
Since PCGG, an unincorporated agency initiated the
filing of the complaint for relief that is recovery of ill-gotten
wealth from the Benedicto then in which case it is for
affirmative relief. When the SC said these properties does
not belong to the Marcoses but to the Benedictos, the
Benedictos pursue their counterclaim against PCGG. Now
they ask for the dismissal of the case on the ground that it is
immune from suit. Is PCGG correct? The answer is no.
because in the first place, the one who initiated filing of the
complaint is PCGG.
Froilan case
In another case where the government intervene in
order to resist a claim against a property that was a subject
of a foreclosure after the debtor failed to pay. The debtor
claimed the property was his. When the debtor failed to pay,
naturally the bank foreclosed the security or collateral. The
government then intervened saying that you cannot
foreclose the property because that does not belong to the
debtor but to the government and later the supreme court
was saying that the property belong to the debtor and not to
the government and so the bank pursued its counterclaim
against the government that intervened that cause the delay
of the foreclosure. Will the action prosper? No What the
government was to resist a claim, and since the government
is immune from suit the counterclaim will not prosper
And then on the matter of entering into a purely
commercial contract.
You can directly file a complaint against the
government when the government acts like a private
individual. Just like any ordinary individual, in case of breach
of contract which is commercial in nature, the private
individual has recourse against the government because the
government is considered to have waived its immunity from
suit.
But when the government enters into a government
contract
that would be a different story. It pertains to
governance like for example, the PCOS procurement and
acquisition. If you are to ask for payment of lease or rentals,
on the assumption that it was not paid, what do you do? Can
you sue the COMELEC right away directly in the court for
collection of sum of money or specific performance of
obligation? Answer is no.
The requirement would be first for you to file your
claim with COA
Entering into government contract
- Pertaining to governance
- Case relating to PCOS: the acquisition and
procurement of the PCOS. If you are asking for
the payment of lease or rentals of the PCOS
used during the election, you do not file directly
to COMELEC for specific performance. You first
file a case before the COA, and wait for decision.
If you are aggrieved, you can always go to the
Supreme Court, then you can sue the
government.
But if its purely commercial contract, like if the government in
the case of PIA (Philippine Information Agency) entering into
a contract with a broadcasting station, like ABS-CBN for a
promotion of a rematch between Pacquiao and Mayweather,
for purposes of raising revenues for PIA but it did not push
through and PIA did not pay ABS-CBN for example when it
already made a promotion.
The recourse of ABS-CBN: can file directly to the courts
because it is a purely commercial contract, here PIA has
gone down to the level of a mere ordinary individual and
therefore becomes suable giving its consent.
Government Engages in Pure Business
- If business is incidental to the performance of
governmental function, the State is still immune
from suit.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
o Ex. Bureau of Customs enters into the
business of arrastre which caused injury
to a taxpayer, it is not suable because
the arrastre business is incidental to the
performance of governmental function
which is assessment and collection of
taxes.
o But if Bureau of Customs engages in
business of a canteen and someone
was poisoned, it engages a proprietary
function and becomes suable and gone
down to the level of a mere ordinary
individual.
Expropriation Case
- It presupposes the appropriation of public funds
- so that if there is no payment of the just
compensation, the government becomes suable
for the payment of just compensation and the
government need not do any affirmative or
positive act of appropriating funds because it
presupposes that there should be an
appropriation already, otherwise the taking
would be unconstitutional. The Constitutions
says that no person shall be deprived of his
property without due process of law or without
payment of just compensation.
- So it is already presumed that the government
when it exercises its eminent domain power
there is already an appropriation of public funds
so the State is suable.
- Even if there is no appropriation of public funds,
the Supreme Court in a decided case: the
expropriation power should not be a tool to
cause an injustice to a property holder so you
can still sue the State for the payment of just
compensation, this is an exemption.
Difference between Suability and Liability
- On Liability, can you ask for writ of execution to
enforce a judgment against the State?
- No, it is not automatic that once you prove your
claim against the government you can hold the
State liable. The judgment is only until its
rendition, not to its execution. Ordinarily in a civil
case, you the prevailing party can have the
judgment satisfied after it becomes final and
executory by asking for a writ of execution, such
as garnishment of funds of the losing party,
otherwise you attach his properties so that they
will be sold at a public auction and the proceeds
of which be applied to the judgment.
- Instead of writ of execution, you ask for
appropriation of funds.
- If it is against the National Government,
o either you file a case against that agency
or COA, and if it will be given due
course, it will be submitted to the Office
of the President. So that when the
President prepares the budget, it will be
included as part of the budget of the
department or agency of the
government then submit it to the
Congress for the appropriation of public
funds.
- If it is against a LGU,
o then you ask the LGU Sanggunian to
pass a supplemental budget for the
appropriation of funds. If the LGU
refuses, then you can sue the LGU for
mandamus to pass the supplemental
budget for the payment of obligation
- UP vs Dizon, Aug 23, 2012,
o Supreme Court held that the funds of UP
are government funds which are public
in character, considering that UP is a
educational institution, a corporation
and that under its charter it can sue and
be sued, but garnishment is a different
matter. Its income accruing from the use
of real property can only be spent for
the attainment of its institutional
objectives. Thus the funds of UP cannot
validly be made subject to garnishment
or writ of execution; the adverse
judgment against UP is not immediately
enforceable because suability of the
State does not necessarily mean its
liability.
Question: Are the funds of UP subject to garnishment?
Answer: UP vs Dizon, a case dated August 23, 2012.
Supreme Court said in relation to liability "The funds of
UP are government funds that are public in character."
Because you might think that it is an educational institution
therefore a corporation and under its charter it is suable. It
can sue and be sued.
But, whether or not if you obtain a favorable judgment or
garnish the funds of UP that would be a different story.
Because the SC said that the funds of UP are government
funds that are public in character. They include even the
income accruing from the use of real property ceded to the
UP that may be spent only for the attainment of its
institutional objectives. UP has a lot of properties that have
been leased. The rentals from those properties that were
leased to private individuals are still considered as
government funds, and therefore, the funds subject of the
action would not be validly made a subject of a writ of
execution or garnishment. The adverse judgment rendered
against UP in a suit which it had impliedly consented was not
immediately enforceable by execution against UP because
suability of the State did not necessarily mean it's liability.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
GENERAL PRINCIPLES AND STATE POLICIES
Article 2 - The Declaration of Principles State Policies
It might looks harmless guys but take note that most of the
principles that came out in the bar exam were taken from
Article 2.
Suffice to say that the Declaration of Principles and State
Policies are not self-executing. Because they are mere
guidelines, mere theories or postulates under which the
government is operating.
For example, in the making of laws. Congress may refer to
the General Principles. But if they are not followed, you
cannot use the principles as basis in a judicial action to
challenge the constitutionality of the laws passed by
Congress. Your remedy is election. Do not vote anymore for
those members of the Congress who do not follow a simple
principle in the 1987 Constitution.
Section 1 of Article 2.
"The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government
authority emanates from them."
Take Note of the MANIFESTATIONS OF
REPUBLICANISM. What are these?
1. Separation of Powers
2. Non-delegation of Legislative Powers
3. Non-suability of the State
4. The Rule of Majority
5. Prohibition on the passage of irrepealable laws
6. Checks and balances
7. Judicial Review
These are manifestations of Republicanism. Let's take them
one by one.
Separation of Powers
In relation to checks and balances. There are three
branches of government.
Is it absolute separation of powers?
There is more to Blending than absolute separation of
powers. There's more to coordination rather than complete
independence from each other. They have to coordinate in
order to maintain the balance and protect the people from
any arbitrary control. Under the principle of Separation of
Powers for example, courts cannot interfere with exercise of
the legislature of its authority to conduct investigation in aid
of legislation. This is always the bone of contention between
the Congress and the Courts.
This is a basic principle. You have the Executive that is to
implement the law. The legislative that is to make the law.
And the Judiciary to interpret the law. For as long as the
power assigned to each branch by the Constitution
expressly, or by incident (impliedly), or as an incidental
power, such power cannot be interfered with by the other
two branches unless the Constitution no less allow the
checking of the powers. Because if this power is interfered
with, then that would be a violation of the separation of
powers.
TAKE NOTE, because what will add to the confusion, even if
you have mastered all the powers that are granted to each
branch, you cannot memorize the circumstances of the
limitations of the exercise of the powers, specially on the
checking and the balancing of the powers.
1. So then, there are certain powers were the Constitution
allow the other branches to check. That's one.
2.Second, there are certain powers that are shared among
the branches of the government. Meaning it's not only
exercised by one branch, it may also be exercised by the
other branches of the government.
Example: The recent declaration of unconstitutionality of the
DAP.
Question: What was the conflict there in the DAP?
Answer: That was insofar as appropriation of
public funds. Under the Constitution, the president is
given the discretion to prepare the budget. And then the
president submits that to Congress,
Question: The preparation of the budget, can that
be interfered by the Congress or the Supreme Court?
Answer: Generally it should not be interfered with
because that is a discretionary power of the president.
But, the Constitution no less, allows the checking.
Question: How is the checking?
Answer: The budget submitted to Congress
cannot be increased by Congress. This is one way of
checking Congress, not abusing or interfering into the
prerogative of the president to prepare the budget.
The budget submitted to Congress, take note, cannot be
increased by Congress. This is one way of checking of
Congress not abusing or interfering into the prerogative of
the President to prepare the budget. They may decrease
but not increase. After the budget, what will happen next is
the appropriation of public funds. Who will appropriate? It is
discretionary of Congress and that is exclusive on their part.
After the appropriation, it is for the president to spend the
money in accordance with the appropriation and that is
exclusive to the President. In other words, Congress cannot
dictate upon the president where to spend the money or not
to spend the money. In fact, the president can impound the
budget for a particular department, because the matter of
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
spending the money is discretionary upon the president. To
spend it or not is dependent on his discretion. Remember
the principle of impoundment of the appropriated funds.
But the president cannot spend public funds without the
supporting appropriation, otherwise the president interferes
with the appropriation power of Congress. In effect, the
president usurps the power of Congress. That is what
happened to DAP. What the president did was to impound
the funds of certain departments and considered them
savings even before the end of the fiscal year.
Thereafter, he disbursed the funds for purposes that were
not mentioned in the General Appropriation. In other words,
it was not included even in the budget thereby, Supreme
Court was saying that there is a violation of separation of
powers, not to mention the fact that he violated the
Constitution because the funds that were appropriated
exclusively for the executive department, he transferred it
to the legislative department and even to the Commission on
Audit which is outside of its authority because if there should
be transfer of funds, suffice the budget is concerned, it
should be within. And if there should be a transfer of funds
from one item to another, it should be with authority of the
president or the head of congress if it were the budget of
Congress or the Chief Justice, if it were the budget of the
judiciary.
So when you are confronted with a case like this in the bar
exams, you consider, is this a power that the constitution
wanted checked by the other two branches?
Because if that is the case, there cannot be an interference.
So what happened next is that the President is saying that it
is unconstitutional, that the Supreme Court is now interfering
with the authority of the president to disburse public funds
and under the principle of separation of powers, that should
not have been done by the supreme court in the guise of
judicial review. His term even was over-reaching powers of
the supreme court by way of judicial review.
Take note however that no less than the constitution
provides for judicial review.
Somebody challenged the constitutionality of the act of the
president in relation to DAP, it was not the Supreme court on
its own who questioned the same because if the Supreme
court did that then definitely there will be a violation of the
separation of powers because supposedly this are
prerogatives of two independent branches that is Congress
and the President. The latter is only saying that the congress
did not even complain if it were the function of Congress that
was allegedly usurped.
Question: Why is the supreme court interfering?
Answer: Because that is the function of the Supreme
Court, to review the acts of the two other branches of
government, whether or not they are consistent with the
constitution, otherwise it has the obligation to declare that it
is contrary if it has violated the constitution.
As part of the separation of powers, the thing you should
always take note as to what extent of the judicial review by
the judiciary of the acts of co-equal branches.
You go back to the REQUISITES OF JUDICIAL REVIEW
1. There must be an actual case or controversy;
2. The question must be raised by the proper party;
3. It must be raised at the earliest possible opportunity;
4. The issue is the lis mota of the case.
And this does not only involve the determination of whether
the act was contrary to the constitution, because even if the
act is allowed by the constitution, however it was acted with
grave abuse of discretion amounting to lack or excess of
jurisdiction, still that is subject to judicial review. That is
provided under the 1973 constitution which we adopted
under the 1987 constitution. Meaning, questions even that
are political in nature can be reviewed by the Supreme court
if only to determine whether there has been grave abuse of
discretion amounting to lack or excess of jurisdiction.
Read the case of Marcos vs. Manglapus in relation to the
separation of powers.
NON-DELEGATION OF POWERS
As a general rule, the powers should not be delegated
because what has been delegated cannot in turn be
delegated.
Who in the first place originally delegated the powers to
Congress?
It is the people by electing them to exercise legislative power.
That cannot in turn be delegated to another delegate. That is
the principle.
Although you have to master the exceptions which we call
as PERMISSIBLE DELEGATION OF LEGISLATIVE
POWERS to
the President (Art. VI, Secs. 23 and 28);
the administrative bodies;
local government units; and
the people.
1. So you have mentioned under the President, Section 23
and 28 of Article 6.
2. To the administrative bodies, since time immemorial, they
had been promulgating rules and regulations to implement
the law as long as the law delegating the power to
administrative bodies is complete in itself and there is
sufficient standard provide for the guidelines under which the
law can be enforced.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
3. And then the delegation to the lgu, the only limitation
there is that they cannot in the guise of promoting the
general welfare under the general welfare clause allow an
activity that is prohibited under existing laws. They may only
regulate.
Take note of the 2 terms: regulation and prohibition. What
cannot be done by lgus as against national laws is prohibit
but they may be allowed to regulate the activity that is
allowed under existing laws.
4. With regards to the exercise of the power by the people.
There are 2 ways: initiative and referendum.
Initiative when people are the authors of law, either statute
or local legislation. How many votes do you need?
If it is a PROPOSAL TO AMEND THE CONSTITUTION
12%
If it is a proposal TO PASS A STATUTE 12% of the total
registered voters nationwide with each legislative district,
represented by at least 3% of its registered voters.
Then you have autonomous region, regional assembly, s.
panlalawigan, s. panglungsod, s. bayan, s. barangay
where in those proposed may be adopted or rejected by
them in a referendum. There is local legislation also of
initiative:
Autonomous region 2000
Province 1000
Huc 500
City 100
Municipality 100
Barangay 50
For those, go over RA 9765.
What we emphasized in so far as lgu, it does not include
MMDA. MMDA is not a political subdivision but an
administrative body in the delivery of basic services
including traffic management, solid waste management. So
mmda may only exercise the power to implement rules
provided there are rules allowing them to promulgate rules
on traffic management, solid waste management, otherwise,
authority from the law or from the lgus comprising the mmda,
mmda cannot make its own laws because it is not a political
subdivision.
Another point also with regards to lgu, the emphasize on
local autonomy. What they enjoy is local autonomy. And
when we speak of local autonomy, it is not a transfer of
power from national to local because the system is unitary. It
is merely a transfer of administration.
Thus, in the case involving the conditional cash transfer,
pantawid sa pamilya or whatever it is, there was a question
on the constitutionality of that law because Pimentel who is
the father of the local autonomy he was the sponsor of lgu,
question the constitutionality of the cash transfer because
the one implementing it is the DSWD.
What pimental wants is for lgu to ensure their local
autonomy to implement because they are in a better position
to know who are their constituents and the economic status
of these constituents. So they are saying that by delegating
the exercise of the power to dswd to implement in effect
violates local autonomy. So sc said that (this came out
twice in the bar exam) the law is not unconstitutional
because while it is true that there is local autonomy, the
national government is never barred from passing a law
which would benefit directly the constituents. And since it is
their program, it is proper for national agency to implement it.
So there is no interference nor violation of the local
autonomy. While it is encouraged, it is now a prerogative of
natl govt to implement its own program even if the
beneficiaries are those constituents of the lgu.
Let us go now to Section 2 of article 2 Philippine
renounces war as an instrument of national policy, accepts
the principles of international law as part of the law of the
land and adheres to the policy of equality, justice, peace,
freedom with all nations.
Let us take up firs the renunciation of war what it
renounces is aggressive and not defensive war. In relation to
that, who DECLARES WAR? It is the President being the
commander in chief of afp. Who however declares the
EXISTENCE OF THE STATE OF WAR?
Question: Who declares the existence of a state of
war?
Answer: It is congress. You need 2/3 votes of the
members of all. Joint session voting separately.
Question: Can the president declare war without the
determination of the existence of state of war?
Answer: Yes, it would be ridiculous to wait for
Congress.
NOTE: Only difference is if there is no declaration of
existence of state of war, president cannot exercise
emergency power in the prosecution of the war meaning he
cannot disburse public funds for that purpose. Otherwise
there is no bar for the president to exercise the power.
The most important of Sec. 2 is the second statement which
states that we adopt the generally accepted principles of
internatiol law as part of the law of the land otherwise known
as the Incorporation Clause.
Two ways of adopting generally accepted principles of
international law as part of the law of our land
1. Incorporation
- Court applies the generally accepted principles of
international law automatically for as long as
these are generally accepted.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
2. Transformation
- International law still has to be transformed into a
statute so you pass a law expressly adopting
international law as if it is an ordinary statute
unlike in incorporation which does not need a
law, it is automatic.
What we follow is the Incorporation clause.
Question: What is then the sources of these
international law as part of the legal system?
Answer: Treaties duly ratified.
Question: When does a treaty bind the republic? Who
ratifies the treaties?
Answer: Ratification is the sole prerogative of the
president (Jesus v Ermita).
Question: Who concurs?
Answer: The Senate by 2/3 votes. Even if the Senate
concurs but the president does not ratify it, it does not bind
the republic.
In the Statute of Rome you recall that the creation of
the International Criminal Court of Justice that treaty or
convention, covenant to creat the ICJ was signed by Estrada
during the negotiation.
What happened next? Arroyo when she became the
president did not submit that statute to the Senate for
concurrence, so what did Pimentel do? He went to the SC
and asked to issue a mandamus to order Arroyo to submit
the statute of Rome to the Senate for review and
concurrence. What happened? SC dismissed the case on
the ground that under the principle of separation of powers,
the SC cannot compel the president to ratify a treaty or
submit a treaty for concurrence and review of the
Senate as it is a sole prerogative of the president.
The SC declared that even if the Senate concurred
assuming that it was submitted to the Senate, if the
president does not ratify the treaty, it does not bind the
republic.
So the process is:
1. there has to be negotiation,
2. the president thereafter submits to the senate,
3. senate reviews then if they agree and concur,
4. they return it to the DFA for the president to ratify.
i. So if the president does not ratify the treaty
then as a rule it does not bind or
ii. even if the president has ratified it but it was
concurred by 2/3 votes of the members of the
senate, it does not bind the republic as well.
So assuming that it was signed by Arroyo but not concurred
by 2/3, are we subject to the jurisdiction of ICJ? As far as our
Constitution is concerned and our SC, it does not bind the
republic without the concurrence of the 2/3 votes of Senate.
But as far as international law is concerned, we are bound by
it according to the principle of Pacta Sum Servanda.
You are expected to comply when you enter into such kind of
that treaty in good faith, you are assumed to sign it in good
faith therefore you must commit yourself to what you have
signed and the president being the representative of the
sovereign state is presumed to have entered into the treaty
in good faith therefore the republic is bound by it.
Locally, because the constitution says that not only that it
has the ratification of the president, it must be concurred by
2/3 vote of Senate and therefore under the incorporation
clause, to bind us and to adopt the international law as part
of our legal system, it must be a ratified treaty. Otherwise
you follow the generally accepted principle of international
law which is Pacta Sunt Servanda.It must be a ratified treaty.
Otherwise, you follow the general principle of international
law such as pacta sunt servanda which is a generally
accepted principle of international law. So you apply pacta
sunt servanda as if its a local statute. In which case, you
apply the statute of Rome as if it is duly ratified by the
President.
Second source: of international law that is automatically
incorporated as part of the legal system
These are norms of general or customary laws. The principle
of extraterritoriality which means non-suability of diplomatic
representative or heads of state, principle of pacta sunt
servanda. We recognize them as automatically part of our
legal system
Question: How do you consider therefore an act as
customary law?
Answer: Mijares et al vs. Javier April 12, 2005.
Recognition of foreign judgment. A judgment was rendered
by the courts of Hawaii. There was an award of money but it
was a hollow victory if it cannot be enforced. The money of
the Marcoses are in the Philippines so they need a writ of
execution to implement the judgment of the court. Should it
be recognized by the Philippines courts so that the writ of
execution would be issued to enforce that judgment? There
is no treaty between us and the US in so far as recognizing
each others judgments of our courts. We dont have any
agreement but it is customary in international law to
recognize foreign judgments. So in this case, SC said there
is no obligatory rule derived from treaties or conventions that
requires the Philippines to recognize foreign judgments or
allow a procedure for the enforcement thereof. However,
generally accepted principles of international law by virtue of
incorporation clause of the constitution, form part of the laws
of the land even if they do not derive from treaty obligations.
The classical formulation in international law sees those
customary rules accepted as binding resulting from the
combination of two elements:
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Two requirements must be established to consider a
practice as customary law which is part of the generally
accepted principles of international law. Therefore,
automatically incorporated as part of the legal system:
1. There has to be an established, widespread, and
consistent practice on the part of the states
2. There has to be a psychological element known as
opinion as to the law or necessity. In the latter
element is belief that practice and question is render
obligatory by the existence of the rule of law
requiring it. So they are bound to follow. Because
somehow there is a non-written rule that they must
comply with that practice. Otherwise,if you are
based on the same situation, you might not be
accorded the same privilege.
A good example of that is the case of Pharmaceutical and
Health care association of the Phils vs. Duke
This has something to do with milk products wherein you
have to place there breast milk is still the best milk in the
world or in the universe. The companies producing these
powdered and liquid milk are rather confused because they
are trying to promote their products. Actually, there was a
pending bill at that time in the Congress, but in the meantime
while it was still pending, Duke who was the Secretary of
Healthy, already then passed the mandate that all these
products must put on the cartons or bottles that statement
that breast milk is still the best milk. What was his basis for
that? There is an international law relating to that in the UN. I
think it was WHO. It has become a customary international
law. SC said in this case that customary international law is
deemed incorporated in our domestic system. A mere
constitution or declaration, an International law is deemed to
have the force of domestic law. So even if that bill was still
pending, there was an international law which was
customary which was used as basis.
What else can be the source of generally accepted principles
of international law?
Treaties which have become part of customary laws.
In other words, we may not be a signatory to a treaty or a
covenant. However, the treaty itself or the covenant has
become a customary law and as such, it is automatically
adopted as part of our legal system.
Do you remember that Kelogg-Briand Pact Allowing or
authorizing to establish a military commission in order to
prosecute the criminals of war at that time. The Philippines
was never a signatory to that pact. But that treaty became a
customary law
So that even you are not a signatory to it, that law becomes
a part of the legal system that justified the creation of the
military commission here in the Philippines to prosecute the
Japanese soldiers that were involved in the atrocities in our
country.
In the case of Jalandoni case vs. a Japanese soldier.
He questioned the jurisdiction of the Military Commission
saying that you are not a signatory to the Kelogg-Briand Pact.
SC said otherwise. The Kelogg-Briand Pact became a
Customary International Law and under the Doctrine of
Incorporation, it is treated AUTOMATICALLY as a Domestic
Law and can be automatically applied in the PH as if it is a
statute.
Read the Case of Kuroda vs. Jalandoni or Mijo vs.
Director of Prisons.
Those are the 3 sources of international law that may
automatically be considered as part of the legal system.
Again:
1. Treaties that are to be ratified
2. Norms of General/Customary International Laws
3. Treaties that have become Customary International
Law
Next Problem: When there is a conflict between the
treaty/international law vs. Statute.
1. If it's a treaty vs. Constitution, Constitution will always
prevail because of the supremacy of the Constitution.
2. If statute vs. treaty,
a) generally OUR COURTS will always uphold the
statute. In the first place, the courts are created by
statutes!
b) But if the conflict is to be decided BY A COURT
OTHER THAN OURS, you consider WHICH one
was FIRST PASSED or ENTERED INTO.
ex. PH vs. China on the dispute of the sea. Which will prevail,
UNCLOS or RA 9522/Our Constitution. If it's decided by our
courts, our Constitution or RA 9522 will always prevail. But if
it's decided by China, Taiwan, or ITLOS, then you consider
WHICH one was FIRST PASSED or ENTERED INTO.
Why do we do this? Because a statute and an international
law has the same status and using statutory construction, a
latter law will usually prevail over a former law. The treaty is
considered as an amendment to the statute or repealed the
latter statute.
Case: Ichong vs. Hernandez-
In this case, we entered into a treaty with China. It was
agreed that whatever rights afforded to Filipino Citizens will
also be granted to the Chinese. If a Filipino can engage in a
business, the Chinese can also do so. Subsequently, the
Retail Trade Act was passed, prohibiting the foreigners,
especially the Chinese to engage in RETAIL TRADE. This
was questioned by Ichong because that will violate the treaty.
How was it resolved?
1. It was decided by our courts so naturally it upheld the
Retail Trade Act.
2. However, more importantly, SC said that it was passed
subsequently to a treaty and therefore, it was an amendment
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to the former treaty. (remember for PIL)
Secretary of Justice vs. Lantion favorite in the Bar Exam.
"The doctrine of incorporation, as applied in most countries,
decrees that rules of international law are given equal
standing with, but are not superior to, national legislative
enactments. Accordingly, the principle lex posterior
derogat priori takes effect a treaty may repeal a statute
and a statute may repeal a treaty. In states where the
constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may
be invalidated if they are in conflict with the constitution"
SUPREMACY OF THE CIVILIAN AUTHORITY OVER THE
MILITARY AT ALL TIMES
What is this? What are its manifestations?
1. President as the Commander-in-Chief
2. The congress appropriating funds for the military
3. The military are subject to court marshalls, whose
decisions are subject to the review of the President,
being the Commander-in-Chief.
BAR- Who are required to swear, uphold and defend
the constitution which is the fundamental law of the civil
government?
Answer: Members of the Armed Forces of the
Philippines. Sec 5 Paragraph 1 Article 16 of the Philippine
Constitution.
Compulsory Military and Civil Service - for the protection of
the people and the state. It is the primed of duty of the
government to serve and protect the people. The
government may call upon the people to defend the state
and in the fulfillment thereof, all citizens may be required,
under conditions provided by law to render personal, military
and civil service. In other words, our members of the AFP
consist of the citizens of the Philippines.
Take note of the following cases:
1. IBP vs. Zamora the calling of the marines to
constitute permissible use of military assets for
civilian enforcement. Theres no violation in there of
supremacy of civilian authority.
2. Gudani vs. Senga August 15, 2006 with
respect to the requirement where the
commander-in-chief of the Armed Forces of the
Philippines prohibits the members of the military to
appear in a legislative inquiry has nothing to do with
the executive privilege but something to do with the
supremacy of the civilian authority. First follow the
order of the Commander-in-chief who is the highest
civilian authority.
3. Gonzalez, et. al vs. Abaya with regards to the
review of the decisions of the Court Martial. Court
martials are instrumentalities of the executive to
enable the president as the commander in chief to
effectively command, control and discipline of the
Armed Forces of the Philippines.
ON THE MAINTENANCE OF PEACE AND ORDER
Who stands to maintain the peace and order? The PNP.
Take note:
1. Chavez vs. Romulo on the maintenance of peace
and order bearing of firearms. Is it a constitutional
right? Is it a property right? NO! Neither a property
nor a constitutional right subject to the protection of
due process of law. It is one privilege granted by the
state and which can be revoked by the state anytime.
In the case of Chavez, in the protection of the
people against violence are constitutional duty of the
state and to bear firearms is to be construed in
connection and in harmony with these constitutional
duties.
2. Gamboa vs. Chan, et.al - maintenance of private
armies is prohibited. The constitution explicitly
mandates the dismantling of private armies and
other armed groups not recognized by the duly
constituted authority. It also provides for the
establishment of a police force that is national in
scope, civilian in character, and is controlled and
administered by the national police commission.
SEPARATION OF THE CHURCH AND THE STATE
Take note of the exceptions of the separation of the church
and the state.
How is this reinforced?
1. The freedom of religion clause as long as there
is no clear and present danger of any substantive
evil that will happen if allowed to freely enjoy the
freedom of religion then by all means you are
allowed to freely exercise what you believe in. What
we consider now is benevolent neutrality
accommodation, thats the principle. Benevolent
neutrality accommodation, for as long as there is no
compelling state interest involved. The bottomline is
that there is no clear and present danger of any
substantive evil to occur if allowed to freely exercise
ones freedom of religion.
2. None establishment of Religion clause the state
has no religion and therefore the state must remain
neutral. Must not be hostile to religion and neither
the state must advance any religion. We have no
religious test clause. Religion is not a qualification in
order for one to exercise ones civil or political right.
There is also the prohibition against sectoral
representative from a religious sector, cannot be
accredited in the party-list system. There is the
prohibition against appropriation for sectarian
benefits to support the church, or its minister or
priest. That is prohibited. None registration of
religious denomination and sect as political parties.
Exceptions to the separation of powers
You have to take note in the bar.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
1. Exemption from property tax - as far as churches,
parsonages actually, directly and exclusively used
for religious, charitable and educational purposes
will be exempt from property taxation.
2. Prohibition against appropriation for sectarian
purposes EXCEPT when the priest is assigned to
the Armed Forces or to the penal institution or to
government orphanage or leprosarium. (memorized
them)
3. Optional Religious instruction for public
elementary and high school students as long as
there is a written consent from the parents or
guardian, it is done within schools hours and without
any additional cost to the government and the
teacher has to be accredited by the religious group.
4. Filipino ownership requirement for education
institution EXCEPT those established by religious
groups and mission boards. Remember, who can
own an educational institution? Only a Filipino
Citizen or a qualified Filipino Corporation unless it is
established by a religious group or a mission board.
Finally, Filipino ownership requirement for educational
institutions except those religious groups and mission
groups.
Q: Who can own an educational institution?
A: Only a Filipino citizen or a qualified Filipino corporation
unless it is established by a religious group or mission board.
Now, other cases that you have to take note of is the case of
Estrada vs. Escritor (A.M. No. P-02-1651
June 22, 2006)
This is on religion as basis for morality. Under the
indubitable benevolent neutrality accommodation, whether
mandatory or permissive, is the spirit, intent and framework
underlying the Philippine Constitution. Benevolent neutrality
should allow for accommodation of morality based on
religion provided it does not offend compelling state interest.
Take note also of the case of Islamic Dawah Council vs.
Office of the Executive Secretary (G.R. No. 153888 July 9,
2003) regarding on the halal.
The classification of halal cannot be done by government
because that is based on the Koran, which is exclusive to the
religion of the Muslims. The State should not interfere then.
INDEPENDENT FOREIGN POLICY AND FREEDOM
FROM EXTERNAL CONTROL
Article II Section 7. The State shall pursue an
independent foreign policy. In its relations with other
states, the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and
the right to self-determination.
This one is important because of the Enhanced Defense
Cooperation Agreement (EDCA). The rule is that there is a
marked antipathy in the Constitution towards foreign military
presence in the country or foreign influence in general.
This is the case of Lim vs. Executive Secretary, April 11,
2002.
This was still VFA. The VFA was concurred by the Senate.
Now they demand that the EDCA, which is a supplement if
not an amendment to the VFA, must also be submitted to the
Senate according to Senator Santiago for concurrence
because of this general principle that the Constitution
prohibits the presence of foreign personnel or troops in the
country. Thats why their exercise is in the Philippines not
to engage in any kind of war exercises like their
non-involvement with our disputes over the South China
seas. This is important if youre asked for a constitutional
basis.
Q: Are we against nuclear weapons?
A: As a rule, we adopt a policy of freedom from nuclear
weapons in our territory. They are all using nuclear weapons
already but we are still using canon balls. Thats crazy. Take
note of the statement consistent with national interest. So
later if national interest requires that we have to adopt
nuclear weapons, why not? We are not, however, prohibiting
the use of nuclear power plants. But the one in Bataan was
never operational from the start. We have been paying for
that until now. Do you know that weve borrowed money for
that during the Marcos regime and until now, you are paying
for it. And its not operational in fact. But is it prohibited if
eventually it will be operated and well use the power? Of
course not. By the way, this is just a general principle so its
not self-executing unless there is a law passed to execute
the same.
RESPECT FOR HUMAN RIGHTS AND DIGNITY FOR THE
HUMAN PERSON
Article II Section 11. The State values the dignity of
every human person and guarantees full respect for
human rights.
*Well discuss more on this when we reach the topic
on the Commission on Human Rights.
RIGHT TO A HEALTHFUL AND BALANCED ECOLOGY
Article II Section 16. The State shall protect and advance
the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of
nature.
This is a public right and take note, this is self-executing.
The Supreme Court said in the case of Province of Rizal
vs. Executive Secretary and also in the case of Oposa vs.
Factoran
that just because this right is stated under Article II, does not
make it less important than the Bill of Rights. And the SC
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
was even saying that it is self-executing thus it does not
enabling law in order to enforce it.
We expounded on this matter in the landmark case of
Oposa v. Factoran where we held that the right to a
balanced and healthful ecology is a fundamental legal right
that carries with it the correlative duty to refrain from
impairing the environment. This right implies, among other
things, the judicious management and conservation of the
countrys resources, which duty is reposed in the DENR.
(Province of Rizal vs. Executive Secretary G.R. No.
129546 December 13, 2005).
Generally, the provisions of Article II of the 1987 Constitution
do not confer rights. They are merely declarations of
principles and policies. However, the right to a healthful and
balanced ecology enunciated under Article II Section 16
gives the right to a cause of action that may be enforced by
any citizen. (Oposa vs. Factoran G.R. No. 101083 July 30,
1993)
No need of an enabling law. It is self-executing, in other
words.
LOCAL AUTONOMY
Article II Section 25. The State shall ensure the
autonomy of local governments.
Take note of the Bangsamoro Basic Law. Put many stars on
local autonomy.
Remember the case of Basco vs. PAGCOR (G.R. No.
91649 May 14, 1991)
Supreme Court said
The power of local government to "impose taxes and fees" is
always subject to "limitations" which Congress may provide
by law xxx Besides, the principle of local autonomy under
the 1987 Constitution simply means "decentralization." It
does not make local governments sovereign within the state
or an "imperium in imperio." xxx What is settled is that the
matter of regulating, taxing or otherwise dealing with
gambling is a State concern and hence, it is the sole
prerogative of the State to retain it or delegate it to local
governments.
Another case: The Province of North Cotabato vs. GRP
Peace Panel (G.R. No. 183591, October 14, 2008)
The Constitution does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it
provide for a transitory status that aims to prepare any part
of Philippine territory for independence.
EQUAL ACCESS TO OPPORTUNITY FOR PUBLIC
SERVICE.
Who knows the political dynasty law might be passed by the
time you take the Bar Exam
.
Take note of the case of TAMADO vs COMELEC,
where SC held that the provision does not bestow a right to
seek the presidency. It does not contain a judiciable
enforceable right but rather a mere guideline for legislative
action. It is not intended to compel the state to make positive
measures that would accommodate many into public office.
Maam: when running for the presidency, it does not mean
everyone is qualified just because there is this provision of
equal access to public service. Precisely without the
qualifications it would only add to the confusion because so
many people would run after the position. Do you
understand?
And then theres HONESTY AND INTEGRITY IN PUBLIC
SERVICE.
Take note of the statement of assets and liabilities because
this was the cause of removal of the Chief Justice of the
Supreme Court. He failed to publicly disclose his SALN.
JUNE 19, 2015
LEGISLATIVE DEPARTMENT
Legislative Power -
may be exercised by the Congress or by the people
Original Legislative Power -
power of congress to pass, enact, modify, repeal laws
Constituent Power -
power to propose amendments or revisions to the
constitution
Derivative Power -
power that is exercise by reason of the delegation of
power to them by the people
Question: Where the power is vested?
Answer: Congress, which is bicameral and to the
extent reserved to the people through the process of
initiative and referendum.
BAR: What is the difference between bicameral and
unicameral and the advantages and disadvantages of each
(Note: this had been asked in the bar. This is not
discussed though).
A bicameral system requires both chambers to cast a
majority vote to pass a law, while a unicameral system
decides, as one body, whether to approve or reject a
proposed bill.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
COMPOSITION OF CONGRESS
1. Senate
In so far as the Senate, it is composed of 24 senators
chosen at large. Number is limited to 24 senators. It cannot
be increased by ordinary legislation. It would require
amendment to the constitution to increase or decrease the
membership in the senate. What may be changed by law is
only the matter of electing the members of the senate.
2. Representative
In so far as the representative is concern, we have initially
250 and now we have even more than 250 because of the
creation of legislative district(s) coming from the different
province or cities.
Take Note: The membership in the house of representatives
may be changed by ordinary legislation. Because the
apportionment of legislative districts is a function of congress.
Always remember that in so far as the apportionment of
legislative district, it is a legislative function.
2 KINDS OF MEMBERSHIP IN THE HOR
1. Legislative Districts
They may consist of cities or provinces. In order to
considered as legislative district always remember, in so far
as the province is concern, regardless of population, it is
entitled of 1 legislative representative. In so far as the cities
are concern, it should have a population of at least 250,000.
Case in point: Aquino vs COMELEC dated April 7, 2010.
Issue: Constitutionality of RA 91276 on the creation of
district by dividing the district of the province of Camarines
Sur dividing into 2 districts, 1st and 2nd districts. What they
are saying is that there is a need to have a population of no
less than 250,000. WON the population of 250,000 is an
indispensable constitutional requirement for the creation of a
new legislative district in a province.
Held:
No. Sec. 5 par. 3 of Article 6 of the Constitution provides
each city with population of at least 250,000 , or each
province, shall have at least 1 representative. Take note
there is a comma to distinguish the requirement for the
population between a city and a province. A city requires
250,000 population before it can be considered as a
legislative district whereas a province does not require such.
That requirement of population in a city is only an initial
requirement which means that it can be increased provided
in the beginning it has a population of 250,000.
Take note of the case of Mariano vs COMELEC
wherein the SC said that the application of 250,000
minimum population requirement for cities is only to its initial
legislative district. It does have to increase its population by
another 250,000 to be entitled to additional legislative
district.
For exaample, the City of LapuLapu, it has now been
considered as 1 legislative district, any chance of increasing
its legislative district? The answer is yes. It dont need to get
another 250,000 in order to establish another legislative
district.
Similarly to the province, regardless of its population, it is
entitled to 1 legislative district and it can increase its
legislative district regardless of the population as long as it is
a province.
Take note of Aldave case vs. COMELEC
There was a creation of legislative district based on a
projected population of Malolos as a city. SC was saying that
that was a void law because its contrary to the provision of
the Constitution in so far as the requirement of 250,000.
It should be based on actual population. The increase if
there is any assuming that it started with a projected
population, the increase to 250, 000 is entitled to have a
legislative district only in the immediately preceding election
after the attainment of 250, 000 population.
So you have to wait until after an election where you can
establish that indeed it has a population of 250, 000 in order
to entitle it to a legislative district. And this is based on a
survey that they hold every 3 years after an election.
A city that has attained a population of 250, 000 is entitled to
a legislative district only in the immediately following
election.
As the population increases, there will be a corresponding
increase also in the legislative districts. This depends on
sometimes also the creation of provinces because
regardless of population, a province is entitled to at least one
legislative district representative.
So how do you establish a province? Based on the LGC,
you take note of the:
1. Population
2. Area requirement
GR: contiguous, no less than 20, 000 km
EXC: (in relation to the creation of legislative
district) If the province consist of island
Like the Dinagat Island, it does not actually comply
with the area requirement but because its self
sustaining, its creation as a province as sustained
as to its constitutionality and thus they have one
legislative district there
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
3. Income requirement not less than 200M
Again, who will create a legislative district?
Case: Sema vs COMELEC
In this case, it was the regional assemblies that created
cities. As consequence of which they established a
legislative district and there was a question on its
constitutionality. Can it be delegated to a regional assembly
of the autonomous region of Muslim Mindanao? SC said that
congress cannot validly delegate to the ARMM regional
assembly the power to creative legislative districts. The
power to increase the allowable membership of the house of
representative and to reapportion legislative district is vested
exclusively in congress.
2. Party List System
Now we go on the other kind of the members in the house of
representative: THE PARTYLIST
There has been a change in the concept, actually its there
but our understanding of it, we thought it is limited to sectoral
representation until Atung Paglaum Inc. vs the
COMELEC2, the principle there was enunciated by the
supreme court.
This case partially abandoned the rulings in Ang
Bagong Bayani vs COMELEC and BANAT vs
COMELEC.
Atong Paglaum, Inc. and 51 other parties were
disqualified by the Commission on Elections in the May
2013 party-list elections for various reasons but
primarily for not being qualified as representatives for
marginalized or underrepresented sectors.
Atong Paglaum et al then filed a petition for certiorari
against COMELEC alleging grave abuse of discretion
on the part of COMELEC in disqualifying them.
ISSUE: Whether or not the COMELEC committed
grave abuse of discretion in disqualifying the said
party-lists.
HELD: No. The COMELEC merely followed the
guidelines set in the cases of Ang Bagong Bayani and
BANAT. However, the Supreme Court remanded the
cases back to the COMELEC as the Supreme Court
now provides for new guidelines which abandoned
some principles established in the two aforestated
cases. The new guidelines are as follows:
I. Parameters. In qualifying party-lists, the COMELEC
must use the following parameters:
2
uberdigest
1. Three different groups may participate in the
party-list system: (1) national parties or
organizations, (2)regional parties or organizations,
and (3) sectoral parties or organizations.
2. National parties or organizations and regional
parties or organizations do not need to organize along
sectoral lines and do not need to represent any
marginalized and underrepresented sector.
3. Political parties can participate in party-list elections
provided they register under the party-list system and
do not field candidates in legislative district elections. A
political party, whether major or not, that fields
candidates in legislative district elections can
participate in party-list elections only through its
sectoral wing that can separately register under the
party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political
party through a coalition.
4. Sectoral parties or organizations may either be
marginalized and underrepresented or lacking in
well-defined political constituencies. It is enough that
their principal advocacy pertains to the special interest
and concerns of their sector. The sectors that are
marginalized and underrepresented include labor,
peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas
workers. The sectors that lack well-defined political
constituencies include professionals, the elderly,
women, and the youth.
5. A majority of the members of sectoral parties or
organizations that represent the marginalized and
underrepresented must belong to the marginalized
and underrepresented sector they represent. Similarly,
a majority of the members of sectoral parties or
organizations that lack well-defined political
constituencies must belong to the sector they
represent. The nominees of sectoral parties or
organizations that represent the marginalized and
underrepresented, or that represent those who lack
well-defined political constituencies, either must
belong to their respective sectors, or must have a track
record of advocacy for their respective sectors. The
nominees of national and regional parties or
organizations must be bona-fide members of such
parties or organizations.
6. National, regional, and sectoral parties or
organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at
least one nominee who remains qualified.
II. In the BANAT case, major political parties are
disallowed, as has always been the practice, from
participating in the party-list elections. But, since theres
really no constitutional prohibition nor a statutory
prohibition, major political parties can now participate in
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
the party-list system provided that they do so
through their bona fide sectoral wing (see parameter
3 above).
Allowing major political parties to participate, albeit
indirectly, in the party-list elections will encourage them
to work assiduously in extending their constituencies to
the marginalized and underrepresented and to those
who lack well-defined political constituencies.
Ultimately, the Supreme Court gave weight to the
deliberations of the Constitutional Commission when
they were drafting the party-list system provision of the
Constitution. The Commissioners deliberated that it
was their intention to include all parties into the
party-list elections in order to develop a political system
which is pluralistic and multiparty. (In the BANAT case,
Justice Puno emphasized that the will of the people
should defeat the intent of the framers; and that the
intent of the people, in ratifying the 1987 Constitution, is
that the party-list system should be reserved for the
marginalized sectors.)
III. The Supreme Court also emphasized that the
party-list system is NOT RESERVED for the
marginalized and underrepresented or for parties who
lack well-defined political constituencies. It is also for
national or regional parties. It is also for small
ideology-based and cause-oriented parties who lack
well-defined political constituencies. The common
denominator however is that all of them cannot, they do
not have the machinery unlike major political parties,
to field or sponsor candidates in the legislative districts
but they can acquire the needed votes in a national
election system like the party-list system of elections.
If the party-list system is only reserved for marginalized
representation, then the system itself unduly excludes
other cause-oriented groups from running for a seat in
the lower house.
As explained by the Supreme Court, party-list
representation should not be understood to include only
labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, overseas
workers, and other sectors that by their nature are
economically at the margins of society. It should be
noted that Section 5 of Republic Act 7941 includes,
among others, in its provision for sectoral
representation groups of professionals, which are not
per se economically marginalized but are still qualified
as marginalized, underrepresented, and do not have
well-defined political constituencies as they are
ideologically marginalized.
Question: What is this Partylist system?
This was established pursuant to the mandate of the
constitution having a representation coming from the
different sectors of society.
You will recall then we have the 1987 Constitution, first
consecutive terms of office of the congress especially the
house of reps, we had 20% allocation for sectoral
representation. They were chosen or appointed by the
president subject to approval of the commission of
appointments, they were appointed from the different sectors
of society. After that, RA 7941 was passed providing for the
manner of representation coming from the different sectors
of the society or coming from the partylist organization. So
you have the partylist system that was established pursuant
to RA 7941.
Under RA 7941, what is our representation there?
I want you to read the following relevant cases:
1. veterans vs COMELEC
2. banat vs COMELEC
3. Atung Paglaum Inc. et al vs COMELEC, April 2, 2013
Case: Atung Paglaum Inc. et al vs COMELEC
In this case, you take note that the purpose of partylist is
supposedly to democratized political power by giving political
parties that cannot win in a legislative district elections a
chance to win seats in the house of representative. They
composed of 20% of the total membership of the house of
representative.
So a voter elects 2 representatives in the house of reps, one
is for legislative district, another one is for partylist group or
organization. This partylist system however is not
synonymous to that of a sectoral representation. That was
our previous understanding of the partylist representation.
The SC was saying that the framers of the constitution of
1987 include partylist system both sectoral and non-sectoral
parties, this is clearly written in sec 5 par 1 art 6 where it
provides: there shall be a partylist system of registered
national, regional and sectoral parties or organizations. So it
was never the intention of the constitution to make the
partylist system exclusive in sectoral. What the framers
intended and what they expressly wrote in section 5 par 1
cannot be any clearer that the partylist system is composed
of three different groups and the sectoral party is only one of
the three groups. It leaves no room that national and
regional parties are separate from sectoral parties.
Take Note: the party list system now is composed of three
different groups:
1. National Parties Or Organizations
2. Regional Parties Or Organizations
3. Sectoral Parties Or Organizations
National and regional are different from sectoral
organizations so they dont need to be organized along
sectoral lines and need not represent any sectoral
organizations. They could be based on cause-oriented
organization or by ideology.
If it is a sectoral organization, they must strictly represent
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
the marginalized and underrepresented sector of the society.
RA 7941 defines the party as: either political party or
sectoral party
Political party -
is an organized group of citizens advocating
idealogoy or platform principles for the general conduct
of government.
Sectoral party-
organized group of citizens which belong to any of
the sectors enumerated in section 5 thereof whose
principal advocacy pertains to the special interest or
concerns of their sector
Includes:
-labor
-peasant
-fisherfolk
-urban poor
-indigenous cultural communities
-elderly
-handicapped
-women
-veterans
-overseas workers
-professionals
Under Section 5: not necessarily marginalized and
underrepresented because professionals are not, by
definition, marginalized and underrepresented. Not even the
elderly, women, and youth. But they may lack well-defined
political constituencies so they may organize among
themselves under the sectoral representation as long as
they have an advocacy for special interest and concerns of
their respective sectors.
Marginalized and underrepresented for purposes of
accreditation: it may refer only to sectors in section 5 that
are by nature, economically marginalized and
underrepresented. These are labor, peasant, fisher folks,
urban poor, indigenous cultural communities, handicapped,
veterans, overseas workers, and other similar sectors.
Majority of the members must belong to the marginalized or
underrepresented sector or must have a track record of
advocacy for the sector represented.
CASE: Ang Ladlad LGBT vs COMELEC
- Requirements to be considered as marginalized and
underrepresented sector:
1. It must demonstrate subordination or past
discrimination suffered by the group
2. An immutable characteristic, attribute, or experience
that define them as discrete group and
3. Present political or economic powerlessness
SC: Ang Ladlad has been shown to be historically
disadvantaged and discriminated against because of
negative public perception and has alleged violence against
members of the LGBT community by reason their sexual
orientation and gender identity. They are politically
powerless, thus qualified to be a member of the party-list
group.
Question: Who is going to represent the sectoral
organization?
Answer:
- He must not be a peasant himself to be a nominee
for the party list. As long as e has a track record of
advocacy for the sector he is representing, he
qualifies.
- Elderly woman and youth need not be marginalized.
It is enough that they have Well-defined political
constituencies to sit in the house of representatives
and be part of the party-list system.
Guidelines established in ATUM PAGLAUM
INCORPORATED in representation of party-list system:
1. National parties or organizations, regional parties or
organizations, sectoral parties or organization may
participate in the party-list system
2. National parties or organizations, regional parties or
organizations do not need to organized along
sectoral lines and do not need to represent any
marginalized and underrepresented sector.
3. Political parties can participate in the party-list,
provided that they register under the party-list
system AND they do not field candidates in
legislative elections they can only be represented
by the sectoral wing of their political party.
A political party whether major or not that fields candidates
legislative candidates in the legislative district elections can
participate in a party list elections through a sectoral wing
that can separately register under the party list system.
Liberal Party for example or kabataan only representing the
youth sector
The sector wing is by itself an independent sectoral party
and is linked to a political party through a coalition
A sectoral party or organization may either be:
1. marginalized and underrepresented or;
2. lacking well defined political constituencies
It is enough that their principal advocacy pertains to the
special interest and concerns of their sector. They need not
be underrepresented or marginalized.
Example: Gabriela need not underrepresented or
marginalized. most of the members are professionals.
The sectors that are marginalized and underrepresented
include labor, peasants fisherfolk, urban poor indigenous
cultural communities veterans handicapped and overseas
workers
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
The sectors that lack well defined political constituencies
include professional elderly women and youth sector
number 5, A majority of the members of the sectoral parties
or organization that represent the underrepresented and
marginalized must belong to marginalized and
underrepresented they represent. Similarly the majority of
the members of sectoral parties or organization that lack well
defined political constituencies must belong to the sector
they represent.
The nominees either must belong the respective sector or
must have a track record for their respective sector
Finally, national regional and sectoral parties or
organizations shall not be disqualified if some of their
nominees are disqualified provided that they have at least
one nominee that remains qualified
Manner Of Representation - allocation of seats
20% of the total membership of Congress
if 250 total members then they should have 50
seats in the house of representatives
As the legislative districts increase in number then there is
also corresponding increase in their representation because
theirs is 20%
should it be all filled up ang 20%?
In Banat which is the prevailing principle regarding the
manner of representation
1. To get a guaranteed seat you should have obtain 2% of
the vote cast for the party list system
what about the additional seat?
it will be based on highest to lowest in the ranking in the
votes they have obtained:
1.The parties, organizations, and coalitions shall be
ranked from the highest to the lowest based on the
number of votes they garnered during the elections.
2. The parties, organizations, and coalitions receiving at
least two percent (2%) of the total votes cast for the
party-list system shall be entitled to one guaranteed
seat each.
3. Those garnering sufficient number of votes,
according to the ranking in paragraph 1, shall be
entitled to additional seats in proportion to their total
number of votes until all the additional seats are
allocated.
4. Each party, organization, or coalition shall be entitled
to not more than three (3) seats.
Question: how is this being computed?
Answer: highest to lowest you have to get at least 2%
in order to get a guaranteed seat. assuming that there
at least 34 political groups or partylist organizations
who obtained 2%
if total allocation is 50, 50-34 how many seats to be filled up?
there would only be 16 seats left
number of votes you garnered divided by the total votes cast
for the party list system. so even if less that 2% imong votes
but you still covered the 16 seats then you can get a seat in
the partylist. that is after you distribute the seats to those
who got the 2%. but if you got more the 2% say 9%, what is
the maximum seats that you can get?
3 seats lang. again go back to the parameters again
proportionate representation based on the survey every after
3 years. in the legislative district na
LEGISLATIVE DISTRICT
The number of members in Partylist System will depend on
the number of members in the House of Representative from
legislative districts.
PERSONS EXERCISING LEGISLATIVE POWER
1. The Congress,
2. Local legislative councils:
a) Regional assembly,
b) Sanggunian Panlalawigan/ Panlunsod/ Bayan/
Pangbarangay
3. People through INITIATIVE AND REFERENDUM
a) initiative on statutes: RA 6735
4. President exercising legislative powers
a) GR: No
b) Exc:
- Permissible delegation under Sec 23 & 28 of
Article 6 Constitution
- During martial law
- During revolution government ex. Time of
Marcos and Cory Aquino
LEGISLATIVE PRIVILEGES/ PARLIAMENTARY
IMMUNITIES
1. FREEDOM FROM ARREST
Even if he is not attending session, so long as the
Congress is in session, he cannot be arrested.
Limited only when the congressman is charged with
an offense which the imposable penalty is not more
than 6 years of imprisonment.
Jalosjos case: he was detained and, convicted
and confirmed by the SC.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Trillanes case: he was not convicted yet, just
detained.
They wanted to attend the session of Congress,
they asked that they be allowed to be escorted to
Congress.
Ruling: Remember that even if the Congress enjoy
parliamentary immunities, these are exemptions
rather than general rule.
In Trillanes, the presumption of innocence does
not necessarily carry with it the full enjoyment of civil
and political rights. While he was not convicted yet,
the fact is he is charged with capital offense which is
not bailable. Therefore he cannot demand rights
similar to the rights belonging to person who is in
public at large, who is not detained.
The history of provisions granting the
Congressmen these immunities from arrest and
detention shows that the same is always been
granted in restrictive sense.
In Jalosjos, he was already convicted, if you allow
him to freely attend sessions in Congress, that
would violate the equal protection clause. There is
no substantial distinction between a convicted felon
who is a congressman and a convicted felon who is
an ordinary individual.
2. FREEDOM OF SPEECH
To say anything or against anything or anyone under
the sun, even if derogatory
Even outside the halls of Congress so long as
related to their legislative function. This extends to
his staff and to any matter communicative in nature:
not only oral, but also includes reports
No Civil and Criminal Liability
Limitations of Freedom of Speech
- Must be done during the performance of their
legislative function: in the debate and
discussion.
- Osmea vs Pendaton case: The privilege
does not extend to exemption from
administrative liability. If derogatory
remarks can be classified as disorderly
behavior, he can be disciplined by
Congress or his respective houses.
- The privilege is exemption only from civil and
criminal liability, not administrative liability.
INHIBITIONS/ DISQUALIFICATIONS
- Appointments to certain offices
2 OFFICES THAT THEY ARE PROHIBITED FROM
BEING APPOINTED
1. INCOMPATIBLE OFFICE
He is considered resigned once he accepted an
appointment in an office which is incompatible with him as a
member of the Congress considering that we observe the
separation of powers.
No member of the House of Representative who can
maintain an employment in the government or any
subdivision or agency or instrumentalities including GOCC
or its subsidiaries during his term without forfeiting his seat.
If he accepts, he forfeits his office. Forfeiture is
automatic upon assumption of such office incompatible with
his seat in Congress.
Ex. As Secretary of DILG, cannot remain as member of
Congress because there would be fusion of powers.
Libad vs Gordon case:
Gordon, who was a senator at that time, was elected
as Chairman of Philippine National Red Cross
(PNRC). Supreme Court, he did not relinquish his
senatorial post despite his election to and his
acceptance of position as Chairman of PNRC Board
of Governors because PNRC is a private
organization, merely performing public functions and
thus, the PNRC Chairman is not a government
official/employee. The position may be held by any
individual including a senator or a member of House
of Representatives. PNRC is autonomous and
independent of Phil Government.
2. FORFEITED OFFICE
In other words, he forfeits his seat. Forfeiture is
automatic upon assumption of any office incompatible with
his seat in Congress. And that's the issue in the case of
Liban vs. Gordon.
Gordon was elected was chairman of the Philippine
National Red Cross. He was urged to resign after he was
elected to be the chairman of the PNRC
The Supreme Court said Richard Gordon did not relinquish
his senatorial post despite his election to and acceptance of
the post as the Chairman of the PNRC Board of Governors.
Why? Because the PNRC is a PRIVATE ORGANIZATION,
merely performing public functions, and thus the PNRC
Chairman is not a government official or employee. Not
being a government office, the PNRC Chairmanship office
may be held by any individual, including a senator or a
member of the house of representatives. PNRC is
autonomous and independent of the Philippine Government.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
So PRNC Chairmanship is not a government office, or an
office in a GOCC for purpose of the prohibition in the 1987
Constitution. Senator Gordon can validly serve as the
chairman of the PNRC without giving up his senatorial
position.
On the other hand, they cannot be also be appointed if the
office is FORBIDDEN.
3. FORBIDDEN OFFICE
What are these offices that are forbidden?
This is when he is appointed:
1. To an office which may have been created, or
2. When the emoluments thereof where increased during the
term in which he was elected.
Even if he resigns, he is disqualified for appointment. So the
ban against appointment to the office created or emoluments
thereof increased shall, however, last only for the duration of
the term. Once the term ends, then he will now be qualified
for appointment.
NOW WE GO TO THE INHIBITIONS.
Most of the members of the Congress before are lawyers. As
a lawyer take note, it is prohibited of a lawyer who is a
member of Congress to 1personally appear as counsel
before any court of justice or before the electoral tribunals,
quasi-judicial and other administrative bodies. Including the
first level courts, before kay appellate ra man. Now including
even trial courts. They cannot appear. Same with a
lawyering before the Securities and Exchange Commission,
that's the case of (inaudible) vs. Guzman, or any
administrative body like COMELEC or COA, they cannot
appear as well. Or even in the office of the Ombudsman
Remember, they are not prohibited to sign pleadings,
because the prohibition is limited only against personal
appearance. So if they sign a pleading and not appear
before the courts, it's not prohibited. Counseling likewise is
not prohibited.
Then they shall 2not be directly or indirectly be interested
financially in any contract with or any franchise or
special privilege granted by government or the
subdivision, agency or instrumentality thereof including
any GOCC or its subsidiary during his term.
Example, when you borrow money for business purposes,
that's prohibited. But if you borrow money from Land Bank
for the purpose of building your palace, that's not prohibited.
You are also 3prohibited from intervening in any manner
before of any office of the government of his pecuniary
benefit or where he may be (inaudible) to act on account
of his office.
Take Note, this prohibition does not apply to members
of Congress. It applies to all government officials and
employees because this is provided for under RA 3019 as a
prohibited act considered as a graft or corrupt practice.
LET'S GO TO THE QUORUM AND VOTING.
On the Quorum. It is the required number of members of
Congress to be present in order to legally transact business,
or to pass laws. So then, what is the requested quorum to
legally transact business?
All that is needed is majority. And in the case of Avelino vs.
Cruz, when the Constitution declares the majority of each
house to constitute a quorum, it does not mean all the
members. In Santiago vs. Guingona, majority means
"greater number" or more than half. So meaning, if there are
24 members of the Senate, more than half of 24. That's 12
plus 1.
In the house of reps, assuming that there are 250 members.
Divide it by 2 plus 1. Thus it should be attended by at least
126 members.
Now then, ingon sila, if that would be the basis of the quorum,
it would be hard, especially if nangabroad, or sick. They are
sick for whatever reason. Now what would then be the basis
of the quorum? Should it still be the total membership of the
house concerned?
Mao na it was qualified in the case of Avelino vs. Cruz.
It should be based on whether they can be coerced into
attending the session. So it has to be within the coercive of
the house. Not necessarily the total membership of the
house. So that means if, of the 24 members, 2 of whom are
abroad, they are excluded in the determination of quorum. It
will be based only on number 22 divided by 2 plus 1. That
would be 12. Including the one that is in the ICU. He will be
included in the computation of quorum because he can still
be compelled to attend. Especially those who are just
sleeping. But outside of the country, the warrant will not be
effective.
The warrant will not be effective outside of the country to
compel that member to attend the session. So its useless!
And that member is excluded from the determination of
quorum.
However, there is a SHIFTING MAJORITY REQUIREMENT.
To start with a transaction, you need a quorum, which is
more than half of the total membership (50%+1) of those
within the coercive power of the House concerned. So they
would start with a quorum, if you have any doubt as to the
quorum, you can always ask for the division of the house,
actually it means that you can ask for the calling of
attendance, tawagan per district then they will say their
name or they would say their district. So that they would
know kung present ba or there is a quorum. Usually they
would assume that there is a quorum. In order to pass a law
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
what is needed only is a majority of those who are present
constituting the quorum, so if there were 13 present, you
would only need 7 to pass the law. But you know,
hinay-hinay na nah ang uban pangabot. This is now what we
call a shifting majority, as the number of people attending the
session increases, there is also the corresponding increase
in the requisite majority to pass the law.
VOTING MAJORITY
1. Ordinary Majority
2. Qualified Majority
a. there is 2/3,
b. 3/4 (proposal for amendments to the
constitution or revision),
c. 1/5 (impeachment).
Kung taas na ganeh kailangan, kasagaran
kay 2/3 gyud na ang ilang gigamit. Ang
inyung kailangan timan-an is whether that
is 2/3 voting jointly or separately. In most
cases, they vote separately.
There is one instance only wherein they
vote jointly and a ordinary majority vote
is needed, this has something to do with
1. Martial Law and
2. the suspension of the writ of habeas
corpus by the President.
Immediately, they will convene and decide
whether to revoke it and all that is needed is
the vote of the majority voting jointly in a
joint session.
All the rest, voting separately, whether or
not the provision is silent.
For Example, as to the matter of proposing
amendments to the Constitution. The law
states votes of all the members of
Congress. The law is silent whether they
would be voting separately or voting jointly.
Kay kung voting ka jointly, alkanse ang
senado kay there is only 24 of them,and
there are 250 members in the House of
Representatives. So it is understood that
they vote separately.
Apparently this was an oversight of the
Constitutional Commission because they
just copied the old law. The 1973
Constitution provided for unicameral
legislature, what we have now is Bicameral.
And specific requirements for voting
separately, for Example the declaration of
the existence of war klaro na that 2/3 votes
with both houses voting separately. Take
note of the different kinds of voting para
nigka-MCQ kay di ta mangamote. We want
to top the bar, so we have to be accurate.
DISCIPLINING OF MEMBERS OF CONGRESS
(in relation to Enrile, Estrada and Revilla)
If you have impeachment for Impeachable officers
particularly,
1. the President,
2. the Vice-President,
3. the Justices of the Supreme Court,
4. the Ombudsman and
5. the Commissioners of COA, CSC and COMELEC,
Question: How do you remove a member of Congress
before the expiration of term of office?
Answer: They are not impeached, of course. They are
removed only through 2/3 vote of the House concerned
for disorderly behavior.
Take Note of the penalties imposed for erring member of
Congress which is discretionary on each house.
Suspension should NOT be more than 60 days. If
the intention is more than 60 days, he should
instead be expelled.
Expulsion, not impeachment. For expulsion, you
need 2/3 vote of the members of the house
concerned. This is a penalty.
Therefore, the preventive suspension that was
issued by the Sandiganbayan, not the Senate,
as against Enrile, Estrada and Revilla has
nothing to do with disciplining them as members
of Congress. Such preventive suspension is
effective only for 90 days, so that was why they
were asking that after the expiration of the
90-day period that they be allowed to resume
attending senate sessions.
Take Note: Suspension by Congress - 60 days max
Preventive Suspension by SB - 90 days max
So does that violate separation of powers? NO,
because such is merely a preventive measure. The
disciplining is exclusive to the house concerned as a
penalty.
So take note in the case of Osmea vs. Pendaton,
the House of Representatives is the judge of what
constitutes disorderly behavior. The Courts will not
assume jurisdiction in any case that will amount to a
interference by the Judicial department with the
Legislature.
In the Jalosjos case, Supreme Court was saying
that it was never the intention of the framers of the
Constitution to shield the a member of Congress
from the consequences of his wrongdoings. A
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
member of Congress could only invoke the immunity
from arrest for relatively minor offenses punishable
at most by correctional penalties. In this case,
Jalosjos was disciplined and in fact expelled.
In the case of Paredes vs. Sandiganbayan,
Supreme Court said that this was applied in the case
of Enrile, Estrada and Revilla. A suspension
imposed by the Congress to a colleague is distinct
from a suspension spoken of in Sec13 of RA 3019. It
is not a penalty but a preliminary preventive
measure preceding from the fact that the latter is not
being imposed for misbehavior as a member in
Congress.
In the case of Paredes vs Sandiganbayan, SC said,
this was applied in Enrile, Estrada and Revilla, a
suspension imposed by Congress to a colleague is
distinct from suspension spoken is Section 13 of RA
3019. It is not a penalty but a preliminary preventive
measure preceding from the fact that the latter is not
imposed for misbehavior as member of Congress.
Thats all you need to take note. This was asked in
the bar especially in the term of suspension, 60 days
maximum and you need 2/3 votes of Congress for
expulsion.
Lets go now to ELECTORAL TRIBUNALS AND
COMMISSION ON APPOINTMENTS
What is the function of the Electoral Tribunals?
- It is the sole judge of qualifications, election
returns and any election protest involving the member
of Congress.
There are 2 Electoral Tribunal, one in the Senate and one
in the House of Representatives.
Composition:
9 each, 3 are Justices of the SC designated by Chief
Justices
6 members from house concerned by of proportional
representation coming from different political parties.
Take Note ha. It is proportional representation from
political parties and parties registered under party list
included that was the case of Pimentel vs HRET.
Who will be acting as Chairman Senior Justice of
the SC
Constitution intended for legislative and judicial
components of the Electoral Tribunals because they
do exercise quasi judicial functions and should
commonly share the duty and authority of deciding
all contests relating to election returns, qualification
of the members of the Congress either in Senate or
House of Representatives.
Jurisdiction of Electoral Tribunal:
Electoral Tribunal is sole judge of all contests relating to
election returns and qualifications of their respective
members.
Election Contest:
o It presupposes 2 parties involved. One is the
winning candidate and other defeated candidate.
Thus if there is only 1 candidate running for a
seat in the congress, does electoral tribunal have
jurisdiction over the question of qualifications?
This was the case of Daza,
there was a question of his qualification.
Accdg to the petitioner, he was a
greencard holder and so there was
question of residency. But he was the
only member who ran as Congressman
in his district. SC said that electoral
tribunal does not have jurisdiction
because there is no contest as there
is only 1 candidate. When we say
contest, there is someone who is
contesting or challenging your election
with the end in view that in the event you
are removed, he will replace you. In this
case, the citizen filing disqualification
case against member, if he is
disqualified will not replace him because
he did not run for Congress. That cannot
be considered as election contest.
o Does this mean that no one can question the
qualification of a lone candidate who may be
disqualified as member of Congress? There is
still a remedy. But remedy is not with electoral
tribunal but with the House concerned through
the EXCLUSIONARY PROCEEDINGS.
So first of all, that should have been filed
when his candidate filed cert of
candidacy. But sometimes over run siya
sa election. Disqualification case is still
pending when election has been held.
So can you continue with the electoral
tribunal in the disqualification
proceeding?
Certainly not. It will be continued in the
house concerned in an exclusionary
proceeding in order to protect the
membership of the Congress. To make
sure that only qualified members shall be
proclaimed and continue to serve as
members. That was the case of Daza.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
o Who can be the subject of election contest?
GR: Only the member which means
that if he is not yet a member of
Congress, electoral tribunal does not
have jurisdiction over the election
contest. Thus there has to be a valid
proclamation by the COMELEC
otherwise it will remain in the COMELEC
before you can file a disqualification
case in the electoral tribunal.
Take Note: There is no pre-proclamation
contest involving President, Vice
President, and member of Congress. So
in which case there may be some
disqualification or election contest in the
COMELEC if it is limited only to
questions relating to election returns.
EXC: In your election laws, when it is
obvious that there has been some errors
committed in the election returns in
which case, before you are proclaimed,
it has to be settled by Congress although
there will be no pre-proclamation contest
in the COMELEC. That s an exception.
Cases you need to read relating when Electoral tribunal
has jurisdiction over petitions relating to election contest
involving members of Congress. Codilla vs De Venicia
& Lim Kai Chong vs COMELEC
o Codilla vs De Venicia
Cedilla was disqualified even before election. Non
the less, he won the election. Deleted unta siya so
his votes were not counted. Naturally, iya kontra wla
man lain was then proclaimed by the COMELEC
division. The disqualification of Codilla however was
appealed by Codilla seasonably in the COMELEC
en banc. In the meantime, padayon ang elections
and Larrazabal was then proclaimed as the duly
elected congresswoman, Locsin rather, in the
district of Ormoc. Later, a year before the expiration
of the term, COMELEC finally decided that the
disqualification of Codilla was invalid. In other words,
hes still on. And since he garnered the highest
number of votes, he was proclaimed duly elected
Congressman.
What did Codilla do, the term was already expiring?
He asked De Venecia that he be sworn in as
member of the house. De Vencia refused because
there was still a remember, he said that he should
file quo warranto case against Locsin at the tribunal.
Does HRET have jurisdiction over the case of
Codilla against Locsin? SC said no need for quo
warranto. In the first place, there was an invalid
proclamation because there was still a pending
appeal by Codilla. COMELEC was never divested of
jurisdiction over that election contest against his
disqualification. So it should have been resolved and
there should have been proclaimation. Whoever is
proclaimed shall be considered as a duly elected
member. The moment he is proclaimed as duly
elected then he becomes a member when he
swores in office and he can now be under the
jurisdiction of the ET. In this case, Locsin has not
been validly proclaimed therefore she is not a duly
elected member of congress.
o In the case of LimKaiChong
it was different. It is different because it is
the same reason for disqualification due to her
citizenship. That was never resolved yet by
COMELEC. Election ended. That disqualification
case was still pending. What happened? Because of
the experience that issues of disqualification are
resolved nearing the expiration of the term, the
COMELEC issued a resolution stating that whoever
garners the highest number of votes should be
proclaimed regardless whether there is a pending
disqualification case, it will only be continued in the
proper forum. Since LimkaiChong obtained the
highest number of votes, she was then proclaimed
as the duly elected member of congress from her
district regardless of the pendency of the
disqualification case filed against her by Villando
and Paras and others. So she became a member,
was that a valid proclamation? ASNWER is yes.
So now where do you filed/continue the
disqualification case? Does COMELEC still have
jurisdiction? Answer is NO because Limkaichong
was already proclaimed as duly elected member of
Congress. You go now to the ELECTORAL
TRIBUNAL.
Does the ET have jurisdiction over the case
of Limkaichong? It could have assumed jurisdiction.
The trouble however, the ground for disqualification
was rather unique, it was on citizenship and it is an
established rule that if you question the
naturalization of a particular individual, that is
exclusive to the Naturalization Tribunal. No other
forum has authority to solve that issue. In other
words, the ET should have jurisdiction but they
cannot determine whether or not Limkaichong was
qualified on the basis of the validity of her
naturalization because they do not have jurisdiction
to determine the validity of the naturalization
because it is exclusive to the naturalization tribunal.
So SC said here that first of all, the proclamation of a
winning candidate divested the COMELEC of its
jurisdiction over matters pending before it at the time
of the proclamation.
In that case of Limkaichong, this is now the
continuation, Ronald Villando vs HRET. Clearly
under law and jurisprudence, it is the state
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
(SOLGEN) through its representative, designated by
statute, that may question the illegally or invalidly
procured certificate of naturalization in the
appropriate naturalization proceedings. HRET no
matter how complete and exclusive, does not carry
with it the authority to delve into the legality of the
judgment of naturalization in the pursuit of
disqualifying LimkaiChong. To rule otherwise would
constitute a collateral attack on the citizenship of the
father of Limkaichong which is not permissible.
So it is settled. While HRET has the
authority to settle all the issues of all qualification,
but on the matter of naturalization, that is exclusive
to the naturalization tribunal which can only be
questioned by the representative of government and
not just any individual.
Another note. What about the members of the party-lists who
have been nominated as members of the house? If there is
any question under qualifications, who has jurisdiction if you
have to question the qualification of a nominee?
Take note the case of Abayon vs HRET,
SC said it is for the HRET to interpret the meaning of this
particular qualification of a nominee. The need for her or him
to be a bona fide member or representative of his party-list
or organization, in the context of the facts that are
characterized in this Abayon and Palparan, in relation to
Aangat Tayo and Bantay, respectively in the marginalized
and underrepresented interest that they presumably
embody.
Section 17, Article 6 of the Constitution provides that HRET
shall be the sole judge of all contests relating to, among
other things, the qualifications of the members of the house
of reps. Since party-list nominees are elected members of
the House of Representatives, the HRET has jurisdiction to
hear and pass upon their qualifications.
By analogy in the cases of district representatives, once the
party or the organization of party-list nominees have been
proclaimed and the nominee has taken his oath and
assumed office asa member of the House of Reps, the
COMELECS jurisdiction over contests relating to the
nominees qualifications ENDS and the HRET BEGINS.
The COMELECs jurisdiction relating to election contests
relating to disqualification ends and the HRETs jurisdiction
begins.
Then there is the Abayon case. Take note that the issue is
on the validity of the nomination. Are you familiar with the
case of Lokin Jr. vs. COMELEC? The issue was about the
leadership within the party list organization. One of the
leaders nominated one nominee, the other leader nominated
another nominee. So the question was who between these
nominees is validly nominated and who shall sit in the House
of Representatives. So for this issue, who is going to resolve?
HRET, COMELEC, or the courts?
Are you familiar of CIBAC?
Villanueva is saying that has the authority to nominate and
then there was this Secretary General who also said that he
has the authority to nominate. So there were two nominees
representing CIBAC.
Whos going to resolve the issue?
SC said that under RA 7931, this time the COMELEC has
jurisdiction over the nomination of party list representatives
and with the prescribing of the qualification of each nominee
and that no grave abuse of discretion can be attributed to the
COMELEC by division or COMELEC en banc when it
declared president Villanueva the proper party to submit
CIBACs certificate of nomination instead of Perla who
alleged to be as the acting secretary general.
As provided in the Atienza vs. COMELEC,
COMELEC also possesses the authority to resolve
intra-party disputes as a necessary attribute of its
Constitution-mandated power to enforce election laws and
registered political parties. The power to rule upon questions
on party identity and leadership is exercised by the
COMELEC. In other words, the justification being that it is
indeed the jurisdiction of the COMELEC to determine
questions of leadership in the political or sectoral party. Thus,
if theres a conflict on the validity of nomination because of
the conflict in the leadership, that has to be resolved by the
COMELEC, not the Court and not even the electoral tribunal.
Once the COMELEC says that the nomination is valid and
theres a question on the qualifications of the nominee, that
would be a different story. COMELEC will have no
jurisdiction; it will be the electoral tribunal.
The Powers Of The Electoral Tribunal.
How do you file a case in the electoral tribunal? There are
two ways. (ordinary election protest and quo warranto pro.)
1
ordinary election protests was there fraud, violence,
vote buying during the election period? Then we go into
returns. What is involved in returns since theres no
pre-proclamation?
In the case of Barbers vs. COMELEC, the phrase election,
returns, and qualifications must be interpreted in its totality
as referring to matters affecting the validity of contestees
title. But if it is necessary to specify, we can say that election
refers to the conduct of the polls including the listing of the
voters, the voting of the electoral, campaign and the casting
and counting of the votes. The returns refer to the canvass
and the proclamation of the winners including questions
concerning the composition of the Board of Canvassers and
the authenticity of the election returns and finally, on
qualifications refer to matters that could be raised in a 2quo
warranto proceeding against the proclaimed winner such
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
as disloyalty, ineligibility or inadequacy of his certificate of
candidacy. It could be an ordinary election protest or a quo
warranto proceeding.
Can the members of the electoral tribunal be removed
anytime? No because they have security of tenure. Once
appointed, even if there is a change of political party
affiliation that would not affect their membership as long as
at the time of the appointment they belong to a political party.
BAR - Is the decision of the electoral tribunal
appealable?
Answer: Its exclusive; thus not appealable even to the
Supreme Court unless theres an allegation of abuse of
discretion amounting to lack or in excess of jurisdiction.
Case in point: Abubakar vs. HRET. The SCs
jurisdiction to review decisions and resolutions of the
electoral tribunal operates only upon a showing grave abuse
of discretion on the part of the tribunal tantamount to lack or
in excess of jurisdiction.
Lets go to the COMMISSION ON APPOINTMENTS.
Its function is basically just to affirm and confirm the
nomination of the President for the certain positions in the
government.
Take note what are these appointments of the President that
would require confirmation from the Commission of
Appointments. Memorize it.
What are those appointments? Those found in Sec. 16, Art.
VII:
1. Heads Of The Executive Departments
2. Ambassadors, Other Public Ministers And Consuls
3. Officers Of The Armed Forces From The Rank Of
Colonel Or Naval Captain To The General Or Admiral
4. Other Officers Whose Appointments Are Vested In
Him In This Constitution Such As The:
a) Commissioners Of COA, COMELEC And
CSC
b) Regular Members Of JBC
Pimentel vs. Executive Secretary-
The requirement of confirmation by the CA applies only to
REGULAR appointment of the officers mentioned above. It's
regular when done when congress is IN SESSION for a
PERMANENT position. Therefore, if the appointment was
done only in an ACTING CAPACITY/TEMPORARY even if it
was made by the PRESIDENT while CONGRESS was in
SESSION, that would NOT REQUIRE ANY
CONFIRMATION BY THE CA.
What is the Process Of The Confirmation? It depends.
1. Regular Appointments- those made while congress is in
session.
1. There will be NOMINATION by the President of the
appointee.
2. CA has 30 days within which to act. Now, what's the
action that may be taken by the CA? It may Approve/Confirm,
Disapprove or don't do anything, so bypass.
3. If approved, what will happen?
a) The commission paper will then be issued by the
president. The appointee will take his oath of office.
This will be effective reckoned from the time when
CA approved.
4. If disapproved, what will happen? Of course, he cannot
assume.
a) But can he be nominated again? NO once he is
disapproved!
5. If bypassed lng, can the same nominee be renominated?
a) YES!
2. Ad-Interim Appointments-
This happens when the congress is IN RECESS and the
president makes an appointment. This is PERMANENT
appointment if Ad Interim. This is effective immediately upon
qualification. The duration of appointment is LIMITED. It is
effective until it is DISAPPROVED upon resumption of the
session of the congress.
If maconfirm, then he continues until he is removed by the
president for loss of trust and confidence.
Question: If not acted upon/bypassed, until when can
he serve?(take note, permanent man ang appointment)
Answer: Only until the NEXT ADJOURNMENT OF
THE NEXT SESSION OF CONGRESS. This is because by
operation of law, his appointment EXPIRES. He is NOT
REMOVED because the appointment is permanent.
MATIBAG CASE-
the appointment of the chairman to the COMELEC; involving
Benipayo. Benipayo was a COMELEC commissioner. He
was then appointed as a chairman to the COMELEC. His
appointment was BYPASSED by CA. Since he was
appointed during RECESS, his appointment was
PERMANENT as chairman. And when the session of
congress resumed, he was never confirmed. So supposedly,
upon adjournment of the next session, his term as chairman
should have expired. But what happened? The president
Reappointed him during recess to the same position.
Can the president do that considering the prohibition against
reappointment to the position as COMELEC Commissioner?
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Is this Reappointment Ban applicable to appointments made
by the president during recess?
SC: The ban does not apply. The reappointment that is
prohibited by the constitution applies only to a REGULAR
APPOINTMENT that is CONFIRMED by the CA.
So now, you have a regular appointment of a commissioner.
It was CONFIRMED by the CA for a definite term. Upon the
expiration of the term, one cannot be reappointed to the
same position for more than the term for which he was
appointed.
In this case, it does not apply to Benipayo because the
appointment was just AD INTERIM. It was never confirmed.
So that the renomination was not considered as a
reappointment prohibted uner the constitution.
Members
Now, the CA, Take Note, is political in nature. Unlike the
Electoral Tribunal, the moment you change political affiliation,
automatically you are REMOVED as a member of the CA.
Ang electoral tribunal, you have to fill it up. there are 9
members. In CA, there are 24 members, 1 Chairman, who is
the president of the Senate. Total of 25 members, but it need
not be filled up, provided that there is a quorum. That's the
only requirement. There is a quorum.
Relate this to the appointment power of the president ha.
An Electoral Tribunal you have to fill it up. There
should be 9 each in the Electoral Tribunal.
In the Commission on Appointments, there are
24 members with the Chairman, the President of the Senate,
all in all there are 25. The 12 comes from the Senate, the
other 12 comes from the House of Representatives. But it
need not be filled up. All the six. Provided that there is a
quorum. Thats the only requirement.
POWERS OF CONGRESS
LEGISLATIVE INQUIRY AND QUESTION HOUR
These are aids to the making of laws. First you have
legislative inquiry and the question hour, otherwise known as
the oversight function of Congress.
On legislative inquiry, the justification is always in
aid of legislation.
By the time you will take the bar esiyam, it may be
controversial because there is now a pending complaint or
petition filed by Binay in the Supreme Court because they
thought that its no longer in aid of legislation but in aid of
election. Do you understand? Because apparently, they felt
that there is no plan to make a law that would relate to the
legislative inquiry being conducted by Pimentel, Trillanes
and Cayetano. There has been no hint or any indication that
there is going to be a law that is going to be passed that is
relevant to the inquiries being conducted. Apparently, they
are trying to find evidence against the Binays for overpricing.
Thats the main purpose of the legislative inquiry. And now
there challenging that before the SC asking the court to stop
the conduct of the legislative inquiry because there is no
justification since it has no relation at all to legislation.
It is too general. It says in aid of legislation. Take
note however, that the Supreme Court said in a decided
case that it is not necessary that there is a pending bill that
the inquiry will help in that legislation or in the passing of that
pending bill. As long as it is relevant to lawmaking, it is
considered in aid of legislation.
Some of the cases that you have to take note in
legislative inquiry:
Bengzon vs. Senate Blue Ribbon Committee (G.R. No.
89914 November 20, 1991)
An investigation that seeks to determine whether a law has
been violated is not in aid of legislation but in aid of
prosecution and therefore a violation of the separation of
powers.
With respect to the case of Bengzon, there was
already a pending case for graft and corruption already filed
before the Sandiganbayan. The same was also the subject
matter of a legislative inquiry. And so the SC stopped the
conduct of the inquiry. It could be similar to the case of the
Binays because what theyre trying to look into is their
liability. Its not the proper forum. It should have been with
the court or an investigating body to look into the matter.
However, they cannot question Binay because hes an
impeachable official. So they cannot conduct investigation.
And he is supposedly to be in conspiracy with the son so it is
better discussed in the Senate inquiry or they can do grand
standing and it is published in all papers and broadcasted in
all TV and radio stations. Take note of the case of Bengzon
because it discusses the limitations on the power of
legislative inquiry.
But there is a qualification to that, guys. This is the
case of Standard Chartered Bank vs. Senate Committee
(G.R. No. 167173 December 27, 2007) which is a
qualification of the Bengzon case. This is the more recent
decision of the SC with regards to the conduct of legislative
inquiry. Take note because it came out in the bar esiyam.
The excuse that there is already a pending
investigation in violation of the separation of powers thus
Congress cannot conduct legislative inquiry, according to the
SC, is not the case. Supreme Court said
The mere filing of a criminal or an administrative complaint
before a court or a quasi-judicial body should not
automatically bar the conduct of legislative investigation.
Otherwise, it would be extremely easy to subvert any
intended inquiry by Congress through the convenient ploy of
instituting a criminal or an administrative complaint. Surely,
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
the exercise of sovereign legislative authority, of which the
power of legislative inquiry is an essential component,
cannot be made subordinate to a criminal or an
administrative investigation.
Another limitation on the power of legislative inquiry: The
Sub Judice Rule
There is a pending case in court, can it be the
subject matter of a legislative inquiry? When asked, the
witness will invoke his right to remain silent, his right against
self-incrimination and the sub judice rule.
What is this sub judice rule?
The SC said in the case of Romero II vs. Estrada (G.R. No.
174105 April 2, 2009
The sub judice rule restricts comments and disclosures
pertaining to judicial proceedings to avoid prejudging the
issue, influencing the court, or obstructing the administration
of justice. A violation of the sub judice rule may render one
liable for indirect contempt under Sec. 3(d), Rule 71 of the
Rules of Court. The rationale for the rule adverted to is set
out in Nestle Philippines v. Sanchez:
It is a traditional conviction of civilized
society everywhere that courts and juries, in
the decision of issues of fact and law should
be immune from every extraneous influence;
that facts should be decided upon evidence
produced in court; and that the
determination of such facts should be
uninfluenced by bias, prejudice or
sympathies.
This was in fact invoked by Chief Justice Corona
when he was the subject of an impeachment proceeding and
by earlier witnesses. I wonder, youre supposed to be a
witness in a legislative inquiry, not an accused. Youre
supposed to be an expert to shed light in matters that would
help them in their legislation.
Another limitation: Executive Privilege
The President cannot be called upon to answer in a
legislative inquiry. How about the Cabinet Members? The
executive privilege cannot be invoked by Cabinet members
unless the President or the Executive Secretary by the
authority of the President, invokes the same.
Matters of diplomatic negotiations are privileged
communications and cannot be the subject of inquiry. It is
part of the executive privilege of the president. In the
executive privilege, we take note of the principle: operational
proximity test. Communications between the president and a
subordinate such as in the case of
Nierre vs Senate;
these are privilege communication that cannot be
disclosed in the legislative inquiry.The requirement in the
constitution that the rules with regard to the conduct of
legislative inquiry must be established in compliance with the
due process of law. This is one of the limitations as well. In
the case of Nierre, conduct of legislative inquiry must be
done in accordance with established rules. In a legislative
inquiry it could be anyone who can be the subject of the
inquiry including cabinet members. In so far as the cabinet
members are concerned they need not secure the consent
of the president unless the matter that will be covered by the
inquiry relates to the executive privilege of the president in
which case either the president or the executive secretary
must invoke the executive privilege. Otherwise, if not
invoked, then a cabinet member can be compelled by
congress in a legislative inquiry to disclose the information.
Question: In a Question Hour (section 22), who
initiates the conduct of inquiry?
Answer: its either the congress or the cabinet member.
So the cabinet member may request an audience with
congress or congress may summon a cabinet member to
shed light on certain matters that would help congress
exercise its oversight function.
Example: a law has already been passed & they want to
modify it; change it; repeal it; or even improve it, then they
can ask the opinion of a cabinet member who is more
knowledgeable about the effectiveness of the
implementation of the law. So this is part of the oversight
function.
The power of oversight embraces all activities undertaken by
congress to enhance its understanding of or influence over
the implementation of legislation it has enacted. Clearly
oversight is a post enactment measure undertaken by
congress to monitor bureaucratic compliance with program
objectives to determine whether agencies are properly
administered to eliminate ways of executive dishonesty,
prevent executive usurpation of legislative authority and to
assess executive conformity with the congressional
perception of public interest.
The acts done by congress, therefore, in the exercise of
oversight powers may be divided into three categories:
Scrutiny
Investigation
Supervision
Question: if a cabinet member if summoned by
congress for a question hour does this need the consent of
the president?
Answer: yes
Question: if a cabinet member would ask for an
audience with congress or any of its committee, is the
congress or its committee obliged to have an audience with
the cabinet member?
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Answer: No, it is not mandatory on the part of congress
or any of its committees
CONTEMPT (it is an imprisonment for the duration of the
session)
In a legislative inquiry, if the person summoned does not
appear or refuses to appear, he can be cited for Contempt.
For how long?
If its the House of Representatives who issued the
summons---it should not be beyond its term, so not
beyond 3 years.
If Senateindefinite! Because the senate is a
Continuing body. While 12 senators term may have
expired, there are still 12 other senators who would
remain.
Power of Appropriation
The power of appropriation is the spending power or the
power of the purse belonging to Congress subject only to the
Veto power of the President. It carries with it the power to
specify the project or activity to be funded under the
appropriation law. What is the process?
The government budgeting process:
1. Budget-Preparationwho prepares the budget?
The Executive branch.
2. Submitted by the president to congress within 30
days from the opening of the regular session of
congress
Question: Who initiates the appropriation bill?
Answer: it is the House of representathieves
subject to amendments or revision by the senate (this is
what we call as amendment by substitution). Bottom
line, it must originate from the HOR.
Question: what are the limitations in the preparation of the
appropriation bill (the authority to disburse):
Question: Can the congress increase the budget
submitted by the government?
Answer: NO!
Question: Can it be decreased?
Answer: yes, definitely.
PORKBARELL/PDAF of the congressmen
Case of PHILCONSA vs Enriquez, G.R. No. 113105,
August 19, 1994 and LAMB vs Sec. of budget and
managment (2012)
SC Ruling: Prokbarel is not unconstitutional
because the role of members of congress is simply to
identify the projects for which they will spend their
discretionary funds for their district. In other words, thiers is
only recommendatory, stil It is up to the president through
the DBM to spend the money.
Case of Belgica vs Ochoa G.R. No. 208566,
November 19, 2013
SC: under the constitution the power of appropriation is
vested in congress subject to the requirement that
appropriation bills originate exclusively in the house of
representatives subject to the option of the senate to
propose or concur with amendments. When the budgetary
process commences from the proposal submitted by the
president to congress. It is congress which concludes the
exercise by crafting an appropriation act if they think
beneficial to the nation base on its own judgment, wisdom
and purposes. Like any other piece of legislationthe
appropriation act may then be subject to objection from the
branch tasked to implement it by way of a presidential veto,
as an exception (diba kung mu.veto and presidente, it has to
veto the entire bill). This is one exception when the president
is allowed to veto per item itemized veto. Now, thereafter
the budget execution comes under the domain of the
executive branch. So once the GAA (General Appropriation
Act) is passed then it is the president that spends the money
in accordance with the GAA. So the executive branch deals
with the operational aspect of the cycle including the
allocation and release of funds earmarked for various
projects. Simply putfrom the regulation of fund releases,
the implementation of payment schedules and up to the
actual spending of the funds specified in the law, the
executive takes the wheel. The DBM lays down the
guidelines for the disbursement of the fund. The members of
congress are then requested by the president (this is the
practice) to recommend projects/programs which may be
funded from the PDAF (Priority development Assistance
Fund). The list submitted by the members of congress is
endorsed by the speaker of the house of representatives to
the DBM which reviews in accordance with such list of
projects submitted is consistent with the guidelines and the
priority set by the executive. This demonstrate the power
given to the presidentto execute appropriation laws and
therefore to exercise the spending per se of the budget.
thats why it was not declared then unconstitutional then
because it is only recommendatory.
In PHILCONSA case, the court upheld the authority of
individual members of congress to propose and identify
priority projects because this was merely recommendatory in
nature and also recognized that the individual members of
congress far more than the president and the congressional
colleagues were likely to be knowledgeable about the
needs of their respective constituents and the propriety to be
given to each project.
In BELGICA case, in the final analysis the supreme court
strike down the porkbarrel system as unconstitutional. In
view of the inherent defects in the rules within which it
operates. To recount in so far as it has allowed legislators to
wield, in varying gradations, non-oversight, post-enactment
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
authority in vital areas of budget execution, the system has
violated the principle of separation of powers. They were
given the discretion on how to spend the fundsthey
participate in the execution of the budget when it should be
exclusive to the president as it is conferred to the
legislatorsthe power of appropriation by giving them
personally discretionary funds from which they are able to
fund specific projects which they themselves determine. It
has similarly violated the principles of non- delegability3 of
legislative power in so far as it created a system of
budgetting4 wherein items are contextualized into the
appropriation bills. It has floated the prescribed procedure of
presentment and in the process denied the president the
power to veto items.
2 powers of the president that has been violated:
1. execution of the budget
2. on vetoing (di na ma.veto the president kay di na
mu.agi sa iya)
These diluted the effectiveness of congressional oversight
by giving legislators a stake in the affairs of budget execution,
an aspect of governance which they may be called to
monitor only and scrutinize, the system has equally impaired
public accountability ; insofar as it has authorized legislators,
who are national officers, to intervene in affairs of purely
local nature, despite the existence of capable local
institutions, it has likewise subverted genuine local
autonomy ; and again, insofar as it has conferred to the
President the power to appropriate funds intended by law for
energy-related purposes only to other purposes he may
deem fit as well as other public funds under the broad
classification of "priority infrastructure development
projects," it has once more transgressed the principle of
non-delegability5.
Theres another thing, the DAP.
Araullo vs Aquino July 1, 2014 (GR NO. 209287)
Bali ni siyang Araullo. Theres an appropriation, and the
President is suppose to follow the appropriation law. What
happened in the DAP is that the President impound the
funds that were appropriated for certain items, if not, not
obligated at all. And consider them as savings even before
the end of the fiscal year. And thereafter spend the money
outside of the executive branch or spend the money for
certain projects of the government that are not included in
the GAA. In other words, there are three things that you have
to consider here. Which violated the power of Congress to
appropriate.
Bali ni siya, ang PDAF it violates the power of the president
to execute the budget. Ang DAP it violated the power of
Congress to appropriate. The president virtually usurps the
power of Congress to appropriate.
3
Word does not exist
4
supra
5
supra
So there are three things that you have to take note in
the questions of the constitutionality of DAP which
relates to appropriation:
1.) Disbursement of acceleration program. One of
the question is the withdrawal of unobligated
allotment from the implementing agencies and the
declaration of the withdrawals that is unobligated
allotments and unreleased appropriation as savings
prior to the end of the fiscal year. So what happened?
This unobligated funds actually mao ni silay income
of some government agencies. Gi withdraw. Or
obligated siya for certain projects pero wala gigasto.
Dili nato ni ipanghatag aning opisinaa kay corrupt
kaayo ni. Lets not spend the money. But there is
money allocated for a certain project. How ever it is
not spent. Or it could be that it was initially spent
pero wala gitiwas ang project and they were
considered as savings. Gi pool sila into a savings.
That is wrong. Because according to the Supreme
Court, mu ingon kuno kag savings at the end of the
fiscal year. And kanang wala magasto or sobra,
nagasto pero naai savings kay maybe because they
bid very well naka save sila. Now, you determine at
the end of the fiscal year human nimo ug gasto. Wa
mana nmu gastua. Sa ato pa you cannot have a
saving kanang quarterly. After three months. You
cant have semestral. It should be at the end of the
fiscal year.
2.) There is also the cross-border transfers. The
expenditures of the funds outside of the executive
department. Remember? There can be transfer of
funds from one item to another in the same
department. Not from one department to another
department. It can only be within the same dept.
General rule: there cannot be the juggling
of funds. There cannot be a transfer of items
from one to the other or from one dept to the
other. Mao nai gitawag nato ug juggling of
funds prohibited by law.
Exception: when it has the approval of the
president. However, limited within the
executive branch. In Congress, when it has
the approval of duha ha.
Kung sa Senate- Pres of the Senate.
House of Reps- Speaker.
Supreme Court- Chief Justice.
Commissions- it should be the Chairman of
which Commission, must have the approval.
And nahitabo ani , cross-border siya,
because there were some funds that were
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
given to Congress for the renovation of its
library. And library Congress mana,
legislative dept di unta na pwede. Some
funds were given to COA. For the hiring of
consultants kuno and the procurement of
computers and vehicles. Tagaan pa gni
kuno ug isa ang Chairman of COA. Now,
prohibited na siya because the Constitution
is very clear on this. Should there be any
transfer of funds or juggling of funds, it
should be done within the dept with the
approval of the head of the dept.
3.) Finally, the funding of projects and activities and
programs not covered by the appropriations in
the GAA.
Mao nai pinaka worst. Ingon nato it
is the Congress that authorizes diba? The
disbursement. This one it was the president.
Not even the president. It was the Secretary
of DBM that authorizes the disbursement or
projects not covered by the General
Appropriations Act. And which power the
president cannot delegate to a Sec of DBM.
So ang gibuhat nila karon I think congress is
going to pass a law that would authorize
which is still contrary to the Constitution.
Mao tong ingon si Drilon, there should be
judicial restraint. Patuyang nalang man sad
ning Supreme Court oi. The term is
overreaching. Practice kuno judicial restraint.
Unsaon pag practice na thats there function.
The Constitution says under Section 1. They
can review when there is somebody who
would challenge it, whether there has been
a grave abuse of discretion amounting to
lack or excess of jurisdiction. In the first
place, it was the Mother who gave that
power to the SC. Go back kuno sa original
nga your function is only to act as referee,
settle conflicts, dili manghilabot. So, TN of
these cases.
Again I repeat, Belgica et al vs Exec Sec Paquito N.
Ochoa November 19, 2013 (GR NO. 208566) and the
case of Araullo et al vs Aquino July 1, 2014 (GR NO.
209287).
Presidential Veto:
General Rule: Entire Bill is going to be vetoed
Exceptions: 1. Revenue Bill
2. Appropriation Bill
3. Tariff Bill
They can be itemized. And inappropriate provisions.
Congressional override 2/3 votes of both houses
Ex: a bill is vetoed by the president. What would the
president do? He has to return the bill to the house
of origin. If he does not approve or veto it within 30
days, then after 30 days, the bill becomes a law by
his inaction. He has to veto it with a veto message to
the house of origin. Veto message proposal to
change the law in order for him to sign it. If the
house of origin is agreeable, then they will insert that
and the will improve, they will have to amend their
bill. If they are against it, then they will have to vote
again on the same bill regardless of the suggestion
of the President. To do that, they have to get 2/3
votes of all the members. But TN: it must also be
voted by the other house with the same number of
votes. If they failed to do that, your bill is as good as
dead.
Informing Function State of the Nation Address (SONA)
Where the president addresses the nation during the
opening---
Power of Impeachment of Congress
Suffice to say that it is the House of Representatives
that initiate an impeachment, 1/3 votes of the
members of the House of Representatives is
needed. It used to be 1/5, now 1/3. On conviction,
the Senate is acting as the tribunal which needs 2/3
votes in order to convict and/or remove the
impeachable official.
Non-legislative Powers
Canvass election returns of the President and the
V-President
Determine the existence of the state of war
Concurs the treaty entered into by the President
Confirm appointments made by the President
Calling for special elections
JUNE 20
Do not forget thaw law on RA 7941 especially on the
accreditation of national, regional and sectoral parties and
organizations. Or more on disqualifications for
accreditations.
Question: What are the parties or organizations that
cannot be accredited or is disqualified for accreditation?
1. When it is a religious sector
2. When it is funded by foreign government
3. It uses force and violence as means of achieving the
purpose of their party or org.
4. Supported by the government or identified closely with
government
EXECUTIVE DEPARTMENT
Function of the President
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1. it exercises executive power,
a) executive power basically refers to the presidents
power to
i. be the Chief Executive and administrator of
the law of the land.
1. As a Chief Executive, he is the
a) head of all the heads of the
executive departments and as such
i. it is his function to ensure that
laws are faithfully executed.
This is what we called THE
TAKING CARE CLAUSE. It
actually refers to the power or
the obligation of the president to
ensure that laws are faithfully
executed.
2. There are residual powers also that are exercised by the
President.
a) Residual powers
i. are powers that are not assigned expressly to
other branches of the government, either
legislature or judiciary, it is understood that
these powers be exercised by the President
being the Chief Executive.
ii. Part of his residual powers for example is his
power to expel undesirable alien. You cannot
find that in the constitution. But because he is
the Chief Executive, it is understood that that
power to assigned to the president. Or the
power of the president for example to
determine if one should be allowed to enter to
the country especially a foreigner. That is not
expressly provided in the constitution to whom
it should be exercised.
iii. Part of the residual powers of the president is
his immunity from suit. This is jurisprudential.
This is not provided under the Constitution
and the power is granted to the president.
iv. The implication of the power of the president
to immunity of suit means that the president
cannot be sued either official or non-official,
there is no distinction, during his term of office,
for as long as he is the president of the
Philippines, he cannot be sued for something
to do with the discharge of his functions
neither can he be charged for offenses not
related to the performances of his duties.
BAR: can you sue the president for the collection of
money.
Answer: No because he is immune from suit. You may
only file a case against him after his tenure. His term may
not have yet terminated but if he is no longer the president,
then in that case, he may be already sued.
Case in point, Case of Desierto vs Estrada or Estrada vs.
Desierto
where the supreme court considered Estrada as having
resigned even his term has not yet expired yet, he can now
be sued because he is no longer the president. Immunity
applies only during the incumbency of the president.
Another point on immunity, while there is no jurisprudence
with regards to the vice president, WON he is immune or not,
there is decision of the SC expressly saying so, but the fact
that he is removable only through impeachment, likewise, he
cannot be sued for offenses that he may be, in effect,
remove from office, because he can only be removed from
office through impeachment. If you file an administrative or
criminal case against him and eventually he is found guilty in
the administrative case, and the penalty is dismissal, that
would tantamount to circumventing the law that says that the
vice president is removal only through impeachment....
Current Events: On regards to the circumstances that
Binay is in right now, especially in that case where there is
an investigation being conducted by the anti money
laundering. If the theory is conspiracy with people, these
people likewise in conspiracy cannot be investigated in
relation to the vice president because the act of the vice
president is supposedly the act of these conspirators. And if
a case will be filed and will eventually find him guilty, charge
him criminally if it is a criminal charge, but if it is only
forfeiture there is no problem because that pertains only to
property but if has something to do with his term or tenure,
which will in effect have him remove from office done other
than through impeachment, then that would be a violation.
Going back to the Presidents immunity from suit, this
power is non-delegable.
In other words, this immunity from suit cannot be delegated
to his alter ego such as the secretary of the cabinet.
There was a case on this regarding the case of Gloria, the
secretary of education invoked immunity from suit where he
was sued. The SC said that this power of immunity from suit
of the president in non-delegable so it cannot be extended to
his alter ego. It is personal to the president and is therefore
cannot be used as a matter of defense on the part of the
person who may be the subject of suit by the president.
Such as the case of Macasiag wherein Cory Aquino files a
case against Beltran and the publisher of star where they
ask for the dismissal of the case on the ground that the
president is immune from suit and their counterclaim it will
be unfair that they cannot pursue to it because the president
is immune from suit. The SC said that the immunity from suit
of the president is personal to the president, it is up to the
president to declare, assume it or waive it and that cannot be
used by a third party as a matter of defense.
DAVID ET AL VS ARRROYO: SC said you cannot sue
Arroyo because she is immune from suit. That is the reason
why the case was changed to the Executive Secretary.
- The one impleaded is not the president but the
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
executive secretary
No question? BRAYT KAAU NI NGA KLASE! BANTAY HA
ELECTION OF PRESIDENT AND VISE PRESIDENT:
Question: Who canvasses the election returns?
Answer: CONGRESS
Question: Votes needed to proclaim a president?
Answer:JOINT SESSION, VOTING SEPARATELY,
MAJORITY and majority also to break the tie
Question: Does congress have jurisdiction over
pre-proclamation contest?
Answer:
- NO. Take not cause already asked in the bar exam!
If there is any contest as to qualification and return
of the election of P and VP, the election contest shall
be filed in the PRESIDENTIAL ELETORAL
TRIBUNAL which is incidentally the SC.
- Macalintal case: WON it violates the constitution
when the SC assumes jurisdiction as the
presidential electoral tribunal? The Constituion says
that the SC should not exercise quasi-judicial
powers. (June 7, 2011)
- SC: Art 7, SEC 4, par 7 says: Grant of authority of
the SC sitting en banc, this authority is not specified
in the provision, the grant of power does not contain
any limitation on the SCs power. The SCs method
of deciding Presidential and Vice-Presidential
election contest through the PET is derivative
exercise of the prerogative of the Constitutional
provisional, thus the directive for the SC to
promulgate rules for that purpose. It is beyond cavil
that if the SC resolves a P/VP contest, it performs an
essentially judicial power, not just quasi-judicial,
thus not violative of the Constitution.
TERM OF OFFICE IS 6 YEARS WITHOUT REELECTION
- Does this mean he has to finish the whole term
before he can be disqualified to run for reelection?
- CASE: Purmento vs Estrada when Estrada ran
again against Aquino, the issues was not resolved
by the SC, instead it dismissed it. SC said why
disturb the situation? It is water under the bridge!
Moot and academic! Case dismissed!
- why disturb the situation, it will just divide the people.
it is water under the bridge. moot and academic. in
other words, case dismissed as there is no actual
case or controversy.
What was the theory of the lawyer of Estrada - Agabin
When you speak of term of office of six years, to be
disqualified for reelection you must complete the full term. in
the case of Estrada he did not. he only served for 3 years
and was declared to have resigned. since he resigned he did
not finish his term and since there is no prohibition against
the running for reelection if one did not finish his term then
he is qualified. unlike in other provisions of the constitution
for example the resignation of a senator before the
expiration of his term, the law is very clear. his resignation
voluntary renunciation is not considered an interruption of
continuity of his term of office is considered to have fully
served even if he had only served a portion of it. it was not
the same provision with regards to the president, they forgot
all about that. they presumed that tapos na yang 6 six years
finish or un finish considered as completed. and therefore
you are perpetually disqualified. they only presume and they
did not put that in writing. so therefore Estrada must be
correct. they might get to revisit that.
The Presidential Privilege.
this is with reference to the executive privilege of the
president. under the separation of powers the president
cannot be compelled to appear to any legislative inquiries
and disclose information that pertains to the discharge of his
functions and there are many source of executive privilege
1. any matter relating to national security
2. treaty making. that is historically by nature an executive
privilege. it is a classified information. it is a privileged
communications that cannot disclosed to any one.
the only thing that you should remember is that
OPERATIONAL PROXIMITY TEST as part of the privilege
communication of the president.
- this pertains to conversations between the presidents
and his consultants that is pertains to the discharge of the
functions of the president and if disclosed it might undermine
the integrity of his office or affect the performance of his
functions and in which case the president is not compelled to
disclosed it neither the persons to whom he had been
communicating
In other words therefore, as a rule, the cabinet members
need not ask for the approval of the president for consent to
appear in a legislative inquiry and disclose information that
hey know that they are holding considering their position. but
the moment the president invokes executive privilege or the
executive secretary by the authority of the president then
that cabinet member cannot be compelled to disclose such
kind of information.
Powers of the President, executive and administrative
powers in general.
when we speak of executive powers, that insofar as laws are
faithfully executed.
POWERS OF THE PRESIDENT
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
He is the administrator of the laws of the land, that the
law is faithfully executed
1. POWER OF APPOINTMENT
Memorize the appointments that the President can make.
There are 6 enumerated.
But only the first four of these appointments require the
confirmation of the Commission on Appointments
(exclusive, cannot be expanded nor be removed):
Heads of the executive department
Ambassadors, consuls and other public ministers
Officers in the military, ranging from coronel to
general, from captain to admiral
Appointments vested by the Constitution to make.
Ex: Commissioners of COA, CSC & COMELEC and
the regular members of Judicial and Bar Council
TN: President is not precluded from making temporary
appointments for the position and this does not need any
confirmation from the Commission on Appointments
(CA). For as long as the reason being that it is a power
of the President and discretionary to the President and
only for temporary nature, to fill the gap until the
President decides to make a permanent appointment, in
which case it would now require confirmation from CA.
A. AD INTERIM/ RECESS APPOINTMENTS
Those appointment made by the President, even those
(4) enumerated are permanent, effective immediately
upon qualification of the appointee, however the
effectivity of the appointment is limited unless confirmed
or disapproved, and will last only until the adjournment
of the next session of Congress.
B. MIDNIGHT APPOINTMENT (prohibited)
President cannot make an appointment 60 days before
the next regular presidential election.
This applies even to the Judiciary, except
for the Justices of the SC, that was qualified in
the case of Castro vs JBC, Soriano vs JBC,
PhilConsa vs JBC.
Position in the executive branch is only
temporary and if its not filled up right away, it
might endanger public service or public interest.
(not permanent appointment) subject to the
revocation by the next President.
2. POWER OF REMOVAL
It is an implied power to the power of appointment.
The exception of this power is on appointments
where the Constitution prescribes certain method of
separation from service. Example: SC Justices
appointed by President, removable only thru
impeachment; Judges, appointed by President,
cannot be removed by President, they can only be
removed by SC sitting en banc
If the president has the power to appoint, then it is
understood that he has the power to remove. Is it
implied power to power of appointment? Or is it part
of his power of control and discipline?
Now, the power of removal, take note, is implied in
the power to appoint. The exception to this however
are those appointments he make where the
Constitution prescribes certain methods of
separation from public service.
Example. The justices of the Supreme Court are appointed
by the president. But he cannot remove them. They are
removable only through Impeachment.
The judges are appointed by the President, but he cannot
remove them. They can only be removed by the Supreme
Court sitting en banc.
The Ombudsman, is he removable by the president? No, he
is impeachable.
The Deputy Ombudsman, can the president remove him? In
a recent decision, you remember the deputy ombudsman for
the military? He was dismissed by the president if you can
recall. (That happened katong hostage taking). It was
blamed to the ombudsman for the military because of the
delay of the resolution of the case of the policeman. The
deputy ombudsman was investigated, and as expected, he
was dismissed from service by the president. Did you know
that that deputy ombudsman retired with full benefits? He
didnt finish his term, because he was removed. In the
meantime he appealed the decision of the president to the
Supreme Court. The Supreme Court said that the president
could not remove him. Because this would undermine the
independence of the office of the Ombudsman.
Question: Who can remove a deputy ombudsman?
Answer:Only the Ombudsman, through the Committee
of Peers.
-There is another test case to come, and this is the
Special Prosecutor. Remember that Special Prosecutor
who entered into a plea bargaining with General Garcia?
She too was investigated and dismissed from service. It was
prejudicial kuno to the government. The case is now pending
on appeal in the Supreme Court, because the conviction was
affirmed by the Court of Appeals.
Now, why am I talking about the Special Prosecutor?
Because the Special Prosecutor is the same rank as the
deputy ombudsman. If there is a precedence that the deputy
ombudsman cannot be removed by the president, why not
the special prosecutor? The rank of a Special Prosecutor is
the same as a deputy ombudsman. And the office of the
Special Prosecutor is an organic office of the office of the
Ombudsman. But that case is still pending in the Supreme
Court.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
3. DOCTRINE OF QUALIFIED POLITICAL AGENCY,
POWER OF CONTROL AND SUPERVISION
The president, being the head of the executive department,
has control over the different departments but only has
supervision over local government units.
Question: What is the difference between control and
supervision?
Answer:
Control is when the president can change the
decision of a subordinate and replace it with his own
decision, whereas in
Supervision, it is simply overseeing the acts of the
subordinate to make sure that he performs his
duties in accordance with law. He cannot replace
the decision of the said subordinate.
What the president has over the different executive
departments is control while what he has over local
governments is merely supervision. The power of control of
the president is delegated to the different heads of the
department under the PRINCIPLE OF QUALIFIED
POLITICAL AGENCY OR THE ALTER-EGO DOCTRINE.
The act of a secretary of the department is presumed to be
the act of the president, unless it is reprobated, revoked or
repealed by the president.
However, there are certain powers of the President that even
if granted to an alter-ego cannot be ratified or if ratified
cannot be delegated. These are non-delegable powers
which includes:
The declaration of Martial Law and the suspension
of the privilege of the writ of habeas corpus this
power cannot be delegated to the DOJ Secretary.
Pardoning power or Executive Clemency
Treaty-making cannot be delegated to the DFA.
But the power of entering into contract of foreign loans, the
Supreme Court states that this can be delegated to the
Chairman of the BSP because it is not of the same class of
powers as that of declaration of Martial Law, suspension of
the privilege of the writ of habeas corpus, executive
clemency or treaty-making. In which case, the act of the
chairman of the BSP is considered as the act of the
President under the qualified political agency.
Q&A on midnight appointments it is the opinion of
Suarez that midnight appointments does not only refer
to the executive department but also the judiciary. This
was even used by Coronas camp in his defense in the
Corona impeachment.
Judge: That is the Valenzuela case.
What they were saying was that if that was the intention of
the Constitution to apply to the Supreme Court, it should
have stated the same.
Take note that there is a period of 90 days within which
to fill up the vacancy in the Supreme Court. That is
mandatory.
What if there is no president elected, who is going to make
the appointment? That is the reason why they are saying
that, but it is only an opinion. The general sentiment is in the
Valenzuela case.
What the supreme court was saying, favoring the
appointment of Corona, that midnight appointments should
not apply to the Justices of the Supreme Court. The only
reason that they gave was that if it were the intention of the
Constitution, it should have stated that but it was not so
stated. And what must apply is the mandatory requirement of
filling up the vacancy within 90-days from the occurrence of
the vacancy. In this case, they were saying that Arroyo
should have waited for Aquino for it is still within the 90 days
but what if Aquino was not yet installed within 90 days, thats
the danger or the risk that would be taken. The bottom line
there is that it really is not a big deal, only that they cannot
trust each other. They were afraid that because he was an
appointee of Arroyo, they would continue to be loyal to
Arroyo because thats the kind of people that we are. If we
only think about government, loyalty is not to the person who
appointed you. It should be to the institution and the people
in general. If thats our presumption, thats ideal but your
suspicion comes in and that precisely on suspension that
you will not be loyal to the person appointing you, you will
not be given a chance. Thats why they insisted that the
appointment is unconstitutional. But that was settled already.
Regardless of the argument of other authors, you have to
stick to the argument of the sc.
That was the case of Castro vs JVC and Soriano et al.
It applies to the judiciary as well except the justices of the sc.
The discussion is not there but nonetheless, the bottom line
is the appointment of Corona is constitutional although not
explained clearly. So just read and apply literally the case
which sustained the appointment.
Supervision on government ha. It is not control. So we have
the case of Drilon.
In that case involving local governments, there was a
question on an ordinance that was passed and they asked
the opinion of the DOJ Sec on the constitutionality of
ordinance that was passed. DOJ Sec said it was
unconstitutional. At that time, the DOJ Secretary was Drilon.
So question was can that tax ordinance be nullified simply
on the opinion of the DOJ Secretary?
Answer is no because Sec as alter ego of president only has
supervision and not control. To invalidate the tax ordinance,
you go to court and have it nullified. It cannot be by the
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president and the secretary because President only has
supervision over the lgu and not control.
Going back to the control of president over the executive
department part of which is the power of reorganization for
efficiency and economy.
That has always been asked in the bar exam as to the power
of pres to reorganize.
BAR: Does this include the power to abolish or to
create offices or consolidate offices in the executive
department?
Answer: The president for as long as this will not entail
appropriation of public funds, this is part of the power of the
president to reorganize the executive department because
he has control and supervision over the executive
department. Thus the president may create office like the
creation of the Truth Commisison.
Buklod ng Kawani EIIB vs Zamora.
Sc sustained the validity of the power of the president
because according to sc, while it is true that this is basically
the power of congress because this will require the
appropriation of public funds, but in the creation of the truth
commission, no funds will be separately appropriated for that
purpose because it will be taken from the budget of the
president. Then as part of reorganization to help in ensuring
that laws are faithfully executed by having investigatory body
to implement the laws specially on draft laws then definitely,
president has the power. If in activating an offense to the
extent on abolishing it, you remember the EIIB, Economic
Intelligence Investigatory Board, the employees here are
transferred to customs. The others here were transferred to
NBI. Walay nabilin sa EIIB. Katong wla na absorb like kato
wala na transfer sa customs or nbi, effectively, were
removed from office kay wa naman silay trabaho and so they
complained by saying that the president cannot do that.
What was the justification? The president has the power to
reorganize the office even to the extent of inactivating the
office, the president definitely can do that as part of his
control over the executive department. This is Buklod ng
Kawani EIIB vs Zamora.
The General Rule always has been the power to
abolish public office is lodged in the legislature.
The Exception is that as far bureaus, agencies or
offices in the executive department are concerned, the
presidents power of control may justify him to inactivate
the function of a particular office or certain laws may grant
him the authority to carry out reorganization measures. The
chief executive under our laws has the containing authority
to reorganize the administrative structure of the office of the
president. And a recent decision of the SC regarding that
matter,
Take note of the case of Pichay. Junior (?) vs the Office
of the Executive Secretary for Legal Affairs. This was
decided on July 24, 2012 and came out in the bar exam.
Do you remember Pichay who was the chairman of LUA? He
was investigated by the Office of the President through the
Deputy Executive Secretary for Legal Affairs. That office was
abolished and the powers were transferred to the Office of
the Executive Secretary and he complained. What did SC
say on the matter? Gi abolish ang presidential anti-graft
commission (PAGC, office which investigates high ranking
chief executives, dili sa Ombudsman, mu-agi sa PAGC,
concurrent jurisdiction with Ombudsman. Most Cases are
given to PAGC to investigate).
Pichay was then investigated by PAGC, but it was abolished.
It was replaced by the Deputy Executive Secretary for Legal
Affairs under Ochoa. Pichay complained. SC said Section 31
of E.O. No. 292 otherwise known as the Administrative Code
of 1987 vests in the president the continuing authority to
reorganize the offices under him to achieve efficiency,
economy and simplicity. The Office of the President must, in
order to remain effective and efficient, be capable of being
shaped and reshaped by the President in the manner he
deems fit to carry out his directives and policies. Clearly, the
abolition of the PAGC and the transfer of its functions to a
division specifically created within the office of the Deputy
Executive Secretary for Legal Affairs is properly within the
prerogative of the President under his continuing delegated
legislative authority to reorganize his own office. Since both
of these offices belong the the president proper, then the
reorganization by abolishing the PAGC and transferring its
functions to the Deputy Executive Secretary for Legal Affairs
is allowable under Section 31.
Local governments, SUPERVISION ONLY.
Let us now go to the other powers of the president.
4. This is insofar as MILITARY POWERS.
Question: How is this exercised by the president?
Answer: The president is the commander-in-chief of
the AFP and as such, he is the nominal head of the AFP. He
reviews the decisions of the court marshalls.
It is in the strict sense, a court a military court. All
decisions are not appealable to the Supreme Court but to
the President in his capacity as the commander-in-chief of
the AFP.
What the SC was saying in that case involving
Trillanes and the others who have been prosecuted or
heard before the Court Marshall, the SC sustained the
validity by saying that its the only way by which you can
make the military accountable to the civilian authority at all
times because the decisions of the Court Marshall are
subject to the review of the highest supreme authority who is
the commander-in-chief of the AFP.
Part of the military powers of the President is that
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1. he can declare Martial Law and
2. suspend the privilege of the writ of habeas corpus.
3. Another power is the CALLING OUT OF ARMED
FORCES to assist them whenever it becomes necessary
in order to prevent or suppress lawlessness, rebellion
or invasion.
Take note of the calling out power of the President as
compared to the declaration of Martial Law.
Calling out is not subject to review.
As to the grounds, only discretionary on the President
whenever it becomes necessary.
In so far with the declaration of Martial Law and the
suspension of the writ of habeas corpus,
only when there is an actual rebellion or invasion
and public safety requires the declaration or the
suspension of the privilege of the writ of habeas
corpus.
Question: Is the calling out of the AFP subject to
revocation by Congress? How about declaration and
suspension of ML and WHC,respectively?
Answer: No. A declaration of Martial Law and the
suspension of the privilege, yes, it is subject to revocation
and that would require only majority votes of the members of
Congress in a joint session, voting jointly.
Question: Can the calling out power be delegated to
the local governments?
Take note of the case of Cubayan vs. Tan (July 3,
2012).This was also asked in the Bar Exam.
The governor of the Maguindanao, the aftermath of the
massacre in Maguindanao then asked the assistance of the
military to put up checkpoints so that anyone who enters and
exits from the province will have to go through the
checkpoints. He justified by saying that he has military
powers including the calling out of the military. SC said
that the calling out powers contemplated under the
Constitution is exclusive to the President of the
Philippines as Commander-in-Chief. Thus, a provincial
governor is not endowed with the power to call upon the
Armed Forces. Only the president is authorized to exercise
emergency powers as provided under Sec. 43, Article 6 and
the calling out powers under Sec. 7, Art. 7 of the 1987
Constitution. While the President is exercises full supervision
and control of the police, local chief executives, such as a
provincial governor, only exercise operational supervision
over the police and may exercise control only in the
operations. As discussed in the deliberation of the ConCon,
the President has the discretion to call a military when, in his
judgment, it is necessary to do so in order to prevent
lawlessness, violence, invasion or rebellion.
Question: Can the president do any reorganization in
the BIR that may run counter to the law?
Answer:No, it has to be in accordance with the law.
Also, take note of Martial Law and the suspension of the
privilege of the writ of habeas corpus as to the limitations.
That will be discussed again in the Bill of Rights.
5. PARDONING POWER
Executive Clemency- this is NOT DELEGABLE. This is
discretionary of the president if exercised. Especially when
we talk about the ordinary pardon. We are not talking here
about the amnesty. This is FINAL and UNAPPELABLE
.
This relevant because of the controversy regarding ERAP.
There's a question whether it was absolute or conditional.
The question now is that did it obliterate his public
disqualification to run for office despite being convicted for a
grave offense where the penalty was Reclusion Perpetua.
He was granted pardon, but did it included the accessory
penalty of perpetual disqualification?
SC recently, this year only, that the pardon granted by
Arroyo was VALID(wala gi mention ni ma'am unsa na case).
Going back, Executive Clemency has different types:
1. Ordinary Pardon
2. Amnesty
3. Commutation
4. Reprieve
5. Remission of Fines and Forfeitures
I. Pardon-
a. Ordinary Pardon could be either ABSOLUTE or
QUALIFIED(or conditional).
Absolute Pardon- there are no qualifications. If granted, it
NEED NOT BE ACCEPTED by the pardonee. The person
should be CONVICTED and conviction should be FINAL
already. So it's granted only after final conviction. If there's a
pending MR or pending appeal, he is not qualified.
Take note ha? Theres conviction and conviction is final
already. So meaning, this is granted only after final
conviction. If there is a pending MR or a pending appeal, he
is not qualified as to the grant of pardon.
On the other hand, there is conditional pardon.
This has to be accepted because it could be more
burdensome. Lets say for example there is that condition
that the convict could not anymore go to a casino. That could
be more burdensome for you. Id rather in be in jail. So there
is a need for it to be accepted.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
In the case of Estrada, he was granted an absolute pardon.
Estrada filed a motion for reconsideration of his conviction.
Do you know that guys? According to rumormongers,
Estrada was in Taytay. It was Lambino who went to Estrada
and offered pardon. Thats why Estrada, despite the fact that
it was Arroyo who caused his conviction, is still very grateful
to Arroyo. Lambino, after conviction, went to Estrada and
offered absolute pardon. Take note of what happened to the
MR. So they were saying, puro ra line of argument, was
there acceptance when there is a pending MR? And
therefore the conviction was not yet final. And even
assuming that the MR was already resolved, the judgment
has already become final and there was acceptance, it was
a grave abuse of discretion on the part of the President
granting pardon after spending millions of money and years
of waiting for the conviction, only to be granted pardon a day
after conviction. Do you understand? That was the line of
argument.
There is no argument that it is discretionary on the part of the
President. But was there a grave abuse of discretion
exercised here amounting to lack or excess of jurisdiction?
Supreme Court said so otherwise. Its already final and
executory. Case dismissed. Pardon was absolute and
therefore it removes also the public disqualification. Do you
understand? Sabot or wa kasabot?
Pero truly ha? Millions of money were spent for the trial.
Bringing him alone to the Sandiganbayan, thats thousands
of money. Because he lived in Taytay, he was detained in
Taytay. He was treated like an ex-head of state, not an
ordinary felon like what happened Arroyo now. Hes so
grateful. Naa pay swimming pool. Suroy-suroy pa siya. It is
his rest house. He is very familiar. Bisitahon pa siya
everytime. He ate good food. Asa man ka ana?
Question: Anyhow, the question is there. If you have
already completed serving your sentence, is pardon still
relevant?
Answer: The effect of pardon is that it does not
obliterate your criminal records. It stays. Only that, you will
be relieve of the remaining effects of the sentence imposed
on you. You will be relieved of any further infliction of
punishment. Say for example, you have 40 years and on
your 12th year, you were granted pardon. Once granted
pardon you need not serve the remainder. You already
served 40 years and then you were granted pardon. What
for? I have served for 40 years and you grant me pardon
only now? It is still relevant because you can at least still
serve as barangay captain? Because it will what? It will
remove all accessory penalties like civil interdiction.
You will be restored to your civil rights. You can vote, you
can now manage your own property and exercise parental
authority. So its still relevant so it can still be grante
Civil rights are restored. You can now manage your own
properties. So its still relevant. It can still be granted. And if
granted that is not subject to appeal. Final and executory;
that was the Case Of Flores Vs Drillon.
Probation is granted by the court upon recommendation of
the probations office where a person is convicted of a crime
the penalty of which is 6 years or less.
Parole is different. After serving the minimum of the
sentence. Pono na kayo ang prisohan so ge pa gawas osa
ka. This is jail decongestion. But youre still in the custody of
law which means if you violate any of the conditions of your
parole, you will be arrested and sent to prison again to serve
the rest of your sentence. Parole is granted by the
president, but it has a different effect compared to pardon
where you are relieved of further infliction of the punishment.
Amnesty applies only to a group of people charged with
political offense. This can be granted even before conviction.
So this could be granted before or after conviction. And it
need not be final. Whats the effect when amnesty is granted?
It would be as if you did not commit any crime but there is a
catch. You have to plead guilty first before you are granted
amnesty. This has to be approved by the majority of the
members of congress.
I do not know how they phrased the admission of guilt of
Trilanes when he was granted amnesty. It was amnesty not
pardon because he was not convicted. So it was as if he
never committed the crime.
Reprieved is the postponement of the execution of penalty.
6. DIPLOMATIC POWERahh bryt namo ana. Just take
note the case of Pimentel vs the Executive secretary.
That the ratification and treaty making is the exclusive power
of the President. Even the concurrence of the senate will not
compel the president from entering into any treaty or ratifying
a treaty. BUT to bind the Republic of the Philippines, the
president will need 2/3 votes of Senate.
Also take note of the case of BAYAN vs ZAMORA, where
SC said it is inconsequential whether US
treats the VFA as an executive agreement (because under
international law, an executive agreement is as binding as a
treaty and Congress is powerless to invade it) nevertheless,
the VFA was concurred to by the senate. There were
demands, especially by Senator Miriam
-even if the United States treats the VFA only as an
executive agreement because, under international law, an
executive agreement is as binding as a treaty.
-Into the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it.
-Nonetheless, the VFA was concurred by the congress.
so thats why they are demanding, especially Sen. Miriam
Santiago, that the EDCA be submitted to the senate for their
concurrence because in effect it may be considered as like
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that of a VFA (because the constitution, as a general rule, is
against the entry of foreign military troops in the country).
Controversy regarding EDCA: The role of senate in relation
to the negotiation of the EDCA one of the points raised is
that it is unconstitutional.
Negotiation of Treaty is an executive privileged that cannot
be interfered with by congress. The president is never
compelled to disclose information pertaining to treaty
negotiation.
7. Power of the President TO APPROPRIATE
MEASURES/APPROPRIATION; Role of the President:
-the president may veto, either:
1. veto per item only; or
2. entirely veto an appropriation bill.
-the presidents role is in the budget. The budget is prepared
by the president; submitted to congress, and the
appropriation is based on the budget submitted. Congress
cannot increase the budget submitted but can decrease.
And the president now has the power to execute the budget,
which should not be interfered by the congress through the
PDAF (Belgica case).
-the president cannot disburse funds and appropriate funds
to programs and activities of government that are not
mentioned in the GAA, otherwise, it would be a violation on
the principle of separation of powers (Arroyo case).
The delegated powers to the President; different power of
the president; veto powers of the president (tackled during
the discussion on the overriding power of congress)
Executive Impoundment
-there is an appropriation of funds for a government
project, as so stated in the GAA, then the person decides not
to spend the money.
- the constitution is silent on this matter.
- Pres. Aquino(mother) did not spend the money
allotted to CAFGO. The CAFGO died its natural deaththey
joined the abusayaf (wala na man makaon), no more
operational expenses because funds were not spend and
instead considered as savings. Impound the money> pulled
the money (as part of DAP)> distribute the money for
projects not mentioned in the GAA.
Residual Powers (discussed already)
RULES OF SUCCESSION
When is there vacancy?
-At the beginning of tenure:
when there is no president elected or when there is a tie or
failure of election or no president has been choose, in which
case, the vice-president shall act on it unless the vacancy
becomes permanent and then, the vice-president becomes
the new president. If no vice-president, the president of the
senate will act as president. If no president of the senate, the
speaker of the house of representative will act as president.
If no speaker of the house of representative, congress must
immediately convene and pass a law that will provide for the
manner of succession in the meantime.
-During tenure:
When there is vacancy in both office, as the president and
the vice president: Call for a special election. This is
permanent.
During Incumbency:
Permanent Vacancies: 4 ways to have a permanent
vacancy:
1. Resignation
2. Death
3. Impeachment
4. Permanent Incapacity.
Resignation
SC said, dili na kinahanglan formal, it could be
1. Written or
2. Verbal.
For as long as, there is relinquishment or abandonment of
the powers of the office.
In other words, the acts of the appointee, such as the
president, the elected president, must correspond to his
intention to relinquish the powers. And so thats what
happened to Estrada when the SC declared him to have
resigned. He did not write any paper or document to
manifest his resignation. What did he do? He left
Malacanang. And made statement to the effect I am
stepping down as the Pres of the Republic. That was the
statement taken from his announcement. And there was the
diary of Angara saying that the pres intimated to him that he
is going to resign and on the basis of the circumstances, he
was considered resigned.
On The Matter Of Impeachment. Removal Of An
Impeachable Official.
Permanent Incapacity.
Panganiban was saying that it should not be limited to
physical incapacity as well as functional incapacity. For the
president is suppose to be supported by his cabinet or by
the local chief executives more importantly the military, then
theres no point of remaining in office. Get out. Then you are
removed from office.
What happens when there is Permanent vacancy?
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The vice president, by operation of law, automatically
becomes the president. That was the case of Arroyo.
There was a question on the legitimacy of Arroyo ascending
to the presidency because Estrada was considered resigned.
Who was the vice pres? Naturally, she was. By operation of
law, became the president. They were surprised because
there were talks about, ang iyang pag swear in diay unta ato
kay Chief Justice Davide, ang iyang Oath of Office, was to
be Acting Pres. Unya ka karon as Pres of the Republic man.
Pagka kurata. Di na mausab kay there were too many
people watching. That was the story behind. Nakuratan kay
grand deception kuno.
Temporary Disability
May occur in the Office of the President when he is sick, on
vacation, he may go on leave. So he cannot perform
functions of the office. What will happen? Automatically, the
V-President shall act as the President.
Another way to create temporary disability is when the
majority of the cabinet must report to Congress that our
President is insane, automatically; the V-President shall act.
But the President can always refute that. This is a ridiculous
provision, because it says that Congress need not decide yet
on that first report, they will decide the second time the
cabinet reports this. If I were the president, I would never
give them a chance, I am the President, I appointed you, I
could always remove you from office before you could report
the second time. That is crazy, stupid jd kaau ni nga
provision :D if there is a second report, it only needs majority
(of the cabinet), then Congress must right away decide, and
to consider the President is under Temporary Disability it will
require 2/3 votes of the members of Congress in a joint
session voting separately. Case: Estrada saying that he did
not resign, I was only on leave. I informed the Congress
he is saying that he is only under temporary disability, but
the SC did not believe that.
JUNE 26, 2015
JUDICIAL DEPARTMENT
Judicial Power
The original concept of judicial power is only to settle
disputes involving legal controversies wherein there is a
need to apply the law or the provisions of the constitution. In
other words, the function of the courts is only to act as the
referee.
That has been changed under the 1987 constitution because
judicial power has been expanded and that includes the
power of judicial review, that is the power to determine
whether there has been a grave abuse of discretion
amounting to lack or in excess of jurisdiction. Generally, the
courts shall have jurisdiction only over questions that are
justiciable. Because of the expanded jurisdiction granted to
the courts, even political questions or questions that may
pertained to the political discretion or discretionary power of
the other branches of the legislative and executive, may now
be looked into by the SC in the light of exercising judicial
review even if the power is expressly granted to these 2
other branches of the govt if only to determine if such
discretionary power has been gravely abused amounting to
lack or excess of jurisdiction.
6
Case in point, landmark case of Marcos vs Manglapus.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a
vote of eight (8) to seven (7), dismissed the petition, after
finding that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former
President Marcos and his family at the present time and
under present circumstances pose a threat to national
interest and welfare and in prohibiting their return to the
Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President
Aquino said:
In the interest of the safety of those who will
take the death of Mr. Marcos in widely and passionately
conflicting ways, and for the tranquility of the state and
order of society, the remains of Ferdinand E. Marcos will
not be allowed to be brought to our country until such time
as the government, be it under this administration or the
succeeding one, shall otherwise decide. [Motion for
Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed
by petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from
returning to the Philippines is to deny them not only the
inherent right of citizens to return to their country of birth but
also the protection of the Constitution and all of the rights
guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own
country; if she has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of
former President Marcos. Thus, petitioners prayed that the
Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R.
Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee
M. Manotoc, Tommy Manotoc and Gregorio Araneta to
return to the Philippines, and enjoin respondents from
implementing President Aquino's decision to bar the return
of the remains of Mr. Marcos, and the other petitioners, to
the Philippines.
Commenting on the motion for reconsideration, the Solicitor
General argued that the motion for reconsideration is moot
6
G.R. No. 88211 October 27, 1989
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
and academic as to the deceased Mr. Marcos. Moreover, he
asserts that "the 'formal' rights being invoked by the
Marcoses under the label 'right to return', including the label
'return of Marcos' remains, is in reality or substance a 'right'
to destabilize the country, a 'right' to hide the Marcoses'
incessant shadowy orchestrated efforts at destabilization."
[Comment, p. 29.] Thus, he prays that the Motion for
Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for
reconsideration, the burden is upon the movants, petitioner
herein, to show that there are compelling reasons to
reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the
motion for reconsideration, the Court is of the view that no
compelling reasons have been established by petitioners to
warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a
supervening event, has not changed the factual scenario
under which the Court's decision was rendered. The threats
to the government, to which the return of the Marcoses has
been viewed to provide a catalytic effect, have not been
shown to have ceased. On the contrary, instead of erasing
fears as to the destabilization that will be caused by the
return of the Marcoses, Mrs. Marcos reinforced the basis for
the decision to bar their return when she called President
Aquino "illegal," claiming that it is Mr. Marcos, not Mrs.
Aquino, who is the "legal" President of the Philippines, and
declared that the matter "should be brought to all the courts
of the world." [Comment, p. 1; Philippine Star, October 4,
1989.]
3. 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.
That the President has powers other than those expressly
stated in the Constitution is nothing new. This is recognized
under the U.S. Constitution from which we have patterned
the distribution of governmental powers among three (3)
separate branches.
Article II, [section] 1, provides that "The Executive
Power shall be vested in a President of the United
States of America." In Alexander Hamilton's widely
accepted view, this statement cannot be read as
mere shorthand for the specific executive
authorizations that follow it in [sections] 2 and 3.
Hamilton stressed the difference between the
sweeping language of article II, section 1, and the
conditional language of article I, [section] 1: "All
legislative Powers herein granted shall be vested
in a Congress of the United States . . ." Hamilton
submitted that "[t]he [article III enumeration [in
sections 2 and 31 ought therefore to be
considered, as intended merely to specify the
principal articles implied in the definition of
execution power; leaving the rest to flow from the
general grant of that power, interpreted in
confomity with other parts of the Constitution...
In Myers v. United States, the Supreme Court
accepted Hamilton's proposition, concluding that
the federal executive, unlike the Congress, could
exercise power from sources not enumerated, so
long as not forbidden by the constitutional text: the
executive power was given in general terms,
strengthened by specific terms where emphasis
was regarded as appropriate, and was limited by
direct expressions where limitation was
needed. . ." The language of Chief Justice Taft in
Myers makes clear that the constitutional concept
of inherent power is not a synonym for power
without limit; rather, the concept suggests only that
not all powers granted in the Constitution are
themselves exhausted by internal enumeration, so
that, within a sphere properly regarded as one of
"executive' power, authority is implied unless there
or elsewhere expressly limited. [TRIBE,
AMERICAN CONSTITUTIONAL LAW 158-159
(1978).]
And neither can we subscribe to the view that a recognition
of the President's implied or residual powers is tantamount
to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the
President under the Constitution should not be confused
with the power of the President under the 1973 Constitution
to legislate pursuant to Amendment No. 6 which provides:
Whenever in the judgment of the President (Prime
Minister), there exists a grave emergency or a threat
or imminence thereof, or whenever the interim
Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any
matter for any reason that in his judgment requires
immediate action, he may, in order to meet the
exigency, issue the necessary decrees, orders, or
letters of instruction, which shall form part of the law
of the land.
There is no similarity between the residual powers of the
President under the 1987 Constitution and the power of the
President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to an
express grant of power. It is not implied. Then, Amendment
No. 6 refers to a grant to the President of the specific power
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of legislation.
4. Among the duties of the President under the
Constitution, in compliance with his (or her) oath of office, is
to protect and promote the interest and welfare of the
people. Her decision to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the present time
and under present circumstances is in compliance with this
bounden duty. In the absence of a clear showing that she
had acted with arbitrariness or with grave abuse of discretion
in arriving at this decision, the Court will not enjoin the
implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for
Reconsideration for lack of merit."
This has been the source of Judical Activism and complaints
from the co-equal branches of the govt. such as their
complaints about including into the discretionary powers of
the co-equal branches such termed as overreaching and
thus the legislature even warned the SC from exercising
judicial restraint.
You must understand these 2 terms - Overreaching And
Judicial Restraint.
These all pertain to powers that are expressly granted by the
constitution to the 2 other branches of the government. You
read the case of Bilgica, et al vs Executive Secretary
Ochoa Nov. 19. 2013, discussion on political question.
B. Matters of Policy: the Political Question Doctrine.7
The "limitation on the power of judicial review to actual cases
and controversies carries the assurance that "the courts will
not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a
restatement of the political question doctrine which, under
the classic formulation of Baker v. Carr,139applies when there
is found, among others, "a textually demonstrable
constitutional commitment of the issue to a coordinate
political department," "a lack of judicially discoverable and
manageable standards for resolving it" or "the impossibility
of deciding without an initial policy determination of a kind
clearly for non- judicial discretion." Cast against this light,
respondents submit that the "the political branches are in the
best position not only to perform budget-related reforms but
also to do them in response to the specific demands of their
constituents" and, as such, "urge the Court not to impose a
solution at this stage."140
7
Taken from the case G.R. No. 208566
The Court must deny respondents submission.
Suffice it to state that the issues raised before the Court do
not present political but legal questions which are within its
province to resolve. A political question refers to "those
questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the
Legislature or executive branch of the Government. It is
concerned with issues dependent upon the wisdom, not
legality, of a particular measure."141 The intrinsic
constitutionality of the "Pork Barrel System" is not an issue
dependent upon the wisdom of the political branches of
government but rather a legal one which the Constitution
itself has commanded the Court to act upon. Scrutinizing the
contours of the system along constitutional lines is a task
that the political branches of government are incapable of
rendering precisely because it is an exercise of judicial
power. More importantly, the present Constitution has not
only vested the Judiciary the right to exercise judicial power
but essentially makes it a duty to proceed therewith. Section
1, Article VIII of the 1987 Constitution cannot be any clearer:
"The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law. It
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." In Estrada v. Desierto,142
the expanded concept of judicial power under the 1987
Constitution and its effect on the political question doctrine
was explained as follows:143
To a great degree, the 1987 Constitution has narrowed the
reach of the political question doctrine when it expanded the
power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable
and enforceable but also 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 government. Heretofore, the judiciary has
focused on the "thou shalt not's" of the Constitution directed
against the exercise of its jurisdiction. With the new
provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of government. Clearly,
the new provision did not just grant the Court power of doing
nothing. x x x (Emphases supplied)
It must also be borne in mind that when the judiciary
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mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; does not
in reality nullify or invalidate an act of the legislature or the
executive, but only asserts the solemn and sacred obligation
assigned to it by the Constitution."144 To a great extent, the
Court is laudably cognizant of the reforms undertaken by its
co-equal branches of government. But it is by constitutional
force that the Court must faithfully perform its duty.
Ultimately, it is the Courts avowed intention that a resolution
of these cases would not arrest or in any manner impede the
endeavors of the two other branches but, in fact, help ensure
that the pillars of change are erected on firm constitutional
grounds. After all, it is in the best interest of the people that
each great branch of government, within its own sphere,
contributes its share towards achieving a holistic and
genuine solution to the problems of society. For all these
reasons, the Court cannot heed respondents plea for
judicial restraint.
Political questions are beyond the ambit of judicial inquiry,
meaning the courts, particularly the SC, has no jurisdiction to
review questions that are political in nature because such
questions are supposedly to be answered by the people in
their sovereign capacity which have the people has
delegated to their political representatives such as congress
or the chief executive.
Take note, the limitation on the power of judicial review to
acts to cases in courts carries the assurance that courts will
not intrude into areas committed to other branches of the
government. Essentially the foregoing limitation is a
reinstatement of the political question that Ching?? which
under the classic formulation of paper vs CAR(?) applies
when there is found among others a textually demonstrable
constitutional commitment of the issue to a coordinate
political department such as the executive and legislative
department. A lack of judicially discoverable and
manageable standards for resolving it or the impossibility of
deciding without an initial policy determination of a type
clearly for non-judicial discretion.
Tanada vs Cuenco
SC held that political questions refer to those questions
which under the constitution are to be decided by the people
in their sovereign capacity or in regard to which full
discretionary authority has been delegated to the executive
or legislative branch of the government.It is concerned with
issues independent upon on wisdom, not on legality of a
particular measure.
For more discussion regarding overreaching, read the cases
of
1. Bayan vs executive secretary
Bayan Muna v. Alberto Romulo (in his capacity as
executive secretary), 1 February 2011
On 1 February 2011, the Supreme Court of
the Philippines dismissed a claim by Bayan
Muna (the petitioner), a duly registered
party-list group set up to represent the
marginalized sectors of society, which sought
to nullify the Non-Surrender Agreement (the
Agreement) concluded between the Republic
of the Philippines and the United States of
America.
According to the petitioner, the Agreement
contravened the obligations of the Philippines
under the Rome Statute of the International
Criminal Court (ICC), which had been signed
(but not ratified) by the Philippines. The
petitioner also argued that the Agreement was
void ab initio because it created obligations
that were immoral or that were contrary to
universally recognized principals of
international
law.
Regarding the petitioners first argument, the
Supreme Court concluded that the Agreement
did not undermine or contravene the Rome
Statute. On the contrary, the Court held that
the Agreement and the Rome Statute
complemented each other and thus
conformed to the ICCs principle of
complementarity. The Court added that:
it is abundantly clear to us that the Rome
Statute expressly recognizes the primary
jurisdiction of states, like the RP [Republic of
the Philippines], over serious crimes
committed within their respective borders, the
complementary jurisdiction of the ICC coming
into play only when the signatory states are
unwilling or unable to prosecute. (p. 27)
Regarding the petitioners second argument,
namely that the Agreement was immoral
because it leaves criminals immune from
responsibility for unimaginable atrocities that
deeply shock the conscience of humanity (p.
32), the Court also disagreed. It stated that
the Agreement is an assertion by the
Philippines of its desire to try and punish
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crimes under its national law and that it is a
recognition of the primacy and competence of
the countrys judiciary to try offenses under its
national criminal laws and dispense justice
fairly and judiciously (p. 33). The Court did
not concur with the petitioners opinion that
the Agreement would allow Americans and
Filipinos to commit grave international crimes
with impunity. The Court explained that
people who may have committed acts
penalized under the Rome Statute can be
prosecuted and punished in the Philippines or
in the US; or with the consent of the RP
[Republic of the Philippines] or the US, before
the ICC, assuming that all the formalities
necessary to bind both countries to the Rome
Statute have been met.
It also stated:
With the view we take of things, there is
nothing immoral or violative of international
law concepts in the act of the Philippines of
assuming criminal jurisdiction pursuant to the
Non-Surrender Agreement over an offense
considered criminal by both Philippine laws
and the Rome Statute. (p. 34).
2. Pimentel vs executive secretary
SENATOR AQUILINO PIMENTEL JR., et al.
v. OFFICE OF THE EXECUTIVE
SECRETARY G.R. No. 158088, 6 July 2005,
En Banc (Puno, J.)
The signature does not signify the final consent
of the state to the treaty. It is the ratification that
binds the state to the provisions thereof. The
Rome Statute requires that the signature of the
representatives of the states be subject to
ratification, acceptance or approval of the
signatory states. By ratifying a treaty signed in
its behalf, a state expresses its willingness to
be bound by the provisions of such treaty. After
the treaty is signed by the states
representative, the President is burdened with
the responsibility and the duty to carefully study
the contents of the treaty and ensure that they
are not inimical to the interest of the state and
its people. Thus, the President has the
discretion even after the signing of the treaty by
the Philippine representative whether or not to
ratify the same.
This is a petition for mandamus filed by
petitioners to compel the Office of the
Executive Secretary and the Department of
Foreign Affairs to transmit the signed copy of
the Rome Statute of the International Criminal
Court to the Senate of the Philippines for its
concurrence in accordance with Section 21,
Article VII of the 1987 Constitution.
The Rome Statute, which established the
International Criminal Court shall have the
power to exercise its jurisdiction over persons
for the most serious crimes of international
concern xxx and shall be complementary to the
national criminal jurisdictions. Its jurisdiction
covers the crime of genocide, crimes against
humanity, war crimes and the crime of
aggression as defined in the Statute. The
Philippines signed the Statute on December
28, 2000 through Charge d Affairs Enrique A.
Manalo of the Philippine Mission to the United
Nations. Its provisions, however, require that it
be subject to ratification, acceptance or
approval of the signatory states.
Petitioners contend that it is the duty of the
executive department to transmit the signed
copy of the Rome Statute to the Senate to
allow it to exercise its discretion with respect to
ratification of treaties. Petitioners submit that it
is a ministerial duty on the part of the Philippine
Government to ratify the Rome Statute under
treaty law and customary international law.
They invoke the Vienna Convention on the Law
of Treaties enjoining the states to refrain from
acts which would defeat the object and
purpose of a treaty when they have signed the
treaty prior to ratification unless they have
made their intention clear not to become
parties to the treaty. The Office of the Solicitor
General questioned the standing of the
petitioners to file the instant suit and contended
that the petition at bar violates the rule on
hierarchy of courts. Respondents argue that
the executive department has no duty to
transmit the Rome Statute to the Senate for
concurrence.
ISSUE: Whether or not the executive
department has the ministerial duty to transmit
the Rome Statute to the Senate for
concurrence
HELD: Petition is dismissed
The Executive Secretary and the Department
of Foreign Affairs have no ministerial duty to
transmit to the Senate the copy of the Rome
Statute signed by a member of the Philippine
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Mission to the United Nations even without the
signature of the President.
In our system of government, the President,
being the head of state, is regarded as the sole
organ and authority in external relations and is
the countrys sole representative with foreign
nations. As the chief architect of foreign policy,
the President acts as the countrys mouthpiece
with respect to international affairs. Hence, the
President is vested with the authority to deal
with foreign states and governments, extend or
withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise
transact the business of foreign relations. In the
realm of treaty making, the President has the
sole authority to negotiate with other states.
Nonetheless, while the President has the sole
authority to negotiate and enter into treaties,
the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all
the members of the Senate for the validity of
the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides
that no treaty or international agreement shall
be valid and effective unless concurred in by at
least two-thirds of all the Members of the
Senate. The participation of the legislative
branch in the treaty-making process was
deemed essential to provide a check on the
executive in the field of foreign relations. By
requiring the concurrence of the legislature in
the treaties entered into by the President, the
Constitution ensures a healthy system of
checks and balance necessary in the nations
pursuit of political maturity and growth.
The Supreme Court disagrees with the
petitioners interpretation of Section 21, Article
VII of the 1987 Constitution to mean that the
power to ratify treaties belongs to the Senate.
The signing of the treaty and the ratification are
two separate and distinct steps in the
treaty-making process. The signature is
primarily intended as a means of authenticating
the instrument and as a symbol of the good
faith of the parties, which is usually performed
by the states authorized representative in the
diplomatic mission. Ratification, on the other
hand, is the formal act by which a state
confirms and accepts the provisions of a treaty
concluded by its representative. It is generally
held to be an executive act, undertaken by the
head of the state or of the government.
EO No. 459 issued by Ramos provides the
guidelines in the negotiation of international
agreements and its ratification. It mandates
that after the treaty has been signed by the
Philippine representative, the same shall be
transmitted to the Department of Foreign
Affairs. The Department of Foreign Affairs shall
then prepare the ratification papers and
forward the signed copy of the treaty to the
President for ratification. After the President
has ratified the treaty, the Department of
Foreign Affairs shall submit the same to the
Senate for concurrence. Upon receipt of the
concurrence of the Senate, the Department of
Foreign Affairs shall comply with the provisions
of the treaty to render it effective.
The signature does not signify the final consent
of the state to the treaty. It is the ratification that
binds the state to the provisions thereof. In fact,
the Rome Statute itself requires that the
signature of the representatives of the states
be subject to ratification, acceptance or
approval of the signatory states. Ratification is
the act by which the provisions of a treaty are
formally confirmed and approved by a State.
By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the
provisions of such treaty. After the treaty is
signed by the states representative, the
President, being accountable to the people, is
burdened with the responsibility and the duty to
carefully study the contents of the treaty and
ensure that they are not inimical to the interest
of the state and its people. Thus, the President
has the discretion even after the signing of the
treaty by the Philippine representative whether
or not to ratify the same.
The Vienna Convention on the Law of Treaties
does not contemplate to defeat or even restrain
this power of the head of states. It has been
held that a state has no legal or even moral
duty to ratify a treaty, which has been signed
by its plenipotentiaries. There is no legal
obligation to ratify a treaty, but the refusal
must be based on substantial ground.
Otherwise, the other state would be justified in
taking offense.
The power to ratify is vested in the President,
subject to the concurrence of the Senate. The
role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of
the President to refuse to submit a treaty to the
Senate or, having secured its consent for its
ratification, refuse to ratify it. Although the
refusal of a state to ratify a treaty which has
been signed in its behalf is a serious step that
should not be taken lightly, such decision is
within the competence of the President alone,
which cannot be encroached by this Court via a
writ of mandamus. This Court has no
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jurisdiction over actions seeking to enjoin the
President in the performance of his official
duties. The Court, therefore, cannot issue the
writ of mandamus prayed for by the petitioners
as it is beyond its jurisdiction to compel the
executive branch of the government to transmit
the signed text of Rome Statute to the Senate.
Where it is incorporated in our legal system through these
cases, its overreaching principle is perhaps best articulated
in the dissenting of justice puno8, please read that.
Power of Judicial Review
This is one way of checking the exercise of the discretionary
powers of the executive and legislative branches of the
government. Because however of the maintenance of the
separation of powers where you have to maintain the
independence of the three branches of the government, this
judicial review power of the courts particularly that of the
supreme court may only be exercised provided that the
requisites are complied. In all questions that relates to the
constitutionality of any act of government, the SC will not
directly go to deciding whether or not it is constitutional. The
SC will first justify this exercise of judicial review on the issue
of constitutionality by discussing first whether or not the
requisites have been complied with otherwise the supreme
court will simply dismiss the petition for lack of jurisdiction
simply because of the observance of the separation of
powers.
The requites are:
1. actual case or controversy
2. raised by the proper party
3. at the earliest opportunity of time
4. the issue raised is the lis mota of the case
this means that the main case cannot be
decided without first deciding on the
constitutionality
1. ACTUAL CASE OR CONTROVERSY
The question has to be a justiciable question and not a
political question. Political question pertains to the
philosophy, the rationale of the law or the act of the
government; it has nothing to do with the legality that is
political because they are in the best position to know
whether the law is beneficial to the people. As to the reason
for its enactment, we leave it to congress that makes the law
to determine the propriety of its enactment and such can
only be acted by congress themselves as regards to the
matter of policy and why such particular law is implemented
8
Concern: judge said see dissent of Puno but in the case he was the
ponente
by the president, that is within the domain of the president to
determine. So in which case, if it is a matter of political
discretion, such is beyond the ambit of judicial inquiry. Only
when there is an allegation of grave abuse of discretion, then
the SC may look into. So should it be justiciable, meaning,
there has to be an applicable law or a constitutional
provision as basis for invoking or questioning the validity or
the constitutionality of a particular act of government or of a
law passed by congress.
By case we mean it is contested. There has to be a
conflicting rights claimed by the parties. It cannot be friendly
debate or mere resolution of court to ask the court to be a
referee. It is not for the court to give an opinion.
Actual means existing at the tie of filing of the complaint up
to the termination WON the act complained of is valid. So a
premature filing is not an actual case, in which case, it is
dismissable such as the case of BANGSAMORO.
SC said dismissed questions pertaining to BBL because
there is still a pending bill in Congress. Thus, it will preclude
Congress in the enactment of the law if the SC will assume
jurisdiction. Prematurity could also mean that the complaint
has not yet resulted into a conflict but a mere anticipation
that his right will be violated that would be speculative.
It must not be moot and academic as well, in such that the
controversy must sustain until the determination of the act
complained as valid or not. At the option of SC, even if it is
already moot and academic, SC is not precluded in
reviewing the act complained of and determine its
constitutionality to establish jurisprudence so I the future the
same issue may be raised, then there will be a guideline for
our lawyers, judges, and public.
-DAVID ET ALL VS ARROYO:
GR: mootness of issue cannot be considered as magical
formula in dismissing a case just because the issue
is no longer there. It cannot close its eyes just
because the issue is moot and academic. There are
4 EXCEPTIONS:
A. Patent And Gross Violation Of The Constitution
The supreme cannot just close its eyes and simply dismiss
the case because the case has become moot and academic.
The supreme court has to review the act and establish
guidelines for the future that if the issue would be raised at
least there would be a prevailing principle
B. Issue Is Of Transcendental Importance Or Of
Paramount Interest Or
C. When There Is Necessity Establish Guidelines Or
Precepts For Future Reference
D. When It Can Be Repeated In The Future However It
May Evade Review Then In Which Case Supreme Court
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Must Resolve The Issue Even If It Has Become Moot And
Academic
you have the case of MOA. North Cotabato v. Grp
Government Panel as to the bangsamoro juridicial entity.
The president has already signified that she is not signing
the memo but still the supreme court has proceeded in
review the act being complained of.
on the other hand, you also have case of Pormento v
Estrada
where the supreme court just dismissed the case because
the issue has become moot and academic saying that after
all Mr. Estrada has not been reelected so why you have to
review when there is nothing to review there. it has been
overrun by a subsequent circumstance that is the non
reelection of Estrada and action is considered moot when it
is no longer present a justiciable controversy because the
issue involved academic or dead as such when subsequent
events have overtaken the petition and the court has nothing
to resolve
2. PROPER PARTY
who is the proper party to raise a question
constitutionality?
DIRECT INJURY PRINCIPLE
They must be aggrieved or in the imminent danger of
sustaining injury if the issue on constitutionality is not
resolved.
It would not just be any citizen. He has to be affected
directly by the law for him to be a proper party.
Direct Injury
personal and substantial interest in such that he has
sustained or will sustained direct injury as a result
3. LOCUS STANDI
GR in Civil Cases: must have an actionable right; personal
interest in the outcome of the case. Otherwise, no legal
personality to seek relief.
THIS IS NOT THE CASE IN POLITICAL LAW.
In Political law, it is sufficient to have Locus Standi:
PROPER PARTY
As a TAXPAYER
1st instance: when theres an appropriation of funds and the
disbursement is anomalous. Not just any disbursement of
public funds, it has to be anomalous that would result to
misappropriation of public funds.
2nd instance, when taxpayer questions an exorbitant tax
imposition, because that would tantamount to taking his
property without due process and so, unconstitutional.
As a VOTER
Must show an obvious interest in the validity of the election
law, that will affect his right to vote or to run for public office.
As a CITIZEN
GR: you cant be a proper party if youre just a concerned
citizen because of Direct Injury Principle
EXC: There must be showing that the issues are
transcendental importance which must be settled early. So
that the issue of proper party might be considered as mere
procedural technicality which can be set aside by the SC that
is discretionary of the SC. So even if you are not directly
affected by it, if the SC takes that it has transcendental
importance.
In a case of Belgica, the SC entertained all the issues
pertaining to the constitutionality of a law
of As a LEGISLATOR
There must be a claim of official action that infringes upon
their prerogatives as legislators.
As a CORPORATE ENTITY
The parties suing has substantial relation to the third party,
the third party cannot assert his constitutional right: the right
of the third party to be included unless the third party by the
Court is allowed to the constitutional claim.
La Bugal BLaan vs Ramos:
La Bugal are the natives that questioned the validity of the
contract entered by the Philippines with a corporation that is
practically foreign. Can they be proper party? Are they are
involved in mining? Are they competing with the said
corporation? Are their rights affected by the mining
corporation? SC recognized their legal standing, not
necessarily an actionable right like in civil law.
Oposa vs. Factoran.
The injury would either be actual or potential. So in the case
of the minor children, who filed a petition to enjoin the
secretary of DENR in the issuance of mining concessions
and logging concessions on applicants. There was a
question as to whether they are proper parties under the
principle of or under the right of or right to a healthful and
balanced ecology, and the fact that, under the principle of
Intergenerational Responsibility to preserve the forest and
the timberland for the next generation. So it could be
potential.
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Oposa vs. Factoran.
Xxxx
This case, however, has a special and novel element.
Petitioners minors assert that they represent their generation
as well as generations yet unborn. We find no difficulty in
ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class
suit.
Their personality to sue in behalf of the succeeding
generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the "rhythm and
harmony of nature."
Nature means the created world in its entirety. 9 Such rhythm
and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and
utilization be equitably accessible to the present as well as
future generations. 10 Needless to say, every generation has
a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection
of that right for the generations to come.
The locus standi of the petitioners having thus been
addressed, We shall now proceed to the merits of the
petition.
3. EARLIEST OPPORTUNITY
The issue of constitutionality must be raised at the earliest
opportunity, which is when you file your pleading, that's the
earliest opportunity. If you do not allege that in your
complaint or in your answer, you may not be allowed to
present evidence on the unconstitutionality of the act
complained of during the trial.
If you presented in your pleading, however you did not
present evidence to substantiate what you alleged in your
pleadings, then you may not be allowed to raise that for the
first time on appeal if you lose the case. That's the general
rule. However, take note of the exceptions where even if it
was not raised in the pleadings in the trial, it may still be
allowed to be raised for the first time on appeal.
1. When it is a criminal case. You are questioning the
validity or the constitutionality of the penal laws.
Because after all, if a penal law is declared
unconstitutional, it would be to the advantage of the
accused, and it would be applied retroactively, so
meaning if there is no law punishing the act, then, it
would be as if no crime was committed. In which
case, it would be beneficial to the accused because
it is as if he did not commit a crime. The case can be
dismissed. So it can be raised for the first time on
appeal.
2. On the issue of jurisdiction. That could raised
anytime at any stage of the proceedings before
finality of the decision.
3. And finally, in civil cases, only when it is the lis mota.
Meaning, the relief sought for cannot be determined
or cannot be resolved without first settling the issue
of constitutionality.
4. LIS MOTA
Only when it is the lis mota. Meaning if there are other
grounds by which the case can be resolved or be disposed
of, as much as possible, our courts should not touch on the
issue of constitutionality because it might endanger the
stability of our country. So, only when the issue or the case
cannot be resolved without settling first the issue on
constitutionality, then the Supreme Court may exercise
judicial review.
Take note of Belgica et al., vs. the Executive Secretary,
Supreme court said of these requisites, the case law states
that the first two are the most important. What are the first
two?
a) Actual case or controversy
b) It must be raised by the proper party
Now let us go the effects of the declaration of
unconstitutionality. Assuming that judicial review was
exercised properly, what would be the outcome?
EFFECTS OF THE DECLARATION OF
UNCONSTITUTIONALITY
Assuming that judicial review has been exercised properly,
the outcome may either be that:
(1) the Supreme Court may declare the law as not
unconstitutional, what we call as double negative declaration.
In other words, ratifying or legitimating what is already
presumed to be valid as valid or it may
(2) declare the law as unconstitutional. So how do you treat
a law as declared as unconstitutional? The process in such
declaration can only be decided by the Supreme Court
sitting en banc with majority vote of those who actually
participated in the deliberation, based on a quorum.
Let us review! There are 15, so youll need majority (no.
divided by 2 plus 1) so 8. If there are 14 justices, youll still
need 8. If 13, you need 7. If there are 12, you need 7 votes
as well. If there are 11 or 10, youll need 6. If there are 9,
youll need 5. If there are 8, youll still need 5. If you have 7,
there is no more quorum, in which case there cannot be any
deliberation. If they cannot obtain the requisite majority, the
petition will be dismissed, thereby sustaining the
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constitutionality or the validity of the law that is being
questioned.
Now, let us go to the effect. There are 2 theories on this:
1. Traditional view a law that is declared
unconstitutional is not a law from the time of its
enactment or from inception. So if it is not a law from
the very beginning, it creates no rights, it imposes no
obligations, it creates no office and no protection
from the very beginning. It will be as if a law had
never passed because it is void. Therefore, the
effects of the law is not recognized at all and that
would not be fair.
2. Modern view we follow this view in our jurisdiction
under the principle of operative fact doctrine. You
recognize the effects of the law prior to its
declaration of unconstitutionality for reasons of
equity and justice.
For a discussion on the OPERATIVE FACT DOCTRINE,
you have the case of Araullo vs. Executive Secretary.
Please read that. Although the supreme court was saying
that there are buildings or infrastructures that have already
been implemented under the DAP, as long as it would
benefit the public, the same should not be affected by the
declaration of the unconstitutionality of DAP. Ang-ang man
sad ug imu nang gub-on nga di naman nimu makuha ang
kwarta. Its lost forever, its already been used. On the other
hand, the supreme court stated that this is without prejudice
to the liability of public officials who may be responsible in
the implementation of DAP (the president did not like this
part of the decision), because apparently it was applied
retroactively without recognizing the validity of the act of all
even if it was made in good faith. It has been applied
retroactively without recognizing the validity of the act of all
even if it was made in good faith. So just go over that
because there is a discussion of the operative fact doctrine.
Doctrine of operative fact was applicable9
After declaring the DAP and its implementing issuances
constitutionally infirm, we must now deal with the
consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. 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.
9
GR209287
A legislative or executive act that is declared void for being
unconstitutional cannot give rise to any right or obligation.206
However, the generality of the rule makes us ponder
whether rigidly applying the rule may at times be
impracticable or wasteful. Should we not recognize the need
to except from the rigid application of the rule the instances
in which the void law or executive act produced an almost
irreversible result?
The need is answered by the doctrine of operative fact. The
doctrine, definitely not a novel one, has been exhaustively
explained in De Agbayani v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that
an unconstitutional act, for that matter an executive order or
a municipal ordinance likewise suffering from that infirmity,
cannot be the source of any legal rights or duties. Nor can it
justify any official act taken under it. Its repugnancy to the
fundamental law once judicially declared results in its being
to all intents and purposes a mere scrap of paper. As the
new Civil Code puts it: When the courts declare 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 of the Constitution. It is understandable
why it should be so, the Constitution being supreme and
paramount. Any legislative or executive act contrary to its
terms cannot survive.
Such a view has support in logic and possesses the merit of
simplicity. It may not however be sufficiently realistic. It does
not admit of doubt that prior to the declaration of nullity such
challenged legislative or executive act must have been in
force and had to be complied with. This is so as until after
the judiciary, in an appropriate case, declares its invalidity, it
is entitled to obedience and respect. Parties may have acted
under it and may have changed their positions. What could
be more fitting than that in a subsequent litigation regard be
had to what has been done while such legislative or
executive act was in operation and presumed to be valid in
all respects. It is now accepted as a doctrine that prior to its
being nullified, its existence as a fact must be reckoned with.
This is merely to reflect awareness that precisely because
the judiciary is the governmental organ which has the final
say on whether or not a legislative or executive measure is
valid, a period of time may have elapsed before it can
exercise the power of judicial review that may lead to a
declaration of nullity. It would be to deprive the law of its
quality of fairness and justice then, if there be no recognition
of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision:
The actual existence of a statute, prior to such a
determination [of unconstitutionality], is an operative fact and
may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects, with
respect to particular relations, individual and corporate, and
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particular conduct, private and official."
The doctrine of operative fact recognizes the existence of
the law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced
consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or executive act
but sustains its effects. It provides an exception to the
general rule that a void or unconstitutional law produces no
effect.208 But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act, but is resorted to only
as a matter of equity and fair play.209 It applies only to cases
where extraordinary circumstances exist, and only when the
extraordinary circumstances have met the stringent
conditions that will permit its application.
We find the doctrine of operative fact applicable to the
adoption and implementation of the DAP. Its application to
the DAP proceeds from equity and fair play. The
consequences resulting from the DAP and its related
issuances could not be ignored or could no longer be
undone.
To be clear, the doctrine of operative fact extends to a void
or unconstitutional executive act. The term executive act is
broad enough to include any and all acts of the Executive,
including those that are quasi legislative and quasi-judicial in
nature. The Court held so in Hacienda Luisita, Inc. v.
Presidential Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the
applicability of the operative fact doctrine should be limited to
statutes and rules and regulations issued by the executive
department that are accorded the same status as that of a
statute or those which are quasi-legislative in nature. Thus,
the minority concludes that the phrase executive act used in
the case of De Agbayani v. Philippine National Bank refers
only to acts, orders, and rules and regulations that have the
force and effect of law. The minority also made mention of
the Concurring Opinion of Justice Enrique Fernando in
Municipality of Malabang v. Benito, where it was supposedly
made explicit that the operative fact doctrine applies to
executive acts, which are ultimately quasi-legislative in
nature.
We disagree. For one, neither the De Agbayani case nor the
Municipality of Malabang case elaborates what executive
act mean. Moreover, while orders, rules and regulations
issued by the President or the executive branch have fixed
definitions and meaning in the Administrative Code and
jurisprudence, the phrase executive act does not have such
specific definition under existing laws. It should be noted that
in the cases cited by the minority, nowhere can it be found
that the term executive act is confined to the foregoing.
Contrarily, the term executive act is broad enough to
encompass decisions of administrative bodies and agencies
under the executive department which are subsequently
revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal
B. Elma (Elma) as Chairman of the Presidential Commission
on Good Government (PCGG) and as Chief Presidential
Legal Counsel (CPLC) which was declared unconstitutional
by this Court in Public Interest Center, Inc. v. Elma. In said
case, this Court ruled that the concurrent appointment of
Elma to these offices is in violation of Section 7, par. 2,
Article IX-B of the 1987 Constitution, since these are
incompatible offices. Notably, the appointment of Elma as
Chairman of the PCGG and as CPLC is, without a question,
an executive act. Prior to the declaration of
unconstitutionality of the said executive act, certain acts or
transactions were made in good faith and in reliance of the
appointment of Elma which cannot just be set aside or
invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact
doctrine, held that despite the invalidity of the jurisdiction of
the military courts over civilians, certain operative facts must
be acknowledged to have existed so as not to trample upon
the rights of the accused therein. Relevant thereto, in
Olaguer v. Military Commission No. 34, it was ruled that
military tribunals pertain to the Executive Department of the
Government and are simply instrumentalities of the
executive power, provided by the legislature for the
President as Commander-in-Chief to aid him in properly
commanding the army and navy and enforcing discipline
therein, and utilized under his orders or those of his
authorized military representatives.
Evidently, the operative fact doctrine is not confined to
statutes and rules and regulations issued by the executive
department that are accorded the same status as that of a
statute or those which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the
operative fact doctrine only to executive issuances like
orders and rules and regulations, said principle can
nonetheless be applied, by analogy, to decisions made by
the President or the agencies under the executive
department. This doctrine, in the interest of justice and
equity, can be applied liberally and in a broad sense to
encompass said decisions of the executive branch. In
keeping with the demands of equity, the Court can apply the
operative fact doctrine to acts and consequences that
resulted from the reliance not only on a law or executive act
which is quasi-legislative in nature but also on decisions or
orders of the executive branch which were later nullified.
This Court is not unmindful that such acts and
consequences must be recognized in the higher interest of
justice, equity and fairness.
Significantly, a decision made by the President or the
administrative agencies has to be complied with because it
has the force and effect of law, springing from the powers of
the President under the Constitution and existing laws. Prior
to the nullification or recall of said decision, it may have
produced acts and consequences in conformity to and in
reliance of said decision, which must be respected. It is on
this score that the operative fact doctrine should be applied
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to acts and consequences that resulted from the
implementation of the PARC Resolution approving the SDP
of HLI. (Bold underscoring supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power
Corporation,211 the Court likewise declared that "for the
operative fact doctrine to apply, there must be a legislative
or executive measure, meaning a law or executive
issuance." Thus, the Court opined there that the operative
fact doctrine did not apply to a mere administrative practice
of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling
issued by the Commissioner from the time the rule or ruling
is issued up to its reversal by the Commissioner or this
Court. The reversal is not given retroactive effect. This, in
essence, is the doctrine of operative fact. There must,
however, be a rule or ruling issued by the Commissioner that
is relied upon by the taxpayer in good faith. A mere
administrative practice, not formalized into a rule or ruling,
will not suffice because such a mere administrative practice
may not be uniformly and consistently applied. An
administrative practice, if not formalized as a rule or ruling,
will not be known to the general public and can be availed of
only by those with informal contacts with the government
agency.
It is clear from the foregoing that the adoption and the
implementation of the DAP and its related issuances were
executive acts.1avvphi1 The DAP itself, as a policy,
transcended a merely administrative practice especially after
the Executive, through the DBM, implemented it by issuing
various memoranda and circulars. The pooling of savings
pursuant to the DAP from the allotments made available to
the different agencies and departments was consistently
applied throughout the entire Executive. With the Executive,
through the DBM, being in charge of the third phase of the
budget cycle the budget execution phase, the President
could legitimately adopt a policy like the DAP by virtue of his
primary responsibility as the Chief Executive of directing the
national economy towards growth and development. This is
simply because savings could and should be determined
only during the budget execution phase.
As already mentioned, the implementation of the DAP
resulted into the use of savings pooled by the Executive to
finance the PAPs that were not covered in the GAA, or that
did not have proper appropriation covers, as well as to
augment items pertaining to other departments of the
Government in clear violation of the Constitution. To declare
the implementation of the DAP unconstitutional without
recognizing that its prior implementation constituted an
operative fact that produced consequences in the real as
well as juristic worlds of the Government and the Nation is to
be impractical and unfair. Unless the doctrine is held to
apply, the Executive as the disburser and the offices under it
and elsewhere as the recipients could be required to undo
everything that they had implemented in good faith under the
DAP. That scenario would be enormously burdensome for
the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately
shown as to be beyond debate that the implementation of
the DAP yielded undeniably positive results that enhanced
the economic welfare of the country. To count the positive
results may be impossible, but the visible ones, like public
infrastructure, could easily include roads, bridges, homes for
the homeless, hospitals, classrooms and the like. Not to
apply the doctrine of operative fact to the DAP could literally
cause the physical undoing of such worthy results by
destruction, and would result in most undesirable
wastefulness.
Nonetheless, as Justice Brion has pointed out during the
deliberations, the doctrine of operative fact does not always
apply, and is not always the consequence of every
declaration of constitutional invalidity. It can be invoked only
in situations where the nullification of the effects of what
used to be a valid law would result in inequity and
injustice;212 but where no such result would ensue, the
general rule that an unconstitutional law is totally ineffective
should apply.
In that context, as Justice Brion has clarified, the doctrine of
operative fact can apply only to the PAPs that can no longer
be undone, and whose beneficiaries relied in good faith on
the validity of the DAP, but cannot apply to the authors,
proponents and implementors of the DAP, unless there are
concrete findings of good faith in their favor by the proper
tribunals determining their criminal, civil, administrative and
other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the
petitions for certiorari and prohibition; and DECLARES the
following acts and practices under the Disbursement
Acceleration Program, National Budget Circular No. 541 and
related executive issuances UNCONSTITUTIONAL for
being in violation of Section 25(5), Article VI of the 1987
Constitution and the doctrine of separation of powers,
namely:
(a) The withdrawal of unobligated allotments from the
implementing agencies, and the declaration of the
withdrawn unobligated allotments and unreleased
appropriations as savings prior to the end of the fiscal
year and without complying with the statutory definition
of savings contained in the General Appropriations
Acts;
(b) The cross-border transfers of the savings of the
Executive to augment the appropriations of other offices
outside the Executive; and
(c) The funding of projects, activities and programs that
were not covered by any appropriation in the General
Appropriations Act.
The Court further DECLARES VOID the use of
unprogrammed funds despite the absence of a certification
by the National Treasurer that the revenue collections
exceeded the revenue targets for non-compliance with the
conditions provided in the relevant General Appropriations
Acts.
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SO ORDERED.
CONCURRING OPINION
LEONEN, J.:
The GENERAL RULE is that a declaration of
unconstitutionality of any act means that such act has no
legal existence: It is null and void ab initio.118cralawred
The EXISTING EXCEPTION is the doctrine of operative
facts. The application of this doctrine should, however, be
limited to situations where (a) there is a showing of good
faith in the acts involved or (b) where in equity we find that
the difficulties that will be borne by the public far outweigh
rigid application to the effect of legal nullity of an act.
The doctrine saves only the effects of the unconstitutional
act. It does not hint or even determine whether there can be
any liability arising from such acts. Whether the
constitutional violation is in good faith or in bad faith, or
whether any administrative or criminal liability is forthcoming,
is the subject of other proceedings in other forums.
Likewise, to rule that a declaration of unconstitutionality per
se is the basis for determining liability is a dangerous
proposition. It is not proper that there are suggestions of
administrative or criminal liability even before the proper
charges are raised, investigated, and filed.
Any discussion on good faith or bad faith is, thus, premature.
But, in our jurisdiction, the presumption of good faith is a
universal one. It assures the fundamental requisites of due
process and fairness. It frames a judicial attitude that
requires us to be impartial.
Certiorari and prohibition as remedies are, thus, unavailing
for these questions where the factual conditions per expense
item cannot be convincingly established and where the
regulations have become moot and academic. This is
definitely not the proper case to assess the effects of each of
the 116 projects under the DAP.
Our decision today should not be misinterpreted as authority
to undo infrastructure built or expenditures made under the
DAP. Nor should it be immediately used as basis for saying
that any or all officials or beneficiaries are either liable or not
liable. Each expenditure must be audited in accordance with
our ruling.chanroblesvirtuallawlibrary
JUDICIAL INDEPENDENCE OF SUPREME COURT
Question: What are the safeguards to make sure that
the independence of the sc shall be ensured?
Answer:
1. Constitution which means that it cannot be abolished
by ordinary legislation.
a) There is only one sc so that even if decision of sc is
decided by division, that is practically decided by
the whole sc although you can have that reversed
in SC en banc.
b) Justices of sc are only removable through
impeachment. There you cannot file a disbarment
case against a justice or case in ombudsman for
criminal offenses relating to performance of public
function or even ordinary criminal case because it
could be said that it will amount to disqualification.
So practically there is immunity because of this
guarantee on removal only through impeachment.
c) For as long as they are in good behavior, they
remain in power until they reach the age of 70
unlike in America, it is for life perpetual ila term of
office.
d) In so far as judges are concerned where they are
appointed by the president, the president how
subject to exclusive disciplinary supervision of the
sc in which case they cannot be charged in the
ombudsman whether or not it be criminal or
administrative. Administrative exclusive only to the
sc. Criminal only when sc allows it because sc has
no criminal jurisdiction so only when sc says go
ahead you can investigate the judge for criminal
acts, otherwise, they cannot be under the
jurisdiction of the ombudsman. Thats part of their
independence
e) Not allowed to exercise quasi judicial function or
executive function to maintain their independence.
They can only exercise judicial powers and so you
take note of the case of Makalintal vs
Presidential Electoral Tribunal,
i. the SC emphasized here that what they were
performing as members of the PET are not
quasi-judicial but essentially a judicial function
and therefore it does not violate the provision
of the Constitution as to guarantee their
independence.
Another thing that we must Take Note on their power to
appoint their own personnel in accordance with the Civil
Service Commission except with judges, such is the
prerogative of the SC to ensure their independence.
f) Most importantly, you take note that they enjoy
fiscal autonomy.
(storya si judge sa iyang experience sa iyang allowance and
with DBM/National Treasury)
The recent decision on that fiscal autonomy came out last
bar exam, GSIS vs heirs of Fernando Caballero 632
SCRA 514 and 15 October 4, 2010.
If the SC is to gloat financially? What was the basic principle
here guys? That when one would say fiscal autonomy gani,
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
enjoyed by the SC, it simply means that it has the power to
collect, access, assess, fees, charges and duties of all kind.
To safeguard the independence, if the SC has the authority
to levy, assess and collect fees including legal fees. Silay
magbuot if muincrease ang filing fees, pila ang legal fees
nga iimpose. Ang executive og judiciary nag-away kay SC
refused to divulge pila ilang income nakuha from the filing
fees and they do not want to relay that to the National
Treasure and they were saying that we enjoy fiscal
autonomy, these are our collections. If you impose upon us
to declare then that would be tantamount to intruding into our
fiscal autonomy that would be unconstitutional. What
happened to GSIS was this, a law was passed exempting
GSIS from filing fees and legal fees. In other words, SC
was prohibited from collecting from cases of GSIS, so they
did not pay filing fees because according to GSIS, they were
exempted from taxes as well and legal fees, filing fees that
may be imposed. SC said, of course they are not exempt.
SC said that, SC now has the sole authority to promulgate
rules (because this also relates to the power to promulgate
rules,) concerning pleading, practice and procedure in all
courts. It has something to do with pleadings and procedure
in all courts. SC said that the separation of powers among
the three co-equal branches of government has been
directed (inaudible) hold the power to promulgate rules of
pleadings, practice and procedure within the sole province of
this court , the other branches trespassed upon this in by
issuing orders that effectively repel or nullify any of the
procedures and rules promulgated by the SC. It was deemed
from this perspective that the legislative grant of exemption
from the payment of legal fees under Sec. 39 of RA 8291
necessarily fails. Notice have not carved out an exemption to
GSIS from the payment of legal fees without transgressing
another equally important institution of the SCs
independence which is fiscal autonomy. Fiscal autonomy
recognizes the power and authority of the SC to levy, assess,
and collect fees including legal fees. Legal fees under Rule
141 have two basic components: the Judiciary Development
Fund (JDF) wherein we get our allowance and special
allowance for the Judiciary Fund, also another allowance.
The laws which established these allowances expressly
declare the identical purpose to guaranty the independence
of the judiciary as mandated by the Constitution and public
policy. Legal fees, therefore, do not only constitute a vital
source of financial resources, but also comprise an essential
element of the courts fiscal independence. Any exemption
from the payment of legal fees granted by Congress to
government corporations and LGUs will necessarily reduce
the JDF. It will impair the guaranty, fiscal autonomy and its
independence.
If you compare the budget of the three branches of the
government, ours is less than 10% budget. Sa allocation, 60
siguro sa executive branch, 30 sa legislative then 10% for
the judiciary. Co-equal mana kaha?
On Judicial Restraint, that is only on the matter of political
questions. SC has no jurisdiction. That is granted expressly
by the Constitution to the co-other branches such as the
executive and legislative. to determine if there has been a
grave abuse of discretion because that phrase justifies the
SC in reviewing even political or discretionary acts of the
different branches of the government and the legislative.
ON APPOINTMENTS TO THE JUDICIARY, YOU HAVE
THE JBC. This is a favorite in the bar.
Their role is to recommend to the president. They nominate
3 nominees.
What's the Composition of the JBC?
1. Ex officio Chairman-
The SC Chief Justice; while having the Clerk of the
Supreme Court as the the Secretary ex officio of the
Council and shall keep a record of its proceedings.
2. Ex officio Members-
1. The Secretary of justice
2. Representing the Congress- you have someone
from HOR or Senate. HOR argued na co-equal sila sa
congress, so magsend sila ug 1 representative each.
So all in all, one vote. In practice puli-puli. Pero
nadugay kay 2 votes naman nuon from the congress.
Take Note, the constitution says MEMBER,
not MEMBERS.It should only be one.
SC settled this that there should only be one representation.
So, unsa namay nahitabo atong mga nanominate kadtong
time nga 2 ang muvote gikan sa congress?
The operative fact doctrine now comes in. According to the
Supreme Court, there should be only one representation in
order to maintain the equality among the three branches. But
what happened to the nominees who obtained two votes in
Congress? Ipangnullify nimo ang appointment?
Thats why the Operative Fact Doctrine was applied. Di
nato nimo pang-istorbohon. Kadtong mga nanominate nga
naay duha sa Kongreso, you may have obtained the
appointment. Ivalid pa hinuon iyang appointment. So that
would not be disturbed.
3. Regular Members of the JBC
a) Retired Justice of The Supreme Court
b) Representative from the academe
c) Representative from the private sector
d) Representative from the Integrated Bar of the
Philippines
Term of regular members: 4 years; appointed by the
President with confirmation from the CA
For the first set of appointments in the Constitutional
Commissions, they follow the rotational scheme of
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
appointment. 4,3,2,1. Karon nahuman na nila, the regular
members serve for a term of 4 years. It is silent as to the
number of reappointment.
In fact, Justice Hermossisima has been there for like,
forever until he was replaced. He was from Cebu. Its silent
as to reappointment. As long as they like you, you get to
stay.
For regular members, you memorize. It came out in the bar
exam so many times. Again, the term is 4 years subject to
the confirmation of the Commission on Appointments.
Nomination as to vacancy: Majority vote. For a
nomination to any vacancy, you need the vote of the
majority.
You have 3 ex-officio members and 4 regular members. So
what is the majority of 7? 4. Here, the Chairman can also
vote. If you dont get 4 votes then you cannot be included in
the short list. And the short list will be submitted to the
President.
Question: Is the President limited to the list?
Answer: Yes. He has discretion to choose among the
nominees.
Question: If the President does not like any nominees
as it so happened,can he return it?
Answer: No, he is just limited to who is included in the
list.
One time, I remember, the President did not like the
nominees included in the list and he returned it. The SC
Chief Justice Sereno also returned the list back to him
If you can recall in a specific case, when there was still no
appointment for a new Chief Justice of the Supreme Court
when Corona was removed, who then became the Chairman
of the JBC? Wala naman ang Chief Justice, naremove
naman. Most of the Justices of the SC, the senior ones,
applied for the position. The SC said that just because the
CJ is no longer there that the JBC will stop operating. Just
because most of the members of the SC applied for the
position of Chairman, it doesnt mean also that nobody can
preside anymore the JBC and therefore it cannot operate. In
this case, SC said you follow the practice, the tradition in the
matter of exercising the powers of the SC. So its in the rules,
that whoever is the most senior among the juniors would be
presiding. Kanang wala mangapply. So in that case, it was
Justice Peralta who acted as the Chairman of the JBC until a
new Chief Justice of the SC has been chosen.
Supreme Court
Question: How do they decide cases?
Answer: En banc and in division
Question: What are the cases covered under En banc?
Answer:
1. provisions of the constitution and the Rules of
Court. Any issue with regard to constitutionality will be
decided En banc.
a) Example the constitutionality of a tax
measure.
2. cases heard in division wherein the required
majority votes are not obtained
3. cases of the SC which modifies or divorces a
doctrine of law previously laid down either En banc or in
Division.
(Note: There are no decisions of the SC that can be
modified or reversed unless it is done by SC En banc)
4.administrative cases where the vote is for the
dismissal of the judge of a lower court. Or otherwise to
discipline judges where the penalty is more than 30
days and fine is more than 10,000.
5. election contest for president and vice president
Take Note: When the SC sits En banc, cases are decided
by the concurrence of the majority of members who actually
took part in the deliberations of the issues of the case and
voted thereon. All the rest of the cases are decided in
division: division 3, 5, and 7 or 8.
JURISDICTION OF SC CONFERRED/GRANTED
EXPRESSLY BY THE CONSTITUTION:
Original jurisdiction of SC
1. Any case involving foreign ambassador or
consulsoriginal jud na siya concurrent with CA and
RTC.
2. Any case involving writ of prohibition, certiorari,
mandamus, quo warranto and habeas corpus, and writ
of amparo --- concurrent with CA and RTC
3. Review of the factual basis for the declaration of
martial law and suspension of the writ of habeas
corpus--- not just on the question of law but also
questions of Fact
Appellate jurisdictionall the rest
Note:
1. Original jurisdiction of SC - cannot be decreased by
ordinary legislation but can be increased.
2. Appellate jurisdiction of SC- cannot be decreased by
ordinary legislation. Can it be increased? Answer is qualified:
(read the case of Desierto or the constitution itself) subject to
SCs advise or consent, without which any increase of its
appellate jurisdiction through ordinary legislation is contrary
to the Constitution.
En banc cases coming from constitutional
commissions:
COMELEC and COA- can be appealed diectly
to the SC through petition for certiorari
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Civil Service Commission- immediately
appealable to the CA.
Reclusion perpetual penalty-- ; death penaltymust
pass through appellate review by CA before it goess
to the SC.
PROCEDURAL RULE MAKING (roles of SC)
sec. 5(5), art. 8 (VERY IMPORTANT)-
exclusive power of SC to amend the Rules of
Court (ROC). Although in the case of
______ , SC said that congress--because
legislative power is plenary to them, they
are not precluded from passing a law that
might amend or change the rules of court.
But as it is now, the rule-making power of
the SC is EXCLUSIVE to the SC.
Controversy of the case of ___:
the passage of RA 7574 that amended rule 67,
ROC on just compensationregarded as
unconstitutional because according to
petitioner, it is not for congress to amend the
Rules of Court, rather, it is now an exclusive
perogative of the SC. And SC said that no,
no, legislative power is plenary; practically
absolute and discretionary of congress.
They cannot be barred from making any law
for as long as it is not contrary to the
Constitution.
The SC acknowledges that the power (to
promulgate rules/ rule-making power), by
nature, is legislative. The SC is given such
power to promulgate rules having the force
and effect of law; concerning: (MEMORIZE)
i. protection and enforcement of
constitutional rights (e.g. *writ of
amparo, writ of habeas data)
ii. pleadings (e.g. judicial affidavit rule-
manner of presenting the
witnesses)
iii. practice and procedure in all courts
(latest of which, read the case of
GSIS)
iv. Integrated Bar of the Philippines,
admission to the bar/to the practice
of law
*can only be applied when the government is involved. If no
government involvement, writ of amparo cannot be availed
of.
So related to this rule- making power. Na master na ninyo
ang writ of amparo, writ of habeas data.
Writ of Amparo
We should always remember that this can only be applied
kung naai involvement ang government. If there is no
government, you cannot avail of writ of amparo.
Question: What is being protected of writ of amparo?
Answer: right to life, liberty or security. Or threat of
violation. Even threat of violation to your right to life, liberty,
or security.
TN of the Injunctive Reliefs provided for under the Writ Of
Amparo:
1. Temporary protective order
2. Inspection order
3. Production order
4. Witness protection order
On the Writ Of Habeas Data guys what it being protected is
your privacy to life, liberty or security.
So basically, it is a writ of the court to order whoever may
have some information or data that may violate your privacy
to life, liberty or security guys. So that the same may be
corrected if it is necessary otherwise you may ask for the
destruction of the information. Go over with that. But in the
more recent decision of the Supreme Court in the case of
COA the Sc was saying, as between privacy and public
interest, public interest will always prevail.
Just read the writ of habeas data in relation to writ of
information of public concern. This is a limitation of the right
to information.
Administrative supervision over lower courts
As I may have said already, many complaints against court
personnel gikan pana sa janitor up to the judges. The
complaints exclusive siya, sa investigatory power of the SC,
however, limited only to the administrative.
Question : Whether or not the Ombudsman can then
investigate a judge or a justice who is not impeachable on
acts that are criminal in nature?
Answer: No.
So first. there has to be initial investigation by the SC.
Especially the administrative case. Then later, on the
discretion of the SC, SC may direct the Ombudsman to
determine the probable cause for criminal culpability. So
they have to wait in other words until SC may direct the
Ombudsman to conduct the investigation. This case I am
referring must relate to the performance duty of the
personnel. Because if it is not, the court personnel can be
investigated of those that are not related to the performance
of duty. So that is part of the administrative supervision over
the lower courts. So TN of that.
Judicial Privilege
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
The justices of the SC cannot be compelled to appear in
court. In a legislative inquiry for example, in order to disclose
information that may undermine the integrity of the
independence of the courts.
In the impeachment case of Chief Justice Corona, this
pertains to the application for a TRO by the Arroyo against
the DOJs so they may be allowed to leave the country for
medical treatment.
It was granted by the SC, subject to the filing of bond. That
was one of the issues raised in the case of the justice, that
he was favoring the former president. So they wanted to
know what time exactly was the paper filed.
That DOJ secretary was not bound to recognize the order of
the SC because the applicant has not complied with the
conditions for the grant of the TRO. So they wanted to know
the date, time, and the people who made follow ups of those
documents or who were there in the processing of the
documents in the SC. At that point they said that it is part of
judicial privilege because it would undermine the integrity of
the Supreme Court.
It has the same effect as the executive privilege.
JUNE 27, 2015
CONSTITUTIONAL COMMISSION (CONCOM)
- They include Commission of Audit (COA), Civil Service
Commission (CSC) and the Commission of Election
(COMELEC)
Constitution Safeguards
1. To guarantee independence of ConCom
- They are constitutional bodies and therefore they
cannot be abolished by an ordinary legislation. The
commissioners are appointed by the President (thats direct)
but they cannot be removed by the President. They are
removable only through impeachment for as long as they are
in good behavior.
The term of office is fixed by the Constitution.
- It is 7 yrs without reappointment. There are
rotation of appointment, it applies only to the 1st set of
appointments to the ConCom. Thereafter, the ones will
be appointed subsequent to the initial appointment of
the commissioners. They are serving for 7 years without
reappointment.
The nature of appointment is always permanent.
- There cannot be an acting commissioner, that is
prohibited. However, you have the case of Matibag vs.
Benipayo. In the case of Matibag, this is subject to the
confirmation of Commission of Appointments (CA).
Where there is no confirmation of CA because
appointment is ad interim, appointment will last only
until the adjournment of the session of Congress then
reappointment is not prohibited because the provision
on reappointment applies only to regular appointment.
Take note of the case of Funa,
there was a question on the appointment of a member
commissioner to be the chairman of the commission of
appointments. It says 7 years. But this particular individual
did not finish his term because he resigned, he served only
at about 3 years as commissioner and thereafter he was
appointed as chariman of COA. I think he did not resign but
he was a member but appointed to chairmanship. The
question: would that be considered as reappointment and
therefore prohibited. SC held that he can be appointed as
the Chief of COA provided that it would not be more than the
7-year term. So let us say if he has served for 3 years as
member of commissioner of COA, he has still 4 years. If
vacancy occurred, he is only to serve the remaining term of
his predecessor.
(Personally, dili clear ang facts. Hehe. Let us read the case
the na lang)
DENNIS A. B. FUNA, PETITIONER, VS. THE CHAIRMAN,
COA, REYNALDO A. VILLAR
G.R. No. 192791, April 24, 2012
FACTS: Funa challenges the constitutionality of the
appointment of Reynaldo A. Villar as Chairman of the COA.
Following the retirement of Carague on February 2, 2008
and during the fourth year of Villar as COA Commissioner,
Villar was designated as Acting Chairman of COA from
February 4, 2008 to April 14, 2008. Subsequently, on April
18, 2008, Villar was nominated and appointed as Chairman
of the COA. Shortly thereafter, on June 11, 2008, the
Commission on Appointments confirmed his appointment.
He was to serve as Chairman of COA, as expressly
indicated in the appointment papers, until the expiration of
the original term of his office as COA Commissioner or on
February 2, 2011. Challenged in this recourse, Villar, in an
obvious bid to lend color of title to his hold on the
chairmanship, insists that his appointment as COA
Chairman accorded him a fresh term of 7 years which is yet
to lapse. He would argue, in fine, that his term of office, as
such chairman, is up to February 2, 2015, or 7 years
reckoned from February 2, 2008 when he was appointed to
that position.
Before the Court could resolve this petition, Villar, via a letter
dated February 22, 2011 addressed to President Benigno S.
Aquino III, signified his intention to step down from office
upon the appointment of his replacement. True to his word,
Villar vacated his position when President Benigno Simeon
Aquino III named Ma. Gracia Pulido-Tan (Chairman Tan)
COA Chairman. This development has rendered this petition
and the main issue tendered therein moot and academic.
Although deemed moot due to the intervening appointment
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
of Chairman Tan and the resignation of Villar, We consider
the instant case as falling within the requirements for review
of a moot and academic case, since it asserts at least four
exceptions to the mootness rule discussed in David vs
Macapagal Arroyo namely:
a. There is a grave violation of the Constitution;
b. The case involves a situation of exceptional character and
is of paramount public interest;
c. The constitutional issue raised requires the formulation of
controlling principles to guide the bench, the bar and the
public;
d. The case is capable of repetition yet evading review.
ISSUES:
a. WON Villars appointment as COA Chairman, while sitting
in that body and after having served for four (4) years of his
seven (7) year term as COA commissioner, is valid in light of
the term limitations imposed under, and the circumscribing
concepts tucked in, Sec. 1 (2), Art. IX(D) of the Constitution
HELD:
On the substantive issue:
Sec. 1 (2), Art. IX(D) of the Constitution provides that:
(2) The Chairman and Commissioners [on Audit] 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.
Petitioner now asseverates the view that Sec. 1(2), Art. IX(D)
of the 1987 Constitution proscribes reappointment of any
kind within the commission, the point being that a second
appointment, be it for the same position (commissioner to
another position of commissioner) or upgraded position
(commissioner to chairperson) is a prohibited reappointment
and is a nullity ab initio.
The Court finds petitioners position bereft of merit. The flaw
lies in regarding the word reappointment as, in context,
embracing any and all species of appointment. The rule is
that if a statute or constitutional provision is clear, plain and
free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation.
The first sentence is unequivocal enough. The COA
Chairman shall be appointed by the President for a term of
seven years, and if he has served the full term, then he can
no longer be reappointed or extended another appointment.
In the same vein, a Commissioner who was appointed for a
term of seven years who likewise served the full term is
barred from being reappointed. In short, once the Chairman
or Commissioner shall have served the full term of seven
years, then he can no longer be reappointed to either the
position of Chairman or Commissioner. The obvious intent of
the framers is to prevent the president from dominating the
Commission by allowing him to appoint an additional or two
more commissioners.
On the other hand, the provision, on its face, does not
prohibit a promotional appointment from commissioner to
chairman as long as the commissioner has not served the
full term of seven years, further qualified by the third
sentence of Sec. 1(2), Article IX (D) that the appointment to
any vacancy shall be only for the unexpired portion of the
term of the predecessor. In addition, such promotional
appointment to the position of Chairman must conform to the
rotational plan or the staggering of terms in the commission
membership such that the aggregate of the service of the
Commissioner in said position and the term to which he will
be appointed to the position of Chairman must not exceed
seven years so as not to disrupt the rotational system in the
commission prescribed by Sec. 1(2), Art. IX(D).
In conclusion, there is nothing in Sec. 1(2), Article IX(D) that
explicitly precludes a promotional appointment from
Commissioner to Chairman, provided it is made under the
aforestated circumstances or conditions.
The Court is likewise unable to sustain Villars proposition
that his promotional appointment as COA Chairman gave
him a completely fresh 7- year termfrom February 2008 to
February 2015given his four (4)-year tenure as COA
commissioner devalues all the past pronouncements made
by this Court. While there had been divergence of opinion as
to the import of the word reappointment, there has been
unanimity on the dictum that in no case can one be a COA
member, either as chairman or commissioner, or a mix of
both positions, for an aggregate term of more than 7 years. A
contrary view would allow a circumvention of the aggregate
7-year service limitation and would be constitutionally
offensive as it would wreak havoc to the spirit of the
rotational system of succession.
In net effect, then President Macapagal-Arroyo could not
have had, under any circumstance, validly appointed Villar
as COA Chairman, for a full 7- year appointment, as the
Constitution decrees, was not legally feasible in light of the
7-year aggregate rule. Villar had already served 4 years of
his 7-year term as COA Commissioner. A shorter term,
however, to comply with said rule would also be invalid as
the corresponding appointment would effectively breach the
clear purpose of the Constitution of giving to every appointee
so appointed subsequent to the first set of commissioners, a
fixed term of office of 7 years. To recapitulate, a COA
commissioner like respondent Villar who serves for a period
less than seven (7) years cannot be appointed as chairman
when such position became vacant as a result of the
expiration of the 7-year term of the predecessor (Carague).
Such appointment to a full term is not valid and
constitutional, as the appointee will be allowed to serve more
than seven (7) years under the constitutional ban.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
To sum up, the Court restates its ruling on Sec. 1(2), Art.
IX(D) of the Constitution, viz:
1. The appointment of members of any of the three
constitutional commissions, after the expiration of the
uneven terms of office of the first set of commissioners, shall
always be for a fixed term of seven (7) years; an
appointment for a lesser period is void and unconstitutional.
The appointing authority cannot validly shorten the full term
of seven (7) years in case of the expiration of the term as this
will result in the distortion of the rotational system prescribed
by the Constitution.
2. Appointments to vacancies resulting from certain causes
(death, resignation, disability or impeachment) shall only be
for the unexpired portion of the term of the predecessor, but
such appointments cannot be less than the unexpired
portion as this will likewise disrupt the staggering of terms
laid down under Sec. 1(2), Art. IX(D).
3. Members of the Commission, e.g. COA, COMELEC or
CSC, who were appointed for a full term of seven years and
who served the entire period, are barred from reappointment
to any position in the Commission. Corollarily, the first
appointees in the Commission under the Constitution are
also covered by the prohibition against reappointment.
4. A commissioner who resigns after serving in the
Commission for less than seven years is eligible for an
appointment to the position of Chairman for the unexpired
portion of the term of the departing chairman. Such
appointment is not covered by the ban on reappointment,
provided that the aggregate period of the length of service as
commissioner and the unexpired period of the term of the
predecessor will not exceed seven (7) years and provided
further that the vacancy in the position of Chairman resulted
from death, resignation, disability or removal by
impeachment. The Court clarifies that reappointment found
in Sec. 1(2), Art. IX(D) means a movement to one and the
same office (Commissioner to Commissioner or Chairman to
Chairman). On the other hand, an appointment involving a
movement to a different position or office (Commissioner to
Chairman) would constitute a new appointment and, hence,
not, in the strict legal sense, a reappointment barred under
the Constitution.
5. Any member of the Commission cannot be appointed or
designated in a temporary or acting capacity
2. Fiscal Autonomy
Their budget, like the judiciary, cannot be reduced even to a
single cent once it is appropriated in the last fiscal year.
Question: Is Commission of Human Rights (CHR) like
the abovementioned commissions, a constitutional body?
Answer: No. It is a statutory body mandated to be
created by the constitution. It is not accorded with fiscal
autonomy like COA, CSC and COMELEC.
3. Promulgation of Own Rules Governing Their
Procedure and Pleading that May Be Filed with these
ConCom
- They have that power. However if it will go into pleadings
that may be filed in the courts, the ConCom dont have that
power. Remember that case of Aruego vs COMELEC,
where there was a prohibition against filing a certain
pleading in the courts and the SC said you cannot do that.
You are already encroaching into the prerogative of the
courts, specifically the SC in promulgating its owns rules
governing the pleadings in the court. You should not then
interfere or conflict with rules that govern the courts.
4. The matter of appointing it own employees
They also have the matter of appointing their own
employees and officials in accordance with the civil service
just like the other constitutional practice to ensure their
independence. Also the matter of their salaries being fixed
by law and it cannot be decreased during the continuance of
their office.
Judgments Of Constitutional Commissions
- are appealable directly to the Supreme Court.
-The only question to be raised there is question of
law and determination whether or not there has been a
grave abuse of discretion amounting to lack or excess
of jurisdiction. Which means that to ensure their
independence as far as factual findings of the
commission are concerned, they are conclusive and
binding upon the SC because what is left to be
determined by the SC in so far as decisions of the
constitutional commissions as a general rule will be
limited on pure questions of law and determination of
grave abuse of discretion. The exception however is
with the Civil service. The civil service in so far as those
are questions of facts must first pass through the court
of appeals before it goes to the supreme court. Thats
the only thing with regards to the difference with the
other 2 constitutional commissions.
CIVIL SERVICE COMMISSION - CSC
Function it is the central personnel agency of the
government
It is for them to attest whether or not the person appointed by
the president or any appointing authority for that matter has
the minimum qualifications described by law.
You take note of the classification of positions based on
the revised administrative code. This will be taken up
again in the administrative law together with the other
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
subjects in political law. I will not go into details, only those
which relate to the constitution, the career service and non-
career service.
1.The career service could be open career, close
career or career officers or positions in the AFP, personnel
of the GOCC and permanent laborers.
2. Non career are those positions that are based on
other than on competitive examination. It could be such as
like elective officials are non career, theres no room for
promotion, you cannot be promoted as a matter of right from
a brgy captain to a governor, you have to run for election.
Qualification is not based on educational attainment, you
may be a law student but you are not an elementary
graduate not even finishing highschool now a congressman.
There are no qualifications, and the tenure is limited on
certain period of time fixed by law.
Take note of the different kinds of officials. I will not go on the
details on that.
BAR: the guaranty of security of tenure on employees
covered by the civil service. This includes GOCC with
original charter; they are covered by the civil service law. For
corporations that are created by general law, they are
governed by the corporation code or by the laws on the
employer employee relationship, but if it is a corporation with
original charter, it is governed by the civil service law.
Discussion: you should remember some of the rights when
you are an employee of the government, you enjoy security
of tenure.
What is security of tenure?
That means that you can only be removed for
grounds provided for by law. And there should be a
hearing before you are removed from office, demoted or
transferred. At the time of security of tenure, your
qualifications to the position with the corresponding
requisite eligibility must concur in order to demand that
right to security of tenure.
What does it mean? You can be a lawyer but the
position as a regional director requires that you should
be a CES eligible, meaning you have a career executive
eligibility. Because if you dont have that, you dont
enjoy security of tenure even if you are a lawyer
because the position does not require a lawyer but a
career eligible officer, in which case, you cannot
demand security of tenure as a matter of right. Or you
can be a career executive eligible, but your position
does not require that eligibility, all that it requires is a
specific qualification.
All that it requires is a specific qualification. For
example, director of PAGASA, you have to be this
engineer. Youre a lawyer and you have nothing to
do with the weather. But youre a lawyer and
appointed as director of PAGASA, do you enjoy
security of tenure? NO because the position
requires specific qualifications.
GR: Prohibition against double or additional compensation,
Except if you are retired from the government and thereafter
you get employment with the government and you get
compensation from new employment, there is no double
compensation there.
Removal from office, won entitled to reinstatement
and back wages:
- Preventive suspension: general rule, no
reinstatement unless the order specifically
states that you are entitled to back wages
- Dismissed from service, you appealed, then
you got sustained by the appellate court:
reinstatement and back wages from the time
of dismissal even if there is a pending MR, it
is immediately executory
- Dismissed for 10 years: for as long as
dismissal is not illegal, done in bad faith or
grave abuse of discretion, NO back wages.
- Retired: back wages and full retirement
benefits especially if the dismissal is illegal
Elective official cannot occupy any other position in
the government unless it is allowed by law or by
virtue of function of your office, you also perform
the function of that office.
- Members of congress are also members of
electoral tribunal and judicial bar and council
- VP may be appointed by the president in the
Cabinet
Prohibition against appointed of defeated candidate in
the last preceding election (1 year ff the election where he
lost)
- He is prohibited from occupy any position in
the government
Question: Who determines whether the position in the
government is confidential or not?
Answer:
- President or CSC (Civil Service
Commission)
Primarily confidential positions
1. when the president declares the position to be primarily
confidential upon the recommendation by the civil service
commission
2. when by nature of the function there exist close intimacy
between the appointing authority and the appointee which
insures the freedom of intercourse without embarassment or
freedom from misgivings or deleterious of personal trust or
confidential matters of state
The right of the employees of a Government to join in unions.
that is guaranteed as a Constitution rights. that is in the bill of
rights.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Question: are they prohibited to join concerted
activities such as to strike.
Answer: it is not prohibited by constitution but it its
prohibited by law.
Take note the case of SSS employees association v
court of appeals.
while the constitution and the labor code are silent to
whether or not government employees may strike, they are
prohIbited from striking by express provision of
memorandum circular no. 6 series of 1997 of the civil service
commission and as implied by executive order 180
COMMISSION ON ELECTOIN - COM
COMELEC
- it is enforce the election law. to ensure that there
would be an honest clean and orderly election.
Question what is important then with the COMELEC?
Answer:
1. aside from enforcement,
2. is on the registration of political parties and
accreditation of organizations in the party list (you read this
in relation RA 7491) On registration, generally you cannot
register an organization or party that represents the religious
sector
3. they may also regulate public utilities media
franchises especially during the election period
Question: whether COMELEC can cite anyone power
to contempt. does COMELEC have contempt power?
Answer: read the case of bedol v. COMELEC. Yes.
when it is exercised in quasi-judicial function. The
investigation of bedol was considered as quasi- judicial
function perform by the COMELEC when he was cited in
contempt
Bedol vs. COMELEC
FACTS: As Chair of the Provincial Board of Canvassers
(PBOC) for the province of Maguindanao, the respondent
[petitioner] discharged his official functions and was able to
ensure the PBOCs performance of its ministerial duty to
canvass the Certificates of Canvass coming from the twenty
two (22) city and municipalities in the province.
At that time, respondent [petitioner] also was charged with
the burdensome and gargantuan duty of being the
concurrent Provincial Elections Supervisor for the Province
of Shariff Kabunsuan a neighboring province of
Maguindanao.
Respondent [petitioner] Bedol failed to attend the scheduled
canvassing of the Provincial Certificates of Canvass (PCOC)
of Maguindanao of which he is the Provincial Election
Supervisor which was slated on May 22, 2007.
On May 25, 2007, respondent appeared before the
Commission, en banc sitting as the National Board of
Canvassers (NBOC) for the election of senators to submit
the provincial certificate of canvass for Maguindanao,
pursuant to his functions as Provincial Elections Supervisor
and chair of the PBOC for Maguindanao. Due to certain
observations on the provincial certificates of canvass by
certain parties, canvassing of the certificate was held in
abeyance and respondent was queried on the alleged fraud
which attended the conduct of elections in his area.
He was already informed of the resetting of the canvassing
for May 30, 2007, but failed to appear despite prior
knowledge.
Respondents [petitioner] contention:
Bedol explained before the Task Force during its June 11,
2007 fact finding activity that, while in his custody and
possession, the election paraphernalia were stolen
sometime on May 29, 2007, or some fifteen (15) days after
the elections. This was the first time such an excuse was
given by the respondent [petitioner] and no written report
was ever filed with the Commission regarding the alleged
loss.
Due to absences in the next scheduled investigative
proceedings and due to failure and refusal to submit a
written explanation of his absences, respondent [petitioner]
was issued a contempt charge by COMELEC.
Petitioner was later arrested by members of the Philippine
National Police on the basis of an Order of Arrest issued on
June 29, 2007 by the COMELEC after petitioner repeatedly
failed to appear during the fact-finding proceedings before
Task Force Maguindanao.
Petitioner questioned the COMELECs legal basis for issuing
the warrant of arrest and its assumption of jurisdiction over
the contempt charges. Nevertheless, he was declared in
contempt by COMELEC.
Petitioner, then, filed a motion for reconsideration which was
denied by the COMELEC in the other assailed Resolution
dated August 31, 2007.
ISSUE: Whether or not the initiation and issuance of
contempt order is within the constitutional powers of the
COMELEC.
RULING:
Powers of COMELEC
The COMELEC possesses the power to conduct
investigations as an adjunct to its constitutional duty to
enforce and administer all election laws, by virtue of the
explicit provisions of paragraph 6, Section 2, Article IX of the
1987 Constitution, which reads:
Article IX-C, Section 2. xxx
(6) xxx; investigate and, where appropriate, prosecute cases
POLITICAL LAW REVIEW: JUDGE SINGCO | BATCH 2016
 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
of violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
The powers and functions of the COMELEC, conferred upon
it by the 1987 Constitution and the Omnibus Election Code,
may be classified into administrative, quasi-legislative, and
quasi-judicial. The quasi-judicial power of the COMELEC
embraces the power to resolve controversies arising from
the enforcement of election laws, and to be the sole judge of
all pre-proclamation controversies; and of all contests
relating to the elections, returns, and qualifications. Its
quasi-legislative power refers to the issuance of rules and
regulations to implement the election laws and to exercise
such legislative functions as may expressly be delegated to
it by Congress. Its administrative function refers to the
enforcement and administration of election laws. In the
exercise of such power, the Constitution (Section 6, Article
IX-A) and the Omnibus Election Code (Section 52 [c])
authorize the COMELEC to issue rules and regulations to
implement the provisions of the 1987 Constitution and the
Omnibus Election Code.
The quasi-judicial or administrative adjudicatory power is the
power to hear and determine questions of fact to which the
legislative policy is to apply, and to decide in accordance
with the standards laid down by the law itself in enforcing
and administering the same law.
The exercise of judicial functions may involve the
performance of legislative or administrative duties, and the
performance of and administrative or ministerial duties, may,
in a measure, involve the exercise of judicial functions. It
may be said generally that the exercise of judicial functions
is to determine what the law is, and what the legal rights of
parties are, with respect to a matter in controversy; and
whenever an officer is clothed with that authority, and
undertakes to determine those questions, he acts judicially.
The language of the Omnibus Election Code and the
COMELEC Rules of Procedure is broad enough to allow the
initiation of indirect contempt proceedings by the COMELEC
motu proprio. Furthermore, the above-quoted provision of
Section 52(e), Article VII of the Omnibus Election Code
explicitly adopts the procedure and penalties provided by the
Rules of Court.
Findings of guilt of indirect contempt
Petitioner was found guilty of contempt on four (4) grounds.
First, he repeatedly failed to attend, despite notice of the
scheduled[12] canvassing of the Provincial Certificates of
Canvass, the hearing of the Task Force Maguindanao; and
refused to submit his explanation for such absences, which
he had undertaken to submit, in violation of paragraphs (b)
and (f) of Section 2, Rule 29 of the COMELEC Rules of
Procedure.
Second, he unlawfully assumed custody of accountable
election documents, which were lost while in his possession,
and consequently failed to deliver the same, in violation of
paragraphs (a), (c) and (d) Section 2, Rule 29 of same
Rules.
Third and fourth, he publicly displayed disrespect for the
authority of the COMELEC through the media (interviews on
national television channels, and in newspapers and radios)
by flaunting an armory of long firearms and side arms in
public, and posing for the front page of a national
broadsheet, with a shiny pistol tucked in a holster, in
violation of paragraphs (a) and (d), Section 2, Rule 29 of
same Rules.
WHEREFORE, the petition is hereby DISMISSED and the
prayer for a Temporary Restraining Order and/or a Writ of
Preliminary Injunction is hereby DENIED. No costs.
Question: what is the election period?
Answer: not earlier than 90 days not later than 30 days after
the date of election
Question: who has the power to fix the election period? As
regards to the fixing of the date of elections, is it the
president or the congress or the COMELEC?
Answer: take note the case of Maguindanao v The Senate.
this was the postponement of the election in maguindanao.
whethere or not it is for the COMELEC to change the
election. Supreme Court said that the power to fix the
date of elections is essentially legislative in nature as
evidenced and exemplified by provisions of the constitution
such as the section 8 of article 6 section 4 paragraph 3 of
article 7
CONTROVERSY OF LEADERSHIP
LDP vs COMELEC. The identity of a political party
and its legitimate officers is a matter well within its
authority. The source of authority is the Constitution,
fundamental law itself which vests to the COMELEC
the powers to force and administer all laws and rules
relative to the conduct of an election. Therefore
question of leadership is a function of the
COMELEC (to resolve), COMELEC has jurisdiction.
MEMBERSHIP OF POLITICAL PARTY
Ex. Exclusion of a member as part of disciplining its
members
Atienza vs COMELEC. COMELEC has no
jurisdiction over questions of party membership
such as exclusion. As part of its (political partys)
discipline, COMELEC cannot interfere even in
limited scope.
PROMULGATING RULES RELATING TO CONDUCT OF
ELECTION
Lim Kai Chong vs COMELEC. Like Resolution
8062 which provides that the candidate which
disqualification cases are still pending and he
obtained the highest number of votes, there can be
the proclamation without prejudice to the
continuation of the hearing and the resolution of the
involved cases.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
JURISDICTION OF THE COMELEC
-Original or Appellate
Baranggay position protests
file with first level courts, MTC; appeal to
COMELEC in its appellate jurisdiction. If he lost his
case before the COMELEC, it becomes final, cannot
anymore be appealed. Unless there is allegation of
grave abuse of discretion amounting to lack or
excess of jurisdiction.
Municipal election contests
File with RTC; appeal to COMELEC in its appellate
jurisdiction. If he lost the case before the COMELEC,
it becomes final, cannot be appealed. . Unless there
is allegation of grave abuse of discretion amounting
to lack or excess of jurisdiction.
City election contests
File with COMELEC in its original jurisdiction. If case
lost before the COMELEC, must first file a motion for
reconsideration to be resolved by COMELEC en
banc, because at first, the decision of the
COMELEC is by division. All adjudicatory cases are
resolved by COMELEC in division. It is a condition
precedent that before you appeal to the SC, you
must file a motion of reconsideration before the
COMELEC en banc. Only the decisions of the
COMELEC en banc can be appealed before the SC.
Provincial election contests
Same with the city. File with COMELEC in its
original jurisdiction. Appeal is to the SC subject to
the condition that he must first file a motion for
reconsideration to be resolved by COMELEC en
banc.
Autonomous Region election contests
Still the same. File with COMELEC in its original
jurisdiction. Appeal is to the SC subject to the
condition that he must first file a motion for
reconsideration to be resolved by COMELEC en
banc.
Kabataang Barangay election contests
File with DILG not COMELEC.
COMMISSION ON AUDIT - COA
Question:What is the function of COA?
Answer: It is the watchdog of government funds
and expenditures of the government.
Question:How do they conduct audit? What are
the 2 kinds of audits?
Answer: Pre-audit and post-audit.
Question:What is post audit? pre-audit?
Answer: In post audit, you spend the money first
and then later, we are going to review whether your
expenditure is reasonable or in accordance with law.
That's post-audit.
Answer: In pre-audit, before you spend the money,
pass through us first we are going to review whether it is
supported with funds and whether or not you follow
procedure in the matter of procuring the project or that
item.
Question:Which one is mandatory?
Answer: We think both is mandatory. It is not the
case. Only post-audit is required by the Constitution.
Especially the constitutional bodies and the local
government units. Post-audit is mandated by the
Constitution.
Question:Can COA be compelled to conduct
pre-audit?
Answer: This is now the case of De la Llana vs
COA (2012 case). Supreme Court said that there is
nothing in the said provision that requires the COA to
conduct a pre-audit of all the government transactions
and for all government agencies. The only clear
reference to a pre-audit requirement is on section 2
paragraph 1, which provides that post-audit is
mandated for certain government or private entity which
takes subsidy or equity and only when the internal
control system of an audited entity is inadequate. In
such a situation, the COA may adopt measures
including temporary or special pre-audit to correct the
deficiencies. Thus the conduct of a pre-audit is not a
mandatory duty that the Supreme Court may compel
COA to perform. This discretion on its part is the line
with the constitutional pronouncement that the COA has
the exclusive authority to define the scope of its audit
and examination. When the language of the law is clear
and explicit, there is no room for interpretation.
In other words, ang scope of audit, that is exclusive to COA
to determine. But theirs is only post-audit, not pre-audit.
Question: What else is exclusive to COA?
Answer: The manner of conducting. How the audit
should be conducted. That is exclusive to the COA. The
promulgation of rules regarding on examination and audit.
That is exclusive to COA. Not even Congress can interfere.
If COA says before you can procure an item it has to be
bidded, that has to be followed, because that is exclusive to
COA. Congress cannot pass a law removing that
requirement. That would interfere into the discretion of COA
to fix the rules regarding on the conduct of its audit.
Another Point. The Subject Of The Authority Sa
Post-Audit.
1. You have constitutional bodies,
2. GOCCs, and
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
3. Non-governmental entities.
Pangutana, kung non-governmental? It is subject to audit,
only when it is receiving subsidy from the government or
when the funds that it is handling are public funds. So you
read the case of Blue Bar Coconut Philippines vs
Tantuico.
Section 2: Power and Functions
Examine and audit government revenues
Examine and audit government expenditures
Doctrine: post-audit authority
Case: Blue Bar Coconut Phils v Tantuico
Facts:
Sometime in 1976, the respondent Acting Chairman
of the Commission on Audit initiated a special audit of
coconut end-user companies, which include herein
petitioners, with respect to their Coconut Consumers
Stabilization Fund levy collections and the subsidies they
had received.
As a result of the initial findings of the Performance
Audit Office with respect only to the petitioners, respondent
Acting COA Chairman directed the Chairman, the
Administrator, and the Military Supervisor of PCA and the
Manager of the Coconut Consumers Stabilization Fund, in
various letters to them (Annexes G-2 H, I, J, L and N of
petition) to collect the short levies and overpaid subsidies,
and to apply subsidy claims to the settlement of short levies
should the petitioners fail to remit the amount due.
Issues:
Whether or not the respondent COA Chairman may
disregard the PCA rules and decisions has become moot.
Decision:
In the case at bar, the petitioners have failed to
show that acts were done with grave abuse of discretion
amounting to lack of jurisdiction. Case dismissed.
Petitioners contend that they are outside the ambit
of respondents' "audit" power which is confined to
government-owned or controlled corporations.
Section 2 (1) of Article IX-D of the Constitution
provides that "The Commission on Audit shall have the
power, authority and duty to examine, audit, and settle all
accounts pertaining to the revenues 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 corporation with original
charters, and on a post-audit basis. ... (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." (Emphasis
supplied) The Constitution formally embodies the long
established rule that private entities who handle government
funds or subsidies in trust may be examined or audited in
their handling of said funds by government auditors. n view
of the above considerations, we apply the principle of
primary jurisdiction:
In cases involving specialized disputes, the trend has been
to refer the same to an administrative agency of special
competence. As early as 1954, the Court in Pambujan Sur
United Mine Workers v. Samar Mining Co., Inc. (94 Phil.
932,941), held that under the sense-making and expeditious
doctrine of primary jurisdiction ... the courts cannot or will not
determine a controversy involving a question which is within
the jurisdiction of an administrative tribunal prior to the
decision of that question by the administrative tribunal,
where the question demands the exercise of sound
administrative discretion requiring the special knowledge,
experience, and services of the administrative tribunal to
determine technical and intricate matters of fact, and a
uniformity of ruling is essential to comply with the Purposes
of the regulatory statute administered." Recently, this Court
specaking thru Mr. Chief Justice Claudio Teehankee said
that "In this era of clogged court dockets, the need for
specialized administrative boards or commissions with the
special knowledge, experience and capability to hear and
determine promptly disputes on technical matters or
essentially factual matters, subject to judicial review in case
of grave abuse of discretion, has become well nigh
indispensable." The court reminds us that The legal
presumption is that official duty has been duly performed.
Corporations covered by COA's auditing power are not
limited to GOCCs. Where a private corporation or entity
handles public funds, it falls under the COA's jurisdition.
"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."
They are required to submit to post-audit.
Another point. Is the auditing exclusive to COA?
The answer is no. A private accounting firm may
concurrently conduct an audit with COA.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
You have the case of DBP vs. COA, where the Supreme
Court said that the mere fact that private auditors may audit
the government agencies does not divest the COA of its
power to examine and audit the same government agencies.
COA does not have the exclusive power to examine and
audit government agencies. The framers of the Constitution
were fully aware of the need to allow independent private
audit of certain government agencies in addition to the COA
audit, as when there is a private investment in a government
controlled corporation or when government corporation is
privatized or publicly-listed or as in the case at bar, the
government borrows money from abroad. The IMF does not
trust the government, including COA, so they rather have
another accounting firm to do the audit. But in case of coflict,
COA prevails due to the presumption of regularity in the
performance of their duty. The privating auditing firm does
not have that presumption, they have to prove that their audit
is accurate and correct. That is the only advantage of COA.
Subject of the audit are only liquidated funds.
Unliquidated funds are for the court to decide. Kung muingon
kag liquidated funds, naay kwarta and amount. Kung
muingon lang ka nga ah! Mura man tog 100 Million. Way
klaro na. You have to itemize and there is a specific amount.
Liquidated na siya. Those are the amounts that are subject
of audit. Kung questionable pa ganeh ang amount involved
for audit, you can contest it. You cannot contest that in COA
for they do not have the power, such power lies with the
courts.
Take note of the case of De Llana vs. The Chairperson,
G.R. no. 180989, February 7, 2012 and Funa vs. The
Chairman, COA, G.R. no. 192791, April 24, 2012, in
relation to the appointment of the Commissioner. These are
the most recent cases involving COA.
GUALBERTO J. DELA LLANA v. THE CHAIRPERSON,
COMMISSION ON AUDIT, et al.
G.R. No. 180989, 7 February 2012, EN BANC (Sereno, J.)
There is nothing in the Constitution that requires
the Commission on Audit to conduct
a pre-audit of all government transactions and for all
government agencies.
Petitioner Gualberto Dela Llana, as a taxpayer,
wrote to the Commissionon Audit (COA) regarding the
recommendation of the Senate Committee onAgriculture
and Food that the Department of Agriculture set up an
internalpre-audit service. The COA replied to Dela Llana
informing him of the priorissuance of Circular No. 9-299
which provides that whenever the circumstances warrant,
the COA may reinstitute pre-audit or adopt such other
control measuresas necessary and appropriate to protect
the funds and property of an agency.
Dela Llana filed a petition for certiorari alleging
that the pre-audit duty onthe part of the COA cannot be lifted
by a mere circular, considering that the pre-audit is a
constitutional mandate enshrined in Section 2 of Article IX-D
of the1987 Constitution.
ISSUES:
1. Whether or not the petition for certiorari filed by Dela Llana
is proper
2. Whether or not it is the constitutional duty of COA to
conduct a pre-audit before the consummation of government
transaction
HELD:
The petition for certiorari filed by Dela Llana is not proper
Dela Llana is correct in that decisions and orders of
the COA are reviewable by the Court via a petition for
certiorari. However, these refer to decisions and orders
which were rendered by the COA in its quasi-judicial
capacity. Circular No.89-299 was promulgated by the COA
under its quasi-legislative or rule-making powers. Hence,
Circular No. 89-299 is not reviewable by certiorari.
Nonetheless, the Court has in the past seen fit to
step in and resolve petitions despite their being the subject
of an improper remedy, in view of the public importance of
the issues raised therein. In this case, Dela Llana averred
that the conduct of pre-audit by the COA could have
prevented the occurrence of the numerous alleged
irregularities in government transactions that involved
substantial amounts of public money. This is a serious
allegation of a grave deficiency in observing a constitutional
duty if proven correct. The Court can use its authority to set
aside errors of practice or technicalities of procedure,
including the aforementioned technical defects of the
petition, and resolve the merits of a case with such serious
allegations of constitutional breach.
It is not the constitutional duty of the COA to conduct a
pre-audit
Dela Llana claimed that the constitutional duty of
COA includes the duty to conduct pre-audit. A pre-audit is an
examination of financial transactions before their
consumption or payment. It seeks to determine whether the
following conditions are present: (1) the proposed
expenditure complies with an appropriation law or other
specific statutory authority; (2) sufficient funds are available
for the purpose; (3) the proposed expenditure is not
unreasonable or extravagant, and the unexpended balance
of appropriations to which it will be charged is sufficient to
cover the entire amount of the expenditure; and (4) the
transaction is approved by the proper authority and the claim
is duly supported by authentic underlying evidence. It could,
among others, identify government agency transactions that
are suspicious on their face prior to their implementation and
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
prior to the disbursement of funds.
Dela Llanas allegations find no support in the
Section 2 of Article IX-D of the 1987 Constitution. There is
nothing in the said provision that requires the COA to
conduct a pre-audit of all government transactions and for all
government agencies. The only clear reference to a
pre-audit requirement is found in Section 2, paragraph 1,
which provides that a post-audit is mandated for certain
government or private entities with state subsidy or equity
and only when the internal control system of an audited
entity is inadequate. In such a situation, the COA may adopt
measures, including a temporary or special pre-audit, to
correct the deficiencies.
Hence, the conduct of a pre-audit is not a
mandatory duty that this Court may compel the COA to
perform. This discretion on its part is in line with the
constitutional pronouncement that the COA has the
exclusive authority to define the scope of its audit and
examination. When the language of the law is clear and
explicit, there is no room for interpretation, only application.
Neither can the scope of the provision be unduly enlarged by
this Court.
In addition to that, it states here that orders and decisions of
COA are reviewable by the Supreme Court via petition for
certiorari. However, this refers to decisions and orders
rendered by COA in its quasi-judicial capacity.
What was questioned here was Circular no. 89299 regarding
on the matter for COA to conduct a pre-audit. There was a
resolution by COA saying that they do not conduct pre-audit
and that resolution was appealed and its validity was
questioned.
Is that resolution appealable to the Supreme Court on
certiorari?
The answer is no for that is not pertaining to the exercise of a
quasi-judicial function of COA. Neither can the scope of the
provision be unduly enlarged by the Supreme Court.
**Note: Gibalik-balik gyud ni Judge ang kanang orders and
decisions rendered in its quasi-judicial capacity. Murag
importante gyud ni
LOCAL GOVERNMENT
What are your political subdivisions?
Wa pa nang Bangsamoro, it is still
1. Autonomous Regions,
2. Provinces,
3. Cities,
4. Municipalities and
5. Barangays.
NOTE: MMDA is not included, it is an administrative
coordinating agency.
1. They enjoy local autonomy,
a) which means that there cannot be a state within a
state. These local government units are still
dependent upon the national government. There
may be decentralization, but what is decentralized
is administration only and not the powers. What we
actually practice is devolution of the services, more
than anything else, from the national government
to local.
Sources of Income of Local Government Units: (take
note for the Bar Exams)
1. Local governments can levy their own taxes and
raise revenue including the barangays this means
that this is self-executing. It does not need
legislation in order to execute or implement that
provision of the law. So barangays now can levy
taxes, so pass dayon ug ordinance, hala tanan
kahayupan diha kay himuon subject to tax.
Can you question the validity that it has no
authority? No.
But are there laws limiting the exercise of
the taxing powers of Barangay? Yes,
definitely. In other words, there may be no
law that confers such power to the local
government units, including the barangay,
Congress is not precluded from passing a
law that limits the exercise of their power.
2. Another source of income, you have the share from
IRA, the IRA is internal revenue management,
after determination of amount to be given, it is
ministerial on the part of the national government to
release it to the lgu.
3. Another, you have the share from exploration
utilization and development of natural resources
by the national government in your territorial
land. The land and the resources are not owned by
you. Theyre owned by the state. The reason the sc
case in the case of Malampaya said that the
province of Palawan has the right to a share of the
income of malampaya in the exploration. So DOA
was given order by sc to give share to the province
of Palawan.
On local autonomy, lets go back to Cash Transfers, while it
is true that we practice local autonomy, it does not mean the
national government is precluded from passing laws
especially if it is beneficial to the lgu, theres no violation
there of local autonomy.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Question: With regards to creation of local government
units, the provinces, cities, municipalities and barangay.
Who Creates barangays, cities or municipalites?
Answer:
Province it is congress that creates province.
o What are the requirements, take note of the
provisions of the lgc.
You have to take note of the area,
income and population. These 3.
o Theres this one case of Navarro vs
Executive Sec Ermita regarding on the
creation of Dinagat Island as a province
because they did not comply with reqt as
area but it was sustained because reqt in lgc
is 2000 sq km. theirs is less than that
becaue it was not contiguous and consists
of island and islets so exempt as long as
only reqt is it self sustaining can sustain as
its own as lgu.
Can it sue and be sued?
Yes it is provided in the lgc. It can sue and be sued
But liability on the public funds, you need consent
and thus reqt of supplemental budget to be passed
before it is compelled to pay from its public funds.
As to the rest, it will be discussed when you go to lgc.
CITIZENSHIP
Who are Phil Citizens? MEMORIZE section 1!
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
[4] Those who are naturalized in accordance with law.
In the first paragraph, you make reference to the
treaty of paris. Then you have the 1935 then the
1973 constitution.
Then you have the second paragraph, those whose
fathers or mothers are citizens of the phils at the
time of adoption of 1973 constitution (effectivity: Jan
17, 1973) follow jus sangguinis
Those who elected pursuant to provision of 1935
constitutions involving a Filipina married to foreigner.
In 1935 constitution, she lost her Filipino citizenship
in which case during the minority of her child, he is
foreigner but given option upon 21 not 18 or any
reasonable of time to elect Philippine citizenship.
Those who are naturalized in accordance with law.
You have 2 ways by which you can be naturalized
like judicial and administrative. There is also
legislative. What is asked in bar is the administrative
way of being considered Filipino citizen. If you have
been born in the Phils, your foreign parents you
have option to go through judicial or administrative
process to become phil citizen and this law is r.a.
9139. (I think this will be asked in the bar exam
especially because of the citizenship of grace po)
Considered of being a Filipino citizen. What is this law,
class?
Recall this law that if you have been born in the Philippines,
to Foreign parents, you will have the option to go through
judicial process or administrative process in order to
become a Filipino citizen.
Take note of this law, because we had it a long time ago.
This is an administrative naturalization, R.A. 9139. It
grants Philippine citizenship through administrative
proceedings to aliens born and residing in the Philippines.
They have the choice to apply for judicial or administrative
naturalization subject to the strict qualifications and
disqualifications.
On judicial process, who has jurisdiction?
It is RTC. First you file you intention to apply for Filipino
citizen to the office of the SolGen, if there is a go signal then
the proceedings in the RTC shall commence. The only thing
that you should take note in judicial proceedings is that they
are very strict on this, CA 63 (37, 470?), there are
qualifications where it prescribes strict qualifications. You
have to have all of them and none of the disqualifications.
The more important part here is when judgment is rendered
in your favor, you have to wait for one year before you take
your oath of allegiance or before you are issued the decree
of naturalization, if granted there is never any finality to that.
Anytime it can be revoked/removed by the court.
Now what is important here guys is on the effect, if you
become a naturalized Filipino citizen, what would be the
effect to your children.
So assuming Grace Poe has acquired her
citizenship, is it naturalization? Hers is not, it is
renunciation and repatriation in her case. In
naturalization sometimes it is required of Filipinos who
have lost their citizenship because they have applied for
naturalization in another country.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
This is what happened to (Kimbagyo?) that faith
healer, he was not allowed to repatriate or go through
repatriation. He was required to go through
naturalization to reacquire his Filipino citizenship. When
you go through naturalization and if granted, you
become naturalized Filipino citizen, not natural-born.
Your wife and children also become Filipino citizens,
naturalized. They can not have different citizenship from
you, they derive their citizenship from you. This is what
we call derivative citizenship. Now what about those
already of age? Then they remain as foreigners unless
they apply also for naturalization.
Later we will explain on Dual Citizenship Act, the
and in so far as judicial. if there is a question on the
validity of the naturalization proceedings, can it be
anyone who can question the validity of your
naturalization? Answer is no. Only the government can
question the validity of your naturalization.
That was the case in the Limkaichong.
So in this case, it will be the Solicitor General to
question the validity of the naturalization and if it would
not be in any court, it may be in the RTC or where the
case was filed for purposes of revocation but it should
be before the naturalization tribunal. Usually it is in the
bureau of immigration wherein there is an office there
that handles these kinds of cases. In the case of
Limkaichong if you can remember, the ground for
disqualification was because the fathers naturalization
was invalid. So if the fathers naturalization was invalid,
that does not make her a Filipino citizen. She was born
after the father was naturalized. So supposedly, she
was natural-born because at the time she was born, her
father was naturalized. But if it was invalid, the father
remains Chinese and that also makes her Chinese. So
what happened? Question here was if HRET could take
cognizance over the disqualification case. It was
Villando and Paras who filed the case in HRET.The SC
was saying that even if it is exclusive, because the
disqualification was based on the validity of the
naturalization, the HRET has no authority to make a
judgment whether or not the naturalization was valid or
invalid. It was only the naturalization tribunal which has
the exclusive power to determine the validity of the
naturalization. Thus, the case was dismissed.
Another point as to the naturalization.
This pertains to a Filipino married to a foreigner. Let us say
Filipino gay married to a foreigner. Does this foreigner
automatically become Filipino? No. You do not adopt the
citizenship of your husband so she has to apply for
naturalization but it is administrative only. So he has to go to
the Bureau of Immigration for the cancellation of his ACR.
She has to prove that she suffers none of the
disqualifications. If it is male (husband) who is the foreigner,
he does not automatically become a Filipino. It is not
administrative process; he has to apply for naturalization.
Modes of acquiring citizen in the Philippine.
1. Jus saguinis is by blood or blood relationship. So if your
father and mother are Filipino citizens, the child is
automatically a Filipino citizen.
Lets talk about this consequence to this dual
citizenship and dual allegiance.
RA 9225 is the law for the dual citizenship. If there was
a Filipino who lost his citizenship in a foreign country
because of naturalization, any chance for him to reacquire
his citizenship? Yes. By naturalization or repatriation.
On naturalization, it could be judicial or administrative.
For repatriation, it only involves former natural-born
Filipino citizens. There are grounds of repatriation. It is not
available to anybody. Reasons are theres a political
necessity, that you are deemed to have lost your citizenship
when you married a foreigner and now you are a widow or if
you have served the armed forces during the WWII and
lastly, if you applied for naturalization in a foreign country.
As regards to RA 9225, there are no specific grounds
provided. So before, it was very strict.
What would then be the consequence?
You are considered to be a Filipino Citizen since birth, as if
you never lost your citizenship.
GRACE POE SCENARIO: Maybe this is what happened to
Grace Poe.
What does she need to do to be repatriated? She should
take oath of allegiance and register that with the Civil
Registry.
What if you failed to take that oath of allegiance?
Take note, I'm referring to one whose father is foreigner,
but the mother is Filipino, then she is borne under 1935
Constitution, but fails to take the oath of allegiance upon
reaching the age of majority. Now he wants to become a
Filipino.
Now, can you file a case in court to declare her to have her
take her oath of allegiance?
RP vs. Sagun- Is there a procedure such as you being
declared as having taken the oath of allegiance?
SC said " there is no specific statutory or procedural rule
which authorizes the direct filing of a petition for declaration
of election of Philippine citizenship before the courts...C.A.
No. 625 says that the election should be made generally
within three (3) years from reaching the age of majority."
So, once you lost the opportunity, forever it's lost. In which
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
case, you file for naturalization, no longer the repatriation
process.
On the other hand, you have TAKEN THE OATH of
allegiance but FAILED TO REGISTER it in the Civil Registry.
Question, do you lose your citizenship because you failed to
register?(we're talking about Foreigner father and Filipino
mother born under 1935).
SC said in Mam vs. Fernandez (July 26, 2010)-
"We are guided by this evolvement from election of
Philippine citizenship upon reaching the age of majority
under the 1935 Philippine Constitution to dispensing with the
election requirement under the 1973 Philippine Constitution
to express classification of these children as natural-born
citizens under the 1987 Constitution towards the conclusion
that the omission of the 1941 statutory requirement of
registration of the documents of election should not result in
the obliteration of the right to Philippine citizenship.
Having a Filipino mother is permanent. It is the basis of the
right of the petitioners to elect Philippine citizenship.
Petitioners elected Philippine citizenship in form and
substance. The failure to register the election in the civil
registry should not defeat the election and as a result
negate the permanent fact that they have a Filipino mother."
Let's go back to DUAL CITIZENSHIP-
Let's talk about losing Filipino citizenship due to
naturalization in a foreign country. You can reacquire it thru:
1. Repatriation-
a) You just have to take an of allegiance again and
register it to the Civil Registry. It should indicate
that the oath of allegiance was made to the Special
Committee in Naturalization in the Bureau of
Immigration.
2. Naturalization-
a) So you have acquired your citizenship na ha under
9225(CITIZENSHIP RETENTION AND
RE-ACQUISITION ACT OF 2003). Take note, your
minor children acquire your citizenship thru
derivative citizenship.
The question there is when you run in public office.
Can you vote? Yes. You can avail of RA 9189(Absentee
Voting Act).
But again, can you run for public office after taking the oath
of allegiance?
NO. There is an additional requirement of EXPRESSLY
RENOUNCING YOUR FOREIGN CITIZENSHIP under
oath(so under a notary public).
These two must concur if you want to run for public office"
What about running for public office? Can you run for public
office?
After you have taken your oath of allegiance, the answer is
no.
As an initial requirement, you have to renounce your foreign
citizenship under oath.
To run for public office, these two requisites must
concur
1. You have taken your oath of allegiance as Filipino
citizen again;
2. You have to expressly renounce under oath your
foreign citizenship (so before a notary public)
3.
The case of Grace Poe
Now, going to the case of Grace Poe. She was a
natural born citizen even if she was a foundling. What is the
principle regarding foundlings? Where was she found? In
Jaro, Iloilo, part of the Philippines. The presumption of the
law is that she must be a citizen of the place where she was
found. The parents must have been Filipino citizens because
thats where she was found. Theres a presumption. So
theres no question about her not being a Filipino citizen. It
has nothing to do about adoption of Filipino parents because
a child who has been adopted does not acquire the
citizenship of the adopting parents.
Now what happened? When she was in the States,
she acquired naturalization. We dont know how she
acquired US citizenship. Was it at the time she was studying
in America or was it when she married an American citizen?
We cant be very clear on this. When did she acquire he US
citizenship as a student or when she was already married
to her husband who was an American? Her husband is still
American and her children as well. You will have a President
whose husband and children are Americans. Its awkward.
There is no qualification that the husband or the children of
the candidate have to be Filipinos as well. The only
requirement is that the candidate must be a natural born
Filipino citizen.
However it was acquired, shes a naturalized US
citizen. Theres no question about that. She has a passport
that says shes a US citizen. She came back to the
Philippines when her father died. Is that proof of residence?
What does residence mean? Its synonymous with domicile.
(The confusion comes it. Thats good. That means youre
actually thinking). She was back in the Philippines in 2006
when her father died. Anyway, she was not yet a Filipino
citizen yet at that time. Should that be counted as well?
Because it was only when she was appointed as
Chairwoman of the MTRCB that she has to renounce her US
citizenship. She did renounce it and surrender to the US
embassy her citizenship. Ako man gani, gisurrender nako
akong green card. We have to go to the US embassy and fill
up some papers there. And youll give a reason why youre
giving up your green card, how much more if citizenship.
And the US Embassy will ask, are you sure youre giving this
up? A lot of Filipinos would die to have this. I dont care, you
can have this. Id rather have a tourist visa.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Anyway, there is an application. They say that the
process will take a long time. Effectivity of the renunciation
was only when? How many years thereafter? She applied in
2009 man siguro. When did she run? 2010. She applied in
2009 and it was approved sometime in 2011. So that
precisely in 2009, when she went to the States, she still used
her US passport. So how do you determine residency? 2006
or 2009 or 2011 when her renunciation was approved? Its
not really clear. But one thing is for sure. The law says that
you have to renounce under oath your foreign citizenship,
whether or not it will be accepted. So I suppose the
reckoning period would be the date of renunciation. Whether
or not it is going to be accepted by the US government is of
no moment; the fact is that, you have renounced it. It could
be the date of reckoning or the date when she was
repatriated.
When was she repatriated? When she took her oath
of allegiance. Did she register it? There are so many
questions that are needed to be asked in order to determine
when she started her residency. Because in so far as her
Certificate of Candidacy is concerned, shes residing in the
Philippines for 2 years and 6 months. The requirement of
residency for Senators is 2 years. Iya sad gipasud sa iyang 2
years. Now that shes going to run for presidency, she is
short of the 10-year residency requirement! Now shes
saying that I was here since 2006. Should that be credited as
her period of residency?
Because citizenship does not necessarily include
residency; You can be a Filipino but residing abroad. She
bought a house in the Philippines as early as 2006. Kong
green card gani ka ( that is your proof of residency), you are
still Filipino but the fact that you have a green means that
you are residing in the US still, thus, youre not a Resident of
the Philippines. You cannot have 2 or more residencies; only
1!
Assuming that grace poe was a resident of the
Philippines in 2006, yet at that time she was still a US citizen.
How do you reconcile?
-dba kong US citizen ka, you are presumed to be
residing in America. (libog and inaudible jud ang discussion
diri dapit)
Going back to renunciation, this is only required for those
individuals who lost their citizenship by naturalization and
then reacquire it and become a dual citizen of the
Philippines.
But if you have dual citizenship other than through
naturalization, the renunciation need not be formal. The
moment you file your certificate of candidacy and you
declare yourself a Filipino citizen, then you are considered to
have renounced your other (foreign) citizenship.
Example:
Your father is a foreigner, your mother is Pinay, you were
born under the 1973 Constitution. Then you ran for congress
(but it requires natural born citizens)
= the moment you filed your certificate of candidacy, you
have in effect renounced your other citizenship
Do you still have to execute another document expressing
your renunciation?
=no need because you have deemed to have renounced
your other citizenship upon the filing of certificate of
candidacy.
Again, the requirement refers only to those who lost their
citizenship through naturalization but later reacquired it
under RA 9225. For him to run for public office, he must,
aside from taking his oath of allegiance, also expressly
renounce his foreign citizenship.
Take note: 10 years residency requirement if youre running
for President. It must be continuous.
What is residency?
-In the case of Macalintal vs COMELEC, the interpretation
of residency is synonymous to domicile. An Absentee
remains attached to his residence in the PH since residence
is considered synonymous to domicile. Domicile means an
individuals permanent home; a place where one whenever
is away for business or pleasure intends to return to.
Ex. If youre a US citizen and you bought a house in the PH,
will that be an expression of intent to establish a permanent
house in the PH?
- It would depend because theres a chance that it
could merely be a vacation house.
When you are a US citizen and you bought a house in the
Philippineswill that express/disclose intent that one wants
to establish a permanent house in the Philippines? It could
be a vacation house.
Opera_ Jr. vs. COMELEC- The basic rules of
domicile:
1. a man must have a residence or
reside somewhere.
2. A domicile, once established,
remains until a new one is validly
acquired.
3. A man can have only but one
residence/domicile in a given time.
Not a question of citizenship but of residency.
A. Senator-2years while
B. president-10years.
Manzano case-
Manzano was a dual citizen from birth. He was born in
America.
Aurodora vs. COMELEC-
citizenship of Tambunting: when he filed his certificate
of candidacy he was considered to have elected or choose
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Philippine ctitizenship as his only citizenship. Not applied in
the Frivaldo case-lost of Philippine citizenship was
delibarate.
In Re: Question of O. Moller about the case of Manzano.
Answer of Judge: You have the option really to give it up. Its
up to you.
Thats what happened to Grace Poe. She had renounced
US citizenship right? In 2009. It was only approved in 2011.
While I was saying for purposes of running regardless of the
opinion of the other country where you are also a citizen.
Approve or disapprove. What is important is your position.
Thats what matters. That you are giving it up. And that could
be also the reason of the country to grant it because
obviously you dont want to be their citizen anymore. Why
should they force themselves on you. You might just be a
spy.
Same with Manzano. I dont think it needs approval from the
country from where you are also a citizen in order to give the
act. Thats what I think. So its all up to you if you want to
give it up. In as far as the Phil govt, you are only a Filipino.
They dont care if you are giving up with your foreign
citizenship. What is important for the Republic of the
Philippines is that you chose to be a Filipino citizen. Thats it.
Now, also TN on the definition of natural born ha.
He has to be a citizen from birth without having to
perform any act, to acquire or perfect citizenship.
I suppose Grace Poe is a natural born through
repatriation. She regained her original status of being a
natural born citizen. If it was naturalization, then
definitely she is not a natural born citizen.
On losing your citizenship, how do you lose it guys?
1. When you apply for naturalization on a foreign
country.
2. When you serve the Armed Forces of the foreign
country.
3. When you are declared to have abandon or
desereted the Armed Forces of the Philippines esp
when there is a war.
4. When there revocation of your naturalization, then
you would lose your citizenship.
How can you reacquire it?
Repatriation or naturalization
You have several laws on repatriation. One of which is RA
8974 other than RA 9225.
Accountability of Public Officers
Article 11. just TN on the impeachment proceedings.
Who are impeachable persons?
1. President
2. Vice President
3. Supreme Court Justices
4. Commissioners of the Constitutional Commissions
(Civil Service, COMELEC, Coa)
5. Ombudsman
That is EXCLUSIVE. It cannot be expanded neither can it be
reduced.
Grounds for Impeachment: (CBB-TOG)
1. Culpable Violation of the Constitution
2. Bribery
3. Betrayral of Public Trust
4. Treason
5. Other high crimes
6. Graft and Corruption
Also, that is EXCLUSIVE!
Accountable of high ranking officials. You have
impeachment.
Who initiates?
House of Representatives
What is initiative?
Initiate refers to the filing and referral.
How many votes is needed in order to initiate the
impeachment proceedings? What is initiated is not a
complaint but impeachment proceedings.
1/3 votes of the HR
The promulgation of the initiation is exclusive to HR.
Should the proceeding orders or the procedure in the order
of initiating impeachment, should it be published?
SC said NO in the case of Ma. Merceditas Guttierez vs The
Ombudsman. SC was saying that the requirement of
publication of the rules of procedure is only a legislative
inquiry not in the initiation of impeachment proceedings.
Either in the conduct of trial before the HR.
So once probable cause is found, it requires only the 1/3
votes of the members of the HR .
1. If it is filed by a party individual, it goes to the
Senate.
2. By the way, if it is filed by a member of the HR,
theres no need of endorsement of a member of the
HR.
Again I repeat ha, kung private individual it needs
endorsement of a member of a HR for action to be taken.
If it it a member no need of endorsement. So after that
it will be referred to the Committee on Justice.
Now guys, if the complaint is signed by 1/3 of all members of
House of Reps, it would not anymore go to the Committee
on Justice. The Article of Impeachment will be prepared and
filed in the Senate. In order to convict an impeachable official,
2/3 votes is needed. The effect is removal from office.
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 CONSTITUTIONAL LAW: And whatever you ask in prayer, you will receive,if you have faith. Matthew 21:22
Question: can he now be charged in the Sandigang is concurrent with other administrative offices. But, TN: case
Bayan? of pechay? To be discuss further next meeting.
Answer: Yes. This is without prejudice to the filing of a
criminal case in the proper court or even civil case for
forfeiture of property if it is a case of graft and corruption. Albano, Baring, Calam, Din, Dionaldo, Dionen, Emboy, Fernandez,
Fernandez, Generale, Maligmat, Morales, Obeso, Sacares, Yano, Yap,Yntig

Functions of the Ombudsman: (memorize daw. I did not

understand this part because she mentioned the functions of
ombudsman but she discussed its jurisdiction instead)

Administrative Jurisdiction of the Ombudsman:

generally all public officials are covered
The only public officials that are not subject to their
Administrative Investigation are:
impeachable officials
judges and their personnel disciplining them is
exclusive to the SC to ensure independence of the
SC
congress members - disciplining them is exclusive to
the House concerned
o Case in point: current issue on the Binays.
The son is charged together with the father.
The father (VP Binay) is impeachable, so in
so far as administrative; he cannot be
investigated by the Ombudsman. If the
basis is conspiracy, you cannot also
investigate the son in the meantime.
Because supposedly his act is the act of the
impeachable public official. (take note of this
when the SC would already rule on whether
the Ombudsman has authority to
investigate an impeachable official together
with a non-impeachable public official)

Judges opinion/view: if it is based on

conspiracy, I dont think. They should wait. If
there is no conspiracy, individual act, then
the Ombusdsman have jurisdiction of the
Mayor of Makati. They were saying about
the AMLA, which was investigating the
money of Binay, but it was not Binay directly
but the alleged dummies. Now, they say it
was conspiracy; they investigate the alleged
conspirators of Binay. This is a civil case,
theres nothing to do with criminal. The only
reason that he cannot be charged criminally
is because of the possibility if prosecuted
and found guilty, part of the penalty is public
disqualification. If it is a civil case, there is
no possibility of him being removed from
office. But, in the case of Ombudsman
investigating the administrative liability of
the VP, there is no jurisdiction because he is
impeachable. With regards to the Mayor of
Makati, alleging conspiracy to the father,
then, there may not be jurisdiction. But if
individual, then Ombudsman may
investigate (the son).

The jurisdiction of the Ombudsman in Administrative cases

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