Two views on the effect of declaration of unconstitutionality of a law:

1. Orthodox view - An unconstitutional law is no law at all. It creates no office, it creates no rights, it creates no
obligation, it is not a source of protection. It is stricken out of the statute books.
It is treated as if it was never enacted at all.
2. Modern view (Operative Fact doctrine) - An unconstitutional law is not stricken out of the statute books. It
remains there but the court refuses to recognize it. This is because, before it is declared unconstitutional, it
enjoys the presumption of constitutionality. At that time, there may be parties who relied on the provisions of
that law. As to them it remains to be valid. This is an operative fact that cannot be denied. Because of this, the
declaration of unconstitutionality is not given retroactive effect. It is always given prospective application.
II - Requisites before foreign military bases, troops, or facilities may be allowed in the Philippines (Section 25,
Article XVIII, 1987 Constitution) like the Visiting Forces Agreement (VFA) with the US.
General Rule: No foreign military bases, troops, or facilities may be allowed in the Philippines.
Exception: They may be allowed provided that:
1. There must be a treaty duly concurred in by the Senate;
2. When Congress so requires, the treaty must be ratified by majority of the votes cast by the people in a
national referendum held for that purpose; and
3. The treaty must be recognized also as a treaty by the other contracting State.
Section 25, Article XVIII, 1987 Constitution, is a special provision that applies to treaties involving the presence
of foreign military bases, troops, or facilities in the Philippines, like the VFA. Whereas Section 21, Article VII, 1987
Constitution, is a general provision that applies to all kinds of treaties entered into by the Philippines, regardless
of subject matter, title or designation. (Bayan v. Zamora)
All "Balikatan" Exercises held in several parts of the Philippines are held under the auspices of the VFA.
Recent issue: The President is requesting for emergency powers to address the acute power
shortage that the country may experience in the coming years.
Constitutional provision to consider (Section 23 (2), Article VI, 1987 Constitution)
Comment on the provision: The President may not validly exercise emergency powers motu proprio. There must
be a law enacted by Congress authorizing the President to exercise emergency powers.
Requisites for Congress to validly delegate emergency powers to the President:
1.
2.
3.
4.

There must be war or other national emergency;

The delegation must be for a limited period only;
It is always subject to such restrictions as Congress may prescribe; and
It must be pursuant to a declared national policy.

If Congress will delegate emergency power to the President, a law is required for the purpose. However, if
Congress would like to withdraw or revoke the delegated emergency power to the President, another law is no
longer required; a mere resolution from Congress will suffice.
Limitation on the term of office of Elective Local Officials (Section 8, Article X, 1987 Constitution).
The term of office of local elective officials, except barangay officials which shall be determined by law, shall be
3 years and no such official shall serve for more than 3 consecutive terms. Renunciation of office for any length
of time shall not be considered an interruption in the continuity of the service for the full term for which he was
elected.
For this provision to apply, 2 conditions must concur: first, that the local official concerned must have been
elected for 3 consecutive terms to the same office, and second, that he was able to fully serve 3 consecutive
terms. Absent 1 or both of these conditions, the disqualification may not yet apply. (Borja jr. v Comelec)
There are 2 policies embodied in this Constitutional provision: first, to prevent the establishment of political
dynasties and, second, to enhance the freedom of choice of the people. (Borja jr. v Comelec)
Service of the recall term, since it is less than 3 years, is not to be considered as one full term for the purpose of
applying the disqualification under Section 8, Article X of the 1987 Constitution. (Mendoza v Comelec, December
17, 2002)
To constitute an interruption in the continuity of service it must involve loss of title to the office; mere inability to
perform the functions appurtenant to the office however short, is not an interruption. When one is placed under
preventive suspension, he still remains to be mayor although in the meantime he may not be able to perform
the functions appurtenant to the office because of a legal prohibition, thus, he still remains to be mayor; hence
the vice mayor will assume office not as mayor but merely as acting mayor. There is no interruption of his term
as mayor. (Aldovino jr. v Comelec)
When during his 2nd term as kagawad, sangguniang bayan, he assumed office as vice mayor due to the
retirement of the vice mayor, that is not equivalent to voluntary renunciation of office and therefore constitutes

an interruption in the continuity of service as kagawad, sangguniang bayan, that made him qualified to run
again as kagawad, sangguniang bayan, for the fourth time. (Montebon v Comelec)

Administrative Jurisidction of the Ombudsman:

Under RA 6770 (The Ombudsman Act of 1989), the Ombudsman has administrative disciplinary authority over
all public offices and employees, whether elective or appointive, national or local, except only with respect to
the impeachable officers, the members of Congress, and the members of the Judiciary. Hence, a public officer
may be charged administratively before the Office of the Ombudsman.
From the decision of the Ombudsman in an administrative case, appeal goes to the Court of Appeals. Section 27
of RA 6770 providing for direct appeal to the Supreme court from the decision of the Ombudsman in an
administrative case had already been declared unconstitutional by the Supreme Court. (Fabian v Ombudsman
Desierto)
In the exercise of his administrative jurisdiction, the Ombudsman or his Deputies may impose preventive
suspension. The maximum duration of the preventive suspension under RA 6770 is 6 months.
The Ombudsman has no authority whatsoever to impose preventive suspension in a criminal case; only the
court where the criminal information was filed may impose preventive suspension in a criminal case. (Section
13, RA 3019, as amended)
The Rome Statute
It is a multilateral treaty that established/created the International Criminal Court (ICC). The Philippines is the
117th State that ratified this Rome Statute. It is called a statute because it created a tribunal, according to Dean
Raul Pangalangan of UP Law.
The offenses falling under the jurisdiction of this ICC are; genocide, crimes against humanity, war crimes and the
crime of aggression.
The Principle of Complementarity is an important principle. It states that the ICC shall be complementary to
national criminal jurisdiction. It gives primacy to national courts, meaning to say that if the court of one State
already assumed jurisdiction over a person accused of having committed any of the four offenses, the ICC will no
longer assume jurisdiction. Exceptions: first, If the proceeding in the national court is conducted to protect the
accused from liability; or second, if it is not conducted independently or impartially, in which case, the ICC may
still assume jurisdiction.
Jus Cogens Norm (Compelling law)
A peremptory (mandatory) norm of general international law which is recognized and accepted by the
international community of States as a norm that does not permit of any derogation, and which can be replaced
or modified only by a subsequent norm of general international law of the same character.
Examples: the prohibition against the use of force under the UN charter, the law on genocide, the right to selfdetermination of peoples.
Under the Vienna Convention on the Law of Treaties, a treaty that violates a Jus Cogens norm should be
inviolated.
Erga Omnes Obligation
An obligation of a state towards the international community of states as a whole.
Between an erga omnes obligation and the obligation of a state towards another state pursuant to a treaty, an
erga omnes obligation is superior.
Once it is established that it is a jus cogens norm, then it becomes an erga omnes obligation of a State.
Example: The law on genocide is an established jus cogens norm, therefore, it becomes an erga omnes
obligation of a State not to commit genocide, or not to allow genocide to be committed anywhere.
These two are developments in international law which evolved only after World War 2. That's why in the case of
Vinuya v Exec. Sec. Romulo (the case involving the "comfort women" in the Philippines during World War 2) the
Supreme Court did not agree that the duty of the State to espouse the claims of its national against a foreign
state has already evolved into a jus cogens norm and therefore, has become an erga omnes obligation.
In that same ruling, the Court further clarified that even the International Law Commission (ILC) concluded in
1963 that there is not as yet any generally accepted criterion by which to identify a general rule of international
law as having the character of jus cogens.

The Public Assembly Act (BP 880)

It is the law that regulates the holding of rallies, demonstrations and public assemblies. Obviously, it is enacted

pursuant to the police power of the state. Under this law, if one will hold a rally or public assembly, one must
first secure permit from the local authorities. However, there are instances when one may hold a rally without
permit from the local authorities, as:
If the rally is to be held in a private place (only consent of the owner is needed);
If the rally is to be held in the campus of a state university or college; and
If the rally is to be held in a freedom park. For this matter all cities and municipalities are mandated to
establish/designate a freedom park where one may hold a rally even without permit from the local authorities.
Political rallies during the campaign period are governed by the Omnibus Election Code (BP 881), not the Public
Assembly Act.
Under BP 880, if within 48 hours from the application of a permit to hold a rally, no acton was taken by the local
authorities, the permit is deemed granted.
If the local authority refuses to issue the permit, or if he wants to change the venue, he is required to state the
reason for such refusal, or change of venue, to the applicant. The only ground for the local authority to validly
refuse to issue the permit, or change the venue, is that there is a clear and present danger of a substantive evil
that the state has the right or duty to prevent or suppress if the permit is to be granted, such as imminent public
disorder or violence.
Be reminded that any act of government that tends to impair public assembly, freedom of expression and other
fundamental freedoms, comes to the Court with a heavy presumption of unconstitutionality. In Reyes v
Bagatsing, the Court held that it is not for the applicant to guarantee that the rally will be peaceful, but for the
mayor who refuses to issue the permit to justify his refusal, as his act of refusal comes to the court with a heavy
presumption of unconstitutionality.
The local authority may not validly refuse to issue the permit, or change the venue of the rally, without
informing the applicant of the reason for the refusal to issue the permit or change the venue of the rally. To do so
without informing the applicant, would constitute grave abuse of discretion on his part. (IBP v Mayor Atienza)
BP 880 is merely a content-neutral regulation. It does not prohibit the holding of rallies or public assemblies; it
merely regulates. (Bayan v Exec. Sec. Ermita)
The Calibrated Pre-emptive Response (CPR) policy adopted by the Arroyo administration in dealing with rallies or
public assemblies which, according to Exec. Sec. Ermita simply means the strict implementation of the "no
permit, no rally rule," is a superfluity if it means no more than "maximum tolerance" defined by BP 880, as it will
only confuse people. However, if it means more than "maximum tolerance" as defined by BP 880, then it is
unconstitutional, as it violates freedom of expression. (Bayan v Exec. Sec. Ermita)
"Maximum tolerance" means the highest degree of restraint that the police, the law enforcement officers and
the military must observe in dealing with rallies or public assemblies, or in the dispersals thereof, so that under
this rule, for as long as the demonstrators are unarmed or they do not exhibit overt acts of violence, although
they tend to be unruly, or their speeches show to be incendiary, provocative, inflammatory, that is not enough
justification for the dispersal of the rally or for the arrest of the demonstrators. Obviously the Public Assembly
Act (BP 880) adheres to the clear and present danger rule.

Republic Act 9189 (The Absentee Voters Act of 2003)

Under this law, overseas Filipinos, permanent residents in a foreign country, may be allowed to register and vote
before our embassies and consulates abroad, for President, Vice President, Senators, and Party-list
Representatives provided that, before they register, they will have to execute an affidavit stating therein that
within 3 years after such registration, they will return to the Philippines and resume their residence in the
country.
In Makalintal v Comelec, the Court held that this is now the exception to the residence qualification of a voter
under Section 1, Article V (Suffrage) of the 1987 Constitution. There is a clear intent on the part of the framers of
the 1987 Constitution to enfranchise as many overseas Filipinos in recognition of their tremendous contributions
to the national economy. It is but fair that their voices should be heard on who should be our leaders.

Prohibition against the Payment of Additional, Double or Indirect Compensation

Sec. 8, Art. IX-B of the 1987 Constitution provides that no elective or appointive public officer or employee shall
receive additional, double or indirect compensation, unless specifically authorized by law, nor accept without the
consent of the Congress, any present, emolument, office or title of any kind from any foreign government.
Pensions and gratuities shall not be considered as additional, double or indirect compensation.
Does the payment of monthly Representation and Transportation Allowance (RATA) to certain officers of
Government-Owned or Controlled Corporations (GOCCs) constitute additional, double or indirect compensation
prohibited by the Constitution?
No. RATA is distinct from salary as a form of compensation. Unlike salary which is paid for services rendered,
RATA is a form of allowance intended to defray expenses deemed unavoidable in the discharge of office. Hence,
RATA is paid only to certain officials who, by the nature of their offices, incur representation and transportation

expenses. Indeed, aside from the RATA that they have been receiving, the grant of RATA for every board meeting
they attended, in their capacity as members of the Board of Directors of the GOCC, in addition to their per
diems, does not violate the constitutional proscription against double compensation (Singson v. COA, 627 SCRA
36 [2010])
Doctrine of State Immunity from Suit
When is a suit against a public officer deemed to be a suit against the State itself and, therefore, should be
dismissed invoking State immunity from suit?
General Rule: The Doctrine of State Immunity from Suit applies to complaints filed against public officers in the
performance of their duties. This is because, in such a case, the public officer merely acts as an agent of the
State and. Therefore, his acts are deemed to be the acts of the principal itself, the State, following the principle
of agency.
Exceptions: This rule will not apply if the public officer is charged in his official capacity for acts that are unlawful
and injurious of the rights of others. Public officers are not exempt in their personal capacity from liability arising
from acts committed in bad faith.
Neither does the rule apply where the public officer is charged in his personal capacity, not in his official
capacity, although the act complained of was committed while he occupied a public position. (Lansang v. CA)

The Rule-Making Power of the Supreme Court (Sec. 5[5], Art. VIII, 1987 Constitution)
Among the powers of the Supreme Court is the power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts, admission to the practice of
law, the integrated bar, and legal assistance to the underprivileged.
Considering that the GSIS, under its Charter (Sec. 39 of RA 8291), is exempt from all taxes, assessments, fees,
charges or duties of all kinds, is it also exempt from the payment of legal fees?
No. The provision in its Charter exempting the GSIS from all taxes, assessments, fees, charges or duties of all
kinds cannot operate to exempt it from the payment of legal fees. This was because, unlike the 1935 and 1973
Constitutions, which empowered Congress to repeal, alter or supplement the rules of the Supreme Court
concerning pleading, practice and procedure, the 1987 Constitution removed this power from Congress. Hence,
the Supreme Court now has the sole authority to promulgate rules concerning pleading, practice and procedure
in all courts. Any exemption from the payment of legal fees granted by the Congress to government-owned or
controlled corporations (GOCCs) and local government units (LGUs) will necessarily reduce the Judiciary
Development Fund (JDF) and the SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the
Courts guaranteed fiscal autonomy and erodes its independence. (GSIS v. Heirs of Fernando P. Caballero, 632
SCRA 5 [2010])

The Strict Scrutiny Standard

The Court has found the strict scrutiny standard, an American constitutional construct, useful in determining the
constitutionality of laws that tend to target a class of things or persons. According to this standard, a legislative
classification that impermissibly interferes with the exercise of fundamental rights or operates to the peculiar
class disadvantage of a suspect class s presumed unconstitutional. The burden is on the government to prove
that the classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest. Later, the strict scrutiny standard was used to assess the validity of laws dealing
with the regulation of speech, gender, or race as well as others fundamental rights, as expansion from its earlier
applications to equal protection. (Disini, Jr., et al. v. The Secretary of Justice, G.R. No. 203335, Feb. 11, 2014, En
Banc [Abad])
From the above, it is clear that the strict scrutiny standard is employed by the Court to test the validity of laws
that are alleged to have violated the equal protection clause guaranteed by the Bill of Right although later its
application was expanded to apply as well to assess the validity of laws dealing with the regulation of speech,
gender, or race as well as other fundamental rights.
In the Disini case cited above (involving the challenge to the provision of the Cybercrime Prevention Act of 2012
[R.A 10175] penalizing illegal access to computer systems), the Court did not apply this standard since no
fundamental freedom like speech is involved in punishing what is essentially a condemnable act accessing the
computer system of another without right.
In that same case, the Court has an occasion to clarify also that the Cybercrime law will not jeopardize the work
of ethical hackers (those who employ tools and techniques used by criminal hackers but would neither damage
the target systems nor steal; information).
----What is a get out of jail free card?
It is a stipulation in an agreement between a client and an ethical hacker defining the extent of the search, the
methods to be used, and the system to be tested by the latter. (Disini, Jr., et al. v. The Secretary of Justice, G.R.
No. 203335, Feb. 11, 2014, En Banc [Abad])

The Doctrine of Overbreadth

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation,
may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms.
Should the provision of the Cybercrime Prevention Act of 2012 (R.A. 10175) penalizing Data Interference (the
intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or
electronic data message, without right, including the introduction or transmission of viruses) be declared
unconstitutional applying the overbreadth doctrine, as it intrudes into the area of protected speech and
expression, creating a chilling and deterrent effect on these guaranteed freedoms?
No. The provision does not encroach on these freedoms at all. It simply punishes what essentially is a form of
vandalism, the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other peoples computer systems and private documents.
All penal laws, like the cybercrime law, have an inherent chilling effect, an in terrorem effect or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what
is proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to
render the State powerless in addressing and penalizing socially harmful conduct. Here, the chilling effect that
results in paralysis is an illusion since the provision clearly describes the evil that it seeks to punish and creates
no tendency to intimidate the free exercise of ones constitutional rights.
Besides, the overbreadth doctrine places on petitioners the heavy burden of proving that under no set of
circumstances will the provision will be valid. (Disini, Jr., et al. v. The Secretary of Justice, G.R. No. 203335, Feb.
11, 2014, En Banc [Abad])

The Right against Self-incrimination

If an accused is already covered by an immunity statute, may he still validly refuse to testify invoking his right
against self-incrimination?
No. That is the very purpose of an immunity statute - the accused is granted some kind of immunity in exchange
for his testimony so that even if in the course of his testimony he might incriminate himself, no harm can come
upon him anymore.
Immunity statutes are of two types, i.e., transactional immunity and the use-and-derivative- used immunity but
the first is broader in the scope of its protection.
By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of the act or
transaction. In contrast, by the grant of use-and-derivative-use immunity, a witness is only assured that his or
her particular testimony and evidence derived from it will not be used against him or her in a subsequent
prosecution.
Immunity statutes should be construed liberally in favor of the accused and strictly against the state as it is not
a bonanza from the government. Those who have been granted immunity paid a high price for it the surrender
of their precious right to remain silent. (Mapa, Jr. v. Sandiganbayan, 231 SCRA 783, 1994, En Banc [Puno])

The Power of Augmentation

General Rule: No law shall be passed authorizing any transfer of appropriations. (Sec. 25[5], Art. VI, 1987
Constitution)
Exception: The President, the Senate President, the Speaker of the House of Representatives, the Chief Justice,
and the Heads of Constitutional Commissions may, by law, be authorized to augment any item in the general
appropriations law for their respective offices from savings in other items of their respective appropriations.
(Sec. 5[5], Art. VI, 1987 Constitution)
Cross-border transfer of funds is not allowed. Example: Savings from any of the executive offices (like the Office
of the President) may not be transferred to augment appropriations for any of the Constitutional Commissions,
like the Commission on Audit (COA) or the Civil Service Commission (CSC). This is known as the cross-border
transfer of funds which is prohibited.
This is one reason why the Disbursement Acceleration Program (DAP) was declared unconstitutional by the SC.
There was an unauthorized cross-border transfer of funds.