Political Law Review of Class 2015 1st Sem

CONSTITUTIONAL
LAW
Notes and Cases from Judge Estela Alma A. Singco

USERS GUIDE
Most likely to come out in the exams:
TN Take note, BAR Bar Question,
***** - Memorize.
From beginning to Legislative, it was arranged
according to the syllabus, but thereafter, its not.
Blue fonts mean, the subheadings were created by us.
The italicized portions came from the cases cited.
The Times New Roman Bold fontface are from
provisions of the law.
Not all cases have been placed with syllabus or cited
portions because it will make the reviewer very long.

MADE POSSIBLE BY:

Chan, Biton, Borres, Caminade, Caada, Duran, Fookson, Gallego, Gan, Gregorio, Judilla, Lao,
Lesigues, Lulu, Lumapas,Ortezuela, Otero,Salas, Tampus, Sanchez, Ubod, Tapia, Paglinawan,
Robles, Tan-Yu, Bayalas, Torres, Pea, Rejuso,
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
I. The Philippine Constitution
A. Constitution: definition, nature and concepts
We start with the Constitutions definition, concept. You
have mastered that: what a Constitution is; the different
kinds of Constitution according to its origin, according to
its form, according to the manner of changing it and
according to the form of government that is established.
So for example, lets have the definition of a Constitution
as a general concept. It is the highest fundamental law
of the land upon which all activities of the government
are based on. And so therefore in case of a conflict
between a statute and the Constitution always the
Constitution prevailing over the statute, as a general rule
because sometimes it would depend on the system of
the government. Where there is the supremacy of the
parliament, in case of a conflict between a statute and
the Constitution, the statute is not necessarily declared
unconstitutional. Nonetheless the parliament act may still
be existing without being declared as unconstitutional.
That goes to show an implication of the principle that the
Constitution always prevails over any other law that may
be passed by the government it could be the
parliament or it could be an administrative body in so far
as rules and regulations or even the president in some
cases as regards to his presidential decrees,
proclamations or executive orders.
Kinds of Constitution According to Origin
1. Conventional or Enacted Constitution -
deliberately made at a definite period of time
2. Cumulative or Evolutionary Constitution -
When it is a result of an evolution of history of
the activities the people of the country and of the
government in particular
3. Fiat or Granted Constitution - it is a
Constitution made by one country for another
usually its by way of a treaty of peace, after one
territory/country is defeated by another. So a
sovereign country would prepare a Constitution
for a defeated territory
Now, the more important part there is being able to
distinguish what kind of constitution that you have
according to that form or kind of constitution. Yours is
definitely a Conventional or Enacted Constitution has
been as such since we had the 1935 Constitution, 1973
and the 1987 Constitution. So it was deliberately made,
for example, in so far as the 1935 Constitution by the
1934 Con-Con ratified by the people on 14 May 1935.
And then you have the 1973 Constitution that was made
by the 1971 Con-Con and it was declared to have been
validly ratified on 17 January 1973 by Proclamation 1102
by Mr. Marcos. And then you have the freedom
Constitution of course, it was made by virtue of
2
Proclamation No. 3 by Cory Aquino. And then finally you
have the 1987 Constitution that was made by the 1986
Constitutional Commission, ratified and took effect on 2
February 1987. Case in point, you have the de Leon v.
Esguerra case.
Kinds of Constitution According to Source
1. Written Constitution - a constitution whose
sources are found in one single instrument.
2. Unwritten Constitution - not necessarily not
reduced in writing the sources could still be
written, however the sources are scattered.
The kind of Constitution that you have is a Written
Constitution where all provisions are found in one single
instrument such as the 1987 Constitution.
Kinds of Constitution According to the Manner of
Changing
1. Rigid - is when you follow a specific procedure
on how to change the Constitution, amend or
revise it.
2. Flexible - is when you dont follow any
procedure and you can effect a change to the
Constitution.
So then you have master what kind of constitution you
have. Definitely yours is a Rigid Constitution; so you
master how you propose amendments or revisions to the
Constitution.
This has come out in the BAR exams several kinds.
Especially in the MCQ.
Q: (BAR) What is first the difference between
amendment and revision?
A: Amendment is when you only propose certain
changes to certain provisions or portions or parts of the
Constitution you do not overhaul it. Even if you only
change a certain portion however it changes the
philosophy or the foundation of the Constitution then it is
not just an amendment but a revision.
Lets have an example. If you change the term of office
of the president, its just an amendment, but if you
change the system of the government from presidential
to parliamentary definitely it is a revision because you
practically change the foundation of the government
the system of the government.
Q: Why is it important to know the difference between an
amendment and a revision?
A: Because the matter of proposal also differ. (TN) In so
far as proposal to amend or revise a Constitution, there
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
are only certain individuals who are authorized to do the
proposal.
Q: Who can propose an amendment to the Constitution?
A: First of all, you have Congress. And then you have a
Constitutional convention. And of course you have
people through Initiative.
Q: In revision, can people propose?
A: No, only Congress and the Constitutional convention
can make the proposal if it is a revision.
See the difference here? Lets go to the details.
In so far as an amendment proposal or revision,
Congress can do so.
Q: What is the procedure? How many votes are
needed?
A: You need votes of both houses, voting separately.
Although the Constitution says of all members of
Congress, it didnt say voting separately. But there is an
interpretation although there is no jurisprudence that it
should be interpreted as voting separately because
according to some Constitutionalists it may be an
oversight on the part of the members of the Con-Comm
just copying the 1973 Constitution because then there
was no problem because the legislature was unicameral.
It is a problem now because yours is bicameral. So it
should be understood as voting separately. So that,
even you get votes from the House of
Representatives, however you dont get the same
number of votes in the same number of votes in Senate,
there cannot be any proposal for amendments to the
Constitution coming from congress.
Another manner of changing it, you have a Constitutional
Convention both also an amendment or revision.
Q: Who can initiate? Who will decide whether to call a
Con-Con? Or it would be Congress to act as constituent
assembly?
A: That is a discretion of congress. (BAR) TN of the
voting, the requisite vote. Directly, if Congress will act as
Constituent Assembly . The calling of a Con-con, you
need only 2/3. And if Congress is undecided and will
prefer for the people to decide on it, they would then
submit the issue to the people in a referendum.
Q: And that will require how many votes?
A: Majority.
Q: How about the people?
A: They can only propose amendments but not revision.
And it is through the process of initiative only initiative
on the Constitution not referendum, but initiative.
3
Q: How do people initiate amendments to the
Constitution?
A: Take note of the following cases that are relevant:
Santiago v. Ramos
Lambino v. COMELEC
Q: First of all, you should gather how many signatures of
registered voters?
A: 12% of the total registered voters of which, each
legislative district is represented by at least 3% of the
registered voters. Dont just simply say 12%. It should be
12% and 3%. They must concur.
(TN) Additional requirements are discussed in the
Lambino case.
Q: That it should be the petition that is signed by the
registered voters, why?
A: Because after all, they are supposed to be the
authors of the petition to propose an amendment to the
Constitution, and therefore they should sign the petition
itself. That is the requirement. So, you would have
copies according to as many petitioners, if they are to be
the authors of a petition to propose amendments or
changes to the Constitution.
Q: And whats the reason?
A: In both cases, an initiative failed. In the Santiagos
case, the SC was saying that RA 6735 (the law providing
for the manner of initiative, the implementing rule
regarding on people initiating amendments to the
Constitution), is insufficient to provide a procedure
because if you read the law, it does not provide for
details it does not even authorize the COMELEC to
promulgate the rules, unlike in initiative on statute and
on local legislation, which are very specific. Initiative on
amendments to the Constitution however was declared
by the SC to be insufficient.
Nonetheless, in the Lambino case, which was the
subsequent case, the SC was saying if people indeed
would want to propose changes, we cannot stop them. It
is a political discretion in their sovereign capacity, should
they decide. But the initiative that was initiated by
Lambino group on amending the Constitution during the
Arroyo administration still failed because they failed to
prove to the SC the number of petitioners signing
because the copies would not reflect to the number of
registered voters supposedly initiating the amendments
to the Constitution. You need 12% and they were saying
that is equivalent to a number of voters, like 11 million
for example however the copies of the petition was much
lesser than the number of registered voters. And so the
SC was saying, it has not proven that it has obtained the
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
requisite number of percentage of registered voters
signing the petition as it is required by the law that would
initiate amendments to the Constitution.
Q: After the proposal, what happens next?
A: Youll have the submission of the proposal to the
people for further study and investigation. The only
principle that you must remember under this particular
stage of the change of the Constitution is that there
cannot be a piecemeal submission of a proposed
amendments to the Constitution.
Piecemeal submission is prohibited. It should be the
whole thing so that the people can fully understand the
proposed changes or amendments.
Q: After the submission of the proposal to the people,
what will be the next step to follow?
A: There is now the ratification.
Q: In the ratification, you will have a plebiscite. For the
amendments to be effective, how many votes are
needed?
A: Its plurality only. Majority of the votes cast during the
plebiscite.
Q: And when does the Constitution take effect, under
section 22 of article XVIII?
A: As it was declared by the SC in the Esguerra case,
the Constitution, any amendments thereto or revision
shall take effect only upon ratification by the majority
votes, not upon the declaration by the president that the
Constitution was validly ratified.
That is in so far as the kind of Constitution that you have
which is rigid.
The other form of Constitution will depend on the kind of
government that you established. Of course, whatever
government that you establish is just reflective of the
kind of Constitution that you have, because after all the
basis of the government and its activities is the
Constitution.
So if you have a republican government that means your
Constitution is republican. If you have a democratic
government that means your Constitution is democratic,
and so on and so forth.
Then we go to the different parts of the Constitution.
First, you have the Constitution of Government, the
Constitution of Liberties and then you have the
Constitution of Sovereignty.
On the Constitution of government, that pertains to the
provisions that relate to the structure, functions and
operations of the government.
4
Q: The 1987 Constitution consists only of how many
articles?
A: Eighteen (18) articles.
We start with the Constitutions definition, concept. You
have mastered that: what a Constitution is; the different
kinds of Constitution according to its origin, according to
its form, according to the manner of changing it and
according to the form of government that is established.
So for example, lets have the definition of a Constitution
as a general concept. It is the highest fundamental law
of the land upon which all activities of the government
are based on. And so therefore in case of a conflict
between a statute and the Constitution always the
Constitution prevailing over the statute, as a general rule
because sometimes it would depend on the system of
the government. Where there is the supremacy of the
parliament, in case of a conflict between a statute and
the Constitution, the statute is not necessarily declared
unconstitutional. Nonetheless the parliament act may still
be existing without being declared as unconstitutional.
That goes to show an implication of the principle that the
Constitution always prevails over any other law that may
be passed by the government it could be the
parliament or it could be an administrative body in so far
as rules and regulations or even the president in some
cases as regards to his presidential decrees,
proclamations or executive orders.
Kinds of Constitution According to Origin
1. Conventional or Enacted Constitution -
deliberately made at a definite period of time
2. Cumulative or Evolutionary Constitution -
When it is a result of an evolution of history of
the activities the people of the country and of the
government in particular
3. Fiat or Granted Constitution - it is a
Constitution made by one country for another
usually its by way of a treaty of peace, after one
territory/country is defeated by another. So a
sovereign country would prepare a Constitution
for a defeated territory
Now, the more important part there is being able to
distinguish what kind of constitution that you have
according to that form or kind of constitution. Yours is
definitely a Conventional or Enacted Constitution has
been as such since we had the 1935 Constitution, 1973
and the 1987 Constitution. So it was deliberately made,
for example, in so far as the 1935 Constitution by the
1934 Con-Con ratified by the people on 14 May 1935.
And then you have the 1973 Constitution that was made
by the 1971 Con-Con and it was declared to have been
validly ratified on 17 January 1973 by Proclamation 1102
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
by Mr. Marcos. And then you have the freedom
Constitution of course, it was made by virtue of
Proclamation No. 3 by Cory Aquino. And then finally you
have the 1987 Constitution that was made by the 1986
Constitutional Commission, ratified and took effect on 2
February 1987. Case in point, you have the de Leon v.
Esguerra case.
Kinds of Constitution According to Source
1. Written Constitution - a constitution whose
sources are found in one single instrument.
2. Unwritten Constitution - not necessarily not
reduced in writing the sources could still be
written, however the sources are scattered.
The kind of Constitution that you have is a Written
Constitution where all provisions are found in one single
instrument such as the 1987 Constitution.
Kinds of Constitution According to the Manner of
Changing
1. Rigid - is when you follow a specific procedure
on how to change the Constitution, amend or
revise it.
2. Flexible - is when you dont follow any
procedure and you can effect a change to the
Constitution.
So then you have master what kind of constitution you
have. Definitely yours is a Rigid Constitution; so you
master how you propose amendments or revisions to the
Constitution.
The other form of Constitution will depend on the kind of
government that you established. Of course, whatever
government that you establish is just reflective of the
kind of Constitution that you have, because after all the
basis of the government and its activities is the
Constitution.
So if you have a republican government that means your
Constitution is republican. If you have a democratic
government that means your Constitution is democratic,
and so on and so forth.
B. Parts
Then we go to the different parts of the Constitution.
First, you have the Constitution of Government, the
Constitution of Liberties and then you have the
Constitution of Sovereignty.
On the Constitution of government, that pertains to the
provisions that relate to the structure, functions and
operations of the government.
5
Q: The 1987 Constitution consists only of how many
articles?
A: Eighteen (18) articles.
1. Constitution of Government - as reflected in
the Constitution, you have Articles VI, VII, and
VIII the legislative, executive and judicial
departments. Of course you have other
Constitutional Bodies, such as the Constitutional
Commissions. And then you have the principles
the underlying principles in the operation of the
government. So you have general principles like
Article II, you have the economic provisions, the
general and transitory provisions and all.
2. Constitution of Rights - such as the Bill of
Rights, you have Article III. that is your charter
of liberty.
3. Constitution of Sovereignty - that is giving the
power to the people on how to make
amendments to the Constitution.
TN: Preamble does not form part of the Constitution, it
is not an essential part. You can have a Constitution
without a preamble.
C. Amendments and revisions
This has come out in the BAR exams several kinds.
Especially in the MCQ.
Q: (BAR) What is first the difference between
amendment and revision?
A: Amendment is when you only propose certain
changes to certain provisions or portions or parts of the
Constitution you do not overhaul it. Even if you only
change a certain portion however it changes the
philosophy or the foundation of the Constitution then it is
not just an amendment but a revision.
Lets have an example. If you change the term of office
of the president, its just an amendment, but if you
change the system of the government from presidential
to parliamentary definitely it is a revision because you
practically change the foundation of the government
the system of the government.
Q: Why is it important to know the difference between an
amendment and a revision?
A: Because the matter of proposal also differ. (TN) In so
far as proposal to amend or revise a Constitution, there
are only certain individuals who are authorized to do the
proposal.
Outline of Steps in Amendments
1. Proposal
Q: Who can propose an amendment to the Constitution?
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: First of all, you have Congress. And then you have a
Constitutional convention. And of course you have
people through Initiative.
Q: In revision, can people propose?
A: No, only Congress and the Constitutional convention
can make the proposal if it is a revision.
See the difference here? Lets go to the details.
In so far as an amendment proposal or revision,
Congress can do so.
Q: What is the procedure? How many votes are
needed?
A: You need votes of both houses, voting separately.
Although the Constitution says of all members of
Congress, it didnt say voting separately. But there is an
interpretation although there is no jurisprudence that it
should be interpreted as voting separately because
according to some Constitutionalists it may be an
oversight on the part of the members of the Con-Comm
just copying the 1973 Constitution because then there
was no problem because the legislature was unicameral.
It is a problem now because yours is bicameral. So it
should be understood as voting separately. So that,
even you get votes from the House of
Representatives, however you dont get the same
number of votes in the same number of votes in Senate,
there cannot be any proposal for amendments to the
Constitution coming from congress.
Another manner of changing it, you have a Constitutional
Convention both also an amendment or revision.
Q: Who can initiate? Who will decide whether to call a
Con-Con? Or it would be Congress to act as constituent
assembly?
A: That is the discretion of Congress. (BAR) TN of the
voting, the requisite vote. Directly, if Congress will act as
Constituent Assembly . The calling of a Con-con, you
need only 2/3. And if Congress is undecided and will
prefer for the people to decide on it, they would then
submit the issue to the people in a referendum.
Q: And that will require how many votes?
A: Majority.
Q: How about the people?
A: They can only propose amendments but not revision.
And it is through the process of initiative only initiative
on the Constitution not referendum, but initiative.
Q: How do people initiate amendments to the
Constitution?
A: Take note of the following cases that are relevant:
6
Santiago v. Ramos
Lambino v. COMELEC
Q: First of all, you should gather how many signatures of
registered voters?
A: 12% of the total registered voters of which, each
legislative district is represented by at least 3% of the
registered voters. Dont just simply say 12%. It should be
12% and 3%. They must concur.
(TN) Additional requirements are discussed in the
Lambino case.
Q: That it should be the petition that is signed by the
registered voters, why?
A: Because after all, they are supposed to be the
authors of the petition to propose an amendment to the
Constitution, and therefore they should sign the petition
itself. That is the requirement. So, you would have
copies according to as many petitioners, if they are to be
the authors of a petition to propose amendments or
changes to the Constitution.
Q: And whats the reason?
A: In both cases, an initiative failed. In the Santiagos
case, the SC was saying that RA 6735 (the law providing
for the manner of initiative, the implementing rule
regarding on people initiating amendments to the
Constitution), is insufficient to provide a procedure
because if you read the law, it does not provide for
details it does not even authorize the COMELEC to
promulgate the rules, unlike in initiative on statute and
on local legislation, which are very specific. Initiative on
amendments to the Constitution however was declared
by the SC to be insufficient.
Nonetheless, in the Lambino case, which was the
subsequent case, the SC was saying if people indeed
would want to propose changes, we cannot stop them. It
is a political discretion in their sovereign capacity, should
they decide. But the initiative that was initiated by
Lambino group on amending the Constitution during the
Arroyo administration still failed because they failed to
prove to the SC the number of petitioners signing
because the copies would not reflect to the number of
registered voters supposedly initiating the amendments
to the Constitution. You need 12% and they were saying
that is equivalent to a number of voters, like 11 million
for example however the copies of the petition was much
lesser than the number of registered voters. And so the
SC was saying, it has not proven that it has obtained the
requisite number of percentage of registered voters
signing the petition as it is required by the law that would
initiate amendments to the Constitution.
2. Submission to the people for study
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Q: After the proposal, what happens next?
A: Youll have the submission of the proposal to the
people for further study and investigation. The only
principle that you must remember under this particular
stage of the change of the Constitution is that there
cannot be a piecemeal submission of a proposed
amendments to the Constitution.
Piecemeal submission is prohibited. It should be the
whole thing so that the people can fully understand the
proposed changes or amendments.
3. Ratification
Q: After the submission of the proposal to the people,
what will be the next step to follow?
A: There is now the ratification.
Q: In the ratification, you will have a plebiscite. For the
amendments to be effective, how many votes are
needed?
A: Its plurality only. Majority of the votes cast during the
plebiscite.
Q: And when does the Constitution take effect, under
section 22 of article XVIII?
A: As it was declared by the SC in the Esguerra case,
the Constitution, any amendments thereto or revision
shall take effect only upon ratification by the majority
votes, not upon the declaration by the president that the
Constitution was validly ratified.
That is in so far as the kind of Constitution that you have
which is rigid.
D. Self-executing and non-self-executing provisions
Q: What are the general principles on the interpretation
of the Constitution.
A: The general rule is that it is mandatory, you have to
follow them. It is not just directory, unless the law itself
provides otherwise that it is merely directory or by a
Supreme Court interpretation. And then, it is self-
executing. You dont need legislation inorder to
implement them. It can be executed right away without
need of implementing rules as a general rule. As
exception to that is ARTICLE II which is not self-
executing. You need legislation inorder to implement. TN
of the case of Taada vs Angara. Suffice to say that as a
general rule it is self- executing. Later you would learn
from the decisions of the Supreme Court where it
emphasized the fact that there is no need of a law or
legislation inorder to implement the provisions if the
Constitution. You could go to court and seek judicial
relief. If it is not self executing that cannot then be the
provisions of the Constitution especially Art. II cannot be
used as judicial basis for judicial action. Meaning, you
cannot question the validity a particular act of the
government if there is no law prohibiting it on the basis
7
only of Art. II because is not self executing. And our
economic provisions as well. Most of them are not self
executing. In a recent decision of the Supreme Court, it
made emphasis on some provisions there that are self
executing and therefore need not require any legislation.
But generally, it is self executing.
Finally, you dont apply the provisions of the Constitution
retroactively, they only have prospective application
unless it does not conflict with the previous Constitutions
then it may be applied retroactively. General rule is,
prospective application.
E. General provisions
PREAMBLE (MEMORIZE)
We, the sovereign Filipino people, imploring the aid
of Almighty God, in order to build a just and humane
society and establish a Government that shall
embody our ideals and aspirations, promote the
common good, conserve and develop our patrimony,
and secure to ourselves and our posterity the
blessings of independence and democracy under the
rule of law and a regime of truth, justice, freedom,
love, equality, and peace, do ordain and promulgate
this Constitution.||| (1987 Constitution [1987])
The question is more on technicalities side of the
preamble. As i have said earlier, it is not an intergral
part. It is not even important and necessary because it
cannot be a source of rights and obligations. The utility
of a preamble may be limited to guiding our government,
particulary Congress, in making laws that if they have to
make laws it must be in accordance of the purpose
forwhich the Constitution was adopted. Similarly to the
President in the implementation of the laws if he doesnt
understand how to implement or of the purpose of
Congress then he may always refer to the preamble. As
well as the Supreme Court in interpreting the provisions
of the Constitution and laws passed by Congress. In
applying it to actual cases, it may be guided of the
purposes enumerated in the preamble. If you read the
preamble, it states there WE, THE SOVEREIGN
FILIPINO PEOPLE indicating therefore the source of
sovereignty and authors of the Constitution, the
sovereign filipino people. IMPLORING THE AID OF
ALMIGHTY GOD and this has been questioned saying
that we are suppose to be a counrty with a separation of
the church and the state where it follow non
establishment of a religion.
Q: would there be a violation of the statement to the
Consitution?
A: No. The preamble is more of a description of the kind
of people that we are. Rather than imposing the belief in
God in our establishing of a government or in our
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
implementing the provisions of the Constitution. So it just
a mere declaration that we implore the aid of the
Almighty God. We are not obliged to believe in God. If
you are an atheist you cannot use that to question the
validity of the Consitution.
And then you have the enumeration of the purposes.
Just go over with the purposes. You can say that there is
redundancy because these principles are already
implied in the subseqeunt provisions of the Consitution.
II. General Considerations
A. National territory
ARTICLE I- NATIONAL TERRITORY. (TN, ***)
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.||| (1987 Constitution [1987])
Master it because of the recent issues. In Scarborough
shoal , what we are concerned of are the living and non-
living forces in the premises as part of our Exclusive
Economic Zone. It is not part of out territory but part of
EEZ. This is explained in our definition of National
Territory. You should TN of this that the definiton of
National Territory is not binding in the international
sphere. It is not binding upon other countries because it
is only a municipal law. This is important for the
purposes of implementing our laws. Identifying our
boundaries or territorial boundaries, that is the most
important part because how would we know if our laws
are applicable.
We have to include in the definition of our national
territory for some reaons. In the 1935 Constiution, we
had the definition because we were too afraid that the
american government might just retain some portions of
our territory. Our definition of national territory in 1935
Constitution was based on the Treaty of Paris. It
enumerates all and specified the delineation and
boundaries of our territory including Marianas Islands in
Guam. Then there was a different reason why we
adopted a definition in the 1973 Constitution. This is
because if we will rely merely on the Treaty of Paris as
our title of what comprises as the Philippine National
Territory it would exclude the Batanes Islands. Because
the Batanes Island were not included in the definition in
the Treaty of Paris. So to inlcude it, we have to define
our national territory and also another reason for that is
8
to protect our natural resources that are found in the
archipelagic waters. TN that our territory is an
archipelago and therfore if you follow the ordinary
principle of international law in determining territorial
seas then you will be creating pockets of international
waters within our territory.
1. Archipelagic doctrine
We cannot afford to have that situation so we adopted
another doctrine which is the Archipelagic Doctrine.
It means waters around, between and connecting the
islands regardless of breadth and dimensions are
considered as inland waters, internal waters treated like
canals, rivers or swamps. There is no controversy there
on territorial sea to the extent of jurisdiction beacuse
they are treated as internal waters. In the 1987
constitution we adopted the defintion of national territory
with some changes in some phrases. Our conflict with
Malaysia over Sabbah, inorder to erase that thought of
annoyance or irritation, we erased the phrase belonging
to the Philippines by historic/legal title instead we have
in all other territories in which the Philippines has
sovereignty or jurisdiction. So whatever the reason is of
the definiton of the national territory that will bind us and
not necassarily the neighboring countries.
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
Q: What is an archipelago?
A: A group of islands surrounded by the sea waters or it
could be a body of water studed with islands. The
general concept of archipelago is the latter
defintion,body of sea water studed with several islands.
A territory may consist of several archipelagoes or just
one archipelago. Ours is just one consisting of 7,106
when low tide and 7,100 when high tide. TN of the
definiton of an archipelago in the UNCLOS,
ART. 46. USE OF TERMS
(a) "archipelagic State" means a State constituted
wholly by one or more archipelagos and may include
other islands;
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
(b) "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
We have big islands Luzon, Visayas and Mindanao.
Then we have Palawan, the West Philipinnes Sea and
you can also find the islands being the subject of the
controversy, Kalayaan group of Island and the
Scarborough shoal.
Q: How did we acquire these islands, not particluarly the
main archipelago?
A: We acquired the islands by virtue of transfer except
for Batanes Islands. Batanes islands were acquired by
long occupation. The rest by Treaty of Paris. And then
there were other islands that were added
Q: What are other islands added to the Philippines
by virtue of Treaty of Washington and US-British Treaty?
A: Maxi islands, Turtle islands, Cagayan de Sulu,
Sibuto islands
TN: If you are to determine the archipelago, it looks
like a triangle, until we have the two islands added the
Scarborough shoal and the KGI. KGI to some extent is
habitable, but Scarborough shoal is not. At any rate, it is
not fit for human habitation or occupation. This
information is significant taking into consideration the
present controversy with China.
Q: What is the status of these islands today in
relation to RA 9522 (March 10, 2009)?
A: They used to be part of the archipelago until we
were pressured into redefining, redrawing our
archipelago so that they will be more or less consistent
with the provisions of the UNCLOS. By virtue of this law,
these two other territories that we are claiming as part of
our archipelago, such as the Scarborough shoal and the
KGI were EXCLUDED from the main archipelago and
are ONLY TREATED AS REGIME OF ISLANDS. So in
the WATERS SEPARATING these two from the main
archipelago WILL NOT BE ANYMORE INCLUDED IN
THE INTERNAL WATERS DEFINITION OR
ARCHIPELAGIC WATERS. The water around it, to
determine its claim over the seawaters, is based on
Normal Base Line, not Exclusive Economic Zone.
The significance there, the waters separating
these islands from the main archipelago will no longer be
considered internal waters. That is the implication. And
weve lost therefore a number of nautical miles of
seawaters because of the exclusion. It used to be
rectangular, now it is only triangle.
9
TN: Anything pertaining to maritime jurisdiction or
domain, it is governed by the UNCLOS. Always
remember that. Read it and you will top the bar. Thats
not only applicable in political law but as well as in public
international law.
Q: These islands are mostly rocks. Why are we
interested in them?
A: Were interested over the seawaters surrounding
these islands, as bases for our claim over the maritime
domain. They are very rich in resources. They are part of
the Malampaya.
Q: What is the basis of China in asserting claim over
these islands?
A: Their basis is Exclusive Economic Zone. China
claims that there is overlapping of Exclusive Economic
Zone, and based from their EEZ, that is still covered
from Hainan island.
TN: Insofar as our claim over the seawater which
used to be just internal waters, now we have to
determine the seawaters and the bases of EITHER
theyre part of the EEZ or its territorial seas.
Q: What is the purpose of RA 9522?
A: In gist RA 9522 defines the general
configuration of the archipelago including the extended
continental shelf and the EEZ to make it more compliant
to UNCLOS.
Q: What is TERRITORIAL SEA?
A: Under ordinary circumstances, if you have this
continent, its only 12 nautical miles from the normal
base line. You draw it from the normal base line of the
coastline of a territory.
Q: BUT SOMETIMES, there are continents that are
submerged, and there may be an extension of the inland
which is submerged that goes beyond the 12 NM. Is that
part of the territory?
A: Answer is NO, only up to 12 NM. BUT, we have
sovereign rights over the water beyond that 12 NM up to
another 12 NM from the end of the 12 NM of territorial
seas so 24 NM from the normal base line. Thats what
we call EXTENDED CONTINENTAL SHELF
PRINCIPLE.
Q: What is the purpose of Extended Continental
Self Principle?
A: For implementing our laws pertaining to sanitary,
customs, fiscals that would go beyond 24 NM from the
normal base line or 12 nm from the end of territorial
seas.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Q: What is EXCLUSIVE ECONOMIC ZONE?
Where is it reckoned from?
A: It is reckoned from normal base line of adjacent
territory, 200 NM. It means that beyond 12 NM onwards
to 200 NM, its not part of our territory BUT we have
EXCLUSIVE RIGHTS over the seawaters including the
living and non-living resources found therein to Exploit,
Develop and Utilize (EDU).
Q: Is it provided in the Constitution? Is it merely
directory? Or self-executing?
A: The Constitution is very clear on this and this is
self-executing according to the Supreme Court, that
because it is exclusive, it cannot be shared with anyone,
not even overlapping. That is your EXCLUSIVE right.
Q: There is another principle on overlapping. What
is the basis for this principle?
A: It is based on equality, equity, solution in the
determination of extent of jurisdiction proportionate on
how big your island is, adjacent to the EEZ It is not
totally equal but based on equity.
TN: But for as long as there is no overlapping, there
cannot be sharing in the exploration. What China wants,
the least, is to share the exploration of the national
resources including Malampaya.
Q: Is the Philippines allowed to share the
exploration of our islands?
A: That is contrary to the Constitution if we agree to
that. Why? Read again the constitution, it says:
exclusive rights of Filipino citizen on marine wealth. We
may only hire them as contractors to provide us financial
and technical assistance just like Shell, but there cannot
be any sharing.
Q: In the case of (Magallona v. Ermita, G.R. No.
187167, August 16, 2011), RA 9522 was challenged on
the ground that by adopting this law, in effect, we are
deprived of our rights to explore the resources over the
waters separating these islands such as KGI and the
Scarborough shoal from the main archipelago. How was
this resolved by the Supreme Court?
A: The Supreme Court ruled that Had Congress in
RA 9522 enclosed the KGI and Scarborough Shoal as
part of the archipelago, adverse legal effects would have
ensued. The Philippines will have committed breach of
the two provisions of UNCLOS. First, Article 47(3)
thereof requires that the drawing of such baseline shall
not depart from any appreciable extent from the general
configuration of the archipelago. Article 47 of the same
provision provides that the length of the base line shall
not exceed 100 NM same for 3% of the total number of
baselines which can be up to 125 NM. Although the
10
Philippines has consistently claimed sovereignty over
the KIG and the Scarborough Shoal for several
decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the
Philippine archipelago, such that any straight baseline
loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the
general configuration of the archipelago."||| (Magallona
v. Ermita, G.R. No. 187167, August 16, 2011).
TN: Thats why if you extend it, the configuration
becomes rectangular instead of triangular which is the
original configuration of the archipelago under the Treaty
of Paris.
Q: What is our basis of our claim over Scarborough
Shoal?
A: Primarily on discovery.
TN: But China claims that they have discovered it as
th
early as 18 century. Remember that we only started
claiming after the WWII.
IMPORTANT: At any rate, the more important basis for
our claim is our EEZ. Part of our 200 EEZ. Read
Carpios paper.
Q: What are our rights over our Internal Waters,
and Extended Continental Shelf?
A: Our claim over the seawaters separating the
islands, there is no doubt that if we follow the
archipelagic doctrine that theyre part of our INTERNAL
WATERS, PART OF OUR TERRITORY. Our jurisdiction
is only up to the 12 NM which means within 12 NM as
part of our territory which we described as territorial
seas, we can limit foreign vessel navigation and over-
flight.
A: Insofar as the extended continental shelf, we
have up to 24 NM from the normal baseline. Beyond the
12 NM, although still within the continental shelf, it is
allowed as part of the right of way, the same with
Exclusive Economic Zone.
Q: From where should the EEZ be based or drawn?
A: In the drawing of the EEZ as part of the territory,
always remember that it has to be drawn from the
normal baseline along the coastline of an island or
continental shelf. NORMAL BASELINE of an island that
is HABITABLE,
Q: What do you mean by HABITABLE?
A: That that can be inhabited, or can sustain on its
own economic growth.
Q: In relation to Chinas claims, will the EEZ apply?
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: That EEZ of 200 NM cannot apply if your basis
is a reef or rocks. China cannot make a claim because
their bases are the Nine-dash lines and Paracels that
cannot be occupied. If you live there, you need to
depend on the food that is being brought there. But on
their own, they cannot sustain economically. So if that is
the basis of the EEZ. That is not allowed.
TN: Our archipelago is sustainable economically; we
can survive on our own. It is obviously habitable. If we
follow that, we have better right for EEZ where you can
find the Scarborough Shoal.
TN: Another point that we should take note is that
this is now being subjected to arbitration under the
UNCLOS. China however refused to submit and opted
out from that arbitration saying that being a sovereign
state it is discretionary on their part whether or not to
submit itself to arbitration.
Q: Is it correct for China to refuse?
A: Answer is NO, because they are signatory to the
UNCLOS. When they signed in the UNCLOS, they
consented to follow the provisions of the UNCLOS.
In which case, they have given their consent impliedly
and if they have given their consent, they are subjected
to the jurisdiction of UNCLOS Arbitration.
TN: The jurisdiction of the UNCLOS. Its jurisdiction is
limited only to disputes involving sea waters of the
continental shelf and the Exclusive Economic Zone NOT
Territorial Seas.
Kung mu ingon kag territorial imung dispute involving the
territorial seas or the maritime domain, adto na siya, ang
application kay General Principles of International Law.
ICJ has jurisdiction over that.
But when we say maritime dispute involving claims over
sea waters relating to the continental shelf, extended
continental shelf or exclusive economic zone this is
under the jurisdiction of the UNCLOS. Im just discussing
this in relation to the claims of China over the Regime of
Islands.
Aside from the Regime of Islands, you also have other
territories over which the Philippines have jurisdiction or
sovereignty. Jurisdiction we mean that we enforce our
own laws, having a government and implement our own
laws.
Q: Sovereignty, is it necessary that there should be a
government in the territory, Philippine government in
order for it to be considered as part of the Philippine
National Territory?
A: No. for as long as there are sovereign rights based on
historic right or legal title. That would be sufficient to
11
claim it as part of the national territory. Therefore, our
rephrasing of the provisions of the Constitution relating
on this score, remember the original provision saying:
and all other territories belonging does not actually
change the scenario or our right to claim territories later
in the future if we become a superpower as part of the
national territory as long as it based on historic right or
legal title.
We are referring to Sabah. Actually we are not dropping
our claim over Sabah because you cannot deny the fact
that this Sultan of Sulu has proprietary rights over Sabah
or North Borneo.
You must be able to distinguish between Sovereign
Rights and Proprietary Rights. Kung proprietary rights
referring to property rights of a particular individual or
entity. Kung mu ingon ka ug sovereign rights it pertains
to governance and you are making it as part of the
Philippine territory.
As it is now, hand offs ang government over making it as
part of the Philippine territory. We are not asserting
sovereign rights but we are not also disclaiming the
proprietary rights of the Sultan of Sulu over Sabah.
Kung ikaw tag-iya ug isla sa Sabah, what you can claim
is only your proprietary rights and as such, part of your
rights over the property is to possess it. Obviously.
Regardless under whose government or who would it
be.
But when we talk about sovereign rights, it now pertains
to governance where you implement your law and you
establish a government there and making it as part of
the Philippine government, thats a different story.
As of now, we are avoiding the issue of sovereign rights
over Sabah but we are also not denying the rights of the
Sultan of Sulu, the proprietary rights over the island
because it was established that indeed once upon a time
that Sabah was owned by the Sultan of Sulu before the
definition of anybodys territory. In fact, it was rented out
to the British East India Company because Malaysia was
under UK. And when it was granted independence, it
was turned over to the Malaysian government instead to
the Sultan of Sulu. Understandably, because most of the
residents are Malaysians. And that was the start of the
claim of Malaysia over the same. Anyhow, we have
exerted our efforts to claim it both based on legal and
extralegal methods. Legally, because of the refusal of
Malaysia to submit to the jurisdiction of the ICJ. The
least that they did was to hold a referendum, asking
people if they want to become part of the Philippine
territory which obviously was refused blatantly and so
this prompted probably the government to create a
terrorist group in order to infiltrate the territory. However
it was discovered and all of these terrorists were
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
massacred. That was the Jabidah Massacre that led to
our dropping of our claim over Sabah. Otherwise,
Malaysia was ready to declare war against us. That was
the controversy involving Sabah.
As I have said, the provisions of the Constitution does
not bar us from claiming it in the future when we become
so powerful because we are so rich and maybe we can
just buy Malaysia or just invade Malaysia and Sabah and
establish a government there and sent all our prisoners
to Sabah.
Marianas Islands and Guam, our claim is based on the
Treaty of Paris. It is not so potent, our basis of our claim.
So what happened, it just fizzled out. There was a
referendum there and they refused to become part of our
territory and they rather be under the trusteeship of US.
Lets talk about Bangsamoro.
Q: How does it affect our territory?
A: It does not at all affect our territorys definition. Its just
delineating, defining what is considered to be the region
to be governed by Muslims in accordance with their
culture, their customs and their traditions. As long as if
they are not a sub-State, there can be no violation of the
definition of the national territory neither can there be of
the provision of the Constitution regarding having one
government because still they will be under the national
government but the control of the national government
over them is lesser as compared to local governments.
It is some kind of federal system of government wherein
they are considered supreme in their own sphere and
their laws and management of affairs is based on their
customs and traditions.
Will see until we read the Organic Law creating it and
until the Supreme Court will resolve the matter because
definitely there will be a challenge because I think it will
be based on the same objections that were raised in the
Bangsamoro Juridical Entity before during the Arroyo
administration. That case involving the North Cotabato. It
might be raised again and until the Supreme Court
decides on the issue it is not yet controversial that you
are to worry about it for the bar exams. We will wait and
see.
But the general principle is that there should be no sub-
state. At least it is just an autonomous government but
definitely not a sub-state because that would be contrary
to the Constitution, more particularly on having one
republican state and the definition of the national
territory.
Now, lets talk about territorial seas referring to the sea
waters along its coastline up to 12 NM. The airspace
above, no limits. Up to the universe. But the international
12
waters is for everybodys use. The subsoil you can go as
if as you can if you have the capacity.
You have other sovereign areas: the insular shelves, the
trench and etc just go over with that. The more important
there is the extended continental shelf.
On internal waters:
Q: what do you use as basis or method in determining
archipelagic waters? [BAR]
A: You used the straight-line method. Remember the
straight-baseline method wherein you connect the
outermost islands and all the waters inside are
considered as internal waters. Outside, considered as
part of the territorial seas up to 12 NM subject to
archipelagic plates, in other words, right of way.
Read the concept of Regime of Islands
Hence, far from surrendering the Philippines' claim
over the KIG and the Scarborough Shoal, Congress'
decision to classify the KIG and the Scarborough Shoal
as "'Regime[s] of Islands' under the Republic of the
Philippines consistent with Article 121" of UNCLOS III
manifests the Philippine State's responsible observance
of its pacta sunt servanda obligation under UNCLOS III.
Under Article 121 of UNCLOS III, any "naturally formed
area of land, surrounded by water, which is above water
at high tide," such as portions of the KIG, qualifies under
the category of "regime of islands," whose islands
generate their own applicable maritime
zones.|||(Magallona v. Ermita, G.R. No. 187167, August
16, 2011)
Q: What are regime of islands?
A: They consist of islands or naturally formed areas of
lands surrounded by water that remains above water
during high tide.
Bahala na ug tumoy ra like the Scarborough Shoal.
The principal forces, claimant states over certain territory
to maintain peace in the area because no country can
claim, exclusive ownership of any of these islands.
So extended continental shelf may also refer to the
contiguous zone.
B. State immunity
Lets go to Article II.
Q: What are the elements of the State?
A: People, Territory, Government, Sovereignty
People- what is significant is the provisions on
citizenship.
Territory- we have explained it already.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Government- the discussion will involve all about
government.
Lets talk about sovereignty.
Because the state is sovereign then there can be no
authority higher or equal to that. Therefore, not
subjected to the authority of the courts. The principle
why the state is sovereign, first of all because there can
be no legal right against the authority that makes the law
on which that right depends. (case inaudible) Also for
practical reason, if you subject the state to suits, the
government will just be busy entertaining suits rather
than doing its job.
And besides, under the Principle of Royal Dishonesty,
how can one who is sovereign like the king commit a
wrong against anyone? They only think the best of the
government for the best interests of the people. It can
never commit or do wrong to anyone. This is the
principle of royal dishonesty on the part of the state
because even if you have claims against it, the state is
not liable because it cannot do any wrong against
anyone.
Thus, as a general rule: You cannot sue the State.
Q: Now who is the state that you are referring to that can
be subject to a suit?
A: You have the Republic of the Philippines,
unincorporated agencies of the government exercising
governmental functions, the government officials and
employees performing governmental functions.
You cannot file a complaint if the defendant is the
Republic of the Philippines. Thats the general rule. But
sometimes there are cases filed against the Republic
and yet the action prospers. Why? Because other than
those enumerated entities that could be the subject to a
suit that is not allowed, there is a requirement that only
those suit against those 3 entities that would require the
government to do an affirmative act such as involving
appropriation of public funds or loss of government
property that is not allowed to be filed against the state.
You may sue the state for as long as it will not entail
appropriation of funds or loss of government property.
Example:
Q: In an application for registration of title, who will be
the respondent in that case if you were the applicant?
A: It will be the Republic of the Philippines, the Bureau
of Lands or the DENR.
Why? Because if there is no claim over the land, the
presumption of the law is that it belongs to the state. But
if you can establish that it does not belong to the state,
13
that it is an alienable land of the state that can be
disposed of and acquired, and then if it is awarded to
you then it does not involve any loss of government
property because it has never been part of the public
estate because you owned it. You are the owner of the
property. You are only confirming your ownership by
asking the court that the property be registered in your
name.
And thats precisely even if the Republic of the
Philippines is made party defendant, that action will
prosper.
Q: If you claim damages against the government and
you named the Republic of the Philippines as defendant,
this is a personal claim for damages, will your action
prosper?
A: Even if the claim is valid, under the principle of royal
prerogative of dishonesty, the case is dismissed
because the state is immune from suit.
Q: How about if you claim for just compensation against
the Republic because you were not paid when the
government took your property for the widening of the
road, can you sue the government through the DPWH?
A: Yes. It will not entail appropriation of public funds.
Before expropriation, there is already appropriation of
public funds. If there was no appropriation in the first
place, then the taking is illegal. Second reason for that,
according to the SC in many decisions, expropriation
must not be used as a tool to oppress property owners
whose property was taken for the use of the public.
You remember that Ministerio case vs CFI
At any rate, thats the bottomline, the common
denominator. If its the Republic of the Philippines, again
as I have said, only when it entails appropriation of
public funds or loss of government property.
In so far as agencies of the government, only those
agencies being sued that are considered as
unincorporated. They are considered unincorporated
because they do not have a personality independent that
of the Republic of the Philippines. They are part of the
government of the Republic of the Philippines. If you sue
an unincorporated agency, it is likened to suing the
government itself. Example of unincorporated agencies:
the different departments of government, the
administrative bodies of the government. If you sue, for
example, the Bureau of Fire because it didnt stop the
conflagration that is tantamount to a suit against the
state, and therefore the case should be dismissed
because the state is immune from suit. Unincorporated.
There are other agencies of the government, although
part of the Philippine government, but which are
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
considered as incorporated. They have their own
charters creating them allowing that institution of the
government in the first place to sue and be sued; like for
example those engaged in proprietary functions like
GSIS, PhilHealth, SSS. These are incorporated
agencies, like state universities. The charters creating
them allow them to sue, to acquire property, and be
sued in relation to the acquisition of the property - in
which case they are suable; unless they are performing
a purely governmental function, then the application of
immunity from suit would still apply.
Then of course you have Local Government Units. The
LGUs are hybrids; mixed. It has dual function: both
governmental and proprietary.
Q: Are LGUs suable?
A: Yes.
Q: Even if performing governmental function?
A: Yes, because under the Local Government Code, it
has consented to be sued.
Q: Are they liable?
A: No if it involves the exercise of a governmental
function, and therefore it will entail disbursement of
public funds and you will need another consent from the
local government and that is the passage of a
supplemental budget, an ordinance, authorizing the
disbursement. But it is suable. But exercising a
proprietary function because it is also engaged in
business, definitely it can be held liable. Suable and it
can be held liable likewise.
In so far as government employees and officials are
concerned, they are also immune from suit for as long as
they are performing governmental functions, except
special agents. Special agents under Art. 2180 (Civil
Code) the state has given its consent to be sued. The
special agent is one who discharges a function foreign
from his regular functions. The government has taken
risk there and it would not be fair that he would be out
there causing injury without any responsibility. Thus,
even if this particular employee or official is performing a
governmental function, but he is designated as special
agent, the state has consented to be sued, to prove the
claim against the state, via this special agent. Second,
even if a government official is performing a function
however without authority, or if he has authority, he
acted with gross negligence or with grave abuse of that
authority amounting to lack or excess of jurisdiction, the
state cannot protect him under the immunity from suit.
He can be sued in his personal capacity.
14
Q: PHILIPPINE AGILA SATELLITE Inc. vs JOSEFINA
TRINIDAD-LICHAUCO G.R. No. 142362 May 3, 2006
Lichauco was sued in her personal capacity because of
the denial of a franchise. She then invoked immunity
from suit so that the case will be dismissed outright.
Should the court dismiss the case outright?
A: No, because it still has to be established that she did
not act in excess of her authority or with gross
negligence or with grave abuse of her authority
amounting to lack or excess of jurisdiction. Because if
that is established then she will be held liable personally,
the case cannot be dismissed automatically. Although if
it is in the performance of a governmental function
likewise where ultimately it will be for the State to answer
for the liability, the case will not prosper.
The present action was denominated against Lichauco
and the unknown awardee, Lichauco was identified in
the complaint as "acting Secretary of the [DOTC]." The
hornbook rule is that a suit for acts done in the
performance of official functions against an officer of the
government by a private citizen which would result in a
charge against or financial liability to the government
must be regarded as a suit against the State itself,
although it has not been formally impleaded. However,
government immunity from suit will not shield the public
official being sued if the government no longer has an
interest to protect in the outcome of a suit; or if the
liability of the officer is personal because it arises from a
tortious act in the performance of his/her
duties||| (Philippine Agila Satellite Inc. v. Trinidad-
Lichauco, G.R. No. 142362, May 03, 2006)
(TN) Take note of those general principles. Those are
general principles. There are exceptions however.
WHEN THE STATE MAY BE SUED
You cannot sue the state unless the state gives its
consent. When the state gives its consent, you can now
sue it.
Q: How does the state give its consent?
A: Only through legislation, if it is express consent. It
would be by a general law or a special law. Or it would
be impliedly given by the state under certain
circumstances.
I repeat: the giving of consent can be express or implied.
EXPRESS CONSENT
Lets talk about express giving of consent. General laws.
It should be a law, ha, for express consent; not by
contract, not even by a declaration of the President.
Remember that case of Caylao vs Republic of the
Philippines GR No. 84645 March 29, 1993 where she
made a public declaration that the military made a
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
mistake, they should be investigated for liability in
relation to the massacre of the farmers of Hacienda
Luisita at the Mendiola bridge during her administration.
They used the declaration of the President to sue the
military, the AFP, for liability caused by the death and
injuries of the farmers. What happened? The action was
dismissed because the state case was immune from
suit. It was the AFP, government officials, who were
sued in their official capacity. The action definitely will
not prosper. But if they were sued in their personal
capacity, then of course it will prosper because the
negligence of an official is not an act of the state. As I
said earlier, the state cannot do wrong. It only does the
right thing. If you do the wrong thing, thats not the act of
the state but your own act as an employee or official.
The state will not get involved in it. You pay; not the
state.
As I was saying, it has to be by legislation, by a statute
passed by Congress.
Q: One time there was a contract entered into by a
government agency with a private individual. The
contract itself provides that in case of breach violation,
the office is suable. It can be sued. Now, would that be a
valid waiver of immunity?
A: No, because if waiver of immunity is express, it must
only be by legislation of Congress.
As I have said earlier, there are general laws and special
laws. The general laws: like the provisions of the Civil
Code (Article 2180, 2186); you have the Local
Government Code. These are general laws passed by
Congress where the government is allowed to sue.
Usually this is a consequence of the governments right
to acquire property and as such, in relation to the
acquisition of property, has the right to sue and be sued
in relation to its right to acquire or to possess that
property. These are general provisions of laws: 2180
refers to special agent. I think 2186 would refer to Local
Government units who do not properly maintain their
roads and drainage niya mahulog ka sa manhole. In the
law on torts, the state has given its consent to be sued
for this negligence that may have been caused by
improper maintenance or no maintenance at all of
government buildings and infrastructures. By that, the
state has waived immunity from suit.
Special laws are laws specifically passed by Congress
authorizing a particular individual to sue the state, where
the state has waived its immunity from suit in a special
law allowing an individual to prove his claim against the
state. A good example is the case of Merritt vs. the
Government of the Philippine Islands where it was
Congress who passed a law allowing the victim there to
sue, to prove his claim against the Veterans Hospital
owned by the government.
15
Its actually very easy when there is an express law. Ang
problema ang implied giving of consent.
IMPLIED CONSENT
Lets talk about implied giving of consent. You have 3
instances or rather 4 or 5.
First instance is when the government enters into a
commercial contract. Its not just any government
contract. It has to be proprietary or commercial contract.
It has no relation to the principal function of that office.
For example, COMELEC enters into a contract with a
printing company for ballots. Thats governmental
contract. DPWH enters into a contract with a contractor
to build bridges and roads. Thats governmental
contract. Thats not commercial. If the contract is purely
commercial where the government enters into a contract
with an entity to provide a canteen in the office, now
thats proprietary or commercial. In which case, if
proprietary or commercial, the state is considered to
have waived its immunity. It would be treated like an
ordinary individual.
(TN) But if commercial contracts, take note, as part of
the giving of consent expressed under PD 447, General
Accounting Laws: if you have claims against the state,
based on a contract for example, contractual obligations
of the state, you cannot sue the state directly. What you
must do in order to sue the state there are certain
requirements. You have to make a claim with COA; until
it is denied by COA, you can always go to the Supreme
Court on certiorari where you can now sue the state. So
it is only after your claim is denied by COA, that you can
sue the state for your monetary claims based on a
contractual obligation. The state has expressly given its
consent there. Even if your money claims is based on a
governmental contract, you can still sue not in the
implied but in the express giving of consent. But in the
express giving of consent, there is a requirement that
you must first make a claim with COA before you can
sue COA and the government agency that you are
claiming against with the Supreme Court.
Again, if it is a contract, the implied giving of consent is
limited to purely proprietary or commercial contracts.
Here, you can sue the state directly.
Second instance of implied giving of consent: when
government engages in purely business transactions,
commercial transactions - business, negosyo. It has to
be primarily commercial. Because the sometimes the
government may also engage in governmental function
and then part of the governmental function, to enhance
it, they may also be engaged in proprietary function.
Q: For example, the Bureau of Customs, their function is
to assess taxes; thats governmental. But theyre also
engaged in arrastre business to carry the items that
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
are heavy for purposes of assessment. Arrastre is
proprietary. It has nothing to do with the governmental
function because theirs is to collect taxes, but it
enhances the collection of taxes if they can see the item
itself where it will be brought before the office; might as
well engage also in arrastre business. If damage is
caused by the arrastre business, can you now sue the
Bureau of Customs?
A: No, because the arrastre business is not the pure
business that the Bureau of Customs is engaged in. It is
merely incidental to the performance of a governmental
function, and therefore it remains immune from suit.
And then you have when the state initiates the filing of a
suit against an individual for affirmative relief. Initiate,
meaning it is the government who filed the complaint first
against an individual and the purpose is to seek
affirmative relief.
Q: Why is this so important, the seeking of affirmative
relief?
A: Because if the purpose of the suit is to repel, to resist
a claim against the state, the state is not considered to
having waived its community.
Q: Case of PCGG v. Benedicto G.R. No. 129406 March
6, 2006, this is a landmark case. The PCGG initiated an
action against the Benedictos to claim certain shares of
stock of a company. They are saying Benedicto was
only used as dummy, the real owners being the
Marcoses therefore the shares are ill-gotten wealth from
the state. Now the SC declared that the shares of stock
belonged to the Benedictos and not the Marcoses. The
Benedictos then sued PCGG in their counterclaim; and
now the PCGG invoked their immunity from suit. Is
PCGG correct?
A: SC said no. The counterclaim will prosper because in
the first PCGG initiated the filing of the complaint against
the Benedictos for affirmative relief.
On the contrary you have Fernando Froilan vs Pan
Oriental Shipping G.R. No. L-6060 September 30, 1954
There was this transaction between the bank and a
private individual. This private individual failed to pay its
obligation and so the ship that was used as collateral
was foreclosed by the bank, the government intervened
to stop the foreclosure because the government claims
that the ship used as collateral belongs to the state.
Later, it was declared by the SC that it belonged to the
individual who owed money. The bank has already filed
a case against the government to stop the foreclosure
causing damage to the bank.
Q: Will the action prosper?
A: No, because what the government did in this case
was merely to repel or resist a claim against it which
16
claims that the ship was their property and trying to
protect their rights over the property.
Finally, as an exception, in expropriation cases, were the
property owner is not paid just compensation, he has the
right to sue the state or any government entity for the
payment of just compensation. There is no violation
there in the immunity from suit. The reason being that,
according to the SC, the immunity of the state from suit
should not be a tool to oppress its citizens.
This principle of immunity from suit also applies to
foreign governments and other international
personalities given legal personality including their
representatives.
Case: Archbishop of Manila relating of the acquisition of
a property that was sold to Vatican and then there was a
suit made by Vatican (a state within a state).
The Holy See vs Rosario G.R. No. 101949 December
1, 1994
Certainly, the mere entering into a contract by a foreign
state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The
logical question is whether the foreign state is engaged
in the activity in the regular course of business. If the
foreign state is not engaged regularly in a business or
trade, the particular act or transaction must then be
tested by its nature. If the act is in pursuit of a sovereign
activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for gain or
profit.
In the case at bench, if petitioner has bought and sold
lands in the ordinary course of a real estate business,
surely the said transaction can be categorized as an
act jure gestionis. However, petitioner has denied that
the acquisition and subsequent disposal of Lot 5-A were
made for profit but claimed that it acquired said property
for the site of its mission or the Apostolic Nunciature in
the Philippines. Private respondent failed to dispute said
claim.
Lot 5-A was acquired by petitioner as a donation from
the Archdiocese of Manila. The donation was made not
for commercial purpose, but for the use of petitioner to
construct thereon the official place of residence of the
Papal Nuncio. The right of a foreign sovereign to acquire
property, real or personal, in a receiving state, necessary
for the creation and maintenance of its diplomatic
mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations (Arts. 20-22). This treaty was
concurred in by the Philippine Senate and entered into
force in the Philippines on November 15, 1965.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
In Article 31(a) of the Convention, a diplomatic envoy is
granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action
relating to private immovable property situated in the
territory of the receiving state which the envoy holds on
behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic
envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this
case is the Holy See.
Q: Can it be sued?
A: if purely commercial, yes but if it is something to do
with the official function of Vatican, not suable.
That case involved the performance of an official
function therefore like any sovereign state it is immune.
Article II Declaration of Principles and State Policies
(Political Creed of the Government)
It is the enumeration of the obligations of the
government, underlying principles in the operations of
government.
TN: Article II is not self-executing. It cannot be the
source of rights and obligations. If violated, you cannot
go to court and seek judicial relief unless there is a law
that was violated based on Article II.
Similar to the Apostles Creed, there is no sanction there
that you will be less catholic if you violated. Not obliged
to observe. No binding effect if there is no law
implementing such. Legislation is needed to implement it
Taada v Angara G.R. No. 118295. May 2, 1997
It is true that in the recent case of Manila Prince Hotel
vs. Government Service Insurance System, et al., this
[31]
Court held that Sec. 10, second par., Art. XII of the
1987 Constitution is a mandatory, positive command
which is complete in itself and which needs no further
guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per
se judicially enforceable. However, as the constitutional
provision itself states, it is enforceable only in regard to
the grants of rights, privileges and concessions covering
national economy and patrimony and not to every
aspect of trade and commerce. It refers to exceptions
rather than the rule. The issue here is not whether this
paragraph of Sec. 10 of Art. XII is self-executing or
not. Rather, the issue is whether, as a rule, there are
enough balancing provisions in the Constitution to allow
the Senate to ratify the Philippine concurrence in the
WTO Agreement. And we hold that there are.
Remember the World Trade Agreement (WTA) where it
stipulates that Congress is prohibited from passing a law
contrary to the provisions of the WTA. That was
questioned by Tanada and others, in effect, in our
17
making of foreign policies, we are now controlled by
foreign policies. Where is now sovereignty or
independence of the Philippine state in the formulation of
its foreign policy? IOW, it will now violate the provisions
relating to independent foreign policy and the states
being sovereign.
SC dismissed the case outright saying that you cannot
use the provision of Article II as basis to question the
validity of that contract. Legislation is needed to
implement the provisions in Article. SC further discussed
that no man is an island and we cannot live by
ourselves, we need to relate with foreign policies. As
long as there is reciprocity and mutuality in the benefit, it
cannot be a violation.
In Oposa v Factoran, except on the provision of the
right to a balanced ecology, SC held that it is the only
provision that is self-executing. All the rest needs
legislation.
Oposa v Factoran G.R. No. 101083 July 30, 1993
While the right to a balanced and healthful ecology is to
be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not
follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right
belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-
perpetuation aptly and fittingly stressed by the
petitioners the advancement of which may even be
said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be
written in the Constitution for they are assumed to exist
from the inception of humankind. If they are now
explicitly mentioned in the fundamental charter, it is
because of the well-founded fear of its framers that
unless the rights to a balanced and healthful ecology
and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance
the second, the day would not be too far when all else
would be lost not only for the present generation, but
also for those to come generations which stand to
inherit nothing but parched earth incapable of sustaining
life.
C. General principles and state policies
(Only the important ones will be discussed, the rest is up
to you)
Sec. 1. REPUBLICANISM
Sec. 1 The Philippines is a democratic and republican
State. Sovereignty resides in the people and all
government authority emanates from them.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Republican representation and renovation kind of
government. Elect representatives in representation. In
renovation, when there are changes everytime a term of
office of a public official expires, you have new
administration that would introduce changes to the
government.
Because it is republican, it is understood that
sovereignty resides in the people. Whatever authority
exercised by officials, they must not forget that the
power comes from the people.
Q: How do you know that the system is republican?
A: You go into the manifestations of republicanism.
1. First, the existence of the Bill of Rights.
2. Observance of separation of powers
3. Non-delegation of legislative powers
4. Government of laws and not of men
5. Popular election
6. Accountability of public officials
7. Rule of majority
Etc etc.
TN: Among the powers that you need to remember are
the principles that are manifest in a republican system.
- Separation of powers, checks and balances and
delegation of powers (these are mentioned in
the syllabus for bar exams
The most recent decision on the principle of separation
of powers is the case involving PDAF, Belgica et al v
Executive Sec Ochoa, etc.
Belgica vs Ochoa G.R. No. 208566
November 19, 2013
Clearly, these post-enactment measures which govern
the areas of project identification, fund release and fund
realignment are not related to functions of congressional
oversight and, hence, allow legislators to intervene
and/or assume duties that properly belong to the sphere
of budget execution. Indeed, by virtue of the foregoing,
legislators have been, in one form or another, authorized
to participate in as Guingona, Jr. puts it "the various
operational aspects of budgeting," including "the
evaluation of work and financial plans for individual
activities" and the "regulation and release of funds" in
violation of the separation of powers principle. The
fundamental rule, as categorically articulated in
Abakada, cannot be overstated from the moment the
law becomes effective, any provision of law that
empowers Congress or any of its members to play any
role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus
191
unconstitutional. That the said authority is treated as
merely recommendatory in nature does not alter its
unconstitutional tenor since the prohibition, to repeat,
covers any role in the implementation or enforcement of
the law. Towards this end, the Court must therefore
abandon its ruling in Philconsa which sanctioned the
conduct of legislator identification on the guise that the
18
same is merely recommendatory and, as such,
respondents reliance on the same falters altogether.
Besides, it must be pointed out that respondents have
nonetheless failed to substantiate their position that the
identification authority of legislators is only of
recommendatory import. Quite the contrary, respondents
through the statements of the Solicitor General during
the Oral Arguments have admitted that the
identification of the legislator constitutes a mandatory
requirement before his PDAF can be tapped as a
funding source, thereby highlighting the indispensability
of the said act to the entire budget execution process
One of the issues raised is the constitutionality of the
pork barrel system, WON it violates the separation of
powers.
Explanation: there are three branches of the government
supposedly independent from each other because they
do not owe each other powers assigned by the
constitution. It would be express, implied or incidental
powers. For as long as the powers are assigned to that
branch, we call it the full discretionary power. As such,
it cannot be checked, intruded into, interfered, or
usurped. It shall be exclusive. If usurped, violation
occurs to the separation of powers.
Example: in relation to the PDAF, based on funds
allotted to certain members of Congress for projects that
they recommend.
TN: Budget preparation is exclusive to the president
under the constitution. It shall be submitted to congress
within 30 days from the opening of the regular session.
President enumerates the expenses of government with
corresponding amounts and source of the appropriation.
Special appropriation, state the source of revenue. If
general appropriation, it is sufficient that you have the
expense and the amount.
Q: why is it submitted to congress?
A: because it is congress that will pass the law under the
principle that there cannot be any disbursement of public
funds without appropriation or authority.
When congress appropriates the amount, it specifies the
nature of the expense, purpose and amount available in
the General Appropriation Act (GAA).
That power is exclusive to congress and cannot be
usurped by the president. Thats the issue in
Disbursement Acceleration Program (DAP) because
there is no identification of projects. They were
supposed to take it from savings and in effect mentioned
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
in the cases, Congress was denied to identify the project
and appropriate the amount.
PDAF is similarly situated. There was an appropriation
for PDAF. No question about that in the budget. But
remember that the function of congress is simply to
appropriate, not to implement the national budget.
Q: who implements the law?
A: It is the president
Based on the GAA, the president disburses the money.
What happened in PDAF.. History: Remember sometime
in the 1990s, it was challenged as to its constitutionality
in the case of PHILCONSA vs Enriquez where the
issue was WON it was constitutional for Congress to
identify the projects to which those appropriated funds. It
should not be constitutional since in effect they are
already implementing the budget. But the decision of the
SC was rather vague. SC held that it is not a violation of
the constitution since what the members did was merely
to recommend the project. Recommendatory only and
ultimately the discretion was left to the president. BUT
apparently, in the recent decision of the SC, it interferes
into the exclusive power of the executive to implement
and enforce the national budget. Because the matter of
identifying the project, they decide and determine the
project and who is going to be the beneficiary. In effect,
it is identified and found not just to be recommendatory.
SC held that it violates the separation of powers as it
interferes the implementation of that national budget
which is exclusive to the president.
PHILCONSA vs Enriquez, G.R. No. 113105, August
19, 1994
The authority given to the members of Congress is only
to propose and identify projects to be implemented by
the President. Under Article XLI of the GAA of 1994, the
President must perforce examine whether the proposals
submitted by the members of Congress fall within the
specific items of expenditures for which the Fund was
set up, and if qualified, he next determines whether they
are in line with other projects planned for the locality.
Thereafter, if the proposed projects qualify for funding
under the Funds, it is the President who shall implement
them. In short, the proposals and identifications made by
the members of Congress are merely recommendatory.
Sec. 2 THE INCORPORATION CLAUSE
Art. 2 is not self executing. These are only guidelines in so
far as the congress concerned in the making of laws, as to
the president in the execution of the laws, and as to the SC
is concerned in the interpretation of the laws applied in
19
actual cases. Except: the right of the people to a balanced
and healthful ecology because this is a public right.
TN: the case of Taada vs. Angara with respect to the
WTO.
Sec. 1 is about republicanism.
TN/(BAR): the principles of republicanism particularly on
the principles of Separation of powers, check and
balances of the powers and the blending of the powers,
non-delegation of powers, the power of judicial review on
the SC to implement on the separation and the non-
delegation of the powers, accountability of public
officials, rule of majority, so on and so forth.
Art II sec. 2, this is also important. This has been asked
several times because of public international law, which
is still part of Political Law.
Section 2. The Philippines renounces war as an
instrument of national policy, adopts the generally
accepted principles of international law as part of the
law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity
with all nations.
Principle of international law is generally accepted, it will
be applied by our courts as though it were local or
municipal statutes. So there is no need for legislation to
accept a generally accepted principle in international law
(GAPIL) in order to implement it in our jurisdiction or
apply it in actual cases in our courts. So lets enumerate
the sources of the generally accepted principles of
international law that are automatically adapted as part
of the legal system.
Treaties.
You have the ratified treaties entered into by our country
with other countries. By ratified, it means that it must
have been concurred by at least 2/3 of the members of
the Senate in order to bind us. There is no need of
legislation in order to apply these agreements.
For example, the World Trade Agreement (WTA) was
concurred in by the Senate, in which case, it was applied
as though it were an ordinary statute. Do you remember
the controversy regarding on the importation of rice?
Because in the WTA, there should have been free trade
on all items or goods, including rice. There shouldnt be
any limitation on importation from different countries. But
a reservation was made in the agreement itself, to
protect our own local farmers, because actually, the
agreement will compete with our local rice production.
But that reservation is only good for a certain period of
time which was 10 years after the execution of the WTA.
Q: Why did it become a controversy?
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: Because if applied, there is this agreement that they
should only pay for the importation of the rice, and they
no longer need to get the permit from NFA to make sure
that they are still within the limits and that the number of
kilograms they import is still within the prescribed limits.
And so they just order as many sacks of rice without the
requisite NFA permit. When the court had to resolve this
issue, it had to apply the WTA agreement as though it
were an ordinary law because it was part of the domestic
legal system already.
On the other hand, lets talk about the Rome Statute,
which created the International Court of Justice. Its
noteworthy to mention that this was never ratified by the
Senate, because they never had the chance to, because
Arroyo did not submit the Statute of Rome to the Senate
for concurrence. Nonetheless, the ICJ was established.
Q: Are we bound by the jurisdiction of the ICJ in the
event that one of us or our officials is found to have
committed human rights abuses covered by the
jurisdiction of the ICJ?
A: The general rules is, since we did not concur, that
agreement did not bind us, so were not subject to the
jurisdiction of the ICJ. Although theres also a principle
that we cannot also violate it simply because we did not
sign it. Thats the general rule. To be part of the legal
system automatically, that treaty must be concurred,
duly ratified, because it must be concurrence, not just
the signature of the President. Although technically when
we say ratification, its the President that signs it, and it
is generally discretionary on the part of the President.
Customary norms
Another source for GAPIL are norms of general or
customary laws. So there are customs or acts or
practices that have been adapted by the international
community. For as long as it has been practices for so
many years, and provided that it also has an obligatory
factor that obliges the international community to
comply, then it becomes a source of public international
law and under the incorporation clause, its automatically
adapted as part of the legal system.
TN of the case of Mijares et al vs Javier GR No. 139325
April 12, 2005. In the Mijares case, this was about the
recognition of foreign judgment by our courts. The
question there is: whether you can enforce a foreign
judgment even when there is no agreement between our
country and another country as regards the recognition
and enforcement of a foreign judgment.
You recall that case involving the violation of human
rights (TN) tried in the US, in Hawaii specifically, which
awarded damages to the victims of the human rights
victims during the Marcos administration. The problem
there is that they cannot satisfy the judgment because
20
the Marcoses did not have enough properties in
America, since their properties are in the Philippines. So
the human rights victims wanted to enforce this, but first
of all, our courts need to recognize that judgment coming
from a foreign court. Remember that we are sovereign
states, and so we cannot be bound by the judgment of
any court from a foreign state.
The second problem there is, there is no agreement
between the US and the Philippines that both will
recognize the court judgments of the other state. But it
has been the practice in the international community that
foreign judgments are recognized for as long as you
follow certain rules for its authentication, that indeed it
exists, that its in accordance with the rules, etc. then we
can recognize the same and even enforce it. So the SC
said in the case of Mijares that there is no obligatory rule
derived from treaties or convention that requires the
Philippines to recognize foreign judgments or allow the
procedure for the recognition thereof, however, GAPIL,
and by virtue of the incorporation clause, commands us
to recognize these practices even if they do not emanate
from treaty obligations.
So the customary practices are a combination of two
elements
TN:
1. Established, widespread and consistent
practices on the part of the states;
2. There is an opinion as to law or necessity.
So if these two elements are established, then it
becomes customary international law and it also
becomes a GAPIL, and so under the incorporation
clause, it becomes part of the legal system.
Lets have a concrete example and lets talk about the
immunity from suit of heads of state. So for example, if
the head of state commits rape in the Philippines publicly
and even if everyone witnessed the act. There is no
criminal prosecution because it is GAPIL that a
representative of a sovereign state cannot be subjected
to the authority of another states court. For as long as
the court knows that he is a head of state, automatically
the court will desist from proceeding with the case for
lack of jurisdiction because of the principle of immunity
from suit.
Treaties that have become customary norms.
This is another source of GAPIL.
Example: Do you remember the Geneva Conventions
where we were not signatories to these treaties? These
treaties, this was after WW2, allowed for the
establishment of military commissions which had
jurisdiction to prosecute war criminals.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
TN of the case of Kuroda vs Jalandoni G.R. No. L-2662
March 26, 1949. One of the captured Japanese
generals questioned the jurisdiction of the Philippine
military commission, saying that it had no jurisdiction
since its creation was invalid because the Philippines
was not a signatory to the Geneva Convention.
Q: What did the SC say about this?
A: It said that we might not be a signatory to it, but it has
to be noted that that Convention or Treaty has become a
customary law, and as such, it has also become GAPIL,
and is automatically adapted as part of the legal system
of the land, because again of the incorporation clause.
That principle was also applied in the case of the Statute
of Rome, because while we were not a signatory to it,
but the Statute of Rome was accepted by the
international community and through time it became a
customary international law. Meaning, even if there was
no concurrence or ratification, but by virtue of it being a
customary law, we are subject to it under the
incorporation clause because it has become a GAPIL.
TN also of the case of Pharmaceutical and Health Care
Association of the Philippines vs Duque G.R. No.
173034 October 9, 2007. Ive mentioned this before that
this pertains to the requirement that if youre a
manufacturer of milk, youre supposed to put in the can
or carton that breast milk is still the best milk in the
universe. At that time, the bill was still pending in
Congress, and so the manufacturers questioned the
requirement of Duque.
Q: Now, what was invoked by Duque who was then the
Secretary of Health?
A: That Convention where were a signatory that has
become a customary law that requires that it should be
stated in all milk products that breast milk is still the best.
Again, by virtue of the incorporation clause, this was
automatically adapted in our local laws. You dont need
local jurisdiction to implement it.
Q: But what happens when there is a conflict between a
GAPIL and a statute?
A: TN here guys of the case of Ichong vs Hernandez
G.R. No. L-7995 May 31, 1957, where the SC said that
as much as possible, both have to be reconciled
because it is not the intention of Congress or the
President to pass a law or enter into a treaty with the
purpose of intentionally violating existing laws or
Congress violating what has been agreed upon by the
President in a treaty. Thats always the principle: you
harmonize it. If it cannot be harmonized, which of these
two will prevail? You follow Ichong vs Hernandez, that it
should always be the municipal law, because after all,
the court that decides whether or not the international
21
law or the municipal law which should be sustained is an
organ of law, of Congress, in which case, it must always
sustain our own laws. But if the international law conflicts
with our Constitution, the Constitution always prevails.
But TN that in the international community, both statute
and law are considered as equal and no source is more
superior compared to the other.
So, the manner of construing the conflict is this:
It depends on which came first or later.
If for example, the law was passed prior to the treaty,
then always, the treaty prevails and it should be treated
as an amendment to an existing law. If the law was
passed after the treaty was signed, then it should be
construed as a law amending the treaty. So you follow
statutory construction and thats how we construe laws
conflicts between a treaty and a statute.
Regarding the renunciation of war. Its only aggressive
war. But I tell you class that in the BAR, the question is
always about the incorporation clause.
Sec. 3. CIVILIAN SUPREMACY
First of all, you have the President as the Commander-
in-Chief of the AFP, the highest authority who is a
civilian and not a member of the AFP.
As one of the instruments of maintaining the supremacy
of the civilian authority, you have the creation of court
martial that discipline the behavior of the AFP members,
the decision of which are subject to the review of the
President, in his capacity as the Commander-in-Chief in
order to maintain civilian supremacy over the military.
You also have some cases like IBP vs. Zamora, GR
141289, Aug. 15, 2000 24. Gudani vs. Senga, GR
170165, April 15, 2006
In the IBP case, this is about the deployment of the
marines in the malls. The SC said that theres no
violation of the civilian supremacy over the military
because the marines were still under the leadership of
the local chief police force, who is in charge in the
maintenance of peace and order.
In the Gudani case, this is when Gudani, notwithstanding
the directions of his Chief of Staff not to appear in a
legislative inquiry, defied the order and appeared and
testified. So he was court martial-ed. He questioned the
jurisdiction of the court martial by saying that all that he
did was to heed the order of Congress exercising its
power to conduct legislative inquiry. But the Supreme
Court said that no, your accountability is direct to the
Chief of Staff or to the President as the Commander in
Chief. You follow the chain of command in order to
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
maintain the supremacy of the civilian authority over the
military. The Chief of Staff, as directed by the
Commander in Chief (the President) told you not to
appear, in which case, you should follow that first,
because it would be too dangerous if a person can just
defy an order from the Commander in Chief. If there is a
sanction and Gudani cannot appear in a legislative
inquiry, thats already Congress problem and not
Gudanis problem, because his primary concern is his
accountability to the Commander in Chief and not to
Congress.
SECTION 5: RIGHT TO BEAR ARMS IN ORDER TO
PROTECT LIFE, LIBERTY, PROEPRTY
Section 5 came out in the BAR exam, and this is with
regard to the maintenance of peace and order if we are
to enjoy the blessings of democracy. There should be
protection of life, liberty and property and you need to do
this by bearing arms. In such a case, you are armed with
a gun or any weapon in order to protect your property or
your life or your liberty. So the question is this: is
carrying a firearm a right or a privilege that is merely
granted by the state?
TN: Remember the case of Chavez vs Romulo G.R. No.
157036, June 9, 2004, because in America, this is
considered as a property right, so therefore the permit
cannot just be revoked by the state without hearing. In
the case of Chavez, he questioned the order of the
General Chief of the PNP revoking all the permits of all
those who had firearms without hearing, or the
revocation was effected by that mere pronouncement.
So, Chavez was saying that that cant be done because
thats an intrusion to the right of the person to protect his
life, liberty and property without due process. But
according to the SC, the right to carry firearms is not a
property right and so it is not covered under the due
process clause. It is a privilege granted to a person
subject to revocation to be exercised by the state under
its police power.
SECTION 6: SEPARATION OF CHURCH AND STATE
What is important under the separation of church and
the state are the exceptions.
Exemptions of the principle of separation of Church
and State:
1. Tax exemptions for those actually, directly and
exclusively used for religious purposes. Number
one as an exception recognizing the contribution of
the church to the state is tax exemptions to
properties that are actually, directly and exclusively
used for religious purpose, however limited only to
property tax, regardless of ownership. Purpose has
to be looked into, not mere ownership.
22
2. Teaching of religion in public elementary and
high schools. You also have the teaching of
religion in public elementary and high schools.
Remember that for as long as there is consent
from the parents or guardians in writing and that
it is not within school hours and without an
additional cost to the government to be
conducted by an accredited religious teacher.
That is allowed in public schools.
3. Religious people in the military and in
orphanages. Another exception is on the
appropriation of public funds. That is prohibited if
it is used for the support of any church or any
priest and minister, except when the priest or
minister is working for the AFP or for
orphanages or government leprosarium, they
can receive support from public funds from the
government. That is an exception.
4. Ownership of educational institutions.
Finally, on ownership of educational institutions.
The rule is only a Filipino citizen or a private
Filipino corporation can establish an educational
institution, except when that educational
institution is established by a religious group or
mission board. Even if they are all foreigners,
they may do so by way of exception as
accommodation to the church as an exception to
the separation of church and state.
Practical application of this concept? TN of that RH Law,
the case of Spouses Imbong et al vs the Executive
Secretary GR No. 204819 April 8, 2014 and many
other cases. That was decided only sometime in April
2014. One of the things that was stressed there.
Verily, the principle of separation of Church and State is
based on mutual respect. Generally, the State cannot
meddle in the internal affairs of the church, much less
question its faith and dogmas or dictate upon it. It cannot
favor one religion and discriminate against another. On
the other hand, the church cannot impose its beliefs and
convictions on the State and the rest of the citizenry. It
cannot demand that the nation follow its beliefs, even if it
sincerely believes that they are good for the country.
Consistent with the principle that not any one
religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term
"church" in its generic sense, which refers to a temple, a
mosque, an iglesia, or any other house of God which
metaphorically symbolizes a religious organization.
Thus, the "Church" means the religious congregations
collectively.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Balancing the benefits that religion affords and the need
to provide an ample barrier to protect the State from the
pursuit of its secular objectives, the Constitution lays
down the following mandate in Article III, Section 5 and
Article VI, Section 29 (2), of the 1987 Constitution. xxxx
In short, the constitutional assurance of religious
freedom provides two guarantees: the Establishment
Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the
State from sponsoring any religion or favoring any
religion as against other religions. It mandates a strict
neutrality in affairs among religious groups." Essentially,
it prohibits the establishment of a state religion and the
use of public resources for the support or prohibition of a
religion.
On the other hand, the basis of the free exercise
clause is the respect for the inviolability of the human
conscience. Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering
with the outside manifestations of one's belief and faith.
||| (Imbong v. Ochoa, Jr., G.R. No. 204819, April 08,
2014)
D. Separation of powers
The recent decisions applying of the separation of
powers is that case of Belgica, et al vs. Executive
Secretary Ochoa and SJS et al vs. Drilon et al and the
cases relating to PDAF.
Q: One of the reasons why PDAF was declared as
unconstitutional was because it was violative of
separation of powers. How?
A: Considering the 2 other cases that were rendered by
the SC prior to this case, these are the cases of
Philconsa vs. Enriquez and LAMP et. al vs. Sec. of
Budget and Mgt. and Orders. In the case of Philconsa,
the SC was saying that there was no violation of the
separation of powers because in the PDAF, what the
congressmen and senators do, they simply recommend
the projects to which the funds will be allotted to. Its
recommendatory, its not for them to actually determine
the project to be supported or set for, in so far as the
PDAF is concerned, there is no intrusion of the power in
the executive branch to execute the general
appropriation act. In the case of LAMP (April 2012), the
SC did not make any clear pronouncement whether
there was clear separation. It simply ruled that it was not
substantiated by LAMP that indeed there was a violation
of separation powers because it was not supported by
evidence that indeed the congressmen or senators
interfered in the execution on the appropriation law, as
regards to the disbursement of funds relating to projects
that were identified by the members of congress. In
other words, there is no clear ruling on the principle of
23
separation of powers relating to PDAF because there
was no evidence to show that the principle was violated.
Finally, this case of Belgica, the SC was already clear on
the pronouncement that there was a case and up to that
case, with regard to the PDAF expended, there exists a
violation of the separation of powers.
One of the things that was stressed there, while
according to the SC the state respects religion and the
church, or anyones belief, like if you believe that
contraceptive should not be used as a form of preventing
pregnancy or family planning purposes and all, the State
respects respect. But your belief or other peoples belief
should not be imposed upon the state because there is
separation of the church and the state.
There may be some accommodation because after all
the state has recognized the contributions of the church.
The bottom line there is that for as long as there is no
clear and imminent danger of any substantive ill to
happen that the state has the obligation to prevent, by all
means, the state should allow any person to enjoy his
religious belief or non-belief of anything.
In the case of Estrada vs Escritor A.M. No. P-02-
1651. August 4, 2003, you have another term, as long
as there is no compelling state interest, or national
security or for public order, public convenience or public
health, by all means you should be allowed to freely
exercise religion or whatever beliefs you have under the
Principle of Benevolent Neutrality- Accommodation.
Given that a free exercise claim could lead to
three different results, the question now remains as to
how the Court should determine which action to take. In
this regard, it is the strict scrutiny-compelling state
interest test which is most in line with the benevolent
neutrality-accommodation approach.
Under the benevolent-neutrality theory, the
principle underlying the First Amendment is that freedom
to carry out ones duties to a Supreme Being is an
inalienable right, not one dependent on the grace of
legislature. Religious freedom is seen as a substantive
right and not merely a privilege against discriminatory
legislation. With religion looked upon with benevolence
and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances.
Considering that laws nowadays are rarely
enacted specifically to disable religious belief or practice,
free exercise disputes arise commonly when a law that
is religiously neutral and generally applicable on its face
is argued to prevent or burden what someones religious
faith requires, or alternatively, requires someone to
undertake an act that faith would preclude. In essence,
then, free exercise arguments contemplate religious
exemptions from otherwise general laws.
Strict scrutiny is appropriate for free exercise
challenges because [t]he compelling interest test
reflects the First Amendments mandate of preserving
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
religious liberty to the fullest extent possible in a
pluralistic society. Underlying the compelling state
interest test is the notion that free exercise is a
fundamental right and that laws burdening it should be
subject to strict scrutiny.
Sec. 7 Independent Foreign Policy
In the case of Tanada vs. Angara (id), while be believe in
Independence, Sovereignty, Territorial Integrity and
Defense etc. you must also understand that no man is
island, should there be any exchange or trade or
whatever, this arrangement should be based on Equality
and Reciprocity. TN
Sec. 8 Prohibition against the stocking of Nuclear Arms.
One of the issues raised in that amendment to the VFA
now with the controversy of China. They are going to
question the validity of the Executive Agreement signed
by the President recently to the U.S. allowing the U.S.
troops even to stay specifically on previous bases that
they have abandoned like Subic or Olongapo. There
may not be a problem in the entry; the problem is on the
possibility of using nuclear firearms. It is not revoked and
that is prohibited under the Constitution.
TN: As a general rule, the entry of foreign military troops
is prohibited by the Constitution.
Except here it was only by way of an exception rather
than as a general rule, specifically because of the
possibility of nuclear weapons being brought here into
country. That is prohibited. But suppose in the future,
(alangan man primi canyon nalang cge atong gamiton,
unya tanan nuclear weapons), it depends on national
interest, and it is Congress who will determine that.
Sec. 12 Sanctity of the Family
This is the bases on questioning the constitutionality of
RH Law, otherwise known as RA 10354.
TN: That it may violate or threat the life of an unborn. To
the controversy or issue on when does life start,
because of the use of contraceptives. They are saying in
effect it promotes abortion, (unsaon man nimo pag abort
kung wala paman gani) it prevents fertilization, because
they are saying precisely that should start from the
contact. It cannot be understood.
What must be emphasized is that there is no violation of
the rights of the unborn according to the SC because
what is being protected is the fertilized ovum from being
expelled. It does not allow abortion. They are trying to
give access to the poor women to protect their
reproductive health in having so many children as a kind
of means of leisure so that they can enjoy without paying
for it. Since they have access to contraceptives, they will
have more children, and more mouths to feed. For as
24
long as the ovum has not been fertilized yet, there is no
violation. What is being prevented is the expulsion of the
fertilized ovum, in fact the law is against abortion.
The provisions that were declared unconstitutional are
Art. 7, 17 and 23.
Take for instance, Ill give you an example. One of the
provisions in RA 10354, if for example you are an
employee of POPCOM (population commission) or in a
health care, your duty is supposed to be to introduce
contraceptives as a means of family planning. And since
it is against your religion, what is your tendency? You
will not introduce that to the public especially to the poor
because you would feel guilty about introducing it
because as far as the church is concerned that is a sin,
there can be only family planning but the natural way.
So many women are deprived because they cant afford.
But for you it is a sin. So you do not introduce. But do
you know under the law you can be penalized? So the
SC said that is UNCONSTITUTIONAL. Now you would
be a violation of the freedom of religion. It is true that you
cannot impose your beliefs but you should not also be
punished for what you believe in.
Penalties for Health Service providers that require
parental consent from minor patients who are not in an
emergency or serious situation. So even for a minor who
wants an abortion, it is allowed under the law and it is
prohibited and was declared UNCONSTITUTIONAL.
Allowing married women, not in an emergency situation
or life threatening case, to undergo reproductive
procedure without the consent of the spouse. If you were
the spouse, how would you feel? Your wife was already
ligated and you were not informed. Before that was
allowed under the law and is now declared
UNCONSTITUTIONAL.
Those were the provisions that were declared
UNCONSTITUTIONAL.
Sec. 16 Balanced and Healthful Ecology
Case in point: Oposa vs. Factoran (id). All the rest of the
cases were decided taking into consideration this case.
This is a landmark case. The point that was emphasized
in the Oposa case, which was reiterated in succeeding
environmental cases, that this is Self-Executing. You
dont need legislation in order to enforce it. The SC also
emphasized the fact that this is a public right of the
people. This is as important as the guaranteed
protection under Art. III.
Sec. 17 Priority to Education
This is with reference to giving priority to education. This
is always invoked by the students against tuition fees
hike, that the government should give priority to
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
education by subsidizing, especially the government
universities and colleges. This is merely directory.
General Rule: The provisions in the constitution are
mandatory.
Q: What are the exceptions? What are the provisions in
the Constitution that is not mandatory?
A: Sec. 17. It is merely directory in the sense that even
if its not followed, there canot be no violation of the
Constitution.
According to the SC, as it was emphasized in the
Carague vs. Guingona (id) case, the government is
never precluded or deprived from attending to other
imperatives of the government. There are other needs of
government that needs attention, not just education. But
there is that direction or instruction to give priority. And
so with that priority, we have free education, in
elementary and even secondary like night school. But in
college, you cannot college education because this is
not mandatory. The government can only provide for
State Colleges and Universities with low cost tuition fees
or otherwise grant scholarship to deserving students in
college.
This is on the indispensible role of the private sector.
This is part of the Non Governmental Organizations and
to implement this you have like, allowing them the
chance to participate in governance, such as the
establishment of the party-list system. Wherein they can
have the chance or opportunity to become members of
the government.
Sec. 22 Indigenous Cultural Communities
On the promotion of indigenous cultural communities
within the framework of national development, this was
always invoked in the case of Bangsamoro. Political
Entity, and the concepts of Ancestral Domain and
Ancestral Lands, this will be discussed when we go to
the topic on Regalian Doctrine.
Sec. 25 Autonomy of Local Govts.
To ensure local autonomy. There will be a separate
discussion on this on Art. X. Suffice to say what is now
relevant is the Bangsamoro in relation to the framework
agreement. I suppose once it is passed there will be a
question later in the future regarding its validity. What is
emphasized is Local Autonomy. Local Devolution of
Services rather than Decentralization of powers.
Q: What do you mean when you say Decentralization of
Powers?
A: It is the transfer of powers from the National
government to the Local Government
25
There is no such thing. Our local governments are not
independent from the National Government. They are
still under the control and supervision of the National
Government.
Q: Who has the control of Local Governments?
A: It is Congress
Q: Who has the supervision?
A: It is the President
Sec. 26 Equal Access to Opportunities for Public Office/
Prohibition of Political Dynasties
BAR Q: Is Political Dynasty Unconstitutional?
A: Until there is a code that punishes political dynasty
for penalties and activities defined as such, there is
political dynasty to speak of as of today.
The thing is you are given equal access and opportunity
to participate in governmental affairs. So just because
you have that right, you can demand.
Like you have the case of Pamatong vs. COMELEC,
G.R. No. 161872 April 13, 2004 who wanted to become
the President of the Republic, however he was declared
to be a Nuisance Candidate. He invoked Sec. 26 saying
that I have the right to equal opportunity and access to
public service, why are you denying me of this right.
SC said that this is not self-executing. There are laws
providing for limitations and qualifications. He was
running against Estrada. Nobody knows him, he does
not have the money to campaign, so Nuisance
candidate, you are disqualified.
The "equal access" provision is a subsumed part of
Article II of the Constitution, entitled "Declaration of
Principles and State Policies." The provisions under the
2
Article are generally considered not self-executing, and
there is no plausible reason for according a different
treatment to the "equal access" provision. Like the rest
of the policies enumerated in Article II, the provision
does not contain any judicially enforceable constitutional
right but merely specifies a guideline for legislative or
3
executive action. The disregard of the provision does
not give rise to any cause of action before the courts.
Sec. 28 Honesty and Integrity in Public Service
This is with regards to the mandate of the government to
maintain honesty and integrity.
You have now the requirements of SALN Statement of
Assets Liabilities and Net Worth, they are also abusing
this. What happened? Because of this, it took no less
than the Chief Justice of the Supreme Court being
impeached because of his failure to state correctly his
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
statement of assets and liabilities. Why is that that after
that, almost all the members of Congress corrected their
SALN. Why did they not give him the chance to correct
it? Because under the law it provides for reservation that
if it is incorrect, you are given a period of time within
which to make the necessary corrections to state the
actual assets and liabilities that you have.
Q: As part of accountability should it be disclosed to the
public?
A: There is already a recent decision of the Supreme
Court on this matter. There is this order of the SC
prohibiting the disclosure of the assets and liabilities.
The Justices and Judges were saying, Ah we can be
kidnapped for ransom because the public knows our
assets and liabilities. But recently in 2013, the SC was
saying that these are public records, and should be
disclosed to the public as part of public accountability
subject to rules that may be prescribed in the disclosure.
[2013 case involving the SALN of lieutenant focuses
more on AMLC freeze order, this 2012 case is more
appropriate]
RE: REQUEST FOR COPY OF 2008 STATEMENT OF
ASSETS, LIABILITIES AND NETWORTH [SALN] AND
PERSONAL DATA SHEET OR CURRICULUM VITAE
OF THE JUSTICES OF THE SUPREME COURT AND
OFFICERS AND EMPLOYEES OF THE JUDICIARY.
A.M. No. 09-8-6-SC June 13, 2012
The Court notes the valid concerns of the other
magistrates regarding the possible illicit motives of some
individuals in their requests for access to such personal
information and their publication. However, custodians
of public documents must not concern themselves with
the motives, reasons and objects of the persons seeking
access to the records. The moral or material injury
which their misuse might inflict on others is the
requestors responsibility and lookout. Any publication is
made subject to the consequences of the law. While
public officers in the custody or control of public records
have the discretion to regulate the manner in which
records may be inspected, examined or copied by
interested persons, such discretion does not carry with it
the authority to prohibit access, inspection, examination,
or copying of the records. After all, public office is a
public trust. Public officers and employees must, at all
times, be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.
E. Checks and balances
Q: How was this violated?
In the exercise of the powers incumbent, we have three
branches - executive, legislative and judicial the
powers are granted by the constitution. For as long as
the express grant of powers by the constitution, these
26
are considered as full discretionary power of the each
branch and therefore as a rule they cannot interfere with
the two other branches in the government but the
confusion will usually be resolved because corollary to
the separation of powers to balance the power where
there is a checking and sometimes the powers are
shared and thats what we called principle of blending of
the powers.
On the checking for example, in the making of the laws,
we have the president power to veto although it is within
the full discretionary power of congress to make laws,
that power can still be checked by the president through
its veto power likewise, the same power can be checked
ultimately by the SC in the exercise of judicial review.
Thats checking.
In the blending of the power or the sharing of the power,
take for instance the preparation of the budget, the
budget primarily under the constitution is prepared by
the executive department the president that is so
provided in the constitution but the constitution also had
it shared with congress by requiring the president to
submit the budget to congress for appropriation. So we
have the stages in the preparation of the budget and
finally in the enforcement. The budget will be submitted
within 30 days from the opening of the regular session of
congress to congress for appropriation the bill however
should originate or should start or initiated by the House
of Representative. Your appropriation law is passed and
then it will be submitted to the president, the president
under his veto power can veto it not necessarily the
whole thing this is the exemption. He can make itemized
veto as to the amount or as to particular project because
it goes to show that the president has the discretion to
identify projects to which the money should be extended.
So, the one who propose is first the congress and the
one who spends the money from the purse it is the
president under the principle of separation of powers or
discretionary powers they cannot be intervened with.
Q: Assuming that the general appropriation act was
passed and approved by the president, what would be
the next step?
A: It would be enforced.
Q: Who is going to enforce the budget?
A: Under the constitution, it is the presidents power to
enforce.
Then finally, oversight function of congress to determine
if indeed the funds of which that were appropriated for
certain projects as identified in the general appropriation
act had actually been implemented and they would pass
laws or determine or review whether they were effective
or not. Thats oversight function of congress. Thats the
process of budget preparation.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Q: With respect to PDAF applying these steps, how does
the separation of powers violated?
A: So you have the president submitting the budget, they
appropriate funds. In accordance with the budget that
were submitted by the president, that may include the
PDAF allotted for members of congress but it does not
say exactly particular projects for which this PDAF are
being allotted for because that function is the function of
the president. It is for him to spend the money and
identify the projects. Now then, under the law of PDAF it
authorized the members of congress to identify the
project for which the funds are appropriated for.
Q: In effect, interfering into what?
A: The execution of the general appropriation act. Thus,
a violation of separation of powers. Also, it violates the
delegation of powers because that power to identify the
project under the constitution or expenditures of the
funds is assigned to the president and instead the
president refer it to the senators to identify what projects
are they going to support their PDAF for.
Basically, that were the reasons that were advanced by
the SC in saying that there was a violation of the
separation of powers and, even more on the provisions
of the constitutions were violated because of PDAF.
We have many old cases where they is always a
discussion on the separation of powers. If there is any
case that would reach to the SC involving the president
and congress, its always on the question of
usurpation/interference in the exercise of these powers
and thus violative of the separation of powers and
ultimately it is the SC that decides on it, through the
exercise of judicial review.
F. Delegation of powers
In connection of the separation of power is the non-
delegation of powers. The rule is in as much as the
constitution assigned each branch its powers, then it is
establish for that branch to exercise. It cannot just simply
delegate it to someone else simply because they are
afraid to exercise their power or they dont like to
exercise the power.
Q: So, in as much as the delegated power, why
delegated? Who delegated the power?
A: the people through the constitution. The constitution
assigned the powers and the people elect the
representatives to exercise to rule the power to each
particular branch. So what has been delegated, is now
the principle, cannot be delegated to another delegate.
Thats the general rule.
Q: But what happened in reality because of the growing
complexities of the needs of the people in the society?
27
A: Theres more on to the delegation on the power rather
than confining it to a branch on what could be the branch
to exercise. And thus, we have the exception called
permissible delegation of powers.
Q: What would be on the delegation of legislative
power?
A: This power is primarily assigned to congress. The
constitution says this power may also be delegated to
another entities or individuals in the government.
So lets have the exceptions.
The exceptions are:
1. delegation to the president (sec 23 and 28 of art.
6);
2. delegation of the power to the administrative
bodies under the executive department under
the principle of subordinate legislation;
3. delegation of powers to local government units
under RA7160;
4. delegation of the power to the people under art.
6 sec 32 & RA 6735.
With regard to sec. 23 this is the emergency power that
may be delegated to the president.
Q: So if youre ask in the MCQ, where does this power
originate?
A: It originates from the congress then delegated to a
law in order for the president to exercise the power.
So, in as much as this is a delegated power, it is a
limited power. No less than the constitution sec 23
enumerates the limitations on the exercise of the power.
1) There should be a law or statute authorizing the
delegation in cases of a war or a national emergency.
TN: because this has become controversial when
president arroyo issued Proclamation 1017 declaring a
state of national emergency. If you are to compare this
to a declaration the existence of the state of war, under
the constitution it is clear that it is for congress to do so
because the purpose of which is to determine whether
the emergency power should be delegated to the
president in case of war, under sec. 23.
Q: So the question on the issue whether or not can
declare a state of national emergency? Should it be
congress to do that, as a prelude to or a condition to a
delegation of emergency power? It is not then a
usurpation of legislative function to declare a state of
national emergency, so that congress will have a reason
to delegate the exercise of emergency power to the
president? What was the decision of the SC on this
matter?
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: The SC in the case of David et al vs. Drilon and
Exec. Secretary GR 171396 May 3, 2006, SC was
saying that there was no violation at all of the separation
of power neither the non-delegation of powers in this
case because the president being the chief executive is
in the best position to know the state of peace and order
in the country as the PNP is directly under the
supervision of the president. As to whether there is any
threat to national security the president is in better
position compared to congress, as the national defense
and the AFP are directly under her control and
supervision. In other words, the president, as the
commander in chief of the armed forces, all that she did
was to call upon the armed forces to assist her in the
performance of her function which is so provided under
the constitution. Therefore, there cannot be a violation of
separation of powers. But in the declaration of the
existence of the state of war, it is not for the president to
do so because the constitution expressly provides that it
is the congress by 2/3 votes. (BAR)
Q: (BAR) what if there is no declaration of the existence
of the state of war? Can she not declare war then being
the commander in chief?
A: She was never precluded from declaring war even if
there is no declaration of a state of war or she can
exercise the emergency power such as disbursing funds
in the prosecution of the war because there cannot be a
delegation without the congress declaring the existence
of the state of war. So you make a comparison, in the
case of a declaration of national emergency or state of
rebellion.
While it is true that the president can declare a state of
national emergency without a law being passed
authorizing her to do so, she cannot however, exercise
emergency power in relation to it because sec. 20 is
clear that there has to be a statutory law giving the
exercise of the power to the president; this is part of the
reason why partly the Proclamation 1017 was declared
unconstitutional.
Unlike in a declaration of state of war, the president can
still declare war even without a declaration of the
existence of a state of war provided that she does not
exercise emergency powers. It is only temporary, the
purpose of which is only to carry out the proper and
necessary defense policy of congress.
A declaration of state of war is not the same with a
declaration of a state of national emergency. A
declaration of a state of national emergency can be a
prelude to a declaration of martial law or suspension of
the privilege of the writ of habeas corpus. It is still within
the power of the president to declare being, not only as
the president, but also as the commander in chief of the
armed forces. In the matter of declaration of state of war,
28
the constitution has expressly provided that only
congress can make such a declaration. While the
president as the commander in chief may declare war
without a declaration of the existence of a state of war,
he cannot exercise emergency powers nonetheless.
The exercise of emergency power is only temporary,
meaning as long as the war exists, he will continue to
exercise the power provided that it will not last until the
next adjournment of congress; automatically the
exercise of the power will be withdrawn.
TN in an MCQ: There is no need of a statute or a law to
withdraw the power from the president by congress, by a
mere resolution it can be withdrawn (a resolution does
not require the signature of the president) so that the
president will not have a chance to veto the withdrawal
of emergency powers from him.
Aside from sec. 23 you have sec. 28 on tariff powers of
the president wherein the president also has the power
to tax such as: tariff rates, import/export quota,
wharfage dues, and other tax impost and assessment.
TN: this has to be expressly delegated to the president,
the standard should be within the framework of the
national development of the economy of the country.
Also, TN: the case of Abakada Guro Party List v
Purisima GR No.166715 August 14, 2008 recall the
increase of VAT from 10% to 12% where there was an
accusation that the president usurped legislative
function by declaring an increase of the VAT, but it was
clarified by the SC that while the president has the
power to tax, that does not include domestic taxation
because such power is vested in congress. In this
case, there was no usurpation of legislative function
because all that the president did here was to ascertain
the facts whether the requirements for an increase of
the VAT as provided in the law were present because
these offices that provide for the information are under
her, and when she learned that all requirements under
the law have been complied with, she had no choice but
to implement the increase. She just ascertained the
facts, and when found to be existing, she just
implemented the law, she did not make the lawthat
function is exclusive to congress in so far as taxation is
concerned.
Then you have the exercise of the legislative power by
the administrative bodies. So you have the
departments, agencies and bureaus of the government
authorized to promulgate rules and regulations in order
to implement existing laws. First of all it presupposes
the existence of a law passed by congress, and as
much as the law cannot cover everything, as theyre not
experts in all fields. You have the experts coming from
the different administrative bodies providing for details,
parameters or boundaries within which you implement
the law for effective implementation for the promotion of
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
the general welfare by way of promulgating rules and
regulations.
Q: Why is this considered as a delegation of legislative
power?
A: Because these rules and regulations have the force
and effect of laws, which means that if you violate the
rule, it is tantamount to violating the law itself, which is
only being enforced by the rules and regulations. Thats
why we call it implementing rules and regulations (IRR).
It is what we consider as subordinate legislation,
providing for details in the contingent provisions that will
at least anticipate how the law might be enforced
effectively, not just at the present time, but also the
future needs of the people in relation to the law.
However, there are certain requirements you have to
follow, certain standards, like it has to be complete: you
have to pass the completeness test and sufficiency of
standard. In other words, there is nothing that is left to
the administrative body with what the law is, all they do
is to simply apply the law by promulgating rules and
regulations. It is more of rule execution rather than law
making, rule executing or rule making to implement the
law.
TN in relation to the completeness test: read the case of
Defensor-Santiago v Ramos (id) the resolution of the
Comelec implementing RA 6735 on the initiative on the
amendments to the constitution, was declared
unconstitutional because in the first place, RA 6735 did
not provide for procedure on how to propose
amendments to the Constitution through charter change
by the people directly, there is nothing in the law. So
how can the Comelec then promulgate rules that are
absent of any authority by any law because the law is
insufficient or not complete.
Then you also have to pass the sufficiency of standard:
there has to be a sufficient standard on the
promulgation of the rules and regulation.
TN: The most recent decision regarding that is the case
of Gerochi v Department of Energy GR No. 159796
July 17, 2007, relating to the EPIRA law that imposes
universal charge on electricity distribution. There was an
accusation against the department of energy (DoE) that
it was usurping legislative function because in effect it
imposes taxes on the distribution of electricity. The
Supreme Court held that this was not taxation power
that was exercised by DoE because it has no power to
do so, that power is vested in congress. What they did
was to promote the general welfare. Promotion of
general welfare that was the sufficient standard,
universal or national electrification, distribution of
electricity all over the country for the promotion of the
general welfare. When the DoE imposed an amount in
the general fund for universal charge for the purpose of
adding funds to be used in the distribution of electricity
all throughout the country.
29
Finally, we have this requirement on, the rules and
regulation promulgated should be with the imprimatur of
the head of the department it is not just by the chief of
the bureau. Case in point, you have People v.
Echegaray GR No.117472 February 7, 1997 on the
manual relating to the implementation and execution of
the lethal injection. There was a law which imposes
death penalty using the lethal injection.
Q: Who is in the best position to promulgate the rules on
how to do it?
A: The experts from the Bureau of Corrections and Jail
Management. However in this case, the promulgated
rules were only signed by the Director of the Bureau of
Corrections, it was never approved by the Secretary of
the Department of Justice. SC emphasized that while a
bureau may promulgate rules and regulations as an
administrative body, it should be however, with the
imprimatur of the superior of the department under which
the bureau belongs.
Then we have the delegation of the power to the LGUs.
This is important!
Q: Among the government units, what are the political
subdivisions?
A: autonomous regionsARMM (which will soon be
replaced by the Bangsamoro Political Entity (BPE) as
soon as the framework agreement is passed into law),
provinces, cities, municipalities, barangays.
Our system of government is unitary, although we are
trying to establish local autonomy.
Q: What is the extent of local autonomy?
A: There is no decentralization of powers rather only
decentralization of administration. There cannot be a
state within a state. If you consider the Bangsamoro as a
sub-state or a juridical entity, then it will be contrary to
the provision of the constitution relating to the system of
government that we have under the 1987 Constitution. It
can only be considered as an autonomous political
subdivision.
Q: With respect to the delegation of legislative powers,
can it (BPE) form its own laws?
A: Yes it can, the same with other political subdivisions.
However, BPE may be special to a certain extent
because theyre given more independence as compared
to other political subdivisions. These are embodied in the
framework agreement. Anyway, the general concept
here is that they will have their own laws that will be in
conformity to the culture of the people of the different
provinces composing the Bangsamoro.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
TN in so far as the province and the others: can they
pass laws?
Yes.
Q: This is delegated by what law?
A: RA 7160 otherwise known as the Local Government
Code under the general welfare clause.
TN: the delegation of the power involves passing laws
that are not contrary to the constitution. Likewise, it
should not be in violation of any existing laws passed by
congress because LGUs cannot rise above the source of
their authority. Therefore, they cannot pass a law in the
guise of promoting the general welfare while prohibiting
an activity that is allowed under existing laws. They may
only regulate the activity, but never prohibit it. Similarly,
they cannot in the guise of promoting the general
welfare, allow an activity that is prohibited under existing
laws. Neither can they pass laws that will amend the
national laws. TN: Cruz v Paras G.R. No. L-42571-72
July 25, 1983
One of the issues raised with PDAF is that it is a
violation of local autonomy because the people did not
have the chance to determine what projects they need
because it is determined by the congress (which
supposedly is none of their business as far as LGUs are
concerned).
Suffice to say with respect to delegation of powers, the
LGUs have the power however limited.
Then there is the exercise of the legislative power by the
people.
Q: Why the need for a delegation when sovereignty
resides in them?
A: Because we need a particular mechanism or
procedure on how the people can do that. Sec. 32 of Art
VI mandates that Congress should pass a law that would
provide for the procedure, and thus RA 6735 was
passed. Under this law, the people can propose
amendments to the constitution.
TN: Amendments only!
The people can also propose statutes through the
process of initiative and referendum. Likewise, the local
people can propose local legislative acts or resolutions,
or ordinances through the process of initiative and
referendum.
TN the difference between initiative and referendum: In
initiative, people directly propose, go through the
process. Whereas in referendum, it will be for the
30
legislative body, may it be national or local, to propose;
and the people to approve or reject them in a
referendum.
That principle was raised as an issue in the PDAF
controversy: that there may be a violation of the
delegation of the power to congress in so far as
identifying the projects to which to spend the public
funds for because the manner of spending as regards to
how much is to be expended, it is the presidents power
for as long as it is included in the General Appropriations
Act (GAA). Apparently, in the GAA what is only
mentioned are those funds for projects for country
development, but as to the identification of specific
projects, they are not stated in the GAA. That
supposedly, it is within the power of the president to
identify and implement, and not for congress. By giving
that power to congress in effect, there is a violation of
the non-delegation of powers. In this particular case,
executive power.
According to SC in the case of Philconsa v Enriquez,
what has been done by the congress is only to
recommend (but in reality they are actually the ones who
determine the projects). So this was questioned again in
2012 in the Lamp case (Lamp v Secretary of Budget
and Management), but the SC said, case dismissed,
there is no evidence to show that the power is violated.
Until finally the Belgica case (Belgica v Ochoa) wherein
the SC said that indeed there was a violation because in
reality it is the congressmen who determine the projects
and determine the beneficiaries (in fact they use to get
20% until finally it becomes 100% because the
beneficiary does not exist at all).
When you take the bar this will still be a hot issue, so
compare the cases I mentioned: Guingona v. Carague
G.R. No. 94571 April 22, 1991 , Philconsa, LAMP,
Belgica so you would have a better understanding of the
issues. Not only was there a discussion on the
separation and non- delegation of powers, there was
also a discussion on judicial review, i.e., the elements of
judicial review on the procedural aspect (especially in
the Belgica case regarding the concept of
transcendental importance)]
Those are the important principles you should remember
for bar examination purposes with respect to
republicanism.
G. Forms of government
Let us now go to the purpose of a government. One of
the elements of a state is the existence of a government.
There are important forms of government which are
important for purposes of the Bar examination.
According to the number of rulers
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law) 31

a) Monarchy a disqualification?
b) Aristocracy
c) Democracy A: That is an issue that has to be resolved by
the Supreme Court because instead of deciding
The most important form is democracy because the case on the merit, the SC dismissed the
we have Section 1 of Article of the 1987 case because Estrada was never elected; the
Constitution which states that, the Philippines is issue has become moot and academic. The SC
a Democratic and Republican State. held that there was no actual case or
controversy. The fact remains that the term of
According to how the powers are distributed: office of the President is six (6) years without re-
a) Presidential System the powers are election.
separated from each other because the TN also of the main differences of a Parliamentary
three branches of the government are System and a Presidential System of Government. The
coequal and independent from each other, two features that dominate the differences between
although they coordinate with each other. Parliamentary and Presidential Systems are the
b) Parliamentary System is that form of following:
government where there is fusion of powers
Parliamentary Presidential
of the executive and legislative.
There is fusion of the There is fusion of the
The thing that you should TN is, between the Executive and Executive and
two, the most adversarial form of government is Legislative Departments Legislative Departments
the Presidential System because of the principle where there is the where there is the
of checks and balances. Here, the three supremacy of the supremacy of the
branches of the government do not trust each Legislature; the Legislature
other. Hence, there is the checking of each Legislature is the
others powers to make sure that they are parliament and there is
balanced in order to maintain the equality always the supremacy of
among the three branches. the parliament in the
government; the Members
Another feature that you must also remember is of the Cabinet come from
that in the presidential system of government, the parliament thus the
there is the enjoyment of fixed term of office of fusion of powers between
the President. The term of office of the president the Executive and the
is six (6) years without re-election. Whether or Legislative departments so
there is no confusion as to
not the term should be fully served in order to be
who is more superior to the
disqualified for another re-election, is an issue
other because it is
that has to be resolved by the Supreme Court. understood that there is
You should remember the case of Pormento the supremacy of the
vs. Estrada et. Al, G.R. No. 191988 August parliament.
31, 2010 where there was a question of the The Prime Minster has The president enjoyed a
qualifications of Estrada when he ran for the no fixed term of office. fixed term of office of 6
second time for the presidency. The argument He is chosen by the years
there of Estradas Lawyer was that the term of members of the
office is six years but the Constitution is silent on parliament. He stays in
the issue on whether resignation may be power for as long as he
considered as an interruption. holds the trust and
confidence of the members
Q: In the Constitution, resignation or voluntary of the parliament. Where
renunciation is not considered an interruption of there is major conflict of
the term of office for purposes of determining the issues between the two
consecutiveness or successiveness of the term. departments, either the
In the case of the President, there is no President or the Prime
Minister will dissolve the
successiveness of term to speak of because the
Parliament, OR the
term is only one. But the trouble is, Estrada was
Parliament will remove the
not able to finish the full term because allegedly Prime Minister through a
he resigned. Should that then be considered as vote of no confidence.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law) 32

the legitimate government. So you have an

incumbent government and then you have another
In a modified parliamentary As to his re-election, the force that overthrows the incumbent government.
system where Mr. Marcos Constitution was silent So there are two governments at the same time.
was the president, and you which means that he could
had a prime minister who run as many re-elections That was precisely the question on that government
was nominated by Mr. for as long as he lives of Cory Aquino the Revolutionary Government.
Marcos, elected Consuelo The Marcos government was what the Cory Aquino
de bobo by the members government was maintaining against so that
of the Interim Batasang considered the Aquino government as de facto.
Pambansa (IBP), and. As
to the Prime Minister he If the basis was the 1973 Constitution, then the
stayed in power for as long Marcos government was the De Jure Government. If
as he held the trust and the Marcos government was successful the Aquino
confidence ultimately of government had possession and control then. The
the President not of the thing is that, there was already no more Marcos
IBP government. What was left was only the Aquino
government.
As to whether a government is De jure or De facto While we were saying that there cannot be a
distinction if there is only one government left, can
The distinction between de jure and de facto is
we consider the Aquino government as de facto?
only relevant when there are two governments
at the same time. If there is only one The Supreme Court explained that, it may have
government there is no need to make a been initially considered as de facto because it was
distinction. not based on the 1935 or 1973 Constitution. There
a) De jure was no Constitution. It was established by direct
action of the people through a revolution. In fact, the
A De jure government is the legitimate Freedom Constitution was only formulated some
government. It usually has the general time on March 14, 1986 and was established on
support and consent of the people. How this February 28, 1987. Between those periods, you can
is manifested is by the ratification of a consider the Aquino government as de facto. It
Constitution and elections of government eventually became a De Jure government when the
officials. 1987 Constitution was already promulgated as basis
of the Aquino government and later recognized by
the Family of Nations; and eventually there was a
b) De Facto ratification of the 1987 Constitution and the election
of government officials. It was only then that it
A De Facto Government is one that is became clear that it was established by the consent
established against the will of the people. of the people who ratified the Constitution and
Usually, it does not have the general support elected the government officials.
of the people.
2. The third is that established as an independent
As regards to a de facto government, take government by the inhabitants of a country who rise
note that there are three kinds. Read the in insurrection against the parent state of such as
case of Co Kim Cham vs Tan Keh G.R. No. the government of the Southern Confederacy in
L-5 September 17, 1945 revolt not concerned in the present case with the
first kind, but only with the second and third kinds
1. The first, or government de facto in a proper of de facto governments.
legal sense, is that government that gets possession
and control of, or usurps, by force or by the voice of Another kind of de facto government is a
the majority, the rightful legal governments and government established by the inhabitants of a
maintains itself against the will of the latter, such as country who rise in insurrection against the mother
the government of England under the country.
Commonwealth, first by Parliament and later by
Cromwell as Protector. Example

When the control of the government is usurped by The government of Aguinaldo; June 12 was the
the voice of the majority, and this government declaration of independence not from the Americans
maintains itself against that rightful authority which is but from the Spaniards in Kawit, Cavite that led to
the establishment of the first Philippine Republic
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
otherwise known as the Malolos Republic. It was
never recognized by the Family of Nations because
it only lasted for a month. When it was introduced it
died in its natural death.
There was no government to speak of at least as a
de facto government against the de jure government
of the Spaniards.
3. The second is that which is established and
maintained by military forces who invade and
occupy a territory of the enemy in the course of war,
and which is denominated a government of
paramount force
Another kind of de facto government is that which is
established by the foreign military troops in a
defeated territory. This is called as Government of
Paramount Force or Belligerent Occupancy. This
was the kind of de facto government that we had
during the Japanese Occupation under the
leadership of the Red, the de jure government being
the Common Wealth Government which was
established by Filipinos under the Second Philippine
Republic under the leadership of Laurel can only be
described as a de facto government.
Consequences of the Change in Government
Q: TN What are the consequences or effects of having
this kind of government while the Commonwealth was
still considered as the de jure government?
A: Under a de facto government or belligerent
occupancy, the political laws of the de jure government
are merely SUSPENDED. They are not automatically
abrogated. The municipal laws still apply unless they are
repealed by the belligerent occupant.
Q: What were the effects of liberation on the de jure
government? What were the effects when the Japanese
left the country? The Doctrine of Postliminum
A: Political laws passed by the belligerent occupant or
de facto government were automatically considered as
repealed or nullified or abrogated.
Non- political laws that were passed by the
belligerent occupant are still considered as good and
valid.
Decisions or policies of the government which are
tainted with political complexion are automatically
abrogated.
Indac vs Director of Prisons G.R. No. L-1133
November 29, 1946,
[Judge was actually talking about Justice Perfectos
dissent in this case by saying that the judgment of
conviction was void because it was tainted with political
33
complexion, but the majority in this case decided to deny
the release of Indac in his petition for habeas corpus]
J. Perefectos dissent:
Santiago Indac was sentenced for theft to an aggregate
maximum penalty of 24 years, 11 months and 11 days,
which he began serving on March 28, 1944, in criminal
cases Nos. 2332 and 2333 of the Court of First Instance
of Manila.
His wife now seeks his release by habeas corpus.
There is no question that the decisions in the two cases
were rendered by a court under the Japanese regime in
1944 which, according to our opinion in Co Kim Cham
vs. Valdez Tan Keh (L-5, 41 Off. Gaz., 779), formed part
of the processes declared null and void in one of the
proclamations of General Douglas MacArthur.
There is also no question that the scrap iron, electrical
supplies, cables, and fixtures stolen by the prisoner from
the Japanese imperial army formed part of its vital
supplies; and petitioner contends that the stealing of the
them was a form of sabotage, directed against the
enemy, for the purpose of weakening him.
No copy of the decisions could be presented to us, and
there is no way of ascertaining the circumstances under
which the prisoner committed the thefts. Considering the
fact that the Japanese army's ownership of the stolen
goods is, at least, doubtful, upon facts of general
knowledge and of which the members of this court had
ample opportunity to learn the Japanese not having
brought, during their invasion and occupation, any scrap
iron, but collected it from all parts of the country by illegal
means, to be sent to Japan to bolster up their dwindling
materials of war and the electrical supplies, cables,
and fixtures which were stolen by the prisoner were most
probably commandeered from our people; xxx Under
such circumstances, although we understand the fact
that the prisoner has been convicted and sentenced to
the heavy penalty of from 11 years to 24 years of
imprisonment an unprecedented cruelty as penalty for
simple theft the prisoner explaining that the Japanese
military authorities had instructed all courts to impose
heavy penalty on crimes having the nature of political
offenses, we are of opinion that, after liberation, the
prisoner is entitled to be immediately released as, from
the point of view of our people he did not commit any
punishable act.
Penal laws are not political laws. It has nothing to do
with the relationship of the government and the
governed. The judgment is supposed to be valid. But
what complicated the situation was, apparently the
conviction was tainted with political reasons because
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
one was charged with robbery. The reason of the
robbery was to undermine the operation of the Japanese
military authorities. He was stealing cables of the
Japanese in order to undermine their operation. The
judgment was tainted with political complexion, in which
case it should be abrogated. The Judgment was
invalidated. Otherwise, in the absence of any political
complexion, penal laws are non-political and they should
be respected as good and valid notwithstanding the
liberation of the people from the de facto government.
||| (Estrada v. Desierto, G.R. Nos. 146710-15, 146738,
March 02, 2001)
Q: Was the Arroyo government a de jure government?
A: It was resolved by the Supreme Court that the Arroyo
government was a de jure government as it was done or
it happened by way of succession when Pres. Estrada
was considered resigned.
Q: What is the Difference between Federal and Unitary
System of Government? (BAR)
A: In Unitary government the powers are concentrated
in the national government; the local government is
dependent upon the national government.
In Federal, the executive, legislative, and judicial
powers are distributed equally between national and
local wherein the local government is considered
supreme within their own sphere, independent of the
National government.
A good example is the government of U.S. The
federal government as national government and the
different states with their respective local governments
considered as the local counterparts. These different
states are independent from the federal government.
They can make their own laws for as long as it is not
contrary to the US constitution. Different states have
different laws. The common denominator is the laws
should not be contrary to the US Constitution. (TN) Laws
against the federal government or federal laws are
alright, but not against the Constitution.
We are trying to establish a federal system by having
this concept of Bangsamoro political entity. How we talk
about it without violating the constitution, we will wait and
see if there are any objections to that. Basically you are
practically establishing a substate that is prohibited by
the constitution.
Province of North Cotabato vs. GRP GR No. 183591
October 14, 2008 enumerates the objections in the
constitutionality of Bangsamoro Juridical Entity. More or
less this Bangsamoro (political entity) is patterned from
34
the Bangsamoro Juridical Entity. The difference is in the
Bangsmoro Juridical Entity, there is no ratification from
the people who might be affected by it. Unlike in the
Bangsamoro Political Entity there is a framework
agreement signed by the president to be submitted to
Congress. Congress would then pass a law adapting it.
Before adapting it, they will discuss it and they will
always consider if the contents is within the framework of
the provisions of the constitution. Assuming that it will be
passed into law, according to the framers of this
agreement, it is more democratic because it will still be
submitted to the people for ratification. According also to
that framework, there will be an election of government
officials, they will not be appointed. There will be election
of members of legislature who will elect the head of the
Bangsamoro Entity. Its like a parliamentary system of
government. They will be independent in the making of
their own laws. Laws would be different from the national
government.
To make it more acceptable, they are saying that the
name is just changed but it will be the same as an
autonomous region, just a mere replacement to ARMM.
It is however different to ARMM as regard to the concept
and operation.
Q: What is the difference between Martial Law, Military
Government and Revolutionary Government?
A: When a government is under Martial Law, it is still
civilian. The head of State will only be assisted by the
Armed Forces. It doesnt make it a military government.
There will be more or some regulations on civil rights but
there is still the bill of rights.
Military government - the president is the head of a
military group rather than one who is ordinarily the
president of a civilian government. Executive and
legislative powers are removed from a civilian authority
and transferred to the head of the military government.
The government is more controlled by the military. It is
usually established after a war between two countries or
states, not just a coup dtat within. It technically
involves two countries fighting against each other,
thereafter the military government is established in the
invaded/defeated territory. An example would be the
kind of government we had at the beginning of the
American Occupation. The government then was under
the President of the U.S. Pres McKinley, the commander
in chief until there was a transfer of power to the civilian
this time by the US Congress, when the land laws were
enacted. In laymans understanding, a government ran
by the military.
Revolutionary government - a government that is not
based on any constitution. The establishment of the
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
government is based on the direct action of the people
who directly seize the power from the incumbent
government and establish a government of its own.
In these kinds of government (military, martial law,
revolutionary) the leader is very powerful because both
executive and legislative powers are exercised by the
leader of the group, usually a member of the military.
Even judicial function may be exercised by the leader of
the group.
During martial law, President Marcos exercised both
legislative and executive power, even judicial powers.
Cases against civilians who were charged of violations
against national security were not tried before the civilian
courts. They were tried before court martials, whose
decisions are appealable to the commander in chief of
the armed forces.
In the Constitution of 1973 and 1987, notwithstanding
the definition of martial law, there is always at all times
the supremacy of the civilian authority. The 1987
Constitution provides safeguards to make sure that we
will not have the same experiences we had under the
Marcos administration during Martial Law.
The government of Cory was a Revolutionary
Government. All executive and legislative powers were
exercised by Cory Aquino. Why? Because the 1973
Constitution that justified the existence of the Batasang
Pambansa was not recognized by the government of
Cory. In other words, there was no legislature. In its
absence it was for Cory Aquino to exercise legislative
powers that allowed her to promulgate her own
Constitution by issuing Proclamation No. 3 The
Freedom Constitution. Until there was the enactment of
Proclamation No. 9 creating the constitutional
commission to draft the 1987 Constitution, which created
a legislature. The first thing that had happened was in
1987 when we had election for the members of
Congress that became the legislature. Finally the
concept of Revolutionary government was diminished by
having the complete branches of government under the
1987 Constitution.
III. Legislative Department
A. Who may exercise legislative power
Q: What is Legislative Power?
A: It is the power to propose, enact, amend or repeal
laws.
Different Kinds of Legislative Power:
1. Orginal v. Derivative
Original power is the power vested directly in the people,
who is the source of Sovereignty. What is exercised by
the legislature is merely a Derivative power.
35
2. Constituent v. Ordinary
Constituent function is the power of Congress propose
amendments to the Constitution acting as a constituent
assembly, it is not a law-making power. On the other
hand, Ordinary function is the power of Congress to
make laws and changes in the law.
Other Functions of Congress that are not law-making
power
1. Electoral Function
There are also other non-legislative functions vested in
Congress like electoral function, whereby Congress
canvasses electoral returns for the Vice President and
Presidential positions. Ordinarily this function is given to
the COMELEC however, by the express provision of the
Constitution, it is vested in Congress.
2. Concurrence of Appointments made by the
President
It is for Congress to concur appointments made by the
Presidents to certain positions in the Government such
as, heads of the executive branch, officers of the AFP,
Constitutional Commission appointees (COA,
COMELEC, and CSC), and regular members of the JBC.
3. Concurrence of Treaties made by the President
4. Impeachment - Described somehow as quasi-
judicial function on the part of Congress.
Others
1. Congress
Q: Where is Legislative Power Vested?
A: The legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a
House of Representatives, except to the extent reserved
to the people by the provision on initiative and
referendum. (Art. VI, Section 1)
2. Regional/Local legislative power
3. Peoples initiative on statutes
The Reservation in the People to make Laws
The Congress shall, as early as possible, provide for a
system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and
enact laws or approve or reject any act or law or part
thereof passed by the Congress or local legislative body
xxx (Art. VI, Section 32)
So, since there is a constitutional mandate to provide a
system of initiative and referendum, Congress has
enacted RA 6735.
a) Initiative and referendum
4. The President under a martial law rule or in a
revolutionary government
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
B. Houses of Congress
TN: We have a Bicameral Congress.
Qualifications
Q: Are you qualified?
A: Yes. Definitely. Even if you did not finish law? Yes.
Because all that is required is able to read and write. As
long as you know how to sign your name, you are
qualified. One has to be a natural born. For senator 35
yrs, house of Representatives at least 25.
TN: on the day of election, not on the assumption of
office. Not even at the time you filed your certificate of
candidacy. You may qualify on the day of election. Now
you must also be a registered voter, a resident of the
Philippines if you are running for the Senate 2 years and
1 year for the house of representatives except for the
party list sectoral representation, the residency Is not
required.
Special Elections
TN: on special elections. In case a vacancy occurs in
either house before expiration of the term of office,
should there a special election, is it mandatory?
A:The answer is no. Special election is discretionary.
And if special election must be called by congress or the
house concerned, vacancy must be occurring not less
than 18 months. Meaning if vacancy occurs within 18
months, there is no more election. You just have to wait
for the regular election. If vacancy occurs in the house of
Representatives within one year, again you just have to
wait for the regular election. No more special election.TN
1. Senate
Q: How are the members of Senate chosen?
A: Under Art. VI, sec. 2, Senators shall be elected at
large.
Q: Is there a possibility that Senators may be chosen
differently as we use to elect them?
A: Yes, they can be chosen in a different manner
determined by law, as clearly gleaned from the phrase
as may be provided by law (Art. VI, sec. 2). This is
illustrated by the prevailing Philippine method of
choosing twelve (12) senators every three years.
A different manner choosing may involve as much as
changing the election of senators from national votes
into votes per region instead. This can be done by
passing a law.
For Senators:
The Senate shall be composed of twenty-four Senators
who shall be elected at large by the qualified voters of
36
the Philippines, as may be provided by law. (Art. VI,
Section 2)
TN: The composition of Senators cannot be altered by
an ordinary law (except if the constitution would be
amended for that matter) as it is fixed by the
Constitution, while that of the House of Representatives
can be increased as expressly provided by the phrase
unless otherwise fixed by law.
2. House of Representatives
For the House of Representatives:
The House of Representatives shall be composed of not
more than two hundred and fifty members, unless
otherwise fixed by law. (Art. VI, Section 5)
a) District representatives and questions of
apportionment
Composition of the Lower House
Insofar as the lower house is concerned, it is composed
of both representatives from the districts and party-list
representatives. There is some issue with regard to
district representatives as it would relate to the
apportionment of districts and its voters.
In making legislative districts it is required that territories
contiguous, compact and adjacent, as far as practicable,
to another to prevent gerrymandering. Gerrymandering
means lumping of voters, who may be from separate
areas or districts, into one district or place in order to get
a favorable concentration of votes to a particular party.
On another point, TN of the number of registered voters
per district to be considered as such because the
Constitution is silent on this matter. TN of jurisprudential
principles pertaining to this issue. The Contstitution is
silent on the minimum number of voters to be declared
as a legislative district because one province is entitled
to one district regardless of the population. In other
words, so long as it is a province, it is entitled to at least
one legislative district representative.
For a City, the rule is different.
Aquino III v. COMELEC, G.R. No. 189793, April 07,
2010
There is no specific provision in the Constitution that
fixes a 250,000 minimum population that must compose
a legislative district.
The provision draws a plain and clear distinction
between the entitlement of a city to a district on one
hand, and the entitlement of a province to a district on
the other. For while a province is entitled to at least a
representative, with nothing mentioned about population,
a city must first meet a population minimum of 250,000
in order to be similarly entitled.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Aldaba, et. al. vs. COMELEC G.R. No. 188078, 15
March 2010.|||
This has reference to the creation of City of Malolos as a
highly urbanized City in order to be considered a
legislative district
It was not established that City of Malolos has actual or
projected population of not less than 250,000 population
before May 2010 elections.
SC: Clearly, there is no official record that the population
of the City of Malolos will be at least 250,000, actual or
projected, prior to the 10 May 2010 elections, the
immediately following election after the supposed
attainment of such population. Thus, the City of Malolos
is not qualified to have a legislative district of its own
under Section 5(3), Article VI of the 1987 Constitution
and Section 3 of the Ordinance appended to the 1987
Constitution.
Q: Who can apportion a district?
A: It is the Congress.
Montejo v. COMELEC, G.R. No. 118702, March 16,
1995
This was in relation to the creation of Biliran as a
province separate from Leyte. It was the COMELEC
that apportioned these municipalities but was declared
by the Supreme Court as unconstitutional.
The SC emphasized that insofar as the apportionment of
legislative districts, such is a legislative function. Not at
all a function of the COMELEC.
Q: What about the Regional assembly of ARMM, can
they create cities, provinces or legislative districts?
A: No.
SEMA vs. COMELEC GR No. 134163 December 13,
2000
SC said that Congress cannot validly delegate to the
ARMM Regional Assembly the power to create
legislative districts. The power to increase the allowable
membership in the House of Representatives and to
reapportion legislative districts is still vested
EXCLUSIVELY to Congress.
Q: How often can apportionment of legislative districts
be done?
A: It can be done every after three (3) years from the
survey.
b) Party-list system
Party-list System
Q: What is the percentage in the composition in the
House of Representatives?
A: Not more than 20% of the House of Representatives.
37
Depending on the number of members coming from the
different districts you will have as many as 20% of them
coming from the party list system.
TN: The following cases in determining qualification in
order to get a seat from the party list:
Veterans Federation Party v. COMELEC||| G.R. No.
136781, October 6, 2000|||
Barangay Association for National Advancement and
Transparency v. COMELEC||| G.R. No. 179271, April 21,
2009|||
Recently: The case on Atong Paglaum vs. Comelec GR
No. 203766 (April 02, 2013)
Q: Veterans Case: it was emphasized there that to
qualify for a seat, the party list must garner how many
votes?
A: 2% of the total votes cast for the party list.
Our perception was, that even with additional seats, you
must also get at least 2%, that was the perception. But
the Supreme Court said in the BANAT case that it will
defeat the purpose of filling up the 20% allocation. Thus
it was clarified under the BANAT case that while 2% is
required for a guaranteed seat, you may get less than
2% for as long as in the ranking in the determination of
the 20% allocation, you would still be included. Even if
you get just 1% of the total votes cast for the party list.
Just as long as you first fill up the seats from the party
list members who garnered the 2%. Additional seats will
be proportionate to the seats available for the party list.
But shall in no case shall 1 party list organization get
more than 3 seats, that is the threshold.
Important numbers that you should therefore
remember for the Bar exam:
Total membership coming from party list 20%
To get a guaranteed seat 2% (of the total votes cast)
Maximum seats that one party list can get Only 3 seats
Q: Do you need to represent a sector if you are coming
from a party list in order to be accredited as such?
A: Clarified in the Atong Paglaum Case. The SC has
reminded organizations participating in the party list,
there are 3 kinds:
(1) National Parties or Organizations,
(2) Regional Parties or Organizations,
(3) Sectoral Parties or Organizations.
Insofar as the National and Regional Parties or
Organizations, they do not need to organize along
sectoral lines and do not need to represent any
marginalized and under-represented sector. So they
need not represent certain sectors like labor, fisherfolks,
urban poor, indigenous cultural communities. For as long
as they are organizations, national or regional, they can
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
be accredited to join the party list system without
needing to represent any sector of the marginalized or
under-represented.
But focused on the requirement of representation
coming from the marginalized or under-represented
groups are the Sectoral parties or organizations.
They MUST represent these sectors (this is mandatory),
sectors like labor, peasants, fisherfolks, urban poor,
indigenous cultural communities, handicaps, veterans
and overseas workers.
The Sectoral parties or organization must may either be
(1) marginalized or
(2) under-represented OR (this is now what is clarified
by the SC)
(3) lacking in well-defined political constituency
Q: What does lacking in well-defined political
constituency mean?
A: In the case of peasants, klaro man na imong
members kay farmers. In the case of labor, klaro pud na
workers. But there are too many kinds of professions, so
there arises these professions lacking in well-defined
political constituency, way klaro kung kinsay ilang
miyembro. Or you have for example the elderly, the
womens sector or the youth. All that is required of them
is to have an advocacy pertaining to their special
interests or concerns.
The members of which may not necessarily be a specific
group, for as long as they advocate for the interests of
their sector, they qualify already for accreditation. That is
new in this particular case, its a new thing now. It is
clearer in other words, in the determination of who can
be accredited in the party list. The membership coming
from the party list has become broader as compared to
before, because our understanding then of the
representation coming from the party list is that it must
represent a marginalized or under-represented sector of
society, that is only so far as Sectoral Parties or
Organizations. But for those lacking in well-defined
political constituency, it is enough that there is advocacy.
Another point that was clarified in Atong Paglaum is on
the participation on major political parties. The SC was
rather unclear on whether they should be allowed to
participate in the party list system, their decisions were
flip-flopping. At one time, the SC said no. But in BANAT
they said yes.
Now in the recent decision in Atong Paglaum the SC
ruled that major political parties can participate in the
party list system. However, there is a condition to that:
That they must not participate in the legislative district
representation. So, Supreme Court said then in this
particular case that insofar as political parties, they can
participate in party list elections provided (1) they
register under the party list system, and (2) they do not
field candidates for the district elections. A political party
whether major or not that fields legislative candidates in
38
an election can participate in the party list system only
through its sectoral wing. The sectoral wing is by itself
an independent sectoral party and is linked to a political
party through a coalition.
Another point to TN, this is with reference to
disqualification of a nominee representing the party list.
That does not disqualify the party list organization itself
so long as there are other nominees available to replace
him. That is precisely the reason for the requirement of
submission of 3 names for the nominees. In case one is
disqualified, there are still others that may still represent
the party list organization. The disqualification of the
nominee does not automatically disqualify the party list
from accreditation.
Summary of Parameters in Atong Paglaum case:
In determining who may participate in the coming 13
May 2013 and subsequent party-list elections,
theCOMELEC shall adhere to the following parameters:
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.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
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. THESAD
||| (Atong Paglaum, Inc. v. COMELEC, G.R. No. 203766,
April 02, 2013)
TN: On the party list, read the case of Ang Ladlad LGBT
Party v. Commission on Elections, G.R. No. 190582,
April 8, 2010,|||That is sectoral representation,
representing the marginalized and under-represented
sector of society. In the Ladlad case the SC has
explained the qualifications to represent a marginalized
group. The SC said in this case that the LGBT qualifies
to be accredited under the marginalized group because
it has qualified with the following qualifications:
(1) there must be possible division or discrimination
suffered by the group, and certainly they are
discriminated.
(2) a distinguished characteristic, attribute or experience
that defines them as a discreet group. Definitely there is
a distinguishing characteristic.
(3) there is present political or economic powerlessness.
According to the SC, ang Ladlad has shown that the
LGBT sector has been historically disadvantaged or
discriminated against because of negative public
perception. And there have been alleged acts of violence
perpetrated against the members of the LGBT
community by reason of their sexual orientation and
gender identity. It added that the massive opposition to
the participation of the LGBT in the party list system is
by itself demonstrative of the lack of political power, so
too is the fact that legislation to prohibit the
discriminatory treatment against them is languishing in
the Congress.
39
TN of RA 7941 as to what may be accredited. The more
important part there is those disqualifications for
accreditation.
Q: What are the organizations that cannot be accredited
for the party list system? (BAR)
(1) Religious group that represents the church. If layman
lang but does not represent the church, it is allowed. Ex:
Ang BUHAY, its linked to El Shaddai.
(2) Supported by a foreign government or organization
(3) Supported or subsidized by the Government
(4) Groups promoting violence or the purpose of which is
to overthrow the present Government.
TN, in the BANAT case the SC said that major political
parties can participate under the party list provided that
they have to run under the sectoral organization, that
was the qualification. Now, you should not also field a
candidate in the legislative district.
TN, the matter of advertising or disclosing the name of
nominees coming from the party list. Always remember
that in the party list system, you do not elect the
nominees unlike in the legislative election where you
elect the candidate representing the political party, not
the political party itself. In the party list, you elect the
organization.
Not the political party itself. In the party list, you elect
your competition. May it be national, regional, or,
sectorial. Thus the prohibition against disclosure on the
names of the nominees in the certified list that must be
posted at the polling place.
What you see on the certified list are only the names of
the organizations. Now, at one time in the case of Bara
Lidasan v. COMELEC, G.R. No. L-28089, October 25,
1967, they asked for the names of the nominees of this
different organizations accredited by the Comelec
because they suspected that most of them are relatives
of President Arroyo, if not friends, and Comelec said that
is confidential, that cannot be disclosed. Supreme Court
said however, the Comelec abused its discretion
because that is of public record and there is no
prohibition against disclosure for as long as it is not
disclosed in the certified list. You have seen this in the
polling place.
We used to have alphabetical names of organizations.
Youll notice that most of the organizations start with a
letter A. what was the election 2016? Not anymore
alphabetical but random. The sequence instead of
alphabetical, there will be a raffle instead. They will listed
in the certified list but not anymore alphabetical so they
will have equal chance.. Short memory raman ta. Kung
unsay unang nalista, they will also be the only thing that
you will write in your ballot. Dili man ni check-check, you
have to write the name of the organization that you are
trying to vote. Hasol kaau so. Ang makita ninyo sa
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
folder na nag-una, usually will get your vote. Now it is
being written in a certified list, randomly.
C. Legislative privileges, inhibitions and
disqualifications
Term of Office
President and Senate is 6 years. In the house of
Representatives, 3 years. But not more than 3
successive terms. Common denominator that YOU
SHOULD REMEMBER IN THE BAR, that voluntary
renunciation or resignation shall not in any way interrupt
in the continuity of the service. It will be considered as
one full term. In the computation of the successiveness
of term.
This is what is lacking in the case of the President
because there is no restriction in so far as the President
completing his term of six years. Is he still qualified to
run for President. Mao ni gipanindigan ni Erap Estrada.
He was just saying yesterday that he is going to run as
President again if Binay will be anointed by President
Aquino as Presidential candidate. That will be his third
running for election as President. The second time, he
almost won the election. However the case of Pormento
vs Estrada et al (id) was dismissed by the supreme
court for the issue has been found to be moot and
academic as he was not elected. That issue has never
been settled. And as long as the issue is not settled he
would run again in election. Because the provision
regarding the resignation as not an interruption in the
continuity applies to only to the members of the Senate
and even for local elective officials. They have not
anticipated that of the term of office of the President.
That is still debatable.
Salary of members of congress is only 204k per annum,
for officers such as the President of the Senate or the
Speaker of the House, that is only 240k per annum. How
do they became billionaires? Some. I think not everyone
because some of them are already billionaires when
they entered the congress.
Q:Can their salary be increased?
A: Yes. So long as they do not enjoy it. It will be enjoyed
by the members of the next term. Which means, for
example, dba ang Senate 6 yrs, hor 3 yrs.
Q:You finished already the term as member of the house
of Representatives, can you now enjoy the increase if u
run the next election?
A:Answer is no. Because at the time the salary was
increased, the term of office of the senators has not yet
been completed. It has to be upon the expiration of the
40
full term of all the members of the house to effect the
proposed the increase of the salary.
Q:Can it be decreased by law?
A:Oh, definitely. There is no prohibition against it.But
they are not stupid to passing law against themselves.
So that is impossible.
Now there are some of the perks enjoyed by the
members of the congress. The privileges that they enjoy.
TN this may be relevant especially the impending arrest
of the 2 other senators.
Q: Now what are the perks?
A: You have 2 Privileges: Immunity from arrest and
detention and the freedom of speech.
Immunity from arrest and detention
For as long as the penalty is only 6yrs or lower, one
cannot be arrested during tenure. For as long as he is a
member of congress, he cannot be arrested to make
sure that he will attend the session. Even if he is not
attending the session and just sleeping in his mansion,
he cannot be arrested if the crime he is charged with is
not punishable by more than 6yrs of imprisonment.
Definitely plunder is punishable by death as maximum.
With the suspension of death penalty, Reclusion
Perpetua, that means more than 6yrs of imprisonment.
Therefore he can be arrested anytime even if you are
attending session in Congress. Trillanes IV v. Pimentel,
Sr., G.R. No. 179817, June 27, 2008 and Pp. vs
Jalosjos G.R. Nos. 132875-76. November 16, 2001
TN: The case of Jalosjos. He was convicted already of
rape and the judgment has already become final. Prior
thereto he was reelected as congressman. And so he
said in effect he was exculpated or exonerated following
the Aguinaldo case in the administrative cases. Supreme
Court was saying this is different. Your election does not
erase your criminal liability. So even if you are reelected,
still the fact remains that you are convicted and the
judgment has already become final and executory. Now
as for the penalty is more than 6 years of imprisonment,
that he will be allowed to attend sessions with escorts
from bilibid, the supreme court denied it saying that
before the eyes of the law he is not special because he
is a member of the congress apart from an ordinary
criminal. The supreme court did not allow him to attend
sessions and in fact he was expelled because the
decision became final and that disqualified him from
holding any public office. In the case however of
Trillanes, it was different.
You TN, this is significant if the three senators or sila
tanan makasohan ug Plunder, wala na mabilin sa
senado. What will happen to the operation of the
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Senate? Because they can be arrested and detained of
the penalties more than 6yrs.
TN of the hypothetical question that might be asked on
the bar. What if for example Enrile and Estrada will be
arrested, the same with Revilla, they can be arrested
and detained any day as the matter immunity does not
apply. Now, the argument of Trillanes in his case is, you
are not convicted as of yet because of the presumption
of innocence. He wanted to attend session and was
approved because according to him when he was
charged with an offense that is punishable by reclusion
Perpetua.. more than 6yrs imprisonment but he was not
yet convicted. He said, do not compare me to Jalosjos.
Jalosjos was convicted, I am only a detention prisoner.
The case is still pending. I have in my favor presumption
of innocence. Supreme court say however in the case of
Trillanes, presumption of innocence does not necessarily
carry with it the enjoyment of civil and political rights. Still
the case of Jalosjos applies to him. He was not allowed
because he was facing charges that was punishable by
more than 6 yearrs imprisonment.
Q: By his detention, is he deprived of his duty to function
as member of the congress?
A: Answer is no. He can continue to perform his
functions as a member of congress. Because he is not
yet convicted. The judgment is not yet final. They can
continue to do their job from camp Crame. They should
not be deprived to represent the constituents because
the people, because we have elected them nationwide.
You should not forget that they are not yet convicted but
only detention prisoner. But because of media, we
thought that they are already guilty. There is still the
hearing and the presumption of innocence. So even if
they are convicted by the trial court, for as long as
judgment has not become final and executory, they
continue to hold public office unless suspended
indefinitely or if expelled from the roster of Senate
members or of the House of Representatives.
As to Trillanes, he cannot attend, but he can still
continue to do his function. And he did. In fact there was
an issue against him because insofar as his PDAF. He
had expended his PDAF and how is that possible when
he was detained. Because he continue to perform his
legislative function according to him.
Trillanes was never denied to continue his functions. So
why make an exception with these three others that are
charged with plunder. Unless of course if they are
suspended. I doubt it. Then they run as president. Free
promotion. (Story of Revilla and Jinggoy)
TN, Its security from arrest and detention has always
been considered only as a privilege and must be granted
in the restrictive sense (it is more of an exception rather
than a general rule)
41
You cannot detain a congressman going to Manila to
attend session. You can be penalized under the RPC.
Freedom of speech.
You can say anything you want to say under the sun. No
civil or criminal liability. For as long as it is said in the
halls of congress or anywhere else as long as that
member is performing a legislative function. So
committee meetings is included (outside the hall of
congress). This is applied to their agents, meaning to
their staff and applies even to their reports. This is
because, it is not limited oral statements delivered but
also includes or applies to all matters communicative in
nature is covered in the immunity from prosecution
maybe civil or criminal liability
TN: There is no immunity to administrative liability, if that
would constitute a disorderly behavior. Osmea vs
Pendatun, G.R. No. L-17144, October 28, 1960. Where
the Supreme Court said that the immunity applies only to
civil and criminal. While they cannot be held liable for
damages or be sued for libel or slander, for
communications or speeches may be written or verbal,
delivered in the Halls of Congress or while in the
performance of a legislative function, but not for
administrative liability
It guarantees the legislator complete freedom of
expression without fear of being made responsible in
criminal or civil actions before the courts or any other
forum outside of the Congressional Hall. But is does not
protect him from responsibility before the legislative body
itself whenever his words and conduct are considered by
the latter disorderly or unbecoming a member thereof.
PROHIBITIONS
Disclosure (Sec 12)
These are part of the transparency of the government.
That requires the disclosure of financial and business
interest of the members of congress to avoid any conflict
of interest. So if they are into the business of real estate,
they have to disclose that.
Example: A corporations owned by a congressman,
bidding a contract with government. Unya mo ingon ra
sila na thay have already renounced or waived their
shares of stock in that corporation in favor of our
children. It is the same, they still own the corporation, as
long as you are alive and kicking.
Prohibited and Forbidden Offices (Sec. 13)
You cannot hold any other office or employment in the
Government, or any subdivision, agency, or
instrumentality thereof, including government0owned or
controlled corporations or their subsidiaries, during his
term without forfeiting his seat. Neither shall be
appointed to any office which may have been created or
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
emoluments thereof increased during the term for which
he was elected.
TN: Two kinds of office which he cannot be appointed
to, for as long as he is still a member of the congress:
1. Forbidden appointments
- Even if the senator or congressman resigns, he
is still disqualified for appointment to a particular
office when that member of Congress is
responsible to the
o Creation of the office which he may be
appointed later
o Responsible in the increase of salary or
emoluments of that office
2. Prohibited/ incompatible appointments
- you cannot be appointed to any other positions
in government that are in conflict with your
legislative function
- Ex. you cannot be appointed as cabinet
member without forfeiting your seat during your
TENURE (so if you accept the appointment,
then you need to resign)
.
The prohibition is that he cannot be appointed to an
office which is incompatible to his office, to a possibility
of fusion of powers of legislative and executive. For
example, he cannot be appointed at the same time as
secretary of department under an executive branch. If he
accepts, he automatically forfeits his eat in the congress.
Many members of congress being appointed to the
cabinet of the president, automatically they forfeit. Even
for controlled corporations if appointed, he forfeits his
seat in the congress
Gordon vs Liban GR NO. 175352 July 15, 2009. Gordon
was the chairman of the Red Cross. The question is,
should he forfeit his seat in the congress when he was
appointed or elected as the chairman of the Red Cross.
TN. SC said Richard Gordon did not relinquish his
senatorial post despite his election to and acceptance of
the position of Chairman of Philippine National Red
Cross Board of Governors [Note: This was overturned in
the January 18, 2011 resolution of the MR which ruled
that Red Cross is sui generis status not anymore a
simple private corporation, but the ruling that Gordon
doesnt violate this prohibition of a Senator]
Q: Why?
A: Because PNRC is a private organization merely
performing governmental function and PNRC Chairman
is not a government official or employee. Not being a
government office, PNRC Chairmanship may be held by
any individual including a Senator or House of Congress.
PNRC is autonomous, neutral and independent of the
Philippine government. It is a voluntary organization that
does not have government assets and does not receive
any appropriation from Congress. PNRC is not part of
any of the government branches; PNRC Chairmanship is
42
neither a government office nor an office in a GOCC for
the purposes of the prohibition in the Constitution.
Senator Gordon therefore can validly serve as Chairman
of PNRC without giving up his Senatorial position
Q: What kind of office is this that even if you resign as a
senator or congress, you cannot be appointed to that
office?
A: If that office is created during your term or that the
emoluments of that office where increased during your
term. You cannot be appointed to those offices even if
you resign. This is called the forbidden office.
D. Quorum and voting majorities
Sessions of Congress
TN: Session of congress may be regular or special. BAR
(there is also a sine die session)
th
Regular session should be every 4 Monday of July
and it should continue until 30 days before the opening
of the next regular session excluding Saturdays Sundays
and regular holidays. So there will be recess of 30 days
Special session- is a session called by the president
during the recess of congress
Sine die session- is where they kill the clock. (US vs
Pons G.R. No. L-11530 August 12, 1916.) This is done
if expiring na ila term. So they can continue to act on
administrative matters, no more legislative functions.
They would not consider the clock. So they continue on
administrative matters no longer law making functions.
Usually mo adjourn na sila if the elections is forthcoming,
they will have a sine die session to attend administrative
matters. Examples on matter regarding on canvassing.
Officers in the congress. TN
Q: Who are the officers in congress?
A:
In the Senate:
1. President
2. Majority floor leader
3. Minority floor leader
4. Chairmen of the different committees
In the house of representative:
1. Speaker of the house
2. Deputy Speaker (in the Luzon, Visayas,
Mindanao and representing the women sector)
3. Majority floor leader
4. Minority floor leader
5. Sergeant of arms
6. Chairmen of the different committees
TN
Q: How are they chosen?
A: by majority votes. Regardless of political party
affiliation. In other words, a president of the house may
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
not belong to the majority political party, he may come
from the minority political party. Like Enrile, he came
from the minority party.
CASE of Santiago.
Q:What do you mean by majority?
A: More than 50% of the membership. For as long as
you get the number, regardless of your political party
affiliation, then you can be elected as an officer in the
congress, either be in the Senate or House of
Representatives
Q: What is quorum?
A: refers to majority only of the membership of house. It
maybe a simple mathematical computation but take not
of the case of Avelino v. De la Cruz, G.R. No. 6322,
February 21, 1912. Let us say, there are 24 members, 5
of whom are absent.
Q: What would be the basis of computation for majority?
A: On the total membership of 24.
Q: Why?
A: Because they can always be compelled to attend the
session. If they are alive and congress. for as long as
there are 13 who attended the session, they can
proceed legally with their business. And to pass a
legislative proposal, all there is need is the majority of
the quorum
Principle of shifting majority, because as the number
of members attendance increase, then the increase also
in the requisite majority of the passing of the law.
Q: What if for example, one is really sick and he cannot
attend the session (in the ICU) will he be included in
the computation of the quorum?
A: Yes! For as long as he is under the coercive power of
the congress. Under the jurisdiction of the congress.
But if he is abroad, in the case of Avelino of Cruz. Even
if a warrant of arrest is issued, it cannot be enforced
aboard since it is beyond the territorial jurisdiction of the
congress. Thus, it is useless to include him in the
computation of the quorum. Thus if one of the members
of the senate is abroad, then the basis of computation of
majority is only 23, not 24. Divided by 2 plus 1.
Santiago vs Guingona.
On the rules of proceeding, every congress, they have to
promulgate their own proceedings. But they are not
obliged to follow them if they do not want to. Arroyo v.
De Venecia, G.R. No. 127255, June 26, 1998) SC
cannot compel them to follow the proceedings, under the
separation of powers. SC: they are mere procedures
which may be waived or disregarded by the legislative
party.
E. Discipline of members
43
BAR: if you have immpeachment to remove the
president or vice president? How do you remove the
member of congress before the expiration of his term of
office?
A: you have by expulsion. To discipline members of
congress, each house has a committee. You have a
committee on discipline.
Q: what will be a ground for removal? Or for disciplining?
A: in impeachment there are 6 grounds enumerated
under the constitution. But in congress there is only
disorderly behavior. Defined by the house concerned
through their rules of proceedings. they define what is
disorderly behavior and that is discretionary on the
house.
TN: the penalty to be imposed from reprimand to
expulsion, should suspension be the penalty, the
constitution is clear that it should not be more than 60
days, if you suspend a member for more than 60 days
then it will be expulsion.
Preventive suspension that may be imposed by the
courts will not violate the separation of powers because
preventive suspension of members of congress by the
courts
example: Revilla, Estrada and Enrile, they can be
suspended indefinitely because they are charged with
corruption. The suspension is 90 days (3 months)
mandatory. Ministerial functions are exercised by the
court for preventive suspension of not more than 90
days.
Q: can they complain about the violation of separation of
powers as of this provision that only congress can
suspend them
A: no because preventive suspension is not a penalty
yet. It is a mere precautionary measure and therefore it
does not violate the separation of powers provided in
article 6 section 16 paragraph 3
(3) Each House may determine the rules of its
proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds
of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not
exceed sixty days.
Q: How many votes is needed to expel a member? Or to
convict a member?
A: 2/3 votes. The same as you convict an impeachable
official you need 2/3 votes of the members of the senate.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
JOURNAL and ENROLLED BILL
Q: Publication of the proceedings in the journal
There are 2 records that you need to remember for
purposes of determining on how are laws passed in
congress?
A: The journal and the enrolled bill. These are evidences
of the enactment of a law.
The journal is being kept by the secretary of each house.
Q: The matters contained in the journal there are 4.
1. the yaes and the nays of every law that is
being carried out by the majority votes
2. the veto of the president
3. the votes of yes and nays overriding the
veto of the president
4. the result of any deliberation as long as it is
requested by at least 1/5 of the members
Those contained in the journal are conclusive as to the
probative value and they are binding upon the courts
Q: What about an enrolled bill?
A: when it is enrolled or engrossed
Q: When is it enrolled?
A: After a certification is issued by the speaker of the
house or the senate president that here is the version
that we agreed on and as to any insertions to the bill
while it is submitted to the president for signature
Q: What is its probative value?
A: It is binding as so far as to its execution, the tenor as
to its contents, it is binding upon the courts.
So if you want evidence on that is the tenor of the bill
then you refer to the enrolled bill because that is
conclusive as far as the court is concerned.
The due execution of the bill you go back to the enrolled
bill
Q: what if there will be a conflict between the enrolled bill
and the journal
A: the journal is practically a transcript of the
proceedings of deliberations of a particular bill, it is
verbatim. Records of what happened.
Q: apparently a conflict was created, your journal is
different as a result of the deliberation but in the enrolled
bill it is differently stated? Which of the 2 will prevail?
A: when the question as to whether the bill was properly
passed you go by the journal. Or if it is with regard to the
tenor, then you go by the enrolled bill.
[Judge forgot the title of the case, but its more likely to
be Tolentino v. Secretary of Finance, G.R. No. 115455
on VAT]
They were confused on what is the subject of the
product and the raw materials because in the journal
apparently it is subject to tax because the raw material
are the byproducts but it came out in the enrolled bill that
what was subject is already the by product. It is clear in
the intention of congress is for the byproduct but it is not
that way in the enrolled bill.
44
Supreme Court said that what must be with always is the
enrolled bill you go by the tenor or the validity of the bill.
Q: What then would be the remedy of congress?
A: They have to amend the bill. Withdraw it rather than
just change it without going through the process. As far
as the court is concerned, the enrolled bill is binding as
to its tenor.
Q: Whether there was a valid deliberation of the bill?
A: What will prevail is the journal. On how many votes
was passed then it will be the journal.
TN: US vs Pons
Neither House during the sessions of the
Congress shall, without the consent of the other,
adjourn for more than three days, nor to any other
place than that in which the two Houses shall be
sitting.
F. Electoral tribunals and the Commission on
Appointments
ELECTORAL TRIBUNALS
Section 17 of Article 6
SECTION 17. The Senate and the House
of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members
of the Senate or the House of Representatives, as
the case may be, who shall be chosen on the basis
of proportional representation from the political
parties and the parties or organizations
registered under the party-list system
represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman.
TN: these are favorite in the bar
Electoral tribunals. There are 2 electoral tribunals. One
in the senate and one is in the house of congress.
Q: what is the Composition of the electoral tribunals?
A: there are 9 members each. 3 senior justices of the
supreme court and 6 coming from the political parties on
proportionate representation.
TN: Q: once you are elected in the electoral tribunal, is
there any security of tenure?
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: even if you change your political party affiliation it will
not be a ground to remove you from the electoral tribunal
that is the case Bondoc v. Pineda, G.R. No. 97710,
September 26, 1991
electoral tribunals practically exercise the electoral
function.
Q: What is the function of the Electoral tribunals.
A: It is the sole judge (only judge) of election contest.
Involving election returns and qualification of members
of congress ( senate or house of representatives) as the
case may be.
Q: Define our terms
A: sole judge meaning- there a=can be no other judge or
courts that will have jurisdiction over members of
congress. You cannot go to the supreme court to
question the election return or qualification of the
members. That is the exclusive jurisdiction of the
electoral tribunals. It is the sole judge and therefore its
decision is not appealable unless there is abuse of
discretion amounting to lack of jurisdiction.
Case of Abubakar v. House of Representatives
Electoral Tribunal, G.R. No. 173310, 173609, March 07,
2007
The SC jurisdiction to refute decisions of HRET operates
only upon a showing of grave abuse of discretion on the
part of the tribunal tantamount to lack or excess of
jurisdiction. Otherwise its decision is final and executory.
Q: what are the cases that are within the jurisdiction of
the electoral tribunals?
A: election contest.
Q: what is an election contest?
A: it may be a winner or a loser. The loser has the
intention to remove the winner so that he will become
the member of congress.
Q: Therefore if isa lang ang candidate in one legislative
district. Do they have jurisdiction if a voter of that district
will question the qualification of the sole candidate of
that district? Where do you question?
A: with the electoral tribunal, comelec or the Supreme
Court
The Sampayan v. Daza, G.R. No. 103903, September
11, 1992. Only candidate of northern Samar in his
district. There was a question on his qualification
because according to the complainant he is not a
resident of the Philippines as he is a green card holder.
Q: Does the electoral tribunal have jurisdiction over him?
A: No, because the constitution is clear that only when
there is an election contest where there is a winner and
a losing candidate where the losing candidate will
replace him in congress.
Supreme Court has no jurisdiction as well because that
should have been asked before the election as to a
qualification contest to COMELEC.
45
Q: If it was not resolved by the COMELEC and election
was conducted?
A: over run by the election. The moment that candidate
has sworn into the house as member. COMELEC will
lose jurisdiction.
Q: Who is going to question of one already a member?
A: Supreme Court said that the congress or the house
concerned is never precluded to conduct exclusionary
proceedings in order to preserve the integrity of the
house that only qualified members shall continue to
serve the house. Shall remain as members as the house
Q: Jurisdiction of the electoral tribunals because
sometimes it will overlap with the jurisdiction of
COMELEC. When does the electoral tribunal assume
jurisdiction over an election contest.
A: only when it involves a member.
Q: If he is not yet a member because he is not yet
proclaimed as the winner?
A: Then it would have to be resolved first by the
COMELEC on the issue on qualification or returns or
election prohibition and returns.
Q: define returns? What is involved in the election in the
jurisdiction of the electoral tribunal? What do you mean
by election?
A: when it was attended with fraud or when there was
vote buying, violence or intimidation of election. It is in
the electoral tribunals. As to qualifications those that are
provided for in the constitution. Or even to his loyalty to
the republic. The returns should be something to do with
the election figures and results.
1. Nature
2. Powers
G. Powers of Congress
1. Legislative
The Law-Making Process
Q: What are the limitations?
A: There are substantial and procedural limitations.
Substantial limitations:
For as long as they are not contrary to the
Constitution, there cannot be any problem as to
whatever law that may be passed by Congress.
It must not be irrepealable , all laws passed by
Congress are subject to amendments or even
repeal.
Except: for a law that may violate the
non-impairment clause. (ex. the grant of
tax emption for a valuable consideration.
It cannot be repealed as it will violate
the non-impairment clause).
Matters relating to the prohibition against the
increase of the appellate jurisdiction of the
Supreme Court without its advice and consent.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Taking all the foregoing circumstances in their true
legal roles and effects, therefore, Section 27
of Republic Act No. 6770 cannot validly authorize
an appeal to this Court from decisions of the Office
of the Ombudsman in administrative disciplinary
cases. It consequently violates the proscription in
Section 30, Article VI of the Constitution against a
law which increases the appellate jurisdiction of
this Court. No countervailing argument has been
cogently presented to justify such disregard of the
constitutional prohibition which was intended to
give this Court a measure of control over cases
placed under its appellate jurisdiction. Otherwise,
the indiscriminate enactment of legislation
enlarging its appellate jurisdiction would
unnecessarily burden the Court.||| (Fabian v.
Desierto, G.R. No. 129742, September 16, 1998)
There should not be any law that would allow
recognition of nobility. Walay queen or king.
Procedural/ Process
If there is any proposal, it may be initiated by the
House of the Representatives or House of the
Senate. The session may be held
simultaneously on the same subject matter or
sequential. From one house to the other house,
following the same process.
Q: What is the process?
A: First, there is the calendaring of the bills at
the beginning of their term. E-calendar na nila
with the Secretary of the House. The secretary
will set a schedule in the calendar when is it to
be called. Iya rang title ang tawagon. It will be
referred to the concerned committee. If your bill
pertains to local governments, it will be given to
the committee on local governments.
Q: What would the committee on local
governments do upon receipt of your bill?
A: it is discretionary, this is what makes a
chairman of the committee very powerful, he
may act on it or gave due course to your
proposed bill or simply ignore it.
If it is acted upon, research will be done;
if not, public hearings will be conducted.
The Committee will propose changes to
your bill. The Committee will submit a
draft of their proposals to your bill as to
the changes, and It will be submitted to
the plenary session; meaning, as a
house.
Q: What would happen if it is submitted to the
plenary session?
46
A: This time, not only the title will be read, but
the provisions with the recommended proposals
for changes by the Committee will be discussed,
so that debates and discussion will follow on the
bill.The final draft will be prepared, it will be
printed and distributed among the members of
the House, and thereafter the vote will be taken,
this time only the title will be read.
(TN) A bill must embraced only one
subject matter to prevent log rolling,
Hodge podge.
They will submit a draft of their proposal to your bill as to
the changes and they will be submitted to plenary
session, meaning as a house
Q: Now what will happen after it was submitted to the
plenary session?
A: This time not only the title will be read but the
provisions with the recommended proposal for changes
by the committee will be discussed, so that debate and
discussion will follow
Q: Now what will happen?
A: The final draft will be prepared, printed and
distributed among the members of the house and
thereafter a vote will be taken, this time only the title will
be read, then that will go to the house of the senate to
go through the same process.
Q: What if they cannot agree on their version??
A: Then there is bicameral conference committee to iron
out the differences or conflicts of version between the
two houses they shall be compose equal number coming
from both houses.
Q: is this a third house?
A: NO, their purpose is only to iron out,
Q: Do they prevail?
A: Virtually they prevail but TN: there has to be approval
or concurrence by MAJORTIY VOTES OF BOTH
HOUSES, in other words they may also amend the
version of both houses and come up with their own
version, mao ni gitwag nila ug AMENDMENT BY
SUBSTITUION but such will only be effective if approve
by majority votes of both houses, it will be submitted to
plenary session of both houses and thereafter
Q: what will happen?
A: if they can agree now then there is the signing by
officers of both houses certifying to the effect that this is
now the version of both houses and then it will be
submitted to the president, and then
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Q: what will the president do??
A: He has a period of 30 days to act if he does not act
on the bill
Q: what will happen?
A: The bill becomes a law regardless of his objection, if
he has to make an objection he has to do that within 30
days..
Q: What will he do??
A: He can VETO THE ENTIRE BILL AS A GENERAL
RULE not just a portion of it but the entire bill the only..
EXCEPTION to that if it involves what??
1. Appropriation bill
2. Revenue bill or
3. Tariff bill
then he can make ITEM VETO, this is denied by
the president in the PDAF CASE, there is no vetoing
of the identification of the projects and as to the
amounts that may be spend for that project the
president would not have that opportunity with
regards to the PDAF thats why one of the reason it
was declared unconstitutional because it will violate
the veto power of the president.
Another point you should TN as to the presidents
signing it so if he disagrees with the bill,
Q: what will he do?
A: He returns the bill to the house of origin with his veto
message,
Q: is there a chance for the bill to be save?
A: YES. 2 INSTANCES
1. If they do not agree with the president they
may vote again upon the bill without any
changes notwithstanding the
recommendation of the president thats what
we call REPASSING of the bill, overriding
the power of the president however you
need a vote 2/3 of both houses not just from
the house of origin but also to the other
house, if they fail to get the 2/3 votes of the
other house the bill is as good as dead or
2. They may consider the recommendation of
the president to amend the bill and return
the bill to the president so that he will sign it.
By the way on ITEM VETO it involves like appropriation,
revenue or tariff bill one condition that must be complied
that the remaining provisions of the veto bill can stand
47
independent from that portion vetoed by the president
also the president may veto in effect, reject
INAPPROPRIATE provisions being inserted in the bill,
that may also be veto by the president by way of
exception to the exception.
There is also that IMPOUNDMENT POWER of the
president is so far as appropriation are concerns even if
there is an appropriation for a particular disbursement of
the government the president may refuse spend the
appropriated amount.
BAR Q: WHEN DOES A BILL BECOME A LAW?
A: When the president does not act within the
period of 30 days from receipt
When the president signs the bill
When the bill written by the president is
overridden by the 2/3 votes of both houses
Q: WHEN DOES A BILL BECOME A LAW WITHOUT
THE SIGNATURE OF THE PRESIDENT?
A: Executive action
Overriding the veto power of the president
Recall of the emergency power of the president
The calling of a special election for president
need have the signature of the acting president
BAR Q: is the three reading of the bill indispensable or
dispensable??
A: Indispensable
Q: is the three reading on separate days indispensable
or dispensable?
A: Dispensable, for as long as there is certification by the
president as to the urgency of the bill, that if it is not
acted upon immediately, there will be danger to public
safety or national security, TN it can be done in one day
not on separate days, nonetheless three readings
gihapon, its indispensable thats on of the procedural
limitations.
TAXATION
Q: in case of doubt whether you are taxable or not? How
do you resolve the doubt
A: against the taxpayer
Q: characteristics of our taxation?
A: uniform; equitable; and progressive.. Equitable
meaning according to the capacity to pay taxis, this was
ask in the BAR exam
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
BAR Q: what is the difference between uniform taxation
and equitable taxation?
A: equitable because that would depend on the capacity
to pay taxis, uniform that whatever tax that would be
impose should be applied to all person situated under
the same circumstances. Progressive because as your
tax base increases your tax rate increases base on
uniformity and equitable taxation.
BAR Q: who grants tax exemption?
A: it is only congress by majority votes of all members of
congress
Q: how about tax treaties?
A: is should be with the concurrence of the 2/3 votes of
the senate
Another point on the grant of tax exemption it could be
by a statue or by a constitutional provision
TN: on properties that are actually, directly, and
exclusively use for religious purpose, exempted from
property tax only, public cemeteries, monasteries etc.
charitable institution, in relation to this guys if funds
should be appropriated to the church, its priest or any
dignitaries of the church or religious sec.
Q: is that allowed?
A: NO, that would be a violation of separation of church
and state EXECPTION if payment are made to priest
working for AFP; penal institution; and orphanage and
leprosarium
On congress with regards to delegation Tariff power to
the president, go over with section 28.
TN: on sec. 32 on the mandate on passing of a law to
allow the people to legislate through the process of
initiative and referendum RA 6735.
a) Legislative inquiries and the oversight functions
Legislative Inquiry
The Senate or the House of Representatives or any of
its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in, or
affected by, such inquiries shall be respected.
TN: What is important with regards to legislative inquiry,
this power is a discretionary power of Congress.
Q: Who may be required to appear before a legislative
inquiry?
A: Any person.
Q: Does that include the president and his cabinet?
A: The president NO because of the executive privilege.
As regards the cabinet members, YES they may be
48
compelled unless the president invokes his executive
privilege.
(TN) |||Senate of the Phils. v. Ermita, G.R. No. 169777
April 20, 2006
It follows, therefore, that when an official is being
summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he
must be afforded reasonable time to inform the
President or the Executive Secretary of the possible
need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary
with fair opportunity to consider whether the matter
indeed calls for a claim of executive privilege. If, after the
lapse of that reasonable time, neither the President nor
the Executive Secretary invokes the privilege, Congress
is no longer bound to respect the failure of the official to
appear before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for
requiring officials to secure the consent of the President
under Section 3 of E.O. 464 is to ensure "respect for the
rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected
by Congress is an echo from Article VI Section 21 of the
Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be
respected.
In light of the above discussion of Section 3, it is clear
that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be
invalidated. That such authorization is partly motivated
by the need to ensure respect for such officials does not
change the infirm nature of the authorization itself.
Neri v. Senate Committee on Accountability of
Public Officers and Investigations, G.R. No. 180643,
September 04, 2008
Incidentally, the right primarily involved here is the right
of respondent Committees to obtain information
allegedly in aid of legislation, not the people's right to
public information. This is the reason why we stressed in
the assailed Decision the distinction between these two
rights. As laid down in Senate v. Ermita, "the demand of
a citizen for the production of documents pursuant to his
right to information does not have the same obligatory
force as a subpoena duces tecumissued by Congress"
and "neither does the right to information grant a citizen
the power to exact testimony from government officials".
As pointed out, these rights belong to Congress, not to
the individual citizen. It is worth mentioning at this
juncture that the parties here are respondent
Committees and petitioner Neri and that there was no
prior request for information on the part of any individual
citizen. This Court will not be swayed by attempts to blur
the distinctions between the Legislature's right to
information in a legitimate legislative inquiry and the
public's right to information.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
For clarity, it must be emphasized that the assailed
Decision did not enjoin respondent Committees
from inquiring into the NBN Project. All that is
expected from them is to respect matters that are
covered by executive privilege.
Q: What is the subject matter covered in a legislative
inquiry?
A: Any matter. Not necessarily in relation to a pending
legislation for as long as it relates to the scope of its
legislative inquiry. One can be asked whatever topic and
he may be asked to appear before the House or any of
its committee to shed light on those subject matters.
TN: They must promulgate their own rules and
regulations and the most important part, these rules
must be PUBLISHED. There will be a violation of DUE
PROCESS OF LAW should there be failure to publish
such rules and regulations. (Senate of the Phils. v.
Ermita, G.R. No. 169777 April 20, 2006)
The same principle was then invoked by Ombudsman
Gutierrez as regards to impeachment. The one who
initiates the impeachment is the House of
Representatives and it is the Senate which hears the
proceedings. OMB Gutierrez was then saying that the
right to due process was violated because the
impeachment rules and regulations were not published.
SC was saying that unlike proceedings in a legislative
inquiry, the Constitution requires that it should be
published in compliance with due process but there is no
such publication insofar as publishing the rules and
regulations with respect to the conduct of the
impeachment proceedings. Just to emphasize that
indeed the requirement of publication of the R&R with
respect to the conduct of legislative inquiry is
MANDATORY.
While "promulgation" would seem synonymous
to "publication," there is a statutory difference in their
usage.
The Constitution notably uses the word "promulgate" 12
times. A number of those instances involves the
promulgation of various rules, reports and issuances
emanating from xxx It is not for this Court to tell a co-
equal branch of government how to promulgate when
the Constitution itself has not prescribed a specific
method of promulgation.The Court is in no position to
dictate a mode of promulgation beyond the dictates
of the Constitution.|||xxx Had the Constitution intended
to have the Impeachment Rules published, it could have
stated so as categorically as it did in the case of the
rules of procedure in legislative inquiries, per Neri. Other
than "promulgate," there is no other single formal term in
the English language to appropriately refer to an
issuance without need of it being published. (Gutierrez
v. House of Representatives Committee on Justice, G.R.
No. 193459, February 15, 2011)
49
(TN) The rights of persons appearing in, or affected by,
such inquiries shall be respected. This includes his right
against self-incrimination.
(TN) The subject matters that may not be looked into by
Congress thru a legislative inquiry notwithstanding the
prerogative of exercising the power. It must always be in
aid of legislation not in aid of prosecution.
Case in point: Bengson v The Senate Blue Ribbon
Committee. This one has to be read in the light of the
decision of the SC in the Standard Chartered Bank v
The Senate Committee on Banks.
Citing Bengzon, Jr. v. Senate Blue
Ribbon Committee, the petitioners claim that since the
issue of whether or not SCB-Philippines illegally sold
unregistered foreign securities is already preempted by
the courts that took cognizance of the foregoing cases,
the respondent, by this investigation, would encroach
upon the judicial powers vested solely in these courts.
The argument is misplaced. Bengzon does not
apply squarely to petitioners' case.
It is true that in Bengzon, the Court declared that the
issue to be investigated was one over which jurisdiction
had already been acquired by the Sandiganbayan, and
to allow the [Senate Blue Ribbon] Committee to
investigate the matter would create the possibility of
conflicting judgments; and that the inquiry into the same
justiciable controversy would be an encroachment on the
exclusive domain of judicial jurisdiction that had set in
much earlier.
To the extent that, in the case at bench, there are a
number of cases already pending in various courts and
administrative bodies involving the petitioners, relative to
the alleged sale of unregistered foreign securities, there
is a resemblance between this case and Bengzon.
However, the similarity ends there.
Central to the Court's ruling in Bengzon that
the Senate Blue Ribbon Committee was without any
constitutional mooring to conduct the legislative
investigation was the Court's determination that the
intended inquiry was not in aid of legislation. The
Court found that the speech of Senator Enrile, which
sought such investigation contained no suggestion of
any contemplated legislation; it merely called upon
the Senate to look into possible violations of Section
5, Republic Act No. 3019. (Standard Chartered Bank v.
Senate Committee on Banks, Financial Institutions and
Currencies, G.R. No. 167173, December 27, 2007)
Q:What was invoked here (in Bengzon)?
A: In Bengzon, the person who was summoned before
the Senate Blue Ribbon Committee already had a
pending case before the Sandiganbayan.
The separation of powers between Congress and the
Judiciary, represented by the Sandiganbayan. Congress
has no power to determine the guilt of a person in a
legislative inquiry, because theirs is limited only to
understanding possible subject matter of future
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
legislation. Congress cannot determine whether a
person has a violated a law, or whether he is guilty or
not.
Q: What happened in Standard Charter Bank vs. The
Senate Committee on Banks?
A: This was a case about the sale of shares of stocks of
Standard Charter without the approval of Bangko
Sentral. Those investigated said theres already a
pending investigation by the BSP. To have them appear
before the Senate committee would violate their right
against self-incrimination and the separation of powers.
TN SC said the mere filing of a criminal or administrative
complaint before a court or a quasi-judicial body should
not automatically bar the conduct of legislative inquiry,
otherwise it would be easy to subvert any intended
inquiry by Congress through the institution of any
particular criminal or administrative action. This is the
most recent one with respect to the extent of legislative
inquiry of congress.
Q: What is subjudice?
A: TN, this is a limitation on the conduct of legislative
inquiry. SC said this subjudice rule restricts comments
and disclosures pertaining to judicial proceedings to
avoid pre-judging the issue, influencing the court, or
obstructing the administration of justice. This is from
Romero II vs. Estrada.
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.||| XXX
At any rate, even assuming hypothetically that Chavez is
still pending final adjudication by the Court, still, such
circumstance would not bar the continuance of the
committee investigation. What we said in Sabio v.
Gordon suggests as much:
The same directors and officers
contend that the Senate is barred from
inquiring into the same issues being
litigated before the Court of Appeals
and theSandiganbayan. Suffice it to
state that the Senate Rules of
Procedure Governing Inquiries in Aid
of Legislation provide that the filing or
pendency of any prosecution or
administrative action should not stop
or abate any inquiry to carry out a
legislative purpose.
A legislative investigation in aid of legislation and court
proceedings has different purposes. On one hand,
courts conduct hearings or like adjudicative procedures
to settle, through the application of a law, actual
controversies arising between adverse litigants and
involving demandable rights. On the other hand,
inquiries in aid of legislation are, inter alia, undertaken as
50
tools to enable the legislative body to gather information
and, thus, legislate wisely and effectively; and to
determine whether there is a need to improve existing
laws or enact new or remedial legislation, albeit the
inquiry need not result in any potential legislation. On-
going judicial proceedings do not preclude congressional
hearings in aid of legislation.
||| (Romero II v. Estrada, G.R. No. 174105, April 02,
2009)
Q: Why are these cases relevant?
A: Now that the cases have been filed against the 3
senators regarding the PDAF, I suppose that if they
continue legislative inquiry, they must be excluded. TN
that if it goes into disclosing information that might affect
the prosecution of the cases against the accused
senators, you must comply with the subjudice rule.
Q: What is the exercise of contempt power?
A: Incidental to the legislative inquiry power, but is not
expressly provided by the Constitution. It is implied that
should Congress choose to exercise the legislative
inquiry, Congress can cite one in contempt should a
person refuse to cooperate by not appearing if
summoned by Congress or any of its committee.
Q: How long will you be detained if the power of
contempt is exercised through detention as penalty?
A: Contempt by Senate forever. Because Senate is a
continuing body. The seats are never vacant, because
you only elect 12 Senators every election.
Contempt by HR or any of its committees 3 years. TN.
Q: What is question hour?
A: This is upon Congress initiative, in compliance with
its oversight function.
Q:Two modes of question hour.
First, a cabinet member with the consent of the
President may ask that he appear before any of the
committees or any of the houses. Once Congress
refuses, he cannot impose because of the principle of
separation of powers.
Second, it may be the House concerned that would
request the appearance of a certain department head, in
compliance with its oversight function.
The oversight function has always been mentioned with
regards to DAP and PDAF as justification.
Q: What is an oversight function?
A: TN, this is a function that embraces all activities
undertaken by Congress to enhance its understanding of
an influence of the legislation it has enacted. This
function is complied with under Section 22, Article 6.
Q: What does oversight encompass?
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: Clearly, oversight concerns post-enactment measures
taken by Congress to:
1. monitor bureaucratic compliance with program
objectives
2. determine whether agencies are properly
administered
3. eliminate executive waste and dishonesty
4. prevent executive usurpation of legislative
authority
5. assess executive conformity with the
congressional perception of public interest
Q: When can it be held?
A: Only in executive sessions, with the exclusion of
media when the matter involves national security or if
requested by the President that it should be done in
closed doors.
Q: TN, what are the acts done by Congress in the
exercise of its oversight power?
A: Scrutiny, Investigation, Supervision
Q: What is operational proximity test?
A: It involves communication with the President and his
subordinate if it involves consultative communication.
Because of the proximity of that officer with the
President, there may be communication that should not
be disclosed to the public, as it becomes part of the
executive privilege.
Q: What matters can Congress not look into?
A: Matters under executive privilege; diplomatic
negotiations of the President entered into with foreign
countries
It follows from the above discussion that Congress,
while possessing vast legislative powers, may not
interfere in the field of treaty negotiations. While Article
VII, Section 21 provides for Senate concurrence, such
pertains only to the validity of the treaty under
consideration, not to the conduct of negotiations
attendant to its conclusion. Moreover, it is not even
Congress as a whole that has been given the authority
to concur as a means of checking the treaty-making
power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity
as private citizens, petitioners-members of the House of
Representatives fail to present a "sufficient showing of
need" that the information sought is critical to the
performance of the functions of Congress, functions that
do not include treaty-negotiation
||| (Akbayan Citizens Action Party v. Aquino, G.R. No.
170516, July 16, 2008)
Q: Who is going to determine whether it is EP or not?
A:SC is the one that defines what may be covered under
EP or not. Now they want that Congress may define by
law what may constitute matters that may not looked into
51
by Supreme Court or Congress in the exercise of its
legislative inquiry.
b) Bicameral conference committee
c) Limitations on legislative power
TN of the Non-delegation of legislative powers, and the
permissible delegation
Delegation of Power
1. To the People, to a certain extent under RA 6735
(Initiative and Referrendum)
2. To the President, under Secs. 23 and 28 of Article VI
3. To the Administrative bodies
4. LGUs under RA 7160
Q: Can the President exercise legislative power on its
own under Secs. 23 and 28 of Article VI without a valid
delegation?
A: NO. Since, what the Philippines have is a Republican
system which maintains the principle of Separation of
Powers. However, under Martial Law (even if there is a
legislative body like the Interim Batasang Pambansa), or
if the government is revolutionary and there is no
legislative body at the moment, the president may
exercise legislative powers on its own.
Anyway, a good example of contests involving issues
regarding on election whether it was attended with fraud,
vote buying, violence or intimidation in elections, then
accusations like these are within the jurisdiction of the
electoral tribunal ordinarily if the candidate has already
been sworn into office as member of congress. When we
say qualifications, obviously it pertains to whether he has
the qualifications prescribed by the constitution like
whether he is a natural born citizen or even including his
loyalty to the Republic, that is included in the
qualifications.
Q: When you say returns, it has something to do with the
election returns. Have you seen an election return?
A: It is a tabulation of the number of votes obtained in
the election. And then you have the corresponding
words and figures of the votes that you have obtained.
That is with respect to the election returns. Sometimes,
pag-ihap nimo sa kahon, it does not jibe with the figures
and the words as stated in the election returns. Example,
sa kahon-kahon, it shows therein one million, but when
they counted it again, it was only 500,000. Now in things
like this, you go to the Electoral Tribunal if the member
has already become a member of the house. These are
the controversies involving election contest.
Q: What could be the process?
A: It would be an ordinary election contest or quo-
warranto. Kung election contest, ordinarily qualification
etc. Kung Quo Warranto, those involves qualifications,
that he is not qualified because he does not have the
qualifications prescribed by the constitution or he has
been convicted of disloyalty to the republic of the
Philippines. Quo warranto na siya ang imong petition.
Either petition the electoral tribunal has jurisdiction.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Q: Going back to what I was asking earlier: When does
the jurisdiction of the Electoral tribunal start?
A: Upon the valid proclamation of the member and he
swears in office as member of congress. COMELEC
shall be ousted from jurisdiction. Thereafter, the electoral
tribunal shall have sole jurisdiction over the election
contest. TN however of the cases of Codilla and the
Limkaichong case.
Codilla vs De Venecia G.R. No. 150605 December 10,
2002
Diba Ormoc man ni siya nga Congressman before Lucy
Torres Gomez. What happened in this case is that he
was disqualified even before the election because he
was engaged in electioneering. He was accused of kana
bitawng you are not supposed to spend public funds
during the election period because you might be using
the funds just to promote your own interest. What
happened was, I think, naappropriate na siguro ang
funds for the, kana bitawng, there are too many libaongs
in their place. Unya, it was during the election period nga
gi-pang fill-up-pan. He was accused of electioneering
and the Comelec disqualified him. Notwithstanding his
disqualification, he still won the election. But it was
disregarded by the COMELEC because he was already
disqualified. Ang kontra was proclaimed as the duly
elected member of congress. Codilla however was able
to seasonably file his motion for reconsideration with the
disqualification.
In other words, even before the election, or even before
the proclamation of Locsin, he already filed the MR. Ang
problema lang ka delayed ang pag resolve sa MR. The
MR was not resolved after the election and after the
proclamation of Locsin. It was only resolved finally by the
COMELEC at least two weeks before the next election.
Imagine ka, 2 weeks nalang and the COMELEC said
reversed ang decision! Meaning Codilla was not involved
in electioneering therefore he is qualified. His vote
should be counted and in the counting, he won in the
election. Karon, ni adto siya ni De Venecia. He asked De
Venecia that he be sworn in kay hapit na mo expire ang
term. De Venecia refused. De Venecia said that you file
first a petition for quo warranto to remove Locsin
because Locsin now is a member. The case went all the
way to the SC questioning De Venecia for his refusal to
swear him in. Was De Venecia correct in this case.
SC said De Venecia was incorrect. Why? Because when
the COMELEC made a declaration, that indeed it was
Codilla who won, the Electoral Tribunal.
TN here, the tribunal has no jurisdiction over the case of
Codilla because the COMELEC was not ousted yet of its
jurisdiction over the controversy. This is because Codilla
was able to file his MR seasonably even before the
proclamation of Locsin. Sa ato pa, ang proclamation diay
ni Locsin was premature and therefore invalid. If there is
any question on the qualification, it is the COMELEC.
And the resolution then here of the COMELEC with
52
respect to Codilla is still valid because the comelec was
never yet ousted of jurisdiction over the controversy.
Limkaichong vs COMELEC G.R. Nos. 178831-32
July 30, 2009
Limkaichong of Negros Oriental ran for member of
Congress from here district. A petition for disqualification
was filed against her. Kay kuno, ang papa ni
Limkaichong was a naturalized Filipino citizen, Chinese
man. But they alleged that ang naturalization kuno sa
iyang papa was invalid. So kung invalid ang
naturalization sa iyang papa, that means that she never
acquired the citizenship of the father as Filipino because
in the first place, the proceedings were invalid. That was
pending in the COMELEC. In the meantime, nag election
and limkaichong won. She was proclaimed
notwithstanding the disqualification case. And she
became the member of congress.
Q: What is the difference between the Codilla case and
her case.
A: There is a lot of difference. In the Limkaichong case,
the COMELEC passed a resolution that even if there is a
pending disqualification case, if you won in the election,
you should be proclaimed because time is of the
essence. That resolution was not issued yet in the case
of Codilla. But in that resolution, it made some
reservations that this is without prejudice to the
continuation of the proceedings. This time, because that
candidate is now a member, the Electoral Tribunal has
jurisdiction. Comelec has no more jurisdiction upon
publicly proclaiming the candidate as the duly elected
member of Congress. That is what happened to the case
of Limkaichong.
Now, because of the proclamation of Limkaichong, she
became a member of congress. The disqualification
case continued at the electoral tribunal.
Q: Does electoral tribunal has jurisdiction over the
disqualification case against Limkaichong? This is on the
citizenship of Limkaichong. Kung ordinaryo ra unta to
siya nga question of citizenship, most definitely, the
electoral tribunal has sole jurisdiction over the
qualification of that member. But TN, what was
questioned here is the naturalization of the father of
Limkaichong which the electoral tribunal has no
jurisdiction. Who has jurisdiction over naturalization?
A: You have a Naturalization Tribunal to revoke the
naturalization of a particular alien who is now a Filipino
citizen by virtue of the alleged naturalization taken as
invalid. In other words, what will the electoral tribunal will
do is that it will refer it to the naturalization tribunal. You
will wait for the result and by then, tapos na. Duha na
siguro ka term ang natapos before a resolution can be
secured from the naturalization tribunal to say WON the
naturalization of the father of Limakaichong is valid or
not. So what happened in the case of Limkaichong, it
was dismissed because the electoral tribunal has no
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
jurisdiction on the naturalization proceedings. If it was
just a simple question of qualification of Limkaichong,
definitely, Electoral Tribunal has jurisdiction over the
case.
So as it was declared in the case of Limkaichong vs.
COMELEC, Biraogo vs. Nograles, Paras vs. Nograles
and Brillante vs. COMELEC, once a winning
candidate has been proclaimed, taken his oath,
and assumed office as a Member of the House of
Representatives, the COMELEC's jurisdiction over
election contests relating to his election, returns, and
qualifications ends, and the HRET's own jurisdiction
begins. the proclamation of a winning candidate divests
the COMELEC of its jurisdiction over matters pending
before it at the time of the proclamation.
In the case of Villando vs. HRET and Limkaichong, SC
said Clearly, under law and jurisprudence, it is the State,
through its representatives designated by statute, that
may question the illegally or invalidly procured certificate
of naturalization in the appropriate denaturalization
proceedings. HRET no matter how complete and
exclusive does not carry with it authority to delve into the
legality of the judgment of naturalization in the pursuit of
disqualifying Limkaichong. To rule otherwise would
operate as a collateral attack of the citizenship of the
Father of Limkaichong which is not permissible.
Again I repeat, two modes of Petition may be filed.
A Petition for Electoral Protest or Petition for Quo
Warranto.
You also have those cases like Pimentel
vs. Zubiri (SET Case No. 001-07), where you have to
look into the election returns in Maguindanao. That
opening of the ballot boxes and the election returns is
administrative kuno sa COMELEC and that the
COMELEC has the authority to order the Election
supervisor to bring them in the Comelec for them to see
if indeed there are something wrong in the election
returns. Pimentel went all the way to the SC asking the
court to compel the COMELEC to produce the ballots
and the election returns. SC said we dont have
jurisdiction. Should you have such request, and then go
to the electoral tribunal who has jurisdiction because in
this case, Zubiri was already proclaimed as member of
the Senate. Should there be any questions with the
election returns, it must be with the Senate, not any
other tribunal either the comelec or the SC.
Q: What about party-list, who has jurisdiction on the
qualifications of the Nominees? If you are to question the
qualification of the nominee, who has jurisdiction, the
Comelec or the Electoral Tribunal? Two instances that
may happen. There may be a question on the validity of
the nomination of a nominee by a party-list organization.
Who is to resolve the conflict? Is it Comelec or electoral
tribunal. If there is a question on the qualification of the
nominee himself, who has jurisdiction?
53
Let us have the consolidated cases of Abayon vs.
HRET, Palparan vs. HRET G.R. No. 189466 February
11, 2010. SC said party-list nominees are considered as
elected members, therefore, HRET has jurisdiction to
hear and pass upon their qualifications. But if it is a
question of leadership of the accredited partylist
organization that based the nomination, TN that in the
case of Lokin, Jr. v. Commission on Elections, GR No.
193808, June 26, 2012, Villanueva claimed his own
nomination while Perla the Secretary General also
claimed their own nomination. There was confusion.
Who has jurisdiction to resolve the issue as to who was
validly nominated.
A: As this would involve a question of leadership of the
organization, jurisdiction is with the COMELEC. Comelec
must first resolve who is the rightful authority to make
the nomination. So the SC said in this case RA 7941
vested the comelec with jurisdiction over the nomination
of party-list representatives and prescribing qualifications
of each nominee and that no grave abuse of discretion
can be attributed to the Comelecs First Division and
Comelec en banc which had declared President
Villanueva as the proper party to submit CIBACs
certificate of nomination instead of Perla. Again I repeat,
if it falls into the validity of the nomination, ultimately to
the leadership of the organization, COMELEC has
jurisdiction. But if it falls into the qualification of the
nominee, HRET has jurisdiction.
Q: Can you represent the partylist in the HRET?
A: YES, if they comply with the requirement of
proportionate representation of the political party as
member of congress. If they can, then definitely, they
may have seat in the HRET
Q: What forum has jurisdiction over party-list
representatives?
A: In terms of qualifications, they shall be considered as
elected and therefore jurisdiction is still with the Electoral
Tribunal but if it relates to leadership of the organization
that the nomination of such leader is being questioned
then it would not be with the Electoral Tribunal rather it
will be with the COMELEC. (TN)
Q: What forum has jurisdiction over party-list
representatives?
A: In terms of qualifications, they shall be considered as
elected and therefore jurisdiction is still with the Electoral
Tribunal but if it relates to leadership of the organization
that the nomination of such leader is being questioned
then it would not be with the Electoral Tribunal rather it
will be with the COMELEC. (TN)
(i) Limitations on revenue, appropriations and tariff
measures
Power of the Purse
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law) 54

Though both houses can make bills, theyre equal, but Q: What if no appropriation law was passed, like what if
this is with respect to some of the bills that must they cant find funds? What is the effect?
originate from the HR before Senate can act on them.
A: Automatically, the budget of the previous fiscal year is
Q: What are these bills? carried out for the meantime during that year where
there is no approval yet of a general appropriation law.
A: Memorize them. *****
TN with regards to the general appropriation that there
1. Appropriation bills should be no riders, no insertions. GA bills are approved
2. Revenue or Tariff Bills easily, generally, because without authority to disburse,
3. Bills Increasing Public Debts the government will be paralyzed in their rendering of
4. Bills of Local Application services.
5. Private Bills
Q: What are riders or insertions?
Q: What does it mean that it should be HR that should
initiate these kinds of bills? The insertions of some subject matters in the
appropriations bill that is not related to it, like the
A: The senate may prepare its version, but they cannot creation of offices for example. Or maybe a particular
act on their version before they receive a copy of the bill substantive law that may relate to the appropriation of
coming from the HR. funds for the implementation of that substantive law.
These are riders that cannot be allowed.
Q: Can Senate amend the bill that originated from the
HR entirely by substituting it with their own version of the TN of procedure in approving appropriation in Congress
bill? (will be discussed more as we go along)
A: Yes, that is called amendment by substitution. This is Specifically state the amount, for example. Or if amount
allowed, for as long as it has been initiated by HR. is not specified, it must be determinable.
Ex. If there is utang in the IMF, and it has to be paid next
year, then that appropriation bill will be approved
Section 25 Pay particular attention to this because of because the amount is already determinable. You dont
PDAF, DAP, etc. This is with respect to appropriations in have to include that in the next budget, because it is
general. understood to be automatically included because you
Q: Who prepares the budget? have to pay your utang, as thats your obligation.

A: President Q: Special Appropriation vs. General Appropriation

Q: What is a budget? A: General Appropriation - you may not specifically state

A: List of expenses of the government by different
agencies, with the corresponding amounts.
Q:When is it submitted by the President?
A: Within 30 days from the opening of the regular
session of Congress.
Q: To whom is it submitted?
A: Congress
Q: What is an appropriation?
A: An authority or law that authorizes the disbursement
of public funds for a public purpose or for a specific
public purpose.
Q: That budget of the President, can it be increased by
Congress?
A: No, but it may be decreased. Remember.
Q: Effectivity?
A: 1 fiscal year
there the project
Special Appropriation you have to specify the project,
its purpose, and the availability of funds. Needs a
certification from the National Treasury that there are
funds allocated specifically for this purpose.
This section is Important. The bone of contention of
asking the DAP to be declared unconstitutional.
Q:What happened in this DAP?
A: The President supposedly took some savings from
the other departments of the executive branch and
augment the allocations of the Congressmen, for
projects that they can identify.
Q: What is the general rule in appropriation?
A: The general rule is it cannot be transferred, it is
already appropriated. And therefore cannot be
transferred for one department to another. Or within the
same department. Or for one item to another item.
Q: Who are the persons allowed by law to transfer
appropriations?
A: Executive Branch The President
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
The President of the Senate with respect to the House of
the Senate, the Speaker of the House of
Representatives with respect to the budget of the House
of Representatives, you have the Chief Justice of the
Supreme Court with respect to appropriations of the
Supreme Court and the Heads of the Constitutional
Bodies with respect to their budget. Again, I repeat,
there has to be a law, because this is an exception.
There has to be a statute, it is Congress that authorized;
these officers that I have enumerated to transfer their
savings from one department to another or from one
item to another.
The word is savings that must be transferred to augment
the appropriation of an item in their department that is
lacking or insufficient.
Q: Would you consider savings of a department of which
the President deliberately impound the disbursement or
budget? What do you mean by impoundment? Where
the President refused to disburse the amounts
appropriated for that particular project in his department.
A: Because, at the end, I supposed, that was June, at
the middle of the year; because the appropriations were
not expended, they were impounded by the President,
the money was still there. Instead he had that money
transferred for the expenditures for acceleration
programs to be identified by Members of Congress.
Q: That is why they are saying, how can they be
savings?
A: Savings are only accounted for after spending it and
then there is excess of the spending for that
appropriation. In this case, there was no expenditure for
the purpose it was appropriated. It was impounded, and
they were considered as savings and thereafter
transferred, thats the question; because when we speak
of savings, it must have been expended and the excess
of the expenditure are now considered as savings. You
would only know that at the end of the fiscal year, not at
the middle of the fiscal year.
So then, they are expecting that it might be declared
unconstitutional, aside from the fact that there was no
law authorizing the President to transfer, and it should
be from one department to another department under
the same branch, or from one item to another item within
the same department. Here, from the President to
Congress.
The money that was given to Congress, in relation to the
impeachment of Corona were taken from DAP. There
were proves that the DBM Secretary wrote letters to the
Congressmen asking them, what project do they want
for their money that was earmarked for them from the
DAP to spend for. Thus, violating not only par. 5 of
section 25, but as well as the separation of powers.
Q (student): Is DAP a law?
55
A: It is not a statute, that was the term they described
the expenditure of the money. It is still questionable
because it should be within the department, and the
money should be savings. How could there be savings
when they were never spended, because the President
impounded the funds. Although the President has that
discretion to impound; this one happened before during
the time of Cory Aquino. She did not like the CAFGU.
The money appropriated for the CAFGU was not
appropriated by her. Since there was no money coming
from the government to support CAFGU, CAFGU died in
its natural death. [In the case of Araullo vs Aquino, it
happened to be provided in a Budget Circular issued by
Sec. Abad]
Q: Can she be compelled to spend the money?
A: No, because under the principle of separation of
powers it is for Congress to appropriate, it is for the
President to spend. If the President does not spend, he
cannot be compelled by Congress or by the Supreme
Court. Congress is to appropriate or authorize the
disbursement. In this case, the President was
authorizing himself through an Executive Order, and
they are asking where the Executive Order is? They
cannot produce it. Because according to them, he
(President) is authorized under Article VI Sec. 25 par 5.
But you have to define your terms, because the law is
very clear that there cannot be any transfer of
appropriation; this is to prevent juggling of funds.
Q: What was the question on, that may have been
violated here, on the separation of powers?
A: Because in effect, it was the President who
determines for what the project the money will be spent
for, when it should have been Congress having the
power to appropriate funds. TN (DAP issue)
Q: who has the authority, if authorized by law, to transfer
funds?
At one time, it was the Chief of the AFP that transfer the
funds from the savings of AFP for a particular item to
another item. (BAR)
Q: Does the Chief of Staff have that power?
A: No, he doesnt have that power. If at all, the power is
given to the President being the commander-in-chief of
the AFP but is limited only to the executive branch. If
AFP is under the executive branch then probably, the
President has the power if authorized by law.
Paragraph 6 Section 25 of Article VI, on discretionary
funds, most of the funds that are discretionary, they
need not liquidate them. You just state there that it was
spent for a public purpose. so I doubt there are
appropriate vouchers; most of the intelligence funds are
discretionary funds, there are no receipts attached
supporting the disbursement for as long as you have the
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
certification to the effect that it was spent for a public
purpose.
Suplico, et al. vs Romulo Neri, et al, GR No. 178830,
July 14, 2008 (TN) if you can recall the ZTE; in order
for us to implement the project we need money. So we
borrowed money from China also.
Q: What did the government do on this?
A: We contracted a loan. Instead of remitting the
proceeds of the loan to the national treasury, they
applied the proceeds directly to the project. In effect,
there was no appropriation law authorizing the
disbursement of those proceeds.
Gi automatic nila, pareho ba og mangutang ka nga dili
na kinahanglan og appropriation law kung monthly na
nimo or annual amortization because the amount is
already determined. In the next budget, you dont even
have to include that, it is understood that it is included in
the budget of that department nga naka-utang, and
automatically the money is disbursed and is with
authority. It is what exactly they did, shortcut, they
borrowed the money for a specific purpose of
government and then it was approved, they got the
money and supposedly applied it directly for the project.
Q: Is that allowed:
A: Supreme Court said, Any government expenditure
without the corresponding appropriation from Congress
is unconstitutional. There can be no dispute that the
proceeds of foreign loan, whether concluded or not,
cannot be obligated in a procurement contract without
prior appropriation from Congress. When the executive
branch secures a loan to fund a procurement of goods or
services, the loan proceeds enter the National Treasury
as part of the general funds of the government.
Congress must appropriate by law the loan proceeds to
fund the procurement of goods or services, otherwise
the loan proceeds cannot be spent by the executive
branch.When the loan falls due, Congress must make
another appropriation law authorizing the repayment of
the loan out of the general funds in the National
Treasury. This appropriation for the repayment of the
loan is what is covered by the automatic appropriation.
The Constitution requires an appropriation law before
public funds are spent for any purpose. Section 29 (2),
Article VI of the Constitution provides:
No money shall be paid out of the
Treasury except in pursuance of an
appropriation made by law.
The power of the purse or the power of Congress
to authorize payment from funds in the National
Treasury is lodged exclusively in Congress. One
of the fundamental checks and balances finely
crafted in the Constitution is that Congress
authorizes the amount to be spent, while the
Executive spends the amount so authorized. The
Executive cannot authorize its own spending, and
56
neither can Congress spend what it has authorized.
The rationale of this basic check and balance is to
prevent abuse of discretion in the expenditure of
public funds.
Thus, the Executive branch cannot spend a single
centavo of government receipts, whether from taxes,
sales, donations, dividends, profits, loans, or from any
other source, unless there is an appropriation law
authorizing the expenditure.
Any government expenditure without the corresponding
appropriation from Congress is unconstitutional. There is
no exception to this constitutional prohibition that "no
money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." This
constitutional prohibition is self-executory.
To further insure compliance with Section 29 (2), Article
VI of the Constitution, the Administrative Code of
1987 expressly prohibits the entering into
contractsinvolving the expenditure of public funds
unless two prior requirements are satisfied. First, there
must be an appropriation law authorizing the
expenditure required in the contract. Second, there
must be attached to the contract a certification by
the proper accounting official and auditor that funds
have been appropriated by law and such funds are
available. Failure to comply with any of these two
requirements renders the contract void.
||| (Sulpico v. NEDA, G.R. No. 178830, 179317, 179613,
July 14, 2008)
So in this case, nang loan ka e-remit nimo, to get the
money back, in order to apply it to the project you
appropriate the funds. Pagkatapos bayaran nimo ang
utang, then there has to be also appropriation law
authorizing payment. Pero ang iyang repayment na,
subsequent payment it will now be covered by automatic
appropriation.
There was a case involving the COMELEC. There was
appropriation of funds for the procurement of election
paraphernalia, but what happened here, nagbidding, ang
nakada-ug ang highest bidder, beyond the appropriated
amount. (BAR)
Q: What happened?
A: it was nullified by the Supreme Court saying that it
was not authorized by an appropriation law.
(ii) Presidential veto and Congressional override
2. Non-legislative
a) Informing function
b) Power of impeachment
c) Other non-legislative powers
Confirmation of Appointments
Q: What is the Commission on Appointments? (TN)
A: This is another extension of Congress where
members all come from Congress. 12 Senators and 12
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
members coming from the HR to be headed by the
President of the Senate who can only vote if there is a
tie.
Q: When can they hold session? (TN)
A: Only when Congress is in session.
Q: Does the composition need to be fully or completely
filled up? (TN)
A: No. For as long as they will constitute a forum, that is
alright.
Q: What are its functions? (TN)
A: Basically, just to confirm and affirm nominations made
by the President while Congress is in session. These are
what we call Regular Appointments.
Q: What is the Commission on Appointments? (TN)
A: This is another extension of Congress where
members all come from Congress. 12 Senators and 12
members coming from the HR to be headed by the
President of the Senate who can only vote if there is a
tie.
Q: When can they hold session? (TN)
A: Only when Congress is in session.
Q: Does the composition need to be fully or completely
filled up? (TN)
A: No. For as long as they will constitute a forum, that is
alright.
Q: What are its functions? (TN)
A: Basically, just to confirm and affirm nominations made
by the President while Congress is in session. These are
what we call Regular Appointments.
Q: What are these appointments that require
confirmation by the CA? ***
A:
1. Heads of the different departments of the
Executive Branch except for the VP who may be
appointed to a Cabinet position; that does not
require confirmation of the CA.
2. Officers of the AFP whose rank ranges from
Colonel to General in the army. In the navy,
Captain to Admiral.
3. Ambassadors and other public officers including
the consuls.
4. Appointment vested in the President by the
Constitution (i.e. appointment of Constitutional
Commissioners and Regular members of JBC)
TN: With regards to the enumeration, that cant be
increased or reduced by ordinary legislation, should you
increase the number of government official requiring
confirmation by the CA, you need an amendment to the
Constitution. Similarly, if you are going to reduce those
appointments that would require confirmation, it has to
be an amendment to the Constitution.
57
Additionally, heres the list in the Commission on
Appointments Primer
Heads of Executive Departments (Cabinet and
Cabinet-rank officials)
Ambassadors, other Public Ministers and
Consuls (under the 1987 Constitution and the
Foreign Service Act)
Officers of the Armed Forces from the rank of
Colonel or Naval Captain
Regular Members of the Judicial and Bar
Council
Chairman and Commissioners of the Civil
Service Commission
Chairman and Commissioners of the
Commission on Elections
Chairman and Commissioners of the
Commission on Audit
Members of the Regional and Consultative
Commissions
1. Chairman of the Commission on Higher
Education
2. Chairman of the Commission on Information
and Communications Technology
3. Chairman of the Housing and Urban
Development Coordinating Council
4. Chairman of the Metropolitan Manila
Development Authority
5. National Security Adviser
6. Director-General of the National Economic
and Development Authority Presidential Adviser
on Peace Process
7. Lead Convenor of the National Anti-Poverty
Commission Punong Chairman of the
Commission on Filipinos Overseas
Chief of Philippine National Police
However, it must be noted that the appointments
of all judges and the Ombudsman shall not be
confirmed by the Commission on Appointments.
Instead, they are recommended by the Judicial and
Bar Council, and the President shall select from the
recommendations.
Q: 2 kinds of Presidential Appointments?
1. Regular Appointments - President
makes a nomination while Congress is
in session
2. Recess / Ad Interim Appointments
Nominations made while the Congress
was not in session. Such does not
confirmation by the CA.
Q: How about if the appointment is only temporary or in
acting capacity? (TN)
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: That would not need any confirmation by the CA.
[Temporary appointments are provided in Admin Code]
Case in point: Pimentel, Jr. v. Ermita, G.R. No. 164978,
October 13, 2005
SC sustained the President Arroyo in this case. If only a
temporary capacity to fill in the gap while the President
is still meditating on who to appoint (regular
appointment) as Secretary of a particular department or
Cabinet member, that would not require a confirmation
by the CA. As regards Ad interim appointment
however, it becomes effective upon qualification of the
nominee.
Finally, petitioners claim that the issuance of
appointments in an acting capacity is susceptible to
abuse. Petitioners fail to consider that acting
appointments cannot exceed one year as expressly
provided in Section 17(3), Chapter 5, Title I, Book III
of EO 292. The law has incorporated this safeguard to
prevent abuses, like the use of acting appointments as a
way to circumvent confirmation by the Commission on
Appointments.
In distinguishing ad interim appointments from
appointments in an acting capacity, a noted textbook
writer on constitutional law has observed:
Ad-interim appointments must be
distinguished from appointments in an
acting capacity. Both of them are effective
upon acceptance. But ad-interim
appointments are extended only during a
recess of Congress, whereas acting
appointments may be extended any time
there is a vacancy. Moreover ad-interim
appointments are submitted to the
Commission on Appointments for
confirmation or rejection; acting
appointments are not submitted to the
Commission on Appointments. Acting
appointments are a way of temporarily
filling important offices but, if abused, they
can also be a way of circumventing the
need for confirmation by the Commission
on Appointments.
However, we find no abuse in the present case.
The absence of abuse is readily apparent from
President Arroyo's issuance of ad
interim appointments to respondents immediately upon
the recess of Congress, way before the lapse of one
year.
|||
Q: What is the process in regular appointments? (Primer
of the Commission on Appointments)
A: The regular appointments which are contemplated
under the first paragraph of Article VII, Section 16 of the
1987 Constitution go through the following stages:
1. nomination
2. consent
3. appointment
4. acceptance by the nominee
58
What the President sends to the Commission is just a
nomination. After the Commission has given its consent,
the President issues the appointment. It is only when the
last stage has been completed may the officer
concerned take his oath of office.
Q: What is the process in ad interim appointments?
(Primer of the Commission on Appointments)
The second paragraph of Article VII, Sec. 16, of the
1987 Constitution also empowers the President to issue
appointments while Congress is not in session. Such
appointments are called ad interim appointments, and it
goes through the following stages:
1. appointment
2. confirmation
An ad interim appointment is permanent in nature and
takes effect immediately. Thus, one who was issued an
ad interim appointment may immediately enter upon the
discharge of his functions.
An ad interim appointment ceases to be valid upon
disapproval by the Commission on Appointments or, if
not confirmed, until the next adjournment of Congress.
Judge: Unlike temporary appointment, this is
PERMANENT. This is issued by the President when
Congress is not in session and therefore CA is not in
session. It is effective upon qualification of the nominee.
However, if its not confirmed, it will last only until the
next adjournment of Congress. Such nominee can be
renominated.
Q: If disapproved, can the President re-nominate the
same candidate?
A: NO.
Q: If approved, what will happen next?
A: The President would issue a Commission. Thereafter,
that officer is going to take his oath of office.
Q: If not acted upon, what would be the
effect/consequence?
A: It is understood that the appointment shall last only
until the next adjournment of session of Congress.
Q: Can such appointee be re-nominated?
A: Yes. That happened to De Lima, Dinky Soliman. For
4 years, they have not been confirmed, until finally, just
recently, their nominations were confirmed by the CA.
Q: Is there a limit on the number of re-nomination?
A: No. That is the prerogative of the President. To limit
that would be a violation of the separation of powers.
What they must do is DISAPPROVE so that, that
candidate will not be re-nominated.
TN: CA promulgates its own rules and regulations,
independent of the rules and regulations of the
Congress. Congress cannot interfere in the promulgation
of such rules. In that sense, CA is independent. Although
highly partisan because if you are no longer a member
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
of the political party that nominated you as a member of
the CA, automatically you cease to be a member of the
CA. (Pimentel, Jr. v. Ermita, G.R. No. 164978, October
13, 2005)
Case in point: | Matibag v. Benipayo, G.R. No. 149036,
April 02, 2002
20.ID.; ID.; ID.; ID.; ID.; WHEN DISAPPROVED
CANNOT BE REVIVED BY ANOTHER AD
INTERIM APPOINTMENT. The prohibition on
reappointment in Section 1 (2), Article IX-C of the
Constitution applies neither to disapproved nor by-
passed ad interim appointments. A disapproved ad
interim appointment cannot be revived by another ad
interim appointment because the disapproval is final
under Section 16, Article VII of the Constitution, and not
because a reappointment is prohibited under Section
1(2), Article IX-C of the Constitution. A by-passed ad
interim appointment can be revived by a new ad
interim appointment because there is no final
disapproval under Section 16, Article VII of the
Constitution, and such new appointment will not result in
the appointee serving beyond the fixed term of seven
years
Q: Would that constitute a violation against prohibition
on re-appointment if the same person is re-nominated by
the President?
A: No violation because that statement in the provision
of the Constitution stating that it is without re-
appointment is applicable only to REGULAR
APPOINTMENTS. An ad interim/recess appointment is
not the kind of appointment contemplated by law that
prohibits re-appointment. (TN)
Q: Any chance of a party-list representative being
represented in the electoral tribunal or in the commission
on appointments?
A: Yes. For as long as the representative complies with
the requirements under the Constitution for appointment
as member of the said bodies such as proportional
representation from the political parties. Its up for these
bodies to promulgate the rules and regulations that may
allow the members coming from the party-list to
represent in the electoral tribunal and/or in the
commission on appointments.
Congressional Records and Books
The records and books of accounts of the Congress
shall be preserved and be open to the public in
accordance with law, and such books shall be audited by
the Commission on Audit which shall publish annually an
itemized list of amounts paid to and expenses for each
Member.
IV. Executive Department
59
What you must TN on article VII guys that is
EXECUTIVE BRANCH, you have to know what is
Executive Power,
Q: if executive power is vested in the president, what
would be the consequence?
A: He is the chief executive and the administrator of the
laws of the land, you know already if he is the chief
executive, he controls the executive branch and all
offices belonging to the executive branch, as the
administrator of the laws of the land he make sure that
laws are faithfully executed.
There are powers however, that are not expressly
provided in the constitution being given either to the
legislative or judiciary branch it is understood that this
power should be exercise by the president, this is what
we call RESIDUAL POWER of the president, being the
chief executive. One of these powers is the power to
deport undesirable aliens; the power on who is to enter
into the country is also a residual power TN of the case
of Marcos vs Manglapus.
Another power of the president which is not provided in
the constitution that is understood that this power should
be exercise by him, this what we call the IMMUNITY OF
THE PRESIDENT FROM SUIT, the source of immunity
is not by express provision of the constitution rather it is
more of jurisprudential source rather than provided by
the constitution TN of the extent of the enjoyment of the
presidential immunity always remember this guys if the
president is immune from suit
Q: up to what extent?
A: only for acts he committed in the performance of his
official function as president during his incumbency,
actual tenure NOT TERM, so even if he has still five
years, however, is no longer the president of the republic
he can no longer enjoy the immunity from suit, TN of the
case of Estrada vs Desierto, and the case of Romualdez
vs Sandiganbayan so you notice in all cases although
the target is the president, he is never impleaded as the
defendant rather it is always the executive secretary
thats the case of David et al vs Ermita, SC said it is not
proper to implead the president as respondent settled is
the doctrine that the president during his tenure of office
or actual incumbency may not be sued in any civil or
criminal case and there is no need provide for it in the
constitution. CIVIL OR CRIMINAL ha sa ato pa.
We now come to the scope of immunity that can be
claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in
character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these
crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
a non-sitting president. Petitioner cannot cite any
decision of this Court licensing the President to commit
criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that
immunity is an inoculation from liability for unlawful acts
and omissions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts
illegally is not acting as such but stands in the same
footing as any other trespasser.||| (Estrada v. Desierto,
G.R. Nos. 146710-15, 146738, March 02, 2001)
Incidentally, it is not proper to implead President Arroyo
as respondent. Settled is the doctrine that the President,
during his tenure of office or actual incumbency, may not
be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President,
the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is
important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to
the performance of his official duties and functions.
Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which
impairs his usefulness in the discharge of the many
great and important duties imposed upon him by the
Constitution necessarily impairs the operation of the
Government. However, this does not mean that the
President is not accountable to anyone. Like any other
official, he remains accountable to the people but he
may be removed from office only in the mode provided
by law and that is by impeachment.||| (David v.
Macapagal-Arroyo, G.R. No. 171396, May 03, 2006)
Q: if a case is filed against the president for collection of
sum of money during his incumbency, will the action
prosper?
A: no
Q: case for murder? Will the action prosper?
A: no, you wait until he finishes his tenure
Another point you should TN also on immunity from suit
it is special to the president therefore, only the president
can invoke the immunity not his cabinet members even if
they are consider as there alter ego, so you remember
also that case of Soliven vs Makasiar, where Soliven ask
for the dismissal of the complaint filed by president
Aquino against the star(not sure) and the publisher on
the ground is immune from suit, they are saying that wla
tay dag anan ani we cannot file a counter suit because
he is immune from suit, SC said the privilege pertains to
the president by virtue of his office, there is nothing in
our laws that would prevent the president from waiving
the privilege, the choice whether to exercise the privilege
60
or to waive it is solely belongs to the president you
cannot use that as a defense against the president
REMEDIAL LAW; CRIMINAL PROCEDURE;
PROSECUTION OF OFFENSES; LIBEL; RULES
THEREON SHOULD BE EXAMINED FROM VARIOUS
PERSPECTIVES IF DIRECTED AT A HIGH
GOVERNMENT OFFICIAL; THE SUPREME COURT
SHOULD DRAW A FINE LINE INSTEAD OF LEAVING
IT TO A LOWER TRIBUNAL. In fact, the Court
observed that high official position, instead of affording
immunity from slanderous and libelous charges would
actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be
slander if directed at the typical person should be
examined from various perspectives if directed at a high
government official. Again, the Supreme Court should
draw this fine line instead of leaving it to lower
tribunals.||| (Soliven v. Makasiar, G.R. No. 82585,
82827, 83979, November 14, 1988)
Now on the qualifications of the president the most
important part on the qualification on citizenship he must
be natural born, registered voter, able to read and write,
40 yrs of age on the day of election and resident of the
Philippines for 10 yrs, just over with that guys, the VP
shall have the same qualification, although he may be
nominated as a cabinet secretary without need of
confirmation by the CA.
Q: Section 4, what is the controversy relating to this?
Formento vs. Estrada (id). What is the term of office of
the President?
A: This would now be an issue aside from the fact that
there was a question as to the qualification of Estrada
due to his conviction for plunder. They are asking for the
disqualification of Estrada as mayor because according
to the complainant in as much as he was convicted for
plunder his right to run from public office likewise is
removed from him by perpetual disqualification. What is
the defense of Estrada was that he was granted with
absolute pardon. If absolute pardon was granted to him
then he will be restored to his political and civil rights.
And that is discretionary also to the president as one of
his powers not subject to review even by the Supreme
Court.
Term of Office
TN as to the term of office. The president and the vice
president are directly elected by the people for a definite
term of 6 years. As to re-election; the president shall not
be eligible for any re-election. The vice president has 1
re-election.
Q: Any possibility of the president serving more than 6
years?
A: Yes, provided that he has not served for more than 4
years as acting president rather as presidents
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
successor. Meaning, he was a vice president and he
succeeds to the presidency, provided he has not served
for more than 4 years he can run for election as
president in the next election then definitely if he has
fully served the 6 years term as president in the election
after that election, then he would like have 10 years.
Now, is this disqualification perpetual regardless he did
not finished his term. Like Estrada, he served only for
like 3 years. He did not finish his 6 years. That is why he
ran for president.
Q: What was the theory here?
A: Because he has not finished his term and therefore
the disqualification against re-election will not apply. But
it has never been resolved by the Supreme Court. TN
nd
TN: as regards to Vice president, 2 terms and the 2
paragraph is clear that no voluntary renunciation in the
office for any length of time shall not be considered as
an interruption in the continuity of the service for the full
term for which he was elected. That only applies to the
VP not to the President. That if he resigns before the
term expires it didnt say that it will be an interruption in
the continuity of his term. What is mentioned is that it is
not an interruption it is only with the respect of the term
of office of the vice president because apparently he has
2 terms to compute the consecutiveness of the term they
have to say that. Since there is no mention about
interruption on the continuity of his term should he not
finish his term then he is still eligible for election as
president. There can hardly be called as re-election I
suppose as far as he understands the law.
Q: On the canvassing of the election returns. Who does
that?
A: It is not the COMELEC neither the SC but the
members of the congress as the canvassers of the
election returns of the president and the vice president.
Whoever garners the highest number of votes shall be
declared as the winner. In case of a tie, it shall be
broken by majority votes of the members of the congress
voting in a joint session voting separately.
Presidential Electoral Tribunal
Electoral tribunal for vice president and president is the
PET. Macalintal questioned the constitutionality of the
creation of PET consisting of the justices of the SC
because under the Constitution it says that theyre not
supposed to do non-judicial function as it will violate the
separation of powers. This is an election function
(electoral tribunal). It was then asked by Macalintal
whether or not it is constitutional. SC said that a plain
reading of article 7 par.7 sec.4 readily reveals a grant of
authority to the SC sitting en banc in the same vein
although the method by which the SC exercise this
authority is not specified in the provisions the grant of
power does not contain any limitation on the SCs
exercise thereof. The SC method of deciding presidential
and vice presidential election contest through the PET is
61
actually a derivative of the exercise of prerogative
conferred by the aforequoted constitutional provision
thus the subsequent directive in the provision for the SC
to promulgate its own rules for the purpose. It is beyond
cavil that when the SC, as PET, resolves Presidential or
Vice Presidential Contest it performs what is essentially
a judicial power.
It is also beyond cavil that when the Supreme
Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is
essentially a judicial power. In the landmark case
of Angara v. Electoral Commission, Justice Jose P.
Laurel enucleated that "it would be inconceivable if the
Constitution had not provided for a mechanism by which
to direct the course of government along constitutional
channels." In fact, Angara pointed out that "[t]he
Constitution is a definition of the powers of government."
And yet, at that time, the 1935 Constitution did not
contain the expanded definition of judicial power found in
Article VIII, Section 1, paragraph 2 of the present
Constitution.
With the explicit provision, the present
Constitution has allocated to the Supreme Court, in
conjunction with latter's exercise of judicial power
inherent in all courts, the task of deciding presidential
and vice-presidential election contests, with full authority
in the exercise thereof. The power wielded by PET is a
derivative of the plenary judicial power allocated to
courts of law, expressly provided in the Constitution. On
the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the
Supreme Court.
If the logic of petitioner is to be followed, all
Members of the Court, sitting in the Senate and House
Electoral Tribunals would violate the constitutional
proscription found in Section 12, Article VIII. Surely, the
petitioner will be among the first to acknowledge that this
is not so. The Constitution which, in Section 17, Article
VI, explicitly provides that three Supreme Court Justices
shall sit in the Senate and House Electoral Tribunals,
respectively, effectively exempts the Justices-Members
thereof from the prohibition in Section 12, Article VIII. In
the same vein, it is the Constitution itself, in Section 4,
Article VII, which exempts the Members of the Court,
constituting the PET, from the same prohibition.
We have previously declared that the PET is not simply
an agency to which Members of the Court were
designated. Once again, the PET, as intended by the
framers of the Constitution, is to be an
institution independent, but not separate, from the
judicial department, i.e., the Supreme Court.
||| (Macalintal v. Presidential Electoral Tribunal, G.R. No.
191618, November 23, 2010)
In the landmark case of Angara vs. Electoral
Commission, JP Laurel inoculated that it would
inconceivable if the constitution had not provided for a
mechanism by which to direct the course of government
along constitutional channels. In fact Angara pointed out
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
that the constitution is a definition of the powers of the
government and yet at that time the 1935 constitution did
not contain the expanded definition of judicial power. So,
this is not an electoral function but rather, it was
emphasized in this case that this is a judicial power and
therefore does not violate article 7 section 4 par. 7
thereof. TN of that.
Q: Also, in relation to the filing of the election protest in
the presidential electoral tribunal, what will happen if the
protestant will resume the function of whatever position
that he left before he ran as president? Like, Santiago
she went back as member of the senate because she
cant wait for the result of the election. What was the
effect of her returning to the senate while there was still
the pending election protest that he filed against
Ramos?
A: She is then considered to have withdrawn or abandon
her election protest against ramos. In the case of
legarda, legarda filed an election protest against de
castro. While waiting for the outcome of the election
protest she ran as senator.
Q: What was the effect?
A: Like in the case of Santiago she was considered to
have effectively abandoned or withdrawn her protest
when she ran in the senate which term coincides with
the term of the Vice Presidency.
Q: On the Salaries of President and Vice President, it
shall be determined by law. Can it be decreased during
his tenure?
A: No, it cannot be decreased. But it can be increased.
However, it will only take effect after the expiration of the
term of office.
Filling up of vacancy
Q: 2 ways by which vacancy may occur:
(1) at the beginning of the term or
(2) during the incumbency of the president.
At the beginning of the term it could be temporary or
permanent.
Temporary Vacancy, when the president does not
qualify in the meantime because there are still
controversies as to his qualification, no president was
chosen
Q: Who will succeed?
A: The VP shall only act as the president.
Q: What if there is no Vice President?
A: It will be the President of the Senate that will act as
President.
Q: In the absence of the President of the Senate?
A: It will be the Speaker of the House of Representative.
62
Q: In Permanent Vacancy, What if at the beginning of
the term the president dies, resigns, permanently unable
to perform his duties? What will happen?
A: The VP will not just be acting but becomes the new
president. There will be a vacancy in the office of the VP.
Q: How will it be filled up?
A: There will be a nomination of the President coming
from congress who will be chosen by majority votes of
the members of the congress.
During incumbency:
Q: Permanent vacancies: 4 ways to have a permanent
vacancy.
A:
1) he dies
2) he resigns (TN of the definition of resignation in the
case of Estrada vs. desierto. What was emphasized is
that there is no form of resignation. It may not be formal,
need not be in writing. For as long as there is the
intention to relinquish the powers of the office and his
acts corresponds to the renunciation or to the giving up
of the powers then one is considered to have resigned.
Vice president will be now the President.)
3) removed through impeachment
4) one who is permanently incapacitated to perform his
duties.
Q: Temporary Vacancies: (TN)
A:
1) When the president is under temporary disability (TN
of the circumstances)
a) president himself declares that he cannot
performs his duties. Automatically the VP will act as the
president.
b) by the declaration of the majority of the
members of the cabinet to the congress that the
president is unable to perform his duties. Automatically
the VP shall act as a president but of course that can be
disputed by the president if he does not agree and can
simply tell the congress that his cabinet is lying.
c) if this majority of the cabinet would inist the 2
second time that indeed the president is unable, then the
congress will now have to decide to declare the
president under temporary disability.
Q: How many votes of the congress is needed?
A: 2/3 of the members voting separately.) TN of the case
of Estrada vs Desierto on temporary disability.
Petitioner now appears to fault Congress
for its various acts expressed thru resolutions which
brushed off his temporary inability to govern and
President-on-leave argument. He asserts that these
acts of Congress should not be accorded any legal
significance because: (1) they are post facto and (2)
a declaration of presidential incapacity cannot be
implied.
We disagree. There is nothing in section 11
of Article VII of the Constitution which states that the
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
declaration by Congress of the President's
inability must always be a priori or before the Vice-
President assumes the presidency. In the cases at
bar, special consideration should be given to the fact
that the events which led to the resignation of the
petitioner happened at express speed and
culminated on a Saturday. Congress was then not in
session and had no reasonable opportunity to act a
priori on petitioner's letter claiming inability to
govern.
||| (Estrada v. Desierto, G.R. Nos. 146710-15, 146738,
April 03, 2001)
Q: Going back to permanent vacancy, who will succeed?
A: It will be for the VP.
In the absence of VP, it will be the President of the
Senate.
In the absence of the President of the Senate, it will be
the Speaker of the House of Representative.
Q: Now then, in the absence of those mentioned above?
A: They will convene and pass a law providing for the
manner of succession.
Q: Can they call for a special election?
A: You remember if the vacancy occurs within 18
months before the next regular election, no more special
election. You have to wait until a regular election will be
called which is every 2nd Monday of May.
TN: the calling of special election does not need the
signature of the acting president.
TN: Printing of the bill before it is voted upon is
dispensable if there is a certification that the bill is
urgent.
Q: When there is vacancy in both offices (president and
VP)?
A: There will be a special election. [Art. 7 Sec. 10 of
1987 Consti]
Section 13 HOLDING OTHER OFFICES/ CONFLICT
OF INTERESTS
He cannot appoint any of his relatives either by
consanguinity or affinity in the fourth civil degree.
BAR Q: To what positions in the government during his
tenure?
A:
1. As members of the constitutional
commission
2. Office of the ombudsman
3. Secretaries under secretaries
4. Chairmen or heads of bureaus or offices
including GOCCs and their subsidiaries.
Section 14 APPOINTMENTS EXTENDED BY AN
ACTING PRESIDENT
63
It will only be effective until it is not revoked within 90
days. From the assumption of office by the president
regular, it becomes permanent. If there is any revocation
of the appointments of the acting president , it should be
done within 90 days from the assumption and re-
assumption of office.
Section 15 MIDNIGHT APPOINTMENTS
The President should not make any appointments. TN:
Within 60 days or 2 months before the regular
Presidential election. This does not apply to local chief
executives. It only applies to the President.
Q: What is the extent?
A: Practically, all government positions including the
judiciary, except justices of the Supreme Court.
CASES: de Castro vs. JBC; Soriano vs. JBC.
Given the background and rationale for the prohibition in
Section 15, Article VII, we have no doubt that the
Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The
framers did not need to extend the prohibition to
appointments in the Judiciary, because their
establishment of the JBC and their subjecting the
nomination and screening of candidates for judicial
positions to the unhurried and deliberate prior process of
the JBC ensured that there would no longer be midnight
appointments to the Judiciary. If midnight appointments
in the mold of Aytona were made in haste and with
irregularities, or made by an outgoing Chief Executive in
the last days of his administration out of a desire to
subvert the policies of the incoming President or for
partisanship, the appointments to the Judiciary made
after the establishment of the JBC would not be suffering
from such defects because of the JBC's prior processing
of candidates. Indeed, it is axiomatic in statutory
construction that the ascertainment of the purpose of the
enactment is a step in the process of ascertaining the
intent or meaning of the enactment, because the reason
for the enactment must necessarily shed considerable
light on "the law of the statute," i.e., the intent; hence,
the enactment should be construed with reference to its
intended scope and purpose, and the court should seek
to carry out this purpose rather than to defeat it. ||| (De
Castro v. Judicial and Bar Council, G.R. No. 191002,
March 17, 2010)
The gist of the Supreme Court regarding the midnight
appointments even applied to appointments of the
judiciary except for the Supreme Court because of that
provision of the constitution that the President must
make an appointment within 90 days from the
occurrence of the vacancy. He has to fill that up. It is
mandatory. The same goes with the Sandiganbayan.
Controversy: Relating to the return of the JBC list for
appointment to the Sandiganbayan, which the JBC also
returned to the President because they are not going to
change the list and so the President was compelled to
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
make the appointment because the period within which
to make the appointment which is 90 days from the
occurrence of the vacancy had already lapsed. Because
of that requirement, under the Constitution, that the
appointment of the justices of the Supreme Court,
according to the Supreme court, the matter of midnight
appointment does not apply to the SC justices.
CASE: Pimentel vs. Ermita regarding on the acting
appointments not requiring any confirmation from the CA
because that is a discretionary power of the President
that cannot be included into by the CA or the
Commission on Appointments.
Congress, through a law, cannot impose on the
President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego,
whether temporary or permanent, holds a position of
great trust and confidence. Congress, in the guise of
prescribing qualifications to an office, cannot impose on
the President who her alter ego should be.
The office of a department secretary may
become vacant while Congress is in session. Since a
department secretary is the alter ego of the President,
the acting appointee to the office must necessarily have
the President's confidence. Thus, by the very nature of
the office of a department secretary, the President
mustappoint in an acting capacity a person of her choice
even while Congress is in session. That person may or
may not be the permanent appointee, but practical
reasons may make it expedient that the acting appointee
will also be the permanent appointee.
The law expressly allows the President to make
such acting appointment. Section 17, Chapter 5, Title I,
Book III of EO 292 states that "[t]he President may
temporarily designate an officer already in the
government service or any other competent person to
perform the functions of an office in the executive
branch." Thus, the President may even appoint in an
acting capacity a person not yet in the government
service, as long as the President deems that person
competent.
||| (Pimentel, Jr. v. Ermita, G.R. No. 164978,
October 13, 2005)
Section 16 APPOINTMENTS REQUIRING THE
CONFIRMATION OF THE COMMISSION ON
APPOINTMENTS
To emphasize, on the appointments of the President
during recess, it is permanent. Immediately effective
upon qualification of the nominee, however, the term is
limited if not confirmed. It shall last only until the next
adjournment of the Congress.
Section 17 CONTROL OF THE PRESIDENT OVER
THE EXECUTIVE DEPARTMENTS, BUREAUS AND
OFFICES
To ensure that laws are faithfully executed, TN: As part
of the control, the President has the power to reorganize
the office.
64
Q: As part of the reorganization of the executive branch,
what is included?
A: He can create offices without violating the separation
of powers or even abolish the office.
The creation of the Truth Commission that was
sustained by the Supreme Court as constitutional after
all that is part of his executive power as regards to make
sure that laws are faithfully executed. According to the
Supreme Court in those cases where the President
makes an office under the executive branch, it is not
usurpation of legislative function because it does not
entail another appropriation of funds for the operation of
the office because the funds will be taken from the
appropriated amount for the executive branch.
With regards to the abolition, inasmuch as the office is
created by law, it is understood that if there is any
abolition of that office, that is within the prerogative of
the Congress.
TN: CASE: Buklod ng Kawaning EIIP vs. Zamora
where the Supreme Court said,
GR: The power to abolish a public office is lodged with
the legislature.
EXC: However, is that as far as bureaus, agencies (TN:
this may also be asked in administrative law), or offices
in the executive department, 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 broad authority to carry out
the organization measures for simplicity, transparency
and expigiency in the government service. The Chief
Executive under our laws has the continuing authority to
reorganize the administrative structure of the office of
the President.
CASE: Biraogo vs. Philippine Truth Commission,
Supreme Court said suffice to say there will be no
appropriation but only an allotment or allocation of
existing funds already appropriated accordingly there is
no usurpation on the power of the Congress to
appropriate funds for the establishment of the Truth
Commission therefore there cannot be a violation of the
separation of powers.
Difference between control and supervision:
In control, the President can change the decision of the
subordinate. In the matter of supervision, the President
only oversees to make sure that the government official
performs his functions in accordance with law. He
cannot change the decision of the subordinate. That is
the difference, the President who is only supervision
over local governments.
Q: Who has control over local governments?
A: It is the congress through the Local Government
Code.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
But the President has only supervision over the local
government units therefore the President cannot change
the decisions of local governments.
ALTER-EGO DOCTRINE
TN: With respect to the secretaries or heads of the
executive branches of government, they are considered
as extensions of the office of the President. In other
words, the secretaries are considered as the alter-egos
of the President. The act of a Secretary is considered to
be the act of the President, unless it is reprobated,
repealed or disapproved by the President.
TN: There are certain functions of the President that
cannot be delegated to an alter ego
BAR: Limitations on the Delegation Power of the
President
Even if it is delegated by the President, or even if ratified
by him, the same act of the alter-ego is ineffective and
does not bind because such functions can only be acted
upon by the President, that cannot be delegated.
1) Immunity from Suit -can only be
enjoyed by the President
2) Power to declare Martial Law
This cannot be delegated to any
secretary of the President. Even if the
President declares it or ratifies it through
the Executive Secretary or Justice
Secretary, such is invalid.
3) Power to suspend of the privilege of
the writ of Habeas Corpus
4) The power to enter into treaties-
exclusive to the President and
cannot be delegated
5) The power to grant pardon
Case:
With constitutional parameters already established, we
may also note, as a source of suppletory guidance, the
provisions of R.A. No. 245. The afore-quoted Section 1
thereof empowers the Secretary of Finance with the
approval of the President and after consultation of the
Monetary Board, "to borrow from time to time on the
credit of the Republic of the Philippines such sum or
sums as in his judgment may be necessary, and to issue
therefor evidences of indebtedness of the Philippine
Government." Ineluctably then, while the President
wields the borrowing power it is the Secretary of Finance
who normally carries out its thrusts.|||(Spouses
Constantino v. Cuisia, G.R. No. 106064, October 13,
2005)
Section 18 POWER OF THE PRESIDENT AS THE
COMMANDER IN CHIEF OF THE AFP
Q: What are the calling-out powers of the President?
A: These are:
1. Declaration of Martial Law
2. Suspension of the Writ of Habeas Corpus
65
3. Review decisions of Court Marshalls
DECLARATION OF MARTIAL LAW
Q: When can the President call out the AFP to assist
him in the discharge of his functions?
A: Whenever it becomes necessary in order to prevent
or suppress lawless violence, invasion or rebellion
Q: Is it subject to judicial review?
A: NO.
Q: Is it subject to revocation by Congress?
A: NO. In fact, it is the most potent power that the
President may exercise as the Commander In Chief of
the AFP.
SUSPENSION OF THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS
Q: When?
A: When there is actual rebellion or invasion, when
public safety requires it. It is only effective for 60 days if
not extended or revoked by Congress, automatically, it
shall be lifted by operation of law after expiration of the
60-day period, reviewable by the SC under its exercise
of judicial review.
Q: Is this Remedy of revocation of judicial review
simultaneous or the choice of a person who may
question the factual basis of the declaration of ML or the
suspension of privilege of the writ of habeas corpus?
Would you go directly to the SC or should you wait until
after the Congress shall have decided whether to revoke
the declaration of Martial Law?
A: This is successive, not simultaneous. Precisely the
requirement of the President from the declaration of ML
or the suspension of the privilege of he writ of habeas
corpus to do a report within 48 hours. Immediately then,
the Congress will convene and will decide whether to
revoke it or not.
BAR:
Q: How many votes are needed to revoke it?
A: MAJORITY VOTING JOINTLY. The revocation of the
declaration of Martial Law or the suspension of the
privilege of the Writ of Habeas corpus is the only
instance where there is joint voting. Thereafter, if it is
not revoked, there is another option: To go to the
Supreme Court and ask for a judicial review.
***Remember that the Bill of Rights are not suspended,
therefore, you cannot be detained for more than 72
hours without being judicially charged. The right to bail is
still available if the offense charge is bailable.
In reality, as regards to the suspension of the priv writ of
habeas corpus, it will not be suspended for a period of
60 days with respect to the person arrested without a
warrant. The suspension of the privilege with respect to
a particular individual arrested without a warrant shall
last only for a period of three (3) days because if he is
not judicially charged, he should be released otherwise
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
you can demand for habeas corpus so that the court can
inquire to the legality of detention.
For a particular individual, whether it is a suspension of
the privilege of the Writ of Habeas Corpus, it is only for a
period of three (3) days that he cannot avail of the
privilege of the Writ of habeas corpus because the Court
has no jurisdiction due to the suspension.
LIMITATION: You should not be detained without being
judicially charged for more than 72 hours.
In effect, this suspension of the privilege of the writ of
habeas corpus merely extends the period of custodial
investigation without judicial interference because the
longest period under grave offenses that you can be
detained without the court interfering for a custodial
investigation is 36 hours only. When there is a
suspension of the privilege, it will be extended to 72
hours so However it is limited only to involving offenses
related to the declaration of ML or the suspension of the
privilege of the writ of habeas corpus. The offenses that
you may be charged have to relate to invasion or
rebellion. If there is no relation to those offenses, then
there is no effect on the suspension of the privilege of
the Writ of Habeas Corpus for ordinary offenses. The
court still has the jurisdiction to inquire into the legality of
detention.
POWERS OF THE PRESIDENT AS THE
COMMANDER-IN-CHIEF OF THE ARMED FORCES
OF THE PHILIPPINES
A. Calling out power
To call on the members or the AFP
Q: What is the purpose?
A: Whenever it becomes necessary, he may call out the
members of the Armed Forces to assist him in the
discharge of his functions in order to prevent or to
suppress lawless violence, rebellion or invasion
B. Declaration of Martial Law
C. Suspension of the Privilege of the Writ of Habeas
Corpus
D. Reviewing decisions of Court Martial
TN the difference between the calling out power of the
President and the declaration of martial law.
Q. Can this power be delegated to local chief
executives? A. That was the issue in the Kulayan case,
whether or not the governor of Maguindanao can also
call out the Armed Forces of the Philippines in order to
assist him in the suppression or prevention o lawless
violence or rebellion in his locality?
A. JAMAR KULAYAN VS. TAN, JULY 3, 2012
Where the SC said that the calling out power
contemplated under the constitution is exclusive to the
President of the Philippines as Commander-in-Chief,
that a provincial governor is not endowed with the power
to call upon the Armed Forces at his own bidding. It
66
ruled that only the President is authorized to exercise
emergency powers as provided under Section 23, Art. 6
and the calling out power under Section 7, Art. 7 of the
1987 Constitution. SC said that while the President
exercises full supervision and control over the police, a
local chief executive such as the governor only exercises
operational supervision over the police and may exercise
only a day to day operation. As discussed in the
deliberation of the Constitutional Commission only the
President has full discretion to call on the, military when
in his judgment it is necessary to do so in order to
prevent or suppress lawless violence,, invasion or
rebellion.
Q. How is it different from the declaration of martial law
and suspension of the privilege of the writ of habeas
corpus?
A. On the calling out, it is the discretion of the President,
unless there is abuse of discretion that cannot be
reviewed by the SC under the power of judicial review.
Likewise, the President is not obliged to report to
Congress if he exercised the power.
Unlike martial law or suspension of the privilege of the
writ of habeas corpus you will not that if the President
does that it must be for a particular ground or grounds:
1. Either there is rebellion or invasion
2. The public safety requires the declaration or the
suspension of the privilege of the writ of habeas
corpus
TN, should the President do that, he has to make a
report in writing within 48 hours and immediately
Congress must convene. That power of the President
then may be checked by Congress because if Congress
finds it baseless, meaning no factual basis to declare
martial law or suspends the privilege of the writ of
habeas corpus, Congress can always revoke it by a
MAJORITY VOTE in a joint session, voting jointly.
Q. If Congress failed to check the power of the
President, is there still a remedy to correct what has
been done by the President in so far as the declaration
of martial law or suspension of the privilege of the writ of
habeas corpus?
A. It can be brought up all the way to the SC under the
power of judicial review. Therefore, in the matter as to
whether or not the declaration of martial law or
suspension of the privilege of the writ of habeas corpus
is a justiciable question, it is settled that it is a justiciable
question.
Q. Who is a proper party to question the factual basis or
the validity of the declaration of martial law or he
suspension of the writ of the privilege of habeas corpus?
A. TN, that it can be raised by any citizen of the country.
He need not be the person directly injured. The
constitution expressly provides that any citizen can
question the factual basis of the declaration of martial
law or the suspension of the privilege of the writ of
habeas corpus.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Other limitations on the declaration of martial law or the
suspension of the privilege of the writ of habeas corpus:
Its only good for 60 days, meaning if not
extended by Congress, it shall automatically be
lifted after the lapse of 60 days from its
declaration
Secondly, If one is arrested without a warrant,
can he still avail of his right to bail? Answer is
YES, the only guarantee here that there will be
no judicial intervention within a period of 72
hours. If one is detained for more than 72 hours
already without being charged in court, then he
can always ask for habeas corpus. It is not
precluded, because the suspension of the
privilege of the writ of habeas corpus for a
particular individual who was arrested without a
warrant actually is effective only for 72 hours.
Although the effectivity of the suspension is
good for 60 days but for a particular individual it
should not last more than 3 days.or 72 hours
without being judicially charged. Once charged
and it is not bailable then you can be detained
until your case is terminated.
PARDONING POWER OF THE PRESIDENT (Art. 19)
******
If you can recall, Estrada was convicted after 6 years of
prosecution, spending millions of money. After he was
convicted, what happened? He filed a motion of
reconsideration and even before that was resolved by
the court, Arroyo offered pardon to him. He didnt ask for
it, it was offered to him through Secretary Puno and he
accepted the pardon that was offered to him and it was
not clear whether it was absolute or conditional.
Apparently, if it is not clear whether he was absolutely
extended with pardon, what would be the consequence
because this is now an issue as against Estrada. If you
are convicted and you are granted pardon, you may be
relieved only of the effects of further infliction of the
punishment. So if you were detained and granted
pardon, you will be released without fully serving the
sentence. But remember if convicted, there are
accessory penalties.
Q. What are the accessory penalties?
A. It could be perpetual public disqualification and thats
the question on Estrada. The point there here guys is
you have to take note of this power of the president
because it might be an issue when you take the bar
examination next year. I suppose there is a pending
complaint already filed in the Supreme Court
disqualifying Estrada as mayor of Manila because of his
previous conviction. They believed that it was never
erased that conviction. That conviction did not at all
affect his public disqualification as the pardon granted
to him was silent as to whether or not he was restored to
his civil or political rights.
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Always remember that this power is vested in the
President. It is a full discretionary power of the President
This power is one of the powers that cannot be
delegated to an alter ego. This is exclusive to the
president.
Q. What are the different kinds of pardon that may be
granted by the President?
A.
1. Pardon
2. Amnesty
3. Commutation
4. Reprieves
5. Remission of fines and forfeiture
Comparing Pardon and Amnesty
Pardon, usually is granted by the President to persons
convicted by final judgment for ordinary offenses. Take
note of the conditions, ha. Here the accused is already
convicted and the conviction is already final and
executory and he is granted pardon by the President.
Q. What will be the effect if granted pardon?
A. It depends. There are two kinds of pardon that may
be granted:
1. Absolute
If it is absolute, there is no need of acceptance
by the pardonee. Whether he likes it or not, he
will be granted the pardon and enjoy the benefits
of the grant.
2. Conditional
If it is conditional, it has to be accepted because
it might be more burdensome to accept it. They
would rather continue with the service of the
sentence and stay free board and lodging in the
Bilibid rather than going out of the prison.
Sometimes, they will not accept because there
are certain conditions that they need to comply
before they will be granted pardon.
Now, as I was saying earlier , pardon has to be
final. There has to be a conviction, and it must
be final, so that if you have still a pending
appeal, you cannot be granted pardon by the
President.
Q. What would be then effect if granted pardon
assuming that you are convicted, the judgment of
conviction has become final , you accepted the grant of
pardon. What would be the effect?
A. The effect would be, that you would be relieved of
further infliction of the punishment. Say for example your
sentence is 20 years of imprisonment. After 1 year of
serving without appealing the judgment you were
granted pardon.
Q. Do you need to serve the 19 more years ?
A. The answer is NO, once granted pardon. In other
words that further infliction of punishment is removed
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
because of the grant of pardon. If convicted there is the
accessory penalty.
Q. What is the accessory penalty? You have public
disqualification, not only that, you will be deprived of
your civil rights like for example, parental authority over
your minor children, or your authority over your wife, you
would also be denied of that right over your wife ,
administration over your conjugal properties thats one
among what we call civil interdiction.
Public disqualification for office is either for appointive or
elective public positions. As a consequence of
disqualification from public office, you cannot run for
public office anymore or you cannot anymore be
appointed to any office of government. You cannot also
be reinstated to any public office.
Q: Now then, if for example, you already fully served
your sentence, is pardon still relevant to you? You have
served your sentence for 20 years and thereafter you
were granted pardon. Is that still important?
A: Yes. For purposes of removing the accessory
penalties such as public disqualification or civil
interdiction. If pardon is granted, it may restore your civil
and political rights.
Let us apply this to the case of Erap Estrada. Erap
Estrada was convicted of plunder. That was only after
six years that he was convicted and millions of pesos
were spent by the government to arrive at his conviction.
It took so long, only to be granted pardon by Arroyo only
a few months or weeks after his conviction. In the
meantime, he filed a Motion for Reconsideration and
then he accepted the pardon granted on Arroyo. There
was no resolution on that Motion for Reconsideration.
Q: Was the conviction final or still pending, given that the
Motion for Reconsideration was not resolved? Was the
MR mooted by the grant of pardon?
A: The theory here is that Arroyo may have abused her
discretion amounting to lack or excess of jurisdiction.
The grant of the pardon was null and void. One can still
question it anytime or any stage before the Supreme
Court.
The things that they were pointing out questioning the
grant of pardon to Estrada are:
The things that they were pointing out questioning
the grant of pardon to Estrada was that the
judgment was not yet final when the pardon was
granted due to the pending MR.
Arroyo abused here discretion amounting to lack or
excess of jurisdiction because she granted the
pardon to Estrada without any qualification
considering the number of years and the amount
spent to arrive at Estrada's conviction.
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Hopefully, that would be laid to rest with the SC with this
pending complaint filed for the disqualification of
Estrada, questioning the validity of the pardon given by
Arroyo to Estrada.
Q: Is this pardon, if granted, subject to Judicial Review
by the SC?
A: Generally, NO. Pardon is subject to the full
discretionary power of the President. It is final and
executory unless there is an allegation of abuse of
discretion amounting to lack or excess of jurisdiction.
That is now their assertion as to the pardon given by
Arroyo to Estrada.
TN that NOT ALL cases may be subject of pardon.
EXCEPTIONS:
Impeachment
Convicted of election offenses - you cannot
be granted pardon unless there is a
favorable recommendation form the
COMELEC
If cited in contempt by the Congress
pursuant to a Legislative Inquiry
If cited in contempt by Civil Courts
AMNESTY
TN that this is not under the sole discretion by the
President. This is subject to the favorable
recommendation of the Congress.
TN that this can only be granted to individuals or class of
persons who are charged with offenses of political
nature.
This can be granted even before conviction. So this
particular power of the President may be availed of
before or after the conviction. You need not wait for the
final conviction of the person granted amnesty.
Q: If granted, what will happen?
A: It would be as if he never committed the crime. There
is total absolute exculpation and exoneration from the
criminal culpability.
TN of the concurrence of the Congress to the grant of
amnesty. There has to be a law where there is the grant
of amnesty.
Q: What are powers similar to the pardoning power of
the President?
A:
Commutation - reduction of the penalty by one
degree lower
Reprieve - postponement of the execution of
judgment
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Remission or Cancellation of Fines and
Forfeiture.
The president may also grant pardon to persons who are
convicted in administrative cases for the purpose of
reinstating him in his office. However, there is one
exception that the president cannot grant pardon in
administrative cases. That is when the administrative
case involves judges and other court personnel. They
cannot be granted pardon by the president. Amnesty
may be granted by the Supreme Court but not by the
President.
TN/Q: Parole if granted, what would be the effect?
A: You are still in custody of the law but outside of jail.
You are continuing to serve your sentence BUT you
continue serving it outside of jail.
Probation - granted to those who have been convicted in
cases where the penalty is less than 6 years of
imprisonment but it is not up to the President to grant
probation, rather, it is the courts who grant probation.
Article VII, Section 20:
The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines
with the prior concurrence of the Monetary Board,
and subject to such limitations as may be provided by
law.
BAR: This was asked in the Bar Examination on
guaranteeing of foreign loans in behalf of the Republic of
the Philippines. This may be delegated to the chairman
of the Bangko Sentral. TN that this does not need the
concurrence of the Senate. All that is needed here is the
concurrence of the Central Monetary Authority (BSP).
Article VII, Section 21:
No treaty or international agreement shall
be valid and effective unless concurred in
by at least two-thirds of all the Members
of the Senate.
TN: You must note the difference between an Executive
Agreement and International Agreement/Treaty.
International Agreement/Treaty - requires
concurrence by 2/3 vote of the members of the
Senate in order to validate it. The one who ratifies
the treaty is the President but to bind the public,
there must be the 2/3 vote of the Senate.
Executive Agreement - does not need the
concurrence of the Senate.
69
Q: So what they're doing in the DFA is that they are
making the Visiting Forces Agreement which
implements the RP-US Mutual Defense
Agreement into a simple Executive Agreement. The
RP-US Mutual Defense Agreement is the one that
requires the concurrence of the Senate but not the
VFA. What is the difference?
A: Usually, a treaty or international agreement
affects political or national issues that are more or
less permanent. Executive agreements only
provide for details, transitory, implementing
international agreements which is why it does not
need Senate concurrence.
There is an issue related to this because of the
impending establishment of military bases, whether
temporary or permanent by the US forces in Subic
Olonggapo while we still have this ongoing conflict
with China. They are trying to amend the VFA in
order to allow them entry into the country with their
arms (the US).
TN that those cases like Bayan v Exec. Secretary,
and that case of Smith - we will tackle that in our
discussion on transitory provisions.
TN of the power of the President in his participation
in treaty-making. It is the sole power of the
President to ratify a treaty. Not even the SC can
compel the President to submit a treaty to the
Senate for concurrence. (Pimentel vs Exec.
Secretary)
In other words, if the President refuses to submit
the treaty to the Senate for concurrence, the
President cannot be compelled to submit the treaty
to the Senate. The Senate, even if they concur to
the treaty, if the President refuses to ratify the
treaty, the Senate cannot compel the President to
do so because the matter of ratification of a treaty
is up to the sole discretionary power of the
President.
Q: What other powers does the President have?
A:
Sec. 22 (Budget)
Section 22. The President shall submit to the
Congress, within thirty days from the opening of
every regular session as the basis of the general
appropriations bill, a budget of expenditures
and sources of financing, including receipts
from existing and proposed revenue measures
Section 23 (SONA)
Section 23. The President shall address the
Congress at the opening of its regular session.
He may also appear before it at any other time.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
The President will lay down his programs, what he
has achieved, WON he has already complied with
his promise. That is part of the transparency of the
government.
If you will be asked to cite provisions of the
Constitution which promotes transparency, one of
those would be under Section 23 on SONA of the
President. This is usually the time that he appears
before the Congress to address the Congress,
although he may appear any time he wants to
appear.
V. Judicial Department
The Judicial Department is vested with judicial
power.
Q: What does judicial power mean?
A: The ordinary meaning of judicial power is the
power to settle disputes among parties involving
rights that are legally demandable or enforceable;
simply settling conflicts and controversies.
However, there is the expanded judicial power. The
courts can now determine whether there exists a
grave abuse of discretion, amounting to lack or
excess of jurisdiction. This is done by the courts via
judicial review.
Q:Where is this power vested?
A: It is vested in one Supreme Court and other
such courts as may be established by statutes i.e.
Statutory Courts.
Q: Who exercises judicial power?
A: It is exercised, not only be the Supreme Court,
but also by the lower courts.
Q: Cite provisions in the Constitution which
supports the principle that judicial review is not only
exercised by the Supreme Court but also by all
other courts.
A:
Section 1 - It is vested in the SC and the other
statutory courts.
Section 5 - relating to the review power of the SC of
the session of the lower courts as to the
constitutionality of laws, treaties, etc. What will the
SC review if the courts do not also exercise the
power in reviewing WON a law or an act is in
consonance of the Constitution?
These two legal provisions arrive at the conclusion
that even lower courts exercise judicial review.
However, the difference between the SC's judicial
review power and that of the lower courts is that the
lower court's reviews are not final because they are
70
still subject to review by the Supreme Court which
means that it can be reversed by the SC. What will
bind the whole country or the world insofar as the
decision of the court is concerned is the prevailing
principle or jurisprudence is always the deicison of
the SC, and not the lower court.
Another point is that, while this is a power enjoyed
be the lower courts, it must be exercised by the
lower courts with utmost prudence and caution
because it may cause political unrest resulting from
different interpretations of the laws and the
Constitution.
Q: You must also master Judicial Review. What are
the requisites?
A: There must be an actual case or controversy
raised by the proper party at the earliest
opportunity of time
The issue of constitutionality must be the lis mota
of the case.
Q: Who is the proper party?
A: One who is directly injured or in the imminent
danger of sustaining injury.
Q: In the ratification of the Constitution as to its
validity, who is the proper party?
A: An ordinary citizen may be the proper party,
even if not directly injured. This is an exception.
Q: What about the factual basis of the declaration
of Martial Law? Who is the proper party?
A: Also an ordinary citizen may be a proper party.
Q: When is the taxpayer considered a proper
party?
A:
When it involves disbursement of public funds
that is anomalous or contrary to law;
misapplication of public funds
Involves imposition of unreasonable taxes. This
amounts to deprivation of property without due
process of law.
Q: Who else can be a proper party? Can the
government be a proper party in relation to the
validity of its laws?
A: Yes. Case in point - People vs Vera.
Q: What about members of Congress, may they be
a proper party in a question involving the validity of
laws?
A: Yes. When they will intrude into the legislative
prerogative or impairs their discretionary powers, in
which case they can be a proper party.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
The bottomline, regardless of whether you have an
actual interest in the outcome of the case is what
we call legal standing or locus standi. That's all that
you need. You dont need to have a real right on the
outcome of the case. For as long as you have the
legal standing, you can be a proper party.
However, all this can be set aside by the Supreme
Court at its discretion when the issue raised is of
paramount public interest or of transcendental
importance. Take note of this since this is common
in the bar exams.
In all questions regarding constitutionality, you will
observe the PDAF cases, the RH law, when there
was a question on constitutionality of these laws,
there was always a question on whether the party
who filed the case was a proper party. So, the
requirement of the proper party may be set aside
as a mere procedural technicality if the issue raised
is of transcendental importance or of paramount
public interest.
Q:And then there's the requirement of actual case
or controversy. What does this mean?
A: That by "actual case", it means that the case is
existing until the issue is resolved because it is
possible that the controversy is existing at the time
of filing but becomes moot and academic as the
time lapses or as the circumstances change, in
which case it will be dismissed because the case
has become moot and academic.
In the case of Pormento vs Estrada.
Since Estrada was not elected as president, that
was the change in circumstance. It may have been
relevant at the time of filing of his Certificate of
Candidacy for President since he was running for
presidency notwithstanding the fact that he already
served the six-year term as President where the
Constitution provides that he is no longer eligible
for another election. Instead of discussing the
minutes of the case on the constitutionality, the SC
said that the case is already moot and academic
since Estrada lost the election and thereafter
dismissed the case. I repeat, the controversy must
be existing.
But even if the issue has become moot and academic,
according to the SC in the case of David et. al. vs. Exec.
Sec.,it is not a mathematical formula that the SC would
not just discuss on the merits because it is possible that
it may occur again in the future especially when there is
blatant violation of the constitution and the issue raised
is of transcendental importance or of paramount public
interest. If you can recall in the case of the
constitutionality of the declaration of a state of national
emergency, the SC was saying that even if it was lifted
and the issue therefore has become moot and
academic, nonetheless the SC proceeded in discussing
the merits of the case because there is always a
possibility that it will recur, it will be repeated in the future
71
and yet it will evade any discussion or resolution on the
merits of the case.
So these are the requisites:
There has to be a blatant violation of the constitution and
a possibility that it will be repeated and yet it will evade
any resolution.
And finally, that the issue raised is of transcendental
importance or of paramount public interest.
(TN) Another point on actual case and controversy, that
it must be a justiciable question. In other words, it is only
involving questions that are based on a law or a
constitutional provision because if you go into the
wisdom of the act complained of, or the reason why the
law was passed, or its propriety, that is a political
question beyond the ambit of judicial inquiry, therefore
should have been answered by makers of the law
themselves being the representatives of the people, or
the president himself who implements the law. But there
is an exception to this again because even if the issue is
political however there is allegation of grave abuse of
discretion amounting to lack or in excess of jurisdiction,
still the court may look into it by way of exception as part
of the expanded jurisdiction of the SC.
(TN) Another point also, it must be raised at the earliest
opportunity of time.
Q: What is earliest opportunity of time?
A: You have to allege that in the pleading otherwise, if
not alleged, you may not be allowed to raise that for the
first time during the trial, or if it is not raised during the
trial, you may not be allowed to raise that for the first
time on appeal.
Exceptions:
1. When the issue raised is the jurisdiction-
anytime at any stage of the proceeding
2. When you cannot resolve the case without first
settling the issue of constitutionality in civil cases
3. In criminal cases- anytime because after all,
where there is no law punishing the act, no
crime is committed. So if the law is nullified, it is
as if theres no crime committed by the accused.
(TN) And finally, the issue raised must be the lis mota of
the case because if it is not, then the court by all means
must use other grounds to dispose of the issue without
going into the merits of the case in order to maintain the
equality among the 3 branches and maintain the
separation of powers so that one cannot be accused of
intruding into the prerogative of the 2 other branches of
the government.
So you take note of those requisites for a valid exercise
of judicial review because they are repeated in the
subsequent and more recent decisions of the SC.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Q: What would then be the consequences after the
resolution of the case?
A: It depends on what the resolution is.
Q: If the law is valid, what would SC do?
A: Make a double negative declaration- that the law is
not unconstitutional. In effect legitimating, if not ratifying
the validity of the law.
Or the SC will declare the law to be null and void for
being unconstitutional. By that act, through the exercise
of judicial review, the SC checks. Thats part of the
checking power of the court over the act of executive
and legislative departments. Either way, the SC will
perform its symbolic function to educate the bench and
the bar by providing principles, precepts, guidelines on
how the law should be construed or interpreted in actual
cases.
Q: (BAR) If the law is declared unconstitutional, what
would be the effect of the declaration of
unconstitutionality?
A: What we follow is the modern view.
Q: What does it mean?
A: It is valid until declared null and void for being
unconstitutional but you have to respect the operative
effects of this law before the declaration of nullity.
We have some case on this where SC does not disturb
the effect of the application of the law before the law is
declared unconstitutional. They must be respected.
Once declared a nullity, you follow the traditional view. It
is not a law, it creates no rights, imposes no obligations,
creates no office and affords no protection. It will be as if
the law has never been passed. Just take note of that
operative effect principle. Because that was asked in the
bar exam particularly in the MCQ.
As regards to that, read the cases of Dulay vs. JBC,
Chavez vs. JBC.
In checkered contrast, there is essentially no
interaction between the two Houses in their
participation in the JBC. No mechanism is required
between the Senate and the House of Representatives
in the screening and nomination of judicial officers.
Rather, in the creation of the JBC, the Framers arrived at
a unique system by adding to the four (4) regular
members, three (3) representatives from the major
branches of government the Chief Justice as ex-
officio Chairman (representing the Judicial Department),
the Secretary of Justice (representing the Executive
Department), and a representative of the Congress
(representing the Legislative Department).
The total is seven (7), not eight. In so providing, the
Framers simply gave recognition to the Legislature, not
because it was in the interest of a certain constituency,
but in reverence to it as a major branch of
government.(Chavez v. Judicial and Bar Council, G.R.
No. 202242, April 16, 2013)
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However, the Supreme Court has provided some
guidance regarding the issues we have raised. In the en
banc decision in Dulay vs. Judicial and Bar Council and
Executive Secretary Paquito Ochoa, the Supreme Court
made two significant rulings. First, the court ruled that
the most senior justice who is not an applicant for the
position of chief justice shall "preside over the
proceedings in the absence of the said constitutionally
named Ex-Officio Chairman." Second, the proposition
that the JBC may only be chaired by the incumbent chief
justice is without merit. http://jurist.org/sidebar/2012/07/
On Section 2, this is with reference to the powers
being vested to the courts by congress
So you have the Rules of Court enumerating the
jurisdiction of court. But take note, in so far as amending
the Rules of Court, that is now exclusive to the SC under
Section 5 as part of its rule-making power. But, in the
case of Gingoyon v. Republic, the SC was saying that
notwithstanding that the SC has the power to amend the
Rules of Court, still the power being legislative in nature,
plenary in so far as congress is concerned, it was never
precluded from making a law that will amend Rules of
Court. You remember that case involving payment of just
compensation? Because there is definition there in the
Rules of Court particularly Rule 67 on just compensation
determined by the court at 10% of the assessed value of
the property for taxation purposes, that was amended by
R.A. 8974 passed by congress where it was based on
market value or BIR zonal valuation- 100% and not just
10% and it was an amendment of Rules of Court and it
was questioned, and SC was saying that the congress
was never precluded from amending Rules of Court
although now, that power is govern to the SC
promulgating rules governing pleadings and procedures
in the practice of law. You have writ of amparo, writ of
habeas data, and writ of kalikasan. You have the judicial
affidavit rule, etc. in effect amending the Rules of Court
without passing through congress although in Section 2,
it should have been congress because it is congress that
vested and prescribed and apportioned jurisdiction on
various courts.
On Section 3 on fiscal autonomy
it is one of the factors that maintain the independence of
SC and there had been so many instances that this
fiscal autonomy has been challenged by the 2 other
branches in the government.
Q: What do you mean by fiscal autonomy?
A: It means that their budget cannot be reduced by
congress even if they hate the guts of the justices of the
SC. Whatever is the budget in the last fiscal year, if they
will not increase it, they cannot also reduce it. Should
they reduce the budget, automatically the old budget will
be adopted because of fiscal autonomy. They cannot
interfere on how the SC should spend the money
appropriated for the SC but recently there is a question
regarding on this because there are so many vacancies
in the court. At the end of the year, youre supposed to
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
remit kuno the money that was expended, intended for
this vacant court to the national treasury. But what did
SC do? Asserting its fiscal autonomy, they put up a
separate fund where this savings will go and not to the
general fund of the national treasury and thats the start
of the quarrel between the executive department,
including now the congress, and the SC because the SC
was saying, we enjoy fiscal autonomy, ayaw mo
panghilabot in so far as our budget is concerned. Karon
ka, what theyre doing now, ang DBM will not release the
whole budget for the Judiciary. They will wait until you fill
up that vacancy then they will release the money. That
will be the challenge regarding fiscal autonomy.
On section 4, this is with regard to the composition of the
SC. There is 1 chief justice and 14 associate justices.
Q: In case of vacancy, what is the period of filling up?
A: 90 days from the occurrence of the vacancy.
Q: For vacancy in the lower courts, how should it be
filled up?
A: Its actually 90 days from the submission of the list of
names of nominees of JBC reckoned from the
submission. So it may have been vacant for 20 years,
but the moment the list is submitted by JBC to
Malacaang, the President has the period of 90 days
from the submission of the list within which to make an
appointment. But how come it can go beyond 90 days?
Because it can easily retroact the date of appointment.
*** Q: What are the cases that are decided by SC sitting
en banc and sitting in Division? The more important part
there is the sitting en banc. What are the cases?
A: You have to memorize Section 4 on cases involving
constitutionality of treaty or international agreement or
executive agreement; cases that had been decided by a
Division and case of modification or reversal; to reverse
a prevailing principle or jurisprudence; dismissal or fine
of a judge or any court personnel for more than 10,000;
when the Division cannot obtain the majority, it has to be
transferred to SC siting en banc; where the penalty for
the capital offenses Reclusion Perpetua to death.
Q: What would be the composition of a Division?
A: It could be a Division of three, five, or eight. So if you
want to get a majority for very decision, a Division of 3-
always 3, unanimous. If you cannot get that it will be
decided by SC sitting en banc. If its a Division of 5- you
should have no less than 3. In the Division of 8- that is 5.
You should have also at least 3 votes if there is only
quorum of 5.
Practically most of the cases are decided in division but
there are specific cases however that must be decided
en banc. You take note of that.
*** Now the most import part of the judicial department-
Section 5. If you want to know all the powers of
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SC, memorize section 5.
SECTION 5. The Supreme Court shall have
the following powers:
(1) Exercise original jurisdiction over
cases affecting ambassadors, other public
ministers and consuls, and over petitions
for certiorari, prohibition,mandamus, quo
warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or
affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the
constitutionality or validity of any treaty,
international or executive agreement, law,
presidential decree, proclamation, order,
instruction, ordinance, or regulation is in
question.
(b) All cases involving the legality of any
tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of
any lower court is in issue.
(d) All criminal cases in which the
penalty imposed is reclusion perpetua or
higher.
(e) All cases in which only an error or
question of law is involved.
(3) Assign temporarily judges of lower
courts to other stations as public interest
may require. Such temporary assignment
shall not exceed six months without the
consent of the judge concerned.
(4) Order a change of venue or place of
trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the
protection and enforcement of
constitutional rights, pleading, practice, and
procedure in all courts, the admission to the
practice of law, the Integrated Bar, and
legal assistance to the underprivileged.
Such rules shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases, shall be uniform for all
courts of the same grade, and shall not
diminish, increase, or modify substantive
rights. Rules of procedure of special courts
and quasi-judicial bodies shall remain
effective unless disapproved by the
Supreme Court.
(6) Appoint all officials and employees of
the Judiciary in accordance with the Civil
Service Law.(1987 Constitution [1987])
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Q: In criminal cases where the penalty imposed
is reclusion perpetua, is that automatic reviews
of SC?
A: There is now a circular of SC. It is no longer
automatic to sc. It must pass through an intermediate
review by the CA before it goes to the SC. And that is
declared as constitutional.
You have on purely questions of law, also with the SC.
The temporary assignment of judges. If its for more than
6 months, you need the consent of the judge.
On the change of venue, also you must ask permission
from SC. In case of doubt whether it should be granted
or not, it should be decided in favor of the change of
venue to avoid miscarriage of justice.
(BAR) Sec 5(5) on the rule-making power of the SC
Rules concerning enforcement and protection of
constitutional right, pleading, practice and procedure in
all courts; admission in the practice of law; the Integrated
Bar; legal assistance to the underprivileged.
(BAR) As regards to the protection and enforcement of
constitutional rights, take note of the writs promulgated
by SC: writ of amparao, writ of habeas data, writ of
Kalikasan and other rules and regulation amending the
Rules of Court.
Kadagahan na nigawas ang writ of amparo ug writ of
habeas data. Theyre related to each other but they re
not the same.
Q: All this in protection of the right to privacy particularly
the writ of amparo, what is being protected?
A: Right to life, liberty and security, not property. The
recent decision on the writ of amparo is this: that to
apply the writ of amparo there must be an element of
government involvement. If there is no government
involvement, although it may also apply to private
entities, but without government involvement, the writ of
amparo is not the proper remedy. Thats the bottom line
on the recent decision of SC.
To give you an example, this is a case involving a
person who was abducted by a security guard of a
subdivision. Then he made a complaint to the security
guard, it was not acted upon. And then that person
became missing. So the relatives of this person who was
abducted accused the security guard and filed a writ of
amparo.
Q: Will the action prosper?
A: According to the SC, no because the security guards
are private individuals. No showing that it involves the
government or its law enforcers. Here it was dismissed.
Q: (TN) What are the remedial or preliminary remedies
you may avail of while you are applying for writ amparo?
A:
74
1. temporary protection order
2. inspection order
3. production order
4. witness protection order
You have also the Writ of Habeas data which is a
limitation to the right of information. It is a remedy
available to any person whose right to privacy in life
liberty or security is violated or threatened by an unlawful
act or omission of a public official or employee or a
private individual or entity engaging in the gathering,
collecting or storing of data or information regarding the
person, family home, correspondence of the aggrieved
party (A. M. No. 08-1-16-SC).
Q: If you think that because of some erroneous
information the military is following you because you are
suspected to be a member of the NPA. What do you do?
A: You ask the military to produce the information so
that it can be corrected or destroyed if it is totally untrue.
You can avail of that by obtaining a writ of habeas data.-
TN
On the power of the Supreme Court to promulgate rules
the only limitation in the promulgation of rules by the
Supreme Court is that it shall not diminish, increase or
modify substantive rights (Sec. 5(5), Art. XVIII,
Constitution).
Power to Appoint
Also, the Supreme Court has the power to appoint its
own officials and employees in accordance with the Civil
Service Law (Sec. 5(6), Art. XVIII, Constitution). This is
to maintain its independence subject to civil service law.
The Supreme Court shall have administrative
supervision over all courts and the personnel
thereof (Sec. 6, Art. VIII).
The administrative supervision of the Supreme Court
over judges and court personnel is exclusive. The
Ombudsman does not have jurisdiction over judges and
court personnel because the supervision over them is
exclusive to the Supreme Court.
Q: Can the ombudsman investigate a judge involving a
criminal case?
A: The Ombudsman has to wait for the recommendation
of the Supreme Court to conduct the preliminary
investigation.
Q: In an administrative case?
A: It should be dismissed because the Ombudsman has
no jurisdiction since the Constitution provides that
supervision of judges and court personnel is exclusive to
the Supreme Court. In fact, the President cannot grant
pardon to a judge or court personnel who is convicted.
TN
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Section 7. Qualifications.
No person shall be appointed Member of the
Supreme Court or any lower collegiate court
unless he is a natural-born citizen of the
Philippines. A Member of the Supreme Court
must be at least forty years of age, and must have
been for fifteen years or more, a judge of a lower
court or engaged in the practice of law in the
Philippines.
The Congress shall prescribe the qualifications of
judges of lower courts, but no person may be
appointed judge thereof unless he is a citizen of
the Philippines and a member of the Philippine
Bar.
A Member of the Judiciary must be a person of
proven competence, integrity, probity, and
independence. - TN
Q: What is the qualification for a member of the judiciary
that is not required in ordinary employees in the
government?
A: He must be a person of proven competence, integrity
and independence. (BAR)
(BAR) Section 8. Composition of the Judicial and
Bar Council
A Judicial and Bar Council is hereby created
under the supervision of the Supreme Court
composed of the Chief Justice as ex officio
Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio
Members, a representative of the Integrated
Bar, a professor of law, a retired Member of
the Supreme Court, and a representative of
the private sector.
The regular members of the Council shall be
appointed by the President for a term of four
years with the consent of the Commission on
Appointments. Of the Members first
appointed, the representative of the
Integrated Bar shall serve for four years, the
professor of law for three years, the retired
Justice for two years, and the representative
of the private sector for one year.
XXX XXX XXX
XXX XXX XXX
The Council shall have the principal function
of recommending appointees to the judiciary.
It may exercise such other functions and
duties as the Supreme Court may assign to it.
75
Q: What would the President do if he does not like any
of the nominees in the list? Can he return it to the JBC?
A: No. He has to choose from the list. Otherwise, the
purpose of the JBC to screen applicants for the judiciary,
ombudsman and deputy ombudsman would be useless.
However, the nominees in the list should be at least 3 for
every vacancy. The Presidents choice should be limited
only in the names that were submitted by the JBC.
The Composition of the JBC is shared by the Justice of
the Supreme Court. Now, there is a controversy
involving the Chief Justice as chairman of the JBC
because the SOLGEN applied for the Supreme Court as
Justice. Now, he wants the Chief Justice to inhibit in
participating because according to him the Chief Justice
had already made statements against him. The thing is it
is chaired by the Chief Justice of the Supreme Court.
TN
It is also composed of ex-officio members and regular
members. In Chavez v. JBC, there is a controversy
because supposedly each branch of the government
should be represented in the JBC. For the executive
department, it is the DOJ secretary. For Congress they
must also have a representative. But Congress have two
(2) representatives, 1 in the Senate and 1 in the House
of Representatives while the Constitution is very clear
that it should only be A REPRESENTATIVE- singular.
Back then, it was alright to have two representatives for
Congress because each representative will be entitled to
vote. But in has been the practice to accord each
representative 1 full vote. Thus, it is unfair on the part of
the other branches of the government and there is no
more equality among the three branches of the
government.
Section 9. The Members of the Supreme Court and
judges of lower courts shall be appointed by the
President from a list of at least three nominees
preferred by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation.
(Self-Explanatory). The Salary of the justices and judges
is fixed by law.
Section 11 Retirement Age
The retirement age is 70 years old but we are given an
option to retire at 60 or 65.
The Supreme Court Justices enjoy security of tenure
which means that they cannot be removed in any other
manner except on impeachment.
Q: Can you sue a justice of the Supreme Court involving
a criminal case?
A: You cannot. Not even a disbarment case against
them because it is a circumvention of the Constitution.
You have to wait until they retire so you can sue them
criminally. But I suppose you can sue them for collection
of sum of money.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Section 12. The Members of the Supreme Court and
of other courts established by law shall not be
designated to any agency performing quasi-judicial
or administrative function.
In Macalintal v. PET, the Supreme Court acted as the
Presidential Electoral Tribunal (PET). There was a
question of constitutionality on the creation of the PET
because according to Macalintal by being a member of
PET, in effect, the Supreme Court performs a quasi-
judicial function. But the Supreme Court said that the
PET does not perform quasi-judicial functions but judicial
functions.
Q: What are the two exceptions of Section 12?
A: Justices of the Supreme Court appointed to the
Presidential Electoral Tribunal and the Chief Justice as
the chairman of the JBC.
Section 13 Procedure in the making Decisions.
There must be a deliberation either in en banc or
division. Usually, the decision is written by the most
junior Justice. There is a certification that will be made
by the Chief Justice to the effect that whatever decision
may have been reached is a result of consultation and
concurrence of the majority of the Supreme Court. If
there is no certification, it will not affect the validity of the
decision.
Section 14. SC Decisions
No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the
law on which it is based. This is mandatory. However,
the exception to this is cases on certiorari or petition for
review filed before the Supreme Court. The Supreme
Court can issue a 1 page minute resolution dismissing
the petition for lack of merit. This is an exception
because a petition for certiorari is not a matter of right. It
is merely a privilege. The Supreme Court has the
discretion either to give due course or not to the petition.
If the Supreme Court denies the petition, it is in effect
adopted the decision in toto of the lower court. However,
if the Supreme Court gives due course to the petition
and dismisses it thereafter the Supreme Court has to
comply now with Section 14. (BAR)
Section 15. Resolution of Cases.
This is mandatory because a judge can be sanctioned or
punished for non-observance of the prescribed period. It
is, however, directory in the sense that even if the
judgment is rendered beyond the prescribed period the
decision remains valid.
Cases relating to the Judiciary
1.CONSTITUTIONAL LAW; SUPREME COURT;
"RESOLUTIONS" ARE NOT "DECISIONS";
CONSTITUTIONAL MANDATE NOT APPLICABLE TO
RESOLUTIONS. As early as Novino, et
al. vs. Court of Appeals, et al., it has been stressed that
these "resolutions" are not "decisions" within the
76
constitutional requirements of Section 14, Article VIII;
they merely hold that the petition for review should not
be entertained and even ordinary lawyers have all this
time so understood it; and the petition to review the
decision of the Court of Appeals is not a matter of right
but of sound judicial discretion, hence there is no need
to fully explain the Court's denial since, for one thing, the
facts and the law are already mentioned in
the Court of Appeals' decision. This was reiterated
in Que vs. People, et al., and further clarified
in Munal vs. Commission on Audit, et al. that the
constitutional mandate is applicable only in cases
"submitted for decision," i.e., given due course and after
the filing of briefs or memoranda and/or other pleadings,
but not where the petition is refused due course, with the
resolution therefor stating the legal basis thereof. Thus,
when the Court, after deliberating on a petition and
subsequent pleadings, decides to deny due course to
the petition and states that the questions raised are
factual or there is no reversible error in the
respondent court's decision, there is sufficient
compliance with the constitutional
requirement.||| (Komatsu Industries (Phils.), Inc. v. Court
of Appeals, G.R. No. 127682, April 24, 1998) HDATCc
The grant of due course to a petition for review is not a
matter of right, but of sound judicial discretion. Thus,
when the Court denies due course to a petition because
it fails to show any reversible error committed by the
Court of Appeals (CA), there is no need to fully explain
the Court's denial. For one thing, the facts and law are
already discussed in the CA's opinion. A minute
resolution denying a petition for review of a decision of
the CA can only mean that the Supreme Court agrees
with or adopts the findings and conclusions of the CA,
and deems the CA decision as correct.
We reiterate that a "resolution" is not a "decision" within
the constitutional requirement of Section 14, Article VIII.
The constitutional mandate is applicable only in cases
"submitted for decision", i.e., where the petition is given
due course and after the filing of briefs or memoranda
and/or other pleadings, but not where the petition is
denied due course, with the resolution stating the legal
basis thereof.
In Candelaria v. CA, we held that a resolution denying a
petition for review on certiorari actually states the legal
basis therefor, which is that the petition failed to
sufficiently show that the appellate court committed any
reversible error in the challenged decision. The patent
significance of such ground for denial is that the
allegations of the petition aimed at proving errors in the
challenged decision failed to persuade the Supreme
Court that the imputed errors had been committed and,
thus, there was no cause to reverse or modify the
conclusions set forth in the decision. In such case, there
is no point in reproducing or restating in the resolution of
denial the conclusions of the appellate court thereby
affirmed.| (Joaquin-Agregado v. Yamat, G.R. No.
181107, March 30, 2009)
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
VI. Constitutional Commissions
On constitutional commissions, you have three:
COMELEC, Civil Service and Commission on Audit.
TN Safeguards to the Independence of the
Constitutional Commissions
1. First of all, theyre created by the Constitution
therefore they cannot be abolished by ordinary
legislation. Theyre considered to be independent, and
therefore cannot be controlled by the three branches of
government. Each constitutional commission is
conferred with powers that cannot be reduced or
diminished by ordinary legislation to maintain their
independence. Likewise, always remember that they are
removable only through impeachment.
TN of the term of office of the commissioners.
2. It is 7 years without re-appointment. We have the
scheme to have continuity in their term of office. We
have the staggered appointment the first appointment
to each commission 7, 5, 3 years.
It says without re-appointment. The term applies only to
regular appointments of a commissioner (TN). So that if
he is appointed in a recess session, so its by a recess
appointment such as that case of Benipayo, then-
chairman of the COMELEC before, during the time of
Arroyo. He was appointed when the Commission on
Appointments was in recess. And so it was a recess
appointment. The appointment though was permanent,
because it was effective immediately upon Qualification
of Benipayo, because it was not however confirmed by
CA upon its resumption of its session in effect it was
bypassed, so it lasted only until the next adjournment of
session of Congress. So when the term of Benipayo
then expired, he was again re-appointed by Arroyo to the
same position, thus the Question now on constitutionality
of the re-appointment. Remember the case of Matibag v.
Benipayo.
Q: What did SC say on the matter? Was there a violation
of the constitution by the re-appointment of Benipayo?
A: The SC was saying that: That provision against re-
appointment applies only to regular appointment by the
President that would reQuire confirmation by the CA
(TN).
Theres a recent decision of the SC related to it as well.
Remember the case of Funa, involving the appointment
of Villar as the Chairman of the Commission on Audit.
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.
Attention is drawn in this regard to the Court's
disposition in Matibag v. Benipayo.
77
Villar's promotional appointment, so it is argued,
is void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it
actually needed another appointment to a different office
and requiring another confirmation by
the Commission on Appointments.
Central to the adjudication of the instant petition
is the correct meaning to be given to Sec. 1 (2), Article
IX (D) of the Constitution on the ban against
reappointment in relation to the appointment issued to
respondent Villar to the position of COA Chairman.
Without question, the parties have presented
two (2) contrasting and conflicting positions. Petitioner
contends that Villar's appointment is proscribed by the
constitutional ban on reappointment under the aforecited
constitutional provision. On the other hand, respondent
Villar initially asserted that his appointment as COA
Chairman is valid up to February 2, 2015 pursuant to the
same provision.
The Court finds petitioner's position bereft of
merit. The flaw lies in regarding the word
"reappointment" as, in context, embracing any and all
species of appointment. XXX XXX
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.||| ||| (Funa
v. Villar, G.R. No. 192791, April 24, 2012)
Q: What were the circumstances in that appointment?
This also further explained the nature of the appointment
and the term of office of a commissioner because this
applies not only to COA but to all commissioners. In this
particular case, Villar had been appointed as a member
of the COA. However, he didnt finish his term he
resigned. And then, he was appointed thereafter as
chairman of COA, when the Chairman retired.
When the chairman retired and the question on wether
or not he is qualified for appointment, wherein it was
practically a re-appointment this time as chairman of
COA. The Supreme Court in this case said that for as
long as he did not finish his term, because he did not
finished as he resigned. He may be appointed to the
commission as chairman, provided, that there is a
vacancy caused by death or resignation or removal of
that previous chariman whose term has not been
completed. So that he can only be appointed and
assume office of the un-expired portion of the term of
office of his predecessor.
TN It says here, the appoinment of the members of any
of the 3 Constitutional Commissions after the expiration
of the un-even terms of office of the first set of the
commissioner will always be a fixed term of seven years.
An appopintment for a lesser period is void and
unconstitutional. The appointing officer cannot validly
shorten the full term of seven years in case of the
expiration of the term as this will result in the distortion of
the rotational system prescribed by the Constituion.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Q: What is this Rotational System of the Term of
Office of the commissioners? (BAR)
A: Where if one of the commissioners term of office
expires there will be always two others who are left.
There cannot be any vacancy that would occur in the
commission in the event one of the commissioners term
of office expires.
SC was saying here that appointments to vacancies
resulting from certain causes like death, resignation,
disability or impeachment shall only be for the unexpired
portion of the tem of office of the predecessors. Such
appointement cannot be less than the unexpired portion
as this will distrupt the staggering of the terms lay down
under SEC. 1 PAR. 2 of ART. IX. Members of the
commission are appointed for the full term of seven
years and who served the entire period are BARred
from re-appointemnt to any position in the commission.
The commissioner in this case, Villar, who resigned after
being in the commission for less than seven years is
eligible for appointment to the position of the Chair for
the unexpired portion of the term of the departing chair.
Such appoinment is not covered by the ban on re
appoinment provided the that the aggregate period of
length of service as commissoner in the unexpired
period of the term of office of the predecessor will not
exceed seven years and provided further, the vacancy
position of the chair resulted from death, resignation,
disablity or impeachment and any member of the
commission cannot be appointed or designated in
temporary or acting capacity. In this case, Villar served
for only 3 years so he has then remaining four years at
the time he resigned. Thereafter, he was appointed as
chairman of COA when the chairman of COA at that
time, also resigned.
Q: Was the appointment of Villar to the chairmanship
valid considering that it was a re-appoinment but this
time as chairman?
A: SC was saying that he is eligible provided that it will
not exceed seven years. So if he already served 3 years,
he has 4 more years to serve. In this case, the term of
the predecessor chairman, the remaining term was only
3 years also so he could not ecxeed the unexpired
portion of his predecessor. In other words, while he is
eligible for appoinment, his term should not ,in total,
what he had served before he resigned and now his new
appoinment be more than seven years. And should not
also exceed the term of the remaining portion of the term
of his predecessor. He can assume the unexpired but
not more than seven years. TN of that. Also being
empahized in this case that being appointed,
Q: Can there be appointment in acting or temporary
capacity?
A: No. It should be permanent. This is to guarantee the
independence of the Constitutional commissions.
Q: Can the salaries of the Chairmen and Commissioners
be decreased? Increased?
78
A: They are fixed by law and they cannot be decreased
during their term. May be increased but cannot be
decreased.
Q: How do the Constitutional Commissions enjoy fiscal
autonomy?
A: Their budget cannot be reduced lower than they are
presently enjoying. So that in the event that their budget
for the next fiscal year is reduced, automatically that is
void, automatically the budget of the previous year shall
be reenacted.
Q: Can the ConComs pass their own rules and
regulations? What are the limitations?
A: They also can promulgate their own rules and
regulations for as long as it will not diminish decrease or
modify substantive rights. This is without prejudice of
course to the Supreme Courts power to promulgate
rules and regulations governing pleadings and
procedures in court.
Q: In cases of conflict, whose rules should prevail?
A: There is this one case where the COMELEC
promulgated a rule governing their procedure, however,
affecting the rules promulgated by the SC governing
procedures in courts. So in cases of conflict, always the
rules promulgated by the SC shall prevail because that
is exclusive to the Supreme Court if this will affect
procedures in court.
Q: What rules govern in appointing the officials and
employees of ConComs?
A: It must be in accordance with the civil service law to
maintain their independence.
Q: How many votes are needed in decision making?
A: It has to be majority of all the members of the
commission.
TN: A commission that has only three commissioners,
always unanimous.
TN: For the COMELEC, we will have a majority of seven.
But in adjudicatory cases, when they decide the case on
merits, it is always decided by a division, so still
unanimous three.
Q: When a decision decided by a COMELEC division is
unfavorable, cann you go directly to the SC?
A: No. the Motion for Reconsideration must be decided
first by the COMELEC en banc because of the
requirement of the constitution that only decisions en
banc of the commissions can be appealed directly to the
SC. They are also required to decide cases within 60
days from the submission of the case for decision or
resolution.
Q: Where do you appeal the decisions of the
COMELEC, COA and the Civil Service?
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: Except for the Civil Service, COA and COMELEC
decisions are appealable directly to the SC on certiorari
under rule 65 of the Rules of Court and it should be
within 60 days from the receipt of decision of the
judgment of the tribunal.
CSC
Q: What about Civil Service Commission?
A: There is SC circular that you have to pass through CA
first before you go to the SC. That is under Rule 43 of
the ROC.
TN: Qualifications of the commissions.
There are only 3 - one chairman and two members. This
is important - Section 2, you should know the scope of
the Civil Service covered by its jurisdiction.
Q: What is within the jurisdiction of the Civil Service
Commission?
A: All branches, subdivisions, instrumentalities and
agencies of the Government, including government-
owned and controlled corporations with original charters
[Sec. 2(1), Art. IX-B,Constitution].
Q: What do you mean by original charters?
A: Original charter means that the GOCC was created
by a special law by congress.
Those without original charters are those created by the
corporation code, it is not under the Civil Service. They
are not subject to the Civil Service Commission. So they
are considered as an ordinary corporation.
As to the previously GOCCs, when they are later
privatized, they cease to be under the Civil Service.
TN of the cases regarding the scope of the Civil Service
Commission.
[BAR] TN Q: Are water districts under the Civil Service
Law?
A: Water districts are under the Civil Service.
TN: MWSS v. Hernandez, G.R. No. 71818, August 19,
1986if one is employed in a GOCC whether or not
regular, the Civil Service Law applies. So it is not true
either that with respect to money claims, the Labor Code
applies. In this case, since the employment or claim of
an employee in a GOCC with an original charter is
governed and covered by the Civil Service Law.
1.CONSTITUTIONAL LAW; CIVIL SERVICE LAW;
GOVERNS EMPLOYEES OF GOVERNMENT-OWNED
OR CONTROLLED CORPORATION. Republic Act
No. 6234created it as a "government corporation to be
known as the Metropolitan Waterworks and Sewerage
System." As in the case of the National Housing
Authority, therefore, employment in the MWSS is
governed not by the Labor Code but by the civil service
79
law, rules and regulations; and controversies arising
from or connected with that employment are not
cognizable by the National Labor Relations Commission.
2.ID.; ID.; ID.; INCLUDES CONTRACTUAL
EMPLOYEES OF GOVERNMENT-OWNED OR
CONTROLLED CORPORATION. The argument of
the Labor Arbiter that it is only disputes between
the MWSS and its regular employees that are beyond
the jurisdiction of the NLRC, not those between it and its
"non-regular or contractual" employees, is sophistical.
There is no legal or logical justification for such a
distinction. Indeed, it is ruled out by the fact that
positions in the civil service are classified
into career and non-career service, and that the non-
career service includes inter alia ". . . Contractual
personnel or those whose employment in the
government is in accordance with a special contract to
undertake a specific work or job, requiring special of
technical skills not available in the employing agency, to
be accomplished within a specific period, which in no
case shall exceed one year, and performs or
accomplishes the specific work of job, under his own
responsibility with a minimum of direction and
supervision from the hiring agency."
||| (MWSS v. Hernandez, G.R. No. 71818, August 19,
1986)
Question [student]: Who determines if it is a GOCC?
A: It is governed by the law that created it. It is in the
law.
So if it is created by a special law or charter, it is a
GOCC. So even if created by a general law, it is covered
by the Corporation Code, that is not under the civil
service law. You would note that it is in the charter itself.
Question by Luj (regarding Red Cross)
A: It is a private corporation. It renders only public
service. That is not under civil service. That was the
case of Liban v. Gordon. The most recent one, the
Supreme Court said, it is private. It is only that they
render public service. It is not part of the Government of
the Philippines, not a corporation of the Philippines.
That was settled. [Judge was talking about the 2009
case, theres a recent 2011 resolution on this case]
[Based on the above, the sui generis status of the PNRC
is now sufficiently established. Although it is neither a
subdivision, agency, or instrumentality of the
government, nor a government-owned or -controlled
corporation or a subsidiary thereof, as succinctly
explained in the Decision of July 15, 2009, so much so
that respondent, under the Decision, was correctly
allowed to hold his position as Chairman thereof
concurrently while he served as a Senator, such a
conclusion does not ipso facto imply that the PNRC is a
"private corporation" within the contemplation of the
provision of the Constitution, that must be organized
under the Corporation Code. As correctly mentioned by
Justice Roberto A. Abad, the sui generis character of
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
PNRC requires us to approach controversies involving
the PNRC on a case-to-case basis.||| (Liban v. Gordon,
G.R. No. 175352, January 18, 2011) Caveat: It was not
discussed in the case the implications on the jurisdiction
of employment disputes with such pronouncement as sui
generis corporation]
TN: The different kinds of positions in Civil Service. The
Competitive and Non-Competitive. So this is relevant
also when you are ask about administrative laws.
So basically kung competitive, the entry in the
government is based usually in merit and fiTNess
determined through competitive examinations. While
non-competitive, it does not require civil service
eligibility.
There are three kinds of non-competitive: Policy-
determining, Primarily Confidential and Highly Technical.
Policy-determining - it is the government that
formulates the method of action; what is the policy that
you have been appointed to in which case that would not
require any eligibility.
Primarily Confidential - because the relationship is
based on trust and confidence with the appointing
authority. Ex: Executive Assistants, Executive
Secretaries. But PAGCOR, as it was settled in one case,
the employees, while it is true that they are supposedly
working in confidence because they are trying to protect
their clients, diba? The deckers and managers in the
casino, while their operations may be confidential for
security reasons, Supreme Court was saying that it was
not a confidential position and therefore they are not
covered under this non-competitive but competitive
position.
Highly Technical - that is also non-competitive because
that would be based on skills, not on a civil service
eligibility.
(TN) Q: What would then be the test whether one is
competitive or non-competitive?
A: It will be based on the nature of the responsibilities;
not the administrative or legislative description given to
it. That was in the case of PAGCOR, take note of that.
2.ADMINISTRATIVE LAW; P.D. NO. 1869; SECTION 16
THEREOF CLASSIFIES ALL EMPLOYEES OF THE
CASINO AND RELATED SERVICES AS
"CONFIDENTIAL" APPOINTEES; CLASSIFICATION,
NOT BINDING ON COURTS. Petitioner argues that
pursuant to Section 16 of Presidential Decree No. 1869,
respondent is a primarily confidential employee. Hence,
he holds office at the pleasure of the appointing power
and may be removed upon the cessation of confidence
in him by the latter. Such would not amount to a removal
but only the expiration of his term. However, there
should be no lingering doubt as to the true import of said
Section 16 of P.D. No. 1869. We have already
80
definitively settled the same issue in Civil Service
Commission v. Salas, to wit: . . . we approve the more
logical interpretation advanced by the CSC to the effect
that "Section 16 of P.D. 1869 insofar as it
exempts PAGCOR positions from the provisions of Civil
Service Law and Rules has been amended, modified or
deemed repealed by the 1987
Constitution and Executive Order No.
292 (Administrative Code of 1987). However, the same
cannot be said with respect to the last portion of Section
16 which provides that "all employees of the casino and
related services shall be classified as 'confidential'
appointees." Justice Regalado's incisive discourse yields
three (3) important points: first, the classification of a
particular position as primarily confidential, policy-
determining or highly technical amounts to no more than
an executive or legislative declaration that is not
conclusive upon the courts, the true test being the nature
of the position. Second, whether primarily confidential,
policy-determining or highly technical, the exemption
provided in the Charter pertains to exemption from
competitive examination to determine merit and fiTNess
to enter the civil service. Such employees are still
protected by the mantle of security of tenure. Last, and
more to the point, Section 16 of P.D. 1869, insofar as it
declares all positions within PAGCOR as primarily
confidential, is not absolutely binding on the courts.
3.ID.; ID.; CASINO OPERATIONS MANAGER, NOT
PRIMARILY CONFIDENTIAL. Respondent's duties
and responsibilities call for a great measure of both
ability and dependability. They can hardly be
characterized as routinary, for he is required to exercise
supervisory, recommendatory and disciplinary powers
with a wide latitude of authority. His duties differ
markedly from those we previously ruled as not primarily
confidential. In this sense, he is a tier above the ordinary
rank-and-file in that his appointment to the position
entails faith and confidence in his competence to
perform his assigned tasks. Lacking, therefore, is that
amplitude of confidence reposed in him by the
appointing power so as to qualify his position as
primarily confidential. I
||| (PAGCOR v. Rilloraza, G.R. No. 141141, June 25,
2001)
Q: This competitive or non-competitive, do they enjoy
security of tenure?
A: Definitely. They only differ in the manner in which
they are filled out as regards to qualifications or
requirements.
Q: You know already who provides or prescribes the
qualifications?
A: Its always by the law.
Q: And what is the role of the Civil Service Commission
with respect to appointments?
A: Only to attest whether this particular appointee or
nominee has the minimum qualifications described by
law. So once it is found that the qualifications are
complied with, what they can only do is to attest to the
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
validity or the eligibility of the appointee. Its not for them
to decide who is more qualified among the appointees.
That discretion is still left to the appointing authority. In
other words, the Civil Service cannot add qualifications
other than those provided by law.
Q: Another point which is asked in Administrative Law
relating to the Civil Service is on the Next-in-Rank
Policy. Is this mandatory?
A: No. While the person next-in-rank is entitled to
preferential consideration, it does not follow that only he
and no one else can be appointed. In other words, still it
is within the discretion of the appointing officer or
authority to choose from among the candidates. What is
required by law is that the appointee has complied with
the minimum qualifications prescribed by law.
Another classification of position is - according to
Tenure: you have Career service and Non-career
service. The other one is Competitive and Non-
competitive. This one is now on tenure, career or non-
career.
Career service is usually based on merit and fiTNess to
be determined as far as practicable by competitive
examinations based on technical qualifications; whereas
in Non-career, entrance is based on other than usual
test of merit and fiTNess. Lets say for example, elective
positions are non-career. Usually the executive officers
of government or those even rank-and-file but based on
civil service eligibility, thats considered as career, when
there is room for promotion. When you are elected as
BARangay captain, theres no way that you would be
promoted as governor if you dont run as governor.
Q: For career, they are entitled to security. What about
non-career? Like if you are an elected official, what is
your security of tenure?
A: It is limited only, during the period of your term of
office. If you are, for example, a confidential employee,
like you are an executive assistant, yours is only co-
terminus to the appointing authority. Once your
appointing authority is dismissed, its good as you are
already also dismissed; or once the term of office of the
appointing authority has already expired, your term also
is good as expired. Or limited to the duration of a
particular project for which purpose the employment was
made. So once the project is completed, youre done.
(BAR) Q: What is favored in the BAR exam is this
doctrine and principle of Security of Tenure. Do you what
this security of tenure is?
A: Its that you cannot be removed from office without
just cause provided by law. All government officials and
employees as a rule enjoy security of tenure.
(TN) But take note, when you say you can only be
removed for legal cause provided by law, it must be
related to and affects the administration of office. It must
be substantial, directly affecting the rights and interests
of the public. Of course, you always have the Civil
81
Service Law providing for the process. It also
presupposes that even if there is a basis for your
removal, you cannot just be outrightly removed without
hearing. So there is always due process both substantial
and
***** What is important is you have to have the
necessary qualifications to the position and eligibility.
Even if you have the qualification but not the eligibility,
there is no guarantee that you will stay in that position
under the principle of security of tenure. That is not the
kind of security of tenure we are referring to.
For example: youre a lawyer occupying a position as
director of the LTO. There is now a requirement of
CESO Carrier executive eligibility. You may have the
best qualifications that are required but it also requires
this particular eligibility. If you dont have that you can
always be removed or transferred and security of tenure
cannot be invoked. Same applies for the reverse, no
qualification but has the eligibility.
In other words, the qualifications and requisite
eligibility must concur.
TN: Achacoso v Macaraig (BAR)
1.CONSTITUTIONAL LAW; BILL OF RIGHTS;
SECURITY OF TENURE; PERMANENT
APPOINTMENT ISSUED ONLY TO PERSONS
QUALIFIED. A permanent appointment can be issued
only "to a person who meets all the requirements for the
position to which he is being appointed, including the
appropriate eligibility prescribed."
2.ID.; ID.; ID.; PERSONS APPOINTED WITHOUT THE
REQUISITE QUALIFICATION DEEMED IN ACTING
CAPACITY. The mere fact that a position belongs to
the Career Service does not automatically confer
security of tenure on its occupant even if he does not
possess the required qualifications. Such right will have
to depend on the nature of his appointment, which in
turn depends on his eligibility or lack of it. A person who
does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, only as an
exception to the rule, may be appointed to it merely in an
acting capacity in the absence of appropriate eligibles.
3.ID.; ID.; ID.; TEMPORARY APPOINTMENT;
PURPOSE. The purpose of an acting or temporary
appointment is to prevent a hiatus in the discharge of
official functions by authorizing a person to discharge the
same pending the selection of a permanent or another
appointee.
4.ID.; ID.; ID.; ID.; CONDITION IMPOSED ON
APPOINTEE. The person named in an acting
capacity accepts the position under the condition that he
shall surrender the office once he is called upon to do so
by the appointing authority.
5.ID.; ID.; ID.; EXPIRATION OF TERM; METHOD OF
TERMINATING TEMPORARY EMPLOYMENT. In
these circumstances, the acting appointee is separated
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
by a method of terminating official relations known in the
law of public officers as expiration of the term. His term
is understood at the outset as without any fixity and
enduring at the pleasure of the appointing authority.
When required to relinquish his office, he cannot
complain that he is being removed in violation of his
security of tenure because removal imports the
separation of the incumbent before the expiration of his
term. This is allowed by the Constitution only when it is
for cause as provided by law. The acting appointee is
separated precisely because his term has expired.
Expiration of the term is not covered by the constitutional
provision on security of tenure.
6.ID.; ID.; ID.; LUEGO CASE (143 SCRA 327) NOT
APPLICABLE TO CASE AT BAR. The case of
Luego v. Civil Service Commission is not applicable
because the facts of that case are different. The
petitioner in Luego was qualified and was extended
a permanent appointment that could not be withdrawn
on the ground that it was merely temporary. In the
case at BAR, the petitioner was not eligible and
therefore could be appointed at best only in a
temporary capacity. The other cases he cites, viz.
Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court, Palma-Fernandez v. De la Paz, and
Dario v. Mison, are also not pertinent because they
also involved permanent appointees who could not be
removed because of their security of tenure.
||| (Achacoso v. Macaraig, G.R. No. 93023, March 13,
1991)
A permanent appointment can be issued only to a
person who meets all the requirements for the position to
which he is being appointed, including the appropriate
eligibility prescribed.
The mere fact that a position belongs to the Career
Service does not automatically confer security of tenure
on its occupant even if he does not possess the required
qualifications. Such right will have to depend on the
nature of appointment which interdepends on his
eligibility or lack of it.
(BAR)
Q: Is there security of tenure for non-competitive
positions?
A: Yes, however, limited. Even non-career. Confidential
employees hold office only as long as confidence remain
in them.
In other words, if the appointing authority loses
confidence, then he is fired. This shall not be taken as
dismissal but as an expiration of term. For there must be
a genuine loss of confidence, there is no removal. Non-
career employees do not enjoy security of tenure.
Political appointees in the Foreign Service possess
tenure, coterminous with the appointing authority or
subject to his pleasure. So, there has to be a valid
appointment in order to enjoy security of tenure.
82
Otherwise, appointment is void; there is no expectation
of security of tenure.
Q: How about temporary employees, are they covered
by the? Are they protected by the security of tenure?
A: No. In fact, even if the appointing authority does not
give any reason simply does not want or like the way the
employees must adhere that could be a ground for his
removal. He does not have to explain because a
temporary employee does not enjoy security of tenure.
He can be removed anytime even without cause. So, if
they are dismissed, it just simply an expiration of their
term.
Another prohibition if you are an employee in the
government, you cannot engage directly or indirectly in
political partisanship or electioneering political activity
(TN)
Q: And then on the matter of, can you organize a union
or association to protect your economic interest? (BAR)
A: There is no prohibition against joining a union. It is not
prohibited under the constitution.
What is, however, prohibited by statutes not by the
constitution is the right to strike because after all,
according to the SC, in many cases, the right to strike
does not formally integral part of the right to association.
You can always have an association or organization
even without engaging in concerted activities.
So we have statutes, executive order, there is the Civil
Service Memorandum prohibiting the employees
engaging in concerted activities.
Another thing to (TN), losing candidate. Political laying
ducks are prohibited. They are disqualified for
appointments within 1 year from the election that he
loss. (TN)
Elective official are not eligible for appointment in any
capacity to any public office or position during their
tenure. They may accept it, however they have to resign
from their local position. And thats why we need to
amend this provision in order to totally ban elective
officials from appointment so that they cannot just leave
their office and accept an appointment, that would not be
fair to their constituents. But her it is allowed provided
that he resigns or he forfeits his elective position. Now,
the exception to the appointment to any other positions
in the government is when you are appointed, you have
an appointment now regular, you can be appointed to
another position but it must be in ex officio capacity. Like
the President that you selected is also appointed as the
chairman chief of the national housing corporation and
authority or a congressman sitting as member of the
JBC.
TN on civil service with respect to suspension and
dismissal in relation to security of tenure, i.e., the
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
entitlement to reinstatement with backpay; if reinstated,
would he be entitled to backpay:
Q: For example, hes under preventive suspension for
three months, then he was exonerated, can he recover
his salary for the period of his preventive suspension?
A: Generally, for as long as its legitimate, we follow the
principle no work, no pay; unless it is expressly provided
in the constitution that he is entitled to payment of
backpay during the period he was placed under
preventive suspension.
If it is suspension as a penalty or even dismissal from
the service, this does not apply.
Q: If in the event, in an appealed case, he is reinstated
because he is found to be innocent, is he entitled to
backpay?
A: General rule still appliesno work, no payunless
the dismissal or suspension is illegal.
TN: case of DOTC v Cruz G.R. No. 178256 July 23,
2008 the SC follows as a precedent, DOTC did not effect
Cruz's termination with bad faith and,
consequently, no backwages can be awarded in his
favor.
In all these cases, the suspensions and/or
dismissals were held unjustified, the therein
petitioners having been either exonerated from
the charges-bases of suspension or dismissal or
were victims of proscribed abolition of office or
issuance of appointment to a different position
which soon after resulted in dismissal therefrom.
That the DOTC's termination of [Mamaril's]
services in accordance with the August 20, 2001
Resolution of the CSC was not attended with
bad faith and/or grave abuse of discretion, it
cannot, under the facts and circumstances of the
case, be gainsaid.
||| (Department of Transportation and
Communications v. Cruz, G.R. No. 178256,
July 23, 2008)
But if it is illegal, like in David v Gania G.R. No.
156039. August 14, 2003 a civil service employee who
has been found illegally dismissed or suspended is
entitled to be reinstated and to backwages and other
monetary benefits from the time of his illegal dismissal or
suspension up to his retirement. If he is already of
retirement age, he is entitled not only to backwages, but
also to full retirement benefits.
8.ID.; ID.; ID.; THE CIVIL SERVICE COMMISSION
GRAVELY ERRED WHEN IT RULED, DESPITE THE
PRESENCE OF SUBSTANTIAL EVIDENCE THAT
RESPONDENT DID NOT ACTUALLY ASSUME AND
PERFORM THE DUTIES OF HER POSITION SO AS
TO DEPRIVE HER OF BACKWAGES AND OTHER
BENEFITS. There is more than substantial evidence
in the record consisting of the general payroll and
attendance sheets to prove that petitioner assumed and
83
exercised the functions of Director II and Manila
Information and Liaisoning Officer at MSU as early as
June 1995 after the MSU Board of Regents approved
her permanent appointment which was issued earlier on
10 April 1995. It cannot be refuted that in September
1998 she was terminated from the service on the alleged
ground of expiration of her term and stopped from
performing the functions of her position, and
subsequently reinstated to her job upon the declaration
of the CSC that her dismissal from the service was
illegal. Clearly, the CSC gravely erred when thereafter it
ruled that respondent did not actually assume and
perform the duties of her position so as to deprive her of
back wages and other benefits. In Gabriel v.
Domingo this Court held that an illegally dismissed
government employee who is later ordered reinstated is
entitled to back wages and other monetary benefits from
the time of his illegal dismissal up to his reinstatement.
This is only fair and sensible because an employee who
is reinstated after having been illegally dismissed is
considered as not having left his office and should be
given a comparable compensation at the time of his
reinstatement. Respondent cannot be faulted for her
inability to work or to render any service from the time
she was illegally dismissed up to the time of her
reinstatement. The policy of "no work, no pay" cannot be
applied to her, for such distressing state of affairs was
not of her own making or liking even as her family
suffered tremendously as a consequence of her removal
and while she was jobless. Verily, to withhold her back
salaries and other benefits during her illegal dismissal
would put to naught the constitutional guarantee of
security of tenure for those in the civil service.
9.ID.; ID.; ID.; THE STATE UNIVERSITY CANNOT BE
MADE TO PAY ALL ACCRUING BACK SALARIES AND
OTHER BENEFITS IN FAVOR OF RESPONDENT; THE
SUPERIOR OFFICERS FOUND TO BE IN BAD FAITH
OR HAVE ACTED WITH PERSONAL MALICE WILL BE
HELD PERSONALLY ACCOUNTABLE. We also
agree with the Court of Appeals that MSU cannot be
made to pay all accruing back salaries and other
benefits in favor of respondent. There are allegations to
the effect that officials of MSU disobeyed in bad faith the
writ of execution issued by the CSC. In Gabriel v.
Domingo we held that if the illegal dismissal; including
the refusal to reinstate an employee after a finding of
unlawful termination, is found to have been made in bad
faith or due to personal malice of the superior officers
then they will be held personally accountable for the
employee's back salaries; otherwise, the government
disburses funds to answer for such arbitrary dismissal.
This rule is also enunciated in Secs. 38 and 39 of Book
1, E.O. 292, and in Secs. 53, 55, 56 and 58 of Rule XIV
of the Omnibus Civil Service Rules and Regulations.
||| (Constantino-David v. Pangandaman-Gania, G.R. No.
156039, August 14, 2003)
I was talking about compensation earlier; double
compensation is prohibited, but
TN/Q: if you have retired already from the government
service and youre receiving pension, and you're re-
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
employed by the government, this time can you receive
the salary from your current employment with
government after retirement, considering that youre
receiving pension?
A/TN: Yes. Pension is different from salary. Santos v
CA G.R. No. 139792. November 22, 2000 SC said that
double compensation is not applicable to pension. A
retiree receiving pension or gratuity can continue to
receive such pension or gratuity even if he accepts
another government position to which another
compensation is attached.
2.ID.; ID.; ID.; DOUBLE COMPENSATION, CONCEPT;
A RETIREE RECEIVING PENSION OR GRATUITY
CAN CONTINUE TO RECEIVE IT EVEN IF HE
ACCEPTS ANOTHER GOVERNMENT POSITION TO
WHICH ANOTHER COMPENSATION IS ATTACHED.
The petitioner cannot take refuge under the second
paragraph of Section 8 of Article IX-B of the Constitution,
which provides: Pensions or gratuities shall not be
considered as additional, double, or indirect
compensation. This provision simply means that a
retiree receiving pension or gratuity can continue to
receive such pension or gratuity even if he accepts
another government position to which another
government position to which another compensation is
attached. Indeed, the retirement benefits which petitioner
had received or has been receiving under R.A. No. 910,
as amended, do not constitute double compensation. He
could continue receiving the same even if after his
retirement he had been receiving salary from the defunct
MMA as Director III thereof. This is but just because said
retirement benefits are rewards for his services as MeTC
Judge, while his salary was his compensation for his
services as Director III of the MMA.||| (Santos v. Court of
Appeals, G.R. No. 139792, November 22, 2000)
Earlier I was saying that the holding of strike is
prohibited,
TN/BAR: SSS Employees Association v CA G.R. No.
85279 July 28, 1989 while the Constitution and the
Labor Code are silent as to whether government
employees have the right to 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 in E.O. No. 180.
1.ADMINISTRATIVE LAW; CIVIL SERVICE;
PROHIBITION TO GOVERNMENT EMPLOYEES
FROM STRIKING. While the Constitution and the
Labor Code are silent as to whether or not government
employees may strike, they are prohibited from striking,
by express provision of Memorandum Circular No. 6
series of 1987 of the Civil Service Commission and as
implied in E.O. No. 180.
2.ID.; ID.; ID.; REMEDIES IN LIEU OF RIGHT TO
STRIKE. Government employees may, therefore,
through their unions or associations, either petition the
Congress for the betterment of the terms and conditions
of employment which are within the ambit of legislation
84
or negotiate with the appropriate government agencies
for the improvement of those which are not fixed by law.
3.ID.; CIVIL SERVICE; SOCIAL SECURITY SYSTEM
EMPLOYEES ARE PART THEREOF AND COVERED
BY MEMORANDUM PROHIBITING STRIKES. SSS
employees are part of the civil service and are covered
by the Civil Service Commission's memorandum
prohibiting strikes.
4.LABOR AND SOCIAL LEGISLATION; EXECUTIVE
ORDER NO. 180; ALLOWS GOVERNMENT
EMPLOYEES TO NEGOTIATE WHERE TERMS AND
CONDITIONS OF EMPLOYMENT ARE NOT AMONG
THOSE FIXED BY LAW. E.O. No. 180 which
provides guidelines for the exercise of the right to
organize of government employees, allows negotiation
where the terms and conditions of employment involved
are not among those fixed by law.
5.ID.; ID.; TERMS AND CONDITIONS OF
EMPLOYMENT IN GOVERNMENT ARE GOVERNED
BY LAW; EMPLOYEES SHALL NOT STRIKE TO
SECURE CHANGES. Section 4, Rule III of the Rules
and Regulations to Govern the Exercise of the Right of
Government Employees to Self-Organization, which took
effect after the instant dispute arose, "[t]he terms and
conditions of employment in the government, including
any political subdivision or instrumentality thereof and
government-owned and controlled corporations with
original charters are governed by law and employees
therein shall not strike for the purpose of securing
changes thereof."
||| (SSS Employees Ass'n. v. Court of Appeals, G.R. No.
85279, July 28, 1989)
Kindly check again, we were discussing about judicial
review on judicial powers, we mentioned about operative
fact doctrine as a consequence of a law that was
declared unconstitutional
We follow the modern view. It is valid until it is declared
a nullity. However, you cannot just simply ignore the
effects of the law while it was still being enforced. It may
affect substantive rights if you will also nullify those acts
as a consequence of the declaration of
unconstitutionality of the law or of the act of government.
You TN of this Operative Fact Doctrine because that
was emphasized in the recent DAP case.
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
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
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; but where no such result would
ensue, the general rule that an unconstitutional law is
totally ineffective should apply. EIaDHS
In that context, as Justice Brion has clarified, the
doctrine of operative fact can apply only to the PAPs
(Programs, Activities and Projects) 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.
||| (Araullo v. Aquino, III, G.R. No. 209287, July 01,
2014)
As we have explained before, it was declared
unconstitutional, and we have expected that because
number one, it violated Section 25 paragraph 5 thereof,
where the transfer of savings was violated in this
particular case because they did not follow what savings
means. Apparently, they get the unobligated funds of the
different departments and impound them, did not spend
them, and at the middle of the year, they were then
taken by the President and classified them as savings.
And then the same is thereafter transferred to other
offices, other than the executive department like COA,
the Autonomous Region of Cordillera, members of
Congress likewise were also benefited from it. There
was a violation of cross border here as regards the
transfer of appropriation and it was without the aid of the
appropriation law because they simply got it from the
savings and allocate them to projects as it may be
desired by the President.
The Supreme Court was saying that under the Operative
Fact Doctrine, it will not affect the projects, but this does
not apply to the persons responsible for the illegal acts
of transferring these funds from the executive
department into other offices of government other than
the executive department.
85
You have to make then a distinction as to the declaration
of unconstitutionality following the principle of the
Operative Fact Doctrine. Again, what was emphasized
by the Supreme Court is that this only applies to the
projects as recipients of the disbursement of the funds,
but cannot apply as to liability if theres any for those
government officials. Just TN of that.
COMELEC
Q: Can they issue writs of certiorari, prohibition and
mandamus?
A: Answer is yes, but only in aid of their appellate
jurisdiction. Lets go into the powers of the COMELEC
guys. This will be discussed in detail in your Election
Laws, so Im not going to deal so much on that. Well just
go to provisions that are mentioned in the Constitution.
Now lets go directly to Section 2, on powers and
functions. Enforce and administer all regulations relative
to the conduct of an election, plebiscite, initiative,
referendum and recall. You must know the meanings of
these terms.
*****Q: Okay, so they have exclusive original jurisdiction
over all contests relating to what? Election returns and
qualifications of all elective officials coming from the
regional, provincial and city officials. Lets now go to the
jurisdiction of the COMELEC? Have you mastered this?
Election contests involving barangay officials, where do
you file your election protest or Quo Warranto Petition?
A: You file it with the MTC or the City Courts that has
jurisdiction.
*****Q: If the decision is rendered by the MTC, you are
aggrieved, where do you appeal?
A: You dont appeal to the RTC. You appeal directly to
the COMELEC. MTC to COMELEC.
*****Q: If the decision is rendered by the COMELEC,
where do you appeal?
A: You cannot appeal anymore. The decision is Final
and Executory.
Unless there is an allegation of grave abuse of discretion
amounting to lack or in excess of jurisdiction, then you
can go directly to the Supreme Court on Certiorari.
However, on the condition precedent to that you have to
file a Motion for Reconsideration because decisions
election cases that are adjudicatory in nature are only
decided by the COMLEC by division and under the
Constitution, only the decisions of the Constitutional
Commissions en banc are appealable to the Supreme
Court on Certiorari.
*****Q: What about election contests involving municipal
officials, where do you file?
A: File it with the RTC.
*****Q: If you lose the case in RTC, where do you
appeal?
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: You go to the COMELEC.
*****Q: And if you still lose the case in the COMELEC,
where do you go?
A: Nowhere. Because decision of the COMELEC is final
and executory, unless you allege grave abuse of
discretion amounting to lack or in excess of jurisdiction.
*****Q: If it involves City Officials or Provincial Officials,
where do you file?
A: You file directly with the COMELEC. Original
Jurisdiction.
Q: If you lose the case in the COMELEC, where do you
appeal?
A: You appeal to the Supreme Court on Certiorari, as a
matter of right.
In other words, COMELEC has only appellate jurisdiction
involving Barangay and Municipal Elective Officials. And
their decisions are Final and Executory.
Q: Does COMELEC have contempt powers?
A: Yes, but only in relation to its Quasi-Adjudicatory or
Quasi-Judicial Function. It cannot exercise this in
connection which is purely executive or ministerial
functions.
TN In a pre-proclamation controversy, the COMELEC
exercises Quasi-Judicial and Administrative Powers. Its
jurisdiction over Election Contest is in exercise of its
Judicial Functions.
TN Bedol Case.
Do you know where Bedol now is? He is now a
classmate of the Senators at the PNP Custodial Center
(laughs) You know what happened to that Bedol?
[Provincial COMELEC Maguindanao Chief]. He was
asked to submit all Election Returns, sa Maguindanao
bah, involving the Election of Senators where Zubiri was
proclaimed as the Elected Senator, last Senator. And
Pimental was saying, No, he was cheated. And Pimentel
wanted to know where are the Election Returns so that
they would be able to know if what was indicated therein
are correct. What happened? Bedol did not appear. He
said he lost all the Election Returns. Gi Magic. So he
was cited for Contempt.
He was saying, You cannot cite me for Contempt
because that was an exercise of Administrative
Functions of the COMELEC, when he was ordered and
summoned to appear before COMELEC and bring all the
Election Returns and Paraphernalia.What did the
Supreme Court say in this case of Bedol? Ngano na
priso naman na siya karon?
The Supreme Court said the COMELEC possess the
power to conduct investigation as an adjuct to its
constitutional duty to enforce and administer all Election
Laws, by virtue of the explicit provisions of the
Constitution.
86
In the same vein, to withhold from the
COMELEC the power to punish individuals who refuse to
appear during a fact-finding investigation, despite a
previous notice and order to attend, would render
nugatory the COMELEC's investigative power, which is
an essential incident to its constitutional mandate to
secure the conduct of honest and credible elections. In
this case, the purpose of the investigation was however
derailed when petitioner obstinately refused to appear
during said hearings and to answer questions regarding
the various election documents which, he claimed, were
stolen while they were in his possession and custody.
Undoubtedly, the COMELEC could punish petitioner for
such contumacious refusal to attend the Task Force
hearings.
Even assuming arguendo that the COMELEC
was acting as a board of canvassers at that time it
required petitioner to appear before it, the Court had the
occasion to rule that the powers of the board of
canvassers are not purely ministerial. The board
exercises quasi-judicial functions, such as the function
and duty to determine whether the papers transmitted to
them are genuine election returns signed by the proper
officers. When the results of the elections in the
province of Maguindanao were being canvassed,
counsels for various candidates posited numerous
questions on the certificates of canvass brought before
the COMELEC. The COMELEC asked petitioner to
appear before it in order to shed light on the issue of
whether the election documents coming from
Maguindanao were spurious or not. When petitioner
unjustifiably refused to appear, COMELEC undeniably
acted within the bounds of its jurisdiction when it issued
the assailed resolutions.
||| (Bedol v. COMELEC, G.R. No. 179830, December 03,
2009)
So what happened here with Bedol.
The Supreme Court here was saying that the Task-
Force-Maguindanao Fact-Finding-Investigation was
created for the purpose of probing into the veracity of the
alleged fraud that marred the elections in the Province of
Maguindanao and consequently, to determine whether
the certificates of canvass were genuine or spurious and
whether an election offense had possibly been
committed could by no means be classified as purely
ministerial or administrative function.
So since it is not a ministerial or administrative function,
it was a quasi-judicial function according to the Comelec.
It was just right for the Comelec to sight this Atty. Bedol
in contempt. So the Comelec from the Task-Force-
Maguindanao (TF) was exercising its quasi-judicial
power in pursuit of the truth behind the allegations of
massive fraud during the elections in Maguindanao; to
achieve its objective the TF conducted hearings and
required the attendance of the parties concerned,
including Bedol, and the counsels to give them the
opportunity argue and support their respective positions.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
Task Force Maguindanao's fact-finding investigation
to probe into the veracity of the alleged fraud that marred
the elections in said province; and consequently, to
determine whether the certificates of canvass were
genuine or spurious, and whether an election offense
had possibly been committed could by no means be
classified as a purely ministerial or administrative
function.
The COMELEC, through the Task Force Maguindanao,
was exercising its quasi-judicial power in pursuit of the
truth behind the allegations of massive fraud during the
elections in Maguindanao. To achieve its objective, the
Task Force conducted hearings and required the
attendance of the parties concerned and their counsels
to give them the opportunity to argue and support their
respective positions.
||| (Bedol v. COMELEC, G.R. No. 179830, December 03,
2009)
So when Bedol therefore was cited for contempt, it was
an exercise of its quasi-judicial power; because of his
contumacious refusal to attend the TF hearings thus he
was arrested. Here, as you would note, to withhold,
according to the Supreme Court, from the Comelec the
power to punish individual who refuse to appear in a
fact-finding investigation despite previous notice in order
to attend would render nugatory the Comelecs
investigative power which is an essential incident to its
constitutional mandate to secure the conduct of honest
and credible elections; in this case, the purpose however
of the investigation was derailed when Bedol obstinately
refuse to appear during said hearings in order to answer
questions regarding the various elections documents
which he claimed was stolen when they were in his
possession and custody. The issue then of Pimentel vs.
Zubiri was mooted by Zubiris resignation and so
Pimentel then took over the remaining term of office of
Senator Zubiri.
Q: Does this include the setting the date of the
elections? Do they have the power to set the date of
elections?
A. Answer is NO.
Take note of the case of Maguindanao Federation of
Autonomous Irrigators Association Inc. (represented
by Abas Kida) et. al vs. The Senate. Remember that
the terms of office of the officials of the ARMM had
already expired; because of the situation in the
Maguindanao, they wanted to postpone the elections,
and in effect, by postponing it what would happen is
Comelec would be extending the term of office of the
incumbents.
Neither do we find any merit in the contention that the
Commission on Elections (COMELEC) is sufficiently
empowered to set the date of special elections in the
ARMM. To recall, the Constitution has merely
empowered the COMELEC to enforce and administer all
laws and regulations relative to the conduct of an
87
election. Although the legislature, under the Omnibus
Election Code (Batas Pambansa Bilang [BP] 881), has
granted the COMELEC the power to postpone elections
to another date, this power is confined to the specific
terms and circumstances provided for in the law. XXX
XXX XXX
As we have previously observed in our assailed
decision, both Section 5 and Section 6 of BP
881 address instances where elections have already
been scheduled to take place but do not occur or had to
be suspended
because of unexpected and unforeseen circumstances
,such as violence, fraud, terrorism, and other analogous
circumstances.
In contrast, the ARMM elections were postponed by
law, in furtherance of the constitutional
mandate of synchronization of national and local
elections. Obviously, this does not fall under any of the
circumstances contemplated by Section 5 or Section
6 of BP 881.
More importantly, RA No. 10153 has already fixed the
date for the next ARMM elections and the COMELEC
has no authority to set a different election date.
Even assuming that the COMELEC has the authority to
hold special elections, and this Court can compel the
COMELEC to do so, there is still the problem of having
to shorten the terms of the newly elected officials in
order to synchronize the ARMM elections with the May
2013 national and local elections. Obviously, neither the
Court nor the COMELEC has the authority to do this,
amounting as it does to an amendment of Section 8,
Article X of the Constitution, which limits the term of local
officials to three years.
||| (Abas Kida v. Senate of the Phils., G.R. No. 196271,
196305, 197221, 197280, 197282, 197392, 197454,
February 28, 2012)
So again
Q: Does the Comelec have the power to postpone and
set the date of elections, or if not does the Congress
have the power to extend the term of office of these local
elective officials in ARMM?
These were the issues in the case of Maguindanao
Federation.
A. TN -The Supreme Court said, the power to fix the
date of the elections is essentially legislative in nature as
evident from and exemplified by Section 8, Article VI,
and also Section 4, par. 3 of Article VII.
So, it is not for the Comelec but it is for the Congress.
Nonetheless, it was also emphasized in the
Maguindanao case that while it is Congress that fixes
the date of elections, it cannot extend the term of office
because in effect that will amend the Constitution. The
Constitution is very clear on the term of office.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
In the meantime where there cannot be an election
because of the circumstances
Q: Who has the power then to fill the vacancy because
the term had already expired and so vacancy had
occurred? There cannot be an extension by the
Congress because in effect that would violate the
Constitution.
A. It is then for the President, having the supervision
over the Local Government Units, to appoint an officer-
in-charge in the meantime until elections shall be held.
TN Sema vs COMELEC
Supreme Court said that the COMELEC does not have
the requisite power to call elections as the same is part
of the plenary legislative power.
Q: Does the COMELEC have jurisdiction to determine
leadership of or the election in political parties? Do they
have the power to intervene? For example in the LP
case there was a question of leadership, during the time
of Arroyo, between Atienza and Drilon. They had their
sets of officers elected as officers of LP. They were
questioning the validity of the election of Drilon and
others. Atienza filed at COMELEC. Does COMELEC
have jurisdiction over the controversy involving
leadership of a political party?
A: Yes. The political partys identity is crucial here. Its
accreditation is with the COMELEC. So in as much as
this would involve leadership affecting the political party
itself, it is within the jurisdiction of the COMELEC to
settle the controversy.
The COMELEC's jurisdiction over intra-party disputes is
limited. It does not have blanket authority to resolve any
and all controversies involving political parties. Political
parties are generally free to conduct their activities
without interference from the state. The COMELEC may
intervene in disputes internal to a party only when
necessary to the discharge of its constitutional functions.
The COMELEC's jurisdiction over intra-party leadership
disputes has already been settled by the Court. The
Court ruled in Kalaw v. Commission on Elections that
the COMELEC's powers and functions under Section 2,
Article IX-C of the Constitution, "include the
ascertainment of the identity of the political party and its
legitimate officers responsible for its acts." The Court
also declared in another case that the COMELEC's
power to register political parties necessarily involved
the determination of the persons who must act on its
behalf. Thus, the COMELEC may resolve an intra-party
leadership dispute, in a proper case brought before it, as
an incident of its power to register political parties.
The validity of respondent Roxas' election as LP
president is a leadership issue that the COMELEC had
to settle. Under the amended LP Constitution, the LP
president is the issuing authority for certificates of
nomination of party candidates for all national elective
positions. It is also the LP president who can authorize
88
other LP officers to issue certificates of nomination for
candidates to local elective posts. In simple terms, it is
the LP president who certifies the official standard
bearer of the party.
The law also grants a registered political party certain
rights and privileges that will redound to the benefit of its
official candidates. It imposes, too, legal obligations
upon registered political parties that have to be carried
out through their leaders. The resolution of the
leadership issue is thus particularly significant in
ensuring the peaceful and orderly conduct of the
elections.
||| (Atienza v. COMELEC, G.R. No. 188920, February
16, 2010)
Supreme Court said, reiterating the case of LDP vs
COMELEC, the COMELEC has jurisdiction to decide
questions of leadership within a party and to ascertain its
legitimate officers and leaders. The COMELEC is
endowed with wherewithal" and "considerable latitude in
adopting means and methods that will ensure the
accomplishment of the great objectives for which it was
created to promote free, orderly and honest elections.
Q: What about disciplining members? Does COMELEC
have jurisdiction over the controversy? As a
consequence of the case involving LP, Atienza was
hereinafter removed/expelled as a member of LP.
Atienza complained and went to the COMELEC. Does
COMELEC have jurisdiction?
A: No. This is under the jurisdiction of the political party.
It is within the discretion of the political party.
While the question of party leadership has implications
on the COMELECs performance of its functions under
Section 2, Article IX-C of the Constitution, the same
cannot be said of the issue pertaining to Atienza, et al.s
expulsion from the LP. Such expulsion is, for the
moment, an issue of party membership and discipline, in
which the COMELEC cannot intervene, given the limited
scope of its power over political parties
TN
Limkaichong vs COMELEC
Case regarding the proclamation of the winners,
notwithstanding the pendency of disqualification cases
against them. This is allowed pursuant to Resolution No.
8062, issued by the COMELEC in the exercise of its
quasi-legislative function.
Registration of political parties, TN of RA7491. --TN
Q: What are political parties that cannot be accredited in
order to participate in the party list system? TN
A: (1)It is a religious sect or denomination,
organization or association organized for
religious purposes;
(2)It advocates violence or unlawful means
to seek its goal;
(3)It is a foreign party or organization;
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
(4)It is receiving support from any foreign
government, foreign political party,
foundation, organization, whether directly
or through any of its officers or members
or indirectly through third parties for
partisan election purposes; cdtai
(5)It violates or fails to comply with laws,
rules or regulations relating to elections;
(6)It declares untruthful statements in its
petition;
(7)It has ceased to exist for at least one (1)
year; or
(8)It fails to participate in the last two (2)
preceding elections or fails to obtain at
least two per centum (2%) of the votes
cast under the party-list system in the two
(2) preceding elections for the
constituency in which it has registered.
||| (Party-List System Act, REPUBLIC ACT NO. 7941
[1995])
On the rules of procedure they are promulgated by the
COMELEC.
The thing you should TN is on decision making, kung
purely administrative it is always decided by the
COMELEC en banc, meaning 7 of them, pero kung
Adjudicatory powers, it is always decided in division. So
kung in Division, and its say for example you file a case
in a division and it was dismissed outright,
Q: Can you directly go to the supreme court on
certiorari?
A: No. you have to file an MR for the purpose of having it
resolved by the COMELEC en banc TN
The only exception: Where the COMELEC may call
adjudicatory. Adjudicatory gani means division gyud na.
The only exception here is when the Comelec en banc
may directly assume over to a petition to correct
manifest errors in the tallying of results by the board of
canvassers. Direcho na en banc, di na mu agi og
division.
Q: Can the COMELEC execute its own judgment?
A: YES. They can issue a writ of execution. Balajonda v.
COMELEC TN
Early last year, the Court, through Mr. Justice Antonio T.
Carpio in Batul v. Bayron, affirmed a similar order of the
COMELEC First Division directing the immediate
execution of its own judgment. Despite the silence of the
COMELEC Rules of Procedure as to the procedure of
the issuance of a writ of execution pending appeal, there
is no reason to dispute the COMELEC's authority to do
so, considering that the suppletory application of the
Rules of Court is expressly authorized by Section 1,
Rule 41 of the COMELEC Rules of Procedure which
provides that absent any applicable provisions therein
the pertinent provisions of the Rules of Court shall be
89
applicable by analogy or in a suppletory character and
effect.
Batul also clearly shows that the judgments which may
be executed pending appeal need not be only those
rendered by the trial court, but by the COMELEC as well.
It stated, thus:
It is true that present election laws are
silent on the remedy of execution
pending appeal in election contests.
However,
neither Ramas nor Santosdeclared
that such remedy is exclusive to
election contests involving elective
barangay and municipal officials as
argued by Batul. Section 2 allowing
execution pending appeal in the
discretion of the court applies in a
suppletory manner to election cases,
including those involving city and
provincial officials.
Batul is different from this case in that in Batul the
decision subject of the order of immediate execution was
rendered by the poll body in the exercise of its original
jurisdictionwhile the decision in this case was
promulgated in the exercise of its appellate jurisdiction.
Still, there is no reason to dispose of this petition in a
manner different from Batul. The public policy underlying
the suppletory application of Sec. 2(a), Rule 39 is to
obviate a hollow victory for the duly elected candidate as
determined by either the courts or the
COMELEC. Towards that end, we have consistently
employed liberal construction of procedural rules in
election cases to the end that the will of the people in the
choice of public officers may not be defeated by mere
technical objections. Balajonda's argument is anchored
on a simplistic, literalist reading of Sec. 2(a), Rule 39
that barely makes sense, especially in the light of the
COMELEC's specialized and expansive role in relation
to election cases.
||| (Balajonda v. COMELEC, G.R. No. 166032, February
28, 2005)
Q: unsay election period?
A: Art 11 Sec 9.
It commences 90 days before the date of the election
and 30 days thereafter unless the COMELEC fixes
another period. Election period applies even, it could be
lesser, it could be shorter but generally it is 90 days, 30
days and this applies to plebiscites and referendum as
well not just election of officers.
Another thing is on grant of pardon as one of the
exceptions where the president cannot unless there is a
favorable recommendation from the COMELEC.
Q: What is your political party system?
A: Its free and open, its multi - party. We dont have
two-party system here.
Q: Is Block Voting allowed?
A: Prohibited
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
COMISSION ON AUDIT
Section II on the powers of the commission audit.
Examine audit and settle accounts pertaining to revenue
and receipts of funds or property or expenditures or uses
of funds.
Recent decision on audit
There are 2 kinds audit:
1. post audit
2. pre-audit
The provision didnt mention about pre-audit, only
conduct of post audit with respect to the following.
There is never any mention of pre-audit. The
COMELEC has exclusive power to determine the scope
of their audit-- that is discretionary of COA.
TNrecent decision of the Supreme Court relating to
audit
Most recent case: Dela Llana v. Chairperson of COA
Petitioner's allegations find no support in the
aforequoted Constitutional provision. 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
anaudited 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.
||| (Dela Llana v. Chairperson of COA, G.R. No. 180989,
February 07, 2012)
Supreme Court said:
There is nothing in the provision that requires COA to
conduct a pre-audit because you know the controversy
relating to the PDAF and all; it was always involving
COA because apparently what COA did was to only
make special audit.
Apparently what COA did was only to make special
audit. Because there is no pre-audit, they do so
only after the expenditure is made. That is post-
audit.
90
Q: Can they be compelled to do pre-audit?
A: No. (See case citation)
So pre-audit is discretionary, only when the internal
system of a department has failed or is inadequate.
However, the audit that they do is not exclusive to
COA. This was emphasized in the case of DBP,
that a private accounting firm may also be hired by
the Government to do the accounting and audit,
especially when the funds subject of the audit is
borrowed money from an international bank where
it is required (because they do not trust the
Government, much less the COA to do the audit).
The thing is, the audit is not exclusive to COA. In
this case of DBP vs. COA,
2.CONSTITUTIONAL LAW; COMMISSION ON
AUDIT; POWER THEREOF TO EXAMINE AND
AUDIT IS NON-EXCLUSIVE. The clear and
unmistakable conclusion from a reading of the
entire Section 2, Article IX-D of the 1987
Constitution, is that the COA's power to examine
and audit is non-exclusive. On the other hand,
theCOA's authority to define the scope of its audit,
promulgate auditing rules and regulations, and
disallow unnecessary expenditures is exclusive.
Moreover, as the constitutionally mandated auditor
of all government agencies, the COA's findings and
conclusions necessarily prevail over those of
private auditors, at least insofar as government
agencies and officials are concerned. The
superiority or preponderance of the COA audit over
private audit can be gleaned from the records of the
Constitutional Commission. . . . The findings and
conclusions of the private auditor may guide private
investors or creditors who require such private
audit. Government agencies and officials, however,
remain bound by the findings and conclusions of
the COA, whether the matter falls under the first or
second paragraph of Section 2, unless of course
such findings and conclusions are modified or
reversed by the courts. The power of the COA to
examine and audit government agencies, while
non-exclusive, cannot be taken away from
the COA. Section 3, Article IX-D of the Constitution
mandates that: "Sec. 3. No law shall be passed
exempting any entity of the Government or its
subsidiary in any guise whatsoever, or any
investment of public funds, from the jurisdiction of
the Commission on Audit." The mere fact that
private auditors may audit government agencies
does not divest the COA of its power to examine
and audit the same government agencies.
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
The COA is neither by-passed nor ignored since
even with a private audit the COA will still conduct
its usual examination and audit, and its findings and
conclusions will still bind government agencies and
their officials. A concurrent private audit poses no
danger whatsoever of public funds or assets
escaping the usual scrutiny of a COA audit.
Manifestly, the express language of the
Constitution, and the clear intent of its framers,
point to only one indubitable conclusion
the COA does not have the exclusive power to
examine and audit government agencies. The
framers of the Constitution were fully aware of the
needs 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 a
government corporation is privatized or publicly
listed, or as in the case at bar when the
government borrows money from abroad.||| (DBP
v. COA, G.R. No. 88435, January 16, 2002)
Supreme Court said that the mere fact that these
private auditors may audit Government agencies do
not divest COA of its power to examine and audit
the same agencies. Nonetheless, the intent of the
framers of the Constitution point to one indubitable
proposition, that COA does not have the exclusive
power to examine and audit Government agencies.
The only thing that is exclusive to them is to
determine the scope of their audit and their system
of audit. But the conduct of the audit itself is not
exclusive.
Q: Who can be audited by COA?
A: All government agencies.
Q: What about private agencies? Can they be
audited by COA?
A: Yes, if they are holding Government funds or
property. We have the case of Blue Bar Coconut
Philippines vs Tantuico Jr.:
3.CONSTITUTIONAL LAW; COMMISSION ON
AUDIT; JURISDICTION; SECTION 2(1), ART. IX-
D, PHILIPPINE CONSTITUTION; AUTHORITY TO
EXAMINE AND AUDIT FUNDS INCLUDES SUCH
NON-GOVERNMENTAL ENTITIES RECEIVING
SUBSIDY OR EQUITY FROM THE
GOVERNMENT. The petitioners also question
the respondents' authority to audit them. They
contend that they are outside the ambit of
respondents' "audit" power which is confined to
government-owned or controlled corporations. This
argument has no merit. Section 2 (1) of Article IX-D
of the Constitution provides that "The Commission
91
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." 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.(Blue Bar Coconut Phil. v.
Tantuico, Jr., G.R. No. L-47051, July 29, 1988)
Corporations covered by COAs auditing powers
are not limited to GOCCs. Where a private
corporation or entity handles public funds, it falls
under COAs jurisdiction.
TN, they only have jurisdiction over liquidated
funds. So if the funds are still unliquidated, you can
still go to court to contest it because they are civil
liabilities. The amount is not yet actually
determined, COA has no jurisdiction.
They only audit liquidated funds. So kung unliquidated
pa cya, jurisdiction is with the court, not with COA.
Q [student]: Can you increase the functions of COA
(widen scope of audit)?
A: Yes. Section 8, common to all, each commission shall
perform such other functions as may be provided by law
so it may be increased. But not diminish their functions
though.
XII. Local Governments
Local governments would be, HOT ISSUE WHEN YOU
TAKE THE BAR EXAM, because of the operation of the
BANGSA MORO, political entity.
Q: So as now under the constitution, what are the
territorial and political subdivisions mentioned?
A: Provinces, cities, municipalities, and barangays. It
didnt say BANGSAMORO. It says however, there
should be Autonomous Regions in Muslim Mindanao
and in Cordillera. So it will then be considered as an
Autonomous Region rather than a sub state. It must be
within the framework on the provision to the constitution
otherwise, magkamali sila. While they may not describe
it as a sub state, but virtually it is as such, not an
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
autonomous region in Muslim Mindanao. Then that
would be contrary to section 1. And this is self-executing.
Q:They enjoy local autonomy, but that autonomy does
not mean what?
A: Independence from the national government. So we
have several decisions on this. Still we have a unitary
system of government. These local governments do not
enjoy the same power as that of the national
government. And there is more to decentralization of
administration or devolution of services rather than
transfer of powers. So you should know, well, you will
have a separate subject for local government.
These are the only things you should TN, for purposes of
the BAR relating to local governments, this pertains to,
ang importante ani.
Q: Who has control over local governments?
A: Its congress. Through a law, Local government code
RA 7160. And the president has only supervision.
Q: What is the difference between control and
supervision?
A: Control is when the head of office or the superior can
even change the decision of the subordinate and replace
it with his decision. Supervision, its only monitoring to
make sure that the government officials act in
accordance with law. He cannot change or modify the
decision of a subordinate because its only supervision.
Now, TN of section 5 also. Thats also asked in the BAR
exam.
Q: what are the sources of income of local government
units?
A: So basically they can raise their own revenues by
levying local taxes, fees and charges.
Q: Can Barangay also levy their own taxes without
express law granting it such authority?
A: YES. Sec. 5 is self executing. It doesnt need an
enabling law to execute the provision.
TN If there is any law to that effect, it is only limiting the
exercise of their taxation power.
Q: Can the Local Govt. tax their local government
instrumentalities?
A: Recall the examples. It is part of the power to tax by
these local governments. It is settled in the case of
MCIAA (Lapulapu) that the LGU has the power totax
because it is engaged in proprietary functions.
In contrast however, in the case of MIAA (Pasay), this
property is owned by the state in its sovereign capacity,
and therefore exempt from tax although exercising
proprietary functions. Because they are titled in the
name of the Republic not as patrimonial properties, but
as properties owned by the state in its sovereign
capacity, therefore exempt.
92
PPA is subject to tax. Because while they are rendering
public service, the property is owned in their proprietary
capacity.
GSIS is subject to tax. Accdg to the SC, unless it is
exempt! Because under the LGC, they (LGU) are
authorized to tax them. And so because of that decision
against GSIS, the law of GSIS was amended expressly
authorizing their exemption from taxation of local taxes.
Q: In case of doubt whether an entity is subject to local
tax or not, how do you resolve the doubt?
A: Against the local taxing authority. Meaning, it is
exempt from taxation
Sec. 6 Internal Revenue Allotment.
That is automatically released. The amount is to be
determined by Congress, subject to the availability of
funds.
What is subject to the discretion of Congress is only the
amount. But as to its released, once it is determined, it
should be automatically released.
Sec. 7
TN The case involving Palawan and the Malampaya.
DOE doesnt share with the Palawan province. SC
upheld the right of the Palawan Province of an equitable
share from the proceeds of the utilization and
development of its national wealth within its area,
invoking this provision, including sharing the same with
the inhabitants by way of direct benefits. [couldnt find
exact case]
TERM OF OFFICE
3 years term, except barangay ha which cannot be
changed by law. The term of the barangay officials can
be changed by law, not the other local elective officials.
3 years but in no case shall be more than 3 consecutive
terms.
When you serve, even if you dont finish your term, it
may be considered one full term for purposes of
determining the continuity or successiveness of the term
of office. Regular election ra ha! Not succession, recall
election TN
And then you have the case of Maguindanao (Abas Kida
case). Thats the most recent decision on the term of
office. Unsay sulti sa SC? DIba na-expire na ang term of
office sa local officials, unya kay napostpone man ilang
elections kay tungod sa peace and order, so they cannot
call for an election.
Q: Can Congress, by postponing the elections, extend
the term of these local elective officials?
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
A: In the case of the terms of local officials, their term
has been fixed clearly and unequivocally, allowing no
room for any implementing legislation with respect to the
fixed term itself and no vagueness that would allow an
interpretation from this Court. Thus, the term of three
years for local officials should stay at three (3) years as
fixed by the Constitution and cannot be extended by
holdover by Congress. ADSTCa
If it will be claimed that the holdover period is effectively
another term mandated by Congress, the net result is for
Congress to create a new term and to appoint the
occupant for the new term. This view like the
extension of the elective term is constitutionally infirm
because Congress cannot do indirectly what it cannot do
directly, i.e., to act in a way that would effectively extend
the term of the incumbents. Indeed, if acts that cannot
be legally done directly can be done indirectly, then all
laws would be illusory. Congress cannot also create a
new term and effectively appoint the occupant of the
position for the new term. This is effectively an act of
appointment by Congress and an unconstitutional
intrusion into the constitutional appointment power of the
President. Hence, holdover whichever way it is
viewed is a constitutionally infirm option that
Congress could not have undertaken.
XXX XXX XXX
Significantly, the grant to the President of the power to
appoint OICs to undertake the functions of the elective
members of the Regional Legislative Assembly is neither
novel nor innovative.|||
||| (Abas Kida v. Usman, G.R. No. 196271, 196305,
197221, 197280, 197282, 197392, 197454, o, October
18, 2011)
Q: who can fill up the vacancy because the term of
the government officials have already expired
A: the grant to the President the power to appoint an
OIC to undertake the function of the elective of the
members of the regional legislative assembly is neither
novel or innovative
There were previous decisions to this supporting the
ruling of the Supremer Court that it should be the
President to appoint the Officer-in charge.
TN OF THE CASES
ALDOVINO JR VS COMELEC
BOLOS VS COMELEC
ADORMEO VS COMELEC
LONZALIGA VS COMELEC
BORJA VS COMELEC
ONG VS ALEGRE
Example: if you resign that is not considered as an
interruption.
Q: what if you are suspended?
A: depends
Preventive suspension no interruption
Mandatory suspension there is interruption
93
Q: Dismissal?
A: there is an interruption because he did not finish the
term . then it is not considered as the full term that they
serve.
CASE OF ALDOVINO JR VS COMELEC
The preventive suspension of public officials does not
interrupt their term for purposes of the 3 term limit rule
under the Constitution and the local government code.
Preventive suspension by its nature does not involve an
effective interruption of service.
Voluntary renunciation, while involving loss of office and
the total incapacity to render service, is disallowed by
the Constitution as an effective interruption of a term. It
is therefore not allowed as a mode of circumventing the
three-term limit rule.
Preventive suspension, by its nature, does not involve
an effective interruption of a term and should therefore
not be a reason to avoid the three-term limitation. It can
pose as a threat, however, if we shall disregard its
nature and consider it an effective interruption of a term.
Let it be noted that a preventive suspension is easier to
undertake than voluntary renunciation, as it does not
require relinquishment or loss of office even for the
briefest time. It merely requires an easily fabricated
administrative charge that can be dismissed soon after a
preventive suspension has been imposed. In this sense,
recognizing preventive suspension as an effective
interruption of a term can serve as a circumvention more
potent than the voluntary renunciation that the
Constitution expressly disallows as an interruption.
||| (Aldovino, Jr. vs. COMELEC, G.R. No. 184836,
December 23, 2009)
So for example, first term, elected. Second term,
elected,Third term elected. During his third term, he was
placed under preventive suspension. So nakuhaan iyang
term because he was suspended for six months. Instead
of 3 years, he only served for two years and 6 months.
Q: Can he run in the next election?
A: No. Because the preventive suspension was not
considered an interruption.
It would have been different if suspension was not
preventive suspension but suspension imposed as a
penalty then he has not fully served his third term, which
makes him qualified. Or he has been dismissed . When
you are suspended as a penalty or you are dismissed,
that is not considered as a voluntary interruption. But it
was qualified if preventive suspension because here,
you still hold the title and the office. There is no
interruption in preventive suspension.
The interruption of a term exempting an official from the
three-term limit is no less than an involuntary loss of the
title to the office. In involuntary suspension, the
suspended official is barred from exercising the functions
of his office but does not vacate and lose title to his
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
office. Loss of office is a consequence that only results
upon an eventual finding of guilt or liability. TN
BAR; Case - Bolos Jr vs COMELEC
FACTS: Bolos Jr. served as a barangay captain in his
third term. He didn't finish it.
Then there was an election in the town municipal hall so
he ran for the office of a municipal councilor and he won.
Afterwards, he got bored because he was only a
councilor compared to when he was the barangay
captain where he is the boss. So during the next
barangay election, he ran for barangay captain.
ISSUE: Is he qualified to run for Bgy Capt. when his third
term as a barangay captain was a voluntary resignation.
HELD: The SC said that Bolos was serving his third term
as punong barangay when he ran for the Sangunian
Bayan membership and upon winning and assuming the
position as a Sangguniang Bayan member, thus
voluntarily relinquishing his office as Punong Baranggay.
The court deemed this as a voluntary loss of title to the
office of Punong Baranggay and therefore, does not
interrupt the three-term limit.
An interruption in the service of a term of office, by
operation of law, is exemplified in Montebon v.
Commission on Elections. The respondent therein,
Sesinando F. Potencioso, Jr., was elected and served
three consecutive terms as Municipal Councilor of
Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-
2007. However, during his second term, he succeeded
as Vice-Mayor of Tuburan due to the retirement of the
Vice-Mayor pursuant to Section 44 of R.A. No.
7160. Potencioso's assumption of office as Vice-Mayor
was considered an involuntary severance from his office
as Municipal Councilor, resulting in an interruption in his
second term of service. The Court held that it could not
be deemed to have been by reason of voluntary
renunciation because it was by operation of law. Hence,
Potencioso was qualified to run as candidate for
municipal councilor of the Municipality of Tuburan, Cebu
in the May 14, 2007 Synchronized National and Local
Elections. |(Bolos, Jr. v. COMELEC, G.R. No. 184082,
March 17, 2009)
Ardomeo Case; Recall Term
Facts: First, Second and Third Election, he won.
Pagkatapos, iyang kontra ni-daog. However, he ran
during a recall election.
ISSUE: Was he qualified?
HELD: Yes.Because there was already an interruption.
He did not run the fourth election . He ran only during the
recall election which was after the fourth election.
Therefore, the three-term limit is already interrupted.
1.POLITICAL LAW; ELECTION LAWS;
DISQUALIFICATION; THREE-TERM RULE;
94
CONDITIONS FOR THE APPLICATION. The issue
before us was already addressed in Borja,
Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where
we held, To recapitulate, the term limit for elective local
officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective
position. Consequently, it is not enough that an
individual has served three consecutive terms in an
elective local office, he must also have been elected to
the same position for the same number of times before
the disqualification can apply. . . . Likewise, in the case
of Lonzanida vs. COMELEC, 311 SCRA 602, 611
(1999), we said, This Court held that the two conditions
for the application of the disqualification must concur: a)
that the official concerned has been elected for three
consecutive terms in the same local government post
and 2) that he has fully served three consecutive terms.
2.CONSTITUTIONAL LAW; LOCAL GOVERNMENT;
ELECTIVE LOCAL OFFICIALS; VOLUNTARY
RENUNCIATION OF OFFICE DOES NOT CANCEL
THE RENOUNCED TERM IN THE COMPUTATION OF
THE THREE-TERM LIMIT; CASE AT BAR. Neither
can respondent's victory in the recall election be deemed
a violation of Section 8, Article X of the Constitution as
"voluntary renunciation" for clearly it is not.
In Lonzanida vs. COMELEC, we said: . . . The second
sentence of the constitutional provision under scrutiny
states, "Voluntary renunciation of office for any length of
time shall not be considered as an interruption in the
continuity of service for the full term for which he was
elected." The clear intent of the framers of the
constitution to bar any attempt to circumvent the three-
term limit by a voluntary renunciation of office and at the
same time respect the people's choice and grant their
elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not
cancel the renounced term in the computation of the
three-term limit; conversely, involuntary severance from
office for any length of time short of the full term
provided by law amounts to an interruption of continuity
of service. The petitioner vacated his post a few months
before the next mayoral elections, not by voluntary
renunciation but in compliance with the legal process of
writ of execution issued by the COMELEC to that effect.
Such involuntary severance from office is an interruption
of continuity of service and thus, the petitioner did not
fully serve the 1995-1998 mayoral term. aTcESI
||| (Adormeo v. COMELEC, G.R. No. 147927, February
04, 2002)
TN: Creation of cities, municipalities and provinces, in
terms of requirements
Q: What are the requirements?
A: In terms of INCOME, POPULATION and AREA. ****
One thing you should take note is Navarro vs Ermita.
FACTS: This is the creation of the Kingdom of Ecleo,
Dinagat Island. There is a specific requirement for area.
This is an island which was sought to be considered as a
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
province. IT was considered as a province even though
it lacked the area requirement to form a province.
ISSUE: Why was it created as a province when in terms
of area, it was lacking?
RULING: The land area requirement area does not apply
where the proposed province is composed on one or
more islands. Thus it was declared valid. Accordingly,
RA 9355, creating Dinagat Province is declared as valid
and not unconstitutional. The proclamation of Dinagat
Islands as a province and the officers thereof are also
valid.
The land area requirements of a province comprising of
one or more islands does not apply.
TN: League of the Cities of the Philippines v Comelec
gi increase ang income, from 20M to 100M.
Q: Is MMDA a local government unit?
A: No. It is only an administrative coordinating body. So
therefore it does not exercise those powers that are
given to LGUs.
XI. Accountability of Public Officers
***Memorize Section 1
Section 1. Public office is a public trust. Public
officers and employees must, at all times, be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives.
***Memorize impeachable officials: (President, Vice-
President, Supreme Court Justices, Commissioners of
the Constitutional Commissions and Ombudsman). That
is EXCLUSIVE and the GROUNDS also are
EXCLUSIVE.
Grounds for Impeachment:
1. Culpable violation of the Constitution
a. Q: Is the offense relating to that
impeachable offense? Can the
President be impeached for it?
b. A: It is impeachable but whether he can
be impeached is another story. Its a
waste of time according to Fr. Bernas.
You know some people they just want to
put an impeachment complaint on
record even if it may not prosper at all.
Makataghap diay. (Its clear that there
was a violation, particularly Section
25(5) of Art. VI, whether there was good
or bad faith, but the next question is
whether it is culpable. Thats another
story.)
2. Bribery
3. Graft and Corruption
4. Betrayal of Public Trust
5. Treason
95
6. Other high crimes
The most important part here is the process. So we
have:
1. Initiation
2. Prosecution
Q: How is initiation done?
A: There has to be a filing of the complaint. Any citizen
may file a complaint but it has to be endorsed by a
member of the House, if the one who filed is a member
of the House, theres no more need of endorsement.
Q: How many votes are needed in order to affirm a
resolution with the Articles of Impeachment?
A: 1/3. The Articles of impeachment will be prepared and
filed with the Senate.
Q: Assuming that it was filed by a private individual and
it was endorsed by a member of the House of
Representatives, what will happen next?
A: It will be referred to the Committee on Justice. The
moment it is referred, regardless of the action, that may
be taken by that committee. It is deemed initiated.
Section 3.
(1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be
filed by any Member of the House of Representatives
or by any citizen upon a resolution or endorsement
by any Member thereof, which shall be included in
the Order of Business within ten session days, and
referred to the proper Committee within three
session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members,
shall submit its report to the House within sixty
session days from such referral, together with the
corresponding resolution. The resolution shall be
calendared for consideration by the House within ten
session days from receipt thereof.
(3) A vote of at least one-third of all the Members of
the House shall be necessary either to affirm a
favorable resolution with the Articles of
Impeachment of the Committee, or override its
contrary resolution. The vote of each Member shall
be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate
shall forthwith proceed.
(5) No impeachment proceedings shall be initiated
against the same official more than once within a
period of one year.
(6) The Senate shall have the sole power to try and
decide all cases of impeachment. When sitting for
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law)
that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is
on trial, theChief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all
the Members of the Senate.
(7) Judgment in cases of impeachment shall not
extend further than removal from office and
disqualification to hold any office under the Republic
of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution,
trial, and punishment, according to law.
(8) The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of
this section
Q: What happens the moment it is referred to the
Committee on Justice?
A: Regardless of the action that is taken by the
committee, is it deemed initiated. Once it is deemed
initiated, you cannot file a complaint within the one year
because of the one year bar rule.
Q: What about several complaints?
A: In the case of Gutierrez vs. The Ombudsman, there
were several complaints filed against her, it was made
the same year, the Supreme Court ruled that for as long
as it is simultaneously referred it is considered as one
initiation. It is possible that in one years time there are
several complaints, however, they are to be consolidated
and simultaneously referred to the committee and
considered as one initiation only.
Q: What may the Committee do once the complaint is
referred to it?
A: Once it is referred to the committee, the committee
may recommend its dismissal or it the filing.
Q: To whom it is recommended?
A: To the plenary session of the House.
Q: Within how many days does the Committee act?
A: 60 days and it is mandatory. They can be compelled
to file their report by mandamus should they fail to file it
in 60 days because it is their ministerial duty to submit
the report in 60 days.
Q: What if the recommendation is the dismissal of the
complaint? Is there any chance of that complaint
prospering? And it will be brought to the senate for
prosecution?
A: Yes, all that is needed is one-third (1/3) even if two
thirds of the members of the house are agreeable to the
dismissal. If there is still one third of the membership left,
that is against the dismissal. Still, that case is initiated
and it can be filed with the senate for prosecution.
Even if the recommendation is for filing and two thirds
are against the filing for as long as the recommendation
96
has the support of one third of the members of the house
it can still be filed with the senate.
Q: So what will happen in the Senate?
A: There will be a hearing.
Q: Who is going to preside it?
A: Ordinarily, if the impeachable official is not the
president, it would be the president of the senate.
Otherwise if the subject of the impeachment is the
President, then it would be Chief Justice of the Supreme
Court.
Q: How many votes in order to convict?
A: 2/3 votes. TN
Q: Does the requirement of publication, under the Rules
of Procedure, apply to impeachment proceedings?
A: Again in the case of Gutierrez vs. The Ombudsman,
one of her grounds for dismissal of the case was that the
rules of procedure on impeachment was not published.
She said that it violated her right to due process. Is she
correct? Supreme Court said No, she is not correct
because the requirement of publication of the rules of
procedure in congress applies only to the rules of
procedure relating to legislative inquiry not to
impeachment proceedings. So even if it is not published
there cant be a violation of due process because that is
not required under the Constitution.
Sec. 4 of the Sandiganbayan Law
Q: is this a Court?
A: Yes.
Q: Is this part of the Judiciary?
A: Yes, it is part of the Judiciary but it is not part of the
Ombudsman. It is a court not an Office, an Anti-Graft
Court.
Q: What is the role of the Ombudsman?
A: In relation to the Sandiganbayan, it becomes the
prosecutor. But there is the Special Prosecutors Office
that is under the Office of the Ombudsman that presents
evidence in the Sandiganbayan.
Q: Can a private prosecutor appear in the
Sandiganbayan?
A: No, unless the intention is to recover civil liabilities. If
theres no civil liability, then a private prosecutor has no
personality to appear in an Anti-Graft cases.
Q: What powers does The Ombudsman, have?
A: It has investigatory and prosecutorial power. When
they conduct investigation in a criminal case, they act
like a regular prosecutor.
In a criminal case, they act like a regular prosecutor
determine probable cause, whether a crime has been
committed and the person charged is probably guilty
thereof. It will be filed with the regular courts in the event
 USC WARRIOR NOTES 2014 Political Law Review (Constitutional Law) 97

they will find probable cause. It is not for them to
determine whether he is guilty or not.
In an administrative case, the Ombudsman acts like a
judge to determine the guilt or innocence of the
respondent public officer.
So many cases wherein the Ombudsman had dismissed
government officials.
Q: Is the dismissal executory?
A: Yes.
Q: Pending appeal?
A: Yes. Immediately executory. (TN)
Cases
Facura vs CA, et al., GR No. 166495, February 16,
2011. Appeals from the decisions of the Ombudsman
in administrative cases do not stay the execution of the
penalty imposed.
Ombudsman vs CA, Et al., GR NO. 1772224, January
26, 2011 The decision of the Ombudsman in
administrative cases may be executed pending appeal.
This is pursuant to the Rules of Procedure of the Office
of the Ombudsman which explicitly states that an appeal
shall not stop the decision from being executor. Also, the
power of the Ombudsman to implement the penalty is
not merely recommendatory but mandatory. Because
the Constitution says it may recommend, No, it should
be interpreted as mandatory.
the imprimatur of the Ombudsman or the deputy of the
Ombudsman; otherwise, the information can be quashed
for lack of authority on the part of the prosecutor to file
the case in court.
Again, if the case is triable before the Sandiganbayan it
should be always with the approval of the Ombudsman
or the deputy Ombudsman. (TN)
Q: How long can the Ombudsman place someone under
preventive suspension?
A: Not more than six (6) months.
Q: how long can the ombudsman place someone under
preventive suspension?
A: not more than six (6) months
Q: On recovery of ill gotten wealth, is there any
prescriptive period?
A: There is none. Walay prescriptive period, forever, but
prosecuting these persons responsible, TN 15 years
from the commission of the crime or from the time of
discovery of the crime, it prescribes ang criminal action
but not on the recovery of ill gotten wealth.
---- Nothing Follows -----

Administrative cases

Q: Who are covered by the Ombudsmans investigatory

power?
A: Tanan. Except President, Vice-President because
they are impeachable; Members of Congress because
they are subject only to the exclusive disciplinary power
of each house; Justices of the Supreme Court because
they are impeachable; and Judges and even ordinary
court personnel because supervision is exclusive to the
Supreme Court.

Criminal Cases

Q: what is the extent of the jurisdiction of the

Ombudsman?
A: All, including the senators. Even the President but
only after his tenure. Justices of the Supreme Court also
after their tenure.

Q: Does the power to prosecute or to investigate criminal

cases is exclusive to the Ombudsman?
A: No. It is concurrent with DOJ, concurrent with the
fiscals.

So you may file the anti-graft case in the fiscals office.

However, there is a condition to that, if the case is within
the jurisdiction of the Sandiganbayan, it has to be with