POLITICAL LAW Revisions cannot be done through Initiative.
(Lambino
(CONSTITUTIONAL LAW 1)
By: Atty. Enrique Dela Cruz
HOW MAY THE CONSTITUTION BE AMENDED OR
REVISED?
ANSWER: By Congress upon a vote of of all its
members acting as Constituent Assembly (ConAss).
ConAss is not subject to judicial review, the manner the
proposals are made is subject to judicial review.
Since ConAss owes their existence to the Constitution,
the courts may determine whether the assembly has
acted in accordance with the Constitution.
HOW MAY THE CONSTITUTION BE AMENDED OR
REVISED?
ANSWER: By Constitutional Convention (ConCon)
NOTE: Congress may call a ConCon.
1. By a vote of 2/3 of all its members; or
2. By a majority vote of all its members, submit
such question to electorate.
If Congress, acting as a ConAss, calls for a ConCon but
does not provide details for the calling of such ConCon,
Congress by exercising its ordinary legislative power
may supply such details but in so doing, the Congress
(as legislature) should not transgress the resolution of
Congress acting as a ConAss.
HOW MAY THE CONSTITUTION BE AMENDED OR
REVISED?
ANSWER: By Peoples Initiative upon a petition of at
least 12% of the total number of registered voters, of
which every legislative district must be represented by
3% of the registered voters therein.
NOTE: The Constitution may be amended not oftener
than every 5 years through initiative.
vs. COMELEC, G.R. No. 174153, October 25, 2006)
HOW DO YOU DETERMINE WHETHER A PROPOSED
CHANGE IS AN AMENDMENT OR A REVISION?
1. QUANTITATIVE TEST, asks whether the
proposed change is so extensive in its
provisions as to change directly the substantial
entirety of the Constitution by the deletion or
alteration of numerous existing provisions. One
examines only the number of provisions
affected and does not consider the degree of the
change.
2. QUALITATIVE TEST, whether the change will
accomplish such far reaching changes in the
nature of our basic governmental plan as to
amount to a revision. (Lambino vs. COMELEC,
G.R. No. 174153, Oct. 25, 2006)
WHAT ARE THE KINDS OF INITIATIVE UNDER THE
INITIATIVE AND REFERENDUM ACT?
1. INITIATIVE ON THE CONSTITUTION refers to
a petition proposing amendments to the
Constitution.
2. INITIATIVE ON STATUTES refers to a petition
to enact a national legislation.
3. INITIATIVE ON LOCAL LEGISLATION refers
to a petition proposing to enact a regional,
provincial, municipal, city, or barangay law,
resolution, or ordinance. (Section 2(a), RA
6735)
HOW CAN THE PEOPLE DIRECTLY ENACT A LAW
PROHIBITING PORK BARREL?
Section 2(b) of RA 6735 provides for:
1. INDIRECT INITIATIVE, exercise of initiative by
the people through a proposition sent to
Congress or the local legislative body for action.
2. DIRECT INITIATIVE, the people themselves
filed the petition with the COMELEC and not
with Congress.
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CAN THE CONSTITUTION BE AMENDED OR REVISED
DIRECTLY BY THE PEOPLE THROUGH INITIATIVE
UNDER RA 6735?
NO. RA 6735 applies only to initiative and referendum
on national and local laws. Under RA 6735, initiative on
the Constitution is confined only to proposals to
amend. The proposals will then have to be submitted to
Congress for enactment. (Defensor-Santiago vs.
COMELEC G.R. No. 127325, March 19, 1997)
CAN RA 6735 BE USED TO DIRECTLY PROPOSE
AMENDMENTS TO THE CONSTITUTION?
NO. The people are not accorded the power to directly
propose, enact, approve, or reject, in whole or in part,
the Constitution through the system of initiative. They
can only do so with respect to laws, ordinances, or
resolutions.
Second, the Act does not provide for the contents of a
petition for initiative on the Constitution. Also, while
the law provides subtitles for National Initiative and
Referendum and for Local Initiative and Referendum,
no subtitle is provided for initiative on the Constitution.
This means that the main thrust of the law is initiative
and referendum on national and local laws. (Defensor-
Santiago, et. al. vs. COMELEC, et. al. G.R. No. 127235,
March 19, 1997)
CAN A PROVISION OF LAW, INITIALLY VALID,
BECOME SUBSEQUENTLY UNCONSTITUTIONAL, ON
THE GROUND THAT ITS CONTINUED OPERATION
WOULD VIOLATE THE EQUAL PROTECTION OF THE
LAW (THEORY OF RELATIVE
UNCONSTITUTIONALITY)?
YES. The constitutionality of a statute cannot in every
instance be determined by a mere comparison of its
provisions with applicable provisions of the
Constitution, since the statute may be constitutionally
valid as applies to one set of facts and invalid in its
application to another.
A statute valid at one time may become void at another
time because of altered circumstances. Thus, if a statute
in its practical operation becomes arbitrary or
confiscatory, its validity, even though affirmed by a
former adjudication, is open to inquiry and
investigation in the light of changed conditions.
(Central Bank Employees Association vs. BSP, G.R. No.
148208, December 15, 2004)
STATE THE VARIOUS MODES OF AND STEPS IN
REVISING OR AMENDING THE PHILIPPINE
CONSTITUTION (1997 BAR QUESTION)
There are three modes of amending the Constitution.
1. Under Section 1, Article XVIII of the
Constitution, Congress may by vote of all its
Members convene itself into a CONSTITUENT
ASSEMBLY and propose any amendment to or
revision of the Constitution.
2. Under the same provision, a
CONSTITUTIONAL CONVENTION may
propose any amendment to or revision of the
Constitution. According to Section 3, Article
XVII of the Constitution, Congress may by a 2/3
vote of all its Members call a constitutional
convention or by a majority vote of all its
Members submit the question of calling such a
convention to the electorate.
3. Under Section 2, Article XVII of the
Constitution, the people may directly propose
amendments to the Constitution through
initiative upon a petition of at least 12% of the
total number of registered voters of which
every legislative district must be represented
by at least 3% of the registered voters therein.
According to Section 4, Article XVII of the
Constitution to be valid any amendment to or
revision of the Constitution must be ratified by
a majority of the votes cast in a plebiscite.
ANY OF THE FOLLOWING MAY PROPOSE
AMENDMENT TO THE CONSTITUTION EXCEPT:
(2012 BAR QUESTION)
A. A constitutional convention called 2/3 vote of
all its members of Congress.
B. A petition representing 12% of the nations
registered voter wherein each legislative
district is represented by 3% of its registered
voters.
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 C. vote of all the members of Congress.
D. A petition representing 12% of the nations
registered voter wherein each legislative
district is represented by 5% of its
registered voters.
AN AMENDMENT TO OR A REVISION OF THE
PRESENT CONSTITUTION MAYBE PROPOSED BY A
CONSTITUTIONAL CONVENTION OR BY THE
CONGRESS UPON A VOTE OF OF ALL ITS
MEMBERS. IS THERE A THIRD WAY OF PROPOSING
REVISIONS OF OR AMENDMENTS OT THE
CONSTITUTION? IF SO, HOW? (2004 BAR
QUESTION)
There is no third way of proposing revisions to the
Constitution.
However, the people through initiative upon petition of
at least 12% of the total number of registered voters, of
which every legislative district must be represented by
at least 3% of the registered voters in it, may directly
propose amendments to the Constitution.
This right is not operative without an implementing
law. (Section 2, Article XVI of the 1987 Constitution)
AN AMENDMENT TO THE CONSTITUTION SHALL BE
VALID UPON A VOTE OF OF ALL THE MEMBERS
OF THE CONGRESS. TRUE OR FALSE?
The statement is FALSE. First, an amendment proposed
by Congress must be approved by at least vote of the
members of the Senate and of the House of
Representatives voting separately.
It is inherent in a bicameral legislature for the two
houses to vote separately. (II Record of the
Constitutional Commission 493)
Second, the amendment shall be valid only when
ratified by a majority of the votes cast in a plebiscite.
(Constitution, Article XVII, Section 4)
WHICH OF THE FOLLOWING STATEMENTS IS
CORRECT?
A. All provisions in the Constitution are
deemed self-executing unless otherwise
provided.
B. All provisions in the Constitution are not self-
executory.
C. Only the provisions on the Bill of Rights are self-
executing.
D. The Declaration on State Principles and Policies
requires enabling legislation.
WHAT ARE SELF-EXECUTING AND NON-SELF
EXECUTING PROVISIONS OF THE CONSTITUTION?
A provision which lays down a general principle, such
as those found in Article II of the 1987 Constitution is
usually not self-executing.
But a provision which is complete in itself and becomes
operative without the aid of supplementary or enabling
legislation or that which supplies sufficient rule by
means of which the right it grants may be enjoyed or
protected, is self-executing.
Thus, a constitutional provision is self-executing if the
nature and extent of the right conferred and the
liability imposed are fixed by the Constitution itself, so
that they can be determined by an examination, and
construction of its terms, and there is no language
indicating that the subject is referred to the legislature
for action. (Manila Prince Hotel vs. GSIS, 267 SCRA 408)
ARE PROVISIONS OF THE CONSTITUTION SELF-
EXECUTING OR NON-SELF EXECUTING? WHY?
Unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate the
presumption now is that all provisions are self-
executing.
If the constitutional provisions are treated as requiring
legislation instead of self-executing, the legislature
would have the power to ignore and practically nullify
the mandate of the fundamental law. This can be
cataclysmic. (Manila Prince Hotel vs. GSIS, 267 SCRA
408 1997)
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 It converts the huge SCS into an internal waterway or
lake of China, similar to a gigantic Laguna de Bay.

NATIONAL TERRITORY
WHAT COMPRISES THE PHILIPPINE TERRITORY?

The National Territory comprises the Philippine

Archipelago, with all the islands and waters embraced
therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting
of its terrestrial, fluvial, and aerial domains, including
its territorial sea, the seabed, the subsoil, the insular
shelves 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. (Article I, 1987 Constitution)

PROTECTING PHILIPPINE TERRITORY

Our 1987 Constitution mandates: The State shall

protect the nations marine wealth in its x x x exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.

To fulfill the States obligation to protect the nations

marine wealth in its exclusive economic zone, the
Philippines has filed an arbitration case against China
in accordance with the 1982 United Nations
Convention on the Law of the Sea (UNCLOS).
At stake in the arbitration before an UNCLOS Annex VII
tribunal is whether the Philippines will keep or lose
80% of tis exclusive economic zone and 100% of its
extended continental shelf in the West Philippines Sea.
ORIGIN OF THE CONFLICT
On May 7, 2009, China submitted a note verbale to the
UN and claimed indisputable sovereignty over all the
islands in the West Philippine Sea (WPS) and their
adjacent waters encompassed by its nine-dash line
map. This map covers the entire South China Sea (SCS)
bordering the shorelines of Vietnam, Malaysia, Brunei,
Taiwan, and the Philippines.
ORIGIN OF THE CONFLICT: China seized Subi Reef
in 1988 *insert picture*
China Seized Mischief (Panganiban) Reef in 1995
In 1995, china seized Mischief Reef from the
Philippines. Mischief Reef located 125 NM from
Palawan, is a Low-Tide Elevation (LTE) within the
Philippines EEZ.
As an LTE beyond the territorial sea of any state, it is a
part of the submerged continental shelf of the adjacent
coastal state, which is the Philippines. Under UNCLOS,
the Philippines can exploit its natural resources or
erect structures on it.
ORIGIN OF CONFLICT: China claimed Reed Bank in
2010 *insert picture*
PHILIPPINE CLAIM

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What is at stake in the West Philippine Sea dispute are
the following:
A. 80% of the Philippines exclusive economic
zone (EEZ), comprising 381,000 square
kilometers of maritime space; and
B. 100% of the Philippines extended continental
shelf (ECS), estimated at over 150,000 square
kilometers of maritime space, aggregating a
huge maritime area of over 531,000 square
kilometers, larger than the total land area of the
Philippines of 300,000 square kilometers
either the Philippines keeps this huge maritime
space or loses it to China.
THE UNCLOS
UNCLOS, ratified by 165 states comprising 85% of the
entire membership of the United Nations, is the
primary international law governing the use of the
oceans and seas of our planet.
Specifically, UNCLOS governs the use of the following
maritime zones:
a. Internal Waters or Archipelagic Waters, the
landward waters adjacent to the territorial sea;
b. Territorial Sea, an area of 12 nautical miles
from the baselines along the coast;
c. Exclusive Economic Zone (EEZ), an area of 200
nautical miles from the baselines;
d. Extended Continental Shelf (ECS), an additional
area of 150 nautical miles from the outer limits
of the EEZ; and
e. The High Seas area, which is the maritime zone
beyond the ECS. The high seas belongs to all
states, whether coastal or land-locked.
IMPORTANT DEFINITIONS
EXCLUSIVE ECONOMIC ZONE is an area beyond and
adjacent to the territorial sea, which shall not extend
beyond 200 nautical miles from the baseline from
which the territorial sea is measured.
TERRITORIAL SEA is 12 nautical miles from the
baseline.
CONTIGUOUS ZONE is 24 nautical miles from the
baseline.
CONTINENTAL SHELF is 150 nautical miles from the
baseline.
THE UNCLOS
UNCLOS governs maritime disputes on overlapping
maritime zones like overlapping territorial seas, EEZs
and ECSs.
UNCLOS does not govern territorial disputes which are
sovereignty or ownership issues over land territory
like islands or rocks above water at high tide.
Rocks that are below water, or submerged, at high tide
are not considered land and thus disputes over such
rocks are governed by UNCLOS.
UNCLOS provides for a compulsory dispute settlement
mechanism over maritime disputes among its member
states, including disputes involving the interpretation
or application of the provisions of UNCLOS.
DISPUTES GOVERNED BY THE UNCLOS
China, the Philippines and all the other disputant states
in the South China Sea are parties to UNCLOS, and are
thus bound by the UNCLOS compulsory dispute
settlement mechanism.
Maritime disputes are governed primarily by UNCLOS,
while territorial disputes are governed by the general
rules and principles of international and within the
consensual jurisdiction of the International Court of
Justice.
MARITIME DISPUTES VS. TERRITORIAL DISPUTES
Maritime disputes are subject to compulsory
arbitration because under UNCLOS, a party state has
given its advance consent to compulsory arbitration,
unless a State has opted out of compulsory arbitration
involving certain specified disputes.
In contrast, territorial disputes can be subject to
arbitration only with the consent of each disputant
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state to every arbitration, unless such consent has been
given in advance in a treaty.
There is no such treaty between the Philippines and
China involving compulsory arbitration of territorial
disputes. The Philippines arbitration case against
China is solely a maritime dispute and does not involve
any territorial dispute.
WHAT IS THE NATURE AND PURPOSE OF THE
ARBITRATION CASE FILED BY THE PHILIPPINES
AGAINST CHINA?
The Philippines asked the tribunal if Chinas 9-dashed
lines can negate the Philippines EEZ as guaranteed
under UNCLOS.
The Philippines also asked the tribunal if certain rocks
above water at high tide, like Scarborough Shoal,
generate a 200 nautical miles EEZ or only a 12 nautical
miles territorial sea.
The Philippines further asked the tribunal if China can
appropriate low-tide elevations (LTEs), like Mischief
Reef and Subi Reef, within the Philippines EEZ.
WHAT IS THE NATURE AND PURPOSE OF THE
ARBITRATION CASE FILED BY THE PHILIPPINES
AGAINST CHINA?
These disputes only involve the interpretation or
application of the provisions of UNCLOS.
The Philippines is not asking the tribunal to delimit by
nautical measurements overlapping EEZs between
China and the Philippines.
The Philippines is also not asking the tribunal what
country has sovereignty over an island, or rock above
water at high tide, in the West Philippine Sea.
IMPORTANT QUESTIONS
1. Why did the Philippines file an arbitral case
against China?
2. What are the key points in the arbitral award in
favor of the Philippines?
3. How can its judgment be enforced?
WHAT IS THE BASIS OF THE PHILIPPINES CLAIM?
Low-Tide Elevations or LTEs are rocks above water at
low tide but below water, or submerged, at high tide.
LTEs are not land but part of the submerged
continental shelf.
Under UNCLOS, LTEs beyond the 12 nautical miles
territorial sea are not capable of appropriation by any
state.
As part of the submerged continental shelf, LTEs
beyond the territorial sea but within the EEZ of a
coastal state are subject to the sovereign rights of such
coastal state.
Thus, LTEs in the Spratlys within the 200 NM EEZ of the
Philippines, like Mischief Reef and Subi Reef, are
subject to the sovereign rights of the Philippines.
Under UNCLOS, only the Philippines can construct
structures on LTEs within its EEZ.
WHY DID THE PHILIPPINES FILE AN ARBITRAL
CASE AGAINST CHINA?
The Philippines is the only country to have resorted to
compulsory arbitration (under Article 287 and Annex
VII of the UNCLOS) against China with its case resting
on at least 5 key arguments.
Primarily, the Philippines is questioning Chinas claim
to historical rights over the South China Sea based on
a range of dubious claims and ancient maps.
These, in turn, constitute the foundations of its
notorious 9-dashed line claims.
THE CASE OF THE PHILIPPINES
The Philippines has also called on the Tribunal to
clarify (under Article 12 of the UNCLOS) the nature of
the disputed features in the South China Sea.
While Beijing tends to characterize most of these
features as islands, which can generate their own 200
nautical miles EEZ and continental shelves, Manila
instead claims that at most they are only rocks and
high-tide elevations, which can generate a maximum of
12 nautical miles territorial seas.
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WHAT IS THE PHILIPPINES CLAIMING?
The Philippines is asking the tribunal if Chinas 9-
dashed lines can negate the Philippines EEZ as
guaranteed under UNCLOS.
The Philippines is also asking the tribunal if certain
rocks above water at high tide, like Scarborough Shoal,
generate a 200 nautical miles EEZ or only a 12 nautical
miles territorial sea.
The Philippines is further asking the tribunal if China
can appropriate low-tide elevations (LTEs), like
Mischief Reef and Subi Reef, within the Philippines
EEZ.
These disputes involve the interpretation or
application of the provisions of UNCLOS.
The Philippines is not asking the tribunal to delimit by
nautical measurements overlapping EEZs between
China and the Philippines.
WHAT ARE THE KEY POINTS IN THE ARBITRAL
AWARD?
1. The so-called 9-dash line is invalid: The
tribunal concluded that there was no legal basis
for China to claim historic rights to resources
within the sea areas falling within the 9-dash
line.
Under UNCLOS, every coastal state is entitled to a 200
NM EEZ, subject to boundary delimitation in case of
overlapping EEZs with other coastal states.
China claims almost 90% of the South China Sea under
its so-called 9-dashed line map, which overlaps 80% of
the Philippines EEZ in the West Philippine Sea.
The tribunal declared this 9-dash line as a clear
violation of the UNCLOS. This is very important.
If Chinas claim was upheld, the Philippines would have
lost 80% of its EEZ in the West Philippine Sea.
WHAT ARE THE KEY POINTS IN THE ARBITRAL
AWARD?
2. Reclaimed islands have no exclusive economic
zone: The Tribunal noted that the current
presence of official personnel on many of the
features is dependent on outside support and
not reflective of the capacity of the features
(and) that none of the Spratly Islands is
capable of generating extended maritime
zones.
The Tribunal found that it could without delimiting
a boundary declare that certain sea areas are within
the exclusive economic zone of the Philippines, because
those areas are not overlapped by any possible
entitlement of China.
QUESTION: Recent land reclamation by China has
dramatically transformed seven disputed maritime
features in the Spratly Islands at the West Philippine
Sea.
For example, in 1995 Subi Reef was completely
submerged at high tide. Today, there are 3.9 million
square meters of reclaimed land above water at high
tide on Subi Reef, and it is home to a pair of wooden
barracks, communications array, and helipad. There
are similarly stark changes at each of the other reefs.
Will Chinas reclamation activities entitle it to claim
maritime rights over its newly created territories? Is
reclamation a valid mode of acquiring territory?
Explain.
ANSWER: (According to the Tribunal Award): NO.
Artificial islands do not generate maritime
entitlements.
According to UNCLOS, an island is: a naturally formed
area of land, surrounded by water, which is above
water at high tide. Reclamation is obviously not a
mode of acquiring territory under international law
because reclaimed land cannot be considered a
naturally formed area of land.
The reefs reclaimed by China are considered as low tide
elevations. The UNCLOS defines these maritime
features as landmass above water only at low tide.
Outside an existing territorial sea it is not entitled to a
separate maritime zone. It is unable to sustain human
habituation or economic life on its own.
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It is therefore NOT entitled to a territorial sea and
contiguous zone or other maritime rights.
WHAT ARE THE KEY POINTS IN THE ARBITRAL
AWARD?
3. China has behaved unlawfully: China had
violated the Philippines sovereign rights in its
exclusive economic zone. The Tribunal further
held that Chinese law-enforcement vessels had
unlawfully created a serious risk of collision
when they physically obstructed Philippine
vessels.
4. Mischief Reef and Second Thomas Shoal are
part of the exclusive economic zone and
continental shelf of the Philippines.
The Tribunal ruled that all constructed infrastructure
in the reef and shoal should now be turned over to the
Philippines.
WHAT ARE THE KEY POINTS IN THE ARBITRAL
AWARD?
5. Chinas non-participation will not affect the
jurisdiction of the tribunal.
Article 9 of the Annex VII UNCLOS, default of
appearance and Article 25 of the Rule of Procedure of
the Arbitral Tribunal both state that the non-
appearance of one party will not constitute a bar to the
proceedings and at the same time require the tribunal
to satisfy itself that it has jurisdiction and that claim is
well-founded in fact and in law.
The Tribunal ruled that Chinas refusal to appear does
not negate the consent that it has given to the
compulsory jurisdiction of the arbitral tribunal when it
signed the UNCLOS.
6. Beijing has damaged the environment: Chinas
large-scale land reclamation has caused severe
harm to the coral reef environment and
violated its obligation to preserve and protect
fragile ecosystems.
WHAT ARE THE KEY POINTS IN THE ARBITRAL
AWARD?
7. Island building should have stopped during the
dispute process: The panel said it had no
jurisdiction over the military standoff at Second
Thomas Shoal were Chinese and Philippine
military and law enforcement vessels are
locked in confrontation.
However, Chinas recent large-scale reclamation and
construction of artificial islands was incompatible with
the obligations on a state during dispute resolution
proceedings, insofar as China has destroyed evidence
of the natural condition of features of the South China
Sea that formed part of the Parties dispute.
WHAT IS THE PHILIPPINES RESPONSE?
The Philippines response is to assert its control and
ownership of the disputed islands by exercising
effective occupation thereof.
Since the Philippines does not have enough funds to
reclaim and build artificial islands and no naval power
to take-over any habitable island we decided to
maroon BSP Sierra Madre in the Second Thomas Shoal
(Scarborough).
This now serves as temporary headquarters to several
naval personnel who are currently occupying a portion
of the disputed reefs.
HOW CAN THE JUDGMENT BE ENFORCED?
The UNCLOS dispute settlement system does not
contain an enforcement mechanism comparable to that
of the ICJ with the Security Council, at least in theory.
This means that should China refuse to comply with a
decision perceived to be unfavorable to its interests, it
is unlikely that there can be any legal sanctions against
such non-compliance.
The reaction of non-appearing States in the aftermath
of an advance decision has been varied.
Despite affirming its rejection to the judgment of the
Court, some non-appearing parties have eventually
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taken courses of action that were in compliance with
the final award.
HOW WERE PREVIOUS JUDGMENT ENFORCED?
For example, in the Artic Sunrise case, Russia
announced that it would not comply with the
provisional measure prescribed by ITLOS. However,
nearly half a year after the provisional measure was
handed down, it did release the activists and the ship,
albeit Moscow insisted pursuant to a domestic
decision and not the ITLOS order.
In the Nicaragua case, the US persistently defied the
judgment of the ICJ and refused to enter into any
negotiation with Nicaragua on compensation.
Nicaragua attempted to enforce the judgment through
various mechanisms including recourse to the Security
Council and the General Assembly, until the US
relented.
STATE IMMUNITY
IS THE DOCTRINE OF STATE IMMUNITY
APPLICABLE TO GOVERNMENT OFFICIALS OR
EMPLOYEES?
YES. While the doctrine appears to prohibit only suits
against the state without its consent, it is also
applicable to complaints filed against officials of the
state for acts allegedly performed by them in the
discharge of their duties.
The rule is that if the judgment against such officials
will require the state itself to perform an affirmative act
to satisfy the same, such as the appropriation of the
amount needed to pay the damages awarded against
them, the suit must be regarded as against the state
itself although it has not been formally impleaded.
(Garcia vs. Chief of Staff, 16 SCRA 120)
In such a situation, the state may move to dismiss the
complaint on the ground that it has been filed without
its consent.
NO IMMUNITY
The rule does not apply where the public official is
charged in his official capacity for acts that are unlawful
and injurious to the rights of others.
Public officials are not exempt, in their personal
capacity, from liability arising from acts committed in
bad faith.
Neither does it apply where the public official is clearly
being sued not in his official capacity but in his personal
capacity, although the acts complained of may have
been committed while he occupied a public position.
(Amado Lansang vs. CA, G.R. No. 102667 February 23,
2000)
WHAT ARE THE LIMITS ON THE DOCTRINE OF
STATE IMMUNITY?
Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against
the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of
his rights, is not a suit against the State.
In the same tenor, an action or suit against a State
officer or the director of a State department on the
ground that, while claiming to act for the State, he
violates or invaded the personal and property rights of
the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not
a suit against the State.
The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for
perpetrating an injustice. (Shauff vs. CA, G.R. No. 90314,
November 27, 1990, 191 SCRA 713)
WHAT ARE THE LIMITS ON THE DOCTRINE OF
STATE IMMUNITY?
The doctrine of immunity from suit will not apply and
may not be invoked where the public official is being
sued in his private and personal capacity as an ordinary
citizen.
The cloak of protection afforded the officers and agents
of the government are removed the moment they are
sued in their individual capacity.
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This situation usually arises where the public official
acts without authority or in excess of the powers vested
in him.
It is a well-settled principle of law that a public official
may be liable in his personal private capacity for
whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his
authority or jurisdiction. (Shauff vs. CA, G.R. No. 90314,
November 27, 1990, 191 SCRA 713)
WHAT ARE THE LIMITS ON THE DOCTRINE OF
STATE IMMUNITY?
The doctrine of immunity from suit will not apply and
may not be invoked where the public official is being
sued in his private and personal capacity as an ordinary
citizen.
The cloak of protection afforded the officers and agents
of the government are removed the moment they are
sued in their individual capacity. This situation usually
arises where the public official acts without authority
or in excess of the powers vested in him.
It is a well-settled principle of law that a public official
may be liable in his personal private capacity for
whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his
authority or jurisdiction. (Shauff vs. CA, G.R. No. 90314,
November 27, 1990, 191 SCRA 713)
JEFFREY LIANG (HUEFENG) VS. PEOPLE (2001)
Jeffrey was a Chinese national who was employed as an
economist by the Asian Development Bank (ADB). He
uttered defamatory words to Joyce Cabal, a member of
the clerical staff of ADB. He was sued for grave oral
defamation. His defense is diplomatic immunity
because he is an employee of the ADB. Is he correct?
The Supreme Court ruled, in essence, that the immunity
granted to officers and staff of the ADB is not absolute.
It is limited to acts performed in an official capacity.
Furthermore, the SC held that the immunity cannot
cover the commission of a crime such as slander or oral
defamation in the name of official duty.
Officers and staff of the Bank, including experts and
consultants performing missions for the Bank, shall
enjoy the following privileges and immunities;
a) Immunity from legal process with respect to
acts performed by them in their official capacity
except when the Bank waives the immunity.
QUESTION: The Republic of the Philippines, through
the Department of Public Works and Highways
(DPWH), constructed a new highway linking Metro
Manila and Quezon province, and which major
thoroughfare traversed the land owned by Mang
Pandoy.
The government neither filed any expropriation
proceedings nor paid any compensation to Mang
Pandoy for the land thus taken and used as a public
road. Mang Pandoy filed as suit against the government
to compel payment for the value of his land. The DPWH
filed a motion to dismiss the case on the ground that the
State is immune from suit. Mang Pandoy filed an
opposition. Resolve the motion.
ANSWER: The motion to dismiss should be denied. As
held in Secretary of the DPWH vs. Sps. Tecson (G.R. No.
179334, April 21, 2015), when the government
expropriates private property without paying
compensation, it is deemed to have waived its
immunity from suit.
Otherwise, the constitutional guarantee that private
property shall not be taken for public use without
payment of just compensation will be rendered
nugatory.
QUESTION: May prescription and laches be used to
defeat an action for just compensation which was filed
50 years after the date of taking?
ANSWER: NO. Laches is principally a doctrine of equity
which is applied to avoid recognizing a right when to
do so would results in a clearly inequitable situation or
in an injustice.
This doctrine finds no application in this case, since
both equity and the law direct that a property owner
should be compensated if his property is taken for
public use. Neither shall prescription apply because of
| 10
the long-standing rule, that where private property is
taken by the Government for public use without first
acquiring title thereto either through expropriation or
negotiated sale, the owners action to recover the land
or the value thereof does not prescribe. (Secretary of
the DPWH vs. Sps. Tecson, G.R. No. 179334, April 21,
2015)
QUESTION: The USS Guardian got grounded at the
TRNP. The US respondents were sued in their official
capacity as commanding officers of the US Navy who
had control and supervision over the USS Guardian and
its crew. Will the suit prosper?
ANSWER: The alleged act or omission resulting in the
unfortunate grounding of the USS Guardian on the
TRNP was committed while they were performing
official military duties.
Considering that the satisfaction of a judgment against
said officials will require remedial actions and
appropriation of funds by the US government, the suit
is deemed to be one against the US itself.
The principle of State immunity therefore bars the
exercise of jurisdiction by this Court over the persons
of the respondents. (Arigo vs. Swift, 735 SCRA 102,
2014)
QUESTION: Municipality of Jose Panganiban,
Camarines Norte donated a 1,200 square meters to
DOTC to implement the Regional Telecommunications
Development Project.
The Municipality erroneously included portion of the
property owned by Spouses Abecina in the donation.
Pursuant to the Financial Lease Agreement with DOTC,
DIGITEL constructed telephone exchange on the
property.
Spouses Abecina discovered it and required Digitel to
vacate and pay damages. Due to non-compliance with
the demands, the Spouses Abecina sued DOTC and
Digitel. DOTC claimed immunity from suit.
Spouses Abecina argued that state immunity cannot be
invoked to perpetrate and injustice against its citizens.
Is the DOTC correct?
ANSWER: NO. The doctrine of state immunity cannot
serve as an instrument for perpetrating an injustice to
a citizen.
Under the law, eminent domain should be exercised
through expropriation proceedings in court. Whenever
private property is taken for public use, it becomes the
ministerial duty of the concerned office or agency to
initiate expropriation proceedings.
By necessary implication, the filing of a complaint for
expropriation is a waiver of State immunity. Thus,
entry and taking of a property is an implied waiver.
DOTC is not a builder in bad faith. While the DOTC later
realized its error and admitted its encroachment over
the respondents property, there is no evidence that it
acted maliciously or in bad faith when the construction
was done.
Article 527 of the Civil Code presumes good faith.
Therefore, the forfeiture of the improvements in favor
of the respondent spouses is unwarranted. (DOTC vs.
Spouses Abecina, G.R. No. 2106484, june 29, 2016)
HOLY SEE VS. JUDGE ROSARIO
The Catholic Church entered into a contract with
Starlight Realty for the sale of the vacation house of the
papal nuncio. After receiving earnest money, the
church sold the same property to another buyer.
Aggrieved, Starlight Realty sued the church for breach.
Summons was then issued against the Holy See and the
Pope. The DFA certified that the Holy See (Vatican) os a
State and enjoys state immunity from suit.
IS THE VATICAN A STATE?
NO. Under the four elements of a State (people,
territory, sovereignty, government).
YES. Under the Lateran Treaty of 1929.
Factual determination by the DFA is binding upon the
courts. A State, though immune, may still be sued for
acts jure gestionis. Here, the sale of the vacation house
of the papal nuncio is an act jure imperii.
| 11
 GENERAL PRINCIPLES AND STATE
POLICIES
FOREIGN POLICY
The State shall pursue and independent foreign policy.
In its relations with other states the paramount
consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self-
determination. (Article II, Sec. 7 of the 1987
Constitution)
DOCTRINE OF INCORPORATION
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, cooperation, and amity with all
nations. (Article II, Sec. 2 of the 1987 Constitution)
ECONOMIC NATIONALISM
The State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos.
(Article II Sec. 19 of the 1987 Constitution)
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
(Article XII Sec. 10 of the 1987 Constitution)
MANILA HOTEL VS. GSIS
In the bidding for Manila Hotel, the highest bidder was
a Malaysian firm. The losing Filipino bidder sought to
match the bid, arguing that it must be preferred. The
GSIS denied the matching bid on the ground that such a
policy makes bidding a ridiculous sham, where no
Filipino can lose and where no foreigner can win.
WAS GSIS CORRECT?
NO. The Supreme Court ruled:
Where a foreign firm submits the highest bid, there is
no question that the Filipino will have to be allowed to
match the bid of the foreign entity and if the Filipino
matches the bid of a foreign firm the award should go
to the Filipino. It must be so if we are to give life and
meaning to the Filipino First Policy provision of the
1987 Constitution.
WHAT IS MEANT BY PREFERENCE?
The Supreme Court ruled:
It means just that qualified Filipinos shall be
preferred. The Constitutional preference should give
the qualified Filipino an opportunity to match or equal
the higher bid of the non-Filipino bidder if the
preference of the qualified Filipino bidder is to be
significant at all.
ARICTLE II, SECTION 3 OF THE 1987
CONSTITUTION EXPRESSES IN PART THAT THE
ARMED FORCES OF THE PHILIPPINES IS THE
PROTECTOR OF THE PEOPLE AND OF THE STATE.
DESCRIBE BRIEFY WHAT THIS PROVISION MEANS.
IS THE PHILIPPINEN ATIONAL POLICE COVERED BY
THE SAME MANDATE?
It means that the Armed Forces of the Philippines
should not serve the interest of the President but of the
people and should not commit abuses against the
people.
This provision is specifically addressed to the armed
Forces of the Philippines and not to the Philippine
National Police because the latter is separate and
distinct from the former. (Record of the Constitutional
Commission Vol. V., p. 296; Manalo vs. Sistoza 312
SCRA 239, 1999)
CAN A PERSON AVOID THE RENDITIONOF
MILITARY SERVICES TO DEFEND THE STATE?
NO. One cannot avoid compulsory military service by
invoking ones religious convictions or by saying that
he has a sick father and several brothers and sisters to
support. (People vs. Zosa and People vs. Lagaman, G.R.
No. l-45892-93, July 13, 1938)
WHICH OF THE FOLLOWING STATEMENTS IS
WRONG?
A. A law which mandates the teaching of sex
education in the primary and secondary
levels of school is unconstitutional.
| 12
 B. A law prohibiting the use of public funds for the
purchase of artificial contraceptives is
constitutional.
C. A law providing for divorce in the Philippines is
constitutional.
D. The use of centennial prayer in courts before
the commencement of hearings is
constitutional.
QUESTION: A law on federalism was passed dividing
the Philippines into 3 regions (Luzon, Visayas, and
Mindanao), each constituting and independent state
except on matters of foreign relations, national defense
and national taxation, which are vested in a Federal
government. Is the law valid? Explain.
ANSWER: Federalism cannot be established through a
mere law. It requires a revision of the Constitution. The
Federalism law dividing the Philippines into 3 regions,
each constituting and independent state and vesting in
a central federal government matters of foreign
relations, national defense, and national taxation is
unconstitutional.
First, it violates Article 1 which guarantees the integrity
of the national territory of the Philippines because it
divided the Philippines into 3 states.
Second, it violates Section 1, Article II of the 1987
Constitution which provides for the establishment of
democratic and republic States by replacing it with 3
states organized as a confederation.
Third, it violates Section 22, Article II of the
Constitution which while recognizing and promoting
the rights of indigenous cultural communities provides
for national unity and development.
Fourth, it violates Section 15, Article X of the
Constitution which provides for autonomous regions
only in Muslim Mindanao and in the Cordilleras within
the framework of national sovereignty as well as
territorial integrity of the Republic of the Philippines.
QUESTION: President Duterte ordered that the
remains of former President Marcos be buried at the
LNB.
Petitioners questions this order on the ground that it
has the effect of not just rewriting history as to the
Filipino peoples act of revolting against an
authoritarian ruler but also condoning the abuses
committed during the Martial Law, thereby violating
the letter and spirit of the 1987 Constitution which is a
post-dictatorship charter and a human rights
constitution.
For them, the ratification for the Constitution serves as
a clear condemnation of Marcos alleged heroism.
Is there a violation of Section 1, Article XI and the state
policies under the 1987 Constitution?
ANSWER: NONE. Section 1 of Article XI of the
Constitution is not a self-executing provision
considering that a law should be passed by the
Congress to clearly define and effectuate the principle
embodied therein. As a matter of fact, pursuant thereto,
Congress enacted RA No. 6713, RA 7080, and RA 9485.
Petitioners reliance on Sec. 3(2) of Article XIV and Sec.
26 of Article XVIII of the Constitution is also misplaced.
Sec. 3(2) of Article XIV refers to the constitutional duty
of educational institutions in teaching the values of
patriotism and nationalism and respect for human
rights while Section 26 of Article XVIII is a transitory
provision on sequestration or freeze orders in relation
to the recover of Marcos ill-gotten wealth.
Clearly, with respect to these provisions, there is no
direct or indirect prohibition to Marcos interment at
the LNMB. (Ocampo vs. Enriquez, G.R. No. 225973,
November 8, 2016)
QUESTION: RA 9262 favors only women and denies
the same relief of protection to men. Is this
constitutional?
ANSWER: YES. The unequal power relationship
between women and men is a substantial distinction.
The fact that women are more likely than men to be
victims of violence, the widespread gender bias and
prejudice against women, all make for real differences
justifying the classification under the law.
The distinction between men and women is germane to
the purpose of RA 9262, which is to address violence
| 13
committed against women and children. This is
consistent with the state principle of protection to
women and equality for all. RA 9262 is based on a valid
classification and as such, did not violate the equal
protection clause. (Garcia vs. Drilon, G.R. No. 179267,
June 25, 2013)
QUESTION: Section 5.23 of the RH-IRR provides that
skilled public health professionals are required to
implement the RH law but private health professional
can refuse to do so under the conscientious objection
clause. Is this provision constitutional?
ANSWER: NO. This is discriminatory and violative of
the equal protection clause and the state policy on the
protection of life and the right to life of the unborn
child.
The conscientious objection clause should equally
apply to all medical practitioners without distinction
whether they belong to the public or private sector.
After all, the freedom to believe is intrinsic in every
individual and the protective robe that guarantees its
free exercise is not taken off even if one acquires
employment in the government. (Imbong et. al., vs.
Ochoa, G.R. No. 204819, April 8, 2014)
QUESTION: A leading food manufacturer and the DOST
embarked on field testing for a genetically modified
species of eggplant (BT Talong).
Several farmer groups filed suit (writ of Kalikasan)
assailing the possible dangers to health and the
environment.
The CA noted that there is yet no evidence of possible
health hazards or any danger to the environment.
It also noted that petitioners failed to present evidence
to prove their claim that BT Talong field trials violating
environmental laws and rules.
Nonetheless, the CA issued an injunction to restrain the
respondents from pursuing field trials on BT Talong
under the precautionary principle of protecting the
constitutional right to a balanced and healthful ecology.
Is the CA correct?
ANSWER: YES. The precautionary principle bridges
the gap in cases where scientific certainty in factual
findings cannot be achieved.
By applying the precautionary principle, the court may
construe a set of facts as warranting either judicial
action or inaction, with the goal of preserving and
protecting the environment.
This may be further evinced from the second paragraph
where bias is created in favor of the constitutional
rights of the people to a balanced and healthful ecology.
In effect, the precautionary principle shifts the burden
of evidence of harm away from those likely to suffer
harm and onto those desiring to change the status quo.
(International Service for the Acquisition of Agri-
Biotech Applications Inc. vs. Greenpeace Southeast Asia
Philippines, G.R. No. 209271, December 8, 2015)
For purposes of evidence, the precautionary principle
should be treated as a principle of last resort. When
these features uncertainty, the possibility of
irreversible harm, and the possibility of serious harm
coincide, the case for the precautionary principle is
strongest.
When in doubt, cases must be resolved in favor of the
constitutional right to a balanced and healthful ecology.
Parenthetically, judicial adjudication is one of the
strongest fora in which the precautionary principle
may find applicability. (International Service for the
Acquisition of Agri-Biotech Applications Inc. vs.
Greenpeace Southeast Asia Philippines, G.R. No.
209271, December 8, 2015)
LEGISLATIVE DEPARTMENT
PARTY-LIST
CAN MAJOR POLITICAL PARTIES PARTICIPATE IN
THE PARTY-LIST ELECTIONS?
| 14
YES. Indisputably, the framers of the 1987 Constitution
intended the party-list system to include not only
sectoral parties but also non-sectoral parties.
The framers intended the sectoral parties to constitute
a part, but not the entirety, of the party-list system.
As explained by Commissioner Wilfredo Villacorta,
political parties can participate in the party-list system
"For as long as they field candidates who come from the
different marginalized sectors that we shall designate
in this Constitution." (Atong Paglaum, Inc. v. COMELEC,
GR No. 203766, April 2, 2013).
IS IT NECESSARY FOR A PARTY-LIST NOMINEE TO
ACTUALLY BELONG TO THE MARGINALIZED
SECTOR THAT HE SEEKS TO REPRESENT?
A nominee who does not actually possess the
marginalized and underrepresented status
represented by the party-list group but proves to be
a genuine advocate of the interest and concern of the
marginalized and underrepresented sector
represented is still qualified to be a nominee.
Since political parties are identified by their ideology
or platform of government, bona fide membership, in
accordance with the political party's constitution and
by-laws, would suffice.
In both political or sectoral party or group, party
membership is the most tangible link of the nominees
to their respective parties and to the party-list
system.
Subject to the above, the disqualification of the
nominees does not necessarily mean the
disqualification of the party since all the grounds
for cancellation or refusal of registration pertain to
the party itself. (Atong Paglaum, Inc. v. COMELEC, GR
No. 203766, April 2, 2013).
IS IT NECESSARY FOR A PARTY-LIST NOMINEE TO
ACTUALLY BELONG TO THE MARGINALIZED
SECTOR THAT HE SEEKS TO REPRESENT?
A majority of the members of sectoral parties or
organizations that represent the "marginalized and
underrepresented" must belong to the "marginalized
and underrepresented" sector they represent.
Similarly, a majority of the members of sectoral
parties or organizations that lack "well-defined
political constituencies" must belong to the sector
they represent.
The nominees of sectoral parties or organizations
that represent the "marginalized and
underrepresented", or that represent those who lack
"well-defined political constituencies", either must
belong to their respective sectors, or must have a
track record of advocacy for their respective sectors.
The nominees of national and regional parties or
organizations must be a bona-fide members of such
parties or organization. (Atong Paglaum, Inc. v.
COMELEC, GR No. 203766, April 2, 2013).
Q: WHAT IS THE FORMULA MANDATED BY THE
CONSTITUTION IN DETERMINING THE NUMBER OF
PARTY-LIST REPRESENTATIVES?
A: The House of Representatives shall be composed of
not more than two hundred and fifty members, unless
otherwise fixed by law. (Section 5(1), Article VI of the
1987 Constitution).
The number of seats available to party-list
representatives is based on the ratio of party-list
representatives to the total number of
representatives.
Number of seats available
to legislative districts
_________________ x .20 = Number of seats available
.80 to party-list representatives
This formula allows for the corresponding increase in
the number of seats available for party-list
representatives whenever a legislative district is
created by law.
After prescribing the ration of the number of party-
list representatives to the total number of
representatives, the Constitution left the manner of
allocating the seats available to party-list
| 15
 representatives to the wisdom of the legislature.
(Barangay Association for National Advancement
and Transparency (BANAT v. COMELEC, GR. No.
179271, Apr. 21, 2009)
FOUR INVIOLABLE PARAMETERS TO DETERMINE
WINNERS IN THE PARTY-LIST ELECTIONS:
(1) 20% allocation. The Party-List
representatives shall constitute 20% of the total
number of members of the House including those
under the Parry-List;
(2) 2% threshold. Only those parties garnering a
minimum of 2% of the total valid votes cast for the
Party-List system are qualified to have a seat in the
House of Representatives:
(3) Three-seat limit. Each qualified party,
regardless of the number of votes it actually
obtained, provided that it has secured more than 2%
of the total valid votes cast for party-list system, is
entitled only to a maximum of 3 seats; and
(4) Proportional representation. The additional
seats which a qualified party is entitled shall be
computed "in proportion to their total number of
votes"
HOW DO WE DETERMINE THE NUMBER OF SEATS
IN THE HOUSE OF REPRESENTATIVES ALLOTED
FOR PARTY-LIST REPRESENTATIVES?
BANAT V. COMELEC (2009)
Party-list representatives constitute 20% of the total
number of members of the House of Representative.
(Total number means inclusive of those under the
party-list). From there, the following formula is
derived:
There are presently 220 legislative districts,
according to the BANAT Case there are 55 party-list
seats available. THIS MUST BE FILLED-UP.
Parties receiving at least 2% of the total votes cast for
the party-list system shall be entitled to one seat each
(one seat for every 2%);
No party shall be entitled to more than 3 seats;
The remaining parties (with less than 2%) will be
ranked according to their total votes garnered and
will be entitled to a seat each until the vacant party-
list seats are all filled-up.
DISCIPLINE OF MEMBERS
MAY MEMBERS OF CONGRESS BE SUSPENDED
DURING THEIR TENURE?
YES.
"... each house may determine the rules of its
proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds of
all its Members, suspend of expel a Member. A
penalty of suspension, when imposed, shall not exceed
sixty days."
Section 16 (3), Article VI of the Constitution.
WHAT IS CONTEMPLATED BY DISORDERLY
BEHAVIOR?
The interpretation of the phrase disorderly
behavior is the prerogative of the House concerned
and cannot be judicially reviewed. (Osmena v.
Pendatun, GR L-17144, October 28, 1960)
Note:
Alejandro v. Quezon, 46 Phil. 83 (1924) (suspension
of senator for disorderly conduct for assaulting a fellow
senator)
Osmena vs. Pendatun, 109 Phil. 863 (1960)
(suspension of senator for disorderly bahavior for
imputing bribery to President Garcia)
CAN A SENATOR OR CONGRESSMAN BE SUSPENDED
BY THE SANDIGANBAYAN OR THE OMBUDSMAN?
A: YES. Members of Congress may also be suspended
by the Sandiganbayan or by the Office of the
Ombudsman (Paredes v. Sandiganbayan GR No.
118364. August 10, 1995; Santiago v. Sandiganbayan,
GR No. 128055, April 18, 2001).
The doctrine of separation of powers by itself may not
be deemed to have effectively excluded members of
| 16
Congress from Republic Act No. 3019 nor from its
sanctions.
The order of suspension prescribed by Republic Act
NO. 3019 is distinct from the power of Congress to
discipline its own ranks under the Constitution.
AUTOMATIC SUSPENSION
"SECTION 13. Suspension and loss of benefits. - Any
incumbent public officer against whom any
criminal prosecution under valid information
under this Act or under Title 7, Book II of the Revised
Penal Code or for any offense involving fraud upon
government or public funds or property whether as
a simple or a complex offense and in whatever stage of
execution and mode of participation, is pending in
court, shall be suspended from office.
Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any
law, but if her is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he
failed to receive during suspension, unless in the
meantime administrative proceedings have been filed
against him.
"In the event that such convicted officer, who may
have already been separated from the service, has
already received such benefits he shall be liable to
restitute the same to the Government." (Section 13,
RA 3019)
IS NOTICE AND HEARING REQURED?
A: NO.
The law does no require that the guilt of the
accused must be established in a pre-suspension
proceeding before trial on the merits proceeds.
Neither does it contemplate a proceeding to determine
(1) the strength of the evidence of culpability against
him, (2) the gravity of the offense charged, or (3)
whether or not his continuance in office could influence
the witnesses or pose a threat to the safety and
integrity of the records and other evidence before the
court could have a valid basis in decreeing preventive
suspension pending the trial of the case. Santiago v
Sandiganbayan, GR No. 128055, April 18, 2001
QUESTION:
The House Committee on Justice conducted an
inquiry in aid of legislation into alleged Illegal Drug
Trading at the New Bilibid Prison and the connivance
of personnel of the Bureau of Jail Management and
Penology (BJMP) and former high ranking officials of
the Department of Justice (DOJ). Implicated in the
illegal drug trade were former DOJ Secretary and now
senator Leila De Lima, her former driver Rolando
Dayan, former Bureau of Corrections (BuCOR) Chief
Franklin Bucayu and former DOJ Undersecretary
Francisco Baraan.
The House Committee summoned all of them,
including Senator De Lima (who refused to appear).
Former BuCOR appeared but refused to testify
invoking executive privilege.
May Senator De Lima be compelled to appear and
testify? Can she be disciplined by the House of
Representatives?
ANSWER:
NO. Senator De Lima cannot be compelled to appear
and testify at the hearing being conducted by a
committee of the House of Representatives.
As a matter of inter-parliamentary courtesy, the
Senate and the House are co-equal bodies and cannot
compel the members of the other body to appear at
their hearings. Senator De Lima may be invited and
she may voluntarily appear but she cannot be
compelled.
The House cannot also discipline Sen. De Lima. Under
Section 16 (3), Article VI of the 1987 Constitution,
a senator can only be disciplined by the Senate.
"... each house may determine the rules of its
proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds
of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not
excedd sixty days."
| 17
 QUESTION:
Can former BuCor Chief Bucayu validly invoke
executive privilege? Is he shielded by executive
privilege from responding to the inquiries of the
House Committee? Explain briefly. If the answer is no,
is there any sanction that may be imposed upon him?
SUGGESTED ANSWER:
NO. He cannot invoke executive privilege. Only the
President or the Executive Secretary by order of the
President can invoke executive privilege. Besides, the
matter being asked is not covered by executive
privilege because it does not involve any discussion
with the President. (Senate of the Philippines v.
Ermita, 488 SCRA 13 [2006])
For refusing to testify, he may be cited for contempt
and ordered to be arrested. (De la Paz v. Senate
Committee on Foreign Relations, 519 SCRA 521
[2009].)
QUESTION:
The Senate Justice Committee sent a subpoena to
Davao City Vice Mayor Paolo Duterte requiring him to
appear in the investigation being conducted by the
said Senate Committee with regard to the allegations
made against him by witness Edgar Matobato on the
killings in Davao City and his links to the Davao Death
Squad.
Vice Mayor Duterte refused to attend the hearing on
the ground that there is already a case pending with
the Office of the Ombudsman.
Is he correct?
Answer:
NO. The mere filing of a criminal or and
administrative complaint before a court of a
quasi-judicial body should not automatically bar
the conduct of legislative investigation.
Otherwise, it would be extremely easy to subvert any
intended inquiry by congress through the convenient
ploy of instituting a criminal or an administrative
complaint.
Surely, the exercise of sovereign legislative authority,
of which the power of legislative inquiry is an
essential component, can not be made subordinate to
a criminal or an administrative investigation.
(Standard Chartered Bank v. Senate, GR No. 167172,
December 27, 2007)
SALARIES, PRIVILEGES AND DISQUALIFICATIONS
Q: WHAT IS THE RULE ON THE INCREASE IN THEIR
SALARIES?
A: No increase in said compensation shall take effect
until after the expiration of the full term of all the
Members of the Senate and the House of
Representatives approving such increase. (Article VI
Sec. 10 1987 Constitution)
Q: ARE PER DIEMS, EMOLUMENTS AND
ALLOWANCES INCLUDED IN THE PROHIBITION OF
SALARY INCREASE?
A: NO. What the law contemplates is a fixed annual
compensation or salary. Clearly, per diems,
emoluments and allowances are not included. Hence,
Senators and members of the house are not prohibited
from receiving these allowances.
Q: ARE THERE ANY LIMITS AS TO THE AMOUNTS OF
THESE EMOLUMENTS?
A: The Constitution does not provide for any limitation
in the amount that maybe appropriated. What the
Constitution merely provided under Sec. 20, Art. IX is
that "the COA may audit the books of Congress and it
shall publish the list of expenses incurred by and paid
to the each member."
Q: Is the PDAF Constitutional? (2013)
A: No.
It is unconstitutional for Congress to allocate funds
unto themselves and participate in its implementation
and disbursement.
All prosecutorial organs of the government, within the
bounds of reasonable dispatch, should investigate and
accordingly prosecute all government officials and/or
private individuals for possible criminal offenses
| 18
related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork
Barrel System."
(Belgica, et al. vs. Hon. Sen. Paquito N. Ochoa, GR NO.
208566; SJS President S. Alcantara vs. Hon. Franklin
Drilon, et al., GR No 208493; Pedrito M. Nepomuceno
vs. Pres. Benigno S. Aquino III, Gr No. 209251
(November 19, 2013)
Q: In 2011, the DBM announced that the Aquino
administration would "implement P72.11 billion in
additional projects in order to fast-track
disbursements and push economic growth in light of
the global slowdown and the onslaught of recent
calamities."
Pursuant to this, Budget Secretary Florencio Abad
issued National Budget Circular No. 541 (dated July 18,
2012), establishing a Disbursement Acceleration
Program (DAP) which allows the DBM to withdraw
"unobligated allotments of agencies with low levels of
obligations as of June 20, 2012, both or continuing and
current allotments."
The circular also allows "withdrawn allotments" to be
used to "augment existing programs and projects of any
agency and to fund priority programs and projects not
considered in the 2012 budget but expected to be
started or implemented during the current year. Is this
DAP Constitutional?
A: NO. The DAP is unconstitutional as it violates
Article VI Section 25(5) of the 1987 Constitution which
states that, 'No law shall be passed authorizing any
transfer of appropriations; however, the President...
may, by law, be authorized to augment any item in the
general appropriations law for their respective offices
from savings in other items of their respective
appropriations."
No law has been passed to authorize or legalize DAP
and the funds released under the said mechanism, thus
clearly violating the above-cited constitutional
provision. [Araullo v. Aquino III, 728 SCRA 1 (2014)
and 749 SCRA 284]
Q: WHAT SPECIFIC FEATURES OF DAP RENDER
UNCONSTITUTIONAL?
A: The SC declared as illegal:
(1) cross border transfer of the savings of the
Executive to augment appropriation of other offices
outside the Executive;
(2) funding of projects, activities and programs
that were not covered by any appropriation in the
General Appropriations Act; and
(3) withdrawal of unobligated allotment from the
implementing agencies and the declaration of the
withdrawn, unobligated allotments and unreleased
appropriations as savings prior to the end of the
fiscal year and without complying with the statutory
definition of savings contained in the GAA. [Araullo
v. Aquino III, 728 SCRA 1 (2014) and 749 SCRA
282]
Q: MOTION FOR RECONSIDERATION?
A: The SC in a Decision dated 3 February 2015 affirmed
the unconstitutionality of the Disbursement
Acceleration Program (DAP) while partially granting
the government's motion for reconsideration.
The magistrates affirmed that a significant potion of the
administration's DAP, supposedly created to speed-up
public s[ending, violates Section 25(5), Article VI of the
1987 Constitution and the doctrine of separation of
powers of the executive and legislative branches. The
high court still considered unconstitutional the
following:
(1) The creation of savings from un-obligated
allotments prior to the end of the fiscal year without
complying with the statutory definition of savings
under the General Appropriations Act (GAA), and
(2) The executive department's cross-border
transfer of savings to another branch of
government.
"The court further declares void the use of
unprogrammed funds despite the absence of a
certification by the national treasure for non-
compliance."
Citing the operative fact doctrine, the high
court, however, heeded the Aquino administration's
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motion and ruled that there is no constitutional
requirement for Congress to create allotment classes
within an item. The Constitution does not require the
augmentation of funds to be under the expense
category or allotment class of the GAA. According, so
long as there is an item in the GAA that Congress has set
aside a specified amount of public funds, savings may
be transferred thereto for augmentation purposes."
[Araullo v. Aquino III, 728 SCRA 1 (2014) and 749
SCRA 284]
PARLIAMENTARY IMMUNITIES
Q: WHAT IS IMMUNITY FROM ARREST?
A: Legislators are privileged from arrest while
Congress is "in session" with respect to offenses
punishable by up to 6 years of imprisonment.
Hence, the commission of serious crimes, i.e., crimes
punishable by afflictive penalties or with capital
punishment, does not fall within the scope of the
constitutional privilege.
A member of Congress could only invoke the
immunity from arrests for relatively minor offenses,
punishable at most by correctional penalties. (People
vs. Romeo Jalosjos, February 3, 2000)
Q: MAY A CONGRESSMAN CONVICTED OF RAPE BE
ALLOWED TO ATTEND SESSION IN CONGRESS
PENDING HIS APPEAL?
A: NO. To allow accused-appellant to attend
legislative sessions would constitute an unjustified
broadening of the privilege from arrest bestowed by
the Constitution upon members of Congress.
The trial court's judgement of conviction imports that
the evidence of guilt of the crime charged is strong.
Unquestionably, the continued incarceration of
accused-appellant is a valid and constitutionally
mandated curtailment of his rights to provisional
liberty pending appeal of his conviction. (People v.
Romeo Jalosjos, February 3, 2000)
Q: What is legislative privilege?
A: No member shall be questioned or held liable in
any forum other than his/her respective
Congressional body for any debate or speech in
Congress or in any committee thereof.
Q: What are the limitations on legislative
privilege?
Protection is only against forum other than Congress
itself. Thus, for inflammatory remarks, which are
otherwise privileged, a member may be sanctioned
by either the Senate or the House as the case may be.
The "speech or debate" must be made in performance
of their duties as members of Congress.
Congress need not be in session when the utterance
is made, as long as it forms of legislative action i.e part
of the deliberative and communicative process used
to participate in legislative proceedings in
consideration of proposed legislation or with respect
to other matters with Congress' jurisdiction.
Q: Can a senator-lawyer be disbarred or
disciplined by the Supreme Court for statements
made during a privilege speech?
A: No. The plea of Senator Santiago for the dismissal
of the complaint for disbarment or disciplinary action
is well taken. Indeed, her privilege speech is not
actionable criminally or in a disciplinary proceeding
under the Rules of Court. (Pobre v. Sen. Defensor-
Santiago, A.C. No., 7399, Aug. 25, 2009)
Q: Is it ok for a senator to criticize the Supreme
Court in a privilege speech?
A: No. The Senator's offensive and disrespectful
language definitely tended to denigrate the
institution. It is imperative on the Court's part t re-
instill in Senator/Atty. Santiago her duty to respect
courts of justice, especially this tribunal, and remind
her anew that parliamentary non-accountability thus
granted to members of Congress is not to protect
them against prosecutions for their own benefit, but
to enable them, as the people's representatives, to
perform the functions of their office without fear of
being made responsible before the courts or other
forums outside the congressional hall. (Pobre v. Sen.
Defensor-Santiago, A.C No. 7399, Aug. 25, 2009)
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CONGRESSIONAL ELECTORAL TRIBUNALS
What is the composition of the electoral tribunal?
1. 3 Supreme Court Justices designated by the Chief
Justice; and
2. 6 members of the Chamber concerned (Senate or
HoR) chosen on the basis of proportional
representation from the political parties and parties
registered under the party-list system.
Note: The senior Justice in the Electoral Tribunal shall
be its chairman. Members chosen enjoy security of
tenure and cannot be removed by mere change of party
affiliation.
What is the jurisdiction of the Electoral Tribunals?
Each electoral tribunal shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective members (Sec. 17, Art
VII, 1987 Constitution)
HRET's jurisdiction as the sole judge of all contests
relating to the elections, returns, and qualifications of
members of Congress begins only after a candidate
has become a member of the House of
Representatives. [Marcos v. COMELEC, 318 Phil.329,
397 (1995)]
When will a winning candidate be considered a
member of Congress?
To be considered a Member of the House of
Representatives, there must be a concurrence of the
following requisites: (1) a valid proclamation, (2) a
proper oath, and (3) assumption of office.
The term of office of a Member of the House of
Representatives begins only "at noon on the thirtieth
day of June next following their election." Thus, until
such time, the COMELEC retains jurisdiction. [Reyes v.
COMELEC, G.R. No. 2017264. June 25, 2013]
How should the oath of office be taken by a winning
candidate to be considered a member of Congress?
Section 6, Rule II (Membership) of the Rules of the
House of Representatives provides:
Section 6. Oath or Affirmation of Members. - Members
shall take their oath or affirmation either collectively or
individually before the Speaker in open session.
Consequently, before there is a valid or official
taking of the oath it must be made (1) before the
Speaker of the House of Representatives, and (2) in
open session. [REYES v. COMELEC, GR No 207264.
June 25, 2013]
Question: Can the House Speaker be compelled by
Mandamus to recognize Velasco as the lawful
congressman of Marinduque?
Answer: YES. The administration of oath and the
registration of Velasco in the Roll of Members of the
House are no longer a matter of discretion or judgment
on the part of Speaker Belmonte Jr. He is legally duty-
bound to recognize Velasco as the duly elected
Congressman of Marinduque in view of the ruling
rendered by the SC which is now final and executory.
It is well past the time for everyone concerned to accept
what has been adjudicated and take judicial notice of
the fact that Reyes's ineligibility to run for and be
elected to the subject position had already been long
affirmed by the SC.
Any ruling deviating from such established ruling will
be contrary to the Rule of Law and should not be
countenanced. [Velasco v. Belmonte, Jr. GR No.
211140, 12 January 2016]
Question: Which has jurisdiction over a petition to
expel a member of the House (party-list) - the HRET
or COMELEC? How about expulsion from the party-
list?
Answer: Section 17, Article VI of the 1987 Constitution
endows the HRET with jurisdiction to resolve
questions on the qualifications of members of
Congress. In the case of party-list representatives, the
HRET acquires jurisdiction over a disqualification case
upon proclamation of the winning party-list group,
oath of the nominee, and assumption of office as
member of the House of Representatives.
| 21
In this case, the COMELEC proclaimed Ating Koop as a
winning party-list group; petitioner Lico took his oath;
and he assumed office in the House of Representative.
Thus, it is the HRET, and not the COMELEC, that has
jurisdiction over the disqualification case. [Lico v.
COMELEC (GR No 205505, September 29, 2015]
Answer:
COMELEC was wrong in upholding the validity of the
expulsion of petitioner Lico from Ating Koop, despite
its own ruling that the HRET has jurisdiction over the
disqualification issue.
He can veto a bill.
Question: When does a bill become a law even,
without the signature of the President? Explain.
Suggested Answer:
Under Section 27(1), Article VI of the Constitution, a bill
becomes a law even without the signature of the
President if:
(1) he vetoed it but his veto was overriden by two-
thirds vote of all the members of both the Senate and
the House of Representatives; and

These findings already touch upon the qualification (2) if the President failed to communicate his veto
requiring a party-list nominee to be a bona fide to the House from which the bill originated, within
member of the party-list group sought to be thirty day after the date of receipt of the bill by the
represented. President.

The COMELEC justified its Resolution on the merits of

the expulsion, by relying on the rule that it can decide
intra-party matters as an incident of its constitutionally
granted powers and functions (citing Lokin v.
COMELEC)

The Lokin case, however, involved nominees and not

incumbent members of Congress. In the present case,
the fact that petitioner Lico was a member of Congress
at the time of his expulsion from Ating Koop removes
the matter from the jurisdiction of the COMELEC. [Lico
v. COMELEC (GR. No. 205505, September 29, 2015]

Question: Can the President take active part in the

legislative process? Explain.

Suggested Answer:

The President can take active part in the legislative

process to the extent allowed by the Constitution.

He can address Congress at any time to propose the

enactment of certain laws.

He recommends the general appropriations bill.

He can call a special session of Congress at any time.

He can certify to the necessity of the immediate

enactment of a bill to meet a public calamity or
emergency.
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