Political Law Review (Pre-Midterm) 1 of 2

University of San Carlos
Political Law Transcription

Constitutional Law
Judge E. Singco
JUDICIAL REVIEW
WE always start with Judicial Review because we are suppose to construe and interpret the
provisions of the Constitution, as was stated in our study of political law as well as constitutional
law. Even in determining whether or not the SC has jurisdiction to take cognizance over a petition
involving a question of constitutionality, the SC would always go into whether or not the requisites
for the valid exercise of judicial review are present. Otherwise the SC would not touch on any issue
of constitutionality. It is then very important for you to understand judicial review before we go to
the specific provisions of political law.
As we can recall, judicial review is one of the powers of the court, the judiciary in general.
Particularly because ultimately it is the SC that renders decision that would establish precedent, we
have the SC exercising the power. Take note because at one time it was asked in the bar exam - cite
provisions in the constitution that vested the power of judicial review in the judiciary; or there was a
question on what is the expanded jurisdiction of the SC; or there was a question on what is the
constitutional basis of the lower court declaring the law unconstitutional; or there was a question
relating to whether or not the RTC can declare a law unconstitutional. Isnt it that all these questions
can be answered by the concept of judicial review? So you have to understand the concept of
judicial review.
Judicial Power
Take note that judicial power as is defined under section 1, Article 8 is no longer limited to settling
disputes, where you apply law and jurisprudence in a case involving a conflict of legal rights, or
involving a conflict of obligations. Why? Because that judicial power has been increased, it
expanded as to its concept. That judicial power is not only limited to settling disputes, but as well as
determining whether or not there has been a grave abuse of discretion amounting to lack or in
excess of jurisdiction. This involves an exercise of judicial review by the court. If this power is
vested not only in the SC, but as well as such other courts that may be established by law, then it is
understood that judicial review is exercise also by the lower courts.
Can you cite as legal basis for the exercise of judicial review? You have that provision in section 4 of
the same Article, where it provides that in the matter of reviewing whether or not a law, a
Presidential Decree, a proclamation, an instruction, ordinance, an international agreement, a treaty,
etc. is in consonance with the constitution, who has the power to review? It is the SC. That is part of
their power, which is an exercise of judicial review, wherein you determine whether or not a law as
valid having the constitution as your basis as your point of reference. If it is in consonance with the
constitution, then it is valid. If it is contrary to the constitution, then it is null and void. And in which
case, it is an exercise of judicial review. That is so far as the SC. In other words, there are two
provisions then of the SC sec. 1, Article 8, and Sec. 4 of the same Article, in so far as the exercise
of judicial review by the SC.
How about the lower courts? Do they exercise judicial review; can they declare a law
unconstitutional? The answer is yes, because the definition of judicial power has already been
expanded to include the power of judicial review, which power is vested not only in the SC but as
well as in all other courts that may be established by statutes we call them as statutory courts.
Then you also have section 4. You recall, what are the decisions that will be reviewed by the SC?
Those are decisions presumably of the lower courts because what will be reviewed if there is no
decision rendered by the lower courts. It implies therefore that lower courts can declare a law
unconstitutional if it is contrary to the constitution; or can review a law or an act of the government,
however subject to the review by the SC. Therefore, lower courts do exercise the power of judicial
review.
What is the difference between the exercise of the power by the SC and by the lower courts? The
decisions rendered by the SC will serve as precedents, they would serve as guidelines to educate
the bench and bar so that in the event the same issue will be raised in the future, then the lawyers
and the judges, including the public will be guided accordingly. But what about the lower courts
declaring a law unconstitutional, what would be its effect? It is only binding in so far as the parties,
dont stop there, with respect only to that particular case. Because a decision of a lower court
cannot be used as precedent by a co-equal or much lower court. It is only effective in so far as
Political Law First Installment
determining the right and obligations of the parties with respect only to that particular case where
the decision is rendered. That is why the SC said that while lower courts can exercise judicial
review, they have to be exercised with prudence and utmost caution, because theirs is not binding
against the whole world, it only binds the parties with respect to the case.
Requisites of Judicial Review
It has been said that the court, the SC in particular, is the most passive among the three branches
of the government. If its authority is not invoked, the court cannot inquire into the legality of the
laws that may be subject of the complaint, or cannot inquire into the acts of the two other
branches, because of the principle of separation of powers and because they are co-equal branches
in the government. Because of this principle, this judicial review power of the court can only be
exercised if the requisites are present. Then you go again to the basics the requisites of judicial
review. Remember there must be an actual case or controversy, it must be raised by the proper
party, at the earliest opportunity of time, and finally the issue of constitutionality must the ultimate
issue to the extent that the main case cannot be decided on the merit until after the accidental
issue of constitutionality will be settled.
You have to master the requisites on actual case or controversy, and on the issue of proper party.
Whenever a case is lodged for the SC, questioning the validity of the acts of the president for
example, before the SC gives due course to that petition, they still have to look into whether or not
there is indeed a controversy. Thereafter, they will check if the person filing the petition is a proper
party. Because on the matter of the raising the issue at the earliest opportunity of time, usually it is
always raised even before the issue the issue has ripen into a matter of judicial determination. That
is not much of an issue. Or whether or not it is the lis mota. More or less it is always the very lis
mota. Those two are not that of issue in bar examination.
Actual case or controversy.
When is there an actual case or controversy? There is actual case or controversy when the issue is
ripe for judicial adjudication. When is it ripe for judicial adjudication? When it involves legal
questions like issues like whether or no the acts complained of are valid. When you say valid, there
has to be a law as basis to say the least. Or whether or no the acts complained of are constitutional.
So there is always a proviso of the constitution as a point of reference. In other words, the nature of
the issue raised is justiciable ad not political. So if you ask questions relating to the rationale or
reason behind the act, or the wisdom of the decision of the President or of the Congress, or the
wisdom of the law passed by the Congress, these are issues that are political in nature, meaning
they involve political discretion of the two other branches in the government. And under the
separation of powers, being a full discretionary power of a particular branch, it cannot be a subject
of a review by the court because it might amount to intruding into the discretion of a co-equal
branch of government. That is why we said only justiciable questions may be looked into by the
court, or more particularly by the SC, and not those questions that are political in nature. The only
exception to that - even assuming that it is a full discretionary power of a branch and therefore as a
general rule cannot be looked into or check by the courts in the exercise of judicial review - take
note that because of the expanded jurisdiction granted to the court, that may be still looked into if
only to determine whether there has been a grave abuse of discretion amounting to lack or in
excess of jurisdiction. Case in point, Marcos vs. Manglapus. For example, in the matter of that case
on whether or not the President can determine who of these people should be allowed entry into
the country, as part of the residual power of the President being the Chief Executive, and therefore
being a discretionary power of the president, exercised by an alter-ego such as the secretary of the
foreign affairs should the SC look into that discretion when it is a political question? The SC said in
the case of Marcos vs. Manglapus, even if it is a discretionary power that is not the issue. The court
would not inquire whether or not he had that power. It is only whether the power is exercised within
the bounds of the constitution because if it is exercised with abuse of discretion, that discretion is
abused, then that may be still looked into by the court. That is the only instance that even political
question may be looked into. Otherwise, only justiciable question are within the jurisdiction of the
courts to look into in the exercise of judicial review.
Ripe for judicial adjudication.
Another point that you should take note is that it must be ripe for judicial adjudication. Meaning, if
there is no controversy yet, you are just anticipating that there might be a violation of your right
then you cannot file a case because there has been no violation of any right yet which is ripe for
judicial adjudication. In other words where the issue is still premature because the issue or your
question has not ripen yet into a controversy for judicial determination, then the court must refrain
from taking cognizance over such petition or cases because that would amount to intruding into the
prerogative of the two other branches of the government.
Take note on declaratory relief. Theres shouldnt be any violation of a right in a declaratory relief
petition. Otherwise the court cannot take cognizance over the petition. When you ask, for example,
for the court to intervene and determine the rights and obligations of the parties under a particular
contract or law that is in question, can the court look into the matter? There is no violation of any
right here because this is a requisite in this petition - when there is already a violation of right, then
the court can no longer into the constitutionality of the law in question under which the rights and
obligations of the parties are supposed to be construed and determined. This is an exception. We
said that the issue should not be premature; otherwise the court cannot take cognizance over the
petition. But you have declaratory relief. Like for instance you want to know what are the rights and
obligations of the parties under the law, but you question the constitutionality of that law because if
the law will be applied, the rights of either party will be violated. So you are now asking the court
that before that law will be implemented in determining the rights and obligations of the parties,
you first tell us if this is constitutional. This is not asking for an opinion from the court in
determining whether the law is constitutional or not. You are simply trying to ascertain what are the
rights of the parties under that law which is being questioned as to its constitutionality, or under
that contract which validity is being questioned. Does the court has jurisdiction; is there an actual
case or controversy? The SC said in a Declaratory Relief where there are no rights violated yet,
there is an actual case or controversy. Because after all, whatever decision that will be rendered by
the court will determine the rights and obligations of the parties under that law.
Then the issue on if it must not be premature, it must not also be stale. When there is no more
controversy, it ceases because of a supervening event that had happened after the filing of the
petition. In other words, the controversy must not only be at the time of the filing but it must be
continuous until the issue is resolved. Because it is possible that at the time of the filing, there was
a controversy but it was over-ran by the subsequent events making the issue moot and academic, if
not bahaw na - there is no more controversy.
Like what happen in one the cases where there was a question on whether or not the declaration of
the state of rebellion by the President is constitutional. While that case is pending in the SC, there
was a lifting of the declaration of the state of rebellion. And so the Solicitor General moved for the
dismissal of the petition on the grounds that there is no more issue to be resolved because there is
no more state of rebellion. And SC dismissed the petition. That was the Lacson case.
And there was this case of Randy David vs. The Executive Secretary or vs. President Arroyo before
she was dropped on that case. Do you recall when the President declared a state of national
emergency, and what happened thereafter, they questioned the validity or the constitutionality of
the President declaring the state of emergency. While the case was pending, it was lifted. And was it
dismissed? The SC did not dismiss it. What is the difference? Because apparently while it was lifted,
there remains still the controversy because there were question on the validity on their arrests, the
arrest was made in pursuant to a declaration of the state of national emergency. So the controversy
continued, it never became moot and academic. Unlike in the rebellion case, there were no cases
relating to the declaration of a state of rebellion. There was no more issue because it was already
lifted.
In that case of David et al, the SC said that the mootness of the issue is not a mathematical
formula. To dismiss the case and for the court to refrain from reviewing the act which is clearly a
violation of the constitution. Case in point which is a classical case Salonga vs. Hermoso.
Remember the Salonga case, where Salonga asked for travel clearance to go abroad for medical
treatment, however, he was not given any clearance because according to the government, he has
a pending case of rebellion. So he went up all the way to the SC, questioning the actuation and as
to its constitutionality of government in barring him from going abroad. While the case was
pending, the rebellion case against him was withdrawn by the fiscal office, or in other words there
was no more case, which was the reason for the not giving him the clearance to go abroad. So the
Solicitor General moved for the dismissal of the petition on the ground that there is no more issue,
because he was already given clearance because the case was already been dismissed. What did
the SC say? No. Why? Because from the facts of the case, it was clearly established that there was
a patent violation of the constitution. And that it is possible that this will be repeated again in the
future, and yet it would evade any review from the courts. Take note of the requisites then, that
even if the issue has become moot and academic, the SC is not barred or precluded from looking
into the matter. The mootness therefore of the issue is not just a formula to move for the dismissal
of the case. You have to look into the requisites like whether there is patent violation of the
constitution, and that there is a possibility that this will be repeated again in the future and still the
court cannot review the matter. Take note that judicial review is not just reviewing the validity of
the law but as well as to comply with the symbolic function to educate the bench and the bar and
to provide guidelines, precedent, and principles so that in the future similar issues will be raised
then they will be guided accordingly, including the public not just the lawyers as well as the judges
but also the public.
I think there are also some subsequent cases. Remember the case involving the MOA, where they
ask for the dismissal of the petition the memorandum of agreement that the government had
entered into with the MILF group. And the Solicitor General Devenadera was saying that the petition
should be dismissed because the President had made an assurance that she would not sign that
memorandum of agreement and therefore would not give any effect to that MOA which
constitutionality was being questioned or assailed. Notwithstanding, the SC proceeded in
determining the constitutionality of the validity of the MOA for the same reasons as it was
enunciated in the case of David et al.
I dont what happened to that declaration of martial law in Maguindanao that was also questioned
and it was lifted later. I do not know if the SC has decided it on the merit because you have to
understand that there are now cases filed against the Ampatuan. And the validity of their arrest is
based on evidence that were procured during the time martial law was declared. BROWN OUT
Oh my goodness
I wondered because I was looking for the Ampatuan case. It is still pending thats why we cannot
find that in the website. They are questioning the constitutionality of the declaration of martial law
in Maguindanao. Even if it was lifted already, will the issue become moot and academic? The
controversy did not stop from the declaration of the martial law. There were consequences of the
declaration of the martial law. Do you recall they made some warrantless searches and seizure?
And later these evidences that were procured were used as basis for the filing of cases against the
Ampatuans. If they go into excluding the evidence that was obtained then they have to go into the
constitutionality of martial law because that was the basis for the warrantless arrest and seizure.
The issue itself, the main case may have become moot and academic but it continues because of
the consequences of the declaration of the act itself, or because of the enactment of the law itself.
My point, guys, is that if you are given a case like that, you make sure if you can apply either the
case of Lacson or the case of David et al. But the safer there is to say that if the issue is of
transcendental importance or of paramount public interest, even if the issue had become moot and
academic, the SC is never precluded from looking into the matter and establish precedent by
decisions that they would render. Going back to the requisites of the exceptions to the mootnes
which the court may not look into with the constitutionality of the act complained of - when there is
a clear violation of the constitution, and the issue is of transcendental importance or of paramount
public interest and that it is capable of repetition and yet it evades a review from the court.
Raised by the proper party.
Another point to take note is on the next requisite of proper party. Who is a proper party in
political cases like this involving issue of constitutionality? Usually, a proper part is one who stands
to benefit if the case is decided in his favor. If it involves private rights, he must have a cause of
action and he stands to benefit or he suffers, depending on the decision that would be rendered by
the court either against him or in his favor. Thats why sometimes we consider that as one having a
real interest in the outcome of the case that is a proper party. Is that applicable in cases of
constitutionality? Should one have that real interest as defined by civil law involving private rights
so that if he cannot establish that, then the case should be dismissed because of lack of cause of
action, or because simply put, he is not a proper party. Take note that in cases involving judicial
review, what is involved is not a private right, it is only incidental. Because whatever will be the
decision, right now you might be personally affected, but the decision will not only apply to your
personal right but as well as the rights of everybody - it involves usually a public right.
And this was emphasized in the case of La Bugal Blaan - remember versus Ramos, where there was
a question on the constitutionality of government entering into a service contract agreement with a
foreign corporation to engage in the operation of mining. Di ba under the constitution, control over
the exploration and exploitation of natural resources is with the state? And if any citizen gets
involve in this kind of business, there are only three instances, and the state has to enter into an
agreement either with a citizen of the Philippines, or with a qualified Filipino corporation. What are
those agreements as provided for by the constitution? What are these? It has to be a profit-sharing,
co production, do you remember In other words, it is clear under the constitution that the state
may only enter only into such kind of agreements involving the exploration of natural resources
with a Filipino citizen, or a qualified Filipino corporation, and not with a foreign corporation. In that
La Bugal Blaan, the group that questioned the validity of the agreement that the government had
entered into with an Australian corporation - because practically, this foreign corporation is allowed
to explore the natural resources through mining. And so before the court looked into the
constitutionality of the issue that was raised, they had to determine whether the La Bugal Blaan is
a proper party to raise the issue of constitutionality. Firstly, they are not involved in mining
competing with this foreign corporation; they do not owned the lands subject of the exploration of
the natural resources. Should the case be dismissed because after all they will not be directly
injured? But take note this involved a public right. If in the vent decision will be rendered either for
or against the petition, it will not only affect the petition but it affects the whole country because it
involves the constitution and its application, and the exploration of the natural resources. So the SC
has emphasized that in cases like this, this involves a public right and therefore you do not apply
the definition of a proper party in a civil law cases where only private rights are involved. You need
not have a real interest in the outcome of the case as long as you have the legal standing then you
are considered as a proper party. In fact, some petitions may not be directly involved... it is only a
public in general of which he is a part. In other words, in this jurisdiction, who is a person who has a
legal standing to question the constitutionality of a law? It is one who is directly injured by the act
or law complained, or in the imminent danger of sustaining injury.
Do you know about facial challenge on the constitutionality of an act or a law? Where even if a
party is not may not be directly personally involved, the court may still look into the matter because
it will affect the public in so far as the exercise of the rights guaranteed by the constitution. But
take note on the facial challenge of constitutionality. This usually involves freedom of expression. It
cannot apply to all other cases. Even if not only him that is personally affected, it might affect also
the other persons who may be situated in the same circumstances in the future, the court may still
look into the matter. But it is limited only to cases, involving the rights of the freedom of expression
like your freedom of speech, right of assembly and petition to government for redress or
grievance, the court may still look into the matter.
Going back to the principle of direct injury. In this jurisdiction, as a general rule, what we apply is
direct injury principle. The injury that is being referred to may either be actual or potential one
who has sustained injury or in the imminent danger of sustaining injury is one who is considered a
proper party.
You have a case of De la Hoya vs. PCGG, where they are going to sell the jewelries of Imelda Marcos
in a public auction. Can you question as a citizen of the Philippines whose taxes may have been
used in the purchased of these jewelries of Marcos? Can you ask for an injunction to stop the
auction? Or you are a lover of jewelries, you dont want them sold because you cannot see them
anymore it would be better they be put in the museum so that you will have a chance to look at
them. Can you ask for a writ of injunction to enjoin the sale? In that De la Hoya, it does not involve
jewelries of the Marcoses, it involved some articles of art, paintings, etc which a group of artist
wanted to stop the public auction. Where they considered proper parties in that case? They were
not because it the even they would be sold, they will be not prejudiced because they do not own
them. If there is any one who should question the validity of the public auction, it should be the
Marcoses who claimed to be the owners of the works of art.
As a general rule therefore, in this jurisdiction, what we apply is direct injury principle. The injury
could be actual, as Ive said, or it is potential. Do you recall that case of Oposa vs. The Secretary of
DENR (Factoran)? Do you recall that the one who filed the petition to question the policy of DENR in
granting concessions for logging were minor children of Atty. Oposa, not Atty. Oposa himself but he
represented his children. They are minor children they are not engaged in logging, they do not
own these forests but why were they considered as proper party in this issue of constitutionality?
They are not injured yet because after all there are so many trees. But if this will not be stopped,
and they will be no planting of trees, what will happen? Remember that these children are the
inheritors of the patrimony of this country. What natural resources, or timberland, or forest will they
inherit if they all will be cut down, if there is no regulation to the grant of concessions of logging? So
it is potential that they would certainly be injured if that will not be reviewed by the court. Take note
of what is the basis of this. It is based on the inter-generational responsibility to preserve and
maintain a healthful and balanced ecology. That is a right not part of the bill of rights, but according
to the SC it does not make it less important than those rights enumerated in the bill of rights,
because they are so stated, not in Article 3, but in Article 2 as part of the Declaration of Principles
and State Polices.
Take note what is important here in determining whether he can be a proper party if he is an
ordinary citizen, a taxpayer, a voter, a member of Congress, or just a member of a concerned
citizen organization.
As a citizen, we follow the direct injury principle. Because of the presumption of constitutionality
and validity of laws, the court cannot on their own declare them as contrary to the constitution and
therefore null and void. So that should there be anyone who should question, he must be one who
has sustained injury or is in the imminent danger of sustaining injury. Except in the case of facial
challenge of constitutionality involving the freedom of expression.
How about a taxpayer? Can a tax payer, if he is not directly injure but he is just a tax payer,
question the validity of any law that may be passed by Congress or any act of the President? Take
note, as it was asked in the bar exam, the requisites to have a legal standing as a tax payer to
question the constitutionality of the act of government, or of the law.
It must involve, first and foremost, a disbursement of public funds - but not just any disbursement.
Otherwise, a lot of cases will swamp the court every time the government expends money. It will be
brought to the court and question as to its constitutionality. It is not just involving disbursement of
public funds. What else? It must be contrary to law. Meaning, its anomalous that would amount to
misappropriation or misapplication of public funds to the prejudice of a taxpayer.
Second. When it involves taxing laws. Tax impositions that are exorbitant that would amount to
depriving the tax payer of his property without due process of law.
That is so far as the Tax Payer is concerned. Two instances when it involves disbursement of public
unds, etc and when it involves taxing laws.
How about a voter; when is he a proper party? A voter is a proper party when it involves his right to
vote and questions on the constitutionality or validity of election laws.
Aside from that guys, you should know how about a member of Congress. When is he a proper
party? Do you remember that case of Francisco et al vs. The House of Representatives? You have
that case of Drilon one E.O. 464. You have Pimentel relating to the Statute of Rome. These ar
emembers of Congress. When are they considered as proper parties? when the questions or
issues raised or the law that they are assailing as to its constitutionality involves the prerogatives
as members of Congress. If there is an issues that impairs, if there is a law is complained of, it
impairs or prejudices the prerogatives as members of Congress then they are considered as proper
parties. Remember that case involving Drilon questioning the on the constitutionality of that
executive privilege that was extended to the cabinet members E.O. 464. Why does this impair the
prerogatives of the members of Congress? Take note that they pass laws by.. where do they get the
information in making laws? Through legislative inquiry. It is the legislative inquiry that was affected
by the extension of the executive privilege because it virtually deprives members of Congress of
the source of information for purposes of legislation. What happens if they want to know some
information from a cabinet member? Because of the executive privilege, the cabinet member
would not appear before legislative inquiry and therefore depriving not only the people in general
on the right on information on matters of public concern, it also affects the source of information for
members of Congress in the enactment of a law. That is basically the reason why it was questioned
by Drilon, and Drilon was considered a proper party. In the case of Pimentel vs. Executive
Secretary. This was on the issue of asking for the Statute of Rome to be submitted to the Senate for
review for purposes of concurrence. Do you recall? The establishment of International Criminal
Court of Justice to which we were a signatory then at the time of President Estrada. When Arroyo
became the President, she withheld the submission of that copy, that Statute of Rome, that treaty,
to the Senate for purposes of review so that they can concur or not concur such treaty because of
the threat made by USA that should we pursue our being a signatory to that treaty, we might loss
military or US aid from America. So it was submitted. Pimentel then question the propriety of the
act of the President not submitting it to the Senate. Take note that it was not only Pimentel who
questioned the validity of the act of the President. It was also questioned by Akbayan; it was also
questioned by a member of the House of Representatives, Eta Rosales. But among those who was
considered as a proper party - it was Pimentel. Why? Because after all, under the Constitution, a
treaty can only be effective upon concurrence by 2/3 of the Senate. Not Congress, but only the
Senate. Usually, it is being submitted to the Senate for review, so that they can make
recommendations to the President whether or not to ratify the treaty that may have been
negotiated with by the President or her representative. While the SC said that Pimentel was a
proper party being a member of the Senate, Eta Rosales was not considered a proper party because
after all she is a member of the House of The Representatives. Her prerogatives will not be impaired
by not submitting a copy of the treaty to the House of Reps. Why not? Because they do not concur
treaties that may have been negotiated by the President. Eventually, the SC declared that it is not
for the Senate to compel the President because after all, it is discretionary on the part o the
President to ratify or not to ratify the treaty being the Chief Executive.
In so far as concerned citizens group or as an organization, when is it a proper party? Do you

remember the IBP questioning the constitutionality of the deployment of the military to shopping
malls IBP vs. Zamora. And it was dismissed by the SC. One of the grounds was that IBP is not a
proper party. What is the function of the IBP to make sure that the rule of law is observed, right?
But that is not just an interest of IBP. That is practically an interest of everybody. So they basically
just shared that interest which is common to the general public. In other words therefore, their
interest in the outcome of the case is not substantial neither personal. That is why the SC declared
that IBP is not a proper party as an organization. But then again, you take note of the case of
Kilosbayan vs. The Executive Secretary, with respect to the appointment of Justice Ong to the SC. Di
ba Justice Ong of the Sandiganbayan was supposed to be promoted as justice of the SC, but the
Kilosbayan asked for an injunction, a restraining order, from the SC to enjoin the executive
secretary to issue the appointment papers which could be the basis for the taking of oath of Justice
Ong. There was a question on the propriety of the Kilosbayan filing the case in the SC questioning
the qualifications of Justice Ong. They were saying, what if, for example, Justice Ong will be
disqualified? Do you mean to say that Kilosbayan will be the one to replace Justice Ong, and be
appointed as Justice of the SC and so you will have a Justice Kilosbayan? In other words, they dont
have personal interest. The injury could not even be substantial. Anyhow, the SC said, here the
issue raised is of constitutional significance. It involves qualifications of a justice that is required by,
no less than, the constitution. What is the qualification required by the constitution? That to be a
justice of the SC, you have to be a natural born citizen. And the issue that was raised by the
Kilosbayan here is this Justice Ong is not a natural born citizen. On the possibility that you will
appoint someone who is not qualified as regards to citizenship, definitely the interest is not just
general. The SC said that the issue that is being raised is of constitutional significance thats
another ground for raising the issue of constitutionality and the organization being a proper party.
Because before that, we have Kilosbayan vs. Morato. That case was dismissed. Remember
questioning on the franchise that was granted involving the operation of Jai Alai because it was
immoral, etc. Do you recall that the case was dismissed because the interest of the Kilosbayan in
this case was shared among the public in general. It is not substantial neither personal. But in this
case of Justice Ong, it is an exception. The SC entertained notwithstanding that Justice Ong passed
the JBC screening. Thats why the SC said that in the role of JBC in the appointment of judges and
justices, that they can only do some initial screening, but it will not preclude the SC to look into the
qualifications of a judge or a justice if there is allegation that it is contrary to the constitution.
There is another thing. Is a government a proper party to question the validity of its own laws? Ikaw
na ang implementor, ikaw pa jud ang mo question. Would it not be inconsistent on the part of the
government? You pass a law and then you question the validity or the constitutionality of that law.
Take note, classic case, you have People vs. Vera. You also have the case of the carabao IAC vs.
Ynot, where the SC said that with more reason that the government should make sure that only
valid laws should be enforced. They are not precluded, in other words to raise the issue of
constitutionality of laws that may be implemented or enforced by the government.
Another point that you should take note guys is that this matter of the issue of proper party may be
set side by the SC in its discretion as a mere procedural technicality where the issue involved is of
transcendental importance or of paramount public interest. Where there is a clear violation of the
constitution and is capable of repetition however evades review. Then in which case, even if you are
not directly injured or may not be in the imminent danger of sustaining injury, that issue of proper
party may be just set aside by the SC if the issue raised is of transcendental importance or of
paramount public interest. And in many cases, the SC entertained petition on constitutionality of
acts of the President, or laws passed by Congress, notwithstanding that he has no personal interest
in the outcome of the case, simply because the issue raised is of transcendental importance. That is
always the justification of the SC. But that is a discretion of the SC, not by the lower courts. In the
lower courts, he has to be a proper party, and what you apply is the direct injury principle.
Raised in the earliest opportunity of time.
Another requisite is on the issue that it must be raised in the earliest opportunity of time. If you are
the complainant, when is it the earliest opportunity of time to question the validity of law or the act
of government in general? Then it would be when you file your complaint, which is the pleading. You
have to raise that in your complaint. You have to allege, in other words, that matter in your
complaint. Otherwise, should you fail to raise that in your complaint, you may not be allowed later
to present evidence to prove that the act complained of is unconstitutional because you can only
prove facts that are alleged in your complaint. What is not alleged, you may not be allowed to
present evidence. If for example, you only raised that for the first time at the time you file your
motion for reconsideration after the case has been decided against you, and so you raised that for
the first time in your motion for reconsideration. Would that be the earliest opportunity of time?
Certainly not. And most especially, you didnt raise that in your complaint, you didnt raise that in
your motion, can you raise that for the first time on appeal? The answer is no, as a general rule,
because of the requirement that it has to be raise at the earliest opportunity of time. If you didnt
raise that in your complaint, then you cannot raise that for the first time in a motion for
reconsideration, much less, in an appeal.
But take note that in a case where you were charged administratively in the office of the
Ombudsman, you never questioned the constitutionality of R.A. 6770 (Ombudsman Act) as regards
to the jurisdiction of the Ombudsman. Remember, it confers jurisdiction to the Ombudsman office to
investigate cases involving public officers. Now you are being investigated by the Office of the
Ombudsman, but you never questioned the constitutionality of the law authorizing the Ombudsman
to investigate you. Until finally, you get convicted, sentenced to dismissal from the service. Can you
raise for the first time on appeal the constitutionality of R.A. 6770 in the CA where you are
appealing the judgment of conviction? Because if the Ombudsman Act is unconstitutional, then the
proceedings conducted by the Ombudsman is null and void. Is that the earliest opportunity of time;
can the CA entertain that issue of constitutionality? The answer is yes. Why? Because the
Ombudsman cannot rule on the constitutionality of R.A. 6770. The proper forum is the court.
Remember that they do exercise a quasi-judicial function, but it is not a court, and therefore, cannot
exercise judicial review and rule on the constitutionality of the law in question. So therefore, the
earliest opportunity is when the case is filed in court. In this case, when the appeal is filed.
We said, if it is not raised at the earliest opportunity of time, can you raise that for the first time on
appeal? As a general rule, you cant because of the principle on raising the issue at the earliest
opportunity of time. Exceptions. These are the things that you have to take note. In criminal cases?
Yes, anytime, even for the first time on appeal because in this jurisdiction, where there is no law
punishing the act or the omission, no crime is committed. So if the law is declared as
unconstitutional, then it would be as if no crime is committed. Because no law punishing the act, no
crime. No crime, no liability.
In civil cases. In civil cases, it may be raised if the main case cannot be resolved without first
settling the issue on constitutionality. In other words, you are asking for an injunction but the
injunction hinges on the constitutionality of the law that you are raising. It depends on that law
whether or not it is constitutional. If the law is constitutional, then you are not entitled to an
injunction in so far as applying the law. But if the law is unconstitutional, then you are entitled to an
injunction. So ultimately therefore, your relief which is the main case is dependent on the issue of
whether or not the law you are questioning is constitutional. In other words, only when the case
cannot be resolved without first resolving the issue of constitutionality. Where the issue of
constitutionality is the lis mota of the case.
Finally, when the issue is jurisdiction? Anytime. It can be raised for the first time on appeal. Because
if the law for example, that confers the authority to hear the case, or that grants that authority, or
that grants that right is unconstitutional, then it is null and void. Then the subsequent proceedings
applying the law are likewise null and void. That is the reason why anytime, even for the first time
on appeal, you can raise the issue of jurisdiction where there is a question of its constitutionality.
Must be the lis mota of the case.
On the issue of that the matter must be the lis mota of the case. Because of the principle
separation of powers that the three branches are co-equal, as much as possible the courts should
not intrude into the discretion of Congress enacting the law, or intruding into the discretion of the
President implementing the law that is presumed to be valid. In other words, if there are other
grounds by which the case can be disposed of or resolved, by all means the court must avail of
these grounds without touching on the issue of constitutionality. Like, the meresi principle such as
the estoppel principle. After enjoying the benefits, now you are questioning as to its
constitutionality. You are now barred from raising the issue of constitutionality, under the principle
of estoppel. Or because the court does not have jurisdiction over the matter; or because the person
is not the proper party; or it is still premature; or the issue has already become moot and academic.
Because of the presumption of the validity of laws, the courts, as much as possible, should not
intrude into the discretion of the two other branches of the government.
JUNE 5, 2010
Just briefly, we explained, that before the courts, more particularly the SC takes cognizance over a
petition for any question of constitutionality, the four requisites must be complied with. Although
there are some exceptions where some of the requisites may not be established and yet the SC
may still take cognizance over the case especially when the issues raised are of transcendental
importance or of paramount public interest, or recently in the case of Kilosbayan, when it has its
constitutional significance.
Can the lower court like RTC declare it as unconstitutional?
Legal effects of the declaration of unconstitutionality.
Now, in the event the law is found to be contrary to the Constitution, the question is as it was asked
in the Bar exam, can the lower court like RTC declare it as unconstitutional? There is no question as
to the SC declaring it as unconstitutional. But as far as the lower courts, we explain, because
judicial power definition has been expanded, to include judicial review, even lower courts may
review the constitutionality of an act complained of on the basis of a constitutional provision. And
that of course includes a declaration of unconstitutionality in the event it is found to be contrary to
the constitution.
But take note of its legal effect. The moment a law is declared unconstitutional by the lower court,
what would be its legal consequence? It depends. If it is appealed to the Sc, then its declaration of
nullity is not yet final. It is still subject to review and modification by the SC. Because ultimately, it
is where the Sc to decide on the matter. After all, decision s of the lower court are subject to review
by the SC, especially when it involves constitutionality. But what if the judgment is not appealed by
either party? What will happen to the judgment? Then it becomes final. So there is no way that the
Sc can review it. What would be then the legal consequence of the finality of a decision of a lower
court declaring a law or an act complained of as being contrary to the constitution? Does it make
the law unconstitutional against the whole world? Its only, has its legal effects with respect to the
parties in relation to the case that is being decided by the lower court.
In other words, even if it involves the same parties, however, different case this time because of a
different date, the same act is complained of. The decision of the lower court in that particular case
cannot apply in subsequent cases even if they involve the same issues, the same parties because
the finality of the decision of a lower court is binding only in so far as the parties with respect to the
case. Like for example, there are questions relating to, what if the ordinance is declared
unconstitutional by the RTC, involving the parties and it has not been appealed. Remember the case
involving the ordinance relating to the towing of illegally parked vehicles. Do you know that one
time that was questioned as to its constitutionality? And in fact the RTC, one of the branches of the
RTC here in Cebu City declared it as unconstitutional for being violative of due process of law. There
was a declaration to the effect that it was practically the taking of a property without notice or
hearing or without due process of law. Unfortunately, the city hall failed to appeal if they appealed
the decision declaring the ordinance unconstitutional; they failed to pay the proper filing fees. The
judgment in that case became final and executory. There was an order for the city hall to return the
vehicle to the owner. My question is, what if the next day, the same vehicle was stalled, and so
another complainant files a case questioning the constitutionality of the taking of his vehicle by the
city hall through this towing company. Can he invoke the decision of that lower court involving the
same parties, himself and the city hall, as a legal basis for getting back his vehicle from the city
hall? The answer is no, because in so far as the decision of that lower court is concerned, it is only
binding in so far as the parties with respect to the case, not to a subsequent case or subsequent
cases even if they may involve the same parties and the same issues.
Declaration of Unconstitutionality by the Supreme Court
How about if it is the SC that declares a law as unconstitutional. What would be the legal effect? But
before going into that, how does the SC reach a decision to declare a law unconstitutional? How
many votes is needed, in other words, to declare a law unconstitutional? Majority of the members
of the SC who actually participated in the deliberation, on the question of constitutionality with
respect to a particular case. Meaning, if you speak of majority, if there are 15 justices attending the
deliberation, how many votes is needed in order to declare a law unconstitutional? What is majority
of 15? Majority simply means more than , plus 1, 50 percent plus 1. What is 50% of 15 , plus
one? 15 divided by two, plus 1. It is 7.5. But there is no 7 and .5 or persons. So you round it off
to 7, plus 1. You need 8 only to declare a law unconstitutional. So dont say only 5 is needed. The
precise answer to the question as it was asked in the bar exam is majority. So if there are 15, you
need 8; if there are 14, you need still 8. If there are 13, seven. If there are 12, seven. If there are 11,
six. If there are 10, six. If there are 9, five. If there are 8, five.
If there are 7? Is there a quorum if there are only 7 justices attending the session? If there is no
quorum, can they legally deliberate? Of course not. There will be no deliberation at all. So it has to
be at least attended by 8, which is the quorum majority of 15. Otherwise there cannot be a
deliberation.
If you say majority of those who actually participated in the deliberation, that is on the assumption
that there was a quorum. And by quorum we mean the number of justices who should be present to
legally transact business, which is under existing law and jurisprudence, it is practically majority,
which is of the totality of the members, plus one.
What would be the consequence if the required majority is not obtained? Like there are 15 justices
but you were not able to get 8 , there were only 7 who voted as to the unconstitutionality of the law.
What would happen to the appeal, questioning the constitutionality of the law? The consequence
there is that the validity or the constitutionality of the law will be sustained. So the appeal will be
dismissed, for failure to muster the required majority votes. That could mean the sustaining of the
validity or the constitutionality of the law.
Consequences the moment the law
is declared unconstitutional.
Take note of the other consequences the moment the law is declared unconstitutional. You have two
views on this, but you are more familiar of the modern view. The traditional view is that the law is
not a law at all. As if that law never existed. So it confers no rights, imposes no obligations, affords
no protection, creates no office. It would be as if the law was never passed. In this jurisdiction, what
we follow is the modern view. We simply ignore the existence of the law and thus we do not apply
the law. It may not be declared as unconstitutional we simply just ignore it. And if there are other
legal basis that you could resolve the case, then you resolve the case on those grounds. You dont
touch on the constitutionality. But in the event it is declared unconstitutional, you treat the law as
voidable. In the traditional view, it is void. But under the modern view. you cannot just ignore the
operative acts at the time when this law was still in force. So you consider the law merely as
voidable it is valid until it is declared a nullity. The nullity is reckoned from the time of its
declaration by the courts. Only the courts can declare laws as unconstitutional and therefore void,
reckoned from the time of the judicial declaration.
NATIONAL TERRITORY
As we explained before, political is the study of the state. And if we are going to talk about the
state, we are going into the elements of the state. What are the elements or requisites of the state?
We have people, territory , government, and sovereignty. On the basis of the 1987 Philippine
Constitution, let me start with the definition of the national territory, territory as one of the
elements of the state. If you can memorize, the better for the purposes of topping the bar exam.
What consist or comprises the
Philippine national territory?
It comprises of the Philippine archipelago with all the islands and waters embraced therein,
including all territories over which the Philippines has jurisdiction and sovereignty, consisting of its
terrestrial, fluvial and aerial domains. And then you have the waters around, between, connecting
the islands, regardless of their breadth and dimensions, they form part of the internal waters of the
Philippine territory.
At one time, it was asked in the bar exam such provisions in the constitution that mention about the
adoption of the archipelagic doctrine. You have to understand first what an archipelago is because
archipelagic doctrine comes from the word archipelago. Ours is an archipelago. What is an
archipelago? You go back to Article 46 of the UN Convention on the Law of the Seas. It is defined as
a group of islands including parts of the islands, interconnecting waters and other natural features,
which are closely interrelated that such islands, waters and other natural resources form an
intensive geographical economic political entity, or to have historically regarded as an archipelago.
In other words, because there are two actually definitions of an archipelago, one is a body of water
studded with several islands; or you have islands or group of islands surrounded by the sea waters.
What we adopt is the former. Instead of treating these islands as separate and independent from
each other, by adopting archipelagic doctrine, we treat all these islands and waters surrounding the
islands as one integrated unit, as if they are not separated by the sea waters. Going back to my
question, what provisions in the constitution that mention or adopt the archipelagic doctrine? - First
paragraph of the definition of the nation territory. It says that the Philippine national territory
comprises of the Philippine archipelago with all the islands and waters embraced therein. In
other words, the islands and the waters are not treated as separate entities. They are treated as
one integrated unit as if they are not separated by sea waters. You treat the territory as one
integrated unit instead of separate islands. The other provision is the last paragraph of Article 1,
which says the waters around, between, connecting the islands, regardless of their breadth and
dimensions, they form part of the internal waters of the Philippine territory. In other words, instead
of treating the portions of the sea waters separating the islands as international waters, because
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they are beyond the 12 nautical miles from the low water mark from these islands, they are now
being considered as just simply internal waters. They are treated like canals, swamps or rivers
within an integrated territory.
An archipelagic state means a constituted wholly by one or more archipelagos and may include
other islands. How did we acquire theses islands comprising the archipelago. Basically, we acquire
them by cession, transfer, or by treaties, except for Batanes islands , which we acquired by long
occupation and possession.
We also have other islands now recently claimed by us as early as in 1958 before Batanes islands.
In 1958 we have Kalayaan island as part of Spratly islands or the freedom islands. And then we
have the Scarbarogh shawl.
Rewind. We acquire these islands comprising of the archipelago by cession, or by transfer, or by
treaties. Others are acquired by long possession, others are acquired by discovery, terra nullius
that is the Scarbarough shawl. Others are acquired by discovery, by Tomas Kloma that is the
Kalayaan islands group.
Going back to the main archipelago. By virtue of the Treaty of Paris, where Spain transferred
sovereignty to US over the Philippine territory. You have the delineation, the longitudes and
latitudes being defined by the Treaty of Paris, which we adopted in the 1935 Constitution as well as
in the 1973 Constitution, and presumably also in the 1987 Constitution. And that has been
amended or added, by adding more islands by virtue of other treaties which US had entered into,
like the Treaty of Washington, there was the treaty that Us entered with Great Britain, the British
Treaty that was in 1900 and then in 1930. You added how many other islands you have
Cagayan, Sulu, Cebu, Monkey islands and the Turtle islands. So we have all those islands comprising
the Philippine archipelago. And then later in 1958, a certain Tomas Kloma allegedly found the
Kalayaan islands as part of the Spratlys islands.
Where do you find the Kalayaan islands, by the way? Why am I emphasizing on this guys is because
there is a Republic Act 9552, the archipelagic baseline that redefines the Philippine national
territory which until now is being questioned to the SC by Harry Roque, et al, questioning the
constitutionality of this law because it might in effect, amend the definition of the national territory
by ordinary legislation.
Where is Kalayaan islands? Do you know that it is only consist of one bararangay. It is classified as
5th class municipality. It is near Palawan. And where is now the Scarbarough Shawl? It is in the
northern part in the Zambales province.
If you follow the international law relating to the determination of territorial seas, then you are
suppose to determine it from the low water mark of each island. If you are to treat them as
separate islands, like separate continents, then you have to determine the normal baseline from the
low water mark of each island. We cannot afford that. Other wise, we would be creating pockets of
international waters within, and thats when we adopt the archipelagic doctrine. Instead of adopting
the normal baseline, we are now adopting straight baseline method. What is straight baseline
method? It is where you determine the outermost points of the outermost islands and connect them
with a straight line.
There are many countries claiming Spratlys islands you have China Vietnam, Taiwan, Malaysia,
you have Brunei. The problem with China, Taiwan and Vietnam is that they are claiming the whole
archipelago as belonging to them. Other countries claiming because they are claiming certain reefs
like Malaysia and Brunei. We are only claiming Kalayaan islands. Pila ra siguro ni ka square meters,
square miles or square kilometers - .79 Square kilometers. Maayo na lang na kay sa wala. That is
because we have to understand, if that is part of the Philippine archipelago then we have to
consider them as the outermost island, outside of Palawan. You determine then the outermost point
of the outermost island. So if this is the outermost point of the outermost island, you just dont
make a straight line because this is what you will do It would look like a rectangle rather than a
triangle because you are to draw a straight line to connect the outermost point of the outermost
island. You are supposed to connect the outermost points of the outermost islands by a straight
line. Draw a straight line connecting the outermost points of the outermost islands.
You have for example the Scarbarough Shoal in the north, near Subic Bay. It is a triangular reef.
then you have to include that as the outermost point. Imagine the sea water that you will be
claiming as part of the territorial seas. Because the waters found inside are internal waters. The sea
waters would be from the low water mark of the outermost islands of 12 nautical miles.
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Scarbaroguh Shoalis also known as the Scarbarough Reef, or Panatag Shoal, or in Chinese it is
known as wang nyan dao. It is found in the South China Sea, part of the province of Zambales. A
shoal is a triangle chain of reefs and islands but mostly rocks. It is found 123 miles West of Subic
Bay. The basis of our claim is terra nullius and the fact that they are within the 200 exclusive
economic zone. If you are asked, what is the legal basis of our claim over the Scarbarough Shoal
terra nullius, meaning no body owns it, so because nobody owns it and we found it first, then we
must be the owner.
If you follow the archipelagic doctrine, you adopt the straight baseline method. So even if they are
far from the main archipelago, the sea waters separating the main archipelago from the
Scarbarough Shoal or from the main archipelago from the Kalayaan islands are considered as
internal waters. Of course, other countries are complaining against it. They want the Philippines to
define clearly and properly the extent of its archipelagic waters. They say alkanse mi ninyo, you
have several sea waters separating the islands you are claiming as internal waters already, and you
still claim sea waters outside of these islands up to 12 nautical miles. So we are warned to define
our archipelagic waters. And thus, the passage of R.A. No. 9552. It redrew the countrys baseline to
comply with the UNCLOS requirements for archipelagic state. In the process, it excluded the
disputed Kalayaan Island Group, as well as the Scarbarough Shoal from the main archipelago, and
just simply classify them as regime of islands. They are now just simply considered as regime of
islands. They are excluded from the baseline. So when you determine territorial seas or maritime
domain, they are excluded from the computation. The national territory constitutes now like a
triangular delineation which includes large areas of waters within 600 miles to 1200 miles
rectangular enclosing the Philippine archipelago as defined in the Treaty of Paris.
So what happens now? It becomes now rectangular because we are now excluding them. So we
practically would loss the sea waters separating these groups of islands from the main archipelago,
or this shoal from the main archipelago. When you determine territorial seas, it would be from the
low water mark of the outermost island of the main archipelago, excluding now these Kalayaan
islands as well as the Scarbarough Shoal. This is now R.A. No. 9552. If you follow the definition of
national territory, all waters around, between, connecting the islands form part of the internal
waters. So the sea waters separating this KIG from Palawan form part of internal waters. But
because of R.A. No. 9552, they are now excluded, and simply considered them as regime of islands.
That is precisely the issue in the SC, but there is no decision yet. So you determine the countrys
extended continental shelf also believed to contain substantial amounts of oil, natural gas,
minerals, and poly-metals will be excluded if they are not covered by... if they are found outside of
this archipelago... like if they are found in the part of the Kalayaan islands that will also be
excluded, the continental shelf of those group of islands. The regime of islands consists of islands
or natural front areas of land surrounded by waters that remain above water during high tide. That
is the definition of regime of islands. Now, are they part of territory of the Philippines? The answer is
yes, but they will be treated as separate from the Philippine archipelago. And the sea waters
separating this regime of islands from the main archipelago shall be excluded from the definition of
the archipelagic doctrine.
When you determine territorial seas we are saying that part of the Philippine national territory are
the airspace, terrestrial, and the maritime domain. In so far as the airspace is concerned, to what
extent? That was asked in the bar exam. Do we own the universe, to what extent do we have
jurisdiction over the universe? A very simple question however many of the examinees got rattled
by that question. You will have the airspace and the extent of its territory as part of the Philippine
national territory, subject only to the right of way. Like we entered in agreements and treaties with
these foreign countries for the planes, especially commercial aircrafts to pass through. Bu the
universe, like the international waters are free to everybodys use, subject to it must be for the
benefit of mankind. Terrestrial domain refers to the strip of land, over which the Philippines has
jurisdiction and sovereignty. It may not only be limited to the Philippine archipelago, but to the
outside also. Remember, what is the basis historic right or legal title, like our claim over North
Borneo, Marianas islands... and what... you have mastered that in your first year. The maritime
domain or the territorial seas, now with R.A. No. 9552, that has to be changed. What constitution
says to the Phil archipelago, comprises of the islands and waters embraced therein, the waters
around, between, and connecting the islands regardless of breadth and dimension form part of the
internal waters. Take note of what would be the extent of our take over of the territorial seas this
time you will have to exclude the KIG and the SS because now they are considered simply as
regime of islands. So you redrew instead of treating this as a rectangular, it would be now like a
triangular form of territory. Now, how do you determine the territorial seas? If this is the outermost
point of the outermost island, determine the low water mark when it is low tide the last portion of
the sea that gets dry or is dry, when that water starts to run that would be your low water mark.
Assuming this is the low water mark, then you will have up to 12 NM. Beyond that, It becomes
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international waters. Then if there is a contiguous zone, meaning that would be a submerged
portion of the continent that even goes beyond the 12 NM. You will have the extent of 12 additional
12 NM from the last portion of the territorial seas. That means from the LWM, a total of 24 NM. Do
we have jurisdiction over the contiguous zone? Is it part of our territory? It is not part of the territory
but we have jurisdiction over the activities up to 12 NM from the end portion of the territorial seas
for the purpose of implementing Customs Laws, Maritime Laws, Immigration Laws, and Sanitary
Laws. I repeat, the CZ could even go beyond the TS, only up to 12 NM or 24 NM from the normal
baseline. We dont have jurisdiction over the CZ, or it is not part of our territory, but we have
jurisdiction for the purpose of implementing our Customs Laws, Maritime Laws, Immigration Laws,
and Sanitary Laws.
Again take note aside from that, it could still go beyond up to 200 NM as part of the Exclusive
Economic Zone (EEZ). It is not part of our territory, it is beyond of the 12 NM Territorial Seas but we
have exclusive control and jurisdiction in so far as the exploration, the utilization, the management
of natural resources that may be found within the 200 NM EEZ.
One of the questions relating to R.A. 9552 is the change of the delineation of Philippine archipelago
as it is defined in the definition of National Territory because in effect it will exclude these islands
when they are supposed to be part of the Philippine archipelago. So you wait when the question on
the constitutionality is deliberated. But as it is now, the KIG and the SS are excluded from the main
archipelago. So the definition of the internal waters and archipelagic waters are now changed
because R.A. 9552. So you have also the delineation territory has been changed.
Do you remember the Memorandum of Agreement that the government panel had entered into with
the MILF, relating to the establishment of the Bangsamoro Juridical Entity. One of the issues raised
there was why was it declared as unconstitutional. It is because it would violate the definition of
the national territory because by allowing it, in effect, it would establish a separate state which is
contrary to the provisions of Article 1 where it implies that there is only one state comprising of
the Philippine national territory which comprises of the Philippine archipelago with all the islands
and waters embraced therein.
Another question that relating to this to the bar exam, is the question on, is it possible for the
Congress to pass a law and provides for separate republics or separate states, in order to adopt a
federal system, not by amending the constitution but by ordinary legislation. The answer is no. One
of the constitutional basis is the definition of the national territory which implies only one single
integrated state. If theres any change, you have to amend the constitution. Otherwise, the law is
unconstitutional.
Old issues like, is the provision in Article 1 that says and all other territories over which the
Philippines has jurisdiction or sovereignty preclude the Philippines from claiming territories like
Sabah, Marianas islands and Guam because in order for them to be part of the national territory,
the state must have sovereignty and jurisdiction? You know what it means to have sovereignty and
jurisdiction you have to have some control like you have to have control over the Kalayaan islands
by establishing a government there, it is being declared as a municipality; or in the SS for example
as part of the province of Zambales. Do we have a government in the North Borneo? We have many
Filipinos there but there is no government established by Filipinos. Does that mean that because of
that provision, we are dropping our claim over them? The answer is no. There is no decision by the
SC, but by opinions of legal experts and jurists, they would think that we are not precluded from
claiming them in the future. We may still claim them as part of our territory because we have
historic right or legal title as basis. For as long as, we can acquire states in accordance with the
modes recognized by international law such as purchase. We might probably in the future afford to
buy the United State of America. By purchase, we can acquire a territory and under that definition,
we are never precluded from acquiring territories in the future.
CITIZENSHIP
Aside from territory, you also have People as element of the State. In Political Law, the term people
has been used in different concepts, meaning there are different meanings for the term people as it
is used in the constitution. It may refer to the inhabitants of the country in general which includes
the foreigners. It may only refer to the citizens of the country. Or it may only refer to qualified
voters. For example, some provisions in the constitution like the right of the people to
information on matters of public concern. How do you understand the use of the word people in
that context? It refers only to the citizens of the country, because at one time, it was asked in the
bar exam if a foreign journalist can demand as a matter of right that he be given access to
information pertaining to the Philippine Congress as part of his freedom of press. Remember that
the freedom of press includes also the freedom to information because there can be no publication
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without the source of this information. And that is one of the guarantees of the freedom of press.
Going back to the question, the answer is no. The word people in the right to information, refers
only to the right of citizens because the right to information is a political right.
When the constitution says that the right of the people against unreasonable search and seizure
shall be inviolable, what is meant by people here? Can a foreigner invoke this right? The answer is
yes because the word people here does not only refer to citizens of the country but as well as the
foreigners, the inhabitants in this country, protected under this provision as part of his right to
privacy.
When the constitution says that the Constitution can only take effect as to its amendment upon
ratification by the majority votes of the people, who are those people referred to here? It refers
only to qualified voter because one who is under 18, not a registered voter definitely cannot vote in
a plebiscite. When the constitution says voted by majority of the people, based on the plurality
system, the people being referred there are only qualified voters. However, in political law
(Constitutional Law 1) in particular, the term people finds its significance because of his
membership in a political community. We talk about peoples participation in government - maybe
the establishment of government, the management of government, the administration of
government, or just simply making the government accountable to the people. The people being
referred to there are those who are members of a political community, and those members of a
political community we call government, is one who hold the tile of citizenship. In other words
therefore, it basically refers to citizens because only citizens have this relationship with
government. So we must understand who are citizens of the Philippines.
You master Section 1 (Citizenship), you will be alright, and those provisions in the constitution
relating to if you have lost your citizenship, how can you reacquire this citizenship. These are two
important topics in the provision on citizenship (Article IV).
Who are the citizens of the Philippines?
You have section 1. Paragraph 1 thereof provides those who are citizens of the Philippines at the
time of the adoption of the 1987 constitution. When was the 1987 Constitution adopted? Is it upon
the ratification or upon its declaration that it was validly ratified? Was it on Feb. 2 or was it on Feb.
10? It was on the date of the ratification - that was on Feb. 2, 1987. Meaning that if you are a citizen
at the time of the adoption of the constitution, then you are a citizen. So those who are all
considered as citizens of the Philippines by virtue of the Treaty of Paris which led to the enactment
of the Philippine Bill of 1902 that defines who are citizens of the Philippines islands during the
American occupation, then if they have remained as Filipinos citizens at that time 1987 Constitution
was adopted, they are considered Filipino citizens. In fact, theyre considered as natural born
because at that time there was no distinction of a natural born citizen from any ordinary citizen at
that time.
Who else are considered as citizens under this paragraph? You have the 1935 Constitution. So you
have to understand who are considered as citizens under the 1935 Constitution. That includes who
are children of father foreigner married to a Filipina and elected Philippine citizenship upon reaching
the age of majority. Take note of that because later we will make reference to that to understand
the citizenship of these children and their successors. The complication there are the successors
because now their citizenship are being questioned, and they make reference to the citizenship of
the predecessors who may be considered citizens of the Philippines under 1935 Constitution, if not
under the Treaty Of Paris. Then of course, you have the 1973 Constitution - citizens of the
Philippines who remained Filipino citizens at the time of the adoption of the 1987 Constitution.
Let us just take certain cases wherein you apply the Philippine Bill of 1902. You have the case of
Tecson vs. COMELEC. This has something to do with the citizenship of FPJ, when he ran as president
of the republic in 2004. They were questioning on his citizenship because apparently, the father
declared himself as a Spaniard, while the mother was a US citizen. So they have to determine the
citizenship of his predecessors. First was the father. Was the father a Filipino citizen,
notwithstanding having declared himself as a Spaniard? Partly, the father was born to a citizen of
the Philippines pursuant to the Philippine Bill of 1902. The Phil Bill of 1902 defining citizenship
pursuant to Treaty of Paris. Remember that the Treaty of Paris was the legal basis of the American
occupation. And since then, under that treaty, the civil and political status of the territory and
inhabitants thereof were determined by Philippine Congress. And thus, Philippine Congress passed
the organic laws, such as Philippine Bill of 1902, Jones Law of 1916, and the Tydings McDuffie Law.
And one of the provisions as stated in the Philippine Bill of 1902 was on the definition of citizenship.
You still recall who are considered as citizens of the Philippine territory under the Philippine Bill of
1902. By the way, that was also copied in the Jones Law of 1916, then the Tydings McDuffie Law,
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which authorized the drafting of the 1935 Philippine Constitution, and likewise impliedly adopted in
the 1935 Constitution. Do you recall who are onsidered the citizens of the Philippines? Do you still
remember? There were three kinds of inhabitants, because in general it applies to the inhabitants of
the Philippine islands. One, you have the native-born inhabitants it could refer to the aborigines,
the Aetas and the Negritos and including the Muslims, I suppose who were included as the nativeborn inhabitants. They are considered as citizens of the Philippines. Another one, an inhabitant who
was a native of Peninsular Spain, meaning a Spaniard, but at the time this Philippine Bill of 1902
was ratified sometime in April 11, 1899, they have remained in the Philippines. They are likewise
considered as citizens of the Philippines being inhabitants as of April 11, 1899. Or you have an
inhabitant who obtained Spanish papers on or before April 11, 1899. Like he could be a foreigner
from a neighboring state, who was able to acquire some Spanish papers here - a Chinese and then
able to acquire some Spanish papers and lived in the Philippines. As of April 11, 1899, being an
inhabitant, he is considered a citizen of the Philippine islands at that time. Apparently the father of
FPJ, Lorenzo Poe was an inhabitant of the Philippine islands, the fact that he died sometime in 1954.
Because he died in the Philippines, he must have lived in the Philippines as of 1899. That makes
him being an inhabitant a citizen of the Philippines. If he is a citizen, what is now the citizenship of
the father of FPJ? The constitution of 1935 says, those whose fathers are citizens of the Philippines,
the child is Filipino citizen. If Lorenzo Poe was a citizen of the Philippines, then his children must
likewise be Filipino citizens. How about FPJ under 1935 Constitution when his father is illegitimate?
They are saying there are no illegitimate children because they are innocent, there are only
illegitimate parents, meaning not married to each other. Can he claim Philippine citizenship when
the father was never married to the mother at the time he was born? We only presumed that the
child is Filipino because the father who is a Filipino is married to the mother, regardless of the
citizenship of the mother. But in this particular case, where there is no marriage between FPJs
father and that of the mother. Under the existing rules at that time, what should be the citizenship
of the child? It is the legally known parents citizenship. Who is the legally known parent? The
mother because only the mother knows whos the father of her child. When the parents are not
married to each other, it is usually the mothers citizenship that is the citizenship of the child.
However, the opinion of Father Bernas then was the Constitution did not make any qualification
whether the father is legitimate or illegitimate. For As long as there is some kind of certainty that
the child is his, he is a Filipino then child must be a Filipino citizen. How can you be sure that the
child is his? By his own admission and acknowledgement of the child. Then the child may adopt the
citizenship of his father. And the circumstance that made that conclude that the father
acknowledged FPJ because he continued to live with the mother of FPJ, notwithstanding his birth.
Because if FPJ was not his son, he would not probably have continued cohabiting with the mother.
So they are saying that FPJ, having been acknowledged as the fathers child, then he likewise
became Filipino citizen under the 1935 Constitution. That is no longer a complication under the
1973 as well as 1987 Constitution. That was only a complication during the 1935 Constitution.
Also take note guys that under the 1935, 1973, and 1987, for as long as the father is Filipino, the
child is Filipino. How about if father is foreigner and mother is Filipino citizen? The complication was
under 1935 Constitution because when the Filipina marries the father who is a foreigner, she
automatically, ipso facto loses, her citizenship. In which case, during the minority of the child, he is
a foreigner, has no choice now that the mother is a foreigner. But the child is given a chance of
becoming a Filipino citizen by election. Upon reaching the age majority or within the reasonable
period of time if he elects Filipino citizenship then he becomes Filipino citizen. And that is carried
over under 1973 Constitution, and even under 1987 Constitution.
If the child was born under 1973 Constitution, what would be the citizenship of the child and does
he need to elect Philippine citizenship in order to become a Filipino? That is on the assumption that
the mother Filipina married the foreigner father under the 1935 Constitution but he was born only
under 1973 Constitution. For example, the mother Filipina was married to the Chinese father in
1965. What Constitution will govern? 1935, which means that the mother lost her citizenship. Now
the child was born only in 1974, the question now is what is the citizenship of the child during his
minority Chinese. Can he elect Philippine citizenship in order to become a Filipino? He cant. Why
not? Because the Constitution of 1973 which we have adopted in 1987 provides that children are
Filipino citizens if father OR mother are Filipino citizens at the time of birth. At the time of his birth,
what was the citizenship of the father? Chinese. What was the citizenship of the mother? Chinese
also. And therefore the child during his minority is a Chinese, and cannot elect Filipino citizenship
because the Constitution says, only if he was born before January 17, 1973. He has to be born
before Jan. 17, 1973 in order to apply the 1935 Constitution provision on citizenship by election. The
cut-off period then guys for the child to elect Philippine citizenship whose mother is Filipino married
to a foreigner father, he has to be born before Jan. 17, 1973 to qualify. Otherwise, if the child was
born on Jan. 17, 1973 or thereafter, whose mother is a Filipino married to a foreigner, that child is
an alien, a foreigner. And therefore, cannot elect Philippine citizenship in order to become Filipino
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because the 1973 Constitution says, those whose fathers or mothers are citizens at the time of the
birth of the child. Since at the time of his birth, both parents are foreigners, then the child has no
choice but be a foreigner.
Under 1987, I suppose we dont have citizens by election anymore. We have but the cut-off period
is 1994. If the child was born on Jan. 16, 1973, mother Filipino married to a foreigner, the child will
be 21 (let us assume the majority age is still 21) in 1994. So by 1997, since three years is still a
reasonable period of time after reaching the age of majority depending on the reasons of the delay
in electing, there will be no children by election. Presumably, they either are Filipino citizens already
having elected Philippine citizenship, or otherwise they have remained foreigner for failing to elect
Philippine Citizenship within the reasonable period of time after reaching the age of majority in
1994. In other words, that provision is only transitory in acknowledging who are citizens of the
Philippines. It applies only to children who are born before Jan. 17, 1973, whose mother is married
Take note, the word is married. If the word used in the case is merely cohabited with the father.
There is no marriage there. In which case, the child is Filipino because the child follows the
citizenship of the legally known parent who is the mother. If the mother remains Filipino because
she has not married the father, then the child is Filipino citizen. So take note of the terms used in
the case.
Natural-born Citizenship
Lets talk about on natural-born citizenship. Philippine bill of 1902 and the 1935 Constitution have
no definition who are natural born citizens. It was only under the 1973 Constitution that we have a
definition who is natural born citizen. This is significant because there are certain rights that are
enjoyed only by natural born citizens and not by any other citizens of this country. There are three
kinds of citizens in this country. You have natural born under 1973. And you have the native-born
even, but can be considered natural born because they are citizens from birth. And then you have
the naturalized, meaning those who are adopted foreigners after going through the process and
acquired Filipino citizenship.
As Ive said, under the Philippine Bill of 1902 and the 1935 Constitution, there is no distinction. They
enjoy the same rights as citizens of the Philippines. But under 1973, there is now a definition who is
a natural born. He has to be a citizen of the Philippines from birth, and he doesnt need to do any
act in order to acquire or perfect his citizenship in order to be considered a natural born. What are
these rights? Political rights for example. In certain elections and appointments to the government,
you cannot run as President or vice-president, you cannot run as members of Congress, you cannot
be appointed to the SC, to the Sandiganbayan, or to the Court of Appeals, or to the Civil Service
Commission as a commissioner, COA or COMELEC, or Ombudsman if you are not a natural born.
That is the importance of the definition. Another point, there are certain economic and civil rights
that can only be enjoyed by natural born citizens, like the matter of acquiring lands in the
Philippines. If you are a foreigner, you cannot acquire lands in the Philippines. But if you are a
former natural born citizen of the Philippines, you can acquire lands in the Philippines, like 5000
square meters in urban areas or 5 hectares in rural areas.
Who were then considered as natural born under the 1973 Constitution? Those who are only
citizens from birth. So therefore, citizens by election are not considered as natural born. So if he
elected Philippine citizenship before the adoption of the 1973 Constitution, because there is no
definition of who is a natural born, then he is a natural born citizen. After the adoption of the 1973
Constitution, upon his election of Philippine citizenship, he is no longer considered a natural born
citizenship because he has to do an act in order to perfect his citizenship.
That has been changed under the 1987 Constitution. That even those who elected Philippine
citizenship are considered as natural born, whether he elected Philippine citizenship before or after
the adoption of the 1973 Constitution. Before or after, it doesnt matter anymore, under 1987
Constitution, he is a natural born. When you are given a case, and asked whether this successor, a
child or a grandchild can run for offices like as President or as Vice-President or members of the
Congress, then you determine the origin of the citizenship of his predecessor. If the predecessor
was a citizen of the Philippines under the 1935 Constitution and Philippine Bill of 1902, under 1987
Constitution they are natural born, they fall under the first paragraph, because then there was no
definition of a natural born. It was only under the 1973 Constitution when a definition was made.
You have that case, do you remember, of a Filipino who was holding an Australian passport. The
father was born to a Filipino father married to an Australian. The father was already an Australian
citizen. And then the child came back to the Philippines and ran for public office. And so the
question then at that time is whether she can run for an elective office. Apparently it was traced
that he father was a son of a Filipino father under the Philippine Bill of 1902. The grandfather, being
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a natural born, that makes the father likewise a natural born citizen because he was born under the
1935 Constitution when there was no definition yet of a natural born citizen. And she being the
daughter of that father, likewise makes her a natural born citizen, unless there is proof that she
renounced her Philippine citizenship. That is then the principle at that time - the mere possession of
a foreign passport is not conclusive proof that she has renounced her Philippine citizenship.
I am stressing on the fact that under the Philippine Bill of 1902 and under the 1935 Constitution,
there was no definition who is a natural born, until the 1973 Constitution was adopted, and we have
that definition limited only to those who are considered citizens from birth. Which we later changed
under 1987 by adding those who elected Philippine citizenship, considered likewise as natural born
citizens.
This natural born issue finds its significance as well this time on repatriation. To apply for
repatriation under the Dual Citizenship Act, you have to be a former natural born citizen.
You have mastered the basics, so we go to the complications just in case you might be asked in the
bar exam. This is because of the issue of the citizenship of Justice Ong. Remember Justice Ong, a
justice of the Sandiganbayan, who was appointed to the SC, and later whose citizenship was
questioned because he passed as justice of Sandiganbayan that requires a natural born citizen.
How come later when he got appointed to the SC, an injunction was issued to enjoin the Executive
Secretary from issuing an appointment to Justice Ong, and later enjoining the taking oath of office
because he is not a natural born citizen. Thats why I am emphasizing likewise the issue on natural
born citizen.
Naturalization
Another point you should take note this time is about naturalization. You have in Civil Law the
requirement of naturalization. Naturalization could be Judicial, Legislative, and Administrative. It is
the conferment of Philippine citizenship upon a foreigner who is applying for Philippine citizenship.
The guideline is it is not a matter of right. It is a privilege being granted by a sovereign state upon
an applicant foreigner. If it is a judicial process, you have to follow C.A. No. 63 that has not been
changed until now. For certain probably, some of the provisions are changed because of this dual
citizenship, on reacquiring Philippine citizenship, on the issue of repatriation. On qualifications to
become a Filipino citizen, the same law applies. You have to have all the qualifications and none of
the disqualifications.
Administrative, just simply consisting of cancellation of your Alien Certificate of Registration (ACR)
after proving that you suffer none of the disqualifications provided for by law. You may not possess
all the qualifications in order to become a citizen for as long as you dont suffer any of the
disqualifications like for example you are a believer in bigamy or polygamy, you are suffering from
a contagious and incurable disease, you are a makibaka using violence as a way or as a means of
asserting your ideology or your philosophy in life. It is less strict compared to having all the
qualifications like you have to be at least 18, a resident in the Philippines for ten years, must have a
property no less than five thousand pesos - and there are several, there are more than 10
requisites actually.
And because this is not a matter of right, it is very tedious kung judicial siya. You have one year to
declare your intention. Where do you file? Not with the court immediately. First you have to file it
with the Office of the Solicitor General. And the SG will verify your intention of becoming a Filipino
citizen it would take a year. And if they are satisfied, then they will give you a go signal to file your
petition. And then you file your petition, there is publication in the Official Gazette as well as in
newspaper of general circulation. It takes time. Thereafter, you have to wait for two years before
you take your oath of allegiance before you are issued with the certificate of naturalization. And
that its never final. Any time, that can be the subject for revocation and thereby losing your
citizenship.
The legislative process and the administrative process are a lot easier. Administrative, it is only
being done in the DOJ through the Bureau of immigration. There is a special committee on
naturalization where you ask for the cancellation of your ACR. And then you have the legislative
process by simply passing a law conferring upon the individual the Philippine citizenship. At one
time I remember there was some kind of an amnesty or immunity granted to many Chinese who
were smuggled into the country, in order to legalize their residency in the Philippines, there was
later a law that was passed granting them citizenship. Kita mismo we had mass naturalization by
virtue of the Treaty of Paris and then the Philippine Bill of 1902. All inhabitants were considered as
citizens of the Philippines by virtue of that law. That is through legislative process particularly the
Philippine Bill of 1902.
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What is important is the effects of naturalization. If granted by the court, what will happen? Of
course the applicant becomes a Filipino Citizen. What Kind? Of course not natural born citizen but a
naturalized Filipino citizen. Therefore, cannot run as President, can only run as Governor- the
highest position that he can run for. Or to be an RTC judge but not a justice of the CA or of the SC.
He would have the same rights, except for those rights that are reserved only for natural born
citizen. How about the wife who is also a foreigner, and also the children? What would be their
citizenship? Will the wife automatically become a Filipino citizen? The answer is no. Case in point is
Moya-Lim. It is not ipso facto, she still has to prove that she suffers none of the disqualifications.
Then she becomes a Filipino citizen. How about the children? You have to distinguish. Is he a minor
at that time the certificate of naturalization was issued or granted, or he was already of age? If
minor, he becomes a Filipino citizen. What kind of Filipino citizen? Naturalized likewise under the
principle of derivative citizenship. How about those who are already of age they remain
foreigners.
Now, can anyone question the legality of the natural proceedings of naturalization of a particular
person who is already considered as naturalized Filipino citizen? That was an issue in the case of
Limcaichong, (and you also have the case of Kilosbayan vs. Ermita).
She ran for Congress, and then a disqualification case was filed against her before the COMELEC on
the ground that the naturalization of the father was irregular, and therefore the father illegally
became a naturalized Filipino citizen. In other words, the judgment on the naturalization was void. If
the judgment was void, then the children who became Filipino citizen by virtue of that citizenship of
the father likewise cannot claim Filipino citizenship. And if she is not a Filipino citizen, then she
cannot run as member of the Congress. It was recently decided, April 1, 2009, Jocelyn C.
Limcaichong vs. COMELEC. It was a private individual who filed the disqualification case against her
on grounds that she was not a Filipino citizen. It was dismissed by the COMELEC. Question on the
legal personality of the one filing - can he question the validity of the naturalization proceedings in
an action such as a COMELEC case on qualifications? This you must take note guys because the SC
said clearly, under the law and jurisprudence, only the state through its representatives
designated by statute (such as the Solicitor Generals Office) that may question the illegally or
invalidly procured certificate of naturalization proceedings. It is not a matter that may be raised by
private persons in an election case involving the naturalized citizens descendant. The descendant
in this case is Jocelyn Limcaichong. It is not in a collateral action but should be in a direct action
questioning the validity of the naturalization proceeding. Only the state through its representative,
such as the Office of the Solicitor General, can file an action questioning the validity of the
naturalization proceeding, not by a private citizen. That has not been asked in the Bar Exam yet,
who knows.
What happened in the case of Justice Ong? The mother of Justice Ong was a Chinese from birth.
Then the father was naturalized. That makes the mother a naturalized Filipino citizen. Then this
mother married another Chinese under the 1935 Constitution. What happened? She lost her
naturalized Filipino citizenship. Then the husband applied for naturalization. The fathers
naturalization was granted. At that time, the child was still a minor Justice Ong. So what appeared
in his birth certificate, he was a Filipino citizen however by virtue of derivative citizenship, he was a
naturalized Filipino citizen. When he took the bar examination, there was a clarification asked if he
is a citizen. Kaniadto, ang mga Intsik or foreign-sounding nga apelyido, you have to get a
declaration from the DOJ kung Filipino ba gyud ka. Kay Chinese man siya sounding, there was an
opinion as and the DOJ declared that he is a natural born citizen. When he applied for the Judiciary,
and eventually to the Sandiganbayan, with that declaration, he was considered a natural born
citizen and got appointed as justice of the Sandiganbayan. When he applied for the SC, that was a
different story because they would insist that the naturalization judgment of the father shows that
the father was naturalized and at that time he acquired citizenship by derivative citizenship. So the
question raised in the SC - can an Administrative declaration amend or correct ones citizenship?
And so the SC said the alleged subsequent recognition of his natural born status by the Bureau of
Immigration and the DOJ cannot amend the final decision of the trial court, stating that respondent
Ong and his mother were naturalized along with his father. That would take a judicial action to
correct his birth certificate or to correct that judgment of the court declaring him as naturalized
Filipino citizen. The complication now is someone who got convicted asked for the nullification of
the judgment saying that the judgment was void because the one who penned the decision was not
bodidly validly appointed because he is disqualified or he is not qualified to be appointed as justice
of the Sandiganbayan. That was a real case, where the SC sustained the validity of the judgment of
conviction. What was the justification it was a judgment rendered by a de facto officer, which
enjoys the presumption of validity as well as legality, made in good faith. Until now he is a justice in
Sandiganbayan.
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JUNE 7, 2010
CITIZENSHIP OF THE CHILD BORN UNDER THE 1973 CONSTITUTION TO A MOTHER
MARRIED TO A FOREIGNER UNDER 1935
Last time we were discussing on Citizenship. What is the provision on the 1973 Constitution on
Citizenship? Those whose fathers or mothers are citizens. And when did the 1973 constituion take
effect? On january 17, 1973. If the child was born after the 1973 constitution was adopted where
the mother was married to the father who is foreigner under the 1935 constitution the mother has
lost ipso facto upon marriage her to the foreigner husband. So then what was the citizenship of the
mother at the time of the birth of the child? The mother remains foreigner unless she has
reacquired her citizenship upom the birth of the child. At the time of marriage she lost her
citizenship under 1935. To qualify to elect Philippine citizenship he has to be born before jan. 17,
1973. He may elect Philippine citizenship during the time the 1973 constitution was adopted but
the condition precedent to that is he has to be born before Jan. 17, 1973. An exception to that is if
the mother was married under 1935 constitution and reacquired her Filipino citizenship at the time
then child was born then the mother at the time of birth must be Filipino and the child must be
natural born citizen because the father or the mother is Filipino citizen.
EFFECTIVITY OF THE 1987 CONSTITUTION
The effectivity is on the January 17 at the time of the decleration by the time of decleration by
President Marcos that it was duly ratified pursuant to proclamtion 1102. Thats why the controversy
relation to the adoption of the 1987 constitution, when did it take effect? Esguerra vs de leon or de
leon vs esguerra. Whether it was upon ratification or upon the declaration of an executive order
issued by President Aquino then it was validly ratified, that was sometime in February 11. This one
was on February 3 and the constitution in that case of De Leon, I mean the the SC said in the case
of Deleon that it is upon ratification. Why? Because the Constitution says so. You can find it in the
transitory provisions.Where the Constitution provides that effectivity of the constitution or its
ammendment shall take effect only upon ratifiction by majority of the votes cast durng the
plebiscite called for that purpose.
(QUESTION OF A CLASSMATE: KALAYAAN ISLANDS PART OF NATIONAL TERRITORY)
Kalayaan islands are part of freedom islands. Is it part of the national territory? Yes. But the
controversy lies on where the seawaters around and separtaing between the Kalayaan Island
groups (KIG) and palawan still form part of national territory when they are only considered as
regime of islands. And you follow the 12 nautical miles from KIG and 12 nautical miles from Palawan
will be excluded form the determination of Territorial seas or the Archipelagic waters. Because by
themselves they are considered an archipelago. It is considered no longer part of the Philippine
archipelago. They form part of the Spratly archipelago. But they are still part of the territory on the
basis of discovery and therafter you have the occupation and then we have also to consider thay
they are in the 200 limit of the exclusive economic zone. Its is nearest to the western part of
Palawan.
CITIZENSHIP UNDER THE 1987 CONSTITUTION
Going back to our discussion on CitizEnship. What we have discussed last time are the provision of
those who are citizens of the Philippines at the time of the Adoption of the 1987 constitution 1st
par. And because of that we make reference to who are considered as Filipino citizens prior to the
adoption and who have remain Filipino Citizens at the time of the adoption of the 1987 constitution.
First and Foremost we made mention of the Treaty of Paris, because that was the legal basis for the
determination of the US over the civil and politcal status of the Filipino people at that time and its
territory. Pursuant to the treaty of Paris, or there were organic laws passed then by Congress which
were given the authority to determine the civil and political status of the Philippine territory. And
under the Philippine bill of 1902, it considers Citizens of the Philippines at that time the inhabitants
of the islands who consists of the natives, and not only the natives but were referred to as the
indios during spanish period. We also have the spaniards themselves, the peninsularies who have
remained in the Philippine Island and have not given up their stay here or they continue to stay
here even after the ratification of the Treaty of Paris on April 11 1899. That is why the effectivity of
the reckoning period for them to be considered as citizens of the Philippine islands was April 11
1899. And finally of course those who may not be natives nor spaniards but however they were able
to afford spanish papers and who have remained in the Philippine islands, they were considered as
inhabitants or citizens of the Philippine islands. If these people have successors meaning children
and grandchildren and so on and so forth thereafter, and these predecessors have remained are
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conisdered Filipino Citizens especially the fathers or the mothers under the 1935 constitution the
children likewise become Filipinos citizens.
SIMILARITIES AND DIFFERENCES ON THE PROVISION OF CITIZENSHIP IN THE 1935 AND
1973 CONSTITUTION
differences
1.
Foreign parents who were elected to public office before the 1935 constitution
So you have the 1935 constitution defining who are citizens of the Philippines. More or less the
1935 and the 1973 constitution are the same. The difference only lies on the matter of those who
are foreigners, born of foreign parents in the Philippines however they were elected to Public office
before the 1935 constitution was adopted.
You have those cases of Chiongbian and another case involving a serian couple who had a son and
and later became a member of the concon that drafted the 1935 constitution. The Dakaram couple
had a son, you recall that the determing factor there was that they were born of foreign parents
who were elected to public office before the 1935 constitution was adopted.
In the case of William Chiongbian; a case was later filed against him trying to revoke his license in
engaging in the business of shipping because that is only reserved for Filipino citizens. On the
gound that he was not a citizen of the Philippines by virtue of he was a Chinese, but then it was
established by the Supreme Court , that the father of William Chiongbian was elected to a
municiplaity somewhere in Misamis, conselor or vice president which is equivalent to mayor or vice
mayor. So because of that the Father became Filipino citizen and at the time he became Filipino
citizen William Chiongbian was still a minor, by derivative citizenship he also acquired the
citizenship of his father and became Filipino citizen. His children thereafter became natural born
Filipino citizens because the father is Filipino and in fact I think one of the children was elected in
congress because he was considered a natural born citizen.
2.
Determining factor is the citizenship of the father whether child is legitimate or not
according to the 1935 constitution
And then there is another difference if the father is a Filipino citizen. They did not mention of the
mother by then the concon had so many males that they only recognize the guy as the determining
factor in the citizenship of the child. When they cannot be certain that the child is theirs i
supposed, that the only person who knows with certainty that the child is hers is the mother. But
then it was not the basis for the determining of the citizenship of the child but it was the father.
Take note that under the fathers basis of citizenship under the 1935 consitution on the principle of
Jus Sanguinis. It does not mention that the father is legitimate or illegtimate. Menaing whether or
not the father is married to the mother of the child.
Because the law does not distinguish,
according to Bernas, we should not make any distinction. As long as the child is recognized by the
putative father, the child will acquire the citizenship of the father. If the child has been
acknowledged by the father even if he is not married to the mother then the child is considered a
Filipino citizen. Take note that the basis is Blood relationship. If the father is an adopting father then
definitely the child will not acquire the citizenhsip by adoption because it will defeat the purpose.
3.
when mothers citizenship will be followed according to the 1935, 1973 and 1987
consititution
What about the mother? The mothers citizenship can only be followed if shes married to a filipino,
then no choice. Or if she remains single and not married to the Foreigner father, then the child
follows the citizenship of the legally known parent. The legally known parent being the mother the
child is a Filipino citizen. And thats the difference between the 1935, 1973 and 1987 constitution.
Because if the basis is Jus Sanguinis and the mother is Filipino then why not the child be also a
Filipino regardless of who the father is or what is the citizenship of the father? Now the law states
that whose fathers or mothers are citizens then the children must also be Filipino citizens. But take
note of the condition, the child or children must be born before or after Jan. 17, 1973. Where talking
about a Filipino mother married to a Foreigner. The child has to be born by Jan. 17, 1973 or
thereafter because if the child was born before that then what would apply is the 1935 constituion
which has the requirement of election.
Under the 1935 constitution, when a Filipina marries a foreigner she looses her citizenship. This is
by operation of law, automatic. because of the assumption that when a filipina married a foreigner
she acquires the citizenship of her husband. And to avoid any confusion, she becomes the citizen of
the country of her husband. She adopts the nationality of her husband. So then, when the child is
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born before Jan. 17, 1973. The child during his minority has no choice because the father is
foreigner the mother likwise has become foreigner, the child is also foreigner but the child under
the 1935 Constitution is given the chance to be a Filipino citizen. How? By election. The election of
the child has to be done upon reaching the age of majority or within reasonable period of time. One
of the cases of the SC has ruled that three years could be reasonable depending on the
circumstances, upon reaching the age of majority.
Another point you should take note is the complication which arose when there was a definition for
natural born citizen under the 1973 constitution. So how do you call or classify children who have
elected Filipino citizenship, pursuant to the provisions of the 1935 constitution when the 1973
consitution has provided that the Natural born citizens are only those who are citizens from birth
without having to elect or perform any act or to acquire or perfect his citizenship. Is it not by
election he is perfecting his citizenship because form birth he is not Filipino citizenship or acquire
Filipino citizenship. That is why under the 1973 constitution they were not considered natural born
citizens if they elected Philippine citizenship. That elected Philippine citizenship at the time the
1973 constitution was adopted. Meaning that the child became 21 only at the time the 1973
constitution was adopted. So he elected Filipino citizenship to become a citizen. Is he natural born?
Not anymore because under the 1973 consititution there is a definition of a natural born citizen. But
if he elected Philippine Citizenship before Jan. 17, 1973, is he a natural born? The answer is yes,
because in fact there was no definition of who is a natural born citizen.
It is unfair. Precisely it has been corrected by the 1987 constitution by considering both as natural
born citizens. Now, you have two definitions of natural born. 1 is a person who is born from birth 2.
Who elected Filipino citizenship pursuant to the provisions of the 1935 constitution.
So basically, those are the differences between 1935, 1973 and even 1987 constitution. Because
the 1987 constitution is a verbatim copy of the 1973 constitution on citizenship.
Simmilarities
1. Provisions on Naturalization
So we go to the common provisions that are similar. On what provisions are they similar? You have
the provision on naturalization. It is similar. The provisions on 1935, 1973 and 1987 are similar and
in fact the same. Commonwealth Act 63 and even before that, there was this law relating to
naturalization. There has been no changes regarding naturalization. Naturalization is a mode of
acquring citizenship. If you remember you can acquire citizenship from birth either blood
relationship or place of birth. Jus sanguinis and Jus soli Principles. Jus Sanguinis is blood relationship,
father, mother are both Filipinos, then the child is also Filipino citizen. If born in the Philippines do
we adopt Jus Soli? If you are a foreigner born in the Philippines, are you considered to be a Filipino?
No, because we dont adopt Jus soli. What we recognize only is blood relationship. Aside from that,
how do you acquire Philippine citizenship? By naturalization and it could not be by marriage. If a
filipino married a foreigner, would a foreigner wife be automatically be a Filipino? The answer is no
because marriage is not a mode of acquiring citizenship. How about a Filipina marrying a foreigner.
Would the foreigner acquire the citizenship of the Filipina wife? The answer is no, in fact the
husband has to apply for judicial naturalization.
Natuaralization is therefore a process by which the State in its sovereign capacity adopt a foreigner
into the body politic and clothe him with all the rights and privileges of a Filipino citizen. In other
words applying the principle of Equal protection of laws between a naturalized filipino citizen and a
natural born citizen in terms of rights and obligations, there should be no difference. Otherwise that
would be a violation of equal protection of laws. Take note, that the only exception to that is when
the law requires certain privileges only to be enjoyed by natural born citizens, like political rights
and economic rights and we have mentioned that already. Generally, the natural born and the
naturalized citizen enjoy the same rights in terms of rights and privileges which maybe granted by
law. And because of this it is not a matter of right on the part of the foreigner to apply for Philippine
citizenship. It is a privilege granted by a sovereign state. It is an act of grace on the part of the
state granting that right or title to a foreigner.
1.a. Kinds of Naturalization
The laws of naturalization have three kinds. You have one through administrative process, like what
is done by the department of justice through the Bureau of immigration. This would involve only the
cancellation of the alien certificate of registration. Or it could be a legislative process where
congress passess a law coonferring citizenship to foreigners. At one time there where were chinise
who were smuggled into the country and they were granted amnesty and they were conferred with
Filipino citizenship. Or sometimes they confer it to foreigners who have contributed to the countrys
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improvement. And so by law they confer such Philippine citizenship to the foreigner. But usually it is
through Judicial process. If it is through Judicial process, we have commonwealth act 63 providing
for qualifications and for disqualifications. Just go over that guys and take note of them.
1. B. Effect of Naturalization
As i have explained before what is important for political law purposes is the process and the effect
if granted the certificate of naturalization. So effective upon the grant of the certificate of
naturalizaton, take note as to its effect, the applicant foreigner becomes a naturalized filipino
citizen. How about the wife and children? The wife is not automatic none the less she can acquire
Philippine citizenship after proving that she suffers none of the disqualification. How about the
children? Only the minor children can acquire through derivative the citizenship of the father. Like
the father the minor children are naturalized born citizen. Just like the case of Justice Ong, he was
naturalize Filipino citizen pursuant to the grant of naturalization to his father at the time he was a
minor.
1. C. Revocation and who can apply for revocation
And of course in the matter of revocation, this is not final, anytime it can be revoked by the state as
i premised earlier it is an act of grace by the state which si granted by the state to the foreigner.
You have no security of tenure so anytime it can be questioned. So who can question the
naturalization of foreigner?
As it was settled in the case of limkaichiong 1 vs the COMELEC, only the state can through its legal
representative such as the Solicitor general. Who can question the legality or the validity of the
grant of Naturalization to a foreigner in a direct action proceedings, it cant be in a collateral
proceeding such as when you file for a certificate of candidacy and you ask for a disqualification of
a candidate on the ground that she is not naturalized or that she is not a citizen of the Philippines
considering that the the naturalization of her predecessor through has been illegally obtain. You
take note of that.
Take note that it is also asked in the bar exams relating to proceedings of naturalization. That is why
im taking the case of limkaichiong. Because at one time that Burca case was asked. Rep. Vs Burca 2
where there was the question of the revocation of the naturalization of a particular foreigner
because he did not make apparently any return for income for income tax purpose. He did not
declare that he had a business and he had an income. In other words, he did not file an income tax
return. And later it was only discovered after he was granted Filipino citizenship. And so the Solicitor
General representing the republic initiated for the revocation proceedings or the cancellation of his
naturalization. While the case was still pending the subject of the revocation or the cancellation of
teh certificate of naturalization died. And the wife and children who became Filipino citizens by
derivative citizenship move for the dismissal of the case in the ground that it has become moot and
academic. If you were the judge would you dismiss the case? That was asked in the bar exam. Has
the issue become moot and academic because of the death of the subject? The SC said that
anytime one of the modes of loosing citizenship is the cancellation of the certificate of
naturalization because there is no finality to it, if it is revoked because of the acts of the subject or
applicant after the grant of naturalization, meaning like he committed a crime and one of the
penalties is the cancellation of his certificate of registration. The violation came after he committed
acts in violation of the law which is a violation of the condtions on which he was granted citizenship.
Came only after he was granted his certificate of naturalization. The SC said that the wife and
children who derived their citizenship from his naturalization should not be prejudiced. That would
not be fair to the wife and children.
However, in the case of Burca what was the reason for the revocation, it was on the ground of lack
of qualification. And Therefore, he having not complied with the qualification as provided by law any
judgement granted is invalid or void. So, he never therefore acquired Philippine Citizenship because
he was disqualified. What right did he transfer to the right and children when he never acquired it.
In other words, nothwithstanding his death, it can still be revoked and if revoked this will affect
definitely the citizenship of the wife and children who derived it from the grant of naturalization of
the husband or father in this case. Because it goes into the qualification here of the applicant where
according to the SC the naturalization of the applicant was obtain through fraud. Regardless
1
- JOCELYN SY LIMKAICHONG VS. COMELEC, G.R. No. 179120, April 1, 2009 Clearly, under the law and jurisprudence; it is the State, through its representatives
designated by statute, that may question the illegally or invalidly procured certificate of naturalization proceedings. It is not a matter that maybe raised by private persons in
an election case involving the naturalized citizens descendant.
2
Burca vs. Republic, 51 SCRA 284 EXCEPTIONS (to res judicata principle) 1) a persons citizenship be raised as a material issue in a controversy where the person is a
party; 2) the Solicitor General or his authorized representative took active part in the resolution thereof; and 3) the finding on citizenship is affirmed by the Supreme Court .
22
whether the applicant dies in the pendency of the case is immaterial. The case can still prosper and
continue.
Where are talking of derivative citizenship, In the time of the grant of the minor is outside the
Philppines he is given the chance to be sworn in and manifest his intention of remaining a Filipino
citizen before reaching the age of majority if he is still residing outside of the Philippines and at the
time of the grant he is still a minor. What is emphasized by law is that when he is a minor he is
presumed to have derived his citizenship from his father that is if the grant is valid. If the child was
born after the grant then the child is considered a natural born citizen not naturalized. Father
naturalized and the child born thereafter, what is the citizenship of the child? Child is natural born
because at the time of birth the father is already of Filipino citizen or the mother is Filipino citzen.
What about the case of Justice Ong, there was no question as to its validity, there was a question on
his qualification in this particular case. For them they may not question his naturalization because
he is not natural born. We are talking about revocation proceedings, they were not asking for
revocation because there was nothing to be revoked. Recall the case of Justice Ong. Justice Ong was
a justice of the Sandiganbayan applied for the SC. In fact he was supposed to be issued
appointment papers where it not for the injunction that was asked for by the kilosbayan from the SC
to stop the issuance of the appointment papers and the subsequent assumption and taking oath of
office by justice ong. The SC took cognizance of the Petition, perhaps even if the interest of
Kilosbayan was not personal. However because it goes into the qualfications of a justice of the SC
that are required by the constitution the SC took cognizance over the petition and said that JBC can
only make an initial determination of the qualifications of the members of the judiciary including the
ombudsman but ultimately the SC can look into the matter. In other words the SC is never
precluded especially when it involves constitutional provisions. And so the SC look into the matter
and the SC found that Justice Ong was born to a filipino mother, although born as a Filipino citizen,
and who was married to a father who is Chinese under the 1935 constitution. Although justice Ong,
insisted that his mother remained a Filipino citizen and does he remains natural born at the time of
birth he too was a natural born citizen. The circumstance are like this, mother Filipina married to a
chinese under the 1935 constitution she lost her citizenship. And then later the Father became a
naturalized Filipino citizen at the time Justice Ong was still a minor became a Filipino citizen by
derivative citizenship. The decision of the court was very clear that the wife and child and in this
case Justice Ong became naturalized Filipino citizen by virtue of derivative citizenship the after
being naturalized Filipino citizen. The citizenship cant be changed by an administrative declaration.
The ruling there of the SC is that a judicial decision cant be superseded by a declaration made by
an a adminsitrative office of the department of Justice through the bureau of immigration. So you
need another judicial order to clarify the matter and change it , that is what the SC is saying. We go
to the courts and have it corrected, in the mean time as far as the documents are concern, you are
not natural born.
Definitely it goes into the qualifications of the applicant, party in this case is considered not a
person of good character. One of the qualifications for naturalization, you must be a person of good
moral character.
Filipina Does not loose citizenship when she marries a Foreigner; exception
Another thing you have to take note. We have discussed already the qualifcations of natural born
citizenship. You take note of a Filipina marrying a foreigner, its already presumed that if a filipino
marries a foreigner wife, the Filipino remains a filipino. How about if a Filipina marries a foreigner
does she lose her citizenship? The answer is no, she remains a Filipino. Take note however of the
exception that unless by her act or ommission she is deemed under the law to renounce her
citizenship. That is the only limitation there.
Loosing Filipino citizenship
1. expatriation
Favourite in the bar examination is with regards to, if you acquired your citizenship, that is why you
dont value it so much you didnt make an effort to acquire it. You have it from birth. So you remain a
Filipino citizen. But is there a way of loosing it that which you are taking for granted. There are ways
under the law to loose her citzenship and among those ways take note is when you renounce
expressly your Philippine citizenship. This is what we call expatriation which is the opposite of
repatriation. You mean to say that you simply declare that "Im not a filipino anymore. I am an
american Citizen. Can you just do that in that manner? The answer is no, there are certain
procedures like you apply for naturalization in a foreign country or you served the armed forces of
another country, then you make a express renunciation of your Philippone citizenship as a condition
23
precedent to support the constitution and the laws of the country you are applying for
naturalization. The end of all these is you expatriate yourself. You renounce your Philippine
Citizenship.
How else will you loose your citizenship? Is marriage a ground? We have explained that already, you
will not loose your citizenship through marriage. By applying for naturalization in a Foreign country,
as a general rule you loose it but as applying the dual citizenship act now, you may retain your
citizenship and acquire a foreign citizenship. Before the effectivity of the dual citizenship act by
applying for naturalization ina foreign country you are deemed to have renounce your citizenship.
You have for example the case of Labo vs COMELEC3, he got married to an australian citizen and
then he applied for naturalization and became a naturalize australian citizen. after which he she ran
as mayor of Baguio City notwithstanding having won the election he was not able to serve as mayor
because he was disqualified. Why was he disqualified? Because he lost his citizenship when he
applied for naturalization in a Foreign country. Again take note that this has been changed because
of RA 9225, which allow practically to retain his Filipino Citizenship notwithstanding his having been
naturalized as a foreign citizen of anither country.
Are you familiar of 9225? When did this 9225 take effect? August 29, 2003. If you applied for
naturalization before August 29, 2003, you loose your citizenship. But if you apply for naturalization
on or after Aug. 29, 2003 you will enjoy dual citizenship. You retain your Filipino citizenship at the
same time acquire a foreign citizenship. Its not only a mode of reacquiring but its also a mode of
retaining Philippine citizenship notwithstanding having applied for naturalization in a foreign
country. Duha ni siya ka implications or provisions under RA 9225. 1. Is you retain even if you have
applied for naturalization in a foreign country, 2. the other one he has already lost because he
applied for naturalization Aug. 29, 2003 but he can reacquire that lost citizenship and at the same
time retain that foreign citizenship.
We go to later to reacquiring, im taking about the mode of retaining notwithstanding the applying
for Naturalization. Take note that the reckoning period is Aug. 29, 2003 because this took effect on
Aug. 29, 2003. Diba as I said by naturalization as a rule you loose your Philippine citizenship unless
you apply under RA 9225. You retain your Filipino citizenship even if you applied for foreign
citizenship. That is the beauty of 9225.
2. Joining armed forces of a foreign country; exception mutual defense treaty
Another way of loosing citizenship is when he serves the Armed forces of a foreign country. Except
when the Philippines enters into a mutual defense agreement or treaty with that foreign country. In
which case he retains his Philippine citizenship. Like for example we have signed a treaty with US, a
Mutual defense agreement or a treaty with the US. Even if you served the navy of the US, some
Filipinos served in the navy of the US, they remain Filipinos citizens unless they apply for
naturalization in the US. By applying under 9225, he may still retain his Filipino citizen. How else do
you loose your citizenship? By the way if you served the Armed forces of the foreign country that is
an enemy country of the Philippines under the principle of indelible allegiance, you are still
considered Citizens of the Philippines for prosecution. You cannot invoke it as a defense. Like I am
not a filipino citizen because i lost it when i render services to this foreign country. He can still be
charged with treason or espionage under the principle of indelible allegiance. You cant erase your
citizenship for purposes of prosecuting you. Or by violations of the Articles of War or whatever
provisions relevant to what you have done. You have been betraying the countrys sovereignty.
When you desert the armed forces of the Philippines, you deserted, AWOL, or missing in action then
that would be a ground for your loosing your citizenship. You are convicted of disloyalty to the
republic of the Philippines that is also a way of loosing your Philippine citizenship. Not much on that
guys i think it is only in 9225 that you should relate the modes of loosing.
Reacquisition of Citizenship for Election Purposes
The more important ones that is relevant for bar exams purposes is the reacquisition of your
citizenship for purposes of running for local or national elective purposes. What are now the points
on one who reacquires his citizenship by virtue of 9225? Would he qualify to run for local elective
offices not withstanding the absence of residency? Can he run for national elective office
notwithstanding that he ahd lost his natural born citizenship?
Three modes of reaquisition
Labo vs Comelec G.R. No. 105111 July 3, 1992

24
Before we go into that, lets go to the modes of reacquiring. You can loose your citizenship, but dont
loose hope you can still reaquire it. How do you reacquire your Philippine Citizenship? If you loose
your citizenship by naturalization in another country, you can also reacquire your Philippine
citizenship by de-naturalizing yourself from the foreign citizenship and apply again for
naturalization or repatriation. Meaning you count the reasons for loosing the Philippine citizenship.
Basically there are three general modes in reacquiring your citizenship. 1. You have naturalization
which is usually a judicial process. 2. Another one is through repatriation which is basically an a
administrative process 3. And you have this legislative enactment where congress pass a law
confering back to you your citizenship.
a. Naturalization
Lets talk about naturalization, what would you do? You would just be like any foreigner who would
apply for Filipino citizenship again like the case of Labo. Labo where the SC perhaps were
exasperated by him, he liberally gave up his Filipino Citizenship because he got married to an
australian citizen. maybe he was thinking about his business and investments in Australia. He
applied for Naturalization in australia and became an australian citizen. probably got bored there,
he came back to baguio and applied. Remember the faith healer who applied for the election as
mayor of Baguio city and he won but was disqualified. The SC said that mere filing of the certificate
of candidacy did not allow you to automatically acquire or reacquire your citizenship. That is what
the SC said, you apply for the naturalization otherwise you are not a citizen of the Philippines or you
are disqualified.
Take note of the case of Frivaldo 4. In the case of Frivaldo an old man, the greatest descenter of
Marcos during his time. Now what happened? He got persecuted by the Marcos administration he
fled to America. In order to legitimized his stay in America he applied for Naturalization and became
a US citizen. After the Marcoses, he came back and ran as governor. It think in sorsogon. He won in
that election but was disqualified, but he insisted that the mere filing of his Certificate of Candidacy
he has acquired his citizenship. You take note of this guys. What is the significance of the filing of
the Certificate of Candidacy? Have you seen a certificate of candidacy? It is under oath, where you
make a declaration, I, Juan Dela cruz, a Filipino citizen. That is why he said, that the mere filing of
the certificate of candidacy, he reaqcuired his Filipino citizenship. But the SC said, No you cant do
that. While his reasons for becoming a US citizen was valid but then again the law requires that
aside from taking his oath of allegiance again to the republic he has to register that oath of
allegiance with the civil regsitry or with the bureau of immigration declaring himself as a filipino
citizen. That was under PD 725 at the time and later was changed under RA 8171.
But you will be questioning the case of Edu Manzano 5 where the mere filing of the Certifcate of
candidacy he was considered a Filipino citizen and therefore qualified to run as vice mayor of Makati
City. It was simply by filing the certifcate of candidacy and he considered a Filipino citizen. You have
to understand that he was a US citizen not because one of the parent was a US citizen but because
he was born in America by principle of Jus Soli and at the same time he was a Filipino because his
parents are Filipinos. In other words he was enjoying dual citizenship not by his choice but because
of the circumstances of his birth. He was born in America which recognizes Jus Soli to parents
whose laws recognizes only Jus Sanguinis. And thus the SC said in the case of Mercado vs Manzano,
the mere filing of the certificate of Candidacy he made a choice that he is a Filipino Citizen and that
qualifies him because he is a Filipino citizen. take note that his having dual citizenship in this
particular case is not by choice. Unlike if he becomes dual citizen of two countries one of which is
the Philippine citizenship under RA 9225, Aug. 29, 2003. If it was before Aug. 29, 2003 before RA
9225, those who acquire Philippine citizenship by mere filing of the certificate of candidacy applies
only to those who have dual citizenship not by choice. It does not apply to those who are former
natural born citizen who apply and lost it by nauralization in a foreign country. The mere filing will
not reacquire him of his citizenship. There is another requirement, he has to register his oath of
Allegiance with the bureau of immigration or the Civil registrar where you are residing or the civil
registrar of his last residence in the Philippines. I think this one is very interesting for bar
examination purposes especially with the complication of RA 9225. Before you apply frivaldo case,
before RA 9225 apply frivaldo case and the case of Mercado.
Frivaldo vs. Comelec, GR No. 87193, June 23, 1989
Mercado vs. Manzano, 307 SCRA 630- The phrase deal citizenship in RA 7160 must be understood as referring to dual allegiance (especially for naturalized citizens). In
filing a certificate of candidacy, the person with dual citizenship effectively renounces his foreign citizenship. The oath of allegiance contained in the certificate of candidacy
constitution sufficient renunciation of his foreign citizenship.
Political Law First Installment 25
And so let us proceed. As modes of reacquiring citizenship we have by Naturalization or by

Repatriation. so then the issue on where the mere filing of the Certificate of Candidacy would allow
one to automatically acquire his citizenship. Cases in point you have the case of Labo, you have the
case of Frivaldo but most prominent is the case of Frivaldo because eventually that case of Frivaldo,
he ran three times as governor of sorsogon. He had to comply with the requirements of the law as
far registering as far registering his oath of Allegiance. In contrast again to the case of Manzano,
where the mere filing of the certificate of candidacy he is considered to have chosen Philippine
citizenship as his only citizenship. And this because he was enjoying dual citizenship he need not to
register it in order to be conisdered a Filipino citizen. all these cases happened before Aug. 29,
2003.
Now then you remember the case of Valles 6, i have made mentioned the case of Valles. Because
this was just a reiteration of the case of Manazano. In this case of Valles she was born of a Filipino
father who by papers was already an Australian citizen, when she went back to the Philippines she
ran as governor somewhere in Davao, and the disqualification petition was filed against her
because other than the fact the father is already an Australian citizen, she was holding a Foreign
passport as Australian. Later on it was traced that the father was a son of a Filipino father. That
grandfather was a Filipino citizen that would make his father a Filipino citizen. At the time of birth
apparently remained a Filipino citizen before he became an Australian citizen. So at the time of
birth then, the father was a Filipino citizen which would make her a filipino citizen not withstanding
the fact that she was registered as an Australian citizen in Australia. As far as Australia is concern
she is not Filipino but an Australian citizen, but there is no showing as far as the Philippine
Government is concern that she renounced her Filipino citizenship.
Thus the ruling of the SC of the case of Aznar vs the COMELEC, where the SC declared that the
mere fact that you are registered as an Alien in the Bureau of Immigration or your holding an ACR
or your holding a Foreign passport that does not become a conclusive proof that you ave renounced
your citizenship. If you have not renounced your citizenship as far as teh government is concern
you are a filipino citizen.
In so far as the case of Governor Lito Osmena, the father was a Filipino citizen because the father
was the son of the vice president and later the president Sergio Osmena. There is no question the
grandfather was a Filipino otherwise he would not have been the president of the republic. If the
grandfather was Filipino and the son who was lito Osmena must be Filipino Citizen. if the father of
Lito Osmena, then there is no question that he is a Filipino citizen notwithstanding the fact that he
may be registered as a US Citizen or that he is a green card holder does not matter. Because as far
as the Philippine government is concern then he is a Filipino unless he has expressly renounce his
citizenship. Although in america he may be considered a US citizen but as far as the Philippine
government is concern then he is a Filipino citizen. again i repeat the mere fact that you are holding
a foreign passport, is not conclusive (that can still be disputed in other words) proof that he has
renounce his Philippine citizenship. He remains a Filipino citizen. in the case of Valles, she was
considered a Filipino citizen therefore deemed qualified to run for Public office.
Like Manzano, Valles had dual citizenship, that of her father and that of her mother. As far as
Australia is concerned she is Australian and not Filipino as far as the Philippines is concern with
regards to her Fathers citizenship then she is Filipino and not Australian. In which case the mere
filing of her Certificate of Candidacy is considered to have reacquired her Philippine citizenship by
virtue of the case in Manaano.
Exception: RA 9225
You dont apply this to 9225. I repeat you dont apply this to RA 9225. This cases happened before
Aug. 29, 2003. You have the case of Tambunting. The case of Tambunting is citied in the case of
Corodora vs the COMELEC February 19, 2009. What happened? He ran for public office and then his
citizenship was questioned. Whether or not the mere filing of his certificate of Candidacy, he
reacquires his citizenship as Filipino. Take note of the case if tambunting where his father was an
American citizen and Mother was Filipino citizen. only this happened after Aug. 29, 2003, father was
american and mother was Filipino, he ran for public office. The requirement in 9225 is should you
run for public office and you enjoy Philippine citizenship then she must renounce all Foreign
citizenship. She must swear an oath if Allegiance and must execute an affidavit renouncing foreign
citizenship of RA 9225. Take note of the twin requirements. Take note that he is enjoying dual
citizenship not by virtue if 9225, not by choice because the father was American and Mother was
Filipino citizen. SC said in the Corodora case, Corodora v. COMELEC, GR No. 176947, February 19,
6
Valles vs. COMELEC, 337SCRA543-Having a Filipino father at the time of birth makes one a Filipino. Having an Australian passport and an alien certificate of registration
does not constitute and effective renunciation of citizenship and does not militate against the claim of Filipino citizenship.
26
2008- The Supreme Court recently ruled that a natural-born Filipino, who also possesses American
citizenship having been born of an American Father and a Filipino mother, is exempt from the twin
requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign
Citizenship under the Citizenship Retention and Reacquisition Act (RA 9225) before running for
public office. The Supreme Court En Banc held that it has applied the twin requirement to cases
which involve natural-born Filipinos who later became naturalized citizens of another country and
thereafter ran for elective office in the Philippines. In the present case, [private respondent Gustavo
S.] Tambunting, a natural- born Filipino, did not subsequently become a naturalized citizen of
another country because his was dual citizenship by virtue of his birth, father being US citizen and
mother being filipino citizen.. Hence, the twin requirements in RA No. 9225 do not apply to him.
RECAP
Lets recapitulate so we can understand this better. We have explained that in the case of Valles and
Manzano the mere filing of the certificate of candidacy conisdered them to have declared theyre
Filipino citizen and therefore they do need to take their oath of allegiance again and register their
taking oath of allegiance in the civil registry or in the bureau of Immigration or even asking them to
make an oath of affirmation asking them to renounce their foreign citizenship that is not required.
That is also on the assumption that it happened before Aug. 29, 2003 meaning before the
effectivity of RA 9225. When 9225 took effect under the same circumstances, what is the
requirement in order for him to run for public office? The same circumstances where the father in
this case Tambunting is a US citizen and mother a Filipino, in other words enjoying dual citizenship
not pursuant to reacquiring Philippine citizenship but by birth he enjoys dual citizenship. For him to
qualify to run for public office, does he need to renounce or take his oath of allegiance again and
renounce all foreign citizenship? In this case of Corodora, it states, No, it is not required. The mere
filing he decalres himself as a Filipino citizen because he enjoys dual citizenship.
There is another case relating to that, Jacot vs. COMELEC, G.R. No. 179848, November 27, 2008
Mercado case was decided under Section 40 of LGC re dual allegiance, and that time RA 9225 was
not yet enacted. Partly this Jacot case was only after 9225 was enacted. Jacot reacquired his Filipino
citizenship at the same time retained his Foreign citizenship.
In the case of Lopez July 23, 2008 the SC said Valles and Mercado Doctrines do not apply if one
reacquire citizenship under RA 9225 and runs for public office. To comply with provision so Art 25
par 2 of RA 9225, it is necessary that the candidate for public office must state in clear and
unequivocal terms that he is renouncing all foreign citizenship aside from taking his oath of
allegiance.
Lets go back to 9225, one way of reacquiring citizenship is by repatriation. you have many laws on
repatriation. you have RA 8171, you have this recently RA 9225. Prior to that there were other laws.
Under RA 8171, you know what is repatriation, it is simply taking your oath of allegiance and
registering such oath with the civil regisrty where you are residing or in the civil registry where you
last resided before you lost your Philippine citizenship. These were the requirements under
repatriation. Who can avail of repatriation? If Labo was unable to avail repatriation. who can avail of
repatriation under 8171? Those who were maried to foreigners under the 1935 constitution, may
now reacquire their citizenship by repatriation. if you have relatives who want to be Filipinos again,
then they can reacquire their citizenship through repatriation, they need not go into the process of
Naturalization. Those who have served the armed forces of a foreign country and want to become
Filipino citizens again, they can apply for Repatriation. Those who have lost their citizenship through
Political or economic necessity, meaning they have probably applied for naturalizaion in the Foreign
country and become a foreigner there, they can acquire their Filipino citizenship by repatriation
under 8171. The difference however in RA 8171 and RA 9225 once he has reacquired his Filipino
citizenship it is understood that he has given up his foreign citizenship, nothing si mentioned about
that he can retain his Foreign citizenship. And then yu have 9225 this time. Under RA 9225, one
may retain his Filipino citizenship and at the same time apply for foreign citizenship, that is as of
Aug. 29, 2003. If at the time of the effectivity of the law he had already lost his Philippine
citizenship because prior to that he has applied in a foreign country, he can retain that foreign
citizenship and at teh same time reacquire his Filipino citizenship. Now the question there is would
that in effect violate the prohibition in the constitution against dual allegiance?
And that was the issue that was raised in the case of AASJS, its a concerned citizens group, or the
G.R, No. 160869. May 11, 2007
AASJS Member-Hector Gumangan Calilung Vs. The Hon. Simeon Datumanong etc. because of the
question on dual allegiance. They are saying that RA 9225 is unconstitutional because it practically
allows 2 citizenships and therefore would violate dual allegiance. SC said that:
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it It is clear that the intent of the legislature in drafting Rep. Act No. 9225 is to do away the
provision in Commonwealth Act No. 63 which takes away Philippine citizenship from natural-born
Filipino who became naturalized citizens of other countries. What Rep. Act No. 9225 does is allow
dual citizenship to natural-born Filipino citizens who have lost Philippine citizenship by reason of
their naturalization as citizens of a foreign country. On its face, it does not recognize dual
allegiance. By swearing to the supreme authority of the Republic, the person implicitly renounces
his foreign citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed clear out of the problem of
dual allegiance and shifted the burden of confronting the issue of whether or not there is dual
allegiance to the concerned foreign country. What happen to the other citizenship was not made a
concern of Rep. Act No. 9225. xxx To begin with Section 5, Article IV of the constitution is a
declaration of a policy and it is not a self-executing provision. The legislature still has to enact the
law on dual allegiance. In Section 2 and 3 of Rep. Act No. 9225, the farmers were not concerned
with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance
to their countries of origin even after their naturalization. Congress was given a mandate to draft a
law that would set specific parameters of what really constitutes dual allegiance. Until this is done,
it would be premature for the judicial department, including the Supreme Court, to rule on issues
pertaining to dual allegiance.
Some Filipinos who are US citizens are apprehensive in applying the dual citizenship act because
that might be considered by the US as having renounced US citizenship, since they are very strict.
As far as the Philippines is concern no see, no hear. As far as the Philippines is concern you apply
for a Filipino citizen now then you are a Filipino, we dont care if you have retained your US
citizenship.
So then there is a problem if you are considered by the other country as having enjoyed dual
citizenship as far as the Philippines is concern you are a Filipino citizen. implicitly by reacquiring
Philippone citizenship you have given up or renounce foreign citizenship. But then again you can
not do away with this issue when you ran for public office. Because even if you are considered a
filipino the reality is you are still considered a citizen of a Foreign country. You are allowed to retain
it. That is why under sec, 5 of RA 9225, provided for the Philippine citizenship. If you are going to
run for public office there is another requirment that is asked, it is not enough that you take your
oath of allegiance but you must also execute an document expressly renouncing all other foreign
citizenship, otherwise you are disqualified to run for public office. When is the applicable? Only as of
Aug. 29, 2003 otherwise you apply the provisions of the local government code.
On repatriation and on the matter of having dual citizebship. Again you cannot apply this particular
provision on cases involving persons enjoying Dual citizenship by birth. You cannot apply this case.
That is settled in the case of Corrodora. You apply only the twin requirements, the taking of oath of
allegiance and register it to the civil registry and on the matter of renouncing foreign citizenship
only on to persons who have dual citizenship practically because they have retain their foreign
citizenship and at the same time reacuiqred the Philippine citizen. before they are allowed to run for
public office they must submit these 2 papers
Now take note of a similar case De Guzman vs the COMELEC decided to June 19, 2009. There was
the case of Japson vs the COMELEC decided Jan. 19, 2009. Lets first take up the De guzman case,
diba by 9225 you are now a Filipino citizen, you ran for public office you are required to submit
those 2 papers. Certificates of Guzman vs the COMELEC, to allow retention of Citizenship to the
natural born citizen who have lost their citizenship by reason of the lost because of the
Naturalization of a foreign country. After effectivity of the law they become citizens of a foreign
country. The law provides that they are deemed to reacquire or retain their citizenship upon taking
their oath of allegiance. However it must be emphasize that RA 9225, imposes an additional
requirement on those who wish to seek elective public office as follows. Section 5 civil and political
rights and liabilities.
Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:
(2) Those seeking elective public in the Philippines shall meet the qualification for holding
such public office as required by the Constitution and existing laws and, at the time of the
filing of the certificate of candidacy, make a personal and sworn renunciation of any and all
foreign citizenship before any public officer authorized to administer an oath;
The filing of a certificate of candidacy does not ipso facto amount to renounciation of his foreign
citizenship under RA 9225. The rulings in the case of Frivaldo and Mercado because RA 9225
provides for both requirements. So when you are given a case take note of the dates as they are
material to the resolution of the case. Take note again Aug. 29, 2003, prior to that you apply the
Frivaldo or Mercado case. Where one files his certifcate of candidacy, in the case of Mercado, he is
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deemed to have renounce his foreign citizenship. In the case of Frivaldo, not only his taking of Oath
of Allegiance he registers it in the civil registry he is deemed to have renounce his foreign
citizenship. RA 9225 not only dow he have to take his oath of Allegiance and register it, he must
also renounce all his other foreign citizenship in a public document. Once you have reacquired your
citizenship under 9225 you are considered to have your original status as Natural born citizen and
such you enjoy the same civil and political right just like any natural born citizen such as running for
public office. But to run for public office you must first and foremost comply with the requisites in
par 2 sec 5 of RA 9225, second you must qualify to run for that office. Like what? The qualifications
to run for congress. Being a natural born citizen under RA 9225, you also have to be 25 for House of
Reps, a resident of the Philippines for at least one year.
No Residency Requirement under RA 9225
How can you comply with the residency if you are in America? You were born in America, you
practically lived in America and you just come back to the Philippines and apply dual citizenship
and run for Congress. Would you qualify? This is also without prejudice to you having all the
qualifications provided by law in order to run for that public office. And by residency we mean
Domicile, we go back to the Marcos case vs COMELEC, or AQUINO vs COMELEC. If you comply with
the residency then you qualify, this is now the case of Japzon vs the COMELEC, Jan. 19 , 2009. In
this case Ty, somewhere in Leyte he ran as mayor. And there was a question on his qualification. He
was saying that he already renounce his foreign citizenship when he filed his certificate of
candidacy but that was never an issue. The issue there was did he have the qualifications to run for
that office where in it requires a residency of at least one year. The SC said in this case that it bears
to point out that in RA 9225 commence the manner where a natural born reacquires or retains his
natural born citizenship despite acquiring his foreign citizenship and provides for his rights and
liabilities under such circumstances. A closer scrutiny of such statute would reveal that it does not
at all on the matter of residence of the natural born Filipino taking advantage of its provision. RA
9225 involves no residency requirement for the reacquisition and retention of Philippine citizenship.
On the current residence of the concerned natural born Filipino, clearly RA 9925 treats citizenship
independent of residence. This is in line with the intent of the law to allow for dual citizenship. Since
a natural born Filipino can have both a natural born citizenship and foreign citizenship, he may
establish residence in the Philippines or in the foreign country of which he is also a citizen.
residency in the Philippines of the filipino dual citizen becomes relevant if such person decides to
run for public office. Under RA 9225, to run for public office he must meet the qualifications of the
constitution and existing laws and he makes a personal sworn declaration renouncing any and all
foreign citizenship before any public office authorize to administer an oath. In this case Ty was
considered to have the qualifications. Because apparently before he left for America he has
establish his residency or domicile in the Philippines when he went back to America and went back
again. We must follow the principle of domicile, where there is animus revertendi, intention to come
back to the Philippines notwithstanding he has left here for so long, they made mention of the
Marcos case, where if you wish to change your domicile there must be a bonafide intent to abandon
the olde residence with the corresponding act transferring his place of residence to the new place
trying to hold that residence. You go by the Requirements of residency if he has complied with it
then he is qualified.
Take note that this is not only relevant in Political Law but also in election laws on qualification of
candidates and even on laws of Public corporations on local governments. You have cases and
principles as a group, Frivaldo and Mercado that does not require renunciation and then you have
RA 9225. Which involves cases like this case of De Guzman which was decided on June 19, 2009.
Valles case, Manzano and Corodora cases are similar. Frivaldo the requirement is different, but just
like Valles and Manzano it does not require renunciation. In Frivaldo, mere filing of certificate of
candidacy is not enough he needs to register but he does not need to renounce expresly other
foreign citizenship. Manzano mere filing of certificate of candidacy is considered to have renounce
his foreign citizenship. Whats the difference? In the case of Manazano he Enjoys dual citizenship
not by choice in the case of Frivaldo he has lost his Philippine citizenship and reacquired it not just
by certifying the certifcate of candidacy, that is not the requirement under the law PD 725, there is
also the requirement of registration. RA 9225 you have to take your oath of Allegiance and make a
renunciation. Not to mention that you also have that qualification to hold that public office under
the constitution or existing laws.
Effect of Repatriation and Naturalization
What is the consequence of Repatriation? you reacquire your citizenship. Reckoned from when? At
the time, of the filing of your application for repatriation and for naturalization reckoned from the
time of approval. So meaning if you file your certificate of candidacy now and the approval came
only after you are elected. Are you qualified before you took your oath of office that is after the
election you were repatriated. Are you qualified? The answer is yes because it is reckoned at the
time of the filing. In Naturalization reckoned from the time it was approved. In other words it
retroacts from the time of the filing and you reacquire your original status as a natural born citizen.
Take note that RA 9225 even applies to the spouse and unmarried children less than 18 years of
age including adopted children. There are considered natural born citizen by derivative citizenship.
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So for example I am a Filipino citzen natural born and i go to America and become a US Citizen. i
come back to the Philippines and reacquire through RA 9225, I become again a Natural born
citizen, my children under 18 who are unmarried shall likewise become natural born citizen.
In international law, since you also apply this in private international law, what will happen now if
there will be a conflict since you are a citizen of both countries and there is a conflict of laws. How
are you treated as a citizen of the Philippines or a citizen of a Foreign country which are in conflict
with each others laws. Take note of teh case of Nottebohm. This is under the Effective Nationality
Principle. Nottebohm is a person, he is a German. He was a citizen of Germany which was at war
with Guatemala where he was staying for more than 30 years. Guatemale tried to forfeit all the
properties of Nottebohm. Nottebohm was a bussinessman. Apparently in a case filed by guatemala
to Germany, Germany lost and was ordered to pay compesation to Guatemala. What Nottebohm did
was to avoid his properties being forfeited in favor fo Guatemala. He applied for Naturalization in a
neutral state called Lichenstein. He is a citizen of Germany and Lichenstein, a neutral state and the
enemy state of guatemala. If he was citizen of Germany the his properties would be liable to
Guatemala, and guatemala can forfeit his properties. If he was a citizen of this Neutral state then
Guatemala cannot attach his properties in Germany. The question here is since he has dual
citizenship, which law will you apply? How will you treat him? Is he a citizen of Germany? Or a
Citizen of this neutral state? Of course Nottebohm would like to be treated as citizen of the Neutral
state so his properties will not be taken by the Guatemalan government. But if you were Guatemala
you would consider him a German citizen. so this reach the international court of justice.
This was the decision of the ICJ applying the effective nationality principle to those enjoying dual
citizenship.
The Nottebohm case 7cited by the petitioner invoked the international law principle of effective
nationality which is clearly not applicable to the case at bar. This principle is expressed in Article 5
of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: Art. 5. Within a third
State a person having more than one nationality shall be treated as if he had only one. Without
prejudice to the application of its law in matters of personal status and of any convention if force, a
third State shall, of the nationalities which any such person possesses, recognize exclusively in its
territory either the nationality of the country in which he is habitually and principally resident or the
nationality of the country with which in the circumstances he appears to be in fact most closely
connected.
You cannot apply Germany as his nationality in this case because he was a resident of Guatemala.
So it was either habitual residency or where he is closely connected with. Nottebohm was a German
by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in
Liechtenstein one month before the outbreak of World War II. Many members of his family and his
business interest were in Germany. In 1934, Guatemala, which had declared war on Germany,
arrested Nottebohm and confiscated all his properties on the ground that he was a German
national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The
International Court of Justice held Nottebohm to be still a national of Germany, with which he was
more closely connected than with Liechtenstein.
The basis could either be because he is a habitually resident of the place or because he is closely
connected with. By national, by blood he is German. His family lives in Germany, he has his
business interest still in Germany in which are not the circumstances in his neutral state.
Dual allegiance is not the same as Dual citizenship
Last Point, on dual citizenship again, it is not synonymous with dual allegiance. There is no law pass
by congress defining what Dual Allegiance is therefore it is not with the SC to define what is dual
allegiance. The thing is under the Local Government Code which mention Dual citizenship being
synonmous to dual allegiance, it must be understood that it is merely dual citizenship and shall be
dealt with accordingly by law. It could be a ground for Disqualification to run for public office or if he
holds office it could be a ground for dismissal in an office. That is to protect the security of the State
or the sovereignty the territory of the country.
Right to Suffrage
Nottebohm was a German by birth but a resident of Guatemala or 34 years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak
of World War II. Many members of his family and his business interest were in Germany. In 1934, Guatemala, which had declared war on Germany, arrested Nottebohm and
confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The
International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein.
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Related to citizenship is your Right of suffrage. Or your rights relating to election either to run for
public office or to vote. You have the qualifications there. You have the minimum qualification which
cannot be substantially ammended by ordinary legislation. So basically what are the qualifications?
Just go over, you have to be 18 years, not an insane person, you must be a resident of the place
one year / six months in the place residing. You take note of Residency in relation to 9225. Because
in 9225 it states that you become a Filipino citizen or you retain your filipino citizenship at the time
of filing. Can you vote? Of course you can because you are a citizen of the Philippines. The question
there is are you qualified to vote because the constitution states that you have to be a resident in
the Philippines. Take note that you have to understand that RA 9225, in relation to another law that
is 9189 on absentee voting. In RA 9189, it allows absentee voting. Who can vote under absentee
voting? Those who are in the Philippines, qualified voters who can not vote in their place of
residence or where he is registered. Maybe because of his job, he is a member of the Armed forces,
he must serve in Maguindano. So he may be allowed to vote under absentee voting. He did not
need to go out of his country to avail of absentee voting. The other grouo is because they are
abroad, either because of his work, or because he is a resident of a foreign country and he is a
citizen of the country under RA 9225.
Case in point Lewis vs. Comelec 8, she is a Multi millionaire. She got married to an american Citizen
and became very very rich. She reacquired her citizenhsip and became a Filipino citizen again.
When she went to the consular office she was not allowed to vote. She did not take it sitting down,
she went to the SC and question the refusal for her availing of her right of suffrage. What did the SC
say on the matter, this was decided on August 4, 2006. There is no provision in the dual citizenship
law R.A. 9225 requiring duals to actually establish residence and physically stay in the
Philippines first before they can exercise their right to vote. On the country, R.A. 9225, in implicit
acknowledgment that duals are most likely non-residents, grants under its Section 5(1) the same
right of suffrage as that granted an absentee voter under R.A. 9189 (election for president, v-pres.,
senators and partylist). It cannot be overemphasized that R.A. 9189 aims, in essence, to
enfranchise as much as possible all overseas Filipinos who, save for the residency requirements
exacted of an ordinary voter under ordinary conditions, are qualified to vote.
Again you have to make a distinction. No Residency is required for those who reacquired or retain
their citizenship under RA 9225 for purposes of voting because what you would apply is RA 9189.
But residency is relevant for purposes of running for public office because you have specific
qualifications provided by the cosntitution or the law. Liek the LGC for example on the qualification
on residency. Do not confuse the residency requirement for the purpose of running for office and
the purpose of voting. What you will apply in voting is RA 9189, Absentee Voting and therefore does
not require residency. To run for public office Not only do you renounce your foreign citizenship, you
must also comply with the qualifications to hold public office as provided by the constitution or by
existing laws.
In residency not in the Philippines take note of Makalintal vs. COMELEC on residency. You are
covered by RA 9189 and you want to vote, are you qualified for purposes of residency? July 10,
2003 The interpretation of residence is synonymous to domicile. An absentee remains attached to
his residence in the Philippines, as residence is considered synonymous with domicile. Domicile
means an individuals permanent home or a place to which, whenever absent for business or for
pleasure, one intends to return, and depends on facts and circumstances in the sense that they
disclose intent. There must be a permanent home or a place whenever absent for business or
pleasure one intends to return. What matters is the Animus Revertendi to go back, but then again
depending on the circumstances.
Sovereignty of the State
Another element of the state other than territory and people is the sovereignty of the Sate. It is
very significant because there are many prinicples explaining the principles affecting the citizens
and the state. First and foremost, when you say that the state is Sovereign, what is the
Consequence? How do you know that it is enjoying sovereignty? Because the people pass the laws
and the state impliments it and it enjoys freedom form control. But the more important ones you
should take note note only in Political law but also in public interntational laws are those
manifestations of jurisdiction of teh sate and its immunity from suit.
First lets talk about jurisdiction. The Sate has control over all persons and things found in its
territory and even outside its territory. So we have those principles of Territorial, personal
jurisdiction or extraterritorial or exterritoriality principles. The State has control over person and
things despite of jurisdiction. For persons who are citizens of this cuntry even if outside the territory
8
Lewis vs. Comelec, August 4, 2006

31
of the Philippines, for example they are found in other foreign cuntries still they are subject to the
laws particularly on their status, that is part of the States personal jurisdiction over them. Even
those things or properties found outside the Philippine territory, such as those things or persons
includend found in the embassies outside this country they are still subject to Philippine laws.
Immunity from Suit
But of course all these are not absolute because there are certain Auto-limitations that maybe
provided by the constitution or conventions or treaties. Anyhow, theoretically speaking when we
talk about sovereignty as enjoyed by the state it means that the State is supreme within and
outside. Supposedly there should not be any control over teh acts of the state. Acts maybe private
or public acts. Remember the rules on Juris imperii and Juris Gestionis. On which act the state can
be made accountable and therefore can be sued? Or which act the state cant be held because it is
immune from suit becuase it is enjoying sovereignty. Like the absolute or classical theory on the
enjoyment of sovereignty and the restrictive theory on the enjoyment of sovereignty. Juri imperii are
the public acts of the state and as public acts they cant be questioned by anyone including foreign
states. The acts like making laws cant be questioned. The decisions of the court cant be questioned
by anyone because it is enjyoing sovereignty. The state is not accountable for all those acts by any
other country cant question that. The Juris Gestionis refers to the private acts of the state, because
the state may act privately. Like when the state eneters into contract with private individuals or
foreign nationals. The question there is whether the State is accountable for those acts for which it
has enetered with those private entities under Juris Gestionis? Under the restricitve theory it may
be made accountable for those acts as teh state may be treated as an ordinary person and as such
maybe sued for breach of agreement of contract or damges or whatever. In so far as teh act of
Dominion in the part of the state, is it suable? Under Imperii, dominion is the matter of requiring
properties and as such treated as an individual is considered suable. Imperium are acts of
Sovereignty and as such they are not suable. The rule is because the state is Sovereign it can not
be subjected to any other higher authority. It is supreme. That is why is derived from the owrd
Superanos, the highest Ruling authority. If it is the highest there cannot be an authority higher or
equal to that. If you subject it to suit then you subject it to the authority of the courts. That would
negate its being sovereign, that is basically the reason why it cant be sued. And besides as
theorize, there cant be a legal right as against authority that makes the law on which that right
depends. For this reason the State practically considers the immunity from suit the Royal
prerogative of dishonesty. Even if your claim against the state is valid the state is not liable on the
assumption that the State like the King cant make any mistakes. And for public policy, if we allow
anyone to sue the state, what would happen to the State like in our country where the people file a
case for teh sake of filing. Instead of doing its job, it would be busy entertainign suits at the
instance of any citizen. that we cant allow because that would hinder public service and endanger
public intrest. The rule is under the constitution on the General provision, that state enjoys
immunity from suit because it is sovereign it cant be sued as a general rule except when it gives its
consent. Immunity from suit is alse enjoyed by Foreign states and legal personalities found in the
Philippines and deaing with it are likewise covered because of an agreement convention or treaty
as those are limitations to the enjoyment of sovereignty.
How will you know its a suit against the State?
1. State is party defendant
Going back to the enjoyment of the State to immunity from suit, as i was saying as a general rule
you cant file a suit against the state even if the claim is valid or not. Now the question is this how
do you know that it is a suit against the stae and therefore will not prosper? When the Republic of
the Philippines is named as party defendant then generally it is a suit against the State. Like Juan
Dela Cruz vs the Rep of the Philippines and not PP vs Juan Dela cruz. Should the court immediately
dismiss the case on the ground that the state is immune from suit? Is it enough that the state is
named as party defendant and therefore the case should be dismiss? No, the court must look into
the allegations in the complaint. For what purpose/ for the Purpose of determining whether if this
court would render judgment against the Republic of the Philippines, would this require the state to
disburse public funds in payment of the damages asked for by the plaintiff? Will this mean lost of
government property then in which case that is a suit against the stae and in which case dismiss on
the ground that the state is immune from suit. In other words if it does not involve disbursement of
public funds to answer for prayed for damages or lost of government property even if teh party
defendant is the Republic of the Philippines then it does not necessarily mean that the action will
not prosper. To give you an example the registration of title over a particular parcel of land, before
proof of ownership was merely on the basis of tax declaration, there was still no registration under
the torrens system until we had this land registration act past on 1958 or sometime on that period.
For example you are using or in possession of a property however you dont have any title over the
32
property, what do you do? You apply for registration of title. Or on other words you apply for a title
so that the property will be registered in your name. Who will be the defendant in this case if there
is no other person claiming against your claim into that propert? It would be the reoublic of the
Philippines or any agency representing the Republic of the Philippines. Under the principle of
Regalian doctrine, if no one else will claim the property then it belongs to the state. And besides not
all properties are alienable. There are properties which are considered inalienable such as those
properties, such as forest lands, timberlands, for mining, lands cant eb acquired even if you have
stayed there for hundred of years, because they are inalienable lands they belong to the state. Taht
is usually the reaosn why you make the Rep of the Philippines as party defendant. Things like this if
filed before the court, should the court dismiss it outright because it is a suit against the republic or
the state, so you look into that matter. If i grant the registration of that title, would this mean that
the state would need to pass a law authorizing the disbursement of public funds? Or what does it
mean loss of governent property? Its neither because if it will be proved that the property actually
belongs to the applicant, there is no property that was lost by government because it never belong
to the state. In which case the suit will propser because this is not a suit against the State. That you
should take note as this would be your test. While it is true that ordinarily in a suit against the
State, the state is stated as the party defendant, if it does not necessarily follow then that is a suit
against the State. It is only when those cricumstances i have mentioned that would not allow the
action to prosper because it maybe considered as a suit against the state.
2. Sue Agency of Government
Second instance where it may be considered as a suit against the state, when you sue an agency of
the government. You dont see the state, its an abstract person. What you can see are the edifices
representing the offices , the agencies. If you for instance sue an agency of the government, would
that be considered a suit against the state? Generally speaking yes, it is considered a suit against
the state. The same principle if it would amount to an affirmative act which would be done by the
government which would require the appropriation of public funds to answer the claims or the
damages , the palintiff is asking from the court or it would involve loss of government property. But
you have to make a qualification. What particularly are these agencies of government which are
considered suit against the State?
1. Unincorporated agencies- are those agencies usually performing governmental functions,
such function like execution of the law, keeping peace and order. Basic principle of
governmental or constituent functions, ministrant or proprietary functions, adjudication of
rights and privileges; that is a judicial function. Making laws and defining crimes, that is a
legislative function. These are governmental funcitions. They usually perform governmental
functions. And as such they do not have a separate and distinct personality from the
Republic of the Philippines. If you sue an unicorporated agency it is like suing the Republic
of the Philippines. For example you have the different departments of the exective branch
(DEPED, dep of finance, bureau of immigration, BIR, customs, etc.) if you sue one of these
unincorporated agencies then it is tantamount to suing teh state itself. (congress, AFP,)
Unincorporated Agencies performing governmental functions. In contrast,what are
ministrant or proprietary functions, these are optional functions performed by government.
Meaning functions which maybe engaged in or performed by private entities (like
distribution of water, transportation, insurance) these are usually engaged in by private
companies but because if government does not intrvervene peopel might not live a good
life. The government also engages in the same function (insurance we have PhilHealth, SSS,
GSIS, housing NHA) private but the government engages in such business, those are not
governmental functions. Those are not teh functions exercise by Unincorporated agencies of
the Government. Atake note of the difference as one time it was asked in the ber exam what
is the difference between an agency and an instrumentality. Instrumentality performing
proprietary function, agency performning governmental functions. Not subale if
governmental if proprietary then it is suable. Basically there function is governmental but
there are instances where unincorporated agency may engage in business proprietary
function at teh same time. For example, what is teh function of the Bureau of Customs? It is
the collection of taxes which is an executive function. Remember in one of teh cases the
Bureau if Custims was also engage in the business of Arrastre to facilaitate the performance
of its governmental function. They used to have this private arrastre a stevedoring company
to bring all those objects subject for assessment for taxation purposes. Instead of the private
company doing it they themselves engage in the business. Therefore proprietary because
theu collect fees for that purpose. If in the course of performing that proprietary function, it
caused damage to a client. Can the client sue the bureau of customs? Governmental
function unincorporated but this time engage in proprietary function. This is for profit
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arrastre has nothing to be related with the implimentation of the laws, execution of the laws
or with the interpretation of the laws but is the Bureau of customs suable?
In another case where the PNP an unincorporated agency engage in the business of barber
shop caused damage to the client. Can that client sue the PNP? In one case involving the US
government in camp John Hay, they have this restaurant and one of the chefs got mad, he
put urine in the soup and the US government was sued for that purpose. Will the action
prosper? So the determining factor, is this arrastre bussiness the principal function of the
Bureau of Custom or merely incidental to the performance of a government function? If it is
merely incidental then it is not suable because primarily the function of an unincorporated
agency is governmental. If it is purely business like the PNP engaging in barbering it had
nothing to do with execution of the law. It is not related at all to policy in which case it is
suable. In the case of teh Restaurant the SC said it has nothing to do with the performance
of the governmental function, it is suable.
2. Incorporated agencies of the government- are those government owned and controlled
corporations (GOCC) of the government. Primarily they engage in proprietary functions,
optional functions of the Government. Are they suable? The thing you must first take note is
the charter creating the corporation. Does it allow the Corporation to sue and be sued? Then
if it does then there is no question it can be sued. Some corporations do not have their own
charter. They are govern by the corporation code and the corporation code allows
corporations (they are considered to have legal personalities, they are considered as
persons as fiction of law) to sue and be sued. But then again you have to take note what
was the function exercised from which that suit arose. If it is purely proprietary then it is
suable, still if it is governmental then it might not be sued. Usually they are suable because
they have a separate and distinct personality from the Republic of teh Philippines. Either by
virtue of the charter creating it or by the corporation code which governs it.
3. Municipal corporations- this is hybrid. Because it has dual personality both governmental
and proprietary. Like the city of Cebu it enjoys dual personality. It conisdered a governmental
entity at teh same time it is a corporation excercising proprietary function. It has its own
charter which allows it to sue and be sued then it is suable as a general rule. Except when it
involves disbursement of public funds. Still you have to ask its consent otherwise it cant be
sued. If purely proprietary it is suable. In fact under the LGC it can sued and be sued. Except
when it involves disbursement of public funds you need its consent for disbursement. And
that would require appropriation law. You might be allowed to prove your claim againsta a
muncipal corp but however if it would involve disbursement of public funds, you need
another consent for the disbursement. The basis is teh charter as well as the LGC
3. Suit against Public officers
In what other instance can it be considered a suit against the state? You have public officers of
government. As a general rule if you sue a government official or employee performing a
governmental function then the action will not prosper because it would tantamount as a suit
against the state. That is if it is in the performance of a givernmental function.
But take not of the case of Phil Agila Satellite, inc. vs. Lichauco, Ma7 3, 2006) the
commissioner of NTC before who was sued for damages. She then invoked her immunity
from suit that in the event judgment is rendered upon her, it might involve congress
appropriating funds to answer for the damages given by the court in favor of the
plaintiff. The SC said The hornbook rule is that a suit for acts done in the performance of official
functions against an officer of the government by a private citizen which would result in a charge
against or financial liability to the government must be regarded as a suit against the State itself,
although it has not been formally impleaded.However, government immunity from suit will not
shield the public official being sued if the government no longer has an interest to protect in the
outcome of a suit; or if the liability of the officer is personal because it arises from a tortious act in
the performance of his/her duties. Usually it involves allegation of lack of authority in the
performance of a function or performed in excess of the authority given or it was excercised with
abuse of discretion or in bad faith take note that they are considered not acts of the State and
therefore the action will prosper against the officer in his personal capacity.
You take note again this was taken our of a case involving a DPWH director before, do you
remember the Ministerio case? Where there was the expropriation of a property where you find the
gorordo avenue. That was expropriated without appropriation. So they sued the director of DPWH
because they were not paid. And so the director of DPWH invoked the immunity from suit. And later
it was found out that he had no authority because if he had authority then there would have been
an appropriation for the expropriation of that property. The state invoked immunity from suit saying
that that was not considered an act of the State because he acted without authority. But then again
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by way of exception the SC allowed it because by not allowing the owner of the property to get just
compensation, the owner would be treated unfairly since the property has already been used by the
government and it wont be sued because it is immune from suit. It would cause injustice to the
property owner. Here the owner was allowed to present evidence for the value of his property for
payment of just compensation. If it is an act by a public officer without authority or beyind his
authority or in excess of his authority or excercise in excess of abuse of discretion of his authority or
he acted in bad faith, cannot be considered an act of the state. The Action will prosper and it will be
the personal liability if the government official.
Take note, there is another exception Art. 2180 of the civil code. Acts of special agents even if
tortious acts of special agents. Under Article 2180 the sate has given its consent to be sued for acts
of special agents. Who are special agents? Those who are performing functions foreign from their
regular functions. Whenever they are designated to perform a function different from that which
they are designated, they must perform in accordance to the position they are regularly holding.
For example you are a clerk then you were made into an ambulance driver and you ran over a
pedestrian. Can he sue the State or the government for that? Tortious acts, meaning acts beyond
the authority of this driver. Article 2180 is an exception because the State itself has given its
concept to be sued.
June 19, 2010
Legislative Department
Lets go to article 6. You have mastered what Legislative power is. It is not limited to law making, it
also includes the power to propose ammendments to the constitution, which is what we call as the
constituent power of Congress, part of its legislative power. The power to impose taxes is also a
legislative function of Congress. The power of Congress could either be original or delegated. What
is that power excercise by Congress? It is a delegated power. Why delegated? Because the power
actually came from the people which elected them to be members of Congress, precisely the
principle on what has been delegated cannot in turn be delegated to another delegate. Precizely
because the power of Congress is a delegated power given to them by the people throught the
constitution. And then after their election as memebers of the legislative body.
Exceptions ot the rule on non delegation
Now, there are exception to the non delegation of legislative power. You have to master the
permissble delegation of the power. Some exceptions ot the non delegation or permissble
delegation of the legislative power, the delegation of the president in the excerise of his emergency
power as well as taxing power. What are the constitutional basis? Section 23, art. 6 and section 28
of the same article. We also have the adminsitrative bodies but take note of the limitations. It must
pass the two test both the completeness test and sufficient standard test and it must be at the
impremature of that administrative office. It is simply a case of subordinate legislation. It is only
limited to rule making or law execution rather than law making. We also have ofcourse the LGU s.
Take note of the limitations, it must not be contrary of course, the genereal rule, to existing laws. It
must not be opressive. And its only territorial. And then finally we have the delegation of power to
the people, through inititiative and refernedum. They can either produce statutes or local
legislation. What is that law which delegated the excercise of such power? We have RA 6735. The
power that as excercise by Congress is absolute, the only limitations are those provided for in the
constitution. Substantive limitations like for example, Congress is not supposed to pass a law that
would establish a particular religion. The Congress is prohibted in passing a irrepealable law.
Procedural, that beofe any law to take effect it must eb singend by the president or that it must
apss 3 readings., that is indispensable. Those are some of the delegation.
Power is vested in Congress; exception
Lets go to whom the power is vested. The General rule is that it is the power is vested in Congress
which is bicameral, with reservation to the people. And as mandated under Sec 31 of the same
article, Congress is to pass a law providing for the mechanism on how the people can directly
legislate and we have RA 6735.
Composition of Both Houses
Lets talk about the composition of both houses. The senate has 24. Can that be increase or
decrease by ordinary legislation? The answer is No. but what was that provision by the constitution
that says unless otherwise provided by law, that is refer to the membership or to the mode of
choosing the members to the house of the senate? There is that caveat that unles otherwise
provided by law, does it mean that by law that the membership maybe increase from 24 or more or
it could be reduced from 24 to lower? You take note. In so far as the number of members it is fixed
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by the constitution. In order to change the memebrship you have to ammend the constitution, that
cant eb done by ordinary legislation. The words that say that unless otherwise rpovide by law
refers to the manner of electing or choosing members to the house of the senate. As it is now, how
do you leect members ot the house of the senate? You have nationwide, at-large. Who knwos in the
future they might pass a law, isntead of doing it nationwide we would have it by regional areas. We
have now most of the senators come from Luzon, how about we have it that the 24 be divided that
by luzon, visyas and mindanao. That can be done by ordinary legislation.
Lets go to the House of Representatives. At the house of Rep there are as provided in the
constitution 250 unless otherwise provided by law. Question, can that be increase by ordinary
legislation or reduced by ordinary legislation? Answer is yes. Take note that the membership of the
house of representatives are of two kinds. You have the legislative district representaives and the
Party-list system. First on legislative districts. Take note that as you increase the legislative districts
naturally their would be an the corresponding increase in the membershio coming form the
represntatives of the legislative districts. But take note, who cretaes the legislative districts? Who
apportions the legsilative districts? You remember the case of Monetjo vs the Comelec? Helma
Tobias vs the Comelec?
In the case of Monetejo the creation of Biliran as Province. It used to be a sub province of Leyte and
eventually it was created as a seperate independent province of the province of leyte. As a result
of which some of the municpalities which belong to a legislative district of leyte where remove and
of course consituted one district of the province of Biliran, and therbey affecting those districts
whose constitution has been reduced by the removal of these municipalities. What the COMELEC
did was to take some of those districts and transfer them to those affected by the creation of the
province of Biliran. And so Naturally, it think it was montejo, who complained because apprently it
favored the opponent because the municipalities taken where the bailwicks of his opponent. As
expected they would be electing for his opponent. It reached the SC, the question or the issue is
whether or not the COMELEC can apportion legislative districts. The answer is No, the SC has
emphasized that in the matter if apportionment of legislative districts and creations of legislative
ditricts is a legislative function. Province at least one Legislative district regardles oof population
otherwise if it is not a province but a city for instance but it has a population of 250,000 or more
then they are entitled to legislative districts as well depending on the population. So the basis then
wll be proportionate representation base on the results of the census which is being conducted
every after three years. The puropose ofwhich is to determine whether there is basis for
apportionment of legislative districts or the creation of new legislative districts.
Why i want you guys to take note is the more recent decision of that which is the case of Sema vs
COMELEC9, decided July 16, 2008. Here instead of the COMELEC creating the legislative districts or
apportioning of the legislative districts, they where done by the regionals assembly of the ARMM.
What is the legislative bodey of ARMM? They call it as the Rgional assembly. They created new
legislative districts in the ARMM. So that there were more Congressmen coming from the
autonomous region. Question, is the creation of legislative districts by the regioanl assemblies valid
or constitutional? The SC said inthe case of Sema vs the COMELEC Congress cannot validly
delegate to the ARMM Regional Assembly the power to create legislative districts. The power to
increase the allowable membership in the House of Representative and to reapportion legislative
districts is vested exclusively in Congress.. Take note of the word, EXCLUSIVELY.
PARTYLIST REPRESENTATIVES
Lets go to the partylist, we have RA 7941. This one is kind of difficult because they have change
now as to the matter of membership. They should constitute not more than 20% of the total
membeership. If you increase the number of Legislative district representatives, naturally there
would also be an increase of membership on the partylist system because theirs is 20%.
SEMA VS. COMELEC, G.R. No. 177597, July 16, 2008

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Now, take note Veterans10 and CIBAC11 vs the COMELEC. Remember in order to qualify and to get a
seat in the HR, not only do the partylist organization or sectoral organization or political party ore
represent the marginalizes sector of society must at least get 2% of the total votes cast for the
partylist election. They must get 2% to get a guaranteed seat. In the case of CIBAC, Veterans vs
COMELEC, to get additional seat also you must obtain at least 2% of the total votes cast for the
Partylist. But shall in no case a partylist organization shall have more than 3 seats in the HR. But
you notice that how come there are many Party-list organizations who have been proclaimed to
have been chosen even if they obtain less than 2% of the Total Votes cast for the partylist. You
recall that case of COCOFED which is supposed to be an organization of coconut farmers. For
example COCOFED got only .98 in the last election 2007 less than 2% of the total votes cast for the
Aprtylist representatives, yet it got 1 seat in the HR. Take note also of the Case of TUCP,
Represented by Congressman Mendoza. They got only 1.02 % ang yet they have a seat in the HR.
UTAK, ABAKADA, BANTAY, ANG KASANGGA, BANAT, ANAD, VETERANS, SENIOR CITIZEN, thats less
than 2% of the total votes caste for the Partylist representative and yet they got seat in the HR
representing the partylist system.
Modification in the Banat case
How is that Possible? Because they cases have now been modified or reversed in the case of BANAT
vs COMELEC12 April 21, 2009. The 2% requirement now is only for one to get 1 guarenteed seat ib
the HR. How do you go about in computing now? This is more important nowsince there are more
party-list representaives participating in the elections beacuse of the case of BANAT vs COMELEC.
Even if they get less than 2% they will still ahve the chance if they are included or they still get the
seats after there are available seatsafter the guaranteed seats has been given to those who have
reached more than 2%.
This is how it is being computed. You have to make a list of all Partylist representatives who have
participated in the partylist elections. From the highest to lowest to get the percentage. How do you
get the percentage form highest to Lowest?
Total number of votes obtain by partlist
= percentage
Total number of votes cast for the partylist elections

For example: buhay : 500,000
= percentage
1, 000,000
If he gets 2% then he will have one guaranteed seat.
For example: A org: 400,000; B org: 300,000; Corg: 200,000. D org: 100,000 E org: 50,000
List them from highest to lowest then you compute by the formula
Total number of votes obtain by partlist
= percentage

So 400,000/ 1,000,000= get quotient. If he gets at leats 2% then he gets a guarantted seat
Lets talk about additional seat, the quotient. You have to understand how manys is 20% of Total
membership. Letss assume that the 20% is 20 allocated seats. Which consists of 20%. You deduct
from the 20 seats the guaranteed seats. If there are guaranteed seats of 7 who qualified then 20-
10
Veterans Federation Party vs. COMELEC, 342 SCRA 244, October 6, 2000; Partido Ng Manggagawa vs. COMELEC, March 15, 2006 Section VI 5(2) of Article of the
Constitution is not mandatory. It merely provides a ceiling for the party-list seats in the House of Representatives. The Supreme Court ruled that the Constitution and RA 7941
mandate at least 4 inviolable parameters: (1) the 20% allocation: the combined number of all party-list congressmen shall not exceed 20% of the total membership of the
House of Representatives; (2) the 2% threshold: only those parties garnering a minimum of 2% of the total votes cast for the party list system are qualified to a have seat in
the House; (3) the three seat limit: each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seat, i.e., one qualifying and
two additional; and (4) proportional representation: the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes
11
CIBAC vs. COMELEC, GR No. 172103, April 13, 2007 Applying the Veterans formula in petitioners case we reach the conclusion that CIBAC is not entitled to an
additional seat. Party-List Canvass Report No. 2018 contained in the petition shows that the first party, Bayan Muna, garnered the highest number of votes, that is, a total of
1,203,305 votes. Petitioner CIBAC, on the other hand, received a total of 495, 190 votes. It was proclaimed that the first party, Bayan Muna, was entitled to a maximum of
three (3) seats19 based on June 2, 2004 Resolution No. NBC 04-004 of the COMELEC.
12
-BANAT vs. COMELEC, G.R. No. 179271, April 21, 2009 - 2% threshold in relation to the distribution of additional seats as found in the second clause of Section 11 (b) of
R.A. No. 7941 is declared unconstitutional. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2). Article VI of the
Constitution and prevents the attainment of the the broadest possible representation of party, sectoral or group interest in the House of Representatives.
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7= 13 (remaining available seats). Remaining available seats will be distributed for additional seats.
You go back to the quotient.
The quotient :
(Total number of votes obtain by partlist
= percentage/ quotient

Quotient x remaining available seats+ number of additioanl seats which in no case shall be more
than 3 seats.
For example: 2.4x 13= product must not be fractional or else he is not entitle of less than 1
If after all those who got more than 2% from the additional seat the still remaining seats left will be
distributed among those who participated in the aprtylist election for as long as they are covered by
the remaining available seats. It is what happened in the case of COCOFED it got less than 1 % but
because it is still covered with the remaining 38 seats, they were still covered and they got a seat in
the house of rep. The Idea is as enuciated by the SC is to get the widest or the broadest
representation coming from the Partylist to comply with the 20% allocation of the partylist
organizations to represent in the HR. Otherwise if you also comply 2% of the addtional seats then it
will defeat the purpose because there are less particiaption the partylist election as compared to
legislative district election.
To simply matter, the 2% is only to get a guaranteed seat. The additional seats is only depending on
the availability of remaining seats after deducting the qualifying seats of the aprtylist organization.
Another portion which was emphasized by Banat Vs Comelec, is the issue of whether or not Political
Parties can participate in the Partylist election. The answer to that is Yes. For as long as they have a
counterpart. The counterpart must represent the marginalized sector of society. For example, the
Liberal party, as given an as an exapmple here is a political party, if they want to represent the
marginalized sector. Then they must have a aprty representing such sector. They ahve this liberal
party and kabataang Liberal ng Pilipinas. Through the Kabataang Liberal ng Pilipinas. Still they
represnt a sector. They can still Participate however through theire sectoral organizarion
counterpart.
Take note also of the partylist member, the SC has emphasized that the mandate of the constitution
is to fill-up the 20% allocation and that is the new fromula now. Maybe what is relevant for this Bar
exam is the qualification to be accredited as Partylist. There is a controversy relating to Buhay,
because apparently it is affiliated with El Shadai. Under the Partylist there is a limitation as to the
accreditation of those representing the religous sector.
There is another point of disqualification of Arroyo representing the Trisikad drivers and the Security
guards. Apparently this group is a marginalized group but should you also be a trisikad driver to
represent the marginalized group? There is provision as to qualification of nominees. Because after
all you dont choose the nominee you choose the organization. That is why they are filing a case
because of this. They believed that he odes not represent the sectoral marginalized group.
LPGMA-is also Marginalized. LadLad is also accredited. On qualifications. The only thing that is
always asked in the bar exam is the qualifications of membeers of Congress is on citizenship. This is
so because of the qualification of natural born citizenship. You have to relate this on the provisions
of citizenship. Many of the cases where there is a question whether or not the candidate for the Sen
or HR is qualified is a question on citizenship. But the bottomline there is that he or she is a natural
born citizen.
Residency Requirement
Second, on the issue of residency. That is also an issue as to he qualification of member of
Congress. Two years in the Philippines as far as the Senate is concern and 1 year in so far as the
membeer of the House of Rep in the district he is about to run. Except for the Partylist membeer
that is not a qualification. Take note that in Political Law Domicile is synonymous to residence.
Cases in Point: the cases of Marcos vs COMELEC. That case of Imelda Marcos and the case of Pino
vs COMELEC. In the case of Marcos vs COMELEC, It was base on Domicile of Orgin. After Imelda
Marcos becaem a widow she returned to the Philippines instead of going back to San Juan she went
backto her roots in Leyte. When she files here Certificate of Candidacy. She placed there that she
had jsut arrived form America and had been in Toulosa for nine months. Naturally a petititon for DQ
was filed against her for the requirement of one year residency. And so the issue of whethere or not
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she wasa resident of Leyte otherwise she is disqualified. The Supreme Court qualified that here
domicile of origin was Leyte because she was born in Leyte, in fact she studied in Leyte. When she
became a widow she reacquired her domicle of Origin. Two kinds of Domicile, the Domicile of Choice
and the Domicile of origin. Usually married women goes with the domicle of the husband, where the
Husband goes, the wife goes. Upon the Death of the Spouse, the wife has now the choice whether
to stay with the domicile of the husband in which she ahs chosen as her domicile or the domicle of
her Origin. In this case Imelda Marcos is deemed to have reacquired her domicile of Origin. Even if
she has stayed only for nine months from the time she has arrived, from America, the fact that she
was born then she is considered as resident in the Philippines.
Macalintal vs COMELEC for as long a sthere is the intention to return to the country whenever she si
absent for vacation or leave or employment or whatever then she is considered a resident in the
Place.
In the case of Aquino in reference to should one transfer or change his domicile the act and the
intent must coincide. It must concur. In the case og Aquino, Agapito. He was registered in
Concepcion Tarlac from the Time he ran for the Senate. And then later he cannot run because his
term has already expired hut he still wated to participate, so he changed habitat so he went to
Makati and rente a Condominium. His opponent filed a Disqualification against him. And he was
Disqualified for Lack of Residency because he was a registered voter of Tarlac and he was merely
renting a place in Makati. It does not correspond. His intention to abandon his former registered and
acquiring his new residence did not coincide.
Term of office; interruption in the term of office
Lets go to the term of office which shall be six years but in no case shall be 2 successive terms in
so far as senators. It sahll be 3 years but in no case shall be more than 3 consecutive terms in so
far as the members of the HR. What is imprtant here is the issue of voluntary renunciation.
Voluntary renuciation is not conisdered as an interruption to his term of office. Therefore if he
resigns ,that is voluntary renunciation, at the middle of his term for the Purpose of determining
successiveness opf the term that is not considered an interruption, it is onsidered as a contiunuing
term and it is considerd as if it was not interrupted by his resignation. What if for example he has
six years no interruption but what if on the six years as second term as senator, you were expelled
and you were not able to finsih your term. And therefore that would not be voluntary on your part.
Expelled ka for your disorderly behavior, question can you run in the next election considering that
you have not completed the six year tearm in the seocnd term because of your expulsion? Or you
were suspended for 60 days in your second term or you havened finsished your second term
because of the suspension. Is that an interruption for purposes of determining successiveness of his
term? Is he qualified to run in the next election? Actually third term na. Is he qualified or not? SC
said, precisely, you were expelled or you were suspended because you are still considered a
member of Congress. If you were not considered a member of Congress you could not have been
expelled or suspended. There was no interruption in pther words.
This was the line of argument of Erap Estrada. According to him he did not finish his 6 year term, he
did not resign in which case, his term had been interrupted. His term is six years without reelection.
Without reelection presupposes that he has completed his six year term. In this case he says he did
not resign. In this case he did not finish his term and therefore he is n disqualified with the
prohibition which was no reelection. Voluntray renunciation is in the law itself. This is Eraps line of
argument and there is no case yet pending before the SC because the COMELEC dismiss the
petition disqualifying him. It never reached the SC or the issue has just become moot and
academic. It is possible it can happen again in the future as this should have been settled once and
for all what is without reelection.
Vacancy in both Houses
Lets talk about vacancy occuring in the House. A vacancy of course either in the House of Rep or in
the Senate. How do you fill up the vacancy. First and foremost, the matter of calling a special
election is discretionary for each house. Should they decide to call for a special elections, take note
of RA no. 6645 and the condition precedent to call for a special election, the vacancy occuring must
not be less than 18 months. In the House of representatives it must not be less than 1 year.
Otherwise they should wait for the regular elections. That is all you can take note of now.
Increase of Salaries
Lets go to section 10, salaries of members of Congress. What is important of salaries of members
of Congress i, can it be increased? Yes, but effective only upon the expiration of the full term of all
members of Congress. In other words they have to understand that the senate has Six years and
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the term of office in the HR, they have only 3 years. Even if the term of office of the House of Reps
has laready expired but that of the senate, not yet. Then they have to wait for the six year term of
the Senate who have also approved the increase in the salary before they can enjoy the increase of
the salary. How about if it is a reduction? The law is silent. On the issue of allowances if fixed by
law, what is the limitation? Sky is the limit. Only the conscience is the limit as far as allowances are
concerned. Remember that they worked in committees. Depending on your position as chairman
you get as much, it used to be 200 million as chairman. If you would chair many committees you
will get as much as the amount allocated for the purpose. Travel allowances no limitations. The only
limitation perhaps or put pressure on them limiting these allowances is the liquidation that they
need to do or the recording of these expenses which is accessible to the media. They have the
books of account to be kept by each house. Other than that no limitation.
Priviliges in Congress (Freedom from arrest and the Privilege of Speech)
Freedom from arrest
Lets talk about on the matter of certain privileges. This is important sec. 11. On immunities. The
freedom for arrest and the privilege of speech. On the immunity from arrest. For as long as the
charged is punishable by imprisonment of six years or less. Take note, you cannot be arrested if
your a member of Congress for as long as Congress is in session. Congress and not you. For as long
as Congress is in session and not you in session, because you can be sleeping in your house while
Congress is in session, you cant be arrested, the one arresting you would be arrested for violation of
the RPC for obstructing your participation or representation of your constituents even in your
dreams. What determines is the session and the session of Congress is continuing. Its starts with
the opening of the session on the 4th Monday of July and continoulsy until 30 days before the
opening the next regular session. Not to mention that the special session that the president may
call that is the reason why should you make an arrest because the member of Congress is charged
with an offense punishable by more than six years of imprisonment. You have to or even less than
you have to inform the officers because they might be in session. And it might cause a conflict
between the executive branch and legislative department. Because immunity from arrest is a
privilege, it is more of an exception rather than a general rule.
So you take note of the cases of People vs Jalosjos and the case of Trillanes IV vs Pimentel. You
recall the case of Jalosjos notwithstanding his conviction he was elected as Congressman
representing the legislative district in Dapitan and so he demanded that he be given export so he
can attend session in Congress. In went up to the SC and the SC denied his petition. Because he
was already convicted and the SC emphasized on the fact that the history of provision of immunity
of Congressmen, immunity from arrest and detention shows that the privilege has laways been
granted in restrictive sense rather than as a general rule. And the application of the equal
protection of laws here, what is the difference between a Congressman criminal rapist and an
ordinary criminal rapist? Tht is not in the enforcemnt of our penal laws otherwise it would be a
violation of the equal protection laws.
But Trillanes was saying that Im not in the same boat as Jalosjos as im not convicted yet, the case
is still pending i have the presumption of innocense. That was his line of argument. Because the
same case of Jalosjos was applied in his case when he was denied with his request to be allowed to
attend sessions in the senate. He was charged in the civil court in the RTC for coup de etat, he wa
also charged before the military tribunal. In the Civil court and in the RTC Bail is allowed, and put
tthe bail aftre hearing. In the military tribunal bail is not available, remembeer he was charged with
the violation of the articles of war. Bail is not available. Though he asked to be allowed, he
petitioned the court to attend because according to him he is not yet convicted yet and he still
enjoys the presumption of innocense. But the SC said that the presumption of innocense does not
necessarily carry with it the full enjoyment of civil and political rights. The fatc is you are charged,
you ahve to abide by the rules. Beacuse the immunity from arrest, is applied in the restrictive sense
rather than as a general rule.
Freedom of Speech in Congress
On the freedom of speech, that if you are a member of Congress. You are free to say anything you
want to say under the sun for as long as you are in the halls of Congress and participate in the
deliberation. The immunity extends only to civil meaning you cant be sued for damages because of
your for having destroyed the reputation of any person. And criminal, You cant be charged or
prosecuted through libel. This does not extend however to adminsitrative liabilities. In other words
you can still be charged for disorderly behavior. That is if it would constitute disorderly behavior. You
can still be investigated because the immunity does not extend to administrative liabilities only to
criminal and to civil.
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Another point you should take note is the immunity also extend outside the halls of Congress for as
long as you have made a statement or any of a communicative in nature in the performance of a
legislative function. In other words it might not be through verbal statements made verbally. It may
also be through acts like reports or voting that maybe deregatory against the of another persons
good reputayion. Take note that is included in the immunity and may even extend to the agents of
these members of Congress and the staff who prepared the report are also extended with the
immunity.
JUNE 21, 2010
LEGISLATIVE DEPARTMENT
Just a little review on what we have taken up the last meeting, we were already discussing on the
legislative dept. So basically we identified what is legislative power and where is this vested. And
we explained that primarily the function is vested in Congress except that extent that is reserved to
the people by way of initiative and referendum.
Composition
We also discussed last time guys with regards to the composition of the Congress. We have the
Senate and the House of Representatives divided into two kinds of membership, one we have the
legislative district representatives and we also have the party list. We explained how the members
of the legislative districts are chosen and how these legislative districts are created and
apportioned. Suffice to say guys that you have to remember this in the bar exam that the matter of
apportionment of legislative districts is an exclusive function of congress and that no other
institution, government or any other authority thats the thing that you should remember in so far
as legislative districts are concerned.
Party-list
As regards to the party-list, you must always remember that the representation is not by the
nominees chosen but by the sectoral organizations if not political organizations or associations that
represent a marginalized group in the society.
Also you take note, you revisit the qualifications for accreditations of organizations to become part
of the party-list system. Its a thing that you should also take note.
Another thing is the choice of representation of a party-list to the House of Representatives. Now
the prevailing principles that the total membership of 20% allocated for the party-list should be
filled up. The only requirement of 2% votes based on the votes cast for the party-list elections will
be on to get a guaranteed seat. as to the additional seats just multiply it with the remaining seats
available after deducting the guaranteed seats to which an organization is entitled after obtaining
not less than 2% of the votes cast. Just take note of that. Thats very important.
Members of Congress:
Qualifications, Term of Office, Vacancy
And then we discussed on qualifications more importantly the qualifications on citizenship that
whether he is a senator or a member of the House of Reps he must be a natural born citizen. We
explained what is a natural born citizen. And then of course we have on the matter of residency
which under political law is synonymous to domicile. And then we explained also on the term of
office. The thing that we should take note on this term of office is on the interruption for the
purposes of determining successiveness of the terms of office because there is a limit to the no. of
re-elections that members of Congress are allowed to run. The voluntary renunciation of his office is
not considered an interruption or even if not voluntary such that a member is either expelled or
suspended as member of Congress, take note that is not considered as an interruption. Precisely
suspension or expulsion of the member was made possible because he is still considered a member
of the house concerned during that term. Only that in the meantime suspended or if not he is
already expelled as a member of Congress.
In any case if there is a vacancy occurring either in the house, it is discretionary to call for a special
election. Take note of the constitutional limitation on when to call for a special election in the event
they would decide to call for a special election to fill-up the vacancy. Whoever shall be elected shall
only serve the remaining portion of the term of office of his predecessor.
Privileges of members of Congress
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Another point, we were discussing last time on the privileges of members of Congress. We have
taken clearly the immunities such as the freedom from arrest and of course we have the privilege of
speech. The thing that we should always remember is that these immunities are not general rule or
general rights granted to members of Congress and thus they should be treated in the restrictive
sense. Meaning, under exceptional circumstances. Under what circumstances then a member of
Congress enjoys the immunity from arrest? Only when he is accused okay, not convicted, accused
of a crime where the penalty is 6 yrs or less. Now, for as long as Congress is in session, either in a
regular session or special session, no member of Congress will be arrested or can be arrested. Even
if he is not actually attending the session. It would be a different story if he is charged with an
offense punishable by more than 6 yrs imprisonment. Nonetheless, other courtesy by the executive
branch to the legislative dept, it must be coursed through the officers of each house concerned.
Okay. Then you have to take note of those cases of Pp. vs Jalosjos and the more recent case, the
case of Trillianes vs. Pimentel as to the extent of the enjoyment of the freedom from arrest.
And then of course you have the freedom of speech. We explained, the immunity is only with
respect to the prosecution and punishment for civil or criminal liability. But not in so far as
administrative liability. In other words, therefore this is without prejudice that if the act would also
constitute disorderly behavior on the part of that erring member of the house, he can still be
investigated and prosecuted to determine his administrative liability. Any questions?
Again take note that this is not limited to all utterances that may be made during the session of
Congress within the course of Congress. It applies to all acts that are communicative in nature
which include reports of this member of Congress which may even be the manner of voting, And
even extends to his agents such as his staff. Any problem? For as long as it is made in the
performance or the discharge of a legislative function.
The Journal and the Enrolled Bill
Alright, we also explained last time that there are records that are required to be kept by Congress
and the more important records that you should take note for purposes of the bar exam because
they have been a source of examination, you have on the journal and the enrolled bill. The journal
is required by the constitution to contain specific entries, specific entries. If you can memorize what
are these entries required to be entered in the journal it would be best to know them. In so far as
these entries are concerned, in case it would conflict with other established evidences, you
understand, as far as the court is concerned, as to its probative value, it is conclusive upon the
courts. Whoever shall challenge as to the validity of the entry in the journal as against other
evidence it is for him, it is this challenger okay, he has the burden of proving otherwise what was
stated in the journal because in so far as the court is concerned it is conclusive. Do you follow? It is
binding upon the court out of courtesy accorded to a co-equal branch of government that is
Congress that kept the record which the Constitution requires that those entries should be entered.
Is that understood? Okay, you take note of that.
It would be a different story if now it conflicts with an enrolled bill. What is an enrolled bill? an
enrolled bill, although not required but by tradition, its not required by the Constitution, but by
tradition this has been practice by Congress, before the bill, after it is approved of both houses, is
submitted to the President for approval and for signature, it must be enrolled or engrossed. This is
to prevent insertions of subject matters that were not taken up during the deliberation. Do you
understand, of Congress or to avoid or preventing amending the bill without the knowledge of the
members of both houses. So it will certify that this is the version that was approved by Congress
before it is submitted to the President for signature. Now what is the probative value of the enrolled
bill? It is very important because it would prove the content, the tenor, the wording, the text of the
document, the bill itself. The legislative proposal, the enactment. So if you are to question on the
tenor, the contents of the bill, that enrolled bill is binding upon the courts. It is conclusive upon the
courts. So if there will be a conflict between the journal and the enrolled bill in so far as question on
exactly what was the subject matter of the bill, always the enrolled bill prevailing on the journal. If
you are to question on whether votes were taken and how many votes were taken in passing the
bill, then it would be the journal. So depending on the grounds in questioning the validity of the bill.
if the grounds are those required by the journal to be recorded, required by the Constitution to be
recorded in the journal that's why you're challenging the validity of the bill, then what will be
prevailing as evidence will be the journal. But if the validity as to the content or the tenor of the
legislative proposal itself as against the minutes as it is entered in the journal, always the enrolled
bill prevailing over any records of Congress including the journal. Do u understand? So you have the
case of Subido, you have the case of. Any questions or clarification? And recently you have the case
of Abakada Guro et al. vs. Ermita.
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Okay. Any comment, questions or clarifications? You have mastered that right? So it would be a lot
easier then for the multiple choice. It is a lot easier. Okay. Do you have any questions? Do you have
any clarifications? Is it not interesting and challenging to have multiple choice kind of examination?
Then you would realize after all that it is not that easy. Just imagine that if it would be a bar exam.
Its a lot, a lot difficult than just that exam. Its very easy for you. Especially when you get used to it.
When you have like made that in your memory bank. Thats why I'm keeping the examination
papers. You will get your score but I'm going to keep the examination papers for future reference.
You are very good at reconstituting even examinations of teachers even if you have not taken a
copy. I have learned that. Some years of reconstituting, by the answers they gave. So they
reconstituted, reconstructed in other words, the question of the professors and they are now
keeping a book of past examinations. All the more in multiple choice because more or less you
would be establishing in your memory but because it can not always make you how do you call it?
If it reach 1000 multiple choices, multiple choice items, my god, it would be very difficult so you
have to keep them and then maybe we recycle them in the future. Alright. So you have to be
prudent because instead of learning you would be learning about the subject of how to get hold
copies of them and memorize the answers instead of understanding the subject. That would be too
sad =( and pathetic. Alright. Any questions or clarifications so far on what we have taken guys.
Electoral Tribunals
So we shall continue then from there on the legislative department. This time lets go to the
Electoral Tribunals and the Commission on Appointments. These are two favorite adjuncts of
Congress. Take note that they are considered as extensions of Congress. But actually theyre
independent of Congress. While the members come from Congress but their activity is supposedly
independent of Congress. The only thing is they can not hold session if Congress is not in session.
Coz that besides sometimes they are known to be just simply extensions of the personality of
Congress. Because aside from the fact that the members of both Commission on Appointments and
Electoral Tribunal, except for the justices of the SC, come from Congress. They also hold session
only Congress is in session. Do you understand?
Function; Composition.
So lets talk about Electoral Tribunal. What is its function? Take note that the electoral tribunal is the
sole judge on what? Election contest. What else? Election returns and qualifications of what?
Members of Congress. Okay. Lets talk first on technicalities here. The Electoral Tribunal is
composed of what? Nine members. Right? Is it nine members? You have 3 justices of the SC and 6
coming from each house. Right? And what is the basis? Proportionate representation of political
parties. Take note, proportionate representation. There are 2 Electoral Tribunals therefore. One in
the Senate and one in the House of Reps.
Proportionate representation to the Electoral Tribunal.
Now lets talk about proportionate representation to the Electoral Tribunal. In the Senate for
example, how do you get the proportionate representation? You have the total membership of a
particular political party over the number of members of the Senate. Thats proportional
representation and you multiply it to the allocated seats for the Senate to the Electoral Tribunal. Are
you following what Im saying here? So for example from the, what are now the existing political
parties? Okay lets have Liberal Party. Let us assume that there are 9 from the Liberal Party
divided by, how many members in the Senate? 24 times/multiply by 6. That would be the number
of representatives who shall become members of the Electoral Tribunal representing that political
party. Do you understand what we are talking? Do you understand here guys? Okay thats easy to
compute. Thats very easy to compute.
Our problem is with the House of Representatives because you must note that it has 2 kinds of
members. You have legislative district reps and you have the party-list reps. In so far as legislative
district reps theres no problem because they actually belong to certain political party. And you still
proportionate representation coming from the different political party. Is that clear? Now what about
the party-list? Are they entitled to representation in the Electoral Tribunal? That was the issue raised
in the case Pimentel III vs. the Exec. Sec. They wanted to be represented in the Electoral Tribunal.
But how could they? Especially when they only get less than 3 seats. Im talking about specific
party list organization. Accredited party-list organization. At most probably it gets like 2 seats. Or it
obtains 2 seats or gets 2 seats. Or 3 seats rather at most. Do you follow what Im saying? Will they
be entitled? Because I want you to get a seat. Well the SC dismissed the petition on the ground that
the matter is still premature. Leave it to the house to promulgate rules and regulation. Because
after all the representation is determined by the rules of the house for as long as the Constitution
requirement is followed. What is that Constitution requirement? Proportionate representation from
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the different political parties. So it is possible then that the sectoral representatives may affiliate.
Coalese just so they can be represented in the Electoral Tribunal. They can do that. That depends
on the rules of the House. In the meantime, according to the SC the question of Pimentel is still
premature. But there is no stopping if they have the rules for as long as, according to the SC, the
only, bottom line there is they comply the Constitutional requirement which is proportional
representation.
Membership.
Now another point you should take note on membership, once one is chosen as a member to the
Electoral Tribunal supposedly representing the political party, because after all thats a requirement,
there is the proportion representation, can the political party remove him after? Like in the case
of was it the case of Roquez, after finding out that he voted in favor of an opposing political
party? Can he be removed for reason of disloyalty to the political party? Now once a member is
appointed or chosen rather to the Electoral Tribunal, although he is a member of a political party,
take note, his membership is permanent and he enjoys security of tenure. That is to maintain the
independence of the Electoral Tribunal from Congress or from the political party he comes from.
Take note of that. Any questions or clarifications so far? Do we understand each other in so far as
the membership?
Function.
Alright, lets go now to the function of the Electoral Tribunal. I mentioned all these guys because
those were the very questions on those issues. Okay. But more importantly you should tell the
functions of the Electoral Tribunal. It says sole judge. Therefore exclusive tribunal. If theres any
question pertaining to election contest, returns and qualifications of members of Congress,
exclusive jurisdiction is the Electoral Tribunal. Take note guys that there is no pre-proclamation
contest involving members of Congress as well as the President and Vice-President. You have
mastered your election laws. You dont go to the Comelec to question the validity of the election
return. All the more now its not that difficult how do to question and challenge the election returns.
You dont do that unless as already mentioned by cases decided by the SC if the errors are patently
obvious, on the face of the election return or the certificate of canvass. Then which case you can
call the attention of the Comelec to correct it. Or if you question the constitution of the Board of
Canvassers, you remember that? Constituting the Board of Canvassers that canvass the election
returns. You recall that. Then those are the grounds for you to question in the Comelec. But take
note, as a general rule, there is no pre-proclamation contest involving the members of Congress. So
therefore, if you are to question qualifications of members of an elected candidate, an elected
candidate for Congress, where do you file? Where do you file your election contest? Okay. Let me
erase that question. Who is the member then of Congress? The subject of the election protest. Who
is this member? A member is one who has been validly proclaimed by the Comelec, do you
understand? And has taken his oath of office as member of Congress. Again take note of the words
validly proclaimed by the Congress that duly elected member or the duly elected candidate
Congressman or Senator and that he has sworn, taken his oath of office as member. Then he
becomes a member of the Electoral, I mean Im sorry, of Congress. Alright.
Election Contest.
Lets define our terms. It says that only election contest, election returns and qualifications of
members of Congress. What is an election contest? It involves what? Will there be an election
contest if there is one candidate who ran for that position let us say for that district Congressman
lone candidate? Way kontra. However there is question with his qualifications because theres
allegation that he is not a citizen of the Philippines. Where do you file your case? Does the electoral
tribunal have jurisdiction over that election protest? Is it qualifications, involving qualifications? A
lone candidate. Can you question that? Youre supposed to question that at the time of filing of the
certificate of candidacy. Now assuming that that has been not in question, can you then file a case
in the Electoral Tribunal? When you say election contest or you say for example there was massive
vote buying notwithstanding that he is the lone candidate. Can you file a case in the Electoral
Tribunal? Thats the question.
When we speak of election contest? Do you understand what I am asking you? Hmmm is there an
election contest there? An election contest is when? Whats an election contest guys? By the way,
what kinds of cases that you may file with the Electoral Tribunal? Say you only file what? Election
protest and quo warranto. Petitions for quo warranto and election contest. So when you speak of
election contest, it presupposes what? That there are 2 contesting parties. One who won the other
one who was defeated. The purpose of the filing of the petition for election contest or quo warranto,
whats the purpose of the one who lost? To oust, di ba, the one who was elected or proclaimed to
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have been duly elected. And for you not only just to oust or remove him from office but also for you
to replace the person.
Its basically, what we meant by election contest. So that if there is a lone candidate, you have that
case involving that Congressman in Leyte, Samar? Who is this? Who is this Samar second
district Daza. Singson vs. Daza. I think its the case of Singson vs. Daza. There was a question on
his qualifications. Okay. Does Electoral Tribunal have jurisdiction over a petition for the removal
because there is no pre-proclamation contest? So you go directly to the Electoral Tribunal which has
exclusive jurisdiction over members of Congress in so far as their election and as well as
qualifications. What happened here? The SC said Electoral Tribunal can not acquire or assume
jurisdiction over the petition because there is no contest. So where do you file? It would be filed
with the House concerned. And the exclusion proceedings to preserve the integrity of Congress
especially of the House concerned. It is for the the Congress may prevent or defer the
proclamation of a particular candidate until after his qualifications shall have been resolved. Or if
not, if he has already been proclaimed, to exclude him or expel him after finding that he is not
disqualified.
Now we talk about members of Congress is one whos been declared or validly proclaimed by the
Comelec and then thereafter took his oath of office. Now again. So you should understand because
when is the Comelec jurisdiction ends and when does the Electoral Tribunal jurisdiction starts? Do
you understand what we are saying here? There are actually 2 cases that we need to take note. The
case of De venecia vs. Comelec, Im sorry, Codilla vs. De Venecia and that case of Limkaichong vs.
Comelec. You recall what happened on the case of Codilla. Codilla was disqualified even before the
election. Allegedly because he got involved in violations with election laws pertaining to conducting
infrastructures or not really infrastructures, projects okay during the election period. Because he
was then an incumbent. Partly he bought sand and gravel during the election period, it was
considered as electioneering and so he was disqualified. Because of his disqualification, all his votes
were not counted. And so because his votes were not counted, practically it was Locsin who was the
lone candidate of that particular district and she then was proclaimed. But take note that before she
was proclaimed, there was a motion for recon that was filed by Codilla. While that motion for recon
was pending with the Comelec, Locsin was proclaimed by the Comelec and after the proclamation
she took her oath of office, she or he? I think she. Took her oath of office and became a member of
Congress. Now what happened thereafter? The motion for recon of Codilla on the other hand was
favorably resolved. Meaning he was then, the Comelec was saying that he is qualified. In other
words his disqualifications was set aside and therefore his votes should be counted. So upon
counting the votes, he won over Locsin. And so he was proclaimed by the Comelec. Now there are 2
candidates proclaimed. Locsin and Codilla. What Codilla did was to go to De Venecia and asked that
he be proclaimed because he was the one proclaimed by the Comelec. De Venecia however was
saying No I cant do that. File first a petition for quo warranto to recover the office from Locsin.
And where do you file this? According to De Venecia you should file it to the Electoral Tribunal. Are
you following here? Question, is De Venecia correct in this case? Is he correct? Take note of the
proclamation. Was the proclamation then of Locsin valid? Was the Comelec divested of jurisdiction
upon proclamation of Locsin and after her taking of oath of office? SC said considering that there
was a timely filing of a motion for recon, the proclamation of Locsin was premature. And therefore,
it was invalid. And because the Comelec because the motion for recon, Comelec has not yet been
divested of jurisdiction over the case that was filed by Codilla, the motion for recon that was filed by
Codilla. And in which case the proclamation of Locsin was premature. And the proclamation of
Codilla as valid. So in which case the Comelec still has jurisdiction. So in other words, if one has to
take oath of office and for the Electoral Tribunal to assume jurisdiction over contest relating to the
election of that member, there has first to be a valid proclamation.
Now what happened in the case of Limkaichong? You recall the case of Limkaichong which is a more
recent decision of the SC. In the case of Limkaichong, it was the beginning of the filing of the
certificate of candidacy that a petition for a disqualification was filed against her on the ground that
she is not a citizen, a natural born citizen of the Philippines because the proceedings of
naturalization/ naturalization proceedings of her father were invalid, you recall that guys? Do you
remember that? I think that was dismissed and then a motion for recon was filed by the Balas
group. The opponent, the opposing party of Limkaichong. Now while the case was still pending,
what happened? Di ba election proceeded and in that election Limkaichong won. So because she
won, she was proclaimed. However, they are saying that she can not be proclaimed because there
is still a pending motion for reconsideration just like in the case of Codilla vs. De Venecia. There is
still a pending motion for reconsideration. Any proclamation is still premature.
But take note of the difference. In the case of De Venecia/Codilla and Limkaichong. In this case
however of Limkaichong vs. Comelec that was decided April 1, 2009, Comelec has passed a
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resolution. There was resolution that was passed declaring all those who won in the election,
notwithstanding the pendency of motion for disqualification against them should be proclaimed.
Because it might just be fit that the choice of the people of that candidate. In other words, unlike in
the case of De Venecia there is no such resolution of the Comelec. Okay. In this case of Limkaichong
there was that resolution of Comelec declaring what is this resolution just to give you an idea
declaring that notwithstanding the pendency of the disqualification case proclamation may
proceed. Do you understand what we are talking here guys? I dont have the number but I have it
somewhere here in my notes. The thing is that notwithstanding the pendency of a motion for recon
because Limkaichong won in the election, she was proclaimed by the Comelec pursuant to that
resolution that was passed. And so there was a question whether or not the Comelec has that
power to pass resolution. That was also one of the issues raised in the case of Limkaichong.
First and foremost the SC said thats part of the powers granted to the Comelec. It is not only
exercising quasi-judicial functions but as well as quasi-legislative functions to enforce or to
promulgate rules and regulation in order to ensure that there will be orderly, honest elections. In
other words it was issued in the exercise of the powers of the Comelec and so for that resolution
was upheld as to its validity by the SC. In this case therefore of Limkaichong, at the time of the
proclamation there is that resolution of Comelec allowing proclamation notwithstanding pendency
of motions for reconsiderations or disqualification cases against a candidate. There is however a
condition there is subject to final resolution of the proper tribunal. Who will be the proper tribunal
now? Now that this Limkaichong was proclaimed and has taken her oath of office. Is it the Comelec
still or is it now the Electoral Tribunal? This has not been asked in the bar examination yet. I
surmised that if not be asked, if not this bar exam it would be in your time, if it is not asked in this
bar exam. That was too late already of lat year because this was only decided April 7, 2009. So this
is very interesting because this is like a modification in that case of Codilla.
The only difference in between Codilla case in this Limkaichong, there was no resolution of the
Comelec allowing the proclamation notwithstanding the pendency of a motion for reconsideration.
So when the proclamation was made in the case of Limkaichong, the Comelec was practically
divested of jurisdiction over the disqualification case filed against Limkaichong. and so therefore
she because has taken her oath of office already, then the proper tribunal who shall have
jurisdiction over questions of qualification of Limkaichong will now be in the Electoral Tribunal. In
fact this caused the controversy di ba that led to the dismissal, not dismissal, the sanction of Justice
Ruben Reyes of the SC. You recall that because after the motion for reconsideration was denied,
they wanted to stop the proclamation. They went all the way to the SC on certiorari. And they were
saying that the SC just sat on their petition because they were asking for injunction to stop the
proclamation and the taking of oath of office of Limkaichong. You recall that because apparently
there was a leakage of the decision even before it was promulgated. and they later found out that it
came from a member of the SC who has a ponente of that case and so as a result of which I think
Justice Reyes was not only disbarred but he was penalized a fine of 500,000 of his retirement
benefits. Thats how also confidential the deliberations of the SC that we explained before. You
should know the difference then between these cases of Codilla and Limkaichong.
Okay. Suffice to say guys that for Electoral Tribunal to assume jurisdiction over any contest
involving a member of Congress, there has to be a valid proclamation by the Comelec and for this
member to take his oath of office. And then he would be considered as a member. Once he
becomes a member, the Comelec is divested of jurisdiction over all matters relating to
qualifications. And then it will now be for the Electoral Tribunal to assume exclusive jurisdiction over
that petition. Is that understood? Now then there is also a definition of what is election returns or
qualifications. I want you to read the case of Barbers vs. Comelec June 22, 2005, where the SC has
defined the terms election, returns and qualification. It said it should be interpreted in its totality as
referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify
you can say that Election refers to the conduct of the polls including the listing of voters, the
holding of electoral campaign and the casting and counting of votes. That would be your election.
Returns refer 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 election returns and
qualifications 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 certificate of candidacy. Those
are the definitions of the terms within the exclusive jurisdiction of the Electoral Tribunal.
In the case of Abubakr vs. HRET, this was decided on March 7, 2007, the SC jurisdiction to review
decisions, by the way, of the Electoral Tribunal because exclusive man ang jurisdiction. In the event
that a decision is reached, where do you appeal? Is it appealable? Are the decisions of the Electoral
Tribunal appealable? Answer is NO. Its final and executory except when there is allegation of abuse
of discretion amounting to lack or in excess of jurisdiction. Thats the case of Abubakr. The SC said,
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SC's jurisdiction to review decisions and resolutions of the HRET operates only upon a showing of
grave abuse of discretion on the part of the tribunal tantamount to lack or excess of jurisdiction.
Such grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to
lack of jurisdiction or arbitrary and despotic exercise of power because of passion or personal
hostility. The grave abuse of discretion must be so patent and gross as to amount to an evasion or
refusal to perform a duty enjoined by law. Now in this case of Abukakr, the SC is saying it is absent
in this case. Apparently very difficult to determine when indeed the Electoral Tribunal has abuse its
discretion considering that measurement.
Then you have the case of Pimentel III, the son of Aquilino Pimentel Jr., against the Comelec.
Remember in the last election that was 2007, he almost got elected where it not for the
Maguindanao results. And so they accused Zubiri and the members of the Comelec there in that
region to have rigged the election under dagdag-bawas. You recall that? And so they wanted to get
all the election returns and then Bidol, remember Bidol failed to submit the election returns saying
that they were lost and thats all that he can say. He can not explain how they got lost and he say '
hey they got lost'. Okay and so here, Pimentel wanted for the Comelec to look into those election
returns. Now take note what happened to this case. Because it was denied by the Comelec, the
Comelec was saying 'No we cant do that. It is beyond; we don't have any jurisdiction over that.' But
Pimentel was insisting that it's still administrative of the Comelec within the power of the Comelec
to compel the Comelec of this region to submit the election returns and the certificate of canvass
etc and the ballots as well. But the Comelec said its a pre-proc thing, you can always ask that in
the Electoral Tribunal. We don't have any jurisdiction and so Pimentel went to the SC. They wanted
to ask for a mandamus/ writ of mandamus to compel the Comelec to direct the regional office to
submit them. What did the SC said, say in the matter? This was on March 30, 2008. It is the Senate
Electoral Tribunal which has exclusive jurisdiction because then you recall Zubiri was already
proclaimed and sworn as member of the Senate. To act on the complaint of Pimentel involving as it
does a contest relating to the election of Zubiri now a member of the Senate. Just take note that if
theres any question on the jurisdiction of the Electoral Tribunal, that would be on the cases
whether or not it has jurisdiction over the petition. Would it be the Comelec or should it be the
Electoral Tribunal.
Commission on Appointments
Lets now go to the Commission on Appointments guys. Another body there in the Congress. What
is the function of the Commission on Appointments? Basically to confirm and affirm nominations
made by the President. Particularly, take note, memorize Sec 4 of Article 7. What are those
positions in government that require confirmation by the Commission on Appointments otherwise
those appointments are invalid or if not they only act as heads of those departments and not
considered as regular members? What are those positions in the first place? You have to memorize
them.
First and foremost you have the heads of the Executive department. Okay. Who else? You have the
officers of the AFP. I think the more controversial one is the officers of the AFP now that there are so
many appointments that have not been acted upon by the Commission on Appointments in
Congress until they dismiss. Okay. Who are these officers of AFP? The ranks ranging from army, col
full col na siya because there are diff types of Colonel in the military. Colonel to the General. And in
the navy from Captain to Admiral.
How about the Phil. Coastguard? How about the promotions of the Phil Coastguards? Are they
subject to the confirmation by the Commission on Appointments? How about members of the PNP?
Take note, they used to be part of the AFP. The coastguards is under the navy. You recall? But just
recently they are placed under the supervision DOTC. Now civilian. Their appointments and
promotions take note, do not anymore pass through the Commission on Appointments for
confirmation. Because the matter of confirmation of members of the AFP, very clear, AFP, the
military, thats exclusive. So it is already a civilian entity. That will not pass through anymore the
Commission on Appointments. Including the PNP. So just take note of these 2 in so far as military
officers that require confirmation from the Commission on Appointments. The PNP and the Phil
Coastguards.
How about the Bureau of Penology? They bare arms too. Theyre excluded as well because they are
not members of the AFP. How about the Bureau of Fire? They bare arms too. They are not part of the
AFP.
Who else whose appointments require by the Commission on Appointments? You have the
ambassadors, consuls and other public ministers and such those officers whose appointment are
vested by Constitution or by law to the President. What are these appointments? You have
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members and chairman of the COMELEC, the Civil Service Commission, and the Commission on
Audit. How about CHR? Not included. How about Commission on Immigration and Deportation? Not
included.
How about Bureau of Customs? Not included. NLRC. Not included. What is not included is deemed
to be excluded. That is exclusive. All these can not by legislation expand or reduce the list of
appointments.
Who else are subject to the confirmation? The regular members of the Judicial and Bar Council. Who
are the regular members of the Judicial and Bar Council? A rep from the IBP, a private rep, a retired
justice of the SC and a professor or rep of the academe. Only these 4. All the rest are subject to the
power of the President to appoint because by nature the appointment power is vested in the
President.
Process of the appointments.
Lets take note of the process of the appointments before the confirmation because this will matter
later when the appointment will took effect. It depends on when was the nomination made, regular
or recess appointment. Take note of the process. If there is the nomination then it is submitted to
Commission on Appointments and the Commission on Appointments either denied or granted it. If it
is granted a commission is issued and then that particular public officer takes his oath of office by
way of accepting or a manifestation of acceptance.
Lets talk about nomination. If it is a regular appointment, when is this issued by the Pres? It is
issued by the Pres when the Congress is in session. How many days or months is given to the
Commission on Appointments within which to act on the nomination made by the Pres? Within 30
days. What will happen if it is not acted upon by the Commission on Appointments? It is deemed
bypassed. So what is the effect if bypassed? What happen to the appointment? Can he go back to
his old position? YES. Because the appointment takes effect only upon confirmation by the
Commission on Appointments. So you can still go back. If he were an USec. Before he were
appointed as Sec, then he can always go back as USec. Or he remain as acting Sec. Can he be
renominated by the Pres? YES because there is no denial or disapproval yet of his appointment. You
recall the appointment of Benipayo? Benipayo was bypassed several times. Notwithstanding, the
Pres continued to nominate him. It was an ad interim appointment. Because the concept is
appointment. Under the Constitution, if you are a member of the COMELEC it is without
reappointment. You can be appointed for a specific term however without reappointment. In the
case of Benipayo as chairman of the COMELEC, he was nominated by the Pres however it was never
confirmed. Benipayo was appointed during recess. Unlike in a regular appointment, it takes effect
immediately. Not upon confirmation. However the appointment although permanent, it would last
only until the next adjournment of Congress if not confirmed. Benipayos appointment was not
confirmed so it is understood that it expired upon the adjournment of the next session of Congress.
What the Pres did was to reappointment him. Was there a violation of the Constitution that prohibits
reappointment of Commissioners of COMELEC, COA and the CSC? The SC said there was no
violation because the reappointment there applies only to regular appointment that requires
confirmation for it to be effective. In the case of Benipayo he was appointed while Congress was in
recess and thus the appointment becomes immediately effective upon qualification of that
appointee and was permanent.
The appointments if regular, for it to be effective, it must be confirmed by Commission on
Appointments. Effectivity is reckoned from the time of confirmation. Once it is disapproved, then he
can not be renominated anymore. Bypassed still can be renominated. In so far as ad interim
appointments are concerned, effective immediately upon qualification of the appointee and the
appointment is permanent. However, limited only, if not confirmed, upon resumption of session of
Congress or of Commission on Appointments. It will only last until the next adjournment of
Congress. Can he still be renominated upon expiration by operation of law, upon adjournment of the
next session of Congress? YES he can still be renominated for the same position.
Remember the case of Benipayo. This was decided in 2005 yet, the case of Pimentel against the
office of the Executive Sec. This was at the beginning of the term of office of then Arroyo as Pres
after Estrada. She made acting appointments and refuse to submit the appointments to the CA for
confirmation and it was questioned by Pimentel considering that they were heads of Executive
departments. SC said, for acting appointments made by the Pres, she/he is not compelled to submit
the same to the CA for confirmation. The law allows the Pres to make such acting appointment. The
Pres may even appoint in acting capacity a person not yet in the government service as long as the
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Pres deems that person competent. Acting appointment is temporary and in nature it is a staff
intended to fill an office in a limited time until the appointment of a permanent occupant to the
office. In case of vacancy, an office occupant, an alter ego of choice and acting secretary before the
permanent appointment of her choice to assume office. It may be extended anytime there is
vacancy given while Congress is in session. This kind of appointment does not require confirmation
by the Commission on Appointments. Only those permanent appointments would require
confirmation.
Composition.
As regards to the composition of the Commission on Appointments, you have still on proportional
representation of political parties, there would be 24 members. 12 of whom coming from the
Senate. The other 12 from the House of Reps. It would be chaired by the president of the Senate.
Also, unlike in the Electoral Tribunal, the membership in the Commission on Appointments is highly
partisan. Once he ceases to be a member of the political party, automatically, he ceases to be a
member of the CA. The change of political party must be however permanent. So if it is just a
temporary alliance, as they usually do, if they coalese temporarily as one political party, that is not
considered a change of political party affiliation and in which case that would not be a ground to
remove him as member of the Commission on Appointments supposedly representing the political
party.
So those are the subject matters were the basis for bar questions in the past.
Inquiries and Question Hour
Lets go to Sec 21 and 22. Inquiries and Question Hour. These are 2 extrinsic aids for purposes of
legislation. The thing that we should take note on legislative inquiry is it is the power of Congress to
inquire from anybody, may he be a member of cabinet or a govt official or a non-govt official, he
can be compelled by Congress or its Committee to appear before it to answer to queries which may
be of help to the Congress in legislating, in proposing laws/bills for enactment.
First and foremost, the matter of legislative inquiry doesnt matter whether or not there is a
pending bill for legislation. So need not be that theres a pending proposal for legislation in order to
compel a person to appear before the Committee. Just take note on some of the limitations relating
to this.
You have those recent cases involving the executive privilege of the President. The EO 464. That
was the case of Drilon vs. the Exec. Sec and the case of Gudani vs. Senga. On the invocation of the
executive privilege, you have the case of Neri vs. the Senate, Akbayan vs. Aquino- the undersec of
DTI. These are the more recent cases involving the power of Congress of legislative inquiry as it
clash with the invocation of executive privilege by the Pres. As to the basis of the exercise of the
power, you read the case of Drilon vs. the Exec Sec where the SC sustained the power of the Pres.
Its one of its residual powers. It can not be compelled to disclose any info pertaining to the
performance or the discharge of her official function that might undermine her policy making or it
might affect public interest in the discharge of her functions. However, there was a qualification
made in that case. This power is exclusive of the Pres and can not be extended to cabinet member
even if under the Qualified Political Agency Doctrine, they are considered as his/her alter-egos. This
is one of the powers of the Pres that only the Pres enjoys, which cannot be extended to cabinet
members unless the Pres or the Exec Sec on behalf of the Pres invokes executive privilege.
In other words, if the cabinet member is asked to appear before a Committee hearing, can he
refuse to appear and invoke executive privilege? NO. He can still be compelled to appear like the
case of Neri. However, if the President invokes the executive privilege or the Exe Sec by authority of
the Pres, that member of the cabinet may not be compelled to answer queries that may affect the
executive privilege of the Pres.
Take note that there are certain parameters of the invocation of the executive privilege by the Pres
with respect to a cabinet member. This was emphasized in that case of Neri. This was decided of
March 25, 2008. Neri who mentioned about being offered a bribe by the chairman of the COMELEC.
Because of that disclosure, he was then investigated by the Senate and inquiries were made if the
Pres knew about it and what was the action taken by the Pres in which on those questions Neri
refused eventually to answer the queries. He was compelled but refused because according to him
the Exec Sec has already invoked the executive privilege and can not disclose the info. Eventually
this was brought to the SC. He did not anymore appear to the Senate hearing because for him it is
useless to be there and not be able to answer to the queries because of the invocation of the
executive privilege. These prompted the Senate to issue an order for his arrest. So Neri went up to
the SC and ask for an injunction to stop the implementation or the enforcement of the order of
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arrest. In this particular case, SC sustained the arguments of Neri. The SC said in sustaining Neri,
the communications illicited by 3 questions, because there were 3 questions asked of Neri by the
Senate, first, Whether the Pres followed up the NBN project? And the 2 nd question was Were you
dictated to prioritize the ZTE? And the last question was Whether the Pres said to go ahead and
approve the project after being told about the alleged bribe?. According to the SC, these are
covered by the presidential communications privilege.
What are the reasons why they are considered as privileged communication with the Pres?
First, the communications relate to a quintessential non-delegable power of the Pres, that is the
power to enter into an executive agreement with other parties, which is by nature confidential
executive agreements and treaty negotiations. This authority of the Pres to enter into an executive
agreements without the concurrence of legislature has judicially been recognized in Phil
jurisprudence as confidential.
Second, the communications are received by a close advisor of the Pres. Under the operational
proximity test, here Neri can be considered as a close advisor being a member of Pres. Arroyos
cabinet.
And third, there is no adequate showing of a compelling need that will justify the limitation of the
privilege and of the unavailability of the information elsewhere by an appropriate investigating
authority.
In other words, Neri could not be the exclusive source of the information. They can always get then
information from other sources. Those where the reasons why Neri, according to the SC, can not be
compelled to answer to those queries. The decision in the Neri case was reiterated in the case of
Akbayan vs. Aquino. This was decided on July 16, 2008. This has reference to the JPEPA. They
wanted to get a copy of that agreement. Who was asking? Those members of the House of Reps,
the committee on economic trade. They were asking copies from the Usec of DTI. Aquino, who was
then the Usec, refused to give a copy because according to him the treaty is still under negotiation
and therefore covered by the executive privilege of the Pres.
The SC said, applying the principle adopted on the PNPM vs. Manglapus, that the final text of the
JPEPA may not be kept perpetually confidential since there should be ample opportunity for
discussion before it is approved. The offers exchanged by the parties during negotiation continue to
be privileged after JPEPA is published. It is reasonable to conclude that the Japanese representative
submitted their offers with the understanding that historic confidentiality would prevent the same.
Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with
other foreign governments in the future negotiations. Diplomatic negotiations therefore are
recognized as privileged in this jurisdiction. The JPEPA negotiations constituting no exceptions. It
bears emphasis however that such privilege is only presumptive. It is only presumptive. For as
Senate vs. Ermita holds, recognizing a type of information as privilege it does not mean that it will
be considered privilege in all instances. Only after a consideration of the contents in which the
same is made may be determined if there is a public interest that cause for the disclosure of the
desired info strong enough to overcome its traditionally privilege established. In other words, it is
still subject to dispute by whoever claims that it should be a public information that must be
disclosed to the public considering that the people has the right to information on matters of public
concern. You have to balance it with the executive privilege as well depending on the
circumstances. Ultimately, it is for the SC to decide on that issue. Suffice to say that the legislative
inquiry power of the legislature is not absolute. It is subject to such limitations like the invocation of
the executive privilege of the Pres.
How about the matter of immunity of the office from investigation? For example PCGG. The case of
Camilo Sabio (In The Matter of Petition for the Issuance of Writ of Habeas Corpus of Camilo Sabio,
Oct 17, 2006), when he was asked by the Senate committee to appear and bring all the documents
pertaining to those properties that were sequestered by PCGG. However he refused because
according to him under the law which created PCGG, it is immune from any kind of investigation
that can not be subjected to investigation. Thus he refused to produce them. He even refused to
appear and that was the reason why he was detained. He was cited for contempt and was detained.
Meanwhile he filed a petition for injunction, to stop his detention, in the SC. What was the position
of the SC relating to the Sabio case? According to the SC, the Congress power of inquiry, being
broad, encompasses everything that concerns the administration of existing laws as well as
proposed or possibly needed statutes. It even extends to government agencies created by Congress
and officers whose positions are within the power of Congress to regulate or even abolish. PCGG
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belongs to this class. So long as Constitutional rights of witnesses like Chairman Sabio and his
commissioners will be respected by the Senate committee, it is their duty cooperate with them in
the efforts to take the facts needed for intelligent legislative action. The unlimiting obligation of any
citizen is to respond to subpoena, to respect the dignity of Congress and its committees, and to
testify fully with respect to matters within the realm of proper investigation. On the defense that it
is already subject to criminal prosecution in the Sandiganbayan, can you stop Congress from
conducting legislative inquiry? In Bengzon vs. Senate Blue Ribbon Committee, the SC have
emphasized on this case that it is in aid of legislation, not in aid of prosecution. There is a limit to
legislative inquiry after all. It must only for the purpose of legislating a law, not for the purpose of
finding out whether or not a violation of law was committed and the person subject to investigation
has committed a violation. Because the intention of the legislative inquiry is supposedly to
determine if they can pass a law that would prevent a happening of a commission of a crime or
violation of the law or theres already a law- any chance of enhancing or strengthening the law if
there is some shortcomings of the law.
You take note of the Bengzon case because recently there was a decision of the SC relating to this.
This came out in the last bar exam. This is the case of Standard Chartered Bank vs. The Senate
Committee on Banks. This was decided only on December 27, 2007. This has reference to the
legislative inquiry of the officers of Chartered Bank. Apparently they were involved in selling their
shares of stocks without the knowledge of the Central Bank. It was a violation of law because it
might undermine the economy or the fiscal management of the country. So they were investigated.
How was it made possible? While the case was investigated by the Senate, these officers of
Chartered Bank refused to appear. They were saying that there is already an administrative being
filed in the Central Bank. So with the pendency of the case they can not anymore investigate us.
The SC said, in contrast to the case of Bengzon, the mere filing of a criminal or an administrative
complaint before a court or quasi-judicial body should not automatically bar the conduct of
legislative inquiry. Otherwise it would be extremely easy to subvert any intended inquiry by
Congress through the convenient ploy of instituting a criminal or an administrative complaint. That
is now the qualification made in the recent decision in the Standard Chartered Bank.
Another point that we should take note as one important matter, as it was also raised in the case of
Neri vs. The Senate Committee is on the publication of the rules on legislative inquiry. It was one of
the reasons why Neri can not be cited for contempt because there were no rules if they were not
published. The conduct of the legislative inquiries must be conducted on the rule that it must be
published.
The Question Hour.
What is the difference between a question hour and the legislative inquiry? First and foremost, as to
the person who may be summoned by Congress or its committee to appear, legislative inquiry
could be any person. In a question hour, only members of the cabinet. In a legislative inquiry, there
is no need of the consent of the Pres, to appear before Congress or its committee for legislative
inquiry.
In relation to that, remember the case of Gudani vs. Senga, a military officer who was told by the
chief of staff not to appear before the Senate. Notwithstanding, he appeared and so he was court
marshaled. He was saying, the executive privilege will not apply to him because that has already to
be declared unconstitutional and therefore he can not refuse to appear and answer the queries of
the legislative inquiry. But the SC said, notwithstanding, it has nothing to do with the executive
privilege of the Pres. It has something to do with the supremacy of the civilian authority over the
military. There was an order by the chief of staff representing the Commander in Chief of the Armed
Forces not top appear before the Senate Committee but he defied that order of a superior. Thereby
violating the chain of command. And that is the reason why he was court marshaled because he
appeared before the committee notwithstanding the order not to appear before the committee. Its
nothing to do with the executive privilege. He has to depend on whether he should be allowed by
his superior. In this case, it should have been the Commander in Chief of the AFP. In this case, he
was not allowed. But notwithstanding the prohibition, he proceeded in violation of the order of his
superior. As regards to the question hour, it must always be with the consent of the Pres should any
member of the cabinet appear before Congress or any of its committee.
The difference between legislative inquiry and question hour. On the subject matters that may be
taken, it could be anything in legislative, any subject matter in the legislative inquiry. But in the
question hour, only pertaining to laws affecting these different departments being headed by these
cabinet members. This involves usually the oversight function of Congress. Basically to obtain
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information in question hour of Congress to comply with Congress' oversight function. What is this
oversight function of Congress? It embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of legislation it has enacted. Clearly,
oversight concerns post-enactment, so there's already a law its just a matter of making a follow up,
taken by Congress to monitor first and foremost bureaucratic compliance with program activities
like the program objectives; to determine whether agencies are properly administered; to eliminate
executive waste and dishonesty and to prevent executive usurpation of legislative authority and to
assess executive conformity to the congression perception of public interest. So basically its a
follow-up of the implementation of the laws by these different departments. Because after all it is
the executive department that enforces the laws. The question hour is for the purpose of inquiring
whether it is being enforced, how effective is the enforcement, whether there is a need to enhance
that law and strengthen law or to repeal the law. So the acts involved then by Congress in a
question hour is for purposes of scrutiny, investigation and supervision in enforcement of the law.
Legislation
Let's go now to Sec 24 and 27. Let's go to legislation. You know the process of law making. First we
go to the procedure then later go to the limitations. We have the calendaring of the bills to be
submitted to the Secretary of the House who will calendar the bill for first reading. In the first
reading only the title will be read. After the reading of the title, it will be referred to a committee
because they work as committee and not as body collectively. After it is being referred to the
committee, it is where the calendar committee passing. Either the committee works on it by
conducting investigations and public hearings or the simply laying of the table into oblivion. Recall
only when it is remembered. Otherwise it stays on the table. Its powerful because it is for them to
determine whether or not they should proceed with the bill that was proposed. In the event they
would proceed in further studying the bill, what will happen next after the conduct of hearings? It
goes to the plenary session for the second reading. In the second reading, not only the title will be
read, it will be the whole text so that they can discuss. There would be debate and discussion.
Thereafter, if there are any amendments to be made, by ruling amendments on the bill. After they
discuss on the bill, what will happen with all the amendments proposed? It would be printed as a
final draft submitted or distributed to all the members of the Congress. Then it would again undergo
a third reading. After the third reading, they would have the voting this time on the bill. The thing
you should take note for bar exam purposes is that all bills must pass 3 readings. That is
indispensable. Its a requirement of the Constitution. What can be dispensed with? The reading only
on separate dates. In other words, it can be done on the same day especially when the Pres
certifies that the bill is urgent. Without passing the bill, it might affect or prejudice public interest. In
which case, they can do it on the same day not on separate days but the thing is it must undergo 3
readings.
Let's go to some laws that maybe passed. There are certain bills that should originate or should be
initiated by the House of Reps. Memorize. What are the bills that should be acted first by the House
of Reps before they can be acted upon by the Senate? The Senate can not act on those bills unless
they are initiated by House of Reps. You have appropriation bill, revenue bills, tariff bills, bills
authorizing the increase of public debts, bills of local application and private bills. What are
appropriation bills? Bills that authorize disbursement of public funds. Revenue bills- raising of
revenue such as taxing laws. Tariff bills- still taxing laws. Increasing of public debts, that is still
original of the House of Reps. What is the significance of this? Does this mean that the Senate can
never sponsor a bill pertaining to these? They can. However, they have to wait until they receive
the version of the House of Reps then they can proceed and even come up with a version
practically different or an alien from that of the version of the House of Reps. This is what we call
amendment by substitution. That's the only thing that is significant there. Another point that we
should take note, the matter of the role of the Bicameral Conference Committee. What is the role?
Is it the third house of congress? After the House of Reps it goes to the Senate for the same
consideration/ process. Good if it will concur with the House of Reps. But what if they would come
up with a different version, what will happen here? The versions would have to be reconciled. And
whos gonna reconcile the conflicting versions? There is the Bicameral Conference Committee
whose composition will come equal numbers from the House of the Senate and from the House of
Reps. So you the have members from the House of Senate and members from the House of Reps to
iron out the different versions. Take note that the Bicameral Conference Committee can be powerful
in the sense that they can come up with a version completely different from the versions of both
houses. This is what they call amendment by substitution. But the thing is it will not take effect
unless it is approved by both houses in a plenary session. So ultimately, it is Congress that decides.
Both houses decide whether or not to approve the version that is recommended by the Bicameral
Conference Committee. In other words, the function of the Bicameral Conference Committee is to
iron out the differences, reconcile that and makes recommendation. And may even get to the
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extent of recommending a version that is completely different from the versions of both houses.
That is called amendment by substitution. But ultimately it is still both houses who are going to
decide whether or not to approve the recommendation of the Bicameral Conference Committee.
That's in the case of ABAKADA Guro. The SC said, it recognizes the long standing practice of giving
said Conference ample latitude for compromising differences between the Senate and the House. It
can propose amendment in the nature of a substitute so long as the amendment is relevant to the
subject of the bill before the committee. After all, its report was not yet final but needed the
approval of both houses of Congress to become valid as an act of the legislative department.
Let's go to the matter of appropriation. What is the basis of appropriation of the House of Reps?
First, it is initiative. It is the President who prepares the budget which should be submitted by the
Pres within 30 days from the opening of the regular session.
Can the Congress, decrease/ reduce the budget submitted by the Pres? YES. Can they increase the
budget? They CAN'T. That's the limitation. From the House of Reps, it goes to the Senate. This is an
authority to disburse public funds. The rule is, NO public fund shall be disbursed without authority
of Congress by way of appropriation law. Take note of this case Suplico vs. Romulo, decided on July
14, 2008. This has something to do with the of a loan by the government. Instead of waiting for an
appropriation to disburse the proceeds of the loan, they just immediately apply the proceeds to a
particular public purpose. Should that be allowed? What they did here is to borrow money. After
taking the proceeds of the loan they just simply apply it to the purpose for which they applied for
the loan. They did not wait any appropriation from Congress. That's why it was questioned by
Suplico. SC said, any government expenditure without corresponding appropriation from Congress
is unconstitutional. There can be no dispute that the process of applying loans, whether concluded
or not, can not be obligated in the procurement contract without prior appropriation from Congress.
When the executive branch secures a loan to fund a procurement of goods and services, the loan
proceeds enter the National Treasury as part of the General Funds of the government. Congress
therefore must appropriate by law the loan proceeds to fund the procurement of goods or services.
Otherwise, the load proceeds can not be spent by the executive branch. When the loan falls due,
Congress must make another appropriation law authorizing the repayment of the loan out of the
General Funds in the National Treasury. The appropriation of the repayment of the loan is what is
covered by the automatic appropriation. Their argument here why they did not wait for
appropriation is because they thought it was automatic. They applied the automatic appropriation.
If it is payment of the loan, if subsequent they already know how much will be paid because after all
it is payable on installment basis, they do not always include that in the budget because that is
already ascertained and determined. So there is automatic appropriation. In this case, it can not be
considered as covered by the automatic appropriation. They can not automatically apply the
proceeds of the loan without appropriation. It is only when they make repayment that automatic
appropriation will apply. Take note of this because at one time it was asked in the bar exam on the
matter of application of automatic appropriation. If automatic appropriation, that would not need a
separate appropriation bill every year. Automatically that is allocated and that that applies only for
repayment of loans. Take note of this case of Suplico.
Let's go to taxing laws before I go to the veto power of the Pres. Is it not that it is for Congress to
impose taxes except for those instances where it is expressly delegated to the Pres. However,
limited only to tariff. That is provided for in Sec. 28 of the same Article. Otherwise, that is a power
of Congress as part of the power to raise revenue. That's revenue bills. The thing that you should
take note relating to this is the grant of tax exemptions. These has been asked in the bar exam
several times already. The general rule is subject to tax unless there is a grant of exemption by
Congress through a statute. How many votes is needed in order to grant tax exemption? That would
require concurrence of majority of the members of Congress. Another that you should take note is
on the conditions of the grant of tax exemptions. Who can be exempted from property tax? Limited
on to the exemption from property tax. What are these institutions under the Constitution?
Charitable institutions, churches etc. Lung Center vs. Quezon City, June 29, 2004. The question on
whether or not the Lung Center is exempt from taxation as a charitable institution because the law
relating to the grant of tax exemption, its enforcement is strictly observed. So it was ruled by the
SC that under the 1973 Constitution, the 1987 Constitution and RA 7460, in order to be entitled of
the exemption, the petitioner burdened to prove by clear and unequivocal proof that it is a
charitable institution; its real property is actually, directly, and exclusively used for charitable
purposes. By exclusive it is defined as: possessed and enjoyed to the exclusion of others; debarred
from participation or enjoyment. And 'exclusively' defined in a manner we exclude as enjoined a
privilege exclusively. The words 'dominant use' and 'principal use' can not be substituted for the
words 'use exclusively' without doing violence to the Constitution and the law. Solely is synonymous
to exclusively. In other words, the Lung Center is not exempt because it states only that it is
primarily used for charitable purpose but the term the Constitution says, it has to be exclusively
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used for charitable purpose or religious purpose. It can not be understood otherwise. It can not be
understood as dominantly or principally used for charitable purpose. The words must be
'exclusively' used, to the exclusion of others. Solely. Alone. That's how 'exclusively use' must be
understood.
Another point in taxation in so far as LGUs are concerned, local government can impose taxes on
National offices, agencies or instrumentalities of government that are based in the locality like for
example Phil. Ports Authority. In case of doubt- if there is no law exempting the National agency or
instrumentality engaged in proprietary function, it is understood that it is subject to taxation. The
case of GSIS where Davao City subjected it to taxation because under the law of GSIS it's not
exempt, it was sustained by the SC. That was the reason why they have to amend the law creating
the GSIS to specifically provide there that it is exempt from local taxation. PPA of Iloilo City likewise
was subject to taxation although primarily they are engaged in public service but that is proprietary.
The only thing that was controversial is with respect to Manila Int'l Airport. MCIAA is not exempt
from taxation, although there is still a motion for recon, MIA was exempted when they are
performing the same functions. Only that, SC said, the properties of MIA are possessed by the
government or the State in its sovereign capacity. How can you say that? Does it have something to
do with making of the law, enforcing the law or interpreting the law? Of course not. It proprietary
just as they discussed in the matter of function as the MCIAA.
In case of doubt, how do you resolve whether or not if there is no law? It should be resolved in favor
of exemption of that National agency in case of doubt. Were talking about local taxation. Against
the taxpayer by the National government. If government subjected to local taxation, in case of
doubt it has to be resolved in favor of the National office that it is exempted.
So you know already the basic limitations on the making of bills. It should cover one subject matter
to avoid hodge-podge, insertions of unrelated subject matters etc. You have mastered those basics
already.
The veto power of the President. This one also is important. When does a bill become a law? When
it is signed by the President. If the Pres disapproves the bill, the Pres MUST return the bill to the
house of origin. What is the consequence if the Pres does not return the bill within 30 days? By Pres
inaction, the bill becomes a law regardless whether he/ she likes it or not. There is no pocket veto in
the Phils. In America there is- if the Pres does not act on the bill within 30 days, it is understood that
it is disapproved. In the Phil, its the other way around. If it is not acted upon by the Pres within 30
days, then it is understood that he approves it. If he has some disagreements with Congress as
regards to the provisions, the rule is, the Pres has to veto the entire bill. Not just a portion or
portions of the bill. If he has to veto it, he has to return that to the house of origin with his/her
recommendation for him/her to sign or approve it. The veto message- actually contain the
recommendations of the Pres; why he is disapproving the bill and if you are to reconsider this bill
with my recommendation I might approve it.
Exceptions to the vetoing of the bill in its entirety. There are certain bills that the Pres may only veto
certain portion/s of the bill. That is allowable. What are these kinds of bills? These are revenue bills,
appropriation bills and tariff bills. These are the only bills that the Pres may veto certain part/s. As
long as the vetoed portion will not affect the remaining valid portions.
Once it is returned to the house of origin, what will happen? Its either they reconsider the
recommendation of the Pres by amending or changing it or not at all. They will just simply vote
again upon the bill. If they obtain 2/3 votes, does it automatically become a law? NO. It has first go
to the other house. In other words, both houses must override the veto of the Pres by 2/3 votes
each. The bill becomes a law regardless of the veto of the Pres. Otherwise, the bill is dead.
Cite instances where the signature of the Pres is not needed for a bill to become a law. 1. When the
veto of the Pres is over ridden by 2/3 vote of the members of both houses; 2. When the Pres does
not act on the bill within 30 days from receipt; 3. when a special election is called to fill up the
vacancy when the office of Pres and VP is vacant- it will not pass through the Pres. Otherwise, the
acting Pres might veto it; 4. The withdrawal of the emergency power of the Pres- it is only by way of
a resolution. To grant emergency power to the Pres, under Sec 23, that requires the approval of the
Pres because there has to be a law. But the withdrawal of that power is only by way of a resolution
and therefore does not require the signature of the Pres.
EXECUTIVE DEPARTMENT
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Executive Power
Let's go to the Executive Department. Article 7 this time. You know what is the Executive power.
Executive power is the power to enforce, implement and execute the law. The President becomes
the Chief Executive and administrator of the laws of the land.
Residual Powers
The powers of the Pres however is not limited by the provisions of the Constitution granting him
powers. There are certain powers that are not specifically assigned to the Pres neither are these
powers assigned to the legislative dept or to the judiciary. Under existing jurisprudence, in that
case, these powers are understood to be exercised by the being the Chief Executive. These are
what we call residual powers of the Pres. For example, the matter of expelling an undesirable alien.
Its not provided in the Constitution but being the Chief Exec, it is his power to determine who
should be allowed to enter the country or not. So the matter of giving consent or authority to allow
persons to enter the country or not, is a residual power of the Pres.
The immunity of the Pres from suit is a residual power of the Pres. It is not provided in the
Constitution. The enjoyment of Presidential immunity evolved from a case law. It is a jurisprudential
grant.
The Soliven vs. Makasiar case. This involves Cory Aquino. When there was a comment made by a
columnist in the Star newspaper during one of the coup d ' etat staged by the military that she was
so afraid that she hid under her bed. Because of that comment, Cory Aquino filed a case of libel
against Beltran and the publisher of the Star newspaper. They move for the dismissal of the case on
the ground that the Pres is immune from suit. They were saying 'that's not fair to us cause we can
not file a counter-claim against her in the event her case against us will not prosper because that is
just pure harassment'. But the SC said, this immunity from suit is personal to the Pres. It can not be
invoked by the defendant as a defense. Only the Pres can invoke the immunity from suit because
such is personal to her. It can not be extended to her Cabinet members even if they're considered
as the alter-egos of the Pres. This is one of the power of the Pres that can not be extended to
Cabinet members as alter-egos. The immunity from suit, the declaration of martial law or
suspension of the privilege of the writ of habeas corpus. Take note, these powers of the Pres are not
extended to Cabinet members as alter-egos.
Another point to take note is the case of Estrada vs. Disierto. After he was considered to have
resigned, he was prosecuted for plunder in the Sandiganbayan. He moved for the dismissal of the
case on the ground that he is immune from suit because the impeachment proceedings did not
push through, it was not concluded. Is he correct? Whether or not the prosecution of the Pres is
conditioned on the success of the impeachment? Should there be an impeachment of the Pres
before he can be prosecuted? It is a condition for prosecution if the purpose of the impeachment is
you need to remove the Pres from office so he ceases to enjoy immunity and thus he can now be
prosecuted. For as long as he is the Pres of the country, he enjoys immunity and therefore can not
be prosecuted in any court of law including criminal cases. In the case of Estrada, while he was
never impeached, he was considered to have resigned and therefore no longer an incumbent Pres.
The immunity from suit therefore can only be enjoyed by the Pres during his incumbency, only
when he is still the Pres. Even if his term has not yet been completed, however he is no longer the
Pres, he does not enjoy the immunity from suit. There is no basis in the contention that the
immunity of the Pres extends to the end of the term to which he was elected notwithstanding his
resignation. It is clear that the immunity of the Pres from suit is concurrent only with his tenure
representing the period during which the incumbent actually holds office and not his term the time
during which the officer may claim to hold office as a matter of right.
This was reiterated in the case of Romualdez vs. Sandiganbayan- executive immunity apply only
during the incumbency of the Pres. You notice that in all cases against the executive department,
the target is the Pres but she is never named as the party defendant. Precisely because she enjoys
immunity.
In the case of David et.al, Arroyo was dropped as party-defendant and instead Ermita was
impleaded. What was the reasoning? SC said, it is not proper to implead Pres. Arroyo as respondent.
Settled is the doctrine that the Pres during his tenure of office or actual incumbency may not be
sued on any civil or criminal case and there is no need to provide for it in the Constitution. That is
the only matter on Sec 1. On Sec 2, the thing that you should take note: the age qualification,
citizenship and term of office.
Term of Office
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Let's go to term of office. 6 yrs. only. Term of office commence at noon of June 30 next following the
election. 6 yrs and there is no re election. The Constitution is very specific on this. Single term only.
The Pres is not eligible for any re election. That's the general rule. That is if you have served the full
term of 6 yrs.
In the case of Estrada, why did he run and why did the COMELEC allow it. Because according to him
he had nit finished his full term. He should have finished 6 yrs full term to be disqualified. If you go
by the definition of voluntary renunciation, you remember it is not considered an interruption of the
term. He should have been disqualified. But he insisted that he did not resign.
You have to revisit the case of Estrada vs. Disierto. You have to define then what is considered an
interruption of the term. That has to be defined by law or by interpretation of the court. When it is
considered interrupted? If you go by impeachment, you can say that even if you have not served
the full term, you go by comparison/analogy in the case of members of Congress. When a member
of Congress is expelled or suspended that is not considered an interruption because otherwise he
would not have been suspended or expelled where it not for a fact that he is a member of the
house. So it is considered as he has served the full term for purposes of determining successiveness
of the term. I think that would apply the same to an impeachment of the Pres. What about a
resignation? Still you go by the second paragraph that says voluntary renunciation. But it is not so
stated in this provision of the Pres. It was stated on the provision of the members of Congress but
not in this provision. The law is rather silent. It is very challenging on the part of constitutionalist to
challenge on the definition of 'without re-election'. What is the condition for that Pres to be
disqualified for re-election? Should he first serve the full term? What if it is not served, would that
be an interruption and therefore would thereby qualify him to run for re-election?
Cite an instance where a Pres may serve for more than 6 yrs. Im not talking about re-election. In
cases where a successor to the Presidency would serve less than 4 yrs, then she can run for
election. If she has served more than 4 yrs of the term of office of her predecessor, then she is
disqualified to run for election. The law is very specific on that. You take note of that. So any person
who has succeeded as Pres and has served as such for more than 4 yrs shall not be qualified for
lection to the same office at any time. If less than 4 yrs, then she is not disqualified to run for
election as Pres. How about the VP? The limitation is only 2 successive terms. So he can rest then
run again as VP. Another point you should take note is on the matter on the election of the Pres,
the disqualification is absolute.
Proclamation
Who is going to be proclaimed? What we follow in this jurisdiction is plurality system. Who is going
to proclaim. Who is acting as national canvassers? You have Congress. In case of any election
contest, returns and qualifications of the Pres and VP, where do you file? The Presidential Electoral
Tribunal which is the SC. There is no pre-proc contest likewise. Who can protest the election o a Pres
and VP? Only the candidates who obtained the 2nd and 3 rd highest number of votes can, they are
the only real party in interest. This was an issue in the case of Fernando Poe Jr. where Susan Roces
insisted that the election contest/ case must proceed notwithstanding the death of FPJ. It was
dismissed considering that the issue became moot and academic as Lacson who got the 2 nd highest
number of votes did not file an election protest. What will happen if while the election contest is
pending, the protestant assumed his/her former office? Recall the case of Miriam Santiago. She was
a Senator when she run as Pres. According to the SC, in assuming the office as Senator, protestant
Santiago has effectively abandoned or withdrawn her protest to the election protestee Ramos as
Pres. Her case was dismissed. This was reiterated in the case of Legarda. She run again in the
Senator while a pending election protest against Castro. According to the SC, citing DefensorSantiago vs. Ramos case, the Presidential Electoral Tribunal stressed that Legarda effectively
abandoned or withdrawn her protest when she run in the Senate which term coincides with the
term of the vice-presidency for 2004 and 2010. This was decided on Feb 12, 2008, Legarda vs. De
Castro.
June 26, 2010
Quiz
In so far as the allocation of party list representation, what is the best answer here, is it 1 and 2; 3
and 4 only; 1, 2 ,3; or 1, 2 and 4 only? The only thing that is not correct here is number? Number 4
is the case of Veterans where the requirement of 2% in order to get a seat. Not number 4, number
3, to get a seat. So it has to be, the answer is 1, 2 and 4, letter D. The 2% requirement now as a
qualification to get a seat, it's only to get a guaranteed seat. As to the additional seats, we do not
follow this anymore. You know how to get the 20%, I suppose, of membership coming from the
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party-list system, right? You simply, the number of legislative district representatives divided by
0.80 times 0.20, that would be the required seats allocated for the party-list system and you have
to fill it up, the whole 20%. even if those will get the seat would be obtaining only less than 2% of
the votes cast during the party-list election, do you follow here? OK.
Earlier, I think, there was a question relating to the participation of major political parties. The same
was resolution in the Veterans, you recall, that they are prohibited. However, they have a
counterpart in the representing, as we explain, as a qualification, a sector of society, then they may
participate, but not in so far as the major political parties, they are prohibited, you understand? OK.
In number 2, which of the following best describe or characterize the Electoral Tribunals of
Congress, I mean two electoral tribunals, HRET and the SET. Of course, the one are sole judge or
judges of contest relating to election returns and qualification, that's letter C.
Let's have number 3, this has reference to the enjoyment of parliamentary immunity. As explained
in letter A, this was the argument of Trillanes in the case of Trillanes IV vs Pimentel, the argument of
the accused is tenable because he still enjoys the presumption of innocence until his guilt is proved
beyond reason of doubt. Letter B, the argument of accused is tenable because he is privileged from
arrest and detention even for criminal offense while the Congress is in session. What is lacking in
here is the specific years of imprisonment as the penalty for the offense that he cannot be arrested,
right? Letter C, the argument of accused is not tenable because there is no basis whatsoever for
treating him differently from other convicts. Now, that could be a good argument for equal
protection of laws but you're talking about parliamentary immunity as granted, OK. The idea, the
limitation of the grant, as an enjoinment of that right under Article VI. The argument of accused is
not tenable because he is exempt from arrest and detention for a criminal offense, provided that
the offense was not punishable by a penalty of more than 6 years imprisonment, that's the best
description for the immunity, in addition to the enjoinment. But if the question relates to matter of
whether the enforcement should be applied against him or not, then you go by the equal protection
of laws. It depends on the context of the question or the case that is asked.
Number 4, of the following, which is not covered by the parliamentary privilege of speech of a
member of Congress: immunity from criminal prosecution for libel, that is covered; immunity from
civil action for damages, likewise, he is exempt; how about immunity from the disciplinary authority
of Congress for disorderly behavior, this is administrative liability, he is not exempt. Immunity from
legislative action of Congress, that is not among those discussed about the enjoyment of the
freedom of speech. So, the answer to that should be the best answer not covered of the immunity
from the disciplinary authority of the Congress for disorderly behavior, that's letter C.
Number 5, X and Y were opposing candidates for senator, this is with reference to the matter of
who has jurisdiction, COMELEC or Electoral Tribunal. Who has jurisdiction in this particular case,
were the candidate elected, was already proclaimed and has taken his oath of office. Letter A, Y's
petition will not prosper because jurisdiction is no longer with COMELEC, X having been proclaimed
a winner; taken his oath and assumed office as member of the House of Senate. Letter B, X's
petition will not prosper because Senate Electoral Tribunal is the sole judge of election contests
relating to the election returns and qualifications of members thereof. Letter C, X's petition will
prosper because COMELEC has not been divested of its jurisdiction on Y's petition as the validity of
the proclamation is still being assailed. X's petition will prosper because the proclamation of Y was
premature and invalid considering X's timely filing of the instant petition. What is now the prevailing
principle on petitions for disqualification and all. We have now a resolution saying that if you won in
the election, notwithstanding the petition for disqualification, you can be proclaimed and once
proclaimed, COMELEC is divested of its jurisdiction. For as long as proclamation is valid, COMELEC is
divested of its jurisdiction. So, where do you now continue your petition questioning the validity of
the proclamation? This is without prejudice to the Electoral Tribunal continuing with the petition but
definitely COMELEC is divested of its jurisdiction. Once a candidate is proclaimed as the winner and
he has taken his oath of office and assumed office as member of the House of the Senate. So what
is the answer to this one? It's letter B, this is the case of Zubiri vs the COMELEC. In other words, it's
specified, SENATE; more or less the same ang answer sa A and B only that B is more complete, it
mentioned the Senate Electoral Tribunal.
Let's have number 6, this is the case of Gudani vs Senga. This has reference to him being
prosecuted, you remember, court martial. So, a question of validity. Letter A, yes because the
president has constitutional authority to do so and as a consequence, a military officer who defies
such injunction is liable under military justice. That is a correct premise, but take note of Letter B,
yes because the president could, as a general rule, require military officers to seek presidential
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approval. Very specific now, it pertains to the case, because he appeared without the approval of
the president. Before appearing before Congress is based foremost on the notion that a contrary
rule unduly diminishes the prerogatives of the president as commander-in-chief. All the rest are
wrong, the answer is Letter B.
Number 7, Lung Center vs The Quezon City Government. The Lung Center asked for exemption
because they were assessed for taxation for those properties that were leased, getting income from
the rentals. Letter A, they're asking for exemption because they are principally to help combat the
high incidence of lung and pulmonary diseases in the Philippines. Take note that there is no
question that the Lung Center is a charitable institution. You do not exempt a charitable institution
because it is charitable; or because it is religious; or because it is educational. What you exempt are
the properties of the charitable, of the religious institution, of the educational institution that are
actually, directly, and exclusively used for religious, educational or charitable purposes. Because
the lands being owned by this charitable institution are used for profit, in which case, that is not
exempt from property tax. The answer is letter D.
Number 8, all except one best characterize Philippine taxation. It is equitable, uniform, following
progressive system. It may be enforced. That is taxes, enforced contribution, you cannot find that in
the use of the provision, in so far as the power to tax on the part of Congress. So, except
mandatory.
Number 9, the State may not be sued without its consent, however there is an implied consent
when, all of the above. When you expropriate without paying just compensation that would cause
injustice so that even if it is not an act of the State because it was unauthorized but this is
expropriation, an implied giving of consent.
Number 10, this is the case of Standard Chartered Bank vs The Senate Committee on banks. This is
Enrile, you do not apply the Bengzon case in this case. In Bengzon case, the investigation has to be
in aid of legislation and not in aid of prosecution. In the Standard, still initiated by Ponce Enrile, in a
privileged speech, that it is in aid of legislation and not in aid of collection. Because there were
some depositors who complained to the Senate about losing money, their investment in the bank,
because of this practice of the bank that is questionable. So they wanted to conduct an
investigation. These officers of Standard Bank were summoned before the Committee, however,
they sent a letter telling the Committee that there is already an ongoing investigation in the Central
Bank and criminal cases likewise were filed; so we're not anymore appearing because it might
conflict with whatever judgments or decisions that may be rendered by this tribunal. Supreme Court
said that they are not correct because the mere filing of a criminal and administrative complaint
before a quasi-judicial body should not automatically bar the conduct of legislative investigation,
otherwise, it would be extremely easy to subvert any intended inquiry. That is now the prevailing
principle. But still, Bengzon case actually applies, only that there are different circumstances in the
Bengzon case.
LEGISLATIVE
Some bills must originate from the House of Representatives, we do have other limitation.
Laws Affecting Jurisdiction of the Courts
The one that determines jurisdiction of the courts, in general, except for those that are provided in
the constitution specifically, the jurisdiction of the Supreme Court, it is Congress that determines
jurisdiction of the courts, specially the statutory courts. You have a specific minimum jurisdiction
granted to the Supreme Court under the constitution, both original and appellate jurisdiction. In so
far as the statutory courts are concerned, the jurisdiction and authority to hear certain cases is
determined by law. It is Congress that determines the authority or jurisdiction of each court to hear
certain cases.
In so far as the Supreme Court is concerned, because the constitution has granted its specific
jurisdiction both original and appellate. In so far as the original jurisdiction of the Supreme Court,
can it be reduced by ordinary legislation, can Congress reduce the jurisdiction of the Supreme Court
by ordinary legislation, the answer is NO because that would amount to amending the Constitution,
you cannot remove the jurisdiction of the Supreme Court that is granted to it expressly by the
Constitution.
How about increasing the original jurisdiction, can Congress increase the original jurisdiction, the
answer is YES. Is there any qualification or condition for Congress to do that? There is NO
qualification, in other words, there is no need of consent, whatever from the Supreme Court in
order to increase original jurisdiction.
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In so far as the appellate jurisdiction is concerned, can you reduce the appellate jurisdiction that is
granted to it by the constitution, the answer is NO. Can you increase its appellate jurisdiction,
minimum appellate jurisdiction granted by the constitution? YES, provided that there should be the
advice or concurrence of the Supreme Court. Case in point, we have the case of Fabian vs Desierto.
Recall the provision of RA 6770, granting the Ombudsman the authority to investigate both
administrative and criminal against erring public officials. In so far as administrative cases, where
do you appeal a decision of the Ombudsman? Should you appeal it to the Court of Appeals or to the
Supreme Court? Section 27 of RA 6770 provides that appeals of the decision of the Ombudsman
should be directed to the Supreme Court. That means purely on question of law or allegation of
abuse of discretion amounting to lack or in excess of jurisdiction only. In so far as the factual
findings then of the Ombudsman, it is understood that they are conclusive upon the courts, what
will be reviewed by the Supreme Court would only be on the issue whether or not there was
incorrect application of law in the given facts of the case or whether if there is, there has been
grave abuse of discretion amounting to lack or in excess of jurisdiction. That's how powerful the
Ombudsman is in administrative cases because the only appeal available is direct to the Supreme
Court and the factual findings even of the Ombudsman is binding upon the Supreme Court. This
was challenged in one of the cases, in that case of Fabian vs Desierto, they appealed to the
Supreme Court and the Supreme Court made a declaration: we were never consulted of this; we
were not asked our consent, whether we want to review decisions of the Ombudsman. That
provision in RA 6770 was declared unconstitutional for it increased the appellate jurisdiction of the
Supreme Court. The point of reference is the Constitution as regards to the extent of the appellate
jurisdiction of the Supreme Court without the consent or concurrence of the Supreme Court. Now,
decisions of the Ombudsman are not appealable directly anymore to the Supreme Court but to the
Court of Appeals both on questions of facts and application of law. It's no longer just simply petition
for certiorari or petition for review.
EXECUTIVE DEPARTMENT
Let's go back to the executive department. We started on the exercise of immunity from suit on the
part of the president as part of his/her residual powers. What is settled on this case is that it is only
enjoyed by the president during hi/her tenure; during his/her actual incumbency. So that if he/she is
no longer connected with the office of the president either because of resignation or his/her
removal from office or by permanent disability, then he/she would not anymore enjoy the immunity,
he/she can be prosecuted for acts even committed during his/her tenure that are not related to the
performance of his/her duty.
Term of Office
Term of office of the president is 6 years without re-election. Term of office of the vice-president is 6
years but shall in no case be more than 2 successive terms. So, apparently when the provision on
voluntary renunciation, it is in the paragraph related to the vice-president for purposes of
determining successiveness of the term of office that is limited only to 2 successive terms. There's
nothing mention about the president if he/she resigns and has not been able to fully serve the 6year term, can he/she still run for re-election, considering that he/she has a term of 6 years and
he/she has not completed it. That is why they're banking on the saying: since the president had not
finished his/her term, then in which case he/she is still qualified to run for another election.
Recently, there was this case of Algobino vs COMELEC, decided sometime in March 2010,
something to do with the matter of preventive suspension. If a public official, for purposes of
determining the 3-term limit of the successiveness of the term, and the Supreme Court said in that
case of Algobino, it applies to all those public officials whose terms are limited under the
Constitution or by the Local Government Code. If suspended, if you are placed under preventive
suspension, such as in this case, the public official was suspended for 90 days by the
Sandiganbayan and thereby interrupted his term of office because he was suspended for 90 days.
Would this interrupt his term of office for purposes of running for re-election. What happened here,
this public official (mayor) was suspended by the Sandiganbayan for 90 days, preventive
suspension, in his 3rd term, he was placed under preventive suspension. The question is: can he still
run? Because he ran in the next election, as his 4 th election. A petition for disqualification was filed
against him because he has already serve more than 3 successive terms. His argument was: I'm
still qualified because my term was interrupted by the 90-day preventive suspension, the Supreme
Court said there is no interruption as regards to preventive suspension because it was not a penalty.
Canvassing of Election Returns; Election Protest
The matter of canvassing of election returns, is done by Congress. Congress is not precluded from
creating committee to actually hear but if there is any proclamation, it has to be done in a joint
session by both houses.
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As the Electoral Tribunal, you have always the Supreme Court. What would be the consequence
should one of your election protest if the candidate would resume his/her office, for example, as
senator, that was the last office he/she left before he/she ran for president and filed a electoral
protest against the winner, remember the case of Miriam Santiago, Supreme Court said that's
tantamount to abandoning the election protest and the same principle was applied to the case of
Legarda who ran instead as senator and she won and assumed office as a senator. She was
deemed to have abandoned her electoral protest for the vice-presidency against Castro.
Vacancy in the Office of the President
In case a vacancy occurs in the office of the president as well as in the office of the vice-president,
you take note when did the vacancy occur? Was it at the beginning of the term or during the term?
At the beginning of the term, the vacancy is usually temporary, like when the president-elect fails to
qualify or no president yet has been chosen because there is still the canvassing of the election
returns. It is temporary. Until the president-elect qualifies or has been chosen, then who will be the
president? The vice-president will simply act as the president. But if at the beginning of the term, a
permanent vacancy is created, like when the winner died before being proclaimed, then in which
case the vice-president elect shall become the new president. Upon it is is not clear in the Local
Government Code, this is however clear in the Constitution. I suppose they follow the Constitution
by way of an analogy. I'm not sure if this is very clear in the Local Government in the matter of
succession in case the governor fails to be sworn into office, he dies. I n this particular case, it
would be the vice.
The problem is with regard to vacancy occurring during the tenure or the term of office of the
president. You have to make a distinction between permanent and temporary occurrence like
disability that may cause a vacancy in the meantime in the office of the president. Let's talk about
permanent vacancy. How permanent is death to create a vacancy in the office of the president?
There is no debate, if the president dies, then the vice-president becomes the new president.
Resignation, now there is the issue of controversy. We maintain to the case of Estrada, there is no
formality being followed in so far as resignation is concerned, for as long as there is manifestation
that the president has relinquished his powers as president or his office, then he is considered to
have resigned; maybe by writing or by implication by his acts. In the case of Estrada vs Desierto,
the Supreme Court said there were 2 basis why he was considered to have resigned: 1) he left
Malacanan Palace; 2) in the diary of Mr. Angara, it was written there that Estrada intimated to him
that he is resigning as President. On the basis of these 2, Estrada was declared to have resigned.
The only point that was considered here is that there is the intention and the intention corresponds
to the act. What was the intention, abandonment of the office and it corresponds to the act of the
president actually, physically leaving Malacanang Palace and that was taken as resignation. It was
relinquishment of the office of the president and thus was considered resigned. If he were ordinary
public officer who does that, he can be charged with abandonment of office and that's criminal.
On law on public officers, when does resignation take effect? Upon acceptance of the resignation.
Otherwise he would have criminal liability for purposes of determining criminal culpability to the
person who just left his office because for him he is resigning; you can't just leave your office and
say I'm resigning. You can be charged with abandonment and whatever happens to your office, you
can be charged criminally. There must be acceptance. There is a procedure.
Is permanent disability limited to physical disability? Permanent disability that you cannot hold
office. What about functional disability? You don not have cabinet members to support you
anymore. Congress do not support you, the AFP, most especially, does not support you anymore,
how can you run the nation if everybody is against you. You are the president but you have no
follower. Can that be considered also as permanent disability, not just temporary on account of
functional disability? You're practically a political inutile.
In one of the discussions in the separate opinions of the justices of the Supreme Court trying to
explain how the vacancy occurred during the time of Estrada. There was question in the recitation
because some people, may people, are not convinced by the recitation theory, at least by the
functional disability that may create a permanent disability in the office of the president in which
case the vice-president becomes the new president. In contrast to temporary disability, temporary
disability because Estrada insisted that he only was under temporary inability to perform his duties
for some reasons. In fact, he informed Congress particularly its officers that he is on leave only,
that he is not resigning. Notwithstanding the subsequent declaration that he resigned. Take note of
temporary inability to function as president for purposes of multiple choice. Is there a decision
relating to this? YES in the case of Estrada vs Desierto where the Supreme Court said that on the
matter of determining the procedure on temporary inability to perform and was going to determine
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whether or not a public officer is only on temporary inability, it is discretionary of Congress and the
Supreme Court cannot intrude into that without violating the principle of separation of powers.
When the president himself makes a declaration that he is temporarily unable to perform his duties,
he has to inform Congress and then he has to communicate that in writing. Once it is transmitted,
the vice-president will not become, he will just act as the president. The thing is it is a useless thing,
why do we have this provision when we do not follow it; just create some confusion to Estrada. If it
is not the president voluntarily, it's not a useless thing because if the president will deny that he is
temporarily unable to perform his duties, he has still his cabinet members. The point is it's not
ineffective. In the event the president would insist that he is able however the majority of his
cabinet would say no he is not able, then at this time the Congress has to decide. How many votes
are needed in order to declare the president under temporary disability? It requires 2/3 voting
separately.
On the matter of impeachment, impeachment is a way of removing a member of the executive
branch particularly the president and the vice-president. Removal before the term of office expires.
Qualifications
The most important qualification: able to read and write. The usual thing: natural-born citizen, at
least 40 years of age on the day of election.
Vice-President
Can the president serve for more than 6 years? YES if the vice-president succeeds to the presidency
less than 4 years of the term of office of his predecessor, then he can run for election for the 1 st
time as president. So he would have 6 years for the election and for the succession whatever years
that have been left by his predecessor, so definitely it would be more than 6 years. But if he had
served for more than 4 years of the term of office of his predecessor, then he cannot run for
election as president.
Term of Office;
Vacancies in the Office of the Vice-President
The vice-president has a term of office of 6 years but shall in no case be more than 2 successive
terms. In case of vacancy that would occur in the office of the vice-president, that is, if it is
permanent or temporary, temporary at the beginning of the term, who will become or who will act
as the vice-president? If at the beginning of the term, he fails to qualify or no one has been chosen
because there was a tie, who will act? There is a provision relating to that. It's only the president
because there is a president anyway. He is only a spare tire. His role in the government is only
significant when there is a vacancy in the office of the president. Because the president may not
appoint him to any of his cabinet seat. He will just have to wait until a vacancy is created in the
office of the president. That's why they're saying the vice-president is the most prayerful public
official in the country, praying that the president will die so that he can succeed to the office.
But if it a permanent vacancy that is created, how do you fill up the vacancy? It is the president that
nominates from Congress to be confirmed by majority voting separately. In case vacancies occur in
both offices, in the meantime, the President of the Senate will act, if he is also incapacitated, it
would be the Speaker of the House, if the Speaker is likewise incapacitated, they have to pass a law
to determine who shall act as president. And then they can call for a special election. Take note
however the conditions to call for a special election: the vacancy must occur not within 18 months,
otherwise they have to wait for the regular election and let the acting president discharge the
functions of the office of the president. This is one instance in the making of laws such as the calling
for a special election that the bill does not pass through anymore to the acting president for
signature. After the 3rd reading, the bill becomes a law. Because if it will pass to the president, it
might be vetoed by the president.
There is no prohibition against the president running for a lower position. It is only for the
president's re-election that is prohibited.
Salaries
On salaries of the president and vice-president, they are determined by law. Can they be decreased
during the tenure? They cannot. Can they be increased? YES however they will enjoy the increase
only after the expiration of the term. They are prohibited from receiving all of the emoluments. That
does not include allowances, and all, pork barrel. Only salary is fixed by law.
Section XIII on the Disqualification
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This has been a favorite of the BAR exam before regarding on holding other offices. Whether the
same prohibition for the president and the cabinet members from holding other positions in
government, unless it is allowed or because the position he's holding right now requires him also to
hold the other office. Exceptions to this, for example the vice-president who maybe appointed to a
cabinet seat, so that would be another office. As a general rule, it is prohibited however that is an
exception; or a cabinet member who is appointed at the same time as the member of the judicial
bar council as an ex officio member because of the office that he holds as the Secretary of the
Department of Justice. That's the qualification why he s also chosen as an ex officio member to the
JBC. Generally, it is prohibited except when it is allowed by law or because the nature of the
functions of the office which he is holding right now requires him also to hold that other office in the
government. The usual thing on the prohibition against the practice of his profession, directly or
indirectly, participation in business and being financially interested in contracts with or any
franchise that may be issued by government or any of its political subdivisions or instrumentality
including government owned or controlled corporations and their subsidiaries. By nature the
appointment is executive and is vested in the president, the president, however cannot appoint
his/her spouse and relatives up to the 4 th degree which is up to 1 st cousins which includes children
to certain positions in the government. This includes by blood or by law which means collateral, by
affinity. What are these positions in government that he cannot appoint his close relatives?
Members of the Con-Con, Office of Ombudsman, Department Secretaries, Undersecretaries, and
Chairman or Heads of the Constitutional Bodies, GOCCs and their subsidiaries.
Power of Appointment of the President
This is controversial because of midnight appointments. The question on the appointment of Chief
Justice of the Supreme Court within the prohibition provided for by law on Section 15 and subject to
the election ban, within the election ban. Power of appointment by the the president that is
provided for in Sections 14-16. the appointment power is by nature a power enjoyed by the
president. Remember the case of Flores vs Drilon, this has something to do with the appointment of
a Chairman of SBMA. It used to be by appointment, at the beginning, when SBMA was created
before there was an election. The mayor then was Sen. Gordon of Olongapo, then he was appointed
as Chairman of SBMA. Not because the president appointed him, it was because the law provides
the qualifications that pertain to the mayor becoming the chairman of SBMA and thereby practically
removing the discretion of the president to appoint key officials to certain positions of government.
This provision of the law was declared unconstitutional for it violates the power of the president to
make an appointment which is by nature vested in the president.
Regular Appointments and
Appointments
Recess or Ad Interim
Different kinds of appointment that may be made by the president: regular appointments and
recess or ad interim appointments.
Regular appointments require confirmation. Section 14 enumerates officers whose appointments
need confirmation. They are exclusive and cannot be expanded by ordinary legislation.
The thing that you should take note only is on the matter of promotions of generals because of the
controversy relating to Bangit. Bangit failed to get a confirmation although he was nominated by
the president but it requires confirmation because it was a regular promotion. There is a specific
number of stars for him to qualify as the chief of staff and the failure to get the confirmation
disqualifies him to hold the office as the chief of staff.
In so far as the appointments are concerned specially when they are regular, they are effective only
upon confirmation. In other words, therefore, if it is disapproved, then you just simply go back to
your old position if you are already connected with government because the confirmation is the
operating factor that makes the appointment effective. If it is approved, then it becomes effective
upon approval. If it is by-passed, then nothing. Your appointment would still be temporary.
In relation to temporary appointments, if it's only in acting capacity, even if you're among those
officers enumerated in Section 14 requiring confirmation by the Commission on Appointments, in
order to be considered as effective, it's only temporary in nature. The president is not compelled to
submit his appointments to the Commission for confirmation, afterall they are only temporary in
nature and the appointment power is discretionary of the president.
On regular nominations made by the president while Congress is in session. If it is disapproved,
then in which case, the appointee cannot be re-nominated anymore.
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In recess appointments, they are not temporary in nature, they are permanent, effective
immediately upon qualification of the nominee. If it is approved during the resumption of session of
Congress, that includes the Commission, then you will enjoy security of tenure, you hold the office
as long as you hold the trust and confidence of the president. If it is disapproved, then you are
considered (inaudible). Expiration of term, upon disapproval. If it is by-passed, then it shall last only
until the next adjournment of Congress. In other words, the tenure is limited until the next
adjournment and is considered as an expiration of the term only; you are not fired. Can be you renominated to the same position? Answer is YES. You can be re-nominated, the prohibition against
reappointment applies only to regular appointments not against ad interim appointments. Case in
point: Matibag vs Benipayo.
Appointments by the Acting President
Midnight appointments. There is this prohibition against appointment by [you have this acting
president making appointments which can be revoked within 90 days upon the assumption of office
by regular president].
What if they're regular appointments, meaning they're career positions can they be revoked? Do
they not enjoy security of tenure? In other words, you have to read this in relation to civil service
commission relating to the enjoyment of security of tenure of regular employees of the government
although appointed by the president.
In so far as (inaudible) of government even if their appointments are regular, what are they doing,
they are asked to file the courtesy resignation because they cannot just be removed from office,
they enjoy security of tenure. That tends to the office to which they are appointed to whether it's
regular, it's career, non-career because if it's career they are protected by law on security of tenure.
If it's non-career, then in which case, it is at the pleasure of the president.
JUNE 28, 2010
Appointment Power
I think we discussed on the matter of appointment the last time. So we explained that in so far as
the appointment power of the President, that is by nature a power that is vested in the office of the
President. However, there are so many limitations on the exercise of that power. And so we have,
one limitation here, but that is only in so far as the acting president is concerned. That while the
acting president may make an appointment during his tenure, such appointment however can be
the subject of revocation by the elected president. The elected president shall have a period of 90
days within which to make the revocation. Otherwise, the appointment becomes permanent. This
therefore, will not apply to cases involving the cabinet members of Aquino in so far as the new
president who would be serving this June 30, noontime of this year. But that thing is, considering
that cabinet positions are a position that must be in with the confidence of the President;
nonetheless, they hold the office at the pleasure of the President. So out of courtesy, it has been
the practice in the cabinet that to give the next president the discretion to choose the members of
his family, in the cabinet, they are suppose to file their courtesy resignation. In the event they will
file their courtesy resignation, the President may replace or remove them. And that will not be
considered as dismissal from the service. Rather, it is more treated as an expiration of the term of
office of that particular cabinet member.
Limitations to the Appointment Power of the President.
Then you have Section 15. That is with reference to the limitation on the appointments of the
president two months preceding the election. This is to prevent what they call as midnight
appointment. And besides, it falls under the election ban that no appointment shall be made
during that period so that there will be influence in the conduct of the election or in the outcome of
the elections.
It has become controversial because of the recent appointment of the Justice of the Supreme Court
within that period that is prohibited. And so the main question that was raised, whether or not this
is applicable to the judiciary as well. Because there is a qualification there on the exception to the
midnight appointment, in so far as executive officers are concerned in a case of a vacancy that may
occur if not filled up, it might cause prejudice to public service, or cause danger to public safety,
then the president can make temporary appointments - in so far as the executive branch is
concerned. There is no mention about the judiciary. On the other hand, is it not that appointments
of judges of the lower courts, in case of a vacancy has to be filled up within 90 days, not from the
occurrence of the vacancy but from the submission of the nomination by the JBC. Im talking about
lower courts, and as well as IAC - meaning from MTCC, first level courts to the CA, including the
Sandiganbayan, and the CTA. Should there be vacancy that would occur in the judiciary, the filling
up as provided by the constitution is within a period of 90 days from the submission of the
nomination, of a shortlist by the JBC. In other words, there can be a vacancy for ten years and then
eventually JBC would submit a list. But the moment the JBC would submit a list, the President is
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given a period 90 days within which to act on it. But in so far as the SC is concerned however, it has
only 90 days from the occurrence of the vacancy within which it should be filled up. 90 days from
the occurrence of the vacancy.
And thats the conflict now because they were saying that if it is not filled up, it might cause some
problems in the Judiciary and even undermine independence of the CS. Thats why they proceeded
in having the appointment and this has become now the cause of controversy in a case. We have a
decided case on that now and which decision has already been confirmed by the SC, sustaining the
validity of the appointment of a Chief Justice of the SC.
As a precedent, before that appointment of the Chief Justice, you take note of that case of
Valenzuela sometime in 1998 or 1995, where the SC said that the prohibitions against midnight
appointment likewise applies to the judiciary. Understandably, there is no urgency to fill it up. But in
the seeming conflict, they were saying, impliedly that should accommodate That provision in the
judicial department relating to the filling up of vacancy in the SC within the period of 90 days from
the occurrence of the vacancy. An opinion in that Valenzuela case, the SC said the 90-day period
should not be reckoned from the actual occurrence of the vacancy. It should take exception to the
prohibition against midnight appointment. In other words, it will not start to run the period of 90
days supposedly.
Lets have that case. The cases De Castro vs. JBC, Soriano vs. JBC. Philconza vs. JBC, in re:
applicability of Section 15, Article 7 of the Constitution to appointments to the Judiciary. This was
decided on March 17, 2010, as well as on April 20, 2010. The SC said that the prohibition under
Article 7, Section 15 of the Constitution against presidential appointments immediately before the
next presidential elections and up to the end of the term of the outgoing president does not apply
to vacancies in the high tribunal, meaning the SC. Although Valenzuela came to hold that the
prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum
did not firmly rest on the deliberation of the constitutional commission. Thereby, the confirmation
made to the JBC by the Senior Associate Justice Florence Regalado of this court, a former member
of the Constitutional Commission about the prohibition not being intended to apply on
appointments to the judiciary which confirmation Valenzuela even expressly mentioned should
prevail. Had the framers of the constitution intended the prohibition contained in Section 15, Article
7 to the appointment of members of the SC, they could have explicitly done so.
Take note that in so far as the midnight appointment is concerned, it does not apply only in so far as
appointment of members of the SC. SC only. As to the rest of the judiciary, you still have the
Valenzuela case. In other words, midnight appointment applies against them. Like there was a
question on the appointment of the justices of the CA, still this midnight appointment will apply. The
trouble is the dates of appointments are antedated. It might probably come out months thereafter.
Like my appointment for example to the judiciary was dated sometime February 2006 but I got the
appointment only sometime last week of May 2009. When you go like when was the appointment, it
should be on the date it was signed. It can simply be antedated in order prevent or to avoid the
application of this provision. But the thing is still settled now is the rule which is already decided by
the SC with finality after the denial of the Motion for Reconsideration that the midnight appointment
applies to all, including the judiciary except the appointment of justices to the SC.
Regular and Ad Interim Appointments
So we have already explained on the appointments in so far as the regular and ad interim. In so far
as the regular appointments requiring the confirmation by the Commission on Appointments, this is
done during the time when Congress is in session. And then you have the acting appointments in
contrast to the regular appointments, even if Congress is in session, the President can make those
appointments and that would not require confirmation by the Commission on Appointments. What
was also emphasize in the case of Pimentel vs. The Executive Secretary, relating to the
appointments of acting secretaries, the SC said that while members of the CA also come from the
Senate, the Senate however members, cannot supplant the decision of the CA with respect to
appointments that may be made by the President. It is still the CA which has the power, although
members of such office come from the Senate - 12 of whom in fact. Another point you should take
note is that we should distinguish one from another from the ad interim appointments. Ad interim
appointments are permanent, and they are issued by the president while Congress is not in session.
The appointment being permanent, the person who was appointed enjoys the security of tenure,
except when upon resumption of the session of Congress, the appointment is disapproved or if it is
not acted upon, it is considered to have expired until after the next adjournment of the session of
the Congress.
The Power of Control vs.
The Power of Appointment of the President
Just in relation to the power of appointment of the President, if you are asked as it was asked at one
time, in administrative law, whether or not the power to discipline the person of the appointee of
the President would result even to the extent of removing him from office. Is it part of the power of
control of the President over the executive department, or is part of the power of the appointment
of the President. It is part of the power of appointment. This has been sometimes misunderstood if
not interchangeably understood as part of the power of control. The control only refers to acts or
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decisions of a subordinate which may be modified or changed by the President having the control of
the executive department, and therefore, does not include the power to discipline the appointee.
The power to discipline that would even result to the removal from office of the appointee is part of
the power of the President to make the appointment.
The Power of Control and Supervision of the President Over the Executive Departments
Lets go now to the power of control and supervision of the President over the executive
departments, as well as local governments. In so far as the executive department, the President
being the Chief Executive, the President has the power of control. What is this power of control?
And you should know the difference between control and supervision. In so far as control, it includes
the power to change decisions of the subordinate; modify decisions of the subordinate; or even set
aside a decision of the subordinate. And substitute the judgment of that subordinate to that of his
decision. How about supervision? In so far as supervision is concerned, it is only limited to ensuring
that the officer acts in accordance with law; to ensure that laws are faithfully executed. How about
the GOCC? Does the President have the power of control? The answer is yes. Usually the control
over these corporations are vested in him by statures, by law.
Qualified Political Agency
This power of control of the President over the executive department has been delegated to the
alter ego. And the alter ego refers to the heads of the executive departments under the principle of
qualified political agency. I want you to take note of the concept of this qualified political agency.
Basically the heads of the executive departments are considered as adjuncts or extensions of the
personality of the President. And in which case the act of a secretary of the department is
considered to be the act of the President, unless the acts are disapproved or reprobated by the
President; or if the President is required to act in person in law or by the Constitution, then in which
case such cannot be exercised by a subordinate such as the secretary of the department.
What is usually asked in the bar exam is on the other matter relating to powers or acts of the
President which cannot be delegated to the subordinates. And you must take note of that. What are
these powers of the President that cannot be extended or delegated? That even if delegated by the
President, the delegation is void and therefore has no legal effect. Such powers like the power to
declare Martial Law, or suspend the privilege of the Writ of Habeas Corpus. That power cannot be
delegated to anyone. Thats a power that is exercised only by the President. Another power is the
matter of enjoying immunity form suit. It is likewise not extended to the secretary of a department.
Another power is the power to expel an undesirable alien, likewise, is not delegated to the
subordinate. You take note of this because later you will be asked on the matter of whether or not
the delegation or the exercise of the power by a subordinate is valid. The power to grant pardons,
amnesty, commutations and reprieves, is not extended to a delegate. If the Secretary of the
Department of Justice grants pardon to a particular convict, after serving the minimum period of his
sentence, such is void even if it is ratified by the President because that is one of the powers that is
not delegated to a subordinate under the principle of political qualified agency. The controversial
relating to this has something to do with the Bangko Sentral ng Pilipinas chairman entering into a
foreign contract on the matter of contracting a loan from a foreign financial institution which was
only done by the chairman of BSP. There was a question that it should have been a power that only
the President can exercise, and therefore the contract is void. That is the case of Caseja. That was
the Caseja case, where the SC said that in as much as the power to contract foreign loans is not one
among the powers that cannot be extended or delegated by the President, in which case the
chairman of BSP can exercise and act on behalf of the President with legal effects.
I want you to take note of that. Again, the principle is - even one is alter ego, if such is an exercise
of powers that are specifically not to be delegated to a delegate, then even if delegated, that is
void; or even if ratified by the President, still it is void. It cannot be cured by the ratification of the
President. This came out in the bar exam, it might be repeated.
An executive privilege also is another power that cannot be delegated. Remember the Drilon case
vs. The Executive Secretary.
Specifically, the only powers that cannot be delegated, I repeat, are declaration of martial law, the
suspension of the privilege of the writ of habeas corpus, the enjoyment of immunity from suit,
executive privilege, the power to grant pardon, and the power to expel undesirable aliens.
Reorganization of Offices
Lets go further on the extent of control by the President over the executive departments. So you
take note whether or not the President can inactivate an office or can consolidate offices under the
executive department. Generally, is it not that offices are created by Congress, by law? And
therefore, supposedly, only Congress can abolish or change or inactivate an office, also through a
law. You take note of those cases relating to part of the power of control of the President in so far
as the reorganization of offices under the executive department to the extent of inactivating it or
even abolishing, or if not consolidating all these offices under one office. This Buklod ng Kawaning
AIIB vs. Zamora, it was asked in the bar exam twice, where this office of AIIB although in theory it
was not abolished, but practically it was good as abolished because it was inactivated. The
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employees in that office were transferred to other offices of the government under the executive
department. Can it be done by the President? The SC said yes, because that is part of the
presidents power to control which may justify him to inactivate the functions of a particular office,
or certain laws may grant him role authority to carry out reorganization measures. The Chief
Executive under our laws has the continuing authority to reorganize the administrative structure of
the Office of the President. Again take note that it is limited only to the executive department
because of the power of control of the President over it. A more recent decision, reiterating that
case of Buklod ng Kawaning AIIB is the case of Malaya Employees and Workers Association of the
Philippines Inc. vs. Romulo. This was decided on July 31, 2007. This has reference to the
reorganization of the Department of Health where the President made such reorganization to
implement the measures in order to simplify the bureaucracy and make it more efficient. That was
justified here. Even to the extent that this office relating to the malaria under the DOH was
reorganized to the extent that some of the employees were affected by it. That was justified.
Another case relating to this, you have the case of Domingo vs. Zamora. In that case, the SC
emphasized that the power or the authority of the President to reorganize the national government
includes the power to group, to consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, service and activities, and to standardize salaries and
materials. That is included in the power of control. That was the Malaria case, a reiteration of the
Domingo vs. Zamora case where some powers were transferred to other agencies of the
government. Remember that the DECS is simply called now the Department of Education. Culture
and Sport functions of the DepEd have been transferred to other offices by the President without a
law requiring or providing for that. And this was justified by the Presidents power of control over
the executive department. Thus, SC said, the Presidents power to reorganize offices outside the
Office of the President proper is limited merely to transfer functions or agencies from office of the
president to departments or agencies and vice versa. The DECS is indisputably a department of the
executive branch. Even if the DECS is not part of the Office of the President, clearly authorizes the
President to transfer any function or agency of the DECS to the Office of the President. Under the
charter, the Philippine Sports Commission is attached to the Office of the President. Therefore, the
President has the authority to transfer functions and programs, and activities of DECS related to
sports development to the PSC, making E.O. 81 in this case a valid presidential issuance.
Commander in Chief powers of the President
Lets move on to Section 30. The Commander in Chief powers of the President. What are the powers
of the President as the Commander in Chief? You have the power to call on the Armed Forces of the
Philippines to prevent or suppress lawless violence; to declare Martial Law; to suspend the privilege
of the writ of Habeas Corpus; and to create Military Tribunals. Although the creation of the Military
Tribunals is not so provided in the constitution but she does have that power as the commander in
chief of the armed forces of the Philippines. On the matter of calling out the AFP, you take note that
it is discretionary on the President. And unlike the declaration of Martial Law or the suspensions of
the privilege of the writ of Habeas Corpus, as to the reason for the calling out or the justification for
the calling out, it is discretionary on the President. That is his political prerogative that is not subject
to judicial review neither subject to the revocation by Congress. As between in fact, the calling out
of armed forces and the declaration of Martial Law or the suspension of the privilege of the writ of
habeas corpus, the calling out is more potent against the prevention of lawlessness and violence
because that is not subject to limitations as like the limitations against the declaration of Martial
Law or the suspension of the privilege of the writ of habeas corpus. It is discretionary as it was
reiterated or sustained in those cases of Lacson vs. Perez. Do you recall that case the declaration of
state of rebellion, and the calling out of the AFP by the President? And do you also remember the
case of Sanlakas? These are the two cases sustaining the power of the President to call out the AFP.
Because after all, the President has in his authority to gather information pertaining to the state or
condition of the peace and order in the country. It is not subject to the limitations imposed on the
declaration of Martial Law or the suspension of the privilege of the writ of habeas corpus. That is
basically part of the military powers of the President.
How about the power to declare Martial Law or suspend the privilege of the writ of habeas corpus?
It is limited and there are specific grounds under which you can declare Martial Law. This is relevant
because of the issues relating to the declaration of Martial Law in Maguindanao. By the way, it was
reiterated in the cases of Lacson and Sanlakas that upon the lifting of Martial Law, the issue has
become moot and academic. But let us just go over the elements of the declaration of Martial Law;
what are the grounds for the declaration. Take note that there are only two conditions that should
occur that can justify the declaration of Martial Law or the suspension of the privilege of the writ of
habeas corpus. And those are when there is actual rebellion or invasion. Another requisite is that
when public safety requires. The President can place the entire country under Martial Law or any
part of the country under Martial Law. Just take note of the limitations for purposes for the bar
examinations that within 48 hours from the declaration of the Martial Law or the suspension of the
privilege of the writ of habeas corpus, the President must make a report to Congress, either in
person or in writing. If the Congress is not in session, within 24 hours, Congress must convene.
What should be the actions that Congress may take on the declaration of Martial Law or the
suspension of the privilege of the writ of habeas corpus? Either to revoke or extend if the 60-day
period has already expired. To revoke it, how many votes is needed? Majority voting jointly. It has to
be joint voting. In other words, it is easy for the Senate to be outnumbered by the House of the
Representatives because it is a joint voting. That is how urgent and important the issue is on the
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revocation of either the declaration of Martial Law or the suspension of the privilege of the writ of
habeas corpus.
Another limitation on the exercise of the power is the exercise of judicial review by the SC. Take
note that not only purely on question of law that the SC may review on the validity of the
declaration of Martial Law or the suspension of the privilege of the writ of habeas corpus. It includes
factual basis for the declaration of Martial Law or the suspension of the privilege of the writ of
habeas corpus. And the proper party is any citizen of the country. Meaning, even if he is not a
subject to the warrantless arrest pursuant to declaration of Martial Law or the suspension of the
privilege of the writ of habeas corpus, because the Constitution has expressly provided that at the
instance of any citizen the SC may look into the factual basis of the declaration of Martial Law or
the suspension of the privilege of the writ of habeas corpus, then a citizen is a proper party.
Remember the direct injury principle? That will not apply in this case by express provision of the
Constitution that any citizen is a proper party.
Another point you should take note is on the matter of the lifting of the declaration of Martial Law or
the suspension of the privilege of the writ of habeas corpus. By operation of aw, after 60 days, it is
automatically lifted unless it was lifted earlier or before the expiration of the 60-day period, or
unless it is revoked by Congress before expiration of the 60-day period. Question in the bar
examination, when is Martial Law lifted or the suspension of the privilege of the writ of habeas
corpus revoked or lifted? You have four instances. When it is lifted by the President before the
expiration of the 60-day period; when it is revoked by Congress; when it is revoked also by the SC in
the exercise of judicial review declared it as unconstitutional; and finally, by operation of law upon
expiration of the 60-day period.
My question is this, on the matter of reviewing the constitutionality of the declaration of Martial
Law or the suspension of the privilege of the writ of habeas corpus, which must come first, or
should it be simultaneous or successive - the Congress convening and reviewing whether or not
should it be revoked, or can you without waiting for the Congress to decide whether or not it should
be revoked, you can directly go the SC and ask the SC to review on the factual basis of the
declaration of Martial Law or the suspension of the privilege of the writ of habeas corpus? Or should
the SC wait for Congress to determine it should be revoked. Like what happen during the
declaration of the Martial Law in Maguindanao. Di ba it was simultaneous? It was the DOJ who
appeared before the Congress, reporting or justifying the declaration of Martial Law in Maguindanao
by the President. What happened to that session? Was there any conclusion reached that it was
valid or not valid? And then there was a case that was filed in the SC, questioning the validity of the
declaration of Martial Law. What happened to those cases? And there was already the lifting and all
the issues have become moot and academic. And I supposed all the cases are dismissed and
terminated. Thats my point. Which must come first, or should it be simultaneous or successive?
Would it not amount to, later, violating their prerogative of the Congress, because the prerogative
of revoking is with the Congress; and the prerogative of reviewing the factual basis of the
declaration of the Martial Law is also of the SC. Should each other wait until one makes the
decision? Supposedly, the Congress should immediately act within 24 hours although the President
has 48 hours to make the report. Anyways, those were not limitations of the declaration of Martial
Law or the suspension of the privilege of the writ of habeas corpus.
By the way, is it automatic that if Martial Law is declared, there will be also a suspension of the
privilege of the writ of Habeas Corpus? The answer is no. Its not automatic, unlike under the 1973
Constitution, there was this SC decision where the SC said that it is understood that with the
declaration of Martial Law, there should be a suspension of the privilege of the writ of habeas
corpus because it will defeat the purpose of the declaration of Martial Law if you cannot detain the
person who causes the disorder, the reason for the declaration of Martial law. But take note that the
constitution of 1987 has expressly provided that with the declaration of Martial Law, it does not
automatically suspend the privilege of the writ of Habeas Corpus. Which means that if Martial Law
is declared and you were arrested without a warrant of arrest, can you still apply for a writ of
habeas corpus? The answer is yes, you can still apply. Can the courts still issue the writs of habeas
corpus? The answer is yes. But the moment the military or the police upon bringing the accused to
court, pursuant to a writ of habeas corpus, would declare that the reason for his arrest is because
he is accused of the crime related to the reason for the declaration of Martial Law or the suspension
of the privilege of the writ of habeas corpus, like because he is charge with the crime of rebellion,
then immediately the court must desist from further proceeding the case because the court loses
jurisdiction in view of the suspension of the privilege of the writ of habeas corpus. Thats the effect
on the suspension of the privilege of the writ. It applies only applies to persons who are charged
with offenses related to the suspension of the privilege of the writ of habeas corpus. What could be
the charges or offenses? Rebellion or offenses inherent or related to the crime. And then of course,
you have invasion related to it. So if you are charged with offenses related to either rebellion or
invasion, then the court cannot proceed in hearing on your petition for a writ of habeas corpus.
Does this mean that you can be detained indefinitely? The answer is no, because under the
constitution, the arresting officers are given only a period of 72 hours within which to charge the
accused. Should they fail to file a case in court and judicially charge the accused, then the accused
must be released. But that is without prejudice later to the filing of the case, but you go through
now through the process of preliminary investigation where the accused is given a period of time
within which to file his controverting evidence.
67
In other words therefore, if the accused is charged with offenses not related to the reasons for the
suspension of the privilege of the writ of habeas corpus, like ordinary crimes for murder, robbery,
they have nothing to do with the suspension of the privilege of the writ of habeas corpus. Can the
court hear the case notwithstanding the suspension of the privilege of the writ of habeas corpus?
The answer is yes. That is what we meant by the suspension of the privilege of the writ of habeas
corpus applies only to person who are charged with offenses related to the grounds for the
suspension of the privilege of the writ of habeas corpus.
Another point to take note is that with the declaration of Martial Law or the suspension of the
privilege of the writ of habeas corpus, the right to bail is not suspended. You can still post bail. Only
that rebellion is a capital offense. As a general rule, if the guilt to the charge on the part of the
accused is strong, he cannot avail of the bail. But still he has the right to a hearing to determine
whether or not the evidence of guilt is strong in order for him to post bail. That right to bail is not
suspended with the suspension of the privilege of the writ of habeas corpus. That is in the case of
Trillanes. He applied for bail. At first it was denied, and then later it was granted after finding that
evidence against him is not strong. So he was allowed t post bail. But that is not already a matter
of right.
What else? We have in so far as the power to review the decisions of the military tribunals, in his
capacity as the commander in chief of the AFP. That is to maintain the supremacy of the civilian
authority over the military. So the decisions of the military tribunal are subject to review by the
President in his capacity as the commander in chief of the AFP.
Executive Clemency
Executive Clemency. This is a power granted to the President that only the President can exercise. It
cannot be delegated to his alter ego. What are those executive clemencies? You have the grant of
pardon, amnesty with the concurrence of Congress, commutations, reprieves, and revisions of fines
and forfeiture.
Let us first take up pardon. I think it may be relevant in so far as the grant of absolute pardon to
President Estrada that allowed him to run again as president of the republic. Pardon is discretionary
of the president. Once it is granted by the President, it is final and non appealable. You have a
decided case on this. Remember that when Estrada was granted pardon, the prosecution was
saying that they will be bringing it to the SC and question the validity of the grant of pardon by the
President to Mr. Estrada. You take note that in so far as the exercise of the power by the President
that is discretion of the President, and that is final and executory.
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University of San Carlos

Political Law Transcription

Political Law First Installment

In so far as concerned citizens group or as an organization, when is it a proper party? Do you

Political Law First Installment

Labo vs Comelec G.R. No. 105111 July 3, 1992

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Total number of votes cast for the partylist elections

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Political Law First Installment

Political Law First Installment

Political Law First Installment

Political Law First Installment

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