CONSTITUTIONAL LAW 1 REVIEW 2015
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July 21, 2015- Justin
JUDICIAL ELABORATION OF THE
CONSTITUTION
Thing to remember there would be your Rules of
Construction of the Constitutional Provisions.
1. EXECUTING vs. NON SELF-
EXECUTING PROVISIONS
We start with the discussion on the distinction
between self-executing and the non self-
executing provisions. We all know that,
generally, provisions in the constitution are
considered to be SELF-EXECUTING. There is
no need for an enabling act or any act of
Congress for it to be a direct source of a right.
Any person whose right under the Constitution is
violated can go directly to the court to seek
redress for such violation. But generally, they
are only good for self-executing provisions.
The general rule, therefore, is that they are all
considered self-executing except by the express
provision itself or by the intent of the framers,
they are NOT SELF-EXECUTING. From the
cases you have read, Article II is generally non
self-executing. There are some scattered
provisions like Initiative and Referendum under
Article VI, that is non self-executing. There is a
need for Congress to enact a law for us to
exercise our supposed delegated authority,
giving the right to legislate under initiative and
referendum. So, unless it is clear from the
provision itself or from the intent of the framers
that the provision is non self-executing., all the
rest are supposed to be considered self-
executing.
2. PROSPECTIVE IN APPLICATION
Another rule in construction is that they are
supposed to be PROSPECTIVE IN
APPLICATION. The Constitution is not a penal
law. Therefore, there is no retroactive
application on any of the provisions of the
Constitution. If you remember, the so called
Miranda rights, it was a late 1960 ruling of the
US Supreme Court in the case of Miranda vs.
State Of Arizona. It was first copied or
institutionalized in the 1973 Constitution. So any
extra-judicial confession taken prior to our 1973
Constitution that did not comply with the so
called Miranda Warnings cannot be considered
as excluded in evidence or covered by the
exclusionary rule simply because the Miranda
Rights first saw its light of day under our 1973
Constitution so it’s not retroactively applied. It’s
prospective in application.
If there is one provision in our Constitution that
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we know of that is APPLIED RETROACTIVELY
that is the 1987 definition of who are considered
Natural Born Citizens under the 1987
Constitution, Article 4. In the 1973 (Constitution),
there was a definition of who are natural born for
the first time and these are the persons who
have not performed an act to acquire or perfect
(Philippine) citizenship. It did not however
specifically include those who elect Philippine
citizenship upon reaching the age of majority if
they have been born under the 1935
Constitution of Filipino Mother and foreigner
father. So that if a child is born under the 1935
(Constitution) but has elected under 1973, there
was seemingly a situation or a problem of
whether that persons can be considered Natural
Born considering that they have performed an
act to perfect such Philippine Citizenship. In the
1987 (Constitution), that has been clarified by
the expansion of the definition of who are natural
born; this time specifically covering those who
have elected Philippine Citizenship under the
provision of the 1935 (Constitution). So that is
applied retroactively to correct that so-called
anomalous situation where there are children
who were born under the 1935 of that
circumstance but elected in the 1973 who may
have not been considered Natural Born Citizen
having performed an act to perfect or acquire
Philippine Citizenship. So, (it is) prospective in
application.
3. COMMON USE RULE
Then, the third rule you have is the COMMON
USE RULE. In the case of Chavez vs. JBC, the
Supreme Court clarified, it is based on the Latin
maxim, Verba Legis non est recedendum: From
the words of the statute, there shall be no
departure.
For two basic reasons:
(1) the intent and objective of the framers of the
Constitution are already in the words and
phrases;
(2) the Constitution is not supposed to be a
lawyers’ or law students’ or judges’ document. It
is for everybody. It is not for the understanding
of those who study law only but to be
understood by everybody considering it is the
basic law. And for this reason, ordinary
dictionary meaning of the words and phrases in
the constitution must be used.
The exception, again, is that if technical
meaning is intended by the framers to be used.
A classic example is the use of the word
residence. Residence as qualification for public
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office under the 1987 Constitution means that
you have to be a domiciliary or a legal resident
of that place. But the constitution still uses the
word “residence” or “residency”. But the intent
there is it must be your legal residence or
domicile and not actual or physical residence.
Conversely, the use of the word or phrase in
your "bill of rights for right to bail, the threshold
when right to bail is a matter of right or discretion
is the penalty of reclusion perpetua. The term
reclusion perpetua is not in its technical meaning
because that is not the Revised Penal Code. It
does not carry any accessory penalty because
the Constitution does not provide for penalties.
And so, when that provision in the Bill of Rights
talks about reclusion perpetua, it is supposed to
be understood in its loose meaning to include
life imprisonment. So if the person is charged
with a crime punishable by life imprisonment at
least or higher, then bail becomes a matter of
discretion.
Writ of habeas Corpus, is that in its ordinary or
technical meaning? There can be no other
meaning because there is only a technical
meaning if it is mentioned in Article III or under
Article VII, Section 18 when the President
suspends the privilege of the writ of habeas
corpus. There is no dictionary meaning for that.
It’s only technical meaning.
4. CONSTITUTIIONAL PROVISIONS
CONSIDERED DYNAMIC
The last rule used in construing Constitutional
Provisions is the rule that the
CONSTITUTIONAL PROVISIONS MUST BE
CONSIDERED AS DYNAMIC. It must be
construed not only to meet the issues or
questions of the day but must be appropriate for
the unfolding events of the indefinite future. In
Datu Michael Abas Kida vs. Senate, the
unfolding events of an indefinite nature, because
it is said that the measure of a good constitution
is that the words and phrases are capable of
construction not only to answer the issues of the
case of today but those questions or issues that
may be raised in the future.
Perhaps, a good example for you is the case of
Obergefell vs. Hodges of the US Supreme
Court, the same sex marriage. [#LoveWins,
Rainbows all over Facebook]
That is a 14th amendment case. 14th amendment
of the US Constitution is Due Process and Equal
Protection. And the word like “liberty”, that No
one shall be denied of his life, liberty or property
without due process nor shall any person be
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denied an equal protection of the laws. Our
understanding in Philippine context is that liberty
refers to lack or freedom from physical restraint.
Life- you can be executed provided with due
process; your property can be taken from you
provided there’s due process.
The US Supreme Court has ruled that liberty
includes the right of same-sex couples to get
married because the right to marry is part of the
fundamental right of liberty. It expanded it not
only to include physical restraint but the right to
marry also. So measure of a good constitution is
words and phrases are capable of being
construed to adapt to the present demands.
OBERGEFELL vs. HODGES:
Facts:
The case is based on 3 consolidated cases.
Obergefell here is a man who married another
man in another state because it is not legal in
Ohio. Hodges is the director of the Department
of Health in the State of Ohio. The marriage was
in another state where same-sex marriage was
allowed; almost in articulo mortis. After his
partner died, Obergefell brought his body to
Ohio and registered his death in the department
of health and he wanted himself to be placed as
his surviving spouse. Hodges refused because
same-sex marriage is not allowed in Ohio.
The other case involved 2 females in Michigan
who were adopting children with neonatal
problems because they were working in the
neonatal department of a hospital, and Michigan
does not allow adoption if it’s not by a married
couple or by a single individual. They want
themselves to be the adopting parents, both of
them, which Michigan doesn’t allow. Their
contention is that if one of them is placed as the
adoptive parent and that adoptive parent would
die, what would happen to these children when
there is another one who could very readily act
as the adoptive parent.
The other one is the case of an army man from
New York who, before deployment in Pakistan,
married his male partner. Same-sex marriage is
allowed in NY. When he came back from
Pakistan, he was assigned to Tennessee and
every time he crossed State lines, he would be
married in NY and single in Tennessee. So he
wanted to be married anywhere. So he raised
that issue also. Why does their civil status
change just because they cross the state lines?
Ruling: The decision was all 50 states are now
considered banned from passing any legislation;
all existing legislation are deemed
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unconstitutional. All other states that do not have
legislation can no longer legislate to define as
prohibited act same-sex marriage.
THEORY OF JUDICIAL REVIEW
Judicial Review is a common question in your
bar exams. The question actually requires you to
show your understanding of the conditions for
judicial review. As you know, there are only four.
1) There must be actual case or
controversy.
2) It must be raised at the earliest
opportunity.
3) It must have to be raised by the
proper party.
4) The constitutional question must be
the very lis mota of the case.
To declare the law as unconstitutional is not the
intent of the bar examiner. It is for the examiner
to know whether you know the requisites or
concepts for judicial review. Because if you
understand the concepts or requisites, if one or
all of the requisites are missing, you should
dismiss the petition. Do not ever attempt to
resolve a constitutional question because you
are not yet the Supreme Court. You just look for
all of these four (referring to conditions). If one,
some or all are missing, you must have to
dismiss the petition. The exception is if the
Supreme Court has already decided a case
similar to what was presented. And that is where
the problem lies. If you haven’t read the case,
then you would not know. [!!!]
The four conditions generally must be present.
The Supreme Court has been very strict in
requiring the presence of the 4.
Judicial Review is an exception. It is not a power
exactly by the court but it is a duty of the court
when there is encroachment into the
constitutional allocation of powers. There is no
problem seemingly when one branch or officer
of the government exercises power and
authority within the limitations. But if one has
encroached into the other or the power is not
traditionally granted to that entity, office, or
officer, but exercised by another, then there
would be some issues on who has the authority.
If you remember the old case of Angara vs.
Electoral Commission, this all started the
Theory of Judicial Review. This was Congress
creating an electoral commission which was
similar to an electoral tribunal now. The electoral
tribunal in the present is in the Constitution. The
electoral commission before under the 1935
Const. was not in the constitution. It was just
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created by Congress. So an electoral
commission fixed the made a deadline for filing
of protest in all protest cases and Congress also
made its own deadline for filing of protests. The
question is who has the power to fix the date or
deadline for filing of protests. Is it the Congress
or is it the Electoral Commission created by
Congress specifically to hear and decide
election protests? If traditionally, it is exercised
by this, there may seemingly be a problem. But
if one is exercised by another, like the electoral
tribunal now, which the electoral commission
before, then a problem may arise, because it
has not been traditionally granted to that office
or entity or officer in our system of the
Constitution.
When that question comes, the court is now
actually exercising its power but is exercising a
duty based on several other principles like
separation of powers. Its constitutional obligation
to exercise review powers when it is necessary.
So, it is also dependent upon some other
principles like presumptions of constitutionality.
When a law, an act, or action of an officer is
raised before the courts on seemingly
constitutional questions, there is always a
presumption of constitutionality. Unless it is
clear that the four conditions are present and are
met, it is the only time the court would have to
exercise its duty, not the power, of judicial
review.
Judicial review, prior to the 1987 Constitution, is
a discussion, a concept, and a theory. It has
been incorporated in the 1987 Constitution
under Section 1, Article VIII. The definition of
judicial power has been expanded to include in
its second phrase what we know then as judicial
review. So, if there is grave abuse of discretion
amounting to lack or excess of jurisdiction on
any branch or instrumentality of the government,
the court can exercise judicial power as well. But
correctly understood, that should be JUDICIAL
REVIEW POWERS and not JUDICIAL POWER
PER SE. Judicial power per se involves only the
rights of the court to settle legal conflicts which
are justiciable and legally determinable and
enforceable, being a justiciable question.
Judicial review power is the extraordinary power
of the courts to look into the acts of coordinate
branches of government or officers as part of its
duty.
RULE OF THUMB: When the question is
presented, go and look for ALL the conditions.
Missing one, some, or all, the petition shall be
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dismissed. Do not attempt to declare the law in
question as unconstitutional. The exception
again is if there is a case already decided by the
court. Even if you know that there are
exceptions to the rule.
1. Appropriate Case or Controversy
When is there an appropriate case or
controversy?
Concepts:
 Issue of Ripeness
 Earliest Opportunity
Candari vs. Nolasco (2012) – Supreme Court
describes an actual case or controversy as one
involving a conflict of legal rights and assertion
of opposite legal claims, susceptible to judicial
resolution.
Manila Memorial Park vs. DSWD – This
involves the citizens’ discount. [Appropriate
case] is a characterization of assertion of
opposite legal claims susceptible to judicial
resolution.
By the way, WHAT ARE APPROPRIATE
PETITIONS? You have come across all the
readings, first year to now, which are considered
to be proper petitions to raise constitutional
questions. You all have your petitions under
Rule 65. Normally, it is certiorari under Rule 65
because it is a jurisdictional question. The officer
or office or department acted without jurisdiction.
It may also include mandamus or prohibition.
Kalipunan Ng Mahihirap vs. Robredo (730
SCRA) – Supreme Court found petitions for
certiorari and mandamus to be inappropriate
petitions because of the nature of the
controversy, subject of those petitions.
But in almost all cases, where there is a
question of constitutionality, it is by certiorari and
prohibition or prohibition and mandamus.
Included in case of actual controversy is the
ISSUE OF RIPENESS.
LAMP vs. Sec Of DBM– This involves the
PDAF before. Supreme Court mentioned that in
the Philippines, the issue of ripeness is generally
treated in terms of actual injury to the plaintiff.
Meaning, if there is no injury to the plaintiff that
is impending, the issue is not ripe for judicial
determination. You cannot file a petition seeking
declaration of unconstitutionality because it is
not yet ripe. So it is dependent upon the injury
suffered by the party or person seeking its
declaration of unconstitutionality.
Araullo vs. Aquino – This is the DAP case.
Question there is the appropriateness of the
petition filed because they filed certiorari and
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prohibition filed under Rule 65. They question
the jurisdiction by the President to implement the
DAP and to prohibit the president from
implementing the DAP. (also raises issue of
ripeness)
Funa vs. MECO – This is your case involving
Manila Exchange and Cultural Office in Taiwan.
Since we do not have formal and official
diplomatic relations with Taiwan because of the
One-China policy, all our “consular needs” in
Taiwan such as OFWs are taken care of this
MECO. And what was filed here is a petition for
mandamus to compel the COA to audit all the
funds received by MECO because employers
are supposed to pay to the Philippine
Government for every Filipino worker employed
and all visa applications of visiting tourists. So
Funa wanted COA to audit that.
Is the petition for mandamus proper?
Supreme Court did not dismiss the petition and
found it to be proper because it is a question to
compel a ministerial act on the part of COA to
conduct an audit on all government funds
regardless of wherever it may be found.
Imbong vs. Ochoa – This involves the RH law,
whether the question in RH law is ripe for
adjudication.
EARLIEST OPPORTUNITY is the next
condition. We said earlier, petitions for Rule 65
are the normal petitions to raise constitutional
questions. But the conditional requisite of
earliest opportunity will also tell you that if you
are charged criminally and your defense is that
the law is unconstitutional, you can raise it as a
defense because you have to raise it at the
earliest opportunity and that is when you are
charged at the Court of First Instance. That it is
unconstitutional, either as applied or under the
overbreadth doctrine if it involves your free
speech rights and freedom of religion. Raising it
as a defense is a requisite. Otherwise, you will
not be allowed to raise it later even if you file a
petition for certiorari because you have not
raised it at the earliest opportunity. Again, the
question of Constitutionality must have to be
raised at the earliest opportunity.
July 22, 2015- Kye
*First few seconds were corrupted.
*last year’s tsn was incorporated on topics not
elaborated
(from last year’s tsn) The 2nd requirement is that
it must be raised at the earliest opportunity. In
relation to that, the concept of RIPENESS states
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that there is already a violation or an impending
violation. If the acts sought to be declared
unconstitutional is not prevented or is not
declared unconstitutional, it will most likely be
ripe for violation. So, it is ripe for judicial
adjudication.
Based in that old case of Ynot vs. IAC- lower
courts have jurisdiction to hear and decide
constitutional cases or issues subject to the
“modesty” that is required of it. If it can be
avoided, the issue of wisdom must not be
resolved by the lower court. Though, if it cannot
be avoided, it should resolve the issue because
it has jurisdiction, subject to the review powers
by the SC, under Article VIII, Section 5 (2a):
Section 5. The Supreme Court shall
have the following powers:
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.
Now, the other matter with respect to earliest
opportunity would be the concept of
MOOTNESS.
When by reason of a SUPERVENING EVENT,
the petition or the question raised has become
moot or academic; can the court still resolve the
constitutional question? Yes.
Just like in the issue of locus standi, even if the
petitioner has no legal standing, as an
exception, the court may resolve the
constitutional question because of the
DOCTRINE OF TRANSCENDENTAL
IMPORTANCE.
Just like in SUPERVENING EVENT that renders
a petition moot or academic, even if there is no
more need to render a resolution of the case,
the SC may still opt to decide the constitutional
question under any of the following
circumstances:
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1. There is a grave violation of the
constitution
2. The exceptional character of the
situation, where there is paramount
public interest involved, meaning the
question is NOVEL
3. The constitutional issue is raised and
it requires formulation of controlling
principles, to guide the bench, the
bar and the public
4. The case is capable of repetition
While there may be no need for the court to
resolve the issue because of the supervening
event, if any of the issue would fall under those
4 (they are not mutually exclusive but individual
instances), the court will still resolve the issue.
Belgica vs. Ochoa- that is the case involving
PDAF. While the 2013 GAA (General
Appropriations Act) has already been passed
and implemented, though the issue has become
moot or academic already, the SC opted to
review it and said that this case falls under the 4
exceptions.
1. Is there a grave violation of the
Constitution?
Yes. There is an allegation of the
violation of the separation of powers, non-
delegation of legislative powers, issue on checks
and balances, and accountability, as well as
local autonomy.
2. Is the issue of exceptional character or a
paramount public interest?
Yes. The PDAF system, in which
significant amount of the funds are spent and
continue to be utilized, presents a situation of
exceptional character and matter of paramount
public interest.
3. Is there a need to formulate controlling
principles?
Yes. There is a practical need for an
objective ruling for the question on PDAF’s
constitutionality.
4. Is it capable of repetition?
Yes. The relevance of the issue does
not cease because the preparation, passage,
and implementation of the national budget is an
annual event. So even if the question is of past
appropriations, since the appropriations and
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budget is an annual thing, SC thought it would
be proper to resolve the issue even in the
present case technically is considered moot or
academic.
Now the third discussion on the requisite of
judicial review is LOCUS STANDI.
We have always understood Legal Standing.
Compared to your Civil Procedure, in private
suits, it is equivalent to Real- Party- in-Interest.
He is who has substantial interest or personal
stake on the outcome of the case. But in
constitutional cases, Legal Standing would still
be on the same characterization but does not
involve private rights but public rights. So the
damage and injury must be material to him
becase the act complained of directly affects
him. It must not be for somebody else’s right,
unless you fall under any of the exemptions.
Ordinarily, legal standing is given:
a. When the person can show that he
will personally suffer actual or
threatened injury because of the
questioned act.
b. The injury is clearly traceable to the
challenged action
c. The injury is likely to be redressed by
a favorable action
Those are the 3 conditions or requirements to
grant the party, legal standing and this is in the
concept of a CITIZEN SUIT, an ordinary citizen
would bring a constitutional question before the
court and these three must have to be satisfied.
Through the decisions of the SC, this has been
expanded to include among others:
1. TAXPAYERS SUIT – if the questioned
act involves expenditure of public funds.
If it has nothing to do with public funds,
the person filing the case as a taxpayer
will not be given the legal standing.
2. VOTERS’ SUIT – if there is a violation of
a right, of suffrage, meaning to run for
public office, or to be allowed to vote, on
a constitutional question, a voter may be
given legal standing
3. LEGISLATOR’S SUIT – if a law is
passed or a law is implemented and
executed by the executive and it violates
the prerogative of a member of
Congress, a member of Congress has a
direct interest over the outcome of the
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constitutional question raised. He is
given legal standing in the concept of a
legislators’ suit.
One of the more familiar exceptions to you is the
concept of INTER-GENERATIONAL
RESPONSIBILITY (IGR). The present
generation can sue on an issue of
constitutionality for the benefit of future
generation. Other than that, it should be for the
person’s direct injury.
The second would be the so-called DOCTRINE
OF TRANSCENDENTAL IMPORTANCE. Even
if he has no direct personal stake, even if
damages or injury is not personal, or material as
to him but because of the importance of the
issue, the Transcendental issue is at stake, a
person may be given legal standing.
DOCTRINE OF TRANSCENDENTAL
IMPORTANCE this requires that:
a. There is a public character of the
fund or asset involved
b. There is a clear case of
constitutional disregard
c. There is lack of any other direct
party with legal standing
As we have mentioned last night, if a question is
presented, do not apply the exemptions, unless
there are prior cases resolved. The rules on IGR
or Transcendental importance as exception to
the strict rule on legal standing must have to be
used when there are prior cases already
decided. Otherwise, we must have to dismiss
the petition because the petitioner has no legal
standing.
The final item with respect to your legal
standing, the case of LAMP vs. Secretary of
DBM, Dela Llana vs Chairperson, Calicto vs.
Aquino, Ideals vs. PISAM, Funa vs. Villar,
Capalla vs, Comelec, Chavez v. JBC, Imbong
vs. Ochoa (the RH Law), Araullo vs. Aquino
(on issue of DAP) and Funa vs. MECO, these
are the cases on legal standing.
Finally, the condition or requisite of VERY LIS
MOTA OF THE CASE.
Kalipunan ng Damayang Mahihirap vs.
Robredo 730 SCRA 322- SC had characterized
LIS MOTA to mean the cause of the suit or
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action.
What does that VERY LIS MOTA mean?
In ordinary understanding, VERY LIS MOTA
simply means the court cannot refuse to rule on
the constitutional question or the case cannot be
disposed of without the court ruling on the
constitutional issue raised.
If there are other means by which the case can
be disposed of. Like what we mentioned, if one
or some or all of the elements are missing, the
petition is dismissed. But if all 3 are present and
the court cannot avail of any process by which
the issue could be resolved, other than to
resolve the constitutional question, then that (the
constitutional question) is the very cause or root
of the case and therefore it is the very lis mota of
the case.
This case of Kalipunan also mentions that in
this case, prohibition and mandamus are not
proper petitions. While we mentioned earlier in
the case of Araullo, petitions under Rule 65 are
generally appropriate petition to raise
constitutional questions, but here the petitions
for prohibition and mandamus have not been
considered appropriate petitions since what was
sought to be questioned and to be enjoined do
not fall within category of the decisions or
orders or actions subject to petitions for
prohibition or mandamus.
CONCEPTS OF JUDICIAL REVIEW
3 THEORIES OR FUNCTIONS OF JUDICIAL
REVIEW
1. NEGATIVE OR CHECKING FUNCTION
When the court exercises the Checking
Functions, we understand that the court
declares the act Or law as
Unconstitutional. It behaves in a
negative function where there is a
declaration that the law is inconsistent
with the Constitution.
2. SYMBOLIC OR TEACHING FUNCTION
Symbolic Function has always been related to
mootness and the exceptions when the court will
decide a case even when it has already become
moot. It is because of the need for the court to
formulate principles to serve as guide for both of
the bench and the bar or generally the public.
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There is no benefit to the parties to the petition
because of a supervening event, but
nonetheless, so that there will be proper
principles laid down to guide future actions, the
court will opt to exercise its Symbolic Functions.
3. POSITIVE OR LEGITIMATING
FUNCTION
Legitimating or the Positive Function of the
judicial review puts to rest the issue of
constitutionality. When the law is raised based
on its constitutionality, and the court will dismiss
the petition, it will not resolve on the
Constitutional question, that law will remain to
be not unconstitutional, not because of a
positive ruling of the court but because of the
presumption of constitutionality.
If a similar petition is filed later where all the
requirements are present or existing, the court
should resolve the constitutional question. When
the court dismissed the petition without ruling on
the constitutional issue, there still hangs the
question of whether or not that law violates the
Constitution. But when the SC finally resolves
and declares the law in question as not
inconsistent with the constitution in the exercise
of its positive or legitimating function, at least for
the moment, the question of constitutionality is
settled.
We made mention of “at least or for the moment”
because there is this concept of RELATIVE
CONSTITUTIONALITY.
Central Bank Employees vs. BSP, when BSP
was created by a law, there is a provision there
which states that those employees of the BSP
with salary grade over 19 shall be exempt from
the application of the salary standardization law
(SSL). If the salary is SG 19 and below, it shall
be subjected to the provisions of the SSL.
Through the years, government financing
institutions (GFIS) have all been exempt from
the coverage of SSL. When this case was finally
brought to the SC in 2004, only the employees
of the Central Bank falling in the category of
GFIs “whose salary grade is 19 and below” have
been covered by the SSL. All the rest (of the
GFIs) have been receiving salary outside the
salary grade.
In this case, there is a question of WON the
provision in the CB is unconstitutional. The
respondent said that there was no declaration of
unconstitutionality before so it should remain to
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be not unconstitutional.
The SC said that under the DOCTRINE OF
RELATIVE CONSTITUTIONALITY, a law which
has not been previously declared as not
unconstitutional or which has been declared
before as not unconstitutional may be later
declared as unconstitutional because of altered
situations or change in the circumstances. As it
was, while the law creating BSP at the time, the
situation was that they belonged to the SSL, but
subsequent legislation exempted all other GFIs,
regardless of salary grade, from the coverage of
the SSL (except CB employees). The
circumstances have been altered and what may
have not been declared as unconstitutional
before could be declared as unconstitutional
today. So that provision has been declared as
unconstitutional.
In relation to POSITIVE OR LEGITIMATING
FUNCTIONS, while the court may have declared
it to be not unconstitutional at one point in time,
it does not mean that that should remain to be
the declaration thereafter. When circumstances
are altered or there is a change in the situation,
there may be a possibility that that law may be
declared unconstitutional later.
All courts can exercise judicial review and when
we say “all courts”, only those exercising judicial
power, as defined under Section 1 Article VIII –
Judicial Power in its Original context. The
Constitution has expanded that provision of
judicial power which is technically judicial
review. While lower courts have authority, they
must refuse, if they can, avoid ruling on the
constitutional question; but if it is required, they
have jurisdiction subject to the appellate power
of the SC. SC has the power to revise, reverse,
modify, and affirm such rulings or final orders of
the lower courts.
EFFECTS OF DECLARATION OF
UNCONSTITUTIONALITY
We all know that under Article 7 of the Civil
Code, when the courts declare a law to be
inconsistent with the Constitution, the law shall
be void and the Constitution shall prevail. Under
the traditional concept of the declaration of
unconstitutionality, an unconstitutional law is not
a source of any obligation, right, or duty. It
confers no right and affords no protection,
creates no office. It is inoperative. For all legal
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intents and purposes, it’s as if it has not been
created at all.
However, because of the concept of
OPERATIVE FACT, the SC as early as the
1971 Ruling of Serrano vda. de Agbayani vs.
PNP, as often been repeated in Araullo vs.
Aquino (DAP), that the period of time when the
law has been in effect, prior to the declaration of
unconstitutionality, the public must have acted in
obedience to the law. There may have been
legal rights, contracts may have been executed,
there has been obligations agreed on, and so for
any of those acts which were done validly prior
to the declaration of unconstitutionality, it shall
have to be given legal effect as well.
However the operative fact doctrine is a doctrine
used as a matter of equity and not a positive rule
of law. In the case of Cocofed vs. Republic, SC
categorically stated that it will not be applied as
an exception to the rule, otherwise SC will be
sending a wrong signal: That an act will be
justified even when based on an unconstitutional
provision.
It is only when rights are not violated that the
operative fact doctrine will be applied. But when
rights have been violated, like in the case of the
DAP, the operative fact doctrine shall not apply.
For those who knew from the beginning, the
authors and the implementers of the DAP, that it
was unconstitutional, they shall not benefit from
the operative fact doctrine. Again, it is a rule on
equity and not a positive rule.
One of the oldest cases there, showing that it
will not apply, is the case of Baldovino vs.
Alunan. This was a reorganization of the
Department of Tourism, where an executive
order was issued. The EO was subsequently
declared unconstitutional because of violation of
security of tenure of government employees.
The reorganization based on that was declared
to have not created any movement. Those who
have been eased out and all those who have
been promoted or demoted by reason of the
reorganization were all made to return to their
previous position because that EO was not
considered to have been written at all. Article 7
of the Civil Code will apply and not the operative
act doctrine.
POLITICAL QUESTIONS vs. JUSTICIABLE
QUESTIONS
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When the 1987, Article 8 Section 1, included
expressly the concept of judicial review in the
definition of judicial power. The question was
asked as to whether or not the concept of
political question has been obliterated.
POLITICAL QUESTION- a question which the
people in their sovereign capacity will have to
decide or to which full discretionary authority has
been delegated to the political branches of
government to decide, meaning the legislative
and executive branch.
These are questions which cannot be resolved
by the court because the court cannot impose its
interpretation on the wisdom on political
question or answers to political question. A
classic example is the concept of Election. You
have election laws. Normally, what we study in
Election Law would have to refer to the process
from registration to proclamation. But if it comes
to the vote of the people or the electorate, hardly
is there any law covering that because the
choice of the person is always a political
question. But as to whether the ERs were
canvassed correctly, WON there is proper
interpretation for the rules on the ballot, there
are rules for that. But when there is a question of
WON a losing candidate should be considered a
winner if the winning candidate is declared
disqualified, there always a bias in decision as to
whether the second proclaimed as the winner
because for all legal intents and purposes, he
was not voted as the winner. That's a classic
example of political question which the courts
cannot answer.
The first case decided by the SC on that matter
is the case of Oposa vs. Factoran- the SC
clarified that while judicial power as defined, as
has been expanded to include judicial review,
now in the Constitution, while judicial review has
seemingly been included in the 1987
Constitution, you must remember that judicial
review has been there for a long time all along. It
is an existing theory in the system. It may have
diminished what used to be believed to be
covered by political question doctrine. Meaning,
if there is a grave abuse of discretion amounting
to lack or excess of jurisdiction, no matter what
that act is, that can now be reviewed by the
court.
The inclusion now of the judicial review in the
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present Constitution, did not obliterate political
question but somehow diminished it because
courts can now actually decide on these
questions without issue, for so long as all the
conditions are present. Unlike before, there was
always a question of whether the court has
power. We go back to the old case of ANGARA
vs. ELECTORAL COMMISSION. Even then,
even if the political question doctrine has been
diminished, the SC has always maintained that if
the question or issue involves wisdom and policy
of either legislation or executive act, the court
cannot interfere. They are still considered as
political question.
Viduya vs. Romulo for example, the question of
whether the Philippine State or government
should file a claim with the Japanese
government for and in behalf of the comfort
women during the Japanese occupation here.
Should the Philippine government initiate the
filing of the case?
SC dismissed the petition and said, that is a
political question because it affects foreign
relations. Whether the Philippine government
should take the cudgels for these women, is not
a justiciable question. The Philippine
government has refused to take the case for
them to file any action with the Japanese
government. This was a petition for mandamus
and Romulo refused. When it comes to foreign
relations, that is a question of policy. The court
cannot impose upon the government or the
executive.
Same thing with legislation, the declaration of
State policies under Article II will have to be
considered when the legislative branch of
government enacts legislations and the
executive branch signs the bill into law. You
cannot use it as a source of a direct right to
compel Congress to enact a law on these
policies. If Congress decides to enact law, they
must have to be based on these policies. Until
then, if the Congress does not decide to enact
any law on the matter, the right of the people to
a balanced ecology shall be respected. Until
then, you cannot file a case to compel congress
to enact a law. If they do enact a law, then you
can question that the legislation is violative of
the constitution. The determination of what law
to enact, when, what to pass it, when to consider
it is still a political question.
You might have read in the news, that the
president 2 important legislation: the amended
Cabotage Law and the Anti-Monopoly Law. If
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Congress decides to enact a law, there can be
no court ruling compelling them to do otherwise.
So, though diminished, Political Question
Doctrine still exists in our system despite the
inclusion in the judicial review definition in the
Judicial Power provision of the1987 Constitution.
PHILIPPINES AS A STATE
Basic discussion here would remain with our
territorial sea, based on our concept of
archipelago. UNCLOS has defined
ARCHIPELAGO as “group of islands
surrounded by waters”. The subsection in the
UNCLOS pertaining to the baseline that, “all the
waters surrounding the baseline, connecting the
islands, regardless of the breadth and
dimension, shall be considered as internal
waters of the archipelago”. Waters within the
baseline are considered internal waters
regardless of breadth and dimension. The
modern understanding of archipelago is based
on the body of water and not on the islands.
The only question that is probably and has been
asked in the bar about territory is about what
constitutes Philippine territory normally related to
criminal jurisdiction. Problem is given like, 12
fishermen are arrested as reported in the news
and they were convicted for having poached in
the Tubattaha Reef. So question is if they were
caught poaching from a certain number of miles,
can they be charged in Philippine Courts under
the fisheries code. So mostly, the question on
territory will be on whether the principle in
criminal law on territoriality. “Can they be
charged under our criminal law?” So if you are
within the 12 nautical miles, even if it is still part
of the EEZ, you are technically within Philippine
territory. Outside of that, Philippine laws do not
apply. What apply would be the rights and
obligations claimable under the UNCLOS on
“rightful ownership” or “claim of EEZ”. In the
UNCLOS, there are no penal sanctions, of
course.
The outline mentions of 3 laws on baselines. 2
laws on base points, one of these on straight
baseline method. From a certain point based on
the lowest watermark or base points and all
base points surrounding archipelago shall be
connected by a straight base line and all the
waters inside the baseline are internal waters.
From the baseline, there shall be 12 nautical
miles of the Territorial sea. This is an
improvement from what we know before as the
cannon shot rule. From the same baseline we
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measure the 200-mile exclusive economic zone
(EEZ). That is where most of the conflict comes
about. The first 12 NM is still Philippine territory.
Most questions are asked regarding activities
done within the 12 NM. If there is a crime there,
then it shall be cognizable by the Philippine
courts. Outside the 12 NM, what is reserved to
the State would be exclusive economic
exploitation, exploration, or similar related
activities. Any activity not covered by that are
allowed: flight, overflight. No permission is
required from the state to which it pertains
because that is not technically part of our
territory. That is outside of the first 12 NM.
Outside of the first 12, you are no longer within
the Philippine territory.
July 24, 2015- James
CITIZENSHIP
The most asked in the bar exams would be on
citizenship, most especially 2016 when it is an
election year because of that concept of natural-
born citizens.
WHO ARE CITIZENS OF THE PHILIPPINES?
The first law which provided for the definition of
who are citizens of the Philippines would be
Philippine Bill of 1902 when the Philippines was
sold by Spain to the US under the Treaty of
Paris in 1898. There was no concept of who the
Filipino citizens are, so the Americans came up
with a Philippine Bill of 1902 and they defined
who are the citizens of the Philippines.
 Those who were native
inhabitants;
 All inhabitants of the Philippine
Islands from April 11, 1899, who
resided in the Islands and who
opted not to preserve their
allegiance to the crown of Spain;
and
 Their children born subsequent
thereto, were considered citizens
of the Philippine Islands.
It therefore includes what we know as Insulares
or Spanish-born insulars in the countries
colonized by Spain like the Philippines or those
Spanish citizens whom we refer to as
Peninsulares having been born in Spain, Spain
being part of the Aegean peninsula. If they are in
the Philippines as of April 11, 1891 up to the cut-
off date of 1899, they are all considered as
citizens of the Philippines.
While we adhere to the mode of acquiring
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citizenship based on blood relations or jus
sanguinis, for that period of time up to 1899, SC
decisions have been rendered applying the law
on jus soli or acquiring citizenship by place of
birth because of the definition of who are
citizens of the Philippines under the Philippine
Bill of 1902. So, for a limited period of time, even
if you are a foreign national, being Spanish by
citizenship at birth, but if you are here, you are
covered by the definition under Phil. Bill of 1902,
you are considered a citizen of the Philippines
based on place of birth.
Citizens of the Philippines under the 1935
Constitution:
1. Those who are citizens of the
Philippines at the time of the adoption of
this Constitution;
2. Those born in the Philippines of foreign
parents who, before the adoption of this
Constitution, had been elected to public
office in the Philippines;
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;
and
5. Those who are naturalized in
accordance with law.
1973 Constitution:
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 who elect Philippine citizenship
pursuant to the provisions of the 1935
Constitution;
4. Those who are naturalized in
accordance with law.
1987 Constitution:
1. Those who are citizens of the
Philippines at the time of the adoption of
this Constitution;
2. Those whose fathers or mothers are
citizens of the Philippines;
3. Those born before January 17,1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority; and
4. Those who are naturalized in
accordance with law.
That is why in the 1935 Constitution where the
first listing of who are considered as citizens of
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the Philippines, it included those who are
Spanish citizens who at the time of the adoption
of the 1935 Constitution were already elected to
public office. So, if you are a Spanish subject or
Spanish national but you were, at the time of the
adoption of the ‘35 Constitution, already
occupying elective positions, you are considered
to be citizens of the Philippines.
Those whose fathers are citizens of the
Philippines and those whose mothers are
citizens of the Philippines but fathers are
foreigners who elected Filipino citizenship upon
reaching the age of majority shall be considered
citizens of the Philippines. And the last category
would be those who are naturalized in
accordance with law, which brings in the
concept that there are only two types of
citizenship in the Philippines—either you are
natural-born or naturalized.
The problem there is with respect to children
born before or under the 1935 but before the
1973 constitution of a Filipino mother married to
a foreigner father. There is no problem if the
parents are not married to each other. If the
child is illegitimate and the father is a Filipino
and the mother a foreigner, the child is
automatically a Filipino because under the ‘35, if
the father is a Filipino, regardless of whether the
Filipino father/husband is married to a foreigner
mother/wife, automatically the child is Filipino. If
the mother is Filipino and she is not married to
the foreigner father/husband, the child is also
considered Filipino because of the intent to grant
the child the benefit of becoming a Filipino
citizen. Anyway, as provided in the Civil Code,
the status, residence and even the custody and
parental authority of an illegitimate child will
always be with or that of the mother. In which
case, if there is no marriage between the Filipino
mother and the foreigner father, the child will be
considered as a Filipino citizen. The problem is,
when the Filipino mother and foreigner father
are married. So, if they are married, under the
‘35 constitution, the child must have to elect
Philippine citizenship upon reaching the age of
majority. There are basic questions when or how
the mother’s citizenship is affected by the
marriage to the foreigner husband. There are
two modes by which the Filipino mother will
become that of the foreigner husband’s
citizenship:
1. By operation of law; and
2. By the mother applying for naturalization
in the foreign country.
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If the mother is deemed to have acquired the
citizenship of the foreigner husband, child born
of that marriage will always have the right to
choose or elect Philippine citizenship upon
reaching the age of majority because the fact of
losing her citizenship to become a foreigner is
by operation of law, the mere fact of marriage.
But if the mother has applied for naturalization in
the country of the foreigner husband, the
question to be asked is: is there a Filipino
mother when the child was conceived? And
moreover, if there is still a Filipino mother when
the child was at least conceived, even if the child
was born when there is no more Filipino mother
to talk about because she has been naturalized,
the child will still have the right to elect or
choose Philippine citizenship upon reaching the
age of majority. Thus, if the mother, at the time
of conception, has already been naturalized fully
in the country of the foreigner husband, there is
no more Filipino mother to talk about and the
child born of that marriage will not fall into the
category of a child born of a Filipino mother and
a foreigner in which case, the child cannot elect
Philippine citizenship upon reaching the age of
majority.
Now, assuming that the child can elect under
that category, your law on election is
Commonwealth Act No. 625. There are basically
three simple things or acts that the child must
have to do upon reaching the age of majority or
within a reasonable time therefrom to have a
valid election:
1. The execution of a sworn statement or
affidavit of the fact of election;
2. The execution or signing of the oath of
allegiance to the Philippine Constitution;
and
3. The subsequent registration of these
documents with the local civil registry,
where the birth of the child, technically,
has been first registered.
Ma vs. Fernandez- That case lacks the
registration of the two documents required, and
the SC said that the children are still considered
to have validly elected Filipino citizenship
despite the lack of registration because they
have actually, substantially complied with the
two formalities which is the sworn election and
the oath of allegiance; and the fact that there
was no registration does not erase the fact that
they have validly elected to choose Phil.
Citizenship. The SC distinguished the basis for
election, and the basis for the election is the
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citizenship of the mother, which is the
permanent thing. What the registration does is
merely a confirmation of such substantial acts of
election and the fact that there was failure to
register, which was untraceable to them, should
not deny them of that right. And more so, it
cannot erase the fact that their mother is a
Filipino citizen.
In Re: Ching- mentions the idea of what
constitutes reasonable time. And based on the
1958 opinion of the DOJ, reasonable time to
elect must fall within 3 years. In that case,
another previous case was mentioned where the
person has elected after 7 years and the SC
said that should not fall within reasonable time.
In the case of Ching, it took him 14 years before
he elected Phil. Citizenship. SC said there was
no valid election within a reasonable time.
Vilando vs. HRET- the issue was whether
Jocelyn Limkaichong should have elected upon
reaching the age of majority. One of the very
first cases that were decided involving the same
issue as that of Limkaichong was the case of
Ong vs HRET. This was the first case decided
under the ‘87 Constitution when the issue of
qualification as a natural-born was first raised. In
that case of Ong, as in the case of Limkaichong,
Ong was born of a Filipino mother married to a
Chinese father. When he was 9 years of age, his
father was granted naturalized status. The father
applied for naturalization and eventually granted
and it was fully granted when he was 9. So,
when he reached 21 years of age, Mr. Ong
never filed any election or oath of allegiance.
The question is, had he validly elected Filipino
citizenship? The SC said there was no need
because he was already a Filipino citizen when
he reached the age of majority. Same thing with
Limkaichong in the case of Vilando. Jocelyn
Limkaichong was born sometime in November
1959. After her Chinese father was granted
naturalized status in September 1959. So, at the
time she was born, she was born of a Filipino
father. The SC made a statement there,
“regardless of how the father obtained Filipino
citizenship (either naturalized or natural-born),
the fact is that she was born of a Filipino father
so, there was no need for her to elect Filipino
citizenship upon reaching the age of majority
because if you are born under the ‘35
constitution of a Filipino father, automatically you
would become a Filipino citizen.
The problem with that proposition is that it does
not admit of the effects of naturalization, which
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we will discuss later on. Hold that thought for a
moment and we will go back to that when we
reach the matter on naturalization.
Now, the matter is compounded because the ‘87
constitution requires, as qualification to national
offices, natural-born citizenship. Your outline
lists down who are required to be natural-born.
There are 8:
1. President (Art. VII, Sec. 2)
2. Vice President (Art. VII, Sec. 3)
3. Members of Congress (Art. VI, Secs. 3
& 6)
4. Justices of the SC and Lower Collegiate
Courts (Art. VIII, Sec. 8)
5. Ombudsman and Deputies (Art. XI, Sec.
8)
6. Constitutional Commission Members
(Art. IX-B, C, D, Sec. 1(1))
7. Central Monetary Authority Members
(Art. XII, Sec. 20)
8. Commission on Human Rights Members
(Art. XIII, Sec. 17(2))
The first definition of who are natural-born was
first provided in the 1973 Constitution. It simply
states that, “those who are natural-born are
those who are citizens from birth WITHOUT
performing an act to perfect or acquire their
citizenship.” There are two operative phrases
there:
1. The fact of birth and the fact of
citizenship; and
2. The non-performance of an act to
perfect or acquire Filipino citizenship.
The first phrase mentions “from birth”. Does that
phrase refer to the fact of citizenship or to the
fact that the person must not perform an act to
perfect or acquire citizenship? That is asked
because in the ‘73 Constitution, there was no
mention of those born of Filipino mothers and
foreigner fathers under the ‘35 who elect
Philippine citizenship upon reaching the age of
majority. If a person is born under that
circumstance in the ‘35, but has elected Filipino
citizenship because he has reached the age of
majority, still under the ‘35 constitution, there
would be no question that he would fall as
natural-born simply because there was no
definition of who are natural-born when he
elected under the ‘35. But the same type of kid
or child who elected under the ‘73 constitution
may have to face the difficult task of falling into
that definition because he may be considered a
natural-born having to perform an act to perfect
or acquire citizenship. And what is that act? The
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act of electing Filipino citizenship. Thus, we
have mentioned that in the ‘87 constitution, that
was clarified that even those children born of
that circumstance in the ‘35 constitution are still
considered natural-born under the expanded
definition of the 1987 constitution on who are
considered natural-born.
So, the phrase “from birth” should refer to the
fact of citizenship. Although in the case of those
children born of Filipino mothers and foreigner
fathers who are legally married to each other, do
not have full Filipino citizenship during minority
because they take the foreign citizenship of their
father. But if they elect Philippine citizenship
upon reaching the age of majority, the law
considers them to be Filipino citizens and
therefore, they are considered natural-born.
Republic vs. Sagun mentions of the lack of any
proceedings in our Rules of Court in our
jurisdiction for a declaration of your citizenship
independent of a case filed to question your
citizenship. Differently stated, you can’t go to
court to file a petition to declare you a Filipino
citizen, unless you file for naturalization. So if
your status has not been placed on issue, you
cannot voluntary file a petition for you to be
declared a Filipino citizen.
NATURALIZED CITIZENS
Who are naturalized Filipinos? Your outline
mentions of your law there:
1. Judicial naturalization under
Commonwealth Act No. 473; and
2. Administrative naturalization under
Republic Act 9139.
In judicial naturalization, you remember that the
substantive requirements would be ARC-PEN
(age, residency, character, property, education
and not otherwise disqualified by law). That is
the same requirement in administrative
naturalization. The difference would be in the
age.
CA 473 SUBSTANTIVE REQUIREMENTS:
1. Age- the original age requirement is 21
but it was reduced to 18.
2. Residency- the requirement is that you
must have been a resident of the
Philippines for at least 10 years, which
can be lowered to 5 years under special
circumstances. A foreigner male, if
married to a Filipino woman, is
automatically qualified to avail of the 5-
year residency.
If a foreigner woman is married to a
Filipino male, what should happen? The
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foreigner woman automatically becomes
a Filipino citizen without need of any
judicial proceedings. Our legislators
then who were mostly males would want
the likes of Katy Perry to come, but they
do not want the likes of Brad Pitt.
That is exactly the case of Republic v.
Batuigas. The respondent here was
married, is a Chinese citizen born in the
Philippines of Chinese parents. She
married a Filipino citizen by the family
name of Batuigas. And so, she applied
to become a Filipino citizen based on
CA 473 where the law says that all you
have to do if you’re a foreigner woman
is to prove that you are not disqualified.
You do not have to prove that you are
qualified. Only two things:
 That you are married to a
Filipino male; and
 You are not disqualified under
the law.
But the DOJ did not grant it for lack of
proof that she was really married to a
Filipino male and then the husband
died. So, she filed a “petition for
naturalization” under CA 473 to be
declared a Filipino citizen—she being a
foreigner and having been married to a
Filipino male and under the law is not
disqualified. While the petition should
not have been proper, the SC said it is
proper in this case because she had no
other option under the law. She should
not have gone through a naturalization
proceeding, but because the state did
not grant her what the law ought to have
granted her, this petition is proper to
declare her as a Filipino citizen.
3. Character- you must prove that you are
of a good moral character, you have
embraced Filipino values, customs and
traditions and that you have mingled
socially with Filipinos. In the case of Go
vs. Republic, the SC said that in
naturalization proceedings, the
witnesses required to prove that the
applicant petitioner is of good moral
character must also be credible
witnesses and they are referred to as
vouching witnesses. SC made mention
that to be credible witnesses, they must
have only proved that they do not have
any criminal record, they don’t have any
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criminal case pending against them, but
they must have to prove that they are
responsible members of society. That
for the period of time of residency of
petitioner-applicant that they have
known the latter to be of such good
moral character. The testimonies of the
vouching witnesses are important for the
court to determine whether they have
good moral character.
4. Property- since this is an old law, the
requirement is P5,000 worth of property.
5. Education- requires that your minor
children, for the period of residency
here, must have been enrolled in
schools which are not exclusive to
foreigners and they are, among others,
teaching the subjects of Philippine
government, constitution, history and
the like.
6. Not otherwise disqualified by law- you
have plenty there:
 Persons opposed to organize
government or affiliated with any
association or group of persons
who uphold and teach doctrines
opposing all organized
governments;
 Persons defending or teaching
the necessity or propriety of
violence, personal assault, or
assassination for the success
and predominance of their
ideas;
 Polygamists or believers in the
practice of polygamy;
 Persons convicted of crimes
involving moral turpitude;
 Persons suffering from mental
alienation or incurable
contagious diseases;
 Persons who, during the period
of their residence in the
Philippines, have NOT mingled
socially with the Filipinos, or
who have not evinced a sincere
desire to learn and embrace the
customs, traditions, and ideals
of the Filipinos;
 Citizens or subjects of nations
with whom the Philippines is at
war, during the period of such
war; and
 Citizens or subjects of a foreign
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country whose laws do not grant
Filipinos the right to become
naturalized citizens or subjects
thereof.
In CA 473, the presumption is that it is the
father/husband who applies for naturalization
because once the naturalization is granted, the
grant will benefit the foreigner wife if the wife is a
foreigner, as well as the children.
PROCEDURAL REQUIREMENTS:
1. There must be a filing of a declaration of
intention at least one (1) year before the
filing of the petition.
 The one-year period is
mandatory. That was part of the
ruling in Republic vs. Li Ching
Chung when the petition was
filed 7 months after the filing of
the declaration of the intention.
 The purpose of the 1-year
period is to give the government
or the state sufficient time to
investigate and verify the
qualifications and none of the
disqualifications of the applicant
up to the time he filed the
petition.
 It is filed with the OSG because
the Sol. Gen. is the lawyer of
the RP. Your office of the
Government Corporate Counsel
is the lawyer of GOCCs but not
of the RP. As lawyer of the
state, the OSG is directed or
mandated to conduct
verifications as to the
qualifications of the applicant
and that he does not possess
any of the disqualifications
under the law.
 If the said period is violated, the
grant for naturalization is void
(as held in this case of Li Ching
Chung).
 Once the petition is filed outside
of the 1-year period from the
filing of the declaration of
intention, there shall be the
usual publication, notices and it
will be heard for trial after
completion of the period for
publication.
2. After that, there will be filing of the
petition.
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3. Hearing, and then decision.
4. If the petition is granted, the decision will
not become automatically effective. It
will have to observe the 2-year waiting
period. In fact, if you have read a
decision in naturalization proceedings, it
is indicated there what the
petitioner/applicant can and cannot do
within the 2-year period. The purpose of
said period is for the state to determine
again whether the applicant continues to
have all the qualifications and none of
the disqualifications. And travel abroad
is sometimes complicated because one
of the grounds for naturalization is if the
applicant returns to his country of origin
and stays there for 1 year, that is a
prima facie presumption that he intends
to be a resident of that country of origin.
If it’s in any other country and he stays
there for 2 years that is also a
disputable presumption, which is a
ground for de-naturalization.
5. Once the two-year period is completed,
there is a summary hearing to determine
the qualifications and none of the
disqualifications. The decision becomes
final.
6. The ACR is cancelled and he will be
given his Certificate of Naturalization.
That’s one of the issues raised in
Vilando because when Limkaichong
was born several months after the grant
of citizenship to her father, the RP
argued that the grant of citizenship to
the father was not yet final because
there’s a 2-year waiting period. Since
she was born within the 2-year waiting
period, she was not yet born of a Filipino
father because ordinarily under CA 473,
the applicant becomes a Filipino citizen
after the issuance of a Certificate of
Naturalization, which comes after the
hearing after the 2-year waiting period.
The order was issued September, she
was born in November of the same
year. There was no Filipino father to talk
about. But the SC said that is not for the
HRET to decide. It is a collateral matter,
which cannot be attacked in a protest
case before the ET.
Now, if the wife is foreigner, we all know that the
wife automatically becomes a Filipino as well,
deriving the citizenship granted to the
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father/husband/applicant, which is that of a
naturalized Filipino. So, the question is, is the
mother naturalized or natural born? Since the
mother is a foreigner, she is naturalized. What
about the minor children? Children of majority
age are not affected. But minor children, there’s
a difference in treatment:
1. If the minor children are born in the
Philippines and are here during the
grant of naturalization, the children
automatically becomes a Filipino. Is the
child naturalized or natural born?
2. If the child is born outside the
Philippines but at the time of the grant,
the child is residing in the Philippines,
the child becomes a Filipino. Is the child
naturalized or natural born?
3. Those children born outside and are
outside of the country when the
father/husband/applicant was
naturalized. Those children will only
become Filipino citizens when they
reach the age of majority if they reside
in the Philippines.
4. Children born AFTER the grant of
naturalization to the father, they are
considered Filipino citizens because
they are now born of a Filipino father.
Question: Are these children natural born or
naturalized?
I asked you to hold the thought before on the
other case because if a child is born of
naturalized parents after they have become
naturalized, then they are natural-born citizens
because they are from birth they are citizens.
But if the father is a foreigner, the mother is a
foreigner, the father has been naturalized, the
mother derives it, and the child, also a foreigner
originally, becomes a Filipino. The question is, is
the child considered natural born? Because the
definition again is that natural born are those
citizens from birth without having to perform an
act to perfect or acquire citizenship. Yes, the first
three categories of children have not performed
an act to perform or acquire because it is only
their father who applied for naturalization. They
were minors, they were not doing anything to
acquire or perfect their citizenship. But are they
natural born? The answer is they are NOT
NATURAL BORN because they are NOT
citizens from birth. Only those children born of
those originally foreigner parents who were born
after the grant of naturalization would be
considered natural born because they are
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citizens from birth. So, only children belonging to
the fourth category are natural born.
So imagine if Lebron James and wife would
come over, decide to live in the Philippines and
apply for naturalization, they have minor
children, would their children be considered
natural born? Their children would never be
considered natural born because they are not
citizens from birth. People have this
misconception or wrong notion that if a child is a
minor and acquires or derives the citizenship of
the father foreigner that the child becomes
natural born because he did not perform an act
to acquire or perfect his or her citizenship.
Again, the phrase “from birth” emphasizes the
fact of citizenship, not the non-performance of
act to perfect or acquire citizenship because as
you all know, under the most recent law, RA
9225, if you’re natural born and lost it by
naturalization in a foreign country, you re-
acquire it under 9225, what would you be after
the acquisition? Would you be naturalized or
natural born? You would still be natural born
because what you re-acquired is your former
status of citizenship. If you were formerly natural
born, you have lost it, you did an act to re-
acquire it, even if you performed an act, the law
considers you to have re-acquired your original
status which is natural born.
In RA 9139, this applies only to those who were
born in the country as foreigners.
SUBSTANTIVE REQUIREMENTS:
1. Age- applicant must be of legal age.
2. Residency- the difference here is there
is no declaration of intention required
because the residency requirement
must be SINCE BIRTH. You must have
been born here and you must have
been residing here since birth.
3. Character- good moral character.
4. Property- P5,000 worth of property,
except if you are engaged in some form
of gainful livelihood.
5. Education- this would be different also
because it is applicable to you, the
applicant and your minor children. In
other words, from birth, you must have
studied in Philippine schools and these
schools must have to teach Phil.
Government, history and constitution. In
473 (judicial naturalization), only the
minor children because the presumption
of law when you came here, either you
have already studied or too old to study.
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So, you must have been schooled in
primary and secondary school. RA 9139
does not require you to have gone
through college. HS graduate pwede na.
6. Not otherwise disqualified by law-
almost the same as CA 473.
PROCEDURAL REQUIREMENTS:
1. There is no declaration of intention;
2. The petition to be admitted as Philippine
citizen shall be filed with the Special
Commission on Naturalization, which is
with the DOJ;
3. There is no trial or hearing. It is just an
administrative determination;
4. After which, you will be issued your
Certificate of Naturalization paying all
the fees.
LOSS AND REACQUISITION OF CITIZENSHIP
A. LOSS OF CITIZENSHIP
Under CA 63, the following are the grounds for
loss of citizenship:
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 21 years
of age or more;
4. By rendering services to, or accepting
commission in, the armed forces of a
foreign country;
5. By cancellation 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 then in force in her husband’s
country, she acquires his nationality.
Now, the only thing to remember there is the #7
ground, which is marriage by a Filipino woman
to a foreigner, is only good under the ‘35
constitution. In the ‘73 and ‘87, it is expressly
provided for in the constitution that mere
marriage of a Filipino woman to a foreigner
husband shall NOT deem her to have lost her
Philippine citizenship. So, that ground is no
longer there.
The first three grounds are the most common
(naturalization, express renunciation, oath of
allegiance to a foreign country). All the rest are
not so common.
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B. REACQUISITION OR REPATRIATION
Reacquisition can either be by:
1. Naturalization proceedings
2. By direct act of Congress- you know,
Congress can enact a law to grant a
person naturalized status. It can also be
made or used to grant a person to re-
acquire lost Philippine citizenship.
3. Repatriation- the most common. There
are 3 laws:
i. PD 725, this was applied to
Filipino women who lost their
citizenship by reason of
marriage and deserters in times
of war.
ii. RA 8171 (October 23, 1995),
this was a law on repatriation
which extended to two types of
citizens:
 Natural born Filipino women
who by reason of marriage to
foreigners have lost their
citizenship to become
naturalized in a foreign country;
and
 Those natural born Filipino
citizen who, by reason of
political or economic reasons,
were forced to be naturalized
elsewhere. This was the result
of a declaration of martial law
before. There were a lot of
people persecuted and so they
left the Philippines and to
validate their stay in the foreign
country, they were “forced” to
become citizens of that foreign
country where they took
residence. And to allow them to
be repatriated because they
were just “forced” to be
naturalized therein, they are
allowed to reacquire under
8171.
iii. RA 9225, this law is both
prospective and “after the
fact(?)”. If you are going to lose
your citizenship by
naturalization in a foreign
country, you be a natural born
citizen, you can avail of RA 922
in order to re-take your Filipino
citizenship (natural born status)
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despite the intended
naturalization in a foreign
country. Or if you have already
been naturalized, you can re-
acquire it under the same law
and just comply with the
requirement. While the law
mentions of mere taking of an
oath, the IRR require you to file
an application/ petition. It’s just
a form you need to fill up to
indicate that you are a former
natural born, the entries of your
parents’ fact of birth, place of
birth, and your naturalized
status now will have to be
indicated there. This is verified
and filed and determined
administratively after payment of
fees. If you fall into the category,
you will be required to take an
oath which shall be registered
as well, and thereafter issued
your identification certificate that
you have been considered
again as a Filipino citizen.
There are special requirements with respect to
the exercise of political rights. Civil rights, no
problem. You are restored to all your civil rights.
Since you are a Filipino citizen again, you can
now own real property, which you were not
allowed to when you were no longer a Filipino.
However, in the exercise of political rights,
you’re supposed to execute a sworn
renunciation of any and all foreign citizenships
if you are to run for an ELECTIVE POSITION. If
you were to be APPOINTED to a public office,
you would have to execute a sworn statement
renunciating any and all foreign allegiances.
You can serve therefore in an appointive office
even if you are a dual-citizen. What the law
requires is that you are owing allegiance only to
the Philippines.
In case you are serving the armed forces of a
foreign government of which you are a citizen of
or you are occupying a public office in that
foreign government, you are not allowed to
exercise your right of suffrage here in the
Philippines. If you are only to elect or exercise
your right to vote and you are overseas and
having re-acquired it (your natural born status)
you can do so if you fall within the classified
overseas Filipino residents under the Overseas
Voters Act (?).
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Sobejano-Condon vs. Comelec involves the
requirement of sworn renunciation of any and all
citizenship. If you are running for an elective
public office, the renunciation must be sworn to.
Petitioner here failed to have that renunciation
verified or subscribed before an oath-
administering officer. The SC did not consider
that as a valid renunciation.
The valid renunciation was first established in
earlier cases, one of which is the case of Lopez
vs. Comelec. SC required that there must be
sworn renunciation of any and all other foreign
citizenships because dual-citizenship is a
ground for disqualification for elective public
office.
Maquiling vs. Comelec- despite the availment
of RA 9225, there’s a sworn renunciation of his
US citizenship prior to the grant of the
identification certificate, the candidate traveled
to the US several times using his American
passport. There was an issue of whether he is
qualified because of the fact that he represented
himself to be an American citizen.
Written by CJ Sereno, “the fact that he
represented himself to be an American citizen
by using his American passports in those 3
travels abroad prior to the issuance of the
identification certificate is deemed a revocation
of his sworn renunciation.” Some media reports
came out and said he is disqualified because he
is not a Filipino citizen. The SC clearly ruled that
he is also a Filipino citizen. He is however, also
an American citizen. Meaning, he is of dual-
citizenship. The revocation is not on his effective
reacquisition of Filipino citizenship; the
revocation is only on the sworn renunciation. So,
it is as if he has not renounced his American
citizenship and therefore, he is of dual-
citizenship and is thus disqualified under the
law.
July 28, 2015- Ces
DUAL ALLEGIANCE AND DUAL CITIZENSHIP
Valles1, Mercado v Manzano - the concept of
dual allegiance under Sec 5 of Art. IV in the
constitution (dual allegiance is inimical to the
national interest xxx) is the meaning of the
disqualification of dual citizens under the LGC.
But please take note that in those decisions, RA
9225 has not yet been promulgated, and in
those cases, the fact that a person has dual
citizenship was based on the application of two
1
337 SCRA 543 (2000)
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laws making him a citizen of the Philippines and
that of another country.
If you remember, in the 1960 Convention on
Nationality, the basic premise is that, it is for
each state to determine who are its citizens. So
in the context of Philippine law, the question to
be answered is that: is a person a citizen of the
Philippines or not? It is not for our laws or the
courts to determine: if he is not Filipino, what is
his nationality. Because we only apply Philippine
laws as to the issue or question of the
citizenship of a person. So that by reason of the
application of two laws due to mixed marriages;
for example, a Filipino woman married to a
foreigner and by the laws of the country of the
foreigner spouse, the Filipino becomes a citizen
of a foreign country, or a child born of that
marriage, or a child born of that marriage or
even of Filipino couple but in a country which
follows the rule on jus soli. Involuntarily, those
individuals become dual citizens. They are
citizens of the Philippines as well as that of the
foreign country without applying for
naturalization.
So that in the former ruling, which are still good
law today, if that kind of person runs for public
office, and in the same COC (which is sworn),
declares that he owes allegiance only to the
Philippines, that is considered to be an express
renunciation of his foreign allegiances which
under Sec 5 of Art. IV, is inimical if he has dual
allegiance.
That's why in those two cases (Valles and
Mercado), the SC said that the dual citizenship
disqualification in the LGC does not apply to
them because it should be dual allegiance.
Sworn renunciation in the COC is sufficient to
make him only owing allegiance to the Phils.
Again, because of the fact that he is dual citizen
is involuntary on his part.
Unlike in 9225, as in the case of Jacot v Dal,
Lopez v COMELEC, the SC said that because
of 9225, there is now a specific requirement that
there must have to be a separate sworn
renunciation of foreign citizenship. So that the
sworn renunciation that is found in the COC will
not be sufficient because that is renunciation of
foreign allegiances. RA 9225 applies specifically
to situations where a natural-born Filipino has
lost his Filipino citizenship because of
naturalization abroad and has reacquired it
under 9225, he is considered dual citizen even
under Phil laws. And so under Sec 5 (par 2) of
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9225, he must have to execute a sworn
renunciation of any and all foreign citizenship. In
that context, the dual citizenship provision in the
LGC is to be interpreted to mean DUAL
CITIZENSHIP literally, and not dual allegiance
as in the case of Valles and Mercado.
Allegiance is voluntary on the part of the person
while citizenship may be involuntary as in those
3 situations. So a person may be a Filipino
citizen solely but may have allegiances other
than in the Philippines. And it does not mean
that if a person has dual citizenship, that he has
dual allegiances also because like in the cases
of Mercado and Valles, involuntarily, a Filipino
may also be considered a citizen of another
country even if he does not owe allegiance to
that foreign country.
SOVEREIGNTY
SOVEREIGN IMMUNITY
BAR: What is the Royal Prerogative of
Dishonesty? It is a state immunity of a foreign
state claiming immunity in the Philippines. It was
used by the Phils SC in the case where the US
govt was sued in the Phils and it claimed
immunity from suit. The SC used the phrase
Royal Prerogative of Dishonesty.
State immunity is not provided for in the
Constitution. The phrase under Art 16 Sec 3
(The State may not be sued without its consent),
is a limitation on State Immunity. As long as the
State exists, it automatically is immune from suit
for two reasons:
a. Positivist theory: There can be no legal right
against the state or the authority that
makes the laws on which all rights
depend. Holmes in
Kawananakoa v Polyblank. The state is
not suable for practical consideration
and based on the theory that there is no
violation of right against the state which
makes the laws for which the rights
commenced.
b. Sociological theory: If the State is amenable
to suits, all its time would be spent
defending itself from suits and this
would prevent it from performing its
other functions. Republic v Villasor, 54
SCRA 8. For practical considerations,
the state will have to be immune from
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suit for it not to be bombarded with
cases.
The practical consideration there is, if the state
is not immune from suit, at the slightest
provocation, people will sue anybody
including the state and the state may
have to spend all its rights and
resources to defend itself. In which
case, public service and governance will
be affected.
The Constitution grants a limitation that if there
is consent, the state can be sued. State
immunity can only be availed of when it is clearly
a suit against the state.
When is a Suit against the state? 3 the concept of public funds in the public
situations:
. a) When the republic is sued by name (Ex.
Juan v RP)
. b) When an UNincorporated government
entity is sued
. -because if incorporated, it totally takes that
away from the concept of State
immunity because it becomes an entity
on its own. Ex. GOCCS (with or without
original charter), if it is INcorporated,
state immunity does not apply.
. c) If a public officer is sued in his official
capacity.
- If a public officer is sued due to abuse of
authority, acting without jurisdiction, or if there
was malice on his part, it will no longer be the
responsibility of the State. Liability pertains to
the public officer.
The common denominator of these three types
of cases would be that in case of an adverse
ruling, it would mean that there would be
financial liability on the part of the state,
requiring it to appropriate sums of money from
the public treasury. If there is no requirement on
the state to appropriate money from the
treasury, that case may not fall under the
concept of state immunity.
Consent can either be express or implied.
Express consent is only through a statute; there
can be no other way. It cannot be by contract,
express declaration of a president. No amount of
public declaration, even by a President, can
result to express consent. And so, it is only by
the act of congress, because waiver of immunity
is actually a diminution of the state's authority
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and therefore it can only be given away by
congress through a statute.
ACT 3083 (still a good law) - it is an act
providing for consent for the state to be sued on
any money claim arising from contract, express
or implied. So if your claim against the
government is a money claim arising from
contract (express or implied), you can sue via
ACT 3083.
Incorporation of GOCCs - because of the
incorporation of that entity, it takes that away
from the concept of a state in state immunity. It
will also take away the funds of the GOCC from
treasury. Yes, their moneys are public funds but
they are not in the national treasury. They are
deposited in GFIs as required by law and they
are not subject to appropriation whenever they
are taken. They are just withdrawn, and need
not go through the appropriations in congress.
Implied consent - when the govt enters into a
business contract. In US v. Ginto and
companion cases, these were cases involving
US officers in the US facilities here in the Phils.,
sued by Filipinos over some acts. One was for
employment contract over a cook who was fired
for pouring urine in the soup stock, so he filed
for illegal dismissal with the NLRC. The US
officer, as a public officer, claimed immunity by
saying that the US government has not
consented. The SC mentioned here the Royal
Prerogative of Dishonesty, why a foreign
government can claim immunity from here. As
you remember, when foreign government or
state claims immunity in the Phils, it is not about
the general concept of state immunity, as used
by the Phils as a state. It is used by a foreign
state claiming exception from jurisdiction in the
Phils. because of the doctrine of incorporation. It
is not section 3 of Art XVI because that refers to
the Phil state. Under Art 2 on the Doctrine of
Incorporation, generally accepted principles of
international law are deemed incorporated as
forming part of the law of the land. Equality
among sovereigns is a generally accepted
principle in international law. One sovereign
cannot be placed under the jurisdiction of
another sovereign and vice-versa, otherwise it
will result into vexing the peace among nations.
With that, foreign states can also claim
immunity from here, based from those 3
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types of classification:
. a) When the foreign state is sued by name
. b) When an UNincorporated government
entity of a foreign state is sued by name
. c) If a public officer of a foreign state is sued
in his official capacity in the Phils and
ultimate liability rests upon the foreign
state which may require it, in case of an
adverse ruling, to appropriate public
funds.
IMPLIED CONSENT
a. Government enters into contract
In the case of US v Ginto it was
raised that there was no consent and so
the Phil SC had to go and analyze the
nature of the relationship between the
employee cook and the US facility, on
what was the nature of the contract
entered into. The rule being, it's not the
fact of entering into a contract that is
deemed to be a waiver of immunity,
rather the nature of the contract entered
into by the State as to what shall
constitute waiver of immunity or implied
consent. So if the nature of the
contract is governmental, there is no
waiver. If the nature of the contract is
proprietary or business, then there is
a deemed waiver of immunity.
The problem is that when is it
considered governmental or when is it
considered proprietary? Public utilities,
is it governmental or proprietary?
Providing electricity, is that a State
function? To provide us with water, is
that a State function or is it proprietary?
So that will determine whether the fact
of entering into a contract is deemed an
implied consent or waiver of immunity. It
is not the fact of entering but the
nature of the contract entered into.
Governmental are commonly
referred to as those essential to the
existence of the State, service to the
public at large as opposed to those
which are private or necessary for the
general welfare, health. Proprietary,
they are to promote comfort and
convenience and has nothing to do with
administration of property. Public
utilities are proprietary, they are not
governmental. We can do without
them. Of course it would be very difficult
for your generation to live without
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electricity. If no tubig, okay lang.
Bahalag walay ligo muadto sa school
basta may aircondition.
b. Inequitable to claim immunity
The second type of implied
consent is when it is inequitable for the
State to claim immunity. Now, in almost
all types of cases discussed falling
under this, the usual cases would refer
to actual expropriation. Under your
Rules on eminent domain, when the
State expropriates, it has to file a
complaint for expropriation, it has to pay
the full value of the initial valuation
before it is given the power or authority
to enter and take possession of the
property, the determination later on of
the propriety of the exercise of the
eminent domain and thereafter the
termination or evaluation of just
compensation.
Now in the old cases where the rule of equity
was used as implied consent, they are referred
to as actual expropriation without the State
going through filing of action for eminent domain
or expropriation. So later on, when the property
owner sues the State, the SC has allowed the
suit to prosper because for the State to claim
immunity would be inequitable. Because if we
are to question: can the property owners sue the
DPWH for a sum of money for the value of the
land? Is that a suit against the State?
Technically it is a suit against the State. DPWH
is not an incorporated entity. And if DPWH will
lose, the State will have to appropriate sums of
money to pay the value of just compensation.
But because it is inequitable for the State to
claim immunity, the SC allowed these types of
cases. But since it is a rule of equity, it is not for
us to apply when there is no prior case decided
by the Supreme Court on it. This is strictly
followed if there is no implied consent, or an
express consent, the case should be dismissed.
c. Government Initiates a complaint
open to a counterclaim
And when a government
initiates a complaint, it is open to
counterclaim, the theory being that, the
state has descended to the level of an
ordinary party to a case. And as we all
understand, when the complaint is filed,
the plaintiff is open to a counterclaim to
the defendant. So it is not the fact that
the state enters into litigation. It is the
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nature of the relief which the state seeks
in the litigation. If the state enters into
litigation which seeks dismissal under
immunity, it is not open to counterclaim
because it is not a waiver. But if the
state seeks affirmative relief against
another party, the other party can now
ask a claim against the state and that
maybe in a form of counterclaim
because the state is deemed to have
descended into the level of an ordinary
party-claimant to a case opening itself to
any counterclaim.
Now, consent to be sued is only
necessary if it is a suit against the state
in order for the party claimant to
proceed with and prosecute the case.
The liability is not dependent upon
consent because liability is always
dependent on the evidence on hand and
the applicable laws on a given set of
facts. So rule is if it is a suit against the
state, there is no consent, obviously you
cannot prove liability on the part of the
state. If it is a suit against the state,
there is consent (express or implied), it
is not automatic that the state is liable.
You are given the chance to prove that
the state is liable based on evidence
and based on the applicable rules, but if
there is no consent, there is no way to
prove liability on the part of the state.
Now the consent is valid from
the initiation of the action up to the
rendition of decision. It is not good post-
rendition of decision. The decision
favorable to a plaintiff- claimant cannot
be executed like ordinary writs under
Rule 39 because you will have to submit
to COA, and COA has to file it to the
DBM. If the DBM has no money for it, it
is supposed to be incorporated in the
budget proposal for the government
entity which was the defendant-debtor
maybe, or it may be funded by
Congress, during the deliberations
during the next year’s General
Appropriations Act. It is not implemented
by mere execution under ordinary
execution rules in Rule 39.
Now, in relation to immunity, because of the
concept of public officers sued in their official
capacity, we have made mention that if it is
personal, it is taken away from the concept of
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state liability because the public officer is sued
by reason of his malicious conduct acting in
grave abuse of power without authority, then it is
his personal liability, it is not the State’s liability,
thereby taking it away from the concept of state
immunity.
In relation to that, there are some immunities
which other officers of the Philippines enjoy and
are categorized under what is commonly known
as impeachable officers. You remember,
impeachable officers are your President, Vice
President, members of the SC, members of the
Constitutional Commission and the
Ombudsman. There are five officers, there are
six grounds. By reason of the fact that they are
impeachable officers, we understand that they
enjoy some form of immunity for any and all
types of cases which may effectively remove
them from office before impeachment. Except
for the President who is immune absolutely
during his term of office, all other four other
impeachable officers enjoy relative immunity
from all cases which may effectively remove
them from office. So for example, a SC justice
cannot be subjected to what seemingly is
administrative case for disbarment before
impeachment because membership in the bar is
a qualification to the SC. You must impeach him
first before he can be subject to disbarment. The
same thing with all the rest, which has the
special qualification of being a member of the
bar. They enjoy that kind of immunity.
They are not immune because they are public
officers under the concept of state immunity, and
it should not be understood that their immunity is
that of the State. The President is immune
absolutely during his term, regardless of when
the cause of action exists even before or prior
to, as opposed to the president of the US, the
sitting President of the US is immune from suit
where the cause of actions exists during his
term. But he is not immune for causes of action
which exists prior to his term. He can be sued
even during his term.
Diplomatic Immunity
In relation to immunities of public officers, there
are two conventions in Vienna: the 1961
Convention on Diplomatic Relations; and the
1963 Convention on Consular Relations.
With respect to the 1961 Convention, the
officers mentioned enjoy absolute immunity from
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the application of the laws of the host country.
They refer to the heads of mission,
ambassadors, nuncios inter nuncios and
chargés d’affaires. In the 1963 Consular
Convention, they only refer to the curricular
and consular duties of the consuls and the
officers there. Relative immunity for official
duties. And they are immune from the
application of the laws of the host country.
In the 2014 bar exams, this was asked, because
a rare case happened in the Philippines. An
Italian ambassador with an ambassador status
in another country went to the Philippines for
vacation. And he went to one of the resorts in
the Philippines and he decided to pick up some
boys because he had a liking for boys. And so
he was arrested for pedophilia. So there was
that question whether he is immune from the
application of the Philippine laws because he is
an Italian ambassador or with an ambassador
status but not to the Philippines. The Philippines
was not the host country. It only applies to the
host country. If you are elsewhere, then you
do not enjoy diplomatic immunity. So in the
host country they are immune from all kinds of
laws: criminal, civil, or administrative. That’s
absolute immunity. The only remedy of the host
country is to compel the departure of that person
with immunity is to refer him as a persona non
grata and his diplomatic papers will be revoked
or returned and he will have no right to be
received by the host country.
As to other international organization, the UN
and its attached agencies are absolutely
immune from the applicability of the laws of the
State where it may be found. Because this was
based on the establishment of the UN that it will
not be subject to the jurisdiction or authority of
any of the member States. So you have many
cases here in your outline decided by the SC.
The World Health Organization, International
Labor Organization. They rent office spaces
here and if they do not pay, you cannot even
sue them because they are beyond the
application of our laws and beyond the
jurisdiction of our courts. Of course, those are
previous cases. I think now they will pay the
rents if they are sued for payment. But in case it
happens they are really immune from the
application of our laws and beyond the
jurisdiction of our courts.
The same is true with the Holy See. You have
come across the case of Holy See, there’s a
judge, the Holy See is the representative of the
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Pope, the Vatican as a State. It’s like an
independent State which has a diplomatic
relation with us and the Holy See cannot be
sued and cannot be placed under the jurisdiction
of our courts and no law is technically applicable
just like a foreign sovereign.
For other international inter-governmental
organization or nongovernmental international
organizations, these organizations are normally
established by several members or contracting
states and there is a common provision there
that they cannot be subjected to certain laws,
not all the laws, of the member country which
they may be found. If you remember the case of
Liang of the Asian Development Bank (Liang
vs. People, March 26, 2001), there is an
agreement with respect to the presence of the
ADB here as to what it is exempt from and as to
what it is not exempt from. The ADB is not
exempt from the application of Philippine laws
with respect to banking practice. But other than
that, like in a labor case, it is not subject to the
jurisdiction of the NLRC.
What about Congress? We have the President,
members of the Supreme Court. Do members of
Congress enjoy immunity? At most you can give
them that immunity under the speech and
debate clause. They may, in any expression,
utterances that they have made in Congress,
they shall not be liable in any other place except
in Congress. That’s why in the news if you might
have read, the Makabayan group has protested
inside the Congress in joint session when the
President was deliberating the SONA. Some
would say they should have not done that being
models of decorum, but you see it is Congress.
And Congress is the term used for a collective
group of baboons. So it is not surprising.
July 29, 2015- Brunx
*stories about the budget*
CONGRESS
Now we are starting with Congress.
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Senate:
Section 2. The Senate shall be composed of
twenty-four Senators who shall be elected at
large by the qualified voters of the Philippines,
as may be provided by law.
Section 3. No person shall be a Senator unless
he is a natural-born citizen of the Philippines
and, on the day of the election, is at least thirty-
five years of age, able to read and write, a
registered voter, and a resident of the
Philippines for not less than two years
immediately preceding the day of the election.
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.
House of Representatives:
Section 6. No person shall be a Member of the
House of Representatives unless he is a natural-
born citizen of the Philippines and, on the day of
the election, is at least twenty-five years of age,
able to read and write, and, except the party-list
representatives, a registered voter in the district
in which he shall be elected, and a resident
thereof for a period of not less than one year
immediately preceding the day of the election.
THE OBLIGATIONS FOR MEMBERS OF
CONGRESS
There’s not much discussion there except for
residence, because that’s where most of the
cases are:
 For the house of senate, there’s the 2
year requirement
 For the house of representatives, 1 year
in the district
 For party-list representatives only 1 year
in the Philippines because they are not
elected by district.
Now speaking of residency, it has been in the
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news lately because of the consideration of
Grace Poe on her running for the VP or P. We
all know that residency, is acquired by birth for
minors and it continues to be residence or
domicile of origin until the minor reaches
majority age and would choose or ought to have
his own domicile of choice.
For Filipino woman or husband for that matter,
because of the consideration of establishing a
Family Home, there may be an actual change of
residence to constitute a Family home but that
doesn’t necessarily mean that that has to be the
new domicile of choice.
In the old case of Romualdez vs. Comelec, the
fact that Ms. Romualdez moved to Manila to
marry Marcos and stayed there for most of their
adult life, that doesn’t mean she has abandoned
her domicile of origin simply because she has
married and established residence in
Malacanang. A married woman or man can
maintain his domicile of origin even if he has
established a family home elsewhere.
The Domicile of Origin may be changed based
on 3 basic requirements:
1. There must have been a bona fide
intention of establishing a new domicile
2. There must be an actual uprooting or
removal of one’s self from the domicile
of origin to the domicile of choice
3. Performance of acts which are
constitutive of the good faith intention of
changing a domicile.
In your outline, there are several cases there.
The case of Sabili vs. Comelec, it was in part
reiterated in Mitra vs. Comelec. The
performance of acts constitutive of the good faith
intention of transferring your domicile need not
be accomplished in 1 single act. There can be
such a thing as incremental process – you can
transfer now like in the case of Mitra, transfer to
1 place from Puerto Prinsesa to Aragolan? on a
leased premises and eventually bought a
residence, establishing his business, it can be
accomplished overtime to show there was good
faith intention of establishing a residence.
There’s no need of uprooting yourself and your
concerns at one period of time.
In the case of Talaga vs. Comelec, it was also
reiterative of that ruling, although the issue there
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is substitution of disqualified candidates.
Now in relation to this issue of Poe on residency,
also there has been an issue raised on her
citizenship. Is she a natural born Filipino? *Poe
stories* Or could she qualify for residency [10
years for presidency] considering that in the
2013 elections, when she filed her 2012 COC
she indicated there that she has been a resident
of the Philippines for 6 years and 6 months prior
to the May 2013 elections. You add 3 years,
that’s 9 years and 6 months.
The qualifications for members of Congress
generally has to be reached, there’s a provision
in the Constitution, it has be on the date of the
election. All the rest, it shall also be on the date
of the election, not the filing of the certificate, not
during proclamation.
So she must have to be a 10 year resident of the
Philippines at the time of the 2016, 2 nd Monday
of May elections. There are obviously arguments
for and against that her entry in the 2012 COC is
a mistake but it was a sworn mistake. Probably
she didn’t understand the concept of residency
in law, which is your legal residence that
whenever you are absent you have the intention
of returning and the intention of returning is
continuing – animus revertendi and animus
manendi.
And Poe was born, her records, on 9-3-1968 in
Jaro, Iloilo. But there is a question of her
citizenship because she is said to be a
foundling. Under the 1961 Convention of
Statelessness or Stateless Persons, there is
under Section 2 thereof a provision which states
“that a foundling found in a place is deemed to
be a citizen of that place born of parents also
citizens of that place.” There is no secret that
she is adopted, that she was found, but WON
she is a foundling is another issue. The question
here is who has the burden of proving.
Again, if it were to be residence as an issue in
the case of Asistio vs. Aguirre, if it is your
domicile by origin there must have to be a
showing that you have made and satisfied those
3 conditions to validly change your domicile from
origin to that of choice. In the case of Asistio, he
erroneously indicated in his COC his own
address in Caloocan, and that street did not
exist as a matter of fact. *Asistio stories* So the
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SC said that it is a known fact that Asistio is a
known political family in Caloocan. The fact that
there was an erroneous entry in his COC as to
his address does not mean that he has actually
abandoned Caloocan as his residence and has
changed to a domicile of choice, absent those 3
conditions.
So same thing with Poe because she was found
in the Philippines, the presumption under the
convention is that she is a citizen of the
Philippines, and born of parents who are citizens
of the Philippines, the state where she has been
found. Because the 1935 constitution of which
she was born under states that if the Father is a
Filipino, then the child is considered as natural
born. The fact that she went to the US
eventually got citizenship there to study or work,
should not mean that she could not reacquire
her former status under RA 9225 – she could
reacquire her status, which she did when she
came back sometime in 2004 to be appointed as
the head of the MTRCB. So she had to
renounce her US citizenship, bringing her back
to her status as a Filipino Citizen, natural born at
that.
Now, residency, still based on the old case of
Romualdez, the fact that she has left the
country, made actual residence elsewhere, did
not mean that she abandoned the Philippines as
her legal residence. So there may be some point
in saying that her declaration in her 2012 COC
may have been an honest but sworn mistake.
She should not be bound by such false
declaration. The legalities of residency or legal
residency is beyond the understanding of a
layman for that matter. So intent to return, and
the intention of returning, are legal concepts
which may be applied to her for purposes of
establishing the 10 year residency requirement.
What other requirements are there?
 able to read and write,
 a registered voter
 Members of Congress: 25 years of age
 Members of Senate: 35 years of age
 Presidency: 40 *Pacquiao age stories*
By the way this case of Mitra, those are the 3
conditions for validly changing domicile from of
origin to choice. In the case of Mitra, because he
had to move from Puerto Prinsesa to a
municipality, considering that Puerto Prinsesa is
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no longer a component city of Palawan and he
wanted to run as Governor of Palawan, he had
to transfer to a municipality Aragolan. The
COMELEC disqualified him because evidence
which was submitted and appreciated in the
COMELEC would show that the supposed new
residence of Mitra is devoid of any luxury
consistent with his stature as part of the Mitra
political clan in Palawan. And the language of
the court [I think COMELEC pasabot ni Sir] is
“devoid of any indication that he has personality
and lacks loving attention to details inherent in
any home to make it one’s residence.” The SC
said that COMELEC made an abuse of
discretion to determine the fitness of the
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. Thus, the conclusion is
subjective or non-legal standards to make one a
house or dwelling as a new residence for
purposes of complying with the requirements of
a valid change of residence or domicile is not
required by law. For so long as those 3
conditions are met and there is sufficient
evidence to establish and prove that a person
has actually taken up a new residence based on
those 3 legal conditions, then there should be a
finding that there has to be a valid change of
residence regardless of the standards by which
one’s residence is constituted? The law does not
require you that there has to be, if your former
residence is worth 100M that your new
residence will be worth as much. There is no
such thing as that. And regardless of how the
new residence is, provided there is an actual
uprooting, good faith intention, performance of
acts, that you had left the old residence and
established in that new place a new residence –
that should be sufficient for a valid transfer of
domicile. This time, that will be your domicile of
choice.
APPORTIONMENT OF DISTRICTS
In the case of Naval v. Comelec, mentions or
discusses the rationale of apportionment. “The
rationale behind reapportionment is the
constitutional requirement to achieve equality of
representation among the districts.
Reapportionment is "the realignment orchange
in legislative districts brought about by changes
in population and mandated by the constitutional
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requirement of equality of representation."40
The aim of legislative apportionment is to
equalize population and voting power among
districts.41 The basis for districting shall be the
number of the inhabitants of a city or a province
and not the number of registered voters
therein.42”
Sec. 5 of Article VI par. 3 and 4 of the
Constitution:
Each legislative district shall comprise, as far as
practicable, contiguous, compact, and adjacent
territory. Each city with a population of at least
two hundred fifty thousand, or each province,
shall have at least one representative [district
ingon ni Sir].
Within three years following the return of every
census, the Congress shall make a
reapportionment of legislative districts based on
the standards provided in this section.
If you noticed the 1987 Constitution has an
appendix; it’s an ordinance distributing the
legislative districts in the entire country – that’s
the basis of the 250,000 legislative districts,
which the composition of the lower house, the
50 there is reserved for party list. That’s why the
Constitution says:
The House of Representatives shall be
composed of not more than two hundred and
fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts
apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and
those who, as provided by law, shall be elected
through a party-list system of registered
national, regional, and sectoral parties or
organizations.
The party-list representatives shall constitute
twenty per centum of the total number of
representatives including those under the party
list. For three consecutive terms after the
ratification of this Constitution, one-half of the
seats allocated to party-list representatives shall
be filled, as provided by law, by selection or
election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth,
and such other sectors as may be provided by
law, except the religious sector.
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So only the 200 is reflective of the 1st legislative
district count in the country, and 50 there is for
party list and “Within three years following the
return of every census, the Congress shall make
a reapportionment of legislative districts.” Again,
to equalize the voting power of districts based
on population, not based on registered voters.
The case of Sema vs. Comelec, it’s a simple
case that states that the ARMM Congress or
ARMM legislative body cannot apportion
districts. The apportionment is based on Sec. 5
of Article VI which Congress shall have
exclusive authority to do, it cannot be done by
any other legislative body not Congress.
The case of Aldaba vs. Comelec. It simply
states that in the reapportionment of districts,
the population is based on mid-year figures per
declaration certified by the National Statistical
and Coordination Board (NSCB).
What is meant by Mid-year figures? Mid-year of
election years. So since election is every 3
years, 2010 and 2013, so it must be between
those 2 years, that is the basis of the population
census as certified by the Board for purposes of
determining the 250,000 population requirement
has been met or satisfied.
Now, in the case of Navarro vs. Ermita,
involves the creation of province for the
purposes of establishing a district. A province
can be broken down into 2, or a province can be
increased in terms of its district for purposes of
representation. If a province is created, it must
have:
1. Income of 100M, in the local
government code it’s 20M, but because
of the several decisions in the League of
Municipalities case, there are 6 of them
and it is confusing for us to know how
the SC finally resolved it, it has been
increased to 100M, AND
2. Territory of 2,000 square kilometres, OR
250,000 in population
But that requirement in the case of Navarro, SC
said it does not apply to island provinces, like
the Dinagat Island province which was the
subject of this case.
Then in the case of Aquino vs. Comelec, this
was the issue on the creation of additional
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districts of a province. Going back to Sec. 5 par.
3 of Article 6:
Each legislative district shall comprise, as far as
practicable, contiguous, compact, and adjacent
territory. Each city with a population of at least
two hundred fifty thousand, or each province,
shall have at least one representative [district
ingon ni Sir].
The phrase “city with a population of at least two
hundred fifty thousand” is separated by a
comma, to refer to the province. There is no
indication there that the 250,000 population is
applied also to the province.
Aquino has petitioned to declare the law creating
an additional district as unconstitutional because
there is no provision in the Constitution which
allows the establishment of new districts in a
province if the population has gone more than
250,000. The SC said that based on 2
considerations: [note: walay giingon si Sir na #2]
1. The 1995 decision of Mariano vs.
Comelec – this case involves the law
creating Makati City from what used to
be the municipality of Makati. At the time
the City of Makati was established, the
population count was 450,000. So when
it was established into a city, the law
provided for 2 congressional districts. It
was questioned before the SC that it
could not be because the Constitution
says for City, there must have to be at
least 250,000 for it to have 1 district and
by analogy, according to the petitioner,
there has to be another 250,000,or
500,000 total population, for it to have 2
districts.
SC said no. Only the 1st 250,000 is
mandatory, meaning the initial 250,000
is mandatory to give a city 1 district. The
additional district need not comply with
the 250,000 population count.
HOWEVER, it must be near 250,000,
like 200,000. Hindi naman pwedeng
300,000 total population then you get 2
districts. That’s not how it goes. The
next 250,000 must be near or very near
the 250,000 benchmark.
So should it apply to provinces?
The SC said based on the deliberations
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of Congress or the ConCom when the
87 Constitution was crafted, the
discussion would should that the
250,000 is applied and is also applicable
to provinces. And in fact in the
ordinance attached to the 1987
Constitution, the 200,000 population
was used as a factor as well to grant
more districts in 1 province. While the
Constitution says “each province, shall
have at least one representative [district
ingon ni Sir]” there were several
provinces in the ordinance showing that
they had more than 1 district because
their population went more than the
250,000 benchmark. So that similarly, if
it were a province, initially it may have
only 1 district, it can establish more
districts if the population has gone
beyond 250,000 and nearer the next
and succeeding 250,000 in population.
So assuming provinces have a
population of 1M, so how many districts
would it be? Divided by 250,000, that’s
how many districts a province is entitled.
PARTY LIST REPRESENTATIVES
With respect to party list representatives, they
would have the same qualifications as ordinary
district representatives except that there is a
difference in the residency requirement and also
a difference in the nominations required to
represent a party. The term of office is the same
and the term limitations are also the same. The
only difference would be those representing the
youth sector which in the case of Amores v.
HRET, the SC said they cannot be more than 30
years of age. But if incumbent representing the
youth sector is 30, he will be allowed to finish his
term but can no longer sit thereat after the term
ends.
The qualified groups under RA 7941, has been
substantially modified the 2013 case of Atong
Paglaum vs. COMELEC where Carpio
remodified the earlier ruling in Bagong Bayani
case and these are now the parameters of which
party and the rules allowing participation under
the party list systems act:
“In determining who may participate in the
coming 13 May 2013 and subsequent party-list
elections, the COMELEC shall adhere to the
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following parameters:
1. Three different groups may participate in the
party-list system: (1) national parties or
organizations, (2) regional parties or
organizations, and (3) sectoral parties or
organizations.
2. National parties or organizations and regional
parties or organizations do not need to organize
along sectoral lines and do not need to
represent any "marginalized and
underrepresented" sector.
3. Political parties can participate in party-list
elections provided they register under the party-
list system and do not field candidates in
legislative district elections. A political party,
whether major or not, that fields candidates in
legislative district elections can participate in
party-list elections only through its sectoral wing
that can separately register under the party-list
system. The sectoral wing is by itself an
independent sectoral party, and is linked to a
political party through a coalition.
4. Sectoral parties or organizations may either
be "marginalized and underrepresented" or
lacking in "well-defined political constituencies."
[it is not required that they represent both] It is
enough that their principal advocacy pertains to
the special interest and concerns of their sector.
The sectors that are "marginalized and
underrepresented" include labor, peasant,
fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and
overseas workers. The sectors that lack "well-
defined political constituencies" include
professionals, the elderly, women, and the
youth.
5. A majority of the members of sectoral parties
or organizations that represent the "marginalized
and underrepresented" must belong to the
"marginalized and underrepresented" sector
they represent. Similarly, a majority of the
members of sectoral parties or organizations
that lack "well-defined political constituencies"
must belong to the sector they represent. The
nominees of sectoral parties or organizations
that represent the "marginalized and
underrepresented," or that represent those who
lack "well-defined political constituencies," either
must belong to their respective sectors, or must
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have a track record of advocacy for their
respective sectors. [this is what is referred to as
an ideological requirement. You may not be one
of the poor, you need only to have a track record
of doing things for the poor.] 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.”
And that was part of the ruling in Abang
Lingkod v. COMELEC 2013 ruling as well,
where the SC reiterated that the nominees need
not belong to the sector, they only need to have
a track record and the nominees are required to
submit that they accepted the nomination and
submission of the list nominees cannot be
changed subject to those 2 exceptions under RA
7941.
ALLOCATION OF SEATS FOR PARTY LIST
This has also been substantially changed
because of the ruling in 2009 Banat v.
COMELEC. Before the Banat ruling, there was
the Veterans vs. Comelec case where the 2%
threshold is required for a party to be allocated a
seat. In the Banat ruling, the SC re-evaluated
the provision and the Constitution says the 20%
of the seats of the lower house shall be
allocated for the party list, that is a mandatory
requirement so that there will be representation
under the party list system in Congress or Lower
House – that 20% must be filled up.
So even if the party does not reach the 2%
threshold in the previous ruling, this time now,
the number of seats must be filled up regardless
of the fact of whether the party has reached the
threshold. So what is to be done today is to:
1. Rank all the parties based on votes
garnered from top to bottom
2. Then the 20% of the total number of
seats for the lower house must have to
be determined to determine the number
of seats to be allocated for the party list.
This 20% has been turning every
election simply because the number
districts would necessarily increase on
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account of the rule on reapportionment.
3. After that, those parties which have
garnered at least 2% of the total number
of votes cast for the party list is entitled
to 1 seat. SC referred to that as the
guaranteed seat.
4. The number of guaranteed seats shall
be deducted then to the number of seats
to be allocated for the party list [20%].
5. The difference will be considered as the
remaining seats. Now who shall be
entitled to the remaining seats? Now,
the parties from top to bottom, there will
be a determination on how many
number of seats of the remaining seats
shall the party or the parties will be
entitled to. The parties’ votes shall be
divided by the total number of votes
cast. The percentage result will then be
multiplied with the remaining seats and
the product will be number of seats the
party will get from the remaining seats.
6. Until the 20% is filled up.
7. There shall be no rounding off of
fractions unless its .9. Lower than that, it
will not be rounded off.
8. And no party shall be entitled to more
than 3 seats – because that’s the
threshold for maximum number of
allowed seats.
TERM LIMITATIONS
Now, all the members of congress, HOR or
Senate, follow the 3-term limitation rule.
One the very first cases in the 3-term limitation
rule discussed would be the cases of Aldovino
v. COMELEC. It involved a preventive
suspension while in Congress. Should that
period of time during his preventive suspension
be deducted for purposes of 3 term limitation?
Because the rule on 3-term limitations provide
that voluntary renunciation shall not be
considered as interruption of the term.
For the house of senate, you have 2 consecutive
terms. For the house of representatives, you
have 3 consecutive terms. Now the rationale
behind the term limitations is to avoid over-
concentration of power in 1 person if he is made
to serve more than what the law allows. And it’s
also to infuse newer blood into politics.
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This case of Abundo vs. Comelec qualified all
the rules on 3 term limitation. This is in local
government, but the principle applies in position
where we follow term limitations. The Abundo
ruling mentions of 8 rules there: [I did not
transcribe what sir said explicitly, refer to ruling
of Court as outlined by Sir below and his
comments after]
1. Rule on succession: “When a avoided by reason of term limitation still
permanent vacancy occurs in an
elective position and the official merely
assumed the position pursuant to the
rules on succession under the LGC,
then his service for the unexpired
portion of the term of the replaced
official cannot be treated as one full
term as contemplated under the subject
constitutional and statutory provision
that service cannot be counted in the
application of any term limit (Borja, Jr.).”
2. The 2nd rule is the reverse: “If the official
runs again for the same position he held
prior to his assumption of the higher
office, then his succession to said
position is by operation of law and is
considered an involuntary severance or
interruption (Montebon).” [because we
always follow the elected-and-served
rule. So if you have not been elected to
Congress but you served, it is not a term
counted for it even if you have served
that office but you have not been
elected to that office, that will also not
be counted as a term for purposes of
term limitation]
3. Recall Elections: “An elective official,
who has served for three consecutive
terms and who did not seek the elective
position for what could be his fourth
term, but later won in a recall election,
had an interruption in the continuity of
the official’s service. For, he had
become in the interim, i.e., from the end
of the 3rd term up to the recall election,
a private citizen (Adormeo and
Socrates).” [He can run in the recall
election because there is a voluntary
interruption after the prohibited
consecutive term. This was the case of
the Mayor of Puerto Prinsesa, he served
for 3 terms, he rested, there was a
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mayor, he participated in the recall
election.]
4. Conversion of LGU: “The abolition of an
elective local office due to the
conversion of a municipality to a city
does not, by itself, work to interrupt the
incumbent official’s continuity of service
(Latasa).” [because the evil sought to be
exists, it is the same territory, it is the
same constituency.]
5. Preventive suspension: Preventive
suspension is not a term-interrupting
event as the elective officer’s continued
stay and entitlement to the office remain
unaffected during the period of
suspension, although he is barred from
exercising the functions of his office
during this period (Aldovino, Jr.). [it is
considered as not to affect the term,
meaning it is counted as a term]
6. When a candidate is proclaimed as
winner for an elective position and
assumes office, his term is interrupted
when he loses in an election protest and
is ousted from office, thus disenabling
him from serving what would otherwise
be the unexpired portion of his term of
office had the protest been dismissed
(Lonzanida and Dizon).
Example ni Sir: Candidate A was
proclaimed but a protest was filed
against him but before the end of his
term he loses in the protest case, so he
was removed from office. Is that term
counted against him? No, because it
has not been served. Again we follow
the elected-and-served rule. Even if he
has been elected and serving for 2
years and 10 months, but he was
removed for the last 2 months, that will
not be considered as his term because
he has not fully served the term.
7. Example ni Sir: If an officer has been
elected, he has won, served, despite
fact that he has lost in the election
protest, but the decision to oust him
came AFTER the term has been duly
served, [in the Philippines, election
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happens every 3 years, protests cannot
be decided within the 3 year period] will
the term be counted to him even if he
was not legally elected to that position
having lost in the election protest? SC
said yes, because technically has
already fully served and the fact that he
has been disqualified [meaning not duly
elected] came after full service of the
term.
8. Sir: In the case of Abundo is that you
are the protestee. Election, you lost, you
filed a protest, before the end of the
term the protestee won the protest and
therefore he was proclaimed the winner
and made to serve. Will that term be
counted for him? No, because while he
has been declared the winner, and
therefore elected, he has not fully
served the term.
NOTE: These are parts of the ruling of the case
where Sir Montejo did not mention. For 7 and 8
above, he only mentioned examples. Please
take note: 
“The break or interruption need not be for a full
term of three years or for the major part of the 3-
year term; an interruption for any length of time,
provided the cause is involuntary, is sufficient to
break the continuity of service (Socrates, citing
Lonzanida).
When an official is defeated in an election
protest and said decision becomes final after
said official had served the full term for said
office, then his loss in the election contest does
not constitute an interruption since he has
managed to serve the term from start to finish.
His full service, despite the defeat, should be
counted in the application of term limits because
the nullification of his proclamation came after
the expiration of the term (Ong and Rivera).”
So those are the rules of counting of term of
office or applicability in successive terms under
term limitations.
Aug. 4, 2015-Yna
The item on qualifications. You may have read
the decision of the Supreme Court in the case of
Baterina v Singson. This has something to do
with the petition for disqualification with the
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COMELEC and eventually, petition for protest
with the HRET. You may have remembered in
2010, Rep. Singson of Ilocos was arrested in
Hongkong International Airport for carrying 6.7
grams of cocaine. After plea bargaining, he
pleaded guilty and was sentenced to over 1 year
imprisonment. Having served in the election
after the sentence was laid down with finality,
Baterina and Singson ran for the 2013 elections.
The petition for disqualification and petition to
deny due course to the COC was denied by the
COMELEC and eventually, Singson won. The
matter was referred to the HRET. The HRET
dismissed the protest on the ground that the
conviction of possession of drugs is not a
ground for disqualification. The disqualification
here was not based on the provisions of the
Constitution, with respect to qualifications. As it
is, you should remember the case of SJS v
Dangerous Drugs Board (570 SCRA 410). When
the Constitution provides for qualifications of
office, that cannot be amended by law. So when
that law (RA 9165) required mandatory drug
testing for national officers whose qualifications
are provided in the Constitution, that portion of
the law was declared unconstitutional because
no law can amend the Constitution. So, no
wonder a lot of drug users and addicts are in
Congress.
This was based on Sec. 12 of the Omnibus
Elections Code, where conviction of a crime by
final judgment – among others – including moral
turpitude, is a ground for disqualification. That
was the basis for disqualification. It was not
because of the constitutional requirements of
qualification. The SC eventually dismissed the
petition filed against the HRET and said that the
COMELEC and HRET did not commit grave
abuse of discretion. There were 3 grounds
mentioned:
1) Technicality, because the petition with
the SC was filed outside the 30-day
reglamentary period. As you all know,
decisions from the HRET are reviewable
under Article IX-A, Sec. 9 to the SC via
Rule 64, in relation to Rule 65. It was
filed outside the 30-day period.
2) On the substantial discussions, the
petitioner Baterina needed to prove the
existence of the foreign judgment of
conviction, which also goes to your
knowledge of Civil Procedure. How do
you prove the existence of a foreign
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judgment? What was presented here
was a downloaded and printed copy
from the internet. Is that, under
Electronic Evidence, admissible
evidence?
3) On the issue of moral turpitude, which is
on the qualification aspect, SC said that
drug possession does not involve moral
turpitude. Drug possession and use, not
sale and trafficking, does not involve
moral turpitude. So let’s do drugs,
provided we don’t sell.
The SC said that what defines moral turpitude is
the character or kind of public act. It is not only
that it is mala prohibita, but it must be inherently
immoral. And the doing of the act itself, not the
statute fixing penalties, characterizes or defines
it as one involving moral turpitude.
2. ELECTION
A. REGULAR ELECTION
ARTICLE VI, SECTION 8. Unless otherwise
provided by law, the regular election of the
Senators and the Members of the House of
Representatives shall be held on the second
Monday of May.
Because of the synchronization of election, 12
senators are elected every 3 years.
B. SPECIAL ELECTION
ARTICLE VI, SECTION 9. In case of vacancy in
the Senate or in the House of Representatives,
a special election may be called to fill such
vacancy in the manner prescribed by law, but
the Senator or Member of the House of
Representatives thus elected shall serve only for
the unexpired term.
There is a specification on the period of
prohibition where there could be no special
election. The vacancy should be filled up in the
next regular elections.
3. SALARIES, PRIVILEGES, AND
DISQUALIFICATIONS
A. SALARIES
ARTICLE VI, SECTION 10. The salaries of
Senators and Members of the House of
Representatives shall be determined by law. No
increase in said compensation shall take effect
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until after the expiration of the full term of all the
Members of the Senate and the House of
Representatives approving such increase.
ARTICLE 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.
ARTICLE VI, SECTION 11. A Senator or
Member of the House of Representatives shall,
in all offenses punishable by not more than six
years imprisonment, be privileged from arrest
while the Congress is in session. No Member
shall be questioned nor be held liable in any
other place for any speech or debate in the
Congress or in any committee thereof.
With salaries, the discussion there is with
respect to the increase. What is to be made
clear is that there is no prohibition on a law
being passes, increasing the salary. There is
only a prohibition on the increase taking effect
before their term ends. So that even if the
present Congress will enact a law increasing the
salary of its members, that is allowable. What is
not allowable is for that law to take effect during
such term. The Constitution uses the singular
word “term” to indicate the terms of office of all
the members of Congress that approved the
law, regardless of whether the member has
voted in the negative. This should not have been
a problem, except for the fact that there are 12
senators sitting at any given time. So it must be
considered, what is the term or end of office of
the 12 senators? There is an overlapping of
terms because of the synchronization of election
laws on the matter.
This provision on increase is based on the old
policy that this is the only bar that can prevent
them from enacting a law that will increase their
salary. As you may have noticed, the usual
legislation of Congress is the annual budget.
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That’s the only thing that they are worrying
about, every year. What’s the latest law that you
know of that has been passed by Congress and
signed by the President into law? You don’t
know anything? Okay. Did you know that the
age of majority has already been lowered to 18?
Of course. Probably you have come to know
that, about a month ago, we have a new
_______ law. And there is an amendment to the
monopolies that the President has signed last
July.
B. FREEDOM FROM ARREST
The discussion there is on the threshold of the
penalty imposable for the offense charged,
which is 6 years and below. If the penalty is 6
years and 1 day or over, the privilege of freedom
from arrest is not claimable. The reason for this
is to ensure that there is continued democratic
representation of the constituents, no matter
how criminal-minded he is. So provided he does
not commit serious offenses or heinous crimes,
it’s okay.
The other discussion there is the time, which
has somehow changed from the ’35 to the ’73 to
the ’87. The wording in the ’87 simply uses the
phrase “while Congress is in session”. In the ’73
and ’35, it uses the phrase “while going to,
attending in and coming to a session”. In ’87, it
‘s regardless of the time that the member of
Congress is going to, attending in and coming to
a session. And “session" in our constitution
today is to commence first Monday of July and
to continue for one year, inclusive of those
actual recess and exclusive of the final
adjournment, which is 30 days from the opening
of the next regular session, exclusive of
Saturdays, Sundays and legal holidays. So for
the entirety of the time, recesses included,
excluding the 30-day adjournment, the member
of Congress enjoys privilege.
C. SPEECH AND DEBATE CLAUSE
ARTICLE VI, SECTION 11. A Senator or
Member of the House of Representatives shall,
in all offenses punishable by not more than six
years imprisonment, be privileged from arrest
while the Congress is in session. No Member
shall be questioned nor be held liable in any
other place for any speech or debate in the
Congress or in any committee thereof.
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This is also based on the principle of continued
democratic representation. This is to allow
members of Congress to publicly discharge their
duties and the public’s trust in them that they will
be able to perform what is incumbent upon
them. This is one of the most abused privileges
because the speech and debate clause makes
them immune from any liability, for any action
outside Congress for such speech or utterance
made. They can only be held accountable in
Congress by their own peers, which they
themselves will consider as _______(12:10).
Other than that, they are free from liability,
whether criminal or civil.
D. DISQUALIFICATIONS
1. INCOMPATIBLE AND FORBIDDEN
OFFICES
ARTICLE VI, SECTION 13. No Senator or
Member of the House of Representatives may
hold any other office or employment in the
Government, or any subdivision, agency, or
instrumentality thereof, including government-
owned or controlled corporations or their
subsidiaries, during his term without forfeiting his
seat. Neither shall he be appointed to any office
which may have been created or the
emoluments thereof increased during the term
for which he was elected.
We have incompatible office and forbidden
office. The incompatibility arises by member of
Congress taking another office, other than that
which he has in Congress. If he waives his seat
in Congress, there is no incompatibility. The
former member of Congress can take the new
position. What he cannot take, however, is what
is referred to as a “forbidden office”: one which
was created or established while he was a
member of Congress, or one which was existing
already but the emoluments thereof have been
increased during his term as a member of
Congress.
Both are made to avoid ______(13:14) office.
Both prohibitions are based on the
______(13:20) that members of Congress must
owe their allegiance, full-time, to Congress.
What is exempted from these prohibitions is the
ex-officio position. Ex-officio, no matter how you
characterize them, is based on the fact that
there is additional pay that members of
Congress will receive for performing such
additional tasks. The reasoning is that when the
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member of Congress is paid his principal salary
as such , any additional task is deemed paid as
well. So regardless of any other appointment, for
so long as there is no additional remuneration or
compensation, that can be considered as ex-
officio. What is avoided is that members of
Congress will enrich themselves by taking other
positions while sitting in Congress.
2. OTHER PROHIBITIONS
ARTICLE VI, SECTION 14. No Senator or
Member of the House of Representatives may
personally appear as counsel before any court
of justice or before the Electoral Tribunals, or
quasi-judicial and other administrative bodies.
Neither shall he, directly or indirectly, be
interested financially in any contract with, or in
any franchise or special privilege granted by the
Government, or any subdivision, agency, or
instrumentality thereof, including any
government-owned or controlled corporation, or
its subsidiary, during his term of office. He shall
not intervene in any matter before any office of
the Government for his pecuniary benefit or
where he may be called upon to act on account
of his office.
The other prohibition there would be financial
interest or intervention in any pecuniary interest.
The prohibition on members of Congress who
are lawyers is that they cannot appear as
counsel. That is the only limitation on the
practice of profession. Technically, members of
Congress are not constitutionally prohibited to
exercise their respective professions. Only
lawyers are prohibited from making personal
appearances. The recent discussion here is
whether it is appearance in paper or in person.
Because the Constitution simply states “shall not
appear as counsel”. When a member of
Congress/lawyer signs a pleading and files it in
court, is that covered by the prohibition?
E. DUTY TO DISCLOSE
ARTICLE VI, SECTION 12. All Members of the
Senate and the House of Representatives shall,
upon assumption of office, make a full disclosure
of their financial and business interests. They
shall notify the House concerned of a potential
conflict of interest that may arise from the filing
of a proposed legislation of which they are
authors.
ARTICLE VI, SECTION 20. The records and
books of accounts of the Congress shall be
preserved and be open to the public in
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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 incurred for each Member.
ARTICLE XVII, SECTION 17. A public officer or
employee shall, upon assumption of office and
as often thereafter as may be required by law,
submit a declaration under oath of his assets,
liabilities, and net worth. In the case of the
President, the Vice-President, the Members of
the Cabinet, the Congress, the Supreme Court,
the Constitutional Commissions and other
constitutional offices, and officers of the armed
forces with general or flag rank, the declaration
shall be disclosed to the public in the manner
provided by law.
4. INTERNAL GOVERNMENT OF CONGRESS
A. ELECTION OF OFFICERS
ARTICLE VI, SECTION 16. (1) The Senate shall
elect its President and the House of
Representatives its Speaker, by a majority vote
of all its respective Members.
Each House shall choose such other officers as
it may deem necessary.
B. QUORUM
ARTICLE 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 is the number needed for a house to do
business. So what is quorum? It is majority.
Majority is ordinary. That old case of Santiago v
Guingona (298 SCRA 756) speaks of the term
“majority” in different contexts. In you talk about
elections, where the winner is by mere plurality,
it is the most numerous. Most freshmen students
would say that majority is 50% + 1. That is not
the case at hand. In multi-party elections, it’s the
person who garner the most number of votes,
even if that number is not 50% +1. And unless it
is qualified majority, it is more than half
ordinarily. So in the old case of Avelino v
Cuenco (83 PHIL. 17), where only 23 members
of Senate were accounted for, 12 was
considered by the SC as majority because 12
was more than half of 23. What if there are only
10 present, what is the majority for purposes of
determining quorum? My answer is there would
be no session. The Senate President would not
call a session when there are only 10 members
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in the Philippines. Not that it would never
happen, but they would never call a session
when there are only 10 members present.
What can a number smaller than a quorum do?
The Constitution provides 2 things: 1) they can
call for an adjournment, until a quorum is had; 2)
they can compel the attendance of absent
members under their respective groups; 3) they
even have the authority to impose penalties as
has been provided for in the rules.
With respect to the other voting majorities:
1. Election of officers: simple majority
2. Suspension or expulsion of a member:
qualified majority (2/3)
3. Discipline member (less than
suspension or expulsion): simple
majority
4. Declaration of the existence of a state of
war: 2/3 vote in joint session but voting
separately
5. Grant emergency powers to the
President: simple majority
6. Choose President in case of tie in the
elections: majority vote of both houses
voting separately
7. Conferring the choice of a Vice-
President: as we all know, if there is a
vacancy in the office of the VP
(permanent vacancy during the term),
there shall be no special elections. The
President can choose from among the
members of Congress and the choice of
the President will be conferred by the
Congress. That has happened in the
case of Sen. Guingona, in recent
history.
8. With respect to the Commander-in-chief
powers of the President, meaning to
vote on it when the President gives his
report: majority, joint session, joint
voting. This is the only joint session in
the Constitution where the voting shall
be joint.
9. To concur in the grant of amnesties
under the pardoning /clemency powers
of the President: simple majority
10. Treaty concurrence of the Senate:
qualified 2/3 vote
11. Amend/revise the Constitution
(Congress constitutes itself as
constituent assembly): ¾ vote in joint
session but voting separately
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12. Amend/revise Constitution by
Constitutional Convention: qualified 2/3
vote in both houses by joint session but
voting separately
13. Referendum to call a Constitutional
Convention (ask electorate W/n there
should be a Constitutional Convention):
simple majority by both houses in joint
session but voting separately
C. RULES OF PROCEEDINGS
ARTICLE VI, SECTION 16. (3) Each House may
determine the rules of its proceedings, punish its
Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members,
suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed
sixty days.
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.
There are only 2 things to remember here:
1. Even without a Constitutional provision
allowing Congress or any of its
committees to promulgate rules of
proceedings, it can promulgate its own
rules. Based on the Latin maxim “ex
necessitate rei” or by reason of
necessity, Congress or any of its
committees to properly discharge its
functions, it must have the power to
promulgate its own rules of procedure.
2. The rules in any proceeding in any
committee must have to be published. It
must be published by all Congresses.
Meaning, if the previous Congress has
published its rules, the subsequent
Congress must republish the rules even
if the former rules were just adopted.
Otherwise, they cannot affect persons
who are not members of Congress. This
is important with regard to inquiries in
aid of legislation, electoral tribunal rules,
impeachment rules – proceedings which
include non-members of Congress.
D. DISCIPLINE OF MEMBERS
ARTICLE VI, SECTION 16. (3) Each House may
determine the rules of its proceedings, punish its
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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.
We made mention of the power of each house to
discipline its own members. There is no
constitutional definition on what would constitute
congressional violations or infractions. Even the
term “disorderly behavior” has not been defined,
so it is up to each house to determine in its
rules, what those acts are. The only other
discussion here is, can the SC review the
findings of a House when it finds a member
guilty for such conduct and orders him
suspended/expelled? It’s easy to understand
because in the greater scheme of things, what is
sought to be protected is the dignity of the
house. If a member, for disorderly behavior, has
been penalized with reprimand or fine, the
dignity or the tarnished image of the house is
restored and the member has been made to
learn his lesson. Importantly, in both cases, the
constituents are not deprived of representation.
In expulsion, what acts constituting “disorderly
behavior” would justify an expulsion? Can that
determination of Congress be subject to review
by SC? This is not an ordinary judicial
determination of disorderly behavior, most of this
are also with political considerations. In any
case, with expulsion, the dignity of the house will
be restored. The member may be expelled and
there may be denial of representation in the
meantime. But there is a chance to fill that up
and therefore, the deprivation will only be
temporary.
In suspension, there is another consideration
there. The Constitution does not allow that the
suspension shall exceed more than 60 days.
The reason for that is that suspension is like a
qualified expulsion. The member is still a
member, but he cannot represent his
constituents. So in effect, the constituents are
denied of representation in office. For him to be
allowed to go beyond 60 days would not really
be in issue of the member, but of the need of the
constituents to have representation in office.
That is why there’s a limitation of 60 days.
In the case of Santiago v Sandiganbayan (356
SCRA 636), there is an old law which is still a
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good law. Sec. 13 of RA 3019 provides that
once an Information is filed with the appropriate
court, Sandiganbayan included, the public
officer/accused can be placed under preventive
suspension. This case was filed because this
originated when Santiago was still the
Commissioner of Immigration and Deportation.
When the Information was eventually filed, she
was already a member of Congress. Question:
can the SB impose the preventive suspension
under Sec. 13 of RA 3019 on her? Santiago
argued that only her peers can suspend her. SB
said that she can be suspended as a member of
Congress under Sec. 13, regardless where the
case originated from. Since she was charged as
BID Commissioner, it does not mean that she
cannot be suspended from her current position.
Sec. 13 is clear in stating that once an
Information is filed, the public respondent shall
be suspended from his/her public office. SC said
that the difference lies in the fact that the
suspension in the power of Congress to
suspend its member is a final determination; it is
a penalty. The suspension under Sec. 13 of RA
3019 is preventive. It is not an imposition of a
penalty. Yes, only Congress can discipline its
members but Sec. 13 does not provide a
penalty; it provides for preventive suspension.
E. JOURNAL AND CONGRESSIONAL
RECORDS
ARTICLE VI, SECTION 16. (4) Each House
shall keep a Journal of its proceedings, and from
time to time publish the same, excepting such
parts as may, in its judgment, affect national
security; and the yeas and nays on any question
shall, at the request of one-fifth of the Members
present, be entered in the Journal.
This is discussed because we have come
across a lot of cases where 1) the SC has gone
through congressional deliberations to
determine what the intent is, to give meaning to
a law in question; 2) we have also come across
cases where there is a question of what was the
intent of Congress based on the clear provision
of a law. When a bill becomes a law [meaning, it
has passed 3 readings in both houses as
required for the passage of a bill and the final
draft has been signed by the responsible officers
of both houses (Senate President & Speaker of
the House), it has been certified (enrollment)
and submitted to the President, therefore
eventually becoming a law] and there is a
question on what was the intent of Congress
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based on a reading of the provisions, the
question is asked: which shall prevail, the
provisions of the law or the deliberations in
Congress?
The Constitution provides for 2 congressional
records: 1) the journal; and 2) the records. The
records are literally the transcription of what has
transpired in Congress while the journal is the
summary. When you read the journal, you will
see roll calls, agenda for the day, discussions.
There are portions there on what bill has been
passed today, what resolution has been
discussed/passed. In some cases that we have
come across where SC goes to the records or
the journals, these are in instances where there
is difficulty in determining what the
congressional intention was, based on a mere
reading of what the law is. But if the words and
phrases in the law is clear, SC will never go to
congressional records/journals. So when the
question is asked on which shall prevail between
the journal entry or the enrolled bill, we must ask
ourselves a question because both have
probative value, even conclusive ______ (34:15)
simply because they are official documents.
When a bill is enrolled, it is certified as the
official bill coming from both houses. SC cannot
go beyond the enrollment of the bill
____________ (34:35) they should not have
enrolled nor certified that to be the final copy.
That is beyond the courts. Same thing with the
journal entries. Since what appears in the
journals are initial recording/initial proceedings,
those are conclusive upon the courts. That’s
why in the old case of US v Pons (34 Phil. 729),
the journal entry read that the session ended
Feb. 28 but in reality, March 1 sila natapos. But
the journal entry read “The session ended 12MN
of February 28”. So, which shall prevail?
Testimonies of witnesses who stated that the
session went beyond? Because if that was
passed beyond February 28, that law could not
have been valid because it was a special
session. It would have passed more than the
period allowed for special sessions. The SC said
that if the journal says that it was passed before
the adjournment of the special session, such is
conclusive upon the courts. The courts cannot
go beyond it because it is an official document
and the courts must respect it.
(3)MATTERS REQUIRED TO BE ENTERED IN
THE JOURNAL
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(a) Yeas and nays on third and final
reading of a bill
ARTICLE VI, SECTION 26. (2) No bill passed by
either House shall become a law unless it has
passed three readings on separate days, and
printed copies thereof in its final form have been
distributed to its Members three days before its
passage, except when the President certifies to
the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the
last reading of a bill, no amendment thereto shall
be allowed, and the vote thereon shall be taken
immediately thereafter, and the yeas and nays
entered in the Journal.
(b) Veto message of the President
ARTICLE VI, SECTION 27. (1) Every bill passed
by the Congress shall, before it becomes a law,
be presented to the President. If he approves
the same, he shall sign it; otherwise, he shall
veto it and return the same with his objections to
the House where it originated, which shall enter
the objections at large in its Journal and proceed
to reconsider it. If, after such reconsideration,
two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent,
together with the objections, to the other House
by which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of
that House, it shall become a law. In all such
cases, the votes of each House shall be
determined by yeas or nays, and the names of
the Members voting for or against shall be
entered in its Journal. The President shall
communicate his veto of any bill to the House
where it originated within thirty days after the
date of receipt thereof; otherwise, it shall
become a law as if he had signed it.
(c) Yeas and nays on the repassing of
a bill vetoed by the President
(d) Yeas and nays on any question at
the request of 1/5 of members present
ARTICLE VI, SECTION 16. (4) Each House
shall keep a Journal of its proceedings, and from
time to time publish the same, excepting such
parts as may, in its judgment, affect national
security; and the yeas and nays on any question
shall, at the request of one-fifth of the Members
present, be entered in the Journal.
(e) Summary of Proceedings
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By themselves, both the journal entry and the
enrolled bill are conclusive upon the courts. If
the matters are required by the Constitution to
be placed/entered in the journal, as to those
things, the journal shall prevail. But when the
question is on what the law has provided, it
should be the enrolled bill (that eventually
became a law) that should prevail. It should not
be the journal because whatever may have been
recorded/entered in the journal (deliberations),
they might have been the final draft but that is
not the bill eventually certified and signed. The
official copy of the enrolled bill is that which
bears the signatures of those responsible
officers and which eventually would bear the
signature of the President.
(4) Journal Entry Rule v. Enrolled Bill Theory
(it is not competent for the appellants to
show from the journals that the
enrolled bill contained a section that does
not appear in the enrolled act in the
custody of the State Dept.”)
(5) Congressional Record
Going back, if there are cases that the SC would
go to the journal/recordings, it would be to give
them a better understanding of what has been
discussed when there is difficulty ascertaining
what the law has provided. Because if the law –
on its terms – are clear, there should be no
reference to the journal entries.
5. SESSIONS
(1) REGULAR SESSIONS
ARTICLE VI, SECTION 15. The Congress shall
convene once every year on the fourth Monday
of July for its regular session, unless a different
date is fixed by law, and shall continue to be in
session for such number of days as it may
determine until thirty days before the opening of
its next regular session, exclusive of Saturdays,
Sundays, and legal holidays. The President may
call a special session at any time.
ARTICLE VI, SECTION 16. (5) Neither House
during the sessions of the Congress shall,
without the consent of the other, adjourn for
more than three days, nor to any other place
than that in which the two Houses shall be
sitting.
(2) SPECIAL SESSIONS
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ARTICLE VI, SECTION 15. The Congress shall
convene once every year on the fourth Monday
of July for its regular session, unless a different
date is fixed by law, and shall continue to be in
session for such number of days as it may
determine until thirty days before the opening of
its next regular session, exclusive of Saturdays,
Sundays, and legal holidays. The President may
call a special session at any time.
Art. VII, Secs. 10-11
ARTICLE VII, SECTION 10. The Congress shall,
at ten o’clock in the morning of the third day
after the vacancy in the offices of the President
and Vice-President occurs, convene in
accordance with its rules without need of a call
and within seven days enact a law calling for a
special election to elect a President and a Vice-
President to be held not earlier than forty-five
days nor later than sixty days from the time of
such call. The bill calling such special election
shall be deemed certified under paragraph 2,
Section 26, Article VI of this Constitution and
shall become law upon its approval on third
reading by the Congress. Appropriations for the
special election shall be charged against any
current appropriations and shall be exempt from
the requirements of paragraph 4, Section 25,
Article VI of this Constitution. The convening of
the Congress cannot be suspended nor the
special election postponed. No special election
shall be called if the vacancy occurs within
eighteen months before the date of the next
presidential election.
ARTICLE VII, SECTION 11. Whenever the
President transmits to the President of the
Senate and the Speaker of the House of
Representatives his written declaration that he is
unable to discharge the powers and duties of his
office, and until he transmits to them a written
declaration to the contrary, such powers and
duties shall be discharged by the Vice-President
as Acting President.
Whenever a majority of all the Members of the
Cabinet transmit to the President of the Senate
and to the Speaker of the House of
Representatives their written declaration that the
President is unable to discharge the powers and
duties of his office, the Vice-President shall
immediately assume the powers and duties of
the office as Acting President.
Thereafter, when the President transmits to the
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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 the President; otherwise, the President shall
continue exercising the powers and duties of his
office.
The Constitution says that the President may
call a special session at any time. But this is not
literally anytime because if Congress is in
regular session, the President cannot call any
special session within the regular session. If the
President should need Congress to attend to a
matter upon its request while Congress is in
regular session, the President should certify a
bill as urgent or send his representative. There
is actually an executive liaison for the legislative
branch of government.
------END----------
(3) JOINT SESSIONS
(a) Voting separately
Art. VII, Sec. 4 (Choosing the
President)
ARTICLE VII, SECTION 18. (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.
ARTICLE VII, SECTION 4. The President and
the Vice-President shall be elected by direct
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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 reelection. 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
consecutive 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 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
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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.)
Id. Sec. 11, Par. 4 (Determining the
President’s temporary disability)
ARTICLE VI, SECTION 16. (4) Each House
shall keep a Journal of its proceedings, and from
time to time publish the same, excepting such
parts as may, in its judgment, affect national
security; and the yeas and nays on any question
shall, at the request of one-fifth of the Members
present, be entered in the Journal.
Id., Sec. 9 (Confirming the
nomination of a Vice-President)
ARTICLE VII, SECTION 9. Whenever there is a
vacancy in the Office of the Vice-President
during the term for which he was elected, the
President shall nominate a Vice-President from
among the Members of the Senate and the
House of Representatives who shall assume
office upon confirmation by a majority vote of all
the Members of both Houses of the Congress,
voting separately.
Art. VI, Sec. 23(1) (Declaring a state of war)
ARTICLE 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.
Art. XVII, Sec. 1(1) (Amending the
Constitution)
ARTICLE XVII, SECTION 1. Any amendment to,
or revision of, this Constitution may be proposed
by:
(1) The Congress, upon a vote of three-fourths
of all its Members; or
(2) A constitutional convention
(b) VOTING JOINTLY
Art. VII, Sec. 18 (to revoke or extend martial
law or suspension of privilege of habeas
corpus)
ARTICLE VII, SECTION 18. The President shall
be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes
necessary, he may call out such armed forces to
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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.
Aug. 5, 2015- Aning
ELECTORAL TRIBUNAL
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Art. VI Section 17. The Senate and the House
of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members
of the Senate or the House of Representatives,
as the case may be, who shall be chosen on the
basis of proportional representation from the
political parties and the parties or organizations
registered under the party-list system
represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman.
Section 19. The Electoral Tribunals and the
Commission on Appointments shall be
constituted within thirty days after the Senate
and the House of Representatives shall have
been organized with the election of the
President and the Speaker. The Commission on
Appointments shall meet only while the
Congress is in session, at the call of its
Chairman or a majority of all its Members, to
discharge such powers and functions as are
herein conferred upon it.
Angara vs. Electoral Commission 63 PHIL
139 (1946) - The electoral tribunal was first part
of the decision in this old case where under the
1935 constitution the electoral tribunal now
which was electoral commission before was not
part of the constitution. In the 1987 constitution,
specifically it is provided that each house shall
have an electoral tribunal which shall be
composed of 3 justices. The SC has 6 members
of the house which 6 positions shall be filled up
based on proportional representation.
As it was in the case of ANGARA, the
issue on the authority and jurisdiction of the
commission, the present Constitution makes the
electoral tribunal the sole judge of all issues
relating to elections, return, and qualifications of
members of Congress.
Now in the 2005 case which is part of
the rule – was reiterated in the 2013 case of
Tanada vs. COMELEC 103 PHIL 1051 (1957),
the SC held that
“the term "election" refers to the
conduct of the polls, including the listing of
voters, the holding of the electoral campaign,
and the casting and counting of the votes;
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"returns" refers to the canvass of the returns and
the proclamation of the winners, including
questions concerning the composition of the
board of canvassers and the authenticity of the
election returns; “
Of course this is largely amended by
the automated election. Remember that we no
longer have election returns, canvassing of
votes because once the PCOS machine is
closed and the procedure for the counting and
transmittal is commenced. The issue will only
perhaps be from the proclamation of the winner.
“and "qualifications" refers to matters
that could be raised in a quo warranto
proceeding against the proclaimed winner, such
as his disloyalty or ineligibility or the inadequacy
of his CoC.”
So any questions relating to those with
respect to a member of congress shall be within
the sole jurisdiction of the Electoral Tribunal.
NATURE OF FUNCTION
Now the nature of the function of the
Electoral Tribunal is found in the provision under
Article VI in the Legislative department. It is not
legislative in character even if there are more
members of Congress than members of the
court, it is acting as a judge.
In relation to that the SC had the
occasion in the previous cases to characterize
the nature of its function in relation to its
independence. That being the sole judge, the
members enjoy security of tenure. While
members of the ET sit there by reason of the
nomination or appointment of their respective
parties, considering that it is by proportional
representation, they do not own loyalty to the
party when it comes to deciding the cases.
As sole judges, they shall decide issues
before it based from the evidences presented by
the parties. They are not bound by the rules of
the parties and they can only be removed for
valid reasons of and from the party nominating
or appointing them. Of course party disloyalty is
a valid ground for removal. But that party
disloyalty must not include the person’s refusal
to vote or decide the case based on the
demands of the parties. The legal basis for party
disloyalty as basis for removal could be anything
based from the Constitution and by-laws of the
party other than that voting against the interest
of the/ a party or of a party-mate.
The jurisdiction of the ET is almost
always attached to the issue on the jurisdiction
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of the Comelec because the Comelec has,
under the same Constitution, the jurisdiction
over the issue including the issue of
qualifications of candidates who would
eventually become members of the Congress.
When is a person considered a member of
Congress so that the ET will have
jurisdiction over the case and will divest the
Comelec of the jurisdiction?
Romualdez vs. Comelec (1995), the SC simply
placed it that the person has been elected, has
been proclaimed, the person has taken his oath
and that he has assumed his office.
Subsequent decisions in the case of Vinzons-
Chato vs. Comelec 689 SCRA 107 and Limkat
Chiong vs. COMELEC , Gonzalez vs
Comelec, somehow modified the last by saying
that the term of office has begun which is
normally per Constitution, noon of June 30
following the election. So even if technically he
has not assumed his office but the term of office
has begun or the candidate has won, or has
been proclaimed, the Comelec is ousted of
jurisdiction.
Now in 2002 we have the case of Codilla vs. De
Venecia which was more pronounced in the
2013 case of Reyes vs. Comelec 708 SCRA
197 because this involves a son of a sitting SC
justice, Justice Velasco, where the SC as early
in the case of CODILLA made mention that the
proclamation must be valid. So elected, won,
validly proclaimed and the term of office has
commenced. That was not new, but then again
in the 2013 case of REYES because it involved
the son of a sitting justice, generally the public
has taken exemptions to it. Kaya nanalo yan
kasi anak ni Justice Velasco.
But again we have the case in 2002 as
compared in the 2013 case, the proclamation
must have to be valid. But in the case of
CODILLA where the proclamation was
questioned before the Comelec before the term
of office has begun, the SC said there was no
valid proclamation and so the issue remains with
the Comelec even if the term of office has
begun.
So the question in the case of REYES were
these:
Was he validly proclaimed? The SC said that
NO because the Comelec En Banc had already
decided the case that a winner who has
“proclaimed” lacked residency and citizenship.
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So there was no valid proclamation to begin
with.
Has she validly taken her oath? They made
mention of that rule in the HOR that members
shall take their oath – either collectively or
individually before the Speaker in an open
session.
So you technically have an oath before a
barangay captain like what the president did. For
members of congress, it must be before the
speaker in open session. So the oath taking that
you must have been aware of certain members
of congress taken before a Brgy captain. These
are only for show.
And the 3rd question is asked, Has the term of
office has started? The SC said, the petition was
filed on June 7, when the term of office has yet
to begin because the term of office begins on
noon of June 30. So Comelec has still
jurisdiction and not the ET.
Jalosjos vs. Comelec 674 SCRA 530 (2012) -
The issue is whether the HRET has jurisdiction?
The SC said that YES because in the meantime
the petitioner has taken his oath and his term of
office has commenced.
Tanada vs. Comelec 708 SCRA 188, this
involves an issue in declaring a candidate as
nuisance by the Comelec but the despite the
decision of the Comelec to declare the
candidate as nuisance candidate, his name was
not taken off from the ballot. And so there were
still votes cast in his favor. Eventually, Tanada
lost. He wanted the votes for a certain Alvin
John Tanada be counted for him. So he filed a
petition for protest before the HRET:
1. To annul the proclamation of the winning
candidate.
2. And to have the votes cast in favor of the
nuisance candidate be counted for him.
The SC said that it can no longer do it
maintained in the Comelec. It should be with the
HRET.
JUDICIAL REVIEW OF THE DECISIONS OF
ELECTORAL TRIBUNALS
The final item with respect to the HRET
is to the issue of judicial review. As always, the
decisions of any court, tribunal or quasi-judicial
body including the ET, if promulgated and
issued in its limited authority or jurisdiction
provided for by law, that would be beyond the
review of the Courts.
And as always as an exception, if there
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is grave abuse of discretion amounting to lack or
excess of jurisdiction, the decisions, including
that of the ET, will be subject to judicial review.
So if the petitioner can make out a case that the
ET has rendered a decision in grave abuse of
discretion, the decisions of the ET can be
subject of judicial review.
COMMISSION ON APPOINTMENTS
Next item is your COMMISSION ON
APPOINTMENTS. There is not much there
except in relation to the discussion on the nature
of its powers. It is purely executive in character
because this is in relation to or in conjunction
with the appointing powers of the President. The
limited authority of the CoA is to confer or reject
certain appointments made by the President for
those positions falling under the first sentence of
Sec 16 of Article VI.
The other thing there is with respect to the
actions of the CA on any confirmation asked of
it, whether it is subject to the rules.
1. What would happen if the appointment
seeking confirmation is by-passed?
Meaning the congress has adjourned
without acting on it, can the appointment
be renewed? The answer is YES. If the
appointment is continued or is not acted
upon continuously by the CoA, then the
President can just make reappointments
ad infinitum.
But if the appointment or confirmation sought is
rejected officially by the Commission of the
Appointments, the appointment for that position
can no longer be made by extending another
appointment. That will have to be considered as
fully acted upon or rejected by the CA.
But can that same person, whose appointment
to a particular position; for example Secretary of
Agrarian Reform, which has been rejected by
the CA, can that person be appointed to another
position as Department Secretary? The answer
is YES because the rejection in one does not
mean that he is not capable of appointment in
other positions in the cabinet.
This is what happened to Sec Angelo Reyes.
After his tenure as chief of staff, he was
appointed to a position in the cabinet and his
confirmation was always denied until he ended
up to the Dept. of Energy where he eventually
killed himself. That is another story. But that is
an example of a rejected confirmation which
does not prevent the president from extending in
another appointment to another position
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requiring CA confirmation.
2. Can the rejection or grant or
confirmation by the CA be subject to
judicial review? This is where there is a
thin line as to what is allowable for
judicial review or what i not. It is clear
with respect to the ET that it being a
“court” being the sole judge, it is subject
to all applicable rules on proceedings
most especially on evidence.
We have seen that in the old case of ARROYO,
where the question was based on whether or not
the ET validly referred the decision against
Joker Arroyo. The SC said YES because even
the ET violated its own rules when it considered
evidence not even part of the records.
But in the exercise of power or discretion of the
CA, we are simply guided by the political
affiliations or views of those composing it. The
composition which is 12 from the lower house
and 12 in the upper house and the Senate
President acting as the chairman who will not
vote unless there is a tie. And usually, those
who are there are with the ruling party. Again,
because of the concept of proportional
representation, the more numerous the
members of the party in the house, the more
membership they have in the CA
So, is this rejection or confirmation subject
to judicial review? Rejection probably, it cannot
because we don’t like it. We don’t think that he
do it. But what about confirmation? If there is no
law requiring any special qualification for a
position requiring a CA confirmation, if the CA
confirms it, it cannot be subjected to judicial
review.
But if a position requires or a law requires a
special qualification, then a confirmation without
that law being satisfied can be considered as in
grave abuse of discretion. If you look at the
positions in the cabinet, even if you read your
EO 292 or the Administrative Code of 1987,,
what are the qualifications of Dept Secretary? In
this administration, it is kaibigan, kabarilan o
kaklase. Nothing more. Because your EO 292
does not specifically provides the necessary
qualifications for a Dept. Secretary or other
members of the Cabinet. So you can just be a
friend.
But those in the Foreign Service not the
ambassadors, because these are “special
positions” and they are normally given to retired
Army officers and retired PNP officers para dili
sila mag gubot, tagaan sila ug position. That has
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been the object since Cory became the
president. In any case, lower than the
ambassador position, you are in the Foreign
Service, you must have passed the foreign
service exam. You cannot be appointed to a
Foreign Service position through confirmation
with rank without passing the exam. Otherwise,
if they confirm you, that would be grave abuse of
discretion. Again, other than a legally required
qualification the CA’s confirmation is beyond
judicial review.
POWER OF CONGRESS
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.
LIMITATIONS ON THE LEGISLATIVE POWER
 Substantive limitations
o Express subtantive limitations
Art III (Bill of Rights)
Art VI Secs 25 & 28
Art. XIV Sec. 4(3)
Art. VI Sec 29-31
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 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
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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 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
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.
‘4. No law granting any tax exemption shall be
passed without the concurrence of a majority of
all the Members of the Congress.
Section 29.
‘1. No money shall be paid out of the Treasury
except in pursuance of an appropriation made
by law.
‘2. 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
institution, or government orphanage or
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leprosarium.
‘3. 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.
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. No law granting a title of royalty or
nobility shall be enacted.
Art. XIV Sec 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.
Substantive limitations are all those provided
expressly in the Consitution. You have Article VI
the entire bill of rights, Art VI, Sec 25.
BELGICA VS OCHOA 710 SCRA 1 (2013), this
is your PDAF and the case of ARAULLO VS.
AQUINO (2014), this is your DAP. Section 25 is
the provision. There are 2 specific provisions
there with respect to the power of the congress
to pass appropriations bill.
Section 25(2) refers to the provisions in the
appropriations bill which the Constitution
requires to relate to a particular appropriation of
sum of money. The words and phrases in the
appropriations bill must have to refer to a
particular appropriation of sum of money for a
certain expenditure and it cannot go beyond
that. That is where the so called DOCTRINE OF
INAPPROPRIATE PROVISION has come
about. If the words and phrases do not comply
or conform with Section 25(2) of Art.6 that is
inappropriate provision and that can be vetoed
as an inappropriate provision.
Then section 25(5) is your transfer of funds and
where the case of ARAULLO VS. AQUINO
(2014) was largely decided by the SC where the
SC said that transfer of funds can only be had if
the ff. requirements in the provisions are
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complied with.
(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
(3) The purpose of the transfer is to
augment an item in the general
appropriations law for their respective
offices.
So basically there must have to be savings from
their department and the transfer is within the
department. This is where the SC came with the
term CROSS BORDER TRANSFER.
1. Whether there was a law authorizing
the transfer of the funds?
Section 25(5), the SC said, this is not a
self executing provision. So there
must be a specific law, either a law by
itself or a provision in the general
appropriations law because this is not
self-executing. So generally it mentions
that the General Appropriations Act is
that law authorizing the transfer of
funds.
2. Was there actual savings from which
to source the DAP?
The SC said, there were no actual
savings because savings is a technical
term.
There is savings when generally any one of
these things happens:
1. When the project is discontinued because it
is no longer feasible.
2. An appropriated project has been completed
and there is actual savings.
In the case of the DAP what they did
was just to transfer. They did not disburse the
appropriated funds for the projects intended and
transferred. So the SC said that there were no
actual savings.
3. Assuming there were savings were the
same was used to augment an item
already in the appropriations for that
particular office? The SC said that there
was even transfer to other departments
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because what the executive did was to
pool the “savings” and then transfer
them to wherever. Ilo-ilo Convention
Center is one of them; funded by the
DAP by the executive to the Congress.
In the time when the case was before
the SC, there were news reports that the
judiciary was also a recipient of the
cross border transfers.
The news report was not accurate. To
be accurate about it, when the judiciary needs
infrastructures, these are high valued properties,
they are not placed in any budget or
appropriations for the judiciary.
Let us say we have 5 million budget for
the court houses for the judiciary. That cannot
be placed in the judiciary. Why? Because of the
constitutional limitation that the appropriations
for the judiciary cannot be diminished.
If you put that 5 million in the judiciary
this year for the halls of justice nationwide, that 5
million cannot be taken out next year even if all
the halls of justice were already constructed and
completed. All the halls of justices are funded in
other departments. DOJ this is common or the
DPWH because again if it is included in the
judiciary, that cannot be taken out.
Remember the issue of the JDF-
Judiciary Development Fund. Every time you
file a case, you pay a portion to the JDF. The
JDF goes to the judiciary; and the SC, especially
the Chief Justice will have the discretion how or
where to spend it for. There was this issue that
some of these funds were used to refurbish the
SC house in Baguio. They needed new furniture
and air conditioning. Some sectors would want
to look into the JDF. The problem is the JDF
forms part of the appropriations for the Judiciary.
Can that be taken by law?
The answer is NO, it cannot be taken.
So they were saying that they will pass a law
taking the JDF away. Can they do that? The SC
is saying that NO you cannot do that because
that is our appropriation.
So there is really cross border transfer
because it would seem to the ordinary person
that the executive is funding court houses. But
accurately, that is part of the appropriations of
the executive department. It has not been
transferred to the judiciary. And the SC did not
respond to it because it will only show the
ignorance of the lawyers of the palace of what
cross border transfer is all about. Yes, it was for
the benefit of the judiciary but they were
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appropriated within the Executive department.
They were not actually transferred from the
Executive to the Judiciary.
Aug. 11, 2015- Rjay
SUBSTANTIVE LIMITATIONS
LIMITATIONS ON THE LEGISLATIVE POWER
(1) SUBSTANTIVE LIMITATIONS
(a) EXPRESS SUBSTANTIVE LIMITATIONS
Recap: We have discussed in part the case of
Araullo vs Aquino III 728 SCRA 1 (2014) with
respect to Art. VI Section 25 in relation to
paragraphs 2 and 5 on cross boarder transfers
and the constitutional definition of what a
provision in an appropriations bill should be and
that has paved way to what the Supreme court
as referred to as the doctrine of inappropriate
provision.
Art. VI, Section 29 (1) No money shall be paid
out of the Treasury except in pursuance of an
appropriation made by law.
Case in point: Belgica vs Ochoa 710 SCRA 1
(2013) regarding PDAF-
Six reasons why PDAF has been declared as
unconstitutional one of which was the so-called
SYSTEM OF INTERMEDIATE
APPROPRIATIONS - when the PDAF
provisions in its previous form or previous
General Appropriations Act (GAA), are in the
form of lump sum appropriations, the practice of
allowing individual members of congress to
identify the specific appropriations out of the
lump sum, the project beneficiary and the project
fund or amount that created the system of
intermediate appropriations. The Supreme Court
held that it violates Section 29 (1), because it
allows individual members of Congress to
exercise power of appropriation which is not
granted to them individually. It should be
Congress and that when Congress had allowed
the allocation of that sum of money, the
allocation must have to relate to a specific
appropriation of sum of money as required
under Section 25 (2).
Art. VI, Section 29 (2) 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, or
other religious teacher, or dignitary as such,
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except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to
any penal institution, or government orphanage
or leprosarium.
BQ: No public money shall be paid out for priest,
minister, or other religious teacher except if they
have been employed in those government
institutions.
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.
This provision is the appellate jurisdiction of the
Supreme Court – it cannot be increased without
its concurrence. That has been the subject of an
earlier case involving RA 6770 (The law creating
the Office of the Ombudsman) which provided
for an appellate jurisdiction with the Supreme
Court which was enacted by the Congress
without the prior concurrence or approval. The
Supreme Court held that it is an unconstitutional
provision.
Sec. 31- there’s nothing much to it.
(b) IMPLIED SUBSTANTIVE LIMITATIONS
(1) PROHIBITION AGAINST DELEGATION OF
LEGISLATIVE POWER
Correctly understood, must not to relate to all
the powers of government. We all understand
that the present set-up of our government, the
three branches are already exercising
delegating authority from the people which is the
source of sovereign authority. Because of the
difficulty in everybody exercising such powers
we have, under our system delegated it to these
three branches. The reason why it is most
discussed in legislative power is because it is
where of the most of the cases have been filed
and decided.
In the Judiciary there is not much discussion on
delegated authority because only our courts
exercise at least in the constitution, judicial
power. What the other tribunals exercise is what
we know as the quasi-judicial power which are in
relation to the power to execute and implement
the law. In the limited authority of these tribunals
to determine which has a better right in case
there is a conflict in relation to a law, it is just in
connection with their implementation or
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execution of the laws. It has nothing to do with
judicial power as defined in Section 1 of Article
VIII.
Query: Whether several practices like mediation
procedure or the Alternative Dispute Resolution
(ADR) which are done outside of court are
delegated exercise of judicial power.
Answer: No, because judicial power strictly
construed is exercised only by A SUPREME
COURT AND SUCH OTHER LOWER COURTS
AS MAY BE PROVIDED FOR BY LAW (Section
1, Article VIII)
In the executive branch, the delegation is in
what we know as Doctrine of Qualified Political
Agency because executive power is lodged
solely in what person - the President. The
system allows the president to delegate
executive exercise of executive power to his so-
called alter egos and these are members of the
cabinet. In fact the Supreme Court decided in
several cases that the President can exercise or
delegate almost all except few powers which
include the power to declare Martial Law or
Suspend the writ of Habeas Corpus and of those
of similar import or importance. All the rest, even
the signing of an enrolled bill into a law can be
delegated to the executive secretary because
the president is not expected to exercise all that
is covered by what we know as executive power.
In legislative power, the rule has always been
the power to make, amend, or determine what
the law is, is always cannot be delegated. It is
non-delegable in the language of several cases.
What cannot be delegated is the authority to
make the laws and to alter or repeal them.
However, congress can define what job must be
done, who is to do it, and what is the scope of
this authority so for so long as there is sufficient
standards by which the delegate may be able to
exercise discretion in the execution or
implementation of the delegated authority, then
the delegation may be allowed.
In delegation, there are two tests that have
repeatedly been mentioned by the courts:
i) sufficiency standards test
ii) completeness of statute test
It is almost always in the most cases are
discussed this sufficiency of standards test
because while completeness of statute test is
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the ideal, what congress has done at least in
more recent history is to delegate it under
sufficiency set of standards.
Completeness of statute has been characterized
as from the statute enacted by congress, it is
complete in all its details. There is nothing much
the delegate can do but to implement is. But
because of modernization of life, the complex is
brought about by certain acts or activities which
may be covered by legislation that congress
cannot cope with, it has somehow delegated,
the determination to specialize administrative
agencies as to filling up the details, and so they
delegate the power and allow the delegate to fill
in the details of implementation provided that
scope or range of the authority is limited and this
cause the sufficiency of standards test.
While ideally, the standards must have to be in
one law, the classic example there covered by
the case is the amendment of the Labor Code to
terminate minimum wages. Before it was by law
through the president under the power of the
president to legislate but it has been somehow
very difficult to come up with minimum wage
orders from that annual basis. That is why the
Labor Code has been amended to allow the
Regional Wage Board (RWB) to determine. The
Article in the Labor Code now which grants the
RWB the power is an example of a legislation
which provided for all the standards by which the
delegate can fix the minimum wages per region.
But that cannot be done in all legislations. You
know how congress is, and you don’t expect
them to cover all the details of the
implementation.
It is possible that the standards of the delegate
are met and are considered sufficient if there is
an examination of several laws on the same
subject matter which would necessarily limit the
delegated authority. Otherwise stated, it need
not be in one law. There can be several laws
provided for some or several standards on the
same delegated authority which if they can all
together will be considered as sufficient to have
limited the power of the delegate to exercise
what has been delegated.
Cases in point: Belgica vs Ochoa 710 SCRA 1
(2013) The Supreme Court used as one of the
basis of six reasons why PDAF is
unconstitutional is it violated the doctrine of non-
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delegation of legislative power. The intermediate
appropriations has been used again and this
time in the context of added valid delegation.
When congress has appropriated that lump sum
amount or the PDAF, it granted delegated
authority to the individual members of the
congress to actually determine the project
beneficiary and the project fund, which
according to the Supreme Court is an invalid
delegation. Congress cannot delegate the
implementation of the appropriated amount to
the members of the congress. In the said case, it
cited the case of ABAKADA vs Purisima 562
SCRA 251 (2008) where it made mention of the
doctrine of INWARD TURNING LEGISLATION.
Inward turning legislation has been asked in the
bar and the question involves the power of
congress on what is known as oversight
functions. Congress has this oversight functions:
(i) Power of scrutiny which is the
budget hearings the question hour
(ii) Congressional investigations and
inquiries in aid of legislation
(iii) Legislative supervision
In budget hearings, they will call the heads of
the departments and ask them why the
department is asking for so much budget. You
may have been hearing in the news that the
3trillion budget for next year has now been
subjected to several budget hearings and it will
continue until the end of the year for it to be
passed before the year's end and that is part of
legislative scrutiny.
In question hour, it allows members of the
congress by committee to call heads of the
departments to determine and ask questions on
how the department is practically performing.
Legislative supervision, there are two ways by
which the congress can do that:
(i) First is the allowable one. You may
have come across certain legislation
which creates the so-called
congressional oversight committee.
Congressional oversight is normally
had when there is a need for
congress to ensure that the law it
has passed is properly
implemented. Perhaps one of the
more common or known law to you
which has a congressional oversight
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is the oversight committee on
Overseas Voting. You know election
in the Philippines is every three
years. The members of the
oversight committee on the
absentee overseas voting act will
have to travel all over the world to
make sure that our Filipino voters
are voting properly. So wherever
there is a Filipino who is registered
under the act who will vote,
members of the oversight committee
will travel. So that is the allowable
congressional for legislative
supervision.
(ii) It is the inward turning legislation
which Supreme Court said is
unconstitutional. When congress
delegates the power, it delegates
the power fully - meaning it can
either take it back or leave it to the
delegate to implement. In
ABAKADA vs Purisima 562 SCRA
251 (2008), the factual setting was
that congress allowed an
administrative body to enact the
implementing rules and regulations
with respect to the Attrition Law.
However, congress said, before this
IRR would be implemented it has to
have prior congressional approval
and that the Supreme Court said is
inward turning legislation. When the
power to propose or promulgate IRR
is delegated, it fully delegates it. It
cannot be subjected to prior
approval of congress for its efficacy
because supposedly must have to
provide for the standards and if the
standards are met then it should be
effective pursuant to the delegated
authority.
Same here, when congress enacted the PDAF
provision, it fully authorized that delegate to
execute or implement that budget. In our
system, there are four phases of our budget:
(i) Budget Planning - it is normally with
the president where all offices of
government including the judiciary
and the congress will submit how
much they would need. The
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president will prepare the basis for
the general appropriations bill which
is the national budget for next year.
(ii) Budget authorization - It will go
through congress and that is the
budget authorization or legislation
phase.
(iii) Budget execution - Once it gets out
of congress, supposedly it will be
implemented by the delegate and
that delegate is the executive
through the DBM. What happen in
our PDAF is that it is still individual
members of congress who will
actually determine and approve and
implement the lump sum
appropriation to each and every one
of them by identifying the project
beneficiary and the project fund
which again is in violation of non-
delegation of powers.
(iv) Budget accountability
Case in point:
Disini vs Secretary of Justice 716 SCRA 237,
this is Cyber Crime prevention Act of 2012.
There are many provisions there and the only
question on violation of non-delegation of power
would be Section 24 - the creation of the
Cybercrime investigation and/or Center.
According to Disini, congress invalidly delegated
the power to the Center to formulate the national
cyber security plan because there is no sufficient
standards as may be gleaned from the law. The
Supreme Court held that there is sufficient
standards because the term cybercrime has
been defined in Section 3 and so the authority of
the Center to make a national plan, cyber
security plan, must have to be consisted with the
definition of what cybercrime is. And because
the definition is so explicit, that should be
sufficient to meet the requirement of sufficient
standards in the delegated authority.
EXCEPTIONS TO NON-DELEGATION OF
LEGISLATIVE POWER
(i) Article VI Sec 23 (2) Section 28 (2):
Flexible Tariff Clause of the
President
(ii) Section 32: Delegation to the
People - query: is the power of the
people under initiative and
referendum a delegated power or is
it an inherent power which has not
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been given to congress to make?
Because sovereign power emanates
from them and when the constitution
delegated the power to congress to
legislate, there is a limitation or at
least non-full delegation to congress
because part of that has been
reserved by the people in their
sovereign capacity. But because
Section 32 has required congress to
enact an enabling law, meaning,
without any enabling law, the power
to legislative under initiative and
referendum cannot be exercisable; it
is in that sense that it this a
delegated authority. But correctly
understood in the understanding of
sovereign power, this is power
reserved by the people to
themselves. The entire scope of
legislative powers have been
delegated to congress but because
it also authorizes congress to enact
a law for them to exercise it, it is in
that context that this is supposed to
be considered as delegated
authority.
DELEGATION TO LOCAL GOVERNMENTS
Even before the local government code was
enacted, it has been an accepted principle or
rule that the power of local government to
legislate has been granted to them by time
immemorial practice. The reason is simple, it is
because of the fact that legislative assemblies or
councils are in the best position to determine
what is needed for local legislation that congress
in the national scape of things will not be able to
determine what the local demands are in terms
of legislation. It has been allowed ever since that
local councils or assemblies have been
extended the power or given the power or
allowed to exercise the power of legislation.
Under RA 7160, under the general welfare
clause (Section 16) grants two powers to local
government units:
(i) Specific powers that congress may
delegate to it every so often
(ii) General grant of power to local
assemblies to promulgate
ordinances for the promotion and
protection of general welfare of its
constituencies.
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In Umali vs COMELEC 723 SCRA 170 (2014),
at point is Art 10, Section 10 on the creation of a
highly urbanized city. Catanduanes city was
subjected to a plebiscite to be considered as a
highly urbanized city to be taken out from the
province of Nueva Ecija. There was question
raised on who should vote on the plebiscite -
should it be only those in the Cabanatuan City or
should it be the entire voting population of
Nueva Ecija. Part of the discussion was on the
delegation of the power to declare a city as
highly urbanized because Section 10, Article X
reads:
Section 10. No province, city, municipality, or
barangay may be created, divided, merged,
abolished, or its boundary substantially altered,
except in accordance with the criteria
established in the local government code and
subject to approval by a majority of the votes
cast in a plebiscite in the political units directly
affected.
So the question boils down to what are those
political unit or units directly affected. The
Supreme Court took notice that the local
government code provisions provide as follows:
That Section 453 mandates that it is the duty of
the president to declare a city as highly
urbanized after it has met the minimum
requirements prescribed in Section 452 of the
local government code. Also, under Section 10
of the local government code, there shall be a
plebiscite in order that the creation, division,
merger, abolition, or substantial alteration of
boundaries shall be effective. So Supreme Court
mentioned that the power to declare a city as
highly urbanized based on Section 453 in
relation to Section 10 of the Local Government
Code has been delegated to the President under
Section 10, Article 10 of the Constitution. The
answer as to who are to vote, it is the entire
voting population of the province because they
are also affected. When a city is to be converted
into a highly urbanized city, there will be some
economic and political changes in the province.
If it will be taken out from the authority of the
province with respect to taxation, political
boundaries, residents of highly urbanized cities
do not vote in the province.
(2) PROHIBITION AGAINST PASSAGE OF
IRREPEALABLE LAWS
The Congress or the current legislative body
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must have the power to amend, alter, and repeal
existing laws. Previous or prior congresses
therefor cannot pass a law which cannot be
repealed or amended because the general
legislative power or plenary legislative power
includes not only the power to make or pass
laws, but also to amend, repeal, or supersede
existing laws.
(2) PROCEDURAL LIMITATION
You know already the 3-3-3 Rule: Three (3)
readings on Three (3) separate days, furnishing
of printed copies at least Three (3) days before
the third and final reading. The only exception is
when there is a certification of urgency where
the Supreme Court has ruled that the passage
need not strictly comply with the 3-3-3 Rule. Of
course there would be 3 separate readings but
they not necessarily on separate days. There
can be reading now, reading of the title and the
second reading thereafter where they will
discuss the provisions, argue on it, debate and
eventually go to the 3rd and final reading then
there will be voting which can be had in one
setting or one day.
Query: Whether they can do away with the
furnishing of printed copies.
Answer: Yes, the furnishing of printed copies
which is required to be there 3 days before the
third and final reading can be dispensed with but
the printed copy, the document itself, cannot be
because what is there to certify and enroll for
submission to the president for his signature.
While in one case, there seems to be an opinion
coming from the Court, though it is obiter, that
he can do away even with the printed copies, I
don't think that can be done away with because
what is there again to certify, you cannot submit
to the president an oral approved bill and the
president will also orally approve it and what is
orally approved will be published :). What can be
published if it is orally submitted and orally
approved. So it must be printed at the very least.
Matter in point: Third House of Congress - this
has something to do with what we know as
practice and policy by tradition on the creation of
bicameral congress committee. When the two
versions of the bill coming from both Houses are
not reconciled or could not be harmonized, there
may be a need to constitute a bicameral
conference committee which is normally
composed of the respective heads of each
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house and the principal authors of the bill
coming from both houses. Their primary task is
to come up with a harmonized version of the
conflicting versions of the bill in the hope that it
will be certified and enrolled. For practice, what
is done is they will redraft the bill which will be
acceptable to both houses and they will come up
with the final version of the bill which is referred
to as the BICAMERAL CONFERENCE
COMMITTEE REPORT. The report which is
actually the final draft of the bill will then be
subjected to voting by both houses. The voting,
however, will not follow regular rule on voting.
We have made mention on that with respect to
the journal entry that the yays and the nays on
the third and final reading of the bill will have to
be entered to the journal. In this cases where
the approval of the bicameral conference
committee report was raised, they were voted
not with the usual name calling of the roll for the
individual casting of votes, and they are just of
the conference committee report to just be
submitted if there are any other objections or
otherwise.
In Arroyo vs. De Venecia 291 SCRA 433
(1998), Arroyo questioned it because it did not
comply with the constitutional requirements. The
Supreme Court said, while the bicameral
conference committee is not provided for in the
constitution, the issue of constitutionality always
asked is whether or not the provisions on the
Constitution on procedural on passage of bills
have been violated. Since it has not been
violated then there is no constitutional question
because both houses have processed the bills in
accordance with the rules as provided for in the
Constitution and the holding of the third and final
reading of each house of their respective
versions have been entered in the journal. To
process the bill thereafter, by tradition and
practice, in the bicameral conference committee
has been an accepted practice. Has that
practice violated any constitutional provision?
The answer is NO because that has not been
prohibited. By doing that, they have not also
violated existing constitutional limitation as to
procedural passage.
B. QUESTION HOUR
Question hour is normally discussed in relation
to inquiries in aid of legislation. We mentioned
that both are parts of what we know as
congressional oversight functions. Point to
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remember:
Distinctions between question hour and inquiries
in aid of legislation; as to who are covered, who
can be called, what is the subject of inquiry,
what are the procedure to be followed:
(i) In question hour, only Heads of
executive departments only on
matters relating to their departments
and there must have to be written
questions submitted before they are
asked.
(ii) Inquiries in aid of legislation
anybody including heads of
executive departments. The only
limitation there is any person
appearing or may be affected by
such inquiry, their rights must have
to be respected. Also the rules of
the inquiry must have been
published (Garcillano vs. HR
Committee 575 SCRA 77 (2008).
The old cases up to the cases of PHILCOMSAT
vs. Senate 673 SCRA 611 (2012) has
repeatedly mentioned of what is the scope or
authority or power or jurisdiction of a committee
of congress or a house of congress to inquire. It
always go back to the old rulings in the cases of
Arnault vs. Nazareno and Arnault vs Balagtas
where the range of the power is consistent with
the range of legislative authority. So what range
is that? Anything not prohibited by the
Constitution.
It has been said then and still holds true today
that an inquiry in aid of legislation is not invalid
simply because it does not result in a legislation.
An inquiry is not always for the purpose of
coming up of a legislation or proposed
legislation. It can also be used for:
(i) examination of an existing
legislation
(i) (ii)examination as to its efficacy, as
to its propriety
(ii) and whether there is a need to
amend or revise the law
In the case of Garcillano vs. HR Commitee
575 SCRA 77 (2008), one of the most known
joint committee hearings, one and significant
recommendation of that report is to amend the
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Anti-wiretapping Law and up to today, it has not
been amended. Then there is no bill which has
been passed amending the said law. Why is
that? Because probably the government would
still want to tap all of us :). Because the said law
does not cover the technology today. In Gaanan
vs IAC, the Supreme Court made clear, there
must be a deliberate intent to tap, so there must
be a line. What is prohibited in the Anti-
Wiretapping is not only the cutting, the tapping,
recording but also making that recording public.
In our technology today, there is no cutting,
tapping, there is just listening and recording and
there is now law which covers that so far.
Aug. 13, 2015- Bon
EXECUTIVE BRANCH OF GOVERNMENT
PRIVILEGE, SALARY, and
DISQUALIFICATIONS
EXECUTIVE PRIVILEGE
With respect to salary, the only difference with
respect to congress is in the executive there is
no allowance of increase or decrease during the
term. With respect to other privileges the
constitution provides for judicial precedence but
one of the most discussed privilege of the
president is the concept of executive privilege.
The concept of executive privilege is given to the
president, that there maybe refusal to make
public or private information only in some
matters which maybe the basis of presidential
action or decision. This is likened to
deliberations of courts, the nearest example
would be when the Supreme Court or a
Collegiate Court comes up with a decision or a
resolution, the Constitution says that there must
have to be prior consultation among the
members of the collegial body before the is
submitted. What may have been discussed
during the deliberation can never be made
public. That is the nearest example by analogy
of the claim of executive privilege. Now just like
in the judicial deliberations, there is no provision
in the Constitution that expressly provides for
the claim of executive privilege, but just the
same, there has been courts approval in
practice in line with the president’s executive
power to ensure that laws are faithfully
executed. To be able for the president to
discharge this function that the laws are faithfully
executed or implemented, he must have gone
thru decision making with the help of his
subordinates. This discussion cannot be made
public and it does not only cover matters of
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national security or interest, it covers all along
the line of what we know now as part of
presidential communication.
In the case of NERI v. SENATE COMMITTEE
549 S 77(2008), 564 S 52 (2008), involving the
claim of executive privilege, the Supreme Court
discussed such privilege of the president which
is rooted from the case of US v. Nixon, the
Supreme Court quoting the case of Nixon said
that the president must have an expectation of
confidentiality in his conversations,
correspondence likened to confidentiality of
judicial deliberations. The president and those
who assist him must be free to explore in the
process of shaping policies and making
decisions and to do so and obey, many would
be unwilling to express, except privity.
These are the considerations justifying the
presumptive privilege of presidential
communications. So it is not expressly provided,
it is presumed because of the fact the executive
power is solely exercised by the president, but
you cannot expect him to come up with a
decision without any deliberations with the
person who assist him. In the case of Nixon, to
commit a felony is not part of the presidential
privilege. But in the present, do you think the act
of attacking or invading another country is not a
crime?
This presidential communication privilege admits
of proximity rule or rule of opportunity, any
person who in relations to the discussions and
deliberations coming up with a policy or
decision, near or nearer to the president, they
cannot be coerced either by congress or by the
courts to make public such information, rule on
proximity. Are those waiters serving food during
cabinet meetings covered by the presidential
privilege rule? UNANSWERED.
PROHIBITIONS
Okay, section 13, art.7 has 2 components.
Section 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided
in this Constitution, hold any other office or
employment during their tenure. They shall not,
during said tenure, directly or indirectly, practice
any other profession, participate in any
business, or be financially interested in any
contract with, or in any franchise, or special
privilege granted by the Government or any
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subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries. They shall
strictly avoid conflict of interest in the conduct of
their office.
The spouse and relatives by consanguinity or
affinity within the fourth civil degree of the
President shall not, during his tenure, be
appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman,
or as Secretaries, Undersecretaries, chairmen or
heads of bureaus or offices, including
government-owned or controlled corporations
and their subsidiaries.
The first paragraph is the prohibition on
appointments while the second paragraph is the
prohibition to appoint. First paragraph refers to
the members of the executive body holding
some other office or position. Second
paragraph pertains to the prohibition on the
power of the president to make appointments of
certain individuals to certain officers. The 2nd
paragraph speaks of the spouse, relatives up to
fourth civil degree either by consanguinity or
affinity cannot be appointed to Constitutional
Commissions, the Ombudsman, Secretary,
Undersecretary, Chairpersons, Heads of
Bureaus including GOCCS. With respect to sec.
13 par. 1, you review the cases on the outline,
PUBLIC INTEREST v ELMA (2006, 2007) and
FUNA vs AGRA 691 S 196(2013).
There was first tested during the time of Cory
Aquino when she appointed Heads of GOCCS,
because in sec. 13 it is worded unless otherwise
provided in the Constitution, so how should this
phrase be construed? The court said that
considering the history of this during the time of
Marcos, where in several members of the
cabinet holding several positions, elective, at
one point at that. This provision was made or
included in the 1987 Constitution to ensure that
they only owe loyalty to the executive branch of
the government. This is called trafficking of
office where they will be performing several task
outside the primary function of his office to which
they are appointed. So the phrase in sec. 13
“unless otherwise provided in this Constitution”
has also been interpreted in relation to sec. 7,
par. 2 of article 9B which is according to the SC
to be applied as a general rule to all other
appointive officials, but with respect to the so
called executive mandate the phrase must have
to be literally construed and understood,
meaning the Constitution must have to provide
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for that other positions.
There are 2 known exceptions, the first is said
to be the Vice President as a member of the
cabinet provided under article 7, and it does not
require CA confirmation, or under article 8 where
the Secretary of justice sits in the JBC, here
there are specific provision allowing member of
the executive to sit or hold other office. The
second would be the so called Ex Officio
position, it is a position which does not require
permanent appointment, holding additional
designation of task or work and more importantly
there is no additional remuneration because
they are considered to be part of the principal
office to which they are appointed.
So this case of FUNA v. AGRA 691 S 196(2013)
was the appointment of AGRA as acting Sec. of
Justice and acting Sol. Gen. So as a member of
the cabinet , he cannot hold other position like
that of a Solicitor General. The respondent here
contended that the 1st par of sec. 13 should not
apply to him because his appointment in the 2
positions are all in an acting capacity. The SC
clarified that sec.13 does not make any
distinction whether the appointment be acting,
temporary or permanent appointment because
the evil sought to be avoided is still existing even
if the appointments are in the acting capacity.
One must owe loyalty only to one position. This
is overconcentration of power to the executive
branch by allowing executive family members to
hold any other office if not allowed in the
constitution.
QUALIFIED POLITICAL AGENCY
Question: can the president hold any other
office? HE is allowed to become the secretary of
all departments. Under the doctrine of qualified
political agency, the president is allowed to
appoint them as his alter egos, but it does not
prevent him from becoming the secretary of the
departments. It might not have been provided in
the constitution like that of the Vice President,
the President can even without such provision in
the Constitution be allowed to become
secretary of any or all departments.
SUCCESSION, there not much there.
REMOVAL is by impeachment. Okay
POWER AND FUNCTIONS OF THE
PRESIDENT
The only discussion with respect to the power
and functions of the president you need to
remember is the concept of residual powers.
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Looking into the concept of residual powers as it
is applied to our branches of gov’t, whatever the
constitution has provided in relation to a
particular power of the president, that is not
supposed to be a grant of power of a limitation
of the exercise of such power. The same is true
with the judiciary and legislative. If you go by the
section 1 of all articles 6,7,8, the constitution
says “Judicial power is vested in the SC and
such other Courts a provided for by law”, it does
not grant the SC and such lower courts a judicial
power as we understand it. The judicial power is
there exercisable, but it can ONLY be exercised
by the Supreme Court and such lower courts. It
is not a grant per se but a limitation. Same thing
in the exercise of executive power, sec. 1 of
article 7 states that it is lodged in the president.
It is not a grant of executive power but merely a
limitation that executive power is only
exercisable by the president alone.
The import of the ruling, even if the Constitution
provides for provisions which are suppose to be
the limit of executive power, when the issue
refers to implementation , execution or
administration of the law are all within the
concept of executive powers. The question as to
interpretation of the laws would have to be in the
judicial power and with respect to congress, the
general plenary(inaudible). The specific
provisions providing for the exercise of powers
are not grant but limitations on the exercise of
such power. Whatever may not have been
provided are still part because they are
considered as residual powers.
CONTROL OF THE EXECUTIVE
DEPARTMENT
The discussion here is the distinction between
Control and Supervision. When you say control
it is the power of a person having control over
another to revise, review, reverse, modify or
affirm the judgments or actions of the actor and
may even act on it himself.
Supervision has nothing to do with the actor, it
has something to do with the power to exercise
oversight over subordinate officers or body, but
does not have authority over such subordinate
persons or body. Supervising officer merely see
to it that the rules are followed to the letter but
cannot modify or reverse the action of such
officer or body.
The other discussion here is whether or not the
power of supervision includes the power to
discipline the subordinates if the latter does not
follow the rules to the letter. Part of the
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discussion of control is the doctrine of qualified
political agency. The members of the cabinet
can perform any and all tasks that the president
may himself personally do except for a few. 1.)
declaration of martial law 2.) suspension of the
privilege of the writ of habeas corpus 3.)
pardoning powers of the president, and those of
similar imports. Outside of these, anything can
be done by the subordinates.
In the case of MANALANG v. TIDCORP 692 S
359 (2013), some GOCCs or almost all of them,
if created under a special law requires a
government representative in the board simply
because it is a GOCC. In most, there are
members of the cabinet sitting as members of
the board in that corporation. Is that allowed by
law, in cases SC says this is allowed by law
because they represent government interest.
This does not involve additional remuneration as
it is considered as ex officio position. When the
cabinet members sit as member of the GOCC
boar, he does not act as an alter ego of the
president under the qualified political agency,
but as a representative of the government. In
this case of MANALANG, the question was can
a decision of a board having 9 members who
are cabinet members be subject to the control of
the president because he has control over them
as members of the cabinet, the SC said the
President has no control. As members of the
board of the GOCC, they do not act for the
interest of the president but for the interest of the
republic. Therefore their decisions as member of
the board is the decision of the board and not
decision made by them as members of the
cabinet.
GENERAL SUPERVISION OF LOCAL
GOVERNMENTS AND AUTONOMOUS
REGIONS
A simple reading of Art. X, sec. 4
Section 4. The President of the Philippines shall
exercise general supervision over local
governments. Provinces with respect to
component cities and municipalities, and cities
and municipalities with respect to component
barangays, shall ensure that the acts of their
component units are within the scope of their
prescribed powers and functions.
tells you that president has general supervision
over all local governmet units. Province with
respect to component cities and municipalities,
and municipalities and cities with respect to
baranggays. What does this exactly mean? The
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power of discipline of the president over the
LGUS and their head is given, but under the set
up in the Local Gov’t Code, which among the
LGU officers are subject to the powers of the
president to discipline? Governors of Provinces
and Mayors of Highly Urbanized cities. This
means the power of supervision also entails
power to discipline the subordinate officers or
body.
POWER OF APPOINTMENT
The first set of the discussions there is or would
be those officers which the president must
appoint with respect to the requirement of
confirmation of the Commission on
Appointments. The power of appointment is
basically PURELY EXECUTIVE function even if
it were to be made by the Supreme Court, Does
the Supreme Court have the power to appoint
any of its employees? Yes, except judges. All
court personnel are to be appointed by the
Supreme Court except judges, from the clerk of
court down to the last employee, they are to be
appointed by the Supreme Court. So that is an
executive function of the Supreme Court,
because power to appoint is essentially
executive.
Section 7. 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.
Second characteristic of power to appoint is that
it is DISCRETIONARY. Includes the grant of
discretion on the appointing authority whom to
appoint. Yes, congress can legislate
qualifications to public office but congress
cannot make those qualification very stringent
that only one person will be qualified because
that will take away the discretionary character of
the power to appoint. You remember the case of
FLORES v DRILLON where the first chairperson
of the SBMA shall be the Mayor of Olonggapo
City, the SC said it is unconstitutional being
violative of par. 2, Sec. 7, Art. 9B, and also it
destroys the character of the power to appoint
as being discretionary. The appointing authority
must exercise discretion on whom to appoint
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despite the fact that there are qualifications.
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.
Those with the consent of the Commission on
Appointments, as we all know these are the
officer listed under the 1st par. , sec. 16 of art. 7,
first sentence, heads of executive departments,
ambassadors, other public ministers and
consuls, those in the arm forces from the rank of
colonel to naval captain, and those literally
appointed by him as required under the
constitution. Who are these literally appointed by
him as required by the Constitution? The list is
exclusive, it cannot be expanded by legislation.
You’ve read in several cases where a law was
passed requiring confirmation for example of an
NLRC Commissioner, the SC said that it is
unconstitutional because NLRC commissioner
does not fall under the exclusive enumeration.
You’ve also read case involving officers of the
PNP with the corresponding rank of colonel, it is
unconstitutional as well because PNP is not part
of the Armed Forces of the Phil. SO mere
legislation cannot add to the enumeration of the
constitution requiring confirmation of the
Commission on Appointments.
With respect to those requiring CA confirmation,
the procedure is that the President makes a
nomination, submits the nomination to the CA,
the CA then will act upon the nomination and
confirm. But of course the media will always say
‘he has been appointed’ and the appointment is
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submitted to the CA for action. What is acted
upon by the CA is the nomination for that
position and we also know that there is a
discussion with respect to ad interim or recess
appointments. The use of that word or term
referred to those appointments requiring CA
confirmation which are made when Congress is
not in session. Still differently, if the appointment
does not require CA confirmation and it is made
when Congress is not in session, that is not an
ad interim or recess appointment. The reason
why it is referred to as ad interim or recess
because the CA is not functioning when the
Congress is not in session. In the meantime, it is
automatically effective until acted upon by the
CA or Congress resume session or without any
action from the CA when Congress re-adjourns
after it has resume session. Reaching to the
point of bypassing an appointment or
nomination but when the appointment or
nomination is submitted to the CA, the CA can
either act on it by confirming it or by rejecting it.
But in some occasion, I think they have a rule 20
there. If one invokes that rule 20 they can refuse
to act on it and it will just be bypassed. There is
no limit as to the number of times(inaudible-
29.19)an appointment or nomination is
bypassed by the CA. The President can
reappoint/renominate ad interim. The only time
the President cannot make a reappointment or
renomination is when that nomination has been
finally rejected by the Commission on
Appointments. But as we have discussed, under
the item of CA that rejection will only be for that
position. The same person can be appointed to
another position requiring CA confirmation and
that will not be covered or barred by the rule if
that person has already been rejected and that
the appointment or nomination of the person has
already been rejected.
AD INTERIM versus ACTING
APPOINTMENTS
That’s just been the subject in the case of
Matibag vs. Benipayo 380 S 49. It’s an old case
but because of the distinction made of the acting
appointment or temporary appointments ad
interim. This is still good law. When the
President makes an appointment to a position
requiring CA confirmation those falling under the
first sentence under section 16, does it have to
be permanent all the time? Meaning, permanent
appointments submitted to the CA for action or
that nomination submitted to the CA for action
Supreme Court says in this case, it is not
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necessary.
The question was raised because GMA made
several appointments in a temporary acting
capacity and because it is temporary
acting,..it..did not submit the confirmation to the
CA for action(not sure). The CA obviously
questioned saying the President cannot do that.
All the President’s… appointment must have to
pass through and scrutinized by the CA. And the
Supreme Court said ‘it is not required to be
submitted when the appointment extended is
temporary of acting because the power of the
President to appoint also grants the President
the power to..or extend an appointment in acting
or temporary capacity until the President finds a
better person to appoint in the permanent
capacity. And only then that such appointment
must be submitted to the CA for action. And then
Pimentel said, ‘But there is a possibility that it
will be abused’.
The Supreme Court said, ‘Until it is abused the
presumption is the acting or temporary
appointments are made’. So there is no
com(inaudible) for the President to make or to
extend permanent appointments at the time
even if it requires CA confirmation.
Who do you think will be appointed as DILG
Secretary? When Mar Roxas is.. there is a
rumor slash humor that P-noy will be the DILG
Secretary. Sila lang gihapon? Controlling over
all LGUs. Imagine ikaw ang magcontrol sa
police, ikaw magcontrol sa governor down to the
last elected official of the LGU. But there has
been no anointed candidate by the incumbent
President that has won in the election in the
Philippines. Wa pa gyud. Sukad-sukad, kaluoy
sa Diyos. But I think, now people that the
electorate generally is considered to be more
mature, di na sila mudawat ug 200. Dako-dako
na daw ilang dawaton. Sauna kay ibudget pa
man 200gyud na , karon kay dako-dako na man.
MIDNIGHT APPOINTMENTS
Prohibition or Limitations of power to appoint,
this is mentioned in the 2nd paragraph of section
13 that would be limitations of power of the
President to appoint those persons with those
positions. When Erap became President, the
question was asked, ‘When the constitution says
it’s spouse should not be the legal
spouse…he made senator but he also had
another spouse whom he made mayor, Mayor of
San Juan. Muadto na lang gud siya’g Manila kay
para walay gubot. ..Now his two sons are in the
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senate. One is in…the other is in…
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 second prohibition there is on the
argumentation there is under section 15 or so
called ‘midnight appointees’. Now, two months
before the elections until the end of the term,
generally there shall be no appointments made
or extended by the President. Except in the
executive positions in temporary capacity , in
vacancy which prejudice or endanger public
safety. This was, this limitation was based on
the case of (inaudible) where the issue was the
act of the President extending several
appointments which should been carried over to
the next President. So doing that the present
constitution now has provided a certain limitation
to the power of the President to extend such
midnight appointments. This prohibition was
included here to prevent the President from
protecting himself from repercussions later when
he’s no longer President.
All the president outgoing will always have to
arrive at (inaudible) so that his interest will be
protected. That is the frame of mind of outgoing
President. (inaudible) Look at what happened to
Gloria, she’s in deep shit because Gibo did not
win. If Gibo won, she should have been
(inaudible/partying) Pnoy will also ensure that
Mar will win otherwise if Binay will win, he will be
in deep shit also. Balos-balos ra man gud ni
atoa. That’s how we are cyclical, in the language
of the great Joseph Ejercito Estrada ‘weather-
weather lang’. Kamo sauna, kami karon. Karon
kami na sad.
There has a no issue with respect to this
provision from the time of...ruling until this came
to the form with respect to the judiciary and the
first case that was decided under this with
respect to the judiciary was the case of IN RE:
MATEO VALENZUELA whether appointments to
the judiciary is covered in that 90-day period.
Two months before, second Monday of May up
to the end of the term which is noon of June 30
following the elections is accorded 90-day.
And in the case of De Castro vs JBC 615 S 666
(2010), 618 S 639 (2010), the Supreme Court
reexamined the values of the ruling and as you
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know the judiciary is not covered by the
prohibition on…There were several issues
raised there and the main case was just to
overturn this Valenzuela Ruling that the..was to
be awaited which was the bases for the
Valenzuela ruling is not exactly present
considering that in the provisions of the
constitution the filling-up of the vacancy in the
judiciary is somewhat mandatory while in the
lower courts this 90 days of submission of the
list of the…..President. With respect to the
Supreme Court, the 90 days shall commence
from the time vacancy…it’s not on the
submission of the list. It is more compelling in
Supreme Court than in the lower tribunals. So,
which is to be followed? The Supreme Court
said, ‘The language of the constitution is
mandatory. It must have the…of the ruling
appointments of the judiciary if not covered may
have to depend on the outcome of the election.
Rightfully so, if you look at it in the local level
because in the election laws if there’s a petition
for inclusion or exclusion of voters where do you
file it? Where? Does the COMELEC have
jurisdiction over it? Or is it in the regular courts?
If there’s an issue in the election contest for
example, disqualification. Before the …in the
COMELEC. After election proclamation term of
office begin in the…tribunals, does it go to the
courts? Eventually, it will. From the electoral
tribunal of the senate and the House of
Representatives, it goes to the Supreme
Court…The Supreme Court is the
Presidential…so the evil that was discussed in
the earlier ruling which is…appointees to..yet the
possibility, yet little of that possibility that the
appointees of the judiciary with the side of the
case in favor of the appointing authority…and I
think that is too far-fetched because if you are
an outgoing President already, how could the
appointment affect…But if it is true, look at how
Pnoy has fared with the Supreme Court. How
many justices of the Supreme Court has Pnoy
appointed so far? How many? Five. Has he
won? Wa pa gyud.ever. DAP,PDAF, Truth
Commission. So, while it may eventually be
beneficial to the appointing authority, you don’t
say that his magistrates will be swayed in their
decisions simply because the person bow before
them pleading before them like the former
president will owe some loyalty to him. Members
of the court have tenure they do not have a
term. They’re there until 70 unless they die by
natural or unnatural causes. So because of this
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the De Castro Ruling that was the central issue.
Appointments of the judiciary…are not covered
by midnight appointment.
There was one interesting question raised there.
And that issue was when should the JBC let the
applicants to Supreme Court because this was
the impending retirement of Chief Justice Puno.
The Supreme Court said, ‘the JBC and even
their applicants before the vacancy occurs if the
vacancy is due to a……,(di jud siya maklaro)
The JBC will make now the applicants to the
vacancy due to the impending death…of the
executive justice, pero retirement it is certain to
come. So they should.because the 90-day
period is mandatory. Supreme Court is
suggesting the JBC cannot submit it on 60th day
because it will shorten the period that the
President should choose who to appoint among
those. One question was raised but it was never
answered. When the person is not outsider in
the judiciary apply, he is supposed to be
(filtered)by the JBC. Ma-aaply siya, meron
siyang mga exams, may mga neuro-psychiatric
pa yan sila tingala ka nganu ..buang sa judiciary,
siguro gibayaran ra to’g..anyway. But what
is….in the Supreme Court like you have Senior
Associate Justice Antonio Carpio, if he wants to
be chief justice, why should he undergo the
same process? You are already in the SC, if you
are coming from outside of the SC, no problem.
Now when you are a sitting justice and you just
want to be Chief Justice, why should you go
through JBC? There is a possibility that he will
never become a Chief Justice if the JBC will not
include him in the short list. Look what Justice
Antonio Carpio is doing, he is defending the
claim in the West Philippine Sea, kay dili na man
siya ma Chief Justice jud, kay paka n man si
Sereno, so abogado na lang siya sa gawas.
The other limitation on allowable appointment
the president may extent would be temporary
designations. The president may designate in a
temporary capacity other persons in the
executive branch or the officer appointed was
unable or order declaring (vacancy).
Aug. 14, 2015- Bryan
APPOINTIVE POWERS OF THE PRESIDENT
Gonzales vs. Office- The 2012 decision has
been reconsidered and this time around, in
2014, the SC had reversed its earlier ruling,
where the sec. 8 (2) of RA 6770 granting the
president power to discipline the deputy OMB
and the special prosecutor. If you remember, a
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reading of RA 6770 gives you 5 deputies: overall
deputy, deputies for Luzon, Visayas, Mindanao,
and the fifth one is the special prosecutor.
Issue: WON the office of the president has the
power to discipline the deputy OMB or special
prosecutor.
In the 2012 decision, SC said the president has,
but maintained that since the grounds provided
for are the same grounds as that of
impeachment, then the determination of the OP
to dismiss a deputy OMB must be in the same
characterization as that of the ground for
impeachment.
In 2014, that was reversed and SC said that
while Congress has the power to enact a law
providing for the power to discipline, it must not
be contrary to the intent of the Constitution. SC
said the OMB is not a statutory creation because
of RA 6770, but it is mandated to be created by
the Constitution. In which sense, it has to have
the so-called independence, and it must be
beyond the control of the President. The same is
true with the OMB because the Constitution
makes the OMB an impeachable officer. But
with respect to the deputies, SC interpreted it by
saying that the deputies must have the same
independence as that of the OMB although they
are not impeachable officers, but by reason of
the functions of their office, they must have to be
independent as well, free from the disciplining
authority of the president. So they can be
disciplined by the OMB, but the Special
Prosecutor, because he is not subject to the
authority of the OMB with respect of the power
to prosecute, then it remains with the Office of
the President to discipline.
Is there a limitation in the period of
“temporary appointments” for it not to be
abused?
Temporary appointments, in relation to the case
of Benipayo, there is no limitation as to the
period for so long as it is not abused to avoid the
confirmatory function of the CA, there has been
no period given. The one year period is for
temporary designations. This is provided for
under Sec. 17 Bk III of the Administrative Code
of 1987. So, in no case shall a temporary
designation exceed more than one year.
EXECUTIVE CLEMENCIES
POWER OF THE PRESIDENT TO GRANT
CLEMENCIES OR PARDONING POWERS
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This is essentially executive in character and
discretionary. For as long as the Constitutional
limitations have been complied with, the grant is
final and unappealable. The only time that there
can be a review is when there is a Constitutional
violation or an executive clemency to be
granted. So for so long as the conviction is by
final judgment, then any executive clemency can
be granted. It is final when there is no appeal,
when the accused begins to serve his sentence
or the application for probation, and there is no
waiver of the right to appeal.
With respect to convictions in relation to
election-related offenses, there must have to be
a recommendation by the Comelec.
GRANT OF AMNESTY
With respect to the grant of amnesty, there must
be a majority vote of Congress because
amnesty is not a presidential grant solely. It is a
waiver of state power to prosecute offenders. So
it is an act of the state, it must be with the
concurrence of Congress. The only case that is
new there is Magdalo vs. Comelec- registration
and accreditation to join the partylist system for
the 2010 elections of the Magdalo Para sa
Bayan party. The application was filed in Aug.
2009 and because of the 2003 Oakwood Mutiny,
the Comelec denied the petition for registration.
The MR was likewise denied in October 2009.
However, in November of 2010, President
issued Proclamation No. 75 granting general
amnesty to the participants, whether active or
former members of the PNP in the Oakwood
Mutiny.
WON the denial of the Comelec of the
registration and of the MR in January 2010 was
with grave abuse of discretion considering that
there was a proclamation granting amnesty back
in November 2009.
SC said there was no grave abuse of discretion.
There was basis for the Comelec to deny the
registration for application because of the DQ for
those who espouse violence or change of
government. But because of the grant of the
amnesty later, the SC said the grant of the
amnesty is that it looks backwards meaning it
abolishes the offense itself, so that if a person is
extended the benefit of amnesty, such person
has not suffered from any DQ by reason of the
offense committed. And it is important to them
because some of them or most of them have not
yet been convicted.
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In relation to the grant of amnesty, the question
is asked: who shall be entitled to amnesty? It will
be any person, whether charged or not charged,
arrested, detained, or convicted by final
judgment and serving sentence, provided that
person is covered by the amnesty proclamation.
He must have to enjoy its benefits and it erases
or abolishes the fact of commission.
GRANT OF PARDON
It is different in a grant of pardon. Because of
the change in our political history on the effects
of pardon, prior to the 1973 Constitution, we
followed the American experience, that pardon
can be granted even if there is no conviction.
The original draft of the ’73, there was a
requirement of conviction by final judgmenet. In
the ’81 amendments, there was no need for a
final judgment conviction, only conviction. So
even if you conviction is on appeal, you could be
granted pardon.
In 1987, Conviction by Final Judgment was
returned, so there must be no pending appeal
for a pardon to be granted. When pardon is to
be granted. The fact of conviction can never be
abolished or deleted. The person has been
convicted. What he is free from is the effect of
conviction. So if the conviction carries with it the
penalty of perpetual disqualification, then that
person is no longer perpetually disqualified to
hold office. but there could be no order for him,
for example, to be reinstated to a former
position, if the reason for the severance from
employment is the fact of conviction, because
the fact of commission and the fact of conviction
cannot be deleted as in a grant of amnesty.
COMMANDER-IN-CHIEF POWERS
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
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writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its
Members in regular or special session, may
revoke such proclamation or suspension, which
revocation shall not be set aside by the
President. Upon the initiative of the President,
the Congress may, in the same manner, extend
such proclamation or suspension for a period to
be determined by the Congress, if the invasion
or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within
twenty-four hours following such proclamation or
suspension, convene in accordance with its
rules without need of a call.
The Supreme Court may review, in an
appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the
operation of the Constitution, nor supplant the
functioning of the civil courts or legislative
assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over
civilians where civil courts are able to function,
nor automatically suspend the privilege of the
writ.
The suspension of the privilege of the writ shall
apply only to persons judicially charged for
rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the
writ, any person thus arrested or detained shall
be judicially charged within three days,
otherwise he shall be released.
The President has 3 powers that he may do
under Sec. 3 powers that he may do under Sec.
18.
1. To call out the armed forces to
prevent or suppress lawless
violence, invasion or rebellion. It
doesn’t necessarily require that if there
is violence, invasion, or rebellion, that
martial law shall be declared and the
writ of habeas corpus privilege shall be
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suspended. From the words of Sec. 18,
this would give the character as a part of
police measures, because the President
will just have to call out the armed
forces.
2. With respect to invasion or rebellion,
because public safety requires it, this is
in the ordinary understanding, simply an
ordinary exercise of police power by the
president, not by the state technically.
Because this is to prevent the invasion
or rebellion from breaching public
safety. With respect to martial law
declaration and suspension of the
privilege of the writ, same
requirements- invasion or rebellion and
public safety must require them to be
called.
Fortun vs. GMA- regarding the
declaration of martial law in
Maguindanao. SC had the occasion to
describe and characterize the interplay
of power by the President, Congress,
and SC. SC said that the power of the
President and Congress with respect to
the declaration is invalid. They are only
sequentially done, but in the sense,
jointly done. Because while the
President has the power to call it, only
Congress has the power to maintain it.
The President does not have the power
to maintain the validity of the declaration
for the suspension because Congress
can revoke it.
With respect to the power of the SC, it
said that it is implicit that the power of
the SC must allow Congress to exercise
its own review powers before the SC
can exercise its powers to review and it
characterizes the declaration of martial
law or suspension of the privilege of the
writ as a political question. First, that it
should become a justiciable question
when it reaches the court. On the matter
of the 30-day period for the Supreme
Court to resolve issues or petitions
involving the sufficiency of the factual
basis, J. Carpio said in this case that the
SC might not be able to resolve it in 30
days or in 30 days, Congress might not
yet be able to go over the declaration
because it has the initial power to
review.
Remember the factual settings in this
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case. It was the first time that there was
a martial law declaration in the present
constituent. So while Congress may
have all the rules of proceeding; i.e.
impeachment. BTW, impeachment rules
are there because of Estrada. Before
Estrada, there were no impeachment
rules of procedure because all
impeachment proceedings during the
time of Marcos were all killed even
before they reached the Committee
head. So it was only in the time of the
Estrada impeachment when Congress
has to both provide for impeachment
proceeding rules in the House and
Senate for trial.
But with respect to the provision for
martial law, while the provision has been
there all along since 1987, there were
no rules for Congress how they will go
about any review of a declarion of
martial law. So they to make it. So in
that Maguindanao declaration, they had
to call joint session and they had to let
individual members of Congress to ask
questions in the given limited time.
Senators had longer periods because
they were only 24.
SC said, the fear of J. Carpio may not
be real because:
1. the president shall make a
report within 48 hours;
2. Congress must have to convene
within 24 hours from such
declaration.
So that’s only 3 days and suggesting
that Congress might be able to finish its review
even before the 30-day period lapses, assuming
that the petition to question the sufficiency of
facts and basis is filed a day after the
declaration. And besides, even if it goes beyond
the 30 days, SC does not lose jurisdiction over it
based on the fundamental principle that once
jurisdiction is acquired, it is not lost until the case
is finally resolved.
In that Maguindanao declaration, after 8
days, the declaration was lifted, so Congress
had no time to rule on the declaration whether it
should be revoked or maintained. And the rules
have not yet been tested.
3. With respect to the writ of habeas
corpus, what is suspended is the
privilege. We know that the writ can be
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issued if it is properly filed in form and in
substance even if there is a declaration
for suspension. What the declaration
does, solely, is not to deny the courts of
jurisdiction to issue the writ, but to allow
the military or the law enforcement
agencies, if the person arrested or
detained for having been suspected of
committing either acts of rebellion or
those inherent or in relation to an
invasion.
Reference it to the normal periods under
the Article under the RPC on arbitrary
detention for 12, 18, and 36 hours.
Because the Constitution says that
these persons arrested and detained
under a suspended privilege of the writ
must have to be charged within 72
hours. Otherwise, they must have to be
released. So from the usual hours, it has
just been extended to 72 hours. And
while a declaration of martial law is
effective in a certain territory to cover all
persons, the suspension of the privilege
of the writ, though covering a certain
territory, does not apply to all persons
arrested. It is only applicable to persons
arrested for having been suspected of
committing rebellion or acts inherent or
in relation to an invasion. It does not
apply to persons arrested in the ordinary
case. So if you’re arrested for robbery,
rape, the suspension of the privilege of
the writ does not apply to you. The 12,
18, and 36 hours will still be applied.
Finally, even if there’s a suspension or a
declaration, the right to bail shall not be
suspended as well.
So a declaration of martial law, while it
technically grants in the traditional political law
discussion, the power to the president, the
ordinary powers of legislation of judicial
determination, our Constitution mentions the
limitations to it. It says:
(a) the President cannot suspend the
operation of the Constitution;
(b) cannot supplant the function of the
civilian courts and assemblies;
(c) cannot confer jurisdiction in the military
courts and agencies over civilians where
civil courts are able to function; it does
not automatically suspend the privilege
of the writ of habeas corpus.
These are Constitutional limitations because in
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the great scheme of things, if there’s actual
declaration of martial law in an actual or
threatened war, you don’t expect civilian courts
or legislative assemblies to function. If there’s a
declaration, member of Congress and the
judiciary will run away. So will perform these
functions? The executive. Question is: will the
Constitution prevail over the actual acts of
the President during that time? Sec. 18 is not
from imagination but from experience. The
ConCom wanted to include everything here as if
the president who declares martial law will follow
the Constitution. But in the Constitutional
context, these are appropriate to limit the
powers of the president.
The declaration of the suspension of the
privilege will no longer have any effect if the
President lifts it himself, Congress revokes it,
SC nullifies it, or by operation of law. A
declaration of martial law or suspension of
privilege cannot go beyond how many days, but
any extension is not limited to that for so long as
it is needed, martial law or suspension of
privilege can be maintained in the entire country
or in the covered territory. Nobody would want
this to happen, but those are the limitations in
the Constitution.
POWER OVER FOREIGN AFFAIRS
With respect to aliens, that’s an accepted
exemption under Art. III Sec. 2 with respect to
issuance of warrants of arrest. When the
President directs the arrest of an undesirable
alien for his immediate deportation, that order of
arrest can be issued by the President and that is
not covered by the rule on judicial warrants.
There are 2 things that must concur:
a. there is already a declaration of
undesirability. That the executive has
determined that the stay of the foreigner
here is a privilege and not a right is no
longer desirable and that he must have
to be arrested and deported.
b. What is issued is not a warrant of arrest
but an ORDER OF ARREST. That’s to
distinguish it from a judicially issued
warrant of arrest.
TREATY MAKING
Pimentel vs. Office- this is the Rome Statute
involving the ICC where the Philippines is a
signatory. After the Philippines signed through
the Philippine Diplomatic Officer in NY, Pimentel
wanted it to be submitted to the Senate for
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concurrence. SC discussed the procedure for
treaty making:
a. Negotiations- the parties negotiate;
there’s a written proposal and they
agree on terms.
b. Signing
Assuming that there are written terms,
the draft is signed by the
representatives of the parties. These are
the heads of states being the persons
representing the state
c. Ratification
A party will go over the terms of the
treaty and determine whether these are
acceptable. If these are not acceptable,
they can opt not to go on with the treaty.
They can refuse to be bound by it. But
after authenticating, they will forward it
to the president for ratification. Normally,
the procedure for ratification, it is
another office, not the negotiating party,
which will go over the document.
d. Exchange of Documents
The Senate’s participation in our treaty making
is concurrence, and concurrence is part of
ratification. SC said it is only after the document
is ratified that there will be an exchange of
documents. And after the exchange of
documents, normally this is when the treaty will
take effect.
With respect to this treaty in relation to the
participation of the senate, SC said that the
petitioners misconstrued that the signing means
that they are bound by the document. Signing is
just to authenticate what has been negotiated
but it is not yet binding and in effect. During the
ratification stage, in our laws, the DFA will go
over it and if it is within the terms of what has
been negotiated, the DFA will forward it to the
President for ratification. Under our rules, after it
is ratified by the President, the DFA will send it
to the Senate for concurrence. After the Senate
concurs to it, we will present it to the other party
in exchange of documents.
The petition for mandamus does not lie,
according to the SC, because it is only when the
President ratifies it that it must be concurred by
the Senate for the eventual exchange of
documents. Here, it was just signed. It was not
yet ratified, so the Senate has no right that has
been violated, there is no ministerial duty on the
part of the OP to submit and forward to it a
signed treaty which has not yet been ratified by
it.
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POWER OVER LEGISLATION, PEOPLE
POWER- we’ve gone over these
IMMUNITY FROM SUITS
We have made mention of immunity of the
President in relation to the concept of state
immunity. As an officer of the State, the
President, if he is sued, just like any public
officer in his official capacity, where financial
liability rests upon the State, then that can be
considered as suit against the State. But we said
that the President is also immune because he is
an impeachable officer. As an impeachable
officer, he cannot be sued in any case which will
effectively remove him from office even if it is a
crime until he is impeached. And because of the
concept of immunity being the head of the State,
the President enjoys that kind of immunity not
only in our jurisdiction but in the receiving state.
Under the Conventions, the President being the
head of the State, is also immune from the
application of the laws of the host or foreign
country. The question that has been asked with
respect to several cases is: Are those applicable
with respect to Petitions for Writs of Amparo
where GMA has been made respondent?
Rodriguez vs. GMA- The SC made mention
that the President can be sued under the
concept of command responsibility in a petition
for a writ of Amparo because as commander-in-
chief, if the respondents are military officers, he
must have liability as well.
Does this not violate the rule that the
President is immune while he is sitting as
President?
SC clarified that in the Peittion for the Writ of
Amparo, what is established is not the liability of
a respondent but the responsibility or
accountability of a respondent as to the forced
disappearance, extra-legal killings of the person
subject of the writ. There is no responsibility
ever established by the writ of Amparo. In this
case, even the President is sued because the
president is not made liable. There is no
financial liability. There is no civil or criminal
liability, but only accountability and responsibility
for failing to provide for information over the
person who disappeared or who was killed
extra-judicially, then SC said this is not covered
by the presidential immunity. A sitting president,
therefore, under Command Responsibility can
be sued. However, to find the president
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responsible or accountable, he must have
constructive knowledge of the acts of the
subordinate officers. If the President actually has
no knowledge, he can’t be made responsible or
accountable for loss or disappearance or the
extra-legal killing of the person subject of the
writ.
Aug. 25, 2015- Sid
CONGRESS ACTING AS BOARD OF
CANVASSERS FOR THE PRES AND V-PRES
ELECTIONS
ART. VII
Section 4. The President and the Vice-
President shall be elected by direct vote of the
people for a term of six years which shall begin
at noon on the thirtieth day of June next
following the day of the election and shall end at
noon of the same date, six years thereafter. The
President shall not be eligible for any re-election.
No person who has succeeded as President and
has served as such for more than four years
shall be qualified for election to the same office
at any time.
No Vice-President shall serve for more than two
successive terms. Voluntary renunciation of the
office for any length of time shall not be
considered as an interruption in the continuity of
the service for the full term for which he was
elected.
Unless otherwise provided by law, the regular
election for President and Vice-President shall
be held on the second Monday of May.
The returns of every election for President and
Vice-President, duly certified by the board of
canvassers of each province or city, shall be
transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the
certificates of canvass, the President of the
Senate shall, not later than thirty days after the
day of the election, open all the certificates in
the presence of the Senate and the House of
Representatives in joint public session, and the
Congress, upon determination of the authenticity
and due execution thereof in the manner
provided by law, canvass the votes.
The person having the highest number of votes
shall be proclaimed elected, but in case two or
more shall have an equal and highest number of
votes, one of them shall forthwith be chosen by
the vote of a majority of all the Members of both
Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the
canvassing of the certificates.
The Supreme Court, sitting en banc, shall be the
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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.
The task of the Congress acting as the board of
canvassers, the usual issues before which is to
determine the authenticity of the certificates of
canvass, is easy now because of the automated
elections.
After the counting begins in the precinct level, it
is just forwarded to them or transmitted for which
the task of congress has been substantially is
reduced to a mere proclamation. However, the
other discussions would be to the issues
respecting the election returns and the
qualifications of the pres and the vpres. It is not
with congress but with the supreme court acting
as the electoral tribunal.
SPECIAL ELECTIONS/ CALL FOR SPECIAL
ELECTIONS WHEN BOTH PRES AND VPRES
IS VACANT
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 V1 of this
Constitution and shall become law upon its
approval on third reading by the Congress.
Appropriations for the special election shall be
charged against any current appropriations and
shall be exempt from the requirements of
paragraph 4, Section 25, Article V1 of this
Constitution. The convening of the Congress
cannot be suspended nor the special election
postponed. No special election shall be called if
the vacancy occurs within eighteen months
before the date of the next presidential election.
The things to remember here:
Considering that there is a need to call for
special elections, congress would have to
convene without need of call and they are
supposed to enact a law calling for a special
election.
That bill is considered:
 to be certified as urgent and
 that bill is coupled already with
availability of funds
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We all know that in special appropriations,
generally, there must have to be a certification
from the national treasurer that there are
available funds or there is appropriate revenue
procedure for funding such special
appropriations. This would be considered as
duly certified, both as to urgency and availability
of funds.
REVOKE OR SUSPEND THE PRIVILEGE OF
THE WRIT OF HABEAS CORPUS
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 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
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writ.
The suspension of the privilege of the writ shall
apply only to persons judicially charged for
rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the
writ, any person thus arrested or detained shall
be judicially charged within three days,
otherwise he shall be released.
We will take this up again when we reach the
item on Sec. 18 of Art. VII. For now, it is best
remember that in the case of FORTUN v. GMA,
the SC has made mention that actually the
power of congress is shared with the executive
and the executive or the pres has to make a
report to congress, automatically or
consequentially, congress has the power to go
over such declaration or suspension is
commenced. There is no need of any other act
that should entitle the congress to exercise its
authority.
That has been discussed because of the issue
of when should the SC also consider such
declaration or suspension?
The SC said: it is only when there is a petition
filed.
That has been asked because the constitution
provides that it has to be decided by the SC
within 30 days from the filing of petition.
What if the petition is filed immediately after the
act or declaration has been made, should the
SC decide within 30 days from such filing, or
should it allow the congress to exercise its
power to go over such declaration or
suspension, and perhaps and revoke it.
APPROVAL OF 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.
There’s nothing much there.
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
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confirmation by a majority vote of all the
Members of both Houses of the Congress,
voting separately.
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.
We will discuss that in the appointing powers of
the pres.
CONCURRING TREATIES
ART. XVIII
Section 25. After the expiration in 1991 of the
Agreement between the Republic of the
Philippines and the United States of America
concerning military bases, foreign military bases,
troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred
in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast
by the people in a national referendum held for
that purpose, and recognized as a treaty by the
other contracting State.
It is a new provision in the consti. New in the
sense that when it comes to the presence of
foreign military troops, bases and facilities, it can
now question, can be thrown to the electorate
whether they agree or concur to the treaty
allowing their presence here.
While, all other treaties are to be processed
under sec. 21 through the senate, with respect
to such kind of treaties, it can be thru the
electorate.
ART. VII
Section 21. No treaty or international agreement
shall be valid and effective unless concurred in
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by at least two-thirds of all the Members of the
Senate.
PIMENTEL v. OFFICE OF THE PRES (2005) –
which was a petition for mandamus. You very
well remember that even if the pres has already
signed the treaty with the foreign state, the
senate cannot compel the office of the pres to
submit a signed treaty for concurrence of the
senate because the mere fact that the pres has
signed it, does not give the senate power or
jurisdiction over it.
The concurring power of the senate or thru the
senate will only begin or commence when the
signed treaty is submitted to it, before it, the pres
cannot be compelled because it does not follow
that if the pres has signed the treaty that
automatically, he should submit it (to the
Senate) and it should be concurred and that it
would be effective between both countries or
states.
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, 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.
That’s one of the allowable delegated authority
under the constitution to the pres, where there is
a war or national emergency, congress may, by
law, delegate such limited authority to the pres
and within limited period, in order for the pres to
exercise powers necessary and proper to carry
out declared policies.
In recent history, this has been used by Pres.
Ramos in the power crisis which paved the way
to public-private partnership in the current or
electric industry. This has resulted to the
passage of electric power industry reform
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act. Before, the generation, transmission and
distribution of power were largely undertaken by
the state. Today, except for the Angus-Tulangi 7
complex in Mindanao, all others are private.
That is why we pay very high rates for power.
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 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.
This has not been used or tested. This has been
incorporated here because of the experience
during the martial law or the Marcos years
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where the state of the physical or fitness of the
pres was kept private and during the remaining
years of the presidency, there were even rumors
that the first lady and Fabian Ver were running
the country, in order to prevent that those
circumstances be no longer possible, the 87
consti, the members of the cabinet are allowed
to declare that the pres physically unfit to
discharge the function of the pres.
But of course, the pres is given the first
discretion to declare himself as incapacitated.
But who would ever? In the last sona, his
speech was interrupted more by his coughing
than by the applauses. It was 2 hours and 5
minutes and I think the coughing there was more
than 30 mins. Was he physically incapacitate?
Of course not because he was there. But that
was just an example that when the pres is
physically incapacitated, he can declare himself
as unfit and if he doesn’t want to; the majority
of the members of cabinet can.
If the pres accepts that, it would settle the issue.
But if the pres contests that, then the pres must
contest that within 5 days, cabinet may accept or
reject that.
If cabinet accepts the contest by the pres then
that is the issue. But if the cabinet would insist,
there will be a 2nd declaration, that is where the
congress will exercise its power and they have
to reach the qualified majority, 2/3 votes of the
congress, to determine whether the pres is
incapacitated or not.
In the time of pres Ramos, when you were
playing videogames because you were that
young, he was supposed to be placed in
surgery, so there was a question raised: whether
he should declare himself as physically
incapacitated or during the period of time that he
would be under anesthesia and during surgery
and after surgery, under the effects of
anesthesia is off. But the problem was, the
surgery happened on a Sunday. So he was
probably placed under surgery during Saturday
evening. And you know in the Philippines, it
would seem that every Saturday evening,
nothing will happen, politically or otherwise
(HAHA), and the news there, everybody was like
supposed to party and there was nothing really
that was news worthy. So by Monday morning,
the pres was already up and about, so the issue
was raised before the court, whether that is an
example of a pres being physically unfit or
incapacitated to discharge the functions of his
office.
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Perhaps, the nearest to that, when the pres
leaves the country, in the age where there is no
mobile phones and we cannot be reached by
technology, then there is a question of whether
the pres should make the vp, acting pres, when
he is absent or away from the country. But as
you have seen, even if the pres is out of the
country, the vp does not necessarily become the
acting pres. He would just be one of those, in
the pres line who would bid the pres goodbye,
because the pres can still exercise power even if
he is outside because of modern technology.
The vp remains as vp.
POWER OF IMPEACHMENT
WHO ARE SUBJECT TO IMPEACHMENT?
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.
The basic rule to remember here is: when there
is 5 officers, 6 grounds.
GONZALES v. OFFICE OF THE PRES (678
SCRA 514 [2012] and 714 SCRA 611 [2014]) –
there was an issue as to whether or not the
deputy chairpersons should be removed (note:
they are not impeachable officers) thru court
with the grounds for impeachment.
The list of officers is exclusive.
The list of the grounds is also exclusive.
GROUNDS FOR IMPEACHMENT
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.
The problem with the grounds is the only 3 there
are defined under existing laws:
1. Treason
2. Bribery
3. Graft and corruption
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4. Culpable violation of the constitution
5. Other high crimes
6. Betrayal of trust
Last 3 has not yet been defined by legislative
law. Perhaps in some cases, the SC has tried to
characterize them, and in the case of
GONZALES, the SC has made mention of the
seriousness or character of the 3 other grounds,
must have to be as serious as those 3 already
defined under the existing laws.
For procedure, the house of rep. will initiate it
and submit articles of impeachment to the
senate. The senate committee will be the one
trying it and the CJ will sit but will not vote. He
will preside if the pres is on trial.
The other discussion here would be the so-
called one year ban, for the filing for another
impeachment complaint against the same public
officer and again for the same ground. The
decisions of the SC, the rule now is:
The one year is supposed to be counted
from the filing and referral rule. It is not
literally on the date of the filing but
eventually on the date the complaint is
referred by the plenary to the appropriate
committee. The committee is supposed to be
the committee on good governance and
justice.
The reason why it is from the referral: it is when
the house of representative acted as a body on
the impeachment complaint.
If you noticed during the time of Pres Arroyo,
just to abuse this so-called one year ban, they
will file petitions for or articles or complaints for
impeachment against her. Each name shall use
the name of Atty. Oliver Lozano. He was the first
one to file every time there was an issue against
GMA, which he thinks is impeachable.
ART. XI
Section 3.
1. The House of Representatives shall
have the exclusive power to initiate
all cases of impeachment.
2. A verified complaint for
impeachment may be filed by any
Member of the House of
Representatives or by any citizen
upon a resolution 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.
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The Committee, after hearing, and
by a majority vote of all its
Members, shall submit its report to
the House within sixty session days
from such referral, together with the
corresponding resolution. The
resolution shall be calendared for
consideration by the House within
ten session days from receipt
thereof.
3. A vote of at least one-third of all the
Members of the House shall be
necessary either to affirm a
favorable resolution with the Articles
of Impeachment of the Committee,
or override its contrary resolution.
The vote of each Member shall be
recorded.
4. In case the verified complaint or
resolution of impeachment is filed by
at least one-third of all the Members
of the House, the same shall
constitute the Articles of
Impeachment, and trial by the
Senate shall forthwith proceed.
5. No impeachment proceedings shall
be initiated against the same official
more than once within a period of
one year.
6. The Senate shall have the sole
power to try and decide all cases of
impeachment. When sitting for that
purpose, the Senators shall be on
oath or affirmation. When the
President of the Philippines is on
trial, the Chief Justice of the
Supreme Court shall preside, but
shall not vote. No person shall be
convicted without the concurrence
of two-thirds of all the Members of
the Senate.
7. Judgment in cases of impeachment
shall not extend further than
removal from office and
disqualification to hold any office
under the Republic of the
Philippines, but the party convicted
shall nevertheless be liable and
subject to prosecution, trial, and
punishment, according to law.
The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose
of this section.
The other matter here is the consequence of the
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decision.
 If there an acquittal by reason of
failing to achieve the required
qualified majority of 2/3 of all
members of the Senate – the
impeachable officer shall be free from
whatever case against him, which shall
be dismissed. He shall be free from any
criminal prosecution on account of the
same subject of the impeachment
complaint.
 If there is a decision of conviction –
the conviction will not go beyond from
removing him from public office and
from perpetually disqualifying him to
hold any other public office or position.
However, because he has already been
impeached, the impeached officer is
now open for any criminal prosecution
for the same acts. The rules on double
jeopardy do not apply because,
impeachment proceedings are not
criminal in nature and so first
jeopardy will never attach.
The final discussion will be on the issue on:
whether decisions of impeachment courts
are subject to judicial review.
If you think about the grounds, which are defined
under existing laws: treason, bribery and graft
and corruption; perhaps that may have been
subject to judicial review or questioning, the
determination and finding of guilt by the
senate, if the acts complained and proven
during the trial do not amount to the same
criminal characterization and definition of
treason, bribery and graft and corruption.
The other matter is with respect to culpable
violation of the constitution and other high
crimes, and breach of public trust, it is largely
drawn by political alliances and it that sense, it
may be considered as a political question.
Again, going back to the case of GONZALES v.
OFFICE OF THE PRES, where the SC made
some characterization with those 3 other
undefined grounds, there is a possibility that the
SC will be able to exercise judicial review IF an
impeachable officer is found guilty despite the
fact that the evidence presented and the
allegations are not so serious as that based on
the characterization in Gonzales.
CJ Corona, when he was impeached, there was
supposed to be a petition before the SC
questioning the conviction, but you know, he will
be up against members of the court, majority of
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whom were his colleagues when he was still CJ. petitioners the subject of legislation
Probably, he did not want to place them in a is actually to control population
difficult situation of deciding against him, growth in the Philippines. I don’t
because we all know that is was a difficult time know if you have read the news
even with the courts, even the SC. Come to article yesterday that we have
think of it, who were the members of the senate reached the 100 Million mark
who found him guilty? Mas dautan pa silang already. Grabe na jud diay.
dako kay sa sa iyaha (Corona). Again, it is a #iyotpamore (HAHAHAHA) 101
political question and they found him liable on Million, can you imagine that?
the grounds of culpable violation, for failure to
file an accurate SALN. The SC agreed with the petitioners
LEGISLATIVE PROCESS that the real objective of RH law is
TITLES OF BILL really a law to control the population
ART. VI growth in the country.
Section 26. 1. Every bill passed by the
Congress shall embrace only one subject which But the question is: IS THE TITLE
shall be expressed in the title thereof. (RESPONSIBLE PARENTHOOD
No bill passed by either House shall become a AND REPRODUCTIVE HEALTH
law unless it has passed three readings on ACT OF 2012) VIOLATIVE OF
separate days, and printed copies thereof in its THAT BY FAILING TO INDICATE
final form have been distributed to its Members THAT THIS IS ACTUALLY A
three days before its passage, except when the POPULATION GROWTH
President certifies to the necessity of its CONTROL MEASURE.
immediate enactment to meet a public calamity
or emergency. Upon the last reading of a bill, no The SC took notice of the prenatal
amendment thereto shall be allowed, and the and post natal care provisions and
vote thereon shall be taken immediately the dissemination of information…
thereafter, and the yeas and nays entered in the
Journal. So upon the question, the SC made
The reason why a bill must be on one subject, mention on the one title one subject
which subject must be indicated in the title, is rule does not require the congress
there are 3 basic reasons: employ language of such precision
1. To prevent log rolling legislation to mirror or fully index the minute
2. To avoid misrepresentation or surprises details of the legislation. The rule is
on part of members of congress who are sufficient or sufficiently complied
to tackle the legislation – it’s like they if the title is comprehensive
have to know the subject of the enough to include the general
legislation by simply looking at the title. object which the statute seeks to
Perhaps taking judicial notice of the fact effect, where as in this case,
that they don’t actually read the rest of there is a finding that the textual
the bill (HAHAHA). analysis of the various provisions
3. To apprise the public of what the object showed that both reproductive
or subject of the legislation is, in order health and responsible
for them to be heard on account of due parenthood are interrelated and
process. germane to the overriding
The case of IMBANG v. OCHOA (721 SCRA objective to control population
146 [2014]), this is a case involving the RH Law, growth. So the title does not violate
RA 10354, which is entitled the responsible sec. 26 because there is a
parenthood and reproductive health act of 2012. connection of the title of the goal of
One of the issues raised there is that it violates achieving a sustainable human
sec. 26(1) of Art. VI. development. So if there are few
Because: Filipinos, there will be better
1. The title does not indicate the REAL development of the country. Daghan
subject of legislation – accdg to man gud kaayo ta gud. Mao nay

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problema.
REQUIREMENTS AS TO CERTAIN LAWS
We have discussed ARAULLO v. AQUINO III
(728 SCRA 1 [2014]) , on the DAP in relation to
its finding of unconstitutionality because it
violated sec. 25 (5) on transfer of funds.
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 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.
If, by the end of any fiscal year, the Congress
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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.
We made mention that the SC made use of the
term cross border transfer.
We reiterated the rules as provided in the consti
as to when can there be a valid augmentation.
There was a finding that there was actually
no savings that could have been transferred
because this “savings” were actually
unimplemented projects. The OP refused to
fund appropriated projects in order that they
can use these funds and ”transfer” them to
the projects that they wanted to fund. The SC
said that could not be done, since it can only
be done after the project is fully implemented
and there is an excess or because of other
circumstance, the project is or could no
longer be feasible.
We also discussed in part BELGICA v. OCHOA
(710 SCRA 1 [2013]), in relation to the
discussion on the power of congress with
respect to prohibition against non delegation of
administrative power, which we said violated
that because of what the SC used, of the term
which the SC has adopted as intermediate
appropriations. It is as if congress, as a body,
has authorized individual members of congress
to implement and execute and thereby
delegating it to the individual legislator. This
case is with reference ot the identification of the
projects to be funded and the amount of the fund
for that project. The SC said there should be no
delegation.
The SC also made mention of a violation of the
rule on appropriations. Appropriations must be
or money taken from the public treasury must be
for appropriations that congress has passed in
relation to art. vi. Sec. 25 (2)2, there must be
specific items of appropriations, both as to the
item to be funded and as to the amount of the
item funded.
The other reasons which we made mention
(there are 6 in the case)
2. It violated the doctrine of separation
of powers – made mention of the 4
phases of budget appropriation…
2
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.
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the congress approves the
appropriations bill (that is in the 2nd
phase budget authorization). The
next phase is budget execution,
which is with the executive and this
is thru the DBM. In this case of
PDAF, congress is allowed to
participate in the execution of the
budget. The SC said that violated
separation of powers.
4 phases of budget appropriation
(based sa akong notes sa outline,
kindly double check nalang )
II. Budget planning
III. Budget authorization
IV. Budget
execution/implementation
V. Accountability
3. It also violates the pres’ power of
item veto. – in your outline, the last
item there is item veto, for the veto
power of your pres (p.14 of your
outline).
The rule on veto with respect to pres
veto power:
GR: VETO ALL OR NONE AT ALL
The pres cannot veto a bill in part
and let the remainder stand.
But with respect to appropriations,
revenue and tariff bills; the pres is
given the line item veto. It is not
difficult to understand, revenue and
tariff bills because they are really
separable. Meaning either the
subject of tax or tariff, the pres can
delete, “veto”, certain items subject
of tax or tariff and let the remainder
stand. They are not related to each
other, the power is not required to
understand the GR: VETO ALL OR
NONE AT ALL.
The fact as to appropriations, what
is a line item veto? In this case of
BELGICA, the SC made mention
that an item of appropriation shall be
an item characterized by a single ..
a specified singular amount or
singular purpose, otherwise known
as line item.
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What does that actually mean?
There is one item, one specific fund.
The pres cannot delete one and let
the other remain.
Example: in one case, providing for
a retiring fund or benefits. The
appropriated item is the sum of
money, and it specifies the govt
employees who shall be entitled to
the benefits. The pres cannot delete
certain public officers there because
that is supposed to be a line item
and a line item must have to be
vetoed by the pres, for it to be a
valid veto.
If it is a line item, the rule is veto all
or none.
If there is only one specific item and
one specific amount, it goes without
saying that you have to read
everything. But if there are several
specific items, where in our example
retirement benefits, the pres cannot
delete “some of them” and let the
others stand because that violates
the line item veto.
It violates the right of power of pres
to veto, because the PDAF is a
lump sum appropriation.
Why is it that if it is a valid line item
veto, the pres is allowed to delete
some and let the remained some,
because the pres may want to fund
some and because it is an
appropriations bill, the pres should
not be held hostage in approving the
entire appropriation, even if there
are parts which he does not agree.
The pres in PDAF:
(b) Does not know how the
fund will be executed or its
extent because it is a lump
sum amount that is given to
each member of congress.
(c) What if the pres does not
want to release some
amount to the member of
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congress because he is in
the opposition? Then you
will be held hostage if we
follow the rule on line item
veto, delete all or approve
all, because these projects
are not specified and no
specific amount. What is
specified is the lump sum
appropriation for each of the
members.
(d) That should…executive
impoundment – you
remember that when the
pres does not want to
release funds, even if
appropriated in the general
appropriations act, say 20M
for the member of lower
house and he (pres) does
not feel like giving it to him
because he is a member of
the opposition, the pres can
refuse to release that
budget appropriated to that
member and the is called
executive impoundment.
The pres will impound the
money appropriated to that
member.
(e) Is that a valid move? YES,
sadly, because it is his
discretion when to release
and to whom it should be
released. We all know that
in the general
appropriations act, though it
provides for specific
amounts of money, those
appropriated items with
specific appropriated funds
are not fully funded. They
are still to be funded as govt
goes along in collecting
their share in taxes, and
there might be a shortfall
of revenue. And if there is a
shortfall, which is the usual
case, then that would be a
valid reason for the pres to
impound, even if already
provided in the general
appropriations law.
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4. The PDAF feature authorizing
individual legislator to intervene in
local matters, actually in conflict with
the functions of the local legislative
councils and that subverts local govt
autonomy.
 In real context, this is what
the ruling means: we all pay
patronage politics, we call
them congressmen (HAHA).
Here in Davao, pag
congressman ka duolon ka.
That is actually what it is.
 When the PDAF scam
came about. What were the
usual complaints? The
scholarships. The scholars
have to stop schooling. Why
is that so? Why is it not
possible? You know how
much each congressman
has given to SPMC
(Southern Philippines
Medical Center) to take care
of their constituents who are
in need of medical attention
– it is 200 M a year. Why
don’t the budget, include a
specific sum of money for
the local medical hospital, in
order to be accessible to
anybody who fall into the
category of poor? (ATTY.
MONTEJO FOR
PRESIDENT. HAHA) Why
can’t it be that certain sums
of money be appropriated
for USEP to be accessible
to poor but deserving
students?
 Even roads from my farm to
the market road are through
congressional funds. And
this is what SC is saying: it
destroys genuine
autonomy.
 Even to buy a fire truck.
Why does it have to pass
through the members of
congress? Why can’t these
amounts be appropriated for
these offices, for these
schools, these govt
hospital? And let them be
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accessible to anyone,
regardless of their political
affiliations?
 It’s actually politician
affiliation.
The 3 others I already mentioned before.
(reasons sa PDAF)
VETO POWERS OF THE PRES
From Atty. Montejo’s Outline:
NO “Pocket veto” in the Philippines. What is
a pocket veto? Art. I Sec. 7 of US Const; “If any
bill shall not be returned by the President within
ten days (Sundays excepted) after it shall have
been presented to him, the same shall be a law,
in like manner as if he had signed it, unless the
Congress by their adjournment prevent its return
in which case it shall not be a law.”
The important thing to remember is: LINE ITEM
VETO, because of the GR: VETO ALL OR
NONE AT ALL, does not change.
The only discussion with respect to this case of
PDAF on the line item veto – as we have
mentioned here, the item veto of the pres allows,
the concept of doctrine of inappropriate
provisions came about.
If there is an inappropriate provision in the
revenue or tariff bill, the pres can delete, we use
the term delete and NOT veto because that is
not actually part of the veto power of the pres.
Those provisions which he deems inappropriate,
because they should not have been part of the
appropriations in the revenue or tariff bill.
Is a provision of the revenue or tariff bill,
authorizing transfer of funds are an
appropriate provision or an inappropriate
provision?
In the case of ARAULLO3, the SC said that is
appropriate provision. The usual law on
transfer of funds or authorizing transfer of funds
are included in the general appropriations act.
- Let us continue -
Sept. 15, 2015- Zai
(Sorry daghan og mga parts na di jud nako
masabtan giningon ni sir)
JUDICIAL DEPARTMENT.
COMPOSITION.
Section 4.
1. The Supreme Court shall be composed
3
ARAULLO v. AQUINO III (728 SCRA 1 [2014])
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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
ook 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.
There is nothing much there except that
we have Resolution 2-89 in your outline. That is
an old resolution year 1989 but that establishes
the rule that the Supreme Court, en banc is not
an appellate court or reviewing court of the
division. We all know the Supreme Court sit in
the divisions of 3, 5 or 7 members. At present,
they sit a division of 5 members so there are 3
divisions. The en banc is not an appellate court
of the division under section 4, par 3, if the
division has failed to reach a decision, it will be
referred to court en banc. That is a
Constitutional rule but voluntarily, ordinarily,
again an en banc is not allowed to accept a
referral from the division to *** rule that before a
decision or order or resolution is issued by the
court by division, it may opt to refer the matter or
case to the court en banc provided it will jointly?!
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the members of the division would refer it to the

court en banc and the court en banc voluntarily
accepts the referral. So 3 conditions must be
present
1. There is no final order, resolution or decision
for that matter or case and
2. Both the majority of the division will refer the
matter and the majority of the court en banc will
accept the referral otherwise it should not be
acted upon by the court en banc.
3. And the decision of the court en banc to
accept the referral is final and un-appealable.

APPOINTMENT AND QUALIFICATION

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Section 7.
1. No person shall be appointed Member
of the Supreme Court or any lower
collegiate court unless he is a natural-
born citizen of the Philippines. A
Member of the Supreme Court must be
at least forty years of age, and must
have been for fifteen years or more, a
judge of a lower court or engaged in the
practice of law in the Philippines.
2. The Congress shall prescribe the
qualifications of judges of lower courts,
but no person may be appointed judge
thereof unless he is a citizen of the
Philippines and a member of the
Philippine Bar.
3. A Member of the Judiciary must be a
person of proven competence, integrity,
probity, and independence.
Section 8.
1. 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
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.
2. The regular members of the Council
shall be appointed by the President for a
term of four years with the consent of
the Commission on Appointments. Of
the Members first appointed, the
representative of the Integrated Bar
shall serve for four years, the professor
of law for three years, the retired Justice
for two years, and the representative of
the private sector for one year.
3. The Clerk of the Supreme Court shall be
the Secretary ex officio of the Council
and shall keep a record of its
proceedings.
4. The regular Members of the Council
shall receive such emoluments as may
be determined by the Supreme Court.
The Supreme Court shall provide in its
annual budget the appropriations for the
Council.
5. The Council shall have the principal
function of recommending appointees to
the judiciary. It may exercise such other
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functions and duties as the Supreme
Court may assign to it.
Section 9. The Members of the Supreme Court
and judges of lower courts shall be appointed by
the President from a list of at least three
nominees preferred by the Judicial and Bar
Council for every vacancy. Such appointments
need no confirmation.
If you have been reading the Philippine Daily
Inquirer columns of Fr. Bernas and of Retired
Supreme Court Justice Artemio Panganiban.
Artemio Panganiban had the Article dated
August 23, 2015 saying that the new President
after 2016 Election will not be able to appoint a
justices who are supposed to retire during the
remaining period or remaining months of his
term and that it is covered by the appointments
ban under Art 7, Sec 15 and PNoy will have also
2 Justices, I think who's retiring during his term
up to June 30, 2016 but the retirement by
reason of age would have to be covered by the
retirement ban. Those ** that is accurate
because they have read the case of De Castro
a vs JBC 615 S 666(2010); 618 S 639 (2010)
<duha ang naa sa outline> appointments to the
judiciary especially to the Supreme Court is not
covered by the rule on midnight appointments.
Even if the vacancy occurs during the so
called 2 months before the election up to the
end term because of the mandatory rule that the
Supreme Court must be filled up within 90 days
from the occurrence of the vacancy. It must
have to be filled up. I don't know why he
includes that in his column.
Quo vadis daang matuwid’?
By: Artemio V. Panganiban @inquirerdotnet
Philippine Daily Inquirer
12:52 AM August 23rd, 2015
The cases initiated by the administration of
President Aquino, under its “daang matuwid”
(“straight path”) anticorruption program, will not
be finally decided when he ends his term on
June 30, 2016. This is the inevitable conclusion
reached by my last three columns.
New president. There is one exception: The
ouster of then Chief Justice Renato C. Corona
was completed on May 29, 2012, when the
Senate issued its guilty verdict. This judgment
was instantly final. Corona relinquished his office
without any attempt to contest it in the Supreme
Court via a petition for certiorari.
However, his tax evasion and perjury raps, like
all the other daang matuwid filings, including the
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second and third batches of the PDAF (Priority
Development Assistance Fund) cases, will not
be finally resolved by June 30, 2016.
What will happen to all these daang matuwid
cases? On a broader scale, what is the future of
the straight path? Where will it lead to? Quo
vadis daang matuwid?
My answer: Daang matuwid’s future will rest on
the new president to be elected on May 9, 2016.
Though the Office of the Ombudsman and the
Supreme Court are deeply involved in these
cases, their investigation, prosecution and
speedy resolution will depend largely on the new
president. Why?
Let me count the reasons. First, the new
president will appoint a new secretary of justice
and a new solicitor general. As we have seen,
the daang matuwid cases were initiated,
investigated, and subsequently filed by the
justice secretary in the Ombudsman or in the
courts.
The justice secretary gathered and preserved
the evidence, and granted immunity to key
witnesses under the Witness Protection
Program. If the new justice secretary will not
tend to the cases diligently, they will probably
wither and die. The solicitor general, on the
other hand, is the counsel of the Department of
Justice and the Ombudsman when the cases
reach the appellate courts. A lackadaisical
solicitor general will also mean death for these
cases.
Second, Ombudsman Conchita Carpio Morales
will end her term of seven years on July 28,
2018. The Constitution bars a reappointment.
Being solely responsible for filing and
prosecuting graft cases against top public
officials, the new appointee’s courage,
independence, diligence and probity will be
crucial in any anticorruption program.
By the time Morales retires, the cases she
nurtured will probably not yet mature to final
judgment. Her successor will need big feet to fit
into the big shoes she would leave.
Recall that the Special Division of the
Sandiganbayan took six years of continuous trial
before it could judge the plunder case of former
president Joseph Estrada. Had he appealed his
conviction to the Supreme Court instead of
accepting a pardon, the case would have
dragged on a few more years.
Third, 11 of the 15 incumbent Supreme Court
justices will reach the compulsory retirement age
of 70 during the six-year term of the new
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president who will therefore name their
replacements. Justices are expected to be
independent of the appointing authority.
However, a president always appoints
magistrates to propel his/her vision of
governance.
So, a new president who is passionate in
pursuing, nay, in accelerating and improving the
anticorruption campaign will naturally name
magistrates who would be as passionate in
ridding society of graft.
Justices are given wide discretion to determine
the existence of probable cause, or of strong
evidence, or of proof beyond reasonable doubt.
This is why justices often disagree in
appreciating evidence and in interpreting laws.
Even in the United States, the appointment of
new justices is dependent on their ideological
compatibility with the president. Republican
presidents appoint “conservatives,” while
Democrats choose “liberals.” (See my July 12
and 19, 2015 columns for the ideology of
American jurists.)
Retirees in 2016-2022. Who are the 11 retiring
justices? In 2016, they are Martin S. Villarama
Jr. (April 14), Jose P. Perez (Dec. 14) and Arturo
D. Brion (Dec. 29); in 2017, Bienvenido L. Reyes
(July 6) and Jose C. Mendoza (Aug. 13); in
2018, Presbitero J. Velasco Jr. (Aug. 8) and
Teresita J. Leonardo-de Castro (Oct. 8); and in
2019, Mariano C. del Castillo (July 29), Francis
H. Jardeleza (Sept. 26), Lucas P. Bersamin
(Oct. 18) and Antonio T. Carpio (Oct. 26).
Only Chief Justice Maria Lourdes P. A. Sereno,
Justices Diosdado M. Peralta, Estela M. Perlas-
Bernabe and Marvic M.V.F. Leonen will not be
replaced by the new president.
Peralta will retire on March 27, 2022, and
Bernabe on May 14, 2022, within the last few
months of the new president’s term. However,
the Constitution bars any appointment “two
months immediately before the next presidential
elections up to the end of (the president’s) term.”
Their compulsory retirement falls within this
prohibited period.
The same bar on “midnight appointments”
precludes P-Noy from naming the successor of
Villarama who is due to retire on April 14, 2016,
within the two-month prohibition period. Of
course, Villarama can retire voluntarily ahead of
this period, in which case, P-Noy could appoint
his successor.
Clearly, with the prudent use of his/her
appointing power, the new president could
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change the face of the Supreme Court, which in
turn could effect sweeping reforms in our justice
system. Indeed, it takes both people and system
to neutralize the “ACID” problems that corrode
justice: 1) access to justice by the poor, 2)
corruption, 3) incompetence of some judges and
4) delay in the delivery of quality justice.
Like the economy, judicial reforms need time
and effort to mature, bear fruit and become truly
inclusive. * * *
Appointments to the Judiciary shall be
made by the President from a list of at least
three nominees to be submitted by the Judicial
and Bar Council . And constitutionally only the
Supreme Court qualifications are all provided for
by the constitution as to age, natural-born
citizenship be proven ** integrity, probity,
independence while rest of the lower courts,
they can be subject to qualifications as provided
for by Congress. The requirement of natural
born citizenship is not provided in the
Constitution with respect to collegiate court
justices and lower court judges but if you have
read the case of Justice Ong. Before he was
dismissed from Sandiganbayan Justice Ong
applied from the Supreme Court, but there was
a question on his citizenship because there was
no proof that he is a natural born or there is a
question on whether he is a natural born citizen.
While it is provided for in the Constitution that
Supreme Court Justices must be natural born
citizen, what about the lower court judges or
justices of collegiate court . The qualifications for
lower court judges and the justices of lower
collegiate court are all provided in the Judiciary
Reorganization Act of 1980, BP 129. All their
qualifications are there and it is provided that all
judges from the lower courts up to the appellate
court (also known as intermediate appellate
court and later court of appeals), they must be
natural born ciizens. So in the case of Justice
Ong, he was never appointed in Supreme Court
because his application was never considered
because of the question of his citizenship.
Section 7. Qualifications. – The Presiding
Justice and the Associate Justice shall have the
same qualifications as those provided in
Constitution for Justice of the Supreme Court.
And with respect to appointments in lower
collegiate courts and lower court judges, the 90-
day is reckoned at the time the JBC has
submitted the list of its 3-nominees. In the case
of De Castro vs JBC, there were some
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interesting questions there. While it may not
have been resolved by the Supreme Court, it
was nevertheless raised by some justices and
even mentioned in ** decision although as
obiter. One of which is the procedure for ** an
applicant for the Judiciary. The JBC will get
applicants for the judiciary and all applicants
must go through the procedure. And the 7
members of the JBC will have to *** 3 with
respect to the votes are considered. The
problem or the question raised was, if a sitting
justice in the Supreme Court, associate justice
will apply for the position of chief justice, Will his
application be processed by the JBC? Is there a
** because of the constitutional theory that
clearly states that all appointments to the
judiciary must have to pass through the JBC.
But if you are already a sitting justice in the,
Supreme Court, will your application for that
position of chief Justice be processed like you
are an outsider?
No problem with those who are not yet members
of the Supreme Court because even if you are
lower court judge or a justice in Sandiganbayan
or justice of Court of Appeals or Court of tax
Appeals, because the Supreme Court is not
different court then your application must have
to be processed. But if we say you are a senior
associate justice, should your application be
processed? Because what if the JBC will not
consider your application.
The second question raised there, although not
actually answered is the fact that, The President
is supposed to chose from among the three
nominees submitted in the list submitted by JBC
as to who to appoint for a position including that
of the Chief justice. The question is "can the
President, not request but direct the JBC to
submit more names because he does not like
the 3 names submitted by the JBC. There were
discussions like the President is limited as to his
choices as to who among the nominees who
were included in the JBC list. The appointing
authority of the President is limited to such list
and could never direct the JBC to actually
submit more names other than those names in
the list. Again, these are questions.
The other matter which was substantially
discussed in the matter of Judiciary with respect
to Supreme Court is that if the vacancy is
anticipatory because of a retirement, the JBC is
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not precluded from processing applications even
before the retirement day comes. And the SC
made mentioned that it should be before and not
after because the 90-day period will be
unnecessarily shorten. So that if the reason for
the vacancy is anticipated retirement, the JBC
can now process all the applications for the
position or slot in the Supreme Court because
the 90-day period where the Constitution is
mandatory. But then again, it goes without
saying that, even if the appointment is made
outside the 90-day period, it will nevertheless be
valid and will not be considered unconstitutional.
This was discussed in relation to the prohibition
on midnight appointments to such appointment
like, I think yesterday the President finally made
an appointment to the Civil Service Commission
chairperson. Meaning if there is a vacancy even
if the Constitution says it must have to be **, the
appointment to the position, it will not in fact
render the appointment invalid or
unconstitutional.
SALARY, FISCAL AUTONOMY AND NON
DIMINUTION OF APPROPRIATIONS OF THE
JUDICIARY AS WELL AS THE AUTOMATIC
RELEASE OF THE APPROPRIATIONS AS
APPROVED BY THE CONGRESS are all part of
the safeguards on Judicial Independence. These
4 are constitutionally imposed limitations of
dispute to assure that the Judiciary will continue
be independent from the Political branches of
the government.
With respect to Salaries, their salary cannot be
diminished during their tenure although they can
be increased.
The provision on Fiscal Autonomy and part of
the authority or part of the benefit of this Fiscal
Autonomy is that, the Supreme Court is not
subject to pre-audit procedure by COA. It is
subject to post-audit procedures.
With respect to Non-diminutions of
appropriations, when the DAF came about in the
news, you may have read that, there were
insinuations that SC or the Judiciary were also a
beneficiary of unconstitutional Cross border
transfers(?). Because apparently there were
request to the SC ** the chief justice to fund
certain projects in the judiciary. Most of them are
court houses or court buildings whether
constructed or renovated and a lot of people
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were reacting because they were saying that
the Cross border transfers made by the
President to other branches are not
constitutional and yet the SC was also the
recipient of the Cross border transfers.
What most people do not know is
that because of the prohibition of non diminution
of appropriations of the Judiciary, the Congress
can only maintain what has been appropriated
last year or the current year or increase it but
never diminished what has been appropriated
for previous year as to this year on
the infrastructure appropriations for the Judiciary
are not placed in the Judiciary. That is why
almost all the court houses here are under the
department of Justice, for the simple reason
that. for example this one-billion fund for all the
court houses in the Philippines to be budgeted
say in 2015. In 2016, you ** out of the budget
because the Constitution prohibits it. That is why
the infrastructure, it is never in the judiciary. You
cannot find that in the appropriated funds for the
judiciary. And a lot of people do
not understand that. Why it is so that the SC will
ask from the executive thru the DBM that
these infrastructure project be funded. Again, it
is because of the part of the safeguard of
Judicial independence that appropriations for
Congress cannot be diminished. It can only be
maintained or it can be increased.
And another thing that came about which was in
the news was on the supposed investigation by
Congress on the news for that Judiciary
Development Fund. Part of all the payments
every time a case is filed in the court goes to the
JDF. And the JDF is supposed to be part of
the appropriations for the additional benefits of
the members of the Judiciary. And Sen.
Pimentel was saying he will conduct of
investigation to see how the JDF had been
spent and whether, because this was by
law, whether there is a need to amend the law
so that Congress can have control over JDF. It
goes again to the Non-diminutions of
appropriations because all the funds taken
under the JDF are automatically part of the
appropriated funds of the Judiciary. The
question is, can Congress touch that? Can
congress take that from the judiciary, because it
might be so that it is a violation of Non-
diminutions of appropriations. So after that, it
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was never again seen in any space of
newspaper because there is a view that that
cannot be done. It cannot be undone as it is
done because it is already part of the
appropriated funds of the Judiciary.
It goes even further in one case, the case of In
Re COA Opinion 678 S 1 (2012) that the SC
discussed the entire so called division of
dependence in relation to fiscal autonomy. The
SC can even use its own previously COA
approved formula for putting a value on a
property in which it would sell. Because this
case involves certain properties, cars included,
to be sold to the retiree justices. **When they
retire, most of them will get part of the funds
**. The JDF was use to fully furnish their
summer house in Baguio. So there was a
question on whether the use of that fund or part
of the fund to buy new furniture, new curtains to
fully furnish the summer house was consistent
with the objective or purpose of the JDF. SC
said, these are Judiciary Funds, and for so long
as they are not spent in violation of COA-
existing rules and regulations, included the
evaluation of the cars also. Here in the
Philippines, cars are supposed to be
deteriorating or diminishing value of 20% per
year so at the end of the 5 years, the book value
of the car is only 1Php. So it is sold to the justice
for a couple of thousands, based on the COA
approved valuation formula and that is SC's
discretion, and COA cannot touched that
because that is part of fiscal autonomy in
relation to judicial independence.
The other matter there in relation to judicial
independence is Automatic release of
Appropriations and that was the ruling in the
case of ******( Sorry, di jud nako madunggan
ang kaso :( ) which was applied in the Judiciary
as well. We all know that the executive prepares
the budget and Congress approves it, all the
moneys there are not fully funded. while your
Article 6, Section 25 par 3, states that "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." But
with respect to the General's appropriations bill,
that is not required. So while, let's say the
budget next year is 1.3 Trillion, not all of that are
funded. Government would still have to get
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money funded and so there may be a short or all
appropriations may not be funded at the same
time. If that happens, all government offices
suffer but because of the provision on non
diminution. The appropriated amount of
Judiciary shall be released regualrly, it means
that they should not be subjected to any
precondition before release. While others will
have to request for release, special allotment,
release order, SARO(?) if you have come across
that term, the judiciary will not be required to do
that. All appropriations for judiciary should
be released. If there is a revenue shortfall, well,
the judiciary will also suffer. The SC said the
judiciary must have preference in the list. So
again while the revenue shortfall will result into
most appropriated items not funded if there is a
fund, the judciary shall have the preference and
the other will just follow because of the so called
Fiscal Autonomy.
And finally the SECURITY OF TENURE.
Members of judiciary shall serve until retirement
age 70, for so long as they are in so called good
behavior. And as we all know they are
impeachable officers so they cannot be removed
without cause until they are impeached. Can a
member of SC be charged of a case, criminal or
civil? The answer will have to be related to
whether it will effectively remove(?) him from his
office, in case it will not effectively remove? him
from his office, the case will prosper because
they do not enjoy the immunity of the President.
But if the case will effectively removed(?) them
from office, the case will not prosper in the
meantime.
But with respect to other judges of lower court
and lower collegiate court justices, they are
subject to the Power of the SC to discipline. This
REMOVAL is always undiscussed in relation to
SC administration, the last reorganization was
held in 1988 or 1981 by reason of law that was
the last Reorganization Act. And there was a
question whether the "Reorganization Result" **
because again ordinary judges or justices of
collegiate court can only be removed with cause.
The SC had the occasion to discuss the
difference between removal and reorganization.
When the judge is removed, the position
remains. So there is vacancy that is the reason
for severance of service that reason must have
to be based on just and valid cause.
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But with respect to Reorganization, SC said
there is severance from employment ** because
the position is no longer existing. So what the
SC get was to literally interpret the Judiciary
Reorganization Act of 1980 by saying that
Peace courts before is no longer existing
because it has been change to Municipal Trial
Court in Cities. Same with the CA because CA
before was IAC and the CFI has been changed
to Regional Trial Court. It was the ruling
because it was during the martial law. After that,
no reorganization was had until the 1986
Revolution happened, where by reason of the
provisional of government, "Revolutionary
Government", Cory Aquino's power, "All
members of the Judiciary were made to tender
courtesy resignations" When we say all, it
means all of them including the chief justice and
if you remember the lawyers** case, one of the
cases filed before the SC questioning the
legitimacy of the Aquino Government, you would
not expect the SC at that time or any other time
thereafter to declare that the Aquino
Government is not legitimate for the simple
reason that the chief justice and all 14 associate
members of the SC were "re-appointed" by
Cory, who took their respective oath before her.
By reason of that fact alone, you don't expect
them to rule against the legitimacy of the Aquino
Gov't otherwise there "re appointment" in the SC
will never be valid.
JURISDICTION
The limitation of Congress on Jurisdiction of the
SC is that a Congress cannot, for obvious
reason, legislate to affect the jurisdiction of the
SC as provided for in the Constitution. **But
importantly from the matter of appellate
jurisdiction, the SC has appellate jurisdiction in
some cases as mentioned in Article 8, section 5.
Section 5. The Supreme Court shall have the
following powers:
1. Exercise original jurisdiction over cases
affecting ambassadors, other public
ministers and consuls, and over
petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas
corpus.
2. Review, revise, reverse, modify, or
affirm on appeal or certiorari, as the law
or the Rules of Court may provide, final
judgments and orders of lower courts in:
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a. All cases in which the
constitutionality or validity of any
treaty, international or executive
agreement, law, presidential
decree, proclamation, order,
instruction, ordinance, or
regulation is in question.
b. All cases involving the legality of
any tax, impost, assessment, or
toll, or any penalty imposed in
relation thereto.
c. All cases in which the
jurisdiction of any lower court is
in issue.
d. All criminal cases in which the
penalty imposed is reclusion
perpetua or higher.
e. All cases in which only an error
or question of law is involved.
3. Assign temporarily judges of lower
courts to other stations as public interest
may require. Such temporary
assignment shall not exceed six months
without the consent of the judge
concerned.
4. Order a change of venue or place of trial
to avoid a miscarriage of justice.
5. Promulgate rules concerning the
protection and enforcement of
constitutional rights, pleading, practice,
and procedure in all courts, the
admission to the practice of law, the
integrated bar, and legal assistance to
the 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.
Appoint all officials and employees of the
Judiciary in accordance with the Civil Service
Law.
And limitation there is Congress cannot enact a
law increasing the the appellate jurisdiction of
the SC without the court's prior consent for
concurrence. And the first that has been decided
from that was the law establishing or creating
the Office of the Ombudsman or RA 6770. In the
case of Desierto, the SC clarified that the law or
the provision of RA 6770 granting appellate
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jurisdiction to SC in some cases as mentioned in
one of the provisions there was unconstitutional.
It cannot be passed by the Congress without the
concurrence of the SC.
Other than that the cases which the SC has
jurisdiction as provided for in Constitution, en
banc and division cases. En banc, we have
constitutional issues were cases when the SC
reviews the exercise of the President as
Commander-in-chief under Article 7, section 18.
Section 18. The President shall be the
Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes
necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion,
when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial
law. Within forty-eight hours from the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus, the
President shall submit a report in person or in
writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its
Members in regular or special session, may
revoke such proclamation or suspension, which
revocation shall not be set aside by the
President. Upon the initiative of the President,
the Congress may, in the same manner, extend
such proclamation or suspension for a period to
be determined by the Congress, if the invasion
or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within
twenty-four hours following such proclamation or
suspension, convene in accordance with its
rules without need of a call.
The Supreme Court may review, in an
appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the
operation of the Constitution, nor supplant the
functioning of the civil courts or legislative
assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over
civilians where civil courts are able to function,
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nor automatically suspend the privilege of the
writ.
The suspension of the privilege of the writ shall
apply only to persons judicially charged for
rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the
writ, any person thus arrested or detained shall
be judicially charged within three days,
otherwise he shall be released.
Under section 4, when the division vote is not
met and in the same section when there is a
reversal of the doctrine previously issued by the
Supreme Court. When the SC acts as the
Presidential Electoral Tribunal en banc, and in
disciplinary cases where the penalties are
dismissal, disbarment or suspension of more
than one year or a fine of more that 10,000 or
both.
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
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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.
And in relation to its appellate powers, the SC
under Section 5(2), there are listing down there.
Section 5. The Supreme Court shall have the
following powers:
1. XXXX
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.
All cases in which only an error or question of
law is involved
In the case of Republic vs Ortigas, 717 S 601
(2014), is a matter on the questions of law. In
legal practice, it has always been risky for the
opposition to go directly to the SC. But
sometimes, there are cases which involved only
question of law. But in the ordinary course of
procedure, it has to go through the CA before
going to SC because once it goes to SC and
your petition is dismissed, then you are finished.
You can no longer seek for another review or
plea. So when is a question said to be involving
a mere question of law, it shall be directly
appealed to the SC. In your cases there, it
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simple means that when the case involves the
correct application or interpretation of a law on
an admitted or undisputed settled facts, then
that is a case involving a question of law.
Meaning, when the facts are admitted or not
disputed and the only issue is what law to be
applied in those given set of facts, then you can
go directly to the SC on a pure question of law.
Another issue in the case of Rep vs Ortigas is
the manner of appeal. I just found it interesting,
can an order denying a motion for
reconsideration be appealed? Of course you
know that in your remedial law that ordinarily, it
cannot be appealed, because it is an
interlocutory order. However in the denial of the
motion for reconsideration adjudicating on the
merits, you can appeal that. Because not all
orders denying the MR is an interlocutory order.
So for example, you file a complaint, the
defendant filed a motion to dismiss, and the
court granted the motion to dismiss. You filed a
motion for Reconsideration on the plaintiff, the
court denied your MR, can you appeal that order
denying your MR? The answer is yes because it
is an adjudication on the merits, your complaint
has been dismissed. Where do you go from
there? You have to appeal that for denying the
MR. Of course the order granting the dismissal.
REPUBLIC OF THE PHILIPPINES,
represented by the DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS
(DPWH), Petitioner, vs. ORTIGAS AND
COMPANY LIMITED
PARTNERSHIP, Respondents. G.R.
No.171496 March 3, 2014
There is a question of law when the appellant
raises an issue as to what law shall be applied
on a given set of facts.39 Questions of law do
"not involve an examination of the probative
value of the evidence presented."40 Its resolution
rests solely on the application of a law given the
circumstances.41 There is a question of fact
when the court is required to examine the truth
or falsity of the facts presented.42 A question of
fact "invites a review of the evidence."43
The sole issue raised by petitioner Republic of
the Philippines to the Court of Appeals is
whether respondent Ortigas’ property should be
conveyed to it only by donation, in accordance
with Section 50 of Presidential Decree No. 1529.
This question involves the interpretation and
application of the provision. It does not require
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the Court of Appeals to examine the truth or
falsity of the facts presented. Neither does it
invite a review of the evidence. The issue raised
before the Court of Appeals was, therefore, a
question purely of law. The proper mode of
appeal is through a petition for review under
Rule 45. Hence, the Court of Appeals did not err
in dismissing the appeal on this ground.
In relation to section 5, par 5 is your procedural
making powers.
5) Promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice, and procedure in all courts,
the admission to the practice of law, the
integrated bar, and legal assistance to the
under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless
disapproved by the Supreme Court.
There is nothing much there, it has not changed
so far except that you may notice, and I have
because of some friends, that the ruling now of
SC includes admission to the practice of law. If
you read the Rules of Court after Rule 137,
(gicheck nako kay Rule 138 ang Admission to
the Bar). And supposedly, the grade to be
admitted in the Bar is, you must get an average
of 75 and you must not get a grade lower that
50, that is supposed to be the qualifying mark.
Even if your grade is 90+, but then you have a
grade of 49 then are supposed to be
disqualified. In recent years, it must not been
unknown to you, the SC has lowered the grade
for passing the Bar, there is nothing to take
away against those who passed on a lower
grade or who passed it, just to be clear of that,
but what about those who in the past did not
passed because the passing grade is 75 (di ko
sure if tama akong pagkadungog ani). I have a
classmate before who got a grade of 74.89, he
didn't make it because the SC did not lower it.
So can the SC ** against its own rules by
lowering the passing grade of bar? This is a
SC(hahahaha)
The more important question is, can the
congress enact a law affecting any of the
matters part of the rule-making powers of the
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SC? This is asked because in the 1935
Constitution, the Constitution provides
that Congress shall have the power to repeal,
alter or supplement the rules concerning blah
blah. In 1973, it is provided which however may
be repealed, altered or supplemented by the
Batasang Pambansa, meaning the Rules
promulgated by the SC can be repealed, altered
or supplemented. That is not found in the 1987
Constitution. The question is can the Congress
enact a law affecting this Rules? Meaning
repealing them, amending them? You have your
case of Echegaray vs Sec 301 S 96 (1999)
where the SC categorically stated that Congress
have no longer have power. The 9187
Constitution expanded the rule-making power of
the SC and took away the power of Congress on
such Rules. Before the Echegaray ruling, there
are 2 points view or schools of thought:
1. It is no longer with Congress because the
1987 Constitution omitted it
2. It need not be there because again,
the Constitution is not a question of what has
been provided, the Constitution is a question of
what has been limited. So if the Constitution
does not limited it, meaning it can be exercised.
But Echegaray clarified it by saying the
Congress had no longer that power. Rightfully
so because under the 1935 Constitution and in
1971, in what is so called "bar- flunkers case"
was decided by the SC because the Congress
opted to lower the passing grade, the SC said
Congress cannot enact a law lowering the
passing grade of bar exam because as that is
part of the rule-making power of the SC. Now
the SC has been lowering it.
ADMINISTRATIVE POWER OF SUPREME
COURT
Just a rundown of it, on section 6 supervision of
lower courts.
Section 6. The Supreme Court shall have
administrative supervision over all courts and
the personnel thereof.
All these cases here would just tell us that when
there is case that is filed in relation to the
ADMINISTRATIVE LIABILITY, let's be clear on
that, of all lower court judges, lower collegiate
court judges and all court personnel, it cannot be
under the jurisdiction of Ombudsman for
investigation before the SC has exercised its
primary jurisdiction. The power of Supervision,
remember we discussed this in the power of **
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include the power to discipline. So the SC has
the power over ALL, from the lower collegiate
court justices, lower court judges and all court
personnel. NO ADMINISTRATIVE CASE CAN
BE ENTERTAINED BY THE OFFICE OF THE
OMBUDSMAN even if the charges *** by reason
of the creation of the Constitution mandate, All
court employees are under SC supervision.
What about criminal cases? Criminal cases must
have to be distinguished if the CRIMINAL
LIABILITY arose out of administrative obligation
or duty of the judge or court personnel, then it
must have to be in the SC first on the
administrative aspect. But if the CRIMINAL
CASE OR COMPLAINT is unrelated, then the
Ombudsman has the jurisdiction to conduct
preliminary investigation against a judiciary
employee. Do you remember a felony in your
revised penal code for maliciously rendering
unjust judgement order or resolution? Of course
you do.
Article 204. Knowingly rendering unjust
judgment. - Any judge who shall knowingly
render an unjust judgment in any case submitted
to him for decision, shall be punished by prision
mayor and perpetual absolute disqualification.
Can a judge or justice be charged with the
Ombudsman criminally for maliciously rendering
unjust decision or resolution, a felony under the
RPC? It cannot prosper until the SC exercised
its supervision for a reason that the criminal
aspect is related to his administrative duty or
obligation to render decisions, orders or
resolutions. Again if unrelated, then the
Ombudsman has the jurisdiction.
TEMPORARILY ASSIGNED JUDGES TO
OTHER STATIONS IN THE PUBLIC
INTEREST
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.
The assignment is temporary it’s obvious, the
appointment to the judiciary is permanent. The
appointment is made by the President, enact by
the SC. So only temporary appointments can be
had. The judge concern must have to concur or
agree with his ** if temporary. (42:37 Guys sorry,
di jud madunggan )
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ORDER A CHANGE OF VENUE OR PLACE
OF TRIAL TO AVOID MISCARRIAGE OF
JUSTICE
4) Order a change of venue or place of trial to
avoid a miscarriage of justice.
This is more practiced in criminal cases. In civil
cases, venue can be ** upon. But in criminal
cases, venue is jurisdictional and becasuse it is
where more witnesses are present, then it must
have to be tried there if the elements of the
crime have been committed there. But there are
certain situations when by reason of the nature
of the criminal complaint, witnesses may not
come forward and testify, so upon request the
SC court may order a change of venue. And this
had happened in several cases.
DISCIPLINE OF JUDGES
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.
APPOINTMENT OF OFFICIALS AND
EMPLOYEES OF ENTIRE JUDICIARY
This does not include justices of lower collegiate
court and judges of the lower courts. From the
clerk of courts down to the last court employee,
that is part of the administrative duty or power of
the SC, part of its appointing authority in the
judicial function.
6) Appoint all officials and employees of the
Judiciary in accordance with the Civil Service
Law.
Sept. 16, 2015-Rhoda
MANNER OF SITTING AND VOTES
REQUIRED
Art VIII, Section 4.
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
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ninety days from the occurrence thereof.
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.
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.
Rule 56, Sec 7 (1997 Rules on Civil
Procedure)
Section 7. Procedure if opinion is
equally divided. — Where the court en banc
is equally divided in opinion, or the
necessary majority cannot be had, the case
shall again be deliberated on, and if after
such deliberation no decision is reached, the
original action commenced in the court shall
be dismissed, in appealed cases, the
judgment or order appealed from shall stand
affirmed; and on all incidental matters, the
petition or motion shall be denied.
Rule 125, Sec 3 (2000 Rules on Criminal
Procedure)
Section 3. Decision if opinion is equally
divided. — When the Supreme Court en banc
is equally divided in opinion or the
necessary majority cannot be had on
whether to acquit the appellant, the case
shall again be deliberated upon and if no
decision is reached after re-deliberation, the
judgment of conviction of the lower court
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shall be reversed and the accused acquitted.
(3a)
The concept of shifting majority for purposes of
determining whether the court has validly
rendered the decision… Under the previous
Constitutions, there was an exact number of
votes required for a decision of the Supreme
Court to be valid. At present, the court, the
majority of the members who actually took part
in the deliberations on the issues on the case
voted thereon shall be the majority required.
There has to be a quorum first to determine
whether or not the court can validly conduct
business. The majority of the quorum will
resolve the decision. For so long as there is a
quorum, the majority will shift depending on the
number of justices who actually took part and
deliberated on the issues.
It is also required that the dissenting opinions of
decisions must have to be appended to the
decision. The dissenters are required to make
their dissenting opinions, although we have seen
in the cases that some justices will just concur
with the dissenting opinion of another justice.
Those who did not take part or those who
abstained, or those who have inhibited
themselves must state the reasons for the
inhibition. The question is: are those who have
abstained or inhibited, should their number be
considered for the purpose of determining
quorum? Those who have abstained, they are
considered to be included. But those who did not
actually take part because they have inhibited
themselves, they shall not be considered.
A special requirement for decisions of the SC in
division is that if they are sitting in divisions, in
no case shall there be a vote of less than 3. So
at present since the division is of 5 members, 3
is required for a valid vote because that is
quorum, and all 3 must have to vote similarly for
there to be a valid decision.
And in relation to the Rules of Court, Rule 56,
Sec 7, in division cases and the division has
failed to reach a decision, they would have to
refer it to the Court en banc. And if the court en
banc has failed to reach a decision, in civil cases
there will have to be deliberation similar in
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criminal cases under Rule 125 and it may that
the court will come up with a vote already. But if
the court still fails to come up with a vote in civil
cases, original decisions will be dismissed. If it is
an appealed case, the appealed decision shall
be affirmed, all incidental matters, like motions
for reconsideration, are to be denied.
In criminal cases after the hearing, the SC en
banc has still failed to come up with a decision
or a vote, the judgment of conviction shall be
resolved into an acquittal.
In 1935, the vote was 2/3 and that does not shift.
In the 1973 Constitution, there is a required
number of 8 and constitutional issues, there was
a minimum number of 5. That was the reason
why in the case of Javellana v. Secretary, the
SC has not declared the proclamation, simply
because there was failure on the part of the
court to reach the required number of votes.
REQUIREMENTS AS TO DECISIONS
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.
Section 14. No decision shall be rendered by
any court without expressing therein clearly
and distinctly the facts and the law on which
it is based.
No petition for review or motion for
reconsideration of a decision of the court
shall be refused due course or denied
without stating the legal basis therefor.
Now the other requirements for decisions, under
Sections 13 and 14, only this has been the
subject of several commentaries. In fact, the
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ponente in the decision of the SC granting bail
(to Enrile) has filed an administrative complaint
against Leonen… Because he wrote a
dissenting opinion and he included possibly
what took part on the deliberations.
Dissenting opinions are supposed to be included
so that the public and the parties, especially we
know, how the court has voted on the issues
and to see whether there’s a point to the
dissenting opinion. As we all know, a dissenting
opinion is not part of our legal system. But in
some instances, the dissenting opinion may
thereafter the rule of the majority. So, when
Justice Marvic Leonen somehow discussed
what were deliberated upon during the required
consultation because part of the procedure for
granting a decision under the Constitution is that
decisions must have to be reached upon
consultation with the members of the court, and
this applies to the lower collegiate courts. And it
is only assigned to the writer when there is a
decision already reached. And apparently,
according to Marvic Leonen, the first draft was
not the one actually circulated for the signing of
the decision by the SC. Have you read the Enrile
bail case?
In the news, it will seem that there is now a…
that the SC apparently granted bail because the
evidence of guilt is not strong. I think that the
reporters made a report that in the
Sandiganbayan meeting, there were actually no
evidence against Enrile accepting any of the
PDAF in the Napoles hearings.
In the decision of the SC, the main decision
granting bail to Enrile on 2 grounds. First,
because of the so-called social standing of
Enrile and because of that social standing, there
is less probability of ___?? And 2 of the justices
who joined in the majority signed in the notation
for humanitarian reasons. Probably they did not
concur on the reasoning of the court. Because it
may lead to a different understanding or
perspective that bail can be granted even if the
evidence of guilt is strong because of the social
standing of the accused. The news reports have
it that the evidence of guilt is not strong.
Actually, that was not part of the decision
because that was never discussed. What was
discussed there was: what is the nature of bail?
We will discuss that again when we reach the
item on bail. But that has somehow given the
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public how the SC arrived its decision because
previous to this, and previous to the time during
the Corona impeachment… Before that, the
public has not been aware of how the SC has
actually reached its decisions. It has only been
guided on what the Constitution has provided
that decisions are reached upon prior
consultation and there has to be a certification to
the effect that there has been consultation to
that effect. However, that of any certification did
not render a decision, because there is a
presumption of regularity in the performance of
what is constitutionally required of them.
Under Section 14, decisions must clearly and
distinctly show the facts and the law upon which
is based. This is discussed in relation to your 7
cardinal primary rights in administrative cases or
administrative procedure on due process.
Because the number 7 there is that the decision
of administrative bodies must state the facts and
the law on which the decision is based so that
the parties may know of the conclusion of the
administrative agency.
So the question is: is Section 14 Art VIII
applicable to admin bodies? The answer is no,
because it refers to decisions of the court. But if
the question is phrased differently: is the
requirement that decisions must state the facts
and the law also required in admin cases? The
answer is yes, because that is part of admin
procedural due process.
The second paragraph there: or motion for
reconsideration of a decision of the court shall
be refused due course or denied without stating
the legal basis therefore…. What is required is
not to restate the facts and the law from which
the denial or the decision is based. Only the
legal reason for such denial, and it is only when
a motion for reconsideration is granted and a
decision is rendered, which is based on the old
case of Mangelen v. CA, a decision was
rendered by the court, a motion for
reconsideration was filed. The court granted the
MR. The question is: should the order granting
the MR of a decision earlier rendered, does it
need to state the facts and the law on which the
order is based? The SC said yes. When the
court issued the first decision subject of the
motion, it has stated what the facts are, and
what the applicable laws are for which the court
has reached its conclusion. When the court
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reconsiders that decision, therefore has to make
a new decision, it has to explain why it has taken
back all its findings before and must have to
therefore state what the facts are now and what
the laws are applying now and the MR was
granted. But if it was denied, there is no need for
restating them. And only the legal basis or the
decision.
I have personally filed a… in your e-filing in the
SC in your remedial law, you know that when
you file a petition with the original jurisdiction of
the SC, you are required to file also electronic
copies in pdf form, either in a CD or in a USB.
There is also a special requirement for
certification that the lawyer who filed a petition
certified under his oath as a lawyer, that the pdf
form is the same as the hard copy. Without the
pdf form in the USB or CD, your petition will be
denied because for failure to comply with the
Rules.
I have received a decision filed by the adverse
party, filed before the SC. It so happened that
the lawyer… he did not know that under Rule
65. What do you do next if you are the
respondent? If you receive a copy of the petition,
what does the respondent do? You have to wait.
The court will order you to comment within 10
days. Until the order is received, you just wait.
But what we did was we filed a comment with a
motion to dismiss saying that he did not know
the Rules. And the SC dismissed it on that
ground. So if the SC dismissed your petition, the
second paragraph only requires that the legal
basis for the dismissal be stated. So that was
exactly the dismissal that the SC stated: for
failure to comply with the SC circular number so
and so, dated so and so… the petition is hereby
dismissed. And so that’s the end of it. So no
need for stating the factual and legal reasons for
that dismissal.
MANDATORY PERIOD FOR DECIDING
CASES
Art VIII, Section 15.
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,
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and three months for all other lower courts.
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.
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.
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.
Art VII, Sec 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, Secs 12-14
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
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determined by the Supreme Court as soon as
practicable.
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.
The Constitution says there is 3 months for
lower courts, 12 months for lower collegiate
courts, 24 months for the SC. Those are both
mandatory and directory. It is directory with
respect to the validity of the decision or
resolution, whether you are outside of the
periods. Stated differently, if the decision or
resolution is issued or promulgated after the said
periods, these are still valid decisions, provided
that they comply with all the other requirements.
But with respect to the justices or judges
required to render decisions within said periods,
they are mandatory. And from all the cases you
have read regarding these periods, there has
been imposition of fines, some have been
suspended for failing to comply with these
Rules. That should make it mandatory. Sadly,
there has been no SC justice who has been
found liable for failure to comply with the 24-
month rule. What about the CA? SB? There has
been. But SC has not imposed upon any of its
members for failing to comply with the 24-month
rule for rendering decisions. That is the nature of
it being mandatory for them.
THE 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.
The regular members of the Council shall be
appointed by the President for a term of four
years with the consent of the Commission on
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Appointments. Of the Members first
appointed, the representative of the
Integrated Bar shall serve for four years, the
professor of law for three years, the retired
Justice for two years, and the representative
of the private sector for one year.
The Clerk of the Supreme Court shall be the
Secretary ex officio of the Council and shall
keep a record of its proceedings.
The regular Members of the Council shall
receive such emoluments as may be
determined by the Supreme Court. The
Supreme Court shall provide in its annual
budget the appropriations for the Council.
The Council shall have the principal function
of recommending appointees to the
judiciary. It may exercise such other
functions and duties as the Supreme Court
may assign to it.
Judicial and Bar Council, there’s nothing much
to remember here aside from what we have
discussed earlier with respect to the appointing
power. Appointments to the judiciary, we only
have the matter which probably has to be
remembered… the first JBC case with respect to
the opposition of the Judicial and Bar Council.
The JBC is composed of 7 members, they are
ex-officio Chief Justice, Secretary of Justice, and
a member of Congress. The Clerk of Court of
the SC shall be the secretary of the JBC. And
there shall be 4 other members who are
appointed for a fixed term of 4 years with the
confirmation of the COA, a representative of the
IBP, a retired member of the SC, and a
professional of law and the representative of the
private sector.
In this case of Chavez v. JBC, the term,
“Congress” there does not pertain to Congress
acting as a legislative body exercising legislative
powers. This is part of the intent of the
Constitution to create a JBC which is
representative of the 3 branches of government
as well as the private sector, with all 7 members
having equal weight in their vote of one each.
But the SC tried to go over the records and ruled
that when the term Congress was used in the
composition of the JBC, there is no liaison
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between the House of Senate and House of
Representatives, which is required when they
perform legislative functions. But here, it is just
to give them a vote as one body representing
the legislative branch of government. And no
amount of arrangement, like what they have
done before, 1 member from Senate and 1
member from the House of Representatives,
would have a vote, because the SC said that
there should only be 7 members with one vote
each. The reason why this has been the subject
is perhaps the JBC is primarily recommends
appointees to the judiciary. That includes the
Chief Justice of the SC. Of course that includes
the Office of the Ombudsman and other
functions that the SC may direct.
In an old case involving the elections of the IBP,
and it has always been the position of IBP
President is the most coveted, not because of
anything else, but because of his or her
participation in the JBC. And because of that,
there were a few elections in the past which
have been declared invalid because of violation
of the rules that there shall be no election. And it
is because of the power of the member of the
JBC to make such recommendations to the
judiciary.
So that will take care of your Judicial
Department. Constitutional commissions
(ConstiCom), just start with… there’s nothing
much in the composition… The only discussion
there with respect to qualifications probably
would be the concept of extended
disqualification.
No candidate who has lost in any election shall,
within 1 year after such election, be appointed to
any public office, GOCC or subsidiary.
That is applicable to other government positions,
but not to the commissions. Because in the
commissions, there is a special disqualification
that they must not have been candidates for any
elective position in the elections immediately
preceding their appointment. So since the
elections in the Philippines is every 3 years, if
you have run for example in 2013 or 2010, you
cannot be appointed even if you resign from
your elective office until the 2013 elections has
been conducted because it extends beyond the
1 year because you must not have been a
candidate in the immediately preceding
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elections. And in Section 6, we notice, if you
have won, you can actually resign. If you
remember a certain Attorney… There was a
lawyer who won in the elections as councilor in
2010. And immediately thereafter he resigned
and was appointed in the Office of the VP under
HUBCC.
So if you have won, you can be appointed. If you
have lost, you cannot. That’s under Section 6.
Section 6. No candidate who has lost in any
election, shall within one year after such
election, be appointed to any office in the
Government or any Government-owned or
controlled corporations or in any of their
subsidiaries.
You Must not have been a candidate, even if
you have won, you cannot take any position
even if you resign from the office until there is an
election
The other matter with respect to the ConstiCom
(before we go to the respective powers) is the
consti safeguards to ensure their independence.
We have made mention of that in relation to the
judiciary to safeguard the independence of the
judiciary. We have made mention of the non-
diminution of the salary, fiscal autonomy, the
automatic release of appropriation, the non-
diminution of appropriations from previous
years. With respect to the Consti Com, the
provisions to ensure their independence
1. There shall be no reappointment for those
sitting prior to the efficacy of the ‘87
Constitution, cannot be reappointed if the
term of office before and after would exceed
seven years.
BQ: What is the rotational plan? It has nothing to
do with the appointments to the commission. If
you have noticed, the appointment in the
commission is in staggered basis. One of the
commissioners would serve for 7 years. Those
staggered terms are full terms.
In the case of Funa vs Villar, which has
something to do with reappointments, the SC
made mention of this no reappointment rule in
relation to the rotational plan. It mentions that
the first appointees are on staggered terms and
they cannot be reappointed. It has been
discussed that it is deemed as a full term.
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2. The commissioner who has served for a
full term of seven years cannot in any case
be reappointed to another term of office. Can
the (ex.) Commissioner of the CSC be appointed
at the expiration of his term to another
commission? Example, Brillantes, the
Commissioner of COMELEC after the 7 year
term, can he be reappointed tot eh CSC?
In Funa vs Villar, the SC made mention of
upgrading appointment. The rule is against
reappointment. If it is upgrading appointment, it
is allowed. SC said these are the conditions so
that the upgrading appointment can be had:
i. The incumbent chairperson must have
resigned; died, removed by
impeachment or by reason of disability
could no longer perform his functions
thereby leaving an unexpired term. It is
not by reason of expiration of term. So
there is an unexpired term
ii. An incumbent Commissioner can be
appointed as Chair, he must serve only
for the unexpired term of the
chairperson.
iii. The tenure of the incumbent as
commissioner and the unexpired term of
the Chairperson must not exceed seven
years. The reason for that this will
maintain the so called staggered terms.
That no president except for those first
appointed will be allowed to appoint all
the members of the commission during
his term.
So an upgrading appointment is not prohibited
under the no reappointment rule. Example, if an
incumbent resigned and it gave rise to an
unexpired term. A person was appointed for the
unexpired term, can such person be
reappointed? NO, it would violate the no
reappointment rule.
3. The non-diminution of Salary
4. Regular and automatic release of
appropriations. As we have mention yesterday
the rule that the appropriations shall not be
diminished cannot be applied in Commissions,
because the commissions may need money in
some years but it will not need the same amount
of money in other years.
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Example, COMELEC. The COMELEC’s task is
to handle all elections which Is done every 3
years. During an election year, we expect the
appropriation to COMELEC be increased. In a
non-elec year, obviously they do not need the
same amount of money. The same is tru for all
other commissions.
5. Prohibition on temporary appointments in
the commission. All appointments to be made
by president must be permanent.
In the old case of Brillantes vs Yorac, that even
the designation of an OIC chairperson is not
given to the President. If the chairperson’s
position is vacant, it is the duty of the
commissioners to appoint who shall be the OIC
chair until the president makes a permanent
appointment; It is only by permanent
appointment which the commissioner can be
secure in his position, thereby maintaining
independence. Otherwise he will not be able to
discharge his functions owing to the fact that the
president may not make any permanent
appointments.
POWERS
All commissions have quasi-judicial and
administrative power.
A. CSC. Include all __ government. Only
GOCCs with an original charters are
under CSC. Those established under
the Corporation Code are covered by
ordinary labor code provisions such as
matter on the wages, salaries benefits
as well as the right to strike.
B. COMELEC. Enforce and administer all
laws and regulations relative to the
conduct of an election, plebiscite,
initiative, referendum and recall.
C. COA. While the Consti lists down the
entities over which the COA has the
power to exercise, audit examination
and settlement of accounts, the rule of
thumb is whenever there is public fund
or money it is subject to the audit
powers of COA. This is regardless who
the beneficiary is as long as there is
public fund or money received by that
person or entity. That is the reason why
EDITED BY: Raia TRANSCRIBED BY: Brunx, Rhoda, Ces, Aning, Yna, Kye, Bon, Sid, James, Rjay, Justin,
Bryan
a lot of laymen do not understand why
the government was able to investigate
PDAF scam when it should not have
been because the beneficiaries were
non-government. Whenever there is
public fund, whoever the beneficiary
may be including the so called NGOs
they can be examined and audited by
COA.
FUNA vs MANILA ECONOMICS AND
CULTURAL CONGRESS (MECCO)
MECCO was established because of the one
china policy after the war in china, there were
two states that resulted to the cessation of the
war i.e. China and Taiwan. Philippines and all
other states have had diplomatic relations with
both states until the UN resolution based on
China’s representation to follow the one china
policy. Therefore, all states who had diplomatic
relations with Taiwan had to cut it. That included
the Philippines. But because the Philippines
have “diplomatic ties” with Taiwan, it has
maintained what they call as ______ diplomacy.
They established in Manila MECCO office to
handle two things: one, the matter of OFWs in
Taiwan; second, matters with respect to Visa
Applications.
MECCO was established as an ordinary
corporation but it was tasked by the Philippine
government to collect funds relating to OFW and
Visa applications. FUNA (the same Funa who
filed the other cases, namatay na man si chavez
so siya nasad), he filed a petition for mandamus
requiring COA to conduct audit on the funds.
While the petition for mandamus could have
been declared as moot since COA ordered
requiring the conduct of audit, SC decided on
the substantial issues just to expound the power
of COA. SC said with respect to the money
received by MECCO involving those two
aspects, they are subject to COA audit; all other
funds held are not subject to such examination.
These (the two aspects) are public funds held in
trust by a private entity.
CSC. Barcelona vs Lim. This is an admin case
over the public officer, with respect to
jurisdiction, SC said the power of CSC to amend
its rules as it may deem fit. There is no prior
requirement of legislation before CSC can
amend its rules. It can amend as often as it
wants to because it may be required under the
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circumstances provided that it is consistent with
all other principles like due process. While it has
authority to amend its rules, it cannot however
violate any substantial rights. In this case, SC
said that CSC cannot direct to apply rules
retroactively. T should always be prospective.
COMELEC. We have discussed most of the
authority of Comelec are in relation to the
electoral tribunal. Once the jurisdiction of
tribunal sets in by reason of valid proclamation
and there is an oath then the jurisdiction lies with
electoral tribunal already.
The other matter with respect to jurisdiction
assuming it is still with COMELEC is what
decision of comelec can go to SC. Based on you
understanding with the comelec procedure,
division go to en banc and only en banc
decisions and final resolutions can be subject to
“review by SC”.
Can a division ruling be reviewed directly by SC.
Several decisions will tell you that SC can
review the following division decisions:
1. Division committed Grave abuse of
discretion.
2. It is not one of the cases which the court
en banc can resolve/ decide.
These cases can be reviewed by SC under
RULE 64 in relation to rule 65.
It is only CSC that follows a different rule
because this is with the CA under rule 43.
Sept. 17, 2015- Raia
AMENDMENTS TO THE CONSTITUTION
Either by:
1. 2/3 vote of Congress or
2. Constitutional Convention, thereby
there will be an election of the members
of the Constitutional Commission or
Congress may opt to let the public
decide, the electorate, by a majority
vote, and for the electorate to determine
or decide whether there should be a
Constitutional Convention. In the second
mode, there shall be 2 exercises,
therefore. First, for the people to decide
EDITED BY: Raia TRANSCRIBED BY: Brunx, Rhoda, Ces, Aning, Yna, Kye, Bon, Sid, James, Rjay, Justin,
Bryan
whether there is a constitutional
convention to be called; if so, then the
elections for the membership of the
Constitutional Commission.
3. Initiative and Referendum- which is
limited to amendments. It cannot be
used to revise.
As you all know, the distinctions basically with
respect to amendment and revision is the extent
and nature of the change with respect to the
alterations in the existing Constitution. If the
current system is altered, even if only a few
articles are affected, that will be a revision. Say,
a change from a 3-branch government to 2,
even if only Article VI on Legislative Department
and Article VII on Executive Department are
affected, that would be a revision. So if the
current setup or system of government in the
Constitution is maintained, despite the fact that
all articles and all sections are changed by
phraseology; that would still be considered as an
amendment.
Ratification, as in the present constitution as
compared to the past, is now by plebiscite even
if in the past it’s by referendum.
So in a period of 60-90 days from the approval
of changes by a Constitutional Assembly or by
the Constitutional convention, there shall be a
plebiscite to be called. In case of legislative
referendum, the 60-90 days is to be reckoned
from the certification of the Comelec of the
sufficiency of the signatures for the percentage
or the percentages required under the
Constitution.
The final item with respect to amendments and
revisions is the concept of judicial review,
whether the actions or the decisions or
conclusions which, by the constituent assembly
or by the constitutional convention or by initiative
or referendum can be reviewed by the SC.
The position of the Constituent assembly or
constitutional convention, at least for the
previous Constitution which can also be applied
if you put it under the initiative and referendum,
is the concept of equality. The constituent
assembly is not your Congress in the exercise of
its legislative powers. Rather, it is in the exercise
of its consequent powers granted to it by the
Constitution. It derives authority not because it is
Congress. It derives its power or authority
because the Constitution grants it power to
propose amendments or revisions to the
Constitution. The same is true with
Constitutional Convention. They are considered
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co-equal and therefore not subject to judicial

review. However, because of the procedural
requirements especially on the matter of votes
that must have to be complied for there to be a
valid amendment or revision, that is the extent of
the matter which the SC can look into. The
substantial changes brought about by any
amendments or revision can never be inquired
into by the courts because that is beyond the
power to review. The question in Constitutional
cases is whether or not the provision in the
Constitution limiting such power is complied
with. So if it is other than the procedural aspect
of the amendment or revision, they can never be
subject of judicial review. So that will take care
of your Constitutional Law 1.

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Bryan