CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
June 26, 2012
JUDICIAL ELABORATION OF THE CONSTITUTION
Well start with judicial elaboration of constitutional provisions. The rules
on construction of constitutional provisions are differentiated from the
rules on construction of statutes simply because it is the Constitution
and it does not follow the normal rules of statutory construction. It follows
separate rules. The first of these rules is that
constitutional provisions are considered to be self-executing
because they should not be made dependent upon an enabling act of
Congress for them to be a source of a right.
A case in point would be Manila Prince Hotel vs. GSIS (G.R. No.
122156, February 3, 1997) which gives us the principle that
constitutional provisions should be direct sources of rights. If you
remember, this case involves Section 10, Article 12 of the 1987
Constitution, or the so-called Filipino First Policy. The issue was
whether a Filipino corporation who lost in the bidding for GSIS shares
would be entitled to relief because it is a Filipino corporation buying
Filipino property, which is considered to be patrimonial [referring to
Manila Hotel]. The Malaysian corporation objected on the ground that
Section 10 is not a source of right. The SC said that, as a general rule,
the provisions in the Constitution should be considered self-executing,
meaning, they should be direct sources of right. Thus, in case of
violation, the court can grant a relief. The only exception is that if by the
intent of the provision or by express requirement there must have to be
an enabling law for it to be a source of right. The example given there
are the provisions of Article 2 (Declaration of Principles and State
Policies) which are merely declarations, and cannot be direct sources
of rights.
MANILA PRINCE HOTEL vs. GSIS
A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable
except by the authority from which it emanates. It has been defined as the
fundamental and paramount law of the nation. It prescribes the permanent
framework of a system of government, assigns to the different departments their
respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with which
all private rights must be determined and all public authority administered. Under
the doctrine of constitutional supremacy, if a law or contract violates any norm
of the constitution that law or contract whether promulgated by the legislative or
by the executive branch or entered into by private persons for private purposes is
null and void and without any force and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it is deemed written in
every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles.
Their provisions command the legislature to enact laws and carry out the
purposes of the framers who merely establish an outline of government providing
for the different departments of the governmental machinery and securing certain
fundamental and inalienable rights of citizens. A provision which lays down a
general principle, such as those found in Art. II of the 1987 Constitution, is usually
not self-executing. But a provision which is complete in itself and becomes
operative without the aid of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional provision is self-executing if
the nature and extent of the right conferred and the liability imposed are fixed by
the constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action.
xxx Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as
not to make it appear that it is non-self-executing but simply for purposes of style.
But, certainly, the legislature is not precluded from enacting other further laws to
enforce the constitutional provision so long as the contemplated statute squares
with the Constitution. Minor details may be left to the legislature without impairing
the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the constitution,
further the operation of such a provision, prescribe a practice to be used for its
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enforcement, provide a convenient remedy for the protection of the rights secured
or the determination thereof, or place reasonable safeguards around the exercise
of the right. The mere fact that legislation may supplement and add to or
prescribe a penalty for the violation of a self-executing constitutional provision
does not render such a provision ineffective in the absence of such legislation.
The omission from a constitution of any express provision for a remedy for
enforcing a right or liability is not necessarily an indication that it was not intended
to be self-executing. The rule is that a self-executing provision of the constitution
does not necessarily exhaust legislative power on the subject, but any legislation
must be in harmony with the constitution, further the exercise of constitutional
right and make it more available. Subsequent legislation however does not
necessarily mean that the subject constitutional provision is not, by itself, fully
enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second
par., of Art. XII is implied from the tenor of the first and third paragraphs of the
same section which undoubtedly are not self-executing. The argument is flawed.
If the first and third paragraphs are not self-executing because Congress is still to
enact measures to encourage the formation and operation of enterprises fully
owned by Filipinos, as in the first paragraph, and the State still needs legislation
to regulate and exercise authority over foreign investments within its national
jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the
second paragraph can only be self-executing as it does not by its language
require any legislation in order to give preference to qualified Filipinos in the grant
of rights, privileges and concessions covering the national economy and
patrimony. A constitutional provision may be self-executing in one part and non-
self-executing in another.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is
a mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable. When our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering national economy and patrimony, the
State shall give preference to qualified Filipinos, it means just that qualified
Filipinos shall be preferred. And when our Constitution declares that a right exists
in certain specified circumstances an action may be maintained to enforce such
right notwithstanding the absence of any legislation on the subject; consequently,
if there is no statute especially enacted to enforce such constitutional right, such
right enforces itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is a remedy. Ubi
jus ibi remedium.
So in the case of Pamatong vs. COMELEC (G.R. No. 161872, April 13,
2004), petitioner questioned the declaration by the COMELEC that he is
a nuisance candidate [thereby denying due course to his certificate of
candidacy]. He declared that it was a violation of a policy under Article
2 (on equality). He said that it was a form of harassment. The SC said
that it is not a self-executing provision.
PAMATONG vs. COMELEC
Implicit in the petitioners invocation of the constitutional provision ensuring "equal
access to opportunities for public office" is the claim that there is a constitutional
right to run for or hold public office and, particularly in his case, to seek the
presidency. There is none. What is recognized is merely a privilege subject to
limitations imposed by law. Section 26, Article II of the Constitution neither
bestows such a right nor elevates the privilege to the level of an enforceable right.
There is nothing in the plain language of the provision which suggests such a
thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution,
entitled "Declaration of Principles and State Policies." The provisions under the
Article are generally considered not self-executing, and there is no plausible
reason for according a different treatment to the "equal access" provision. Like
the rest of the policies enumerated in Article II, the provision does not contain any
judicially enforceable constitutional right but merely specifies a guideline for
legislative or executive action. The disregard of the provision does not give rise to
any cause of action before the courts.
Another example would be Section 32 in relation to Section 1, Article 6
(Legislative Department) on initiative and referendum. However, under
Section 32 there must be an enabling law for the people to exercise their
right.
Section 1. The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives,
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
except to the extent reserved to the people by the provision on initiative and
referendum.
Section 32. The Congress shall, as early as possible, provide for a system of
initiative and referendum, and the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject any act or law or part thereof
passed by the Congress or local legislative body after the registration of a petition
therefor signed by at least ten per centum of the total number of registered voters,
of which every legislative district must be represented by at least three per
centum of the registered voters thereof.
So unless by intent or by clear terms of the provision there is a need for
enabling law, all provisions of the Constitution are self-executing.
Now, the second rule would be
constitutional provisions must have to be construed
prospectively (unlike penal statutes)
If you remember under the so-called Miranda Rights, first incorporated in
the 1973 Constitution, any extrajudicial confessions which were taken
before the 1973 Constitution were not covered. Thus, if these
statements were taken without the accused being given the Miranda
Warning and without being accorded Miranda Rights those statements
are still admissible even if the 1973 Constitution had already taken
effect. Again, this must be applied prospectively. Theres no such thing
as retroactive application of a constitutional provision.
Again, if by the tenor of the provision theres supposed to be retroactive
application [you apply it as such]. First would be under the Bill of Rights
on the imposed death penalty. When the 1987 Constitution took effect,
all death penalties already imposed were automatically commuted to life
[imprisonment or reclusion perpetua?]. Congress, however, is given the
power to reinstate it if it so desires and upon defining what should
constitute heinous offenses. Second example of retroactive application
would be the expanded definition of natural born citizens under Section
2, Article 4. The 1973 and 1987 Constitutions are differently worded in
that the latter has a specific addition that states those born before
January 17, 1973, of Filipino mothers [and foreigner fathers], who elect
Philippine Citizenship upon reaching the age of majority are considered
Filipinos. So this with retroactive application. Unless it is clear from the
provision or by intent that they be applied retroactively, constitutional
provisions are generally applied prospectively.
In Taada vs. Angara (272 SCRA 18), there was also an issue on the
construction of constitutional provisions. We have 2 principles there.
First is that the Constitution must be construed in its dynamic sense, not
static. A good example of a constitutional provision which is dynamic in
application is the Bill of Rights, generally. If you notice, say, freedom of
expression or privilege against self-incrimination or all those
fundamental rights in the Bill of Rights, they are practically similarly
worded as the 1935 Constitution. But based on your readings, you have
noticed that on the same provisions and on similar set of facts but raised
at different times, the Supreme Court would have different
interpretations of the same provisions (like the free exercise clause).
You remember the Flag salute cases? They pertain to the same
constitutional provision and act which they [children] refused to do on
account of their religious belief. In the old case the SC said it is not a
violation of the Constitution but in the later case of Ebranilag vs. Division
Superintendent the SC said that it is a violation of the freedom of
religion, meaning, by mere lapse of time the interpretation has changed
because it is widely dependent upon the demands of the time. So a
measure of a good provision of the Constitution is that it is susceptible of
such interpretation. That leads us to the next rule
that constitutional provisions should not only be applicable to
the demands of the present but also to the uncertainties or
vagaries of the future.
That is from the ruling of Taada vs.Tuvera and also of Kida vs. Senate
(G.R. 196271, 28 February 2012). Kida refers to the postponement of
the ARMM elections. So there were 2 things mentioned there on the
construction of constitutional provisions. The first is that the provisions
should be considered as a continuing fundamental law which is
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supposed to be interpreted not only to the demands of the present but
also to the uncertainties or vagaries of the future. The other principle laid
down in Kida reiterates the ruling in the case of Domino vs. COMELEC,
310 SCRA 546 (1999) that words and phrases of the Constitution must
have to be interpreted in their ordinary dictionary meaning. The
Constitution is a document for everybody because its supposed to limit
State authority and grants civil liberties. Thats why the intent is to take
these words and phrases in their ordinary meaning.
KIDA vs. SENATE
That the ARMM elections were not expressly mentioned in the Transitory
Provisions of the Constitution on synchronization cannot be interpreted to mean
that the ARMM elections are not covered by the constitutional mandate of
synchronization. We have to consider that the ARMM, as we now know it, had not
yet been officially organized at the time the Constitution was enacted and ratified
by the people. Keeping in mind that a constitution is not intended to provide
merely for the exigencies of a few years but is to endure through generations for
as long as it remains unaltered by the people as ultimate sovereign, a constitution
should be construed in the light of what actually is a continuing instrument to
govern not only the present but also the unfolding events of the indefinite
future. Although the principles embodied in a constitution remain fixed and
unchanged from the time of its adoption, a constitution must be construed as a
dynamic process intended to stand for a great length of time, to be progressive
and not static.
To reiterate, Article X of the Constitution, entitled Local Government, clearly
shows the intention of the Constitution to classify autonomous regions, such as
the ARMM, as local governments. We refer to Section 1 of this Article, which
provides:
Section 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
The inclusion of autonomous regions in the enumeration of political subdivisions
of the State under the heading Local Government indicates quite clearly the
constitutional intent to consider autonomous regions as one of the forms of local
governments.
That the Constitution mentions only the national government and the local
governments, and does not make a distinction between the local government
and the regional government, is particularly revealing, betraying as it does the
intention of the framers of the Constitution to consider the autonomous regions
not as separate forms of government, but as political units which, while having
more powers and attributes than other local government units, still remain under
the category of local governments. Since autonomous regions are classified as
local governments, it follows that elections held in autonomous regions are also
considered as local elections.
The petitioners further argue that even assuming that the Constitution mandates
the synchronization of elections, the ARMM elections are not covered by this
mandate since they are regional elections and not local elections.
In construing provisions of the Constitution, the first rule is verba legis, that is,
wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed. Applying this
principle to determine the scope of local elections, we refer to the meaning of
the word local, as understood in its ordinary sense. As defined in Websters
Third New International Dictionary Unabridged, local refers to something that
primarily serves the needs of a particular limited district, often a community or
minor political subdivision. Obviously, the ARMM elections, which are held
within the confines of the autonomous region of Muslim Mindanao, fall within this
definition.
To be sure, the fact that the ARMM possesses more powers than other
provinces, cities, or municipalities is not enough reason to treat the ARMM
regional elections differently from the other local elections. Ubi lex non distinguit
nec nos distinguire debemus. When the law does not distinguish, we must not
distinguish.
In that case of Domino the SC construed the term residence in relation
to qualifications for public office. As we all know, it means domicile. So
that would be the exception, that is, if the intent of the provision is to use
the technical meaning; the general rule being ordinary dictionary
meaning. Now in this case of Kida the issue was whether or not the
provisions in the Constitution calling for the synchronization of national
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
and local elections would include regional elections. The argument of
petitioner is that it is regional, not national or local. The SC said that in
ordinary understanding the term local election refers to an election
regarding a locality (meaning a community, anything less than national
scope). Even if its a barangay election, which is held nationwide, but
because the concern or interest of a barangay election involves only a
locality, it is still a local election. Now in its ordinary meaning, when you
say local government, it also pertains to government other than the
national government. So a regional government is a local government
and is therefore subject to local elections. Thus the law postponing the
ARMM elections was held to be not unconstitutional.
THEORY OF JUDICIAL REVIEW
In relation to judicial elaboration is the concept of JUDICIAL REVIEW.
You all know that judicial review is a theory that allows a court to
exercise its DUTY, not a power, to allocate constitutional boundaries on
the exercise of power based on the doctrines of separation of powers,
checks and balances as well as the concept of balancing of power. The
Constitution is supposed to be a document which limits and allocates
powers to the different branches of government. If an officer or
department has encroached into another, the court is supposed to re-
allocate that and exercise its judicial power. Its termed power but,
technically, its supposed to be a duty because when the SC eventually
exercises judicial power it is not the supremacy of the judiciary which
shall govern but it is the supremacy of the Constitution that prevails.
The 1987 Constitution has incorporated judicial power under Section 1,
Article 8. If you remember, the first phrase there is the traditional
definition of judicial power to settle actual controversies involving rights
which are legally demandable and enforceable. The second phrase is
actually judicial review. It grants the courts to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government. Now, in the exercise of judicial review, we have always
maintained that it is not to be exercised lightly by the courts because of 2
concepts:
1. presumption of constitutionality; and
2. co-equality
It is presumed that all laws and statutes as well as acts of the President
are not unconstitutional. So the courts should not at all times exercise
judicial review. Second is the concept of co-equality where the 3
branches are considered co-equal, i.e. one should not arrogate unto
another its authority. But again if theres really a need to exercise review
powers the courts should not shirk from its duty and obligation in order to
re-allocate these constitutional limitations.
Now, when should the courts exercise judicial review? Basically, there
are 4 conditions:
1. There must be an appropriate case or controversy
2. It must be raised by the proper party
3. Made at the earliest opportunity
4. Must be the very lis mota of the case.
appropriate case or controversy
In some decisions, the Court would refer to this element as ripe for
judicial adjudication. It is ripe for judicial adjudication if there was a
violation already. To imagine it is to relate it to your Civil Procedure
rules. What is a cause of action? In Civil Procedure, the subject of
litigation usually involves a private right. Judicial review often involves a
public right. Just like in civil cases, there must have to be a cause of
action on the right of that person invoking judicial review to protect a
public right.
raised by the proper party
By analogy, refer to a person in a civil case as a real party in interest. In
judicial review, if a party has no interest in the case he has no legal
standing. In a public suit or public interest case, the person must have
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legal standing to file a petition. What do we mean by he must have legal
standing? A person must have suffered an injury, or there is a
threatened suffering, if the act or statute sought to be declared
unconstitutional is not treated.
Now, there a lot of discussions on legal standing in different contexts. In
ordinary discussions, we refer to it as CITIZENS SUIT. A suit is brought
by a citizen and that citizen must have, ordinarily, legal standing. He
must suffer direct injury or there is threatened suffering. It must be direct
and not indirect. Otherwise, he will not have any interest in the outcome
of the case.
There are instances where indirect injury is allowed, the most common
of which is a TAXPAYERS SUIT. A taxpayer may be given legal
standing to question the constitutionality of a law which involves
expenditures of public funds. The reason why a taxpayer is given legal
standing in so-called taxpayers suits is because they involve public
expenditure. If the question is on the constitutionality of the appropriation
or, if theres already an appropriation, the constitutionality of the
expenditure implemented by the executive, then a taxpayer may be
given legal standing.
The third concept allowable, even if theres no actual and direct injury,
would be the so-called VOTERS SUIT. If the question involved is ones
right to suffrage, the right to vote and be voted for in a public office, that
person may be given legal standing as a voter.
NOTE: Taxpayers suit and voters suits are limited in application
because not all cases can be brought if theres no issue on public
expenditure or right of suffrage, respectively.
The last of the allowable legal standing cases is under the so-called
doctrine of TRANSCENDENTAL IMPORTANCE. When there is 1.
public transfer of funds or assets; 2. theres a clear case of constitutional
disregard; 3. there is lack of any party with appropriate legal standing,
then the petition will be allowed under this doctrine.
Upon compliance with these requisites, there may be a petition allowed
under the doctrine of transcendental importance though s/he may not be
a party directly injured who would have the proper legal standing.
The doctrine is usually applied by discretion of the court. So the usual
bar examination question (on judicial review), when you are asked to
decide whether or not the law or act in question is constitutionalwhat
the examiner would actually want to know is your understanding of the
element or the provision. The examiner does not actually want you to
decide whether it is constitutional or not, as in most cases, there are no
decided cases yet. The examiner is just testing you of your knowledge
as to the provision or elements. The exception here is if there is already
a decision. The examiner does not want you to decide the
constitutionality because you are not yet [a member of] the Supreme
Court, unless of course if there has been a case previously decided by
the Court concerning the same issue.
made at the earliest opportunity
On the third element that the case must be raised at the earliest
opportunity - the reason for this element is that if the question has
already become moot, the court does not have to exercise judicial
review since the party bringing the action will never benefit or suffer from
the act or statute complained of. It must not be too late.
Now when does one have to raise it? Under the rule on pleadings (as in
ordinary cases), the general principle followed is that you cannot change
the theory of your case for which reason, if your intent or cause is based
on the unconstitutionality of an act or law, you must have to raise it at
the earliest opportunity, meaning, when you are in the trial court.
Otherwise, if you have not raised it in the trial court, or had raised it only
eventually, your issue will not be allowed as you have been too late and
you cannot by then change the theory of your case.
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
Remember the case of Philippine Airlines [Editors note: Yrasuegi vs.
PAL, 569 SCRA 467, 2008] involving the dismissal of the steward who
failed to maintain the weight requirement as required in his contract (the
plane consumes more gasoline if they weigh more). Said steward, at
first, was given a warning to comply with said requirement. But after
having failed to comply with it again (and for the last time he was given),
he was terminated. Before the Labor Arbiter, he questioned his dismissal
based on the applicable grounds and not upon constitutional provisions.
On appeal to the Supreme Court, however, he changed his theory and
asserted that PALs weight policy for flight attendants violated the Equal
Protection Clause as it discriminated against fat people.
The Supreme Court said that one, the case in question concerns a
relationship between two individuals; hence, the Bill of Rights does not
apply. The state has nothing to do with it as constitutional proscriptions
would never be applicable to cases involving private individuals (as a
general rule), the flight attendants and PAL being such individuals in this
case. The Bill of Rights is a limitation to the States power.
The other reason is that you cannot change your theory on appeal. One
must have to raise the question at the onset. Thus, if you are an
accused charged with a crime and as your defense you raise the
constitutionality of the criminal law, you must raise it before the trial
courtthis being the earliest opportunity.
YRASUEGI vs. PAL
To make his claim more believable, petitioner invokes the equal protection clause
guaranty of the Constitution. However, in the absence of governmental
interference, the liberties guaranteed by the Constitution cannot be invoked. Put
differently, the Bill of Rights is not meant to be invoked against acts of private
individuals. Indeed, the United States Supreme Court, in interpreting the
Fourteenth Amendment, which is the source of our equal protection guarantee, is
consistent in saying that the equal protection erects no shield against private
conduct, however discriminatory or wrongful. Private actions, no matter how
egregious, cannot violate the equal protection guarantee.
must be the very lis mota of the case
The last would be that: it must be the very lis mota of the case.
This means the court cannot to do anything to dispose of the case
except to rule on the constitutional question.
If the petition is not appropriate, can the petition be dismissed? Yes.
If the petitioner has no legal standing, can it be dismissed? Yes.
If the petition was filed too late or it was filed prematurely? Yes.
(In said cases) The need to resolve the issue of constitutionality is not
necessary.
But if the case is appropriate, the party has legal standing and it is raised
at the earliest opportunity, and there is no other way for the court to
dispose of the case except to dispose of the constitutional question,
then, it becomes the very lis mota of the case. This means the
constitutional issue (posed) is the very lis mota of the case.
Functions of Judicial Review:
CHECKING, LEGITIMATING and SYMBOLIC CASES
There is nothing much in here except that when a court dismisses a
petition on the constitutional question, they are now resolving the
constitutional question raised. (But) That question can be raised again
because there was no definitive ruling on that issue.
But if the court resolves the constitutional question and hears and rules
that the law is not unconstitutional (constitutional) then there is, at least
for the moment, a definite ruling that that act or statute complained of is
constitutional. That should rest the question, for a moment, because,
again, you all know that in political questions or issues, depending on
the demands of the time, the Supreme Court may interpret the same
provision and may have to reverse an earlier ruling. But at least for the
moment, it is settled.
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Checking means the Court checks whether the law is constitutional or
not. If it is unconstitutional, the Court follows what is merely provided the
Civil Code that if the statute is inconsistent with the Constitution, the
latter shall prevail.
The symbolic or teaching function (of Judicial Review) is an exercise
of the discretion by the Court. Even if there is no more need to resolve
that petition, the court will still exercise judicial review to lay down rules
so these may serve as guides to the bench and bar as well as the public
in order to guide them in their future action. When the issue becomes
moot or there is no more need to exercise judicial review, there is no
need to resolve the same because the party petitioner will either never
be benefited by a favorable decision or damaged by the act or statute
subject of the petition. Nonetheless, if the court thinks that there may
be a repetition of the question (and another petition would have to be
filed in the future), in order to rest that issue now, the court may exercise
the symbolic or teaching function. Again, this is exercised on account of
the discretion of the court.
However, the application of the moot-and-academic principle is subject to several
exceptions already recognized in this jurisdiction. In David v. Macapagal-Arroyo,
the Court has declared that the moot-and-academic principle is not a magical
formula that automatically dissuades courts from resolving cases, because they
will decide cases, otherwise moot and academic, if they find that:
1. There is a grave violation of the Constitution;
2. The situation is of exceptional character, and paramount public interest is
involved;
3. The constitutional issue raised requires formulation of controlling principles to
guide the Bench, the Bar, and the public; or
4. A case is capable of repetition yet evading review.
5. Court has come to consider a voluntary cessation by the defendant or the doer
of the activity complained (Province of North Cotabato vs. Government)
Effects of Declaration of Unconstitutionality
If the court declares an act or law unconstitutional, traditionally, there are
two effects:
1. Traditional Effect: means that law or act is considered as
non-existent (it has never been in effect), never part of our
statute books or our jurisprudence and therefore could not be
a basis of a right, liability, or anything.
2. However, the more common and modern approach as to the
effect of a declaration of unconstitutionality (which has been
usually applied):
3. Operative Fact Doctrine. The period of time, during which
the law in question was in effect and before the declaration of
its unconstitutionality, is considered as an operative fact.
(This is because) During such period, the public may have
performed or (willfully) omitted to perform acts because it was
(then) covered by the law.
As such, any actions that the public performed or omitted to perform in
compliance with the law (in order to avoid liability) before its declaration
of unconstitutionality must have to be given legal effect, provided those
acts were intrinsically valid (meaning, other than the law subsequently
declared as unconstitutional, said acts were legal under the laws existing
that time). This is because when those acts were performed or not
performed there was no idea yet, not even a suggestion, that the law will
be declared unconstitutional.
For instance, there is a law providing for an office and the qualifications
therein which then became the reason one was appointed to such office.
As such, that person would have to perform certain acts by reason of the
office he is holding. In the event said law creating the office and the
qualifications (leading to the officers appointment) would be declared
unconstitutional, the Supreme Court would say, in such a case, that the
acts the officer performed will have to be given legal effect under the
Operative Fact Doctrine because that officer does not have to wait,
before he acts, if the law would be declared unconstitutional. The same
 CONSTITUTIONAL LAW REVIEW: IV-Manresa
THE MONTEJO LECTURES 2012-2013

holds true with respect to the remuneration and benefits he may have Success seems to be largely a
received by reason of his office which will be deemed as rightfully matter of hanging on after others
belonging to him because he had received these under the color of have let go.
~William Feather
authority.

As a general rule, an unconstitutional act is not a law; it confers no rights; it

imposes no duties; it affords no protection; it creates no office; it is inoperative as
if it has not been passed at all. The general rule is supported by Article 7 of the
Civil Code, which provides: XXX
The doctrine of operative fact serves as an exception to the aforementioned
general rule. In Planters Products, Inc. v. Fertiphil Corporation, we held:
The doctrine of operative fact, as an exception to the general rule, only applies as
a matter of equity and fair play. It nullifies the effects of an unconstitutional law by
recognizing that the existence of a statute prior to a determination of
unconstitutionality is an operative fact and may have consequences which cannot
always be ignored. The past cannot always be erased by a new judicial
declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an
undue burden on those who have relied on the invalid law. [YAP vs.
THENAMARIS SHIP, May 30, 2011]

All Courts can exercise Judicial Review

There is nothing much to it. The only thing to remember is that only
courts vested with judicial power can exercise judicial review. Thus, if it
is a body created by law other than the Supreme Court and such
lower courts as may be established by law (Sec. 1, Art. VIII, 1987
Constitution), then these bodies do not have power to exercise judicial
review.

So quasi-judicial bodies, as the term suggests, are not actually

exercising judicial power (They do not have the right and do not exercise
the power of judicial review). They are merely exercising administrative
powers but with a right to adjudicate matters (rights) while these bodies
are implementing the laws.

The (lower) courts decision as to a laws constitutionality is subject to

review by the Supreme Court, under Art. VIII, Sec. 5 (2) (see provision).

Political and Justiciable Questions

This is the final item as to Judicial Review. Political Questions are

those questions which under the Constitution are:

1. To be decided by the people in their sovereign capacity; or

2. In regard to which full discretionary authority has been

delegated to the legislative or executive branch of the
government.

Are those questions diminished by the Power of Judicial Review by the

court? While it may seem that they are, those questions are not
considered as totally obliterated by said power of the court. There are
still questions which rightfully belong to the legislative and executive
branch as political questions. These questions remain with said
branches as these refer to the wisdom or policy of a statute or an act.
Unless that question is not limited to the policy or wisdom of a statute or
an act, there may be an exercise of judicial review. But if the question
relates strictly to the policy or wisdom of a statute or an act, then it may
not be properly raised as a justiciable question.

Suppose the Mayor of Davao says that payong-payong motor vehicles

should not be apprehended, can this be questioned in court as violation
of the Constitutional directive or is this a question of policy (that is, it is a
political question which you cannot let the court to decide)?

Is the refusal of the implementation of the law (by the executive) a

question of policy or is there a constitutional violation if the executive
willfully refuses to implement the law?

[Asong, JP/ Kintanar, Krisza]

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When a person really desires
something, all the universe
conspires to help that person to
realize his dream.
~Paolo Coehlo
June 27, 2012
THE PHILIPPINES AS A STATE
ELEMENTS
1. Territory
There is not much about this except the case of Nicolas vs. Romulo
(G.R. No. 175888, Feb. 11, 2009). The question of the case is whether
or not the Subic Base facility is part of the territory. This stemmed from a
rape case involving an American service man [LC Daniel Smith]. In this
case, the Supreme Court traced the history of the jurisdiction over the
military bases located in the Philippines. Under the Philippine Bill of
1902, the US ceded the territory to the Philippines except those military
bases maintained by the US. Under the RP-US Military Bases
Agreement, there was a reiteration that the bases shall not be part of
Philippine territory. However, when the RP-US Military Bases Agreement
expired in 1991 (which was not renewed by the Senate or for lack of
concurrence), the bases were returned to our jurisdictional territory.
There is no issue, therefore, that the bases are already part of Philippine
territory.
NICOLAS vs. ROMULO
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines
and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the other contracting State.
The reason for this provision lies in history and the Philippine experience in
regard to the United States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the
Philippine Commonwealth and, eventually, for the recognition of independence,
the United States agreed to cede to the Philippines all the territory it acquired
from Spain under the Treaty of Paris, plus a few islands later added to its realm,
except certain naval ports and/or military bases and facilities, which the United
States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the
other places in the Philippines covered by the RP-US Military Bases Agreement
of 1947 were not Philippine territory, as they were excluded from the cession and
retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the
extent allowed by the United States. Furthermore, the RP-US Military Bases
Agreement was never advised for ratification by the United States Senate, a
disparity in treatment, because the Philippines regarded it as a treaty and had it
concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the
Philippines; and with the expiration of the RP-US Military Bases Agreement in
1991, the territory covered by these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted
in the 1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the
presence of foreign military bases, troops or facilities in Philippine territory shall
be equally binding on the Philippines and the foreign sovereign State involved.
The idea is to prevent a recurrence of the situation in which the terms and
conditions governing the presence of foreign armed forces in our territory were
binding upon us but not upon the foreign State.
The other matter there perhaps is the discussion on the exclusive
economic zone (EEZ) which is supposed to be measured from the
baselines. And the baselines are considered to be based on municipal
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law or statutes. The question is asked: what should be the basis of the
territory of a state when there is supposed to be a UN Convention on
the Law of the Seas (UNCLOS) and there is, at the same time, a
determination of the baselines by an archipelagic state based on
municipal laws? If there is an encroachment into the territory by
reason of claims, the question is: who determines that? Now, I dont
suppose that would be asked in any bar exam because even that
issue is not settled as of the moment. What is settled would be the
given 1) that the determination of the territories is largely determinate
upon the State, largely a municipal determination. There is no such
thing as an international agreement on the territories. What the
UNCLOS defines would be what should be considered as part of the
territory as well as its exclusive economic zone limitation.
For Philippine purposes, we follow the international definition of what
an archipelago is a body of water studded with islands. The
reckoning point is the water as delineated by the baselines and all the
waters within the baselines are considered as internal waters. There
are no international waters within the archipelago, the reason being to
protect the territorial integrity of the archipelagic state.
From the same baselines we measure what is termed as the
Exclusive Economic Zone. From the term it is suggested that what is
reserved to the state would be the exclusive economic exploration and
exploitation of all resources within it. So any activity in relation to the
economic exploitation and exploration is reserved to the state which it
belongs. Conversely, any activities which do not fall under economic
exploration or exploitation are allowable. Like, there is no need to ask
for permission or consent if there is overflight or navigation within the
exclusive economic zone by any State because it has nothing to do
with the economic exploration or exploitation rights. The problem with
that however is that there may be an overlap since the first 12 nautical
miles from the baselines are considered territorial sea while from the
same baseline the 200 nautical miles exclusive economic zone is also
measured. So in real and technical terms, the first 12 miles is not
exclusive economic zone per se but territorial waters. So if there is
entry into the territory, there must have to be consent. But if there is
entry or non-economic activity in the exclusive economic zone, strictly
speaking, there is no need to get the consent of the state to which it
shall belong.
2. People
The discussion here would be on citizenship. Now, who are
considered citizens of the Philippines?
If we are to read the 1987 Constitution the citizens of the Philippines
as defined under Sec. 1 Article 4 would refer to those who are citizens
of the Philippines at the time of the effectivity of the 1987 Constitution.
So, who are citizens of the Philippines at the time of its effectivity
(Feb. 2, 1987)? We have to go back to the 1973 Constitution and in
the same article on citizenship the first that is declared there would
refer to those who are citizens of the Philippines at the time of the
effectivity of the 1973 Constitution (Jan. 17, 1973). So the same
question is asked and we go back to the 1935 Constitution.
In the 1935 Constitution, there is a listing of who are considered
citizens of the Philippines and it also includes those who are citizens
at the time of the adoption of the 1935 Constitution. So that would be
sometime in late 1935. The question is who are citizens of the
Philippines at the time of the adoption of the 1935 Constitution?
Now, historically, there has been no definition of who the citizens of
the Philippines are until the passage of the Philippine Bill of 1902.
Before then, there was no definition of citizens of the Philippines for
lack of any legislation. But because the Philippines was ceded by
Spain to the US under the Treaty of Paris of 1898, there has to be a
need for defining who the subjects or citizens of the Philippines are.
The definition reads: all inhabitants of the Philippine Islands who were
subjects of Spain on April 11, 1891 (later changed to 1898), and who
resided in the Philippine Islands and their children [are citizens].
 CONSTITUTIONAL LAW REVIEW:
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So all inhabitants of the Philippine Islands who were subjects of
Spainthere was a cut-off date, April 11, 1891, again this was
changed under the Jones Law to 1898and who resided in the
Philippine Islands and their children. So regardless of the citizenship
by origin, if you belong to that category, you are considered citizens of
the Philippines under the Philippine Bill of 1902. Thats why those
foreigners, especially Spanish subjects who were not born here but
were here as of the cut-off date or who may be foreign nationals but
who were born here and are here will be considered Filipino citizens
under the Philippine Bill of 1902, if they had remained in the country.
So there were decisions relating to acquisition of citizenship by reason
of place of birth or jus soli. We have never used jus soli for
determining acquisition of citizenship. It is always by blood relation.
But because of that definition of citizenship there were subjects of
Spain not born here or were born here but were foreigners, and who
remained in the country after that cut-off date were therefore
considered by the law as Filipino citizens.
The 1935 Constitution also lists downs the following:
1. born of foreign parents but elected to public office at the
time of the adoption of the Constitution. So foreigner at
birth or origin but had been elected to public office [Take
not: elected not appointed]. The reason being, for obvious
reasons, he had been chosen by the (electorate).
2. Those whose fathers are citizens of the Philippine Islands are
considered citizens under the 1935 Constitution;
3. Those whose mothers are citizens of the Philippine Islands
with foreigner fathers and who elect Philippine citizenship
upon reaching the age of majority;
4. Those who are naturalized in accordance with law.
Natural-Born Citizens
Most discussions on citizenship are those on natural-born citizens
because national offices would require natural-born citizenship. Also,
appointments to the judiciary would require natural-born citizenship
among others. There is a listing in your outline as to who must be
natural-born citizens under the Constitution and there are 6 of them:
1. President;
2. Vice President;
3. Members of Congress;
4. Justices of the Supreme Court and Lower
Collegiate Courts;
5. Ombudsman and Deputies; and
6. Constitutional Commission Members.
Now, natural-born citizenship has been first defined in the 1973
Constitution. There has been no definition yet under the 1935
Constitution. In the 1973 Constitution, the definition states that those
who are citizens from birth without performing an act to perfect or
acquire citizenship are considered natural-born. This was expanded in
the 1987 Constitution to include those children born under the 1935
Constitution with Filipino mothers and foreigner fathers who elect
Philippine citizenship upon reaching the age of majority. This is one of
those provisions in the Constitution which by express intent is to be
applied retroactively.
Now, the phrase who are citizens from birth who did not perform any
act to acquire citizenship must be understood as it is. The phrase
from birth refers to citizenship. It does not refer to the non-
performance of an act to acquire or perfect [Philippine citizenship]
because if you are a citizen from birth, even if subsequently you
performed an act to perfect or acquire it, you are still considered
natural-born. If you are not a citizen from birth and even if you have
not acquired or performed an act to acquire or perfect your citizenship,
the question is: are you considered natural-born?
Lets state some of the issues here.
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Election of Philippine Citizenship
The first is the matter of election. How must election be made?
Election is made under Commonwealth Act 625 generally by a
verified election, meaning a sworn statement or affidavit that you
have elected to become a Filipino citizen. You must take your oath of
allegiance and these documents must have to be registered with the
appropriate local civil registry. Its as simple as that. However you
must have submitted your election of choice within a reasonable time
period of 3 years. Reasonable time has been somehow the subject of
opinions; a decision of the court says that it must be within 3 years
more or less.
COMMONWEALTH ACT No. 625
AN ACT PROVIDING THE MANNER IN WHICH THE OPTION TO ELECT
PHILIPPINE CITIZENSHIP SHALL BE DECLARED BY A PERSON WHOSE
MOTHER IS A FILIPINO CITIZEN
Section 1. The option to elect Philippine citizenship in accordance with
subsection (4), section 1, Article IV, of the Constitution shall be expressed in a
statement to be signed and sworn to by the party concerned before any officer
authorized to administer oaths, and shall be filed with the nearest civil registry.
The said party shall accompany the aforesaid statement with the oath of
allegiance to the Constitution and the Government of the Philippines.
Section 2. If the party concerned is absent from the Philippines, he may make
the statement herein authorized before any officer of the Government of the
United States2 authorized to administer oaths, and he shall forward such
statement together with his oath of allegiance, to the Civil Registry of Manila.
XXX
Approved, June 7, 1941.
Those children are the problem children with respect to natural-born
citizenship because of the need to elect Philippine citizenship. The
basics there is that: marriage is required only if it pertains to a Filipino
mother and a foreigner father for election to apply. If there is no
marriage of the Filipino mother to a foreigner spouse, the illegitimate
child or children are automatically Filipino citizens. They do not follow
the citizenship of the foreigner natural father during their minority. The
reason for that is: they follow the citizenship of the mother simply
because they are usually placed under the custody, authority and
parental control of the mother.
If conversely however, it is the father who is Filipino, the 1935
Constitution states that the child is automatically Filipino. The problem
is: what if the father is Filipino but the mother is not and they are not
married? In the case of Fernando Poe Jr. [Editors Note: Tecson vs.
COMELEC, 424 SCRA 277, 2004] it has been settled that if the father
is Filipino, the mother is not Filipino and the couple is not married to
one another, the child will automatically be Filipino. It will not follow the
same principle as in the case of a Filipino mother not married to the
foreigner fatherthe intent being to grant the child Filipino citizenship
because it is supposed to be a privilege which the child should not be
deprived of. So since the mother of Fernando Poe Jr. was not married
to his father, it does not mean that he should follow the citizenship of
his mother. He follows the citizenship of his father because, again, it is
a privilege to become a Filipino citizen. That is why we are privileged
that we are Filipino citizens.
TECSON vs. COMELEC
There was no such term as "Philippine citizens" during the Spanish regime but
"subjects of Spain" or "Spanish subjects."1In church records, the natives were
called 'indios', denoting a low regard for the inhabitants of the archipelago.
Spanish laws on citizenship became highly codified during the 19th century but
their sheer number made it difficult to point to one comprehensive law. Not all of
these citizenship laws of Spain however, were made to apply to the Philippine
Islands except for those explicitly extended by Royal Decrees.
Spanish laws on citizenship were traced back to the Novisima Recopilacion,
promulgated in Spain on 16 July 1805 but as to whether the law was extended to
the Philippines remained to be the subject of differing views among experts;
however, three royal decrees were undisputably made applicable to Spaniards in
the Philippines - the Order de la Regencia of 14 August 1841, the Royal Decree
 CONSTITUTIONAL LAW REVIEW:
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of 23 August 1868 specifically defining the political status of children born in the
Philippine Islands, and finally, the Ley Extranjera de Ultramar of 04 July 1870,
which was expressly made applicable to the Philippines by the Royal Decree of
13 July 1870.
The Spanish Constitution of 1876 was never extended to the Philippine Islands
because of the express mandate of its Article 89, according to which the
provisions of the Ultramar among which this country was included, would be
governed by special laws.
It was only the Civil Code of Spain, made effective in this jurisdiction on 18
December 1889, which came out with the first categorical enumeration of who
were Spanish citizens -
"(a) Persons born in Spanish territory,
"(b) Children of a Spanish father or mother, even if they were born outside of
Spain,
"(c) Foreigners who have obtained naturalization papers,
"(d) Those who, without such papers, may have become domiciled inhabitants of
any town of the Monarchy."
The year 1898 was another turning point in Philippine history. Already in the state
of decline as a superpower, Spain was forced to so cede her sole colony in the
East to an upcoming world power, the United States. An accepted principle of
international law dictated that a change in sovereignty, while resulting in an
abrogation of all political laws then in force, would have no effect on civil laws,
which would remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between Spain and
the United States. Under Article IX of the treaty, the civil rights and political status
of the native inhabitants of the territories ceded to the United States would be
determined by its Congress -
"Spanish subjects, natives of the Peninsula, residing in the territory over which
Spain by the present treaty relinquishes or cedes her sovereignty may remain in
such territory or may remove therefrom, retaining in either event all their rights of
property, including the right to sell or dispose of such property or of its proceeds;
and they shall also have the right to carry on their industry, commerce, and
professions, being subject in respect thereof to such laws as are applicable to
foreigners. In case they remain in the territory they may preserve their allegiance
to the Crown of Spain by making, before a court of record, within a year from the
date of the exchange of ratifications of this treaty, a declaration of their decision to
preserve such allegiance; in default of which declaration they shall be held to
have renounced it and to have adopted the nationality of the territory in which
they reside.
Thus
"The civil rights and political status of the native inhabitants of the territories
hereby ceded to the United States shall be determined by the Congress.
Upon the ratification of the treaty, and pending legislation by the United States
Congress on the subject, the native inhabitants of the Philippines ceased to be
Spanish subjects. Although they did not become American citizens, they,
however, also ceased to be "aliens" under American laws and were thus issued
passports describing them to be citizens of the Philippines entitled to the
protection of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in the
Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of
1902, the first comprehensive legislation of the Congress of the United States on
the Philippines -
".... that all inhabitants of the Philippine Islands continuing to reside therein, who
were Spanish subjects on the 11th day of April, 1891, and then resided in said
Islands, and their children born subsequent thereto, shall be deemed and held to
be citizens of the Philippine Islands and as such entitled to the protection of the
United States, except such as shall have elected to preserve their allegiance to
the Crown of Spain in accordance with the provisions of the treaty of peace
between the United States and Spain, signed at Paris, December tenth eighteen
hundred and ninety eight."
Under the organic act, a "citizen of the Philippines" was one who was an
inhabitant of the Philippines, and a Spanish subject on the 11 th day of April 1899.
The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an
inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who
obtained Spanish papers on or before 11 April 1899.
Controversy arose on to the status of children born in the Philippines from 11
April 1899 to 01 July 1902, during which period no citizenship law was extant in
the Philippines. Weight was given to the view, articulated in jurisprudential writing
at the time, that the common law principle of jus soli, otherwise also known as the
principle of territoriality, operative in the United States and England, governed
those born in the Philippine Archipelago within that period. More about this later.
In 23 March 1912, the Congress of the United States made the following
amendment to the Philippine Bill of 1902 -
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"Provided, That the Philippine Legislature is hereby authorized to provide by law
for the acquisition of Philippine citizenship by those natives of the Philippine
Islands who do not come within the foregoing provisions, the natives of other
insular possession of the United States, and such other persons residing in the
Philippine Islands who would become citizens of the United States, under the
laws of the United States, if residing therein.
With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens"
had for the first time crystallized. The word "Filipino" was used by William H. Taft,
the first Civil Governor General in the Philippines when he initially made mention
of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine
Autonomy Act, also known as the Jones Law restated virtually the provisions of
the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 -
"That all inhabitants of the Philippine Islands who were Spanish subjects on the
eleventh day of April, eighteen hundred and ninety-nine, and then resided in said
Islands, and their children born subsequently thereto, shall be deemed and held
to be citizens of the Philippine Islands, except such as shall have elected to
preserve their allegiance to the Crown of Spain in accordance with the provisions
of the treaty of peace between the United States and Spain, signed at Paris
December tenth, eighteen hundred and ninety-eight and except such others as
have since become citizens of some other country; Provided, That the Philippine
Legislature, herein provided for, is hereby authorized to provide for the acquisition
of Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of the insular possessions of the
United States, and such other persons residing in the Philippine Islands who are
citizens of the United States, or who could become citizens of the United States
under the laws of the United States, if residing therein."
Under the Jones Law, a native-born inhabitant of the Philippines was deemed to
be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain
on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that
date, not a citizen of some other country.
While there was, at one brief time, divergent views on whether or not jus soli was
a mode of acquiring citizenship, the 1935 Constitution brought to an end to any
such link with common law, by adopting, once and for all, jus sanguinis or blood
relationship as being the basis of Filipino citizenship -
"Section 1, Article III, 1935 Constitution. The following are citizens of the
Philippines -
"(1) Those who are citizens of the Philippine Islands at the time of the adoption of
this Constitution
"(2) Those born in the Philippines Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office in the Philippine
Islands.
"(3) Those whose fathers are citizens of the Philippines.
"(4) Those whose mothers are citizens of the Philippines and upon reaching the
age of majority, elect Philippine citizenship.
"(5) Those who are naturalized in accordance with law."
Subsection (4), Article III, of the 1935 Constitution, taken together with existing
civil law provisions at the time, which provided that women would automatically
lose their Filipino citizenship and acquire that of their foreign husbands, resulted
in discriminatory situations that effectively incapacitated the women from
transmitting their Filipino citizenship to their legitimate children and required
illegitimate children of Filipino mothers to still elect Filipino citizenship upon
reaching the age of majority. Seeking to correct this anomaly, as well as fully
cognizant of the newly found status of Filipino women as equals to men, the
framers of the 1973 Constitution crafted the provisions of the new Constitution on
citizenship to reflect such concerns -
"Section 1, Article III, 1973 Constitution - The following are citizens of the
Philippines:
"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
"(2) Those whose fathers or mothers are citizens of the Philippines.
"(3) Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five.
"(4) Those who are naturalized in accordance with law."
For good measure, Section 2 of the same article also further provided that
"A female citizen of the Philippines who marries an alien retains her Philippine
citizenship, unless by her act or omission she is deemed, under the law to have
renounced her citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution,
except for subsection (3) thereof that aimed to correct the irregular situation
generated by the questionable proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
"The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
"(2) Those whose fathers or mothers are citizens of the Philippines.
 CONSTITUTIONAL LAW REVIEW:
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"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
"(4) Those who are naturalized in accordance with law."
The next matter to be discussed is that: assuming there is a Filipino
mother and a foreigner father, who are married to one another, and by
the laws of the country of the foreigner husband/father, the Filipino
mother/wife automatically becomes, by operation of law (by the fact of
marriage), a foreign national of the country of the husband/father. The
question is: would a child of that marriage still elect Philippine
citizenship upon reaching the age of majority? The answer is YES
because the mother did not do anything except to get married and by
operation of law she became a foreigner.
If however there is no automatic naturalization by operation of law by
sheer marriage, the mother must have to apply for naturalization in the
country of her husband. If the mother did so, can a child of that
marriage still elect Philippine citizenship upon reaching the age of
majority? The question is answered by answering the question: is
there a Filipino mother? If at the time the child is conceived and/or
born there is a Filipino mother, then the child would still elect
Philippine citizenship upon reaching the age of majority. But if at the
time the child is conceived and/or born there is no more Filipino
mother to talk about (because the naturalized status of the mother
upon application has already been granted and the decision is already
final and executory), then the child is not a Filipino. Since there is no
more Filipino mother to talk about, there could be no more election
allowed if the child reaches majority age.
If a child is born of a couple (Filipino mother married to a foreigner
father), say in 1965, when will the child be considered eligible to elect
Philippine citizenship? Upon reaching the age of majority, which at
that time was 21. So when will the child reach 21? In what year? 1986.
In 1986, when he would elect Philippine citizenship, the question is: is
he natural-born? Remember under the 1987 Constitution, the
definition is, those who are citizens from birth who did not perform an
act to perfect or acquire citizenship. Now, since that child has chosen
to elect under the terms of the 1973 Constitution, it would seem that,
that child would not be natural-born, because while he is a citizen from
birth, he did perform an act to perfect or acquire his citizenship. But
again, that anomaly has been corrected in the 1987 Constitution with
the expanded definition of natural-born, specifically pertaining to these
children to be natural-born as well. That gives you the idea that the
phrase from birth does not refer to non-performance of act but to the
fact that the child is a citizen from birth.
Naturalized Citizens
Naturalization in the country would have to follow the old law which is
Commonwealth Act No. 473. There are 2 considerations there. The
first would be the matter of substantive requirements and the second
would be on the procedural requirements.
For substantive requirements, the mnemonics here would be
ARCPEN:
1. Age majority age;
2. Residency 10 years or 5 years in special
cases;
3. Character good moral character;
4. Property very minimal requirement;
5. Education if you have minor children,
they must have to be educated here and
the school must not be exclusive for
foreigners among others and based on the
constitutional requirement that the subject
of the constitution must be taught in the
school; and
6. Not otherwise disqualified by law the
usual disqualifications
a) If the person is opposed to organized
government;
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b) If that person believes in violence or in the
violent overthrow of the government;
c) So called practices of polygamy;
d) There is sexually transmissible diseases or
contagious diseases;
e) Mental illness or ailment; and
f) If the country where the foreigner comes
from does not offer the same privilege of
being naturalized for Filipino citizens, the
principle of reciprocity.
Procedurally there is the requirement that the declaration of intention
must have been filed 1 year from the filing of the petition because the
State through the Office of the Solicitor General must have a head
start in determining whether you have all the qualifications and none
of the disqualifications. When the petition is filed, eventually after 1
year, the notice of the hearing must have to be published because
apparently citizenship grant is an action in rem. It binds the entire
Philippine world or public. Then there would be presentation of
evidence. If so granted the court will grant it but the decision is not
automatically final and executory after the normal 15 day period.
There shall be a 2 year waiting period, and after 2 years, there will be
a summary hearing to determine whether or not the petitioner
continued to have all the qualifications and none of the
disqualifications. If so, the decision will become final. The Court will
order the cancellation of the alien certificate of registration and that
petitioner will have to be issued a certificate of naturalization.
If the wife is not Filipino, she can derive the citizenship of the
petitioner husband/father and become a Filipino citizen also. All she
has to prove is that she has none of the disqualifications. She need
not prove that she is qualified. She must only prove that she is not
disqualified. The minor children will also be considered Filipino
citizens because they derive from the grant of petition of their father.
However the law treats them differently in the sense that if the children
are already of age, they will not benefit. If the children are still minors
and they are born here and are here at the time of the grant, they will
automatically become Filipinos. If they are not born here and more so
if they are outside, they must have to elect, not really the election with
respect to the previous discussion, but they must have to file a
declaration of their intention that they would like to become Filipino
citizens and take permanent residence here when they reach the age
of majority.
COMMONWEALTH ACT No. 473
AN ACT TO PROVIDE FOR THE ACQUISITION OF PHILIPPINE CITIZENSHIP
BY NATURALIZATION, AND TO REPEAL ACTS NUMBERED TWENTY-NINE
HUNDRED AND TWENTY-SEVEN AND THIRTY-FOUR HUNDRED AND
FORTY-EIGHT.
Section 1. Title of Act. This Act shall be known and may be cited as the
"Revised Naturalization Law."
Section 2. Qualifications. Subject to section four of this Act, any person having
the following qualifications may become a citizen of the Philippines by
naturalization:
First. He must be not less than twenty-one years of age on the day of the hearing
of the petition;
Second. He must have resided in the Philippines for a continuous period of not
less than ten years;
Third. He must be of good moral character and believes in the principles
underlying the Philippine Constitution, and must have conducted himself in a
proper and irreproachable manner during the entire period of his residence in the
Philippines in his relation with the constituted government as well as with the
community in which he is living.
Fourth. He must own real estate in the Philippines worth not less than five
thousand pesos, Philippine currency, or must have some known lucrative trade,
profession, or lawful occupation;
Fifth. He must be able to speak and write English or Spanish and any one of the
principal Philippine languages; and
Sixth. He must have enrolled his minor children of school age, in any of the public
schools or private schools recognized by the Office of Private Education of the
Philippines, where the Philippine history, government and civics are taught or
prescribed as part of the school curriculum, during the entire period of the
 CONSTITUTIONAL LAW REVIEW:
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residence in the Philippines required of him prior to the hearing of his petition for
naturalization as Philippine citizen.
Section 3. Special qualifications. The ten years of continuous residence required
under the second condition of the last preceding section shall be understood as
reduced to five years for any petitioner having any of the following qualifications:
1. Having honorably held office under the Government of the Philippines or under
that of any of the provinces, cities, municipalities, or political subdivisions thereof;
2. Having established a new industry or introduced a useful invention in the
Philippines;
3. Being married to a Filipino woman;
4. Having been engaged as a teacher in the Philippines in a public or recognized
private school not established for the exclusive instruction of children of persons
of a particular nationality or race, in any of the branches of education or industry
for a period of not less than two years;
5. Having been born in the Philippines.
XXX
Section 15. Effect of the naturalization on wife and children.Any woman who is
now or may hereafter be married to a citizen of the Philippines, and who might
herself be lawfully naturalized shall be deemed a citizen of the Philippines.
Minor children of persons naturalized under this law who have been born in the
Philippines shall be considered citizens thereof.
A foreign-born minor child, if dwelling in the Philippines at the time of the
naturalization of the parent, shall automatically become a Philippine citizen, and a
foreign-born minor child, who is not in the Philippines at the time the parent is
naturalized, shall be deemed a Philippine citizen only during his minority, unless
he begins to reside permanently in the Philippines when still a minor, in which
case, he will continue to be a Philippine citizen even after becoming of age.
A child born outside of the Philippines after the naturalization of his parent, shall
be considered a Philippine citizen, unless one year after reaching the age of
majority, he fails to register himself as a Philippine citizen at the **************
MISSING PAGE "#329"
XXX
Now, the question is: what about those children born after the grant of
citizenship? With respect to those children already born, the question
is, are they natural-born? They could never be because they are not
citizens from birth. Again, the example is that the mother is not
Filipino. If the mother is Filipino and we talk about the 2nd in the list in
the 1987 Constitution, there is no problem because under the 1973
and the 1987 Constitution, if the father or mother is Filipino, the child
is automatically Filipino.
But what about before the 1973 Constitution? We talk about
naturalization involving a foreigner couple and foreigner children, and
the foreigner wife and foreigner children will just derive the citizenship
grant from the foreigner father. What will be the status of those
children? Will they be considered natural-born eventually? The answer
will be NO because they are not citizens from birth. They are citizens
only when they were granted the derivative citizenship from the father.
Again, under the 1987 Constitution, if one parent is Filipino, no
problem. The only effect if the wife is Filipino and the husband is not
and the latter [husband] applies for naturalization is that the residency
requirement is shortened to 5 years. But as to the children under the
1973 and 1987 Constitution, they are automatically Filipino from birth
regardless of the citizenship of their father.
Still on the same foreigner couple with foreigner children who were
naturalized in the Philippines. What about those children born after the
grant of citizenship? Could they be considered as natural-born
eventually? So Obama and Michelle Obama came here with their
children and all their dogs. Barrack decided to apply for naturalization
and was granted. Michelle and their children derived from the grant.
What if another child was born after the grant? Would that child be
considered natural-born?
Again, we go back to the definition, those who are citizens from birth
without having to perform an act to perfect or acquire citizenship. So
when the child was born, was there a Filipino father or a Filipino
mother or both? Since both are Filipinos already, then that child is
born with Filipino parents. So even if he does not look Filipino, he will
be, by constitutional contemplation, considered as natural-born.
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The other mode of naturalization is the so-called Cayetano Law or
Administrative Naturalization Act (RA 9139). Now this was enacted by
Congress in response to the plight of a lot of foreigners who were born
here and who are stuck here and could not actually exercise their
profession, and their rights pertaining to citizenship because they are
mostly undocumented foreigners. It largely stems from the fact that
their parents are illegal aliensforeigners here and have never been
naturalized Filipinos.
The administrative naturalization is only granted to those who were
born here and who have been living here since birth up to the time
they have reached the age of majority and they have filed their
petition. So, this a special class of persons granted the right to be
naturalized administratively. It would seem to follow the same
substantive requirements. There is also age, residency since birth
character; you must also have good moral character. There is an
additional requirement there that he must have been able to immerse
himself as part of the Filipino culture. Property requirement is also
there. Education the applicant must have been schooled in
Philippine schools not exclusive for foreigners which teach, among
others, the Philippine Constitution and government. In judicial
naturalization, it is not for the petitioner but for his children. But in
administrative naturalization it must be the applicant who must have
gone to Philippine schools not exclusive for foreigners which teach,
among others, the Philippine Constitution, government and similar or
related subjects. And the not otherwise disqualified by law almost
the same enumeration.
The procedure is that there is only a need for the filing of a petition
before the Special Committee on Naturalization. If you notice, this is
also a fundraising legislation for the amount of the filing fee which is
required for the petitioner to pay. And while there is derivative
naturalization of the wife and children, there is also additional payment
of fees. In Commonwealth Act 473, there is no such mention of fees.
In RA 9139, the amount of the fees is very specified.
If the wife is the applicant, is there a derivative mode for the husband?
The answer is none. If the husband is the applicant, the wife derives it.
She only has to pay all the administrative fees as well as for the minor
children. But if the wife is the applicant, the husband must have to
apply separately.
REPUBLIC ACT NO. 9139 June 08, 2001
AN ACT PROVIDING FOR THE ACQUISITION OF PHILIPPINE CITIZENSHIP
FOR CERTAIN ALIENS BY ADMINISTRATIVE NATURALIZATION AND FOR
OTHER PURPOSES
Section 1. Short Title. - This Act shall be known as "The Administrative
Naturalization Law of 2000."
XXX
Section 3. Qualifications. - Subject to the provisions of the succeeding section,
any person desiring to avail of the benefits of this Act must meet the following
qualifications:
(a) The applicant must be born in the Philippines and residing therein since birth;
(b) The applicant must not be less than eighteen (18) years of age, at the time of
filing of his/her petition;
(c) The applicant must be of good moral character and believes in the underlying
principles of the Constitution, and must have conducted himself/herself in a
proper and irreproachable manner during his/her entire period of residence in the
Philippines in his relation with the duly constituted government as well as with the
community in which he/she is living;
(d) The applicant must have received his/her primary and secondary education in
any public school or private educational institution dully recognized by the
Department of Education, Culture and Sports, where Philippine history,
government and civics are taught and prescribed as part of the school curriculum
and where enrollment is not limited to any race or nationality: Provided, That
should he/she have minor children of school age, he/she must have enrolled
them in similar schools;
(e) The applicant must have a known trade, business, profession or lawful
occupation, from which he/she derives income sufficient for his/her support and if
he/she is married and/or has dependents, also that of his/her family: Provided,
however, That this shall not apply to applicants who are college degree holders
 CONSTITUTIONAL LAW REVIEW:
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but are unable to practice their profession because they are disqualified to do so
by reason of their citizenship;
(f) The applicant must be able to read, write and speak Filipino or any of the
dialects of the Philippines; and
(g) The applicant must have mingled with the Filipinos and evinced a sincere
desire to learn and embrace the customs, traditions and ideals of the Filipino
people.
Section 4. Disqualifications, - The following are not qualified to be naturalized as
Filipino citizens under this Act:
(a) Those opposed to organized government or affiliated with any association of
group of persons who uphold and teach doctrines opposing all organized
governments;
(b) Those defending or teaching the necessity of or propriety of violence, personal
assault or assassination for the success or predominance of their ideas;
(c) Polygamists or believers in the practice of polygamy;
(d) Those convicted of crimes involving moral turpitude;
(e) Those suffering from mental alienation or incurable contagious diseases;
(f) Those who, during the period of their residence in the Philippines, have not
mingled socially with Filipinos, or who have not evinced a sincere desire to learn
and embrace the customs, traditions and ideals of the Filipinos;
(g) Citizens or subjects with whom the Philippines is at war, during the period of
such war; and
(h) Citizens or subjects of a foreign country whose laws do not grant Filipinos the
right to be naturalized citizens or subjects thereof.
Section 5. Petition for Citizenship. - (1) Any person desiring to acquire Philippine
citizenship under this Act shall file with the Special Committee on Naturalization
created under Section 6 hereof, a petition of five (5) copies legibly typed and
signed, thumb-marked and verified by him/her, with the latter's passport-sized
photograph attached to each copy of the petition, and setting forth the following:
XXX
Section 6. Special Committee on Naturalization. - There shall be constituted a
Special Committee on Naturalization herein referred to as the "Committee", with
the Solicitor General as chairman, the Secretary of Foreign Affairs, or his
representative, and the National Security Adviser, as members, with the power to
approve, deny or reject applications for naturalization as provided in this Act. XXX
Section 8. Approval or Disapproval of the Petition. - Within sixty (60) days from
receipt of the report of the agencies which were furnished a copy of the petition or
the date of the last publication of the petition, whichever comes in later, the
Committee shall consider and review all relevant and material information it has
received pertaining to the petition, and may, for the purpose call the petitioner for
interview to ascertain his/her identity, the authenticity of the petition and its
annexes, and to determine the truthfulness of the statements and declarations
made in the petition and its annexes.
If the Committee shall have received any information adverse to the petition, the
Committee shall allow the petitioner to answer, explain or refute the information.
Thereafter, if the Committee believes, in view of the facts before it, that the
petitioner has all the qualifications and none of the disqualifications required for
Philippine citizenship under this Act, it shall approve the petition and henceforth,
notify the petitioner of the fact of such approval. Otherwise, the Committee shall
disapprove the same.
Section 9. Decree of Naturalization and Naturalization Processing Fee. -Within
thirty (30) days from the receipt of the notice of the approval of his/her petition,
the applicant shall pay to the Committee a naturalization fee of One hundred
thousand pesos (P100,000.00) payable as follows: Fifty thousand pesos
(P50,000.00) upon the approval of the petition and Fifty thousand pesos
(P50,000.00) upon the taking of the oath of allegiance to the Republic of the
Philippines, forthwith, a certificate of naturalization shall be issued. Within sixty
(60) days from the issuance of the certificate, the petitioner shall take an oath of
allegiance in the proper forum upon proof of payment of the required
naturalization processing fee and certificate of naturalization. Should the applicant
fail to take the abovementioned oath of allegiance within said period of time, the
approval of the petition shall be deemed abandoned.
XXX
Section 11. Status of Alien Wife and Minor Children. - After the approval of the
petition for administrative naturalization in cancellation of applicant's alien
certificate of registration, applicant's alien lawful wife and minor children may file a
petition for cancellation of their alien certificates of registration with the Committee
subject to the payment of the filing fee of Twenty thousand pesos (P20,000.00)
and naturalization fee of Forty thousand pesos (P40,000.00) payable as follows:
Twenty thousand pesos (P20,000.00) upon the approval of the petition and
Twenty thousand pesos (P20,000.00) upon the taking of the oath of allegiance to
the Republic of the Philippines.
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Section 12. Status of Alien Husband and Minor Children. - If the applicant is a
married woman, the approval of her petition for administrative naturalization will
not benefit her alien husband but her minor children may file a petition for
cancellation of their alien certificates of registration with the BI subject to the
requirements of existing laws.
Section 13. Cancellation of the Certificate of Naturalization. - The Special
Committee may cancel certificates of naturalization issued under this Act in the
following cases:
(a) If it finds that the naturalized person or his duly authorized representative
made any false statement or misrepresentation or committed any violation of law,
rules and regulations in connection with the petition for naturalization, or if he
otherwise obtains Philippine citizenship fraudulently or illegally, the certificate of
naturalization shall be cancelled;
(b) If the naturalized person or his wife, or any or his minor children who acquire
Filipino citizenship by virtue of his naturalization shall, within five (5) years next
following the grant of Philippine citizenship, establish permanent residence in a
foreign country, that individual's certificate of naturalization or acquired citizenship
shall be cancelled or revoked: Provided, That the fact of such person's remaining
for more than one (1) year in his country of origin, or two (2) years in any foreign
country, shall be considered prima facie evidence of intent to permanently reside
therein;
(c) If the naturalized person or his wife or child with acquired citizenship allows
himself or herself to be used as a dummy in violation of any constitutional or legal
provision requiring Philippine citizenship as a condition for the exercise, use or
enjoyment of a right, franchise or privilege, the certificate of naturalization or
acquired citizenship shall be cancelled or revoked; and
(d) If the naturalized person or his wife or child with acquired citizenship commits
any act inimical to national security, the certificate of naturalization or acquired
citizenship shall be cancelled or revoked.
In case the naturalized person holds any hereditary title, or belong to any order of
nobility, he shall make an express renunciation of his title or membership in this
order of nobility before the Special Committee or its duly authorized
representative, and such renunciation shall be included in the records of his
application for citizenship.
XXX
Loss of Citizenship
Loss of citizenship is based largely on Commonwealth Act 63,
Section 1 thereof. There are specific grounds there:
1. Naturalization in a foreign country
2. Express renunciation your citizenship
3. If you take an oath of allegiance to support the constitution
or laws of a foreign country
4. You have taken a commission to serve in the armed forces
of a foreign country subject to stipulations, there are some
exceptions;
5. In the case of denaturalization, a naturalized Filipino is
denaturalized;
6. In cases of deserters of the armed forces in times of war;
and
7. Under the 1935 Constitution, by marriage of a Filipino
woman to foreigner husband where she is considered to be
a citizen of the country of the foreigner husband by
operation of law by sheer marriage.
Those are the grounds. Obviously that last ground is no longer valid
under the 1973 and 1987 Constitution. Those are basically the
grounds for losing ones citizenship.
Denaturalization is applied for those who were naturalized. There are
about 5 grounds there. The most common ground perhaps is the
return. If the naturalized person returns to his country of origin and
stays there continuously for 1 year, there is a prima facie presumption
that he intends to take permanent residency in his country of origin
and therefore he can be denaturalized. If he takes residence in
another foreign country, not his country of origin and stays
continuously there for 2 years, there is a prima facie presumption that
he intends to take permanent residence in the other foreign country
and therefore he can be denaturalized.
The other common ground would be if the naturalization was secured
for purposes of violating any of our laws. And the most common laws
would be the laws on the nationalized industries. Under the
 CONSTITUTIONAL LAW REVIEW:
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Constitution, we all know that there are certain industries that are
nationalized in certain percentage or in full reservation to Filipino
citizens or corporations. If the naturalization of a person is secured so
as to skirt the requirement, then that would be a ground for
denaturalization.
If the denaturalization is to be filed, where do you file it? It is usually
filed in the same court which granted the naturalization. It is like
similar to your land registration cases. In original land registration
cases, even if the land has already been titled and there is an issue
involving the same land, you have to go to the same land registration
court which granted the title or patent over your titled property.
With respect to naturalization, issues involving the citizenship of the
person, the question there is: if the issue on naturalization is once
resolved or decided by the court, is it binding upon the State? To state
it differently, does the issue or the resolution on the issue of
citizenship constitute res judicata? It would, provided that the following
conditions are present:
1. Citizenship is raised as a material issue in the case or
proceeding;
2. The Solicitor General has actively taken part in the
proceedings to defend the interest of the State; and
3. The issue on citizenship has been affirmed by the Supreme
Court.
So any issue therefore on citizenship resolved, say for example, by
the Bureau of Immigration under the DOJ, until and unless that issue
is finally settled by the Supreme Court, among others, there will be no
end to that issue of citizenship. It can be raised time again and again if
the circumstances would warrant. Only if the conditions are met that
the resolution on the issue of citizenship would be binding on the State
and would be considered as res judicata.
Reacquisition or Repatriation
The first law there is still under Commonwealth Act 63. [See Section
4] Reacquisition is allowed or granted under 3 modes.
COMMONWEALTH ACT No. 63
AN ACT PROVIDING FOR THE WAYS IN WHICH PHILIPPINE CITIZENSHIP
MAY BE LOST OR REACQUIRED
Section 1. How citizenship may be lost. A Filipino citizen may lose his
citizenship in any of the following ways and/or events:
(1) By naturalization in a foreign country; [BUT SEE RA 9255]
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of a
foreign country upon attaining twenty-one years of age or more: Provided,
however, That a Filipino may not divest himself of Philippine citizenship in any
manner while the Republic of the Philippines is at war with any country;
(4) By rendering services to, or accepting commission in, the armed forces of a
foreign country: Provided, That the rendering of service to, or the acceptance of
such commission in, the armed forces of a foreign country, and the taking of an
oath of allegiance incident thereto, with the consent of the Republic of the
Philippines, shall not divest a Filipino of his Philippine citizenship if either of the
following circumstances is present:
(a) The Republic of the Philippines has a defensive and/or offensive pact of
alliance with the said foreign country; or
(b) The said foreign country maintains armed forces on Philippine territory with
the consent of the Republic of the Philippines: Provided, That the Filipino citizen
concerned, at the time of rendering said service, or acceptance of said
commission, and taking the oath of allegiance incident thereto, states that he
does so only in connection with his service to said foreign country: And provided,
finally, That any Filipino citizen who is rendering service to, or is commissioned in,
the armed forces of a foreign country under any of the circumstances mentioned
in paragraph (a) or (b), shall not be permitted to participate nor vote in any
election of the Republic of the Philippines during the period of his service to, or
commission in, the armed forces of said foreign country. Upon his discharge from
the service of the said foreign country, he shall be automatically entitled to the full
enjoyment of his civil and political rights as a Filipino citizen;
(5) By cancellation of the of the certificates of naturalization;
(6) By having been declared by competent authority, a deserter of the Philippine
armed forces in time of war, unless subsequently, a plenary pardon or amnesty
has been granted; and
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(7) In the case of a woman, upon her marriage to a foreigner if, by virtue of the
laws in force in her husband's country, she acquires his nationality. [ NO
LONGER VALID UNDER 1987 CONSTITUTION]
The provisions of this section notwithstanding, the acquisition of citizenship by a
natural born Filipino citizen from one of the Iberian and any friendly democratic
Ibero-American countries or from the United Kingdom shall not produce loss or
forfeiture of his Philippine citizenship if the law of that country grants the same
privilege to its citizens and such had been agreed upon by treaty between the
Philippines and the foreign country from which citizenship is acquired.
Section. 2. How citizenship may be reacquired. Citizenship may be reacquired:
(1) By naturalization: Provided, That the applicant possess none of the
disqualification's prescribed in section two of Act Numbered Twenty-nine hundred
and twenty-seven, [Now, CA 473]
(2) By repatriation of deserters of the Army, Navy or Air Corp: Provided, That a
woman who lost her citizenship by reason of her marriage to an alien may be
repatriated in accordance with the provisions of this Act after the termination of
the marital status, [see PD 725] and
(3) By direct act of the National Assembly.
Section 3. Procedure incident to reacquisition of Philippine citizenship. The
procedure prescribed for naturalization under Act Numbered Twenty-nine
hundred and twenty-seven, [CA 473] as amended, shall apply to the reacquisition
of Philippine citizenship by naturalization provided for in the next preceding
section: Provided, That the qualifications and special qualifications prescribed in
section three and four of said Act shall not be required: And provided, further,
(1) That the applicant be at least twenty-one years of age and shall have resided
in the Philippines at least six months before he applies for naturalization;
(2) That he shall have conducted himself in a proper and irreproachable manner
during the entire period of his residence in the Philippines, in his relations with the
constituted government as well as with the community in which he is living; and
(3) That he subscribes to an oath declaring his intention to renounce absolutely
and perpetually all faith and allegiance to the foreign authority, state or
sovereignty of which he was a citizen or subject.
Section 4. Repatriation shall be effected by merely taking the necessary oath of
allegiance to the Commonwealth [Republic] of the Philippines and registration in
the proper civil registry.
XXX
Naturalization, meaning you are naturalized again in the Philippines.
You are a Filipino citizen and you lost it somehow, you return and you
apply for naturalization. It follows the same procedure as if you are
filing under CA 473. The only difference is that there is no more need
to file a declaration of intention. But the same substantive and
procedural requirements are required or are applicable. The second is
repatriation but repatriation under CA 63 is reserved for deserters in
the armed forces or Filipino women under the 1935 Constitution who
were married to foreigner husbands and by the laws of the country of
their foreigner husbands they are naturalized therein The third is by
act of Congress.
The next law we have on reacquisition is Republic Act 8171. This is
reserved, first, for Filipino women who lost their citizenship by reason
of marriage to aliens and, second, for natural-born Filipino citizens
who have been naturalized in a foreign country by reason of political
or economic necessity. Under RA 8171, if you fall under the 2
categories, you can be repatriated under the terms. Under RA 8171,
all you have to do is to take your oath of allegiance, have it verified by
the Bureau of Immigration as well as in the local civil registry.
However, the law says that you must not have suffered from any
disabilities. The disabilities mentioned in the law would be:
1. you are opposed to organized government;
2. you believe in violence over government;
3. you have been convicted of a crime involving moral
turpitude; and
4. you are suffering from mental alienation or incurable
contagious diseases.
If you have any of these disabilities, then you would be ineligible for
repatriation.
Republic Act No. 8171
An Act Providing For The Repatriation Of Filipinos Who Have Lost Their
Philippine Citizenship By Marriage to Aliens And Of Natural-Born Filipinos
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
Section 1. Filipino women who have lost their Philippine citizenship by marriage
to aliens and natural-born Filipinos who have lost their Philippine citizenship,
including their minor children, on account of political or economic necessity, may
reacquire Philippine citizenship through repatriation in the manner provided in
Section 4 of Commonwealth Act No. 63, as amended: Provided, That the
applicant is not a:
(1) Person opposed to organized government or affiliated with any association or
group of persons who uphold and teach doctrines opposing organized
government;
(2) Person defending or teaching the necessity or propriety of violence, personal
assault, or association for the predominance of their ideas;
(3) Person convicted of crimes involving moral turpitude; or
(4) Person suffering from mental alienation or incurable contagious diseases.
Sec. 2. Repatriation shall be effected by taking the necessary oath of allegiance
to the Republic of the Philippines and registration in the proper civil registry and in
the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the
pertinent alien certificate of registration and issue the certificate of identification
as Filipino citizen to the repatriated citizen.
XXX
The final law on repatriation is Republic Act 9225 The Citizenship
Reacquisition and Retention Act. This would cover only natural-born
Filipino citizens who have been naturalized abroad and therefore
under Commonwealth Act No. 63 are considered to have lost their
Philippine citizenship. This is only for those natural-born. There is a
simple filing of a petition under oath which you just file with the Special
Committee on Naturalization and you will have to be made to take
your oath of allegiance. And your oath of allegiance will have to be
registered with the local civil registry. Of course, there are applicable
fees but there is no more court proceeding and you are considered to
have reacquired your lost Filipino citizenship and/or, if you are
planning to be naturalized in the future, you are allowed to maintain
your citizenship even if you are naturalized. All you have to do is to file
your documents.
There is a special provision there for the children. Again, under RA
9225, there is no derivative citizenship to the spouses because again
this is reserved for the petitioner who was natural-born. But the minor
children of that applicant or petitioner can derive the citizenship of the
applicant, former natural-born, and they would include children who
are minors who are unmarried, whether legitimate, illegitimate or
adopted.
No problems perhaps easily perceivable if it were to be a legitimate or
an illegitimate child because that child from birth has Filipino blood.
Therefore, he is a Filipino citizen. For which his mother or father has
reacquired Filipino citizenship and he derives it, the question of
whether the child is natural-born or not is easy to answer. He would be
considered as natural-born because he is a citizen from birth because
of his Filipino blood relations.
But what if the child is adopted? You adopt the child of Obama, is that
child considered natural-born? Yes, the child did not do anything to
perfect or acquire citizenship. He just came here with his mother, who
applied under RA9225 and was considered to have reacquired her
lost Filipino citizenship. But what about the adopted child? Does he
derive the natural-born status of the mother when since birth he is not
a Filipino citizen?
Two other items here refer to the exercise of the Right of Suffrage. If a
Filipino under RA 9225 who reacquired his citizenship would want to
be elected to public office, he must have to qualify for the office and as
a requirement he must make a sworn renunciation of any and all
foreign citizenship. If it is to be a public appointive office, aside from
the qualifications, the person must have to make a sworn renunciation
of any and all foreign allegiances.
There is no question that these sworn renunciations are separate
requirements. It can be the same general statement (that you
renounce any and all foreign allegiances) which is a usual provision in
the COC.
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The question is asked under RA 9225: is dual citizenship then
allowed? The answer is YES, but if you are to be elected to public
office, dual citizenship is never allowed and it will never happen
because, under RA 9225, you must have to renounce any and all
foreign citizenship. So at the time you qualify, you are already a
Filipino citizen. Automatically, you are no longer considered a citizen
of the foreign country where you have been naturalized.
[Caete, Cham]
Republic Act No. 9225 August 29, 2003
AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO
ACQUIRE FOREIGN CITIZENSHIP PERMANENT.
AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS
AMENDED AND FOR OTHER PURPOSES
Section 1. Short Title this act shall be known as the "Citizenship Retention
and Re-acquisition Act of 2003."
Section 2. Declaration of Policy - It is hereby declared the policy of the State
that all Philippine citizens of another country shall be deemed not to have lost
their Philippine citizenship under the conditions of this Act.
Section 3. Retention of Philippine Citizenship - Any provision of law to the
contrary notwithstanding, natural-born citizenship by reason of their naturalization
as citizens of a foreign country are hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:
"I _____________________, solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws and
legal orders promulgated by the duly constituted authorities of the Philippines;
and I hereby declare that I recognize and accept the supreme authority of the
Philippines and will maintain true faith and allegiance thereto; and that I imposed
this obligation upon myself voluntarily without mental reservation or purpose of
evasion."
Natural born citizens of the Philippines who, after the effectivity of this Act,
become citizens of a foreign country shall retain their Philippine citizenship upon
taking the aforesaid oath.
Section 4. Derivative Citizenship - The unmarried child, whether legitimate,
illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire
Philippine citizenship upon effectivity of this Act shall be deemed citizenship of
the Philippines.
Section 5. Civil and Political Rights and Liabilities - Those who retain or re-
acquire Philippine citizenship under this Act shall enjoy full civil and political rights
and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must Meet the requirements
under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise
known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public in the Philippines shall meet the qualification for
holding such public office as required by the Constitution and existing laws and,
at the time of the filing of the certificate of candidacy, make a personal and
sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities
prior to their assumption of office: Provided, That they renounce their oath of
allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with
the proper authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which
they are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the
armed forces of the country which they are naturalized citizens.
XXX
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
June 28, 2012
STATE IMMUNITY FROM SUITS
A State is supposed to be immune from suits. This is based on the
theory that a state can do no wrong. So there can be no legal right as
against the State from which all rights depend. Also for practical
considerations, a State is immune from suits because if it were not so, it
may just spend all its time and resources defending itself against all
these cases.
Now, not in all cases is the State immune. There are 3 cases, generally,
which are considered as suits against the State but the common
denominator to all is that for any adverse decision against the defendant
(State), there is an appropriation of funds from the public treasury to
satisfy any detriment. The qualification here is that even if there is no
appropriation made but the adverse effect to the State is loss of its
property, then it would also be considered a suit against the State.
EXPRESS AND IMPLIED CONSENT
While the Constitution says the State cannot be sued, it can still be sued
with its consent. Consent must have to be express, in the sense that
there must have a legislation granting a party to sue the State.
The general law on consent is still Act 3815 and its amendment. It is an
act providing for general consent of money claims arising from contracts
entered by the government of the Philippines.
There are also instances where the SC allowed cases against
government based on implied consent as when the government enters
into a business contract.
Government has two primary functions:
governmental and
proprietary.
If the function is governmental (and even if government enters into that
kind of contract), there is no implied contract. There can only implied
consent when the State exercises its proprietary function.
The 2nd form of implied consent is when it is inequitable for the
government to claim immunity. The cases that have been discussed
using this are mostly on expropriation. There was one expropriation case
[Sir could not recall the case]. When sued, the defense was sovereign
immunity for suit. It may be a suit against the State because a
department of the government is involved and if made liable, then it will
need an appropriation from Congress. But the SC said that state
immunity cannot apply because it is inequitable for the State to claim
immunity.
The 3rd form implied consent is when the State initiates a complaint it
opens itself to a counterclaim. The reason is that the government is
considered to have descended to the level of an ordinary party and
therefore opens itself to any form of counterclaim.
The effectivity of the consent is only for the party to sue. If there is no
consent, then the case cannot prosper. The case should be dismissed. If
there is consent, the case can prosper, the party can prove liability. And
if so warranted by the evidence presented, the State will be liable.
However, consent is good only up to the rendition of the decision. It is
not effective at the stage of the execution of judgment. If there is a
judgment in favor of the claimant, it will be presented to COA to allow it
to have some determination if it could pay the judgment debt. If theres
no money to pay, the award will be presented as one of the items to be
appropriated for when the President presents the general appropriations
to Congress. If so funded, that will be included in the next years
appropriations law. That will be the time you will paid. You cannot just
execute or garnish bank accounts of government entities.
In Philippine Agila vs. Lichauco, Philippine Agila filed a case for
injuction against DOTC with a prayer for damages. If it was only a case
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for injunction, it would not be a suit against the State. Because of the
prayer for damages, it would be a suit against the State unless if the
public officers are sued personal capacity.
Is TESDA an incorporated government entity? TESDA was created
under RA7795. If a GOCC has an original charter, normally, it has the
power to sue and the corresponding liability to be sued. The funds of
GOCCS with original charter, although conserved public funds, are not
funds under public treasury. This money can be drawn out without
congressional appropriation. All you need is a withdrawal slip. But in the
case of TESDA, the SC said that although it may be ordinarily suable as
it is an office created by law, it however performs governmental function.
Therefore, it is not suable ordinarily without consent.
If you have read the case of Mateo Didacan vs. ATO this case started
way back in 1948 when a portion of a property of Mateo Didacan was
used by the ATO as part of an airport somewhere. So the property
owner sued ATO for the value of the property used. That case eventually
went up to the SC, where the SC said that ATO should be liable. When
the heirs of the petitioner sought for the execution of the decision with
the RTC, where the case originated, the latter refused to issue the writ of
execution.
The general principle that even if ATO is suable by the way, the main
decision was that ATO is suable because it is inequitable for the ATO to
claim immunity because the power of eminent domain is involved.
Therefore the property owner had a right to claim for its value. So when
the RTC refused to issue the writ for execution, the reasoning was that it
is good only up to the decision.
It went to the SC again. In 2010 the SC discussed the reason why ATO
should be liable. It directed the RTC to issue the writ of execution based
on the principle that a judgment not executed is an empty judgment.
The general rule again is that even if one is suable and is found liable,
execution must come as a matter of right. Because of lapse of time the
SC somehow made this case an exception and used the same rule on
equity.
This case of ATO vs. Ramos has the same ruling. A portion of the
property of the private respondent was taken for airport extension.
Same thing, the property owner filed a suit against ATO and similarly
ATO used the immunity doctrine as defense. The SC said that it is not
immune. It said that ATO is not immune to begin with because it is an
incorporated entity created for proprietary functions. Airport maintenance
in relation to tourism and travel is not an essential governmental
function. It is a proprietary function and under the principle that if the
government performs proprietary functions, it is liable. So that is the
case of ATO vs. Ramos.
SUABILITY VS. LIABILITY
These two terms are sometimes confused because suability is
dependent on whether or not there is consent. If there is no consent, the
State is not suable.
Liability, on the other hand, is dependent on the facts and evidence of
the case. The defendant maybe suable because of consent but does not
automatically mean that the defendant is liable. Liability is dependent
upon the facts, the evidence and the applicable law or laws of the case.
Now there is this old case of Merritt vs. Government of the Philippine
Islands. This involves a dam truck owned by the municipality which
figured an accident resulting to death and injury of a private individual.
The municipality was sued. Is the LGU suable? Yes. Under the LGC, an
LGU has corporate powers just like ordinary corporations, unless limited
by the LGC and applicable laws. It has the power to sue and be sued.
So there is no question that the Municipality can be sued. But is the
municipality liable? The SC determined the case based on what function
the municipality has been performing when the accident happened. The
dam truck was being used in trailing sand and gravel from the river
quarry for the rehabilitation of the Municipal Hall. The SC state that it
 CONSTITUTIONAL LAW REVIEW: IV-Manresa
THE MONTEJO LECTURES 2012-2013

was for governmental function. Thus, the Municipality is not liable. Who
is liable then? It is the driver who is liable. His negligence was not
supposed to be the act of the municipality. So suability is different from
liability.
Now there are other items with respect to immunity.
Royal prerogative of dishonesty
This is still state immunity but normally claimed by the foreign states who
are sued in our jurisdiction. It first came about in one of the cases
involving the US government when an American service personnel was
sued in the Philippine Islands. The foreign state claimed royal
prerogative. So, can the foreign state claim state immunity? The answer,
of course, is yes. This is based on international law (equality between
and among states) that one State cannot be placed under the jurisdiction
of another State.
There is one case by Asian Development Bank. The employee sued
ADB for labor law violation. Now the question is, is ADB immune from
labor law violation? It was found out that ADB is immune from any suit
except with something to do with public transaction. So if there are
loans, sale securities and other related activities in relation to their
banking services, they would be liable. But in that case, since it involved
a labor law violation, it is not in relation to their banking services, they
would not be liable. So it has to be determined based on the agreement
of the international entity and the host country.
Again, these do not exclusively pertain to state immunity from suit.
Nevertheless, with respect to foreign entities, natural or juridical, there is
some point of immunity from the applicability of our local laws. Let us
continue tomorrow.
[Dumandan, Gab/ Alonzo, Ran]

The other discussion with respect to state immunity is with respect to

foreign nationals whether natural or juridical.

The first will be the Vienna Convention of Diplomatic Immunity of 1961.

This confers immunity on
1. Heads of mission
2. Ambassadors
3. Nuncios and charge de affairs.

They are all considered to be absolutely immune in our jurisdiction. If

they come here, commit any act, whether personal or official resulting to
law violation, they cannot be placed under our criminal justice system.
In fact, the Panamanian envoy who is allegedly to have committed the
crime of rape against a Filipina is immune. The DOJ cannot do anything.
Secretary De Lima, for a while, took the heat for that for allowing that
Panamanian envoy to leave because he enjoyed diplomatic immunity
under the 1961 Vienna Convention. He could not be sued or placed
under arrest because Philippine laws cannot be applied. At best, he can
be declared persona non-grata where he maybe refused entry under the
power of the President over foreign affairs.

There is the 1963 Vienna Convention on Consular Relations involving

consular and functionary duties of officials, employees of consular
offices of foreign countries in the Philippines. They enjoy relative
immunity. Such immunity extends only to all official acts. If they are
sued because of non-official acts, then the cause of action may prosper.
But if it extends from official conduct, then they are supposed to be
immune from any application of our laws.

Then we have international organizations. An example here would be

the UN and all its attached agencies. Because of the treaty creating it,
the UN has the capacity to invoke absolute immunity from the attributes
of our laws, criminal or civil. It cannot be held liable in our laws. It is not
because it is allowed to commit a crime; it is because of the agreement
that it should function properly without any hindrance from the
application of our law. Applicability of Labor Laws would not be valid to
it more so with criminal act.

Theres a question in the past [bar exams]. UN leased an office space

and was sued for back rentals. The answer would be: it should be
exempt from liability. But that is just in the extreme.

There are also non-governmental organizations, international in

character, which also enjoyed some form of immunity. Just like
international organizations, their immunities would have to be dependent
upon the previous declaration. Remember that case where a bank was
sued by an employee for illegal dismissal and non-payment of salary
and other benefits? The question there is: is it liable under the Labor
Code?

If it is any other organization whether intergovernmental or not, the

immunity must have to be dependent on the treaty or declaration of the
agreement of these NGOs/IGOs and the host country.

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July 3, 2012
THE STRUCTURE AND POWERS OF
GOVERNMENT
A. THE LEGISLATIVE DEPARTMENT
So we start with the Legislative Department.
Composition, Qualifications, and Terms of Office
Theres nothing much there. Perhaps, for your consideration, we will
have to emphasize on the residency requirements because we
understand that the word residence should mean domicile. Note that
the person can actually have two residences: one is the present or
parent residence, while the other is the domicile. What the Constitution
requires is the domicile of the person. There are two things there:
the intent of returning (animus revertendi) i.e.
the person must have the intent of returning to the
place even though he is temporarily absent,
the continuing intention of returning to that
place(animus manendi), and that place should be
called the domicile.
The person is actually entitled to change his actual domicile, and he is
allowed to do so if he would be able to show/satisfy three basic
requirements:
first, the good faith intention of changing ones
domicile;
second, the act of actually uprooting himself from
the previous to the new place he considers his
new domicile; and
third, the performance of an act which would
actually show that he is actually changing his
domicile from the original to the new one.
In the case of Romualdez vs. Comelec, the Supreme Court also
mentioned that for purposes of civil law, residence is different from that
discussed in political law because for a spouse/wife, the domicile of
choice may not be the actual domicile by reason of her marriage,
considering that in civil law the spouses must have to maintain the
conjugal dwelling (that they must agree on it; that if there is a
disagreement, the husbands decision must have to be respected). Now,
if the wife would follow the domicile of the husband because of that civil
law provision, that does not mean that the wife has changed her legal
residence. She may have an actual residence with the husband where
the conjugal dwelling is but she may be able to maintain her legal
domicile. So, that may be allowed.
IMELDA ROMUALDEZ-MARCOS vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO
G.R. No. 119976 September 18, 1995
Without as much belaboring the point, the term residence may mean one thing in
civil law (or under the Civil Code) and quite another thing in political law. What
stands clear is that insofar as the Civil Code is concerned- those affecting the
rights and obligations of husband and wife the term residence should only be
interpreted to mean "actual residence." The inescapable conclusion derived from
this unambiguous civil law delineation therefore, is that when petitioner married
the former President in 1954, she kept her domicile of origin and merely gained a
new home, not a domicilium necessarium.
Minors would normally follow the domicile of parents, but once the minor
is of age s/he could actually choose his/her legal residence. There need
not have to be a change of residence.
Now, in the case of Mitra vs. Comelec, the SC discussed the issue of: if
one is to change his domicile to another what should that new residence
be? Because in that case, what happened was Mitra, who used to be the
representative of one of the districts of Palawan, decided to run as
governor of Palawan but because he had to transfer his residence to be
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able to qualify as a voter and therefore candidate as position of
governor, he transferred to what used to be an abandoned warehouse
where he is supposed to be maintaining his residence. The main
argument of the private respondent here was to the effect that the actual
standard or condition of the new place of residence is not actually
considered to be consistent with the lifestyle/status in society of Mitra.
The SC called it a non-legal standard. To put it in different context, if you
were to change your residence, is there a requirement in law that your
residence should be of this value, of this much with so much amenities,
to be considered as habitable, so that it would be considered as your
new legal residence? SC said NO. theres no such thing as non-legal
standards for a new place of residence to be considered as such for so
long as it would be shown that theres an intent to transfer your
residence from one place to the other and so to maintain that new
residence as your new house/home, then that may be considered as a
valid change of domicile regardless of whether it is of such considerable
value or it is consistent with your status/condition with society that the
new residence should be. So, these are non-legal standards.
Mitra vs. Commission on Elections, Antonio Gonzales
and Orlando Balbon, Jr.
622 SCRA 744 (July 2010)
In considering the residency issue, the dwelling where a person permanently
intends to return to and to remain his or her capacity or inclination to decorate
the place, or the lack of it, IS IMMATERIAL. Comelec gravely abused its
discretion when it determined the fitness of a dwelling as a persons residence
based solely on very personal and subjective assessment standards when
the law is replete with standards that can be used. Comelec used wrong
considerations in arriving at the conclusion that Mitras residence is not the
residence contemplated by law.
And, with respect to qualifications, you may have remembered the case
of SJS vs. the Dangerous Drugs Board. When the Comelec issued a
resolution pursuant to the law requiring mandatory drug testing,
members of Congress, among others, must have to submit to a drug
examination and the clearance must have to be included as one of the
documentary requirements before a COC may be given due course.
Pimentel questioned that and the SC sustained him because that would
add up to the qualifications. The qualifications to Congress in the
Constitution are quite simple, theres: age, residence, ability to read and
write (no education degree required), and not otherwise disqualified by
law. So, as simple as that. For a legislation or a Comelec resolution to
add more to the qualifications would not be valid under the Constitution
because the requirements cannot be modified or amended by any law or
Comelec Resolution.
SOCIAL JUSTICE SOCIETY (SJS) vs.
DANGEROUS DRUGS BOARD and (PDEA)
570 SCRA 410 (November 3, 2008)
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC
resolution, effectively enlarges the qualification requirements enumerated in the
Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably
requires a candidate for senator to be certified illegal-drug clean, obviously as a
pre-condition to the validity of a certificate of candidacy for senator or, with like
effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as
senator-elect. The COMELEC resolution completes the chain with the proviso
that [n]o person elected to any public office shall enter upon the duties of his
office until he has undergone mandatory drug test. Viewed, therefore, in its
proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC
Resolution add another qualification layer to what the 1987 Constitution, at the
minimum, requires for membership in the Senate. Whether or not the drug-free
bar set up under the challenged provision is to be hurdled before or after election
is really of no moment, as getting elected would be of little value if one cannot
assume office for non-compliance with the drug-testing requirement.
It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165,
that the provision does not expressly state that non-compliance with the drug test
imposition is a disqualifying factor or would work to nullify a certificate of
candidacy. This argument may be accorded plausibility if the drug test
requirement is optional. But the particular section of the law, without exception,
made drug-testing on those covered mandatory, necessarily suggesting that the
obstinate ones shall have to suffer the adverse consequences for not adhering to
the statutory command. And since the provision deals with candidates for public
office, it stands to reason that the adverse consequence adverted to can only
 CONSTITUTIONAL LAW REVIEW:
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refer to and revolve around the election and the assumption of public office of the
candidates. Any other construal would reduce the mandatory nature of Sec. 36(g)
of RA 9165 into a pure jargon without meaning and effect whatsoever.
It ought to be made abundantly clear, however, that the unconstitutionality of Sec.
36(g) of RA 9165 is rooted on its having infringed the constitutional provision
defining the qualification or eligibility requirements for one aspiring to run for and
serve as senator.
TERM OF OFFICE
The case of Aldovino vs. Comelec. For members of Senate, they shall
not serve for more than two consecutive terms; for members of HR, they
shall not serve for more than three consecutive terms. The applicability
of the consecutive terms must have to follow the elected and served
rule.
Aldovino Jr. vs. Comelec
609 SCRA 234 (2009)
Article X, Section 8 both by structure and substance fixes an elective officials
term of office and limits his stay in office to 3 consecutive terms as an inflexible
rule that is stressed, no less, by citing voluntary renunciation as an example of
circumvention. The provision should be read in the context of interruption of term,
NOT in the context of interrupting the full continuity of the exercise of the power of
the elective position. The voluntary renunciation it speaks of refers only to the
elective officials voluntary relinquishment of office and loss of title to this office. It
does not speak of the temporary cessation of the exercise of power or authority
that may occur for various reasons, with preventive suspension being only one of
them. Quoting Latasa the law contemplates a rest period during which the local
elective official steps down from office and ceases to exercise power or authority
over the inhabitants of the territorial jurisdiction of a particular government unit.
Strict adherence to the intent of the three-term limit rule demands that preventive
suspension should not be considered an interruption that allows an elective
officials stay in office beyond three terms. A preventive suspension cannot simply
be a term interruption because the suspended official continues to stay in office
although he is barred from exercising the functions and prerogatives of the office
within the suspension period. The best indicator of the suspended officials
continuity in office is the absence of a permanent replacement and the lack of the
authority to appoint one since no vacancy exists.
Even if you are elected but you have not served, the question is should
that be taken as your term? In the case of Koko Pimentel, perhaps, it
should be taken because he has served in such capacity. If you ask the
reverse, what about Migz Zubiri, should the first three years be taken as
his first term? The answer is NO because he has not been elected
though he has served. So, one must have been elected and served in
such capacity.
Now, this case of Aldovino invloves local elective officials. But because
we follow the same rule or principle in service of consecutive terms, the
elected & served rule should apply. One must have been elected to the
position and served in such capacity. So, for members of Congress, that
should follow. One must have to be elected and served. For local public
officials, this particular case involves assumption to office because of the
vacancy. So, for example, theres a vacancy in the office of the mayor or
governor, if the vice mayor or vice governor would succeed, the question
is, would his assumption/ succession to that office be considered as his
first term? The answer is NO because he was not elected to that
position, though he had served, because, again, the elected and served
rule applies for purposes of consecutive terms.
Asistio vs. Aguirre (619 SCRA 518). This case was filed because the
CoC of Asistio indicated a false or non-existent address. Asistio, coming
from an old family in Caloocan, indicated in his CoC his address which
was later found to be non-existent/false. So, the argument here is: is the
fact that the address is non-existent/false constitutive of evidence that he
is not a resident of that place? SC said No. They have considered some
other evidence, and I think they have taken judicial notice that the family
is really a resident of that place. While it may perhaps constitute an
election offense (falsified material data in the CoC) that definitely would
not constitute change of domicile. Because, again, proof of your
domicile/ change of domicile would be dependent on some other factors
other than the non-existence of an address or a false address. If he is
shown to have been a resident of that place based on previous
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elections, the fact that the new CoC indicates a false or a non-existent
address will not make a case of him having changed his domicile. To
change ones domicile legally would require those three (3) conditions.
LUIS A. ASISTIO vs. HON. THELMA CANLAS TRINIDAD-PE AGUIRRE
G.R. No. 191124 619 SCRA 518 (April 27, 2010)
Asistio has always been a resident of Caloocan City since his birth or for more
than 72 years. His family is known to be among the prominent political families in
Caloocan City. In fact, Asistio served in public office as Caloocan City Second
District representative in the House of Representatives, having been elected as
such in the 1992, 1995, 1998, and 2004 elections. In 2007, he also sought
election as City Mayor. In all of these occasions, Asistio cast his vote in the same
city. Taking these circumstances into consideration, gauged in the light of the
doctrines above enunciated, it cannot be denied that Asistio has qualified, and
continues to qualify, as a voter of Caloocan City. There is no showing that he has
established domicile elsewhere, or that he had consciously and voluntarily
abandoned his residence in Caloocan City. He should, therefore, remain in the list
of permanent registered voters of Precinct No. 1811A, Barangay 15, Caloocan
City.
That Asistio allegedly indicated in his Certificate of Candidacy for Mayor, both for
the 2007 and 2010 elections, a non-existent or false address, or that he could not
be physically found in the address he indicated when he registered as a voter,
should not operate to exclude him as a voter of Caloocan City. These purported
misrepresentations in Asistios COC, if true, might serve as basis for an election
offense under the Omnibus Election Code (OEC), or an action to deny due
course to the COC. But to our mind, they do not serve as proof that Asistio has
abandoned his domicile in Caloocan City, or that he has established residence
outside of Caloocan City.
APPORTIONMENT of DISTRICTS
The cases are on apportionment of districts. The case of Sema vs.
Comelec involves the power or authority of the Regional Legislative
Body [ARMM] to create additional districts. So, what are the basic rules
in the creation of districts for purposes of district representatives? Under
the Constitution, each district has one representative. That should be a
given. Each province must also have one representative. For a city with
a population of at least 250,000, that will have one representative also.
The constitution however allows the increase of the number of
representatives based on basically the increase in population. So, it
must have to be provided for by law.
BAI SANDRA S. A. SEMA vs COMELEC GR No. 177597 558 SCRA 700 (July
16, 2008)
Clearly, a province cannot be created without a legislative district because it will
violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the
Ordinance appended to the Constitution. For the same reason, a city with a
population of 250,000 or more cannot also be created without a legislative district.
Thus, the power to create a province, or a city with a population of 250,000 or
more, requires also the power to create a legislative district. Even the creation of
a city with a population of less than 250,000 involves the power to create a
legislative district because once the citys population reaches 250,000, the city
automatically becomes entitled to one representative under Section 5 (3), Article
VI of the Constitution and Section 3 of the Ordinance appended to the
Constitution. Thus, the power to create a province or city inherently involves the
power to create a legislative.
Section 5 (1), Article VI of the Constitution vests in Congress the power to
increase, through a law, the allowable membership in the House of
Representatives. Section 5 (4) empowers Congress to reapportion legislative
districts. The power to reapportion legislative districts necessarily includes the
power to create legislative districts out of existing ones. Congress exercises these
powers through a law that Congress itself enacts, and not through a law that
regional or local legislative bodies enact. The allowable membership of the
House of Representatives can be increased, and new legislative districts of
Congress can be created, only through a national law passed by Congress. In
Montejo v. COMELEC, we held that the power of redistricting x x x is traditionally
regarded as part of the power (of Congress) to make laws, and thus is vested
exclusively in Congress.
This textual commitment to Congress of the exclusive power to create or
reapportion legislative districts is logical. Congress is a national legislature and
any increase in its allowable membership or in its incumbent membership through
the creation of legislative districts must be embodied in a national law. Only
Congress can enact such a law. It would be anomalous for regional or local
 CONSTITUTIONAL LAW REVIEW:
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legislative bodies to create or reapportion legislative districts for a national
legislature like Congress. An inferior legislative body, created by a superior
legislative body, cannot change the membership of the superior legislative body.
Now, in the case of Aquino vs. Comelec, the question here was
whether or not the province of Catanduanes could be divided. what is
the requirement for creating a new province? Because again, each
province must have one representative.
SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE ROBREDO
vs. COMMISSION ON ELECTIONS
GR no. 189793 617 SCRA 623 (April 7, 2010)
There is no specific provision in the Constitution that fixes a 250,000 minimum
population that must compose a legislative district..
The Mariano case (Mariano vs Comelec 312 Phil 259 (1995)) limited the
application of the 250,000 minimum population requirement for cities only to its
initial legislative district. In other words, while Section 5(3), Article VI of the
Constitution requires a city to have a minimum population of 250,000 to be
entitled to a representative, it does not have to increase its population by another
250,000 to be entitled to an additional district.
There is no reason why the Mariano case, which involves the creation of an
additional district within a city, should not be applied to additional districts in
provinces. Indeed, if an additional legislative district created within a city is not
required to represent a population of at least 250,000 in order to be valid, neither
should such be needed for an additional district in a province, considering
moreover that a province is entitled to an initial seat by the mere fact of its
creation and regardless of its population.
Apropos for discussion is the provision of the Local Government Code on the
creation of a province which, by virtue of and upon creation, is entitled to at least
a legislative district. Thus, Section 461 of the Local Government Code states:
Requisites for Creation. (a) A province may be created if it has an average
annual income, as certified by the Department of Finance, of not less than Twenty
million pesos (P20,000,000.00) based on 1991 constant prices and either of the
following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as
certified by the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants
as certified by the National Statistics Office.
Notably, the requirement of population is not an indispensable requirement, but is
merely an alternative addition to the indispensable income requirement.
So, to create more, to add more representatives, there are technically
two options: (1) add a district to an existing city or a province, or (2)
create a new city/province. So, if it will have to be a city where you have
to add an additional district, the 250,000 population requirement is
supposed to be mandatory for the first district representative. For the
additional district, the 250,000 population is not literally complied with for
so long as the number of the increase in population, the number is
nearer to 250,000, add another more, there will be another district
allowable. For a province, its creation is dependent on the income plus
the area: 200 M in income, area of 2,000 km2; OR 250,000 population.
So, its not all three, but the income and area OR income and
population.
The 200 km2 however, must have to be continuous, and this is to avoid
gerrymandering. And this is not to apply in cases of island provinces.
Thats the ruling in the case of Navarro vs. Ermita involving the law
creating the province of Dinagat Islands.
RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA vs.
EXECUTIVE SECRETARY EDUARDO ERMITA
G.R. No. 180050 April 12, 2011
The creation of a new province shall not reduce the land area, population, and
income of the original LGU or LGUs at the time of said creation to less than the
prescribed minimum requirements. All expenses incidental to the creation shall be
borne by the petitioners.
It bears scrupulous notice that from the above cited provisions, with respect to the
creation of barangays, land area is not a requisite indicator of viability. However,
with respect to the creation of municipalities, component cities, and provinces, the
three (3) indicators of viability and projected capacity to provide services, i.e.,
income, population, and land area, are provided for.
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But it must be pointed out that when the local government unit to be created
consists of one (1) or more islands, it is exempt from the land area requirement
as expressly provided in Section 442 and Section 450 of the LGC if the local
government unit to be created is a municipality or a component city, respectively.
This exemption is absent in the enumeration of the requisites for the creation of a
province under Section 461 of the LGC, although it is expressly stated under
Article 9(2) of the LGC-IRR.
There appears neither rhyme nor reason why this exemption should apply to
cities and municipalities, but not to provinces. In fact, considering the physical
configuration of the Philippine archipelago, there is a greater likelihood that
islands or group of islands would form part of the land area of a newly-created
province than in most cities or municipalities. It is, therefore, logical to infer that
the genuine legislative policy decision was expressed in Section 442 (for
municipalities) and Section 450 (for component cities) of the LGC, but was
inadvertently omitted in Section 461 (for provinces). Thus, when the exemption
was expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended
to correct the congressional oversight in Section 461 of the LGC and to reflect
the true legislative intent. It would, then, be in order for the Court to uphold the
validity of Article 9(2) of the LGC-IRR.
Now, the case of Aldaba vs. Comelec is basically on: when should the
number of the population be certified for purposes of creating new
districts or provinces for that matter? The SC said that it must be based
on midterm figures as certified by the National Statistics Coordinating
Board and issued by the administrator of the NSO. What do you mean
by midterm figures? It must be the year in between elections. It is not
to be nearer the elections but in between elections to determine whether
the population requirement has been met.
ALDABA vs. COMELEC
G.R. No. 188078 January 25, 2010
It was declared by the Supreme Court that the R.A. 9591 is unconstitutional for
being violative of Section 5 (3), Article VI of the 1987 Constitution and Section 3
of the Ordinance appended to the 1987 Constitution on the grounds that, as
required by the 1987 Constitution, a city must have at least 250,000 population. In
relation with this, Regional Director Miranda issued a Certification which is based
on the demographic projections, was declared without legal effect because the
Regional Director has no basis and no authority to issue the Certification based
on the following statements supported by Section 6 of E.O. 135 as signed by
President Fidel V. Ramos, which provides:
The certification on demographic projection can be issued only if such are
declared official by the Natl Statistics Coordination Board. In this case, it was not
stated whether the document have been declared official by the NSCB.
The certification can be issued only by the NSO Administrator or his designated
certifying officer, in which case, the Regional Director of Central Luzon NSO is
unauthorized.
The population projection must be as of the middle of the year, which in this case,
the Certification issued by Director Miranda was undated.
Incidentally, we must have to think of it as an exception to the
application of the general rule on the requirements for creating new
cities out of old municipalities. They are exempted from the application
of the new law increasing the income requirement. But as to the
population, as to the area, they must have to be followed. Only the
income requirement has been changed. And there is an additional
requirement that if it were to be additional provinces (new provinces
carved out of existing province) the income, population, or the area
requirement of the remaining/old province must not have to be affected
substantially.
PARTY LIST SYSTEM
Now, there are 250 members in the lower house, 20% of which should
belong to the party list. Now, with respect to the party list, there are a
few discussions here.
We have RA 7941, the Party List System Act, which actually governs the
election of party list representatives. Now, based on the law, there are 2
basic considerations for the person to eventually be allowed to sit in the
HR. First, is who are the qualified groups? Now, the law has provided for
the qualification for registration of parties to participate in the party list
system election. And, in the case of Veterans Party v. Akbayan [Note:
Sir was referring to the case of Bagong Bayani], the SC listed down 8
 CONSTITUTIONAL LAW REVIEW:
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guidelines to determine who are qualified groups: one, they must
represent the marginalized and underprivileged; they must comply with
the policy to enable the marginalized and underrepresented to be
elected in Congress; third, they should not represent the religious sector;
fourth, they are not of the disqualified groups; fifth, they are not adjunct
to, funded or assisted by the government; sixth, nominees must likewise
qualify; seventh, the nominees must also represent the marginalized and
underrepresented; and the nominees must be able to contribute to
beneficial legislation. So, 8 guidelines were set in this case.
Ang Bagong-Bayani v. Comelec and companion cases
G.R. No. 147589 June 26, 2001
First, the political party, sector, organization or coalition must represent the
marginalized and underrepresented groups identified in Section 5 of RA 7941. In
other words, it must show -- through its constitution, articles of incorporation,
bylaws, history, platform of government and track record -- that it represents and
seeks to uplift marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and underrepresented. And it
must demonstrate that in a conflict of interests, it has chosen or is likely to choose
the interest of such sectors.
Second, while even major political parties are expressly allowed by RA 7941 and
the Constitution to participate in the party-list system, they must comply with the
declared statutory policy of enabling Filipino citizens belonging to marginalized
and underrepresented sectors x x x to be elected to the House of
Representatives. In other words, while they are not disqualified merely on the
ground that they are political parties, they must show, however, that they
represent the interests of the marginalized and underrepresented.
Third, in view of the objections directed against the registration of Ang Buhay
Hayaang Yumabong, which is allegedly a religious group, the Court notes the
express constitutional provision that the religious sector may not be represented
in the party-list system.
Fourth, a party or an organization must not be disqualified under Section 6 of RA
7941, which enumerates the grounds for disqualification as follows:
(1) It is a religious sect or denomination, organization or association organized
for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party,
foundation, organization, whether directly or through any of its officers or
members or indirectly through third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at
least two per centum (2%) of the votes cast under the party-list system in the two
(2) preceding elections for the constituency in which it has registered.
Note should be taken of paragraph 5, which disqualifies a party or group for
violation of or failure to comply with election laws and regulations. These laws
include Section 2 of RA 7941, which states that the party-list system seeks to
enable Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties x x x to become members of the House of
Representatives. A party or an organization, therefore, that does not comply with
this policy must be disqualified.
Fifth, the party or organization must not be an adjunct of, or a project organized or
an entity funded or assisted by, the government. By the very nature of the party-
list system, the party or organization must be a group of citizens, organized by
citizens and operated by citizens. It must be independent of the government. The
participation of the government or its officials in the affairs of a party-list candidate
is not only illegal and unfair to other parties, but also deleterious to the objective
of the law: to enable citizens belonging to marginalized and underrepresented
sectors and organizations to be elected to the House of Representatives.
Sixth, the party must not only comply with the requirements of the law; its
nominees must likewise do so. Section 9 of RA 7941 reads as follows:
SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated
as party-list representative unless he is a natural-born citizen of the Philippines, a
registered voter, a resident of the Philippines for a period of not less than one (1)
year immediately preceding the day of the election, able to read and write, a bona
fide member of the party or organization which he seeks to represent for at least
ninety (90) days preceding the day of the election, and is at least twenty-five (25)
years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but
not more than thirty (30) years of age on the day of the election. Any youth
sectoral representative who attains the age of thirty (30) during his term shall be
allowed to continue in office until the expiration of his term.
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Seventh, not only the candidate party or organization must represent
marginalized and underrepresented sectors; so also must its nominees. To
repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens who
belong to marginalized and underrepresented sectors, organizations and parties.
Surely, the interests of the youth cannot be fully represented by a retiree; neither
can those of the urban poor or the working class, by an industrialist. To allow
otherwise is to betray the State policy to give genuine representation to the
marginalized and underrepresented.
Eighth, as previously discussed, while lacking a well-defined political
constituency, the nominee must likewise be able to contribute to the formulation
and enactment of appropriate legislation that will benefit the nation as a
whole. Senator Jose Lina explained during the bicameral committee proceedings
that the nominee of a party, national or regional, is not going to represent a
particular district x x x.
Now, nominees must have to be qualified based on the qualifications of
regular members of the HR. The additional requirements or
qualifications are based on law. They must also represent the
marginalized and underrepresented. The question is raised because
should the requirement be literal? Should that nominee be a member of
the marginalized and underrepresented sector which the party
represents? The answer is NO. The common discussion is that it is an
ideological requirement, not a literal requirement. For so long as that
person, by ideology and practice, represents the interests of the
marginalized and underrepresented, then he is qualified to be a
nominee. An example, perhaps, may be Ms. Gina Lopez of ABS-CBN.
She is against mining, shes pro-environment. And if she were to be the
nominee of a party which represents the marginalized and
underrepresented sector in those areas, the question is, is she qualified
to be a nominee even if she does not belong to that marginalized and
underrepresented sector? The answer would be YES, if she has that
ideological requirement. That I think is the basis why one of the sons of
GMA was not disqualified as a nominee even if he is not a security
guard. It is because he understands their plight. Having been growing up
with security detail, he could very well relate to them! Most of you do not
have secu!
Now, the nominees must have to be in a list and the number/order which
may come on the list would be the order by which they will sit if their
party should get a seat in Congress. The order in the list cannot be
changed except for natural or legal causes. Natural, meaning death or
permanent disability where the nominee cannot anymore serve because
its not an ordinary physical incapacity. What if you represent the blind?
Should the first nominee be blind also? So, physical incapacity does not
necessarily mean a legal ground to change the order of the list of the
nominees to be submitted to the Comelec. The normal legal ground
would be removal from the party which you represent.
Now, theres one case here, this case of Amores vs. HRET. This
involves CIBAC, the party representing the youth sector. The first
nominee here is Joel Villanueva, the son of Bro. Eddie. Under the law, if
the party represents the youth sector, the nominees must also be within
the range of age up to the age of thirty. If they turn thirty during their
term, they will be allowed to serve for the remainder of the term. In the
case of Villanueva, he turned thirty while seated and thereafter he could
no longer be allowed to sit.
MILAGROS E. AMORES vs. HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL and EMMANUEL JOEL J. VILLANUEVA
G.R. No. 189600 June 29, 2010
As the law states in unequivocal terms that a nominee of the youth sector must at
least be twenty-five (25) but not more than thirty (30) years of age on the day of
the election, so it must be that a candidate who is more than 30 on election day is
not qualified to be a youth sector nominee. Since this mandate is contained in RA
No. 7941, the Party-List System Act, it covers ALL youth sector nominees vying
for party-list representative seats.
As petitioner points out, RA No. 7941 was enacted only in March, 1995. There is
thus no reason to apply Section 9 thereof only to youth sector nominees
nominated during the first three congressional terms after the ratification of the
Constitution in 1987. Under this interpretation, the last elections where Section 9
applied were held in May, 1995 or two months after the law was enacted. This is
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certainly not sound legislative intent, and could not have been the objective of RA
No. 7941.
There is likewise no rhyme or reason in public respondents ratiocination that after
the third congressional term from the ratification of the Constitution, which expired
in 1998, Section 9 of RA No. 7941 would apply only to sectoral parties registered
exclusively as representing the youth sector. This distinction is nowhere found in
the law. Ubi lex non distinguit nec nos distinguire debemus. When the law does
not distinguish, we must not distinguish.
The Court finds that private respondent was not qualified to be a nominee of
either the youth sector or the overseas Filipino workers and their families sector in
the May, 2007 elections.
The records disclose that private respondent was already more than 30 years of
age in May, 2007, it being stipulated that he was born in August, 1975. Moreover,
he did not change his sectoral affiliation at least six months before May, 2007,
public respondent itself having found that he shifted to CIBACs overseas Filipino
workers and their families sector only on March 17, 2007.
That private respondent is the first nominee of CIBAC, whose victory was later
upheld, is of no moment. A party-list organizations ranking of its nominees is a
mere indication of preference, their qualifications according to law are a different
matter.
TERM AND VACANCY
The persons who sit representing the party are also covered by the three
term limitation. So a person who has served for three terms representing
a party can no longer be eligible as the representative of that party in the
succeeding election. Now, I raised that question before, can that person
change his party and thereafter be a nominee of another party in the
succeeding election? The law merely requires that you must have to be
a member of a party six (6) months before the election to be qualified as
a nominee. So, for example, Teddy Casio, this is his third term already.
He is running for the Senate. Now, what if Teddy Casio would resign
from his party more than six months from the next election and then
transfer to another party and be the first nominee. And if that party will
win a seat in the HR based on the applicable rules on the allocation of
seats, can he sit as well?
He can no longer sit because the three term limitation with respect to the
party list will refer to the one sitting, not on the party. The party can have
seats perpetually. Now, one of the innovations to the party list system,
perhaps, as you have read in the papers, is that Comelec is trying to
rearrange the list based on drawing of lots. Comelec wanted to change
the sequence or order as the party list names appear on the ballot, now
that the elections are supposed to be automated. In the 2010 automated
elections, the parties were listed alphabetically. So who would ever read
the middle names? It would always be the first and the last! So, the
order should be determined by drawing of lots.
Now, the allocation of seats for the party list have been substantially
changed based on the ruling of Banat vs. Comelec (decided after the
2007 elections). Where before, the idea supposedly was that the parties
must have to secure 2% from the total number of the votes cast in the
party list election to be able to get a seat. Now, that is no longer
followed. There are two seats to be discussed. The first is the so-called
guaranteed seats, and the second would be the additional seats. The
guaranteed seats are guaranteed for those parties who have garnered
at least two percent of the total number of votes cast in the party list
system election. Now, since the seats for the party list would comprise
20% of the total number of representatives so lets assume a number
of 250, get 20%, that would be 50. Now, if the guaranteed seats, like
say, are 25, there will be 25 remaining seats for the party list. Now, who
gets these additional seats? Theres a formula which is supposed to be
used to guarantee these other seats which should be distributed: (1) to
the parties which have guaranteed seats; and (2) to the other parties
which may not have guaranteed seats but get additional seats because
of the three-seat limitation.
Now, just like before, the parties would be listed from the party with the
most number of votes to the party with the least number of votes. And
they will be listed in that order. For those who have garnered this 2% of
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the total number of votes cast, they will be given one guaranteed seat
each. Now, to determine who are entitled to the so-called additional
seats, the formula is: the votes garnered are multiplied by the remaining
seats. So, your percentage will be multiplied by the remaining number of
seats. For example, the remaining seats are 25. So, if you percentage is,
say, 7.35 x 25, that would be the number of seats you are allotted. Now,
after these additional seats are allocated to those who have guaranteed
seats, subject to the three-seat limitation lets assume, the first three
parties will get two additional seats each. So 25 minus 6, that would be
19. And the next, say three parties will get one additional seats each
based on the formula, there would be 16 more remaining. Now, these 16
remaining will be distributed to the other parties below those with the
guaranteed seats until all 16 will be distributed as it goes down the line.
So, SC said that what the Constitution requires as 2% is not a guarantee
to have a seat, its a guarantee to have ONE seat but the remainder will
have to be filled up based on proportional representation. So, even if a
party did not get a guaranteed seat, it does not mean that that party
cannot anymore get any of the seats. So, give the guaranteed seats, get
the percentage, get the additional seats based on the remaining and if
there are no more parties with guaranteed seats entitled to additional
seat, distribute the remainder of the seats to rest of the parties as they
appear in the listing from top to bottom.
BANAT v. Comelec and companion cases
G.R. No. 179271
In determining the allocation of seats for party-list representatives under Section
11 of R.A. No. 7941, the following procedure shall be observed:
1. The parties, organizations, and coalitions shall be ranked from the highest to
the lowest based on the number of votes they garnered during the elections.
2. The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one guaranteed
seat each.
3Those garnering sufficient number of votes, according to the ranking in
paragraph 1, shall be entitled to additional seats in proportion to their total
number of votes until all the additional seats are allocated.
4. Each party, organization, or coalition shall be entitled to not more than three (3)
seats.
In computing the additional seats, the guaranteed seats shall no longer be
included because they have already been allocated, at one seat each, to every
two-percenter. Thus, the remaining available seats for allocation as additional
seats are the maximum seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in the absence of a provision
in R.A. No. 7941 allowing for a rounding off of fractional seats.
In declaring the two percent threshold unconstitutional, we do not limit our
allocation of additional seats to the two-percenters. The percentage of votes
garnered by each party-list candidate is arrived at by dividing the number of votes
garnered by each party by 15,950,900, the total number of votes cast for party-list
candidates. There are two steps in the second round of seat allocation.
First, the percentage is multiplied by the remaining available seats, 38, which is
the difference between the 55 maximum seats reserved under the Party-List
System and the 17 guaranteed seats of the two-percenters. The whole integer of
the product of the percentage and of the remaining available seats corresponds
to a partys share in the remaining available seats.
Second, we assign one party-list seat to each of the parties next in rank until all
available seats are completely distributed. We distributed all of the remaining 38
seats in the second round of seat allocation.
Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled.
BANAT vs. COMELEC
G.R. 179271 July 8, 2009
To summarize, there are four parameters in a Philippine-style party-list election
system:
1. Twenty percent of the total number of the membership of the House of
Representatives is the maximum number of seats available to party-list
organizations, such that there is automatically one party-list seat for every four
existing legislative districts.
2. Garnering two percent of the total votes cast in the party-list elections
guarantees a party-list organization one seat. The guaranteed seats shall be
distributed in a first round of seat allocation to parties receiving at least two
percent of the total party-list votes.
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
3. The additional seats, that is, the remaining seats after allocation of the
guaranteed seats, shall be distributed to the party-list organizations including
those that received less than two percent of the total votes. The continued
operation of the two percent threshold as it applies to the allocation of the
additional seats is now unconstitutional because this threshold mathematically
and physically prevents the filling up of the available party-list seats. The
additional seats shall be distributed to the parties in a second round of seat
allocation according to the two-step procedure laid down in the Decision of 21
April 2009 as clarified in this Resolution.
4. The three-seat cap is constitutional. The three-seat cap is intended by the
Legislature to prevent any party from dominating the party-list system. There is no
violation of the Constitution because the 1987 Constitution does not require
absolute proportionality for the party-list system. The well-settled rule is that
courts will not question the wisdom of the Legislature as long as it is not violative
of the Constitution.
These four parameters allow the mathematical and practical fulfillment of the
Constitutional provision that party-list representatives shall comprise twenty
percent of the members of the House of Representatives. At the same time, these
four parameters uphold as much as possible the Party-List Act, striking down only
that provision of the Party-List Act that could not be reconciled anymore with the
1987 Constitution.
So, those are the rules on how the seats are allocated. Now, some
cases on the party list. This case of Abayhon vs. HRET. This would just
reiterate the legal requirement on the eligibility and qualifications of the
party list and its nominees.
And, on the issues which has jurisdiction on these two matters: if
theres an issue on the eligibility or qualification of a party registered
jurisdiction on that issue lies with the Comelec. But if the issue is on the
eligibility/qualification of the nominee of a party which won a seat, the
question is with the HRET, not with the Comelec.
We all know that issues on members of Congress, before being elected,
may be raised with the Comelec. But once they have been elected and
assumed office, then the jurisdiction finally is not with the Comelec, but
with the HRET. That was the ruling in the old case of Romualdez vs.
Comelec.
IMELDA ROMUALDEZ-MARCOS vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO
G.R. No. 119976 September 18, 1995
Petitioner alleges that the jurisdiction of the COMELEC had already lapsed
considering that the assailed resolutions were rendered on April 24, 1995,
fourteen (14) days before the election in violation of Section 78 of the Omnibus
Election Code. Moreover, petitioner contends that it is the House of
Representatives Electoral Tribunal and not the COMELEC which has jurisdiction
over the election of members of the House of Representatives in accordance with
Article VI Sec. 17 of the Constitution. This is untenable.
With the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of
B.P. 881, it is evident that the respondent Commission does not lose jurisdiction
to hear and decide a pending disqualification case under Section 78 of B.P. 881
even after the elections.
As to the House of Representatives Electoral Tribunal's supposed assumption of
jurisdiction over the issue of petitioner's qualifications after the May 8, 1995
elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests
relating to the elections, returns and qualifications of members of Congress
begins only after a candidate has become a member of the House of
Representatives. Petitioner not being a member of the House of Representatives,
it is obvious that the HRET at this point has no jurisdiction over the question.
Then this case of Philippine Guardians vs. Comelec on delisting of
parties in the party list system of election. Section 6 states that if a party
fails to participate in the last 2 preceding elections OR fails to attain at
least two percent in the two preceding elections, that party may be
delisted. Phil Guardians participated in 2001, did not participate in 2004,
in 2007 is it eligible to join? SC said YES because delisting under the
law uses the conjunctive word OR. So it must either be two years that
you have not joined or two years that you have not garnered at least two
percent. In the case of Phil Guardians, it participated but did not garner
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enough votes. In 2004, it did not join at all. So, its one of both, not two of
either. So, its still eligible in 2007.
PGBI vs. Comelec
G.R. No. 190529 29 April 2010
First, the law is clear the COMELEC may motu proprio or upon verified
complaint of any interested party, remove or cancel, after due notice and hearing,
the registration of any national, regional or sectoral party, organization or coalition
if it: (a) fails to participate in the last two (2) preceding elections; or (b) fails to
obtain at least two per centum (2%) of the votes cast under the party-list system
in the two (2) preceding elections for the constituency in which it has registered.
The word or is a disjunctive term signifying disassociation and independence of
one thing from the other things enumerated; it should, as a rule, be construed in
the sense in which it ordinarily implies, as a disjunctive word. Thus, the plain,
clear and unmistakable language of the law provides for two (2) separate reasons
for delisting.
What we say here should of course take into account our ruling in Banat v.
Comelec where we partly invalidated the 2% party-list vote requirement provided
in RA 7941. The disqualification for failure to get 2% party-list votes in two (2)
preceding elections should therefore be understood in light of theBanat ruling that
party-list groups or organizations garnering less than 2% of the party-list votes
may yet qualify for a seat in the allocation of additional seats.
We need not extensively discuss Banats significance, except to state that a
party-list group or organization which qualified in the second round of seat
allocation cannot now validly be delisted for the reason alone that it garnered less
than 2% in the last two elections. In other words, the application of this
disqualification should henceforth be contingent on the percentage of party-list
votes garnered by the last party-list organization that qualified for a seat in the
House of Representatives, a percentage that is less than the 2% threshold
invalidated in Banat. The disqualification should now necessarily be read to apply
to party-list groups or organizations that did not qualify for a seat in the two
preceding elections for the constituency in which it registered.
To reiterate, (a) Section 6(8) of RA 7941 provides for two separate grounds for
delisting; these grounds cannot be mixed or combined to support delisting; and
(b) the disqualification for failure to garner 2% party-list votes in two preceding
elections should now be understood, in light of the Banat ruling, to mean failure to
qualify for a party-list seat in two preceding elections for the constituency in which
it has registered. This, we declare, is how Section 6(8) of RA 7941 should be
understood and applied.
Then, this case of Lokin, Jr. vs. Comelec.
The nominee of the party was changed, and then he was
unceremoniously dismissed/changed as party nominee. Now, he wants
to be the one to sit in Congress. What case should he file? Should it be
an election protest or quo warranto? The SC said that it should be filed
with the Comelec because this is an issue about a person wanting to be
in the list. Since he was removed from the list and wants to be
reinstated, that is not an issue before the Electoral Tribunal. Nor is it an
election protest nor quo warranto. He must proceed with the Comelecs
authority to oversee the implementation of the law. Thus, Comelec will
have to rule on the issue. The Comelecs ruling will be subject to review
under Rule 64.
Lokin vs. Comelec
G.R. Nos. 179431-32
The controversy involving Lokin is neither an election protest nor an action
for quo warranto, for it concerns a very peculiar situation in which Lokin is seeking
to be seated as the second nominee of CIBAC. Although an election protest may
properly be available to one party-list organization seeking to unseat another
party-list organization to determine which between the defeated and the winning
party-list organizations actually obtained the majority of the legal votes, Lokins
case is not one in which a nominee of a particular party-list organization thereby
wants to unseat another nominee of the same party-list organization. Neither
does an action for quo warranto lie, considering that the case does not involve the
ineligibility and disloyalty of Cruz-Gonzales to the Republic of the Philippines, or
some other cause of disqualification for her.
Lokin has correctly brought this special civil action for certiorari against the
COMELEC to seek the review of the September 14, 2007 resolution of the
COMELEC in accordance with Section 7 of Article IX-A of the 1987 Constitution,
notwithstanding the oath and assumption of office by Cruz-Gonzales. The
constitutional mandate is now implemented by Rule 64 of the 1997 Rules of Civil
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THE MONTEJO LECTURES 2012-2013

Procedure, which provides for the review of the judgments, final orders or
resolutions of the COMELEC and the Commission on Audit. As Rule 64 states,
the mode of review is by a petition for certiorari in accordance with Rule 65 to be
filed in the Supreme Court within a limited period of 30 days. Undoubtedly, the
Court has original and exclusive jurisdiction over Lokins petitions forcertiorari and
for mandamus against the COMELEC.

Let us continue tomorrow.

[Evangelista, Paolo]

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 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
July 4, 2012
ELECTION
The election of members of Congress is based on the laws on
synchronization (which shall be held every three years). After the 1992
elections, there shall be twelve senators who will be elected every three
years.
The case of Tolentino vs. COMELEC is on the notice requirement for
special elections when there is a vacancy in the Senate or in the House
of Representatives. The laws of today would allow special election if the
vacancy is more than a year from the next regular election. When Gringo
Honasan was elected in the 2004 special elections, the question then
was whether or not there must have to be a special notice (or notice to
the public) when there is an additional seat to be filled up (in this case,
the thirteenth spot) because of a vacancy.
The Supreme Court made a distinction that if a special election is held
not during a general election, there must have to be a notice to the
voting public. But if it were to be a special elections to be held during a
general election, like to fill up a thirteenth slot in the Senate by reason of
the vacancy, there need not be a special notice to that effect because
the laws on synchronization of elections are sufficient notification that
there shall be an election every three years.
ARTURO M. TOLENTINO and ARTURO C. MOJICA vs.
COMMISSION ON ELECTIONS
G.R. No. 148334 January 21, 2004
Shortly after her succession to the Presidency in January 2001, PGMA nominated
then Sen. Guingona as Vice-President. Following Sen. Guingonas confirmation
by Congress, the Senate passed Resolution No. 84 certifying to the existence of
a vacancy in the Senate. Resolution No. 84 called on COMELEC to fill the
vacancy through a special election to be held simultaneously with the regular
elections on 14 May 2001. It further provided that the Senatorial candidate
garnering the 13th highest number of votes shall serve only for the unexpired term
of former Sen. Guingona, Jr., which ends on 30 June 2004.
On 5 June 2001, after COMELEC had canvassed the election results from all the
provinces but one (Lanao del Norte), COMELEC issued Resolution No. 01-005
provisionally proclaiming 13 candidates as the elected Senators. Resolution No.
01-005 also provided that the first twelve (12) Senators shall serve for a term of
six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of
three (3) years of Sen. Guingona, Jr. who was appointed Vice-President.
Petitioners contend that COMELEC issued Resolution No. 01-005 without
jurisdiction because: (1) it failed to notify the electorate of the position to be filled
in the special election as required under Section 2 of Republic Act No. 6645.
Held: The calling of an election, that is, the giving notice of the time and place of
its occurrence, whether made by the legislature directly or by the body with the
duty to give such call, is indispensable to the elections validity. In a general
election, where the law fixes the date of the election, the election is valid without
any call by the body charged to administer the election.
In a special election to fill a vacancy, the rule is that a statute that expressly
provides that an election to fill a vacancy shall be held at the next general
elections fixes the date at which the special election is to be held and operates as
the call for that election. Consequently, an election held at the time thus
prescribed is not invalidated by the fact that the body charged by law with the
duty of calling the election failed to do so. This is because the right and duty to
hold the election emanate from the statute and not from any call for the election
by some authority and the law thus charges voters with knowledge of the time
and place of the election.
Conversely, where the law does not fix the time and place for holding a special
election but empowers some authority to fix the time and place after the
happening of a condition precedent, the statutory provision on the giving of notice
is considered mandatory, and failure to do so will render the election a nullity.
In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of
vacancy in the Senate, the special election to fill such vacancy shall be held
simultaneously with the next succeeding regular election. Accordingly, the
special election to fill the vacancy in the Senate arising from Senator Guingonas
appointment as Vice-President in February 2001 could not be held at any other
time but must be held simultaneously with the next succeeding regular elections
on 14 May 2001. The law charges the voters with knowledge of this statutory
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notice and COMELECs failure to give the additional notice did not negate the
calling of such special election, much less invalidate it.
What is just required is that the public is made aware that they should
vote for thirteen senators instead of the regular twelve because there is
a need to fill up the vacancy. This is probably one of the reasons why
Chairman Brillantes of the COMELECas you may have read in the
papershas already asked Senator Santiago whether she would vacate
her seat in the Senate before the ballots are finalized for next years
elections. The last day for filing is sometime in October and there must
be a final list of qualified candidates so that if there shall be 13 to be
elected to fill up the vacancy by reason of Senator Santiagos departure
for the International Criminal Court, then the announcement now has to
be made so that the public will know and be duly informed that there is a
need to add another more to the regular seats of Senate.
SALARIES, PRIVILEGES, and DISQUALIFICATIONS
With respect to the salaries not much have changed. Their [members of
Congress] salaries cannot be increased during their tenure or term. The
word term there is singularly used i.e. that all members of Congress
when the law, passed and approved increasing their salaries, cannot
take effect until after the full term of all the members of Congress
approving it.
Seemingly there may be no problem with respect to that but because of
the overlap of the Senate by reason of synchronization (that only twelve
senators terms will end at one time while the rest of the twelve will have
another 3 years and there shall be new twelve senators coming for a full
six year term). One must have to determine whether or not the terms of
the members of Senate who approved the bill increasing the salary have
already expired in order to determine when the law shall take effect.
Apparently, the prohibition is for these members to take benefit of their
own acts approving a bill increasing their salary.
There is no prohibition on a law (passed and approved) that would
benefit the next Congress. Thus, the prohibition is not on the passage
but rather on the increased salaries benefitting the members approving
them.
FREEDOM FROM ARREST
The other privileges would be freedom from arrest and the speech
and debate clause. Freedom from arrest would only cover crimes or
felonies where the penalties are not more than six years of imprisonment
until after the member of congress is supposed to have been convicted.
If the conviction is not yet final, there seems to be no disqualification yet
for a member of Congress to attend session or eventually be re-elected
for the position. For offenses however where the penalty is more than six
years of imprisonment, they would only have limited freedom or privilege
from such arrest.
SPEECH AND DEBATE CLAUSE
The Speech and Debate clause would refer to the utterances of a
member who is on official duty when Congress is in session and when
he is supposed to perform legislative functions. It does not cover any
other kind of speeches other than those made in Congress or in any
committee thereof.
The rationale for both privileges is to insure continued democratic
representation and for these members of congress to properly discharge
the functions of their office.
Now, with respect to the speech and debate clause, there is a limitation
however that while members may not be held liable in any other place
for such speech and debate, they can be held liable by Congress. This
will be covered by the authority of the House to punish its members who
could be considered as [acting with] disorderly behavior where the
extreme penalty of expulsion is possible, provided the required vote is
met and satisfied. Suspension is also an allowable penalty.
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PROHIBITIONS/ INHIBITIONS humanitarian work is unparalleled. The Court should not shake its existence to
the core in an untimely and drastic manner that would not only have negative
Now the prohibitions. They [members] shall not appear as counsels. consequences to those who depend on it in times of disaster and armed
hostilities but also have adverse effects on the image of the Philippines in the
They are not prohibited from practicing their profession even if they are
international community. The sections of the PNRC Charter that were
lawyers though they are not allowed to make personal appearances declared void must therefore stay.
before any court or tribunal including the electoral tribunal. The apparent
reason for this is that they might wield power thereby giving them undue
advantage over the other.
DUTY TO DISCLOSE
They shall not have any financial interest nor intervene for pecuniary
Now the other duties of the members of the Congress are:
interest in any contract with the government or GOCCs. The
1. Duty to disclose all business and financial interests,
disqualification or prohibition here would have to relate only to the
2. Duty to disclose conflicts in the bills they are authoring,
pecuniary interest. If there is no financial or pecuniary interest that will
and the
benefit the member of the Congress, seemingly, there is no prohibition
3. Duty to disclose the assets, liabilities, and net worth,
unless it falls under the other kind of prohibition i.e. that they shall not be
that has taken special significance in the case of Chief
allowed to do an act which will require them to use their particular office
Justice Corona. Non-disclosure of your assets, liabilities, and
or the privilege of their office.
net worth truthfully in your Statement is now an impeachable
offense. And since it has not been raised in the Supreme
DISQUALIFICATIONS
Court, we would have to believe it as of today that if you are
an impeachable officer, and you failed to fully disclose
There are two:
everything in your SALN, that would constitute as an
1. incompatible office and
impeachable offense.
2. forbidden office.
What is the ordinary penalty for not truthfully stating everything in your
An incompatible office is an office which the member of Congress
SALN, it being a statement made under oath? Perjury. Perjury which
cannot take without forfeiting his or her seat. Apparently, this would refer
carries with it the penalty of.but now it is an impeachable offense.
to any other office in the government or GOCC to avoid trafficking in
office. One may be allowed to take that office but he or she must have to
INTERNAL GOVERNMENT OF CONGRESS
forfeit his or her seat in office.
The Internal Government of Congress the election of officers theres
This case of Liban vs. Gordon (MR) refers to former Sen. Gordon who
nothing much there. It is just part of the power of the Congress to elect
while seated as a senator was also appointed as the chairperson of the
its officers.
Philippine National Red Cross. Petitioner Liban contends that it is
considered as an incompatible.
The old case of Santiago vs. Guingona simply defines certain terms
with respect to election. In our electoral system of localizing elections,
In the original decision, the Supreme Court said that the PNRC is not a
the party or person who or which gets the highest votes will be
government office nor is it a GOCC. It further said that the charter of
considered to have won and therefore, the term majority in that context
PNRC is void and unconstitutional requiring PNRC to file its articles of
would mean the most number of votes. Ordinarily, majority is understood
incorporation to SEC to have corporate personality and powers.
to be more than half of the number when the others would think of it as
50% plus 1. But that I think is a very old understanding of the word
The second decision is a resolution of several motions filed for
majority i.e. to be more than half.
clarification, among others, of what is meant by the decision where it
said that the PNRCs Charter is void. In the Resolution, the Supreme
In another context like in the old composition of the Electoral Tribunal,
Court said that the PNRCs Charters constitutionality has not been
for example, the composition was three belonging to the majority party
raised as an issue in the case. So under Judicial Review, a question of
and three belonging to the minority parties, So all the minority parties
Constitutionality shall not be resolved by the court if it is not raised
have to be represented for the purpose of simple elections. He who
properly. And importantly, the Supreme Court said that PNRC is sui
garners the most number of votes is considered to have gotten the
generis. It is an entity, a voluntary organization which is impressed with
majority votes. So, those are the discussions in the case of Santiago vs.
public interest. It then went on to discuss the history of the PNRC, all the
Guingona.
way to the Committee of the Red Cross. It is sui generis, a class of its
own, and therefore, cannot be declared to be as unconstitutional based
SANTIAGO vs. GUINGONA
on its charter.
The term majority has been judicially defined a number of times. When referring
LIBAN vs. GORDON (MR) to a certain number out of a total or aggregate, it simply means the number
639 SCRA 703 (2011) greater than half or more than half of any total. The plain and unambiguous
words of the subject constitutional clause simply mean that the Senate President
Although it is neither a subdivision, agency, or instrumentality of the government, must obtain the votes of more than one half of all the senators. Not by any
nor a government-owned or -controlled corporation or a subsidiary thereof, as construal does it thereby delineate who comprise the majority, much less the
succinctly explained in the Decision of July 15, 2009, so much so that minority, in the said body. And there is no showing that the framers of our
respondent, under the Decision, was correctly allowed to hold his position as Constitution had in mind other than the usual meanings of these terms.
Chairman thereof concurrently while he served as a Senator, such a conclusion
does not ipso facto imply that the PNRC is a private corporation within the In effect, while the Constitution mandates that the President of the Senate must
contemplation of the provision of the Constitution, that must be organized under be elected by a number constituting more than one half of all the members
the Corporation Code. As correctly mentioned by Justice Roberto A. Abad, thereof, it does not provide that the members who will not vote for him shall ipso
the sui generis character of PNRC requires us to approach controversies facto constitute the minority, who could thereby elect the minority leader.
involving the PNRC on a case-to-case basis. Verily, no law or regulation states that the defeated candidate shall automatically
become the minority leader.
In sum, the PNRC enjoys a special status as an important ally and auxiliary of the
government in the humanitarian field in accordance with its commitments under Let us go back to the definitions of the terms majority and minority. Majority
international law. This Court cannot all of a sudden refuse to recognize its may also refer to the group, party, or faction with the larger number of votes, not
existence, especially since the issue of the constitutionality of the PNRC Charter necessarily more than one half. This is sometimes referred to as plurality. In
was never raised by the parties. It bears emphasizing that the PNRC has contrast, minority is a group, party, or faction with a smaller number of votes or
responded to almost all national disasters since 1947, and is widely known to adherents than the majority. Between two unequal parts or numbers comprising
provide a substantial portion of the countrys blood requirements. Its a whole or totality, the greater number would obviously be the majority, while the

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 CONSTITUTIONAL LAW REVIEW:
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lesser would be the minority. But where there are more than two unequal
groupings, it is not as easy to say which is the minority entitled to select the
leader representing all the minorities. In a government with a multi-party
system such as in the Philippines (as pointed out by petitioners themselves),
there could be several minority parties, one of which has to be identified by the
Comelec as the dominant minority party for purposes of the general elections.
In the prevailing composition of the present Senate, members either belong to
different political parties or are independent. No constitutional or statutory
provision prescribe which of the many minority groups or the independents or a
combination thereof has the right to select the minority leader.
While the Constitution is explicit on the manner of electing a Senate President
and a House Speaker, it is, however, dead silent on the manner of selecting the
other officers in both chambers of Congress. All that the Charter says is that
[e]ach House shall choose such other officers as it may deem necessary. To our
mind, the method of choosing who will be such other officers is merely a
derivative of the exercise of the prerogative conferred by the aforequoted
constitutional provision (Section 16 (1), Article VI). Therefore, such method
must be prescribed by the Senate itself, not by this Court.
QUORUM and VOTING MAJORITIES
This old case of Avelino vs. Cuenco is still a good decision. This refers
to the basis in determining quorum in the House. What if there are
members who are absent?
If there are members absent, in the case of Avelino vs. Cuenco, it has to
determine whether or not the absent member is within the authority of
that House to compel his attendance under pain of penalty. If he is within
the jurisdiction or authority of that House, the number of that absent
member has to be considered for the purpose of determining quorum.
Otherwise, it will not be. So in this case, one member is out of the
country. That member will not be considered whereas that member
outside of the Senate but was confined in a Philippine hospital at that
time is to be considered because he is still under the jurisdiction of the
Senate to compel his attendance.
So a quorum is required for members of the House to do business. Can
a number smaller than a quorum be able to perform acts with legal
effects? The answer is YES.
Under the Constitution, they can actually adjourn from day-to-day and
they can also compel the attendance of absent members based on the
Rules of the House concerned. Even if there are only a few of them, they
can actually cite and penalize absent members in violation thereof, and,
in accordance with the rules, compel the attendance of absent members.
Now what about the others with respect to the voting majority and their
relation to quorum? Based on the different provisions of the Constitution:
The election of officers only requires a majority vote;
To suspend or expel a member, a qualified two-thirds
majority is required;
To discipline members with less than suspension or
expulsion, a simple majority is required;
To declare the existence of a state of war, Congress must
achieve a qualified two-thirds vote in joint session
separately voting;
When they will have to decide in the exercise of the
emergency powers of the President, a simple majority is
required;
If Congress will have to choose the President in case of a
tie (Congress acting as the Presidential Board of
Canvassers), a simple majority shall be had in joint
sessions but separate voting;
If Congress shall decide the Presidents disability (meaning
temporary physical incapacity to discharge the functions of
his office) which is contested by the President and the
members of his cabinet, a qualified two-thirds vote shall
have to be achieved;
To confirm the choice of a Senator or member of the
Congress to become the Vice-President, a majority vote
is required;
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When they shall receive in their after-vote on the exercise of
the President of his commander-in-chief powers, a simple
majority, in joint session and joint-voting is required;
If Congress has to confirm the Presidents amnesty
powers, a simple majority vote is required;
And in treaty concurrence, through the House of Senate, a
qualified two-thirds vote shall be required.
What are the other instances where Congress shall vote?
If Congress decides to amend the constitution by
constituting itself as a constituent body, what is the qualified
vote required? 3/4.
If Congress will declare a constitutional convention by itself?
2/3.
If Congress shall ask the public whether or not a
constitutional convention should be called, a simple majority
vote shall be required.
Now even if Section 16(3) is not there [Each House may determine the
rules of its proceedings, punish its Members for disorderly behavior, and,
with the concurrence of two-thirds of all its Members, suspend or expel a
Member. A penalty of suspension, when imposed, shall not exceed sixty
days], the principle is that Congress, and any of its committees, shall
have the power to promulgate its own rules of proceedings. The reason
why that section is there is because of the requirement of limitation of
these rules since they affect members or persons who are not members
of the Congress. They [rules] must have to be published. Otherwise,
they shall not take effect and will not affect the rights of persons who are
not members of the Congress.
Discipline of Members
As mentioned earlier if a member of Congress is found to have
committed an act which constitutes disorderly behavioras defined by
Congress based on its ruleshe can be disciplined by his own peers.
The penalties can range from a simple reprimand to the penalty of
expulsion. Suspension shall not be more than how many days? Those
number of days. [Editors note: SECTION 16. (3) xxx A penalty of
suspension, when imposed, shall not exceed 60 days.]
The reason for that is in expulsionwhile there may have an effect on
continued democratic representation because the constituents will no
longer have a representative in Congress in the meantime, that will only
be momentary. Since a vacancy is created by means of expulsion, the
member or the constituents may ask for a special election. If it were to
be a suspension, the position can never be filled up.
Now does the authority of the Supreme Court under its judicial review
powers cover the power of Congress to discipline its members? If it were
to be based on the grounds as Congress would determine, judicial
review can hardly be exercised because it is for Congress to determine
what constitutes disorderly behavior.
The Constitution did not provide what these acts [constituting disorderly
behavior] are but with respect to the voting requirement and perhaps the
procedure, then that may be subjected to the review powers of the
courts. Other than that, it is beyond the courts to review what Congress
has done to discipline or its failure to discipline its members.
Journal and Congressional Records
The question here has always been on the interpretation of the law.
Which should prevail: what appears in the bill as enrolled or what
appears in the journal as discussed?
You have come across a lot of cases in which the Supreme Court has
tried to go to the Congressional Records to determine the meaning of a
 CONSTITUTIONAL LAW REVIEW:
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provision, to determine the intent of Congress when it enacted a law with
respect to a particular provision, words or phrases as may be found
therein.
So if there is an issue asked on that, how should the court construe it?
Should it be based on what appears in the law, meaning the bill as
enrolled, or what appears and deliberated upon by the Congress on the
journal?
What are included in the journal anyway? In your outline there is a listing
there:
1. Yeas and nays on third and final reading of a bill
2. Veto message of the President
3. Yeas and nays on the repassing of a bill vetoed by the
President
4. Yeas and nays on any question at the request of 1/5 of
members present
5. Summary proceedings
Those are the matters which would have to be, constitutionally, entered
in the journal. So, if the question relates to any of these matters, the
journal should prevail. So, was there a quorum? Did the yeas vote win
over the no votes for the passage of the bill? Or what was the reason of
the president in not approving and in giving his veto on a particular bill?
So, those matters must have to be answered by what appears and are
recorded in the journal.
But when the issue is on what the law is, it should be the enrolled bill
which should be consulted and should prevail.
No matter what the journal entries provide in the summary, the ultimate
test is the final version of the bill, as certified, enrolled and which
eventually became a law. If there was something lost, however, in the
translation so to speak, in what Congress had approved and in what the
president had signed, the enrolled bill should still prevail.
In one old case, what the Supreme Court suggested is that Congress
must pass another bill which would amend and make the correction
because the court can only interpret what appears in the bill (law).
I think that was the case of Casco Chemical vs. Gimenez (7 SCRA 347).
The bill, as approved, has allowed exemption for foreign currency
transactions. When they went to the records of the deliberations, what
the intent of Congress was to exempt foreign exchange transaction if the
foreign currency bought will be used to buy and import raw materials
such as urea and formaldehyde. But when the bill was printed in its final
form for voting (under our Constitution, printed copies must have to be
distributed at least 3 days before the third and final reading), what was
contained therein was the item urea formaldehyde, meaning the finished
product and not the raw materials. So, the Supreme Court cannot do
anything but say that this is what is covered as an exempted transaction
and not the importation of raw materials. What the Congress can do is to
amend the law by passing another law.
CASCO PHILIPPINE CHEMICAL CO., INC. vs. HON. PEDRO GIMENEZ
Petitioner contends, however, that the bill approved in Congress contained the
copulative conjunction "and" between the terms "urea" and "formaldehyde", and
that the members of Congress intended to exempt "urea" and "formaldehyde"
separately as essential elements in the manufacture of the synthetic resin glue
called "urea" formaldehyde", not the latter as a finished product, citing in support
of this view the statements made on the floor of the Senate, during the
consideration of the bill before said House, by members thereof. But, said
individual statements do not necessarily reflect the view of the Senate. Much less
do they indicate the intent of the House of Representatives. Furthermore, it is well
settled that the enrolled bill which uses the term "urea formaldehyde" instead
of "urea and formaldehyde" is conclusive upon the courts as regards the tenor
of the measure passed by Congress and approved by the President. If there has
been any mistake in the printing of the bill before it was certified by the
officers of Congress and approved by the Executive on which we cannot
speculate, without jeopardizing the principle of separation of powers and
undermining one of the cornerstones of our democratic system the
remedy is by amendment or curative legislation, not by judicial decree.
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PROBATIVE VALUE OF THE JOURNAL
The journal as mentioned would be binding upon the courts on all
matters which are entered therein based on the official recordings. The
Supreme Court cannot go beyond on what appears on the journal even
if in reality there were other events which occurred differently from what
appears from the journal.
Several things for several reasons:
a. Separation of powers: The Supreme Court cannot
inquire into the veracity of what appears in the journal, it
being an official recording of a co-equal branch of a
government;
b. Based on the rules of evidence, the probative value of a
document must have to weigh greater than testimonial
evidence. So if there is written evidence that this was
what transpired in the proceedings, any oral testimony
to change the tenor of what appears in the record or
journal must not be given weight or even admitted to
change the tenor thereof. It is violative of your parole
evidence rule.
SESSIONS
There is not much there. We have taken up voting. What is important
with sessions is when Congress should vote separately and when they
should vote jointly.
The intent of the Constitution is for both houses to vote separately
because legislative power is shared and exercised by two houses. They,
by themselves, would have to check each other. In fact, if you go
through the passage of bills, we all know that one bill is processed in
one house and then another version is processed in the other house.
And if these two versions are finally harmonized and/or consolidated,
then those bills will be enrolled and will be the basis to become a law
thereafter.
So if one does not agree with the other, then they are in effect checking
in each other. So even if the Constitution requires them to be in joint
session and the Constitutional provision is silent as to how they should
vote either jointly or separately, the common understanding is that, they
should vote separately. Because in the exercise of the president of his
Commander-in-chief powers, the provisions under Section 18 Article 17
expressly provides that the voting shall be joint. And thats the only time,
the only provision in the Constitution that states expressly that voting
shall be joint. That is justified because of the experience in the past
when members of Congress could no longer be found either because
they are hiding or they are being kept detained. So majority or quorum is
not met.
So for Congress to be able to meet, vote, or revoke the declaration of
the President of martial law or suspension of the writ of habeas corpus,
the Constitutional Commission of 1986 framed it in such a way that
Congress shall be in joint session and voting shall also be joint.
But the first question to ask is: what about quorum? In that situation, how
is quorum determined? Should members of Congress members of the
House of Senate be commingled in number with the number of the
House of Representatives to determine the quorum?
There must have to be a quorum in each house to begin with. Although
they are in joint session, there must have to be quorum in each house.
This is based on the fact that the rationale why they should not vote
jointly unless the Constitution says so is because of the tyranny of the
numbers so to speak. There are only 24 Senators vis--vis 250+
members of the lower house and by sheer number, the members of
Senate will always be outvoted. By representation, the members of the
lower house represent only a district or a party because they represent a
marginalized and underrepresented sector. While the members of the
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House of Senate, supposedly represent the entire country because they Not what his party has directed him to do because his loyalty to his party
are voted at large and must by all the electorate and not by district. ends when his task as a judge sitting in the Electoral Tribunal begins.

So it is quite unfair if the votes of the Senators would have to be
commingled with the House of Representative unless again as required
under section 18 because of the urgency of the matter and based on the
experiences of the past that there may no longer be a quorum that is
met. That is why the voting shall be joint. Only in that situation.
ELECTORAL TRIBUNAL
The composition of Electoral Tribunal with respect to the so called
legislative component, there being two components there: the judicial
component and the legislative component, shall be filled up on the basis
of proportional representation based on actual number of members of a
party in that particular house.
But for any other kind of party disloyalty like failure to attend 5
consecutive meetings, failure to pay your annual dues which are
grounds for expulsion in a partythose are valid grounds. And if you are
removed from the party, obviously you can no longer sit in the Electoral
Tribunal. Those party disloyalty grounds would still be valid as a basis
for removing you eventually from the Electoral Tribunal.
Judicial Review of Decisions of Electoral Tribunal
The emphasis is that if there is grave abuse of discretion amounting to
lack or excess of jurisdiction, decisions of the Electoral Tribunal can be
reviewed by the Supreme Court. But again, there must have to be a
clear case of grave abuse of discretion. Lets continue next meeting.

It is not based on momentary coalitions or coalitions for convenience but [Kintanar, Lovely/ Diniay, Donni]
based on party membership. So if you belong to this party, then even if
you have voted for another person belonging to a party in any other
case, including the election of officers, or even if by concession you
have been given a seat in the important committees as chairperson by
accommodation, that should not make you a member of that party.

You may have read in the papers that the composition of the JBC now
has been questioned because the Constitution says a representative of
Congress. Because of that mistake since the Constitution was had,
theres always been one Senator and one Member of the lower house
sitting in the JBC each of them having half a vote. During the time of
Chief Justice Puno, that has been changed. Each would have 1 vote
each. So from 7 members of the JBC, now they have 8. Thats why its
much more difficult to get a majority now because you have to pay,
sorry, you have to talk, to sell yourself to 5 individuals. Before, in a
seven-member body you have to sell yourself to 4 but since the [number
of] voting was changed during CJ Punos time, then you have to sell
yourself to 5. Much more difficult. Okay.

The Electoral Tribunal, in relation to the CA. When the Constitution says
proportional representation, I do not know if you know that there is a
party list representative sitting in the CA now. How could a party list
representative sit on the Commission of Appointments? Again this is by
political accommodation but if you are strictly to follow the rule on
proportional representation, its your number of members in the house
divided by the total number of members in the house. The result will be
your proportion. So how many seats would a party have under the Party
List system? Three (3). In a house now with 280 members, will the three
get a seat? But you know these are by accommodations. That is not by
the Constitution on proportional representation.

The functions of the Electoral Tribunal. It exercises strictly quasi-judicial

power. While the Constitution says it is the sole judge of all contests
relating to the elections, qualifications, and returns of its members, it is
still exercising quasi-judicial functions.

The sole judge as a term has been used to emphasize that there is no
other body, entity or court which will exercise jurisdiction over these
casesonly the Electoral Tribunal.

The term sole judge is also used to define the independence of the
Electoral Tribunal. Being the sole judge, its members are considered
judges in that respect, meaning, they could not be removed unless for
cause (just like judges they enjoy security of tenure at the very least).
They could be removed for valid and just causes only. And while party
disloyalty may be a ground for removing a member from a party, thereby
allowing his removal also in the Electoral Tribunal, party disloyalty must
be other than defying the wishes of a party with respect to a case
pending before an electoral tribunal.

To put it differently, a member of the Electoral Tribunal is not supposed

to be dependent or beholden to the party which has nominated him to sit
in the Electoral Tribunal. His decisions are supposed to be based on the
evidence, the facts and the applicable law with respect to election cases.
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COMMISSION ON APPOINTMENTS
Now what about the Commission on Appointments (CA for brevity)?
While the Electoral tribunal is exercising quasi-judicial [power] at the
very least, the CA is exercising what power? EXECUTIVE because it
has something to do with the power of the President to make
appointments, particularly under the first sentence of Sec. 16 of Article
VII. The CA has 24 votes, the 25th vote comes from the chair, who is the
Senate president; and 12 votes come from each house to be filled out
for purposes of proportional representation.
The function of the Commission of Appointments is largely an extension
of the appointing authority of the President who shall appoint officers
under the 1st sentence of Section 16 of Article VII. Their appointments
must have to be affirmed by the COA.
Section 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers whose appointments
are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of
the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproved by the Commission on Appointments or until the
next adjournment of the Congress.
Pimentel, Jr. v. Ermita
472 SCRA 587 (2005)
While Congress was in session and after the Commission on Appointments have
been duly constituted, the President appointed 8 individuals as Secretaries of
various departments all in acting capacities. After congress adjourned, the
President issued them ad interim appointments. Can the President issue
appointments in acting capacities, thus requiring no confirmation, while Congress
is in session?
Held: Yes. The office of a department secretary may become vacant while
Congress is in session. Since a department secretary is the alter ego of the
President, the acting appointee to the office must necessarily have the
Presidents confidence. Thus, by the very nature of the office of a department
secretary, the President must appoint in an acting capacity a person of her choice
even while Congress is in session. That person may or may not be the
permanent appointee, but practical reasons may make it expedient that the acting
appointee will also be the permanent appointee. Further, the law expressly
allows the President to make such acting appointment. Section 17, Chapter 5,
Title I, Book III of EO 292 states that [t]he President may temporarily designate
an officer already in the government service or any other competent person to
perform the functions of an office in the executive branch.
Pimentel vs. HRET. This involves the matter of the appointment of an
acting secretary. Several questions were asked. If the incumbent
secretary has resigned, is it mandatory for the President to appoint the
undersecretary to become the permanent secretary? NO. The power of
the President to appoint members of the cabinet is largely executive and
discretionary. It should be based on the discretion of the President who
to appoint and there is no rule in law that the undersecretary shall
automatically become the permanent secretary.
Is the president entitled to make an acting appointment? YES. The
appointment made by the president to be the acting secretary is allowed,
even under the Administrative Code, where the President can technically
make temporary appointments.
Is the acting appointment subject to the confirmation of the Commission
on Appointments? NO. It is just in an acting capacity. Only permanent
nominations (and appointments thereafter) made by the President for
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those belonging to the 1st sentence of Section 16 of Art. VII shall be
subject to the confirmatory power of COA.
Unless there is a showing that the President abused his discretion in
making acting appointments to avoid the confirmatory process of the
COA, such appointments made shall be considered valid.
On the president nominating an appointee whose appointment has been
bypassed by CA.
The rule has been made that for so long as the appointment made by
the President or the nomination made by the President has not been
rejected by the CA, that person can be re-appointed or re-nominated by
the President for such position. There is no limitation. This would usually
happen if the presidential appointees have been bypassed (not acted
upon by the CA). If that is the reason why the appointment has been
defective, the President can actually re-appoint or re-nominate for such
number of times until the COA confirms it. You may have read in the
papers that there is a bill filed in the HR limiting the number of times the
President can reappoint the person for a position. Perhaps the most
recent example is the appointments of De Lima, et al because their
appointments have been continually bypassed by Congress. So theres
no limitation as to the number of times. If you remember during the time
of PGMA, the late Angelo Reyes was appointed to several cabinet
positions, and for all those times, his appointment was bypassed by
Congress.
DECISIONS OF THE COMMISSION ON APPOINTMENTS
AND JUDICIAL REVIEW
Is the decision of the CA to confirm or reject subject to judicial review? It
depends on whether there is a legal or constitutional violation. We all
know that aside from the Career Officers of the AFP, naval forces, most
of the appointments made by the President (falling under Sec. 16) are
largely political appointees. There are no definite or strict qualifications
most especially for cabinet members the primary consideration is if
you are the friend of the President, because he has trust and confidence
in the person to be appointed.
There is no such thing that in order for you to be the Secretary of the
DPWH, you must have to be a civil engineer by profession. Or if you are
the Secretary of DENR, you have to be an environmentalist. You can be
an illegal logger for all we care, but if you are the Presidents friend, you
can be appointed.
There is also no qualification as to age or educational attainment.
Perhaps, the only disqualification is: if you have been convicted of a
crime which carries the penalty of special or perpetual disqualification.
But aside from that, there seems to be no hard and fast rule.
For members of the Diplomatic Community, perhaps they have. They
have to pass exams, mental and physical. If you have not qualified for
that, you may be disqualified.
So if the issue of the decision or approval of the nomination is not based
on legal grounds, then it could not be subjected to judicial reviews, even
if the person is the most notorious of all. If there is no disqualification in
law, that person can still be nominated and confirmed by the CA.
POWERS OF CONGRESS
Art. VI. Section 1. The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative and
referendum.
It grants Congress the power to exercise legislative powers, and the first
limitation there is : except to the extent reserved to the people by the
provision on initiative and referendum.
FIRST EXCEPTION TO THE POWER OF CONGRESS:
INITIATIVE AND REFERENDUM
 CONSTITUTIONAL LAW REVIEW:
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Section 32. The Congress shall, as early as possible, provide for a system of
initiative and referendum, and the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject any act or law or part thereof
passed by the Congress or local legislative body after the registration of a petition
therefor signed by at least ten per centum of the total number of registered voters,
of which every legislative district must be represented by at least three per
centum of the registered voters thereof.
In the Constitutional sense, that is a reservation or a grant, we often
refer to as delegated authority. Under Section 32 of Art. VI, Congress
must have to enact a law for the people to exercise their power of
initiative and referendum. But in a strict and political sense, that is a
reservation of power because sovereignty resides in the people and all
political power resides in them. So when the people have delegated the
legislative power to Congress to be exercised by two houses, the people
did not give all. They have made reservations under initiative and
referendum.
SECOND EXCEPTION TO THE POWER OF CONGRESS:
BOTH HOUSES MUST BE IN SESSION SIMULTANEOUSLY
ART. VI, SEC 16, (5) Neither House during the sessions of the Congress shall,
without the consent of the other, adjourn for more than three days, nor to any
other place than that in which the two Houses shall be sitting.
Now, the other limitation on Congressional authority would be under
Sec. 16 (5): that both Houses of Congress must have to be in session
simultaneously, though not jointly, and they should sit in the places
where they are actually sitting. If there is a transfer of the place where
one of the Houses of congress shall sit, it must inform the other house.
Or if the adjournment of one House is longer than 3 days, it should also
inform the other House; otherwise, there is no Congress. (There is
Congress when two houses of Congress are functioning. If there is only
one that is functioning, as one has adjourned earlier than the other, then
Congress is deemed to be in automatic adjournment). That is why, by
practice, the calendars of both Houses are always harmonized in the
sense that they shall have simultaneous sessions for both.
INITIATIVE AND REFERENDUM
The law in point would be RA 6735, which has provided for the
mechanism by which the public can exercise their power of initiative and
referendum. When we say initiative, it is the power to propose and enact
legislation through an election process. Referendum is the power to
approve or reject an intended legislation through a plebiscite. So one is
different from the other.
In the old case of Santiago vs. Comelec, it has been ruled that initiative
is only good for legislation; it is not good for amendment of the
Constitution. In legislation, there are national and local legislations. For
purposes of Local Legislation, R.A. 6735, provided the mechanism for
local legislation. You could also find mechanism for local legislation
under initiative in the Local Government Code. It provides that there
must have to be prior demand by the proponent to the local district
council. There is a required number of people who must have to make a
demand for the local council to enact a legislation 30 days from receipt
of such demand. If the council would fail to meet the demand for refusing
or failing to enact the legislation so demanded, then the proposal on
initiative shall proceed.
In both national and local, we follow the 10 and 3 percentage
requirement required by the Constitution. If its national legislation, 12%
is required, 3% will be for every district affected. For the local, in the
autonomous regions, provinces and cities, it will be 10% of the local
government, and 3% for every district affected.
If there is only one district in the province or city, 10% would be from
such province or city, and 3% from the municipality in the province or
the barangay in the city.
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If the proposition shall come from the barangay, there are no 10% and
3%, only 10%. 10% of the barangay must have to propose the initiative.
Initiative is technically the law as written. It is actually like a bill, and at
the end of the bill, there would be signature sheets, which would be filled
up by those who would want to support the proposition. The 10% and
3% will have to be determined and satisfied, and thereafter determined
by the Comelec. If the Comelec will certify that the 10% and 3% have
been met, then the Comelec will issue the resolution calling for a
plebiscite for that proposition.
So basically that is how it is to be exercised.
OTHER LIMITATIONS
SUBSTANTIVE LIMITATIONS
Article III (Bill of Rights)
Article VI :
Sec. 25 (Appropriations Bills)
Sec. 28 (Rule on Taxation)
Sec. 29 (Need for an appropriation to get money
from the public treasury)
Sec. 30, (Increase in the appellate jurisdiction of
the Supreme Court)
Sec. 31, (Prohibition on granting titles of royalty)
Article XIV, 4(3) (Exemption from Taxation of Non-Stock,
Non- Profit Educational Institutions)
Section 25.
The Congress may not increase the appropriations recommended by the
President for the operation of the Government as specified in the budget. The
form, content, and manner of preparation of the budget shall be prescribed by
law.
No provision or enactment shall be embraced in the general appropriations bill
unless it relates specifically to some particular appropriation therein. Any such
provision or enactment shall be limited in its operation to the appropriation to
which it relates.
The procedure in approving appropriations for the Congress shall strictly follow
the procedure for approving appropriations for other departments and agencies.
A special appropriations bill shall specify the purpose for which it is intended, and
shall be supported by funds actually available as certified by the National
Treasurer, or to be raised by a corresponding revenue proposal therein.
No law shall be passed authorizing any transfer of appropriations; however, the
President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from savings in other
items of their respective appropriations.
Discretionary funds appropriated for particular officials shall be disbursed only for
public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law.
If, by the end of any fiscal year, the Congress shall have failed to pass the
general appropriations bill for the ensuing fiscal year, the general appropriations
law for the preceding fiscal year shall be deemed re-enacted and shall remain in
force and effect
Section 28.
The rule of taxation shall be uniform and equitable. The Congress shall evolve a
progressive system of taxation.
The Congress may, by law, authorize the President to fix within specified limits,
and subject to such limitations and restrictions as it may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the
Government.
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Charitable institutions, churches and personages or convents appurtenant
thereto, mosques, non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used for religious, charitable, or
educational purposes shall be exempt from taxation.
No law granting any tax exemption shall be passed without the concurrence of a
majority of all the Members of the Congress.
Section 29. No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.
No public money or property shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or to
any penal institution, or government orphanage or leprosarium.
All money collected on any tax levied for a special purpose shall be treated as a
special fund and paid out for such purpose only. If the purpose for which a special
fund was created has been fulfilled or abandoned, the balance, if any, shall be
transferred to the general funds of the Government.
Section 30. No law shall be passed increasing the appellate jurisdiction of the
Supreme Court as provided in this Constitution without its advice and
concurrence.
Section 31. No law granting a title of royalty or nobility shall be enacted.
Art. XIV, 4 (3)
All revenues and assets of non-stock, non-profit educational institutions used
actually, directly, and exclusively for educational purposes shall be exempt from
taxes and duties. Upon the dissolution or cessation of the corporate existence of
such institutions, their assets shall be disposed of in the manner provided by law.
Proprietary educational institutions, including those cooperatively owned, may
likewise be entitled to such exemptions, subject to the limitations provided by law,
including restrictions on dividends and provisions for reinvestment.
DELEGATION OF POWERS
Now, non-delegation of powers is based on the supposed exercise of
power by Congress, the Executive and Judiciary. By nature, it has been
delegated to them by the people in their sovereign capacity. So what has
been delegated cannot be delegated further. What they are exercising is
not power in its shrewdest sense but actually an obligation or privilege
having been delegated that power.
The prohibition on non-delegation of power is supposed to be applicable
to all branches of government, but the concentration of the cases and
discussions are on the legislative branch, because it is almost always
Congress that has been delegated the power to legislate not really sufficiency of standards test has been used more because the
the power and discretion to determine what the law is but the power how
the law should be executed. The first cannot be delegated, it remains in
Congress, but as to how the terms of the law shall be implemented or
executed can be delegated.
DOCTRINE OF QUALIFIED POLITICAL
AGENCY
We all know that allowable delegation refers to the Doctrine of Qualified
Political Agency. The members of the Cabinet are supposed to be alter
egos of the President; that their acts official acts are considered act of
the President, until and unless changed by the President. They can
perform any and all acts of the President, which under the Constitution
or under the law cannot or are not required to be exercised by the
President in person.
Can you think of any act which the President must have to do
personally? (We will go to that when we reach the Executive)
That is allowable delegation in the executive branch.
DELEGATION OF JUDICIAL POWERS
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In the Judiciary, is there delegation of judicial power? Try to imagine how
the case is processed from its inception up to the time it is to be decided.
The first thing would be before you go to court for civil or criminal cases
(where the penalty does not go more than the allowable), one must have
to go through the proceedings in the Katarungang Pambarangay as
provided in the Local Government Code. Is it that a delegation of Judicial
Power? Where members of the Lupon will have the authority to settle
actual controversies before they are filed in court. That if the action, if
proper, is not passed through the Lupon, the cause of action is
considered to be premature, a jurisdictional effect; hence, it affects
cause of action, which will be subject to dismissal.
Or if the case is not in court, there is now a requirement that cases will
have to go through what is known as Alternative Dispute Resolution
and we know that there are two. One, mediation which is part of pretrial
and there is a mediation council where all cases, if proper, will have to
pass through. In the expanded judicial dispute resolution, judges are
supposed to mediate as well. And only if there is no settlement reached
despite those three prior proceedings can the case proceed accordingly.
The judicial dispute resolution is part of pretrial and if that judge
handling the JDR and is not successful in making the parties to settle,
that case will not be heard by him but by another judge. So is this an
example of allowable delegation of judicial power?
DELEGATION OF LEGISLATIVE POWERS
Now, there are basically two tests mentioned in our books allowable
delegation.
TESTS ON ALLOWABLE DELEGATION
First is the complete of statute test. It is an old test which is hardly
used now. Second, the sufficiency of standards test.
The sufficiency of standards test as the term suggests is
characterized by the fact that the law, once it leaves Congress is
complete on its terms. All that the delegate will have to do is to
implement its provisions. There is no other act that the delegate would
do as part of the delegated authority, except to implement the law.
REVISED PENAL CODE
I would like to make as an example, your delegation based on the
Revised Penal Code on the imposition of penalties. Felonies are defined
with corresponding penalties. Judges will always have the discretion on
what penalty to impose, provided it is within the range. So this
complexities of modern life has brought about difficulty in Congress in
coming up with a legislation complete on its terms.
SPECIALIZED SKILL IN A PARTICULAR FIELD
With the same reasons as there are various departments in the
executive branch being created. This is because of the need of
specialized skill in a particular field of activity. Before we have less of
them, now, we have more of these administrative agencies because
there are a lot more required in terms of specialized knowledge in the
field of activity which are affected by legislation.
So for example, before, employer-employee conflicts are just with the
DOLE. Now there is another office under the DOLE, the NLRC, which is
technically handles all these cases and only a few remain with the
DOLE as an office, because again there is a need of specialized skill
and knowledge from these activities which are affected by legislation.
And so because of which, Congress usually grants an executive office
the authority to exercise the power to fill in the details, to fill in the gaps,
provided the standards are sufficient.
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The standards are sufficient if the standards are enough to limit the
authority of the delegate; it does not mean that the delegate has
unbridled discretion on how to implement the terms of the legislation.
What is important is that power is delegated and such delegated power
is limited. If the law is complete in such respect, then the standards are
deemed sufficient. In several discussions in the past, the Courts have
said that the standards need not be in one law. Say here is a law, like
your Labor Code in fixing minimum wages. When the Labor Code was
amended to provide for the creation of the Regional Tripartite Wage and
Productivity Board, it granted it the power to fix the minimum wages for
regions. Just like the guidelines for the issuance of bail bonds. There is a
listing, one up to a number. These are the guidelines on how the
Minimum wages should be fixed. That is the ideal, but it is not required
in all instances because there is a possibility that standards may be
contained even if they are not in one law. There may be several laws
with the same subject matter, and there are several standards in each
law. Taken all together, they are enough to limit the power of the
delegate to implement the terms of the law, and that will be considered
as sufficient.
SUBORDINATE LEGISLATION
Ok. Now, the allowable delegations, generally, would be the delegation
of executive offices. That is normally referred to as subordinate
legislation. [The rule making power of administrative office]. This rule
making power, to be valid must have to satisfy the requirements:
1. Germane to the purpose of the law;
2. Rules must conform to the law;
3. It must not violate the Constitution.
That would be on the so-called substantive validity, because
procedurally we all know that these rules must have to be submitted to
the UP Law Center for eventual publication in the UP National
Administrative Registry. And if these rules on publication are not
followed, they are not considered effective, especially on their penal
sanctions. These rules are also referred to as Implementing Rules and
Regulations of an existing legislation.
The other allowable delegation of legislative power is the Delegation to
the Local Government Units.
R.A. 7160, Section 16. General Welfare. - Every local government unit shall
exercise the powers expressly granted, those necessarily implied therefrom, as
well as powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and enrichment of
culture, promote health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience
of their inhabitants.
When R.A 7160 was enacted, it carried with it Section 16 or the General
Welfare Clause. It provides for two types of delegating authority. First is
the grant of delegated authority as specified by Congress in specific
legislation. The second is the general welfare clause as delegated by
Congress to LGUs, granting them power to promulgate ordinances for
the promotion and protection and enforcement of the general welfare
clause. So one is a specific grant, the other is a general grant.
Now try to read RA 7160, the question has always been, is the
delegation to LGUs based on any existing legislation? No.This is one
exception where the delegation is made valid because of a time
immemorial practice. The delegation to LGUs has been allowed ever
since even if there was no legislation to that effect. Prior to RA 7160 it
has been a bit blurry, but it has been allowed in several cases. The
reason for that, the SC said, is that LGUs are in the position to
determine what the needs of the locals are. These are just matters which
cannot be subjected to national legislation because the conditions or
circumstances may be peculiar with one LGU and not with the other.
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So example, in income taxation, there is national income taxation, and
there is also local taxation. In the LGC, local taxation will grant LGUs the
power to tax and there are listings there, but you wont suppose that
everything in the list will be applicable to all simply because they may
not have been available or no activity is existing in the LGU. National
legislations may not be applicable to every LGU because there are
peculiarities in every LGUs. That is why the power of LGUs to legislate
or craft and enact ordinances has been allowed as delegated authority
based on time immemorial.
With the passage of the LGC, there is no question that LGUs
can now exercise delegated authority to legislate.
EMERGENCY POWERS
ART. VI, SEC. 23(2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
There is also delegation to the President. The delegation would be those
under the Flexible Tariff clause, and Sectiom 23 (2) [delegation to the
President during times of emergency], the exercise of which are subject
to sufficient standards. What are these standards?
1. It is subject to a law,
2. it is subject to a limited period,
3. Subject to the intent that the Congress may have
delegated it.
It is not simply because the President has been granted delegated
legislative powers that the President can exercise any power. It is
limited, even by the Constitution itself. Congress is directed to enact a
law providing for such limitations.
PROCEDURAL LIMITATIONS
The second type of limitation or kind would be the procedural limitations.
Now, basically the procedural limitations would refer to the provisions of
the Constitution with respect to the readings. There must have to be 3
readings. The final form of the bill must be printed at least 3 days before
the 3rd and final reading. We all know that the 2nd reading is where all the
debates are. The 3rd reasing, no debates or discussions, only the votes
shall be made.
Now there is this case, Datu Michael Abas Kida vs. Senate (Feb. 28,
2012). This refers to the law which postponed the ARMM regional
elections for synchronization in the national and local elections. In the
discussion on the passage of bills, the petitioner contended that said bill
did not comply with the procedural requirements under the Constitution.
The SC said that the bill was certified as urgent. When the bill is certified
as urgent, what is it exempted from? Is it exempted from 3 readings?
No. What it is exempted from is the readings in separate days. So
when the session convenes in the morning, the first reading will be the
reading of the title. Then we go automatically to the 2nd reading. They
argue on it, debate on it, and then print the final form. Then in the
afternoon, they vote on it. That is supposed to be the extent of the
exemption from the coverage of the procedure for passage of bills, if the
bill is certified as urgent.
What about the printed copies of the final version of the bill prior to
voting? Can the certification (that it is urgent) made by the President
exempt it from such? Read the case. It is a long case. But I (Sir Montejo)
have a difficulty in accepting the proposition of the SC that it is also
exempted. And the final draft can be had later for the President to sign. I
always believed that even if the bill is certified, it is exempted from the
3-day prior to the final reading rule, but it is not supposed to be
exempted from the requirement that the final bill must be printed before
the members of Congress shall vote on it on 3rd reading. So, if it is
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certified, yes, you can have 3 readings in one day and you can vote on it
on 3rd reading on the same day. However there must have to be a final
draft, printed at that, exempted from the 3-day prior rule, for the
members to vote on. What the SC suggests in the case of Kida is that
they can vote on it and let the printed copies be there later for the
President to sign. Of course, the President cannot sign if there is no
printed copy.
So how should we go about it? Can members of Congress vote on the
3rd and final reading, if certified as urgent without a printed copy? What
are they voting on or voting for? Remember that when they vote on it,
eventually there is an enrolment of the bill. And that enrolment of the bill
would have to be submitted to the President.
Now if we are going to give meaning to this decision, yes, members of
Congress can vote on the bill, because, anyway, the voting will not be
effective until the bill is finally enrolled. Under the presumption that they
will perform their official duties regularly, they will have a printed copy of
the bill and check if that bill is reflective of what they agreed on and
voted upon before it is to be enrolled. We know that the enrollment of the
bill is a certification that it is the draft which has been voted on and
approved by the House.
So again, certification will exempt the bill from the requirement of the
separate-day-readings rule. But not the 3 readings. And it will also
exempt the bill from following the procedure of printed copies which
must be in place before the 3rd and final reading. They can vote on the
bill on the 3rd reading on the same day even if there is no printed copy
but the printed copy, which will come later, must have to be reflective of
what has been voted on and approved by the House before it is enrolled
and thereafter submitted to the President for signing.
That is the extent of the exemption by reason of the President certifying
that the bill is urgent.
Sir Montejo: Any question so far?
Class: (Crickets)
Sir Montejo: I like this Class
Now lets go to
QUESTION HOUR, ADMINISTRATIVE
INVESTIGATIONS, and INQUIRIES IN AID
OF LEGISLATION
Section 21 has always been discussed in relation to Section 22
(question hour). Section 22 is a new inclusion in the Constitution, while
Section 21 is not; it has been there since the 1935 Constitution.
Section 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in, or affected by,
such inquiries shall be respected.
Section 22. The heads of departments may, upon their own initiative, with the
consent of the President, or upon the request of either House, as the rules of
each House shall provide, appear before and be heard by such House on any
matter pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least
three days before their scheduled appearance. Interpellations shall not be limited
to written questions, but may cover matters related thereto. When the security of
the State or the public interest so requires and the President so states in writing,
the appearance shall be conducted in executive session.
In the old case of Arnault vs. Nazareno, SC said it is considered part of
the powers of Congress to make inquiries in aid of legislation as an
adjunct to the power of Congress to legislate. This gives the Congress
the power to inquire, secure, and acquire necessary facts or information
which may be used in their legislative work. If they are not given this
authority they may not be able to come up with good legislation.
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Section 22 is new in our system, as it was just incorporated in the 1987
Constitution. This refers practically to members of the executive family.
Members of the executive family may be called with the presidential
consent to testify on their respective departments. This has to be
distinguished from inquiries in the aid of legislation where any person
can be subjected to the inquiry and there is no limitation on the subject
matter of the inquiry. As decided in the old case of Arnault, anything
and everything within the ambit of legislative power can be the subject of
an inquiry. That is a very broad and general statement. There seems to
be no limitation. In question hour, only the executive departments.
JEAN L. ARNAULT vs. LEON NAZARENO, Sergeant-at-Arms, Philippine
Senate, and EUSTAQUIO BALAGTAS, Director of Prisons, respondents.
July 18, 1950 G.R. No. L- 3820
FACTS: The Philippine Government bought two estates known as Buenavista
and Tambobong for the sums of PhP 4,500,000.00 and PhP 500,000.00,
respectively.
The Government paid PhP1,000,000.00 and PhP 500,000.00 respectively for the
two estates to Ernest H. Burt who is represented in the Philippines by Jean
Arnault.
The Senate issued a resolution calling for an investigation of the purchase of the
two estates. Jean Arnault was called in as a witness. He was able to relate how
he disposed of the money he had received in Burts behalf, but when asked who
he gave the amount of PhP 440,000.00, Arnault initially answered that he cannot
remember the name of the person and then, he went on to say that if he
answered the question, he would incriminate himself. The Senate ordered his
incarceration for his contumacious act of refusing to answer the question
propounded to him.
ISSUE: Whether or not either house of Congress has the power to punish a
person not a member thereof for contempt
RULING: YES. The power of inquiry with the process to enforce it is an
essential and appropriate auxiliary to the legislative function. Where the
legislative body does not itself possess the requisite information, recourse must
be had to those who possess it.
Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always accurate
or complete; so some means of compulsion is essential to obtain what is needed.
But no person can be punished for contumacy as a witness before either House,
unless his testimony is required in a matter into which that House has jurisdiction
to inquire. The materiality of the question must be determined by its direct relation
to the subject of the inquiry and not by its indirect relation to any proposed or
possible legislation.
If the subject of investigation before the committee is within the range of
legitimate legislative inquiry and the proposed testimony of the witness called
relates to that subject, obedience to its [Senates] process may be enforced by
the committee by imprisonment.
Now as to the right to refuse In inquiries in aid of legislation, if the right
to refuse can be based on the rules which are published as well as the
rights of persons (appearing on Bill of Rights). So if one should claim a
violation of his right to privacy, that may be a basis for refusing to appear
to an inquiry in aid of legislation. Otherwise, the normal refusal is not on
the appearance but on the compulsion to answer a question which is
incriminating in character. That is the best refusal, (or) ground by which
a person may refuse to answer a question. Of course, in question hour,
if the subject of the inquiry is not in your department, you can practically
refuse to appear altogether.
With respect to the manner or mode of the questioning inquiry in aid
of legislation is subject to the rules of the house. There is no specific
requirement as to form, nature or character of the questions. In question
hour there is a requirement that written interrogatories must have to be
submitted before, in order for the department head to know in advance
what the matter of the inquiry shall be.
This matter of inquiry in aid of legislation and question hour has been
subjected to a discussion recently because of that case involving the
members of the cabinet of the former President.
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One question was whether members of the cabinet can be subjected to

inquiries in aid of legislation. If they can be, should they be required to
secure presidential consent? Note that there was an executive order
issued by the President then. And will these heads of departments also
cover those other persons under the rule of proximity?

Members of the cabinet can now be questioned not under Section

22 but under Section 21. Inquiry in aid of legislation is not limited to
any other persons other than members of the Cabinet; they can be
asked of any question, of any matter which would be necessary for
Congress, as part of their powers pertaining to legislation. Should they
be required to secure presidential consent? No. However, in either case,
there must have to be the observance of what we know as the
executive privilege rule. Matters which are part of executive privilege
cannot be the subject of an inquiry in aid of legislation or question hour.

Now this executive privilege is not really based on an affirmative rule or

positive rule of law. This is just based on what has been generally
covered by the so called separation of powers. This privilege has gained
significant importance as a political law matter because of the so-called
Watergate scandal, when President Nixon was supposed to have made
and illegal order for the conduct of trade. Congress wanted to secure the
necessary information, not only the report statements but also those of
persons who may be in the know as to what really transpired to
eventually make him liable for it.

In our situation, the SC had the occasion to discuss what these

privileges are. There are generally two types of communications
covered:
1. Presidential communications privilege
2. Deliberative process privilege

The Presidential communications privilege reflects presidential

decision making which therefore includes anything, discussions,
documents, which eventually led to the President to make a decision.

The Deliberative process privilege generally refers to advisory

opinions applicable to all government officials in coming up with a
decision. So, it is not necessarily limited to the President.

With respect to Presidential communications privilege, the allowance for

judicial or legislative inquiry is lesser than in the deliberative process
privilege. In the second (deliberative process privilege), there is greater
allowance for Congressional or judicial inquiry. If you remember that
case of Neri, the SC said that those four questions [asked of Neri] this
are covered by the Presidential communications privilege because these
questions would necessarily relate to the eventual decision of the
President. Those are still covered under the privilege and cannot be
inquired into either under Sections 21 or 22, even if there is no
requirement for prior presidential consent.

With respect to the Presidential communications privilege as applied to

the case of Neri, there is the application of the rule of proximity. So
whoever were there when a communication was made that eventually
led to the decision of the President are covered by the privilege, even if
he was not a head a department.

Waiter lang ka, tig serve ug kape, naa man ka didto pag istorya nila. Are
you covered by the privilege? Technically if you say proximity rule, you
are covered regardless of your position in the government.

[Pendatun, Dats]

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 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
July 10, 2012
LEGISLATIVE PROCESS
Requirements as to bills
(1) As to titles of bills
As to the title of bills, it has been the principle that the title shall prevail
over the contents or text of the statute because under Art. VI, sec. 26(1)
Every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof.
There are three reasons for the principle:
1. To avoid lack of legislation or insertions which are not
supposed to be allowed when the bill is under consideration;
2. It should give fair notice and warning to members of
Congress what the subject or intent of the legislation is;
3. It should give notice to the public of what the proposed
legislation is by simply reading the title.
There is 1 requirement, however, that the title of the bill should be the
subject index, so to speak, of the bill for so long as the words, phrases
and title generally give an idea of what the subject matter of the bill is,
that would be consistent. As a matter of fact, in this case of Banat vs.
Comelec... RA 9369 is [basically a law] on poll operation but it provided
for some other election-related issues. The SC said that that would be
consistent with the phrase and for such other purposes as been
provided for by law since any other related matter with respect to the
conduct of Automated Elections would necessarily be considered as
proper for inclusion in the subject of the bill as embraced in the title.
In relation to that, certain bills must originate from the House of
Representatives. This does not mean that the bills listed in the
Constitution would require representation from the House of
Representatives, unlike the Senate which has no definite representation
with respect to districts as they represent the entire country so to speak.
Among those in the list would be appropriation bills and private bills.
The provision with respect to the origin of bills does not prevent or does
not prohibit the Senate from introducing its own version of the bill. What
the provision prohibits is the House of Senate acting on its own version
as a body, (i.e. processing it into three required readings without first
receiving the approved version of the lower house). The filing of a
corresponding bill of the same nature (which must originate from the
lower house) is not prohibited. What is prohibited, again, is for the
Senate to act on the bill as filed, by processing it into three required
readings. Filing, again, is not prohibited.
Still on the same subject matter, there are two questions raised there:
1. Can the House of Senate in relation to these bills which must
originate from the lower house come up with its own version
totally different from the version as approved in the House of
Representatives?
2. What is the No Amendment Rule?
The No Amendment Rule is a principle that states that once a bill is
passed and therefore approved by a house, that house cannot anymore
introduce any improvement (based on the constitutional provision on
procedure for the passage of bill). Once a bill is on its third and final
reading, there are no more debates, amendments or discussions
allowed. On the third and final reading, only the approval or the
judgment of the bill is taken and the votes recorded accordingly. So after
that is done, there is no more amendment allowed coming from that
same house. So that is the import of the No Amendment Rule.
So when that approved version, for example, of an appropriations bill is
then submitted to the House of Senate for its own consideration, we
made mention earlier that the House of Senate is not precluded from
filing its own version. Now in coming with its own version, the
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Constitution says that the Senate may propose amendments or
revisions. Is the authority of the Senate going back to the first
question will it include the authority in proposing amendments or
revision, propose a totally different version of the approved version of
the bill coming from the lower house? The answer is yes.
In the case of ABAKADA vs. Executive Secretary, the power of the
Senate would allow it to even include the substitution provided that the
substituted bill should be germane to the purpose of the law. So, for
example, if the appropriations bill contains this much, the Senate can
actually provide for a different figure as to what has been approved for
so long as it pertains to the same subject matter.
ABAKADA vs. Executive Secretary
G.R. No. 168056 September 1, 2005
The Court reiterates here that the "no-amendment rule" refers only to the
procedure to be followed by each house of Congress with regard to bills
initiated in each of said respective houses, before said bill is transmitted to
the other house for its concurrence or amendment. Verily, to construe said
provision in a way as to proscribe any further changes to a bill after one house
has voted on it would lead to absurdity as this would mean that the other house of
Congress would be deprived of its constitutional power to amend or introduce
changes to said bill. Thus, Art. VI, Sec. 26 (2) of the Constitution cannot be taken
to mean that the introduction by the Bicameral Conference Committee of
amendments and modifications to disagreeing provisions in bills that have been
acted upon by both houses of Congress is prohibited.
In the same case of ABAKADA, the bicameral conference committee
has come again to the picture. What is this bicameral conference
committee? A bicameral conference committee is a practice in
Congress (sometimes referred to as the third house) which comes into
motion in the exercise of its powers when there are two conflicting
versions coming from the two houses. The primary function of the
bicameral conference committee is to harmonize the two conflicting
versions of the bill coming from both houses. It could also be used as a
venue wherein the bill will be fine tuned. The changes may include the
power to approve a totally different version of the bill. So the limitation
would still be that the proposed and new substituted bill will have to be
on the same subject matter as may have been approved by both
houses, the Senate and the House of Representatives.
It should be borne in mind that the power of internal regulation and discipline are
intrinsic in any legislative body for, as unerringly elucidated by Justice Story, "[i]f
the power did not exist, it would be utterly impracticable to transact the
business of the nation, either at all, or at least with decency, deliberation,
and order." Thus, Article VI, Section 16 (3) of the Constitution provides that
"each House may determine the rules of its proceedings." Pursuant to this
inherent constitutional power to promulgate and implement its own rules of
procedure, the respective rules of each house of Congress provided for the
creation of a Bicameral Conference Committee.
XXX
The creation of such conference committee was apparently in response to a
problem, not addressed by any constitutional provision, where the two houses of
Congress find themselves in disagreement over changes or amendments
introduced by the other house in a legislative bill. Given that one of the most basic
powers of the legislative branch is to formulate and implement its own rules of
proceedings and to discipline its members, may the Court then delve into the
details of how Congress complies with its internal rules or how it conducts its
business of passing legislation? Note that in the present petitions, the issue is not
whether provisions of the rules of both houses creating the bicameral conference
committee are unconstitutional, but whether the bicameral conference
committee has strictly complied with the rules of both houses, thereby
remaining within the jurisdiction conferred upon it by Congress.
The question then would go back to the second question: is it not a
violation of the No Amendment Rule? The answer is NO because both
houses have not actually made new amendments or proposals to the
version as submitted. This is a totally new version submitted by the
bicameral conference committee.
If you remember the ruling of that old case of Arroyo vs. De Venecia,
even the voting procedure in the Constitution is not violated when the bill
coming from the bicameral conference committee is voted by both
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
houses based on the simple procedure of asking whether or not there
are objections to the passage of the bill. In the case of Arroyo vs. De
Venecia, when the bicameral conference committee report which is
actually the revised version of the bill was presented to the floor,
everybody was asked whether there are objections to the approval of the
report. There being none, then the report is supposed to be taken and
therefore approved. No call of the roll was made and no votes were
taken which are the usual procedures when the bill is on its third and
final reading. The SC said there is no violation on the provision of the
Constitution on the passage of bills because it has already been
previously passed upon. And the bicameral conference committee is not
covered by the constitutional provision.
Other specific requirements on Appropriations laws, you have Sections
24 and 25.
Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of
the public debt, bills of local application, and private bills, shall originate
exclusively in the House of Representatives, but the Senate may propose or
concur with amendments.
Section 24 would refer to the provisions on appropriations bill. Thats the
first item there. It requires that provisions in the appropriations bill must
be for a particular appropriated item. From that definition, comes the
Doctrine of Inappropriate Provision. Generally all statutes, except
appropriation bills, may refer to ordinary words and phrases as may be
the intent of the legislation. But with respect to appropriations bill, theres
a constitutional requirement that all provisions must relate somehow to a
specific appropriated item (i.e. how much the expenditure is; how should
the expenditure be made including the conditions on when and how
these expenditure shall be allowed or made).
Any other provision which has nothing to do with the appropriated item is
considered to be an inappropriate provision. This inappropriate provision
will be a ground for the President to veto that provision [not because the
President has veto powers under Section 27 but because this is
inappropriate under Section 25]. And that would be the basis of the
Presidents authority to delete or veto that particular provision.
Section 25.
1. The Congress may not increase the appropriations recommended by
the President for the operation of the Government as specified in the
budget. The form, content, and manner of preparation of the budget
shall be prescribed by law.
2. No provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be
limited in its operation to the appropriation to which it relates.
3. The procedure in approving appropriations for the Congress shall
strictly follow the procedure for approving appropriations for other
departments and agencies.
4. A special appropriations bill shall specify the purpose for which it is
intended, and shall be supported by funds actually available as
certified by the National Treasurer, or to be raised by a
corresponding revenue proposal therein.
5. No law shall be passed authorizing any transfer of appropriations;
however, the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the general appropriations law for
their respective offices from savings in other items of their respective
appropriations.
6. Discretionary funds appropriated for particular officials shall be
disbursed only for public purposes to be supported by appropriate
vouchers and subject to such guidelines as may be prescribed by
law.
7. If, by the end of any fiscal year, the Congress shall have failed to
pass the general appropriations bill for the ensuing fiscal year, the
general appropriations law for the preceding fiscal year shall be
deemed re-enacted and shall remain in force and effect until the
general appropriations bill is passed by the Congress.
The procedure for appropriations will be similar to all departments. We
all know that. All offices in the government whether they belong to the
legislative, judiciary, the constitutional commissions must have to submit
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their budget or expenditures to the executive (meaning the President).
The President is supposed to submit the same to Congress and that will
be the basis for Congress to enact the General Appropriations bill. Since
all of the budget, including that of Congress, should be submitted to
Congress. The Constitution says the procedure for passage of all the
appropriations shall be similar to all.
Normally, in the budget hearings in Congress, all the heads of the
respective executive departments, offices, including that of the Supreme
Court for the judiciary will be called upon to attend the budget hearings.
The budget hearings will be an opportunity for these heads of offices to
prove the necessity of the budget as submitted by the President. So if
these officers are to be called to the budget hearings to defend the
necessity of their expenditure, the same procedure should be taken for
those in Congress. So the heads of the respective houses of Congress
will also be called to defend their particular budget. Congress, under the
Constitution, cannot increase the budgetary suggestions submitted by
the President but can only maintain or decrease if there is no compelling
reason.
For special appropriations, the purpose and availability of funds shall
be provided. In special appropriations, there must be an available
revenue proposal for the availability of funds.
There is automatic re-enactment in order not to blackmail the President
into approving the request of Congress as part of horse trading. The
appropriations for the previous year if not so approved by Congress shall
be deemed to be automatically re-enacted.
The final item there would be transfer of funds. The rule is that it is
generally not allowed. One who transfers funds from an appropriate item
to another, for me, is liable for technical malversation. There may have
been no personal benefit on the part of the public officer but because the
expenditure for the appropriated amount was spent for a purpose other
than what has been allowed by Congress then there will be technical
malversation. Transfer of funds may be allowed if there is a law granting
such authority. The law must however pertain only to those officers
mentioned in the Constitution. If you notice, these are the heads of the
different branches of government including the Constitutional
Commissions.
1. President
2. President of the Senate
3. Speaker of the Lower House
4. Chief Justice of the Supreme Court
5. Head of the Constitutional Commission
Another requirement is that the appropriated item must have to have
savings before it can be spent for use in another appropriated item ,
meaning, whatever savings is had in that particular office cannot be
used by that office for any other item which has not been allowed under
the appropriations law. Congress must have approved the
appropriations for the item for which the savings will have to be spent.
Otherwise it will be a violation of what may be penalized under technical
malversation.
With respect to tax laws, the requirement here is simply the exclusive,
direct use of these properties for exemption or taxation, either in real
estate taxation, real property taxation or income taxation. There is
exemption on real property taxation for those properties mentioned that
are exclusively, directly used for those covered purposes. And from the
old case up to the present one, there has to be proof that these
properties have been used exclusively and directly for that. If part of the
real property, though owned, possessed or occupied by any of those
exempted entities but are not directly, actually and exclusively used for
such purposes, the liability shall be pro rated as to the extent not
covered by the exemption. The same [should also apply to] income
taxes for non-stock, non-profit education institutions because they are
actually and directly used for educational purposes.
The final item with respect to the procedure for passage of bills would be
this in relation to the Presidents veto power. Theres an item there in
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
your outline which refers to legislative veto. ABAKADA vs. Purisima
tackles the issue on the oversight functions of Congress. The oversight
functions of Congress with respect to legislation, the kinds are:
1. The so-called power of scrutiny
2. Legislative investigation or congressional investigation
3. Legislative supervision
Legislative veto is a statutory provision requiring the President or an
administrative agency to present the proposed implementing rules and
regulations of a law to Congress which, by itself or through a committee formed
by it, retains a "right" or "power" to approve or disapprove such regulations before
they take effect. As such, a legislative veto in the form of a congressional
oversight committee is in the form of an inward-turning delegation designed to
attach a congressional leash (other than through scrutiny and investigation) to an
agency to which Congress has by law initially delegated broad powers. It radically
changes the design or structure of the Constitutions diagram of power as it
entrusts to Congress a direct role in enforcing, applying or implementing its own
laws.
Congress has two options when enacting legislation to define national policy
within the broad horizons of its legislative competence. It can itself formulate the
details or it can assign to the executive branch the responsibility for making
necessary managerial decisions in conformity with those standards. In the latter
case, the law must be complete in all its essential terms and conditions when it
leaves the hands of the legislature. Thus, what is left for the executive branch or
the concerned administrative agency when it formulates rules and regulations
implementing the law is to fill up details (supplementary rule-making) or ascertain
facts necessary to bring the law into actual operation (contingent rule-making).
Scrutiny. Congress would regularly exercise this power of scrutiny as
part of its oversight functions by making inquiries, not legislative
inquiries. Members of Congress ask regarding the implementation of a
particular law which Congress has passed. This will also cover the
cabinet hearings which will require the heads of departments [to discuss]
the nature of their functions as they may be necessary to be funded on.
And this will also come in the form of question hour with respect to
executive departments.
Congressional investigations would necessarily be your inquiries in
aid of legislation. This is also regularly performed by Congress to enable
them to secure or acquire necessary information or facts for the
proposed legislation, intended legislation or re-examination of an
existing legislation.
Now the third is legislative supervision. This refers to what is also
known as inward turning legislation. Inward turning legislation, which
in this particular case is the power to propose or promulgate
implementing rules and regulations, has been delegated to an
administrative office. Congress provided that before this IRR would be
valid and effective, this should be approved further by Congress. So the
SC said that that is a form of inward turning legislation. And that is
supposed to be invalid and unconstitutional.
When Congress delegates the power to an administrative agency to
promulgate the rules and regulations implementing the terms of a
previous legislation, the power is supposed to be complete, meaning, it
is for the agency under subordinate legislation to promulgate these
rules. For so long as these rules do not contravene the Constitution, they
do not violate the law. The efficacy or approval of these rules should not
be made dependent on Congress. It should not revert back to Congress;
otherwise, it will be considered as inward turning legislation for which it
is considered to be invalid.
In relation to that, we have the veto power of Congress. Congress can
actually exercise veto powers over legislation. The first is simply
not to approve the law during its third and final reading.
The easiest way for Congress to exercise veto is not to process it at all.
For example, on first reading, [you just] read the title and refer it to the
proper committee and let it sleep. And that is a form of a veto.
As to the Presidents veto powers, the general rule is [that the
President should] veto all or none at all. So veto the entire legislation or
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approve the entire legislation. The President cannot veto a part and let
the remainder be valid.
However, for purposes of appropriations, revenue or tariff bills, the
President is given the power to veto a part and let the other remaining
parts be valid and effective.
However, with respect to these provisions on appropriations, revenue or
tariff bills, the general rule on veto all or none at all shall still be followed
for those item or items related to each other. This is also called line item
veto. When the item or items are related to each other, they must have
to be vetoed in its entirety and not only a part and let the remainder be
valid. The most common line item veto will be the condition imposed
upon the expenditure. Say there is an appropriations bill but there is a
condition set by Congress on how money should be spent. The
President cannot veto only the condition and let the appropriations
remain because the item according to the condition is related to the
entire appropriated item. So as to that entire line, the President must
veto all or none at all.
Then the final item as to the power of the President to veto not related to
Section 27 is the so called veto based on the Doctrine of Inappropriate
Provision.
As for the other non-legislative functions of Congress, we have already
taken up the electoral tribunal and Commission on Appointments.
Congress shall act also as board of canvassers in the Presidential and
Vice Presidential elections. Now, as board of canvassers, the authority
of Congress is not unlimited. It cannot go into the questions of
qualifications, elections and returns because they shall belong to the
President Electoral Tribunal.
Congress shall also have the power to call special elections where both
the offices of the President and Vice President are vacant. This is one
location where [since Congress has to enact a law calling for a special
elections, then it shall meet without need of call] the bill calling for the
special election shall be deemed as certified as urgent. There is no need
to certify as to the availability of funds. This is exempt from that. And this
is also exempt from the signature of the President. This bill will become
a law without the signature of the President for the simple reason that
there is no President to sign.
So if the question is asked, when shall a bill become a law without the
Presidents signature? How many instances are there that a bill shall
become a law without the Presidents signature?
1. When the President sits on it, does not return it to Congress
within 30 days from receipt without his veto message, a bill
becomes a law even without his signature.
2. When the bill vetoed by the President is re-passed by
Congress validly. There is no more need for the Presidents
signature for obvious reasons. It will be a circuitous
occurrence. The President will veto it, Congress will re-pass
the veto. If they will let the President sign it, the President will
veto it just the same. There will be no end to the evolution of
that bill.
3. When there is a special elections for the President and Vice
President positions.
Congress shall also have the power, not legislative in character, when it
revokes or extends the martial law declaration or the suspension of the
writ of habeas corpus under Article VII, Sec. 18.
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
Section 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. Within forty-
eight hours from the proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined
by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
Congress approves Presidential Amnesties. Under the plenary power of
the President, Congress shall concur. This is not a legislative function
strictly.
Congress shall also have that power to declare the existence of war. We
have made mention that the power to declare the existence of a state of
war is not to declare war because under Article 2 we abhor war as a
policy. The declaration of the existence of state of war is just a
declaration that there is a state of war in the country. This is to facilitate
all actions of the State towards the war efforts.
Congress shall also have the power to decide on the Presidents
physical fitness and capacity (because of the temporary incapacity
during the term of the President). It shall only decide these questions if
the issue is contested by the President. Supposedly, the President is
given the discretion or initiative to declare himself incapacitated
temporarily and that shall make the Vice President assume the position.
Or if he is not willing to do so, the majority of the members of the cabinet
can declare him to be temporarily incapacitated for which the President
may or may not accept it. If the President accepts it, the Vice President
assumes in an acting capacity. If the President does not accept it or
contests it, the majority of the members of the cabinet will have five days
within which to recontest that. If it is not recontested, so to speak, by the
members of the cabinet, the President will continue to serve. But if it is
recontested, then Congress will have to decide on the issue.
And then we have the impeachment powers. As we have said before,
the impeachment powers of the Congress, as of now, would seem to
give us the principle that it is up to House of Senate to decide which acts
constitute impeachable offenses based on the grounds provided for in
the Constitution. Procedurally or constitutionally, there are 6 grounds
there, 3 of which are defined by existing legislation treason, bribery,
graft and corruption. The three others culpable violation of the
Constitution, betrayal of public trust, and other high crimes have yet to
be defined by the Supreme Court in a case. So it seems that the
question on those three will, as of the moment, depend on how the
Senate will view such acts.
What is important for procedure is that with respect to the one year ban
[the one year ban should apply based on the filing and referral rule]. It
is not the mere act of filing that the one year ban commences. It must
have to be filed and then referred by the house, meaning, there is an
action by the House of Representatives on the complaint. So the mere
filing of several complaints in the Secretary General of the House of
Representatives should not determine whether the one year ban should
commence to run. It is when one of these complaints is referred to by
the House, usually the Speaker of the House referring it to the proper
committee. The proper committee is the Committee on Justice and Good
Governance. Once the referral is made, then the one year ban
commences to run. No other impeachment complaint against the same
officer shall be allowed to be filed within one year from that filing and
referral. So if there is no referral yet, everything can be filed. But once
the complaint filed, it will now have to be determined whether the one
year ban should commence to run.
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That should take care of the legislative department. Lets now go to the
executive department.
EXECUTIVE DEPARTMENT
Qualifications of the President. Theres nothing much to it.
What is meant by the ineligibility of the President to seek re-election?
Should the re-election be for consecutive re-election or should it be re-
election at any other time?
In this case of Pamatong vs. Estrada, the SC could have the occasion
of deciding on the issue of whether or not Estrada is disqualified to seek
re-election the Presidency. His circumstance does not involve automatic
re-election. His circumstance is that he was once a President and then
he wanted to be re-elected at some other time. But as we all know in this
case of Pamatong, the SC dismissed the petition because there was no
need to decide the issue since Estrada did not win.
There will be compelling reasons concerning the circumstance of
Estrada because he did not serve for more than four years. Apparently,
in the Constitution, if a person who has succeeded to the Office of the
President for four years shall also be covered by the re-election
prohibition. But what is really considered in the re-election prohibition, if
you based it on the commentaries, would be that it is not for any time. In
the US, its for 4 years plus 1 re-election. So 8 years all in all. In the
Philippines, we base it on 6 years because 4 is too short for a good
President and 8 is too long for a dictator. So the median is 6. So the re-
election is supposed to be applicable at any other time. You are given
one shot to the presidency. When you sit there, thats it. If you are
removed from office, then there is a problem there but not on the
aspect of re-election because if you have been removed from office or
there was voluntary renunciation, you are considered to have sat for the
whole term.
In the case of Estrada though, it has been decided from a very thin
reasoning. There is actually a decision of the SC saying that the vacancy
in the office of the President during the term of Estrada was valid. The
succession of GMA to the office of the president is also valid. There
were lots of discussion there but basically it boils down to voluntary
renunciation. The SC practically took Estradas memo sent to both
houses of Congress that he is leaving Malacanang. The problem is that
something was lost in the translation. While legally it should mean that
you are abandoning, that you are actually leaving your office, what
Estrada could have meant was he was just going to his home in San
Juan. That is why he is leaving Malacanang. The SC took it to mean that
it was an official notification that he was leaving office. So again, one
meant one thing, the SC took it another way.
There was also one interesting note there where one concurring
opinions that what is meant by permanent disability. Because during the
term of the President, there are four grounds death, voluntary
renunciation, resignation or removal and permanent disability which
will call the removal of the sitting president from office. The removal
there is through impeachment.
But what about permanent disability? Is that disability mental? Should
it be physical? Like the President figured in an accident and his limbs
were cut off but his torso and head remained. His mental state is still
more than fine, he just cannot affix his signature, probably stamp it
somewhere but still he could decide. Should that be considered as a
ground for causing a vacancy in the Office of the President? Or it should
be a mental incapacity? What kind of mental incapacity? Autism? Or
ailment that should create a vacancy in the Office of the President
because of permanent disability?
Or in that concurring opinion, a justice even said that it could even be
institutional incapacity , meaning, if all the institutions of the government
have already withdrawn their support on the sitting president, should that
be considered as permanent incapacity? Like the armed forces, the
different heads of the government, the heads of whatever office or
 CONSTITUTIONAL LAW REVIEW: IV-Manresa
THE MONTEJO LECTURES 2012-2013

institution have signified their express withdrawal of their support in the

sitting president. Should that be a permanent disability which creates a
vacancy in the Office of the President?

Again, there is valid assumption because there is vacancy since Mr.

Estrada had voluntarily renounced or resigned from his position. If he
had resigned, the question is: is the entire term to be tucked against him
so that he will no longer be eligible for re-election? If you remember, we
said before, under the principle of term of limitation, you must have been
elected and served. So for example, if PGMAs election in 2004 is
declared invalid because of irregularities during such election and she is
therefore removed from office, can she still be eligible for 2010 although
she has served but have not been re-elected legally? So could she
eligible for election, not re-election in the 2010 elections? The answer
would be: the principle could apply.

[Go, Faith]

"Most of the important things in the world have been

accomplished by people who have kept on trying when
there seemed to be no help at all."
Dale Carnegie

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 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
July 11, 2012
Ok. Now, let us continue with the rules on succession with respect to the
Office of the President.
THE RULES ON SUCCESSION ARE AS FOLLOWS:
1. If the President has not been chosen but the Vice President
has been chosen after an election then the Vice President
shall sit as acting President until the President is chosen.
2. If a President has been chosen but has yet to qualify, then
the Vice President shall be acting as President until the
President chosen has qualified.
3. If at the beginning of the term the President dies, or becomes
permanently disabled, the Vice President becomes the
President.
4. If during the term the President elect has been disabled or
has died or has become permanently disabled, or has been
removed or has resigned, the Vice President becomes the
President.
5. Now, if there is no President and Vice President at the
beginning of the term, then the Senate president or the
Speaker of the House shall act as President until a President
or a Vice President has been chosen and/or has qualified.
6. If during the term for the same reasons, there is no President
and Vice President, still the Senate president and the
Speaker of the House in case of inability of the Senate
president to act as president shall be the acting president.
The Constitution only treats 2 situations differently in the manner of how
Congress should treat the rule on succession if both the senate
president and the speaker of the house are not willing to act as
president. If the occurrence of the vacancy of both offices shall be at the
beginning of the term, then Congress is supposed to enact a law on the
manner of selecting who shall become the acting President, in case
Senate president or the Speaker of the House is not abled? If the
vacancy in both offices shall occur during the term and both the Senate
president and the Speaker of the House are currently not able to act as
President, then Congress is supposed to provide for a mechanism on
who shall act as President.
Now, in relation to elections that we have discussed last night, there
shall be no elections within 18 months before the next general election.
So the vacancies in the offices of the President and Vice President shall
be heard within 18 months from the next regular elections. There shall
be no special elections. The Senate president and, in his incapacity, the
Speaker of the House shall continue to act as the President until the
next general elections shall be held and a new President or Vice
President shall be elected.
Now, in case of temporary vacancy during the term of the President, the
Vice President shall act as President. In the case of the Vice Presidents
temporary incapacity during his term, there shall be no requirement to fill
out the position in succession. But if the vacancy is permanent during his
term, the President should choose from among the members of
Congress as to who shall become the President. The choice of the
President shall be confirmed by both houses of congress voting
separately.
PROHIBITIONS FOR THE PRESIDENT AND THE VICE-
PRESIDENT
They shall not hold any other office or employment during their term.
Compared to members of Congress with respect to incompatible office
and forbidden office (applicable to Congress), there is no prohibition
except for members of Congress who are lawyers making personal
appearance before the courts or tribunal. Thats the extent of the
prohibition. But with the President or the executive, the prohibition is
complete. They shall not hold any other office nor should they be
engaged in any employment. The only exception there is the ex-officio
position. Now, that ex-officio position has been the matter of discussion
in the case of CLU vs. Executive Secretary as discussed also in this
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case of Betoy vs. Board of Directors.
Now, this Betoy vs. Board of Directors involves the board of director of
the National Power Board. When the EPIRA (Electric Power Industry
Reform Act of 2001) was passed, there were provisions there
specifically sections 11, 48 and 52 creating the PSALM (Power Sector
Assets and Liabilities Management Corporation), creating the
TRANSCO (National Transmission Commission) and the National Power
Board where some cabinet members are supposed to sit e.g. the
Department of Energy secretary, and the Department of. Now, as an
offshoot in this case of Betoy, there was an issue of whether or not
sections 11, 48 and 52 of the EPIRA are violative of the prohibition to
hold additional positions in the office of the executive family in relation to
Sec. 13 of the Constitution. The SC said that they are not because they
are ex-officio positions. As discussed in CLU vs. Executive Secretary
which was quoted substantially the case of Betoy, the Supreme Court
said that in ex-officio positions, the additional tasks are deemed included
in the primary functions of the office. The function there is indicative of
the order of importance, meaning, if it is important to the position (like
the Secretary of Finance sitting as member of the Monetary Board), that
is considered as part of the primary functions of the office . Second, it
must not be by reason of an appointment. The SC in Betoy clarified that
in appointment, there is a right to claim benefits from an office. But in ex-
officio positions you are just merely designated. There is no
appointment; there is only designation. Third, there must be no
additional pay, the reason being that the salaries and benefits of a
primary office deemed to include the additional task to be done by
reason of the additional designation. So what is important is that these
members of the Cabinet sitting in other agencies will not receive
additional remuneration including per diems (Section 14, EPIRA). There
is a provision there that members of the board: TRANSCO, PSALM and
the National Power Board are entitled to receive per diems. The SC
clarified that in order to give meaning to the provision of the EPIRA, that
provision in section 14 on per diems entitlement shall not be applicable
to members of the cabinet because they are getting paid by their primary
offices.
The other prohibition there would be on the practice of profession,
business, as well as financial interests with government offices,
GOCCs, administrative agencies, instrumentalities or subsidiaries. With
respect to the President in relation to his appointive power, he is
prohibited from appointing his spouse and any relative within the 4th civil
degree by consanguinity and affinity to the Constitutional Commissions,
the office of Ombudsman, or as secretaries or undersecretaries, chair
persons or heads of bureaus and offices including GOCCs. So, what is
normally done is they appoint some relatives, not of the President but
friends of the President. I dont know if you have read the newspaper
yesterday or was it today? The Supreme Court ruled that there were
certain payments of benefits to members of the board of the Bases
Conversion Development Authority (BCDA). There were 3 members of
the BCDA who are quite familiar with you probably. Two are sitting
justices of the SC, Brion and the other one and they were ordered to
return of what they have received, almost 200,000 each. Another
member of the board, a brother of Senator Franklin Drilon received
almost a million pesos and benefits. The SC said that they should not be
allowed to receive such amounts, therefore they should return said
amounts to the government.
And the final duty of the President is the duty to disclose his assets,
liabilities and net worth. Now, in your outline, there are exceptions
there to the rule prohibiting executive officials from holding additional
positions. There are 2 mentioned in the Constitution, the Vice President
as member of the Cabinet and the Secretary of Justice as member of
the Judicial and Bar Council (JBC). The other would be the ex-officio
positions.
Now, we move to removal of the President from office. We all know that
this is only by impeachment and the only thing to be remembered there
would be the grounds as well as the procedures especially on the rule
on the one year ban.
CLU vs. Executive Secretary
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
194 SCRA 317 (1991)
FACTS: The petitioner challenged Ex. Order No. 284 which in effect allowed
Cabinet members, their undersecretaries and asst. secretaries and other
appointive officials of the Executive Department to hold other positions in the
govt., albeit, subject of the limitations imposed therein. The respondents, in
refuting the petitioners' argument that the measure was violative of Art. VIII, Sec.
13, invoked Art. IX-B, Sec. 7, allowing the holding of multiple positions by the
appointive official if allowed by law or by the pressing functions of his positions.
HELD: By ostensibly restricting the no. of positions that Cabinet members,
undersecretaries or asst. secretaries may hold in addition to their primary position
to not more than 2 positions in the govt. and GOCCs, EO 284 actually allows
them to hold multiple offices or employment in direct contravention of the express
mandate of Art. VIII, Sec. 13 prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself. If maximum benefits are to be derived
from a dept. head's ability and expertise, he should be allowed to attend to his
duties and responsibilities without the distraction of other govt. offices or
employment.
xxx
The stricter prohibition applied to the Pres. and his official family under Sec. 13,
Art. VII as compared to the prohibition applicable to appointive officials in general
under Art. IX, B, Sec. 7, par. 2 are proof of the intent of the 1987 Consti. to treat
them as a class by itself and to impose upon said class stricter prohibitions.
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the govt during their tenure when such is allowed by
law or by the primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by the Consti.
itself. xxx
However, the prohibition against holding dual or multiple offices or employment
under Art. VII, Sec. 13 must not be construed as applying to posts occupied by
the Executive officials specified therein w/o addition compensation in an ex-officio
capacity as provided by law and as required by the primary functions of said
official's office. The reason is that these posts do not comprise "any other office"
w/in the contemplation of the constitutional prohibition but are properly an
imposition of additional duties and function on said officials.
Now, lets go to the powers and functions of the President.
POWERS AND FUNCTIONS OF THE
PRESIDENT
EXECUTIVE POWER
(Article VII, Secs. 1 and 17)
Now, Executive power is granted to the executive branch, specifically to
the President. As we have said before, this is the only delegated power
of the sovereign people exercised by one person. Legislative power is
shared by Congress composed of 2 houses and the people under the
concept of iniative and referendum. Judicial power is shared by one
Supreme Court and such other lower courts as may be provided for by
law. But the Executive power is largely exercised solely by the
President. Thats why it may seem the most powerful government official
in a particular country which follows the Presidential type of government.
RESIDUAL POWERS OF THE PRESIDENT
While the concept of residual power has been largely discussed in this
case of Marcos vs. Manglapus [the issue refers to the power of the
executive to ban the return of an exile President], the SC nevertheless
said that residual powers apply to all branches of government. Anything
and everything that has something to do with legislative power, or the
exercise of legislative powers though not specified in the Constitution,
are still considered within the authority of Congress. Same with the
Judiciary. The SC said that when the delegation to these branches has
been made, the delegation was in full. What the Constitution has
provided would be a limitation to such specific powers, not the grant of
the power to its full scope. And in that case, the SC even said that what
is not judicial or legislative is necessarily executive and so with the other
powers if not executive or judicial must have to be legislative.
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Now, nevertheless, just because there is residual power, does not mean
that the President has the power to amend laws. The power to amend a
law is still lodged with Congress. It is part of the power of Congress, part
and parcel of legislative authority. This case of Review Center vs.
Ermita is practically on that issue. This involves the power of the
President in issuing an Executive Order requiring review centers (in this
case for the nursing board exams) to be under the auspices and
supervision of the CHED. RA 7722 which grants the power to CHED to
supervise schools of higher learning with degree granting programs. So,
can the President by an executive order require the CHED to supervise
these review centers? The SC said NO because again the supervisory
power of CHED is over schools in tertiary level with degree granting
programs. Review centers do not grant degrees. They just, as the term
suggests, review on certain courses for purposes of national
examinations. So even if that is residual power on the part of the
President, the President cannot amend a law.
Marcos vs. Manglapus, et. al.
Facts: Former President Ferdinand Marcos petitions the SC for mandamus and
prohibition asking to order respondents to issue travel documents to him and his
immediate family and to enjoin the implementation of the Presidents decision to
bar their return to the Philippines.
Issue: WON the President may prohibit the Marcoses from returning to the
Philippines, in the exercise of the powers granted in her by the Constitution.
Ruling: Affirmative. Although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of executive power. The powers of the
President cannot be said to be limited only to the specific powers enumerated in
the Constitution. Whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Even the member of the Legislature
has recognized that indeed Mrs. Aquino has the power under the Constitution to
bar the Marcoses from returning, as per House Resolution No. 1342.
REVIEW CENTER ASSOCIATION OF THE PHILIPPINES vs. EXECUTIVE
SECRETARY EDUARDO ERMITA and COMMISSION ON HIGHER
EDUCATION represented by its Chairman ROMULO L. NERI
Facts: There was a report that handwritten copies of two sets of 2006 Nursing
Board examination were circulated during the examination period among
examinees reviewing at the R.A. Gapuz Review Center and Inress Review
Center. The examinees were provided with a list of 500 questions and answers in
two of the examinations five subjects, particularly Tests III (Psychiatric Nursing)
and V (Medical-Surgical Nursing). The PRC later admitted the leakage and traced
it to two Board of Nursing members. Exam results came out but Court of Appeals
restrained the PRC from proceeding with the oath-taking of the successful
examinees.
President GMA ordered for a re-examination and issued EO 566 which
authorized the CHED to supervise the establishment and operation of all review
centers and similar entities in the Philippines. CHED Chairman Puno approved
CHED Memorandum Order No. 49 series of 2006 (Implementing Rules and
Regulations).
Review Center Association of the Philippines (petitioner), an organization of
independent review centers, asked the CHED to "amend, if not withdraw" the IRR
arguing, among other things, that giving permits to operate a review center to
Higher Education Institutions (HEIs) or consortia of HEIs and professional
organizations will effectively abolish independent review centers. CHED
Chairman Puno however believed that suspending the implementation of the IRR
would be inconsistent with the mandate of EO 566.
A dialogue between the petitioner and CHED took place. Revised IRR was
approved. Petitioner filed before the CHED a Petition to Clarify/Amend RIRR
praying to exclude independent review center from the coverage of the CHED; to
clarify the meaning of the requirement for existing review centers to tie-up with
HEIs; to revise the rules to make it conform with RA 7722 limiting the CHEDs
coverage to public and private institutions of higher.
In 2007, then CHED Chairman Neri responded to the petitioner that: to exclude
the operation of independent review centers from the coverage of CHED would
clearly contradict the intention of the said Executive Order No. 566; As to the
request to clarify what is meant by tie-up/be integrated with an HEI, tie-up/be
integrated simply means, to be in partner with an HEI.
 CONSTITUTIONAL LAW REVIEW:
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Petitioner filed a petition for Prohibition and Mandamus before this Court praying
for the annulment of the RIRR, the declaration of EO 566 as invalid and
unconstitutional exercise of legislative power, and the prohibition against CHED
from implementing the RIRR. Motion to intervene filed by other
organizations/institutions were granted by the Court.
On 21 May 2008, CHED issued CHED Memorandum Order No. 21, Series of
2008 (CMO 21, s. 2008) extending the deadline for six months from 27 May 2008
for all existing independent review centers to tie-up or be integrated with HEIs in
accordance with the RIRR. On 25 November 2008 Resolution, SC resolved to
require the parties to observe the status quo prevailing before the issuance of EO
566, the RIRR, and CMO 21, s. 2008.
Issues: 1. Whether EO 566 is an unconstitutional exercise by the Executive of
legislative power as it expands the CHEDs jurisdiction [Yes, it expands CHEDs
jurisdiction, hence unconsititutional]; and
2. Whether the RIRR is an invalid exercise of the Executives rule-making power.
[Yes, it is invalid.]
Held/Ratio: 1. The scopes of EO 566 and the RIRR clearly expand the CHEDs
coverage under RA 7722. The CHEDs coverage under RA 7722 is limited to
public and private institutions of higher education and degree-granting programs
in all public and private post-secondary educational institutions. EO 566 directed
the CHED to formulate a framework for the regulation of review centers and
similar entities.
The definition of a review center under EO 566 shows that it refers to one which
offers "a program or course of study that is intended to refresh and enhance the
knowledge or competencies and skills of reviewees obtained in the formal school
setting in preparation for the licensure examinations" given by the PRC. It does
not offer a degree-granting program that would put it under the jurisdiction of the
CHED. A review course is only intended to "refresh and enhance the knowledge
or competencies and skills of reviewees." Thus, programs given by review
centers could not be considered "programs x x x of higher learning" that would
put them under the jurisdiction of the CHED. "Higher education," is defined as
"education beyond the secondary level or "education provided by a college or
university."
Further, the "similar entities" in EO 566 cover centers providing "review or tutorial
services" in areas not covered by licensure examinations given by the PRC,
which include, although not limited to, college entrance examinations, Civil
Services examinations, and tutorial services. These review and tutorial services
hardly qualify as programs of higher learning.
2. ) The exercise of the Presidents residual powers under Section 20, Title I of
Book III of EO (invoked by the OSG to justify GMAs action) requires legislation;
as the provision clearly states that the exercise of the Presidents other powers
and functions has to be "provided for under the law." There is no law granting the
President the power to amend the functions of the CHED. The President has no
inherent or delegated legislative power to amend the functions of the CHED
under RA 7722.
The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws, and to
alter and repeal them." The Constitution, as the will of the people in their original,
sovereign and unlimited capacity, has vested this power in the Congress of the
Philippines. Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere.
The President has control over the executive department, bureaus and offices.
Meaning, he has the authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of its officials.
Corollary to the power of control, he is granted administrative power.
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. It enables the
President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents. To this end, he can issue administrative orders,
rules and regulations. An administrative order is an ordinance issued by the
President which relates to specific aspects in the administrative operation of
government. It must be in harmony with the law and should be for the sole
purpose of implementing the law and carrying out the legislative policy.
Since EO 566 is an invalid exercise of legislative power, the RIRR is also an
invalid exercise of the CHEDs quasi-legislative power. Administrative agencies
exercise their quasi-legislative or rule-making power through the promulgation of
rules and regulations. The CHED may only exercise its rule-making power within
the confines of its jurisdiction under RA 7722. But The RIRR covers review
centers and similar entities.
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The power of the President to issue an executive order under EO 292 or
the Administrative Code is one of the ordinance powers of the President.
And I think this would be one of the issues to be raised in the recent EO
79 on the mining industry in the Philippines because it would seem that
EO 79 somehow modified the existing Philippine Mining Act. One
question is: it would seem that EO 79 prohibits open-pit mining but
under national legislation it is not. So an issue maybe raised whether or
not EO79 can expand or modify what has been provided for under the
current Philippine Mining Act.
Ok, now, control over executive department.
CONTROL OVER EXECUTIVE DEPARTMENT
(Article VII, Sec.17)
POWER OF CONTROL VIS--VIS POWER OF SUPERVISION
This power of control is always discussed to distinguish it from the power
of supervision. Power of control is technically the power of the
President to revise, reverse, review, modify or affirm the actions of
subordinate officials. So, the emphasis is on the actions of these
subordinate officials. The President may change the decisions therefore
of these subordinate officials. Whereas the power of supervision is
characterized by the power of the President to insure that the
subordinate officials are performing their duties. So the emphasis is on
the actors and not on the actions of these subordinate officials.
In relation to the power to supervise, the President has the power to
discipline officials to insured that they are performing their functions
even more than required by law. This control power is directly exercised
by the President over the heads of the executive departments, meaning
the members of the Cabinet. And again to all the rest of the officials in
the executive department down to the last employee in the regional
office, but that exercise is indirect
Now, one question is normally asked: If the President has control
powers over the members of the executive department [meaning, the
members of the cabinet], why is it that the President has the power to
remove them? Well, the emphasis on control is on the action and not on
the actor. Now, the power of the President to remove members of the
Cabinet is not based on the power of control. Rather it is based on the
power to appoint. The power to appoint is largely based on trust and
confidence. The trust and confidence level is largely the determining
factor that a person is appointed as head to a particular cabinet position.
Of course, there are some violations in law but largely they are not as
strict as an ordinary bureaucrat in government offices. In some other
lower offices, they would require you to be a career executive official,
who must have to be a CESO. But for members of the Cabinet, it does
not matter because the trust and confidence is the primary qualification
for the appointment. So, it is based on the power to appoint them and
not on the power of control.
DOCTRINE OF QUALIFIED POLITICAL AGENCY
Ok, under the power control of executive department, the doctrine of
Qualified Political Agency comes into discussion. As we said, this is one
of the allowable delegations in the executive department because the
President is not expected to act solely, personally on all the aspects of
the exercise of the executive power. He is allowed under the doctrine of
qualified political agency to delegate some of his powers to the members
of the Cabinet. As mentioned, the members of the Cabinet are
considered the alter egos of the President and all their actions are
considered actions of the President, until and unless changed or
revoked by the President. Now, this case of Banda vs. Ermita involves
the issuance of an executive order by the President outsourcing printing
services from the National Printing Office (which eventually resulted into
the abolition of that office). Now, the question was raised whether the
Presidents power of control would include the power to eventually
abolish that office. The SC said YES because the power to reorganize
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
an office is part of the power of control. In reorganization, some offices
may be abolished in order to streamline the bureaucracy. The only
limitation there is that it must have to be done in good faith as always.
Because if it is done maliciously, illegally, things like that it will not be
considered as done in good faith.
Banda vs. Ermita
G.R. No. 166620 April 20, 2010
FACTS: President GMA issued Executive Order No. 378 on 2004 amending
Section 6 of Executive Order No. 285 by, inter alia, removing the exclusive
jurisdiction of the NPO (National Printing Office) over the printing services
requirements of government agencies and instrumentalities.
Pursuant to Executive Order No. 378, government agencies and instrumentalities
are allowed to source their printing services from the private sector through
competitive bidding, subject to the condition that the services offered by the
private supplier be of superior quality and lower in cost compared to what was
offered by the NPO. Executive Order No. 378 also limited NPOs appropriation in
the General Appropriations Act to its income.
Perceiving Executive Order No. 378 as a threat to their security of tenure as
employees of the NPO, petitioners now challenge its constitutionality, contending
that: (1) it is beyond the executive powers of President Arroyo to amend or repeal
Executive Order No. 285 issued by former President Aquino when the latter still
exercised legislative powers; and (2) Executive Order No. 378 violates petitioners
security of tenure, because it paves the way for the gradual abolition of the NPO.
ISSUE: Whether EO 378 is constitutional.
HELD:YES. It is a well-settled principle in jurisprudence that the President has the
power to reorganize the offices and agencies in the executive department in line
with the Presidents constitutionally granted power of control over executive
offices and by virtue of previous delegation of the legislative power to reorganize
executive offices under existing statutes.
Executive Order No. 292 or the Administrative Code of 1987 gives the President
continuing authority to reorganize and redefine the functions of the Office of the
President. Section 31, Chapter 10, Title III, Book III of the said Code, is explicit:
The President, subject to the policy in the Executive Office and in order to
achieve simplicity, economy and efficiency, shall have continuing authority to
reorganize the administrative structure of the Office of the President.
The case of ANGELES vs. GAITE involves the Memorandum Circular
No. 58 issued by the President in relation to the appeal or review powers
of the Office of the President. In your admin law, you are aware that
administrative agencies have specific rules on appeal. From this office,
where do you go?
If it were in the DOJ, like from the City Prosecutor, where do you appeal
the resolution of the City prosecutor? It depends.
Under the National Prosecutors Rule, if the penalty is more
than 6 years and one day, you go to the DOJ.
If less than 6 years and one day, you go to?
After the DOJ, where do you go? You go to the office of the President.
Now part of the discussion in administrative law is the exhaustion of
administrative remedies. Memorandum Circular No. 58 involving the
appeals in the DOJ, promulgated by the Office of the President on June
30, 1993 reads:
In the interest of the speedy administration of
justice, the guidelines enunciated in Memorandum
Circular No. 1266 (4 November 1983) on the
review by the Office of the President of
resolutions/orders/decisions issued by the
Secretary of Justice concerning preliminary
investigations of criminal cases are reiterated and
clarified.
No appeal from or petition for review of
decisions/orders/resolutions of the Secretary
of Justice on preliminary investigations of
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criminal cases shall be entertained by the
Office of the President, except those involving
offenses punishable by reclusion perpetua to
death x x x.
Henceforth, if an appeal or petition for review does
not clearly fall within the jurisdiction of the Office of
the President, as set forth in the immediately
preceding paragraph, it shall be dismissed outright
x x x.
So if the crime under review is NOT Reclusion perpetua to death, the
DOJ is the last remedy or forum for the review. So this case of Gaite
involves a Judge who filed a case of libel against a lawyer, a prosecutor
actually. The libel case filed for obvious reasons were dismissed. When
it was appealed to the DOJ, for obvious reasons, again the case was
dismissed.
Now Gaite appealed further before the Office of the President but it
dismissed the appeal on the ground that the Office of he President will
only entertain petitions for review if the penalty is Reclusion Perpetua to
Death. Now Gaite said that MC # 58 is violative of the principle of
Qualified Political Agency because it denies the President the power to
control the decision of the cabinet Secretary (in this case the DOJ Sec).
The SC said that there is no violation. The reasoning being is that the
Doctrine of Qualified Political Agency merely allows the President to
delegate some of its powers. If it does not delegate it, then fine. But if he
delegates it in such a way that it allowed it to decide with finality (like in
the case of the MC #58), then that is valid. Unless the Constitution or the
law requires the President to act on the matter personally, all the acts of
the president can be delegated.
The President's act of delegating authority to the Secretary of Justice by virtue
of said Memorandum Circular is well within the purview of the doctrine of
qualified political agency, long been established in our jurisdiction.
Under this doctrine, which primarily recognizes the establishment of a single
executive, "all executive and administrative organizations are adjuncts of the
Executive Department; the heads of the various executive departments are
assistants and agents of the Chief Executive; and, except in cases where the
Chief Executive is required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by
and through the executive departments, and the acts of the secretaries of such
departments, performed and promulgated in the regular course of business,
are, unless disapproved or reprobated by the Chief Executive, presumptively
the acts of the Chief Executive."
XXX
It is quite evident from the foregoing that the President himself set the limits of
his power to review decisions/orders/resolutions of the Secretary of Justice in
order to expedite the disposition of cases. Petitioner's argument that the
Memorandum Circular unduly expands the power of the Secretary of Justice to
the extent of rendering even the Chief Executive helpless to rectify whatever
errors or abuses the former may commit in the exercise of his discretion is
purely speculative to say the least. Petitioner cannot second-guess the
President's power and the President's own judgment to delegate whatever it is
he deems necessary to delegate in order to achieve proper and speedy
administration of justice, especially that such delegation is upon a cabinet
secretary - his own alter ego.
Nonetheless, the power of the President to delegate is not without limits. No
less than the Constitution provides for restrictions. Justice Jose P. Laurel, in his
ponencia in Villena, makes this clear:
x x x There are certain presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the suspension of fundamental
freedoms, or at least call for the supersedence of executive prerogatives over
those exercised by co-equal branches of government. The declaration of martial
law, the suspension of the writ of habeas corpus, and the exercise of the
pardoning power, notwithstanding the judicial determination of guilt of the
accused, all fall within this special class that demands the exclusive exercise by
the President of the constitutionally vested power. The list is by no means
 CONSTITUTIONAL LAW REVIEW:
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exclusive, but there must be a showing that the executive power in question is
of similar gravitasand exceptional import.
In the case at bar, the power of the President to review the Decision of the
Secretary of Justice dealing with the preliminary investigation of cases cannot
be considered as falling within the same exceptional class which cannot be
delegated. Besides, the President has not fully abdicated his power of control
as Memorandum Circular No. 58 allows an appeal if the imposable penalty is
reclusion perpetuaor higher. Certainly, it would be unreasonable to impose
upon the President the task of reviewing all preliminary investigations decided
by the Secretary of Justice. To do so will unduly hamper the other important
duties of the President by having to scrutinize each and every decision of the
Secretary of Justice notwithstanding the latter's expertise in said matter.
Next question
What are the acts which the President cannot delegate and must do
personally? These are some but the list is NOT EXCLUSIVE:
1. Declaration of martial law;
2. Suspension of the privilege of the writ of habeas corpus;
3. The grant of pardoning powers; and
4. Any other acts of similar gravity or of importance.
The said acts cannot be delegated under the principle of qualified
agency. It must be personally done and performed by the President. So
to sign a bill into a law, can it be done by the executive secretary? The
answer is YES. It happens a lot of time that the President does not sign
the bill to become a law and usually it is the executive secretary who
signs for the President. It has been the practice ever since. That is
allowable because such act is not required by the law to be personally
done by the President.
In entering into a treaty or executive agreement, can it be delegated by
the President? That is usually done. But if say, during the time of war,
the declaration to surrender must be done by the President personally.
But if it were less than that and not of similar importance, then any
member of the Cabinet can do it provided that it is within the authority of
such agency. Entering into executive agreement in trade or business is
usually signed by the Secretary of the DTI.
GENERAL SUPERVISION
General supervision over the local government units (LGU) and
Autonomous Regions. There is nothing much in here. The only
discussion perhaps here was on the onset of the creation of the
autonomous regions both in the Cordilleras and Muslim Mindanao.
There was an issue before with the increase of autonomy granted to the
LGU under the Constitution and as well as under the Local Government
Code.
The question raised is, are the LGUs especially the Autonomous
Regions still subject to the supervision of the National Government? The
answer is YES, they are. They are still made accountable to the National
Government. There are still aspects of governance which they cannot do
because the same is vested with the National Government. The officials
are also accountable and both the disciplining and investigating authority
are still with the National officers.
In the case of JOSON vs. TORRES, the question here was on the power
of the DILG to discipline elective officials. So it depends upon the
position. Most of the chief executive officials of the LGUs are
accountable to the President. Under the Local Government Code in
relation to the authority of the President to investigate and discipline
local elective officials, there are two distinct provisions. The DILG
Secretary is the investigating authority and the President is the
disciplining authority. Can the DILG Secretary exercise the disciplining
authority? The SC said YES. The power to investigate is lodged with
him. That is a direct exercise of power. But the power to discipline is
exercised by him as the alter ego of the President.
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Under the qualified political agency, the decision of the DILG Secretary
to discipline local elective officials is based on the authority as delegated
to him while the power to investigate is a direct exercise of authority
granted to him by law.
POWER OF APPOINTMENT
The discussion under the power appointment is that, it is purely
executive and discretionary. Even if say, it is exercised by Congress,
does the Speaker of the House have appointing authority? The answer
is YES. He appoints officials in Congress like the sergeant at arms and
other organic personnel who are not connected with the members of
Congress. And that power to appoint exercised by him is not legislative
in nature but executive.
Say in the judiciary, the Supreme Court appoints a Court Administrator.
That is executive and not judicial in nature because there is no
settlement of dispute there. By nature, the power of appointing officials is
executive and discretionary. It is also discretionary, more so in the case
of the President. Congress may provide for the qualifications in law to
allow only the appointment of a certain individuals to a particular
position. The qualifications imposed by Congress in terms of legislatio
must not be so restrictive that the power of the President to appoint
would also be restricted. The limitation brought about by the qualification
must be that is reasonable such that there would be several individuals
who would qualify for the position. If the qualification imposed by the
Congress is very restrictive such that only one person will qualify, then
that would be considered as unconstitutional. The reason is that it will
destroy the very nature of the exercise of the power to appoint, it being
discretionary.
The case of FLORES vs. DRILON involves the appointment of the first
chairperson for the Subic Bay Metropolitan Authority (SBMA). That law
provided that the first chairperson of the SBMA must be the Mayor of
Olongapo. It appears that only the incumbent Mayor of Olangapo will
qualify. In this case, the SC ruled that the provision with respect to the
qualifications of the chairperson was invalid and unconstitutional
because it was violative of the nature of the power to appoint. Of course,
other legal grounds were found e.g. under the Civil Service provisions,
all appointive or elective officials cannot hold any other office while they
are performing their functions.
With the consent of the Commission on Appointment, the personalities
mentioned here are found in the first sentence of Article VII, Section 16.
All said provisions would require the confirmation of the CA.
The case of MANOLO vs. SITON involves the case of a PNP official.
The SC said that PNP personnel are not similar from that of the position
in the Armed Forces of the Philippines. The PNP is a civilian force
created or established as mandated by the Constitution; hence, they do
not belong to the AFP. Similar is the case of Soriano, which involves a
position of a coastguard. The SC held that a coastguard is not similar in
position with that of the Philippine Navy. The Coastguard is a civilian
office and not part of the Philippine Navy.
In the case of MATIBAG vs. BENIPAYO, one of the issues would be on
the rule on reappointment for those positions requiring the confirmation
of the CA but was by-passed and that they need to be reappointed. [The
appointment was not confirmed and was not acted upon by the CA.]
First question is whether a by-passed nominee could be reappointed.
Technically, if the position requires CA confirmation, there is no issue of
appointment, initially. What is issued is technically a nomination from the
President. The nomination is sent to the CA for action and only if the CA
has acted affirmatively by confirming the nomination would there be an
appointment be issued.
So if the nomination is sent to the CA but the CA has by-passed it, can
the President re-nominate that same person? the answer is YES, he
can. It would be different if the CA rejected the nomination. In that case,
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by reason of the rejection of the CA, that person cannot be reappointed branch."Thus, the President may even appoint in an acting capacity a person
or re-nominated for the same position. But if a person is rejected for that not yet in the government service, as long as the President deems that person
particular position, it doesnt mean that he could no longer be re- competent.
appointed or re-nominated for the other position.
[Dumagan, Menchie/ Pangandaman, Alamiah]
If the appointment is by-passed there is no limit as to the reappointment
or re-nomination. As I mentioned before, there is this bill now being
proposed in Congress to limit the number of times that a person can be
reappointed or re-nominated for three times only. That if the nomination
is by-passed on three occasions, then that same person could no longer
be nominated. But that is still a bill. As of the moment, there is no
limitation on the number of times that one could be re-appointed or re-
nominated if said appointment is by-passed.

AD INTERIM APPOINTMENTS

Then the case of Pimentel vs. Ermita speaks of the question of the ad
interim appointment. Now ad interim appointment as distinguished from
a regular appointment is that the former is technically used only for an
appointment made while the Congress is NOT in session that requires
CA confirmation.

So the two operative phrases in an ad interim appointment: first, the

Congress is not in session. Second, the appointment requires CA
confirmation. If the appointment does not require CA confirmation and
Congress is not in session, that is not an ad interim appointment. That is
a regular appointment. In the case of Pimentel, the question there is
whether or not the President can make an acting appointment on a
position which requires CA confirmation. When an appointment is made
ordinarily for a position requiring CA confirmation, the nomination is sent
to the CA for action. The President shall wait if the CA will reject,
approve or by-pass it. The SC said that is allowed under EO 292. The
President can make temporary appointments or designations in the
executive positions if there is a continued vacancy, or if vacancy would
affect public service. It is not different from appointment in an acting
capacity of a person who sits as the Secretary of the DOJ. If it was made
in an acting capacity, it does not require that the said appointment be
submitted to the CA for confirmation because that is not the usual
appointment. Could that be used as a mode to skirt the process where
the CA should confirm? The SC said yes. But not until if there is grave
abuse of discretion. The power of discretion is still with the President as
to what appointment to make in an acting capacity. Another issue raised
there is whether the assistant secretary should automatically be
appointed to the position of a secretary. The SC No. Again, the power of
discretion is vested with the President to appoint in case there occurs a
vacancy in the cabinet.

The essence of an appointment in an acting capacity is its temporary nature. It

is a stop-gap measure intended to fill an office for a limited time until the
appointment of a permanent occupant to the office. In case of vacancy in an
office occupied by an alter egoof the President, such as the office of a
department secretary, the President must necessarily appoint an alter egoof her
choice as acting secretary before the permanent appointee of her choice could
assume office.

Congress, through a law, cannot impose on the President the obligation to

appoint automatically the undersecretary as her temporary alter ego. An alter
ego, whether temporary or permanent, holds a position of great trust and
confidence. Congress, in the guise of prescribing qualifications to an office,
cannot impose on the President who her alter ego should be.
The office of a department secretary may become vacant while Congress is in
session. Since a department secretary is the alter egoof the President, the
acting appointee to the office must necessarily have the Presidents confidence.
Thus, by the very nature of the office of a department secretary, the President
must appoint in an acting capacity a person of her choice even while Congress
is in session. That person may or may not be the permanent appointee, but
practical reasons may make it expedient that the acting appointee will also be
the permanent appointee.
The law expressly allows the President to make such acting appointment.
Section 17, Chapter 5, Title I, Book III of EO 292 states that "[t]he President
may temporarily designate an officer already in the government service or any
other competent person to perform the functions of an office in the executive

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People often say that motivation doesn't last. Well, neither does
bathing - that's why we recommend it daily.
~Zig Ziglar
July 12, 2011
The limitations of the appointing power of the President to appoint the
heads of executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him
in the Constitution are provided in Secs. 13-15, Art VII.
Section 13, Art VII is reiterated in the case of
ENRIQUE U. BETOY vs. BOD, NPC
Oct 4, 2011
Facts: Petitioners Enrique U. Betoy, together with thousands of his co-
employees from the NPC were terminated because of the privatization of
the said corporation. Petitioners then question the constitutionality of the
Composition of Sections 11 (TRANSCO Board of Directors) and 48
(National Power Board of Directors) of the Electric Power Industry Reform
Act of 2001 (EPIRA) for violating Section 13, Article VII of the 1987
Constitution.
Sec. 13. The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. They
shall not, during said tenure, directly or indirectly practice any other
profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.
Held: The Supreme Court finds that the same is without merit. The
prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution must not, however, be construed
as applying to posts occupied by the Executive officials specified therein
without additional compensation in an ex-officio capacity as provided by law
and as required by the primary functions of said officials' office. The reason
is that these posts do not comprise "any other office" within the
contemplation of the constitutional prohibition but are properly an imposition
of additional duties and functions on said officials. To characterize these
posts otherwise would lead to absurd consequences, among which are:
The President of the Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115 (December 24, 1986). Neither
can the Vice-President, the Executive Secretary, and the Secretaries of
National Defence, Justice, Labor and Employment and Local Government
sit in this Council, which would then have no reason to exist for lack of a
chairperson and members. The respective undersecretaries and assistant
secretaries, would also be prohibited.
The designation of the members of the Cabinet to form the NPB does not
violate the prohibition contained in our Constitution as the privatization and
restructuring of the electric power industry involves the close coordination
and policy determination of various government agencies. Section 2 of the
EPIRA clearly shows that the policy toward privatization would involve
financial, budgetary and environmental concerns as well as coordination
with local government units.
The production and supply of energy is undoubtedly one of national interest
and is a basic commodity expected by the people. This Court, therefore,
finds the designation of the respective members of the Cabinet, as ex-
officiomembers of the NPB, valid.
Hence, Congress specifically intended that the position of member of the
Board of NPB shall be ex-officio or automatically attached to the respective
offices of the members composing the board. It is clear from the wordings
of the law that it was the intention of Congress that the subject posts will be
adjunct to the respective offices of the official designated to such posts.
However, these concerned officials should not receive any additional
compensation pursuant to their designation and or per diems and
allowances since they are prohibited from collecting additional
compensation by the Constitution.
Section 14 of the EPIRA provides: Board Per Diems and Allowances.
The members of the Board shall receive per diem for each regular or
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special meeting of the board actually attended by them and, upon approval
of the Secretary of the Department of Finance, such other allowances as
the Board may prescribe.
Considering the constitutional prohibition, it is clear that such emoluments
or additional compensation to be received by the members of the NPB do
not apply and should not be received by those covered by the constitutional
prohibition, i.e., the Cabinet secretaries. It is to be noted that three of the
members of the NPB are to be appointed by the President, who would be
representing the interests of those in Luzon, Visayas, and Mindanao, who
may be entitled to such honorarium or allowance if they do not fall within
the constitutional prohibition.
Section 14, Art VII. An appointment of an Acting President is only temporary
subject to revocation of the incoming President.
Section 15, Art VII
Two months immediately before the next presidential elections and up to
the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or
endanger public safety.
Sir mentioned an old case, Aytona vs. Castillo. In this case former
President Garcia made some midnight appointments. The SC ruled that
said appointments were prohibited not only because of the numerous
appointments made but more importantly because the appointments
and taking of oath were hurried before the end of his term.
But the 1987 Constitution is very specific with the prohibited period.
The President is given allowance: only temporary appointments when
the position affects public safety.
Question: does the prohibition on the President [in making midnight
appointments] apply to Local Chief Executives? No. As long as Civil
Service Law was observed, there was no such appointment ban in the
LGU. This is further illustrated in De Rama vs. CA.
Question: Can the incumbent President appoint a Chief Justice during
the period covered by Section 15, Art VII?
In In re Valenzuela, the court ruled that the Judicial Department is
covered by the subject prohibition in Section 15, Art VII. But in DE
CASTRO vs. JBC, the SC overturned the doctrine laid down in In re
Valenzuela. Applying statutory construction, the Judiciary is not
covered by Section 15, Art VII; otherwise the same should have been
incorporated in the midnight appointment provision if it were the
intention of the framers of the Constitution.
Sec 4. The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three,
five, or seven Members. Any vacancy shall be filled within ninety days from the
occurrence thereof.
Question: Which of these two sections, Sec 15, Art VII or Sec. 4 (1) Art
VIII, prevails? The latter provision (vacancy must be filled up) must
prevail over the former provision.
In summary, Sections 14-16 Art VII refer to the delegation of the
appointing authority of the President subject to the confirmation of CA.
It is not applicable to the Judiciary. The intent is to shield the judiciary
from the processes of the executive.
Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could
have explicitly done so. They could not have ignored the meticulous ordering of
the provisions. They would have easily and surely written the prohibition made
explicit in Section 15, Article VII as being equally applicable to the appointment
of Members of the Supreme Court in Article VIII itself, most likely in Section 4
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(1), Article VIII. That such specification was not done only reveals that the (4) there is a waiver of the right to appeal.
prohibition against the President or Acting President making appointments within
two months before the next presidential elections and up to the end of the Only then can the conviction be considered to be final and thereafter the
Presidents or Acting Presidents term does not refer to the Members of the
President can now grant clemency. There is no limitation as to time, as
Supreme Court.
to the character of the beneficiary, as to the nature of the offense
committed for which he has been convicted whether its heinous or less
Can the Judicial and Bar Council be required by mandamus to submit a
grave. That doesnt matter.
list of nominees to the President? Now, theres no problem with
vacancies in the lower collegiate courts and lower courts because the
Theres a special provision, however, which requires the concurrence of
period for the President to fill will commence to run once the list is
the COMELEC for those who have been convicted by final judgment of
submitted to him unlike in the Supreme Court where the 90-day period
any election related offense. Any executive clemency involving these
will commence to run upon the occurrence of the vacancy. So will
offenses must have the favorable recommendation of the COMELEC.
mandamus lie? The Supreme Court said, in this case, that it will not
because the vacancy did not occur as yet. However, weve mentioned
Now with respect to amnesty, majority vote of Congress is required. This
that if the vacancy already occurred or is already existing, then it is
a shared power of the Executive and the Legislative because the act of
mandatory for the JBC to submit the list to the President to fill up the
amnesty is considered to be an act of the sovereignty. It causes oblivion
vacancy. The JBC cannot limit the period by refusing, as of the moment,
to any act which by law should have been penalized. In the grant of
to submit a list of nominees to the President from which he shall make
amnesty there is no requirement of final judgment for the simple reason
an appointment.
that, by nature, an amnesty proclamation should benefit all covered
individuals regardless of the stage of the prosecution whether one has
So before the occurrence of the vacancy, the task of the JBC to submit a
not yet been arrested, already arrested, on trial, not yet on trial, detained
list of nominees for the vacancy of the Supreme Court is discretionary.
pending trial or even those who have been convicted by final judgment.
But if the vacancy has already occurred, the JBC must have to submit a
If they will fall within the amnesty proclamation, they could claim the
list immediately within reasonable time so as not diminish the 90-day
benefit of the amnesty.
period. Well, as of today when was Chief Justice Corona impeached?
End of May? Assuming end of May. So the end of August would be the
Then, the clemency power of the President is available in administrative
90th day. Now the JBC is still processing the application. The President
cases in the executive branch. This was the ruling in the case of Llamas
is not worried that his 90-day period has been eaten up substantially
vs. Executive Secretary. The justification made by the Supreme Court
simply because he already has a choice. A lot of people are wondering,
that it should also be granted in administrative cases because it is not
who he appoint would. We have been kidding in the faculty that ..Oh, we
included among the excepted case provided by the Constitution, to wit:
will nominate each other because, anyway, most of us have been
1. it is not allowed in impeachment cases;
practicing law for 15 years. Sad if the choice of the President will not be
2. it is not also allowed to get the amnesty without the
included by the JBC in the list of nominees. Then the question is
Congressional approval.
whether or not the President can refuse the list and ask the JBC to
3. It cannot also be extended to those convicted for violations of
submit more names. What if the JBC will not include most Senior
Election laws without the favorable recommendation of the
Associate Justice Antonio Carpio in the list? And will include Leila de
COMELEC.
Lima. Ok.
So those are the specific exceptions, not including administrative cases.
So before the 90-day period ends, the task of the JBC is supposed to
Secondly, the Supreme Court justified it by saying that if it can be
process the application so that when the such period arrives, it is now
granted to more heinous or serious offenses, murder why could not it
ready to submit the list. But once the vacancy is existing already, then it
be granted to less serious offenses like administrative violations? But the
is mandatory for the JBC to submit the list to the President
Supreme Court said that it can only be applied in administrative cases
immediatelythe failure of which can be subject to a writ of mandamus.
involving officials in the executive branch. It cannot be extended to
So thats the case of De Castro vs. JBC.
officials in the other branches of the government. For example, if a
member of Congress is found liable by his peers for disorderly behavior
Temporary resignations. That is one of the justifications why the
and penalized by either suspension or expulsion, as the case maybe, or
President can make acting appointments without submitting the
even less, the President of the Republic cannot grant clemency to that
appointment to the CA for confirmation. And for so long as the
member of Congress. This is the same with the Judiciary. If the
Presidents appointing authority in an acting capacity is not abused,
Supreme Court has found any court personnel administratively liable
meaning, it is not made to avoid the confirmatory power of the CA, such
administrative, the President of the Republic cannot accordingly grant
appointments in an acting capacity are totally allowed.
clemency.
EXECUTIVE CLEMENCY
Llamas vs. Executive Secretary
Pardon Applicable to Administrative Cases
Parts of the power of the President under Article VII Section 19 are by
nature executive and discretionary. They are also considered final and Ocampo III was the governor of Tarlac Province. Llamas together with
unappealable. For so long as there is no violation of any constitutional some other complainants filed an administrative case against Ocampo III
precondition or requirement, the grant of Presidential pardon or for alleged acts constituting graft and corruption. Ocampo III was found
presidential clemency is supposed to be final and unappealable. That is guilty. He was suspended for office for 90 days hence his vice governor,
the essence of the ruling in Drilon vs CA. Llamas, assumed office. In not less than 30 days however, Ocampo III
returned with an AO showing that he was pardoned hence he can resume
office without completing the 90 day suspension imposed upon him.
Now the first requirement for the President to validly exercise his
clemency power is that there must have to be a conviction by final ISSUE: Whether or not pardon is applicable to administrative cases.
judgment. That conviction by final judgment is a reiteration of the original
draft in the 1973 Constitution. Before, we follow practically the pardoning HELD: The SC held that pardon is applicable to Administrative cases. The
power of the US President from the Jones Law down to the 1935 SC does not clearly see any valid and convincing reason why the
Constitution (i.e. that once an act is committed, even if there is no President cannot grant executive clemency in administrative cases. It is a
conviction by final judgment yet, an accused can be pardoned by the considered view that if the President can grant reprieves, commutations
and pardons, and remit fines and forfeitures in criminal cases, with much
President). So there is conviction by final judgment if:
more reason can she grant executive clemency in administrative cases,
(1) there is no appeal taken; which are clearly less serious than criminal offenses.
(2) the accused has applied for probation;
(3) the accused ha already started serving his sentence; Forms of Executive Clemency
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1. Reprieves
2. Commutation
3. Pardon
And you all very know the distinction between:
1. Pardon and Probation
2. Pardon and Parole
3. Pardon and amnesty
What about probation or placing a person or convict under parole? Are
these included under the executive power of the President?
Technically, they are not. But by reason of the fact that, by nature, once
a convict is released at least temporarily from detention, it will also be
considered a part of executive clemency because, despite granted by
the courts, it is nevertheless with the favorable recommendation of the
Probation and Parole Board (under the DOJ). With all the more reason
that under the Indeterminate Sentence Law if an accused has served for
good behavior the minimum sentence, he can be recommended for
release under parole.
COMMANDER-IN-CHIEF POWERS OF THE PRESIDENT
Section 18, Article VII
Section 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines or any part
thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus or the
extension thereof, and must promulgate its decision thereon within thirty
days from its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ of habeas corpus.
The suspension of the privilege of the writ of habeas corpus shall apply
only to persons judicially charged for rebellion or offenses inherent in, or
directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any
person thus arrested or detained shall be judicially charged within three
days, otherwise he shall be released.
Section 18 refers to the military powers of the President. There are
basically three powers that the President can exercise there:
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1. call out the Armed Forces to suppress lawless violence;
2. to declare martial law in the country or any part thereof
(because there is invasion or rebellion) and public safety
requires it or;
3. suspend the privilege of the writ of habeas corpus on the
same ground: invasion, rebellion and when public safety
requires it.
So from the wordings of the Constitution, it would come to us that the
exercise of the emergency or military powers of the President is actually
an extension of his police powers because of the public safety
requirement. But this is in the extreme.
And as your books have been annotated Section 18 is the longest
singular provision in the 1987 Constitution because of the experiences of
the past. In fact, it is said that the Constitution of a country is not
actually a document which grants power. Rather it is a document by
which the powers of the government are limited, not defined but are
limited. The provisions of the Constitution are generally, products of the
countrys political evolution.
Now, for the President to call out the armed forces to suppress lawless
violence or invasion of a territory, there is no other requirement. It is just
again part of his police power to call out the armed forces. There is not
much requirement as to that. That was part of the ruling in the case of
David vs. Macapagal-Arroyo. When the President in that case
declared a state of emergency the Supreme Court said that
proclamation did not give the State additional.
David vs. Arroyo
GR No. 171396 May 3, 2006
Facts: As the nation celebrated EDSAs 20th anniversary, President Arroyo
issued PP 1017 declaring a state of national emergency and thereby
commanded the AFP and PNP to immediately carry out necessary and
appropriate actions and measures to suppress and prevent acts of
terrorism and lawless violence. This declaration led to cancellation of all
programs and activities related to the EDSA People Power I celebration.
Rally permits were revoked and warrantless arrests and take-over of
facilities, including the media, were implemented. Assemblies and rallyists
were dispersed. Along with the dispersal, petitioner was arrested without
warrant.A week after PP 1017, PP1021 was issued lifting the state of
emergency.
Issue: Whether or not there is an actual controversy or case subject for
judicial review.
Whether or not there petition is with legal standing particularly on his
qualification to sue.
Ratio Decidendi: The Solicitor Generals refute that the case has been
moot and academic was not upheld by the Court. According to the
Supreme Court, courts will decide cases otherwise found moot and
academic if: there is grave Constitutional violation, the situations
exceptional character and paramount public interest involved, issue raised
requires formulation of controlling principles to guide the bench, bar and
public, and lastly it is capable of repetition yet evading review. Petitioner
was found to be of legal standing on the grounds that his personal rights
were involved. The petitioner qualifies under the direct injury test. The
personal and substantial interest in the case such that he has sustained,
or will sustain direct injury qualifies him to impugn the validity of the
statute. To wit some of these direct injuries he sustained are the illegal
arrest and unlawful search he experienced. Given this fact, the court
entertained his petition as he has adequately shown that he entitled to
judicial protection. However, the court does not liberally declare statutes
as invalid although they may be abused and misabused and may afford
an opportunity for abuse in the manner of application. The validity of a
statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired, not from its effects in a particular
case. The Court ruled that the assailed PP 1017 is unconstitutional insofar
as it grants President Arroyo the authority to promulgate decrees, taking
into consideration that legislative power is vested only in congress. The
Court partly grants the petitions. PP 1017 is constitutional insofar as it
allows the President to call the AFP to prevent or suppress lawless
violence. However, commanding the AFP to enforce laws not related to
lawless violence are declared unconstitutional. Such proclamation does
not also authorize the President to take over privately-owned public
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utilities or business affected with public interest without prior legislation.
General Order No. 5 is constitutional as it is a standard on how the AFP
and PNP would implement PP1017, but portion where acts of terrorism
has not been defined and punishable by congress is held unconstitutional.
Furthermore, the following acts of the government were held
unconstitutional: warrantless arrest of the petitioner, dispersal and
warrantless arrests of rallyists in the absence of proof that said petitioners
were committing acts constituting lawless violence, invasion or rebellion,
or violating BP 800; imposition of media standards and any form of prior
restraint on the press, as well as warrantless search of the Tribune Offices
and whimsical seizure of its articles for publication and other materials.
The third is the suspension of the privilege of writ of habeas corpus
when the conditions exist (i.e. public safety requires it, there is existence
of rebellion). The Executive is technically allowed to extend the period of
suspension without having to violate Article 125 of the Revised Penal
Code on arbitrary detention. Article 125 defines a valid detention for how
many hours? 12, 18 and 36 depending on the gravity of the offense.
Within those hours they should have been charged or released, if there
is no charge; otherwise, the person detaining them will be liable for
arbitrary detention.
Now, the writ of habeas corpus is not affected because it will still be
issued by the court if there is sufficient petition in form and substance
having been filed. However, the persons arrested for crimes related to
invasion or rebellion they can be detained without charge for a maximum
of 72 hours. If they are not charged within that number of hours, they
should be released; otherwise, the person detaining them would still be
liable for arbitrary detention for not having released them within the 72-
hour period without any sufficient charges.
To repeat, the persons covered by the suspended are those who commit
a crime inherent or related to invasion or committed rebellion. All other
offenses not included in those two will not be covered by the suspension
of the privilege.
Now when martial law is declared, the Constitution says that it will not
affect all the rest of society. First, the Bill of Rights will still be effective.
The other institutions of government will not be affected especially
Congress and the courts. The military courts shall have no jurisdiction
over civilian offenses. Well, that is ideal. But if it were to be if what is
referred to is actual theater of war, you dont expect the civilian
government to function.
Martial law is declared so that the State can act on the invasion or
rebellion. All the other institutions of government should still function.
Jurisdiction should still remain where it should be under the law simply
because a Constitution should not lose its effect even if there is a
declaration of martial law.
Now, the President is supposed to make a report to Congress within a
period of 48 upon declaration of martial law and suspension of the
privilege of the writ. Congress will assess whether it will remove the
declaration or suspension. It just happened a few years back when the
province of Maguindanao was placed under martial law and because of
which Congress had to be in joint session as required by the
Constitution to receive the report of the President. At that time the
Executive Secretary, the DOJ Secretary and the heads of the major
services of the military were there to make recommendations to
convince Congress that the declaration should not be revoked.
This was not acted upon by Congress simply because this was
overtaken by events. GMA lifted the declaration even before Congress
decided. This was the first time that reportorial requirement in Article VII
Section 18 was made. Congress had to hurry up the drafting of the rules
because everybody wants to have his share of the so-called 15 minutes
of fame. They agreed that each would have, I think, something like 10
minutes subject to extension if granted by the presiding officer. The first
to ask, for historical purposes, is Senator Benigno Aquino because he is
surname starts with letter A.
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Ok, the declaration of martial law or the suspension of the privilege of
the writ of habeas corpus can lose its efficacy in four ways:
1. The president lifts it himself
2. Congress revokes it
3. Supreme Court modifies it or
4. by operation of law
The declaration of martial law or the suspension of the privilege of the
writ can be for any period, but the first period must not be more than 60
days. So it can be shorter than 60, or if there is a need to extend this,
the President can always ask Congress for extension.
So lets say before the duration or period, the president lifts it (like what
PGMA did), then it will still lose its efficacy even if the period has not yet
lapsed. Or when Congress revokes it when the President makes his
report, or when the Supreme Court modifies it.
In the case of Lansang vs. Garcia, the issue was whether or not the
declaration of martial law and the suspension of the privilege of the writ
is a justiciable or a political question.
Lansang vs. Garcia
Facts: In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party
of the Philippines was holding a public meeting at Plaza Miranda, Manila, for the
presentation of its candidates in the general elections scheduled for November 8,
1971, two hand grenades were thrown at the platform where said candidates and
other persons were. Eight persons were killed and many more injured.
Proclamation 889 was issued by the President suspending privilege of writ of
habeas corpus stating that there is a conspiracy of rebellion and insurrection in
order to forcibly seize political power. Petitions for writ of habeas corpus were
filed by persons (13) who have been arrested without a warrant.
It was stated that one of the safeguards of the proclamation was that it is to be
applied to persons caught in flagrante delicto. Incidentally, Proc. 889-A was
issued as an amendment, inserting the word actually staging. Proc. 889-B was
also issued lifting the suspension of privilege in 27 provinces, 3 sub-provinces
and 26 cities. Proc. 889-C was issued restoring the suspension in 13 provinces
and cities(mostly in Mindanao). Proc. 889-D further lifted the suspension in 7
provinces and 4 cities. Only 18 provinces and sub-provinces and 2 cities whose
privilege was suspended. Petitioners maintained that Proclamation No. 889 did
not declare the existence of actual "invasion insurrection or rebellion or imminent
danger thereof, however it became moot and academic since it was amended.
Petitioners further contend that public safety did not require the issuance of
proclamations stating: (a) that there is no rebellion; (b) that, prior to and at the
time of the suspension of the privilege, the Government was functioning normally,
as were the courts; (c) that no untoward incident, confirmatory of an alleged July-
August Plan, has actually taken place after August 21, 1971; (d) that the
President's alleged apprehension, because of said plan, is non-existent and
unjustified; and (e) that the Communist forces in the Philippines are too small and
weak to jeopardize public safety to such extent as to require the suspension of
the privilege of the writ of habeas corpus.
A resolution was issued by majority of the Court having tentatively arrived at a
consensus that it may inquire in order to satisfy itself of the existence of the
factual bases for the proclamations. Now the Court resolves after conclusive
decision reached by majority.
Issues:
(1) Whether or Not the authority to decide whether the exigency has arisen
requiring suspension (of the privilege of the writ of habeas corpus) belongs to the
President and his decision is final and conclusive upon the courts and upon all
other persons.
(2) Whether or Not public safety require the suspension of the privilege of the writ
of habeas corpus decreed in Proclamation No. 889-A.
Held: The President has authority however it is subject to judicial review. Two
conditions must concur for the valid exercise of the authority to suspend the
privilege to the writ (a) there must be "invasion, insurrection, or rebellion" or
"imminent danger thereof," and (b) "public safety" must require the suspension of
the privilege. President has three (3) courses of action: (a) to call out the armed
forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place
the Philippines or any part thereof under martial law. He had, already, called out
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the armed forces, proved inadequate. Of the two other alternatives, the
suspension of the privilege is the least harsh.
Petitioners contention that CPP-NPA has no ability, is negatived by the killing of 5
mayors, 20 barrio captains and 3 chiefs of police; that there were fourteen (14)
meaningful bombing incidents in the Greater Manila Area in 1970. CPP has
managed to infiltrate or establish and control nine major labor organizations; has
exploited the (11) major student or youth organizations; about thirty (30) mass
organizations actively advancing the CPP.
real, it was not for the Supreme Court to determine. What the Supreme
Court will determine whether or not there are sufficient factual bases to
declare martial law or suspend the privilege of the writ.
During that time what were the factual bases? Plaza Miranda bombing,
the failed ambush of JPE. Because if it were for real that he was really
ambushed, theres a 99 percent possibility that he will die. Because,
kinsa ba gud mo ambush nimo nga di ka patyon?

[Limbo-Cabuhat, Verna/ Belen, Gen]

Lansang vs. Garcia

Abandonment of the Doctrine Held in the Barcelon Case & the Montenegro Case
Due to the throwing of two hand grenades in a Liberal Party caucus in 1971
causing the death of 8 people, Marcos issued PP 889 which suspended the
privilege of the writ of habeas corpus. Marcos urged that there is a need to curtail
the growth of Maoist groups. Subsequently, Lansang et al were invited by the PC
headed by Garcia for interrogation and investigation. Lansang et al questioned
the validity of the suspension of the writ averring that the suspension does not
meet the constitutional requisites.

ISSUE: Whether or not the suspension is constitutional.

HELD: The doctrine established in Barcelon and Montenegro was subsequently

abandoned in this case where the SC declared that it had the power to inquire
into the factual basis of the suspension of the privilege of the writ of habeas
corpus by Marcos in Aug 1971 and to annul the same if no legal ground could be
established. Accordingly, hearings were conducted to receive evidence on this
matter, including two closed-door sessions in which relevant classified information
was divulged by the government to the members of the SC and 3 selected
lawyers of the petitioners. In the end, after satisfying itself that there was actually
a massive and systematic Communist-oriented campaign to overthrow the
government by force, as claimed by Marcos, the SC unanimously decided to
uphold the suspension of the privilege of the Writ of Habeas Corpus.

This is a side note. When Corona was impeached, JPE (Juan Ponce
Enrile) gave the longest speech actually. And for those of you from the
generation after martial law were all praises for the man. And there was
one student (already a lawyer) and young at that , shouted out in his
Facebook account how [he admired the man]. And I said we should
not forget his sins in the past. You know when a man is about to be put
in his grave, perhaps, there is a chance for him to redeem himself. But
you ask the martial law victims, theres no redeeming (value) even if JPE
ousted the Chief Justice who is corrupt. That is not enough to redeem
him from his sins of the past. Then I suggested to him, try to read first
about the man, what he has done before you praise him as if he were
Gods son.

So before and during the martial law years, declaration (of martial law)
or suspension is always a political question. It cannot be questioned no
matter what. Its for the President to exercise the power based on his
discretion and that is supposed to be a question which the Court cannot
inquire.

But the case of Lansang vs. Garcia, decided before martial law was
proclaimed, involves the suspension of the privilege of the writ of
habeas corpus. The Supreme Court said in that case that this is a
justiciable question. The courts can inquire whether the exercise of the
power was what is written in the Constitution.

Again, while this is justiciable now, the extent of the decision is whether
there is sufficient factual basis for such declaration or suspension.
Sufficiency is on the existence of facts not as to whether these facts are
true or not. Mostly, the decisions of the President are based on verified
reports from the intelligence community. We all know that there is
something wrong with intelligence when this is exercised by the
intelligence community. Perhaps, today because of the modernization
of technology there might be some reliability. But before the advent of
cellular phones all these high tech technologies, everything was based
on what the reports said. All of these were not very reliable. In fact one
of the stories at least prior to the declaration of martial law was the
ambush of JPE. That ambush was staged. Thats part of his sins of the
past. And because it happened, whether it was real or not, staged or for

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July 13, 2012
Never stop pedaling to power your dreams.
~Terri Guillemets
POWER OVER FOREIGN AFFAIRS
TREATY MAKING
ARTICLE VII, Section 21
Section 21. No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.
With respect to the so-called ratification of a treaty, we have the case of
Pimentel vs. Ople. This was a petition for Mandamus because Congress
(the Senate) would have wanted the President to submit the treaty. The
treaty was signed by the President but was not submitted to the Senate
for concurrence. The petitioner was of the impression that this was
necessary for ratification.
The SC clarified that there are four steps necessary for the ratification of
a treaty:
1. Negotiation stage;
2. Ratification of the specific provisions;
3. Signing of the document or the treaty itself; and
4. Ratification of the treaty which is in the form of
exchange of the signed treaties.
Both states must have to honor the validity of the treaty in order for it to
be binding upon both states. Nowhere in the said procedure would it
require Senate concurrence for ratification. The authority therefore of the
Senate is limited to concurrence but not necessarily to ratification. This
means that if the President would sign a treaty, the President cannot be
compelled by mandamus to submit the signed treaty to the Senate for
concurrence. If it is concurred, it is not even subject to mandamus that
the President should ratify the treaty by the exchange of documents. It is
still within the discretion of the President 1.) whether or not to sign the
treaty; and 2.) whether or not to refer the signed treaty to the Senate for
concurrence and determine even if so signed and concurred to
exchange the documents for ratification, the rationale being that it is part
of the discretionary powers of the President in relation to foreign affairs.
The President therefore cannot be compelled by any of those instances
to comply with a writ of Mandamus for purposes of having the treaty
signed and the treaty concurred or even if signed and concurred, to have
the treaty exchanged for ratification.
TREATY DISTINGUISHED FROM EXECUTIVE
AGREEMENT
The other matter with respect to treaty is the distinction with respect to
treaty and executive agreement. So while a treaty is usually of political
nature (it affects the state in a more or less permanent order), an
executive agreement establishes policies which are more or less
temporary.
DEPORTATION OF UNDESIRABLE ALIENS
It has always been an exception to the requirement that only the
Judiciary or the courts that can issue warrants of arrest in relation to any
person having been charged for a violation of any criminal statute. When
it comes to the arrest of an undesirable alien, it has always been an
accepted exception that once there is a determination that an alien is
undesirable, the Executive can issue a warrant for his arrest or his
immediate deportation. It does not require any act on the part of the
court because the power of the President to deport or order the
deportation of an undesirable alien is not based on a conviction for
violation of any criminal statute. Of course, violation of our penal statutes
may be a ground for deportation of an alien because by then he would
have been considered undesirable but the power to deport is not
grounded on a prior conviction. What the power requires is that for so
long as the interest of the State is at stake with the continued presence
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of the foreigner or alien, or that if his continued stay affects national
security or national interest, he could be declared as undesirable and
therefore be ordered deported. It should be distinguished however if a
person or alien is still to be proceeded in an action before the
appropriate office for the declaration of undesirability. Because if that
were to be the case, he can only be arrested on account of a judicially-
issued warrant because there has yet to be a determination of him being
undesirable.
LEGISLATION; POWER OVER APPROPRIATION
MEASURES
It is required under the Constitution that the President must submit a
budget of expenditures to Congress to be the basis of the Appropriations
Bill. We have already discussed the power of the President to veto the
provision or provisions in an appropriations bill. We follow the line-item
veto as a rule. While portions of an appropriations bill may be vetoed, if
the items are related, then the entire line must have to be vetoed. We
also discussed the applicability of the inappropriate provisions doctrine.
If the provisions in an appropriations bill does not conform to Section 25
(2) of Article VI, those provisions can be vetoed not because it is part of
the Presidents veto power per se but because these provisions are
considered inappropriate. They must not have to be included in an
appropriations bill.
In relation to the appropriations bill, there is also the prohibition on the
non-diminution of the appropriations for the Judiciary and the
Constitutional Commissions because of their so-called fiscal autonomy.
The Executive cannot diminish the budget of the Judiciary and the
Constitutional Commissions lower than its current levels. It can only
maintain the current levels or allow an increase as submitted by the SC
to the President and thereafter to the Congress. The Constitution also
requires that once these appropriations are approved by Congress, they
shall be released regularly.
EXECUTIVE IMPOUNDMENT
Now in this case of Civil Service Commission vs. Department of
Budget and Management this refers to an issue regarding an
issuance of DBM related to the power of the President under the
principle of executive impoundment. Under the principle of executive
impoundment, the President has the power not to allow the release of
appropriated sums of money from the national budget [because we all
know that in the preparation and thereafter approval of the national
budget the budget is not fully funded]. There is only a portion of that
which is funded in the national treasury but the rest is yet to be funded
from revenue sourcing based on appropriations bill itself. So whenever
there is an expenditure based on the appropriations bill, the President
has the power to allocate which items will be funded for now and those
later. Now, the DBM has issued a resolution in this case, a no-report no-
release policy. If you do not make a report of your previous
disbursements as allowed by the DBM, there will be no release of
additional money. The question here was that Is the Civil Service
Commission included in that no-report no-release policy? The SC said
NO because the CSC enjoys fiscal autonomy. The Constitution says that
once appropriated and approved, these appropriations shall be regularly
released to the Constitutional Commissions. This will also apply to the
Judiciary.
Now what if the government has really no money, can the CSC or the
Constitutional Commissions or the Judiciary insist? Of course it cannot.
But once the funds are available they should have preference on the
release over the other offices or department of the government because
of their so-called fiscal autonomy.
In the Judiciary, theres an additional provision with respect to fiscal
autonomy: that their appropriations cannot be diminished. This provision,
however, does not apply to Constitutional Commissions. The budget of
the Constitutional Commissions would depend largely on their
requirement for expenditure. Good example would be the COMELEC.
Elections are had every three years. So in the non-election years, you
would not expect that the budget of the COMELEC would be as high as
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that during election year. Because there is not much activity in that
office, only the usual personnel services, salaries, wages and benefits
would be the ones funded. But of course if the election is forthcoming,
the budget is supposed to increase because of additional expenditures
for the conduct of elections from hardware paraphernalia to the
additional benefits of those who serve during the elections. These must
have to be funded. So their budget should not be treated similarly with
the Judiciary, that the same cannot be diminished because COMELECs
requirements would depend on their actual expenditure for a given year.
IMMUNITY FROM SUITS
The President enjoys several forms of immunity. The first that would
come to mind would be the immunity of the president under the Concept
or Doctrine of State Immunity from Suit. If a public officer is sued in his
official capacity and ultimate liability shall rest upon the State, and if the
President is made defendant in a civil case, the President can claim
immunity under the State immunity doctrine, provided that he be
performing official functions without any of those qualifying
circumstances such as grave abuse of discretion and the like. He can
claim immunity under that principle.
Also as head of state, the President outside the Philippines can claim
immunity being the head of mission. If he is the head of mission under
the 1961 Vienna Convention of Diplomatic Immunity, the President is
supposed to enjoy absolute immunity personal as well as official acts
of the State are covered. He cannot be placed under application of the
laws of the foreign country.
And the third kind of immunity the President enjoys here in our
jurisdiction is under the Concept of Impeachable Officers. We all know
that impeachable officers are immune from any kind of case with which
will effectively remove them from office. They must have to be
impeached first before any case would prosper. If a case filed against
the sitting President is one which will effectively remove him from office,
then he could claim immunity, being an impeachable officer. So you
must impeach him first before he could be sued or be removed from
office.
The last kind (the usual) applicable in all jurisdictions would be that the
President must be immune to suit while sitting as President. It is under
the same concept and principle and by analogy of the State being
immune from any suit. If the President is not immune from suit, there
might be a hesitation on his part to act immediately as chief executive
officer of the country because of the fear that he may be subjected to
any suit later on. So while sitting as a President, he is supposed to be
immune from any and all kinds of cases. In the Philippines, the principle
is that regardless of when the cause of action has come to being or has
existed, provided that the President is still sitting as President, he is
immune from any kind of suit regardless of whether the suit would
remove him from office.
In the cases that we have encountered involving the Office of the
President, the respondent is the Office of the President and not the
President himself. In the case of People vs. Beltran and Soliven, the
SC had said that the sitting President is immune from any kind of case.
However, that immunity is claimable only by the sitting President. If you
remember in that case, the accused Beltran et al. claimed immunity for
the President arguing that if this case for libel against them will prosper
not only will it have a chilling effect on the freedom of speech of the
media, it will also open the President to any counterclaim thereby losing
her immunity. The SC said it is her immunity, it is her privilege, it is for
her to claim. It cannot be claimed by anybody else.
JUDICIAL DEPARTMENT
COMPOSITION
ART. VIII SEC. 4. - (1) The Supreme Court shall be composed of a Chief Justice
and fourteen Associate Justices. It may sit en banc or in its discretion, in division
of three, five, or seven Members. Any vacancy shall be filled within ninety days
from the occurrence thereof.
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(2) All cases involving the constitutionality of a treaty, international or executive
agreement, or law, which shall be heard by the Supreme Court en banc, and all
other cases which under the Rules of Court are required to be heard en banc,
including those involving the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions, ordinances, and other
regulations, shall be decided with the concurrence of a majority of the Members
who actually took part in the deliberations on the issues in the case and voted
thereon.
(3) Cases or matters heard by a division shall be decided or resolved with the
concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon, and in no case without
the concurrence of at least three of such Members. When the required number is
not obtained, the case shall be decided en banc: Provided, that no doctrine or
principle of law laid down by the court in a decision rendered en banc or in
division may be modified or reversed except by the court sitting en banc.
In the old resolution of the SC dated February 7, 1989, which took effect
on March 1, 1989, the SC in Circular 2-89 reiterated and emphasized
the principle that there is only one Supreme Court. Even if the SC is
sitting in divisions of five members as of the moment because it could sit
in divisions of 3, 5 or 7 members, theres still only one SC. Now there
are three divisions consisting of five members each. There is only one
SC and a division decision is still considered a decision of the entire SC.
Circular 2-89 emphasizes the principle by stating that the en banc court
is not a review court of the division of the SC.
A case which is being handled by the division can be referred to the
court en banc provided:
1.) that there has been no decision or resolution by the division;
2.) majority of the division has referred the case for decision or
resolution to the court en banc; and
3.) the court en banc by majority has accepted the referral.
Only in those instances that a division case may be referred to the SC
en banc because again the SC en banc is not a review/appellate court of
the division.
CIRCULAR 2-98, SEC. 4. At any time after a Division takes cognizance
of a case and before a judgment or resolutions of a Division may refer
the case en consulta to the Court en banc which, after consideration of
the reasons of the Division for such referral may return the case to the
Division or accept the case for decision or resolution.
SEC. 5. A resolution of the Division denying a party's motion for referral
to the Court en banc of any Division case, shall be final and not
appealable to the Court en banc.
Now in what cases shall the SC decide en banc?
1.) On constitutional issues or cases. This must have to be
decided by the SC en banc (e.g. when there is a petition on
the sufficiency of factual basis on the declaration of Martial
Law or suspension of the privilege of the writ of habeas
corpus. These are en banc petitions).
2.) When the division vote is not met, the case may be referred
to the SC en banc;
3.) When there is a reversal of the decision of the court by
division or by the court en banc in a subsequent case, the
reversal must have to be that of the court en banc;
4.) When there is administrative case involving disbarment,
dismissal or if the suspension is for more than one year or the
fine is more than 10,000 pesos. The decision of the court
must have to be handed down by the court en banc. If the
decision in these administrative cases involves judges,
justices of the lower collegiate courts or lawyers will be less
than four (mentioned above), then the decision may be validly
rendered by a division.
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Now in this case of City of Tagaytay vs. Guerrero this reiterates the
rule that a decision of the division or by the court en banc must have to
be reversed by the court en banc. Second is the principle on case law,
i.e., that the decision of the case is the law between the parties. What
happened in this case was there was a foreclosure sale for failure to pay
real estate taxes, real property taxes. The City of Tagaytay won, which
filed a petition for the issuance of title in its favor. When the decision of
the RTC was rendered, the RTC granted the petition all the way to the
Court of Appeals but the SC reversed the decisions of the lower courts
on the ground that the foreclosure or the public auction sale based on
the tax delinquency was not valid because the City of Tagaytay had no
authority over the lands, the lands in question being situated in Batangas
and not in Tagaytay. So all the proceedings from the imposition of the
tax to the delinquency to the public auction sale and all the rest were
nullified by the SC.
In another case, there was a petition involving the declaration of nullity of
an auction sale. The RTC decided that the foreclosure sale is invalid
again based on the same reasoning as the Tagaytay case, i.e., that the
lands in question were not within the City of Tagaytay. The City of
Tagaytay appealed to the SC wanting the SC to declare that the
properties were actually in Tagaytay and not in Talisay, Batangas. So
the SC said when the first decision was rendered it already became final
and executory. It is now the rule between the parties.
APPOINTMENT AND QUALIFICATIONS
With respect to the SC, the appointment shall be made by the President
within 90 days from the occurrence of the vacancy, not from the
submission of the list. Ninety (90) days from the submission of the list for
lower collegiate courts and lower courts. We have a case here, in the
case of seniority for appointments. How is seniority determined? By law,
seniority is determined by the date of appointment. Now if you were
appointed on the same date, the seniority is determined by the order of
the appointment. So if there is appointment through a piece of paper and
there are four names there, the first on the list would be the most senior.
Does it require the acceptance of the appointee? The SC said NO. An
appointment is complete once it is made. It is not dependent upon
acceptance, at least with respect to the Judiciary. What the appointee
receives is actually a commission; you dont receive anything except a
commission. Your appointment is perfected once it is made. The SC will
just grant you the commission; something like its a way of confirming i.e.
confirming that you have been appointed to the court. Conferment. But
your seniority is based on the date of appointment. If there are several
appointments on the same date, then the order of which the appointment
appears made by the President and not dependent on any other, much
more on the acceptance of the nominee or the appointee.
SALARIES
They shall not be subjected to decrease or diminution during their tenure
and they can be increased to take effective immediately. It is not
prohibited; in fact, it can strengthen their independence.
SECURITY OF TENURE AND REMOVAL
How are judges removed? They are removed for a valid or natural
cause. The removal is through an administrative case under the
jurisdiction of the SC. They cannot be removed in any other mode but for
SC justices, they can be removed only by a valid impeachment.
JURISDICTION
This case of Ongsuco vs. Malones involves judicial review and the
concept of judicial restraint.
What is the concept of judicial restraint? Under the separation of powers,
courts are supposed to exercise their duty when they exercise judicial
review. It is not a power per se exercised over the others. It is a duty, an
obligation under the Constitution to ensure that there is no
encroachment into the constitutionally limited powers of each branch of
government. We also have mentioned in judicial review that all courts
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may exercise judicial review. One of the conditions for that exercise is
that it must have to be raised at the earliest opportunity. And normally,
as what we have seen, it has to be raised when it is tried at the first
level. You cannot change your theory on appeal. Remember the case of
Yrasuegi, if Im not mistaken, the steward who have failed the weight
requirement. The guy was given opportunity to comply but he was
eventually terminated. He filed a case in the NLRC for illegal dismissal.
But when the case reached the SC, he changed his theory. He added a
new cause on constitutional ground, that the provision violates equal
protection of the laws. He said it is discriminatory against fat people like
me, that he cannot be a steward. SC said he cannot do that, he cannot
change his theory on appeal.
Now in the case of Ongsuco on judicial restraintwhile courts of first
level can exercise judicial review It is as a matter of policy that lower
courts must exercise judicial restraint. Even the SC, as a policy, would
have to observe judicial restraint in declaring the acts of another as
unconstitutional because of the principle of equality, the principle on the
presumption of constitutionality. With all the more reason that the lower
court should not. Again the lower courts are not prohibited from
exercising judicial review but if they can help it by reason of judicial
restraint, then they must refuse to rule on a constitutional question and
let the SC decide the issue.
There is one more case that happened here in Davao, RTC 11, Judge
Europa declared that provision in the RPC on vagrancy as
unconstitutional because she did not think that vagrancy is valid. That it
violates the process and other constitutional rights. The SC reversed the
ruling but eventually Congress passed a law decriminalizing vagrancy.
You see theres some merit perhaps in what the judge had decided on
because eventually Congress enacted a law decriminalizing that form of
vagrancy and redefined it. It must have to do something with prostitution
in which they are habitually engaged in.
Section 1 thats judicial power. The second phrase there is the
expanded definition of judicial review.
In the case of Abalos vs. Darapa Section 5 refers to matters which
can be raised before the SC questions of law. What do we mean by
questions of law? Generally, they should refer to cases where there is
no issue as to the facts. What happened here in Darapa was that there
was an untitled property which was mortgaged to the DBP. Somehow,
somewhere later DBP foreclosed a titled property that covered the same
property which was mortgaged to them in 1962. The RTC annulled the
foreclosure ruling that this is not the very same property. CA affirmed.
DBP is strategically asking the SC to rule that the untitled property
mortgaged in 1962 is the same titled property they actually foreclosed
recently. Now is that a question of fact or question of law?
The SC said that it is a question of fact because it has nothing to do with
the application of the law but it has to dwell on the evidence of the case.
And the principle has always been that the SC is not a trier of facts but a
trier of law.
However, there are instances when the SC would have to decide even
on questions of facts and not necessarily limit itself with questions of
law. A good example would be to test the sufficiency of the factual basis
of declaration of martial law or suspension of the privilege of the writ of
habeas corpus. It is not filed anywhere but the SC. The SC will really
have to look into the factual issues and rule whether these facts are
sufficient to sustain the proclamation or declaration.
What else? Of cases covered under the original jurisdiction of the
Sandiganbayan where the crimes are specified and the officers with
Salary Grade 27 and up. The case is initially filed in the SB but when it is
appealed to SC, the SC is forced to look into the facts of the case.
And when death penalty was still imposable, the SC cannot do anything
but to take note of the facts because of the seriousness of the penalty.
Again, these are more of the exceptions than of the general rule.
Section 4. The SC will act as the Presidential Electoral Tribunal. So this
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THE MONTEJO LECTURES 2012-2013

would be one of those cases where the SC would exercise judicial

power of a specialized kind. In this case of Macalintal vs. PET,
petitioner said that the SC sitting as PET is unconstitutional. That SC
could not act as PET because courts are limited from performing
functions other than judicial power. In this case, the SC traced the
history of the creation of PET. In the end, it said that this is not a
violation because it is still exercising judicial power. While it is not judicial
power in a strict sense, that SC is still exercising judicial power and that
the Constitution has provided for that mechanism.

[Rubinos, Rona]

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 CONSTITUTIONAL LAW REVIEW:
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July 24, 2012
Congressional Powers over the Jurisdiction of the
Supreme Court
There are basically two provisions there: Section 2(1) of Article VIII
states that Congress cannot deprive the Supreme Court of jurisdiction
over cases mentioned in Section 5. Typically, this would refer to the
original action under Section 5(1) and the appealed cases under Section
5(2). The other would refer to those questions of law and those wherein
the penalty imposed in criminal cases is reclusion perpetua or higher.
The case of Fabian v. Desierto speaks of Republic Act 6770, the
creation of the Office of the Ombudsman where there was a provision
there that the decisions of the Ombudsman over certain cases are
directly reviewable by the Supreme Court, which SC declared as an
unconstitutional provision considering that when that law was passed,
the prior consent and concurrence of the Supreme Court was not
secured according to what is provided under Section 30 of Article VI.
Fabian vs. Desierto
G.R. 129742. September 16, 1998
Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989) pertinently
provides that -
In all administrative diciplinary cases, orders, directives or decisions of the Office
of the Ombudsman may be appealed to the Supreme Court by filing a
petition for certiorari within ten (10) days from receipt of the written notice of the
order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court.
Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this
Court from decisions of the Office of the Ombudsman in administrative
disciplinary cases. It consequently violates the proscription in Section 30, Article
VI of the Constitution against a law which increases the Appellate jurisdiction of
this Court. No countervailing argument has been cogently presented to justify
such disregard of the constitutional prohibition which, as correctly explained in
First Leparto Ceramics, Inc. vs. The Court of Appeals, el al. was intended to give
this Court a measure of control over cases placed under its appellate
Jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its
appellate jurisdiction would unnecessarily burden the Court.
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770
should be struck down as unconstitutional, and in line with the regulatory
philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised
Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman
in administrative disciplinary cases should be taken to the Court of Appeals under
the provisions of Rule 43.
The said provision prohibits or limits the power of Congress to increase
the appellate jurisdiction of the Supreme Court in certain cases provided
for in the Constitution, unless there is a prior advice and concurrence
coming from the SC. While it is part of Congressional authority to enact
a law increasing the appellate jurisdiction of the SC, that is limited by the
requirement of the Supreme Courts prior concurrence and advice.
Administrative powers of the Supreme Court
Supervision of lower courts
These would include supervision over judges as well as other court
personnel. The concept of the authority of the SC to exercise jurisdiction
over all courts would prohibit the other agencies of the government,
particularly the Office of the Ombudsman, to exercise primary jurisdiction
over the administrative cases. While other types of cases may be filed
directly with the appropriate court or tribunal, with respect to
administrative liabilities of court personnel, the provision in the
Constitution which grants the SC supervision over lower courts would
prevent the Office of the Ombudsman from exercising primary
jurisdiction over administrative matters. So, the complaints must first be
filed and eventually resolved by the SC before the same can be filed
elsewhere, and make these lower court personnel administratively liable.
Temporary assign judges to other places in the public interest
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The only limitation there is that the temporary designation or assignment
shall not exceed six (6) months without the consent of the judge
concerned. We all know that when the President appoints a person to be
a member of the bench from the list of nominees coming from the JBC,
that is a permanent appointment. The sala is a permanent sala and a
judge cannot be appointed by the SC to sit in another court. That judge
must have to go through the process again and have his name
considered in the list, submitted to the President and the President shall
make an appointment to allow another appointment in another court. But
for the demands or the exigencies of service, considering that there are
a lot of courts which have remained vacant, then the SC may make
temporary appointments.
Order place of venue or place of trial
to avoid miscarriage of justice
This is allowed in criminal cases most especially because venue in
criminal cases is jurisdictional. In order to avoid a miscarriage of justice
simply because there might be refusal or reluctance on the part of
witnesses available in the venue where the case is filed, to testify, there
may be an order of change of venue. This, however, must have to be
made upon request by either of the parties most especially by the
prosecution. And the SC will have to issue and order directing such case
to be transferred. Until then, the place where the crime was committed
would have to exercise jurisdiction over the criminal case.
Discipline of judges
We have mentioned already that in case of dismissal, disbarment,
suspension of more than one year or fine of more than ten thousand or
both, the power to dismiss and discipline judges by the Supreme Court
shall be both en banc. But if it is less than that, then the cases for the
discipline of judges can be tried and resolved by a division.
Appointment of officials employed to the entire judiciary. That is lodged
with the SC for obvious reasons. It is one of the non-judicial functions or
exercise of judicial functions of the SC for the reason that the
appointment or the authority to appoint is largely executive in character.
Rule-Making Powers
The rule-making power under Sec. 5(5) refers to protection and
enforcement of constitutional rights, pleading, practice, and procedure in
all courts, the admission to the practice of law, the integrated bar, and
legal assistance to the under-privileged. In your outline, theres a
reference there to Section 14(2), Article XII. This refers to the provision
in the National Economy and Patrimony that the practice of profession in
the Philippines is reserved to Filipino citizens. In relation to that, the rule-
making power of the SC therefore on the admission to the practice of
law is limited, in the sense that, it cannot allow non-citizens to exercise
the legal profession. Section 18(3) of Article VII... that is the declaration
of the martial law or the suspension of the privilege of the writ of habeas
corpus provision. This paragraph 3 refers to the jurisdiction or authority
of the Supreme Court to decide the issue on sufficiency of the factual
basis on declaration of martial law or the suspension of the privilege of
the writ of habeas corpus. The said paragraph mandates that the SC
must have to decide on cases for such petition within 30 days from filing.
So, it goes without saying, by reason of necessity that the SC has rule-
making powers with respect to such provision in the constitution simply
because it should follow a different mode of procedure because of the
time limitation.
Now, the case of Echegaray vs. Secretary speaks of the change in
phraseology of the rule-making power provision in the Constitution from
the 1935 to the 1987. In the 1935 Constitution, it is stated clearly under
Section 13 of Article VIII that the Congress shall have the power to
repeal, alter or supplement the Rules concerning pleading, practice,
procedure; meaning, the rule-making powers of the Supreme Court.
Congress has that express authority. In the 1973 Constitution, this has
been rephrased because Congress then was the Batasang Pambansa.
So the rules promulgated by the SC may repealed, altered or
 CONSTITUTIONAL LAW REVIEW:
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supplemented by the Batasang Pambansa. In the 1987 Constitution,
there is no similar provision. So the question is: can Congress, under the
87 Constitution, still repeal, alter or supplement these rules promulgated
by the SC under it rule-making powers? In the case of Echegaray, the
SC said that Congress can no longer exercise that power because the
1987 Constitution has expanded the rule-making powers of the SC. By
the simple omission of such power in the 1987 Constitution shows the
intent of the framers to grant the SC such rule-making power in its
entirety without any power remaining with Congress.
Echegaray vs. Secretary
301 SCRA 96 (1999)
We do not agree with the sweeping submission of the public respondents that this
Court lost its jurisdiction over the case at bar and hence can no longer restrain
the execution of the petitioner.
The more disquieting dimension of the submission of the public respondents that
this Court has no jurisdiction to restrain the execution of petitioner is that it
can diminish the independence of the judiciary. Since the implant of
republicanism in our soil, our courts have been conceded the jurisdiction to
enforce their final decisions. In accord with this unquestioned jurisdiction, this
Court promulgated rules concerning pleading, practice and procedure which,
among others, spelled out the rules on execution of judgments. These
rules are all predicated on the assumption that courts have the inherent,
necessary and incidental power to control and supervise the process of
execution of their decisions. Rule 39 governs execution, satisfaction and
effects of judgments in civil cases. Rule 120 governs judgments in criminal
cases. It should be stressed that the power to promulgate rules of
pleading, practice and procedure was granted by our Constitutions to this
Court to enhance its independence, x x x.
Under the 1935 Constitution, the power of this Court to promulgate rules
concerning pleading, practice and procedure was granted but it appeared to be
co-existent with legislative power for it was subject to the power of
Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII
provides:
"Sec. 13. The Supreme Court shall have the power to promulgate rules
concerning pleading, practice and procedure in all courts, and the admission to
the practice of law. Said rules shall be uniform for all courts of the same grade
and shall not diminish, increase, or modify substantive rights. The existing laws
on pleading, practice and procedure are hereby repealed as statutes, and are
declared Rules of Court, subject to the power of the Supreme Court to alter and
modify the same. The Congress shall have the power to repeal, alter or
supplement the rules concerning pleading, practice and procedure, and the
admission to the practice of law in the Philippines."
The said power of Congress, however, is not as absolute as it may appear on its
surface. In In re Cunanan Congress in the exercise of its power to amend rules
of the Supreme Court regarding admission to the practice of law, enacted the Bar
Flunkers Act of 1953] which considered as a passing grade, the average of 70%
in the bar examinations after July 4, 1946 up to August 1951 and 71% in the 1952
bar examinations. This Court struck down the law as unconstitutional. In his
ponencia, Mr. Justice Diokno held that "x x x the disputed law is not a legislation;
it is a judgment - a judgment promulgated by this Court during the aforecited
years affecting the bar candidates concerned; and although this Court certainly
can revoke these judgments even now, for justifiable reasons, it is no less certain
that only this Court, and not the legislative nor executive department, that may
do so. Any attempt on the part of these departments would be a clear usurpation
of its function, as is the case with the law in question."x x x By its ruling, this
Court qualified the absolutist tone of the power of Congress to "repeal, alter
or supplement the rules concerning pleading, practice and procedure, and the
admission to the practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973
Constitution. For the 1973 Constitution reiterated the power of this Court "to
promulgate rules concerning pleading, practice and procedure in all courts, x x x
which, however, may be repealed, altered or supplemented by the Batasang
Pambansa x x x." More completely, Section 5(2)5 of its Article X provided:
"Sec. 5. The Supreme Court shall have the following powers.
(5) Promulgate rules concerning pleading, practice, and procedure in all courts,
the admission to the practice of law, and the integration of the Bar, which,
however, may be repealed, altered, or supplemented by the Batasang
Pambansa. Such rules shall provide a simplified and inexpensive procedure for
the speedy disposition of cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase, or modify substantive rights."
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Well worth noting is that the 1973 Constitution further strengthened the
independence of the judiciary by giving to it the additional power to promulgate
rules governing the integration of the Bar.
The 1987 Constitution molded an even stronger and more independent
judiciary. Among others, it enhanced the rule making power of this
Court. Its Section 5(5), Article VIII provides:
"Section 5. The Supreme Court shall have the following powers:
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all courts of the same
grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court."
The rule making power of this Court was expanded. This Court for the first
time was given the power to promulgate rules concerning the protection and
enforcement of constitutional rights. The Court was also granted for the first
time the power to disapprove rules of procedure of special courts and quasi-
judicial bodies. But most importantly, the 1987 Constitution took away the
power of Congress to repeal, alter, or supplement rules concerning
pleading, practice and procedure. In fine, the power to promulgate rules of
pleading, practice and procedure is no longer shared by this Court with Congress,
more so with the Executive. If the manifest intent of the 1987 Constitution is to
strengthen the independence of the judiciary, it is inutile to urge, as public
respondents do, that this Court has no jurisdiction to control the process of
execution of its decisions, a power conceded to it and which it has exercised
since time immemorial.
No quasi-judicial and administrative work for judges. This case of
Manzano is still good. Well, as explained in another case [Macalintal vs.
PET], the SC is not exercising quasi-judicial functions in exercising its
powers under the Electoral Tribunal. It still exercises judicial powers in
that sense because it would still resolve conflicting rights with respect to
the election of the President and the Vice-President. That is not strictly
administrative work for them. The intent of this prohibition is to disallow
or prevent a situation where a decision of a judge or of a court in the
exercise of quasi-judicial or administrative work will be subjected to the
review powers of a court; where it would place itself in a very delicate
situation where its previous decisions or orders will be reviewed by it in
the exercise of judicial power. As you can see in the Rules of Court
regarding appeals or review of decisions of quasi-judicial bodies, they
almost end up with the courts-- normally with the Court of Appeals, and
in extreme cases on certiorari under Rule 65, with the SC. So the rule
there is that 63, 64, 65, this may come from decisions of administrative
bodies exercising quasi-judicial functions and their decisions may be
reviewed eventually by the regular courts. So to place a judge or a court
to do these decisions in the exercise of quasi-judicial functions, and
eventually having the regular courts review them, would not bid well for
our system of checks and balances.
In re: Judge Rodolfo Manzano
166 SCRA 246 (1988)
A.M. No. 88-7-1861-RTC
Judge Manzano was designated as a member of the Ilocos Norte Provincial
Committee on Justice. Judge Manzano requested the SC to issue an
authorization to accept the nomination and to consider his membership in the
Committee as neither violative of the Independence of the Judiciary nor a
violation of Section 12, Article VIII, or of the second paragraph of Section .7,
Article IX (B), both of the Constitution, and will not in any way amount to an
abandonment of my present position as Executive Judge of Branch XIX, Regional
Trial Court, First Judicial Region, and as a member of the Judiciary.
Under the Constitution, the members of the Supreme Court and other courts
established by law shag not be designated to any agency performing quasi-
judicial or administrative functions (Section 12, Art. VIII, Constitution).
Considering that membership of Judge Manzano in the Ilocos Norte Provincial
Committee on Justice, which discharges a administrative functions, will be in
violation of the Constitution, the Court is constrained to deny his request.
 CONSTITUTIONAL LAW REVIEW:
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While the doctrine of separation of powers is a relative theory not to be enforced
with pedantic rigor, the practical demands of government precluding its
doctrinaire application, it cannot justify a member of the judiciary being required to
assume a position or perform a duty non-judicial in character. That is implicit in
the principle. Otherwise there is a plain departure from its command. The
essence of the trust reposed in him is to decide. Only a higher court, as was
emphasized by Justice Barredo, can pass on his actuation. He is not a
subordinate of an executive or legislative official, however eminent. It is
indispensable that there be no exception to the rigidity of such a norm if he is, as
expected, to be confined to the task of adjudication. Fidelity to his sworn
responsibility no less than the maintenance of respect for the judiciary can be
satisfied with nothing less.
Report on the judiciary. This is just reportorial requirements. Nothing
much to it.
Manner of voting and number of votes required. We have mentioned
already the cases that the SC shall hear and decide en banc. Now, with
respect to the voting... the voting now follows what is commonly referred
to as shifting majority. Unlike before, where the rules are strict, we have
the 2/3 rule before on all issues involving constitutional questions, now it
largely depends on a majority of the members of the Court who actually
took part on the issues and deliberated thereon. What is first to be
determined is that there is a quorum to the Court. So, from the 15 there
must have to be a quorum, which in the case which the SC normally
follows, shall mean more than half. The number which is more than half
is supposed to be the number to constitute the majority for purposes of
quorum. Now, out of the quorum, a majority of those who actually took
part conditioned upon the quorum on the issues deliberated thereon, will
have to determine whether or not there is a majority vote or the decision
of the court en banc. In division, there is a special rule there that while it
still follows the shifting majority rule, there is a limitation that in no case
shall there be less than three votes. So, if Supreme Court shall be in a
division of three members, there must have to be a unanimous vote
among the sitting Justices. Unlike in the NLRC, there are three
commissioners sitting. If you get two votes out of the three, youre good.
Because theres no such limitation as provided for similar to the Court
sitting en banc.
Which number shall be included for purposes of quorum? Of course, the
number which represents the total membership of the Court. What about
those who actually did not take part, are their numbers considered? If
there is a Division, is that person considered? Again, only those who
actually took part in deliberation of the issues shall be considered for
purposes of majority for purposes of a valid quorum in the Court.
Now, if a Division decision is not reached, despite prior consultation, the
issue or case shall be referred to the Court en banc. Now, if the court en
banc in that civil case or in the civil petition, has not reached the required
majority or are equally divided, the requirement under Rule 56, Section 7
that the Court will deliberate on the case again. If still, after deliberation
no vote is reached or the Court is equally divided, then the rules state
that if it is an original action or petition, it shall be dismissed. If it is an
appealed case, the appealed decision shall be considered affirmed. All
other incidents of the petition are deemed denied. Instances involving
criminal decisions under Section 3 of Rule 125, there would still be a
deliberation. After deliberation, if the Court is still divided or the majority
vote is not reached, the Court will deliberate on the case again. If after
the 2nd deliberation, still the Court is divided or the majority vote is not
reached, then the judgment of conviction in the lower court is deemed
reversed and the accused shall be set free.
Now, requirements as to decisions. There are two basic requirements:
the formal requirements and the substantive requirements. With respect
to formal requirements, if it were to be by the Supreme Court or any
collegial court, there is a formal requirement of a certification that the
case was reached upon prior consultation. Absence of the certification
however would not invalidate an otherwise valid decision because its
just a mistake in form or a defect in form and not in substance. Normally,
if the case is deliberated by the SC, it will be assigned to a member for
the writing of the decision after a voting has been had. The voting is
supposed to be done in inverse order, the most junior will go first, the
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most senior or the Chief Justice will vote last. The reason behind is to
avoid the junior members of the Court from being unduly influenced by
the vote of the more senior justices. So, after the vote is reached, the
case is now assigned to a member of the Court who will write for the
majority.
Now, the other formal requirement would be if there is a dissent, the
dissenting opinion must have to be written. Or if there is abstention or
refusal to participate, the reasons for the refusal to participate or
inhibition must also be indicated. Of course, because the majority is the
decision of the Court, those who agree or concur to the decision are not
required to write a separate concurring opinion, though they are not
prohibited. In some cases, if you notice, because it is constitutionally
required in form that there is a separate dissenting opinion to be written,
some justices who would not want to write a separate dissent would just
join the dissent of another. That would substantially comply with the
constitutional requirement.
Now, the substantive requirement of a decision is that the decision must
express clearly and distinctly the facts and the law on which the same is
based. This is basically a requirement of due process so that parties
may know how a court has reached a decision. This has been the
subject of many cases simply because there is seemingly no agreement
as to how this particular requirement is complied. Most are on the
question of style and memorandum decision. A memorandum decision
is a decision which simply copies material portions of the decision
subject of the review. The Constitution does not prohibit it and the Rules
of Court does not make these Memorandum decisions invalid because if
they substantially comply with the requirement [the facts and the law are
expressed therein for the parties to understand, how the Court has
reached the decision], then it substantially complies with the
requirement. It has the same rationale behind the discussion in the void-
for-vagueness doctrine. Certain laws may be vague simply because of
a misuse of words or phrases. The appropriateness of the words and
phrases would not somehow make it clear what the law is. Same with
decisions, we dont expect judges or justices to copy the writing style of
the better writers. So some who read a decision may not be able to
understand it in first reading. This is a matter of style. It does not make a
decision invalid simply because it is hard to understand. For so long as
there is presentation of facts and the law applied into the facts and the
conclusion, that would be sufficient. It is not also invalid if the decision
will take only the facts as may have been proven by one party and not
both. Because the court is allowed to exercise discretion which evidence
is to be believed and which evidence is to be discarded. Just because
the presentation of facts, say, of the defense was not believed by the
court, and almost copied the entire presentation of facts by the
prosecution, it does not make the decision invalid simply because one
set of facts was readily believed over that of the other. Whats important
is that there is a finding of fact and a conclusion of law and there is a
disposition of the case.
The case of Tan v. Ramirez, where the lower court made simply a
disposition of how the property subject of the case should be disposed of
without making any findings of fact. SC said that is a violation of Section
14. This provision is almost always discussed in relation to
administrative, procedural due process because of the so-called seven
cardinal primary rights where the seventh right there refers to the same
requirement, although stated differently, it mentions that the decision of
the administrative tribunal must have to state the facts and the law in
order for the parties to know why the court was able to reach the
decision. The question asked is: is this Section 14 required under
administrative decisions. The answer is NO, because this would apply to
court decisions only. But if the question is stated differently by saying:
should decisions of administrative tribunal also clearly and distinctly
express the facts and the law on which it is based, the answer is YES
because both are requirements of due process. If the party has won, at
least he would know why he has won. If the party has lost, he would
know what assignment of errors should he make if he intends to appeal.
The problem with decisions without containing any of these would be it
would be difficult to assign errors if you were the appellant, or to defend
the decision of the court if you were the appellee. Because if you are the
 CONSTITUTIONAL LAW REVIEW:
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appellee, you are supposed to defend the decision of the lower court
when the case goes to appeal.
Tan vs. Ramirez
626 SCRA 327 (2010)
G.R. 158929
RTC Decision did not conform to the requirements of the Constitution and of the
Rules of Court
We cannot close our eyes to the failure of the RTC decision to measure up to the
standard set by Section 14 of Article VIII of the Constitution, as well as Section 1
of Rule 36 and Section 1, Rule 120 of the Rules on Civil Procedure, that a
decision, judgment or final order determining the merits of the case shall
state, clearly and distinctly, the facts and the law on which it is based. Our
Administrative Circular No. 1 of January 28, 1988 reiterates this requirement and
stresses that judges should make complete findings of facts in their decisions,
scrutinize closely the legal aspects of the case in the light of the evidence
presented, and avoid the tendency to generalize and to form conclusions without
detailing the facts from which such conclusions are deduced.
In Yao v. Court of Appeals, we emphasized:
Faithful adherence to the requirements of Section 14, Article VIII of the
Constitution is indisputably a paramount component of due process and fair play.
It is likewise demanded by the due process clause of the Constitution. The parties
to a litigation should be informed of how it was decided, with an explanation of the
factual and legal reasons that led to the conclusions of the court. The court
cannot simply say that judgment is rendered in favor of X and against Y and just
leave it at that without any justification whatsoever for its action. The losing party
is entitled to know why he lost, so he may appeal to the higher court, if permitted,
should he believe that the decision should be reversed. A decision that does not
clearly and distinctly state the facts and the law on which it is based leaves the
parties in the dark as to how it was reached and is precisely prejudicial to the
losing party, who is unable to pinpoint the possible errors of the court for review
by a higher tribunal. More than that, the requirement is an assurance to the
parties that, in reaching judgment, the judge did so through the processes of legal
reasoning. It is, thus, a safeguard against the impetuosity of the judge, preventing
him from deciding ipse dixit. Vouchsafed neither the sword nor the purse by the
Constitution but nonetheless vested with the sovereign prerogative of passing
judgment on the life, liberty or property of his fellowmen, the judge must ultimately
depend on the power of reason for sustained public confidence in the justness of
his decision.
The RTC decision did not distinctly and clearly set forth, nor substantiate, the
factual and legal bases for its affirmance of the MCTC decision. It contained no
analysis of the evidence of the parties nor reference to any legal basis in reaching
its conclusions. Judges must inform the parties to a case of the legal basis for
their decision so that if a party appeals, it can point out to the appellate court the
points of law to which it disagrees. Judge Apostol should have known the
exacting standard imposed on courts by the Constitution and should not have
sacrificed the constitutional standard for brevitys sake. Had he thoroughly read
the body of the MCTC decision, he would have clearly noted that the proportion
of 1:3, stated in the penultimate paragraph of the decision, meant that the
petitioner was entitled to one-fourth, while the respondents were entitled to three-
fourths, of the subject property.
Mandatory period for deciding cases
Four periods for deciding cases. The first would be under Section 18 of
Article VII thats 30 days from filing of the petition, a very very special
rule. Then we have the normal periods: for lower courts we have 90
days, for lower collegiate courts you have 12 months, for the Supreme
Court, you have 24 months and the period for deciding cases would be
counted from or commenced from the time the case is submitted for
decision. So, its not the 90 days, 12 months, 24 months periods strictly
because cases are deemed submitted for decision only until all the
evidence are in, or the period to submit evidence has lapsed already or
the parties have submitted their memorandum or brief, as required or the
period to do so has already lapsed without any of them being filed.
Now, these periods are both mandatory and discretionary. Discretionary
in the sense that with respect to the decisions rendered after these
periods, the decisions will not be invalid simply because they were
promulgated after the said periods. They remain to be valid for so long
as they are valid to begin with. However, with respect to those persons
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who are tasked to render these decisions, they are mandatory. There
are a lot of cases already and most of the cases in your outline are on
that point: trial court judges who have failed to resolve issues, motions or
decide cases within the mandated period have been fined with variable
amounts depending on the gravity of the delay for failing to comply with
these periods. These are, therefore, in that sense, mandatory. But we
have yet to see a decision of the SC penalizing one or all of them for
failing to comply with the 24-month period. CA, I dont know, but
Sandiganbayan, there was one the late Presiding Justice Garchitorena
of the Sandiganbayan was even dismissed from the service for failing to
comply with 12-month period period to decide or resolve cases.
If part of the decision was plagiarized, would that fact invalidate the
decision? The answer is NO, because the decision is valid. Even if
portions of it is plagiarized, it would not render it invalid. The omission of
the sources of the quotation would not make the quotation invalid. It
simply is your failure to make the proper citation.
Lower courts, theres not much to it.
Then, Judicial and Bar Council. The latest which is the recent Supreme
Court resolution that became final that: there is only one vote for the
representative of the Congress of the Philippines. Now, the JBC shall be
composed of three ex-officio members and four regular members. The
CJ, the Secretary of Justice and a representative of Congress. This was
the subject of the petition of Atty. Frank Chavez, that the JBC was voting
unconstitutionally because there is one Senator and one member of the
lower House with one vote each. There are supposed to be seven votes
only and not eight because what should happen if the eight members
are equally divided as to the candidates or applicants for a position in
the judiciary? The constitution only says seven so that there will be no
equal voting in the regular course of proceedings. Now, the regular
members are appointed by the President with the confirmation of the
Commission on Appointments. They are the IBP representative, a
professor of law, a retired SC Justice, and a representative of the private
sector for a four-year term. The function of the JBC is largely to
recommend appointees to the judiciary, but they can also be made to
perform other tasks as the SC may assign. Up to now, there is yet any
other function of the JBC known to the public.
The JBC has been created largely, based on the discussion in the case
of De Castro v. JBC, to screen appointees to the judiciary in order to
shield these appointees from the politics of the regular appointments
made by the President. Before the creation of the JBC, appointments to
the SC and justices of lower collegiate courts and judges of lower courts
have been screened through the Commission on Appointments. So the
JBC was put in place apparently to shield these appointees from politics
of the executive and Congress. Because of the so-called staggered
terms, just like in the Constitutional Commissions, the staggered terms
would assure the (1) continuity of the functions of the office, (2) ensure
that there is continued independence of that body because they will
always out-term the President who will only sit for six (6) years.
De Castro vs. JBC
G.R. 191002
17 March 2010
The intervention of the JBC eliminates the danger that appointments to the
Judiciary can be made for the purpose of buying votes in a coming presidential
election, or of satisfying partisan considerations. The experience from the time of
the establishment of the JBC shows that even candidates for judicial positions at
any level backed by people influential with the President could not always be
assured of being recommended for the consideration of the President, because
they first had to undergo the vetting of the JBC and pass muster there. Indeed,
the creation of the JBC was precisely intended to de-politicize the Judiciary by
doing away with the intervention of the Commission on Appointments.
Now, lets go to the Constitutional Commissions.
CONSTITUTIONAL COMMISSIONS
With respect to the Constitutional Commissions would be the discussion
on constitutional safeguards to ensure the independence of these
 CONSTITUTIONAL LAW REVIEW:
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Commissions. The first provision there is the prohibition based on the
transitory provisions that while incumbent commissioners are allowed to
serve continuously until they are replaced, or they can be reappointed.
They cannot serve for more than seven (7) years. They seven-year term
is fixed under any and all circumstances. The only exception there are
those first appointed under the 1987 Constitution. There is no re-
appointment in any case except those covered by the transitory
provisions. If you are appointed after the efficacy of the 1987
Constitution, there is no re-appointment in any case, just like the no re-
election rule of the President. Now, if there is an unexpired term, the
person who is appointed to fill in the vacancy will only serve for the
unexpired term. Can that person be re-appointed? The answer is NO,
again there is a rule against ANY re-appointment.
There shall be no designation in any temporary or acting capacity,
because only a permanent appointment can ensure that the appointee is
secured in his office and if that persons appointment is only temporary,
there is not assurance that he will be secured and therefore he will still
owe some form of loyalty to the appointing authority. But once he is
appointed and the appointment is permanent, he no longer owes any
loyalty at least in theory to the appointing authority.
Now, we have the rotational plan. The discussion on what is this, is
with respect to the Constitutional Commissions and all other
commissions of similar character that there is appointments of first
appointees with staggered terms and subsequent appointees for the full
term to ensure the continuity of the institution despite the expiration of
term of the appointing authority and to ensure their full independence
because not all the members of the commission , or similar entities or
bodies, except the first appointees, would be appointed by the President.
Maybe they can appoint one or two but never everybody in the
commission or at the same time except for those first appointed. It is a
scheme or a plan to ensure the continued independence of the
commission or similar bodies.
Another provision which ensure independence would be the non-
diminution of salaries. That is applicable to the judiciary. The salaries
of the members of the commission cannot be decreased during the term.
Can it be increased? Same with the judiciary, it can be increased.
Because they do not have any participation in the passage of any bill
which would increase their respective salaries. They are subject to the
benevolence of the Congress and the President. And, second, it would
ensure or safeguard their independence.
Then, there is a similar provision with the judiciary: all approved annual
appropriation shall be automatically and regularly released to the
judiciary. We mentioned before that the only difference with respect to
the judiciary with respect to appropriations is that while in the judiciary,
the appropriations shall not be decreased or diminished as compared to
current levels (can only be maintained or can be increased) but for the
Constitutional Commissions there is no such provision simply because
as we have said, the budgetary requirements of the Commission would
depend on a year-to-year basis, unlike in the judiciary which is more or
less having a degree of permanence considering the staffing pattern of
the judiciary as well as all the other requirements for expenditures.
Composition and Qualification of Commissioners
For the CSC and the COA, there are three Commissioners: one
presiding and two members. For the COMELEC, there shall be seven.
For the CSC, members must have proven capacity for public
administration. For the COA, they must have to be certified public
accountants or members of the Philippine Bar with ten years of
accounting practice or legal practice as the case may be. For the
COMELEC, theres a special provision with respect to its composition.
The Chair and a majority of the members must have to be lawyers or
members of the Philippine bar with at least ten (10) years of practice of
law. And we have the old case of Cayetano v. Monsod: when the law
requires practice of law as a condition or qualification of office, it does
not require actual courtroom practice.
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Now, disqualifications. The normal provision with respect to
disqualification for appointment in any government position for
candidates in elective office is contained in Section 6 of Article IX-B. No
candidate who has lost in any election shall, within one year after such
election, be appointed to any government office, GOCC, or subsidiary.
Under Section 6, two phrases there: (1) you must have lost in that
election, (2) one year. So, if say, Juan ran and won as mayor, can he be
appointed within 6 months to the DILG Secretary position? The answer
is YES, because the law says who has lost and one year from that
election which he has lost. But if you have won, you can be appointed,
there is no prohibition. The only limitation there is that you will lose your
elective position.
However, for constitutional commissioners, theres a specific provision
which states that they must not have been candidates for any elective
position in the election immediately preceding their appointment. Now,
there is not requirement that you have lost or that there is no privilege if
you have won because it simply says that you must not have been a
candidate in the election immediately preceding the appointment. Now,
in the country, the election is almost every three years, except the brgy
elections now. So, if you have run under the 2007 elections, you cannot
be appointed until after the 2010 elections have been conducted.
Because, the immediately preceding elections is the 2007 elections. So,
its longer than one year. Its extended, regardless whether you have won
or you have lost. Now, there is a question in the past simply because
what elections are we talking about?. It presupposes that there must
have to be an elections before your appointment, in between the time
you ran and the time that your were appointed.
Now, if the elections are synchronized, then there is no difficulty in
understanding this after the conduct of the next elections from were
you ran. But, there were instances in the past, and they are still good
today. So, say theres a brgy. elections for brgy. officials and the SK. Is
that elections the elections contemplated in this extended lame-duck
provision? Or if the ARMM elections were not cancelled and postponed
for 2013 and conducted in 2011, would it be considered an election
which would therefore be the immediately preceding election prior to
your appointment? Now, is there a difference in the treatment of a local
and national elections, therefore, for purposes of the extended lame
duck provision? It would seem that, again.. that election must be of
national scope, meaning at least there is an election of members of
Congress which is every three years. The brgy. elections would not
count because it just a local election. Or the ARMM election. No problem
with respect to the regular elections or local government officials
because they are always included because of synchronization included
in the concept of national elections.
[Evangelista, Paolo]
 CONSTITUTIONAL LAW REVIEW:
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July 25, 2012
We have discussed extensively the disqualifications and appointments
into the Constitutional Commissions. Now, on the matters pertaining to
the Civil Service Commission I guess the specifics would be how
have you taken up the law on Public Officers? With the Commission on
Audit, theres not much in it because we dont have government account
auditing in practice. Anyway, in Constitutional Commissions, the
discussion there would be on the scope of the Civil Service because
only those GOCCs with original charters are covered by the Civil
Service. The GOCCs which do not have original charters (created under
the Corporation Code), whose shares of stock, however, are owned by
the State are under the ambit of the Corporation Code.
I think in your outline, there is this case of PNB vs. Tejano, 604 SCRA
147 (2009). This involves Philippine National Bank which used to be a
GOCC but which has since been privatized. The Government has been
into privatization, where GOCCs have been sold to private entities.
Now, the question here was posed because an administrative case was
filed against the employees of the PNB while it was still a GOCC with an
original charter. However, the case was overtaken by privatization. So
the question here is whether or not the jurisdiction remains with the Civil
Service. The Supreme Court said yes, based on the general principles
that once jurisdiction was acquired, the jurisdiction remained at the
original forum that acquired jurisdiction. It should not be transferred
therefore to other fora for certiorari. Since the administrative case
against the PNB employees was filed with the Civil Service Commission,
it is the latter which has acquired jurisdiction over the case. The case
will have to be decided en banc by the Civil Service Commission
eventually.
PHILIPPINE NATIONAL BANK vs. CAYETANO A. TEJANO, JR.
G.R. No. 173615 October 16, 2009
While there is no denying that upon its privatization, the bank would consequently
be subject to laws, rules and regulations applicable to private corporations
which is to say that disciplinary cases involving its employees would then be
placed under the operation of the Labor Code of the Philippines still, we cannot
validate petitioners own interpretation of Section 6 of E.O. No. 80 that the same
must be applied to respondents pending appeal with the CSC and that,
resultantly, the CSC must abdicate its appellate jurisdiction without having to
resolve the case to finality.
It is binding rule, conformably with Article 4 of the Civil Code, that, generally, laws
shall have only a prospective effect and must not be applied retroactively in such
a way as to apply to pending disputes and cases. This is expressed in the
familiar legal maxim lex prospicit, non respicit (the law looks forward and not
backward.) The rationale against retroactivity is easy to perceive: the retroactive
application of a law usually divests rights that have already become vested or
impairs the obligations of contract and, hence, is unconstitutional. Although the
rule admits of certain well-defined exceptions such as, for instance, where the law
itself expressly provides for retroactivity, we find that not one of such exceptions
that would otherwise lend credence to petitioners argument obtains in this case.
Hence, in other words, the fact that Section 6 of E.O. No. 80 states that PNB
would be removed from the coverage of the CSC must be taken to govern acts
committed by the banks employees after privatization.
Moreover, jurisdiction is conferred by no other source than law. Once jurisdiction
is acquired, it continues until the case is finally terminated. The disciplinary
jurisdiction of the CSC over government officials and employees within its
coverage is well-defined in Presidential Decree (P.D.) No. 807, otherwise known
as The Civil Service Decree of the Philippines. Section 37 thereof materially
provides that the CSC shall have jurisdiction over appeals in administrative
disciplinary cases involving the imposition of the penalty of suspension for more
than thirty days; or fine in an amount exceeding thirty days salary; demotion in
rank or salary or transfer, removal or dismissal from office.
It bears to stress on this score that the CSC was able to acquire jurisdiction over
the appeal of respondent merely upon its filing, followed by the submission of his
memorandum on appeal. From that point, the appellate jurisdiction of the CSC at
once attached, thereby vesting it with the authority to dispose of the case on the
merits until it shall have been finally terminated.
Now the other aspect with respect to the Civil Service Commission would be the
review of its final orders and resolutions.
Based on the provisions of the Constitution with respect to review of its decisions,
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the review of the decisions of the Constitutional Commissions generally shall be
with the Supreme Court under the rules of prohibition and certiorari, unless
otherwise provided for by the Rules of Court. There is a period there stated,
which is thirty (30) days. However, based on the Rules of Court, the decisions of
the Civil Service Commission are reviewable by certiorari with the Court of
Appeals under Rule 43. But it must have to be emphasized that only decisions of
the Civil Service Commission in the exercise of its quasi-judicial functions are
subject to review by the Court of Appeals under Rule 43.
There is one case here, the case of Capablanca vs. Civil Service
Commission, 605 SCRA 61 (2009). It involves cheating in the Civil
Service exam. So a person was found to have cheated and therefore
the Civil Service Commission issued an order disqualifying him from
taking any other Civil Service exam. That decision which disqualified the
person should have been questioned in the regular courts. Normally,
you go to the Regional Trial Court because that is from the decision of
the Civil Service Commission in the exercise of its quasi-judicial
functions. But if the case does not involve quasi-judicial functions, we
have to go to the rules of proceedings with respect to Civil Service
employees. Before, the rules of procedure are called URACCS (Uniform
Rules on Administrative Cases in Civil Service). Now it is RRACCS
(Revised Rules in Administrative Cases in Civil Service, published on
November 21, 2011 in The Manila Times). The decisions in those cases
are the ones reviewable by the Supreme Court under Rule 43. All the
rest of the issuances and administrative questions should have to be
proceeded under the regular courts between the parties.
EUGENIO S. CAPABLANCA vs. CIVIL SERVICE COMMISSION
G.R. No. 179370 November 19, 2009
The CSC, as the central personnel agency of the Government, is mandated to
establish a career service, to strengthen the merit and rewards system, and to
adopt measures to promote morale, efficiency and integrity in the civil service.
The civil service embraces all branches, subdivisions, instrumentalities, and
agencies of the government, including government-owned or controlled
corporations with original charters. Specifically, Section 91 of Republic Act (RA)
No. 6975 (1990) or the Department of Interior and Local Government Act of
1990 provides that the Civil Service Law and its implementing rules and
regulations shall apply to all personnel of the Department, to which herein
petitioner belongs.
In addition, Section 28, Rule XIV of the Omnibus Civil Service Rules and
Regulations specifically confers upon the CSC the authority to take cognizance
over any irregularities or anomalies connected with the examinations, thus:
Sec. 28. The Commission shall have original disciplinary jurisdiction
over all its
officials and employees and over all cases involving civil service
examination
anomalies or irregularities.
To carry out this mandate, the CSC issued Resolution No. 991936, or the Uniform
Rules on Administrative Cases in the Civil Service, empowering its Regional
Offices to take cognizance of cases involving CSC examination anomalies:
SECTION 6. Jurisdiction of Civil Service Regional Offices. - The Civil Service
Commission Regional Offices shall have jurisdiction over the following cases
A. Disciplinary
1. Complaints initiated by, or brought before, the Civil Service Commission
Regional Offices provided that the alleged acts or omissions were committed
within the jurisdiction of the Regional Office, including Civil Service examination
anomalies or irregularities and the persons complained of are employees of
agencies, local or national, within said geographical areas; x x x x
Based on the foregoing, it is clear that the CSC acted within its jurisdiction when it
initiated the conduct of a preliminary investigation on the alleged civil service
examination irregularity committed by the petitioner.
COMMISSION ON AUDIT
The Commission on Audit shall have the power, authority, and duty to
examine, audit and settle all government accounts, including GOCCs
with original charters. Any money from the public treasury which was
given or sent by any other entity in the government is subject to the
usual auditing procedure.
 CONSTITUTIONAL LAW REVIEW:
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However, the Constitution has specified that the following shall only be
covered on a post-audit basis:
1. Constitutional bodies, commissions and offices that have
been granted fiscal autonomy under the Constitution;
2. Autonomous state colleges and universities;
3. Other GOCCs and their subsidiaries; and
4. NGOs with government subsidy.
The COA has a certain limited quasi-judicial function. Largely, COA
decisions are on administrative matters with respect to audit and
administrative functions. Normally, this would have to do with
disallowances based on our limited understanding of lawful expenditure.
When the government fund is spent, supposedly it goes through the
usual checks and checking procedure. It goes through the accountant; it
goes through public officers, before the treasurer, and the head of the
unit shall have to sign the voucher and checks. Thereafter, the COA will
have to audit it again. There is supposed to be a pre-audit procedure,
but nonetheless, in the post-audit, COA may actually disallow the
expenditure. This is where the COA, in its limited exercise of quasi-
judicial functions, decides whether or not there is supposed to be
disallowances of the expenditure.
Now the decision of the COA will be subject to review by the Supreme
Court under Rule 64, in relation to Rule 65 (certiorari). That is so
provided under the Rules of Court.
Now, in this case of Aguinaldo vs. Sandiganbayan, 265 SCRA 121
(1996), the Supreme Court had occasion to discuss the extent of the
COAs findings on the validity or invalidity of an expenditure. What
happened in this case was that Governor Aguinaldo was charged before
the Sandiganbayan for malversation because of some expenditure. The
initial finding was based on the COA report that certain expenditures
were had even if they should not have been allowed. In the course of
the proceedings, Aguinaldo was able to get some sort of a report again
from the COA certifying that there is supposed to be no disallowance
because Governor Aguinaldo had complied with all the requirements or
conditions for the expenditure. So he moved for the dismissal of the
criminal case in the Sandiganbayan, arguing that since COA has cleared
him of any administrative (charges), of any liability with respect to the
questioned expenditures, then there is no need now for a criminal case.
The Sandiganbayan refused to dismiss that, and so it was appealed to
the Supreme Court.
The Supreme Court said that the effect of the findings of COA is only
conclusive as to the administrative aspect of the expenditure, meaning, if
it is not disallowed by COA, it simply means that all the procedure for the
expenditure to be valid based on the government accounting and
auditing practice and procedures have been complied with. It does not
preclude, however, the case from proceeding against the public officer in
a criminal case for malversation if there are other pieces of evidence to
warrant the indictment. COA has no power over criminal prosecution,
unlike, for example the Ombudsman. You can actually file two cases.
One is the administrative aspect, the other is for finding of probable
cause in a criminal case. In the COA, there seems to be a filing only as
to the administrative concept or the matter is subject to its own auditing
powers.
RODOLFO E. AGUINALDO vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES
G.R. No. 124471 November 28, 1996
In Ramos v. Aquino, we ruled that the fact that petitioners accounts and vouchers
had been passed in audit is not a ground for enjoining the provincial fiscal from
conducting a preliminary investigation for the purpose of determining the criminal
liability of petitioners for malversation of public funds through falsification of public
documents.
The Auditor General, as noted is vested with the power to examine, audit and
settle all accounts pertaining to the revenues and receipts from whatever source,
and to audit, in accordance with law and administrative regulations, all
expenditures of funds or property pertaining to or held in trust by the government
as well as the provinces or municipalities thereof. That is one thing. The
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ascertainment of whether a crime [is] committed and by whom is definitely
another.
COAs approval of petitioners disbursements only relates to the administrative
aspect of the matter of his accountability but it does not foreclose the
Ombudsmans authority to investigate and determine whether there is a crime to
be prosecuted for which petitioner is answerable. Therefore, as correctly stated
by the Sandiganbayan in its order of April 12, 1996, while the COA may assist in
gathering evidence to substantiate a charge of malversation, any determination
made by it will not be conclusive as to whether adequate cause exists to
prosecute a case. This is so because the Ombudsman is given the power to
investigate on its own an illegal act or omission of a public official.
Indeed, while the COA may regard petitioner to have substantially complied with
its accounting rules, this fact is not sufficient to dismiss the criminal cases.
Beyond compliance with COA rules and regulations, the question is whether there
was a misappropriation of public funds by petitioner. This is a question of fact to
be established by evidence. All that petitioners failure to submit the documents
required in the COA circulars in questions means is that there is a presumption of
malversation sufficient to justify the filing of a case in court. As Art. 217 of the
Revised Penal Code provides:
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal use.
Petitioner may still prove his innocence. Until he does this, however, the
presumption that public funds were put to personal use stands.
What we said in Paredes v. Sandiganbayan is apropos to this case:
[T]his Court is loath to interfere with the discretion of the Ombudsman unless
such discretion is clearly shown to have been abused. As explained in Young v.
Office of the Ombudsman:
The rule is based not only upon respect for the investigatory and prosecutory
powers granted by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the functions of the courts will be grievously
hampered by innumerable petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the Ombudsman with regard to
complaints filed before it , in much the same way that the courts would be
extremely swamped if they could be compelled to review the exercise of
discretion on the part of the fiscals or prosecuting attorneys each time they decide
to file an information in court or dismiss a complaint by a private complainant.
COMMISSION ON ELECTIONS
The COMELEC shall have the power to enforce and administer all laws
relating to the election, plebiscite, initiative, referendum, and recall. As
we all know, the COMELEC exercises administrative and quasi-judicial
functions. The decisions of the COMELEC are reviewable under Rule
64, in relation to Rule 65. But again, only decisions in adjudicatory
cases involving elective regional, provincial and city officials.
In one of the cases mentioned here in your outline this case of Garces
vs. Court of Appeals, 259 SCRA 99 (1996). This was a case involving
the order of the COMELEC on the movement of its personnel. For
example, the provincial election supervisor or city director is transferred.
[SC said that decisions, rulings provided in the Constitution refer to the
COMELECs exercise of its quasi-judicial functions]
So any matter with respect to the election of these officers, whether it be
election protest or election movement charges are the ones subject to
the review powers of the Supreme Court, not those in the exercise of the
administrative or supervisory powers of the Commission on Elections.
LUCITA Q. GARCES vs. THE HONORABLE COURT OF APPEALS,
SALVADOR EMPEYNADO and CLAUDIO CONCEPCION
G.R. No. 114795 July 17, 1996
The jurisdiction of the RTC was challenged by respondent Empeynado
contending that this is a case or matter cognizable by the COMELEC under
Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution cancelling
the appointment of Garces as Election Registrar of Gutalac, he argues, should be
raised only on certiorari before the Supreme Court and not before the RTC, else
the latter court becomes a reviewer of an en banc COMELEC resolution contrary
to Sec. 7, Art. IX-A.
 CONSTITUTIONAL LAW REVIEW:
THE MONTEJO LECTURES
The contention is without merit.
Sec. 7, Art. IX-A of the Constitution provides:
Each commission shall decide by a majority vote of all its members any case or
matter brought before it within sixty days from the date of its submission for
decision or resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum required by
the rules of the commission or by the commission itself. Unless otherwise
provided by this constitution or by law, any decision, order, or ruling of each
commission may be brought to the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof.
This provision is inapplicable as there was no case or matter filed before the
COMELEC. On the contrary, it was the COMELECs resolution that triggered this
Controversy. The case or matter referred to by the constitution must be
something within the jurisdiction of the COMELEC, i.e., it must pertain to an
election dispute. The settled rule is that decision, rulings, order of the
COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7
Art. IX-A are those that relate to the COMELECs exercise of its adjudicatory or
quasi-judicial powers involving elective regional, provincial and city officials.
In this case, what is being assailed is the COMELECs choice of an appointee to
occupy the Gutalac Post which is an administrative duty done for the operational
set-up of an agency. The controversy involves an appointive, not an elective,
official.
Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To
rule otherwise would surely burden the Court with trivial administrative questions
that are best ventilated before the RTC, a court which the law vests with the
power to exercise original jurisdiction over all cases not within the exclusive
jurisdiction of any court, tribunal, person or body exercising judicial or quasi-
judicial functions.
Prohibition with respect to the members of the Constitutional
Commissions, they shall not hold any other office or employment.
The only exception there would be similar to all, the ex officio functions
based again on two 2 general principles:
1. That the additional functions are not considered new
appointments but are deemed included when they were
appointed as such commissioner,
2. And the second one, the more important one, they are
not going to receive any other emolument or benefit out
of the designation to perform other functions.
They shall not practice their professions. And they are prohibited
from being in the active management or control of any conflicting
business. The prohibition with respect to the executive family as well as
the judiciary on business is absolute. For members of Congress, there is
no prohibition. They can continue to do business. The only limitation
there is the duty to disclose potential conflict of interest with respect to
an intended legislation and, at most or at the very least, the members of
Congress are supposed to declare business interest in their SALN.
But for members of the Constitutional Commissions, while they are not
totally prohibited from engaging in business, there are two qualifications
for the prohibition to apply:
they must be in active management or control of the business
and
secondly, the business must have to be conflicting.
Common examples of this would be, if you are a Comelec Commisioner,
you must not be in the active management or control of the business
which is into the production, manufacturing or printing of any election
paraphernalia or equipment. So you cannot be a stockholder of
Smartmatic, the provider for the PICOS machines. Or not with the
printing press which would bid out or participate in the bidding for the
printing of the official ballots. For the Commissioner on Audit, he cannot
be engaged in accounting or auditing practice where he is the active
manager or has control over the business. Same prohibition on or
against financial interest with the government, GOCCs or
instrumentalities or subsidiaries. They could not have any financial
interest. Contracts which are entered into without any financial gain
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except by reason of the contract are not totally prohibited because what
is prohibited is taking advantage of the position for such pecuniary gain.
Now this case of Barro vs. Comelec. This is just a case involving a rule.
Apparently, the decisions of a division are reviewable by the Comelec en
banc. There are two divisions in a Comelec. If a decision is issued by a
division, you can have it reviewed by the Commission en banc. Can you
go directly to the Supreme Court under Rules 64 or 65? The answer is
yes, as held in the case of Barro vs. Comelec, the usual exemptions for
the exhaustion of administrative remedies; if the decision is rendered in
excess of its jurisdiction (patently incorrect), then you can go to the
Supreme court. There is no more remedy to exhaust.
Barro vs. Comelec
ISSUE: Whether or not the First Division of the COMELEC committed
grave abuse of discretion amounting to lack or excess of jurisdiction in
acting on the motion for reconsideration without elevating the same to
the COMELEC en banc, and in denying the motion for reconsideration.
HELD: Yes. It is settled that under Section 7, Article IX-A of the
Constitution, what may be brought to this Court on certiorari is the
decision, order or ruling of the COMELEC en banc. However, this rule
should not apply when a division of the COMELEC arrogates unto itself
and deprives the en banc of the authority to rule on a motion for
reconsideration, like in this case.
Section 3, Article IX-C of the Constitution provides for the procedure for
the resolution of election cases by the COMELEC, thus:
Sec. 3. The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in order to expedite
disposition of election cases, including pre-proclamation controversies.
All such election cases shall be heard and decided in division, provided
that motions for reconsideration of decisions shall be decided by the
Commission en banc.
In this case, the First Division of the COMELEC violated the
cited provisions of the Constitution and the COMELEC Rules of
Procedure when it resolved petitioner's motion for reconsideration of its
final Order dated November 25, 2008, which dismissed petitioners
appeal. By arrogating unto itself a power constitutionally lodged in the
Commission en banc, the First Division of the COMELEC exercised
judgment in excess of, or without, jurisdiction. Hence, the Order issued
by the First Division of the COMELEC dated January 9, 2009, denying
petitioners motion for reconsideration, is null and void.
AMENDMENT AND REVISION
Finally on the amending process. The amending process provides for
the modes to propose amendments or revisions to the Constitution. The
first is by Congress acting as a constituent assembly. The required vote
is 3/4. The second is by constitutional convention. There are two modes
by which constitutional convention can be had:
1. Congress by a vote of two-thirds will enact a
law calling for a constitutional convention,
and
2. A majority vote of congress. Congress will
submit the question to the electorate in a
referendum, whether or not there should be
constitutional convention.
The third is initiative and referendum. Although there is yet to be a law
because RA 6735, based on the ruling of Santiago vs. Comelec, is
insufficient for purposes of amending the Constitution. The present law
oN initiative and referendum is only good for initiative and referendum in
national or local legislation but not for purposes of amending the
constitution.
 CONSTITUTIONAL LAW REVIEW: IV-Manresa
THE MONTEJO LECTURES 2012-2013

The third mode, initiative and referendum, is only good for amendments.
The distinction between amendment and revision is in the nature of the
changes or operations in the current or existing Constitution. The talks of
amending the constitution has been revived, I think, because of the
popularity ratings of the President. It would be a good time to amend the
Constitution because of the swift term of the presidency. He is still in the
middle of his term. There are still three years. The fear that the purpose
of the amendments or revisions is to extend the term is somewhat
diminished. Unlike if the talks of charter change is very near the end of
the term of the incumbent president, then the usual suspicion is that
there would be extension of terms. They are trying to argue that, based
on the old discussions, it would be more of the economic provisions.
This is because the economic provisions are no longer consistent with
the current trend in the world trade or in relation of importation, or trade-
related considerations. And the other day, Senate President Enrile made
the public pronouncement that the term limitations in the current
Constitution shall not be affected or touched. But then again nobody
controls what changes are to be made.
Amendment and revision, distinguished. Amendment technically would
refer to changes or alterations, regardless of the number of the
provisions affected, provided that the same structure of government in
the current Constitution is maintained. As it is today, we have three
branches of government, there are three constitutional commissions. If
the changes in the existing Constitution will not alter the present set up,
despite the fact that Articles 1 to 80 are substantially changed in
phraseology, that would still be considered an amendment. But if the
change or alteration will substantially affect the present set-up as it is,
like change the type of government from presidential to a parliamentary
type, even if only one or two of the articles are affected, that would be a
revision. It is not the degree of alteration; it is the effect on the structure
of government which is the test in determining whether or not it is a
Revision or an Amendment.
Amendments can be had by three modes. Revision can be had only by
two modes. First, a constituent body where Congress with equal votes
may automatically become the body which will propose amendments or
revisions to the Constitution. Second, there is an election, either by two-
thirds vote or there is direct election but by a majority vote. There are
two exercises. The first would be on the question of a plebiscite and the
second would be the on the election of the members of the constitutional
convention. The suggestions in the past would be just to include the
election of members of the constitutional convention during a regular
election so as to avoid any additional and unnecessary expense.
Because all you have to do is put one blank there in the ballot, which is
automated now, for purposes of electing who should become the
representatives, or what they call as, the delegates to the constitutional
convention for purposes of charter change. But the proposal has been
shut down several times because it would seem to many that the
members of Congress would also like to be the ones in the constitutional
convention, either because they want it themselves by reason of term
limitation or this no other member in the family who could run for the said
position. It seems that in the Philippines elections is by birth right.
judiciary now, in case there is a abuse of discretion amounting to lack or
excess of authority, then the Supreme Court may be called upon to
review this. Nonetheless, even if that is the principle when there is abuse
of discretion, the extent of the power of the Supreme Court to review the
work or product of the constituent assembly or constitutional convention,
is only on the procedural matters. The substantive matters with respect
to what has been changed, whether it would affect the future
government or the future of the Philippines, will not be subject to judicial
review. That is within the sole prerogative of the constitutional
convention or constituent body.
But when the voting requirements, as required by the Constitution: three-
fourths votes (3/4) for Congress to constitute itself as a Constituent
Assembly, or two-thirds (2/3) vote for Congress to call for a Constitution
Convention, or the majority vote to ask the public whether they want a
Constitutional Convention those are matters within the competence of
the court to review. It would also include the ratification of the amended
or revised Constitution. There is supposed to be a time frame after its
submission to the Comelec for it to call upon the exercise of a plebiscite
where the affirmative votes must have to be more than the negative
ones for purposes of ratification. So those are the matters which are
within the competence of the Supreme Court to review. It is resolved in a
petition asking the Supreme Court whether those numbers, the vote
requirements required for the procedure for ratification, amendments or
revisions have been complied with. Substantive parts, again, cannot be
subject to judicial review.
[Linog, Han/ Calizo, Ruby]
When your life is a mess
When your heart has been crushed
And Youre wearing a frown
When you break down and cry
When youre terribly blue
Just comfort yourself
By saying
I still have God

Nature of the functions of the constitutional convention or

constitutional assembly

While generally they may involve members of Congress, the nature of

the functions of the constitutional convention is not legislative in
character. It is supposed to be an extension of the sovereign will of the
people to change their constitution. So they are actually exercising
delegated authority from the source of the sovereign power. So that is
the nature of their functions. They act in representation of the people
who would have wanted to alter or change their constitution.

The product of the constitutional convention or constitutional assembly is

generally not subject to review by the Supreme Court. These bodies are
considered as co-equal just like any other entity as may have been
provided by the Constitution. We generally follow the Principle of Co-
equality, that if the power is vested in one entity by the constitution, the
power is absolute and all-encompassing and all its decisions are final
and not subject to review. Because there is an expanded power of the
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