Your SlideShare is downloading. ×
Manguera consti
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×

Introducing the official SlideShare app

Stunning, full-screen experience for iPhone and Android

Text the download link to your phone

Standard text messaging rates apply

Manguera consti

3,089
views

Published on


0 Comments
1 Like
Statistics
Notes
  • Be the first to comment

No Downloads
Views
Total Views
3,089
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
109
Comments
0
Likes
1
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA MANGUERA OUTLINE CONSTITUTIONAL LAW I COMPREHENSIVE VERSION organs of the state and defines the relations of the state with the inhabitants of its territory.2 PRELIMINARIES B. Subdivisions of Political Law 1. Law of public administrationI. Political Law 2. Constitutional law A. Definition of Political Law 3. Administrative law B. Subdivisions of Political Law 4. Law of public corporations3 C. Basis of Philippine Political Law C. Basis of Philippine Political LawII. Constitution A. Definition of Constitution The principles of government and political law of B. Philosophical View of the Constitution the Philippines are fundamentally derived from C. Purpose of Constitution American jurisprudence. This conditions was the D. Classifications of Constitutions inevitable outcome of the establishment of the E. Qualities of a Good Written Constitution American rule in the Philippines. When Spain ceded the Phils. to the US, the Spanish Political F. Essential Parts of a Good Written laws were automatically displaced by those of the Constitution US.4 G. Permanency and Generality of constitutions II. CONSTITUTION H. Interpretation/Construction of Constitution I. Brief Constitutional History J. The 1987 Constitution A. Definition of ConstitutionIII. Constitutional Law Comprehensive Definition: That body of rules A. Concept of Constitutional Law and maxims in accordance with which the powers B. Types of Constitutional Law of sovereignty are habitually exercised.5 (Cooley)IV. Basic Concepts American sense: A constitution is a written A. Constitutionalism instrument by which the fundamental powers of B. Philippine Constitutionalism government are established, limited, and defined C. Doctrine of Constitutional Supremacy and by which these powers are distributed among D. Republicanism several departments, for their more safe and useful E. Principle of Separation of Powers exercise, for the benefit of the body politic. (Justice F. System of Checks and Balances Miller quoted by Bernas) G. Judicial Review H. Due Process With particular reference to the Philippine Constitution: That written instrument enacted by I. POLITICAL LAW direct action of the people by which the fundamental powers of the government are established, limited and defined, and by whichA. Definition of Political Law those powers are distributed among several departments for their safe and useful exercise for Branch of public law1 which deals with the the benefit of the body politic. (Malcolm, Philippine organization and operation of the governmental Constitutional Law, p. 6)1 Public law is understood as dealing with matters affecting the state,the act of state agencies, the protection of state interests. Private law 2 Vicente Sinco, Philippine Political Law 1, 10th ed., 1954.deals with the regulation of the conduct of private individuals in their 3 Vicente Sinco, Philippine Political Law 1, 10th ed., 1954.relation with one another. 4As thus conceived public law consists of political law, criminal law Vicente Sinco, Philippine Political Law 2, 10th ed., 1954. 5and public international law. Private law includes civil and This definition is comprehensive enough to cover written andcommercial law. unwritten constitutions. (Cruz, Constitutional Law)I sweat, I bleed, I soar… 1Service, Sacrifice, Excellence
  • 2. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA In other words: It is the supreme written law of government is founded.9 (11 Am. Jur. 606 cited in the land.6 Cruz)B. Philosophical View of the Constitution Why would a society generally committed to majority rule choose to be governed by a The Constitution is a social contract. (Marcos v. document that is difficult to change? Manglapus) a) To prevent tyranny of the majority b) Society’s attempt to protect itself from Viewed in the light of the Social Contract Theories, itself. the Constitution may be considered as the Social c) Protecting long term values form short Contract itself in the sense that it is the very basis term passions.10 of the decision to constitute a civil society or State, breathing life to its juridical existence, laying down D. Constitution as a Municipal Law the framework by which it is to be governed, enumerating and limiting its powers and declaring A constitution is a municipal law. As such, it is certain fundamental rights and principles to be binding only within the territorial limits of the inviolable. sovereignty promulgating the constitution.11 The Constitution as a political document may be E. Classification considered as the concrete manifestation or A. (1) Rigid12 expression of the Social Contract or the decision to (2) Flexible abandon the ‘state of nature’ and organize and B. (1) Written13 found a civil society or State. (2) Unwritten C. (1) Evolved14 According to Dean Baustista, “the Constitution is a (2) Enacted social contract between the government and the D. (1) Normative- adjusts to norms people, the governing and the governed.”7 (ASM: I (2) Nominal –not yet fully operational don’t necessarily agree with this statement. As a (3) Semantic-perpetuation of power social contract, the Constitution, I think is a The Constitution of the Philippines is written, contract between and among the people conventional and rigid. themselves and not between the government and the people. The government is only an “effect” or F. Qualities of good written constitution consequence of the social contract of the people. In other words, the government is only a creature 1. Broad15 of the Constitution. Hence, the government cannot be a party to a contract that creates it. In the 1987 9 Philippine Constitution, it reads, “We the sovereign Filipino people…in order to build a …society and 10 Andres D. Bautista, Introduction to Constitutional Law 1, Slide 4 establish a government… ordain and promulgate June 16, 2007. this Constitution.”) 11 Bernas Commentary, p 5(2003 ed). 12 Rigid constitution is one that can be amended only by a According to Dean Bautista, “the Constitution formal and usually difficult process; while a flexible reflects majoritarian values but defends constitution is one that can be changed by ordinary minoritarian rights.”8 legislation. (Cruz, Constitutional Law p 5) 13 A written constitution is one whose precepts are embodiedC. Purpose of the Constitution in one document or set of documents; while an unwritten constitution consists of rules which have not been integrated To prescribe the permanent framework of a system into a single, concrete form but are scattered in various of government, to assign to the several sources, such as statues of a fundamental character, judicial decisions, commentaries of publicists, customs and traditions, departments their respective powers and duties, and certain common law principles. (Cruz, Constitutional Law and to establish certain first principles on which the pp 4-5) 14 An enacted or conventional constitution is enacted,6 formally struck off at a definitive time and place following a See People v. Pomar, 46 Phil 440. Bernas Commentary xxxvii (2003 conscious or deliberate effort taken by a constituent body ored). ruler; while a cumulative or evolved is the result of political7 Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3 evolution, not inaugurated at any specific time but changing byJune 16, 2007. accretion rather than by systematic method. (Cruz,8 Constitutional Law p 5) Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3 15June 16, 2007.; Majoritarianism is a traditional political philosophy Broad. Because it provides for the organization of the entirewhich asserts that a majority of the population is entitled to a certain government and covers all persons and things within the territory ofdegree of primacy in the society, and has the right to make decisions the State and also because it must be comprehensive enough tothat affect the society. provide for every contingency. (Cruz, Constitutional Law pp 5-6)I sweat, I bleed, I soar… 2Service, Sacrifice, Excellence
  • 3. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 2. Brief16 6. The 1987 Constitution 3. Definite 17 K. The 1987 ConstitutionG. Essential parts of a good written constitution The 1987 Constitution is the 4th fundamental law to 1. Constitution of government 18 govern the Philippines since it became 2. Constitution of liberty19 independent on July 4, 1946. 3. Constitution of sovereignty20 Background of the 1987 Constitution [Social and economic rights] 1. Proclamation of the Freedom Constitution a. Procalamation No. 1, February 25, 1986,H. Interpretation/Construction of the Constitution21 announcing that she (Corazon Aquino) and VP Laurel were assuming power. In Fransisco v HR, the SC made reference to the b. Executive Order No.1, (Febrauary 28, 1986) use of well-settled principles of constitutional c. Procalamation No.3, March 25, 1986, construction, namely: announced the promulgation of the 1. Verba Legis22 Provisional (Freedom) Constitution, pending 2. Ratio legis et anima23 the drafting and ratification of a new Constitution. It adopted certain provisions in 3. Ut magis valeat quam pereat24 the 1973 Constitution, contained additional articles on the executive department, onI. Permanence and Generality of constitutions government reorganization, and on existing laws. It also provided of the calling of a A constitution differs from a statute, it is intended Constitutional Commission to be composed not merely to meet existing conditions, but to of 30-50 members to draft a new govern the future. Constitution. 2. Adoption of the Constitution It has been said that the term ‘constitution’ implies a. Proclamation No. 9, creating the an instrument of a permanent nature.25 Constitutional Commission of 50 members.J. Brief Constitutional History b. Approval of the draft Constitution by the 1. Malolos Constitution Constitutional Commission on October 15, 2. The American Regime and the Organic Acts 1986 3. The 1935 Constitution c. Plebiscite held on February 2, 1987 4. The Japanese (Belligerent) Occupation d. Proclamation No. 58, proclaiming the 5. The 1973 Constitution ratification of the Constitution. 3. Effectivity of the 1987 Constitution: February 2,16 Brief. It must confine itself to basic principles to be implemented 1987with legislative details more adjustable to change and easier toamend. (Cruz, Constitutional Law pp 4-5) Features of 1987 Constitution2617 Definite. To prevent ambiguity in its provisions which could result 1. The new Constitution consists of 18 articlesin confusion and divisiveness among the people. (Cruz, and is excessively long compared to theConstitutional Law pp 4-5) 1935 and 1973 constitutions.18 Constitution of Government. The series of provisions outlining 2. The independence of the judiciary has beenthe organization of the government, enumerating its powers, laying strengthened with new provisions fordown certain rules relative to its administration and defining the appointment thereto and an increase in itselectorate. (ex. Art VI, VII, VIII and IX)19 authority, which now covers even political Constitution of Liberty. The series of proscriptions setting forth questions formerly beyond its jurisdiction.the fundamental civil and political rights of the citizens and imposing 3. The Bill of Rights of the Commonwealth andlimitations on the powers of government as a means of securing theenjoyment of those rights. (Ex. Article III) Marcos constitutions has been considerably20 Constitution of Sovereignty. The provisions pointing out the improved in the 1987 Constitution and evenmode or procedure in accordance with which formal changes in the bolstered with the creation of a Commissionfundamental law may be brought about. (Ex. Art XVII) of Human Rights.21 Antonio B. Nachura, Outline/Reviewer in Political Law (2006 ed.)22 Plain meaning rule. Whenever possible the words used in the III. CONSTITUTIONAL LAWConstitution must be given their ordinary meaning except whentechnical terms are employed.23 A. Concept of Constitutional Law Interpretation according to spirit. The words of the Constitutionshould be interpreted in accordance with the intent of the framers.24 The constitution has to be interpreted as a whole.25 26 Ruling Case Law, vol.6, p16) Cruz, Political Law.I sweat, I bleed, I soar… 3Service, Sacrifice, Excellence
  • 4. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Constitutional law is a body of rules resulting from (But see the case of Neri v. Senate Committees the interpretation by a high court of cases in which where the Court cited many American cases) the validity, in relation to the constitutional instrument, of some act of government…has been IV. BASIC CONCEPTS challenged. (Bernas Commentary xxxviii) Constitutionalism Constitutional law is a term used to designate the Philippine Constitutionalism law embodied in the constitution and the legal Doctrine of Constitutional Supremacy principles growing out of the interpretation and Republicanism application made by courts of the constitution in Principle of Separation of Powers specific cases. (Sinco, Phil. Political Law) System of Checks and Balances Judicial Review Constitutional law is the study of the maintenance Due Process of the proper balance between authority represented by the three inherent powers of the A. Constitutionalism State and liberty as guaranteed by the Bill of Rights. (Cruz, Constitutional Law) Constitutionalism refers to the position or practice that government be limited by a constitution. Constitutional law consist not only of the constitution, but also of the cases decided by the The doctrine or system of government in which the Supreme Court on constitutional grounds, i.e., governing power is limited by enforceable rules of every case where the ratio decidendi is based on a law, and concentration of power is limited by constitutional provision. (Defensor-Santiago, various checks and balances so that the basic Constitutional Law) rights of individuals and groups are protected.B. Types of Constitutional law27 B. Philippine Constitutionalism 1. English type28 2. European continental type29 Constitutionalism in the Philippines, understood in 3. American type30 the American sense, dates back to the ratification of Treaty of Paris. Then it grew from a series ofC. Weight of American Jurisprudence organic documents. These are: (1) Pres. Mc Kinleys’ Instruction to the SecondIn the case of Francisco v. HR, (2003) The Supreme Phil. Commission,Court speaking through Justice Carpio Morales opined: (2) Phil. Bill of 1902, “American jurisprudence and authorities, much (3) Phil. Autonomy Act of 1916. (Bernas, less the American Constitution, are of dubious Commentary xxxviii) application for these are no longer controlling within our jurisdiction and have only limited C. Doctrine of Constitutional Supremacy (2004 Bar persuasive merit insofar as Philippine Exam Question) constitutional law is concerned. As held in the case of Garcia vs. COMELEC, "[i]n If a law violates any norm of the constitution, that resolving constitutional disputes, [this Court] law is null and void; it has no effect. (This is an should not be beguiled by foreign overstatement, for a law held unconstitutional is jurisprudence some of which are hardly not always wholly a nullity) applicable because they have been dictated by different constitutional settings and needs." The American case of Marbury v. Madison laid Indeed, although the Philippine Constitution down the classic statement on constitutional can trace its origins to that of the United supremacy” “It is a proposition too plain to be States, their paths of development have long contested, that the Constitution controls any since diverged. In the colorful words of Father legislative act repugnant to it.” Bernas, "[w]e have cut the umbilical cord."” Constitutional supremacy produced judicial review.3127 Vicente Sinco, Philippine Political Law 67, 10th ed., 1954. D. Republicanism28 Characterized by the absence of a written constitution.29 The essence of republicanism is representation There is a written constitution which gives the court no power todeclare ineffective statutes repugnant to it. and renovation, the selection by the citizenry of a30 corps of public functionaries who derive their Legal provisions of the written constitution are given effectthrough the power of the courts to declare ineffective or void 31ordinary statutes repugnant to it. Defensor Santiago, Constitutional Law 7.I sweat, I bleed, I soar… 4Service, Sacrifice, Excellence
  • 5. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA mandate from the people and act on their behalf, 2. Existence of overlapping powers38 serving for a limited period only, after which they are replaced or retained at the option of their F. Checks and Balances principal.32 (More discussion of Republicanism under Article II) The Constitution fixes certain limits on the independence of each department. In order thatE. Principle of Separation of Powers these limits may be observed, the Constitution gives each department certain powers by which it Essence. In essence, separation of powers means may definitely restrain the other from exceeding that legislation belongs to Congress, execution to their authority. A system of checks and balances is the executive, settlement of legal controversies to thus formed.39 the judiciary. Each is prevented from invading the domain of others. (Bernas, Commentary 656, 2003 To carry out the system of checks and balances, ed.) the Constitution provides: Division and Assignment. Its starting point is the 1. The acts of the legislative department assumption of the division of the functions of the have to be presented to the executive for government into three distinct classes—the approval or disapproval. executive, the legislative and the judicial. Its 2. The executive department may veto the essence consists in the assignment of each class acts of the legislature if in its judgment of functions to one of the three organs of they are not in conformity with the government.33 Constitution or are detrimental to the interests of the people. Theory. The theory is that “a power definitely 3. The courts are authorized to determine assigned by the Constitution to one department the validity of legislative measures or can neither be surrendered nor delegated by executive acts. that department, nor vested by statute in another 4. Through its pardoning power, the department or agency.”34 executive may modify or set aside the judgments of the courts. Reason. The underlying reason of this principle is the assumption that arbitrary rule and abuse of 5. The legislature may pass laws that in authority would inevitably result from the effect amend or completely revoke concentration of the three powers of government in decisions of the courts if in its judgment the same person, body of persons or organ.35 they are not in harmony with its intention or policy which is not contrary to the More specifically, according to Justice Laurel, the Constitution.40 doctrine of separation of powers is intended to: 6. President must obtain the concurrence of 1. Secure action Congress to complete certain significant 2. To forestall overaction acts. 3. To prevent despotism 7. Money can be released from the treasury 4. To obtain efficiency36 only by authority of Congress.41 History. Separation of powers became the pith and G. Judicial Review core of the American system of government largely through the influence of the French political writer Definition. Judicial review refers to the power of Montesquieu. By the establishment of the the courts to test the validity of governmental acts American sovereignty in the Philippines, the in light of their conformity with a higher norm (e.g. principle was introduced as an inseparable feature the constitution). of the governmental system organized by the United States in this country.37 Expression of Constitutional Supremacy. Judicial review is not an assertion of superiority by Limitations on the Principle the courts over the other departments, but merely 1. System of Checks and Balances 38 The power of appointment is one of these. Although this is executive in nature, it may however be validly exercised by any of32 the three departments in selecting its own subordinates precisely to Cruz, Political Law.33 protect its independence. (Vicente Sinco, Philippine Political Law Vicente Sinco, Philippine Political Law 131, 10th ed., 1954. 136, 10th ed., 1954).34 Williams v. US, 289 US 553 (1933). 39 Vicente Sinco, Philippine Political Law 135, 10th ed., 1954.35 Vicente Sinco, Philippine Political Law 131, 10th ed., 1954. 40 Tarlac v. Gale, 26 Phil. 338 cited in Vicente Sinco, Philippine36 Pangasinan Transportaion Co. v. PSC, 40 O.G., 8th Supp. 57. Political Law 135, 10th ed., 1954.37 41 US v. Bull, 15 Phil 7, 27. Bernas, Commentary 656, 2003 ed.I sweat, I bleed, I soar… 5Service, Sacrifice, Excellence
  • 6. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA an expression of the supremacy of the Constitution.42 Constitutional supremacy produced judicial review, which in turn led to the accepted role of the Court as “the ultimate interpreter of the Constitution.”43 Judicial Review in Philippine Constitution. Unlike the US Constitution44 which does not provide for the exercise of judicial review by their Supreme Court, the Philippine Constitution expressly recognizes judicial review in Section 5 (2) (a) and (b) of Article VIII of the Constitution. (More discussion of Judicial Review under Article VIII)H. Due Process Origin: By the 39th chapter of the Magna Carta wrung by the barons from King John, the despot promised that “no man shall be taken, imprisoned or disseized or outlawed, or in any manner destroyed; nor shall we go upon him, nor send him, but by the lawful judgment of his peers or by the law of the land.” In 1335, King Edward III’s Statute 28 declared that “no man, of what state or condition whoever be, shall be put out of his lands, or tenements, nor taken, nor imprisoned, nor indicted, nor put to death, without he be brought in to answer by due process of law.” It is this immortal phrase that has resounded through the centuries as the formidable champion of life, liberty and property in all-freedom loving lands. (Cruz) Definition45: Embodiment of the sporting idea of fair play.46 It is the responsiveness to the supremacy of reason, obedience, to the dictates of justice.47 Due process is a guaranty against arbitrariness on the part of the government. Observance of both substantive and procedural rights is equally guaranteed by due process.48 (More discussion of Due Process under Article III)42 Angara v. Electoral Commission, 63 Phil 139.43 See Cooper v. Aaron, 358 US 1 (1956)44 The case of Marbury v. Madison established the doctrine ofjudicial review as a core legal principle in American constitutionalsystem: “So if a law be in opposition to the constitution; of both thelaw and the constitution apply to a particular case, so that the courtmust either decide that case conformably to the law, disregarding theconstitution; or conformably to the constitution, disregarding the law;the court must determine which of these conflicting rules governs thecase. This is the very essence of judicial duty.”45 The idea that laws and legal proceedings must be fair. Due processis best defined in one word- fairness.46 Frankfurter, Mr. Justice Holmes and the Supreme Court pp32-3347 Ermita-Malate Hotel & Motors Association v. City of Manila48 (Tupas v. CA)I sweat, I bleed, I soar… 6Service, Sacrifice, Excellence
  • 7. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA independence and democracy under the rule of law and the regime of truth, justice, freedom, love, PREAMBLE equality and peace.” I. Meaning III. Social Contract Theory II. FunctionIII. Social Contract Theory ASM: I submit that the Preamble is somehow a manifestation of the Social Contract Theory as it I. Meaning states: “We the sovereign Filipino people…in order to build a…society and establish a government… do ordain and promulgate this Preamble means “to walk before.” (Praeambulus: constitution.” Walking in front) II. Function Function Origin/Authorship Scope and Purpose A. Functions 1. It sets down the origin, scope and purpose of the Constitution.49 2. It enumerates the primary aims and expresses the aspirations of the framers in drafting the Constitution.50 3. Useful as an aid in the construction and interpretation of the text of the Constitution.51 Thus, Preamble is a source of light.52 It is not a source of rights or obligations. (Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905). B. Origin/Authorship Its origin, or authorship, is the will of the “sovereign Filipino people.” The identification of the Filipino people as the author of the constitution also calls attention to an important principle: that the document is not just the work of representatives of the people but of the people themselves who put their mark of approval by ratifying it in a plebiscite.53 C. Scope and Purpose “To build a just and humane society as to establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of 49 Bernas Primer at 1 (2006 ed.) 50 Cruz, Philippine Political Law, p. 49 (1995 ed). 51 Cruz, Philippine Political Law, p. 49 (1995 ed). 52 Bernas Primer at 1 (2006 ed.) 53 Bernas Commentary, p 4(2003 ed). I sweat, I bleed, I soar… 7 Service, Sacrifice, Excellence
  • 8. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 1. State’s sovereignty is over its: o Land territory (and airspace above it) ARTICLE I: NATIONAL TERRITORY o Internal Waters (and airspace above it and seabed under it) I. Territory o Archipelagic Waters( and airspace above it II. Archipelago and seabed under it)III. Archipelagic Principle o Territorial Sea (and airspace above it and seabed under it) I. Territory 2. The coastal state has a right against innocent passage57 in its internal waters. 3. The coastal state exercises authority over the A. What is Territory area (contiguous zone) to the extent necessary to prevent infringement of customs, fiscal, Territory is the fixed portion of the surface of the immigration or sanitation authority over its territorial earth inhabited by the people of the state.54 waters or territory and to punish such infringement. 4. The coastal state has rights over the economic Territory as an element of a state means an area resources of the sea, seabed and subsoil. over which a state has effective control.55 D. Scope of Philippine National Territory Defined in B. What does territory include? Article I, Section 1. It includes: Territory includes land, maritime areas, airspace (1) The Philippine archipelago; and outer space.56 (2) All other territories over which the Philippines has sovereignty or jurisdiction; Airspace (3) The territorial sea, seabed, subsoil, insular o Each state has exclusive jurisdiction over shelves and other submarine areas the air above its territory. corresponding to (1) and (2). Moreover, (1) o The consent for transit must be obtained and (2) consist of terrestrial, fluvial and aerial from the subject nation. domains.58 o Aircrafts not engaged in international air service, shall have the right to make flights E. Territories Covered under the Definition of Article into or in transit non-stop across its territory 1 and to make steps for non-traffic purposes 1. Those ceded to the US by virtue of the Treaty without the necessity of obtaining prior of Paris on December 10, 1898. permission and subject to the right of the State flown over to require landing. (Chicago 2. Those defined in the treaty concluded between Convention on International Civil Action) the US and Spain (Treaty of Washington) on November 7, 1990, which were not defined in Outerspace the Treaty of Paris, specifically the islands of o Sovereignty over airspace extends only until Cagayan, Sulu and Sibuto. where outerspace begins. (50-100 miles 3. Those defined in the treaty concluded on from earth) January 2, 1930, between the US and Great Britain (Treaty with Great Britain), specifically Different areas beyond the land territory the Turtle and Mangsee islands. o Territorial Seas (12 N.mi from baseline) 4. The island of Batanes, which was covered o Contiguous Zone (24 N.mi from baseline) under a general statement in the 1935 o Exclusive Economic Zone/Patrimonial Sea Constitution. (200 N.mi from baseline) 5. Those contemplated in the phrase “belonging o High seas (Waters beyond territorial sea) to the Philippines by historic right or legal title” in the 1973 Constitution.59 C. Significance of Territory E. “All other territories which the Philippines has Control over territory is of the essence of a state sovereignty and jurisdiction.” (Las Palmas case). Certain rights and authority are exercised within the state’s territory. 57 Passage that is not prejudicial to the peace, good order or 54 security of the coastal state. Cruz, Philippine Political Law, p. 16 (1995 ed). 58 55 Bernas, An Introduction to Public International Law, 97 (2002 ed). Bernas Primer at 4 (2006 ed.) 56 59 Bernas, An Introduction to Public International Law, 97 (2002 ed). Cruz, Philippine Political Law, p. 18 (1995 ed). I sweat, I bleed, I soar… 8 Service, Sacrifice, Excellence
  • 9. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA applies only to “areas which had not previously This includes any territory which presently belongs been considered as” internal waters.61 or might in the future belong to the Philippines through any of the internationally modes of D. Philippine Archipelago acquiring territory. o Batanes islands The Philippine archipelago is that body of water o Those belonging to the Philippines by historic studded with islands which is delineated in the right or legal title (Sabah, the Marianas, Treaty of Paris, modified by the Treaty of Freedomland) Washington and the Treaty of Great Britain. II. Archipelago III. Archipelagic PrincipleArchipelago Archipelagic DoctrineArchipelagic State Archipelago Doctrine of Article IArchipelagic Waters Elements of Archipelagic DoctrinePhilippine Archipelago Purpose of Archipelagic DoctrineA. Archipelago A. Archipelagic Doctrine (1989 Bar Question) Archipelago is a body of water studded with islands.60 It is the principle whereby the body of water studded with islands, or the islands surroundedB. Archipelagic State with water, is viewed as a unity of islands and waters together forming one integrated unit. For Archipelagic state means a state constituted wholly this purpose, it requires that baselines be drawn by by one or more archipelagos and may include connecting the appropriate points of the “outermost other islands. (Article 46 (a) of UNCLOS) islands to encircle the islands within the archipelago. We consider all the waters enclosedC. Archipelagic Waters by the straight baselines as internal waters.62 According to UNCLOS, Archipelagic waters refers B. Elements of Archipelagic Doctrine to areas enclosed as internal waters by using the 1. Definition of internal waters63 baseline method which had not been previously 2. The straight line method of delineating the considered as internal waters. (See Article 53 of territorial sea. UNCLOS) Straight Baseline Method- drawn connecting Article 8(2) of UNCLOS: Where the selected points on the coast without departing to establishment of a straight baseline in any appreciable extent from the general direction accordance with the method set forth in Article 7 has the effect of enclosing as internal waters of the coast. RA 3046 and RA 5446 have drawn areas which had not previously been straight baselines around the Philippines. considered as such, a right of innocent passage as provided in this Convention shall exist in (The problem with the straight baseline method is those waters. that it conflicts with the Law of the Sea because it recognizes the right of innocent passage in According to UNCLOS, in “archipelagic waters”, a archipelagic waters. That is why we made a right of innocent passage shall exist in these reservation. However, as Bernas pointed out, the waters. But, the Philippines made a reservation, reservation is ad cautelam) thus, “ The concept of archipelagic waters is similar to the concept of internal waters under the C. Purposes of Archipelagic Doctrine Constitution of the Philippines, and removes straits 1. Territorial Integrity connecting these waters with the economic zone or 2. National Security high sea from the rights of foreign vessel to transit 3. Economic reasons passage for international navigation.” Bernas: The reservation is ad cautelam. The claim 61 made in the Constitution took effect in 1973 before Bernas Commentary, p 28(2003 ed). the 1982 Law of the Sea Convention was 62 Cruz, Philippine Political Law, p. 17 (1995 ed). formulated. Article 8(2) of the Convention itself 63 Internal waters refer to “all waters landwards from the says that the new rule on archipelagic waters baseline of the territory.”60 Note: The Philippines considers all waters connecting the Bernas Primer at 4 (2006 ed.) islands as internal waters.I sweat, I bleed, I soar… 9Service, Sacrifice, Excellence
  • 10. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA It is said that the purpose of archipelagic doctrine is not part of the national territory, exclusive economic to protect the territorial integrity of the archipelago. benefit is reserved for the country within the zone. Without it, there would be “pockets of high seas” between some of our islands and islets, thus By virtue of PD 1599, the Philippine declares that it foreign vessels would be able to pass through has sovereign rights to explore, exploit, conserve these “pockets of seas” and would have no and manage the natural resources of the seabed, jurisdiction over them. subsoil, and superjacent waters. Other states are prohibited from using the zone except for navigation and overflight, laying of submarineD. Archipelago Doctrine in Article I, Section 1 cables and pipeline, and other lawful uses related(1989 Bar Question) to navigation and communication. “The waters around, between and connecting the Q: Distinguish the flag state and the flag of islands of the archipelago, regardless of their convenience. (2004 Bar Question) breadth and dimensions, form part of internal waters of the Philippines” Flag state means a ship has the nationality of the flag of the state it flies, but there must be a genuine Q: Differentiate archipelagic waters, territorial link between the state and the ship. (Article 91 of sea and internal waters. (2004 Bar Question) the Convention on the Law of the Sea) A: Flag of convenience refers to a state with which a vessel is registered for various reasons such as According to UNCLOS, Archipelagic waters refers low or non-existent taxation or low operating costs to areas enclosed as internal waters by using the although the ship has no genuine link with the baseline method which had not been previously state. (Harris, Cases and Materials on International considered as internal waters. (See Article 53 of Law, 5th ed., 1998, p. 425.) UNCLOS) 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. (Article 2, 3 of UNCLOS) Internal waters refer to “all waters landwards from the baseline of the territory.” Is from which the breadth of territorial sea is calculated. (Brownlie, Principles of PIL) No right of innocent passage for foreign vessels exist in the case of internal waters. (Harris, Cases and Material on International Law, 5th ed., 1998, p.407) Under Section 1, Article I of the 1987 Constitution, the internal waters of the Philippines consist of the waters around between and connecting the islands of the Philippine archipelago regardless of their breadth and dimensions including the waters in bays, rivers, and lakes. Q: Distinguish briefly but clearly between the contiguous zone and the exclusive economic zone. (2004 Bar Question) Contiguous zone is a zone contiguous to the territorial sea and extends up to twelve 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 its territory or territorial sea. (Article 33 of the Convention on the Law of the Sea.) The EEZ extends 200 nautical miles from the baseline. The EEZ is recognized in the UN Convention on the Law of the Sea. Although it isI sweat, I bleed, I soar… 10Service, Sacrifice, Excellence
  • 11. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA It is the statement of the basic ideological principles ARTICLE II and policies that underlie the Constitution. As such, DECLARATION OF PRINCIPLES AND the provisions shed light on the meaning of the other provisions of the Constitution and they are a STATE POLICIES guide for all departments of the government in the implementation of the Constitution.65 I. Principles and State Policies II. State as a Legal Concept C. What are Principles? What are Policies? PRINCIPLES Principles are binding rules which must be III. Republicanism (§ 1) observed in the conduct of the government.66 IV. Incorporation Clause (§2) V. Supremacy of Civilian Authority(§3) Policies are guidelines for the orientation of the state.67 VI. Defense of State (§4) VII. Peace and Order(§5) Note: The distinction between principles and VIII. Separation of Church and State (§6) polices is of little significance because not all of the STATE POLICIES six “principles” are self-executory and some of the “policies” already anchor justiciable rights.68 IX. Independent Foreign Policy(§7) o Section 5 (maintenance of peace and order… X. Freedom from Nuclear Weapons(§8) promotion of general werlfare…) is a mere XI. Just and Dynamic Social Order (§9) guideline. (Section 16 (right of the people to a XII. Promotion of Social Justice (§10) balanced and healthful ecology is right- conferring provisions. (Oposa vs. Factoran) XIII. Respect for Human Dignity(§11) XIV. Family, Rearing the Youth (§§ 12-13) Section 1. The Philippines is a XV. Women(§14) democratic and republican State. XVI. Health Sovereignty resides in the people and all government authority XVII. Balanced and healthful Ecology(§§15-16) emanates from them. XVIII. Education, Science and Technology(§17) XIX. Labor(§18) II. State as a Legal Concept XX. Economy(§19) Definition of a State XXI. Private Sector and Private Enterprise (§20) Elements of a State XXII. Comprehensive Rural Development (§21) Government Acts of State XXIII. Indigenous Cultural Communities (§22) State Immunity XXIV. Sectoral Organizations (§23) XXV. Communication and Information (§24) A. Definition of a State XXVI. Local Autonomy (§25) A state refers to a community of persons, more orXXVII. Equal Access to Opportunities (§26) less numerous, permanently occupying a definiteXXVIII. Public Service (§27) portion of territory, independent of external control, and possessing an organized government to which XXIX. Full Public Disclosure (§28) the great body of inhabitants render habitual obedience.69 I. Principles and State Policies B. Elements of a State A. Description 1. People 2. Territory This portion of the Constitution (Article II) might be 65 called the basic political creed of the nation.64 Bernas Primer at 7(2006 ed.) 66 See IV RECORD OF THE CONSTITUTIONAL COMMISSION B. Function of the “Declaration of Principles and 768 and 580. 67 State Policies” in the Constitution See IV RECORD OF THE CONSTITUTIONAL COMMISSION 768 and 580. 68 64 See Tanada v. Angara. See Vicente Sinco, Philippine Political Law Bernas Commentary, p 37(2003 ed). 69 116 (11th ed., 1962). Bernas Commentary, p 39 (2003 ed). I sweat, I bleed, I soar… 11 Service, Sacrifice, Excellence
  • 12. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA3. Sovereignty 4. External4. Government Legal Sovereignty. 1. People Cruz: Legal sovereignty is the authority which A community of persons sufficient in number and has the power to issue final commands. In our capable of maintaining the continued existence of country, the Congress is the legal sovereign.78 the community and held together by a common bond of law.70 Bernas: Legal sovereignty is the supreme power to affect legal interests either by Different Meanings of “People” as used in the legislative, executive or judicial action. This is Constitution: lodged in the people but is normally exercised 1. Inhabitants71 by state agencies79 2. Electors72 (Bernas: Political writers distinguish between 3. Citizens73 legal sovereignty and political sovereignty. The 4. Sovereign. The people organized former is described as the supreme power to make laws and the latter as the sum total of all collectively as a legal association is the influences in a state, legal or non-legal, which state which sovereignty resides.74 determine the course of law. Sinco prefers not to make the distinction and places legal 2. Territory sovereignty in the state itself considered as a Territory is the fixed portion of the surface of the juridical person.) earth inhabited by the people of the state.75 Political Sovereignty Territory as an element of a state means an area Sum total of all the influences of a State, legal over which a state has effective control.76 and non-legal which determine the course of law. 3. Sovereignty Definition Internal Sovereignty Kinds It refers to the power of the State to control its Characteristics domestic affairs. It is the supreme power over Effects of Belligerent Occupation everything within its territory. Effects of Change in Sovereignty Dominium v. Imperium External Sovereignty Jurisdiction Also known as Independence, which is “Sovereignty resides in the people” freedom from external control. It is the power of State to direct its relations with other a. Sovereignty States.80 The supreme and uncontrollable power inherent in c. Characteristics of Sovereignty a State by which that State is governed.77 It is permanent, exclusive, comprehensive, In auto-limitation terms: It is the property of a State- absolute, indivisible, inalienable, and force due to which it has the exclusive capacity of imprescriptible.81 legal determination and restriction. But wait, in the case of Tanada v. Angara, it was b. Kinds: held that sovereignty of a state cannot be 1. Legal absolute. It is subject to limitations imposed by 2. Political 3. Internal 78 Cruz, Philippine Political Law, p. 26 (1995 ed). 7970 Bernas Commentary, p 40 (2003 ed). Bernas Primer at 8 (2006 ed.); Section 1 of Article II says:71 “Sovereignty resides in the people an all government authority Article II, Section 15, 16; Article III, Section 2; Article XIII, emanates from them.” Sovereignty in this sentence therefore can beSection 1.72 understood as the source of ultimate legal authority. Since the Article VII, Section 4; Article XVI, Section 2; Article XVIII, ultimate law in the Philippine system is the constitution, sovereignty,Section 25) understood as legal sovereignty, means the power to adapt or alter a73 Article II, Section 4; Article III, Section 7. constitution. This power resides in the “people” understood as those74 who have a direct hand in the formulation, adoption, and amendment Preamble; Article II, Section 1.75 or alteration of the Constitution. (Bernas Commentary, p 55 (2003 Cruz, Philippine Political Law, p. 16 (1995 ed). ed).76 Bernas, An Introduction to Public International Law, 97 (2002 ed). 80 Cruz, Philippine Political Law, p. 26 (1995 ed).77 81 Garner cited in Cruz, Philippine Political Law, p. 26 (1995 ed). Laurel v. Misa, 77 Phil 856.I sweat, I bleed, I soar… 12Service, Sacrifice, Excellence
  • 13. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA membership in the family of nations and limitations Jurisdiction is the manifestation of sovereignty. The imposed by treaties. The Constitution did not jurisdiction of the state is understood as both its envision a hermit-type isolation of the country from authority and the sphere of the exercise of that the rest of the world. (2000 Bar Question) authority. Kinds of Jurisdiction: d. Effects of Belligerent Occupation 1. Territorial jurisdiction- authority of the state to have all persons and things within As to political laws. No change of sovereignty its territorial limits to be completely subject during a belligerent occupation, the political laws of to its control and protection.83 the occupied territory are merely suspended, subject to revival under the jus postliminium upon 2. Personal jurisdiction- authority of the the end of the occupation. state over its nationals, their persons, property, and acts whether within or Note that the rule suspending political laws affects outside its territory (e.g. Art. 15,CC) only the civilian inhabitants of the occupied 3. Extra-territorial jurisdiction- authority of territory and is not intended to bind the enemies in the State over persons, things, or acts, arms. Also, the rule does not apply to the law on outside its territorial limits by reason of treason although decidedly political in character. their effect to its territory. Examples: As to non-political laws. The non-political laws 1. Assertion of its personal jurisdiction over are deemed continued unless changed by the its nationals abroad; or the exercise of its belligerent occupant since they are intended to rights to punish certain offenses govern the relations of individuals as among committed outside its territory against its themselves and are not generally affected by national interests even if the offenders are changes in regimes of rulers. non-resident aliens; 2. By virtue of its relations with other states As for judicial decisions. As for judicial decisions or territories, as when it establishers a colonial protectorate, or a condominium, the same are valid during the occupation and even or administers a trust territory, or occupies beyond except those of a political complexion, enemy territory in the course of war; which are automatically annulled upon the 3. When the local state waives its jurisdiction restoration of the legitimate authority.82 over persons and things within its territory, as when a foreign army stationed therein e. Effects of Change in Sovereignty remains under the jurisdiction of the sending states; As to political laws. Where there is a change in 4. by the principle of extra territoriality, as illustrated by the immunities of the head of sovereignty, the political laws of the former state in a foreign country; sovereign are not merely suspended but 5. Through the enjoyment or easements or abrogated unless they are retained or re-enacted servitudes, such as the easement of by positive act of the new sovereign. innocent passage or arrival under stress; 6. The exercise of jurisdiction by the state in As to non-political laws. Non-political laws, the high seas over its vessels; over continue in operation. pirates; in the exercise of the right to visit and search; and under the doctrine of hot pursuit; f. Imperium v. Dominium 7. The exercise of limited jurisdiction over the contiguous zone and the patrimonial sea, Imperium. State’s authority to govern. Covers such to prevent infringement of its customs, activities as passing laws, governing territory, fiscal, immigration or sanitary regulations. maintaining peace and order over it, and defending against foreign invasion. This is the authority 83 possessed by the State embraced in the concept of Exempt are: sovereignty. 1. Foreign states, heads of state, diplomatic representatives, and consuls to a certain degree; 2. Foreign state property, including embassies, consulates, Dominium. Capacity of the State to own property. and public vessels engaged in non-commercial activities; Covers such rights as title to land, exploitation and 3. Acts of state; use of it, and disposition or sale of the same. 4. Foreign merchant vessels exercising the rights of innocent passage or involuntary entry, such as the arrival under g. Jurisdiction stress; 5. Foreign armies passing through or stationed in its territory with its permission; 6. Such other persons or property, including organizations like the United Nations, over which it may, by agreement,82 Cruz, Philippine Political Law, p. 28 (1995 ed waive jurisdiction.I sweat, I bleed, I soar… 13Service, Sacrifice, Excellence
  • 14. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA h. Juristic Theory of Sovereignty 3. Functions of Government (1) Governmental (Constituent)- are the The legalistic and analytical view of sovereignty compulsory functions which constitute the very considers the state as a corporate entity, a bonds of society. juridical person.84 It takes the state purely as a legal organism. It does not have anything to do at (2) Proprietary (Ministerial)—optional functions of all with its social and historical background. the government for achieving a better life for the community. (Bacani v. NACOCO) i. “Sovereignty resides in the PEOPLE” Governmental Function The “people” in the sense in which it is used here • Implementation of the land reform may not strictly be refers to the entire citizenry considered as a “constituent” in the sense of Bacani but the unit.85 compelling urgency with which the Constitution speaks of social justice does not leave any doubt that 4. Government land reform is not an optional but a compulsory Government. That institution or aggregate of function of sovereignty. (ACCFA v. CUGCO) • The functions of the Veterans Federation of the institutions by which an independent society makes Philippines fall within the category of sovereign and carries out those rules of action which are functions. (Veterans Federation of the Phils. V. Reyes necessary to enable men to live in a social state, or 483 SCRA 526) which are impose upon the people forming that • The Manila International Airport Authority is a society by those who possess the power or governmental instrumentality vested with corporate authority of prescribing them.86 powers to perform its governmental function. It performs government functions essential to theC Government operation of an international airport. (MIAA v. CA) • Housing is a governmental function since housing is 1. Government of the Republic of the considered an essential service. (PHHC v. CIR) • The NHA is tasked with implementing the Philippines governmental program of providing mass housing to The Government of the Republic of the Philippines meet the needs of Filipinos for decent housing. The is a term which refers to the corporate NHA is exempt from paying docket fees in suits in governmental entity through which the functions relation to its governmental functions. (Badillo v. of government are exercised throughout the Tayag) Philippine Islands, including, save as the contrary • The (RCA) Rice and Corn Administration is a appears from context, the various arms through government machinery to carry out declared which political authority is made effective in said government policy to stabilize the price of palay, rice, Islands, whether pertaining to the central and corn and making it within the reach of average Government or to the provincial or municipal consumers. Its activity of buying and selling corn is branches or other form of local government. only an incident to its government function. Hence, (Section 2 of the Revised Administrative Code it is exempt from posting an appeal bond. (Republic v. (1917). CFI) On the national scale, the term “government of the • The “AFP Retirement and Benefits System” is a government entity and its funds are in the nature of Philippines” refers to the three great departments. public funds (People v. Sandiganbayan) On the local level, it means the regional provincial, Proprietary Function city municipal an barangay governments. • Undertaking to supply water for a price is considered It does not include government entities which are a trade and not a governmental activity. (Spouses given a corporate personality separate and distinct Fontanilla v. Maliaman) for the government and which are governed by the corporation law. • Civil Aeronautics Administration is in charge of the administration of MIA, it is performing proprietary functions, hence it can be sued even when the claim 2. Government v. Administration is based on a quasi-delict. (CAA v. CA) Government is the institution through which the 4. Doctrine of Parens Patriae state exercises power. Administration consists of Literally, “parent of the people.” One of the the set of people currently running the institution.87 important tasks of the government is to act for the State as parens patriae, or guardian of the rights of the people.8884 Sinco, Philippine Political Law, p 18 (1954ed).85 Sinco, Philippine Political Law, p 19 (1954ed). 5. Classification of Government on the Basis of86 Legitimacy US v. Dorr, 2 Phil 332 cited in Bacani v. NACOCO, 100 Phil. 468(1956).87 88 Bernas Commentary, p 44(2003 ed). Cruz, Philippine Political Law, p. 23 (1995 ed).I sweat, I bleed, I soar… 14Service, Sacrifice, Excellence
  • 15. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 1. De Jure Government which was reduced to a British possession 2. De Facto Government in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico by De Jure Government. One established by the troops of the US.) (Co Kim Chan v. authority of the legitimate sovereign.89 Valdez , 75 Phil 113) De Facto Government. One established in Note: defiance of the legitimate sovereign.90 It actually The government under Cory Aquino and the exercises power or control without legal title.91 Freedom Constitution is a de jure government. It was established by authority of the legitimate 3 Kinds of De Facto Government: sovereign, the people. It was a revolutionary 1. The government that gets possession government established in defiance of the and control or, or usurps, by force or 1973 Constitution. (In Re Letter of Associate by the voice of majority, the rightful legal Justice Puno, 210 SCRA 589 (1992). government and maintains itself against the will of the latter. (Such as the The government under President Gloria government of England under the Macapagal Arroyo established after the ouster Commonwealth, first by Parliament and of President Estrada is de jure government.93 later by Cromwell as Protector.) 2. Established and maintained by Sinco on Revolution or Direct State Action: invading military forces. That “It sometimes happens that the people rise in established as an independent revolt against the existing administration government by the inhabitants of a [government] and through force or threats country who rise in insurrection against succeed in altering the constituted organs of the parent state (Such as the government the government. From the point of view of the of the Southern Confederacy in revolt existing constitutional plan, that act is illegal; against the Union during the war of but considered from the point of view of the secession in the United States.) sate as a distinct entity not necessarily bound 3. Government of paramount force. That to employ a particular government or which is established and maintained by administration to carry out its will, it is the military forces who invade and occupy a direct act of the state itself because it is territory of enemy in the course of war.92 successful. As such, it is legal, for whatever is (Such as the cases of Castine in Maine, attributable to the state is lawful. This is the legal and political basis of the doctrine of89 revolution.”94 Bernas Primer at 9 (2006 ed.)90 Bernas Primer at 9 (2006 ed.) 5. Presidential v. Parliamentary form of91 government (2006 Bar Exam Question) Cruz, Philippine Political Law, p. 23 (1995 ed).92 It has been held that the Second Republic of the Philippines was ade facto government of paramount force, having been established by The presidential form of government’s identifyingthe Japanese belligerent during the occupation of the Philippines in feature is what is called the “separation ofWorld War II. powers.”95The characteristics of this kind of de facto government are: 1. Its existence is maintained by active military power The essential characteristics of a parliamentary within the territories, and against the rightful authority of form of government are: an established and lawful government. 1. The members of the government or 2. During its existence, it must necessarily be obeyed in civil cabinet or the executive arm are, as a matters by private citizens who, by acts of obedience rule, simultaneously members of the rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not legislature; warranted by the laws of the rightful government. Actual 2. The government or cabinet consisting of governments of this sort are established over districts the political leaders of the majority party or differing greatly in extent and conditions. They are of a coalition who are also members of the usually administered by military authority, supported legislature, is in effect a committee of the more or less directly by military force. (Co Kim Chan v. legislature; Valdez , 75 Phil 113) 3. The government or cabinet has aBy contrast, the Supreme Court unanimously held in Lawyers pyramidal structure at the apex of which isLeague for a Better Philippines v. Corazon Aquino that “thepeople have made the judgment; they have accepted the the Prime Minister or his equivalent;government of President Corazon Aquino which is in effective 93control of the entire country so that it is not merely a de facto Bernas Primer at 9 (2006 ed.)government but in fact and law a de jure government. 94 Sinco, Philippine Political Law, p 7 (1954ed).Moreover, the community of nations has recognized the 95legitimacy of the present government.” Bernas Primer at 10 (2006 ed.)I sweat, I bleed, I soar… 15Service, Sacrifice, Excellence
  • 16. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 4. The government or cabinet remains in Republic is a representative government run by power only for so long as it enjoys the the people and for the people.100 support of the majority of the legislature; 5. Both government and legislature are Republican state is a state wherein all possessed of control devices which each government authority emanates from the people can demand of the other immediate and is exercised by representatives chosen by the political responsibility. In the hands of the people.101 legislature is the vote of non-confidence (censure) whereby government may be B. Essential Features of Republicanism ousted. In the hands of the government is the power to dissolve the legislature and The essence of republicanism is representation call for new elections.96 and renovation. The citizenry selects a corps of public functionaries who derive their mandate from Q: What constitutional forms of government the people and act on their behalf, serving for a have been experienced by the Philippines limited period only, after which they are replaced or since 1935? retained at the option of their principal.102 A: Presidential and presidential only.97 C. Manifestations of RepublicanismC. Acts of State 1. Ours is a government of laws and not of men. (Villavicencio v. Lukban, 39 Phil 778) An act of State is done by the sovereign power of a 2. Rule of Majority (Plurality in elections) country, or by its delegate, within the limits of the 3. Accountability of public officials power vested in him.98 4. Bill of Rights 5. Legislature cannot pass irrepealable laws Within particular reference to Political Law, an act 6. Separation of powers of State is an act done by the political departments of the government and not subject to judicial D. “Democratic State” review. An illustration is the decision of the President, in the exercise of his diplomatic power, In the view of the new Constitution, the Philippines to extend recognition to a newly-established foreign is not only a representative or republican state but State or government.99 also shares some aspects of direct democracy such as “initiative and referendum”. The wordD. State Immunity democratic is also a monument to the February Revolution which re-won freedom through direct “The State cannot be sued without its consent.” action of the people. (Article XVI, Section 3) E. Constitutional Authoritarianism(State immunity will be discussed under Article XVI,Section 3) Constitutional authoritarianism as understood and practiced in the Marcos regime under the 1973 PRINCIPLES Constitution, was the assumption of extraordinary powers by the President, including legislative and III. Republicanism judicial and even constituent powers.103 Section 1. The Philippines is a Q: Is constitutional authoritarianism compatible democratic and republican State. with a republican state? Sovereignty resides in the people A: Yes if the Constitution upon which the Executive and all government authority bases his assumption of power is a legitimate emanates from them. expression of the people’s will and if the Executive who assumes power received his office through a valid election by the people.104A. Republic 100 Cruz, Philippine Political Law, p. 50 (1995 ed).96 101 Bernas Primer at 11 (2006 ed.) Bernas Primer at 11 (2006 ed.)97 102 Bernas Primer at 11 (2006 ed.) Cruz, Philippine Political Law, p. 50 (1995 ed).98 103 Cruz, Philippine Political Law, p. 29 (1995 ed). Bernas Primer at 12 (2006 ed.)99 104 Cruz, Philippine Political Law, p. 29 (1995 ed). Bernas Primer at 12 (2006 ed.)I sweat, I bleed, I soar… 16Service, Sacrifice, Excellence
  • 17. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA IV. Renunciation of War/ Incorporation Clause/ Since dualism holds that international law and Policy of PEJ-FCA with All Nations municipal law belong to different spheres, international law becomes part of municipal law only if it is incorporated in to municipal law.105 Section 2. The Philippines renounces war as an instrument of 2 Doctrine of Incorporation (1997 Bar Question) national policy, adopts the Every state is, by reason of its membership in the generally accepted principles of family of nations, bound by the generally international law as part of law of accepted principles of international law, which the land and adheres to the policy are considered to be automatically part of its of peace, equality, justice, freedom, own laws. This is the doctrine of incorporation.106 cooperation, and amity with all nations. 3. International Law International LawA. Renunciation of War Traditional definition: It is a body of rules and principles of action which are binding upon civilized “The Philippines renounces war as an instrument of states in their relation to one another. national policy…” Restatement: The law which deals with the conduct (Read along Preamble, Article II Secs. 7 &8; Article of states and of international organizations and XVIII Sec. 25) with their relations inter se, as well as with some other relations with persons, natural or juridical. 1. Aggressive War The Philippines only renounces AGGRESSIVE war 4. To What Elements of International Law does as an instrument of national policy. It does not the principle of incorporation apply? renounce defensive war. Since treaties become part of Philippine law only by ratification, the principle of incorporation applies 2. Philippines Renounces Not Only War only to customary law and to treaties which As member of United Nations, the Philippines does have become part of customary law. 107 not merely renounce war but adheres to Article 2(4) of the UN charter which says: “ All Members shall 5. Effect of Incorporation Clause refrain in their international relations from the International law therefore can be used by threat or use of force against the territorial Philippine courts to settle domestic disputes in integrity or political independence of any state, or much the same way that they would use the Civil in any other manner inconsistent with Purposes of Code or the Penal Code and other laws passed by the Untied Nations.” Congress.108 3. Historical Development of the Policy C. Policy of PEJ-FCA with All Nations Condemning or Outlawing War in the “The Philippines…adheres to the policy of peace, International Scene: equality, justice, freedom, cooperation, and amity 1. Covenant of the League of Nations- with all nations.” provided conditions for the right to go to war. 2. Kellogg-Briand Pact of 1928- also known as Q: Does the affirmation of amity will all nations mean automatic diplomatic recognition of all the General Treaty for the Renunciation of nations? War, ratified by 62 states, which forbade war A: No. Amity with all nations is an ideal to be aimed as “an instrument of national policy.” at. Diplomatic recognition, however, remains a 3. Charter of the United Nations- Prohibits the matter of executive discretion.109 threat or use of force against the territorial integrity or political independence of a State. V. Supremacy of Civilian AuthorityB. Incorporation Clause Section 3. Civilian Authority is, at “The Philippines…adopts the generally accepted all times supreme over the military. principles of international law as part of law of the The Armed Forces of the land…” 105 Bernas Commentary, p 61 (2003 ed). 1. Acceptance of Dualist View 106 Cruz, Philippine Political Law, p. 55 (1995 ed). Implicit in this provision is the acceptance of the 107 Bernas Commentary, p 61 (2003 ed). dualist view of legal systems, namely that 108 Bernas Commentary, p 61 (2003 ed). domestic law is distinct from international law. 109 Bernas Primer at 13 (2006 ed.)I sweat, I bleed, I soar… 17Service, Sacrifice, Excellence
  • 18. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Philippines is the protector of the Q: Is the provision an assertion of the political people and the State. Its goal is to role of the military? secure the sovereignty of the State A: No. The phrase “protector of the people” and integrity of the national was not meant to be an assertion of the territory. political role of the military. The intent of the phrase “protector of the people” was rather toA. Civilian Authority make it as corrective to military abuses experienced during martial rule.117 That civilian authority is at all times supreme over the military is implicit in a republican system.110 Still, Q: Does this mean that the military has no it was felt advisable to expressly affirm this military role? principle in the Constitution to allay all fears of a A: Bernas: The military exercise of political military take-over of our civilian government.111 power can be justified as a last resort—when civilian authority has lost its legitimacy.118 It was also fittingly declared that the President, who (This is dangerous.) is a civilian official, shall be the commander-in-chief of all the armed forces of the Philippines.112 4 . Bar Question (2003) Q: Does this mean that civilian officials are superior Q: Is the PNP covered by the same mandate under to military officials? Article II, Section 3? A: Civilian officials are superior to military official A: No. This provision is specifically addressed to only when a law makes them so.113 the AFP and not to the PNP, because the latter is separate and distinct from the former. (Record ofB. Armed Forces of the Philippines the Constitutional Commission, Volume V, p. 296; Manalo v. Sistoza, 312 SCRA 239) 1. Reasons [in the constitution] for the existence of the armed forces VI. Defense of State (1) As protector of the people and the State (2) To secure the sovereignty of the State and the Section 4. The prime duty of the integrity of the national territory.114 government is to serve and protect the people. The Government may (3) They may be called to prevent or suppress call upon the people to defend the lawless violence, invasion or rebellion.115 state and, in the fulfillment thereof, (4) All Members of the armed forces shall take an all citizens may be required, under oath or affirmation to uphold and defend the conditions provided by law, to Constitution.116 render personal military or civil service. 2. Composition The Armed Forces of the Philippines shall be composed of a citizen armed force which shall VII. Peace and Order undergo military training and serve as may be provided by law. (Article XVI, Section 4) Section 5. The maintenance of 3. On Politics peace and order, the protection of life, liberty and property, and the The armed forces shall be insulated from partisan promotion of general welfare are politics. No member of the military shall engage essential for the enjoyment by all the directly or indirectly in any partisan political activity, people of the blessings of except to vote. (Article XVI, Section 5) democracy. Section 5 is not a self-executing provision. It is merely a guideline for legislation. (Kilosbayan v.110 Cruz, Philippine Political Law, p. 67 (1995 ed). Morato)111 Cruz, Philippine Political Law, p. 67 (1995 ed). Right to bear arms. The right to bear arms is a112 Article VII, Section 18. statutory, not a constitutional right. The license to113 carry a firearm is neither a property nor a property Bernas Primer at 13 (2006 ed.)114 Article II, Section 3.115 117 Article VII, Section 18. See IBP v. Zamora. Bernas Commentary, p 66 (2003 ed).116 118 Article XVI, Seciton 5. Bernas Commentary, p 66 (2003 ed).I sweat, I bleed, I soar… 18Service, Sacrifice, Excellence
  • 19. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA right. Neither does it create a vested right. Even if it religious groups and mission boards. (Article were a property right, it cannot be considered XIV, Section 4(2)). absolute as to be placed beyond the reach of police power. The maintenance of peace and order, and the protection of the people against violence STATE POLICIES are constitutional duties of the State, and the right to bear arms is to be construed in connection and IX. Independent Foreign Policy in harmony with these constitutional duties. (Chavez v. Romulo, 2004) Section 7. The State shall pursue VIII. Separation of Church and State an independent foreign policy. In its relations with other states the paramount consideration shall be Section 6. The separation of national sovereignty, territorial Church and State shall be integrity, national interest, and the inviolable. right to self-determination.A. Rationale The word “relations” covers the whole gamut of treaties and international agreements and other“Strong fences make good neighbors.” The idea is to kinds of intercourse.121delineate boundaries between the two institutions andthus avoid encroachments by one against the other X. Freedom from Nuclear Weaponsbecause of a misunderstanding of the limits of theirrespective exclusive jurisdictions.119 Section 8. The PhilippinesB. Who is Prohibited from Interfering consistent with the national interest, adopts and pursues aDoctrine cuts both ways. It is not only the State that is policy of freedom from nuclearprohibited from interfering in purely ecclesiastical weapons in its territory.affairs; the Church is likewise barred from meddling inpurely secular matters. 120(Cruz) A. Scope of PolicyC. Separation of Church and State is Reinforced by: The policy includes the prohibition not only of the 1. Freedom of Religion Clause (Article III, Section possession, control, and manufacture of nuclear 5) weapons but also nuclear arms tests. 2. Religious sect cannot be registered as a political party (Article IX-C, Section 2(5)) B. Exception to the Policy 3. No sectoral representatives from the religious Exception to this policy may be made by the sector. (Article VI, Section 5 (2)) political department but it must be justified by the 4. Prohibition against appropriation against demands of the national interest.122 sectarian benefit. (Article VI, 29(2)). The policy does not prohibit the peaceful use ofD. Exceptions nuclear energy.123 1. Churches, parsonages, etc. actually, directly and exclusively used for religious purposes C. Implication of the Policy for the Presence of shall be exempt from taxation. (Article VI, American Troops Section 28(3)). 2. When priest, preacher, minister or dignitary is Any new agreement on bases or the presence of assigned to the armed forces, or any penal the troops, if ever there is one, must embody the institution or government orphanage or basic policy of freedom from nuclear weapons. leprosarium, public money may be paid to Moreover, it would be well within the power of them. (Article VI, Section 29(2)) government to demand ocular inspection and 3. Optional religious instruction for public removal of nuclear arms.124 elementary and high school students. (Article XIV, Section 3(3)). 4. Filipino ownership requirement for education 121 institutions, except those established by Bernas Commentary, p 72 (2003 ed). 122 Bernas Primer at 15 (2006 ed.)119 123 Cruz, Philippine Political Law, p. 65 (1995 ed). Bernas Primer at 15 (2006 ed.)120 124 Cruz, Philippine Political Law, p. 65 (1995 ed). Bernas Primer at 15 (2006 ed.)I sweat, I bleed, I soar… 19Service, Sacrifice, Excellence
  • 20. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA XI. Just and Dynamic Social Order be passed to implement them. (Basco v. PAGCOR, 197 DCRA 52)127 Section 9. The State shall promote a just and dynamic social XIV. Family; Rearing the Youth order that will ensure the prosperity and independence of the nation and free the people from poverty Section 12. The State recognizes through policies that provide the sanctity of family life and shall adequate social services, promote protect and strengthen the family full employment, a raising standard as a basic autonomous social of living, and an improved quality of institution. It shall equally protect life for all. the life of the mother and the life of the unborn from conception. The natural and primary right and duty XII. Social Justice of parents in rearing of the youth for civic efficiency and the development of moral character Section 10. The State shall shall receive the support of the promote social justice in all phases government. of national development Section 13. The State recognizesA. Definition of Social Justice the vital role of the youth in nation- building and shall promote and Social Justice is neither communism, nor protect their physical moral, despotism, nor atomism, nor anarchy, but the spiritual, intellectual, and social humanization of the laws and the equalization well-being. It shall inculcate in the of the social and economic forces by the State youth patriotism and nationalism, so that justice in its rational and objectively and encourage their involvement in secular conception may at least be public and civic affairs. approximated. (Calalang v. Williams) A. Family Social justice simply means the equalization of economic, political, and social opportunities with Family” means a stable heterosexual relationship. special emphasis on the duty of the state to tilt the The family is not a creature of the State.128 balance of social forces by favoring the disadvantaged in life.125 B. Effect of the Declaration of Family Autonomy It accepts the principle that the family is anterior to XIII. Respect for Human Dignity the State and not a creature of the State. It protects the family from instrumentalization by the State.129 Section 11. The State values the C. Purpose of Assertion of Protection of the Unborn dignity of every human person and guarantees full respect for human rights. The purpose of the assertion that the protection begins from the time of conception is to prevent the State form adopting the doctrine in Roe v. The concretization of this provision is found Wade which liberalized abortion laws up to the principally in the Bill of Rights and in the human sixth month of pregnancy by allowing abortion any rights provision of Article XIII.126 time during the first six months of pregnancy provided it can be done without danger to the Facts: Petitioners questioned the constitutionality mother. of PD 1869, which created the PAGCOR and authorized it to operate gambling casinos, on the D. Legal Meaning of the Protection Guaranteed for ground that it violated Sections 11, 12 and 13 of the Unborn. Article II of the Constitution. Held: These provisions are merely statements of policies which are not self-executing. A law has to 127 Jacinto Jimenez, Political Law Compendium, 4 (2006 ed.)125 128 Bernas Primer at 16 (2006 ed.) Bernas Commentary, p 84 (2003 ed).126 129 Bernas Commentary, p 83 (2003 ed). Bernas Primer at 16 (2006 ed.)I sweat, I bleed, I soar… 20Service, Sacrifice, Excellence
  • 21. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 1. This is not an assertion that the unborn is a existing inequalities. The general idea is for the law legal person. to ignore sex where sex is not a relevant factor in 2. This is not an assertion that the life of the determining rights and duties. Nor is the provision unborn is placed exactly on the level of the life meant to ignore customs and traditions.131 of the mother. (When necessary to save the life of the mother, the life of the unborn may be In Philippine Telegraph and Telephone Co. v. sacrificed; but not when the purpose is merely NLRC, 1997, the Supreme Court held that the to save the mother from emotional suffering, petitioner’s policy of not accepting or considering for which other remedies must be sought, or to as disqualified from work any woman worker who spare the child from a life of poverty, which can contracts marriage , runs afoul of the test of, and be attended to by welfare institutions.)130 the right against discrimination, which is guaranteed all women workers under theE. Education Constitution. While a requirement that a woman employee must remain unmarried may be justified as a “bona fide qualification” where the particular In the matter of education, the primary and natural requirements of the job would demand the same, right belongs to the parents. The State has a discrimination against married women cannot be secondary and supportive role. adopted by the employer as a general principle. Foreign Language. The State cannot prohibit the teaching of foreign language to children before XVI. Health they reach a certain age. Such restriction does violence both to the letter and the spirit of the Section 15. The State shall protect Constitution. (Meyer v. Nebraska) and promote the right to health of the people and instill health Public School. The State cannot require children consciousness among them. to attend only public schools before they reach a certain age. The child is not a mere creature of the The provisions which directly or indirectly pertain to State. Those who nurture him and direct his destiny the duty of the State to protect and promote the have the right to recognize and prepare him. people’s right to health and well-being are not self- (Pierce v. Society of Sisters) executory. They await implementation by Congress.132 Religious Upbringing. The State cannot require children to continue schooling beyond a certain XVII. Balanced and Healthful Ecology age in the honest and sincere claim of parents that such schooling would be harmful to their religious Section 16. The State shall protect upbringing. Only those interests of the State “of the and advance the right of the people to highest order and those not otherwise served can a balanced and healthful ecology in overbalance” the primary interest of parents in the accord with the rhythm and harmony religious upbringing of their children. (Wisconsin v. of nature. Yoder) Section 16 provides for enforceable rights. Hence, Parens Patriae. However, as parens patriae, the appeal to it has been recognized as conferring State has the authority and duty to step in where “standing” on minors to challenge logging policies parents fail to or are unable to cope with their of the government. (Oposa v. Factoran) duties to their children. While the right to a balanced and healthful XV. Women ecology is to be found under the Declaration of Principles and State Policies and not under the Bill Section 14. The State recognizes of Rights, it does not follow that it is less important the role of women in nation- than any of the civil and political rights enumerated building, and shall ensure the in the latter. Such a right belongs to a different fundamental equality before the law category of rights for it concerns nothing less than of women and men. self-preservation and self-perpetuation. These basic rights need not even be written in the Constitution for they are assumed to exist from the The provision is so worded as not to automatically inception of humankind. (Oposa v. Factoran,1993) dislocate the Civil Code and the civil law jurisprudence on the subject. What it does is to 131 give impetus to the removal, through statutes, of Bernas Primer at 18 (2006 ed.) 132 Tondo Medical Center Employees v. CA. G.R. No.130 Bernas Primer at 17 (2006 ed.) 167324, July 17, 2007.I sweat, I bleed, I soar… 21Service, Sacrifice, Excellence
  • 22. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA It shall protect the rights of workers On this basis too, the SC upheld the empowerment and promote their welfare. of the Laguna Lake Development Authority (LLDA) to protect the inhabitants of the Laguna Lake Area “A primary social economic force” means that the from the deleterious effects of pollutants coming human factor has primacy over non-human factors from garbage dumping and the discharge of of production. wastes in the area as against the local autonomy claim of local governments in the area. (LLDA v. Protection to labor does not indicate promotion of CA, 1995) employment alone. Under the welfare and social justice provisions of the Constitution, the promotion XVIII. Education, Science and Technology of full employment, while desirable, cannot take a backseat to the government’s constitutional duty to provide mechanisms for the protection of our Section 17. The State shall give workforce, local or overseas. (JMM Promotion and priority to education, science and Management v. CA, 260 SCRA 319) technology, arts, culture and sports to foster patriotism, nationalism, What concerns the Constitution more paramountly accelerate social progress, and is employment be above all, decent, just and promote total human liberation and humane. It is bad enough that the country has to development. send its sons and daughters to strange lands, (See Article XIV, Section 2) because it cannot satisfy their employment needs at home. Under these circumstances, the This does not mean that the government is not free Government is duty bound to provide them to balance the demands of education against other adequate protection, personally and economically, competing and urgent demands. (Guingona v. while away from home. (Philippine Association of Carague) Service Exporters v. Drilon, 163 SCRA 386) In Philippine Merchant Marine School Inc. v. CA, XX. Self-Reliant and Independent Economy the Court said that the requirement that a school must first obtain government authorization before operating is based on the State policy that Section 19. The State shall educational programs and/or operations shall be of develop a self-reliant and good quality and, therefore, shall at least satisfy independent national economy minimum standards with respect to curricula, effectively controlled by Filipinos. teaching staff, physical plant and facilities and administrative and management viability. This is a guide for interpreting provisions on national economy and patrimony. Any doubt must While it is true that the Court has upheld the be resolved in favor of self-reliance and constitutional right of every citizen to select a independence and in favor of Filipinos. profession or course of study subject to fair, reasonable and equitable admission and academic A petrochemical industry is not an ordinary requirements, the exercise of this right may be investment opportunity, it is essential to national regulated pursuant to the police power of the State interest. (The approval of the transfer of the plant to safeguard health, morals, peace, education, from Bataan to Batangas and authorization of the order, safety and general welfare. change of feedstock from naptha only to naptha Thus, persons who desire to engage in the learned and/or LPG do not prove to be advantageous to professions requiring scientific or technical the government. This is a repudiation of the knowledge may be required to take an examination independent policy of the government to run its as a prerequisite to engaging in their chosen own affairs the way it deems best for national careers. This regulation assumes particular interest.) (Garcia v. BOI) pertinence in the field of medicine, in order to protect the public from the potentially deadly effects The WTO agreement does not violate Section 19 of of incompetence and ignorance. (PRC v. De Article II, nor Sections 10 and 12 of Article XII, Guzman, 2004) because said sections should be read and understood in relation to Sections 1 and 3, Article XIX. Labor XII, which requires the pursuit of a trade policy that “serves the general welfare and utilizes all forms and arrangements of exchange on the basis of Section 18. The State affirms labor equality and reciprocity.” (Tanada V. Angara) as a primary social economic force.I sweat, I bleed, I soar… 22Service, Sacrifice, Excellence
  • 23. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA XXI. Private Sector and Private Enterprise organizations in national development should be encouraged.133 Section 20. The State recognizes XXV. Communication and Information the indispensable role of the private sector, encourages private enterprise, and provides incentives Section 24. The State recognizes to needed investments. the vital role of communication and information in nation-building. Section 20 is an acknowledgment of the (See Article XVI, Sections 10-11; Article XVIII, importance of private initiative in building the Section 23) nation. However, it is not a call for official abdication of duty to citizenry. (Marine Radio The NTC is justified to require PLDT to enter Communications Association v. Reyes) into an interconnection agreement with a cellular mobile telephone system. The order Although the Constitution enshrines free enterprise was issued in recognition of the vital role of as a policy, it nevertheless reserves to the communications in nation-building and to Government the power to intervene whenever ensure that all users of the public necessary for the promotion of the general welfare, telecommunications service have access to all as reflected in Sections 6 and 19 of Article XII. other users of service within the Philippines. (PLDT v. NTC) XXII. Comprehensive Rural Development XXVI. Local Autonomy Section 21. The State shall promote comprehensive rural Section 25. The State shall ensure development and agrarian the autonomy of local program. governments. (See Article XIII, Sections 4-10) (See Article X) Comprehensive rural development includes not Local autonomy under the 1987 Constitution simply only agrarian reform. It also encompasses a broad means “decentralization” and does not make the spectrum of social, economic, human, cultural, local governments sovereign within the State or an political and even industrial development. imperium in imperio. (Basco v. PAGCOR) XXIII. Indigenous Cultural Communities Decentralization of administration is merely a delegation of administrative powers to the local government unit in order to broaden the base of Section 22. The State recognizes governmental powers. Decentralization of power is and promotes the rights of abdication by the national government of indigenous cultural communities governmental powers. within the framework of national unity and development. Even as we recognize that the Constitution (See Article VI Section 5(2); Article XII, Section 5; guarantees autonomy to local government units, Article XIV, Section 17) the exercise of local autonomy remains subject to the power of control by Congress and the power of XXIV. Independent People’s Organizations; general supervision by the President. (Judge Volunteerism Dadole v. Commission on Audit, 2002) XXVII. Equal Access to Opportunities Section 23. The State shall encourage non-governmental, community-bases, or sectoral Section 26. The State shall organizations that promote the guarantee equal access to welfare of the nation. opportunities for public service, and (See Article XIII, Sections 15-16) prohibit political dynasties as may be defined by law. The provision recognizes the principle that (See Article VII, Section 13; Article XIII, Sections 1- volunteerism and participation of non-governmental 2) 133 Bernas Commentary, p 96(2003 ed).I sweat, I bleed, I soar… 23Service, Sacrifice, Excellence
  • 24. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Philippines because it divided the Purpose. The thrust of the provision is to impose Philippines into three states. on the sate the obligation of guaranteeing equal 2. It violates Section 1, Article II of the access to public office.134 Constitution which provides for the establishment of democratic and republic There is no constitutional right to run for or hold states by replacing it with three states public office. What is recognized is merely a organized as a confederation. privilege subject to limitations imposed by law. Section 26 of the Constitution neither bestows such 3. It violates Section 22, Article II of the right nor elevates the privilege to the level of an Constitution, which, while recognizing and enforceable right. (Pamatong v. COMELEC) promoting the rights of indigenous cultural communities, provides for national unity and development. XXVIII. Public Service 4. It violates Section 15, Article X of the Constitution, which, provides for Section 27. The State shall autonomous regions in Muslim Mindanao maintain honesty and integrity in and in the cordilleras within the framework public service and take positive and of national sovereignty as well as effective measures against graft territorial integrity of the Republic of the and corruption. Philippines.(See Article IX-D; Article XI, Sections 4-15) 5. It violates the sovereignty of the Republic of the Philippines. XXIV. Full Public Disclosure(1989 and 2000 Bar Question) Section 28. 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.(Article III, Section 7; Article VI Sections 12 and 20;Article VII, Section 20; Article XI, Section 17; Article XII,Section 21) It is well established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in nature. (Akbayan v. Aquino, 2008)xxx (1996 Bar Question) A law was passed dividing the Philippines into three regions (Luzon, Visayas and Mindanao) each constituting an independent state except on matters of foreign relations, national defense and national taxation, which are vested in the Central Government. Is the law valid? The law dividing the Philippines into three regions each constituting an independent state and vesting in a central government matters of foreign relations, national defense and national taxation is unconstitutional. 1. It violates Article I, which guarantees the integrity of the national territory of the134 Bernas Commentary, p 99 (2003 ed).I sweat, I bleed, I soar… 24Service, Sacrifice, Excellence
  • 25. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA B. Where Vested LEGISLATIVE DEPARTMENT Legislative power is vested in Congress except to the extent reserved to the people by the provision on initiative and referendum. OUTLINE OF ARTICLE VI C. Classification of legislative powerI. Legislative Power (§1) (1) Original legislative power- possessed by theII. Powers of Congress sovereign people.III. Congress (§§ 2-10) (2) Derivative legislative power- that which has beenIV. Privileges of Members (§ 11) delegated by the sovereign people to the legislative bodies. (Kind of power vested in Congress)V. Duty to Disclose, Disqualifications and Prohibitions (§§ 12-14) (3) Constituent- The power to amend or revise the constitutionVI. Internal Government of Congress (§§ (4) Ordinary- Power to pass ordinary laws. 15-16)VII. Electoral Tribunal, CA (§§17-19) Legislative power exercised by the people. TheVIII. Records and Books of Accounts (§ 20) people, through the amendatory process, exercise constituent power, and through initiative andIX. Inquiries/ Oversight function (§§ 21-22) referendum, ordinary legislative power.X. Emergency Powers (§ 23)XI. Bills/ Legislative Process (§ 24,26,27) D. Scope of Legislative power.XII. Power of the Purse/Fiscal Powers (§§ Congress may legislate on any subject matter. 28,29,25) (Vera v. Avelino) In other words, the legislativeXIII. Other Prohibited Measures (§§30-31) power of Congress is plenary.XIV. Initiative and Referendum (§ 32) E. Limitations on legislative power: I. LEGISLATIVE POWER 1. Substantive limitations135 2. Procedural limitations136Definition of Legislative PowerWhere Vested 1. Substantive limitations:Classification of Legislative Power a. Express LimitationsScope of Legislative powerLimitations on Legislative Power i. Bill of Rights137Non-delegability of Legislative power ii. On Appropriations138Rationale of the Doctrine of Non-delegability iii. On Taxation139Valid delegation of legislative powersDelegation of rule-making power 135 Refer to the subject matter of legislation. These are limitations onRequisites for a valid delegation of rule-making the content of laws.power 136 Formal limitations refer to the procedural requirements to beSufficient Standards complied with by Congress in the passage of the bills. (Sinco, Phil.Examples of Invalid of Delegation Political Law) 137 Bill of Rights Section 1. The Legislative power o No law shall be passed abridging freedom of speech, of shall be vested in the Congress of expression etc (art. 3 §4) the Philippines which shall consist o No law shall be made respecting an establishment of religion of a Senate and a House of (art. 3 §5) o No law impairing the obligation of contracts shall be passed. Representatives, except to the (art 3 §10) extent reserved to the people by o No ex post facto law or bill of attainder shall be enacted. the provision on initiative and (art. 3 §22) referendum. 138 On Appropriations o Congress cannot increase appropriations by the PresidentA. Definition of Legislative Power (art. 6 §25) o (art. 6 29(2) Legislative power is the authority to make laws and 139 to alter or repeal them. On Taxation o (art. 6 §28 and 29(3))I sweat, I bleed, I soar… 25Service, Sacrifice, Excellence
  • 26. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA iv. On Constitutional Appellate Some commentators include (a) delegation to jurisdiction of SC140 the people at large and (b) delegation to v. No law granting a title of royalty or administrative bodies to the exceptions.(See Cruz, nobility shall be enacted (art. 6 §31) Philippine Political Law p 87, 1995 ed.) However, I b. Implied limitations submit this is not accurate. i. Congress cannot legislate I submit that legislative power is not delegated irrepealable laws to the people because in the first place they are the ii. Congress cannot delegate legislative primary holder of the power; they only delegated powers such power to the Congress through the iii. Non-encroachment on powers of Constitution. (See Preamble and Article II Section other departments 1) Note that Article VI Section 1 does not delegate power to the people. It reserves legislative power 2. Procedural limitations: to the people. -asm a. Only one subject What is delegated to administrative bodies is b. Three readings on separate days not legislative power but rule-making power or law c. Printed copies in its final form 3 days before execution. passage of the bill. (art 6 § 26) I. Delegation of rule-making powersF. Non-delegability of Legislative power What is delegated to administrative bodies is not Doctrine of Non-delegation of legislative legislative power but rule-making power or law powers: The rule is delegata potestas non potest execution. Administrative agencies may be allowed delagari-what has been delegated cannot be either to: delegated. The doctrine rests on the ethical  Fill up the details on otherwise complete statue principle that a delegated power constitutes not or only a right but duty to be performed by the delegate by the instrumentality of his own judgment  Ascertain the facts necessary to bring a “contingent” law or provision into actual and not through the intervening mind of another. operation.G. Rationale of the Doctrine of Non-delegability: Power of Subordinate Legislation. It is the authority of the administrative body tasked by the (1) Based on the separation of powers. (Why go legislature to implement laws to promulgate rules to the trouble of separating the three powers of and regulations to properly execute and implement government if they can straightaway remerge laws. on their own notion?) (2) Based on due process of law. Such Contingent Legislation precludes the transfer of regulatory functions The standby authority given to the President to to private persons. increase the value added tax rate in the VAT Law, R.A. 9337 was upheld as an example of contingent (3) And, based on the maxim, “degelata potestas legislation where the effectivity of the law is made non potest delegari” meaning what has been to depend on the verification by the executive of delegated already cannot be further delegated. the existence of certain conditions.141H. Valid delegation of legislative powers In Gerochi v. DENR142 the power delegated to the Energy Regulator Board to fix and impose a General Rule: Legislative power cannot be universal charge on electricity end-users was delegated challenged as an undue delegation of the power to Exceptions: tax. The Court said that, since the purpose of the (1) Delegation of tariff power to the President law was not revenue generation but energy (2) Delegation of emergency powers to the regulation, the power involved was more police power than the power to tax. Moreover the Court President added that the power to tax can be used for (3) Delegation to LGU’s regulation. As to the validity of the delegation to an executive agency, the Court was satisfied that the Note: delegating law was complete in itself and the amount to be charged was made certain by the o (art. 14 §4(3)) parameters set by the law itself. 140 141 No law shall be passed increasing the appellate jurisdiction of Abakada Guru Party List Officers v. Executive Secretary, G.R. the SC without its advice and concurrence (art. 6 §30) 168056, September 1, 2005. Reconsidered October 18, 2005. 142 G.R. No. 159796, July 17, 2007I sweat, I bleed, I soar… 26Service, Sacrifice, Excellence
  • 27. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA and grave danger of a substantive evil inJ. Requisites for a valid delegation of rule-making Section 6(c) substantially means the same.power or execution: (2005 Bar Question) (Bayan v. Ermita) (1) The delegating law must be complete in itself 4. Examples of sufficient standards o “Necessary or advisable in the public interest” as a – it must set therein the policy to be carried out standard. Public interest in this case is sufficient or implemented by the delegate. standard pertaining to the issuance or cancellation (2) The delegating law must fix a sufficient of certificates or permits. And the term “public standard- the limits of which are sufficiently interest’ is not without a settled meaning. (People vs. Rosenthal) determinate or determinable, to which the o “Necessary in the interest of law and order” as a delegate must conform in the performance of standard. An exception to the general rule, his functions. sanctioned by immemorial practice, permits the central legislative body to delegate legislative Importance of Policy. Without a statutory powers to local authorities. (Rubi vs. Provincial declaration of policy, the delegate would, in effect, Board of Mindoro) make or formulate such policy, which is the o “To promote simplicity, economy and efficiency” as a essence of every law. standard. (Cervantes vs. Auditor General) o “Of a moral, educational, or amusing and harmless Importance of Standard. Without standard, there character” as a standard. (Mutual Film Co. vs. Industrial Commission of Ohio) would be no means to determine with reasonable o “To maintain monetary stability promote a rising level certainty whether the delegate has acted within or of production, employment and real income” as a beyond the scope of his authority. Hence, he could standard. (People vs. Jollife) thereby arrogate upon himself the power, not only o “Adequate and efficient instruction” as standard. to make law, but also to unmake it, by adopting (Philippine Association of Colleges and Universities measures inconsistent with the end sought to be vs. Sec. of Education. attained by the Act of Congress. (Pelaez v. Auditor o “Justice and equity and substantial merits of the General) case” as a standard. The discretionary power thus conferred is judicial in character and does notK. Standards infringe upon the principle of separation of powers1. Need not be explicit the prohibition against the delegation of legislative2. May be found in various parts of the statute function (International Hardwood and Veneer Co. vs. Pangil Federation of Labor)3. May be embodied in other statutes of the same o “Fair and equitable employment practices” as a statute standard. The power of the POEA in requiring the model contract is not unlimited as there is a 1. A legislative standard need not be explicit or sufficient standard guiding the delegate in the formulated in precise declaratory language. It can exercise of the said authority. (Eastern Shipping be drawn from the declared policy of the law and Lines Inc. vs. POEA) from the totality of the delegating statute. (Osmena o “As far as practicable”, “decline of crude oil prices in v. Orbos) It can be implied from the policy and the world market” and “stability of the peso purpose of the law (Agustin v. Edu) exchange rate to the US dollar” as standards. The dictionary meanings of these words are well settled 2. A legislative standard may be found in various and cannot confuse men of reasonable intelligence. parts of the statute. (Tablarin v. Guttierez) (However, by considering another factor to hasten full deregulation, the Executive Department rewrote the standards set forth in the statute. The Executive 3. A legislative standard need not be found in the is bereft of any right to alter either by subtraction or law challenged and may be embodied in other addition the standards set in the statute.) (Tatad vs. statues on the same subject. (Chiongbayan v Sec of Energy) Orbos) L. Examples of invalid delegation Q: Petitioners questioned the grant of the o Where there is no standard that the officials must powers to mayors to issue permits for public observe in determining to whom to distribute the assemblies in the Public Assembly Act on confiscated carabaos and carabeef, there is thus an the ground that it constituted an undue invalid delegation of legislative power. (Ynot v. IAC) delegation of legislative power. There is o Where a provision provides that the penalty would however a reference to “imminent and grave be a fine or 100 pesos OR imprisonment in the danger of a substantive evil: in Section 6(c). discretion of the court without prescribing the Decide. minimum and maximum periods of imprisonment, a A: The law provides a precise and sufficient penalty imposed based thereon is unconstitutional. It standard, the clear and present danger test is not for the courts to fix the term of imprisonment where no points of reference have been provided by in Section 6(a). The reference to imminent the legislature. (People v. Dacuycuy)I sweat, I bleed, I soar… 27Service, Sacrifice, Excellence
  • 28. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA o Where the statute leaves to the sole discretion of the (7) Power to act as Board of Canvassers in election Governor-General to say what was and what was of President146 (art 7 §4) not “any cause” for enforcing it, the same is an (8) Power to call a special election for President invalid delegation of power. The Governor-General and Vice-President. (art. 7 §10) cannot by proclamation, determine what act shall constitute a crime or not. That is essentially a (9) Power to judge President’s physical fitness to legislative task. (US vs. Ang Tang) discharge the functions of the Presidency (art. o Where a statute requires every public utility “to 7§11) furnish annually a detailed report of finances and (10) Power to revoke or extend suspension of the operations in such form and containing such matter privilege of the writ of habeas corpus or as the Board may, from time to time, by order, declaration of martial law. (art. 7 §18) prescribe”, it seems that the legislature simply (11) Power to concur in Presidential amnesties. authorized the Board to require what information the Concurrence of majority of all the members of Board wants. Such constitutes an unconstitutional Congress. (art.7 §19) delegation of legislative power. (Compana General de Tabacos de Filipinas vs. Board of Public Utility (12) Power to concur in treaties or international Commissioners) agreements. Concurrence of at least 2/3 of all o Where the legislature has not made the operation the members of the Senate.(art.7 §21) (13) Power to confirm certain (execution) of a statute contingent upon specified facts or conditions to be ascertained by the appointments/nominations made by the provincial board but in reality leaves the entire President (art.7 §9, art.7§16) matter for the various provincial boards to (14) Power of Impeachment (art.11§2) determine, such constitute an unconstitutional (15) Power relative to natural resources147 (art. 12 delegation of legislative power. A law may not be §2) suspended as to certain individuals only, leaving the (16) Power of internal organization law to be enjoyed by others. (People vs. Vera) Election of officers o The authority to CREATE municipal corporations is Promulgate internal rules essentially legislative in nature. Disciplinary powers (art.6 §16) II. POWERS OF CONGRESS Note: Members of Congress have immunity from arrest and parliamentary immunity.148 (art 6 §§11&12)A. Inherent PowersB. Express Powers III. CongressA. INHERENT POWERS(1) Police power Composition of Congress(2) Power of eminent domain Bicameralism v. Unicameralism(3) Power of taxation Composition of Senate(4)Implied Powers (Contempt Power)143 Qualification of Senators Senators’ Term of Office / Staggering of TermsB. EXPRESS POWERS Composition of HR Qualification of Members of HR (1) Legislative Power (art 6 sec1) Domicile (a) Ordinary- power to pass ordinary laws Property Qualification (b) Constituent144- power to amend and or Term of Office of Representatives revise the Constitution Party-List System (2) Power of the Purse145 (art. 6§25) Legislative Districts (3) Power of Taxation (art. 6 §28(3), art. 14 §4(3), Election art 6, §29(4)) Salaries (4) Investigatory Power (art. 6 §21) (5) Oversight function (art. 6 §22) A. Composition of Congress (6) Power to declare the existence of state of war (art. 6 §23(1)) The Congress of the Philippines which shall consist of a Senate and a House of Representatives. (art 6 §1)143 Page 12 of 2008 UP Bar Ops Reviewer. 146 This function is non-legislative. (Pimentel v. Joint Committee on144 Propose amendment to or revision of the Constitution (art 17 Congress. June 22, 2004)§1)Call for a constitutional convention (art 17 §3) 147 Antonio B. Nachura, Outline/Reviewer in Political Law (2006145 ed.) No money shall be paid out of the Treasury except in pursuance 148of an appropriation made by law. (art 6 §29(1)) The form, content, Privilege from attest is not given to Congress as a body, but ratherand manner of preparation of budget shall be prescribed by law. one that is granted particularly to each individual member of it.(art 6 §25) (Coffin v. Coffin, 4 Mass 1)I sweat, I bleed, I soar… 28Service, Sacrifice, Excellence
  • 29. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA less than two years immediatelyB. Bicameralism v. Unicameralism preceding the day of election. The Congress of the Philippines is a bicameral Qualifications of a senator body composed of a Senate and House of (1) Natural-born citizen of the Philippines Representatives, the first being considered as the (2) At least 35 years of age on the day of the upper house and the second the lower house. election (3) Able to read and write Advantages of Unicameralism. (4) Registered voter 1. Simplicity of organization resulting in (5) Resident of the Philippines for not less than economy and efficiency 2 years immediately preceding the day of 2. Facility in pinpointing responsibility for election. legislation “On the day of the election” means on the day the 3. Avoidance of duplication. votes are cast. (Bernas Primer) Advantages of Bicameralism. E. Senators’ Term of Office 1. Allows for a body with a national Term perspective to check the parochial Commencement of Term tendency of representatives elected by Limitation district. Effect of Voluntary Renunciation 2. Allows for more careful study of legislation Staggering of Terms 3. Makes the legislature less susceptible to Reason for Staggering control by executive 4. Serves as training ground for national Section 4. The term of office of the leaders.149 Senators shall be six years and shall commence, unless otherwiseC. Composition of Senate provided by law, at noon on the thirtieth day of June next following Section 2. The Senate shall be their election. composed of twenty-four senators No Senator shall serve for more who shall be elected at large by the than two consecutive terms. qualified voters of the Philippines, Voluntary renunciation of the office as may be provided by law. for any length of time shall not be considered as an interruption in the Elected at large, reason. By providing for a continuity of his service for the full membership elected at large by the electorate, this term for which he was elected. rule intends to make the Senate a training ground for national leaders and possibly a springboard for 1. Term. The term of office of the Senators shall be the Presidency. The feeling is that the senator, 6 years. having national rather than only a district constituency, will have a broader outlook of the 2. Commencement of term. The term of office of problems of the country instead of being restricted the Senators shall commence on 12:00 noon of by parochial viewpoints and narrow interests. With June 30 next following their election. (unless such a perspective, the Senate is likely to be more otherwise provided by law) circumspect and broad minded than the House of Representatives.150 3. Limitation. A Senator may not serve for more than two consecutive terms. However, they mayD. Qualifications of a Senator serve for more than two terms provided that the terms are not consecutive. Section 3. No person shall be a 4. Effect of Voluntary Renunciation. Voluntary senator unless he is a natural-born renunciation of office for any length of time shall citizen of the Philippines, and, on not be considered as an interruption in the the day of the election, is at least continuity of his service for the full term for which thirty-five years of age, able to read he was elected. (art. 6 § 4) and write, a registered voter, and a resident of the Philippines for not 5. Staggering of Terms. The Senate shall not at any time be completely dissolved. One-half of the membership is retained as the other half is149 Bernas, Primer p 224, 2006 ed. replaced or reelected every three years.150 Cruz, Phlippine Political Law.I sweat, I bleed, I soar… 29Service, Sacrifice, Excellence
  • 30. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 6. Reason for Staggering. The continuity of the (2) At least 25 years of age on the day of the life of the Senate is intended to encourage the election maintenance of Senate policies as well as (3) Able to read and write guarantee that there will be experienced members (4) A registered voter in the district in which he who can help and train newcomers in the shall be elected discharge of their duties.151 (5) A resident of the district in which he shall be elected for a period not less than 1 yearF. Composition of House of Representatives immediately preceding the day of the election. Section 5. (1) The House of Representatives shall be H. Domicile composed of not more than two hundred and fifty members, unless Domicile otherwise fixed by law, who shall Residence as a qualification means “domicile”. be elected from legislative districts Normally a person’s domicile is his domicile of apportioned among the provinces, origin. cities, and the Metropolitan Manila area in accordance with the If a person never loses his or her domicile, the one number of their respective year requirement of Section 6 is not of relevance inhabitants, and on the basis of a because he or she is deemed never to have left the uniform and progressive ratio, and place. (Romualdez-Marcos v. COMELEC) those who, as provided by law, shall be elected through a party-list A person may lose her domicile by voluntary system of registered national, abandonment for a new one or by marriage to a regional, and sectoral parties or husband (who under the Civil Code dictates the organizations. wife’s domicile). Composition. The composition of the House of Change of domicile Representatives shall be composed of not more To successfully effect a change of domicile, there than 250 members unless otherwise fixed by law. must be: o Physical Presence-Residence or bodily Representatives shall be elected from legislative presence in the new locality (The change of districts and through party-list system. residence must be voluntary) o Animus manendi -Intention to remain in the a) District representatives new locality (The purpose to remain in or at b) Party-list representatives the domicile of choice must be for an c) Sectoral representatives (these existed only indefinite period of time) until 1998) o Animus non revertendi-Intention to abandon old domicileG. Qualification of Representatives A lease contract does not adequately support a Section 6. No person shall be a change of domicile. The lease does not constitute a member of the House of clear animus manendi. (Domino v. COMELEC) Representatives unless he is a However a lease contract coupled with affidavit of natural born citizen of the the owner where a person lives, his marriage Philippines and, on the day of the certificate, birth certificate of his daughter and election, is at least twenty-five various letter may prove that a person has years of age, able to read and changed his residence. (Perez v. COMELEC) write, and except the party-list representatives, a registered voter I. Property Qualification in the district in which he shall be elected, and a resident thereof for a Property qualifications are contrary to the social period of not less than one year justice provision of the Constitution. Such will also immediately preceding the day of be adding qualifications provided by the the election. Constitution. Qualifications of District Representatives: J. Term of Office of Representatives (1) Natural-born citizen of the Philippines Section 7. The members of the151 Cruz, Philippine Political Law. House of Representatives shall beI sweat, I bleed, I soar… 30Service, Sacrifice, Excellence
  • 31. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA elected for a term of three years (2) The party-list representatives which shall begin, unless otherwise shall constitute twenty per centum provided by law, at noon on the of the total number of thirtieth day of June next following representatives including those their election. under the party-list. For three No member of the House consecutive terms after the Representatives shall serve for ratification of this Constitution, one- more than three consecutive terms. half of the seats allocated to party- Voluntary renunciation of the office list representatives shall be filled, for any length of time shall not be as may be provided by law, by considered as an interruption in the selection or election from the labor, continuity of his service for the full peasant, urban poor, indigenous term for which he was elected. cultural communities, women, youth, and such other sectors as Term v. Tenure. Term refers to the period during may be provided by law, except the which an official is entitled to hold office. Tenure religious sector. refers to the period during which the official actually holds the office. 1. Party-list System. (RA 7941) The party-list system is a mechanism of proportional The term of office of Representatives shall be 3 representation in the election of representatives of years. The term of office of Representatives shall the House of Representatives from national, commence on 12:00noon of June 30 next following regional, and sectoral parties or organizations or their election. (unless otherwise provided by law) coalitions thereof registered with the Commission on Elections. A Representative may not serve for more than 3 consecutive terms. However, he may serve for Reason for party-list system. It is hoped that the more than 3 terms provided that the terms are not system will democratize political power by consecutive. (1996 Bar Question) encouraging the growth of a multi-party system. Why three years? One purpose in reducing the 2. Party-list representatives term for three years is to synchronize elections, Ceiling. “The party-list representatives shall which in the case of the Senate are held at three- constitute 20% of the total number of year intervals (to elect one-half of the body) and in representatives.” Section 5(2) of Article VI is not the case of the President and Vice-President every mandatory. It merely provides a ceiling for party-list six years.152 seats in Congress. (Veterans Federation Party v. COMELEC) Voluntary renunciation of office for any length of time shall not be considered as an interruption in The 2% threshold requirement and the 3 seat-limit the continuity of his service for the full term for provided in RA 7941 are valid. Congress was which he was elected. vested with broad power to define and prescribe the mechanics of the party-list system of Abandonment of Dimaporo. The case of representation. Congress wanted to ensure that Dimaporo v. Mitra which held that “filing of COC for only those parties, organizations and coalitions a different position is a voluntary renunciation” has having sufficient number of constituents deserving been abandoned because of the Fair Elections Act. of representation are actually represented in Congress. (Veterans Federation Party v. Farinas case. The ruling case now is Farinas v. COMELEC) Executive Secretary which held that “filing of COC is not constitutive of voluntary renunciation for Computation elected officials.” The Court reiterated that “the prevailing formula for the computation of additional seats for party-list winners isK. Party List System the formula stated in the landmark case of Veterans.”Party-list system CIBAC v COMELEC, G.R. No. 172103 (2007)Party-list RepresentativesGuidelines No. of votes ofParties or organizations disqualified concerned party No. of AdditionalQualifications of a party-list nominee additional seats Seats for ____________ allocated to the=concerned Section 5. _ xfirst party party152 Cruz, Philippine Political law.I sweat, I bleed, I soar… 31Service, Sacrifice, Excellence
  • 32. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA (4) Able to read and write No. of votes (5) A bona fide member of the party or organization of first party which he seeks to represent for at least 90 days preceding the day of election (6) At least 25 years of age. (Ang Bagong Bayani v. COMELEC) 3. Guidelines on what organizations may apply Political Parties. Political parties may participate in the party-list system: in the party-list system (as long as they comply with (1) The parties or organizations must represent the guidelines in Section 5 of RA 7941.) (Ang the marginalized and underrepresented in Bagong Bayani v. COMELEC) Section 5 of RA 7941; (2) Political parties who wish to participate must Section 10 of RA 7941 provides that the votes cast comply with this policy; for a party which is not entitled to be voted for the (3) The religious sector may not be represented; party-list system should not be counted. The votes (4) The party or organization must not be they obtained should be deducted from the disqualified under Section 6 of RA 7941; canvass of the total number of votes cast for the (5) The party or organization must not be an party-list system. (Ang Bagong Bayani v. adjunct of or a project organized or an entity COMELEC) funded or assisted by the government; (6) Its nominees must likewise comply with the Religious sectors v. Religious leaders. There is requirements of the law; a prohibition of religious sectors. However, there is (7) The nominee must likewise be able to no prohibition from being elected or selected as contribute to the formulation and enactment of sectoral representatives. legislation that will benefit the nation. (Ang Bagong Bayani v. COMELEC, June 26, 2001) L. Legislative Districts Apportionment 4. Parties or organizations disqualified Reason for the Rule The COMELEC may motu propio or upon verified Reapportionment complaint of any interested party, remove or cancel Gerrymandering after due notice and hearing the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: Section 5 1. t is a religious sect or denomination, (3) Each legislative district shall organization or association organized for comprise, as far aspracticable, religious purposes; contiguous, compact and adjacent 2. It advocates violence or unlawful means to territory. Each city with a population seek its goal; of at least two hundred fifty 3. It is a foreign party or organization; thousand, or each province, shall 4. It is receiving support from any foreign have at least one representative. government, foreign political party, foundation, (4) Within three years following the organization, whether directly or through any return of every census, the of its officers or members or indirectly through Congress shall make a third parties for partisan election purposes; reapportionment of legislative 5. It violates or fails to comply with laws, rules or districts based on the standards regulations relating to elections. provided in this section. 6. It declares untruthful statements in its petition; 7. It has ceased to exist for at least one (1) year; 1. Apportionment 8. It fails to participate in the last two (2) Legislative districts are apportioned among the preceding elections or fails to obtain at least provinces, cities, and the Metropolitan Manila area. two per centum (2%) of the votes cast under the party-list system in the two (2) preceding Legislative districts are apportioned in accordance elections for the constituency in which it has with the number of their respect inhabitants and on registered. the basis of a uniform and progressive ratio. (art. 6 § 5) 5. Qualifications of a party-list nominee in RA 7941: Each city with a population of at least 250,000 shall (1) Natural-born citizen of the Philippines; have at least one representative. (2) Registered Voter; (3) Resident of the Philippines for a period of not Each province shall have at least one less than 1 year immediately preceding the representative. day of electionI sweat, I bleed, I soar… 32Service, Sacrifice, Excellence
  • 33. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA The question of the validity of an apportionment administer the oath to the winner. (Codilla v. De law is a justiciable question. (Macias v. Comelec) Venecia) 2. Reason for the rule. The underlying principle Disqualified “winner” behind the rule for apportionment (that The Court has also clarified the rule on who should representative districts are apportioned among assume the position should the candidate who provinces, cities, and municipalities in accordance received the highest number of votes is with the number of their respective inhabitants, and disqualified. The second in rank does not take his on the basis of a uniform and progressive ration.”) place. The reason is simple: “It is of no moment is the concept of equality of representation that there is only a margin of 768 votes between which is a basic principle of republicanism. One protestant and protestee. Whether the margin is man’s vote should carry as much weight as the ten or ten thousand, it still remains that protestant vote of every other man. did not receive the mandate of the majority during the elections. Thus, to proclaim him as the duly Section 5 provides that the House shall be elected representative in the stead of protestee composed of not more than 250 members unless would be anathema to the most basic precepts of otherwise provided by law. Thus, Congress itself republicanism and democracy as enshrined within may by law increase the composition of the HR. our Constitution.”153 (Tobias v. Abalos) Section 9. In case of vacancy in When one of the municipalities of a congressional the Senate or in the House of district is converted to a city large enough to entitle Representatives, a special election it to one legislative district, the incidental effect is may be called to fill such vacancy the splitting of district into two. The incidental in the manner prescribed by law, arising of a new district in this manner need not be but the Senator or Member of the preceded by a census. (Tobias v. Abalos) House of Representatives thus elected shall serve only for the 3. Reapportionment unexpired term. Reapportionment can be made thru a special law. Special election (Mariano v. COMELEC) A special election to fill in a vacancy is not mandatory. Correction of imbalance as a result of the increase in number of legislative districts must await the In a special election to fill a vacancy, the rule is that enactment of reapportionment law. (Montejo v. a statute that expressly provides that an election to COMELEC) fill a vacancy shall be held at the next general elections, fixes the date at which the special 4. Gerrymandering election is to be held and operates as the call for Gerrymandering is the formation of one legislative that election. Consequently, an election held at the district out of separate territories for the purpose of time thus prescribed is not invalidated by the fact favoring a candidate or a party. that the body charged by law with the duty of calling the election failed to do so. This is because Gerrymandering is not allowed. The Constitution the right and duty to hold the election emanate provides that each district shall comprise, as far as from the statue and not from any call for election by practicable, contiguous, compact and adjacent some authority and the law thus charges voters territory. with knowledge of the time and place of the election. (Tolentino v. COMELEC)M. Election1. Regular Election Special Election (R.A. 6645)2. Special Election 1. No special election will be called if vacancy occurs: Section 8. Unless otherwise a. at least eighteen (18) months before the provided by law, the regular next regular election for the members of election of the Senators and the the Senate; Members of the House of b. at least one (1) year before the next Representatives shall be held on regular election members of Congress the second Monday of May. 2. The particular House of Congress where vacancy occurs must pass either a resolution if Regular election Congress is in session or the Senate President A person holding office in the House must yield his or her seat to the person declared by the COMELEC to be the winner. The Speaker shall 153 Ocampo v. HRET, G.R. No. 158466. June 15, 2004.I sweat, I bleed, I soar… 33Service, Sacrifice, Excellence
  • 34. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA or the Speaker must sign a certification, if shall, in all offenses punishable by Congress is not in session, not more than six years a. declaring the existence of vacancy; imprisonment, be privileged from b. calling for a special election to be held arrest while the Congress is in within 45 to 90 days from the date of the session. No member shall be resolution or certification. questioned nor be held liable in any 3. The Senator or representative elected shall other place for any speech or serve only for the unexpired term. debate in the Congress or in any committee thereof.N. SalariesWhen increase may take effect A. Privilege from Arrest (Parliamentary Immunity ofReason fro the delayed effect of increased salary Arrest)Emoluments PrivilegeAllowances Purpose Scope Section 10. The salaries of Limitations Senators and Members of the Privilege is Personal House of Representatives shall be Trillanes Case determined by law. No increase in said compensation shall take effect 1. Privilege. A member of Congress is privileged until after the expiration of the full from arrest while Congress is in session in all term of all the members of the offenses (criminal or civil) not punishable by more Senate and the House of than 6 years imprisonment. Representatives approving such increase. 2. Purpose. Privilege is intended to ensure representation of the constituents of the member of 1. When increase may take effect. No increase in Congress by preventing attempts to keep him from the salaries of Senators and Representatives shall attending sessions.155 take effect until after the expiration of the full term of all the members of the Senate and House of 3. Scope. Parliamentary immunity only includes Representatives. the immunity from arrest, and not of being filed suit. 2. Reason for the delayed effect of increased 4. Limitations on Parliamentary Immunity salary. Its purpose is to place a “legal bar to the 1. Crime has a maximum penalty of not more legislators’ yielding to the natural temptation to than 6 years; increase their salaries. (PHILCONSA v. Mathay) 2. Congress is in session, whether regular or special; 3. Emoluments. Bernas submits that, by appealing 3. Prosecution will continue independent of to the spirit of the prohibition, the provision may be arrest; read as an absolute ban on any form of direct or 4. Will be subject to arrest immediately when indirect increase of salary (like emoluments). Congress adjourns. 4. Allowances. A member of the Congress may While in session. The privilege is available “while receive office and necessary travel allowances the Congress is in session,” whether regular or since allowances take effect immediately. Nor is special and whether or not the legislator is actually there a legal limit on the amount that may be attending a session. “Session” as here used does appropriated. The only limit is moral, because, not refer to the day-to-day meetings of the according to Section 20, the books of Congress are legislature but to the entire period from its initial audited by the Commission on Audit ‘which shall convening until its final adjournment.156 Hence the publish annually an itemized list of amounts paid privilege is not available while Congress is in and expenses incurred for each Member.154 recess. IV. PRIVILEGES OF MEMBERS Why not available during recess. Since theA. Privilege from Arrest purpose of the privilege is to protect the legislatorB. Parliamentary freedom of speech and debate against harassment which will keep him away from legislative sessions, there is no point in extending the privilege to the period when the Congress is Section 11. A Senator or Member not in session. of the House of Representatives 155 Cruz, Philippine Political Law.154 156 Bernas Commentary, p700. Cruz, Philippine Political Law.I sweat, I bleed, I soar… 34Service, Sacrifice, Excellence
  • 35. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA In a unanimous decision penned by Justice Carpio 5. Privilege is personal. Privilege is personal to Morales, the SC en banc junked Senator Antonio Trillanes’ each member of the legislature, and in order that petition seeking that he be allowed to perform his duties as a Senator while still under detention. SC barred Trillanes from its benefits may be availed of, it must be asserted attending Senate hearings while has pending cases, affirming at the proper time and place; otherwise it will be the decision of Makati Judge Oscar Pimentel. considered waived.157 The SC reminded Trillanes that “election to office does not obliterate a criminal charge”, and that his electoral victory Privilege not granted to Congress but to its only signifies that when voters elected him, they were already members. Privilege from arrest is not given to fully aware of his limitations. Congress as a body, but rather one that is granted The SC did not find merit in Trillanes’ position that his particularly to each individual member of it. (Coffin case is different from former representative Romeo Jalosjos, who also sought similar privileges before when he served as v. Coffin, 4 Mass 1)158 Zamboanga del Norte congressman even while in detention. Quoting parts of the decision on Jalosjos, SC said that Privilege is reinforced by Article 145 of the Revised “allowing accused-appellant to attend congressional sessions Penal Code-Violation of Parliamentary Immunity. and committee meetings five days or more a week will virtually make him a free man… Such an aberrant situation not only Note: The provision says privilege from arrest; it elevates accused appellant’s status to that of a special class, it does not say privilege from detention. would be a mockery of the purposes of the correction system.” The SC also did not buy Trillanes’ argument that he be given the same liberal treatment accorded to certain detention Q: Congressman Jalosjos was convicted for prisoners charged with non-bailable offenses, like former rape and detained in prison, asks that he be President Joseph Estrada and former Autonomous Region in allowed to attend sessions of the House. Muslim Mindanao (ARMM) governor Nur Misuari, saying these A: Members of Congress are not exempt emergency or temporary leaves are under the discretion of the from detention for crime. They may be authorities or the courts handling them. arrested, even when the House in session, The SC reminded Trillanes that he also benefited from for crimes punishable by a penalty of more these “temporary leaves” given by the courts when he was than six months. allowed to file his candidacy and attend his oath-taking as a senator before. The SC also believes that there is a “slight risk” that Q: Congressman X was convicted for a Trillanes would escape once he is given the privileges he is crime with a punishment of less than 6 asking, citing the Peninsula Manila incident last November. years. He asks that he be allowed to attend sessions of the House contending that the B. Privilege of Speech and Debate punishment for the crime for which he was Requirements convicted is less than 6 years. Purpose A: I submit that Congressman X can be Scope detained even if the punishment imposed is Privilege Not Absolute less than 6 years. The provision only speaks of privilege from arrest. It does not speak of 1. Isagani Cruz: 2 Requirements for the exemption from serving sentence after privilege to be availed of: conviction. Members of Congress are not 1. That the remarks must be made while the exempt from detention for crime.-asm legislature or the legislative committee is functioning, that is in session;159 (See Jimenez v. Q: Can the Sandiganbayan order the Cabangbang) preventive suspension of a Member of the 2. That they must be made in connection with the House of Representatives being prosecuted discharge of official duties.160 criminally for violation of the Anti-Graft and Corrupt Practices Act? But wait! As regards Requirement #1 provided by Cruz, Bernas Primer provides: to come A: Yes. In Paredes v. Sandiganbayan, the under the privilege, it is not essential that the Court held that the accused cannot validly Congress be in session when the utterance is argue that only his peers in the House of made. What is essential is that the utterance Representatives can suspend him because must constitute “legislative action.”161 the court-ordered suspension is a preventive measure that is different and distinct from Libelous remarks not in exercise of legislative the suspension ordered by his peers for function shall not be under privilege of speech. disorderly behavior which is a penalty. 1596. Trillanes Case (June 27, 2008) Cruz, Philippine Political Law p. 116 (1995 ed.); See Jimenez v. Cabangbang.157 160 Sinco, Philippine Political Law, p. 187, 10th ed. Cruz, Philippine Political Law p. 116 (1995 ed.).158 161 Sinco, Philippine Political Law, p. 187, 10th ed. Bernas Primer, p. 245 (2006 ed.)I sweat, I bleed, I soar… 35Service, Sacrifice, Excellence
  • 36. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA To invoke the privilege of speech, the matter must B. Prohibitions be oral and must be proven to be indeed privileged. A. Duty to disclose 2. Purpose. It is intended to leave legislator Section 12. All members of the unimpeded in the performance of his duties and Senate and the House of free form harassment outside.162 Representative shall, upon assumption of office, make a full Privilege of speech and debate enables the disclosure of their financial and legislator to express views bearing upon the public business interests. They shall notify interest without fear of accountability outside the the House concerned of a potential halls of the legislature for his inability to support his conflict of interest that may arise statements with the usual evidence required in the from the filing of a proposed court of justice. In other words, he is given more legislation of which they are leeway than the ordinary citizen in the ventilation of authors. matters that ought to be divulged for the public good.163 This provision speaks of duty to disclose the 164 following: 3. Scope: (1) The privilege is a protection only against (1) Financial and business interest upon forums other than the Congress itself. assumption of office (Osmena v. Pendatun) (2) Potential conflict of interest that may arise (2) “Speech or debate” includes utterances made from filing of a proposed legislation of which in the performance of official functions, such they are authors. as speeches delivered, statements made, votes cast, as well as bills introduced and other acts done in the performance of official B. Prohibitions (Disqualifications and Inhibitions) duties. (Jimenez v. Cabangbang) Prohibitions (3) To come under the privilege, it is not essential Disqualifications that the Congress be in session when the Prohibitions on lawyer-legislators utterance is made. What is essential is that the Conflict of interests utterance must constitute “legislative action”, that is, it must be part of the deliberative and Disqualifications communicative process by which legislators Section 13. No Senator or Member participate in committee or congressional of the House of Representatives proceedings in the consideration of proposed may hold any other office or legislation or of other matters which the employment in the government, or Constitution has placed within the jurisdiction any subdivision, agency, or of Congress. (Gravel v. US) instrumentality thereof, including (4) The privilege extends to agents of government-owned or controlled assemblymen provided that the “agency” corporation or their subsidiaries, consists precisely in assisting the legislator in during his term without forfeiting his the performance of “legislative action” (Gravel seat. Neither shall he be appointed v. US) to any office which may have been created or the emoluments thereof 4. Privilege not absolute. The rule provides that increased during the term for which the legislator may not be questioned “in any other he was elected. place,” which means that he may be called to account for his remarks by his own colleagues in the Congress itself and, when warranted, punished Section 14. No Senator or Member for “disorderly behavior.”165 of the House of Representatives may personally appear as counsel V. DUTY TO DISCLOSE; PROHIBITIONS before any court of justice or before the Electoral Tribunals, or quasi- judicial and other administrativeA. Duty to Disclose bodies. Neither shall he, directly or indirectly, be interested financially162 Bernas Primer, p. 245 (2006). in any contract with, or in any163 Cruz, Philippine Political Law. franchise or special privilege164 Bernas Primer, p. 245 (2006 ed.) granted by the Government, or any165 Cruz, Philippine Political Law; See Osmena v. Pendatun. subdivision, agency orI sweat, I bleed, I soar… 36Service, Sacrifice, Excellence
  • 37. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA instrumentality thereof, including Prohibition not absolute. The prohibition against any government-owned or the holding of an incompatible office is not controlled corporation, or its absolute; what is not allowed is the simultaneous subsidiary, during his term of office. holding of that office and the seat in Congress.166 He shall not intervene in any matter Hence, a member of Congress may resign in order before any office of the to accept an appointment in the government before Government for his pecuniary the expiration of his term.167 benefit or where he may be called upon to act on account of his office. When office not incompatible. Not every other office or employment is to be regarded as 1. Prohibitions: incompatible with the legislative position. For, example, membership in the Electroral Tribunals is Disqualifications permitted by the Constitution itself. Moreover, if it (1) To hold any other office or employment can be shown that the second office is an in the government, or any subdivision, extension of the legislative position or is in aid of agency, or instrumentality thereof, legislative duties, the holding thereof will not result including government-owned or controlled in the loss of the legislator’s seat in the corporation or their subsidiaries during Congress.168 his term without forfeiting his seat. (Incompatible office) Forbidden Office. (2) To be appointed to any office which Purpose. The purpose is to prevent trafficking in may have been created or the public office.169 The reasons for excluding persons emoluments thereof increased during the from office who have been concerned in creating term for which he was elected. (Forbidden them or increasing the emoluments are to take office) away as far as possible, any improper bias in the Prohibitions on lawyer-legislators vote of the representative and to secure to the (3) To personally appear as counsel before constituents some solemn pledge of his disinterestedness.170 any court of justice or before the Electoral Tribunals, or quasi-judicial and other Scope of prohibition. The provision does not administrative bodies. apply to elective offices, which are filled by the Conflict of Interests voters themselves. (4) To be interested financially, directly or indirectly, in any contract with, or in any The appointment of the member of the Congress to franchise or special privilege granted by the forbidden office is not allowed only during the the Government, or any subdivision, term for which he was elected, when such office agency or instrumentality thereof, was created or its emoluments were increased. including any government-owned or After such term, and even if the legislator is re- controlled corporation, or its subsidiary, elected, the disqualification no longer applies and during his term of office. he may therefore be appointed to the office.171 (5) To intervene in any matter before any office of the Government for his 3. Prohibition on lawyer legislators. pecuniary benefit or intervene in any matter before any office of the Purpose. The purpose is to prevent the legislator Government where he may be called from exerting undue influence, deliberately or not, upon to act on account of his office. upon the body where he is appearing.172 (6) See Section 10 Not a genuine party to a case. A congressman 2. Disqualifications may not buy a nominal account of shares in a corporation which is party to a suit before the SEC Incompatible Office and then appear in “intervention”. That which the Purpose. The purpose of prohibition of incompatible offices is to prevent him from owing 166 loyalty to another branch of the government, to the Cruz, Philippine Political Law. 167 detriment of the independence of the legislature Bernas Primer, p.246 (2006). and the doctrine of separation of powers. 168 Cruz, Philippine Political Law. 2 Kinds of Office under Article 13 169 Cruz, Philippine Political Law. 1) Incompatible office (1st sentence of article 13) 170 Mr. Justice Story quoted in Sinco, Philippine Political Law, p. 163 2) Forbidden office (2nd sentence of article 13) (1954). 171 Cruz, Philippine Political Law. 172 Cruz, Philippine Political Law.I sweat, I bleed, I soar… 37Service, Sacrifice, Excellence
  • 38. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Constitution directly prohibits may not be done by Section 15. The Congress shall indirection. (Puyat v. De Guzman) convene once every year on the fourth Monday of July for its regular Prohibition is personal. It does not apply to law session, unless a different date is firm where a lawyer-Congressman may be a fixed by law, and shall continue to member.173 The lawyer-legislator may still engage be in session for such number of in the practice of his profession except that when it days as it may determine until thirty come to trials and hearings before the bodies days before the opening of its next above-mentioned, appearance may be made not regular session, exclusive of by him but by some member of his law office.174 Saturdays, Sundays, and legal holidays. The President may call a Pleadings. A congressman cannot sign pleadings special session at any time. [as counsel for a client] (Villegas case) Regular session 4. Conflict of Interests Congress shall convene once every year for its regular session. Financial Interest Purpose. This is because of the influence they can Congress shall convene on the 4th Monday of July easily exercise in obtaining these concessions. The (unless a different date is fixed by law) until 30 idea is to prevent abuses from being committed by days (exclusive of Saturdays, Sundays and legal the members of Congress to the prejudice of the holidays) before the opening of the next regular public welfare and particularly of legitimate session. contractors with the government who otherwise might be placed at a disadvantageous position vis- Special session à-vis the legislator. A special session is one called by the President while the legislature is in recess. Contract. The contracts referred to here are those involving “financial interest,” that is, contracts from Mandatory recess. A mandatory recess is which the legislator expects to derive some profit at prescribed for the thirty-day period before the the expense of the government.175 opening of the next regular session, excluding Saturdays, Sundays and legal holidays. This is the Pecuniary Benefit. The prohibited pecuniary minimum period of recess and may be lengthened benefit could be direct or indirect and this would by the Congress in its discretion. It may however, cover pecuniary benefit for relatives. (Bernas be called in special session at any time by the Commentary, p. 710, 10th ed.) President. VI. INTERNAL GOVERNMENT OF CONGRESS The President’s call is not necessary in some instances: 1. When the Congress meets to canvass theSessions presidential electionsAdjournment 2. To call a special election when both theOfficers Presidency and Vice-Presidency are vacatedQuorum 3. When it decides to exercise the power ofInternal Rules impeachment where the respondent is theDisciplinary Powers President himself.176Legislative Journal and Congressional RecordEnrolled Bill Doctrine Q: May the President limit the subjects which may be considered during a special electionA. Sessions called by him?1. Regular A: No. The President is given the power to2. Special call a session and to specify subjects he3. Joint Sessions wants considered, but it does not empower him to prohibit consideration of other subjects. After all, Congress, if it so wishers, may stay in regular session almost all year173 Bernas Primer, p.247 (2006). round.177174 Cruz. Philippine Political Law.175 Joint Sessions Cruz, Philippine Political Law. Legislators cannot be members ofthe board of corporations with contract with the government. Such 176would be at least indirect financial interest. (Bernas Commentary, p. Cruz, Philippine Political Law, 177710, 10th ed.) Bernas Commentary, p.711, (2003 ed.)I sweat, I bleed, I soar… 38Service, Sacrifice, Excellence
  • 39. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA a. Voting Separately coordinative rule is necessary because the two i) Choosing the President (art. 7 §4) houses form only one legislative body.179 ii) Determine President’s disability (art. 7 §11) iii) Confirming nomination of the Vice-President C. Officers (art. 7 §9) iv) Declaring the existence of a state of war (art. Section 16. (1) The Senate shall 6 §23) elect its President and the House of v) Proposing constitutional amendments (art. 12 Representatives its Speaker, by a §1) majority vote of all its respective b. Voting Jointly Members. To revoke or extend proclamation suspending Each House shall choose such the privilege of the writ of habeas corps or other officers as it may deem placing the Philippines under martial law. (art 7 necessary. §18) Officers of the Congress: Instances when Congress votes other than (1) Senate President majority. (2) House Speaker a. To suspend or expel a member in accordance (3) Such other officers as each House may deem with its rules and proceedings: 2/3 of all its necessary. members (Sec. 16, Art. VI). b. Yeas and nays entered in the Journal: 1/5 of It is well within the power and jurisdiction of the the members present (Sec. 16(4), Art. VI) Court to inquire whether the Senate or its officials c. Declare the existence of a state of war: 2/3 of committed a violation of the Constitution or gravely both houses in joint session voting separately abused their discretion in the exercise of their (Sec. 23, Art. VI) functions and prerogatives. (Santiago v. Guingona) d. Re-passing of a bill after Presidential veto: 2/3 of the Members of the House where it The method of choosing who will be the other originated followed by 2/3 of the Members of officers must be prescribed by Senate itself. In the the other House. absence of constitutional and statutory guidelines e. Determining President’s disability after or specific rules, this Court is devoid of any basis submissions by both the Cabinet and the upon which to determine the legality of the acts of President: 2/3 of both Houses voting the Senate relative thereto. On grounds of respect separately (Sec. 11, Art. VII) for the basic concept of separation of powers, courts may not intervene in the internal affairs ofB. Adjournment the legislature; it is not within the province of courts to direct Congress how to do its work. (Santiago v. Section 16 Guingona) (5) Neither House during the session of the Congress shall, D. Quorum without the consent of the other, adjourn for more than three days, Section 16 nor to any other place than that in (2) A majority of each House shall which the two Houses shall be constitute a quorum to do business, sitting. but a smaller number may adjourn from day to day and may compel Either House may adjourn even without the the attendance of absent Members consent of the other provided that it will not be in such manner and under such more than three days. penalties, as such House may provide. If one House should adjourn for more than three days, it will need the consent of the other. Quorum to do business. A majority of each House shall constitute a quorum to do business. Neither house can adjourn to any other place than that in which the two Houses shall be sitting without Quorum is based on the proportion between those the consent of the other. physically present and the total membership of the body. Reason. These rules prevent each house from holding up the work of legislation. 178 This A smaller number may adjourn from day to day.178 179 Sinco, Philippine Political Law, p 170 (1954). Bernas Commentary, p.723, (2003 ed.)I sweat, I bleed, I soar… 39Service, Sacrifice, Excellence
  • 40. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA A smaller number may compel the attendance of Basis for punishment. Each House may punish absent members in such manner and under such its Members for disorderly behavior. penalties as the House may provide. Preventive Suspension v. Punitive Suspension. The members of the Congress cannot compel A congressman may be suspended as a preventive absent members to attend sessions if the reason of measure by the Sandiganbayan. The order of absence is a legitimate one. The confinement of a suspension prescribed by the Anti-Graft and Congressman charged with a non-bailable offense Corrupt Practices Act is distinct from the power of (more than 6 years) is certainly authorized by law congress to police its own ranks under the and has constitutional foundations. (People v. Constitution. The suspension contemplated in the Jalosjos) constitutional provisions is a punitive measure that is imposed upon determination by a House upon The question of quorum cannot be raised an erring member. The suspension spoken in repeatedly, especially when a quorum is obviously AGCPA is not a penalty but a preventive measure. present, for the purpose of delaying the business of The doctrine of separation of powers by itself may the House. (Arroyo v. De Venecia, June 26, 1998) not be deemed to have excluded members of Congress from AGCPA. The law did not excludeE. Internal Rules from its coverage the members of the CongressPower to determine rules and therefore the Sandiganbayan may decree aNature of the rules preventive suspension order. (Santiago v.Role of courts Sandiganbayan) (2002 Bar Question) Section 18 2/3 Requirement. Each House may with the (3) Each House may determine the concurrence of two-thirds of all its Members, rules of its proceedings, punish its suspend or expel a Member. Members for disorderly behavior, and with the concurrence of two- Period of suspension. A penalty of suspension, thirds of all its Members, suspend when imposed, shall not exceed sixty days. or expel a Member. A penalty of suspension, when imposed, shall Not subject to judicial review. Disciplinary action not exceed sixty days. 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 v. 1. Power to determine internal rules. Each Pendatun) House may determine the rules of its proceedings. 2. Nature of the Rules. The rules adopted by G. Legislative Journal and Congressional Record deliberative bodies (such as the House) are subject to revocation, modification, or waiver by the body Requirement adopting them. (Arroyo v. De Venecia) Journal Purpose of Journal The power to make rules is not one, once What may be excluded exercised is exhausted. It is a continuous power, Matters to be entered to the journal always subject to be exercised by the House, and Journal v. Extraneous Evidence within the limitations suggested and absolutely Record beyond the challenge of any other body. (Arroyo v. De Venecia) Section 18 (4) Each House shall keep a 3. Role of Courts. The Court may not intervene in Journal of its proceedings, and the implementation of the rules of either House from time to time publish the same, except if the rule affects private rights. On matters excepting such parts as may, in its affecting only internal operation of the legislature, judgment, affect national security; the legislature’s formulation and implementation of and the yeas and nays on any its rules is beyond the reach of the courts. When, question shall, at the request of however, the legislative rule affects private rights, one-fifth of the Members present, the courts cannot altogether be excluded. (US v. be entered in the Journal. Smith) Each House shall also keep a Record of its Proceedings.F. Disciplinary powers (suspension/expulsion) 1. Requirement. Each House shall keep a Journal of its proceedings, and from time to time publish the same.I sweat, I bleed, I soar… 40Service, Sacrifice, Excellence
  • 41. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA are conclusive of its due enactment. (Arroyo v. De 2. What is a journal? The journal is usually an Venecia) abbreviated account of the daily proceedings.180 A legislative journal is defined as “the official record Where the conference committee report was of what is ‘done and past’ in a legislative [body]. It approved by the Senate and the HR and the bill is is so called because the proceedings are entered enrolled, the SC may not inquire beyond the therein, in chronological order as they occur from certification and approval of the bill, and the day to day.181 enrolled bill is conclusive upon the judiciary (Phil. Judges Association v. Prado) 3. Purpose of the requirement that a journal be kept: 3. Underlying Principle of the Doctrine. Court is (1) To insure publicity to the proceedings of the bound under the doctrine of separation of legislature, and a correspondent responsibility powers by the contents of a duly authenticated of the members of their respective measure of the legislature. (Mabanag v. Lopez constituents; and Vito, Arroyo v. De Venecia) (2) To provide proof of what actually transpired in the legislature. (Field v. Clark) 4. Enrolled bill vs. Journal Entry: The enrolled bill is the official copy of approved legislation and 4. What may be excluded. The Constitution bears the certification of the presiding officers of exempts from publication parts which in the the legislative body. The respect due to a co-equal judgment of the House affect national security. department requires the courts to accept the certification of the presiding officer as conclusive 5. Matters which, under the Constitution, are to assurance that the bill so certified is authentic. be entered in the journal: (Casco Philippine Chemical Co. v. Gimenez) 1. Yeas and nays on third and final reading of a However, If the presiding officer should repudiate bill. his signature in the “enrolled bill”, the enrolled will 2. Veto message of the President not prevail over the Journal. This is because the 3. Yeas and nays on the repassing of a bill enrolled bill theory is based mainly on the respect vetoed by the President due to a co-equal department. When such co-equal 4. Yeas and nays on any question at the request department itself repudiates the enrolled bill, then of 1/5 of members present the journal must be accepted as conclusive. 6. Journal vs. Extraneous evidence. The Journal 5. Enrolled bill v. Matters required to be entered is conclusive upon the Courts (US v. Pons) in the journals. The Supreme Court has explicitly left this matter an open question in Morales v. 7. What is a Record? The Record contains a word Subido.183 for word transcript of the deliberation of Congress.182 6. Remedy for Mistakes. If a mistake was made in printing of the bill before it was certified byH. Enrolled bill doctrine Congress and approved by the President, theEnrolled Bill remedy is amendment or corrective legislation, notEnrolled Bill Doctrine judicial decree. (Casco (Phil) Chemical Co.Underlying Principle Gimenez)Enrolled Bill v. Journal EntryEnrolled bill v. matters required to be entered in the VII. Electoral Tribunals, CAjournalsRemedy for Mistakes Electoral Tribunal 1. Enrolled Bill. One which has been duly CA introduced, finally passed by both houses, signed Constitution of ET and CA by the proper officers of each, approved by the [president]. (Black Law Dictionary) A. Electoral Tribunal Electoral Tribunals 2. Enrolled bill doctrine: The signing of a bill by Composition the Speaker of the House and the Senate Rationale President and the certification by the secretaries of Independence both Houses of Congress that such bill was passed 183 Bernas Primer, p. 251 (2006 ed.); Cruz in his book says: “But180 except only where the matters are required to be entered in the Bernas Commentary, p.723, (2003 ed.)181 journals, the contents of the enrolled bill shall prevail over those of Sinco, Philippine Political Law 191, (1954). the journal in case of conflict. (Page 129 Philippine Political Law182 Bernas Commentary, p.723, (2003 ed.) (1995 ed).I sweat, I bleed, I soar… 41Service, Sacrifice, Excellence
  • 42. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERASecurity of Tenure greatly responsible for the respect and confidencePower people have in courts.185Jurisdiction of ETJurisdiction of COMELEC Chairman. The senior Justice in the electoralJudicial Review tribunal shall be its Chairman. Section 17. The Senate and the SET cannot legally function absent its entire House of Representatives shall membership of senators, and no amendment of its each have an Electoral Tribunal rules can confer on the 3 remaining justice- which shall be the sole judge of all members alone, the power of valid adjudication of contests relating to the election, senatorial election contest. (Abbas v. SET) returns, and qualifications of their respective Members. Each 4. Independence. The Congress may not regulate electoral tribunal shall be the actions of the electoral tribunals even in composed of nine members, three procedural matters. The tribunal is an independent of whom shall be Justices of the constitutional body. (Angara v. Electoral Supreme Court to be designated by Commission) the Chief Justice, and the remaining six shall be members of 5. Security of Tenure. Members of ET have the Senate or the House of security of tenure. Disloyalty to the party is not a Representatives, as the case may ground for termination. (Bondoc v. Pineda) (2002 be, who shall be chosen on the Bar Question) basis of proportional representation from the political parties and the 6. Power. The Electoral Tribunal shall be the sole parties or organizations registered judge of all contests relating to the election, under the party-list system returns, and qualifications of their respective represented therein. The senior members. justice in the Electoral tribunal shall The tribunal has the power to promulgate rules be its Chairman. relating to matters within its jurisdiction, including period for filing election protests. (Lazatin v. HET) 1. Two Electoral Tribunals. The Senate and the Electoral Tribunal has incidental power to House of Representatives shall each have an promulgate its rules and regulations for the proper Electoral Tribunal exercise of its function (Angara v. Electoral Commission) 2. Composition of ET Each electoral tribunal shall be composed of 9 7. Jurisdiction of Electoral Tribunal members. 3 from the SC (to be designated by the The Electoral Tribunal shall be the sole judge of all CJ) and 6 from the respective House. contests relating to the election, returns, and qualifications of their respective members. 3. Why create an electoral tribunal independent from Congress. It is believed that this system The jurisdiction of HRET is not limited to tends to secure decisions rendered with a greater constitutional qualifications. The word degree of impartiality and fairness to all parties. It “qualifications” cannot be read to be qualified by also enables Congress to devote its full time to the the term “constitutional”. Where the law does not performance of its proper function, which is distinguish, the courts should likewise not. The legislation, rather than spend part of its time acting filing of a certificate of candidacy is a statutory as judge of election contests.184 qualification.(Guerrero v. COMELEC) Proportional Representation. The congressmen Where a person is contesting the proclamation of a who will compose the electoral tribunal shall be candidate as senator, it is SET which has exclusive chosen on the basis of proportional representation jurisdiction to act. (Rasul v. COMELEC) from the political and party-list parties. Contest after proclamation is the jurisdiction of Reason for Mixed Membership. The presence of HRET (Lazatin v. COMELEC) justices of the Supreme Court in the Electoral Tribunal neutralizes the effects of partisan When there is an election contest (when a influences in its deliberations and invests its action defeated candidate challenge the qualification and with that measure of judicial temper which is claims the seat of a proclaimed winner), the Electoral Tribunal is the sole judge.184 185 Sinco, Philippine Political Law, p.158 (1954). Sinco, Philippine Political Law, p.158 (1954).I sweat, I bleed, I soar… 42Service, Sacrifice, Excellence
  • 43. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Errors that may be verified only by the opening of within the exclusive jurisdiction of the COMELEC ballot boxes must be recoursed to the electoral en banc. (Codilla v. De Venecia) tribunal. It is the COMELEC which decides who the winner Once a winning candidate has been proclaimed, is in an election. A person holding office in the taken his oath and assumed office as a member of House must yield his or her seat to the person the House, COMELEC’s jurisdiction over election declared by the COMELEC to be the winner and contest relating to his election, returns and the Speaker is duty bound to administer the oath 188. qualifications ends, and the HRET’s own The Speaker shall administer the oath on the jurisdiction begins. (Aggabao v. COMELEC) winner. Nature of election contests. An election is not like In election contests, however, the jurisdiction of the an ordinary action in court. Public interests rather COMELEC ends once a candidate has been than purely private ones are involved in its proclaimed and has taken his oath of office as a determination.186 It is therefore not permissible that Member of Congress. Jurisdiction then passes to such a contest be settled by stipulation between the Electoral Tribunal of either the House or the the parties, nor can judgment be taken by default; Senate.189 but the case must be decided after thorough investigation of the evidence.187 9. Judicial Review SC may intervene in the creation of the electoral Absence of election contest. In the absence of tribunal. SC may overturn the decisions of HRET an election contest, however, the electoral tribunals when there is GADLJ. (Lerias v. HRET) are without jurisdiction. Thus, the power of each House to defer oath-taking of members until final Judicial review of decisions or final resolutions of determination of election contests filed against the electoral tribunals is possible only in the them has been retained by each House. (Angara v. exercise of the Court’s so called extra-ordinary Electoral Commission) jurisdiction upon a determination that the tribunal’s decision or resolution was rendered without or in Invalidity of Proclamation. An allegation of excess of jurisdiction or with grave abuse of invalidity of a proclamation is a matter that is discretion constituting denial of due process. addressed to the sound discretion of the Electoral (Robles v. HET) Tribunal. (Lazatin v. COMELEC) Q: Are the decisions rendered by the Motion to Withdraw. The motion to withdraw does Electoral Tribunals in the contests of which not divest the HRET the jurisdiction on the case. they are the sole judge appealable to the (Robles v. HRET) Supreme Court? A: No. The decisions rendered by the 8. Jurisdiction of COMELEC Electoral Tribunals in the contests of which Pre-proclamation controversies include: they are the sole judge are not appealable to (1) Incomplete returns (omission of name or the Supreme Court except in cases of a votes) clear showing of a grave abuse of (2) Returns with material defects discretion. (3) Returns which appeared to be tampered with, falsified or prepared under duress or B. Commission on Appointments containing discrepancies in the votes (with Function of CA significant effect on the result of election) Composition Proportional Representation “Where a petitioner has seasonably filed a motion Fractional Seats for reconsideration of the order of the Second Voting Division suspending his proclamation and Action on Appointments disqualifying him, the COMELEC was not divested Ad Interim Appointments not acted upon of its jurisdiction to review the validity of the order Ruling of the Second Division. The order of the Second division is unenforceable as it had not attained Section 18. There shall be a finality. It cannot be used as the basis for the Commission on Appointments assumption to office of respondent. The issue of consisting of the President of the the validity of the order of second division is still Senate, as ex-officio Chairman, 188 Codilla v. de Venecia, G.R. No. 150605. December 10, 2002.186 Sinco, Philippine Political Law, p.161 (1954). 189 Aggabao v. Comelec, G.R. No. 163756. January 26, 2005;187 Reinsch,, American Legislature, p 216. Vinzons-Chato v. Comelec, GR 172131, April 2, 2007.I sweat, I bleed, I soar… 43Service, Sacrifice, Excellence
  • 44. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA twelve Senators and twelve 7. Ad interim appointments not acted upon. Ad Members of the House of interim appointments not acted upon at the time of Representatives, elected by each the adjournment of the Congress, even if the thirty- House on the basis of proportional day period has not yet expired, are deemed by- representation from the political passed under Article VII, Section 16. parties and parties or organizations registered under the party-list 8. Ruling. The Commission shall rule by a majority system represented therein. The vote of all its Members. Chairman of the Commission shall not vote, except in the case of a tie. C. Constitution of ET and CA The Commission shall act on all Organization appointments submitted to it within Reason for early organization of ETs thirty session days of the Congress Reason of provision on CA from the submission. The CA Meeting Commission shall rule by a majority vote of all its Members. Section 19. The Electoral Tribunals and the Commission on 1. Function of CA. It acts as a legislative check on Appointments shall be constituted the appointing authority of the President. For the within thirty days after the Senate effectivity of the appointment of certain key and the House of Representatives officials, the consent of CA is needed. shall have been organized with the election of the President and the 2. Composition (25 members) Speaker. The Commission on (1) Senate President as chairman Appointments shall meet only while (2) 12 senators the Congress is in session, at the (3) 12 members of HR call of its Chairman or a majority of all its members, to discharge such 3. Proportional Representation. The members of powers and functions as are herein the Commission shall be elected by each House on conferred upon it. the basis of proportional representation from the political party and party list. 1. Organization. The ET and COA shall be constituted within 30 days after the Senate and the The sense of the Constitution is that the House shall have been organized with the election membership in the Commission on Appointment of the President and the Speaker. must always reflect political alignments in Congress and must therefore adjust to changes. It 2. Reason for Early organization of ETs. In the is understood that such changes in party affiliation case of Electoral Tribunals, the need for their early must be permanent and not merely temporary organization is obvious, considering the rash of alliances (Daza v. Singson) election contests already waiting to be filed after, even before, the proclamation of the winners. This Endorsement is not sufficient to get a seat in COA. is also the reason why, unlike the Commission of (Coseteng v. Mitra) Appointments, the Electoral Tribunals are supposed to continue functioning even during the 4. Fractional Seats. Fractional seats cannot be recess.190 rounded off. The seats should be vacant. (Coseteng v. Mitra) A full complement of 12 3. Reason, provision on COA. The provision is members from the Senate is not mandatory based on the need to enable the President to (Guingona v. Gonzales) Holders of .5 proportion exercise his appointing power with dispatch in belonging to distinct parties may not form a unity coordination with the Commission on for purposes of obtaining a seat in the Appointments. Commission. (Guingona v. Gonzales) The rule that the Commission on Appointments can meet only during the session of the Congress is the 5. Voting. The Chairman shall not vote except in reason why ad interim appointments are permitted the case of a tie. under the Constitution. These appointments are made during the recess, subject to consideration 6. Action on appointments. The Commission later by the Commission, for confirmation or shall act on all appointments submitted to it within rejection. 30 session days of the Congress from the But where the Congress in is in session, the submission. President must first clear his nominations with the 190 Cruz, Philippine Political Law.I sweat, I bleed, I soar… 44Service, Sacrifice, Excellence
  • 45. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Commission on Appointments, which is why it must Ermita) heads. be constituted as soon as possible. Unless it is Subject Matter organized, no appointment can be made by the Any mattes for purpose of Matters related to the President in the meantime.191 legislation department only Obligatory force of appearance 4. COA meeting Mandatory Discretionary The Commission on Appointments shall meet only while the Congress is in session to discharge its A. Inquiries in Aid of Legislation powers and functions. Who has the power Nature The Commission on Appointments shall meet at Limitation of Power the call of its Chairman or a majority of all its Reason for Limitation members Scope of Questions Who may be summoned VIII. RECORDS AND BOOKS OF ACCOUNTS Power to Punish Rights of Persons Courts and Committee Section 20. The records and books Power of Inquiry v. Executive Privilege of accounts of the Congress shall Neri v. Senate Committee be preserved and be open to the public in accordance with law, and Section 21. The Senate or the such books shall be audited by the House of Representatives or any of Commission on Audit which shall its respective committees may publish annually an itemized list of conduct inquiries in aid of amounts paid to and expenses legislation in accordance with its incurred for by each Member. duly published rules of procedure. The rights of persons appearing in Records and books of accounts or affected by such inquiries shall The records and books of accounts of the be respected. Congress shall be preserved and be open to the public in accordance with law. Power of Inquiry The records and books of accounts of the 1. Who has the power Congress shall be audited by the Commission on The Senate or the House of Representatives or Audit. any of its respective committees may conduct inquiries in aid of legislation. The Commission on Audit shall publish annually an itemized list of amounts paid to and expenses 2. Nature incurred for by each Member. The power of inquiry is an essential and appropriate auxiliary to the legislative action. IX. LEGISLATIVE HEARINGS (Arnault v. Nazareno) It has been remarked that the (INQUIRIES AND OVERSIGHT FUNCTIONS) power of legislative investigation may be implied from the express power of legislation and does not itself have to be expressly granted.192A. Inquiries in Aid of LegislationB. Oversight Functions 3. Limitations193: There are two provisions on legislative hearing, 1. It must be in aid of legislation194 Sections 21 and 22. Section 21 is about legislative 2. It must be in accordance with its duly investigations in aid of legislation. published rules of procedure195Section 21. Legislative Section 22. OversightInvestigation Function 192 Cruz, Philippine Political Law, p. 155 (1995 ed). Who may appear 193 See Concurring Opinion of Justice Corona in Neri v. SenateAny person Department heads Committee; See also Bernas Commentary, p737 (2003 ed). Who may be summoned 194 This requirement is an essential element for establishingAnyone except the No one. Each house may jurisdiction of the legislative body.President and SC only request the 195 Section 21 may be read as requiring that Congress must havemembers (Senate v. appearance of department “duly published rules of procedure” for legislative investigations. Violation of these rules would be an offense against due process.191 Cruz, Philippine Political Law. (Bernas Commentary p. 740 (2003 ed).I sweat, I bleed, I soar… 45Service, Sacrifice, Excellence
  • 46. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 3. The rights of persons appearing in or affected 2. Physical assault upon its members for action by such inquiries shall be respected. taken or words spoken in the body; 4. Power of Congress to commit a witness for 3. Obstruction of its officers in the performance of contempt terminates when the legislative body their official duties ceases to exist upon its final adjournment.196 4. Prevention of members from attending so that (Note: 1-3 are explicit limitations while 4 is an their duties might be performed implicit limitation.) 5. Contumacy in refusing to obey orders to produce documents or give testimony 4. Reason for the limitations which was a right to compel.201 The reason is in the past, this power was much abused by some legislators who used it for Power to punish for contempt and local illegitimate ends to browbeat or intimidate legislative bodies. The power to punish may not witnesses usually for grandstanding purposes only. be claimed by local legislative bodies (Negros There were also times when the subject of inquiry Oriental Electric Cooperative v. Sangguniang was purely private in nature and therefore outside Panglunsod) the scope of the powers of Congress.197 Power to punish is sui generis. The exercise of 5. Scope of questions the legislature of contempt power is a matter of It is not necessary that every question propounded preservation and independent of the judicial to a witness must be material to a proposed branch. Such power is sui generis. (Sabio v. legislation. (Arnault v. Nazareno) This is because Gordon) the legislative action is determined by the information gathered as a whole. (Arnault v. Q: When may a witness in an investigation Nazareno) be punished for contempt? A: When a contumacious witness’ testimony 6. Who may be summoned under Section 21 is required in a matter into which the Senate v. Ermita198 specified who may and who legislature or any of its committees has may not be summoned to Section 21 hearings. jurisdiction to. (In short, the investigation Thus, under this rule, even a Department Head must be in aid of legislation.) (Arnault v. who is an alter ego of the President may be Nazareno) summoned. Thus, too, the Chairman and members of the Presidential Commission on Good Q: For how long may a private individual be Government (PCGG) are not except from imprisoned by the legislature for contempt? summons in spite of the exemption given to them A: For HR: Until final adjournment of the by President Cory Aquino during her executive body. For Senate: Offender could be rule.199 The Court ruled that anyone, except the imprisoned indefinitely by the body provided President and Justices of the Supreme Court that punishment did not become so long as may be summoned. to violate due process. (Arnault v. Nazareno) 7. Power to punish 8. Rights of persons PhilComStat has no reasonable expectation of Legislative Contempt. The power of investigation privacy over matters involving their offices in a necessarily includes the power to punish a corporation where the government has interest. contumacious witness for contempt. (Arnault v. (Sabio v. Gordon) Nazareno) 9. Courts and the Committee Acts punished as legislative contempt. The US A court cannot enjoin the appearance of a witness Supreme Court in the case of Marshall v. Gordon200 in a legislative investigation. (Senate Blue Ribbon mentions: Committee v. Judge Majaducon) 1. Physical obstruction of the legislative body in Bernas: The general rule of fairness, (which is what the discharge of its duties. due process is about) could justify exclusion of persons from appearance before the Committee.196 This must be so inasmuch as the basis of the power to impose Q: Section 1 of EO 464 provides that “allsuch a penalty is the right which the Legislature has to self- heads of departments of the Executivepreservation, and which right is enforceable during the existence of Branch shall secure the consent of thethe legislative body. (CJ Avancena in Lopez v De los Reyes)197 President prior to appearing before House Cruz, Philippine Political Law, p. 155 (1995 ed).198 of Congress.” Does this contravene the G.R. No. 169777, April 20, 2006.199 Sabio v. Gordon, G.R. No. 174318, October 17, 2006.200 201 243 US 521. Sinco, Philippine Political Law, p 208 (1954ed).I sweat, I bleed, I soar… 46Service, Sacrifice, Excellence
  • 47. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA power of inquiry vested in the Congress? Senate cited him in contempt and ordered his arrest, Is Section 1 valid? Neri filed a case against the Senate with the A: Valid. The SC read Section 1 of EO Supreme Court. On March 25, 2008, the Supreme Court ruled in favor of Neri and upheld the claim of 464 to mean that department heads need executive privilege. the consent of the president only in Issues: question hour contemplated in Section (1) xxx 22 of Article VI. (The reading is dictated by (2) Did the Senate Committees commit grave the basic rule of construction that abuse of discretion in citing Neri in contempt and issuances must be interpreted,as much as ordering his arrest? possible, in a way that will render it Ruling: constitutional.) (1) xxx (2) Yes. The Supreme Court said that the Senate Committees committed grave abuse of discretion Section 1 of EO 464 cannot be applied to in citing Neri in contempt. The following were the appearances of department heads in reasons given by the Supreme Court: inquiries in aid of legislation. Congress a. There was a legitimate claim of executive is not bound in such instances to respect privilege. the refusal of the department head in such b. Senate Committees did not comply with inquiry, unless a valid claim of privilege the requirement laid down in Senate v. is subsequently made, either by the Ermita that the invitations should contain President or by the Executive Secretary. the “possible needed statute which (Senate v. Ermita; EO 464 case) prompted the need for the inquiry” along with “usual indication of the subject of 10. Power of Inquiry v. Executive Privilege inquiry and the questions relative to and in furtherance thereof.” Senate v. Ermita: “Congress has undoubtedly has c. A reading of the transcript of the a right to information from the executive branch Committees’ proceeding reveals that only whenever it is sought in aid of legislation. If the a minority of the member of the Senate executive branch withholds such information on the Blue Ribbon Committee was present ground that it is privileged, it must so assert it during the deliberations Thus, there is a and state the reason therefore and why it must cloud of doubt as to the validity of the be respected.” (Justice Carpio Morales in Senate contempt order v. Ermita) d. The Senate Rules of Procedure in aid of legislation were not duly published in Neri v. Senate: Was the claim of executive accordance to Section 21 of Article VI. privilege properly invoked in this case? Yes e. The contempt order is arbitrary and according to the Justice Leonardo-De Castro’s precipitate because the Senate did not first ponencia. For the claim to be properly invoked, rule on the claim of executive privilege and there must be a formal claim by the President instead dismissed Neri’s explanation as stating the “precise and certain reason” for unsatisfactory. This is despite the fact that Neri is not an unwilling witness. preserving confidentiality. The grounds relied upon Hence, the Senate order citing Neri in contempt and by Executive Secretary Ermita are specific enough, ordering his arrest was not valid. since what is required is only that an allegation be made “whether the information demanded involves B. Oversight Function military or diplomatic secrets, closed-door Cabinet Purpose of Section 22 meetings, etc.” The particular ground must only be Oversight Function specified, and the following statement of grounds Appearance of Heads of Department by Executive Secretary Ermita satisfies the Why Permission of President Needed requirement: “The context in which executive Exemption from Summons privilege is being invoked is that the information Appearance at the Request of Congress sought to be disclosed might impair our diplomatic Written Questions as well as economic relations with the People’s Scope of Interpellations Republic of China.”202 Executive Session Congress may refuse the initiative 11. Neri v. Senate Committee Background: This case is about the Senate investigation of Section 22. The Heads of anomalies concerning the NBN-ZTE project. During Departments may upon their own the hearings, former NEDA head Romulo Neri initiative, with the consent of the refused to answer certain questions involving his President, or upon the request of conversations with President Arroyo on the ground either House as the rules of each they are covered by executive privilege. When the House shall provide, appear before and be heard by such House on202 Primer on Neri v. Senate made by Atty. Carlos Medina. any matter pertaining to theirI sweat, I bleed, I soar… 47Service, Sacrifice, Excellence
  • 48. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA departments. Written questions It should be noted, that the exemption from shall be submitted to the President summons applies only to Department Heads and of Senate or the Speaker of the not to everyone who has Cabinet rank. House of Representatives at least three days before their scheduled Q: Does Section 22 provide for a appearance. Interpellations shall “question hour”? not be limited to written questions, A: but may cover matters related thereto. When the security of the Bernas Primer: No. the “question hour” is State or the public interest so proper to parliamentary system where there requires and the President so is no separation between the legislative and states in writing, the appearance executive department. Section 22, unlike in shall be conducted in executive the “question hour” under the 1973 session. Constitution, has made the appearance of department heads voluntary. 1. Purpose of Section 22 But wait! The SC in Senate v. Ermita, The provision formalizes the “oversight function” of adopting the characterization of Congress. Section 22 establishes the rule for the constitutional commissioner Hilario Davide, exercise of what is called the “oversight function” of calls Section 22 as the provision on Congress. Such function is intended to enable “Question Hour”:“[Section 22] pertains to Congress to determine how laws it has passed are the power to conduct a question hour, the being implemented. objective of which is to obtain information in pursuit of Congress’ oversight function.” 2. Oversight function “Broadly defined, congressional oversight Reconcile: Although the Court decision calls embraces all activities undertaken by Congress to this exercise a “question hour,” it does so enhance its understanding of and influence over only by analogy with its counterpart in the implementation of legislation it has enacted.”203 parliamentary practice. The acts done by Congress in the exercise of its oversight powers may be divided into three categories, to wit: scrutiny, investigation, and 6. Appearance at the request of Congress supervision.204 The Heads of Departments may upon their own initiative, with the consent of the President, or 3. Appearance of Heads of Departments by upon the request of either House as the rules of their own initiative each House shall provide, appear before and be The Heads of Departments may upon their own heard by such House on any matter pertaining to initiative, with the consent of the President their departments. appear before and be heard by either House on any matter pertaining to their departments. 7. Written Questions Written questions shall be submitted to the Senate 4. Why permission of the President needed President or the House Speaker at least 3 days In deference to separation of powers, and because before their scheduled appearance. Department Heads are alter egos of the President, they may not appear without the permission of the 8. Scope of Interpellations President.205 Interpellations shall not be limited to written questions, but may cover matters related thereto. 5. Exemption from summons applies only to Department Heads 9. Executive Session The appearance shall be conducted in executive session when: (1) The public interest so requires203 Macalintal v. Commission on Elections, 405 SCRA 614 (2) The President so states in writing.(2003), at 705.204 10. Congress may refuse the initiative Macalintal v. Commission on Elections, 405 SCRA 614 (2003),at 3. Because of separation of powers, department205 This was explicitly mentioned in the deliberations of the 1935 secretaries may not impose their appearance uponConstitutional Convention where some Delegates had doubts aboutthe propriety or constitutionality of Department Heads appearing inCongress. Such deference is not found, by the Court’s interpretation,in Section 21.I sweat, I bleed, I soar… 48Service, Sacrifice, Excellence
  • 49. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA either House.206 Hence, the Congress may refuse Section 23 the initiative taken by the department secretary.207 (2) In times of war or other national emergency, the Congress may by X. Emergency Powers law authorize the President, for a limited period and subject to such restrictions as it may prescribe, toA. Declaration of the existence of a state of war exercise powers necessary andB. Delegation of emergency power proper to carry out a declared national policy. Unless soonerA. War power withdrawn by resolution of the1. Power to declare existence of a state of war Congress, such power shall cease2. Rewording of the provision upon the next adjournment thereof. Section 23. (1) The Congress, by a 1. Requisites for the delegation: (1997 Bar Q) vote of two-thirds of both Houses in joint session assembled, voting (1) There must be a war212 or other national separately, shall have the sole emergency power to declare the existence of a (2) Law authorizing the president for a limited state of war. period and subject to such restrictions as Congress may prescribe 1. Power to declare existence of a state of (3) Power to be exercised must be necessary and war208 proper to carry out a declared national policy. The Congress, by a vote of 2/3 of both Houses in 2. Duration of the delegation: joint session assembled, voting separately, shall have the sole power to declare the existence of a (1) Until withdrawn by resolution of Congress state of war. (2) Until the next adjournment of Congress 2. Rewording of the provision 3. Powers that may be delegated From 1935 Constitution’s power to declare war209 to Congress may authorize the President, to exercise power to declare the existence of a state of war powers necessary and proper to carry out a under 1987. declared national policy Note that the nature of Bernas: The difference between the two delegable power is not specified. It is submitted phraseologies is not substantial but merely in that the President may be given emergency emphasis. The two phrase were interchangeable, legislative powers if Congress so desires.213 but the second phrase emphasizes more the fact that the Philippines, according to Article II, Section 4. Withdrawal of powers 2, renounces aggressive war as an instrument of Congress may do it by a mere resolution.214 And national policy.210 such resolution does not need presidential approval.215 Q: May a country engage in war in the absence of declaration of war? XI. BILLS/ LEGISLATIVE PROCESS A: Yes. The actual power to make war is lodged in the Executive. The executive when necessary may make war even in the Origination Clause absence of a declaration of war.211 One bill-one subject rule Passage of a billB. Delegation of emergency powers Presidential Approval, Veto or Inaction; Legislative Reconsideration1. Requisites for Delegation Item Veto2. Duration of delegation Doctrine of inappropriate provisions3. Powers that may be delegated Executive Impoundment4. Withdrawal of powers Legislative Veto A. Origination Clause206 Bernas Primer at 263 (2006 ed.)207 Bernas Commentary, p 744 (2003 ed). 212 War is defined as “armed hostilities between the two states. (II208 War is defined as “armed hostilities between the two states. (II RECORD 169)RECORD 169) 213 Bernas Primer at 265 (2006 ed.)209 Wording of the 1935 Constitution. 214 See concurring opinion of Justice Padilla in Rodriguez v. Gella,210 Bernas Commentary, p 745 (2003 ed). 49 Off. Gaz. 465, 472.211 215 Bernas Primer at 264 (2006 ed.) Bernas Primer at 265 (2006 ed.)I sweat, I bleed, I soar… 49Service, Sacrifice, Excellence
  • 50. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERAExclusive Origination Clause law will be passed. (Tolentino v. Secretary ofBills that must exclusively originate from HR Finance)Origination from the House, MeaningReason for exclusive origination 4. Reason for exclusive originationSenate may propose amendments The district representatives are closer to the pulseScope of Senate’s power to introduce amendments of the people than senators are and are therefore in a better position to determine both the extent of Section 24. All appropriation, the legal burden they are capable of bearing and revenue or tariff bills, bills the benefits that they need.222 It is more numerous authorizing increase of the public in membership and therefore also more debt, bills of local application and representative of the people.223 private bills shall originate exclusively in the House of 5. Senate may propose amendments Representatives, but the Senate The addition of the word “exclusively” in the may propose or concur with Constitution is not intended to limit the power of the amendments. Senate to propose amendments to revenue bills. (Tolentino v. Sec. of Finance) 1. Origin of money bills, private bills and bills of local application 6. Scope of the Senate’s power to introduce All appropriation216, revenue217 or tariff bills218, bills amendments authorizing increase of the public debt219, bills of Once the House has approved a revenue bill and local application220 and private bills221 shall originate passed it on to the Senate, the Senate can exclusively in the House of Representatives, but completely overhaul it, by amendment of parts or the Senate may propose or concur with by amendment by substitution, and come out amendments. with one completely different from what the House approved. Textually, it is the “bill” which 2. Bills that must exclusively originate from the must exclusively originate from the House; but the HR: “law” itself which is the product of the total (1) Appropriation bills bicameral legislative process originates not just (2) Revenue bills from the House but from both Senate and House. (3) Tariff bills (Tolentino v. Secretary of Finance) (4) Bills authorizing increase of the public debt (5) Bills of local application (Discussion of Section 25 can be found after Section (6) Private bills 29(3)) 3. Origination from the House B. One bill-one subject rule The exclusivity of the prerogative of the House of Mandatory Nature of the Rule Representatives means simply that the House Purpose of the Rule alone can initiate the passage of revenue bill, such Liberal Interpretation of the Rule that, if the House does not initiate one, no revenue Germane Not Germane216 An appropriation bill is one whose purpose is to set aside a sum of Section 26. (1) Every bill passedmoney for public use. Only appropriation bills in the strict sense of by the Congress shall embracethe word are comprehended by the provision; bills for other purposes only one subject shall bewhich incidentally set aside money for that purpose are not included. expressed in the title thereof.Bernas Commentary, p 748 (2003 ed).217 A revenue bull is one that levies taxes and raises funds for the 1. Mandatory nature of the rulegovernment. Cruz, Philippine Political Law, p. 144 (1995 ed).218 Every bill passed by the Congress shall embrace A tariff bill specifies the rates of duties to be imposed on importedarticles. Cruz, Philippine Political Law, p. 144 (1995 ed). only one subject. The subject shall be expressed in219 the title of the bill. This rule is mandatory. A bill increasing public debt is illustrated by one floating bondsfor public subscription redeemable after a certain period. Cruz,Philippine Political Law, p. 144 (1995 ed). The requirement is satisfied when:220 Bills of local application are those which is limited to specific (1) All parts of the law relate to the subjectlocalities, such for instance as the creation of a town. Bernas expressed in the titleCommentary, p 748 (2003 ed). (2) It is not necessary that the title be a complete221 Private bills are those which affect private persons, such for index of the content (PHILCONSA v. Gimenez)instance as a bill granting citizenship to a specific foreigner. BernasCommentary, p 748 (2003 ed). Private bills are illustrated by a bill 222granting honorary citizenship to a distinguished foreigner. Cruz, . Bernas Commentary, p 748 (2003 ed). 223Philippine Political Law, p. 155 (1995 ed). Cruz, Philippine Political Law, p. 145 (1995 ed).I sweat, I bleed, I soar… 50Service, Sacrifice, Excellence
  • 51. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 2. Purpose of the Rule: Reason for three readings (1) To prevent hodge-podge or log-rolling legislation Section 26 (2) To prevent surprise or fraud upon the legislature (2) No bill passed by either House (3) To fairly appraise the people. (Central Capiz v. shall become a law unless it has Ramirez) passed three readings on separate days, and printed copies whereof in 3. Liberal interpretation of the rule its final form have been distributed The rule should be given a practical rather than a to its Members three days before strict construction. It should be sufficient its passage, except when the compliance with such requirement if the title President certifies to the necessity expresses the general subject and all the of its immediate enactment to meet provisions of the statute are germane to that a public calamity or emergency. general subject. (Sumulong v. COMELEC) Upon the last reading of a bill, no amendment thereto shall be 4. Germane allowed, and the vote thereon shall A partial exemption from the increase of tax imposed is be taken immediately thereafter, not a deviation from the general subject of the law. and the yeas and the nays entered (Insular Lumber Co. v. CTA) in the Journal. A tax may be germane and reasonably necessary for the 1. Rules accomplishment of the general object of the decree for regulation. (Tio v. VRB) (1) No bill passed by either House shall become a law unless it has passed three readings on A repealing clause does not have to be expressly separate days. included in the title of the law. (Phil. Judges Assoc. v. (2) Printed copies of the bill in its final form should Prado) be distributed to the Members 3 days before its passage (except when the President The creation of a new legislative district is germane to certifies to the necessity of its immediate “the conversion of a municipality to an urbanized city.” (Tobias v. Abalos) enactment to meet a public calamity or emergency). The reorganization of the remaining administrative (3) Upon the last reading of a bill, no amendment regions is germane to the general subject of “establishing thereto shall be allowed. the ARMM”. (Chiongbayan v. Orbos) (4) The vote on the bill shall be taken immediately after the last reading of a bill. The expansion in the jurisdiction of the Sandiganbayan (5) The yeas and the nays shall be entered in the does not have to be expressly stated in the title of the law Journal. (An Act Further Defining the Jurisdiction of the Sandiganbayan) because such is the necessary Exception. The certification of the President consequence of the amendment. (Lacson v. Executive dispenses with the reading on separate days and Secretary) the printing of the bill in the final form before its final approval. (Tolentino v. Secretary of Fincance) A provision that states that “no election officer shall hold Operative. All decrees which are not inconsistent office for more than four years” is relevant to the title “An with the Constitution remain operative until they are Act Providing for a General Registration of voters, amended or repealed. (Guingona v. Carague) Adopting a System of Continuing Registration, Prescribing Procedures Thereof and Authorizing the Appropriation of Funds Therefor” as it seeks to ensure the 2. Procedure:224 integrity of the registration process by providing 1. A bill is introduced by any member of the guidelines for the COMELEC to follow in the House of Representatives or Senate except for reassignment of election officers. (De Guzman v. some measures that must originate only in the COMELEC) former chamber. The abolition of 2 municipalities is but a logical 2. The first reading involves only a reading of consequence of its merger to create a city. the number and title of the measure and its referral by the Senate President or the 5. Not Germane Speaker to the proper committee for study. Prohibition of places of amusement should be included 3. The bill may be killed in the committee or it in the title of the law which only provides for the may be recommended for approval, with or regulation of places of amusement. (De la Cruz v. Paras) without amendments, sometimes after public hearings are first held thereon. (If there areC. Passage of a bill other bills of the same nature or purpose, theyRulesProcedure 224 Cruz, Philippine Political Law, p. 155 (1995 ed).I sweat, I bleed, I soar… 51Service, Sacrifice, Excellence
  • 52. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA may all be consolidated into one bill under Legislative Approval of the bill common authorship or as a committee bill.) Presidential Inaction 4. Once reported out, the bill shall be calendared for second reading. It is at this stage that the Section 27. (1)Every bill passed bill is read in its entirety, scrutinized, debated by the Congress shall, before it upon and amended when desired. The second becomes a law, be presented to the reading is the most important stage in the President. If he approves the same, passage of the bill. he shall sign it; otherwise, he shall veto it and return the same with his 5. The bill as approved in second reading is objections to the House where it printed in its final form and copies thereof are originated, which shall enter the distributed at least three days before the third objections at large in its Journal, reading. On third reading, the members and proceed to consider it. If, after merely register their votes and explain them if such reconsideration, two-thirds of they are allowed by the rules. No further all the Members of such House debate is allowed. shall agree to pass the bill, it shall 6. Once the bill passes third reading, it is sent to be sent, together with the the other chamber, where it will also undergo objections to the other House by the three readings. which it shall likewise be 7. If also approved by the second House, it will reconsidered, and if approved by then be submitted to the President for his two-thirds of all the Members of consideration. that House, it shall become a law. In all such cases, the votes of each 8. The bill is enrolled when printed as finally House shall be determined by yeas approved by the Congress, thereafter or nays, and the names of the authenticated with the signatures of the Members voting for or against shall Senate President, the Speaker, and the be entered in its Journal. The Secretaries of their respective chambers, and President shall communicate his approved by the President. veto of any bill to the House where it originated within thirty days after 3. Reason for three readings the date of receipt thereof; To address the tendency of legislators, (on the last otherwise, it shall become a law as day of the legislative year when legislators were if he had signed it. eager to go home), to rush bills through and insert matters which would not otherwise stand scrutiny in 1. Three methods by which a bill may become a leisurely debate.225 law: (1988 Bar Question) Q: If the version approved by the Senate 1. When the President signs it; is different from that approved by the 2. When the President vetoes it but the veto is House of Representatives, how are the overridden by two-thirds vote of all the differences reconciled? members of each House; A: In a bicameral system bills are 3. When the President does not act upon the independently processed by both Houses measure within 30 days after it shall have of Congress. It is not unusual that the final been presented to him. version approved by one House differs from what has been approved by the 2. Presidential approval other. The “conference committee,” (1) Passed bill is presented to the President consisting of members nominated from (2) President signs the bill if he approves the same both Houses, is an extra-constitutional (3) The bill becomes a law. creation of Congress whose function is to propose to Congress ways of reconciling 3. Presidential veto conflicting provisions found in the Senate (1) Passed bill is presented to the President version and in the House version of a bill. (2) President vetoes the bill if he does not approve of it.D. Presidential Approval, Veto or Inaction; (3) He returns the passed bill with his objections toLegislative Reconsideration the House where it originated. (Veto Mesasge)Three Methods General rule: If the presidentPresidential Approval disapproves the bill approved byPresidential Veto Congress, he should veto the entire bill. He is not allowed to veto225 separate items of a bill. See Bernas Commentary, p 760 (2003 ed). Exceptions:I sweat, I bleed, I soar… 52Service, Sacrifice, Excellence
  • 53. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA (1) President may veto an item in cases of appropriation, revenue and tariff bills. (2) President may veto inappropriate provisions or riders. 4. Legislative reconsideration of the bill (1993 Bar Question) (1) The House where the bill originated enters the objections of the President at large in its Journal. (2) Said House reconsiders the bill. (3) 2/3 of all the Members of such House agree to pass the bill. (4) The bill together with the objections is sent to the other House by which it is also reconsidered. (5) The other House approves the bill by 2/3 of all the members of that House. (6) The bill becomes a law. In all such cases, the votes of each House shall be determined by yeas or nays. The names of the Members voting for or against shall be entered in its Journal. Q: When does the Constitution require that the yeas and nays of the Members be taken every time a House has to vote? A: 1. Upon the last and third readings of a bill (art. 6 sec26(2)) 2. At the request of 1/5 of the members present (art 6 sec 16(4)) 3. In repassing a bill over the veto of the President (art 6 sec 27(1)) 5. Presidential Inaction (1) Passed bill is presented to the President (2) President does not approve nor communicate his veto to the House where the bill originated within 30 days. (3) The bill becomes a law.I sweat, I bleed, I soar… 53Service, Sacrifice, Excellence
  • 54. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERAE. Item veto must be incorporated in a separate bill. Being an inappropriate provision, it was properly vetoed. Section 27 (PHILCONSA v. Enriquez) (2) The President shall have the power to veto any particular item or The proviso on “power of augmentation from items in an appropriation, revenue, savings” can by no means be considered a specific or tariff bill, but the veto shall not appropriation of money. (Gonzales v. Macaraig) affect the item or items to which he does not object. 4. Appropriate Provisions The special provision providing that “the maximum Again, the General rule is: If the president amount of the appropriation for the DPWH to be disapproves the bill approved by Congress, he contracted for the maintenance of national roads should veto the entire bill. He is not allowed to veto and bridges should not exceed 30%” is germane to separate items of a bill. the appropriation for road maintenance. It specifies Exceptions: how the item shall be spent. It cannot be vetoed separately from the item. (PHILCONSA v. (1) President may veto an item in cases of Enriquez) appropriation, revenue and tariff bills. (2) President may veto inappropriate provisions The special provision that all purchases of or riders. medicines by the AFP should comply with Generics Act is a mere advertence to an existing law. It is Item. An item is an indivisible [sum] of money directly related to the appropriation and cannot be dedicated to a stated purpose.226 (Item = Purpose, vetoed separately from the item. (PHILCONSA v. Amount) Enriquez) In a tax measure, an item refers to the subject of the tax and the tax rate. It does not refer to the G. Executive Impoundment: entire section imposing a particular kind of tax. (CIR v. CTA) Refusal of the President to spend funds already allocated by Congress for a specific purpose. (See The president may not veto the method or manner PHILCONSA v. Enriquez) of using an appropriated amount. (Bengzon v. Drillon) H. Legislative vetoF. Doctrine of inappropriate provisions A Congressional veto is a means whereby theDoctrine legislature can block or modify administrativeReason for the Doctrine action taken under a statute. It is a form ofInappropriate Provisions legislative control in the implementation ofAppropriate Provisions particular executive actions. 1. Doctrine XII. FISCAL POWERS/ POWER OF THE PURSE 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”. Taxation (Gonzales v. Macaraig) A. Nature B. Limitations 2. Reason for the Doctrine C. Delegation of power to tax The intent behind the doctrine is to prevent the D. Exempted from taxation legislature from forcing the government to veto an Spending Power entire appropriation law thereby paralyzing A. Spending Power government. B. Appropriation C. Non-establishment provision 3. Inappropriate Provisions D. Special Fund E. Appropriation Repeal of laws. Repeal of laws should not be done in appropriation act but in a separate law Power of the Purse. Congress is the guardian of (PHILCONSA v. Enriquez) (use this doctrine the public treasury. It wields the tremendous power carefully) of the purse. The power of the purse comprehends both the power to generate money for the The requirement of congressional approval for the release of funds for the modernization of the AFP226 Bernas Primer, p. 276 (2006 ed.)I sweat, I bleed, I soar… 54Service, Sacrifice, Excellence
  • 55. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA government by taxation and the power to spend martial rule product, which imposed a ten peso it.227 capital contribution for the sale of each bag of fertilizer “until adequate capital is raised to makeTAXATION PPI viable.” PPI was private corporation. Clearly, therefore, the imposition was for private benefit and Section 28. (1) The rule of taxation not for a public purpose. shall be uniform and equitable. The Congress shall evolve a B. Limitations on Power of Taxation progressive system of taxation. 1. Rule of taxation shall be uniform and equitable. Congress shall evolve a progressive systemA. Nature of taxation.Definition 2. Charitable institutions, etc. and all lands, buildingScope and improvements actually, directly andPurposes exclusively used for religious, charitable orTax educational purposes shall be exempt fromPublic Purpose taxation. (art. 6 §28(3)) 3. All revenues and assets of non-stock, non-profit 1. Definition educational institutions used actually, directly and exclusively for educational purposes shall Taxation refers to the inherent power of the state to be exempt from taxes and duties. (art. 14 demand enforced contributions for public purposes. §4(3)) 4. Law granting tax exemption shall be passed only 2. Scope with the concurrence of the majority of all the Taxation is so pervasive that it reaches even the members of Congress. (art. 6 §29(4) citizen abroad and his income earned from source outside the State. UNIFORM General Limit: For a public purpose; Due process and equal protection clauses (Sison v. Ancheta) Uniformity. Uniformity signifies geographical Specific Limit: Uniform and equitable (Section 28) uniformity. A tax is uniform when it operates with (See 29(2)) the same force and effect in every place where the Exercise of the power: Primarily vested in the subject is found. national legislature. Uniformity in taxation v. Equality in taxation. 3. Purposes: Uniformity in taxation means that persons or things (1) To raise revenue belonging to the same class shall be taxed at the (2) Instrument of national economic and social same rate. It is distinguished from equality in policy taxation in that the latter requires the tax imposed (3) Tool for regulation to be determined on the basis of the value of the (4) The power to keep alive228 property.231 4. Tax Tan v. del Rosario: Taxes are enforced proportional contributions from Uniformity means: persons and property levied by the law making (1) the standards that are used therefor are body of the state by virtue of its sovereignty for the substantial and not arbitrary; support of the government and all public needs. (2) the categorization is germane to achieve the Justice Holmes said: “Taxes are what we pay for legislative purpose; civilized society.” (3) the law applies, all things being equal, to both present and future conditions; and 5. Public Purpose (4) the classification applies equally well to all It is fundamental in democratic governments that those belonging to the same class. taxes may be levied for public purpose only. Without this element, a tax violates the due There is a difference between the homeless people process clause and is invalid.229 In Planters and the middle class. The two social classes are Products, Inc. (PPI) v. Fertiphil Corp.230 the Court differently situated in life. (Tolentino v. Sec. of had occasion to review the validity of LOI 1465, a Finance) EQUITABLE227 Bernas Commentary, p 785 (2003 ed).228 Bernas Primer at 278 (2006 ed.)229 Sinco, Philippine Political Law, p 579 (1954ed).230 231 G.R. No. 166006, March 14, 2008. Cruz, Philippine Political Law, p. 168 (1995 ed).I sweat, I bleed, I soar… 55Service, Sacrifice, Excellence
  • 56. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA The present constitution adds that the rule of (3) The said power is to be exercised within taxation shall also be equitable, which means that specified limits and subject to such limitations and the tax burden must be imposed according to the restrictions as the Congress may impose. taxpayer’s capacity to pay.232 (4) The authorization of such power must be within the framework of the national development Progressive system of taxation. The Congress program of the Government. shall evolve a progressive system of taxation. Tax system is progressive when the rate increases as 2. Tariff and Customs Code, Flexible Tariff the tax base increases.233 Clause The President is given by the Tariff and Customs Reason for progressive system. The explicit Code ample powers to adjust tariff rates. mention of progressive taxation in the Constitution reflects the wish of the Commission that the Flexible Tariff Clause legislature should use the power of taxation as an The President may fix tariff rates, import and export instrument for a more equitable distribution of quotas, etc. under TCC: wealth. 1) To increase, reduce or remove existing protective rates of import duty (including any Directive not a judicially enforceable right. The necessary change in classification) directive to evolve a progressive system of taxation  the existing rates may be increased or is addressed to Congress and not a judicially decreased to any level on one or several enforceable right. (Tolentino v. Sec. of Finance) stages but in no case shall be higher than a maximum of 100% as valorem Indirect taxes. The Constitution does not prohibit 2) To establish import quota or to ban imports of the imposition of indirect taxes, which are any commodity, as may be necessary regressive. The provision simply means that direct 3) To impose an additional duty on all imports not taxes are to be preferred and indirect taxes should exceeding 10% ad valorem whenever be minimized as much as possible. It does not necessary require Congress to avoid entirely indirect taxes. Otherwise, sales taxes, which are the oldest form 3. Limitation Imposed Regarding the Flexible of indirect taxes, will be prohibited. The mandate to Tariff Clause Congress is not to prescribe but to evolve a progressive system of taxation. (Tolentino v. Sec. of 1) Conduct by the Tariff Commission of an Finance) investigation in a public hearing  The Commissioner shall also hear theC. Delegation of power to tax views and recommendations of anyConditions government office, agency orTariffs and Customs Code instrumentality concernedLimitation imposed regarding the Flexible Tariff Clause  The NEDA thereafter shall submits its recommendation to the President 2) The power of the President to increase or Section 28 decrease the rates of import duty within the (2) The Congress may by law, abovementioned limits fixed in the Code shall authorize the President to fix within include the modification in the form of duty. specified limits, and subject to such limitations and restrictions at it may  In such a case the corresponding ad impose, tariff rates, import and valorem or specific equivalents of the duty export quotas, tonnage and with respect to the imports from the wharfage dues, and other duties or principal competing country for the most imposts within the framework of the recent representative period shall be used national development program of as bases. (Sec 401 TCC) the Government. D. Exempted from taxation 1. Conditions in the delegation of the power to Exempted from taxation tax: Kind of tax exemption “Exclusively”, Meaning (1) Delegation must be made by law Elements in determining a charitable institution (2) The power granted is to fix tariff rates, import Reason for Requirement of Absolute Majority and export quotas, tonnage and wharfage dues, and other duties and impost. Section 28232 Cruz, Philippine Political Law, p. 168 (1995 ed). (3) Charitable institutions, churches233 and parsonages or convents Bernas Commentary, p 779 (2003 ed). appurtenant thereto, mosques,I sweat, I bleed, I soar… 56Service, Sacrifice, Excellence
  • 57. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA non-profit cemeteries and all lands, power to tax and consequent loss of revenue to the buildings, and improvement government. actually, directly, and exclusively used for religious, charitable, or POWER OF APPROPRIATION/ SPENDING POWER educational purposes shall be exempt from taxation. A. Spending Power 1. Spending Power 1. Exempted: 2. Reason (1) Charitable institutions 3. “By Law” (2) Churches (3) Parsonages or convents appurtenant to Section 29. (1) No money shall be churches paid out of the Treasury except in (4) Mosques pursuance of an appropriation (5) Non-profit cemeteries made by law. (6) All lands, buildings, and improvement actually, directly and exclusively used for religious, 1. Spending Power charitable, or educational purpose shall be exempt The spending power of Congress is stated in from taxation. Section 29(1): “No money shall be paid out of the Treasury except in pursuance of an appropriation 2. Kind of tax exemption under 28(3) made by law.” (1988, 1992 Bar Question) The exemption created by Section 28 is only for taxes assessed as property taxes and not excise 2. Reason tax. (CIR v. CA) Behind the provision stands the principle that the people’s treasure that the people’s treasure may be 3. “Exclusively” sent only with their consent. That consent is to be The phrase “exclusively used for educational expressed either in the Constitution itself or in valid purposes” extends to facilities which are incidental acts of the legislature as the direct representative to and reasonably necessary for the of the people.234 accomplishment of the main purpose. (Abra Valley College v. Aquino) 3. “By law” The provision does not say “appropriation by PCGG has no power to grant tax exemptions Congress” but rather “by law”, a term which covers (Chavez v. PCGG) both statutes and the Constitution.235 4. Elements to be considered in determining B. Appropriation whether an enterprise is a charitable Appropriation institution/entity: Classification (1) Statute creating the enterprise CDF (2) Its corporate purposes (3) Its constitution and by-laws 1. Appropriation (4) Method of administration An appropriation measure may be defined as a (5) Nature of actual work performed statute the primary and specific purpose of which is (6) Character of services rendered to authorize the release of public funds from the (7) Indefiniteness of the beneficiaries treasury.236 A law creating an office and providing (8) Use and occupation of the properties (Lung funds therefore is not an appropriation law since Center v. QC) the main purpose is not to appropriate funds but to create the office.237 Section 28 (4) No law granting any tax 2. Classification of Appropriation Measures: exemption shall be passed without the concurrence of a majority of all (4) General- The general appropriations law the Members of the Congress. passed annually is intended to provide for the financial operations of the entire government during one fiscal period. 5. Reason for absolute majority Bills ordinarily passed with support of only a simple majority, or a majority of those present and voting. 234 The above provision requires an absolute majority See Sinco, Philippine Political Law, p 208 (1954ed). 235 of the entire membership of the Congress because Sinco, Philippine Political Law, p 211 (1954ed). a tax exemption represents a withholding of the 236 Cruz, Philippine Political Law, p. 158 (1995 ed). 237 Cruz, Philippine Political Law, p. 159 (1995 ed).I sweat, I bleed, I soar… 57Service, Sacrifice, Excellence
  • 58. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA (5) Special- designed for a specific purpose 4. Procedure for approving appropriations for such as the creation of a fund for the relief of Congress. (art 6 sec 25(3)) typhoon victims. 5. Prohibition against transfer of appropriations. (art 6 sec 25(5)) CDF 6. Rule on automatic reappropriation. (art 6 sec 25(7)) A law creating CDF was upheld by the SC saying 7. Prohibition against appropriations for sectarian that the Congress itself has specified the uses of benefit. (art 6 sec 29(2)) the fund and that the power given to Congressmen and Vice-President was merely recommendatory to D. Non-establishment provision the President who could approve or disapprove the recommendation. (PHILCONSA v. Enriquez) Section 29C. Limitations on Appropriations (2) No public money or propertyExtra-Constitutional Limitations shall be appropriated, applied,Constitutional Limitations paid, or employed, directly or indirectly, for the use, benefit, or 1. Extra-Constitutional Limitations support of any sect, church, denomination, sectarian institution, or system of religion, or of any Implied Limitations priest, preacher, minister, or other 1. Appropriation must be devoted to a public religious teacher or dignitary as purpose such, except when such priest, 2. The sum authorized must be determinate or at preacher, minister, or dignitary is least determinable.238 assigned to the armed forces, or to any penal institution, or 2. Constitutional Limitations government orphanage or leprosarium. Specific Limitations on the power of appropriation239 [Sec 24, Sec 25(6)] No public money or property shall be appropriated, 1. Appropriation bills should originate in the House applied, paid, or employed, directly or indirectly, for of Representatives. (art. 6 sec 24) the use, benefit, or support of any sect, church, 2. Discretionary funds appropriated for particular denomination, sectarian institution, or system of officials shall be disbursed only for public religion, or of any priest, preacher, minister, or purposes to be supported by appropriate other religious teacher or dignitary as such. vouchers and subject to such guidelines as may be prescribed by law. (art. 6 sec 25(6) Public money may be paid to a priest, preacher, minister, or dignitary if he is assigned to the armed Constitutional limitations on special forces, or to any penal institution, or government appropriation measures [Sec 25(4), Sec 29(2)] orphanage or leprosarium. 1. Must specify the public purpose for which the sum is intended. (art 6 sec 25 (4)) General or specific appropriation. Whether the 2. Must be supported by funds actually available as appropriation be general or specific, it must certified to by National Treasurer, or to be conform to the prohibition against the use of public raised by a corresponding revenue proposal funds or property for sectarian purposes.241 included therein. (art 6 sec 25(4)) 3. Prohibition against appropriations for sectarian Purpose of the provision. This provision must be benefit. (art 6 sec 29(2))240 read with Article III, Section 5 on religious freedom and Article II, Section 6 on the separation of Constitutional rules on general appropriations Church and State. Its purpose is to further bolster law [Sec 25 (1)(2)(3)(5)(7), Sec 29(2)] this principle and emphasize the neutrality of the 1. Congress may not increase the appropriations State in ecclesiastical matters. recommended by the President. (art 6 sec 25(1)) E. Special Fund 2. The form, content, and manner of preparation for the budget shall be prescribed by law. (art 6 sec 25(1)) Section 29 3. Rule on riders. (art 6 sec 25(2)) (3) All money collected on any tax levied for a special purpose shall be treated as a special fund and238 Cruz, Philippine Political Law, p. 160 (1995 ed). paid out for such purpose only. If239 Cruz, Philippine Political Law, p. 160 (1995 ed).240 241 See Cruz, Philippine Political Law, p. 164 (1995 ed). Cruz, Philippine Political Law, p. 164 (1995 ed.)I sweat, I bleed, I soar… 58Service, Sacrifice, Excellence
  • 59. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA the purpose for which a special amount that the operation of his department fund was created has been fulfilled requires.244 or abandoned, the balance, if any, shall be transferred to the general Preparation of Budget. The form, content, and funds of the Government. manner of preparation of the budget shall be prescribed by law. Tax levied for a special purpose. All money collected on any tax levied for a special purpose 2. Rule on riders shall be treated as a special fund. Section 25 For such purpose only. All money collected on (2) No provision or enactment shall any tax levied for a special purpose shall be paid be embraced in the general out for such purpose only. appropriations bill unless it relates specifically to some particular Balance to the general funds. If the purpose for appropriation therein. Any such which a special fund was created has been fulfilled provision or enactment shall be or abandoned, the balance, if any, shall be limited in its operation to the transferred to the general funds of the appropriation to which it relates. Government. (2001 Bar Question)F. General Appropriation Every provision or enactment in the generalBudget and Appropriation appropriations bill must relate specifically to someRule on Riders particular appropriation therein.Special Appropriations BillNo Transfer of Appropriations Every such provision or enactment shall be limitedDiscretionary Funds in its operation to the appropriation to which itAutomatic Re-enactment relates 1. Budget and Appropriation Purpose. To prevent riders or irrelevant provisions that are included in the general appropriations bill Section 25. (1) The Congress may to ensure their approval.245 not increase the appropriations recommended by the President for Procedure in approving appropriations for the the operation of the Government as Congress specified in the budget. The form, (3) The procedure in approving content, and manner of preparation appropriations for the Congress of the budget shall be prescribed shall strictly follow the procedure by law. for approving appropriations for other departments and agencies. Budget. The budget is only a proposal, a set of recommendations on the appropriations to be Same Procedure. The procedure in approving made for the operations of the government. It is appropriations for the Congress shall strictly follow used as a basis for the enactment of the general the procedure for approving appropriations for appropriations law.242 other departments and agencies. The budget as a restriction on appropriations. Reason. To prevent the adoption of appropriations The Congress may not increase the appropriations sub rosa by the Congress. recommended by the President for the operation of the Government as specified in the budget. 3. Special Appropriations bill Reason. The reason for the above provision is the (4) A special appropriations bill theory that the President knows more about the shall specify the purpose for which needed appropriations than the legislature.243 Being it is intended, and shall be responsible for the proper administration of the supported by funds actually executive department, the President is ordinarily available as certified by the the party best qualified to know the maximum National Treasurer, or to be raised242 244 Cruz, Philippine Political Law, p. 161 (1995 ed.) Sinco, Philippine Political Law, p 216 (1954ed).243 245 Cruz, Philippine Political Law, p. 161 (1995 ed.) Cruz, Philippine Political Law, p. 162 (1995 ed.)I sweat, I bleed, I soar… 59Service, Sacrifice, Excellence
  • 60. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA by a corresponding revenue proposal therein. (6) Discretionary funds A special appropriations bill shall: appropriated for particular officials (1) Specify the purpose for which it is intended; shall be disbursed only for public (2) Be supported by funds actually available as purposes to be supported by certified by the National Treasurer; or appropriate vouchers and subject (3) Be supported by funds to be raised by a to such guidelines as may be corresponding revenue proposal therein. prescribed by law. 4. No transfer of appropriations Public Purpose. Discretionary funds appropriated for particular officials shall be disbursed only for (5) No law shall be passed public purposes to be supported by appropriate authorizing any transfer of vouchers and subject to such guidelines as may be appropriations; however, the prescribed by law. President, the President of the Senate, the Speaker of the House Reason. This was thought necessary in view of the of Representatives, the Chief many abuses committed in the past in the use of Justice of the Supreme Court, and discretionary funds. In many cases, these funds the heads of Constitutional were spent for personal purposes, to the prejudice Commissions may, by law, be and often even without the knowledge of the authorized to augment any item in public.248 the general appropriations law for their respective offices from 6. Automatic Reenactment savings in other items of their (1998 Bar Question) respective appropriations. (7) If, by the end of any fiscal year,(1998 Bar Question) the Congress shall have failed to pass the general appropriations bill Prohibition of transfer. No law shall be passed for the ensuing fiscal year, the authorizing any transfer of appropriations. general appropriations law for preceding fiscal year shall be Reason. This provision prohibits one department deemed reenacted and shall from transferring some of its funds to another remain in force and effect until the department and thereby make it beholden to the general appropriations bill is former to the detriment of the doctrine of passed by the Congress. separation of powers. Such transfers are also unsystematic, besides in effect disregarding the will Reason. This is to address a situation where of the legislature that enacted the appropriation Congress fails to enact a new general measure.246 appropriations act for the incoming fiscal year. Augmentation of item from savings. The President, the Senate President, the House XIII. OTHER PROHIBITED MEASURES Speaker, the Chief Justice, and the heads of Constitutional Commission may, by law, be authorized to augment any item in the general Appellate Jurisdiction of Supreme Court appropriations law for their respective offices from Title of Royalty and Nobility savings in other items of their respective appropriations. In this case, there is no danger to A. Appellate Jurisdiction of Supreme Court the doctrine of separation of powers because the transfer is made within a department and not from Section 30. No law shall be one department to another.247 passed increasing the appellate jurisdiction of the Supreme Court Exclusive list. The list of those who may be as provided in this Constitution authorized to transfer funds under this provision is without its advice and concurrence. exclusive. However, members of the Congress may determine the necessity of realignment of the Limitation on power of Congress. No law shall savings. (PHILCONSA v. Enriquez) be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution5. Discretionary funds without its advice and concurrence.246 Cruz, Philippine Political Law, p. 164 (1995 ed.)247 248 Cruz, Philippine Political Law, p. 164 (1995 ed.) Cruz, Philippine Political Law, p. 160 (1995 ed.)I sweat, I bleed, I soar… 60Service, Sacrifice, Excellence
  • 61. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA SC’s Advice and Concurrence Needed. The The power of the people to propose amendments Congress may increase the appellate jurisdiction of to the Constitution or to propose and enact the SC but only with its advice and concurrence. legislation. Reason. To prevent further additions to the present Three systems of Initiative: tremendous case load of the Supreme Court which 1. Initiative on the Constitution which refers to a includes the backlog of the past decades.249 petition proposing amendments to the Constitution;B. Titles of Royalty and Nobility 2. Initiative on statutes which refers to a petition proposing to enact a national legislation. Section 31. No law granting a title of royalty or nobility shall be 3. Initiative on local legislation which refers to a enacted. petition proposing to enact a regional, provincial, city, municipal or barangay law, resolution or ordinance. Reason. To preserve the republican and democratic nature of our society by prohibiting the Local Initiative. Not less than 2,000 registered creation of privileged classes with special voters in case of autonomous regions, 1,000 in perquisites not available to the rest of the citizenry. case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, may XIV. INITIATIVE AND REFERENDUM file a petition with the Regional Assembly or localInitiative and Referendum legislative body, respectively, proposing theinitiative adoption, enactment, repeal, or amendment, of anyReferendum law, ordinance or resolution. (Sec. 13 RA 6735) Section 32. The Congress shall as Limitations on local initiative: early as possible, provide for a 1. The power of local initiative shall not be system of initiative and referendum, exercised more than once a year; and the exceptions therefrom, 2. Initiative shall extend only to subjects or whereby the people can directly matters which are within the legal matters propose and enact laws or approve which are within the legal powers of the local or reject any act or law or part legislative bodies to enact; thereof passed by the Congress or 3. If any time before the initiative is held, the local local legislative body after the legislative body shall adopt in toto the registration of a petition therefor proposition presented, the initiative shall be signed by at least ten per centum cancelled. However, those against such action of the total number of registered may if they so desire, apply for intitiative. voters, of which every legislative district must be represented by at Q: Petitioners filed a petition with COMELEC least three per centum of the to hold a plebiscite on their petition for an registered voters thereof. initiative to amend the Constitution by adopting a unicameral-parliamentary form of 1. Initiative and referendum government and by providing for transitory The Congress shall as early as possible, provide provisions. for a system of initiative and referendum, and the A: An initiative to change the Constitution exceptions therefrom. applies only to an amendment and not revision. Revision broadly implies a change Petition. A petition must be signed by at least 10% that alters basic principle in the Constitution of the total number of registered voters, of which like altering the principle of separation of every legislative district must be represented by at powers or the system of checks and least 3% of the registered voters thereof. The balance. The initiative of the petitioners is a petition must then be registered. revision and not merely an amendment. (Lambino v. COMELEC) RA 6735. The current implementing law is RA 6735, an Act Providing for System of Initiative and 3. Referendum Referendum. Power of the electorate to approve or reject legislation through an election called for the 2. Initiative. purpose. Two Classes of Referendum249 Cruz, Philippine Political Law, p. 146 (1995 ed.)I sweat, I bleed, I soar… 61Service, Sacrifice, Excellence
  • 62. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 1. Referendum on statutes which refers to a petition to approve or reject an act or la, or part thereof, passed by Congress; 2. Referendum on local laws which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. (Sec. 2(c) RA 6735) Prohibited Measures. The following cannot be subject of an initiative or referendum: 1. Petition embracing more than one subject shall be submitted to the electorate. 2. Statutes involving emergency measures, the enactment of which is specifically vested in Congress by the Constitution, cannot be subject to referendum until ninety(90) days after their effectivity. (Sec. 10 RA 6735) Q: Is the People Power recognized in the Constitution? (1987, 2000 and 2003 Bar Examinations) A: “People power” is recognized in the Constitution, Article III, Section 4 of the 1987 Constitution guarantees the right of the people peaceable to assemble and petition the government for redress of grievances. Article VI, Section 32 of the 1987 Constitution requires Congress to pass a law allowing the people to directly propose or reject any act or law or part of it passed by congress or a local legislative body. Article XIII, Section 16 of the 1987 Constitution provides that the right of the people and their organizations to participate in all levels of social, political, and economic decision-making shall not be abridged and that the State shall, by law, facilitate the establishment of adequate consultation mechanisms. Article XVII, Section 2 of the 1987 Constitution provides that subject to the enactment of an implementing law, the people may directly propose amendments to the Constitution through initiative.I sweat, I bleed, I soar… 62Service, Sacrifice, Excellence
  • 63. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA B. Executive Power, Scope EXECUTIVE DEPARTMENT 1. The scope of power is set forth in the Constitution specifically in Article VII.I. Executive Power (§ 1) 2. However, Executive power is more than theII. The President (§ 2-13) sum of specific powers enumerated in the Constitution. It includes residual powers251III. The Vice-President not specifically mentioned in the Constitution.IV. Powers of the President (Marcos v. Manglapus (1989)V. Power of Appointment (§ 14-16) The prosecution of crimes appertains toVI. Power of Control (§ 17) the Executive Department, whoseVII. Military Powers (§ 18) responsibility is to see the laws areVIII. Power of Executive Clemency (§ 19) faithfully executed. (Webb v. De Leon)252IX. Borrowing Power (§ 20) 3. BUT the President cannot dispose of StateX. Foreign Affairs Power (§ 21) property unless authorized by law.253XI. Budgetary Power (§ 22) 4. Enforcement and administration of electionXII. Informing Power (§ 23) laws is the authority of the COMELEC.254XIII. Other Powers C. Executive Power, Where Vested I. EXECUTIVE POWER The Executive power shall be vested in the President of the Philippines.Executive Power, (Definition) D. Ceremonial Functions (Head of State)ScopeWhere Vested In a presidential system, the presidency includesCeremonial Functions many other functions than just being executive.Executive Immunity The president is the [symbolic and] ceremonialExecutive Privilege head of the government of the [Philippines].255Cabinet E. Executive Immunity from suit Section 1. The Executive power shall be vested in the President of Rules on Immunity during tenure the Philippines 1. The President is immune from suit during his tenure.256A. Executive Power (Definition) 251 The executive power is the power to enforce and Residual Powers are those which are implicit in and correlative to administer the laws.250 (NEA v. CA, 2002) the paramount duty residing in that office to safeguard and protect general welfare. 252 See Jacinto Jimenez, Political Law Compendium p.306 (2005 ed.) 253 See Laurel v. Garcia (Roponggi Case)250 254 Justice Irene Cortes in the case of Marcos v. Manglapus (1989) Cruz, Philippine Political Law, p. 308 (1995 ed).opines: “It would be inaccurate… to state that ‘executive power’ is 255the power to enforce laws, for the President is head of State as well See Bernas Commentary, p 800 (2003 ed). 256as head of government and whatever power inhere in such positions The incumbent President is immune from suit or from beingpertain to the office unless the Constitution itself withholds it.” brought to court during the period of their incumbency and tenure. (In re Saturnino Bermudez,1986)M.T., in his attempt to provide a comprehensive interpretation of “The President during his tenure of office or actual incumbency, mayexecutive power provides: not be sued in ANY civil or criminal case. It will degrade the dignity“Executive power refers to the power of the President: of the high office of the President, the Head of State, if he can be(a) to execute and administer laws (b) power enumerated in the dragged into court litigations while serving as such.” (David v.Constitution (c) those powers that inhere to the President as head of [Ermita])state and head of government, and (d) residual powers.” Article VII, Section 17 (1st Sentence) of the 1973 Constitution“Executive power refers to the totality of the President’s power.” provides: “The President shall be immune from suit during his tenure.” The immunity granted by the 1st sentence while the PresidentAccording to Sinco, “Executive power refers to the legal and was in office was absolute. The intent was to give the Presidentpolitical functions of the President involving the exercise of absolute immunity even for wrongdoing committed during hisdiscretion. (Philippine Political Law, p.242 (1954 ed.) tenure. (Bernas, Philippine Political Law, 1984) Although the newI sweat, I bleed, I soar… 63Service, Sacrifice, Excellence
  • 64. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 2. He may be filed impeachment complaint Presidential Communications are Presumptively during his tenure. (Article XI) Privileged 3. The President may not be prevented from Executive Privilege v. Public Interest instituting suit (Soliven v. Makasiar) Power of Inquiry v. Executive Privilege 4. There is nothing in our laws that would prevent Case Digest of Neri v. Senate the President from waiving the privilege. The President may shed the protection afforded by 1) Definition the privilege. (Soliven v. Makasiar) Briefly and in simplest terms, it is the power of the 5. Heads of departments cannot invoke the President to withhold certain types of information presidents’ immunity (Gloria v. CA) from the public, from the courts, and from Rules on Immunity after tenure Congress. 6. Once out of office, even before the end of the 2) How invoked six year term, immunity for non-official acts is lost. Such was the case of Joseph Estrada. Invoked in relation to specific categories of (See Bernas Commentary, p 804 (2003 ed.) It information. Executive privilege is properly could not be used to shield a non-sitting invoked in relation to specific categories of President from prosecution for alleged criminal information and not to categories of persons. acts done while sitting in office. (Estrada v. (While executive privilege is a constitutional Disierto; See Romualdez v. Sandiganbayan) concept, a claim thereof may be valid or not depending on the ground invoked to justify it and Note: In David v. Arroyo, the Court held that it is the context in which it is made. Noticeably absent improper to implead President Arroyo as is any recognition that executive officials are respondent. However, it is well to note that in exempt from the duty to disclose information by the Rubrico v. Arroyo, Min. Res., GR No, 180054, mere fact of being executive officials. (Senate v. October 31, 2007, the Supreme Court ordered the Ermita) respondents, including President Arroyo, to make a return of the writ: “You, respondents President 3) Who can invoke Macapagal Arroyo….are hereby required to make In light of this highly exceptional nature of the a return of the writ before the Court of Appeals…” privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She Reasons for the Privilege: may of course authorize the Executive Secretary 1. Separation of powers. The separation of to invoke the privilege on her behalf, in which case powers principle is viewed as demanding the the Executive Secretary must state that the executive’s independence from the judiciary, so authority is "By order of the President," which that the President should not be subject to the means that he personally consulted with her. The judiciary’s whim.257 privilege being an extraordinary power, it must be 2. Public convenience. By reason of public wielded only by the highest official in the executive convenience, the grant is to assure the exercise of hierarchy. In other words, the President may not presidential duties and functions free from any authorize her subordinates to exercise such power. hindrance or distraction, considering that the Chief (Senate v. Ermita) (It follows, therefore, that when an Executive is a job that, aside from requiring all of official is being summoned by Congress on a matter the office-holder’s time, also demands undivided which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time attention (Soliven v. Makasiar) to inform the President or the Executive Secretary of the possible need for invoking the privilege. This isF. Executive Privilege necessary in order to provide the President or theDefinition Executive Secretary with fair opportunity to considerHow Invoked whether the matter indeed calls for a claim of executiveWho may invoke privilege. If, after the lapse of that reasonable time,Privilege Not Absolute neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect theTypes of Executive Privilege (Neri v. Senate) failure of the official to appear before Congress and mayVariety of Executive Privilege (Senate v. Ermita) then opt to avail of the necessary legal means to compelKinds of Executive Privilege (Neri v. Senate) his appearance.) (Senate v. Ermita)Elements of Presidential Communications Privilege 4) Privilege Not Absolute Claim of executive privilege is subject to balancingConstitution has not reproduced the explicit guarantee of presidential against other interest. In other words,immunity from suit under the 1973 Constitution, presidential confidentiality in executive privilege is notimmunity during tenure remains as part of the law. absolutely protected by the Constitution. Neither (See Bernas Commentary, p 804 (2003 ed.) the doctrine of separation of powers, nor the need for confidentiality of high-level communications,257 See Almonte v. VasquezI sweat, I bleed, I soar… 64Service, Sacrifice, Excellence
  • 65. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA without more, can sustain an absolute, unqualified Applies to documents in Presidential privilege of immunity from judicial their entirety and covers process under all circumstances. (Neri v. Senate) final and post decisional A claim of executive privilege does not guard materials as well as pre- against a possible disclosure of a crime or deliberative ones wrongdoing (Neri v. Senate) 8) Elements of presidential communications 5) Types of Executive Privilege258 privilege (Neri v. Senate) 1. State secrets (regarding military, diplomatic and 1) The protected communication must relate to a other security matters) “quintessential and non-delegable presidential 2. Identity of government informers power.” 3. Information related to pending investigations 2) The communication must be authored or 4. Presidential communications “solicited and received” by a close advisor of the 5. Deliberative process President or the President himself. The judicial test is that an advisor must be in “operational proximity” 6) Variety of Executive Privilege according to with the President. Tribe (Tribe cited in Senate v. Ermita) 3) The presidential communications privilege 1.State Secrets Privilege. that the information is remains a qualified privilege that may be overcome of such nature that its disclosure would subvert by a showing of adequate need, such that the crucial military or diplomatic objectives; information sought “likely contains important (2)Informer’s privilege. Privilege of the evidence” and by the unavailability of the Government not to disclose the identity of information elsewhere by an appropriate persons who furnish information of violations of investigating authority. law to officers charged with the enforcement of that law. 9) Presidential Communications are (3) General Privilege. For internal deliberations. Presumptively Privileged Said to attach to intragovernmental documents The presumption is based on the President’s reflecting advisory opinions, recommnendations generalized interest in confidentiality. The privilege and deliberations comprising part of a process is necessary to guarantee the candor of by which governmental decisions and policies presidential advisors and to provide the President formulated. and those who assist him with freedom to explore alternatives in the process of shaping 7) Two Kinds of Privilege under In re: Sealed policies and making decisions and to do so in a Case (Neri v. Senate) way many would be unwilling to express except 1. Presidential Communications Privilege privately. 2. Deliberative Process Privilege The presumption can be overcome only by mere showing of public need by the branch Presidential Deliberative seeking access to conversations. The courts are Communications Process Privilege enjoined to resolve the competing interests of the Privilege political branches of the government “in the Pertains to Includes advisory manner that preserves the essential functions of communications, opinions, each Branch.” documents or other recommendations materials that reflect and deliberations xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx presidential decision comprising part of a making and process by which 10) Executive Privilege and the Public deliberations that the governmental The Court held that this jurisdiction recognizes the President believes decisions and common law holding that there is a “governmental should remain policies are privilege against public disclosure with respect to confidential formulated state secrets regarding military, diplomatic and Applies to decision Applies to decision other national security matters and cabinet closed making of the President making of executive door meetings.” (Chavez v. PCGG) officials Rooted in the Rooted on common 11) Power of Inquiry v. Executive Privilege constitutional principle law privileges of separation of powers Requirement in invoking the privilege: formal and the President’s claim of privilege. “Congress has undoubtedly unique constitutional has a right to information from the executive role branch whenever it is sought in aid of legislation. If the executive branch withholds such information on258 Primer on Neri v. Senate made by Atty. Carlos Medina. the ground that it is privileged, it must so assert itI sweat, I bleed, I soar… 65Service, Sacrifice, Excellence
  • 66. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA and state the reason therefore and why it must a. There was a legitimate claim of executive be respected.” (Justice Carpio Morales in Senate privilege. v. Ermita) For the claim to be properly invoked, there must be a formal claim by the President stating the “precise A formal and proper claim of executive privilege and certain reason” for preserving confidentiality. requires a specific designation and description The grounds relied upon by Executive Secretary of the documents within its scope as well as Ermita are specific enough, since what is required is precise and certain reasons for preserving their only that an allegation be made “whether the confidentiality. Without this specificity, it is information demanded involves military or diplomatic impossible for a court to analyze the claim short of secrets, closed-door Cabinet meetings, etc.” The disclosure of the very thing sought to be protected. particular ground must only be specified, and the Upon the other hand, Congress must not require following statement of grounds by Executive Secretary Ermita satisfies the requirement: “The the executive to state the reasons for the claim with context in which executive privilege is being invoked such particularity as to compel disclosure of the is that the information sought to be disclosed might information which the privilege is meant to protect. impair our diplomatic as well as economic relations (Senate v. Ermita) with the People’s Republic of China.” 12) Neri v. Senate Committee Comments on Neri v. Senate Background: Atty Medina: The ruling expands the area of This case is about the Senate investigation of information that is not accessible to the public. anomalies concerning the NBN-ZTE project. During Executive privilege can now be invoked in the hearings, former NEDA head Romulo Neri communications between his close advisors. (See refused to answer certain questions involving his the second element in the presidential conversations with President Arroyo on the ground they are covered by executive privilege. When the communications privilege) Senate cited him in contempt and ordered his arrest, Bernas: The problem with the doctrine is, anytime Neri filed a case against the Senate with the the President says “That’s covered”, that’s it. Supreme Court. On March 25, 2008, the Supreme Nobody can ask anymore questions. Court ruled in favor of Neri and upheld the claim of ASM: I think when the President says, “It’s executive privilege. covered,” the Court can still make an inquiry under Issues: the Grave Abuse Clause. This inquiry can be done (1) . Are the communications sought to be elicited by in an executive session. the three questions covered by executive privilege? (2) Did the Senate Committees commit grave abuse of discretion in citing Neri in contempt and ordering G. Cabinet his arrest? Extra-constitutional creation Ruling: Composition (1) The SC said that the communications sought to Prohibitions be elicited by the three questions are covered by the Vice-President presidential communications privilege, which is one Ex-officio Capacity type of executive privilege. Using the elements of presidential communications Prohibited Employment privilege, the SC is convinced that the communications Prohibited Compensation elicited by the three (3) questions are covered by the presidential communications privilege. 1. Extra-constitutional creation First, the communications relate to a “quintessential Although the Constitution mentions the Cabinet a and non-delegable power” of the President, i.e. the number of times, the Cabinet itself as an institution power to enter into an executive agreement with other countries. This authority of the President to enter into is extra-constitutionally created. 259 executive agreements without the concurrence of the Legislature has traditionally been recognized in 2. Composition Philippine jurisprudence. It is essentially consist of the heads of departments Second, the communications are “received” by a close who through usage have formed a body of advisor of the President. Under the “operational presidential adviser who meet regularly with the proximity” test, petitioner can be considered a close President.260 advisor, being a member of President Arroyo’s cabinet. Third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and 3. Prohibitions (1987, 1996 Bar Question) of the unavailability of the information elsewhere by (Applies to Members of Cabinet, their deputies or an appropriate investigating authority. The record is assistants.) bereft of any categorical explanation from respondent 1. Unless otherwise provided in the Constitution, Committees to show a compelling or critical need for shall not hold any other employment during the answers to the three (3) questions in the enactment their tenure. of a law. (2) Yes. The Supreme Court said that the Senate 259 Committees committed grave abuse of discretion in Bernas Commentary, p 808 (2003 ed).; See art.7 secs. 3, 11 and citing Neri in contempt. The following reason among 13. others was given by the Supreme Court: 260 Bernas Commentary, p 808 (2003 ed).I sweat, I bleed, I soar… 66Service, Sacrifice, Excellence
  • 67. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 2. Shall not directly or indirectly practice any When an Undersecretary sits for a Secretary in a other profession, participate in any business, function from which the Secretary may not receive or be financially interested in any contract with, additional compensation, the prohibition on the or in any franchise or special privilege granted Secretary also applies t the Undersecretary.263 by the government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations II. The President or their subsidiaries during their tenure. 3. Strictly avoid conflict of interest in the conduct of their office during their tenure. (Section 13) Who is he? Qualifications 4. Vice-President Election Note that the VP may be appointed to the Cabinet, Term of Office without need of confirmation by the Commission on Oath of Office Appointments; and the Secretary of Justice is an Privileges ex officio member of the Judicial and Bar Council. Prohibitions/Inhibitions Vacancy Situations 5. Ex-officio261 capacity (2002 Bar Question) Rules of Succession Temporary Disability The prohibition must not be construed as applying Serious Illness to posts occupied by the Executive officials without Removal from Office additional compensation in an ex-officio capacity as provided by law and as required by the primary A. Who is the President functions of the said official’s office. The reason is that the posts do not comprise “any other office” within the contemplation of the constitutional The President is the Head of State and the Chief prohibition, but properly an imposition of additional Executive.264 (He is the executive) He is the duties and functions on said officials. repository of all executive power.265 To illustrate, the Secretary of Transportation and Communications is the ex officio Chirman of the B. Qualifications Board of Philippine Ports Authority. The ex officio Qualifications position being actually and in legal contemplation Reason for Qualifications part of the principal office, it follows that the official Qualifications are exclusive concerned has no right to receive additional Natural Born compensation for his services in said position. The Registered Voter reason is that these services are already paid for Age and covered by the compensation attached to the Registered Qualification principal office. (National Amnesty Commission v. COA, 2004) Section 2. No person may be elected President unless he is a 6. Prohibited Employment natural-born citizen of the Since the Chief Presidential Legal Counsel has the Philippines, a registered voter, able duty of giving independent and impartial legal to read and write, at least forty advice on the actions of the heads of various years of age on the day of the executive departments and agencies and to review election, and a resident of the investigations involving other presidential Philippines for at least ten years appointees, he may not occupy a position in any of immediately preceding such the offices whose performance he must review. It election. would involve occupying incompatible positions. Thus he cannot be Chairman at the same time of 1. Qualifications the PCGG since the PCGG answers to the 1. Natural born citizen of the Phils. President.262 2. Registered voter 3. Able to read write 7. Prohibited Compensation 4. At least 40 years of age o the day of the election 5. A resident of the Philippines for at least 10261 years immediately preceding the election. An ex-oficio position is one which an official holds but isgermane to the nature of the original position. It is by virtue of theoriginal position that he holds the latter, therefore such is 263constitutional. Bitonio v. COA, G.R. No. 147392, March 12, 2004.262 264 Public Interest Group v Elma, G. R. No. 138965, June 30, Bernas Primer at 289 (2006 ed.) 2652006. Sinco, Philippine Political Law, p.240 (1954 ed.)I sweat, I bleed, I soar… 67Service, Sacrifice, Excellence
  • 68. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 2. Reason for Qualifications such for more than four years shall be Qualifications are prescribed for public office to qualified for election to the same office at ensure the proper performance of powers and any time. duties.266 No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the 3. Qualifications are exclusive office for any length of time shall not be considered as an interruption in the continuity of The above qualifications are exclusive and may not the service for the full term for which he was be reduced or increased by Congress. The elected. applicable rule of interpretation is expression unius Unless otherwise provided by law, the est exclusio alterius.267 regular election for President and Vice- President shall be held on the second 4. Natural Born Monday of May. One who is a citizen of the Philippines from birth The returns of every election for President without having to perform any act to acquire or and Vice-President, duly certified by the perfect his Philippine citizenship. (Article IV, board of canvassers of each province or city, Section 2) shall be transmitted to the Congress, directed to the President of the Senate. An illegitimate child of an American mother and a Upon receipt of the certificates of canvass, Filipino father is a natural born Filipino citizen if the President of the Senate shall, not later paternity is clearly proved. Hence such person than thirty days after the day of the election, would be qualified to run for President. This was open all the certificates in the presence of the case of Fernando Poe, Jr. (Tecson v. COMELEC) the Senate and the House of Representatives in joint public session, and 5. Registered Voter the Congress, upon determination of the Possession of the qualifications for suffrage as authenticity and due execution thereof in the enumerated in Article V, Section 1. manner provided by law, canvass the votes. The person having the highest number of 6. Age votes shall be proclaimed elected, but in The age qualification must be possessed “on the case two or more shall have an equal and day of the election for President” that is, on the day highest number of votes, one of them shall set by law on which the votes are cast.268 forthwith be chosen by the vote of a majority of all the Members of both Houses of the 7. Residence Qualification Congress, voting separately. The object being to ensure close touch by the The Congress shall promulgate its rules for President with the country of which he is to be the the canvassing of the certificates. highest official and familiarity with its conditions The Supreme Court, sitting en banc, shall be and problems, the better for him to discharge his the sole judge of all contests relating to the duties effectively.269 election, returns, and qualifications of the President or Vice-President, and mayC. Election promulgate its rules for the purpose.Regular ElectionSpecial Election 1. Regular ElectionCongress as Canvassing Board The President (and Vice-President) shall beWho will be Proclaimed elected by direct vote of the people. UnlessPresidential Electoral Tribunal otherwise provided by law, the regular election for President (and Vice-President) shall be held on the Section 4. The President and the Vice- second Monday of May. President shall be elected by direct vote of the people for a term of six years which shall 2. Special Election (Discussed under Section 10) begin at noon on the thirtieth day of June next following the day of the election and 3. Congress as Canvassing Board shall end at noon of the same date six years The returns of every election for President and thereafter. The President shall not be eligible Vice-President, duly certified by the board of for any reelection. No person who has canvassers of each province or city, shall be succeeded as President and has served as transmitted to the Congress, directed to the President of the Senate. Upon receipt of the266 certificates of canvass, the President of the Senate Cruz, Philippine Political Law, p. 174 (1995 ed).267 Cruz, Philippine Political Law, p. 174 (1995 ed). shall, not later than thirty days after the day of the268 election, open all the certificates in the presence of Bernas Commentary, p 809 (2003 ed). the Senate and the House of Representatives in269 Cruz, Philippine Political Law, p. 175 (1995 ed).I sweat, I bleed, I soar… 68Service, Sacrifice, Excellence
  • 69. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA joint public session, and the Congress, upon unfinished presidential canvass. Adjournment determination of the authenticity and due terminates legislation but not the non-legislative execution thereof in the manner provided by functions of Congress such as canvassing of law, canvass the votes. The Congress shall votes. (Pimentel v. Joint Committee of promulgate its rules for the canvassing of the Congress, 2004) certificates. 4. Who will be proclaimed Is the function of Congress merely The person having the highest number of votes ministerial? shall be proclaimed elected, but in case two or Bernas: The function of Congress is not merely more shall have an equal and highest number of ministerial. It has authority to examine the votes, one of them shall forthwith be chosen by the certificates of canvass for authenticity and due vote of a majority of all the Members of both execution. For this purpose, Congress must pass Houses of the Congress, voting separately. a law governing their canvassing of votes.270 Cruz: As the canvass is regarded merely as a 5. Presidential Electoral Tribunal ministerial function, the Congress shall not have The Supreme Court, sitting en banc, shall be the power to inquire into or decide questions of the sole judge of all contests relating to the alleged irregularities in the conduct of the election contest. Normally, as long as the election, returns, and qualifications of the election returns are duly certified and appear to President or Vice-President, and may be authentic, the Congress shall have no duty promulgate its rules for the purpose. but to canvass the same and to proclaim as elected the person receiving the highest number Q: Can Susan Roces, widow of Fernando Poe. of votes.271 Jr, intervene and/or substitute for him, assuming Justice Carpio Morales: This duty has been arguendo that the protest could survive his characterized as being ministerial and death? executive.272 A: No. The fundamental rule applicable in a presidential election protest is Rule 14 of the Validity of Joint Congressional Committee. PET Rules. It provides that only the 2nd and 3rd Congress may validly delegate the initial placer may contest the election. The Rule determination of the authenticity and due effectively excludes the widow of a losing execution of the certificates of canvass to a Joint candidate.273 (Fernando Poe v. Arroyo) Congressional Committee so long as the decisions and final report of the said Committee The validity, authenticity and correctness of the shall be subject to the approval of the joint SOVs and COCs are under the Tribunal’s session of Both Houses of Congress voting jurisdiction. The constitutional function as well as separately. (Lopez v. Senate, 2004) the power and the duty to be the sole judge of all contests relating to election, returns and COMELEC. There is no constitutional or qualification of President and Vice-President is statutory basis for COMELEC to undertake a expressly vested in the PET in Section 4 Article separate and “unofficial” tabulation of result VII of the Constitution. Included therein is the whether manually or electronically. If Comelec is duty to correct manifest errors in the SOVs and proscribed from conducting an official canvass of COCs. (Legarda v. De Castro, 2005) the votes cast for the President and Vice- President, the Comelec is, with more reason, Q: After Fidel Ramos was declared President, prohibited from making an “unofficial” canvass of defeated candidate Miriam Defensor Santiago said votes. (Brilantes v. Comelec, 2004) filed an election protest with the SC. Subsequently, while the case is pending, she ran The proclamation of presidential and vice- for the office of Senator and, having been presidential winners is a function of Congress declared elected, assumed office as Senator. and not of Comelec (Macalintal v. COMELEC) What happens to her election protest? A: Her protest is deemed abandoned with her Congress may continue the canvass even after election and assumption of office as Senator. the final adjournment of its session. The final (Defensor Santiago v. Ramos) adjournment of Congress does not terminate an D. Term of Office270 Bernas Primer at 293 (2006 ed.)271 Cruz, Philippine Political Law, p. 176 (1995 ed).272 Separate Opinion of Justice Carpio Morales in Pimentel v. Joint 273Committee (June 22, 2004) citing Lopez v. Roxas, 17 SCRA 756, Fernando Poe, Jr. v. Arroyo, P.E.T. CASE No. 002.769 (1966) March 29, 2005.I sweat, I bleed, I soar… 69Service, Sacrifice, Excellence
  • 70. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 6 years. The President (and the Vice-President) the President and Vice-President shall be elected by direct vote of the people for a shall be determined by law and term of six years. shall not be decreased during their tenure. No increase in said Noon of June 30.Term hall begin at noon on the compensation shall take effect until thirtieth day of June next following the day of the after the expiration of the term of election and shall end at noon of the same date six the incumbent during which such years thereafter. increase was approved. They shall not receive during their tenure any No re-election. The President shall not be eligible other emolument from the for any reelection. No person who has succeeded Government or any other source. as President and has served as such for more than four years shall be qualified for election to the 1. Official Residence same office at any time. The President shall have an official residence. Reason for prohibition on any reelection for 2. Salary Presidency. It was thought that the elimination of the prospect of reelection would make for a more The salaries of the President and Vice-President independent President capable of making correct shall be determined by law and shall not be even unpopular decisions.274 He is expected to decreased during their tenure. devote his attention during his lone term to the The initial salary of the President is 300,00 per proper discharge of his office instead of using its year. (Article XVIII Section 17) perquisites to ensure his remaining therein for No increase during their term. No increase in another term.275 said compensation shall take effect until after the expiration of the term of the incumbent duringE. Oath of Office which such increase was approved. No additional emolument during their tenure. They shall not receive during their tenure any other Section 5. Before they enter on the emolument from the Government or any other execution of their office, the source. President, the Vice-President, or the Acting President shall take the 3. Immunity from Suit following oath or affirmation: (Discussed under Section 1 [I(E)]) “I do solemnly swear (or affirm) that I will faithfully and conscientiously G. Prohibitions/Inhibitions fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or defend its Constitution, execute its assistants shall not, unless otherwise provided in this laws, do justice to every man, and Constitution, hold any other office or employment consecrate myself to the service of during their tenure. They shall not, during said the Nation. So help me God.” tenure, directly or indirectly, practice any other (In case of affirmation, last profession, participate in any business, or be sentence will be omitted.) financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or Oath. The oath is not a source of substantive instrumentality thereof, including government-owned power but is merely intended to deepen the sense or controlled corporations or their subsidiaries. They of responsibility of the President and ensure a shall strictly avoid conflict of interest in the conduct of more conscientious discharge of his office.276 their office. The spouse and relatives by consanguinity or affinityF. Privileges within the fourth civil degree of the President shall not during his tenure be appointed as Members of1. Official Residence the Constitutional Commissions, or the Office of the2. Salary Ombudsman, or a Secretaries, Undersecretaries,3. Immunity from suit chairmen or heads of bureaus or offices, including government-owned or controlled corporations and Section 6. The President shall have their subsidiaries. an official residence. The salaries of Prohibitions:274 1. Shall not receive increase compensation Bernas Commentary, p 812 (2003 ed).275 during the term of the incumbent during which Cruz, Philippine Political Law, p. 177 (1995 ed). such increase was approved. (sec 6)276 Cruz, Philippine Political Law, p. 183 (1995 ed).I sweat, I bleed, I soar… 70Service, Sacrifice, Excellence
  • 71. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 2. Shall not receive any other emoluments from regular salaries. The second paragraph of Section the government or any other source during 13 is intended as a guarantee against nepotism.279 their tenure. (sec 6) 3. Unless otherwise provided in the Constitution, H. Vacancy shall not hold any other employment during their tenure. Section 7. The President-elect and the Vice- President-elect shall assume office at the beginning 4. Shall not directly or indirectly practice any of their terms. other profession, participate in any business, If the President-elect fails to qualify, the Vice- or be financially interested in any contract with, President-elect shall act as President until the or in any franchise or special privilege granted President-elect shall have qualified. by the government or any subdivision, agency, If a President shall not have been chosen, the Vice- or instrumentality thereof, including President-elect shall act as President until a President shall have been chosen and qualified. government-owned or controlled corporations If at the beginning of the term of the President, the or their subsidiaries during their tenure. President-elect shall have died or shall have 5. Strictly avoid conflict of interest in the conduct become permanently disabled, the Vice-President- of their office during their tenure. elect shall become President. 6. May not appoint spouse or relatives by Where no President and Vice-President shall have been chosen or shall have qualified, or where both consanguinity or affinity within the fourth civil shall have died or become permanently disabled, degree as Member of Constitutional the President of the Senate or, in case of his Commissions or the Office of the Ombudsman, inability, the Speaker of the House of or as Secretaries, Under Secretaries, Representatives shall act as President until a chairmen or heads of bureaus or offices, President or a Vice-President shall have been including government-owned or controlled chosen and qualified. corporations and their subsidiaries. The Congress shall, by law, provide for the manner Note: Nos. 1-6 above applies to the President. 1-5 in which one who is to act as President shall be selected until a President or a Vice-President shall applies to the Vice-President. 3-5 applies to have qualified, in case of death, permanent Members of Cabinet, their deputies or assistants. disability, or inability of the officials mentioned in the next preceding paragraph. Prohibition against increase of compensation during tenure. The prohibition against the change Section 8. In case of death, permanent disability, of their salary either by reduction or increase removal from office, or resignation of the President, during their term is meant to prevent the legislature the Vice-President shall become the President to from “weakening the fortitude by appealing to their serve the unexpired term. In case of death, avarice or corrupting their integrity by operating on permanent disability, removal from office, or their necessities. 277 resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Emoluments. The emoluments which they may Representatives, shall then act as President until the not receive during their tenure from the President or Vice-President shall have been elected government or any other source (that is, private) and qualified. refers to any compensation received for services The Congress shall, by law, provide who shall serve rendered or form possession of an office. This as President in case of death, permanent disability, means that the President cannot accept other or resignation of the Acting President. He shall serve employment elsewhere, whether in the government until the President or the Vice-President shall have or in the private sector, and must confine himself to been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the duties of his office.278 the Acting President. Reason for Inhibitions under Section 13. The inhibitions are in line with the principle that a public Section 10. The Congress shall, at ten o’clock in the morning of the third day after the vacancy in the office is a public trust and should not be abused for offices of the President and Vice-President occurs, personal advantage. Officers mention under convene in accordance with its rules without need of Section 13 (except the VP who may be appointed a call and within seven days enact a law calling for a to the Cabinet) are inhibited from holding any other special election to elect a President and a Vice- office or employment in the government during President to be held not earlier than forty-five days their tenure. This will discontinue the lucrative nor later than sixty days from the time of such call. practice of Cabinet members occupying seats in The bill calling such special election shall be the boards of directors of affluent corporations deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law owned or controlled by the government from which upon its approval on third reading by the Congress. they derived substantial income in addition to their Appropriations for the special election shall be277 Cruz, Philippine Political Law, p. 183 (1995 ed).278 279 Cruz, Philippine Political Law, p. 183 (1995 ed). Cruz, Philippine Political Law, p. 185 (1995 ed).I sweat, I bleed, I soar… 71Service, Sacrifice, Excellence
  • 72. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA charged against any current appropriations and shall 3. When the President-elect Vice-President elect be exempt from the requirements of paragraph 4, dies or is permanently becomes President Section 25, Article VI of this Constitution. The incapacitated before the convening of the Congress cannot be suspended beginning of his term nor the special election postponed. No special 4. When both the President The Senate President or election shall be called if the vacancy occurs within and Vice-President have not the Speaker- in that order- eighteen months before the date of the next yet been chosen or have acts as President until a presidential election. failed to qualify President or Vice- 5. When both shall have died President qualifies. Vacancy Situations: or become permanently 1. Vacancy that occurs at the start of the term incapacitated at the start of (Sec 7) the term. 2. Vacancy that occurs in mid-term (Sec 8) 6. When the Senate Congress will decide by 3. Vacancy in both the presidency and vice- President and the Speaker of law who will act as presidency. (Section 10) the House shall have died or President until a President shall have become or Vice-President shall Vacancy Situations under Section 7: permanently incapacitated, or are unable to assume office. have been elected and (The vacancy situations here occur after the office qualified. has been initially filled.) 1. When a President has been chosen but fails Section 8 to qualify at the beginning of his term Reason for Vacancy Succession 2. When no President has yet been chosen at 1. When the incumbent The vacancy created is the time he is supposed to assume office. President dies or is thus permanent. The Vice- 3. When the President-elect dies or is permanently disabled, is President becomes permanently incapacitated before the removed or resigns. President. beginning of his term 2. When both the President The Senate President or 4. When both the President and Vice-President and the Vice-President die, or the Speaker-in that order- have not yet been chosen or have failed to are permanently disabled, are shall act as President until qualify removed, or resign. a President of Vice- 5. When both shall have died or become President shall have been permanently incapacitated at the start of the qualified. term. 3. When the Acting President Congress will determine 6. When the Senate President and the dies, or is permanently by law who will act as Speaker of the House shall have died or incapacitated, is removed or President until a new shall have become permanently resigns. President or Vice- incapacitated, or are unable to assume President shall have office. qualified. Vacancy Situation under Section 8 Resignation. In Estrada v. Macapagal-Arroyo, the (Vacancy that occurs in mid-term) SC through Justice Puno (main opinion) declared 1. When the incumbent President dies or is that the resignation of President Estrada could not permanently disabled, is removed or be doubted as confirmed by his leaving resigns. Malacanang. The SC declared that the elements of 2. When both the President and the Vice- a valid resignation are (1) intent to resign; and (2) President die, or are permanently disabled, act of relinquishment. Both were present when are removed, or resign. President Estrada left the Palace. Justice Puno 3. When the Acting President dies, or is anchored his opinion mainly on the letter of permanently incapacitated, is removed or Estrada and on the diary of ES Edgardo Angara. resigns. Permanent Disability. In Estrada v. Macapagal-I. Rules of Succession Arroyo, Justice Bellosillo anchored his concurrence on permanent disability. He opined that permanent Section 7 disability as contemplated by the Constitution does Reason for Vacancy Succession not refer only to physical or mental incapacity, but1. When a President has The Vice-President must likewise cover other forms of incapacities of abeen chosen but fails to becomes acting President permanent nature, e.g. functional disability.qualify at the beginning of his until a President qualifies He views Estrada’s disability in (a) objective andterm (b) subjective perspectives.2. When no President has yet Objective Approach. “Without people, an effectivelybeen chosen at the time he is functioning cabinet, the military and the police, withsupposed to assume office. no recognition from Congress and the internationalI sweat, I bleed, I soar… 72Service, Sacrifice, Excellence
  • 73. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA community, [Estrada] had absolutely no support No special elections. No special election shall be from and control of the bureaucracy from within called if the vacancy occurs within eighteen months and from without. In fact he had no more before the date of the next presidential election. functioning government to speak of. It is in this context that [Estrada] was deemed absolutely J. Temporary Disability unable to exercise or discharge the powers, duties and prerogatives of the Presidency. Section 11. Whenever the President transmits to the Subjective Approach. [Estrada’s] contemporaneous President of the Senate and the Speaker of the acts and statements during and after the critical House of Representatives his written declaration episode are eloquent proofs of his implied-but that he is unable to discharge the powers and duties nevertheless unequivocal-acknowledgment of the of his office, and until he transmits to them a written permanence of his disability. declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Comment on Estrada v. Macapagal-Arroyo Whenever a majority of all the Members of the Bernas: In sum, 3 justices (Puno, Vitug and Pardo) Cabinet transmit to the President of the Senate and accepted some form of resignation; 2 jsutices to the Speaker of the House of Representatives their (Mendoza and Bellosillo) saw permanent disability; written declaration that the President is unable to 3 justices (Kapuna, Yners Santiago and Sandoval- discharge the powers and duties of his office, the Gutierrez) accepted the presidency of Arroyo as an Vice-President shall immediately assume the powers irreversible fact. 5 justices (Quisumbing, Melo, and duties of the office as Acting President. Thereafter, when the President transmits to the Buena, De Leon and gonzaga-Reyes) signed the President of the Senate and to the Speaker of the decision without expressing any opinion. Davide House of Representatives his written declaration and Panganiban abstained. In the light of all this, it that no inability exists, he shall reassume the powers is not clear what doctrine was established by and duties of his office. Meanwhile, should a majority the decision.280 of all the Members of the Cabinet transmit within five days to the President of the Senate and to the When the Senate President or Speaker becomes Speaker of the House of Representatives their Acting President, he does not lose the Senate written declaration that the President is unable to discharge the powers and duties of his office, the presidency or the speakership.281 Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, Section 10 within forty-eight hours, in accordance with its rules Call not needed. The Congress shall, at ten and without need of call. o’clock in the morning of the third day after the If the Congress, within ten days after receipt of the vacancy in the offices of the President and Vice- last written declaration, or, if not in session, within President occurs, convene in accordance with its twelve days after it is required to assemble, rules without need of a call and within seven days determines by a two-thirds vote of both Houses, voting separately, that the President is unable to enact a law calling for a special election to elect a discharge the powers and duties of his office, the President and a Vice-President to be held not Vice- President shall act as President; otherwise, the earlier than forty-five days nor later than sixty days President shall continue exercising the powers and from the time of such call. duties of his office. Bill deemed certified. The bill calling such special election shall be deemed certified under paragraph K. Serious Illness 2, Section 26, Article V1 of this Constitution and shall become law upon its approval on third Section 12. In case of serious illness of the reading by the Congress. President, the public shall be informed of the state of his health. The members of the Cabinet in charge of Appropriations. Appropriations for the special national security and foreign relations and the Chief election shall be charged against any current of Staff of the Armed Forces of the Philippines, shall appropriations and shall be exempt from the not be denied access to the President during such requirements of paragraph 4, Section 25, Article V1 illness. of this Constitution. Section 12 envisions not just illness which No suspension or postponement. The convening incapacitates but also any serious illness which can of the Congress cannot be suspended nor the be a matter of national concern.282 special election postponed. Reason for informing the public. To guarantee the people’s right to know about the state of President’s health, contrary to secretive practice in280 totalitarian regimes.283 Bernas Commentary, p 827 (2003 ed).281 Bernas Primer at 298 (2006 ed.) 282 Bernas Primer at 300 (2006 ed.)I sweat, I bleed, I soar… 73Service, Sacrifice, Excellence
  • 74. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Who has the duty to inform? The section does not specify the officer on whom the duty devolves. Same as the President. See Section 5. It is understood that the Office of the President would be responsible for making the disclosure. D. Prohibitions and Inhibitions Reason of the access. To allow the President to 1. Shall not receive increase compensation make the important decisions in those areas of during the term of the incumbent during which government.284 such increase was approved. (sec 6) 2. Shall not receive any other emoluments fromL. Removal from Office the government or any other source during their tenure. (sec 6) Ways of removal from office: 3. Unless otherwise provided in the Constitution, 1. By Impeachment shall not hold any other employment during 2. By People Power their tenure. 3. By Killing the President (e.g. Assassination)285 4. Shall not directly or indirectly practice any(Number 2 is extra constitutional and Number 3 is illegal. –asm). other profession, participate in any business,(But for purposes of examinations, answer number 1 only) or be financially interested in any contract with, (Impeachment will be discussed under Article XI) or in any franchise or special privilege granted by the government or any subdivision, agency, III. The Vice- President or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries during their tenure.Who is the Vice-President 5. Strictly avoid conflict of interest in the conductQualifications, Election, Term of Office of their office during their tenure. (Section 13)Oath of OfficeProhibitions/Inhibitions E. Vacancy in the Vice-PresidencyVacancyRemoval from OfficeAppointment to Cabinet Section 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominateA. Who is the Vice-President a Vice-President from among the Members of the Senate and the House of Representatives who shall His function is to be on hand to act as President assume office upon confirmation by a majority vote when needed or to succeed to the presidency in of all the Members of both Houses of the Congress, case of a permanent vacancy in the office. The voting separately. President may also appoint him as a Member of the Cabinet. Such appointment does not need the F. Removal from Office consent of the Commission on Appointments.286 He may be removed from office in the sameB. Qualifications, Election, Term of Office manner as the President. (Section 3) Section 3. There shall be a Vice-President F. Appointment to Cabinet who shall have the same qualifications and term of office and be elected with and in the The Vice-President may be appointed as a same manner as the President. xxx Member of the Cabinet. Such appointment requires no confirmation. (Section 3) No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the Justice Cruz submits that the Vice-President may office for any length of time shall not be considered not receive additional compensation as member of as an interruption in the continuity of the service for Cabinet because of the absolute prohibition in the full term for which he was elected. (Section 4) Section 3 of Article VII.287C. Oath of Office IV. POWERS OF THE PRESIDENT283 Bernas Commentary, p 832 (2003 ed).284 Bernas Commentary, p 832 (2003 ed). Constitutional Powers of the President285 Number 2 is extra constitutional and Number 3 is illegal. -asm 1. Executive Power286 2. Power of Appointment Bernas Primer at 291 (2006 ed.) 3. Power of Control 287 Cruz, Philippine Political Law, p. 183 (1995 ed).I sweat, I bleed, I soar… 74Service, Sacrifice, Excellence
  • 75. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 4. Military Powers an individual who is to exercise the functions of a 5. Pardoning Power given office.288 6. Borrowing Power It is distinguished from designation in that the 7. Diplomatic Power latter simply means the imposition of additional 8. Budgetary Power duties, usually by law, on a person already in the 9. Informing Power public service. 10. Other Powers It is also different from the commission in that the a. Call Congress to a Special Session (art 6, latter is the written evidence of the appointment. sec 15) b. Power to approve or veto bills (art 6 sec B. Nature of Power of Appointment 27) 1. Executive in Nature c. To consent to deputation of government 2. Non-delegability personnel by the Commission on 3. Necessity of Discretion Elections (art 19-C sec 2(4)) d. To discipline such deputies (art 19-C sec 1. Executive in Nature 2(8)) Appointing power is executive in nature. e. Emergency powers by delegation from (Government v. Springer) Indeed, the filling up of Congress (art 6 sec 23(2)) an office created by law is the implementation or f. Tariff Powers by delegation from execution of law.289 Congress (art 6 sec 28(2)) Although, intrinsically executive and therefore g. General Supervision over local pertaining mainly to the President, the appointing governments and autonomous regional power may be exercised by the legislature and by governments (art 10) the judiciary, as well as the Constitutional Commissions, over their own respective personnel V. Power of Appointment (See art 6 sec 16 (last sentence), Article VIII etc.) Implication. Since appointment to office is anDefinition of Appointment executive function, the clear implication is that theNature of Power of Appointment legislature may not usurp such function.Classification of Appointment The legislature may create an office and prescribeKinds of Presidential Appointment the qualifications of the person who may hold theScope of Appointing Power office, but it may neither specify who shall beAppointments needing Confirmation of CA appointed to such office nor actually appoint him.290Officials Who are to be Appointed by the PresidentSteps in the Appointing Process 2. Non-delegability.Appointment of Officers Lower in RankLimitations on the President’s Appointing power Facts: The Minister of Tourism designate petitioner as general manager of the Philippine Tourism Authority.Power of Removal When a new Secretary of Tourism was appointed, the President designated [him] as a general manager of Section 16. The President shall nominate and, with the PTA on the ground that the designation of petitioner the consent of the Commission on Appointments, was invalid since it is not made by the President as appoint the heads of the executive departments, provided for in PD 564. Petitioner claimed that his ambassadors, other public ministers and consuls, or removal was without just cause. officers of the armed forces from the rank of colonel Held: The appointment or designation of petitioner by or naval captain, and other officers whose the Minister of Tourism is invalid. It involves the appointments are vested in him in this Constitution. exercise of discretion, which cannot be delegated. He shall also appoint all other officers of the Even if it be assumed that the power could be Government whose appointments are not otherwise exercised by the Minister of Tourism, it could be provided for by law, and those whom he may be recalled by the President, for the designation was authorized by law to appoint. The Congress may, by provisional.291 (Binamira v. Garrucho) law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the 3. Necessity of Discretion heads of departments, agencies, commissions, or boards. Discretion is an indispensable part in the exercise The President shall have the power to make of power of appointment. Congress may not, appointments during the recess of the Congress, therefore, enact a statute which would deprive the whether voluntary or compulsory, but such President of the full use of his discretion in the appointments shall be effective only until disapproval nomination and appointment of persons to any by the Commission on Appointments or until the next public office. Thus it has been held that a statute adjournment of the Congress. 288 Cruz, Philippine Political Law, p. 189 (1995 ed).A. Definition of Appointment 289 Bernas Commentary, p 839 (2003 ed). 290 Definition of Appointment. Appointment is the Bernas Primer at 305 (2006 ed.) 291 selection, by the authority vested with the power, of Jacinto Jimenez, Political Law Compendium, p.313 (2006 ed.)I sweat, I bleed, I soar… 75Service, Sacrifice, Excellence
  • 76. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA unlawfully limits executive discretion in Permanent appointments are those extended to appointments when it provides for the drawing of persons possessing eligibility and are thus lots as a means to determine the districts to which protected by the constitutional guarantee of judges of first instance should be assigned by the security of tenure. 297 Chief Executive.292 Congress may not limit the President’s choice to one because it will be an 2. Temporary (2003 Bar Question) encroachment on the Prerogative of the Temporary appointments are given to persons President.293 without such eligibility, revocable at will and without the necessity of just cause or a valid Appointment is essentially a discretionary power investigation298; made on the understanding that and must be performed by the officer in which it is the appointing power has not yet decided on a vested according to his best lights, the only permanent appointee and that the temporary condition being that the appointee, if issued a appointee may be replaced at any time a permanent appointment, should possess the permanent choice is made. minimum qualification requirements, including the Civil Service eligibility prescribed by law for the Not subject to CA confirmation. A temporary position. This discretion also includes the appointment and a designation are not subject determination of the nature or character of the to confirmation by the Commission on appointment, i.e., whether the appointment is Appointments. Such confirmation, if given temporary or permanent.294 erroneously, will not make the incumbent a permanent appointee. (Valencia v. Peralta) The power to appoint includes the power to decide who among various choices is best qualified 3. Regular provided that the person chosen has the A regular appointment is one made by the qualification provided by law.295 Even the next-in- President while Congress is in session; takes effect rank rule of the Civil Service Code cannot be read only after confirmation by the Commission on as binding the appointing authority to choose the Appointments, and once approved, continues until first in the order of rank when two or more possess the end of the term of the appointee. the requisite qualifications.296 4. Ad Interim (1991, 1994 Bar Question) Q: The Revised Administrative Code of 1987 An ad interim appointment is one made by the provides, “All provincial and city prosecutors President while Congress is not in session; takes and their assistants shall be appointed by the effect immediately, but ceases to be valid if President upon the recommendation of the disapproved by the Commission on Appointments Secretary.” Is the absence of recommendation or upon the next adjournment of Congress. In the of the Secretary of Justice to the President latter case, the ad interim appointment is deemed fatal to the appointment of a prosecutor? “by-passed” through inaction. A: Appointment calls for discretion on the part The ad interim appointment is intended to prevent of the appointing authority. The power to interruptions in vital government services that appoint prosecutors is given to the President. would otherwise result form prolonged vacancies in The Secretary of Justice is under the control of government offices. the President. Hence, the law must be read simply as allowing the Secretary of Justice to Ad interim appointment is a permanent advice the President. (Bermudez v. Secretary, appointment. It is a permanent 1999) appointment because it takes effect immediately and can no longer be withdrawnC. Classification of Appointment (1994 Bar Question) by the President once the appointee1. Permanent qualified into office. The fact that it is subject2. Temporary to confirmation by the Commission on3. Regular Appointments does not alter its permanent4. Ad Interim character. (Matibag v. Benipayo, 2002) 1. Permanent (2003 Bar Question) Ad interim appointed, how terminated. 1. Disapproval of the appointment by292 the Commission on Appointments; Sinco, Philippine Political Law, p 272 (1954ed). 2. Adjournment by Congress without the293 Flores v. Drilon, 223 SCRA 568. CA acting on the appointment.294 Antonio B. Nachura, Outline/Reviewer in Political Law 274(2006 ed.) 297295 Bernas Primer at 305 (2006 ed.) Cruz, Philippine Political Law, p. 190 (1995 ed).296 298 Bernas Commentary, p 840 (2003 ed). Cruz, Philippine Political Law, p. 190 (1995 ed).I sweat, I bleed, I soar… 76Service, Sacrifice, Excellence
  • 77. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA There is no dispute that when the abused, they can also be a way of circumventing Commission on Appointments the need for confirmation by the Commission on disapproves an ad interim appointment, Appointments. the appointee can no longer be extended However, we find no abuse in the present case. a new appointment, inasmuch as the The absence of abuse is apparent from President approval is a final decision of the Arroyo’s issuance of ad interim appointments to Commission in the exercise of its respondents immediately upon the recess of checking power on the appointing Congress, way before the lapse of one year. authority of the President. Such (Pimentel v. Ermita, 2005) disapproval is final and binding on both the appointee and appointing power. D. Kinds of Presidential Appointment But when an ad interim appointment is by- 1. Appointments made by an Acting President passed because of lack of time or failure (Section 14) of the Commission on Appointments to 2. Appointments made by the President within organize, there is no final decision by the two months before the next presidential Commission to give or withhold its elections and up to the end of his term. consent to the appointment. Absent such (Section 15) decision, the President is free to renew 3. Regular Appointments (Section 16) the ad interim appointment. (Matibag v. 4. Recess or Ad interim Appointments (Section Benipayo) 13) Q: What happens if a special session is called E. Scope of the Power to Appoint and that session continues until the day before the start of the regular session? Do Officials to be Appointed by the President appointments given prior to the start of the special session lapse upon the end of the 1. Those officials whose appointments are vested special session or may they continue into the in him by the Constitution. (See Section 16, 1st regular session? sentence) A: Guevara v. Inocente again says that there • Heads of executive departments must be a “constructive recess” between the • Ambassadors, other public ministers sessions and thus appointments not acted and consuls upon during the special session lapse before • Officers of the armed forces from the start of the regular session.299 rank of colonel or naval captain • Article VIII, Section 9 provides that Difference between an ad interim appointment the President appoints member of the and an appointment in an acting capacity. SC and judges of lower courts 1. The former refers only to positions which need confirmation by the CA while the latter is also • The President also appoints given to those which do not need confirmation. members of JBC, chairmen and 2. The former may be given only when Congress members of the constitutional is not in session whereas the latter may be commissions (art 9,B, Sec 1(2); C, given even when Congress is in session. Section 1(2)), the Ombudsman and his deputies (art 11, sec 9). Acting Capacity. The essence of an appointment • Appointment of Sectoral in an acting capacity is its temporary nature. In Representatives (art 18 sec 7) case of a vacancy in an office occupied by an alter (Quintos-Deles v. Commission on ego of the President, such as the Office of Appointments) Department Secretary, the President must 2. Those whom he may be authorized by law necessarily appoint the alter ego of her choice as (Section 16, 2nd sentence) Acting Secretary before the permanent appointee 3. Any other officers of the government whose of her choice could assume office. appointments are not otherwise provided by Congress, through law, cannot impose on the law (Constitution or statutes). (Section 16, 2nd President the obligation to appoint automatically sentence) the undersecretary as her temporary alter ego. “An alter ego, whether temporary or permanent, holds Significance of enumeration in Section 16, 1st a position of great trust and confidence. Congress, sentence. The enumeration means that Congress in the guise of prescribing qualifications to an may not give to any other officer the power to office, cannot impose on the President who her appoint the above enumerated officers.300 alter ego should be.”Acting appointments are a way of temporarily filling important offices, but if299 300 Bernas Primer at 306 (2006 ed.)I sweat, I bleed, I soar… 77Service, Sacrifice, Excellence
  • 78. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERAF. Appointments needing the Confirmation of CA G. Steps in the Appointing Process (where COACA Confirmation confirmation is needed)Exclusive List 1. Nomination by the President 2. Confirmation of the Commission on Appointments 1. What appointments need confirmation by the 3. Issuance of the Commission Commission on Appointments? (1999 Bar Q) Those enumerated in the 1st sentence of Section Acceptance. An appointment is deemed complete 16: only upon its acceptance. Pending such 1. Heads of executive departments acceptance, the appointment may still be 2. Ambassadors, other public ministers and withdrawn. (Lacson v. Romero) consuls Appointment to a public office cannot be forced 3. Officers of the armed forces from rank of upon any citizen except for purposes of defense of colonel or naval captain the State under Article II Section 4. 4. Those other officers whose appointments H. Appointment of Officers Lower in Rank are vested in him in the Constitution. (Sarmiento v. Mison) (Note: Although the power to appoint Justices, judges, Section 16 (3rd sentence of first paragraph) The Congress may, by law, vest the appointment of Ombudsman and his deputies is vested in other officers lower in rank in the President alone, the President, such appointments do not in the courts, or in the heads of departments, need confirmation by the Commission on agencies, commissions, or boards. Appointments) Significance of the phrase “the President Why from rank of colonel. The provision alone”. Alone means to the exclusion of the courts, hopefully will have the effect of strengthening the heads of departments, agencies, commissions civilian supremacy over the military301 To some or boards. 303 extent, the decision of the Commission was influenced by the observation that coups are Appointing authority may also be given to other generally led by colonels.302 officials. Thus Section 16 says: “The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, Military officers. The clause “officers of the or in the heads of departments, agencies, armed forces from the rank of colonel or naval commissions, or boards.” In Rufino v Endriga304 captain” refers to military officers alone. interpreted this to mean that, when the authority is Hence, promotion and appointment of officers given to collegial bodies, it is to the chairman that of Philippine Coast Guard which is under the the authority is given. But he can appoint only DOTC (and not under the AFP), do not need officers “lower in rank,” and not officers equal in the confirmation of Commission on rank to him. Thus a Chairman may not appoint a Appointments. (Soriano v. Lista, 2003) Also, fellow member of a Board. promotion of senior officers of the PNP is not subject to confirmation of CA. PNP are not I. Limitations on the President’s Appointing Power members of the AFP. (Manalo v. Sistoza, 1999) Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by Chairman of CHR. The appointment of the the elected President within ninety days from his Chairman of the Commission on Human assumption or reassumption of office. Rights is not provided for in the Constitution or in the law. Thus, there is no necessity for such Section 15. Two months immediately before the appointment to be passed upon by the next presidential elections and up to the end of his Commission on Appointments. (Bautista v. term, a President or Acting President shall not make Salonga) appointments, except temporary appointments to executive positions when continued vacancies 2. Exclusive list therein will prejudice public service or endanger The Congress cannot by law require the public safety. confirmation of appointments of government officials other than those enumerated in the first Special Limitations sentence of Section 16 of Article VII. (Calderon v. Carale) 303 Bernas Commentary, p 847 (2003 ed).; The earlier view of Fr. Bernas confirmed by Sarmiento v. Mison, was that the retention of301 Bernas Commentary, p 844 (2003 ed). the phrase “President alone” was an oversight.302 304 II RECORD 394-395. G.R. No. 139554, July 21, 2006.I sweat, I bleed, I soar… 78Service, Sacrifice, Excellence
  • 79. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 1. (Anti-Nepotism Provision) The President ban. (In Re Appointment of Mateo may not appoint his spouse and relatives by Valenzuela, 1998) consanguinity or affinity within the fourth civil degree as Members of the Constitutional Provision applies only to presidential Commission, as Ombudsman, or as appointments. The provision applies only to Secretaries, Undersecretaries, chairmen or presidential appointments. There is no law heads of Bureaus or offices, including that prohibits local executive officials from government owned-or-controlled corporations. making appointments during the last days of (Section 13) their tenure. (De Rama v. CA) 2. Appointments extended by an acting President Other Limitations: shall remain effective unless revoked by the 1. The presidential power of appointment may elected President within 90 days form his also be limited by Congress through its power assumption of office. (Section 14) to prescribe qualifications for public office. 3. (Midnight Appointments)Two months 2. The judiciary may annul an appointment made immediately before the next presidential by the President if the appointee is not elections and up to the end of his term, a qualified or has not been validly confirmed.306 President or acting President shall not make appointments except for temporary J. Power of Removal appointments to executive positions when continued vacancies therein will prejudice The President possesses the power of removal by public service or endanger public safety. implication from other powers expressly vested in (Section 15) him. 4. The President shall have the power to make 1. It is implied from his power to appoint appointments during the recess of the 2. Being executive in nature, it is implied Congress, whether voluntary or compulsory, from the constitutional provision vesting but such appointments shall be effective only the executive power in the President. until disapproval by the CA or until the next 3. It may be implied from his function to take adjournment of Congress. (Section 16 par. 2) care that laws be properly executed; for without it, his orders for law enforcement Rule [Section 15] applies in the might not be effectively carried out. appointments in the Judiciary. Two 4. The power may be implied fro the months immediately before the next President’s control over the administrative presidential elections and up to the end of departments, bureaus, and offices of the his term, a President or Acting President government. Without the power to shall not make appointments, except remove, it would not be always possible temporary appointments to executive for the President to exercise his power of positions when continued vacancies therein control.307 will prejudice public service or endanger public safety. Since the exception applies As a general rule, the power of removal may be only to executive positions, the prohibition implied from the power of appointment. 308 However, covers appointments to the judiciary.305 the President cannot remove officials appointed by During this period [2 months immediately him where the Constitution prescribes certain before the next presidential elections…], the methods for separation of such officers from public President is neither required to make service, e.g., Chairmen and Commissioners of appointments to the courts nor allowed to do Constitutional Commissions who can be removed so. only by impeachment, or judges who are subject to Section 4(1) and 9 of Article VIII simply the disciplinary authority of the Supreme Court. In mean that the President is required by law to the cases where the power of removal is lodged in fill up vacancies in the courts within the the President, the same may be exercised only for same time frames provided therein unless cause as may be provided by law, and in prohibited by Section 15 of Article VII. While the filing up of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of 306 Cruz, Philippine Political Law, p. 195 (1995 ed). any compelling reason to justify the making 307 Sinco, Philippine Political Law, p 275 (1954ed).; But See Ang- of the appointments during the period of the Angco v. Castillo, “The power of control is not the source of the Executive’s disciplinary power over the person of his subordinates. Rather, his disciplinary power flows from his305 power to appoint.” Bernas Primer at 313 (2006 ed). In re: Appointment of Valenzuela, AM 98-0501 SC, November 9, 3081998. Cruz, Philippine Political Law, p. 196 (1995 ed).I sweat, I bleed, I soar… 79Service, Sacrifice, Excellence
  • 80. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA accordance with the prescribed administrative may take such action or steps as prescribed by law procedure. to make them perform these duties.314 Members of the career service. Members of the Bernas Primer: Power of Supervision is the power career service of the Civil Service who are of a superior officer to “ensure that the laws are appointed by the President may be directly faithfully executed” by inferiors. The power of disciplined by him. (Villaluz v. Zaldivar) provided supervision does not include the power of control; that the same is for cause and in accordance with but the power of control necessarily includes the the procedure prescribed by law. power of supervision.315 Members of the Cabinet. Members of the Cabinet Control Supervision and such officers whose continuity in office An officer in control Supervision does not depends upon the President may be replaced at lays down the rules in cover the authority to any time. (Legally speaking, their separation is the doing of an act. lay down the rules. effected not by removal but by expiration of Supervisor or term.309) (See Alajar v. CA) superintendent merely sees to it that the rules VI. Power of Control are followed. If rules are not If the rules are notControl followed, he may, in observed, he may orderControl v. Supervision his discretion, order the work done or re-The President and Power of Control the act undone, re- done but only toAlter ego Principle; Doctrine of Qualified Political done by his conform to theAgency subordinate or he prescribed rules. HeSupervision over LGUs may decide to do it may not prescribe hisThe Take-Care Clause himself. own manner for the doing of the act. He has Section 17. The President shall have control of all no judgment on this the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. matter except to see to it that the rules are followed. (Drilon v. Lim)A. Control C. The President and Power of Control Control is the power of an officer to alter or modify Power of Control of the President or nullify or set aside what a subordinate officer Scope had done in the performance of his duties and to Section 17 is self-executing substitute the judgment of the former for that of the Not a Source of Disciplinary Powers latter.310 1. Power of Control of the President It includes the authority to order the doing of an act [Power of Control] has been given to the President by a subordinate or to undo such act or to assume over all executive officers from Cabinet members to a power directly vested in him by law. 311 The power the lowliest clerk. This is an element of the of control necessarily includes the power of presidential system where the President is “the supervision.312 Executive of the government.”316B. Control v. Supervision The power of control vested in the President by the Constitution makes for a strongly centralized Control is a stronger power than mere administrative system. It reinforces further his supervision.313 position as the executive of the government, enabling him to comply more effectively with his Supervision. Supervision means overseeing or constitutional duty to enforce laws. The power to the power or authority of an officer to see that prepare the budget of the government strengthens subordinate officer performs their duties. If the the President’s position as administrative head.317 latter fail or neglect to fulfill them, then the former 2. Scope309 Cruz, Philippine Political Law, p. 197 (1995 ed).310 Mondano v. Silvosa 314 Mondano v. Silvosa311 315 Cruz, Philippine Political Law, p. 198 (1995 ed). Bernas Primer at 313 (2006 ed.)312 316 Bernas Primer at 313 (2006 ed.) Bernas Primer at 310 (2006 ed.)313 317 Cruz, Philippine Political Law, p. 198 (1995 ed). Sinco, Philippine Political Law, p 243 (1954ed).I sweat, I bleed, I soar… 80Service, Sacrifice, Excellence
  • 81. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA a. The President shall have control of all the The President derives power of control directly executive departments, bureaus, and offices. from the Constitution and not from any (Section 17) implementing legislation. Such a law is in fact unnecessary and will even be invalid if it limits the b. The President has control over officers of exercise of his power or withdraws it altogether GOCCs. (NAMARCO v. Arca) (Bernas: It is from the President.322 submitted that such power over government- owned corporation comes not from the 4. Power of Control is not the source of the Constitution but from statute. Hence, it may also Executive’s disciplinary power be taken away by statute.) The power of control is not the source of the Executive’s disciplinary power over the person of c. Control over what? The power of control is his subordinates. Rather, his disciplinary power exercisable by the President over the acts of his flows from his power to appoint. (Ang-Angco v. subordinates and not necessarily over the Castillo)323 subordinate himself. (Ang-angco v. Castillo) It can be said that the while the Executive has D. Alter Ego Principle; Doctrine of Qualified Political control over the “judgment” or “discretion” of his Agency subordinates, it is the legislature which has Doctrine control over their “person.”318 When Doctrine not Applicable Reason for the Doctrine d. Theoretically, the President has full control of Power of Control exercised by Department Heads all the members of the Cabinet. He may appoint Power of Control exercised by ES them as he sees fit, shuffle them at pleasure, Abakada Case and replace them in his discretion without any legal inhibition whatever.319 1. Doctrine The doctrine recognizes the establishment of a e. The President may exercise powers conferred single executive. The doctrine postulates that, “All by law upon Cabinet members or other executive and administrative organizations are subordinate executive officers. (City of Iligan v. adjuncts of the Executive Department, the heads of Director of Lands) Even where the law provides the various executive departments are assistants that the decision of the Director of Lands on and agents of the Chief Executive, and, (except in questions of fact shall be conclusive when cases where the Chief Executive is required by the affirmed by the Sec of DENR, the same may, on Constitution or law to act in person or the appeal to the President, be reviewed and exigencies of the situation demand that he act reversed by the Executive Secretary. (Lacson- personally,) the multifarious executive and Magallanes v. Pano) administrative functions of the Chief Executive are performed by and through the executive f. It has been held, moreover, that the express departments, and the acts of the secretaries of grant of the power of control to the President such departments, performed and promulgated justifies an executive action to carry out the in the regular course of business, are, unless reorganization of an executive office under a disapproved or reprobated by the Chief broad authority of law.320 A reorganization can Executive presumptively, the acts of the Chief involve the reduction of personnel, consolidation Executive” (Villena v. Sec. of Interior) of offices, or even abolition of positions by reason of economy or redundancy of functions. Put simply, when a department secretary makes a While the power to abolish an office is generally decision in the course of performing his or her lodged with the legislature, the authority of the official duties, the decision, whether honorable or President to reorganize the executive branch, disgraceful, is presumptively the decision of the which may include such abolition, is permissible President, unless he quickly and clearly disowns under present laws.321 it.324 3. Section 17 is a self-executing provision 2. When Doctrine not Applicable Qualified political agency does NOT apply if the President is required to act in person by law or by318 Bernas Primer at 313 (2006 ed.)319 322 Cruz, Philippine Political Law, p. 199 (1995 ed). Cruz, Philippine Political Law, p. 199 (1995 ed).320 323 Anak Mindanao v. Executive Sec, G.R. No. 166052 , August 29, Bernas Primer at 313 (2006 ed.)2007; Tondo Medical Center Employees v. CA. G.R. No. 167324, 324 Fr. Bernas in his Inquirer column, “A Golden Opportunity forJuly 17, 2007; GMA”.321 Malaria Employees v. Executive Secretary, G.R. No. http://opinion.inquirer.net/inquireropinion/columns/view_article.php?160093, July 31, 2007. article_id=107245I sweat, I bleed, I soar… 81Service, Sacrifice, Excellence
  • 82. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA the Constitution. Example: The power to grant E. Power of Supervision over LGUs pardons must be exercised personally by the President. The power of the President over local governments is only one of general supervision.329 (See Article X, 3. Reason for the Doctrine Sections 4 and 16) Since the executive is a busy man, he is not expected to exercise the totality of his power of The President can only interfere in the affairs and control all the time. He is not expected to exercise activities of a local government unit if he finds that all his powers in person. He is expected to the latter had acted contrary to law. (Judge Dadole delegate some of them to men of his confidence, v. COA) particularly to members of his Cabinet. Thus, out of this practical necessity has risen what has come A law (RA 7160 Sec 187) which authorizes the to be referred to as “doctrine of qualified political Secretary of Justice to review the constitutionality agency.”325 of legality of a tax ordinance—and if warranted, to revoke it on either or both grounds—is valid, and 4. Power of Control exercised by Department does not confer the power of control over local Heads in the President’s Behalf government units in the Secretary of Justice, as The President’s power of control means his power even if the latter can set aside a tax ordinance, he to reverse the judgment of an inferior officer. It cannot substitute his own judgment for that of the may also be exercised in his behalf by Department local government unit. (Drilon v. Lim) Heads. Thus the Secretary of Justice may reverse the judgment of a prosecutor and direct him to F. Faithful Execution Clause; Take Care Clause withdraw an information already filed. Such action is not directly reviewable by a court. One who The power to take care that the laws be faithfully disagrees, however, may should appeal to the executed makes the President a dominant figure in Office of the President in order to exhaust the administration of the government.330 administrative remedies prior to bring it to court.326 The President shall ensure that the laws be 5. Power of Control exercised by the ES faithfully executed. (Section 17 2nd sentence) The The Executive Secretary when acting “by authority law he is supposed to enforce includes the of the President” may reverse the decision of Constitution, statutes, judicial decisions, another department secretary. (Lacson-Magallanes administrative rules and regulations and municipal v. Pano) 327 ordinances, as well as treaties entered into by government.331 6. Abakada Case Petitioners argue that the EVAT law is This power of the President is not limited to the unconstitutional, as it constitutes abandonment by enforcement of acts of Congress according to their Congress of its exclusive authority to fix the rate of express terms. The President’s power includes “the taxes and nullififed the President’s power of control rights and obligations growing out of the by mandating the fixing of the tax rate by the Constitution itself, international relations, and all President upon the recommendation of the the protection implied by the nature of the Secretary of Finance. The SC ruled that the government under the Constitution.332 Secretary of Finance can act as agent of the Legislative Department to determine and declare The reverse side of the power to execute the law is the event upon which its expressed will is to take the duty to carry it out. The President cannot refuse effect. His personality in such instance is in reality to carry out a law for the simple reason that in his but a projection of that of Congress. Thus, being judgment it will not be beneficial to the people. 333 the agent of Congress and not of the President, the As the Supreme Court pointed out, “after all we still President cannot alter or modify or nullify, or set live under a rule of law.” aside the findings of the Secretary of Finance and to substitute the judgment of the former to the It has been suggested that the President is not latter.328 (Abakada Guro v. ES, 2005) under obligation to enforce a law which in his belief is unconstitutional because it would create no325 329 Bernas Commentary, p 857 (2003 ed). Bernas Primer at 313 (2006 ed.)326 Orosa v. Roa, GR 14047, July 14, 2006; DENR v. DENR 330 Cruz, Philippine Political Law, p. 203 (1995 ed).Employees, G.R. No. 149724. August 19, 2003 331327 Cruz, Philippine Political Law, p. 203 (1995 ed). See the case of Neri v. Senate Committee on the authority of ES 332to invoke Executive Immunity. -asm In Re Neagle, 135 US 1 (1890). Bernas Commentary, p 863328 (2003 ed). San Beda College of Law, 2008 Centralized Bar Operations, 333Political Law Reviewer, p. 29. Bernas Commentary, p 863 (2003 ed)I sweat, I bleed, I soar… 82Service, Sacrifice, Excellence
  • 83. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA rights and confer no duties being totally null and judicially charged within three days, otherwise he void. The better view is that it is not for him to shall be released. determine the validity of a law since this is a question exclusively addressed to the judiciary. A. The Military Power (1987 Bar Question) Hence, until and unless a law is declared unconstitutional, the President has a duty to Section 18 bolsters the principle announced in execute it regardless of his doubts on its validity. A Article II, Section 3 that “civilian authority is at all contrary opinion would allow him not only to negate times, supreme over the military.” By making the the will of legislature but also to encroach upon the President the commander-in-chief of all the armed prerogatives of the judiciary.334 forces, the Constitution lessens the danger of a military take-over of the government in violation of its republican nature.335 VII. Military Power/Emergency PowersThe Military Power Section 18 grants the President, as Commander-Limitations on Military Power in-Chief, a sequence of graduated powers. FromCommander-in-Chief Clause/ Calling Out Power the most to the least benign, these are: the callingSuspension of the Privilege out power, the power to suspend the privilege ofMartial Law the writ of habeas corpus, and the power to declare martial law. (Sanlakas v. Executive Secretary) Section 18. The President shall be the Commander- in-Chief of all armed forces of the Philippines and The power of the sword makes the President the whenever it becomes necessary, he may call out most important figure in the country in times of war such armed forces to prevent or suppress lawless or other similar emergency.336 It is because the violence, invasion or rebellion. In case of invasion or sword must be wielded with courage and resolution rebellion, when the public safety requires it, he may, that the President is given vast powers in the for a period not exceeding sixty days, suspend the making and carrying out of military decisions.337 privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of The military power enables the President to: martial law or the suspension of the privilege of the 1. Command all the armed forces of the writ of habeas corpus, the President shall submit a Philippines; report in person or in writing to the Congress. The 2. Suspend the privilege of the writ of Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special habeas corpus session, may revoke such proclamation or 3. Declare martial law suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, B. Limitations on Military Power338 (1987, 2000 Bar the Congress may, in the same manner, extend such Question) proclamation or suspension for a period to be determined by the Congress, if the invasion or 1. He may call out the armed forces to prevent or rebellion shall persist and public safety requires it. suppress lawless violence, invasion or rebellion The Congress, if not in session, shall, within twenty- only. four hours following such proclamation or suspension, convene in accordance with its rules 2. The grounds for the suspension of the privilege of without need of a call. the writ of habeas corpus and the proclamation of The Supreme Court may review, in an appropriate martial law are now limited only to invasion or proceeding filed by any citizen, the sufficiency of the rebellion. factual basis of the proclamation of martial law or the 3. The duration of such suspension or proclamation suspension of the privilege of the writ or the extension thereof, and must promulgate its decision shall not exceed sixty days, following which it shall thereon within thirty days from its filing. be automatically lifted. A state of martial law does not suspend the 4. Within forty-eight hours after such suspension or operation of the Constitution, nor supplant the proclamation, the President shall personally or in functioning of the civil courts or legislative writing report his action to the Congress. If not in assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over session, Congress must convene within 24 hours. where civil courts are able to function, nor 5. The Congress may then, by majority votes of all its automatically suspend the privilege of the writ. members voting jointly, revoke his action. The The suspension of the privilege of the writ shall revocation may not set aside by the President. apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. 335 Cruz, Philippine Political Law, p. 204 (1995 ed). During the suspension of the privilege of the writ, 336 any person thus arrested or detained shall be Cruz, Philippine Political Law, p. 205 (1995 ed). 337 Cruz, Philippine Political Law, p. 205 (1995 ed).334 338 Cruz, Philippine Political Law, p. 203 (1995 ed). Cruz, Philippine Political Law, p. 213 (1995 ed).I sweat, I bleed, I soar… 83Service, Sacrifice, Excellence
  • 84. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA6. By the same vote and in the same manner, the has the power to conduct legislative hearings, Congress may, upon initiative of the President, Congress may make use of remedies under the extend his suspension or proclamation for a period law to compel attendance. Any military official to be determined by the Congress if the invasion or whom Congress summons to testify before it may rebellion shall continue and the public safety be compelled to do so by the President. If the requires extension. President is not so inclined, the President may be7. The action of the President and the Congress shall commanded by judicial order to compel the be subject to review by the Supreme Court which attendance of the military officer. Final judicial shall have the authority to determine the sufficiency orders have the force of the law of the land which of the factual basis of such action. This matter is no the President has the duty to faithfully execute.340 longer considered a political question and may be raised in an appropriate proceeding by any citizen. 2. Civilian Supremacy (Bernasian view) Moreover, the Supreme Court must decide the Is the President a member of the armed challenge within thirty days from the time it is filed. forces?8. Martial law does not automatically suspend the Dichotomy of views: privilege of the writ of habeas corpus or the Sinco: The President is not only a civil official. operation of the Constitution. The civil courts and As commander-in-chief of all armed forces, the the legislative bodies shall remain open. Military President is also a military officer. This dual role courts and agencies are not conferred jurisdiction given by the Constitution to the President is over civilians where the civil courts are functioning. intended to insure that the civilian controls the military.3419. The suspension of the privilege of the writ of Bernas: The weight of authority favors the habeas corpus shall apply only to persons facing position that the President is not a member of charges of rebellion or offenses inherent in or the armed forces but remains a civilian. directly connected with invasion. The President’s duties as Commander-in-Chief10. Any person arrested for such offenses must be represent only a part of the organic duties judicially charged therewith within three days. imposed upon him. All his other functions are Otherwise shall be released. clearly civil in nature. • He is elected as the highest civilian officerC. Commander-in-Chief Clause; Calling Out Power • His compensation is received for hisPower over the military services rendered as President of theCivilian Supremacy nation, not for the individual part of hisCalling-out Power duties; no portion of its is paid from sums appropriated for the military or naval The President shall be the Commander-in-Chief of all forces. armed forces of the Philippines and whenever it • He is not subject to court martial or other becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, military discipline invasion or rebellion. (Section 18, 1st sentence) • The Constitution does not require that the President must be possessed of military 1. Power over the Military. training and talents. The President has absolute authority over all This position in fact, is the only one compatible members of the armed forces. (Gudani v. Senga, with Article II, Section 3, which says” “Civilian 2006) He has control and direction over them. As authority is at all times, supreme over the Commander-in-chief, he is authorized to direct the military.” The net effect thus of Article II, Section3 movements of the naval and the military forces when read with Article VII, Section 18 is that a placed by law at his command, and to employ them civilian President holds supreme military in manner he may deem most effectual to harass authority and is the ceremonial, legal, and and conquer and subdue the enemy.339 administrative head of the armed forces.342 Since the President is commander-in-chief of the 3. Calling Out Power under Section 18 (2006 Bar Armed Forces she can demand obedience from Question) military officers. Military officers who disobey or Most Benign power of Section 18 ignore her command can be subjected to court Use of Calling Out Power Vests No Constitutional martial proceeding. Thus, for instance, the or Statutory Powers President as Commander in Chief may prevent a Declaration of State of Rebellion member of the armed forces from testifying before Declaration of State of National Emergency a legislative inquiry. A military officer who disobeys the President’s directive may be made to answer 340 Gudani v. Senga, G.R. No. 170165, April 15. 2006. before a court martial. Since, however, Congress 341 Sinco, Philippine Political Law, p 261 (1954ed).339 342 Bernas Commentary, p 866 (2003 ed) citing Fleming v. Page. Bernas Commentary, p 865 (2003 ed).I sweat, I bleed, I soar… 84Service, Sacrifice, Excellence
  • 85. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Calling out Power and Judicial Review NO. Section 18 grants the President the calling out power. The only criterion for the exercise is a. Most Benign power of Section 18. The that “whenever it becomes necessary”, the President may call the armed forces “to prevent or diminution of any constitutional rights through the suppress lawless violence, invasion or rebellion” suspension of the privilege of the writ or the These conditions are present in this case. declaration of martial law is deemed as “strong Considering the circumstances then prevailing medicine” to be used sparingly and only as a last PGMA found it necessary to issue PP1017. Owing resort, and for as long as only truly necessary. to her Office’s vast intelligence network, she is in Thus, the invocation of the “calling out” power the best position to determine the actual condition stands as a balanced means of enabling a in her country. PP1017 is constitutional insofar heightened alertness in dealing with the armed as it constitutes a call by PGMA on the AFP to prevent or suppress lawless violence. threat, but without having to suspend any constitutional or statutory rights or cause the e. President’s action in calling out the armed creation of any new obligations. forces, and judicial review. It may be gathered from the broad grant of power that the actual use to b. Vests no new constitutional or statutory which the President puts the armed forces, is powers. For the utilization of the “calling out” unlike the suspension of the privilege of writ of power alone cannot vest unto the President any habeas corpus, not subject to judicial review.343 new constitutional or statutory powers, such as the enactment of new laws. At most, it can only renew But, wait! While the Court considered the emphasis on the duty of the President to execute President’s “calling-out” power as a discretionary already existing laws without extending a power solely vested in his wisdom and that it corresponding mandate to proceed extra- cannot be called upon to overrule the President’s constitutionally or extra-legally. Indeed, the “calling wisdom or substitute its own, it stressed that “this out” power does not authorize the President or the does not prevent an examination of whether such members of the Armed Forces to break the law. power was exercised within permissible constitutional limits or whether it was exercised in a c. Declaration of State of Rebellion. Declaration manner constituting grave abuse of discretion. (IBP of the state of rebellion is within the calling-out v. Zamora) Judicial inquiry can go no further than to power of the President. When the President satisfy the Court not that the President’s decision is declares a state of emergency or a state of correct, but that “the President did not act rebellion her action is merely a description of the arbitrarily.” Thus, the standard is not correctness, situation as she sees it but it does not give her new but arbitrariness. It is incumbent upon the petitioner powers. The declaration cannot diminish or violate to show that the President’s decision is totally constitutionally protected rights. (Sanlakas v. bereft of factual basis” and that if he fails, by way of Executive Secretary, G.R. No. 159085, February proof, to support his assertion, then “this Court 3, 2004.) cannot undertake an independent investigation beyond the pleadings. (IBP v. Zamora cited in d. Declaration of a “state of national David v. Arroyo) emergency”. The President can validly declare a state of national emergency even in the absence of D. Suspension of the Privilege congressional enactment. (David v. Ermita) (2006 Bar Question) Writ of Habeas Corpus Privilege of the Writ of Habeas Corpus PP 1017 case Suspension of the Privilege, Meaning Facts: On February 24, 2006, President Arroyo General Limitations on the power to Suspend issued Presidential Proclamation 1017 declaring a To whom Applicable state of national emergency. The Solicitor General Effect on Applicable Persons enumerated the following events that lead to the Grounds issuance of PP1017: Duration 1. Escape of Magdalo group and their Four Ways to Lift the Suspension audacious threat of the Magdalo D-day Duty of the President 2. The defecations in the Military, particularly Role of Congress in the Phil. Marines Role of the Supreme Court 3. Reproving statements of the communist leaders 4. Minutes of the Intelligence Report and 1. Writ of HC Security Group of the Philippine Army showing the growing alliance between the The writ. The writ of habeas corpus is a writ NPA and the military. directed to the person detaining another, Did PGMA gravely abuse her discretion in commanding him to produce the body of the calling out the AFP? 343 Bernas Commentary, p 866 (2003 ed)I sweat, I bleed, I soar… 85Service, Sacrifice, Excellence
  • 86. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA prisoner at a designated time and place, with the Held: The contention of AFP officers has not merit. day and cause of his caption and detention, to do, The suspension of the privilege of the writ of habeas to submit to, and receive whatever the court or corpus does not render valid an otherwise illegal arrest or detention. What is suspended is merely judge awarding the writ shall consider in his behalf. the right of individual to seek release from (Bouvier’s Law Dictionary) (Hence, an essential detention through the writ of habeas corpus.346 requisite for the availability of the writ is actual (Aberca v. Ver, 160 SCRA 590) deprivation of personal liberty) (Simply put, a writ of habeas corpus is a writ of liberty) 4. General Limitations on the power to suspend the privilege Purpose. The great object of which is the liberation 1. Time limit of 60 days of those who may be in prison without sufficient 2. Review and possible revocation by Congress cause.344 3. Review and possible nullification by SC347 To what Habeas Corpus extends. Except as 5. To whom Applicable otherwise provided by law, the writ of habeas corpus shall extend to all cases of illegal The suspension of the privilege of the writ shall confinement or detention by which any person is apply only to persons judicially charged for deprived of his liberty, or by which the rightful rebellion or offenses inherent in or directly custody of any person is withheld from the person connected with invasion. entitled thereto. (Rule 102, Section 1 or Rules of COurtt) 6. Effect on Applicable Persons 2. Privilege of the writ of HC During the suspension of the privilege of the writ, any person thus arrested or detained shall be Privilege. It is the right to have an immediate judicially charged within three days, otherwise he determination of the legality of the deprivation of shall be released. (Article VI Section 18) physical liberty. The suspension of the privilege of the writ does not 3. Suspension of the privilege. impair the right to bail. (Article III Section 13) In case of invasion or rebellion, when the public 7. (Grounds) Factual Bases for Suspending the safety requires it, [the President] may, for a period Privilege (1997 Bar Question) not exceeding sixty days, suspend the privilege of 1. In case of invasion or rebellion the writ of habeas corpus. 2. When the public safety requires it Suspension of the Privilege, Meaning. 8. Duration. Suspension of the privilege does not suspend the writ itself, but only it’s privilege. This means that when the court receives an application for the writ, Not to exceed sixty days, following which it shall be and it finds the petition in proper form, it will issue lifted, unless extended by Congress. the writ as a matter of course, i.e., the court will issue an order commanding the production before 9. Four Ways to Lift the Suspension the court of the person allegedly detained, at a time 1. Lifting by the President himself and place stated in the order, and requiring the true 2. Revocation by Congress cause of his detention to be shown to the court. If 3. Nullification by the Supreme Court the return to the writ shows that the person in 4. By operation of law after 60 days custody was apprehended and detained in areas where the privilege of the writ has been suspended 10. Duty of the President or for crimes mentioned in the executive proclamation, the court will suspend further Within forty-eight hours from the proclamation of proceedings in the action.345 (1997 Bar Question) martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a Facts: Claiming they were illegally arrested without report in person or in writing to the Congress. any warrant of arrest, petitioners sued several officers of the AFP for damages. The officers of the 11. Role of Congress AFP argued that the action was barred since the suspension of the privilege of the writ of habeas a. Congress convenes corpus precluded judicial inquiry into the legality of b. Congress may either revoke or (with President’s their detention. initiative) extend344 346 Moran, Rules of Court, Vol. II, 499. Jacinto Jimenez, Political Law Compendium, 322 (2006 ed.)345 347 Cruz, Philippine Political Law, p. 210 (1995 ed). Bernas Primer at 318 (2006 ed.)I sweat, I bleed, I soar… 86Service, Sacrifice, Excellence
  • 87. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA “public safety” as the object of the exercise of Congress convenes. The Congress, if not in martial law. Public safety is the concern of police session, shall, within twenty-four hours following power. such proclamation or suspension, convene in accordance with its rules without need of a call. What is peculiar, however, about martial law as police power is that, whereas police power is Congress may revoke. The Congress, voting normally a function of the legislature executed by jointly, by a vote of at least a majority of all its the civilian executive arm, under martial law, police Members in regular or special session, may revoke power is exercised by the executive with the aid of such proclamation or suspension, which revocation the military. shall not be set aside by the President. Martial law is a flexible concept. Martial law depends on two factual bases: (1) the existence of Congress may extend. Upon the initiative of the invasion or rebellion; and (2) the requirements of President, the Congress may, in the same manner, public safety. extend such proclamation or suspension for a Necessity creates the conditions for martial law period to be determined by the Congress, if the and at the same time limits the scope of martial invasion or rebellion shall persist and public safety law. Certainly, the necessities created by a state of requires it. invasion would be different from those created by rebellion. Necessarily, therefore the degree and 12. Role of Supreme Court kind of vigorous executive action needed to meet the varying kinds and degrees of emergency could The Supreme Court may review, in an appropriate not be identical under all conditions. (The common proceeding filed by any citizen, the sufficiency of denominator of all exercise by an executive officer the factual basis of the proclamation of martial law of the discretion and judgment normally exercised or the suspension of the privilege of the writ or the by a legislative or judicial body.) extension thereof, and must promulgate its decision thereon within thirty days from its filing. 3. Proclamation of Martial LawE. Martial Law In case of invasion or rebellion, when the publicMartial Law, Definition (Under the 1987 Constitution) safety requires it, [the President] may, for a periodMartial Law, Nature not exceeding sixty days, suspend the privilege ofProclamation of Martial Law the writ of habeas corpus or place the PhilippinesGeneral Limits on the Power to Proclaim… or any part thereof under martial law.Effects of Proclamation of Martial LawGrounds Q: Is PP 1017 actually a declaration of MartialDuration law?Four Ways to Lift the Suspension A: No. It is merely an exercise of PGMA’sDuty of the President calling-out power for the armed forces to assistRole of Congress her in preventing or suppressing lawlessRole of the Supreme Court (Open Court Doctrine) violence. It cannot be used to justify act that only under a valid of declaration of Martial Law 1. Martial Law, Definition. can be done. (David v. [Ermita]) Martial law in its strict sense refers to that law 4. General Limitations on the power to proclaim which has application when civil authority calls 1. Time limit of 60 days upon the military arm to aid it in its civil function. 2. Review and possible revocation by Congress Military arm does not supersede civil authority. 3. Review and possible nullification by SC349 Martial law in the Philippines is imposed by the 5. Effects of Proclamation of Martial Law Executive as specifically authorized and within the limits set by the Constitution.348 A State of martial law does not: 1. Suspend the operation of the Constitution 2. Martial Law, Nature 2. Supplant the functioning of the civil courts or a. Essentially police power legislative assemblies b. Scope of Martial Law: Flexible Concept 3. Authorize the conferment of jurisdiction on military courts and agencies over where civil Martial law is essentially police power. This is courts are able to function borne out of the constitutional text which sets down348 349 Bernas Commentary, p 870 (2003 ed). Bernas Primer at 318 (2006 ed.)I sweat, I bleed, I soar… 87Service, Sacrifice, Excellence
  • 88. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 4. Automatically suspend the privilege of the writ. such proclamation or suspension, which revocation (Section 18) shall not be set aside by the President. Open Court Doctrine. Civilians cannot be Congress may extend. Upon the initiative of the tried by military courts if the civil courts are President, the Congress may, in the same manner, open and functioning. (Olaguer v. Military extend such proclamation or suspension for a Commission) period to be determined by the Congress, if the invasion or rebellion shall persist and public safety The President can: (This is based on UP and Beda requires it. 2008 Bar Reviewers; But see excerpt from Bernas Commentary) 11. Role of Supreme Court (2006 Bar Question) 1. Legislate 2. Order the arrest of people who obstruct the The Supreme Court may review, in an appropriate war effort. proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law Bernas Commentary: The statement that martial law does or the suspension of the privilege of the writ or the not “supplant the functioning of …legislative assemblies” extension thereof, and must promulgate its means that ordinary legislation continues to belong to the decision thereon within thirty days from its filing. legislative bodies even during martial law. Does this mean that the martial law administrator is without power to legislate? VIII. Power of Executive Clemency A: In actual theater of war, the martial law administrator’s word is law, within the limits of the Bill of Rights. But Power of Executive Clemency outside the theater of war, the operative law is ordinary Purpose for the Grant of Power law. Forms of Executive Clemency Constitutional Limits on Executive Clemency 6. Grounds; Factual Bases for the Proclamation Pardon 1. In case of invasion or rebellion Amnesty 2. When the public safety requires it Administrative Penalties Other forms of Executive Clemency 7. Duration Section 19. Except in cases of impeachment, or as Not to exceed sixty days, following which it shall be otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, lifted, unless extended by Congress. and remit fines and forfeitures, after conviction by final judgment. 8. Four Ways to Lift the Proclamation He shall also have the power to grant amnesty with 1. Lifting by the President himself the concurrence of a majority of all the Members of 2. Revocation by Congress the Congress. 3. Nullification by the Supreme Court 4. By operation of law after 60 days A. Power of Executive Clemency 9. Duty of the President Non-delegable. The power of executive clemency is a non-delegable power and must be exercised by the Within forty-eight hours from the proclamation of President personally.350 martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a Clemency is not a function of the judiciary; it is an report in person or in writing to the Congress. executive function.351 The exercise of the pardoning power is discretionary in the President and may not be 10. Role of Congress controlled by the legislature or reversed by the courts, a. Congress convenes save only when it contravenes its limitations.352 b. Congress may either revoke or (with President’s initiative) extend B. Purpose for the Grant of Power of Executive Congress convenes. The Congress, if not in Clemency session, shall, within twenty-four hours following such proclamation or suspension, convene in Ratio: Human fallibility accordance with its rules without need of a call. Congress may revoke. The Congress, voting 350 jointly, by a vote of at least a majority of all its Bernas Commentary, p 893 (2003 ed). 351 Members in regular or special session, may revoke Bernas Commentary, p 892 (2003 ed). 352 Cruz, Philippine Political Law, p. 215 (1995 ed).I sweat, I bleed, I soar… 88Service, Sacrifice, Excellence
  • 89. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Purpose. That Section 19 gives to the President Classification of Pardon the power of executive clemency is a tacit Scope of Pardon admission that human institutions are imperfect Limitations on Exercise and that there are infirmities in the administration of When Completed justice. The power therefore exists as an Effect of Pardon instrument for correcting these infirmities and for Pardon v. Parole mitigating whatever harshness might be generated by a too strict application of the law.353 In 1. Pardon recent years, it has also been used as a bargaining a. What is Pardon? chip in efforts to unify various political forces. b. Pardon as an act of grace c. What does pardon imply?C. Forms of Executive Clemency (1988 Bar Question)1. Reprieves- a postponement of a sentence to a a. Act of grace which exempts the individual on date certain, or a stay in the execution. whom it is bestowed form the punishment which the law inflicts for the crime he has committed.2. Commutations- reduction or mitigation of the penalty. b. Because pardon is an act of grace, no legal3. Pardons- act of grace which exempts the power can compel the executive to give it. It is an individual on whom it is bestowed form the act of pure generosity of the executive and it is his punishment which the law inflicts for the crime he to give or to withdraw before it is completed.356 has committed. Congress has no authority to limit the effects of the4. Remission of fines President’s pardon, or to exclude from its scope5. Forfeitures any class of offenders. Courts may not inquire in to6. Amnesty- commonly denotes the ‘general pardon the wisdom or reasonableness of any pardon to rebels for their treason and other high political granted by the President.357 offenses’. c. Pardon implies guilt. A pardon looks to theD. Limits on Executive Clemency future. Constitutional Limits on Executive Clemency: 2. Classification of Pardon 1. It cannot be exercised in cases of impeachment 1. Plenary- Extinguishes all the penalties imposed upon the offender, including 2. Reprieves, commutations, and pardons, and accessory disabilities. remission of fines and forfeitures can be given only “after conviction by final judgment; 2. Partial-Does not extinguish all the penalties. 3. A grant of amnesty must be with the 3. Absolute- One extended without any strings concurrence of a “majority of all the Members attached. of Congress” 4. Conditional- One under which the convict is 4. No pardon, amnesty, parole, or suspension of required to comply with certain requirements. sentence for violation of election laws, rules, a. Pardonee may reject conditional and regulations shall be granted by the pardon. Where the pardon is conditional, President without the favorable the offender has the right to reject the recommendation of COMELEC.354 same since he may feel that the condition Other Limitations: imposed is more onerous than the penalty 1. A pardon cannot be extended to a person sought to be remitted358 convicted of legislative contempt or civil b. Condition, lawful. It is necessary that the contempt. condition should not be contrary to any 2. Pardon cannot also be extended for the provision of law.359 purpose of absolving the pardonee of civil liability, including judicial costs. c. Condition, co-extensive. The condition of the pardon shall be co-extensive with 3. Pardon will not restore offices forfeited.355 the penalty remitted. Hence, if the condition is violated after the expiration ofE. Pardon the remitted penalty, there can no longerDefinition of Pardon be violation of the conditional pardon.353 Bernas Primer at 320 (2006 ed.) Cruz, Philippine Political Law,p. 215 (1995 ed). 356 Bernas Commentary, p 894 (2003 ed). Bernas Primer at 320 (2006 ed.) 357 Sinco, Philippine Political Law, p 281 (1954ed).354 Bernas Commentary, p 893 (2003 ed). 358 Cruz, Philippine Political Law, p. 217 (1995 ed).355 359 Cruz, Philippine Political Law, p. 216 (1995 ed). Sinco, Philippine Political Law, p 281 (1954ed).I sweat, I bleed, I soar… 89Service, Sacrifice, Excellence
  • 90. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA d. When the condition is that the recipient of consequence of the conviction and the pardon should not violate any of the judgment.364 penal laws, who determines whether penal laws have been violated? Must the 5. When Act of Pardon Completed recipient of pardon undergo trial and be convicted for the new offenses? The rule Conditional: A pardon must be delivered to and that is followed is that the acceptance of accepted by the offender before it takes effect. the conditions of the pardon imports the acceptance of the condition that the Reason: The reason for requiring President will also determine whether the acceptance of a pardon is the need for condition has been violated. (Torres v. protecting the welfare of its recipient. Gonzales, 152 SCRA 272 (1987)) (1997, The condition may be less acceptable to 2005 Bar Question) him than the original punishment, and may in fact be more onerous.365 3. Scope of Pardon360 Absolute: Bernas submits that acceptance by the In granting the President the power of executive condemned is required only when the offer of clemency, the Constitution does not distinguish clemency is not without encumbrance.366 (1995 between criminal and administrative cases. Bar Question) (Llamas v. Orbos) Note: A pardon obtained by fraud upon the Pardon is only granted after conviction of final pardoning power, whether by misrepresentation or judgment. by suppression of the truth or by any other A convict who has already served his prison term imposition, is absolutely void.367 may still be extended a pardon for the purpose of relieving him of whatever accessory liabilities have 6. Effects of Pardon attached to his offense.361 a. Relieves criminal liability368 b. Does not absolve civil liabilities c. Does not restore public offices already forfeited, 4. Limitations on Exercise of Pardon although eligibility for the same may be restored. Constitutional Limitations a. As to punitive consequences and fines in 1. It cannot be exercised in cases of favor of government. Pardon relieves a party impeachment from all punitive consequences of his criminal act. 2. Reprieves, commutations, and pardons, Pardon will have the effect of remitting fines and and remission of fines and forfeitures can forfeitures which otherwise will inure to the be given only “after conviction by final interests of the government itself. judgment; 3. No pardon, amnesty, parole, or b. As to civil liabilities pertaining to private suspension of sentence for violation of litigants. Pardon will not relieve the pardonee of election laws, rules, and regulations shall the civil liability and such other claims, as may be granted by the President without the pertain to private litigants. favorable recommendation of COMELEC.362 c. As Regards Reinstatement: Other Limitations: i. One who is given pardon has no demandable 1. A pardon cannot be extended to a person right to reinstatement. He may however be convicted of legislative contempt or civil reappointed. (Monsanto v. Factoran, 1989) contempt. (Once reinstated, he may be given his former 2. Pardon cannot also be extended for the rank. See Sabello v. Dept. of Education, 1989, purpose of absolving the pardonee of civil Bernas Primer at 322) liability, including judicial costs. ii. However, if a pardon is given because he was acquitted on the ground that he did not commit 3. Pardon will not restore offices forfeited363 the crime, then reinstatement and backwages or property or interests vested in others in would be due. (Garcia v. COA, 1993) 364 Sinco, Philippine Political Law, p 283 (1954ed).360 Jacinto Jimenez, Political Law Compendium 323 (2006 ed.) 365 Bernas Commentary, p 894 (2003 ed).361 Cruz, Philippine Political Law, p. 218 (1995 ed). 366 Bernas Commentary, p 895 (2003 ed).362 Bernas Commentary, p 893 (2003 ed). 367 Sinco, Philippine Political Law, p 283 (1954ed).363 368 Cruz, Philippine Political Law, p. 216 (1995 ed). Sinco, Philippine Political Law, p 286 (1954ed).I sweat, I bleed, I soar… 90Service, Sacrifice, Excellence
  • 91. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 4. Effect of Application In order that a pardon may be utilized as a defense in subsequent judicial proceedings, it is necessary By applying for amnesty, the accused must be that it must be pleaded.369 deemed to have admitted the accusation against him. (People v. Salig, 133 SCRA 59) 7. Pardon v. Parole 5. Effects of the Grant of Amnesty Parole involves only a release of the convict from imprisonment but not a restoration of his liberty. Criminal liability is totally extinguished by amnesty; The parolee is still in the custody of the law the penalty and all its effects are thus extinguished. although no longer under confinement, unlike the (See Article 89 of RPC) pardonee whose sentence is condoned, subject only to reinstatement in case of violation of the It has also been held that when a detained convict condition that may have been attached to the claims to be covered by a general amnesty, his pardon.370 proper remedy is not habeas corpus petition. Instead, he should submit his case to the properF. Amnesty amnesty board.375DefinitionNature 6. Requisites (1993 Bar Question)Time of Application 1. Concurrence of a majority of all the members ofEffect of Application Congress (Section 19)Effects of Grant of Amnesty 2. There must be a previous admission of guilt.Requirements (Vera v. People)Pardon v. AmnestyTax Amnesty 7. Pardon v. Amnesty 1. Definition of Amnesty Pardon Amnesty Addressed to ODINARY Addressed to POLITICAL Grant of general pardon to a class of political offenses offenses offenders either after conviction or even before the Granted to INDIVIDUALS Granted to a CLASS of charges are filed. It is the form of executive persons clemency which under the Constitution may be Conditional pardon must Need not be Accepted granted by the executive only with the concurrence be accepted of the legislature.371 No need for congressional Requires congressional concurrence concurrence 2. Nature Private act of the A public act, subject to President judicial notice It is essentially an executive act and not a Pardon looks forward. Amnesty looks backward legislative act.372 (Though concurrence of Congress is needed) Only penalties are Extinguishes the offense extinguished. itself376 (According to Sinco citing Brown v. Walker, 161 US Civil indemnity is not 591, Congress is not prohibited from passing acts extinguished. of general amnesty to be extended to persons Only granted after Maybe granted before or before conviction.)373 conviction of final after conviction judgment 3. Time of Application374 (1995 Bar Question) 7. Tax Amnesty Amnesty may be granted before or after the a. Legal Nature institution of criminal prosecution and sometimes b. Needs Concurrence of Congress even after conviction. (People v. Casido, 268 SCRA 360) a. Legal Nature. Tax amnesty is a general pardon or intentional overlooking of its authority to impose369 penalties on persons otherwise guilty of evasion or Sinco, Philippine Political Law, p 283 (1954ed). violation of revenue or tax law, [and as such]370 Cruz, Philippine Political Law, p. 220 (1995 ed). partakes of an absolute forgiveness or waiver by371 Bernas Commentary, p 897 (2003 ed). the Government of its right to collect what372 Bernas Commentary, p 898 (2003 ed).373 Sinco, Philippine Political Law, p 285 (1954ed). 375 Bernas Commentary, p 901 (2003 ed).374 376 Jacinto Jimenez, Political Law Compendium 325 (2006 ed.) See Bernas Commentary, p 899 (2003 ed).I sweat, I bleed, I soar… 91Service, Sacrifice, Excellence
  • 92. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA otherwise would be due it. (Republic v. IAC, Power to contract or guarantee foreign loans 1991)377 Duty of the Monetary Board b. Needs Concurrence of Congress. Bernas Section 20. The President may contract or submits that the President cannot grant tax guarantee foreign loans on behalf of the Republic of amnesty without the concurrence of Congress.378 the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall,G. Other Forms of Executive Clemency within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete Grant of reprieves, commutations and remission of report of its decision on applications for loans to be fines and forfeitures are explicit in the Constitution. contracted or guaranteed by the Government or government-owned and controlled corporations 1. Reprieve which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. A reprieve is a postponement of a sentence to a date certain, or a stay in the execution. A. Power to contract or guarantee foreign loans 2. Commutation Requirements Reason for Concurrence Commutation is a remission of a part of the Why the Monetary Board punishment; a substitution of a less penalty for the Spouses Constantino v. Cuisia one originally imposed. Commutation does not have to be in any form. Thus, the fact that a convict 1. Requirements (1994 Bar Question) was released after six years and placed under The President may contract or guarantee foreign house arrest, which is not a penalty, already leads loans on behalf of the Republic of the Philippines: to the conclusion that the penalty have been 1. With the prior concurrence of the shortened. (Drilon v. CA) Monetary Board, and Commutation is a pardon in form but not in 2. Subject to such limitations as may be substance, because it does not affect his guilt; it provided by law merely reduces the penalty for reasons of public interest rather than for the sole benefit of the 2. Reason for Concurrence offender. In short, while a pardon reaches “both A President may be tempted to contract or punishment prescribed for the offense and guilt of guarantee loans to subsidize his program of the offender,” a commutation merely reduces the government and leave it to succeeding punishment.379 administration to pay. Also, it will enable foreign lending institutions to impose conditions on loans 3. Remission that might impair our economic and even political independence.383 Remission of fines and forfeitures merely prevents the collection of fines or the confiscation of forfeited 3. Why the Monetary Board. property; it cannot have the effect of returning Because the Monetary Board has expertise and property which has been vested in third parties or consistency to perform the mandate since such money already in the public treasury.380 expertise or consistency may be absent among the Members of Congress.384 The power of the Chief Executive to remit fines and forfeitures may not be limited by any act of 4. Spouses Constantino v. Cuisia (2005) Congress.381 But a statute may validly authorize Q: The financing program for foreign loans other officers, such as department heads or bureau instituted by the President extinguished portions of chiefs, to remit administrative fines and the country’s pre-existing loans through either debt forfeitures.382 buyback or bond-conversion. The buy-back approach essentially pre-terminated portions of IX. Borrowing Power public debts while the bond conversion scheme extinguished public debts through the obtention of a new loan by virtue of a sovereign bond issuance,377 Bernas Primer at 323 (2006 ed.) the proceeds of which in turn were used for378 Bernas Primer at 323 (2006 ed.) terminating the original loan. Petitioners contend379 Sinco, Philippine Political Law, p 284 (1954ed).380 Bernas Commentary, p 901 (2003 ed).381 383 Sinco, Philippine Political Law, p 285 (1954ed). Cruz, Philippine Political Law, p. 223 (1995 ed).382 384 Sinco, Philippine Political Law, p 284 (1954ed). Bernas Primer at 325 (2006 ed.)I sweat, I bleed, I soar… 92Service, Sacrifice, Excellence
  • 93. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA that buyback or bond conversion are not conduct of external affairs is executive authorized by Article VII, Section 20. altogether.388 He is the sole organ authorized “to speak or listen” for the nation in the broad field of A: The language of the Constitution is simple and external affairs.389 clear as it is broad. It allows the President to contract and guarantee foreign loans. It makes no B. Foreign Relations Powers of the President prohibition on the issuance of certain kinds of loans 1. The power to negotiate treaties and or distinctions as to which kinds of debt instruments international agreements; are more onerous than others. This Court may not 2. The power to appoint ambassadors and other ascribe to the Constitution the meanings and public ministers, and consuls; restrictions that would unduly burden the powers of 3. The power to receive ambassadors and other the President. The plain, clear and unambiguous public ministers accredited to the Philippines; language of the Constitution should be 4. The power to contract and guarantee foreign construed in a sense that will allow the full loans on behalf of the Republic; exercise of the power provided therein. It would be the worst kind of judicial legislation if the courts 5. The power to deport aliens.390 were to construe and change the meaning of the 6. The power to decide that a diplomatic officer organic act.385 who has become persona non grata be recalled.391 7. The power to recognize governments andB. Duty of the Monetary Board withdraw recognition392Duty of MBReason for Reporting C. Source of Power The extensive authority of the President in foreign 1. Duty relations in a government patterned after that of the The Monetary Board shall, within thirty days from US proceeds from two general sources: the end of every quarter of the calendar year, 1. The Constitution submit to the Congress a complete report of its 2. The status of sovereignty and decision on applications for loans to be contracted independence of a state. or guaranteed by the Government or government- In other words, the President derives his powers owned and controlled corporations which would over the foreign affairs of the country not only from have the effect of increasing the foreign debt, and specific provisions of the Constitution but also from containing other matters as may be provided by customs and positive rules followed by law. independent states in accordance with international law and practice.393 2. Reason for Reporting In order to allow Congress to act on whatever D. Concurrence of Senate legislation may be needed to protect public When Concurrence of Senate Needed interest.386 When Concurrence of Senate Not Needed Scope of Power to Concur Treaty X. Foreign Affairs Power/Diplomatic Power Section 21. No treaty or international agreementThe President and Foreign Affairs Power shall be valid and effective unless concurred in by atForeign Relations Powers of the President least two-thirds of all the Members of the Senate.Source of PowerConcurrence by the Senate 1. When Concurrence of Senate NeededTreaties v. Executive Agreements Concurrence of at leas 2/3 of all the members ofPower to Deport Senate is need for the validity and effectivity of:Judicial ReviewA. The President and Foreign Affairs Powers 388 As head of State, the President is supposed to the Cruz, Philippine Political Law, p. 323 (1995 ed). spokesman of the nation on external affairs.387 The 389 Sinco, Philippine Political Law, p 298 (1954ed). 390 Bernas Primer at 326 (2006 ed.) 391385 Spouses Constantino v. Cuisia, G.R. 106064, October 13, 2005; Bernas Commentary, p 910 (2003 ed).See Bernas Primer at 326 (2006 ed.) 392 Bernas Commentary, p 910 (2003 ed); Sinco, Philippine Political386 Bernas Primer at 325 (2006 ed.) Law, p 306 (1954ed).387 393 Cruz, Philippine Political Law, p. 323 (1995 ed). Sinco, Philippine Political Law, p 243 (1954ed).I sweat, I bleed, I soar… 93Service, Sacrifice, Excellence
  • 94. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 1. Treaties of whatever kind, whether 2. Treaty Approval397 bilateral or multilateral.394 2. International Agreements (that which are c. Effect of Treaties permanent and original) 1. Contract between states as parties 2. It is a law for the people of each state to 2. When Concurrence of Senate Not Needed observe (municipal law)398 (2003 Bar Question) Less formal types of international agreements; E. Treaties v. Executive Agreements Agreements which are temporary or are mere 1. International agreements which involve implementations of treaties or statutes do not need political issues or changes of national policy concurrence.395 and those involving international arrangements of a permanent character take the form or a 3. Scope of Power to Concur treaty; while international agreements involving adjustment of details carrying out The power to ratify is vested in the President well established national policies and traditions subject to the concurrence of Senate. The role of and involving arrangements of a more or less the Senate, however, is limited only to giving or temporary nature take the form of executive withholding its consent or concurrence, to the agreements ratification. Hence, it is within the authority of the 2. In treaties, formal documents require President to refuse to submit a treaty to the ratification, while executive agreements Senate. Although the refusal of a state to ratify a become binding through executive action. treaty which has been signed in his behalf is a (Commissioner of Customs v. Eastern Sea serious step that should not be taken lightly, such Trading 3 SCRA 351) decision is within the competence of the President alone, which cannot be encroached by the Court F. Power to Deport via a writ of mandamus. (Pimentel v. Executive Secretary, 2005) The power to deport aliens is lodged in the President. It is subject to the regulations prescribed The power of the Senate to give its concurrence in Section 69 of the Administrative Code or to such carries with it the right to introduce amendments to future legislation as may be promulgated. (In re a treaty. 396 If the President does not agree to any McClloch Dick, 38 Phil. 41) amendments or reservations added to a treaty by The adjudication of facts upon which the the Senate, his only recourse is to drop the treaty deportation is predicated also devolves on the entirely. But if he agrees to the changes, he may Chief Executive whose decisions is final and persuade the other nation to accept and adopt the executory. (Tan Tong v. Deportation Board, 96 Phil modifications. 934, 936 (1955)) 4. Treaty G. Judicial Review Definition Two General Steps Treaties and other international agreements Effects of Treaties concluded by the President are also subject to Termination of Treaties check by the Supreme Court, which has the power to declare them unconstitutional. (Art. VIII, Section a. Definition. Treaty is an international agreement 4) concluded between States in written form and governed by international law, whether embodied XI. Budgetary Power in a single instrument or in two or more related instruments and whatever designation. (1969 Budgetary Power Vienna Convention on the Law of Treaties) The Budget Government Budgetary Process b. Two General Steps Congress May Not Increase Appropriations 1. Negotiation- Here the President alone has authority Section 22. The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general394 Bernas Commentary, p 894 (2003 ed). appropriations bill, a budget of expenditures and sources of financing, including receipts from existing Note that a treaty which has become customary law may become and proposed revenue measures.part of Philippine law by incorporation through Article 2 Section.-asm395 397 Bernas Primer at 326 (2006 ed.) Sinco, Philippine Political Law, p 299 (1954ed).396 398 . Sinco, Philippine Political Law, p 299 (1954ed). Sinco, Philippine Political Law, p 300 (1954ed).I sweat, I bleed, I soar… 94Service, Sacrifice, Excellence
  • 95. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA B. State of the Nation AddressA. Budgetary Power The President usually discharges the informing This power is properly entrusted to the executive power through the state-of-the-nation address, department, as it is the President who, as chief which is delivered at the opening of the regular administrator and enforcer of laws, is in best session of the legislature.404 position to determine the needs of the government and propose the corresponding appropriations therefor on the basis of existing or expected sources of revenue.399B. The Budget The budget of receipts and expenditures prepared by the President is the basis for the general appropriation bill passed by the Congress.400 The phrase “sources of financing” has reference to sources other than taxation.401C. Government Budgetary Process The complete government budgetary process has been graphically described as consisting of four major phases: 1. Budget Preparation 2. Legislative Authorization 3. Budget Execution 4. Budget Accountability402D. Congress May Not Increase Appropriations The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. (Article VI Section 25(1)) XII. Informing PowersNot MandatoryState of the Nation Address Section 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.A. Not Mandatory Although couched in mandatory language, the first sentence of this provision does not as a rule impose a compellable duty on the President.403399 Cruz, Philippine Political Law, p. 224 (1995 ed).400 Bernas Primer at 329 (2006 ed.)401 Bernas Commentary, p 912 (2003 ed).402 Guingona v. Carague, 196 SCRA 221 (1991); BernasCommentary, p 912 (2003 ed).403 404 Cruz, Philippine Political Law, p. 225 (1995 ed). Cruz, Philippine Political Law, p. 226 (1995 ed).I sweat, I bleed, I soar… 95Service, Sacrifice, Excellence
  • 96. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA subject to confirmation by Commission on Appointments. (art. 8 §9) JUDICIAL DEPARTMENT 6. The Supreme Court now has administrative supervision over all lower courts and their personnel. (art. 8 §6)I. JUDICIAL DEPARTMENT 7. The Supreme Court has exclusive power toII. JUDICIAL POWER(Section 1) discipline judges of lower courts. (art 8 §11)III. JURISDICTION (Section 2) 8. The members of the Supreme Court and allIV. THE SUPREME COURT(Sections 4, 7-12) lower courts have security of tenure, whichV. POWERS OF THE SUPREME COURT cannot be undermined by a law reorganizing the judiciary. (art. 8 §11)(Sections 5,6, 11, 16) 9. They shall not be designated to any agencyVI. JUDICIAL REVIEW performing quasi-judicial or administrativeVII. DECIDING A CASE (Sections 4,13-15) functions. (art. 8 §12)VIII. OTHER COURTS 10. The salaries of judges may not be reduced during their continuance in office. (art. 8 §10) I. Judicial Department 11. The judiciary shall enjoy fiscal autonomy (artComposition 8§3)Common Provisions 12. Only the Supreme Court may order theIndependence of Judiciary temporary detail of judges (art 8 §5(3)) 13. The Supreme Court can appoint all officialsA. Composition and employees of the judiciary. (art. 8 §5(6))The Supreme Court and all lower courts make up the Section 3. The Judiciary shall enjoy fiscal autonomy.judicial department of our government.405 Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated forB. Common Provisions the previous year and, after approval, shall be automatically and regularly released.1. Independence of Judiciary (See Section 3)2. Congressional Oversight (Section 2) (1999 Bar Question)3. Separation of Powers (Section 12) Fiscal autonomy means freedom from outside4. General Rules (Section 14) control.As envisioned in the Constitution, fiscal autonomy enjoyed by the Judiciary…contemplates5. Period to Decide Case (Section 15) a guarantee of full flexibility to allocate and utilize their resources with the wisdom andC. Independence of Judiciary (2000 Bar Question) dispatch that their needs, require. To maintain the independence of the judiciary, the Fiscal autonomy recognizes the power and following safeguards have been embodied in the authority to (a) levy, assess and collect fees, (b) fix Constitution:406 rates of compensation not exceeding the highest 1. The Supreme Court is a constitutional body. It rates authorized by law for compensation, and (c) cannot be abolished nor may its membership pay plans of the government and allocate or or the manner of its meeting be changed by disburse such sums as may be provided by law or mere legislation. (art 8 §2) prescribed by them in the course of the discharge 2. The members of the Supreme Court may not of their functions. be removed except by impeachment. (art. 9 §2) The imposition of restrictions and constraints on 3. The SC may not be deprived of its minimum the manner the [Supreme Court] allocate and original and appellate jurisdiction as prescribed utilize the funds appropriated for their operations is in Article X, Section 5. (art. 8 §2) anathema to fiscal autonomy and violative of the 4. The appellate jurisdiction of the Supreme express mandate of the Constitution and of the Court may not be increased by law without its independence and separation of powers. (Bengzon advice or concurrence. (art. 6 §30) v. Drilon) 5. Appointees to the judiciary are now nominated by the Judicial and Bar Council and no longer Reason. Fiscal autonomy is granted to the Supreme Court to strengthen its autonomy.407 The provision is intended to remove courts from the mercy and caprice, not to say vindictiveness, of the405 Cruz, Philippine Political Law, p. 231 (1995 ed).406 407 Cruz, Philippine Political Law, p. 229 (1995 ed). Bernas Primer at 336 (2006 ed.)I sweat, I bleed, I soar… 96Service, Sacrifice, Excellence
  • 97. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA legislature when it considers the general the same- the temporary suspension of the appropriations bill.408 execution of the death convict.” (Echegaray v. Sec. of Justice, 1999) II. Judicial Power D. Limit on Judicial PowerWhere Vested (1) Courts may not assume to perform non-judicialDefinition functions.Scope (2) It is not the function of the judiciary to giveIntrinsic Limit on Judicial Power advisory opinionGrave Abuse of Discretion (3) Judicial power must sometimes yield toRole of Legislature in Judicial Process separation of powers, political questions and enrolled bill rule. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. 1. By the principle of separation of powers, courts Judicial power includes the duty of the courts of justice to may neither attempt to assume nor be settle actual controversies involving rights which are compelled to perform non-judicial functions.411 legally demandable and enforceable, and to determine Thus, a court may not be required to act as a board whether or not there has been a grave abuse of discretion of arbitrators (Manila Electric Co. v. Pasay amounting to lack or excess of jurisdiction on the part of Transportation (1932). Nor may it be charged with any branch or instrumentality of the Government. administrative functions except when reasonably incidental to the fulfillment of official duties.A. Judicial Power Where Vested (1989 Bar Question) (Noblejas v. Tehankee) Neither is it’s the function of the judiciary to give advisory opinions. Judicial power shall be vested in one Supreme Court and in such lower courts as may be 2. Advisory Opinions. established by law. (Section 1 par. 1) An advisory opinion is an opinion issued by a court that does not have the effect of resolving aB. Definition of Judicial Power (1994 Bar Question) specific legal case, but merely advises on the constitutionality or interpretation of a law. Traditional Concept: Judicial power includes the duty of the courts of justice to settle actual The nature of judicial power is also the foundation controversies involving rights which are legally of the principle that it is not the function of the demandable and enforceable. (Section 1, 2nd judiciary to give advisory opinion.412 If the courts sentence) will concern itself with the making of advisory opinions, there will be loss of judicial prestige. Broadened Concept: Duty to determine whether There may be less than full respect for court [or not] there has been a grave abuse of discretion decisions. amounting to lack or excess of jurisdiction on the party of any branch or instrumentality of the Declaratory Judgment v. Advisory Government. (Section 1, 2nd sentence) Opinions. Declaratory AdvisoryC. Scope of Judicial Power (1989 Bar Question) Judgment Opinions Involves real parties Response to a legal with real conflicting issue posed in the Judicial power is the measure of the allowable interests abstract in advance of scope of judicial action.409 The use of the word any actual case in “includes” in Section 1 connotes that the provision which it may be is not intended to be an exhaustive list of what presented judicial power is.410 Judgment is a final Binds no one one forever binding An accused who has been convicted by final on the parties. judgment still possesses collateral rights and these A judicial act Not a judicial act413 rights can be claimed in the appropriate courts [e.g. death convict who becomes insane after his final 3. The ‘broadened concept’ of judicial power is not conviction cannot be executed while in a state of meant to do away with the political questions insanity] The suspension of death sentence is an doctrine itself. The concept must sometimes yield exercise of judicial power. It is not usurpation of the to separation of powers, to the doctrine on presidential power of reprieve though the effect is408 Cruz, Philippine Political Law, p. 237 (1995 ed). 411 Bernas Commentary, p 916 (2003 ed).409 412 Bernas Commentary, p 914 (2003 ed). Bernas Commentary, p 921 (2003 ed).410 413 Bernas Commentary, p 919 (2003 ed). Bernas Commentary, p 924 (2003 ed).I sweat, I bleed, I soar… 97Service, Sacrifice, Excellence
  • 98. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA “political questions” or to the “enrolled bill” III. Jurisdiction rule.414 DefinitionE. Grave Abuse Clause Scope Role of Congress“To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the Section 2. The Congress shall have the power to define, part of any branch or instrumentality of the Government” prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. Not every abuse of discretion can be the occasion No law shall be passed reorganizing the Judiciary when it for the Court to come in by virtue of the second under-mines the security of tenure of its Members. sentence of Section 1. It must be “grave abuse of discretion amounting to lack or excess of A. Definition jurisdiction.”415 There is grave abuse of discretion: Jurisdiction is the power and authority of the court to hear, try and decide a case. (De La Cruz v. CA, (1) when an act done contrary to the Constitution, the law, or jurisprudence, or 2006) (2) it is executed whimsically, capriciously, B. Scope arbitrarily out of malice, ill will or personal bias. (Infotech v. COMELEC, 2004) It is not only the (1) power to determine, but the (2) power to enforce its determination. Again, the ‘broadened concept’ of judicial power is The (3) power to control the execution of its not meant to do away with the political questions decision is an essential aspect of jurisdiction doctrine itself. The concept must sometimes yield (Echegaray . Sec. of Justice, 301 SCRA 96) to separation of powers, to the doctrine on “political questions” or to the “enrolled bill” rule.416 (1995 Bar C. Role of Congress Question) Power. The Congress shall have the power to Rule 65 embodies the Grave Abuse Clause.417 define, prescribe, and apportion the jurisdiction of the various courts. (Section 2)F. Role of Legislature in Judicial Process Limitations: Although judicial power is vested in the judiciary, the proper exercise of such power requires prior 1. Congress may not deprive the Supreme legislative action: Court of its jurisdiction over cases 1. Defining such enforceable and enumerated in Section 5. ( art. 8 §2) demandable rights; and 2. No law shall be passed reorganizing the 2. Determining the court with jurisdiction to Judiciary when it under-mines the security hear and decide controversies or disputes of tenure of its Members. ( art. 8 §2) arising from legal rights.418 3. The appellate jurisdiction of the Supreme Court may not be increased by law except Courts cannot exercise judicial power when there is upon its advice and concurrence. (art. 6 § no applicable law. The Court has no authority to 30) entertain an action for judicial declaration of citizenship because there was no law authorizing * Jurisdiction in Section 2 refers to jurisdiction over such proceeding. (Channie Tan v. Republic, 107 cases [jurisdiction over the subject matter].420 Phil 632 (1960)) An award of honors to a student by a board of teachers may not be reversed by a IV. The Supreme Court court where the awards are governed by no Composition applicable law. (Santiago Jr. v. Bautista) Nor may Qualifications courts reverse the award of a board of judges in an Judicial and Bar Council oratorical contest. (Felipe v. Leuterio, 91 Phil 482 Appointment (1952)).419 Salaries Tenure414 See Bernas Commentary, p 919-920 (2003 ed). Removal415 Prohibition Bernas Commentary, p 920 (2003 ed).416 See Bernas Commentary, p 919-920 (2003 ed). 419417 Annotation to the Writ of Amparo. Bernas Primer at 335 (2006 ed.)418 420 Bernas Primer at 335 (2006 ed.) Cruz, Philippine Political Law, p. 2333 (1995 ed).I sweat, I bleed, I soar… 98Service, Sacrifice, Excellence
  • 99. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA It behooves every prospective appointee to theA. Composition Judiciary to apprise the appointing authority of every matter bearing on his fitness for judicial Section 4. (1) The Supreme Court shall be composed office, including such circumstances as may reflect of a Chief Justice and fourteen Associate Justices. It on his integrity and probity. Thus the fact that a may sit en banc or in its discretion, in division of three, prospective judge failed to disclose that he had five, or seven Members. Any vacancy shall be filled been administratively charged and dismissed from within ninety days from the occurrence thereof. the service for grave misconduct by a former President of the Philippines was used against him. Composition of the Supreme Court: Fifteen (15). It did not matter that he had resigned from office 1 Chief Justice and 14 Associate Justices. and that the administrative case against him had become moot and academic.424 By so fixing the number of members of the Similary, before one who is offered an appointment Supreme Court at [fifteen], it seems logical to infer to the Supreme Court can accept it, he must that no statute may validly increase or decrease correct the entry in his birth certificate that he is an it.421 alien.425 Collegiate Court. The primary purpose of a “A Member of the Judiciary must be a person of proven collegiate court is precisely to provide for the most competence, integrity, probity, and independence.” exhaustive deliberation before a conclusion is reached.422 Competence. In determining the competence of the applicant or recommendee for appointment, the JudicialB. Qualifications and Bar Council shall consider his educational preparation, experience, performance and other Section 7. (1) No person shall be appointed Member accomplishments of the applicant. (Rule 3 Section 1 of of the Supreme Court or any lower collegiate court JBC Rules) unless he is a natural-born citizen of the Philippines. A Integrity. The Judicial and Bar Council shall take every Member of the Supreme Court must be at least forty possible step to verify the applicant’s record of and years of age, and must have been for fifteen years or reputation for honesty, integrity, incorruptibility, more a judge of a lower court or engaged in the irreproachable conduct and fidelity to sound moral and practice of law in the Philippines. ethical standards. (Rule 4, Section 1 of JBC Rules) (2) The Congress shall prescribe the qualifications of judges of lower courts, but no person may be Probity and Independence. Any evidence relevant to appointed judge thereof unless he is a citizen of the the candidate’s probity and independence such as, but Philippines and a member of the Philippine Bar. not limited to, decision he has rendered if he is an (3) A Member of the Judiciary must be a person of incumbent member of the judiciary or reflective of the proven competence, integrity, probity, and soundness of his judgment, courage, rectitude, cold independence. neutrality and strength of character shall be considered. (Rule 5 Section of JBC Rules) Qualifications of a Member of the Supreme Court: C. Judicial and Bar Council (1988, 1999 Bar 1. Must be a natural born citizen of the Question) Philippines Composition 2. Must at least be 40 years of age; Function 3. Must have been for 15 years or more a judge Reason for Creation of a lower court or engaged in the practice of law in the Philippines; and Section 8. 4. A person of proven competence, integrity, (1) A Judicial and Bar Council is hereby created under probity, and independence. the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Congress may not alter the qualifications of Justice, and a representative of the Congress as ex Members of the Supreme Court and the officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme constitutional qualifications of other members of Court, and a representative of the private sector. the Judiciary. But Congress may alter the statutory (2) The regular members of the Council shall be qualifications of judges and justices of lower appointed by the President for a term of four years with courts.423 the consent of the Commission on Appointments. Of the Members first appointed, the representative of the 424 In re JBC v. Judge Quitain, JBC No. 013, August 22, 2007. 425421 Kilosbayan v. Ermita, G.R. No. 177721, July 3, 2007. This was Sinco, Philippine Political Law, p 318 (1954ed).422 the case of Justice Gregory Ong of the Sandiganbayanwho was being Cruz, Philippine Political Law, p. 268 (1995 ed). promoted to the Supreme court. Ong, however, remains in the423 Bernas Primer at 356 (2006 ed.) Sandiganbayan.I sweat, I bleed, I soar… 99Service, Sacrifice, Excellence
  • 100. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, For every vacancy, the Judicial and Bar Council and the representative of the private sector for one submits to the President a list of at least three year. names. The President may not appoint anybody (3) The Clerk of the Supreme Court shall be the who is not in the list. If the President is not satisfied Secretary ex officio of the Council and shall keep a record of its proceedings. with the list, he may ask for another list.429 (4) The regular Members of the Council shall receive such emoluments as may be determined by the Why at least 3? The reason for requiring at least Supreme Court. The Supreme Court shall provide in its three nominees for every vacancy is to give the annual budget the appropriations for the Council. President enough leeway in the exercise of his (5) The Council shall have the principal function of discretion when he makes his appointment. If the recommending appointees to the Judiciary. It may nominee were limited to only one, the appointment exercise such other functions and duties as the would in effect be made by the Judicial and Bar Supreme Court may assign to it. Council, with the President performing only the mathematical act of formalizing the commission.430 Composition of JBC: 1. SC Chief Justice (ex officio Chairman) Judges may not be appointed in an acting capacity Ex officio Members or temporary capacity.431 It should be noted that 2. Secretary of Justice what the Constitution authorizes the President to 3. Representative of Congress do is to appoint Justices and judges and not the Regular Members (Term of 4 years appointed authority merely to designate a non-member of by President with the consent of CA) the Supreme Court temporarily to sit as Justice of 4. Representative of IBP Supreme Court.432 5. Professor of Law 6. Retired Member of SC ASM: Do you know that when there is a vacancy in 7. Representative of private sector the Supreme Court, the remaining members of the Tribunal vote and make a recommendation to the The Clerk of the Supreme Court shall be the Judicial and Bar Council. Secretary ex officio of the JBC. E. Salaries Representative from Congress. Such representative may come from either House. Section 10. The salary of the Chief Justice and of the In practice, the two houses now work out a Associate Justices of the Supreme Court, and of way of sharing representation.426 A member judges of lower courts shall be fixed by law. During from each comes from both Houses but each their continuance in office, their salary shall not be have only half a vote.427 decreased. Function of JBC. JBC’s principal function is to The prohibition of the diminution of the salary of recommend to the President appointees to the Justices and judges during their continuance in Judiciary. It may exercise such other functions and office is intended as a protection for the duties as the Supreme Court may assign to it. independence of the judiciary.433 Rationale for Creation of JBC. The Council was The clear intent of the Constitutional Commission principally designed to eliminate politics from the was to subject the salary of the judges and justices appointment and judges and justices. Thus, to income tax. (Nitafan v. CIR, 1987) appointments to the Judiciary do not have to go through a political Commission on Appointments.428 F. TenureD. Appointment Section 11. The Members of the Supreme Court and judges of lower courts shall hold office during good Section 9. The Members of the Supreme Court and behavior until they reach the age of seventy years or judges of lower courts shall be appointed by the become incapacitated to discharge the duties of their President from a list of at least three nominees office. The Supreme Court en banc shall have the prepared by the Judicial and Bar Council for every power of discipline judges of lower courts, or order their vacancy. Such appointments need no confirmation. dismissal by a vote of a majority of the Members who For the lower courts, the President shall issue the appointments within ninety days from the submission of 429 the list. Bernas Commentary, p 985 (2003 ed). 430 Cruz, Philippine Political Law, p. 234 (1995 ed).426 Bernas Primer at 356 (2006 ed.) 431 Cruz, Philippine Political Law, p. 237 (1995 ed).427 432 Bernas Commentary, p 984 (2003 ed). Bernas Commentary, p 985 (2003 ed).428 433 Bernas Primer at 357 (2006 ed.) Bernas Commentary, p 986 (2003 ed).I sweat, I bleed, I soar… 100Service, Sacrifice, Excellence
  • 101. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA actually took part in the deliberations on the issues in General Power the case and voted thereon. Specific Powers Original Jurisdiction Security of Tenure is essential to an independent Appellate Jurisdiction judiciary. Temporary Assignment of Judges Change of Venue or Place of TrialG. Removal Rule-Making Power Appointment of Court Personnel By Impeachment. The Members of the Supreme Administrative Supervision of Courts Court are removable only by impeachment. They Disciplinary/Dismissal Powers can be said to have failed to satisfy the Contempt Powers requirement of “good behavior” only if they are Annual Report guilty of the offenses which are constitutional grounds of impeachment. Section 5. The Supreme Court shall have the following powers: 1. Exercise original jurisdiction over cases affecting The members of the Supreme Court may be ambassadors, other public ministers and consuls, and removed from office on impeachment for, and over petitions for certiorari, prohibition, mandamus, quo conviction of: warranto, and habeas corpus. 1. Culpable violation of the Constitution; 2. Review, revise, reverse, modify, or affirm on appeal 2. Treason; or certiorari as the law or the Rules of Court may 3. Bribery; provide, final judgments and orders of lower courts in: 4. Graft and Corruption; (a) All cases in which the constitutionality or 5. Other High Crimes validity of any treaty, international or executive agreement, law, presidential decree, proclamation, 6. Betrayal of Public Trust(Article XI, Section order, instruction, ordinance, or regulation is in 2) question. (b) All cases involving the legality of any tax, A Supreme Court Justice cannot be charged in a impost, assessment, or toll, or any penalty imposed in criminal case or a disbarment proceeding, because relation thereto. (c) All cases in which the jurisdiction of any the ultimate effect of either is to remove him from lower court is in issue. office, and thus circumvent the provision on (d) All criminal cases in which the penalty removal by impeachment thus violating his security imposed is reclusion perpetua or higher. of tenure (In Re: First Indorsement from Hon. Raul (e) All cases in which only an error or question Gonzalez, A.M. No. 88-4-5433) of law is involved. 3. Assign temporarily judges of lower courts to otherH. Prohibition stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. Section 12. The Members of the Supreme Court and 4. Order a change of venue or place of trial to avoid a of other courts established by law shall not be miscarriage of justice. designated to any agency performing quasi-judicial or 5. Promulgate rules concerning the protection and administrative functions. enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the The provision merely makes explicit an application practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a of the principles of separate of powers.434 simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of Take note of the other tasks given to SC or the the same grade, and shall not diminish, increase, Members of SC by the Constitution: modify substantive rights. Rules of procedure of special 1. SC en banc as Presidential Electoral courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Tribunal (art 7 §4) 6. Appoint all officials and employees of the Judiciary in 2. Chief Justice as presiding officer of the accordance with the Civil Service Law. impeachment Court when the President is in trial (art. 11 §3(6)). Section 6. The Supreme Court shall have 3. Chief Justice as ex officio chairman of the administrative supervision over all courts and the JBC. (art. 8 §8(1)). personnel thereof. 4. Justices as members of Electoral Tribunals (art. 6 §17). Section 11 xxxThe Supreme Court en banc shall have the power V. Powers of Supreme Court of discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in434 the case and voted thereon. Bernas Commentary, p 991 (2003 ed).I sweat, I bleed, I soar… 101Service, Sacrifice, Excellence
  • 102. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA discretion and, in fourth, the title of the respondent.A. General Power The petition for habeas corpus is a special proceeding.437 Judicial Power (§1) Concurrent Jurisdiction.B. Specific Powers The Supreme Court has concurrent original jurisdiction with Regional Trial Courts in cases Specific Powers of the Supreme Court under affecting ambassadors, other public ministers and Article VIII: consuls. (BP 129 § 21(2)) 1. Original Jurisdiction The Supreme Court has concurrent original 2. Appellate Jurisdiction jurisdiction with the Court of Appeals in petitions for 3. Temporary Assignment of Judges certiorari, prohibition and mandamus against the 4. Change of Venue or Place of Trial Regional Trial Courts. (BP 129 § 9(1)) 5. Rule-Making Power The Supreme Court has concurrent original jurisdiction with the Court of Appeals and the 6. Appointment of Court Personnel (§5) Regional Trial Courts in petitions for certiorari, 7. Administrative Supervision of Courts (§6) prohibition and mandamus against lower courts 8. Dismissal/ Removal Powers (§11) and bodies and in petitions for quo warranto and (Section 5(1) and (2) refer to the irreducible habeas corpus. (BP 129 §9(1), §21(2)) jurisdiction of the Supreme Court while Section 5 (3 -6) and Section 6 provide of auxiliary Principle of Judicial Hierarchy administrative powers.) Under a judicial policy recognizing hierarchy of courts, a higher court will not entertain direct resort Other Powers of SC: to it unless the redress cannot be obtained in the 1. Jurisdiction over proclamation of Martial law or appropriate courts. (Santiago v. Vasquez, 217 suspension of the writ of habeas corpus; (art. 7 SCRA 167) Thus, while it is true that the issuance §18) of a writ of prohibition under Rule 65 is within the 2. Jurisdiction over Presidential and Vice- jurisdiction of the Supreme Court, a petitioner Presidential election contests; (art. 7 §4) cannot seek relief from the Supreme Court where 3. Jurisdiction over decision, order, or ruling of the issuance of such writ is also within the the Constitutional Commissions. (art. 9 §7) competence of the Regional Trial Court or the 4. Supervision over JBC (art. 8 §8(1)) Court of Appeals. A direct recourse of the Supreme Court’s original 5. Power to Punish Contempt jurisdiction to issue writs should be allowed only when there are special and important reasonsC. Original Jurisdiction therefore, clearly and specifically set out in the petition. (Mangahas v. Paredes, 2007) Section 5(1). The Supreme Court has original jurisdiction over: Q: What cases may be filed originally in the 1. Cases affecting ambassadors, other Supreme Court? public ministers and consuls. A: Only petitions for certiorari, prohibition, 2. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, mandamus, quo warranto, and habeas disciplinary proceedings against members of the corpus.435 judiciary and attorneys, and affecting ambassadors, other public ministers and consuls Note that under international law, diplomats and may be filed originally in the Supreme Court. (Rule even consuls to a lesser extent, are not subject to 56, Section 1, Rules of Court) jurisdiction of the courts of the receiving State, save in certain cases, as when immunity is waived D. Appellate Jurisdiction either expressly or impliedly. In such instances, the Supreme Court can and probably should take Section 5(2). The Supreme Court has the power to cognizance of the litigation in view of possible review, revise, reverse, modify, or affirm on appeal international repercussions.436 or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts The petitions for certiorari, mandamus, prohibition, in: and quo warranto are special civil actions. The a. All cases in which the constitutionality or questions raised in the first three petitions are validity of any treaty, international or questions of jurisdiction or grave abuse of executive agreement, law, presidential decree, proclamation, order, instruction,435 See Rule 65, 66 and 102, Rules of Court. ordinance, or regulation is in question.436 437 Cruz, Philippine Political Law, p. 252 (1995 ed). Cruz, Philippine Political Law, p. 252 (1995 ed).I sweat, I bleed, I soar… 102Service, Sacrifice, Excellence
  • 103. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA b. All cases involving the legality of any tax, In Republic v. Sandiganbayan, 2002, it was held impost, assessment, or toll, or any penalty that the appellate jurisdiction of the Supreme Court imposed in relation thereto. over decisions and final orders of the c. All cases in which the jurisdiction of any Sandiganbayan is limited to questions of law. A lower court is in issue. question of law exists when the doubt or d. All criminal cases in which the penalty controversy concerns the correct application of law imposed is reclusion perpetua or higher. or jurisprudence to a certain set of facts; or when e. All cases in which only an error or the issue does not call for an examination of the question of law is involved. probative value of the evidence presented, the truth or falsehood of facts being admitted. Irreducible. This appellate jurisdiction of the Supreme Court is irreducible and may not be Section 5(2), (a) and (b) explicitly grants judicial withdrawn from it by Congress.438 review in the Supreme Court. (Judicial Review will be discussed in the next chapter) Final Judgments of lower courts. It should be noted that the appeals allowed in this section are E. Temporary Assignment of Judges from final judgments and decrees only of “lower courts” or judicial tribunals. Administrative Section 5(3). The Supreme Court has the power to decisions are not included.439 assign temporarily judges of lower courts to other stations as public interest may require. Such The lower courts have competence to decide temporary assignment shall not exceed six months constitutional questions. Section 5(2)(a) provides without the consent of the judge concerned. that Supreme Court has appellate jurisdiction over “final judgments and orders all cases in which the Rationale of the Provision. The present rule constitutionality or validity of any treaty, bolsters the independence of the judiciary in so far international or executive agreement, law, as it vests the power to temporarily assign judges presidential decree, proclamation, order, of inferior courts directly in the Supreme Court and instruction, ordinance or regulation is in question.” no longer in the executive authorities and conditions the validity of any such assignment in Review of Death Penalty. Section 5 requires a excess of six months upon the consent of the mandatory review by the Supreme Court of cases transferred judge. This will minimize if not where the penalty imposed is reclusion perpetua, altogether eliminate the pernicious practice of the life imprisonment, or death. However, the rigodon de jeuces, or the transfer of judges at will Constitution has not proscribed an intermediate to suit the motivations of the chief executive.442 review. To ensure utmost circumspection before the penalty of death, reclusion perpetua or life Purpose of Transfer. Temporary assignments may imprisonment is imposed, the Rule now is that be justified to arrange for judges with clogged such cases must be reviewed by the Court of dockets to be assisted by their less busy Appeals before they are elevated to the Supreme colleagues, or to provide for the replacement of the Court.440 regular judge who may not be expected to be Note, however, that the rule for the review of impartial in the decision of particular cases.443 decisions of lower courts imposing death or reclusion perpetua or life imprisonment are not the Permanent Transfer. Since transfer imports same. In case the sentence is death, there is removal from one office and since a judge enjoys automatic review by the Court of Appeals and security of tenure, it cannot be effected without the ultimately by the Supreme Court. This is consent of the judge concerned.444 mandatory and neither the accused nor the courts may waive the right of appeal. In the case of the F. Change of Venue or Place of Trial sentence of reclusion perpetua or life imprisonment, however, although the Supreme Section 5(4). The Supreme Court has the power to Court has jurisdiction to review them, the review is order a change of venue or place of trial to avoid a not mandatory. Therefore review in this later cases miscarriage of justice. may be waived and appeal may be withdrawn.441 This power is deemed to be an incidental and inherent power of the Court. (See People v. Gutierrez, 36 SCRA 172 (1970))438 Cruz, Philippine Political Law, p. 255 (1995 ed).439 Cruz, Philippine Political Law, p. 256 (1995 ed). 442440 Cruz, Philippine Political Law, p. 259 (1995 ed). People v. Mateo, G.R. No. 147678-87. July 7, 2004; People v. 443Lagua, G.R. No. 170565, January 31, 2006. Cruz, Philippine Political Law, p. 259 (1995 ed).441 444 People v. Rocha and Ramos, G.R. No. 173797, August 31, 2007. Bernas Commentary, p 967(2003 ed).I sweat, I bleed, I soar… 103Service, Sacrifice, Excellence
  • 104. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERAG. Rule Making Power 4. Test to Determine whether the rules diminish,Power to Promulgate Rules increase or modify substantive rightsLimits on the Rule Making Power 1. If the rule takes away a vested right, it is aNature and Function of Rule Making Power substantive matter.Test to Determin Whether Rules are Substantive 2. If the rule creates a right, it may be aRules Concerning Protection of Constitutional Rights substantive matter.Admission to the Practice of Law 3. If it operates as a means of implementing anIntegration of the Bar existing right, then the rule deals merely withCongress and the Rules of Court procedure. (Fabian v. Disierto) 1. Power to Promulgate Rules Illustrative cases where the rule merely deals The Supreme Court has the power to promulgate with procedure: rules concerning: 1. The protection and enforcement of Maniago v. CA, 1996 The rule that unless a reservation to file a constitutional rights; separate civil action is reserved, the civil case is 2. Pleading, practice, and procedure in all deemed filed with the criminal case is not about courts; substantive rights. Whether the two actions must 3. The admission to the practice of law, be tried in a single proceeding is a matter of 4. The Integrated Bar; procedure. 5. Legal assistance to the underprivileged. Fabian v. Desierto, 1998 (Section 5(5)) The transfer by the Supreme Court of pending cases involving a review of decision of the Office 2. Limits on SC’s Rule Making Power of the Ombudsman in administrative actions to 1. Such rules shall provide a simplified and the Court of Appeals is merely procedural. This is inexpensive procedure for the speedy because, it is not the right to appeal of an disposition of cases. aggrieved party which is affected by law. The 2. They shall be uniform for all courts of the right has been preserved. Only the procedure by same grade. which the appeal is to be made or decided has been changed. 3. They shall not diminish, increase, modify substantive rights. People v. Lacson, 400 SCRA 267 (This is quite confusing because of the dates) Rules of procedure of special courts and Facts: Respondent was charged with multiple quasi-judicial bodies shall remain effective murder. He filed a motion with the trial court for unless disapproved by the Supreme Court. judicial determination of probable cause. On March 29, 1999, the trial court dismissed the 3. Nature and Function of Rule Making Power cases provisionally. On December 1, 2000, the For a more independent judiciary. The authority Revised Rules on Criminal Procedure took to promulgate rules concerning pleading, practice effect. Section 8 of Rule 117 allowed the revival and admission to the practice of law is a traditional of the case which was provisionally dismissed power of the Supreme Court. The grant of this only within two years. On June 6, 2001, the authority, coupled with its authority to integrate the criminal cases against respondent were refilled. Bar, to have administrative supervision over all Respondent argued that the refilling of the cases courts, in effect places in the hands of Supreme was barred. The prosecution argued that under Court the totality of the administration of justice and Article 90 of the Revised Penal Code, it had thus makes for a more independent judiciary. twenty years to prosecute respondent. Held: Enhances the capacity to render justice. It also Is the rule merely procedural? Yes, the rule is enhances the Court’s capacity to render justice, merely procedural. Section 8, Rule 117 is not a especially since, as the Supreme Court has had statute of limitations. The two-year bar under the occasion to say, it includes the inherent authority to rule does not reduce the periods under Article 90 suspend rules when the requirement of justice of the Revised Penal Code. It is but a limitation demand. of the right of the State to revive a criminal case Moreover, since it is to the Supreme Court that rule against the accused after the case had been making authority has been given, rules filed but subsequently provisionally dismissed promulgated by special courts and quasi-judicial with the express consent of the accused. Upon bodies are effective unless disapproved by the the lapse of the period under the new rule, the Supreme Court. State is presumed to have abandoned or waived its right to revive the case. The prescriptionI sweat, I bleed, I soar… 104Service, Sacrifice, Excellence
  • 105. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA periods under the Revised Penal Code are not to the allowance. Since, the right to support diminished. granted by the Civil Code is substantive, it Is the refilling of cases barred in this case? cannot be impaired by Section 3, Rule 83 of the No. A procedural law may not be applied Rules of Court.447 retroactively if to do so would work injustice or would involve intricate problems of due process. Damasco v. Laqui, 166 SCRA 214 The time-bar of two years under the new rule Facts: Petitioner was charged with grave should not be applied retroactively against the threats. The trial court convicted him of light State. If the time-bar were to be applied threats. Petitioner moved for reconsideration retroactively so as to commence to run on March because the crime of which he was convicted 31, 1999, when the prosecutor received his copy had already prescribed when the information was of the resolution dismissing the cases, instead of filed. giving the State two years to revive the Held: While an accused who fails to move to provisionally dismissed cases, the State would quash is deemed to waive all objection which are have considerably less than two years to do so. grounds to quash, this rule cannot apply to The period before December 1, 2000 should be prescription. Prescription extinguishes criminal excluded in the computation of the two-year liability. To apply the said rule will contravene period, because the rule prescribing it was not Article 89 of the Revised Penal Code which is yet in effect at that time and the State could not substantive. The rules promulgated by the be expected to comply with it. 445 Supreme Court must not diminish, increase or modify substantive rights.448 Illustrative cases where the rule deals with substantive matter: Zaldivia v. Reyes, 211 SCRA 277 Facts: PNB v. Asuncion, 80 SCRA 321 On May 30, 1990, a complaint was filed with the Facts: Petitioner filed a collection case against provincial prosecutor against petitioner for several solidary debtors. One of them died violating an ordinance by quarrying without a during the pendency of the case. The court mayor’s permit. The information was filed in court dismissed the case against all the defendants on on October 2, 1990. Petitioner moved to quash the ground that the petitioner should file a claim on the ground that under Act 3326, violations of in the estate proceedings. Petitioner argued that municipal ordinances prescribe in two months the dismissal should be confined to the and the prescriptive period is suspended only defendant who died. upon the institution of judicial proceedings. The Held: Article 1216 of the Civil Code gives the prosecution argued that under Section 1, Rule creditor the right to proceed against anyone of 110 of the Rules on Criminal Procedure, the filing the solidary debtors or some or all of them of a case for preliminary investigation interrupts simultaneously. Hence, in case of the death of the prescriptive period. one of them, the creditor may proceed against Held: If there is a conflict between Act No. 3326 the surviving debtors. The Rules of Court cannot and Rule 110 of the Rules on Criminal be interpreted to mean that the creditor has no Procedure, the former must prevail. Prescription choice but to file a claim in the estate of the in criminal cases is a substantive right.449 deceased. Such construction will result in the diminution of the substantive rights granted by Illustrative case where retroactive application the Civil Code.446 of a ruling will affect substantive right: Santero v. CFI, 153 SCRA 728 LBP v. De Leon, 399 SCRA 376 Facts: During the pendency of the proceeding Facts: The Supreme Court ruled that in for the settlement of the estate of the deceased, accordance with Section 60 of the respondents, who were children of the deceased, Comprehensive Agrarian Reform Law, appeals filed a motion asking for an allowance for their from the Special Agrarian Courts should be support. Petitioners, who were children of the made by filing a petition for review instead of deceased with another woman, opposed on the merely filing a notice of appeal. Petitioner filed a grounds that petitioners were already of majority motion for reconsideration, in which it prayed that age and under Section 3 of Rule 83, the the ruling be applied prospectively. allowance could be granted only to minor Held: Before the case reached the Supreme children. Court, petitioner had no authoritative guideline Held: Article 188 of the Civil Code grants on how to appeal decision of Special Agrarian children the right to support even beyond the age of majority. Hence, the respondent were entitled 447 Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)445 448 Jacinto Jimenez, Political Law Compendium 344 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)446 449 Jacinto Jimenez, Political Law Compendium, 342 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 343 (2006 ed.)I sweat, I bleed, I soar… 105Service, Sacrifice, Excellence
  • 106. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Courts in the light of seemingly conflicting In Re: Request for Creation of Special Division, provisions of Section 60 and 61 of the A.M. No. 02-1-07-SC (2002): It was held that it is Comprehensive Agrarian Reform Law, because within the competence of the Supreme Court, in Section 61 provided that review shall be the exercise of its power to promulgate rules governed by the Rules of Court. The Court of governing the enforcement and protection of Appeals had rendered conflicting decisions on constitutional rights and rules governing pleading, this precise issue. Hence, the decision of the practice and procedure in all courts, to create a Supreme Court should be applied prospectively Special Division in the Sandiganbayan which will because it affects substantive right. If the ruling hear and decide the plunder case of Joseph is given retroactive application, it will prejudice Estrada. the right of appeal of petitioner because its pending appeals in the Court of Appeals will be Regulation of Demonstrations dismissed on a mere technicality thereby, Facts: Petitioner applied for a permit to hold a rally sacrificing their substantial merits.450 in from of the Justice Hall to protest the delay in the disposition of the cases of his clients. The mayor 5. Rules Concerning the protection and refused to issue the permit on the ground that it enforcement of constitutional rights; Rules was prohibited by the Resolution of the Supreme Concerning pleading, practice and procedure in Court dated July 7, 1998, which prohibited rallies courts within two hundred meters of any court building. Petitioners argued that the Resolution amended Power to Make Rules; Writ of Amparo. the Public Assembly Act in violation of the The Rules on the Writ of Amparo is promulgated by separation of powers. the Court based on its power to promulgate rules Held: The existence of the Public Assembly Act for the protection and enforcement of constitutional does not preclude the Supreme Court from rights. In light of the prevalence of extra legal killing promulgating rules regulating the conduct of and enforced disappearances, the Supreme Court demonstration in the vicinity of courts to assure the resolved to exercise for the first time its power to people of an impartial and orderly administration of promulgate rules to protect our people’s justice as mandate by the Constitution. (In re constitutional rights. Valmonte, 296 SCRA xi) Writ of Amparo (1991 Bar Question) Requirement of International Agreement a. Etymology. “Amparo” comes from Facts: The Philippines signed the Agreement Spanish verb “amparar” meaning “to protect. establishing the World Trade Organization. The Senate passed a resolution concurring in its b. Nature: A writ to protect right to life, liberty ratification by the President. and security of persons. Petitioners argued that Article 34 of the General Provisions and Basic Principles of the Agreement c. Section 1 of The Rule on the Writ of on Trade-Related Aspects of Intellectual Property Amparo: “The petition for a writ of amparo is a Rights is unconstitutional. Article 34 requires remedy available to any person whose right to members to create a disputable presumption in life, liberty and security is violated or civil proceedings that a product shown to be threatened with violation by unlawful act or identical to one produced with the use of a omission of a public official or employee, or of patented process shall be deemed to have been a private individual or entity. The writ shall obtained by illegal use of the patented process if cover extralegal killings and enforced the product obtained by the patented process is disappearances or threats thereof.” (Note that new or there is a substantial likelihood that the not all constitutional rights are covered by this identical product was made with the use of the Rule; only right to life, liberty and security) patented process but the owner of the patent could not determine the exact process used in obtaining Writ of Habeas Data. The writ of habeas data is a the identical product. Petitioners argued that this remedy available to any person whose right to impaired the rule-making power of the Supreme privacy in life, liberty or security is violated or Court. threatened by an unlawful act or omission of a Held: Article 34 should present no problem. public official or employee, or of a private individual Section 60 of the Patent Law provides a similar or entity engaged in the gathering, collecting or presumption in cases of infringement of a patented storing of data or information regarding the person, design or utility model. Article 34 does not contain family, home and correspondence of the aggrieved an unreasonable burden as it is consistent with due party. (Section 1, The Rule on the Habeas Data) process and the adversarial system. Since the Philippines is signatory to most international conventions on patents, trademarks and copyrights, the adjustment in the rules of450 Jacinto Jimenez, Political Law Compendium, 345 (2006 ed.)I sweat, I bleed, I soar… 106Service, Sacrifice, Excellence
  • 107. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA procedure will not be substantial. (Tanada v. 4. Cultivate among its members a spirit of Angara, 272 SCRA 18)451 cordiality and brotherhood; 5. Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice, Power to Suspend Its Own Rules. Section 5(5) of and procedure, and the relation of the Bar to the Constitution gives this Court the power to the Bench and to the public, and public relation "[p]romulgate rules concerning the protection and relating thereto; enforcement of constitutional rights, pleading, 6. Encourage and foster legal education; practice and procedure in all courts." This includes 7. Promote a continuing program of legal research an inherent power to suspend its own rules in in substantive and adjective law, and make particular cases in order to do justice.452 reports and recommendations thereon; and 8. Enable the Bar to discharge its public 6. Admission to the Practice of Law responsibility effectively (In re Integration of the Rule on Conduct of Officials. Section 90 of the Bar of the Philippines) Local Government Code which prohibits lawyers who are members of a local legislative body to d. In re: Atty. Marcial Edillon. In this case, Atty. practice law is not an infringement on the power of Edillon objects to the requirement of membership the Court to provide for rules for the practice of law. in the integrated bar as a pre-condition to the The law must be seen not as a rule on practice of practice of law. This gave the Court the opportunity law but as a rule on the conduct of officials to ventilate some basic notions underlying bar intended to prevent conflict of interest. (Javellana v. integration. DILG, 1992) 1. The practice of law is a privilege that is subject to reasonable regulation by the Bar Flunkers Act. After the Supreme Court has State; declared candidates for the bar as having flunked 2. Bar integration is mandated by the the examinations, Congress may not pass a law Constitution; lowering the passing mark and declaring the same 3. The lawyer is not being compelled to join candidates as having passed. This would amount the association. Passing the bar to not just amending the rules but reversing the examination already made him a member Court’s application of an existing rule. (In re of the bar. The only compulsion to which Cunanan , 94 phil 534 (1954)) he is subjected is the payment of annual dues, and this is justified by the need for Nullification of Bar Results. In 2003, the Court elevating the quality of legal profession; nullified the results of the exams on Commercial 4. The Constitution vests in the SC plenary Law when it was discovered that the Bar questions powers regarding admission to the bar. had been leaked. (Bar matter No. 1222, 2004) e. Letter of Atty Arevalo, 2005. Payment of dues 7. Integration of the Bar is a necessary consequence of membership in the a. Bar - refers to the collectivity of all persons Integrated Bar of the Philippines, of which no one is whose names appear in the Roll of Attorneys. exempt. This means that the compulsory nature of payment of dues subsists as long as one’s b. Integration of the Philippine Bar - means the membership in the IBP remains regardless of the official unification of the entire lawyer population of lack of practice of, or the type of practice, the the Philippines. This requires membership and member is engaged in.453 financial support (in reasonable amount) of every attorney as conditions sine qua non to the practice 8. Congress and the Rules of Court of law and the retention of his name in the Roll of Bernas Primer: Rules issued by the Supreme Attorneys of the Supreme Court. (In re Integration Court may be repealed, altered, or supplemented of the Bar of the Philippines) by Congress because Congress has plenary legislative power. The silence of the Constitution on c. Purpose of an integrated Bar, in general are: the subject can only be interpreted as meaning that 1. Assist in the administration of justice; there is no intention to diminish that plenary power. 2. Foster and maintain, on the part of its In fact, RA 8974 which requires full payment before members, high ideals of integrity, learning, the sate may exercise proprietary rights, contrary to professional competence, public service and Rule 67 which requires a deposit, was recognized conduct; 3. Safeguard the professional interests of its by Court in Republic v. Gingoyon, 2005. (An earlier members; obiter dictum in Echegaray v. Sec. of Justice, 1999, said that Congress has no power to amend Rules.451 Jacinto Jimenez, Political Law Compendium, 347 (2006 ed.)452 Lim et al v CA, G.R. No. 149748, November 16, 453 Letter of Atty. Cecilio Y. Arevalo, Requesting Exemptions from2006. Payment of IBP Dues, May 9, 2005.I sweat, I bleed, I soar… 107Service, Sacrifice, Excellence
  • 108. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA This was repeated by Puno and Carpio in dissent Exclusive Supervision. Article VIII, Section 6 in Republic v. Gingoyon)454 exclusively vests in the Supreme Court administrative supervision over all courts and court Nachura (2006): Congress cannot amend the personnel, from the Presiding Justice of the Court Rules of Court. “The 1987 Constitution took away of Appeals down to the lowest municipal trial court the power of Congress to repeal, alter or clerk. By virtue of this power, it is only the Supreme supplement rules concerning pleading and Court that can oversee the judges’ and court procedure. In fine, the power to promulgate rules of personnel’s compliance with all laws, and take pleading, practice and procedure is no longer proper administrative action against them if they shared by this Court with Congress, more so with commit any violation thereof. No other branch of the Executive.” Echagaray v. Secretary of Justice government may intrude into this power, without (1999) running afoul to the doctrine of separation of powers. (Maceda v. Vasquez) ASM: Follow Bernas’ view. Article XVIII, Section 10 provides: “The provisions of the existing Rules of Ombudsman and SC’s Power of Supervision. Court, judiciary acts, and procedural laws not The Ombudsman may not initiate or investigate a inconsistent with this Constitution shall remain criminal or administrative complaint before his operative unless amended or repealed by the office against a judge; the Ombudsman must first Supreme Court or the Congress” indorse the case to the Supreme Court for appropriate action. (Fuentes v. Office ofH. Appointment of Court Personnel Ombudsman, 2001) The authority of the Supreme Court to appoint its Administrative Proceeding, Confidential. own official and employees is another measure Administrative proceedings before the Supreme intended to safeguard the independence of the Court are confidential in nature in order to protect Judiciary. However, the Court’s appointing authority the respondent therein who may turn out to be must be exercised “in accordance with the Civil innocent of the charges. (Godinez v. Alano, 1999) Service Law.”455 According to Bernas, the power of administrative Note that Section 5(6) empowers the Supreme supervision of the Supreme Court, includes the Court not only to appoint its own officials and power [sitting en banc] to discipline judges of lower employees but of the Judiciary itself. courts, or order their dismissal.458 It should also be recalled that courts may be given J. Disciplinary Powers authority by Congress “to appoint officers lower in rank.” (art. 7 §16) Section 11 The Members of the Supreme Court and judges ofI. Administrative Supervision of Courts lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Strengthens Independence. Section 6 provides Supreme Court en banc shall have the power of that the Supreme Court shall have administrative discipline judges of lower courts, or order their supervision by the Supreme Court over all lower dismissal by a vote of a majority of the Members who courts and the personnel thereof. It is a significant actually took part in the deliberations on the issues in innovation towards strengthening the the case and voted thereon. independence of the judiciary. Before 1973 Constitution, there was no constitutional provision 1. Power to Discipline on the subject and administrative supervision over The power of the Supreme Court to discipline the lower courts and their personnel was exercised judges of inferior courts or to order their dismissal by the Secretary of Justice.456 The previous set-up is exclusive. It may not be vested in any other impaired the independence of judges who tended body. Nor may Congress pass a law that judges of to defer to the pressures and suggestions of the lower courts are removable by impeachment.459 executive department in exchange for favorable action on their requests and administrative 2. Disciplinary Actions problems.457 Besides removal, such other disciplinary measures as suspension, fine and reprimand can be meted454 out by the Supreme Court on erring judges.460 Bernas Primer at 352 (2006 ed.)455 Bernas Commentary, p 979 (2003 ed). 458 Bernas Commentary, p 979 (2003 ed).456 Bernas Commentary, p 979 (2003 ed). 459 Bernas Commentary, p 988 (2003 ed).457 460 Cruz, Philippine Political Law, p. 264 (1995 ed). Cruz, Philippine Political Law, p. 267 (1995 ed).I sweat, I bleed, I soar… 108Service, Sacrifice, Excellence
  • 109. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA The purpose of this provision is not to subject the 3. Requirement for Disciplinary Actions Court to the President and to the Congress but Disciplinary Action Decision simply to enable the judiciary to inform government Dismissal of judges, Decision en banc (by about its needs. (I RECORD 510-512)465 Disbarment of a a vote of a majority of lawyer, suspension the members who The annual report required under this provision can of either for more actually took part in be the basis of appropriate legislation and than 1 year or a fine the deliberations on government policies intended to improve the exceeding 10,000 the issues in the case administration of justice and strengthen the pesos (People v. and voted thereon) independence of judiciary.466 Gacott)] VI. Judicial Review Other disciplinary Decision of a division Definition of Judicial Review actions is sufficient (People v. Constitutional Supremacy Gacott) Functions of Judicial Review Who May Exercise 4. SC Determines what “good behavior” is. Requisites of Judicial Review Judges of lower courts shall hold office during good Political Questions behavior until they reach the age of seventy years or Effect of Declaration of Unconstitutionality become incapacitated to discharge the duties of their office. Partial Unconstitutionality It is submitted that the Supreme Court alone can Judicial Review by Lower Courts determine what good behavior is, since the SC Modalities of Constitutional Interpretation alone can order their dismissal.461 A. Definition 5. SC Determines whether a judge has become incapacitated Judicial review is the power of the courts to test the The power to determine incapacity is part of the validity of governmental acts in light of their overall administrative power which the Supreme conformity to a higher norm (e.g. the constitution.) Court has over its members and over all the –asm members of the judiciary.462 The power of judicial review is the Supreme Court’sK. Contempt Powers power to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or One of the essential powers of every court under regulation unconstitutional. This power is explicitly our system of government is that of punishing for granted by Section 5(2), (a) and (b).467 Judicial contempt persons who are guilty of disobedience Review is an aspect of Judicial Power.468 to its orders or for disrespect to its authority. The punishment is either imprisonment or fine.463 Theory of Judicial Review. The Constitution is the supreme law. It was ordained by the people, the “While it is sparingly to be used, yet the power of ultimate source of all political authority. It confers courts to punish for contempts is a necessary and limited powers on the national government. x x x If integral part of the independence of judiciary, and the government consciously or unconsciously is absolutely essential to the performance of the oversteps these limitations there must be some duties imposed on them by law. Without it they are authority competent to hold it in control, to thwart mere boards of arbitration, whose judgments and its unconstitutional attempt, and thus to vindicate decrees would only be advisory.”464 and preserve inviolate the will of the people as expressed in the Constitution. This power theL. Annual Report courts exercise. This is the beginning and the end Section 16. The Supreme Court shall, within thirty of the theory of judicial review.469 days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the 465 Judiciary Bernas Commentary, p 1000 (2003 ed). 466 Cruz, Philippine Political Law, p. 277 (1995 ed). 467 Bernas Primer at 341 (2006 ed.) 468461 Bernas Commentary, p 937(2003 ed). Bernas Commentary, p 987(2003 ed). 469462 Bernas Commentary, p 988(2003 ed). Howard L. MacBain, "Some Aspects of Judicial Review," Bacon463 Lectures on the Constitution of the United States (Boston: Boston Sinco, Philippine Political Law, p 372 (1954ed). University Heffernan Press, 1939), pp. 376-77 cited in David v.464 Gompers v. Buck’s Stove and Range co., 221 US 418. Arroyo.I sweat, I bleed, I soar… 109Service, Sacrifice, Excellence
  • 110. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA Judicial Review in Philippine Constitution. E. Requisites of Judicial Inquiry/Judicial Review Unlike the US Constitution470 which does not (1994 Bar Question) provide for the exercise of judicial review by their Essential Requisites Supreme Court, the Philippine Constitution 1. There must be an actual case or controversy; expressly recognizes judicial review in Section The question involved must be ripe for 5(2) (a) and (b) of Article VIII of the Constitution. adjudication. 2. The question of constitutionality must beB. Principle of Constitutional Supremacy raised by the proper party; Auxiliary Rules Judicial review is not an assertion of superiority by 3. The constitutional question must be raised at the courts over the other departments, but merely the earliest possible opportunity; an expression of the supremacy of the 4. The decision of the constitutional question Constitution.471 Constitutional supremacy produced must be necessary to the determination of the judicial review, which in turn led to the accepted case itself. role of the Court as “the ultimate interpreter of the (Read the case of Francisco v. HR and David v. Constitution.”472 Arroyo in the original)C. Functions of Judicial Review 1. Actual Case 1. Checking- invalidating a law or executive act that is found to be contrary to the Constitution. Actual Case or controversy involves a conflict 2. Legitimating- upholding the validity of the law. of legal rights, an assertion of opposite legal Rule on the Double Negative- Uses the claims susceptible of judicial determination.474 term “not unconstitutional”; the court cannot declare a law constitutional The case must not be: because it already enjoys a presumption of 1. Moot or academic or constitutionality 2. Based on extra-legal or other similar 3. Symbolic473- to educate the bench and the bar consideration not cognizable by as the controlling principles and concepts on courts of justice.475 matters of great public importance. 3. A request for advisory opinion.476 In a Separate Opinion in Francisco v. HR, Mr. 4. Hypothetical or feigned constitutional Justice Adolf Azcuna remarked: problems “The function of the Court is a necessary element 5. Friendly suits collusively arranged not only of the system of checks and balances, but between parties without real adverse also of a workable and living Constitution. For interests477 absent an agency, or organ that can rule, with finality, as to what the terms of the Constitution mean, there will be uncertainty if not chaos in Moot Case. A moot case is one that ceases to governance... This is what… Hart calls the need present a justiciable controversy by virtue of for a Rule of Recognition in any legal system…” supervening events, so that a declaration thereon would be of no practical use or value.D. Who May Exercise Generally, courts decline jurisdiction over such 1. Supreme Court case or dismiss it on ground of mootness. 2. Inferior Courts However, Courts will decide cases, otherwise moot and academic, if:470 The case of Marbury v. Madison established the doctrine of 1. There is a grave violation of thejudicial review as a core legal principle in American constitutional Constitution;system: “So if a law be in opposition to the constitution; of both the 2. The exceptional character of the situationlaw and the constitution apply to a particular case, so that the court and the paramount public interest ismust either decide that case conformably to the law, disregarding the involvedconstitution; or conformably to the constitution, disregarding the law;the court must determine which of these conflicting rules governs the 3. When the constitutional issue raisedcase. This is the very essence of judicial duty.” requires formulation of controlling471 Angara v. Electoral Commission, 63 Phil 139.472 See Cooper v. Aaron, 358 US 1 (1956) 474 Cruz, Philippine Political Law, p. 241 (1995 ed).473 “The Court also has the duty to formulate guiding and 475 Cruz, Philippine Political Law, p. 241 (1995 ed); See Cawaling v.controlling constitutional principles, precepts, doctrines, or COMELEC, 368 SCRA 453)rules. It has the symbolic function of educating bench and bar 476 Cruz, Philippine Political Law, p. 242 (1995 ed).on the extent of protection given by constitutional guarantees.” 477(Salonga v. Pano, 134 SCRA 438, 1985) Bernas Commentary, p 938(2003 ed).I sweat, I bleed, I soar… 110Service, Sacrifice, Excellence
  • 111. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA principles to guide the bench, the bar, and 1. Cases of transcendental importance the public; and or of paramount public interest or 4. The case is capable of repetition yet involving an issue of overarching evading review. (Province of Batangas vs. significance. Romulo, 429 SCRA 736; David v. Arroyo 2. Cases of Proclamation of martial law (2006) Quizon v. Comelec, G.R. No. and suspension of the privilege of the 177927, February 15, 2008.) writ of habeas corpus where any citizen may challenge the The requirement of actual controversy proclamation of suspension. (art.7 encompasses concepts such as ripeness, §18) standing, and the prohibition against advisory 3. The right to information on matters of judicial rulings (BP Chemicals v. UCC, 4 F.3d public concern and the right to access 975) to public documents has been recognized as accruing to mere Ripeness Doctrine. The requirement that a citizenship. (Legaspi v. CSC, 150 case be ripe for judgment before a court will SCRA 530 (1987) decide the controversy. Ripeness refers to 4. Facial Challenge (?) readiness for adjudication, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Rationale. To prevent the courts, through premature adjudication, from entangling REQUISITES of standing: themselves in abstract disagreements. A citizen can raise a constitutional question only when: When Not Ripe. A claim is not ripe for adjudication if it rests upon contingent future 1. Injury: He can show that he has events that may not occur as anticipated, or personally suffered some actual or indeed may not occur at all.478 threatened injury because of the allegedly illegal conduct of the Ripeness and Standing. government; A simple description of the requirements of 2. Causation: The injury is fairly standing and ripeness is found in the words of traceable to the challenged action; Justice Stone in Nashville v. Wallace. In that and opinion he referred to: “valuable legal rights… 3. Redressability: A favorable action threatened with imminent invasion.” The will likely redress the injury. valuable legal rights constitute the standing (Francisco v. Fernando GR 166501, and the threat of imminent invasion 2006) constitute the ripeness.479 In a public suit, where the plaintiff asserts a 2. Standing/Proper Party (1992, 1995 Bar public right in assailing an allegedly illegal Question) official action, our Court adopted the “direct Proper Party- A proper party is one who has injury test” in our jurisdiction. (David v. Arroyo) sustained or is in immediate danger of sustaining an injury in result of the act Direct Injury Test: The persons who impugn complained of.480 the validity of a statute must have a ”personal and substantial interest in the case such Locus Standi refers to the right of that he has sustained or will sustain, direct appearance in a court of justice on a given injury as a result. (David v. Arroyo) (See question. People v. Vera, 65 Phil 58, 89 (1937)). General Rule: By way of summary, the following rules may be Direct Interest Test: The persons who culled from the cases decided by the Supreme impugn the validity of a statute must have a Court. Taxpayers, voters, concerned citizens, ”personal and substantial interest in the case and legislators may be accorded standing to such that he has sustained or will sustain, sue, provided that the following requirements direct injury as a result. are met: Exceptions: 1. the cases involve constitutional issues478 2. for taxpayers, there must be a claim of Texas v. United States, 523 U.S. 296, 300 (1998). illegal disbursement of public funds or that479 Jerre S. Williams, Constitutional Analysis 16, (1979). the tax measure is unconstitutional;480 Ex Parte Levitt, 303 US 633; People v. Vera 65 Phil 58, 89(1937).I sweat, I bleed, I soar… 111Service, Sacrifice, Excellence
  • 112. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA 3. for voters, there must be a showing of that deforestation has resulted in damage to the environment. The Secretary of argued that obvious interest in the validity of the petitioners has no cause of action. election law in question; Held: SC said that Petitioners have a right to a 4. for concerned citizens, there must be a sound environment, this is incorporated in Section showing that the issues raised are of 16 of Article II. SC also said that Petitioners have personality to sue transcendental importance which must be based on the concept of intergenerational settled early; responsibility insofar as the right to a balanced and 5. for legislators, there must be a claim that healthful ecology is concerned. “We find no difficulty the official action complained of infringes in ruling that they can, for themselves, for others of upon their prerogatives as legislators their generation and for the succeeding generation. Their personality to sue in behalf of the succeeding [David v. Arroyo G.R. No. 171396 (2006)] generations can only be based on the concept of intergenerational responsibility insofar as the right to Illustrative Cases showing existence of a balanced ecology is concerned.” (Oposa v. standing: Factoran, 1993) Facts: Petitioners filed a case as taxpayers Illustrative Cases showing absence of questioning the validity of the contract between standing: DOTC and respondent by virtue of which respondent agreed to build and lease to the DOTC a light Facts: Upon authorization of the President, the railway transit system. Respondent claimed that PCGG ordered the sale at public auction of paintings petitioners had no standing to file the action. by old masters and silverware alleged to be illgotten Held: Taxpayers may file action questioning wealth of former President Marcos, his relatives, and contracts entered into by government on the ground friends. Petitioners, who were Filipino citizens, that the contract is in contravention of the law. (Tatad taxpayers, and artist, filed a petition to restrain the v. Garcia, 243 SCRA 436)481 auction. Held: Petitioners have no standing to restrain the Facts: Petitioners who were Filipino citizens and public auction. The paintings were donated by taxpayers, questioned the constitutionality of the private persons to the MMA who owns them. The IPRA on the ground that it deprived the State of pieces of silverware were given to the Marcos ownership over lands of the public domain and the couple as gifts on their silver wedding anniversary. natural resources in them in violation of Section 2, Since the petitioners are not the owners of the Article XII of the Constitution. paintings and the silverware, they do not possess Held: As, citizens, petitioners possess the public any right to question their dispositions. (Joya v. right to ensure that the national patrimony is not PCGG, 225 SCRA 586)484 alienated and diminished in violation of the Constitution. Since the government holds it for the Facts: Petitioner filed a petition in his capacity as a benefit of the Filipinos, a citizen had sufficient taxpayer questioning the constitutionality of the interest to maintain a suit to ensure that any grant of creation of 70 positions for presidential advisers on concession covering the national patrimony strictly the ground that the President did not have the power complies with the constitutional requirements. to create these positions. In addition, the IPRA appropriate funds. Thus, it is a Held: Petitioner has not proven that he has valid subject of a taxpayer’s suit. (Cruz v. Secretary sustained any injury as a result of the appointment of Environment and Natural Resources, 347 SCRA of the presidential advisers. (Gonzales v. Narvasa, 128)482 337 SCRA 437)485 Facts: Petitioner, a senator, questioned the Facts: In view of the increase in violent crimes in constitutionality of Administrative Order No. 308 Metropolitan Manila, the President ordered the PNP which provided for the establishment of a national and the Philippine Marines to conduct joint visibility computerized identification reference system. patrols for the purpose of crime prevention and Petitioner contends that the AO usurps legislative suppression. Invoking its responsibility to uphold the power. The government questioned his standing to rule of law, the Integrated Bar of the Philippines file the case. questioned the validity of the order. Held: As a senator, petitioner is possessed of the Held: the mere invocation of the IBP of the requisite standing to bring suit raisin the issue that Philippines of its duty to preserve the rule of law is the issuance of AO 308 is a usurpation of legislative not sufficient to clothe it with standing in this case. power. (Ople v. Torres, 293 SCRA 141)483 This is too general an interest which is shared by the whole citizenry. The IBP has not shown any specific Facts: Petitioners, who are minors, filed a case to injury it has suffered or may suffer by virtue of the compel the Secretary of Environment and Natural questioned order. The IBP projects as injurious the Resources to cancel the timber license agreements militarization of law enforcement which might and to desist from issuing new ones on the ground threaten democratic institutions. The presumed481 Jacinto Jimenez, Political Law Compendium, 333 (2006 ed.)482 484 Jacinto Jimenez, Political Law Compendium, 334 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 337 (2006 ed.)483 485 Jacinto Jimenez, Political Law Compendium, 336 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 338 (2006 ed.)I sweat, I bleed, I soar… 112Service, Sacrifice, Excellence
  • 113. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA injury is highly speculative. (IBP v. Zamora, 338 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx SCRA 81)486 Bernas: In sum, it may be said that the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx concept of locus standi as it exists in Philippine jurisprudence now has departed from the Transcendental Importance Being a mere rigorous American concept.489 procedural technicality, the requirement of locus standi may be waived by the Court in the 3. Earliest Opportunity exercise of its discretion. Thus, the Court has adopted a rule that even where the petitioners General Rule: Constitutional question must be have failed to show direct injury, they have raised at the earliest possible opportunity, such been allowed to sue under the principle of that if it is not raised in the pleadings, it cannot "transcendental importance." [David v. be considered at the trial, and, if not Arroyo G.R. No. 171396 (2006)] considered in trial, cannot be considered on appeal. When an Issue Considered of Transcendental Importance: Exceptions: An issue is of transcendental importance 1. In criminal cases, the constitutional because of the following: question can be raised at any time in (1) the character of the funds or other assets the discretion of the court. involved in the case; 2. In civil cases, the constitutional (2) the presence of a clear disregard of a question can be raised at any stage if constitutional or statutory prohibition by an it is necessary to the determination of instrumentality of the government; and the case itself. (3) the lack of any other party with a more 3. In every case, except where there is direct and specific interest in raising the estoppel, the constitutional question question. (Francisco vs. House of may be raised at any stage if it Representatives, 415 SCRA 44; Senate v. involves jurisdiction of the court.490 Ermita G.R. No. 169777 (2006)) 4. Necessity/ Lis Mota Facial Challenge487. The established rule is that a party can Rule: The Court will not touch the issue of question the validity of a statute only if, as unconstitutionality unless it really is applied to him, it is unconstitutional. The unavoidable or is the very lis mota.491 exception is the so-called “facial challenge.” But the only time a facial challenge to a statute Reason: The reason why courts will as much is allowed is when it operates in the area of as possible avoid the decision of a freedom of expression. In such instance, the constitutional question can be traced to the “overbreadth doctrine” permits a party to doctrine of separation of powers which enjoins challenge to a statute even though, as applied upon each department a proper respect for the to him, it is not unconstitutional, but it might be acts of the other departments. The theory is if applied to others not before the Court whose that, as the joint act of the legislative and activities are constitutionally protected. executive authorities, a law is supposed to Invalidation of the statute “on its face”, rather have been carefully studied and determined to than “as applied”, is permitted in the interest of be constitutional before it was finally enacted. preventing a “chilling effect” on freedom of Hence, as long as there is some other basis expression (Justice Mendoza’s concurring that can be used by the courts for its decision, opinion in Cruz v. DENR, G.R. No. 135395, the constitutionality of the challenged law will December 06, 2000) A facial challenge to a not be touched and the case will be decided legislative act is the most difficult challenge to on other available grounds.492 mount successfully since the challenge must establish that no set of circumstances exists Motu Propio Exercise of Judicial Review. under which the act would be valid. (Estrada v. While courts will not ordinarily pass upon Sandiganbayan, G.R. No. 148560, November 19, 2001)488 488 Antonio B. Nachura, Outline/Reviewer in Political Law 23 (2006 ed.) 489486 Bernas Commentary, p 949(2003 ed). Jacinto Jimenez, Political Law Compendium, 339 (2006 ed.) 490487 Cruz, Philippine Political Law, p. 247 (1995 ed). Facial Challenge is a manner of challenging a statute in court, in 491which the plaintiff alleges that the statute is always, and under all Bernas Commentary, p 952(2003 ed). 492circumstances, unconstitutional, and therefore void. Cruz, Philippine Political Law, p. 247 (1995 ed).I sweat, I bleed, I soar… 113Service, Sacrifice, Excellence
  • 114. FRATERNAL ORDER OF UTOPIA ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW ARIS S. MANGUERA constitutional questions which are not raised in wisdom, not legality, of a particular measure. the pleadings, a court is not precluded from (Tanada v. Cuenco) inquiring into its own jurisdiction or be compelled to enter a judgment that it lacks 3. Guidelines for determining whether a jurisdiction to enter. Since a court may question is political. determine whether or not it has jurisdiction, it Textual Kind necessarily follows that it can inquire into the 1. A textually demonstrable constitutional constitutionality of a statute on which its commitment of the issue to a political jurisdiction depends. (Fabian v. Desierto, 295 department; SCRA 470)493 Functional Kind 2. Lack of judicially discoverable andF. Political Questions (1995 Bar Question) manageable standards for resolving it;Justiciable v. Political QuestionDefinition of Political Question 3. Impossibility of deciding a caseGuidelines (Baker v. Carr) without an initial determination of aJusticiable v. Political kind clearly for non-judicial discretion;Suspension of Writ and Proclamation of ML (Baker v. Carr, 369 US 186 (1962))496Calling Our Power of the President Prudential TypeImpeachment of a Supreme Court Justice 4. Impossibility of a court’s undertaking independent resolution without expressing 1. Justiciable v. Political Questions lack of the respect due coordinate branches of the government; The distinction between justiciable and political 5. An unusual need for unquestioning questions can perhaps best be illustrated by the adherence to a political decision already suspension or expulsion of a member of Congress, made; which must be based upon the ground of “disorderly behavior” and concurred in by at least 6. Potentiality of embarrassment from 2/3 of all his colleagues. The determination of what multifarious pronouncements by various constitutes disorderly behavior is a political departments. (Baker v. Carr, 369 US 186 question and therefore not cognizable by the court; (1962) but the disciplinary measure may nonetheless be (Bernas submits that the Grave Abuse Clause disauthorized if it was supported by less than the has eliminated the prudential type of political required vote. The latter issue, dealing as it does questions from Philippine jurisprudence.497 with a procedural rule the interpretation of which Hence, the question is not political even there calls only for mathematical computation, is a is an “unusual need for questioning adherence justiciable question.494 to a political decision already made; or the potentiality of embarrassment from 2. Political Questions, Definition multifarious pronouncements by various departments on one question.”498) Political questions are those questions which under the Constitution are: Examples of Textual Kind499: 1. To be decided by the people in their 1. Alejandrino v. Quezon 26 Phil 83 (1924) : sovereign capacity, or The SC through Justice Malcolm held, “Mandamus will not lie agasint the legislative 2. In regard to which full discretionary body, its members, or its officers, to compel authority has been delegated to the the performance of duties purely legislative in legislative or executive branch of the their character which therefore pertain to their government.495 (Tanada v. Cuenco, 1965) legislative functions and over which they have exclusive control.” Political questions connotes “questions of policy.” It is concerned with issues dependent upon the 2. Osmena v. Pendatun 109 Phil 863 (1960): The SC refused to interpose itself in the matter493 of suspension of Osmena Jr., for a speech Jacinto Jimenez, Political Law Compendium, 330 (2006 ed.) delivered on the floor of Congress. Whether he494 committed “disorderly behavior” was Cruz, Philippine Political Law, p. 78(1995 ed).495 Cruz: Where the matter falls under the discretion of another something in regard to which full discretionarydepartment or especially the people themselves, the decision reached authority had been given to the legislature.is in the category of a political question and consequently may not be 496the subject of judicial review. Bernas Commentary, p 959(2003 ed); Bernas Primer at 348 (2006Accordingly, considerations affecting the wisdom, efficacy or ed.)practicability of a law should come under th