NOTE NO.

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IN CONSTITUTIONAL LAW REVIEW

Prof. Rolando B. Faller

POWER OF JUDICIAL REVIEW

1. The power of judicial review, like all powers granted by the Constitution, is
subject to certain limitations. Petitioner must comply with all the requisites for
judicial review before this court may take cognizance of the case. The requisites
are:
(1) there must be an actual case or controversy calling for the exercise of
judicial power;
(2) the person challenging the act must have the standing to question the
validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest
opportunity; and
(4) the issue of constitutionality must be the very lis mota of the case.(In re
Supreme Court Judicial Independence v. Judiciary Development Fund, UDK-
15143 (Resolution), [January 21, 2015])

2. The power of judicial review is inherent in the Supreme Court and other
lower courts by virtue of the doctrine of separation of power.

3. Sec. 1, Art. VIII is the express constitutional conferment of this power of

judicial review.

4. Functions of judicial review

a. Checking
b. Legitimating
c. Symbolic

I. ACTUAL CASE OR CONTROVERSY

1. One of the requirements for this court to exercise its power of

judicial review is the existence of an actual controversy. This means that there
must be "an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion." As emphasized by this court in Information
Technology Foundation of the Phils. v. Commission on Elections:

It is well-established in this jurisdiction that ". . . for a court

to exercise its power of adjudication, there must be an actual case
or controversy one which involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial resolution;
the case must not be moot or academic or based on extra-legal or
 other similar considerations not cognizable by a court of justice. . .
. [C]ourts do not sit to adjudicate mere academic questions to
satisfy scholarly interest, however intellectually challenging." The
controversy must be justiciable definite and concrete, touching on
the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of
a legal right, on the one hand, and a denial thereof on the other; that
is, it must concern a real and not a merely theoretical question or
issue. There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in nature,
as distinguished from an opinion advising what the law would be
upon a hypothetical state of facts.

2. For this court to rule on constitutional issues, there must first be a

justiciable controversy. Pleadings before this court must show a violation of an
existing legal right or a controversy that is ripe for judicial determination. In the
concurring opinion in Belgica v. Ochoa:

Basic in litigation raising constitutional issues is the

requirement that there must be an actual case or controversy. This
Court cannot render an advisory opinion. We assume that the
Constitution binds all other constitutional departments,
instrumentalities, and organs. We are aware that in the exercise of
their various powers, they do interpret the text of the Constitution
in the light of contemporary needs that they should address. A policy
that reduces this Court to an adviser for official acts by the other
departments that have not yet been done would unnecessarily tax
our resources. It is inconsistent with our role as final arbiter and
adjudicator and weakens the entire system of the Rule of Law. Our
power of judicial review is a duty to make a final and binding
construction of law. This power should generally be reserved when
the departments have exhausted any and all acts that would remedy
any perceived violation of right. The rationale that defines the extent
of our doctrines laying down exceptions to our rules on justiciability
are clear: Not only should the pleadings show a convincing violation of
a right, but the impact should be shown to be so grave, imminent, and
irreparable that any delayed exercise of judicial review or deference
would undermine fundamental principles that should be enjoyed by
the party complaining or the constituents that they legitimately
represent. (Emphasis supplied)

3. The reason for this requirement was explained in Angara v.

Electoral Commission:

Any attempt at abstraction could only lead to dialectics and

barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary
does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of

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 constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because
the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative
departments of the government.

Thus, there can be no justiciable controversy involving the

constitutionality of a proposed bill. The Court can exercise its power of judicial
review only after a law is enacted, not before.

Under the separation of powers, the Court cannot restrain Congress from
passing any law, or from setting into motion the legislative mill according to its
internal rules. Thus, the following acts of Congress in the exercise of its legislative
powers are not subject to judicial restraint: the filing of bills by members of
Congress, the approval of bills by each chamber of Congress, the reconciliation by
the Bicameral Committee of approved bills, and the eventual approval into law of
the reconciled bills by each chamber of Congress. Absent a clear violation of
specific constitutional limitations or of constitutional rights of private parties, the
Court cannot exercise its power of judicial review over the internal processes or
procedures of Congress. (In re Supreme Court Judicial Independence v. Judiciary
Development Fund, UDK-15143 (Resolution), [January 21, 2015])

4. A request for advisory opinion is not an actual case or controversy.

But an action for declaratory relief is proper for judicial determination. (PACU vs.
Secretary of Education, Oct. 31, 1955)

Mootness

An actual case or controversy involves a conflict of legal right, an opposite

legal claims susceptible of judicial resolution. It is "definite and concrete, touching
the legal relations of parties having adverse legal interest;" a real and substantial
controversy admitting of specific relief. The Solicitor General refutes the existence
of such actual case or controversy, contending that the present petitions were
rendered "moot and academic" by President Arroyo's issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable

controversy by virtue of supervening events (Province of Batangas vs. Romulo,
429 SCRA 736) so that a declaration thereon would be of no practical use or
value. ( Banco Filipino Savings vs. Tuason, Jr. 425 SCRA 129) Generally, courts
decline jurisdiction over such case (Royal Cargo vs. CAB, 421 SCRA 21) or
dismiss it on ground of mootness (Lacson vs. Perez, 357 SCRA 756).

The Court holds that President Arroyo's issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP 1017
was operative, the police officers, according to petitioners, committed illegal acts
in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they

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justify these alleged illegal acts? These are the vital issues that must be resolved
in the present petitions. It must be stressed that "an unconstitutional act is not
a law, it confers no rights, it imposes no duties, it affords no protection; it is
in legal contemplation, inoperative."

The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if:
first, there is a grave violation of the Constitution; (Province of Batangas vs.
Romulo)
second, the exceptional character of the situation and the paramount
public interest is involved; (Lacson vs. Perez)
third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; (Province of Batangas vs.
Romulo)and
fourth, the case is capable of repetition yet evading review. (Sanlakas vs.
Executive Secretary)

(David v. Macapagal-Arroyo, G.R. No. 171396, 171409, 171485, 171483, 171400,

171489, 171424, [May 3, 2006])

DAP Case (2014) – Araullo vs. Aquino III

It is true that Sec. Abad manifested during the January 28, 2014 oral
arguments that the DAP as a program had been meanwhile discontinued because
it had fully served its purpose, saying: "In conclusion, Your Honors, may I inform
the Court that because the DAP has already fully served its purpose, the
Administration's economic managers have recommended its termination to the
President. . . . ." The Solicitor General then quickly confirmed the termination of
the DAP as a program, and urged that its termination had already mooted the
challenges to the DAP's constitutionality,

A moot and academic case is one that ceases to present a justiciable

controversy by virtue of supervening events, so that a declaration thereon would
be of no practical use or value.

The Court cannot agree that the termination of the DAP as a program was
a supervening event that effectively mooted these consolidated cases. Verily, the
Court had in the past exercised its power of judicial review despite the cases being
rendered moot and academic by supervening events, like: (1) when there was a
grave violation of the Constitution; (2) when the case involved a situation of
exceptional character and was of paramount public interest; (3) when the
constitutional issue raised required the formulation of controlling principles to
guide the Bench, the Bar and the public; and (4) when the case was capable of
repetition yet evading review. Assuming that the petitioners' several submissions
against the DAP were ultimately sustained by the Court here, these cases would
definitely come under all the exceptions. Hence, the Court should not abstain from
exercising its power of judicial review.

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||| (Araullo v. Aquino III, G.R. No. 209287, 209135, 209136, 209155, 209164, 209260,
209442, 209517, 209569, [July 1, 2014])

II. STANDING

David v. Macapagal-Arroyo, G.R. No. 171396, 171409, 171485, 171483, 171400,

171489, 171424, [May 3, 2006])

Locus standi is defined as "a right of appearance in a court of justice on a

given question." In private suits, standing is governed by the "real-parties-in
interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure,
as amended. It provides that "every action must be prosecuted or defended in
the name of the real party in interest." Accordingly, the "real-party-in interest"
is "the party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit." Succinctly put, the plaintiff's
standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official action,
does so as a representative of the general public. He may be a person who is
affected no differently from any other person. He could be suing as a "stranger,"
or in the category of a "citizen," or 'taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make
out a sufficient interest in the vindication of the public order and the securing of
relief as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp v. Silk,
where it was held that the plaintiff in a taxpayer's suit is in a different category
from the plaintiff in a citizen's suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins: "In matter of mere public right, however . . . the
people are the real parties. . . It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With respect to taxpayer's
suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain
an action in courts to restrain the unlawful use of public funds to his injury
cannot be denied."

However, to prevent just about any person from seeking judicial

interference in any official policy or act with which he disagreed with, and thus
hinders the activities of governmental agencies engaged in public service, the
United State Supreme Court laid down the more stringent "direct injury" test in
Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that
for a private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.

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This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,
it held that the person who impugns the validity of a statute must have "a
personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result." The Vera doctrine was upheld in a litany
of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers'
Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese
League of the Philippines v. Felix.

However, being a mere procedural technicality, the requirement of locus

standi may be waived by the Court in the exercise of its discretion. This was done
in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where the
"transcendental importance" of the cases prompted the Court to act liberally.
Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court
resolved to pass upon the issues raised due to the "far-reaching implications" of
the petition notwithstanding its categorical statement that petitioner therein had
no personality to file the suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens, members of Congress, and
civic organizations to prosecute actions involving the constitutionality or validity
of laws, regulations and rulings.

Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the principle of
"transcendental importance." Pertinent are the following cases:

(1) Chavez v. Public Estates Authority, where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance
which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora, wherein the Court held that "given
the transcendental importance of the issues involved, the Court may relax
the standing requirements and allow the suit to prosper despite the lack of
direct injury to the parties seeking judicial review" of the Visiting Forces
Agreement;

(3) Lim v. Executive Secretary, while the Court noted that the petitioners may not
file suit in their capacity as taxpayers absent a showing that "Balikatan 02-01"
involves the exercise of Congress' taxing or spending powers, it reiterated its
ruling in Bagong Alyansang Makabayan v. Zamora, that in cases of
transcendental importance, the cases must be settled promptly and
definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by
this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements are met:

(1) the cases involve constitutional issues;

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(2) for taxpayers, there must be a claim of illegal disbursement of public funds or
that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators. STADIH

Significantly, recent decisions show a certain toughening in the Court's attitude

toward legal standing.

In Kilosbayan, Inc. v. Morato, the Court ruled that the status of Kilosbayan as a
people's organization does not give it the requisite personality to question the
validity of the on-line lottery contract, more so where it does not raise any issue
of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation
that public funds are being misused. Nor can it sue as a concerned citizen as it does
not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,

the Court reiterated the "direct injury" test with respect to concerned citizens'
cases involving constitutional issues. It held that "there must be a showing that
the citizen personally suffered some actual or threatened injury arising from the
alleged illegal official act."

In Lacson v. Perez, the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary, the Court ruled that only the petitioners who
are members of Congress have standing to sue, as they claim that the President's
declaration of a state of rebellion is a usurpation of the emergency powers of
Congress, thus impairing their legislative powers. As to petitioners Sanlakas,
Partido Manggagawa, and Social Justice Society, the Court declared them to be
devoid of standing, equating them with the LDP in Lacson.

III. EARLIEST OPPORTUNITY

1. The rule is that the constitutional question must be raised at the

earliest possible opportunity, such that if it is not raised in the pleadings, it cannot
be considered at the trial, if not considered at the trial, it cannot be considered on
appeal.

2. Thus, in Umali vs. Guigona, 305 SCRA 58 (1999), where the

constitutionality of the creation of the Presidential Commission Against Graft and
Corruption was raised only in the motion for reconsideration, the Supreme Court
held:

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 As regards the issue of constitutionality of the PCAGC, it was
only posed by petitioner in his motion for reconsideration before the
Regional Trial Court of Makati. It was certainly too late to raise the
said issue for the first time at such late stage of the proceedings
below.||| (Umali v. Guingona, Jr., G.R. No. 131124, [March 29, 1999],
365 PHIL 77-88)

3. Exceptions

This general rule, however, is subject to the following exceptions:

a. In criminal cases, the constitutional question can be raised at

any time in the discretion of the court.
b. In civil cases, the constitutional question can be raised at any
stage if it is necessary to the determination of the case itself.
c. In every case, except where there is estoppel, the
constitutional question can be raised at any stage if it involves
the jurisdiction of the court. (Tijam vs. Sibonghanoy, 23 SCRA
29; People vs. Munar, 53 SCRA 678)

IV. LIS MOTA (NECESSITY OF DECIDING CONSTITUTIONAL QUESTION

1. As a rule, the courts will not resolve the constitutionality of a law, if

the controversy can be settled on other grounds. (Ty vs. Trampe, 250 SCRA 500)
The policy of the courts is to avoid ruling on constitutional questions and to
presume that the acts of the political departments are valid, absent a clear and
unmistakable showing to the contrary. To doubt is to sustain. This presumption is
based on the doctrine of separation of powers. This means that the measure had
first been carefully studied by the legislative and executive departments and found
to be in accord with the Constitution before it was finally enacted and approved.
(Sps. Mirasol v. Court of Appeals, G.R. No. 128448, [February 1, 2001], 403 PHIL 760-
780)

2. In Arceta vs. Mangrobang, June 15, 2004, one of the issues

presented was whether the enactment of BP 22 was a valid exercise of police
power. The Supreme Court did not pass upon the constitutional issue presented
because:

Nor do we find the constitutional question herein raised to be

the very lis mota presented in the controversy below. Every law has
in its favor the presumption of constitutionality, and to justify its
nullification, there must be a clear and unequivocal breach of the
Constitution, and not one that is doubtful, speculative or
argumentative. We have examined the contentions of the
petitioners carefully; but they still have to persuade us that B.P. Blg.
22 by itself or in its implementation transgressed a provision of the
Constitution. Even the thesis of petitioner Dy that the present
economic and financial crisis should be a basis to declare the
Bouncing Checks Law constitutionally infirm deserves but scant

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 consideration. As we stressed in Lozano, it is precisely during trying
times that there exists a most compelling reason to strengthen faith
and confidence in the financial system and any practice tending to
destroy confidence in checks as currency substitutes should be
deterred, to prevent havoc in the trading and financial communities.
Further, while indeed the metropolitan trial courts may be burdened
immensely by bouncing checks cases now, that fact is immaterial to
the alleged invalidity of the law being assailed. The solution to the
clogging of dockets in lower courts lies elsewhere.||| (Arceta v.
Mangrobang, G.R. No. 152895, 153151, [June 15, 2004])

V. NOTICE REQUIREMENT

The purpose of the mandatory notice in Rule 64, Section 3 is to enable the
Solicitor General to decide whether or not his intervention in the action assailing
the validity of a law or treaty is necessary. To deny the Solicitor General such notice
would be tantamount to depriving him of his day in court. We must stress that,
contrary to petitioners' stand, the mandatory notice requirement is not limited to
actions involving declaratory relief and similar remedies. The rule itself provides
that such notice is required in "any action" and not just actions involving
declaratory relief. Where there is no ambiguity in the words used in the rule, there
is no room for construction. In all actions assailing the validity of a statute, treaty,
presidential decree, order, or proclamation, notice to the Solicitor General is
mandatory.||| (Sps. Mirasol v. Court of Appeals, G.R. No. 128448, [February 1, 2001],
403 PHIL 760-780)

VI. COURTS THAT CAN RESOLVE CONSTITUTIONAL ISSUES

Sec. 4 (1), Art. VIII of the Constitution vests upon the Supreme Court the
power to decide constitutional issues.

Section 5(2)(a), Article VIII of the Constitution grants other lower courts
the authority to rule on constitutional questions.

It is settled that Regional Trial Courts have the authority and jurisdiction to
consider the constitutionality of a statute, presidential decree, or executive order.
(Drilon vs. Lim)

We stress at the outset that the lower court had jurisdiction

to consider the constitutionality of Section 187, this authority being
embraced in the general definition of the judicial power to determine
what are the valid and binding laws by the criterion of their
conformity to the fundamental law. Specifically, BP 129 vests in the
regional trial courts jurisdiction over all civil cases in which the
subject of the litigation is incapable of pecuniary estimation, 4 even
as the accused in a criminal action has the right to question in his
defense the constitutionality of a law he is charged with violating and
of the proceedings taken against him, particularly as they contravene
the Bill of Rights. Moreover, Article X, Section 5(2), of the

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 Constitution vests in the Supreme Court appellate jurisdiction over
final judgments and orders of lower courts in all cases in which the
constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.

In the exercise of this jurisdiction, lower courts are advised to

act with the utmost circumspection, bearing in mind the
consequences of a declaration of unconstitutionality upon the
stability of laws, no less than on the doctrine of separation of powers.
As the questioned act is usually the handiwork of the legislative or
the executive departments, or both, it will be prudent for such
courts, if only out of a becoming modesty, to defer to the higher
judgment of this Court in the consideration of its validity, which is
better determined after a thorough deliberation by a collegiate body
and with the concurrence of the majority of those who participated
in its discussion. (Drilon v. Lim, G.R. No. 112497, [August 4, 1994])

VII. POLITICAL QUESTIONS

1. Political questions are those questions which under the Constitution

are (a) to be decided by the people in their sovereign capacity; or (b) in regard to
which full discretionary authority has been delegated to the legislative or executive
branch of the government. (Tanada vs. Cuenco, 1965)

2. Cases

a. Alejandro vs. Quezon, 26 Phil 83 (1924): Where the issue is the

suspension of a senator for disorderly conduct for assaulting a fellow
senator, the SC held that mandamus will not lie against the
legislative body, its members or its officers, to compel the
performance of duties purely legislative in their character which
therefore pertain to their legislative functions and over which they
have exclusive control.

b. Osmena vs. Pendatun, 109 Phil 863 (1960): The SC refused to

interpose itself in the matter of suspension of Osmena, Jr. for the
speech delivered on the floor of Congress. Whether he committed
“disorderly behavior” was something in regard to which full
discretionary authority had been given to the legislature.

c. Arroyo vs. De Venecia, 1997, where the SC held: It would be an

unwarranted invasion of the prerogative of a coequal department
for this Court either to set aside a legislative action as void because
the Court thinks the House has disregarded its own rules of
procedure, or to allow those defeated in the political arena to seek a
rematch in the judicial forum when petitioners can find their remedy
in that department itself. The Court has not been invested with a
roving commission to inquire into complaints, real or imagined, of

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 legislative skullduggery. It would be acting in excess of its power and
would itself be guilty of grave abuse of its discretion were it to do so.
The suggestion made in a case 4 may instead appropriately be made
here: petitioners can seek the enactment of a new law or the repeal
or amendment of R.A. No. 8240. In the absence of anything to the
contrary, the Court must assume that Congress or any House thereof
acted in the good faith belief that its conduct was permitted by its
rules, and deference rather than disrespect is due the judgment of
that body. (Arroyo v. De Venecia, G.R. No. 127255, [August 14, 1997],
343 PHIL 42-104)

d. Santiago vs. Guingona, 1998: Dispute involved is the selection of a

Senate Minority Leader whose position is not created by the
Constitution but by congressional rules.

VII. EFFECT OF DECLARATION OF UNCONSTITUTIONALITY

1. Art. 7, NCC: When the courts declare a law to be inconsistent with

the Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws of the Constitution.
It is understandable why it should be so, the Constitution being
supreme and paramount. Any legislative or executive act contrary to
its terms cannot survive.

2. Orthodox view: A unconstitutional act is not a law; it confers no

right; it imposes no duties; it affords no protection; it creates no
office, it is, in legal contemplation, inoperative, as if it had not been
passed. (Norton vs. Shelby)

3. Doctrine of operative fact

a. De Agbayani vs. PNB 38 SCRA 429

'The actual existence of a statute, prior to such a

determination [of unconstitutionality], is an operative fact
and may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects,
with respect to particular relations, individual and
corporate, and particular conduct, private and official.'"

b. Araullo vs. Aquino, 2014 (DAP Case)

The doctrine of operative fact recognizes the existence of

the law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced

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consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or executive
act but sustains its effects. It provides an exception to the
general rule that a void or unconstitutional law produces no
effect. But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act, but is resorted to only
as a matter of equity and fair play. It applies only to cases
where extraordinary circumstances exist, and only when
the extraordinary circumstances have met the stringent
conditions that will permit its application.

We find the doctrine of operative fact applicable to

the adoption and implementation of the DAP. Its application
to the DAP proceeds from equity and fair play. The
consequences resulting from the DAP and its related
issuances could not be ignored or could no longer be
undone.

To be clear, the doctrine of operative fact extends to

a void or unconstitutional executive act. The term executive
act is broad enough to include any and all acts of the
Executive, including those that are quasi-legislative and
quasi-judicial in nature.
(Araullo v. Aquino III, G.R. No. 209287, 209135, 209136,
209155, 209164, 209260, 209442, 209517, 209569, [July 1,
2014])

c. Araullo vs. Aquino (DAP Case), 2015

As a general rule, the nullification of an unconstitutional law

or act carries with it the illegality of its effects. However, in
cases where nullification of the effects will result in inequity
and injustice, the operative fact doctrine may apply. In so
ruling, the Court has essentially recognized the impact on
the beneficiaries and the country as a whole if its ruling
would pave the way for the nullification of the P144.378
Billions worth of infrastructure projects, social and
economic services funded through the DAP. Bearing in mind
the disastrous impact of nullifying these projects by virtue
alone of the invalidation of certain acts and practices under
the DAP, the Court has upheld the efficacy of such DAP-
funded projects by applying the operative fact doctrine. |||
(Araullo v. Aquino III, G.R. No. 209287 (Resolution), [February
3, 2015])

d. Hacienda Luisita vs. PARC, Nov. 22, 2011

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 The doctrine of operative act applies also to acts and
consequences that resulted from the reliance not only of a
law or executive act which is quasi-legislative in nature, but
also on decisions or orders of the executive department
which were later nullified. A decision of the President or of
the administrative agencies has to be complied with
because it has the force and effect of law. Prior to the
nullification or recall of such decision, it may have produced
acts and consequences in conformity to and in reliance of
said decision, which must be respected.

4. Partial Unconstitutionality

The general rule is that where part of a statute is void

as repugnant to the Constitution, while another part is valid,
the valid portion, if separable from the invalid, may stand
and be enforced. The presence of a separability clause in a
statute creates the presumption that the legislature
intended separability, rather than complete nullity, of the
statute. To justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume
that the legislature would have enacted it by itself if it had
supposed that it could not constitutionally enact the other.
Enough must remain to make a complete, intelligible, and
valid statute which carries out the legislative intent. The
void provisions must be eliminated without causing results
affecting the main purpose of the act in a manner contrary
to the intention of the legislature. The language used in the
invalid part of the statute can have no legal effect or efficacy
for any purpose whatsoever, and what remains must
express the legislative will independently of the void part,
since the court has no power to legislate.

The exception to the general rule is that when the

parts of a statute are so mutually dependent and connected,
as conditions, considerations, inducements, or
compensations for each other, as to warrant a belief that the
legislature intended them as a whole the nullity of one part
will vitiate the rest. In making the parts of the statute
dependent, conditional, or connected with one another, the
legislature intended the statute to be carried out as a whole
and would not have enacted it if one part is void, in which
case if some parts are unconstitutional, all the other
provisions thus dependent, conditional, or connected must
fall with them.
||| ( Separate Opinion of Justice Kapunan, Tatad v. Sec. of
Department of Energy, G.R. No. 124360, 127867 (Resolution),
[December 3, 1997])

13
VIII. RELATED DOCTRINES

1. Facial Challenge

a. The general rule is that a party can question the validity of a statute
only, if applied to him, it is unconstitutional.

b. The exception is the doctrine of facial challenge, but this is only

applicable to cases involving issues on freedom of expression. In this challenge,
the Court applies overbreadth doctrine, which permits a party to challenge the
validity of a statute even though, as applied to him, it is not unconstitutional, but
it might be if applied to others whose activities are constitutionally protected.
(Cruz vs. DENR, Dec. 6, 2000)

c. While facial challenge is only applicable to cases involving freedom

of expression, as an exception to this rule is Imbong vs. Ochoa, a case challenging
the constitutionality of RH law, where the SC held that facial challenge not only
applies to case of protected speech, but also on all other rights such as religious
freedom, freedom of the press and the right of the people to peaceably assemble
and petition for redress of grievances. This is so because under the expanded
jurisdiction of the SC under Article VIII, Sec. 1, the SC must determine if there is
grave abuse of discretion amounting to lack or excess of jurisdiction especially
because the petitioners alleged that the constitutional human rights to life, speech,
religion and other fundamental rights have been violated by the assailed
legislation. (Imbong vs. Ochoa, April 8, 2014)

2. Void for Vagueness

a. This doctrine holds that a law is facially invalid if men of common

intelligence must necessarily guess at its meaning and differ as to its application.
(David vs. Macapagal-Arroyo)

b. The test to determine whether a criminal statute is void for

uncertainty is whether the language conveys a sufficiently definite warning as to
the proscribed conduct when measured by common understanding and practice.
“A statute is not rendered uncertain and void merely because general terms are
used therein, or because of the employment of terms without defining them, much
less we do not have to define every word we use.” (Romualdez vs. Comelec, April
30, 2008).
NOTE 5
CONSTITUTIONAL LAW

Prof. Rolando B. Faller

RELEVANT NOTES
IN ARTICLE VIII (JUDICIARY)

1. Judicial jurisdiction

14
 It is not only the (a) power to determine, but the (2) power to enforce its
determination.

The power to control the execution of its decision is an essential aspect of

jurisdiction. (Echagaray vs. Sec. of Justice, 301 SCRA 96)

2. Congress may not alter the qualifications of Members of the Supreme Court
and the constitutional qualifications of other members of the Judiciary. But
Congress may alter the statutory qualifications of judges and justices of lower
courts. (Bernas)

3. Requirement of natural-born Filipino citizens pertain to the justices of the

SC, CA, Sandiganbayan and CTA. Other judges may either be natural born or
naturalized Filipino citizens (Sec. 7(2), Art. VIII)

a. Kilosbayan Foundation vs. Ermita (2007)

Petitioners invoke the Constitution:

Section 7 (1) of Article VIII of the 1987 Constitution provides

that "No person shall be appointed Member of the Supreme Court or
any lower collegiate court unless he is a natural-born citizen of the
Philippines." Sec. 2 of Art. IV defines "natural-born citizens as those
who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine Citizenship."

Petitioners maintain that even if it were granted that eleven

years after respondent Ong's birth his father was finally granted
Filipino citizenship by naturalization, that, by itself, would not make
respondent Ong a natural-born Filipino citizen.

xxx

It is clear, therefore, that from the records of this Court,

respondent Ong is a naturalized Filipino citizen. The alleged
subsequent recognition of his natural-born status by the Bureau of
Immigration and the DOJ cannot amend the final decision of the trial
court stating that respondent Ong and his mother were naturalized
along with his father. (Kilosbayan Foundation v. Ermita, G.R. No.
177721, [July 3, 2007], 553 PHIL 331-344)

4. Safeguards of judicial independence

(1)The SC is a constitutional body. It cannot be abolished nor may its

membership or the manner of its meetings be changed by mere
legislation. [Art. VIII, Sec. 4]
(2) The members of the judiciary are not subject to confirmation by
the CA.

15
(3) The members of the SC may not be removed except by
impeachment. [Art.IX,Sec.2]
(4) The SC may not be deprived of its minimum original and
appellate jurisdiction as prescribed in Art. X, Sec. 5 of the
Constitution. [Art. VIII, Sec. 2]
(5) The appellate jurisdiction of the SC may not be increased by law
without its advice and concurrence. [Art. VI, Sec. 30; Fabian v.
Desierto (1988)]
(6) The SC has administrative supervision over all lower courts and
their personnel. (art. VIII, sec. 6.)
(7) The SC has exclusive power to discipline judges of lower courts.
[Art. VIII, Sec. 11]
 The Ombudsman is duty bound to refer to the SC
all cases against judges and court personnel, so SC can determine first
whether an administrative aspect is involved. The Ombudsman
cannot bind the Court that a case before it does or does not have
administrative implications. [Caoibes v. Ombudsman (2001)]
(8) The members of the SC and all lower courts have security of
tenure, w/c cannot be undermined by a law reorganizing the
judiciary. [Id.]
(9) They shall not be designated to any agency performing quasi-
judicial or administrative functions. [Art. VIII, Sec. 12] 

Administrative functions are those thatinvolve regulation of conduct
of individuals or promulgation of rules to carry out legislative policy.
Judges should render assistance to a provincial committee of justice
(which is under DOJ supervision) only when it is reasonably
incidental to their duties. [In Re Manzano (1988)]
(10) The salaries of judges may not be reduced during their
continuance in office. [Art. VIII, Sec. 10]
(11) The judiciary shall enjoy fiscal autonomy. [Art. VIII, Sec. 3]
Fiscal autonomy means freedom from outside control. As the Court
explained in Bengzon v. Drilon: As envisioned in the Constitution, the
fiscal autonomy enjoyed by the Judiciary, the Civil Service
Commission and the Commission on Audit, the Commission on
Elections, and the Office of the Ombudsman contemplates a
guarantee of full flexibility to allocate and utilize their resources with
the wisdom and dispatch that their needs require. It recognizes the
power and authority to levy, assess and collect fees, fix rates of
compensation not exceeding the highest rates authorized by law for
compensation and pay plans of the government and allocate and
disburse such sums as may be provided by law or prescribed by
them in the course of the discharge of their functions. [In re:
Clarifying and Strengthening the Organizational Structure and Set-up
of the Philippine Judicial Academy, A.M. No. 01-1-04-SC]
(12) The SC alone may initiate rules of court. [Art. VIII, Sec. 5(5)]
(13) Only the SC may order the temporary detail of judges.[Art. VIII,
Sec. 5(3)]
(14) The SC can appoint all officials and employees of the
judiciary.[Art. VIII, Sec. 5(6)]

16
5. Judicial and Bar Council

a. Composition 
 Ex-officio members (art. VIII, sec. 8[1]) (1) Chief

Justice as ex-officio Chairman (2) Secretary of Justice 
 (3) One
representative of Congress

b. Regular members (art. VIII, sec. 8[1]) 
 (4) Representative of the

Integrated Bar (5) Professor of Law
(6) Retired member of the SC

(7) Representative of private sector

c. Secretary ex-officio (art. VIII, sec. 8[3]) – Clerk of Court of the SC, who
shall keep a record of its proceedings; not a member of the JBC.

e. Appointment, Tenure, Salary of JBC Members
Ex-officio members -

None apply since the position in the Council is good only while the
person is the occupant of the office.

f. Only ONE representative from Congress-Former practices of giving

1⁄2 vote or (more recently) 1 full vote each for the Chairmen of the
House and Senate Committees on Justice is invalid.

g. The framers intended the JBC to be composed of 7 members only.

Intent is for each co-equal branch of gov’t to have one rep. There is no
dichotomybetween Senate and HOR when Congress interacts with
other branches. But the SC not in a positionto say who should sit.
[Chavez v. JBC, (2012)]

h. Regular members [Art. VIII, Sec. 8(2)] - The regular members shall be
appointed by the President with the consent of the Commission on
Appointments. The term of the regular members is 4 years.

i. But the term of those initially appointed shall be staggered in the

following way so as to create continuity in the council: 
 (1) IBP
representative - 4 years (2) Law professor - 3 years (3) Retired
justice - 2 years (4) Private sector - 1 year
j. Primary function: Recommend appointees to the judiciary, May
exercise such other functions and duties as the SC may assign to it.
[Art. VIII, Sec. 8(5)]

Jardeleza vs. Sereno (2014)

a. Supreme Court has supervisory power over JBC

As a meaningful guidepost, jurisprudence provides the definition and scope

of supervision. It is the power of oversight, or the authority to see that subordinate
officers perform their duties. It ensures that the laws and the rules governing the
conduct of a government entity are observed and complied with. Supervising
officials see to it that rules are followed, but they themselves do not lay down such
rules, nor do they have the discretion to modify or replace them. If the rules are

17
not observed, they may order the work done or redone, but only to conform to such
rules. They may not prescribe their own manner of execution of the act. They have
no discretion on this matter except to see to it that the rules are followed.

Based on this, the supervisory authority of the Court over the JBC covers the
overseeing of compliance with its rules. In this case, Jardeleza's principal
allegations in his petition merit the exercise of this supervisory authority.

b. Right to due process can be invoked by an applicant for a

judicial post

The Court, however, could not accept, lock, stock and barrel, the argument
that an applicant's access to the rights afforded under the due process clause is
discretionary on the part of the JBC. While the facets of criminal and administrative
due process are not strictly applicable to JBC proceedings, their peculiarity is
insufficient to justify the conclusion that due process is not demandable.

In JBC proceedings, an aspiring judge or justice justifies his qualifications

for the office when he presents proof of his scholastic records, work experience
and laudable citations. His goal is to establish that he is qualified for the office
applied for. The JBC then takes every possible step to verify an applicant's track
record for the purpose of determining whether or not he is qualified for
nomination. It ascertains the factors which entitle an applicant to become a part of
the roster from which the President appoints.

The fact that a proceeding is sui generis and is impressed with discretion,
however, does not automatically denigrate an applicant's entitlement to due
process. It is well-established in jurisprudence that disciplinary proceedings
against lawyers are sui generis in that they are neither purely civil nor purely
criminal; they involve investigations by the Court into the conduct of one of its
officers, not the trial of an action or a suit. Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to account for his
actuations as an officer of the Court with the end in view of preserving the purity
of the legal profession and the proper and honest administration of justice by
purging the profession of members who, by their misconduct, have proved
themselves no longer worthy to be entrusted with the duties and responsibilities
pertaining to the office of an attorney. In such posture, there can be no occasion to
speak of a complainant or a prosecutor. On the whole, disciplinary proceedings are
actually aimed to verify and finally determine, if a lawyer charged is still qualified
to benefit from the rights and privileges that membership in the legal profession
evoke.

6. De Castro vs. JBC (2010)

a. Prohibition on midnight appointment does not apply to

members of the Supreme Court and other appointments in the judiciary.

As can be seen, Article VII is devoted to the Executive

Department, and, among others, it lists the powers vested by the

18
 Constitution in the President. The presidential power of
appointment is dealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and

defines the duties and qualifications of Members of the Supreme
Court, among others. Section 4 (1) and Section 9 of this Article are
the provisions specifically providing for the appointment of
Supreme Court Justices. In particular, Section 9 states that the
appointment of Supreme Court Justices can only be made by the
President upon the submission of a list of at least three nominees by
the JBC; Section 4 (1) of the Article mandates the President to fill the
vacancy within 90 days from the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained

in Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in
Section 15, Article VII as being equally applicable to the appointment
of Members of the Supreme Court in Article VIII itself, most likely in
Section 4 (1), Article VIII. That such specification was not done only
reveals that the prohibition against the President or Acting President
making appointments within two months before the next
presidential elections and up to the end of the President's or Acting
President's term does not refer to the Members of the Supreme
Court.

Although Valenzuela came to hold that the prohibition

covered even judicial appointments, it cannot be disputed that the
Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the
JBC by then Senior Associate Justice Florenz D. Regalado of this
Court, a former member of the Constitutional Commission, about the
prohibition not being intended to apply to the appointments to the
Judiciary, which confirmation Valenzuela even expressly mentioned,
should prevail. (De Castro v. Judicial and Bar Council, G.R. No. 191002,
191032, 191057, 10-2-5-SC, 191149, 191342, 191420, [March 17,
2010], 629 PHIL 629-779)

7. Supreme Court

a. COMPOSITION OF THE SUPREME COURT 
 (1) Chief Justice and 14

Associate Justices
 (2) May sit en banc or in divisions of three, five, or seven

b. Members
 (3) Vacancy shall be filled within 90 days from the occurrence
thereof

c. EN BANC AND DIVISION CASES

19
 En banc–cases decided with the concurrence of a majority of the Members who
actually took part in the deliberations and voted.

d. Instances when the SC sits en banc:

(A) Those involving the Constitutionality, application, or operation of1) Treaty


 (2) Orders
 (3) International or executive agreement (4) Law (5) Presidential
decrees (6) Instructions
 (7) Proclamations
 (8) Ordinances (9) Other regulations



(B) Exercise of the power to Discipline judges of lower courts, or order their
dismissal [Art. VIII, Sec. 11] Discipline of judges can be done by a division,

BUT En Banc decides cases for dismissal, disbarment, suspension for more than
1 year, or fine of more than P10,000. [People v. Gacott (1995)]

(C) Cases or matters heard by a Division where the required number of votes
to decide or resolve (the majority of those who took part in the deliberations on
the issues in the case and voted thereon, and in no case less than 3 members) is not
met [Art. VIII, Sec. 4(3)]

(D) Modifying or reversing a doctrine or principle of law laid down by the court
in a decision rendered en banc or in division [Art. VIII, Sec. 4(3)]

(E) Actions instituted by citizen to test the validity of a proclamation of Martial

law or suspension of the privilege of the writ [Art. VIII, Sec. 18]

(F) When sitting as Presidential Electoral Tribunal [Art. VIII, Sec. 4, par. 7]

(G) All Other cases which under the Rules of Court are re- quired to be heard
by the SC en banc. [Art. VIII, Sec. 4(2)]

e. Requirement and Procedures in Divisions


(A) Cases decided with the concurrence of a majority of the Members who
actually took part in the deliberations and voted
(B) In no case without the concurrence of at least threeof 
 such Members


(C) When required number is not obtained, the case shall 
 be decided en
banc.

(1) Cases v. Matters. Only cases are referred to En Banc 
for decision
when required votes are not obtained.
(2) Cases are of first instance; mattersare those after the first
instance, e.g. MRs and post-decision 
 motions.

(3) Failure to resolve a motion because of a tie does not 
leave case
undecided. MR is merely lost. [See Fortrich v. Corona (1999)] 


20
 f. The SC En Banc is not an appellate court vis-à-vis its Divisions. The
only constraint is that any doctrine or principle of law laid down by the Court,
either rendered en banc or in division, may be overturned or reversed only by the
Court sitting en banc. [Firestone Ceramics v. CA, (2001)]

8. Rule-making power of the Supreme Court

a. Rules promulgated by the SC must not diminish, increase, modify

substantive rights.

i. Contrary to private respondent's contention, the

requirement that before a separate civil action may be brought it
must be reserved does not impair, diminish or defeat substantive
rights, but only regulates their exercise in the general interest of
orderly procedure. The requirement is merely procedural in nature.
For that matter the Revised Penal Code, by providing in Art. 100 that
any person criminally liable is also civilly liable, gives the offended
party the right to bring a separate civil action, yet no one has ever
questioned that rule that such action must be reserved before it may
be brought separately.

Indeed, the requirement that the right to institute actions

under the Civil Code separately must be reserved is not incompatible
with the independent character of such actions. There is a difference
between allowing the trial of civil actions to proceed independently
of the criminal prosecution and requiring that, before they may be
instituted at all, a reservation to bring them separately must be
made. Put in another way, it is the conduct of the trial of the civil
action — not its institution through the filing of a complaint — which
is allowed to proceed independently of the outcome of the criminal
case. (Maniago v. Court of Appeals, G.R. No. 104392, [February 20,
1996], 324 PHIL 34-50)

ii. A transfer by the Supreme Court, in the exercise of its rule-

making power, of pending cases involving a review of decisions of
the Office of the Ombudsman in administrative disciplinary actions
to the Court of Appeals which shall now be vested with exclusive
appellate jurisdiction thereover, relates to procedure only. This is so
because it is not the right to appeal of an aggrieved party which is
affected by the law. That right has been preserved. Only the
procedure by which the appeal is to be made or decided has been
changed. The rationale for this is that no litigant has a vested right in
a particular remedy, which may be changed by substitution without
impairing vested rights, hence he can have none in rules of
procedure which relate to the remedy. Furthermore, it cannot be
said that the transfer of appellate jurisdiction to the Court of Appeals
in this case is an act of creating a new right of appeal because such
power of the Supreme Court to transfer appeals to subordinate

21
 appellate courts is purely a procedural and not a substantive power.
Neither can we consider such transfer as impairing a vested right
because the parties have still a remedy and still a competent tribunal
to administer that remedy. Thus, it has been generally held that rules
or statutes involving a transfer of cases from one court to another,
are procedural and remedial merely and that, as such, they are
applicable to actions pending at the time the statute went into effect
or, in the case at bar, when its invalidity was declared. Accordingly,
even from the standpoint of jurisdiction ex hypothesi, the validity of
the transfer of appeals in said cases to the Court of Appeals can be
sustained. (Fabian v. Desierto, G.R. No. 129742, [September 16,
1998], 356 PHIL 787-811)

iii. [T]he time-bar under Section 8 of Rule 117 is akin to a special

procedural limitation qualifying the right of the State to prosecute
making the time-bar an essence of the given right or as an inherent
part thereof, so that the lapse of the time-bar operates to extinguish
the right of the State to prosecute the accused. The time-bar under
the new rule does not reduce the periods under Article 90 of the
Revised Penal Code, a substantive law. It is but a limitation of the
right of the State to revive a criminal case against the accused after
the Information had been filed but subsequently provisionally
dismissed with the express consent of the accused. Upon the lapse of
the timeline under the new rule, the State is presumed, albeit
disputably, to have abandoned or waived its right to revive the case
and prosecute the accused. The dismissal becomes ipso facto
permanent. He can no longer be charged anew for the same crime or
another crime necessarily included therein. He is spared from the
anguish and anxiety as well as the expenses in any new indictments.
The State may revive a criminal case beyond the one-year or two-
year periods provided that there is a justifiable necessity for the
delay. By the same token, if a criminal case is dismissed on motion of
the accused because the trial is not concluded within the period
therefor, the prescriptive periods under the Revised Penal Code are
not thereby diminished. (People v. Lacson, G.R. No. 149453, [April 1,
2003], 448 PHIL 317-463)

7. Memorandum Decisions

a. Fransisco vs. Permskul, (1989)

The memorandum decision, to be valid, cannot incorporate

the findings of fact and the conclusions of law of the lower court
only by remote reference, which is to say that the challenged
decision is not easily and immediately available to the person
reading the memorandum decision. For the incorporation by
reference to be allowed, it must provide for direct access to the
facts and the law being adopted, which must be contained in a
statement attached to the said decision. In other words, the

22
 memorandum decision authorized under Section 40 of B.P. Blg. 129
should actually embody the findings of fact and conclusions of
law of the lower court in an annex attached to and made an
indispensable part of the decision.

It is expected that this requirement will allay the suspicion

that no study was made of the decision of the lower court and that
its decision was merely affirmed without a proper examination of
the facts and the law on which it is based. The proximity at least of
the annexed statement should suggest that such an
examination has been undertaken. It is, of course, also
understood that the decision being adopted should, to begin
with, comply with Article VIII, Section 14 as no amount of
incorporation or adoption will rectify its violation.

The Court finds necessary to emphasize that the

memorandum decision should be sparingly used lest it become an
addictive excuse for judicial sloth. It is an additional condition for
the validity that this kind of decision may be resorted to only in
cases where the facts are in the main accepted by both parties
and easily determinable by the judge and there are no doctrinal
complications involved that will require an extended
discussion of the laws involved. The memorandum decision may
be employed in simple litigations only, such as ordinary collection
cases, where the appeal is obviously groundless and deserves no
more than the time needed to dismiss it.
xxx xxx xxx

Henceforth, all memorandum decisions shall comply with

the requirements herein set forth both as to the form
prescribed and the occasions when they may be rendered. Any
deviation will summon the strict enforcement of Article VIII,
Section 14 of the Constitution and strike down the flawed
judgment as a lawless disobedience.

b. The constitutional mandate that, "no decision shall be rendered by

any court without expressing therein clearly and distinctly the facts
and the law on which it is based," does not preclude the validity
of "memorandum decisions", which adopt by reference the
findings of fact and conclusions of law contained in the decisions of
inferior tribunals. In fact, in Yao v. Court of Appeals, this Court has
sanctioned the use of "memorandum decisions", a specie of
succinctly written decisions by appellate courts in accordance with
the provisions of Section 40, B.P. Blg. 129, as amended, on the
grounds of expediency, practicality, convenience and docket
status of our courts. This Court likewise declared that
"memorandum decisions" comply with the constitutional mandate.
||| (Solid Homes, Inc. v. Laserna, G.R. No. 166051, [April 8, 2008], 574
PHIL 69-89)

23
 NOTE NO. 2
CONSTITUTIONAL LAW REVIEW

Prof. Rolando B. Faller

NATIONAL TERRITORY
DECLARATION OF PRINCIPLES AND STATE POLICIES
AND CITIZENSHIP

I. NATIONAL TERRITORY

1. Scope of National Territory

a. Philippine Archipelago
b. All other territories over which the Philippines has sovereignty or
jurisdiction

24
 c. Territorial sea, seabed, subsoil, insular shelves and other submarine
areas corresponding to (a) and (b).
d. (a) and (b) also consist of terrestrial, fluvial and aerial domains

2. Archipelagic doctrine - it is the principle whereby the body of water studded

with islands, or the islands surrounded with water, is viewed as a unity of
islands and waters together forming one integrated unit.

1987 Constitution: The waters around between and connecting the islands
of the archipelago, regardless of their breadth and dimensions, form part of
internal waters of the Philippines.

3. Important définitions

a. archipelagic waters - refers to areas enclosed as internal waters by using

the baseline method.
b. territorial sea - is an adjacent belt of sea with a breadth of 12 nautical
miles measured from the baselines of a state and over which the state
has sovereignty. The general rule is that ships (not aircrafts) of all States
enjoy the right of innocent passage through the territorial sea; it is
understood, however, that the passage must be continuous and
expeditious, except in cases of force majeure.
c. contiguous zone - is a zone contiguous to the territorial sea and extends
up to 12 nautical miles from the territorial sea and over which the
coastal state may exercise control necessary to prevent infringement of
its customs, fiscal, immigration or sanitary laws and regulations within
the territory or territorial sea.
d. exclusive economic zone - extends 200 nautical miles from baseline,
where the coastal state has the right to explore, exploit, conserve and
manage the natural resources of the seabed, subsoil, and superjacent
waters. Other states are prohibited from using the zone except for
navigation and overflight, laying of submarine cables and pipeline, and
other lawful uses related to navigation and communication.

Purposes:

a. Sovereign rights to explore, exploit, conserve and manage the

natural resources, living or non-living, renewable or non-renewable of
the seabed, subsoil, and super-adjacent waters. Economic exploitation
and exploration of the resources of the zone such as the production of
energy from the water, currents and winds.

b. Exclusive rights and jurisdiction with respect to the establishment

and utilization of artificial islands, off-shore terminals, installations and
structures; the preservation of the marine environment, including the
prevention and control of pollution and scientific research.

c. Such other rights as are recognized by international law.

25
 d. Other states are prohibited from using the zone to:

i. Explore or exploit any resources;

ii. Carry out any search, excavation or drilling operations;

iii. Conduct any research;

iv. Construct or operate any artificial island, off-shore terminal,

installation, or other structure;

v. Perform any activity which is contrary to, or in derogation of, the

sovereign rights and jurisdiction herein provided.

e. Other states are allowed to use the zone for:

i. Navigation and overflight;

ii. Laying of submarine cable and pipelines;
iii. Other lawful uses related to navigation and communication.

In case of overlapping of EEZs, the common boundaries are to be

detemined by (i) agreement and (ii) international rules on delimitations.

e. continental shelf - comprises the (i)seabed and subsoil of the submarine

areas adjacent to the coastal state but outside the territorial sea, to a
depth of 200 meters, or beyond that limit, where the depth allows
exploitation and (b) the seabed and subsoil of areas adjacent to the
islands. The coastal State has the right to explore and exploit its natural
resources, to erect installations needed, and to erect a safety zone over
its installations with a radius of 500 meters.
f. Straight baseline method - drawn connecting selected points on the
coast without departing to any appreciable extent from the general
direction of the coast.

4. Magalona vs. Ermita (2011) - RA 9552 or the Baselines Law are nothing
but statutory mechanisms for UNCLOS III members to delimit with precision
the extent of their maritime zones and continental shelves. It did not delimit
or change our National Territory under Article I of the Constitution or give
up our claim over KIG and other areas.

II. DECLARATION OF PRINCIPLES AND STATE POLICIES

1. Self-executing and non-self executing provisions

a. Self-executing provisions are provisions which are complete in themselves

and do not need enabling legislation for their operation; judicially
enforceable per se. “The nature and extent of the right conferred and the

26
 liability imposed are fixed by the constitution itself (Manila Prince Hotel vs.
GSIS, 1997)

b. Non-self executing provisions are merely “laying down a general principle

(Manila Prince, supra)

General presumption: all provisions of the Constitution are self-executing.

Exception: Statements of general principles, such as those in Art. II are

usually not self-executing (Espina vs. Zamora, 2010)

Exceptions to the exception:

i. right to a balanced and healthful ecology (Oposa vs. Factoran)

ii. right to information (Legaspi vs. CSC, 1987)
iii. right to health (Imbong vs. Ochoa)
iv. Filipino first policy (Manila Prince Hotel vs. GSIS)

Principles are binding rules which must be observed in the conduct of the
government. Policies are guidelines for the orientation of the state.

Note: The distinction between principles and polices is of little significance

because not all of the six “principles” are self-executory and some of the “policies”
already anchor justiciable rights.

2. Sec, 1 – The Philippines is a democratic and republican State.

Sovereignty resides in the people and all government authority emanates
from them.

a. Republican state – is a state wherein all government authority emanates

from the people and is exercised by representatives chosen by the people.

b. Essential features of republicanism – the essence of republicanism is

representation and renovation. The citizenry selects a corps of public
functionaries who derive their mandate from the people and act on their behalf,
serving for a limited period only, after which, they are replaced or retained at the
option of the principal.

c. Manifestations of republicanism

i. Ours is a government of laws, and not of men (Villavicencio vs. Lucban, 39

Phil. 778)
ii. Rule of majority (plurality in the elections)
iii. Accountability of public officers
iv. Bill of Rights
v. Legislature cannot pass irrepealable laws
vi. Separation of powers

27
 d. “Government of the Philippines” is defined as: The corporate governmental
entity through which the functions of government are exercised throughout the
Philippines, including (1) the various arms through which political authority is
made effective in the Philippines, whether pertaining to: (a) the autonomous
regions, (b) the provincial, city, municipal, or barangey subdivisions, or (c) other
forms of local government. [Sec. 2(1), Administrative Code]

e. “Government” is that institution or aggregate of institutions by which an

independent society makes and carries out those rules of action which are
necessary to enable men to live in a social state or which are imposed upon the
people forming that society by those who possess the power or authority of
prescribing them. [US v. Dorr (1903)]

f. DE JURE AND DE FACTO GOVERNMENTS

i. De jure government (1) Has rightful title but (2) no power or

control, either because this has been withdrawn from it, or because
it has not yet actually entered into the exercise thereof. [In re Letter
of Associate Justice Puno, (1992)]

ii. De facto government Government of fact, that is, it actually exercises

power or control without legal title. [Co Kim Cham v. Valdes,
(1945)
(1) The gov’t that gets possession and control of, or usurps, by force
or by the voice of the majority, the rightful legal gov’t and maintains
itself against the will of the latter.
(2) That established as an independent gov’t by the inhabitants of a
country who rise in insurrection against the parent state.
(3) That which is established and maintained by military forces who
invade and occupy a territory of the enemy in the course of war, and
w/c is denominated as a gov’t of paramount force, like the Second
Republic established by the Japanese belligerent.

g. The legitimacy of the Aquino government is not a justiciable matter. It

belongs to the realm of politics where only the people of the Philippines are the
judge. And the people have made the judgment; they have accepted the
government of President Corazon C. Aquino which is in effective control of the
entire country so that it is not merely a de facto government but in fact and law a
de jure government. Moreover the community of nations has recognized the
legitimacy of the present government. All the eleven members of this Court as
reorganized have sworn to uphold the fundamental law of the Republic under her
government. (In re Bermudez (1986) citing Lawyers League for a Better Philippines
v. Aquino (1986)]

h. In the cited cases [Lawyers League for a Better Philippines and/or Oliver
A. Lozano v. President Corazon C. Aquino, et al], we held that the government of
former President Aquino was the result of a successful revolution by the sovereign
people, albeit a peaceful one. No less than the Freedom Constitution declared that
the Aquino government was installed through a direct exercise of the power of the

28
Filipino people "in defiance of the provisions of the 1973 Constitution, as
amended."

i. It is familiar learning that the legitimacy of a government sired by a

successful revolution by people power is beyond judicial scrutiny for that
government automatically orbits out of the constitutional loop. In checkered
contrast, the government of respondent Arroyo is not revolutionary in character.
The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.
In her oath, she categorically swore to preserve and defend the 1987 Constitution.
Indeed, she has stressed that she is discharging the powers of the presidency
under the authority of the 1987 Constitution.

j. In fine, the legal distinction between EDSA People Power I EDSA People
Power II is clear. EDSA I involves the exercise of the people power of revolution
which overthrew the whole government. EDSA II is an exercise of people power of
freedom of speech and freedom of assembly to petition the government for
redress of grievances which only affected the office of the President. EDSA I is
extra- constitutional and the legitimacy of the new government that resulted from
it cannot be the subject of judicial review, but EDSA II is intra-constitutional and
the resignation of the sitting President that it caused and the succession of the Vice
President as President are subject to judicial review. EDSA I presented a political
question; EDSA II involves legal questions. xxx

k. Even if the petitioner can prove that he did not resign, still, he cannot
successfully claim that he is a President on leave on the ground that he is merely
unable to govern temporarily. That claim has been laid to rest by Congress and the
decision that respondent Arroyo is the de jure, president made by a co-equal
branch of government cannot be reviewed by this Court. [Estrada v. Desierto /
Estrada v. Arroyo (2001)]

3. Sec. 2 (doctrine of incorporation)

a. What it renounces is aggressive war as an instrument of national

policy. It does not renounce defensive war. Also, as a member of the UN, the
Philippines shall “refrain in its international relations from the use of threat or
force against the territorial integrity or political independence of any state, or in
any manner inconsistent with the purposes of the UN (Art. 2(4), UN Charter)

b. Adherence to “amity with all nations” does not mean automatic

diplomatic recognition of all nations, as diplomatic recognition remains a matter
of executive discretion.

c. The doctrine of incorporation applies only to customary laws, or to

treaties which have become part of customary law (Poe vs. Comelec, 2016)
or those generally accepted principles of international law such as pacta sunt
servanda, res judicata, piracy, genocide prescription, Treaties and other
international conventions which require ratification and concurrence under the
Constitution are not covered by the doctrine.

29
 “That the Philippines is not a party to the 1930 Hague Convention
nor to the 1961 Convention on the Reduction of Statelessness does
not mean that their principles are not binding. While the Philippines
is not a party to the 1930 Hague Convention, it is a signatory to the
Universal Declaration on Human Rights, Article 15 (1) of which 131
effectively affirms Article 14 of the 1930 Hague Convention. Article
2 of the 1961 "United Nations Convention on the Reduction of
Statelessness" merely "gives effect" to Article 15 (1) of the UDHR. In
Razon v. Tagitis, this Court noted that the Philippines had not
signed or ratified the "International Convention for the Protection
of All Persons from Enforced Disappearance." Yet, we ruled that the
proscription against enforced disappearances in the said
convention was nonetheless binding as a "generally accepted
principle of international law." Razon v. Tagitis is likewise notable
for declaring the ban as a generally accepted principle of
international law although the convention had been ratified by only
sixteen states and had not even come into force and which needed
the ratification of a minimum of twenty states. Additionally, as
petitioner points out, the Court was content with the practice of
international and regional state organs, regional state practice in
Latin America, and State Practice in the United States. |(Poe-
Llamanzares v. Commission on Elections, G.R. Nos. 221697 &
221698-700, [March 8, 2016])

d. Custom or customary international law means “a general and

consistent practice of states followed by them from a sense of legal obligation.

i. It is necessary that the custom be (i) prevailing

practice by the number of States; (ii) repeated over a considerable
period of time or State practice, and (iii) attended by opinio juris, or
a sense of legal obligation.

ii. Under the doctrine of incorporation, it provides that the

state adopts the generally accepted principles of international law
as part of the law of the land. In the Philippines, Sec. 2, Art. II of the
Constitution accepts this doctrine of incorporation. With respect to
treaties, they become part of Philippine legal system when
concurred in by the Senate in accordance with Sec. 21, Art. VII of
the Constitution.

e. In case of conflict between international law and domestic law,

which will prevail?

i. If the case goes to an international tribunal, it is an

established principle that the state may not plead its own law
as an excuse for failure to comply with international law. (Art.
13, Declaration of Rights and Duties adopted by the
International Law Commission in 1949).

30
 ii. If the conflict comes before a domestic law, domestic courts
are bound to apply domestic laws.

If the conflict is with the Constitution, uphold the Constitution. But see
Tanada vs. Angara, G.R. No. 118295, May 2, 1997, where a challenge to the Senate
ratification of the GATT Treaty on the ground that the constitutional provision on
declaration of policy on economic nationalism was violated by the parity
provisions of the treaty, the Supreme Court held that principles and state policies
enumerated in Articles II and Article XII of the Constitution are not “self-executing
provisions” and they do not embody judicially enforceable constitutional rights
but guidelines for legislation.

4. Sec. 3 (supremacy of civilian authority)

a. The supremacy of civilian authority over the military is implicit in a

republican system where governmental authority emanates from the people.

b. The PNP is not covered by Sec, 3, because it is separate and distinct

from the AFP (2003 Bar; Manalo vs. Sistoza, 312 SCRA 239

c. The phrase “protector of the people” in referring to the AFP was not
meant to be an assertion of the political role of the military. The intent of said
phrase was rather to make it as corrective to military abuses experienced during
martial rule.

d. The supremacy of civilian rule over the military is ensured by:

i. The installation of the President, the highest civilian authority, as

the commander-in-chief of the military;
ii. The requirement that members of the AFP swear to uphold and
defend the Constitution, which is the fundamental law of the civil
government;
iii. The professionalization of the service and the 
strengthening of the
patriotism and nationalism, and respect for human rights, of the
military;
iv. Insulation of the AFP from partisan politics, (v) prohibition against
the appointment to a civil position;
v. Compulsory retirement of officers (no over- staying of officers), so
as to avoid propagation of power);
vi. A 3-year limitation on the tour of duty of the Chief of Staff, which
although extendible in case of emergency by the President, depends
on Congressional declaration of emergency;
vii. Requirement of professional recruitment, so as to avoid any regional
clique from forming within the AFP; as well as
viii. The establishment of a police force that is not only 
civilian
character but also under the local executives.

5. Secs. 4 and 5 (Government as protector of the people)

31
a. Note the emphasis on the government as servant of the people, rather
than vice-versa.

Note also that the people may by law are required to render "personal" (not
proxy) military or civil service.

b. Section 5 is not a self-executing provision as it is merely a guideline for

legislation. (Kilosbayan vs. Morato)

c. Unlike the US Constitution, the right to bear arms is a statutory, not a

constitutional right. The license to carry a firearm is neither a property nor a
property right. Neither does it create a vested right. Even if it were a property
right, it cannot be considered absolute as to be placed beyond the reach of police
power. The maintenance of peace and the constitutional duties of the State, and
the right to bear arms is to be construed in connection and in harmony with these
constitutional duties. (Chavez vs. Romulo, 2004)

6. Sec. 6 (Separation of Church and State)

a. It is not the only the State that is prohibited from interfering in purely
ecclesiastical affairs; the Church is likewise barred from meddling in purely
secular matters.
b. Separation of Church and State is reinforced by the following provisions:

i. freedom of religion (non-establishment clause), (Sec. 5, Art. III)

ii. religious sects cannot be registered as a political party (Sec. 2(5),
Art. IX-C)
iii. No sectoral representatives from religious sector (Sec. 5(2), Art. VI)
iv. Prohibition against appropriation against sectarian benefit. (Sec.
29(2), Art. VI)

c. Exceptions to this doctrine/Provisions that do not conflict with separation of

church and state

i. Exemption from taxation for churches, parsonages, etc. actually,

directly and exclusively used for religious purposes (Sec. 28(3), Art.
VI)
ii. Public money may be paid to a priest, minister, preacher or
dignitary assigned to the armed forces or any penal institution or
government orphanage or leprosarium (Sec. 29(2), Art. VI)
iii. Optional religious instruction for public elementary and high school
students. (Sec. 3(3), Art. XIV)
iv. No requirement of Filipino ownership for educational institutions
established by religious groups and mission boards. (Sec. 4(2), Art.
XIV)

d, Verily, the principle of separation of Church and State is based on mutual

respect. Generally, the State cannot meddle in the internal affairs of the church,
much less question its faith and dogmas or dictate upon it. It cannot favor one

32
religion and discriminate against another. On the other hand, the church cannot
impose its beliefs and convictions on the State and the rest of the citizenry. It
cannot demand that the nation follow its beliefs, even if it sincerely believes that
they are good for the country. (Spouses Imbong v. Ochoa, Jr., G.R. No. 204819,
204934, &, 204988, 205003, 205043, 205138, 205478, 205491, 205720,
206355, 207111, 207172, 207563, [April 8, 2014])

7. Sections 7 and 8

Sec. 7. The State shall pursue an independent foreign policy. In its

relations with other states, the paramount consideration shall be
national sovereignty, territorial integrity, national interest, and the
right to self- determination.

Sec. 8. The Philippines, consistent with the national interest, adopts

and pursues a policy of freedom from nuclear weapons in its
territory.

a. "Consistent with national interest" admits of two interpretations. One view

holds that the Constitution itself has decided to have no nuclear interest as the
policy of the State. The other view holds that, as shown by the deliberations of the
Constitutional Commission, the phrase should be read as "subject to national
interest" which means that the issue of whether to allow the stock-piling of
nuclear weapons depends on Congressional policy .

b. It is the intent and sense of the Constitutional Commission that the phrase"
consistent with national interest" xxx also means "subject to the national interest."

8. Social Justice and Just and Dynamic Order

Sec. 9. The State shall promote a just and dynamic social order that
will ensure the prosperity and independence of the nation and free
the people from poverty through policies that provide adequate
social services, promote full employment, a rising standard of living,
and an improved quality of life for all.

Sec. 10. The State shall promote social justice in all phases of
national development.

Correlate these provisions with the following:

a. Art. XII, Sec. 1. The goals of the national economy are a more
equitable distribution of opportunities, income, wealth; a sustained increase in the
amount of goods and services produced by the nation for the benefit of the people;
and an expanding productivity as the key to raising the quality of life for all,
especially the underprivileged.

b. Art. XIII, Sec. 1. The Congress shall give highest priority to the enactment
of measures that protect and enhance the right of all the people to human dignity,

33
reduce social, economic and political inequalities, and remove cultural inequities
by equitably diffusing wealth and political power for the common good. To this
end, the State shall regulate the acquisition, ownership, use, and disposition of
property and its increments.

c. Art. XIII, Sec. 2. The promotion of social justice shall include the
commitment to create economic opportunities based on freedom of initiative and
self-reliance.

d. Barlongay: The 1987 Constitution, compared to the 1935 and the 1973
Constitution, contains the most expanded concept of Social Justice.

e. The classic definition of Social Justice is found in Calalang vs. Williams, 70

P 726, where Justice Laurel declared as follows:

"Social Justice is 'neither communism, nor despotism, nor atomism,

nor anarchy,' but the humanization of laws and the equalization of
social and economic forces by the State so that justice in its rational
and objectively secular conception may at least be approximated.
Social justice means the promotion of the welfare of all the people,
the adoption by the Government of measures calculated to insure
economic stability of all the 
 component elements of society,
through the maintenance of a proper economic and social
equilibrium in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, the exercise of powers
underlying the existence of all governments on the time-honored
principle of salus populi est suprema lex."

9. Section 11(Respect for human dignity and human rights)

Art. II, Sec. 11. The State values the dignity of every human person
and guarantees full respect for human rights.

Relate to the following provisions:

a. Art. XVI, Sec. 5(2). The State shall strengthen the patriotic spirit and
nationalist consciousness of the military, and respect for people's
rights in the performance of their duty.

b. Art. XIII, Sec. 17

(1) There is hereby created an independent office called the Commission

on Human Rights.
(2) The Commission shall be composed of a Chairman and four Members
who must be natural-born citizens of the Philippines, and a majority of
whom shall be members of the Bar. The term of office and other
qualifications and disabilities of the Members shall be provided by law.

34
 (3) Until this Commission is constituted, the existing Presidential
Commission on Human Rights shall continue to exercise its present
functions and powers.
(4) The approved annual appropriations of the Commission shall be
automatically and regularly released.

Sec. 18. The Commission on Human Rights shall have the following powers
and functions:
(1) Investigate on its own or on complaint by any party all forms of human
rights violations involving civil or political rights;
(2) Adopt its operational guidelines and rules of procedure and cite for
contempt for violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights
of all person within the Philippines, as well as Filipinos residing abroad,
and provide for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need
protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and information
to enhance respect for the primacy of human rights;
(6) Recommend to Congress effective measures to promote human rights
and provide for, compensation to victims of violations of human rights, or
their families;
(7) Monitor the Government's compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or
whose possession of document or other evidence is necessary or
convenient to determine the truth in any investigation conducted by it or
under its authority;
(9) Request the assistance of any department, bureau, office, or agency in
the performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law.

Sec. 19. The Congress may provide for other cases of violations of human
rights that should fall within the authority of the Commission taking
into account its recommendation.

Take Note:

a. See Basco vs. PAGCOR, 197 SCRA 52, where the SC upheld the
constitutionality of PD 1869 (charter of Pagcor) authorizing it to operate casinos
as it did not violate Secs. 11, 12 and 13, Article II of the Constitution, such
provisions being not self-executing.

b. All told, the CHR, although admittedly a constitutional creation is,

nonetheless, not included in the genus of offices accorded fiscal autonomy by
constitutional or legislative fiat. (Commission on Human Rights Employees'
Association v. Commission on Human Rights, G.R. No. 155336, [November 25,
2004], 486 PHIL 509-535)

35
c. As should at once be observed, only the first of the enumerated powers and
functions bears any resemblance to adjudication or adjudgment. The Constitution
clearly and categorically grants to the Commission the power to investigate all
forms of human rights violations involving civil and political rights. But it cannot
try and decide cases (or hear and determine causes) as courts of justice, or
even quasi-judicial bodies do. To investigate is not to adjudicate or adjudge.
Whether in the popular or the technical sense, these terms have well understood
and quite distinct meanings. [Cariño v. CHR (1991)]

d. Not being a court of justice, the CHR itself has no jurisdiction to issue the
writ, for a writ of preliminary injunction may only be issued "by the judge of any
court in which the action is pending [within his district]. or by a Justice of the Court
of Appeals, or of the Supreme Court.(Export Processing Zone Authority v.
Commission on Human Rights, G.R. No. 101476, [April 14, 1992], 284 PHIL 236-
244)

e. The "order to desist" (a semantic interplay for a restraining order) in the

instance before us, however, is not investigatorial in character but prescinds from
an adjudicative power that it does not possess. In Export Processing Zone
Authority vs. Commission on Human Rights, the Court, speaking through Madame
Justice Carolina Griño-Aquino, explained: "The constitutional provision directing
the CHR to `provide for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need protection' may
not be construed to confer jurisdiction on the Commission to issue a restraining
order or writ of injunction for, it that were the intention, the Constitution would
have expressly said so. `Jurisdiction is conferred only by the Constitution or by
law.' It is never derived by implication.(Simon, Jr. v. Commission on Human
Rights, G.R. No. 100150, [January 5, 1994])

f. The OSG correctly argued that the respondents, in their official capacities
as Chairperson and Members of the CHR, did not engage in judicial or quasi-
judicial functions; they did not adjudicate the rights and obligations of the
contending parties but simply undertook to initiate the investigation of the
allegations against the petitioner. The inquiry was not a quasi-judicial proceeding,
where offenses were charged, parties were heard and penalties were imposed. It
was at most, an exercise of fact-finding investigation, which is entirely distinct and
different from the concept of adjudication. (Quisumbing v. Rosales, G.R. No.
209283, [March 11, 2015])

g. The findings of fact and the conclusions of law of the CHR are merely
recommendatory and, therefore, not binding to this Court. The reason is that the
CHR's constitutional mandate extends only to the investigation of all forms of
human rights violations involving civil and political rights. As held in Cariño v.
Commission on Human Rights and a number of subsequent cases, the CHR is only
a fact-finding body, not a court of justice or a quasi-judicial agency. It is not
empowered to adjudicate claims on the merits or settle actual case or
controversies. The power to investigate is not the same as adjudication|(Cudia v.
Superintendent of the Philippine Military Academy, G.R. No. 211362,
[February 24, 2015])

36
10. Section 12 (Family and Life of the Unborn)

Section 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life
of the unborn from conception. The natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
Government.

Spouses Imbong v. Ochoa, Jr., [April 8, 2014]

a. Textually, the Constitution affords protection to the unborn from

conception. This is undisputable because before conception, there is no
unborn to speak of. For said reason, it is no surprise that the Constitution
is mute as to any proscription prior to conception or when life begins. The
problem has arisen because, amazingly, there are quarters who have
conveniently disregarded the scientific fact that conception is reckoned
from fertilization. They are waving the view that life begins at implantation.
Hence, the issue of when life begins.

b. It is apparent that the Framers of the Constitution emphasized that the

State shall provide equal protection to both the mother and the unborn
child from the earliest opportunity of life, that is, upon fertilization or upon
the union of the male sperm and the female ovum. It is also apparent is that
the Framers of the Constitution intended that to prohibit Congress from
enacting measures that would allow it determine when life begins.

c. Equally apparent, however, is that the Framers of the Constitution did not
intend to ban all contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized that the
determination of whether a contraceptive device is an abortifacient is a
question of fact which should be left to the courts to decide on based on
established evidence. 155 From the discussions above, contraceptives that
kill or destroy the fertilized ovum should be deemed an abortive and thus
prohibited. Conversely, contraceptives that actually prevent the union of
the male sperm and the female ovum, and those that similarly take action
prior to fertilization should be deemed non-abortive, and thus,
constitutionally permissible.

d. In all, whether it be taken from a plain meaning, or understood under

medical parlance, and more importantly, following the intention of the
Framers of the Constitution, the undeniable conclusion is that a zygote is a
human organism and that the life of a new human being commences at
a scientifically well-defined moment of conception, that is, upon
fertilization.

37
 e. From the foregoing, the Court finds that inasmuch as it affords protection
to the fertilized ovum, the RH Law does not sanction abortion. To repeat, it
is the Court's position that life begins at fertilization, not at implantation.
When a fertilized ovum is implanted in the uterine wall, its viability is
sustained but that instance of implantation is not the point of beginning of
life. It started earlier. And as defined by the RH Law, any drug or device that
induces abortion, that is, which kills or destroys the fertilized ovum or
prevents the fertilized ovum to reach and be implanted in the mother's
womb, is an abortifacient.

f. A component to the right to life is the constitutional right to health. In this

regard, the Constitution is replete with provisions protecting and
promoting the right to health.

g. A portion of Article XIII also specifically provides for the States' duty to
provide for the health of the people, Contrary to the respondent's notion,
however, these provisions are self-executing. Unless the provisions clearly
express the contrary, the provisions of the Constitution should be
considered self-executory.

11. Section 13 (Youth)

Section 13. The State recognizes the vital role of the youth in nation-
building and shall promote and protect their physical, moral,
spiritual, intellectual, and social well-being. It shall inculcate in the
youth patriotism and nationalism, and encourage their involvement
in public and civic affairs.

a. The purpose of the Boy Scouts of the Philippines (BSP) as stated in

its amended charter shows that it was created in order to implement a State policy
declared in Article II, Section 13 of the ConstitutionEvidently, the BSP, which was
created by a special law to serve a public purpose in pursuit of a constitutional
mandate, comes within the class of "public corporations" defined by paragraph 2,
Article 44 of the Civil Code and governed by the law which creates it, pursuant to
Article 45 of the same Code. (Boy Scouts of the Phil. v. Commission on Audit, G.R.
No. 177131, [June 7, 2011], 666 PHIL 140-224)

b. Firstly, BSP's functions as set out in its statutory charter do have a

public aspect. BSP's functions do relate to the fostering of the public virtues of
citizenship and patriotism and the general improvement of the moral spirit and
fiber of our youth. The social value of activities like those to which the BSP
dedicates itself by statutory mandate have in fact, been accorded constitutional
recognition. (Boy Scouts of the Philippines v. National Labor Relations
Commission, G.R. No. 80767, [April 22, 1991], 273 PHIL 390-406)

12. Sec. 14 (Women)

Section 14. The State recognizes the role of women in nation-

building, and shall ensure the fundamental equality before the law of
women and men.

38
Relate this to the following provisions:

a. Sec. 4. Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission they are deemed under the law, to have
renounced it.

b. Art. XIII, Sec. 14. The State shall protect working women by providing safe
and healthful working conditions, taking into account their maternal functions,
and such facilities and opportunities that will enhance their welfare and enable
them to realize their full potential in the service of the nation.

c. Art. IV, Sec. 1(2): Those whose fathers or mothers are citizens of the
Philippines.

d. PT&T vs. NLRC (1997) - the SC held that the policy of the employer of not
accepting or considering as disqualified from work any woman worker who
contracts marriage, runs afoul of the test of, and the right against discrimination,
which is guaranteed all women workers under the Constitution.

e. One significant move to equalize men and women is in the area of

citizenship. Under the 1935 Constitution, a child born of a Filipino mother became
a Filipino only upon election when he reached the age of majority.

The 1973 Constitution removed this stigma and made such born 
 after 17
January 1973 a Filipino without the need of election. The 1987 Constitution
improved the situation even more by granting to those children born before 17
January 1973 who elected 
citizenship, whether born before or after 17 January
1973, the status of natural-born citizens. At the same time, Filipino women who
by virtue of marriage to an alien husband, became citizens of their husband's
country no longer lost her Philippine citizenship by that fact alone, beginning 17
January 1973.

f. In Saudia Arabian Airlines vs. Rebesencio (January 14, 2015), the SC

rejected that applicability of the law of Saudia Arabia in interpreting the contract
of Filipino cabin workers who questioned the termination of their employment on
account of their pregnancies noting that “this is no ordinary case of illegal
dismissal. This is a case of manifest gender discrimination, an affront not only to
our statutes and policies on employees’ security of tenure, but more so, to the
Constitution’s dictum of fundamental equality between men and women.

g. In the area of labor it has been consistently held, beginning in the US with
Sandy v Oregon ( the court requiring the company to provide stools for women
workers in the factories), that statutes (Book 3, Title III, Chapter I of the Labor
Code) granting women better treatment by virtue of their maternal function were
valid.

13. Sec. 15 (Health)

39
 Section 15. The State shall protect and promote the right to health
of the people and instill health consciousness among them.

a. Contrary to the respondent's notion, however, these provisions are self-

executing. Unless the provisions clearly express the contrary, the provisions of the
Constitution [Sec. 15, Art. II and Secs. 11, 12, 13, Art. XIII, and Sec. 9, Art. XVII] should
be considered self-executory. There is no need for legislation to implement these
self-executing provisions.||| (Spouses Imbong v. Ochoa, Jr., G.R. No. 204819,
204934, &, 204988, 205003, 205043, 205138, 205478, 205491, 205720,
206355, 207111, 207172, 207563, [April 8, 2014])

14. Sec. 16 (Balanced and Healthful Ecology)

a. This provides for enforceable rights. Hence, appeal to it has been

recognized as conferring “standing” on minors to challenge logging
policies of the government. (Oposa vs. Factoran).
b. This is a self-executing provision.

15. Sec. 17 (Education, Science and Technology)

Section 17. The State shall give priority to education, science and
technology, arts, culture, and sports to foster patriotism and
nationalism, accelerate social progress, and promote total human
liberation and development.

a. Relate this to Sec. 2, Art. XIV which provides that the State is directed
to provide highest budgetary priority to education. and Art. XIV, Sec. 1. The State
shall protect and promote the right of all citizens to quality education at all levels
and shall take appropriate steps to make such education accessible to all.

b. While it is true that under Section 5(5), Article XIV of the

Constitution Congress is mandated to "assign the highest budgetary priority to
education" in order to "insure that teaching will attract and retain its rightful share
of the best available talents through adequate remuneration and other means of
job satisfaction and fulfillment," it does not thereby follow that the hands of
Congress are so hamstrung as to deprive it the power to respond to the
imperatives of the national interest and for the attainment of other state policies
or objectives. (Guingona, Jr. v. Carague, G.R. No. 94571, [April 22, 1991], 273
PHIL 443-466)

c. The educational operation of schools is subject to prior

authorization of the government and is effected by recognition. In the case of
government-operated schools, whether local, regional or national, recognition of
educational programs and/or operations is deemed granted simultaneously with
establishment. In all other cases the rules and regulations governing recognition
are prescribed and enforced by the DECS, defining therein who are qualified to
apply, providing for a permit system, stating the conditions for the grant of
recognition and for its cancellation and withdrawal, and providing for related
matters. The requirement on prior government authorization is pursuant to the
State policy that educational programs and/or operations shall be of good quality

40
and therefore shall at least satisfy minimum standards with respect to curricula,
teaching staff, physical plant and facilities and of administrative or management
viability. (Philippine Merchant Marine School, Inc. v. Court of Appeals, G.R. No.
112844, [June 2, 1995], 314 PHIL 798-823)

d. Students have the constitutional right not only to education but to a

quality education, up to the secondary level, for free. But this is subject to the right
of the school to impose reasonable academic standards, and to make education
available only on the basis of merit.

i. In Villar v Technological Institute of the Philippines, 135 SCRA 706

(1985),a case involving the denial of enrollment of student activists who
took part in demonstrations and mass actions, and who, at the same time
incurred scholastic deficiencies. The Court held that participation in mass
actions per se is not a valid ground for dismissal, but that failure in
academic subjects pursuant to school regulations was a valid ground. For
while the right to education is a social, economic and cultural right, it is
available only "on the basis of merit."

ii. In Tagonan v Cruz Pano, 137 SCRA 245 (1985), a case of a nursing student
who was denied readmission after she failed a subject during her previous
provisional admission (and her inability to take this subject in another
school after she tried to bribe the Dean of that school),the SC again upheld
the right of schools of higher learning to choose the students which it thinks
could best achieve their goal of excellence and truth, while affirming the
right of students to quality education.

iii. In DECS vs. San Diego, 180 SCRA 533 (1989), the SC held that the the
denial of student to take the medical board examination on account of
having flunked 3 times is valid exercise of police power.

16. 13.Sec. 18 (Labor)

Section 18. The State affirms labor as a primary social economic

force. It shall protect the rights of workers and promote their
welfare.

a. Obviously, protection to labor does not indicate promotion of employment

alone. Under the welfare and social justice provisions of the Constitution, the
promotion of full employment, while desirable, cannot take a backseat to the
government's constitutional duty to provide mechanisms for the protection of our
workforce, local or overseas. At this Court explained in Philippine Association of
Service Exporters (PASEI) v. Drilon, in reference to the recurring problems faced
by our overseas workers:

What concerns the Constitution more paramountly is that such an employment be

above all, decent, just, and humane. It is bad enough that the country has to send
its sons and daughters to strange lands because it cannot satisfy their employment
needs at home. Under these circumstances, the Government is duty-bound to

41
insure that our toiling expatriates have adequate protection, personally and
economically, while away from home.( (JMM Promotion and Management, Inc.
v. Court of Appeals, G.R. No. 120095, [August 5, 1996], 329 PHIL 87-102)

17. Sec. 19 (Self-Reliant and Independent Economy)

Section 19. The State shall develop a self-reliant and independent

national economy effectively controlled by Filipinos.

a. Every provision of the Constitution on the national economy and

patrimony is infused with the spirit of national interest. The non-alienation of
natural resources, the State's full control over the development and utilization of
our scarce resources, agreements with foreigners being based on real
contributions to the economic growth and general welfare of the country and the
regulation of foreign investments in accordance with national goals and priorities
are too explicit not to be noticed and understood. A petrochemical industry is not
an ordinary investment opportunity. It should not be treated like a garment or
embroidery firm, a shoe-making venture, or even an assembler of cars or
manufacturer of computer chips, where the BOI reasoning may be accorded fuller
faith and credit. The petrochemical industry is essential to the national interest.
(Garcia v. Board of Investments, G.R. No. 92024, [November 9, 1990])

b. By its very title, Article II of the Constitution is a "declaration of

principles and state policies." The counterpart of this article in the 1935
Constitution is called the "basic political creed of the nation" by Dean Vicente
Sinco. These principles in Article II are not intended to be self-executing principles
ready for enforcement through the courts. They are used by the judiciary as aids
or as guides in the exercise of its power of judicial review, and by the legislature
in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs.
Morato, the principles and state policies enumerated in Article II and some
sections of Article XII are not "self-executing provisions, the disregard of which
can give rise to a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation." (Tañada v.
Angara, G.R. No. 118295, [May 2, 1997], 338 PHIL 546-606)

18. Private Sector and Private Enterprise

Sec. 20. The State recognizes the indispensable role of the private
sector, encourages private enterprise, and provides incentives to
needed investments.

a. Section 20 is an acknowledgment of the importance of private initiative

in building the nation. However, it is not a call for official abdication of duty to
citizenry. (Marine Radio Communications Association vs. Reyes)

19. Sec. 24 (Communication and Information)

The State recognizes the vital role of communications and

information in nation-building.

42
a. The decisive considerations are public need, public interest, and the
common good. Those were the overriding factors which motivated NTC in
granting provisional authority to ETCI. Article II, Section 24 of the 1987
Constitution, recognizes the vital role of communication and information in nation
building. It is likewise a State policy to provide the environment for the emergence
of communications structures suitable to the balanced flow of information into,
out of, and across the country (Article XVI, Section 10, ibid.). A modern and
dependable communications network rendering efficient and reasonably priced
services is also indispensable for accelerated economic recovery and
development. To these public and national interests, public utility companies must
bow and yield. (PLDT Co. v. National Telecommunications Commission, G.R. No.
88404, [October 18, 1990], 268 PHIL 784-815)

20. Sec. 25 (Local Autonomy)

The State shall ensure the autonomy of local governments.

a. The power of local government to "impose taxes and fees" is always

subject to "limitations" which Congress may provide by law. Since PD 1869
remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art.
XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the
exercise of the power of local governments to impose taxes and fees. It cannot
therefore be violative but rather is consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply
means "decentralization" (III Records of the 1987 Constitutional Commission, pp.
435-436, as cited in Bernas, The Constitution of the Republic of the Philippines,
Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign
within the state or an "imperium in imperio." (Basco v. Philippine Amusements
and Gaming Corp., G.R. No. 91649, [May 14, 1991], 274 PHIL 323-346)

b. Even as we recognize that the Constitution guarantees autonomy to

local government units, the exercise of local autonomy remains subject to the
power of control by Congress and the power of general supervision by the
President. (Judge Dadole vs. COA, G.R. No. 125350, December 3, 2002)

c. In Lina v. Pano, G.R. No. 129093, August 30, 2001, the Supreme
Court said that the basic relationship between the national legislature and the
Constitution strengthening the policy of local autonomy. Without meaning to
detract from that policy, Congress retains control of the local government
units although in significantly reduced degree now than under our previous
constitutions. The power to create still includes the power to destroy. The
power to grant still includes the power to withhold or recall. True, there are
some notable innovations in the Constitution, like the direct conferment on
the local government units of the power to tax (Sec.5, Art. X),which cannot
now be withdrawn by mere statute. By and large, however, the national
legislature is still the principle of local government units, which cannot defy its
will or modify or violate it. Ours is still a unitary form of government, not a federal
state. Being so, any form of autonomy granted to local governments will

43
necessarily be limited and confined within the extent allowed by the central
authority.

d. Drilon vs. Lim GR No. 112797 August 4, 1994.

Presidential power over local government is limited by this 1987

Constitution to the exercise of general supervision “to ensure that local affairs are
administered according to law.” General supervision is exercised by the President
through the Secretary of Local Government. In administrative law, supervision
means overseeing or the power or authority of an officer to see that the
subordinate officers perform their duties. If the latter fails or neglects to fulfill
them the former may take such action or step as prescribed by law to make them
perform their duties. Control, on the other hand, means the power of an officer to
alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his/her duties and to substitute the judgment of the former for
that of the latter.

e. Authority to create. A local government unit may be created,

divided, merged, abolished or its boundaries substantially altered either by law
enacted by Congress in the case of a province, city, municipality or any other
political subdivision, or by ordinance passed by the sangguniang panlalawigan or
sangguniang panlungsod concerned in the case of a barangay located within its
territorial jurisdiction, subject to such limitations and requirements prescribed in
the Local Government Code [Sec. 6, R.A. 7160].

f. In Section 19, R.A. 9054, Congress delegated to the Autonomous

Region in Muslim Mindanao (ARMM) the power to create provinces, cities,
municipalities and barangays within the ARMM. Challenged as unconstitutional
In Sema v. Comelec, G.R. No. 177597, July 16, 2008, the Supreme Court said: There
is no provision in the Constitution that conflicts within the delegation to regional
legislative bodies of the power to create municipalities and barangays, provided
Section 10, Article X of the Constitution is followed. However, the creation of
provinces and cities is another matter. Section 5 (3), Article VI of the Constitution
provides that each city with a population of at least two hundred fifty thousand,
or each province, shall have at least one representative. Section 3 of the Ordinance
appended to the Constitution provides that any province that may thereafter be
created, or any city whose population may hereafter increase to more than two
hundred fifty thousand shall be entitled in the immediately following election to
at least one Member (in the House of Representatives). Pursuant to these
provisions, a province cannot be created without creating a legislative district;
nor can a city with a population of 250,000 or more 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 the power to create a legislative district. Accordingly,
the delegation granted by Congress to the ARMM to create provinces and cities is
unconstitutional, because Congress cannot validly delegate the power to create
legislative districts for the House of Representatives, since the power to increase
the allowable membership in the House of Representatives and to reapportion
legislative districts, is vested exclusively in Congress.

44
g. Sec. 10, Art. X, Constitution: No province, city, municipality or
barangay may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in
the local government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.

h. Plebiscite requirements: No creation, division, merger, abolition or

substantial alteration of boundaries of local government unit shall take effect
unless approved by a majority of the votes cast in a plebiscite called for the
purpose in the political unit or units directly affected. Said plebiscite shall be
conducted by the Comelec within 120 days from the date of effectivity of the law
or ordinance effecting such action, unless said law or ordinance fixes another date
[Sec. 10, R.A. 7160].

i. In Tan v. Comelec, 142 SRA 727, it was held that a plebiscite for creating
a new province should include the participation of the residents of the mother
province in order to conform to the constitutional requirement. X x x BP 885,
creating the Province of Negros del Norte, is declared unconstitutional because it
excluded the voters of the mother province from participating in the plebiscite
(and it did not comply with the area criterion prescribed in the Local Government
Code). X x x Where the law authorizing the holding of a plebiscite in
unconstitutional, the Court cannot authorize the holding of an new one. X x x The
fact that the plebiscite which the petition sought to stop had already been held and
officials of the new province appointed does not make the petition moot and
academic, as the petition raises an issue of constitutional dimension.

j. BAGABUYO VS. COMELEC (2008)

The holding of a plebiscite is not a requirement in legislative appointment

or reappointment; A plebiscite is necessary only in the creation, division, merger,
abolition or alteration of boundaries of local government units.

k. Umali vs. Comelec (2014)

Conversion of a component city into a highly urbanized city requires the

participation of all registered voters of the province in the plebiscite.

l. Sec. 7, R.A. 7160: Based on verifiable indicators of viability and projected

capacity to provide services, to wit:

i) Income – must be sufficient, based on acceptable standards, to

provide for all essential government facilities and services and special
functions commensurate with the size of its population, as expected of the
local government unit concerned. Average annual income for the last two
consecutive years based on 1991 constant prices should be at least:

ia)Municipality : P2,500,000.00
ib)City: P100,000,000.00 (Yr. 2000 constant prices amended by
R.A. 9009)
ic) Highly urbanized city: P50,000,000.00

45
 id) Province:P20,000,000.00

In Alvarez v. Guigona, 252 SCRA 695, it was held that the Internal Revenue
Allotments (IRAs) should be included in the computation of the average annual
income of the municipality (for purposes of determining whether the municipality
may be validly converted into a city), but under RA 9009, it is specifically
provided that for conversion to cities, the municipality’s income should not
include the IRA.

ii) Population. It shall be determined as the total number of

inhabitants within the territorial jurisdiction of the local government unit
concerned. Required minimum population for:

iia) Barangay: 2,000 inhabitants [except in metro Manila and other

metropolitan political subdivisions or in highly urbanized cities, where
the requirement is 5,000 inhabitants]
iib) Municipality: 25,000
iic) City: 150,000
iid) Highly urbanized city: 200,000
iie) Province: 250,000

iii) Land Area. It must be contiguous, unless it comprises two or

more islands or is separated by a local government unit independent of
the others; properly identified by metes and bounds with technical
descriptions and sufficient to provide for such basic services and facilities
to meet the requirements of its populace. Area requirement are:
iiia) MunicIpality : 50 square kilometers
iiib) City: 100 square kilometers
iiic) Province: 2,000 square kilometers

m. Compliance with the foregoing indicators shall be attested to by the

Department of Finance, the National Statistics Office and the Lands Management
Bureau of the Department of Environment and Natural Resources. In Mariano v.
Comelec, 242 SCRA 211, the Supreme Court said that the requirement that the
territory of newly-created local government units be identified by metes and
bounds is intended to provide the means by which the area of the local
government unit may be reasonably ascertained, i.e., as a tool in the establishment
of the local government unit. As long as the territorial jurisdiction of the newly
created city may be reasonably ascertained – by referring to common boundaries
with neighboring municipalities – then, the legislative intent has been sufficiently
served. [NOTE: R.A. 7854, which converted Makati into a city, did not define the
boundaries of the new city by metes and bounds, because of a territorial dispute
between Makati and Taguig, which was best left for the courts to decide.]

n. See: Navarro vs. Ermita,(2010) where SC upheld the validity of

the creation of the Province of Dinagat Islands despite its area of less than 2,000
sq. km. because of IRR of RA 7160 which exempts area requirement for province
consisting of one or two islands.

o. LCP Case - Undeniably, R.A. No. 9009 amended the LGC. But it is also true
that, in effect, the Cityhood Laws amended R.A. No. 9009 through the exemption

46
clauses found therein. Since the Cityhood Laws explicitly exempted the concerned
municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are,
therefore, also amendments to the LGC itself. For this reason, we reverse the
November 18, 2008 Decision and the August 24, 2010 Resolution on their strained
and stringent view that the Cityhood Laws, particularly their exemption clauses,
are not found in the LGC.

p. Term Limit Rules

1. When a permanent vacancy occurs in an elective position

and the official merely assumed the position pursuant to the rules
on succession under the LGC, then his service for the unexpired
portion of the term of the replaced official cannot be treated as one
full term as contemplated under the subject constitutional and
statutory provision that service cannot be counted in the
application of any term limit (Borja, Jr.). If the official runs again for
the same position he held prior to his assumption of the higher
office, then his succession to said position is by operation of law and
is considered an involuntary severance or interruption
(Montebon).

2. An elective official, who has served for three consecutive

terms and who did not seek the elective position for what could be
his fourth term, but later won in a recall election, had an
interruption in the continuity of the official's service. For, he had
become in the interim, i.e., from the end of the 3rd term up to the
recall election, a private citizen (Adormeo and Socrates).

3. The abolition of an elective local office due to the conversion

of a municipality to a city does not, by itself, work to interrupt the
incumbent official's continuity of service (Latasa).

4. Preventive suspension is not a term-interrupting event as

the elective officer's continued stay and entitlement to the office
remain unaffected during the period of suspension, although he is
barred from exercising the functions of his office during this period
(Aldovino, Jr.).

5. When a candidate is proclaimed as winner for an elective

position and assumes office, his term is interrupted when he loses
in an election protest and is ousted from office, thus disenabling him
from serving what would otherwise be the unexpired portion of his
term of office had the protest been dismissed (Lonzanida and
Dizon). The break or interruption need not be for a full term of three
years or for the major part of the 3-year term; an interruption for
any length of time, provided the cause is involuntary, is sufficient to
break the continuity of service (Socrates, citing Lonzanida).

47
 6. When an official is defeated in an election protest and said
decision becomes final after said official had served the full term for
said office, then his loss in the election contest does not constitute
an interruption since he has managed to serve the term from start
to finish. His full service, despite the defeat, should be counted in the
application of term limits because the nullification of his
proclamation came after the expiration of the term (Ong and
Rivera).

21. Equal Access to Opportunities (Sec. 26)

The State shall guarantee equal access to opportunities for public

service, and prohibit political dynasties as may be defined by law.

a. Relate this with Sec. 13 Art. VII which prohibits the the President from
appointing his spouse and relatives within 4th degree of affinity or consanguinity
to certain positions (constitutional commissions), Ombudsman, Secretaries,
undersecretaries, head of agencies and bureaus and GOCCs).

b. Relate this with Secs. 1-2, Article 13 (Social Justice and Human
Rights) which require Congress to enact laws that will reduce, social, economic
and political inequalities

c. Prohibition of political dynasties requires legislation as this

provision (Sec. 26) is not self-executing.

22. Sec. 28 (Full Public Disclosure)

Subject to reasonable conditions prescribed by law, the State adopts

and implements a policy of full public disclosure of all its
transactions involving public interest.

a. Chavez v. PCGG held that "information on inter-government exchanges

prior to the conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest.

b. In PMPF v. Manglapus, the therein petitioners were seeking information

from the President's representatives on the state of the then on-going negotiations
of the RP-US Military Bases Agreement. The Court denied the petition, stressing
that "secrecy of negotiations with foreign countries is not violative of the
constitutional provisions of freedom of speech or of the press nor of the freedom
of access to information."|

c. Diplomatic negotiations, therefore, are recognized as privileged in this

jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis,
however, that such privilege is only presumptive. For as Senate v. Ermita holds,
recognizing a type of information as privileged does not mean that it will be
considered privileged in all instances. Only after a consideration of the context in
which the claim is made may it be determined if there is a public interest that calls

48
for the disclosure of the desired information, strong enough to overcome its
traditionally privileged status. (Akbayan Citizens Action Party v. Aquino, G.R. No.
170516, [July 16, 2008], 580 PHIL 422-622)

d. The Court, however, distinguished the duty to disclose information from

the duty to permit access to information on matters of public concern under Sec.
7, Art. III of the Constitution. Unlike the disclosure of information which is
mandatory under the Constitution, the other aspect of the people's right to know
requires a demand or request for one to gain access to documents and paper of
the particular agency. Moreover, the duty to disclose covers only transactions
involving public interest, while the duty to allow access has a broader scope of
information which embraces not only transactions involving public interest, but
any matter contained in official communications and public documents of the
government agency. 37 Such relief must be granted to the party requesting access
to official records, documents and papers relating to official acts, transactions, and
decisions that are relevant to a government contract. (IDEALS, Inc. v. PSALM
Corp., G.R. No. 192088, [October 9, 2012], 696 PHIL 486-600)

III. CITIZENSHIP

1. Who are citizens of the Philippines?

a. Citizens of the Philippines at the time of the adoption of the Constitution

(February 2, 1987)

i. Those who were born at the time of the 1935 Constitution

ii. Those who were born at the time of the 1973 Constitution

b. Those whose fathers or mothers are citizens of the Philippines.

c. Those born before January 17, 1973 to Filipino mothers and elected
Philippine citizenship upon reaching the age of majority.

i. Election of Filipino citizenship must be made within 3 years from

reaching the age of majority.
ii. Election could be made in the form of execution of an affidavit
accompanied by an oath of allegiance, or through exercise of the
right of suffrage and participation in the election exercises. (Co vs.
HRET)
iii. The right to elect Philippine citizenship is an inchoate right; during
his minority, the child is an alien. (Villahermosa vs. Commissioner of
Immigration, 80 Phil. 541)
iv. The constitutional and statutory requirements of electing Filipino
citizenship apply only to legitimate children (Republic vs. Chule Lim,
Jan. 13, 2004), as illegitimate children follow the citizenship of their
mother. (Serra vs. Republic, 91 Phil. 914)

d. Those naturalized in accordance with law.

49
2. Co vs. House Electoral Tribunal (1991) - Sec. 1(3), Art. IV is also
applicable to those who are born to Filipino mothers and elected Philippine
citizenship before February 2, 1987. This is to correct the anomalous situation
where one born of a Filipino father and an alien mother was automatically granted
the status of a natural-born citizen, while one born of a Filipino mother and an
alien father would still have to elect Philippine citizenship.

3. Natural born citizens

Citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship; and those who elect Philippine
citizenship in accordance with Sec. 1(3), Art. IV. The term “natural-born citizens”
is defined to

4. Tecson vs. Comelec (2004)

Any conclusion on the Filipino citizenship of Lorenzo Pou could only be

drawn from the presumption that having died in 1954 at 84 years old, Lorenzo
would have been born sometime in the year 1870, when the Philippines was under
Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his
death in 1954, in the absence of any other evidence, could have well been his place
of residence before death, such that Lorenzo Pou would have benefited from the
en masse Filipinization that the Philippine Bill had effected in 1902. That
citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F.
Poe, father of respondent FPJ. The 1935 Constitution, during which regime
respondent FPJ has seen first light, confers citizenship to all persons whose fathers
are Filipino citizens regardless of whether such children are legitimate or
illegitimate.

But while the totality of the evidence may not establish conclusively that
respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand
still would preponderate in his favor enough to hold that he cannot be held guilty
of having made a material misrepresentation in his certificate of candidacy in
violation of Section 78, in relation to Section 74, of the Omnibus Election Code.
Petitioner has utterly failed to substantiate his case before the Court,
notwithstanding the ample opportunity given to the parties to present their
position and evidence, and to prove whether or not there has been material
misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC, must not
only be material, but also deliberate and willful.

5. Bengzon vs. HRET and Cruz (2001)

Facts: Respondent Teodoro Cruz was a natural-born citizen of the

Philippines. He was born in San Clemente, Tarlac, on April 27, 1960, of Filipino
parents. The fundamental law then applicable was the 1935 Constitution. On
November 5, 1985, however, respondent Cruz enlisted in the United States Marine
Corps and without the consent of the Republic of the Philippines, took an oath
of allegiance to the United States. As a Consequence, he lost his Filipino citizenship

50
for under Commonwealth Act No. 63, section 1(4), a Filipino citizen may lose his
citizenship by, among other, "rendering service to or accepting commission in the
armed forces of a foreign country.” He was naturalized in US in 1990. On March
17, 1994, respondent Cruz reacquired his Philippine citizenship through
repatriation under Republic Act No. 2630. He ran for and was elected as the
Representative of the Second District of Pangasinan in the May 11, 1998 elections.
He won over petitioner Antonio Bengson III, who was then running for reelection.

Issue: Whether or Not respondent Cruz is a natural born citizen of the

Philippines in view of theconstitutional requirement that "no person shall be a
Member of the House of Representative unlesshe is a natural-born citizen.”

Held: Respondent is a natural born citizen of the Philippines. As

distinguished from the lengthy process of naturalization, repatriation simply
consists of the taking of an oath of allegiance to the Republic of the Philippine and
registering said oath in the Local Civil Registry of the place where the person
concerned resides or last resided. This means that a naturalized Filipino who lost
his citizenship will be restored to his prior status as a naturalized Filipino citizen.
On the other hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a natural-born
Filipino.

6. Velasco vs. Comelec (2008)

The records show that Velasco renounced his American citizenship only on
March 28, 2007, although he secured his dual citizenship status as early as July 31,
2006 at the Philippine Consulate in San Francisco, California. Under his dual
citizenship status, he possessed the right to vote in Philippine elections through
the absentee voting scheme under Republic Act No. 9189 (the Oversees Absentee
Voting Law or the OAVL) as we ruled in Nicolas-Lewis v. COMELEC. In Macalintal v.
COMELEC, we significantly said that absentee voters are exempted from the
constitutional residency requirement for regular Philippine voters. Thus, the
residency requirements we cited above under the VRA and the LGC do not apply
to Velasco, assuming he registered as a dual citizen/absentee voter.

By law, however, the right of dual citizens who vote as absentee voters
pertains only to the election of national officials, specifically: the president, the
vice-president, the senators, and party-list representatives. Thus, Velasco was not
eligible to vote as an absentee voter in the local election of 2007. In fact, the records
do not show that Velasco ever registered as an absentee voter for the 2007
election.

On the other hand, Velasco could not have registered as a regular voter
because he did not possess the residency requirement of one-year stay in the
Philippines and six-months stay in the municipality where he proposed to vote at
the time of the election. The records show that he arrived in the Philippines only
on September 14, 2006 and applied for registration on October 13 of that year for
the election to be held in May of the following year (2007). To hark back and
compare his case to a similar case, Coquilla v. COMELEC, Velasco, before acquiring

51
his dual citizenship status, was an American citizen who had lost his residency and
domiciliary status in the Philippines; whose sojourn in the Philippines was via a
visitors visa; and who never established permanent residence in the Philippines.
Like Coquilla before him, Velasco could not have therefore validly registered as a
regular voter eight months before the May 2007 local elections.

7. Maquiling vs. Comelec (2013)

We agree with the COMELEC En Banc that such act of using a foreign
passport does not divest Arnado of his Filipino citizenship, which he acquired by
repatriation. However, by representing himself as an American citizen, Arnado
voluntarily and effectively reverted to his earlier status as a dual citizen. Such
reversion was not retroactive; it took place the instant Arnado represented
himself as an American citizen by using his US passport.

This act of using a foreign passport after renouncing one's foreign

citizenship is fatal to Arnado's bid for public office, as it effectively imposed on him
a disqualification to run for an elective local position.

Arnado's category of dual citizenship is that by which foreign citizenship is

acquired through a positive act of applying for naturalization. This is distinct from
those considered dual citizens by virtue of birth, who are not required by law to
take the oath of renunciation as the mere filing of the certificate of candidacy
already carries with it an implied renunciation of foreign citizenship. 39 Dual
citizens by naturalization, on the other hand, are required to take not only the Oath
of Allegiance to the Republic of the Philippines but also to personally renounce
foreign citizenship in order to qualify as a candidate for public office.

By the time he filed his certificate of candidacy on 30 November 2009,

Arnado was a dual citizen enjoying the rights and privileges of Filipino and
American citizenship. He was qualified to vote, but by the express disqualification
under Section 40 (d) of the Local Government Code, 40 he was not qualified to run
for a local elective position.

In effect, Arnado was solely and exclusively a Filipino citizen only for a
period of eleven days, or from 3 April 2009 until 14 April 2009, on which date he
first used his American passport after renouncing his American citizenship.

This Court has previously ruled that:

Qualifications for public office are continuing requirements and must be

possessed not only at the time of appointment or election or assumption of office
but during the officer's entire tenure. Once any of the required qualifications is
lost, his title may be seasonably challenged. . . . .

The citizenship requirement for elective public office is a continuing one. It

must be possessed not just at the time of the renunciation of the foreign
citizenship but continuously. Any act which violates the oath of renunciation
opens the citizenship issue to attack.

52
 We agree with the pronouncement of the COMELEC First Division that
"Arnado's act of consistently using his US passport effectively negated his
"Affidavit of Renunciation." 42 This does not mean, that he failed to comply with
the twin requirements under R.A. No. 9225, for he in fact did. It was after
complying with the requirements that he performed positive acts which
effectively disqualified him from running for an elective public office pursuant to
Section 40 (d) of the Local Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual citizens

from running for any elective public office would be thwarted if we were to allow
a person who has earlier renounced his foreign citizenship, but who subsequently
represents himself as a foreign citizen, to hold any public office.

Arnado justifies the continued use of his US passport with the explanation
that he was not notified of the issuance of his Philippine passport on 18 June 2009,
as a result of which he was only able to obtain his Philippine passport three (3)
months later.

The COMELEC En Banc differentiated Arnado from Willy Yu, the

Portuguese national who sought naturalization as a Filipino citizen and later
applied for the renewal of his Portuguese passport. That Arnado did not apply for
a US passport after his renunciation does not make his use of a US passport less of
an act that violated the Oath of Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration officials of this country.

The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he

was in possession of his Philippine passport, the respondent already used the
same in his subsequent travels abroad." 44 We cannot agree with the COMELEC.
Three months from June is September. If indeed, Arnado used his Philippine
passport as soon as he was in possession of it, he would not have used his US
passport on 24 November 2009.

Besides, Arnado's subsequent use of his Philippine passport does not

correct the fact that after he renounced his foreign citizenship and prior to filing
his certificate of candidacy, he used his US passport. In the same way that the use
of his foreign passport does not undo his Oath of Renunciation, his subsequent use
of his Philippine passport does not undo his earlier use of his US passport.
Citizenship is not a matter of convenience. It is a badge of identity that comes with
attendant civil and political rights accorded by the state to its citizens. It likewise
demands the concomitant duty to maintain allegiance to one's flag and country.
While those who acquire dual citizenship by choice are afforded the right of
suffrage, those who seek election or appointment to public office are required to
renounce their foreign citizenship to be deserving of the public trust. Holding
public office demands full and undivided allegiance to the Republic and to no
other.

We therefore hold that Arnado, by using his US passport after renouncing

his American citizenship, has recanted the same Oath of Renunciation he took.

53
Section 40 (d) of the Local Government Code applies to his situation. He is
disqualified not only from holding the public office but even from becoming a
candidate in the May 2010 elections. (Maquiling v. Commission on Elections, G.R.
No. 195649, [April 16, 2013])

8. Arnado vs. Comelec (2015)

The ruling in Maquiling is indeed novel in the sense that it was the first case
dealing with the effect of the use of a foreign passport on the qualification to run
for public office of a natural-born Filipino citizen who was naturalized abroad and
subsequently availed of the privileges under RA 9225. It was settled in that case
that the use of a foreign passport amounts to repudiation or recantation of the
oath of renunciation. Yet, despite the issue being novel and of first impression,
plus the fact that Arnado could not have divined the possible adverse
consequences of using his US passport, the Court in Maquiling did not act with
leniency or benevolence towards Arnado. Voting 10-5, the Court ruled that
matters dealing with qualifications for public elective office must be strictly
complied with. Otherwise stated, the Court in Maquiling did not consider the
novelty of the issue as to excuse Arnado from strictly complying with the eligibility
requirements to run for public office or to simply allow him to correct the
deficiency in his qualification by submitting another oath of renunciation. Thus, it
is with more reason that in this case, we should similarly require strict compliance
with the qualifications to run for local elective office.

The circumstances surrounding the qualification of Arnado to run for

public office during the May 10, 2010 and May 13, 2013 elections, to reiterate for
emphasis, are the same. Arnado's use of his US passport in 2009 invalidated his
oath of renunciation resulting in his disqualification to run for mayor of
Kauswagan in the 2010 elections. Since then and up to the time he filed his CoC for
the 2013 elections, Arnado had not cured the defect in his qualification. Maquiling,
therefore, is binding on and applicable to this case following the salutary doctrine
of stare decisis et non quieta movere, which means to adhere to precedents, and
not to unsettle things which are established. Under the doctrine, "[w]hen the court
has once laid down a principle of law as applicable to a certain state of facts, it will
adhere to that principle and apply it to all future cases where facts are
substantially the same." It enjoins adherence to judicial precedents and bars
relitigation of the same issue.

It may not be amiss to add that as early as 2010, the year when Balua filed
a petition to disqualify him, Arnado has gotten wind that the use of his US passport
might pose a problem to his candidacy. In other words, when Arnado filed his CoC
on October 1, 2012, he was not totally unaware that the use of his US passport
after he had executed the Affidavit of Renunciation might have an impact on his
qualification and candidacy. In fact, at that time, Maquiling had already reached
this Court. But despite the petitions filed against him questioning his qualification
to run for public office in 2010, Arnado filed his CoC on October 1, 2012 unmindful
of any possible legal setbacks in his candidacy for the 2013 elections and without
executing another Affidavit of Renunciation. In short, the argument that Arnado
should be given the opportunity to correct the deficiency in his CoC since

54
Maquiling was promulgated after the lapse of the period for filing a CoC for the
2013 elections, is totally bereft of merit. Consistent with our April 16, 2013 ruling
in Maquiling, Arnado should be made to face the consequences of his inaction
since he could have remedied it at the time he filed his CoC on October 1, 2012 or
even before that. There is no law prohibiting him from executing an Affidavit of
Renunciation every election period if only to avert possible questions about his
qualifications. (Arnado v. Commission on Elections, G.R. No. 210164, [August
18, 2015])

9. Chua vs. Comelec (2016)

Dual citizens are disqualified from running for any elective local position.
They cannot successfully run and assume office because their ineligibility is
inherent in them, existing prior to the filing of their certificates of candidacy. Their
certificates of candidacy are void ab initio, and votes cast for them will be
disregarded. Consequently, whoever garners the next highest number of votes
among the eligible candidates is the person legally entitled to the position.

Petitioner was born to Filipino parents in 1967, which makes her a natural-
born Filipino under the 1935 Constitution. Ten years later, on December 7, 1977,
petitioner became a naturalized American. Hence, she lost her Filipino citizenship
pursuant to Section 1 of Commonwealth Act No. 63.

It was on September 21, 2011 when petitioner took an Oath of Allegiance

to the Republic of the Philippines, thus reacquiring her Filipino citizenship. 98
From September 21, 2011 up to the present, however, petitioner failed to execute
a sworn and personal renunciation of her foreign citizenship particularly required
of those seeking elective public office.

With petitioner's failure to execute a personal and sworn renunciation of

her American citizenship, petitioner was a dual citizen at the time she filed her
Certificate of Candidacy on October 3, 2012. Under Section 40 of the Local
Government Code, she was disqualified to run for Councilor in the Fourth District
of Manila during the 2013 National and Local Elections. (Chua v. Commission on
Elections, G.R. No. 216607, [April 5, 2016])

10. Tan Chong vs. Secretary of Labor (1947) – Jus Sanguinis or blood
relationship would now become the primary basis of citizenship by birth.

11. Who must be natural-born?

a. President (Sec. 2, Art. VII)

b. Vice President (Sec. 3, Art. VII)
c. Members of Congress (Secs. 3 & 6, Art. VI)
d. Justices of SC and lower collegiate courts (Sec. 7(1), Art. VIII)
e. Ombudsman and his deputies (Sec. 8, Art. XI)
f. Members of the Constitutional Commissions (Art. IX-B, IX-C and IX-D)
g. Members of the Monetary Board (Sec. 20, Art. XII)

55
 h. Members of the CHR (Sec. 17(2), Art. XIII)

12. Grounds for loss of citizenship

a. Naturalization in a foreign country

b. Express renunciation or expatriation

Note: expatriation is a constitutional right. No one can be compelled to

remain a Filipino if he does not want to (Go Guillian vs. Government).
Exception: A Filipino may not divest himself of Philippine citizenship in
any manner while the Republic of the Philippines is at war with any
country (Sec. 1(3), CA No. 63)

c. Taking an oath of allegiance to another country upon reaching the age of

majority.
d. Accepting a commission and serving in the armed forces of another
country, unless there is an offensive/defensive pact with the country, or
it maintains armed forces in RP.
e. Denaturalization
f. Being found by final judgment to be a deserter of the AFP.

Aznar vs. Comelec (1990) – Loss of Philippine citizenship cannot be

presumed. Considering the fact that admittedly Osmena was born a Filipino and
an American, the mere fact that he has a certificate stating that he is an American
does not mean that he is not still a Filipino, since there has been no express
renunciation of his Philippine citizenship.

See Dissenting Opinion of Justice Cruz in Aznar:

When a person rejects and divorces his wife to enter into a second
marriage, he cannot say he still loves her despite his desertion. The undeniable
fact is that he has left her for another woman to whom he has totally and solemnly
transferred his truth. It does him no credit when he protests he married a second
time simply for material convenience and that his heart still belongs to the wife he
has abandoned. At worst, it would reveal his sordid and deceitful character.

By the same token, professing continued allegiance to the Philippines after

renouncing it because of its meager resources, or for other ulterior and equally
base reasons, is to me a paltry form of patriotism. It is a sop to the repudiated state
and a slight to the adopted state. No matter how noble this attitude may appear to
others, it is to me nothing less than plain and simple hypocrisy that we should not
condone, let alone extol.

13. Ways of reacquiring Filipino citizenship

a. Naturalization
b. Repatriation
c. Direct act of Congress

56
14. Repatriation results in the recovery of the original nationality. Therefore, if
he is a natural born citizen before he lost his citizenship, he will be restored to his
former status as a natural born Filipino (Bengzon vs. HRET, 2001)

15. Citizens of the Philippines who marry aliens shall retain their citizenship,
unless by their act or omission, they are deemed, under the law, to have renounced
it.

16. Dual allegiance

Dual citizenship is different from dual allegiance. The former arises when,
as a result of the concurrent application of the different laws of two or more states,
a person is simultaneously considered a national by the said states. For instance,
such a situation may arise when a person whose parents are citizens of a state
which adheres to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states. Considering the
citizenship clause (Art. IV) of our Constitution, it is possible for the following
classes of citizens of the Philippines to posses dual citizenship: (1) Those born of
Filipino fathers and/or mothers in foreign countries which follow the principle of
jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if
by the laws of their fathers' country such children are citizens of that country; (3)
Those who marry aliens if by the laws of the latter's country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship. There may be other situations in which a citizen
of the Philippines may, without performing any act, be also a citizen of another
state; but the above cases are possible given the constitutional provisions on
citizenship. Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or more states.
While dual citizenship is involuntary, dual allegiance is the result of an individual's
volition. With respect to dual allegiance, Article IV, Section 5 of the Constitution
provides: "Dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law."(Mercado v. Manzano, G.R. No. 135083, [May 26, 1999],
367 PHIL 132-153)

17. Can a legitimate child born under the 1935 Constitution of a Filipino
mother and an alien father validly elect Philippine citizenship fourteen (14) years
after he has reached the age of majority? ||| (Re: Vicente D. Ching, B.M. No. 914
(Resolution), [October 1, 1999], 374 PHIL 342-355)

Ruling:

a. Ching, having been born on 11 April 1964, was already

thirty-five (35) years old when he complied with the requirements
of C.A. No. 625 on 15 June 1999, or over fourteen (14) years after he
had reached the age of majority. Based on the interpretation of the
phrase "upon reaching the age of majority," Ching's election was
clearly beyond, by any reasonable yardstick, the allowable period
within which to exercise the privilege. It should be stated, in this

57
connection, that the special circumstances invoked by Ching, i.e., his
continuous and uninterrupted stay in the Philippines and his being
a certified public accountant, a registered voter and a former elected
public official, cannot vest in him Philippine citizenship as the law
specifically lays down the requirements for acquisition of Philippine
citizenship by election.

b. However, the 1935 Constitution and C.A. No. 625 did not
prescribe a time period within which the election of Philippine
citizenship should be made. The 1935 Charter only provides that the
election should be made "upon reaching the age of majority." The
age of majority then commenced upon reaching twenty-one (21)
years. In the opinions of the Secretary of Justice on cases involving
the validity of election of Philippine citizenship, this dilemma was
resolved by basing the time period on the decisions of this Court
prior to the effectivity of the 1935 Constitution. In these decisions,
the proper period for electing Philippine citizenship was, in turn,
based on the pronouncements of the Department of State of the
United States Government to the effect that the election should be
made within a "reasonable time" after attaining the age of majority.
The phrase "reasonable time" has been interpreted to mean that the
election should be made within three (3) years from reaching the
age of majority.

c. The span of fourteen (14) years that lapsed from the time he
reached the age of majority until he finally expressed his intention
to elect Philippine citizenship is clearly way beyond the
contemplation of the requirement of electing "upon reaching the
age of majority." Moreover, Ching has offered no reason why he
delayed his election of Philippine citizenship. The prescribed
procedure in electing Philippine citizenship is certainly not a
tedious and painstaking process. All that is required of the elector is
to execute an affidavit of election of Philippine citizenship and,
thereafter, file the same with the nearest civil registry. Ching's
unreasonable and unexplained delay in making his election cannot
be simply glossed over.

Philippine citizenship can never be treated like a commodity

that can be claimed when needed and suppressed when convenient.
20 One who is privileged to elect Philippine citizenship has only an
inchoate right to such citizenship. As such, he should avail of the
right with fervor, enthusiasm and promptitude. Sadly, in this case,
Ching slept on his opportunity to elect Philippine citizenship and, as
a result, this golden privilege slipped away from his grasp.

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 Note 3

CONSTITUTIONAL LAW REVIEW

Prof. Rolando B. Faller

SEPARATION OF POWERS
AND DELEGATION OF POWERS

I. Separation of Powers

1. The separation of powers is a fundamental principle in our system of

government. It obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system
of checks and balances to secure coordination in the workings of the various
departments of the government. (Angara vs. Electoral Commission)

The theory is that “a power definitely assigned by the Constitution to one

department can neither be surrendered nor delegated by that department nor
vested by statute in another department or agency.

The Court has consistently stressed that "the doctrine of separation of

powers calls for the executive, legislative and judicial departments being left alone
to discharge their duties as they see fit" (Tan vs. Macapagal, 43 SCRA 677). It has
thus maintained in the same way that the judiciary has a right to expect that
neither the President nor Congress would cast doubt on the mainspring of its
orders or decisions, it should refrain from speculating as to alleged hidden forces
at work that could have impelled either coordinate branch into acting the way it
did. The concept of separation of powers presupposes mutual respect by and
between the three departments of the government. (Tecson vs. Salas, 34 SCRA
275, 286-287).||| (In re: Laureta, G.R. No. 68635 (Resolution), [March 12, 1987],
232 PHIL 353-390)

2. In essence, separation of powers means that legislation belongs to

Congress, execution to the Executive, and settlement of legal controversies to the
judiciary.

59
 Realistically, the practical demands of efficient government would prevent
strict observance of the principle of separation of powers. Thus, it has been said
that in determining the constitutionality of the exercise of power by a department,
the question to be asked is not whether the power is essentially legislative,
executive or judicial, but whether it has been specifically vested in it by the
Constitution, or properly incidental to the performance of the functions of that
department. And where the power is not peculiarly or distinctly legislative,
executive or judicial, it is within the authority of the legislature to determine
where its exercise would belong.||| (Ho v. Municipal Board of Canvassers of
Bongao, Sulu, G.R. No. L-29051, [July 28, 1969], 139 PHIL 101-110)

3. The underlying reason of this principle is the assumption that arbitrary

rule and abuse of authority would inevitably result from the concentration of the
three powers of government in the same person, body of persons or organs. In the
word of Justice Laurel, the doctrine of separation of powers is intended to: (a)
secure action; (b) forestall overaction; (c) prevent despotism; and (d) obtain
efficiency. (Pangasinan Transportation vs. PSC)

4. Limitations on the principle of separation of powers

a. System of checks and balances

b. Existence of overlapping powers, i.e, power of appointment being
shared by heads of the 3 branches of government.

5. Checks and Balances

The principle of checks and balances and the principle of the separation of
powers are not limited to the interaction of the powers of the Executive,
Legislative, and the Judiciary. The principle of checks and balances, as well as
separation of powers, also applies to the interaction of the three branches of
government with the other constitutional organs, particularly the Constitutional
Commissions as well as the Office of the Ombudsman. Angara itself was an
elaborate examination of the relationship of the three branches with the Electoral
Commission, which this court in Angara ruled was, indeed, an independent
constitutional organ.

The principle of checks and balances allows constitutionally enshrined

bodies or organs and governmental departments to correct mistakes and prevent
excesses done by other branches. It also ensures a degree of cooperation while
being clear as to what acts may constitute undue encroachments upon another
branch's or organ's constitutional duties. (J. Leonen, Separate Opinion, Gonzales
III v. Office of the President of the Philippines, G.R. No. 196231, 196232, [January
28, 2014])

To carry out the system of checks and balances, the Constitution provides:

a. The acts of the legislative department have to be presented to the

executive for approval or disapproval.

60
 b. The executive department may veto the acts of the legislature if in
its judgment they are not in conformity with the Constitution or are
detrimental to the interests of the people.
c. The courts are authorized to determine the validity of legislative
measures or executive acts.
d. Through its pardoning power, the executive may modify or set aside
the judgments of the courts.
e. The legislature may pass laws that in effect amend or completely
revoke decisions of the courts if in its judgment they are not in
harmony with its intention or policy which is not contrary to the
Constitution.
f. The president must obtain the concurrence of Congress to complete
certain significant acts.
g. Money can be released from the treasury only by authority of
Congress.

II. Delegation of Powers

1. Corollary to the doctrine of separation of powers is the principle of non-

delegation of powers. "The rule is that what has been delegated, cannot be
delegated or as expressed in a Latin maxim: potestas delegata non delegari potest."
(Santiago vs. Comelec). The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI
of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of
Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.
(Echegaray v. Secretary of Justice, G.R. No. 132601, [October 12, 1998], 358 PHIL
410-476)

2. Delegation of Tariff Powers

Under Section 24, Article VI of the Constitution, the enactment of

appropriation, revenue and tariff bills, like all other bills is, of course, within the
province of the Legislative rather than the Executive Department. It does not
follow, however, that therefore Executive Orders Nos. 475 and 478, assuming they
may be characterized as revenue measures, are prohibited to the President, that
they must be enacted instead by the Congress of the Philippines. There is explicit
constitutional permission (Section 28[2] of Article VI of the Constitution) to
Congress to authorize the President "subject to such limitations and restrictions
as [Congress] may impose" to fix "within specific limits" "tariff rates . . . and other
duties or imposts . . . ." The relevant congressional statute is the Tariff and Customs
Code of the Philippines, and Sections 104 and 401, the pertinent provisions
thereof. These are the provisions which the President explicitly invoked in
promulgating Executive Orders Nos. 475 and 478.||| (Garcia v. Executive
Secretary, G.R. No. 101273, [July 3, 1992])

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3. Delegation of Emergency powers to the President

a. Section 23 2nd Paragraph Art. VI

(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.

b. What are the requirements for Emergency powers to applied?

Used/granted only during war or other national emergency Limited period

only Subject to such restrictions as it may prescribe pursuant to a declared
national policy.

c. David vs. Macapagal-Arroyo

A distinction must be drawn between the President's authority to declare

"a state of national emergency" and to exercise emergency powers. To the first,
as elucidated by the Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be raised. But to the second,
manifold constitutional issues arise.

It may be pointed out that the second paragraph of the above provision
refers not only to war but also to "other national emergency." If the intention of
the Framers of our Constitution was to withhold from the President the authority
to declare a "state of national emergency" pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence
of a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a
"state of national emergency." The logical conclusion then is that President Arroyo
could validly declare the existence of a state of national emergency even in the
absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a different matter.
This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to
be construed together. Otherwise stated, different clauses, sections, and
provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each other. Considering that
Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to
national emergencies, they must be read together to determine the limitation of
the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is

evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such

62
powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may not be
possible or practicable for Congress to meet and exercise its powers, the Framers
of our Constitution deemed it wise to allow Congress to grant emergency powers
to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
( 3) The delegation must be subject to such restrictions as the Congress
may prescribe.
(4) The emergency powers must be exercised to carry out a national
policy declared by Congress.

Section 17, Article XII must be understood as an aspect of the emergency

powers clause. The taking over of private business affected with public interest is
just another facet of the emergency powers generally reposed upon Congress.
Thus, when Section 17 states that the "the State may, during the emergency and
under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected with
public interest," it refers to Congress, not the President. Now, whether or not the
President may exercise such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the reasonable terms thereof.
(David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483,
171400, 171489 & 171424, [May 3, 2006], 522 PHIL 705-854)

4. Delegation to administrative agencies

a. Quasi-legislative power – power to legislate rules and regulations in order

to implement a given policy. This term is equivalent to rule-making power and
power of subordinate legislation.
b. When an administrative agency exercise quasi-legislative power, it
promulgates administrative regulations or implementing rules and regulations.
They are referred to as pieces of subordinate legislation. In case of conflict
between administrative legislation and a provision of law, the provision of law
prevails.
c. Administrative authorities are vested with the power to make rules and
regulations because it is impractical for the lawmakers to provide general
regulations for various and varying details of management. (PNOC vs. CA, 457
SCRA 32)
d. The power of administrative agencies is confined to implementing the law
or putting it into effect. Corollary to this guideline is that administrative regulation
cannot extend the law and amend a legislative enactment. It is axiomatic that the
clear letter of the law is controlling and cannot be amended by a mere
administrative rule issued for its implementation. Indeed, administrative or
executive acts, orders, and regulations shall be valid only when they are not
contrary to the laws or the Constitution.||| (Metropolitan Bank and Trust
Company, Inc. v. National Wages and Productivity Commission, G.R. No. 144322,
[February 6, 2007], 543 PHIL 318-340)
e. Administrative agencies possess quasi-legislative or rule-making powers
and quasi-judicial or administrative adjudicatory powers. Quasi-legislative or

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rule-making power is the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and the
doctrine of non-delegability and separability of powers. The rules and regulations
that administrative agencies promulgate, which are the product of a delegated
legislative power to create new and additional legal provisions that have the effect
of law, should be within the scope of the statutory authority granted by the
legislature to the administrative agency. It is required that the regulation be
germane to the objects and purposes of the law, and be not in contradiction to, but
in conformity with, the standards prescribed by law. They must conform to and
be consistent with the provisions of the enabling statute in order for such rule or
regulation to be valid. Constitutional and statutory provisions control with respect
to what rules and regulations may be promulgated by an administrative body, as
well as with respect to what fields are subject to regulation by it. It may not make
rules and regulations which are inconsistent with the provisions of the
Constitution or a statute, particularly the statute it is administering or which
created it, or which are in derogation of, or defeat, the purpose of a statute. In case
of conflict between a statute and an administrative order, the former must prevail.
(Smart Communications, Inc. v. National Telecommunications Commission,
G.R. No. 151908, 152063, [August 12, 2003])

5. Delegation to LGUs.

a. LGUs have no inherent powers. There must an express conferment of such

powers or those implied from the powers delegated to them.

6. Tests of valid delegation of powers:

a. Completeness test – The law must be complete in itself, setting forth

therein the policy to be executed, carried out, or implemented by the delegate (no
need to fill in the blanks)

b. Sufficiency of Standard test - The law must fix a standard, the limits of
which are sufficiently determinate or at least determinable. It indicates the
circumstances under which the legislative command is to be effected.

The following have been held sufficient as legislative standards justifying

delegation of authority to regulate:

i. “in the interest of law and order” (Rubi vs. Provincial Board of
Mindoro)
ii. “public interest” (People vs. Rosenthal, 68 Phil. 328)
iii. “justice and equity and substantial merit of the case” (Int’l
Hardwood & Veneer vs. Pangil Federation, 70 Phil. 602)
iv. “public welfare” (Calalang vs. Williams)
v. “simplicity, economy and efficiency” (Cervantes vs. Auditor General)
vi. “adequate and efficient instruction” (PACU vs. Sec. of Education)
vii. “to maintain monetary stability” (People vs. Jolliffe)

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 Note 4
CONSTITUTIONAL LAW REVIEW

Prof. Rolando B. Faller

LEGISLATIVE DEPARTMENT

I. Concepts

1. Definition of Legislative Power - is the authority to make laws and

to alter or repeal them.

2. Legislative power is vested in Congress except to the extent

reserved to the people by the provision on initiative and
referendum.

3. Congress may legislate on any subject matter. (Vera v. Avelino) In

other words, the legislative power of Congress is plenary.

4. Limitations on the exercise of legislative power

a. Substantive limitations

a.1. Express limitations

i. Bill of Rights provisions

ii. Appropriation measures
iii. Taxation
iv. Appellate jurisdiction of the Supreme Court
v. Prohibition to grant title of royalty or nobility

a.2. Implied limitations

1. Congress cannot legislate an irrepealable law

2. Congress cannot delegate legislative power
3. Non-encroachment of other powers of co-equal
branches

b. Procedural limitations

i. Only one subject

ii. Three readings on separate days

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 iii. Printed copies in its final form 3 days before passage
of the bill. (art 6 § 26)

II. Non-delegation of Legislative Power

1. Doctrine of Non-delegation of legislative powers: The rule is delegata

potestas non potest delegari -what has been delegated cannot be
delegated. The doctrine rests on the ethical principle that a delegated
power constitutes not only a right but also duty to be performed by the
delegate through the instrumentality of his own judgment and not
through the intervening mind of another.

2. Rationale of the doctrine of non-delegability of legislative power

a. Based on the separation of powers. (Why go to the trouble of

separating the three powers of government if they can straightaway
remerge on their own notion?)
b. Based on due process of law. Such precludes the transfer of
regulatory functions to private persons.
c. Based on the maxim, “degelata potestas non potest delegari”
meaning what has been delegated already cannot be further
delegated.

3. Valid delegation of legislative power

General Rule: Legislative power cannot be delegated.

Exceptions:

a. Delegation of tariff power to the President

b. Delegation of emergency powers to the President
c. Delegation to LGU’s

4. Delegation of rule-making power

a. What is delegated to administrative bodies is not legislative power

but rule-making power or law execution. Administrative agencies
may be allowed either to: (i) fill up the details on otherwise
complete statute; or (ii) Ascertain the facts necessary to bring a
“contingent” law or provision into actual operation.

b. Power of Subordinate Legislation. It is the authority of the

administrative body tasked by the legislature to implement laws to
promulgate rules and regulations to properly execute and
implement laws.

c. Contingent Legislation – See Abakada Guru Party List Officers v.

Executive Secretary, G.R. 168056, September 1, 2005. Reconsidered October

66
18, 2005 where the standby authority given to the President to increase the
value added tax rate in the VAT Law, R.A. 9337 was upheld as an example of
contingent legislation where the effectivity of the law is made to depend on the
verification by the executive of the existence of certain conditions.

d. Requisites for a valid delegation of rule-making power or execution

i. The delegating law must be complete in itself– it must set

therein the policy to be carried out or implemented by the
delegate.

Note: Without a statutory declaration of policy, the delegate

would, in effect, make or formulate such policy, which is the
essence of every law.

ii. The delegating law must fix a sufficient standard- the limits
of which are sufficiently determinate or determinable, to
which the delegate must conform in the performance of his
functions.

Note: Without standard, there would be no means to

determine with reasonable certainty whether the delegate
has acted within or beyond the scope of his authority. Hence,
he could thereby arrogate upon himself the power, not only
to make law, but also to unmake it, by adopting measures
inconsistent with the end sought to be attained by the Act of
Congress.

e. Standards

1. A legislative standard need not be explicit or formulated in precise

declaratory language. It can be drawn from the declared policy of
the law and from the totality of the delegating statute. (Osmena v.
Orbos) It can be implied from the policy and purpose of the law
(Agustin v. Edu)

2. A legislative standard may be found in various parts of the statute.

(Tablarin v. Gutierrez)

3. A legislative standard need not be found in the law challenged and

may be embodied in other statues on the same subject.
(Chiongbayan v Orbos)
4. See Bayan vs. Ermita, where petitioners questioned the grant of the
powers to mayors to issue permits for public assemblies in the
Public Assembly Act on the ground that it constituted an undue
delegation of legislative power. There is however a reference to
“imminent and grave danger of a substantive evil: in Section 6(c).
The SC held that the law provides a precise and sufficient standard,
the clear and present danger test in Section 6(a). The reference to

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 imminent and grave danger of a substantive evil in Section 6(c)
substantially means the same.

f. Examples of sufficient standards

i. “Necessary or advisable in the public interest” as a standard.

Public interest in this case is sufficient standard pertaining
to the issuance or cancellation of certificates or permits. And
the term “public interest’ is not without a settled meaning.
(People vs. Rosenthal)
ii. “Necessary in the interest of law and order” as a standard. An
exception to the general rule, sanctioned by immemorial
practice, permits the central legislative body to delegate
legislative powers to local authorities. (Rubi vs. Provincial
Board of Mindoro)
iii. “To promote simplicity, economy and efficiency” as a standard.
(Cervantes vs. Auditor General)
iv. “Of a moral, educational, or amusing and harmless character”
as a standard. (Mutual Film Co. vs. Industrial Commission of
Ohio)
v. “To maintain monetary stability promote a rising level of
production, employment and real income” as a standard.
(People vs. Jollife)
vi. “Adequate and efficient instruction” as standard. (Philippine
Association of Colleges and Universities vs. Sec. of Education.)
vii. “Justice and equity and substantial merits of the case” as a
standard. The discretionary power thus conferred is judicial
in character and does not infringe upon the principle of
separation of powers the prohibition against the delegation
of legislative function (International Hardwood and Veneer
Co. vs. Pangil Federation of Labor)
viii “Fair and equitable employment practices” as a standard. The
power of the POEA in requiring the model contract is not
unlimited as there is a sufficient standard guiding the
delegate in the exercise of the said authority. (Eastern
Shipping Lines Inc. vs. POEA)
ix. “As far as practicable”, “decline of crude oil prices in the
world market” and “stability of the peso exchange rate to the
US dollar” as standards. The dictionary meanings of these
words are well settled and cannot confuse men of reasonable
intelligence. (However, by considering another factor to
hasten full deregulation, the Executive Department rewrote
the standards set forth in the statute. The Executive is bereft
of any right to alter either by subtraction or addition the
standards set in the statute.) (Tatad vs. Sec of Energy)

g. Examples of invalid delegation of legislative power

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 i. Ynot vs. IAC - Where there is no standard that the officials
must observe in determining to whom to distribute the
confiscated carabaos and carabeef, there is thus an invalid
delegation of legislative power.
ii. People vs. Dacuycuy - Where a provision provides that the
penalty would be a fine or 100 pesos OR imprisonment in the
discretion of the court without prescribing the minimum and
maximum periods of imprisonment, a penalty imposed
based thereon is unconstitutional. It is not for the courts to
fix the term of imprisonment where no points of reference
have been provided by the legislature.
iii. People vs. Vera - Where the legislature has not made the
operation (execution) of a statute contingent upon specified
facts or conditions to be ascertained by the provincial board
but in reality leaves the entire matter for the various
provincial boards to determine, such constitute an
unconstitutional delegation of legislative power. A law may
not be suspended as to certain individuals only, leaving the
law to be enjoyed by others.

III. Powers of Congress

1. Inherent Powers

a. Police Power
b. Power of Taxation
c. Power of Eminent Domain
d. Implied Powers (Contempt Power)

2. Express Powers

a. Legislative Power (art 6 sec1)

(i) Ordinary- power to pass ordinary laws
(ii) Constituent- power to amend and or revise the
Constitution
b. Power of the Purse (art. 6§25)
c. Power of Taxation (art. 6 §28(3), art. 14 §4(3), art 6, §29(4))
d. Investigatory Power (art. 6 §21)
e. Oversight function (art. 6 §22)
f. Power to declare the existence of state of war (art. 6 §23(1))
g. Power to act as Board of Canvassers in election of
President (art 7 §4)
h. Power to call a special election for President and Vice-
President. (art. 7 §10)
i. Power to judge President’s physical fitness to discharge the
functions of the Presidency (art. 7§11)
j. Power to revoke or extend suspension of the privilege of the
writ of habeas corpus or declaration of martial law. (art. 7
§18)

69
 k. Power to concur in Presidential amnesties. Concurrence of
majority of all the members of Congress. (art.7 §19)
l. Power to concur in treaties or international agreements.
Concurrence of at least 2/3 of all the members of the
Senate.(art.7 §21)
m. Power to confirm certain appointments/nominations made
by the President (art.7 §9, art.7§16)
n. Power of Impeachment (art.11§2)
o. Power relative to natural resources147 (art. 12 §2)
p. Power of internal organization (i) Election of officers (ii)
Promulgate internal rules (iii) Disciplinary powers (art.6
§16)

IV. Composition

1. Congress of the Philippines is in bicameral form: House of Senate and

House of Representatives.

2. The Senate is a continuing body (Arnault vs. Nazareno 1950), where

the SC held:

“The Senate of the Philippines is a continuing body whose members are

elected for a term of six years and so divided that the seats of only one-
third become vacant every two years, two-thirds always continuing
into the next Congress save as vacancies may occur thru death or
resignation.”

But see Neri v. Senate Committee on Accountability of Public Officers and

Investigations, G.R. No. 180643, G.R. No. 180643, [September 4, 2008], 586 PHIL
135-220) where the SC held:

“On the nature of the Senate as a "continuing body", this Court sees
fit to issue a clarification. Certainly, there is no debate that the Senate
as an institution is "continuing", as it is not dissolved as an entity with
each national election or change in the composition of its members.
However, in the conduct of its day-to-day business the Senate of each
Congress acts separately and independently of the Senate of the
Congress before it. Xxx Undeniably from the foregoing, all pending
matters and proceedings, i.e., unpassed bills and even legislative
investigations, of the Senate of a particular Congress are considered
terminated upon the expiration of that Congress and it is merely
optional on the Senate of the succeeding Congress to take up such
unfinished matters, not in the same status, but as if presented for the
first time.”

3. The House of Representatives is composed of not more than 250

members, unless otherwise fixed by law.

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 a. Two types of representatives: (i) district representatives; (ii) party-
list representatives.
b. City with a population of 250,000 or a province is entitled to one
legislative district. Take note, however, that a city that has attained
a population of 250,000 is entitled to a legislative district only in the
“immediately following election. (Aldaba vs. Comelec, March 15,
2010)
c. See Sema vs. Comelec (G.R. No. 177597, July 16, 2008), where the SC
held that new legislative districts may be created only by law and
not by an ordinance passed by a local legislative body, declaring:
“Only Congress can create provinces and cities because the creation
of provinces and cities necessarily includes the creation of
legislative districts, a power only Congress can exercise under Sec.
5, Art. VI of the Constitution.”
d. See Bagabuyo vs. Comelec (G.R. No. 176970, December 8, 2008)
where it was held that plebiscite is not required to be held in case
of a mere reapportionment of legislative districts.
e. See Tobias vs. Abalos, 239 SCRA 106, where the SC held that
reapportionment of legislative districts may be made through
special law. Thus, in Montejo vs. Comelec, March 16, 1995, it was
held that the conversion of Biliran into a regular province, which
entitled it to 1 legislative district, the remedy is not with the SC but
with Congress questioning the reapportionment.

4. Party-list representatives

a. It is a mechanism of proportional representation in the election of

representatives to the House of Representatives from national,
regional and sectoral parties or organizations or coalitions thereof
registered with the Comelec.
b. Party-list representatives shall constitute 20% of the total number
of representatives in the House of Representatives.
c. Doctrines in BANAT VS. COMELEC GR NO. 179271, July 8. 2009

i. 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.
ii. 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.
iii. 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

71
 the additional seats is now unconstitutional because this
threshold mathematically and physically prevents the filling
up of the available party-list seats.
iv. 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.
v. In computing the allocation of additional seats, the
continued operation of the 2% threshold for the distribution
of the additional seats as found in the second clause of Sec.
11(b) of R.A. 7941 which provides that “those garnering
more than 2% of the votes shall be entitled to additional
seats in proportion to their total number of votes” is
unconstitutional. The 2% threshold frustrates the
attainment of the permissive ceiling that 20% of the
members of the HR shall consist of party-list representatives.

d. Doctrines in Atong Paglaum vs. Comelec (2013)

i. Three different groups may participate in the party-list

system: (1) national parties or organizations, (2) regional
parties or organizations, and (3) sectoral parties or
organizations.
ii. National parties or organizations and regional parties or
organizations do not need to organize along sectoral lines
and do not need to represent any "marginalized and
underrepresented" sector.
iii. Political parties can participate in party-list elections
provided they register under the party-list system and do
not field candidates in legislative district elections. A
political party, whether major or not, that fields candidates
in legislative district elections can participate in party-list
elections only through its sectoral wing that can separately
register under the party-list system. The sectoral wing is by
itself an independent sectoral party, and is linked to a
political party through a coalition.
iv. Sectoral parties or organizations may either be
"marginalized and underrepresented" or lacking in "well-
defined political constituencies." It is enough that their
principal advocacy pertains to the special interest and
concerns of their sector. The sectors that are "marginalized
and underrepresented" include labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, handicapped,
veterans, and overseas workers. The sectors that lack "well-
defined political constituencies" include professionals, the
elderly, women, and the youth.

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 v. A majority of the members of sectoral parties or
organizations that represent the "marginalized and
underrepresented" must belong to the "marginalized and
underrepresented" sector they represent. Similarly, a
majority of the members of sectoral parties or organizations
that lack "well-defined political constituencies" must belong
to the sector they represent. The nominees of sectoral
parties or organizations that represent the "marginalized
and underrepresented," or that represent those who lack
"well-defined political constituencies," either must belong to
their respective sectors, or must have a track record of
advocacy for their respective sectors. The nominees of
national and regional parties or organizations must be bona-
fide members of such parties or organizations.
vi. National, regional, and sectoral parties or organizations shall
not be disqualified if some of their nominees are disqualified,
provided that they have at least one nominee who remains
qualified.

e. A party-list who failed to participate in the last two preceding

elections, and that it failed to obtain at least 2% of the votes cast in
the two preceding elections for the constituency in which it was
registered, may be delisted (Philippine Guardians Brotherhood,
Inc. vs. Comelec, April 29, 2010)

f. Moral disapproval, without more, is not a sufficient governmental

interest to justify exclusion of homosexuals in the participation in
the party-list system, for as long as that particular organization
complies with the requirements of the Constitution and RA No.
7941 (Ang Ladlad LGBT Party vs. Comelec, April 8, 2010)

V. Qualifications of Members of Congress

1. Common Qualifications
a. Natural born citizen
b. Registered voter
c. Resident of the Philippines

2. Residency requirement

a. For political purposes the concepts of residence and domicile

are dictated by the peculiar criteria of political laws. As these
concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.| (Romualdez-
Marcos v. Commission on Elections, G.R. No. 119976,
[September 18, 1995], 318 PHIL 329-466)

73
 b. To successfully effect a change of domicile, petitioner must
prove an actual removal or an actual change of domicile, a bona
fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with
the purpose. These requirements are hardly met by the evidence
adduced in support of petitioner's claims of a change of domicile
from Tarlac to the Second District of Makati. In the absence of
clear and positive proof, the domicile of origin should be deemed
to continue. (Aquino v. COMELEC, G.R. No. 120265, [September
18, 1995], 318 PHIL 467-539)
c. To establish a new domicile of choice, personal presence in the
place must be coupled with conduct indicative of that intention.
While "residence" simply requires bodily presence in a given
place, "domicile" requires not only such bodily presence in that
place but also a declared and probable intent to make it one’'s
fixed and permanent place of abode, one's home. As a general
rule, the principal elements of domicile, physical presence in the
locality involved and intention to adopt it as a domicile, must
concur in order to establish a new domicile. No change of
domicile will result if either of these elements is absent.
Intention to acquire a domicile without actual residence in the
locality does not result in acquisition of domicile, nor does the
fact of physical presence without intention. (Domino v.
COMELEC, G.R. No. 134015, [July 19, 1999], 369 PHIL 798-829)

VI. Privileges of Members

1. Privilege from arrest

a. A member of Congress is privileged from arrest while Congress is in

session in all offenses (criminal and civil) not punishable by more
than 6 years imprisonment (Sec.11, Art. VI), to ensure
representation of the constituents of the member of Congress by
preventing attempts to keep him from attending sessions.

b. The immunity from arrest or detention of Senators and members of

the House of Representatives, the latter customarily addressed as
Congressmen, arises from a provision of the Constitution. The
history of the provision shows that the privilege has always been
granted in a restrictive sense. The provision granting an exemption
as a special privilege cannot be extended beyond the ordinary
meaning of its terms. It may not be extended by intendment,
implication or equitable considerations.
The 1935 Constitution provided in its Article VI on the Legislative
Department: Sec. 15. The Senators and Members of the House of
Representatives shall in all cases except treason, felony, and breach
of the peace be privileged from arrest during their attendance at the
sessions of Congress, and in going to and returning from the same; .

74
 . .. Because of the broad coverage of felony and breach of the peace,
the exemption applied only to civil arrests. A congressman like the
accused-appellant, convicted under Title Eleven of the Revised
Penal Code could not claim parliamentary immunity from arrest. He
was subject to the same general laws governing all persons still to
be tried or whose convictions were pending appeal. The 1973
Constitution broadened the privilege of immunity as follows: Article
VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses
punishable by not more than six years imprisonment, be privileged
from arrest during his attendance at its sessions and in going to and
returning from the same. For offenses punishable by more than six
years imprisonment, there was no immunity from arrest. The
restrictive interpretation of immunity and the intent to confine it
within carefully defined parameters is illustrated by the concluding
portion of the provision, to wit: . . . but the Batasang Pambansa shall
surrender the member involved to the custody of the law within
twenty four hours after its adjournment for a recess or for its next
session, otherwise such privilege shall cease upon its failure to do
so. The present Constitution adheres to the same restrictive rule
minus the obligation of Congress to surrender the subject
Congressman to the custody of the law. The requirement that he
should be attending sessions or committee meetings has also been
removed. For relatively minor offenses, it is enough that Congress
is in session (People v. Jalosjos, G.R. Nos. 132875-76 (Resolution),
[February 3, 2000], 381 PHIL 690-713)

c. The performance of legitimate and even essential duties by

public officers has never been an excuse to free a person validly in
prison. The duties imposed by the "mandate of the people" are
multifarious. The accused-appellant asserts that the duty to
legislate ranks highest in the hierarchy of government. The accused-
appellant is only one of 250 members of the House of
Representatives, not to mention the 24 members of the Senate,
charged with the duties of legislation. Congress continues to
function well in the physical absence of one or a few of its members.
. . . Never has the call of a particular duty lifted a prisoner into a
different classification from those others who are validly restrained
by law. (Trillanes IV v. Pimentel, Sr., G.R. No. 179817, [June 27,
2008], 578 PHIL 1002-1021, citing People vs. Jalosjos)

2. Privilege from Speech and Debate

a. While parliamentary immunity guarantees the legislator complete

freedom of expression without fear of being made responsible in
criminal or civil actions before the courts or any other forum outside of
the Congressional Hall, however, it does not protect him from
responsibility before the legislative body itself whenever his words and
conduct are considered by the latter disorderly or unbecoming a
member thereof. For unparliamentary conduct, members of Congress

75
 can be censured, committed to prison, suspended, even expelled by the
votes of their colleagues.||| (Osmeña, Jr. v. Pendatun, G.R. No. L-17144,
[October 28, 1960])

b. “Speech or debate” includes utterances made by Congressmen in the

performance of their official functions, such as speeches delivered,
statements made, or votes cast in the halls of Congress, while the same
is in session as well as bills introduced in Congress, whether the same
is in session or not, and other acts performed by Congressmen, either
in Congress or outside the premises housing its offices, in the official
discharge of their duties as members of Congress and of Congressional
Committees duly authorized to perform its functions as such at the time
of the performance of the acts in question. (Jimenez v. Cabangbang,
G.R. No. 15905, [August 3, 1966], 124 PHIL 296-302)

c. To come under the privilege, it is not essential that the Congress be in

session when the utterance is made. What is essential is that the
utterance must constitute “legislative action”, that is, it must be part of
the deliberative and communicative process by which legislators
participate in committee or congressional proceedings in the
consideration of proposed legislation or of other matters which the
Constitution has placed within the jurisdiction of Congress. (Gravel vs.
US, 408 US 606 [1972])

d. The rule provides that the legislator may not be questioned “in any
other place” which means that he may be called to account for his
remarks by his own colleagues in Congress itself and, when warranted,
punished for “disorderly behavior.”

VII. Disqualifications/Prohibition

1. Incompatible Office

a. A member of Congress may not hold, during his tenure, any other
office in the government or in any of its instrumentality, including
GOCCs or their subsidiaries. (Sec.13)
b. The prohibition is not absolute; what is not allowed is the
simultaneous holding of that office and the seat in Congress.
c. Not every other office or employment is to be regarded as
incompatible with the legislative position. Membership in the
electoral tribunal is permitted by the Constitution.
d. See Liban vs. Gordon, Jan. 8. 2011, where the SC ruled that Senator
Gordon cannot be disqualified to continue his position as Senator
for his simultaneous holding of the position of Chairman of
Philippine Red Cross because this organization is not a government
agency or instrumentality.

2. Forbidden office

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 a. The disqualification in the second sentence of Sec. 13 applies for the
duration of the term of the member even if he resigns from Congress
before the end of his term. The office created, or its emoluments
increased during the term need not be a civil one; it could be a
military office. (Bernas)
b. The prohibition does not apply to elective offices, which are filled
by the voters themselves.

3. Prohibition as lawyer-legislator

a. This will not apply to law firm where the lawyer-legislator may be
a member. The lawyer-legislator may still engage in the practice of
his profession except that when it comes to trials and hearings
before the courts and other agencies, appearance may be made not
by him but by some members of his law office. (Cruz, Philippine
Political Law)

b. However, certain salient circumstances militate against the

intervention of Assemblyman Fernandez in the SEC Case. He had
acquired a mere P200.00 worth of stock in IPI, representing ten
shares out of 262,843 outstanding shares. He acquired them "after
the fact," that is, on May 30, 1979, after the contested election of
Directors on May 14, 1979, after the quo warranto suit had been
filed on May 25, 1979 before SEC and one day before the scheduled
hearing of the case before the SEC on May 31, 1979.

Under those facts and circumstances, we are constrained to find

that there has been an indirect "appearance as counsel before . . .
any administrative body and, in our opinion, that is a circumvention
of the Constitutional prohibition. The "intervention" was an
afterthought to enable him to appear actively in the proceedings in
some other capacity. To believe the avowed purpose, that is, to
enable him eventually to vote and to be elected as Director in the
event of an unfavorable outcome of the SEC Case would be pure
naivete. He would still appear as counsel indirectly. A ruling
upholding the "intervention" would make the constitutional
provision ineffective. All an Assemblyman need do, if he wants to
influence an administrative body is to acquire a minimal
participation in the "interest" of the client and then "intervene" in
the proceedings. That which the Constitution directly prohibits may
not be done by indirection or by a general legislative act which is
intended to accomplish the objects specifically or impliedly
prohibited. In brief, we hold that the intervention of Assemblyman
Fernandez in SEC No. 1747 falls within the ambit of the prohibition
contained in Section 11, Article VIII of the Constitution. ||| (Puyat v.
De Guzman, Jr., G.R. No. 51122, [March 25, 1982], 198 PHIL 420-427)

VIII. Internal Government of Congress

77
 1. Congress shall convene once every year for its regular session

a. A special session is one called by the President while Congress is in

recess.
b. A mandatory recess is prescribed for the 30-day period before the
opening of the next regular session, excluding Saturdays, Sundays
and holidays.
c. The President’s call is not necessary in some instances:

i. When Congress meets to canvass the presidential elections.

ii. To call a special election when both the Presidency and Vice
Presidency are vacated.
iii. When it decided to exercise the power of impeachment when
the President is the respondent himself.

2. Joint Sessions

a. Voting separately

i. Choosing the President (Sec. 4, Art. 7)

ii. Determine the President’s disability (Sec. 11, Art. 7)
iii. Confirming the nomination of the Vice President (Sec. 9,
Art.7)
iv. Declaring the existence of state of war (Sec. 23, Art. 6)
v. Proposing constitutional amendments (Sec. 1, Art. 17)

b. Voting jointly

i. To revoke or extend the proclamation suspending the

privilege of the writ of habeas corpus or placing the
Philippines under martial law. (Sec. 18, Art. 7)

c. Instances when Congress votes other than majority

i. To suspend or expel a member in accordance with its rules

and proceedings: 2/3 of all its members (Sec. 16, Art. 6)
ii. Yeas and nays entered in the Journal: 1/5 of the members
present (sec. 16(4), Art. 6)
iii. Declare the existence of state of war: 2/3 of both houses in
joint session voting separately.
iv. Re-passing of the bill after the presidential veto: 2/3 of the
members of each house.
v. Determining President’s disability after submission by both
the Cabinet and the President: 2/3 of both houses voting
separately.
vi. Amendment or revision of the Constitution: ¾ votes of all
members of Congress (Sec. 1, Art. 17)
vii. Calling of constitutional convention (Sec.3, Art. 17)

78
3. Adjournment

a. Either House may adjourn even without the consent of the other
House provided that it will not be more than 3 days. If it is more
than 3 days, consent of the other House is required.

4. Officers of Congress

a. Senate President and House Speaker

b. Such other officers as each House may deem necessary.
c. A fortiori we should abstain in this case because the selection of
the presiding officer affects only the Senators themselves who
are at liberty at any time to choose their officers, change or
reinstate them. Anyway, if, as the petition must imply to be
acceptable, the majority of the Senators want petitioner to
preside, his remedy lies in the Senate Session Hall — not in the
Supreme Court.
The Court will not sally into the legitimate domain of the Senate
on the plea that our refusal to intercede might lead into a crisis,
even a revolution. No state of things has been proved that might
change the temper of the Filipino people as a peaceful and law-
abiding citizens. And we should not allow ourselves to be
stampeded into a rash action inconsistent with the calm that
should characterize judicial deliberations. (Avelino v. Cuenco,
G.R. No. L-2821 (Resolution), [March 4, 1949], 83 PHIL 17-84)
d. 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 the "[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. Therefore, such
method must be prescribed by the Senate itself, not by this
Court. The Rules of Senate do not provide for the positions of
majority and minority leaders. Neither is there an open clause
providing specifically for such offices and prescribing the
manner of creating them or of choosing the holders thereof. At
any rate, such offices, by tradition and long practice, are actually
extant. But, in the absence of constitutional or statutory
guidelines or specific rules, this Court is devoid of any basis
upon which to determine the legality of the acts of the Senate
relative thereto. On grounds of respect for the basic concept of
separation of powers, courts may not intervene in the internal
affairs of the legislature; it is not within the province of courts to
direct Congress how to do its work. (Defensor-Santiago v.
Guingona, Jr., G.R. No. 134577, [November 18, 1998], 359 PHIL
276-315)

79
5. Quorum

a. A majority of each House shall constitute a quorum to do

business. Quorum is based on the proportion between those
physically present and the total membership of the body.
b. The question of quorum cannot be raised repeatedly —
especially when the quorum is obviously present — for the
purpose of delaying the business of the House." (Arroyo v.
De Venecia, G.R. No. 127255, [June 26, 1998])

6. Internal Rules

a. It should be added that, even if petitioners' allegations are true, the

disregard of the rules in this case would not affect the validity of R.A.
No. 8240, the rules allegedly violated being merely internal rules of
procedure of the House rather than constitutional requirements for
the enactment of laws. It is well settled that a legislative act will not
be declared invalid for non-compliance with internal rules.|||
(Arroyo v. De Venecia, G.R. No. 127255, [June 26, 1998])
b. The order of suspension prescribed by Republic Act No. 3019 is
distinct from the power of Congress to discipline its own ranks
under the Constitution. The suspension contemplated in the above
constitutional provision is a punitive measure that is imposed upon
determination by the Senate or the House of Representatives, as the
case may be, upon an erring member. Republic Act No. 3019 does
not exclude from its coverage the members of Congress and that,
therefore, the Sandiganbayan did not err in thus decreeing the
assailed preventive suspension order. (Defensor-Santiago v.
Sandiganbayan, G.R. No. 128055, [April 18, 2001], 408 PHIL 767-
781)
c. Each House may, with the concurrence of 2/3 of all its members,
suspend or expel a member.
d. Disciplinary action taken by Congress against a member is not
subject to judicial review because each house is the sole judge of
what disorderly behavior is. (Osmena, Jr. vs. Pendatun)

7. Journals and Records

a. The Journal is conclusive upon the courts (US vs. Pons)

b. A duly authenticated bill or resolution imports absolute verity and
is binding on the courts. (Mabanag v. Vito, G.R. No. L-1123, [March
5, 1947], 78 PHIL 1-111)
c. Enrolled bill doctrine – one which has been duly introduced, finally
passed by both houses, signed by the Speaker and the Senate
President and the certification by the secretaries of both Houses
that such bill was passed are conclusive of its due enactment.
(Arroyo vs. De Venecia)

80
 d. Thus in Mabanag the enrolled bill theory was adopted. Whatever
doubt there might have been as to the status and force of the theory
in the Philippines, in view of the dissent of three Justices in
Mabanag, was finally laid to rest by the unanimous decision in Casco
Philippine Chemical Co. v. Gimenez. Speaking for the Court, the then
Justice (now Chief Justice) Concepcion said:

"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. (Primicias vs.
Paredes, 61 Phil., 118, 120; Mabanag vs. Lopez-Vito, 78 Phil., 1; Macias
vs. Comm. on Elections, L-18684, September 14, 1961). 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." (Morales v. Subido, G.R. No. L-29658 (Resolution),
[February 27, 1969])

e. The journal of the proceedings of each House of Congress is no

ordinary record. The Constitution requires it. While it is true that
the journal is not authenticated and is subject to the risks of
misprinting and other errors, the point is irrelevant in this case. This
Court is merely asked to inquire whether the text of House Bill No.
9266 signed by the Chief Executive was the same text passed by
both Houses of Congress. Under the specific facts and circumstances
of this case, this Court can do this and resort to the Senate journal
for the purpose. The journal discloses that substantial and lengthy
amendments were introduced on the floor and approved by the
Senate but were not incorporated in the printed text sent to the
President and signed by him. This Court is not asked to incorporate
such amendments into the alleged law, which admittedly is a risky
undertaking, but to declare that the bill was not duly enacted and
therefore did not become law. This We do, as indeed both the
President of the Senate and the Chief Executive did, when they
withdrew their signatures therein. In the face of the manifest error
committed and subsequently rectified by the President of the
Senate and by the Chief Executive, for this Court to perpetuate that
error by disregarding such rectification and holding that the
erroneous bill has become law would be to sacrifice truth to fiction
and bring about mischievous consequences not intended by the
law-making body.||| (Astorga v. Villegas, G.R. No. L-23475, [April 30,
1974], 155 PHIL 656-668)

IX. Electoral Tribunal

81
1. The Electoral Tribunal (1 for each House) is composed of 9 members: 3 SC
Justices and 6 from the respective Houses. The congressmen or senators as
members are chosen on the basis of proportional representation from political
parties and party-list.

2. It seems quite clear to us that in thus providing for a Tribunal to be staffed

by both Justices of the Supreme Court and Members of the Senate, the Constitution
intended that both those "judicial" and "legislative" components commonly share
the duty and authority of deciding all contests relating to the election, returns and
qualifications of Senators. The respondent Tribunal correctly stated one part of
this proposition when it held that said provision ". . . is a clear expression of an
intent that all (such) contests . . . shall be resolved by a panel or body in which
their (the Senators') peers in that Chamber are represented." The other part, of
course, is that the constitutional provision just as clearly mandates the
participation in the same process of decision of a representative or
representatives of the Supreme Court. Said intent is even more clearly signalled
by the fact that the proportion of Senators to Justices in the prescribed
membership of the Senate Electoral Tribunal is 2 to 1 — an unmistakable
indication that the "legislative component" cannot be totally excluded from
participation in the resolution of senatorial election contests, without doing
violence to the spirit and intent of the Constitution.

Where, as here, a situation is created which precludes the substitution of any

Senator sitting in the Tribunal by any of his other colleagues in the Senate without
inviting the same objections to the substitute's competence, the proposed mass
disqualification, if sanctioned and ordered, would leave the Tribunal no
alternative but to abandon a duty that no other court or body can perform, but
which it cannot lawfully discharge if shorn of the participation of its entire
membership of Senators. (Firdausi Smail Abbas v. Senate Electoral Tribunal,
G.R. No. 83767 (Resolution), [October 27, 1988], 248 PHIL 879-886)

3. Bondoc vs. Pineda (1991)

a. The independence of the House Electoral Tribunal so zealously guarded by

the framers of our Constitution, would, however, be a myth and its proceedings a
farce if the House of Representatives, or the majority party therein, may shuffle
and manipulate the political (as distinguished from the judicial) component of the
electoral tribunal, to serve the interests of the party in power.

The resolution of the House of Representatives removing Congressman

Camasura from the House Electoral Tribunal for disloyalty to the LDP, because he
cast his vote in favor of the Nacionalista Party's candidate, Bondoc, is a clear
impairment of the constitutional prerogative of the House Electoral Tribunal to be
the sole judge of the election contest between Pineda and Bondoc.

To sanction such interference by the House of Representatives in the work

of the House Electoral Tribunal would reduce the tribunal to a mere tool for the
aggrandizement of the party in power (LDP) which the three justices of the

82
Supreme Court and the lone NP member would be powerless to stop. A minority
party candidate may as well abandon all hope at the threshold of the tribunal.

b. As judges, the members of the House Electoral Tribunal must be non-

partisan. They must discharge their functions with complete detachment,
impartiality, and independence — even independence from the political party to
which they belong. Hence, "disloyalty to party" and "breach of party discipline,"
are not valid grounds for the expulsion of a member of the tribunal. In expelling
Congressman Camasura from the HRET for having cast a "conscience vote" in
favor of Bondoc, based strictly on the result of the examination and appreciation
of the ballots and the recount of the votes by the tribunal, the House of
Representatives committed a grave abuse of discretion, an injustice, and a
violation of the Constitution. Its resolution of expulsion against Congressman
Camasura is, therefore, null and void.

c. The resolution of the House of Representatives expelling Congressman

Camasura violates his right to security of tenure. Members of the HRET, as "sole
judge" of congressional election contests, are entitled to security of tenure just as
members of the judiciary enjoy security of tenure under our Constitution (Sec. 2,
Art. VIII, 1987 Constitution). Therefore, membership in the House Electoral
Tribunal may not be terminated except for a just cause, such as, the expiration of
the member's congressional term of office, his death, permanent disability,
resignation from the political party he represents in the tribunal, formal affiliation
with another political party, or removal for other valid cause. A member may not
be expelled by the House of Representatives for "party disloyalty" short of proof
that he has formally affiliated with another political group. As the records of this
case fail to show that Congressman Camasura has become a registered member of
another political party, his expulsion from the LDP and from the HRET was not for
a valid cause, hence, it violated his right to security of tenure.

4. Jurisdiction

a. Under Article VI, Section 17 of the Constitution, the HRET has sole and
exclusive jurisdiction over all contests relative to the election, returns, and
qualifications of members of the House of Representatives. Thus, once a winning
candidate has been proclaimed, taken his oath, and assumed office as a member
of the House of Representatives, COMELEC's jurisdiction over election contests
relating to his election, returns, and qualifications ends, and the HRET's own
jurisdiction begins. Thus, the COMELEC's decision to discontinue exercising
jurisdiction over the case is justifiable, in deference to the HRET's own jurisdiction
and functions. The reason for this ruling is self-evident, for it avoids duplicity of
proceedings and a clash of jurisdiction between constitutional bodies, with due
regard to the people's mandate. Whether respondent Fariñas validly substituted
Chevylle V. Fariñas and whether respondent became a legitimate candidate, in our
view, must likewise be addressed to the sound judgment of the Electoral Tribunal.
Only thus can we demonstrate fealty to the Constitutional provision that the
Electoral Tribunal of each House of Congress shall be the "sole judge of all contests
relating to the election, returns, and qualifications of their respective members."|||

83
(Guerrero v. Commission on Elections, G.R. No. 137004, [July 26, 2000], 391 PHIL
344-354)

b. From the foregoing, it is then clear that to be considered a Member of the

House of Representatives, there must be a concurrence of the following requisites:
(1) a valid proclamation, (2) a proper oath, and (3) assumption of office.

Indeed, in some cases, this Court has made the pronouncement that once a
proclamation has been made, COMELEC's jurisdiction is already lost and, thus, its
jurisdiction over contests relating to elections, returns, and qualifications ends,
and the HRET's own jurisdiction begins. However, it must be noted that in these
cases, the doctrinal pronouncement was made in the context of a proclaimed
candidate who had not only taken an oath of office, but who had also assumed
office. (Reyes v. Commission on Elections, G.R. No. 207264, [June 25, 2013])

c. The HRET has jurisdiction to pass upon the qualifications of party-list

nominees after their proclamation and assumption to office. (Bello vs. Comelec,
Dec. 7, 2010)

d. Judicial review of decisions or final resolutions of the House Electoral

Tribunal is (thus) possible only in the exercise of this Court's so-called
extraordinary jurisdiction, . . . upon a determination that the tribunal's decision or
resolution was rendered without or in excess of its jurisdiction, or with grave
abuse of discretion or, paraphrasing Morrera, upon a clear showing of such
arbitrary and improvident use by the Tribunal of its power as constitutes a denial
of due process of law, or upon a demonstration of a very clear unmitigated ERROR,
manifestly constituting such a GRAVE ABUSE OF DISCRETION that there has to be
a remedy for such abuse||| (Robles v. House of Representatives Electoral
Tribunal, G.R. No. 86647, [February 5, 1990], 260 PHIL 831-839)

X. Commission on Appointments

1. It is composed of 25 members: Senate President as ex-officio

Chairman, 12 Senators and 12 Congressmen, who are elected by each house on the
basis of proportional representation from political parties and party-list.

2. We resolve that issue in favor of the authority of the House of

Representatives to change its representation in the Commission on Appointments
to reflect at any time the changes that may transpire in the political alignments of
its membership. It is understood that such changes must be permanent and do not
include the temporary alliances or factional divisions not involving severance of
political loyalties or formal disaffiliation and permanent shifts of allegiance from
one political party to another. (Daza v. Singson, G.R. No. 86344, [December 21,
1989], 259 PHIL 980-992)

3. Fractional seats cannot be rounded off. A full complement of 12

members from the Senate is not mandatory. We do not agree with respondents'
claim that it is mandatory to elect 12 Senators to the Commission on
Appointments. The Constitution does not contemplate that the Commission on

84
Appointments must necessarily include twelve (12) senators and twelve (12)
members of the House of Representatives. What the Constitution requires is that
there be at least a majority of the entire membership. Under Section 18, the
Commission shall rule by majority vote of all the members and in Section 19, the
Commission shall meet only while Congress is in session, at the call of its Chairman
or a majority of all its members "to discharge such powers and functions herein
conferred upon it". (Guingona, Jr. v. Gonzales, G.R. No. 106971, [October 20, 1992])

XI. Legislative Inquiries and Oversight Functions

1. Sections 21 and 22 Distinguished

Section 21 – Legislative Section 22 – Oversight
Investigation Function
Who may appear Any person Department heads
Who may be summoned Anyone, except the No one. Each house may
President and SC Justices only request the
(Senate vs. Ermita) appearance of
department heads.
Subject Matter Any matter for purposes Matters related to the
of legislation department only
Obligatory force of Mandatory Discretionary
appearance

Senate vs. Ermita

Sections 21 and 22, therefore, while closely related and complementary to

each other, should not be considered as pertaining to the same power of Congress.
One specifically relates to the power to conduct inquiries in aid of legislation, the
aim of which is to elicit information that may be used for legislation, while the
other pertains to the power to conduct a question hour, the objective of which is
to obtain information in pursuit of Congress' oversight function.

When Congress merely seeks to be informed on how department heads are

implementing the statutes which it has issued, its right to such information is not
as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty. In
such instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in
which Congress requires their appearance is "in aid of legislation" under Section
21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory

process only to the extent that it is performed in pursuit of legislation. This is
consistent with the intent discerned from the deliberations of the Constitutional
Commission.

Ultimately, the power of Congress to compel the appearance of executive

officials under Section 21 and the lack of it under Section 22 find their basis in the

85
principle of separation of powers. While the executive branch is a co-equal branch
of the legislature, it cannot frustrate the power of Congress to legislate by refusing
to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact that they are department
heads. Only one executive official may be exempted from this power — the
President on whom executive power is vested, hence, beyond the reach of
Congress except through the power of impeachment. It is based on her being the
highest official of the executive branch, and the due respect accorded to a co-equal
branch of government which is sanctioned by a long-standing custom.

By the same token, members of the Supreme Court are also exempt from
this power of inquiry. Unlike the Presidency, judicial power is vested in a collegial
body; hence, each member thereof is exempt on the basis not only of separation
of powers but also on the fiscal autonomy and the constitutional independence of
the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker
Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice. (Senate of the Phils. v. Ermita, G.R. No. 169777 *, 169659, 169660, 169667,
169834, 171246, [April 20, 2006])

2. Power of Inquiry

a. The power of inquiry, with process to enforce it, is an essential and

appropriate auxiliary to the legislative function.||| (Arnault v.
Nazareno, G.R. No. L-3820, [July 18, 1950], 87 PHIL 29-77)
b. It does not have to be expressly granted as it is implied from the
express power of legislation.
c. Limitations:

The power of both houses of Congress to conduct inquiries in aid of

legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by
the afore-quoted provision of the Constitution. Thus, as provided therein, the
investigation must be "in aid of legislation in accordance with its duly published
rules of procedure" and that "the rights of persons appearing in or affected by
such inquiries shall be respected." It follows then that the rights of persons under
the Bill of Rights must be respected, including the right to due process and the
right not to be compelled to testify against one's self. The inquiry, to be within the
jurisdiction of the legislative body making it, must be material or necessary to the
exercise of a power in it vested by the Constitution, such as to legislate or to expel
a member. Under Sec. 4 of the aforementioned Rules, the Senate may refer to any
committee or committees any speech or resolution filed by any Senator which in
its judgment requires an appropriate inquiry in aid of legislation. In order
therefore to ascertain the character or nature of an inquiry, resort must be had to
the speech or resolution under which such an inquiry is proposed to be made.

Verily, the speech of Senator Enrile contained no suggestion of contemplated

legislation; he merely called upon the Senate to look into a possible violation of

86
Sec. 5 of RA No. 3019, otherwise known as "The Anti-Graft and Corrupt Practices
Act." In other words, the purpose of the inquiry to be conducted by respondent
Blue Ribbon Committee was to find out whether or not the relatives of President
Aquino, particularly Mr. Ricardo Lopa, had violated the law in connection with the
alleged sale of the 36 or 39 corporations belonging to Benjamin "Kokoy"
Romualdez to the Lopa Group. There appears to be, therefore, no intended
legislation involved. (Bengzon Jr. v. Senate Blue Ribbon Committee, G.R. No.
89914, [November 20, 1991])

d. Garcillano vs. House Committee (2008)

Respondents justify their non-observance of the constitutionally mandated

publication by arguing that the rules have never been amended since 1995 and,
despite that, they are published in booklet form available to anyone for free, and
accessible to the public at the Senate's internet web page.

The Court does not agree. The absence of any amendment to the rules
cannot justify the Senate's defiance of the clear and unambiguous language of
Section 21, Article VI of the Constitution. The organic law instructs, without more,
that the Senate or its committees may conduct inquiries in aid of legislation only
in accordance with duly published rules of procedure, and does not make any
distinction whether or not these rules have undergone amendments or revision. The
constitutional mandate to publish the said rules prevails over any custom, practice
or tradition followed by the Senate.

Justice Carpio's response to the same argument raised by the respondents

is illuminating:
The publication of the Rules of Procedure in the website of the
Senate, or in pamphlet form available at the Senate, is not
sufficient under the Tañada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of
general circulation. The Rules of Procedure even provide that
the rules "shall take effect seven (7) days after publication in
two (2) newspapers of general circulation", precluding any
other form of publication. Publication in accordance with
Tañada is mandatory to comply with the due process
requirement because the Rules of Procedure put a person's
liberty at risk. A person who violates the Rules of Procedure
could be arrested and detained by the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792,

otherwise known as the Electronic Commerce Act of 2000, to support their claim
of valid publication through the internet is all the more incorrect. R.A. 8792
considers an electronic data message or an electronic document as the functional
equivalent of a written document only for evidentiary purposes. In other words,
the law merely recognizes the admissibility in evidence (for their being the
original) of electronic data messages and/or electronic documents. It does not
make the internet a medium for publishing laws, rules and regulations.

87
Given this discussion, the respondent Senate Committees, therefore, could not, in
violation of the Constitution, use its unpublished rules in the legislative inquiry
subject of these consolidated cases. The conduct of inquiries in aid of legislation
by the Senate has to be deferred until it shall have caused the publication of the
rules, because it can do so only "in accordance with its duly published rules of
procedure". (Garcillano v. House of Representatives Committees on Public
Information, G.R. No. 170338, 179275, [December 23, 2008], 595 PHIL 775-844)

e. The power of investigation necessarily includes the power to punish

a contumacious witness for contempt. (Arnault vs. Nazareno). The
exercise of the contempt power is a matter of preservation and
independent of the judicial branch. (Sabio vs. Gordon)

f. In evaluating a claim for violation of the right to privacy, a court

must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion. Applying this
determination to these cases, the important inquiries are: first, did
the directors and officers of Philcomsat Holdings Corporation exhibit
a reasonable expectation of privacy?; and second, did the
government violate such expectation?

The answers are in the negative. Petitioners were invited in the

Senate's public hearing to deliberate on Senate Res. No. 455,
particularly "on the anomalous losses incurred by the Philippine
Overseas Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and
Philcomsat Holdings Corporations (PHC) due to the alleged
improprieties in the operations by their respective board of
directors." Obviously, the inquiry focus on petitioners' acts
committed in the discharge of their duties as officers and directors
of the said corporations, particularly Philcomsat Holdings
Corporation. Consequently, they have no reasonable
expectation of privacy over matters involving their offices in a
corporation where the government has interest. Certainly,
such matters are of public concern and over which the people
have the right to information.

This goes to show that the right to privacy is not absolute

where there is an overriding compelling state interest. (Miguel v.
Gordon, G.R. No. 174340, 174318, 174177, [October 17, 2006])

g. Furthermore, it is axiomatic that the power of legislative

investigation includes the power to compel the attendance of
witnesses. Corollary to the power to compel the attendance of
witnesses is the power to ensure that said witnesses would be
available to testify in the legislative investigation. In the case at
bench, considering that most of the officers of SCB-Philippines are
not Filipino nationals who may easily evade the compulsive

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 character of respondent's summons by leaving the country, it was
reasonable for the respondent to request the assistance of the
Bureau of Immigration and Deportation to prevent said witnesses
from evading the inquiry and defeating its purpose. In any event, no
HDO was issued by a court. The BID instead included them only in
the Watch List, which had the effect of merely delaying petitioners'
intended travel abroad for five (5) days, provided no HDO is issued
against them.

Also, the mere filing of a criminal or an administrative complaint

before a court or a quasi-judicial body should not automatically bar
the conduct of legislative inquiry, otherwise, it would be extremely
easy to subvert any intended inquiry by Congress though the
convenient ploy of instituting a criminal or an administrative
complaint. (Standard Chartered Bank v. Senate Committee on
Banks, Financial Institutions and Currencies, G.R. No. 167173,
[December 27, 2007], 565 PHIL 744-765)

h. Neri vs. Senate (2008)

i. We now proceed to the issue — whether the claim is

properly invoked by the President. Jurisprudence teaches that for
the claim to be properly invoked, there must be a formal claim of
privilege, lodged by the head of the department which has control
over the matter." A formal and proper claim of executive privilege
requires a "precise and certain reason" for preserving their
confidentiality. The Letter dated November 17, 2007 of Executive
Secretary Ermita satisfies the requirement. It serves as the formal
claim of privilege. There he expressly states that "this Office is
constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised
Secretary Neri accordingly." Obviously, he is referring to the Office
of the President. That is more than enough compliance. In Senate v.
Ermita, a less categorical letter was even adjudged to be sufficient.
With regard to the existence of "precise and certain reason", we find
the grounds relied upon by Executive Secretary Ermita specific
enough so as not "to leave respondent Committees in the dark on
how the requested information could be classified as privileged."
The case of Senate v. Ermita only requires that an allegation be made
"whether the information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc." The particular ground
must only be specified. The enumeration is not even intended to be
comprehensive.

ii. Respondent Committees did not comply with the

requirement laid down in Senate vs. Ermita that the invitations
should contain the "possible needed statute which prompted the
need for the inquiry", along with "the usual indication of the subject
of inquiry and the questions relative to and in furtherance thereof."

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 Compliance with this requirement is imperative, both under
Sections 21 and 22 of Article VI of the Constitution. This must be so
to ensure that the rights of both persons appearing in or affected
by such inquiry are respected as mandated by said Section 21 and
by virtue of the express language of Section 22. Unfortunately,
despite petitioner's repeated demands, respondent Committees did
not send him advance list of questions.

iii. A reading of the transcript of respondent Committees'

January 30, 2008 proceeding reveals that only a minority of the
members of the Senate Blue Ribbon Committee were present during
the deliberation.

iv. Respondent Committees likewise violated Section 21 of

Article VI of the Constitution, requiring that the inquiry be in
accordance with the "duly published rules of procedure.

XII. Bills/Legislative Process

1. Origination clause

a. All appropriation, revenue, or tariff bills, bills authorizing increase

of the public debt, bill of local application and private bills shall
originate exclusively from the House of Representatives but the
Senate may propose or concur with amendments.
b. To begin with, it is not the law — but the revenue bill — which is
required by the Constitution to "originate exclusively" in the House
of Representatives. It is important to emphasize this, because a bill
originating in the House may undergo such extensive changes in the
Senate that the result may be a rewriting of the whole. The
possibility of a third version by the conference committee will be
discussed later. At this point, what is important to note is that, as a
result of the Senate action, a distinct bill may be produced. To insist
that a revenue statute — and not only the bill which initiated the
legislative process culminating in the enactment of the law — must
substantially be the same as the House bill would be to deny the
Senate's power not only to "concur with amendments" but also to "
propose amendments." It would be to violate the coequality of
legislative power of the two houses of Congress and in fact make the
House superior to the Senate.

While Art. VI, § 24 provides that all appropriation, revenue or tariff

bills, bills authorizing increase of the public debt, bills of local
application, and private bills must "originate exclusively in the
House of Representatives," it also adds, "but the Senate may
propose or concur with amendments." In the exercise of this power,
the Senate may propose an entirely new bill as a substitute measure.
(Tolentino v. Secretary of Finance, G.R. No. 115455, 115525,

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 115543, 115544, 115754, 115781, 115852, 115873, 115931, [August
25, 1994])

2. One bill-one subject rule

a. Every bill passed by Congress shall embrace only one

subject, which must be expressed in the title of the bill. This
is mandatory.
b. It is not necessary that the title be a complete index of the
content (Philconsa vs. Gimenez, 1965)
c. The rule should be given a practical rather than a strict
construction. It should be sufficient compliance with such
requirement if the title expresses the general subject and all
the provisions of the statute are germane to that general
subject. (Sumulong vs. Comelec, 1941)

3. Three readings

a. Presidential Certification dispenses with three-reading rule

and other requirements of the passage of the bill.

In other words, the "unless" clause must be read in relation to the "except"
clause, because the two are really coordinate clauses of the same sentence. To
construe the "except" clause as simply dispensing with the second requirement in
the "unless" clause (i.e., printing and distribution three days before final approval)
would not only violate the rules of grammar. It would also negate the very premise
of the "except" clause: the necessity of securing the immediate enactment of a bill
which is certified in order to meet a public calamity or emergency. For if it is only
the printing that is dispensed with by presidential certification, the time saved
would be so negligible as to be of any use in insuring immediate enactment. It may
well be doubted whether doing away with the necessity of printing and
distributing copies of the bill three days before the third reading would insure
speedy enactment of a law in the face of an emergency requiring the calling of a
special election for President and Vice-President. Under the Constitution such a
law is required to be made within seven days of the convening of Congress in
emergency session||| (Tolentino v. Secretary of Finance, G.R. No. 115455, 115525,
115543, 115544, 115754, 115781, 115852, 115873, 115931, [August 25, 1994])

4. Passage of bills

a. Conference Committees

Nor is there anything unusual or extraordinary about the fact that the Conference
Committee met in executive sessions. Often the only way to reach agreement on
conflicting provisions is to meet behind closed doors, with only the conferees
present. Otherwise, no compromise is likely to be made. The Court is not about to
take the suggestion of a cabal or sinister motive attributed to the conferees on the
basis solely of their "secret meetings" on April 21 and 25, 1994, nor read anything
into the incomplete remarks of the members, marked in the transcript of

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stenographic notes by ellipses. The incomplete sentences are probably due to the
stenographer's own limitations or to the incoherence that sometimes characterize
conversations.||| (Tolentino v. Secretary of Finance, G.R. No. 115455, 115525,
115543, 115544, 115754, 115781, 115852, 115873, 115931, [August 25, 1994])

5. Item Veto
a. Paragraph (1) refers to the general veto power of the
President and if exercised would result in the veto of the
entire bill, as a general rule. Paragraph (2) is what is referred
to as the item-veto power or the line-veto power. It allows
the exercise of the veto over a particular item or items in an
appropriation, revenue, or tariff bill. As specified, the
President may not veto less than all of an item of an
Appropriations Bill. In other words, the power given the
executive to disapprove any item or items in an
Appropriations Bill does not grant the authority to veto a
part of an item and to approve the remaining portion of the
same item. (Gonzales v. Macaraig, Jr., G.R. No. 87636,
[November 19, 1990])
b. Doctrine of inappropriate provisions – A provision that is
constitutionally inappropriate for an appropriation bill may
be singled out for veto even if it is not an appropriation or
revenue “item”. (Gonzales vs. Macaraig)
c. As the Constitution is explicit that the provision which
Congress can include in an appropriations bill must "relate
specifically to some particular appropriation therein" and
"be limited in its operation to the appropriation to which it
relates," it follows that any provision which does not relate
to any particular item, or which extends in its operation
beyond an item of appropriation, is considered "an
inappropriate provision" which can be vetoed separately
from an item. Also to be included in the category of
"inappropriate provisions" are unconstitutional provisions
and provisions which are intended to amend other laws,
because clearly these kind of laws have no place in an
appropriations bill.||| (Philippine Constitution Ass'n. v.
Enriquez, G.R. No. 113105, 113174, 113766, 113888, [August
19, 1994])

6. Executive impoundment

a. Impoundment simply means refusal of the President to

spend funds already allocated by Congress for a specific
purpose.
b. We do not find anything in the language used in the
challenged Special Provision that would imply that Congress
intended to deny to the President the right to defer or reduce
the spending, much less to deactivate 11,000 CAFGU
members all at one in 1994. But even if such is the intention,

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 the appropriation law is not the proper vehicle for such
purpose. Such intention must be embodied and manifested
in another law considering that it abrades the powers of the
Commander-in-Chief and there are existing laws on the
creation of the CAFGU's to be amended. Again we state: a
provision in an appropriations act cannot be used to repeal
or amend other laws, in this case, P.D. No. 1597 and R.A. No.
6758.||| (Philippine Constitution Ass'n. v. Enriquez, G.R. No.
113105, 113174, 113766, 113888, [August 19, 1994])

7. Legislative Veto

a. 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 Constitution's diagram of power
as it entrusts to Congress a direct role in enforcing, applying or
implementing its own laws. (Abakada Guro Party List v. Purisima, G.R.
No. 166715, [August 14, 2008], 584 PHIL 246-331)
b. Congress, in the guise of assuming the role of an overseer, may not pass
upon their legality by subjecting them to its stamp of approval without
disturbing the calculated balance of powers established by the
Constitution. In exercising discretion to approve or disapprove the IRR
based on a determination of whether or not they conformed with the
provisions of RA 9335, Congress arrogated judicial power unto itself, a
power exclusively vested in this Court by the Constitution. (Abakada
Guro Party List v. Purisima, G.R. No. 166715, [August 14, 2008], 584
PHIL 246-331)

XIII. Appropriation Measures/Powers of the Purse

1. Constitutional Limitations on power of appropriation

a. Appropriation must be devoted to a public purpose

b. Congress may not increase the appropriation recommended by the
President
c. Every provision must be related to an appropriation item (rider)
d. No transfer of apppropriations from one department to another.
Transfer is allowed only within the same branch. (Araullo vs.
Aquino)

2. Doctrines in Araullo vs. Aquino (2014)

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a. Budget is the delineation of the services and products, or benefits
that would accrue to the public together with the estimated unit
cost of each type of service, product or benefit. For a forthright
definition, budget should simply be identified as the financial plan
of the Government, or "the master plan of government."
b. The budget preparation phase is commenced through the issuance
of a Budget Call by the DBM. The Budget Call contains budget
parameters earlier set by the Development Budget Coordination
Committee (DBCC) as well as policy guidelines and procedures to
aid government agencies in the preparation and submission of their
budget proposals. The Budget Call is of two kinds, namely: (1) a
National Budget Call, which is addressed to all agencies, including
state universities and colleges; and (2) a Corporate Budget Call,
which is addressed to all government-owned and -controlled
corporations (GOCCs) and government financial institutions (GFIs).
c. The DBM next consolidates the recommended agency budgets into
the National Expenditure Program (NEP)and a Budget of
Expenditures and Sources of Financing (BESF). The NEP provides
the details of spending for each department and agency by program,
activity or project (PAP), and is submitted in the form of a proposed
GAA. The Details of Selected Programs and Projects is the more
detailed disaggregation of key PAPs in the NEP, especially those in
line with the National Government’s development plan. The Staffing
Summary provides the staffing complement of each department and
agency, including the number of positions and amounts allocated.
d. The Budget Legislation Phase covers the period commencing from
the time Congress receives the President’s Budget, which is
inclusive of the NEPand the BESF, up to the President’s approval of
the GAA. This phase is also known as the Budget Authorization
Phase, and involves the significant participation of the Legislative
through its deliberations.Initially, the President’s Budget is
assigned to the House of Representatives’ Appropriations
Committee on First Reading. The Appropriations Committee and its
various Sub-Committees schedule and conduct budget hearings to
examine the PAPs of the departments and agencies. Thereafter, the
House of Representatives drafts the General Appropriations Bill
(GAB).

The GAB is sponsored, presented and defended by the House of

Representatives’ Appropriations Committee and Sub-Committees
in plenary session. As with other laws, the GAB is approved on Third
Reading before the House of Representatives’ version is transmitted
to the Senate.

After transmission, the Senate conducts its own committee hearings

on the GAB. To expedite proceedings, the Senate may conduct its
committee hearings simultaneously with the House of
Representatives’ deliberations. The Senate’s Finance Committee
and its Sub-Committees may submit the proposed amendments to

94
 the GAB to the plenary of the Senate only after the House of
Representatives has formally transmitted its version to the Senate.
The Senate version of the GAB is likewise approved on Third
Reading.
e. The House of Representatives and the Senate then constitute a
panel each to sit in the Bicameral Conference Committee for the
purpose of discussing and harmonizing the conflicting provisions of
their versions of the GAB. The "harmonized" version of the GAB is
next presented to the President for approval. The President reviews
the GAB, and prepares the Veto Message where budget items are
subjected to direct veto, or are identified for conditional
implementation.

If, by the end of any fiscal year, the Congress shall have failed to pass
the GAB for the ensuing fiscal year, the GAA for the preceding fiscal
year shall be deemed re-enacted and shall remain in force and effect
until the GAB is passed by the Congress
f. The transfer of appropriated funds, to be valid under Section 25(5),
supra, must be made upon a concurrence of the following requisites,
namely:
(1) There is a law authorizing the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the
appropriations for their respective offices; and (3) The purpose of
the transfer is to augment an item in the general appropriations law
for their respective offices.
g. Section 25(5), supra, not being a self-executing provision of the
Constitution, must have an implementing law for it to be operative.
That law, generally, is the GAA of a given fiscal year. To comply with
the first requisite, the GAAs should expressly authorize the transfer
of funds.
h. A reading shows, however, that the aforequoted provisions of
the GAAs of 2011 and 2012 were textually unfaithful to the
Constitution for not carrying the phrase "for their respective
offices" contained in Section 25(5), supra. The impact of the
phrase "for their respective offices" was to authorize only
transfers of funds within their offices (i.e., in the case of the
President, the transfer was to an item of appropriation within
the Executive). The provisions carried a different phrase ("to
augment any item in this Act"), and the effect was that the 2011
and 2012 GAAs thereby literally allowed the transfer of funds
from savings to augment any item in the GAAs even if the item
belonged to an office outside the Executive. To that extent did
the 2011 and 2012 GAAs contravene the Constitution. At the very
least, the aforequoted provisions cannot be used to claim authority
to transfer appropriations from the Executive to another branch, or
to a constitutional commission.

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i. The withdrawal and transfer of unobligated allotments and the
pooling of unreleased appropriations were invalid for being
bereft of legal support. Nonetheless, such withdrawal of
unobligated allotments and the retention of appropriated funds
cannot be considered as impoundment.
j. By providing that the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the Heads of the Constitutional Commissions
may be authorized to augment any item in the GAA "for their
respective offices," Section 25(5), supra, has delineated borders
between their offices, such that funds appropriated for one
office are prohibited from crossing over to another office even
in the guise of augmentation of a deficient item or items. Thus,
we call such transfers of funds cross-border transfers or cross-
border augmentations.

2. Doctrine in Belgica vs. Ochoa (PDAF cases)

a. Clearly, these post-enactment measures which govern the areas

of project identification, fund release and fund realignment
are not related to functions of congressional oversight and,
hence, allow legislators to intervene and/or assume duties
that properly belong to the sphere of budget execution.
Indeed, by virtue of the foregoing, legislators have been, in
one form or another, authorized to participate in – as
Guingona, Jr. puts it – "the various operational aspects of
budgeting," including "the evaluation of work and financial
plans for individual activities" and the "regulation and
release of funds" in violation of the separation of powers
principle. The fundamental rule, as categorically articulated in
Abakada, cannot be overstated – from the moment the law
becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of
powers and is thus unconstitutional. That the said authority is
treated as merely recommendatory in nature does not alter its
unconstitutional tenor since the prohibition, to repeat, covers
any role in the implementation or enforcement of the law.
Towards this end, the Court must therefore abandon its ruling
in Philconsa which sanctioned the conduct of legislator
identification on the guise that the same is merely
recommendatory and, as such, respondents‘ reliance on the
same falters altogether.
b. In the cases at bar, the Court observes that the 2013 PDAF Article,
insofar as it confers post-enactment identification
authority to individual legislators, violates the principle of
non-delegability since said legislators are effectively
allowed to individually exercise the power of
appropriation, which – as settled in Philconsa – is lodged in

96
 Congress. That the power to appropriate must be exercised only
through legislation is clear from Section 29(1), Article VI of the
1987 Constitution which states that: "No money shall be paid
out of the Treasury except in pursuance of an appropriation
made by law." To understand what constitutes an act of
appropriation, the Court, in Bengzon v. Secretary of Justice and
Insular Auditor (Bengzon), held that the power of appropriation
involves (a) the setting apart by law of a certain sum from the
public revenue for (b) a specified purpose. Essentially, under the
2013 PDAF Article, individual legislators are given a personal
lump-sum fund from which they are able to dictate (a) how
much from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. As these two
(2) acts comprise the exercise of the power of appropriation as
described in Bengzon, and given that the 2013 PDAF Article
authorizes individual legislators to perform the same,
undoubtedly, said legislators have been conferred the power to
legislate which the Constitution does not, however, allow. Thus,
keeping with the principle of non-delegability of legislative
power, the Court hereby declares the 2013 PDAF Article, as well
as all other forms of Congressional Pork Barrel which contain
the similar legislative identification feature as herein discussed,
as unconstitutional.

XIV. Power of Taxation

Q: What is taxation?

A: Taxation is financial burden imposed by the State on persons, whether

natural or juridical, within is jurisdiction for property owned, income earned,
business or profession engaged in, or any such activity analogous in character for
raising the necessary expenses to take case of the responsibilities of government.
(Republic vs. Phil. Rabbit Bus Line, Inc., 32 SCRA 211 [1970]).

In Commissioner of Internal Revenue vs. Pineda (21 SCRA 105), taxes are called
“lifeblood of government and their prompt and certain availability is an
imperious need.”

According to Cooley, taxes are the enforced proportional contributions from

persons and property, levied by the State by virtue of its sovereignty for the
support of government and for all public needs.

Q: What is the basis of the power to tax?

A: The justification of the demand to pay taxes is found in the reciprocal duties
of protection and support between the State and those that are subject to its
authority and the exclusive sovereignty and jurisdiction of the State over all
persons and property within its limits for governmental purposes. The person
upon whom the demand is made, or whose property is taken, owes the State a duty

97
to do what shall be his just proportion toward the support of government and the
State is supposed to make adequate and full compensation in the protection which
it gives to his life, liberty and property in the increase in the value of his possession
by the use of which the money contributed is applied (Cooley on Taxation.).

Q - Who may exercise the power to tax?

A - The power to tax is fundamentally a prerogative vested in the plenary and

comprehensive power of the legislature to enact and ordain laws. However, such
power may be delegated to local government units by legislative fiat under such
terms and conditions as are stipulated in the law.

Q - Are local government units possessed with the inherent power to tax?

A - No. Local government units like provinces, cities, municipalities are creations
of the legislature. As such, they can only exercise such powers as are expressly
conveyed to them by law or those which are necessarily inferable from their
existence.The Congress of the Philippines has explicitly granted local government
units the power to tax under the Local Government Code of 1991.

Q - What are the limitations of the power to tax, if any there be?

A - The limitations on the power to tax are:

1) Inherent Limitations:

a) It must be exercised by the legislature;

b) It must be for a public purpose;
c) It must be applied only within the territorial jurisdiction of the taxing State;
and
d) International Law on Comity.

2) Constitutional Limitations:

a) Due process and equal protection clauses of the Constitution (Section 1,

Article Ill);
b) Non-imprisonment of persons for failure to pay poll tax (Section 20, Article
Ill);
c) The rule on taxation shall be uniform and equitable (Section 28(1), Article V/);
d) Tariff bills must originate exclusively from the House of Representatives
(Section 24, Article V/);
e) It must respect the persons and properties enumerated in the Constitution as
exempted from taxation (Section 28(3), Article V/);
f) Legislative exemption from taxation must be with the concurrence of the
majority of the Members of Congress (Section 28(4), Article V/); and g) Non-
impairment of contracts (Section 10, Article Ill).

Q: One of the limitations on the power to tax is that it must be levied for a
public purpose. What is meant by public purpose?

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A: Public purpose as used in taxation has specific reference to objects for
which the government is to provide. Also, a place in which the public has an
interest as affecting the safety, health and morals and welfare of the community.
(Black's Law Dictionary, 1979 Ed.)

Public purpose cannot be quantified with exactitude. It is a term which is not static
but one which occasionally changes to meet new social conditions and ever-
growing developments.

As ruled in Tio vs. Videogram Regulatory Board (supra), the Court in validating the
tax imposed on the sale or lease of videotapes said that the tax is for a public
purpose that is primarily designed to answer for the need to regulate the video
industry, particularly, because of the rampant film piracy, the flagrant violation of
intellectual property rights and the proliferation of pornographic video tapes.

Quoting a US case, the Court said that the "public purpose of a tax may legally exist
even if the motive which impelled the legislature to impose the tax was to favor
one industry over another."

In Tio case, the mingling concept of the three (3) inherent powers of the State was
exemplified. Here taxation has been made the implement of the State's police
power.

Q: Explain the territorial concept of taxation?

A: Since taxation is a prerogative exercisable by the legislature, tax laws, like

any other law, must operate only within the territorial limits of the enacting
authority. It cannot extend beyond its boundaries except under certain
circumstances. (Manila Gas vs. Collector, 62 Phil. 895, January 17,1936)

Q - Explain the concept of uniformity in taxation.

A - In Philippine Trust Co. vs. Yatco (69 Phil. 420, January 23, 1940) the Court stated
that "a tax is considered uniform when it operates with the same force and effect
in every place where the subject may be found.

In Eastern Theatrical Co. vs. Alfonso (83 Phil. 852, May 31, 1949), the Court defined
"equality and uniformity" in taxation to mean "that all taxable articles or kinds of
property of the same class shall be taxed at the same rate. The taxing power has
the authority to make reasonable and natural classification for purposes of
taxation."

In Lutz vs. Araneta (supra), the Court quoting a leading American case (Carmichael
vs. Southern Coal & Coke Co., 301 US 495) said that "inequalities which result from
a singling out of one particular class for taxation or exemption infringe no
constitutional limitation."

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Q - What is double taxation?
A - Double taxation means that one person or anyone subject of taxation shall
directly contribute twice to the same burden while other subjects of taxation
belonging to the same class are required to contribute but once. (Cooley on
Taxation, at 387 to 388)

In Compania General de Tabacos de Filipinas vs. City of Manila (8 SCRA 367, June
29, 1963 - Annotations) "double taxation" has been described as' direct duplicate
taxation.” It exists when the same property is taxed twice. It should be taxed but
once. It has also been defined as "taxing the same person twice by the same
jurisdiction for the same thing." (Victorias Milling, Co., Inc. vs. Municipality of
Victorias, Negros Occidental, 25 SCRA 192, September 27, 1968)

Q - What are the requisites of double taxation?

A - The requisites of double taxation are: 1)The taxpayer is taxed twice in the
same taxable period for the same subject matter; and 2) The tax imposed by the
same government or jurisdiction.

Q - Section 28(3) Article VI of the 1987 Constitution provides:

Charitable institutions, churches and parsonages or convents appurtenant

thereto, mosques, non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly and exclusively used for religious, charitable, or
educational purposes shall be exempt from taxation. "

What is the extent of the word "exclusively" as employed in the Constitution?

A - In Abra Valley College, Inc. vs. Aquino (162 SCRA 106, June 15, 1988), the
Supreme Court defined the scope of the phrase "exclusively used for educational
purposes" citing the cases of Herrera vs. Quezon City Board of Assessment Appeals
(3 SCRA 186, September ~, 1961) and Commissioner of Internal Revenue vs. Bishop
of the Missionary District of the Philippine Islands, etc. (14 SCRA 991, August 31,
1965), stating:

"Moreover, the exemption in favor of property used exclusively for charitable or

educational purposes is 'not limited to property actually indispensable' therefor
(Cooley on Taxation, Vol. 2, at 1430), but extends to facilities which are incidental
to and reasonably necessary for the accomplishment of said purposes, such as in
the case of hospitals, a school for training nurses, a nurses' home property used to
provide housing facilities for interns and residents- (84 CJS 6621), such as athletic
fields, including a farm used for the inmates of the institution. "

In sum, the incidental use of the property for some other purposes is embraced in
the term.

Q - The YMCA maintains lodging and boarding houses and, restaurant for its
members. Is such an undertaking subject to tax?

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A - No, because the maintenance of these activities does not constitute business in
its ordinary sense but rendexred as part of the total charitable work of the YMCA
and is thus exempted from taxation. (YMCA of Manila vs. Collector OJ Internal
Revenue, 33 Phil. 217, January 19, 1916)

Note 7
CONSTITUTIONAL LAW REVIEW

Prof. Rolando B. Faller

NATIONAL ECONOMY AND PATRIMONY

And GENERAL PROVISIONS

Section 1. The goals of the national economy are a more equitable

distribution of opportunities, income, and wealth; a sustained
increase in the amount of goods and services produced by the nation
for the benefit of the people; and an expanding productivity as the
key to raising the quality of life for all, especially the
underprivileged.

The State shall promote industrialization and full employment based

on sound agricultural development and agrarian reform, through
industries that make full and efficient use of human and natural
resources, and which are competitive in both domestic and foreign
markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to
develop. Private enterprises, including corporations, cooperatives,
and similar collective organizations, shall be encouraged to broaden
the base of their ownership.

I. GOALS

101
(1) More equitable distribution of opportunities, income and wealth
(2) Sustained increase in amount of goods and services produced by the nation for
the benefit of the people
(3) Expanding production as the key to raising the quality of life for all, especially
the underprivileged.

II. REGALIAN DOCTRINE

Section 2. All lands of the public domain, waters, minerals, coal,

petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated.
The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State
may directly undertake such activities, or it may enter into co-
production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements
may be for a period not exceeding twenty-five years, renewable for
not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for
irrigation, water supply fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and
limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural

resources by Filipino citizens, as well as cooperative fish farming,
with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned

corporations involving either technical or financial assistance for
large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to the
economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of
local scientific and technical resources.

The President shall notify the Congress of every contract entered

into in accordance with this provision, within thirty days from its
execution.

a. Lands of public domain are classified into (a) agricultural; (b) forest
or timber, (c) mineral lands, and (d) national parks.

102
 b. Only agricultural lands are alienable, which can be further
reclassified as residential, commercial or industrial. Private
corporations can only lease agricultural lands for 25 years, renewable
for another 25 years, and not exceeding 1,000 hectares. Citizens may
lease not more than 500 hectares or acquire not more than 12 hectares
by purchase, homestead or grant.

c. An exception to regalia doctrine is native title which refers to a pre-

conquest rights to lands and domains which, as far back as memory
reaches, have been held under a claim of private ownership by
indigenous cultural communities or indigenous people, have never been
public lands and are thus indisputably presumed to have been held that
way before Spanish conquest. (Carino vs. Insular Government, 41 Phil.
935 [1909])

d. All lands not otherwise appearing to be clearly within private

ownership are presumed to belong to the State. Thus, all lands that have
not been acquired from the government, either by purchase or by grant,
belong to the State as part of the inalienable public domain. Necessarily,
it is up to the State to determine if lands of the public domain will be
disposed of for private ownership. The government, as the agent of the
state, is possessed of the plenary power as the persona in law to
determine who shall be the favored recipients of public lands, as well as
under what terms they may be granted such privilege, not excluding the
placing of obstacles in the way of their exercise of what otherwise would
be ordinary acts of ownership.(Secretary of the Department of
Environment and Natural Resources v. Yap, G.R. No. 167707, 173775,
[October 8, 2008], 589 PHIL 156-201)

III. EXPLORATION, DEVELOPMENT AND UTILIZATION OF NATURAL

RESOURCES

1. The State, being the owner of the natural resources, is accorded the primary
power and responsibility in the exploration, development and utilization
thereof. As such it may undertake these activities through four modes:

(a) The State may directly undertake such activities;

(b) The State may enter into co-production, joint venture or production-
sharing agreements with Filipino citizens or qualified corporations;
(c) Congress may, by law, allow small-scale utilization of natural resources by
Filipino citizens;
(d) For the large-scale exploration, development and utilization of minerals,
petroleum and other mineral oils, the President may enter into agreements
with foreign-owned corporations involving technical or financial assistance.
[La Bugal-B’Laan Tribal Assn. v. Ramos, [Jan. 2004)]

2. The President may enter into agreements with foreign- owned corporations
involving either technical or financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and other mineral oils

103
 according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In
such agreements, the State shall promote the development and use of local
scientific and technical resources. [Art. XII, Sec. 2, par. 4]

3. Service Contracts not prohibited. Even supposing FTAAs are service

contracts, the latter are not prohibited under the Constitution. [Justification:
A verba legis interpretation does not support an intended prohibition. The
members of the CONCOM used the terms “service contracts” and “financial
and technical assistance” interchangeably.] [La Bugal-B’laan Tribal Assn. v.
Ramos, (Dec. 2004)]

The following are valid:

(1) Financial and Technical Assistance Agreements (FTAA)– not a prohibited
agreement in the contemplation of the Constitution
(2) Philippine Mining Law (RA 7942)
(3) (3) Its Implementing Rules and Regulations, insofar as they relate to
financial and technical agreements [La Bugal-B’laan Tribal Assn. v. Ramos
(Dec. 2004)]

The Constitution should be construed to grant the President and Congress

sufficient discretion and reasonable leeway to enable them to attract foreign
investments and expertise, as well as to secure for our people and our posterity
the blessings of prosperity and peace.

It is not unconstitutional to allow a wide degree of discretion to the Chief

Executive, given the nature and complexity of such agreements, the humongous
amounts of capital and financing required for large-scale mining operations, the
complicated technology needed, and the intricacies of international trade, coupled
with the State’s need to maintain flexibility in its dealings, in order to preserve and
enhance our country’s competitiveness in world markets. [La Bugal-B’laan
Tribal Assn. v. Ramos, id.]

4. Agreements for the exploration of the natural resources can have a life of 25
years, renewable for another 25 years.

5. The use an enjoyment of marine wealth in the archipelagic waters, territorial

sea and EEZ are reserved exclusively to Filipino citizens. (Nota bene: If this so,
we cannot enter into joint exploration and use in the Panatag Shoal and other
areas in dispute with China)

6. Foreign ownership of a hydropower facility is not prohibited under

existing laws. The construction, rehabilitation and development of hydropower
plants are among those infrastructure projects which even wholly-owned foreign
corporations are allowed to undertake under the Amended Build-Operate-
Transfer (Amended BOT) Law (R.A. No. 7718). 67 Beginning 1987, the policy has
been openness to foreign investments as evident in the fiscal incentives provided
for the restructuring and privatization of the power industry in the Philippines,

104
under the Power Sector Restructuring Program (PSRP) of the Asian Development
Bank.

Lease or transfer of water rights is allowed under the Water Code, subject to the
approval of NWRB after due notice and hearing. 79 However, lessees or
transferees of such water rights must comply with the citizenship requirement
imposed by the Water Code and its IRR. But regardless of such qualification of
water permit holders/transferees, it is to be noted that there is no provision in the
EPIRA itself authorizing the NPC to assign or transfer its water rights in case of
transfer of operation and possession of multi-purpose hydropower facilities. Since
only the power plant is to be sold and privatized, the operation of the non-power
components such as the dam and reservoir, including the maintenance of the
surrounding watershed, should remain under the jurisdiction and control of NPC
which continue to be a government corporation. There is therefore no necessity
for NPC to transfer its permit over the water rights to K-Water. Pursuant to its
purchase and operation/management contracts with K-Water, NPC may authorize
the latter to use water in the dam to generate electricity. (IDEALS, Inc. v. PSALM
Corp., G.R. No. 192088, [October 9, 2012], 696 PHIL 486-600)

Section 3. Lands of the public domain are classified into agricultural,

forest or timber, mineral lands and national parks. Agricultural
lands of the public domain may be further classified by law according
to the uses to which they may be devoted. Alienable lands of the
public domain shall be limited to agricultural lands. Private
corporations or associations may not hold such alienable lands of the
public domain except by lease, for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and not to
exceed one thousand hectares in area. Citizens of the Philippines
may lease not more than five hundred hectares, or acquire not more
than twelve hectares thereof, by purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and

development, and subject to the requirements of agrarian reform,
the Congress shall determine, by law, the size of lands of the public
domain which may be acquired, developed, held, or leased and the
conditions therefor.

Section 4. The Congress shall, as soon as possible, determine, by law,

the specific limits of forest lands and national parks, marking clearly
their boundaries on the ground. Thereafter, such forest lands and
national parks shall be conserved and may not be increased nor
diminished, except by law. The Congress shall provide for such
period as it may determine, measures to prohibit logging in
endangered forests and watershed areas.

1. The classification of public lands is an exclusive prerogative of the

Executive Department through the Office of the President. [Republic v. Register
of Deeds of Quezon (1994)] A positive act declaring land as alienable and
disposable is required. In keeping with the presumption of State ownership, the

105
Court has time and again emphasized that there must be a positive act of the
government, such as an official proclamation, declassifying inalienable public land
into disposable land for agricultural or other purposes. In fact, Section 8 of CA No.
141 limits alienable or disposable lands only to those lands which have been
"officially delimited and classified."(Secretary of the Department of
Environment and Natural Resources v. Yap, G.R. No. 167707, 173775, [October
8, 2008], 589 PHIL 156-201)

b. Lands of the Public Domain are classified into:

(a) Agricultural Lands;
(b)Forest or Timber Lands
(c) Mineral Lands
(d) National Park [Art. XII, Sec. 3]

a. Alienable lands of the public domain shall be limited to agricultural

lands. [Art. XII, Sec. 3]

b. To prove that the land subject of an application for registration is

alienable, an applicant must conclusively establish the existence of
a positive act of the government such as a presidential proclamation
or an executive order or a legislative act or statute. [Republic v.
Candymaker, Inc. (2006)]

a. A copy of the original classification of the land into alienable and

disposable declared by the DENR or proclaimed by the President
must be presented. (Spouses Fortuna vs. Republic, March 5,
2014.)

c. Foreshore land is that part of the land which is between the high
and low water, and left dry by the flux and reflux of the tides. It is
part of the alienable land of the public domain and may be disposed
of only by lease and not otherwise. [Republic v. Imperial, supra]
d. Private corporations or associations may not hold such alienable
lands of public domain except by lease, for a period not exceeding
25 years, and not to exceed 1000 hectares in area.

a. Chavez vs. PEA [2003], held that private corporations cannot

acquire, even through a joint venture, reclaimed lands, being
public lands.
b. But if the land is already private, such as in Director of Lands
vs. IAC and Acme Veneer, the constitutional prohibition will not
apply.

e. Citizens of the Philippines may lease not more than 500 ha., or
acquire not more than 12 hectares thereof by purchase, homestead,
or grant. [Art. XII, Sec. 3]

IV. ANCESTRAL LANDS

106
 Section 5. The State, subject to the provisions of this Constitution and
national development policies and programs, shall protect the rights
of indigenous cultural communities to their ancestral lands to
ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws

governing property rights or relations in determining the ownership
and extent of ancestral domain.

1. Ancestral domains and ancestral lands are the private property of

indigenous peoples and do not constitute part of the land of the public domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains
and ancestral lands. The private character of ancestral lands and domains as laid
down in the IPRA is further strengthened by the option given to individual
ICCs/IPs over their individually-owned ancestral lands. For purposes of
registration under the Public Land Act and the Land Registration Act, the IPRA
expressly converts ancestral land into public agricultural land which may be
disposed of by the State. The necessary implication is that ancestral land is
private. It, however, has to be first converted to public agricultural land
simply for registration purposes. Since ancestral domains and lands are private,
if the ICC/IP wants to avail of the benefits of C.A. 141 and Act 496, the IPRA itself
converts his ancestral land, regardless of whether the land has a slope of eighteen
per cent (18%) or over, from private to public agricultural land for proper
disposition. The option to register land under the Public Land Act and the Land
Registration Act has nonetheless a limited period. This option must be exercised
within twenty (20) years from October 29, 1997, the date of approval of the
IPRA.||| (Cruz v. Secretary of Environment and Natural Resources, G.R. No.
135385 (Resolution), [December 6, 2000], 400 PHIL 904-1115)

2. The right of ownership and possession by the ICCs/lPs of their ancestral

domains is a limited form of ownership and does not include the right to alienate
the same. Ownership of ancestral domains by native title does not entitle the
ICC/IP to a torrens title but to a Certificate of Ancestral Domain Title (CADT). The
CADT formally recognizes the indigenous concept of ownership of the ICCs/IPs
over their ancestral domain. The right of ownership and possession of the
ICCs/IPs to their ancestral domains is held under the indigenous concept of
ownership. This concept maintains the view that ancestral domains are the
ICCs/IPs private but community property. It is private simply because it is not part
of the public domain. But its private character ends there. The ancestral domain is
owned in common by the ICCs/IPs and not by one particular person. Ownership
over the natural resources in the ancestral domains remains with the State and
the ICCs/IPs are merely granted the right to "manage and conserve" them for
future generations, "benefit and share" the profits from their allocation and
utilization, and "negotiate the terms and conditions for their exploration" for the
purpose of "ensuring ecological and environmental protection and conservation
measures." Simply stated, the ICCs/IPs' rights over the natural resources take the
form of management or stewardship. (Cruz v. Secretary of Environment and
Natural Resources, G.R. No. 135385 (Resolution), [December 6, 2000], 400 PHIL
904-1115)

107
3. The right of the holders of a mere Certificate of Ancestral Land Claim
(CALC), possess the subject land is limited to occupation in relation to cultivation.
Unlike No. 1, Par. 1, Section 1, Article VII of the same DENR DAO, which expressly
allows ancestral domain claimants to reside peacefully within the domain, nothing
in Section 2 grants ancestral land claimants a similar right, much less the right to
build permanent structures on ancestral lands — an act of ownership that
pertains to one (1) who has a recognized right by virtue of a Certificate of
Ancestral Land Title.||| (Philippine Economic Zone Authority v. Carantes, G.R.
No. 181274, [June 23, 2010], 635 PHIL 541-554)

V. PRIVATE LANDS

Section 7. Save in cases of hereditary succession, no private lands

shall be transferred or conveyed except to individuals, corporations,
or associations qualified to acquire or hold lands of the public
domain.

Section 8. Notwithstanding the provisions of Section 7 of this Article,

a natural-born citizen of the Philippines who has lost his Philippine
citizenship may be a transferee of private lands, subject to
limitations provided by law.

1. General Rule: No private lands shall be transferred or conveyed except to

individuals, corporations, or associations qualified to acquire or hold lands of the
public domain. [Art. XII, Sec. 7]

2. Exceptions:
(A) Hereditary succession (art. XII, sec. 7)
(B) A natural-born citizen of the Philippines who has lost his Philippine citizenship
may be a transferee of private lands, subject to limitations provided by law. (art.
XII, sec. 8)

3. Any sale or transfer in violation of the prohibition is null and void. [Ong
Ching Po. v. CA (1994)]. When a disqualified foreigner later sells it to a qualified
owner (e.g. Filipino citizen), the defect is cured. The qualified buyer owns the land.
[See Halili v. CA (1998)]

4. Can a former owner file an action to recover the property? Yes. The Court
in Philippine Banking Corp. v. Lui She, (1967) abandoned the application of the
principle of in pari delicto. Thus, the action will lie.

5. However, land sold to an alien which was later transferred to a Filipino

citizen OR when the alien later becomes a Filipino citizen can no longer be
recovered by the vendor, because there is no longer any public policy involved.
[Republic v. IAC (1989)]

6. Q: Joe, an alien, invalidly acquired a parcel of land in the

Philippines. He subsequently transferred it to Jose, a Filipino citizen. What
is the status of the transfer?

108
A: If a land is invalidly transferred to an alien who subsequently becomes a
Filipino citizen or transfers it to a Filipino, the flaw in the original transaction is
considered cured and the title of the transferee is rendered valid. Since the ban on
aliens is intended to preserve the nation’s land for future generations of Filipinos,
that aim is achieved by making lawful the acquisition of real estate by aliens who
became Filipino citizens by naturalization or those transfers made by aliens to
Filipino citizens. As the property in dispute is already in the hands of a qualified
person, a Filipino citizen, there would be no more public policy to be protected.
The objective of the constitutional provision to keep our lands in Filipino hands
has been achieved. (Borromeo v. Descallar, GR No. 159310, Feb. 24, 2009)

7: If Joe had not transferred it to Jose but he, himself, was later
naturalized as a Filipino citizen, will his acquisition thereof remain invalid?

A: No. If a land is invalidly transferred to an alien who subsequently becomes

a Filipino citizen or transfer it to a Filipino, the flaw in the original transaction is
considered cured and the title of the transferee is rendered valid. (Borromeo v.
Descallar, GR No. 159310, Feb. 24, 2009)

h. Cases

a. In Ting Ho, Jr. v. Teng Gui, Felix Ting Ho, a Chinese citizen,
acquired a parcel of land, together with the improvements
thereon. Upon his death, his heirs (the petitioners therein)
claimed the properties as part of the estate of their deceased
father, and sought the partition of said properties among
themselves. We, however, excluded the land and improvements
thereon from the estate of Felix Ting Ho, precisely because he
never became the owner thereof in light of the above-mentioned
constitutional prohibition.

b. In Muller v. Muller, petitioner Elena Buenaventura Muller and

respondent Helmut Muller were married in Germany. During
the subsistence of their marriage, respondent purchased a
parcel of land in Antipolo City and constructed a house thereon.
The Antipolo property was registered in the name of the
petitioner. They eventually separated, prompting the
respondent to file a petition for separation of property.
Specifically, respondent prayed for reimbursement of the funds
he paid for the acquisition of said property. In deciding the case
in favor of the petitioner, the Court held that respondent was
aware that as an alien, he was prohibited from owning a parcel
of land situated in the Philippines. He had, in fact, declared that
when the spouses acquired the Antipolo property, he had it
titled in the name of the petitioner because of said prohibition.
Hence, we denied his attempt at subsequently asserting a right
to the said property in the form of a claim for reimbursement.
Neither did the Court declare that an implied trust was created
by operation of law in view of petitioner's marriage to

109
 respondent. We said that to rule otherwise would permit
circumvention of the constitutional prohibition.

c. In Frenzel v. Catito, petitioner, an Australian citizen, was

married to Teresita Santos; while respondent, a Filipina, was
married to Klaus Muller. Petitioner and respondent met and
later cohabited in a common-law relationship, during which
petitioner acquired real properties; and since he was
disqualified from owning lands in the Philippines, respondent's
name appeared as the vendee in the deeds of sale. When their
relationship turned sour, petitioner filed an action for the
recovery of the real properties registered in the name of
respondent, claiming that he was the real owner. Again, as in the
other cases, the Court refused to declare petitioner as the owner
mainly because of the constitutional prohibition. The Court
added that being a party to an illegal contract, he could not come
to court and ask to have his illegal objective carried out. One who
loses his money or property by knowingly engaging in an illegal
contract may not maintain an action for his losses.

d. Finally, in Cheesman v. Intermediate Appellate Court, (1991)

petitioner (an American citizen) and Criselda Cheesman
acquired a parcel of land that was later registered in the latter's
name. Criselda subsequently sold the land to a third person
without the knowledge of the petitioner. The petitioner then
sought the nullification of the sale as he did not give his consent
thereto. The Court held that assuming that it was his
(petitioner's) intention that the lot in question be purchased by
him and his wife, he acquired no right whatever over the
property by virtue of that purchase; and in attempting to acquire
a right or interest in land, vicariously and clandestinely, he
knowingly violated the Constitution; thus, the sale as to him was
null and void.

e. Benjamin, being an alien, is absolutely prohibited from

acquiring private and public lands in the Philippines.
Considering that Joselyn appeared to be the designated
"vendee" in the Deed of Sale of said property, she acquired sole
ownership thereto. This is true even if we sustain Benjamin's
claim that he provided the funds for such acquisition. By
entering into such contract knowing that it was illegal, no
implied trust was created in his favor; no reimbursement for his
expenses can be allowed; and no declaration can be made that
the subject property was part of the conjugal/community
property of the spouses. In any event, he had and has no capacity
or personality to question the subsequent lease of the Boracay
property by his wife on the theory that in so doing, he was
merely exercising the prerogative of a husband in respect of
conjugal property. To sustain such a theory would countenance

110
 indirect controversion of the constitutional prohibition. If the
property were to be declared conjugal, this would accord the
alien husband a substantial interest and right over the land, as
he would then have a decisive vote as to its transfer or
disposition. This is a right that the Constitution does not permit
him to have||| (Matthews v. Taylor, G.R. No. 164584, [June 22,
2009], 608 PHIL 193-205

i. Remedies to recover private lands from the aliens

a. Escheat proceedings
b. Action for reversion – Note only the State can institute reversion
proceedings (Tankiko vs. Cesar, 1999)

VI.FRANCHISE AND PUBLIC UTILITY

Section 11. No franchise, certificate, or any other form of

authorization for the operation of a public utility shall be granted
except to citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines, at least
sixty per centum of whose capital is owned by such citizens; nor shall
such franchise, certificate, or authorization be exclusive in character
or for a longer period than fifty years. Neither shall any such
franchise or right be granted except under the condition that it shall
be subject to amendment, alteration, or repeal by the Congress when
the common good so requires. The State shall encourage equity
participation in public utilities by the general public. The
participation of foreign investors in the governing body of any public
utility enterprise shall be limited to their proportionate share in its
capital, and all the executive and managing officers of such
corporation or association must be citizens of the Philippines.

1. Citizenship requirements

100% 60-40 70-30

111
Marine Wealth [Art. XII, Natural Resources [Art. Advertising Industry
sec. 2[2]] XII, Sec. 2[1]] [Art. XVI, Sec. 11]

(Co-production, Joint
venture, Production
sharing agreements)

Agreements shall not

exceed a period of 25
years renewable
another 25 years

Agricultural lands Educational Institutions

[Art. XII, Sec. 3] XIV, Sec. 4[2]]
(a) Lease: < 500
ha.

(b) Purchase,
homestead or
grant: < 12 ha.

(c) Private
corporations may
lease not more than
1,000 ha. for 25 years,
renewable for
another 25 years.

Practice of professions, Areas of Investment as

save in cases provided by Congress may prescribe
law [Art. XII, Sec. 14[2]] (percentage can be
higher)
[Art. XII, Sec. 10]

112
 Small-scale utilization of Operation of public
natural resources, as may utility (Art. XII, Sec. 11)
be provided by law [Art.
XII, Sec. 2[3]] (a) Cannot be for
longer period than 50
years

(b) Executive and

managing officers must
be Filipino

Mass media limited to

Filipino citizens or
corporations wholly
owned and managed by
Filipinos [Art. XVI, Sec.
11[2]]

2. A public utility is a business or service engaged in regularly supplying the

public with some commodity or service of public consequence. A joint venture falls
within the purview of an “association” pursuant to Sec. 11, Art. XII and must
comply with the 60%-40% Filipino-foreign capitalization requirement. [JG
Summit Holdings v. CA (2001)]

3. In the June 28, 2011 decision of the Supreme Court in Gamboa vs. Teves,
it was held that “the term "capital" in Section 11, Article XII of the Constitution
refers only to shares of stock entitled to vote in the election of directors, and thus
in the present case only to common shares, and not to the total outstanding capital
stock comprising both common and non-voting preferred shares.

However, in the 2012 decision, the SC held that “the 60% requirement applies to
both the voting control and the beneficial ownership of the public utility.
Therefore, it shall apply uniformly, separately, and across the board to all classes
of shares, regardless of nomenclature or category, comprising the capital of the
corporation. (e.g. 60% of common stock, 60% of preferred voting stock, and 60%
of preferred non-voting stock.) [Gamboa v. Teves (2012)]

4. Neither Congress nor the NTC can grant an exclusive "franchise, certificate,
of any other form of authorization" to operate a public utility. In Republic v.
Express Telecommunications Co., the Court held that "the Constitution is quite
emphatic that the operation of a public utility shall not be exclusive||| (Pilipino

113
Telephone Corp. v. National Telecommunications Commission, G.R. No.
138295, [August 28, 2003], 457 PHIL 101-120)

VII. Filipino First policy

In the grant of rights, privileges, and concessions covering the

national economy and patrimony, the State shall give preference to
qualified Filipinos. The State shall regulate and exercise authority
over foreign investments within its national jurisdiction and in
accordance with its national goals and priorities. [Art. XII, Sec. 10]

a. The term “patrimony” pertains to heritage, and given the history of the
Manila Hotel, it has become a part of our national economy and patrimony. Thus,
the Filipino First policy provision of the Constitution is applicable. Such provision
is per se enforceable, and requires no further guidelines or implementing rules or
laws for its operation. [Manila Prince Hotel v. GSIS, (1990)]

b. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive. [Art. XII, Sec. 12]

VIII. PRACTICE OF PROFESSIONS

The practice of all profession in the Philippines shall be limited to

Filipino citizens, save in the case prescribed by law. [Art. XII, Sec. 14]

a. It must be stressed however that the power to regulate the exercise of a

profession or pursuit of an occupation cannot be exercised by the State or its
agents in an arbitrary, despotic, or oppressive manner. A political body which
regulates the exercise of a particular privilege has the authority to both forbid and
grant such privilege in accordance with certain conditions. As the legislature
cannot validly bestow an arbitrary power to grant or refuse a license on a public
agency or officer, courts will generally strike down license legislation that vests in
public officials discretion to grant or refuse a license to carry on some ordinarily
lawful business, profession, or activity without prescribing definite rules and
conditions for the guidance of said officials in the exercise of their power.(Board
of Medicine v. Ota, G.R. No. 166097, [July 14, 2008], 580 PHIL 213-228)

I. COOPERATIVES

Sec. 15. Congress shall create an agency to promote the viability and
growth of cooperatives as instruments for social justice and
economic development.

It can be gleaned from the above-quoted provision of R.A. No. 6939 that the
authority of the CDA is to discharge purely administrative functions which consist
of policy-making, registration, fiscal and technical assistance to cooperatives and
implementation of cooperative laws. Nowhere in the said law can it be found any

114
express grant to the CDA of authority to adjudicate cooperative disputes. At most,
Section 8 of the same law provides that "upon request of either or both parties,
the Authority shall mediate and conciliate disputes with a cooperative or between
cooperatives" however, with a restriction "that if no mediation or conciliation
succeeds within three (3) months from request thereof, a certificate of non-
resolution shall be issued by the commission prior to the filing of appropriate
action before the proper courts." Being an administrative agency, the CDA has only
such powers as are expressly granted to it by law and those which are necessarily
implied in the exercise thereof.||| (Cooperative Development Authority v.
Dolefil Agrarian Reform Beneficiaries Cooperative, Inc., G.R. No. 137489, [May
29, 2002], 432 PHIL 290-322)

II. PRIVATE CORPORATIONS

Section 16. The Congress shall not, except by general law, provide for
the formation, organization, or regulation of private corporations.
Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good
and subject to the test of economic viability.

1. The purpose of this provision is to insulate Congress against pressure from

special interests to avoid creation of corporations to the detriment of others or the
interests of the country.

2. The test of economic viability for the creation of GOCCs is more than
financial viability but also includes capability to make profit and generate benefits
not quantifiable in financial terms. (III Record 623-630; IV Record 230-233)

XI. TEMPORARY TAKE-OVER OF BUSINESS

Section 17. In times of national emergency, when the public interest so

requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.

1. See David vs. Ermita (2006), the SC held that the power of the
President to take over the operation of public utilities is activated only if Congress
grants emergency powers under Art. VI, Sec. 23.

XII. MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR COMPETITION

MONOPOLIES

The State shall regulate or prohibit monopolies when the public interest so
requires. No combinations in restraint of trade or unfair competition shall
be allowed. [Art. XII, Sec. 19]

1. Although the Constitution enshrines free enterprise as a policy, it

nevertheless reserves to the Government the power to intervene whenever

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necessary for the promotion of the general welfare. [Philippine Coconut
Dessicators v. PCA (1998)]

2. Monopolies are not per se prohibited by the Constitution but may be

permitted to exist to aid the government in carrying on an enterprise or to aid in
the performance of various services and functions in the interest of the public.
Nonetheless, a determination must first be made as to whether public interest
requires a monopoly. As monopolies are subject to abuses that can inflict severe
prejudice to the public, they are subject to a higher level of State regulation than
an ordinary business undertaking. [Agan, Jr. v. PIATCO (2003)]

3. The framers of the constitution were well aware that trade must be
subjected to some form of regulation for the public good. Public interest must be
upheld over business interests.||| (Pharmaceutical and Health Care
Association v. Duque III, G.R. No. 173034, [October 9, 2007], 561 PHIL 386-451)

4. See RA No. 10667 or the Philippine Competition Act, which penalizes all
forms of anti-competitive agreements, abuse of dominant position and anti-
competitive mergers and acquisitions, with the objective of protecting consumer
welfare and advancing domestic and international trade and economic
development.

X. CENTRAL MONETARY AUTHORITY [ART. XII, SEC. 20]

1. Functions:
(a) Provide policy directions in the areas of money, banking, and credit;
(b) Supervise the operations of banks;
(c) Exercise such regulatory powers as may be provided by
law over the operations of finance companies and other institutions performing
similar functions

2. Qualifications of the Governors

(a)Natural-born Filipino;
(b) Known probity, integrity and patriotism;
(c) Majority shall come from the private sector
Subject to such other qualifications and disabilities as may be provided by law

Until the Congress otherwise provides, the Central Bank of the Philippines
operating under existing laws, shall function as the central monetary authority.
Currently, the central monetary authority is the Bangko Sentral ng Pilipinas.

LABOR

Section 3. The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all.

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It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law. They shall be entitled to security of
tenure, humane conditions of work, and a living wage. They shall also
participate in policy and decision-making processes affecting their rights
and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between

workers and employers and the preferential use of voluntary modes in
settling disputes, including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production and
the right of enterprises to reasonable returns to investments, and to
expansion and growth.

Notes:

1. Sec. 3 of Art. XIII of the Constitution requires the State to give full
protection to labor. We cannot be faithful to this duty if we give no protection to
labor when the violator of its rights happens to be private parties like private
employers. A private person does not have a better right than the government to
violate an employee's right to due process. To be sure, violation of the particular
right of employees to security of tenure comes almost always from their private
employers. [Serrano v. NLRC (2000)]

2. Protection to labor does not mean promotion of employment alone. (JMM

Promotion and Management vs. CA, 260 SCRA 319)

AGRARIAN AND NATURAL RESOURCES REFORM

Section 4. The State shall, by law, undertake an agrarian reform program

founded on the right of farmers and regular farmworkers who are landless,
to own directly or collectively the lands they till or, in the case of other
farmworkers, to receive a just share of the fruits thereof. To this end, the
State shall encourage and undertake the just distribution of all agricultural
lands, subject to such priorities and reasonable retention limits as the
Congress may prescribe, taking into account ecological, developmental, or
equity considerations, and subject to the payment of just compensation. In
determining retention limits, the State shall respect the right of small
landowners. The State shall further provide incentives for voluntary land-
sharing.

Section 5. The State shall recognize the right of farmers, farmworkers, and
landowners, as well as cooperatives, and other independent farmers’
organizations to participate in the planning, organization, and management

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of the program, and shall provide support to agriculture through
appropriate technology and research, and adequate financial, production,
marketing, and other support services.

Section 6. The State shall apply the principles of agrarian reform or

stewardship, whenever applicable in accordance with law, in the disposition
or utilization of other natural resources, including lands of the public
domain under lease or concession suitable to agriculture, subject to prior
rights, homestead rights of small settlers, and the rights of indigenous
communities to their ancestral lands.
The State may resettle landless farmers and farmworkers in its own
agricultural estates which shall be distributed to them in the manner
provided by law.

Section 7. The State shall protect the rights of subsistence fishermen,

especially of local communities, to the preferential use of the communal
marine and fishing resources, both inland and offshore. It shall provide
support to such fishermen through appropriate technology and research,
adequate financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve such resources.
The protection shall extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a just share
from their labor in the utilization of marine and fishing resources.

Section 8. The State shall provide incentives to landowners to invest the

proceeds of the agrarian reform program to promote industrialization,
employment creation, and privatization of public sector enterprises.
Financial instruments used as payment for their lands shall be honored as
equity in enterprises of their choice.

Notes:

1. Maddumba vs. GSIS, 182 SCRA 281 the SC held that GSIS can be compelled
to accept LBP bonds issued in agrarian reform program in payment of a house and
lot purchased as it is fully guaranteed by the government.

URBAN LAND REFORM AND HOUSING

Section 9. The State shall, by law, and for the common good, undertake, in
cooperation with the private sector, a continuing program of urban land
reform and housing which will make available at affordable cost, decent
housing and basic services to underprivileged and homeless citizens in
urban centers and resettlement areas. It shall also promote adequate
employment opportunities to such citizens. In the implementation of such
program the State shall respect the rights of small property owners.

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Section 10. Urban or rural poor dwellers shall not be evicted nor their
dwelling demolished, except in accordance with law and in a just and
humane manner.

No resettlement of urban or rural dwellers shall be undertaken without

adequate consultation with them and the communities where they are to be
relocated.

Notes:

1. The constitutional requirement that the eviction and demolition be in

accordance with law and conducted in a just and humane manner does not mean
that the validity of legality of the demolition or eviction is hinged on the existence
of a resettlement area designated or earmarked by the government. What is meant
by "in accordance with law" and "just and humane manner" is that the person to
be evicted be accorded due process or an opportunity to controvert the allegation
that his or her occupation or possession of the property involved is unlawful or
against the will of the landowner; that should the illegal or unlawful occupation
be proven, the occupant be sufficiently notified before actual eviction or
demolition is done; and that there be no loss of lives, physical injuries or
unnecessary loss of or damage to properties.(People v. Leachon, Jr., G.R. Nos.
108725-26, [September 25, 1998], 357 PHIL 165-174)

2. In Magkalas v. NHA, this Court had already ruled on the validity of

evictions and demolitions without any court order. In that case, we affirmed
the validity of Section 2 of Presidential Decree No. 1472 which authorizes the NHA
to summarily eject all informal settlers' colonies on government resettlement
projects as well as any illegal occupant in any homelot, apartment or dwelling unit
owned or administered by the NHA. In that case, we held that Caridad Magkalas'
illegal possession of the property should not hinder the NHA's development of
Bagong Barrio Urban Bliss Project. We further stated that demolitions and
evictions may be validly carried out even without a judicial order in the following
instances:
(1) when the property involved is an expropriated property . . . pursuant to Section
1 of P.D. No. 1315;
(2) when there are squatters on government resettlement projects and illegal
occupants in any homelot, apartment or dwelling unit owned or administered by
the NHA pursuant to Section 2 of P.D. No. 1472;
(3) when persons or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways and other public places such
as sidewalks, roads, parks and playgrounds, pursuant to Section 28(a) of R.A. No.
7279;
(4) when government infrastructure projects with available funding are about to
be implemented pursuant to Section 28(b) of R.A. No. 7279. 26 (emphasis ours)

We note that Section 10, Article 13 of the 1987 Constitution provides that urban
or rural poor dwellers shall not be evicted nor their dwelling demolished, except
in accordance with law and in a just and humane manner. Paragraph 1, Section 28
of RA 7279 allows summary evictions and demolition in cases where persons or

119
entities occupy danger areas and when persons or entities occupy areas where
government infrastructure projects with available funding are about to be
implemented.
To ensure that evictions and demolitions are conducted in a just and humane
manner, paragraph 2, Section 28 of RA 7279 commands the public respondents to
comply with the following prescribed procedure in executing eviction and/or
demolition orders

(Kalipunan ng Damayang Mahihirap, Inc. v. Robredo, G.R. No. 200903, [July 22,
2014])

ROLE AND RIGHTS OF PEOPLE’S ORGANIZATIONS

Section 15. The State shall respect the role of independent people’s organizations
to enable the people to pursue and protect, within the democratic framework,
their legitimate and collective interests and aspirations through peaceful and
lawful means.
People’s organizations are bona fide associations of citizens with demonstrated
capacity to promote the public interest and with identifiable leadership,
membership, and structure.
Section 16. The right of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic decision-
making shall not be abridged. The State shall, by law, facilitate the establishment
of adequate consultation mechanisms.

ARTICLE XIV
EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS

EDUCATION

Section 1. The State shall protect and promote the right of all citizens to
quality education at all levels, and shall take appropriate steps to make such
education accessible to all.

Section 2. The State shall:

(1) Establish, maintain, and support a complete, adequate, and integrated
system of education relevant to the needs of the people and society;
(2) Establish and maintain a system of free public education in the
elementary and high school levels. Without limiting the natural right of
parents to rear their children, elementary education is compulsory for all
children of school age;
(3) Establish and maintain a system of scholarship grants, student loan
programs, subsidies, and other incentives which shall be available to
deserving students in both public and private schools, especially to the
underprivileged;
(4) Encourage non-formal, informal, and indigenous learning systems, as
well as self-learning, independent, and out-of-school study programs
particularly those that respond to community needs; and

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(5) Provide adult citizens, the disabled, and out-of-school youth with
training in civics, vocational efficiency, and other skills.

Notes:

1. It is true that this Court has upheld the constitutional right of every citizen
to select a profession or course of study subject to a fair, reasonable, and equitable
admission and academic requirements. But like all rights and freedoms
guaranteed by the Charter, their exercise may be so regulated pursuant to the
police power of the State to safeguard health, morals, peace, education, order,
safety, and general welfare of the people. Thus, persons who desire to engage in
the learned professions requiring scientific or technical knowledge may be
required to take an examination as a prerequisite to engaging in their chosen
careers. This regulation takes particular pertinence in the field of medicine, to
protect the public from the potentially deadly effects of incompetence and
ignorance among those who would practice medicine.||| (Professional
Regulation Commission v. De Guzman, G.R. No. 144681, [June 21, 2004], 476
PHIL 596-623)

2. The educational operation of schools is subject to prior authorization of the

government and is effected by recognition. In the case of government-operated
schools, whether local, regional or national, recognition of educational programs
and/or operations is deemed granted simultaneously with establishment. In all
other cases the rules and regulations governing recognition are prescribed and
enforced by the DECS, defining therein who are qualified to apply, providing for a
permit system, stating the conditions for the grant of recognition and for its
cancellation and withdrawal, and providing for related matters. The requirement
on prior government authorization is pursuant to the State policy that educational
programs and/or operations shall be of good quality and therefore shall at least
satisfy minimum standards with respect to curricula, teaching staff, physical plant
and facilities and of administrative or management viability. (Philippine
Merchant Marine School, Inc. v. Court of Appeals, G.R. No. 112844, [June 2,
1995], 314 PHIL 798-823)

Section 3. (1) All educational institutions shall include the study of the
Constitution as part of the curricula.
(2) They shall inculcate patriotism and nationalism, foster love of humanity,
respect for human rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and duties of
citizenship, strengthen ethical and spiritual values, develop moral character
and personal discipline, encourage critical and creative thinking, broaden
scientific and technological knowledge, and promote vocational efficiency.
(3) At the option expressed in writing by the parents or guardians, religion
shall be allowed to be taught to their children or wards in public elementary
and high schools within the regular class hours by instructors designated or
approved by the religious authorities of the religion to which the children or
wards belong, without additional cost to the Government.

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Section 4.(1) The State recognizes the complementary roles of public and
private institutions in the educational system and shall exercise reasonable
supervision and regulation of all educational institutions.

(2) Educational institutions, other than those established by religious

groups and mission boards, shall be owned solely by citizens of the
Philippines or corporations or associations at least sixty per centum of the
capital of which is owned by such citizens. The Congress may, however,
require increased Filipino equity participation in all educational
institutions.

The control and administration of educational institutions shall be vested in

citizens of the Philippines.

No educational institution shall be established exclusively for aliens and no

group of aliens shall comprise more than one-third of the enrollment in any
school. The provisions of this subsection shall not apply to schools
established for foreign diplomatic personnel and their dependents and,
unless otherwise provided by law, for other foreign temporary residents.

(3) All revenues and assets of non-stock, non-profit educational institutions

used actually, directly, and exclusively for educational purposes shall be
exempt from taxes and duties. Upon the dissolution or cessation of the
corporate existence of such institutions, their assets shall be disposed of in
the manner provided by law.

Proprietary educational institutions, including those cooperatively owned,

may likewise be entitled to such exemptions, subject to the limitations
provided by law, including restrictions on dividends and provisions for
reinvestment.

(4) Subject to conditions prescribed by law, all grants, endowments,

donations, or contributions used actually, directly, and exclusively for
educational purposes shall be exempt from tax.

Notes:

1. Constitutional limitation on operation of educational institutions

a. Solely owned by Filipino citizens or

corporation 60% Filipino-owned.
b. Control and administration vested in
Filipinos
c. No educational institutions exclusively for
aliens, and no group of aliens shall
comprise more than 1/3 of the enrolment,
except schools for foreign diplomatic
personnel and dependents.

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2. ACTS PERMITTED BY THE ESTABLISHMENT CLAUSE
Constitutionally created
(1) Tax exemption
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. [Art. VI, Sec. 28 (3)]
(2) Operation of sectarian schools
Educational institutions, other than those established by religious groups and
mission boards, shall be owned solely by citizens of the Philippines or
corporations or associations at least sixty per centum of the capital of which is
owned by such citizens... [Art. XIV, Sec. 4(2)]
(3) Religious instruction in public schools
At the option expressed in writing by the parents or guardians, religion shall be
allowed to be taught to their children or wards in public elementary and high
schools within the regular class hours by instructors designated or approved by
the religious authorities of the religion to which the children or wards belong,
without additional cost to the Government. [Art. XIV, Sec. 3(3)]

Section 5. (1) the State shall take into account regional and sectoral needs
and conditions and shall encourage local planning in the development of
educational policies and programs.
(2) Academic freedom shall be enjoyed in all institutions of higher learning.
(3) Every citizen has a right to select a profession or course of study, subject
to fair, reasonable, and equitable admission and academic requirements.
(4) The State shall enhance the right of teachers to professional
advancement. Non-teaching academic and non-academic personnel shall
enjoy the protection of the State.
(5) The State shall assign the highest budgetary priority to education and
ensure that teaching will attract and retain its rightful share of the best
available talents through adequate remuneration and other means of job
satisfaction and fulfillment.

Notes:

Academic freedom

1. FOUR ESSENTIAL FREEDOMS OF A UNIVERSITY

(a) Who may teach

(b) What may be taught
(c) How it shall teach
(d) Who may be admitted to study [Garcia v. Faculty Admission Committee
(1975) citing J. Frankfurter, concurring in Sweezy v. New Hampshire, 354 US 232
(1937)]

Institutional academic freedom includes the right of the school or college to decide
for itself, its aims and objectives, and how best to attain them free from outside

123
coercion or interference save possibly when the overriding public interest calls
for some restraint.

Academic freedom encompasses the independence of an academic institution to

determine for itself (1) who may teach, (2) what may be taught, (3) how it shall
teach, and (4) who may be admitted to study.

2. The right to discipline the student likewise finds basis in the freedom "what
to teach." Indeed, while it is categorically stated under the Education Act of 1982
that students have a right "to freely choose their field of study, subject to existing
curricula and to continue their course therein up to graduation," such right is
subject to the established academic and disciplinary standards laid down by the
academic institution. [DLSU Inc., v. CA (2007)]

3, The right of the school to discipline its students is at once apparent in the
third freedom, i.e., "how it shall be taught." A school certainly cannot function in
an atmosphere of anarchy.

Thus, there can be no doubt that the establishment of an educational institution

requires rules and regulations necessary for the maintenance of an orderly
educational program and the creation of an educational environment conducive
to learning. Such rules and regulations are equally necessary for the protection of
the students, faculty, and property.

Moreover, the school has an interest in teaching the student discipline, a

necessary, if not indispensable, value in any field of learning. By instilling
discipline, the school teaches discipline. Accordingly, the right to discipline the
student likewise finds basis in the freedom "what to teach."
Incidentally, the school not only has the right but the duty to develop discipline in
its students. The Constitution no less imposes such duty. DaESIC

[All educational institutions] shall inculcate patriotism and nationalism, foster

love of humanity, respect for human rights, appreciation of the role of national
heroes in the historical development of the country, teach the rights and duties of
citizenship, strengthen ethical and spiritual values, develop moral character and
personal discipline, critical and creative thinking, broaden scientific and
technological knowledge, and promote vocational efficiency. (Miriam College
Foundation, Inc. v. Court of Appeals, G.R. No. 127930, [December 15, 2000], 401
PHIL 431-463)

4. The PMA is not different. As the primary training and educational

institution of the AFP, it certainly has the right to invoke academic freedom in the
enforcement of its internal rules and regulations, which are the Honor Code and
the Honor System in particular.

The Honor Code is a set of basic and fundamental ethical and moral principle. It is
the minimum standard for cadet behavior and serves as the guiding spirit behind
each cadet's action. It is the cadet's responsibility to maintain the highest standard
of honor. Throughout a cadet's stay in the PMA, he or she is absolutely bound

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thereto. It binds as well the members of the Cadet Corps from its alumni or the
member of the so-called "Long Gray Line."

Likewise, the Honor Code constitutes the foundation for the cadets' character
development. It defines the desirable values they must possess to remain part of
the Corps; it develops the atmosphere of trust so essential in a military
organization; and it makes them professional military soldiers. As it is for
character building, it should not only be kept within the society of cadets. It is best
adopted by the Cadet Corps with the end view of applying it outside as an officer
of the AFP and as a product of the PMA.

The Honor Code and System could be justified as the primary means of achieving
the cadets' character development and as ways by which the Academy has chosen
to identify those who are deficient in conduct. Upon the Code rests the ethical
standards of the Cadet Corps and it is also an institutional goal, ensuring that
graduates have strong character, unimpeachable integrity, and moral standards of
the highest order. To emphasize, the Academy's disciplinary system as a whole is
characterized as "correctional and educational in nature rather than being
legalistic and punitive." Its purpose is to teach the cadets "to be prepared to accept
full responsibility for all that they do or fail to do and to place loyalty to the service
above self-interest or loyalty to friends or associates. (Cudia v. Superintendent
of the Philippine Military Academy, G.R. No. 211362, [February 24, 2015])

5. Academic freedom also accords a faculty member the right to pursue his
studies in his particular specialty. It is defined as a right claimed by the accredited
educator, as teacher and as investigator, to interpret his findings and to
communicate his conclusions without being subjected to any interference,
molestation, or penalty because these conclusions are unacceptable to some
constituted authority within or beyond the institution. As applied to the case at
bar, academic freedom clothes Dr. Daleon with the widest latitude to innovate and
experiment on the method of teaching which is most fitting to his students
(graduate students at that), subject only to the rules and policies of the university.
Considering that the Board of Regents, whose task is to lay down school rules and
policies of the University of Southeastern Philippines, has validated his teaching
style, we see no reason for petitioner to complain before us simply because he
holds a contrary opinion on the matter.||| (Camacho v. Coresis, Jr., G.R. No.
134372, [August 22, 2002], 436 PHIL 449-462)

6. Procedural due process in investigation over students

"(1) the students must be informed in writing of the nature and cause of any
accusation against them; (2) that they shall have the right to answer the charges
against them with the assistance of counsel, if desired; (3) they shall be informed
of the evidence against them; (4) they shall have the right to adduce evidence in
their own behalf; and (5) the evidence must be duly considered by the
investigating committee or official designated by the school authorities to hear
and decide the case." (Ateneo De Manila University v. Capulong, G.R. No. 99327,
[May 27, 1993])

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7. Under the U.P. Charter; the Board of Regents is the highest governing body of
the University of the Philippines. (Act No. 1870, § 4) It has the power to
confer degrees upon the recommendation of the University Council. It follows
that if the conferment of a degree is founded on error or fraud, the Board of
Regents is also empowered, subject to the observance of due process, to
withdraw what it has granted without violating a student's rights. An
institution of higher learning cannot be powerless if it discovers that an
academic degree it has conferred is not rightfully deserved. Nothing can be
more objectionable than bestowing a university's highest academic degree
upon an individual who has obtained the same through fraud or deceit. The
pursuit of academic excellence is the university's concern. It should be
empowered, as an act of self-defense, to take measures to protect itself from
serious threats to its integrity. ||| (University of the Philippines Board of
Regents v. Court of Appeals, G.R. No. 134625, [August 31, 1999], 372 PHIL
287-309)

8. Thus, we hold that by opting to retain private petitioner and even promoting
him despite his absence without leave, the University was exercising its
freedom to choose who may teach or, more precisely, who may continue to
teach in its faculty. Even in the light of the provision of the Revised Civil
Service Law,the Respondent CSC had no authority to dictate to UP the outright
dismissal of its personnel. The former could not have done so without
trampling upon the latter's constitutionally enshrined academic freedom.|||
(University of the Phils. v. Civil Service Commission, G.R. No. 132860,
[April 3, 2001], 408 PHIL 132-147)

LANGUAGE

Section 6. The national language of the Philippines is Filipino. As it evolves,

it shall be further developed and enriched on the basis of existing Philippine
and other languages.

Subject to provisions of law and as the Congress may deem appropriate, the
Government shall take steps to initiate and sustain the use of Filipino as a
medium of official communication and as language of instruction in the
educational system.

Section 7. For purposes of communication and instruction, the official

languages of the Philippines are Filipino and, until otherwise provided by
law, English.

The regional languages are the auxiliary official languages in the regions and
shall serve as auxiliary media of instruction therein.

Spanish and Arabic shall be promoted on a voluntary and optional basis.

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Section 8. This Constitution shall be promulgated in Filipino and English and
shall be translated into major regional languages, Arabic, and Spanish.

Section 9. The Congress shall establish a national language commission

composed of representatives of various regions and disciplines which shall
undertake, coordinate, and promote researches for the development,
propagation, and preservation of Filipino and other languages.

SCIENCE AND TECHNOLOGY

Section 10. Science and technology are essential for national development and
progress. The State shall give priority to research and development, invention,
innovation, and their utilization; and to science and technology education,
training, and services. It shall support indigenous, appropriate, and self-reliant
scientific and technological capabilities, and their application to the country’s
productive systems and national life.

Section 11. The Congress may provide for incentives, including tax deductions, to
encourage private participation in programs of basic and applied scientific
research. Scholarships, grants-in-aid, or other forms of incentives shall be
provided to deserving science students, researchers, scientists, inventors,
technologists, and specially gifted citizens.

Section 12. The State shall regulate the transfer and promote the adaptation of
technology from all sources for the national benefit. It shall encourage the widest
participation of private groups, local governments, and community-based
organizations in the generation and utilization of science and technology.

Section 13. The State shall protect and secure the exclusive rights of scientists,
inventors, artists, and other gifted citizens to their intellectual property and
creations, particularly when beneficial to the people, for such period as may be
provided by law.

ARTS AND CULTURE

Section 14. The State shall foster the preservation, enrichment, and dynamic
evolution of a Filipino national culture based on the principle of unity in diversity
in a climate of free artistic and intellectual expression.

Section 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nation’s historical and cultural heritage
and resources, as well as artistic creations.

Section 16. All the country’s artistic and historic wealth constitutes the cultural
treasure of the nation and shall be under the protection of the State which may
regulate its disposition.

Section 17. The State shall recognize, respect, and protect the rights of indigenous
cultural communities to preserve and develop their cultures, traditions, and

127
institutions. It shall consider these rights in the formulation of national plans and
policies.

Section 18. (1) The State shall ensure equal access to cultural opportunities
through the educational system, public or private cultural entities, scholarships,
grants and other incentives, and community cultural centers, and other public
venues.
(2) The State shall encourage and support researches and studies on the arts and
culture.

SPORTS

Section 19. (1) The State shall promote physical education and encourage sports
programs, league competitions, and amateur sports, including training for
international competitions, to foster self-discipline, teamwork, and excellence for
the development of a healthy and alert citizenry.
(2) All educational institutions shall undertake regular sports activities
throughout the country in cooperation with athletic clubs and other sectors.

ARTICLE XV
THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
Section 3. The State shall defend:
(1) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
(2) The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation and other
conditions prejudicial to their development;
(3) The right of the family to a family living wage and income; and
(4) The right of families or family associations to participate in the planning and
implementation of policies and programs that affect them.
Section 4. The family has the duty to care for its elderly members but the State
may also do so through just programs of social security.

Take Note:

1. Section 23(a)(2)(i) of the RH Law is unconstitutional as the reproductive

health procedures like tubal litigation and vasectomy which, by their very nature,
should require mutual consent and decision between the husband and the wife as
they affect issues intimately related to the founding of a family. Section 3, Art. XV
of the Constitution espouses that the State shall defend the "right of the spouses
to found a family." One person cannot found a family. The right, therefore, is
shared by both spouses. In the same Section 3, their right "to participate in the

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planning and implementation of policies and programs that affect them" is equally
recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By

giving absolute authority to the spouse who would undergo a procedure, and
barring the other spouse from participating in the decision would drive a wedge
between the husband and wife, possibly result in bitter animosity, and endanger
the marriage and the family, all for the sake of reducing the population. This would
be a marked departure from the policy of the State to protect marriage as an
inviolable social institution. (Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819,
204934, 204957, 204988, 205003, 205043, 205138, 205478, 205491, 205720,
206355, 207111, 207172, 207563, [April 8, 2014])

ARTICLE XVI
GENERAL PROVISIONS

Section 1. The flag of the Philippines shall be red, white, and blue, with a sun and
three stars, as consecrated and honored by the people and recognized by law.

Section 2. The Congress may, by law, adopt a new name for the country, a national
anthem, or a national seal, which shall all be truly reflective and symbolic of the
ideals, history, and traditions of the people. Such law shall take effect only upon
its ratification by the people in a national referendum.

Section 3. The State may not be sued without its consent.

Section 4. The Armed Forces of the Philippines shall be composed of a citizen
armed force which shall undergo military training and serve as may be provided
by law. It shall keep a regular force necessary for the security of the State.
Section 5. (1) All members of the armed forces shall take an oath or affirmation to
uphold and defend this Constitution.
(2) The State shall strengthen the patriotic spirit and nationalist consciousness of
the military, and respect for people’s rights in the performance of their duty.
(3) Professionalism in the armed forces and adequate remuneration and benefits
of its members shall be a prime concern of the State. The armed forces shall be
insulated from partisan politics.
No member of the military shall engage, directly or indirectly, in any partisan
political activity, except to vote.
(4) No member of the armed forces in the active service shall, at any time, be
appointed or designated in any capacity to a civilian position in the Government,
including government-owned or controlled corporations or any of their
subsidiaries.
(5) Laws on retirement of military officers shall not allow extension of their
service.
(6) The officers and men of the regular force of the armed forces shall be recruited
proportionately from all provinces and cities as far as practicable.
(7) The tour of duty of the Chief of Staff of the armed forces shall not exceed three
years. However, in times of war or other national emergency declared by the
Congress, the President may extend such tour of duty.

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Section 6. The State shall establish and maintain one police force, which shall be
national in scope and civilian in character, to be administered and controlled by a
national police commission. The authority of local executives over the police units
in their jurisdiction shall be provided by law.
Section 7. The State shall provide immediate and adequate care, benefits, and
other forms of assistance to war veterans and veterans of military campaigns,
their surviving spouses and orphans. Funds shall be provided therefor and due
consideration shall be given them in the disposition of agricultural lands of the
public domain and, in appropriate cases, in the utilization of natural resources.
Section 8. The State shall, from time to time, review to increase the pensions and
other benefits due to retirees of both the government and the private sectors.
Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.
Section 10. The State shall provide the policy environment for the full
development of Filipino capability and the emergence of communication
structures suitable to the needs and aspirations of the nation and the balanced
flow of information into, out of, and across the country, in accordance with a policy
that respects the freedom of speech and of the press.
Section 11. (1) The ownership and management of mass media shall be limited to
citizens of the Philippines, or to corporations, cooperatives or associations,
wholly-owned and managed by such citizens.
The Congress shall regulate or prohibit monopolies in commercial mass media
when the public interest so requires. No combinations in restraint of trade or
unfair competition therein shall be allowed.
(2) The advertising industry is impressed with public interest, and shall be
regulated by law for the protection of consumers and the promotion of the general
welfare.
Only Filipino citizens or corporations or associations at least seventy per
centum of the capital of which is owned by such citizens shall be allowed to engage
in the advertising industry.
The participation of foreign investors in the governing body of entities in such
industry shall be limited to their proportionate share in the capital thereof, and all
the executive and managing officers of such entities must be citizens of the
Philippines.
Section 12. The Congress may create a consultative body to advise the President
on policies affecting indigenous cultural communities, the majority of the
members of which shall come from such communities.

Notes:

1. Flag of the Philippines [sec. 1]

(a) Red, white and blue,with a sun and three stars
(b) Design of the flag may be changed only by constitutional amendment
[BERNAS]

2. Name of the country, national anthem, and national seal [sec. 2]

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(a) May be changed by Congress by law
(b) Such law will only take effect upon ratification by the people in a national
referendum

3. Armed Forces of the Philippines [sec. 4]

a. Composed of a citizen armed force

b. Shall take an oath of affirmation to uphold and defend the Constitution [sec.
5(1)]
c. May not be appointed or designated to a civilian position in the
government including GOCCs or their subsidiaries [sec. 5(4)]
d. Laws on retirement of military officers shall not
allow extension of their service [sec. 5(5)]
e. Recruited proportionately from all provinces and
cities as far as practicable [sec.5(6)]
f. Tour of duty of the Chief of Staff shall not exceed three years [sec. 5(7)] BUT
may be extended by the President in times of war or other national emergency
declared by the Congress [Id.]

4. Mass Media [sec.11]

Ownership and management limited to (i) citizens of the Philippines or

(ii)corporations, cooperatives or associations wholly-owned and managed
by Filipino citizens

5. Advertising Industry [sec. 11]

(a) Can only be engaged in by (i) Filipino citizens or (ii) corporations or

associations at least 70% of which is owned by Filipino citizens
(b) Participation of foreign investors is limited to their proportionate share
in the capital
(c) Managing officers must be Filipino citizen

Doctrine of Sovereign Immunity

1. BASES

Constitutional (Textual) Basis:“The State may not be sued without its

consent.” [CONST., art. XVI, Sec. 13].

International Law Basis:“Par in parem non habet imperium”

Jurisprudential Basis:

(1) Positivist Theory - There can be no legal right as against the authority that
makes the laws on which the right depends. Also called the doctrine of Royal
Prerogative of Dishonesty. [Kawananakoa v. Polyblank (1907)]

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(2) Sociological Theory - If the State is amenable to suits, all its time would be
spent defending itself from suits and this would prevent it from performing its
other functions. [Republic vs. Villasor (1973)]

2. CONCEPT

A. When against the state

A suit is against the State regardless of who is named the defendant if:

1. It produces adverse consequences to the public treasury in terms of

disbursement of public funds and loss of government property.
2. Cannot prosper unless the State has given its consent.

B. When not against the state

It was held that the suit is not against the State:

1. When the purpose of the suit is to compel an officer charged with the
duty of making payments pursuant to an appropriation made by law in
favor of the plaintiff to make such payment, since the suit is intended to
compel performance of a ministerial duty. [Begoso v. PVA (1970)]
2. When from the allegations in the complaint, it is clear that the
respondent is a public officer sued in a private capacity;
3. When the action is not in personam with the government as the named
defendant, but an action in rem that does not name the government in
particular.

3. HOW STATE’S CONSENT IS GIVEN

a. Express consent

Effected only by the will of the legislature through the medium of a duly
enacted statute; may be embodied either in a general law or a special law:

i. General Law -Authorizes any person who meets the

conditions stated in the law to sue the government in accordance with the
procedure in the law (Act 3083)

ii. Torts

Provinces, cities and municipalities shall be liable for damages for

the death or injuries suffered by any person by reason of the
defective conditions of roads, streets, public buildings and other
public works under their control and supervision. [Art. 2189, CC]

As to the vicarious liability under CC art. 2180(6): The Government

is only liable for the acts of its agents, officers and employees, when
they act as special agents within the meaning of the provision.

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 Special Agent - One who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office if he is
a special official. [Merritt v. Gov’t of the Philippine Islands, (1916)]

iii. Special Law - may come in the form of a private bill

authorizing a named individual to bring suit on a special claim

b. Implied Consent

a) When the State enters into a business contract or itself commences

litigation;

b) If the gov’t files a complaint, defendant may file a counterclaim

against it. When the state files complaint, suability will result only
where the government is claiming affirmative relief from the
defendant.

c) When it would be inequitable for the State to invoke its immunity.

d) In instances when the State takes private property for public use or
purpose.

4. Specific Rules

a. Suits against Government Agencies – Depends on whether the agency is

incorporated (i.e. there is a separate charter) or unincorporated (i.e. no separate
personality).

(1) Incorporated – If the charter provides that the agency can sue, then suit
will lie. The provision in the charter constitutes express consent. [See SSS v. Court
of Appeals (1983)]
(2) Unincorporated – There must be an inquiry unto the principal functions
of government.

(a) If governmental: NO suit without consent. [Bureau of Printing v.

Bureau of Printing Employees Association (1961)].

(b) If proprietary: Suit will lie, because when the state engages in
principally proprietary functions, it descends to the level of a private
individual, and may, therefore be vulnerable to suit. [Civil Aeronautics
Administration v. Court of Appeals (1988)]. State may only be liable for
proprietary acts (jure gestionis) and not for sovereign acts (jure imperii).

b. Suits against Public Officers – The doctrine of state immunity also applies
to complaints filed against officials of the State for acts performed by them in the
discharge of their duties within the scope of their authority.

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 Exception: The doctrine of immunity from suit will not apply and may
not be invoked where the public official is being sued in his (1) private and
personal capacity as an ordinary citizen, for (2) acts without authority or in excess
of the powers vested in him. (Lansang vs CA [2000])

Note: Acts done without authority are not acts of the State.

5. Exceptions to Prior Consent Rule

Caselaw provides that the following are well-recognized exceptions when the
state/public officer MAY be sued without prior consent:

a. To compel him to do an act required by law;

b. To restrain him from enforcing an act claimed to be
unconstitutional;
c. To compel the payment of damages from an already appropriated
assurance fund or to refund tax over- payments from a fund already
available for the purpose;
d. To secure a judgment that the officer impleaded may satisfy by
himself without the State having to do a positive act to assist him;
e. Where the government itself has violated its own laws. [Sanders v.
Veridiano II, (1988)]

6. Scope of Consent (Suability v. Liability)

Consent to be sued is not concession of liability. Suability depends on the

consent of the state to be sued, and liability on the applicable law and the
established facts. The circumstance that a state is suable does not necessarily
mean that it is liable, but it can never be held liable if it does not first consent to be
sued. When the state does waive its sovereign immunity, it is only giving the
plaintiff the chance to prove that it is liable. [United States of America v. Guinto
(1990)]

ARTICLE XVII
AMENDMENTS OR REVISIONS

Section 1. Any amendment to, or revision of, this Constitution may be proposed
by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by

the people through initiative upon a petition of at least twelve per centum of the
total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.

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Section 3. The Congress may, by a vote of two-thirds of all its Members, call a
constitutional convention, or by a majority vote of all its Members, submit to the
electorate the question of calling such a convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1
hereof shall be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority
of the votes cast in a plebiscite which shall be held not earlier than sixty days nor
later than ninety days after the certification by the Commission on Elections of the
sufficiency of the petition.

NOTES:

1. AMENDMENT

An addition or change within the lines of the original constitution as will effect an
improvement, or better carry out the purpose for which it was framed; a change
that adds, reduces or deletes without altering the basic principles involved; affects
only the specific provision being amended. [Lambino v. COMELEC (2006)]

2. REVISION

A change that alters a basic principle in the constitution, like altering the principle
of separation of powers or the system of checks-and-balances; alters the
substantial entirety of the constitution, as when the change affects substantial
provisions of the constitution. [Id.]

3. DIFFERENCE BETWEEN AMENDMENT AND REVISION

Revision generally affects several provisions of the constitution, while

amendment generally affects only the specific provision being amended [Id.] This
distinction is significant because the 1987 Constitution allows people’s initiative
only for the purpose of amending, not revising, the Constitution.[See Lambino,
supra]

4. LEGAL TESTS

Lambino considered the two-part test: the quantitative test and the qualitative
test.

a. Quantitative test - The court examines only the number of

provisions affected and does not consider the degree of the change.

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 b. Qualitative test - inquires into the qualitative effects of the proposed
change in the constitution. The main inquiry is whether the change will
“accomplish such far reaching changes in the nature of our basic governmental
plan as to amount to a revision.” The changes include those to the “fundamental
framework or the fundamental powers of its Branches,” and those that “jeopardize
the traditional form of government and the system of check and balances.”
Whether there is an alteration in the structure of government is a proper subject
of inquiry.[See Lambino, supra.]

4. STEPS IN THE AMENDATORY PROCESS

a. There are two steps in the amendatory process: (1) proposal, and
(2) ratification

b. Proposal – The adoption of the suggested change in the

Constitution.

(i) Congress (as a Constituent Assembly) – a vote of 3⁄4 of ALL

its members.
(ii) Constitutional Convention – Called into existence by (i) 2/3
of all members of Congress OR (ii) the electorate, in a
referendum called for by a majority of all members of
Congress [CONST., art. XVII, sec. 3]
(iii) People (through a People’s Initiative)- petition of at least
12% of the total number of registered voters; every
legislative district must be represented by at least 3% of the
registered voters therein.

c. Limitation on Initiative: No amendment in this manner shall be

authorized (1) within 5 years following the ratification of the 1987 Const. nor (2)
more often than once every 5 years thereafter.

d. Ratification – the proposed amendment shall be submitted to the

people and shall be deemed ratified by the majority of the votes cast in the
plebiscite, held not earlier than 60 days nor later than 90 days:

(i) After approval of the proposal by Congress or Concon;

(ii) After certification by the COMELEC of sufficiency of petition of the
people.

e. Doctrine of Proper Submission – A plebiscite may be held on the

same day as a regular election [Gonzales v. COMELEC (1967)]. The entire
Constitution must be submitted for ratification at one plebiscite only. The people
must have a proper “frame of reference”. [Tolentino v. COMELEC (1971)]. No
“piecemeal submission,” e.g. submission of age amendment ahead of other
proposed amendments. [Tolentino, supra]

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 N.B.The process of revision is the same in all respects except that it cannot
be proposed via a People’s Initiative. [See Lambino, supra]

f. Judicial Review of Amendments – The validity of the process of

amendment is not a political question because the Court must review if
constitutional processes were followed. [See Lambino, supra]

Note 6
CONSTITUTIONAL LAW REVIEW

Prof. Rolando B. Faller

CONSTITUTIONAL COMMISSIONS
AND THE OMBUDSMAN

I. CONSTITUTIONAL COMMISSIONS

1. Safeguards ensuring the independence of CSC, Comelec and COA:

a. They are constitutionally created; they may not be abolished by

statute (Sec. 1, Art. IX-A);
b. Each is expressly described as independent (Id.);
c. Each is conferred certain powers and functions which cannot be
reduced by statute;
d. The Chairmen and members cannot be removed except by
impeachment;
e. The terms of office of the chairmen and members of all
commissions are staggered in such a way as to lessen the
opportunity for appointment of the majority of the body by the
same President.
f. The chairmen and members may not be appointed in an acting
capacity.
g. The salaries of the chairmen and members are relatively high and
may not be decreased during the continuance in office.
h. The Commissions enjoy fiscal autonomy.
i. Each Commission may promulgate its own procedural rules,
provided they do not diminish, increase or modify substantive
rights.
j. The chairmen and members are subject to certain disqualifications
calculated to strengthen their integrity.
k. The Commissions may appoint their own officials and employees in
accordance with civil service law.

Note: Gonzales II vs. Office of the President, G.R. No. 196231, 196232, [January
28, 2014

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 (1) "[T]he independence enjoyed by the Office of the Ombudsman and by
the Constitutional Commissions shares certain characteristics — they do not owe
their existence to any act of Congress, but are created by the Constitution
itself; additionally, they all enjoy fiscal autonomy. In general terms, the framers
of the Constitution intended that these 'independent' bodies be insulated
from political pressure to the extent that the absence of 'independence' would
result in the impairment of their core functions";
(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman
must have the independence and flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and
violative not only [of] the express mandate of the Constitution, but especially as
regards the Supreme Court, of the independence and separation of powers upon
which the entire fabric of our constitutional system is based"; and

(3) "[T]he constitutional deliberations explain the Constitutional

Commissions' need for independence. In the deliberations of the 1973
Constitution, the delegates amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one created by law,
on the premise that the effectivity of this body is dependent on its freedom
from the tentacles of politics. In a similar manner, the deliberations of the 1987
Constitution on the Commission on Audit highlighted the developments in the past
Constitutions geared towards insulating the Commission on Audit from
political pressure.

2. Inhibitions/Disqualifications (Section 2) - Members of constitutional

commissions:

a. shall not, during tenure, hold any other office or employment;

b. shall not engage in the practice of any profession;
c. shall not engage in the active management or control of any
business which in any way may be affected by the functions of his
office.
d. shall not be financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies or instrumentalities,
including government- owned or controlled corporation or their
subsidiaries.

Purpose of Disqualifications. To compel the chairmen and members of

the Constitutional Commissions to devote their full attention to the discharge of
their duties and, as well, to remove from them any temptation to take advantage
of their official positions for selfish purposes.

“Practice of profession” for the purpose of Section 3, does not include

teaching. Thus, a lawyer who teaches law does not thereby, for the purpose of

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Section 2, violate the prohibition of practice of a profession. (I RECORD 544-555,
558- 559)

Prohibition of “active management” does not prohibit a Commissioner

from owning business but it prohibits him from being the managing officer or a
member of the governing board of a business, “which in any way may be affected
by the functions of his office,” a qualifying phrase which does not apply to the
prohibition of a practice of a profession. (I RECORD 552-559)

3. Rotational Scheme of Appointments(Section 1(2) of Article IX-B, C and

D.) - The first appointees shall serve 7, 5 and 3 years respectively.

Reason for Staggering of Terms:

a. To lessen the opportunity of the President to appoint a majority of

the body during his term;
b. To ensure continuance of the body, which always retains 2/3 of its
membership.
c. The system is expected to stabilize the policies of the body as
maintained by the remaining members.537

Note: Gaminde v. COA, December 13, 2000. It was held that in order to preserve
the periodic succession mandated by the Constitution, the rotational plan requires
two conditions: (1) The terms of the first commissioners should start on a
common date (Feb 2, 1987); and (2) Any vacancy due to death, resignation
or disability before the expiration of the term should only be filled for the
unexpired balance of the term.

4. Proceedings

a. Decision

i. There is no decision until the draft is signed and promulgated.

Hence, if a commissioner signs a decision but retires before the
decision is promulgated, his vote does not count even if it was he
who penned the decision. (Ambil v. COMELEC, October 25, 2005)

ii. The decisions are made by the body and not by individual members.
No individual member may make a decision for the Commission.
Much less may cases be decided by subordinates of the Commission.
Not even the Commission’s legal counsel may make a decision fro
the Commission.

iii. 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. (Article IX-A Section 7)

iv. Unless otherwise provided by this Constitution or by law, any

decision, order, or ruling of each Commission may be brought to the

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 Supreme Court on certiorari by the aggrieved party within 30 days
fro the receipt thereof. (Article IX-A Section 7)

b. How are decisions of the commissions reviewed by the SC?

i. Commission on Audit: Judgments or final orders of the

Commission on Audit may be brought by an aggrieved party to the
Supreme Court on certiorari under Rule 65. Only when COA acts
without or excess in jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, may the SC entertain a
petition for certiorari under Rule 65.

ii. Civil Service Commission: In the case of decisions of the CSC,

Administrative Circular 1-95538 which took effect on June 1, 1995,
provides that final resolutions of the CSC shall be appealable by
certiorari to the CA within 15 days from receipt of a copy thereof.
From the decision of the CA, the party adversely affected thereby
shall file a petition for review on certiorari under Rule 45 of the
Rules of Court.

iii. In the case of decisions of the COMELEC, only decision en banc may
be brought to the Court by certiorari since Article IX-C, 3 says that
motions for reconsideration of decisions shall be decided by the
Commission en banc. (Reyes v. RTC, 1995)

5. Fiscal Autonomy

In Civil Service Commission v. DBM, July 22, 2005, the SC said that the “no
report, no release” policy may not be validly enforced against offices vested with
fiscal autonomy, without violating Section 5 of Article IX-A of the Constitution. The
“automatic release” of approved annual appropriations to petitioner, a
constitutional commission vested with fiscal autonomy should thus be construed
to mean that no condition to fund releases to it may be imposed. Xxx However,
petitioner’s claim that its budget may not be reduced by Congress below the
amount appropriated for the previous year, as in the case of the Judiciary, must be
rejected. The provisions in Section 3, Article VIII, prohibiting the reduction in the
appropriation for the Judiciary below the amount appropriated for the previous
year does not appear in Section 5, Article IX-A. The plain implication of this
omission is that Congress is not prohibited from reducing the appropriations of
Constitutional Commissions below the amount appropriated for them for the
previous year.

Note: The Commission on Human Rights does not enjoy fiscal autonomy. (CHR
Employees Association v. CHR, November 25, 2004).

6. Power to Promulgate Rules

a. In case of conflict between a rule of procedure promulgated by a

Commission and a Rule of Court, the rule of the Commission should

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 prevail if the proceeding is before the Commission; but if the
proceeding is before a court, the Rules of Court prevail. (Aruelo Jr.
v. CA, October 20, 1993)

b. The Supreme Court has no power to disapprove Commission rules

except through the exercise of the power of “judicial review” when
such Commission rules violate the Constitution.

c. Congress cannot assume power to review rules promulgated by the

Commission, and when it did, it acted beyond the scope of its
constitutional authority. Congress trampled upon the constitutional
mandate of independence of the COMELEC.) (Macalintal v.
COMELEC, July 10, 2003)

d. If the rules promulgated by a Commission are inconsistent with a

statute, the statute prevails. (Antonio v. COMELEC, September 22,
1999)

II. CIVIL SERVICE COMMISSION

1. Functions of CSC

a. The CSC shall administer the civil service. (Art. IX-B, §1(1))
b. The CSC as the personnel agency of the government shall establish
a career service;
c. It shall adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil service.
d. It shall strengthen the merit and rewards system;
e. It shall integrate all human resources development programs for all
levels and ranks;
f. It shall institutionalize a management climate conducive to public
accountability.
g. It shall submit to the President and the Congress an annual report
on its personnel programs. (Article IX-B, Section 3)

Note:

i. In the exercise of its powers to implement RA 6850 (granting civil

service eligibility toe employees under provisional or temporary
status who have rendered seven years of efficient service), the CSC
enjoys wide latitude of discretion and may not be compelled by
mandamus to issue eligibility. (Torregoza v. CSC) But the CSC
cannot validly abolish the Career Executive Service Board (CESB);
because the CESB was created by law, it can only be abolished by
the Legislature (Eugenio v. CSC, 1995)
ii. It is the intent of the Civil Service Law, in requiring the
establishment of a grievance procedure, that decisions of lower
officials (in cases involving personnel actions) be appealed to the

141
 agency head, then to the CSC. The RTC does not have jurisdiction
over such personal actions. (Olanda v. Bugayong, 2003)
iii. The Commission has original jurisdiction and decide a complaint for
cheating in the Civil Service examinations committed by
government employees. The fact that the complaint was filed by the
CSC itself does not mean that it cannot be an impartial judge. (Cruz
v. CSC. 2001)
iv. As central personnel agency of the government, the CSC may revoke
a certificate of eligibility motu propio. The power to issue a
certificate of eligibility carries with it the power to revoke one that
has been given. Whether hearing is required for revocation
depends on circumstances of a case. (Thus, where the case
“simply involves the rechecking of examination papers and nothing
more than a re-evaluation of documents already in the records of
the CSC according to a standard answer key previously set by it,
notice and hearing is not required. Instead, what [would apply in
such a case is] the rule of res ipsa loquitor.” (Lazo v. CSC, 1994)

2. Civil Service

a. The civil service embraces all branches, subdivisions,

instrumentalities and agencies of the government, including GOCCs with original
charters.

Note: The test for determining whether a government owned or

controlled corporation is subject to the Civil Service Law: The test is the manner
of its creation. Corporations created by special charter are subject to the Civil
Service, whereas corporations incorporated under the Corporation Law are not.
(PNOC v. Leogardo, 1989)

b. Classes of service in the Civil Service

i. Career – characterized by entrance based on merit and fitness to

be determined by competitive examinations, or based on highly
technical qualifications, opportunity for advancement to higher
career positions, and security of tenure.
ii. Career executive service – this requires (1) career executive
service eligibility (CESO) and (2) appointment to the appropriate
career executive service rank (rank IV to I). Among those in this
category are Undersecretaries and bureau directors appointed by
the President. Take note that the security of tenure of employees in
the career executive service pertains only to rank and not to the
office or to the position to which they may be appointed. Thus, a
career executive service officer may be transferred or reassigned
from one position to another without losing his rank which follows
him wherever he is transferred or reassigned.

Note: The mere fact that a position belongs to the CES does not
automatically confer security of tenure on the applicant. Such right

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 will have to depend on the nature of his appointment which, in turn,
depends on his eligibility or lack of it. A person who does not have
the requisite qualifications for the position cannot be appointed to
it in the first place or, only as an exception to the rule, may be
appointed to it only in an acting capacity in the absence of
appropriate eligibles. The appointment extended to him cannot be
regarded as permanent even if it may be so designated. Such being
the case, he could transferred or reassigned without violating the
constitutional guarantee of security of tenure. (De Leon v. CA,
2001)

Note: It must be stressed that the security of tenure of employees

in the CES (except 1st and 2nd level employees in the civil service)
pertains only to rank and not to the office or to the position to which
they may be appointed. (Thus, a CES officer may be transferred or
reassigned form one position to another without losing his rank
which follows him wherever he is transferred or reassigned. In fact,
a CES officer suffers no diminution in salary even if assigned to a
CES position with lower salary grade, as he is compensated
according to his CES rank and not on the basis of the position or
office which he occupies. (General v. Roco, 2001)

iii. Non-career service –characterized by entrance on bases other

than those of the usual tests utilized for the career service, tenure
limited to a period specified by law or which is co-terminus with
that of the appointing authority. Among those in this category are
(1) elective officials; (2) department heads and officials of Cabinet
rank, and their personal and confidential staff; (3) Chairmen and
members of commissions and their personal and confidential staff;
(4) contractual personnel; and (5) emergency and seasonal
personnel.

c. Under the Constitution, policy-determining, primarily confidential,

and highly technical positions are exempt from the rule requiring
appointments in the Civil Service to be made on the basis of merit
and fitness.

i. A position is policy determining where its occupant is

vested with power of formulating policies for the
government or any of its agencies, subdivisions, or
instrumentalities, like that of a member of Cabinet.

ii. A position is primarily confidential where its occupant

enjoys more than the ordinary confidence in his aptitude
of the appointing power but bears primarily such close
intimacy which insures freedom of intercourse without
embarrassment or freedom from misgivings or betrayals
on confidential matters of state, or one declared to be so
by the President of the Philippines upon

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 recommendation of the Civil Service Commission (Delos
Santos vs. Mallare, 87 Phil. 289)

Proximity Rule: The occupant of a particular position

can be considered a confidential employee if the
predominant reason why he was chosen by the
appointing authority was the latter’s belief that he can
share a close intimate relationship with the occupant
which ensures freedom of discussion without fear of
embarrassment or misgivings of possible betrayals of
personal trust and confidential matters of state.
(Where the position occupied is remote from that of the
appointing authority, the element of trust between them
is no longer predominant, and therefore, cannot be
classified as primarily confidential)

Note: In Montecillo v. CSC, 2001, the SC said that

under Administrative Code of 1987, the CSC is expressly
empowered to declare positions in the CSC as primarily
confidential. This signifies that the enumeration in the
Civil Service decree, which defines the non-career
service, is not an exclusive list. The Commission can
supplement this enumeration, as it did when it issued
Memorandum Circular 22, s. 1991, specifying positions
in the Civil Service which are considered primarily
confidential and, therefore, their occupants hold tenure
co- terminous with the officials they serve.

iii. A position is highly technical where its occupant is

required to possess skills or training in the supreme or
superior degree, like that of a scientist. In Besa vs. PNB,
33 SCRA 330, the position of legal counsel of PNB was
declared to be both primarily confidential and highly
technical, with the former aspect predominating.

d. Personnel Actions

i. Promotion – is a movement from one position to another

with increase in duties and responsibilities as authorized by
law and usually accompanied by an increase in pay.

Note: The “next-in-rank” rule in the Civil Service Law is not

mandatory; the appointing authority is allowed to fill a vacancy by
promotion from the pool of nominees of his choice and confidence,
provided they are qualified and eligible. (Espanol vs. CSC, 208 SCRA
715)

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Note: The provision of a law requiring “recommendation” for an
appointment to be made is essentially persuasive in character but
is not binding orobligatory upon the person to whom it is made. The
discretion of the appointing authority not only in thechoice of the
person who is to be appointed, but also in the nature and character
of the appointment extended prevails. (Province of Camarines Sur
vs. Court of Appeals, 246 SCRA 281)

Note: Automatic reversion rule provides that the disapproval of

the appointment of a person proposed to a higher position
invalidates the promotion of those in the lower positions and
automatically restores them to their former positions. For this rule
to apply, (a) there must be a series of promotions; (b) all
promotional appointment are simultaneously submitted to the
Commission for approval; (c) the Commission disapproves the
appointment of a person to a higher position.

ii. Appointment through Certification – is issued to a person

who has been selected from a list of qualified persons
certified by the CSC from an appropriate register of eligible,
and who meets all the qualifications prescribed for the
position.

iii. Transfer is a movement from one position to another which

is of equivalent rank, level or salary without break in service.
Under current civil service rules and regulations, transfer
may be imposed as an administrative penalty.

iv. Detail is the movement of an employee from one agency to

another without the issuance of an appointment, and shall be
allowed only for a limited period in the case of employees
occupying professional, technical and scientific positions. It
is temporary in nature.

v. Reassignment is when an employee is transferred or

reassigned from one organizational unit to another in the
same agency, provided that such reassignment shall not
involve a reduction in rank, status or salary. It is an exercise
of management prerogative and does not constitute removal
without cause.

Note: Magnaye vs. CSC (2010)

Under the Civil Service rules, the first 6 months of service following
a permanent appointment shall be probationary in nature, and the
probationer may be dropped from the service for unsatisfactory
conduct or want of capacity anytime before the expiration of the
probationary period.

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 The right to security of tenure is not available to those employees
whose appointments are contractual and co-terminous in nature.

3. Appointments in the Civil Service

1. An appointment is permanent if the person appointed possesses all the

requisite qualifications, including the eligibility required for the position, and
thus protected by security of tenure.
2. It is temporary if it is extended to one who may not possess the requisite
qualifications or eligibility required by law for the position, and is revocable
at will, without the necessity of just cause.
3. What determines the appointment as being “permanent” is not that the
position belongs to the civil service but rather whether the appointee has the
requisite qualifications and eligibility.
4. An appointment with “a fixed term, unless sooner terminated” is an
appointment in an acting capacity, and the appointee cannot be terminated
without just cause.
5. An “acting” appointment is a temporary appointment and revocable in
character. [Marohombsar v. Alonto (1991)]

i. A temporary appointee is like a designated officer – they:

occupy a position in an acting capacity and do not enjoy
security of tenure. [Sevilla v. CA (1992)]
ii. Even a Career Service Officer unqualified for the position is
deemed temporarily-appointed. Thus he does not enjoy
security of tenure – he is terminable at will.

▪ A public officer who later accepts a temporary appointment

terminates his relationship with his former office.
[Romualdez III v. CSC (1991)]
iv. EXCEPT Fixed-Period Temporary Appointments: may be
revoked ONLY at the period’s expiration. Revocation before
expiration must be for a valid cause.

f. Political appointment is generally a political question so long as the

appointee fulfills the minimum qualification requirements
prescribed by law.

g. Vacancy for Validity. For the appointment to be valid, the position

must be vacant. [Castin v. Quimbo (1983)]

h. The power of appointment to public office is generally regarded as,

in its nature, an executive function, whether exercised by the
executive, legislative or judicial offices or bodies.

i. Appointment or reappointment of a public officer involves the

exercise of discretion which, unless gravely abused, the courts will
not attempt to control. It cannot be the subject of an application for
a writ of mandamus to compel the exercise of such discretion.

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 Note: While it is an exercise of discretion, the power of appointment
should be used by the appointing authority consistent with the
prescribed qualifications imposed by law for such position. The
President’s power to appoint under the Constitution should
necessarily have a reasonable measure of freedom, latitude, or
discretion in choosing appointees. [Cuyegkeng v. Cruz (1960)]

Where only one can qualify for the posts in question, the President
is precluded from exercising his discretion to choose whom to
appoint. Such supposed power of appointment, sans the
essential element of choice, is no power at all and goes against the
very nature of appointment itself. [Flores v. Drilon (1993)]

j. Regular and ad interim appointments can be used only when

referring to the four (4) categories of appointments made by the
President in the first sentence of Sec. 16 Art. VII of the 1987
Constitution.

i. An appointment is regular if it is made while Congress is

in session and nomination is confirmed by the
Commission on Appointments and continues until the
end of the term.
ii. It is ad interim when it is made while Congress is not in
session, and is immediately effective and ceases to be
valid if disapproved or bypassed by the Commission on
Appointments.
iii. The Constitution itself makes an ad interim appointment
permanent in character by making it effective until
disapproved by the Commission on Appointments or
until the next adjournment of Congress. [Matibay v.
Benipayo (2002)]

i. Not Acting. An ad interim appointment is

distinguishable from an “acting” appointment which
is merely temporary, good until another permanent
appointment is issued.

k. An appointment becomes complete only when the last act required

of the appointing power is performed. See Lacson vs. Romero, 84
Phil. 740, where the SC held that the acceptance of the appointment
by the appointee is the last act that completes the appointing
process. Also, appointment in the career service, attestation by the
Civil Service Commission is required.

4. Disqualifications from Appointments

a. No candidate who has lost in any election shall, within one year after
such election, be appointed to any office in the Government or any

147
 Government-owned or controlled corporations or in any of their
subsidiaries. (§6)
b. No elective official shall be eligible for appointment or designation
in any capacity to any public office or position during his tenure.
(§7)
c. Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including Government-owned or
controlled corporations or their subsidiaries. (§7)

5. Security of Tenure

a. No officer or employee of the civil service shall be removed or

suspended except for cause provided by law. (§2(3)
b. Security of Tenure is enjoyed only by those who posses a
permanent appointment.

 One does not become a permanent appointee unless

qualified for the position, and this, even if the appointment
extended is mistakenly designated as permanent.

 The appointment of one who is not qualified can only be

temporary and it is understood from the outset that it is
without fixity but enduring only at the pleasure of the
appointing authority.

 For an appointment to be permanent, it must be a real

appointment by the appointing authority and not just a
designation by one who does not have the appointing
authority. (Thus, where the law says that the officer is to be
appointed by the President, designation by the department
secretary does not result in a permanent appointment.
(Binamira v. Garucho))

 Even one who has an appointment to a position which is

subsequently converted to a career position must yield the
position to one who has it if he or she does not possess
career eligibility.(Dimayuga v. Benedicto II)

 A person lacking the necessary qualifications who is given

a temporary appointment does not automatically become a
permanent appointee when he or she acquires the required
qualification. (For a temporary appointee to become
permanent, he must receive a new commission, that is, a
permanent appointment if he is to be considered
permanent.)

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III. THE COMMISSION ON ELECTIONS

1. Composition

a. 1 chairman and 6 Commissioners

b. Appointed by the President with the consent of the Commission on
Appointments for a term of 7 years without reappointment.
c. No member shall be appointed or designated in a temporary or
acting capacity. [Art. IX-C, Sec. 1, Constitution]

2. Qualifications

i. Natural born Filipino citizens

ii. At least 35 years old
iii. Holders of a college degree
iv. Not candidates for any elective position in the
immediately preceding election.
v. Majority, including the chairman, must be members
of the Bar who have been engaged in the practice of
law for at least 10 years. [Art. IX-C, Sec. 1, Const.]

3. Inhibitions/Disqualifications:

1. Shall not, during tenure, hold any other office or employment.

2. Shall not engage in the practice of any profession.
3. Shall not engage in the active management or control of any
business which in any way may be affected by the functions of his
office.
4. Shall not be financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies or instrumentalities,
including GOCCs or their subsidiaries.

4. Powers and Functions

4.1. Constitutional powers and functions [Art. IX-C, Sec. 2]

a. Enforce and administer all laws relative to the conduct of an election,

plebiscite, initiative referendum and recall

i. Promulgate rules and regulations in the enforcement of laws

relative to elections.
ii. Fix appropriate periods for accomplishment of pre-election
acts.
iii. Annul/cancellation illegal registry lists of voters and order
the preparation of a new one.
iv. Cancel canvass of election returns and annul proclamation
based on incomplete results. (Note: COMELEC does not have
the power to annul an election which may not have been free,

149
 orderly, and honest; such power is merely preventive, not
curative.)

b. Quasi-Judicial Powers

i. Exclusive original jurisdiction over all

contests relating to the election, returns and
qualifications of all elective regional,
provincial and city officials.
ii. The possibility of a conflict of jurisdiction
between the COMELEC and the Electoral Tribunal
regarding contests involving congressional
elections has been foreclosed by Sec. 15, R.A.
7166, An Act Providing for Synchronized National
and Local Elections and Electoral Reforms, which
prohibits pre-proclamation controversies in
national offices.
iii. Jurisdiction of the Electoral Tribunal is exercised
over the members of the House or Senate. A party
to the election controversy is a member of the
House or Senate only after he has been
proclaimed, has taken his oath and has assumed
the functions of the office. [Aquino vs COMELEC
(1995)]
iv. Exclusive appellate jurisdiction over all
contests involving municipal officials decided
by the RTC, or involving elective barangay
officials decided by the MTC. In these cases, the
decisions therein shall be final, executory and
unappealable.
v. The fact that decisions, final orders or rulings of
the COMELEC in contests involving elective
municipal and barangay officials are final,
executory and not appealable, does not preclude a
recourse to the Supreme Court by way of a special
civil action for certiorari.

c. Decide all questions affecting elections

1. Including:
a. Determination of the number and location of polling places
b. Appointment of election officials and inspectors
c. Registration of voters
2. However, it has no jurisdiction over questions involving the right to
vote (i.e. disqualifications of voters, right of a person to be registered,
etc.)

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d. Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities, including the AFP, for the exclusive purpose of ensuring free,
orderly, honest, peaceful and credible elections.

e. Register political parties, organizations or coalitions.

f. Accredit citizens' arms.

g. File, upon a verified complaint, or on its own initiative, petitions in court for the
inclusion or exclusion of votes.

h. Investigate and prosecute cases of violation of election laws

vi. The COMELEC has the power of a public

prosecutor with the authority to conduct the
preliminary investigation and the prosecution of
election offenses punishable under the election
law. The power may be exercised upon complaint
or motu proprio.
vii. See Arroyo vs. Joint DOJ-Comelec Task
Force (2013), where it was held that the
independence of the Comelec is not bargained
away by the creation of a task force with DOJ as its
authority to conduct preliminary investigation is
no longer exclusive.

i. Recommend

1. to Congress effective measures

a. to minimize election spending
b. to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates
2. to the President
a. removal of any officer or employee it has deputized
1. imposition of disciplinary action for
violation or disregard of, or disobedience
to its directive, order, or decision
2. pardon, amnesty, parole or suspension of
sentence for violation of election laws,
rules and regulations

j. Supervise or regulate during the election period the use or enjoyment of all
franchises or permits for operation of:
viii. transportation and other public utilities
ix. media of communication or information
x. all grants, special privileges, or concessions
granted by the Government or any
instrumentality thereof

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 o to ensure equal opportunity, time, and space, and the right to reply
for the holding of free, orderly, honest and peaceful elections

4.2. Statutory powers

a. Power to postpone election [Sec. 5, B.P. 881]

b. Power to declare failure of elections [Sec. 6, B.P. 881]
c. Power to call a special election [Sec. 4, R.A. 7166]

5. Rendition of Decision

a. Composition

The COMELEC may sit en banc or in 2 divisions.

I. General Rule: Election cases, including pre- proclamation

controversies, shall be heard and decided in division

The rule applies only when COMELEC exercises its adjudicatory or

quasi- judicial functions, not when it exercises purely administrative
functions.

II. Exceptions: Decisions that must be rendered by the COMELEC en banc

include:

I. Decisions on motions for reconsideration [Art. IX-C, Sec. 3, Const.]

II. Petitions for correction of manifest errors in the tabulation or tallying of
results [Sec. 5, Rule 27 of the 1993 Rules of the COMELEC]
III. Questions pertaining to proceedings of the Board of Canvassers [(Mastura
v. Comelec, (1998)]
IV. Postponement of election [Sec. 4, R.A. 7166, An Act Providing for
Synchronized National and Local Elections and Electoral Reforms]
V. Declaration of failure of election [Sec. 4, R.A. 7166]
VI. Calling of special elections [Sec. 4, R.A. 7166]

b. Time Period and Votes Required

Decide by majority vote of all its members any case or matter brought
before it within 60 days from the date of its submission for decision or resolution.
[Art. IX-A, Sec. 7 Const.]

c. COMELEC decisions reviewable by the Supreme Court

i. Only decisions of the COMELEC en banc may be brought to the

Supreme Court by petition on certiorari within 30 days from receipt
of a copy thereof. [Art. IX-A, Sec. 7, Const.]

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 ii. By certiorari, a party raises questions of law in the Supreme Court.
Findings of fact made by the COMELEC are conclusive upon the
Supreme Court.
iii. Only decisions of the COMELEC made in the exercise of its
adjudicatory or quasi-judicial power may be brought to the
Supreme Court on certiorari.

➢ Determinations made by the COMELEC which are merely

administrative (not quasi- judicial) in character, may be challenged
in an ordinary civil action before the RTC. (Salva vs. Makalintal,
Sept. 9, 2000)
➢ The Supreme Court has no power of supervision over the COMELEC
except to review its decisions on petitions by certiorari.

6. Registration of Political Parties

a. Party System - A free and open party system shall be allowed to

evolve according to the free choice of the people. [Art. IX-C, Sec. 6, Const.] No votes
cast in favor of a political party, organization, coalition shall be valid, except for
those registered under the party-list system. [Art. IX-C, Sec. 7, Const.]

b. The Comelec has authority to resolve matters involving the

ascertainment of the identity of the political party and its legitimate officers, with
its authority flowing from its constitutional power to enforce and administer all
laws and regulations relative to the conduct of the election and its power to
register and regulate political parties. (LDP vs. Comelec, 423 SCRA 665)

c. To acquire juridical personality, qualify it for subsequent

accreditation, and entitle it to rights and privileges granted to political parties, a
political party shall first be duly registered with the Comelec.

d. Procedure for Registration

i. File with the COMELEC not later than 90 days before the
election a petition verified by its president or secretary stating its desire
to participate in the party-list system as a national, regional or sectoral
party or organization or a coalition of such parties or organizations
attaching thereto its constitution, by- laws, platform or program of
government, list of officers, coalition agreement and other relevant
information as the COMELEC may require.

ii. COMELEC shall publish the petition in at least 2 national

newspapers of general circulation

iii. COMELEC shall, after due notice and hearing, resolve the
petition within 15 days from the date it was submitted for decision but in
no case not later than 60 days before election [Sec. 5, R.A. 7941]

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 e. Who May Not be Registered

a. Religious denominations and sects

b. Those which seek to achieve their goals through violence or
unlawful means
c. Those which refuse to uphold and adhere to the Constitution
d. Those supported by foreign governments [Art. IX-C, Sec. 2 (5),
Constitution]

e. Grounds for refusal and/or cancellation of registration

The COMELEC may, motu propio or upon verified complaint of any

interested party, refuse or cancel, after due notice and hearing, the registration of
any national, regional or sectoral party, organization or coalition on any of the
following grounds:

1. Religious sect or denomination, organization or association, organized

for religious purposes
2. Advocates violence or unlawful means to seek its goal
3. iForeign party or organization
4. Receives 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. Violates or fails to comply with laws, rules or regulations relating to
elections
6. Declares untruthful statements in its petition
7. Ceased to exist for at least 1 year
8. Fails to participate in the last 2 preceding elections or
9. Fails to obtain at least 2% of the votes cast under the party-list system
in the 2 preceding elections for the constituency in which it has
registered [Sec. 6, R.A. 7941]

f. Registration and accreditation are two separate matters that are

substantially distinct from each other. The first is the act that bestows juridical
personality for purposes of the election laws, while the second relates to the
privileged participation (e.g. dominant majority party; dominant minority party)
that the election laws grant to qualified registered parties. The registration of
political parties and their accreditation as dominant parties and the benefits this
recognition provides, constitute distinct advantages to any party and its
candidates. To the public, they are evidence of equitable party representation at
the scene of the electoral action, and translate in no small measure to transparency
and to the election’s credibility. (Liberal Party vs. Comelec, 620 SCRA 313).

g. After the registration of a political party and subsequent

recognition by the Comelec, the political party can conduct a political convention
or meeting for the nomination or election its official candidates, which shall be
held 165 days before election for President, Vice President and Senators, and 75

154
days for members of House of Representatives and provincial, city or municipal
officials.

h. While the registration of political parties is a special proceeding

clearly assigned to a Division for handling under the Commission on Elections
(COMELEC) Rules, no similar clear-cut is available for a petition for accreditation
as a dominant party; Under the circumstances of the present case where the
registration was handled at the en banc, action at the Commission on Elections
(COMELEC) ended upon the en banc’s issuance of the assailed Resolution; under
Rule 13, Section 1(d) of the COMELEC Rules, a motion for reconsideration of an en
banc ruling is a prohibited pleading, except in election offense cases.

i. Damasen vs. Tumamao (2010) - It is well-settled that the

discretion of accepting members to a political party is a right and a privilege, a
purely internal matter, which this Court cannot meddle in.

j. Doctrines in Atong Paglaum vs. Comelec (2013)

➢ Three different groups may participate in the party-list system: (1)

national parties or organizations, (2) regional parties or organizations, and
(3) sectoral parties or organizations.

➢ National parties or organizations and regional parties or organizations do

not need to organize along sectoral lines and do not need to represent any
"marginalized and underrepresented" sector.

➢ Political parties can participate in party-list elections provided they

register under the party-list system and do not field candidates in
legislative district elections. A political party, whether major or not, that
fields candidates in legislative district elections can participate in party-list
elections only through its sectoral wing that can separately register under
the party-list system. The sectoral wing is by itself an independent sectoral
party, and is linked to a political party through a coalition.

➢ Sectoral parties or organizations may either be "marginalized and

underrepresented" or lacking in "well-defined political constituencies." It
is enough that their principal advocacy pertains to the special interest and
concerns of their sector. The sectors that are "marginalized and
underrepresented" include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, and overseas
workers. The sectors that lack "well-defined political constituencies"
include professionals, the elderly, women, and the youth.

➢ A majority of the members of sectoral parties or organizations that

represent the "marginalized and underrepresented" must belong to the
"marginalized and underrepresented" sector they represent. Similarly, a
majority of the members of sectoral parties or organizations that lack
"well-defined political constituencies" must belong to the sector they

155
 represent. The nominees of sectoral parties or organizations that represent
the "marginalized and underrepresented," or that represent those who
lack "well-defined political constituencies," either must belong to their
respective sectors, or must have a track record of advocacy for their
respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or organizations.

➢ National, regional, and sectoral parties or organizations shall not be

disqualified if some of their nominees are disqualified, provided that they
have at least one nominee who remains qualified.

k. BANAT vs. Comelec

 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.

 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.

 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 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.

 In computing the allocation of additional seats, the continued

operation of the 2% threshold for the distribution of the additional
seats as found in the second clause of Sec. 11(b) of R.A. 7941 which
provides that “those garnering more than 2% of the votes shall be
entitled to additional seats in proportion to their total number of
votes” is unconstitutional. The 2% threshold frustrates the
attainment of the permissive ceiling that 20% of the members of the
HR shall consist of party-list representatives.

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IV. COMMISSION ON AUDIT

1. Functions

a. To examine and audit all forms of government revenues;

b. To examine and audit all forms of government expenditures;
c. To settle government accounts;
d. To define the scope of techniques for its own auditing procedures;
e. To promulgate accounting and auditing rules “including those for
the prevention and disallowance of irregular unnecessary,
excessive, extravagant, or unconscionable expenditures,”;
f. To decide administrative cases involving expenditures of public
funds.

2. Public corporations may employ private auditors. The clear and

unmistakable conclusion from a reading of the entire Section 2 is that the COA's
power to examine and audit is non-exclusive. On the other hand, the COA's
authority to define the scope of its audit, promulgate auditing rules and
regulations, and disallow unnecessary expenditures is exclusive.

However, as the constitutionally mandated auditor of all government

agencies, the COA's findings and conclusions necessarily prevail over those of
private auditors, at least insofar as government agencies and officials are
concerned. (DBP vs. COA, 2002)

3. Compromise Agreement. The participation by the City in

negotiations for an amicable settlement of a pending litigation and its eventual
execution of a compromise agreement relative thereto, are indubitably within its
authority and capacity as a public corporation, and a compromise of a civil suit in
which it is involved as a party is a perfectly legitimate transaction, not only
recognized but even encouraged by law. Thus, COA committed grave abuse of
discretion when it disallowed the City’s appropriation of P30,000 made
conformably with the compromise agreement. (Osmena v. COA, 238 SCRA 463)

Salary Voucher. The duty to pass in audit a salary voucher is discretionary.

(Gonzales v. Provincial Board of Iloilo, 12 SCRA 711)

4. Power to “settle accounts”. This means the power to settle

liquidated accounts, that is, those accounts which may be adjusted simply by an
arithmetical process. It does not include the power to fix the amount of an unfixed
or undetermined debt. (Compania General de Tabacos v. French and Unison,
1919)

Unliquidated claims present a justiciable question which is beyond the

powers of the COA to adjudicate. Recovery based on quantum meruit involves a
unliquidated claim, because its settlement requires the application of judgment
and discretion and cannot be adjusted by simple arithmetical process. (F.F.
Manacop Construction Co., Inc. v. CA, 266 SCRA 235)

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 5. Decide Money Claims. The COA can decide money claims based on
law. But if a money claim is denied by a law, COA has no authority to pass judgment
on the constitutionality of the law.

6. It was held that COA may stop the payment of the price stipulated
in government contracts when found to be irregular, extravagant or
unconscionable. (Sambeli v. Province of Isabela, 210 SCRA 80)

COA Circular No 75-6, prohibiting the use of government vehicles by

officials who are provided with transportation allowance was held to be a valid
exercise of its powers under Section 2, Article IX-D of the Constitution; and the
prohibition may be made to apply to officials of the NPC.

7. The Court already ruled in several cases that a water district is a

government-owned and controlled corporation with a special charter since it is
created pursuant to a special law, PD 198. The COA has the authority to investigate
whether directors, officials or employees of GOCC receiving additional allowances
and bonuses are entitled to such benefits under applicable laws. Thus, water
districts are subject to the jurisdiction of the COA. (De Jesus v. COA, 2003)

V. OMBUDSMAN

1. The Ombudsman is a creation of the 1987 Constitution to discharge

the following powers:

a. investigate on its own, or on complaint by any person, any act or

omission of any public official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient.

i. Nota Bene: In Deloso vs. Domingo, 191 SCRA 545, it was

held that this power has been held to include the investigation and
prosecution of any crime committed by a public official regardless of
whether the acts or omissions complained of are related to, or connected
with, or arose from, the performance of his official duty.

ii. In DOJ vs. Liwag, 451 SCRA 83 (2005), it was held that
“Congress itself acknowledged the significant role played by the Office of
Ombudsman when it enacted Republic Act No. 6770. Section 15 (1) of said
law gives the Ombudsman primary jurisdiction over cases cognizable by
the Sandiganbayan and authorizes him to take over, at any stage, from any
investigatory agency, the investigation of such cases. This power to take
over a case at any time is not given to other investigative bodies. All this
means that the power of the Ombudsman to investigate cases cognizable
by the Sandiganbayan is not co-equal with other investigative bodies, such
as the DOJ. The Ombudsman can delegate the power but the delegate
cannot claim equal power. Clearly, therefore, while the DOJ has general
jurisdiction to conduct preliminary investigation of cases involving

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 violations of the Revised Penal Code, this general jurisdiction cannot
diminish the plenary power and primary jurisdiction of the Ombudsman to
investigate complaints specifically directed against public officers and
employees. The Office of the Ombudsman is a constitutional creation. In
contrast, the DOJ is an extension of the executive department, bereft of the
constitutional independence granted to the Ombudsman.”

b. direct any such official to perform or expedite any act or duty

required by law, or to stop, prevent, and correct any abuse or impropriety in the
performance of duties.

c. direct the officer concerned to take appropriate action against a

public official or employee at fault, and recommend his removal, suspension,
demotion, fine, censure, or prosecution and ensure compliance therewith.

Nota Bene: In Office of the Ombudsman v. Laja, 488 SCRA 574

(2005) it was held that "the Ombudsman's order to remove, suspend,
demote, fine, censure, or prosecute an officer or employee is not merely
advisory or recommendatory but is actually mandatory." Implementation
of the order imposing the penalty is, however, to be coursed through the
proper officer (Ombudsman vs. Madriaga, 503 SCRA 631 (2006).

d. determine the causes of inefficiency, red tape, mismanagement,

fraud, and corruption in the government and make recommendations for their
elimination and the observance of high standards of ethics and efficiency.

2. Judicial review in administrative proceedings

a. Decisions and orders of the Ombudsman in administrative

proceedings are appealable to the Court of Appeals and not to the Supreme Court.
(Fabian vs. Disierto, 295 SCRA 470). Section 27 of Republic Act No. 6770 was
struck down as unconstitutional as it increased the appellate jurisdiction of the
Supreme Court without its consent.

b. Rule 43 of the Rules of Court governs the appeals from the decisions
of the Ombudsman. A petition for review may be filed within 15 days from receipt
of the adverse decision.

c. Decision imposing a penalty of public censure or reprimand, or

suspension for 1 month or less without pay, or fine equivalent to 1 month salary
is final and unappealable under Section 27 of RA No. 6770. The Court of Appeals
has no jurisdiction to review, rectify or reverse a suspension of one month.
(Herrera vs. Bohol, 422 SCRA 282).

d. Decision exonerating a public official from administrative liability is

also final and unappealable. In Office of the Ombudsman vs. Alano, 516 SCRA 18
(2007), the decreed finality even barred the Ombudsman from reconsidering his
earlier decision exonerating a respondent after a timely motion for
reconsideration is filed by the complainant.

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 e. Decision absolving a respondent from administrative charge may be
challenged under Rule 65 of the Rules of Court.

“There was no categorical pronouncement in Francisco vesting

exclusive jurisdiction on the Supreme Court over a certiorari petition
under Rule 65 challenging a decision absolving a respondent from an
administrative charge.

Considering that a special civil action for certiorari is within the

concurrent original jurisdiction of the Supreme Court and the Court of
Appeals, such petition should be initially filed with the Court of Appeals in
observance of the doctrine of hierarchy of courts. We reiterated in Heirs
of Teofilo Gaudiano v. Benemerito, that concurrence of jurisdiction should
not to be taken to mean as granting parties seeking any of the writs an
absolute and unrestrained freedom of choice of the court to which an
application will be directed. It is an established policy that a direct
invocation of the Supreme Court's original jurisdiction to issue these writs
should be allowed only when there are special, important and compelling
reasons, clearly and specifically spelled out in the petition.” (Dagan v.
Office of the Ombudsman, G.R. No. 184083, [November 19, 2013],
721 PHIL 400-415)

3. Judicial review in penal proceedings

a. Decisions of the Ombudsman finding probable cause in preliminary

investigation involving criminal acts committed by public officials are appealable
to the Supreme Court by way of petition for certiorari under Rule 65 of the Rules
of Court. (Estrada vs. Disierto, et al. 445 SCRA 655)

b. The same remedy apples for the concerned party in finding of lack
of probable cause. (Perez vs. Ombudsman, 429 SCRA 357)

c. However, the petition before the Supreme Court must be prefaced

by filing a motion for reconsideration with the Ombudsman as a plain, speedy and
adequate remedy in the ordinary course of law. (Perez vs. Ombudsman, supra.)

d. In the absence of a clear abuse of discretion, courts will not interfere

with the discretion of the Ombudsman in finding probable cause in criminal cases
(Blanco vs. Sandiganbayan, 346 SCRA 108)

4. We rule that subjecting the Deputy Ombudsman to discipline

and removal by the President, whose own alter egos and officials in the
Executive Department are subject to the Ombudsman's disciplinary authority,
cannot but seriously place at risk the independence of the Office of the
Ombudsman itself. The Office of the Ombudsman, by express constitutional
mandate, includes its key officials, all of them tasked to support the Ombudsman
in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-
granted independence is what Section 8 (2) of RA No. 6770 exactly did. By so
doing, the law directly collided not only with the independence that the

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Constitution guarantees to the Office of the Ombudsman, but inevitably with the
principle of checks and balances that the creation of an Ombudsman office seeks
to revitalize.

What is true for the Ombudsman must be equally and necessarily true
for her Deputies who act as agents of the Ombudsman in the performance of
their duties. The Ombudsman can hardly be expected to place her complete trust
in her subordinate officials who are not as independent as she is, if only because
they are subject to pressures and controls external to her Office. This need for
complete trust is true in an ideal setting and truer still in a young democracy like
the Philippines where graft and corruption is still a major problem for the
government. For these reasons, Section 8 (2) of RA No. 6770 (providing that
the President may remove a Deputy Ombudsman) should be declared void.

We declared Section 8 (2) of RA No. 6770 unconstitutional by granting

disciplinary jurisdiction to the President over a Deputy Ombudsman, in violation
of the independence of the Office of the Ombudsman. However, by another vote of
8-7, the Court resolved to maintain the validity of Section 8 (2) of RA No. 6770
insofar as the Special Prosecutor is concerned. The Court did not consider the
Office of the Special Prosecutor to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the independence the latter enjoys
under the Constitution. (Gonzales III v. Office of the President of the Philippines,
G.R. No. 196231, 196232, [January 28, 2014])

5. The second paragraph of Section 14, RA 6770 that states that "[n]o
court shall hear any appeal or application for remedy against the decision
or findings of the Ombudsman, except the Supreme Court, on pure question
of law." Since the second paragraph of Section 14, RA 6770 limits the remedy
against "decision or findings" of the Ombudsman to a Rule 45 appeal and thus —
similar to the fourth paragraph of Section 27, RA 6770 142 — attempts to
effectively increase the Supreme Court's appellate jurisdiction without its advice
and concurrence, it is therefore concluded that the former provision is also
unconstitutional and perforce, invalid. Contrary to the Ombudsman's
posturing, Fabian should squarely apply since the above-stated Ombudsman Act
provisions are in pari materia in that they "cover the same specific or particular
subject matter," that is, the manner of judicial review over issuances of the
Ombudsman.||| (Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27,
[November 10, 2015])

6. Doctrine of condonation is invalid. To begin with, the concept of

public office is a public trust and the corollary requirement of accountability
to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability
for a misconduct committed during a prior term can be wiped off by the fact that
he was elected to a second term of office, or even another elective post. Election
is not a mode of condoning an administrative offense, and there is simply no
constitutional or statutory basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved of any administrative liability
arising from an offense done during a prior term. In this jurisdiction, liability

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arising from administrative offenses may be condoned by the President in
light of Section 19, Article VII of the 1987 Constitution which was interpreted in
Llamas v. Orbos to apply to administrative offenses (Carpio-Morales v. Court of
Appeals, G.R. Nos. 217126-27, [November 10, 2015])

NOTES IN CONSTITUTIONAL LAW

Prof. Rolando B. Faller

EXECUTIVE DEPARTMENT

I. Executive Power

1. Executive power is the power to enforce and administer the laws.

(NEA vs CA, 2002). It is vested in the President.

2. Executive power is more than the sum of specific powers

enumerated in the Constitution. It includes residual powers (powers
which are implicit in and correlative to the paramount duty residing
in the office of the President to safeguard and protect general
welfare), not specifically mentioned in the Constitution. (Marcos vs.
Manglapus).

3. Executive power of the President does not include power to dispose

State property unless authorized by law. (Laurel vs. Garcia
[Roponggi case]).

II. Immunity from suit

1. The President is immune from suits during his tenure, despite the
fact that there is no express provision in the Constitution.

2. This is based on separation of powers.

3. it is elementary that this Court assumes no jurisdiction over

petitions for declaratory relief. More importantly, the petition
amounts in effect to a suit against the incumbent President of the
Republic, President Corazon C. Aquino, and it is equally elementary
that incumbent Presidents are immune from suit or from being
brought to court during the period of their incumbency and tenure.
(Saturnino V. Bermudez, G.R. No. 76180 (Resolution), [October 24,
1986], 229 PHIL 185-190)

4. Incidentally, it is not proper to implead President Arroyo as

respondent. Settled is the doctrine that the President, during his
tenure of office or actual incumbency, may not be sued in any civil
or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of

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 the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that
he be freed from any form of harassment, hindrance or distraction
to enable him to fully attend to the performance of his official duties
and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he
remains accountable to the people 68 but he may be removed from
office only in the mode provided by law and that is by impeachment.
(David v. Macapagal-Arroyo, G.R. No. 171396, 171409, 171485,
171483, 171400, 171489, 171424, [May 3, 2006], 522 PHIL 705-854)

5. This privilege of immunity from suit, pertains to the President by

virtue of the office and may be invoked only by the holder of the
office; not by any other person in the President's behalf Thus, an
accused in a criminal case in which the President is complainant
cannot raise the presidential privilege as a defense to prevent the
case from proceeding against such accused. Moreover, there is
nothing in our laws that would prevent the President from waiving
the privilege. Thus, if so minded the President may shed the
protection afforded by the privilege and submit to the court's
jurisdiction. The choice of whether to exercise the privilege or to
waive it is solely the President's prerogative. It is a decision that
cannot be assumed and imposed by any other person. (Soliven v.
Makasiar, G.R. No. 82585, 82827, 83979 (Resolution), [November 14,
1988], 249 PHIL 394-406)

6. "When the ground for asserting privilege as to subpoenaed

materials sought for use in a criminal trial is based only on the
generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair
administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald, 116 the US Supreme Court further held that the
immunity of the President from civil damages covers only "official
acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones where it held that the
US President's immunity from suits for money damages arising out
of their official acts is inapplicable to unofficial conduct.||| (Estrada
v. Desierto, G.R. Nos. 146710-15, 146738, [March 2, 2001], 406 PHIL
1-142)

7. A non-sitting president does not enjoy immunity from suit for

criminal acts committed during his incumbency. (Estrada v.
Desierto, G.R. Nos. 146710-15, 146738, [March 2, 2001], 406 PHIL 1-
142)

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III. Executive privilege

1. Executive privilege as "the power of the Government to withhold

information from the public, the courts, and the Congress." 64
Similarly, Rozell defines it as "the right of the President and high-
level executive branch officers to withhold information from
Congress, the courts, and ultimately the public. (Senate of the Phils.
v. Ermita, G.R. No. 169777 *, 169659, 169660, 169667, 169834,
171246, [April 20, 2006], 522 PHIL 1-62)

2. Types of executive privilege

a. State secrets (regarding military, diplomatic and other security
maters)
b. Identity of government informers
c. Information related to pending investigation
d. Presidential communications
e. Deliberative process

3. In Chavez v. PCGG (1998), the Court held that this jurisdiction

recognizes the common law holding that there is a "governmental
privilege against public disclosure with respect to state secrets
regarding military, diplomatic and other national security matters."
The same case held that closed-door Cabinet meetings are also a
recognized limitation on the right to information.

4. "The expectation of a President to the confidentiality of his

conversations and correspondences, like the claim of confidentiality
of judicial deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest in
candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free
to explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express
except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution . . . (Almonte vs. Vasquez, 1995)

5. In In re: Sealed Case, 30 the U.S. Court of Appeals delved deeper. It

ruled that there are two (2) kinds of executive privilege; one is the
presidential communications privilege and, the other is the
deliberative process privilege. The former pertains to
"communications, documents or other materials that reflect
presidential decision-making and deliberations and that the
President believes should remain confidential." The latter includes
'advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies are

164
 formulated." (Neri v. Senate Committee on Accountability of
Public Officers and Investigations, G.R. No. 180643, [March 25,
2008], 572 PHIL 554-910)

6. Presidential communications privilege applies to decision-

making of the President while, the deliberative process privilege,
to decision-making of executive officials. The first is rooted in the
constitutional principle of separation of power and the President's
unique constitutional role; the second on common law privilege.
Unlike the deliberative process privilege, the presidential
communications privilege applies to documents in their entirety,
and covers final and post-decisional materials as well as pre-
deliberative ones 31 As a consequence, congressional or judicial
negation of the presidential communications privilege is always
subject to greater scrutiny than denial of the deliberative process
privilege. (Neri v. Senate Committee on Accountability of Public
Officers and Investigations, G.R. No. 180643, [March 25, 2008], 572
PHIL 554-910)

7. The elements of presidential communications privilege, to wit:

a. The protected communication must relate to a

"quintessential and non-delegable presidential power."
b. The communication must be authored or "solicited and
received" by a close advisor of the President or the President
himself. The judicial test is that an advisor must be in "operational
proximity" with the President.
c. The presidential communications privilege remains a
qualified privilege that may be overcome by a showing of adequate
need, such that the information sought "likely contains important
evidence" and by the unavailability of the information elsewhere by
an appropriate investigating authority (Neri v. Senate Committee
on Accountability of Public Officers and Investigations, G.R. No.
180643, [March 25, 2008], 572 PHIL 554-910)

8. In light of this highly exceptional nature of the privilege, the Court

finds it essential to limit to the President the power to invoke
the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case
the Executive Secretary must state that the authority is "By
order of the President," which means that he personally consulted
with her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In
other words, the President may not authorize her subordinates to
exercise such power. (Senate of the Phils. v. Ermita, G.R. No.
169777 *, 169659, 169660, 169667, 169834, 171246, [April 20, 2006],
522 PHIL 1-62)

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 9. As earlier noted, we ruled in Senate that the President may not issue
a blanket requirement of prior consent on executive officials
summoned by the legislature to attend a congressional hearing. In
doing so, the Court recognized the considerable limitations on
executive privilege, and affirmed that the privilege must be formally
invoked on specified grounds. However, the ability of the
President to prevent military officers from testifying before
Congress does not turn on executive privilege, but on the Chief
Executive's power as commander-in-chief to control the
actions and speech of members of the armed forces. The
President's prerogatives as commander-in-chief are not
hampered by the same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require
military officers to seek presidential approval before appearing
before Congress is based foremost on the notion that a contrary rule
unduly diminishes the prerogatives of the President as commander-
in-chief. Congress holds significant control over the armed forces in
matters such as budget appropriations and the approval of higher-
rank promotions, yet it is on the President that the Constitution
vests the title as commander-in-chief and all the prerogatives and
functions appertaining to the position. Again, the exigencies of
military discipline and the chain of command mandate that the
President's ability to control the individual members of the armed
forces be accorded the utmost respect. Where a military officer is
torn between obeying the President and obeying the Senate, the
Court will without hesitation affirm that the officer has to choose
the President. After all, the Constitution prescribes that it is the
President, and not the Senate, who is the commander-in-chief of the
armed forces. (Gudani v. Senga, G.R. No. 170165, [August 15, 2006],
530 PHIL 398-434)

IV. The President

1. Qualifications
a. Natural-born citizen of the Philippines
b. Registered voter
c. Able to read and write
d. 40 years of age on the day of election
e. Resident of the Philippines for at least 10 years immediately
preceding the election

f. Any conclusion on the Filipino citizenship of Lorenzo Pou could

only be drawn from the presumption that having died in 1954 at
84 years old, Lorenzo would have been born sometime in the
year 1870, when the Philippines was under Spanish rule, and
that San Carlos, Pangasinan, his place of residence upon his
death in 1954, in the absence of any other evidence, could have
well been his place of residence before death, such that Lorenzo

166
 Pou would have benefited from the "en masse Filipinization"
that the Philippine bill had effected in 1902. That citizenship (of
Lorenzo Pou), if acquired, would thereby extend to his son, Allan
F. Poe, father of respondent FPJ. The 1935 Constitution, during
which regime respondent FPJ has seen first light, confers
citizenship to all persons whose fathers are Filipino citizens
regardless of whether such children are legitimate or
illegitimate. (Tecson v. Commission on Elections, G.R. No.
161434, 161634, 161824, [March 3, 2004], 468 PHIL 421-755)

2. Election and Term

a. The President and Vice-President (who shall be elected with

and in the same manner as the President) shall be elected by direct
vote of the people for a term of 6 years, which shall begin on the
noon of June 30 next following the day of election. The regular
election for President and Vice-President shall be held on the 2nd
Monday of May. (Art. VII, Sec. 4 pars. 1 & 3)

b. The six year term for the incumbent President and Vice-
President elected in the February 7, 1986 election is, for purposes
of synchronization of elections, hereby extended to noon of June 30,
1992. The first regular elections for the President and Vice-
President under this Constitution shall be held on the 2nd Monday
of May, 1992. (Art. XVIII, Sec. 5.)

c. The President shall not be eligible for any re-election.

Furthermore, no person who has "succeeded" as President and has
served as such for more than 4 years, shall be qualified for any
election to the same office (the Presidency) at any time. (Art. VII,
Sec. 4, par. 1)

d. The person who succeeds as President and not just in an

acting capacity, could either be (i) the Vice-President, or (ii) one
who was elected President in a special election. In both cases, if he
has served for more than 4 years, he is ineligible for re-election as
President. If he served for 4 years or less, he can run for re- election,
it is submitted, since (a) the term "succeeded" encompasses election
and (b) the general rule prohibiting the President to run for re-
election refers to the President elected during the regular election.
Furthermore, it is submitted that this person may resign on the 4th
year so as to be qualified to run for President, since there is nothing
in the Constitution that prohibits this.

e. The Vice-President on the other hand, shall not serve for

more than 2 successive terms. And for this purpose, a voluntary (but
not involuntary) renunciation of office for any length of time, shall
not be considered an interruption in the continuity of the service for
the full terms for which he was elected. (Art. VII, Sec. 4, par. 2).

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3. Canvassing

a. Joint public session of Congress serving as the Board of

Canvassers for Presidential and Vice-Presidential Elections.

b. The creation of the Joint Committee does not constitute grave

abuse and cannot be said to have deprived petitioner and the
other members of Congress of their congressional prerogatives,
because under the very Rules under attack, the decisions and
final report of the said Committee shall be subject to the
approval of the joint session of both Houses of Congress, voting
separately (See Sections 19, 23, 24 and 27 of the Rules). (Lopez
v. Senate of the Philippines, G.R. No. 163556 (Notice), [June 8,
2004])

c. The contention of the COMELEC that its tabulation of votes is not

prohibited by the Constitution and Rep. Act No. 8436 as such
tabulation is "unofficial," is puerile and totally unacceptable. If
the COMELEC is proscribed from conducting an official canvass
of the votes cast for the President and Vice-President, the
COMELEC is, with more reason, prohibited from making an
"unofficial" canvass of said votes.(Brillantes, Jr. v. Commission
on Elections, G.R. No. 163193, [June 15, 2004], 476 PHIL 294-345)

d. The legislative functions of the Twelfth Congress may have

come to a close upon the final adjournment of its regular
sessions on June 11, 2004, but this does not affect its non-
legislative functions, such as that of being the National Board of
Canvassers. In fact, the joint public session of both Houses of
Congress convened by express directive of Section 4, Article VII
of the Constitution to canvass the votes for and to proclaim the
newly elected President and Vice-President has not, and cannot,
adjourn sine die until it has accomplished its constitutionally
mandated tasks. For only when a board of canvassers has
completed its functions is it rendered functus officio. Its
membership may change, but it retains its authority as a board
until it has accomplished its purposes. (Pelayo v. Commission on
Elections, 23 SCRA 1374, 1385 [1968], citing Bautista v. Fugoso,
60 Phil. 383, 389 [1934] and Aquino v. Commission on Elections,
L-28392, January 29 1968)

Since the Twelfth Congress has not yet completed its non-
legislative duty to canvass the votes and proclaim the duly
elected President and Vice-President, its existence as the
National Board of Canvassers, as well as that of the Joint
Committee to which it referred the preliminary tasks of
authenticating and canvassing the certificates of canvass, has

168
 not become functus officio. (Pimentel vs. Congress, June 22,
2004)

4. Presidential Electoral Tribunal

a. The PET is not a separate and distinct entity from the

Supreme Court, albeit it has functions peculiar only to the
Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution,
and it faithfully complies — not unlawfully defies — the
constitutional directive. The adoption of a separate seal, as
well as the change in the nomenclature of the Chief Justice
and the Associate Justices into Chairman and Members of the
Tribunal, respectively, was designed simply to highlight the
singularity and exclusivity of the Tribunal's functions as a
special electoral court. (Macalintal v. Presidential
Electoral Tribunal, G.R. No. 191618, [November 23, 2010],
650 PHIL 326-360)

b. The constitutional function as well as the power and the duty

to be the sole judge of all contests relating to the election,
returns and qualification of the President and Vice-President
is expressly vested in the PET, in Section 4, Article VII of the
Constitution. Included therein is the duty to correct manifest
errors in the SOVs and COCs. There is no necessity, in our
view, to amend the PET Rules to perform this function within
the ambit of its constitutional function. (Legarda v. De
Castro, P.E.T. Case No. 003, [March 31, 2005], 494 PHIL 243-
250)

c. Plainly, the issue here is: May the widow

substitute/intervene for the protestant who died during the
pendency of the latter's protest case?
The fundamental rule applicable in a presidential election
protest is Rule 14 of the PET Rules. It provides,

Rule 14. Election Protest. — Only the

registered candidate for President or for Vice-
President of the Philippines who received the
second or third highest number of votes may
contest the election of the President or the
Vice-President, as the case may be, by filing a
verified petition with the Clerk of the
Presidential Electoral Tribunal within thirty
(30) days after the proclamation of the
winner.

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 Pursuant to this rule, only two persons, the 2nd and 3rd
placers, may contest the election. By this express
enumeration, the rule makers have in effect determined the
real parties in interest concerning an on-going election
contest. It envisioned a scenario where, if the declared
winner had not been truly voted upon by the electorate, the
candidate who received that 2nd or the 3rd highest number
of votes would be the legitimate beneficiary in a successful
election contest. (Poe v. Macapagal-Arroyo, P.E.T. Case No.
002 (Resolution), [March 29, 2005], 494 PHIL 137-149)

d. In assuming the office of Senator then, the Protestant has

effectively abandoned or withdrawn this protest, or at the
very least, in the language of Moraleja, abandoned her
"determination to protect and pursue the public interest
involved in the matter of who is the real choice of the
electorate." Such abandonment or withdrawal operates to
render moot the instant protest. Moreover, the dismissal of
this protest would serve public interest as it would dissipate
the aura of uncertainty as to the results of the 1992
presidential election, thereby enhancing the all-too crucial
political stability of the nation during this period of national
recovery.(Defensor-Santiago v. Ramos, P.E.T. Case No. 001
(Resolution), [February 13, 1996], 323 PHIL 665-723)

5. Prohibitions/Inhibitions

a. They shall not hold any other office or employment during

their tenure, unless otherwise provided by this Constitution.
See Civil Liberties Union vs. Executive Secretary.

Exceptions:

i. The President can assume a Cabinet post, (because

the departments are mere extensions of his
personality, according to the Doctrine of Qualified
Political Agency, so no objection can be validly raised
based on Art. VII, Sec. 13.)
ii. The President is the Chairman of NEDA. (Art. XII, Sec.
9)

b. They shall not practice any other profession.

c. They shall not participate in any business.
e. They shall not be financially interested in any contract with,
or in any franchise or special privilege granted.
f. May not appoint spouse or relatives by consanguinity or
affinity within the fourth civil degree as members of
Constitutional Commissions, Office of the Ombudsman,

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 Secretaries or Undersecretaries, chairmen or heads of
bureaus or offices and GOCCs.

6. Vacancy and Rules of Succession

6.1. Temporary or permanent vacancy in the Presidency before the

term

a. If the President-elect cannot assume his post at the

beginning of his term because (i) he has not qualified as yet
( e.g. he had an operation and so he could not take his oath of
office on June 30), (ii) or a President has not been "chosen"
and qualified as yet (e.g. there is a tie and Congress has not
yet broken the tie), then the Vice-President shall act as
President until the President-elect shall have qualified, or
shall have been "chosen: and qualified, as the case may be.
(Art. VII, Sec. 7, pars. 2 & 3).
b. If the President-elect (i) dies, or (ii) becomes permanently
disabled "at the beginning of the term of the President" (i.e.,
before the term), then the Vice-President elect shall become
the President. (Id., par. 4)
c. If both President and Vice-President (i) have not been
"chosen" or (ii) have not qualified, or (iii) die, or (iv) become
permanently disabled, then the President of the Senate, or in
case of his inability, the Speaker of the House, shall act as
President until a President or a Vice President shall have
been "chosen" and qualified. (par. 5)
d. In case both the President of the Senate and the Speaker of
the House are unable to act as President, then Congress shall
by law, provide for the "manner of selecting" the one who
will act as President until a President of Vice-President shall
have (been either "chosen" or "elected" pursuant to the
special election referred to in VII, 10, and qualified.

6.2. Permanent Vacancy in the Presidency during the term

a. In case of the President's (i) death (ii) permanent disability,

(iii) removal from office (the only way is by impeachment),
or (iv) resignation, the Vice-President shall become
President for the unexpired portion of the term.

b. In case of both the President's and Vice-President's death,

permanent disability, removal from office (by
impeachment), or resignation, then the Senate President or,
in case of his inability, the Speaker of the House, shall act as
President until the President or Vice-President shall have
been "elected" (pursuant to the special election in Art. VII,
Sec. 10) and qualified.

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6.3. In sum, we hold that the resignation of the petitioner cannot
be doubted. It was confirmed by his leaving Malacañang. In
the press release containing his final statement, (1) he
acknowledged the oath-taking of the respondent as President
of the Republic albeit with reservation about its legality; (2)
he emphasized he was leaving the Palace, the seat of the
presidency, for the sake of peace and in order to begin the
healing process of our nation. He did not say he was leaving
the Palace due to any kind of inability and that he was going
to re-assume the presidency as soon as the disability
disappears; (3) he expressed his gratitude to the people for
the opportunity to serve them. Without doubt, he was
referring to the past opportunity given him to serve the
people as President; (4) he assured that he will not shirk
from any future challenge that may come ahead in the same
service of our country. Petitioner's reference is to a future
challenge after occupying the office of the president which he
has given up, and (5) he called on this supporters to join him
in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not
give up the presidency. The press release was petitioner's
valedictory, his final act of farewell. His presidency is now in
the past tense.(Estrada v. Desierto, G.R. Nos. 146710-15,
146738, [March 2, 2001], 406 PHIL 1-142)

6.4. Comparisons and distinctions between the two vacancies:

a. The incumbent President never holds-over the

Presidency in any case.

b. The vacancy must occur in the offices of both the

President and Vice-President in order for the Senate
President, or the Speaker, or, in their inability, the one
provided to succeed according to the Law of
Succession passed by the Congress, to succeed as
Acting President until the qualification of the
President.

c. The Law on Succession must be passed by the

Congress in both cases in the event that the President,
Vice-President, Senate President and the Speaker are
all unable to act as President. But in the case of a
vacancy occurring before the term, the law provides
only for the "manner of selecting" the Acting
President, while in the case of a vacancy occurring
during the term, it provides for "the person" who

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 shall act as President. In both cases, the stint of the
Acting President is temporary.

d. When the vacancy comes before the term, the

Constitution talks of the successor acting as President
until a President has been "chosen" and "qualified";
when it comes during, it talks of "elected" and
qualified. The reason is that before the term, the
vacancy in the Presidency need not be filled up by
election, since it may be filled up by a vote of Congress
in case of a tie (Art. VII, Sec. 4, par. 5); but during the
term, the only way to fill up the vacancy is by special
election.

e. A special election in both cases is held, pursuant to

Art. VII, Sec. 10, only when both offices of President
and Vice-President are vacant. However, if the
vacancy occurs before the term, the grounds are
limited to 2 (death and permanent disability or both),
while if the vacancy occurs during the term, the
grounds are 4 (death, permanent disability, removal,
and resignation).

f. The vacancy that occurs before the term of office may

be temporary or permanent; the vacancy that occurs
during the term of office can only be a permanent one.
Thus, a different set of rules applies, to be discussed
next following, in case of the temporary inability of
the President during the term of office.

6.5. Temporary Vacancy in the Presidency during the term (Art.

VI, Sec. 11, supra)

a. A vacancy in the Presidency arising from his disability

can occur in any of the following ways:

i. A written declaration by the President

ii. Written declaration by the Cabinet
iii. Finding by Congress by 2/3 vote that the
President is disabled.

In all these cases, the Vice-President temporarily acts

as the President.

b. Voluntary declaration of inability by President

i. When the President transmits to the Senate President

and the Speaker his written declaration that he is
unable to discharge the powers and duties of his

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 office, such powers and duties shall be discharged by
the Vice-President as Acting President.
ii. The Vice-President shall so act until the President
transmits to the Senate President and the Speaker a
written declaration that he is no longer unable to
discharge his office.

c. Contested inability of the President

i. When majority of all the members of the Cabinet

transmit to the Senate President and Speaker their
written declaration that the President is unable to
discharge his office, then the Vice-President shall
immediately assume the Presidency in an acting
capacity.
ii. The President can contest this by sending his own
written declaration to the Senate President and
Speaker, that no inability exists. Upon such
transmittal, the President shall automatically assume
his office.
iii. Should the majority of the Cabinet insist on their
original stand by transmitting a second written
declaration of the President's inability within 5 days
from resumption of office of the President, then
Congress shall step in.
iv. Upon receipt of this second declaration by the
Cabinet, Congress shall convene, if it is not in session,
within 48 hours, without need of call, in accordance
with its rules. (If it is already in session, it must meet
right away, as glimpsed from the fact that they only
have 10 days to
decide, whereas if it is not in session, it must convene
in 2 days and decide before the 12th day.)
v. Congress shall determine the President's inability
within 10 days after receipt of the second written
declaration by the Cabinet if it is in session, or within
12 days after it is required to assemble by its
respective presiding officer if it is not in session.
vi. If the President, by a 2/3 vote of both houses voting
separately, determined to be
"unable" to discharge his office, then the Vice-
President shall act as President. If less than 2/3
find him unable, then the President shall continue
exercising the powers and duties of his office.

6.6. Clearly, the Court cannot pass upon petitioner's claim of

inability to discharge the powers and duties of the
presidency. The question is political in nature and addressed
solely to Congress by constitutional fiat. It is a political issue

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 which cannot be decided by this Court without transgressing
the principle of separation of powers. (Estrada v. Desierto,
G.R. Nos. 146710-15, 146738, [March 2, 2001], 406 PHIL 1-
142)

V. Power of Appointment

1. Nature

a. Appointment involves the exercise of discretion, which

because of its nature cannot be delegated. (Binamira v.
Garrucho, Jr., G.R. No. 92008, [July 30, 1990], 266 PHIL 166-
173)
b. Hence, when Congress clothes the President with the power
to appoint an officer, it (Congress) cannot at the same time
limit the choice of the President to only one candidate. Once
the power of appointment is conferred on the President,
such conferment necessarily carries the discretion of whom
to appoint. Even on the pretext of prescribing the
qualifications of the officer, Congress may not abuse such
power as to divest the appointing authority, directly or
indirectly, of his discretion to pick his own choice.
Consequently, when the qualifications prescribed by
Congress can only be met by one individual, such enactment
effectively eliminates the discretion of the appointing power
to choose and constitutes an irregular restriction on the
power of appointment.(Flores v. Drilon, G.R. No. 104732,
[June 22, 1993])
c. It is the considered view of the Court, given the above
disquisition, that the phrase "upon recommendation of the
Secretary," found in Section 9, Chapter II, Title III, Book IV, of
the Revised Administrative Code, should be interpreted, as it is
normally so understood, to be a mere advise, exhortation or
indorsement, which is essentially persuasive in character and
not binding or obligatory upon the party to whom it is made.
22 The recommendation is here nothing really more than
advisory in nature. 23 The President, being the head of the
Executive Department, could very well disregard or do away
with the action of the departments, bureaus or offices even
in the exercise of discretionary authority, and in so opting,
he cannot be said as having acted beyond the scope of his
authority. (Bermudez v. Torres, G.R. No. 131429, [August 4,
1999], 370 PHIL 769-780)

2. Classification of appointments

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a. Permanent – those extended to persons possessing
eligibility and are thus protected by the constitutional
guarantee of security of tenure.
b. Temporary – given to persons without such eligibility,
revocable at will and without the necessity of a just cause,
and may be replaced at any time.
c. Regular – one made by the President while Congress is in
session; takes effect only after confirmation by the
Commission on Appointments, and once approved,
continues until the end of the term of the appointee.
d. Ad interim – one made by the President while Congress in not
in session; takes effect immediately, but ceases to be valid if
disapproved by the Commission on Appointments or upon
the next adjournment of Congress.

Note: Ad interim appointment is a permanent appointment

because it takes effect immediately and can no longer be
withdrawn by the President once the appointee qualified
into office. The fact that it is subject to confirmation does not
alter its permanent character.

An ad interim appointee disapproved by the Commission on

Appointments can no longer be extended a new
appointment. The disapproval is a final decision of the
Commission on Appointments in the exercise of its checking
power on the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal by the
Commission on Appointments to give its consent after
deliberating on the qualifications of the appointee. Since the
Constitution does not provide for any appeal from such
decision, the disapproval is final and binding on the
appointee as well as on the appointing power. In this
instance, the President can no longer renew the appointment
not because of the constitutional prohibition on
reappointment, but because of a final decision by the
Commission on Appointments to withhold its consent to the
appointment.

An ad interim appointment that is by-passed because of lack

of time or failure of the Commission on Appointments to
organize is another matter. A by-passed appointment is one
that has not been finally acted upon on the merits by the
Commission on Appointments at the close of the session of
Congress. There is no final decision by the Commission on
Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent such
decision, the President is free to renew the ad interim
appointment of a by-passed appointee (Matibag v.
Benipayo, G.R. No. 149036, [April 2, 2002], 429 PHIL 554-607)

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 Note: Appointment in Acting Capacity - 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 ego
of the President, such as the office of a department secretary,
the President must necessarily appoint an alter ego of 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. (Pimentel, Jr. v. Ermita, G.R. No. 164978, [October
13, 2005], 509 PHIL 567-580)

3. Officials to be appointed by the President

a. Those officials whose appointments are vested in him by the

Constitution (Sec. 16, par. 1, Art. VII)

i. Heads of executive departments

ii. Ambassadors, other public ministers and consuls
iii. Officers of the AFO from the rank of colonel or naval
captain
iv. Chairman and members of constitutional
commissions
v. Members of the Judicial and Bar Council
vi. Sectoral representatives (Sec. 7, Art. 18)
vii. The Ombudsman and his Deputies
viii. Supreme Court Justices and justices/judges of lower
courts

b. Those whom he may be authorized by law

c. Any other officers of the government whose appointments
are not otherwise provided by law.

3.1. Appointments requiring confirmation by the CA

i. Heads of executive departments

ii. Ambassadors, other public ministers and consuls
iii. Officers of the AFO from the rank of colonel or naval
captain
iv. Chairman and members of constitutional
commissions

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 v. Members of the Judicial and Bar Council
vi. Sectoral representatives (Sec. 7, Art. 18) (Quintos-
Deles vs. Commission on Appointments)

3.2. From the rulings in Sarmiento III v. Mison, 156 S 549),

Bautista v. Salonga, 172 S 160, and Deles v. Constitutional
Commission, 177 S 259, these doctrines are deducible:

i. Confirmation by the CA is required only for

presidential appointees as mentioned in the first
sentence of Sec. 16, Art. VII, including, those officers
whose appointments are expressly vested by the
Constitution itself in the president (like sectoral
representatives to Congress and members of the
constitutional commissions of Audit, Civil Service and
Election).

ii. Confirmation is not required when the President

appoints other government officers whose
appointments are not otherwise provided for by law
or those officers whom he may be authorized by law
to appoint (like the Chairman and Members of the
Com. on Human Rights). Also, as observed in
Sarmiento v. Mison, when Congress creates inferior
offices but omits to provide for appointment
thereto, or provides in an unconstitutional manner
for such appointments, the officers are considered as
among those whose appointments are not otherwise
provided for by law.

3.3 Section 16, Article VII of the 1987 Constitution authorizes

Congress to vest "in the heads of departments, agencies,
commissions, or boards" the power to appoint lower-ranked
officers. Section 16, 3rd sentence, provides:

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. (Emphasis supplied)

In a department in the Executive branch, the head is the

Secretary. The law may not authorize the Undersecretary,
acting as such Undersecretary, to appoint lower-ranked
officers in the Executive department. In an agency, the power
is vested in the head of the agency for it would be
preposterous to vest it in the agency itself. In a commission,
the head is the chairperson of the commission. In a board,
the head is also the chairperson of the board. In the last three

178
 situations, the law may not also authorize officers other than
the heads of the agency, commission, or board to appoint
lower-ranked officers. (Rufino v. Endriga, G.R. No. 139554,
139565, [July 21, 2006], 528 PHIL 473-548)

4. Limitations on the President’s Appointing Power

a. May not appoint spouse or relatives by consanguinity or

affinity within the fourth civil degree as members of
Constitutional Commissions, Office of the Ombudsman,
Secretaries or Undersecretaries, chairmen or heads of
bureaus or offices and GOCCs.
b. Appointments extended by an Acting President shall remain
effective unless revoked by the elected President within 90
days from the assumption of office. (Sec. 14, Art. VII)
c. Prohibition to appoint within two (2) months immediately
before the next presidential elections and up to the end of his
term. (Sec. 15, Art. VII).

Note: Midnight appointment ban does not apply to the

judiciary.

Given the background and rationale for the prohibition in

Section 15, Article VII, we have no doubt that the Constitutional
Commission confined the prohibition to appointments made in the
Executive Department. The framers did not need to extend the
prohibition to appointments in the Judiciary, because their
establishment of the JBC and their subjecting the nomination
and screening of candidates for judicial positions to the
unhurried and deliberate prior process of the JBC ensured that
there would no longer be midnight appointments to the
Judiciary. If midnight appointments in the mold of Aytona were
made in haste and with irregularities, or made by an outgoing Chief
Executive in the last days of his administration out of a desire to
subvert the policies of the incoming President or for partisanship,
77 the appointments to the Judiciary made after the establishment
of the JBC would not be suffering from such defects because of the
JBC's prior processing of candidates. Indeed, it is axiomatic in
statutory construction that the ascertainment of the purpose of the
enactment is a step in the process of ascertaining the intent or
meaning of the enactment, because the reason for the enactment
must necessarily shed considerable light on "the law of the statute,"
i.e., the intent; hence, the enactment should be construed with
reference to its intended scope and purpose, and the court should
seek to carry out this purpose rather than to defeat it (De Castro v.
Judicial and Bar Council, G.R. No. 191002, 191032, 191057, 10-2-5-
SC, 191149, 191342, 191420, [March 17, 2010], 629 PHIL 629-779)

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 5. Power of Removal

a. The power to appoint implies the power of removal.

b. However, the President cannot remove officials
appointed by him where the Constitution prescribes
certain methods for separation of such officers from
public service, i.e., impeachable officers, disciplinary
authority of the Supreme Court over justices and judges.
c. Members of the career service who are appointed by the
President may be directly disciplined by him, provided
that the same is for cause and in accordance with the
procedure prescribed by law. (Villaluz vs. Zaldivar)

VI. Power of Control

1. Control is the power to substitute one's own judgment in that of a

subordinate. It includes the authority to order the doing of an act by
a subordinate or to undo such act or to assume a power directly
vested in him by law. The power of control necessarily includes the
power of supervision.

“Supervision” on the other hand, means overseeing or the power or

authority of an officer to see that subordinate officer performs their
duties.

2. The President exercises “control” over all executive departments,

bureaus, and offices and GOCCs. He exercises “general supervision”
over local government units (Sec. 4, Art. X) and autonomous regions
(Sec. 16, Art. X).

3. Power to reorganize the executive department

Section 31 of Executive Order No. 292 (E.O. 292), otherwise known

as the Administrative Code of 1987, vests in the President the
continuing authority to reorganize the offices under him in order to
achieve simplicity, economy and efficiency.

By reorganization, the President is given the power to transfer

functions from one office to another with the executive department,
the power to merge offices within the Office of the President, and
the power to abolish and create new offices within his Office.

However, the President's power to reorganize the Office of the

President under Section 31 (2) and (3) of EO 292 should be
distinguished from his power to reorganize the Office of the
President Proper. Under Section 31 (1) of EO 292, the President can
reorganize the Office of the President Proper by abolishing,
consolidating or merging units, or by transferring functions from
one unit to another. In contrast, under Section 31 (2) and (3) of EO

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 292, the President's power to reorganize offices outside the Office
of the President Proper but still within the Office of the President is
limited to merely transferring functions or agencies from the Office
of the President to Departments or Agencies, and vice versa.
(Pichay vs. DESLA, July 24, 2012)

4. Doctrine of qualified political agency

a. Under the qualified political agency doctrine, the different

executive departments are mere adjuncts of the President.
The secretaries are the alter ego of the President, men of his
bosom confidence whom he designated to assist him in his
otherwise physically impossible multifarious functions, the
extension of the President in the particular field in which
they act. Their acts are presumptively acts of the "President,
until countermanded or reprobated by him.

The President can substitute his will over those of the

secretaries, and they cannot complain.

b. Qualified political agency does not apply if the President is

required by law or by the Constitution to act personally, e.g.,
pardoning power.

5. Faithful execution clause

a. The President's power to conduct investigations to ensure

that laws are faithfully executed is well recognized. It flows
from the faithful-execution clause of the Constitution under
Article VII, Section 17 thereof. As the Chief Executive, the
president represents the government as a whole and sees to
it that all laws are enforced by the officials and employees of
his department. He has the authority to directly assume the
functions of the executive department. (Biraogo v.
Philippine Truth Commission of 2010, G.R. No. 192935,
193036, [December 7, 2010], 651 PHIL 374-773)

VII. Military Power

1. Military power enables the President to:

a. Command all the armed forces of the Philippines
b. Suspend the privilege of the writ of habeas corpus
c. Declare martial law

2. Limitations on Military Power

a. He may call out the armed forces to prevent or suppress lawless

violence, invasion or rebellion only.

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 b. The grounds for the suspension of the privilege of the writ of
habeas corpus and the proclamation of martial law are now
limited to invasion or rebellion.
c. The duration of such suspension or proclamation shall not
exceed 60 days, following which it shall be automatically lifted.
d. Within 48 hours after such suspension or proclamation, the
President shall personally or in writing report his action to
Congress. If not in session, Congress must convene within 24
hours.
e. Congress, by majority votes of all its members, voting jointly,
may revoke his suspension or proclamation, or extend the
suspension or proclamation.
f. The action of the President and Congress shall be subject to
review by the Supreme Court to determine the sufficiency of the
factual basis of such action.
g. Martial law does not automatically suspend the privilege of the
writ of habeas corpus or the operation of the Constitution.
h. The suspension of the writ of habeas corpus shall apply only to
persons facing charges of rebellion, or offenses inherent in or
directly connected with invasion.
i. Any person arrested for such offenses must be judicially charged
therewith within 3 days, otherwise, he shall be released.

3. Calling out power

a. Under the calling-out power, the President may summon the

armed forces to aid him in suppressing lawless violence,
invasion and rebellion. This involves ordinary police action.
But every act that goes beyond the President's calling-out power
is considered illegal or ultra vires. For this reason, a President
must be careful in the exercise of his powers. He cannot invoke
a greater power when he wishes to act under a lesser power.
There lies the wisdom of our Constitution, the greater the
power, the greater are the limitations.

Based on the above disquisition, it is clear that PP 1017 is not a

declaration of Martial Law. It is merely an exercise of
President Arroyo's calling-out power for the armed forces to
assist her in preventing or suppressing lawless violence. (David
v. Macapagal-Arroyo, G.R. No. 171396, 171409, 171485, 171483,
171400, 171489, 171424, [May 3, 2006], 522 PHIL 705-854)

4. Suspension of the privilege of writ of habeas corpus

a. A "writ of habeas corpus" is an order from the court

commanding a detaining officer to inform the court (i) if he
has the person in custody, and (ii) what his basis in detaining
that person. The "privilege of the writ" is that portion of the
writ requiring the detaining officer to show cause why he

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 should not be tested. Note that it is the privilege that is
suspended, not the writ itself.

b. Requisites:

i. There must be an invasion or rebellion, and

ii. The public safety requires the suspension. Effects of
the suspension of the privilege

c. The suspension of the privilege of the writ applies only to

persons "judicially charged" for rebellion or offenses
inherent in or directly connected with invasion (Art. VII, Sec.
18, par. 5). Such persons suspected of the above crimes can
be arrested and detained without a warrant of arrest.
"Judicially charged" as used in the Constitution is imprecise.
For if one were already judicially charged, his detention
would be legal and so he could no longer petition for habeas
corpus. Habeas corpus precisely contemplates a situation in
which a person is being detained without being charged in
court. Thus, the provision should read "one who is suspected
of complicity in" the two crimes above.

d. The effect of the suspension of the privilege, therefore, is

only to extend the periods during which he can be detained
without a warrant. Under Art. 125, as amended by EO 272,
the public officer can only detain him for 12, 18 or 36 hours
depending on the gravity of the offense of which he is
charged; within this time, he must be judicially charged,
otherwise, he must be released. When the privilege is
suspended, the period is extended to 72 hours.

What happens if he is not judicially charged nor released

after 72 hours? The public officer becomes liable under Art.
125 for "delay in the delivery of detained persons." As to the
detainee, it is submitted that he or someone else in his behalf
can file a petition for habeas corpus. For even if the
suspension has a lifetime of 60 days in general, as to that
person, the suspension only has an effectivity of 72 hours, so
that after this time, the suspension is lifted as to him.

5. Proclaim Martial Law

a. Requisites:

i. There must be an invasion or rebellion, and

ii. Public safety requires the proclamation of martial
law all over the Philippines or any part thereof.

b. Effects

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 i. The President can: (a) Legislate; (b) Order the arrest of
people who obstruct the war effort.
ii. But the following cannot be done (Art. VII, Sec. 18, par. 4):

(a) Suspend the operation of the Constitution;

(b) Supplant the functioning of the civil courts and the
legislative assemblies.
(c) Confer jurisdiction upon military courts and agencies
over civilians, where civil courts are unable to
function.

This is the "open court" doctrine which holds that

civilians cannot be tried by military courts if the civil
courts are open and functioning. But if the civil courts
are not functioning,
then civilians can be tried by the military courts.
Martial laws usually contemplates a case where the
courts are already closed and the civil institutions
have already crumbled, that is a "theater of war." If
the courts are still open, the President can just
suspend the privilege and achieve the same effect.

(d) Automatically suspend the privilege of the writ of

habeas corpus.

c. See Lansang v Garcia, 42 SCRA 446 (1971). The issue there

raised was whether in suspending the privilege of the writ in
1971, Marcos had a basis for doing so. The SC, in considering
the fact that the President based his decision on (a) the
Senate report on the condition in Central Luzon and (b) a
closed door briefing by the military showing the extent of
subversion, concluded that the President did not act
arbitrarily. The SC held unanimously that it has the authority
to inquire into the existence of the factual basis in order to
determine the constitutional sufficiency thereof. This
holding of the SC is now found in Art. VII, Sec. 18, par. 3.]

With this test and the new provisions in the 1987

Constitution, the case of Garcia-Padilla v Ponce Enrile, 121
SCRA 472 (1983), is, at last, overruled, and may it be so
always. In that case, the SC held that the President's
proclamation of martial law is beyond judicial review, and
that the citizen can only trust that the President acts in good
faith. The cases of Barcelon v Baker and Montenegro v
Castaneda, which ruled that the validity of the suspension of
the privilege was a political question, are likewise buried in
the grave of judicial history.

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 d. Lagman vs. Executive Secretary Salvador Medialdea, July
2017

i. The unique features of the third paragraph of Section 18,

Article VII clearly indicate that it should be treated as sui
generis separate and different from those enumerated in
Article VIII. Under the third paragraph of Section 18, Article VII,
a petition filed pursuant therewith will follow a different rule on
standing as any citizen may file it. Said provision of the
Constitution also limits the issue to the sufficiency of the factual
basis of the exercise by the Chief Executive of his emergency
powers. The usual period for filing pleadings in Petition for
Certiorari is likewise not applicable under the third paragraph
of Section 18, Article VII considering the limited period within
which this Court has to promulgate its decision.

A proceeding “[i]n its general acceptation, [is] the form in which

actions are to be brought and defended, the manner of
intervening in suits, of conducting them, the mode of deciding
them, of opposing judgments, and of executing.” In fine, the
phrase “in an appropriate proceeding” appearing on the third
paragraph of Section 18, Article VII refers to any action initiated
by a citizen for the purpose of questioning the sufficiency of the
factual basis of the exercise of the Chief Executive’s emergency
powers, as in these cases. It could be denominated as a
complaint, a petition, or a matter to be resolved by the Court.

ii. The Court may strike down the presidential proclamation in

an appropriate proceeding filed by any citizen on the ground
of lack of sufficient factual basis. On the other hand, Congress
may revoke the proclamation or suspension, which
revocation shall not be set aside by the President.

In reviewing the sufficiency of the factual basis of the

proclamation or suspension, the Court considers only the
information and data available to the President prior to or at
the time of the declaration; it is not allowed to “undertake an
independent investigation beyond the pleadings.” On the
other hand, Congress may take into consideration hot only
data available prior to, but likewise events supervening the
declaration. Unlike the Court which does not look into the
absolute correctness of the factual basis as will be discussed
below, Congress could probe deeper and further; it can delve
into the accuracy of the facts presented before it.

In addition, the Court’s review power is passive; it is only

initiated by the filing of a petition “in an appropriate
proceeding” by a citizen. On the other hand, Congress’
review mechanism is automatic in the sense that it may be

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 activated by Congress itself at any time after the
proclamation or suspension was made.

Thus, the power to review by the Court and the power to

revoke by Congress are not only totally different but likewise
independent from each other although concededly, they
have the same trajectory, which is, the nullification of the
presidential proclamation. Needless to say, the power of the
Court to review can be exercised independently from the
power of revocation of Congress.
iii. Considering the above discussion, the Court finds it
imperative to re-examine, reconsider, and set aside its
pronouncement in Fortun v. President Macapagal-Arroyo to
the effect that:

Consequently, although the Constitution reserves to the

Supreme Court the power to review the sufficiency of the
factual basis of the proclamation or suspension in a proper
suit, it is implicit that the Court must allow Congress to
exercise its own review powers, which is automatic rather
than initiated. Only when Congress defaults in its express
duty to defend the Constitution through such review should
the Supreme Court step in as its final rampart. The
constitutional validity of the President’s proclamation of
martial law or suspension of the writ of habeas corpus is first
a political question in the hands of Congress before it
becomes a justiciable one in the hands of the Court.

xxx
If the Congress procrastinates or altogether fails to fulfill its
duty respecting the proclamation or suspension within the
short time expected of it, then the Court can step in, hear the
petitions challenging the President’s action, and ascertain if
it has a factual basis. x x x

By the above pronouncement, the Court willingly but

unwittingly! clipped its own power and surrendered the
same to Congress as well as abdicated from its bounden duty
to review. Worse, the Court considered itself just on stand-
by, waiting and willing to act as a substitute in case Congress
“defaults.” It is an aberration, a stray declaration, which must
be rectified and set aside in this proceeding.

We, therefore, hold that the Court can simultaneously

exercise its power of review with, and independently from,
the power to revoke by Congress. Corollary, any perceived
inaction or default on the part of Congress does not deprive
or deny the Court of its power to review.

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iv. Among the three extraordinary powers, the calling out
power is the most benign and involves ordinary police action
The President may resort to this extraordinary power
whenever it becomes necessary to prevent or suppress
lawless violence, invasion, or rebellion. “[T]he power to call
is fully discretionary to the President;”the only limitations
being that he acts within permissible constitutional
boundaries or in a manner not constituting grave abuse of
discretion.In fact, “the actual use to which the President puts
the armed forces is x x x not subject to judicial review.”

The extraordinary powers of suspending the privilege of the

writ of habeas corpus and/or declaring martial law may be
exercised only when there is actual invasion or rebellion, and
public safety requires it. The 1987 Constitution imposed the
following limits in the exercise of these powers: “(1) a time
limit of sixty days; (2) review and possible revocation by
Congress; [and] (3) review and possible nullification by the
Supreme Court.”

The framers of the 1987 Constitution eliminated

insurrection, and the phrase “imminent danger thereof” as
grounds for the suspension of the privilege of the writ of
habeas corpus or declaration of martial law. They perceived
the phrase “imminent danger” to be “fraught with
possibilities of abuse;”besides, the calling out power of the
President “is sufficient for handling imminent danger.”

The powers to declare martial law and to suspend the

privilege of the writ of habeas corpus involve curtailment
and suppression of civil rights and individual freedom. Thus,
the declaration of martial law serves as a warning to citizens
that the Executive Department has called upon the military
to assist in the maintenance of law and order, and while the
emergency remains, the citizens must, under pain of arrest
and punishment, not act in a manner that will render it more
difficult to restore order and enforce the law. As such, their
exercise requires more stringent safeguards by the
Congress, and review by the Court.

v. Indeed, the 1987 Constitution gives the “President, as

Commander-in-Chief, a ‘sequence’ of ‘graduated
power[s]’. From the most to the least benign, these are:
the calling out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to
declare martial law.” It must be stressed, however, that
the graduation refers only to hierarchy based on scope
and effect. It does not in any manner refer to a sequence,
arrangement, or order which the Commander-in-Chief

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 must follow. This so-called “graduation of powers” does
not dictate or restrict the manner by which the
President decides which power to choose.

These extraordinary powers are conferred by the

Constitution with the President as Commander-in-Chief;
it therefore necessarily follows that the power and
prerogative to determine whether the situation
warrants a mere exercise of the calling out power; or
whether the situation demands suspension of the
privilege of the writ of habeas corpus; or whether it calls
for the declaration of martial law, also lies, at least
initially, with the President. The power to choose,
initially, which among these extraordinary powers to
wield in a given set of conditions is a judgment call on
the part of the President. As Commander-in-Chief, his
powers are broad enough to include his prerogative to
address exigencies or threats that endanger the
government, and the very integrity of the State.

It is thus beyond doubt that the power of judicial review does

not extend to calibrating the President’s decision pertaining
to which extraordinary power to avail given a set of facts or
conditions. To do so would be tantamount to an incursion
into the exclusive domain of the Executive and an
infringement on the prerogative that solely, at least initially,
lies with the President.

vi. The elimination by the framers of the 1987 Constitution

of the requirement of prior concurrence of the Congress
in the initial imposition of martial law or suspension of
the privilege of the writ of habeas corpus further
supports the conclusion that judicial review does not
include the calibration of the President’s decision of
which of his graduated powers will be availed of in a
given situation. Voting 28 to 12, the framers of the 1987
Constitution removed the requirement of congressional
concurrence in the first imposition of martial law and
suspension of the privilege.

The Court must similarly and necessarily refrain from

calibrating the President’s decision of which among his
extraordinary powers to avail given a certain situation
or condition.

It cannot be overemphasized that time is paramount in

situations necessitating the proclamation of martial law
or suspension of the privilege of the writ of habeas
corpus. It was precisely this time element that prompted

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 the Constitutional Commission to eliminate the
requirement of concurrence of the Congress in the
initial imposition by the President of martial law or
suspension of the privilege of the writ of habeas corpus.
Considering that the proclamation of martial law or
suspension of the privilege of the writ of habeas corpus is
now anchored on actual invasion or rebellion and when
public safety requires it, and is no longer under threat or in
imminent danger thereof, there is a necessity and urgency
for the President to act quickly to protect the country. The
Court, as Congress does, must thus accord the President the
same leeway by not wading into the realm that is reserved
exclusively by the Constitution to the Executive Department.

The recommendation of the Defense Secretary is not a

condition for the declaration of martial law or
suspension of the privilege of the writ of habeas corpus.
Even the recommendation of, or consultation with, the
Secretary of National Defense, or other high-ranking military
officials, is not a condition for the President to declare
martial law. A plain reading of Section 18, Article VII of
the Constitution shows that the President’s power to
declare martial law is not subject to any condition
except for the requirements of actual invasion or
rebellion and that public safety requires it. Besides, it
would be contrary to common sense if the decision of the
President is made dependent on the recommendation of
his mere alter ego. Rightly so, it is only on the President
and no other that the exercise of the powers of the
Commander-in-Chief under Section 18, Article VII of the
Constitution is bestowed.

VIII. Emergency Power

1. Article VI, Sec. 23: 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.

2. This grant of emergency power to the President is different from the

Commander-in-Chief clause. When the President acts under the
Commander-in-Chief clause, he acts under a constitutional grant of
military power, which may include the law-making power. But
when the President acts under the emergency power, he acts under
a Congressional delegation of law-making power.

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 3. This power is (1) for a limited period, and (2) subject to such
restrictions as Congress may provide. The power ceases (a) upon
being withdrawn by resolution of the Congress, or, if Congress fails
to adopt such resolution, (b) upon the next (voluntary)
adjournment of Congress. For the fact that Congress is able to meet
in session uninterruptedly and adjourn of its own will proves that
the emergency no longer exists is to justify the delegation.

4. Cases

a. In Araneta v Dinglasan, 84 Phil 368 (1949), the

Congress granted the President emergency powers to fix
rentals of houses. After the war, Congress held a special
session. The
SC held that the emergency power lasted only until Congress
held its regular session. The fact that Congress could now
meet meant that there was no emergency anymore that
would justify the delegation.

b. In the cases of Rodriguez v Treasurero, involving the law

made by Pres. Quirino appropriating the sum of money for
the operation of the government; Barredo v COMELEC,
involving another law made by Pres. Quirino appropriating
an amount to defray the expenses for an election, and
Guevarra v Collector of Customs, involving a regulation of
export, the SC held that the emergency power that enabled
the President to legislate ceased the moment Congress could
meet in regular session.

c. At the very least, said the SC in Rodriguez v Gella, 92 Phil

603 (1953), it should cease upon the approval of a resolution
by Congress terminating such grant. In this case, the
Congress enacted a bill precisely terminating the grant of
emergency power, but this was vetoed by the President. The
SC ruled that the vetoed bill should be deemed a resolution
that terminates the grant.

IX. Power of Executive Clemency

1. The President may grant (i) reprieves, (ii) commutations, and (iii)
pardons, and (iv) remit fines and forfeitures, after conviction by
final judgment, except: (a) In cases of impeachment, and (b)
violation of election laws, unless Comelec made a favorable
recommendation.

2. Definitions

a. Reprieve is a temporary relief from or postponement of

execution of criminal penalty or sentence or a stay of

190
 execution. It does not more than stay the execution of a
sentence extended to a prisoner to afford him an opportunity
to procure some amelioration of the sentence imposed.
(Black.) It is the withholding of a sentence for an interval of
time, a postponement of execution, a temporary suspension
of execution. (People vs. Vera, infra.)

b. Commutation is a reduction of sentence. (Black.) It is a

remission of a part of the punishment; a substitution of a less
penalty for the one originally imposed. (People vs. Vera,
infra.)

c. Pardon is a permanent cancellation of sentence. (Black) It

is an act of grace proceeding from the power entrusted with
the execution of the laws, which exempts the individual on
whom it is bestowed, from the punishment the law inflicts
for the crime he has committed. It is a remission of guilt, a
forgiveness of the offense. (People v Vera, infra.)

Kinds of Pardon

i. An absolute pardon is one extended w/o any strings

attached.
ii. conditional pardon is one under w/c the convict is
required to comply w/ certain requirements.
iii. A plenary pardon extinguishes all the penalties
imposed upon the offender, including accessory
disabilities, whereas partial pardon does not.

iv. Where the pardon is conditional, the offender has the

right to reject the same since he may feel that the
condition imposed is more onerous than the penalty
sought to be remitted. But in the case of an absolute
pardon, the pardonee has no option at all and must
accept it whether he likes it or not. In this sense, an
absolute pardon is similar to commutation, w/c is
also not subject to acceptance by the offender.

d. Amnesty is a sovereign act of oblivion for past acts, granted

by government generally to a class of persons who have been
guilty usually of political offenses (treason, sedition,
rebellion), and who are subject to trial but have not yet been
convicted, and often conditioned upon their return to
bedience and duty within a prescribed time. (Black; Brown v
Walker, 161 US 602).

e. Probation is a disposition under which a defendant after

conviction and sentence is released subject to conditions

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 imposed by the court and to the supervision of a probation
officer. [Sec. 3 (a), PD 968.]

f. Parole is the suspension of the sentence of a convict granted

by a Parole Board after serving the minimum term of the
indeterminate sentence penalty, without granting a pardon,
prescribing the terms upon which the sentence shall be
suspended.

3. Under the present Constitution, "a pardon, being a presidential

prerogative, should not be circumscribed by legislative action."
Thus, it is unmistakably the long-standing position of this Court that
the exercise of the pardoning power is discretionary in the
President and may not be interfered with by Congress or the Court,
except only when it exceeds the limits provided for by the
Constitution

For this reason, Articles 36 and 41 of the Revised Penal Code should
be construed in a way that will give full effect to the executive
clemency granted by the President, instead of indulging in an overly
strict interpretation that may serve to impair or diminish the import
of the pardon which emanated from the Office of the President and
duly signed by the Chief Executive himself/herself. The said codal
provisions must be construed to harmonize the power of Congress
to define crimes and prescribe the penalties for such crimes and the
power of the President to grant executive clemency. All that the said
provisions impart is that the pardon of the principal penalty does
not carry with it the remission of the accessory penalties unless the
President expressly includes said accessory penalties in the pardon.
It still recognizes the Presidential prerogative to grant executive
clemency and, specifically, to decide to pardon the principal penalty
while excluding its accessory penalties or to pardon both. Thus,
Articles 36 and 41 only clarify the effect of the pardon so decided
upon by the President on the penalties imposed in accordance with
law.(Risos-Vidal v. Commission on Elections, G.R. No. 206666,
[January 21, 2015])

4. Even if the offender be pardoned, as to the principal penalty, the

accessory penalties remain unless the same have been expressly remitted
by the pardon. ||| (Monsanto v. Factoran, Jr., G.R. No. 78239,
[February 9, 1989], 252 PHIL 192-210)

5. Pardon does not ipso facto restore a convicted felon to public office
necessarily relinquished or forfeited by reason of the conviction
although such pardon undoubtedly restores his eligibility for
appointment to that office. A pardon, albeit full and plenary, cannot
preclude the appointing power from refusing appointment to
anyone deemed to be of bad character, a poor moral risk, or who is

192
 unsuitable by reason of the pardoned conviction. (Monsanto v.
Factoran, Jr., G.R. No. 78239, [February 9, 1989], 252 PHIL 192-210)

6. The Constitution does not distinguish between which cases

executive clemency may be exercised by the President, with the sole
exclusion of impeachment cases. By the same token, if executive
clemency may be exercised only in criminal cases, it would indeed
be unnecessary to provide for the exclusion of impeachment cases
from the coverage of Article VII, Section 19 of the Constitution.
Following petitioner's proposed interpretation, cases of
impeachment are automatically excluded inasmuch as the same do
not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing
reason why the President cannot grant executive clemency in
administrative cases. It is Our considered view that if the President
can grant reprieves, commutations and pardons, and remit fines
and forfeitures in criminal cases, with much more reason can she
grant executive clemency in administrative cases, which are clearly
less serious than criminal offenses. (Llamas v. Orbos, G.R. No.
99031, [October 15, 1991], 279 PHIL 920-949)

7. Distinctions between Pardon and Amnesty

a. Pardon is usually granted for common crimes; amnesty, for

political crimes.
b. Pardon is granted to individuals; amnesty, to a group, class,
or community generally.
c. Pardon can only be granted after conviction; amnesty may
be granted even before trial.
d. Pardon looks forward and relieves the offender from the
consequences of an offense of which he has been convicted,
that is, it abolishes or forgives the punishment; amnesty
looks backward and abolishes and puts into oblivion the
offense itself, that is, it overlooks and obliterates the offense
with which the convict is charged that the person released
stands precisely as though he had committed no offense.
(Barrioquinto v Fernandez, infra.)
e. Pardon is a private act of the President w/c must be pleaded
and proved by the person bec. the courts do not take judicial
notice of it; amnesty is a public act of w/c the courts take
judicial notice. (Cruz, Philippine Political Law, 1991 ed.)
f. Pardon does not require the concurrence of the Congress;
amnesty requires such concurrence. (id.)

X. Borrowing Power

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 1. Does Congress have to be consulted by the President when he
contracts or guarantees foreign loans that increase the foreign
debt of the country?

a. The affirmative view cites Art. VI, Sec. 24 which holds that all
bills authorizing increase of the public debt must originate
exclusively from the House of Representatives, although the Senate
may propose or concur with amendments.

b. The negative, and stronger view, is that the President does

not need prior approval by Congress because the Constitution
places the power to check the President's power on the Monetary
Board and not on Congress. Congress may, of course, provide
guidelines for contracting or guaranteeing foreign loans, and have
these rules enforced through the Monetary Board. But that
Congress has prior approval is a totally different issue.

c. At any rate, the present power, which was first introduced in

the 1973 Constitution, was based on RA 4860 or the Foreign Loan
Act. What used to be a statutory grant of power is now a
constitutional grant which Congress cannot take away, but only
regulate.

2. The language of the Constitution is simple and clear as it is broad. It

allows the President to contract and guarantee foreign loans. It
makes no prohibition on the issuance of certain kinds of loans or
distinctions as to which kinds of debt instruments are more onerous
than others. This Court may not ascribe to the Constitution
meanings and restrictions that would unduly burden the powers of
the President. The plain, clear and unambiguous language of the
Constitution should be construed in a sense that will allow the full
exercise of the power provided therein. It would be the worst kind
of judicial legislation if the courts were to misconstrue and change
the meaning of the organic act.

The only restriction that the Constitution provides, aside from the
prior concurrence of the Monetary Board, is that the loans must be
subject to limitations provided by law. (Spouses Constantino v.
Cuisia, G.R. No. 106064, [October 13, 2005], 509 PHIL 486-530)

XI. Diplomatic Power

1. By reason of the President's unique position as head of state, he is

the logical choice as the nation's spokesman in foreign relations.
The Senate, on the other hand, is granted the right to share in the
treaty-making power of the President by concurring with him with
the right to amend.

2. Foreign Relations Powers of the President

194
 a. The power to negotiate treaties and international
agreements
b. The power to appoint ambassadors and other public
ministers
c. The power to receive ambassadors and other public
ministers accredited to the Philippines.
d. The power to deport aliens
e. The power to decide that a diplomatic officer has become
persona non grata
f. The power to recognize governments and withdraw
recognition

3. The SC in Commissioner of Customs v Eastern Sea Trading, 3

SCRA 351 (1961), said that the difference between a treaty and an
executive agreement is that a treaty is an international agreement
involving political issues or changes of national policy and those
involving international arrangements of a permanent character,
while an executive agreement is an international agreement
embodying adjustments of detail carrying out well-established
national policies and traditions, and those involving arrangements
of a more or less temporary
nature.

4. Moreover, it is inconsequential whether the United States treats the

VFA only as an executive agreement because, under international
law, an executive agreement is as binding as a treaty. To be sure, as
long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a
treaty.

A treaty, as defined by the Vienna Convention on the Law of

Treaties, is "an international instrument concluded between States
in written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments, and whatever its particular designation." There are
many other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement, compromis d' arbitrage,
concordat, convention, declaration, exchange of notes, pact, statute,
charter and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international
agreements included under the general term treaty have little or no
legal significance. Certain terms are useful, but they furnish little
more than mere description. (Bayan v. Zamora, G.R. No. 138570,
138572, 138587, 138680, 138698, [October 10, 2000], 396 PHIL 623-
691)

5. The President may enter into an executive agreement on foreign

military bases, troops, or facilities, if (a) it is not the instrument that

195
 allows the presence of foreign military bases, or (b) it merely aims
to implement an existing law or treaty.

Executive agreements may dispense with the requirement of Senate

concurrence because of the legal mandate with which they are
concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and
works of noted scholars, executive agreements merely involve
arrangements on the implementation of existing policies, rules,
laws, or agreements. They are concluded (1) to adjust the details of
a treaty; (2) pursuant to or upon confirmation by an act of the
Legislature; or (3) in the exercise of the President's independent
powers under the Constitution. The raison d'être of executive
agreements hinges on prior constitutional or legislative
authorizations. (Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444,
[January 12, 2016])

6. It should be emphasized that under our Constitution, the power to

ratify is vested in the President, subject to the concurrence of the
Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification. Hence,
it is within the authority of the President to refuse to submit a treaty
to the Senate or, having secured its consent for its ratification,
refuse to ratify it. Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that should not
be taken lightly, such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ
of mandamus. This Court has no jurisdiction over actions seeking to
enjoin the President in the performance of his official duties. The
Court, therefore, cannot issue the writ of mandamus prayed for by
the petitioners as it is beyond its jurisdiction to compel the
executive branch of the government to transmit the signed text of
Rome Statute to the Senate. (Pimentel, Jr. v. Office of the Executive
Secretary, G.R. No. 158088, [July 6, 2005], 501 PHIL 303-318)

XII. Budgetary Power

1. The budget is the plan indicating the (a) expenditures of the

government, (b) sources of financing, and (c) receipts from
revenue-raising measures. This budget is the upper limit of the
appropriations bill to be passed by Congress. Through the budget,
therefore, the President reveals the priorities of the government.
2. Congress may not increase the appropriations recommended by the
President for the operation of the government as specified in the
budget.

XIII. Informing Power

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1. Every 4th Monday of July, the President delivers the State of the
Nation Address, which contains his proposals for legislation.
Through this speech, he can influence the course of legislation that
Congress can take during the regular session.

2. Although couched in mandatory language, the first sentence of Sec.

23 does not, as a rule, impose a compellable duty on the President.
(Cruz, Philippine Political Law, p. 225, 1995 ed.)

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