Political Notes

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) 2
I. The Philippine Constitution Proclamation No. 3 by Cory Aquino. And then finally you
A. Constitution: definition, nature and concepts have the 1987 Constitution that was made by the 1986
We start with the Constitutions definition, concept. You Constitutional Commission, ratified and took effect on 2
have mastered that: what a Constitution is; the different February 1987. Case in point, you have the de Leon v.
kinds of Constitution according to its origin, according to Esguerra case.
its form, according to the manner of changing it and
according to the form of government that is established. Kinds of Constitution According to Source
1. Written Constitution - a constitution whose
So for example, lets have the definition of a Constitution sources are found in one single instrument.
as a general concept. It is the highest fundamental law 2. Unwritten Constitution - not necessarily not
of the land upon which all activities of the government reduced in writing the sources could still be
are based on. And so therefore in case of a conflict written, however the sources are scattered.
between a statute and the Constitution always the
Constitution prevailing over the statute, as a general rule The kind of Constitution that you have is a Written
because sometimes it would depend on the system of Constitution where all provisions are found in one single
the government. Where there is the supremacy of the instrument such as the 1987 Constitution.
parliament, in case of a conflict between a statute and
the Constitution, the statute is not necessarily declared Kinds of Constitution According to the Manner of
unconstitutional. Nonetheless the parliament act may still Changing
be existing without being declared as unconstitutional. 1. Rigid - is when you follow a specific procedure
That goes to show an implication of the principle that the on how to change the Constitution, amend or
Constitution always prevails over any other law that may revise it.
be passed by the government it could be the 2. Flexible - is when you dont follow any
parliament or it could be an administrative body in so far procedure and you can effect a change to the
as rules and regulations or even the president in some
Constitution.
cases as regards to his presidential decrees,
proclamations or executive orders.
So then you have master what kind of constitution you
have. Definitely yours is a Rigid Constitution; so you
Kinds of Constitution According to Origin
master how you propose amendments or revisions to the
1. Conventional or Enacted Constitution -
Constitution.
deliberately made at a definite period of time
2. Cumulative or Evolutionary Constitution - This has come out in the BAR exams several kinds.
When it is a result of an evolution of history of Especially in the MCQ.
the activities the people of the country and of the
government in particular Q: (BAR) What is first the difference between
3. Fiat or Granted Constitution - it is a amendment and revision?
Constitution made by one country for another A: Amendment is when you only propose certain
usually its by way of a treaty of peace, after one changes to certain provisions or portions or parts of the
territory/country is defeated by another. So a Constitution you do not overhaul it. Even if you only
sovereign country would prepare a Constitution change a certain portion however it changes the
for a defeated territory philosophy or the foundation of the Constitution then it is
not just an amendment but a revision.
Now, the more important part there is being able to
distinguish what kind of constitution that you have Lets have an example. If you change the term of office
according to that form or kind of constitution. Yours is of the president, its just an amendment, but if you
definitely a Conventional or Enacted Constitution has change the system of the government from presidential
been as such since we had the 1935 Constitution, 1973 to parliamentary definitely it is a revision because you
and the 1987 Constitution. So it was deliberately made, practically change the foundation of the government
for example, in so far as the 1935 Constitution by the the system of the government.
1934 Con-Con ratified by the people on 14 May 1935.
And then you have the 1973 Constitution that was made Q: Why is it important to know the difference between an
by the 1971 Con-Con and it was declared to have been amendment and a revision?
validly ratified on 17 January 1973 by Proclamation 1102 A: Because the matter of proposal also differ. (TN) In so
by Mr. Marcos. And then you have the freedom far as proposal to amend or revise a Constitution, there
Constitution of course, it was made by virtue of
are only certain individuals who are authorized to do the

proposal. Q: How do people initiate amendments to the
Constitution?
Q: Who can propose an amendment to the Constitution? A: Take note of the following cases that are relevant:
A: First of all, you have Congress. And then you have a
Constitutional convention. And of course you have Santiago v. Ramos
people through Initiative. Lambino v. COMELEC
Q: In revision, can people propose? Q: First of all, you should gather how many signatures of
A: No, only Congress and the Constitutional convention registered voters?
can make the proposal if it is a revision. A: 12% of the total registered voters of which, each
legislative district is represented by at least 3% of the
See the difference here? Lets go to the details. registered voters. Dont just simply say 12%. It should be
12% and 3%. They must concur.
In so far as an amendment proposal or revision,
Congress can do so. (TN) Additional requirements are discussed in the
Lambino case.
Q: What is the procedure? How many votes are
needed? Q: That it should be the petition that is signed by the
A: You need votes of both houses, voting separately. registered voters, why?
Although the Constitution says of all members of A: Because after all, they are supposed to be the
Congress, it didnt say voting separately. But there is an authors of the petition to propose an amendment to the
interpretation although there is no jurisprudence that it Constitution, and therefore they should sign the petition
should be interpreted as voting separately because itself. That is the requirement. So, you would have
according to some Constitutionalists it may be an copies according to as many petitioners, if they are to be
oversight on the part of the members of the Con-Comm the authors of a petition to propose amendments or
just copying the 1973 Constitution because then there changes to the Constitution.
was no problem because the legislature was unicameral.
It is a problem now because yours is bicameral. So it Q: And whats the reason?
should be understood as voting separately. So that, A: In both cases, an initiative failed. In the Santiagos
even you get votes from the House of case, the SC was saying that RA 6735 (the law providing
Representatives, however you dont get the same for the manner of initiative, the implementing rule
number of votes in the same number of votes in Senate, regarding on people initiating amendments to the
there cannot be any proposal for amendments to the Constitution), is insufficient to provide a procedure
Constitution coming from congress. because if you read the law, it does not provide for
details it does not even authorize the COMELEC to
Another manner of changing it, you have a Constitutional promulgate the rules, unlike in initiative on statute and
Convention both also an amendment or revision. on local legislation, which are very specific. Initiative on
amendments to the Constitution however was declared
Q: Who can initiate? Who will decide whether to call a by the SC to be insufficient.
Con-Con? Or it would be Congress to act as constituent
assembly? Nonetheless, in the Lambino case, which was the
A: That is a discretion of congress. (BAR) TN of the subsequent case, the SC was saying if people indeed
voting, the requisite vote. Directly, if Congress will act as would want to propose changes, we cannot stop them. It
Constituent Assembly . The calling of a Con-con, you is a political discretion in their sovereign capacity, should
need only 2/3. And if Congress is undecided and will they decide. But the initiative that was initiated by
prefer for the people to decide on it, they would then Lambino group on amending the Constitution during the
submit the issue to the people in a referendum. Arroyo administration still failed because they failed to
prove to the SC the number of petitioners signing
Q: And that will require how many votes? because the copies would not reflect to the number of
A: Majority. registered voters supposedly initiating the amendments
to the Constitution. You need 12% and they were saying
Q: How about the people? that is equivalent to a number of voters, like 11 million
A: They can only propose amendments but not revision. for example however the copies of the petition was much
And it is through the process of initiative only initiative lesser than the number of registered voters. And so the
on the Constitution not referendum, but initiative. SC was saying, it has not proven that it has obtained the
requisite number of percentage of registered voters Q: The 1987 Constitution consists only of how many
signing the petition as it is required by the law that would articles?
initiate amendments to the Constitution. A: Eighteen (18) articles.
Q: After the proposal, what happens next? We start with the Constitutions definition, concept. You
A: Youll have the submission of the proposal to the have mastered that: what a Constitution is; the different
people for further study and investigation. The only kinds of Constitution according to its origin, according to
principle that you must remember under this particular its form, according to the manner of changing it and
stage of the change of the Constitution is that there according to the form of government that is established.
cannot be a piecemeal submission of a proposed
amendments to the Constitution. So for example, lets have the definition of a Constitution
Piecemeal submission is prohibited. It should be the as a general concept. It is the highest fundamental law
whole thing so that the people can fully understand the of the land upon which all activities of the government
proposed changes or amendments. are based on. And so therefore in case of a conflict
between a statute and the Constitution always the
Q: After the submission of the proposal to the people, Constitution prevailing over the statute, as a general rule
what will be the next step to follow? because sometimes it would depend on the system of
A: There is now the ratification. the government. Where there is the supremacy of the
parliament, in case of a conflict between a statute and
Q: In the ratification, you will have a plebiscite. For the the Constitution, the statute is not necessarily declared
amendments to be effective, how many votes are unconstitutional. Nonetheless the parliament act may still
needed? be existing without being declared as unconstitutional.
A: Its plurality only. Majority of the votes cast during the That goes to show an implication of the principle that the
plebiscite. Constitution always prevails over any other law that may
be passed by the government it could be the
Q: And when does the Constitution take effect, under parliament or it could be an administrative body in so far
section 22 of article XVIII? as rules and regulations or even the president in some
A: As it was declared by the SC in the Esguerra case, cases as regards to his presidential decrees,
the Constitution, any amendments thereto or revision proclamations or executive orders.
shall take effect only upon ratification by the majority
votes, not upon the declaration by the president that the Kinds of Constitution According to Origin
Constitution was validly ratified. 1. Conventional or Enacted Constitution -
deliberately made at a definite period of time
That is in so far as the kind of Constitution that you have 2. Cumulative or Evolutionary Constitution -
which is rigid. When it is a result of an evolution of history of
the activities the people of the country and of the
The other form of Constitution will depend on the kind of government in particular
government that you established. Of course, whatever 3. Fiat or Granted Constitution - it is a
government that you establish is just reflective of the
Constitution made by one country for another
kind of Constitution that you have, because after all the
usually its by way of a treaty of peace, after one
basis of the government and its activities is the
territory/country is defeated by another. So a
Constitution.
sovereign country would prepare a Constitution
So if you have a republican government that means your for a defeated territory
Constitution is republican. If you have a democratic
government that means your Constitution is democratic, Now, the more important part there is being able to
and so on and so forth. distinguish what kind of constitution that you have
according to that form or kind of constitution. Yours is
Then we go to the different parts of the Constitution. definitely a Conventional or Enacted Constitution has
First, you have the Constitution of Government, the been as such since we had the 1935 Constitution, 1973
Constitution of Liberties and then you have the and the 1987 Constitution. So it was deliberately made,
Constitution of Sovereignty. for example, in so far as the 1935 Constitution by the
1934 Con-Con ratified by the people on 14 May 1935.
On the Constitution of government, that pertains to the And then you have the 1973 Constitution that was made
provisions that relate to the structure, functions and by the 1971 Con-Con and it was declared to have been
operations of the government. validly ratified on 17 January 1973 by Proclamation 1102
by Mr. Marcos. And then you have the freedom Q: The 1987 Constitution consists only of how many
Constitution of course, it was made by virtue of articles?
Proclamation No. 3 by Cory Aquino. And then finally you A: Eighteen (18) articles.
have the 1987 Constitution that was made by the 1986
Constitutional Commission, ratified and took effect on 2 1. Constitution of Government - as reflected in
February 1987. Case in point, you have the de Leon v. the Constitution, you have Articles VI, VII, and
Esguerra case. VIII the legislative, executive and judicial
departments. Of course you have other
Kinds of Constitution According to Source Constitutional Bodies, such as the Constitutional
1. Written Constitution - a constitution whose Commissions. And then you have the principles
sources are found in one single instrument. the underlying principles in the operation of the
2. Unwritten Constitution - not necessarily not government. So you have general principles like
reduced in writing the sources could still be Article II, you have the economic provisions, the
written, however the sources are scattered. general and transitory provisions and all.
2. Constitution of Rights - such as the Bill of
The kind of Constitution that you have is a Written
Rights, you have Article III. that is your charter
Constitution where all provisions are found in one single
of liberty.
instrument such as the 1987 Constitution.
3. Constitution of Sovereignty - that is giving the
Kinds of Constitution According to the Manner of power to the people on how to make
Changing amendments to the Constitution.
1. Rigid - is when you follow a specific procedure TN: Preamble does not form part of the Constitution, it
on how to change the Constitution, amend or is not an essential part. You can have a Constitution
without a preamble.
revise it.
2. Flexible - is when you dont follow any
C. Amendments and revisions
procedure and you can effect a change to the
This has come out in the BAR exams several kinds.
Constitution.
Especially in the MCQ.
So then you have master what kind of constitution you
Q: (BAR) What is first the difference between
have. Definitely yours is a Rigid Constitution; so you
amendment and revision?
master how you propose amendments or revisions to the
A: Amendment is when you only propose certain
Constitution.
changes to certain provisions or portions or parts of the
Constitution you do not overhaul it. Even if you only
The other form of Constitution will depend on the kind of
change a certain portion however it changes the
government that you established. Of course, whatever
philosophy or the foundation of the Constitution then it is
government that you establish is just reflective of the
not just an amendment but a revision.
kind of Constitution that you have, because after all the
basis of the government and its activities is the
Lets have an example. If you change the term of office
Constitution.
of the president, its just an amendment, but if you
change the system of the government from presidential
So if you have a republican government that means your
to parliamentary definitely it is a revision because you
Constitution is republican. If you have a democratic
practically change the foundation of the government
government that means your Constitution is democratic,
the system of the government.
and so on and so forth.
Q: Why is it important to know the difference between an
B. Parts amendment and a revision?
Then we go to the different parts of the Constitution. A: Because the matter of proposal also differ. (TN) In so
First, you have the Constitution of Government, the far as proposal to amend or revise a Constitution, there
Constitution of Liberties and then you have the are only certain individuals who are authorized to do the
Constitution of Sovereignty. proposal.
On the Constitution of government, that pertains to the Outline of Steps in Amendments

provisions that relate to the structure, functions and 1. Proposal
operations of the government.
Q: Who can propose an amendment to the Constitution?
A: First of all, you have Congress. And then you have a Santiago v. Ramos
Constitutional convention. And of course you have Lambino v. COMELEC
people through Initiative.
Q: First of all, you should gather how many signatures of
Q: In revision, can people propose? registered voters?
A: No, only Congress and the Constitutional convention A: 12% of the total registered voters of which, each
can make the proposal if it is a revision. legislative district is represented by at least 3% of the
registered voters. Dont just simply say 12%. It should be
See the difference here? Lets go to the details. 12% and 3%. They must concur.
In so far as an amendment proposal or revision, (TN) Additional requirements are discussed in the
Congress can do so. Lambino case.
Q: What is the procedure? How many votes are Q: That it should be the petition that is signed by the
needed? registered voters, why?
A: You need votes of both houses, voting separately. A: Because after all, they are supposed to be the
Although the Constitution says of all members of authors of the petition to propose an amendment to the
Congress, it didnt say voting separately. But there is an Constitution, and therefore they should sign the petition
interpretation although there is no jurisprudence that it itself. That is the requirement. So, you would have
should be interpreted as voting separately because copies according to as many petitioners, if they are to be
according to some Constitutionalists it may be an the authors of a petition to propose amendments or
oversight on the part of the members of the Con-Comm changes to the Constitution.
just copying the 1973 Constitution because then there
was no problem because the legislature was unicameral. Q: And whats the reason?
It is a problem now because yours is bicameral. So it A: In both cases, an initiative failed. In the Santiagos
should be understood as voting separately. So that, case, the SC was saying that RA 6735 (the law providing
even you get votes from the House of for the manner of initiative, the implementing rule
Representatives, however you dont get the same regarding on people initiating amendments to the
number of votes in the same number of votes in Senate, Constitution), is insufficient to provide a procedure
there cannot be any proposal for amendments to the because if you read the law, it does not provide for
Constitution coming from congress. details it does not even authorize the COMELEC to
promulgate the rules, unlike in initiative on statute and
Another manner of changing it, you have a Constitutional on local legislation, which are very specific. Initiative on
Convention both also an amendment or revision. amendments to the Constitution however was declared
by the SC to be insufficient.
Q: Who can initiate? Who will decide whether to call a
Con-Con? Or it would be Congress to act as constituent Nonetheless, in the Lambino case, which was the
assembly? subsequent case, the SC was saying if people indeed
A: That is the discretion of Congress. (BAR) TN of the would want to propose changes, we cannot stop them. It
voting, the requisite vote. Directly, if Congress will act as is a political discretion in their sovereign capacity, should
Constituent Assembly . The calling of a Con-con, you they decide. But the initiative that was initiated by
need only 2/3. And if Congress is undecided and will Lambino group on amending the Constitution during the
prefer for the people to decide on it, they would then Arroyo administration still failed because they failed to
submit the issue to the people in a referendum. prove to the SC the number of petitioners signing
because the copies would not reflect to the number of
Q: And that will require how many votes? registered voters supposedly initiating the amendments
A: Majority. to the Constitution. You need 12% and they were saying
that is equivalent to a number of voters, like 11 million
Q: How about the people? for example however the copies of the petition was much
A: They can only propose amendments but not revision. lesser than the number of registered voters. And so the
And it is through the process of initiative only initiative SC was saying, it has not proven that it has obtained the
on the Constitution not referendum, but initiative. requisite number of percentage of registered voters
signing the petition as it is required by the law that would
Q: How do people initiate amendments to the initiate amendments to the Constitution.
Constitution?
A: Take note of the following cases that are relevant: 2. Submission to the people for study
Q: After the proposal, what happens next? only of Art. II because is not self executing. And our
A: Youll have the submission of the proposal to the economic provisions as well. Most of them are not self
people for further study and investigation. The only executing. In a recent decision of the Supreme Court, it
principle that you must remember under this particular made emphasis on some provisions there that are self
stage of the change of the Constitution is that there executing and therefore need not require any legislation.
cannot be a piecemeal submission of a proposed But generally, it is self executing.
amendments to the Constitution.
Piecemeal submission is prohibited. It should be the Finally, you dont apply the provisions of the Constitution
whole thing so that the people can fully understand the retroactively, they only have prospective application
proposed changes or amendments. unless it does not conflict with the previous Constitutions
then it may be applied retroactively. General rule is,
3. Ratification prospective application.
Q: After the submission of the proposal to the people, E. General provisions
what will be the next step to follow?
PREAMBLE (MEMORIZE)
A: There is now the ratification.
Q: In the ratification, you will have a plebiscite. For the We, the sovereign Filipino people, imploring the aid
amendments to be effective, how many votes are of Almighty God, in order to build a just and humane
needed? society and establish a Government that shall
A: Its plurality only. Majority of the votes cast during the
embody our ideals and aspirations, promote the
plebiscite.
common good, conserve and develop our patrimony,
Q: And when does the Constitution take effect, under and secure to ourselves and our posterity the
section 22 of article XVIII? blessings of independence and democracy under the
A: As it was declared by the SC in the Esguerra case, rule of law and a regime of truth, justice, freedom,
the Constitution, any amendments thereto or revision love, equality, and peace, do ordain and promulgate
shall take effect only upon ratification by the majority this Constitution.||| (1987 Constitution [1987])
votes, not upon the declaration by the president that the
Constitution was validly ratified. The question is more on technicalities side of the
preamble. As i have said earlier, it is not an intergral
That is in so far as the kind of Constitution that you have part. It is not even important and necessary because it
which is rigid. 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
D. Self-executing and non-self-executing provisions
make laws it must be in accordance of the purpose
Q: What are the general principles on the interpretation
forwhich the Constitution was adopted. Similarly to the
of the Constitution.
President in the implementation of the laws if he doesnt
A: The general rule is that it is mandatory, you have to understand how to implement or of the purpose of
follow them. It is not just directory, unless the law itself Congress then he may always refer to the preamble. As
provides otherwise that it is merely directory or by a well as the Supreme Court in interpreting the provisions
Supreme Court interpretation. And then, it is self- of the Constitution and laws passed by Congress. In
executing. You dont need legislation inorder to applying it to actual cases, it may be guided of the
implement them. It can be executed right away without purposes enumerated in the preamble. If you read the
need of implementing rules as a general rule. As preamble, it states there WE, THE SOVEREIGN
exception to that is ARTICLE II which is not self- FILIPINO PEOPLE indicating therefore the source of
executing. You need legislation inorder to implement. TN sovereignty and authors of the Constitution, the
of the case of Taada vs Angara. Suffice to say that as a sovereign filipino people. IMPLORING THE AID OF
general rule it is self- executing. Later you would learn ALMIGHTY GOD and this has been questioned saying
from the decisions of the Supreme Court where it that we are suppose to be a counrty with a separation of
emphasized the fact that there is no need of a law or the church and the state where it follow non
legislation inorder to implement the provisions if the establishment of a religion.
Constitution. You could go to court and seek judicial
Q: would there be a violation of the statement to the
relief. If it is not self executing that cannot then be the
Consitution?
provisions of the Constitution especially Art. II cannot be
used as judicial basis for judicial action. Meaning, you A: No. The preamble is more of a description of the kind
cannot question the validity a particular act of the of people that we are. Rather than imposing the belief in
government if there is no law prohibiting it on the basis God in our establishing of a government or in our
implementing the provisions of the Constitution. So it just to protect our natural resources that are found in the
a mere declaration that we implore the aid of the archipelagic waters. TN that our territory is an
Almighty God. We are not obliged to believe in God. If archipelago and therfore if you follow the ordinary
you are an atheist you cannot use that to question the principle of international law in determining territorial
validity of the Consitution. seas then you will be creating pockets of international
waters within our territory.
And then you have the enumeration of the purposes.
Just go over with the purposes. You can say that there is 1. Archipelagic doctrine
redundancy because these principles are already
implied in the subseqeunt provisions of the Consitution. We cannot afford to have that situation so we adopted
another doctrine which is the Archipelagic Doctrine.
II. General Considerations
A. National territory It means waters around, between and connecting the
ARTICLE I- NATIONAL TERRITORY. (TN, ***) islands regardless of breadth and dimensions are
considered as inland waters, internal waters treated like
The national territory comprises the Philippine canals, rivers or swamps. There is no controversy there
archipelago, with all the islands and waters embraced on territorial sea to the extent of jurisdiction beacuse
therein, and all other territories over which the they are treated as internal waters. In the 1987
Philippines has sovereignty or jurisdiction, consisting constitution we adopted the defintion of national territory
with some changes in some phrases. Our conflict with
of its terrestrial, fluvial, and aerial domains,
Malaysia over Sabbah, inorder to erase that thought of
including its territorial sea, the seabed, the subsoil,
annoyance or irritation, we erased the phrase belonging
the insular shelves, and other submarine areas. The to the Philippines by historic/legal title instead we have
waters around, between, and connecting the islands in all other territories in which the Philippines has
of the archipelago, regardless of their breadth and sovereignty or jurisdiction. So whatever the reason is of
dimensions, form part of the internal waters of the the definiton of the national territory that will bind us and
Philippines.||| (1987 Constitution [1987]) not necassarily the neighboring countries.
Master it because of the recent issues. In Scarborough The national territory comprises the Philippine
shoal , what we are concerned of are the living and non- archipelago, with all the islands and waters embraced
living forces in the premises as part of our Exclusive therein, and all other territories over which the
Economic Zone. It is not part of out territory but part of Philippines has sovereignty or jurisdiction, consisting of
EEZ. This is explained in our definition of National its terrestrial, fluvial and aerial domains, including its
Territory. You should TN of this that the definiton of territorial sea, the seabed, the subsoil, the insular
National Territory is not binding in the international shelves, and other submarine areas. The waters around,
sphere. It is not binding upon other countries because it between, and connecting the islands of the archipelago,
is only a municipal law. This is important for the regardless of their breadth and dimensions, form part of
purposes of implementing our laws. Identifying our the internal waters of the Philippines
boundaries or territorial boundaries, that is the most
Q: What is an archipelago?
important part because how would we know if our laws
are applicable.
A: A group of islands surrounded by the sea waters or it
We have to include in the definition of our national could be a body of water studed with islands. The
territory for some reaons. In the 1935 Constiution, we general concept of archipelago is the latter
had the definition because we were too afraid that the defintion,body of sea water studed with several islands.
american government might just retain some portions of A territory may consist of several archipelagoes or just
our territory. Our definition of national territory in 1935 one archipelago. Ours is just one consisting of 7,106
Constitution was based on the Treaty of Paris. It when low tide and 7,100 when high tide. TN of the
definiton of an archipelago in the UNCLOS,
enumerates all and specified the delineation and
boundaries of our territory including Marianas Islands in
Guam. Then there was a different reason why we ART. 46. USE OF TERMS
adopted a definition in the 1973 Constitution. This is
because if we will rely merely on the Treaty of Paris as (a) "archipelagic State" means a State constituted
our title of what comprises as the Philippine National wholly by one or more archipelagos and may include
Territory it would exclude the Batanes Islands. Because other islands;
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
(b) "archipelago" means a group of islands, including TN: Anything pertaining to maritime jurisdiction or
parts of islands, interconnecting waters and other domain, it is governed by the UNCLOS. Always
natural features which are so closely interrelated that remember that. Read it and you will top the bar. Thats
such islands, waters and other natural features form not only applicable in political law but as well as in public
an intrinsic geographical, economic and international law.
Q: These islands are mostly rocks. Why are we

We have big islands Luzon, Visayas and Mindanao.
interested in them?
Then we have Palawan, the West Philipinnes Sea and
you can also find the islands being the subject of the A: Were interested over the seawaters surrounding
controversy, Kalayaan group of Island and the these islands, as bases for our claim over the maritime
Scarborough shoal. domain. They are very rich in resources. They are part of
the Malampaya.
Q: How did we acquire these islands, not particluarly the
main archipelago? Q: What is the basis of China in asserting claim over
these islands?
A: We acquired the islands by virtue of transfer except
for Batanes Islands. Batanes islands were acquired by A: Their basis is Exclusive Economic Zone. China
long occupation. The rest by Treaty of Paris. And then claims that there is overlapping of Exclusive Economic
there were other islands that were added Zone, and based from their EEZ, that is still covered
from Hainan island.
Q: What are other islands added to the Philippines
by virtue of Treaty of Washington and US-British Treaty? TN: Insofar as our claim over the seawater which
used to be just internal waters, now we have to
A: Maxi islands, Turtle islands, Cagayan de Sulu,
determine the seawaters and the bases of EITHER
Sibuto islands
theyre part of the EEZ or its territorial seas.
TN: If you are to determine the archipelago, it looks
Q: What is the purpose of RA 9522?
like a triangle, until we have the two islands added the
Scarborough shoal and the KGI. KGI to some extent is A: In gist RA 9522 defines the general
habitable, but Scarborough shoal is not. At any rate, it is configuration of the archipelago including the extended
not fit for human habitation or occupation. This continental shelf and the EEZ to make it more compliant
information is significant taking into consideration the to UNCLOS.
present controversy with China.
Q: What is TERRITORIAL SEA?
Q: What is the status of these islands today in
relation to RA 9522 (March 10, 2009)? A: Under ordinary circumstances, if you have this
continent, its only 12 nautical miles from the normal
A: They used to be part of the archipelago until we base line. You draw it from the normal base line of the
were pressured into redefining, redrawing our coastline of a territory.
archipelago so that they will be more or less consistent
with the provisions of the UNCLOS. By virtue of this law, Q: BUT SOMETIMES, there are continents that are
these two other territories that we are claiming as part of submerged, and there may be an extension of the inland
our archipelago, such as the Scarborough shoal and the which is submerged that goes beyond the 12 NM. Is that
KGI were EXCLUDED from the main archipelago and part of the territory?
are ONLY TREATED AS REGIME OF ISLANDS. So in A: Answer is NO, only up to 12 NM. BUT, we have
the WATERS SEPARATING these two from the main sovereign rights over the water beyond that 12 NM up to
archipelago WILL NOT BE ANYMORE INCLUDED IN another 12 NM from the end of the 12 NM of territorial
THE INTERNAL WATERS DEFINITION OR seas so 24 NM from the normal base line. Thats what
ARCHIPELAGIC WATERS. The water around it, to we call EXTENDED CONTINENTAL SHELF
determine its claim over the seawaters, is based on PRINCIPLE.
Normal Base Line, not Exclusive Economic Zone.
Q: What is the purpose of Extended Continental
The significance there, the waters separating Self Principle?
these islands from the main archipelago will no longer be
considered internal waters. That is the implication. And A: For implementing our laws pertaining to sanitary,
weve lost therefore a number of nautical miles of customs, fiscals that would go beyond 24 NM from the
seawaters because of the exclusion. It used to be normal base line or 12 nm from the end of territorial
rectangular, now it is only triangle. seas.
Q: What is EXCLUSIVE ECONOMIC ZONE? Philippines has consistently claimed sovereignty over
Where is it reckoned from? the KIG and the Scarborough Shoal for several
decades, these outlying areas are located at an
A: It is reckoned from normal base line of adjacent appreciable distance from the nearest shoreline of the
territory, 200 NM. It means that beyond 12 NM onwards Philippine archipelago, such that any straight baseline
to 200 NM, its not part of our territory BUT we have loped around them from the nearest basepoint will
EXCLUSIVE RIGHTS over the seawaters including the inevitably "depart to an appreciable extent from the
living and non-living resources found therein to Exploit, general configuration of the archipelago."||| (Magallona
Develop and Utilize (EDU). v. Ermita, G.R. No. 187167, August 16, 2011).
Q: Is it provided in the Constitution? Is it merely TN: Thats why if you extend it, the configuration
directory? Or self-executing? becomes rectangular instead of triangular which is the
A: The Constitution is very clear on this and this is original configuration of the archipelago under the Treaty
self-executing according to the Supreme Court, that of Paris.
because it is exclusive, it cannot be shared with anyone, Q: What is our basis of our claim over Scarborough
not even overlapping. That is your EXCLUSIVE right. Shoal?
Q: There is another principle on overlapping. What A: Primarily on discovery.
is the basis for this principle?
TN: But China claims that they have discovered it as
A: It is based on equality, equity, solution in the th
early as 18 century. Remember that we only started
determination of extent of jurisdiction proportionate on claiming after the WWII.
how big your island is, adjacent to the EEZ It is not
totally equal but based on equity. IMPORTANT: At any rate, the more important basis for
our claim is our EEZ. Part of our 200 EEZ. Read
TN: But for as long as there is no overlapping, there Carpios paper.
cannot be sharing in the exploration. What China wants,
the least, is to share the exploration of the national Q: What are our rights over our Internal Waters,
resources including Malampaya. and Extended Continental Shelf?
Q: Is the Philippines allowed to share the A: Our claim over the seawaters separating the
exploration of our islands? islands, there is no doubt that if we follow the
archipelagic doctrine that theyre part of our INTERNAL
A: That is contrary to the Constitution if we agree to WATERS, PART OF OUR TERRITORY. Our jurisdiction
that. Why? Read again the constitution, it says: is only up to the 12 NM which means within 12 NM as
exclusive rights of Filipino citizen on marine wealth. We part of our territory which we described as territorial
may only hire them as contractors to provide us financial seas, we can limit foreign vessel navigation and over-
and technical assistance just like Shell, but there cannot flight.
be any sharing.
A: Insofar as the extended continental shelf, we
Q: In the case of (Magallona v. Ermita, G.R. No. have up to 24 NM from the normal baseline. Beyond the
187167, August 16, 2011), RA 9522 was challenged on 12 NM, although still within the continental shelf, it is
the ground that by adopting this law, in effect, we are allowed as part of the right of way, the same with
deprived of our rights to explore the resources over the Exclusive Economic Zone.
waters separating these islands such as KGI and the
Scarborough shoal from the main archipelago. How was Q: From where should the EEZ be based or drawn?
this resolved by the Supreme Court?
A: In the drawing of the EEZ as part of the territory,
A: The Supreme Court ruled that Had Congress in always remember that it has to be drawn from the
RA 9522 enclosed the KGI and Scarborough Shoal as normal baseline along the coastline of an island or
part of the archipelago, adverse legal effects would have continental shelf. NORMAL BASELINE of an island that
ensued. The Philippines will have committed breach of is HABITABLE,
the two provisions of UNCLOS. First, Article 47(3)
thereof requires that the drawing of such baseline shall Q: What do you mean by HABITABLE?
not depart from any appreciable extent from the general A: That that can be inhabited, or can sustain on its
configuration of the archipelago. Article 47 of the same own economic growth.
provision provides that the length of the base line shall
not exceed 100 NM same for 3% of the total number of Q: In relation to Chinas claims, will the EEZ apply?
baselines which can be up to 125 NM. Although the
A: That EEZ of 200 NM cannot apply if your basis claim it as part of the national territory. Therefore, our
is a reef or rocks. China cannot make a claim because rephrasing of the provisions of the Constitution relating
their bases are the Nine-dash lines and Paracels that on this score, remember the original provision saying:
cannot be occupied. If you live there, you need to and all other territories belonging does not actually
depend on the food that is being brought there. But on change the scenario or our right to claim territories later
their own, they cannot sustain economically. So if that is in the future if we become a superpower as part of the
the basis of the EEZ. That is not allowed. national territory as long as it based on historic right or
legal title.
TN: Our archipelago is sustainable economically; we
can survive on our own. It is obviously habitable. If we We are referring to Sabah. Actually we are not dropping
follow that, we have better right for EEZ where you can our claim over Sabah because you cannot deny the fact
find the Scarborough Shoal. that this Sultan of Sulu has proprietary rights over Sabah
or North Borneo.
TN: Another point that we should take note is that
this is now being subjected to arbitration under the You must be able to distinguish between Sovereign
UNCLOS. China however refused to submit and opted Rights and Proprietary Rights. Kung proprietary rights
out from that arbitration saying that being a sovereign referring to property rights of a particular individual or
state it is discretionary on their part whether or not to entity. Kung mu ingon ka ug sovereign rights it pertains
submit itself to arbitration. to governance and you are making it as part of the
Philippine territory.
Q: Is it correct for China to refuse?
As it is now, hand offs ang government over making it as
A: Answer is NO, because they are signatory to the part of the Philippine territory. We are not asserting
UNCLOS. When they signed in the UNCLOS, they sovereign rights but we are not also disclaiming the
consented to follow the provisions of the UNCLOS. proprietary rights of the Sultan of Sulu over Sabah.
In which case, they have given their consent impliedly Kung ikaw tag-iya ug isla sa Sabah, what you can claim
and if they have given their consent, they are subjected is only your proprietary rights and as such, part of your
to the jurisdiction of UNCLOS Arbitration. rights over the property is to possess it. Obviously.
TN: The jurisdiction of the UNCLOS. Its jurisdiction is Regardless under whose government or who would it
limited only to disputes involving sea waters of the be.
continental shelf and the Exclusive Economic Zone NOT But when we talk about sovereign rights, it now pertains
Territorial Seas. to governance where you implement your law and you
Kung mu ingon kag territorial imung dispute involving the establish a government there and making it as part of
territorial seas or the maritime domain, adto na siya, ang the Philippine government, thats a different story.
application kay General Principles of International Law. As of now, we are avoiding the issue of sovereign rights
ICJ has jurisdiction over that. over Sabah but we are also not denying the rights of the
But when we say maritime dispute involving claims over Sultan of Sulu, the proprietary rights over the island
sea waters relating to the continental shelf, extended because it was established that indeed once upon a time
continental shelf or exclusive economic zone this is that Sabah was owned by the Sultan of Sulu before the
under the jurisdiction of the UNCLOS. Im just discussing definition of anybodys territory. In fact, it was rented out
this in relation to the claims of China over the Regime of to the British East India Company because Malaysia was
Islands. under UK. And when it was granted independence, it
was turned over to the Malaysian government instead to
Aside from the Regime of Islands, you also have other the Sultan of Sulu. Understandably, because most of the
territories over which the Philippines have jurisdiction or residents are Malaysians. And that was the start of the
sovereignty. Jurisdiction we mean that we enforce our claim of Malaysia over the same. Anyhow, we have
own laws, having a government and implement our own exerted our efforts to claim it both based on legal and
laws. extralegal methods. Legally, because of the refusal of
Malaysia to submit to the jurisdiction of the ICJ. The
Q: Sovereignty, is it necessary that there should be a
least that they did was to hold a referendum, asking
government in the territory, Philippine government in
people if they want to become part of the Philippine
order for it to be considered as part of the Philippine
territory which obviously was refused blatantly and so
National Territory?
this prompted probably the government to create a
A: No. for as long as there are sovereign rights based on terrorist group in order to infiltrate the territory. However
historic right or legal title. That would be sufficient to it was discovered and all of these terrorists were
massacred. That was the Jabidah Massacre that led to waters is for everybodys use. The subsoil you can go as
our dropping of our claim over Sabah. Otherwise, if as you can if you have the capacity.
Malaysia was ready to declare war against us. That was
the controversy involving Sabah. You have other sovereign areas: the insular shelves, the
trench and etc just go over with that. The more important
As I have said, the provisions of the Constitution does there is the extended continental shelf.
not bar us from claiming it in the future when we become
so powerful because we are so rich and maybe we can On internal waters:
just buy Malaysia or just invade Malaysia and Sabah and Q: what do you use as basis or method in determining
establish a government there and sent all our prisoners archipelagic waters? [BAR]
to Sabah.
A: You used the straight-line method. Remember the
Marianas Islands and Guam, our claim is based on the straight-baseline method wherein you connect the
Treaty of Paris. It is not so potent, our basis of our claim. outermost islands and all the waters inside are
So what happened, it just fizzled out. There was a considered as internal waters. Outside, considered as
referendum there and they refused to become part of our part of the territorial seas up to 12 NM subject to
territory and they rather be under the trusteeship of US. archipelagic plates, in other words, right of way.
Lets talk about Bangsamoro. Read the concept of Regime of Islands
Q: How does it affect our territory? Hence, far from surrendering the Philippines' claim
A: It does not at all affect our territorys definition. Its just over the KIG and the Scarborough Shoal, Congress'
delineating, defining what is considered to be the region decision to classify the KIG and the Scarborough Shoal
to be governed by Muslims in accordance with their as "'Regime[s] of Islands' under the Republic of the
culture, their customs and their traditions. As long as if Philippines consistent with Article 121" of UNCLOS III
they are not a sub-State, there can be no violation of the manifests the Philippine State's responsible observance
definition of the national territory neither can there be of of its pacta sunt servanda obligation under UNCLOS III.
the provision of the Constitution regarding having one Under Article 121 of UNCLOS III, any "naturally formed
government because still they will be under the national area of land, surrounded by water, which is above water
government but the control of the national government at high tide," such as portions of the KIG, qualifies under
over them is lesser as compared to local governments. the category of "regime of islands," whose islands
It is some kind of federal system of government wherein generate their own applicable maritime
they are considered supreme in their own sphere and zones.|||(Magallona v. Ermita, G.R. No. 187167, August
their laws and management of affairs is based on their 16, 2011)
customs and traditions. Q: What are regime of islands?
Will see until we read the Organic Law creating it and A: They consist of islands or naturally formed areas of
until the Supreme Court will resolve the matter because lands surrounded by water that remains above water
definitely there will be a challenge because I think it will during high tide.
be based on the same objections that were raised in the
Bangsamoro Juridical Entity before during the Arroyo Bahala na ug tumoy ra like the Scarborough Shoal.
administration. That case involving the North Cotabato. It
The principal forces, claimant states over certain territory
might be raised again and until the Supreme Court
to maintain peace in the area because no country can
decides on the issue it is not yet controversial that you
claim, exclusive ownership of any of these islands.
are to worry about it for the bar exams. We will wait and
see. So extended continental shelf may also refer to the
contiguous zone.
But the general principle is that there should be no sub-
state. At least it is just an autonomous government but B. State immunity
definitely not a sub-state because that would be contrary Lets go to Article II.
to the Constitution, more particularly on having one
republican state and the definition of the national Q: What are the elements of the State?
territory.
A: People, Territory, Government, Sovereignty
Now, lets talk about territorial seas referring to the sea
waters along its coastline up to 12 NM. The airspace People- what is significant is the provisions on
above, no limits. Up to the universe. But the international citizenship.
Territory- we have explained it already.

Government- the discussion will involve all about that it is an alienable land of the state that can be
government. disposed of and acquired, and then if it is awarded to
you then it does not involve any loss of government
Lets talk about sovereignty. property because it has never been part of the public
Because the state is sovereign then there can be no estate because you owned it. You are the owner of the
authority higher or equal to that. Therefore, not property. You are only confirming your ownership by
subjected to the authority of the courts. The principle asking the court that the property be registered in your
why the state is sovereign, first of all because there can name.
be no legal right against the authority that makes the law And thats precisely even if the Republic of the
on which that right depends. (case inaudible) Also for Philippines is made party defendant, that action will
practical reason, if you subject the state to suits, the prosper.
government will just be busy entertaining suits rather
than doing its job. Q: If you claim damages against the government and
you named the Republic of the Philippines as defendant,
And besides, under the Principle of Royal Dishonesty, this is a personal claim for damages, will your action
how can one who is sovereign like the king commit a prosper?
wrong against anyone? They only think the best of the
government for the best interests of the people. It can A: Even if the claim is valid, under the principle of royal
never commit or do wrong to anyone. This is the prerogative of dishonesty, the case is dismissed
principle of royal dishonesty on the part of the state because the state is immune from suit.
because even if you have claims against it, the state is
not liable because it cannot do any wrong against Q: How about if you claim for just compensation against
anyone. the Republic because you were not paid when the
government took your property for the widening of the
Thus, as a general rule: You cannot sue the State. road, can you sue the government through the DPWH?
Q: Now who is the state that you are referring to that can A: Yes. It will not entail appropriation of public funds.
be subject to a suit? Before expropriation, there is already appropriation of
public funds. If there was no appropriation in the first
A: You have the Republic of the Philippines, place, then the taking is illegal. Second reason for that,
unincorporated agencies of the government exercising according to the SC in many decisions, expropriation
governmental functions, the government officials and must not be used as a tool to oppress property owners
employees performing governmental functions. whose property was taken for the use of the public.
You cannot file a complaint if the defendant is the You remember that Ministerio case vs CFI
Republic of the Philippines. Thats the general rule. But
sometimes there are cases filed against the Republic At any rate, thats the bottomline, the common
and yet the action prospers. Why? Because other than denominator. If its the Republic of the Philippines, again
those enumerated entities that could be the subject to a as I have said, only when it entails appropriation of
suit that is not allowed, there is a requirement that only public funds or loss of government property.
those suit against those 3 entities that would require the
government to do an affirmative act such as involving In so far as agencies of the government, only those
appropriation of public funds or loss of government agencies being sued that are considered as
property that is not allowed to be filed against the state. unincorporated. They are considered unincorporated
because they do not have a personality independent that
You may sue the state for as long as it will not entail of the Republic of the Philippines. They are part of the
appropriation of funds or loss of government property. government of the Republic of the Philippines. If you sue
an unincorporated agency, it is likened to suing the
Example: government itself. Example of unincorporated agencies:
Q: In an application for registration of title, who will be the different departments of government, the
the respondent in that case if you were the applicant? administrative bodies of the government. If you sue, for
example, the Bureau of Fire because it didnt stop the
A: It will be the Republic of the Philippines, the Bureau conflagration that is tantamount to a suit against the
of Lands or the DENR. state, and therefore the case should be dismissed
because the state is immune from suit. Unincorporated.
Why? Because if there is no claim over the land, the
presumption of the law is that it belongs to the state. But There are other agencies of the government, although
if you can establish that it does not belong to the state, part of the Philippine government, but which are
considered as incorporated. They have their own Q: PHILIPPINE AGILA SATELLITE Inc. vs JOSEFINA
charters creating them allowing that institution of the TRINIDAD-LICHAUCO G.R. No. 142362 May 3, 2006
government in the first place to sue and be sued; like for Lichauco was sued in her personal capacity because of
example those engaged in proprietary functions like the denial of a franchise. She then invoked immunity
GSIS, PhilHealth, SSS. These are incorporated from suit so that the case will be dismissed outright.
agencies, like state universities. The charters creating Should the court dismiss the case outright?
them allow them to sue, to acquire property, and be
sued in relation to the acquisition of the property - in A: No, because it still has to be established that she did
which case they are suable; unless they are performing not act in excess of her authority or with gross
a purely governmental function, then the application of negligence or with grave abuse of her authority
immunity from suit would still apply. amounting to lack or excess of jurisdiction. Because if
that is established then she will be held liable personally,
Then of course you have Local Government Units. The the case cannot be dismissed automatically. Although if
LGUs are hybrids; mixed. It has dual function: both it is in the performance of a governmental function
governmental and proprietary. likewise where ultimately it will be for the State to answer
for the liability, the case will not prosper.
Q: Are LGUs suable?
The present action was denominated against Lichauco
A: Yes. and the unknown awardee, Lichauco was identified in
Q: Even if performing governmental function? the complaint as "acting Secretary of the [DOTC]." The
hornbook rule is that a suit for acts done in the
A: Yes, because under the Local Government Code, it performance of official functions against an officer of the
has consented to be sued. government by a private citizen which would result in a
charge against or financial liability to the government
Q: Are they liable?
must be regarded as a suit against the State itself,
A: No if it involves the exercise of a governmental although it has not been formally impleaded. However,
function, and therefore it will entail disbursement of government immunity from suit will not shield the public
public funds and you will need another consent from the official being sued if the government no longer has an
local government and that is the passage of a interest to protect in the outcome of a suit; or if the
supplemental budget, an ordinance, authorizing the liability of the officer is personal because it arises from a
disbursement. But it is suable. But exercising a tortious act in the performance of his/her
proprietary function because it is also engaged in duties||| (Philippine Agila Satellite Inc. v. Trinidad-
business, definitely it can be held liable. Suable and it Lichauco, G.R. No. 142362, May 03, 2006)
can be held liable likewise.
(TN) Take note of those general principles. Those are
In so far as government employees and officials are general principles. There are exceptions however.
concerned, they are also immune from suit for as long as
WHEN THE STATE MAY BE SUED
they are performing governmental functions, except
special agents. Special agents under Art. 2180 (Civil You cannot sue the state unless the state gives its
Code) the state has given its consent to be sued. The consent. When the state gives its consent, you can now
special agent is one who discharges a function foreign sue it.
from his regular functions. The government has taken
risk there and it would not be fair that he would be out Q: How does the state give its consent?
there causing injury without any responsibility. Thus, A: Only through legislation, if it is express consent. It
even if this particular employee or official is performing a would be by a general law or a special law. Or it would
governmental function, but he is designated as special be impliedly given by the state under certain
agent, the state has consented to be sued, to prove the circumstances.
claim against the state, via this special agent. Second,
even if a government official is performing a function I repeat: the giving of consent can be express or implied.
however without authority, or if he has authority, he
acted with gross negligence or with grave abuse of that EXPRESS CONSENT
authority amounting to lack or excess of jurisdiction, the Lets talk about express giving of consent. General laws.
state cannot protect him under the immunity from suit. It should be a law, ha, for express consent; not by
He can be sued in his personal capacity. 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
mistake, they should be investigated for liability in Its actually very easy when there is an express law. Ang
relation to the massacre of the farmers of Hacienda problema ang implied giving of consent.
Luisita at the Mendiola bridge during her administration.
They used the declaration of the President to sue the IMPLIED CONSENT
military, the AFP, for liability caused by the death and Lets talk about implied giving of consent. You have 3
injuries of the farmers. What happened? The action was instances or rather 4 or 5.
dismissed because the state case was immune from
suit. It was the AFP, government officials, who were First instance is when the government enters into a
sued in their official capacity. The action definitely will commercial contract. Its not just any government
not prosper. But if they were sued in their personal contract. It has to be proprietary or commercial contract.
capacity, then of course it will prosper because the It has no relation to the principal function of that office.
negligence of an official is not an act of the state. As I For example, COMELEC enters into a contract with a
said earlier, the state cannot do wrong. It only does the printing company for ballots. Thats governmental
right thing. If you do the wrong thing, thats not the act of contract. DPWH enters into a contract with a contractor
the state but your own act as an employee or official. to build bridges and roads. Thats governmental
The state will not get involved in it. You pay; not the contract. Thats not commercial. If the contract is purely
state. commercial where the government enters into a contract
with an entity to provide a canteen in the office, now
As I was saying, it has to be by legislation, by a statute thats proprietary or commercial. In which case, if
passed by Congress. proprietary or commercial, the state is considered to
Q: One time there was a contract entered into by a have waived its immunity. It would be treated like an
government agency with a private individual. The ordinary individual.
contract itself provides that in case of breach violation, (TN) But if commercial contracts, take note, as part of
the office is suable. It can be sued. Now, would that be a the giving of consent expressed under PD 447, General
valid waiver of immunity? Accounting Laws: if you have claims against the state,
A: No, because if waiver of immunity is express, it must based on a contract for example, contractual obligations
only be by legislation of Congress. of the state, you cannot sue the state directly. What you
must do in order to sue the state there are certain
As I have said earlier, there are general laws and special requirements. You have to make a claim with COA; until
laws. The general laws: like the provisions of the Civil it is denied by COA, you can always go to the Supreme
Code (Article 2180, 2186); you have the Local Court on certiorari where you can now sue the state. So
Government Code. These are general laws passed by it is only after your claim is denied by COA, that you can
Congress where the government is allowed to sue. sue the state for your monetary claims based on a
Usually this is a consequence of the governments right contractual obligation. The state has expressly given its
to acquire property and as such, in relation to the consent there. Even if your money claims is based on a
acquisition of property, has the right to sue and be sued governmental contract, you can still sue not in the
in relation to its right to acquire or to possess that implied but in the express giving of consent. But in the
property. These are general provisions of laws: 2180 express giving of consent, there is a requirement that
refers to special agent. I think 2186 would refer to Local you must first make a claim with COA before you can
Government units who do not properly maintain their sue COA and the government agency that you are
roads and drainage niya mahulog ka sa manhole. In the claiming against with the Supreme Court.
law on torts, the state has given its consent to be sued
for this negligence that may have been caused by Again, if it is a contract, the implied giving of consent is
improper maintenance or no maintenance at all of limited to purely proprietary or commercial contracts.
government buildings and infrastructures. By that, the Here, you can sue the state directly.
state has waived immunity from suit. Second instance of implied giving of consent: when
Special laws are laws specifically passed by Congress government engages in purely business transactions,
authorizing a particular individual to sue the state, where commercial transactions - business, negosyo. It has to
the state has waived its immunity from suit in a special be primarily commercial. Because the sometimes the
law allowing an individual to prove his claim against the government may also engage in governmental function
state. A good example is the case of Merritt vs. the and then part of the governmental function, to enhance
Government of the Philippine Islands where it was it, they may also be engaged in proprietary function.
Congress who passed a law allowing the victim there to Q: For example, the Bureau of Customs, their function is
sue, to prove his claim against the Veterans Hospital to assess taxes; thats governmental. But theyre also
owned by the government. engaged in arrastre business to carry the items that
are heavy for purposes of assessment. Arrastre is claims that the ship was their property and trying to
proprietary. It has nothing to do with the governmental protect their rights over the property.
function because theirs is to collect taxes, but it
enhances the collection of taxes if they can see the item Finally, as an exception, in expropriation cases, were the
itself where it will be brought before the office; might as property owner is not paid just compensation, he has the
well engage also in arrastre business. If damage is right to sue the state or any government entity for the
caused by the arrastre business, can you now sue the payment of just compensation. There is no violation
Bureau of Customs? there in the immunity from suit. The reason being that,
according to the SC, the immunity of the state from suit
A: No, because the arrastre business is not the pure should not be a tool to oppress its citizens.
business that the Bureau of Customs is engaged in. It is
merely incidental to the performance of a governmental This principle of immunity from suit also applies to
function, and therefore it remains immune from suit. foreign governments and other international
And then you have when the state initiates the filing of a personalities given legal personality including their
suit against an individual for affirmative relief. Initiate, representatives.
meaning it is the government who filed the complaint first
against an individual and the purpose is to seek Case: Archbishop of Manila relating of the acquisition of
affirmative relief. a property that was sold to Vatican and then there was a
suit made by Vatican (a state within a state).
Q: Why is this so important, the seeking of affirmative
relief? The Holy See vs Rosario G.R. No. 101949 December
1, 1994
A: Because if the purpose of the suit is to repel, to resist
a claim against the state, the state is not considered to
Certainly, the mere entering into a contract by a foreign
having waived its community.
state with a private party cannot be the ultimate test.
Q: Case of PCGG v. Benedicto G.R. No. 129406 March Such an act can only be the start of the inquiry. The
6, 2006, this is a landmark case. The PCGG initiated an logical question is whether the foreign state is engaged
in the activity in the regular course of business. If the
action against the Benedictos to claim certain shares of
foreign state is not engaged regularly in a business or
stock of a company. They are saying Benedicto was
trade, the particular act or transaction must then be
only used as dummy, the real owners being the tested by its nature. If the act is in pursuit of a sovereign
Marcoses therefore the shares are ill-gotten wealth from activity, or an incident thereof, then it is an act jure
the state. Now the SC declared that the shares of stock imperii, especially when it is not undertaken for gain or
belonged to the Benedictos and not the Marcoses. The profit.
Benedictos then sued PCGG in their counterclaim; and
now the PCGG invoked their immunity from suit. Is In the case at bench, if petitioner has bought and sold
PCGG correct? lands in the ordinary course of a real estate business,
surely the said transaction can be categorized as an
A: SC said no. The counterclaim will prosper because in act jure gestionis. However, petitioner has denied that
the first PCGG initiated the filing of the complaint against the acquisition and subsequent disposal of Lot 5-A were
the Benedictos for affirmative relief. made for profit but claimed that it acquired said property
for the site of its mission or the Apostolic Nunciature in
On the contrary you have Fernando Froilan vs Pan the Philippines. Private respondent failed to dispute said
Oriental Shipping G.R. No. L-6060 September 30, 1954 claim.
There was this transaction between the bank and a
private individual. This private individual failed to pay its Lot 5-A was acquired by petitioner as a donation from
obligation and so the ship that was used as collateral the Archdiocese of Manila. The donation was made not
was foreclosed by the bank, the government intervened for commercial purpose, but for the use of petitioner to
to stop the foreclosure because the government claims construct thereon the official place of residence of the
that the ship used as collateral belongs to the state. Papal Nuncio. The right of a foreign sovereign to acquire
Later, it was declared by the SC that it belonged to the property, real or personal, in a receiving state, necessary
individual who owed money. The bank has already filed for the creation and maintenance of its diplomatic
a case against the government to stop the foreclosure mission, is recognized in the 1961 Vienna Convention on
causing damage to the bank. Diplomatic Relations (Arts. 20-22). This treaty was
Q: Will the action prosper? concurred in by the Philippine Senate and entered into
A: No, because what the government did in this case force in the Philippines on November 15, 1965.
was merely to repel or resist a claim against it which
In Article 31(a) of the Convention, a diplomatic envoy is making of foreign policies, we are now controlled by
granted immunity from the civil and administrative foreign policies. Where is now sovereignty or
jurisdiction of the receiving state over any real action independence of the Philippine state in the formulation of
relating to private immovable property situated in the its foreign policy? IOW, it will now violate the provisions
territory of the receiving state which the envoy holds on relating to independent foreign policy and the states
behalf of the sending state for the purposes of the being sovereign.
mission. If this immunity is provided for a diplomatic
SC dismissed the case outright saying that you cannot
envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this use the provision of Article II as basis to question the
case is the Holy See. validity of that contract. Legislation is needed to
implement the provisions in Article. SC further discussed
Q: Can it be sued? that no man is an island and we cannot live by
A: if purely commercial, yes but if it is something to do ourselves, we need to relate with foreign policies. As
with the official function of Vatican, not suable. long as there is reciprocity and mutuality in the benefit, it
That case involved the performance of an official cannot be a violation.
function therefore like any sovereign state it is immune.
Article II Declaration of Principles and State Policies In Oposa v Factoran, except on the provision of the
(Political Creed of the Government) right to a balanced ecology, SC held that it is the only
It is the enumeration of the obligations of the provision that is self-executing. All the rest needs
government, underlying principles in the operations of legislation.
government.
Oposa v Factoran G.R. No. 101083 July 30, 1993
TN: Article II is not self-executing. It cannot be the While the right to a balanced and healthful ecology is to
source of rights and obligations. If violated, you cannot be found under the Declaration of Principles and State
go to court and seek judicial relief unless there is a law Policies and not under the Bill of Rights, it does not
that was violated based on Article II. follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right
Similar to the Apostles Creed, there is no sanction there belongs to a different category of rights altogether for it
that you will be less catholic if you violated. Not obliged concerns nothing less than self-preservation and self-
to observe. No binding effect if there is no law perpetuation aptly and fittingly stressed by the
implementing such. Legislation is needed to implement it petitioners the advancement of which may even be
said to predate all governments and constitutions. As a
Taada v Angara G.R. No. 118295. May 2, 1997 matter of fact, these basic rights need not even be
It is true that in the recent case of Manila Prince Hotel written in the Constitution for they are assumed to exist
vs. Government Service Insurance System, et al., this
[31] from the inception of humankind. If they are now
Court held that Sec. 10, second par., Art. XII of the explicitly mentioned in the fundamental charter, it is
1987 Constitution is a mandatory, positive command because of the well-founded fear of its framers that
which is complete in itself and which needs no further unless the rights to a balanced and healthful ecology
guidelines or implementing laws or rules for its and to health are mandated as state policies by the
enforcement. From its very words the provision does not Constitution itself, thereby highlighting their continuing
require any legislation to put it in operation. It is per importance and imposing upon the state a solemn
se judicially enforceable. However, as the constitutional obligation to preserve the first and protect and advance
provision itself states, it is enforceable only in regard to the second, the day would not be too far when all else
the grants of rights, privileges and concessions covering would be lost not only for the present generation, but
national economy and patrimony and not to every also for those to come generations which stand to
aspect of trade and commerce. It refers to exceptions inherit nothing but parched earth incapable of sustaining
rather than the rule. The issue here is not whether this life.
paragraph of Sec. 10 of Art. XII is self-executing or
not. Rather, the issue is whether, as a rule, there are C. General principles and state policies
enough balancing provisions in the Constitution to allow (Only the important ones will be discussed, the rest is up
the Senate to ratify the Philippine concurrence in the to you)
WTO Agreement. And we hold that there are.
Sec. 1. REPUBLICANISM
Remember the World Trade Agreement (WTA) where it Sec. 1 The Philippines is a democratic and republican
stipulates that Congress is prohibited from passing a law State. Sovereignty resides in the people and all
contrary to the provisions of the WTA. That was government authority emanates from them.
questioned by Tanada and others, in effect, in our
Republican representation and renovation kind of same is merely recommendatory and, as such,
government. Elect representatives in representation. In respondents reliance on the same falters altogether.
renovation, when there are changes everytime a term of
office of a public official expires, you have new Besides, it must be pointed out that respondents have
administration that would introduce changes to the nonetheless failed to substantiate their position that the
government. identification authority of legislators is only of
Because it is republican, it is understood that recommendatory import. Quite the contrary, respondents
sovereignty resides in the people. Whatever authority through the statements of the Solicitor General during
exercised by officials, they must not forget that the the Oral Arguments have admitted that the
identification of the legislator constitutes a mandatory
power comes from the people.
requirement before his PDAF can be tapped as a
funding source, thereby highlighting the indispensability
Q: How do you know that the system is republican? of the said act to the entire budget execution process
A: You go into the manifestations of republicanism.
1. First, the existence of the Bill of Rights. One of the issues raised is the constitutionality of the
2. Observance of separation of powers pork barrel system, WON it violates the separation of
3. Non-delegation of legislative powers powers.
4. Government of laws and not of men
5. Popular election Explanation: there are three branches of the government
6. Accountability of public officials supposedly independent from each other because they
7. Rule of majority do not owe each other powers assigned by the
Etc etc. constitution. It would be express, implied or incidental
TN: Among the powers that you need to remember are powers. For as long as the powers are assigned to that
the principles that are manifest in a republican system. branch, we call it the full discretionary power. As such,
- Separation of powers, checks and balances and it cannot be checked, intruded into, interfered, or
delegation of powers (these are mentioned in usurped. It shall be exclusive. If usurped, violation
occurs to the separation of powers.
the syllabus for bar exams
The most recent decision on the principle of separation
Example: in relation to the PDAF, based on funds
of powers is the case involving PDAF, Belgica et al v
allotted to certain members of Congress for projects that
Executive Sec Ochoa, etc.
they recommend.
Belgica vs Ochoa G.R. No. 208566
TN: Budget preparation is exclusive to the president
November 19, 2013
under the constitution. It shall be submitted to congress
Clearly, these post-enactment measures which govern
within 30 days from the opening of the regular session.
the areas of project identification, fund release and fund
realignment are not related to functions of congressional
oversight and, hence, allow legislators to intervene President enumerates the expenses of government with
and/or assume duties that properly belong to the sphere corresponding amounts and source of the appropriation.
of budget execution. Indeed, by virtue of the foregoing, Special appropriation, state the source of revenue. If
legislators have been, in one form or another, authorized general appropriation, it is sufficient that you have the
to participate in as Guingona, Jr. puts it "the various expense and the amount.
operational aspects of budgeting," including "the
evaluation of work and financial plans for individual Q: why is it submitted to congress?
activities" and the "regulation and release of funds" in A: because it is congress that will pass the law under the
violation of the separation of powers principle. The principle that there cannot be any disbursement of public
fundamental rule, as categorically articulated in
funds without appropriation or authority.
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 When congress appropriates the amount, it specifies the
role in the implementation or enforcement of the law nature of the expense, purpose and amount available in
violates the principle of separation of powers and is thus the General Appropriation Act (GAA).
191
unconstitutional. That the said authority is treated as
merely recommendatory in nature does not alter its That power is exclusive to congress and cannot be
unconstitutional tenor since the prohibition, to repeat, usurped by the president. Thats the issue in
covers any role in the implementation or enforcement of Disbursement Acceleration Program (DAP) because
the law. Towards this end, the Court must therefore there is no identification of projects. They were
abandon its ruling in Philconsa which sanctioned the supposed to take it from savings and in effect mentioned
conduct of legislator identification on the guise that the
in the cases, Congress was denied to identify the project actual cases. Except: the right of the people to a balanced
and appropriate the amount. and healthful ecology because this is a public right.
TN: the case of Taada vs. Angara with respect to the

PDAF is similarly situated. There was an appropriation
WTO.
for PDAF. No question about that in the budget. But
remember that the function of congress is simply to Sec. 1 is about republicanism.
appropriate, not to implement the national budget.
TN/(BAR): the principles of republicanism particularly on
Q: who implements the law? the principles of Separation of powers, check and
A: It is the president balances of the powers and the blending of the powers,
non-delegation of powers, the power of judicial review on
Based on the GAA, the president disburses the money. the SC to implement on the separation and the non-
What happened in PDAF.. History: Remember sometime delegation of the powers, accountability of public
in the 1990s, it was challenged as to its constitutionality officials, rule of majority, so on and so forth.
in the case of PHILCONSA vs Enriquez where the Art II sec. 2, this is also important. This has been asked
issue was WON it was constitutional for Congress to several times because of public international law, which
identify the projects to which those appropriated funds. It is still part of Political Law.
should not be constitutional since in effect they are
already implementing the budget. But the decision of the Section 2. The Philippines renounces war as an
SC was rather vague. SC held that it is not a violation of instrument of national policy, adopts the generally
the constitution since what the members did was merely accepted principles of international law as part of the
to recommend the project. Recommendatory only and law of the land and adheres to the policy of peace,
ultimately the discretion was left to the president. BUT
equality, justice, freedom, cooperation, and amity
apparently, in the recent decision of the SC, it interferes
with all nations.
into the exclusive power of the executive to implement
and enforce the national budget. Because the matter of Principle of international law is generally accepted, it will
identifying the project, they decide and determine the be applied by our courts as though it were local or
project and who is going to be the beneficiary. In effect, municipal statutes. So there is no need for legislation to
it is identified and found not just to be recommendatory. accept a generally accepted principle in international law
SC held that it violates the separation of powers as it (GAPIL) in order to implement it in our jurisdiction or
interferes the implementation of that national budget apply it in actual cases in our courts. So lets enumerate
which is exclusive to the president. the sources of the generally accepted principles of
international law that are automatically adapted as part
PHILCONSA vs Enriquez, G.R. No. 113105, August of the legal system.
19, 1994
The authority given to the members of Congress is only Treaties.
to propose and identify projects to be implemented by
You have the ratified treaties entered into by our country
the President. Under Article XLI of the GAA of 1994, the
with other countries. By ratified, it means that it must
President must perforce examine whether the proposals
have been concurred by at least 2/3 of the members of
submitted by the members of Congress fall within the
the Senate in order to bind us. There is no need of
specific items of expenditures for which the Fund was
legislation in order to apply these agreements.
set up, and if qualified, he next determines whether they
are in line with other projects planned for the locality. For example, the World Trade Agreement (WTA) was
Thereafter, if the proposed projects qualify for funding concurred in by the Senate, in which case, it was applied
under the Funds, it is the President who shall implement as though it were an ordinary statute. Do you remember
them. In short, the proposals and identifications made by the controversy regarding on the importation of rice?
the members of Congress are merely recommendatory. 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
Sec. 2 THE INCORPORATION CLAUSE
a reservation was made in the agreement itself, to
protect our own local farmers, because actually, the
Art. 2 is not self executing. These are only guidelines in so agreement will compete with our local rice production.
far as the congress concerned in the making of laws, as to But that reservation is only good for a certain period of
the president in the execution of the laws, and as to the SC time which was 10 years after the execution of the WTA.
is concerned in the interpretation of the laws applied in
Q: Why did it become a controversy?
A: Because if applied, there is this agreement that they the Marcoses did not have enough properties in
should only pay for the importation of the rice, and they America, since their properties are in the Philippines. So
no longer need to get the permit from NFA to make sure the human rights victims wanted to enforce this, but first
that they are still within the limits and that the number of of all, our courts need to recognize that judgment coming
kilograms they import is still within the prescribed limits. from a foreign court. Remember that we are sovereign
And so they just order as many sacks of rice without the states, and so we cannot be bound by the judgment of
requisite NFA permit. When the court had to resolve this any court from a foreign state.
issue, it had to apply the WTA agreement as though it
were an ordinary law because it was part of the domestic The second problem there is, there is no agreement
legal system already. between the US and the Philippines that both will
recognize the court judgments of the other state. But it
On the other hand, lets talk about the Rome Statute, has been the practice in the international community that
which created the International Court of Justice. Its foreign judgments are recognized for as long as you
noteworthy to mention that this was never ratified by the follow certain rules for its authentication, that indeed it
Senate, because they never had the chance to, because exists, that its in accordance with the rules, etc. then we
Arroyo did not submit the Statute of Rome to the Senate can recognize the same and even enforce it. So the SC
for concurrence. Nonetheless, the ICJ was established. said in the case of Mijares that there is no obligatory rule
derived from treaties or convention that requires the
Q: Are we bound by the jurisdiction of the ICJ in the Philippines to recognize foreign judgments or allow the
event that one of us or our officials is found to have procedure for the recognition thereof, however, GAPIL,
committed human rights abuses covered by the and by virtue of the incorporation clause, commands us
jurisdiction of the ICJ? to recognize these practices even if they do not emanate
A: The general rules is, since we did not concur, that from treaty obligations.
agreement did not bind us, so were not subject to the So the customary practices are a combination of two
jurisdiction of the ICJ. Although theres also a principle elements
that we cannot also violate it simply because we did not
sign it. Thats the general rule. To be part of the legal TN:
system automatically, that treaty must be concurred,
duly ratified, because it must be concurrence, not just 1. Established, widespread and consistent
the signature of the President. Although technically when practices on the part of the states;
we say ratification, its the President that signs it, and it 2. There is an opinion as to law or necessity.
is generally discretionary on the part of the President.
So if these two elements are established, then it
Customary norms becomes customary international law and it also
becomes a GAPIL, and so under the incorporation
Another source for GAPIL are norms of general or clause, it becomes part of the legal system.
customary laws. So there are customs or acts or
practices that have been adapted by the international Lets have a concrete example and lets talk about the
community. For as long as it has been practices for so immunity from suit of heads of state. So for example, if
many years, and provided that it also has an obligatory the head of state commits rape in the Philippines publicly
factor that obliges the international community to and even if everyone witnessed the act. There is no
comply, then it becomes a source of public international criminal prosecution because it is GAPIL that a
law and under the incorporation clause, its automatically representative of a sovereign state cannot be subjected
adapted as part of the legal system. to the authority of another states court. For as long as
TN of the case of Mijares et al vs Javier GR No. 139325 the court knows that he is a head of state, automatically
April 12, 2005. In the Mijares case, this was about the the court will desist from proceeding with the case for
recognition of foreign judgment by our courts. The lack of jurisdiction because of the principle of immunity
question there is: whether you can enforce a foreign from suit.
judgment even when there is no agreement between our Treaties that have become customary norms.
country and another country as regards the recognition
and enforcement of a foreign judgment. This is another source of GAPIL.
You recall that case involving the violation of human Example: Do you remember the Geneva Conventions
rights (TN) tried in the US, in Hawaii specifically, which where we were not signatories to these treaties? These
awarded damages to the victims of the human rights treaties, this was after WW2, allowed for the
victims during the Marcos administration. The problem establishment of military commissions which had
there is that they cannot satisfy the judgment because jurisdiction to prosecute war criminals.
TN of the case of Kuroda vs Jalandoni G.R. No. L-2662 law or the municipal law which should be sustained is an
March 26, 1949. One of the captured Japanese organ of law, of Congress, in which case, it must always
generals questioned the jurisdiction of the Philippine sustain our own laws. But if the international law conflicts
military commission, saying that it had no jurisdiction with our Constitution, the Constitution always prevails.
since its creation was invalid because the Philippines
was not a signatory to the Geneva Convention. But TN that in the international community, both statute
and law are considered as equal and no source is more
Q: What did the SC say about this? superior compared to the other.
A: It said that we might not be a signatory to it, but it has So, the manner of construing the conflict is this:
to be noted that that Convention or Treaty has become a
customary law, and as such, it has also become GAPIL, It depends on which came first or later.
and is automatically adapted as part of the legal system If for example, the law was passed prior to the treaty,
of the land, because again of the incorporation clause. then always, the treaty prevails and it should be treated
That principle was also applied in the case of the Statute as an amendment to an existing law. If the law was
of Rome, because while we were not a signatory to it, passed after the treaty was signed, then it should be
but the Statute of Rome was accepted by the construed as a law amending the treaty. So you follow
international community and through time it became a statutory construction and thats how we construe laws
customary international law. Meaning, even if there was conflicts between a treaty and a statute.
no concurrence or ratification, but by virtue of it being a Regarding the renunciation of war. Its only aggressive
customary law, we are subject to it under the war. But I tell you class that in the BAR, the question is
incorporation clause because it has become a GAPIL. always about the incorporation clause.
TN also of the case of Pharmaceutical and Health Care Sec. 3. CIVILIAN SUPREMACY
Association of the Philippines vs Duque G.R. No.
173034 October 9, 2007. Ive mentioned this before that First of all, you have the President as the Commander-
this pertains to the requirement that if youre a in-Chief of the AFP, the highest authority who is a
manufacturer of milk, youre supposed to put in the can civilian and not a member of the AFP.
or carton that breast milk is still the best milk in the
universe. At that time, the bill was still pending in As one of the instruments of maintaining the supremacy
Congress, and so the manufacturers questioned the of the civilian authority, you have the creation of court
requirement of Duque. martial that discipline the behavior of the AFP members,
the decision of which are subject to the review of the
Q: Now, what was invoked by Duque who was then the President, in his capacity as the Commander-in-Chief in
Secretary of Health? order to maintain civilian supremacy over the military.
A: That Convention where were a signatory that has
become a customary law that requires that it should be You also have some cases like IBP vs. Zamora, GR
stated in all milk products that breast milk is still the best. 141289, Aug. 15, 2000 24. Gudani vs. Senga, GR
Again, by virtue of the incorporation clause, this was 170165, April 15, 2006
automatically adapted in our local laws. You dont need
In the IBP case, this is about the deployment of the
local jurisdiction to implement it.
marines in the malls. The SC said that theres no
Q: But what happens when there is a conflict between a violation of the civilian supremacy over the military
GAPIL and a statute? because the marines were still under the leadership of
the local chief police force, who is in charge in the
A: TN here guys of the case of Ichong vs Hernandez maintenance of peace and order.
G.R. No. L-7995 May 31, 1957, where the SC said that
as much as possible, both have to be reconciled In the Gudani case, this is when Gudani, notwithstanding
because it is not the intention of Congress or the the directions of his Chief of Staff not to appear in a
President to pass a law or enter into a treaty with the legislative inquiry, defied the order and appeared and
purpose of intentionally violating existing laws or testified. So he was court martial-ed. He questioned the
Congress violating what has been agreed upon by the jurisdiction of the court martial by saying that all that he
President in a treaty. Thats always the principle: you did was to heed the order of Congress exercising its
harmonize it. If it cannot be harmonized, which of these power to conduct legislative inquiry. But the Supreme
two will prevail? You follow Ichong vs Hernandez, that it Court said that no, your accountability is direct to the
should always be the municipal law, because after all, Chief of Staff or to the President as the Commander in
the court that decides whether or not the international Chief. You follow the chain of command in order to
maintain the supremacy of the civilian authority over the

military. The Chief of Staff, as directed by the 2. Teaching of religion in public elementary and
Commander in Chief (the President) told you not to high schools. You also have the teaching of
appear, in which case, you should follow that first, religion in public elementary and high schools.
because it would be too dangerous if a person can just Remember that for as long as there is consent
defy an order from the Commander in Chief. If there is a from the parents or guardians in writing and that
sanction and Gudani cannot appear in a legislative
it is not within school hours and without an
inquiry, thats already Congress problem and not
additional cost to the government to be
Gudanis problem, because his primary concern is his
conducted by an accredited religious teacher.
accountability to the Commander in Chief and not to
Congress. That is allowed in public schools.
SECTION 5: RIGHT TO BEAR ARMS IN ORDER TO 3. Religious people in the military and in
PROTECT LIFE, LIBERTY, PROEPRTY orphanages. Another exception is on the
appropriation of public funds. That is prohibited if
Section 5 came out in the BAR exam, and this is with
regard to the maintenance of peace and order if we are it is used for the support of any church or any
to enjoy the blessings of democracy. There should be priest and minister, except when the priest or
protection of life, liberty and property and you need to do minister is working for the AFP or for
this by bearing arms. In such a case, you are armed with orphanages or government leprosarium, they
a gun or any weapon in order to protect your property or can receive support from public funds from the
your life or your liberty. So the question is this: is government. That is an exception.
carrying a firearm a right or a privilege that is merely
granted by the state? 4. Ownership of educational institutions.
Finally, on ownership of educational institutions.
TN: Remember the case of Chavez vs Romulo G.R. No.
The rule is only a Filipino citizen or a private
157036, June 9, 2004, because in America, this is
considered as a property right, so therefore the permit Filipino corporation can establish an educational
cannot just be revoked by the state without hearing. In institution, except when that educational
the case of Chavez, he questioned the order of the institution is established by a religious group or
General Chief of the PNP revoking all the permits of all mission board. Even if they are all foreigners,
those who had firearms without hearing, or the they may do so by way of exception as
revocation was effected by that mere pronouncement. accommodation to the church as an exception to
the separation of church and state.
So, Chavez was saying that that cant be done because
thats an intrusion to the right of the person to protect his
Practical application of this concept? TN of that RH Law,
life, liberty and property without due process. But
the case of Spouses Imbong et al vs the Executive
according to the SC, the right to carry firearms is not a
property right and so it is not covered under the due Secretary GR No. 204819 April 8, 2014 and many
process clause. It is a privilege granted to a person other cases. That was decided only sometime in April
subject to revocation to be exercised by the state under 2014. One of the things that was stressed there.
its police power.
Verily, the principle of separation of Church and State is
SECTION 6: SEPARATION OF CHURCH AND STATE based on mutual respect. Generally, the State cannot
meddle in the internal affairs of the church, much less
What is important under the separation of church and question its faith and dogmas or dictate upon it. It cannot
the state are the exceptions. favor one religion and discriminate against another. On
the other hand, the church cannot impose its beliefs and
Exemptions of the principle of separation of Church convictions on the State and the rest of the citizenry. It
and State: cannot demand that the nation follow its beliefs, even if it
1. Tax exemptions for those actually, directly and sincerely believes that they are good for the country.
Consistent with the principle that not any one
exclusively used for religious purposes. Number religion should ever be preferred over another, the
one as an exception recognizing the contribution of Constitution in the above-cited provision utilizes the term
the church to the state is tax exemptions to "church" in its generic sense, which refers to a temple, a
properties that are actually, directly and exclusively mosque, an iglesia, or any other house of God which
used for religious purpose, however limited only to metaphorically symbolizes a religious organization.
property tax, regardless of ownership. Purpose has Thus, the "Church" means the religious congregations
collectively.
to be looked into, not mere ownership.
Balancing the benefits that religion affords and the need separation of powers relating to PDAF because there
to provide an ample barrier to protect the State from the was no evidence to show that the principle was violated.
pursuit of its secular objectives, the Constitution lays
down the following mandate in Article III, Section 5 and Finally, this case of Belgica, the SC was already clear on
Article VI, Section 29 (2), of the 1987 Constitution. xxxx the pronouncement that there was a case and up to that
case, with regard to the PDAF expended, there exists a
In short, the constitutional assurance of religious violation of the separation of powers.
freedom provides two guarantees: the Establishment
Clause and the Free Exercise Clause. One of the things that was stressed there, while
according to the SC the state respects religion and the
The establishment clause "principally prohibits the church, or anyones belief, like if you believe that
State from sponsoring any religion or favoring any contraceptive should not be used as a form of preventing
religion as against other religions. It mandates a strict pregnancy or family planning purposes and all, the State
neutrality in affairs among religious groups." Essentially, respects respect. But your belief or other peoples belief
it prohibits the establishment of a state religion and the should not be imposed upon the state because there is
use of public resources for the support or prohibition of a
separation of the church and the state.
religion.
There may be some accommodation because after all
On the other hand, the basis of the free exercise the state has recognized the contributions of the church.
clause is the respect for the inviolability of the human The bottom line there is that for as long as there is no
conscience. Under this part of religious freedom
clear and imminent danger of any substantive ill to
guarantee, the State is prohibited from unduly interfering
happen that the state has the obligation to prevent, by all
with the outside manifestations of one's belief and faith.
||| (Imbong v. Ochoa, Jr., G.R. No. 204819, April 08, means, the state should allow any person to enjoy his
2014) religious belief or non-belief of anything.
In the case of Estrada vs Escritor A.M. No. P-02-

D. Separation of powers 1651. August 4, 2003, you have another term, as long
The recent decisions applying of the separation of as there is no compelling state interest, or national
powers is that case of Belgica, et al vs. Executive security or for public order, public convenience or public
Secretary Ochoa and SJS et al vs. Drilon et al and the health, by all means you should be allowed to freely
cases relating to PDAF. exercise religion or whatever beliefs you have under the
Principle of Benevolent Neutrality- Accommodation.
Q: One of the reasons why PDAF was declared as
unconstitutional was because it was violative of Given that a free exercise claim could lead to
separation of powers. How? three different results, the question now remains as to
how the Court should determine which action to take. In
A: Considering the 2 other cases that were rendered by this regard, it is the strict scrutiny-compelling state
the SC prior to this case, these are the cases of interest test which is most in line with the benevolent
Philconsa vs. Enriquez and LAMP et. al vs. Sec. of neutrality-accommodation approach.
Budget and Mgt. and Orders. In the case of Philconsa, Under the benevolent-neutrality theory, the
the SC was saying that there was no violation of the principle underlying the First Amendment is that freedom
separation of powers because in the PDAF, what the to carry out ones duties to a Supreme Being is an
congressmen and senators do, they simply recommend inalienable right, not one dependent on the grace of
the projects to which the funds will be allotted to. Its legislature. Religious freedom is seen as a substantive
recommendatory, its not for them to actually determine right and not merely a privilege against discriminatory
the project to be supported or set for, in so far as the legislation. With religion looked upon with benevolence
PDAF is concerned, there is no intrusion of the power in and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances.
the executive branch to execute the general
Considering that laws nowadays are rarely
appropriation act. In the case of LAMP (April 2012), the enacted specifically to disable religious belief or practice,
SC did not make any clear pronouncement whether free exercise disputes arise commonly when a law that
there was clear separation. It simply ruled that it was not is religiously neutral and generally applicable on its face
substantiated by LAMP that indeed there was a violation is argued to prevent or burden what someones religious
of separation powers because it was not supported by faith requires, or alternatively, requires someone to
evidence that indeed the congressmen or senators undertake an act that faith would preclude. In essence,
interfered in the execution on the appropriation law, as then, free exercise arguments contemplate religious
regards to the disbursement of funds relating to projects exemptions from otherwise general laws.
that were identified by the members of congress. In Strict scrutiny is appropriate for free exercise
other words, there is no clear ruling on the principle of challenges because [t]he compelling interest test
reflects the First Amendments mandate of preserving
religious liberty to the fullest extent possible in a long as the ovum has not been fertilized yet, there is no
pluralistic society. Underlying the compelling state violation. What is being prevented is the expulsion of the
interest test is the notion that free exercise is a fertilized ovum, in fact the law is against abortion.
fundamental right and that laws burdening it should be
subject to strict scrutiny. The provisions that were declared unconstitutional are
Art. 7, 17 and 23.
Sec. 7 Independent Foreign Policy
Take for instance, Ill give you an example. One of the
In the case of Tanada vs. Angara (id), while be believe in provisions in RA 10354, if for example you are an
Independence, Sovereignty, Territorial Integrity and employee of POPCOM (population commission) or in a
Defense etc. you must also understand that no man is health care, your duty is supposed to be to introduce
island, should there be any exchange or trade or contraceptives as a means of family planning. And since
whatever, this arrangement should be based on Equality it is against your religion, what is your tendency? You
and Reciprocity. TN will not introduce that to the public especially to the poor
because you would feel guilty about introducing it
Sec. 8 Prohibition against the stocking of Nuclear Arms.
because as far as the church is concerned that is a sin,
One of the issues raised in that amendment to the VFA there can be only family planning but the natural way.
now with the controversy of China. They are going to
So many women are deprived because they cant afford.
question the validity of the Executive Agreement signed
But for you it is a sin. So you do not introduce. But do
by the President recently to the U.S. allowing the U.S.
you know under the law you can be penalized? So the
troops even to stay specifically on previous bases that
SC said that is UNCONSTITUTIONAL. Now you would
they have abandoned like Subic or Olongapo. There
be a violation of the freedom of religion. It is true that you
may not be a problem in the entry; the problem is on the
cannot impose your beliefs but you should not also be
possibility of using nuclear firearms. It is not revoked and
punished for what you believe in.
that is prohibited under the Constitution.
Penalties for Health Service providers that require
TN: As a general rule, the entry of foreign military troops
parental consent from minor patients who are not in an
is prohibited by the Constitution.
emergency or serious situation. So even for a minor who
Except here it was only by way of an exception rather wants an abortion, it is allowed under the law and it is
than as a general rule, specifically because of the prohibited and was declared UNCONSTITUTIONAL.
possibility of nuclear weapons being brought here into Allowing married women, not in an emergency situation
country. That is prohibited. But suppose in the future, or life threatening case, to undergo reproductive
(alangan man primi canyon nalang cge atong gamiton, procedure without the consent of the spouse. If you were
unya tanan nuclear weapons), it depends on national the spouse, how would you feel? Your wife was already
interest, and it is Congress who will determine that. ligated and you were not informed. Before that was
allowed under the law and is now declared
Sec. 12 Sanctity of the Family UNCONSTITUTIONAL.
This is the bases on questioning the constitutionality of Those were the provisions that were declared
RH Law, otherwise known as RA 10354. UNCONSTITUTIONAL.
TN: That it may violate or threat the life of an unborn. To Sec. 16 Balanced and Healthful Ecology
the controversy or issue on when does life start,
because of the use of contraceptives. They are saying in Case in point: Oposa vs. Factoran (id). All the rest of the
effect it promotes abortion, (unsaon man nimo pag abort cases were decided taking into consideration this case.
kung wala paman gani) it prevents fertilization, because This is a landmark case. The point that was emphasized
they are saying precisely that should start from the in the Oposa case, which was reiterated in succeeding
contact. It cannot be understood. environmental cases, that this is Self-Executing. You
dont need legislation in order to enforce it. The SC also
What must be emphasized is that there is no violation of emphasized the fact that this is a public right of the
the rights of the unborn according to the SC because people. This is as important as the guaranteed
what is being protected is the fertilized ovum from being protection under Art. III.
expelled. It does not allow abortion. They are trying to
give access to the poor women to protect their Sec. 17 Priority to Education
reproductive health in having so many children as a kind
This is with reference to giving priority to education. This
of means of leisure so that they can enjoy without paying
is always invoked by the students against tuition fees
for it. Since they have access to contraceptives, they will
hike, that the government should give priority to
have more children, and more mouths to feed. For as
education by subsidizing, especially the government There is no such thing. Our local governments are not
universities and colleges. This is merely directory. independent from the National Government. They are
still under the control and supervision of the National
General Rule: The provisions in the constitution are Government.
mandatory.
Q: Who has the control of Local Governments?
Q: What are the exceptions? What are the provisions in
the Constitution that is not mandatory? A: It is Congress
A: Sec. 17. It is merely directory in the sense that even Q: Who has the supervision?
if its not followed, there canot be no violation of the
Constitution. A: It is the President
According to the SC, as it was emphasized in the Sec. 26 Equal Access to Opportunities for Public Office/
Carague vs. Guingona (id) case, the government is Prohibition of Political Dynasties
never precluded or deprived from attending to other BAR Q: Is Political Dynasty Unconstitutional?
imperatives of the government. There are other needs of
government that needs attention, not just education. But A: Until there is a code that punishes political dynasty
there is that direction or instruction to give priority. And for penalties and activities defined as such, there is
so with that priority, we have free education, in political dynasty to speak of as of today.
elementary and even secondary like night school. But in
The thing is you are given equal access and opportunity
college, you cannot college education because this is
to participate in governmental affairs. So just because
not mandatory. The government can only provide for
you have that right, you can demand.
State Colleges and Universities with low cost tuition fees
or otherwise grant scholarship to deserving students in
college. Like you have the case of Pamatong vs. COMELEC,
G.R. No. 161872 April 13, 2004 who wanted to become
This is on the indispensible role of the private sector. the President of the Republic, however he was declared
This is part of the Non Governmental Organizations and to be a Nuisance Candidate. He invoked Sec. 26 saying
to implement this you have like, allowing them the that I have the right to equal opportunity and access to
chance to participate in governance, such as the public service, why are you denying me of this right.
establishment of the party-list system. Wherein they can
have the chance or opportunity to become members of SC said that this is not self-executing. There are laws
the government. providing for limitations and qualifications. He was
running against Estrada. Nobody knows him, he does
Sec. 22 Indigenous Cultural Communities not have the money to campaign, so Nuisance
candidate, you are disqualified.
On the promotion of indigenous cultural communities
within the framework of national development, this was The "equal access" provision is a subsumed part of
always invoked in the case of Bangsamoro. Political Article II of the Constitution, entitled "Declaration of
Entity, and the concepts of Ancestral Domain and Principles and State Policies." The provisions under the
2
Ancestral Lands, this will be discussed when we go to Article are generally considered not self-executing, and
the topic on Regalian Doctrine. there is no plausible reason for according a different
treatment to the "equal access" provision. Like the rest
Sec. 25 Autonomy of Local Govts.
of the policies enumerated in Article II, the provision
To ensure local autonomy. There will be a separate does not contain any judicially enforceable constitutional
discussion on this on Art. X. Suffice to say what is now right but merely specifies a guideline for legislative or
3
relevant is the Bangsamoro in relation to the framework executive action. The disregard of the provision does
agreement. I suppose once it is passed there will be a not give rise to any cause of action before the courts.
question later in the future regarding its validity. What is
Sec. 28 Honesty and Integrity in Public Service
emphasized is Local Autonomy. Local Devolution of
Services rather than Decentralization of powers. This is with regards to the mandate of the government to
maintain honesty and integrity.
Q: What do you mean when you say Decentralization of
Powers? You have now the requirements of SALN Statement of
Assets Liabilities and Net Worth, they are also abusing
A: It is the transfer of powers from the National
this. What happened? Because of this, it took no less
government to the Local Government
than the Chief Justice of the Supreme Court being
impeached because of his failure to state correctly his
statement of assets and liabilities. Why is that that after are considered as full discretionary power of the each
that, almost all the members of Congress corrected their branch and therefore as a rule they cannot interfere with
SALN. Why did they not give him the chance to correct the two other branches in the government but the
it? Because under the law it provides for reservation that confusion will usually be resolved because corollary to
if it is incorrect, you are given a period of time within the separation of powers to balance the power where
which to make the necessary corrections to state the there is a checking and sometimes the powers are
actual assets and liabilities that you have. shared and thats what we called principle of blending of
the powers.
Q: As part of accountability should it be disclosed to the
public? On the checking for example, in the making of the laws,
we have the president power to veto although it is within
A: There is already a recent decision of the Supreme the full discretionary power of congress to make laws,
Court on this matter. There is this order of the SC that power can still be checked by the president through
prohibiting the disclosure of the assets and liabilities. its veto power likewise, the same power can be checked
The Justices and Judges were saying, Ah we can be ultimately by the SC in the exercise of judicial review.
kidnapped for ransom because the public knows our Thats checking.
assets and liabilities. But recently in 2013, the SC was
saying that these are public records, and should be In the blending of the power or the sharing of the power,
disclosed to the public as part of public accountability take for instance the preparation of the budget, the
subject to rules that may be prescribed in the disclosure. budget primarily under the constitution is prepared by
[2013 case involving the SALN of lieutenant focuses the executive department the president that is so
more on AMLC freeze order, this 2012 case is more provided in the constitution but the constitution also had
appropriate] it shared with congress by requiring the president to
submit the budget to congress for appropriation. So we
RE: REQUEST FOR COPY OF 2008 STATEMENT OF have the stages in the preparation of the budget and
ASSETS, LIABILITIES AND NETWORTH [SALN] AND finally in the enforcement. The budget will be submitted
PERSONAL DATA SHEET OR CURRICULUM VITAE within 30 days from the opening of the regular session of
OF THE JUSTICES OF THE SUPREME COURT AND congress to congress for appropriation the bill however
OFFICERS AND EMPLOYEES OF THE JUDICIARY. should originate or should start or initiated by the House
A.M. No. 09-8-6-SC June 13, 2012 of Representative. Your appropriation law is passed and
The Court notes the valid concerns of the other then it will be submitted to the president, the president
magistrates regarding the possible illicit motives of some under his veto power can veto it not necessarily the
individuals in their requests for access to such personal whole thing this is the exemption. He can make itemized
information and their publication. However, custodians veto as to the amount or as to particular project because
of public documents must not concern themselves with it goes to show that the president has the discretion to
the motives, reasons and objects of the persons seeking identify projects to which the money should be extended.
access to the records. The moral or material injury So, the one who propose is first the congress and the
which their misuse might inflict on others is the one who spends the money from the purse it is the
requestors responsibility and lookout. Any publication is president under the principle of separation of powers or
made subject to the consequences of the law. While discretionary powers they cannot be intervened with.
public officers in the custody or control of public records
have the discretion to regulate the manner in which Q: Assuming that the general appropriation act was
records may be inspected, examined or copied by passed and approved by the president, what would be
interested persons, such discretion does not carry with it the next step?
the authority to prohibit access, inspection, examination,
or copying of the records. After all, public office is a A: It would be enforced.
public trust. Public officers and employees must, at all Q: Who is going to enforce the budget?
times, be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency, act A: Under the constitution, it is the presidents power to
with patriotism and justice, and lead modest lives. enforce.
E. Checks and balances Then finally, oversight function of congress to determine

Q: How was this violated? if indeed the funds of which that were appropriated for
certain projects as identified in the general appropriation
In the exercise of the powers incumbent, we have three act had actually been implemented and they would pass
branches - executive, legislative and judicial the laws or determine or review whether they were effective
powers are granted by the constitution. For as long as or not. Thats oversight function of congress. Thats the
the express grant of powers by the constitution, these process of budget preparation.
Q: With respect to PDAF applying these steps, how does A: Theres more on to the delegation on the power rather
the separation of powers violated? than confining it to a branch on what could be the branch
to exercise. And thus, we have the exception called
A: So you have the president submitting the budget, they permissible delegation of powers.
appropriate funds. In accordance with the budget that
were submitted by the president, that may include the Q: What would be on the delegation of legislative
PDAF allotted for members of congress but it does not power?
say exactly particular projects for which this PDAF are
being allotted for because that function is the function of A: This power is primarily assigned to congress. The
the president. It is for him to spend the money and constitution says this power may also be delegated to
identify the projects. Now then, under the law of PDAF it another entities or individuals in the government.
authorized the members of congress to identify the So lets have the exceptions.
project for which the funds are appropriated for.
The exceptions are:
Q: In effect, interfering into what?
1. delegation to the president (sec 23 and 28 of art.
A: The execution of the general appropriation act. Thus,
6);
a violation of separation of powers. Also, it violates the
delegation of powers because that power to identify the
2. delegation of the power to the administrative
project under the constitution or expenditures of the bodies under the executive department under
funds is assigned to the president and instead the the principle of subordinate legislation;
president refer it to the senators to identify what projects 3. delegation of powers to local government units
are they going to support their PDAF for. under RA7160;
4. delegation of the power to the people under art.
Basically, that were the reasons that were advanced by
6 sec 32 & RA 6735.
the SC in saying that there was a violation of the
separation of powers and, even more on the provisions With regard to sec. 23 this is the emergency power that
of the constitutions were violated because of PDAF. may be delegated to the president.
We have many old cases where they is always a Q: So if youre ask in the MCQ, where does this power
discussion on the separation of powers. If there is any originate?
case that would reach to the SC involving the president
and congress, its always on the question of A: It originates from the congress then delegated to a
usurpation/interference in the exercise of these powers law in order for the president to exercise the power.
and thus violative of the separation of powers and
ultimately it is the SC that decides on it, through the So, in as much as this is a delegated power, it is a
exercise of judicial review. limited power. No less than the constitution sec 23
enumerates the limitations on the exercise of the power.
F. Delegation of powers 1) There should be a law or statute authorizing the
In connection of the separation of power is the non- delegation in cases of a war or a national emergency.
delegation of powers. The rule is in as much as the
TN: because this has become controversial when
constitution assigned each branch its powers, then it is
president arroyo issued Proclamation 1017 declaring a
establish for that branch to exercise. It cannot just simply
state of national emergency. If you are to compare this
delegate it to someone else simply because they are
to a declaration the existence of the state of war, under
afraid to exercise their power or they dont like to
the constitution it is clear that it is for congress to do so
exercise the power.
because the purpose of which is to determine whether
Q: So, in as much as the delegated power, why the emergency power should be delegated to the
delegated? Who delegated the power? president in case of war, under sec. 23.
A: the people through the constitution. The constitution Q: So the question on the issue whether or not can
assigned the powers and the people elect the declare a state of national emergency? Should it be
representatives to exercise to rule the power to each congress to do that, as a prelude to or a condition to a
particular branch. So what has been delegated, is now delegation of emergency power? It is not then a
the principle, cannot be delegated to another delegate. usurpation of legislative function to declare a state of
Thats the general rule. national emergency, so that congress will have a reason
to delegate the exercise of emergency power to the
Q: But what happened in reality because of the growing president? What was the decision of the SC on this
complexities of the needs of the people in the society? matter?
A: The SC in the case of David et al vs. Drilon and the constitution has expressly provided that only
Exec. Secretary GR 171396 May 3, 2006, SC was congress can make such a declaration. While the
saying that there was no violation at all of the separation president as the commander in chief may declare war
of power neither the non-delegation of powers in this without a declaration of the existence of a state of war,
case because the president being the chief executive is he cannot exercise emergency powers nonetheless.
in the best position to know the state of peace and order
in the country as the PNP is directly under the The exercise of emergency power is only temporary,
supervision of the president. As to whether there is any meaning as long as the war exists, he will continue to
threat to national security the president is in better exercise the power provided that it will not last until the
position compared to congress, as the national defense next adjournment of congress; automatically the
and the AFP are directly under her control and exercise of the power will be withdrawn.
supervision. In other words, the president, as the TN in an MCQ: There is no need of a statute or a law to
commander in chief of the armed forces, all that she did withdraw the power from the president by congress, by a
was to call upon the armed forces to assist her in the mere resolution it can be withdrawn (a resolution does
performance of her function which is so provided under not require the signature of the president) so that the
the constitution. Therefore, there cannot be a violation of president will not have a chance to veto the withdrawal
separation of powers. But in the declaration of the of emergency powers from him.
existence of the state of war, it is not for the president to
do so because the constitution expressly provides that it Aside from sec. 23 you have sec. 28 on tariff powers of
is the congress by 2/3 votes. (BAR) the president wherein the president also has the power
to tax such as: tariff rates, import/export quota,
Q: (BAR) what if there is no declaration of the existence wharfage dues, and other tax impost and assessment.
of the state of war? Can she not declare war then being
the commander in chief? TN: this has to be expressly delegated to the president,
the standard should be within the framework of the
A: She was never precluded from declaring war even if national development of the economy of the country.
there is no declaration of a state of war or she can
exercise the emergency power such as disbursing funds Also, TN: the case of Abakada Guro Party List v
in the prosecution of the war because there cannot be a Purisima GR No.166715 August 14, 2008 recall the
delegation without the congress declaring the existence increase of VAT from 10% to 12% where there was an
of the state of war. So you make a comparison, in the accusation that the president usurped legislative
case of a declaration of national emergency or state of function by declaring an increase of the VAT, but it was
rebellion. clarified by the SC that while the president has the
power to tax, that does not include domestic taxation
While it is true that the president can declare a state of because such power is vested in congress. In this
national emergency without a law being passed case, there was no usurpation of legislative function
authorizing her to do so, she cannot however, exercise because all that the president did here was to ascertain
emergency power in relation to it because sec. 20 is the facts whether the requirements for an increase of
the VAT as provided in the law were present because
clear that there has to be a statutory law giving the
these offices that provide for the information are under
exercise of the power to the president; this is part of the her, and when she learned that all requirements under
reason why partly the Proclamation 1017 was declared the law have been complied with, she had no choice but
unconstitutional. to implement the increase. She just ascertained the
facts, and when found to be existing, she just
Unlike in a declaration of state of war, the president can
implemented the law, she did not make the lawthat
still declare war even without a declaration of the function is exclusive to congress in so far as taxation is
existence of a state of war provided that she does not concerned.
exercise emergency powers. It is only temporary, the
purpose of which is only to carry out the proper and Then you have the exercise of the legislative power by
necessary defense policy of congress. the administrative bodies. So you have the
departments, agencies and bureaus of the government
A declaration of state of war is not the same with a authorized to promulgate rules and regulations in order
declaration of a state of national emergency. A to implement existing laws. First of all it presupposes
declaration of a state of national emergency can be a the existence of a law passed by congress, and as
prelude to a declaration of martial law or suspension of much as the law cannot cover everything, as theyre not
the privilege of the writ of habeas corpus. It is still within experts in all fields. You have the experts coming from
the power of the president to declare being, not only as the different administrative bodies providing for details,
the president, but also as the commander in chief of the parameters or boundaries within which you implement
armed forces. In the matter of declaration of state of war, the law for effective implementation for the promotion of
the general welfare by way of promulgating rules and Finally, we have this requirement on, the rules and
regulations. regulation promulgated should be with the imprimatur of
the head of the department it is not just by the chief of
Q: Why is this considered as a delegation of legislative the bureau. Case in point, you have People v.
power? Echegaray GR No.117472 February 7, 1997 on the
A: Because these rules and regulations have the force manual relating to the implementation and execution of
and effect of laws, which means that if you violate the
the lethal injection. There was a law which imposes
rule, it is tantamount to violating the law itself, which is
death penalty using the lethal injection.
only being enforced by the rules and regulations. Thats
why we call it implementing rules and regulations (IRR). Q: Who is in the best position to promulgate the rules on
It is what we consider as subordinate legislation, how to do it?
providing for details in the contingent provisions that will
at least anticipate how the law might be enforced A: The experts from the Bureau of Corrections and Jail
effectively, not just at the present time, but also the Management. However in this case, the promulgated
future needs of the people in relation to the law. rules were only signed by the Director of the Bureau of
However, there are certain requirements you have to Corrections, it was never approved by the Secretary of
follow, certain standards, like it has to be complete: you
the Department of Justice. SC emphasized that while a
have to pass the completeness test and sufficiency of
standard. In other words, there is nothing that is left to bureau may promulgate rules and regulations as an
the administrative body with what the law is, all they do administrative body, it should be however, with the
is to simply apply the law by promulgating rules and imprimatur of the superior of the department under which
regulations. It is more of rule execution rather than law the bureau belongs.
making, rule executing or rule making to implement the
law. Then we have the delegation of the power to the LGUs.
This is important!
TN in relation to the completeness test: read the case of
Q: Among the government units, what are the political
Defensor-Santiago v Ramos (id) the resolution of the
subdivisions?
Comelec implementing RA 6735 on the initiative on the
amendments to the constitution, was declared A: autonomous regionsARMM (which will soon be
unconstitutional because in the first place, RA 6735 did replaced by the Bangsamoro Political Entity (BPE) as
not provide for procedure on how to propose
soon as the framework agreement is passed into law),
amendments to the Constitution through charter change
provinces, cities, municipalities, barangays.
by the people directly, there is nothing in the law. So
how can the Comelec then promulgate rules that are Our system of government is unitary, although we are
absent of any authority by any law because the law is trying to establish local autonomy.
insufficient or not complete.
Q: What is the extent of local autonomy?
Then you also have to pass the sufficiency of standard:
there has to be a sufficient standard on the A: There is no decentralization of powers rather only
promulgation of the rules and regulation. decentralization of administration. There cannot be a
state within a state. If you consider the Bangsamoro as a
TN: The most recent decision regarding that is the case sub-state or a juridical entity, then it will be contrary to
of Gerochi v Department of Energy GR No. 159796 the provision of the constitution relating to the system of
July 17, 2007, relating to the EPIRA law that imposes government that we have under the 1987 Constitution. It
universal charge on electricity distribution. There was an can only be considered as an autonomous political
accusation against the department of energy (DoE) that
subdivision.
it was usurping legislative function because in effect it
imposes taxes on the distribution of electricity. The Q: With respect to the delegation of legislative powers,
Supreme Court held that this was not taxation power can it (BPE) form its own laws?
that was exercised by DoE because it has no power to
do so, that power is vested in congress. What they did A: Yes it can, the same with other political subdivisions.
was to promote the general welfare. Promotion of However, BPE may be special to a certain extent
general welfare that was the sufficient standard, because theyre given more independence as compared
universal or national electrification, distribution of to other political subdivisions. These are embodied in the
electricity all over the country for the promotion of the
framework agreement. Anyway, the general concept
general welfare. When the DoE imposed an amount in
here is that they will have their own laws that will be in
the general fund for universal charge for the purpose of
adding funds to be used in the distribution of electricity conformity to the culture of the people of the different
all throughout the country. provinces composing the Bangsamoro.
TN in so far as the province and the others: can they legislative body, may it be national or local, to propose;
pass laws? and the people to approve or reject them in a
referendum.
Yes.
That principle was raised as an issue in the PDAF
Q: This is delegated by what law? controversy: that there may be a violation of the
A: RA 7160 otherwise known as the Local Government delegation of the power to congress in so far as
Code under the general welfare clause. identifying the projects to which to spend the public
funds for because the manner of spending as regards to
TN: the delegation of the power involves passing laws how much is to be expended, it is the presidents power
that are not contrary to the constitution. Likewise, it for as long as it is included in the General Appropriations
should not be in violation of any existing laws passed by Act (GAA). Apparently, in the GAA what is only
congress because LGUs cannot rise above the source of mentioned are those funds for projects for country
their authority. Therefore, they cannot pass a law in the development, but as to the identification of specific
guise of promoting the general welfare while prohibiting projects, they are not stated in the GAA. That
an activity that is allowed under existing laws. They may supposedly, it is within the power of the president to
only regulate the activity, but never prohibit it. Similarly, identify and implement, and not for congress. By giving
they cannot in the guise of promoting the general that power to congress in effect, there is a violation of
welfare, allow an activity that is prohibited under existing the non-delegation of powers. In this particular case,
laws. Neither can they pass laws that will amend the executive power.
national laws. TN: Cruz v Paras G.R. No. L-42571-72
July 25, 1983 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
One of the issues raised with PDAF is that it is a determine the projects). So this was questioned again in
violation of local autonomy because the people did not 2012 in the Lamp case (Lamp v Secretary of Budget
have the chance to determine what projects they need and Management), but the SC said, case dismissed,
because it is determined by the congress (which there is no evidence to show that the power is violated.
supposedly is none of their business as far as LGUs are Until finally the Belgica case (Belgica v Ochoa) wherein
concerned). the SC said that indeed there was a violation because in
reality it is the congressmen who determine the projects
Suffice to say with respect to delegation of powers, the
and determine the beneficiaries (in fact they use to get
LGUs have the power however limited.
20% until finally it becomes 100% because the
Then there is the exercise of the legislative power by the beneficiary does not exist at all).
people.
When you take the bar this will still be a hot issue, so
Q: Why the need for a delegation when sovereignty compare the cases I mentioned: Guingona v. Carague
resides in them? G.R. No. 94571 April 22, 1991 , Philconsa, LAMP,
Belgica so you would have a better understanding of the
A: Because we need a particular mechanism or issues. Not only was there a discussion on the
procedure on how the people can do that. Sec. 32 of Art separation and non- delegation of powers, there was
VI mandates that Congress should pass a law that would also a discussion on judicial review, i.e., the elements of
provide for the procedure, and thus RA 6735 was judicial review on the procedural aspect (especially in
passed. Under this law, the people can propose the Belgica case regarding the concept of
amendments to the constitution. transcendental importance)]
TN: Amendments only!

Those are the important principles you should remember
The people can also propose statutes through the for bar examination purposes with respect to
process of initiative and referendum. Likewise, the local republicanism.
people can propose local legislative acts or resolutions,
G. Forms of government
or ordinances through the process of initiative and
Let us now go to the purpose of a government. One of
referendum.
the elements of a state is the existence of a government.
There are important forms of government which are

TN the difference between initiative and referendum: In important for purposes of the Bar examination.
initiative, people directly propose, go through the
According to the number of rulers
process. Whereas in referendum, it will be for the
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.
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
otherwise known as the Malolos Republic. It was complexion, but the majority in this case decided to deny
never recognized by the Family of Nations because the release of Indac in his petition for habeas corpus]
it only lasted for a month. When it was introduced it
died in its natural death. J. Perefectos dissent:
There was no government to speak of at least as a

Santiago Indac was sentenced for theft to an aggregate
de facto government against the de jure government
maximum penalty of 24 years, 11 months and 11 days,
of the Spaniards.
which he began serving on March 28, 1944, in criminal
cases Nos. 2332 and 2333 of the Court of First Instance
3. The second is that which is established and
of Manila.
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 His wife now seeks his release by habeas corpus.
paramount force
There is no question that the decisions in the two cases
Another kind of de facto government is that which is were rendered by a court under the Japanese regime in
established by the foreign military troops in a 1944 which, according to our opinion in Co Kim Cham
defeated territory. This is called as Government of vs. Valdez Tan Keh (L-5, 41 Off. Gaz., 779), formed part
Paramount Force or Belligerent Occupancy. This of the processes declared null and void in one of the
was the kind of de facto government that we had proclamations of General Douglas MacArthur.
during the Japanese Occupation under the
leadership of the Red, the de jure government being There is also no question that the scrap iron, electrical
the Common Wealth Government which was supplies, cables, and fixtures stolen by the prisoner from
the Japanese imperial army formed part of its vital
established by Filipinos under the Second Philippine
supplies; and petitioner contends that the stealing of the
Republic under the leadership of Laurel can only be
them was a form of sabotage, directed against the
described as a de facto government. enemy, for the purpose of weakening him.
Consequences of the Change in Government No copy of the decisions could be presented to us, and
Q: TN What are the consequences or effects of having there is no way of ascertaining the circumstances under
this kind of government while the Commonwealth was which the prisoner committed the thefts. Considering the
still considered as the de jure government? fact that the Japanese army's ownership of the stolen
A: Under a de facto government or belligerent goods is, at least, doubtful, upon facts of general
occupancy, the political laws of the de jure government knowledge and of which the members of this court had
are merely SUSPENDED. They are not automatically ample opportunity to learn the Japanese not having
abrogated. The municipal laws still apply unless they are brought, during their invasion and occupation, any scrap
repealed by the belligerent occupant. iron, but collected it from all parts of the country by illegal
means, to be sent to Japan to bolster up their dwindling
Q: What were the effects of liberation on the de jure materials of war and the electrical supplies, cables,
and fixtures which were stolen by the prisoner were most
government? What were the effects when the Japanese
probably commandeered from our people; xxx Under
left the country? The Doctrine of Postliminum such circumstances, although we understand the fact
A: Political laws passed by the belligerent occupant or that the prisoner has been convicted and sentenced to
de facto government were automatically considered as the heavy penalty of from 11 years to 24 years of
repealed or nullified or abrogated. imprisonment an unprecedented cruelty as penalty for
Non- political laws that were passed by the simple theft the prisoner explaining that the Japanese
belligerent occupant are still considered as good and military authorities had instructed all courts to impose
valid. heavy penalty on crimes having the nature of political
Decisions or policies of the government which are offenses, we are of opinion that, after liberation, the
tainted with political complexion are automatically prisoner is entitled to be immediately released as, from
abrogated. the point of view of our people he did not commit any
punishable act.
Indac vs Director of Prisons G.R. No. L-1133
November 29, 1946,
Penal laws are not political laws. It has nothing to do
[Judge was actually talking about Justice Perfectos with the relationship of the government and the
dissent in this case by saying that the judgment of governed. The judgment is supposed to be valid. But
conviction was void because it was tainted with political what complicated the situation was, apparently the
conviction was tainted with political reasons because
one was charged with robbery. The reason of the the Bangsamoro Juridical Entity. The difference is in the
robbery was to undermine the operation of the Japanese Bangsmoro Juridical Entity, there is no ratification from
military authorities. He was stealing cables of the the people who might be affected by it. Unlike in the
Japanese in order to undermine their operation. The Bangsamoro Political Entity there is a framework
judgment was tainted with political complexion, in which agreement signed by the president to be submitted to
case it should be abrogated. The Judgment was Congress. Congress would then pass a law adapting it.
invalidated. Otherwise, in the absence of any political Before adapting it, they will discuss it and they will
complexion, penal laws are non-political and they should always consider if the contents is within the framework of
be respected as good and valid notwithstanding the the provisions of the constitution. Assuming that it will be
liberation of the people from the de facto government. passed into law, according to the framers of this
agreement, it is more democratic because it will still be
||| (Estrada v. Desierto, G.R. Nos. 146710-15, 146738, submitted to the people for ratification. According also to
March 02, 2001) that framework, there will be an election of government
officials, they will not be appointed. There will be election
Q: Was the Arroyo government a de jure government? of members of legislature who will elect the head of the
A: It was resolved by the Supreme Court that the Arroyo Bangsamoro Entity. Its like a parliamentary system of
government was a de jure government as it was done or government. They will be independent in the making of
it happened by way of succession when Pres. Estrada their own laws. Laws would be different from the national
was considered resigned. government.
Q: What is the Difference between Federal and Unitary To make it more acceptable, they are saying that the
System of Government? (BAR) name is just changed but it will be the same as an
autonomous region, just a mere replacement to ARMM.
A: In Unitary government the powers are concentrated It is however different to ARMM as regard to the concept
in the national government; the local government is and operation.
dependent upon the national government.
Q: What is the difference between Martial Law, Military
In Federal, the executive, legislative, and judicial Government and Revolutionary Government?
powers are distributed equally between national and
local wherein the local government is considered A: When a government is under Martial Law, it is still
supreme within their own sphere, independent of the civilian. The head of State will only be assisted by the
National government. Armed Forces. It doesnt make it a military government.
There will be more or some regulations on civil rights but
A good example is the government of U.S. The there is still the bill of rights.
federal government as national government and the
different states with their respective local governments Military government - the president is the head of a
considered as the local counterparts. These different military group rather than one who is ordinarily the
states are independent from the federal government. president of a civilian government. Executive and
They can make their own laws for as long as it is not legislative powers are removed from a civilian authority
contrary to the US constitution. Different states have and transferred to the head of the military government.
different laws. The common denominator is the laws The government is more controlled by the military. It is
should not be contrary to the US Constitution. (TN) Laws usually established after a war between two countries or
against the federal government or federal laws are states, not just a coup dtat within. It technically
alright, but not against the Constitution. involves two countries fighting against each other,
thereafter the military government is established in the
We are trying to establish a federal system by having invaded/defeated territory. An example would be the
this concept of Bangsamoro political entity. How we talk kind of government we had at the beginning of the
about it without violating the constitution, we will wait and American Occupation. The government then was under
see if there are any objections to that. Basically you are the President of the U.S. Pres McKinley, the commander
practically establishing a substate that is prohibited by in chief until there was a transfer of power to the civilian
the constitution. this time by the US Congress, when the land laws were
enacted. In laymans understanding, a government ran
Province of North Cotabato vs. GRP GR No. 183591 by the military.
October 14, 2008 enumerates the objections in the
constitutionality of Bangsamoro Juridical Entity. More or Revolutionary government - a government that is not
less this Bangsamoro (political entity) is patterned from based on any constitution. The establishment of the
government is based on the direct action of the people 2. Constituent v. Ordinary

who directly seize the power from the incumbent Constituent function is the power of Congress propose
government and establish a government of its own. amendments to the Constitution acting as a constituent
assembly, it is not a law-making power. On the other
In these kinds of government (military, martial law, hand, Ordinary function is the power of Congress to
revolutionary) the leader is very powerful because both make laws and changes in the law.
executive and legislative powers are exercised by the
Other Functions of Congress that are not law-making
leader of the group, usually a member of the military. power
Even judicial function may be exercised by the leader of
the group. 1. Electoral Function
There are also other non-legislative functions vested in
During martial law, President Marcos exercised both Congress like electoral function, whereby Congress
legislative and executive power, even judicial powers. canvasses electoral returns for the Vice President and
Cases against civilians who were charged of violations Presidential positions. Ordinarily this function is given to
against national security were not tried before the civilian the COMELEC however, by the express provision of the
courts. They were tried before court martials, whose Constitution, it is vested in Congress.
decisions are appealable to the commander in chief of
the armed forces. 2. Concurrence of Appointments made by the
President
It is for Congress to concur appointments made by the
In the Constitution of 1973 and 1987, notwithstanding
Presidents to certain positions in the Government such
the definition of martial law, there is always at all times as, heads of the executive branch, officers of the AFP,
the supremacy of the civilian authority. The 1987 Constitutional Commission appointees (COA,
Constitution provides safeguards to make sure that we COMELEC, and CSC), and regular members of the JBC.
will not have the same experiences we had under the
Marcos administration during Martial Law. 3. Concurrence of Treaties made by the President
The government of Cory was a Revolutionary 4. Impeachment - Described somehow as quasi-

Government. All executive and legislative powers were judicial function on the part of Congress.
exercised by Cory Aquino. Why? Because the 1973
Constitution that justified the existence of the Batasang Others
Pambansa was not recognized by the government of
Cory. In other words, there was no legislature. In its 1. Congress
absence it was for Cory Aquino to exercise legislative Q: Where is Legislative Power Vested?
powers that allowed her to promulgate her own A: The legislative power shall be vested in the Congress
Constitution by issuing Proclamation No. 3 The of the Philippines which shall consist of a Senate and a
Freedom Constitution. Until there was the enactment of House of Representatives, except to the extent reserved
to the people by the provision on initiative and
Proclamation No. 9 creating the constitutional
referendum. (Art. VI, Section 1)
commission to draft the 1987 Constitution, which created
a legislature. The first thing that had happened was in 2. Regional/Local legislative power
1987 when we had election for the members of
3. Peoples initiative on statutes
Congress that became the legislature. Finally the
The Reservation in the People to make Laws
concept of Revolutionary government was diminished by
having the complete branches of government under the The Congress shall, as early as possible, provide for a
1987 Constitution. system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and
III. Legislative Department enact laws or approve or reject any act or law or part
A. Who may exercise legislative power thereof passed by the Congress or local legislative body
Q: What is Legislative Power? xxx (Art. VI, Section 32)
A: It is the power to propose, enact, amend or repeal
laws. So, since there is a constitutional mandate to provide a
system of initiative and referendum, Congress has
Different Kinds of Legislative Power: enacted RA 6735.
1. Orginal v. Derivative
Original power is the power vested directly in the people, a) Initiative and referendum
who is the source of Sovereignty. What is exercised by 4. The President under a martial law rule or in a
the legislature is merely a Derivative power. revolutionary government
B. Houses of Congress the Philippines, as may be provided by law. (Art. VI,

Section 2)
TN: We have a Bicameral Congress.
TN: The composition of Senators cannot be altered by
Qualifications an ordinary law (except if the constitution would be
amended for that matter) as it is fixed by the
Q: Are you qualified? Constitution, while that of the House of Representatives
can be increased as expressly provided by the phrase
A: Yes. Definitely. Even if you did not finish law? Yes. unless otherwise fixed by law.
Because all that is required is able to read and write. As
long as you know how to sign your name, you are 2. House of Representatives
qualified. One has to be a natural born. For senator 35 For the House of Representatives:
yrs, house of Representatives at least 25. The House of Representatives shall be composed of not
more than two hundred and fifty members, unless
TN: on the day of election, not on the assumption of otherwise fixed by law. (Art. VI, Section 5)
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 a) District representatives and questions of
Philippines if you are running for the Senate 2 years and
apportionment
1 year for the house of representatives except for the
Composition of the Lower House
party list sectoral representation, the residency Is not
required. Insofar as the lower house is concerned, it is composed
of both representatives from the districts and party-list
Special Elections
representatives. There is some issue with regard to
TN: on special elections. In case a vacancy occurs in district representatives as it would relate to the
either house before expiration of the term of office, apportionment of districts and its voters.
should there a special election, is it mandatory?
In making legislative districts it is required that territories
A:The answer is no. Special election is discretionary. contiguous, compact and adjacent, as far as practicable,
And if special election must be called by congress or the to another to prevent gerrymandering. Gerrymandering
house concerned, vacancy must be occurring not less means lumping of voters, who may be from separate
than 18 months. Meaning if vacancy occurs within 18 areas or districts, into one district or place in order to get
months, there is no more election. You just have to wait a favorable concentration of votes to a particular party.
for the regular election. If vacancy occurs in the house of
On another point, TN of the number of registered voters
Representatives within one year, again you just have to
per district to be considered as such because the
wait for the regular election. No more special election.TN
Constitution is silent on this matter. TN of jurisprudential
1. Senate principles pertaining to this issue. The Contstitution is
Q: How are the members of Senate chosen? silent on the minimum number of voters to be declared
as a legislative district because one province is entitled
A: Under Art. VI, sec. 2, Senators shall be elected at to one district regardless of the population. In other
large. words, so long as it is a province, it is entitled to at least
one legislative district representative.
Q: Is there a possibility that Senators may be chosen
differently as we use to elect them? For a City, the rule is different.
A: Yes, they can be chosen in a different manner Aquino III v. COMELEC, G.R. No. 189793, April 07,
determined by law, as clearly gleaned from the phrase 2010
as may be provided by law (Art. VI, sec. 2). This is There is no specific provision in the Constitution that
illustrated by the prevailing Philippine method of fixes a 250,000 minimum population that must compose
choosing twelve (12) senators every three years. a legislative district.
A different manner choosing may involve as much as The provision draws a plain and clear distinction
changing the election of senators from national votes between the entitlement of a city to a district on one
into votes per region instead. This can be done by hand, and the entitlement of a province to a district on
passing a law. the other. For while a province is entitled to at least a
representative, with nothing mentioned about population,
For Senators: a city must first meet a population minimum of 250,000
The Senate shall be composed of twenty-four Senators in order to be similarly entitled.
who shall be elected at large by the qualified voters of
Aldaba, et. al. vs. COMELEC G.R. No. 188078, 15 Depending on the number of members coming from the
March 2010.||| different districts you will have as many as 20% of them
This has reference to the creation of City of Malolos as a coming from the party list system.
highly urbanized City in order to be considered a
legislative district TN: The following cases in determining qualification in
order to get a seat from the party list:
It was not established that City of Malolos has actual or
projected population of not less than 250,000 population Veterans Federation Party v. COMELEC||| G.R. No.
before May 2010 elections. 136781, October 6, 2000|||
SC: Clearly, there is no official record that the population Barangay Association for National Advancement and
of the City of Malolos will be at least 250,000, actual or Transparency v. COMELEC||| G.R. No. 179271, April 21,
projected, prior to the 10 May 2010 elections, the 2009|||
immediately following election after the supposed
attainment of such population. Thus, the City of Malolos Recently: The case on Atong Paglaum vs. Comelec GR
is not qualified to have a legislative district of its own No. 203766 (April 02, 2013)
under Section 5(3), Article VI of the 1987 Constitution
and Section 3 of the Ordinance appended to the 1987 Q: Veterans Case: it was emphasized there that to
Constitution. qualify for a seat, the party list must garner how many
votes?
Q: Who can apportion a district? A: 2% of the total votes cast for the party list.
A: It is the Congress.
Our perception was, that even with additional seats, you
Montejo v. COMELEC, G.R. No. 118702, March 16, must also get at least 2%, that was the perception. But
1995 the Supreme Court said in the BANAT case that it will
This was in relation to the creation of Biliran as a defeat the purpose of filling up the 20% allocation. Thus
province separate from Leyte. It was the COMELEC it was clarified under the BANAT case that while 2% is
that apportioned these municipalities but was declared required for a guaranteed seat, you may get less than
by the Supreme Court as unconstitutional. 2% for as long as in the ranking in the determination of
the 20% allocation, you would still be included. Even if
The SC emphasized that insofar as the apportionment of you get just 1% of the total votes cast for the party list.
legislative districts, such is a legislative function. Not at Just as long as you first fill up the seats from the party
all a function of the COMELEC. 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
Q: What about the Regional assembly of ARMM, can more than 3 seats, that is the threshold.
they create cities, provinces or legislative districts?
A: No. Important numbers that you should therefore
remember for the Bar exam:
SEMA vs. COMELEC GR No. 134163 December 13,
2000 Total membership coming from party list 20%
SC said that Congress cannot validly delegate to the To get a guaranteed seat 2% (of the total votes cast)
ARMM Regional Assembly the power to create Maximum seats that one party list can get Only 3 seats
legislative districts. The power to increase the allowable
membership in the House of Representatives and to Q: Do you need to represent a sector if you are coming
reapportion legislative districts is still vested from a party list in order to be accredited as such?
EXCLUSIVELY to Congress.
A: Clarified in the Atong Paglaum Case. The SC has
Q: How often can apportionment of legislative districts reminded organizations participating in the party list,
be done? there are 3 kinds:
A: It can be done every after three (3) years from the (1) National Parties or Organizations,
survey. (2) Regional Parties or Organizations,
(3) Sectoral Parties or Organizations.
b) Party-list system
Insofar as the National and Regional Parties or
Party-list System
Organizations, they do not need to organize along
sectoral lines and do not need to represent any
Q: What is the percentage in the composition in the
marginalized and under-represented sector. So they
House of Representatives?
need not represent certain sectors like labor, fisherfolks,
A: Not more than 20% of the House of Representatives.
urban poor, indigenous cultural communities. For as long
as they are organizations, national or regional, they can
be accredited to join the party list system without an election can participate in the party list system only
needing to represent any sector of the marginalized or through its sectoral wing. The sectoral wing is by itself
under-represented. an independent sectoral party and is linked to a political
party through a coalition.
But focused on the requirement of representation
coming from the marginalized or under-represented Another point to TN, this is with reference to
groups are the Sectoral parties or organizations. disqualification of a nominee representing the party list.
They MUST represent these sectors (this is mandatory), That does not disqualify the party list organization itself
sectors like labor, peasants, fisherfolks, urban poor, so long as there are other nominees available to replace
indigenous cultural communities, handicaps, veterans him. That is precisely the reason for the requirement of
and overseas workers. submission of 3 names for the nominees. In case one is
disqualified, there are still others that may still represent
The Sectoral parties or organization must may either be the party list organization. The disqualification of the
(1) marginalized or nominee does not automatically disqualify the party list
(2) under-represented OR (this is now what is clarified from accreditation.
by the SC)
(3) lacking in well-defined political constituency Summary of Parameters in Atong Paglaum case:
In determining who may participate in the coming 13
Q: What does lacking in well-defined political May 2013 and subsequent party-list elections,
constituency mean? theCOMELEC shall adhere to the following parameters:
A: In the case of peasants, klaro man na imong 1. Three different groups may participate in the
members kay farmers. In the case of labor, klaro pud na party-list system: (1) national parties or
workers. But there are too many kinds of professions, so organizations, (2) regional parties or
there arises these professions lacking in well-defined organizations, and (3) sectoral parties or
political constituency, way klaro kung kinsay ilang organizations.
miyembro. Or you have for example the elderly, the
womens sector or the youth. All that is required of them 2. National parties or organizations and
is to have an advocacy pertaining to their special regional parties or organizations do not need
interests or concerns. to organize along sectoral lines and do not
need to represent any "marginalized and
The members of which may not necessarily be a specific underrepresented" sector.
group, for as long as they advocate for the interests of
their sector, they qualify already for accreditation. That is 3. Political parties can participate in party-list
new in this particular case, its a new thing now. It is elections provided they register under the
clearer in other words, in the determination of who can party-list system and do not field candidates
be accredited in the party list. The membership coming in legislative district elections. A political
from the party list has become broader as compared to party, whether major or not, that fields
before, because our understanding then of the candidates in legislative district elections
representation coming from the party list is that it must can participate in party-list elections only
represent a marginalized or under-represented sector of through its sectoral wing that can separately
society, that is only so far as Sectoral Parties or register under the party-list system. The
Organizations. But for those lacking in well-defined sectoral wing is by itself an independent
political constituency, it is enough that there is advocacy. sectoral party, and is linked to a political
party through a coalition.
Another point that was clarified in Atong Paglaum is on
the participation on major political parties. The SC was 4. Sectoral parties or organizations may either
rather unclear on whether they should be allowed to be "marginalized and underrepresented" or
participate in the party list system, their decisions were lacking in "well-defined political
flip-flopping. At one time, the SC said no. But in BANAT constituencies." It is enough that their
they said yes. principal advocacy pertains to the special
interest and concerns of their sector. The
Now in the recent decision in Atong Paglaum the SC sectors that are "marginalized and
ruled that major political parties can participate in the underrepresented" include labor, peasant,
party list system. However, there is a condition to that: fisherfolk, urban poor, indigenous cultural
That they must not participate in the legislative district communities, handicapped, veterans, and
representation. So, Supreme Court said then in this overseas workers. The sectors that lack
particular case that insofar as political parties, they can "well-defined political constituencies" include
participate in party list elections provided (1) they professionals, the elderly, women, and the
register under the party list system, and (2) they do not youth.
field candidates for the district elections. A political party
whether major or not that fields legislative candidates in
5. A majority of the members of sectoral TN of RA 7941 as to what may be accredited. The more
parties or organizations that represent the important part there is those disqualifications for
"marginalized and underrepresented" must accreditation.
belong to the "marginalized and
underrepresented" sector they represent. Q: What are the organizations that cannot be accredited
Similarly, a majority of the members of for the party list system? (BAR)
sectoral parties or organizations that lack (1) Religious group that represents the church. If layman
"well-defined political constituencies" must lang but does not represent the church, it is allowed. Ex:
belong to the sector they represent. The Ang BUHAY, its linked to El Shaddai.
nominees of sectoral parties or (2) Supported by a foreign government or organization
organizations that represent the (3) Supported or subsidized by the Government
"marginalized and underrepresented," or (4) Groups promoting violence or the purpose of which is
that represent those who lack "well-defined to overthrow the present Government.
political constituencies," either must belong
to their respective sectors, or must have a TN, in the BANAT case the SC said that major political
track record of advocacy for their respective parties can participate under the party list provided that
sectors. The nominees of national and they have to run under the sectoral organization, that
regional parties or organizations must was the qualification. Now, you should not also field a
be bona-fide members of such parties or candidate in the legislative district.
organizations.
TN, the matter of advertising or disclosing the name of
6. National, regional, and sectoral parties or nominees coming from the party list. Always remember
organizations shall not be disqualified if some of that in the party list system, you do not elect the
their nominees are disqualified, provided that nominees unlike in the legislative election where you
they have at least one nominee who remains elect the candidate representing the political party, not
qualified. THESAD the political party itself. In the party list, you elect the
||| (Atong Paglaum, Inc. v. COMELEC, G.R. No. 203766, organization.
April 02, 2013)
Not the political party itself. In the party list, you elect
TN: On the party list, read the case of Ang Ladlad LGBT your competition. May it be national, regional, or,
Party v. Commission on Elections, G.R. No. 190582, sectorial. Thus the prohibition against disclosure on the
April 8, 2010,|||That is sectoral representation, names of the nominees in the certified list that must be
representing the marginalized and under-represented
posted at the polling place.
sector of society. In the Ladlad case the SC has
explained the qualifications to represent a marginalized What you see on the certified list are only the names of
group. The SC said in this case that the LGBT qualifies the organizations. Now, at one time in the case of Bara
to be accredited under the marginalized group because Lidasan v. COMELEC, G.R. No. L-28089, October 25,
it has qualified with the following qualifications:
1967, they asked for the names of the nominees of this
(1) there must be possible division or discrimination
suffered by the group, and certainly they are different organizations accredited by the Comelec
discriminated. because they suspected that most of them are relatives
(2) a distinguished characteristic, attribute or experience of President Arroyo, if not friends, and Comelec said that
that defines them as a discreet group. Definitely there is is confidential, that cannot be disclosed. Supreme Court
a distinguishing characteristic. said however, the Comelec abused its discretion
(3) there is present political or economic powerlessness. because that is of public record and there is no
prohibition against disclosure for as long as it is not
According to the SC, ang Ladlad has shown that the disclosed in the certified list. You have seen this in the
LGBT sector has been historically disadvantaged or polling place.
discriminated against because of negative public
perception. And there have been alleged acts of violence We used to have alphabetical names of organizations.
perpetrated against the members of the LGBT Youll notice that most of the organizations start with a
community by reason of their sexual orientation and letter A. what was the election 2016? Not anymore
gender identity. It added that the massive opposition to alphabetical but random. The sequence instead of
the participation of the LGBT in the party list system is alphabetical, there will be a raffle instead. They will listed
by itself demonstrative of the lack of political power, so in the certified list but not anymore alphabetical so they
too is the fact that legislation to prohibit the
will have equal chance.. Short memory raman ta. Kung
discriminatory treatment against them is languishing in
unsay unang nalista, they will also be the only thing that
the Congress.
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
folder na nag-una, usually will get your vote. Now it is full term of all the members of the house to effect the
being written in a certified list, randomly. proposed the increase of the salary.
Q:Can it be decreased by law?

C. Legislative privileges, inhibitions and
disqualifications A:Oh, definitely. There is no prohibition against it.But
Term of Office they are not stupid to passing law against themselves.
So that is impossible.
President and Senate is 6 years. In the house of Now there are some of the perks enjoyed by the
Representatives, 3 years. But not more than 3 members of the congress. The privileges that they enjoy.
successive terms. Common denominator that YOU
SHOULD REMEMBER IN THE BAR, that voluntary TN this may be relevant especially the impending arrest
renunciation or resignation shall not in any way interrupt of the 2 other senators.
in the continuity of the service. It will be considered as
one full term. In the computation of the successiveness Q: Now what are the perks?
of term. A: You have 2 Privileges: Immunity from arrest and
This is what is lacking in the case of the President detention and the freedom of speech.
because there is no restriction in so far as the President Immunity from arrest and detention
completing his term of six years. Is he still qualified to
run for President. Mao ni gipanindigan ni Erap Estrada. For as long as the penalty is only 6yrs or lower, one
He was just saying yesterday that he is going to run as cannot be arrested during tenure. For as long as he is a
President again if Binay will be anointed by President member of congress, he cannot be arrested to make
Aquino as Presidential candidate. That will be his third sure that he will attend the session. Even if he is not
running for election as President. The second time, he attending the session and just sleeping in his mansion,
almost won the election. However the case of Pormento he cannot be arrested if the crime he is charged with is
vs Estrada et al (id) was dismissed by the supreme not punishable by more than 6yrs of imprisonment.
court for the issue has been found to be moot and Definitely plunder is punishable by death as maximum.
academic as he was not elected. That issue has never With the suspension of death penalty, Reclusion
been settled. And as long as the issue is not settled he Perpetua, that means more than 6yrs of imprisonment.
would run again in election. Because the provision Therefore he can be arrested anytime even if you are
regarding the resignation as not an interruption in the attending session in Congress. Trillanes IV v. Pimentel,
continuity applies to only to the members of the Senate Sr., G.R. No. 179817, June 27, 2008 and Pp. vs
and even for local elective officials. They have not Jalosjos G.R. Nos. 132875-76. November 16, 2001
anticipated that of the term of office of the President.
TN: The case of Jalosjos. He was convicted already of
That is still debatable.
rape and the judgment has already become final. Prior
thereto he was reelected as congressman. And so he
Salary of members of congress is only 204k per annum, said in effect he was exculpated or exonerated following
for officers such as the President of the Senate or the the Aguinaldo case in the administrative cases. Supreme
Speaker of the House, that is only 240k per annum. How Court was saying this is different. Your election does not
do they became billionaires? Some. I think not everyone erase your criminal liability. So even if you are reelected,
because some of them are already billionaires when still the fact remains that you are convicted and the
they entered the congress. judgment has already become final and executory. Now
as for the penalty is more than 6 years of imprisonment,
Q:Can their salary be increased? that he will be allowed to attend sessions with escorts
from bilibid, the supreme court denied it saying that
A: Yes. So long as they do not enjoy it. It will be enjoyed
before the eyes of the law he is not special because he
by the members of the next term. Which means, for
is a member of the congress apart from an ordinary
example, dba ang Senate 6 yrs, hor 3 yrs.
criminal. The supreme court did not allow him to attend
Q:You finished already the term as member of the house sessions and in fact he was expelled because the
of Representatives, can you now enjoy the increase if u decision became final and that disqualified him from
run the next election? holding any public office. In the case however of
Trillanes, it was different.
A:Answer is no. Because at the time the salary was
increased, the term of office of the senators has not yet You TN, this is significant if the three senators or sila
been completed. It has to be upon the expiration of the tanan makasohan ug Plunder, wala na mabilin sa
senado. What will happen to the operation of the
Senate? Because they can be arrested and detained of

the penalties more than 6yrs. You cannot detain a congressman going to Manila to
attend session. You can be penalized under the RPC.
TN of the hypothetical question that might be asked on
the bar. What if for example Enrile and Estrada will be Freedom of speech.
arrested, the same with Revilla, they can be arrested
and detained any day as the matter immunity does not You can say anything you want to say under the sun. No
apply. Now, the argument of Trillanes in his case is, you civil or criminal liability. For as long as it is said in the
are not convicted as of yet because of the presumption halls of congress or anywhere else as long as that
of innocence. He wanted to attend session and was member is performing a legislative function. So
approved because according to him when he was committee meetings is included (outside the hall of
congress). This is applied to their agents, meaning to
charged with an offense that is punishable by reclusion
their staff and applies even to their reports. This is
Perpetua.. more than 6yrs imprisonment but he was not
because, it is not limited oral statements delivered but
yet convicted. He said, do not compare me to Jalosjos. also includes or applies to all matters communicative in
Jalosjos was convicted, I am only a detention prisoner. nature is covered in the immunity from prosecution
The case is still pending. I have in my favor presumption maybe civil or criminal liability
of innocence. Supreme court say however in the case of
Trillanes, presumption of innocence does not necessarily TN: There is no immunity to administrative liability, if that
carry with it the enjoyment of civil and political rights. Still would constitute a disorderly behavior. Osmea vs
the case of Jalosjos applies to him. He was not allowed Pendatun, G.R. No. L-17144, October 28, 1960. Where
because he was facing charges that was punishable by the Supreme Court said that the immunity applies only to
more than 6 yearrs imprisonment. civil and criminal. While they cannot be held liable for
damages or be sued for libel or slander, for
Q: By his detention, is he deprived of his duty to function communications or speeches may be written or verbal,
as member of the congress? delivered in the Halls of Congress or while in the
performance of a legislative function, but not for
A: Answer is no. He can continue to perform his administrative liability
functions as a member of congress. Because he is not
yet convicted. The judgment is not yet final. They can It guarantees the legislator complete freedom of
continue to do their job from camp Crame. They should expression without fear of being made responsible in
not be deprived to represent the constituents because criminal or civil actions before the courts or any other
the people, because we have elected them nationwide. forum outside of the Congressional Hall. But is does not
You should not forget that they are not yet convicted but protect him from responsibility before the legislative body
itself whenever his words and conduct are considered by
only detention prisoner. But because of media, we
the latter disorderly or unbecoming a member thereof.
thought that they are already guilty. There is still the
hearing and the presumption of innocence. So even if PROHIBITIONS
they are convicted by the trial court, for as long as
judgment has not become final and executory, they Disclosure (Sec 12)
continue to hold public office unless suspended These are part of the transparency of the government.
indefinitely or if expelled from the roster of Senate That requires the disclosure of financial and business
members or of the House of Representatives. interest of the members of congress to avoid any conflict
of interest. So if they are into the business of real estate,
As to Trillanes, he cannot attend, but he can still they have to disclose that.
continue to do his function. And he did. In fact there was
an issue against him because insofar as his PDAF. He Example: A corporations owned by a congressman,
had expended his PDAF and how is that possible when bidding a contract with government. Unya mo ingon ra
he was detained. Because he continue to perform his sila na thay have already renounced or waived their
legislative function according to him. shares of stock in that corporation in favor of our
children. It is the same, they still own the corporation, as
Trillanes was never denied to continue his functions. So long as you are alive and kicking.
why make an exception with these three others that are
charged with plunder. Unless of course if they are Prohibited and Forbidden Offices (Sec. 13)
suspended. I doubt it. Then they run as president. Free You cannot hold any other office or employment in the
promotion. (Story of Revilla and Jinggoy) Government, or any subdivision, agency, or
instrumentality thereof, including government0owned or
TN, Its security from arrest and detention has always controlled corporations or their subsidiaries, during his
been considered only as a privilege and must be granted term without forfeiting his seat. Neither shall be
in the restrictive sense (it is more of an exception rather appointed to any office which may have been created or
than a general rule)
emoluments thereof increased during the term for which neither a government office nor an office in a GOCC for
he was elected. the purposes of the prohibition in the Constitution.
Senator Gordon therefore can validly serve as Chairman
TN: Two kinds of office which he cannot be appointed of PNRC without giving up his Senatorial position
to, for as long as he is still a member of the congress:
1. Forbidden appointments Q: What kind of office is this that even if you resign as a
- Even if the senator or congressman resigns, he senator or congress, you cannot be appointed to that
is still disqualified for appointment to a particular office?
office when that member of Congress is
responsible to the A: If that office is created during your term or that the
o Creation of the office which he may be emoluments of that office where increased during your
appointed later term. You cannot be appointed to those offices even if
o Responsible in the increase of salary or you resign. This is called the forbidden office.
emoluments of that office
D. Quorum and voting majorities
2. Prohibited/ incompatible appointments Sessions of Congress
- you cannot be appointed to any other positions
in government that are in conflict with your TN: Session of congress may be regular or special. BAR
legislative function (there is also a sine die session)
- Ex. you cannot be appointed as cabinet th

Regular session should be every 4 Monday of July
member without forfeiting your seat during your and it should continue until 30 days before the opening
TENURE (so if you accept the appointment, of the next regular session excluding Saturdays Sundays
then you need to resign) and regular holidays. So there will be recess of 30 days
.
The prohibition is that he cannot be appointed to an Special session- is a session called by the president
office which is incompatible to his office, to a possibility during the recess of congress
of fusion of powers of legislative and executive. For
example, he cannot be appointed at the same time as Sine die session- is where they kill the clock. (US vs
secretary of department under an executive branch. If he Pons G.R. No. L-11530 August 12, 1916.) This is done
accepts, he automatically forfeits his eat in the congress. if expiring na ila term. So they can continue to act on
Many members of congress being appointed to the administrative matters, no more legislative functions.
cabinet of the president, automatically they forfeit. Even They would not consider the clock. So they continue on
for controlled corporations if appointed, he forfeits his administrative matters no longer law making functions.
seat in the congress Usually mo adjourn na sila if the elections is forthcoming,
they will have a sine die session to attend administrative
Gordon vs Liban GR NO. 175352 July 15, 2009. Gordon matters. Examples on matter regarding on canvassing.
was the chairman of the Red Cross. The question is,
should he forfeit his seat in the congress when he was Officers in the congress. TN
appointed or elected as the chairman of the Red Cross.
TN. SC said Richard Gordon did not relinquish his Q: Who are the officers in congress?
senatorial post despite his election to and acceptance of A:
the position of Chairman of Philippine National Red In the Senate:
Cross Board of Governors [Note: This was overturned in 1. President
the January 18, 2011 resolution of the MR which ruled 2. Majority floor leader
that Red Cross is sui generis status not anymore a 3. Minority floor leader
simple private corporation, but the ruling that Gordon 4. Chairmen of the different committees
doesnt violate this prohibition of a Senator]
In the house of representative:
1. Speaker of the house
Q: Why? 2. Deputy Speaker (in the Luzon, Visayas,
A: Because PNRC is a private organization merely Mindanao and representing the women sector)
performing governmental function and PNRC Chairman 3. Majority floor leader
is not a government official or employee. Not being a 4. Minority floor leader
government office, PNRC Chairmanship may be held by 5. Sergeant of arms
any individual including a Senator or House of Congress. 6. Chairmen of the different committees
PNRC is autonomous, neutral and independent of the TN
Philippine government. It is a voluntary organization that Q: How are they chosen?
does not have government assets and does not receive A: by majority votes. Regardless of political party
any appropriation from Congress. PNRC is not part of affiliation. In other words, a president of the house may
any of the government branches; PNRC Chairmanship is
not belong to the majority political party, he may come BAR: if you have immpeachment to remove the
from the minority political party. Like Enrile, he came president or vice president? How do you remove the
from the minority party. member of congress before the expiration of his term of
office?
CASE of Santiago.
Q:What do you mean by majority? A: you have by expulsion. To discipline members of
A: More than 50% of the membership. For as long as congress, each house has a committee. You have a
you get the number, regardless of your political party committee on discipline.
affiliation, then you can be elected as an officer in the
congress, either be in the Senate or House of Q: what will be a ground for removal? Or for disciplining?
Representatives
A: in impeachment there are 6 grounds enumerated
Q: What is quorum? under the constitution. But in congress there is only
A: refers to majority only of the membership of house. It disorderly behavior. Defined by the house concerned
maybe a simple mathematical computation but take not through their rules of proceedings. they define what is
of the case of Avelino v. De la Cruz, G.R. No. 6322, disorderly behavior and that is discretionary on the
February 21, 1912. Let us say, there are 24 members, 5 house.
of whom are absent.
Q: What would be the basis of computation for majority? TN: the penalty to be imposed from reprimand to
A: On the total membership of 24. expulsion, should suspension be the penalty, the
Q: Why? constitution is clear that it should not be more than 60
A: Because they can always be compelled to attend the days, if you suspend a member for more than 60 days
session. If they are alive and congress. for as long as then it will be expulsion.
there are 13 who attended the session, they can
proceed legally with their business. And to pass a Preventive suspension that may be imposed by the
legislative proposal, all there is need is the majority of courts will not violate the separation of powers because
the quorum preventive suspension of members of congress by the
courts
Principle of shifting majority, because as the number
of members attendance increase, then the increase also example: Revilla, Estrada and Enrile, they can be
in the requisite majority of the passing of the law. suspended indefinitely because they are charged with
corruption. The suspension is 90 days (3 months)
mandatory. Ministerial functions are exercised by the
Q: What if for example, one is really sick and he cannot court for preventive suspension of not more than 90
attend the session (in the ICU) will he be included in days.
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.
Q: can they complain about the violation of separation of
But if he is abroad, in the case of Avelino of Cruz. Even powers as of this provision that only congress can
if a warrant of arrest is issued, it cannot be enforced suspend them
aboard since it is beyond the territorial jurisdiction of the
congress. Thus, it is useless to include him in the A: no because preventive suspension is not a penalty
computation of the quorum. Thus if one of the members yet. It is a mere precautionary measure and therefore it
of the senate is abroad, then the basis of computation of does not violate the separation of powers provided in
majority is only 23, not 24. Divided by 2 plus 1. article 6 section 16 paragraph 3
Santiago vs Guingona. (3) Each House may determine the rules of its
proceedings, punish its Members for disorderly
On the rules of proceeding, every congress, they have to behavior, and, with the concurrence of two-thirds
promulgate their own proceedings. But they are not of all its Members, suspend or expel a Member. A
obliged to follow them if they do not want to. Arroyo v.
De Venecia, G.R. No. 127255, June 26, 1998) SC
penalty of suspension, when imposed, shall not
cannot compel them to follow the proceedings, under the exceed sixty days.
separation of powers. SC: they are mere procedures Q: How many votes is needed to expel a member? Or to
which may be waived or disregarded by the legislative convict a member?
party.
A: 2/3 votes. The same as you convict an impeachable
E. Discipline of members official you need 2/3 votes of the members of the senate.
JOURNAL and ENROLLED BILL 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: Publication of the proceedings in the journal
There are 2 records that you need to remember for Q: What then would be the remedy of congress?
purposes of determining on how are laws passed in A: They have to amend the bill. Withdraw it rather than
congress? just change it without going through the process. As far
A: The journal and the enrolled bill. These are evidences as the court is concerned, the enrolled bill is binding as
of the enactment of a law. to its tenor.
The journal is being kept by the secretary of each house.
Q: The matters contained in the journal there are 4. Q: Whether there was a valid deliberation of the bill?
1. the yaes and the nays of every law that is A: What will prevail is the journal. On how many votes
being carried out by the majority votes was passed then it will be the journal.
2. the veto of the president
3. the votes of yes and nays overriding the TN: US vs Pons
veto of the president
4. the result of any deliberation as long as it is Neither House during the sessions of the
requested by at least 1/5 of the members Congress shall, without the consent of the other,
adjourn for more than three days, nor to any other
Those contained in the journal are conclusive as to the place than that in which the two Houses shall be
probative value and they are binding upon the courts sitting.
Q: What about an enrolled bill? F. Electoral tribunals and the Commission on

A: when it is enrolled or engrossed
Appointments
Q: When is it enrolled?
A: After a certification is issued by the speaker of the ELECTORAL TRIBUNALS
house or the senate president that here is the version Section 17 of Article 6
that we agreed on and as to any insertions to the bill
while it is submitted to the president for signature SECTION 17. The Senate and the House
of Representatives shall each have an Electoral
Q: What is its probative value?
A: It is binding as so far as to its execution, the tenor as Tribunal which shall be the sole judge of all
to its contents, it is binding upon the courts. contests relating to the election, returns, and
So if you want evidence on that is the tenor of the bill qualifications of their respective Members. Each
then you refer to the enrolled bill because that is Electoral Tribunal shall be composed of nine
conclusive as far as the court is concerned. Members, three of whom shall be Justices of the
The due execution of the bill you go back to the enrolled
bill
Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members
Q: what if there will be a conflict between the enrolled bill of the Senate or the House of Representatives, as
and the journal the case may be, who shall be chosen on the basis
A: the journal is practically a transcript of the of proportional representation from the political
proceedings of deliberations of a particular bill, it is
parties and the parties or organizations
verbatim. Records of what happened.
registered under the party-list system
Q: apparently a conflict was created, your journal is represented therein. The senior Justice in the
different as a result of the deliberation but in the enrolled Electoral Tribunal shall be its Chairman.
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 TN: these are favorite in the bar
tenor, then you go by the enrolled bill.
[Judge forgot the title of the case, but its more likely to Electoral tribunals. There are 2 electoral tribunals. One
be Tolentino v. Secretary of Finance, G.R. No. 115455 in the senate and one is in the house of congress.
on VAT]
Q: what is the Composition of the electoral tribunals?
They were confused on what is the subject of the A: there are 9 members each. 3 senior justices of the
product and the raw materials because in the journal supreme court and 6 coming from the political parties on
apparently it is subject to tax because the raw material proportionate representation.
are the byproducts but it came out in the enrolled bill that
what was subject is already the by product. It is clear in TN: Q: once you are elected in the electoral tribunal, is
the intention of congress is for the byproduct but it is not there any security of tenure?
that way in the enrolled bill.
A: even if you change your political party affiliation it will Q: If it was not resolved by the COMELEC and election
not be a ground to remove you from the electoral tribunal was conducted?
that is the case Bondoc v. Pineda, G.R. No. 97710, A: over run by the election. The moment that candidate
September 26, 1991 has sworn into the house as member. COMELEC will
electoral tribunals practically exercise the electoral lose jurisdiction.
function.
Q: What is the function of the Electoral tribunals. Q: Who is going to question of one already a member?
A: It is the sole judge (only judge) of election contest. A: Supreme Court said that the congress or the house
Involving election returns and qualification of members concerned is never precluded to conduct exclusionary
of congress ( senate or house of representatives) as the proceedings in order to preserve the integrity of the
case may be. house that only qualified members shall continue to
serve the house. Shall remain as members as the house
Q: Define our terms
A: sole judge meaning- there a=can be no other judge or Q: Jurisdiction of the electoral tribunals because
courts that will have jurisdiction over members of sometimes it will overlap with the jurisdiction of
congress. You cannot go to the supreme court to COMELEC. When does the electoral tribunal assume
question the election return or qualification of the jurisdiction over an election contest.
members. That is the exclusive jurisdiction of the A: only when it involves a member.
electoral tribunals. It is the sole judge and therefore its
decision is not appealable unless there is abuse of Q: If he is not yet a member because he is not yet
discretion amounting to lack of jurisdiction. proclaimed as the winner?
A: Then it would have to be resolved first by the
Case of Abubakar v. House of Representatives COMELEC on the issue on qualification or returns or
Electoral Tribunal, G.R. No. 173310, 173609, March 07, election prohibition and returns.
2007
The SC jurisdiction to refute decisions of HRET operates Q: define returns? What is involved in the election in the
only upon a showing of grave abuse of discretion on the jurisdiction of the electoral tribunal? What do you mean
part of the tribunal tantamount to lack or excess of by election?
jurisdiction. Otherwise its decision is final and executory. A: when it was attended with fraud or when there was
vote buying, violence or intimidation of election. It is in
Q: what are the cases that are within the jurisdiction of the electoral tribunals. As to qualifications those that are
the electoral tribunals? provided for in the constitution. Or even to his loyalty to
A: election contest. the republic. The returns should be something to do with
the election figures and results.
Q: what is an election contest?
A: it may be a winner or a loser. The loser has the 1. Nature
intention to remove the winner so that he will become 2. Powers
the member of congress.
G. Powers of Congress
Q: Therefore if isa lang ang candidate in one legislative 1. Legislative
district. Do they have jurisdiction if a voter of that district The Law-Making Process
will question the qualification of the sole candidate of Q: What are the limitations?
that district? Where do you question? A: There are substantial and procedural limitations.
A: with the electoral tribunal, comelec or the Supreme
Court Substantial limitations:
The Sampayan v. Daza, G.R. No. 103903, September For as long as they are not contrary to the
11, 1992. Only candidate of northern Samar in his Constitution, there cannot be any problem as to
district. There was a question on his qualification whatever law that may be passed by Congress.
because according to the complainant he is not a It must not be irrepealable , all laws passed by
resident of the Philippines as he is a green card holder. Congress are subject to amendments or even
repeal.
Q: Does the electoral tribunal have jurisdiction over him? Except: for a law that may violate the
A: No, because the constitution is clear that only when non-impairment clause. (ex. the grant of
there is an election contest where there is a winner and tax emption for a valuable consideration.
a losing candidate where the losing candidate will It cannot be repealed as it will violate
replace him in congress. the non-impairment clause).
Supreme Court has no jurisdiction as well because that
should have been asked before the election as to a Matters relating to the prohibition against the
qualification contest to COMELEC. increase of the appellate jurisdiction of the
Supreme Court without its advice and consent.
Taking all the foregoing circumstances in their true A: This time, not only the title will be read, but
legal roles and effects, therefore, Section 27 the provisions with the recommended proposals
of Republic Act No. 6770 cannot validly authorize for changes by the Committee will be discussed,
an appeal to this Court from decisions of the Office so that debates and discussion will follow on the
of the Ombudsman in administrative disciplinary bill.The final draft will be prepared, it will be
cases. It consequently violates the proscription in printed and distributed among the members of
Section 30, Article VI of the Constitution against a the House, and thereafter the vote will be taken,
law which increases the appellate jurisdiction of this time only the title will be read.
this Court. No countervailing argument has been
cogently presented to justify such disregard of the (TN) A bill must embraced only one
constitutional prohibition which was intended to subject matter to prevent log rolling,
give this Court a measure of control over cases Hodge podge.
placed under its appellate jurisdiction. Otherwise,
the indiscriminate enactment of legislation They will submit a draft of their proposal to your bill as to
enlarging its appellate jurisdiction would the changes and they will be submitted to plenary
unnecessarily burden the Court.||| (Fabian v. session, meaning as a house
Desierto, G.R. No. 129742, September 16, 1998)
Q: Now what will happen after it was submitted to the
There should not be any law that would allow plenary session?
recognition of nobility. Walay queen or king.
A: This time not only the title will be read but the
Procedural/ Process provisions with the recommended proposal for changes
by the committee will be discussed, so that debate and
If there is any proposal, it may be initiated by the discussion will follow
House of the Representatives or House of the
Senate. The session may be held Q: Now what will happen?
simultaneously on the same subject matter or
sequential. From one house to the other house, A: The final draft will be prepared, printed and
following the same process. distributed among the members of the house and
thereafter a vote will be taken, this time only the title will
Q: What is the process? be read, then that will go to the house of the senate to
A: First, there is the calendaring of the bills at go through the same process.
the beginning of their term. E-calendar na nila Q: What if they cannot agree on their version??
with the Secretary of the House. The secretary
will set a schedule in the calendar when is it to A: Then there is bicameral conference committee to iron
be called. Iya rang title ang tawagon. It will be out the differences or conflicts of version between the
referred to the concerned committee. If your bill two houses they shall be compose equal number coming
pertains to local governments, it will be given to from both houses.
the committee on local governments.
Q: is this a third house?
Q: What would the committee on local
governments do upon receipt of your bill? A: NO, their purpose is only to iron out,
A: it is discretionary, this is what makes a Q: Do they prevail?
chairman of the committee very powerful, he
may act on it or gave due course to your A: Virtually they prevail but TN: there has to be approval
proposed bill or simply ignore it. or concurrence by MAJORTIY VOTES OF BOTH
If it is acted upon, research will be done; HOUSES, in other words they may also amend the
if not, public hearings will be conducted. version of both houses and come up with their own
The Committee will propose changes to version, mao ni gitwag nila ug AMENDMENT BY
your bill. The Committee will submit a SUBSTITUION but such will only be effective if approve
draft of their proposals to your bill as to by majority votes of both houses, it will be submitted to
the changes, and It will be submitted to plenary session of both houses and thereafter
the plenary session; meaning, as a
house. Q: what will happen?
A: if they can agree now then there is the signing by

Q: What would happen if it is submitted to the
plenary session? 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
Q: what will the president do?? independent from that portion vetoed by the president
also the president may veto in effect, reject
A: He has a period of 30 days to act if he does not act INAPPROPRIATE provisions being inserted in the bill,
on the bill that may also be veto by the president by way of
Q: what will happen? exception to the exception.
A: The bill becomes a law regardless of his objection, if There is also that IMPOUNDMENT POWER of the
he has to make an objection he has to do that within 30 president is so far as appropriation are concerns even if
days.. there is an appropriation for a particular disbursement of
the government the president may refuse spend the
Q: What will he do?? appropriated amount.
A: He can VETO THE ENTIRE BILL AS A GENERAL BAR Q: WHEN DOES A BILL BECOME A LAW?
RULE not just a portion of it but the entire bill the only..
A: When the president does not act within the
EXCEPTION to that if it involves what?? period of 30 days from receipt
1. Appropriation bill When the president signs the bill
2. Revenue bill or
When the bill written by the president is
3. Tariff bill
overridden by the 2/3 votes of both houses
then he can make ITEM VETO, this is denied by
the president in the PDAF CASE, there is no vetoing Q: WHEN DOES A BILL BECOME A LAW WITHOUT
of the identification of the projects and as to the THE SIGNATURE OF THE PRESIDENT?
amounts that may be spend for that project the A: Executive action
president would not have that opportunity with
regards to the PDAF thats why one of the reason it Overriding the veto power of the president
was declared unconstitutional because it will violate
Recall of the emergency power of the president
the veto power of the president.
The calling of a special election for president
Another point you should TN as to the presidents
need have the signature of the acting president
signing it so if he disagrees with the bill,
BAR Q: is the three reading of the bill indispensable or
Q: what will he do?
dispensable??
A: He returns the bill to the house of origin with his veto
A: Indispensable
message,
Q: is the three reading on separate days indispensable
Q: is there a chance for the bill to be save?
or dispensable?
A: YES. 2 INSTANCES
A: Dispensable, for as long as there is certification by the
1. If they do not agree with the president they president as to the urgency of the bill, that if it is not
may vote again upon the bill without any acted upon immediately, there will be danger to public
changes notwithstanding the safety or national security, TN it can be done in one day
recommendation of the president thats what not on separate days, nonetheless three readings
we call REPASSING of the bill, overriding gihapon, its indispensable thats on of the procedural
limitations.
the power of the president however you
need a vote 2/3 of both houses not just from TAXATION
the house of origin but also to the other
house, if they fail to get the 2/3 votes of the Q: in case of doubt whether you are taxable or not? How
other house the bill is as good as dead or do you resolve the doubt
2. They may consider the recommendation of A: against the taxpayer
the president to amend the bill and return
the bill to the president so that he will sign it. Q: characteristics of our taxation?
A: uniform; equitable; and progressive.. Equitable

By the way on ITEM VETO it involves like appropriation,
meaning according to the capacity to pay taxis, this was
revenue or tariff bill one condition that must be complied
ask in the BAR exam
that the remaining provisions of the veto bill can stand
BAR Q: what is the difference between uniform taxation compelled unless the president invokes his executive
and equitable taxation? privilege.
A: equitable because that would depend on the capacity (TN) |||Senate of the Phils. v. Ermita, G.R. No. 169777
to pay taxis, uniform that whatever tax that would be April 20, 2006
impose should be applied to all person situated under It follows, therefore, that when an official is being
the same circumstances. Progressive because as your summoned by Congress on a matter which, in his own
tax base increases your tax rate increases base on judgment, might be covered by executive privilege, he
uniformity and equitable taxation. must be afforded reasonable time to inform the
President or the Executive Secretary of the possible
BAR Q: who grants tax exemption? need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary
A: it is only congress by majority votes of all members of with fair opportunity to consider whether the matter
congress indeed calls for a claim of executive privilege. If, after the
lapse of that reasonable time, neither the President nor
Q: how about tax treaties? the Executive Secretary invokes the privilege, Congress
is no longer bound to respect the failure of the official to
A: is should be with the concurrence of the 2/3 votes of
appear before Congress and may then opt to avail of the
the senate
necessary legal means to compel his appearance.
Another point on the grant of tax exemption it could be The Court notes that one of the expressed purposes for
by a statue or by a constitutional provision requiring officials to secure the consent of the President
under Section 3 of E.O. 464 is to ensure "respect for the
TN: on properties that are actually, directly, and rights of public officials appearing in inquiries in aid of
exclusively use for religious purpose, exempted from legislation." That such rights must indeed be respected
property tax only, public cemeteries, monasteries etc. by Congress is an echo from Article VI Section 21 of the
charitable institution, in relation to this guys if funds Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be
should be appropriated to the church, its priest or any
respected.
dignitaries of the church or religious sec.
In light of the above discussion of Section 3, it is clear
Q: is that allowed? that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be
A: NO, that would be a violation of separation of church invalidated. That such authorization is partly motivated
and state EXECPTION if payment are made to priest by the need to ensure respect for such officials does not
working for AFP; penal institution; and orphanage and change the infirm nature of the authorization itself.
leprosarium
On congress with regards to delegation Tariff power to Neri v. Senate Committee on Accountability of
the president, go over with section 28. Public Officers and Investigations, G.R. No. 180643,
September 04, 2008
TN: on sec. 32 on the mandate on passing of a law to Incidentally, the right primarily involved here is the right
allow the people to legislate through the process of of respondent Committees to obtain information
initiative and referendum RA 6735. allegedly in aid of legislation, not the people's right to
public information. This is the reason why we stressed in
a) Legislative inquiries and the oversight functions the assailed Decision the distinction between these two
Legislative Inquiry rights. As laid down in Senate v. Ermita, "the demand of
The Senate or the House of Representatives or any of a citizen for the production of documents pursuant to his
its respective committees may conduct inquiries in aid of right to information does not have the same obligatory
legislation in accordance with its duly published rules of force as a subpoena duces tecumissued by Congress"
procedure. The rights of persons appearing in, or and "neither does the right to information grant a citizen
affected by, such inquiries shall be respected. the power to exact testimony from government officials".
TN: What is important with regards to legislative inquiry, As pointed out, these rights belong to Congress, not to
this power is a discretionary power of Congress. the individual citizen. It is worth mentioning at this
juncture that the parties here are respondent
Q: Who may be required to appear before a legislative Committees and petitioner Neri and that there was no
inquiry? prior request for information on the part of any individual
A: Any person. citizen. This Court will not be swayed by attempts to blur
the distinctions between the Legislature's right to
Q: Does that include the president and his cabinet? information in a legitimate legislative inquiry and the
A: The president NO because of the executive privilege. public's right to information.
As regards the cabinet members, YES they may be
For clarity, it must be emphasized that the assailed (TN) The rights of persons appearing in, or affected by,
Decision did not enjoin respondent Committees such inquiries shall be respected. This includes his right
from inquiring into the NBN Project. All that is against self-incrimination.
expected from them is to respect matters that are
covered by executive privilege. (TN) The subject matters that may not be looked into by
Congress thru a legislative inquiry notwithstanding the
Q: What is the subject matter covered in a legislative prerogative of exercising the power. It must always be in
inquiry? aid of legislation not in aid of prosecution.
A: Any matter. Not necessarily in relation to a pending Case in point: Bengson v The Senate Blue Ribbon
legislation for as long as it relates to the scope of its Committee. This one has to be read in the light of the
legislative inquiry. One can be asked whatever topic and decision of the SC in the Standard Chartered Bank v
he may be asked to appear before the House or any of The Senate Committee on Banks.
its committee to shed light on those subject matters.
Citing Bengzon, Jr. v. Senate Blue
TN: They must promulgate their own rules and Ribbon Committee, the petitioners claim that since the
regulations and the most important part, these rules issue of whether or not SCB-Philippines illegally sold
must be PUBLISHED. There will be a violation of DUE unregistered foreign securities is already preempted by
PROCESS OF LAW should there be failure to publish the courts that took cognizance of the foregoing cases,
such rules and regulations. (Senate of the Phils. v. the respondent, by this investigation, would encroach
Ermita, G.R. No. 169777 April 20, 2006) upon the judicial powers vested solely in these courts.
The argument is misplaced. Bengzon does not
The same principle was then invoked by Ombudsman apply squarely to petitioners' case.
Gutierrez as regards to impeachment. The one who It is true that in Bengzon, the Court declared that the
initiates the impeachment is the House of issue to be investigated was one over which jurisdiction
Representatives and it is the Senate which hears the had already been acquired by the Sandiganbayan, and
proceedings. OMB Gutierrez was then saying that the to allow the [Senate Blue Ribbon] Committee to
right to due process was violated because the investigate the matter would create the possibility of
impeachment rules and regulations were not published. conflicting judgments; and that the inquiry into the same
SC was saying that unlike proceedings in a legislative justiciable controversy would be an encroachment on the
inquiry, the Constitution requires that it should be exclusive domain of judicial jurisdiction that had set in
published in compliance with due process but there is no much earlier.
such publication insofar as publishing the rules and To the extent that, in the case at bench, there are a
regulations with respect to the conduct of the number of cases already pending in various courts and
impeachment proceedings. Just to emphasize that administrative bodies involving the petitioners, relative to
indeed the requirement of publication of the R&R with the alleged sale of unregistered foreign securities, there
respect to the conduct of legislative inquiry is is a resemblance between this case and Bengzon.
MANDATORY. However, the similarity ends there.
Central to the Court's ruling in Bengzon that
While "promulgation" would seem synonymous
the Senate Blue Ribbon Committee was without any
to "publication," there is a statutory difference in their
constitutional mooring to conduct the legislative
usage.
investigation was the Court's determination that the
The Constitution notably uses the word "promulgate" 12
times. A number of those instances involves the intended inquiry was not in aid of legislation. The
promulgation of various rules, reports and issuances Court found that the speech of Senator Enrile, which
sought such investigation contained no suggestion of
emanating from xxx It is not for this Court to tell a co-
any contemplated legislation; it merely called upon
equal branch of government how to promulgate when
the Senate to look into possible violations of Section
the Constitution itself has not prescribed a specific
5, Republic Act No. 3019. (Standard Chartered Bank v.
method of promulgation.The Court is in no position to
Senate Committee on Banks, Financial Institutions and
dictate a mode of promulgation beyond the dictates
of the Constitution.|||xxx Had the Constitution intended Currencies, G.R. No. 167173, December 27, 2007)
to have the Impeachment Rules published, it could have
stated so as categorically as it did in the case of the Q:What was invoked here (in Bengzon)?
rules of procedure in legislative inquiries, per Neri. Other A: In Bengzon, the person who was summoned before
than "promulgate," there is no other single formal term in the Senate Blue Ribbon Committee already had a
the English language to appropriately refer to an pending case before the Sandiganbayan.
issuance without need of it being published. (Gutierrez
v. House of Representatives Committee on Justice, G.R. The separation of powers between Congress and the
No. 193459, February 15, 2011) 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
legislation. Congress cannot determine whether a tools to enable the legislative body to gather information
person has a violated a law, or whether he is guilty or and, thus, legislate wisely and effectively; and to
not. determine whether there is a need to improve existing
laws or enact new or remedial legislation, albeit the
Q: What happened in Standard Charter Bank vs. The inquiry need not result in any potential legislation. On-
Senate Committee on Banks? going judicial proceedings do not preclude congressional
A: This was a case about the sale of shares of stocks of hearings in aid of legislation.
Standard Charter without the approval of Bangko ||| (Romero II v. Estrada, G.R. No. 174105, April 02,
Sentral. Those investigated said theres already a 2009)
pending investigation by the BSP. To have them appear Q: Why are these cases relevant?
before the Senate committee would violate their right
against self-incrimination and the separation of powers. A: Now that the cases have been filed against the 3
senators regarding the PDAF, I suppose that if they
TN SC said the mere filing of a criminal or administrative continue legislative inquiry, they must be excluded. TN
complaint before a court or a quasi-judicial body should that if it goes into disclosing information that might affect
not automatically bar the conduct of legislative inquiry, the prosecution of the cases against the accused
otherwise it would be easy to subvert any intended senators, you must comply with the subjudice rule.
inquiry by Congress through the institution of any
particular criminal or administrative action. This is the Q: What is the exercise of contempt power?
most recent one with respect to the extent of legislative
inquiry of congress. A: Incidental to the legislative inquiry power, but is not
expressly provided by the Constitution. It is implied that
Q: What is subjudice? should Congress choose to exercise the legislative
inquiry, Congress can cite one in contempt should a
A: TN, this is a limitation on the conduct of legislative person refuse to cooperate by not appearing if
inquiry. SC said this subjudice rule restricts comments summoned by Congress or any of its committee.
and disclosures pertaining to judicial proceedings to
avoid pre-judging the issue, influencing the court, or Q: How long will you be detained if the power of
obstructing the administration of justice. This is from contempt is exercised through detention as penalty?
Romero II vs. Estrada.
A: Contempt by Senate forever. Because Senate is a
The sub judice rule restricts comments and disclosures continuing body. The seats are never vacant, because
pertaining to judicial proceedings to avoid prejudging the you only elect 12 Senators every election.
issue, influencing the court, or obstructing the
administration of justice. A violation of the sub judice rule Contempt by HR or any of its committees 3 years. TN.
may render one liable for indirect contempt under Sec. Q: What is question hour?
3(d), Rule 71 of the Rules of Court.||| XXX
At any rate, even assuming hypothetically that Chavez is A: This is upon Congress initiative, in compliance with
still pending final adjudication by the Court, still, such its oversight function.
circumstance would not bar the continuance of the
committee investigation. What we said in Sabio v. Q:Two modes of question hour.
Gordon suggests as much:
First, a cabinet member with the consent of the
The same directors and officers
President may ask that he appear before any of the
contend that the Senate is barred from
committees or any of the houses. Once Congress
inquiring into the same issues being
refuses, he cannot impose because of the principle of
litigated before the Court of Appeals
separation of powers.
and theSandiganbayan. Suffice it to
state that the Senate Rules of Second, it may be the House concerned that would
Procedure Governing Inquiries in Aid request the appearance of a certain department head, in
of Legislation provide that the filing or compliance with its oversight function.
pendency of any prosecution or
administrative action should not stop The oversight function has always been mentioned with
or abate any inquiry to carry out a regards to DAP and PDAF as justification.
legislative purpose.
A legislative investigation in aid of legislation and court Q: What is an oversight function?
proceedings has different purposes. On one hand, A: TN, this is a function that embraces all activities
courts conduct hearings or like adjudicative procedures undertaken by Congress to enhance its understanding of
to settle, through the application of a law, actual an influence of the legislation it has enacted. This
controversies arising between adverse litigants and function is complied with under Section 22, Article 6.
involving demandable rights. On the other hand,
inquiries in aid of legislation are, inter alia, undertaken as Q: What does oversight encompass?
A: Clearly, oversight concerns post-enactment measures by Supreme Court or Congress in the exercise of its
taken by Congress to: legislative inquiry.
1. monitor bureaucratic compliance with program b) Bicameral conference committee
objectives c) Limitations on legislative power
2. determine whether agencies are properly TN of the Non-delegation of legislative powers, and the
administered permissible delegation
3. eliminate executive waste and dishonesty Delegation of Power
4. prevent executive usurpation of legislative 1. To the People, to a certain extent under RA 6735
authority (Initiative and Referrendum)
5. assess executive conformity with the 2. To the President, under Secs. 23 and 28 of Article VI
congressional perception of public interest 3. To the Administrative bodies
4. LGUs under RA 7160
Q: When can it be held?
Q: Can the President exercise legislative power on its
A: Only in executive sessions, with the exclusion of own under Secs. 23 and 28 of Article VI without a valid
media when the matter involves national security or if delegation?
requested by the President that it should be done in A: NO. Since, what the Philippines have is a Republican
closed doors. system which maintains the principle of Separation of
Powers. However, under Martial Law (even if there is a
Q: TN, what are the acts done by Congress in the legislative body like the Interim Batasang Pambansa), or
exercise of its oversight power? if the government is revolutionary and there is no
legislative body at the moment, the president may
A: Scrutiny, Investigation, Supervision exercise legislative powers on its own.
Q: What is operational proximity test?
Anyway, a good example of contests involving issues
A: It involves communication with the President and his regarding on election whether it was attended with fraud,
subordinate if it involves consultative communication. vote buying, violence or intimidation in elections, then
Because of the proximity of that officer with the accusations like these are within the jurisdiction of the
President, there may be communication that should not electoral tribunal ordinarily if the candidate has already
be disclosed to the public, as it becomes part of the been sworn into office as member of congress. When we
executive privilege. say qualifications, obviously it pertains to whether he has
the qualifications prescribed by the constitution like
Q: What matters can Congress not look into? whether he is a natural born citizen or even including his
A: Matters under executive privilege; diplomatic loyalty to the Republic, that is included in the
negotiations of the President entered into with foreign qualifications.
countries
Q: When you say returns, it has something to do with the
It follows from the above discussion that Congress, election returns. Have you seen an election return?
while possessing vast legislative powers, may not
interfere in the field of treaty negotiations. While Article A: It is a tabulation of the number of votes obtained in
VII, Section 21 provides for Senate concurrence, such the election. And then you have the corresponding
pertains only to the validity of the treaty under words and figures of the votes that you have obtained.
consideration, not to the conduct of negotiations That is with respect to the election returns. Sometimes,
attendant to its conclusion. Moreover, it is not even pag-ihap nimo sa kahon, it does not jibe with the figures
Congress as a whole that has been given the authority and the words as stated in the election returns. Example,
to concur as a means of checking the treaty-making sa kahon-kahon, it shows therein one million, but when
power of the President, but only the Senate. they counted it again, it was only 500,000. Now in things
Thus, as in the case of petitioners suing in their capacity like this, you go to the Electoral Tribunal if the member
as private citizens, petitioners-members of the House of has already become a member of the house. These are
Representatives fail to present a "sufficient showing of the controversies involving election contest.
need" that the information sought is critical to the
performance of the functions of Congress, functions that Q: What could be the process?
do not include treaty-negotiation A: It would be an ordinary election contest or quo-
||| (Akbayan Citizens Action Party v. Aquino, G.R. No. warranto. Kung election contest, ordinarily qualification
170516, July 16, 2008) etc. Kung Quo Warranto, those involves qualifications,
that he is not qualified because he does not have the
Q: Who is going to determine whether it is EP or not? qualifications prescribed by the constitution or he has
A:SC is the one that defines what may be covered under been convicted of disloyalty to the republic of the
EP or not. Now they want that Congress may define by Philippines. Quo warranto na siya ang imong petition.
law what may constitute matters that may not looked into Either petition the electoral tribunal has jurisdiction.
respect to Codilla is still valid because the comelec was

Q: Going back to what I was asking earlier: When does never yet ousted of jurisdiction over the controversy.
the jurisdiction of the Electoral tribunal start?
A: Upon the valid proclamation of the member and he Limkaichong vs COMELEC G.R. Nos. 178831-32
swears in office as member of congress. COMELEC July 30, 2009
shall be ousted from jurisdiction. Thereafter, the electoral Limkaichong of Negros Oriental ran for member of
tribunal shall have sole jurisdiction over the election Congress from here district. A petition for disqualification
contest. TN however of the cases of Codilla and the was filed against her. Kay kuno, ang papa ni
Limkaichong case. Limkaichong was a naturalized Filipino citizen, Chinese
man. But they alleged that ang naturalization kuno sa
Codilla vs De Venecia G.R. No. 150605 December 10, iyang papa was invalid. So kung invalid ang
2002 naturalization sa iyang papa, that means that she never
Diba Ormoc man ni siya nga Congressman before Lucy acquired the citizenship of the father as Filipino because
Torres Gomez. What happened in this case is that he in the first place, the proceedings were invalid. That was
was disqualified even before the election because he pending in the COMELEC. In the meantime, nag election
was engaged in electioneering. He was accused of kana and limkaichong won. She was proclaimed
bitawng you are not supposed to spend public funds notwithstanding the disqualification case. And she
during the election period because you might be using became the member of congress.
the funds just to promote your own interest. What
happened was, I think, naappropriate na siguro ang Q: What is the difference between the Codilla case and
funds for the, kana bitawng, there are too many libaongs her case.
in their place. Unya, it was during the election period nga
gi-pang fill-up-pan. He was accused of electioneering A: There is a lot of difference. In the Limkaichong case,
and the Comelec disqualified him. Notwithstanding his the COMELEC passed a resolution that even if there is a
disqualification, he still won the election. But it was pending disqualification case, if you won in the election,
disregarded by the COMELEC because he was already you should be proclaimed because time is of the
disqualified. Ang kontra was proclaimed as the duly essence. That resolution was not issued yet in the case
elected member of congress. Codilla however was able of Codilla. But in that resolution, it made some
to seasonably file his motion for reconsideration with the reservations that this is without prejudice to the
disqualification. continuation of the proceedings. This time, because that
candidate is now a member, the Electoral Tribunal has
In other words, even before the election, or even before jurisdiction. Comelec has no more jurisdiction upon
the proclamation of Locsin, he already filed the MR. Ang publicly proclaiming the candidate as the duly elected
problema lang ka delayed ang pag resolve sa MR. The member of Congress. That is what happened to the case
MR was not resolved after the election and after the of Limkaichong.
proclamation of Locsin. It was only resolved finally by the
COMELEC at least two weeks before the next election. Now, because of the proclamation of Limkaichong, she
Imagine ka, 2 weeks nalang and the COMELEC said became a member of congress. The disqualification
reversed ang decision! Meaning Codilla was not involved case continued at the electoral tribunal.
in electioneering therefore he is qualified. His vote
should be counted and in the counting, he won in the Q: Does electoral tribunal has jurisdiction over the
election. Karon, ni adto siya ni De Venecia. He asked De disqualification case against Limkaichong? This is on the
Venecia that he be sworn in kay hapit na mo expire ang citizenship of Limkaichong. Kung ordinaryo ra unta to
term. De Venecia refused. De Venecia said that you file siya nga question of citizenship, most definitely, the
first a petition for quo warranto to remove Locsin electoral tribunal has sole jurisdiction over the
because Locsin now is a member. The case went all the qualification of that member. But TN, what was
way to the SC questioning De Venecia for his refusal to questioned here is the naturalization of the father of
swear him in. Was De Venecia correct in this case. Limkaichong which the electoral tribunal has no
jurisdiction. Who has jurisdiction over naturalization?
SC said De Venecia was incorrect. Why? Because when
the COMELEC made a declaration, that indeed it was A: You have a Naturalization Tribunal to revoke the
Codilla who won, the Electoral Tribunal. naturalization of a particular alien who is now a Filipino
citizen by virtue of the alleged naturalization taken as
TN here, the tribunal has no jurisdiction over the case of invalid. In other words, what will the electoral tribunal will
Codilla because the COMELEC was not ousted yet of its do is that it will refer it to the naturalization tribunal. You
jurisdiction over the controversy. This is because Codilla will wait for the result and by then, tapos na. Duha na
was able to file his MR seasonably even before the siguro ka term ang natapos before a resolution can be
proclamation of Locsin. Sa ato pa, ang proclamation diay secured from the naturalization tribunal to say WON the
ni Locsin was premature and therefore invalid. If there is naturalization of the father of Limakaichong is valid or
any question on the qualification, it is the COMELEC. not. So what happened in the case of Limkaichong, it
And the resolution then here of the COMELEC with was dismissed because the electoral tribunal has no
jurisdiction on the naturalization proceedings. If it was Let us have the consolidated cases of Abayon vs.
just a simple question of qualification of Limkaichong, HRET, Palparan vs. HRET G.R. No. 189466 February
definitely, Electoral Tribunal has jurisdiction over the 11, 2010. SC said party-list nominees are considered as
case. elected members, therefore, HRET has jurisdiction to
hear and pass upon their qualifications. But if it is a
So as it was declared in the case of Limkaichong vs. question of leadership of the accredited partylist
COMELEC, Biraogo vs. Nograles, Paras vs. Nograles organization that based the nomination, TN that in the
and Brillante vs. COMELEC, once a winning case of Lokin, Jr. v. Commission on Elections, GR No.
candidate has been proclaimed, taken his oath, 193808, June 26, 2012, Villanueva claimed his own
and assumed office as a Member of the House of nomination while Perla the Secretary General also
Representatives, the COMELEC's jurisdiction over claimed their own nomination. There was confusion.
election contests relating to his election, returns, and Who has jurisdiction to resolve the issue as to who was
qualifications ends, and the HRET's own jurisdiction validly nominated.
begins. the proclamation of a winning candidate divests
the COMELEC of its jurisdiction over matters pending A: As this would involve a question of leadership of the
before it at the time of the proclamation. organization, jurisdiction is with the COMELEC. Comelec
must first resolve who is the rightful authority to make
In the case of Villando vs. HRET and Limkaichong, SC the nomination. So the SC said in this case RA 7941
said Clearly, under law and jurisprudence, it is the State, vested the comelec with jurisdiction over the nomination
through its representatives designated by statute, that of party-list representatives and prescribing qualifications
may question the illegally or invalidly procured certificate of each nominee and that no grave abuse of discretion
of naturalization in the appropriate denaturalization can be attributed to the Comelecs First Division and
proceedings. HRET no matter how complete and Comelec en banc which had declared President
exclusive does not carry with it authority to delve into the Villanueva as the proper party to submit CIBACs
legality of the judgment of naturalization in the pursuit of certificate of nomination instead of Perla. Again I repeat,
disqualifying Limkaichong. To rule otherwise would if it falls into the validity of the nomination, ultimately to
operate as a collateral attack of the citizenship of the the leadership of the organization, COMELEC has
Father of Limkaichong which is not permissible. jurisdiction. But if it falls into the qualification of the
nominee, HRET has jurisdiction.
Again I repeat, two modes of Petition may be filed.
A Petition for Electoral Protest or Petition for Quo Q: Can you represent the partylist in the HRET?
Warranto. A: YES, if they comply with the requirement of
proportionate representation of the political party as
You also have those cases like Pimentel member of congress. If they can, then definitely, they
vs. Zubiri (SET Case No. 001-07), where you have to may have seat in the HRET
look into the election returns in Maguindanao. That
opening of the ballot boxes and the election returns is Q: What forum has jurisdiction over party-list
administrative kuno sa COMELEC and that the representatives?
COMELEC has the authority to order the Election A: In terms of qualifications, they shall be considered as
supervisor to bring them in the Comelec for them to see elected and therefore jurisdiction is still with the Electoral
if indeed there are something wrong in the election Tribunal but if it relates to leadership of the organization
returns. Pimentel went all the way to the SC asking the that the nomination of such leader is being questioned
court to compel the COMELEC to produce the ballots then it would not be with the Electoral Tribunal rather it
and the election returns. SC said we dont have will be with the COMELEC. (TN)
jurisdiction. Should you have such request, and then go
to the electoral tribunal who has jurisdiction because in Q: What forum has jurisdiction over party-list
this case, Zubiri was already proclaimed as member of representatives?
the Senate. Should there be any questions with the A: In terms of qualifications, they shall be considered as
election returns, it must be with the Senate, not any elected and therefore jurisdiction is still with the Electoral
other tribunal either the comelec or the SC. Tribunal but if it relates to leadership of the organization
that the nomination of such leader is being questioned
Q: What about party-list, who has jurisdiction on the then it would not be with the Electoral Tribunal rather it
qualifications of the Nominees? If you are to question the will be with the COMELEC. (TN)
qualification of the nominee, who has jurisdiction, the
Comelec or the Electoral Tribunal? Two instances that (i) Limitations on revenue, appropriations and tariff
may happen. There may be a question on the validity of measures
the nomination of a nominee by a party-list organization. Power of the Purse
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?
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

there the project
A: List of expenses of the government by different
agencies, with the corresponding amounts. Special Appropriation you have to specify the project,
its purpose, and the availability of funds. Needs a
Q:When is it submitted by the President? certification from the National Treasury that there are
funds allocated specifically for this purpose.
A: Within 30 days from the opening of the regular
session of Congress. This section is Important. The bone of contention of
asking the DAP to be declared unconstitutional.
Q: To whom is it submitted?
Q:What happened in this DAP?
A: Congress
A: The President supposedly took some savings from
Q: What is an appropriation? the other departments of the executive branch and
augment the allocations of the Congressmen, for
A: An authority or law that authorizes the disbursement
projects that they can identify.
of public funds for a public purpose or for a specific
public purpose. Q: What is the general rule in appropriation?
Q: That budget of the President, can it be increased by A: The general rule is it cannot be transferred, it is
Congress? already appropriated. And therefore cannot be
transferred for one department to another. Or within the
A: No, but it may be decreased. Remember.
same department. Or for one item to another item.
Q: Effectivity?
Q: Who are the persons allowed by law to transfer
A: 1 fiscal year appropriations?
A: Executive Branch The President
The President of the Senate with respect to the House of A: It is not a statute, that was the term they described
the Senate, the Speaker of the House of the expenditure of the money. It is still questionable
Representatives with respect to the budget of the House because it should be within the department, and the
of Representatives, you have the Chief Justice of the money should be savings. How could there be savings
Supreme Court with respect to appropriations of the when they were never spended, because the President
Supreme Court and the Heads of the Constitutional impounded the funds. Although the President has that
Bodies with respect to their budget. Again, I repeat, discretion to impound; this one happened before during
there has to be a law, because this is an exception. the time of Cory Aquino. She did not like the CAFGU.
There has to be a statute, it is Congress that authorized; The money appropriated for the CAFGU was not
these officers that I have enumerated to transfer their appropriated by her. Since there was no money coming
savings from one department to another or from one from the government to support CAFGU, CAFGU died in
item to another. its natural death. [In the case of Araullo vs Aquino, it
happened to be provided in a Budget Circular issued by
The word is savings that must be transferred to augment Sec. Abad]
the appropriation of an item in their department that is
lacking or insufficient. Q: Can she be compelled to spend the money?
Q: Would you consider savings of a department of which A: No, because under the principle of separation of
the President deliberately impound the disbursement or powers it is for Congress to appropriate, it is for the
budget? What do you mean by impoundment? Where President to spend. If the President does not spend, he
the President refused to disburse the amounts cannot be compelled by Congress or by the Supreme
appropriated for that particular project in his department. Court. Congress is to appropriate or authorize the
disbursement. In this case, the President was
A: Because, at the end, I supposed, that was June, at authorizing himself through an Executive Order, and
the middle of the year; because the appropriations were they are asking where the Executive Order is? They
not expended, they were impounded by the President, cannot produce it. Because according to them, he
the money was still there. Instead he had that money (President) is authorized under Article VI Sec. 25 par 5.
transferred for the expenditures for acceleration But you have to define your terms, because the law is
programs to be identified by Members of Congress. very clear that there cannot be any transfer of
appropriation; this is to prevent juggling of funds.
Q: That is why they are saying, how can they be
savings? Q: What was the question on, that may have been
A: Savings are only accounted for after spending it and violated here, on the separation of powers?
then there is excess of the spending for that A: Because in effect, it was the President who
appropriation. In this case, there was no expenditure for determines for what the project the money will be spent
the purpose it was appropriated. It was impounded, and for, when it should have been Congress having the
they were considered as savings and thereafter power to appropriate funds. TN (DAP issue)
transferred, thats the question; because when we speak
of savings, it must have been expended and the excess Q: who has the authority, if authorized by law, to transfer
of the expenditure are now considered as savings. You funds?
would only know that at the end of the fiscal year, not at
the middle of the fiscal year. At one time, it was the Chief of the AFP that transfer the
funds from the savings of AFP for a particular item to
So then, they are expecting that it might be declared another item. (BAR)
unconstitutional, aside from the fact that there was no
law authorizing the President to transfer, and it should Q: Does the Chief of Staff have that power?
be from one department to another department under
the same branch, or from one item to another item within A: No, he doesnt have that power. If at all, the power is
the same department. Here, from the President to given to the President being the commander-in-chief of
Congress. the AFP but is limited only to the executive branch. If
AFP is under the executive branch then probably, the
The money that was given to Congress, in relation to the President has the power if authorized by law.
impeachment of Corona were taken from DAP. There
were proves that the DBM Secretary wrote letters to the Paragraph 6 Section 25 of Article VI, on discretionary
Congressmen asking them, what project do they want funds, most of the funds that are discretionary, they
for their money that was earmarked for them from the need not liquidate them. You just state there that it was
DAP to spend for. Thus, violating not only par. 5 of spent for a public purpose. so I doubt there are
section 25, but as well as the separation of powers. appropriate vouchers; most of the intelligence funds are
discretionary funds, there are no receipts attached
Q (student): Is DAP a law? supporting the disbursement for as long as you have the
certification to the effect that it was spent for a public neither can Congress spend what it has authorized.
purpose. The rationale of this basic check and balance is to
prevent abuse of discretion in the expenditure of
Suplico, et al. vs Romulo Neri, et al, GR No. 178830, public funds.
July 14, 2008 (TN) if you can recall the ZTE; in order
for us to implement the project we need money. So we Thus, the Executive branch cannot spend a single
borrowed money from China also. centavo of government receipts, whether from taxes,
sales, donations, dividends, profits, loans, or from any
Q: What did the government do on this? other source, unless there is an appropriation law
authorizing the expenditure.
A: We contracted a loan. Instead of remitting the
proceeds of the loan to the national treasury, they Any government expenditure without the corresponding
applied the proceeds directly to the project. In effect, appropriation from Congress is unconstitutional. There is
there was no appropriation law authorizing the no exception to this constitutional prohibition that "no
disbursement of those proceeds. money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." This
Gi automatic nila, pareho ba og mangutang ka nga dili constitutional prohibition is self-executory.
na kinahanglan og appropriation law kung monthly na
nimo or annual amortization because the amount is To further insure compliance with Section 29 (2), Article
already determined. In the next budget, you dont even VI of the Constitution, the Administrative Code of
have to include that, it is understood that it is included in 1987 expressly prohibits the entering into
the budget of that department nga naka-utang, and contractsinvolving the expenditure of public funds
automatically the money is disbursed and is with unless two prior requirements are satisfied. First, there
authority. It is what exactly they did, shortcut, they must be an appropriation law authorizing the
borrowed the money for a specific purpose of expenditure required in the contract. Second, there
government and then it was approved, they got the must be attached to the contract a certification by
money and supposedly applied it directly for the project. the proper accounting official and auditor that funds
have been appropriated by law and such funds are
Q: Is that allowed: available. Failure to comply with any of these two
requirements renders the contract void.
A: Supreme Court said, Any government expenditure ||| (Sulpico v. NEDA, G.R. No. 178830, 179317, 179613,
without the corresponding appropriation from Congress July 14, 2008)
is unconstitutional. There can be no dispute that the
proceeds of foreign loan, whether concluded or not, So in this case, nang loan ka e-remit nimo, to get the
cannot be obligated in a procurement contract without money back, in order to apply it to the project you
prior appropriation from Congress. When the executive appropriate the funds. Pagkatapos bayaran nimo ang
branch secures a loan to fund a procurement of goods or utang, then there has to be also appropriation law
services, the loan proceeds enter the National Treasury authorizing payment. Pero ang iyang repayment na,
as part of the general funds of the government. subsequent payment it will now be covered by automatic
Congress must appropriate by law the loan proceeds to appropriation.
fund the procurement of goods or services, otherwise
the loan proceeds cannot be spent by the executive There was a case involving the COMELEC. There was
branch.When the loan falls due, Congress must make appropriation of funds for the procurement of election
another appropriation law authorizing the repayment of paraphernalia, but what happened here, nagbidding, ang
the loan out of the general funds in the National nakada-ug ang highest bidder, beyond the appropriated
Treasury. This appropriation for the repayment of the amount. (BAR)
loan is what is covered by the automatic appropriation.
The Constitution requires an appropriation law before Q: What happened?
public funds are spent for any purpose. Section 29 (2), A: it was nullified by the Supreme Court saying that it
Article VI of the Constitution provides: was not authorized by an appropriation law.
No money shall be paid out of the
Treasury except in pursuance of an (ii) Presidential veto and Congressional override
appropriation made by law. 2. Non-legislative
The power of the purse or the power of Congress
a) Informing function
to authorize payment from funds in the National
Treasury is lodged exclusively in Congress. One b) Power of impeachment
of the fundamental checks and balances finely c) Other non-legislative powers
crafted in the Constitution is that Congress Confirmation of Appointments
authorizes the amount to be spent, while the Q: What is the Commission on Appointments? (TN)
Executive spends the amount so authorized. The A: This is another extension of Congress where
Executive cannot authorize its own spending, and members all come from Congress. 12 Senators and 12
members coming from the HR to be headed by the Additionally, heres the list in the Commission on
President of the Senate who can only vote if there is a Appointments Primer
tie. Heads of Executive Departments (Cabinet and
Cabinet-rank officials)
Q: When can they hold session? (TN)
A: Only when Congress is in session. Ambassadors, other Public Ministers and
Consuls (under the 1987 Constitution and the
Q: Does the composition need to be fully or completely Foreign Service Act)
filled up? (TN)
Officers of the Armed Forces from the rank of
A: No. For as long as they will constitute a forum, that is
alright. Colonel or Naval Captain
Regular Members of the Judicial and Bar
Q: What are its functions? (TN) Council
A: Basically, just to confirm and affirm nominations made
Chairman and Commissioners of the Civil
by the President while Congress is in session. These are
what we call Regular Appointments. Service Commission
Chairman and Commissioners of the
Q: What is the Commission on Appointments? (TN) Commission on Elections
A: This is another extension of Congress where
Chairman and Commissioners of the
members all come from Congress. 12 Senators and 12
members coming from the HR to be headed by the Commission on Audit
President of the Senate who can only vote if there is a Members of the Regional and Consultative
tie. Commissions
Q: When can they hold session? (TN) 1. Chairman of the Commission on Higher
A: Only when Congress is in session. Education
2. Chairman of the Commission on Information
Q: Does the composition need to be fully or completely and Communications Technology
filled up? (TN) 3. Chairman of the Housing and Urban
A: No. For as long as they will constitute a forum, that is Development Coordinating Council
alright. 4. Chairman of the Metropolitan Manila
Development Authority
Q: What are its functions? (TN) 5. National Security Adviser
A: Basically, just to confirm and affirm nominations made 6. Director-General of the National Economic
by the President while Congress is in session. These are and Development Authority Presidential Adviser
what we call Regular Appointments. on Peace Process
7. Lead Convenor of the National Anti-Poverty
Q: What are these appointments that require Commission Punong Chairman of the
confirmation by the CA? *** Commission on Filipinos Overseas
A: Chief of Philippine National Police
1. Heads of the different departments of the However, it must be noted that the appointments
Executive Branch except for the VP who may be
of all judges and the Ombudsman shall not be
appointed to a Cabinet position; that does not
require confirmation of the CA. confirmed by the Commission on Appointments.
2. Officers of the AFP whose rank ranges from Instead, they are recommended by the Judicial and
Colonel to General in the army. In the navy, Bar Council, and the President shall select from the
Captain to Admiral. recommendations.
3. Ambassadors and other public officers including
the consuls. Q: 2 kinds of Presidential Appointments?
4. Appointment vested in the President by the 1. Regular Appointments - President
Constitution (i.e. appointment of Constitutional makes a nomination while Congress is
Commissioners and Regular members of JBC) in session
2. Recess / Ad Interim Appointments
TN: With regards to the enumeration, that cant be Nominations made while the Congress
increased or reduced by ordinary legislation, should you was not in session. Such does not
increase the number of government official requiring confirmation by the CA.
confirmation by the CA, you need an amendment to the
Constitution. Similarly, if you are going to reduce those Q: How about if the appointment is only temporary or in
appointments that would require confirmation, it has to acting capacity? (TN)
be an amendment to the Constitution.
A: That would not need any confirmation by the CA. What the President sends to the Commission is just a
[Temporary appointments are provided in Admin Code] nomination. After the Commission has given its consent,
the President issues the appointment. It is only when the
Case in point: Pimentel, Jr. v. Ermita, G.R. No. 164978, last stage has been completed may the officer
October 13, 2005 concerned take his oath of office.
SC sustained the President Arroyo in this case. If only a Q: What is the process in ad interim appointments?
temporary capacity to fill in the gap while the President (Primer of the Commission on Appointments)
is still meditating on who to appoint (regular The second paragraph of Article VII, Sec. 16, of the
appointment) as Secretary of a particular department or 1987 Constitution also empowers the President to issue
Cabinet member, that would not require a confirmation appointments while Congress is not in session. Such
by the CA. As regards Ad interim appointment appointments are called ad interim appointments, and it
however, it becomes effective upon qualification of the goes through the following stages:
nominee. 1. appointment
Finally, petitioners claim that the issuance of 2. confirmation
appointments in an acting capacity is susceptible to An ad interim appointment is permanent in nature and
abuse. Petitioners fail to consider that acting takes effect immediately. Thus, one who was issued an
appointments cannot exceed one year as expressly ad interim appointment may immediately enter upon the
provided in Section 17(3), Chapter 5, Title I, Book III discharge of his functions.
of EO 292. The law has incorporated this safeguard to An ad interim appointment ceases to be valid upon
prevent abuses, like the use of acting appointments as a disapproval by the Commission on Appointments or, if
way to circumvent confirmation by the Commission on not confirmed, until the next adjournment of Congress.
Appointments.
In distinguishing ad interim appointments from Judge: Unlike temporary appointment, this is
appointments in an acting capacity, a noted textbook PERMANENT. This is issued by the President when
writer on constitutional law has observed: Congress is not in session and therefore CA is not in
Ad-interim appointments must be session. It is effective upon qualification of the nominee.
distinguished from appointments in an However, if its not confirmed, it will last only until the
acting capacity. Both of them are effective next adjournment of Congress. Such nominee can be
upon acceptance. But ad-interim renominated.
appointments are extended only during a
recess of Congress, whereas acting
appointments may be extended any time Q: If disapproved, can the President re-nominate the
there is a vacancy. Moreover ad-interim same candidate?
appointments are submitted to the A: NO.
Commission on Appointments for
confirmation or rejection; acting Q: If approved, what will happen next?
appointments are not submitted to the A: The President would issue a Commission. Thereafter,
Commission on Appointments. Acting that officer is going to take his oath of office.
appointments are a way of temporarily
filling important offices but, if abused, they Q: If not acted upon, what would be the
can also be a way of circumventing the effect/consequence?
need for confirmation by the Commission A: It is understood that the appointment shall last only
on Appointments. until the next adjournment of session of Congress.
However, we find no abuse in the present case.
The absence of abuse is readily apparent from Q: Can such appointee be re-nominated?
President Arroyo's issuance of ad A: Yes. That happened to De Lima, Dinky Soliman. For
interim appointments to respondents immediately upon 4 years, they have not been confirmed, until finally, just
the recess of Congress, way before the lapse of one recently, their nominations were confirmed by the CA.
year.
||| Q: Is there a limit on the number of re-nomination?
Q: What is the process in regular appointments? (Primer A: No. That is the prerogative of the President. To limit
of the Commission on Appointments) that would be a violation of the separation of powers.
A: The regular appointments which are contemplated What they must do is DISAPPROVE so that, that
under the first paragraph of Article VII, Section 16 of the candidate will not be re-nominated.
1987 Constitution go through the following stages:
1. nomination TN: CA promulgates its own rules and regulations,
2. consent independent of the rules and regulations of the
3. appointment Congress. Congress cannot interfere in the promulgation
4. acceptance by the nominee of such rules. In that sense, CA is independent. Although
highly partisan because if you are no longer a member
of the political party that nominated you as a member of What you must TN on article VII guys that is
the CA, automatically you cease to be a member of the EXECUTIVE BRANCH, you have to know what is
CA. (Pimentel, Jr. v. Ermita, G.R. No. 164978, October Executive Power,
13, 2005)
Q: if executive power is vested in the president, what
Case in point: | Matibag v. Benipayo, G.R. No. 149036, would be the consequence?
April 02, 2002
20.ID.; ID.; ID.; ID.; ID.; WHEN DISAPPROVED A: He is the chief executive and the administrator of the
CANNOT BE REVIVED BY ANOTHER AD laws of the land, you know already if he is the chief
INTERIM APPOINTMENT. The prohibition on executive, he controls the executive branch and all
reappointment in Section 1 (2), Article IX-C of the offices belonging to the executive branch, as the
Constitution applies neither to disapproved nor by- administrator of the laws of the land he make sure that
passed ad interim appointments. A disapproved ad laws are faithfully executed.
interim appointment cannot be revived by another ad
interim appointment because the disapproval is final There are powers however, that are not expressly
under Section 16, Article VII of the Constitution, and not provided in the constitution being given either to the
because a reappointment is prohibited under Section legislative or judiciary branch it is understood that this
1(2), Article IX-C of the Constitution. A by-passed ad power should be exercise by the president, this is what
interim appointment can be revived by a new ad we call RESIDUAL POWER of the president, being the
interim appointment because there is no final chief executive. One of these powers is the power to
disapproval under Section 16, Article VII of the
deport undesirable aliens; the power on who is to enter
Constitution, and such new appointment will not result in
into the country is also a residual power TN of the case
the appointee serving beyond the fixed term of seven
years of Marcos vs Manglapus.
Another power of the president which is not provided in

Q: Would that constitute a violation against prohibition
the constitution that is understood that this power should
on re-appointment if the same person is re-nominated by
be exercise by him, this what we call the IMMUNITY OF
the President?
A: No violation because that statement in the provision THE PRESIDENT FROM SUIT, the source of immunity
of the Constitution stating that it is without re- is not by express provision of the constitution rather it is
appointment is applicable only to REGULAR more of jurisprudential source rather than provided by
APPOINTMENTS. An ad interim/recess appointment is the constitution TN of the extent of the enjoyment of the
not the kind of appointment contemplated by law that presidential immunity always remember this guys if the
prohibits re-appointment. (TN) president is immune from suit
Q: Any chance of a party-list representative being Q: up to what extent?

represented in the electoral tribunal or in the commission
A: only for acts he committed in the performance of his
on appointments?
A: Yes. For as long as the representative complies with official function as president during his incumbency,
the requirements under the Constitution for appointment actual tenure NOT TERM, so even if he has still five
as member of the said bodies such as proportional years, however, is no longer the president of the republic
representation from the political parties. Its up for these he can no longer enjoy the immunity from suit, TN of the
bodies to promulgate the rules and regulations that may case of Estrada vs Desierto, and the case of Romualdez
allow the members coming from the party-list to vs Sandiganbayan so you notice in all cases although
represent in the electoral tribunal and/or in the the target is the president, he is never impleaded as the
commission on appointments. defendant rather it is always the executive secretary
thats the case of David et al vs Ermita, SC said it is not
Congressional Records and Books proper to implead the president as respondent settled is
The records and books of accounts of the Congress the doctrine that the president during his tenure of office
shall be preserved and be open to the public in
or actual incumbency may not be sued in any civil or
accordance with law, and such books shall be audited by
the Commission on Audit which shall publish annually an criminal case and there is no need provide for it in the
itemized list of amounts paid to and expenses for each constitution. CIVIL OR CRIMINAL ha sa ato pa.
Member. 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
IV. Executive Department crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of
a non-sitting president. Petitioner cannot cite any or to waive it is solely belongs to the president you
decision of this Court licensing the President to commit cannot use that as a defense against the president
criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that REMEDIAL LAW; CRIMINAL PROCEDURE;
immunity is an inoculation from liability for unlawful acts PROSECUTION OF OFFENSES; LIBEL; RULES
and omissions. The rule is that unlawful acts of public THEREON SHOULD BE EXAMINED FROM VARIOUS
officials are not acts of the State and the officer who acts PERSPECTIVES IF DIRECTED AT A HIGH
illegally is not acting as such but stands in the same GOVERNMENT OFFICIAL; THE SUPREME COURT
footing as any other trespasser.||| (Estrada v. Desierto, SHOULD DRAW A FINE LINE INSTEAD OF LEAVING
G.R. Nos. 146710-15, 146738, March 02, 2001) IT TO A LOWER TRIBUNAL. In fact, the Court
observed that high official position, instead of affording
Incidentally, it is not proper to implead President Arroyo immunity from slanderous and libelous charges would
as respondent. Settled is the doctrine that the President, actually invite attacks by those who desire to create
during his tenure of office or actual incumbency, may not sensation. It would seem that what would ordinarily be
be sued in any civil or criminal case, and there is no slander if directed at the typical person should be
need to provide for it in the Constitution or law. It will examined from various perspectives if directed at a high
degrade the dignity of the high office of the President, government official. Again, the Supreme Court should
the Head of State, if he can be dragged into court draw this fine line instead of leaving it to lower
litigations while serving as such. Furthermore, it is tribunals.||| (Soliven v. Makasiar, G.R. No. 82585,
important that he be freed from any form of harassment, 82827, 83979, November 14, 1988)
hindrance or distraction to enable him to fully attend to
the performance of his official duties and functions. Now on the qualifications of the president the most
important part on the qualification on citizenship he must
Unlike the legislative and judicial branch, only one
be natural born, registered voter, able to read and write,
constitutes the executive branch and anything which
40 yrs of age on the day of election and resident of the
impairs his usefulness in the discharge of the many Philippines for 10 yrs, just over with that guys, the VP
great and important duties imposed upon him by the shall have the same qualification, although he may be
Constitution necessarily impairs the operation of the nominated as a cabinet secretary without need of
Government. However, this does not mean that the confirmation by the CA.
President is not accountable to anyone. Like any other
official, he remains accountable to the people but he Q: Section 4, what is the controversy relating to this?
may be removed from office only in the mode provided Formento vs. Estrada (id). What is the term of office of
by law and that is by impeachment.||| (David v. the President?
Macapagal-Arroyo, G.R. No. 171396, May 03, 2006)
A: This would now be an issue aside from the fact that
Q: if a case is filed against the president for collection of there was a question as to the qualification of Estrada
sum of money during his incumbency, will the action due to his conviction for plunder. They are asking for the
prosper? disqualification of Estrada as mayor because according
to the complainant in as much as he was convicted for
A: no plunder his right to run from public office likewise is
removed from him by perpetual disqualification. What is
Q: case for murder? Will the action prosper? the defense of Estrada was that he was granted with
absolute pardon. If absolute pardon was granted to him
A: no, you wait until he finishes his tenure
then he will be restored to his political and civil rights.
Another point you should TN also on immunity from suit And that is discretionary also to the president as one of
it is special to the president therefore, only the president his powers not subject to review even by the Supreme
Court.
can invoke the immunity not his cabinet members even if
they are consider as there alter ego, so you remember
Term of Office
also that case of Soliven vs Makasiar, where Soliven ask
for the dismissal of the complaint filed by president TN as to the term of office. The president and the vice
Aquino against the star(not sure) and the publisher on president are directly elected by the people for a definite
the ground is immune from suit, they are saying that wla term of 6 years. As to re-election; the president shall not
tay dag anan ani we cannot file a counter suit because be eligible for any re-election. The vice president has 1
he is immune from suit, SC said the privilege pertains to re-election.
the president by virtue of his office, there is nothing in
our laws that would prevent the president from waiving Q: Any possibility of the president serving more than 6
the privilege, the choice whether to exercise the privilege years?
A: Yes, provided that he has not served for more than 4
years as acting president rather as presidents
successor. Meaning, he was a vice president and he actually a derivative of the exercise of prerogative
succeeds to the presidency, provided he has not served conferred by the aforequoted constitutional provision
for more than 4 years he can run for election as thus the subsequent directive in the provision for the SC
president in the next election then definitely if he has to promulgate its own rules for the purpose. It is beyond
fully served the 6 years term as president in the election cavil that when the SC, as PET, resolves Presidential or
after that election, then he would like have 10 years. Vice Presidential Contest it performs what is essentially
Now, is this disqualification perpetual regardless he did a judicial power.
not finished his term. Like Estrada, he served only for
like 3 years. He did not finish his 6 years. That is why he It is also beyond cavil that when the Supreme
ran for president. Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is
Q: What was the theory here? essentially a judicial power. In the landmark case
A: Because he has not finished his term and therefore of Angara v. Electoral Commission, Justice Jose P.
the disqualification against re-election will not apply. But Laurel enucleated that "it would be inconceivable if the
it has never been resolved by the Supreme Court. TN Constitution had not provided for a mechanism by which
to direct the course of government along constitutional
nd
TN: as regards to Vice president, 2 terms and the 2 channels." In fact, Angara pointed out that "[t]he
paragraph is clear that no voluntary renunciation in the Constitution is a definition of the powers of government."
office for any length of time shall not be considered as And yet, at that time, the 1935 Constitution did not
an interruption in the continuity of the service for the full contain the expanded definition of judicial power found in
term for which he was elected. That only applies to the Article VIII, Section 1, paragraph 2 of the present
VP not to the President. That if he resigns before the Constitution.
term expires it didnt say that it will be an interruption in With the explicit provision, the present
the continuity of his term. What is mentioned is that it is Constitution has allocated to the Supreme Court, in
not an interruption it is only with the respect of the term conjunction with latter's exercise of judicial power
of office of the vice president because apparently he has inherent in all courts, the task of deciding presidential
2 terms to compute the consecutiveness of the term they and vice-presidential election contests, with full authority
have to say that. Since there is no mention about in the exercise thereof. The power wielded by PET is a
interruption on the continuity of his term should he not derivative of the plenary judicial power allocated to
finish his term then he is still eligible for election as courts of law, expressly provided in the Constitution. On
president. There can hardly be called as re-election I the whole, the Constitution draws a thin, but,
suppose as far as he understands the law. nevertheless, distinct line between the PET and the
Supreme Court.
Q: On the canvassing of the election returns. Who does If the logic of petitioner is to be followed, all
that? Members of the Court, sitting in the Senate and House
Electoral Tribunals would violate the constitutional
A: It is not the COMELEC neither the SC but the proscription found in Section 12, Article VIII. Surely, the
members of the congress as the canvassers of the petitioner will be among the first to acknowledge that this
election returns of the president and the vice president. is not so. The Constitution which, in Section 17, Article
Whoever garners the highest number of votes shall be VI, explicitly provides that three Supreme Court Justices
declared as the winner. In case of a tie, it shall be shall sit in the Senate and House Electoral Tribunals,
broken by majority votes of the members of the congress respectively, effectively exempts the Justices-Members
voting in a joint session voting separately. thereof from the prohibition in Section 12, Article VIII. In
the same vein, it is the Constitution itself, in Section 4,
Presidential Electoral Tribunal Article VII, which exempts the Members of the Court,
constituting the PET, from the same prohibition.
Electoral tribunal for vice president and president is the
PET. Macalintal questioned the constitutionality of the We have previously declared that the PET is not simply
creation of PET consisting of the justices of the SC an agency to which Members of the Court were
because under the Constitution it says that theyre not designated. Once again, the PET, as intended by the
supposed to do non-judicial function as it will violate the framers of the Constitution, is to be an
separation of powers. This is an election function institution independent, but not separate, from the
(electoral tribunal). It was then asked by Macalintal judicial department, i.e., the Supreme Court.
whether or not it is constitutional. SC said that a plain ||| (Macalintal v. Presidential Electoral Tribunal, G.R. No.
reading of article 7 par.7 sec.4 readily reveals a grant of 191618, November 23, 2010)
authority to the SC sitting en banc in the same vein
although the method by which the SC exercise this In the landmark case of Angara vs. Electoral
authority is not specified in the provisions the grant of Commission, JP Laurel inoculated that it would
power does not contain any limitation on the SCs inconceivable if the constitution had not provided for a
exercise thereof. The SC method of deciding presidential mechanism by which to direct the course of government
and vice presidential election contest through the PET is along constitutional channels. In fact Angara pointed out
that the constitution is a definition of the powers of the Q: In Permanent Vacancy, What if at the beginning of
government and yet at that time the 1935 constitution did the term the president dies, resigns, permanently unable
not contain the expanded definition of judicial power. So, to perform his duties? What will happen?
this is not an electoral function but rather, it was A: The VP will not just be acting but becomes the new
emphasized in this case that this is a judicial power and president. There will be a vacancy in the office of the VP.
therefore does not violate article 7 section 4 par. 7 Q: How will it be filled up?
thereof. TN of that. A: There will be a nomination of the President coming
from congress who will be chosen by majority votes of
Q: Also, in relation to the filing of the election protest in the members of the congress.
the presidential electoral tribunal, what will happen if the
protestant will resume the function of whatever position During incumbency:
that he left before he ran as president? Like, Santiago
she went back as member of the senate because she Q: Permanent vacancies: 4 ways to have a permanent
cant wait for the result of the election. What was the vacancy.
effect of her returning to the senate while there was still A:
the pending election protest that he filed against 1) he dies
Ramos? 2) he resigns (TN of the definition of resignation in the
case of Estrada vs. desierto. What was emphasized is
A: She is then considered to have withdrawn or abandon that there is no form of resignation. It may not be formal,
her election protest against ramos. In the case of need not be in writing. For as long as there is the
legarda, legarda filed an election protest against de intention to relinquish the powers of the office and his
castro. While waiting for the outcome of the election acts corresponds to the renunciation or to the giving up
protest she ran as senator. of the powers then one is considered to have resigned.
Vice president will be now the President.)
Q: What was the effect? 3) removed through impeachment
4) one who is permanently incapacitated to perform his
A: Like in the case of Santiago she was considered to duties.
have effectively abandoned or withdrawn her protest
when she ran in the senate which term coincides with Q: Temporary Vacancies: (TN)
the term of the Vice Presidency. A:
1) When the president is under temporary disability (TN
Q: On the Salaries of President and Vice President, it of the circumstances)
shall be determined by law. Can it be decreased during a) president himself declares that he cannot
his tenure? performs his duties. Automatically the VP will act as the
president.
A: No, it cannot be decreased. But it can be increased. b) by the declaration of the majority of the
However, it will only take effect after the expiration of the members of the cabinet to the congress that the
term of office. president is unable to perform his duties. Automatically
the VP shall act as a president but of course that can be
Filling up of vacancy disputed by the president if he does not agree and can
simply tell the congress that his cabinet is lying.
Q: 2 ways by which vacancy may occur: c) if this majority of the cabinet would inist the 2
(1) at the beginning of the term or second time that indeed the president is unable, then the
(2) during the incumbency of the president. congress will now have to decide to declare the
president under temporary disability.
At the beginning of the term it could be temporary or
permanent. Q: How many votes of the congress is needed?
Temporary Vacancy, when the president does not A: 2/3 of the members voting separately.) TN of the case
qualify in the meantime because there are still of Estrada vs Desierto on temporary disability.
controversies as to his qualification, no president was
chosen Petitioner now appears to fault Congress
for its various acts expressed thru resolutions which
Q: Who will succeed? brushed off his temporary inability to govern and
A: The VP shall only act as the president. President-on-leave argument. He asserts that these
Q: What if there is no Vice President? acts of Congress should not be accorded any legal
A: It will be the President of the Senate that will act as significance because: (1) they are post facto and (2)
President. a declaration of presidential incapacity cannot be
Q: In the absence of the President of the Senate? implied.
A: It will be the Speaker of the House of Representative. We disagree. There is nothing in section 11
of Article VII of the Constitution which states that the
declaration by Congress of the President's It will only be effective until it is not revoked within 90
inability must always be a priori or before the Vice- days. From the assumption of office by the president
President assumes the presidency. In the cases at regular, it becomes permanent. If there is any revocation
bar, special consideration should be given to the fact of the appointments of the acting president , it should be
that the events which led to the resignation of the done within 90 days from the assumption and re-
petitioner happened at express speed and assumption of office.
culminated on a Saturday. Congress was then not in
session and had no reasonable opportunity to act a Section 15 MIDNIGHT APPOINTMENTS
priori on petitioner's letter claiming inability to The President should not make any appointments. TN:
govern. Within 60 days or 2 months before the regular
||| (Estrada v. Desierto, G.R. Nos. 146710-15, 146738, Presidential election. This does not apply to local chief
April 03, 2001) executives. It only applies to the President.
Q: Going back to permanent vacancy, who will succeed? Q: What is the extent?
A: It will be for the VP. A: Practically, all government positions including the
judiciary, except justices of the Supreme Court.
In the absence of VP, it will be the President of the
Senate. CASES: de Castro vs. JBC; Soriano vs. JBC.
In the absence of the President of the Senate, it will be
the Speaker of the House of Representative. Given the background and rationale for the prohibition in
Section 15, Article VII, we have no doubt that the
Q: Now then, in the absence of those mentioned above? Constitutional Commission confined the prohibition to
A: They will convene and pass a law providing for the appointments made in the Executive Department. The
manner of succession. framers did not need to extend the prohibition to
appointments in the Judiciary, because their
Q: Can they call for a special election? establishment of the JBC and their subjecting the
A: You remember if the vacancy occurs within 18 nomination and screening of candidates for judicial
months before the next regular election, no more special positions to the unhurried and deliberate prior process of
election. You have to wait until a regular election will be the JBC ensured that there would no longer be midnight
called which is every 2nd Monday of May. appointments to the Judiciary. If midnight appointments
in the mold of Aytona were made in haste and with
TN: the calling of special election does not need the irregularities, or made by an outgoing Chief Executive in
signature of the acting president. the last days of his administration out of a desire to
subvert the policies of the incoming President or for
TN: Printing of the bill before it is voted upon is partisanship, the appointments to the Judiciary made
dispensable if there is a certification that the bill is after the establishment of the JBC would not be suffering
urgent. from such defects because of the JBC's prior processing
of candidates. Indeed, it is axiomatic in statutory
Q: When there is vacancy in both offices (president and construction that the ascertainment of the purpose of the
VP)? enactment is a step in the process of ascertaining the
A: There will be a special election. [Art. 7 Sec. 10 of intent or meaning of the enactment, because the reason
1987 Consti] for the enactment must necessarily shed considerable
light on "the law of the statute," i.e., the intent; hence,
Section 13 HOLDING OTHER OFFICES/ CONFLICT the enactment should be construed with reference to its
OF INTERESTS intended scope and purpose, and the court should seek
to carry out this purpose rather than to defeat it. ||| (De
He cannot appoint any of his relatives either by Castro v. Judicial and Bar Council, G.R. No. 191002,
consanguinity or affinity in the fourth civil degree. March 17, 2010)
BAR Q: To what positions in the government during his
tenure?
A: The gist of the Supreme Court regarding the midnight
1. As members of the constitutional appointments even applied to appointments of the
commission judiciary except for the Supreme Court because of that
2. Office of the ombudsman provision of the constitution that the President must
3. Secretaries under secretaries make an appointment within 90 days from the
4. Chairmen or heads of bureaus or offices occurrence of the vacancy. He has to fill that up. It is
including GOCCs and their subsidiaries. mandatory. The same goes with the Sandiganbayan.
Controversy: Relating to the return of the JBC list for
Section 14 APPOINTMENTS EXTENDED BY AN appointment to the Sandiganbayan, which the JBC also
ACTING PRESIDENT returned to the President because they are not going to
change the list and so the President was compelled to
make the appointment because the period within which Q: As part of the reorganization of the executive branch,
to make the appointment which is 90 days from the what is included?
occurrence of the vacancy had already lapsed. Because A: He can create offices without violating the separation
of that requirement, under the Constitution, that the of powers or even abolish the office.
appointment of the justices of the Supreme Court,
according to the Supreme court, the matter of midnight The creation of the Truth Commission that was
appointment does not apply to the SC justices. sustained by the Supreme Court as constitutional after
all that is part of his executive power as regards to make
CASE: Pimentel vs. Ermita regarding on the acting sure that laws are faithfully executed. According to the
appointments not requiring any confirmation from the CA Supreme Court in those cases where the President
because that is a discretionary power of the President makes an office under the executive branch, it is not
that cannot be included into by the CA or the usurpation of legislative function because it does not
Commission on Appointments. entail another appropriation of funds for the operation of
the office because the funds will be taken from the
Congress, through a law, cannot impose on the appropriated amount for the executive branch.
President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego, With regards to the abolition, inasmuch as the office is
whether temporary or permanent, holds a position of created by law, it is understood that if there is any
great trust and confidence. Congress, in the guise of abolition of that office, that is within the prerogative of
prescribing qualifications to an office, cannot impose on the Congress.
the President who her alter ego should be.
The office of a department secretary may TN: CASE: Buklod ng Kawaning EIIP vs. Zamora
become vacant while Congress is in session. Since a where the Supreme Court said,
department secretary is the alter ego of the President,
the acting appointee to the office must necessarily have GR: The power to abolish a public office is lodged with
the President's confidence. Thus, by the very nature of the legislature.
the office of a department secretary, the President EXC: However, is that as far as bureaus, agencies (TN:
mustappoint in an acting capacity a person of her choice this may also be asked in administrative law), or offices
even while Congress is in session. That person may or in the executive department, Executive Department are
may not be the permanent appointee, but practical concerned, the Presidents power of control may justify
reasons may make it expedient that the acting appointee him to inactivate the function of a particular office or
will also be the permanent appointee. certain laws may grant him broad authority to carry out
The law expressly allows the President to make the organization measures for simplicity, transparency
such acting appointment. Section 17, Chapter 5, Title I, and expigiency in the government service. The Chief
Book III of EO 292 states that "[t]he President may Executive under our laws has the continuing authority to
temporarily designate an officer already in the reorganize the administrative structure of the office of
government service or any other competent person to the President.
perform the functions of an office in the executive
branch." Thus, the President may even appoint in an CASE: Biraogo vs. Philippine Truth Commission,
acting capacity a person not yet in the government Supreme Court said suffice to say there will be no
service, as long as the President deems that person appropriation but only an allotment or allocation of
competent. existing funds already appropriated accordingly there is
||| (Pimentel, Jr. v. Ermita, G.R. No. 164978, no usurpation on the power of the Congress to
October 13, 2005) appropriate funds for the establishment of the Truth
Commission therefore there cannot be a violation of the
Section 16 APPOINTMENTS REQUIRING THE separation of powers.
CONFIRMATION OF THE COMMISSION ON
APPOINTMENTS Difference between control and supervision:
To emphasize, on the appointments of the President In control, the President can change the decision of the
during recess, it is permanent. Immediately effective subordinate. In the matter of supervision, the President
upon qualification of the nominee, however, the term is only oversees to make sure that the government official
limited if not confirmed. It shall last only until the next performs his functions in accordance with law. He
adjournment of the Congress. cannot change the decision of the subordinate. That is
the difference, the President who is only supervision
Section 17 CONTROL OF THE PRESIDENT OVER over local governments.
THE EXECUTIVE DEPARTMENTS, BUREAUS AND
OFFICES Q: Who has control over local governments?
To ensure that laws are faithfully executed, TN: As part A: It is the congress through the Local Government
of the control, the President has the power to reorganize Code.
the office.
But the President has only supervision over the local 3. Review decisions of Court Marshalls
government units therefore the President cannot change
the decisions of local governments. DECLARATION OF MARTIAL LAW
Q: When can the President call out the AFP to assist
ALTER-EGO DOCTRINE him in the discharge of his functions?
A: Whenever it becomes necessary in order to prevent
TN: With respect to the secretaries or heads of the or suppress lawless violence, invasion or rebellion
executive branches of government, they are considered
as extensions of the office of the President. In other Q: Is it subject to judicial review?
words, the secretaries are considered as the alter-egos A: NO.
of the President. The act of a Secretary is considered to
be the act of the President, unless it is reprobated, Q: Is it subject to revocation by Congress?
repealed or disapproved by the President. A: NO. In fact, it is the most potent power that the
President may exercise as the Commander In Chief of
TN: There are certain functions of the President that the AFP.
cannot be delegated to an alter ego
SUSPENSION OF THE PRIVILEGE OF THE WRIT OF
BAR: Limitations on the Delegation Power of the HABEAS CORPUS
President Q: When?
A: When there is actual rebellion or invasion, when
Even if it is delegated by the President, or even if ratified public safety requires it. It is only effective for 60 days if
by him, the same act of the alter-ego is ineffective and not extended or revoked by Congress, automatically, it
does not bind because such functions can only be acted shall be lifted by operation of law after expiration of the
upon by the President, that cannot be delegated. 60-day period, reviewable by the SC under its exercise
1) Immunity from Suit -can only be of judicial review.
enjoyed by the President
2) Power to declare Martial Law Q: Is this Remedy of revocation of judicial review
This cannot be delegated to any simultaneous or the choice of a person who may
secretary of the President. Even if the question the factual basis of the declaration of ML or the
President declares it or ratifies it through suspension of privilege of the writ of habeas corpus?
the Executive Secretary or Justice Would you go directly to the SC or should you wait until
Secretary, such is invalid. after the Congress shall have decided whether to revoke
3) Power to suspend of the privilege of the declaration of Martial Law?
the writ of Habeas Corpus A: This is successive, not simultaneous. Precisely the
4) The power to enter into treaties- requirement of the President from the declaration of ML
exclusive to the President and or the suspension of the privilege of he writ of habeas
cannot be delegated corpus to do a report within 48 hours. Immediately then,
5) The power to grant pardon the Congress will convene and will decide whether to
revoke it or not.
Case: BAR:
With constitutional parameters already established, we Q: How many votes are needed to revoke it?
may also note, as a source of suppletory guidance, the A: MAJORITY VOTING JOINTLY. The revocation of the
provisions of R.A. No. 245. The afore-quoted Section 1 declaration of Martial Law or the suspension of the
thereof empowers the Secretary of Finance with the privilege of the Writ of Habeas corpus is the only
approval of the President and after consultation of the instance where there is joint voting. Thereafter, if it is
Monetary Board, "to borrow from time to time on the not revoked, there is another option: To go to the
credit of the Republic of the Philippines such sum or Supreme Court and ask for a judicial review.
sums as in his judgment may be necessary, and to issue
therefor evidences of indebtedness of the Philippine ***Remember that the Bill of Rights are not suspended,
Government." Ineluctably then, while the President therefore, you cannot be detained for more than 72
wields the borrowing power it is the Secretary of Finance hours without being judicially charged. The right to bail is
who normally carries out its thrusts.|||(Spouses still available if the offense charge is bailable.
Constantino v. Cuisia, G.R. No. 106064, October 13,
2005) In reality, as regards to the suspension of the priv writ of
habeas corpus, it will not be suspended for a period of
Section 18 POWER OF THE PRESIDENT AS THE 60 days with respect to the person arrested without a
COMMANDER IN CHIEF OF THE AFP warrant. The suspension of the privilege with respect to
Q: What are the calling-out powers of the President? a particular individual arrested without a warrant shall
A: These are: last only for a period of three (3) days because if he is
1. Declaration of Martial Law not judicially charged, he should be released otherwise
2. Suspension of the Writ of Habeas Corpus
you can demand for habeas corpus so that the court can ruled that only the President is authorized to exercise
inquire to the legality of detention. emergency powers as provided under Section 23, Art. 6
and the calling out power under Section 7, Art. 7 of the
For a particular individual, whether it is a suspension of 1987 Constitution. SC said that while the President
the privilege of the Writ of Habeas Corpus, it is only for a exercises full supervision and control over the police, a
period of three (3) days that he cannot avail of the local chief executive such as the governor only exercises
privilege of the Writ of habeas corpus because the Court operational supervision over the police and may exercise
has no jurisdiction due to the suspension. only a day to day operation. As discussed in the
deliberation of the Constitutional Commission only the
LIMITATION: You should not be detained without being President has full discretion to call on the, military when
judicially charged for more than 72 hours. in his judgment it is necessary to do so in order to
prevent or suppress lawless violence,, invasion or
In effect, this suspension of the privilege of the writ of rebellion.
habeas corpus merely extends the period of custodial
investigation without judicial interference because the Q. How is it different from the declaration of martial law
longest period under grave offenses that you can be and suspension of the privilege of the writ of habeas
detained without the court interfering for a custodial corpus?
investigation is 36 hours only. When there is a A. On the calling out, it is the discretion of the President,
suspension of the privilege, it will be extended to 72 unless there is abuse of discretion that cannot be
hours so However it is limited only to involving offenses reviewed by the SC under the power of judicial review.
related to the declaration of ML or the suspension of the Likewise, the President is not obliged to report to
privilege of the writ of habeas corpus. The offenses that Congress if he exercised the power.
you may be charged have to relate to invasion or
rebellion. If there is no relation to those offenses, then Unlike martial law or suspension of the privilege of the
there is no effect on the suspension of the privilege of writ of habeas corpus you will not that if the President
the Writ of Habeas Corpus for ordinary offenses. The does that it must be for a particular ground or grounds:
court still has the jurisdiction to inquire into the legality of 1. Either there is rebellion or invasion
detention. 2. The public safety requires the declaration or the
suspension of the privilege of the writ of habeas
POWERS OF THE PRESIDENT AS THE corpus
COMMANDER-IN-CHIEF OF THE ARMED FORCES
OF THE PHILIPPINES TN, should the President do that, he has to make a
A. Calling out power report in writing within 48 hours and immediately
To call on the members or the AFP Congress must convene. That power of the President
Q: What is the purpose? then may be checked by Congress because if Congress
A: Whenever it becomes necessary, he may call out the finds it baseless, meaning no factual basis to declare
members of the Armed Forces to assist him in the martial law or suspends the privilege of the writ of
discharge of his functions in order to prevent or to habeas corpus, Congress can always revoke it by a
suppress lawless violence, rebellion or invasion MAJORITY VOTE in a joint session, voting jointly.
B. Declaration of Martial Law Q. If Congress failed to check the power of the

C. Suspension of the Privilege of the Writ of Habeas President, is there still a remedy to correct what has
Corpus been done by the President in so far as the declaration
D. Reviewing decisions of Court Martial of martial law or suspension of the privilege of the writ of
habeas corpus?
TN the difference between the calling out power of the A. It can be brought up all the way to the SC under the
President and the declaration of martial law. power of judicial review. Therefore, in the matter as to
Q. Can this power be delegated to local chief whether or not the declaration of martial law or
executives? A. That was the issue in the Kulayan case, suspension of the privilege of the writ of habeas corpus
whether or not the governor of Maguindanao can also is a justiciable question, it is settled that it is a justiciable
call out the Armed Forces of the Philippines in order to question.
assist him in the suppression or prevention o lawless
violence or rebellion in his locality? Q. Who is a proper party to question the factual basis or
the validity of the declaration of martial law or he
A. JAMAR KULAYAN VS. TAN, JULY 3, 2012 suspension of the writ of the privilege of habeas corpus?
Where the SC said that the calling out power A. TN, that it can be raised by any citizen of the country.
contemplated under the constitution is exclusive to the He need not be the person directly injured. The
President of the Philippines as Commander-in-Chief, constitution expressly provides that any citizen can
that a provincial governor is not endowed with the power question the factual basis of the declaration of martial
to call upon the Armed Forces at his own bidding. It law or the suspension of the privilege of the writ of
habeas corpus.
Always remember that this power is vested in the

Other limitations on the declaration of martial law or the President. It is a full discretionary power of the President
suspension of the privilege of the writ of habeas corpus: This power is one of the powers that cannot be
Its only good for 60 days, meaning if not delegated to an alter ego. This is exclusive to the
extended by Congress, it shall automatically be president.
lifted after the lapse of 60 days from its
declaration Q. What are the different kinds of pardon that may be
Secondly, If one is arrested without a warrant, granted by the President?
can he still avail of his right to bail? Answer is A.
YES, the only guarantee here that there will be 1. Pardon
no judicial intervention within a period of 72 2. Amnesty
hours. If one is detained for more than 72 hours 3. Commutation
already without being charged in court, then he 4. Reprieves
can always ask for habeas corpus. It is not 5. Remission of fines and forfeiture
precluded, because the suspension of the
privilege of the writ of habeas corpus for a Comparing Pardon and Amnesty
particular individual who was arrested without a
warrant actually is effective only for 72 hours. Pardon, usually is granted by the President to persons
Although the effectivity of the suspension is convicted by final judgment for ordinary offenses. Take
good for 60 days but for a particular individual it note of the conditions, ha. Here the accused is already
should not last more than 3 days.or 72 hours convicted and the conviction is already final and
without being judicially charged. Once charged executory and he is granted pardon by the President.
and it is not bailable then you can be detained
until your case is terminated. Q. What will be the effect if granted pardon?
A. It depends. There are two kinds of pardon that may
PARDONING POWER OF THE PRESIDENT (Art. 19) be granted:
****** 1. Absolute
If it is absolute, there is no need of acceptance
If you can recall, Estrada was convicted after 6 years of by the pardonee. Whether he likes it or not, he
prosecution, spending millions of money. After he was will be granted the pardon and enjoy the benefits
convicted, what happened? He filed a motion of of the grant.
reconsideration and even before that was resolved by 2. Conditional
the court, Arroyo offered pardon to him. He didnt ask for If it is conditional, it has to be accepted because
it, it was offered to him through Secretary Puno and he it might be more burdensome to accept it. They
accepted the pardon that was offered to him and it was would rather continue with the service of the
not clear whether it was absolute or conditional. sentence and stay free board and lodging in the
Apparently, if it is not clear whether he was absolutely Bilibid rather than going out of the prison.
extended with pardon, what would be the consequence Sometimes, they will not accept because there
because this is now an issue as against Estrada. If you are certain conditions that they need to comply
are convicted and you are granted pardon, you may be before they will be granted pardon.
relieved only of the effects of further infliction of the
punishment. So if you were detained and granted Now, as I was saying earlier , pardon has to be
pardon, you will be released without fully serving the final. There has to be a conviction, and it must
sentence. But remember if convicted, there are be final, so that if you have still a pending
accessory penalties. appeal, you cannot be granted pardon by the
President.
Q. What are the accessory penalties?
A. It could be perpetual public disqualification and thats Q. What would be then effect if granted pardon
the question on Estrada. The point there here guys is assuming that you are convicted, the judgment of
you have to take note of this power of the president conviction has become final , you accepted the grant of
because it might be an issue when you take the bar pardon. What would be the effect?
examination next year. I suppose there is a pending A. The effect would be, that you would be relieved of
complaint already filed in the Supreme Court further infliction of the punishment. Say for example your
disqualifying Estrada as mayor of Manila because of his sentence is 20 years of imprisonment. After 1 year of
previous conviction. They believed that it was never serving without appealing the judgment you were
erased that conviction. That conviction did not at all granted pardon.
affect his public disqualification as the pardon granted
to him was silent as to whether or not he was restored to Q. Do you need to serve the 19 more years ?
his civil or political rights. A. The answer is NO, once granted pardon. In other
words that further infliction of punishment is removed
because of the grant of pardon. If convicted there is the Hopefully, that would be laid to rest with the SC with this
accessory penalty. pending complaint filed for the disqualification of
Estrada, questioning the validity of the pardon given by
Q. What is the accessory penalty? You have public Arroyo to Estrada.
disqualification, not only that, you will be deprived of
your civil rights like for example, parental authority over Q: Is this pardon, if granted, subject to Judicial Review
your minor children, or your authority over your wife, you by the SC?
would also be denied of that right over your wife , A: Generally, NO. Pardon is subject to the full
administration over your conjugal properties thats one discretionary power of the President. It is final and
among what we call civil interdiction. executory unless there is an allegation of abuse of
discretion amounting to lack or excess of jurisdiction.
Public disqualification for office is either for appointive or That is now their assertion as to the pardon given by
elective public positions. As a consequence of Arroyo to Estrada.
disqualification from public office, you cannot run for
public office anymore or you cannot anymore be TN that NOT ALL cases may be subject of pardon.
appointed to any office of government. You cannot also
be reinstated to any public office. EXCEPTIONS:
Q: Now then, if for example, you already fully served Impeachment

your sentence, is pardon still relevant to you? You have Convicted of election offenses - you cannot
served your sentence for 20 years and thereafter you be granted pardon unless there is a
were granted pardon. Is that still important? favorable recommendation form the
COMELEC
A: Yes. For purposes of removing the accessory If cited in contempt by the Congress
penalties such as public disqualification or civil pursuant to a Legislative Inquiry
interdiction. If pardon is granted, it may restore your civil If cited in contempt by Civil Courts
and political rights.
Let us apply this to the case of Erap Estrada. Erap AMNESTY

Estrada was convicted of plunder. That was only after
six years that he was convicted and millions of pesos TN that this is not under the sole discretion by the
were spent by the government to arrive at his conviction. President. This is subject to the favorable
It took so long, only to be granted pardon by Arroyo only recommendation of the Congress.
a few months or weeks after his conviction. In the
meantime, he filed a Motion for Reconsideration and TN that this can only be granted to individuals or class of
then he accepted the pardon granted on Arroyo. There persons who are charged with offenses of political
was no resolution on that Motion for Reconsideration. nature.
Q: Was the conviction final or still pending, given that the This can be granted even before conviction. So this
Motion for Reconsideration was not resolved? Was the particular power of the President may be availed of
MR mooted by the grant of pardon? before or after the conviction. You need not wait for the
final conviction of the person granted amnesty.
A: The theory here is that Arroyo may have abused her
discretion amounting to lack or excess of jurisdiction. Q: If granted, what will happen?
The grant of the pardon was null and void. One can still A: It would be as if he never committed the crime. There
question it anytime or any stage before the Supreme is total absolute exculpation and exoneration from the
Court. criminal culpability.
The things that they were pointing out questioning the TN of the concurrence of the Congress to the grant of
grant of pardon to Estrada are: amnesty. There has to be a law where there is the grant
of amnesty.
The things that they were pointing out questioning
the grant of pardon to Estrada was that the Q: What are powers similar to the pardoning power of
judgment was not yet final when the pardon was the President?
granted due to the pending MR. A:
Arroyo abused here discretion amounting to lack or
excess of jurisdiction because she granted the Commutation - reduction of the penalty by one
pardon to Estrada without any qualification degree lower
considering the number of years and the amount Reprieve - postponement of the execution of
spent to arrive at Estrada's conviction. judgment
Remission or Cancellation of Fines and Q: So what they're doing in the DFA is that they are
Forfeiture. making the Visiting Forces Agreement which
implements the RP-US Mutual Defense
Agreement into a simple Executive Agreement. The
The president may also grant pardon to persons who are RP-US Mutual Defense Agreement is the one that
convicted in administrative cases for the purpose of requires the concurrence of the Senate but not the
reinstating him in his office. However, there is one VFA. What is the difference?
exception that the president cannot grant pardon in A: Usually, a treaty or international agreement
administrative cases. That is when the administrative affects political or national issues that are more or
case involves judges and other court personnel. They less permanent. Executive agreements only
cannot be granted pardon by the president. Amnesty provide for details, transitory, implementing
may be granted by the Supreme Court but not by the international agreements which is why it does not
President. need Senate concurrence.
TN/Q: Parole if granted, what would be the effect? There is an issue related to this because of the
A: You are still in custody of the law but outside of jail. impending establishment of military bases, whether
You are continuing to serve your sentence BUT you temporary or permanent by the US forces in Subic
continue serving it outside of jail. Olonggapo while we still have this ongoing conflict
with China. They are trying to amend the VFA in
Probation - granted to those who have been convicted in order to allow them entry into the country with their
cases where the penalty is less than 6 years of arms (the US).
imprisonment but it is not up to the President to grant
probation, rather, it is the courts who grant probation. TN that those cases like Bayan v Exec. Secretary,
and that case of Smith - we will tackle that in our
Article VII, Section 20: discussion on transitory provisions.
The President may contract or guarantee foreign TN of the power of the President in his participation
loans on behalf of the Republic of the Philippines in treaty-making. It is the sole power of the
President to ratify a treaty. Not even the SC can
with the prior concurrence of the Monetary Board,
compel the President to submit a treaty to the
and subject to such limitations as may be provided by Senate for concurrence. (Pimentel vs Exec.
law. Secretary)
BAR: This was asked in the Bar Examination on In other words, if the President refuses to submit
guaranteeing of foreign loans in behalf of the Republic of the treaty to the Senate for concurrence, the
the Philippines. This may be delegated to the chairman President cannot be compelled to submit the treaty
of the Bangko Sentral. TN that this does not need the to the Senate. The Senate, even if they concur to
concurrence of the Senate. All that is needed here is the the treaty, if the President refuses to ratify the
concurrence of the Central Monetary Authority (BSP). treaty, the Senate cannot compel the President to
do so because the matter of ratification of a treaty
Article VII, Section 21: is up to the sole discretionary power of the
President.
No treaty or international agreement shall
be valid and effective unless concurred in Q: What other powers does the President have?
by at least two-thirds of all the Members A:
of the Senate. Sec. 22 (Budget)
Section 22. The President shall submit to the
TN: You must note the difference between an Executive Congress, within thirty days from the opening of
Agreement and International Agreement/Treaty. every regular session as the basis of the general
appropriations bill, a budget of expenditures
International Agreement/Treaty - requires and sources of financing, including receipts
concurrence by 2/3 vote of the members of the from existing and proposed revenue measures
Senate in order to validate it. The one who ratifies
the treaty is the President but to bind the public, Section 23 (SONA)
there must be the 2/3 vote of the Senate.
Section 23. The President shall address the
Executive Agreement - does not need the Congress at the opening of its regular session.
concurrence of the Senate. He may also appear before it at any other time.
The President will lay down his programs, what he still subject to review by the Supreme Court which
has achieved, WON he has already complied with means that it can be reversed by the SC. What will
his promise. That is part of the transparency of the bind the whole country or the world insofar as the
government. decision of the court is concerned is the prevailing
principle or jurisprudence is always the deicison of
If you will be asked to cite provisions of the the SC, and not the lower court.
Constitution which promotes transparency, one of
those would be under Section 23 on SONA of the Another point is that, while this is a power enjoyed
President. This is usually the time that he appears be the lower courts, it must be exercised by the
before the Congress to address the Congress, lower courts with utmost prudence and caution
although he may appear any time he wants to because it may cause political unrest resulting from
appear. different interpretations of the laws and the
Constitution.
V. Judicial Department
The Judicial Department is vested with judicial Q: You must also master Judicial Review. What are
power. the requisites?
Q: What does judicial power mean? A: There must be an actual case or controversy
A: The ordinary meaning of judicial power is the raised by the proper party at the earliest
power to settle disputes among parties involving opportunity of time
rights that are legally demandable or enforceable;
simply settling conflicts and controversies. The issue of constitutionality must be the lis mota
of the case.
However, there is the expanded judicial power. The
courts can now determine whether there exists a Q: Who is the proper party?
grave abuse of discretion, amounting to lack or A: One who is directly injured or in the imminent
excess of jurisdiction. This is done by the courts via danger of sustaining injury.
judicial review.
Q: In the ratification of the Constitution as to its
Q:Where is this power vested? validity, who is the proper party?
A: It is vested in one Supreme Court and other A: An ordinary citizen may be the proper party,
such courts as may be established by statutes i.e. even if not directly injured. This is an exception.
Statutory Courts.
Q: What about the factual basis of the declaration
Q: Who exercises judicial power? of Martial Law? Who is the proper party?
A: It is exercised, not only be the Supreme Court, A: Also an ordinary citizen may be a proper party.
but also by the lower courts.
Q: When is the taxpayer considered a proper
Q: Cite provisions in the Constitution which party?
supports the principle that judicial review is not only A:
exercised by the Supreme Court but also by all
other courts. When it involves disbursement of public funds
that is anomalous or contrary to law;
A: misapplication of public funds
Involves imposition of unreasonable taxes. This
Section 1 - It is vested in the SC and the other amounts to deprivation of property without due
statutory courts. process of law.
Section 5 - relating to the review power of the SC of
the session of the lower courts as to the Q: Who else can be a proper party? Can the
constitutionality of laws, treaties, etc. What will the government be a proper party in relation to the
SC review if the courts do not also exercise the validity of its laws?
power in reviewing WON a law or an act is in A: Yes. Case in point - People vs Vera.
consonance of the Constitution?
Q: What about members of Congress, may they be
These two legal provisions arrive at the conclusion a proper party in a question involving the validity of
that even lower courts exercise judicial review. laws?
A: Yes. When they will intrude into the legislative
However, the difference between the SC's judicial prerogative or impairs their discretionary powers, in
review power and that of the lower courts is that the which case they can be a proper party.
lower court's reviews are not final because they are
The bottomline, regardless of whether you have an and yet it will evade any discussion or resolution on the
actual interest in the outcome of the case is what merits of the case.
we call legal standing or locus standi. That's all that
you need. You dont need to have a real right on the So these are the requisites:
outcome of the case. For as long as you have the
legal standing, you can be a proper party. There has to be a blatant violation of the constitution and
However, all this can be set aside by the Supreme a possibility that it will be repeated and yet it will evade
Court at its discretion when the issue raised is of any resolution.
paramount public interest or of transcendental
importance. Take note of this since this is common And finally, that the issue raised is of transcendental
in the bar exams. importance or of paramount public interest.
In all questions regarding constitutionality, you will (TN) Another point on actual case and controversy, that
observe the PDAF cases, the RH law, when there it must be a justiciable question. In other words, it is only
was a question on constitutionality of these laws, involving questions that are based on a law or a
there was always a question on whether the party constitutional provision because if you go into the
who filed the case was a proper party. So, the wisdom of the act complained of, or the reason why the
requirement of the proper party may be set aside law was passed, or its propriety, that is a political
as a mere procedural technicality if the issue raised question beyond the ambit of judicial inquiry, therefore
is of transcendental importance or of paramount should have been answered by makers of the law
public interest. themselves being the representatives of the people, or
the president himself who implements the law. But there
Q:And then there's the requirement of actual case is an exception to this again because even if the issue is
or controversy. What does this mean? political however there is allegation of grave abuse of
A: That by "actual case", it means that the case is discretion amounting to lack or in excess of jurisdiction,
existing until the issue is resolved because it is still the court may look into it by way of exception as part
possible that the controversy is existing at the time of the expanded jurisdiction of the SC.
of filing but becomes moot and academic as the
time lapses or as the circumstances change, in (TN) Another point also, it must be raised at the earliest
which case it will be dismissed because the case opportunity of time.
has become moot and academic.
Q: What is earliest opportunity of time?
In the case of Pormento vs Estrada. A: You have to allege that in the pleading otherwise, if
not alleged, you may not be allowed to raise that for the
Since Estrada was not elected as president, that first time during the trial, or if it is not raised during the
was the change in circumstance. It may have been trial, you may not be allowed to raise that for the first
relevant at the time of filing of his Certificate of time on appeal.
Candidacy for President since he was running for
presidency notwithstanding the fact that he already Exceptions:
served the six-year term as President where the 1. When the issue raised is the jurisdiction-
Constitution provides that he is no longer eligible anytime at any stage of the proceeding
for another election. Instead of discussing the 2. When you cannot resolve the case without first
minutes of the case on the constitutionality, the SC settling the issue of constitutionality in civil cases
said that the case is already moot and academic 3. In criminal cases- anytime because after all,
since Estrada lost the election and thereafter where there is no law punishing the act, no
dismissed the case. I repeat, the controversy must crime is committed. So if the law is nullified, it is
be existing. as if theres no crime committed by the accused.
But even if the issue has become moot and academic,
according to the SC in the case of David et. al. vs. Exec. (TN) And finally, the issue raised must be the lis mota of
Sec.,it is not a mathematical formula that the SC would the case because if it is not, then the court by all means
not just discuss on the merits because it is possible that must use other grounds to dispose of the issue without
it may occur again in the future especially when there is going into the merits of the case in order to maintain the
blatant violation of the constitution and the issue raised equality among the 3 branches and maintain the
is of transcendental importance or of paramount public separation of powers so that one cannot be accused of
interest. If you can recall in the case of the intruding into the prerogative of the 2 other branches of
constitutionality of the declaration of a state of national the government.
emergency, the SC was saying that even if it was lifted
and the issue therefore has become moot and So you take note of those requisites for a valid exercise
academic, nonetheless the SC proceeded in discussing of judicial review because they are repeated in the
the merits of the case because there is always a subsequent and more recent decisions of the SC.
possibility that it will recur, it will be repeated in the future
Q: What would then be the consequences after the

resolution of the case? However, the Supreme Court has provided some
A: It depends on what the resolution is. guidance regarding the issues we have raised. In the en
banc decision in Dulay vs. Judicial and Bar Council and
Q: If the law is valid, what would SC do? Executive Secretary Paquito Ochoa, the Supreme Court
A: Make a double negative declaration- that the law is made two significant rulings. First, the court ruled that
not unconstitutional. In effect legitimating, if not ratifying the most senior justice who is not an applicant for the
the validity of the law. position of chief justice shall "preside over the
proceedings in the absence of the said constitutionally
Or the SC will declare the law to be null and void for named Ex-Officio Chairman." Second, the proposition
being unconstitutional. By that act, through the exercise that the JBC may only be chaired by the incumbent chief
of judicial review, the SC checks. Thats part of the justice is without merit. http://jurist.org/sidebar/2012/07/
checking power of the court over the act of executive
and legislative departments. Either way, the SC will On Section 2, this is with reference to the powers
perform its symbolic function to educate the bench and being vested to the courts by congress
the bar by providing principles, precepts, guidelines on So you have the Rules of Court enumerating the
how the law should be construed or interpreted in actual jurisdiction of court. But take note, in so far as amending
cases. the Rules of Court, that is now exclusive to the SC under
Section 5 as part of its rule-making power. But, in the
Q: (BAR) If the law is declared unconstitutional, what case of Gingoyon v. Republic, the SC was saying that
would be the effect of the declaration of notwithstanding that the SC has the power to amend the
unconstitutionality? Rules of Court, still the power being legislative in nature,
A: What we follow is the modern view. plenary in so far as congress is concerned, it was never
Q: What does it mean? precluded from making a law that will amend Rules of
A: It is valid until declared null and void for being Court. You remember that case involving payment of just
unconstitutional but you have to respect the operative compensation? Because there is definition there in the
effects of this law before the declaration of nullity. Rules of Court particularly Rule 67 on just compensation
determined by the court at 10% of the assessed value of
We have some case on this where SC does not disturb the property for taxation purposes, that was amended by
the effect of the application of the law before the law is R.A. 8974 passed by congress where it was based on
declared unconstitutional. They must be respected. market value or BIR zonal valuation- 100% and not just
10% and it was an amendment of Rules of Court and it
Once declared a nullity, you follow the traditional view. It was questioned, and SC was saying that the congress
is not a law, it creates no rights, imposes no obligations, was never precluded from amending Rules of Court
creates no office and affords no protection. It will be as if although now, that power is govern to the SC
the law has never been passed. Just take note of that promulgating rules governing pleadings and procedures
operative effect principle. Because that was asked in the in the practice of law. You have writ of amparo, writ of
bar exam particularly in the MCQ. habeas data, and writ of kalikasan. You have the judicial
affidavit rule, etc. in effect amending the Rules of Court
As regards to that, read the cases of Dulay vs. JBC, without passing through congress although in Section 2,
Chavez vs. JBC. it should have been congress because it is congress that
vested and prescribed and apportioned jurisdiction on
In checkered contrast, there is essentially no various courts.
interaction between the two Houses in their
participation in the JBC. No mechanism is required On Section 3 on fiscal autonomy
between the Senate and the House of Representatives it is one of the factors that maintain the independence of
in the screening and nomination of judicial officers. SC and there had been so many instances that this
Rather, in the creation of the JBC, the Framers arrived at fiscal autonomy has been challenged by the 2 other
a unique system by adding to the four (4) regular branches in the government.
members, three (3) representatives from the major
branches of government the Chief Justice as ex- Q: What do you mean by fiscal autonomy?
officio Chairman (representing the Judicial Department), A: It means that their budget cannot be reduced by
the Secretary of Justice (representing the Executive congress even if they hate the guts of the justices of the
Department), and a representative of the Congress SC. Whatever is the budget in the last fiscal year, if they
(representing the Legislative Department). will not increase it, they cannot also reduce it. Should
The total is seven (7), not eight. In so providing, the they reduce the budget, automatically the old budget will
Framers simply gave recognition to the Legislature, not be adopted because of fiscal autonomy. They cannot
because it was in the interest of a certain constituency, interfere on how the SC should spend the money
but in reverence to it as a major branch of appropriated for the SC but recently there is a question
government.(Chavez v. Judicial and Bar Council, G.R. regarding on this because there are so many vacancies
No. 202242, April 16, 2013) in the court. At the end of the year, youre supposed to
remit kuno the money that was expended, intended for SC, memorize section 5.
this vacant court to the national treasury. But what did
SC do? Asserting its fiscal autonomy, they put up a SECTION 5. The Supreme Court shall have
separate fund where this savings will go and not to the the following powers:
general fund of the national treasury and thats the start (1) Exercise original jurisdiction over
of the quarrel between the executive department, cases affecting ambassadors, other public
including now the congress, and the SC because the SC
ministers and consuls, and over petitions
was saying, we enjoy fiscal autonomy, ayaw mo
panghilabot in so far as our budget is concerned. Karon for certiorari, prohibition,mandamus, quo
ka, what theyre doing now, ang DBM will not release the warranto, and habeas corpus.
whole budget for the Judiciary. They will wait until you fill (2) Review, revise, reverse, modify, or
up that vacancy then they will release the money. That affirm on appeal or certiorari, as the law or
will be the challenge regarding fiscal autonomy. the Rules of Court may provide, final
judgments and orders of lower courts in:
On section 4, this is with regard to the composition of the
SC. There is 1 chief justice and 14 associate justices. (a) All cases in which the
constitutionality or validity of any treaty,
Q: In case of vacancy, what is the period of filling up?
international or executive agreement, law,
A: 90 days from the occurrence of the vacancy.
presidential decree, proclamation, order,
Q: For vacancy in the lower courts, how should it be instruction, ordinance, or regulation is in
filled up? question.
(b) All cases involving the legality of any
A: Its actually 90 days from the submission of the list of tax, impost, assessment, or toll, or any
names of nominees of JBC reckoned from the penalty imposed in relation thereto.
submission. So it may have been vacant for 20 years, (c) All cases in which the jurisdiction of
but the moment the list is submitted by JBC to any lower court is in issue.
Malacaang, the President has the period of 90 days (d) All criminal cases in which the
from the submission of the list within which to make an
penalty imposed is reclusion perpetua or
appointment. But how come it can go beyond 90 days?
Because it can easily retroact the date of appointment. higher.
(e) All cases in which only an error or
*** Q: What are the cases that are decided by SC sitting question of law is involved.
en banc and sitting in Division? The more important part (3) Assign temporarily judges of lower
there is the sitting en banc. What are the cases? courts to other stations as public interest
A: You have to memorize Section 4 on cases involving may require. Such temporary assignment
constitutionality of treaty or international agreement or shall not exceed six months without the
executive agreement; cases that had been decided by a consent of the judge concerned.
Division and case of modification or reversal; to reverse (4) Order a change of venue or place of
a prevailing principle or jurisprudence; dismissal or fine
trial to avoid a miscarriage of justice.
of a judge or any court personnel for more than 10,000;
when the Division cannot obtain the majority, it has to be (5) Promulgate rules concerning the
transferred to SC siting en banc; where the penalty for protection and enforcement of
the capital offenses Reclusion Perpetua to death. constitutional rights, pleading, practice, and
procedure in all courts, the admission to the
Q: What would be the composition of a Division? practice of law, the Integrated Bar, and
A: It could be a Division of three, five, or eight. So if you legal assistance to the underprivileged.
want to get a majority for very decision, a Division of 3- Such rules shall provide a simplified and
always 3, unanimous. If you cannot get that it will be inexpensive procedure for the speedy
decided by SC sitting en banc. If its a Division of 5- you disposition of cases, shall be uniform for all
should have no less than 3. In the Division of 8- that is 5.
courts of the same grade, and shall not
You should have also at least 3 votes if there is only
quorum of 5. diminish, increase, or modify substantive
rights. Rules of procedure of special courts
Practically most of the cases are decided in division but and quasi-judicial bodies shall remain
there are specific cases however that must be decided effective unless disapproved by the
en banc. You take note of that. Supreme Court.
(6) Appoint all officials and employees of
*** Now the most import part of the judicial department- the Judiciary in accordance with the Civil
Section 5. If you want to know all the powers of Service Law.(1987 Constitution [1987])
Q: In criminal cases where the penalty imposed 1. temporary protection order

is reclusion perpetua, is that automatic reviews 2. inspection order
of SC? 3. production order
A: There is now a circular of SC. It is no longer 4. witness protection order
automatic to sc. It must pass through an intermediate
review by the CA before it goes to the SC. And that is You have also the Writ of Habeas data which is a
declared as constitutional. limitation to the right of information. It is a remedy
available to any person whose right to privacy in life
You have on purely questions of law, also with the SC. liberty or security is violated or threatened by an unlawful
act or omission of a public official or employee or a
The temporary assignment of judges. If its for more than private individual or entity engaging in the gathering,
6 months, you need the consent of the judge. collecting or storing of data or information regarding the
person, family home, correspondence of the aggrieved
On the change of venue, also you must ask permission party (A. M. No. 08-1-16-SC).
from SC. In case of doubt whether it should be granted
or not, it should be decided in favor of the change of Q: If you think that because of some erroneous
venue to avoid miscarriage of justice. information the military is following you because you are
suspected to be a member of the NPA. What do you do?
(BAR) Sec 5(5) on the rule-making power of the SC A: You ask the military to produce the information so
Rules concerning enforcement and protection of that it can be corrected or destroyed if it is totally untrue.
constitutional right, pleading, practice and procedure in You can avail of that by obtaining a writ of habeas data.-
all courts; admission in the practice of law; the Integrated TN
Bar; legal assistance to the underprivileged.
On the power of the Supreme Court to promulgate rules
(BAR) As regards to the protection and enforcement of the only limitation in the promulgation of rules by the
constitutional rights, take note of the writs promulgated Supreme Court is that it shall not diminish, increase or
by SC: writ of amparao, writ of habeas data, writ of modify substantive rights (Sec. 5(5), Art. XVIII,
Kalikasan and other rules and regulation amending the Constitution).
Rules of Court.
Kadagahan na nigawas ang writ of amparo ug writ of Power to Appoint

habeas data. Theyre related to each other but they re
not the same. Also, the Supreme Court has the power to appoint its
own officials and employees in accordance with the Civil
Q: All this in protection of the right to privacy particularly Service Law (Sec. 5(6), Art. XVIII, Constitution). This is
the writ of amparo, what is being protected? to maintain its independence subject to civil service law.
A: Right to life, liberty and security, not property. The
recent decision on the writ of amparo is this: that to The Supreme Court shall have administrative
apply the writ of amparo there must be an element of supervision over all courts and the personnel
government involvement. If there is no government thereof (Sec. 6, Art. VIII).
involvement, although it may also apply to private The administrative supervision of the Supreme Court
entities, but without government involvement, the writ of over judges and court personnel is exclusive. The
amparo is not the proper remedy. Thats the bottom line Ombudsman does not have jurisdiction over judges and
on the recent decision of SC. court personnel because the supervision over them is
exclusive to the Supreme Court.
To give you an example, this is a case involving a
person who was abducted by a security guard of a Q: Can the ombudsman investigate a judge involving a
subdivision. Then he made a complaint to the security criminal case?
guard, it was not acted upon. And then that person A: The Ombudsman has to wait for the recommendation
became missing. So the relatives of this person who was of the Supreme Court to conduct the preliminary
abducted accused the security guard and filed a writ of investigation.
amparo.
Q: In an administrative case?
Q: Will the action prosper? A: It should be dismissed because the Ombudsman has
A: According to the SC, no because the security guards no jurisdiction since the Constitution provides that
are private individuals. No showing that it involves the supervision of judges and court personnel is exclusive to
government or its law enforcers. Here it was dismissed. the Supreme Court. In fact, the President cannot grant
pardon to a judge or court personnel who is convicted.
Q: (TN) What are the remedial or preliminary remedies TN
you may avail of while you are applying for writ amparo?
A:
Section 7. Qualifications. Q: What would the President do if he does not like any
No person shall be appointed Member of the of the nominees in the list? Can he return it to the JBC?
Supreme Court or any lower collegiate court
unless he is a natural-born citizen of the A: No. He has to choose from the list. Otherwise, the
purpose of the JBC to screen applicants for the judiciary,
Philippines. A Member of the Supreme Court
ombudsman and deputy ombudsman would be useless.
must be at least forty years of age, and must have However, the nominees in the list should be at least 3 for
been for fifteen years or more, a judge of a lower every vacancy. The Presidents choice should be limited
court or engaged in the practice of law in the only in the names that were submitted by the JBC.
Philippines.
The Composition of the JBC is shared by the Justice of
The Congress shall prescribe the qualifications of the Supreme Court. Now, there is a controversy
judges of lower courts, but no person may be involving the Chief Justice as chairman of the JBC
appointed judge thereof unless he is a citizen of because the SOLGEN applied for the Supreme Court as
the Philippines and a member of the Philippine Justice. Now, he wants the Chief Justice to inhibit in
participating because according to him the Chief Justice
Bar.
had already made statements against him. The thing is it
is chaired by the Chief Justice of the Supreme Court.
A Member of the Judiciary must be a person of TN
proven competence, integrity, probity, and
independence. - TN It is also composed of ex-officio members and regular
members. In Chavez v. JBC, there is a controversy
Q: What is the qualification for a member of the judiciary because supposedly each branch of the government
that is not required in ordinary employees in the should be represented in the JBC. For the executive
government? department, it is the DOJ secretary. For Congress they
must also have a representative. But Congress have two
A: He must be a person of proven competence, integrity (2) representatives, 1 in the Senate and 1 in the House
and independence. (BAR) of Representatives while the Constitution is very clear
that it should only be A REPRESENTATIVE- singular.
(BAR) Section 8. Composition of the Judicial and Back then, it was alright to have two representatives for
Bar Council Congress because each representative will be entitled to
A Judicial and Bar Council is hereby created vote. But in has been the practice to accord each
under the supervision of the Supreme Court representative 1 full vote. Thus, it is unfair on the part of
composed of the Chief Justice as ex officio the other branches of the government and there is no
Chairman, the Secretary of Justice, and a more equality among the three branches of the
representative of the Congress as ex officio government.
Members, a representative of the Integrated
Section 9. The Members of the Supreme Court and
Bar, a professor of law, a retired Member of
judges of lower courts shall be appointed by the
the Supreme Court, and a representative of
President from a list of at least three nominees
the private sector.
preferred by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation.
The regular members of the Council shall be
(Self-Explanatory). The Salary of the justices and judges
appointed by the President for a term of four is fixed by law.
years with the consent of the Commission on
Appointments. Of the Members first Section 11 Retirement Age
appointed, the representative of the The retirement age is 70 years old but we are given an
Integrated Bar shall serve for four years, the option to retire at 60 or 65.
professor of law for three years, the retired
Justice for two years, and the representative The Supreme Court Justices enjoy security of tenure
of the private sector for one year. which means that they cannot be removed in any other
XXX XXX XXX manner except on impeachment.
XXX XXX XXX
Q: Can you sue a justice of the Supreme Court involving
The Council shall have the principal function a criminal case?
of recommending appointees to the judiciary. A: You cannot. Not even a disbarment case against
It may exercise such other functions and them because it is a circumvention of the Constitution.
duties as the Supreme Court may assign to it. 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.
constitutional requirements of Section 14, Article VIII;

Section 12. The Members of the Supreme Court and they merely hold that the petition for review should not
of other courts established by law shall not be be entertained and even ordinary lawyers have all this
designated to any agency performing quasi-judicial time so understood it; and the petition to review the
or administrative function. decision of the Court of Appeals is not a matter of right
but of sound judicial discretion, hence there is no need
In Macalintal v. PET, the Supreme Court acted as the to fully explain the Court's denial since, for one thing, the
Presidential Electoral Tribunal (PET). There was a facts and the law are already mentioned in
question of constitutionality on the creation of the PET the Court of Appeals' decision. This was reiterated
because according to Macalintal by being a member of in Que vs. People, et al., and further clarified
PET, in effect, the Supreme Court performs a quasi- in Munal vs. Commission on Audit, et al. that the
judicial function. But the Supreme Court said that the constitutional mandate is applicable only in cases
PET does not perform quasi-judicial functions but judicial "submitted for decision," i.e., given due course and after
functions. the filing of briefs or memoranda and/or other pleadings,
but not where the petition is refused due course, with the
Q: What are the two exceptions of Section 12? resolution therefor stating the legal basis thereof. Thus,
A: Justices of the Supreme Court appointed to the when the Court, after deliberating on a petition and
Presidential Electoral Tribunal and the Chief Justice as subsequent pleadings, decides to deny due course to
the chairman of the JBC. the petition and states that the questions raised are
factual or there is no reversible error in the
Section 13 Procedure in the making Decisions. respondent court's decision, there is sufficient
There must be a deliberation either in en banc or compliance with the constitutional
division. Usually, the decision is written by the most requirement.||| (Komatsu Industries (Phils.), Inc. v. Court
junior Justice. There is a certification that will be made of Appeals, G.R. No. 127682, April 24, 1998) HDATCc
by the Chief Justice to the effect that whatever decision
may have been reached is a result of consultation and The grant of due course to a petition for review is not a
concurrence of the majority of the Supreme Court. If matter of right, but of sound judicial discretion. Thus,
there is no certification, it will not affect the validity of the when the Court denies due course to a petition because
decision. it fails to show any reversible error committed by the
Court of Appeals (CA), there is no need to fully explain
Section 14. SC Decisions the Court's denial. For one thing, the facts and law are
No decision shall be rendered by any court without already discussed in the CA's opinion. A minute
expressing therein clearly and distinctly the facts and the resolution denying a petition for review of a decision of
law on which it is based. This is mandatory. However, the CA can only mean that the Supreme Court agrees
the exception to this is cases on certiorari or petition for with or adopts the findings and conclusions of the CA,
review filed before the Supreme Court. The Supreme and deems the CA decision as correct.
Court can issue a 1 page minute resolution dismissing We reiterate that a "resolution" is not a "decision" within
the petition for lack of merit. This is an exception the constitutional requirement of Section 14, Article VIII.
because a petition for certiorari is not a matter of right. It The constitutional mandate is applicable only in cases
is merely a privilege. The Supreme Court has the "submitted for decision", i.e., where the petition is given
discretion either to give due course or not to the petition. due course and after the filing of briefs or memoranda
If the Supreme Court denies the petition, it is in effect and/or other pleadings, but not where the petition is
adopted the decision in toto of the lower court. However, denied due course, with the resolution stating the legal
if the Supreme Court gives due course to the petition basis thereof.
and dismisses it thereafter the Supreme Court has to In Candelaria v. CA, we held that a resolution denying a
comply now with Section 14. (BAR) petition for review on certiorari actually states the legal
basis therefor, which is that the petition failed to
Section 15. Resolution of Cases. sufficiently show that the appellate court committed any
This is mandatory because a judge can be sanctioned or reversible error in the challenged decision. The patent
punished for non-observance of the prescribed period. It significance of such ground for denial is that the
is, however, directory in the sense that even if the allegations of the petition aimed at proving errors in the
judgment is rendered beyond the prescribed period the challenged decision failed to persuade the Supreme
decision remains valid. Court that the imputed errors had been committed and,
thus, there was no cause to reverse or modify the
Cases relating to the Judiciary conclusions set forth in the decision. In such case, there
1.CONSTITUTIONAL LAW; SUPREME COURT; is no point in reproducing or restating in the resolution of
"RESOLUTIONS" ARE NOT "DECISIONS"; denial the conclusions of the appellate court thereby
CONSTITUTIONAL MANDATE NOT APPLICABLE TO affirmed.| (Joaquin-Agregado v. Yamat, G.R. No.
RESOLUTIONS. As early as Novino, et
181107, March 30, 2009)
al. vs. Court of Appeals, et al., it has been stressed that
these "resolutions" are not "decisions" within the
VI. Constitutional Commissions Villar's promotional appointment, so it is argued,

On constitutional commissions, you have three: is void from the start, constituting as it did a
COMELEC, Civil Service and Commission on Audit. reappointment enjoined by the Constitution, since it
actually needed another appointment to a different office
TN Safeguards to the Independence of the and requiring another confirmation by
Constitutional Commissions the Commission on Appointments.
Central to the adjudication of the instant petition
1. First of all, theyre created by the Constitution is the correct meaning to be given to Sec. 1 (2), Article
therefore they cannot be abolished by ordinary IX (D) of the Constitution on the ban against
legislation. Theyre considered to be independent, and reappointment in relation to the appointment issued to
therefore cannot be controlled by the three branches of respondent Villar to the position of COA Chairman.
government. Each constitutional commission is Without question, the parties have presented
conferred with powers that cannot be reduced or two (2) contrasting and conflicting positions. Petitioner
diminished by ordinary legislation to maintain their contends that Villar's appointment is proscribed by the
independence. Likewise, always remember that they are constitutional ban on reappointment under the aforecited
removable only through impeachment. constitutional provision. On the other hand, respondent
TN of the term of office of the commissioners. Villar initially asserted that his appointment as COA
Chairman is valid up to February 2, 2015 pursuant to the
2. It is 7 years without re-appointment. We have the same provision.
scheme to have continuity in their term of office. We The Court finds petitioner's position bereft of
have the staggered appointment the first appointment merit. The flaw lies in regarding the word
to each commission 7, 5, 3 years. "reappointment" as, in context, embracing any and all
species of appointment. XXX XXX
It says without re-appointment. The term applies only to In conclusion, there is nothing in Sec. 1 (2), Article IX (D)
regular appointments of a commissioner (TN). So that if that explicitly precludes a promotional appointment from
he is appointed in a recess session, so its by a recess Commissioner to Chairman, provided it is made under
appointment such as that case of Benipayo, then- the aforestated circumstances or conditions.||| ||| (Funa
chairman of the COMELEC before, during the time of v. Villar, G.R. No. 192791, April 24, 2012)
Arroyo. He was appointed when the Commission on
Appointments was in recess. And so it was a recess Q: What were the circumstances in that appointment?
appointment. The appointment though was permanent,
because it was effective immediately upon Qualification This also further explained the nature of the appointment
of Benipayo, because it was not however confirmed by and the term of office of a commissioner because this
CA upon its resumption of its session in effect it was applies not only to COA but to all commissioners. In this
bypassed, so it lasted only until the next adjournment of particular case, Villar had been appointed as a member
session of Congress. So when the term of Benipayo of the COA. However, he didnt finish his term he
then expired, he was again re-appointed by Arroyo to the resigned. And then, he was appointed thereafter as
same position, thus the Question now on constitutionality
chairman of COA, when the Chairman retired.
of the re-appointment. Remember the case of Matibag v.
Benipayo. When the chairman retired and the question on wether
Q: What did SC say on the matter? Was there a violation or not he is qualified for appointment, wherein it was
of the constitution by the re-appointment of Benipayo? practically a re-appointment this time as chairman of
COA. The Supreme Court in this case said that for as
A: The SC was saying that: That provision against re- long as he did not finish his term, because he did not
appointment applies only to regular appointment by the finished as he resigned. He may be appointed to the
President that would reQuire confirmation by the CA commission as chairman, provided, that there is a
(TN). vacancy caused by death or resignation or removal of
that previous chariman whose term has not been
Theres a recent decision of the SC related to it as well. completed. So that he can only be appointed and
Remember the case of Funa, involving the appointment assume office of the un-expired portion of the term of
of Villar as the Chairman of the Commission on Audit. office of his predecessor.
Petitioner now asseverates the view that Sec. 1 (2), Art.
TN It says here, the appoinment of the members of any
IX (D) of the 1987 Constitution proscribes reappointment
of the 3 Constitutional Commissions after the expiration
of any kind within the commission, the point being that a
of the un-even terms of office of the first set of the
second appointment, be it for the same position
commissioner will always be a fixed term of seven years.
(commissioner to another position of commissioner) or
An appopintment for a lesser period is void and
upgraded position (commissioner to chairperson) is a
unconstitutional. The appointing officer cannot validly
prohibited reappointment and is a nullity ab initio.
shorten the full term of seven years in case of the
Attention is drawn in this regard to the Court's
expiration of the term as this will result in the distortion of
disposition in Matibag v. Benipayo.
the rotational system prescribed by the Constituion.
A: They are fixed by law and they cannot be decreased

Q: What is this Rotational System of the Term of during their term. May be increased but cannot be
Office of the commissioners? (BAR) decreased.
A: Where if one of the commissioners term of office
expires there will be always two others who are left. Q: How do the Constitutional Commissions enjoy fiscal
There cannot be any vacancy that would occur in the autonomy?
commission in the event one of the commissioners term A: Their budget cannot be reduced lower than they are
of office expires. presently enjoying. So that in the event that their budget
for the next fiscal year is reduced, automatically that is
SC was saying here that appointments to vacancies void, automatically the budget of the previous year shall
resulting from certain causes like death, resignation, be reenacted.
disability or impeachment shall only be for the unexpired
portion of the tem of office of the predecessors. Such Q: Can the ConComs pass their own rules and
appointement cannot be less than the unexpired portion regulations? What are the limitations?
as this will distrupt the staggering of the terms lay down A: They also can promulgate their own rules and
under SEC. 1 PAR. 2 of ART. IX. Members of the regulations for as long as it will not diminish decrease or
commission are appointed for the full term of seven modify substantive rights. This is without prejudice of
years and who served the entire period are BARred course to the Supreme Courts power to promulgate
from re-appointemnt to any position in the commission. rules and regulations governing pleadings and
The commissioner in this case, Villar, who resigned after procedures in court.
being in the commission for less than seven years is
eligible for appointment to the position of the Chair for Q: In cases of conflict, whose rules should prevail?
the unexpired portion of the term of the departing chair. A: There is this one case where the COMELEC
Such appoinment is not covered by the ban on re promulgated a rule governing their procedure, however,
appoinment provided the that the aggregate period of affecting the rules promulgated by the SC governing
length of service as commissoner in the unexpired procedures in courts. So in cases of conflict, always the
period of the term of office of the predecessor will not rules promulgated by the SC shall prevail because that
exceed seven years and provided further, the vacancy is exclusive to the Supreme Court if this will affect
position of the chair resulted from death, resignation, procedures in court.
disablity or impeachment and any member of the
commission cannot be appointed or designated in Q: What rules govern in appointing the officials and
temporary or acting capacity. In this case, Villar served employees of ConComs?
for only 3 years so he has then remaining four years at A: It must be in accordance with the civil service law to
the time he resigned. Thereafter, he was appointed as maintain their independence.
chairman of COA when the chairman of COA at that
time, also resigned. Q: How many votes are needed in decision making?
A: It has to be majority of all the members of the
Q: Was the appointment of Villar to the chairmanship commission.
valid considering that it was a re-appoinment but this TN: A commission that has only three commissioners,
time as chairman? always unanimous.
A: SC was saying that he is eligible provided that it will TN: For the COMELEC, we will have a majority of seven.
not exceed seven years. So if he already served 3 years, But in adjudicatory cases, when they decide the case on
he has 4 more years to serve. In this case, the term of merits, it is always decided by a division, so still
the predecessor chairman, the remaining term was only unanimous three.
3 years also so he could not ecxeed the unexpired
portion of his predecessor. In other words, while he is Q: When a decision decided by a COMELEC division is
eligible for appoinment, his term should not ,in total, unfavorable, cann you go directly to the SC?
what he had served before he resigned and now his new A: No. the Motion for Reconsideration must be decided
appoinment be more than seven years. And should not first by the COMELEC en banc because of the
also exceed the term of the remaining portion of the term requirement of the constitution that only decisions en
of his predecessor. He can assume the unexpired but banc of the commissions can be appealed directly to the
not more than seven years. TN of that. Also being SC. They are also required to decide cases within 60
empahized in this case that being appointed, days from the submission of the case for decision or
resolution.
Q: Can there be appointment in acting or temporary
capacity? Q: Where do you appeal the decisions of the
A: No. It should be permanent. This is to guarantee the COMELEC, COA and the Civil Service?
independence of the Constitutional commissions.
Q: Can the salaries of the Chairmen and Commissioners

be decreased? Increased?
A: Except for the Civil Service, COA and COMELEC law, rules and regulations; and controversies arising
decisions are appealable directly to the SC on certiorari from or connected with that employment are not
under rule 65 of the Rules of Court and it should be cognizable by the National Labor Relations Commission.
within 60 days from the receipt of decision of the 2.ID.; ID.; ID.; INCLUDES CONTRACTUAL
judgment of the tribunal. EMPLOYEES OF GOVERNMENT-OWNED OR
CONTROLLED CORPORATION. The argument of
CSC the Labor Arbiter that it is only disputes between
the MWSS and its regular employees that are beyond
Q: What about Civil Service Commission? the jurisdiction of the NLRC, not those between it and its
A: There is SC circular that you have to pass through CA "non-regular or contractual" employees, is sophistical.
first before you go to the SC. That is under Rule 43 of There is no legal or logical justification for such a
the ROC. distinction. Indeed, it is ruled out by the fact that
positions in the civil service are classified
TN: Qualifications of the commissions. into career and non-career service, and that the non-
career service includes inter alia ". . . Contractual
There are only 3 - one chairman and two members. This personnel or those whose employment in the
is important - Section 2, you should know the scope of government is in accordance with a special contract to
the Civil Service covered by its jurisdiction. undertake a specific work or job, requiring special of
technical skills not available in the employing agency, to
Q: What is within the jurisdiction of the Civil Service be accomplished within a specific period, which in no
Commission? case shall exceed one year, and performs or
A: All branches, subdivisions, instrumentalities and accomplishes the specific work of job, under his own
agencies of the Government, including government- responsibility with a minimum of direction and
owned and controlled corporations with original charters supervision from the hiring agency."
[Sec. 2(1), Art. IX-B,Constitution]. ||| (MWSS v. Hernandez, G.R. No. 71818, August 19,
1986)
Q: What do you mean by original charters?
A: Original charter means that the GOCC was created Question [student]: Who determines if it is a GOCC?
by a special law by congress.
Those without original charters are those created by the A: It is governed by the law that created it. It is in the
corporation code, it is not under the Civil Service. They law.
are not subject to the Civil Service Commission. So they So if it is created by a special law or charter, it is a
are considered as an ordinary corporation. GOCC. So even if created by a general law, it is covered
As to the previously GOCCs, when they are later by the Corporation Code, that is not under the civil
privatized, they cease to be under the Civil Service. service law. You would note that it is in the charter itself.
Question by Luj (regarding Red Cross)
TN of the cases regarding the scope of the Civil Service A: It is a private corporation. It renders only public
Commission. service. That is not under civil service. That was the
[BAR] TN Q: Are water districts under the Civil Service case of Liban v. Gordon. The most recent one, the
Law? Supreme Court said, it is private. It is only that they
render public service. It is not part of the Government of
A: Water districts are under the Civil Service. the Philippines, not a corporation of the Philippines.
That was settled. [Judge was talking about the 2009
TN: MWSS v. Hernandez, G.R. No. 71818, August 19, case, theres a recent 2011 resolution on this case]
1986if one is employed in a GOCC whether or not
regular, the Civil Service Law applies. So it is not true [Based on the above, the sui generis status of the PNRC
either that with respect to money claims, the Labor Code is now sufficiently established. Although it is neither a
applies. In this case, since the employment or claim of subdivision, agency, or instrumentality of the
an employee in a GOCC with an original charter is government, nor a government-owned or -controlled
governed and covered by the Civil Service Law. corporation or a subsidiary thereof, as succinctly
explained in the Decision of July 15, 2009, so much so
1.CONSTITUTIONAL LAW; CIVIL SERVICE LAW; that respondent, under the Decision, was correctly
GOVERNS EMPLOYEES OF GOVERNMENT-OWNED allowed to hold his position as Chairman thereof
OR CONTROLLED CORPORATION. Republic Act concurrently while he served as a Senator, such a
No. 6234created it as a "government corporation to be conclusion does not ipso facto imply that the PNRC is a
known as the Metropolitan Waterworks and Sewerage "private corporation" within the contemplation of the
System." As in the case of the National Housing provision of the Constitution, that must be organized
Authority, therefore, employment in the MWSS is under the Corporation Code. As correctly mentioned by
governed not by the Labor Code but by the civil service Justice Roberto A. Abad, the sui generis character of
PNRC requires us to approach controversies involving definitively settled the same issue in Civil Service
the PNRC on a case-to-case basis.||| (Liban v. Gordon, Commission v. Salas, to wit: . . . we approve the more
G.R. No. 175352, January 18, 2011) Caveat: It was not logical interpretation advanced by the CSC to the effect
discussed in the case the implications on the jurisdiction that "Section 16 of P.D. 1869 insofar as it
of employment disputes with such pronouncement as sui exempts PAGCOR positions from the provisions of Civil
generis corporation] Service Law and Rules has been amended, modified or
deemed repealed by the 1987
Constitution and Executive Order No.
TN: The different kinds of positions in Civil Service. The 292 (Administrative Code of 1987). However, the same
Competitive and Non-Competitive. So this is relevant cannot be said with respect to the last portion of Section
also when you are ask about administrative laws. 16 which provides that "all employees of the casino and
So basically kung competitive, the entry in the related services shall be classified as 'confidential'
government is based usually in merit and fiTNess appointees." Justice Regalado's incisive discourse yields
determined through competitive examinations. While three (3) important points: first, the classification of a
non-competitive, it does not require civil service particular position as primarily confidential, policy-
eligibility. determining or highly technical amounts to no more than
an executive or legislative declaration that is not
There are three kinds of non-competitive: Policy- conclusive upon the courts, the true test being the nature
determining, Primarily Confidential and Highly Technical. of the position. Second, whether primarily confidential,
policy-determining or highly technical, the exemption
Policy-determining - it is the government that provided in the Charter pertains to exemption from
formulates the method of action; what is the policy that competitive examination to determine merit and fiTNess
you have been appointed to in which case that would not to enter the civil service. Such employees are still
require any eligibility. protected by the mantle of security of tenure. Last, and
more to the point, Section 16 of P.D. 1869, insofar as it
Primarily Confidential - because the relationship is
declares all positions within PAGCOR as primarily
based on trust and confidence with the appointing
confidential, is not absolutely binding on the courts.
authority. Ex: Executive Assistants, Executive
3.ID.; ID.; CASINO OPERATIONS MANAGER, NOT
Secretaries. But PAGCOR, as it was settled in one case,
PRIMARILY CONFIDENTIAL. Respondent's duties
the employees, while it is true that they are supposedly
and responsibilities call for a great measure of both
working in confidence because they are trying to protect
ability and dependability. They can hardly be
their clients, diba? The deckers and managers in the
characterized as routinary, for he is required to exercise
casino, while their operations may be confidential for
supervisory, recommendatory and disciplinary powers
security reasons, Supreme Court was saying that it was
with a wide latitude of authority. His duties differ
not a confidential position and therefore they are not
markedly from those we previously ruled as not primarily
covered under this non-competitive but competitive
confidential. In this sense, he is a tier above the ordinary
position.
rank-and-file in that his appointment to the position
Highly Technical - that is also non-competitive because entails faith and confidence in his competence to
that would be based on skills, not on a civil service perform his assigned tasks. Lacking, therefore, is that
eligibility. amplitude of confidence reposed in him by the
appointing power so as to qualify his position as
(TN) Q: What would then be the test whether one is primarily confidential. I
competitive or non-competitive? ||| (PAGCOR v. Rilloraza, G.R. No. 141141, June 25,
A: It will be based on the nature of the responsibilities; 2001)
not the administrative or legislative description given to
it. That was in the case of PAGCOR, take note of that. Q: This competitive or non-competitive, do they enjoy
security of tenure?
2.ADMINISTRATIVE LAW; P.D. NO. 1869; SECTION 16 A: Definitely. They only differ in the manner in which
THEREOF CLASSIFIES ALL EMPLOYEES OF THE they are filled out as regards to qualifications or
CASINO AND RELATED SERVICES AS requirements.
"CONFIDENTIAL" APPOINTEES; CLASSIFICATION,
NOT BINDING ON COURTS. Petitioner argues that Q: You know already who provides or prescribes the
pursuant to Section 16 of Presidential Decree No. 1869, qualifications?
respondent is a primarily confidential employee. Hence, A: Its always by the law.
he holds office at the pleasure of the appointing power
and may be removed upon the cessation of confidence Q: And what is the role of the Civil Service Commission
in him by the latter. Such would not amount to a removal with respect to appointments?
but only the expiration of his term. However, there A: Only to attest whether this particular appointee or
should be no lingering doubt as to the true import of said nominee has the minimum qualifications described by
Section 16 of P.D. No. 1869. We have already law. So once it is found that the qualifications are
complied with, what they can only do is to attest to the
validity or the eligibility of the appointee. Its not for them Service Law providing for the process. It also
to decide who is more qualified among the appointees. presupposes that even if there is a basis for your
That discretion is still left to the appointing authority. In removal, you cannot just be outrightly removed without
other words, the Civil Service cannot add qualifications hearing. So there is always due process both substantial
other than those provided by law. and
Q: Another point which is asked in Administrative Law

relating to the Civil Service is on the Next-in-Rank ***** What is important is you have to have the
Policy. Is this mandatory? necessary qualifications to the position and eligibility.
A: No. While the person next-in-rank is entitled to
Even if you have the qualification but not the eligibility,
preferential consideration, it does not follow that only he
there is no guarantee that you will stay in that position
and no one else can be appointed. In other words, still it
under the principle of security of tenure. That is not the
is within the discretion of the appointing officer or
authority to choose from among the candidates. What is kind of security of tenure we are referring to.
required by law is that the appointee has complied with
For example: youre a lawyer occupying a position as
the minimum qualifications prescribed by law.
director of the LTO. There is now a requirement of
CESO Carrier executive eligibility. You may have the
Another classification of position is - according to
best qualifications that are required but it also requires
Tenure: you have Career service and Non-career this particular eligibility. If you dont have that you can
service. The other one is Competitive and Non- always be removed or transferred and security of tenure
competitive. This one is now on tenure, career or non-
cannot be invoked. Same applies for the reverse, no
career.
qualification but has the eligibility.
Career service is usually based on merit and fiTNess to In other words, the qualifications and requisite
be determined as far as practicable by competitive eligibility must concur.
examinations based on technical qualifications; whereas
in Non-career, entrance is based on other than usual TN: Achacoso v Macaraig (BAR)
test of merit and fiTNess. Lets say for example, elective
positions are non-career. Usually the executive officers 1.CONSTITUTIONAL LAW; BILL OF RIGHTS;
of government or those even rank-and-file but based on SECURITY OF TENURE; PERMANENT
civil service eligibility, thats considered as career, when APPOINTMENT ISSUED ONLY TO PERSONS
there is room for promotion. When you are elected as QUALIFIED. A permanent appointment can be issued
BARangay captain, theres no way that you would be only "to a person who meets all the requirements for the
promoted as governor if you dont run as governor. position to which he is being appointed, including the
appropriate eligibility prescribed."
Q: For career, they are entitled to security. What about 2.ID.; ID.; ID.; PERSONS APPOINTED WITHOUT THE
non-career? Like if you are an elected official, what is REQUISITE QUALIFICATION DEEMED IN ACTING
your security of tenure? CAPACITY. The mere fact that a position belongs to
A: It is limited only, during the period of your term of the Career Service does not automatically confer
office. If you are, for example, a confidential employee, security of tenure on its occupant even if he does not
like you are an executive assistant, yours is only co- possess the required qualifications. Such right will have
terminus to the appointing authority. Once your to depend on the nature of his appointment, which in
appointing authority is dismissed, its good as you are turn depends on his eligibility or lack of it. A person who
already also dismissed; or once the term of office of the does not have the requisite qualifications for the position
appointing authority has already expired, your term also cannot be appointed to it in the first place or, only as an
is good as expired. Or limited to the duration of a exception to the rule, may be appointed to it merely in an
particular project for which purpose the employment was acting capacity in the absence of appropriate eligibles.
made. So once the project is completed, youre done. 3.ID.; ID.; ID.; TEMPORARY APPOINTMENT;
PURPOSE. The purpose of an acting or temporary
(BAR) Q: What is favored in the BAR exam is this appointment is to prevent a hiatus in the discharge of
doctrine and principle of Security of Tenure. Do you what official functions by authorizing a person to discharge the
this security of tenure is? same pending the selection of a permanent or another
A: Its that you cannot be removed from office without appointee.
just cause provided by law. All government officials and 4.ID.; ID.; ID.; ID.; CONDITION IMPOSED ON
employees as a rule enjoy security of tenure. APPOINTEE. The person named in an acting
capacity accepts the position under the condition that he
(TN) But take note, when you say you can only be shall surrender the office once he is called upon to do so
removed for legal cause provided by law, it must be by the appointing authority.
related to and affects the administration of office. It must 5.ID.; ID.; ID.; EXPIRATION OF TERM; METHOD OF
be substantial, directly affecting the rights and interests TERMINATING TEMPORARY EMPLOYMENT. In
of the public. Of course, you always have the Civil these circumstances, the acting appointee is separated
by a method of terminating official relations known in the Otherwise, appointment is void; there is no expectation
law of public officers as expiration of the term. His term of security of tenure.
is understood at the outset as without any fixity and
enduring at the pleasure of the appointing authority. Q: How about temporary employees, are they covered
When required to relinquish his office, he cannot by the? Are they protected by the security of tenure?
complain that he is being removed in violation of his
security of tenure because removal imports the A: No. In fact, even if the appointing authority does not
separation of the incumbent before the expiration of his give any reason simply does not want or like the way the
term. This is allowed by the Constitution only when it is employees must adhere that could be a ground for his
for cause as provided by law. The acting appointee is removal. He does not have to explain because a
separated precisely because his term has expired. temporary employee does not enjoy security of tenure.
Expiration of the term is not covered by the constitutional He can be removed anytime even without cause. So, if
provision on security of tenure. they are dismissed, it just simply an expiration of their
6.ID.; ID.; ID.; LUEGO CASE (143 SCRA 327) NOT term.
APPLICABLE TO CASE AT BAR. The case of
Luego v. Civil Service Commission is not applicable Another prohibition if you are an employee in the
because the facts of that case are different. The government, you cannot engage directly or indirectly in
petitioner in Luego was qualified and was extended political partisanship or electioneering political activity
a permanent appointment that could not be withdrawn (TN)
on the ground that it was merely temporary. In the
Q: And then on the matter of, can you organize a union
case at BAR, the petitioner was not eligible and
or association to protect your economic interest? (BAR)
therefore could be appointed at best only in a
temporary capacity. The other cases he cites, viz. A: There is no prohibition against joining a union. It is not
Pamantasan ng Lungsod ng Maynila v. Intermediate prohibited under the constitution.
Appellate Court, Palma-Fernandez v. De la Paz, and
Dario v. Mison, are also not pertinent because they What is, however, prohibited by statutes not by the
also involved permanent appointees who could not be constitution is the right to strike because after all,
removed because of their security of tenure. according to the SC, in many cases, the right to strike
||| (Achacoso v. Macaraig, G.R. No. 93023, March 13, does not formally integral part of the right to association.
1991) You can always have an association or organization
A permanent appointment can be issued only to a even without engaging in concerted activities.
person who meets all the requirements for the position to
which he is being appointed, including the appropriate So we have statutes, executive order, there is the Civil
eligibility prescribed. Service Memorandum prohibiting the employees
engaging in concerted activities.
The mere fact that a position belongs to the Career
Service does not automatically confer security of tenure Another thing to (TN), losing candidate. Political laying
on its occupant even if he does not possess the required ducks are prohibited. They are disqualified for
qualifications. Such right will have to depend on the appointments within 1 year from the election that he
nature of appointment which interdepends on his loss. (TN)
eligibility or lack of it.
Elective official are not eligible for appointment in any
(BAR) capacity to any public office or position during their
tenure. They may accept it, however they have to resign
Q: Is there security of tenure for non-competitive from their local position. And thats why we need to
positions? amend this provision in order to totally ban elective
officials from appointment so that they cannot just leave
A: Yes, however, limited. Even non-career. Confidential their office and accept an appointment, that would not be
employees hold office only as long as confidence remain fair to their constituents. But her it is allowed provided
in them. that he resigns or he forfeits his elective position. Now,
the exception to the appointment to any other positions
In other words, if the appointing authority loses
in the government is when you are appointed, you have
confidence, then he is fired. This shall not be taken as
an appointment now regular, you can be appointed to
dismissal but as an expiration of term. For there must be
another position but it must be in ex officio capacity. Like
a genuine loss of confidence, there is no removal. Non-
the President that you selected is also appointed as the
career employees do not enjoy security of tenure.
chairman chief of the national housing corporation and
Political appointees in the Foreign Service possess authority or a congressman sitting as member of the
tenure, coterminous with the appointing authority or JBC.
subject to his pleasure. So, there has to be a valid
TN on civil service with respect to suspension and
appointment in order to enjoy security of tenure.
dismissal in relation to security of tenure, i.e., the
entitlement to reinstatement with backpay; if reinstated, exercised the functions of Director II and Manila
would he be entitled to backpay: Information and Liaisoning Officer at MSU as early as
June 1995 after the MSU Board of Regents approved
Q: For example, hes under preventive suspension for her permanent appointment which was issued earlier on
three months, then he was exonerated, can he recover 10 April 1995. It cannot be refuted that in September
his salary for the period of his preventive suspension? 1998 she was terminated from the service on the alleged
A: Generally, for as long as its legitimate, we follow the ground of expiration of her term and stopped from
principle no work, no pay; unless it is expressly provided performing the functions of her position, and
in the constitution that he is entitled to payment of subsequently reinstated to her job upon the declaration
backpay during the period he was placed under of the CSC that her dismissal from the service was
preventive suspension. illegal. Clearly, the CSC gravely erred when thereafter it
ruled that respondent did not actually assume and
If it is suspension as a penalty or even dismissal from perform the duties of her position so as to deprive her of
the service, this does not apply. back wages and other benefits. In Gabriel v.
Domingo this Court held that an illegally dismissed
Q: If in the event, in an appealed case, he is reinstated government employee who is later ordered reinstated is
because he is found to be innocent, is he entitled to entitled to back wages and other monetary benefits from
backpay? the time of his illegal dismissal up to his reinstatement.
A: General rule still appliesno work, no payunless This is only fair and sensible because an employee who
the dismissal or suspension is illegal. is reinstated after having been illegally dismissed is
TN: case of DOTC v Cruz G.R. No. 178256 July 23, considered as not having left his office and should be
2008 the SC follows as a precedent, DOTC did not effect given a comparable compensation at the time of his
Cruz's termination with bad faith and, reinstatement. Respondent cannot be faulted for her
consequently, no backwages can be awarded in his inability to work or to render any service from the time
favor. she was illegally dismissed up to the time of her
reinstatement. The policy of "no work, no pay" cannot be
In all these cases, the suspensions and/or applied to her, for such distressing state of affairs was
dismissals were held unjustified, the therein not of her own making or liking even as her family
petitioners having been either exonerated from suffered tremendously as a consequence of her removal
the charges-bases of suspension or dismissal or and while she was jobless. Verily, to withhold her back
were victims of proscribed abolition of office or salaries and other benefits during her illegal dismissal
issuance of appointment to a different position would put to naught the constitutional guarantee of
which soon after resulted in dismissal therefrom. security of tenure for those in the civil service.
That the DOTC's termination of [Mamaril's] 9.ID.; ID.; ID.; THE STATE UNIVERSITY CANNOT BE
services in accordance with the August 20, 2001 MADE TO PAY ALL ACCRUING BACK SALARIES AND
Resolution of the CSC was not attended with OTHER BENEFITS IN FAVOR OF RESPONDENT; THE
bad faith and/or grave abuse of discretion, it SUPERIOR OFFICERS FOUND TO BE IN BAD FAITH
cannot, under the facts and circumstances of the OR HAVE ACTED WITH PERSONAL MALICE WILL BE
case, be gainsaid. HELD PERSONALLY ACCOUNTABLE. We also
||| (Department of Transportation and agree with the Court of Appeals that MSU cannot be
Communications v. Cruz, G.R. No. 178256, made to pay all accruing back salaries and other
July 23, 2008) benefits in favor of respondent. There are allegations to
the effect that officials of MSU disobeyed in bad faith the
But if it is illegal, like in David v Gania G.R. No. writ of execution issued by the CSC. In Gabriel v.
156039. August 14, 2003 a civil service employee who Domingo we held that if the illegal dismissal; including
has been found illegally dismissed or suspended is the refusal to reinstate an employee after a finding of
entitled to be reinstated and to backwages and other unlawful termination, is found to have been made in bad
monetary benefits from the time of his illegal dismissal or faith or due to personal malice of the superior officers
suspension up to his retirement. If he is already of then they will be held personally accountable for the
retirement age, he is entitled not only to backwages, but employee's back salaries; otherwise, the government
also to full retirement benefits. disburses funds to answer for such arbitrary dismissal.
This rule is also enunciated in Secs. 38 and 39 of Book
8.ID.; ID.; ID.; THE CIVIL SERVICE COMMISSION 1, E.O. 292, and in Secs. 53, 55, 56 and 58 of Rule XIV
GRAVELY ERRED WHEN IT RULED, DESPITE THE of the Omnibus Civil Service Rules and Regulations.
PRESENCE OF SUBSTANTIAL EVIDENCE THAT ||| (Constantino-David v. Pangandaman-Gania, G.R. No.
RESPONDENT DID NOT ACTUALLY ASSUME AND 156039, August 14, 2003)
PERFORM THE DUTIES OF HER POSITION SO AS
TO DEPRIVE HER OF BACKWAGES AND OTHER I was talking about compensation earlier; double
BENEFITS. There is more than substantial evidence compensation is prohibited, but
in the record consisting of the general payroll and TN/Q: if you have retired already from the government
attendance sheets to prove that petitioner assumed and service and youre receiving pension, and you're re-
employed by the government, this time can you receive or negotiate with the appropriate government agencies
the salary from your current employment with for the improvement of those which are not fixed by law.
government after retirement, considering that youre 3.ID.; CIVIL SERVICE; SOCIAL SECURITY SYSTEM
receiving pension? EMPLOYEES ARE PART THEREOF AND COVERED
BY MEMORANDUM PROHIBITING STRIKES. SSS
A/TN: Yes. Pension is different from salary. Santos v employees are part of the civil service and are covered
CA G.R. No. 139792. November 22, 2000 SC said that by the Civil Service Commission's memorandum
double compensation is not applicable to pension. A prohibiting strikes.
retiree receiving pension or gratuity can continue to 4.LABOR AND SOCIAL LEGISLATION; EXECUTIVE
receive such pension or gratuity even if he accepts ORDER NO. 180; ALLOWS GOVERNMENT
another government position to which another EMPLOYEES TO NEGOTIATE WHERE TERMS AND
compensation is attached. CONDITIONS OF EMPLOYMENT ARE NOT AMONG
THOSE FIXED BY LAW. E.O. No. 180 which
2.ID.; ID.; ID.; DOUBLE COMPENSATION, CONCEPT; provides guidelines for the exercise of the right to
A RETIREE RECEIVING PENSION OR GRATUITY organize of government employees, allows negotiation
CAN CONTINUE TO RECEIVE IT EVEN IF HE where the terms and conditions of employment involved
ACCEPTS ANOTHER GOVERNMENT POSITION TO are not among those fixed by law.
WHICH ANOTHER COMPENSATION IS ATTACHED. 5.ID.; ID.; TERMS AND CONDITIONS OF
The petitioner cannot take refuge under the second EMPLOYMENT IN GOVERNMENT ARE GOVERNED
paragraph of Section 8 of Article IX-B of the Constitution, BY LAW; EMPLOYEES SHALL NOT STRIKE TO
which provides: Pensions or gratuities shall not be SECURE CHANGES. Section 4, Rule III of the Rules
considered as additional, double, or indirect and Regulations to Govern the Exercise of the Right of
compensation. This provision simply means that a Government Employees to Self-Organization, which took
retiree receiving pension or gratuity can continue to effect after the instant dispute arose, "[t]he terms and
receive such pension or gratuity even if he accepts conditions of employment in the government, including
another government position to which another any political subdivision or instrumentality thereof and
government position to which another compensation is government-owned and controlled corporations with
attached. Indeed, the retirement benefits which petitioner original charters are governed by law and employees
had received or has been receiving under R.A. No. 910, therein shall not strike for the purpose of securing
as amended, do not constitute double compensation. He changes thereof."
could continue receiving the same even if after his ||| (SSS Employees Ass'n. v. Court of Appeals, G.R. No.
retirement he had been receiving salary from the defunct 85279, July 28, 1989)
MMA as Director III thereof. This is but just because said
retirement benefits are rewards for his services as MeTC Kindly check again, we were discussing about judicial
Judge, while his salary was his compensation for his review on judicial powers, we mentioned about operative
services as Director III of the MMA.||| (Santos v. Court of fact doctrine as a consequence of a law that was
Appeals, G.R. No. 139792, November 22, 2000) declared unconstitutional
Earlier I was saying that the holding of strike is We follow the modern view. It is valid until it is declared
prohibited, a nullity. However, you cannot just simply ignore the
TN/BAR: SSS Employees Association v CA G.R. No. effects of the law while it was still being enforced. It may
85279 July 28, 1989 while the Constitution and the affect substantive rights if you will also nullify those acts
Labor Code are silent as to whether government as a consequence of the declaration of
employees have the right to strike, they are prohibited unconstitutionality of the law or of the act of government.
from striking, by express provision of Memorandum You TN of this Operative Fact Doctrine because that
Circular No. 6 series of 1997 of the Civil Service was emphasized in the recent DAP case.
Commission and as implied in E.O. No. 180.
As already mentioned, the implementation of the DAP
1.ADMINISTRATIVE LAW; CIVIL SERVICE; resulted into the use of savings pooled by the Executive
PROHIBITION TO GOVERNMENT EMPLOYEES to finance the PAPs that were not covered in the GAA,
FROM STRIKING. While the Constitution and the or that did not have proper appropriation covers, as well
Labor Code are silent as to whether or not government as to augment items pertaining to other departments of
employees may strike, they are prohibited from striking, the Government in clear violation of the Constitution. To
by express provision of Memorandum Circular No. 6 declare the implementation of the DAP unconstitutional
series of 1987 of the Civil Service Commission and as without recognizing that its prior implementation
implied in E.O. No. 180. constituted an operative fact that produced
2.ID.; ID.; ID.; REMEDIES IN LIEU OF RIGHT TO consequences in the real as well as juristic worlds of the
STRIKE. Government employees may, therefore, Government and the Nation is to be impractical and
through their unions or associations, either petition the unfair. Unless the doctrine is held to apply, the Executive
Congress for the betterment of the terms and conditions as the disburser and the offices under it and elsewhere
of employment which are within the ambit of legislation as the recipients could be required to undo everything
that they had implemented in good faith under the DAP. You have to make then a distinction as to the declaration
That scenario would be enormously burdensome for the of unconstitutionality following the principle of the
Government. Equity alleviates such burden. Operative Fact Doctrine. Again, what was emphasized
The other side of the coin is that it has been by the Supreme Court is that this only applies to the
adequately shown as to be beyond debate that the projects as recipients of the disbursement of the funds,
implementation of the DAP yielded undeniably positive but cannot apply as to liability if theres any for those
results that enhanced the economic welfare of the government officials. Just TN of that.
country. To count the positive results may be impossible,
but the visible ones, like public infrastructure, could COMELEC
easily include roads, bridges, homes for the homeless,
hospitals, classrooms and the like. Not to apply the Q: Can they issue writs of certiorari, prohibition and
doctrine of operative fact to the DAP could literally cause mandamus?
the physical undoing of such worthy results by
destruction, and would result in most undesirable A: Answer is yes, but only in aid of their appellate
wastefulness. jurisdiction. Lets go into the powers of the COMELEC
Nonetheless, as Justice Brion has pointed out during the guys. This will be discussed in detail in your Election
deliberations, the doctrine of operative fact does not Laws, so Im not going to deal so much on that. Well just
always apply, and is not always the consequence of go to provisions that are mentioned in the Constitution.
every declaration of constitutional invalidity. It can be Now lets go directly to Section 2, on powers and
invoked only in situations where the nullification of the functions. Enforce and administer all regulations relative
effects of what used to be a valid law would result in to the conduct of an election, plebiscite, initiative,
inequity and injustice; but where no such result would referendum and recall. You must know the meanings of
ensue, the general rule that an unconstitutional law is these terms.
totally ineffective should apply. EIaDHS
*****Q: Okay, so they have exclusive original jurisdiction
In that context, as Justice Brion has clarified, the
over all contests relating to what? Election returns and
doctrine of operative fact can apply only to the PAPs
qualifications of all elective officials coming from the
(Programs, Activities and Projects) that can no longer
regional, provincial and city officials. Lets now go to the
be undone, and whose beneficiaries relied in good faith
jurisdiction of the COMELEC? Have you mastered this?
on the validity of the DAP, but cannot apply to the
Election contests involving barangay officials, where do
authors, proponents and implementors of the DAP,
you file your election protest or Quo Warranto Petition?
unless there are concrete findings of good faith in their
A: You file it with the MTC or the City Courts that has
favor by the proper tribunals determining their criminal,
jurisdiction.
civil, administrative and other liabilities.
||| (Araullo v. Aquino, III, G.R. No. 209287, July 01,
*****Q: If the decision is rendered by the MTC, you are
2014)
aggrieved, where do you appeal?
As we have explained before, it was declared A: You dont appeal to the RTC. You appeal directly to
unconstitutional, and we have expected that because the COMELEC. MTC to COMELEC.
number one, it violated Section 25 paragraph 5 thereof,
where the transfer of savings was violated in this *****Q: If the decision is rendered by the COMELEC,
particular case because they did not follow what savings where do you appeal?
means. Apparently, they get the unobligated funds of the A: You cannot appeal anymore. The decision is Final
different departments and impound them, did not spend and Executory.
them, and at the middle of the year, they were then
taken by the President and classified them as savings. Unless there is an allegation of grave abuse of discretion
And then the same is thereafter transferred to other amounting to lack or in excess of jurisdiction, then you
offices, other than the executive department like COA, can go directly to the Supreme Court on Certiorari.
the Autonomous Region of Cordillera, members of However, on the condition precedent to that you have to
Congress likewise were also benefited from it. There file a Motion for Reconsideration because decisions
was a violation of cross border here as regards the election cases that are adjudicatory in nature are only
transfer of appropriation and it was without the aid of the decided by the COMLEC by division and under the
appropriation law because they simply got it from the Constitution, only the decisions of the Constitutional
savings and allocate them to projects as it may be Commissions en banc are appealable to the Supreme
desired by the President. Court on Certiorari.
The Supreme Court was saying that under the Operative *****Q: What about election contests involving municipal
Fact Doctrine, it will not affect the projects, but this does officials, where do you file?
not apply to the persons responsible for the illegal acts A: File it with the RTC.
of transferring these funds from the executive
department into other offices of government other than *****Q: If you lose the case in RTC, where do you
the executive department. appeal?
A: You go to the COMELEC.

In the same vein, to withhold from the
*****Q: And if you still lose the case in the COMELEC, COMELEC the power to punish individuals who refuse to
where do you go? appear during a fact-finding investigation, despite a
A: Nowhere. Because decision of the COMELEC is final previous notice and order to attend, would render
and executory, unless you allege grave abuse of nugatory the COMELEC's investigative power, which is
discretion amounting to lack or in excess of jurisdiction. an essential incident to its constitutional mandate to
secure the conduct of honest and credible elections. In
*****Q: If it involves City Officials or Provincial Officials, this case, the purpose of the investigation was however
where do you file? derailed when petitioner obstinately refused to appear
A: You file directly with the COMELEC. Original during said hearings and to answer questions regarding
Jurisdiction. the various election documents which, he claimed, were
stolen while they were in his possession and custody.
Q: If you lose the case in the COMELEC, where do you Undoubtedly, the COMELEC could punish petitioner for
appeal? such contumacious refusal to attend the Task Force
A: You appeal to the Supreme Court on Certiorari, as a hearings.
matter of right. Even assuming arguendo that the COMELEC
was acting as a board of canvassers at that time it
In other words, COMELEC has only appellate jurisdiction required petitioner to appear before it, the Court had the
involving Barangay and Municipal Elective Officials. And occasion to rule that the powers of the board of
their decisions are Final and Executory. canvassers are not purely ministerial. The board
exercises quasi-judicial functions, such as the function
Q: Does COMELEC have contempt powers? and duty to determine whether the papers transmitted to
A: Yes, but only in relation to its Quasi-Adjudicatory or them are genuine election returns signed by the proper
Quasi-Judicial Function. It cannot exercise this in officers. When the results of the elections in the
connection which is purely executive or ministerial province of Maguindanao were being canvassed,
functions. counsels for various candidates posited numerous
questions on the certificates of canvass brought before
TN In a pre-proclamation controversy, the COMELEC the COMELEC. The COMELEC asked petitioner to
exercises Quasi-Judicial and Administrative Powers. Its appear before it in order to shed light on the issue of
jurisdiction over Election Contest is in exercise of its whether the election documents coming from
Judicial Functions. Maguindanao were spurious or not. When petitioner
unjustifiably refused to appear, COMELEC undeniably
TN Bedol Case. acted within the bounds of its jurisdiction when it issued
Do you know where Bedol now is? He is now a the assailed resolutions.
classmate of the Senators at the PNP Custodial Center ||| (Bedol v. COMELEC, G.R. No. 179830, December 03,
(laughs) You know what happened to that Bedol? 2009)
[Provincial COMELEC Maguindanao Chief]. He was
asked to submit all Election Returns, sa Maguindanao So what happened here with Bedol.
bah, involving the Election of Senators where Zubiri was
proclaimed as the Elected Senator, last Senator. And The Supreme Court here was saying that the Task-
Pimental was saying, No, he was cheated. And Pimentel Force-Maguindanao Fact-Finding-Investigation was
wanted to know where are the Election Returns so that created for the purpose of probing into the veracity of the
they would be able to know if what was indicated therein alleged fraud that marred the elections in the Province of
are correct. What happened? Bedol did not appear. He Maguindanao and consequently, to determine whether
said he lost all the Election Returns. Gi Magic. So he the certificates of canvass were genuine or spurious and
was cited for Contempt. whether an election offense had possibly been
committed could by no means be classified as purely
He was saying, You cannot cite me for Contempt ministerial or administrative function.
because that was an exercise of Administrative
Functions of the COMELEC, when he was ordered and So since it is not a ministerial or administrative function,
summoned to appear before COMELEC and bring all the it was a quasi-judicial function according to the Comelec.
Election Returns and Paraphernalia.What did the It was just right for the Comelec to sight this Atty. Bedol
Supreme Court say in this case of Bedol? Ngano na in contempt. So the Comelec from the Task-Force-
priso naman na siya karon? Maguindanao (TF) was exercising its quasi-judicial
power in pursuit of the truth behind the allegations of
The Supreme Court said the COMELEC possess the massive fraud during the elections in Maguindanao; to
power to conduct investigation as an adjuct to its achieve its objective the TF conducted hearings and
constitutional duty to enforce and administer all Election required the attendance of the parties concerned,
Laws, by virtue of the explicit provisions of the including Bedol, and the counsels to give them the
Constitution. opportunity argue and support their respective positions.
Task Force Maguindanao's fact-finding investigation election. Although the legislature, under the Omnibus
to probe into the veracity of the alleged fraud that marred Election Code (Batas Pambansa Bilang [BP] 881), has
the elections in said province; and consequently, to granted the COMELEC the power to postpone elections
determine whether the certificates of canvass were to another date, this power is confined to the specific
genuine or spurious, and whether an election offense terms and circumstances provided for in the law. XXX
had possibly been committed could by no means be XXX XXX
classified as a purely ministerial or administrative
function. As we have previously observed in our assailed
The COMELEC, through the Task Force Maguindanao, decision, both Section 5 and Section 6 of BP
was exercising its quasi-judicial power in pursuit of the 881 address instances where elections have already
truth behind the allegations of massive fraud during the been scheduled to take place but do not occur or had to
elections in Maguindanao. To achieve its objective, the be suspended
Task Force conducted hearings and required the because of unexpected and unforeseen circumstances
attendance of the parties concerned and their counsels ,such as violence, fraud, terrorism, and other analogous
to give them the opportunity to argue and support their circumstances.
respective positions.
||| (Bedol v. COMELEC, G.R. No. 179830, December 03, In contrast, the ARMM elections were postponed by
2009) law, in furtherance of the constitutional
mandate of synchronization of national and local
elections. Obviously, this does not fall under any of the
So when Bedol therefore was cited for contempt, it was circumstances contemplated by Section 5 or Section
an exercise of its quasi-judicial power; because of his 6 of BP 881.
contumacious refusal to attend the TF hearings thus he
was arrested. Here, as you would note, to withhold, More importantly, RA No. 10153 has already fixed the
according to the Supreme Court, from the Comelec the date for the next ARMM elections and the COMELEC
power to punish individual who refuse to appear in a has no authority to set a different election date.
fact-finding investigation despite previous notice in order
to attend would render nugatory the Comelecs Even assuming that the COMELEC has the authority to
investigative power which is an essential incident to its hold special elections, and this Court can compel the
constitutional mandate to secure the conduct of honest COMELEC to do so, there is still the problem of having
and credible elections; in this case, the purpose however to shorten the terms of the newly elected officials in
of the investigation was derailed when Bedol obstinately order to synchronize the ARMM elections with the May
refuse to appear during said hearings in order to answer 2013 national and local elections. Obviously, neither the
questions regarding the various elections documents Court nor the COMELEC has the authority to do this,
which he claimed was stolen when they were in his amounting as it does to an amendment of Section 8,
possession and custody. The issue then of Pimentel vs. Article X of the Constitution, which limits the term of local
Zubiri was mooted by Zubiris resignation and so officials to three years.
Pimentel then took over the remaining term of office of ||| (Abas Kida v. Senate of the Phils., G.R. No. 196271,
Senator Zubiri. 196305, 197221, 197280, 197282, 197392, 197454,
February 28, 2012)
Q: Does this include the setting the date of the So again
elections? Do they have the power to set the date of
elections? Q: Does the Comelec have the power to postpone and
set the date of elections, or if not does the Congress
A. Answer is NO. have the power to extend the term of office of these local
Take note of the case of Maguindanao Federation of elective officials in ARMM?
Autonomous Irrigators Association Inc. (represented
by Abas Kida) et. al vs. The Senate. Remember that These were the issues in the case of Maguindanao
the terms of office of the officials of the ARMM had Federation.
already expired; because of the situation in the
Maguindanao, they wanted to postpone the elections, A. TN -The Supreme Court said, the power to fix the
and in effect, by postponing it what would happen is date of the elections is essentially legislative in nature as
Comelec would be extending the term of office of the evident from and exemplified by Section 8, Article VI,
incumbents. and also Section 4, par. 3 of Article VII.
Neither do we find any merit in the contention that the So, it is not for the Comelec but it is for the Congress.
Commission on Elections (COMELEC) is sufficiently Nonetheless, it was also emphasized in the
empowered to set the date of special elections in the Maguindanao case that while it is Congress that fixes
ARMM. To recall, the Constitution has merely the date of elections, it cannot extend the term of office
empowered the COMELEC to enforce and administer all because in effect that will amend the Constitution. The
laws and regulations relative to the conduct of an Constitution is very clear on the term of office.
In the meantime where there cannot be an election other LP officers to issue certificates of nomination for
because of the circumstances candidates to local elective posts. In simple terms, it is
the LP president who certifies the official standard
Q: Who has the power then to fill the vacancy because bearer of the party.
the term had already expired and so vacancy had The law also grants a registered political party certain
occurred? There cannot be an extension by the rights and privileges that will redound to the benefit of its
Congress because in effect that would violate the official candidates. It imposes, too, legal obligations
Constitution. upon registered political parties that have to be carried
A. It is then for the President, having the supervision out through their leaders. The resolution of the
over the Local Government Units, to appoint an officer- leadership issue is thus particularly significant in
in-charge in the meantime until elections shall be held. ensuring the peaceful and orderly conduct of the
elections.
TN Sema vs COMELEC ||| (Atienza v. COMELEC, G.R. No. 188920, February
Supreme Court said that the COMELEC does not have 16, 2010)
the requisite power to call elections as the same is part
of the plenary legislative power. Supreme Court said, reiterating the case of LDP vs
COMELEC, the COMELEC has jurisdiction to decide
Q: Does the COMELEC have jurisdiction to determine questions of leadership within a party and to ascertain its
leadership of or the election in political parties? Do they legitimate officers and leaders. The COMELEC is
have the power to intervene? For example in the LP endowed with wherewithal" and "considerable latitude in
case there was a question of leadership, during the time adopting means and methods that will ensure the
of Arroyo, between Atienza and Drilon. They had their accomplishment of the great objectives for which it was
sets of officers elected as officers of LP. They were created to promote free, orderly and honest elections.
questioning the validity of the election of Drilon and
others. Atienza filed at COMELEC. Does COMELEC Q: What about disciplining members? Does COMELEC
have jurisdiction over the controversy involving have jurisdiction over the controversy? As a
leadership of a political party? consequence of the case involving LP, Atienza was
hereinafter removed/expelled as a member of LP.
A: Yes. The political partys identity is crucial here. Its Atienza complained and went to the COMELEC. Does
accreditation is with the COMELEC. So in as much as COMELEC have jurisdiction?
this would involve leadership affecting the political party
itself, it is within the jurisdiction of the COMELEC to A: No. This is under the jurisdiction of the political party.
settle the controversy. It is within the discretion of the political party.
While the question of party leadership has implications
The COMELEC's jurisdiction over intra-party disputes is on the COMELECs performance of its functions under
limited. It does not have blanket authority to resolve any Section 2, Article IX-C of the Constitution, the same
and all controversies involving political parties. Political cannot be said of the issue pertaining to Atienza, et al.s
parties are generally free to conduct their activities expulsion from the LP. Such expulsion is, for the
without interference from the state. The COMELEC may moment, an issue of party membership and discipline, in
intervene in disputes internal to a party only when which the COMELEC cannot intervene, given the limited
necessary to the discharge of its constitutional functions. scope of its power over political parties
The COMELEC's jurisdiction over intra-party leadership
disputes has already been settled by the Court. The TN
Court ruled in Kalaw v. Commission on Elections that Limkaichong vs COMELEC
the COMELEC's powers and functions under Section 2, Case regarding the proclamation of the winners,
Article IX-C of the Constitution, "include the notwithstanding the pendency of disqualification cases
ascertainment of the identity of the political party and its against them. This is allowed pursuant to Resolution No.
legitimate officers responsible for its acts." The Court 8062, issued by the COMELEC in the exercise of its
also declared in another case that the COMELEC's quasi-legislative function.
power to register political parties necessarily involved
the determination of the persons who must act on its Registration of political parties, TN of RA7491. --TN
behalf. Thus, the COMELEC may resolve an intra-party
leadership dispute, in a proper case brought before it, as Q: What are political parties that cannot be accredited in
an incident of its power to register political parties. order to participate in the party list system? TN
The validity of respondent Roxas' election as LP A: (1)It is a religious sect or denomination,
president is a leadership issue that the COMELEC had organization or association organized for
to settle. Under the amended LP Constitution, the LP religious purposes;
president is the issuing authority for certificates of (2)It advocates violence or unlawful means
nomination of party candidates for all national elective to seek its goal;
positions. It is also the LP president who can authorize (3)It is a foreign party or organization;
(4)It is receiving support from any foreign applicable by analogy or in a suppletory character and
government, foreign political party, effect.
foundation, organization, whether directly Batul also clearly shows that the judgments which may
or through any of its officers or members be executed pending appeal need not be only those
or indirectly through third parties for rendered by the trial court, but by the COMELEC as well.
partisan election purposes; cdtai It stated, thus:
(5)It violates or fails to comply with laws, It is true that present election laws are
rules or regulations relating to elections; silent on the remedy of execution
(6)It declares untruthful statements in its pending appeal in election contests.
petition; However,
(7)It has ceased to exist for at least one (1) neither Ramas nor Santosdeclared
year; or that such remedy is exclusive to
(8)It fails to participate in the last two (2) election contests involving elective
preceding elections or fails to obtain at barangay and municipal officials as
least two per centum (2%) of the votes argued by Batul. Section 2 allowing
cast under the party-list system in the two execution pending appeal in the
(2) preceding elections for the discretion of the court applies in a
constituency in which it has registered. suppletory manner to election cases,
||| (Party-List System Act, REPUBLIC ACT NO. 7941 including those involving city and
[1995]) provincial officials.
Batul is different from this case in that in Batul the
On the rules of procedure they are promulgated by the decision subject of the order of immediate execution was
COMELEC. rendered by the poll body in the exercise of its original
jurisdictionwhile the decision in this case was
The thing you should TN is on decision making, kung promulgated in the exercise of its appellate jurisdiction.
purely administrative it is always decided by the Still, there is no reason to dispose of this petition in a
COMELEC en banc, meaning 7 of them, pero kung manner different from Batul. The public policy underlying
Adjudicatory powers, it is always decided in division. So the suppletory application of Sec. 2(a), Rule 39 is to
kung in Division, and its say for example you file a case obviate a hollow victory for the duly elected candidate as
in a division and it was dismissed outright, determined by either the courts or the
COMELEC. Towards that end, we have consistently
Q: Can you directly go to the supreme court on employed liberal construction of procedural rules in
certiorari? election cases to the end that the will of the people in the
A: No. you have to file an MR for the purpose of having it choice of public officers may not be defeated by mere
resolved by the COMELEC en banc TN technical objections. Balajonda's argument is anchored
on a simplistic, literalist reading of Sec. 2(a), Rule 39
The only exception: Where the COMELEC may call that barely makes sense, especially in the light of the
adjudicatory. Adjudicatory gani means division gyud na. COMELEC's specialized and expansive role in relation
The only exception here is when the Comelec en banc to election cases.
may directly assume over to a petition to correct ||| (Balajonda v. COMELEC, G.R. No. 166032, February
manifest errors in the tallying of results by the board of 28, 2005)
canvassers. Direcho na en banc, di na mu agi og
division. Q: unsay election period?
A: Art 11 Sec 9.
Q: Can the COMELEC execute its own judgment? It commences 90 days before the date of the election
A: YES. They can issue a writ of execution. Balajonda v. and 30 days thereafter unless the COMELEC fixes
another period. Election period applies even, it could be
COMELEC TN
lesser, it could be shorter but generally it is 90 days, 30
Early last year, the Court, through Mr. Justice Antonio T. days and this applies to plebiscites and referendum as
Carpio in Batul v. Bayron, affirmed a similar order of the well not just election of officers.
COMELEC First Division directing the immediate
execution of its own judgment. Despite the silence of the Another thing is on grant of pardon as one of the
COMELEC Rules of Procedure as to the procedure of exceptions where the president cannot unless there is a
the issuance of a writ of execution pending appeal, there favorable recommendation from the COMELEC.
is no reason to dispute the COMELEC's authority to do
so, considering that the suppletory application of the Q: What is your political party system?
Rules of Court is expressly authorized by Section 1, A: Its free and open, its multi - party. We dont have
Rule 41 of the COMELEC Rules of Procedure which two-party system here.
provides that absent any applicable provisions therein
the pertinent provisions of the Rules of Court shall be Q: Is Block Voting allowed?
A: Prohibited
Q: Can they be compelled to do pre-audit?

COMISSION ON AUDIT A: No. (See case citation)
Section II on the powers of the commission audit. So pre-audit is discretionary, only when the internal
Examine audit and settle accounts pertaining to revenue
system of a department has failed or is inadequate.
and receipts of funds or property or expenditures or uses
of funds.
However, the audit that they do is not exclusive to
Recent decision on audit COA. This was emphasized in the case of DBP,
that a private accounting firm may also be hired by
There are 2 kinds audit: the Government to do the accounting and audit,
1. post audit especially when the funds subject of the audit is
2. pre-audit borrowed money from an international bank where
it is required (because they do not trust the
The provision didnt mention about pre-audit, only Government, much less the COA to do the audit).
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 The thing is, the audit is not exclusive to COA. In
of their audit-- that is discretionary of COA. this case of DBP vs. COA,
TNrecent decision of the Supreme Court relating to 2.CONSTITUTIONAL LAW; COMMISSION ON

audit AUDIT; POWER THEREOF TO EXAMINE AND
AUDIT IS NON-EXCLUSIVE. The clear and
Most recent case: Dela Llana v. Chairperson of COA unmistakable conclusion from a reading of the
Petitioner's allegations find no support in the entire Section 2, Article IX-D of the 1987
aforequoted Constitutional provision. There is nothing in Constitution, is that the COA's power to examine
the said provision that requires the COA to conduct a
and audit is non-exclusive. On the other hand,
pre-audit of all government transactions and for all
government agencies. The only clear reference to a pre- theCOA's authority to define the scope of its audit,
audit requirement is found in Section 2, paragraph 1, promulgate auditing rules and regulations, and
which provides that a post-audit is mandated for certain disallow unnecessary expenditures is exclusive.
government or private entities with state subsidy or Moreover, as the constitutionally mandated auditor
equity and only when the internal control system of of all government agencies, the COA's findings and
anaudited entity is inadequate. In such a situation, the conclusions necessarily prevail over those of
COA may adopt measures, including a temporary or private auditors, at least insofar as government
special pre-audit, to correct the deficiencies. agencies and officials are concerned. The
Hence, the conduct of a pre-audit is not a superiority or preponderance of the COA audit over
mandatory duty that this Court may compel the COA to
private audit can be gleaned from the records of the
perform. This discretion on its part is in line with the
constitutional pronouncement that the COA has the Constitutional Commission. . . . The findings and
exclusive authority to define the scope of its audit and conclusions of the private auditor may guide private
examination. When the language of the law is clear and investors or creditors who require such private
explicit, there is no room for interpretation, only audit. Government agencies and officials, however,
application. Neither can the scope of the provision be remain bound by the findings and conclusions of
unduly enlarged by this Court. the COA, whether the matter falls under the first or
||| (Dela Llana v. Chairperson of COA, G.R. No. 180989, second paragraph of Section 2, unless of course
February 07, 2012) such findings and conclusions are modified or
reversed by the courts. The power of the COA to
Supreme Court said:
examine and audit government agencies, while
There is nothing in the provision that requires COA to
conduct a pre-audit because you know the controversy non-exclusive, cannot be taken away from
relating to the PDAF and all; it was always involving the COA. Section 3, Article IX-D of the Constitution
COA because apparently what COA did was to only mandates that: "Sec. 3. No law shall be passed
make special audit. exempting any entity of the Government or its
subsidiary in any guise whatsoever, or any
investment of public funds, from the jurisdiction of
Apparently what COA did was only to make special the Commission on Audit." The mere fact that
audit. Because there is no pre-audit, they do so private auditors may audit government agencies
only after the expenditure is made. That is post- does not divest the COA of its power to examine
audit. and audit the same government agencies.
The COA is neither by-passed nor ignored since on Audit shall have the power, authority and duty to
even with a private audit the COA will still conduct examine, audit, and settle all accounts pertaining to
its usual examination and audit, and its findings and the revenues and receipts of, and expenditures or
conclusions will still bind government agencies and uses of funds and property, owned or held in trust
their officials. A concurrent private audit poses no by or pertaining to, the Government, or any of its
danger whatsoever of public funds or assets subdivisions, agencies or instrumentalities,
escaping the usual scrutiny of a COA audit. including government-owned or controlled
Manifestly, the express language of the corporation with original charters, and on a post-
Constitution, and the clear intent of its framers, audit basis . . . (d) such non-governmental entities
point to only one indubitable conclusion receiving subsidy or equity directly or indirectly from
the COA does not have the exclusive power to or through the Government which are required by
examine and audit government agencies. The law or the granting institution to submit to such
framers of the Constitution were fully aware of the audit as a condition of subsidy or equity." The
needs to allow independent private audit of certain Constitution formally embodies the long established
government agencies in addition to the COA audit, rule that private entities who handle government
as when there is a private investment in a funds or subsidies in trust may be examined or
government-controlled corporation, or when a audited in their handling of said funds by
government corporation is privatized or publicly government auditors.(Blue Bar Coconut Phil. v.
listed, or as in the case at bar when the Tantuico, Jr., G.R. No. L-47051, July 29, 1988)
government borrows money from abroad.||| (DBP
v. COA, G.R. No. 88435, January 16, 2002) Corporations covered by COAs auditing powers
are not limited to GOCCs. Where a private
Supreme Court said that the mere fact that these corporation or entity handles public funds, it falls
private auditors may audit Government agencies do under COAs jurisdiction.
not divest COA of its power to examine and audit
the same agencies. Nonetheless, the intent of the TN, they only have jurisdiction over liquidated
framers of the Constitution point to one indubitable funds. So if the funds are still unliquidated, you can
proposition, that COA does not have the exclusive still go to court to contest it because they are civil
power to examine and audit Government agencies. liabilities. The amount is not yet actually
The only thing that is exclusive to them is to determined, COA has no jurisdiction.
determine the scope of their audit and their system
of audit. But the conduct of the audit itself is not They only audit liquidated funds. So kung unliquidated
exclusive. pa cya, jurisdiction is with the court, not with COA.
Q: Who can be audited by COA? Q [student]: Can you increase the functions of COA
A: All government agencies. (widen scope of audit)?
Q: What about private agencies? Can they be A: Yes. Section 8, common to all, each commission shall
audited by COA? perform such other functions as may be provided by law
A: Yes, if they are holding Government funds or so it may be increased. But not diminish their functions
though.
property. We have the case of Blue Bar Coconut
Philippines vs Tantuico Jr.: XII. Local Governments
Local governments would be, HOT ISSUE WHEN YOU
3.CONSTITUTIONAL LAW; COMMISSION ON TAKE THE BAR EXAM, because of the operation of the
AUDIT; JURISDICTION; SECTION 2(1), ART. IX- BANGSA MORO, political entity.
D, PHILIPPINE CONSTITUTION; AUTHORITY TO
EXAMINE AND AUDIT FUNDS INCLUDES SUCH Q: So as now under the constitution, what are the
territorial and political subdivisions mentioned?
NON-GOVERNMENTAL ENTITIES RECEIVING
A: Provinces, cities, municipalities, and barangays. It
SUBSIDY OR EQUITY FROM THE didnt say BANGSAMORO. It says however, there
GOVERNMENT. The petitioners also question should be Autonomous Regions in Muslim Mindanao
the respondents' authority to audit them. They and in Cordillera. So it will then be considered as an
contend that they are outside the ambit of Autonomous Region rather than a sub state. It must be
respondents' "audit" power which is confined to within the framework on the provision to the constitution
government-owned or controlled corporations. This otherwise, magkamali sila. While they may not describe
argument has no merit. Section 2 (1) of Article IX-D it as a sub state, but virtually it is as such, not an
of the Constitution provides that "The Commission
autonomous region in Muslim Mindanao. Then that

would be contrary to section 1. And this is self-executing. PPA is subject to tax. Because while they are rendering
public service, the property is owned in their proprietary
Q:They enjoy local autonomy, but that autonomy does capacity.
not mean what?
A: Independence from the national government. So we GSIS is subject to tax. Accdg to the SC, unless it is
have several decisions on this. Still we have a unitary exempt! Because under the LGC, they (LGU) are
system of government. These local governments do not authorized to tax them. And so because of that decision
enjoy the same power as that of the national against GSIS, the law of GSIS was amended expressly
government. And there is more to decentralization of authorizing their exemption from taxation of local taxes.
administration or devolution of services rather than
transfer of powers. So you should know, well, you will Q: In case of doubt whether an entity is subject to local
have a separate subject for local government. tax or not, how do you resolve the doubt?
A: Against the local taxing authority. Meaning, it is
These are the only things you should TN, for purposes of exempt from taxation
the BAR relating to local governments, this pertains to,
ang importante ani. Sec. 6 Internal Revenue Allotment.
Q: Who has control over local governments? That is automatically released. The amount is to be
A: Its congress. Through a law, Local government code determined by Congress, subject to the availability of
RA 7160. And the president has only supervision. funds.
Q: What is the difference between control and What is subject to the discretion of Congress is only the
supervision? amount. But as to its released, once it is determined, it
A: Control is when the head of office or the superior can should be automatically released.
even change the decision of the subordinate and replace
it with his decision. Supervision, its only monitoring to Sec. 7
make sure that the government officials act in
accordance with law. He cannot change or modify the TN The case involving Palawan and the Malampaya.
decision of a subordinate because its only supervision. DOE doesnt share with the Palawan province. SC
upheld the right of the Palawan Province of an equitable
Now, TN of section 5 also. Thats also asked in the BAR share from the proceeds of the utilization and
exam. development of its national wealth within its area,
Q: what are the sources of income of local government invoking this provision, including sharing the same with
units? the inhabitants by way of direct benefits. [couldnt find
A: So basically they can raise their own revenues by exact case]
levying local taxes, fees and charges.
TERM OF OFFICE
Q: Can Barangay also levy their own taxes without
express law granting it such authority? 3 years term, except barangay ha which cannot be
A: YES. Sec. 5 is self executing. It doesnt need an changed by law. The term of the barangay officials can
enabling law to execute the provision. be changed by law, not the other local elective officials.
3 years but in no case shall be more than 3 consecutive
TN If there is any law to that effect, it is only limiting the terms.
exercise of their taxation power.
When you serve, even if you dont finish your term, it
Q: Can the Local Govt. tax their local government may be considered one full term for purposes of
instrumentalities? determining the continuity or successiveness of the term
of office. Regular election ra ha! Not succession, recall
A: Recall the examples. It is part of the power to tax by election TN
these local governments. It is settled in the case of
MCIAA (Lapulapu) that the LGU has the power totax And then you have the case of Maguindanao (Abas Kida
because it is engaged in proprietary functions. case). Thats the most recent decision on the term of
office. Unsay sulti sa SC? DIba na-expire na ang term of
In contrast however, in the case of MIAA (Pasay), this office sa local officials, unya kay napostpone man ilang
property is owned by the state in its sovereign capacity, elections kay tungod sa peace and order, so they cannot
and therefore exempt from tax although exercising call for an election.
proprietary functions. Because they are titled in the
name of the Republic not as patrimonial properties, but Q: Can Congress, by postponing the elections, extend
as properties owned by the state in its sovereign the term of these local elective officials?
capacity, therefore exempt.
A: In the case of the terms of local officials, their term Q: Dismissal?

has been fixed clearly and unequivocally, allowing no A: there is an interruption because he did not finish the
room for any implementing legislation with respect to the term . then it is not considered as the full term that they
fixed term itself and no vagueness that would allow an serve.
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 CASE OF ALDOVINO JR VS COMELEC
holdover by Congress. ADSTCa The preventive suspension of public officials does not
If it will be claimed that the holdover period is effectively interrupt their term for purposes of the 3 term limit rule
another term mandated by Congress, the net result is for under the Constitution and the local government code.
Congress to create a new term and to appoint the Preventive suspension by its nature does not involve an
occupant for the new term. This view like the effective interruption of service.
extension of the elective term is constitutionally infirm Voluntary renunciation, while involving loss of office and
because Congress cannot do indirectly what it cannot do the total incapacity to render service, is disallowed by
directly, i.e., to act in a way that would effectively extend the Constitution as an effective interruption of a term. It
the term of the incumbents. Indeed, if acts that cannot is therefore not allowed as a mode of circumventing the
be legally done directly can be done indirectly, then all three-term limit rule.
laws would be illusory. Congress cannot also create a Preventive suspension, by its nature, does not involve
new term and effectively appoint the occupant of the an effective interruption of a term and should therefore
position for the new term. This is effectively an act of not be a reason to avoid the three-term limitation. It can
appointment by Congress and an unconstitutional pose as a threat, however, if we shall disregard its
intrusion into the constitutional appointment power of the nature and consider it an effective interruption of a term.
President. Hence, holdover whichever way it is Let it be noted that a preventive suspension is easier to
viewed is a constitutionally infirm option that undertake than voluntary renunciation, as it does not
Congress could not have undertaken. require relinquishment or loss of office even for the
XXX XXX XXX briefest time. It merely requires an easily fabricated
Significantly, the grant to the President of the power to administrative charge that can be dismissed soon after a
appoint OICs to undertake the functions of the elective preventive suspension has been imposed. In this sense,
members of the Regional Legislative Assembly is neither recognizing preventive suspension as an effective
novel nor innovative.||| interruption of a term can serve as a circumvention more
||| (Abas Kida v. Usman, G.R. No. 196271, 196305, potent than the voluntary renunciation that the
197221, 197280, 197282, 197392, 197454, o, October Constitution expressly disallows as an interruption.
18, 2011) ||| (Aldovino, Jr. vs. COMELEC, G.R. No. 184836,
December 23, 2009)
Q: who can fill up the vacancy because the term of
the government officials have already expired So for example, first term, elected. Second term,
A: the grant to the President the power to appoint an elected,Third term elected. During his third term, he was
OIC to undertake the function of the elective of the placed under preventive suspension. So nakuhaan iyang
members of the regional legislative assembly is neither term because he was suspended for six months. Instead
novel or innovative of 3 years, he only served for two years and 6 months.
There were previous decisions to this supporting the Q: Can he run in the next election?
ruling of the Supremer Court that it should be the A: No. Because the preventive suspension was not
President to appoint the Officer-in charge. considered an interruption.
TN OF THE CASES It would have been different if suspension was not
ALDOVINO JR VS COMELEC preventive suspension but suspension imposed as a
BOLOS VS COMELEC penalty then he has not fully served his third term, which
ADORMEO VS COMELEC makes him qualified. Or he has been dismissed . When
LONZALIGA VS COMELEC you are suspended as a penalty or you are dismissed,
BORJA VS COMELEC that is not considered as a voluntary interruption. But it
ONG VS ALEGRE was qualified if preventive suspension because here,
you still hold the title and the office. There is no
Example: if you resign that is not considered as an interruption in preventive suspension.
interruption.
The interruption of a term exempting an official from the
Q: what if you are suspended? three-term limit is no less than an involuntary loss of the
A: depends title to the office. In involuntary suspension, the
Preventive suspension no interruption suspended official is barred from exercising the functions
Mandatory suspension there is interruption of his office but does not vacate and lose title to his
office. Loss of office is a consequence that only results CONDITIONS FOR THE APPLICATION. The issue
upon an eventual finding of guilt or liability. TN before us was already addressed in Borja,
Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where
BAR; Case - Bolos Jr vs COMELEC we held, To recapitulate, the term limit for elective local
officials must be taken to refer to the right to be
FACTS: Bolos Jr. served as a barangay captain in his elected as well as the right to serve in the same elective
third term. He didn't finish it. position. Consequently, it is not enough that an
Then there was an election in the town municipal hall so individual has served three consecutive terms in an
he ran for the office of a municipal councilor and he won. elective local office, he must also have been elected to
Afterwards, he got bored because he was only a the same position for the same number of times before
councilor compared to when he was the barangay the disqualification can apply. . . . Likewise, in the case
captain where he is the boss. So during the next of Lonzanida vs. COMELEC, 311 SCRA 602, 611
barangay election, he ran for barangay captain. (1999), we said, This Court held that the two conditions
for the application of the disqualification must concur: a)
ISSUE: Is he qualified to run for Bgy Capt. when his third that the official concerned has been elected for three
term as a barangay captain was a voluntary resignation. consecutive terms in the same local government post
and 2) that he has fully served three consecutive terms.
HELD: The SC said that Bolos was serving his third term 2.CONSTITUTIONAL LAW; LOCAL GOVERNMENT;
as punong barangay when he ran for the Sangunian ELECTIVE LOCAL OFFICIALS; VOLUNTARY
Bayan membership and upon winning and assuming the RENUNCIATION OF OFFICE DOES NOT CANCEL
position as a Sangguniang Bayan member, thus THE RENOUNCED TERM IN THE COMPUTATION OF
voluntarily relinquishing his office as Punong Baranggay. THE THREE-TERM LIMIT; CASE AT BAR. Neither
The court deemed this as a voluntary loss of title to the can respondent's victory in the recall election be deemed
office of Punong Baranggay and therefore, does not a violation of Section 8, Article X of the Constitution as
interrupt the three-term limit. "voluntary renunciation" for clearly it is not.
In Lonzanida vs. COMELEC, we said: . . . The second
An interruption in the service of a term of office, by sentence of the constitutional provision under scrutiny
operation of law, is exemplified in Montebon v. states, "Voluntary renunciation of office for any length of
Commission on Elections. The respondent therein, time shall not be considered as an interruption in the
Sesinando F. Potencioso, Jr., was elected and served continuity of service for the full term for which he was
three consecutive terms as Municipal Councilor of elected." The clear intent of the framers of the
Tuburan, Cebu in 1998-2001, 2001-2004, and 2004- constitution to bar any attempt to circumvent the three-
2007. However, during his second term, he succeeded term limit by a voluntary renunciation of office and at the
as Vice-Mayor of Tuburan due to the retirement of the same time respect the people's choice and grant their
Vice-Mayor pursuant to Section 44 of R.A. No. elected official full service of a term is evident in this
7160. Potencioso's assumption of office as Vice-Mayor provision. Voluntary renunciation of a term does not
was considered an involuntary severance from his office cancel the renounced term in the computation of the
as Municipal Councilor, resulting in an interruption in his three-term limit; conversely, involuntary severance from
second term of service. The Court held that it could not office for any length of time short of the full term
be deemed to have been by reason of voluntary provided by law amounts to an interruption of continuity
renunciation because it was by operation of law. Hence, of service. The petitioner vacated his post a few months
Potencioso was qualified to run as candidate for before the next mayoral elections, not by voluntary
municipal councilor of the Municipality of Tuburan, Cebu renunciation but in compliance with the legal process of
in the May 14, 2007 Synchronized National and Local writ of execution issued by the COMELEC to that effect.
Elections. |(Bolos, Jr. v. COMELEC, G.R. No. 184082, Such involuntary severance from office is an interruption
March 17, 2009) of continuity of service and thus, the petitioner did not
fully serve the 1995-1998 mayoral term. aTcESI
Ardomeo Case; Recall Term ||| (Adormeo v. COMELEC, G.R. No. 147927, February
04, 2002)
Facts: First, Second and Third Election, he won.
Pagkatapos, iyang kontra ni-daog. However, he ran TN: Creation of cities, municipalities and provinces, in
during a recall election. terms of requirements
ISSUE: Was he qualified? Q: What are the requirements?

A: In terms of INCOME, POPULATION and AREA. ****
HELD: Yes.Because there was already an interruption.
He did not run the fourth election . He ran only during the One thing you should take note is Navarro vs Ermita.
recall election which was after the fourth election.
Therefore, the three-term limit is already interrupted. FACTS: This is the creation of the Kingdom of Ecleo,
1.POLITICAL LAW; ELECTION LAWS; Dinagat Island. There is a specific requirement for area.
DISQUALIFICATION; THREE-TERM RULE; This is an island which was sought to be considered as a
province. IT was considered as a province even though 6. Other high crimes

it lacked the area requirement to form a province.
The most important part here is the process. So we
ISSUE: Why was it created as a province when in terms have:
of area, it was lacking? 1. Initiation
2. Prosecution
RULING: The land area requirement area does not apply
where the proposed province is composed on one or Q: How is initiation done?
more islands. Thus it was declared valid. Accordingly, A: There has to be a filing of the complaint. Any citizen
RA 9355, creating Dinagat Province is declared as valid may file a complaint but it has to be endorsed by a
and not unconstitutional. The proclamation of Dinagat member of the House, if the one who filed is a member
Islands as a province and the officers thereof are also of the House, theres no more need of endorsement.
valid.
Q: How many votes are needed in order to affirm a
The land area requirements of a province comprising of resolution with the Articles of Impeachment?
one or more islands does not apply. A: 1/3. The Articles of impeachment will be prepared and
filed with the Senate.
TN: League of the Cities of the Philippines v Comelec
gi increase ang income, from 20M to 100M. Q: Assuming that it was filed by a private individual and
it was endorsed by a member of the House of
Q: Is MMDA a local government unit? Representatives, what will happen next?
A: No. It is only an administrative coordinating body. So A: It will be referred to the Committee on Justice. The
therefore it does not exercise those powers that are moment it is referred, regardless of the action, that may
given to LGUs. be taken by that committee. It is deemed initiated.
XI. Accountability of Public Officers Section 3.

***Memorize Section 1 (1) The House of Representatives shall have the
Section 1. Public office is a public trust. Public exclusive power to initiate all cases of impeachment.
officers and employees must, at all times, be (2) A verified complaint for impeachment may be
accountable to the people, serve them with utmost filed by any Member of the House of Representatives
responsibility, integrity, loyalty, and efficiency; act or by any citizen upon a resolution or endorsement
with patriotism and justice, and lead modest lives. by any Member thereof, which shall be included in
the Order of Business within ten session days, and
***Memorize impeachable officials: (President, Vice- referred to the proper Committee within three
President, Supreme Court Justices, Commissioners of
session days thereafter. The Committee, after
the Constitutional Commissions and Ombudsman). That
is EXCLUSIVE and the GROUNDS also are hearing, and by a majority vote of all its Members,
EXCLUSIVE. shall submit its report to the House within sixty
session days from such referral, together with the
Grounds for Impeachment: corresponding resolution. The resolution shall be
1. Culpable violation of the Constitution calendared for consideration by the House within ten
a. Q: Is the offense relating to that session days from receipt thereof.
impeachable offense? Can the (3) A vote of at least one-third of all the Members of
President be impeached for it? the House shall be necessary either to affirm a
b. A: It is impeachable but whether he can favorable resolution with the Articles of
be impeached is another story. Its a
Impeachment of the Committee, or override its
waste of time according to Fr. Bernas.
You know some people they just want to contrary resolution. The vote of each Member shall
put an impeachment complaint on be recorded.
record even if it may not prosper at all. (4) In case the verified complaint or resolution of
Makataghap diay. (Its clear that there impeachment is filed by at least one-third of all the
was a violation, particularly Section Members of the House, the same shall constitute the
25(5) of Art. VI, whether there was good Articles of Impeachment, and trial by the Senate
or bad faith, but the next question is shall forthwith proceed.
whether it is culpable. Thats another (5) No impeachment proceedings shall be initiated
story.) against the same official more than once within a
2. Bribery
period of one year.
3. Graft and Corruption
4. Betrayal of Public Trust (6) The Senate shall have the sole power to try and
5. Treason decide all cases of impeachment. When sitting for
that purpose, the Senators shall be on oath or has the support of one third of the members of the house
affirmation. When the President of the Philippines is it can still be filed with the senate.
on trial, theChief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be Q: So what will happen in the Senate?
A: There will be a hearing.
convicted without the concurrence of two-thirds of all
the Members of the Senate. Q: Who is going to preside it?
(7) Judgment in cases of impeachment shall not A: Ordinarily, if the impeachable official is not the
extend further than removal from office and president, it would be the president of the senate.
disqualification to hold any office under the Republic Otherwise if the subject of the impeachment is the
of the Philippines, but the party convicted shall President, then it would be Chief Justice of the Supreme
nevertheless be liable and subject to prosecution, Court.
trial, and punishment, according to law.
(8) The Congress shall promulgate its rules on Q: How many votes in order to convict?
impeachment to effectively carry out the purpose of A: 2/3 votes. TN
this section
Q: Does the requirement of publication, under the Rules
of Procedure, apply to impeachment proceedings?
Q: What happens the moment it is referred to the A: Again in the case of Gutierrez vs. The Ombudsman,
Committee on Justice? one of her grounds for dismissal of the case was that the
A: Regardless of the action that is taken by the rules of procedure on impeachment was not published.
committee, is it deemed initiated. Once it is deemed She said that it violated her right to due process. Is she
initiated, you cannot file a complaint within the one year correct? Supreme Court said No, she is not correct
because of the one year bar rule. because the requirement of publication of the rules of
procedure in congress applies only to the rules of
Q: What about several complaints? procedure relating to legislative inquiry not to
A: In the case of Gutierrez vs. The Ombudsman, there impeachment proceedings. So even if it is not published
were several complaints filed against her, it was made there cant be a violation of due process because that is
the same year, the Supreme Court ruled that for as long not required under the Constitution.
as it is simultaneously referred it is considered as one
initiation. It is possible that in one years time there are Sec. 4 of the Sandiganbayan Law
several complaints, however, they are to be consolidated Q: is this a Court?
and simultaneously referred to the committee and A: Yes.
considered as one initiation only.
Q: Is this part of the Judiciary?
Q: What may the Committee do once the complaint is A: Yes, it is part of the Judiciary but it is not part of the
referred to it? Ombudsman. It is a court not an Office, an Anti-Graft
A: Once it is referred to the committee, the committee Court.
may recommend its dismissal or it the filing.
Q: What is the role of the Ombudsman?
Q: To whom it is recommended? A: In relation to the Sandiganbayan, it becomes the
A: To the plenary session of the House. prosecutor. But there is the Special Prosecutors Office
that is under the Office of the Ombudsman that presents
Q: Within how many days does the Committee act? evidence in the Sandiganbayan.
A: 60 days and it is mandatory. They can be compelled
to file their report by mandamus should they fail to file it Q: Can a private prosecutor appear in the
in 60 days because it is their ministerial duty to submit Sandiganbayan?
the report in 60 days. A: No, unless the intention is to recover civil liabilities. If
theres no civil liability, then a private prosecutor has no
Q: What if the recommendation is the dismissal of the personality to appear in an Anti-Graft cases.
complaint? Is there any chance of that complaint
prospering? And it will be brought to the senate for Q: What powers does The Ombudsman, have?
prosecution? A: It has investigatory and prosecutorial power. When
A: Yes, all that is needed is one-third (1/3) even if two they conduct investigation in a criminal case, they act
thirds of the members of the house are agreeable to the like a regular prosecutor.
dismissal. If there is still one third of the membership left,
that is against the dismissal. Still, that case is initiated In a criminal case, they act like a regular prosecutor
and it can be filed with the senate for prosecution. determine probable cause, whether a crime has been
Even if the recommendation is for filing and two thirds committed and the person charged is probably guilty
are against the filing for as long as the recommendation thereof. It will be filed with the regular courts in the event
they will find probable cause. It is not for them to the imprimatur of the Ombudsman or the deputy of the
determine whether he is guilty or not. Ombudsman; otherwise, the information can be quashed
for lack of authority on the part of the prosecutor to file
In an administrative case, the Ombudsman acts like a the case in court.
judge to determine the guilt or innocence of the Again, if the case is triable before the Sandiganbayan it
respondent public officer. should be always with the approval of the Ombudsman
or the deputy Ombudsman. (TN)
So many cases wherein the Ombudsman had dismissed
government officials. Q: How long can the Ombudsman place someone under
preventive suspension?
Q: Is the dismissal executory? A: Not more than six (6) months.
A: Yes.
Q: Pending appeal? Q: how long can the ombudsman place someone under
A: Yes. Immediately executory. (TN) preventive suspension?
A: not more than six (6) months
Cases
Q: On recovery of ill gotten wealth, is there any
Facura vs CA, et al., GR No. 166495, February 16, prescriptive period?
2011. Appeals from the decisions of the Ombudsman
in administrative cases do not stay the execution of the A: There is none. Walay prescriptive period, forever, but
penalty imposed. prosecuting these persons responsible, TN 15 years
from the commission of the crime or from the time of
Ombudsman vs CA, Et al., GR NO. 1772224, January discovery of the crime, it prescribes ang criminal action
26, 2011 The decision of the Ombudsman in but not on the recovery of ill gotten wealth.
administrative cases may be executed pending appeal.
This is pursuant to the Rules of Procedure of the Office ---- Nothing Follows -----
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.
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

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Political Law Review of Class 2015 1st Sem

MADE POSSIBLE BY:

are only certain individuals who are authorized to do the

On the Constitution of government, that pertains to the Outline of Steps in Amendments

Q: These islands are mostly rocks. Why are we

Territory- we have explained it already.

TN: the case of Taada vs. Angara with respect to the

maintain the supremacy of the civilian authority over the

In the case of Estrada vs Escritor A.M. No. P-02-

E. Checks and balances Then finally, oversight function of congress to determine

TN: Amendments only!

There are important forms of government which are

the legitimate government. So you have an

There was no government to speak of at least as a

government is based on the direct action of the people 2. Constituent v. Ordinary

The government of Cory was a Revolutionary 4. Impeachment - Described somehow as quasi-

B. Houses of Congress the Philippines, as may be provided by law. (Art. VI,

Q:Can it be decreased by law?

Senate? Because they can be arrested and detained of

- Ex. you cannot be appointed as cabinet th

Q: What about an enrolled bill? F. Electoral tribunals and the Commission on

A: if they can agree now then there is the signing by

A: uniform; equitable; and progressive.. Equitable

respect to Codilla is still valid because the comelec was

A: President Q: Special Appropriation vs. General Appropriation

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

Another power of the president which is not provided in

Q: Any chance of a party-list representative being Q: up to what extent?

B. Declaration of Martial Law Q. If Congress failed to check the power of the

Always remember that this power is vested in the

Q: Now then, if for example, you already fully served Impeachment

Let us apply this to the case of Erap Estrada. Erap AMNESTY

Q: What would then be the consequences after the

Q: In criminal cases where the penalty imposed 1. temporary protection order

Kadagahan na nigawas ang writ of amparo ug writ of Power to Appoint

constitutional requirements of Section 14, Article VIII;

VI. Constitutional Commissions Villar's promotional appointment, so it is argued,

A: They are fixed by law and they cannot be decreased

Q: Can the salaries of the Chairmen and Commissioners

Q: Another point which is asked in Administrative Law

A: You go to the COMELEC.

Q: Can they be compelled to do pre-audit?

TNrecent decision of the Supreme Court relating to 2.CONSTITUTIONAL LAW; COMMISSION ON

autonomous region in Muslim Mindanao. Then that

A: In the case of the terms of local officials, their term Q: Dismissal?

ISSUE: Was he qualified? Q: What are the requirements?

province. IT was considered as a province even though 6. Other high crimes

XI. Accountability of Public Officers Section 3.

Q: Who are covered by the Ombudsmans investigatory

Q: what is the extent of the jurisdiction of the

Q: Does the power to prosecute or to investigate criminal

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

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