CONSTITUTIONAL LAW I REVIEW TSN

From the lectures of Atty. Vincent Paul Montejo

4-MANRESA 2017-2018

STRUCTURE AND POWERS OF GOVERNMENT B. EXECUTIVE DEPARTMENT

I. IN GENERAL 1. The President

Parts of a Constitution ----------------------------------------2 Qualifications, privileges and salaries------------- 55
Prohibitions -----------------------------------------------57
Succession------------------------------------------------59
II. JUDICIAL ELABORATION OF THE CONSTITUTION 2. Control of executive department---------------------61
3. General supervision of local governments and
A. Construction-----------------------------------------------2 autonomous regions------------------------------------61
B. Theory of Judicial Review------------------------------3 4. Power of appointment----------------------------------62
C. Conditions for the Exercise of Judicial Review---3 5. Executive clemencies-----------------------------------66
D. Functions of Judicial Review--------------------------9 6. Powers of the Commander-in Chief-----------------69
E. All Courts Can Exercise Judicial Review---------10 7. Emergency Powers-------------------------------------70
F. Effects of Declaration of Unconstitutionality ----10 8. Contracting and guaranteeing foreign loans------70
G. Political Question vs Justiciable Question------- 11 9. Power over foreign affairs-----------------------------70
10. Power over legislation ---------------------------------70
IV. THE PHILIPPINES AS A STATE 11. Immunity from suits--------------------------------------71
12. The Vice-President--------------------------------------71
A. Territory --------------------------------------------------12
B. People C. JUDICIAL DEPARTMENT
Citizenship -----------------------------------------------13
Election of Philippine Citizenship ------------------15 1. The Supreme Court-------------------------------------72
Naturalized Citizens -----------------------------------18 2. Lower Courts--------------------------------------------- 77
Denaturalization-----------------------------------------22
Loss and Reacquisition of Citizenship --------------- D. CONSTITUTIONAL COMMISSIONS
--------------------------------------------------------------22
C. Sovereignty 1. Civil Service Commission------------------------------77
Sovereign Immunity -----------------------------------24 2. Commission of Elections
Suability vs Liability------------------------------------26 3. Commission on Audit
D. Government ---------------------------------------------28
V. THE AMENDING PROCESS
III. STRUCTURE AND POWERS OF THE
NATIONAL GOVERNMENT A. Proposal--------------------------------------------------------80
B. Ratification-----------------------------------------------------80
A. LEGISLATIVE DEPARTMENT C. Theories regarding the position of a Constitutional
Convention in our system of government--------------81
1. Composition, Qualifications and Term of Office---- D. Judicial Review of the Amending Process-------------81
-------------------------------------------------------------28
Apportionment/Districts ------------------------------29
Party-list System ---------------------------------------30
Term Limitations----------------------------------------32
2. Election
Regular Elections---------------------------------------33
Special Elections---------------------------------------33
3. Salaries, Privileges, Qualifications
Salaries ---------------------------------------------------33
Freedom from arrest-----------------------------------33
Speech and debate clause---------------------------34
Disqualifications ----------------------------------------34
Other Prohibitions--------------------------------------35
4. Internal Government of Congress -----------------35
5. Sessions--------------------------------------------------37
6. Electoral Tribunal---------------------------------------37
7. Commission on Appointments----------------------38
8. Powers of Congress
General Plenary Powers------------------------------39
Delegation to local governments ------------------42
Act as BOC for Pres and VP Elections---------------
--------------------------------------------------------------45
Revoke or extend the suspension of the privilege
of the writ of habeas corpus and declaration of
martial law -----------------------------------------------46
Approve Presidential Amnesties--------------------47
Confirm certain appointments ----------------------47
Concur in treaties---------------------------------------47
Declaration of war and delegation of emergency
powers ----------------------------------------------------47
Be the judge of the President‘s physical fitness or
capacity---------------------------------------------------48
Power of impeachment -------------------------------48
9. Legislative Process------------------------------------51
10. Initiative and Referendum----------------------------55

CONSTITUTIONAL LAW I REVIEW TSN 1

 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
STRUCTURE AND POWERS OF GOVERNMENT
I. IN GENERAL
Parts of a Consitution: (From 2016 TSN)
1. Constitution of government
In the constitution of government, you just remember that
the constitution is not a document on which all the powers
are enumerated listed, and specified. The
statement in articles 6 to 8 section 1 where executive
power, legislative power, and judicial power are vested or
lodged is just a restatement and not a grant of authority or
power.
2. Constitution of liberties, and
3. Constitution of sovereignty.
II. JUDICIAL ELABORATION OF THE CONSTITUTION
A. Construction (Edited from 2016 TSN)
RULE 1: The provisions in the Constitution are deemed to
be self-executing.
When you say self-executing, they are direct sources of
rights. There is no need for a congressional act, legislative
act, or enabling law to make the rights under the
constitution claimable.
GR: The presumption is that there is no need for an
enabling law for rights in the constitution to be claimable.
XPN: The only exception is when, by intent or by express
requirement of the provision, an enabling law must have to
be passed by congress.
Article II of your 1987 Constitution is one of policy. These
are just policies. They cannot be a basis for any claim of
right. So, there can be no direct action that may be based
on those provisions on policies because they are not self-
executing provisions of the constitution.
RULE 2: Because the Constitution is not a penal statute,
there is no retroactive application.
Provisions in the constitution are prospectively applied and
perhaps the only provision in the present Constitution that
is retroactively applied is your definition of who are natural
born citizens under the citizenship article (Article IV)
because it covers those children born under the 1935
constitution of Filipino mothers married to a foreigner
father, which is not included in the 1973 definition of
natural born citizens. The intent is to cover those children.
Hence, it is retroactively applied.
RULE 3: Provisions in the constitution are to be
understood in their context and in their ordinary
dictionary meaning.
CHAVEZ VS. JBC
The Supreme Court quoted the latin maxim verba legis non
est recidendum meaning there can be no departure on
words as the statute or the constitution has provided for 2
reasons:
1. The words and phrases in the constitution have the intent
and objective of the framers. What is the extent and
objective of the framers? To make them understandable by
everybody.
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2. The constitution is not a document for lawyers or law
students or those knowledgeable in law, so that words and
phrases are to be understood in their ordinary or dictionary
meaning except of course when there is an intent To use the
technical meaning
So, the use of the word reclusion perpetua in Article XV on
the right to bail should be understood in its ordinary,
meaning, to include life imprisonment because the
technical term of reclusion perpetua is used loosely, so
that when the penalty imposable is not reclusion perpetua
or higher, bail should be a matter of right constitutionally.
But if the intent is to use the technical meaning, like writ of
amparo under your commander-in-chief clause powers, of
course, there can be no any other meaning except the
right of writ of amparo, if that were to be suspended.
Also, in promulgations of national positions in elective
offices, the word residence has been constantly
interpreted to mean domicile, so that even of the word
residence is used as a qualification to an elective public
office, that should be understood in its technical meaning
and not its ordinary meaning.
RULE 4: Rule on Dynamism - the words and phrases in
the constitution or constitutional provisions must be
capable of being interpreted not only to meet what is
being asked of in the present but also the
uncertainties and vagaries of the future.
It is said that one of the measures of a good constitution is
that it is capable of being interpreted not only to
accommodate the demands of the present but also those
to be demandable in the future.
In relation to this is your understanding of the: THE
DOCTRINE OF RELATIVE
CONSTITUTIONALITY. What does that mean?
When the Supreme Court interprets a law, statute, or an
act in relation to a constitutional provision to be not valid
under the constitution at present, it does not mean that the
ruling will remain forever. Conversely, if the Supreme
Court says that it is valid in the constitution as of the
moment that does not mean that it will remain to be valid
forever.
As they say there is no forever. When the circumstances
have been altered or there are new developments say in
human society or in human behavior, that ruling may
change depending on the demands of that particular time.
If you remember the flag salute cases, what was the first
thing that you could remember in these cases where
Jehovah‘s witnesses were not required to salute the flag?
The previous ruling was that it does not violate their right
under the freedom to exercise religion clause. But when
the same question was raised 16 years after, the Supreme
Court ruling changed, saying that it violates the free
exercise clause.
What has changed? Petitioners are the same. Religion is
the same. The claim is the same. The government is still
the same. The circumstances have altered. The evil
sought to be avoided in the earlier decision has not come
to pass or it could not instill the sense of patriotism to
children simply by compelling them to salute the flag.
There could be other ways of instilling patriotism on
children. The fear that there would be a generation of
children lacking in that sense [of patriotism did not come to
pass. And so the constitution should be capable of being
interpreted not only to meet the questions of the present
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
but also that of the future.
B. Theory of Judicial Review
June 20, 2017 A. Cutamora
Judicial review is a usual subject of the question in the bar
exam, except perhaps for the years where the exams were
MCQs. You need to understand this concept.
Of course, you already know that judicial review is based
on the old concept relating to the separation of powers that
various branches or offices of the government have their
own specific sphere of powers. When there is question on
which has the power, then the courts are called upon to
determine [which branch has the power]. Not because the
courts are considered to be superior to the rest, but
because the courts have the duty. They shall allocate
distribution or re-distribution of powers when there are
questions.
That being said, judicial review as a concept is already
presented as early as the case of ANGARA vs.
ELECTORAL COMMISSION decided under the 1935
Constitution. There was a discussion as to which branch of
the Government has the power to rule on election
contests. The SC said in this case that the court has the
power to exercise judicial review.
ANGARA VS. ELECTORAL COMMISSION
The separation of powers is a fundamental principle in our
system of government. It obtains not through express
provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance
of matters within its jurisdiction, and is supreme within its
own sphere. But it does not follow from the fact that the
three powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained
and independent of each other. The Constitution has
provided for an elaborate system of checks and balances
to secure coordination in the workings of the various
departments of the government.
In the 1987 Constitution, you very well know that the old
concept has been added to the definition of the judicial
power. Section 1 of Article VIII now is composed of two
parts. The first part is the traditional definition, referring to
justiciable question. The second part is the expanded
definition which is one traditionally known as judicial
review. So when there is question regarding grave abuse
of discretion amounting to lack or excess of jurisdiction.
The courts may exercise judicial review.
C. Conditions for the Exercise of Judicial Review
Based on your readings, you remember that there are
basically four conditions for exercising judicial review:
1. Appropriate or actual controversy
2. Legal standing
3. Must be reasonably raised at the earliest
opportunity
4. Must be the very lis mota of the case
The matter that we will encounter in examination questions
involving judicial review is on your knowledge on whether
or not the problem presents an issue, for which you must
exercise a judicial review. That problem is compounded
with the fact that not all questions requiring judicial review
have been decided by the courts.
If there has been no case decided yet on a constitutional
question, do not attempt to decide the constitutional
CONSTITUTIONAL LAW I REVIEW TSN 3
question. Because you are the not the Supreme Court.
Apply the four conditions. If all conditions are not present,
dismiss the petition. Never attempt to discuss and decide
whether or not complained of is unconstitutional.
Then there is your problem: How would you know if the
issue has already been resolved by the Supreme Court.
That would require you to read the cases involving judicial
review.
st
1 Requisite: Appropriate or actual controversy
What is an appropriate or actual controversy?
When we say appropriate or actual controversy, there is
an issue which is susceptible of judicial determination. It is
ripe for adjudication.
The issue of ripeness basically has two factors to
consider:
1. Fitness of the issues for judicial decision –
meaning the issues are proper for the courts to
decide
2. Difficulty the parties would entail if the court
would withhold consideration
So there is a need for the court to resolve the issue, so
that it is considered ripe for judicial adjudication. The issue
of ripeness is determined based on the terms of actual
injury to the plaintiff. Hence, the question is ripe for
adjudication when the act being charged has a direct
adverse effect on the individual charged.
Related to that would be the appropriateness of the action
or remedy to be filed. What is appropriate remedy or
action to bring about a judicial review question.
We have Rule 65 on certiorari, prohibition or
mandamus. We have seen some cases where it has been
raised initially as a defense in a criminal complaint where
the accused is charged. That is not a Petition for
Certiorari.
nd
2 Requisite: Legal standing
An analogy, for better understanding, would be the ―real
party in interest‖ under the Civil Procedure. Only real
parties in interest can bring a case or action.
The only issue, with respect to judicial review, is that it is
not a private right. It is normally a public right or interest or
a right over a public interest. He who has a material
interest on the outcome of the case or petition involving a
judicial review inquiry is considered to be a real party in
interest. Normally, a ―real party in interest‖ is characterized
as one who has direct, material interest over the case.
In one case, you may have read the case ―third party
standing prohibition.‖ What does that mean?
It means that a person cannot be made a proper party in
the case if the right to be protected is that of a third party.
Or he is a third party to the petition because he has no
direct injury or interest in the outcome of the case.
Of course, you have seen cases involving locus standi:
 Petitioner is given legal standing because he is a
voter and the issue involves right to suffrage.
 Legal standing is also given to a taxpayer
because it involves disbursement of public funds.
If there is an allegation that an act or a law
involves an illegal disbursement of public funds,
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
then the taxpayer can have locus standi on the
case.
 Also, there is a concept ―legislator‖ in several
cases. A member of Congress has a right to
question a validity of the law or its implementation
because, as a legislator, he has the interest to
ensure that the laws passed by Congress are not
unconstitutional and that they are implemented
consistent with the intent.
There is an exception to this ―locus standi‖ requirement
which is the ―doctrine of transcendental importance‖.
For sheer lack of proper party to bring about the case,
which is the third condition, the doctrine of transcendental
may be applied. Then the court may grant the party to a
case legal standing even if it has no direct injury to suffer
or will not a direct benefit as to the outcome of the case.
Because all the conditions are present, party petitioner will
be given a legal standing under the doctrine.
Conditions for the application of Doctrine of
Transcendental Importance:
1. It involves public character of the fund or asset,
2. There is a clear case of constitutional violation or
disregard
3. Sheer lack of a proper party to bring about the
case.
rd
3 Requisite: Reasonably raised at the earliest
opportunity
When we say that the case must have to be brought at the
earliest opportunity, it simply would refer to the condition
that the petition must not be moot or academic. If the
case has already been moot or academic, meaning there
is no more need for the court to decide the issue because
some elements are no longer present or it is already
settled (there‘s nothing more to resolve; any outcome of
the case will no longer benefit any if the parties), the court
may not exercise judicial review.
In the old case of YNOT vs. IAC which involves a
provincial ordinance penalizing the inter-provincial
transport of carabao without permit. The accused
contended that the provincial ordinance is unconstitutional
for being in violation of the exercise of the police power.
He argued that the ordinance is too general, does not
provide for legal means to achieve the legal purpose of the
police power. The lower court refused to rule on the
constitutional question.
When it went to the SC, the Court said that the RTC can
rule on it. But it can defer on ruling as to the issue as a
respect to the legislative branch of the government. The
SC said that the issue of constitutionality must be raised at
the earliest opportunity. If you will not raise it at the earliest
opportunity, then parties are deemed to have been
benefited from it that questions become moot and no
longer susceptible of judicial determination.
We also have the HACIENDA LUISITA CASES. If you
remember the Supreme Court declared the stock
redistribution option plan unconstitutional. Under RA 6657
(CARL), the beneficiaries must have to be given parcel of
lands. What happened in this case, they converted the
interests of the farmers into stocks of the corporations. So
they will now become co-owners of the corporations
without actual land given to them. This was questioned but
it was questioned after 15 or 18 years. A few have already
received benefits so the SC said that for those who have
received, they can no longer question it now. It‘s rather too
late in the day because they have not raised the issue at
the earliest opportunity.
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Despite the mootness, we have come across a lot of
cases respecting the exercise of judicial review.
When is an issue considered moot?
A question that ceases to present a justiciable controversy
because of a supervening event making any resolution
without particular use or value to the parties to the case
characterizes a moot question.
The exceptions would be:
1. There is a grave constitutional violation
2. Exceptional character of the issue or paramount
public interest is required
3. Resolution is required to formulate controlling
rules and regulations to guide the bench and the
bar
4. The issue is capable of repetition if not reviewed
Even if the issuance has become moot, it will be resolved
just the same under the symbolic or teaching function.
th
4 Requiste: It is the very lis mota of the case
When a case is filed before the SC on an unconstitutional
question, when the court dismisses the case because one
or some or all of the conditions are present, it means that
the court can dispose of the case without resolving the
constitutional question.
But if there is no other way to resolve the case without
resolving the constitutional question, that is what is meant
by ―the very lis mota of the case.‖ There is no other means
to dispose it but to resolve the constitutional question.
This refusal to exercise judicial review is again traceable to
the separation of the branches of the government. That
these branches are equal. They have equal powers. One
is not superior to the rest. There is also respect.
Traditionally, when a bill is enacted by Congress,
Congress is supposed only to pass bills which are not
violative of the Constitution. When that bill is presented,
the President is supposed to act on it by approving it only
when the bill is not violative of the Constitution. Only when
there is no other way to resolve the constitutional question
exercise judicial review because the issue is a very lis
mota of the case.
Let‘s go to the cases in your outline.
GARCIA vs. DRILON: This involves your VAWC Law.
Petitioner Garcia here was charged for violation of the
VAWC Law. He questioned that the law is violative, among
others, of equal protection clause. He said that there are
no similar laws for men. Judge Drilon said that when the
question is wisdom, propriety or morality of the legislation,
it is within the Congress. The court cannot exercise judicial
power because it is within the ambit of the legislative
department.
GARCIA VS. DRILON
It is settled that courts are not concerned with the wisdom,
justice, policy, or expediency of a statute.67 Hence, we
dare not venture into the real motivations and wisdom of
the members of Congress in limiting the protection against
violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may
be entertained in this proceeding. Congress has made its
choice and it is not our prerogative to supplant this
judgment. The choice may be perceived as erroneous but
even then, the remedy against it is to seek its amendment
or repeal by the legislative. By the principle of separation
of powers, it is the legislative that determines the
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
necessity, adequacy, wisdom and expediency of any law.
We only step in when there is a violation of the
Constitution. However, none was sufficiently shown in this
case.
CORPUZ vs. PEOPLE: This involves estafa case where
the penalty imposed was based on the RPC, which was
made effective in 1930. There was a discussion on the
imposition of the penalty. The argument was that in 1930,
the peso is this so the penalty is fixed at this. Today, with
inflation, the ratio should be 1:100. Therefore, the
corresponding adjustment for the penalty to be imposed by
the court must have to be made to be just on the accused.
The SC said that courts are only allowed to apply and
interpret the law. Can the court penalize someone for an
act not found on the RPC? Of course not, the Court needs
to acquit the accused. Instead, what it can do is to advice
the Congress that it should legislate to penalize.
Conversely, if the penalty imposed is found by the SC to
be harsh, they cannot do anything but impose it. They
cannot suspend it. What is the obligation of the court if it
happens? The RPC says that the court recommends to
the President clemency. Again, when it comes to
application of the law, it is with the SC. For the acts,
omissions and penalties, it is within the ambit of the
Congress.
CORPUZ VS PEOPLE
Verily, the primordial duty of the Court is merely to apply
the law in such a way that it shall not usurp legislative
powers by judicial legislation and that in the course of such
application or construction, it should not make or supervise
legislation, or under the guise of interpretation, modify,
revise, amend, distort, remodel, or rewrite the law, or give
the law a construction which is repugnant to its terms.38
The Court should apply the law in a manner that would
give effect to their letter and spirit, especially when the law
is clear as to its intent and purpose. Succinctly put, the
Court should shy away from encroaching upon the primary
function of a co-equal branch of the Government;
otherwise, this would lead to an inexcusable breach of the
doctrine of separation of powers by means of judicial
legislation.
MAMISCAL vs. ABDULLAH: This involves a clerk of
court in Sharia Court who was charged administratively
before the Supreme Court for issuing a certificate of
divorce. Apparently, it was tainted with irregularity. The
question is: Does the SC have jurisdiction or if not power
to hear and impose penalties in an administrative case for
that act?
The SC said that it is not within the court‘s authority. The
reading of the case will tell you that the clerk of court is
also the civil registrar in the Sharia Family Code. As civil
registrar, he is under the Local Government Code and the
Revised Administrative Rule on Civil Service. This is not
under the jurisdiction of the SC because he was not
charged as a clerk of court but for his acts for being a civil
registrar.
MAMISCAL VS ABDULLAH
Prescinding from the foregoing, it becomes apparent that
this Court does not have jurisdiction to impose the proper
disciplinary action against civil registrars. While he is
undoubtedly a member of the Judiciary as Clerk of Court
of the Shari'a Circuit Court, a review of the subject
complaint reveals that Mamiscal seeks to hold Abdullah
liable for registering the divorce and issuing the CRD
pursuant to his duties as Circuit Registrar of Muslim
divorces. It has been said that the test of jurisdiction is the
nature of the offense and not the personality of the
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offender. The fact that the complaint charges Abdullah for
"conduct unbecoming of a court employee" is of no
moment. Well-settled is the rule that what controls is not
the designation of the offense but the actual facts recited
in the complaint. Verily, unless jurisdiction has been
conferred by some legislative act, no court or tribunal can
act on a matter submitted to it.
CARPIO-MORALES vs. CA: This is the case involving the
doctrine of condonation. There‘s a very good discussion
here on the authority of the court with respect to the
decisions of the Ombudsman. If you remember, in the old
case of FABIAN vs. DESIERTO, where decisions of the
Ombudsman in administrative cases are reviewable only
to the Supreme Court. It was struck down by the SC
saying that Congress has only the power to enact a law to
increase the appellate jurisdiction of the SC but the SC
must give its prior consent or concurrent – which the
Congress did not secure. Hence, it was declared
unconstitutional.
Where do you appeal now or have the decision of the
Ombudsman reviewed? Court of Appeals. Under what
rule? Rule 43.
In this case, the question is still on the first paragraph of
Section 14 which says that no court can issue any
injunction against the Ombudsman, except the Supreme
Court. This was the case of Jojo Binay who was
preventively suspended. The Court of Appeals issued a
temporary writ of preliminary injunction. The question on
separation powers here is: Who has the power over the
jurisdiction of the courts? Supreme Court, no problem
because it‘s in the Constitution. How about the Court of
Appeals? It‘s Congress. Congress can, by law, establish,
create courts lower than the SC and provide for its
jurisdiction.
What‘s the general law on jurisdiction of the courts? What
law do we have? Batas Pambansa Blg 129. That is still a
good law. The problem is the rule on granting injunctions.
Who has the power? The SC said that when Congress
grants power for jurisdiction to a lower court, Congress
does not have the power to provide for the rules. It is the
Supreme Court that has the power.
CARPIO-MORALES VS. CA
Congress interfered with a provisional remedy that was
created by this Court under its duly promulgated rules of
procedure, which utility is both integral and inherent to
every court's exercise of judicial power. Without the
Court's consent to the proscription, as may be manifested
by an adoption of the same as part of the rules of
procedure through an administrative circular issued
therefor, there thus, stands to be a violation of the
separation of powers principle.
In addition, it should be pointed out that the breach of
Congress in prohibiting provisional injunctions, such as in
the first paragraph of Section 14, RA 6770, does not only
undermine the constitutional allocation of powers; it also
practically dilutes a court's ability to carry out its functions.
This is so since a particular case can easily be mooted by
supervening events if no provisional injunctive relief is
extended while the court is hearing the same. Accordingly,
the court's acquired jurisdiction, through which it exercises
its judicial power, is rendered nugatory. Indeed, the force
of judicial power, especially under the present
Constitution, cannot be enervated due to a court's inability
to regulate what occurs during a proceeding's course. As
earlier intimated, when jurisdiction over the subject matter
is accorded by law and has been acquired by a court, its
exercise thereof should be undipped. To give true
meaning to the judicial power contemplated by the
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Framers of our Constitution, the Court's duly promulgated
rules of procedure should therefore remain unabridged,
this, even by statute. Truth be told, the policy against
provisional injunctive writs in whatever variant should only
subsist under rules of procedure duly promulgated by the
Court given its sole prerogative over the same.
On the issue of the doctrine of condonation, that has been
abandoned. If you remember, a re-election of an elective
official is considered as a condonation of his administrative
liabilities from the previous term. It was still good until this
case of CARPIO-MORALES vs. CA. Public officials now
can no longer use the defense of the condonation
doctrine. If they are charged for an act committed in the
prior term and again elected, the case cannot be
dismissed. But this is prospectively applied. (Thanks in
part to Jojo Binay, that is his contribution to the
jurisprudence.)
What doctrine of condonation cases do you remember?
AGUINALDO vs. SANDIGANBAYAN, that is one of the
most famous decisions. Now, we have BINAY Doctrine.
FUNA vs. AGRA: The judicial review condition discussed
here in mootness. This case involves Article 7, Section 13.
Agra was pointed as active Secretary of Justice and active
Solicitor General. Does it violate Section 13? The SC said
yes.
FUNA VS. AGRA
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or
value.22 Although the controversy could have ceased due
to the intervening appointment of and assumption by
Cadiz as the Solicitor General during the pendency of this
suit, and such cessation of the controversy seemingly
rendered moot and academic the resolution of the issue of
the constitutionality of the concurrent holding of the two
positions by Agra, the Court should still go forward and
resolve the issue and not abstain from exercising its power
of judicial review because this case comes under several
of the well-recognized exceptions established in
jurisprudence. Verily, the Court did not desist from
resolving an issue that a supervening event meanwhile
rendered moot and academic if any of the following
recognized exceptions obtained, namely:
(1) there was a grave violation of the Constitution;
(2) the case involved a situation of exceptional character
and was of paramount public interest;
(3) the constitutional issue raised required the formulation
of controlling principles to guide the Bench, the Bar and
the public; and
(4) the case was capable of repetition, yet evading review.
BELGICA vs. OCHOA: The condition discussed
here is ripeness of the case or actual controversy. This is
about PDAF cases. The PDAF has been considered as
unconstitutional for five reasons.
BELGICA VS. OCHOA
By constitutional fiat, judicial power operates only when
there is an actual case or controversy. This is embodied in
Section 1, Article VIII of the 1987 Constitution which
pertinently states that :
"Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable x x x."
Jurisprudence provides that an actual case or controversy
is one which "involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial
6 CONSTITUTIONAL LAW I REVIEW TSN
resolution as distinguished from a hypothetical or abstract
difference or dispute. In other words, "there must be a
contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence."
Related to the requirement of an actual case or
controversy is the requirement of "ripeness," meaning that
the questions raised for constitutional scrutiny are already
ripe for adjudication. "A question is ripe for adjudication
when the act being challenged has had a direct adverse
effect on the individual challenging it. It is a prerequisite
that something had then been accomplished or performed
by either branch before a court may come into the picture,
and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the
challenged action." "Withal, courts will decline to pass
upon constitutional issues through advisory opinions,
bereft as they are of authority to resolve hypothetical or
moot questions."
MANILA MEMORIAL vs. DSWD: This involves the
Expanded Senior‘s Citizen Act. Should it cover memorial
lots also or funeral services? The Expanded Senior‘s
Citizen Act was constitutional.
MANILA MEMORIAL VS. DSWD
There exists an actual case or controversy.
We shall first resolve the procedural issue. When the
constitutionality of a law is put in issue, judicial review may
be availed of only if the following requisites concur:
(1) the existence of an actual and appropriate case;
(2) the existence of personal and substantial interest on
the part of the party raising the [question of
constitutionality];
(3) recourse to judicial review is made at the earliest
opportunity; and
(4) the [question of constitutionality] is the lis mota of the
case.
In this case, petitioners are challenging the
constitutionality of the tax deduction scheme provided in
RA 9257 and the implementing rules and regulations
issued by the DSWD and the DOF. Respondents,
however, oppose the Petition on the ground that there is
no actual case or controversy. We do not agree with
respondents. An actual case or controversy exists when
there is "a conflict of legal rights" or "an assertion of
opposite legal claims susceptible of judicial resolution."
The Petition must therefore show that "the governmental
act being challenged has a direct adverse effect on the
individual challenging it."
In this case, the tax deduction scheme challenged by
petitioners has a direct adverse effect on them. Thus, it
cannot be denied that there exists an actual case or
controversy.
FUNA vs. MECO: The condition discussed here is legal
standing and mootness. The substantive aspect of the
case involves whether or not MECO is under the auditing
powers of COA. After the civil war in China, there were two
Chinese countries that came about – the mainland China
(People‘s Republic of China) and Taiwan (Republic of
China).
The Philippines had diplomatic reasons with both. But
later, based on a UN General Assembly Resolution, the
UN issued a One-China policy wherein the Philippines and
all countries, for that matter, have to cut diplomatic ties
with Taiwan. Despite the cutting of the diplomatic relations,
Philippines continued to have actual relations with Taiwan
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
by reason of employment. Marami tayong domestic
helpers doon and tourists.
To avoid any diplomatic issue with the People‘s Republic
of China, the Philippines and the Republic of China
adopted a mechanism wherein there will be ―private offices
to handle these matters.‖ For the Philippines, it is the
Manila Economics and Cultural office or the MECO. It
handles basically two: consular requirements (visa, travel
documents) and the handling of domestic overseas
Filipinos workers. Based on our labor laws, there is some
requirement of payment of some fees if you are deployed.
The employers are mandated to pay fees.
The issue here, as filed by Funa, is: Are the fees collected
by MECO property of the government? Is MECO subject
to COA audit? The rule in COA is: Jurisdiction is as for so
long as there is government money, regardless of where it
is found, that can be audited by COA. Same sa PDAF
cases to. The money of the government goes to the
NGOs. The NGOs are not government but since they
received government money, they are under the
jurisdiction of COA.
FUNA VS. AGRA
We decline to dismiss the mandamus petition on the
ground of mootness.A case is deemed moot and
academic when, by reason of the occurrence of a
supervening event, it ceases to present any justiciable
controversy. Since they lack an actual controversy
otherwise cognizable by courts, moot cases are, as a rule,
dismissible.
The rule that requires dismissal of moot cases, however, is
not absolute. It is subject to exceptions. In David v.
Macapagal-Arroyo, this Court comprehensively captured
these exceptions scattered throughout our jurisprudence:
The "moot and academic" principle is not a magical
formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot
and academic, if:
First, there is a grave violation of the Constitution;
Second, the exceptional character of the situation and the
paramount public interest is involved;
Third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the
bar, and the public; and
Fourth, the case is capable of repetition yet evading
review.
In this case, We find that the issuance by the COA of
Office Order No. 2011-698 indeed qualifies as a
supervening event that effectively renders moot and
academic the main prayer of the instant mandamus
petition. A writ of mandamus to compel the COA to audit
the accounts of the MECO would certainly be a mere
superfluity, when the former had already obliged itself to
do the same.
DISINI vs. SOJ: This is your Anti-Cyber Crime Law issue.
There is a question on the constitutionality of the some of
the provisions of the law. Perhaps, of interest to you is the
Cyber-Libel, involing Facebook or social media. That
provision has been strucked down as unconstitutional if
you click ―like‖ or ―share‖. But if you were the author of the
libelous or defamatory post, you may be held liable for
cyber libel. However, if like and share lang, di ka liable.
Also, if you are charged with libel, it constitutes double
jeopardy if you are charged again for violation of certain
provisions of the Anti-Cyber Crime Act of 2012.
DISINI VS. SOJ
CONSTITUTIONAL LAW I REVIEW TSN 7
In an "as applied" challenge, the petitioner who claims a
violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of
fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality
of a statute only if he asserts a violation of his own rights.
It prohibits one from assailing the constitutionality of the
statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as
the prohibition against third-party standing.
But this rule admits of exceptions. A petitioner may for
instance mount a "facial" challenge to the constitutionality
of a statute even if he claims no violation of his own rights
under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling
effect" on protected speech that comes from statutes
violating free speech. A person who does not know
whether his speech constitutes a crime under an
overbroad or vague law may simply restrain himself from
speaking in order to avoid being charged of a crime. The
overbroad or vague law thus chills him into silence.
REYES vs. INSULAR LIFE: The issue is on the actual
controversy or mootness of the case.
REYES VS. INSULAR LIFE
The existence of an actual case or controversy is a
condition precedent for the court‘s exercise of its power of
adjudication. An actual case or controversy exists when
there is a conflict of legal rights or an assertion of opposite
legal claims between the parties that is susceptible or ripe
for judicial resolution. In negative terms, a justiciable
controversy must neither be conjectural nor moot and
academic. There must be a definite and concrete dispute
touching on the legal relations of the parties who have
adverse legal interests. The reason is that the issue
ceases to be justiciable when a controversy becomes
moot and academic; otherwise, the court would engage in
rendering an advisory opinion on what the law would be
upon a hypothetical state of facts. The disposition of the
case would not have any practical use or value as there is
no actual substantial relief to which the applicant would be
entitled to and which would be negated by the dismissal or
denial of the petition.
In the present case, the issue of the propriety of
discretionary execution has already been rendered moot
and academic with our denial of Insular Life‘s petition and
issuance of the entry of judgment in G.R. No. 189605. This
means that our affirmation of the lower courts‘ rulings on
the main case has become final and executory.
Consequently, the issue of whether the petitioners are
entitled to discretionary execution pending appeal no
longer presents any justiciable controversy. It becomes the
RTC‘s ministerial duty to issue a writ of execution in favor
of the petitioners who are now entitled to execution as a
matter of right.
IMBONG vs. OCHOA: This is your RH Law. It was
questioned to be unconstitutional. The judicial review
issues here are: appropriate remedies, actual case or
controversy, legal standing issue and matter of
transcendental importance.
Is the RH Law unconstitutional? Generally, insofar as it
violates the rights of contentious objectors. What are
contentious objectors? They object to a state-imposed law,
under pain of penalty, if it violates their religious beliefs. All
those provisions that violate the rights of the contentious
objectors are considered as unconstitutional.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
ARAULLO vs. AQUINO: This is your case on the DAP
(Disbursement Acceleration Program). The matters judicial
review discussed here is propriety of action (meaning Rule
65 petition), actual case controversy and legal standing.
The DAP is unconstitutional.
ARAULLO VS. AQUINO
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
Thus, the Constitution vests judicial power in the Court
and in such lower courts as may be established by law. In
creating a lower court, Congress concomitantly determines
the jurisdiction of that court, and that court, upon its
creation, becomes by operation of the Constitution one of
the repositories of judicial power. However, only the Court
is a constitutionally created court, the rest being created
by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes the
duty of the courts of justice not only "to settle actual
controversies involving rights which are legally
demandable and enforceable" but also "to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government." It has
thereby expanded the concept of judicial power, which up
to then was confined to its traditional ambit of settling
actual controversies involving rights that were legally
demandable and enforceable.
The background and rationale of the expansion of judicial
power under the 1987 Constitution were laid out during the
deliberations of the 1986 Constitutional Commission by
Commissioner Roberto R. Concepcion (a former Chief
Justice of the Philippines) in his sponsorship of the
proposed provisions on the Judiciary, where he said:–The
Supreme Court, like all other courts, has one main
function: to settle actual controversies involving conflicts of
rights which are demandable and enforceable.
There are rights which are guaranteed by law but cannot
be enforced by a judicial party. In a decided case, a
husband complained that his wife was unwilling to perform
her duties as a wife. The Court said: "We can tell your wife
what her duties as such are and that she is bound to
comply with them, but we cannot force her physically to
discharge her main marital duty to her husband. There are
some rights guaranteed by law, but they are so personal
that to enforce them by actual compulsion would be highly
derogatory to human dignity."
This is why the first part of the second paragraph of
Section 1 provides that: Judicial power includes the duty of
courts to settle actual controversies involving rights which
are legally demandable or enforceable…The courts,
therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the
Supreme Court has, also, another important function. The
powers of government are generally considered divided
into three branches: the Legislative, the Executive and the
Judiciary. Each one is supreme within its own sphere and
independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is
vested in courts of justice.
UNITED OVERSEAS vs. BOC: This discusses actual
controversy and mootness.
8 CONSTITUTIONAL LAW I REVIEW TSN
REPUBLIC vs. CORTEZ: This discusses legal standing.
OSMENA vs. PSALM: The question here involves the
validity of the sale of the Naga Power Plant. The issue on
judicial review: the legal standing of Osmena is
questioned. Of course he has legal standing.
OSMEÑA VS. PSALM
We have held that legislators have the standing to
maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in their office and are allowed to
sue to question the validity of any official action which they
claim infringes their prerogatives as legislators. In this
case, there was no allegation of usurpation of legislative
function as petitioner is suing in his capacity as
Chairperson of the Committee created pursuant to Section
62 of R.A. No. 9136. Such position by itself is not sufficient
to vest petitioner with standing to institute the present suit.
Notably, the enumerated functions of the Committee under
the aforesaid provision are basically "in aid of legislation."
Notwithstanding, the Court leans on the doctrine that "the
rule on standing is a matter of procedure, hence, can be
relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of
paramount public interest." When the proceeding involves
the assertion of a public right, the mere fact that the
petitioner is a citizen satisfies the requirement of personal
interest.
OSMENA vs. ABAYA: The issues on judicial review were
on legal standing. Of course, Osmena has legal standing
as a member of the Congress.
OSMEÑA VS. ABAYA
Legal standing or locus standi refers to a personal and
substantial interest in a case such that the party has
sustained or will sustain direct injury because of the
challenged governmental act. The requirement of
standing, which necessarily sharpens the presentation of
issues, relates to the constitutional mandate that this Court
settle only actual cases or controversies.
Thus, generally, a party will be allowed to litigate only
when:
(1) he can show that he has personally suffered some
actual or threatened injury because of the allegedly illegal
conduct of the government;
(2) the injury is fairly traceable to the challenged action;
and
(3) the injury is likely to be redressed by a favorable
action.`
For a party to have locus standi, one must allege "such a
personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional
questions."
Because constitutional cases are often public actions in
which the relief sought is likely to affect other persons, a
preliminary question frequently arises as to this interest in
the constitutional question raised.
When suing as a citizen, the person complaining must
allege that he has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by
reason of the statute or act complained of. When the issue
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
concerns a public right, it is sufficient that the petitioner is
a citizen and has an interest in the execution of the laws.
For a taxpayer, one is allowed to sue where there is an
assertion that public funds are illegally disbursed or
deflected to an illegal purpose, or that there is a wastage
of public funds through the enforcement of an invalid or
unconstitutional law. The Court retains discretion whether
or not to allow a taxpayer's suit.
In the case of a legislator or member of Congress, an
act of the Executive that injures the institution of Congress
causes a derivative but nonetheless substantial injury that
can be questioned by legislators. A member of the House
of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the
Constitution in his office.
An organization may be granted standing to assert the
rights of its members, but the mere invocation by the
Integrated Bar of the Philippines or any member of the
legal profession of the duty to preserve the rule of law
does not suffice to clothe it with standing.
As regards a local government unit (LGU), it can seek
relief in order to protect or vindicate an interest of its own,
and of the other LGUs.
LAUDE vs. GINEZ-ABALDE: Remember the case of
Pemberton? A case was filed against Ginez-Abalde by the
family of the victim because of the decision in the lower
court. The issue here was on mootness. The SC reiterated
that the question must be raised earlier. It cannot be
raised collaterally. Therefore, constitutional questions
cannot be raised collaterally.
LAUDE VS. GINEZ-ABALDE
The constitutionality of an official act may be the subject of
judicial review, provided the matter is not raised
collaterally.
In Planters Products, Inc. v. Fertiphil Corporation:
Judicial review of official acts on the ground of
unconstitutionality may be sought or availed of through
any of the actions cognizable by courts of justice, not
necessarily in a suit for declaratory relief. . . The
constitutional issue, however, (a) must be properly raised
and presented in the case, and (b) its resolution is
necessary to a determination of the case, i.e., the issue of
constitutionality must be the very lis mota presented
INTERNATIONAL SERVICE vs. GREENPEACE: This is
your case regarding the BT Talong testing. Is this testing
unconstitutional? The issue discussed here is mootness.
The SC also made mention of the issue in legal standing,
citing OPOSA vs. FACTORAN. When the issue is with
respect to the environment, the issue on legal standing is
applied liberally. Diba in OPOSA case, there was a
discussion on inter-generational responsibility. The
generation of the present have the responsibility to protect
the environment of the future generation.
INTERNATIONAL SERVICE vs. GREENPEACE
Locus standi is "a right of appearance in a court of justice
on a given question." It refers particularly to "a party's
personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result" of the act
being challenged, and "calls for more than just a
generalized grievance."
However, the rule on standing is a matter of procedure
which can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the
public interest so requires, such as when the matter is of
CONSTITUTIONAL LAW I REVIEW TSN 9
transcendental importance, of overreaching significance to
society, or of paramount public interest. The Court thus
had invariably adopted a liberal policy on standing to allow
ordinary citizens and civic organizations to prosecute
actions before this Court questioning the constitutionality
or validity of laws, acts, rulings or orders of various
government agencies or instrumentalities.
Oposa v. Factor an, Jr. signaled an even more liberalized
policy on locus standi in public suits. In said case, we
recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the
fundamental law." We held that such right need not be
written in the Constitution for it is assumed, like other civil
and political rights guaranteed in the Bill of Rights, to exist
from the inception of mankind and it is an issue of
transcendental importance with intergenerational
implications. Such right carries with it the correlative duty
to refrain from impairing the environment.
The liberalized rule on standing is now enshrined in the
Rules of Procedure for Environmental Cases which allows
the filing of a citizen suit in environmental cases. The
provision on citizen suits in the Rules "collapses the
traditional rule on personal and direct interest, on the
principle that humans are stewards of nature," and aims to
"further encourage the protection of the environment."
There is therefore no dispute on the standing of
respondents to file before this Court their petition for writ of
kalikasan and writ of continuing mandamus.
KABATAAN PARTY vs. COMELEC: This involves the
mandatory biometrics of the voters. The SC said that it is
not for the courts to decide but for Congress.
D. Functions of Judicial Review
Judicial review has three functions:
1. Checking
[From 2016] The act in question is nullified for
being inconsistent with the constitution.
2. Legitimating
Legitimating is exercised when there is no other way for
the court to dispose of the petition but to resolve the
unconstitutional question or issue. In the end, the SC will
declare the act or law complained of as not violative of the
Constitution. The Court will do this and it will bring, at least
for the moment, a rule that it is not violative of the
Constitution.
3. Symbolic
Symbolic - it refers to the court nullifying the act. When we
say that the court does this, the law becomes
unconstitutional. The provision is unconstitutional.
[From 2016] This is used when the issue is moot or
academic or there is no need to resolve the issue
because either one, some, or all of the conditions are not
present but still the court opt to resolve the issue,
so that there will be some rules promulgated to
guide the bench, the bar, and the public. To do so
would avoid the repetition of petitions filed in the future
involving similar constitutional questions.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
When a constitutional question is raised and the petition is
dismissed, the law or act complained of will still enjoy the
presumption of constitutionality but the question will not
yet be settled. But if the court exercises a legitimating
function, there I at least for the moment a definite ruling
that the law, act or provision complained of is not violative
of the Constitution. When the court does this, the
disposition must be in the double negative: NOT
UNCONSTITUTIONAL. Why? Because there is always
that presumption of constitutionality. With or without the
ruling, the law is presumed constitutional.
We made mentioned of ―at least for the moment‖ because
if you remember that old case of CENTRAL BANK
EMPLOYEES UNION vs. BSP, there is a concept called
―doctrine of relative constitutionality.‖ What does it
mean?
That the disposition in a particular case for the moment will
settle the issue that this provision act, law or provision is
not violative of the Constitution but that disposition will not
be forever. Because when the circumstances are altered,
they have changed, what may have been not
unconstitutional today may be declared unconstitutional in
the future. There is a possibility that a different outcome
will be resolved by the court.
Conversely, even if the decision today is that it is
unconstitutional, if the times have changed and the
circumstances have been altered in the future, there may
be a different disposition.
E. All Courts Can Exercise Judicial Review
June 27, 2017 Z. Montefolca
This is based on two grounds:
First, The question of constitutionality must be raised at
the earliest opportunity. Even at the first level court if the
issue of constitutionality is proper to be raised as an issue
it must have to be raised otherwise that question
might become moot or academic or not raised at the
earliest opportunity.
Second, is based on Art VIII Sec 5 (2a) which is the
power of the SC to revise, reverse, review, modify or affirm
decisions of lower courts respecting the constitutionality
and validity and all those enumerate items which
presupposes that there has been an earlier declaration of
a trial court of a constitutional issue. However, correctly
understood, only courts can exercise judicial review.
Executive department agencies which exercise quasi-
judicial powers do not have the power to declare a law or
an act unconstitutional because what it has is only quasi-
judicial in relation to its power to implement the law. Surely
they have the power to interpret what the issuance is but
the power to interpret is in relation to the so called
implementation of the law as part of its executive function.
It has no power to declare a law act or order
unconstitutional
BROKENSHIRE VS. MINISTER OF LABOR
The interpretation of the wage orders in question was for
the purpose of implementing it whether the workers are
entitled to it but not as claimed by petitioners has the
power to declare the wage orders as unconstitutional.
F. Effects of Declaration of Unconstitutionality
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Your Art 7 of New Civil Code is the traditional concept of a
declaration of unconstitutionality. When a law is declared
to be inconsistent with the constitution the constitution
shall prevail and the law shall be declared unconstitutional.
By its traditional concept when a law declared
unconstitutional it is considered not to have been enacted
at all. It is considered not part of our legal system and
therefore could not be made the basis of any right, any
claim of office, claim of legal remedy, it is as if it not
enacted by congress at all. Cannot be the basis of any
obligation whatsoever.
Doctrine of Operative Fact
When there are certain acts done for which the public may
have a right upon, the constitutionality or validity of an act
law or even an executive issuance and there has been
effects by reason of such reliance prior to the declaration
of its unconstitutionality the court has applied what we
know then as early as 1971 in the case of Serrano de
Agbayani vs. PNB which has been repeatedly cited by
the SC in the case of EDCA, the case of Saguisag vs
Ochoa on the constitutionality of EDCA and the case of
CIR vs Puregold a 2015 case where the SC has applied
the operative fact doctrine the SC has explained that
based on the old case of Serrano Agbayani the period of
time where the law in question was in effect the public has
generally has complied with it and therefore there may
have been acts committed or omissions because of the
efficacy of the law so that period of efficacy before the law
has been considered as unconstitutional is an operative
fact and therefore any act which was done in compliance
with the law or omission because they have complied with
the law should have to be given legal effect
When do we apply the civil code traditional view as to the
effect of unconstitutionality and the operative fact
doctrine?
It will have to call your knowledge or your reliance on your
readings in what instances has the court applied the
operative fact doctrine and in what instances was the so
called orthodox view applied. General rule is article 7
because the operative fact doctrine is not a positive rule of
law rather it is a rule of equity and fair play and only
instances where to apply article 7 will result to inequity or
unjust situation so that the parties will have to return to
their former status prior to the declaration of its
unconstitutionality will the operative fact doctrine be
applied. Again the question is has the court applied the
doctrine of operative fact? Again it would have to call for
your knowledge of the cases which you have read or come
across with respect to the operative fact doctrine
HACIENDA LUISITA VS. PARC
The question there was whether the operative fact doctrine
is applicable to executive issuances. No problem with
respect to law if the law is declared to be unconstitutional
because it violated the constitution we apply either
orthodox view or the operative fact doctrine. For example
operative fact doctrine would apply probably would be xxx
hacienda luisita the SC said that it applies to executive
issuances. If you remember the case involves the
issuance of a department agrarian reform as to the stock
distribution option. Will it be declared unconstitutional?
The answer is yes. Will the operative fact doctrine be
applied? The SC said yes because it covers not only
statutes but also executive issuances.
Belgica vs. Ochoa this is your PDAF. Your Araullo vs.
aquino is your DAP. If you remember these cases we
mentioned already they were declared to be
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
unconstitutional in both cases but what should happen to
those disbursements which were made in relation to the
PDAF provisions in the questioned general appropriations
act of those years they were already spent? Should they
be returned? The SC said NO. They were spent or
disbursed in accordance with the provision of the GAA
which were then considered to be not unconstitutional. So
for long as these are valid disbursements, there is no need
to return. The emphasis is on valid because what was
declared in this decision on the PDAF is the PDAF
provision itself so the nature of disbursement or expense
would fall under the so called PDAF scam cases that
would not be validated simply because the PDAF
provisions were declared unconstitutional.
The operative fact doctrine does not give validity to an
otherwise illegal act even if that provision law or act has
not been considered as unconstitutional. So with that the
PDAF and DAP were declared unconstitutional all monies
which were already disbursed provided the disbursements
were validly made under the DAP provision even if the
DAP provision was declared unconstitutional later this
disbursements or expenditures provided legal will no
longer be declared illegal but if they were illegal to begin
with despite the DAP provision the declaration of
unconstitutionality will not validate those otherwise illegal
disbursements.
CIR VS. PUREGOLD
This is on tax exemption. Puregold one of the biggest
importers availed of certain tax exemptions based on the
Bases Conversion Act. The Bases Conversion Act granted
certain tax exemptions to Subic Special Economic Zone.
They also have on in Clark Special Economic Zone which
was not covered by the law. They were supposed to be
covered by some other but not the tax incentives granted
to the Subic Special Economic Zone. However there was
an executive issuance EO 88 which extended the tax
incentives or privileges granted to this operators in Subic
Special Economic Zone to those operators in Clark
Special Economic zone which Puregold also availed
because it operates in Subic.
They are now assessed with taxes like vat and other
excise taxes on some goods however the SC in another
case which was decided later after the grant in EO 80
declared EO 80 as unconstitutional.
So if you would apply the orthodox view then the tax
exemptions or privileges granted to puregold by EO 88
should not be valid and therefore they should pay taxes
over their operations in Clark Special Economic Zone
because it is only in Subic that it is granted.
There a few discussions there and one is the operative
fact. So BIR is supposed to be estopped from claiming
otherwise they were in fact granting tax exemptions under
EO 88 before it was declared unconstitutional it was an
operative fact that EO 88 was valid for which the tax
exemptions were based. And if you remember NIRC
there‘s a provision there with respect to non-applicability of
rulings to those granted previously so that if the tax
exemptions were granted provided there is no bad faith
fraud or misrepresentation on the part of the tax payer,
any subsequent rulings to the contrary will xxx. So the
period of efficacy of EO 88 was an operative fact and
therefore Puregold is supposed to be exempt still.
G. Political Question vs Justiciable Question
The concept of political question, as you have
remembered, refer to questions which the people in their
sovereign capacity will have to decide or to which full
CONSTITUTIONAL LAW I REVIEW TSN 11
discretionary authority has been granted to the political
branches of the government. They are not to be decided
by the court- [which refers to justiciable questions].
Before, the delineation was clear because judicial review
was just a theory under the previous constitutions. As we
made mention the old case of Angara, it was a landmark
ruling where the SC said that yes courts have judicial
review powers. The 1987 Constitution has institutionalized
that by amending Sec 1 of Art VIII expanding the definition
of judicial power. We said that the second phrase of that
judicial power refers to judicial review.
The question now has been asked whether the concept of
political question has been obliterated under the 1987
constitution or has it been retained but has been
diminished. In the discussion of the cases the SC
maintained that there are still matters that fall squarely on
the concept of political question, these are questions either
the people will have to decide or to which discretionary
authority has been granted to the political branches of the
government courts cannot resolve these issues but
because of the expanded definition of judicial power now
the court acknowledges that what used to be within the
concept or realm of political question has been necessarily
diminished for so long as you could show grave abuse of
discretion amounting to lack or in excess of jurisdiction.
VINUYA VS. ROMULO
The case of the comfort women. this was a case of
mandamus to compel the philippine government to file a
claim internationally against japan in favor of comfort
women because of what they have been made to suffer
during the japanese occupation here the SC said in the
matter of foreign relations within the political question
concept it is part of presidential discretion whether or nor
to file the case the court cannot the president the by
mandamus to file the case for claim for these comfort
women because it affects foreign relations or foreign
policy.
With respect to foreign policy, it is still within the concept
of political question for long as there are no specific
limitations the Constitution would require. This is the same
ruling in Saguisag vs Ochoa (as mentioned this is your
EDCA ruling). Is the EDCA a treaty or an executive
agreement? Does it require the concurrence of senate as
required by Article VI because it is a treaty? So the SC
discussed and analyzed whether EDCA is a treaty which
requires the concurrence of the senate or whether it is just
an executive agreement. The SC was of the opinion that
EDCA is an executive agreement. If you remember on the
power of the President over treaties, there is a reference
there to the definition of what a treaty or what an executive
agreement is which requires the concurrence of Senate. It
was an old case and in Saguisag vs Ochoa the SC cited
the distinction between the treaty and an executive
agreement.
In that case the SC said that EDCA is an executive
agreement because it just to identify basically the agreed
locations on where the US military forces and civilian
personnel can be allowed in the philippines. Do we already
have a treaty allowing military troops or facilities or
equipment? Do we have? Yes we have. The Visiting
Forces Agreement it is a treaty and it has been concurred
by Senate as required so there is no question as to its
constitutionality. It allowed the presence of military troops
and equipment because there is no agreement or treaty as
to facilities or bases for that matter. If you remember your
history on the presence of American troops here we have
the old mutual defense treaty which we always refer to.
Also, in relation to the military bases agreement which
expired. Will it expire? 50 years from 1947-1997. So the
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Senate did not agree to an extension so the Americans
tried to work it out and eventually we had the visiting
forces agreement. The EDCA was an instrument which
was entered into by the president to allow in certain
agreed locations where these foreign military troops and
equipment will be allowed to stay for the act or
performance of activities in relation to visiting forces
agreement so it is not a treaty which requires senate
concurrence its just an executive agreement.
With respect to executive agreement, that is part of foreign
relations so it is a political determination. The courts
cannot in the absence of any constitutional limitation direct
the president to do one thing and not the other because
again it is part of what we know as political question as
well.
IV. THE PHILIPPINES AS A STATE
A. Territory
ARTICLE I. The national territory comprises
the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories
over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas.
The waters around, between, and connecting the islands
of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the
Philippines.
[From 2016] The other matter with respect to territory,
mostly as asked in the bar exam would be your
applicability of the principle of territoriality of
criminal statutes. It would pose a problem where there
is an act committed within a certain distance from the
baseline. Of the 200-mile exclusive economic zone, we
only have the first 12 nautical miles as the territorial sea.
Outside of that is no longer part of the territorial sea and
therefore any act which may be punishable under the
criminal statute in the Philippines cannot be made the
basis of any criminal action here because outside of the
12 nautical miles, the Philippine criminal statute would not
apply.
But if the problem or the question is posed as to the
violation of the rights of the state to which the EEZ
belongs, then probably, that can be claimed on but
criminal statutes no longer apply.
The archipelago concept
[2016] Your UNCLOS defines an archipelago,
supposedly, as a group of islands surrounded with water
but because of the definition of internal waters, the
interpretation of what an archipelago is it should be in
relation to body of waters studded with islands.
Within the baselines, we have laws on the base points
and the straight baseline method.
Section 2. All waters within the baselines provided for in
Section one hereof are considered inland or internal
waters of the Philippines.
If it is an archipelagic state, it should be, all the waters
and the group of islands within the waters inside the
baseline. Outside the baseline, that will be declared as
the territorial sea and it is where the EEZ will have to be
measured from. Again, only the first 12 is part of the
territorial sea.
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The terrestrial, aerial, and fluvial domains come with the
concept of territory. Therefore, it will only extend up to
the 12 nautical miles if it is water. If it‘s upwards then it
goes up to where technically it is already the space. If it is
below the space, then it is still part of the aerial
domain.
[2017] The 12 nautical mile territorial sea and then you
have your special economic zone. With the advent of the
ruling in the tribunal in favor of the Philippines, theoretical
questions have been asked because your President has
made pronouncements that he may allow the joint
exploration of the resources in the disputed territory if this
is outside the first 12 nautical miles measured from the
baseline. We say that this is territorial sea. Obviously there
can be no joint exploration there because it is reserved to
Filipino citizens what can be allowed there would be
financial assistance under Article XII but what about in the
EEZ strictly outside the 12 nautical miles because the 12
nautical miles from the baseline is also part of the 200 mile
eez. the general proscription in eez rights would be
exclusive exploration and exploitation is reserved to the
state to which the eez belongs. it cannot be given to any
other what is allowed to other states would be any activity
which has nothing to do with the exploitation and
exploration of natural resources.
So can the Philippines enter into such agreement? Justice
Carpio has already been saying in all his talks about this
matter that the president cannot do that otherwise he will
be violating not only the eez provisions under the
UNCLOS but also the constitution for giving up whatever
rights the philippines has over the eez so that might be a
question but it is a theoretical question. It may not come to
realization until the documents or agreements are signed.
The other matter would be on this so called other
territories which the philippines has sovereignty and
jurisdiction. With respect to the historical claim over sabah
as you remember the phraseology of the 87 constitution
has been changed from historic right to legal title which
has been changed now to other territories which the
philippines has sovereignty and jurisdiction. The question
there is have we abandoned our claim over sabah? We
have not abandoned it the phraseology has just been
changed so as to avoid diplomatic brawl with other
countries especially malaysia who is exercising jurisdiction
over sabah as well.
So this provision or phrase accepts possibility that we
have other territories in the future which we have acquired
by any of the allowable means whether t is by force or by
title assuming we have the capacity already we might be
able to annex islands surrounding philippines outside our
territory but which we have acquired by any mode
allowable by force or otherwise and where we have to
exercise sovereignty over it.
NICOLAS VS. ROMULO
Do we maintain sovereignty over areas where there are
foreign military troops or bases or facilities?
This case is based on the case of Smith. There were two
very sensational cases involving American service men.
One was Daniel Smith and the other was Pemberton. As
you know the short story of the long story Smith was
acquitted on appeal and the victim had been given a 10
year visa to the US as a settlement of the civil aspect of
the case.
But as to question of territory do we have sovereignty or
control over the bases or areas which under a treaty are
supposed to be where the US service men would be?
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Under the old Mutual Defense Treaty, there was a view
that we do not have sovereignty over them. It‘s like your
concept of territoriality in criminal law. If the crime is
committed in the Philippine consular office in Washington
is the crime committed in the Philippines? Is the consular
office or embassy of the Philippines in the foreign country
considered as an extension of the Philippine Territory?
So similar question under the Mutual Defense Treaty or
the Military Bases Agreement. Before, there was a view
that the sovereignty of the Philippines over that military
base is not with the Philippines but that of the US.
Correctly understood, however, the reason why there are
several issues regarding jurisdiction over military service
men committing crimes before was because the authority
over the peace and order of the bases are not lodged with
Philippine authorities but with the US and there are certain
peculiar arrangements that while they are subject to
Philippine laws their detention to the trial and detention
after trial may not be in Philippine jail otherwise they might
end up dead or be subjected to some other things.
In the case of Saguisag vs Ochoa, that was again raised.
What was the relationship of US and Philippines with
respect to those agreed locations where US personnel as
well as their equipment will be allowed on VFA related
activities? The SC said that a reading of the EDCA will
show that the Philippines retained ownership and therefore
sovereignty over these agreed locations. What is given to
the US is control over their personnel in these agreed
locations rightfully so if they are performing acts there in
relation to activities allowed under the VFA of course their
commander should have control over their person. But at
least the SC said it is clear now under EDCA where
soverignty lies but again there are still procedural
considerations with respect to us service men committing
crimes that yes they are subject to our laws but as to the
process or procedure or processing them there are some
agreements to it. They could not be simply detained in our
penal facilities or institutions.
B. People
Citizenship
ART IV Section 1. The following are citizens of the
Philippines:
1. Those who are citizens of the Philippines at the time of
the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the
Philippines;
3.Those born before January 17, 1973, of Filipino mothers,
who elect Philippine Citizenship upon reaching the age of
majority; and
4.Those who are naturalized in the accordance with law.
In the concept of People, most of the discussions here
would be your concept of citizens and this concept of
citizen. The topic of citizenship is also one of the subject
matter of bar exams. Who are citizens of the philippines?
There seems to be some misunderstanding on the
applicability of some concept simply because the
constitutions have enumerated who the citizen are but
aside from the definition of who are natural born there are
a lot of discussions or matters to consider so first question
to ask who are citizens of the Philippines?
There are basically two types of citizens:
CONSTITUTIONAL LAW I REVIEW TSN 13
1. Natural-born
2. Naturalized
Those who are natural born was first defined under the
1973 constitution There has been no definition under the
1935 constitution. Previous to that we have the Philippine
Bill of 1902 which practically identifies who the citizens of
the Philippines are.
Who are citizens of the Philippines under Philippine Bill of
1902?
Those who are inhabitants of the Philippine Islands who
are subjects of Spain as of April 11, 1891 and who resided
in the Philippine islands as well as their children are
considered citizens of the Philippines.
So no distinction as to whether natural born or otherwise
but they are once considered as citizens of the philippines
Thus under the 1935 constitution for the first time there is
an enumeration of who the citizens are:
1935 Constitution. ARTICLE IV Section 1. The following
are citizens of the Philippines:
1.Those who are citizens of the Philippine Islands at the
time of the adoption of this Constitution.
2. Those born in the Philippine Islands of foreign parents
who, before the adoption of this Constitution, had been
elected to public office in the Philippine Islands.
3. Those whose fathers are citizens of the Philippines
4. Those whose mothers are citizens of the Philippines
and, upon reaching the age of majority, elect Philippine
citizenship.
5. Those who are naturalized in accordance with law.
If you noticed of the 5 enumerated items the first 4 would
normally refer to natural born citizens normally because in
the 1935 Constitution, there are no natural born citizens as
defined yet.
If you are a citizen of the Philippines under Philippine Bill
of 1902, at the time of the adoption of the 1935
constitution and you are not naturalized you are
considered as citizen of the Phlippines who is not
naturalized. Are you natural born? Then you have to move
to the 1973 Constitution.
The definition of who are natural born has first been
defined under 1973. It [natural- born] refers to those who
are citizens from birth without having to perform an act to
perfect or acquire citizenship.
Two operative phrases the first on is ―citizen from birth‖
and the other one ―without performing an act to perfect
or acquire citizenship‖.
The first is important because if he is a citizen from birth
who did not do anything he is considered as natural born
but if that person is not a citizen from birth and even if he
did not perform an act to perfect or acquire he may not be
considered as natural born simply because he is not a
citizen from birth, a good example would be your law on
naturalization. In naturalization, a person, provided he
complies with the requirement of naturalization can
become a naturalized citizen.
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And we know that in naturalization, minor children and
foreigner wife, because it is usually the foreign husband
who would apply what would be the benefit to the minor
children if the foreigner father has been naturalized? The
foreigner father‘s grant of naturalization will benefit the
minor children and under derivative mode the minor
children will be considered filipino citizen. Are those
children natural born?
Stephen Curry and wife decided to move to the philippines
to play for Ginebra because he was offered so much
money to play basketball. And so he has a little girl. If
Stephen Curry is granted naturalized status and the wife
was to derive it, that little girl will become Filipina correct?
But will that little girl be considered as natural born? She
did not perform an act to perfect acquire because she was
a minor but she is not a filipino from birth so she could
never become a natural born citizen.
Those subjects of spain under the Philippine bill of 1902
accepts of 2 categories:
1. the local inhabitants, the indios, the natives of the
Philippine archipelago
2. The foreigners
 Insulares - born in a country which has been
colonized by spain like the philippines
 Peninsulares- spanish descent who were born in
the spanish peninsula but who are here in the
philippines
All of them, if they were there at the cut off date and
remain to be here with their children, are considered
citizens of the Philippines and so if they were here at the
time of the adoption of the 1935 Constitution, they will be
considered Filipino citizens. But going further to 1973
Constitution, we ask the question, are they natural born?
Again if that person is not a Filipino from birth even if he
has not performed an act to perfect or acquire then he
may not be considered as a natural born filipino under the
1973 and 1987 Constitution
So if you are a local/ native born here you will be
considered a filipino citizen from birth. But if you are born
of Spanish parents and you are born in Insular Philippines
or in Spanish Peninsula but you are here in the Philippine
Bill of 1902 cut off, you will never be considered a natural
born because you are not a Filipino from birth. You are of
spanish descent and the only possibility would be is if your
father is filipino or you or your father have been elected to
a public position upon the adoption of the 1935
Constitution.
The problematic kind of children would be those born of
mixed marriages. So Filipino father under 1935
constitution, the child is automatically considered Filipino
in the 1973 and that child is considered natural born but
under the 1935 Constitution if the mother is Filipino and
the father is a foreigner then there are certain discussions:
1. If the marriage is legal, the child follows the citizenship
of the father during minority but at the time he reaches
majority age, he has to elect Philippine citizenship in
order to become a filipino citizen.
2. If the cohabitation is not by reason of a valid marriage,
the citizenship of the filipino mother will be followed not
that of the father. This is probably one of the occasions
where it is beneficial to an illegtimate child. The reason
being based on our Civil Code provisions then the
custody, obligation to rear the child falls on the natural
mother who is the Filipino citizen so the child should not
14 CONSTITUTIONAL LAW I REVIEW TSN
follow the status of the foreigner father because of the
illegitimate relations between the parents.
Assuming there is a valid marriage so the question there is
when was the child conceived or born for the child to be
allowed elect Philippine citizenship upon reaching the age
of majority? Questions are asked because of the so called
requirement to elect philippine citizenship. You have come
across cases. The father was a foreigner, wife is filipino
and the child was born under the 1935 constitution but the
father in the meantime has been naturalized in the
Philippines. Should the child of that marriage elect
Philippine citizenship upon reaching the age of majority?
The answer is no because when the father was granted
naturalization, we are still under the 1935 constitution,
before the child has reached the age of majority, the grant
to the father will benefit the child and the child will
automatically become a filipino citizen even without doing
anything so the quesiton is, in 1973 is the child natural
born?
Again we look at the 2 operative phrases. Is the child a
Filipino citizen from birth? The answer is yes because of
the Filipino mother. She has filipino blood in her. Did the
child perform an act to perfect or acquire filipino
citizenship? Nothing. The child was just playing because
he was still a minor. So under the 1973 constitution, he is
a natural born. No need to elect.
If the Filipino mother has already been naturalized in the
foreign country because she applied for naturalization,
remember under the 1935 constitution under the
applicable laws then a marriage of a filipino woman to a
foreigner husband may deem her to be foreigner by
reason of such marriage by operation of law, she need not
apply for naturalization in order to become a citizen of that
foreign country. So what if the mother is considered to be
a citizen of the country of the foreigner husband, will the
child of that marriage be still allowed to elect filipino
citizenship or worse what if the mother applied for
naturalization in that foreign country where her husband
comes from will the child of that marriage be allowed to
elect Philippine citizenship?
If the foreign citizenship of the wife/mother was acquired
by mere operation of law, the child of that marriage can
always elect philippine citizenship because the mother has
not been xxx in that foreign country by reason of her own
act, it was by reason of application of the law of the
country where the husband comes from and therefore the
question is asked was there a filipino mother married to a
foreigner father to talk about? The answer is yes and
therefore the child of that marriage will have a right to elect
philippine citizenship upon reaching the age of majority.
But what if the mother/wife has applied for foreign
citizenship or naturalization in that foreign country? Still we
ask the question, at the time when the child was
conceived, was there a filipino mother married to a
foreigner father and the answer is yes then the child
eventually born will have the right to elect philippine
citizenship upon reaching the age of majority. But if there
is no more filipino mother/wife to talk about because the
mother has been fully naturalized in the foreign country
when she conceived the child obviously born also or gave
birth to the child then obviously there is no more filipino
mother to talk about and therefore the child of that
marriage will no longer be allowed to elect because the
child is not conceived and born of a filipino mother and a
foreigner father.
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July 5, 2017 S. Biruar
Election of Philippine Citizenship
Election of Philippine citizenship upon reaching the age of
majority is applicable to those who were born of Filipino
mothers and foreign fathers under the 1935 Constitution.
The following are citizens of the Philippines: xxx
(4) Those whose mothers are citizens of the Philippines
and upon reaching the age of majority, elect Philippine
citizenship. (Section 1, Article III, 1935 Constitution)
COMMONWEALTH ACT No. 625
(AN ACT PROVIDING THE MANNER IN WHICH THE
OPTION TO ELECT PHILIPPINE CITIZENSHIP SHALL
BE DECLARED BY A PERSON WHOSE MOTHER IS A
FILIPINO CITIZEN)
Section 1. The option to elect Philippine citizenship in
accordance with subsection (4), section 1, Article IV, of the
(1935) Constitution shall be expressed in a statement to
be signed and sworn to by the party concerned before any
officer authorized to administer oaths, and shall be filed
with the nearest civil registry. The said party shall
accompany the aforesaid statement with the oath of
allegiance to the Constitution and the Government of the
Philippines.
The right of election permitted under the 1987 Constitution
is available only to those born to Filipino mothers under
the 1935 Constitution who, had that charter not been
changed, would have been able to elect Philippine
citizenship upon attaining majority age. That right is
retained for them under Article IV, Section 1 (3).
Obviously, election is not necessary in the case of the
child to a Filipino mother under the present constitution as
he would be considered a Filipino citizen at birth.
REPUBLIC vs. LIM
The constitutional and statutory requirements of electing
Filipino citizenship cited apply only to legitimate children.
These do not apply in the case of respondent who was
concededly an illegitimate child, considering that her
Chinese father and Filipino mother were never married.
As such, she was not required to comply with said
constitutional and statutory requirements to become a
Filipino citizen. By being an illegitimate child of a Filipino
mother, respondent automatically became a Filipino upon
birth. Stated differently, she is a Filipino since birth without
having to elect Filipino citizenship when she reached the
age of majority.
Take note that the election of Philippine citizenship is
always formal. Do not be confused with certain statements
we call obiter in decisions stating that there is an informal
mode of electing Philippine citizenship. There is only one
mode and that is the formal election.
How to elect Philippine citizenship?
1. There must be an affidavit or sworn statement
stating therein that the affiant child is born of
Filipino mother and an alien father under the
1935 Constitution.
2. The affidavit must be accompanied by an Oath of
Allegiance.
3. Both documents must be filed with the
appropriate civil registry.
4. The election must be made within a reasonable
time from attaining the age of majority.
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Of course we think of 21 years because this is the age of
majority contemplated then.
Q: What is reasonable time?
A: Based on an old DOJ Opinion in 1950, 3 years is still a
reasonable time but this is not a hard and fast rule. In
some of its decision, the Supreme Court held that there
can be justification for a period longer than 3 years. So if
there is a valid reason why there is no formal election of
Philippine citizenship within 3 years from the time the child
reached the age of majority (21), then that may be
considered.
IN RE: CHING
ISSUE: Can a legitimate child born under the 1935
Constitution of a Filipino mother and an alien father validly
elect Philippine citizenship fourteen (14) years after he has
reached the age of majority?
RULING: No. The 1935 Constitution and C.A. No.
625 did not prescribe a time period within which the
election of Philippine citizenship should be made. The
1935 Charter only provides that the election should be
made "upon reaching the age of majority." The age of
majority then commenced upon reaching twenty-one (21)
years.
The proper period for electing Philippine citizenship should
be made within a "reasonable time" after attaining the age
of majority. The phrase ―reasonable time" has been
interpreted to mean that the election should be made
within three (3) years from reaching the age of majority .
However, the SC held in Cuenco vs. Secretary of Justice
that the three (3) year period is not an inflexible rule. But it
cautioned that the extension of the option to elect
Philippine citizenship is not indefinite.
Based on the interpretation of the phrase ―upon reaching
the age of majority," Ching's election was clearly beyond,
by any reasonable yardstick, the allowable period within
which to exercise the privilege.
Moreover, Ching has offered no reason why he delayed
his election of Philippine citizenship. The prescribed
procedure in electing Philippine citizenship is certainly not
a tedious and painstaking process. All that is required of
the elector is to execute an affidavit of election of
Philippine citizenship and thereafter, file the same with the
nearest civil registry. Ching's unreasonable and
unexplained delay in making his election cannot be simply
glossed over.
Philippine citizenship can never be treated like a
commodity that can be claimed when needed and
suppressed when convenient. One who is privileged to
elect Philippine citizenship has only an inchoate right to
such citizenship. As such, he should avail of the right with
fervor, enthusiasm and promptitude. Sadly, in this case,
Ching slept on his opportunity to elect Philippine
citizenship and, as a result, this golden privilege slipped
away from his grasp.
With respect to the registration of the sworn statement of
Philippine citizenship and Oath of Allegiance, please take
note of the case of Ma vs. Fernandez (2010).
MA VS. FERNANDEZ
ISSUE: Should children born under the 1935 Constitution
of a Filipino mother and an alien father, who executed an
affidavit of election of Philippine citizenship and took their
oath of allegiance to the government upon reaching the
age of majority, but who failed to immediately file the
documents of election with the nearest civil registry, be
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considered foreign nationals?
RULING: No. The statutory formalities of electing
Philippine citizenship are: (1) a statement of election under
oath; (2) an oath of allegiance to the Constitution and
Government of the Philippines; and (3) registration of the
statement of election and of the oath with the nearest civil
registry.
Where the election of citizenship has in fact been done
and documented within the constitutional and statutory
timeframe, the registration of the documents of election
beyond the frame should be allowed if in the meanwhile
positive acts of citizenship have publicly, consistently, and
continuously been done. The actual exercise of Philippine
citizenship, for over half a century by the herein
petitioners, is actual notice to the Philippine public which is
equivalent to formal registration of the election of
Philippine citizenship.
Registration is made for the purpose of notification and
confirmation of the existence of a fact. In the instant case,
it is not the registration of the act of election, although a
valid requirement under Commonwealth Act No. 625, that
will confer Philippine citizenship on the petitioners. It is
only a means of confirming the fact that citizenship has
been claimed.
In sum, the sworn statement and the taking of the oath are
the operative acts of validly choosing or electing Philippine
citizenship upon reaching the age of majority. The belated
registration for sheer inadvertence should not be
considered to affect the validity of electing citizenship.
The case of Ma vs. Fernandez should be distinguished
from Republic vs. Sagun (2012).
REPUBLIC VS. SAGUN
ISSUE: Whether or not respondent Sagun has complied
with the procedural requirements in the election of the
Philippine citizenship
RULING: Respondent failed to comply with the legal
requirements for a valid election. Specifically, respondent
had not executed a sworn statement of her election of
Philippine citizenship. The only documentary evidence
submitted by respondent in support of her claim of alleged
election was her oath of allegiance, executed 12 years
after she reached the age of majority, which was
unregistered.
Even assuming arguendo that respondent‘s oath of
allegiance suffices, its execution was not within a
reasonable time after respondent attained the age of
majority and was not registered with the nearest civil
registry as required under Section 1 of C.A. No. 625. The
phrase ―reasonable time‖ has been interpreted to mean
that the election should be made generally within three (3)
years from reaching the age of majority. Moreover, there
was no satisfactory explanation proffered by respondent
for the delay and the failure to register with the nearest
local civil registry.
Based on the foregoing circumstances, respondent clearly
failed to comply with the procedural requirements for a
valid and effective election of Philippine citizenship.
Respondent cannot assert that the exercise of suffrage
and the participation in election exercises constitutes a
positive act of election of Philippine citizenship since the
law specifically lays down the requirements for acquisition
of citizenship by election. The mere exercise of suffrage,
continuous and uninterrupted stay in the Philippines, and
16 CONSTITUTIONAL LAW I REVIEW TSN
other similar acts showing exercise of Philippine
citizenship cannot take the place of election of Philippine
citizenship.
Note: The informal mode cannot substitute the formal
mode in electing Philippine citizenship.
In Ma vs. Fernandez, the children immediately filed a
sworn statement and took an oath of allegiance upon
reaching the age of majority, although these documents
were belatedly registered.
In Republic vs. Sagun, the respondent did not
immediately elect Philippine citizenship upon reaching the
age of majority. In fact, it was only when we turned 33
years old when she decided to take an Oath of Allegiance,
which was unregistered.
NATURAL-BORN CITIZENS
ART IV Section 2. Natural-born citizens are those who
are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens.
Section 1, ―3. Those born before January 17, 1973, of
Filipino mothers, who elect Philippine Citizenship upon
reaching the age of majority;‖ (Art IV, 1987 Constitution)
There are only two types of Filipino citizens under the
present Constitution: natural-born and naturalized
Filipinos.
Natural-born citizens have two operative traces:
1. The fact of Philippine citizenship at birth
2. The fact that there is no performance of an act to
acquire or perfect citizenship
What offices under the Constitution require the official
to be “Natural-Born”?
1. President (Art VII, Sec 2)
2. Vice –President (Art VII, Sec 3)
3. Members of Congress (Art VI, Secs 3 and 6)
4. Justices of the Supreme Court and lower
collegiate courts (Art VIII, Sec 7)
5. Ombudsman and his deputies (Art XI, Sec 8)
6. Constitutional Commission Members (Art IX-B,
IX-C, IX-D, Sec 1)
7. Central Monetary Authority Members (Art XII, Sec
20)
8. Commission on Human Rights Members (Art XIII,
Sec 17)
POE VS. COMELEC
ISSUE: Whether or not Grace Poe is a natural-born
Filipino.
RULING: Yes, she is a natural-born Filipino based on (1)
circumstantial evidence, (2) legislation, and (3) generally
accepted principles of international law.
On circumstantial evidence
There is more than sufficient evidence that petitioner has
Filipino parents and is therefore a natural-born Filipino.
The statistical probability that any child born in the
Philippines from 1965 to 1975 is natural-born Filipino was
99.83%. Other circumstantial evidence of the nationality of
petitioner‘s parents are the fact that she was abandoned
as an infant in a Roman Catholic Church in Iloilo City. She
also has typical Filipino features: height, flat nasal bridge,
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straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have
happened according to the ordinary course of nature and
the ordinary habits of life. All of the foregoing evidence,
that a person with typical Filipino features is abandoned in
Catholic Church in a municipality where the population of
the Philippines is overwhelmingly Filipinos such that there
would be more than a 99% chance that a child born in the
province would be a Filipino, would indicate more than
ample probability if not statistical certainty, that petitioner‘s
parents are Filipinos.
On legislation
As a matter of law, foundlings are as a class, natural-born
citizens. While the 1935 Constitution's enumeration is
silent as to foundlings, there is no restrictive language
which would definitely exclude foundlings either. Because
of silence and ambiguity in the enumeration with respect to
foundlings, there is a need to examine the intent of the
framers.
The deliberations of the 1934 Constitutional Convention
show that the framers intended foundlings to be covered
by the enumeration. Though the Rafols amendment was
not carried out, it was not because there was any objection
to the notion that persons of "unknown parentage" are not
citizens but only because their number was not enough to
merit specific mention. As the Solicitor General points out,
"the constitutional silence is fully explained in terms of
linguistic efficiency and the avoidance of redundancy - that
there is no more need to expressly declare foundlings as
Filipinos because they are impliedly so recognized."
The Court finds no intent or language permitting
discrimination against foundlings. On the contrary, all three
Constitutions (1935, 1973, and 1987) guarantee the basic
right to equal protection of the laws.
Moreover, domestic laws on adoption also support the
principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the
adoptee. Rather, the adoptee must be a Filipino in the first
place to be adopted. Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the
adoptee is a Filipino. Domestic adoption laws all expressly
refer to "Filipino children" and include foundlings as among
Filipino children who may be adopted.
Thus, foundlings enjoy natural-born status.
On generally accepted principles in international law
Foundlings are likewise citizens under international law.
Under the 1987 Constitution, an international law can
become part of the sphere of domestic law either by
transformation or incorporation. The transformation
method requires that an international law be transformed
into a domestic law through a constitutional mechanism
such as local legislation. On the other hand, generally
accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty
obligations.
The Philippines is a signatory to the Universal Declaration
of Human Rights ("UDHR"). The Philippines has also
ratified the UN Convention on the Rights of the Child
(UNCRC). In 1986, the country also ratified the 1966
International Covenant on Civil and Political Rights
(ICCPR).
The common thread of the UDHR, UNCRC and ICCPR is
CONSTITUTIONAL LAW I REVIEW TSN 17
to obligate the Philippines to grant nationality from birth
and ensure that no child is stateless. This grant of
nationality must be at the time of birth, and it cannot be
accomplished by the application of our present
naturalization laws, Commonwealth Act No. 473, as
amended, and R.A. No. 9139, both of which require the
applicant to be at least eighteen ( 18) years old.
The principles found in 1930 Hague Convention and 1961
UN Convention on the Reduction of Statelessness, while
yet unratified by the Philippines, are generally accepted
principles of international law. (1) The first is Article 14 of
the 1930 Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws under which a
foundling is presumed to have the "nationality of the
country of birth" (2) The second is Article 2 of the 1961
United Nations Convention on the Reduction of
Statelessness under which a foundling is presumed born
of citizens of the country where he is found.
That the Philippines is not a party to the 1930 Hague
Convention nor to the 1961 Convention on the Reduction
of Statelessness does not mean that their principles are
not binding. While the Philippines is not a party to the 1930
Hague Convention, it is a signatory to the Universal
Declaration on Human Rights, Article 15(1) of which
effectively affirms Article 14 of the 1930 Hague
Convention. Article 2 of the 1961 "United Nations
Convention on the Reduction of Statelessness" merely
"gives effect" to Article 15(1) of the UDHR.
Adopting these legal principles from the 1930 Hague
Convention and the 1961 Convention on Statelessness is
rational and reasonable and consistent with the jus
sanguinis regime in our Constitution. The presumption of
natural-born citizenship of foundlings stems from the
presumption that their parents are nationals of the
Philippines.
In Poe vs. COMELEC, the Supreme Court also clarified
that repatriation under RA 9225 is not naturalization. Thus,
former Filipino citizens who applied for repatriation
reacquire their status prior to their naturalization as a
foreigner. Since Grace Poe is a natural-born Filipino
before she became an American citizen, her repatriation
under RA 9225 has the effect of restoring her former
status as a natural-born Filipino.
CABALLERO vs. COMELEC
FACTS: Petitioner Cabellero and private Nanud, Jr. were
both candidates for the mayoralty position of the
Municipality of Uyugan, Province of Batanes in the May
13, 2013 elections. Private respondent filed a Petition to
deny due course to or cancellation of petitioner's certificate
of candidacy alleging that the latter made a false
representation when he declared in his COC that he was
eligible to run for Mayor of Uyugan, Batanes despite being
a Canadian citizen and a non-resident thereof.
Petitioner argued that prior to the filing of his COC, he took
an Oath of Allegiance to the Republic of the Philippines
before the Philippine Consul General in Toronto, Canada
on September 13, 2012 and became a dual Filipino and
Canadian citizen pursuant to Republic Act (RA) No. 9225,
otherwise known as the Citizenship Retention and
Reacquisition Act of 2003. The petitioner also asserted
that he did not lose his domicile of origin in Uyugan,
Batanes despite becoming a Canadian citizen as he
merely left Uyugan temporarily to pursue a brighter future
for him and his family.
ISSUE: Other than restoring Philippine citizenship, does
repatriation under RA 9225 also restore the domicile of
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origin of the repatriated citizen?
RULING: No. It is a settled rule that naturalization in a
foreign country may result in an abandonment of domicile
in the Philippines. In the case at bar, the petitioner‘s
permanent resident status is required for the acquisition of
Canadian citizenship. Hence, petitioner had effectively
abandoned his domicile in the Philippines and transferred
his domicile of choice in Canada. His frequent visits to
Uyugan, Batanes during his vacation from work in Canada
cannot be considered as waiver of such abandonment.
Q: What is the effect of petitioner's retention of his
Philippine citizenship under RA No. 9225 on his residence
or domicile?
A: No effect.
RA No. 9225, which is known as the Citizenship Retention
and Reacquisition Act of 2003, declares that natural-born
citizens of the Philippines, who have lost their Philippine
citizenship by reason of their naturalization as citizens of a
foreign country, can re-acquire or retain his Philippine
citizenship under the conditions of the law. The law does
not provide for residency requirement for the reacquisition
or retention of Philippine citizenship; nor does it mention
any effect of such reacquisition or retention of Philippine
citizenship on the current residence of the concerned
natural-born Filipino.
RA No. 9225 treats citizenship independently of residence.
This is only logical and consistent with the general intent of
the law to allow for dual citizenship. Since a natural-born
Filipino may hold, at the same time, both Philippine and
foreign citizenships, he may establish residence either in
the Philippines or in the foreign country of which he is also
a citizen. However, when a natural-born Filipino with dual
citizenship seeks for an elective public office, residency in
the Philippines becomes material.
Petitioner's reacquisition of his Philippine citizenship under
Republic Act No. 9225 had no automatic impact or effect
on his residence/domicile. Hence, petitioner's retention of
his Philippine citizenship under RA No. 9225 did not
automatically make him regain his residence in Uyugan,
Batanes. He must still prove that after becoming a
Philippine citizen on September 13, 2012, he had
reestablished Uyugan, Batanes as his new domicile of
choice which is reckoned from the time he made it as
such.
Naturalized Citizens
Among those listed in the 1987 Constitution as citizens are
those who are Filipinos by naturalization, which refers to
the legal act of adopting an alien and clothing him with the
privilege of a citizen.
Naturalization proceedings
Under the present laws, the process of naturalization can
be:
1. judicial or
2. administrative
Judicial naturalization
Judicially, C.A. No. 473 or The Revised Naturalization Law
provides that after hearing the petition for citizenship and
receipt of evidence showing that the petitioner has all the
qualifications and none of the disqualifications required by
law, the competent court may order the issuance of the
18 CONSTITUTIONAL LAW I REVIEW TSN
proper naturalization certificate and the registration thereof
in the proper civil registry.
The substantial requirements (ARCPEN) under judicial
naturalization include:
1. Age
2. Residency
3. Character
4. Property
5. Education and
6. Not otherwise disqualified by law
For property requirement, the case of Republic vs.
Karbasi (2015) is instructive.
REPUBLIC vs. KARBASI
Jurisprudence dictates that in judicial naturalization, the
application must show substantial and formal compliance
with the law. In other words, an applicant must comply with
the jurisdictional requirements; establish his or her
possession of the qualifications and none of the
disqualifications enumerated under the law; and present at
least two (2) character witnesses to support his
allegations. Section 2 of the Naturalization Law clearly
sets forth the qualifications that must be possessed by any
applicant, viz:
Section 2. Qualifications. - Subject to section four of this
Act, any person having the following qualifications may
become a citizen of the Philippines by naturalization:
First. He must be not less than twenty-one years of age on
the day of the hearing of the petition;
Second. He must have resided in the Philippines for a
continuous period of not less than ten years;
Third. He must be of good moral character and believes in
the principles underlying the Philippine Constitution, and
must have conducted himself in a proper and
irreproachable manner during the entire period of his
residence in the Philippines in his relation with the
constituted government as well as with the community in
which he is living.
Fourth. He must own real estate in the Philippines worth
not less than five thousand pesos, Philippine currency, or
must have some known lucrative trade, profession, or
lawful occupation;
Fifth. He must be able to speak and write English or
Spanish and any one of the principal Philippine languages;
Sixth. He must have enrolled his minor children of school
age, in any of the public schools or private schools
recognized by the Office of Private Education of the
Philippines, where the Philippine history, government and
civics are taught or prescribed as part of the school
curriculum, during the entire period of the residence in the
Philippines required of him prior to the hearing of his
petition for naturalization as Philippine citizen. (CA 473)
FACTS: Karbasi, an Iranian and registered refugee, filed
for naturalization with the RTC. This was opposed by the
OSG on the ground that Karbasi has no lucrative income.
Based on a government data relied upon by the OSG, the
Annual Income and Expenditure in Western Mindanao
shows that the average income for the year 2000 was
P86,135.00 and for 2003 was P93,000.00. This shows that
Karbasi's declared gross income amounting to P21, 868
was way below the average income and average
expenses in Western Mindanao, the region where Dipolog
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City, his residence, is located.
Karbasi argued that the analysis of the OSG with respect
to the data on Annual Income and Expenditure in Western
Mindanao is misplaced. Firstly, the data presented were
merely statistical and not actual, and did not reflect the
circumstances relative to a specific subject or person.
Hence, these are greatly unreliable with respect to a
specific person in a naturalization case. At best, it was
only intended for the purpose it was made - for planning
and for policy making of the government and not to
determine whether a certain trade, occupation or income is
lucrative or not.
ISSUE: Can the possession of an applicant's lucrative
trade, profession or lawful occupation, for purposes of
naturalization, be fairly determined through a simplistic
read-through on government data?
RULING: No. The Court finds it difficult to agree with the
OSG's meager use of government data to prove that
Karbasi would become a burden to the Philippine society
in the future. Except for its own citation of government
data, nothing else was presented to establish that Karbasi
had indeed no lucrative income or trade to support himself
and his family.
To accept the OSG's logic is a dangerous precedent that
would peg the compliance to this requirement in the law to
a comparison with the results of research, the purpose of
which is unclear. This is not to say that the data produced
by government research are inappropriate, or much less
irrelevant in judicial proceedings. The plain reliance on this
research information, however, may not be expected to
produce the force of logic which the OSG wants to attain in
this case. Besides, had the law intended for government
data on livelihood and income research to be used as a
gauge for the "lucrative income" requirement, it must have
stated the same and foreclosed the Court's power to
assess existing facts in any given case. Here, the Court
opts to exercise this power and delve into a judicious
review of the findings of the RTC and the CA and, as
explained, to rule that Karbasi, possesses a lucrative
income and a lawful occupation, as required by the
Naturalization Law.
The economic qualification for naturalization may be seen
to embody the objective of ensuring that the petitioner
would not become a public charge or an economic burden
upon society. The requirement relates, in other words, not
simply to the time of execution of the petition for
naturalization but also to the probable future of the
applicant for naturalization.
DOCTRINE: The property requirement is not actually
based on how much you have or how much you earn. It is
whether or not you will be a burden to the State if and
when you become a citizen.
The character requirement, which must be proved by at
least two credible witnesses, is at issue in the case of Go
vs. Republic (2014).
GO VS. REPUBLIC
Under CA 473, an applicant for naturalization must comply
with the jurisdictional requirements, establish his or her
possession of the qualifications and none of the
disqualifications enumerated under the law, and present at
least two (2) character witnesses to support his
allegations.
In vouching for the good moral character of the applicant
for citizenship, a witness, for purposes of naturalization,
must be a ―credible‖ person as he becomes an insurer of
CONSTITUTIONAL LAW I REVIEW TSN 19
the character of the candidate. What must be ―credible‖ is
not the declaration made, but the person making it. This
implies that such person must have a good standing in the
community; that he is known to be honest and upright; that
he is reputed to be trustworthy and reliable; and that his
word may be taken on its face value, as a good warranty
of the worthiness of the petitioner.
In Lim Ching Tian v. Republic, the Court explained that the
―law requires that a vouching witness should have actually
known an applicant for whom he testified for the requisite
period prescribed therein to give him the necessary
competence to act as such. The reason behind this
requirement is that a vouching witness is in a way an
insurer of the character of petitioner because on his
testimony the court is of necessity compelled to rely in
deciding the merits of his petition. It is, therefore,
imperative that he be competent and reliable. And he is
only competent to testify on his conduct, character and
moral fitness if he has had the opportunity to observe him
personally, if not intimately, during the period he has
allegedly known him.‖
The law, in effect, requires that the character witnesses be
not mere ordinary acquaintances of the applicant, but
possessed of such intimate knowledge of the latter as to
be competent to testify of their personal knowledge; and
that they have each one of the requisite qualifications and
none of the statutory disqualifications.
Under CA 473, an applicant is disqualified if he is a citizen
or subject of a foreign country other than the United States
whose laws do not grant Filipinos the right to become
naturalized citizens or subjects thereof. If there is no
reciprocity, then the application will be denied.
Going back to the case of Republic vs. Karbasi…
REPUBLIC VS. KARBASI
FACTS: The OSG opposed Karbasi‘s application for
naturalization on the ground that there is no reciprocity.
The laws of Iran do not provide for naturalization of Filipino
citizens wanting to become Iranians.
ISSUE: Is the requirement of reciprocity applicable to a
refugee registered under the United Nations High
Commissioner for Refugees (UNHCR)?
RULING: No. The Court does not need to belabor the
issue on reciprocity between Iranian and Philippine laws
on naturalization. True, the Naturalization Law disqualifies
citizens or subjects of a foreign country whose laws do not
grant Filipinos the right to become naturalized citizens or
subjects. A perusal of Karbasi's petition, both with the RTC
and the CA, together with his supplemental pleadings filed
with the Court, however, reveals that he has successfully
established his refugee status upon arrival in the
Philippines. In effect, the country's obligations under its
various international commitments come into operation.
Article 7 of the 1951 Convention relating to the Status of
Refugees, to which the Philippines is a signatory,
expressly provides exemptions from reciprocity, while
Article 34 states the earnest obligation of contracting
parties to "as far as possible facilitate the assimilation and
naturalization of refugees."
In addition to the substantial requirements, Section 5 of
CA 473 provides that one year prior to the filing of his
petition for admission to Philippine citizenship, the
applicant for Philippine citizenship shall file with the
Bureau of Justice a declaration under oath that it is bona
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4-MANRESA 2017-2018
fide his intention to become a citizen of the Philippines
(Declaration of Intention).
REPUBLIC vs. LI CHING CHUNG
FACTS: The petition for naturalization was filed seven
months after the filing of the Declaration of Intention.
ISSUE: Whether or not the filing of the petition for
naturalization before the expiration of the one-year period
is fatal.
RULING: Yes. The period of one year from the filing of
Declaration of Intention is the time fixed for the State to
make inquiries as to the qualifications of the applicant. If
this period of time is not given to it, the State will have no
sufficient opportunity to investigate the qualifications of the
applicants and gather evidence thereon.
The period is designed to give the government ample time
to screen and examine the qualifications of an applicant
and to measure the latter‘s good intention and sincerity of
purpose. Simply put, the waiting period will unmask the
true intentions of those who seek Philippine citizenship for
selfish reasons alone, such as, but not limited to, those
who are merely interested in protecting their wealth, as
distinguished from those who have truly come to love the
Philippines and its culture and who wish to become
genuine partners in nation building.
The law is explicit that the declaration of intention must be
filed one year prior to the filing of the petition for
naturalization. Stated otherwise, it is mandatory that the
filing of the petition for naturalization must be made after
the expiration of the one-year period reckoned from the
time the Declaration of Intention is filed.
OTHER ISSUE: Is there an exception to the mandatory
filing of a Declaration of Intention?
RULING: Yes. Under Section 6 of CA 473, the following
persons may be naturalized without having to make a
declaration of intention upon complying with the other
requirements of this Act:
1. Those born in the Philippines and have received their
primary and secondary education in public schools or
those recognized by the Government and not limited to
any race or nationality; and
2. Those who have resided continuously in the Philippines
for a period of thirty years or more before filing their
application.
After the filing of the petition, there is publication, notice
and hearing, presentation of evidence, and then the
decision. When the decision is favorable, there will be no
automatic grant of Philippine citizenship. There shall be a
two-year waiting period, the purpose of which is for the
State to verify that the applicant continues to possess the
qualifications and none of the disqualifications.
After the two-year period, there will be a summary hearing
to determine whether the applicant should be granted a
naturalized status. This is followed by the cancellation of
the applicant‘s Alien Certificate of Registration and the
issuance of the Certificate of Naturalization.
REPUBLIC VS BATUIGAS
ISSUE: Is there a proceeding under Philippine laws for the
declaration of citizenship? In other words, can you file a
petition for the court to declare that you are a Filipino
Citizen?
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RULING: No, you cannot. There is no proceeding
authorized by the law or by the Rules of Court for the
judicial declaration of the citizenship of an individual.
This case however is not a Petition for Judicial Declaration
of Philippine Citizenship but rather a Petition for Judicial
Naturalization under CA 473. In the first, the petitioner
believes he is a Filipino citizen and asks a court to declare
or confirm his status as a Philippine citizen. In the second,
the petitioner acknowledges he is an alien, and seeks
judicial approval to acquire the privilege of becoming a
Philippine citizen based on requirements required under
CA 473.
GR: The Court cannot declare one‘s citizenship via a
voluntary Petition for the Declaration of Philippine
Citizenship. There is no such proceeding.
XPN: The only time the Court declares one‘s Philippine
citizenship is when there is:
1. a petition for judicial naturalization (because the
court determines whether or not the applicant is
qualified to be a naturalized Filipino)
2. an issue raised in relation to a qualification (this
involves public offices that require the official to
be a natural-born Filipino)
Effect of Naturalization on the Wife
If the wife is a Filipino citizen, there is no effect. However,
if the wife is an alien, is legally married to the naturalized
husband, and does not suffer from any of the
disqualifications in Sec. 4, she is entitled to be declared a
citizen as well. What is required is only an administrative
proceeding before the Bureau of Immigration for the
cancellation of her Alien Certificate of Registration on the
ground that her husband has been recently naturalized.
According to Moya Lim Yao vs. The Commissioner of
Immigration (41 SCRA 292) ruling, under Section 15 of
Commonwealth Act 473, an alien woman marrying a
Filipino, native born or naturalized, becomes ipso facto a
Filipina provided she is not disqualified to be a citizen of
the Philippines under Section 4 of the same law. Likewise,
an alien woman married to an alien who is subsequently
naturalized here follows the Philippine citizenship of her
husband the moment he takes his oath as Filipino citizen,
provided that she does not suffer from any of the
disqualifications under said Section 4. She need not prove
the qualifications, but only that she is not disqualified.
Note that the rule on becoming ipso facto a Filipino upon
the naturalization of the spouse is only applicable when it
involves an alien wife and a naturalized Filipino husband.
Here, the wife follows the Philippine citizenship of her
naturalized husband provided she is not disqualified by
law. What if it is the reverse?
When it involves an alien husband and a naturalized
Filipina wife, the husband does not become ipso facto a
Filipino upon the naturalization of his wife, even if he
possesses none of the disqualifications provided by law.
Since there is no automatic grant of Philippine citizenship,
the alien husband still needs to file a Petition for Judicial
Naturalization but because of his marriage to a Filipina,
the 10-year residency requirement under CA 473 is
reduced to 5 years.
Effect of Naturalization on the Children
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Minor children of persons naturalized under this law who
have been born in the Philippines shall be considered
citizens thereof.
A foreign born minor child, if dwelling in the Philippines at
the time of the naturalization of the parent, shall
automatically become a Philippine citizen and a foreign-
born minor child, who is not in the Philippines at the time
the parent is naturalized, shall be deemed a Philippine
citizen only during his minority, unless he begins to reside
permanently in the Philippines when still a minor, in which
case, he will continue to be a Philippine citizen even after
becoming of age.
A child born outside of the Philippines after the
naturalization of his parents, shall be considered a
Philippine citizen, unless within one year after reaching the
age of majority, he fails to register himself as a Philippine
citizen at the Philippine Consulate of the country where he
resides, and to take the necessary oath of allegiance.
To simplify the effect of naturalization on the children:
I. If the child is of age, no effect.
II. If the child is a minor:
A. If born in the Philippines - automatically becomes
a citizen upon the naturalization of the father.
B. If born abroad
1. Before the naturalization of the father.
a. If residing in the Philippines at the time of
naturalization - automatically becomes a
citizen.
b. If not residing in the Philippines at the time
of naturalization - considered citizen only
during his minority, unless he takes
permanent residence in the Philippines
before reaching majority age. In other words,
he continues to be a Filipino after reaching
the age of majority only if he decides to
reside here permanently before reaching that
age.
2. After the naturalization of the father -
considered citizen on the condition that upon
reaching the age of majority, he takes an oath of
allegiance in the Philippine consulate of the place
where he may be. If he fails to register his intent
to continue as Filipino within one (1) year upon
reaching the age of majority, he ceases to be a
Filipino citizen.
Administrative naturalization
Republic Act No. 9139 (The Administrative Naturalization
Law of 2000) provides that aliens born and residing in the
Philippines may be granted Philippine citizenship by
administrative proceeding by filing a petition for citizenship
with the Special Committee of the DOJ, which, in view of
the facts before it, may approve the petition and issue a
certificate of naturalization.
ART IV Section 3. Qualifications. - Subject to the
provisions of the succeeding section, any person desiring
to avail of the benefits of this Act must meet the following
qualifications:
(a) The applicant must be born in the Philippines and
residing therein since birth;
CONSTITUTIONAL LAW I REVIEW TSN 21
(b) The applicant must not be less than eighteen (18)
years of age, at the time of filing of his/her petition;
(c) The applicant must be of good moral character and
believes in the underlying principles of the Constitution,
and must have conducted himself/herself in a proper and
irreproachable manner during his/her entire period of
residence in the Philippines in his relation with the duly
constituted government as well as with the community in
which he/she is living;
(d) The applicant must have received his/her primary and
secondary education in any public school or private
educational institution dully recognized by the Department
of Education, Culture and Sports, where Philippine history,
government and civics are taught and prescribed as part
of the school curriculum and where enrollment is not
limited to any race or nationality: Provided, That should
he/she have minor children of school age, he/she must
have enrolled them in similar schools;
(e) The applicant must have a known trade, business,
profession or lawful occupation, from which he/she derives
income sufficient for his/her support and if he/she is
married and/or has dependents, also that of his/her family:
Provided, however, That this shall not apply to applicants
who are college degree holders but are unable to practice
their profession because they are disqualified to do so by
reason of their citizenship;
(f) The applicant must be able to read, write and speak
Filipino or any of the dialects of the Philippines; and
(g) The applicant must have mingled with the Filipinos and
evinced a sincere desire to learn and embrace the
customs, traditions and ideals of the Filipino people. (RA
9139)
As a summary, the following are the substantial
requirements in administrative naturalization:
1. Age
2. Residence (since birth)
Note that in judicial naturalization, the residency
requirement is 10 or 5 years (in certain cases).
But in administrative naturalization, the applicant
must be residing in the Philippines since birth.
Thus, applying RA 6809 (An Act Lowering the
Age of Majority from 21 to 18 Years, Amending
for the Purpose EO 209, And for Other
Purposes), the applicant must be a resident for at
least 18 years since birth.
3. Character
4. Property
In judicial naturalization, the property requirement
includes ownership of a real estate amounting to
not less than P5000, or gainful employment. In
administrative naturalization, there is no more
real estate with a value of at least P5000. What is
merely required is gainful employment.
5. Education
In judicial naturalization, only the minor children
are required to attend to an educational institution
not limited to any race or nationality. But in
administrative naturalization, in addition to the
minor children, the applicant himself must also
attend to such school.
6. Not otherwise disqualified by law
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4-MANRESA 2017-2018
Denaturalization
This simply refers to the cancellation or the revocation of
the Certificate of Naturalization.
Section 18. Cancellation of naturalization certificate
issued - Upon motion made in the proper proceedings by
the Solicitor General or his representative, or by the proper
provincial fiscal, the competent judge may cancel the
naturalization certificate issued and its registration in the
Civil Registry:
(a) If it is shown that said naturalization certificate was
obtained fraudulently or illegally;
(b) If the person naturalized shall, within the five years
next following the issuance of said naturalization
certificate, return to his native country or to some foreign
country and establish his permanent residence there:
Provided, that the fact of the person naturalized remaining
for more than one year in his native country or the country
of his former nationality, or two years in any other foreign
country, shall be considered as prima facie evidence of his
intention of taking up permanent residence in the same;
(c) If the petition was made on an invalid declaration of
intention;
(d) If it is shown that the minor children of the person
naturalized failed to graduate from a public or private high
schools of the Philippines, where Philippine history,
government and civics are taught as part of the school
curriculum through the fault of their parents either by
neglecting to support them or by transferring them to
another school or schools (not when they dropped out
because of scholastic performance). A certified copy of the
decree cancelling the naturalization certificate shall be
forwarded by the clerk of the Court to the Office of the
President and the Solicitor-General;
(e) If it is shown that the naturalized citizen has allowed
himself to be used as a dummy in violation of the
Constitutional or legal provision requiring Philippine
citizenship, as a requisite for the exercise, use or
enjoyment of a right, franchise or privilege.
Loss and Reacquisition of Citizenship
COMMONWEALTH ACT No. 63
(AN ACT PROVIDING FOR THE WAYS IN WHICH
PHILIPPINE CITIZENSHIP MAY BE LOST OR
REACQUIRED)
Section 1. How citizenship may be lost. – A Filipino
citizen may lose his citizenship in any of the following
ways and/or events:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining
twenty-one years of age or more: Provided, however, That
a Filipino may not divest himself of Philippine citizenship in
any manner while the Republic of the Philippines is at war
with any country;
(4) By rendering services to, or accepting commission in,
the armed forces of a foreign country: Provided, That the
rendering of service to, or the acceptance of such
commission in, the armed forces of a foreign country, and
22 CONSTITUTIONAL LAW I REVIEW TSN
the taking of an oath of allegiance incident thereto, with
the consent of the Republic of the Philippines, shall not
divest a Filipino of his Philippine citizenship if either of the
following circumstances is present:
(a) The Republic of the Philippines has a defensive and/or
offensive pact of alliance with the said foreign country; or
(b) The said foreign country maintains armed forces on
Philippine territory with the consent of the Republic of the
Philippines: Provided, That the Filipino citizen concerned,
at the time of rendering said service, or acceptance of said
commission, and taking the oath of allegiance incident
thereto, states that he does so only in connection with his
service to said foreign country: And provided, finally, That
any Filipino citizen who is rendering service to, or is
commissioned in, the armed forces of a foreign country
under any of the circumstances mentioned in paragraph
(a) or (b), shall not be permitted to participate nor vote in
any election of the Republic of the Philippines during the
period of his service to, or commission in, the armed
forces of said foreign country. Upon his discharge from the
service of the said foreign country, he shall be
automatically entitled to the full enjoyment of his civil and
political rights as a Filipino citizen;
(5) By cancellation of the of the certificates of
naturalization;
(6) By having been declared by competent authority, a
deserter of the Philippine armed forces in time of war,
unless subsequently, a plenary pardon or amnesty has
been granted; and
(7) In the case of a woman, upon her marriage to a
foreigner if, by virtue of the laws in force in her husband's
country, she acquires his nationality.
th
Take note that under the 1987 Constitution, the 7 ground
or the marriage of a Filipina to a foreigner is no longer a
ground to lose Philippine citizenship. But under the 1935
Constitution, the mere marriage to a foreigner husband
would mean that the Filipina has lost her Philippine
citizenship.
Q: In relation to this, may a child born of Filipino mother
and foreigner father under the 1935 Constitution be
allowed to elect Philippine citizenship upon reaching the
age of majority?
A: We must distinguish. When the Filipino mother has not
yet been naturalized when the child was conceived, then
the law may allow the child to elect Philippine citizenship
upon reaching the age of majority. In this case, there is still
a ―Filipino mother‖ to speak of. This also applies even if at
the time of the conception of the child, the Filipino mother
has filed for naturalization but the same has not yet
attained finality.
However, when the Filipino mother has been fully
naturalized upon the child‘s conception, then there is no
more Filipino mother to talk about. As such, the child
cannot elect Philippine citizenship upon reaching the age
of majority.
Reacquisition of Citizenship
COMMONWEALTH ACT No. 63
(AN ACT PROVIDING FOR THE WAYS IN WHICH
PHILIPPINE CITIZENSHIP MAY BE LOST OR
REACQUIRED)
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Section 2. How citizenship may be reacquired. –
Citizenship may be reacquired:
(1) By naturalization: Provided, That the applicant possess
none of the disqualification's prescribed in section two of
Act Numbered Twenty-nine hundred and twenty-seven,3
(2) By repatriation of deserters of the Army, Navy or Air
Corp: Provided, That a woman who lost her citizenship by
reason of her marriage to an alien may be repatriated in
accordance with the provisions of this Act after the
termination of the marital status; and
(3) By direct act of the National Assembly.
Modes of Reacquiring Philippine citizenship:
1. Naturalization
2. Repatriation
3. Direct Act of Congress
Repatriation laws:
1. CA 63
Repatriation under CA 63 has a very limited
applicability. This is only available to deserters of the
Armed Forces and Filipino woman who lost her
Philippine citizenship by mere marriage to a foreigner
husband.
2. PD 725
In addition to CA 63, Presidential Decree No. 725 was
passed, providing for repatriation of Filipino women who
had lost their Philippine citizenship by marriage to aliens,
and of natural born Filipinos. The said law paved the way
for the creation of a Special Committee on Naturalization.
3. RA 8171
REPUBLIC ACT 8171
(AN ACT PROVIDING FOR THE REPATRIATION OF
FILIPINO WOMEN WHO HAVE LOST THEIR
PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS
AND OF NATURAL-BORN FILIPINOS)
Section 1. Filipino women who have lost their Philippine
citizenship by marriage to aliens and natural-born Filipinos
who have lost their Philippine citizenship, including their
minor children, on account of political or economic
necessity, may reacquire Philippine citizenship through
repatriation in the manner provided in Section 4 of
Commonwealth Act No. 63, as amended.
This law on repatriation is also reserved to two types of
individuals:
a. Filipino women who have lost their Philippine
citizenship by marriage to aliens
b. Natural-born Filipinos who have lost their
Philippine citizenship, including their minor
children, on account of political or economic
necessity
Under Section 2 of RA 8171, repatriation shall be effected
by taking the necessary oath of allegiance to the Republic
of the Philippines and registration in the proper civil
registry and in the Bureau or Immigration. The Bureau of
Immigration shall thereupon cancel the pertinent alien
certificate of registration and issue the certificate of
identification as Filipino citizen to the repatriated citizen.
4. RA 9225
CONSTITUTIONAL LAW I REVIEW TSN 23
REPUBLIC ACT 9225
(CITIZENSHIP RETENTION AND RE-ACQUISITION ACT
OF 2003)
Section 3. Retention of Philippine Citizenship - Any
provision of law to the contrary notwithstanding, natural-
born citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have
re-acquired Philippine citizenship upon taking the following
oath of allegiance to the Republic:
xxx
Natural born citizens of the Philippines who, after the
effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the
aforesaid oath.
Repatriation is not an act to perfect Philippine citizenship.
Section 5. Civil and Political Rights and Liabilities -
Those who retain or re-acquire Philippine citizenship under
this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under
existing laws of the Philippines and the following
conditions:
(1) Those intending to exercise their right of surffrage must
Meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as
"The Overseas Absentee Voting Act of 2003" and other
existing laws;
(2) Those seeking elective public in the Philippines shall
meet the qualification for holding such public office as
required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to
administer an oath;
(3) Those appointed to any public office shall subscribe
and swear to an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to their
assumption of office: Provided, That they renounce their
oath of allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any
public office in the Philippines cannot be exercised by, or
extended to, those who:
(a) are candidates for or are occupying any public office in
the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the country
which they are naturalized citizens. (RA 9225)
When one seeks to run for public elective office, RA 9225
provides for an additional requirement. At the time of the
filing of the certificate of candidacy, the repatriated citizen
must make a personal and sworn renunciation of any and
all foreign citizenship before any public officer authorized
to administer an oath.
MAQUILING VS COMELEC
FACTS: After being granted the benefits under RA 9225,
Arnado travelled abroad using his foreign passport,
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
thereby representing himself as a foreign national.
ISSUE: Whether or not the use of a foreign passport after
renouncing foreign citizenship affects one‘s qualifications
to run for public office.
RULING: Yes. The requirement of renunciation of any and
all foreign citizenship, when read together with Section
40(d) of the Local Government Code which disqualifies
those with dual citizenship from running for any elective
local position, indicates a policy that anyone who seeks to
run for public office must be solely and exclusively a
Filipino citizen. To allow a former Filipino who reacquires
Philippine citizenship to continue using a foreign passport
– which indicates the recognition of a foreign state of the
individual as its national – even after the Filipino has
renounced his foreign citizenship, is to allow a complete
disregard of this policy. Allowing the subsequent use of a
foreign passport because it is convenient for the person to
do so is rendering the oath of renunciation a hollow act. It
devalues the act of taking of an oath, reducing it to a mere
ceremonial formality.
While the act of using a foreign passport is not one of the
acts enumerated in Commonwealth Act No. 63 constituting
renunciation and loss of Philippine citizenship, it is
nevertheless an act which repudiates the very oath of
renunciation required for a former Filipino citizen who is
also a citizen of another country to be qualified to run for a
local elective position.
Simply put, the use of foreign passport after renouncing
one‘s foreign citizenship is a positive and voluntary act of
representation as to one‘s nationality and citizenship. It
does not divest Filipino citizenship regained by repatriation
but it recants the Oath of Renunciation required to qualify
one to run for an elective position.
By representing himself as an American citizen through
the use of a foreign passport, Arnado voluntarily and
effectively reverted to his earlier status as a dual citizen,
which disqualifies him from running for an elective office.
If it involves an appointive office, there must be a sworn
renunciation of any and all foreign allegiances.
Q: Can a person of dual citizenship be appointed to a
public office?
A: Seemingly, the answer is yes because what is required
to be renounced is allegiance, not citizenship.
MERCADO VS. MANZANO
Dual citizenship is different from dual allegiance. The
former arises when, as a result of the concurrent
application of the different laws of two or more states, a
person is simultaneously considered a national by the said
states. For instance, such a situation may arise when a
person whose parents are citizens of a state which
adheres to the principle of jus sanguinis is born in a state
which follows the doctrine of jus soli. Such a person, ipso
facto and without any voluntary act on his part, is
concurrently considered a citizen of both states.
Dual allegiance, on the other hand, refers to the situation
in which a person simultaneously owes, by some positive
act, loyalty to two or more states. While dual citizenship is
involuntary, dual allegiance is the result of an individual‘s
volition.
With respect to dual allegiance, Article IV, 5 of the
Constitution provides: Dual allegiance of citizens is
inimical to the national interest and shall be dealt with by
24 CONSTITUTIONAL LAW I REVIEW TSN
law.
July 18, 2017 S.Abalorio
D. Sovereignty
Sovereign Immunity
The discussion in sovereignty is sovereign immunity from
suit. You all remember that the discussion on Sovereign
Immunity from suit speaks of a case or a suit. Regardless
of the main defendant, even if there‘s an enumeration of
who the defendant should be.
When is a suit against the State?
1. The Republic is sued by name;
2. An unincorporated government entity is sued
3. A public officer is sued in his official capacity where
ultimate liability will rest upon the state.
The common characterization of these or any of these
cases, regardless of who the main defendant is, is that,
ultimate financial liability will rest upon the state. And
because no money shall be paid or public funds shall be
paid from the public treasury except through an
appropriation then the immunity principle will apply.
The constitutional provision that the state will not be sued
without its consent is not a grant of state immunity. The
provision in the constitution is a limitation on sovereign
immunity in saying that if there is consent then it can be
sued.
So if the case will not result into any financial liability, the
state immunity concept must not apply. Only when there is
a financial liability arising from an adverse judgment or
decision or ruling in a case.
Consent to be Sued
When is there a consent?
Consent must be express as a matter of rule or a matter of
law. You have CA 3083 an old but still good law. This is
your general law of consent on any money claims arising
from contracts express or implied. So any money claims
from any contract with the government you can use CA
3083 as your express consent.
Then you have your instances of implied consent.
Instances of implied consent have been by reason of
decisions made by the Supreme Court.
1. The first is when the state enters into a
business contract.
It is not the act of entering into a contract but rather what
the nature of the contract is. When the contract that is
entered into is in its governmental capacity then immunity
can‘t be waived. If it is entered into in its proprietary or
business capacity, then immunity is waived. So look into
the nature of the contract entered into rather than act of
entering into a contract.
The common bar questions would be on the state entering
into contracts for defense. The armed forces would be
entering into a contract with a foreign supplier for an
aircraft or warships for national defense. Delivery was
made and no full payment was made by the AFP. Can the
AFP be sued? It calls for the understanding of, ―What the
nature of the contract is‖ and ―Whether immunity applies‖.
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4-MANRESA 2017-2018
From 2015 tsn
It calls for the understanding of:
a. Whether state immunity applies
b. Is there consent
c. Assuming there‘s consent, can you make that
department liable?
d. If that department is liable, can you execute the
judgment?
2. It is inequitable to claim immunity.
If you notice all cases, almost all cases when it is
inequitable for the state to claim immunity is involving the
non-payment of just compensation. When the state
expropriates property without going through expropriation
proceedings the property owner has the right to demand
payment and pursue the state for the payment of just
compensation.
What do you call that action to claim? Payment for unpaid
just compensation? It is referred to as inverse
condemnation. Does the action for inverse condemnation
prescribe? The answer is no. Because it is constitutionally
mandated that just compensation shall be paid upon
taking of private property for public use. So if the state has
actually commenced expropriation without going through
expropriation proceedings, an action for inverse
condemnation can be filed, which does not prescribe, by
the property owner. The property owner must be paid and
no need for express consent because it is inequitable for
the state to claim immunity from suit.
3. When the state commences a complaint it is
open to a counterclaim.
It is under the theory that the state has is considered to
have descended to the level of an ordinary party to a case
and therefore opened itself to any counterclaim. Actually
that provision is found under CA 3083. If the state
commences an action it is open to a counterclaim by a
private party.
It is supposed to end there but because of the concept of
immunity affecting officers, there are also certain
considerations on immunity where it involves public
officers. When you say public officers, we refer to:
1. Specific officers of the Philippines in the
country.
a. With respect to impeachable officers. They are
immune, not because they are considered
immune under the state immunity concept. They
are immune because they are impeachable
officers. Any case cannot be filed against them,
this would effectively remove them from office,
without impeaching them first. So the immunity of
these set of officers is limited only when the case
will effectively or would effectively remove them
from office that they can claim immunity. Again,
not because of state immunity but because they
are impeachable officers.
b. Then we have immunity of the president. In our
jurisdiction we understand that the sitting
president is immune from any and all kinds of
cases. That is why our current president is
cursing our Lord. Because he knows he is
immune from suit. Those under him, like PNP
Chief Bato, could not do that. So only the sitting
president. The sitting president of the Philippines
is immune from any and all types of cases, not
only those which effectively removes him from
CONSTITUTIONAL LAW I REVIEW TSN 25
office being an impeachable officer. His immunity
is absolute. He cannot be removed or be sued
during his term. He can also not be sued after his
term for all the effects of his official conduct. We
know that, that protection is extended to him so
that he will not refuse to act in the meantime for
fear that he would be subject to any case after his
term is over.
So that is the extent of the President‘s immunity:
i. First, under state immunity as a public
officer sued in his official capacity.
ii. Also, he can claim immunity as an
impeachable officer.
iii. Finally, the full immunity as a sitting
president.
We shall go to the rest of the other officers later.
2. Specific officers of foreign governments in
the country.
- no discussion -
Efficacy of consent
Consent is valid from the time the case is filed up to the
time the case is decided. It cannot go beyond the decision
up to the stage of execution.
NHA vs. ROXAS
Q: Is NHA suable?
A: Yes. But any judgment against NHA cannot be
executed by an ordinary writ of execution because consent
is only valid from the institution up to the rendition of the
decision. It cannot go beyond up to execution. In NHA,
which is also consistent of CA 3083, the money judgment
must have to be presented to the COA. Because COA is
authorized as well to settle any and all claims of the
government. If COA says there is funds, then you will be
paid. If COA says, there are no funds, then your decision
may be (not should be) included in the proposed
appropriations for next year so that you can be funded in
the general appropriations act and your money judgment
can be paid accordingly. It cannot be executed as if it were
an ordinary judgment.
FT: There is no question that the NHA could sue or be
sued, and thus could be held liable under the judgment
rendered against it. But the universal rule remains to be
that the State, although it gives its consent to be sued
either by general or special law, may limit the claimant's
action only up to the completion of proceedings anterior to
the stage of execution. In other words, the power of the
court ends when the judgment is rendered because
government funds and property may not be seized
pursuant to writs of execution or writs of garnishment to
satisfy such judgments. The functions and public services
of the State cannot be allowed to be paralyzed or
disrupted by the diversion of public fund from their
legitimate and specific objects, and as appropriated by
law. The rule is based on obvious considerations of public
policy. Indeed, the disbursements of public funds must be
covered by the corresponding appropriation as required by
law.
Unincorporated vs Incorporated
The concept of unincorporated government entity
therefore distinguishes between a GOCC and other
government agencies or instrumentalities without charter
or not created or established under the Corporation Code.
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4-MANRESA 2017-2018
Meaning, they do not have a personality distinct and
separate from the government.
If it is incorporated, automatically it has a separate
personality from the government. Therefore, it can be
sued, because it has corporate power to sue and the
corresponding liability to be sued.
If it is unincorporated, then there has to be consent before
it can be sued.
Suability vs Liability
The distinction between suability and liability. The common
discussion in the cases, is that [in suability] if it is a suit
against the state there must have to be consent before the
defendant is suable. So suability is dependent on the
absence or presence of consent. If there is no consent, the
defendant is not suable. If there is consent, the defendant
may be sued.
Liability on the other hand is the determined by the
evidence presented and the applicable laws on the case at
hand. Even if the defendant is suable, it does not mean
that it is liable. Plaintiff must have to prove that the
defendant is liable based on the facts and evidence
presented and the law applicable to the case.
MERRITT vs. GOVERNMENT
The question there was whether PGH was suable. The SC
said, it is suable because there was a law authorizing Mr.
Merrit to sue. But is it liable? So there was a distinction
between performance of government functions and
performance of non-government functions and whether
there was negligence on the part of the employee of the
government agency. So liability depends on the applicable
laws as well as the evidence presented and proven.
FT: It is therefore, evidence that the State is only liable for
the acts of its agents, officers and employees when they
act as special agents within the meaning of paragraph 5 or
Artticle 1903 and that the chauffeur of the ambulance of
the General Hospital was not such an agent.
According to paragraph 5 of Article 1903 of the Civil Coe,
the responsibility of the state is limited to that which it
contracts through a special agent, duly empowered by
definite order or commission to perform some act or
charged with some definite purpose which gives rise to the
claim, and not where the claim is based on acts or
omissions imputable to a public official charged with some
administrative or technical office who can be held to the
proper responsibility in the manner laid down by the law of
civil responsibility
Now with respect to foreign governments or foreign states.
The question is, ―Can they claim sovereign immunity in
Philippine courts?‖
The answer is YES. We follow the doctrine of
incorporation where generally accepted principles of
international law form part of the law of the land.
There are two ways which international law because part
of the law of the land:
1. Transformation – an international general legal
concept is made subject of a local legislation
thereby transforming that international generally
accepted legal concept into a local law.
26 CONSTITUTIONAL LAW I REVIEW TSN
2. Incorporation – we deem that to be incorporated
into our legal system.
Because immunity or equality among sovereigns is a
generally accepted principle we have incorporated that in
our legal system. So foreign states can claim immunity
from here.
Of course we follow the same characterization:
1. There must have to be the state named as
defendant.
2. An unincorporated foreign government entity is
sued. Or a foreign government is sued in his
official capacity where liability rests upon the
foreign state.
3. Any adverse decision will result to financial
liability on the part of the foreign state.
So if it does not involve any financial liability, then state
immunity cannot be applied.
ARIGO vs. SWIFT
This was a petition for a Writ of Kalikasan involving the
destruction of park of the Tubbataha Reef because the
avenger-class ruled as guardian of the US Navy has run
aground on that part of Tubbataha reef, it was coming
from Subic. So a petition for Writ of Kalikasan was issued.
The question was whether Swift was immune from suit
being the commander of the ship? And whether he is
covered by the state immunity concept?
Does a petition of Writ of Kalikasan involve any financial
liability?
Assuming it does (well it has, there is a fine there) Swift is
considered to be an officer of the US government and
therefore he could practically claim coverage from
immunity from suit.
FT: Immunity of foreign states from the jurisdiction of local
courts. The precept that a State cannot be sued in the
courts of a foreign state is a long-standing rule of
customary international law then closely identified with the
personal immunity of a foreign sovereign from suit and,
with the emergence of democratic states, made to attach
not just to the person of the head of state, or his
representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit arc
those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but
acting in his official capacity, the complaint could be
barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is
believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual
but for the State, in whose service he is, under the maxim
- par in parem, non habet imperium - that all states are
sovereign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the
judgment against an official would require the state itself to
perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages
decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally
impleaded.
In the case of diplomatic immunity, the privilege is not an
immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an
immunity from the exercise of territorial jurisdiction. The
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4-MANRESA 2017-2018
alleged act or omission resulting in the unfortunate
grounding of the USS Guardian on the TRNP was
committed while they were performing official military
duties. Considering that the satisfaction of a judgment
against said officials will require remedial actions and
appropriation of funds by the US government, the suit is
deemed to be one against the US itself. The principle of
State immunity therefore bars the exercise of jurisdiction
by this Court over the persons of respondents Swift, Rice
and Robling.
Sometimes it is called the royal prerogative of
dishonesty. When the foreign state claims immunity from
suit in the local jurisdiction and they are therefore not
suable. That has been asked in the Bar exam a few years
back.
Still in relation to or related to immunity of Non-
governmental organizations.
There are several cases in the Philippines where the SC
has decided as to whether these non-governmental
organizations are immune from the applicability of the laws
of the Philippines.
The general rule is that: we must look into the treaty
arrangements or agreements between the PH and those
contracting countries with respect to the existence of this
non-government international organization.
If they are strictly international organizations without PH
participation – the general rule is that they are NOT
IMMUNE.
But if the PH is a signatory to the establishment of the
international non-governmental organization the treaty
normally grants them immunity from the application of the
laws of the host country where they may be found. PH
may be one of them. As to that type of organization, the
UN and all other UN based organizations are exempt.
Because that is the intent when UN was established. That
they cannot be subject to the laws of the host country
where they may be found.
There have been old cases even after immediately the
establishment of the UN. World Health Organization
established their offices here, can they sued for non-
payment of rents? They cannot. Because we cannot apply
local laws as to them. Of course, it was just one case and
they would of course pay because they have money to pay
rents.
SEAFDEC vs. NLRC
Seafdec is not subject to the applicability of our local laws
because the intent of intergovernmental organizations or
international organizations is to exempt them from
applicability of the laws of the host country. To make them
independent from and not subject of control of one of the
contracting states to be aggrieved.
FT: Petitioner Southeast Asian Fisheries Development
Center-Aquaculture Department (SEAFDEC-AQD) is an
international agency b eyond the jurisdiction of public
respondent NLRC. Being an intergovernmental
organization, SEAFDEC including its Departments (AQD),
enjoys functional independence and freedom from control
of the state in whose territory its office is located.
Still in relation to public officers and immunity. There are
certain conventions which we have to remember.
CONSTITUTIONAL LAW I REVIEW TSN 27
1. VIENNA CONVENTION OF DIPLOMATIC
IMMUNITY OF 1961
It grants absolute community to:
a. Heads of state
b. Ambassadors
c. Heads of missions
d. Nuncios internuncios
e. Chargés d‘affaires
Absolute immunity from the applicability of the laws of the
host country where they are found. A few bar exams ago a
question was asked: Say an embassy of Italy was
assigned to New York on official mission. That
ambassador went to PH to Pagsanjan and was arrested
for paedophilia. Is he subject to the application of PH laws
on child molestation?
The answer is YES. Because the PH is not his official
station. They are ONLY immune from the applicability of
the laws of the host country where they are OFFICIALLY
stationed. Not in any other jurisdiction.
This is where the concept of persona non grata came
about. Since they cannot be prosecuted, detained or
imprisoned. They can be compelled to leave the host
country after they are declared as persona non grata in the
host country. Since they are no longer welcome to stay in
the host country they can be deported. That is the only
remedy in international law.
Local governments issuing resolutions declaring a person
persona non grata because of calling Davaoena females
as mukhang hipon. If that person comes to Davao, will he
be arrested? Will he not be accepted in any local hotel?
That is supposed to be a concept of international law. It
could not be used in local practices.
Representative Ruby of Ilocos, because there was a row
in the house investigating the tobacco fund in Ilocos
resulting to the detention and citing of contempt of 6
provincial employees of Ilocos Norte, Rep. Parinas was
declared personan non grata in Ilocos. So he will not be
allowed to enter Ilocos Norte? Or if he enters will he be
arrested? Deported? There is no local application for the
concept of declaring as person persona non grata except
in international in relation to the so called immunities of
certain persons under the Vienna Convention of 1961.
2. VIENNA CONVENTION ON CONSULAR
RELATIONS OF 1963
Consular officials. Of course you understand the basic
distinction of an embassy official and consular official.
In embassy, they perform governmental functions. In
consular, the business side functions of the state. Like
filing of visa, travel documents, employment documents,
you go to the consular office.
The consular officials are immune, relatively only with
respect to their official duties and functions. They can be
prosecuted in the host country for violating any other law
except those in relation to their official consular duties and
functions.
That could be the difference between them and those
enjoying diplomatic immunities under the 1961
Convention.
So that takes care of your immunities not only to the state
but to certain officers in the country or outside of the
country in relation to diplomatic and consular immunities.
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
E. Government
The Administrative Code of 1987 defines government as:
Section 2 (1) "Government of the Republic of the
Philippines" refers to the corporate governmental entity
through which the functions of government are exercised
throughout the Philippines, including, save as the contrary
appears from the context, the various arms through which
political authority is made effective in the Philippines,
whether pertaining to the autonomous regions, the
provincial, city, municipal or barangay subdivisions or
other forms of local government.
V. STRUCTURE AND POWERS OF THE NATIONAL
GOVERNMENT
A. LEGISLATIVE DEPARTMENT
1. Composition, Qualifications and Term of
Office
The only discussion with respect to qualification is
normally your citizenship which we have discussed
already.
The second here is the concept of domicile. Basic rules on
domicile:
1. A person can only have one domicile.
There is a domicile at birth which can continue up to
majority age. Which will also be your domicile of origin.
There is also domicile by reason of marriage, because
under the FC, you are supposed to maintain a family
home. But as discussed in the old case of Romualdez vs
Comelec, the fact that a married woman has decided to
reside or cohabit with the husband in the conjugal home
does not necessarily mean that the domicile of origin or
birth has been abandoned and that a new domicile has
been established.
As discussed in the case of Poe vs Comelec where the
SC had the occasion to discuss one‘s change of domicile.
2. Domicile may be acquired.
We already know how to change or how to affect a change
of domicile. There are three conditions there:
a) An actual removal or change of domicile.
b) Good faith and intention to abandon the old and
establish a new one.
c) Definite acts which would correspond to the
purpose of effectively changing the domicile.
To acquire a new domicile the SC said there are three
conditions.
a) There must be actual residence or bodily
presence in the new locality.
b) An intention to remain there.
c) An intention to abandon the old domicile.
So basically, there must be an intention of remaining in the
new domicile and an intention of not returning to the old
one in order for reacquire or acquire a new domicile.
28 CONSTITUTIONAL LAW I REVIEW TSN
Several cases in your outline with respect to domicile.
MITRA vs. COMELEC
Mentions of the so-called non-legal standards
requirement. If you remember this case, Mitra transferred
residence to what, according to private respondent, was
an old abandoned warehouse which is devoid of any
amenity or luxury inconsistent with the stature of Mitra.
Which the Comelec xxx and declared Mitra as disqualified.
Mitra went to the SC.
The SC said the Comelec committed grave abuse of
discretion for requiring, what the SC referred to as non-
legal standards.
There are only 3 conditions to effect a change of domicile.
There is nothing there that requires that if you house is
abandoned or your domicile is worth P40M and your new
domicile must be worth P40M also. So Comelec imposed
non-legal standards.
FT: Such assessment, in our view, based on the interior
design and furnishings of a dwelling as shown by and
examined only through photographs, is far from
reasonable; the COMELEC thereby determined the fitness
of a dwelling as a person's residence based solely on very
personal and subjective assessment standards when the
law is replete with standards that can be used. Where a
dwelling qualifies as a residence - i.e., the dwelling where
a person permanently intends to return to and to remain -
his or her capacity or inclination to decorate the place, or
the lack of it, is immaterial From these perspectives, we
cannot but conclude that the COMELEC's approach - i.e.,
the application of subjective non-legal standards and the
gross misappreciation of the evidence - is tainted with
grave abuse of discretion, as the COMELEC used wrong
considerations and grossly misread the evidence in
arriving at its conclusion
SABILI vs. COMELEC
The SC also mentioned that the acquisition of a new
domicile or to effect a change of domicile, you need not
perform all the acts at the same time. They may be
cumulative. It is not necessary that you abandon the old
and acquire a new one that you will never return to the old
one all at one time. Because you have to, you know,
arrange your affairs. The important thing is that you have
committed or performed acts to show that you have
changed from the old the new domicile.
FT: We have long held that it is not required that a
candidate should have his own house in order to establish
his residence or domicile in a place. It is enough that he
should live in the locality, even in a rented house or that of
a friend or relative. What is of central concern then is that
petitioner identified and established a place in Lipa City
where he intended to live in and return to for an indefinite
period of time. Moreover, even assuming the truth of the
allegation in the Affidavits that petitioner was ―rarely seen‖
in the area, this does not preclude the possibility of his
residence therein. In Fernandez v. House of
Representatives Electoral Tribunal, we held that the
averments of certain barangay health workers – that they
failed to see a particular candidate whenever they made
rounds of the locality of which he was supposed to be a
resident – is of no moment. It is possible that the
candidate was out of the house to attend to his own
business at the time. The law does not require a person to
be in his home twenty-four (24) hours a day, seven (7)
days a week, to fulfill the residency requirement.
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Also in this case of CABALLERO vs COMELEC (2015)
as well as in the case of POE vs COMELEC (2016)
The fact that the person has been naturalized abroad,
necessarily he must have abandon his birth domicile or
origin, as the case may be.
So when that person comes back and repatriates himself,
he reacquires or he acquires a new residence if he has
complied with the legal conditions of acquiring a new
domicile. It is only from that time on that the residency
period for qualifications of office will have to be computed.
CABALLERO vs. COMELEC
Petitioner‘s reacquisition of his Philippine citizenship under
Republic Act No. 9225 had no automatic impact or effect
on his residence/domicile. He could still retain his domicile
in the USA, and he did not necessarily regain his domicile
in the Municipality of General Macarthur, Eastern Samar,
Philippines. Ty merely had the option to again establish his
domicile in the Municipality of General Macarthur, Eastern
Samar, Philippines, said place becoming his new domicile
of choice. The length of his residence therein shall be
determined from the time he made it his domicile of
choice, and it shall not retroact to the time of his birth.
Hence, petitioner's retention of his Philippine citizenship
under RA No. 9225 did not automatically make him regain
his residence in Uyugan, Batanes. He must still prove that
after becoming a Philippine citizen on September 13,
2012, he had reestablished Uyugan, Batanes as his new
domicile of choice which is reckoned from the time he
made it as such.
Unlike in natural-born citizenship discussions, if you are
natural-born you have lost it by naturalization abroad and
you have reacquired it under RA 9225, your reacquisition
dates back to your birth. As if you have not lost your
citizenship in the interim. It reverts back.
But in case of residence, if you have already considered to
have abandoned PH as your residence or the district for
that matter. Because you have been naturalized abroad,
like in the case of Caballero. The fact that he has
reacquired under RA 9225 his natural-born citizenship,
does not also mean that he has reacquired his residence
status since birth. It will only be from the time he actually
have taken actual residence in the PH and considered it to
be his new residence, complying with the legal
requirements of acquiring a new one.
Meaning, you must have taken PH as your new residence.
You must have not return to the residence abroad or
domicile. You must have maintained residence in the PH
since then up to a certain time to comply with residency
requirement.
Apportionment/Districts
Under the Constitution, there is supposed to be every 3
years a reapportionment. If you notice our Constitution has
an appendix. The appendix in the Constitution has
provided for the number of legislative districts in the entire
country. It has been fixed at, I think, 250 or 200.
But every 3 years, there‘s supposed to be a
reapportionment. The case of Navarro vs Comelec
(2009; 2010), explains the need for reapportionment. This
is actually required in order to equalize so-called
representation.
With the increase in population, there must have to be
necessarily a reflection in the composition in the
CONSTITUTIONAL LAW I REVIEW TSN 29
membership of the House of Representatives. So that
there may be a quality in representation every so often.
MARIANO vs. COMELEC
It was the first of the reapportionment cases involving the
city of Makati. Under the Constitution, each city with a
population of at least 250k must have one representative.
Each province must have one representative regardless of
population. Meaning, there is no population requirement
with respect to province as provided for in the Constitution.
Now Makati City‘s population has increased, let‘s say from
260k to 480k. So a new a district was proposed to be
created by law. This was questioned, because the
Constitution said there must have to be 250k in population.
The SC said, for the first representative – the 250k
population – is a mandatory rule. But for the next or
additional district, it is not a mandatory rule. Because the
Constitution does not require it. But it must have to be
nearer to 250k, but not necessarily 250k.
So since Makati at that time have a population of nearly
half a million, the SC said establishment of another in
addition to the 1 already established or created under the
Constitution, is allowable.
FT: Section 5(3), Article VI of the Constitution provides,
inter alia, that a city with a population of at least 250,000
shall have at least one representative. Even granting that
the population of Makati as of the 1990 census stood at
450,000, its legislative district may still be increased since
it has met the minimum population requirement of
250,000.
Since then, the Mariano rule has been followed. It was
used in the case of Aquino III vs Comelec.
AQUINO III vs. COMELEC
In Camarines Sur there was a reapportionment of 2
districts creating a new one. The SC said that, following
the Mariano ruling the population increase is nearly 250k
also, there can be an additional district to be provided for,
established by law. Because again that is to properly
reflect the increasing population with respect to
representation.
FT: The difference between apportionment and
reapportionment is that, the purpose of the former is to
ensure better access to one‘s district representative in
Congress. No political or corporate unit is created. Thus,
there is no need for a plebiscite in the creation, dissolution,
or any other similar action on a legislative district.
Gerrymandering – the formation of one legislative district
out of separate territories for the purpose of favoring a
candidate or a party.
By the way you have read the League of Municipalities
cases/decisions, because there are so many decisions.
Increasing the requirement of creating a province from
P20M income requirement to P100M.
How do we create a province under the LGC?
1. Income and area or
2. Income plus population.
It‘s not income and population at all times. Meaning, a
province is created because of population not because of
income and area, there is automatically one district.
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Thus, in the case of Aquino, to create an additional district
it does not mean that the province must have initially 250k.
Because the Constitution does not put a population
requirement of a province that has 1 representative.
Because the Constitution says, every province must have
at least 1.
So if the population increases accordingly, nearer to the
Mariano ruling of another 250k, then it can be apportioned
accordingly to reflect the increasing population.
ALDABA vs. COMELEC
The increase in population must be determined mid-
election. So if election is 2013 and 2016, it must be made
in between that. So that if there will be an increase in
districts because of increase in population or mid-term
determination, there can be increase in time for the next
election. Which is one and half years after. So it could be
filled up.
The requirement of are to create a province:
NAVARRO VS. ERMITA
The land requirement is not applied however to provinces
which are composed of islands. That was the case of the
Dinagat Island province.
FT: When the local government unit to be created consists
of 1 or more islands, it is exempt from the land area
requirement as expressly provided in Section 442 and
Section 450 of the LGC if the local government unit to be
created is a municipality or a component city, respectively.
This exemption is absent in the enumeration of the
requisites for the creation of a province under Section 461
of the LGC, although it is expressly stated under Article
9(2) of the LGC-IRR.
There appears neither rhyme nor reason why this
exemption should apply to cities and municipalities, but not
to provinces. In fact, considering the physical configuration
of the Philippine archipelago, there is a greater likelihood
that islands or group of islands would form part of the land
area of a newly-created province than in most cities or
municipalities. It is, therefore, logical to infer that the
genuine legislative policy decision was expressed in
Section 442 (for municipalities) and Section 450 (for
component cities) of the LGC, but was inadvertently
omitted in Section 461 (for provinces). Thus, when the
exemption was expressly provided in Article 9(2) of the
LGC-IRR, the inclusion was intended to correct the
congressional oversight in Section 461 of the LGC - and to
reflect the true legislative intent. It would, then, be in order
for the Court to uphold the validity of Article 9(2) of the
LGC-IRR.
So again, to create a province it is either: (1) income plus
area; or (2) income plus population.
The income however has been increased now from P20M
to P100M, that was the gist in League of Municipalities
cases. Which took the SC about 6 decisions. To finally put
the question to rest.
I think it was asked in 2 bar exams ago. The question
there was ―which of these decisions will you answer‖ of
course you will answer that decision written by the bar
examiner. Perhaps because that is the one he wanted to
read from your answers.
Party-list system (RA 7941, March 3, 1995)
30 CONSTITUTIONAL LAW I REVIEW TSN
What do you have to remember here, aside from the
discussions on the jurisdiction of HRET and COMELEC
with respect to the members of the Congress.
First you determine there who are the qualified groups.
You have your old Ang Bagong Bayani case. Which is
no longer in your outline because that has been taken over
by the Atong Paglaum case.
That Atong Paglaum case was the latest ruling, penned by
Senior Associate Justice Carpio, which revised the rules
on who are supposed to be allowed to participate in the
party-list system election.
Guidelines in screening party-list groups
(Atong Paglaum case)
1. Three different groups may participate in the party list
system: (1) national parties, (2) regional parties or
organizations, and (3) sectoral parties or
organizations.
2. National parties or organizations and regional parties
or organizations do not need to organize along
sectoral lines and do not need to represent any
―marginalized and underrepresented‖ sector.
3. Political parties can participate in partly-list elections
provided they register under the party-list system and
do not field candidates in legislative district elections.
A political party, whether major or not, that field
candidates in legislative district elections can
participate in party-list elections only through its
sectoral wing that can separately register under the
party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political
party through a coalition.
4. Sectoral parties or organizations may either be
―marginalized and underrepresented‖ or lacking in
―well-defined political constituencies.‖ It is enough
that their principal advocacy pertains to the special
interests and concerns in their sector. The sectors
that are ―marginalized and underrepresented‖ include
labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, and
overseas workers. The sectors that lack ―well-defined
political constituencies‖ include professionals, the
elderly, women and the youth.
5. A majority of the members of the sectoral parties or
organization that represent the ―marginalized and
underrepresented‖ must belong to the ―marginalized
and underrepresented‖ sector they represent.
Similarly, a majority of the members of sectoral
parties or organization that lack ―well-defined
constituencies‖ must belong to the sector they
represent. The nominees of sectoral parties or
organizations that represent the ―marginalized and
underrepresented‖ or that represent those who lack
―well-defined constituencies‖, either must belong to
their respective sectors, or must have a track record
or advocacy for their respective sectors. The
nominees of national and regional parties or
organizations must be bona fide members of such
parties or organizations.
6. National, regional and sectoral parties or
organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at
least one nominee who remains qualified.
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Basically you have:
1. National or Regional parties organizations
There is no requirement that they represent the
marginalized and underrepresented.
2. Sectoral parties or organizations
Only those who represent or which represent the
marginalized or underrepresented sector should belong or
run and participate and register under sectoral
representative.
So you can either choose to be a sectoral representative
or a non-sectoral representative. You can just be a
national party which is not named after the established
national party. Just make your own national party and you
can register.
For those representing the sectors, although they are
under the law required to represent the marginalized and
underrepresented, it does not require that they have
actually a track record of representing the marginalized
and underrepresented. Only the nominee or only a
nominee is required.
It is best of course if you really have a track record, but
just because you don‘t have a track record, in Abang
Lingkod vs Comelec (2013) ruling it says that it is not
required. Only one nominee is required, not that he is
supposed to be a member, but he must have a track
record at the very least.
ABANG LINGKOD vs. COMELEC
FT: Proof of track record (in representing the marginalized
and underrepresented) is not a requirement for registration
under the party-list system. Sectoral parties or
organizations, such as ABANG LINGKOD, are no longer
required to adduce evidence showing their track record,
i.e. proof of activities that they have undertaken to further
the cause of the sector they represent. Indeed, it is
enough that their principal advocacy pertains to the special
interest and concerns of their sector. Otherwise stated, it is
sufficient that the ideals represented by the sectoral
organizations are geared towards the cause of the
sector/s, which they represent.
So a son of prominent politician belonging to a rich family
in Davao by the name of Nograles, can be the first
nominee of the party in PBA partylist. He is now sitting as
member of Congress. Does he belong to any marginalized
or underrepresented? No. Does he need to be
marginalized or underrepresented? Not required. But if he
has a track record of representing the advocacies of the
marginalized or underrepresented then he is qualified to
be a nominee.
So if there is one qualified nominee, the party can register.
It is not to be disqualified.
MAGDALO vs. COMELEC
Speaks of the disqualification of the Magdalo party-list for
being an organization that causes violence for change of
government. We all know when this case was filed, while
pending, the president issued executive clemency to them.
Did the Comelec committed grave abuse of discretion
when it issued an order denying registration to Magdalo
because of their practice of committing violence to change
government by on account thereafter of the presidential
pardon?
CONSTITUTIONAL LAW I REVIEW TSN 31
The SC said, there was no gaod. Because when it was
issued there was yet to be a presidential pardon. But
because of the presidential pardon, if Magdalo will reapply
and re-register, Comelec cannot use that ground to
disqualify it because pardon looks back and obliterates the
act. As if no act was committed. While they have
committed acts of violence in fact, in law those were not
committed at all. Therefore, they cannot be or it cannot be
denied or disqualified from registering because that
ground is no longer available.
So it re-registered and now we have a representative who
filed the first impeachment complaint against your
president.
The second thing to remember there is on how to fill in the
seats.
The discussions before was that only those reached of the
threshold of 2% of the total number of votes cast in the
party-list systems elections will have a seat in congress.
But the 2009 ruling of Banat vs Comelec changed that
rule altogether. Where even if a party has not reached the
threshold of 2% of the total number of votes cast, for so
long as there are available seats remaining reserved for
the party-list, then they can get a seat in the House.
Things to remember is that, there is a cut of 3 seats. Even
if you have garnered more than, by reason of the
percentage a party can only have a maximum of 3 seats.
How do you fill up the seats?
1. You first determine how many seats are allocated
to party-list representatives.
The Constitution says 20% of total membership of the HR.
So, every election it increases because of the additional
districts by reason of reapportionment. So there is no fixed
number, it has to be determined every election how many is
20% of the total number of seats.
2. Determine the guaranteed seats.
The guaranteed seats are those seats for the parties who
have reached the 2% threshold.
3. The number of guaranteed seats will then have to
be deducted from the total number of seats which
is reserved for the party-list representatives.
4. The remaining seats will have to be filled up based
on the percentages of votes garnered as compared
to the total number of votes cast in the party-list.
So number of votes of a party you divide that by total
number of votes cast in the party-list the result will have to
be multiplied to the total number of remaining seats.
The resulting factor will be the allowable number of
additional seats on the remaining number of seats.
Same rules to follow, no rounding up of fractional number
to the higher number unless perhaps it is a 0.9. But less
than it will not be rounded off to the higher number
because it will violate the rule on filling up based on
representation.
Total number of seats reserved for the party-list must then
be filled up to how many will have to be determined the
total number of votes garnered by the party.
BANAT vs. COMELEC
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
FOUR INVIOLABLE PARAMETERS IN THE PARTY-LIST
SYSTEM:
(1) 20% Allocation - the combined number of all party-list
congressmen shall not exceed 20% of the total
membership of the House of Representatives.
(2) 2% threshold - only those parties garnering a minimum
of 2% of the total votes cast for the party-list system are
qualified to have a seat in the House.
(3) Three seat limit - each qualified party, regardless of the
number of votes it actually obtained is entitled to a
maximum of three seats (1 qualifying and 2 additional
seats).
(4) Proportional representation - the additional seats which
a qualified party is entitled to shall be computed in
proportion to their total number of votes.
July 19, 2017 A.Sadsad
Term Limitations
Art VI Section 4. The term of office of the Senators shall
be six years and shall commence, unless otherwise
provided by law, at noon on the thirtieth day of June next
following their election. No Senator shall serve for more
than two consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term
of which he was elected.
Art VI Section 7. The Members of the House of
Representatives shall be elected for a term of three years
which shall begin, unless otherwise provided by law, at
noon on the thirtieth day of June next following their
election. No Member of the House of Representatives
shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected.
Abundo vs. Comelec restated the rule regarding term
limitations. Before, in the case of Aldovino vs. Comelec,
the 3 term-limtation rule states that when the member of
Congress has served for three consecutive terms in the
Lower House, or for the Senate, two consecutive terms, he
rd
is no longer eligible to run for a 3 term in the Senate or for
th
a 4 term in the Lower House. In Abundo vs. Comelec,
the Supreme Court had the occasion to collate all previous
rulings respecting term limitations and in that case listed
down what the rules are now.
ABUNDO vs. COMELEC
This Abundo ruling was on a local official. But the
principle involving term limitation should apply with respect
to term limitations for members of Congress.
So when a local official, let‘s say the Vice Mayor, assumes
by reason of the rule on succession to the office of the
Mayor, the fact that he succeeded to the office will be
considered as an involuntary interruption in the term of
office for the Vice Mayor, for which he is qualified to run for
rd
another term (assuming that it was his 3 term). Because
rd
he has not fully served the 3 term as Vice Mayor.
In the same manner, the period of time or tenure served
as Mayor, since he has not been elected there, the SC
said that should not be counted as a term for purposes of
term limitation
32 CONSTITUTIONAL LAW I REVIEW TSN
If a 3-term Mayor has already served and has not run in
th
the 4 election but participated in the recall elections, the
rd
fact that he has already rested after the 3 term or
rd
completion of the 3 term, that means he is qualified to
run for the recall elections because that may be
rd
considered an interruption from the 3 term.
FT: In the present case, during the period of one year and
ten months, or from June 30, 2004 until May 8, 2006,
Abundo cannot plausibly claim, even if he wanted to, that
he could hold office of the mayor as a matter of right.
Neither can he assert title to the same nor serve the
functions of the said elective office. The reason is simple:
during that period, title to hold such office and the
corresponding right to assume the functions thereof still
belonged to his opponent, as proclaimed election winner.
Accordingly, Abundo actually held the office and exercised
the functions as mayor only upon his declaration, following
the resolution of the protest, as duly elected candidate in
the May 2004 elections or for only a little over one year
and one month. Consequently, since the legally
contemplated full term for local elected officials is three (3)
years, it cannot be said that Abundo fully served the term
2004-2007. The reality on the ground is that Abundo
actually served less.
Needless to stress, the almost two-year period during
which Abundo‘s opponent actually served as Mayor is and
ought to be considered an involuntary interruption of
Abundo‘s continuity of service. An involuntary interrupted
term, cannot, in the context of the disqualification rule, be
considered as one term for purposes of counting the three-
term threshold.
LATASA vs. COMELEC
The case of Latasa vs Comelec, the conversion of a
municipality to a city, the SC said that will not be
considered a different term. The term served in the
municipality will be considered as same term for the city
because it involves the same territory. So conversion of an
LGU from municipality to a city will not be considered as
service under different terms.
FT: To allow petitioner Latasa to vie for the position of city
mayor after having served for three consecutive terms as
a municipal mayor would obviously defeat the very intent
of the framers when they wrote this exception. Should he
be allowed another three consecutive terms as mayor of
the City of Digos, petitioner would then be possibly holding
office as chief executive over the same territorial
jurisdiction and inhabitants for a total of eighteen
consecutive years. This is the very scenario sought to be
avoided by the Constitution, if not abhorred by it.
ALDOVINO vs. COMELEC
The case of Aldovino vs. Comelec, on preventive
suspension is not considered a break for purposes of term
limitation. So even if an incumbent has been suspended,
that will still be counted as term for purposes of term
limitation.
When a member of Congress has won in an election but
has lost in an election protest, and therefore has not
served the full term, that will not be counted as his term.
Conversely, if a candidate has lost but won in the election
protest and therefore was able to sit for the remainder of
the term, that term will not be counted as his term for
purposes of limitation because he has not fully served the
term. However, if the decision on an election protest
against the member who was already sitting and the
election protest was decided against him but the decision
came after the term has been fully served, that will be
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
counted as his term. Because it has been served anyway
even if he is not won in the election protest.
With this, the rule now therefore is that for term limitation
to apply, the person must have been elected and must
have fully served the term.
FT: The "interruption" of a term exempting an elective
official from the three-term limit rule is one that involves no
less than the involuntary loss of title to office. The elective
official must have involuntarily left his office for a length of
time, however short, for an effective interruption to occur.
Thus, based on this standard, loss of office by operation of
law, being involuntary, is an effective interruption of
service within a term. On the other hand, temporary
inability or disqualification to exercise the functions of an
elective post, even if involuntary, should not be considered
an effective interruption of a term because it does not
involve the loss of title to office or at least an effective
break from holding office; the office holder, while retaining
title, is simply barred from exercising the functions of his
office for a reason provided by law.
An interruption occurs when the term is broken because
the office holder lost the right to hold on to his office, and
cannot be equated with the failure to render service. The
latter occurs during an office holder's term when he retains
title to the office but cannot exercise his functions for
reasons established by law. Of course, the term "failure to
serve" cannot be used once the right to office is lost;
without the right to hold office or to serve, then no service
can be rendered so that none is really lost.
In Aldovino, it was only ELECTED and SERVED. Now, it
is FULLY SERVED. So if the term has not been FULLY
SERVED, by reason of election protest, as the case may
be, that will not be counted.
2. Election
Regular Elections
Art VI Section 8. Unless otherwise provided by law, the
regular election of the Senators and the Members of the
House of Representatives shall be held on the second
Monday of May.
nd
The regular elections shall be held every 2 Monday of
May and every 3 years.
In relation to synchronization of elections, we all remember
that for members of the Senate, there are 12 senators to
be elected every 3 years because those first elected in the
1988 elections were to serve fully up to 1992. So even if it
was a 6-year term they only served for 4 years. The top 12
in 1992 served for a full term of 6 years and the bottom 12
served for a full term of 3 years. And every three years we
elect 12 members of the House of Senate to serve for a
term of 6 years.
Special Elections
Art VI Section 9. In case of vacancy in the Senate or in
the House of Representatives, a special election may be
called to fill such vacancy in the manner prescribed by law,
but the Senator or Member of the House of
Representatives thus elected shall serve only for the
unexpired term.
Technically, even if there is a law on special elections , the
special elections will always be held during regular
elections. That is to avoid undue expense. So for example
if there will be a vacancy in the Senate, as what happened
CONSTITUTIONAL LAW I REVIEW TSN 33
th
during the time of Guingona, the 13 senator was elected
to fill in the vacancy because of the appointment of
Guingona as VP.
3. Salaries, Privileges, Qualifications
Salaries
Art VI Section 10. The salaries of Senators and Members
of the House of Representatives shall be determined by
law. No increase in said compensation shall take effect
until after the expiration of the full term of all the Members
of the Senate and the House of Representatives approving
such increase.
Just remember that there is a prohibition on increase to
take effect during the term of the members of Congress
approving the increase. There is no prohibition on a law
being passed; what is prohibited is the law taking effect
when the term of office, collectively of the body which
approved it, has not yet expired. The problem with that is
the 12 senators, at any given time, will have interlocking
terms. Say the law was passed in 2015 after 2013
elections, when will the term of office of all members of
that Congress expire? So that is the only thing you have to
remember – when the increase will take effect.
There is no prohibition on decrease.
Freedom from arrest
Art VI Section 11. A Senator or Member of the House of
Representatives shall, in all offenses punishable by not
more than six years imprisonment xxx
The 1987 Constitution has changed the rules on this.
Before, it was claimable only when a member of congress
is GOING TO, WHILE ATTENDING IN, or COMING
FROM a session. In the present Constitution, freedom
from arrest can be claimed while Congress in IN
th
SESSION. Congress‘ session is commenced every 4
Monday of July and shall continue until 1 year exclusive of
the so-called mandatory adjournment period, which is 30
days from the opening of the next regular session
exclusive of Saturdays, Sundays, and legal holidays. It will
also cover only those crimes where the penalty does not
exceed 6 years and it is claimable even if the member of
Congress is not actually doing congressional work for so
long as Congress is in session.
Those two cases in your outline simply points out that
members of Congress are not categorized differently from
ordinary suspects or accused in criminal cases. The
reason why they have preferential treatment for so-called
offenses where the penalty does not exceed 6 years is to
allow continued democratic representation. But if the
penalty is more than 6 years they cannot enjoy some kind
of special treatment to allow them to attend sessions
simply because they have been voted in office.
PEOPLE vs. JALOSJOS
FT: The performance of legitimate and even essential
duties by public officers has never been an excuse to free
a person validly in prison. The duties imposed by the
"mandate of the people" are multifarious. The accused-
appellant asserts that the duty to legislate ranks highest in
the hierarchy of government. The accused-appellant is
only one of 250 members of the House of
Representatives, not to mention the 24 members of the
Senate, charged with the duties of legislation. Congress
continues to function well in the physical absence of one
or a few of its members.
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
We, therefore, find that election to the position of
Congressman is not a reasonable classification in criminal
law enforcement. The functions and duties of the office are
not substantial distinctions which lift him from the class of
prisoners interrupted in their freedom and restricted in
liberty of movement. Lawful arrest and confinement are
germane to the purposes of the law and apply to all those
belonging to the same class.
Note: Trillanes vs. Pimentel merely reiterated the ruling
in Pp vs. Jalosjos
Speech and debate clause
Art VI Section 11. A Senator or Member of the House of
Representatives shall, xxx be privileged from arrest while
the Congress is in session. No Member shall be
questioned nor be held liable in any other place for any
speech or debate in the Congress or in any committee
thereof.
What you need to remember is that they will not be held
responsible for such speech and debate for the same
reason- to allow continued democratic representation. So
that they will be able to discharge the functions of their
office during deliberations or debates in Congress. But
they are not immune from liability within Congress, for
what may be, in relation to Section 16, considered as
Disorderly Behavior. So they cannot be held liable
outside but they can be held liable under their own Rules.
Art VI Section 16 (3) Each House may determine the
rules of its proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds of all its
Members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed sixty days.
It can only be claimed when it is made in Congress or in
any committee thereof. It doesn‘t require therefore that
Congress is in session because it may be on actual break
or recess but there is a committee hearing. Can they do
this outside of Congress? During interviews? That‘s
another thing. It must have to be confined that they are in
Congress or any committee work or deliberation.
Disqualifications
Incompatible or forbidden office
Art VI Section 13. No Senator or Member of the House of
Representatives may hold any other office or employment
in the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries, during his
term without forfeiting his seat. Neither shall he be
appointed to any office which may have been created or
the emoluments thereof increased during the term for
which he was elected.
Incompatible office is an office which a member of
Congress cannot take without forfeiting his seat in
Congress. An exception to this would be an ex officio
position. Ex officio positions have two basic
considerations:
1. There is no additional remuneration for that
additional work
2. There is no need for any formal appointment for
such additional work
Ex officio meaning by reason of the office
34 CONSTITUTIONAL LAW I REVIEW TSN
For example, constitutionally, we would see that there are
memberships in the JBC. Members of Congress sit on
state colleges of GOCCs on account of their positions.
Forbidden offices are offices which have been created
while they are in Congress, or the emoluments thereof
increased when they are in Congress. This cannot be
taken even if they want to forfeit their seat.
LIBAN vs GORDON (2009 and 2011)
Those two cases of Liban vs Gordon involve the Red
Cross.
Is the position of Gordon as chair of PNRC considered an
incompatible office?
The answer is NO. PNRC is a sui generis entity which
according to this case would have to be considered on a
case-to-case basis every time a question is raised. So if
you check your outline in relation to COA, there is a case
there, where the issue was whether the monies of PNRC
are subject to COA audit? In that situation, SC said it is
subject to COA audit because it receives COA funds.
FT: The sui generis status of the PNRC is now sufficiently
established. Although it is neither a subdivision, agency,
or instrumentality of the government, nor a government-
owned or -controlled corporation or a subsidiary thereof,
as succinctly explained in the Decision of July 15, 2009, so
much so that respondent, under the Decision, was
correctly allowed to hold his position as Chairman thereof
concurrently while he served as a Senator, such a
conclusion does not ipso facto imply that the PNRC is a
"private corporation" within the contemplation of the
provision of the Constitution, that must be organized under
the Corporation Code. As correctly mentioned by Justice
Roberto A. Abad, the sui generis character of PNRC
requires us to approach controversies involving the PNRC
on a case-to-case basis.
Conviction of crime involving moral turpitude
BATERINA vs. SINGSON
If you remember the case of Baterina vs Singson, Rep.
Singson was arrested in Hongkong for possession of
illegal drugs during a search in the airport. He was
convicted and he served the sentence. When he ran for
election, Baterina filed a case for disqualification, arguing
that he has been convicted for drugs and therefore he is
disqualified. Our law on disqualification only involves
convictions for crimes involving moral turpitude. Is drug
possession a crime involving moral turpitude? The SC said
no. So you can be a member of Congress and continue to
use drugs and possess it but never sell it. Because
according to the SC, selling involves moral turpitude but
not possession and use.
FT: We have held that moral turpitude implies something
immoral in itself, regardless of the fact that it is punishable
by law or not. It must not merely be mala prohibita, but the
act itself must be inherently immoral. The doing of the act
itself, and not its prohibition by statute fixes the moral
turpitude.
A careful examination of the discussion by this Court
shows that it is the pushing or selling of said prohibited
drugs, and not the mere possession thereof, that is
considered a crime involving moral turpitude.
If you remember the case of Ty-Delgado vs. HRET, Rep.
Pichay was convicted for libel. SC said he is disqualified
because libel is a crime involving moral turpitude.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Mas maayo pa diay mag-drugs kaysa manlibak. Ayaw
gyud mo panlibak kay naa nay moral turpitude. Drugs-
drugs lang. So Congress will be rid of libakero but it will
never be rid of drug users. Hmmm ☺
Other Prohibitions
Art VI Section 14. No Senator or Member of the House of
Representatives may personally appear as counsel before
any court of justice or before the Electoral Tribunals, or
quasi-judicial and other administrative bodies. Neither
shall he, directly or indirectly, be interested financially in
any contract with, or in any franchise or special privilege
granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned
or controlled corporation, or its subsidiary, during his term
of office. He shall not intervene in any matter before any
office of the Government for his pecuniary benefit or where
he may be called upon to act on account of his office.
Prohibition to appear before ET, QJ bodies or admin
bodies
The most prominent prohibition perhaps is for lawyers who
are members of Congress to appear in courts or quasi-
judicial bodies or tribunals.
Members of Congress technically are not prohibited
constitutionally to continue exercising their profession
unlike those in the Executive, those in the Judiciary and
those in the Constitutional Commissions. There is only a
specific prohibition for lawyers, members of Congress to
appear. That is to avoid putting undue advantage on their
client because they are members of Congress.
In relation to your Code of Professional Responsibility, if
you‘re a lawyer appointed and elected to a government
position, what is your obligation? Are you supposed to
stop practicing your profession? You find out. But have to
indicate that you are on your leave from your firm because
you have been elected to a public office.
Rule 6.02 - A lawyer in the government service shall not
use his public position to promote or advance his private
interests, nor allow the latter to interfere with his public
duties.
Rule 6.03 - A lawyer shall not, after leaving government
service, accept engagement or employment in connection
with any matter in which he had intervened while in said
service.
Prohibition on financial interest
Members of the Congress are not supposed to have any
financial interest or pecuniary interest in any contract with
the government or GOCCs.
Duty to disclose
Art VI Section 12. All Members of the Senate and the
House of Representatives shall, upon assumption of
office, make a full disclosure of their financial and business
interests. They shall notify the House concerned of a
potential conflict of interest that may arise from the filing of
a proposed legislation of which they are authors.
They have a duty to disclose their business and financial
interests in conflicts with bills they are authoring and also
their assets, liabilities and net worth.
4. Internal Government of Congress
Election of officers
CONSTITUTIONAL LAW I REVIEW TSN 35
Art VI Section 16 (1) The Senate shall elect its President
and the House of Representatives, its Speaker, by a
majority vote of all its respective Members. Each House
shall choose such other officers as it may deem
necessary.
Who are the constitutionally required officers to be elected
by Congress?
 Senate President; and
 Speaker of the House
All the rest are to be elected based on what they would
want to do. Before there was only one deputy speaker,
majority and then there is minority. I think during the time
of GMA, there was a deputy speaker for Mindanao,
Visayas and Luzon. Give them all the positions they want.
And you know why? Because if you have a position or you
are a chairperson in a committee, you have and additional
budget for you. That‘s why you would wonder why they are
fighting over committee chairpersonships? Because
there‘s money involved 
SANTIAGO vs. GUINGONA
Santiago vs. Guingona speaks of the concepts of
majority for purposes of election. That case, if you
remember, involves the issue of who shall be the minority
leader. Because Drilon was elected by a majority of the
members of Congress to be President, the question is who
should now become the minority leader? And Santiago
said ―Since I did not vote for the President, then I should
be minority leader.‖
So the SC made a discussion on the concept of majority:
If it were to be an ordinary majority, it will have to be a
number more than half. It‘s not 50% + 1 because there is
no person who is half. So a number more than half is
referred to as simple majority.
And so the minority leader will have to be chosen from the
members of the minority parties who have the most
number of votes. It doesn‘t mean that if you belong to the
minority party and you did not vote for the Senate
President, you would become the minority leader.
FT: The term majority has been judicially defined a
number of times. When referring to a certain number out of
a total or aggregate, it simply means the number greater
than half or more than half of any total. The plain and
unambiguous words of the subject constitutional clause
simply mean that the Senate President must obtain the
votes of more than one half of all the senators. Not by any
construal does it thereby delineate who comprise the
majority, much less the minority, in the said body. And
there is no showing that the framers of our Constitution
had in mind other than the usual meanings of these terms.
In effect, while the Constitution mandates that the
President of the Senate must be elected by a number
constituting more than one half of all the members thereof,
it does not provide that the members who will not vote for
him shall ipso facto constitute the minority, who could
thereby elect the minority leader. Verily, no law or
regulation states that the defeated candidate shall
automatically become the minority leader.
But in an election, where there is a question on plurality of
votes, he who has the most number of votes is considered
the winner. He has the majority vote and that is not more
than half. Look at Duterte, how many votes did he garner?
16M. How many qualified voters were registered for the
2016 elections? 54M. That‘s not even half of 54M, not
even half of the 100M in population. So he may have 16M,
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
assuming it‘s true, he is not a majority president if you
were to consider simple majority. But because in election
like the Senate Presidency, the majority there means he
who has the most number of votes, meaning, plurality.
Shifting majority
What‘s the required vote in SC decisions, if it is en banc?
Majority – not of 15 but those who took part and
deliberated on the issue. It is not fixed. That is what we
call shifting majority.
What about in divisions? When you say majority vote of
the members in the division? Same. Those who actually
took part and deliberated on the issue. But cannot be less
than 3, because that is what is required by the
Constitution.
The word majority cannot be defined singularly but would
depend in the circumstance on which the term majority is
used.
Quorum
Art VI Section 16 (2) A majority of each House shall
constitute a quorum to do business, but a smaller number
may adjourn from day to day and may compel the
attendance of absent Members in such manner, and under
such penalties, as such House may provide.
Quorum requires majority, supposedly of the members of
the body, but because in the case of Avelino vs. Cuenco,
the SC clarified that it is only based on the number of the
members upon whom the House has jurisdiction over.
Because there were only 22 senators present, one was
out of the country, one was in the hospital, the number to
consider for purposes of majority is 23. Since there were
12 who voted to declare the positions vacant, the question
was was there a valid vote? Was there a quorum? Yes
there was. Was there a majority? SC said 12 is more than
half of 23 and so there was a valid vote.
AVELINO vs CUENCO
When the Constitution declares that a majority of "each
House" shall constitute a quorum, "the House: does not
mean "all" the members. Even a majority of all the
members constitute "the House". There is a difference
between a majority of "the House", the latter requiring less
number than the first. Therefore an absolute majority (12)
of all the members of the Senate less one (23), constitutes
constitutional majority of the Senate for the purpose of a
quorum. Mr. Justice Pablo believes furthermore than even
if the twelve did not constitute a quorum, they could have
ordered the arrest of one, at least, of the absent members;
if one had been so arrested, there would be no doubt
Quorum then, and Senator Cuenco would have been
elected just the same inasmuch as there would be eleven
for Cuenco, one against and one abstained.
What can a number less than a quorum do which would
have legal effects?
1. They can adjourn sine die (means "without assigning a
day for a further meeting or hearing‖)
2. They can compel the attendance of absent members
and order their arrest
Discipline of members
Art VI Section 16 (3) Each House may determine the
rules of its proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds of all its
36 CONSTITUTIONAL LAW I REVIEW TSN
Members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed sixty days.
Members can be disciplined for disorderly behavior. The
question is what constitutes disorderly behavior? Second
question can the SC exercise judicial review on what
should constitute disorderly behavior? It is given that each
House has the discretion or power to determine what acts
or commissions would constitute disorderly behavior. Can
the courts review that?
Your Sec 16 (3) simply states that the House has the
power to promulgate exclusion proceedings. Even without
that, because of the principle of rex necessitae, meaning,
by necessary implication, the House in order for it to
function properly must have the power to promulgate its
own rules.
Suspension shall not exceed 60 days and any vote to
suspend or expel must have to comply with the
requirement of qualified 2/3 votes of all members not
any other shifting number. So if there are 24 members of
the House of Senate, there must have to be 2/3 of that to
declare a person liable for disorderly behavior and that the
penalty is either suspension or expulsion.
The period of suspension is limited to 60 days. Again, this
is based on the need to have continued democratic
representation. When a member is expelled, temporarily
their constituents are deprived of representation, but there
is a possibility of electing a new one. If a member is
suspended, there will be no representative for the
constituents in Congress. That is why there is that limit of
60 days.
Inquiries in aid of legislation
Art VI Section 21. The Senate or the House of
Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons
appearing in, or affected by, such inquiries shall be
respected.
Journal and Congressional Records
Your outline mentions what are the matters to be entered
in the journal and what are to be in an enrolled bill.
Matters required to be entered in Journal
1. Yeas and nays on third and final reading of a bill;
2. Veto message of the President;
3. Yeas and nays on the repassing of a bill vetoed
by the President;
4. Yeas and nays on any question at the request of
1/5 members present; and
5. Summary of proceedings
An enrolled bill is a bill which has passed through the
three readings required in both houses which has been
certified by both Houses and the final draft submitted to
the President for his signature.
FIELD vs. CLARK
In Field vs Clark, it says there that the journal is
incompetent to show that there is a provision in the
enrolled bill which is not found there. That brings us to the
question, which shall prevail? The enrolled bill or the
journal entry? There is no question that the journal entry‘s
probative value is conclusive as to its contents. So of all
those mentioned there, the 5 items, summary proceedings
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4-MANRESA 2017-2018

being the fifth. If the journal says the session started this Election of officers Majority vote
time and ended at this time or there were this number of Expel or suspend a 2/3 votes
members present, the votes stated on any question, as the member
case may be – those are conclusive. No other evidence Discipline a member with Simple majority
can be received to dispute what appears on the journal. less than suspension or
expulsion
When the question is, what are the contents or what are Existence of a state of war 2/3 votes of Congress in
the provisions of the bill, then the enrolled bill shall prevail. joint session, voting
Whatever has been written in the journal respecting that separately
bill, if it is not found in the enrolled bill, then it is not there. Grant of emergency powers Majority vote
Because when the question is what are the provisions or to President
contents of the bill, the enrolled bill shall prevail over any Choosing a President in Majority vote of Congress
other document including the journal. The enrollement of case of a tie acting as BOC, in joint
the bill is a certification that it is the final and approved session, voting separately
draft of that bill. Decide on President‘s Qualifed 2/3 vote in joint
disability session, voting separately
FT: The signing by the Speaker of the House of Confirming the choice of VP Majority vote, voting
Representatives and by the President of the Senate, in separately
open session, of an enrolled bill is an official attestation by Commander-in-chief Majority vote, joint session,
the two Houses of such bill as one that has passed powers joint voting
Congress, and when the bill thus attested receives the To concur in an amnesty Simple majority
approval of the President and is deposited in the proclamation
Department of State according to law, its authentication as
To concur in a treaty by the Qualifed 2/3 vote
a bill that has passed Congress is complete and
Senate
unimpeachable.
To amend or revise the Qualifed ¾ votes of both
Constitution through Houses in joint session,
It is not competent to show from the journals of either
Constituent Assembly voting separately
House of Congress that an act so authenticated, approved
and deposited, did not pass in the precise form in which it To amend or revise the 2/3 votes in joint session,
was signed by the presiding officers of the two Houses Constitution through separate voting
and approved by the President. Constitutional Convention
if they will have to ask the Simple majority vote
5. Sessions electorate whether there
should be a Constitutional
Convention
Art VI Section 15. The Congress shall convene once
every year on the fourth Monday of July for its regular
session, unless a different date is fixed by law, and shall
6. Electoral Tribunal
continue to be in session for such number of days as it
may determine until thirty days before the opening of its
next regular session, exclusive of Saturdays, Sundays,
and legal holidays. The President may call a special Art VI Section 17. The Senate and the House of
session at any time. Representatives shall each have an Electoral
Tribunal, which shall be the sole judge of all contests
relating to the election, returns, and qualifications of
By the way, the President has already requested their respective Members. Each Electoral Tribunal
Congress to extend the Martial Law declaration until Dec shall be composed of nine Members, three of whom
31, 2017 on the entire Mindanao group of islands. There is shall be Justices of the Supreme Court to be
a session on Saturday to receive more information from designated by the Chief Justice, and the remaining six
the Executive to determine whether the request is shall be Members of the Senate or the House of
plausible. Representatives, as the case may be, who shall be
chosen on the basis of proportional representation
So what is that special session? Because the Constitution from the political parties and the parties or
says, special session can be called anytime. I think that is organizations registered under the party-list system
not accurate because if the Congress is in regular session, represented therein. The senior Justice in the
there is no need to call for a special session. A special Electoral Tribunal shall be its Chairman.
session as mentioned in your Constitution refers to any
question on the President‘s temporary disability or on the Art VI Section 19. The Electoral Tribunals and the
declaration of martial law. Commission on Appointments shall be constituted
within thirty days after the Senate and the House of
If Congress is in session it must have to convene within 48 Representatives shall have been organized with the
hours to receive the report of the Pres. election of the President and the Speaker. The
Commission on Appointments shall meet only while
With the request for extension, there is no procedure for the Congress is in session, at the call of its Chairman
Congress when to take the session to receive information. or a majority of all its Members, to discharge such
But because the first decision will expire on the July 22
nd powers and functions as are herein conferred upon it.
(since Martial Law was declared on May 23, 2017) This is
special session because Congress does not normally hold Composition:
sessions every Friday. They hold sessions Monday 3 Members of the Supreme Court
afternoon up to Thursday afternoon. 6 Members from the Senate of House of
Representatives
Joint sessions & Voting Requirements
There are two components there: the judicial and
To do business Quorum, simple majority is legislative. You will see there are more members of
required

CONSTITUTIONAL LAW I REVIEW TSN 37

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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
the Congress than the SC. The most senior associate
justice of the SC shall be the chair.
Nature of the function: Quasi-judicial
Since it is quasi-judicial, members enjoy security of
tenure. Meaning, members of Congress who sit there
by reason of proportional representation, do not
represent their parties. They have security of tenure
and they, as sole judges must have to act
independently. Yes, they are seated there because
the parties nominated them but the loyalty to the party
ends when their exercise of quasi-judicial power
begins. They cannot therefore be removed in the
tribunal by reason of party disloyalty per se. Party
disloyalty may be a ground for removing a person
from the party‘s membership. But that must be
because of violation of CBL of the party, not because
the party member who sits in the tribunal has voted or
decided a case against the interest of a party. Again,
he does not owe loyalty to his party but must as a
judge sit in the tribunal independent of his party
affiliation.
Q: What are covered by the powers of the
tribunal?
A: They shall act as sole judges of all issues on
election, returns and qualifications of members of
Congress.
Barbers vs. Comelec ruling in 2005 has defined
what is meant by election, returns and
qualification. Any question relating to that, must have
to be under the jurisdiction of the ET.
When shall the jurisdiction of ET commence?
In the old ruling of Marcos vs. Comelec, Vinzons-
Chato v HRET, the understanding was, if a person
has been elected, has taken his oath, even if the term
of office has not yet begun, the jurisdiction of the
Comelec ends on any question. It will now be the ET.
Then came the 2013 ruling in Reyes vs. Comelec,
which involves the son of sitting associate justice
Velasco, where they said that the person must have
been validly proclaimed, taken his oath, regardless of
whether the term of office has commenced, the
jurisdiction of the Comelec ends and HRET takes
over. The issue was on the validity of the
proclamation of Reyes because according to the SC
they have already decreed that he was not qualified to
run. Therefore the proclamation was not valid.
So to be clear not only a person must have to be
elected he must have been validly proclaimed and
taken his oath regardless of whether the term of office
ends but only with respect to election returns or
qualifications.
Layug vs Comelec mentions that the HRET has no
jurisdiction over partylist nominees who are not sitting
in the Congress. So any issue as to the partylist
nominess who may be named but are not actually
sitting in Congress because they did not get a seat,
any issue as to them will remain with the Comelec.
TAÑADA vs. COMELEC
But in Tañada vs Comelec, Tañada raised an issue
earlier to declare another Tañada (Alvin Tañada) as
nuisance candidate. Eventually he asked that any
vote cast in favor of that candidate should be counted
in his favor. He said that if those votes were counted
in his favor then he will win. Election went through and
38 CONSTITUTIONAL LAW I REVIEW TSN
Alvin Tañada‘s name was not removed from the
ballots and votes were cast in his name. Angelina Tan
was proclaimed winner and she took her oath.
Question is can the Comelec and SC have jurisdiction
over the issue of the votes cast in favor of Alvin to be
counted in favor of Tañada? The SC said no more.
Because that is included in the term ―return‖ So, any
issue with respect to election, return and qualification,
is already within the jurisdiction of ET.
Any question which therefore involves the
membership of a person in Congress is with the ET;
no matter how it is framed.
LICO vs COMELEC
There was infighting in the party. Intraparty dispute as
to who the nominee should be. Eventually there were
series of acts in the party that this and that would no
longer be nominated.
SC said that while membership in the party is a
continuing qualification to be a nominee of the party,
to question the qualification of a person as a member
of the party outside the ET will affect his seat in the
Congress and therefore that question should be
resolved not by the Congress but by the ET. Because
that is not only qualification to the party per se. it
eventually does down to his qualification as a
member.
July 25, 2017 K. Tongo
7. Commission on Appointments
Art VI Section 18. There shall be a Commission on
Appointments consisting of the President of the Senate, as
ex officio Chairman, twelve Senators, and twelve Members
of the House of Representatives, elected by each House
on the basis of proportional representation from the
political parties and parties or organizations registered
under the party-list system represented therein. The
chairman of the Commission shall not vote, except in case
of a tie. The Commission shall act on all appointments
submitted to it within thirty session days of the Congress
from their submission. The Commission shall rule by a
majority vote of all the Members.
Section 19. The Electoral Tribunals and the Commission
on Appointments shall be constituted within thirty days
after the Senate and the House of Representatives shall
have been organized with the election of the President and
the Speaker. The Commission on Appointments shall
meet only while the Congress is in session, at the call of
its Chairman or a majority of all its Members, to discharge
such powers and functions as are herein conferred.
12 from each house based on proportional representation
th
and the 25 person will be the Senate President
technically or normally the Senate president xxx voting by
traditions.
The power of the Commission on Appointment is largely
as checking the powers on the appointing authority of the
president or those which appointments require
confirmation, its officers belonging to the enumeration on
the first sentence section of Section 16 of Article VII.
Art VII Section 16. The President shall nominate and, with
the consent of the Commission on Appointments, appoint
the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproved by the Commission on Appointments or
until the next adjournment of the Congress.
Based on the cases discussed, this list is exclusive,
meaning Congress cannot by law therefore provide for a
qualification requiring CA confirmation because that would
be unconstitutional. Secondly the equivalent ranks of the
AFP from the rank Colonel or captain in the PNP officials
are not subject to CA confirmations because the PNP is
not part of the AFP. Again the list is exclusive.
There can also be no action coming from the Commission
on Appointments even if an appointment is referred to it by
the appointing authority if that appointment or office does
not require CA confirmation because it does not belong to
the exclusive list in the first sentence of section 16 Article
7.
Related to the discussion of Commission on Appointments
would be the nature of the action taken by the CA with
respect to confirmations. If the CA merely bypassed a
certain appointment, that appointment can be redone
supposedly or that person can be reappointed by the
President until the CA has finally rejected the appointment
made by the President. Technically that is not an
appointment yet, because the correct use of terminology is
that when the person falls under first sentence of section
16, they are nominated to that position. Their nomination is
supposed to be submitted to the CA for confirmation. If
the confirmation is done then the appointment is issued.
But of course we regularly call it as appointment subject to
confirmation by the CA.
But if it is finally rejected, the nominee can no longer be
reappointed to that same position. Can that same person
be appointed to another position ? The answer is yes.
Because the rejection by the CA with his appointment
would refer to that particular position. If it is another
position then that person can be appointed by the
appointing authority.
Also related to that would be the concept of Ad interim
appointments.
Ad interim appointment is loosely referred to as
appointments made during recess of the Congress. But it
should be technically be limited only to those
appointments requiring CA confirmation when the
congress is not in session. The CA will only function if
congress is in session. If the congress is not in session
then the CA is not functioning. Thus any appointment
made requiring CA confirmation when Congress is not in
session will be considered as Ad interim appointment. Any
other appointment requiring CA confirmation even if made
while the congress is in recess should never be referred to
as Ad interim appointment.
Ad interim is effective until rejected by the congress or
until the re-adjournment of the congress. Because when it
is made when the Congress is in session, it can be acted
upon and rejected even with the CA when congress
reconvenes. But if the Congress does not reject it and it
has adjourned again then that ad interim will lose efficacy.
CONSTITUTIONAL LAW I REVIEW TSN 39
Of course the President can make another re nomination
on re appointment as the case may be.
Another case there is the case of Pimentel on the issue
whether or not the President can make acting
appointments or appointments in acting capacity, for
position requiring CA confirmation. Or should the
President may only make so called regular appointment
subject to CA confirmation so that the CA can act on it.
The premise being if it is made in acting capacity, the
appointment in acting capacity need not be submitted to
CA for action because it is not ―regular appointment.‖ So
Pimentel raised the issue if it not unconstitutional as it
violates the concept of checking powers of the CA, the
Supreme Court said NO. Unless it is done in bad faith to
circumvent the confirmatory process of the CA. The
reason being if there is a vacancy in the cabinet position or
any position requiring CA confirmation as the case maybe,
the President should not be compelled immediately to
make an appointment with regular capacity
As we said, the appointing powers of the President is
largely discretionary. It cannot be legislated that the
discretion will be limited. We said that the appointing
authority of the President, while the Congress may have
the power to provide qualifications, it cannot be such that
the qualifications can fit only one person because it will
destroy the appointing power, nature or character of the
President. And so, the President must have to be given
enough time to look for a person suitable for him to fill in
the vacancy. In the meantime, the President is not
prohibited therefore from extending an appointment in an
actingcapacity.
Again as long as it is not in bad faith to circumvent the
confirmatory process. If it is done in relation to his
discretion pending the choosing of the suitable person
then there is no constitutional prohibition then the
president can in the mean time extend an appointment to
a person in an acting capacity until a regular appointment
is made and that is not subject to CA confirmation.
8. Powers of Congress
General Plenary Powers
ART VI Section 1. The legislative power shall be vested in
the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative
and referendum.
When you say plenary you understand that it is general, it
is absolute subject ofcourse to constitutional limitations.
So unless it is limited by the Constitution, Congress can do
it. And in the language of Marcos vs Manglapus in the
concept of residual powers, anything that we can imagine
under the legislative authority, the power to enact and to
pass law provided it does not violate constitutional
prohibitions, congress has the power to legislate.
MARCOS VS. MANGLAPUS
Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has
unstated residual powers which are implied from the grant
of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers
of the President are not limited to what are expressly
enumerated in the article on the Executive Department
and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime
of Mr. Marcos, for the result was a limitation of specific
power of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the
general grant of executive power.
In your outline it is listed there the limitations of the
legislative power
Substantive limitations.
So you have the bill of rights which is largely the article
which contains most of the limitations on Governmental
powers and that would include legislative power. Then you
have sections:
Section 24. All appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local
application, and private bills, shall originate exclusively in
the House of Representatives, but the Senate may
propose or concur with amendments.
Section 25.
1. The Congress may not increase the appropriations
recommended by the President for the operation of the
Government as specified in the budget. The form, content,
and manner of preparation of the budget shall be
prescribed by law.
2. No provision or enactment shall be embraced in the
general appropriations bill unless it relates specifically to
some particular appropriation therein. Any such provision
or enactment shall be limited in its operation to the
appropriation to which it relates.
3. The procedure in approving appropriations for the
Congress shall strictly follow the procedure for approving
appropriations for other departments and agencies.
4. A special appropriations bill shall specify the purpose
for which it is intended, and shall be supported by funds
actually available as certified by the National Treasurer, or
to be raised by a corresponding revenue proposal therein.
5. No law shall be passed authorizing any transfer of
appropriations; however, the President, the President of
the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for
their respective offices from savings in other items of their
respective appropriations.
6. Discretionary funds appropriated for particular officials
shall be disbursed only for public purposes to be
supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law.
7. If, by the end of any fiscal year, the Congress shall have
failed to pass the general appropriations bill for the
ensuing fiscal year, the general appropriations law for the
preceding fiscal year shall be deemed re-enacted and
shall remain in force and effect until the general
appropriations bill is passed by the Congress.
Section 26. Every bill passed by the Congress shall
embrace only one subject which shall be expressed in the
40 CONSTITUTIONAL LAW I REVIEW TSN
title thereof.
Section 28. The rule of taxation shall be uniform and
equitable. The Congress shall evolve a progressive
system of taxation.
The Congress may, by law, authorize the President to fix
within specified limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development
program of the Government.
Charitable institutions, churches and personages or
convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and improvements,
actually, directly, and exclusively used for religious,
charitable, or educational purposes shall be exempt from
taxation.
No law granting any tax exemption shall be passed without
the concurrence of a majority of all the Members of the
Congress.
Section 24 is the origin of bills. Section 25 is on
appropriations bills. There is a definition there on what an
item is. And the last item in Section 25 is the transfer of
funds. Section 26 is the formal yet constitutional
requirement of one subject to be contained in the title.
Section 28 is the rule on taxation, the flexible tariff clause,
real estate tax exemption and tax exemption in general.
Then you have Article XIV Section 4, these are the
income of the so called non-stock nonprofit educational
institution they cannot be taxed.
Article XIV Section 4. All revenues and assets of non-
stock, non-profit educational institutions used actually,
directly, and exclusively for educational purposes shall be
exempt from taxes and duties. Upon the dissolution or
cessation of the corporate existence of such institutions,
their assets shall be disposed of in the manner provided
by law.
Proprietary educational institutions, including those
cooperatively owned, may likewise be entitled to such
exemptions, subject to the limitations provided by law,
including restrictions on dividends and provisions for
reinvestment.
Subject to conditions prescribed by law, all grants,
endowments, donations, or contributions used actually,
directly, and exclusively for educational purposes shall be
exempt from tax.
Article 6 Section 29 public funds
Article VI Section 29.
No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law.
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination,
sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as
such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
institution, or government orphanage or leprosarium.
All money collected on any tax levied for a special purpose
shall be treated as a special fund and paid out for such
purpose only. If the purpose for which a special fund was
created has been fulfilled or abandoned, the balance, if
any, shall be transferred to the general funds of the
Government
Public funds or money from the public treasury can be
taken only by reason of an appropriations bill. It also
includes payment of public funds prohibition to religious
persons with the exception to those who serve in the
armed forces, in penal institutions, in government
orphanages, leprosarium.
Special levy fund - they are supposed to be for special
purposes and if there is any amount remaining it should be
returned to the general funds.
Section 30 is the appellate jurisdiction of the Supreme
Court. It cannot be increased except with the prior
concurrence of the Supreme Court.
Section 30. No law shall be passed increasing the
appellate jurisdiction of the Supreme Court as provided in
this Constitution without its advice and concurrence.
Section 31 of your Article 6 would be your title of nobility
and royalty. It cannot be legislated because we are not a
monarchy.
Section 31. No law granting a title of royalty or nobility
shall be enacted
Implied Substantive limitations
Your implied substantial limitations is the doctrine of non-
delegation of powers and the second would be the
prohibition on passage against passage of irrepealable
clause. Your second limitation would be your procedural
limitations.
Now for your procedural limitations there is nothing much
to it, just remember your 3-3-3 rule. Three readings on
three separate days. Three printed copies, at least three
days on the third and final reading.
Your case there, there is one case which discussed the
effect of the certification of bill. If a bill is certified, is it
exempt from the requirement of the regular passage of the
3 readings on 3 separated days and 3 printed copies, 3
days before the third and final reading. That case submits
that it is exempt. But to understand it in its correct
perspective, it should be there should be 3 readings. We
said the constitution requires the first reading in relation to
the procedure for passage is that, the first reading should
be title generally it is referred to the committee for the
appropriate study and recommendation. The second
reading is for debates on each and every provision of the
proposed bill. And after the second reading it will be
approved for voting and then the third reading would be
reserved for only. No interpellations or further debates are
allowed.
So, correctly understood, a bill cannot be passed simply
because it is certified without complying with the three
reading. There should be still be 3 readings. There should
still be debates. There would still be voting. What can be
dispensed with is the separate days requirement. In one
day, if they can do it, they can read the title on the onset,
at the start and then discuss, debate, argue on each and
CONSTITUTIONAL LAW I REVIEW TSN 41
every provision and at the end of the day if it is possible
they would come up with a vote.
Is it exempted from the printed copy? Yes. The same case
suggests that it is. But for practical reason and for logical
considerations it must have to be in writing. Because what
is there to submit to the other house assuming it originated
from the lower house or from the senate vice versa. What
should be forwarded to the other house is an approved
version of the bill, there is none, so there must have to be
a printed copy. Also assuming that it is an enrolled bill,
what is the enrolled bill to be submitted to the President for
his action if it were not to be in a printed form so the best
we could agree on is on circumstances and for logical
reasoning, it must have to be exemption from the 3
readings on separate days because that is the only reason
to be dispense with by reason of certification of urgency
for the passage of its bill.
Certificate of urgency, your President made this SONA
whatever you call it. It is the State of our Nation. What is
the State of our nation in his 2 hour speech if you cared to
listen or read the transcript. Stripped of ―bullying of other
person‖ he is certifying 6 bills. But BBL has not been
certified at the moment but he has mentioned in his
speech, that he is going to certify it but as of yesterday he
has not been certified yet.
Still on procedural limitation is your concept of Bicameral
Conference committee.
Bicameral conference committee as you have learned in
rd
the cases that you have read is the 3 house of congress.
When a bill is passed in one house it is forwarded to the
other house and in that house will have to pass its own
version of the bill. When both versions are approved and
they are harmonized, they are enrolled.
The problem is if there is no harmony in the two approved
versions. So by practice and by rule the Congress in the
Philippines have instituted of what we now know the
Bicameral Conference committee which is composed of
members of both houses, normally the authors and
leaders of both houses to come up with the harmonized
versions. While largely its task is to harmonize conflicting
versions sometimes the bicameral conference committee
will do its job not to harmonize conflicting versions but to
improve the language or the phraseology before the bill is
supposed to be enrolled.
In relation to bicameral conference committee, two
questions are normally asked:
1. Is it unconstitutional as a practice and as a procedure?
No. Because the passage of the bills under Section 26 of
Article 6 has not been violated. There has been readings
in both houses, the passage provision has been complied
with. It is just that, there is another layer of process or
procedure before it is enrolled. So no constitutional
provision has been violated.
2. The voting on the bicameral conference committee did
or sometimes referred to as bicameral conference
committee report. When the bicameral conference
committee comes up with the harmonized version or the
improved version on phraseology for enrollment, the voting
is not in the usual voting on the third and final reading. is it
not a violation of the constitutional provision on voting?
The answer is no, again the voting has already been had
in the separate houses when they processed it in
accordance with Section 6 or Article 6. That is the main
gist of the Arroyo versus De Venecia ruling when the
bicameral conference committee bill or report was voted
not by nominal voting but by the absence of any objection
of its passage or approval
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
ARROYO VS. DE VENECIA
Petitioners further charge that there was a disregard of
Rule XIX, §112 and Rule XVII, §103 of the Rules of the
House which require that the Chair should state a motion
and ask for the individual votes of the members instead of
merely asking whether there was any objection to the
motion. As explained already in the decision in this case,
the practice in cases involving the approval of a
conference committee report is for the Chair simply to ask
if there are objections to the motion for approval of the
report. This practice is well-established and is as much a
part of parliamentary law as the formal rules of the House.
The no amendment rule in the constitution is also not
violated in the Bicameral conference committee report.
You remember that the No amendment rule refers simply,
that when the bill is already approved in one house, there
is no amendment. Procedurally the debates are had in the
second reading. The third reading is reserved for voting.
After it is voted upon, there will be no amendments
allowed. And no amendments allowed from them up to
the enrolment of the bill and certification of the bill to be
submitted to the President. The No amendment rule is not
violated because again it is already complied with in the
separate passage in different legislative houses.
Finally your Origin of Bills. Part of procedure
Your origin of bills you have revenue, tariff, appropriations,
private bills, bills of local application and bills increasing
public debt. The text book will say this is because of the
nature of this bills requiring .. representation that is why it
should be originally coming from the lower house.
The discussion however is on the power of congress on
the same set of bills. What can the senate do? Because
the Constitution says it must originate from the lower
house.
What is prohibited from the senate in doing is to officially
act on their own version of these types of bills prior to its
receipt of the approved version of the lower house. So if it
is not to process the bill in the senate there is no violation.
So for example can the senate in anticipation of the receipt
of the approved version of the lower house bill on t.r.a.i.n
(Tax reform for acceleration and Inclusion) [note: di ko
sure mao ni ako nakita na nisunod sa giingon ni sir]
What‘s train again that is anyway,.. you know what train is.
So assuming there is a Senator who will file a bill in the
house of senate on train before it receipt of the approved
version of the lower house, is that allowable? The answer
is yes. The only prohibition again is for the House of
Senate to deliberate on it, discuss on it, worst approve
their own version before receiving the approved version of
the lower house. Filing is therefore not prohibited. It is the
processing and eventual approval in the house of senate
before receipt of final version coming from the lower house
with respect to the six types of bills which is prohibited.
Final thing, even if these bills must originate from the lower
house, the senate is not prevented from approving a totally
different version of the same bill. So let‘s take the train for
example. If the train in the lower house includes sugar
which will increase the prices thereof of your 3-in-1 coffee
and of your soda, the senate can approve its own version
of the train, excluding sugar and salt because mao nalang
ny sud an sa mga pobre dili nalang nato I tax that is not
prohibited even under the origin of bills principle.
Non-delegation of powers.
You all understand the reason for policy behind non
delegation. What has been delegated cannot be further
42 CONSTITUTIONAL LAW I REVIEW TSN
delegated. It can be delegated provided it is within the
concept of allowable delegation.
Your constitution or your outline provides for exceptions
there; Delegations to President that is your emergency
powers and flexible tariff clause powers. Delegation to the
people under initiative and referendum. We said this is
supposed to be understood as power withheld and not
delegated because the source of sovereign power is the
people and the people should legislate for themselves. But
under our representative system, the people has
collectively delegated legislative powers to congress. So
when the constitution grants that power to congress and
there is a withholding on legislative power of initiative and
referendum to the people it is notdelegated but actually
power withheld. However because of section 32 of article
6 which requires congress to enact a law in initiative and
referendum that power to legislate by the people could not
be excercised absent any congressional act and for which
reason it is deemed to be delegated.
Art VI. Section 32. The Congress shall, as early as
possible, provide for a system of initiative and referendum,
and the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject any
act or law or part thereof passed by the Congress or local
legislative body after the registration of a petition therefor
signed by at least ten per centum of the total number of
registered voters, of which every legislative district must
be represented by at least three per centum of the
registered voters thereof.
Delegation to local governments
That is based on time in memorial practice.
Local legislation is best left to the local legislative
assemblies. Local legislative assemblies are in the better
position to determine what are the demand of localities
respecting their .. so that is allowed since then. Your latest
law on that would be your Local Government Code,
Republic Act 7160. Under section 16 it refers to your
General Welfare Clause and the general welfare clause
practically delegates police power to local government
units. Your LGC also has delegated taxation powers to the
local legislative councils or assemblies. That is why part
half of your local government code is on taxation and local
financial systems.
Now going back to non delegation, the theory is that if the
delegated authority has satisfied the so called test then the
delegation is allowable. The test would ensure that the
delegate will be exercising the delegated authority
properly. In delegated authority two things are usually
asked:
1. Is there a delegated authority
2. Is the delegate excercising the authority within
the bounds of the delegated power.
The 2 tests:
1. Completeness of statute test
2. Sufficiency of standard test
How sufficient the standards are it depends on the
circumstances. In one case involving President Arroyo, the
Supreme Court said that the standards need not be in one
law. Ideally that should be the situation so that the
delegate can determine what the bounds or limitations of
his power is. However it is not required that the standards
may be or should be in one legislation. Several legislations
may be on the same subject matter may be examined and
if all of them even if not one of them has provided for all
the standards but if all of them taken altogether would
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
provide for all the standards that would limit the power of
the delegate, then there is satisfaction of the sufficiency of
the standards rule
Most of the delegation or cases on delegated authority
would be on your so called subordinate legislation. We all
understand what subordinate legislation is. That is your
rule making power. Because of the complexities of life in to
modernization, Congress has created by law several
administrative bodies to take care of certain administrative
matters relating to a particular activity. These are normally
regulatory power. Common to you would be the NLRC,
what other regulatory authority or bodies you have. When
it is created by law, because congress is not expected to
know the details in the implementation, it normally would
delegate so called rule making power to these
administrative bodies.
There are two species of rule making power:
1. Supplementary rule making power
2. Contingent rule making power
Supplementary rule making power- the law provides for
the standards it grants the delegate the power to fill in or to
fill up the details for its implementations.
Contingency rule making power- means the congress in
delegating the authority has provided the standards but
allows the delegate to determine facts for the proper
implementation of the law.
These are allowed because again, Congress is not
expected to know the technical expertise, knowledge or
skill required for the implementation of the law, as it gives
general grant of authority, that is or there are standards
set and the rules for the implementation will be issued,
given, promulgated by the delegate. And for so long as the
delegation falls is allowable under completeness of statute
or sufficiency of standards test, the delegate may exercise
rule making power. It only requires that the rules must not
be in violation of the constitution and it must also be
consistent with the legislative authority granted to it for the
rules to be valid.
Once the delegation is made, delegation is complete. The
delegate can exercise his rule power or subordinate
legislation without any requirement of prior approval of the
congress.
In the old case of Abakada vs Purisima that was the first
time we know of the term inward turning legislation. It is
the process by which a delegates rule is obligated is made
is subjected to prior approval of congress before it is to be
effected. That should not be the case. Again when the law
is passed, delegation is made and it is complete, the
subordinate will have the power to promulgate its rules
and regulations. If there is any questions as to the validity
of the rules and regulations it should not be Congress
which should grant its prior approval because it is inward-
turning legislation, that is unconstitutional.
Who verifies its validity then? It is the court. When there is
a question raised whether or not the rules or implementing
rules or regulations are ultra vires or outside the power or
violates the constitution or not within the limits of the
delegated authority, it should be the courts which shall
interpret it, and so decree and not to be subjected to prior
approval of congress which is referred to as inward turning
legislation.
Your case of Cruz vs Pandacan refers to section 16 of
your Local Government Code, Supreme Court said that it
is explained there that the General welfare clause involves
two types one is the general grant of delegated authority,
you can exercise police power and you can enact
CONSTITUTIONAL LAW I REVIEW TSN 43
ordinances. The second is specific delegation the
congress may do from time to time. And local government
codes can therefore exercise police power through its
legislative assemblies or councils.
This is a case involving abatement of Nuisance. Can the
chief executive in this case the barangay captain abate a
nuisance summarily. The SC said no because there is no
law passed by the council allowing the barangay captain to
abate a nuisance summarily. We got across your laws in
nuisance, abatement. Can an LGU abate a nuisance per
se? Yes but only the chief executive. When the Civil
Code was passed we have no barangay captain yet, or
technically Punong Barangay. There must have to be a
legislation authorizing the barangay captain to abate a
nuisance in the locality.
CRUZ VS. PANDACAN
The general welfare clause provides for the exercise
of police power for the attainment or maintenance of
the general welfare of the community. The power,
however, is exercised by the government through its
legislative branch by the enactment of laws regulating
those and other constitutional and civil
43
rights. Jurisprudence defines police power as the
plenary power vested in the legislature to make
statutes and ordinances to promote the health,
morals, peace, education, good order or safety and
44
general welfare of the people. The Latin maxim
is salus populi est suprema lex (the welfare of the
45
people is the supreme law). Police power is vested
primarily with the national legislature, which may
delegate the same to local governments through the
enactment of ordinances through their legislative
46
bodies (the sanggunians). The so-called general
welfare clause, provided for in Section 16 of the Local
Government Code, provides for such delegation of
police power, to wit:
Section 16. General Welfare. Every local government
unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which
are essential to the promotion of the general welfare.
Within their respective territorial jurisdictions, local
government units shall ensure and support, among
other things, the preservation and enrichment of
culture, promote health and safety, enhance the right
of the people to a balanced ecology, encourage and
support the development of appropriate and self-
reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity
and social justice, promote full employment among
their residents, maintain peace and order, and
preserve the comfort and convenience of their
inhabitants.
Flowing from this delegated police power of local
governments, a local government unit like Barangay
848, Zone 92 in which petitioners were public officials,
exercises police power through its legislative body, in
this case, its Sangguniang Barangay.
Your QC-PTA vs Deped the question here is on the
issuance of Dep- ed on the revised guidelines on
governing Parents –Teachers Association. And the SC
said that DO 54 was issued by the Deped under
subordinate legislation or rule making power. PTAs, in
case you may not know are mandated to be established
under PD 603 or your Child and youth welfare code. So
when your Dep Ed issued guidelines, or these revised
guidelines over PTAs it was actually in the exercise of its
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
rule making power which was mandated to it by a law. It
was not simply by imagination of the Dep-Ed.
By the way this case of QC-PTCA, the SC restated the
rule on subordinate legislation as part of due process.
There must have to be printed copies, three certified
printed copies of the implementing rules and regulation,
generally under subordinate legislation to be submitted to
the UP Law Center for publication in the National
administrative register otherwise that rules cannot take
effect. Much more is that there is a penal sanction, nobody
can be held accountable and that publication requirement
is part of substantial law.
Those are your limitations on legislative power generally.
We‘ll take the specifics when we reach the specific items
later in the outline.
Question hour and legislative investigation fall in what is
collectively referred to as congressional oversight powers.
When you say congressional oversight it refers to the
power of congress to oversee how laws are implemented
or how laws are being executed. Laws which have come
from them.
There are generally three types of oversight:
1. Scrutiny
2. Legislative inquiry
3. Legislative supervision
And in legislative supervision this is strictly what is referred
to as oversight. I normally use as an example if you‘re
familiar with the Absentee- Voter‘s act, Filipinos who are
not here and who are abroad can vote. Of course you are
familiar with that because you have perfected your election
laws.
So part of that law is a provisional oversight, that is why a
lot in congress would want to be appointed in that
oversight committee coming from both houses of
Congress because they have free travel during election
period to go to one Philippine Consular embassy all over
the world to see or oversee how the election is going. Not
that they are going to oversee how the elections are
actually done or to see or oversee whether the Absentee
Voter‘s provision act are being implemented effectively. So
that if there are certain problems they can come up with an
amendment, that is the purpose of oversight.
Scrutiny will normally come during budget hearings or
question hour. Scrutiny in budget hearings because during
in budget hearings they ask the department heads in
relation to submitted budget why they need it, what they
have done last year, why is there an increase, what
happened to this amount of budget last year. So they have
the power to scrutinize how each department has been
performing its job or task based on the budget it has been
given or the budget it is now asking.
And in question hour, because we will understand in the
question hour, heads of executive department may be
asked to appear before the house of congress, ..a
committee and they can be asked questions pertaining to
their respective departments, how departments are
performing their task in relation to the mandates of the
office. And there are specific requirements for submitting
questions in writing so that the members of the cabinet will
know the answers beforehand. You don‘t want them to
appear without any .. of intelligence with respect to their
departments when they are asked, although interpellations
are not required to be in writing.
The second is the legislative inquiry or inquiry in aid of
legislation. If you remember the old cases of Arnault vs
Balagtas and Arnault vs Nasareno under the 1935
44 CONSTITUTIONAL LAW I REVIEW TSN
constitution, in the 1935 Constitution there was no
provision on inquiries in aid of legislation as it is found in
1987 constitution.
Notice that in 1987 Constitution it is express, not that it is
expressly granted because in the two old cases of Arnault,
the SC said there is no need for the Constitution to provide
the Congress the power to investigate because the power
to investigate is inherent in the power to legislate. How can
the congress legislate properly if it has no power to secure
facts or information in the proposed or in aid of legislation,
so it must have the power to inquire. and considered in
the power to inquire is the extent of its inquiry.
The SC said in two cases that for so long as it is within the
power of the congress to legislate that is co-extensive of
its power to inquire.
Also, it has the power to site the person in contempt. For
how can you properly exercise the power of inquiry when it
has no power to compel the attendance of persons. So it
has the power to cite the person in contempt, not only for
refusing to appear but also for refusing to answer
questions asked during the Inquiry. In relation to that is the
question should it mean to apply for contempt orders of
the court. The SC said no, it is sui generis. The congress
inherently has the power to cite a person in contempt and
to penalize such person in contempt.
Final question as to the contempt powers, what is the
extent of the power of the congress to cite a person in
contempt for refusing to appear or refusing to answer
questions asked during the inquiry. Again for so long as it
is within the power to legislate any person related thereto
must be answered or otherwise the person may be cited
for contempt and so with its power to compel the
attendance of a person.
In the present phraseology clearly mentions there that
there must have to be rules respecting legislative inquiries
in aid of legislation or legislative inquiries. The rules must
have to be published and in the case of Garciliano it must
have to be published for every number of congress, it
cannot be the previous number of congress published
rulesto be effective in the next number of congress. It must
have to be published everytime there is a new number of
congress. And the persons appearing or affected in this
inquiry must have to be respected and protected.
GARCILLANO VS. HR COMMITTEE
Fourth, we find merit in the argument of the OSG that
respondent Committees likewise violated Section 21 of
Article VI of the Constitution, requiring that the inquiry be
in accordance with the "duly published rules of
procedure." We quote the OSG‘s explanation:
The phrase "duly published rules of procedure" requires
the Senate of every Congress to publish its rules of
procedure governing inquiries in aid of legislation because
every Senate is distinct from the one before it or after it.
Since Senatorial elections are held every three (3) years
for one-half of the Senate‘s membership, the composition
of the Senate also changes by the end of each term. Each
Senate may thus enact a different set of rules as it may
deem fit. Not having published its Rules of Procedure,
the subject hearings in aid of legislation conducted by
thn
the 14 Senate, are therefore, procedurally infirm.
The Court does not agree. The absence of any
amendment to the rules cannot justify the Senate‘s
defiance of the clear and unambiguous language of
Section 21, Article VI of the Constitution. The organic law
instructs, without more, that the Senate or its committees
may conduct inquiries in aid of legislation only in
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
accordance with duly published rules of procedure, and
does not make any distinction whether or not these rules
have undergone amendments or revision. The
constitutional mandate to publish the said rules prevails
over any custom, practice or tradition followed by the
Senate.
Given this discussion, the respondent Senate Committees,
therefore, could not, in violation of the Constitution, use its
unpublished rules in the legislative inquiry subject of these
consolidated cases. The conduct of inquiries in aid of
legislation by the Senate has to be deferred until it shall
have caused the publication of the rules, because it can do
so only "in accordance with its duly published rules of
procedure."
Which means in your bill of rights especially in your
section 17 your right to self-incrimination is claimable. Are
you entitled with the right to counsel? The answer is no,
because your section 12 of Article 3 on investigations
which grants a person who is investigated for a criminal
offense, the right to counsel preferably of his own choice is
limited to that kind of investigation.
ART III Section 12. Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel,
he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
No torture, force, violence, threat, intimidation, or any
other means which vitiate the free will shall be used
against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
prohibited.
Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence
against him.
The law shall provide for penal and civil sanctions for
violations of this Section as well as compensation to the
rehabilitation of victims of torture or similar practices, and
their families.
In inquiry in aid of legislation the right to counsel is not a ..
right. Of course they can always tell you that you can be
assisted by a counsel. But you have seen congressional
investigations. Resource persons, they are not accused,
they are not respondents they are referred to as resource
persons, you can appear there with a counsel and when
you have one, what is the counsel doing? Nothing. The
counsel is not allowed to speak, he maybe allowed to
confer with the resource person. That‘s the best he can do
because again the right to be assisted by the counsel,
preferably of his own choice found in section 12 Article 3
in criminal investigations not under section 21 article 6 in
inquiries and legislation.
Section 21. The Senate or the House of Representatives
or any of its respective committees may conduct inquiries
in aid of legislation in accordance with its duly published
rules of procedure. The rights of persons appearing in, or
affected by, such inquiries shall be respected.
CONSTITUTIONAL LAW I REVIEW TSN 45
Aug 1, 2017 A.Ruyeras
Act as Board of Canvassers for the Presidential and
Vice-Presidential Elections
Art VII SECTION 4 (4). xxx The returns of every election
for President and Vice-President, duly certified by the
board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of
the Senate. Upon receipt of the certificates of canvass,
the President of the Senate shall, not later than thirty days
after the day of the election, open all certificates in the
presence of the Senate and the House of Representatives
in joint public session, and the Congress, upon
determination of the authenticity and due execution
thereof in the manner provided by law, canvass the votes.
xxx
Based on your election laws, the certificates of canvass
coming from the lower canvassing bodies, as we all know
under the Automated Elections, seems to be for purposes
of proclamation only. The only matter, perhaps, that‘s
worthy of discussion there is in case of a tie.
We all know that the Constitution says that each House
will choose who among those engaged in a tie who will
become the President and Vice-President. The question
is, what if one house would choose candidate A while the
other house will choose candidate B. Who will then
become the President or Vice-President? Your
Constitution does not answer that question because
seemingly, in our political set-up, it‘s always that the
contenders for the Presidency and the Vice-Presidency
would usually be coming from the ―majority parties‖. And
so, perhaps, by sheer historical perspective, the majority in
both houses would usually belong to the same party for
which they would normally choose the party member who
figured out in a tie.
Call out special elections for President and Vice-
President
Art VII SECTION 10. The Congress shall, at ten
o‘clock in the morning of the third day after the
vacancy in the offices of the President and Vice-
President occurs, convene in accordance with its
rules without need of a call and within seven days
enact a law calling for a special election to elect a
President and a Vice-President to be held not earlier
than forty-five days nor later than sixty days from the
time of such call. The bill calling such special election
shall be deemed certified under paragraph 2, Section
26, Article VI of this Constitution and shall become
law upon its approval on third reading by the
Congress. Appropriations for the special election shall
be charged against any current appropriations and
shall be exempt from the requirements of paragraph
4, Section 25, Article VI of this Constitution. The
convening of the Congress cannot be suspended nor
the special election postponed. No special election
shall be called if the vacancy occurs within eighteen
months before the date of the next presidential
election.
Under the Rule on Succession in both offices, if there‘s a
vacancy during the term, Congress will have to enact a
law to call for special elections. The Congress will convene
without need of call even if it is not in session. The bill
calling out for the special election must be certified and we
all know that if it is certified, it will be exempted from the
requirements of the usual passage. It is also certified to be
funded. When there is a law requiring public spending,
there must be ordinarily, a certification of availability of
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
funds or a corresponding revenue proposal for the funds.
But in case of special elections, the Constitution says, it is
deemed to be funded.
Revoke or extend the suspension of the privilege of
the writ of habeas corpus and declaration of martial
law
Art VII SECTION 18. The President shall be the
Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof
under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of
at least a majority of all its Members in regular or
special session, may revoke such proclamation or
suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such
proclamation or suspension for a period to be
determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-
four hours following such proclamation or suspension,
convene in accordance with its rules without any need
of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the operation
of the Constitution, nor supplant the functioning of the
civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of
the writ.
The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or
offenses inherent in or directly connected with the
invasion.
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be
released.
So on July 22, we have seen the spectacle that Congress
voted to extend and grant the request for extension (of
Martial Law). If you have read the deliberations, largely it
was a political decision. There‘s not much that can be
done about it because there is no petition filed in court to
question the grant of extension. But if you could have read
the reasons for the grant of the extension at least, based
on news reports, President Duterte says it is needed to be
extended because of the need to rehabilitate Marawi. The
military says there are only about 60 or less of the Maute,
so why need extension upto December 31? Because
46 CONSTITUTIONAL LAW I REVIEW TSN
apparently, the need to rehabilitate is the primordial
consideration because the President said, if there is no
Martial Law, the procurement law, R.A. 8194 will
necessary hamper the rehabilitation process. If there is
Martial Law, the procurement will be exempted from
complying with your National Appropriations Act.
If you base it on Lagman (*Note: I did not find this case
under the topics covered by this lecture), then the basis
would be rebellion that would justify the calling of the
declaration of martial law as well as the suspension of the
privilege of the writ of habeas corpus. In any extension, for
academic discussion, it must also require rebellion,
invasion and that the public safety requires it. No other
justification can be a ground for the extension except the
same parameters or rebellion, invasion and public safety
requires it. Not even the bypassing of the procurement
law. That‘s why you have to understand why there were
some objections. But because it is a political decision by
Congress, extension was granted.
If we base it on the ruling of David vs. GMA, any
declaration saying that there is a state of national
emergency cannot grant the President any power which is
not exercised by the President under ordinary
circumstances. Assuming that there is a declaration of
Martial Law, there is no suspension of the Constitution or
any of its provisions. So how could the national
procurement law be suspended as well? Obviously,
members of Congress did not put it that way because of
political considerations.
DAVID vs. ARROYO
FT: The Constitution grants the President, as Commander-
in-Chief, a sequence of graduated powers. From the most
to the least benign, these are: the calling-out power, the
power to suspend the privilege of the writ of habeas
corpus, and the power to declare Martial
Law. Citing Integrated Bar of the Philippines v.
Zamora, the Court ruled that the only criterion for the
exercise of the calling-out power is that whenever it
becomes necessary, the President may call the armed
forces to prevent or suppress lawless violence,
invasion or rebellion. Are these conditions present in the
instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Office‘s vast
intelligence network, she is in the best position to
determine the actual condition of the country.
Under the calling-out power, the President may summon
the armed forces to aid him in suppressing lawless
violence, invasion and rebellion. This involves ordinary
police action. But every act that goes beyond the
President‘s calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the
exercise of his powers. He cannot invoke a greater power
when he wishes to act under a lesser power. There lies
the wisdom of our Constitution, the greater the power, the
greater are the limitations. xxx
Executive, legislative, and judicial powers are dispersed to
the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of
emergency. Each branch is given a role to serve as
limitation or check upon the other. xxx
In times of emergency, our Constitution reasonably
demands that we repose a certain amount of faith in the
basic integrity and wisdom of the Chief Executive but, at
the same time, it obliges him to operate within carefully
prescribed procedural limitations.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Approve Presidential Amnesties
Art VII SECTION 19. Except in cases of
impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves,
commutations and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with
the concurrence of a majority of all the Members of
the Congress.
To grant an amnesty, as we all know is not a private act of
the president, it is an official act by the President
shared with Congress because it is a diminution of
sovereignty. The sovereign right for power to prosecute
criminal offenders is not to be waived by the president
alone but must require concurrence of the Congress.
Confirm certain appointments
Art VII SECTION 9. Whenever there is a vacancy in
the Office of the Vice-President during the term for
which he was elected, the President shall nominate a
Vice-President from among the Members of the
Senate and the House of Representatives who shall
assume office upon confirmation by a majority vote of
all the Members of both Houses of the Congress,
voting separately.
Art VII SECTION 16. The President shall nominate
and, with the consent of the Commission on
Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and other officers
whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of
the Government whose appointments are not
otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions,
or boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until after
disapproval by the Commission on Appointments or
until the next adjournment of the Congress.
We discussed that already.
Concur in treaties
Art VII SECTION 21. No treaty or international
agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members
of the Senate.
Art VII SECTION 25. After the expiration in 1991 of
the Agreement between the Republic of the
Philippines and the United States of America
concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by
the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in
CONSTITUTIONAL LAW I REVIEW TSN 47
a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
The only thing to remember here in relation to Section 35
of Article XVIII, any other treaty can only be concurred by
the senate through a vote of 2/3 or qualified vote but if it is
a treaty involving the presence of foreign military troops,
bases or facilities in the Philippines, it can also be
submitted to the electorate or concurrence under Section
25. That‘s a special provision with respect to foreign
military troops, bases or facilities in the Philippines.
Your latest case there is the case of Saguisag vs. Ochoa
(2015). The VFA is the treaty and there is an executive
agreement entered into by the president in relation to the
VFA. Therefore, it does not require senate concurrence.
SAGUISAG vs. OCHOA
The plain meaning of the Constitution prohibits the entry of
foreign military bases, troops or facilities, except by way of
a treaty concurred in by the Senate - a clear limitation on
the President's dual role as defender of the State and as
sole authority in foreign relations.
Despite the President's roles as defender of the State and
sole authority in foreign relations, the 1987 Constitution
expressly limits his ability in instances when it involves the
entry of foreign military bases, troops or facilities. The
initial limitation is found in Section 21 of the provisions on
the Executive Department: "No treaty or international
agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate."
The President, however, may enter into an executive
agreement on foreign military bases, troops, or facilities, if
(a) it is not the instrument that allows the presence of
foreign military bases, troops, or facilities; or (b) it merely
aims to implement an existing law or treaty.
The President may generally enter into executive
agreements subject to limitations defined by the
Constitution and may be in furtherance of a treaty already
concurred in by the Senate.
The power of the President to enter into binding executive
agreements without Senate concurrence is already well-
established in this jurisdiction. That power has been
alluded to in our present and past Constitutions, in various
statutes, in Supreme Court decisions, and during the
deliberations of the Constitutional Commission. They
cover a wide array of subjects with varying scopes and
purposes, including those that involve the presence of
foreign military forces in the country.
Executive agreements may dispense with the requirement
of Senate concurrence because of the legal mandate with
which they are concluded. As culled from the afore-quoted
deliberations of the Constitutional Commission, past
Supreme Court Decisions, and works of noted
scholars, executive agreements merely involve
arrangements on the implementation of existing policies,
rules, laws, or agreements. They are concluded (1) to
adjust the details of a treaty; (2) pursuant to or upon
confirmation by an act of the Legislature; or (3) in the
exercise of the President's independent powers under the
Constitution. The raison d'etre of executive agreements
hinges on prior constitutional or legislative authorizations.
Declaration of war and delegation of emergency
powers
Art VI SECTION 23. (1) The Congress, by a vote of
two-thirds of both Houses in joint session assembled,
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4-MANRESA 2017-2018
voting separately, shall have the sole power to
declare the existence of a state of war.
(2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it
may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment
thereof.
We said, that the delegation of emergency powers is an
example of the constitutionally granted allowable
delegated power of the president. The first is the flexible
tariff clause. The Constitution itself has provided for the
limitations. If you remember, the provision says that:
1. There is a declaration of national emergency;
2. There must be a law delegating the power to the
president;
3. The delegated power must be for a limited period;
4. Those are necessary to carry out a fair national
policy.
The same provision also limits the extent of the efficacy of
the delegated authority. It can be withdrawn not by a law
but by a mere resolution while the Congress voluntarily
adjourns. The reason why there is delegation is to meet
the national emergency, which Congress cannot possibly
meet in terms of legislation because of the delay in the
passage of a bill. So, for there to be an immediate
response from the government through legislation,
Congress may delegate the power to the President.
If you remember, one of the earliest at the time of the
assumption of President Duterte to the presidency, June
30 last year was the concept of delegating the power to
him to address the traffic situation in Manila. However, up
to today, there has been no law passed granting a
delegated authority. The committee of Senator Grace Poe
has yet to come up with a proposal for the proposed
legislations. But that was one of the earliest proposals
because traffic problem in Manila is considered a national
emergency and therefore, it has to be addressed and part
of the suggestion is to delegate to the President such
powers. But it needed legislation to be passed.
Be the judge of the President’s physical fitness or
capacity
Art VII SECTION 11. Whenever the President
transmits to the President of the Senate and the
Speaker of the House of Representatives his written
declaration that he is unable to discharge the powers
and duties of his office, and until he transmits to them
a written declaration to the contrary, such powers and
duties shall be discharged by the Vice-President as
Acting President.
Whenever a majority of all the Members of the
Cabinet transmit to the President of the Senate and to
the Speaker of the House of Representatives their
written declaration that the President is unable to
discharge the powers and duties of his office, the
Vice-President shall immediately assume the powers
and duties of the office as Acting President.
Thereafter, when the President transmits to the
President of the Senate and to the Speaker of the
House of Representatives his written declaration that
no inability exists, he shall reassume the powers and
duties of his office. Meanwhile, should a majority of all
48 CONSTITUTIONAL LAW I REVIEW TSN
the Members of the Cabinet transmit within five days
to the President of the Senate and to the Speaker of
the House of Representatives their written declaration
that the President is unable to discharge the powers
and duties of his office, the Congress shall decide the
issue. For that purpose, the Congress shall convene,
if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the
last written declaration, or, if not in session, within
twelve days after it is required to assemble,
determines by a two-thirds vote of both Houses,
voting separately, that the President is unable to
discharge the powers and duties of his office, the
Vice-President shall act as the President; otherwise,
the President shall continue exercising the powers
and duties of his office.
This refers to the temporary incapacity of the president
because of illness or ailment while in office. This was a
reaction to the experience during the time of Marcos that
there were instances suspicions or rumors that he was no
longer running the government because of his ailment. As
an additional power in the Constitution, Congress is now
given the power to decide the question of physical
incapacity.
Even the majority of the members of the cabinet, they
have the power to declare the president as temporarily
incapacitated. The 1987 Constitution did not yet envision,
perhaps, the advancement of technology. And so, even if
the President is outside the country, it does not mean that
he is physically incapacitated because of technology. The
president can run state affairs even if he is outside the
country. And so, even the declaration of martial law was
issued while the President was in an international
convention. The president can run the country even if he is
not physically present in the territory.
Before the SONA, the president was out for several days
and there were speculations that he was sick or is dying.
And from both sides of the political spectrum, those
against, demanded for the president‘s state of health to
the public; for those for him, they said that he has the right
to take a rest and be out of the public limelight. To
assuage the fear or at least stop the suspicion, Duterte
came up with some photos that he was actually doing
work while in the privacy of his home or in his office,
therefore, ending the suspicion that he was not running the
government. So, you don‘t expect the majority of the
Congress to declare him as temporarily incapacitated.
Power of impeachment
Art IX SECTION 2. The President, the Vice-
President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the
Ombudsman may be removed from office, on
impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public
trust. All other public officers and employees may be
removed from office as provided by law, but not by
impeachment.
The power of impeachment is one of the powers of
congress which is not legislative in character. It is a sui
generis proceeding, more of quasi-judicial, because they
judge the capacity of an impeachable officer to remain in
office or impeach him.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
There are five (5) impeachable officers in the
Constitution and the list is exclusive. No other officer not
listed there are impeachable. They are:
1. President;
2. Vice-President;
3. Members of the Supreme Court;
4. Constitutional Commissioners; and
5. Ombudsman.
Outside of those five, other officers may be removed on a
ground provided for by law but not through impeachment.
If you remember the case of Gonzales vs. Office of the
President, it dealt with the question on whether the deputy
ombudsman and the special prosecutor are subject to the
disciplinary powers of the president.
In the first decision (2012), the Supreme Court said yes
because they are not impeachable. Although the rules of
the Ombudsman provides for the grounds for their removal
which is similar to the grounds of impeachment, the SC
said that they are not impeachable officers just the same.
In the second decision based on a motion for
reconsideration (2014), the SC reconsidered its first ruling
and said this time, that the Deputy Ombudsman is not
subject to impeachment but is also not subject to the
disciplinary authority of the president. The intent of the
Constitution and the law creating the Ombudsman is to
shield it from political pressure. To subject the deputies to
the power of the president to remove them will negate the
Constitutional intent to shield them from political pressure.
So the question then now, who can remove the deputies?
The SC said, it is the Ombudsman. And if the Ombudsman
will not discipline the deputies, there should be no fear
because that may be a ground for impeachment of the
Ombudsman himself or herself.
The special prosecutor, however, is under the power of the
president to discipline because there is no conflict on the
intent to shield the Ombudsman from the political
pressures of the chief executive.
From the full text:
GONZALES vs. OFFICE OF THE PRESIDENT
(2014)
In the voting held on January 28, 2014, by a vote of 8-
7, the Court resolved to reverse its September 4,
2012 Decision insofar as petitioner Gonzales is
concerned (G.R. No. 196231). We declared Section
8(2) of RA No. 6770 unconstitutional by granting
disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the
Office of the Ombudsman.
However, by another vote of 8-7, the Court resolved
to maintain the validity of Section 8(2) of RA No. 6770
insofar as Sulit is concerned. The Court did not
consider the Office of the Special Prosecutor to be
constitutionally within the Office of the Ombudsman
and is, hence, not entitled to the independence the
latter enjoys under the Constitution.
The grounds (for impeachment) are also exclusive:
a. Treason;
b. Bribery;
c. Culpable violation of the Constitution;
d. Graft and Corruption;
e. Other High Crimes; and
f. Betrayal of Public Trust.
Treason, Bribery and Graft and Corruption are defined by
law. Just like in the case of Lagman (*Note: Again, I did
not find this case under the topics covered by this lecture),
CONSTITUTIONAL LAW I REVIEW TSN 49
where the definition must be the same as that of the
Revised Penal Code.
Culpable violation of the Constitution, Other High Crimes
and Betrayal of Public Trust have not yet been defined. As
you have seen in the Corona impeachment, the mere
failure to completely and accurately fill-up the sworn SALN
is considered betrayal of public trust.
In the same Gonzales case however (Gonzales vs. Office
of the President), the SC had the occasion to
characterize if not define what “betrayal of public trust”
is. It said, they refer to acts which are just short of being
criminal but constitute gross faithlessness against public
trust, tyrannical use of power, inexcusable negligence of
duty, favoritism and gross exercise of discretionary
powers. In other words, it may be less than criminal but
must be attended by bad faith of such gravity and
seriousness as the other grounds for impeachment.
GONZALES vs. OFFICE OF THE PRESIDENT (2012)
ORIGINAL CASE
Betrayal of public trust is a new ground for
impeachment under the 1987 Constitution added to the
existing grounds of culpable violation of the
Constitution, treason, bribery, graft and corruption and
other high crimes. While it was deemed broad enough
to cover any violation of the oath of office, the
impreciseness of its definition also created
apprehension that "such an overarching standard may
be too broad and may be subject to abuse and arbitrary
exercise by the legislature." Indeed, the catch-all phrase
betrayal of public trust that referred to "all acts not
punishable by statutes as penal offenses but,
nonetheless, render the officer unfit to continue in office"
could be easily utilized for every conceivable
misconduct or negligence in office. However,
deliberating on some workable standard by which the
ground could be reasonably interpreted, the
Constitutional Commission recognized that human error
and good faith precluded an adverse conclusion.
The Constitutional Commission eventually found it
reasonably acceptable for the phrase betrayal of public
trust to refer to "acts which are just short of being
criminal but constitute gross faithlessness against public
trust, tyrannical abuse of power, inexcusable negligence
of duty, favoritism, and gross exercise of discretionary
powers." In other words, acts that should constitute
betrayal of public trust as to warrant removal from office
may be less than criminal but must be attended by bad
faith and of such gravity and seriousness as the other
grounds for impeachment.
To initiate it, it must be in the lower house. Note that it
should be initiated by a member of the lower house. Or if
not, by any person but coupled with a resolution of a
member of the lower house. There can, therefore, be no
anonymous complaints. It must be named so that you can
be targeted and killed (Lels). That‘s not the reason. It must
have been from a known complainant, either by a member
of the lower house or coupled with a resolution of a
member of the lower house.
If we go to the proceedings, what‘s important to remember
is that the report of the committee which are your articles
of impeachment must be voted by the plenary and the
plenary must vote at least 1/3 to approve or override the
decision of the committee as to the articles of
impeachment.
When the articles of impeachment are approved, it will be
sent to the upper house or senate for trial. The
impeachable officer will be judged by the Senate and if the
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
President is on trial, the Chief Justice will be the presiding
officer of the impeachment court. As you have seen in the
Corona impeachment, it is a political decision. Even if the
grounds of Treason, Bribery, Graft and Corruption may be
legally defined, the decision will somehow come from the
members of the Senate which may be outside of the legal
characterization of these offenses.
If you have seen the Estrada impeachment, they did not
use the grounds which can be legally defined because it is
easier to convict an impeachable officer for the three other
grounds which have not yet been defined.
A qualified majority of 2/3 of the members of the Senate is
required to convict. Once convicted, the decision will be to
remove (the impeachable officer) and perpetual
disqualification as accessory penalty. There is no
imprisonment as penalty.
If the impeachable officer is not found guilty or liable by the
required votes, the impeachable officer can no longer be
charged for the same offense.
Once guilty, the impeachable officer removed is now open
to any kind of case that may be filed by reason by the act
complained of subject if the impeachment case.
The impeachable officer is protected by the so-called
“one-year ban.” Meaning, when the impeachment
complaint has been filed and referred, that impeachable
officer cannot be charged anew with a different complaint.
The case of Gutierrez vs. HR Committee on Justice
clarified that it is not the mere filing of the complaint which
will be reckoned for the purposes of the one year ban but
the referral by the plenary to the appropriate
committee.
GUTIERREZ vs. HR COMMITTEE ON JUSTICE
The one-year bar rule
Article XI, Section 3, paragraph (5) of the Constitution
reads:
No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
Petitioner reckons the start of the one-year bar from
the filing of the first impeachment complaint against her on
July 22, 2010. xxx
On the other hand, public respondent, respondent Reyes
group and respondent-intervenor submit that the initiation
starts with the filing of the impeachment complaint and
ends with the referral to the Committee. xxx
Contrary to petitioner‘s asseveration, Francisco states that
the term initiate means to file the complaint and take initial
action on it. The initiation starts with the filing of the
complaint which must be accompanied with an action to
set the complaint moving. It refers to the filing of the
impeachment complaint coupled with Congress taking
initial action of said complaint. The initial action taken by
the House on the complaint is the referral of the complaint
to the Committee on Justice.
xxx
The Court, of course, does not downplay the importance of
an impeachment complaint, for it is the matchstick that
kindles the candle of impeachment proceedings. The filing
of an impeachment complaint is like the lighting of a
matchstick. Lighting the matchstick alone, however,
50 CONSTITUTIONAL LAW I REVIEW TSN
cannot light up the candle, unless the lighted matchstick
reaches or torches the candle wick. Referring the
complaint to the proper committee ignites the
impeachment proceeding. With a simultaneous referral of
multiple complaints filed, more than one lighted
matchsticks light the candle at the same time. What is
important is that there should only be
ONE CANDLE that is kindled in a year, such that once
the candle starts burning, subsequent matchsticks
can no longer rekindle the candle.
A restrictive interpretation renders the impeachment
mechanism both illusive and illusory.
So the procedure seemingly is this, once it is filed, it will be
calendared for the inclusion of the plenary‘s discussion.
Once it is calendared and discussed, it will be referred to
the committee for the appropriate study. And the rules of
the house will tell us, that there are two (2) determinations
to be made:
a. The propriety of the form;
b. The propriety of the substance.
Once there is a finding that it is not proper as to form
and/or substance, that is the end of it. But once it is so,
there will be a report, that will be actually your ―articles of
impeachment‖, which will be voted upon in the plenary.
The one-year period for the purposes of the ban against
the filing of another impeachment complaint is reckoned
from the time the complaint is referred to the appropriate
committee for study. That is, the Committee of Justice and
Good Government.
Judicial Review. For purposes of procedure, there can be
a judicial review whether the procedure as laid down in the
Constitution has been followed, especially the voting. On
the substantive aspect on the findings of the Senate of
liability on any of the grounds, I would submit that if the
grounds would be treason, bribery and graft and
corruption, that could be subjected to judicial review by the
courts. You don‘t expect members of the Senate who are
not lawyers (Like Trillanes and Hontiveros. Lels.) to
convict based on this legal definition. But for the purpose
of the three other grounds, even the Supreme Court may
have a hard time reviewing whether there is basis for the
Senate to conclude whether there is a culpable violation of
the Constitution, Other High Crimes or Betrayal of Public
Trust.
Power with regard to the utilization of natural
resources
Art XII SECTION 2. All lands of the public domain,
waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception
of agricultural lands, all other natural resources shall
not be alienated. The exploration, development, and
utilization of natural resources shall be under the full
control and supervision of the State. The State may
directly undertake such activities, or it may enter into
co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements
may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and
under such terms and conditions as may be provided
by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be
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4-MANRESA 2017-2018
the measure and limit of the grant.
The State shall protect the nation‘s marine wealth in
its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
The Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to
subsistence fishermen and fishworkers in rivers,
lakes, bays, and lagoons.
The President may enter into agreements with
foreign-owned corporations involving either technical
or financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms
and conditions provided by law, based on real
contributions to the economic growth and general
welfare of the country. In such agreements, the State
shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every
contract entered into in accordance with this
provision, within thirty days from its execution.
9. Legislative Process
Requirements as to Bills
As to titles of bills
Art VI SECTION 26. (1) Every bill passed by the
Congress shall embrace only one subject which shall
be expressed in the title thereof.
(2) No bill passed by either House shall become a law
unless it has passed three readings on separate days,
and printed copies thereof in its final form have been
distributed to its Members three days before its
passage, except when the President certifies to the
necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill,
no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and the
yeas and nays entered in the Journal.
We already made mention of this. The title of the bill must
be indicative of the subject of the bill. There are three (3)
reasons for that:
1. To avoid log-rolling legislation;
*Note: This is not included in the course outline but I
inserted it for purposes of defining this term:
GOVERNMENT vs HSBC
Appellees contend that no bill which may be enacted into
law shall embrace more than one subject, and that subject
shall be expressed in the title of the bill. It has been said
that the purpose of such provision is to prevent the evils of
so called omnibus bills and surreptitious or unconsidered
legislation. "The mischief sought to be remedied by the
requirement of a single subject or object of legislation was
the practice of bringing together in one bill matters having
no necessary or proper connection with each other but
often entirely unrelated and even incongruous. By the
practice of incorporating in proposed legislation of a
meritorious character provisions not deserving of general
favor but which, standing alone and in their own merits,
CONSTITUTIONAL LAW I REVIEW TSN 51
were likely to be rejected, measures which could not have
been carried without such a device and which were
sometimes of a pernicious character were often
incorporated in the laws for, to secure needed and
desirable legislation, members of the legislative were, by
this means, often induced to sanction and actually vote for
provisions which, if presented as independent subjects of
legislation, would not have received their support. It was
also the practice to include in the same bill wholly
unrelated provisions, with the view of combining in favor of
the bill the supporters of each, and thus securing the
passage of several measures, no one of which could
succeed on its own merits. To do away with this hodge
podge or 'log rolling' legislation was one, and perhaps
the primary, object of this constitutional provisions.
2. To apprise or give fair notice to the members
of Congress as to the subject of legislation;
and
3. To give fair notice or warning to the public of
the subject of the intended legislation in case
they want to be heard on the subject matter
before it is discussed finally.
The title need not be a table of contents or index of the
subject of the bill for so long as a reading of the title will
give a reasonable information as to the subject of the
legislation that would be sufficient.
Which should prevail, the title of the statute or the text?
Your cases will say that it is the TITLE that will prevail
because it will give the general subject of the intended
legislation or the proposed legislation.
Your case of Imbong vs. Ochoa is the RH Law. The
discussion on the one-subject, one-title rule there is that
there are some provisions in the RH Law which are not
reasonably indicative of the title. The Supreme Court
reminded everyone that the long title of the act is
―Responsible Parenthood and Reproductive Health Law‖
because people only refer to it as RH Law. However, there
is also Responsible Parenthood aspect of the law which
some of these questioned provisions would relate to.
IMBONG vs OCHOA
It is well-settled that the "one title-one subject" rule does
not require the Congress to employ in the title of the
enactment language of such precision as to mirror, fully
index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object
which the statute seeks to effect, and where, as here, the
persons interested are informed of the nature, scope and
consequences of the proposed law and its operation.
Moreover, this Court has invariably adopted a liberal rather
than technical construction of the rule "so as not to cripple
or impede legislation."
The one subject/one title rule expresses the principle that
the title of a law must not be "so uncertain that the
average person reading it would not be informed of the
purpose of the enactment or put on inquiry as to its
contents, or which is misleading, either in referring to or
indicating one subject where another or different one is
really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."
Considering the close intimacy between "reproductive
health" and "responsible parenthood" which bears to the
attainment of the goal of achieving "sustainable human
development" as stated under its terms, the Court finds no
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4-MANRESA 2017-2018
reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed
legislation.
Requirements as to certain bills
Origin of bills. We made mention already. Where did it
come from? Revenue, appropriations and tax bills must
come from the lower house. Bills of local application,
private bills and bills increasing public debt also should
come from the lower house.
(a) Appropriations Law
Art VII SECTION 22. The President shall submit to
the Congress within thirty days from the opening of
every regular session, as the basis of the general
appropriations bill, a budget of expenditures and
sources of financing, including receipts from existing
and proposed revenue measures.
Art VI SECTION 24. All appropriation, revenue or
tariff bills, bills authorizing increase of the public debt,
bills of local application, and private bills shall
originate exclusively in the House of Representatives,
but the Senate may propose or concur with
amendments.
Art VI SECTION 25. (1) The Congress may not
increase the appropriations recommended by the
President for the operation of the Government as
specified in the budget. The form, content, and
manner of preparation of the budget shall be
prescribed by law.
(2) No provision or enactment shall be embraced in
the general appropriations bill unless it relates
specifically to some particular appropriation therein.
Any such provision or enactment shall be limited in its
operation to the appropriation to which it relates.
(3) The procedure in approving appropriations for the
Congress shall strictly follow the procedure for
approving appropriations for other departments and
agencies.
(4) A special appropriations bill shall specify the
purpose for which it is intended, and shall be
supported by funds actually available as certified by
the National Treasurer, or to be raised by a
corresponding revenue proposed therein.
(5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the President
of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions
may, by law, be authorized to augment any item in the
general appropriations law for their respective offices
from savings in other items of their respective
appropriations.
(6) Discretionary funds appropriated for particular
officials shall be disbursed only for public purposes to
be supported by appropriate vouchers and subject to
such guidelines as may be prescribed by law.
(7) If, by the end of any fiscal year, the Congress shall
have failed to pass the general appropriations bill for
the ensuing fiscal year, the general appropriations law
for the preceding fiscal year shall be deemed
52 CONSTITUTIONAL LAW I REVIEW TSN
reenacted and shall remain in force and effect until
the general appropriations bill is passed by the
Congress.
Two (2) things in relation to appropriations:
First, under Section 25, you must remember that the
provisions in an appropriations bill are technically ―items‖.
―Items‖ are specific sums of money or specific
expenditure. Just because words and phrases appear in
an appropriations bill, it does not mean that they are
―items‖. So technically, there must have to be a specific
sum for a specific expenditure.
That‘s why in the case of Belgica vs. Ochoa on the
PDAF. The Supreme Court made mention that what the
PDAF provision has provided is a lump sum appropriation
and that is what is approved by Congress. After approval
by the appropriations provision in the GAA, individual
members of Congress would then exercise discretion as to
how the lump sum appropriations for each member will be
spent and how it will be spent. Technically, they will have
the discretion to determine how much of the lump sum
should go and where it should go. That discretion,
according to the Supreme Court, post-approval, is referred
to as INTERMEDIATE APPROPRIATION which is NOT
CONSTITUTIONAL. It violates a lot of principles including
the principle of non-delegation of powers. When Congress
approves an appropriation, it technically approves the
expenditure to be done and it would have to be made by
the executive, in implementing the decisions. Individual
legislators should not have a hand in the implementation
on what has been approved in the General Appropriations
Bill.
BELGICA vs OCHOA
Under the 2013 PDAF Article, the amount of ₱24.79 Billion
only appears as a collective allocation limit since the said
amount would be further divided among individual
legislators who would then receive personal lump-sum
allocations and could, after the GAA is passed, effectively
appropriate PDAF funds based on their own discretion. As
these intermediate appropriations are made by legislators
only after the GAA is passed and hence, outside of the
law, it necessarily means that the actual items of PDAF
appropriation would not have been written into the General
Appropriations Bill and thus effectuated without veto
consideration. This kind of lump-sum/post-enactment
legislative identification budgeting system fosters the
creation of a budget within a budget" which subverts the
prescribed procedure of presentment and consequently
impairs the President‗s power of item veto. As petitioners
aptly point out, the above-described system forces the
President to decide between (a) accepting the entire
₱24.79 Billion PDAF allocation without knowing the
specific projects of the legislators, which may or may not
be consistent with his national agenda and (b) rejecting
the whole PDAF to the detriment of all other legislators
with legitimate projects.
Moreover, even without its post-enactment legislative
identification feature, the 2013 PDAF Article would remain
constitutionally flawed since it would then operate as a
prohibited form of lump-sum appropriation above-
characterized. In particular, the lump-sum amount of
₱24.79 Billion would be treated as a mere funding source
allotted for multiple purposes of spending, i.e.,
scholarships, medical missions, assistance to indigents,
preservation of historical materials, construction of roads,
flood control, etc. This setup connotes that the
appropriation law leaves the actual amounts and purposes
of the appropriation for further determination and,
therefore, does not readily indicate a discernible item
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
which may be subject to the President‗s power of item
veto.
In fact, on the accountability side, the same lump-sum
budgeting scheme has, as the CoA Chairperson relays,
"limited state auditors from obtaining relevant data and
information that would aid in more stringently auditing the
utilization of said Funds." Accordingly, she recommends
the adoption of a "line by line budget or amount per
proposed program, activity or project, and per
implementing agency."
Hence, in view of the reasons above-stated, the Court
finds the 2013 PDAF Article, as well as all Congressional
Pork Barrel Laws of similar operation, to be
unconstitutional. That such budgeting system provides for
a greater degree of flexibility to account for future
contingencies cannot be an excuse to defeat what the
Constitution requires. Clearly, the first and essential truth
of the matter is that unconstitutional means do not justify
even commendable ends.
The 2013 PDAF Article cannot be properly deemed as a
legal appropriation under the said constitutional provision
precisely because, as earlier stated, it contains post-
enactment measures which effectively create a system of
intermediate appropriations. These intermediate
appropriations are the actual appropriations meant for
enforcement and since they are made by individual
legislators after the GAA is passed, they occur outside the
law. Irrefragably, the 2013 PDAF Article does not
constitute an "appropriation made by law" since it, in its
truest sense, only authorizes individual legislators to
appropriate in violation of the non-delegability principle as
afore-discussed.
Second, the concept of INAPPROPRIATE PROVISIONS.
They are those which do not refer to an ―item‖. An ―item‖
again would refer to a specific sum or a specific
expenditure. It can either be goods, services or projects. If
it has nothing to do with an item, the words and phrases
found in an appropriations bill will be considered as
inappropriate. Under the Doctrine of Inappropriate
Provisions, these provisions can be deleted not because
of the item or line-item veto power of the President but
because they are inappropriate for inclusion in an
appropriations bill.
Your DAP ruling, Araullo vs. Aquino, highlights the so-
called transfer of funds. In transfer of funds under Section
25 number 5, the requirements are simple:
ARAULLO vs. AQUINO
Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under
Section 25(5), supra, must be made upon a concurrence
of the following requisites, namely:
(1) There is a law authorizing the President, the President
of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court,
and the heads of the Constitutional Commissions to
transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from
the appropriations for their respective offices; and
CONSTITUTIONAL LAW I REVIEW TSN 53
(3) The purpose of the transfer is to augment an item in
the general appropriations law for their respective offices.
As to the GAAs:
First Requisite – GAAs of 2011 and 2012 lacked valid
provisions to authorize transfers of funds under
the DAP; hence, transfers under the DAP were
unconstitutional.
Second Requisite – There were no savings from which
funds could be sourced for the DAP
Savings refer to portions or balances of any programmed
appropriation in this Act free from any obligation or
encumbrance which are: (i) still available after the
completion or final discontinuance or abandonment of the
work, activity or purpose for which the appropriation is
authorized; (ii) from appropriations balances arising from
unpaid compensation and related costs pertaining to
vacant positions and leaves of absence without pay; and
(iii) from appropriations balances realized from the
implementation of measures resulting in improved systems
and efficiencies and thus enabled agencies to meet and
deliver the required or planned targets, programs and
services approved in this Act at a lesser cost.
Third Requisite – No funds from savings could be
transferred under the DAP to augment deficient items
not provided in the GAA.
In conclusion, DAP is unconstitutional.
FIRST, There must have to be a law authorizing transfer of
funds;
SECOND, The law authorizing the transfer of funds refer
to the heads of the departments or offices mentioned there
(i.e. President, Senate President, Speaker of the House,
the Chairmen of the Constitutional Commissions and Chief
Justice of the Supreme Court) for their respective offices;
THIRD, There must have to be savings in the appropriated
items as approved by Congress.
In Araullo, the Supreme Court said, first, there were no
savings. Second, There was no law authorizing transfer.
The law authorizing transfer is generally found in the
General Appropriations Act itself. But in the case of
Araullo, there was no provision in the General
Appropriations Act. Assuming that there is, the transfer is
also not allowable because there are no savings.
Savings can be had because:
1. When a project is completed, there is an excess in the
fund. For whatever reason, it is a miracle probably (Lels).
But still, there is excess in the funds appropriated after the
project is complete; or
2. The project is totally abandoned and so there are
excesses in the appropriated funds. The Supreme Court
even made mention of those excesses which come from
the leaves or leave credits which have not been used up;
or
3. There has been some change orders and there is some
excess in the appropriations.
Only then can there be so-called ―savings‖.
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Third, The savings must be used to augment items
already included in the Appropriations Act. It cannot be
used to fund things, goods, projects or services which
have not been included in the Appropriations Act because
when Congress approves an Appropriations Act, it only
allows public funds to be spent for those items. If the
goods, services or projects which are to be funded with the
use of savings, assuming there are, are not found in the
Appropriations Act, then the expenditure or augmentation
is not allowed because Congress has not deemed it to be
funded when the budget was approved.
And fourth and more importantly, the Supreme Court said,
the President used the funds to be spent in other branches
of government. Allowable transfer of funds allows the
respective heads of the department to use the savings to
augment items within their respective departments. It
cannot be used to augment items in other departments.
The Supreme Court referred to it as “cross-border
transfer”, and “cross-border transfer” is not allowed
under the Constitution.
(b) Tax Laws
Art VI SECTION 28. (1) The rule of taxation shall be
uniform and equitable. The Congress shall evolve a
progressive system of taxation.
(2) The Congress may, by law, authorize the
President to fix within specified limits, and subject to
such limitations and restrictions as it may impose,
tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the
framework of the national development program of
the Government.
(3) Charitable institutions, churches and parsonages
or convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used
for religious, charitable, or educational purposes shall
be exempt from taxation.
(4) No law granting any tax exemption shall be
passed without the concurrence of a majority of all the
Members of the Congress.
Art XIV SECTION 4(3) All revenues and assets of
non-stock, non-profit educational institutions used
actually, directly, and exclusively for educational
purposes shall be exempt from taxes and duties.
Upon the dissolution or cessation of the corporate
existence of such institutions, their assets shall be
disposed of in the manner provided by law.
Proprietary educational institutions, including those
cooperatively owned, may likewise be entitled to such
exemptions subject to the limitations provided by law
including restrictions on dividends and provisions for
reinvestment.
(4) Subject to conditions prescribed by law, all grants,
endowments, donations, or contributions used
actually, directly, and exclusively for educational
purposes shall be exempt from tax.
There‘s not much there. You learned a lot of those or the
specifics in your Taxation Laws.
Procedure for the passage of bills
(*Note: Sir did not discuss this but it is in the outline)
54 CONSTITUTIONAL LAW I REVIEW TSN
Art VI SECTION 26. (1) Every bill passed by the
Congress shall embrace only one subject which shall
be expressed in the title thereof.
(2) No bill passed by either House shall become a law
unless it has passed three readings on separate days,
and printed copies thereof in its final form have been
distributed to its Members three days before its
passage, except when the President certifies to the
necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill,
no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and the
yeas and nays entered in the Journal.
Veto Power
Art VI SECTION 27. (1) Every bill passed by the
Congress shall, before it becomes a law, be
presented to the President. If he approves the same,
he shall sign it; otherwise, he shall veto it and return
the same with his objections to the House where it
originated, which shall enter the objections at large in
its Journal and proceed to reconsider it. If, after such
reconsideration, two-thirds of all the Members of such
House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by
which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of that
House, it shall become a law. In all such cases, the
votes of each House shall be determined by yeas or
nays, and the names of the Members voting for or
against shall be entered in its Journal. The President
shall communicate his veto of any bill to the House
where it originated within thirty days after the date of
receipt thereof; otherwise, it shall become a law as if
he had signed it.
(2) The President shall have the power to veto any
particular item or items in an appropriation, revenue,
or tariff bill, but the veto shall not affect the item or
items to which he does not object.
The rule on veto is ―veto all or none at all‖ for ordinary bills
submitted to the President by the Congress. Upon
enrollment of the bill, the President has technically 30 days
to act on the bill whether the bill is to be approved or to
veto the same. The President has 30 days to do that.
Otherwise, the bill will become a law without any action on
the part of the President. Your Anti-Distracted Driving Act
is your latest example of a bill which has lapsed into a law
because of the President‘s inaction.
The concept of veto is that the President must write a veto
message and return it to the House where the bill
originated together with the veto message within the 30-
day period. The rule is ―veto all or none at all.‖
The exceptions would be (when the ―veto all or none at all‖
does not apply) when it refers to:
1. Appropriations;
2. Revenue; or
3. Tariff Bills.
In the above instances, the President is allowed to
exercise the power we know as ―item‖ or ―line-item veto‖.
―Item‖ in relation to appropriations bill is a specific sum or
a specific expenditure. When a bill is submitted to the
President to be approved, then he can delete that ―line‖ or
other related matters to that item. That is what is referred
to as ―line-item veto‖.
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
You know the reason why it is allowable in appropriations,
revenue or tariff bills. That is, to prevent a situation that the
President will be compelled to approve everything even if
there are questionable portions or to veto everything even
when there are acceptable provisions.
Still in PDAF, the Supreme Court said it is unconstitutional
because it violates the ―item‖ or ―line-item veto‖ power of
the President. The PDAF provision is a lump sum
provision is not totally good and not totally bad. But
because there were no specifications as to how much
exactly will go the exact goods and projects, the President
is therefore prevented from exercising his power of ―item‖
or ―line-item‖ veto. The President is therefore compelled to
approve everything even if he may know that some of
these funds will not be spent in accordance with the intent
or he may be compelled to disapprove everything when he
knows that there are also some of these amounts which
could really be delivered to serve the public well. And
because of that lump sum appropriation thing, the item or
line item veto power of the president is violated.
The House can override the veto by the required vote and
let the other House override the veto as well. Once both
Houses had been successful in its discretionary power to
override the veto, the bill will become a law even without
the signature of the President. The question is, when can
a bill become a law without the signature of the
President?
1. When the bill becomes a law because of the
President‘s inaction;
2. There is a successful override of the Presidential
veto;
3. When it is passed under initiative and
referendum.
Your outline mentions of ―pocket veto‖. Your outline also
says there is no ―pocket veto‖ in the Philippines. A ―pocket
veto‖ is practiced in the US because while the President
has a certain number of days to act on the bill and
exercise veto power and to return the bill with his veto
message to the Congress, within the designated number
of days, the Congress may not be in session. Thereby,
preventing the President under the US procedure to return
the bill to Congress. So necessarily the given period of
time for him to return the bill with the veto may lapse and
therefore, under ordinary understanding, the bill will lapse
into a law. But because there is a ―pocket‖ or a ―vacuum‖,
the President cannot return the bill together with his veto
message, the bill is deemed vetoed. That‘s why it is
referred to as ―pocket veto‖. In the Philippines, there is no
such corresponding procedure. The 30-day period in the
Constitution is quite fixed. The President must return the
bill with his veto message within the period of 30 days
whether or not Congress is in session.
10. Initiative and Referendum
Art VI Section 32. The Congress shall, as early as
possible, provide for a system of initiative and referendum,
and the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject any
act or law or part thereof passed by the Congress or local
legislative body after the registration of a petition therefor
signed by at least ten per centum of the total number of
registered voters, of which every legislative district must
be represented by at least three per centum of the
registered voters thereof.
CONSTITUTIONAL LAW I REVIEW TSN 55
B. EXECUTIVE DEPARTMENT
From 2016 TSN:
1. The President
Qualifications
Art VII Section 2. No person may be elected President
unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years
of age on the day of the election, and a resident of the
Philippines for at least ten years immediately preceding
such election.
Section 3. There shall be a Vice-President who shall have
the same qualifications and term of office and be elected
with, and in the same manner, as the President. He may
be removed from office in the same manner as the
President.
The Vice-President may be appointed as a Member of the
Cabinet. Such appointment requires no confirmation.
Section 4. The President and the Vice-President shall be
elected by direct vote of the people for a term of six years
which shall begin at noon on the thirtieth day of June next
following the day of the election and shall end at noon of
the same date, six years thereafter. The President shall
not be eligible for any re-election. No person who has
succeeded as President and has served as such for more
than four years shall be qualified for election to the same
office at any time.
No Vice-President shall serve for more than two
successive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an
interruption in the continuity of the service for the full term
for which he was elected.
Unless otherwise provided by law, the regular election for
President and Vice-President shall be held on the second
Monday of May.
The returns of every election for President and Vice-
President, duly certified by the board of canvassers of
each province or city, shall be transmitted to the Congress,
directed to the President of the Senate. Upon receipt of
the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election,
open all the certificates in the presence of the Senate and
the House of Representatives in joint public session, and
the Congress, upon determination of the authenticity and
due execution thereof in the manner provided by law,
canvass the votes.
The person having the highest number of votes shall be
proclaimed elected, but in case two or more shall have an
equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the
Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing
of the certificates.
The Supreme Court, sitting en banc, shall be the sole
judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may
promulgate its rules for the purpose.
Section 5. Before they enter on the execution of their
office, the President, the Vice-President, or the Acting
President shall take the following oath or affirmation:
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
"I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice-
President or Acting President) of the Philippines, preserve
and defend its Constitution, execute its laws, do justice to
every man, and consecrate myself to the service of the
Nation. So help me God." (In case of affirmation, last
sentence will be omitted.)
The ruling in Poe vs. Comelec is relevant:
POE VS. COMELEC
There is a definitive ruling that she is a natural-born
citizen and that she has reacquired her natural born
status under 9225 and that she had also complied with
the 10-year residency requirement after she had
abandoned her own residency with US, established a
new residence or domicile in the Philippines way before
the elections of 2016.
As to one other contention there that there was a
previous statement under oath that she was a resident
of the Philippines in relation to her certificate of
candidacy for the House of Senate, the Supreme Court
said that that was an honest error because she only
indicated the number of years sufficient to satisfy the
residency requirement for the position she was applying
for. Evidence would show, as the Supreme Court has
taken note of that she intended to transfer her legal
residence or domicile in the Philippines consistent for
complying with the 10-year residency requirement.
Privileges and Salaries
ART VII Section 6. The President shall have an official
residence. The salaries of the President and Vice-
President shall be determined by law and shall not be
decreased during their tenure. No increase in said
compensation shall take effect until after the expiration of
the term of the incumbent during which such increase was
approved. They shall not receive during their tenure any
other emolument from the Government or any other
source.
The President‘s salary cannot be increased
nor decreased during his term. So that is protection from
the acts of Congress. They will enact a bill decreasing
the salary in order to hold the President hostage or
grant a reward for favor to Congress by increasing his
salary. To insulate him from that, there is a prohibition on
both.
Other privileges of the President
The Constitution provides for an official residence. When
President Duterte assumed office, this happened when
he was proclaimed or even then when it was already
certain that he would win, there were public disclosures
that he would reside in Davao City; that he would not
sleep in Malacañang because of ghosts.
These papers showed that he also made a
public announcement that he will be staying in Davao
City for at least 10 days a month. So the question is,
can the president maintain an official residence
here? The Constitution mentions of an official
residence, that official residence is any place
where the President intends to reside. It is not the
Malacañang or the guest house or Bahay ng Pagbabago
as it is called now, it sets the difference between the
President who is continuing blaming even though he is
quite away and the President today, that is why even the
name has been changed. It is to ensure or at least
56 CONSTITUTIONAL LAW I REVIEW TSN
assure that the expenses for maintaining the President
will be by public funds. As you noticed in the
Constitution as it being done now with respect to Vice
President Leni Robredo, there is no such privilege as
official residence. So Leni Robredo will continue to
ride the bus going to Naga because there is no such
thing as official transport.
When President Duterte went home one time taking the
commercial PAL flight, the question is of course, the seat
you are occupying not on the business class, but on the
economy row or for ―poor people‖. That has to be paid
by government funds, no problem. But what about the
two rows before him and I think two more rows behind
him? They were not occupied for security reasons. So
patyon nimo ang Presidente didto unya asa ka muambak
sa eroplano to escape arrest. Well, I do not know why
that was the security protocol, but nonetheless, those
are part of the privileges of the President.
To let a common-law partner is also part of that, to
reside in Bahay Pagbabago, at least sleep for
some nights. That is part of the privilege at least
of the President.
Presidential Immunity
Other discussions on privileges would be
PRESIDENTIAL IMMUNITY. Does the privilege of the
President which is not shared by the vice president until
the vice president becomes either the acting president
or the successor to the office of the President?
We understand the rationale behind the President‘s
immunity is to prevent a situation where the President
will hesitate to act immediately upon the demands of his
office for fear that he will be subjected to a case. In
fact, the presidential immunity will subsist after the term
or tenure for all legal consequences of all official acts. Of
course, if what was done during the term was illegal,
and the President is removed or after the term expired,
then he will no longer enjoy the immunity with
respect to the effects of those illegal acts. But if
these refer to the natural consequences of
official acts not attended by any of those
qualifying circumstances or factors such as bad
faith, malice, grave abuse or abuse of
authority, those are still covered by presidential
immunity so that the president will not hesitate
to act while in office to perform what is
incumbent upon him being the president or
commander-in-chief of the Philippines.
Executive Privilege
The other executive privilege is literally the CONCEPT
OF EXECUTIVE PRIVILEGE which refers to the right
of the president to refuse public disclosure of certain
matters which fall under the coverage of the executive
privilege. In the discussions on all the cases on executive
privilege where the Supreme Court started with the case
of:
US VS. NIXON
It is admitted that it is not provided for in the Constitution
expressly. But because of the fact that the President has
the power to ensure that the laws are fully implemented, it
is supposed to be, on that account that when the
President is to decide on a matter or of course on the
action to be taken, there are certain matters which the
President may not be compelled by legislative inquiry or
judicial proceedings or any form of investigation to make
 CONSTITUTIONAL LAW I REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
any public disclosures of those fact. The Supreme Court
divided however this concept of executive privilege and
we made mention of this already.
Presidential Communications Privilege and
Deliberative Process Privilege
The CONCEPT OF PRESIDENTIAL
COMMUNICATIONS PRIVILEGE and the other one,
DELIBERATIVE PROCESS PRIVILEGE where the
Supreme Court said only the presidential
communications privilege is covered. It does not cover
the second type because these are general advisory
opinion for all government offices, officers in coming
up with a decision. So only those which
technically are part of the presidential communications
privilege are covered by that.
And another discussion with respect to the privilege
enjoyed by the President being the sole representative
in foreign relations as the head of the State. The case
of:
AKBAYAN VS. AQUINO
Involving the Japan-Philippines Economic
Partnership Agreement (JPEPA) where the Supreme
Court made mention the Japan-Philippines
Economic Partnership Agreements. The petitioners
would have wanted that the President would make
public the updates of the negotiations leading to the
conclusion of the JPEPA. The petitioner contends that
it is part of our right to information that we should
be made aware of what the Philippine counterpart, the
Executive that is, is agreeing with Japan with respect to
this agreement.
The Supreme Court clarified that with respect to the final
text as approved, that cannot be kept private. But
because it is still undergoing negotiations, the Supreme
Court said that diplomatic negotiations enjoy a privilege
character likened to the presidential communications
privilege or deliberative process where it cannot be made
public while the negotiations are on-going. The Supreme
Court likened it to the executive privilege of the President
for saying which requires a prompt discussion of the
matters where to make it public at this point may hamper
the parties from coming out with agreements or
provisions to an agreement because there will be no pre
and full discussion of options ―compromises‖ that each
party will have to take ___ agreement such as this And
so, until the full text has been agreed upon, the executive
cannot be compelled to make public what the updates of
the negotiations are.
The Supreme Court, by the way, made mention in
this case that the claim of executive privilege
is not automatic citing the case of Senate vs. Ermita.
It must have to be shown, just like in the case of:
NERI VS. SENATE COMMITTE
What the fact ought to be compelled for disclosure are in
order for the court to determine whether it is covered by
the executive privilege. Meaning, a simple claim of
executive privilege does not prevent the disclosure of that.
It must have to be shown that in fact it is part of the
privilege. Same thing with the negotiations privilege where
the Supreme Court said that a simple claim of that will not
make it covered by the diplomatic negotiations privilege. It
must be shown that it is really part of the diplomatic
negotiations and to divulge this is prejudicial to public or
national interest.
CONSTITUTIONAL LAW I REVIEW TSN 57
The Supreme Court also made mention that the
privilege afforded even under presidential
communications is not absolute. It clarified that the
executive cannot shield the president, its officials, or
employees from investigations for possible criminal
wrongdoing. Stated differently, if question is asked,
can the president and his men during a discussion to
come up with the national policy, say on drugs,
discuss the possibility of committing a
wrongdoing? ―Pamatyon nato silang tanan.‖
What do you think? Is that feasible? How do we
make the extrajudicial killings valid? And so they will
discuss. They will try to be frank about it. What do
you think? What is your suggestion? And they will
come up with a policy.
The executive issuance after that obviously must have
to be made public, but as to how that policy was
eventually decided, that may be covered by
executive privilege. Even then, the question is, if they
did in fact discuss a commission of a crime or a
wrongdoing and that may be covered by the executive
privilege claiming for, can they be accountable and
compelled to make public disclosure?
They analysed it based on the US case of US vs. Nixon
to direct the commission of a crime is never covered by
the privilege. But of course, you can see our president
ordering the commission of a crime although the
discussion, it may have come across that the
commission of an illegal act will be necessary to ensure
that this country, my country, yours, will never be
destroyed by reason of drugs. So that is your executive
privilege.
Prohibitions
ART VII Section 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business,
or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government
or any subdivision, agency, or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall
strictly avoid conflict of interest in the conduct of their
office.
The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not,
during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their
subsidiaries.
The prohibitions under the Constitution are listed down.
For the executive family, there should be no other office
or employment unless ex-officio. No practice of
profession, business, or financial interest with the
government, GOCCs, agencies, instrumentalities, or
subsidiaries.
With respect to the power of appointment, the President
shall not appoint the spouse or any relative within the
fourth civil degree to the Constitutional Commission, to
the Ombudsman, Secretaries, Undersecretaries,
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Chairpersons, or Heads of the bureaus, offices including
GOCCs.
When Erap became the president, the question was
which spouse is covered by the prohibition on the
President‘s power to appoint? Because before then, our
Presidents have remained publicly married to one
individual. But when Erap was elected as President, it is
publicly known that he is legally married to one, and
would have one or several other women. Is that
common law spouse covered by the prohibition?
By the way, there are several cases here in your outline
with respect to Section 13 of Article VII. Section 13 of
Article VII must have to be literally interpreted which
allows members of the executive family to hold other
positions in the government if literally allowed in the
Constitution. Covered in that literally allowed in the
Constitution would be your Vice-President being a
member of the cabinet or acting as President, the
secretary of Justice as ex-officio member of the Judicial
and Bar Council. And third in your outline are those
which are considered as ex-officio positions.
The said section made mention of specific positions. Of
course, the President, the Vice-President, members of
the Cabinet. So, cabinet secretaries, their deputies or
assistants. So, undersecretary or assistant secretary of
the secretary of a department. It does not cover
positions with the rank of undersecretary or rank of
assistant secretary if they are not undersecretaries or
assistant secretaries of cabinet secretaries. That is the
ruling in:
PUBLIC INTEREST VS. ELMA
The position of chairperson of the PCGG and chief
presidential legal counsel because that may be of cabinet
rank, but it is not a department under your EO 292 or
Administrative Code of 1987.
So, Salvador Panelo may be of cabinet rank, but he is
not actually covered by Section 13. So he can be the
chief presidential legal counsel, presidential jester, no
problem. No prohibition because this must literally refer
to those undersecretaries and assistant secretaries as
provided for in your Administrative Code. Mayor
Evasco?, what is his position in this administration?
Secretary to the Cabinet. There is no such department in
government. So he is of cabinet rank, but he is not
covered technically by Section 13. Mr. Bong Go, he is
Undersecretary. He is the presidential management
staff, but he does not have a specific department. Of
course, they are of cabinet rank or rank of
undersecretary or assistant secretary, they may have the
same salary, but they are not covered technically by
Section 13.
In your case of:
FUNA VS. AGRA
Because this involves the appointment as acting Secretary
of Justice and acting Solicitor General, the Supreme Court
said that this is covered by Section 13 because Secretary
of Justice is a Cabinet position and to hold another position
as Solicitor General is covered by that prohibition because
that is not literally allowed in the Constitution.
There is also a mention of ex-officio. What is meant by
ex-officio? By the way, there is another case, the case
of:
FUNA VS. DUQUE
Chairperson of the Civil Service Commission Fransisco
Duque III, aside from being the Chair of Civil Service, he
58 CONSTITUTIONAL LAW I REVIEW TSN
was also a member of the board, either director or trustees
in ex-officio capacity with the GSIS, PhilHealth, Employees
Compensation Commission and Home Development
Mutual Fund or commonly known as Pag-ibig.
Magkakabahay ka dahil sa Pag-ibig for P200 pesos a
month after 24 months, you can now get a loan from Pag-
ibig, so magkakabahay ka.
The question is the taking of Chairperson Duque of such
positions as board director of trustees in ex-officio capacity
allowed because it has always been said that aside from
those literally mentioned in the Constitution as covered by
the prohibition under Section 13, generally accepted as
exception is ex-officio positions even for members of
Congress. So the Supreme Court had the occasion to
restate,
The Supreme Court said ex-officio means and there are
four considerations: (He mentioned only 3)
1. It is from office or by virtue of office.
2. The act is done in the official character without
any other appointment or authority.
3. The ex-officio position is one in which the
member by virtue of his title to a certain office
takes that office without further warrants and
most especially, there is no additional
remuneration.
When Chairperson Duque took this ex-officio position in
the Board of those GOCCs, the Supreme Court noted
that he was receiving remuneration. How much is every
meeting ba? P18,000. I don‘t know if you, of course,
during the elections, one of the friends of Mar Roxas,
Antonino who is supposed to be sitting in the SSS and
he was said to have received so many millions having
been the member of the Board. Members of the Board
do not have salaries. They only have per diems for every
board meeting attended. Unsaon pag abot ug 10 Million
ang board meeting? You meet 24 hours a day, 365 days
a year, so probably that will reach to more than 10
Million.
So, did he take the additional positions as ex-officio by
reason of his being the Chair of the Civil Service? And
reportedly because he was receiving additional
remunerations or per diem for every board meeting
attended, then that would not be ex-officio. The
Supreme Court also noticed and said in the decision that
for the Civil Service Commission Chairperson to takes
seats in the Board of GOCCs which is under the control
of the President, destroys, if not, violates the
independence of the Commission. Because his actions
now as Chairperson may be affected because he sits in
the board where the president exercises control over the
GOCCs. That being said, his appointments
violate therefore Section 13 of Article VII. So that is your
Funa vs. Duque, 2014.
Compare prohibition to the other officials with respect to
Congress, the other prohibitions remain the same. With
respect to the exercise of profession: Congress, there is
no prohibition totally except for lawyers making personal
appearance before the courts, quasi-judicial bodies,
including electoral tribunals. For members of the
executive body: There is absolutely no private practice
allowed for any kind of profession. The reason why for
those newly appointed from Davao, you know, there are
so many people in Davao appointed, who have been
appointed already. Their first question is can they leave
____. You know you are appointed, you are here with
your family, you are in private practice for example you
are a lawyer, even if you are in practice, your income is
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
largely dependent in your industry. If you just leave,
probably, you will not have income. If you work with
your industry, then you may have a lot more, there are
no limits so to speak. It is legalized robbery or hold-up.
Hold-uppers will cover their faces, lawyers will not. You
know they can bill the client without batting an
eyelash this much and their client, mura siyag
gidunggab. But the lawyer will not feel that. So first
question, if I take the position, how much will I earn?
Remember, when you are here in your comfort zone,
you may have a house here already, fully paid or if not
fully paid, under amortization or mortgage, If you go to
Manila, there is no free house there, there is no free
food, so you are as if you are living in the dormitory
taking your college education and spending for two
households. So that is a consideration, unless you are
going to stay.
The bigger ones are with the GOCCs because they are
paid handsomely. Their standardization of compensation
is different from the government standardization. It is
dependent on how much the GOCC is earning. So, a lot
are racing towards these GOCCs. If you sit in the board
of all GOCCs because you are appointed or nominated
by the government. In per diems, probably you can live
with two families if your time allows you.
Succession
The Rules are as follows:
(1) At the beginning of term
Section 7. The President-elect and the Vice President-
elect shall assume office at the beginning of their terms.
If the President-elect fails to qualify, the Vice President-
elect shall act as President until the President-elect shall
have qualified.
If a President shall not have been chosen, the Vice
President-elect shall act as President until a President
shall have been chosen and qualified.
If at the beginning of the term of the President, the
President-elect shall have died or shall have become
permanently disabled, the Vice President-elect shall
become President.
Where no President and Vice-President shall have been
chosen or shall have qualified, or where both shall have
died or become permanently disabled, the President of the
Senate or, in case of his inability, the Speaker of the
House of Representatives, shall act as President until a
President or a Vice-President shall have been chosen and
qualified.
The Congress shall, by law, provide for the manner in
which one who is to act as President shall be selected
until a President or a Vice-President shall have qualified,
in case of death, permanent disability, or inability of the
officials mentioned in the next preceding paragraph.
(2) During Term
Section 8. In case of death, permanent disability, removal
from office, or resignation of the President, the Vice-
President shall become the President to serve the
unexpired term. In case of death, permanent disability,
removal from office, or resignation of both the President
and Vice-President, the President of the Senate or, in case
of his inability, the Speaker of the House of
Representatives, shall then act as President until the
President or Vice-President shall have been elected and
qualified.
CONSTITUTIONAL LAW I REVIEW TSN 59
The Congress shall, by law, provide who shall serve as
President in case of death, permanent disability, or
resignation of the Acting President. He shall serve until the
President or the Vice-President shall have been elected
and qualified, and be subject to the same restrictions of
powers and disqualifications as the Acting President.
(3) In case of temporary disability
Section 11. Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he
transmits to them a written declaration to the contrary,
such powers and duties shall be discharged by the Vice-
President as Acting President.
Whenever a majority of all the Members of the Cabinet
transmit to the President of the Senate and to the Speaker
of the House of Representatives their written declaration
that the President is unable to discharge the powers and
duties of his office, the Vice-President shall immediately
assume the powers and duties of the office as Acting
President.
Thereafter, when the President transmits to the President
of the Senate and to the Speaker of the House of
Representatives his written declaration that no inability
exists, he shall reassume the powers and duties of his
office. Meanwhile, should a majority of all the Members of
the Cabinet transmit within five days to the President of the
Senate and to the Speaker of the House of
Representatives, their written declaration that the
President is unable to discharge the powers and duties of
his office, the Congress shall decide the issue. For that
purpose, the Congress shall convene, if it is not in session,
within forty-eight hours, in accordance with its rules and
without need of call.
If the Congress, within ten days after receipt of the last
written declaration, or, if not in session, within twelve days
after it is required to assemble, determines by a two-thirds
vote of both Houses, voting separately, that the President
is unable to discharge the powers and duties of his office,
the Vice-President shall act as President; otherwise, the
President shall continue exercising the powers and duties
of his office.
Section 12. In case of serious illness of the President, the
public shall be informed of the state of his health. The
members of the Cabinet in charge of national security and
foreign relations and the Chief of Staff of the Armed Forces
of the Philippines, shall not be denied access to the
President during such illness.
If the President is not chosen: the Vice-
President shall act until the President is chosen.
2. If the President fails to qualify even if
chosen: the Vice-President shall act until the
President qualifies.
3. If at the beginning of the term, the
President dies or becomes permanently
disabled: the Vice-President becomes the
President.
4. If during the term, the President dies, he
becomes permanently disabled, has been
removed or has resigned: the Vice-President
becomes the President.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Permanent disability
Perhaps the only discussion here is on permanent
disability. What is this permanent disability?
If you remember the case of Estrada, when he wrote a
letter which was used by the Supreme Court in its
decision that he was leaving Malacañang, the Supreme
Court took it as resignation.
Actually, what he was trying to say is that he wanted to
go home to San Juan to be with Guia Gomez because of
all the trouble of EDSA Dos, he just wants a new
environment. In Tagalog, aalis na muna ako ng
Malacañang. Gienglish man niya, so I will leave
Malacañang, I am leaving Malacañang. It was taken to
mean as a resignation or voluntary renunciation.
Because he also furnished the Senate President and the
Speaker of the House of those letters, giEnglish man
gud. Unta giTagalog na lang toh niya. Aalis muna ako,
sandali lang. Pero giEnglish man, I am leaving. And so
he took that boat from the side of Malacañang to the
Pasig River and went home to San Juan.
So what is that permanent disability? Because if we have
read the decision, there was a discussion there by one
of the Justices saying could it also be institutional
disability?
Meaning, if all institutions of the government, especially
the military and the police have already withdrawn their
support to the President, does that make you disable or
disabled already and is the disability permanent or is it
only referring to physical disability or mental disability?
Mental yata hindi kasi nagtapos si Aquino eh, hindi siya
naalis. Physical? That was a question because of our
propensity on People Power when we do not like the
President, we go to the streets kunohay so that there
will be no classes, there will be no work, street party,
happy happy, until the President leaves the office. So, is
institutional disability by reason of withdrawal of support of
the institutions in the society, would that constitute
permanent disability?
Now if there is no President and Vice-President at the
beginning of the term:
it will be the Senate President or the Speaker of
the House, in case of incapacity or refusal of the
Senate President to be acting as president.
If it is at the beginning:
The Constitution says that there shall be a determination
by Congress on the manner on who shall act as
President if both the Senate President and the Speaker
are unable to act as President.
If the vacancy in both offices occurs during the
term and both the Senate President and the
Speaker of the House are unable or unwilling:
The Constitution requires that there must be a cases of impeachment. When sitting for that purpose, the
determination of who shall act as President.
The difference in the phraseology is explained by the
need or immediate need to fill in the position as Acting
President if the vacancies in both and the unwillingness
or inability of both occur at the beginning, there is still
time to choose.
But if it is during the term, because of the need to fill in
the vacancy immediately because both are vacant and
both positions acting as President or to act as President
are unable or unwilling, there must be a determination
as to who shall act as president in the meantime.
In the political history of the Philippines, during the
Estrada impeachment and during the Oakwood Mutiny,
60 CONSTITUTIONAL LAW I REVIEW TSN
as to who shall act as President, because they did not
want members of the Congress to do so, the usual
recourse is the Chief Justice of the Supreme Court. But
of course, it has not yet happened, but he is the most
logical choice after the Senate President and the
Speaker of the House.
If Congress so desires, it can call for a special election
because it is outside the 12-month period. However, the
Speaker has already said publicly that most likelt there will
be no special elections because it will be very expensive.
Removal
Art XI Section 2. The President, the Vice-President, the
Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be
removed from office on impeachment for, and conviction
of, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may
be removed from office as provided by law, but not by
impeachment.
Art XI Section 3. The House of Representatives shall
have the exclusive power to initiate all cases of
impeachment.
A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen
upon a resolution or endorsement by any Member thereof,
which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within
three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall
submit its report to the House within sixty session days
from such referral, together with the corresponding
resolution. The resolution shall be calendared for
consideration by the House within ten session days from
receipt thereof.
A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
The Senate shall have the sole power to try and decide all
Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not vote. No
person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.
Judgment in cases of impeachment shall not extend
further than removal from office and disqualification to hold
any office under the Republic of the Philippines, but the
party convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment, according to law.
The Congress shall promulgate its rules on impeachment
to effectively carry out the purpose of this section.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
2. Control of executive department
Art VII Section 17. The President shall have control of all
the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
As compared with or distinguished from supervision, the
power of control of the executive of the president
directly over the cabinet secretaries and indirectly over
all officials and personnel of the executive department
refers to the power of the president to revise, reverse,
modify, review or affirm the actions of the subordinate
officials. He can direct the doing or undoing of an act
and can even substitute his own to that of the
subordinate.
Whereas the power of supervision under
the Constitution simply entitles the president to oversee
that the subordinate officers are performing their
tasks in accordance with law. He does not have the
power to substitute his own judgment to that of the
decisions of the subordinate officer.
DOCTRINE OF QUALIFIED POLITICAL AGENCY.
The discussion with respect to control is in relation to
the allowable delegation of executive powers under the
QUALIFIED POLITICAL AGENCY DOCTRINE. We all
understand that because of the many functions of the
president, the president cannot be expected to do
everything by himself in what is included under the
executive power and as understood under the concept
of residual powers. And so he is allowed to let members
of his cabinet to perform all the tasks that the president
should do unless he is required by the Constitution or by
law to personally do and perform the act.
The Qualified Political Agency Doctrine considers the
act or acts of the subordinate as that of the president
until changed or reprobated by the president. And there
may be situations where the president may even
delegate totally what the cabinet member can do or
perform for him. For this reason perhaps, that‘s why the
Narco(?) list of President Duterte turned out not to
be accurate because he allowed his subordinate
officer to prepare the list and there was no review,
revision or modification of the list because it still
included some who have long been dead. If only
control power has properly been exercised, it could
not have been that. But at least, if he shows that really
the task of the president is so numerous and so
there is a need for him to delegate it but at the same
time, he has to exercise control over him.
ANGELES VS. GAITE
FACTS: The case of ANGELES VS. GAITE in your outline
speaks of an old memorandum circular no. 58 of the DOJ
that unless the finding of probable cause of a case
appealed to the DOJ involves the penalty of reclusion
perpetua of higher, the decisions of the DOJ on review is
final and no longer appealable to the office of the
President.
ISSUE: This was questioned because it violates doctrine
of qualified political agency that even if the decision of the
secretary has been made, it must still be subject to review
by the president.
HELD: The SC said, it does not follow in all cases. When
there is a determination already that only cases involving
penalties of reclusion perpetua or higher can be appealed
to the president, all the rest has been fully delegated to the
DOJ. The findings of the DOJ is considered as the findings
of the president and therefore need not be appealed even
CONSTITUTIONAL LAW I REVIEW TSN 61
under the exhaustion of administrative remedies or under
the Doctrine of Qualified Political Agency
MANALANG VS. TIDCORP
FACTS: This case of MANALANG VS. TIDCORP involves
the actions of the Board of Directors of TIDCORP.
TIDCOROP is a GOCC established and created by a
special law which five of the nine members of the Board
are members of the Cabinet. They sit there because the
law designates them to sit there, not because they are
appointed by the president to sit in the board.
ISSUE: What was sought to be reviewed here is the
decision of the board considering that 5 of the 9 members
are members of the cabinet claiming that under the
doctrine of qualified political agency, the actions of the
members of the cabinet can be reviewed by the president.
HELD: SC said, when these members of the cabinet sit in
the board by appointment of law and not by the president,
they discharge functions as members of the board and not
as alter egos of the president. And so their decisions as
members of the board of TIDCORP cannot be reviewed by
the president.
Q: What actions or acts must the president
perform personally which cannot be delegated?
In the cases you have read, you have come across
these:
1. Declaration of Martial law
2. Suspension of the privilege of the writ of habeas
corpus
3. Pardoning powers – it is a private act of the
president. It cannot be exercised by anybody.
4. When the president should enter into an
executive agreement. It cannot be delegated
through a cabinet secretary even if it is the
Secretary of Foreign Affairs (Neri vs. Senate,
2008)
5. Those of similar import or importance.
You have seen cases before at the time of President
Cory Aquino that even bills can be signed into law by the
executive secretary by authority of the president. It is
not necessary that the president must at all times sign
bills enrolled and presented to the president for action to
be signed by him or acted by him personally. It can be
delegated.
3. General supervision of local governments and
autonomous regions
Now with respect to supervision, the usual discussion
here is in relation to the power of the president with
respect to Local Government Units (LGUs) because of
the concept of autonomy.
VILLAFUERTE VS. ROBREDO
Your case in point here is Villafuerte vs. Robredo. This
was an issue involving the memorandum order of then
secretary Jessie Robredo for the public posting of local
budget and finances and bids in public offerings. Failure to
comply with this Memorandum Order will result to
sanctions from the the national government.
Issue: Are LGUs subject to the power of discipline by the
national government considering that there is an express
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
grant of autonomy to local governments?
Ruling: Supervision is not incompatible with discipline. The
power to discipline and ensure that the laws be faithfully
executed must be construed to authorize the president to
order an investigation of the act or conduct of local officials
when in his opinion the good of the public service so
requires.
The president‘s power of supervision is not antithetical to
investigation and imposition of sanctions.
So while the president cannot substitute his own judgment
or decisions as that what the local government units or
officials have done, the president can actually investigate
and sanction them accordingly as the law or laws require if
there is no faithful compliance of the law as required in this
case in relation to the local DILG Code.
August 9, 2017 A. Batacan
4. Power of appointment
Art VII Section 16. The President shall nominate and, with
the consent of the Commission on Appointments, appoint
the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproved by the Commission on Appointments or
until the next adjournment of the Congress.
Then we have your power of appointments. The power to
appoint is basically executive in character. It is largely
discretionary. Discretionary in the sense that while
Congress may provide, by legislation, the qualifications for
the position, Congress cannot provide for qualifications
that only one can qualify because that will destroy the
basic nature of the Power to Appoint which is
discretionary.
If you remember the old case of FLORES V. DRILON. The
creation of the SBMA; and the law provides that the first
chairman or chairperson of the SBMA shall be the mayor
of Olongapo City.
The Supreme Court said, that provision is unconstitutional
for 2 reasons:
1. It violates the provision in the Constitution that
elective officials shall not call? any other
appointing of office during his term, that is Article
9 under CSC.
2. It violates the very nature of appointing authority,
which is discretionary. By providing that the
mayor of Olongapo City shall become the first
chairperson, that leaves the President no
discretion who to appoint, but only that who is the
mayor of Olongapo City.
FLORES VS DRILON
The principal question is whether the proviso in Sec. 13,
62 CONSTITUTIONAL LAW I REVIEW TSN
par. (d), of R.A. 7227 which states, "Provided, however,
That for the first year of its operations from the effectivity
of this Act, the mayor of the City of Olongapo shall be
appointed as the chairman and chief executive officer of
the Subic Authority," violates the constitutional proscription
against appointment or designation of elective officials to
other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
―No elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.‖
In the case before us, the subject proviso directs the
President to appoint an elective official, i.e., the Mayor of
Olongapo City, to other government posts (as Chairman of
the Board and Chief Executive Officer of SBMA). Since
this is precisely what the constitutional proscription seeks
to prevent, it needs no stretching of the imagination to
conclude that the proviso contravenes Sec. 7, first par.,
Art. IX-B, of the Constitution. Here, the fact that the
expertise of an elective official may be most beneficial to
the higher interest of the body politic is of no moment.
xxx
In any case, the view that an elective official may be
appointed to another post if allowed by law or by the
primary functions of his office, ignores the clear-cut
difference in the wording of the two (2) paragraphs of Sec.
7, Art. IX-B, of the Constitution. While the second
paragraph authorizes holding of multiple offices by an
appointive official when allowed by law or by the primary
functions of his position, the first paragraph appears to be
more stringent by not providing any exception to the rule
against appointment or designation of an elective official to
the government post, except as are particularly recognized
in the Constitution itself, e.g., the President as head of the
economic and planning agency; the Vice-President, who
may be appointed Member of the Cabinet; and, a member
of Congress who may be designated ex officio member of
the Judicial and Bar Council.
xxx
Petitioners also assail the legislative encroachment on the
appointing authority of the President. Section 13, par. (d),
itself vests in the President the power to appoint the
Chairman of the Board and the Chief Executive Officer of
SBMA, although he really has no choice under the law but
to appoint the Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation
of a person, by the person or persons having authority
therefor, to discharge the duties of some office or trust,"
or "[t]he selection or designation of a person, by the
person or persons having authority therefor, to fill an office
or public function and discharge the duties of the same.
xxx
Indeed, the power of choice is the heart of the power to
appoint. Appointment involves an exercise of discretion of
whom to appoint; it is not a ministerial act of issuing
appointment papers to the appointee. In other words, the
choice of the appointee is a fundamental component of the
appointing power.
Hence, when Congress clothes the President with the
power to appoint an officer, it (Congress) cannot at the
same time limit the choice of the President to only one
candidate. Once the power of appointment is conferred on
the President, such conferment necessarily carries the
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discretion of whom to appoint. Even on the pretext of
prescribing the qualifications of the officer, Congress may
not abuse such power as to divest the appointing
authority, directly or indirectly, of his discretion to pick his
own choice. Consequently, when the qualifications
prescribed by Congress can only be met by one individual,
such enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular
restriction on the power of appointment.
In the case at bar, while Congress willed that the subject
posts be filled with a presidential appointee for the first
year of its operations from the effectivity of R.A. 7227, the
proviso nevertheless limits the appointing authority to only
one eligible, i.e., the incumbent Mayor of Olongapo City.
Since only one can qualify for the posts in question, the
President is precluded from exercising his discretion to
choose whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is no
power at all and goes against the very nature itself of
appointment.
While it may be viewed that the proviso merely sets the
qualifications of the officer during the first year of
operations of SBMA, i.e., he must be the Mayor of
Olongapo City, it is manifestly an abuse of congressional
authority to prescribe qualifications where only one, and
no other, can qualify. Accordingly, while the conferment of
the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is
certainly an encroachment on his prerogative.
Your outline mentions of basically 4 groups whom the
President would appoint:
1. Those requiring the confirmation of the COA -
may fall under the first sentence of Sec 16 of
Article 7;
2. Those whose appointments require the prior
betting of the JBC, so the are the members of the
SC, and lower courts, the OMB and the deputies;
3. Then you have the appointment of the VP as
member of the cabinet, who is not subject to any
confirmation.
4. Then you have the rest of Section 16 - those
whom the president may appoint by law and
those whose appointments are not otherwise
provided for by law.
With respect to the first sentence of Section 16, it is just a
list – ―heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, the
members of the Constitutional Commission, and the
regular members of the JBC.‖ They are to be confirmed by
the Commision on Appointments. The list is exclusive.
There can be no law enacted requiring CA confirmation for
other offices or officials because the Constituton only
requires the confirmation of these listed officers.
Power to Remove by President
You have one case there – GONZALES VS OFFICE OF
THE PRESIDENT (2012 & 2014). We have discussed that
already in impeachment in relation to the definiton of
public trust. Just to restate, the question here was whether
the Deputy Ombudsman AND the Special Prosecutor is
subject to the power of the President to discipline by
removal or otherwise. The Supreme Court said that the
Deputy Ombudsman are ombuds persons; deputies are
not subject to the power of the President to remove or of
removal. They are supposed to enjoy the same
―autonomy‖. They should not be subject to the power of
CONSTITUTIONAL LAW I REVIEW TSN 63
the President to remove them otherwise their
independence will be affected. Only the Ombudsman can
therefore discpline them and the Ombudsman will
therefore be subjected to possible impeachment if he
refuses to punish or discipline his deputies. But the
Special Prosecutor is subject to the power of the President
on removal because he does not have to be protected of
the same independence as required of that of the
deputies.
GONZALES III VS OFFICE OF THE PRESIDENT
Congress; power to determine modes of removal from
office of public officers; must be consistent with the core
constitutional principle of independence of the Office of the
Ombudsman. The intent of the framers of the Constitution
in providing that ―all other public officers and employees
may be removed from office as provided by law, but not by
impeachment‖ in the second sentence of Section 2, Article
XI is to prevent Congress from extending the more
stringent rule of ―removal only by impeachment‖ to
favoured public officers. Contrary to the implied view of the
minority, in no way can this provision be regarded as
blanket authority for Congress to provide for any ground of
removal it deems fit. While the manner and cause of
removal are left to congressional determination, this must
still be consistent with constitutional guarantees and
principles, namely: the right to procedural and substantive
due process; the constitutional guarantee of security of
tenure; the principle of separation of powers; and the
principle of checks and balances. The authority granted by
the Constitution to Congress to provide for the manner and
cause of removal of all other public officers and employees
does not mean that Congress can ignore the basic
principles and precepts established by the Constitution.
Xxx
Our discussions, particularly the Court‘s expressed caution
against presidential interference with the constitutional
commissions, on one hand, and those expressed by the
framers of the 1987 Constitution, on the other, in
protecting the independence of the Constitutional
Commissions, speak for themselves as overwhelming
reasons to invalidate Section 8(2) of RA No. 6770 for
violating the independence of the Office of the
Ombudsman.
In more concrete terms, we rule that subjecting the Deputy
Ombudsman to discipline and removal by the President,
whose own alter egos and officials in the Executive
Department are subject to the Ombudsman‘s disciplinary
authority, cannot but seriously place at risk the
independence of the Office of the Ombudsman itself. The
Office of the Ombudsman, by express constitutional
mandate, includes its key officials, all of them tasked to
support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8(2) of RA No. 6770 exactly
did. By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the
Office of the Ombudsman, but inevitably with the principle
of checks and balances that the creation of an
Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her
complete trust in her subordinate officials who are not as
independent as she is, if only because they are subject to
pressures and controls external to her Office. This need
for complete trust is true in an ideal setting and truer still in
a young democracy like the Philippines where graft and
corruption is still a major problem for the government. For
these reasons, Section 8(2) of RA No. 6770 (providing that
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the President may remove a Deputy Ombudsman) should
be declared void.
The Executive power to remove and discipline key officials
of the Office of the Ombudsman, or to exercise any power
over them, would result in an absurd situation wherein the
Office of the Ombudsman is given the duty to adjudicate
on the integrity and competence of the very persons who
can remove or suspend its members. Equally relevant is
the impression that would be given to the public if the rule
were otherwise. A complainant with a grievance against a
high- ranking official of the Executive, who appears to
enjoy the President‘s favor, would be discouraged from
approaching the Ombudsman with his complaint; the
complainant‘s impression (even if misplaced), that the
Ombudsman would be susceptible to political pressure,
cannot be avoided. To be sure, such an impression would
erode the constitutional intent of creating an Office of the
Ombudsman as champion of the people against corruption
and bureaucracy.
xxx
In the voting held on January 28, 2014, by a vote of 8-
7,108 the Court resolved to reverse its September 4, 2012
Decision insofar as petitioner Gonzales is concerned (G.R.
No. 196231). We declared Section 8(2) of RA No. 6770
unconstitutional by granting disciplinary jurisdiction to the
President over a Deputy Ombudsman, in violation of the
independence of the Office of the Ombudsman.
However, by another vote of 8-7, the Court resolved to
maintain the validity of Section 8(2) of RA No. 6770 insofar
as Sulit is concerned. The Court did not consider the
Office of the Special Prosecutor to be constitutionally
within the Office of the Ombudsman and is, hence, not
entitled to the independence the latter enjoys under the
Constitution.
Limitations on the appointing power
Section 13. The President, Vice-President, the Members
of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any
other office or employment during their tenure. They shall
not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be
financially interested in any contract with, or in any
franchise, or special privilege granted by the Government
or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not,
during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their
subsidiaries.
xxx
Section 15. Two months immediately before the next
presidential elections and up to the end of his term, a
President or Acting President shall not make
appointments, except temporary appointments to
executive positions when continued vacancies therein will
prejudice public service or endanger public safety.
Your section 13 provides for what we discussed earlier, as
well as the prohibition of the President to appoint the
spouse and relatives by consanguinity or affinity within the
64 CONSTITUTIONAL LAW I REVIEW TSN
fourth civil degree to the Constitutional Commission or the
Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or
offices, including government-owned or controlled
corporations and their subsidiaries.
Section 15 is your so called Midnight Appointments
Ban. When you say midnight apppointments, they
technically refer to the period 2 months before the election
of the President, and up to the end of the term. It is not the
2 months every election, but only when there is the
changing of the cards so to speak, in the presidency. This
is to avoid the outgoing President from appointing people
in the government, to ―make them politically indebted to
the President.‖
A good example, which you probably would remember, is
PNoy appointing the youngest Chief Justice of the
Supreme Court, believing pretty well that if and when there
will be a case filed against him in any court after his
presidency, he will eventually end up being protected in
the Supreme Court. That was the talk oustside of the legal
confines of appointments. For why would he appoint
somebody as Chief Justice who is not ―indebted‖ to him.
You know how Filipinos are, we are always indebted one
way or the other for those who have appointed us. So it is
time to collect the indebtedness if and when his case lands
in the Supreme Court.
If you were to relate that to the appointment of the
Ombudsman, so he has been indicted by the Ombudsman
for, what was the charge recently of PNoy? I don‘t know..
but he was charged. But the discussion of the legal
community is that it is a very weak case which will
eventually be dismissed. At least there is either a ―res
judicata‖, as the case may be or there is considered to be
first jeopardy over such misdeed for which he will never be
charged again.
Now to avoid that, there is a prohibition on appointments,
when the President is outgoing. One of the oldest cases
here, if you remember, is the case of AYTONA V.
CASTILLO, where the question of appointments of the
outgoing President was raised. There the Supreme Court
said, that the appointments of an outgoing President is not
necessarily valid but not necessarily invalid and the
Supreme Court made a statement that there must be care
in determining on the propriety of the appointment before it
could be declared as invalid or not. Because not all
appointments are valid or invalid, as the case may be,
simply because the President is outgoing.
AYTONA VS CASTILLO
Whether or not the 350 midnight appointments of former
President Garcia were valid.
SC: No. After the proclamation of the election of President
Macapagal, previous President Garcia administration was
no more than a care-taker administration. He was duty
bound to prepare for the orderly transfer of authority the
incoming President, and he should not do acts which he
ought to know, would embarrass or obstruct the policies of
his successor.
It was not for him to use powers as incumbent President
to continue the political warfare that had ended or to avail
himself of presidential prerogatives to serve partisan
purposes. The filling up vacancies in important positions, if
few, and so spaced to afford some assurance of deliberate
action and careful consideration of the need for the
appointment and the appointee's qualifications may
undoubtedly be permitted. But the issuance of 350
appointments in one night and planned induction of almost
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all of them a few hours before the inauguration of the new
President may, with some reason, be regarded by the
latter as an abuse Presidential prerogatives, the steps
taken being apparently a mere partisan effort to fill all
vacant positions irrespective of fitness and other
conditions, and thereby deprive the new administration of
an opportunity to make the corresponding appointments.
Thus in the present Constitution, there is a limitation or an
allowance. It can be had for temporary positions in the
executive branch if the vacancy would prejudice public
service or endanger public safety. So in those exceptional
circumstances, the appointments would be valid. All the
rest would be invalid.
In the old case of IN RE: VALENZUELA, the Supreme
Court and the judiciary have been included, but in the case
of DE CASTRO VS JBC, which is a relatively newer case,
it is a 2010 decision, the Supreme Court said that the
appointments in the judiciary are not included in the
midnight appointments prohibition or ban.
In the Valenzuela case, the Supreme Court said that the
appointments to the judiciary, because this was a lower
court vacancy, the Supreme Court said that it applies
because there is a possibility that the appointee will decide
on an election case as against the President of the
outgoing President or any of the party being supported by
the outgoing President.
And so the fear of being a political death/threat(??) so to
speak, is real.
But in De Castro, the Supreme Court noted that the
provision in the Constitution, to fill up the vacancy in the
Supreme Court within 90 days from the occurrence of the
vacancy is supposed to be mandatory because of the use
of the word ―shall‖ and therefore, if the vacancy occurs
within the mandated period covered by the midnight
appointments ban, is the period more than 90 days?
- 2 months before the regular election up to the end of
the term.
Is that more than 90 days?
- Yes it is. Election is Second Monday of May. What is
2 months before Second Monday of May? Second
Monday of March. And end of the term is noon of
June 30. So that is more than 90 days.
So if the vacancy occurs within that period, the vacancy
MUST be filled up. That is in the Supreme Court.
What about in the lower courts? Seemingly, the need to
immediately fill up the vacancy is not real because the 90-
day period is counted when? Upon the submission of the
list of nominees to the President for his consideration. And
so, while it may not be applicable strictly to the lower court,
the Supreme Court nevertheless said, the appointments to
the judiciary are excluded from the Midnight
Appointments Ban.
IN RE APPOINTMENTS DATED MARCH 30, 1998 OF
HON. MATEO A. VALENZUELA AND HON. PLACIDO B.
VALLARTA
A.M. NO. 98-5-01-SC
Now, it appears that Section 15, Article VII is directed
against two types of appointments:
(1) those made for buying votes and
(2) those made for partisan considerations. The first refers
to those appointments made within the two months
preceding a Presidential election and are similar to those
which are declared election offenses in the Omnibus
Election Code. xxx
CONSTITUTIONAL LAW I REVIEW TSN 65
The second type of appointments prohibited by Section
15, Article VII consists of the so-called "midnight"
appointments. In Aytona v. Castillo,[9] it was held that after
the proclamation of Diosdado Macapagal as duly elected
President, President Carlos P. Garcia, who was defeated
in his bid for reelection, became no more than a
"caretaker" administrator whose duty was to "prepare for
the orderly transfer of authority to the incoming President."
xxx
As indicated, the Court recognized that there may well be
appointments to important positions which have to be
made even after the proclamation of the new President.
Such appointments, so long as they are "few and so
spaced as to afford some assurance of deliberate action
and careful consideration of the need for the appointment
and the appointee's qualifications," can be made by the
outgoing President. Accordingly, several appointments
made by President Garcia, which were shown to have
been well considered, were upheld.
Section 15, Article VII has a broader scope than the
Aytona ruling. It may not unreasonably be deemed to
contemplate not only "midnight" appointments - those
made obviously for partisan reasons as shown by their
number and the time of their making - but also
appointments presumed made for the purpose of
influencing the outcome of the Presidential election.
On the other hand, the exception in the same Section 15
of Article VII - allowing appointments to be made during
the period of the ban therein provided - is much narrower
than that recognized in Aytona.The exception allows only
the making of temporary appointments to executive
positions when continued vacancies will prejudice public
service or endanger public safety. Obviously, the article
greatly restricts the appointing power of the President
during the period of the ban.
Considering the respective reasons for the time frames for
filling vacancies in the courts and the restriction on the
President's power of appointment, it is this Court's view
that, as a general proposition, in case of conflict, the
former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for
avoiding delays in filling up of court vacancies or the
disposition of some cases. Temporary vacancies can
abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every six
years. Moreover, those occurring in the lower courts can
be filled temporarily by designation. But prohibited
appointments are long-lasting and permanent in their
effects. They may, as earlier pointed out, in fact influence
the results of elections and, for that reason, their making is
considered an election offense.
To the contention that may perhaps be asserted, that
Sections 4 (1) and 9 of Article VIII should prevail over
Section 15 of Article VII, because they may be considered
later expressions of the people when they adopted the
Constitution, it suffices to point out that the Constitution
must be construed in its entirety as one, single,
instrument.
To be sure, instances may be conceived of the imperative
need for an appointment, during the period of the ban, not
only in the executive but also in the Supreme Court. This
may be the case should the membership of the court be so
reduced that it will have no quorum or should the voting on
a particularly important question requiring expeditious
resolution be evenly divided. Such a case, however, is
covered by neither Section 15 of Article VII nor Section 4
(1) and 9 of Article VIII.
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DE CASTRO VS JBC
Prohibition under Section 15, Article VII does not apply to
appointments to fill a vacancy in the Supreme Court or to
other appointments to the Judiciary.
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department),
provides: Section 15. Two months immediately before the
next presidential elections and up to the end of his term, a
President or Acting President shall not make
appointments, except temporary appointments to
executive positions when continued vacancies therein will
prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department),
states: Section 4. (1). The Supreme Court shall be
composed of a Chief Justice and fourteen Associate
Justices. It may sit en banc or in its discretion, in division
of three, five, or seven Members. Any vacancy shall be
filled within ninety days from the occurrence thereof.
Had the framers intended to extend the prohibition
contained in Section 15, Article VII to the appointment of
Members of the Supreme Court, they could have explicitly
done so. They could not have ignored the meticulous
ordering of the provisions. They would have easily and
surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment
of Members of the Supreme Court in Article VIII itself,
most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition
against the President or Acting President making
appointments within two months before the next
presidential elections and up to the end of the President‘s
or Acting President‘s term does not refer to the Members
of the Supreme Court.
Section 14, Section 15, and Section 16 are obviously of
the same character, in that they affect the power of the
President to appoint. The fact that Section 14 and Section
16 refer only to appointments within the Executive
Department renders conclusive that Section 15 also
applies only to the Executive Department. This conclusion
is consistent with the rule that every part of the statute
must be interpreted with reference to the context, i.e. that
every part must be considered together with the other
parts, and kept subservient to the general intent of the
whole enactment. It is absurd to assume that the framers
deliberately situated Section 15 between Section 14 and
Section 16, if they intended Section 15 to cover all kinds of
presidential appointments. If that was their intention in
respect of appointments to the Judiciary, the framers, if
only to be clear, would have easily and surely inserted a
similar prohibition in Article VIII, most likely within Section
4 (1) thereof.
Interim or Recess Appointments
(Article 6, Section 19 and Article 7, Section 16 par. 2)
Art. VI, Sec. 19
The Electoral Tribunals and the Commission on
Appointments shall be constituted within thirty days after
the Senate and the House of Representatives shall have
been organized with the election of the President and the
Speaker. The Commission on Appointments shall meet
only while the Congress is in session, at the call of its
Chairman or a majority of all its Members, to discharge
such powers and functions as are herein conferred upon it.
Art. VII, Sec. 16(2)
66 CONSTITUTIONAL LAW I REVIEW TSN
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproved by the Commission on Appointments or
until the next adjournment of the Congress.
We have discussed that already in relation to our
discussion on the Commission on Appointments.
Temporary Designations
(Administrative Code, Book III, Section 17)
Power to Issue Temporary Designation. –
(1) The President may temporarily designate an officer
already in the government service or any other competent
person to perform the functions of an office in the
executive branch, appointment to which is vested in him
by law, when: (a) the officer regularly appointed to the
office is unable to perform his duties by reason of illness,
absence or any other cause; or (b) there exists a vacancy;
(2) The person designated shall receive the compensation
attached to the position, unless he is already in the
government service in which case he shall receive only
such additional compensation as, with his existing salary,
shall not exceed the salary authorized by law for the
position filled. The compensation hereby authorized shall
be paid out of the funds appropriated for the office or
agency concerned.
(3) In no case shall a temporary designation exceed one
(1) year.
Then you have Temporary Designations. Your temporary
designations is based on your Administrative Code, EO
292. Those are the parameters where the President can
name or extend temporary designations.
5. Executive clemencies
Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the President may
grant reprieves, commutations, and pardons, and remit
fines and forfeitures, after conviction by final
judgment.cralaw
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress.cralaw
Then you have your Executive Clemencies. The pardoning
powers of the President is basically executive,
discretionary, final and unappealable except for so-
called grant of amnesty which is shared by the President
with Congress. The grant of the other executive
clemencies are considered to be private acts of the
President.
Though official, they are not acts of the State, which are
considered to be acts of the sovereign, which must be
shared by the Congress in the case of amnesty.
And it is discretionary because for so long as there is no
constitutional provision violated, and all the constitutional
requirements are complied with, the President can extend
an executive clemency to any person.
So the Constitution only requires that the judgment of
conviction must have to be final. It is final when there is no
appeal, if the accused has started to serve sentence,
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when the accused has applied for probation, or when there
is an express waiver of the right to appeal.
And for so long, again, as there is no constitutional
provision violated like the requirement(?) of favorable
recommendation of the Comelec, or for convictions
involving Election laws, then anybody could be subject or
be granted an executive clemency.
The only question that may be considered to be subject to
review is when, again, there is a violation of the
constitutional pre-conditions or a constitutional
requirement.
Your case of RISOS-VIDAL VS COMELEC is your
Estrada Pardon. If you remember in this case, the
petitioner questioned the qualification if not eligibility of
former President Estrada to seek an elective office on the
question that his grant of pardon by PGMA was
considered to be conditional because one of the whereas
clauses in the executive clemency, mentions that Estrada
will no longer seek a public office. After the third whereas
clause, the main paragraph of the grant of pardon, where
the Supreme Court said that it is ACTUALLY the grant of
pardon, does not provide for any condition, because it
simply grants him the pardon and has restored him to all
his political and civil rights. And therefore the Supreme
Court said, the pardon is not conditional and the whereas
clauses are not part of the pardon. It is the main body of
the pardon which is the phrase of the pardon which must
be the basis for determining whether or not the pardon
was conditional. And finding none, or there being no
conditions attached, the Supreme Court said the pardon is
absolute and not conditional.
RISOS-VIDAL VS COMELEC
Estrada was granted an absolute pardon that fully restored
all his civil and political rights, which naturally includes the
right to seek public elective office, the focal point of this
controversy. The wording of the pardon extended to
former President Estrada is complete, unambiguous, and
unqualified. It is likewise unfettered by Articles 36 and 41
of the Revised Penal Code. The only reasonable,
objective, and constitutional interpretation of the language
of the pardon is that the same in fact conforms to Articles
36 and 41 of the Revised Penal Code.
It is insisted that, since a textual examination of the pardon
given to and accepted by former President Estrada does
not actually specify which political right is restored, it could
be inferred that former President Arroyo did not
deliberately intend to restore former President Estrada‘s
rights of suffrage and to hold public office, orto otherwise
remit the penalty of perpetual absolute disqualification.
Even if her intention was the contrary, the same cannot be
upheld based on the pardon‘s text.
The pardoning power of the President cannot be limited by
legislative action.
The 1987 Constitution, specifically Section 19 of Article VII
and Section 5 of Article IX-C, provides that the President
of the Philippines possesses the power to grant pardons,
along with other acts of executive clemency.
xxx
It is apparent from the foregoing constitutional provisions
that the only instances in which the President may not
extend pardon remain to be in: (1) impeachment cases; (2)
cases that have not yet resulted in a final conviction; and
(3) cases involving violations of election laws, rules and
regulations in which there was no favorable
recommendation coming from the COMELEC. Therefore,
it can be argued that any act of Congress by way of
statute cannot operate to delimit the pardoning power of
CONSTITUTIONAL LAW I REVIEW TSN 67
the President.
The proper interpretation of Articles 36 and 41 of the
Revised Penal Code.
A close scrutiny of the text of the pardon extended to
former President Estrada shows that both the principal
penalty of reclusion perpetua and its accessory penalties
are included in the pardon. The sentence which states that
―(h)e is hereby restored to his civil and political rights,‖
expressly remitted the accessory penalties that attached to
the principal penalty of reclusion perpetua. Hence, even if
we apply Articles 36 and 41 of the Revised Penal Code, it
is indubitable from the text of the pardon that the
accessory penalties of civil interdiction and perpetual
absolute disqualification were expressly remitted together
with the principal penalty of reclusion perpetua.
The disqualification of former President Estrada under
Section 40 of the LGC in relation to Section 12 of the OEC
was removed by his acceptance of the absolute pardon
granted to him
While it may be apparent that the proscription in Section
40(a) of the LGC is worded in absolute terms, Section 12
of the OEC provides a legal escape from the prohibition –
a plenary pardon or amnesty. In other words, the latter
provision allows any person who has been granted plenary
pardon or amnesty after conviction by final judgment of an
offense involving moral turpitude, inter alia, to run for and
hold any public office, whether local or national position.
The third preambular clause of the pardon did not operate
to make the pardon conditional.
Contrary to Risos-Vidal‘s declaration, the third preambular
clause of the pardon, i.e., "[w]hereas, Joseph Ejercito
Estrada has publicly committed to no longer seek any
elective position or office," neither makes the pardon
conditional, nor militate against the conclusion that former
President Estrada‘s rights to suffrage and to seek public
elective office have been restored.
This is especially true as the pardon itself does not
explicitly impose a condition or limitation, considering the
unqualified use of the term "civil and political rights"as
being restored. Jurisprudence educates that a preamble is
not an essential part of an act as it is an introductory or
preparatory clause that explains the reasons for the
enactment, usually introduced by the word "whereas."
Whereas clauses do not form part of a statute because,
strictly speaking, they are not part of the operative
language of the statute. In this case, the whereas clause
at issue is not an integral part of the decree of the pardon,
and therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent
upon the fulfilment of the aforementioned commitment nor
to limit the scope of the pardon.
Besides, a preamble is really not an integral part of a law.
It is merely an introduction to show its intent or purposes.
It cannot be the origin of rights and obligations. Where the
meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation
much less prevail over its text.
If former President Arroyo intended for the pardon to be
conditional on Respondent‘s promise never to seek a
public office again, the former ought to have explicitly
stated the same in the text of the pardon itself. Since
former President Arroyo did not make this an integral part
of the decree of pardon, the Commission is constrained to
rule that the 3rd preambular clause cannot be interpreted
as a condition to the pardon extended to former President
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Estrada.
A good read would be your case of PP VS SALLE JR.
This is a 1995 ruling in which it would tell you how the
pardoning powers came into the Philippines, by your
President with respect to the requirement of a final
judgment. This is traced at the onset, before the
Constitution, we follow the American tradition, that once
the act has been committed, even if there has been no
indictment yet, an accused can be pardoned already. That
is of American tradition.
But our Constitution has changed it to require a conviction
initially. So even if there is no final judgment for as long as
there is a conviction, pardon may be granted; pardon
cannot be granted before a conviction.
Then the next Constitution required a final judgment; and
the ‗81 amendment referred us back to the old tradition
that there is no conviction required, only commission. And
thereafter the 1987 [Constitution] declared that there must
have to be a judgment by final conviction before any
executive clemency may be granted.
PEOPLE VS SALLE
This calls for a review of the Philippine laws on
presidential pardons. We shall start with the Jones Law.9
Section 21 thereof provided in part as follows:
Sec. 21. That the supreme executive power shall be
vested in an executive officer, whose official title shall be
"The Governor-General of the Philippine Islands.". . . He is
hereby vested with the exclusive power to grant pardons
and reprieves and remit fines and forfeitures. . . .
Then came the 1935 Constitution. Paragraph 6, Section
10, Article VII thereof provided as follows:
(6) The President shall have the power to grant reprieves,
commutations, and pardons, and remit fines and
forfeitures, after conviction, for all offenses, except in
cases of impeachment, upon such conditions and with
such restrictions and limitations as he may deem proper to
impose. He shall have the power to grant amnesty with the
concurrence of the Congress.
This provision differed from that of the Jones Law in some
respects. Thus, in People vs. Vera, 10 this Court held:
Under the Jones Law, as at common law, pardon could be
granted any time after the commission of the offense,
either before or after conviction (Vide Constitution of the
United States, Art. II, sec. 2; In reLontok [1922], 43 Phil.
293). The Governor-General of the Philippines was thus
empowered, like the President of the United States, to
pardon a person before the facts of the case were fully
brought to light. The framers of our Constitution thought
this undesirable and, following most of the state
constitutions, provided that the pardoning power can only
be exercised "after conviction".
The requirement of after conviction operated as one of the
limitations on the pardoning power of the President. Thus:
It should be observed that there are two limitations upon
the exercise of this constitutional prerogative by the Chief
Executive, namely: (a) that the power be exercised after
conviction; and (b) that such power does not extend to
cases of impeachment.
The 1973 Constitution went further by providing that
pardon could be granted only after final conviction. Section
14 of Article IX thereof reads as follows:
The Prime Minister may, except in cases of impeachment,
68 CONSTITUTIONAL LAW I REVIEW TSN
grant reprieves, commutations, and pardons, remit fines
and forfeitures, after final conviction, and, with the
concurrence of the National Assembly, grant amnesty.
The 1981 amendments to the 1973 Constitution, however,
removed the limitation of final conviction, thereby bringing
us back to the aforementioned provision of the Jones Law.
Section 11, Article VII of the 1973 Constitution, as thus
amended, reads:
The President may, except in cases of impeachment,
grant reprieves, commutations and pardons, remit fines
and forfeitures and, with the concurrence of the Batasang
Pambansa, grant amnesty.
But the said limitation was restored by the present
Constitution. Section 19, Article VII thereof reads as
follows:
Except in cases of impeachment, or as otherwise provided
in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress. (emphasis supplied)
Where the pardoning power is subject to the limitation of
conviction, it may be exercised at any time after conviction
even if the judgment is on appeal. It is, of course, entirely
different where the requirement is " final conviction, " as
was mandated in the original provision of Section 14,
Article IX of the 1973 Constitution, or "conviction by final
judgment," as presently prescribed in Section 19, Article
VII of the 1987 Constitution. In such a case, no pardon
may be extended before a judgment of conviction
becomes final.
A judgment of conviction becomes final (a) when no
appeal is seasonably perfected, (b) when the accused
commences to serve the sentence, (c) when the right to
appeal is expressly waived in writing, except where the
death penalty was imposed by the trial court, and (d) when
the accused applies for probation, thereby waiving his right
to appeal. 12 Where the judgment of conviction is still
pending appeal and has not yet therefore attained finality,
as in the instant case, executive clemency may not yet be
granted to the appellant.
xxx
We now declare that the "conviction by final judgment"
limitation under Section 19, Article VII of the present
Constitution prohibits the grant of pardon, whether full or
conditional, to an accused during the pendency of his
appeal from his conviction by the trial court. Any
application therefor, if one is made, should not be acted
upon or the process toward its grant should not be begun
unless the appeal is withdrawn. Accordingly, the agencies
or instrumentalities of the Government concerned must
require proof from the accused that he has not appealed
from his conviction or that he has withdrawn his appeal.
Such proof may be in the form of a certification issued by
the trial court or the appellate court, as the case may be.
The acceptance of the pardon shall not operate as an
abandonment or waiver of the appeal, and the release of
an accused by virtue of a pardon, commutation of
sentence, or parole before the withdrawal of an appeal
shall render those responsible therefor administratively
liable. Accordingly, those in custody of the accused must
not solely rely on the pardon as a basis for the release of
the accused from confinement.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Effects of Pardon
There is not much to [remember], except to remember that
a pardon is one that is applied prospectively as compared
to an amnesty. An amnesty looks back, retroacts to the
time of commission. That if a person is covered by an
amnesty proclamation, it is as if he has not committed a
criminal act and therefore, at what stage of the
proceedings the accused or person may have been, if
covered by the amnesty proclamation, he is free from any
liability thereafter, whether he is not yet been arrested
provided he claims coverage of the amnesty proclamation.
Much more if he has not been charged, tried, convicted, or
serving sentence, they are covered by the amnesty
proclamation.
In pardon, the fact of commission is never obliterated; it
remains a fact. What is ―enjoyed‖ by the accused granted
absolute pardon would be the effects of conviction. It will
not make him not criminally liable at all, but only free from
the effects of a conviction. It looks forward and is applied
prospectively; it is not applied retroactively as compared to
an amnesty.
Is it applied in administrative cases? The answer is yes.
The old case of LLAMAS VS EXECUTIVE SECRETARY
CORPUS, but only in the Executive branch. If that is an
official charged and found liable administratively, outside
of the Executive branch or outside the disciplining powers
of the President, no pardon can be extended to that official
because it would only be extended by the President on
those over which he has the power to discipline.
LLAMAS VS. EXECUTIVE SECRETARY
Ubi lex non distinguit, nec nos distinguire debemos." If the
law does not distinguish, so We must not distinguish. The
Constitution does not distinguish between which cases
executive clemency may be exercised by the President,
with the sole exclusion of impeachment cases. By the
same token, if executive clemency may be exercised only
in criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases from the
coverage of Article VII, Section 19 of the Constitution.
Following petitioner's proposed interpretation, cases of
impeachment are automatically excluded inasmuch as the
same do not necessarily involve criminal offenses. In the
same vein, We do not clearly see any valid and convincing
reason why the President cannot grant executive
clemency in administrative cases. It is Our considered
view that if the President can grant reprieves,
commutations and pardons, and remit fines and forfeitures
in criminal cases, with much more reason can she grant
executive clemency in administrative cases, which are
clearly less serious than criminal offenses.
If those already adjudged guilty criminally in court may be
pardoned, those adjudged guilty administratively should
likewise be extended the same benefit. In criminal cases,
the quantum of evidence required to convict an individual
is proof beyond reasonable doubt, but the Constitution
grants to the President the power to pardon the act done
by the proved criminal and in the process exempts him
from punishment therefor. On the other hand, in
administrative cases, the quantum of evidence required is
mere substantial evidence to support a decision, not to
mention that as to the admissibility of evidence,
administrative bodies are not bound by the technical and
rigid rules of admissibility prescribed in criminal cases. It
will therefore be unjust and unfair for those found guilty
administratively of some charge if the same effects of
pardon or executive clemency cannot be extended to
them, even in the sense of modifying a decision to
subserve the interest of the public.
CONSTITUTIONAL LAW I REVIEW TSN 69
Moreover, the President, in the exercise of her power of
supervision and control over all executive departments,
may substitute her decision for that of her subordinate,
most especially where the basis therefor would be to serve
the greater public interest. It is clearly within the power of
the President not only to grant "executive clemency" but
also to reverse or modify a ruling issued by a subordinate
against an erring public official, where a reconsideration of
the facts alleged would support the same. It is in this
sense that the alleged executive clemency was granted,
after adducing reasons that subserve the public interest.
— "the relative success of . . . livelihood loan program.
However, that when we say the President can grant
executive clemency in administrative cases, we refer only
to all administrative cases in the Executive branch, not in
the Judicial or Legislative branches of the government.
6. Powers of the Commander-in Chief
August 15, 2017 C. Bonifacio
Prior to the Lagman vs. Executive Secretary case, your
Fortun vs. Macapagal-Arroyo was the first ruling on Martial
Law. This was the martial law declaration in Maguindanao.
The Supreme Court made mention that the task to review
the sufficiency of the factual basis in the declaration of
martial law will only come if Congress defaults in its power
to revoke the declaration of the President once the
President makes a report. It even mentioned that the
power to declare martial law is shared between the
President and Congress. The Lagman ruling abandoned
that portion of the decision in Fortun, when the SC said
that the power of the SC to review is independent from
that of Congress.
FORTUN VS. MACAPAGAL -ARROYO
This is the only case filed to question the declaration of the
president of martial law in the province of Maguindanao
brought about the so called Ampatuan Massacre. This
petition was dismissed since the issue has become moot
and academic. But nonetheless, the SC made
pronouncements as to the nature of the power of the
president to declare martial law or suspend the privilege of
the writ of habeas corpus.
The power of the president to declare martial law or
suspend the privilege of the writ is not a sole power of the
president. It said that this is a shared power of the
congress.
When the president declares martial law or suspend the
privilege of the writ, the president will submit within 48
hours a report to congress in person or through his
representative. Congress on the other hand according to
the constitution must have to convene in session within 24
hours. These two provisions would tell us that this is not
the sole power of the president. This is a shared power.
Congress has the first opportunity at validating or revoking
such declaration or suspension.
The SC said that initially the declaration of martial law or
suspension of the writ is a POLITICAL QUESTION. Only
when there is a question on the sufficiency of the factual
basis that is filed before the SC that it becomes a
JUSTICIABLE QUESTION
The nature of a petition under Article VII Section 18 on the
third paragraph, according to the Supreme Court in
Lagman is sui generis. It is not a petition under Rule 65
because what is to be reviewed by the SC is not grave
abuse of discretion, rather it is sufficiency of the factual
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
basis in the declaration of martial law or suspension of the
privilege of the writ of habeas corpus. We all understand
that a Rule 65 petition is based on grave abuse of
discretion. Section 18 also is not an arrangement of the
sequence of power that the President can exercise. It is
just an enumeration of the graduated powers that the
president can exercise based on gravity or greatness of
the effect. The first there is your calling out powers. The
President may call out the armed forces in cases of
lawless violence, invasion or rebellion. Then there‘s a
listing of the declaration of martial law or the suspension of
the privilege of the writ of habeas corpus.
The discretion of which power to exercise is with the
President because he is supposed to be armed with the
necessary information as to the gravity of the state which
should be addressed by any of the powers under Section
18.
Art VII Section 18. The President shall be the
Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof
under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon
the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for
a period to be determined by the Congress, if the invasion
or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty- four
hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas
corpus or the extension thereof, and must promulgate
its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of
the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies
over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ of habeas
corpus.
The suspension of the privilege of the writ of habeas
corpus shall apply only to persons judicially charged for
rebellion or offenses inherent in, or directly connected
with, invasion.
During the suspension of the privilege of the writ of habeas
corpus, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be
released.
The test of sufficiency according to the Supreme Court,
has practically abandoned the requirement in Lansang vs
Garcia. While the substantial portion in the ruling of
Lansang, is that a declaration of martial law and the
70 CONSTITUTIONAL LAW I REVIEW TSN
suspension of the privilege of the writ of habeas corpus is
a justiciable question. The test of arbitrariness in Lansang
has been abandoned. Meaning what is now reviewed by
the court is the sufficiency of the factual basis and while
Congress when it receives the report of the president and
exercises the power to revoke or nullify the declaration of
suspension, the SC is bound by the facts before and up to
the time of such declaration. Unlike, Congress they can
consider facts subsequent to the declaration or
suspension in reviewing whether they would nullify or
revoke the declaration or suspension made by the
president.
The court will only determine whether at the time the
declaration is made or the suspension of the writ is so
declared. that there were sufficient factual basis.
Since it no longer involves the question of arbitrariness, it
only would relate to sufficiency of the facts. When it is
required that there are sufficient facts, it is not the
accuracy of the facts. In totality, the SC should consider
whether there are facts sufficient not whether the facts are
accurate as will seek the president to make him declare
martial law or suspend the writ of habeas corpus. Since to
require accuracy will defeat the purpose of granting the
president discretion to immediately decide to address the
state of emergency.
Rebellion as required in the declaration of martial law or
the suspension of the privilege of the writ is the same
rebellion under Article 134 of our RPC. There is no other
definition of rebellion. However, when the president so
declares or suspends the privilege, proof beyond
reasonable doubt or preponderance of evidence is not
required, only probable cause that rebellion or any of
the crimes inherent in invasion have been committed
or are being committed.
As to the scope of the covered area, if you remember
there are three justices who dissented (referring to
Lagman case) arguing that it should be limited in Marawi
and nearby places because actual public uprising is
required. The majority said that rebellion subsumes
common offenses and therefore it is not required that
martial law be contained only in the area where actual
public uprising is happening. Because while actual public
uprising is happening in that particular area, crimes
committed in relation to rebellion may have been
committed or are being committed in other territories other
than where the actual uprising is happening. That justified
the declaration of martial law in the entire island of
Mindanao. That is your commander of chief powers.
7. Emergency Powers
As you understand it is delegated authority. We have
discussed this in relation to allowable delegation to the
president. We have two, under Section 23 and under
section 26 on tariff.
Article VI. Section 23. (1) The Congress, by a vote of
two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the
existence of a state of war.cralaw
(2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers
shall cease upon the next adjournment thereof.
Article VI. Section 26. (1) Every bill passed by the
Congress shall embrace only one subject which shall be
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
expressed in the title thereof.cralaw
(2) No bill passed by either House shall become a law
unless it has passed three readings on separate days, and
printed copies thereof in its final form have been
distributed to its Members three days before its passage,
except when the President certifies to the necessity of its
immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment
thereto shall be allowed, and the vote thereon shall be
taken immediately thereafter, and the yeas and nays
entered in the Journal.
8. Contracting and guaranteeing foreign loans
Art VII Section 20. The records and books of accounts of
the Congress shall be preserved and be open to the public
in accordance with law, and such books shall be audited
by the Commission on Audit which shall publish annually
an itemized list of amounts paid to and expenses for each
Member.
Art XII Section 21. Foreign loans may only be incurred in
accordance with law and the regulation of the monetary
authority. Information on foreign loans obtained or
guaranteed by the Government shall be made available to
the public.
9. Power over foreign affairs
We have a new case there. The case of Rosas vs.
Montor. The SC simply distinguish as what exclusion and
deportation is. When a foreigner arrives in the Philippines
under primary or secondary check in our immigration unit.
If a person who is a foreigner is found to have violated
any Philippine law, he may be refused entry and
directed to depart, so that is exclusion. Deportation on
the other hand is the power of the president over
foreign affairs. It is an official act of the sovereign to
exclude foreigners who were previously admitted in
the country but whose presence have already been
declared undesirable for the interest of the state and
for that reason they must be deported or excluded
from the country.
10. Power over legislation
Message to Congress:
Art VII Section 23. The President shall address the
Congress at the opening of its regular session. He may
also appear before it at any other time.
Preparation and submission of the budget
Art VII Section 22. The President shall submit to the
Congress, within thirty days from the opening of every
regular session as the basis of the general appropriations
bill, a budget of expenditures and sources of financing,
including receipts from existing and proposed revenue
measures.
Veto Power
Art VI Section 27. The President shall have the power to
veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item
or items to which he does not object.
Emergency Powers
Art Vi Section 23(2). In times of war or other national
CONSTITUTIONAL LAW I REVIEW TSN 71
emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next
adjournment thereof.
Fixing of tariff rates
Art VI Section 28 (2). The Congress may, by law,
authorize the President to fix within specified limits, and
subject to such limitations and restrictions as it may
impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the
framework of the national development program of the
Government.
11. Immunity from suits
The president is immune while sitting, as president
regardless whether the cause of action against him existed
even before he became the president. He is immune from
any and all kinds of cases during his incumbency. That
immediately extends after his incumbency for all effects of
official acts during his incumbency. The reason being is
that the president must not be burdened with a possible
suit after if it were to be the result of legal or official acts.
Remember the 2012 case of Saez vs Macapagal-Arroyo,
This involves a petition for writ of Amparo. In Saez, the SC
clarified that under the concept of command responsibility
in the military. The president is not immune as a
respondent in the petition for writ of Amparo. Because a
petition for writ of Amparo is not a case which would
establish any liability or obligation in a civil, criminal or
administrative case rather it establishes accountability or
responsibility with respect to the whereabouts of the
person. If there is an allegation by reason of constructive
knowledge, to the sitting president has authorized the
action or omissions of the military. The president being the
commander in chief, the sitting president can be made a
respondent in a petition for writ of Amparo. There is no
basis to dismiss the petition against a sitting president
because it establishes no liability but only accountability.
12. The Vice-President
Qualifications, election, term and oath
Art VII Section 3. There shall be a Vice-President who
shall have the same qualifications and term of office and
be elected with, and in the same manner, as the
President. He may be removed from office in the same
manner as the President.
The Vice-President may be appointed as a Member of the
Cabinet. Such appointment requires no confirmation.
Section 4. The President and the Vice-President shall be
elected by direct vote of the people for a term of six years
which shall begin at noon on the thirtieth day of June next
following the day of the election and shall end at noon of
the same date, six years thereafter. The President shall
not be eligible for any re-election. No person who has
succeeded as President and has served as such for more
than four years shall be qualified for election to the same
office at any time.
No Vice-President shall serve for more than two
successive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
interruption in the continuity of the service for the full term
for which he was elected.
Unless otherwise provided by law, the regular election for
President and Vice-President shall be held on the second
Monday of May.
The returns of every election for President and Vice-
President, duly certified by the board of canvassers of
each province or city, shall be transmitted to the Congress,
directed to the President of the Senate. Upon receipt of
the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election,
open all the certificates in the presence of the Senate and
the House of Representatives in joint public session, and
the Congress, upon determination of the authenticity and
due execution thereof in the manner provided by law,
canvass the votes.
The person having the highest number of votes shall be
proclaimed elected, but in case two or more shall have an
equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the
Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing
of the certificates.
The Supreme Court, sitting en banc, shall be the sole
judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may
promulgate its rules for the purpose.
Section 5. Before they enter on the execution of their
office, the President, the Vice-President, or the Acting
President shall take the following oath or affirmation:
"I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice-
President or Acting President) of the Philippines, preserve
and defend its Constitution, execute its laws, do justice to
every man, and consecrate myself to the service of the
Nation. So help me God." (In case of affirmation, last
sentence will be omitted.)
Privilege and salary
Art VII Section 6. The President shall have an official
residence. The salaries of the President and Vice-
President shall be determined by law and shall not be
decreased during their tenure. No increase in said
compensation shall take effect until after the expiration of
the term of the incumbent during which such increase was
approved. They shall not receive during their tenure any
other emolument from the Government or any other
source.
Prohibitions
Art VII Section 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business,
or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government
or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
72 CONSTITUTIONAL LAW I REVIEW TSN
The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not,
during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their
subsidiaries.
Succession
Art VII Section 9. Whenever there is a vacancy in the
Office of the Vice-President during the term for which he
was elected, the President shall nominate a Vice-
President from among the Members of the Senate and the
House of Representatives who shall assume office upon
confirmation by a majority vote of all the Members of both
Houses of the Congress, voting separately.
Removal
Art XI Section 2. The President, the Vice-President, the
Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be
removed from office on impeachment for, and conviction
of, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may
be removed from office as provided by law, but not by
impeachment.
Functions
Art VII Section 8. In case of death, permanent disability,
removal from office, or resignation of the President, the
Vice-President shall become the President to serve the
unexpired term. In case of death, permanent disability,
removal from office, or resignation of both the President
and Vice-President, the President of the Senate or, in case
of his inability, the Speaker of the House of
Representatives, shall then act as President until the
President or Vice-President shall have been elected and
qualified.
The Congress shall, by law, provide who shall serve as
President in case of death, permanent disability, or
resignation of the Acting President. He shall serve until the
President or the Vice-President shall have been elected
and qualified, and be subject to the same restrictions of
powers and disqualifications as the Acting President.
C. JUDICIAL DEPARTMENT
1. The Supreme Court
Composition
Art. VIII. Section 4.
1. The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en banc
or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days
from the occurrence thereof.
2. All cases involving the constitutionality of a treaty,
international or executive agreement, or law, which shall
be heard by the Supreme Court en banc, and all other
cases which under the Rules of Court are required to be
heard en banc, including those involving the
constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances,
and other regulations, shall be decided with the
concurrence of a majority of the Members who actually
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took part in the deliberations on the issues in the case and
voted thereon.
3. Cases or matters heard by a division shall be decided or
resolved with the concurrence of a majority of the
Members who actually took part in the deliberations on the
issues in the case and voted thereon, and in no case
without the concurrence of at least three of such Members.
When the required number is not obtained, the case shall
be decided en banc: Provided, that no doctrine or principle
of law laid down by the court in a decision rendered en
banc or in division may be modifiedor reversed except by
the court sitting en banc.
Remember your SC Circular No. 2-89 that establishes the
relationship with the court division with the court en banc.
That is still resolution or good law. The rule is that the
court en banc is not an appeal or review court of the court
division. A division ruling is considered that of the entire
court. It does not diminish simply because a division
decided on the case. Although we know that a division
ruling can subsequently be abandoned in another case,
and this time only a court en banc can overturn what a
division has ruled before in a prior case.
However, in 2-89, allows the court en banc to accept a
case from a division provided that:
(a) the division has not yet decided or ruled on
the case before it
(b) a majority of the members of the division has
referred the case to the court en banc
(c) the court en banc in majority has accepted
the referral from the division
Only when these three conditions are satisfied that a case
may be referred from a division to a court en banc.
The decision of the court en banc to accept or not to
accept the referral is final and appealable.
SC CIRCULAR NO. 2-89 February 7, 1989
1. The Supreme Court sits either en banc or in Divisions of
three, five or seven Members (Sec. 4[1], Article VIII, 1987
Constitution). At present the Court has three Divisions of
five Members each.
2. A decision or resolution of a Division of the Court, when
concurred in by a majority of its Members who actually
took part in the deliberations on the issues in a case and
voted thereon, and in no case without the concurrence of
at least three of such Members, is a decision or resolution
of the Supreme Court (Section 4[3]. Article VIII, 1987
Constitution).
3. The Court en banc is not an Appellate Court to which
decisions or resolutions of a Division may be appealed.
4. At any time after a Division takes cognizance of a case
and before a judgment or resolutions of a Division may
refer the case en consultato the Court en banc which, after
consideration of the reasons of the Division for such
referral may return the case to the Division or accept the
case for decision or resolution.
4a. Paragraph [f] of the Resolution of this Court of 23
February 1984 in Bar Matter No. 205 [formerly item 6, en
banc Resolution dated 29 September 1977], enumerating
the cases considered as en banc cases, states:
f. Cases assigned to a division including motions for
reconsideration which in the opinion of at least three (3)
members merit the attention of the Court en banc and are
acceptable by a majority vote if the actual membership of
the Court en banc.
5. A resolution of the Division denying a party's motion for
referral to the Court en banc of any Division case, shall be
final and not appealable to the Court en banc.
6. When a decision or resolution is referred by a Division
to the Court en banc, the latter may, in the absence of
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sufficiently important reasons, decline to take cognizance
of the same, in which case, the decision or resolution shall
be returned to the referring Division.
7. No motion for reconsideration of the action of the Court
en banc declining to take cognizance of a referral by a
Division shall be entertained.
Appointments and Qualifications
The thing to remember here, we discussed already in de
Castro vs. JBC that the filling up of vacancies in the SC
and the judiciary is not covered by the so called midnight
appointments ban. Specifically with the SC, there is a
mandatory provision that the vacancy must be filled up
within 90 days from the occurrence of the vacancy. That is
why in the case of de Castro, the JBC is even mandated to
start the process for an expected vacancy. If the vacancy
is due to retirement, it is expected to come and therefore,
the JBC is not prevented from and must start the vetting
process for the nominees so that the 90 day period will not
be shortened. The JBC must have to submit the list to the
president as soon as the vacancy occurs.
In the case of Jardeleza, that was taken on your cases on
appointments. The SC made mention of certain procedure
to follow when there is a question raised on the
qualification of a nominee to the SC. There is also a view
in de Castro that the JBC vetting process to the SC is only
required if the nominee or applicant is an outsider.
Remember that at that time, there were several seating
associate justices in the SC who were also applying as
Chief Justice.
The question is, while the Constitution says that
appointments to the judiciary or the the SC must have to
pass through the JBC vetting process if you are a sitting
justice of the SC, should you undergo the same vetting
process?
If you are already qualified to sit in the SC, why should you
be vetted again if you only want to be appointed as Chief
Justice. Should it make you more qualified or is there
another qualification for you to become Chief Justice? This
was not answered however since it was not raised as an
issue in the case of de Castro.
The other thing there is your natural born citizenship, In
the case of Justice Ong of the Sandiganbayan who was
dismissed from service. There was a question on his
citizenship. It was made mention by the SC that in the
constitution for SC and lower collegiate courts, natural
born citizenship is required. For lower courts, the
qualification other than competence, proven integrity,
probity and independence and the practice of law. If you
look at BP 129, even MTC Judges must have to be natural
born citizens. All in the judiciary must be natural born
citizens.
Constitutional Safeguards to Guarantee Judicial
Independence
Judicial Independence comes in two forms:
1. Decisional independence- refers to judges that
they decide cases free from political or popular
influence and based solely on facts as presented
and proven and applicable law.
2. Institutional independence- refers to the
separation of the judiciary from the executive and
legislative branches. It is referred to as collective
independence of the judiciary as a body.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Your constitutional safeguards start with the SALARY.
Art. VIII. Section 10. The salary of the Chief Justice and
of the Associate Justices of the Supreme Court, and of
judges of lower courts shall be fixed by law. During the
continuance in office, their salary shall not be decreased.
Art. XVIII. Section 17. Until the Congress provides
otherwise, the President shall receive an annual salary of
three hundred thousand pesos; the Vice-President, the
President of the Senate, the Speaker of the House of
Representatives, and the Chief Justice of the Supreme
Court, two hundred forty thousand pesos each; the
Senators, the Members of the House of Representatives,
the Associate Justices of the Supreme Court, and the
Chairmen of the Constitutional Commissions, two hundred
four thousand pesos each; and the Members of the
Constitutional Commissions, one hundred eighty thousand
pesos each.
Salary in the judiciary cannot be diminished during their
tenure. They can only be increased and there is no
prohibition on increase to take effect immediately.
SECURITY OF TENURE
Art VIII. Section 11. The Members of the Supreme Court
and judges of the lower court shall hold office during good
behavior until they reach the age of seventy years or
become incapacitated to discharge the duties of their
office. The Supreme Court en banc shall have the power
to discipline judges of lower courts, or order their dismissal
by a vote of majority of the Members who actually took
part in the deliberations on the issues in the case and
voted in thereon.
Section 2 (par. 2). No law shall be passed reorganizing the
Judiciary when it undermines the security of tenure of its
Members.
They will be allowed to serve provided that they are still in
good behavior and have not reached the mandatory
retirement age of seventy. SC Justices even enjoy so
called immunity as impeachable officers and they can only
be removed only through impeachment.
Lower court judges of course or collegiate court judges
only enjoy security of tenure. It is part of your safeguard of
the judicial independence.
Also still on judicial independence is your Non diminution
of appropriation and automatic release of
appropriations.
When the congress approves the budget for the judiciary,
they are supposed to be released automatically. The
judiciary is not required to demand to the DBM for the
release of its appropriations. Ordinarily, members of
congress or other executive offices would require prior
release from the DBM, before the appropriations will be
released to them because in the budgetary sense of it, the
government may not have not the money to fund the
appropriation.
The Constitution also provides that, the appropriations
cannot be diminished from the previous years. It can be
increased or maintained but it cannot be diminished
accordingly.
The next there is the concept of OPEN JUSTICE POLICY.
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It allows criticism to the judiciary but in our study of
freedom of expression, the right to criticize the judiciary
has a limited application. It is referred to as fair criticism
rule. You can criticize the decision provided it is directed
on the merits and not on the Judge or the Justices
themselves. Those are your so-called safeguards to
maintain judicial independence.
Finally, you have your FISCAL AUTONOMY.
Art. VIII. Section 3. The Judiciary shall enjoy fiscal
autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated
for the previous year and, after approval, shall be
automatically and regularly released.
In the old ruling of CSC vs. DBM, SC said that even if
there is a revenue shortfall, meaning government has no
funds. Everybody would suffer including the judiciary,
however, if there is enough money or funds for
appropriations, the judiciary‘s must be automatically
released.
SC held that the Judiciary enjoys fiscal autonomy; their
appropriations shall be automatically and regularly
released. It cannot be impounded and subjected to the
DBM ―no report, no release‖ policy of the DBM. They shall
be given priority in the release of approved appropriations
over all other agencies not similarly vested with fiscal
autonomy, when there is a revenue shortfall.
The judiciary should not be subject to the no report no
release memorandum of DBM since it enjoys fiscal
autonomy.
Jurisdiction of the Courts
Art VIII Section 1. The judicial power shall be vested in
one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
Section 5. The Supreme Court shall have the following
powers:

1. Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
2. Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
b. All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation
thereto.
c. All cases in which the jurisdiction of any lower court is in
issue.
d. All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
e. All cases in which only an error or question of law is
involved.
Article VII Sec 18. Par (3) The Supreme Court may
review, in an appropriate proceeding filed by any citizen,
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the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
Article VII Sec 4 Par 7. The Supreme Court, sitting en
banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or
Vice-President, and may promulgate its rules for the
purpose.
Art IX A Section 7. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of
each Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.
Simple rundown, In what cases will the SC rule en banc:
1. Constitutional issues or cases involving
constitutional issues
2. Petitions to question the exercise of the
president‘s power as commander in chief
3. If the division vote is not met
4. When there is a reversal of doctrine by a division
5. When the court sits as PET
6. In disbarment or dismissal cases where the
penalty is more than one year suspension or the
fine is more than P 10,000.00 or both.
Congressional power over the jurisdiction of the
Supreme Court
(1) The Congress may not deprive the Supreme Court of
its jurisdiction over cases enumerated in Section 5 hereof.
Art VII Section 2 Par 1. The Congress shall have the
power to define, prescribe, and apportion the jurisdiction of
the various courts but may not deprive the Supreme Court
of its jurisdiction over cases enumerated in Section 5
hereof.
The SC‘s jurisdiction of cases are all provided for in the
Constitution. Congress may by law, increase its appellate
jurisdiction. However, the SC must give its prior advise
and concurrence. If there is no prior advise and
concurrence, then the law which increases its appellate
jurisdiction would be considered as invalid.
We have the old case of Fabian vs. Desierto and we a
newer case of Carpio-Morales vs. CA. The case of
Junjun Binay. There was a discussion on the power of
Congress over jurisdiction as well as the rules of
proceedings of courts which may not be with Congress.
In the case of Fabian vs. Desierto, There was a provision
that the decisions of the Ombudsman over certain cases
are directly reviewable by the Supreme Court, which
Supreme Court declared as an unconstitutional provision
considering that when that law was passed, the prior
consent and concurrence of the Supreme Court was not
secured according to what is provided under Section 30 of
Article VI. The Congress cannot enact a law giving the
Supreme Court more work in relation to its review power.
Any law which increases the appellate jurisdiction of the
Supreme Court must have its prior consent.
In that case, decisions of the OMB must be appealed to
the Court of Appeals with respect to administrative
matters. With respect to the criminal cases, it‗s supposed
to be final. If you want that reviewed, you have to seek its
reversal on error on jurisdiction and not on error on
judgment. It is normally under Rule 65 on petitions for
certiorari.
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Administrative Powers
Supervision of Lower courts
All these cases would point out that if there were an
administrative case against a judge or a court employee,
the SC has exclusive jurisdiction over those cases. If it is
other than administrative cases which involves the power
of supervision and to discipline them, you can file it
elsewhere.
Temporarily assign judges to other places in the
public interest
Art VIII Sec 5(3) Assign temporarily judges of lower courts
to other stations as public interest may require. Such
temporary assignment shall not exceed six months without
the consent of the judge concerned.
Order a change of venue
Art VIII Sec 5(4) Order a change of venue or place of trial
to avoid a miscarriage of justice.
This is more in keeping with criminal cases because venue
in criminal cases is jurisdictional. In order to avoid a
miscarriage of justice, caused by refusal or reluctance on
the part of witnesses to testify or there is no available
voluntary witnesses in the venue where the case is filed,
there may be an order of change of venue.
Provided, however, must have to be made upon request
by either of the parties, most especially by the prosecution.
The Supreme Court will have to issue an order directing
such case to be transferred. Until then, the place where
the crime was committed would have to exercise
jurisdiction over the criminal case.
Rule Making power
Art VIII Sec. 5(5) Promulgate rules concerning (1) the
protection and enforcement of constitutional rights, (2)
rules on pleading, practice, and procedure in all courts, (3)
the admission to the practice of law, (4) ) the admission to
the integrated bar, and (5) legal assistance to the under-
privileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall
not diminish, increase, or modify substantive rights. Rules
of procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the Supreme
Court.
In Echegaray vs. Executive Secretary, the discussion
here is whether or not congress still has the power over
the same rules as provided for in the Constitution.
-In the 1935 CONSTITUTION, it is stated under Section 13
of Article VIII that the Congress shall have the power to
repeal, alter or supplement the Rules concerning
pleading, practice, procedure or the rule-making
powers of the Supreme Court.
-In the 1973 CONSTITUTION, this was rephrased and the
rules promulgated by the SC may be repealed, altered or
supplemented by the BatasangPambansa, which was
then the Congress.
-In the 1987 CONSTITUTION, there is no similar
provision.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
In Echegaray, the SC held that 1987 Constitution has
expanded the rule-making powers of the SC and omitted
such power of the Congress. Such omission showed the
intent of the framers to grant the SC the rule-making
power in its entirety without any power remaining with
Congress.
That is why in the case of Carpio-Morales, it was
discussed that the power to grant injunctive reliefs cannot
be legislated. In RA 6770, the Congress provided for a
provision that only the SC can issue an injunctive relief
against the order of the Ombudsman in administrative
cases. That part of the provision was question and the SC
said that is partly unconstitutional because Congress can
no longer alter the rules promulgated by the SC with
respect to procedure. The grant of an injunctive relief is
provided for in the Rules of Court. Rule making power is
now exclusive with the SC.
Art. XII. Section 14 (par 2). The practice of all professions
in the Philippines shall be limited to Filipino citizens, save
in cases prescribed by law.
Art. VII. Section 18 (par. 3). The Supreme Court may
review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
Manner or sitting and number of votes required
Art VIII Section 4.
1) The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en banc
or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days
from the occurrence thereof.
2) All cases involving the constitutionality of a treaty,
international or executive agreement, or law, which shall
be heard by the Supreme Court en banc, and all other
cases which under the Rules of Court are required to be
heard en banc, including those involving the
constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances,
and other regulations, shall be decided with the
concurrence of a majority of the Members who actually
took part in the deliberations on the issues in the case and
voted thereon.
3) Cases or matters heard by a division shall be decided
or resolved with the concurrence of a majority of the
Members who actually took part in the deliberations on the
issues in the case and voted thereon, and in no case
without the concurrence of at least three of such Members.
When the required number is not obtained, the case shall
be decided en banc: Provided, that no doctrine or principle
of law laid down by the court in a decision rendered en
banc or in division may be modified or reversed except by
the court sitting en banc.
In the present Constitution, with respect to voting, it follows
what is commonly referred to as SHIFTING MAJORITY.
Unlike in the 1973 Constitution, any constitutional question
must be heard en banc and a vote of 10 justices is
required. All other cases which is not constitutional
questions that must be decided en banc requires only 8
votes. Division cases would require 5 votes.
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There are two requirements if you did not take part, you
must state the reason or if you have dissented to the
majority decision, you are supposed to write or to have a
dissenting opinion. Others would just concur with the
dissenting opinion of another that would satisfy the
requirement. If you are with the majority then there is no
need to do so.
Requirements as to decisions
There is formal and substantive requirements.
1. Formal
Art. VIII. Section 13. The conclusions of the Supreme
Court in any case submitted to it for the decision en banc
or in division shall be reached in consultation before the
case the case assigned to a Member for the writing of the
opinion of the Court. A certification to this effect signed
by the Chief Justice shall be issued and a copy
thereof attached to the record of the case and served
upon the parties. Any Member who took no part, or
dissented, or abstained from a decision or resolution must
state the reason therefor. The same requirements shall be
observed by all lower collegiate court.
During the time of GMA up to today the SC has this policy
that the spokesperson of the SC will announce the result
of the voting but the written decision comes later. There
were some questions raised, whether this is a violation of
the Constitutional requirement on rendition of decision.
How are decisions promulgated? They are supposed to be
read but what is read is the dispositive portion so the
answer is substantially, the spokesperson of the SC has
complied because he will say the dispositive portion in a
public announcement. That substantially complies with
promulgation. The copies of the written decision will be
circulated later.
In the case of Lagman vs. Executive Secretary, the
decision was uploaded two days after the public
announcement. What they normally say is that there are
draft decisions already on a particular case and these are
what are circulated and discussed during the voting.
The SC and the lower collegiate courts follow what is
known as the RULE ON CERTIFICATION. Before the
decision is read and written, there must have to be a
consultation with the other members of the court and a
certification is required to that effect to be appended in the
decision. There must have a consultation because the
decision of the collegiate courts is not just the decision of
one member but a decision of the collective members.
In the Supreme Court, whether in division or en banc, the
most junior of the justices votes first. This is to prevent the
undue influence of the senior members.
However, there have been several cases in the past that
even if the certification is wanting; it does not make the
decision invalid because the presumption of regularity is
still there. The problem, however, is that it may amount to
an administrative liability to the justices or to the court
involved for failing to write or include the certification.
2. Substantial
Section 14. No decision shall be rendered by any court
without expressing therein clearly and distinctly the facts
and the law on which it is based.
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No petition for review or motion for reconsideration of a
decision of the court shall be refused due course or denied
without stating the legal basis therefor.
While there is no specific requirement as to how thorough
the factual discussion should be and how good the writing
of the decision should be, what is simply required as part
of due process is to inform the parties what evidence
would have believed by the court to have been proven and
what are the laws which were used by the court to decide
the case in favor of one against the other. The reason
being is that parties must be given an opportunity to have
the decision reconsidered or reviewed by a higher court.
In dismissing petitions or in denying motions for
reconsideration, there is no need to restate the facts and
the law. What is required is to state the legal basis for
such denial or dismissal.
Mandatory period for deciding cases
Art. VIII. Section 15.
1. All cases or matters filed after the effectivity of this
Constitution must be decided or resolved within twenty-
four months from date of submission for the Supreme
Court, and, unless reduced by the Supreme Court, twelve
months for all lower collegiate courts, and three months for
all other lower courts.
2. A case or matter shall be deemed submitted for
decision or resolution upon the filing of the last pleading,
brief, or memorandum required by the
Rules of Court or by the court itself.
3. Upon the expiration of the corresponding period, a
certification to this effect signed by the Chief Justice or the
presiding judge shall forthwith be issued and a copy
thereof attached to the record of the case or matter, and
served upon the parties. The certification shall state why a
decision or resolution has not been rendered or issued
within said period.
4. Despite the expiration of the applicable mandatory
period, the court, without prejudice to such responsibility
as may have been incurred in consequence thereof, shall
decide or resolve the case or matter submitted thereto for
determination, without further delay.
There is a special rule under Art. VII. Section 18.
Art. VII. Section 18 (par. 3). The Supreme Court may
review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
Art. XVIII. Section 12. The Supreme Court shall, within
one year after the ratification of this Constitution, adopt a
systematic plan to expedite the decision or resolution of
cases or matters pending in the Supreme Court or the
lower courts prior to the effectivity of this Constitution. A
similar plan shall be adopted for all special courts and
quasi-judicial bodies.
Section 13. The legal effect of the lapse, before the
ratification of this Constitution, of the applicable period for
the decision or resolution of the cases or matters
submitted for adjudication by the courts, shall be
determined by the Supreme Court as soon as practicable.
CONSTITUTIONAL LAW I REVIEW TSN 77
Section 14. The provisions of paragraphs (3) and (4),
Section 15 of Article VIII of this Constitution shall apply to
cases or matters filed before the ratification of this
Constitution, when the applicable period lapses after such
ratification.
There are two views. First is that it is directory when it
comes to the validity of the decision. Decisions rendered
outside of the mandated periods. However, as to the
judges or the justices concerned, the second view is that it
is mandatory.
Judicial and Bar Council
Art. VIII. Section 8. A JUDICIAL AND BAR COUNCIL is
hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio
Chairman, the Secretary of Justice, and a representative
of the Congress as ex officio Members, a representative of
the Integrated Bar, a professor of law, a retired Member of
the Supreme Court, and a representative of the private
sector.
There are different procedures taken on a question raised
against a nominee to the SC. The case of Villanueva vs.
JBC, this involves a rule in the JBC which requires an
applicant to have a certain number of years in service as a
lower court judge to be appointed to a higher court. The
judge here questioned the rationale behind it. The SC
sustained it saying that is to determine that you have
enough competence, integrity, probity and independence
as a lower court judge. However, the SC also mentioned
that the rules of the JBC must have to be published
because the rules in the vetting process affect persons
who are not members of the JBC, just as it is required in
any other issuances which affect the public, there must be
publication.
In the case of Chavez vs. JBC, the SC held that the term
Congress refers to one member of the lower house or a
member of the Senate. It is a non- legislative duty of the
Congress. When the Constitution refers to Congress
sitting there, it does not refer to Congress consisting of
both houses. The practice in the past where there are
2members, one from both houses, jointly participating with
half a vote each or sequentially sitting in the JBC, term-
sharing so to speak, is not valid. There must only be one
representative from congress. The reason of the court is
that the use of the word congress there is not meant to
refer to congress as a bicameral body since the task of the
JBC is not to legislate. It is simply to have a representative
from that branch.
2. Lower Courts
August 22, 2017 A. Uy
The Principle of Hierarchy of Courts simply means that if
the case does not fall under the exclusive original
jurisdiction of the Supreme Court, then the party-petitioner
seeking remedy must resort to the lower courts. The only
exception is if the issue is of transcendental importance.
The Supreme Court cannot be heavily burdened with
cases. This is especially so because the Supreme Court is
not a trier of facts. So the only instance when the party-
petitioner can go to the Supreme Court if such case falls
within the exclusive original jurisdiction of the Supreme
Court.
D. CONSTITUTIONAL COMMISSIONS
Let‘s go to the Commissions. First to take note are the
constitutional safeguards for the independence of such
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Commissions. First there would be your so called
rotational rule. This has been the subject of several bar
questions and there has been a case involving the
exception to this rule. This rule says that except for those
first appointed by the President, the President cannot
appoint all the Commissioners at the same time. This is to
ensure the independence of each Commission.
(Note: Such provision is common to CSC, COMELEC and
COA, iba-iba lang ang number) The Chairman and the
Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a
term of seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven years,
a Commissioner for five years, and another Commissioner
for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed
or designated in a temporary or acting capacity.
As to terms of office, except for those first appointed, they
shall serve for a term of seven years. But as those first
appointed, they shall serve in staggered terms of 7, 5, 3 ,2
or 1 as the case may be. For those subsequently
appointed, they shall serve for seven years. For those who
serve staggered terms, they shall be considered to have
served for at least one full term and therefore, such
service disqualifies them for re-appointment. There shall
be no temporary appointments. In the designation of the
temporary replacement of a Chairperson pending the
determination of the new Chairperson, it is not the
President that decides the temporary chairman rather it is
decided by the members of that particular commission.
Still in relation to the no temporary appointment rule, in
case there are any grievances on account of grounds
except the self-expiration of the term, the new appointee
shall serve only for the unexpired term. Then, that
appointment is considered as a full term. In the case of
Funa versus Villar, which has already been the subject of
bar exam:
FUNA VS. VILLAR
The first situation is where an ad interim appointee after
confirmation by the Commission on Appointments serves
his full 7-year term. Such person cannot be reappointed
whether as a member or as chairman because he will then
be actually serving more than seven (7) years.
The second situation is where the appointee, after
confirmation, serves part of his term and then resigns
before his seven-year term of office ends. Such person
cannot be reappointed whether as a member or as chair to
a vacancy arising from retirement because a
reappointment will result in the appointee serving more
than seven years.
The third situation is where the appointee is confirmed to
serve the unexpired portion of someone who died or
resigned, and the appointee completes the unexpired
term. Such person cannot be reappointed whether as a
member or as chair to a vacancy arising from retirement
because a reappointment will result in the appointee also
serving more than seven (7) years.
The fourth situation is where the appointee has previously
served a term of less than seven (7) years, and a vacancy
arises from death or resignation. Even if it will not result in
his serving more than seven years, a reappointment of
such person to serve an unexpired term is also prohibited
because his situation will be similar to those appointed
under the second sentence of Sec. 1(20), Art. IX-C of the
Constitution [referring to the first set of appointees (the 5
and 3 year termers) whose term of office are less than 7
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years but are barred from being reappointed under any
situation.
Because the Commissioner takes up the position of the
Chairperson who has retired, there will now be a vacancy
as to the seat of the Commissioner. The person who will
be appointed in the place of the Commissioner shall also
serve for the unexpired term. Similarly, that will be
considered as appointment for the unexpired term and
such person is likewise disqualified from being re-
appointed. The previous rule was that a person can serve
for the unexpired term plus additional term provided that
the whole period does not exceed 7 years. Such rule is no
longer applicable.
Article IX-A, SECTION 5. The Commission shall enjoy
fiscal autonomy. Their approved annual appropriations
shall be automatically and regularly released.
Same with the Judiciary, each commission shall have its
own budget and fiscal autonomy. With regard to the
requirement of prior clearance from the DBM, the
Commissions shall not be subject to such prior clearance
for as long as there is appropriations made.
As to qualifications, there are additional requisites for
Commissioners, aside from those basic ones given by the
Constitution. For example:
Article 1X-B, SECTION 1. (1) The Civil Service shall be
administered by the Civil Service Commission composed
of a Chairman and two Commissioners who shall be
natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age, with
proven capacity for public administration, and must not
have been candidates for any elective position in the
elections immediately preceding their appointment.
Article IX-C, SECTION 1. (1) There shall be a
Commission on Elections composed of a Chairman and
six Commissioners who shall be natural-born citizens of
the Philippines and, at the time of their appointment, at
least thirty-five years of age, holders of a college degree,
and must not have been candidates for any elective
position in the immediately preceding elections. However,
a majority thereof, including the Chairman, shall be
Members of the Philippine Bar who have been engaged in
the practice of law for at least ten years.
Article IX-C, SECTION 1. (1) There shall be a
Commission on Audit composed of a Chairman and two
Commissioners, who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least
thirty-five years of age, certified public accountants with
not less than ten years of auditing experience, or members
of the Philippine Bar who have been engaged in the
practice of law for at least ten years, and must not have
been candidates for any elective position in the elections
immediately preceding their appointment. At no time shall
all Members of the Commission belong to the same
profession.
In the case of Cayetano versus Monsod, it has been
defined what the practice of law is. For as long as you are
a member of the Philippine bar and you apply your legal
knowledge, then you are in the practice of law, even if you
are just pushing paper.
CAYETANO VS. MONSOD
Black defines "practice of law" as: The rendition of
services requiring the knowledge and the application of
legal principles and technique to serve the interest of
another with his consent. It is not limited to appearing in
court, or advising and assisting in the conduct of litigation,
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
but embraces the preparation of pleadings, and other
papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all
kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for
them in matters connected with the law. An attorney
engages in the practice of law by maintaining an office
where he is held out to be-an attorney, using a letterhead
describing himself as an attorney, counseling clients in
legal matters, negotiating with opposing counsel about
pending litigation, and fixing and collecting fees for
services rendered by his associate.
Let‘s go to the disqualifications:
Article IX-A, SECTION 2. No Member of a Constitutional
Commission shall, during his tenure, hold any other office
or employment. Neither shall he engage in the practice of
any profession or in the active management or control of
any business which in any way be affected by the
functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in
any franchise or privilege granted by the Government, any
of its subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations or their
subsidiaries.
Take note that unlike the members of the Judiciary, the
members of the constitutional commissions may actually
engage in business for as long as he is not in active
management or control of the business. The member
should also not be financially interested in the contract
engaged by the Government. For example, you are a
member of COMELEC and you are engaged in the sale of
election paraphernalia.
Also for purposes of appointment, the members must not
have been candidates for any elective position in the
elections immediately preceding their appointment.
As to other commissions, there must be a one year gap
between the elections and the appointment. That is why in
the one year anniversary of Digong‘s presidency, there
were certain individuals who lost are subsequently
appointed. Such disqualification does not apply to those
who have run and won. There is no one year gap for the
winners. A good example is Secretary Manny Villar who
won in the lower house and was subsequently appointed
as Chairman of the House Committee on Trade and
Industry.
For those in the constitutional Commissions, however, it
does not matter if the candidate won or lost. They must not
have been candidates for any elective position in the
elections immediately preceding their appointment.
As to powers, all constitutional Commissions have
administrative and quasi-judicial powers. They do not have
judicial powers. The case DOF versus dela Cruz says
that the Commissions have no judicial powers. In this
case, it was discussed as the jurisdiction of the Civil
Service Commission as to personnel actions.
As the "central personnel agency of the Government" with
quasi-judicial powers and as the body tasked to
administer the civil service, the Civil Service Commission
is the "sole arbiter of controversies relating to the civil
service[,]" including personnel actions, as this court has
ruled.
In the case of Funa versus Duque, the question is WON
the CSC Chair can be appointed ex-officio as a member of
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the Board of Directors or Trustees in an ex officio capacity
of the (a) Government Service Insurance System (GSIS);
(b) Philippine Health Insurance Corporation
(PHILHEALTH), (c) the Employees Compensation
Commission (ECC), and (d) the Home Development
Mutual Fund (HDMF). The Supreme Court said that these
bodies are executive in nature, being under the control of
the President. Therefore, this is the situation which the law
seeks to avoid. Any of the Chairperson of Constitutional
Commissions cannot sit as a member of any body under
the control of the President. Our Constitution makes them
independent from the executive and must be kept as such.
The scope of the Civil Service covers all GOCC‘s with
original charters. Those without original charters fall within
the Labor Code.
With respect to the COMELEC, any law with respect to
election are under the jurisdiction of the COMELEC> If you
notice there are many cases assigned in your syllabus,
and most of these cases are about how you go about the
jurisdiction of the COMELEC and the jurisdiction of the
electoral tribunal. As we have discussed under electoral
tribunals, when the person becomes a member becomes
now subject to the electoral tribunal. And he is considered
as a member only when he was validly proclaimed, has
taken the oath and begun his office. That was the case of
Reyes versus Comelec:
REYES VS. COMELEC
There was no valid proclamation as COMELEC had
already determined that she is not a Filipino citizen. In this
case, before and after the 18 May 2013 proclamation,
there was not even an attempt at the legal remedy, clearly
available to her, to permit her proclamation. What
petitioner did was to "take the law into her hands" and
secure a proclamation in complete disregard of the
COMELEC En Bane decision that was final on 14 May
2013 and final and executory five days thereafter.
The other cases will tell you as you have studied in
election laws, as a general rule, before you can go to the
Supreme Court, there must be first a decision of the
COMELEC in division, then a subsequent motion for
reconsideration, for the COMELEC en banc to have
jurisdiction. Without such Motion for Reconsideration, you
cannot eventually reach the Supreme Court. There are
cases however that you can go from the decision of the
petition directly to the Supreme Court like in the case of
Barro versus Comelec. The two instances where one
may go directly to the SC from a decision in division are
(1) when there is grave abuse of discretion and (2) when
the rules of the Comelec does not allow such incident to
be resolved by the Comelec en banc. The case of Sevilla
versus Comelec reminds us that usually in the case of a
collegial body, shifting majority is usually applied. But in
the case of the Comelec, it must be the majority of the
members of the Comelec en banc:
BARRO VS. COMELEC
We have previously ruled that a majority vote requires a
vote of four members of the Comelec en banc. In
Marcoleta v. Commission on Elections, we declared "that
Section 5(a) of Rule 3 of the Comelec Rules of Procedure
and Section 7 of Article IX-A of the Constitution require
that a majority vote of all the members of the Comelec en
banc, and not only those who participated and took part in
the deliberations, is necessary for the pronouncement of a
decision, resolution, order or ruling."
So take note four is the majority. So even if four
constitutes a quorum, what is required for a decision is a
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
majority of all the seven members, thus, the minimum
number of votes required is 4.
With respect to your Commission on Audit, what you have
to remember is that if there is any public or government
funds which flows to any person or entity, whether the
recipient is government or private, CoA can exercise
power to audit all expenditures or accountabilities. The
cases will tell you that CoA can issue notice of
disallowances. CoA has the power to prevent illegal
disbursement of funds. The case of Funa versus Manila
Office explains why we do not have diplomatic relations
with Taiwan; what we have is Manila Economic and
Cultural Office (MECO), which is the entity which acts as
the Philippines‘ representative with Taiwan to do consular
work. So if we have workers in Taiwan, the government
can lend assistance through MECO. CoA has the power to
audit such funds being funneled to MECO.
All government bodies are subject to pre-audit and post-
audit. However, take note:
Article IX-D, SECTION 2. (1) The Commission on Audit
shall have the power, authority, and duty to examine,
audit, and settle all accounts pertaining to the revenue and
receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or
controlled corporations with original charters, and on a
post-audit basis: (a) constitutional bodies, commissions
and offices that have been granted fiscal autonomy under
this Constitution; (b) autonomous state colleges and
universities; (c) other government-owned or controlled
corporations and their subsidiaries; and (d) such non-
governmental entities receiving subsidy or equity, directly
or indirectly, from or through the Government, which are
required by law or the granting institution to submit to such
audit as a condition of subsidy or equity. However, where
the internal control system of the audited agencies is
inadequate, the Commission may adopt such measures,
including temporary or special pre-audit, as are necessary
and appropriate to correct the deficiencies. It shall keep
the general accounts of the Government and, for such
period as may be provided by law, preserve the vouchers
and other supporting papers pertaining thereto.
All the rest of the bodies are subject to pre-audit and post-
audit while those mentioned are subject only to post-audit
procedure. They are not required to be subject to pre-
audit. While CoA exercises executive and quasi-
legislative functions, in the 1996 case of Aguinaldo
versus Sandiganbayan (not in syllabus) there is a view
that the findings of CoA is conclusive only to the
administrative aspect of auditing. In this case, CoA
practically cleared Aguinaldo of the expenditure. And
Aguinaldo who is being subject to criminal proceedings of
malversation set up the defense ―Take a look at CoA, it
cleared my liability‖. The Supreme Court held that:
COAs approval of petitioners disbursements only relates
to the administrative aspect of the matter of his
accountability but it does not foreclose the Ombudsmans
authority to investigate and determine whether there is a
crime to be prosecuted for which petitioner is answerable.
Therefore, as correctly stated by the Sandiganbayan in its
order of April 12, 1996, while the COA may assist in
gathering evidence to substantiate a charge of
malversation, any determination made by it will not be
conclusive as to whether adequate cause exists to
prosecute a case. This is so because the Ombudsman is
given the power to investigate on its own an illegal act or
omission of a public official.
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It means that Aguinaldo did not violate any of the auditing
rules of CoA but it does not mean the crime of
malversation was not committed.
As to the decisions in the administrative aspect, Article IX-
A, Section 7 applies:
Article IX-A, SECTION 7. Each Commission shall decide
by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is
deemed submitted for decision or resolution upon the filing
of the last pleading, brief, or memorandum required by the
rules of the Commission or by the Commission itself.
Unless otherwise provided by this Constitution or by law,
any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy
thereof.
So for example, as mentioned earlier, in the case where
there is employee movement in DOF versus dela Cruz, if it
is a constitutional question, it must be with the RTC. Same
with all other Commissions. For example, in one case (sir
does not mention), if a person is caught cheating in the
civil service exam, such question of whether or not to allow
him to take again is not appealable to the Supreme Court.
To question the decision, it has to be with the RTC. In
another case, (sir does not mention), a person who
questions the conduct of proceedings by an election officer
cannot go directly to the Supreme Court. It has to be with
the RTC.
Take note that what is being referred to in the provision is
final orders and final judgments in the exercise of the
Constitutional Commissions quasi-judicial functions. These
are brought before the Supreme Court on certiorari. With
respect to the CSC, the view would be Rule 43 of the
Rules of Court to the Court of Appeals. As to Commission
on Audit, the review would be Rule 64 in Relation to Rule
65. If you want to question the Comelec, you go for Rule
64. If you want to question the electoral tribunal, you go for
Rule 65. So those are the similar aspects of those
Constitutional Commissions.
V. THE AMENDING PROCESS
A. Proposal
ART XVII Section 1. Any amendment to, or revision of,
this Constitution may be proposed by:
The Congress, upon a vote of three-fourths of all its
Members; or
A constitutional convention.
1. By Congress
ARTICLE XV AMENDMENTS (1935 Constitution)
Section 1. The Congress in joint session assembled, by a
vote of three-fourths of all the Members of the Senate and
of the House of Representatives voting separately, may
propose amendments to this Constitution or call a
convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the
amendments are submitted to the people for their
ratification.
Amendments by the Constitution can be had if Congress
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
constitutes itself as a Constituent Assembly by the
required ¾ votes.
2. By Constitutional Convention
ART XVII Section 3. The Congress may, by a vote of two-
thirds of all its Members, call a constitutional convention,
or by a majority vote of all its Members, submit to the
electorate the question of calling such a convention.
3. By the people through initiatives
ART XVII Section 2. Amendments to this Constitution
may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of
the total number of registered voters, of which every
legislative district must be represented by at least three
per centum of the registered voters therein. No
amendment under this section shall be authorized within
five years following the ratification of this Constitution nor
oftener than once every five years thereafter.
The Congress shall provide for the implementation of the
exercise of this right.
[FROM 2016] Revision vs. Amendment
Basic distinction between revision and amendment is the
type of change of the existing Constitution. If the
presidential set up is maintained even if all the words are
affected, that is just an amendment. But, if the basic
framework is changed like there are now proposing, the
French Model Federal System where there is
parliamentary, it may be considered as a revision not a
mere amendment.
[2017] Let‘s go the the final item: the amending process.
First, there is amendment by constitutional assembly. And
second, there is constitutional convention.
Is the concept of initiative and referendum allowable to
amend the Constitution? While Santiago versus
Comelec says no, if you read Lambino versus Comelec,
it is sufficient. If you read the case of Lambino, there are
some who said it was an obiter. But subsequent to the
case of Lambino, there is a ruling regarding the use of
initiative and referendum to amend the Constitution. (sir
does not mention) So seemingly, it is applicable. The
latest presidential issuance is Executive Issuance No. 10
of 2016 by your President Duterte. (the title is CREATING
A CONSULTATIVE COMMITTEE TO REVIEW THE 1987
CONSTITUTION). It speaks of a Constitutional Committee
composed of not more than 25 members, which must be
at least 25 years of age.
The argument is that is if it is by Constitutional Convention,
it is going to be very expensive, because you have to call
the Constitutional Convention. There are two electoral
exercises: first you have to ask the people WON they want
a constitutional convention and second to elect the
members of the constitutional convention. And with
respect to Constitutional Assembly, there will be
representatives from different sectors and district who
would likewise be paid salaries. Mura pud silag
congressmen.
What can be taken out in the present Constitution? How
about the executive congress? Can you add more
politicians? You make a national congress and local
congress. (discussions about differences in US Fedaral
government and our government) We follow the theory
that the Constitutional Assembly are co-equal with the
CONSTITUTIONAL LAW I REVIEW TSN 81
other Constitutional bodies. Meaning the substantive
aspects of such Assembly are beyond the powers of the
other bodies.
B. Ratification
ART XVII Section 4.Any amendment to, or revision of, this
Constitution under Section 1 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than
ninety days after the approval of such amendment or
revision.
C. Theories regarding the position of a
Constitutional Convention in our system of
government
TOLENTINO VS. COMELEC
The theories are such that if it were to be Con-Ass, the
task of Congress to propose amendments or revisions to
the Constitution is not considered part of legislative
function. They perform the task to propose amendments or
revision as the representatives of the people as the
constitution has allowed it. Meaning they are not
performing their tasks as members of Congress. So, their
exercise of the power to propose amendment or revisions
is delegated directly to them by the people because this is
part of the Constitution of Sovereignty in Amendments or
Revision of the Constitution.
[FROM 2016] In the Constitutional Convention, the
theories are:
1. The Con-Con is subject to legislative
control. Because by Constitution,
Congress would have to call for the
establishment if not composition, if not
creation of the Con-Con. By that, Congress
will provide by law, the conditions,
qualifications, scope of the power and
therefore generally under that theory, the
Con-Con is subject to legislative control.
2. Conventional Sovereignty. Like a Constituent
Assembly, when the Con-Con exercises its
duty, it is directly taking its power from the
Sovereign, or the people in their
Sovereign Capacity. Therefore it is not subject
to any control.
Co-Equality. The Con-Con is considered as
Co-equal with the rest of the branches of
the government especially the Courts so that if
the question pertains to the substantive
matters with respect to amendments or
revisions, it is beyond the review of the courts.
D. Judicial Review of the Amending Process
[FROM 2016] The Con-Con cannot be limited as to
what it intends to change, the proposals of what are the
amendments or what are the revisions.
It can be however controlled by the courts if they go
beyond the procedural allowance under the Constitution.
So that there are requirements as to votes, there are
requirements as to qualifications perhaps, as to
who can be appointed/elected to the Con-Con,
there are provisions respecting the approval in the
holding of the plebiscite.
If these procedural matters are not complied with or
have violated the terms of constitutional allowances,
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018

then under this theory, SC may exercise judicial

review over such matter in the amending Process. Other
than that, the courts have no power to review.
Please take notice that there has been a change in the
phraseology:
In the 1935 constitution, the word election was
used for purposes of approving, or not
approving the proposals.
I n th e , 1 98 7 Co ns t i tu t ion i t h as be en
c h an g ed to pl e bi sc it e .
Election pertains to persons, we choose
candidates. In plebiscite, we technically choose
preferences as to the proposed amendments as to the
proposed amendments, revision or legislation as the
case may be.
So you have come across certain creation of LGU‘s,
and they are supposed to be that proposal to
create a new LGU or a political subdivision is
subject to a plebiscite not an election. Because we
choose preferences as to the proposal and not to choose
persons.
------------------------END OF CONSTI I----------------------------

Compiled by: Azzedine Sadsad

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