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POLITICAL LAW REVIEW

(Based on the Supreme Court Syllabus)

ATTY. ALFREDO G. DEL RIO

A. The Constitution

A.1. Definition, Nature and Concepts

A.1.1. ‘’Is a written instrument by which the fundamental powers of government are established, limited and defined, and by which these powers are distributed among several departments, for their more safe and useful exercise for the benefit of the body politic” (Miller, Lectures on the Constitution of the United States (1863).

A.1.2. Nature – That body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised (Cooley, Constitutional Limitations, p. 1).

A.1.3.

Concepts of Constitution

At present there are two recognized concepts of the constitution namely:

1. American or the Written Constitution

a) Generally the Americans conceive of a constitution as something that must be written, yet this does not mean that the working or operation of the American government is based entirely on the provisions of such written constitution.

b) A constitution is the supreme law of the land which must serve as basis of the acts of all the different branches and officials in the government.

Note: A written constitution is referred as a rigid one than that of an unwritten constitution which is flexible.

2. English or the Unwritten Constitution : consists of rules which have not been integrated into a single, concrete form but are scattered in various sources, such as statutes of a fundamental character, judicial decisions, commentaries of publicists, customs and traditions, and certain common law principles (Cruz, Constitutional law, pp. 4-5). It is one which is found only in various documents or court decisions

and may be amended through ordinary legislation. It is flexible (Bernas, The 1987 Philippine Constitution A Reviewer- Primer).

A.2. Parts of written constitution

A.2.1.

Constitution of government: provisions setting up the government structure, administration and defining the electorate.

A.2.2.

Constitution of liberty: provisions which guarantee individual fundamental liberties against government abuse, setting forth the fundamental civil and political rights of the citizens.

A.2.3.

Constitution of sovereignty: provisions which outline the modes whereby the sovereign people may change the constitution.

A. 3. Amendments and Revisions

A.3.1.

Amendment is the change in one or few specific provisions of the constitution to improve specific parts or to add new provisions or to suppress existing ones demanded by present conditions.

A.3.2.

Revision is a re-evaluation of the whole document to determine how and to what extent it should be altered. It could lead to the entire structural change in the government.

A.3.3.

Article XVII Amendments or revisions

“Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1)

The Congress, upon a vote of three-fourths of all its members (Congress sitting itself as a constituent assembly itself) or

(2)

A constitutional convention.

TAKE NOTE OF THE REQUISITE VOTES:

1)

¾ votes for congress ( 3/4 of the Senate 3/4 of the House of Representatives to convert itself into a constituent assembly which means it could propose amendments or revision to the constitution;

2)

2/3 vote of all its members to call a constitutional convention;

3)

majority vote to submit to the electorate the question of calling such a convention.

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Precisely the provision states:

(2/3) of all its

members, call a constitutional convention, or by a majority vote of all its members, submit to the electorate the question of calling such a convention’’ (Section 3, Art. XVII)

“The Congress, may, by a vote of two-thirds

RATIFICATION

“Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when RATIFIED by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty (60) days nor later than ninety (90) days after the approval of such amendment or revision (Section 4, Art. XVII).

A.3.4. Amendments through Peoples’ Initiative

“Amendments (not revision) to this Constitution may likewise be directly proposed by the people through initiative (HOW?) upon a petition of at least twelve per centum (12%) of the total number of registered voters, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. No amendment under this section shall be authorized within five (5) years following the ratification of this Constitution nor oftener than once every five (5) years’’ (Section 2, Art. XVII).

A.4.

Self-Executing and Non-Self-Executing Provisions

A.4.1.

Provision which is complete in itself; is operative without the aid of enabling legislation; sufficient rule is supplied in the grant or rights for the enjoyment and protection of the people is self-executing. Example: Bill of Rights

A.4.2

Provision providing a general principle is usually not self-executing. Such provision needs an enabling statute.

A.5.

General Provisions

A.5.1. “The flag of the Philippines shall be red, white, and blue, with a sun and three starts as consecrated and honored by the people and recognized by law” (Section 1, Art. XVI).

Note:

The design of the Philippine flag may be changed via constitutional amendment.

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A.5.2.

“The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum” (Section 2, Art. XVI).

A.5.3.

The State may not be sued without its consent” (Section 4).

A.5.4. “Sovereign is exempt from suit on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends” (Kawananakoa v. Polybank, 205 U.S. 349, 353 (1907; Republic v. Mirasol, 54 SCRA 831) Nevertheless, it may be sued if it gives consent either express or implied. It is also called as the Royal Prerogative of Dishonesty (Outline Reviewer in Political Law, Nachura p. 23, 2005 Edition).

A.5.5.

A suit is against the State:

1)

When the Republic is sued by name or eo nomine

 

2)

When

the

suit

is

against

an

unincorporated

government

agency;

3)

When the suit is on its face against a government officer but

the case is such that ultimate liability will belong not to the officer but to the government.

In the above cited three (3) instances the State may or may not consent.

A.5.6.

The following enjoy immunity from suit:

1)

Other states on the principle of par in parem non habet imperium. The State is personified with its head who is inviolable. State agent has immunity as long as it can be established that the action is within the ambit of the directives of the sending State. He is liable if the suit is in his individual capacity and his act done in bad faith or malice and ultra vires from his directives;

2)

The United Nations and its organs and specialized agencies.

Note: Immunity of states from suit is also a rule in international law. Determination should be made whether the act of the state is an act jure imperii (sovereign activity) or jure gestionis (business, commercial, or proprietary acts ). If the act is jure imperii immunity follows; if jure gestionis suit may be filed.

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A.5.7.

State’s consent could be obtained expressly or impliedly.

1)

Express consent is given when the law expressly grant authority to sue the State or any of its agencies.

2)

Implied consent is given:

 

a) When the state enters into a private contract except when the contract is incidental to the performance of a governmental function;

b) When the state sues a private party, unless the suit is entered into only to resist a claim;

c) When the state enters into an operation that is essentially a business operation unless the business operation is incidental to a governmental function.

d) When the state sues and a counterclaim is made (PCGG v. Sandiganbayan, G.R. No. 90478, Nov. 21, 1991).

A.5.8.

Would execution follow after the State is held liable?

“The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit claimant’s action “only up to the completion of proceedings anterior to the state of execution” and that the power of the Courts ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objectives, as appropriated by law” (Commissioner of Public Highways v. San Diego, 31 SCRA 616, 625 (1970).

A.5.9. Money claims against the State as provided in Commonwealth Act No. 327 is filed with the COA. “Section 1. In all cases involving the settlement of Accounts or claims, other than those of accountable officers, the Auditor General(COA) shall act and decide the same within sixty (60) days, exclusive of Sundays and holidays after their presentation. If accountable officers, 100 days is the limit.

In a proper case, recourse could be had with Rule 65, Rules of Court, by way of certiorari.

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A.5.10. ‘’The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve as may be provided by law. It shall keep a regular force necessary for the security of the State’’(Section 4, Art. XVI – General Provisions).

A.5.11.

‘’The ownership and management of MASS MEDIA shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, WHOLLY OWNED AND MANAGED (100% Filipino) by such citizens’’ (Section 11 (1).

“The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed.

“The ADVERTISING INDUSTRY is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.

“Only Filipino citizens or corporations or associations at least seventy per centum ( 70% ) of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry.

“The participation of foreign investors in the governing body of entities in such industry (advertising) shall be limited to their proportionate share in the capital thereof (30 per centum (30%), and all the executive and managing officers of such entities must be citizens of the Philippines.”

B. GENERAL CONSIDERATIONS

B.1. NATIONAL TERRITORY

“Section 1. The national territory comprises the Philippine

archipelago, with all the islands and waters embraced therein, and all other

territories

jurisdiction,

consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines’’ (Section 1, Art. I, The National Territory).

over

which

the

Philippines

has

sovereignty

or

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B.1.1.

The

Archipelago

Doctrine:

“The

waters

around,

between

and

connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines”.

B.1.2.

Straight

baseline

method:

 

Imaginary

drawing

of

straight

lines

connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast. The internal waters and the territorial waters are divided by these baselines.

B.1.3. The Philippine position with regard to internal waters is that it is not subject to the right of innocent passage while the UNCLOS regard

internal waters as subject to innocent passage.

means that merchant vessels may pass through the internal waters as long as the rights of the coastal state are not prejudiced. In case of violation, the coastal state may pursue the offending vessel known in international law as the doctrine of hot pursuit.

Innocent passage

B.1.4. Under the UNCLOS dated April 30, 1982 and ratified by the Philippines in August 1983, the territorial sea is 12 miles nautical miles from the baseline; 12 nautical miles as contiguous zone; 200

nautical miles as the exclusive economic

nautical miles as continental shelf. The contiguous zone and the EEZ are not part of the territory of the Philippines but it enjoys preferential rights over the marine resources within the zones.

350

zone

(EEZ)

and

B.2. State Immunity (previously discussed under General Provisions)

B.3. Principles and Policies

B.3.1.

‘’The Philippines is a democratic and republican state. Sovereignty (source of ultimate legal authority) resides in the people and all government authority emanates from them” (Section 1, Art. II).

B.3.2.

Political sovereignty is the sum total of all the influences in a state, legal and non-legal, which determines the course of law.

B.3.3.

Legal sovereignty is the supreme lawmaking authority.

B.3.4.

Section 2 is the “political creed of the nation” (Vicente Sinco cited in Bernas, 1987 Philippine Constitution: A Commentary p. 31).

B.3.5.

A republican state is a state wherein all government authority emanates from the people and is exercised by representatives chosen by the people.

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B.3.6. “Democracy’’ is a political ideology that believed that government is for the people, by the people and for the people. The Philippines is not only representative or republican state but it also shares some aspects of direct democracy like initiative and referendum.

B.3.7. Government is defined as “that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them” ( U.S. v. Dorr, 2 Phil 332 cited in Bacani v. Nacoco, 100 Phil 468, 471 (1956).

B.3.8. Functions of government are classified into:

a)

Constituent functions

(governmental) (jus emperii) are those

that should be done as they constitute the very bonds of society.

Examples: The keeping of order; fixing of the legal relations between spouses, parents and children, and definition and punishment of crime

b)

Ministrant functions (proprietary) (jus gestioni)

those that may

be done (optional) for achieving a better life for the community.

Example: National Irrigation Authority

B.3.9.

According to legitimacy, governments are either de jure, one established by authority of the legitimate sovereign, and de facto is one established in defiance of the legitimate authority.

De facto government are classified as:

1) government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter;

2) established and maintained by military forces who invade and occupy a territory of the enemy in the course of war; and

3)

established as an independent government by the inhabitants of a country who rise in insurrection against the parent state.

B.3.10. “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of

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peace, equality, justice, freedom, cooperation, and amity with all nations” (Section 2, Article II Declaration….).

B.3.10.1.

The Philippines renounces AGGRESSIVE WAR.

B.3.10.2. The Philippines adopts generally accepted principles of international law as part of the law of the land. This is the doctrine of incorporation ,where there is no need for a statutory enactment, as distinguished from the doctrine of transformation which calls for the congress of a state to pass a law adopting or adhering to an international law. Such adherence to international law is of judicial notice (Kuroda v. Jalandoni, 83 Phil. 171 (1949); Agustin v. Edu, 88 SCRA 195, 213 (February 2, 1979); J.B.L. Reyes v. Bagatsing, G.R. 65366, October 25, 1983).

B.3.10.3.

The doctrine of incorporation is applied by our courts when confronted by cases of conflict between international law and municipal law e.g., constitution and local laws. Before application of the doctrine, efforts must be exerted to harmonize them. When the conflict is diametrically opposed to each other, our jurisprudence has shown to apply the municipal law for

the reason that courts are part and parcel of municipal

all

law

and

are

bound

to

give

due

regard

to

circumstances.

B.3.10.4. Amity with all nations does not mean automatic diplomatic recognition of all nations. Amity is an ideal to be aimed at yet diplomatic recognition and intercourse remain a matter of executive discretion.

B.3.11.

“Civilian authority is, at all times, supreme over the military. The armed force of the Philippines is the protector of the people and the state. Its goal is to secure the sovereignty of the State and the integrity of the national territory” (Section 3, Art. II Declaration )

B.3.11.1. The armed forces of the Philippines exist to protect the people, to secure the sovereignty of the State, and to preserve the integrity of the national territory.

B.3.12.

“The prime duty of the government is to serve and protect the people. The government may call upon the people to defend the

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State and, in the fulfilment thereof; all citizens may be required to render personal military or civil service” (Section 4, Art. II)

B.3.12.1. Posse Comitatus – the force of the county. “The government may call upon the people to defend the State and, in the fulfilment thereof; all citizens may be required to render personal military or civil service.’’

B.3.13.

The separation of Church and State shall be inviolable” (Section 6, Art. II).

I. Constitutional provisions on non-establishment of religion:

B.3.13.1.

“No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

B.3.13.2.

“x x x. Religious denominations and sects shall not be registered” (Section 2 (5), Article IX –C).

B.3.13.3.

“The party-list x x x., and such other sectors as may be provided by law, EXCEPT religious sector’’ (Section 5 (2) last sentence, Art. VI).

B.3.13.4.

“No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of

religion, or of any priest, preacher, minister, or other religious teacher or dignitary as such except when such priest, preacher, minister, or dignitary is assigned to

or

the

armed

forces,

or

to

any

penal

institution,

government orphanage or leprosarium’’ (Section 29 (2)

Art

for sectarian

VI (prohibition

on

appropriation

benefit).

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EXCEPTIONS TO THE NON-ESTABLISHMENT CLAUSE AND PROHIBITION ON THE FREE EXERCISE OF RELIGION

B.3.14. “Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation” (Section 28 (3), Art. VI, Legislative Department).

B.3.15.

“No public money or property shall be appropriated x x x except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium” (Section 29 (2), Art. VI, Legislative Department).

B.3.16.

“At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the government” (Section 3 (3), Art. XIV).

B.3.17.

“Educational institutions, other than those established by religious groups, and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum (60% capital, of which is owned by such citizens” (Section 4 (2), Article XIV).

B.3.18. “The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and self-determination” (Section 7, Art. II Declaration).

Note of the following paramount considerations:

a) national sovereignty

b) territorial integrity

c) national interest

d) self-determination

B.3.18.1. “After the expiration in 1991 of the agreement between the Republic of the Philippines and the United Sates of

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America concerning military bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people, in a national referendum held for that purpose, and recognized as a treaty by the other contracting State” Section 25, Article XVIII, Transitory ).

Note:

B.3.18.2.

The phrase “and recognized as a treaty by the other

Philippine

military bases with the United States was never ratified by the United States Senate. Now, the other contracting State must recognized the agreement as a treaty so that the Philippines would consider the same as a treaty. In fact, the executive (Ramos) attempt to forge a new bases treaty with the United States but was not ratified by the Philippine Senate.

made

contracting

state”

was

because

the

“The

Philippines

renounces

war as

an

instrument

of

national policy, adopts the generally accepted principles of international law as part of the law of the land and

adheres to the policy of peace, equality, justice, freedom,

all nations” (Section 2,

cooperation, and amity with Article II Declaration).

B.3.19.

“The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory” (Section 8, Art. II).

B.3.19.1.

The policy includes nuclear arms tests. The policy does not prohibit the peaceful uses of nuclear energy.

B.3.20.

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

B.3.21. “The state shall promote social justice in all phases of national development’ (Section 10, Art. 1I).

B.3.21.1. Social justice is the equalization of economic, political, and social opportunities with special emphasis on the duty of the state to tilt the balance of social forces by

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favoring the disadvantage in life. In the language of the 1935 Convention, it means justice for the common tao; in the shibboleth of the 1973 Convention, those who have less in life must have more in law ( Bernas, The 1987 Phlippine Constitution A Reviewer – Primer pp. 23).

B.3.22. “The State values the dignity of every human person and guarantee full respect for human rights” (Section 11, Art. II).

B.3.22.1. Human rights – the supreme, inherent, and inalienable rights to life, to dignity, and to self-development. It is concerned with issues in both areas of civil and political rights and economic, social, and cultural rights founded on internationally accepted human rights and obligations to which the Philippine government is a state party.

B.3.23.

“The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the government” (Section 12, Art. II Declaration…).

Note: The Constitution asserts protection of life from the time of conception in order the prevent the State from adopting the U.S. case of Roe v. Wade 410 U.S. 113 (1973) liberalizing abortion laws up to the sixth month of pregnancy by allowing abortion anytime during the first six months of pregnancy provided it can be done without danger to the mother.

B.3.24. “The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs” (Section 13, Art. II Dec.). B.3.24.1. Republic Act 7610 penalizing child prostitution and other sexual abuses

B.3.25. “The State recognizes the role of women in nation building, and shall ensure the fundamental equality before the law of women and men” (Section 14, Art. II Dec.).

Note: R.A. 7192 Women in Development and Nation Building Act, Feb. 12,

1992.

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B.3.25.1. Relate also Section 14, Article XIII, Social Justice and Human Rights: “The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.”

B.3.25.2. “Petitioner’s policy neither to accept nor consider disqualified from work women workers who contract marriage runs afoul of the test of, and the right against discrimination, which is guaranteed by the Constitution (PTT Co. v. NLRC,, G.R. 118978, May 23, 1997). Discrimination against married women cannot be adopted as a general principle. Requirement that a woman employee should remain unmarried may be justified as a “bona fide occupation qualification”.

B.3.26. “The State shall protect and promote the right to health of the people and instill health consciousness among them” (Section 15, Art. II Decl.).

B.3.27. “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature” (Section 16, Art. II Decl.)

B.3.27.1. This provision has conferred “standing” on minors duly joined by their respective parents to challenge the continued grant of Timber License Agreement (TLA) for commercial logging purposes (Oposa v. Factoran, Jr., 224 SCRA 792, 1993).

B.3.27.2. The Supreme Court upheld the authority of the Laguna Lake Development Authority (LLDA) to protect the community in the Laguna Lake area from the deleterious effects of pollutants emanating from garbage dumping and discharge of wastes over that of the local governments’ claim of local autonomy (LLDA v. CA G.R. 120865-71, December 7, 1995).

B.3.28. “The State shall give priority to education, science and technology, arts, culture and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development” (Section 17, Art. II, Decl).

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B.3.28.1. The provision is merely directory; the government is free to balance the demands of education against other imperatives of national interest (Guingona v. Carague, 196 SCRA 221). B.3.29. “The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare” (Section 18, Art. II Decl). B.3.29.1. The human factor has primacy over the non-human factors in production.

B.3.29.2. “What concerns the constitution more paramount is that such an employment be, above all, decent, just and humane”. Employment in the Philippines is inadequate resulting to migration of workers abroad hence, the government is duty bound to provide adequate protection, personally and economically, while away from their families (Philippine Association of Service Exporters v Drilon, 163 SCRA 386).

B.3.30. “The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos” (Section 19, Art. II, Decl).

Note:

This provision is a helpful guide in the interpretation of provisions on national economy and patrimony (Art. XII)

B.3.31. “The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments” (Section 20, Art. II, Decl. ).

B.3.31.1.

This provision is a recognition of the importance of private initiative in nation building. It is not a call to abdicate duty to the people.

B.3.31.2. Although the constitution enshrines free enterprise as a policy, it however reserves to the government the power to intervene whenever necessary for the promotion of the general welfare as provided in Sections 6 and 19 of Art. XII National Economy and Patrimony which provide:

“The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises,

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subject to the duty of the state to promote distributive justice and to intervene when the common good so demands” (Section

6)

“The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed” (Section 19).

B.3.32. “The State shall promote comprehensive rural development and agrarian reform”(Section 21, Art. II, Decl.).

Note: Relate this provision to Sections 4-10 of Article XIII, Social Justice and Human Rights as follows:

“Section 4.

The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular

or

collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress

farmworkers,

who

are

landless,

to

own

directly

may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the

In determining retention

limits the State shall respect the right of small landowners.

The State shall further provide for incentives for voluntary land-sharing.”

payment of just compensation.

“Section 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers’ organizations to participate in the planning, organization, management of the program, and shall provide support to agriculture through appropriate technology and research and adequate financial, production, marketing, and other support services.”

“Section 6.

The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights,

of

indigenous communities to their ancestral lands.

homestead

rights

of

small

settlers,

and

the

rights

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The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law.”

“Section 7. The State shall protect the rights of subsistence fishermen, especially of local communities to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fish workers shall receive a just share from their labor in the enjoyment of marine and fishing resources.”

“Section 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honoured as equity in enterprises of their choice.”

“Section 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such programs the State shall respect the rights of small property owners.”

“Section 10. Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be located.

B.3.33

“The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development” (Section 22, Art II Decl.).

17

B.3.34 “The State shall encourage non-governmental, community based, or sectoral organizations that promote the welfare of the nation” (Section 23, Art. II Decl.).

Relate this provision to:

B.3.34.1. “The State shall respect the role of independent people’s organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means.”

“People’s organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure. (Section 15, Art. XIII, Social Justice and Human Rights).

B.3.35 “The State recognizes the vital role of communication and information in nation-building” (Section 24, Art. II, Decl. and Section 23 Art XVIII – Transitory Provisions)

Relate this provision to Sections 10 and 11, Art. XVI – General Provisions

“Section 11. The State shall provide the policy environment for the full development of Filipino capability and the emergence of

and

aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a

communications

structures

suitable

to

the

needs

policy that respects the freedom of speech and of the press.”

“Section 12. The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly owned and managed by such citizens.

“Section 23 Art. XVIII “Advertising entities affected by paragraph 2, Section 11 of Art. XVI of this Constitution shall have five years from its ratification to comply on a graduated and proportionate basis with thye minimum Filipino ownership requirement therein.

B.3.36 “The State shall ensure the autonomy of local governments” (Section 25 Art. II, Decl.).

Note: Local autonomy under the Constitution is decentralization and does not make the local governments sovereign within the State

18

or an imperium in imperio (Magtajas v. Pryce Properties, 234 SCRA 255 (1994); LLDA v. CA G.R. 120865-71, December 7,

1995).

B.3.37. “The State shall guarantee equal access of opportunities for public service, and prohibit dynasties as may be defined by law” (Section 26, Art II Decl.)

B.3.38. “The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption” (Section 27, Art. II Decl.).

B.3.39. “Subject to reasonable conditions prescribed by law, the State adopt and implements a policy of full public disclosure of all its transactions involving public interest” (Section 28, Art. II, Decl.).

B.4. SEPARATION OF POWERS; B.5 CHECKS AND BALANCES

The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them (Section 1. Art. II). “A republican form of government rests on the conviction that sovereignty should reside in the people and that all government authority must emanate from them. It abhors the concentration of power on one or a few, cognizant that power when absolute, can lead to abuse, but it also shuns a direct and unbridled rule by the people, a veritable kindling to the passionate fires of anarchy. Our people have accepted this notion and decided to delegate the basic state authority to principally three (3) branches of government – the Executive, the Legislative, and the Judiciary – each branch being supreme in its own sphere but with constitutional limits and a firm tripod of checks and balances.”

The Executive branch is headed by the President, who is elected by a direct vote of the people. The term of office of the President, as well as the Vice-President is six (6) years, without re- election on the part of the President and with re-election on the part of the Vice-President provided that he shall not serve for more than two (2) successive. As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are faithfully enforced by the officials and employees of his department. He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office or interfere with the discretion of its officials. Corollary to the power of control, the President also has the

19

duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to effectively discharge his duties.

The President exercises general supervision over all local government units and is also the Commander-in-Chief of the Armed Forces of the Philippines.

Under the Presidential form of government, the executive and legislative, though political entities are entirely separate, subject to the mechanisms of checks and balances.

The legislative branch, which has the authority to enact, amend or repeal laws, is the Congress. Congress is vested with the tremendous power of the purse traditionally recognized in the constitution that “no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” It comprehends both the power to generate money by taxation (the power to tax) and the power to spend it (the power to appropriate). Of course, the power to appropriate carries with it the power to specify the amount that may be spend and the purpose for which it may be spent.

In a bicameral system, the Congress is composed of the Senate and the House of Representatives.

The Senate is composed of twenty-four (24) Senators, who are elected at large by the qualified voters.

The House of Representatives is composed of not more than two hundred and fifty (250) members, unless otherwise fixed by law, elected from legislative districts apportioned among the provinces, cities, and metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

Judicial power is vested in the Supreme Court and in such lower courts as may be established by law. The Supreme Court has the moderating power to determine the proper allocation of power between the branches of government. When the “judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine

20

conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.” “The judiciary may not have the power of the sword, may not have the power of the purse, but it has the power to interpret the Constitution, and the unerring lessons of history tell us that rightly wielded, that power can make a difference for good” (Chief Justice Reynato S. Puno).

Even if Congress has the power to define, prescribe and apportion the jurisdiction of the various courts, Congress cannot

the

Constitution. No law shall also be passed reorganizing the judiciary when it undermines the security of tenure of its members. The Supreme Court also has administrative supervision over all courts and the personnel thereof, having the power to discipline or dismiss judges of lower courts.

deprive

the

Supreme

Court

of

its

jurisdiction

provided

in

The Supreme Court is composed of a Chief Justice and fourteen (14) Associate Justices. It may sit en banc or, in its divisions of three, five or seven members. A member of the Supreme Court must be a natural-born citizen of the Philippines, at least forty (40) years of age and must have been for fifteen (15) years or more a judge of a lower court or engaged in the practice of law in the Philippines. Justices hold office during good behaviour until they reach the age of seventy (70) years or become incapacitated to discharge the duties of their office.

B.6.

“The purpose of separation of powers and “checks and balances” is to prevent concentration of powers in one department and thereby to avoid tyranny. But the price paid for the insurance against tyranny is the risk of a degree of inefficiency and even the danger of gridlock. As Justice Brandeis put it, “the doctrine of

separation of power was adopted

to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of the inevitable friction incident to the distribution of governmental powers among the three departments, to

save the people from autocracy” (Bernas, The 1987 Constitution: A Commentary citing Myers v U.S. 272 U.S. 52, 293 (1926)

and not to promote efficiency but

NON-DELEGATION OF POWERS

“Delegata potestas non potest delegari is the maxim of agency which John Locke borrowed and formulated as a dogma of political science. Chief Justice Taft offered the following explanation of the

origin and limitations on this idea as a postulate of constitutional law:

it is a breach of the

“In carrying out that constitutional division

21

national fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, of if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two branches in so far as the action invoked shall not be as assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government coordination” (Corwin, Constitution of the United States of America, 95 (1964), cited in Bernas, The 1987 Constitution: A commentary 1996 Edition).

The doctrine of separation of powers prohibits the delegation of PURELY legislative power. The Supreme Court gave the reason for the restriction:

“One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by the department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility of choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.

“This doctrine is based on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another” (U.S. v. Barias, 11 Phil. 327, 329-330 (1908).

“At

least

three

distinct

ideas

have

contributed

to

the

development

of

the

principle

that

legislative

power

cannot

be

delegated.

One

is

the

doctrine

of

separation

of

powers

of

government: Why go to the trouble of separating the three powers of government if they can straightway remerge on their own motion? The second is the concept of due process of law which precludes the transfer of regulatory functions to private persons. Lastly, there is the maxim of agency “Delegata potestas non potest delegari.

22

The doctrine of separation of powers does not, however, absolutely prohibit delegation of legislative power. The Constitution itself makes the delegation of legislative power to the President, the Supreme Court, and the local government units, as follows:

1) Section 23, Article VI. (2) “In times of war or other national emergency, the Congress may BY LAW, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner WITHDRAWN BY RESOLUTION of the Congress, such powers shall cease upon the next adjournment thereof.”

2)

Section 28 (2) Article VI. “The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and, and other duties or imposts within the framework of the national development program of the government.”

3) Section 5 (5), Article VIII. “Promulgate rules concerning the protection and enforcement of constitutional rights, pleadings, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.”

4) Section 48 Local Government Code of 1991 “Local legislative power shall be exercised by the sangguniang panlalawigan for the province; the sangguniang panlungsod for the city; the sangguniang bayan for the municipality; and the sangguniang barangay for the barangay.”

To be valid, however, the Supreme Court delineated the metes and bounds by coming up with two tests:

“There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz. the completeness test and the sufficient standard test. Under the FIRST TEST, the law must be COMPLETE in all its terms and conditions when it leaves the legislative such that when it reaches the delegate the only thing he will have to do is to enforce it. Under the SUFFICIENT STANDARD TEST, there must be

23

adequate guidelines or limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation from running riot.”

“The validity of delegating legislative power is now a quiet area in our constitutional landscape. As sagely observed, delegation of legislative power has become an inevitability in light of the increasing complexity of the task of government. Thus, courts bend as far back as possible to sustain the constitutionality of laws which are assailed as unduly delegating legislative powers. Citing Hirabashi v. United States as authority, Mr. Justice Isagani A. Cruz states: “that even if the law does not expressly pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity” (Eastern Shipping Lines, Inc., v. POEA, 89, SCAD 335, 281 SCRA 330 (1997).

B.7

FORMS OF GOVERNMENT

As to legitimacy, governments are classified into de facto and de jure. A government de jure is one established by authority of the legitimate sovereign. A government de facto is one established in defiance of the legitimate sovereign. It is further classified as: a) government that gets possession and control of, or usurps, by force or by the voice of the majority; b) that which is established and maintained by invading military forces; c) that established as an independent government by inhabitants of a country who rise in insurrection against the parent state (Bernas, The 1987 Constitution A comprehensive Reviewer 2006 Edition).

As to form, governments are classified into presidential and parliamentary. The underlying principle in presidential form of government is “separation of power” while in parliamentary form of government: a) the members of the government or cabinet or the executive arm are simultaneously members of the legislature; b) the cabinet is a committee of the legislature, c) the Prime Minister is at the apex of the pyramidal structure; d) the government or cabinet remains in power only for as long as it has the support of the majority of the legislature e) both have control devices with which each can demand of the other immediate political responsibility. Legislature may cast a vote of non-confidence and the government is ousted while government has the power to dissolve the legislature and call for new elections.

C. LEGISLATIVE DEPARTMENT

C.1. Who may exercise legislative power?

24

C.1.1. “The Legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum” (Section 1, Art. VI)

C.1.2. “Local legislative power shall be exercised by the sangguniang panlalawigan for the province; the sangguniang panglunsod for the city; the sangguniang barangay for the barangay” (Section 48, Local Government Code of 1991.

C.1.3. “The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof (Section 32, Art. VI)

C.1.3.1 In compliance with the constitutional mandate, Congress passed Republic Act 6735 signed into law by President C. Aquino on August 4, 1989 known as An Act Providing for a System of Initiative and Referendum.

C.1.3.2 Initiative is the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. There are three kinds of initiative, namely:

a) Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;

b) Initiative on Statutes which refers to a petition proposing to enact a national legislation; and

c) Initiative on Local Legislation which refers to a petition proposing to enact a regional, provincial, city, municipal or barangay law, resolution or ordinance.

C.1.3.3 What is an indirect initiative?

It is the exercise of initiative by the people through a proposition sent to Congress or local legislative body for action (Section 2, R.A. 6735).

C.1.3.4

What is a referendum?

25

It is the power of the electorate to approve or reject legislation through an election called for the purpose. It may be a referendum for statute or referendum on local laws.

C.2 HOUSES OF CONGRESS

C.2.1 Senate

C.2.1.1 Composition and election of Senate

“The Senate shall be composed of twenty-four (24) Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law (Section 2, Art. VI).

C.2.1.2

Qualification of Senators

“No person shall be a Senator unless he is a natural- born citizen of the Philippines, and, on the day of the election, is at least thirty-five (35) years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two (2) years immediately preceding the day of the election” (Section 3, Art. VI).

Note: “Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3) Section 1 hereof shall be deemed natural- born citizens” (Section 2, Art IV Citizenship).

C.2.2

The term of office of Senators; voluntary renunciation non- interruption of continuity of service for the full term of election

“The term of office of the Senators shall be six (6) years and shall commence, unless otherwise provided by law, at noon on the thirtieth (30) day of June next following their election.

“No Senator shall serve for more than TWO CONSECUTIVE TERMS. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected” (Section 4, Art. VI).

26

C.2.2.1. Does the limitation of election mean that a Senator who has served two consecutive terms must wait for six years before he can run again for the Senate? “The answer given to this question was that a Senator could run again three (3) years after the expiration of his second term” (Bernas, The 1987 Constitution: A Commentary citing II Record id at 590).

C. 3 House of Representatives

“Section 5. (1) “The House of Representatives shall be composed of not more than two hundred fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

“(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

“(3) Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

“(4)

Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section” (Article VI).

Note: The sectoral representative is now a thing in the past because sectoral representation in the house was only good for three (3) years after the ratification of the 1987 Constitution. At present, we have the district and party representatives.

27

C.3.1 District Representatives and apportionment: Macias v. Comelec, 3 SCRA 1, 7-8 (1961) “The underlying principle behind the rule on apportionment is the concept of equality of representation which is a basic principle of republicanism”

C.3.2 Section 5 (3) that “Each legislative district shall comprise as far as practicable, contiguous, compact and adjacent territory” is a prohibition of gerrymandering. Gerrymandering is a form of redistricting in which electoral districts or constituency boundaries are manipulated for electoral advantage. It derived from Mr. Eldridge Gerry 1744-1864 Massachusetts Governor

1810-1812.

C.3.2.1 Observance of the constitutional mandate on apportionment of representative district is a JUSTICIABLE QUESTION cognizable by the courts (Macias v. Comelec 3 SCRA 1, 7-8 (1961).

C.4. Party-list System Act (R.A. 7941)

It is a system of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections.

C.4.1 Qualifications of Party-List nominees – Natural born citizen of the Philippines, a registered voter, a resident of the Philippines for at least one year immediately preceding the day of election, able to read and write, a bona-fide member of the party or organization which he seeks to represent for at least 90 days preceding the day of the election, and is at least 25 years of age on the day of the election. With regard to the youth sector, he must be at least 25 years of age but not more than 30 years of age on the day of election. Any youth representative who

attains the age of 30

continue in office until the expiration of his term.

during his term shall be allowed to

C.4.2 Manner of Voting. Every voter shall be entitled to two votes: the first is a vote for the candidate for member of the House of Representatives in his legislative district and the second, a vote for the party, organization or coalition he wants represented in the House of Representatives; provided that a vote cast to a party, sectoral organization or coalition not entitled to be voted for shall not be counted.

28

C.4.3 Number. The party list representatives shall constitute 20% of the total number of the members of the House of Representatives including those under the party list.

“The Constitution and R.A. 7941 mandate at inviolable parameters, as follows:

least

four

a) the 20% allocation: the combined number of all party list congressmen shall not exceed 20% of the total membership of the House of Representatives;

b) the 2% threshold – only those parties garnering a minimum of 2% of total valid votes cast for the party-list system are qualified to have a seat in the House;

c) the three seat limit: each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats, one qualifying and two additional; and

d) proportional representation: the additional seats which a qualified party is entitled to is computed “in proportion to the total number of votes”.

C.5. Legislative privileges, inhibitions and disqualifications

C.5.1 Privilege from arrest: Section 11. Art. VI – “A senator or member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment (prison mayor), be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.”

C.5.1.1

Relate this Constitutional provision to Art. 145 of the Revised Penal Code, which states:

“The penalty of prision mayor shall be imposed upon any person who shall use force, intimidation threats or fraud to prevent any member of the National Assembly from attending the meetings of the assembly or any of its committees or subcommittees or divisions thereof, from expressing his opinions or casting his vote; and the penalty of prision correccional ( 6 months and 1 day to 6 years) shall be imposed upon any public officer or employee who shall, while the Assembly is in regular or special session, arrest or search any member thereof, except in case such member has committed a crime punishable under this

29

Code by a penalty higher than prision mayor” (6 years and 1 day to 12 years)

C.5.1.2

“while Congress is in session” means from opening until final adjournment.

C.5.1.3

Privilege of speech and of debate. “No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.”

Note: This is also known as ‘the parliamentary privilege of speech and debate”. The purpose of which “is to enable and encourage a representative of the public to discharge his public trust with firmness and success” for “it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense” (Tenny v. Brandhove, 341 U.S. 367).

C.5.1.4 “But it does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming a member thereof” (Osmena, Jr. v. Pendatun 109 Phil. 863, 868-69 (1960); Jimenez v. Cabangbang 17 SCRA 876). Precisely, our 1987 Constitution provides: “Each House may determine the rules of its proceedings, punish its members for disorderly behaviour, and with the concurrence of two- thirds (2/3) of all its members, suspend or expel, a member. A penalty of suspension, when imposed, shall not exceed sixty (60) days”.

C.6 Inhibitions

“No Senator or member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial or other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government or any subdivision, corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office” (Section 14, Art. VI).

30

C.6.1

A member of the Senate or member of the House of Representatives is prohibited to “personally appear” as counsel. A law firm has a personality separate and distinct from the partners.

C. 7 Disqualifications

“No Senator of member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government- owned or controlled corporations or their subsidiaries during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected” (Section 13, Art. VI).

C.7.1 No forfeiture shall take place if the member of Congress holds the other government office in an ex-officio (by reason of the office he holds) capacity e.g. Chairman of the Committee on Justice and as a member of the Judicial and Bar Council). However, there shall be automatic forfeiture the moment a member of Congress assumes such other government office (Adaza v. Pacana, 135 SCRA 431). The disqualification in the second sentence applies for the duration of the six-year term even if he (member of Congress) resigns before the end of his term.

C.8

Quorum and voting majorities

“A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent members in such manner, and under such penalties, as such House may provide” (Section 16 (2)

C.8.1 The basis in determining the existence of a quorum in the Senate is the total number of Senators who are in the country and within the coercive jurisdiction of the Senate (Avelino v. Cuenco, 83 Phil. 17)

C.8.2 There are three kinds of sessions in Congress, to wit:

C.8.2.1 Regular session. “Congress shall convene once every year on the fourth Monday of July, unless a different date is fixed by law, and shall continue for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays and legal holidays (Section 15, Art. VI).

31

C.8.2.2 Special session. “The President may call a special session at any time”(Section 15, Art VI) The purpose of the special session is for Congress to consider urgent legislative measures the President may want. However, it does not preclude Congress to consider measures other than that of the President. In fact, the Congress may hold session the whole year round without the need of special session called for by the President.

C.8.2.3 Joint session – both houses assembled either voting jointly or voting separately

Voting separately on matters pertaining to:

a) Section 4, Article VII – Canvassing of votes for presidential and vice-presidential elections;

b) Section 11, Article VII - Incapacity of the President to discharge his functions;

c) Section 9, Art. VII President (majority)

d) Section 23, Art. VI

- Confirmation of nomination of the Vice-

-

Declaration of war (2/3 vote)

e) Section 1, Art. XVII -

Voting jointly

Proposal to amend the Constitution

a) Section 18, Art. VII - Revocation or extension of proclamation suspending the privilege of the writ of habeas corpus or placing the Philippines under martial law.

C.9 Discipline of members

“Each House may determine the rules of its proceedings, punish its members for disorderly behaviour, and with the concurrence of two- thirds of all its members, suspend or expel, a member. A penalty of suspension, when imposed, shall not exceed sixty (60) days” (Section 16 (3), Art. VI).

C.9.1 “That the House is the judge of what constitutes disorderly

conferred

jurisdiction upon it, but also because the matter depends mainly

on factual circumstances of which the House knows best but which cannot be depicted in black and white for presentation to, and adjudication by the Courts (Osmena Jr. v. Pendatun 109

behaviour,

not

only

because

the

Constitution

has

32

Phil. 863 (1960). When, however, the legislative rule affects

private rights, the courts cannot altogether be excluded.

the construction to be given to a rule affects persons other than the members of the legislature, “the question presented is of necessity a judicial one” (Bernas, The 1987 Constitution: A Commentary citing U.S. Smith 286 U.S. 6 (1932); Vera v. Avelino, 77 Phil. 192, 206 (1946).

When

C.10 Electoral Tribunals and the Commission on Appointments

A. Nature

B. Powers

Section 17. Article VI. “The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of

their

respective

members.

Each

Electoral

Tribunal

shall

be

composed of nine (9) members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six (6) shall be members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior justice in the Electoral Tribunal shall be the chairman.”

C.10.1 The electoral tribunals are created as independent and non-partisan courts insulated from partisan influence and consideration. Members of the electoral tribunals enjoy security of tenure; their membership may be terminated for a just cause or the expiration of congressional term, death, resignation from the political party, formal affiliation with another political party or removal for other valid and legal grounds (Bondoc v. Pineda 201 SCRA 792).

C.10.2 The jurisdiction of the Electoral Tribunal to be the sole judge will take effect only after a valid proclamation of a

the

Electoral Tribunals are without jurisdiction (Aquino v Comelec, 248 SCRA 400).

winner.

In

the

absence

of

an

election

contest,

C.10.3 In Abbas v. Senate Electoral Tribunal, 166 SCRA 651, the Supreme Court held that it cannot order the disqualification of the Senators-members of the Electoral Tribunal who are respondents in the electoral protest

33

C.11

because the House Tribunal has its mandate under the Constitution. Also, the Supreme Court, under its

(grave

invalidated final vote tally made by the Electoral Tribunal without supporting evidence (Lerias v. House Electoral Tribunal 202 SCRA 808 (1991).

expanded

discretion),

jurisdiction

abuse

of

The Commission on Appointments

“Section 18, Art. VI. There shall be a Commission on Appointments consisting of the President of the Senate, as ex-officio Chairman, twelve (1) Senators and twelve (12) members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The Chairman of the Commission (Senate President) shall not vote, except

in

The Commission shall act on all appointments

submitted to it within thirty (30) session days of the Congress from their submission. The Commission shall rule by MAJORITY VOTE of all its members.”

case

of

a

tie.

C.11.1 The Commission on Appointments acts as a legislative check on the appointing authority of the President. Appointments issued by the President to the key officials enumerated in Section 16 Article VII need the consent of the Commission on Appointments for them to be effective.

C.11.2. Section 16, Article VII. “The President shall nominate and with the consent of the Commission on Appointments, appoint the

1)

heads of the Executive Departments,

2) other public ministers and consuls, or

3) officers of the armed forces from the rank of colonel or naval captain,

4) and other officers whose appointments are vested in him in this Constitution ( sectoral representatives under Section 7 Art. XVIII; and members of the Judicial and Bar Council under Section 8 (2) Art. VIII).

He shall appoint all other officers of the government whose appointments are not otherwise provided by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the

34

appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

“The President shall have the power to make appointments during the recess of the Congress (ad- interim appointments), whether voluntary or compulsory, but such appointments shall be effective only

1)

until

the

disapproval

by

Appointments or

the

Commission

on

2) until the next adjournment of the Congress.”

C.11.3.

Congress may not expand the list of those whose appointment needs confirmation by the Commission on Appointments (Calderon v. Carale, 208 SCRA 254 (1992); Tarrosa v. Singson 232 SCRA 553 (1994).

C.11.4 A regular appointment is one made by the President while Congress is in session and will take effect after confirmation by the Commission on Appointments. When approved, the appointment shall continue until the end of the term of the appointee or at the pleasure of the President.

C.11.5 An ad-interim appointment is one made by the President while Congress is in recess or not in session to meet the exigencies of the service. It takes effect upon acceptance by the appointee but ceases to be valid when disapproved by the Commission on appointments or upon the next adjournment of Congress. Disapproval by adjournment of Congress is “by-passed” through inaction by the Commission on Appointments.

C.11.6 When an ad-interim appointment is by-passed for lack of time or failure of the Commission on Appointment to act on it, no CA’s decision yet and the President has free hands to renew such ad-interim appointment (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002).

C.11.7 The clause “officers of the armed forces from the rank of colonel or naval captain” pertains to the military officers. It does not include the Philippine National Police and the Philippine Coast Guard which is now under the Department of Transportation and Communications (DOTC) (Soriano v. Lista, G.R. No. 153881, March 24, 2003).

35

C.12 Powers of Congress

C.12.1 Legislative

C.12.1.1 Legislative Inquiries and the Oversight Functions

“The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly approved rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected”(Section 21, Art. VI).

C.12.1.2 Section 21 provides the power and the limits on the power of legislative investigation as follows:

a) it must be “in aid of legislation”;

b) it must be in accordance with its duly approved rules of procedure; and

c) the rights of persons appearing in such inquiries shall be respected.

C.12. 2 The Oversight Functions

“It is the proper duty of a representative to look diligently into every affair of government and to talk much about what it sees. It is mean to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress has and use every means of acquainting itself with the acts and disposition of the administrative agents of government, the country must be helpless to learn how it is being served. The informing function of Congress should be preferred even to its legislative function.” (Woodrow Wilson,

1885)

“Virtually every democratic legislature and parliament has the authority to undertake and conduct oversight in almost every area of government activity …The House (of Representatives) can exercise competent, effective oversight to prod the Executive into more timely, proper and correct action… Information is critical to legislative oversight… Congressional oversight is about accountability and rule of law” (Rep. Roilo Golez, 2005).

36

“Congressional oversight is an integral part of a democratic system of government. The exercise by the legislature of this power is essential if transparency, integrity and efficiency in the performance of the functions of the other branches of government are to be maintained”(Rep. Joseph Emilio A. Abaya, Jr. 2005)

C.12.3 Section 1, Art. VI. “The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum”.”

C.12.4 1.4 Legislative power is the authority to enact, amend or repeal laws (keyword: EAR).

C.12.5

1.5 There are two kinds of legislative power in republican systems:

a) Original legislative power - which is possessed by the sovereign people;

b) Derivative legislative power - which has been delegated by the sovereign people to legislative bodies and is subordinate to the original power of the people. The Congress of the Philippines possessed this derivative legislative power.

C.12.6

1.6 Legislative power is further classified into:

a) constituent – one pertaining to the power to amend or revise the Constitution

b) ordinary – to pass ordinary laws.

C.13 Bicameral Conference Committee

“In a bicameral system bills are independently processed by both Houses of Congress. It is not unusual that the final version approved by one House differs from what has been approved by the other. The “conference committee” consisting of members nominated from both Houses, is an extra-constitutional creation of Congress who to Congress ways of reconciling conflicting provisions found in the Senate version and in the House version of a bill. It performs a necessary function in a bicameral system. However, since conference committees have merely delegated authority from Congress, they should not perform functions that Congress itself may not do. Moreover, their proposals need

37

confirmation by both Houses of Congress (Bernas, The 1987 Constitution: A Commentary, p702, 1996 ed.)

In Philippine Judges Association v. Prado, 227 SCRA 703, the court ruled that the jurisdiction of the Conference Committee is not limited to resolving differences between the Senate and House versions of the bill, it may propose an entirely new provision”. Suffice it to say, however, that their proposal need confirmation by both House of Congress.

C.14

Limitations on Legislative Power

C.14.1 Limitations on legislative power could be: Substantive and

Procedural.

Substantive

limitations

could

also

be

express

or

implied. Substantive express limitations are those which the Constitution expressly provide, e.g. bill of rights; appropriations that must emanate from the House of Representatives; no law granting appellate jurisdiction to the Supreme Court; while, the implied limitations are: a) the non- delegation of legislative powers, and b) prohibition against the passage of irrepealable laws.

Procedural limitations are:

a. Bill shall embrace only one subject;

b. Three (3) readings on separate days;

c. No amendment in the last reading;

d. Yeas and nays votes entered into the journal (Section 26, Art. VI).

C.14.2

“Art. VI. Section 24. “All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives” (Keyword: APRIL). Note:

This is a typical example of procedural limitation.

C.14.3 Doctrine of Augmentation. Section 25 (5) “No law shall be passed authorizing any transfer of appropriations; however the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the Heads of the Constitutional Commissions, may by law, be authorized to augment any

38

item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

C.15 Presidential Veto and Congressional Override

C.15.1 Section 27, Art. VI.

(1) “Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its journal and proceed to reconsider it. If, after such reconsideration, two thirds (2/3) of all the members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds (2/3) of all the members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas and nays, and the names of the members voting for or against shall be entered in its journal. The President shall communicate his veto of any bill to the House where it originated within thirty (30) days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it.

(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items which he does not object.

C.15.1.1 The bill becomes a law in any of the following cases:

a) When the President approves the same and signs it;

b) When the President does not act on the bill within thirty (30) days after the receipt of the bill, the bill automatically becomes a law;

c) When Congress overrides the President’s veto by 2/3 vote in the House of origin and 2/3 vote to the other House.

d) Laws shall take effect after fifteen (15) days following the completion of their publication in the official gazette or in a newspaper of general circulation, unless the law otherwise provide (Art. 22 NCC, as amended by E.O.

200)

39

Should the President disapprove the bill, he shall return the same, with his objections thereto contained in his veto message, to the House where it originated and which shall enter the objections at large in its journal. The President’s veto is overridden upon a vote of two- thirds of ALL members of the House of origin and the other House. Yeas and nays are entered into the journal of each House.

Note:

What

matters

Journal?

are

required

to

be

entered

on

the

Held: 1) The yeas and nays on the third and final reading of a bill (Art. V, Section 26 (2);

2) The yeas and nays on any question, at the request of one-fifth (1/5) of the members present (Art. VI, Section 16 (4);

3) The yeas and nays upon repassing a bill over the President’s veto (Art. VI, Section 27 (1); and

4) The President’s objection to a bill he had vetoed (Section 27 (1) (Arroyo v. De Venecia, 277 SCRA 268, 298, August 14, 1997)

C.15.1.2

The President is allowed to veto any particular item or items (partial veto) in appropriation, revenue, or tariff bill (keyword: ART) but the veto shall not affect the item or items to which he does not veto (Section 27 (2) , Art. VI).

C.15.1.3 As a general rule, when the President disapproves of a provision in a bill approved by Congress, he should veto the entire bill. There is proscription to veto separate parts of a bill while retaining others. Exception: It is only in the case of appropriation, revenue, and tariff bills that he is authorized to exercise item veto. Exception to exception:

“Doctrine of inappropriate provisions” which says that a provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto EVEN IF IT IS NOT AN APPROPRIATION OR REVENUE ITEM” (Gonzales v. Macaraig, Jr. 191 SCRA 452 (1990). “The proper remedy in a case of a provision that has no relation to any other in the appropriation bill is to consider it an unconstitutional “RIDER” under Section 25

(2).

40

Explaining the doctrine of “inappropriate provision” the Court said:

“As the Constitution is explicit that the provision which Congress can include in an appropriation bill must

“relate

specifically

to

some

particular

appropriation

therein”

and

be

“limited

in

its

operation

to

the

appropriation to which it relates,” it follows that any provision which does not relate to any particular item, or which extends in its operation beyond an item of appropriation, is considered “an inappropriate provision” which can be vetoed separately from an item. Also to be included in the category of “inappropriate provisions are unconstitutional provisions and provisions which are intended to amend other laws, because clearly these kind of laws have no place in an appropriation bill. These are matters of general legislation most appropriately dealt with in separate enactments… (Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994).

The

reason

behind

the

doctrine

of

“inappropriate provisions” is to prevent the legislature from forcing the President to veto an entire appropriation law thereby paralyzing government (Henry v. Edwards,

La., 346 So., 2d, 153 (1977). In the Philippines this situation hardly arise because of Section 25 (7) which provides for the automatic re-appropriation/re-enactment of the General Appropriation Act of the previous year until a new GAA is approved.

C.16. Automatic reappropriation/re-enactment. Section 25 (7) “If, by the end of the fiscal-year, the Congress shall have failed to pass the General Appropriations Bill for the ensuing fiscal year, the General Appropriations law for the preceding fiscal year shall be deemed re- enacted and shall remain in force and effect until the General Appropriations Bill is passed by the Congress.”

C.17. Non-Legislative

C.17.1 Informing Function. “The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on

Written

questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations

any

matter

pertaining

to

their

departments.

41

shall not be limited to written questions, but may cover

matters related thereto.

the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session” (Section 22 Art. VI)

When the security of the State or

D. EXECUTIVE DEPARTMENT

D.1 Privileges, Inhibitions and Disqualifications

D.1.1 Privileges

D.1.1.1 “Section 6. The President shall have an official residence. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. [ No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not receive during their tenure any other emolument from the government or any other source.] [Prohibitions/inhibitions]

D.1.1.2

During his tenure the President is immune from suit, however, he is not prevented from filing a suit (Soliven v. Makasiar 167 SCRA 393). The President is also immune from civil liability (Forbes v. Chuoco Tiaco 16 Phil. 534).

D.1.1.3

After his tenure, the President cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official functions (Estrada v. Desierto G.R. No. 146710-15, March 2, 2001).

D.1.2 Prohibitions/ Inhibitions

D.1.2.1 “No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not receive

the

during

government or any other source.”

their

tenure

any

other

emolument

from

42

D.1.2.2

Section 13. Art. VII. “The President, Vice-President, the members of the cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including Government owned and controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

“The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure appointed as members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, Chairmen or heads of bureaus or offices, including Government-owned or controlled corporations and their subsidiaries”

D.1.3

The Vice-President may be appointed to the Cabinet, without need of confirmation by the Commission on Appointments.

D.1.4

The Secretary of Justice is an ex-oficio (by reason of the office) member of the Judicial and Bar Council (Section 8 Art. VIII).

D.1.5 Executive Order No. 284 allowing Cabinet members to hold two (2) other offices in government was declared by the Supreme Court unconstitutional being a direct violation of Section 13, Art. VII:

“The President, Vice-President, the members of the cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure.”

D.1.6 The reasons for the above cited prohibitions are 1) to avoid conflict of interest and 2) to force the officials to devote full time to their official duties.

D.2. Powers

D.2.1 Executive and administrative powers in general

D.2.1.1 Art. VII Section 1 “The Executive power shall be vested in the President of the Philippines.”

43

D.2.1.2 The Constitution did not define what is meant by ‘executive power’ although Article VII touches on the exercise of certain powers of the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress (Art. VII Secs. 14-23) precisely, in Marcos v. Manglapus 177 SCRA 668 (1989, the Supreme Court summed up the executive power of the President:

“To

the

President,

the

problem

is

one

of

balancing

the general

welfare and

the common

good

against the exercise of rights of certain individuals.

The

power involved is the President’ residual power to protect the general welfare of the people. It is founded on the duty of the President as steward of the people. To paraphrase Theodore Roosevelt, it is only the power of the President but also his duty to do anything not forbidden by the

Constitution or the laws that the needs of the nation demand (Corwin at 153). It is a power borne by the President’s duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President’s duty to take care that the laws are faithfully executed.”

D.2.1.3 Administrative powers of the President can be implied from his executive power as above cited in the case of Marcos v. Manglapus, 177 SCRA 668)

D.2.2 Power of Appointment

Section 16, Article VII. “The President shall nominate and with the consent of the Commission on Appointments, appoint the

1) heads of the Executive Departments,

2) other public ministers and consuls, or

3) officers of the armed forces from the rank of colonel or naval captain,

44

4) and other officers whose appointments are vested in him in this Constitution ( sectoral representatives under Section 7 Art. XVIII; and members of the Judicial and Bar Council under Section 8 (2) Art. VIII).

He shall appoint all other officers of the government whose appointments are not otherwise provided by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

“The President shall have the power to make appointments during the recess of the Congress (ad- interim appointments), whether voluntary or compulsory, but such appointments shall be effective only

1)

until

the

disapproval

by

Appointments or

the

Commission

on

2) until the next adjournment of the Congress.”

D.2.3 A regular appointment is one made by the President while Congress is in session and will take effect after confirmation by the Commission on Appointments. When approved, the appointment shall continue until the end of the term of the appointee or at the pleasure of the President.

D.2.3.1 An ad-interim appointment is one made by the President while Congress is in recess or not in session to meet the exigencies of the service. It takes effect upon acceptance by the appointee but ceases to be valid when disapproved by the Commission on appointments or upon the next adjournment of Congress. Disapproval by adjournment of Congress is “by-passed” through inaction by the Commission on Appointments.

D.2.3.2 When an ad-interim appointment is by-passed for lack of time or failure of the Commission on Appointment to act on it, no CA’s decision yet and the President has free hands to renew such ad-interim appointment (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002).

45

D.2.3.3 The clause “officers of the armed forces from the rank of colonel or naval captain” pertains to the military officers. It does not include the Philippine National Police and the Philippine Coast Guard which is now under the Department of Transportation and Communications (DOTC) (Soriano v. Lista, G.R. No. 153881, March 24, 2003).

D.2.4 Midnight appointments

D.2.4.1

“Section

next

presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”

15

Art.

VII.

Two

months

before

the

D.2.4.1.1 The provision applies only to presidential appointments as there is no law that prohibits local executive officials from making appointments during the last days of their tenure (De Rama v. Court of Appeals G.R. No. 131136 February 28, 2001).

D.2.4.2 The President cannot appoint any person who lost in any election within one year after such election to any office in the Government or any government-owned or controlled corporations or in any of their subsidiaries (Sec. 6 , Art. IX-B). Those appointees are called “political lameduck”.

D.2.5 Power of removal

D.2.5.1 The power to hire carries with it the power to fire. Precisely, the power to appoint carries with it the implied power to remove. But there is proscription on the President to remove officials where the Constitution prescribes certain methods for separation from public service e.g. Chairmen and Commissioners of the Constitutional Commissions who can be removed via impeachment or judges subject to the disciplinary power of the Supreme Court. Removal implies for cause as may be provided by law, and in accordance with the prescribed administrative procedure.

46

D.2.6 Power of control and supervision

D.2.6.1 Section 17, Art. VII. “The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.”

D.2.6.2

Power of control. “The President’s power of control means his power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and substitute his judgment with that of the latter. It is said to be the very heart of the meaning of Chief Executive” (Carpio v. Executive Secretary, 206 SCRA 290

(1992).

In an earlier case, the President’s issuance of an executive order banning fishing by trawl was questioned because the Secretary of Agriculture, and not the President, was the official authorized by Congress to issue rules and regulations to implement the ban on trawl fishing. The Supreme Court ruled that since the Secretary of Agriculture was empowered to regulate or ban fishing by trawl, the President in the exercise of his power of control, can take over from him such authority and issue the executive order to exercise it (Araneta v. Gatmaitan 101 Phil. 238 (1957).

D.2.6.3 Doctrine of Qualified Political Agency – This doctrine recognizes the establishment of a single executive, all executives and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments and assistants and agents of the Chief Executive, and except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive (DENR vs. DENR Region XII Employees, G.R. No. 149724, August 19, 2003)

47

D.2.6.4 Power of supervision. In the absence of a law granting the power of control, the President may have only the power of supervision, which is only overseeing or the power to see that the officials concerned perform their duties, and if they later fail or neglect to fulfil them, to take such action or steps as prescribed by law to make them perform their duties (Mondano v. Silvosa 97 Phil. 143 (1955).

D.2.6.5

D. 3. Military powers

General Supervision over local governments. “The President of the Philippines shall exercise general

supervision over local governments.

respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions” Section 4, Art. X).

Provinces with

D.3.1 Section 18 Art. VII. “The President shall be the Commander-in- Chief of all the armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in

person or in writing to the Congress.

JOINTLY, by a vote of at least a majority of all its members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, voting

“The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without a need of a call.

“The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the

48

privilege of the writ or the extension thereof, and must promulgate its decision therein within thirty days from its filing.

“A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

“The suspension of the privilege of the writ shall apply

or offenses

only

inherent or directly connected with invasion.

to

persons

judicially

charged

for

rebellion

“During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

D.3.1.1 “When the President calls out the armed forces to suppress lawless violence, rebellion or invasion, he necessarily exercises a discretionary power SOLELY vested in his wisdom. The Court cannot overrule the President’s discretion or substitute its own. The only criterion is that “whenever it becomes necessary” (Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000).

D.4. Pardoning power (Executive clemency)

D.4.1. Section 19, Art. VII. “Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons and remit fines and forfeitures, after conviction by final judgment.

“He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress”

D.4.1.1

A “reprieve” postpones the execution of an offense to a

day certain” (People v. Vera 65 Phil. 56, 110 (1937). Stay

of

execution

D.4.1.2

Commutation is a remission of a part of the punishment;

a

substitution of a less penalty for the one originally

imposed (People v. Vera). “The fact that a convict was released after six years and placed under house arrest, which is not a penalty, already leads to the conclusion that the penalty had been shortened” (Drilon v. Court of

49

Appeals, 202 SCRA 378 (1991). A reduction or mitigation of the penalty.

D.4.1.3

Parole

release

from

imprisonment

without

– restoration of full liberty, as parolee is still in custody of the law although not in confinement.

but

D.4.1.4

Amnesty – act of grace, concurred by Congress usually extended to groups of persons who committed political offenses, which puts into oblivion the offense itself.

D.4.1.5 Pardon – an act of grace which exempts the individual on whom it is bestowed from the punishment that the law inflicts for the crime committed.

D.4.1.6 Executive clemency /pardon is not a function of the judiciary; it is an executive function and a manifestation that human institutions are imperfect and that there are infirmities in the administration of justice. Precisely, Article 5 of the Revised Penal Code provides whenever a strict application of the provisions of the law will result in undue harshness to the offender, the duty of the judge is to impose the proper penalty, however harsh it may be, but he is enjoined to recommend to the President the exercise of executive clemency.

D.4.1.7

Constitutional limits on executive clemency

 

1) It cannot be exercised over cases of impeachment;

2) Reprieves, commutations, pardon and remission of fines and forfeitures can be given only AFTER CONVICTION BY FINAL JUDGMENT;

3) The grant of amnesty must be with the concurrence of

the

MAJORITY

OF

ALL

THE

MEMBERS

OF

CONGRESS;

 

4) No pardon, amnesty parole, or suspension of sentence for violation of election laws, rules and regulations shall be granted by the President without the favourable recommendation of the Commission on Elections (Art. IX, C. Section 5).

D.4.1.8

“A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the

50

punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered that no power in a court to force it on him” (United States v. Wilson 7 Pet. At 160-1).

D.4.1.9

Distinctions between pardon and amnesty

1) Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned because the courts TAKE NO NOTICE (judicial) thereof; while amnesty by

the

proclamation

concurrence of Congress , is a public act of which the courts should take JUDICIAL NOTICE;

of

the

Chief

Executive

with

2) Pardon is granted to one AFTER CONVICTION; while amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction;

3

“Pardon looks FORWARD and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment and for that reason it does “NOT WORK the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon and it “in NO CASE EXEMPTS the culprit from payment of the civil indemnity imposed upon him by the sentence” (Art. 36 RPC). While amnesty LOOKS BACKWARD AND ABOLISHES and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty STANDS BEFORE THE LAW precisely as though he had committed no offense” (Barrioquinto v. Fernandez 82 Phil.642 (1949).

D.4.1.10

“A petition for amnesty is in the nature of a plea of confession and avoidance, under which principle the

pleader has to confess the allegations

51

against him

before he can be allowed to set out matters which, if true, would defeat the action” (People v. Llaneta, 86 Phil. 219, 243-244 (1950).

D.4.1.11 “A tax amnesty is a general pardon or intentional overlooking of its authority to impose penalties on persons otherwise guilty of evasion or violation of revenue or tax law, and as such partakes of an absolute forgiveness or waiver by the Government of its right to collect what otherwise would be due it (Republic v. IAC, G.r. 69344 April 26, 1991 quoting CIR v. Botelho Corp. 20 SCRA 487). It is granted before conviction and may be a delegated administrative act.

D.4.1.12 Though pardon erases the penalty and the legal disabilities consequent on the penalty, where, upon a valid conviction, a person was dismissed from office, pardon does not entitle the person reinstatement by right. He may, however, be reappointed (Monsanto v. Factoran, Jr., 170 SCRA 190 (1989).

D.5 Diplomatic power

D.5.1 Section 21 Art. VII. “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.”

D.5.2 Treaty – “International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character take the form of a treaty” (Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351).

Note: Treaty making involves four phases: 1) Negotiation 2) Signature 3) Ratification 4) Exchange. The negotiation is an exclusive affair of the Executive but the fruits of negotiation will not have legal efficacy without the concurrence of the Senate.

D.5.3

embodying

adjustments of details carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements .

Executive

agreements

“International

agreements

D.5.3.1 “The right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has long been CONFIRMED BY LONG USAGE. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and

52

consular relations, most-favoured-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.” (Gonzales v. Hechanova, 9 SCRA 230, 243 (1963). These agreements were made pursuant to act of Congress.

D.5.3.2. How is a treaty terminated?

1) By formal agreement of the parties;

2) By the treaty itself;

3) Termination due to a breach by the other due to “rebus sic stantibus.”

D.5.3.3 The other foreign affairs power of the President are:

1) The power to make treaties;

2) The power to appoint ambassadors;

3) The power to receive ambassadors and other public ministers duly accredited by the Philippines as well as the recall of diplomatic officer as persona non grata.

4)

The power to deport undesirable alien;

 

5)

The

power

to

recognize

governments

and

withdraw

recognition.

 

D.5.3.4 Under international law, an executive agreement is binding as a treaty.

D.6 Art. VII. “The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the General Appropriation Bill, a budget of receipts and expenditures and sources of financing, including receipts from existing and proposed revenue measures. “Congress may not increase the appropriation recommended by the President for the operation of the Government as specified in the budget” (Section 25 (1) Art. VI).

D.7

Delegated powers

D.7.1 Section 23 (2) Art VI. “In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a

53

declared national policy. Unless sooner withdrawn by resolution

of

adjournment thereof.”

next

the

Congress,

such

powers

shall

cease

upon

the

D.7.2 Section 28 (2) Art. VI. “The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.”

D.7.3

Presidential Veto and Congressional Override

D.7.3.1

Section 27, Art. VI.

(1) “Every bill passed by the Congress

shall, before it

becomes a law, be presented to the President.

approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the

House

objections at large in its journal and proceed to reconsider it. If, after such reconsideration, two thirds (2/3) of all the members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two- thirds (2/3) of all the members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas and nays, and the names of the members voting for or against shall be entered in its journal. The President shall communicate his veto of any bill to the House where it originated within thirty (30) days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it.

If he

the

where

it

originated,

which

shall

enter

(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items which he does not object.

D.7.4.

Residual powers. In Marcos v. Manglapus, 177 SCRA 668

the view that

(1989), the Supreme Court said: “we hold

54

although the 1987 Constitution imposes limitations on the exercise of specific power of the President, it maintains intact what is traditionally considered as within the scope of “executive power.” Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.

D.8 Rules on Succession

D.8.1 Section 7 Art. VII. “The President-elect and the Vice-President elect shall assume office at the beginning of their terms. “If the President-elect fails to qualify, the Vice-President-elect shall act as President until the President-elect shall have qualified. “If a President shall not have been chosen, the Vice-President elect shall act as President until a President shall have been chosen and qualified. “If at the beginning of the term of the President, the President- elect shall have died or shall have become permanently disabled, the Vice-President –elect shall become President. “Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives shall act as President until a President or a Vice-President shall have been chosen and qualified. “The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph.”

Section 8, Art. VII. “In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become President to serve the

unexpired term.

removal from office, or 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 Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified.

“The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected

In case of death, permanent disability,

55

and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President.”

D.8.2 Section 4 last sentence Art. VII. “No person who has succeeded as President and has served as such for more than FOUR YEARS shall be qualified for election to the same office at any time.” In the case of President Gloria M. Arroyo, she succeeded President Estrada who served for that four years in office. Precisely, she was able to run as President and ruled the Philippines for more or less nine (9) years.

E. Judicial Department

E.1. Concepts

E.1.1 Judicial power “is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction” (Muskrat v. United States, 219 U.S. 346 (1911).

Judicial review is the Supreme Court’s power to declare a treaty,

international or executive agreement, law, presidential decree, proclamation, order instruction, ordinance, or regulation, unconstitutional (Section 4 (2), Art. VIII) E.1.3 Section 1, Art. VIII. “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

E.1.2

“Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

E.1.3.1 Grave abuse of discretion. “By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent or lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility” (Sinon v. Civil Service Commission, 215 SCRA 410, 416-417

(1992).

56

E.1.3.2 Requisites for the exercise of the power of judicial review:

1)

There

must

be

before

the

court

an

actual

controversy/case

calling

for the exercise of

judicial

power;

Note: This requisite is not at all absolute. Exceptions to procedural rules may be dictated in cases of a) lack of clarity creating a confusion detrimental to the public order i.e. confiscation of license plates, and drivers licenses for traffic violations (Solicitor General v. Metropolitan Authority, G.R. 102782, December 11, 1991); b) when although the dispute is gone but it cries to be resolved not only for the vindication of the outraged right but for the guidance and restraint upon the future (Javier v. COMELEC and Pacificador, G.R. 68379-81, September 22, 1986).

Another exception is on “facial challenge” allowing third party standing and on over breadth doctrine with respect to statutes involving free speech.

2)

The question before it must be ripe for adjudication or that the Governmental act being challenged must have had an adverse effect on the person challenging it (Tan v. Macapagal, 43 SCRA 678 (1972);

3)

The person challenging the act must have “standing” to challenge because he has a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result of its enforcement” (People v. Vera, 65 Phil 58, 89 (1937); Macasiano v. National Housing Authority, 224 SCRA 236 (1993);

4)

“The question of constitutionality must be raised at the

earliest

pleadings, ordinarily it may not be raised at the trial,

be

and

the

opportunity,

in

so

that

if

not

raised

by

it

if not raised

the trial court,

will not

considered on appeal; and

5) “Courts will not touch the issue of constitutionality

it really is unavoidable or is the very lis mota

unless

(Sotto v. COMELEC, 76, Phil. 516, 522 (1946).

57

Note: Liberalization on ‘standing’ was made on the basis of “intergenerational responsibility” and “transcendental importance.”

“Finally, the Court summed up what it saw as the doctrine on the “standing” of taxpayers, voters, concerned citizens and legislators. Taxpayers are allowed to sue when there is illegal disbursement of public funds or when tax measure is assailed. Voters are allowed to question the validity of election laws because of their evident interest in the matter. “Concerned citizens” can be allowed to sue if the questions they raise as of transcendental importance which must be settled such as in the Emergency Powers Cases. And legislators are allowed to sue to question the validity of any official act which they claim may infringe their prerogatives qua legislators” (Bernas, The 1987 Constitution: A Commentary p. 858)

E.2. Operative Fact Doctrine

E.2.1 “Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is null and void. As the new Civil Code puts it: “When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern”. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the law or the Constitution” The above provision of the Civil code reflects the orthodox view that an unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no duties, and affords no protection. This DOCTRINE ADMITS OF QUALIFICATIONS, HOWEVER. As the American Supreme Court stated: “The actual existence of a statute PRIOR to such a determination of constitutionality, is AN OPERATIVE FACT and may have consequences which cannot always be erased by a new judicial declaration x x x. “The growing awareness of the role of the judiciary as the governmental organ which has the final say on whether or not a legislative or executive measure is valid leads to a more appreciative attitude of the EMERGING CONCEPT that a declaration of nullity may have legal consequences which the more orthodox view would

deny. That for a period of time such a statute, treaty, executive order,

be

or

ordinance

was

in

“ACTUAL

EXISTENCE”

appears

to

indisputable.

consider it as “AN OPERATIVE FACT?” (Fernandez v. Cuerva, 21

What is more appropriate and logical then than to

58

SCRA 1095 (1967) de Agbayani v. Philippine National Bank 38 SCRA 429 (1971).

E.3. Moot Questions. “The Court is not empowered to decide moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the result as to the thing in issue in case before it. In other words, when a case is moot, it becomes non-justiceable. An action is considered “moot” when it no longer presents a justiceable controversy because the issues involved have become academic or dead or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties. There is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events” (Atty. Evillo C. Pormento vs. Joseph “Erap” Ejercito Estrada and COMELEC, G.R. No. 191988, August 31,

2010).

E.4. Political Question Doctrine. In Tanada v. Cuenco, L-10520, February 28, 1965, the Supreme Court said that political questions “are those questions, which under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government.”

.

E.5.

Judicial Independence Safeguards

E.5.1 Section 2, Art. VIII. “The Congress shall have the power to define, 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.”

E.5.2 Section 3, Art. VIII. “The judiciary shall enjoy fiscal autonomy. Appropriations for the judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.

E.5.3 Section 11, Art. VIII. “The members of the Supreme Court and Judges of lower courts shall hold office during good behaviour until they reach the age of seventy or become incapacitated to discharge

59

the duties of their office. The Supreme Court en banc shall have the power to 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 in the case and voted thereon.”

Note:

“Q. Must disciplinary cases are heard by the Supreme Court en banc?

A. The text of Section 11 yields the reading that decisions on disciplinary cases must all be arrived at Court en banc. However, People v. Gacott, Jr., G.R. No. 116049, July 13, 1995, ruled, contrary to the inclusive language of the text, that a decision en banc is NEEDED ONLY when the penalty to be imposed is dismissal of a judge, disbarment of a lawyer, suspension either for more than one year, or a fine exceeding 10,000 pesos” (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2006 Edition)

E.5.4

Section 2, Art. XI “The President, the Vice-President, the members

of

the

Supreme

Court,

the

members

of

the

Constitutional

Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.”

Note:

French people call impeachment an act of “political justice” (Bernas, The 1987 Constitution: A Commentary 1996 Ed. P.989)

E.6

May the lower courts exercise the power of judicial review?

The power of judicial review is not an exclusive power of the Supreme Court because Section 5 (2) conferred on the Supreme Court APPELLATE jurisdiction over judgments and decrees of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation is in question. “Plainly the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue” (J.M. Tuason and Co. v. Court of Appeals 3 SCRA 696; Ynot v. IAC, 148 SCRA 659,

1987).

“Considering, however, that a majority vote of the members of the

60

Supreme Court sitting en banc is required to declare a law

must keep in mind “that a becoming

modesty of inferior courts demands conscious realization of the position they occupy in the interrelation and operation of the integrated judicial system of the nation” (People v. Vera, 65 Phil. 56 (1937, cited in Vera v. Arca, 351-361-2 1969).

unconstitutional, lower courts

E.7

Appointments to the Judiciary

E.7.1

Qualifications of Members of the Judiciary

(1)

Section 7, Art. VIII. “No person shall be appointed member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A member of the Supreme Court must be at least forty (40) years of age, and must have been for fifteen (15) years or more a judge of a lower court or engaged in the practice of law in the Philippines.

“(2) The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippines Bar.

“3” A member of the judiciary must be a person of proven competence, integrity, probity, and independence.”

Note: Judges of lower courts need not be natural born. He needs to be a citizen of the Philippines which means that a naturalized Filipino may be appointed to the lower courts; that Congress cannot require that judges of the lower courts be natural-born citizen.

E. 8

Supreme Court

E.8.1 The following cases have to be heard and decided en banc:

1) all cases involving the constitutionality of a treaty, international or executive agreement, or law;

2) cases involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations;

3) cases heard by a division when the required majority in the division is not obtained;

61

4) cases where the Supreme Court modifies or reverses a doctrine or principle of law previously laid down either en banc or in division;

5) administrative cases where the vote is for the dismissal of a judge of a lower court or otherwise to discipline such a one; and,

6) election contests for President and Vice-President” (Section 4, Art. VIII).

All other cases may be decided either en banc or in division as the Rules of Court may provide.

E. 9 Procedural Rule-Making

E.9.1 Section 5 (5), Art. VIII. “Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, the Legal assistance to the

and

inexpensive procedure for the speedy disposition of cases, shall be

uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.”

underprivileged.

Such

rules

shall

provide

a

simplified

E.9.2. Periods for decision

Section 15, Art. VIII. “(1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four (24) months from date of submission for the Supreme Court,

reduced by the Supreme Court twelve (12)

months for all lower collegiate courts, and three (3) for all other lower courts.

and,

unless

(2) “A case or matter shall be deemed submitted for decision or

resolution

memorandum required by the Rules of Court or by the court

itself.

of

or

upon

the

filing

the

last

pleading,

brief,

(3) “Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof

62

attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not bee rendered or issued within said period.

(4) Despite the expiration of the applicable mandatory period, the Court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.”

E.10 Administrative supervision over lower courts

E.10.1 Section 5 (3), “Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six (6) months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice.”

F. INDEPENDENT CONSTITUTIONAL COMMISSIONS

Section 1. Art. IX. “The constitutional commissions which shall be independent are:

1)

Civil Service Commission

2)

Commission on Elections

3)

Commission on Audit

F.1 Institutional Independence and Safeguards

1) Section 2. Art. IX. “No members of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall

active

management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any

its

he

engage

in

the

practice

of

any

profession

or

in

the

franchise

or

privilege

granted

by

the

government,

any

of

subdivisions, agencies, or instrumentalities, including government- owned or controlled corporations or their subsidiaries.”

Note: Practice of profession does not include teaching.

The enumerated prohibitions in section 2 are intended to keep them away from pressures and graft and corruptions.

63

2) Section 3. “The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure.”

(3) Section 4. “The Constitutional Commissions shall appoint their officials and employees in accordance with law.”

(5) Section 5 “The Commission shall enjoy fiscal autonomy. Their

and

approved

regularly released.”

annual

appropriations

shall

be

automatically

(6)

Section 6. “Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules however shall not diminish, increase, or modify substantive rights.”

F.1.1 Decision of the Constitutional Commissions

F.1.1.1 Section 7, Art. IX-A. “Each Commission shall decide by a majority vote of all its members any case or matter brought before it within sixty (60) days from the date of submission for decision or resolution.”

Notes: Any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.

“The Court, when it reviews a decision of the COMELEC, exercises extraordinary jurisdiction; thus the proceeding is limited to issues involving grave abuse of discretion resulting in lack or excess of jurisdiction and does not empower the Court to review the factual findings of the Commission (Aratuc vs. Comelec, 88 SCRA 251). This certiorari is under Rule 65 of the Rules of Court.

With regard to the Civil Service Commission, its resolutions/decision shall be appealable to the Court of Appeals by certiorari (Rule 45, Rules of Court on ground of reversible errors ) within fifteen (15) days from receipt of the copy thereof ( Supreme Court Revised Circular 1-91 as amended by Circular No. 1-95 dated June 1, 1995.

F.2 Powers and functions of each Commission

F.2.1 The Civil Service Commission

64

F.2.1.1. Section 1. (1) The civil service shall be administered by the Civil Service Commission composed of a Chairman and two (2) Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five (35) years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment.”

F.2.1.2 Section 2 (1) “The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the government including government-owned or controlled corporations with original charters.”

Note:

(2)

Corporations

those

corporations created by special law and not through the general corporation law.

with

original

charters

are

“Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy

determining, primarily confidential, or highly technical,

by competitive examination.”

Notes: Appointments in the civil service shall be made only according to merit and fitness to be determined as far

as practicable by competitive examination exceptions

are: policy-determining, primarily confidential and highly technical.

Positions in the civil service are:

competitive.

competitive and non

The non-competitive are: policy-determining, primarily confidential and highly technical.

A policy-determining position is one charged with the duty to formulate a method of action for the government or any of its subdivisions.

only

confidence in the aptitude of the appointee for the duties of the

A primarily

confidential

position

denotes

not

65

office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom of misgivings or betrayals of personal trust on confidential matters of state.

A highly-technical position is one where the occupant

or

possesses

superior degree.

a

technical

skill

or

training

in

the

supreme

Determining whether the position is policy- determining, primarily confidential or highly technical is a JUDICIAL QUESTION (Salazar v. Mathay, 73 SCRA 275, 279 (September 30, 1976); that while the classification made by the executive should be accorded the weight it deserves is NOT DEFINITELY DETERMINATIVE of the nature of the position (De los Santos v. Mallari, 87 Phil. 289, 298 (1950).

(3) “No officer or employee of the civil service shall be removed or suspended except for cause provided by law.”

Note: There is security of tenure for the civil servants. There could be no dismissal without except for cause provided by law. This is a guarantee of both procedural and substantive due process.

(4) “No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign”

(5) “The right to self-organization shall not be denied to government employees.” Note: “The employees of the Social Security System and public school teachers do not have the a constitutional right to strike” (Social Security System v. Court of Appeals, G.R. 85279, July 28, 1989) In Republic v. Court of Appeals, G.R. 87676, December 20, 1989, the Court said that “government employees do not have the right to strike because there is as yet no law permitting them to strike.

(6) Temporary employees of the government shall be given such protection as may be provided by law.”

F.2.3

“Section 3, Art. IX. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human